Santa Clara Valley Water District (PERB 2531M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PROFESSIONAL & SCIENTIFIC EMPLOYEE
ORGANIZATION,
Charging Party,
v.
SANTA CLARA VALLEY WATER DISTRICT,
Respondent.
Case No. SF-CE-950-M
PERB Decision No. 2531-M
June 23, 2017
Appearances: Clisham & Sortor by David P. Clisham, Attorney, for Professional & Scientific
Employee Organization; Brian C. Hopper, Sr. Assistant District Counsel, for Santa Clara
Valley Water District.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Professional & Scientific Employee Organization (PSEO)
to a proposed decision by a PERB administrative law judge (ALJ), dismissing the complaint
and PSEO’s unfair practice charge against the Santa Clara Valley Water District (District).
The complaint alleged that the District violated the Meyers-Milias-Brown Act (MMBA)1 and
PERB Regulations2 by failing to follow its local rules when considering and denying a unit
modification petition, through which PSEO sought to establish a separate bargaining unit
consisting of certain classifications of professional employees.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references here are to the Government Code.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

________________________
PSEO’s statement of exceptions and supporting brief raise several arguments, most of
which were addressed in one form or another by the proposed decision. The centerpiece of
PSEO’s position is that the ALJ erred by not ordering the District to sever its present
miscellaneous unit, which effectively denies professional employees within that unit their right
to be represented separately from nonprofessional employees, pursuant to MMBA
section 3507.3. The District argues that PSEO’s exceptions are without merit, that the ALJ’s
findings of fact and conclusions of law are supported by the record and applicable law, and that
the Board should adopt the proposed decision.
The Board has reviewed the entire record, the proposed decision, and the parties’
exceptions, responses and supporting briefs in light of applicable law. Based on this review,
we find that the ALJ’s findings of fact are generally supported by the record as a whole and his
conclusions of law are well-reasoned and in accordance with applicable law. We hereby affirm
the result of the proposed decision, subject to the following discussion of issues raised by
PSEO’s exceptions.
PROCEDURAL HISTORY
PSEO filed its unfair practice charge on April 11, 2012 and the District filed a position
statement on April 25, 2012. Following an investigation, on October 23, 2012, PERB’s Office
of the General Counsel issued a complaint, alleging that the District had acted inconsistently
with its local rules by denying PSEO’s unit modification petition seeking to create a separate
bargaining unit composed exclusively of professional employees. This conduct was alleged to
violate section 3507.33 and section 3509, subdivision (b), of the MMBA and PERB
Regulation 32603, subdivision (g).
3 Section 3507.3 provides:
2

________________________
On November 13, 2012, the District filed its answer to the complaint, denying the
material allegations and asserting various affirmative defenses.
On January 3, 2013, an informal settlement conference was held, but the matter was not
resolved.
On March 9, 2015, the District filed a pre-hearing motion to dismiss on the basis that
PSEO’s petition was procedurally flawed and therefore properly denied for noncompliance
with the District’s local rules. PSEO filed its opposition to the motion on March 25, 2015, and
the following day, the ALJ notified the parties by letter of his ruling to deny the District’s
motion without prejudice.
On April 7, 2015, the ALJ conducted a formal hearing in Oakland at which both parties
were represented by counsel and had the opportunity to introduce evidence and examine and
cross-examine witnesses.
On June 17, 2015, the parties filed post-hearing briefs and the matter was submitted for
decision.
Professional employees shall not be denied the right to be
represented separately from nonprofessional employees by a
professional employee organization consisting of those
professional employees. In the event of a dispute on the
appropriateness of a unit of representation for professional
employees, upon request of any of the parties, the dispute shall be
submitted to the California State Mediation and Conciliation Service
for mediation or for recommendation for resolving the dispute.
“Professional employees,” for the purposes of this section, means
employees engaged in work requiring specialized knowledge and
skills attained through completion of a recognized course of
instruction, including, but not limited to, attorneys, physicians,
registered nurses, engineers, architects, teachers, and the various
types of physical, chemical, and biological scientists.
3

________________________
On July 13, 2015, the ALJ issued a proposed decision, which addressed two theories of
liability: that the District had acted inconsistently with its local rules by denying PSEO’s
petition for unit modification; and, that it had also violated its local rules and/or MMBA
section 3507.3 by not, on its own motion, establishing a separate unit comprising all
professional employees currently residing in the miscellaneous unit. Rejecting both theories
as either unsupported by the evidence and/or not a cognizable violation of the MMBA, the ALJ
dismissed the complaint and PSEO’s unfair practice charge.
On August 18, 2015, PSEO filed with the Board a statement of exceptions and
supporting brief, and on September 10, 2015, the District filed its response to PSEO’s
exceptions and a supporting brief.
FACTUAL BACKGROUND
The Employees Association (Association), which is an affiliate of the American
Federation of State, County and Municipal Employees, Local 101 (AFSCME) is the exclusive
representative of the District’s miscellaneous4 unit, which includes both professional and
nonprofessional classifications. The Association is not a party to this case.
PSEO, the charging party in this case, is an employee organization within the meaning of
the MMBA and the District’s local rules, in that it consists of self-described professional and
scientific employees within the District’s miscellaneous unit, and “has as one of its primary
purposes representing those employees in their relations with [the District].” (MMBA, § 3501,
4 PSEO’s statement of exceptions and supporting brief quibble with the ALJ’s
characterization of this unit as a “miscellaneous” rather than “mixed” unit, i.e., one comprising
both professional and nonprofessional employees. However, there is no dispute that the unit in
question contains both professional and nonprofessional classifications, and PSEO’s
exceptions and supporting brief fail to explain the significance of this distinction, other than to
assert that professional employees have an absolute right to separate representation, even in the
absence of a valid petition and identification of an appropriate unit, a contention which we
reject for reasons discussed below.
4

subd. (a)(1).) PSEO disclaims any interest in becoming the exclusive representative of its
members.
Pursuant to the District’s local rules and MMBA section 3507.3, on November 30, 2010,
PSEO filed a unit modification petition with the District in an effort to sever from the
miscellaneous unit employees in ten ostensibly professional classifications. Although PSEO’s
petition was signed by at least 50 percent of the employees in the proposed professional
bargaining unit, the petition disclaimed any interest in becoming the exclusive representative of
employees in the proposed unit. Rather, PSEO sought only to sever from the miscellaneous unit
those positions identified in the petition and to include them in a newly-created professional unit,
which would continue to be represented exclusively by the Association.
On December 16, 2010, the District’s Labor Relations Officer Michael Baratz (Baratz)
denied PSEO’s petition on the basis that two of the ten classifications identified in PSEO’s
petition were not professional employee classifications and thus, the proposed unit was not
appropriate. PSEO objected and the matter was referred to the State Mediation and Conciliation
Service (SMCS) for mediation on March 4, 2011. On the same date, PSEO sent a letter to the
District’s deputy administrative officer, arguing that the petition be expanded to remove all
professionals from the miscellaneous unit and that they be inserted into a newly-created
professional unit to be represented by the Association.
On March 16, 2011, the Association submitted written opposition to the petition, which
asserted that the proposed unit was inappropriate because it would not include all of the
District’s professional employees in the Association’s unit. The Association noted that PSEO
had sought to amend the petition to include all professionals, but, the Association argued, such
an amendment improperly sought to cure a petition after the window period had closed. The
5

________________________
Association also asserted that the petition failed to conform to the District’s local rules because
PSEO, as the petitioning organization, did not seek to represent the proposed unit. According
to the Association, by proposing to retain the Association as the exclusive representative of a
unit proposed by PSEO, PSEO was improperly attempting to force the Association to represent
a particular unit that the Association and its members were not seeking to create or represent.
The Association also asserted that granting PSEO’s petition would likely embroil the District
in an internal union dispute, but, in any event, not one appropriate for the District’s unit-
modification procedure, which expressly requires that the organization petitioning for
modification seek to become the majority representative of the petitioned-for unit.5
On April 21, 2011, at the parties’ request, SMCS Mediator Joseph Rios (Rios) conducted
a card check and apparently confirmed that the 29 petitioning employees who signed PSEO’s
original petition constituted sufficient proof of majority support for the unit of ten classifications
proposed by PSEO’s petition.6 However, Rios made no determination as to the appropriateness
of the proposed unit.
Pursuant to the District’s recently-adopted local rule governing representation
proceedings, on June 29, 2011, Baratz convened a hearing on the petition at which he received
5 The Association’s opposition to PSEO’s petition and to representing a separate unit of
professional employees in the absence of a properly filed petition and representation election is
also set forth in a July 7, 2011 letter by Andrew Baker, counsel for the Association, which
served as the Association’s closing brief in proceedings before the District (Respondent’s
Exhibit D), and in the testimony of AFSCME Council 57 Staff Representative John Tucker,
who was called as witness for the District at the PERB hearing.
6 As noted in the proposed decision, because Rios excluded one classification from the
proposed unit, it appears that his determination of majority support was made on a
classification-by-classification basis, rather than on the proposed unit as a whole. However,
neither party has argued that the manner of determining majority support has affected the result
in this case, and we therefore disregard the error, if any, as non-prejudicial. (Regents of the
University of California (1991) PERB Decision No. 891-H, p. 4.)
6

evidence and heard argument from PSEO and the Association, both of which were represented
by counsel. After completing the hearing, Baratz recommended to the District’s governing board
that the petition be denied. Baratz gave three reasons for denying the petition: (1) PSEO had
failed to show that the proposed professional unit was separate and distinct from employees in
the existing miscellaneous bargaining unit; (2) the proposed unit lacked a community of
interest; and (3) the proposed unit was not the broadest appropriate unit of professionals.
On November 15, 2011, the District’s governing board voted unanimously to deny the
petition based on Baratz’s recommendation.
On April 11, 2012, PSEO filed its charge, which resulted in PERB’s Office of the
General Counsel issuing a complaint on October 23, 2012.
On July 7, 2014, in an apparent attempt to settle the dispute, the District met with
representatives of PSEO and the Association. At this meeting, the District identified 34
classifications in the existing miscellaneous unit which, in the District’s opinion, would
constitute an appropriate unit of professional employees. Significantly, however, the District
did not commit to establishing such a unit on its own motion and informed PSEO that it would
need to amend and re-file its petition, if it wished to pursue the matter. For its part, the
Association repeatedly informed the District that it would not agree to severance of the
professionals into a separate unit, unless required to do so as the result of representation
election following a proper showing of proof of support for PSEO.
On July 28, 2014, PSEO submitted a letter to the District asserting its understanding
that, based on the “agreement” reached at the July 7 meeting, the District would proceed
immediately to establish a separate professional unit consisting of the 34 classifications
previously identified by the District. PSEO’s letter included no proof of support.
7

The District responded the following day by stating that PSEO’s letter had
mischaracterized the District’s position, that the District had provided PSEO with information
as to which classifications the District considered professional in the event PSEO wished to
amend and re-file its petition, but that the District itself had no intention of creating a separate
unit of professionals on its own motion. Although PSEO then began efforts to circulate a
petition to establish a new unit of professional employees, which the Association publicly
opposed, the record includes no evidence that PSEO ever submitted an amended petition or
any other proof of support to the District.
THE PROPOSED DECISION
After a formal hearing and briefing, the ALJ issued a proposed decision in which he
determined that PSEO had abandoned or changed its original theory of liability that the
District’s denial of PSEO’s unit modification petition violated the express terms of the
District’s local rules governing representation proceedings. According to the proposed
decision, the issue framed by PSEO’s briefing before the ALJ was whether the District had
violated its local rules by failing or refusing to modify the existing unit containing professional
and nonprofessional employees, on the District’s own motion, once it was made aware of the
desire of some professional employees, as expressed in PSEO’s petition, to be represented
separately. The ALJ rejected both theories, reasoning that, because PSEO did not seek to
represent the proposed unit exclusively, its unit modification petition did not comply with the
District’s local rules. Absent a valid unit modification petition, the ALJ concluded that no
grounds existed either to question the appropriateness of the miscellaneous unit, or to establish
a separate unit comprising some or all of the professional classifications currently residing in
the miscellaneous unit.
8

THE PARTIES’ POSITIONS
PSEO argues that a petition for unit modification may be presented in the form of a
petition for recognition but that it is unnecessary and unreasonable for the District to require
proof of support, unless a question of representation is presented, i.e., a change of bargaining
representative. In this case, because there is no such question or dispute, PSEO argues that it
should not be required to comply with that portion of the District’s local rules requiring that the
petitioning organization seek to become the exclusive representative of the petitioned-for unit.
For the same reasons, PSEO argues there is no reason for the District to require a representation
election in this case. Without any question or dispute concerning representation, there is nothing
for employees to vote on, because employees do not decide the composition of bargaining units;
rather, employers make such decisions subject to a determination that the unit is “appropriate.”
Additionally, PSEO argues that the present miscellaneous unit is not “appropriate,”
because it contains professional employees who have been denied the statutory right to be
represented in a separate bargaining unit from nonprofessional employees. Even assuming that
PSEO’s proposed unit did not include all professional classifications, PSEO argues that, once the
District was on notice of the desire of some professional employees to form a separate unit, it
had an obligation under MMBA section 3507.3, either to grant PSEO’s petition or, on its own
motion, to establish a more appropriate, separate unit comprising all professional classifications
currently residing in the miscellaneous unit.
PSEO also argues that the proposed decision has not set forth a legally cognizable reason
for dismissing the complaint, because the consent of an incumbent union is not among the
requirements of MMBA section 3507.3 for establishing an appropriate unit of professional
employees separate from nonprofessional employees. It cites PERB Reg. 61450, which
9

expressly contemplates that a public employer may, either by agreement, or without an
agreement, file a petition for unit modification in accordance with this section to “divide [an]
existing unit into two or more appropriate units” or to “delete classifications or positions which
by virtue of change in circumstances are no longer appropriate to the established unit because
said classification(s) or position(s) are not covered by MMBA or otherwise prohibited by
statute or local rule from inclusion in the unit.” (§ 61450, subds. (a)(2), (b)(1).)
The District argues that PSEO’s exceptions are without merit, that the ALJ’s findings
of fact and conclusions of law are supported by the record and applicable law, and that the
Board should adopt the proposed decision. Specifically, the District contends that:
(1) PSEO’s petition failed to comply with the local rules which require that the petitioner
intend to represent the proposed unit exclusively; (2) four of the classifications in the proposed
unit fail to meet the definition of professional employees; and (3) the District correctly
concluded that the proposed unit lacked a sufficient community of interest. The District also
disputes PSEO’s contention that it has any obligation to establish a separate professional unit
comprising all professional classifications currently in the miscellaneous unit, simply because
employees in some classifications desire separate representation.
DISCUSSION
For several reasons, we affirm the dismissal of the complaint and PSEO’s unfair
practice charge. First and foremost, PSEO has not overcome the presumption of correctness
afforded a legislative act to show that the District acted unreasonably in applying or enforcing
any aspect of its local rules.
The MMBA grants public agencies the right to “adopt reasonable rules and regulations”
for the administration of employer-employee relations, including for determining what
10

________________________
constitutes “an appropriate unit” of employees for collective bargaining purposes. (MMBA,
§ 3507, subd. (a)(4).) PERB and judicial authority requires that, when evaluating the
reasonableness of a public agency’s unit determination made pursuant to a local rule, the
party challenging the unit determination bears the burden of demonstrating that the decision
was not reasonable. (Organization of Deputy Sheriffs v. County of San Mateo (1975)
48 Cal.App.3d 331, 338.) Thus, if reasonable minds could differ over the appropriateness of
a determination, PERB should not substitute its judgment for that of the local agency. (Id. at
pp. 338-339; see also County of Riverside (2010) PERB Decision No. 2119-M, p. 13; City of
Glendale (2007) PERB Order No. Ad-361-M, p. 4; Alameda County Assistant Public
Defenders Assn. v. County of Alameda (1973) 33 Cal.App.3d 825, 830.)
Here, PSEO’s petition indisputably failed to comply with Resolution 70-35,
section (9)(A)(11) of the District’s local rules governing unit modification and severance. This
provision requires that an employee organization petitioning for “formal” recognition include,
along with its statement of why the proposed unit is appropriate, a “request that recommends
that the Board of Directors recognize the employee organization as the majority representative
of the employees in the [proposed] unit claimed to be appropriate for the purpose of meeting
and conferring in good faith on all matters within the scope of representation.”7 However,
7 Resolution 70-35, section (9)(B), also includes provisions for “informal” recognition,
which would require the District to consult in good faith with an employee organization not
enjoying majority support within an appropriate unit. However, this section of the District’s
local rules is inapplicable here because the petitioning employees identified by PSEO were
already exclusively represented by the Association, and the local rules expressly state that, “No
employee shall be represented by more than one recognized employee organization for the
purposes of this Resolution,” i.e., employees cannot be simultaneously represented by more
than one employee organization enjoying either formal or informal recognition.
11

________________________
PSEO disclaimed any interest in seeking majority status to represent the petitioned-for unit of
professional employees exclusively in their employment relations with the District.
PSEO has provided no authority, and we have located none, to suggest that requiring an
employee organization seeking to modify an existing unit which it does not represent to also
seek to become the majority representative of the proposed unit is contrary to the MMBA or
PERB decisional law.8 Because there is no allegation or evidence of facial inconsistency
between the District’s local rules and either the MMBA or PERB decisional law, the issue
before the ALJ and the Board is whether the District enforced its local rules in an unreasonable
manner. (County of Monterey (2004) PERB Decision No. 1663-M, p. 2.) However, under the
deferential standard required by the statute and decisional law, PSEO has not shown that the
District acted unreasonably in enforcing its requirement that an employee organization seek to
become the majority representative of the petitioned-for unit. Section 3507.3 prohibits public
agencies from denying professional employees the right to representation separate from
8 County of Riverside (2012) PERB Decision No. 2280-M is distinguishable. In that case
and in an earlier case involving the same parties and substantially the same issues, the Board
held that the employer had unreasonably enforced its local rules by requiring proof of majority
support for a petition to accrete unrepresented employees into an existing unit represented by the
petitioning organization. In the Riverside cases, however, the employer’s local rules were silent
on the issue, and under the circumstances, even PERB Regulations, if applied to “fill in the gap,”
would not require a showing of majority support. (Id. at pp. 7-8; County of Riverside (2011)
PERB Decision No. 2163, pp. 2-5.) The Board reasoned that, to imply a majority support
requirement where the local rules included none would allow the employer to amend its local
rules without meeting and consulting, as required by MMBA section 3507.
By contrast, in the present case, the District’s local rules expressly require a petitioning
employee organization to seek exclusive representative status of the proposed unit, which
necessarily implies a showing of majority support among the employees in the petitioned-for
unit. (See also MMBA, § 3507.1, subd. (b).) In these circumstances, requiring majority support
for exclusive representation of a petitioned-for unit is not patently unreasonable, and whether
that requirement is one that PERB would choose to include in its own Regulations is not at issue.
(Organization of Deputy Sheriffs v. County of San Mateo, supra, 48 Cal.App.3d 331, 338-339;
City of Glendale, supra, PERB Order No. Ad-361-M, p.4.)
12

________________________
nonprofessional employees. It does not, either expressly or by implication, prohibit
professional employees from being represented in a unit along with nonprofessionals in the
absence of a valid unit modification petition, because, absent such petition, there is no basis to
question the appropriateness of the existing miscellaneous unit.
PSEO argues that MMBA section 3507.3 is analogous in purpose to section 9(b) of the
National Labor Relations Act (NLRA),9 which prohibits the National Labor Relations Board
(NLRB) from establishing a unit including both professional and nonprofessional employees,
“unless a majority of such professional employees vote for inclusion in such unit.” (29 U.S.C.,
§ 159.) According to PSEO, if anything, MMBA section 3507.3 is even more protective than
federal law of the right of professional employees to separate representation, because, unlike the
NLRA, it does not even require an employee vote, unless a rival employee organization seeks to
replace an incumbent organization. We disagree.
When interpreting the California labor relations statutes, PERB may take guidance, as
appropriate, from administrative and judicial authorities interpreting analogous provisions of
federal labor law. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 616-617.)
However, where the statutory language is dissimilar, or where the California and federal
statutes serve dissimilar purposes, PERB is not constrained by federal precedent. (Capistrano
Unified School District (2015) PERB Decision No. 2440, p. 15, citing Mount Diablo Unified
School District, et al. (1977) EERB10 Decision No. 44, pp. 8-9.) Unlike PSEO, we read the
NLRA as establishing an opt-in procedure, which presumes separate representation, unless a
majority of professional employees vote otherwise, while, under California law, a public
9 The NLRA is codified at 29 U.S.C. section 151 et seq.
10 Prior to 1978, PERB was known as the Educational Employment Relations Board
(EERB),
13

agency’s establishment of a unit containing professional and nonprofessional employees is
presumptively appropriate, until professional employees have given notice of their desire to opt-
out by filing a valid unit modification, severance or other representation petition. (Organization
of Deputy Sheriffs v. County of San Mateo, supra, 48 Cal.App.3d 331, 338-339; Alameda
County Assistant Public Defenders Assn. v. County of Alameda, supra, 33 Cal.App.3d 825,
830.) Accordingly, PERB and controlling judicial authority have held that the right to separate
representation is not absolute, but must be harmonized with other provisions of the statute.
(Organization of Deputy Sheriffs v. County of San Mateo, supra, at p. 340; County of Yolo (2013)
PERB Decision No. 2316-M, p. 15; Modesto Irrigation District (2005) PERB Decision
No. 1768-M, pp. 6-7.) Because the right of professional employees to separate representation
only arises as the result of a properly-filed representation petition, which may include a
requirement that the petitioning employee organization seek to become the exclusive
representative of the proposed unit, it was not unreasonable for the District to deny PSEO’s
petition to establish a separate unit of professional employees.
Nor has PSEO demonstrated that the District acted unreasonably in declining to sever
some or all professional employees from the miscellaneous unit on its own motion. PSEO is
correct that unit determinations are made by public agencies and are not subject to a vote by
affected employees. (MMBA, § 3507.1; County of Riverside, supra, PERB Decision
No. 2280-M, p. 7, fn. 6.) However, a public agency is not obligated to process a unit
modification, severance or decertification petition that has previously been rejected for failure
to comply with the agency’s local rules, nor to solicit a new, properly-filed petition from an
employee organization, after deficiencies have been identified. (County of Orange (2010)
PERB Decision No. 2138-M, p. 15.) To the contrary, the MMBA and our precedents generally
14

________________________
prohibit public agencies from assisting employee organizations in perfecting petitions
affecting representation matters. (§ 3506.5, subd. (d); City of Fremont (2013) PERB Order
No. IR-57-M, pp. 19-21.) Thus, the failure of PSEO’s petition to comply with the
requirements of the District’s local rules is fatal to either theory of liability advanced by PSEO.
Second, even assuming a properly-filed petition, PSEO has not shown that the District’s
reasons for denying PSEO’s petition were unreasonable interpretations of the “appropriate
unit” criteria set forth in the District’s local rules. Relying on the recommendation of the
District’s Labor Relations Officer, Baratz, the District’s governing board gave three reasons for
denying the petition: (1) PSEO had failed to show that the proposed professional unit was
separate and distinct from employees in the existing miscellaneous bargaining unit; (2) the
proposed unit lacked a community of interest, as it encompassed various classifications with
no apparent commonality, other than their professional designation, while ignoring other
professional classifications within the miscellaneous unit; and (3) the proposed unit was not the
broadest appropriate unit of professionals.11 However, as explained in the District’s decision
denying PSEO’s petition: “While professional employees undeniably have the right to be
represented separately from non-professional employees, the nature of the unit must be
11 PSEO’s reliance on PERB’s Regulations governing representation matters is
misplaced. As pointed out by the ALJ, the Board must enforce and apply rules adopted by
public agencies concerning unit determinations, representation, recognition, and elections.
(MMBA, § 3509, subd. (c).) PERB only has authority to assert jurisdiction and to conduct
representation proceedings under PERB’s own Regulations where the public agency has no
functionally equivalent local rules under which the petitioner can accomplish what it seeks
without undue burden. (County of Orange, supra, PERB Decision No. 2138-M, pp. 9-13; City
of Inglewood (2011) PERB Order No. Ad-390-M, adopting dismissal letter at pp. 2-3.)
Because PSEO could achieve separate representation for professional employees with a
properly-filed petition for unit modification or decertification and a representation election for
exclusive representation in its own name, rather than for continued representation by another
employee organization who opposes severance, it appears that the District’s local rules provide
the functional equivalent of PERB’s Regulations governing severance. Consequently, there
are no grounds for resort to PERB’s Regulations rather than the District’s local rules.
15

appropriate and reflect a community of interest separate and distinct from the other employees
in the existing bargaining unit.” (Joint Exhibit 6.)
PSEO argues that, as of the July 7, 2014 meeting, when the District provided a
comprehensive list of professional classifications in the miscellaneous unit, any dispute over
what constitutes an appropriate unit of professional employees was resolved. In doing so,
PSEO effectively concedes the District’s argument that the unit initially proposed by PSEO
was not appropriate. However, PSEO never filed an amended petition demonstrating proof of
support in the more inclusive unit suggested by the District’s list of professional classifications
or seeking to represent such a unit, both of which are required by the District’s local rules.
Nothing in PSEO’s statement of exceptions or supporting brief challenges the validity of the
District’s stated reasons for rejecting the unit initially proposed by PSEO in the only petition
filed with the District to date. Nor has PSEO explained how the more comprehensive list of
professional employees identified by the District is an unreasonable application of the
appropriate unit or community of interest criteria relied on by the District. Indeed, it now
concedes the appropriateness of that determination. Under the circumstances, reasonable
minds could not even differ over the appropriateness of the District’s unit determination;
rather, in the absence of any contrary evidence or argument, reasonable minds must defer to
the District’s determination that the only unit ever proposed by PSEO was not appropriate.
(Organization of Deputy Sheriffs v. County of San Mateo, supra, 48 Cal.App.3d 331, 338-339;
County of Riverside, supra, PERB Decision No. 2119-M, p. 13; City of Glendale, supra, PERB
Order No. Ad-361-M, p.4.) PERB would exceed its authority if we were to substitute our own
judgment here for that of the District (Alameda County Assistant Public Defenders Assn. v.
16

County of Alameda, supra, 33 Cal.App.3d 825, 830; County of Amador (2013) PERB Decision
No. 2318-M, pp. 8-9), and we therefore decline to do so.
Third, notwithstanding other provisions of the governing statute, in other contexts,
PERB has held that it has no authority to order an incumbent representative to accrete or
otherwise accept representation of a group of employees whom it does not wish to represent.
The principle stems from Long Beach Community College District (1989) PERB Decision
No. 765, an early PERB decision involving unit placement of so-called “residual employees,”
meaning groups of unrepresented employees, who were excluded from bargaining units
established by voluntary recognitions or consent election agreements, but who likely would
have been included in such units, had PERB made the initial unit determination. (Id. at p. 2.)
Even though such employees may, from a logical and community of interest analysis, be best
placed in an existing unit with other represented employees in similar classifications, for policy
reasons, the Board has declined to do so against the wishes of the incumbent representative.
Thus, in Long Beach, approximately 300 full-time faculty members resided in a unit
that had been established more than a decade earlier in accordance with existing regulations
and case precedent, but was hostile to including some 700 part-time faculty members, a
majority of whom sought representation. A plurality of the Board consisting of Members
Craib and Camilli observed that unrepresented residual employees may file a petition for
recognition in a separate unit “because there is no mechanism for being added to the existing
unit if the exclusive representative of that unit chooses not to file a unit modification petition”
to accrete or otherwise accept the residual employees in its unit. (Id. at p. 3.) In adopting a
proposed decision that found a separate unit of certificated part-time instructors would be
appropriate, the Long Beach Board explained that there is no legal authority nor sound policy
17

basis “for forcing upon an existing unit an additional group of employees [whom] the unit does
not want.” (Id. at pp. 5-7, esp. fn. 6.) In subsequent precedential decisions, the Board has
adopted the reasoning of the Craib/Camilli plurality opinion in Long Beach, and the principle
that it would not effectuate the purposes of the PERB-administered statutes to force expansion
of a unit upon an unwilling representative is settled Board law. (Stanislaus County Office of
Education (1993) PERB Decision No. 1022, adopting proposed decision at p. 22; Santa Ana
Unified School District (2010) PERB Order No. Ad-383, p. 3.)
The facts in the present case are somewhat different than in Long Beach and other
residual employee cases, in that the professional employees at issue are not unrepresented, but
are already represented by the Association. However, similar policy considerations apply.
While the District may propose to modify an existing unit pursuant to a properly adopted local
rule (MMBA, § 3507.1, subd. (b)), in the absence of such a proposal, policy reasons suggest
that only the exclusive representative or a rival employee organization seeking to become the
exclusive representative has standing to propose an alternative unit configuration. (Riverside
Unified School District (Petrich) (1985) PERB Order No. Ad-148a, pp. 3-4.) 	Because here,
there has been no valid petition by PSEO under the District’s local rules, nor a majority of
votes cast in a properly-conducted representation election to establish a separate unit and
separate majority representative, we will not attempt to force the Association to represent some
or all of the professional employees currently in the miscellaneous unit in a separate
professional unit.
For all of the above reasons, we affirm the dismissal of the complaint and underlying
unfair practice charge.
18

ORDER
The complaint and underlying unfair practice charge in Case No. SF-CE-950-M are
hereby DISMISSED with prejudice.
Chair Gregersen and Member Winslow joined in this Decision.
19