County of Yolo (PERB 2316M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATIONARY ENGINEERS LOCAL 39,
INTERNATIONAL UNION OF OPERATING |
ENGINEERS, AFL-CIO,
Charging Party, Case No. SA-CE-704-M
vo PERB Decision No. 2316-M
COUNTY OF YOLO, April 23, 2013
Respondent.

Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Stationary
Engineers Local 39, International Union of Operating Engineers, AFL-CIO; Daniel C.
-Cederborg, Assistant County Counsel, for County of Yolo.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION

MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Stationary Engineers Local 39, International
Union of Operating Engineers, AFL-CIO (Local 39) to the proposed decision of a PERB
administrative law judge (ALJ). The ALJ found that the County of Yolo (County) did not
violate its local rules or the Meyers-Milias-Brown Act (MMBA)' in its handling of a
representation petition filed by the Yolo County Probation Association (YCPA). The petition
sought unit modification, decertification and recognition on behalf of Probation Department
peace officer classifications in the County’s General Unit, exclusively represented by Local 39.

The ALJ reasoned that section 3508, subdivision (a) grants peace officers the right to join or

participate in employee organizations made up solely of peace officers, which right cannot be

"The MMBA is codified at Government Code section 3500 et al. All further statutory
references are to the Government Code.

denied by a public agency, provided that appropriate unit determination standards under local
rules are met.
The Board has reviewed the entire record in this matter including Local
39's
statement
of
exceptions and supporting brief and the County's response. 	Based on this review, the Board
concludes that the County violated its local rules, and therefore the MMBA, in its handling
of
the representation petition filed by YCPA. We therefore do not adopt the
ALI'
s proposed
decision as the decision
of
the Board itself for the reasons discussed below.
PROCEDURAL HISTORY
On January
7,
2011, Local 39 filed an unfair practice charge against the County.
On
January
18
and 19, 2011, Local 39 filed an amended charge and request for injunctive relief,
respectively. 	The County responded to the request for injunctive relief on January 24, 2011.
On January 26, 2011, PERB denied the request for injunctive relief and issued an unfair
practice complaint alleging that on November 9, 2010, the County acted inconsistent with and
violated its local rules by unilaterally removing seven
job
classifications from the General Unit
represented by Local 39 and placing them in another bargaining unit represented by a different
exclusive representative without Local
39's
agreement. The complaint alleged that the
County's conduct constituted violations
of
MMBA sections 3503 (an employee organization's
right to represent members), 3505 (a public agency's obligation to meet and confer), 3506 (a
prohibition on interference or discrimination against public employees because
of
their
exercise
of
protected rights) and 3509, subdivision (b) (violation
of
MMBA or a public
agency's local rules processed as unfair practice charge), and PERB Regulation 32603,
subdivisions (a), (b), (c) and (g).2
2 PERB Regulations can be found at California Code of Regulations, title 8,
section 31001 et seq.
2

An informal settlement conference was conducted on February 11, 2011, but the
dispute was not resolved. On June 22, 2011, the County answered the complaint, admitting six
allegations, denying all substantive allegations and any violations
of
law, and asserting
affirmative defenses.
On October 19, 2011, a formal hearing was held in Sacramento, and on December 20,
2011, the case was submitted for decision following receipt
of
Local 39's post-hearing brief.
The County did not file a brief. Thereafter, the ALJ's proposed decision issued on February 2,
2012.
On February 17, 2012, Local 39 filed a timely statement
of
exceptions. On March 8,
2012, the County filed a timely response.
SUMMARY OF FACTS
Since at least February 6, 2005, Local 39 has been the exclusive representative
of
over
600 County employees in 255 job classifications comprising the General Unit.3 The General
Unit includes six peace officer classifications used in the Probation Department: deputy
probation officer I and II; senior deputy probation officer; detention officer I and II; and senior
detention officer.
On July
2,
2010, Jennifer Ellasces (Ellasces), president ofYCPA and deputy probation
officer II, filed a petition for unit modification, recognition and decertification (YCP A petition)
seeking to modify the General Unit to form a separate bargaining unit of peace officers.4
The County and Local 39 entered into memoranda of understanding covering the
General Unit for the periods November
1,
2007 through October 31, 2010 and November
1,
2010 through October 31, 2012.
4 The YCP A petition sought to include the classification of probation aide in the new
unit. Although the record is unclear, the probation aide classification initially appears to have
been removed from the General Unit, but ultimately returned. The record is unclear as to the
3

According to the YCP A petition,
as
of
July
1,
2010, there were
98
peace officers represented in
these classifications. The petition was accompanied by the requisite number
of
signatures.
The YCP A petition requested recognition
of
YCP A as the exclusive representative for the new
unit; it also requested decertification in that the employees in the Probation Department
classifications no longer wished to be represented by Local 39. The YCPA petition was filed
based on "peace officer rights to self-representation under Government Code Section 3508(a)."
As stated in the YCPA petition, the classifications proposed to be represented by YCPA are
full-time peace officer positions under Penal Code section 830.5.
By letter dated July 13, 2010, Mindi Nunes (Nunes), director
of
human resources,
notified Bill Kelly
of
Local 39 that the County had received two decertification petitions in the
General Unit. The petition filed by the Yolo County Public Employees Association (YCPEA)
met the decertification petition requirements under the local rules, i.e., documentation
of
at
least 30 percent support evidencing doubt that the General Unit employees wished to continue
to be represented by Local 39.5 The other petition referenced in Nunes's letter was the YCPA
petition.
By letter dated July 14, 2010, Nunes informed Ellasces that the decertification
component
of
the YCP A petition did not comply with local rules in that it failed to provide
proof that 30 percent
of
the employees in the General Unit no longer wished to be represented
by the incumbent, Local 39. Regarding YCPA's requests for unit modification and
recognition, Nunes stated that the County was "unable to make an affirmative determination
mechanism by which this occurred. Unlike the probation and detention officer classifications,
probation aides do not have peace officer/public safety officer status.
5 An election was held and Local 39 prevailed.
4

that it meets the requirements"
of
the local rules regarding unit determinations. Nunes offered
to meet with Ellasces to discuss the deficiencies
of
the YCP A petition.
That meeting took place on July 20, 2010. According to YCPA, Nunes stated that she
had denied the YCP A petition because she did not have sufficient staff to engage in collective
bargaining with a newly recognized bargaining unit; and that it was her intent to include the
classifications represented by YCP A in one
of
the three existing law enforcement bargaining
units, the Yolo County Investigators Association (YCIA), 6 the Yolo County Deputy Sheriffs
Association (DSA)7 or the Yolo County Correctional Officers Association (YCCOA)8.
On July 22, August 19 and September 15, respectively, Ellasces met with
representatives
of
the existing law enforcement bargaining units to discuss Nunes's proposal
for merger. None
of
the three bargaining units favored merger with the YCPA-represented
Probation Department classifications.
By letter dated July 25, 2010, Ellasces objected to Nunes's determination that "the
appropriate unit for the YCP A is one
of
the three existing law enforcement units in Yolo
County." Ellasces also requested the intervention
of
the California State Mediation and
Conciliation Service (SMCS) pursuant to section 3507.1.
6 YCIA is the exclusive representative of investigators in the District Attorney's Office
in a 10-12 employee unit.
7 DSA is the exclusive representative of deputy sheriffs in a 64-65 employee unit.
8 YCCOA is the exclusive representative of correctional officers, animal services
officers and technicians in a 103-104 employee unit.
5

The parties met with a mediator from SMCS on September 22, 2010. According to
Ellasces, Nunes stated her intent to submit a resolution to the Board
of
Supervisors combining
the three existing law enforcement units, and the classifications represented by YCP
A, into a
single bargaining unit. Mediation proved unsuccessful, and so on October 7, 2010, YCP A
appealed Nunes' s unit determination decision to the Board
of
Supervisors. YCP A continued to
assert the peace officer/public safety officer right to a separate bargaining unit under
section 3508, subdivision (a).
By letter dated October 26, 2010, Nunes informed Stephen Hatch (Hatch), business
representative for Local 39, that YCPA's requests for unit modification and recognition had
been denied; that YCP A had appealed that decision to the Board
of
Supervisors; and that the
Board
of
Supervisors had scheduled the appeal to be heard on November 9, 2010, at a regularly
scheduled board meeting.
Nunes prepared a memorandum dated November 9, 2010, for the Board
of
Supervisors
regarding YCP A's appeal. Nunes reported that the fiscal impact
of
meeting and conferring
with a ninth bargaining unit9 would amount to $42,860 in additional staffing costs for fiscal
year 2011. Nunes's memorandum states in pertinent part:
Since the County has the right under the Meyers-Milias-Brown
Act (MMBA) to determine the appropriate units, it is feasible to
place the probation employees in another appropriate peace
officer unit. The County currently has three bargaining units
composed
of
peace officers: Deputy Sheriffs Association,
Correctional Officers Association, and the Investigator's
Association. 	Each of these associations was approached by
YCP A and each declined to voluntarily participate in a merger
of
peace officer classifications.
There are currently nine Deputy Probation Officer I, 22 Deputy
Probation Officer II, six Senior Deputy Probation Officer, no
9 At the PERB formal hearing, Nunes testified that the County had already bargained
for a ninth bargaining unit, so the YCP A proposal actually amounted to a tenth unit.
6

Detention Officer
I,
46 Detention Officer II, and six Senior
Detention Officer employees. These classifications are the only
public safety classifications in the General Unit.
Currently the Deputy
Sheriffs
Association includes 65 Deputy
Sherriff unit members. The Correctional Officers Association
includes 104 unit members:
	88
Correctional Officers, seven
· Animal Services Officers, two Animal Care Technicians, four
Sheriffs
Operations Technicians, and two
Sheriffs
Service
Technicians. The Investigator's Association includes
12
DA
Investigator II unit members.
There remains a recognized community
of
interest which is
shared by the classifications in the Correctional Officers unit and
the Investigators Association. All classifications share the peace
officer identification requirement and they have similar
paramilitary structures. All classifications are engaged in public
safety occupations.
The alignment
of
the Probation classifications with the
Correctional Officers Association or the Investigators Association
stabilizes the administration
of
employer-employee relations in
that public safety employees are represented by an organization
exclusively made up
of
peace officers and not subordinate to any
other non-peace officer employee organization.
At the hearing on November 9, 2010, the Board
of
Supervisors took the following
action regarding YCPA's appeal:
Supervisor Provenza made a motion to continue the public
hearing to a date certain as the Board [
of
Supervisors] considers
non-proliferation
of
bargaining units, and while staff works with
the various bargaining units regarding possible consolidation.
Motion failed for lack
of
a second.
Minute Order No. 10-222: Motion to consolidate the Yolo County
Probation Association with the Yolo County Investigators Unit.
MOVED BY: Rexroad/ SECONDED BY: Chamberlain
A YES: Rexroad, Chamberlain, McGowan, Thomson
NOES: Provenza
ABSTAIN: None
ABSENT: None
7

Hatch testified at the PERB formal hearing that he initially supported Nunes's
recommendation to deny YCP
A's
requests for unit modification and recognition.
When
Nunes informed him, however, that she was required to remove the Probation Department
classifications from the General Unit, Hatch "modified what I said a little bit and informed the
Board [
of
Supervisors] that I
don't
believe that that was accurate and
if
they should
move
forward with that action, the Union would file an unfair labor practice." When questionedon
cross examination whether peace officers have
"a
right to be in an exclusive unit that
only
has
peace officers in it," Hatch responded, "I
don't
know."
By the Board
of
Supervisors' action on November 9, 2010, the classifications
represented by YCP A were effectively placed into the Investigators Unit represented
by YCIA
for collective bargaining purposes. By letter to Nunes dated December 7, 2010, YCIA
confirmed that Nunes had agreed to request that the Board
of
Supervisors entertain an appeal
by YCIA from the action taken by the Board
of
Supervisors on November 9, 2010.
	YCIA's
letter states that the Board
of
Supervisors' decision had resulted in "dramatically adverse
effects for the members
of
both associations." The letter also states that Nunes had already
begun implementing changes to the terms and conditions
of
employment for the affected
Probation Department classifications "that are causing a loss in pay and benefits." The letter
goes on to state that Nunes "introduced into a unit
of
less than ten investigators over 80 new
represented employees, overwhelming the investigator unit and requiring changes to their
internal procedures, by-laws and board structure that were not anticipated." The letter
requested that Nunes and the Board
of
Supervisors reconsider the Board
of
Supervisors' action
and "agree to establish the Yolo County Probation Association as a stand-alone unit."
By action taken by the Board of Supervisors on January 11, 2011, the Probation
Department classifications that had been removed from the General Unit and placed into the
8

Investigators Unit at the November
9,
2010 meeting were removed from the Investigators Unit
and placed into a separate unit to be represented by YCPA. As described by Nunes at
the
PERB formal hearing, the "Board [
of
Supervisors] subsequently took action to undo their prior
action and place probation officers, [and] detention officers in their own bargaining unit."
The County's local rules are contained in the Employer-Employee Organization
Relations Resolution No. 89-113 (EEORR or local rules), which provide:
Sec.
2.
	Definitions.
I.	
"Unit Modification" means to add positions to or subtract
positions from an established bargaining unit in order to clarify or
reflect a more appropriate unit composition.
Article
II
- Representation Proceedings
Sec. 3. Filing
of
Recognition Petition
of
Employee Organization.
An employee organization that seeks to be formally acknowledged
as the Exclusively Recognized Employee Organization representing
the employees in an appropriate unit shall file a petition with the
Employee Relations Officer [setting forth certain information and
documentation, along with 30 percent employee proof
of
support]:
[,!
...
ii]
Sec. 4. 	County Response to Recognition Petition.
Upon receipt
of
the Petition, the Employee Relations Officer shall
within thirty (30) days determine whether:
a.	
There has been compliance with the requirements
of
the
Recognition Petition, and
b. 	The proposed representation unit is an appropriate unit in
accordance with Sec. 6 of this Article II.
[,l .
..
,!]
9

Sec.
5.
	Open Period for Filing Challenging Petition.
Sec.
6.
	Policy and Standards for Determination
of
Appropriate Units .
. . . Factors to be considered shall be:
a.	
Similarity
of
the general kinds
of
work performed, types
of
qualifications required, and the general working conditions.
b.	
History
of
representation in the County and similar
employment;
...
c.	
Consistency with the organizational patterns
of
the County.
d.	
Number
of
employees and classifications, and the effect
on the administration
of
employer-employee relations created by
the fragmentation
of
classifications and proliferation
of
units.
e.	
Effect on the classification structure and impact on the
stability
of
the employer-employee relationship
of
dividing a
single or related classifications among two or more units.
f.	
The right
of
professional employees to be represented
separately from non-professional employees.
Sec.
7.
	Election Procedure.
An employee organization shall be formally acknowledged as the
Exclusively Recognized Employee Organization for the designated
appropriate unit following an election or run-off election
if
it received
a numerical majority of all valid votes cast in the election
....
Sec.
8.
	Procedure for Decertification of Exclusively Recognized
Employee Organization.
A Decertification Petition alleging that the incumbent Exclusively
Recognized Employee Organization no longer represents a majority
of the employees in an established appropriate unit may be filed
with the Employee Relations Officer only during the month of

January
of
any year following the first full year
of
recognition or
during the period between 150 and 120 days prior to the expiration
date
of
a Memorandum
of
Understanding then having been in effect
three (3) years from date
of
ratification or less, whichever occurs
later.
...
The Employee Relations Officer shall thereupon arrange for a
secret ballot election . . . . Such election shall be conducted in
conformance with Sec. 7
of
this Article II.
[~
..
-~]
Sec. 9. Procedure for Modification
of
Established Appropriate Units.
Requests by employee organizations for modification
of
established appropriate units may be considered by the Employee
Relations Officer only during the period specified in Sec. 8
of
this Article II. Such requests shall be submitted in the form
of
a
Recognition Petition and, in addition to the requirements set forth
in Sec. 3
of
this Article, shall contain a complete statement
of
all
relevant facts and citations in support
of
the proposed modified
unit in terms
of
the policies and standards set forth in Sec. 6
hereof. The Employee Relations Officer shall process such
petitions as other Recognition Petitions under this Article II.
Sec. 10. Appeals.
An employee organization aggrieved by an appropriate unit
determination
of
the Employee Relations Officer under this
Article II may, within fifteen ( 15) days
of
notice thereof, request
the intervention
of
the California State Mediation and Conciliation
Service
...
or may, in lieu thereof or thereafter appeal such
determination to the County Board
of
Supervisors
....
An employee organization aggrieved by a determination
of
the
Employee Relations Officer that a Recognition Petition (Sec. 3);
Challenging Petition (Sec. 5) or Decertification of Recognition
Petition (Sec. 8) - or employees aggrieved by a determination
of
the Employee Relations Officer that a Decertification Petition
(Sec. 8) - has not been filed in compliance with the applicable
provisions of this Article may, within fifteen ( 15) days of notice
of such determination, appeal the determination to the County
Board of Supervisors for final decision.
11

Appeals to the County Board
of
Supervisors shall be filed in writing
with the Clerk to the Board, . . . The County Board
of
Supervisors
shall commence to consider the matter within thirty (30) days
of
the
filing
of
the appeal. The County Board
of
Supervisors may, in its
discretion, refer the dispute to a third party for hearing and
recommendations. Any decision
of
the County Board
of
Supervisors
on the use
of
such procedure, and/or any decision
of
the County
Board
of
Supervisors determining the substance
of
the dispute shall
be final and binding.
Article V - Miscellaneous Provisions
Sec. 18. Construction.
This Resolution shall be administered and construed as follows:
a.	
Nothing in this Resolution shall be construed to deny to
any person, employee, organization, the County, or any
authorized officer, body or other representative
of
the County, the
rights, powers and authority granted by Federal or State law.
PROPOSED DECISION
The ALJ identified the dispute as whether the County violated the EEORR and the
MMBA in its handling
of
the YCP A petition. In concluding that the County complied with its
local rules, the ALJ reasoned that the decision
of
the Board
of
Supervisors to merge the YCPA
proposed unit
of
Probation Department classifications with the YCIA unit
of
investigators from
the District Attorney's Office was final and binding. Despite this conclusion, the ALJ also
held that Nunes was obligated to process YCIA's appeal
of
that decision. The ALJ stated:
Once the Board of Supervisors separated the Probation
Department classes from the General Unit, Nunes could and did
recommend approval
of
the YCP A unit modification petition for
a separate unit of these public safety officers to resolve the YCIA
appeal. On January 11, 2011, the Board of Supervisors adopted
Nunes' recommendation to grant the unit modification petition.
Following that authorization, the ERO granted the petition for
recognition, and YCP A became the exclusive representative for
the Probation unit.
12

Citing section 3508, subdivision (a), the ALJ held that the MMBA grants peace officers
throughout the state the affirmative right to join or participate in peace officer-only employee
organizations, which right cannot be denied or prohibited by a public agency. The ALJ stated:
Nothing in section 3508(a) mandates or requires peace officers to
exercise this right to separateness, and mixed units
of
peace
officers and non-public safety officers exist throughout MMBA
jurisdictions, similar to the General Unit exclusively represented
by Local 39 prior to the current dispute. Once invoked, however,
section 3508(a) confers a right to be separate for peace officers,
providing appropriate unit determination standards under local
rules are met.
The ALJ concluded that Local 39 failed to meet its burden
of
proving that the County violated
its EEORR, and therefore the MMBA, or that the County failed to bargain in good faith.
LOCAL 39'S STATEMENT OF EXCEPTIONS
Local 39 excepts to the findings
of
fact concerning events that occurred after the Board
of
Supervisors' meeting on November
9,
2010. Local 39 argues that the complaint, and
underlying unfair practice charge, are based solely on the action taken by the Board
of
Supervisors on November 9,2010, and the events leading up to that action.
The remainder
of
Local 39's exceptions can be summarized as follows. 	On appeal
of
Nunes's decision to deny the YCPA petition, the Board
of
Supervisors was required to act only
on the requests by YCP A therein made. Instead, it acted on its own motion to do something no
employee organization had requested. As stated by Local 39, "by not voting on the petition the
Board
of
Supervisors in effect denied the petition and did something that no organization had
petitioned for." (Statement of Exceptions, p. 2, Ins. 17-19.)
The action taken by the Board of Supervisors on November 9, 2010, violated the local
rules because it lacked notice; was made without a determination of whether the merged unit
was appropriate in violation of the local rules; and accomplished a de facto decertification of
13

Local 39. Finally, Local 39 contends that the County's actions were unlawful notwithstanding
the fact they were taken in furtherance
of
the statutory objective
of
granting peace officers the
right to their own bargaining unit under section 3508, subdivision (a).
THE COUNTY'S RESPONSE
The County contends that the ALJ reached the proper result in dismissing the
complaint. The County argues that the central issue concerns the right
of
peace officers to a
bargaining unit
of
their own under section 3508, subdivision (a). The County claims that
"[o]verturning the proposed decision would result in a frustration
of
this statute, placing peace
officer employees back in the general unit against their will." The County downplays its own
responsibility in this matter by asserting that "the complexity
of
the situation facing the County
and the relevant employee organizations admittedly resulted in a somewhat convoluted
resolution." The County admits that its conduct was "at worst" only
"a
sloppy implementation
of
the County's EEO RR in difficult circumstances."
DISCUSSION
Overview
Entailed here is the intersection
of
two equally important statutory mandates. One
mandate is found in section 3508, subdivision (a), which states that a governing body may
not prohibit the right
of
full-time peace officers to join employee organizations composed
solely
of
peace officers. The other mandate is found in section 3507, subdivision (a), which
authorizes public agencies to adopt reasonable rules and regulations for the administration
of
employer-employee relations under the MMBA, including rules and regulations governing
representation proceedings. Under PERB precedent, a bargaining unit may be comprised of
both peace officer and non-peace officer classifications. (County
of
Calaveras (2012) PERB
Decision No. 2252-M.) Such a unit is commonly referred to as a mixed unit.
14

Bargaining units, whether mixed or not, need only meet the condition that they be
"appropriate."
10
Under section 3508, subdivision (a), however, employees in an otherwise
appropriate unit who are full-time peace officers have the right to join employee organizations
made up solely
of
peace officers, whether in a stand-alone unit or
as
part
of
a larger peace ·
officer unit.
11
Peace officers electing to exercise that right
do
not
do so
in a vacuum. Like
other employees
of
MMBA employers, they
do so
by availing themselves
of
the representation
rules and procedures provided for under the local rules. So long
as
the rules are reasonable and
10
"The criteria for determining an appropriate unit may include, but should not be
limited to, such factors as community
of
interest among the employees, history
of
representation, and the general field
of
work." (See, e.g., Reinbold
v.
City
of
Santa Monica
(1976)
63
Cal.App.3d 433, 440.)
11
As the court stated in Santa Clara Dist. Attorney Investigators Assn.
v.
County
of
Santa Clara (1975)
51
Cal.App.3d. 255, 264 (Santa Clara):
Although a given peace officer organization may be entitled to
recognition as a separate representation unit, the mere fact that a
group
of
public employees form an organization does not
necessarily entitle them to either a separate representation unit or
"recognized employee organization" status. 	[if] A clear distinction
must be drawn between public employees' rights to organize and
their right to separate bargaining units. As this court stated in
Organization
of
Deputy Sheriffs [of San Mateo County, Inc.
v.
County
of
San Mateo (1975) 48 Cal.App.3d 331] (at p. 339):
"We have noted that MMB differentiates between the designation
of
appropriate bargaining units and the formation
of
employee
organizations."
	(§
3501, subds. (a), (b).) A "recognized employee
organization" is one which has been "formally acknowledged by the
public agency as an employee organization"(§ 3501, subd. (b)) as
being entitled to "meet and confer" with the governing body on
labor/management problems
(§
3505). Representation units may
comprise several recognized employee organizations so long as the
unit is appropriate. Further, Organization
of
Deputy Sheriffs points
out that "[the] plural use of 'employee organizations' [in
section 3508, subdivision (a)] appears to recognize the possibility
of the existence of more than one peace officer employee's
organization within the agency." (48 Cal.App.3d at pp. 341-342.)
(Emphasis in original.) 
15

provide a means to effectuate the desired change in representation,
12
the right afforded peace
officers under section 3508, subdivision (a), is adequately protected.
13
Here, the legal dispute is between the incumbent union, Local 39, and the County.
Local 39 is rightly concerned about a loss in membership, which it argues was occasioned by
the County's failure to comply with its own local rules. While we agree with Local
39
that the
County violated its local rules, we also recognize that the YCP A-represented Probation
Department peace officers were not at fault. 	They no longer desired to remain in a mixed unit
and attempted to exercise their statutory right to form an employee organization comprised
solely
of
peace officers. They complied with the local rules by filing a petition within the
applicable window period, providing all the necessary information and justifications, citing to
the peace officers' statutory right under section 3508, subdivision (a), at every turn. Through
this decision, we seek to harmonize the right
of
peace officers to a peace officer-dedicated
employee organization with the right
of
all public employees and employee organizations to
rely on public agencies to comply with their own local rules in all representation matters.
Mixed Units and Section 3508
Section 3508, provides in pertinent part as follows:
(a) 	The governing body
of
a public agency may, in
accordance with reasonable standards, designate positions or
12
PERB will apply its own MMBA representation rules
if
there are no local .
public agency representation rules that apply. (County
of
Siskiyou/Siskiyou County Superior
Court (2010) PERB Decision No. 2113-M.)
13
See, e.g., Organization
of
Deputy Sheriffs
of
San Mateo County, Inc.
v.
County
of
San Mateo (1975) 48 Cal.App.3d 331,340. In a case involving management and confidential
employees under section 3507.5, the court stated:
Insofar as such rules and regulations are reasonable and are
promulgated after consultation with such organizations, the
"absolute" right to join and to be represented by an organization
of the employee's choice is subject to such rules.
16

classes
of
positions which have duties consisting primarily
of
the
enforcement
of
state laws or local ordinances, and may by
resolution or ordinance adopted after a public hearing, limit or
prohibit the right
of
employees in these positions or classes
of
positions to form, join, or participate in employee organizations
where it is in the public interest to do so. However, the
governing body may
nof
prohibit the right
of
its employees who
are full-time "peace officers," as that term is defined in
Chapter 4.5 (commencing with Section 830)
of
Title 3
of
Part 2
of
the Penal Code, to join or participate in employee
organizations which are composed solely
of
those peace officers,
which concern themselves solely and exclusively with the wages,
hours, working conditions, welfare programs, and advancement
of
the academic and vocational training in furtherance
of
the
police profession, and which are not subordinate to any other
organization.
( d) 	The right
of
employees to form, join and participate in the
activities
of
employee organizations shall not be restricted by a
public agency on any grounds other than those set forth in this
section.
Thus, as the Board held in County
of
Calaveras, supra, PERB Decision No. 2252-M,
while section 3508, subdivision (a), grants full-time peace officers the affirmative right to join
or participate in peace officer-only units, nothing in that section requires peace officers to
exercise this right nor prohibits them from being in mixed units
if
they so choose. So long as
the mixed unit is an appropriate unit, the determination
of
the local agency will be found to be
reasonable. (City
of
Glendale (2007) PERB Order No. Ad-361-M.)
The issue here is not whether the General Unit constitutes an appropriate unit. The
assumed appropriateness
of
the General Unit notwithstanding, the Probation Department peace
officers invoked their right under section 3508, subdivision (a), to join or participate in an
employee organization "composed solely of those peace officers." While section 6(f)
of
the
EEO RR recognizes the "right of professional employees to be represented separately from
17

non-professional employees" in recognition
of
section 3507.3
of
the MMBA, 14
the EEO
RR
contains no corresponding recognition for peace officers under section 3508, subdivision (a).
In describing the scope
of
the right under section 3508, the court in San Bernardino
County Sheriff's Employees' BenefiIAssn.
v.
San Bernardino County
BoardofSiipervisors-
(1992) 7 Cal.App.4
th
602 (San
Bernardino/
5 stated:
Section 3508 grants certain peace officers a right to be
represented by a group composed entirely
of
other peace
officers. In Santa Clara County Dist. Attorney Investigators
Assn.
v.
County
of
Santa Clara (1975)
51
Cal.App.3d 255
[124 Cal.Rptr. 115], peace officers sought to be removed from
an "All County" representation unit. The court granted the relief
sought, explaining,
"It
is clear from section 3508 that peace
officers have the right to a separate public employees
organization, . . . The only question is whether there is a
concurrent right to a separate all peace officer representation unit.
We have concluded that section 3508, read together with other
sections
of
the Meyers-Milias-Brown Act (MMB Act), makes it
equally clear that peace officers are entitled to such separate
representation unit." (Id., at p. 259.) The court in Redondo
Beach Police Officers Assn.
v.
City
of
Redondo Beach (1977)
68 Cal.App.3d 595 [137 Cal.Rptr. 384] also determined that
"Section 3508 is clear: All peace officers are entitled to be
represented by a group from which others are excluded." (Id., at
p. 597.)
14
Section 3507.5 authorizes a local public agency to designate management and
confidential employees and to restrict them from representing an organization that includes
non-management employees. (See Tehema County Superior Court (2008) PERB Decision
No. 1957-C [interpreting the Trial Court Employees Protection and Governance Act in
pari materia with section 3507.5
of
the MMBA, PERB held that a local representation rule
denying representation rights to managerial employees seeking to be represented in a unit
separate from rank-and-file employees represented by same union to be unreasonable].)
15
The court's decision in San Bernardino was overruled with respect to
San Bernardino County designating a welfare fraud investigator or inspector as a peace
officer under section 3508. (§ 3508, subd. (b)(3).) The decision was also overruled "to the
extent that it holds that this section prohibits the County of San Bernardino from designating
the classifications of Probation Corrections Officers and Supervising Probation Corrections
Officers as peace officers." (§ 3508, subd. (c)(3).)
18

The YCPA Petition and the County's Local Rules
YCP A petitioned for modification, recognition and decertification with respect to the
Probation Department full-time peace officer classifications. The decertification component
of
the petition was denied for lack
of
proof
of
support. Although Local 39 argues that there was a
de facto decertification
of
Local 39, Local 39 was not removed as the exclusive representative
of
the General Unit. The modification and recognition components
of
the petition were denied
by Nunes because
of
the potential difficulty and expense
of
engaging in collective bargaining
with an additional bargaining unit
of
County employees, i.e., the proliferation
of
bargaining
units. The modification and recognition determination went before the Board
of
Supervisors
on November
9,
2010. The issue presented here is whether the action taken by the Board
of
Supervisors on November 9, 2010, in response to the YCPA petition violated the County's
local rules. 16
An alleged violation
of
a public agency's local rules may be challenged through the
unfair practice procedure pursuant to section 3509, subdivision (b).
17
(See also City
of
Carson
(2003) PERB Decision No. Ad-327-M.) "[T]he power reserved to local agencies to adopt rules
and regulations was intended to permit supplementary local regulations which are 'consistent
with, and effectuate the declared purposes of, the statue as a whole."' (Huntington Beach
Police Officers' Assn.
v.
City
of
Huntington Beach (1976)
58
Cal.App.3d 492, 502.) The
declared purpose
of
the statute at issue here, section 3508, is to protect the "right to a separate
We agree with Local 39 that the action taken by the Board of Supervisors subsequent
to the November 9, 2010, meeting is not relevant to the issue raised by the unfair practice
complaint, i.e., whether the board violated the local rules by its action at that meeting. We also
recognize that Local 39 does not claim that any of the County's local rules are unreasonable.
17 Section 3509, subdivision (b), provides: "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."
19

all peace officer organization," which "would have little meaning
if
peace officers were placed
in a bargaining unit which has as its 'recognized employee
organization'(§
3501, subd. (b)) an
organization either predominantly composed
of
nonpeace officers or not exclusively concerned
witli peace officefmterests.rr~(SarzBernardzno, siijfra;7 Cal.A.ppAthat
p~
614.}
Under the local rules, unit modification means "to add positions to or subtract positions
from an established bargaining unit in order to clarify or reflect a more appropriate unit
composition." (EEO RR, § 2, Definitions.) By the action taken by the Board
of
Supervisors on
November 9, 2010, the board in effect caused two modifications. First, it subtracted positions
from the Local 39-represented General Unit. Second, it added positions to the YCIA-
represented Investigators Unit. At the time, both Local 39 and YCIA were established
bargaining units. In determining whether the County violated its local rules, we examine each
modification separately.
Regarding the first action, the subtraction
of
positions from the General Unit, we find
that the Board
of
Supervisors did not violate the local rules. The YCP A petition squarely
presented a legitimate modification request based on the peace officers' right to a separate
bargaining unit. The YCP A petition complied with local representation rules. Although not
made explicit by the board by the manner in which it acted, the board in substance overturned
the determination
of
Nunes to deny the YCPA's request for modification. Under the local
rules, the Board
of
Supervisors' action to modify the General Unit by subtracting the peace
officer classifications was final and binding.
Regarding the second action, the addition
of
positions to the Investigators Unit, we
agree with Local 39 that the Board of Supervisors violated its local rules, and therefore the
MMBA, by taking an action that had never been petitioned for by any employee organization,
thereby depriving Local 39, YCPA, and YCIA of notice and opportunity to be heard and
20

depriving the Probation Department peace officer public employees
of
their fundamental right
to be represented by an exclusive representative
of
their own choosing. As Local 39 points
out, none
of
the representation rules set forth in the local rules were complied with respect to
this action. A governing body
must
act on a properly filed petition, not on a petition it wished
or imagined had been filed or hypothesized should have been filed; otherwise its local rules are
rendered meaningless.
While the dispute between Local 39 and the County is over whether the County
violated its local rules, the rights
of
the peace officers who are not represented in this
proceeding cannot be ignored. Local 39 concedes the point to some extent in stating the
following: 	"Theatrically [sic], some action was to be taken because peace officers,
if
they so
desire, are entitled to be in a bargaining unit imposed [sic] only
of
peace officers." (Local 39's
Statement
of
Exceptions and Supporting Brief,
p.
6.) Local 39 then goes on to argue that this
rationale, however, does not apply because "the Board
of
Supervisors not only moved peace
officers out
of
the general unit, but non-peace officers as well thus undermining any logic
of
the move." We disagree that this fact is dispositive. Just because the probation aides were
initially included in the YCPA petition on the mistaken assumption that they had peace officer
status does not mean that the effort to create a separate bargaining unit for the Probation
Department classifications with bona fide peace officer status should otherwise be called into
question. These public employees are entitled to a separate representation unit despite the fact
that the County ran roughshod over its own rules to achieve that result.
Santa Clara, supra,
51
Cal.App.3d. 255 involved similar facts. 	The County of
Santa Clara had created an all-county representation unit, which included the job classification
of district attorney investigator. The district attorney investigators are peace officers. The all-
county unit mainly represented employees who were not peace officers. An association whose
21

peace officer-only membership comprised all
of
the full-time investigators employed by the
County
of
Santa Clara and the Santa Clara District Attorney petitioned the county for
recognition as the representation unit for the district attorney investigators. The association's
petition was denied. The County
of
Santa Clara disputed
thea-ssociatfon'
s-<:ohtention
thac
section 3508 grants full-time peace officers a separate representation unit. The court stated the
following:
The express language
of
the 1965 amendment to section 3508 is
to grant to peace officers as a separate group the right to organize
to concern themselves "solely and exclusively with the wages,
hours, working conditions, welfare programs, and advancement
of
the academic and vocational training in furtherance
of
the
police profession"; thus, to pursue the purposes
of
the MMB Act.
(Santa Clara, supra,
51
Cal.App.3d at p. 262.)
The court concluded that the County
of
Santa Clara could not unreasonably withhold
recognition
of
the association representing the district attorney investigators. "We hold that
section 3508 grants to peace officers (as defined by Pen. Code,§ 830.3, subd. (b)) the right to
be placed in an employee representation unit exclusive
of
and separate from nonpeace officer
employees." (Santa Clara, supra,
51
Cal.App.3d at
p.
263.)
18
Thus, while we find the County in violation
of
its local rules with respect to its action in
adding the Probation Department peace officer classifications to the YCIA-represented
Investigators Unit, we do not find the County in violation of its rules with respect to its action
At the same time, the court found that the association had not put forth any facts
showing a lack of community of interest with the other peace officers in the County of
Santa Clara, or any facts showing that the all peace officer unit was unable to effectively
represent their interests. (Santa Clara, supra,
51
Cal.App.3d at p. 265.)
22

in subtracting those classifications from the General Unit.
19
To
do so
would be
to
unnecessarily penalize the peace officers who, unlike the County, dutifully complied with the
local rules. As a just and proper remedy,20 it is appropriate to order the County
to
pay for any
loss in wages or benefits incurred by employees in the Probation Department classifications
who were merged into the YCIA-represented Investigators Unit as a result
of
the action taken
by the Board
of
Supervisors on November
9,
2010. Because the County reversed that action
by removing those Probation Department classifications from the YCIA-represented
Investigators Unit at the Board
of
Supervisors' meeting on January 11, 2011, rescission
of
the
action need not be ordered by the Board.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found that the County
of
Yolo (County) violated its local rules and thereby violated
the Meyers-Milias-Brown Act (MMBA), Government Code sections 3503, 3506 and 3509,
subdivision (b), and Public Employment Relations Board (PERB) Regulation 32603,
subdivisions (a), (b) and (g) (Cal. Code Regs., tit.
8,
sec. 31001 et seq.), by taking action to add
the Yolo County Probation Association-represented Probation Department peace officer
classifications to the Yolo County Investigators Association (YCIA)-represented Investigators
Unit without a unit modification petition proposing such action having been filed by any
19
We also find that recognition of YCPA as the exclusive representative of the
Probation Department peace officer classifications attached when the modification of the
General Unit occurred.
20 Section 3541.5, subdivision (c), incorporated within MMBA section 3509,
subdivisions (a) and (b), authorizes PERB "to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such affirmative action, including
but not limited to the reinstatement of employees with or without back pay, as will effectuate
the policies of this chapter." 
23

employee organization pursuant to the Employer-Employee Organization Relations Resolution
(EEORR).
Pursuant to section 3509(b)
of
the Government Code, it is hereby ORDERED
that
the
County, its governing board and representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Violating the County's EEORR rules and procedures for modifying a
bargaining unit.
2. 	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.	
Pay for any loss in wages or benefits incurred by employees in the
Probation Department classifications who were merged into the YCIA-represented
Investigators Unit as a result
of
the action taken by the Board
of
Supervisors on November 9,
2010.
2. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily 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.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The County
24

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 the Stationary
Engineers Local 39, International Union
of
Operating Engineers, AFL-CIO.
Members Huguenin and Banks joined in this Decision.
25

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. SA-CE-704-M, Stationary Engineers
Local 3
9,
International Unioff
of
Operating Engineers;
AFL-CIO
v:
CoTinty oJ-Yolo; in Which--
all parties had the right to participate, it has been found that the County
of
Yolo (County)
violated the Meyers-Milias-Brown Act (MMBA), Government Code sections 3503, 3506
and 3509, subdivision (b), and Public Employment Relations Board Regulation 32603,
subdivisions (a), (b) and (g) (Cal. Code Regs., tit.
8,
sec. 31001 et seq.), by taking action to
add the Yolo County Probation Association-represented Probation Department peace officer
classifications to the Yolo County Investigators Association (YCIA)-represented Investigators
Unit without a unit modification petition proposing such action having been filed by any
employee organization pursuant to the Employer-Employee Organization Relations Resolution
(EEORR).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Violating the County's EEORR rules and procedures for modifying a
bargaining unit.
2. 	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:
Pay for any loss in wages or benefits incurred by employees in the Probation
Department classifications who were merged into the YCIA-represented Investigators Unit as a
result
of
the action taken by the Board
of
Supervisors on November 9, 2010.
Dated: 	COUNTY OF YOLO
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.