County of Riverside (PERB 2163M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-497-M
PERB Decision No. 	2163-M
February 18, 2011
Appearances: Weinberg, Roger & Rosenfeld by Alan
G.
Crowley, Attorney, for Service
Employees International Union, Local 721; The Zappia Law Firm by Edward
P.
Zappia,
Attorney, for County
of
Riverside.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: 	This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the County
of
Riverside (County) to the
proposed decision (attached)
of
an administrative law judge (ALJ). The complaint issued by
PERB' s Office
of
the General Counsel alleged that the County violated the Meyers-Milias-
Brown Act (MMBA) 1 when it denied Service Employees International Union, Local 721
's
(SEIU) petitions to add unrepresented per diem employees to three bargaining units
represented by SEIU. The ALJ ruled that the County unreasonably applied its local rules to
deny the petitions.
The Board has reviewed the proposed decision and the record in light of the County's
exceptions, SEIU's response thereto, and the relevant law. 	Based on this review, we find
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

proposed decision to be well-reasoned, adequately supported by the record, and in accordance
with applicable law. Accordingly, the Board adopts the proposed decision
as
the decision
of
the
Board itself,
as
supplemented by the discussion below. 2
DISCUSSION
MMBA section 3507, subdivision (a), authorizes a local public agency 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." Pursuant to this subdivision, the County adopted an Employee Relations
Resolution (ERR) that includes rules for determining appropriate bargaining units and
recognizing an employee organization as the exclusive representative
of
a bargaining unit.
Section
10
of
the ERR governs modification
of
an existing bargaining unit. When an
employee organization petitions to add employees to an existing unit, Section
10
does not
require any showing
of
support among the employees sought to be added.
On August
6,
2008, SEIU petitioned to modify its professional, paraprofessional and
registered nurses bargaining units to include unrepresented per diem employees working in
unit classifications. The County denied SEIU's petitions because they were not accompanied
by
proof that a majority
of
the employees to be added to the units desired to be represented by
SEIU. In the proposed decision, the ALJ concluded that it was unreasonable for the County
to
impose a majority support requirement on SEIU's petitions.
The parties requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office
of
Education (1991) PERB Decision No. 913.) Based on our review of the record, all of the
above criteria are met in this case. Therefore, the parties' requests for oral argument are
denied.

In its exceptions, the County acknowledges that its ERR is silent regarding proof
of
support for a unit modification petition but nonetheless argues that it is necessary
to
imply a
majority support requirement into Section
10
to prevent unrepresented employees from being
"involuntarily unionized against their will." Such a requirement, however, is contrary to weil-
established law governing the addition
of
employees to an existing bargaining unit, which
requires a showing
of
majority support among the employees to be added to the unit only under
certain circumstances.
The National Labor Relations Board (NLRB) does not require a showing
of
majority
support "when the employees sought to be added to an existing bargaining unit have little or
no
separate identity and share an overwhelming community
of
interest with the preexisting unit
to
which they are accreted."
(E.1.
Du Pont
de
Nemours, Inc. (2004)
341
NLRB 607, 608.) 	It only
requires such a showing when the employees to be added historically have been excluded from
the unit, typically (but not necessarily) by agreement between the union and the employer.
(Teamsters National United Parcel Service llegotiating Committee
v.
National Labor
Relations Bd. (D.C. Cir. 1994)
17
F.3d 1518, 1522; Laconia Shoe
Co.
(1974) 215 NLRB 573,
576.)
PERB does not follow the NLRB's approach to accretion. Instead, PERB regulations
require a showing of majority support when adding the requested employees "would increase
the size
of
the established unit by ten percent or more." (PERB Regs. 3278l(e)(l);
61450(e)(l); 81450(e)(l); 91450(e)(l).)3	
If
the addition would not increase unit size
by
ten
3 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 61450(e)(1) applies to unit modification petitions filed under
the MMBA. This regulation, which is identical to the others listed, states in full:
If the petition requests the addition of classifications or positions
to an established unit, and the proposed addition would increase
3

percent or more, no showing
of
majority support is required. (Regents
of
the University
of
California (2010) PERB Decision No. 2107-H.)
As these authorities demonstrate, a showing
of
majority support is not required every
time a union seeks to add employees to an existing bargaining unit. Nor
do
the authorities
apply different rules when a unit modification petition seeks to add unrepresented employees
to a unit. 	Accordingly, we reject the County's argument that a majority support requirement
must be implied in ERR Section 10.4
In the alternative, the County contends that PERB Regulation 61450(e)(l) should apply
in light
of
Section
l0's
silence regarding majority support. 	Pursuant to MMBA section 3509,
subdivision (a), "PERB regulations serve to 'fill in the gap' when a local agency has
not
adopted a local rule on a particular representation issue."5 (County
of
Siskiyou/Siskiyou County
Superior Court (2010) PERB Decision No. 2113-M.) Under this standard, PERB regulations
apply only when the agency has no rule at all that governs a representation issue. (County
of
Orange (2010) PERB Decision No. 2138-M; County
of
Siskiyou/Siskiyou County Superior
Court, supra.) Here, the County has adopted a local rule governing unit modification and,
therefore, PERB's unit modification regulations do not apply.
the size
of
the established unit by ten percent or more, the Board
shall require proof of majority support
of
persons employed in the
classifications or positions to be added.
4 We also note that PERB has consistently held 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, supra; Elk Grove Unified School District (2004) PERB Decision
No. 1688; Salinas Union High School District (2002) PERB Order No. Ad-315.)
5 MMBA section 3509, subdivision (a) states, in relevant part: "Included among the
appropriate powers of the board are the power to order elections, to conduct any election the
board orders, and to adopt rules to apply in areas where a public agency has no rule."
4

MMBA section 3507, subdivision (a) gives the County the ability to directly address its
concern that ERR Section 10 allows unrepresented employees to be added to a bargaining unit
without any showing
of
support: 	"after consultation in good faith with representatives
of
a
recognized employee organization or organizations," the County can amend its unit
modification rule to include a reasonable employee support requirement. The County
may
not
ignore the Legislature's directive by adding requirements to the rule without participating in
the statutorily required consultation. Nor has the Legislature granted PERB the authority to
use its regulations to rewrite a local agency's rules, even
if
the agency urges PERB to do so.
Thus, unless and until a proper amendment of.its unit modification rule occurs, the
County
may
not
lawfully require a showing
of
majority support to add employees to an existing
bargaining unit. 6
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in
this
matter, it is found that the County
of
Riverside (County) violated the Government Code,
Meyers-Milias-Brown Act (MMBA) sections 3503, 3506 and 3509(b), by unreasonably and
unlawfully denying two unit modification petitions submitted by Service Employees
International Union, Local 721 (SEIU) seeking to add per diem employees to three
of
its
existing bargaining units. 	By this same conduct, the County violated the MMBA by
denying
SEIU its right to represent its members and interfering with the rights
of
its employees
to
be
represented by an employee organization.
5
Because no majority support requirement applies in this case, we need not address the
County's exception to the ALJ's finding that adding the per diem employees to the registered
nurses bargaining unit would not increase the unit's size by more than ten percent.

A. 	CEASE AND DESIST FROM:
B 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Rescind the September 22, 2008 and October 1, 2008 denials of SEIU's
unit modification petitions;
W
Such posting shall be
Pursuant to Section 3509(b)
of
the MMBA, it hereby is ORDERED that the County, its
governing board, and its representatives shall:	governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Unreasonably applying the rules in Section
10
of
the County's Employee
Relations Resolution (ERR) regarding unit modification.
2. 	Requiring a showing
of
majority support for a unit modification petition
unless and until the ERR is amended to include such a requirement.
3. 	Denying a modified unit modification petition as untimely when
the
original petition was denied on procedural grounds.
4. 	Denying to SEIU the right to represent its members.
5. 	Interfering with the right
of
employees to be represented by the
employee organization
of
their choice.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind the September 22, 2008 and October
1,
2008 denials
of
SEIU'
s
unit modification petitions;
2. 	Upon request by SEIU, process SEIU's September 25, 2008
modified
petitions in accord with a reasonable interpretation
of
Section 10
of
the ERR;
3. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to County employees customarily
are posted, copies
of
the Notice attached hereto as an Appendix. 	The Notice must be
signed
by
an authorized agent
of
the County, indicating that it will comply with the terms
of
this Order.
Such posting shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable
6

steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
7
4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board, or the General
Counsel's designee. The County shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on SEIU.
Members McKeag and Wesley joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-497-M, Service Employees
International Union, Local
721
v.
County
of
Riverside, in which all parties had the right to
participate, it has been found that the County
of
Riverside (County) violated the Government
Code, Meyers-Milias-Brown Act (MMBA) section 3500 et seq., by unreasonably and
unlawfully denying two unit modification petitions filed by Service Employees International
Union, Local 721 (SEIU).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Unreasonably applying the rules in Section 10
of
the County's Employee
Relations Resolution (ERR) regarding unit modification.
2. 	Requiring a showing
of
majority support for a unit modification petition
unless and until the ERR is amended to include such a requirement.
3. 	Denying a modified unit modification petition as untimely when
the
original petition was denied on procedural grounds.
4. 	Denying to SEIU the right to represent its members.
5. 	Interfering with the right
of
employees to be represented by the
employee organization
of
their choice.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind the September 22, 2008 and October 1, 2008 denials
of
SEIU's
unit rnodification petitions.
2. 	Upon request by SEIU, process SEIU's September 25, 2008
modified
petitions in accord with a reasonable interpretation
of
Section l O
of
the ERR.
Dated: 	COUNTY OF RIVERSIDE
By: Authorized Agent
---------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 721,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-497-M
PROPOSED DECISION
(October 13, 2009)
Appearances: 	Weinberg, Roger & Rosenfeld by Alan G. Crowley, Attorney, for Service
Employees International Union Local 721; The Zappia Law Firm by Edward Zappia, Attorney,
for County of Riverside.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
On November 14, 2008, Service Employees International Union Local 721 (SEIU) filed
an unfair practice charge alleging that the County of Riverside (County) acted inconsistently
with its local rules when it denied SEIU' s original petition and modified petition to add
per diem employees to its existing bargaining units. On December 11, 2008, the General
Counsel of the Public Employment Relations Board (PERB or Board) issued a complaint
alleging that by this conduct, the County committed an unfair practice under Meyers-:tvfilias-
Brown Act (MMBA) section 3509(b), and that by the same conduct the County violated
MMBA sections 3506 and 3503. 1
1 The MMBA is codified at section 3500 et seq. Unless otherwise indicated, all
statutory references are to the Government Code. 	Section 3509(b) provides in part:
A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 or 3507.5 shall be processed as an unfair practice
charge by the board.

An informal settlement conference was held at the PERB Los Angeles Regional Office
on January 20, 2009, but the matter was not resolved.
Formal hearing was held before the undersigned on June 17 and 18, 2009. Upon the
submission of post-hearing briefs, the matter was submitted for decision on September 10,
2009.
FINDINGS OF FACT
Most of the facts are undisputed. The County is a public agency within the meaning of
MMBA section 3501(c). SEIU is a recognized employee organization within the meaning of
Section 3501 (b ), representing four bargaining units of County employees: 	Professional;
Registered Nurses; Para-Professional; and Supervisors. Four other unions represent a total of
nine other units. The County's Employee Relations Resolution (ERR) contains the following
sections:
Section 7. Criteria For Establishing An Appropriate Employee Representation Unit:
In the determination of appropriate employee representation
units, the following factors, among others, are to be considered:
1. Community of interest among the employees.
2. The history of employee relations in a unit and among other
employees of the County.
3. The effect of the unit on efficient operations of County
Service and sound employee relations.
4. Dividing any classification among two or more units is to be
avoided wherever possible.
Section 3503 provides that "Recognized employee organizations shall have the right to
represent their members in their employment relations with public agencies."
Section 3506 requires that "Public agencies and employee organizations shall not
interfere with, intimidate, restrain, coerce or discriminate against public employees because of
their exercise of their rights under Section 3502."
2

5. The existence of common skills and duties, comparable
working conditions or similar educational requirements.
6. 	Each unit should be the largest feasible group of employees
having an identifiable common or related interest without
reference to geographical locations of the same supervisors.
7. No unit shall be established primarily on the basis of the
extent to which employees in the proposed unit have organized.
Section 8 lists the already-established units.
Section 10. Modification of Units provides in part:
1. A registered employee organization may propose the
modification of an established unit by filing a request with the
Human Resources Director (HRD), accompanied by proof that its
represented members comprise 15 percent of the employees in the
unit. The [HRD] may also propose a modification.
2. No such proposal shall be submitted except between July 1
and September I, for immediate determination.
4. If no challenge as provided below [i.e., from any other
recognized union after notice is provided by the County] is filed
and the [HRD] determines that the requested modified unit or
units are not appropriate, he shall notify the employee
organization which requested the unit of his determination and
the reason therefore in writing. The organization may within
seven days, modify its request or request the [HRD] to arrange a
hearing by the Board on its original request.
The County maintains a roster of per diem employees (PDs ), assigned to various
positions corresponding to the job classifications in the SEIU units. 	Some PDs are called on an
as-needed basis and some have regular weekly schedules. They have never been accreted to
any existing SEIU bargaining unit nor have they been represented in their own unit.
On December 17, 2007, SEIU petitioned to represent a unit consisting of all PDs;
attached were authorization cards signed by what SEIU claimed were a majority of PDs. 	On

January 14; 2008,2 the County rejected the petition on the basis that ERR Section 8 lists all
established units and does not allow for a "non-existent unit," and that the petitioned-for unit
did not meet any
of
the ERR' s criteria for an appropriate unit. 3
On August 6 SEIU submitted a new petition seeking to modify three
of
its existing
units (Professional, Para-Professional and Registered Nurses) by accreting the PDs working in
those unit classifications. Attached were authorization cards signed by what SEIU claimed
were a majority
of
PDs in each
of
the three units, based on payroll data provided by the
County. 	SEIU's petition also stated, with regard to each
of
the three units, that
if
there
"are
any other
...
per diem classifications or job titles that have regular comparable positions in the
established
...
unit, to the extent there are others, Local
721
seeks to add them to the
...
Unit
as well." On August
12
Ron Komers (Komers), Human Resources Director (HRD), sent a
notice to SEIU and to the per diem employees, pursuant to ERR Section 10, that a petition had
been filed and that a challenge may be filed within
15
days. No challenge was filed.
	By
letter
of
September 22 to SEIU, Komers asserted that there were additional per diem employees
classified as "Temporary Assistant Per Diem" (T APD) assigned to each
of
the three units who
were not counted in SEIU's petition. 	Komers therefore denied the petition on the basis that
majority status was not shown for any
of
the three units.
On September 25 SEIU submitted a modified petition, deleting the classification
of
TAPD from each
of
the three units; attached was a showing
of
interest which SEIU claimed
was from a majority of PDs in each unit, plus a greater than
15
percent showing from
the
already-represented employees, notwithstanding SEIU's contention that majority support was
All dates hereafter refer to the year 2008 unless otherwise specified.
3 The County's January 2008 denial is not alleged herein as an unfair practice.

not required by either the ERR or the MMBA. On October 1 the County denied the petition on
the basis that ERR Section 10.4 allows for the filing of a modified petition only after the HRD
has determined that the unit is inappropriate. As Komer's September 22 denial was based on
lack of majority support rather than appropriateness, SEIU' s only option would be to submit a
new petition; however, the designated window period for filing a petition is July 1 to
September 1, thus SEIU' s September 25 petition was untimely. 	SEIU sent a response dated
October 10 contesting Komers' interpretation of the ERR, claiming its entitlement to file a
modified petition, and requesting a hearing before the County Board of Supervisors. Komers
responded by letter of November 5, stating that SEIU was not entitled to a Board of
Supervisors hearing, and that majority support was required by both the ERR and the MMBA,
but that according to his spreadsheets, SEIU' s showing fell short in each of the three units.
SEIU does not contest the County's calculations of the numbers of per diem employees
eligible in the three units. It does contend, however, that majority support is not required by
either the ERR or the MMBA.
ISSUE
1. 	Did the County unlawfully deny SEIU's August 6 petition?
2. 	Did the County unlawfully deny SEIU's September 25 petition?
3. 	If so, what is the appropriate remedy?
CONCLUSIONS OF LAW
A local government agency may not adopt rules and regulations which"would
frustrate the declared policies and purposes of the [MMBA] . . . [T]he power reserved to local
agencies ... was intended to permit ... regulations which are 'consistent 	and
the declared purposes of, the statute as a whole.'" (Huntington Beach Police Officers' Assn. v.
City of Huntington Beach (1976) 58 Cal.App.3d 492, 502.) However, when a local agency's
5

regulation is attacked as unreasonable, the burden of proof is on the attacking party.
(Organization of Deputy Sheriffs v. County of San lvfateo (1975) 48 Cal.App.3d 331, 338.)
The August 6 petition
The County denied this petition solely on the basis of lack of majority. 	SEIU contends
that majority support is not required by the ERR, the MMBA, or anywhere else.
The County admits that neither the MMBA or the ERR specify a majority showing for a
modification petition, but argues that majority support is an axiom of labor law. In support,
the County cites MMBA section 3502:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations. 	Public employees also shall have the right to refuse to
join or participate in the activities of employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
(Emphasis added.)
The County argues that because employees have a statutory right of refusal, they cannot
be forced to become members of a unit without their consent. However, Section 3502 protects
neither majority or minority rights, but rather speaks to individual employee rights. Thus, even
when a union petitions for a new unrepresented unit, presents a showing of majority support,
and is recognized by the employer without an election, or when an election is held which the
union wins even by a slight majority, the minority becomes a member of the unit in spite of
their wishes, as unit membership is not considered participation. However, Section 3502
guarantees that no employee is required to become a member of the union or to participate
its activities. I reject the County's argument.
6

The County also notes that Educational Employment Relations Act (EERA)4
section 3544(a) and Higher Education Employer-Employee Relations Act (HEERA)5
section 3573 require a showing of majority support in order for a union to obtain recognition as
the exclusive representative of a unit of employees. Citing Regents of the University of
California (Lawrence Livermore National Laboratory) (1982) PERB Decision No. 212-H for
the proposition that provisions in one act may be imputed to another, the County contends that
the MMBA should be interpreted to include these EERA and HEERA provisions. However,
the EERA and HEERA provisions refer only to recognition of a new, previously unrepresented
unit. On the other hand, PERB Regulation 614506 spells out the MMBA requirements for a
petition to modify an already existing unit, including at subdivision (a)(l) a petition "To add to
the unit unrepresented classifications or positions." PERB Regulation 61450( e )(1) states the
required showing of support:
If the petition requests the addition of classifications or positions
to an established unit, and the proposed addition would increase
the size of the established unit by ten percent or more, the Board
shall require proof of majority support of persons employed in the
classifications or positions to be added.
(Emphasis added.)
It is clear that the additions sought here by SEIU would not increase any of the three
units by ten percent. To conclude that the MMBA requires majority support in this situation is
thus not supported by the plain language of the MMBA, the ERR, or PERB Regulation 61450.
EERA is codified at section 3540 et seq.
5 HEERA is codified at section 3560 et seq.
6 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. PERB regulations, while not controlling over representation issues
where a public agency has adopted its own representation rules and procedures (MMBA
§ 3509(a); PERB Reg. 61000), can be considered when examining a public agency's
application of its own rules. (City of Carson (2003) PERB Order No. Ad-327-M.)
7

I find that SEIU has sustained its burden
of
showing that its August 6 petition
did not
require majority support. Accordingly, I conclude that the County's denial
on
this basis
was
unreasonable and in violation
of
MMBA
section 3 509(b). I also conclude that by the
same
conduct, the County denied SEIU the right to represent its members in violation
of
Section 3503, and interfered with the rights
of
employees in violation
of
Section 3506.
The September 25 petition
This petition was denied due to lack
of
majority support, a contention which
has been
found unreasonable. It was also denied on the basis that
ERR
Section 10.4 does not
allow
SEIU
to
file a modified petition under the instant circumstances.
Section 10.4 provides that after the HRD "determines that the requested
modified
unit
or units are not appropriate" and notifies the petitioner in writing, the petitioner
may
file
a
modified petition or request a hearing by the Board
of
Supervisors. 	The County
contends
that,
as the August 6 petition was denied solely for lack
of
majority, the HRD never reached a
determination
of
whether the modified units were appropriate; therefore no modified
petition
may be filed.
If
the County's interpretation
of
Section 10.4 were to be credited, it could
privilege
the
County to reject a petition on any number
of
procedural grounds, including typographical
errors, and refuse to issue a denial until nearly the end
of
the prescribed window period,
thereby depriving the union
of
the opportunity to file either a modified petition or a
new
one. I
find this position unreasonable, a sort
of
"Catch 22" whereby new petitions could
forever
be
rejected and recognition could forever be denied. Nothing in the ERR provides for a
union's
recourse 	its original petition is denied on a procedural 	I therefore find that 	only
reasonable interpretation of Section 10 .4 is that if the HRD determines that the petition is
defective for any reason and notifies the petitioner in writing, a modified petitionmay
be
filed.
8

Accordingly, I conclude that the County acted inconsistently with any reasonable
interpretation of ERR Section 10.4 and that its conduct violated MMBA section 3509(b ). 	I
also conclude that by the same conduct, the County denied SEIU the right to represent its
members in violation of Section 3503, and interfered with the rights of employees in violation
of Section 3506.
REMEDY
Sections 3509(a) and 3541.3(i) give PERB the power:
To investigate unfair practice charges or alleged violations of this
chapter, and take any action and make any determinations in
respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter.
Here, the County violated the MMBA by unlawfully rejecting SEIU's petitions to
modify three of its represented units to add per diem employees performing unit work. 	It is the
ordinary remedy in such a case that an order issue directing the respondent to cease and desist
from continuing to engage in such conduct. It is also appropriate that the County be ordered to
rescind its denial of SEIU' s petition of September 25, and to process it through its local rules
as a modified petition. It is also appropriate to require the County to post a notice
incorporating the terms of the order. It effectuates the purposes of the MMBA that employees
be informed by a notice, signed by an authorized agent, that the respondent has acted
unlawfully, is being required to cease and desist from its unlawful activity, and will comply
with the order. (Placerville Union School District (1978) PERB Decision No. 69.)
SEIU also urges that PERB issue an order certifying the modified units sought in its
September 25 petition. A similar request was made in County of Ventura (2009) PERB
Decision No. 2067-M. There, the union argued that merely ordering the County to process its
recognition petition through the local rules would result in further delay, and urged that PERB
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issue an order directing an election. The administrative law judge, in his proposed decision,
which was adopted by the Board, rejected the union's request, stating that it was "premature":
The establishment of a bargaining unit was not litigated or set
forth in the complaint, and an appropriate unit has not been
decided by the County's own local rules. 	Under the legislative
scheme set forth in the MMBA and PERB Regulations,
recognition, elections and unit determinations are to be resolved
according to reasonable ruled adopted by the public agency.
[Citations omitted.] 	Challenges to local rules may be pursued
later as an unfair practice charge ....
Similarly, the instant complaint does not allege the establishment of the modified units,
and their appropriateness has neither been litigated nor decided under the County's ERR. 	It is
therefore premature for PERB to certify a modified unit or order its recognition.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the County of Riverside (County) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503, 3606 and 3509(b). The County violated the
MMBA by unreasonably and unlawfully denying two petitions submitted by Service
Employees International Union Local 721 (SEIU) seeking to add per diem employees to three
of its already existing bargaining units. The County also violated the MMBA by denying
SEIU its right to represent its members and interfered with the rights of its employees.
Pursuant to Section 3509(b) of the Government Code, it hereby is ORDERED that the
County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Applying the rules of the County's Employee Relations Resolution
regarding unit modification unreasonably.

2. 	Requiring a showing of majority support for a modification petition in
contradiction of the California Code of Regulations, title 8, section 61450.
3. 	Denying an amended modification petition because no determination
was made on the original petition that the unit(s) sought was inappropriate.
4. 	Denying to SEIU the right to represent its members.
5. 	Interfering with the right of employees to be represented by the
employee organization of their choice.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the September 22 and October 1, 2008, denials of SEIU' s
modification petitions;
2. 	Within 10 days of the date this decision becomes final, begin processing
SEIU's September 25, 2008, modified petition in accord with a reasonable interpretation of the
Employee Relations Resolution;
3. 	Within ten (I 0) workdays of the service of a final decision in this matter,
post at all work locations where notices to County employees customarily are posted,copies of
the Notice attached hereto as an Appendix. 	The Notice must be signed by an authorized agent
of the County, indicating that it will comply with the terms of this Order. Such posting shall
be maintained for a period of thirty (30) consecutive workdays. 	Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. 	Respondent shall provide reports, in writing, as directed by
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the General Counsel or his/her designee. 	All reports regarding compliance with this Order
shall be concurrently served on SEIU.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§. 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. 	Proof of service shall accompany each copy served
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on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Ann L. Weinman
Administrative Law Judge