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DecisionDescriptionPERC Vol.PERC IndexDate
2788M City of Pasadena
1309.04000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Efficiency of Operation
The City did not unreasonably apply its local rules when it found that any labor negotiation efficiencies to be gained by placing all non-sworn Police Department employees into a single bargaining unit represented by a single exclusive representative were offset by the increase in the number of bargaining units and by the inefficiency of fragmenting classifications between more than one unit. Unit proliferation is not determinative by itself; for instance, potential inefficiency resulting from such proliferation can be offset by other factors, such as providing residual unrepresented employees a reasonable unit placement and therefore an opportunity to exercise their statutory rights. (Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, pp. 30-31 [despite employer’s prediction regarding potential future inefficiencies, employer was required to create a separate unit for residual unrepresented employee group where union representing larger unit had declined opportunity to have the residual employees added]; Los Rios Community College District (2018) PERB Decision No. 2587, p. 7 [efficiency argument militates against severance only if there is concrete evidence that an employer’s operational efficiency will be unduly impaired].) more or view all topics or full text.		 46 61 09/01/21
2788M City of Pasadena
1309.03000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Community of Interest
The City reasonably rejected petitioner’s claim that the petitioned-for employees have a community of interest separate and distinct from those employees in the established General Municipal Employees and Clerical and Technical bargaining units. Working conditions, such as round-the-clock work shifts and difficult interactions with the public—the primary community of interest factors petitioner addressed—are neither unique to the petitioned-for unit nor always sufficient on their own to warrant separate representation. (Los Rios Community College District (2018) PERB Decision No. 2587, p. 5; City of Lodi (2010) PERB Decision No. 2142-M, adopting proposed decision at p. 10.) more or view all topics or full text.		 46 61 09/01/21
2788M City of Pasadena
1309.02000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Bargaining/Representation History
City reasonably determined that the proposed unit is not appropriate, where the petitioned-for unit would include the City’s 12 unrepresented Police Supervisors, in addition to nearly 80 employees severed from two represented bargaining units. The City reasonably found the positive history of labor relations spanning several decades evidenced a stable collective bargaining relationship weighing against severing classifications from established units. The City’s determination reflects the principle that severing classifications from an established unit can destabilize negotiating relationships. (Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.) Accordingly, maintaining continuity generally weighs against severance, absent proof that collective negotiations are incapable of addressing the needs of a discrete minority within an existing unit. (Ibid.) Even if the incumbent unions did not achieve bargaining success in every area of concern to non-sworn police personnel, petitioning Association failed to demonstrate that any lack of bargaining success was due to the incumbents’ failure to represent non-sworn personnel interests adequately in relation to other classifications. (State of California (2011) PERB Decision No. 2214-S, p. 9 [severance petitioner required to show that lack of bargaining success resulted from the incumbent unions’ failure to represent adequately the petitioned-for employees].) more or view all topics or full text.		 46 61 09/01/21
2788M City of Pasadena
1309.01000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); In General/Definition of Appropriate Unit
It is well established that “while employees have the right to choose which employee organization, if any, they want to represent them, they have no right to choose the bargaining unit in which their classification or position is placed.” (Regents of the University of California (2010) PERB Decision No. 2107-H, p. 24; City of Livermore, supra, PERB Decision No. 2525-M, p. 14, fn. 6.) more or view all topics or full text.		 46 61 09/01/21
2788M City of Pasadena
1309.01000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); In General/Definition of Appropriate Unit
MMBA section 3507, subdivision (a) authorizes public agencies to “adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations.” Such local rules may include provisions for, among other things, determination of appropriate bargaining units. (§ 3507, subds. (a)(3), (a)(4).) more or view all topics or full text.		 46 61 09/01/21
2788M City of Pasadena
1308.01000: REPRESENTATION ISSUES; SEVERANCE; In General
While a severance petitioner has the burden of proving its proposed unit is an appropriate unit, it need not demonstrate that its proposed unit is “the ultimate unit or the most appropriate unit.” (City of Glendale (2021) PERB Decision No. 2773-M, p. 26, citing City of Lodi (2010) PERB Decision No. 2142-M, adopting proposed decision at p. 10; Alameda County Assistant Public Defenders Assn. v. County of Alameda (1973) 33 Cal.App.3d 825, 830 (Alameda); County of Orange (2016) PERB Decision No. 2478-M, adopting proposed decision at p. 8.) To meet its burden, a severance petitioner must show that the proposed unit has a community of interest separate and distinct from other employees in the existing bargaining unit. (Alameda, supra, 33 Cal.App.3d at p. 831; Glendale, supra, PERB Decision No. 2773-M, p. 27.) However, if the existing bargaining unit was certified by PERB, the severance petitioner must show that the proposed unit is “more appropriate” than the existing unit. (Glendale, supra, PERB Decision No. 2773-M, p. 27, fn. 14.) more or view all topics or full text.		 46 61 09/01/21
2788M City of Pasadena
1308.01000: REPRESENTATION ISSUES; SEVERANCE; In General
PERB applies its own Regulations regarding severance, decertification, or unit determination if an MMBA employer either has no applicable rule on such a topic or has adopted an unreasonable rule. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 8.) more or view all topics or full text.		 46 61 09/01/21
2788M City of Pasadena
1104.01000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; In General; Conduct of Hearing
Where parties agreed that joint exhibits and stipulated facts would form the sole evidentiary record in this matter, the ALJ found the record appropriate for a decision pursuant to PERB Regulation 32207, which provides: “The parties may submit stipulated facts where appropriate to the Board agent. No hearing shall be required unless the parties dispute the facts in the case.” more or view all topics or full text.		 46 61 09/01/21
A468E American Indian Model Schools
1406.01000: GENERAL LEGAL PRINCIPLES; MOOTNESS; In General
An appeal seeking an election will be dismissed as moot where PERB’s Office of General Counsel grants an intervening petition seeking an election. more or view all topics or full text.		 43 68 10/19/18
2758Ma County of Ventura
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
An error or omission in a remedial order is a proper subject of reconsideration under the newly discovered evidence standard. However, this is a narrow avenue that does not allow parties to reassert remedy arguments that the Board has already considered and rejected. (discussing cases illustrating appropriate subjects for reconsideration on this ground, p. 3.) more or view all topics or full text.		 46 33 07/20/21
2758Ma County of Ventura
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
The “grounds for requesting reconsideration of a final Board decision are limited to claims that: ‘(1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence.’” (p. 2.) more or view all topics or full text.		 46 33 07/20/21
2775M County of San Joaquin
1205.02000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Access - Remedy for Unfair Practice
An appropriate remedy for employer’s unlawful access restriction includes a cease and desist order and notice posting. more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right
A long line of precedent illustrates that otherwise valid access restrictions nonetheless interfere with protected rights if they are discriminatory in either scope or application. “Whatever the occasion or cause, if the limited intrusion into worktime and work areas is permitted, it cannot be denied for other, equally or less intrusive solicitation or concerted employee activities.” (Petaluma, supra, PERB Decision No. 2485, p. 50.) Indeed, PERB has many times applied these principles to find that rules restricting union activity during working time are impermissible when a similar level of non-business activity is permitted. (County of Orange, supra, PERB Decision No. 2611-M, pp. 3-4; Regents of the University of California (Irvine), supra, PERB Decision No. 2593-H, pp. 8-9.) (p. 44.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
1000.02124: SCOPE OF REPRESENTATION; Safety of Employees
Health and safety concerns are a mandatory subject of bargaining. (Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 19.) (p. 41.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver
A “waiver of statutory rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional relinquishment’ of a given right.” The party asserting the affirmative defense of waiver carries “the burdens of production and persuasion.” (p. 40.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver
“A union and employer may agree to restrict union activity during paid, non-working time, as long as the restriction does not seriously impair employees’ right to communicate about union matters.” (Omnitrans, supra, PERB Decision No. 2030-M, p. 21.) However, a “waiver of statutory rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional relinquishment’ of a given right.” (p. 40.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
1404.02000: GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION; Board's Jurisdiction To Interpret Contracts
While PERB lacks the authority to enforce contracts, it may interpret them when necessary to resolve an unfair practice allegation. (pp. 39-40.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right
The MMBA affords both “employee and non-employee representatives of employee organizations alike, access to areas in which employees work.” (Riverside, supra, PERB Decision No. 2233-M, p. 8.) The MMBA does not require employee stewards to shoulder the burden of handling all union matters that require physical access to work areas. (p. 37.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
1103.05000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
Employer’s failure to mention any privacy concerns when denying union’s access request waived the employer’s ability to raise privacy concern as a defense at hearing. (pp. 35-36.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right
Employer’s failure to mention any privacy concerns when denying union’s access request waived the employer’s ability to raise privacy concern as a defense at hearing. (pp. 35-36.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right
Because an access request is a form of information request and SEIU made a presumptively appropriate request, the County was obligated not to summarily refuse it but rather to raise any concerns it had and attempt in good faith to reach an agreement. (See, e.g., Tulare, supra, PERB Decision No. 2697-M, pp. 13-14.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
1000.02002: SCOPE OF REPRESENTATION; Access - Subject of Bargaining
Access rights are within the scope of representation. (p. 35.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right
Unions have a significant task in evaluating the many complaints and issues that employees bring to them and deciding which ones merit a grievance or other action, and on-site inspection is a critical component of this task. (New Surfside Nursing Home, supra, 322 NLRB at p. 535 [while employees can report information to union representative based on their direct observations, the union is entitled to investigate independently before deciding whether employees have raised a meritorious issue that union should pursue]; Gilberton Coal Co. (1988) 291 NLRB 344, 348 [onsite inspection allows the Union to “determine the current accuracy of the employees[’] allegations” regarding health conditions at the employer’s facility].) (pp. 31-32.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right
A union’s right to reasonable access includes access to work areas for the purpose of monitoring workplace health and safety conditions. In this regard, an access request is akin to an information request, and there is no dispute that “workplace safety is firmly within the scope of representation.” (City of Santa Maria (2020) PERB Decision No. 2736-M, p. 23, citing International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 275.) (p. 30.) more or view all topics or full text.		 46 20 06/30/21
2775M County of San Joaquin
401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right
The availability of non-work areas within or near the workplace where union representatives may meet with employees during their non-work time may be considered when assessing the reasonableness of an employer’s restrictions. (Riverside, supra, PERB Decision No. 2233-M, p. 9.) But the employer must demonstrate “that such alternative venues are a reasonable substitute for more traditional venues.” (Id. at p. 10, citing UCLA Medical Center, supra, PERB Decision No. 329-H.) (p. 29.) more or view all topics or full text.		 46 20 06/30/21