City of Livermore (PERB 2525M)

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SEAL OF THE STAR
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA
BLAINE DREWES,
Charging Party, 	Case No. SF-CE-1177-M
v. 	PERB Decision No. 2525-M
CITY OF LIVERMORE, 	May 4, 2017
Respondent.
Appearance: E. Kevin Young, Assistant City Attorney, for City of Livermore.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions by the City of Livermore (City) to the proposed decision (attached) of
an administrative law judge (ALJ). The complaint alleged and the proposed decision concluded
that the City had violated the Meyers-Milias-Brown Act (MMBA)1 and PERB Regulations2 by:
(1) maintaining and enforcing an unreasonable local rule providing that no unit modification
petition be granted unless the proposed modification enjoys the support of at least 60 percent of
affected employees; and (2) unreasonably applying the City’s local rules governing unit
determinations by failing to provide written findings when denying a unit modification petition
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.

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filed on November 19, 2013 by Charging Party Blaine Drewes (Drewes) and other City
employees exclusively represented by the Association of Livermore Employees (ALE).3
The City has excepted to the ALJ’s conclusion that Drewes is a proper charging party
and has asserted several grounds in support of this exception. The City has also excepted to
two of the ALJ’s factual findings as unsupported by the record. It argues that the ALJ ignored
that portion of the parties’ stipulated facts indicating that the City processed the petition based on
a mistaken belief that ALE supported the proposed modification. The City similarly argues that
the ALJ ignored testimony from the City’s Administrative Services Director Doug Alessio
(Alessio) demonstrating that the City appropriately considered and applied the community of
interest criteria contained in section 7 of the City’s Employer-Employee Relations Resolution
(EERR) when making its unit determination in this matter. 	Drewes has filed no exceptions, nor
a response to the City’s exceptions.
The Board has reviewed the City’s exceptions, the proposed decision and the entire
record in light of applicable law. Based on this review, we conclude that the ALJ’s findings of
fact are adequately supported by the record and that her conclusions of law are well-reasoned
3 As recounted in the ALJ’s factual findings, the unit modification petition proposed
severing certain classifications from an existing bargaining unit of clerical, professional,
technical, maintenance and operations employees represented by ALE and forming a separate
bargaining unit consisting solely of employees in the Airport and Water Resources Divisions
of the City’s Public Works Department. Like the ALJ, we make no determination as to the
appropriateness of the unit proposed by the petition signed by Drewes and other employees,
nor, in the absence of findings by the City on whether Drewes and fellow City employee
Shelby Anderson (Anderson) were acting as employees, or as representatives of an employee
organization, do we rule on whether they had standing to file and have a unit modification
petition processed under the City’s local rules.
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and in accordance with applicable law. We therefore adopt the proposed decision as modified4
as the decision of the Board itself and subject to the following discussion of issues raised by
the City’s exceptions.
DISCUSSION
The City excepts to two factual findings as unsupported by, or contrary to, the record. It
also excepts to the ALJ’s legal conclusion that Drewes is a proper charging party to pursue the
present unfair practice case inasmuch as he lacked standing under the City’s local rules to file a
unit modification petition in the first place. We first address the City’s exceptions to the ALJ’s
factual findings and then proceed to the issue of standing.
A. 	Whether the ALJ Improperly Ignored Evidence that the City Processed the Unit
Modification Petition on the Mistaken Belief that it was “Supported” by ALE
The City contends that the ALJ considered only that part of the parties’ stipulated facts
indicating that Drewes and Anderson “jointly submitted a unit modification petition” and that
she disregarded that portion of the stipulated facts indicating that the City had initially processed
the petition based on its mistaken belief that it was “supported” by ALE, the recognized
employee organization to which both Drewes and Anderson belonged. The significance of this
exception is not entirely clear. Notably, the City does not contend that it mistook Drewes and
Anderson as authorized representatives of ALE when they filed the unit modification petition,
but only that the City believed that ALE “supported” the petition, and that ALE only disavowed
the proposed modification after City Manager Marc Roberts (Roberts) advised ALE and affected
employees that he intended to grant the petition, as revised, and, additionally, to remove other
4 Aside from stylistic changes, the ALJ’s proposed remedy has been modified to
conform to the appellate court’s decision in City of Palo Alto v. Public Employment Relations
Board (2016) 5 Cal.App.5th 1271, review denied (Mar. 15, 2017), and to the Board’s electronic
posting requirement announced in City of Sacramento (2013) PERB Decision No. 2351-M.
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employees not identified in the petition from the ALE-represented unit for inclusion in the
separate unit proposed by Drewes and the other Airport and Water Resources Division
employees who filed the petition.
Regardless of its significance or lack thereof, the City’s contention is flatly contradicted
by the record, including Roberts’ contemporaneous statements regarding the petition. On
November 25, 2013, Roberts directed an interoffice memorandum to employees in the Airport
and Water Resources Divisions of the Public Works Department and to Mike Pato, President of
ALE. Roberts’ memo acknowledged receipt of the unit modification petition and then explained
that, “[w]hile I have met with representatives of the employee classifications on behalf of whom
the petition was filed[,] I have not met with the current representatives of the classifications.”
(Joint Exhibit N, emphasis added.) From context, there can be no doubt that Roberts viewed the
petitioning employees to have interests that were separate and potentially at odds with “the
current representatives of the classifications,” i.e., with ALE. Accordingly, Roberts’ memo
indicated that he would not make a decision on the unit modification petition until “after I have
had an opportunity to meet with representatives of A.L.E.” 	(Ibid.) The memo then invited “the
leadership of A.L.E. to contact [his] office to set up a date and time to meet regarding the issues
[] raised in the petition.” (Ibid.) Roberts’ memo does not explain why it would be necessary to
schedule a separate and additional meeting with “the leadership of A.L.E.,” if, as the City argues
in its exceptions, he and other City officials were operating under the belief that ALE was
“supporting” the unit modification proposed by Drewes and the other signatories of the petition.
On January 7, 2014, Roberts sent an e-mail message addressed to “All Association of
Livermore Employees [sic] Affected by the Proposed Unit Modification,” in which he referenced
the unit modification petition request “from employees within the Water Resources and Airport
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Divisions,” and discussed the possible outcomes. (Responsent’s Exhibit F1.) As an attachment,
Roberts’ message included a Draft Decision, which he characterized as “subject to further
revision based upon input from the impacted employees prior to becoming a Final Decision.” He
then encouraged the petitioning employees, i.e., those employees who signed the unit
modification petition, “to coordinate their comments through Blaine Drewes or Shelby
Anderson,” while non-petitioning employees were “encouraged to provide their input via the
ALE leadership.”
The Draft Decision attached to Roberts’ January 7, 2014 message began by noting that
Roberts had “met with representatives of the employee classifications on behalf of whom the
petition was filed as well as representatives of ALE, the current Representation Unit of the
classifications.” (Joint Exhibit F2.) In addition to distinguishing clearly between the two
groups, Roberts’ Draft Decision reveals his understanding that these two groups had divergent
interests, as the petition for unit modification would, according to Roberts’ message, not only
create a separate bargaining unit consisting of 50 employees in 28 job classifications, but the job
classifications and employees in the newly-created unit would no longer be represented by ALE.
As with his previous memo of November 25, 2013, Roberts’ January 7, 2014 message to
employees and the attached Draft Decision thus clearly undermine the City’s contention on
appeal that it processed the unit modification petition on the mistaken belief that it was somehow
“supported” by ALE.
Additionally, on January 9, 2014, Nick Bagakis (Bagakis), a traffic signal technician
trainee employed in the Maintenance Division of the City’s Public Works Department, sent a
letter to Roberts in which Bagakis and 31 other Maintenance Division employees advised
Roberts of their opposition to being removed from the bargaining unit represented by ALE, as
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indicated in the Draft Decision attached to Roberts’ e-mail message and distributed to employees
two days earlier. After explaining their concerns, Bagakis’ letter stated that he and the other 31
signatories were under the impression “that ALE intends to meet with you to present its
objections to your proposed unit modification.” Significantly, at this point in time, the City had
not yet made any final determination on the unit modification petition and, even assuming, as the
City now asserts, that it had begun processing the petition on the mistaken belief that it was
supported or sponsored in some manner by ALE, nothing prevented it from rejecting the petition
as deficient after being clearly advised of the objections of ALE to the petition. Nevertheless,
the City continued processing the petition, without objection as to Drewes and Anderson’s lack
of standing to request a unit modification under the City’s EERR.
On January 29, 2014, Roberts received further evidence from Drewes and Anderson that
they were not acting at the behest or with the support of ALE, but that they were representatives
of a rival employee organization. On that date, Drewes and Anderson sent a letter to Roberts
protesting the lack of clear criteria and analysis in Roberts’ January 7, 2014 memo and Draft
Decision and advising Roberts that they would “use appropriate legal means for testing the
propriety of the proposed unit” identified in Roberts’ Draft Decision, as opposed to the unit
proposed by Drewes and Anderson. (Joint Exhibit P.) Under their signatures, Drewes and
Anderson each identified themselves as a “Representative” of the “Airport/Water Resources
Employee Organization.” 	(Ibid.)
The City’s assertion of a good-faith mistaken belief that ALE supported the unit
modification petition is further undermined by the testimony of its own witness at the hearing in
this matter. Audrey Daniels (Daniels), a human resources consultant on retainer with the City,
testified that Roberts contacted him shortly after the petition was filed and, at that time,
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Daniels advised Roberts that the unit modification petition “looked to me like a decertification
petition by members of ALE.” (Reporter’s Transcript (R.T.), p. 131, lines 11-12, 26.)
According to his testimony, Daniels was the primary author of the Draft Decision attached to
Roberts’ January 7, 2014 e-mail message, and his handwritten notes on the EERR were
admitted into evidence as his contemporaneous thoughts on how he advised the City to handle
what Daniels deemed to be the “decertification petition” filed by Drewes and Anderson. (R.T.,
p. 135, lines 16-17, 24-26; Exhibit F2; Exhibit S.)
In sum, the City presented no testimony or any other evidence explaining how or why
Roberts or any other City official would believe that ALE would support a “decertification
petition” aimed at removing 50 employees in 28 job classifications from its bargaining unit. In
fact, the only evidence in the record that, even arguably, might support the City’s contention that
it processed the Drewes/Anderson petition on a mistaken belief that they were somehow acting
with the support or authority of ALE was testimony that Drewes or perhaps other signatories of
the unit modification petition had, at one time, been members of ALE’s governing board. (R.T.,
p. 12, lines 23-24.) However, the City offered no testimony to suggest that Drewes or any other
signatory of the unit modification petition had ever been, or, more importantly, were at the time
the petition was filed authorized to speak for ALE, or that Roberts or any other City official
honestly believed that to be the case. Accordingly, we reject this exception.
Additionally, we reject the unstated assumption apparently underlying this exception,
which is that lack of standing in unfair practice proceedings may be waived or otherwise affected
by the respondent’s failure to assert that defect or, in this case, by the City’s asserted mistake and
failure to raise the objection sooner when Drewes and other employees first presented the
petition. Like the other PERB-administered statutes, the MMBA, as implemented through
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PERB’s Regulations, confers standing upon a person and/or entity to allege a particular unfair
practice, depending upon the rights conferred by the statute and whether the charging party fits
the statutory definition of a “public agency” (employer), “public employee,” “employee
organization,” or “recognized employee organization.” (MMBA, § 3501, subds. (a)-(d); PERB
Regs. 32603, 32604; Los Angeles Community College District (1994) PERB Decision
No. 1060, p. 2.) As in civil procedure, lack of standing to bring a particular unfair practice
allegation is a “jurisdictional” defect, meaning that it cannot be waived or otherwise affected by
the respondent’s failure to assert it. (A.Standing to Sue—“Real Party in Interest” Requirement,
Cal. Prac. Guide Civ. Pro. Before Trial Ch. 2-A.) Because proper standing to bring an action
goes to the very existence of a cause of action and the right to relief, it may be raised at any point
in unfair practice proceedings, including for the first time on appeal. (Los Angeles CCD, supra,
PERB Decision No. 1060, p. 7; see also Code Civ. Proc., § 430.80; Killian v. Millard (1991) 228
Cal.App.3d 1601, 1605; Sacramento County Fire Protection Dist. v. Sacramento County
Assessment Appeals Bd. II (1999) 75 Cal.App.4th 327, 331.)
Thus, whether the City mistakenly processed the unit modification petition filed by
Drewes and other City employees has no bearing on the City’s right to assert lack of standing
now before the Board, though, neither does it mean that the assertion is necessarily meritorious.
As explained below, Drewes’ lack of standing, as an employee, to file a unit modification
petition under the City’s local rules has no bearing on whether he may bring an unfair practice
charge alleging other violations of the City’s local rules or the MMBA.
B. 	Whether the ALJ Ignored Evidence that the City Appropriately Applied Community of
Interest Criteria When Considering the Unit Modification Petition
The City’s second exception similarly argues that the ALJ relied exclusively on Roberts’
decision denying the proposed unit modification petition to find that the City did not correctly
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apply a community of interest standard, but instead applied a “lack of community interest”
standard. In support of this exception, the City argues that the ALJ ignored testimony from
Alessio tending to show that the City appropriately considered and applied the community of
interest criteria contained in the City’s EERR, even if such consideration was not explicitly
reflected in Roberts’ decision itself. Like the City’s mistaken belief discussed above, we
likewise reject this exception as unsupported by the record.
Alessio testified that he assisted in drafting the January 7, 2014 Draft Decision whose
purpose, according to Alessio, was to “engage the employees who would be affected in a
dialogue and to gain a deeper understanding, so we could make a decision that was best for
everyone.” (R.T., p. 92, lines 4-6, p. 101, lines 19-27.) Alessio also reviewed and edited
Roberts’ final determination to ensure that the classifications were correctly identified by their
current titles and “made sure there were no typos, that sort of thing.” (R.T., p. 110, line 27,—
p. 111, line 2.) Alessio also testified that he, along with Human Resources Technician Kaylin
Larson, had selected the criteria used in preparing an eight-column spreadsheet that had been
distributed at an early February 2014 meeting, and which was attached to Roberts’ final decision.
The spreadsheet forms the basis of the City’s contention that it properly applied the community
of interest criteria, even if Roberts’ final determination failed to include findings or explain how
these various criteria were applied. The ALJ rejected this argument, reasoning that the City’s
undisclosed thought process, which was only revealed later in the context of PERB unfair
practice proceedings, could not justify its otherwise conclusory assertion that the proposed unit
lacked a sufficient community of interest.
Alessio acknowledged that he had no special expertise or even familiarity with the
community of interest criteria included in the City’s EERR. After Roberts showed him the petition,
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Alessio contacted Daniels, the City’s human resources consultant, to explain “what it meant,
basically,” and how the City should proceed with it, because, by Alessio’s admission, his
background is in finance, and human resources. (R.T., p. 89, lines 7-15.) Alessio acknowledged
that other criteria traditionally used by PERB in making unit determinations, such as common
funding, common supervision or similarity in existing benefits, were not considered when making
the City’s determination. (R.T., p. 124, lines 8-16, p. 117, lines 15-28, p. 118, lines 18-27, p. 119,
lines 12-16, p. 121, line 27,—p. 122, line 3.) Alessio also acknowledged that, while the criteria
listed in the EERR were to be considered, “that maybe there’s other things that aren’t listed here
that we might consider, too.” (R.T., p. 115, lines 12-14, 18-19.)
Although the City excepts to the ALJ’s apparent reliance on Roberts’ final determination
rather than subsequent testimony offered by other City officials about how the unit modification
petition was processed, notably, it does not except to the ALJ’s finding that the City offered no
adequate contemporaneous explanation for its decision, nor to that portion of the proposed order
remanding this case to the City to “[c]onduct an investigation and/or make written findings
upon an investigation of the unit modification petition filed by Blaine Drewes et al., on
November 19, 201[4].” To the contrary, the City attempts to use its exceptions to the proposed
decision to supplement its prior decision and provide the additional information requested by
the ALJ. However, PERB’s Regulation governing exceptions to a proposed decision expressly
state that “[r]eference shall be made in the statement of exceptions only to matters contained in
the record of the case.” (PERB Reg. 32300, subd. (b).)
As explained in the proposed decision, the City’s determination concerning the unit
modification petition was deficient on its face and the City cannot be allowed to cure these
defects with post hoc rationalizations, either through the testimony of its witnesses in PERB’s
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unfair practice proceedings or through supplementing the record in its filings before the Board.
Accordingly, we reject this exception as well.
C. 	Drewes’ Standing to Bring the Present Unfair Practice Case
A central contention of the City before the ALJ, and one reiterated in its exceptions
before the Board, is that because Drewes, in his capacity as an employee, cannot petition for a
unit modification under the City’s local rules, he likewise lacks standing to bring an unfair
practice charge challenging the reasonableness of the City’s local rules and/or their application
when processing the unit modification petition filed by Drewes and other Airport and Water
Resources Division employees. The City asserts several arguments in support of this exception.
It argues that granting an individual employee standing to file an unfair practice charge
challenging the reasonableness of a local rule regarding unit determinations is contrary to PERB
precedent, which prohibits parties from using unfair practice proceedings to circumvent the unit
modification process. The City also argues that it processed the unit modification petition under
a mistaken belief that it was filed on behalf of ALE, a contention which we have considered and
rejected above. Additionally, the City argues that Drewes’ lack of standing was squarely
addressed and decided in a separate decision by the Board, and thus, that the law of the case
doctrine bars any finding of liability for the City’s allegedly unreasonable application or
enforcement of its local rules while processing a unit modification petition which Drewes had no
right to file in the first place.
Notably, the City has not specifically excepted to the ALJ’s conclusion that the City’s
local rule requiring 60 percent support by affected employees for a proposed unit modification
interferes with employees’ protected right to freely choose a representative. Nor has the City
excepted to the ALJ’s reasoning or legal conclusion that, in making unit determinations, it
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must make findings and explain its analytical process in sufficient detail “to enable the parties
to determine whether and on what basis they should seek review and, in the event of review, to
apprise a reviewing court of the basis for the [City’s] action.” (Proposed decision at p. 48,
citing Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506,
514.) Because exceptions not specifically urged are waived (PERB Reg. 32300, subd. (c)), the
City’s defense in this case thus turns solely on its exception that the case must be dismissed
because Drewes is not a proper charging party.
1. 	Employee Standing to Challenge Local Rules and their Application
We first consider the City’s argument that, because the unfair practice complaint
challenges the reasonableness of the City’s local rules governing unit modifications, and/or
their allegedly unreasonable application, Drewes’ standing as a proper charging party depends
on whether the City’s local rules authorize employees to file a unit modification petition.
By its express language, section 8.A of the City’s local rules permit only employee
organizations to file and have considered petitions for unit modification. The City correctly
recites PERB precedent that employees may not use unfair practice proceedings to circumvent a
unit modification determination (County of Santa Barbara (2011) PERB Decision No. 2181-M,
p. 2; State of California (Department of Forestry & Fire Protection) (2011) PERB Decision
No. 2162-S, p. 10; Berkeley Unified School District (2005) PERB Decision No. 1744, p. 5), and
thus, to the extent Drewes seeks an order for the City to process a unit modification petition
which Drewes, in his capacity as an employee, had no right to have considered, PERB is
without authority to grant such relief and must dismiss the allegation for lack of jurisdiction.
(City of Inglewood (2015) PERB Decision No. 2424-M, pp. 7-9, 16.)
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However, standing is not dispensed “in gross.” Rather, it is evaluated separately for each
claim and each form of relief sought. (Davis v. Federal Election Com'n (2008) 554 U.S. 724,
733–734.) An employee alleging several unfair practices within the same charge may, for
example, have standing to allege that a public employer unlawfully discriminated in terms and
conditions of employment, but not standing to allege that the employer unilaterally changed
terms or conditions of employment or otherwise failed or refused to meet and confer over
negotiable matters. (Oxnard Union High School District (2012) PERB Decision No. 2265,
adopting dismissal letter at pp. 3-4; Regents of the University of California (2010) PERB
Decision No. 2153-H, adopting warning letter at p. 7; State of California (Department of
Corrections) (1999) PERB Decision No. 1329-S, adopting warning letter at p. 4.)
Although the amended charge does not request a specific remedy, at the hearing Counsel
for Drewes, Stewart Weinberg (Weinberg), explained that Drewes “wishes to have the contract
between the A-L-E and the City of Livermore declared not to be a contract bar [sic] to the
petition filed by [Drewes], and therefore, an order requiring the City of Livermore to proceed on
the [unit modification] petition filed by [Drewes].” (R.T., p. 8, lines 18-23.) Because there is no
right under the City’s local rules or the MMBA to have the City process a unit modification
petition filed by employees or anyone other than an employee organization within the meaning
of the MMBA,5 Drewes has no standing to seek his requested remedy, regardless of whether the
City maintained or applied unreasonable local rules while processing the unit modification
petition filed by Drewes and Anderson.
5 The definition of “employee organization,” found in the City’s local rules differs
somewhat from the definition found in MMBA section 3501, subdivision (a). Although those
differences appear to be immaterial to the issues in this case, we nonetheless rely on the
statutory definition for the purpose of this decision.
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However, Drewes’ lack of standing to file a unit modification petition under the City’s
local rules does not entirely dispose of the issue. As noted in the proposed decision, the
Legislature has expressly authorized employees, in their capacity as employees, to bring unfair
practice charges alleging either that a public agency has acted in violation of its local rules and/or
that it has enforced its local rules in a manner that is inconsistent with the provisions, policies or
purposes of the MMBA. (§§ 3507, subd. (d), 3509, subd. (b).) 	Regardless of whether the City
was required or permitted by its local rules to do so, there is no dispute that it processed the unit
modification petition filed by Drewes and other Airport and Water Resources Division
employees. (R.T., p. 122, line 16.)6 The ALJ reasoned that, having chosen to process the
petition, the City must do so in a manner consistent with the provisions, policies and purposes of
the MMBA. We agree with the ALJ’s reasoning and conclusion.
Because the protected rights allegedly abridged by the City’s enforcement of its local rule
are different from any rights Drewes may (or may not) have had to petition the City for a unit
modification, the ALJ correctly determined that Drewes has standing to file an unfair practice
charge alleging that the City’s local rules, either facially or as applied, violate employee rights
guaranteed by the MMBA.
6 While PERB Regulations and decisional law recognize no right of employees, as
employees, to contest placement of their position or job classification in a particular bargaining
unit (County of Riverside (2012) PERB Decision No. 2280-M, p. 9), nor to vindicate the
collective bargaining rights of employee organizations (Orange Unified School District (2004)
PERB Decision No. 1670, p. 2), the controlling body of law here is the City’s EERR rather than
PERB’s Regulations and the MMBA allows for a considerable degree of local regulation.
(County of Imperial (2007) PERB Decision No. 1916-M, p. 16.) Accordingly, while we agree
with the ALJ that the City’s 60 percent support requirement for approving a proposed unit
modification is inconsistent with employee rights guaranteed by section 3502, in the absence
of briefing on the subject, we decline to rule on the broader question raised in the proposed
decision of whether the MMBA permits a public agency through its local rules to wholly or
partially delegate to employees the authority to make or veto unit determination decisions.
(PD at pp. 51-52, citing Reinbold v. City of Santa Monica (1976) 63 Cal.App.3d 433, 440; see
also Peralta Community College District (1987) PERB Order No. Ad-164, pp. 6-7.)
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The City is correct that, notwithstanding its broad remedial powers, the Board may not
order as a remedy for an unfair practice charge something that Drewes would not have been
entitled to in the first place. This observation ignores that the ALJ appropriately did not order
the City to process the unit modification petition filed by Drewes. Rather, the proposed remedy
orders the City, in relevant part, to “[c]onduct an investigation and/or make written findings
upon an investigation of the unit modification petition filed by Blaine Drewes et al., on
November 19, 2013. To fully dispose of the unit modification petition, the City may also need
to investigate and determine whether Drewes, Anderson and the other signatories were an
“employee organization” with proper standing to bring a unit modification petition, but neither
the ALJ nor the Board presumes the outcome of such investigation.
However, while PERB is without authority to order the City to process a unit
modification petition which Drewes, as an employee, had no right to have processed, once the
City chose to process the petition, PERB may properly find liability and order that the City do
so in a manner consistent with the provisions, policies and purposes of the MMBA, including
the rights of public employees “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.” (MMBA, § 3502; International Brotherhood of Electrical
Workers v. City of Gridley (1983) 34 Cal.3d 191, 198 [only the Legislature, and not a public
agency acting through its local rules, can abridge rights guaranteed by the MMBA].)
2. 	Whether the Law of the Case Prevents Drewes From Bringing this Case
Finally, the City argues that Drewes’ lack of standing was previously decided by the
Board in City of Livermore (2015) PERB Decision No. 2435-M, in which the Board adopted the
partial dismissal of Drewes’ allegation that the City had enforced section 8 of its EERR in an
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unreasonable manner by permitting only employee organizations to file petitions to modify an
existing bargaining unit. Again, we disagree.
City of Livermore, supra, PERB Decision No. 2435-M affirmed the dismissal of Drewes’
allegation that the City had maintained and/or enforced an unreasonable local rule by rejecting
the unit modification petitions filed by employees, in their capacity as employees, rather than as
authorized representatives of an employee organization. However, the petition was rejected, in
part, because it lacked 60 percent support of affected employees. There is no dispute that the
City processed the petition, regardless of whether it was required or permitted by its own local
rules to do so. (R.T., p. 122, line 16.) Because there was no instance within six months of the
filing of Drewes’ charge in which the City had refused to process a unit modification petition
filed by an employee or group of employees, rather than an employee organization, the Office of
the General Counsel determined that this allegation was untimely and the Board affirmed the
dismissal on that basis. (See, e.g., County of Orange (2006) PERB Decision No. 1868, pp. 4-5;
County of Riverside (2011) PERB Decision No. 2176-M, pp. 6-10.)
The standing issue itself was mentioned by the Board as an alternative justification and
was arguably dicta, but, more importantly, only the narrow question of whether Drewes, as an
employee, has standing under the City’s rules or PERB Regulations to vindicate organizational
rights was discussed. Because the charge included no verified allegation that Drewes was acting
as a representative of an employee organization, the Board assumed, without deciding, that
Drewes was acting in his capacity as an employee and not as a representative of an employee
organization. Thus, its discussion of the standing issue was limited to whether Drewes, in his
capacity as an employee, had standing to petition for a unit modification. In the absence of any
findings and determination by the City on whether the unit modification petition was filed by an
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employee organization within the meaning of MMBA section 3501, it is unnecessary for the
Board to reach the issue now, since PERB’s role with respect to local rules is to “enforce and
apply rules adopted by a public agency concerning unit determinations, representation,
recognition, and elections,” rather than to apply PERB’s own Regulations or to substitute our
judgment for that of the public agency. (MMBA, § 3509, subd (c); Organization of Deputy
Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331, 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.)7
CONCLUSION
For the foregoing reasons and those set forth in the proposed decision, the Board
concludes that the 60 percent support requirement found in section 8 of the City’s EERR is
inconsistent with the provisions, policies and purposes of the MMBA, including but not limited
to section 3502’s guarantee of employee rights “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” and the statutory policy that employees be grouped in
bargaining units that afford effective representation by the organization of their choosing.
Accordingly, we declare as void and unenforceable the phrase “by submitting to the City
manager a petition accompanied by proof of employee approval of the proposed modification
7 In several instances, the City’s exceptions erroneously rely on the language of PERB’s
Regulations governing representation proceedings and on PERB decisional law interpreting
those Regulations. However, in the MMBA context, a public agency’s local rules govern such
matters as representation proceedings and PERB’s Regulations become applicable, if at all,
only as “gap fillers,” when the public agency has not adopted a reasonable local rule on the
subject. (MMBA, § 3509, subd. (b); County of Orange (2010) PERB Decision No. 2138-M,
p. 8.) Because there is no dispute that the City has local rules governing unit determination
and representation matters, the City’s reliance on PERB’s Regulations is therefore misplaced.
17

________________________
signed by not less than 60 % of those employees who, if the proposed modification should be
granted, would be moved from one representation unit to another” and direct the City to cease
and desist enforcing this language when considering unit modification petitions.
The Board also concludes that the City unreasonably enforced section 7 of its EERR, in
violation of MMBA section 3507 and PERB Regulation 32603, subdivision (f), by failing to
provide a written explanation of its findings regarding the unit modification petition filed on
November 19, 2013, and that the matter is appropriately remanded to the City for further
consideration in accordance with the provisions of the City’s EERR, with the exception of its
60 percent majority support requirement, and to make and issue written findings regarding the
evidence it considered to reach its February 5, 2014 determination to deny the petition. To the
extent the City now asserts that it is not required to process a unit modification petition filed by
employees, it must make and issue written findings regarding the evidence relied on to
determine that Drewes and Anderson were not acting as representatives of an employee
organization within the meaning of the MMBA.8
ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire record in
the case, it is found that the City of Livermore (City) violated the Meyers-Milias-Brown Act
(MMBA), Government Code section 3507, subdivision (a), by making a unit determination
under the provisions of its Employer-Employee Relations Resolution (EERR) section 7
without providing an adequate, written explanation of its findings and the evidence upon which
such findings are based; and by maintaining and enforcing language of its EERR section 8,
which requires proof of 60 percent support among employees to be affected in a proposed unit
8 See footnote 5 above.
18

modification. By this conduct, the City interfered with the right of employees to be represented by
an employee organization of their own choosing, in violation of Government Code section 3506 and
PERB Regulation 32603, subdivision (a). (PERB Regulations are codified at Cal. Code Regs.,
tit. 8, § 31001 et seq.)
Pursuant to section 3509, subdivision (b), of the Government Code, it hereby is
ORDERED that the following language found in section 8, subdivision A, of the City’s EERR
is void and unenforceable: “accompanied by proof of employee approval … signed by not less
than 60% of those employees who, if the proposed modification should be granted, would be
moved from one representation unit to another.”
It is further ORDERED that he City, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Making unit modification determinations (whether granting or denying a
petition for such), pursuant to its EERR section 7, without providing written notice of its
findings and the evidence upon which such findings are made.
2. 	Maintaining and/or enforcing that portion of its EERR section 8, which
requires a proof of 60 percent support among affected employees for approval of a unit
modification petition.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Conduct an investigation and/or make written findings upon an
investigation of the unit modification petition filed by Blaine Drewes et al., on November 19,
2013, including, if applicable, whether the petition was appropriately filed by an employee
organization within the meaning of MMBA section 3501, subdivision (a).
19

2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees customarily are posted, copies of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
the City indicating that it will comply with the terms of this Order. Such posting shall be
maintained for a period of thirty (30) consecutive workdays. In addition to physical posting of
paper notices, the Notice shall be posted by electronic message, intranet, internet site, and
other electronic means customarily used by the City to communicate with employees.
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 the Public Employment Relations Board (PERB), or the
General Counsel’s designee. Respondent 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 BLAINE DREWES or his authorized representative.
Chair Gregersen and Member Winslow joined in this Decision.
20

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. SF-CE-1177-M, Blaine Drewes v. City of
Livermore, in which all parties had the right to participate, it has been found that the City of
Livermore (City) violated the Meyers-Milias-Brown Act (MMBA), Government Code section 3507,
subdivision (a), by making a unit determination under the provisions of its Employer-Employee
Relations Resolution (EERR) section 7 without providing an adequate, written explanation of its
findings and the evidence upon which such findings are based; and by maintaining and enforcing
language of its EERR section 8, which requires proof of 60 percent support among employees to be
affected in a proposed unit modification. By this conduct, the City interfered with the right of
employees to be represented by an employee organization of their own choosing, in violation of
Government Code section 3506 and PERB Regulation 32603, subdivision (a). (PERB Regulations
are codified at Cal. Code Regs., tit. 8, § 31001 et seq.)
Pursuant to section 3509, subdivision (b), of the Government Code, it hereby is ORDERED
that the following language found in section 8, subdivision A, of the City’s EERR is void and
unenforceable: “accompanied by proof of employee approval … signed by not less than 60% of
those employees who, if the proposed modification should be granted, would be moved from one
representation unit to another.”
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Making unit modification determinations (whether granting or denying a
petition for such), pursuant to its EERR section 7, without providing written notice of its findings
and the evidence upon which such findings are made.
2. 	Maintaining and/or enforcing that portion of its EERR section 8, which requires
a proof of 60 percent support among affected employees for approval of a unit modification petition.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Conduct an investigation and/or make written findings upon an investigation of the unit
modification petition filed by Blaine Drewes et al., on November 19, 2013, including, if applicable,
whether the petition was appropriately filed by an employee organization within the meaning of
MMBA section 3501, subdivision (a).
Dated: _____________________ 	CITY OF LIVERMORE
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER MATERIAL.

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
BLAINE DREWES,
Charging Party,
v.
CITY OF LIVERMORE,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-1177-M
PROPOSED DECISION
(September 12, 2016)
Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Blaine
Drewes; E. Kevin Young, Assistant City Attorney for City of Livermore.
Before Alicia Clement, Administrative Law Judge.
PROCEDURAL HISTORY
Blaine Drewes (Drewes or Charging Party) filed the above-referenced unfair practice
charge on February 25, 2014, alleging that the City of Livermore (City or Respondent) violated
the Meyers-Milias-Brown Act (MMBA or Act)1 when it processed a unit modification petition
filed on January 7, 2014, in a manner that is inconsistent with its Employer-Employee
Relations Resolution (EERR), section 8, Modification of Representation Units. The City
responded to the charge on March 27, 2014, arguing that it properly applied the City’s EERR,
section 8, and that the unfair practice charge process was not the proper procedure to challenge
a unit modification determination. Charging Party filed a First Amended Charge (FAC) on
November 19, 2014, clarifying the nature of the charge: the City’s EERR, section 8 was
alleged to be an unreasonable rule/regulation; while the City’s application of section 7 was
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board’s Regulations may be found on the Internet at www.perb.ca.gov.

alleged to be unreasonable. No new facts were alleged in the FAC. The City’s December 9,
2014 response to the FAC, asserts that the unfair practice charge process should not be used to
circumvent the unit modification regulations and raises a new objection that Drewes lacks
standing to file a petition for unit modification under the EERR and PERB regulations.
On January 22, 2015, PERB’s Office of the General Counsel (OGC) found that the City
neither adopted section 8 nor applied it to reject Charging Party’s petition within six months of
the original charge, and so dismissed that allegation as untimely. Also on January 22, 2015,
the OGC issued a Complaint against the City for 1) its unreasonable application of its EERR
section 7 when it a) created a new bargaining unit by removing a number of classifications
from within the Airport and Water Resources Divisions in the Association of Livermore
Employees (ALE) -represented bargaining unit, and b) simultaneously added to the ALE-
represented bargaining unit a number of different classifications from the Airport Division and
Water Resources Division; and 2) its application of EERR section 8 to require proof of support
of at least 60% of the affected employees. The City’s February 11, 2015 Answer to the
Complaint admitted to the factual allegations in the Complaint but denied any violation of the
Act by its conduct.
An informal settlement conference was held on April 10, 2015, but the matter was not
settled. A formal hearing was scheduled for July 28, 2015. Meanwhile, Charging Party
appealed the partial dismissal. On June 10, 2015, the City filed a Motion to Dismiss the
Complaint, arguing that Drewes lacked standing to file a unit modification petition as well as
that the unfair practice charge process was not the proper means to challenge a unit
modification decision.
2

On June 22, 2015, the Board issued City of Livermore (2015) PERB Decision No.
2435-M. The June 10, 2015 Motion to Dismiss was denied on June 26, 2015.
A formal hearing was held on September 9, 2015. At the formal hearing, the parties
presented a written stipulation to many of the facts in this case. This matter was fully briefed
and submitted for determination on October 22, 2015.
FINDINGS OF FACT
The parties’ Agreed Statement of Facts consists of twenty numbered paragraphs and
supporting documents A through M. The Agreed Statement of Facts states, verbatim:
1. 	The Public Employment Relations Board issued a complaint in action Blain Drewes v
City of Livermore, Case SF-CE-1177-M, based upon the First Amended Charge filed
by Blaine Drewes.
2. 	The Charging Party, Blaine Drewes (“Drewes”) is an employee of the City of
Livermore.
3. 	The City of Livermore (“City”) is the Respondent in PERB Case SF-CE-1177-M.
4. 	The Respondent City and the Association of Livermore Employees (“ALE”) are parties
to a master Memorandum of Understanding covering wages, hours and working
conditions of employees of the City of Livermore. ALE is exclusive representative of
Drewes and all other employees who are the subject of the charge. (Attached hereto as
Exhibit B is a true and correct copy of the Memorandum of Understanding)
5. 	Through a resolution passed on January 17, 1977, the City adopted Resolution No. 9-
77, whereby creating the City’s Employer-Employee Relations Resolution (hereinafter
“EERR”). Attached hereto as Exhibit D is a true and correct copy of Resolution No. 9-
77)
6. 	A section of the EERR, pertinent to this Action, reads as follows:
Section 7 – Establishment of Representation Units
….
B. The following factors, among others, are to be
considered in making such determination.
1) Which unit will assure employees the fullest freedom
in the exercise of rights set forth under this Resolution.
2) The history of employer-employee relations in the unit,
among other employees of the City, and in similar public
3

employment; provided, however, that no unit shall be
established solely on the basis of the extent to which
employees in the proposed unit have organized.
3) The effect of the unit on the efficient operation of the
City and sound employer-employee relations.
4) The extent to which employees have common skills,
working conditions, and job duties.
5) Management and confidential employees shall not be
included in a representation unit with non-management
and non-confidential employees.
6) No classification and no employee shall be included in
more than one representation unit.
(Exhibit D, p. 5)
7. 	Another section of the EERR, pertinent to this Action, reads as follows:
Section 8 – Modification of Representation Units
“An employee organization may request a modification of an established representation
unit by submitting to the City Manager a petition accompanied by proof of employee
approval of the proposed modification unit signed by not less than 60% of those
employees who, if a proposed modification should be granted, would be moved from
one representation unit to another.
(Exhibit D, p. 6)
8. 	ALE is not a party, nor associated with the unfair practice charges filed by Drewes.
(Attached hereto as Exhibit I is a true and correct copy of the declaration of ALE
president, Michael Pato)
9. 	On November 19, 2013, Drewes and Shelby Anderson (“Anderson”), employees of the
City of Livermore in its Water Resources/Public Works Department, submitted a
“request for modification of an established representation unit.” Their request sought to
separate a group of employees to be formed into a new bargaining unit from their unit
of representation, ALE. This petition for unit modification was marked received by
Mark Roberts (“Roberts”), City Manager of Respondent City of Livermore on
November 21, 2013. With the understanding that ALE supported the petition the City
processed Drewes’ request. (Attached hereto as Exhibit E is a true and correct copy of
Drewes/Anderson’s request for modification)
10. On January 7, 2014, City Manager Mark Roberts (“Roberts”) provided an initial
response to Drewes’ petition for unit modification in an interoffice memorandum in
which he stated that there may be a sufficient lack of community of interest in the
petition for unit modification for the majority of classifications presented in the
petition, as also “found” that “specific classifications within the petition do not
sufficiently lack a community of interest with comparable classifications represented by
the Association of Livermore Employees.” (Attached hereto as Exhibit F is a true and
correct copy of Roberts’ January 7, 2014 memorandum) In said memorandum, Roberts
further stated that “it is in the interest of the City to have its bargaining units formed as
4

similarly as possible. As a result it is my decision that other maintenance related
classifications contained in the original Public Works Unit form [sic] in 1977 (then
represented by Operating Engineers, Local 3) is a more appropriately formed unit for
purposed of Unit Modification. Additionally, the maintenance oriented classifications
not included in the unit in 1977 are appropriately assigned to the requested modified
Unit.” (Exhibit F, page 2, ¶¶1-3)
11. On February 3, 2014, a meeting occurred between ALE and the City in which a number
of events occurred: the City provided documents to ALE regarding the City’s decision
as to which classifications the city believed would be a best fit for the new unit; ALE
expressed their desire to continue to represent all of their current members; and most
importantly, the parties discussed the newly proposed unit would consist of 73
members, and 32 of those members were not in favor of the modification. Hence, since
the 41 members who were in favor of the unit modification was 56 percent of the
eligible voters and the City’s EERR required 60% to grant the unit modification. The
petition would be denied.
12. On February 5, 2014, Roberts applied and enforced Local Rule EERR, Section 8
requiring a petition for unit modification to be supported by proof of support of no less
than 60% of the affected employees. Roberts held that “[I]n accordance with Section
8A of the EERR, 60 percent of the affected employees would need to sign a petition
affecting the proposed unit modification.” Roberts further held that, “[U]sing the 60
percent presentation rule contained in Section 8 of the EERR “Modification of
Representation Units” as a guide, I now find that there is insufficient support among the
classes of employees which would be included in the new bargaining unit.” (Attached
hereto as Exhibit G is a true and correct copy of Roberts’ February 5, 2014
memorandum)
13. On February 24, 2014, Drewes filed an unfair practice charge with the Board, alleging
that the City violated section the MMBA by failing to explain how and why it applied
its local rules within EERR No. 9-77 when determining the composition of a bargaining
unit. Drewes also alleged the City’s action constituted a violation of Section 8 of the
EERR.
(Attached hereto as Exhibit J is a true and correct copy of Drewes’ February 24, 2014
charge)
14. On October 29, 2014, the Board ruled the charge as written, “does not state a prima
facie case.” (Attached hereto as Exhibit K is a true and correct copy of the Board’s
October 29, 2014 letter) The letter also provided Drewes with direction on how to
amend his charges, if he so desired. (Id.)
15. On November 19, 2014, Charging Party filed a First Amended Unfair Practice Charge
in Action No. SF-CE-1177-M. (Attached hereto as Exhibit H is a true and correct copy
of the First Amended Unfair Practice Charge)
5

16. On January 22, 2015, the Public Employment Relations Board issued a partial dismissal
of the First Amended Charge. The Board held the “[F]irst Amended Charge neither
alleges the City adopted Section 8 or applied this rule to reject the Charging Party’s
petition within 6 months before the filing of the original charge, this particular
challenge to the City’s local rule is not timely.” (Attached hereto as Exhibit A is a true
and correct copy of PERB’s January 22, 2015, letter) Thus, a partial dismissal was
ordered for failure to adhere to the statute of limitations for filing a claim.
17. Subsequently on January 22, 2015, the Board issued a complaint against the City in
which it alleged the following violations: (1) that the City violated EERR Resolution
No. 9-77, Section 7, when it determined that classifications from within the City’s
Airport and Water Resources Division that the charging party petitioned to be removed
from ALE belong in a bargaining unit with other maintenance-related classifications
from different divisions. (Complaint page 3) It was also held the City violated Section
7 by determining that Accounting Technician, Division Clerk and Typist Clerk
classifications from the Airport Division and Water Resources Divisions should remain
with ALE, and (2) the City’s application of their local rule of proof of employee
support of 60% or greater to grant a petition for modification is contrary to the Meyers-
Milias Brown Act, and as such violated Government Code Section 3507. (Attached
hereto as Exhibit L is a true and correct copy of the Board’s Complaint)
18. Drewes filed an appeal of the partial dismissal on or about February 9, 2015. (Attached
hereto as Exhibit M is a true and correct copy of the appeal)
19. On June 22, 2015, the Public Employment Relations Board issued a decision affirming
the partial dismissal of the First Amended Charge by applying PERB Regulation 32871
and the City’s Employer-Employee Relations Resolution No. 9-77, permitting only
employee organizations to file a petition to modify an existing bargaining unit (thereby
effectively prohibiting individual employees from filing such petitions). (Attached
hereto as Exhibit C is a true and correct copy of the Board’s June 22, 2015 Decision).
20. Following the partial dismissal, the remaining issues in this case are:
a. 	Is the City’s application and enforcement of its EERR contrary to the Meyers-
Milias Brown Act, because the EERR required a majority of 60% of the
employees encompassed by the petition for unit modification to support the
petition?
b. 	Was the City’s determination of the appropriate unit to be considered for
separation from ALE inconsistent with the criteria enumerated in Section 7 of
the City’s EERR?
c. 	Does Drewes as an individual have standing to file an unfair practice charge
against the City for denying the petition for modification?
6

d. 	Is Drewes’ unfair labor charge an attempt to circumvent the MMBA’s unit
modification procedures?
e. 	Does Drewes, as an individual, have standing to contest placement of the
positions or job classifications in a particular bargaining unit?
The following additional facts were gleaned from the exhibits attached to the parties’
stipulation and the testimony provided at the formal hearing.
The ALE is the current name of the employee organization formerly known as the
Municipal Employees’ Agency for Negotiations (MEAN). The City and ALE are signatories
to a Memorandum of Understanding (MOU) that was valid from April 1, 2012, through March
31, 2014. As such, ALE is the recognized employee organization of a bargaining unit that
consists of clerical, technical, professional, and public service employees in 104 different
classifications.
The November 19, 2013 petition filed by Drewes and Anderson sought “the
modification of an established representation unit by separating from the [ALE], and joining a
new bargaining unit.” Attached to the petition is a list of the classifications targeted by the
petition. The petition does not contain a rationale or justification for the proposed
modification except to state that 92 percent of the employees in those classifications support
the modification and subsequent “transfer to the new representation unit.”
A portion of section 7 of the EERR is quoted in paragraph 6 of the parties’ stipulation,
above. Both the preamble and subdivision A of that section were omitted from the stipulation.
Section 7 states, in its entirety:
Classification of employment with the City for which recognition
of an employee organization might be appropriate will be
assigned to representation units. Whenever a new classification
is adopted by the City, the City Manager after discussion with the
affected employee organization(s) may allocate it to an
7

appropriate representation unit or not allocate it to any
representation unit.
A. An appropriate unit shall be that unit determined by the City
Manager to be the broadest feasible grouping of positions that
have a community of interest.
B. The following factors, among others, are to be considered in
making such determination:
1. 	Which unit will assure employees the fullest freedom in
the exercise of rights set forth under this Resolution.
2. 	The history of employer-employee relations in the unit,
among others employees of the City, and in similar public
employment; provided, however, that no unit shall be
established solely on the basis of the extent to which
employees in the proposed unit have organized.
3. 	The effect of the unit on the efficient operation of the City
and sound employer-employee relations.
4. 	The extent to which employees have common skills,
working conditions, and job duties.
5. 	Management and confidential employees shall not be
included in a representation unit with non-management
and non-confidential employees.
6. 	No classification and no employee shall be included in
more than one representation unit.
The parties have also included an excerpt of section 8 of the EERR in their stipulation.
Section 8 of the EERR states, in its entirety:
Section 8. Modification of Representation Units.
A. An employee organization may request the modification of an
established representation unit by submitting to the City
Manager a petition accompanied by proof of employee
approval of the proposed modification signed by not less than
60 % of those employees who, if the proposed modification
should be granted, would be moved from one representation
unit to another. A unit modification request may not be
submitted until at least 36 months have elapsed from the most
8

recent date of certification of the unit from which positions
would be removed should the modification request be
granted. No such request shall be processed unless it is filed
no sooner than 150 calendar days and no later than 90
calendar days before the expiration of the then current
memorandum of understanding or agreement between the
City and the employee organization which is then presently
certified as the representative of the unit from which one or
more positions would be removed if the request were granted.
All petitions for modified units shall be accompanied by a list
of all classifications to be included in the modified unit, the
number of employees in each classification, as well as the
divisions and department to which they belong.
B. The City Manager shall give notice of the request for
modification of an established representation unit to the
employees who would be affected by the proposed
modification, to the employee organization which is then
currently certified as the representative of the unit from which
one or more positions will be transferred, and to any
recognized employee organization that has filed a written
request for such notice. Such notice shall be given within 5
days following receipt by the City Manager of the request for
modification, excluding Saturday, Sunday, and holidays.
C. The City Manager shall make the final determination on the
appropriateness of all units after consultation with employee
organizations who request such consultation. In making such
determination, the City Manager shall not be limited to
consideration of the unit or units requested.
D. Should the decision of the City Manager have the result of
moving one or more employees from one representation unit
to another, such employees will continue to work at the rate
of pay, and under the same terms and conditions of
employment which they had in the unit from which they were
transferred until such time as the memorandum of
understanding concerning the unit from which they were
transferred which was in effect at the time of said transfer
shall expire.
E. Notwithstanding any other provisions of the Resolution, the
City Manager may modify any representation unit, when, in
the City Manager’s opinion, the present representation unit is
no longer appropriate.
9

Attached to the EERR as Exhibit A is a document titled, “Employee Organizations.”
Under the heading, Public Works Unit – Operating Engineers, Local #3, the following
classifications are listed: Airport Service Attendant; Equipment Maintenance Attendant;
Gardener I; Gardener II; Senior Gardener; Golf Course Maintenance Mechanic; Greenskeeper
I; Greenskeeper II; Senior Greenskeeper; Laboratory Technician; Maintenance Clerk;
Maintenance Worker I-III; Senior Maintenance Worker; Mechanic I-II; Park & Tree
Maintenance Mechanic; Tree Trimmer; W.R.P. Maintenance Mechanic; W.R.P. Operator I-II;
W.R.P. Senior Operator; and W.R.P. Operator Trainee.
Under the heading Municipal Employees’ Agency for Negotiations, the following
classifications are listed: Account Clerk; Senior Account Clerk; Animal Control Officer;
Assessment and License Clerk; Assistant Planner; Building Inspector; Chief of Party;
Children’s Librarian; Circulation Control Technician; Junior Civil Engineer; Assistant Civil
Engineer; Associate Civil Engineer; Communications Dispatcher Clerk; Departmental
Secretary; Duplicating Machine Operator; Engineering Aide; Counselor; Technician;
Engineering Inspector Technician; Engineering Technician; Senior Engineering Technician;
Junior Planner; Library Clerk; Police Assistant; Police Clerk; Library Processing Technician;
Purchasing Clerk; Reference Librarian; Stenographer Clerk (Bldg. Dept.); Typist Clerk;
Emergency Services Assistant.
On January 7, 2014, City Manager, Marc Roberts, proposed a modification of the ALE-
represented unit that differed from Charging Party’s proposal. In particular, the City sought to
include the following additional classifications: Auto Parts Worker; Facilities Maintenance
Trainee; Facilities Maintenance Worker I-II; Facilities Maintenance Worker, Senior; Facilities
Maintenance Worker, Supervising; Fleet Services Worker; Groundskeeper Trainee;
10

Groundskeeper I-III; Groundskeeper Supervising; Landscape Maintenance Specialist; Lighting
& Landscape Inspector; Maintenance Trainee; Maintenance Worker I-III; Mechanic;
Mechanic, Senior; Traffic Signal Technician Trainee; Traffic Signal Technician; Wastewater
Collections Systems Trainee; Wastewater Collections Systems Worker I; Wastewater
Collections Systems Worker III; Water Distribution Operator Trainee; WR Division Clerk;
WR Senior Clerk; and WR Typist Clerk.
Roberts’ January 7, 2014 memorandum gave the following rationale:
1. I find that there may be sufficient lack of a “community of
interest” as stated in the Petition for unit modification for the
majority of classifications presented in the Petition;
2. I find that specific classifications within the Petition do not
sufficiently lack a “community of interest” with comparable
classifications represented by ALE. These classes are
Accounting Technician, Division Clerk, Senior Clerk, and Typist
Clerk;
3. I also find that it is in the interest of the City to have its
bargaining units formed as similarly interested as possible. As a
result it is my decision that other maintenance related
classifications contained in the original Public Works Unit
formed in 1977 (then represented by Operating Engineers, Local
3) is a more appropriately formed unit for purposes of Unit
Modification. Additionally, other maintenance oriented
classifications not included in the unit in 1977 are appropriately
assigned representation to the requested modified unit.
Roberts cited section 8.C. of the EERR for authority to modify the unit beyond those
modifications requested in the November 21, 2013 petition.
On January 9, 2014, Traffic Signal Technician Trainee (and former ALE Board
Member), Nick Bagakis, wrote to Roberts to protest the bargaining unit proposed by the City
in its January 4, 2014 memorandum. Bagakis’s opposition to the proposed unit is based, at
11

least in part, on the parties’ bargaining history. Bagakis’s January 9, 2014 letter states, in
relevant part:
In 2002, after the employees of the Public Works Department
voted to join the Municipal Employees’ Agency for Negotiations
(MEAN, which is now ALE), a determination was made that
those employees shared a community of interest, as described by
the city’s Employer-Employee Relations Resolution, with the
other positions represented by MEAN and that it was in the best
interests of both the City and the employees to have all job
classifications consolidated in a single bargaining unit. We are
not aware of any changed circumstances since 2002 that merit
your proposed action.
In his missive to Roberts, Bagakis argues that the City should grant the petition filed by
Drewes rather than the unit modification proposed by Roberts on January 7, 2014. Attached to
this letter is a “Petition To Remain with ALE Bargaining Group Representation,” which states,
“By signing below, I object to being moved to the proposed bargaining unit described in City
Manager Marc Roberts’ January 7, 2014 memorandum, and request to remain with my current
bargaining unit represented by the Association of Livermore Employees (ALE).” Below the
declaration are the signatures of 32 employees in the classifications identified by the City in its
January 4, 2014 memorandum.
On February 5, 2014, Roberts issued a “Final Determination Regarding Modification of
ALE Bargaining Unit.” After receiving input from members of the bargaining unit, as well as
additional argument from the original petitioners, ALE, and the maintenance employees who
were not in the petitioning group, Roberts denied the Petition. Roberts gave his rationale as
follows:
1. Which unit will assure employees the fullest freedom in the
exercise of rights set forth under this resolution; (My decision
was considerate of similarly employed classifications relative to
working conditions, type of work performed, work rules,
employment category, etc.)
12

2. The history of employer-employee relations in the unit, among
other employees of the City, and in similar public employment;
provided, however, that no unit shall be established solely on the
basis of the extent to which employees in the proposed unit have
organized; (My decision was also based in part on the fact that at
one point all maintenance related classifications were organized
as a separate unit for the purpose of labor and employment
relations within the City.[)]
3. The effect of the unit on the efficient operation of the City and
sound employer-employee relations; (The operational processes
within the City in addressing the very similar work issues of the
maintenance related employees with one unit is efficient and a
sound practice).
4. To the extent to which employees have common skills,
working conditions, and job duties. (This distinguishes the
maintenance related classes from ALE’s traditional support,
technical and professional classes).
Roberts concluded that if a new unit were to be formed, the optimal unit would include
the additional classifications listed in his January 7, 2014 proposal. Nevertheless, given the
strong opposition from the employees in those additional classifications, Roberts determined
that the unit he proposed on January 7 would not meet the 60 percent support mandated by
section 8.A. of the EERR. Roberts found:
My denial of the petition is based on the fact that the petitioners
for unit modification seek to exclude employee classifications I
have determined to be appropriately assigned to the proposed new
bargaining unit, and once these classifications are included, there
is insufficient support for the new bargaining unit.
Attached to the February 5, 2014 Final Determination is a spreadsheet which lists 24
“Petitioners” classifications as well as 21 “Affected Employees” classifications. For each of
these classifications there are 8 categories, titled as follows: 24 Hr. Work Schedule; 7 days a
week; Standby; Federal/State Required Certifications/Licenses; City Required
Certifications/Licenses; Drivers’ License Class B or A (DOT); Safety Shoe Allowance; and
13

Heavy Equipment Operation. This spreadsheet omits the classifications of Accounting
Technician; Division Clerk; Senior Clerk; and Typist Clerk; all of which were listed in the
November 21, 2013 petition.
Of the eight categories listed for each classification, only “Safety Shoe Allowance” is
checked for all classifications. More than half of the classes were listed in Heavy Equipment
Operation and of those, all were required to have a Class B or A Drivers’ License. The vast
majority of the classifications on the list are required to hold certifications or license by either
the City or State/Federal. Only WR Operators work 24 hours per day, seven days per week,
but at least one third of the classifications are checked in the “standby” column.
ISSUES
1. Does Charging Party have standing?
2. Was the City’s application of section 7 of its EERR Unreasonable?
3. Is the City’s threshold requirement of a 60% showing of interest in a unit modification
petition, as required by EERR section 8.A, reasonable?
CONCLUSIONS OF LAW
I. Jurisdiction
The City is a public agency, as defined by MMBA section 3501, subdivision (c).
Drewes is a Water Resources Source Control Inspector for the City and an employee as
defined by MMBA section 3501, subdivision (d). Drewes is in a unit of clerical, technical,
professional and public service employees, which is exclusively represented by ALE. Drewes
alleges, among other things, that the City has adopted and/or enforced an unreasonable local
rule. The right of employees to challenge a local rule as unreasonable is codified in MMBA
section 3507, subdivision (d), which states:
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Employees and employee organizations shall be able to challenge
a rule or regulation of a public agency as a violation of this
chapter. This subdivision shall not be construed to restrict or
expand the board’s jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive, of Section 3509.
MMBA section 3509, subdivision (b), provides that PERB has the initial, exclusive
jurisdiction to determine whether a complaint alleging a violation of section 3507 is
meritorious. Accordingly, PERB has jurisdiction over the parties as well as the claim(s) that
the City has adopted or enforced an unreasonable local rule or rules.
II. Standing
The issue of “standing,” (jurisdiction over the parties), is separate and distinguishable
from the issue of whether the elements of a prima facie case exist. (Los Angeles Community
College District (1994) PERB Decision No. 1060.)
The concept of justiciability involves the intertwined criteria of
ripeness and standing. Standing derives from the principle that
every action must be prosecuted in the name of the real party in
interest…. A party lacks standing if it does not have an actual
and substantial interest in, or would not be benefited or harmed
by, the ultimate outcome of an action. Standing is a function not
just of a party’s stake in a case, but the degree of vigor or
intensity with which the party presents its arguments.
(City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59, internal quotations and
citations omitted.)
PERB is required to dismiss a charge for lack of jurisdiction if a party (a) has no
standing to file the charge, or (b) fails to make a prima facie case for the charge filed.
(Los Angeles Community College District, supra, PERB Decision No. 1060.) Standing should
be inquired into by the Board agent investigating an unfair practice charge prior to any inquiry
into the merits of the case. (Ibid; see also Municipal Court v. Superior Court (Gonzalez)
(1993) 5 Cal.4th 1126, 1132.) An employee has no standing to challenge a violation of another
15

employee’s rights, but must be a member of the class of employees which s/he claims has been
harmed. (United Teachers of Los Angeles (Hopper) (2001) PERB Decision No. 1441.)
Standing is determined at the time of the commission of the alleged violation and at the time
the charge is filed. (State of California (Department of Transportation) (1983) PERB Decision
No. 304-S.)
The City is correct that PERB has previously held that individuals do not have standing
to file unit modification petitions under PERB’s Regulations. (State Employees Trades
Council-United (Chemello) (2006) PERB Decision No. 1867-H; Riverside Unified School
District (Petrich) (1985) PERB Order No. Ad-148a.) Likewise, when an individual employee
sought a writ of mandate to compel his employer to include him in a particular bargaining unit
with which he allegedly shared a community of interest, the court refused. (Reinbold v. City of
Santa Monica (1976) 63 Cal.App.3d 433.)
In the related case, City of Livermore, supra, PERB Decision No. 2435, the Board
opined that, even if the City had rejected the November 21, 2013 petition for unit modification
on standing grounds, the Board would not find such rejection unreasonable. In reaching this
supposition, the Board merely reaffirmed its prior holdings that there was no statutory
authority under EERA for an individual to file a unit modification petition, and that PERB’s
regulations do not permit an individual to file a unit modification petition. The City has
pointed to the Board’s supposition in City of Livermore, supra, PERB Decision No. 2435
regarding the reasonableness of a rule prohibiting an individual’s petition for unit modification
as though it resolves the present issue. It does not.
Notably, the stipulation of facts states that Drewes and Anderson jointly submitted a
unit modification petition. In County of Orange (2010) PERB Decision No. 2138-M, the
16

Board approved of the county’s dismissal of a petition for unit modification that was based, in
part, on a lack of standing by the petitioner. There, the county made a determination that the
petitioner was not a “verified employee organization” as required by its local rules at the time
when the petition was filed, and properly denied the petition based on the petitioner’s failure to
comply with the county’s regulations. To the contrary, in this case, there are no facts
demonstrating that the City ever made a determination one way or the other that Drewes and
Anderson lacked standing jointly or individually, or whether they could be considered an
employee organization as defined by EERR section 2.F for the purposes of filing a unit
modification petition. In the event that the City of Livermore rejects a unit modification
petition that was filed by an individual on the grounds that an individual lacks standing to file
such a petition under its local rules, the individual may at that time test the reasonableness of
the City’s decision through the unfair practice process.
Unlike with County of Orange, supra, PERB Decision No. 2138-M, where the
employer refused to process the petition, this dispute involves the manner in which the City
actually processed Drewes’s petition for unit modification. At the time that Charging Party
filed the unfair practice charge, as a signatory to the unit modification petition as well as a
member of the bargaining unit affected by the unit modification, Charging Party had an actual
and substantial interest in the City’s reasonable processing of the unit modification petition.
Charging Party was a member of the class of employees whose rights would be harmed by the
unreasonable application of the local rules regarding unit modifications. Charging Party has an
explicit statutory right to have the City’s unit determinations made reasonably, even if he has
no right to be placed in a particular bargaining unit. Thus, under the circumstances presented,
Charging Party has standing to file the present unfair practice charge, which tests the
17

reasonableness of the City’s rule requiring a supermajority of 60 percent support among
employees affected by the unit modification as well as the reasonableness of the City’s
application of the unit modification criteria in section 7 of the City’s EERR. In reaching this
threshold issue that Charging Party has standing to file the present unfair practice charge, I
make no finding whether Charging Party has standing under the City’s local rules to contest
the placement of particular positions or job classifications in a particular bargaining unit.
The issue before me is established by the events that actually occurred. Thus, I am
called upon to determine whether the manner in which the City actually processed the petition
for unit modification was a reasonable application of section 7 of the EERR and whether the
provision in section 8.A of the EERR that mandates a 60% showing of support was reasonable
on its face.
III. Local Rules Under The MMBA
Section 3507 of the MMBA sets forth the authority of local agencies to adopt
reasonable rules and regulations for the administration of employer-employee relations. Unit
determinations and representation elections are procedures that a public agency employer is
explicitly authorized to adopt under MMBA section 3507.1. Legislative action by a local
government agency, like the adoption of local rules, is presumed to be reasonable in the
absence of proof. (United Clerical Employees, Local 2700 v. County of Contra Costa (1977)
76 Cal.App.3d 119, 125.) The party challenging the application of the rule carries the burden
of demonstrating that the decision was not reasonable. (City of Glendale (2007) PERB Order
No. Ad-361-M.) Thus, a violation based on the adoption or enforcement of an unreasonable
regulation requires, as a threshold matter, a showing that the local rule or regulation abridges
the exercise of a fundamental right, or frustrates the fulfillment of an affirmative duty,
18

________________________
prescribed by the MMBA. (County of Monterey (2004) PERB Decision No. 1663-M.) A local
rule that infringes on employee organization rights under section 3503 or employee rights
under 3506 would constitute an unreasonable regulation. (Ibid.)
Public agencies are not required to adopt rules and regulations. Where a public agency
has not adopted local rules, PERB’s regulations will “fill in the gap.” (County of Orange,
supra, PERB Decision No. 2138-M.) However, when an employer does adopt local rules, they
must (a) be preceded by ‘consultation in good faith’ with employee organizations; (b) be
reasonable; and (c) allow professionals to be represented in a bargaining unit that consists only
of similar employees. (See Gov. Code, § 3507 and Organization of Deputy Sheriffs v. City of
San Mateo (1975) 48 Cal.App.3d 331, 337.) When a public agency has adopted public rules,
they should be interpreted in accordance with National Labor Relations Board (NLRB)2 case
precedent; PERB precedent; and PERB Regulations3 applicable to cases under Educational
Employment Relations Act (EERA),4 Higher Education Employer-Employee Relations Act
(HEERA),5 and the Ralph C. Dills Act (Dills Act).6 (City of Carson (2003) PERB Order
No. Ad-327-M.)
2 The National Labor Relations Act (NLRA) is codified at 29 U.S.C., sections 151
through 169. References to the NLRA in this Proposed Decision shall be made using a short-
form citation. As such, 29 U.S.C. § 159 will be referred to as “NLRA section 9,” et cetera.
3 PERB’s Regulations are codified at California Code of Regulations, title 8, sections
31001 et seq.
4 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board’s Regulations may be found on the Internet at www.perb.ca.gov.
5 HEERA is codified at Government Code section 3560 et seq. The text of the HEERA
and the Board’s Regulations may be found on the Internet at www.perb.ca.gov.
6 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board’s Regulations may be found on the Internet at www.perb.ca.gov.
19

________________________
The importance of unit determinations in collective bargaining cannot be overstated. In
1972, the California State Assembly formed the Aaron Commission to study and evaluate the
effectiveness of existing statutes pertaining to public employer-employee relations in
California and other states. The Aaron Commission had this to say about unit determinations:
One of the most important, as well as one of the most
controversial, aspects of collective bargaining in the public
service is unit determination. It is generally agreed that if
employees with diverse interest, and different supervisors and
working conditions are grouped together in too few and too large
bargaining units, the bargaining process will suffer. On the other
hand, it is also generally agreed that if there are too many and too
small units, the process will become unwieldy and chaotic. There
is frequent disagreement, however, on where to draw the line
between those two extremes….
Experience in public-sector bargaining, relatively short though it
has been, leads us to a conclusion that a proliferation of
bargaining units has constituted more of a problem and an
impediment to effective collective bargaining than has the
establishment of too few bargaining units.
(California Assembly Advisory Council, Final Report, p. 84 (March 15, 1973), (The Aaron
Commission Report).
The Aaron Commission “emphatically” rejected the idea that unit determinations
should be made mechanically, but encouraged “a careful weighing of all pertinent
considerations,” giving the appropriate relative weight to all relevant factors, as dictated by the
circumstances of each case. (The Aaron Commission Report, supra, p. 89.) In practice, PERB
has rejected a rigid application of the “appropriate unit” standard to require a finding of the
“most” appropriate unit. (Antioch Unified School District (1977) EERB Decision No. 37.)7
7 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).
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________________________
Some of the statutes administered by PERB contain explicit directives ordering the
Board to make findings on appropriate units according to specific criteria.8 Unlike the Dills
Act, EERA, HEERA, the IHSSEERA, and TEERA, the MMBA permits employers to adopt
their own rules regarding unit determinations, subject only to a reasonableness standard.
Both PERB and the NLRB have stated a preference for bright line rules when resolving
representation matters, because bright line rules in representation matters achieve “a finer
balance between the statutory policies of stability in labor relations and the exercise of free
choice in the selection or change of bargaining representatives.” (Capistrano Unified School
District (1994) PERB Order No. Ad-261, citing Appalachian Shale Products Co. (1958) 121
NLRB 1160, 1161.) The Board’s rationale is that disputes over the application or
interpretation of regulations cause delays which interfere with the employees’ fundamental
statutory right to freely choose an exclusive representative and severely disrupt labor relations
in general. (Id., and Apple Valley Unified School District (1990) PERB Order No. Ad-209.) In
contrast, bright line rules quickly resolve representational issues, avoid lengthy litigation, and
8 The Dills Act, government code section 3521, orders the Board to consider
community of interest, the effect that the projected unit will have on the meet and confer
relationships, the effect of the proposed unit on efficient operations of the employer, the effect
on the employer of a proliferation of units, and whether the group is made up of skilled craft
employees; the EERA, government code section 3545, orders the Board to consider
community of interest as well as the extent to which such employees belong to the same
employee organization, and the effect of the size of the unit on the efficient operation of the
school district; the HEERA, government code section 3579, orders the Board to consider the
community of interest among the employees, the effect that the projected unit will have on the
meet and confer relationships and on the efficient operation of the employer; the In-Home
Supportive Services Employer-Employee Relations Act (IHSSEERA), government code
section 110008, states that a bargaining unit consisting of all employees in the county shall be
deemed an appropriate unit; and the Transit Employer-Employee Relations Act (TEERA),
government code section 99565(a), orders the Board to consider the community of interest
among employees, the effect that the unit will have on the meet and confer relationships and on
efficient operations of the employer.
21

promote stable employer-employee relations, thereby effectuating the purpose of the Act.
(State of California (1983) PERB Decision No. 348-S.)
One area in which it might be said that a bright line is drawn is the distinction between
those representation cases in which a question concerning representation (QCR) has been
raised, and those representation cases in which no QCR has been raised. A QCR must exist
before the NLRB is empowered to direct an election in an appropriate unit. (United States
Postal Service (1981) 256 NLRB 502, 503.) Under PERB Regulations, an election is held only
after the OGC has conducted an investigation and determined that one should be held in order
to resolve a QCR. (See, for example, PERB Regulations 32776, 33237.)
Typically, a unit modification petition does not give rise to a QCR and thus, no
election. However, as discussed at greater length below, there are circumstances in which
PERB will require proof of majority support when a unit modification seeks to add positions to
an existing unit.
A. PERB’s Unit Modification Regulations
PERB’s unit modification regulations have undergone several revisions over the course
of four decades. Prior to 1982, PERB’s unit modification Regulation 33261, subdivision (f),
stated:
(f) If the petition requests the addition of classification(s) or
position(s) to an established unit pursuant to section (a)(1) above,
it must be accompanied by proof of majority support of persons
employed in the classification(s) or position(s) to be added. Such
support shall indicate desire (1) to be included in the established
unit 	and 	(2) 	to 	be 	represented 	by 	the 	current 	exclusive
representative of the established unit. [Emphasis in original.]
This rule functioned “to discourage an employee organization from petitioning for
recognition only in classifications in which it enjoys employee support and then picking up
22

related eligible classifications after becoming exclusive representative, through a unit
modification. Presumably this is why there is a new showing of interest requirement.”
(Pleasanton Joint School District, Amador Valley Joint Union High School District (1981)
PERB Decision No. 169, concurring opinion.)
In El Monte Union High School District (1980) PERB Decision No. 142 (El Monte I),
the union petitioned for representation of a unit that consisted of all certificated employees and
submitted proof of majority support among those employees. Appropriateness of the
bargaining unit was at issue. The union was granted certification of a unit consisting of
classroom teachers that did not include summer school teachers and hourly teachers. The
parties commenced negotiations for this smaller bargaining unit. Meanwhile, the union sought
representation of two additional separate units: one unit of all summer school teachers; and
one unit of hourly teachers. When the district refused to recognize either of these additional
units, the petitions were consolidated before PERB for a hearing to determine the unit
appropriateness issue. The parties thereafter agreed to place the matter in abeyance pending
the Board’s determination of a related issue in Redwood City Elementary School District
(1979) PERB Decision No. 107 (Redwood City).
In Redwood City, the union had previously been recognized as the exclusive
representative of regular full- and part-time certificated teachers and filed a petition for
recognition as the exclusive representative of summer school teachers. The District refused to
recognize the unit of summer school teachers and the unions sought a determination from the
Regional Director as to the appropriateness of the proposed unit of summer school teachers.
The Regional Director approved the unit and the district appealed the decision to the Board.
While the decision was pending before the Board, the Board issued Peralta Community
23

College District (1978) PERB Decision No. 77, requiring PERB to place all instructional
personnel in the same negotiating unit absent a finding that they lack a community of interest.
The Board in Redwood City then reasoned that the union had attempted from the outset to form
a single bargaining unit of all instructional personnel, had demonstrated proof of majority
support in that larger unit, and had subsequently (through the hearing as to summer school
teachers) demonstrated sufficient evidence of a community of interest among regular and
summer school teachers. Accordingly, the Board treated the second petition for recognition as
a unit modification petition and issued a decision finding one bargaining unit consisting of all
regular and summer school teachers.
After the Board issued its decision in Redwood City, it returned to the matters raised in
El Monte I. Based on substantially similar facts—the union had sought one unit consisting of
all certificated employees and had been forced by circumstance to submit successive petitions
for separate representation of fragmented units, the Board treated the two outstanding
recognition petitions (one for hourly teachers, and one for summer school teachers) as a unit
modification petition. Despite the fact that the proof of support submitted for the original unit
was stale, the Board accepted these old representation cards as proof majority support in the
unit. Citing to the recent Redwood City decision, the Board found the petitions to be in
substantial compliance with the unit modification proceedings and certified the modified unit.
A few years later, the Board decided El Monte Union High School District (1982)
PERB Decision No. 220 (El Monte II). El Monte II involved an alleged breach of the duty to
meet and confer in good faith. As justification for its refusal to meet and confer with the
union, the district asserted that there was newly discovered evidence demonstrating that the
same unit that was at issue in El Monte I, as modified, was inappropriate. The Board rejected
24

the assertions that the evidence presented by the district was “newly discovered” and reasserted
its holdings from El Monte I, stating:
The Board’s authority to define the appropriate bargaining unit is
sufficiently broad to enable it to include new employees in an
existing unit without holding an election when the requisite
community of interest is present, and the equities dictate such a
conclusion. …An election is not necessary for the following
reasons. First, PERB regulations regarding unit modification
provisions do not require the holding of an election before a
modification in the unit can be implemented.[] In addition, the
purpose of the unit modification provisions is to provide a
mechanism whereby positions or classifications may be, among
other things, added to the established unit when a community of
interest exists. By the modification process, the employees in
question are thus able to exercise their right to exclusive
representation and good faith negotiation without the need for
separate units which would derogate the legislative concern over
potential fragmentation of employee groups and proliferation of
bargaining units. To require an election every time a new
position or classification is at issue would have the inevitable
consequence of destabilizing existing employer-employee
relationships contrary to the Act’s fundamental purpose, as well
as being financially prohibitive and administratively cumbersome
for the Board. It is within the Board’s discretion to decide under
what circumstances it might consider an election appropriate.
The Act itself sets forth no requirement that an election be
conducted where established units are to be modified.
In February 1983, PERB Regulation 33261 was renumbered to 32781. PERB
Regulation 32781 stated, in relevant part:
Parties who wish to obtain Board approval of a unit modification
may file a petition in accordance with the provisions of this
section.
(a) A recognized or certified employee organization may file
with the regional office a petition for unit modification:
(1) To add to the unit unrepresented classifications or positions which existed
prior to the recognition or certification of the current exclusive representative of
the unit.
25

(f) If the petition requests the addition of classifications or positions to an
established unit pursuant to section (a)(1) or (c) above, the Board may require
proof of majority support of persons employed in the classifications or positions
to be added. . . .
PERB Regulation 32781, subdivision (f), was interpreted by the Board to authorize the
Regional Director to exercise his/her discretion to determine whether proof of majority support
should be required. (State of California, Department of Personnel Administration (1989)
PERB Decision No. 776-S.) The Board’s rationale was that this regulation protected
employees’ rights by allowing the Board to exercise its special expertise in determining on a
case-by-case basis whether proof of majority support should be required.
In 1989, PERB Regulation 32781 was amended with the result that the proof of support
provision is now found at 32781, subdivision (e). As it is written today, proof of majority
support is required if an accretion would increase the size of the established unit by ten percent
or more (PERB Regulation 32781, subd. (e)(1)), or in the case where the positions sought to be
accreted are the subject of a pending request for recognition the Board shall require proof of at
least thirty percent support among the employees to be accreted.
In Salinas Union High School District (2002) PERB Order No. Ad-315, the exclusive
representative of a bargaining unit of certificated employees filed a unit modification petition
to add, or “accrete,” substitute teachers into the existing bargaining unit. The number of
positions sought to be accreted in this case was well over ten percent of the existing bargaining
unit. The union had already collected signatures from a majority of those employees sought to
be added to the unit, and provided those authorization cards to the Board agent investigating
the petition. On the basis of these signed representation cards, the Board agent issued an
administrative determination granting the petition without ordering a formal election. The
district protested the lack of an election, but did not object to the appropriateness of the
26

proposed bargaining unit or to the form or validity of the authorization cards. Because the
petition sought to accrete over one hundred employees, the district argued that the unit
modification petition raised a QCR that could not be resolved through the card check
procedures. The district cited to NLRB precedent holding that the NLRB may exercise its
discretion to approve a unit clarification adding unrepresented positions only when the case
involves small groups of employees, and especially when the employees in question could
lawfully form their own unit. Under the federal precedent, circumstances like those present in
Salinas Union High School District, supra, PERB Order No. Ad-315, would mandate an
election be held.
In upholding the administrative determination granting the petition without an election,
the Board quoted heavily from El Monte II, reinforcing that the purpose of unit modification
provisions is “to provide a mechanism whereby positions or classifications may be, among
other things, added to the established unit when a community of interest exists.” The Board
also quoted from El Monte II to reinforce its position that “[t]o require an election every time a
new position or classification is at issue would have the inevitable consequence of
destabilizing existing employer-employee relationships contrary to the Act’s fundamental
purpose….” Ultimately, the Board’s rationale took the following path: employees have the
right to select an exclusive representative by submitting representation cards to that effect; the
newly accreted employees demonstrated their choice of the union that was already the
exclusive representative of the established bargaining unit; the combined, single bargaining
unit was already deemed appropriate—a matter that was uncontested; and employees’ statutory
rights included representation by the organization of their choice, but not necessarily in the
27

bargaining unit of their choice. Hence, they suffered no injury when the Board declined the
employer’s request to order an election.
As written today, PERB’s unit modification regulations provide a mechanism whereby
changes in unit composition or description can be litigated before PERB and/or approved by
PERB via a Board order. Under PERB’s procedures, an exclusive representative may file a
unit modification petition in one of several circumstances: (1) to add unrepresented
classifications or positions to the unit; (2) to divide the existing unit into two or more
appropriate units; or (3) to consolidate two or more of its established units into one appropriate
unit. (PERB Regulation 61450, subdivision (a).) PERB Regulations allow an exclusive
representative, an employer, or both jointly, to file several types of petitions: (1) when there
has been a change in circumstances, to delete classifications or positions which are no longer
appropriate to the established unit; (2) to make technical changes to clarify or update the unit
description; (3) to resolve a dispute over unit placement or the designation of a new
classification or position or; (4) absent a showing of changed circumstances, to delete a
position or classification if the petition is jointly filed by the exclusive representative and the
employer, or the petition is filed by one party during the “window period” or during a period
when no collective bargaining agreement is in place. (PERB Regulation 61450, subdivision
(b).) Finally, two or more exclusive representatives may jointly file a petition to transfer
classifications or positions from one represented established unit to another. (PERB
Regulation 61450, subdivision (c).) A petition that requests the addition of classifications or
positions that would increase the size of the established unit by ten percent or more must be
accompanied by proof of support of a majority of the employees to be added. (PERB
Regulation 61450, subdivision (e).) Within 20 days of service of the petition, PERB
28

Regulations permit an employer, exclusive representative or other interested party to file an
answer to the petition refuting the information in the petition and/or opposing the proposed
unit modification. (PERB Regulation 61460.) Finally, under PERB’s unit modification
procedures, an exclusive representative may not file a petition to add a position currently
represented by another exclusive representative to its bargaining unit. (Modesto City School
District (1991) PERB Decision No. 884.) The only exception to this rule is when a petition is
jointly filed by the exclusive representatives of both units to transfer a position from one unit
to another. (Ibid.)
When PERB is faced with a unit modification petition, it looks to the petition and its
contents to determine the parties’ intent. (Modesto City School District, supra, PERB Decision
No. 884.) When a unit modification petition seeks to determine the placement of a new
position, the only criteria for placement of that position are those set out in the statute.
However, when a unit modification petition seeks to change the placement of an existing
classification from one unit to another, the Board applies the rebuttable presumption test set
forth in State of California (Department of Personnel Administration) (1990) PERB Decision
No. 794-S—that the petitioning party must show that the proposed modification is more
appropriate than the existing unit.
Among the criteria PERB will consider when faced with a unit modification petition
arising under the MMBA, are community of interest, the history of representation among the
employees, and the general field of work. (Reinbold v. City of Santa Monica, supra, 63
Cal.App.3d 433.) “Community of interest” includes consideration of the positions’ primary
duties; the education levels required of the incumbents in those positions; the compensation
and funding sources for the positions; the work hours of the positions; and the line of
29

supervision for the positions. (Sweetwater Union High School District (1976) EERB Decision
No. 4.) Additionally, the Board has found that EERA’s grant to employees of the right to join
the organization of their choice implicitly includes the right to choose an organization that is
an effective representative by subordinating the efficient operations of the employer to
employee practice and community of interest. (Ibid.) Finally, when reviewing a unit
determination by a Board agent, the Board applies an abuse of discretion standard, which is
exceedingly narrow in scope. (California State University (1988) PERB Order No. Ad-177-
H.) Under such a standard, the decision maker below is given discretionary power to decide
the issue and the exercise of that discretion will not be disturbed unless it is abused. The key
feature of this process is that the reviewing body may not substitute its own judgment for that
of the body below. (Ibid.) In other words, the Board will not overturn the Board agent’s
decision as long as the Board agent conducted a satisfactory investigation and adduced facts
that reasonably support his or her decision. (Jefferson School District (1980) PERB Order
No. Ad-82.)
B. Unit Clarification Under The NLRB’s Regulations
The NLRB permits a labor organization or an employer to file a petition for
clarification of a bargaining unit where there is a certified or currently recognized bargaining
representative and no question concerning representation exists. (NLRA section 9(c)(1) and
NLRB Rules and Regulations, Series 8, Section 10260, subd. (b).) A unit clarification petition
does not seek or require a Board-certified election. The NLRB described the purpose of unit
clarification proceedings in Union Electric Co. (1975) 217 NLRB 666, 667:
Unit clarification, as the term itself implies, is appropriate for
resolving ambiguities concerning the unit placement or, within an
existing classification which has undergone recent, substantial
changes in the duties and responsibilities of the employees in it so
30

as to create a real doubt as to whether the individuals in such
classifications continue to fall within the category—excluded or
included—that they occupied in the past. Clarification is not
appropriate, however, for upsetting an agreement of a union and
employer or an established practice of such parties concerning the
unit placement of various individuals, even if the agreement was
entered into by one of the parties for what it claims to be
mistaken reasons or the practice has become established by
acquiescence and not express consent.
Where a unit clarification petition raises a QCR, the NLRB will dismiss the petition
because affording the employees an opportunity to select their representative should be given
priority over unit designations. (Gould-National Batteries, Inc. (1966) 157 NLRB 679; LTV
Aerospace Corp., (1968) 170 NLRB 200.) In Safeway Stores, Inc. (1975) 216 NLRB 819, the
NLRB stated: “It is settled that the Board will not normally entertain a petition for unit
clarification during the term of a contract to modify a unit which is clearly defined in the
current collective bargaining agreement.” The primary consideration for the Board was the
potential disruption to the bargaining relationship. (Ibid.)
C. PERB’s Severance Regulations
PERB Regulation 61400 provides a mechanism for an employee organization to sever a
group of employees from an existing bargaining unit that is represented by a recognized
employee organization. A severance petition seeks to “carve out” some, but not all, positions
or classifications that are already included in the incumbent’s unit and replace the incumbent
representative with either a different employee organization or no representation. (Livermore
Valley Joint Unified School District (1981) PERB Decision No. 165.) A severance petition
differs from both a unit modification and a petition for decertification. Whereas PERB
Regulation 61450 permits only the exclusive representative or the employer to file a petition
for unit modification, a severance petition may be filed by any employee organization. Unlike
31

a unit modification petition, however, a severance petition must be accompanied by proof of
support of at least 30 percent of the employees in the unit claimed to be appropriate. Also
unlike a unit modification petition, which can be filed at any time, a severance petition may
only be filed during a specified window period or when no MOU is in effect.
A severance petitioner must establish that the proposed unit is an appropriate unit, but
is not required to show that the proposed unit is “the ultimate unit or the most appropriate
unit.” Instead, what is required is that the petitioner establish that the proposed unit has a
community of interest that is separate and distinct from other employees in the existing unit.
(Alameda County Assistant Public Defenders Assoc. v. County of Alameda (1973) 33
Cal.App.3d 825; and Santa Clara County District Attorney Investigator Assoc. v. County of
Santa Clara (1975) 51 Cal.App.3d 255.)
A severance petition can only be filed by an employee organization, (PERB Regulation
61400, subd. (a)); must be accompanied by sufficient proof of support of employees in the
classifications sought to be severed (PERB Regulation 61210, subd. (b)); the public agency
and the recognized employee organization of the established unit must have an opportunity to
provide a written opposition to the severance (PERB Regulation 61410); and the Board shall
investigate and dismiss the petition if there is a current MOU in effect between the public
agency and the recognized employee organization (unless the petition was filed during the
applicable window period), or if there has been another election or certification granted in the
last twelve months involving the same bargaining unit or a subdivision thereof. (PERB
Regulations 61400, subd. (b), and 61420.)
PERB’s investigation of a severance petition includes a determination of whether the
severance petition was timely filed—either during the window period or at a time when no
32

MOU was in effect; whether the proposed unit to be severed from the unit is appropriate; and
whether the petitioning employee organization has established a majority of support among the
members of the severed unit. (PERB Regulation 61420.)
D. The NLRB’s Severance Regulations
Severance petitions are permitted under NLRA section 9(b) under much narrower
circumstances than PERB regulations permit. Severance under the NLRA is permissible only
upon a showing that the group to be severed is a traditional craft group and that the union
seeking to represent the severed employees is one which traditionally represents that craft.
(American Potash & Chemical Corp. (1954) 107 NLRB 1418, 1422.) Once a petition has been
filed, the NLRB is charged with investigating the petition and, in some cases, providing a
hearing on the issues presented. (See NLRA section 9(c).) In Kalamazoo Paper Box Co.
(1962) 136 NLRB 134, the NLRB adopted a set of factors to be considered when it is faced
with a severance petition:
Factors which warranted consideration in determining the
existence of substantial differences in interests and working
conditions included: a difference in method of wages or
compensation; different hours of work; different employment
benefits; separate supervision; the degree of dissimilar
qualifications, training, and skills; differences in job functions
and amount of working time spent away from the employment or
plant situs under State and Federal regulations; the infrequency or
lack of contact with other employees; lack of integration with the
work functions of other employees or interchange with them; and
the history of bargaining.
[…]
As we view our obligation under the statute, it is the mandate of
congress that this Board “shall decide in each case … the unit
appropriate for the purpose of collective bargaining.” In
performing this function, the Board must maintain the two-fold
objective of insuring to employees their rights to self-
organization and freedom of choice in collective bargaining and
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of fostering industrial peace and stability through collective
bargaining. In determining the appropriate unit, the Board
delineates the grouping of employees within which freedom of
choice may be given collective expression. At the same time it
creates the context within which the process of collective
bargaining must function. Because the scope of the unit is basic
to and permeates the whole of the collective-bargaining
relationship, each unit determination, in order to further effective
expression of the statutory purposes, must have a direct relevancy
to the circumstances within which collective bargaining is to take
place. For, if the unit determination fails to relate to the factual
situation with which the parties must deal, efficient and stable
collective bargaining is undermined rather than fostered.
To accord automatically to a subgroup of employees such as
truckdrivers, severance from a larger established and stable
bargaining unit merely on the basis of the existence of the
traditional job classification and a request for a separate unit
encompassing such classification, does not, in our opinion,
adequately discharge this basic and farreaching responsibility
placed upon the Board by Congress. A title or classification in
common usage does not necessarily establish that separate special
interests exist and are preponderant. This can be determined only
by making an informed judgment based upon an analysis of the
factual circumstances bearing upon the distinguishing factors
present in each case.
(Kalamazoo Paper Box Co., supra, 136 NLRB 134, p. 137-138.)
IV. The City’s Application of EERR Section 7 Was Unreasonable
Neither the parties’ Statement of Agreed Facts nor the PERB complaint seeks a
determination whether EERR section 7 is reasonable on its face. Accordingly, my analysis
herein does not attempt to make findings on this issue. Nevertheless, just as PERB must
interpret contract language as necessary to decide whether an unfair practice has occurred
(County of Sonoma (2011) PERB Decision No. 2173-M), in determining whether EERR
section 7 was reasonably applied, I must engage in some interpretation of the City’s local rule.
PERB applies the rules of statutory construction when interpreting a public agency’s local
rules. (Santa Clara County Correctional Peace Officers’ Assoc. v. County of Santa Clara
34

(2014) 224 Cal.App.4th 1016, 1027.) It is a maxim of statutory construction that if the
language of a statute is clear and unambiguous, then the intent of the Legislature is reflected in
the plain meaning of the statute. (Barstow Unified School District (1996) PERB Decision
No. 1138; North Orange County Regional Occupational Program (1990) PERB Decision
No. 857.)
Similar language in public and private sector labor relations statutes should be
interpreted similarly. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608; Building
Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 658; and
Capistrano Unified School District (2015) PERB Decision No. 2440.) More specifically, the
court has determined that the phrase “appropriate bargaining unit” in the MMBA, is borrowed
from the federal statute, and reference to the standards of appropriateness established by
NLRB decisions is warranted. (Alameda County Assistant Public Defenders Assoc. v. County
of Alameda, supra, 33 Cal.App.3d 825; Organization of Deputy Sheriffs of San Mateo County
v. County of San Mateo, supra, 48 Cal.App.3d 331.)
A. The City’s Appropriate Unit Standard Is The Same Standard Applied By PERB
The City argues that its EERR was adopted prior to the creation of the MMBA, and as
such, it is one of those agencies permitted under section 3500, subdivision (a), “to continue to
utilize those provisions unless said provision [are] not in accordance with the MMBA.” The
language in the City’s EERR, which is currently in effect and the subject of this dispute, was
adopted on January 17, 1977. The MMBA was enacted in 1968. In fact, section 20 of the
City’s EERR states, at subsection C,
The provisions of this Resolution are not intended to conflict
with, nor shall they be construed in a manner inconsistent with,
the provisions of Chapter 10, Division 4, Title I of the
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Government Code of the State of California (Section 3500-3510)
[the MMBA] as amended.
Accordingly, where the City has adopted language in its EERR that imitates public or
private sector labor statutes, I shall interpret the EERR consistent with interpretations of
similar language by PERB, the NLRB, and the courts.
Subdivision A of EERR section 7 defines “an appropriate unit” as “the broadest
feasible grouping of positions that have a community of interest.” [Emphasis added.] It then
lists the unit criteria that the City is required to apply when making a unit determination.
These criteria are the same standards that are listed in EERA section 3545 subdivision (a):
bargaining history, community of interest, and operational efficiency. The Board has held that
the proper application of these criteria will reflect a balance between the harmful effects on an
employer of excessive unit fragmentation and the harmful effects on employees and the
organizations attempting to represent them of an insufficiently divided negotiating unit or
units. (San Diego Community College District (2001) PERB Decision No. 1445.)
1. Community of Interest
“Community of interest” is a term of art adopted by PERB, but originating from the
NLRB. (See Los Angeles Unified School District (1976) EERB Decision No. 5, fn. 2; and
Redwood City Elementary School District, supra, PERB Decision No. 107, dissent at fn. 2).
The City’s adoption of the phrase “community of interest” as one of the criteria for
determining the appropriateness of a proposed bargaining unit should be given the same
understanding. Accordingly, the City’s analysis of the proposed unit should include a
consideration of the method of compensation, wages, hours, employment benefits, supervision,
qualifications, training and skills, contact and interchange with other employees, and job
36

functions of every position in the proposed unit. (San Diego Community College District,
supra, PERB Decision No. 1445.)
According to Roberts’ January 7, 2014 determination, he found a “sufficient lack of a
‘community of interest’” and/or that specific unidentified classifications within the petitioned-
for unit did not “sufficiently lack a ‘community of interest’” with other unidentified
classifications in the petition. On its face, it is clear that Roberts did not apply a community of
interest standard to the petition that was filed—he applied a lack of community interest
standard. In Pleasanton Joint School District, Amador Valley Joint Union High School
District (1981) PERB Decision No. 169, where PERB was asked to find appropriate a unit
consisting of only school psychologists despite prior determinations that all certificated (pupil
services) employees should be in the same bargaining unit, PERB stated that finding a separate
unit is not tantamount to finding a lack of community of interest with the preexisting unit. In
other words, the petitioning party did not need to establish that the employees in the proposed
unit lacked a community of interest with the remaining employees in the existing unit—merely
that the proposed unit should be one which satisfies the statutory criteria for “appropriate.”
Based on a strict reading of Roberts’ determination, it is clear that he failed to apply a
community of interest standard to determine whether the petitioned-for unit was appropriate,
and instead applied a “lack of community of interest” standard.
2. Negotiating History
In Livermore Valley Joint Unified School District, supra, PERB Decision No. 165, the
Board reviewed a hearing officer’s proposed decision to sever an operations-support services
unit from the existing wall-to-wall unit of classified employees in the district. Because the
petition was a severance petition rather than an initial unit determination, the Board stressed
37

the importance of the parties’ negotiating history when evaluating the request. Within the
larger context of the unit criteria listed in EERA section 3545, subdivision (a), the Board
stated,
Negotiating history, as one of these criteria, is an important
factor, and a stable negotiating relationship will not be lightly
disturbed. Nonetheless, it is but one of several criteria looked to
by the Board.
The Board went on to note evidence of discontent amongst blue collar employees over the
quality of representation received by them and in particular, their belief that other members of
the bargaining unit were receiving a higher quality of representation. The Board also noted
that there had been a relatively short period of representation under the incumbent union
during which only two agreements, each of short duration, had been reached. Ultimately, the
Board held that severance was appropriate, stating:
… here, the community of interest factors strongly favor the
petitioned-for unit, the length of the negotiating history is
relatively short, and the evidence shows disparate interests of unit
members, and the overwhelming majority of employees in the
petitioned-for unit do not desire to be represented by the
incumbent organization….
In his February 5, 2014 Final Determination, Roberts lists “the history of employer-
employee relations in the unit” as one of the factors he considered in making his determination.
But the determination states findings without explaining what data was compiled or considered
in reaching those findings. While a previous unit decision by the Board is an important
consideration, it is binding only so long as circumstances and Board precedent remain the
same. (Regents of the University of California (1986) PERB Decision No. 586-H.) Here, it is
difficult to determine whether the City considered previous unit determinations when making
38

its decision on the petitioned-for unit, because it did not provide a sufficient explanation of its
rationale.
3. Operational Efficiency
In Pleasanton Joint School District, Amador Valley Joint Union High School District,
supra, PERB Decision No. 169, the Board noted that negotiating would always impose some
burden on the employer, and this fact was undoubtedly considered by the Legislature when it
imposed the current scheme of collective bargaining on the parties. Thus, in order for
operational efficiency to justify a denial of a petition for a separate unit, the employer must
demonstrate “convincing evidence of a detrimental impact” on its operational efficiency.
Indeed, in severance cases, the party seeking severance will never be able to demonstrate that
adding an additional unit will improve an employer’s efficiency of operations. Therefore,
PERB only requires that the additional unit not be unduly burdensome. (Los Angeles Unified
School District (1998) PERB Decision No. 1267; State of California (Department of Personnel
Administration), supra, PERB Decision No. 794-S.)
Roberts’ January 7, 2014 determination notes only that it is in the City’s best interest to
“have its bargaining units formed as similarly interested as possible.” But the City presents no
evidence that granting the unit modification petition would be unduly burdensome. The fact
that the City’s interest is best served by fewer, larger bargaining units (or even a single, wall-
to-wall bargaining unit) cannot, alone, support its decision to deny the petition.
B. A Reasonable Application Of Unit Appropriateness Standards Requires Written
Findings
A proper application of the reasonableness standard dictated by the MMBA means that
where local rules have been adopted, PERB’s role in representation issues is limited. (County
of Orange (2016) PERB Decision No. 2478-M.) Where a public agency has adopted criteria
39

for unit determination, it should be allowed to apply those criteria to determine if the
petitioned-for unit is appropriate. It is not PERB’s province to apply the City’s EERR section
7 to determine the contours of an appropriate unit. PERB’s role is only to review the City’s
application of EERR section 7 to determine if it was reasonable. (City of Glendale, supra,
PERB Order No. Ad-361-M; Alameda County Assistant Public Defenders Assn. v. County of
Alameda, supra, 33 Cal.App.3d 825, 830.) If reasonable minds could differ over the
appropriateness of the bargaining unit, PERB should not substitute its judgment for the City’s.
(County of Riverside (2010) PERB Decision No. 2119-M.) This standard does not require
PERB to make its reasonableness determination in an analytical vacuum, however. Rather,
PERB’s determination must begin by examining the City’s application of its standard to the
relevant facts presented by the petition.
1. When Reviewing A Unit Appropriateness Determination, The
Reviewing Tribunal May Not Exercise Its Independent Judgment
In International Brotherhood of Electrical Workers v. Aubry (1996) 42 Cal.App.4th 861
(Aubry), rival unions sought the right to represent a group of rail maintenance employees of the
Los Angeles County Metropolitan Transit Authority (MTA). The Amalgamated Transit Union
(ATU) sought to accrete the rail maintenance employees into an existing unit of bus
maintenance employees, while the International Brotherhood of Electrical Workers (IBEW)
sought a unit of just the rail maintenance employees. The section of the Public Utilities Code
that covered employees of the MTA stated that disputes over whether a particular group of
workers constitutes an appropriate unit should be submitted to the Director of the Department
of Industrial Relations (DIR) for determination. The Director is required to apply federal labor
law and federal administrative practice. After a hearing, the Director found that the rail
maintenance employees were properly accreted into the existing unit represented by ATU.
40

After exhausting its administrative remedies, IBEW sought a peremptory writ of administrative
mandate. The trial court applied the substantial evidence standard to the Director’s decision
and found it to be adequately supported by substantial evidence. IBEW appealed the trial
court’s decision, arguing that the trial court should have exercised its independent judgement
in reviewing the Director’s decision.
On appeal, the court gave five reasons why the trial court should not apply an
independent judgment standard to its review of the Director’s unit appropriateness decision.
First, the court found no case law support for the independent judgement test for judicial
review of an administrative determination of an appropriate bargaining unit. Second, the court
noted that both PERB and the courts eschew an independent judgment test, citing Azusa Fire
Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, and Reinbold v. City of Santa
Monica, supra, 63 Cal.App.3d 433 in which courts applied an abuse of discretion and
substantial evidence test of a Board agent’s determination; and citing Dills Act section 3520
for its mandate that the Board apply a substantial evidence standard to a review of a Board
agent’s unit determination. (Aubry, supra, 42 Cal.App.4th at p.869.) Third, the court noted
that when NLRB determinations of appropriate-unit decisions are reviewed by federal courts,
the courts apply a substantial evidence standard. (Aubry, supra, 42 Cal.App.4th at p. 870.)
Fourth, the court noted that Director’s decision was an exercise of the Department’s
legislatively created role in bargaining unit determinations and, as such, was deserving of the
same level of deference the courts gave to other specialized labor agencies like PERB and the
Agricultural Labor Relations Board (ALRB). (Aubry, supra, 42 Cal.App.4th at p. 870.)
Finally, the court stated:
…deference seems particularly appropriate where the matter to be
decided involves a judgmental assessment of a number of
41

relevant criteria, not all of which can be expected to point in the
same direction, and the overall standard, community of interest, is
not susceptible of mechanical application. Deference also seems
appropriate because there may be more than one appropriate unit,
so that the question is ordinarily not whether the agency
identified the most appropriate unit, but rather whether it
identified an appropriate one.
(Aubry, supra, 42 Cal.App.4th 861, 870, internal citation omitted.)
The present circumstances present a slightly different procedural posture than the court
encountered in Aubry. Nevertheless, PERB’s role in reviewing a public agency’s application
of its unit appropriateness local rule is similar to the court’s review of the Director’s decision
in Aubry. The MMBA grants public agencies the right to promulgate their own rules regarding
unit appropriateness determinations, and authorizes PERB to review the application of those
rules for reasonableness. (See MMBA, §§ 3507, 3507.1, and 3509, respectively.) If PERB
were to apply its own independent judgment to a review of a public agency’s findings of an
appropriate unit, that conduct would effectively usurp the public agency’s statutory right to
adopt and apply its own rules. Because PERB is clearly prohibited from exercising its
independent judgment on unit appropriateness determinations where a public agency has
adopted and applied its own local rules on the subject, PERB’s reasonableness review must
emulate one of the models described by the court in Aubry, in which the reviewing tribunal
studies the findings of the agency making the decision to determine whether the decision was
supported by evidence.
2. Written Findings Serve An Important Legislative Function
In Topanga Association For A Scenic Community v. County of Los Angeles (1974) 11
Cal.3d 506 (Topanga), the County Board of Supervisors granted a zoning variance to permit
the establishment of a mobile home park on land that had previously been zoned for light
42

agriculture and single family homes. When appeals to the zoning board brought no change in
the decision, the petitioner sought a writ of mandamus. The writ was denied and the petitioner
appealed. The Court noted that in order to apply the substantial evidence standard to the Board
of Supervisors’ findings, it must scrutinize the record in order to determine whether substantial
evidence supported the administrative findings that the property in question met the legislative
variance requirements. (Id., at p. 512.) After examining several cases where a local entity’s
alleged failure to adhere to its own ordinance was reviewed by the courts of appeal, the
Supreme Court stated:
…[W]e hold that regardless of whether the local ordinance
commands that the variance board set forth findings, that body
must render findings sufficient both to enable the parties to
determine whether and on what basis they should seek review
and, in the event of review, to apprise a reviewing court of the
basis for the board’s action. We hold further that a reviewing
court, before sustaining the grant of a variance, must scrutinize
the record and determine whether substantial evidence supports
the administrative agency’s findings and whether these findings
support the agency’s decision. In making these determinations,
the reviewing court must resolve reasonable doubts in favor of
the administrative findings and decision.
(Topanga, supra, 11 Cal.3d 506, 513-514.) The Court also noted:
“…a findings requirement serves to conduct the administrative
body to draw legally relevant subconclusions supportive of its
ultimate decision, the intended effect is to facilitate orderly
analysis and minimize the likelihood that the agency will
randomly leap from evidence to conclusions. … In addition,
findings enable the reviewing court to trace and examine the
agency’s mode of analysis. …
Moreover, properly constituted findings enable the parties to the
agency proceeding to determine whether and on what basis they
should seek review. …they also serve a public relations function
by helping to persuade the parties that administrative decision-
making is careful, reasoned, and equitable.
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(Topanga, supra, 11 Cal.3d 506, 516-517.) In Antelope Valley Community College District
(1977) EERB Order No. Ad-16, the Board sustained a Regional Director’s determination that
the union had met the requisite showing of support, but did so without providing any rationale.
Member Cossack criticized the Board’s failure to explain its findings, citing Topanga. (See
Id., Concurrence at fn. 2.)
As noted in section III.A.2. of this Proposed Decision, when the Board is asked to
review the unit determination of a Board agent, it applies an abuse of discretion standard.
(California State University, supra, PERB Order No. Ad-177-H.) The Board’s role on appeal
is not to reweigh facts but to ensure that they support the administrative determination. If the
OGC conducts an adequate investigation and reaches a conclusion consistent with the facts
developed during the investigation, deference is due and no abuse of discretion will be found.
(Jefferson School District, supra, PERB Order No. Ad-82.)
The MMBA requires that unit determinations shall be determined and processed in
accordance with rules adopted by a public agency. (Gov. Code, § 3507.1.) In this manner, the
City’s application of its EERR section 7 is an exercise of its legislatively created role in
bargaining unit determinations. Without written findings, it is not clear if the City applied
Rule 7 in accordance with its own rules to find that Charging Party’s petition should be denied.
The City provides some insight into its rationale in its January 7, 2014 memorandum as well as
the February 5, 2014 “Final Determination.” However, it is not only the City’s final
determination on the question of whether a particular bargaining unit is appropriate that is
important—it is also the process employed by the City in reaching that determination which
must be evaluated for reasonableness under the statute and, by extension, its own local rules.
In the fulfillment of its legislatively created role in bargaining unit determinations, the City
44

________________________
should make findings supportive of its ultimate decision which enable the parties to determine
whether and on what basis they should seek review.9
3. Written Findings Serve The MMBA’s Purpose Of Promoting Full
Communication Between Public Employers and Their Employees
In recognition of the importance that unit determination decisions occupy in labor
relations, PERB regulations authorize a Board agent to conduct a hearing as part of its
investigation to resolve unit modification petitions (PERB Regulation 32168), and to render a
written decision which may then be appealed to the Board. The Board’s decisions are
published on PERB’s website. Even a cursory review of these decisions establishes that when
a Board agent issues findings regarding a unit modification petition, the Board agent not only
considers the factors listed in PERB’s checklists, but often systematically reviews all of the
classifications affected by the unit modification petition against those criteria.10 Indeed, the
Board has held that a Board agent’s determination of community of interest based solely on
prior decisions (without a hearing) is insufficient to support its findings. (Castaic Union
School District (2010) PERB Order No. Ad-384.)11
9 In County of San Joaquin (2004) PERB Decision No. 1600-M, the union argued that
the employer was required under Topanga to give a rationale for refusing to adopt a non-
binding mediator’s decision. The Board distinguished the facts of that case from Topanga and
found that it was “unnecessary to address the Topanga standard proffered by SEIU or the
issues resulting from application of that standard.”
10 Subject-matter-specific searches of PERB’s published decisions regarding unit
determinations and unit modifications may be conducted free of charge on PERB’s official
website at www.perb.ca.gov. See also Community of Interest Checklist, PERB-862;
Efficiency of Operations Checklist, PERB-866; Representation History Checklist, PERB-874;
and Skilled Crafts Checklist, PERB-878; which may be found at
http://www.perb.ca.gov/Forms.aspx.
11 In Service Employees International Union v. City of Santa Barbara (1981) 125
Cal.App.3d 459, the union argued that it had a property interest in its status as the exclusive
representative of a particular unit of employees, and a local rule that permitted the employer to
45

________________________
In Unit Determination for the State of California (1979) PERB Decision No. 110-S, for
example, PERB embarked on a massive unit appropriateness determination covering most of
the employees employed by the State of California. Ultimately, the Board created 20 distinct
bargaining units by applying the standards articulated in Government Code section 3521. I
bring attention to this decision because it resolves the unit determinations of an incredibly
diverse workforce while acknowledging that unit determination criteria cannot be viewed in
isolation from one another, given the substantial interplay among the various criteria. (Ibid. at
p. 7.) This example demonstrates the quality of decision making that is required of the City in
applying a nearly identical standard of review to positions within its jurisdiction.
Written findings, when PERB is reviewing an employer’s application of its own local
rules regarding unit placement, are perhaps even more important here than when PERB rules
on its own unit determinations. Unlike PERB, the City has an interest in the outcome of this
dispute. The number of bargaining units with which the City must negotiate, and their relative
bargaining strength, has a direct impact on City operations. Nowhere is this fact made more
explicit than in Roberts’ January 7, 2014 determination, where he states, “I also find that it is
in the interest of the City to have its bargaining units formed as similarly interested as
possible.” But case law makes it clear that it is not only the City’s interest in the efficiency of
its operations that must be considered. In fact, case law makes it clear that the employer’s
concerns must often be subordinated to employee choice in an exclusive representative. (See
Sweetwater Union High School District, supra, EERB Decision No. 4; Pleasanton Joint School
change the unit composition without holding an administrative hearing, violated the union’s
due process rights. The court held that there was no property right to a particular unit
composition and on that basis held that neither the MMBA nor the local rule required the
employer to conduct an administrative hearing prior to modifying the existing unit. The court
did not attempt to review the reasonableness of the city’s unit appropriateness determination.
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District, Amador Valley Joint Union High School District, supra, PERB Decision No. 169; and
Peralta Community College District (1987) PERB Order No. Ad-164, holding that the free
choice of an exclusive representative is a cornerstone to EERA, as it is in all analogous
collective bargaining schemes. See also County of Orange, supra, PERB Decision No. 2478-
M, where the Board declined to interpret a local rule requiring that an appropriate
representation unit “shall be the largest feasible group of employees having a community of
interest” to mean that avoiding fragmentation is the only criterion to be considered or that it
supersedes all other criteria.) While it is not improper for the City to take its own concerns
into consideration, the City’s failure to detail the scope of its investigation, identify the
relevant facts discovered during the course of its investigation, and provide an explanation of
how the evidence was weighed against all other relevant factors, creates an appearance of
unlawful bias, even if none is present.
Unfortunately, based on the dearth information provided by the City, it is not clear
whether any investigation was conducted. Neither the proposed decision in January nor the
Final Determination in February states what evidence Roberts compiled or how he compiled
the evidence upon which he based his decision. Although Roberts attached a spreadsheet to his
decision, he provides no insight into whether incumbent employees in affected positions were
interviewed about the categories listed on the spreadsheet, or if he came to conclusions based
on some method other than interviewing the incumbents about their work duties and
responsibilities. It is likewise unclear how the categories on the spreadsheet were deemed
relevant, or whether they were equally weighted. Even assuming the data on the spreadsheet
were sufficient to establish that the positions did or did not share a community of interest, there
is no discussion in either the January or February memos that would speak to the other
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mandatory categories of bargaining history and efficiency of operations, what evidence was
presented or considered on those issues, and how those other categories were weighed against
any community of interest finding.
Given the importance of unit determinations to public sector labor relations, it is not
sufficient for the City to simply state the standard that applies and then provide a conclusion
without also including the analytical process in its decision. Clearly, there was a time in the
past when the ALE-represented bargaining unit differed from its current composition. And
there are clearly a group of employees who support changing the current composition of the
bargaining unit. It is reasonable to infer from these facts that the positions and classifications
involved in both the Charging Party’s proposed unit modification and the City’s proposed unit
modification share similarities and differences. The City Manager’s duty in determining
whether to grant or deny a unit modification petition is to illuminate and prioritize those
similarities and differences between and among the affected classifications. Anything less than
a full explanation is unreasonable. Even assuming the City were to reach an identical
conclusion after illumination and application of the standards in its EERR section 7 to each of
the positions listed in the unit modification petition, the written decisions issued in January and
February must be deemed unreasonable for their failure to provide the public and the parties
with “findings sufficient both to enable the parties to determine whether and on what basis they
should seek review and, in the event of review, to apprise a reviewing court of the basis for the
[City’s] action.” (Topanga, supra, 11 Cal.3d at p. 514.)
C. The City Must Apply Its Analysis To The Unit Proposed By The Petitioner
In addition to the above-described concerns, it is not clear whether the City’s Final
Determination compared the relative appropriateness of the petitioned-for unit against the
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existing unit or against the unit proposed by Roberts in his memorandum dated January 7,
2014. The Board ruled early in its history that it must in each case determine the
“appropriateness” of a unit without being limited to a choice between “an” or the “most”
appropriate unit, and must in each case weigh and balance the statutory criteria in order to
achieve consistency of application and the general objectives of EERA. (San Diego
Community College District, supra, PERB Decision No. 1445; citing Antioch Unified School
District, supra, EERB Decision No. 37.) Failing to consider the unit proposed by the petition
disenfranchises the petitioning employees. (Pleasanton Joint School District, Amador Valley
Joint Union High School District, supra, PERB Decision No. 169.)
Roberts cites EERR section 8.C for authority to modify the unit in a manner that differs
from the unit sought by the November 21, 2013 petition. Section 8.C states,
The City Manager shall make the final determination on the
appropriateness of all units after consultation with employee
organizations who request such consultation. In making such
determination, the City Manager shall not be limited to
consideration of the unit or units requested.
The first sentence of section 8.C requires the City Manager to make a determination on
all units; the second sentence permits him/her to make determinations beyond the unit(s)
requested. Section 8.C does not appear to excuse the City Manager from ruling on the
appropriateness of the unit/s sought in the petition. If the City Manager has determined that
the unit/s requested is/are inappropriate, the petitioning party is entitled to an explanation of
that fact. As noted above, there are insufficient facts in the record from which PERB can
determine that the City Manager reasonably applied the unit modification factors to the petition
filed on November 19, 2013. To the extent that the City Manager’s Final Determination failed
49

to analyze the appropriateness of the unit sought in the petition, such determination would
reflect an unreasonable application of EERR section 7.
V. The City’s EERR Section 8 Is Unreasonable.
Under EERR section 8, before the City will consider a unit modification request from
an employee organization, it must be “accompanied by proof of employee approval of the
proposed modification signed by not less than 60% of those employees who, if the proposed
modification should be granted, would be moved from one representation unit to another.”
Charging Party argues that the 60 percent requirement is unreasonable because it conflicts with
the statutory mandate in section 3507.1 that a majority of employees in an appropriate
bargaining unit shall determine the exclusive representative. Respondent argues that the 60
percent threshold operates as a “simple majority” in a bargaining unit of five employees, and is
therefore, reasonable. Both arguments miss their marks.
Both parties at times appear to misconstrue the distinction between a bargaining unit
and an exclusive representative. This is evident in the way the parties refer to the bargaining
unit as the “ALE bargaining unit,” rather than using some descriptive term related to the types
of positions or classifications that populate the unit. For example, paragraph 9 of the parties’
Agreed Statement of Facts, states, “Their request sought to separate a group of employees to be
formed into a new bargaining unit from their unit of representation, ALE.” This phrase could
be interpreted as the petitioners’ desire to modify the bargaining unit, or it could be interpreted
as a desire to sever some of the bargaining unit from the exclusive representative. In paragraph
17, the parties state, “It was also held [that]the City violated section 7 by determining that
Accounting Technician, Division Clerk and Typist Clerk classifications from the Airport
Division and Water Resources Division should remain with ALE.” Again, this phrase could be
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misconstrued as a failed attempt to sever a portion of the bargaining unit from its exclusive
representative. This ambiguity has also pervaded the language used by non-party entities who
opposed the modification. In his January 9, 2014, letter to Roberts, Bagakis includes
signatures of employees who “request to remain with my current bargaining unit represented
by the Association of Livermore Employees (ALE).” Because the petition filed in this case did
not seek a change of bargaining representative, it is not clear why the petition signed by
affected employees would need to include a statement of their desire to remain represented by
ALE.
In an interoffice memorandum from Roberts to the employees affected by the unit
modification petition, Roberts quotes a portion of EERR section 8 and states that employees
assigned to the new unit “shall retain the current compensation and benefits established for
such classification under the current ALE Memorandum of Understanding (MOU) until the
expiration of said MOU and until such time as a new Unit MOU or compensation and benefits
plan has been determined for such assigned classifications within the newly formed Unit.”
Drewes testified that he understood that this meant that, should the unit modification be
granted, the new unit would continue to have ALE benefits “until such time as the new unit
renegotiated through our new labor union.” This statement demonstrates a profound
misunderstanding of what was to be accomplished by the unit modification petition that
Drewes himself filed, as the petition did not seek a change in exclusive representative for the
new bargaining unit in the event that the petition was granted.
The problem with this blurring of the distinction between a bargaining unit and the
exclusive representative of that bargaining unit is that the statute guarantees employees the
right to be represented by the employee organization of their choice; it does not give
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employees the right to be in the bargaining unit of their choice. (Reinbold v. City of Santa
Monica, supra, 63 Cal.App.3d at p. 440.) The effect of EERR section 8, which gives
employees the right to vote on the bargaining unit of their choice, is not immediately clear.
However, both the statute and case law make it clear that the right to determine the proper
bargaining unit is reserved to the employer. (Ibid.) Although it would not appear to be per se
unreasonable for a public agency employer to cede to employees some authority to determine
appropriate unit composition, EERR section 8 is not so innocuous as simply sharing some of
the decision-making authority with affected employees. In this case, the employer has taken
the position that EERR section 8 effectively ties its hands when a supermajority of the affected
employees haven’t endorsed a particular unit modification. This circumstance presents a more
serious problem.
In San Bernardino County Sheriff’s Employees’ Assn. v. Board of Supervisors of San
Bernardino County (1992) 7 Cal.App.4th 602 (San Bernardino), the county maintained a unit
modification rule that required that unit modification requests be accompanied by a
proof of support of thirty percent (30%) or more of the employees
within the proposed new representation unit, including thirty
percent (30%) of the employees proposed to be removed from an
existing unit and placed in the new proposed unit; which must
include at least twenty percent (20%) of the employees making
up the authorized employee representation unit proposed to be
modified…
(Id., at fn. 7.)
A union representing peace officers filed two unit modification petitions. One petition
sought to move 10 deputy coroner investigators into the 776-employee safety unit comprised
of non-supervisory peace officers. The other petition sought to move 6 supervising deputy
coroner investigators into the 202-employee safety management and supervisory unit
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comprised of supervisory and management peace officers. Both petitions were accompanied
by authorization cards for all the employees who sought a change of bargaining unit.
The county’s employee relations panel recommended that the petition be granted
notwithstanding that the petitions did not demonstrate proof of support of 30% of the
employees in the proposed new units, and the employees requesting the modification did not
constitute 20% of either the units they sought to leave or the units in which they sought
inclusion. Against the recommendation of its panel, the county denied the petition. The trial
court granted the union a writ of mandate to modify the bargaining units as requested in the
petition, and the county appealed. In reviewing the trial court’s findings, the appellate court
analyzed separately the 20% and 30% requirements.
As to the 20% requirement, the court found that it would frustrate the declared policy of
MMBA section 3508 by eliminating the possibility of correcting a situation in which only a
few peace officer employees sought transfer to a bargaining unit comprised solely of peace
officers as well as by perpetuating classification mistakes because only a few employees were
affected. (San Bernardino, supra, 7 Cal.App.4th 602, pp. 613-614.)
As to the 30% requirement, however, the court stated,
The 30 percent requirement assures that the employees in the
proposed unit support the addition of new classifications of
employees. The 30 percent requirement is reasonable under
section 3508. We conclude the trial court erred in granting the
petition for writ of mandate absent a showing in the record of
compliance with the 30 percent requirement.
(San Bernardino, supra, 7 Cal.App.4th 602, 615.) The court’s holding noted that employees,
even peace officers, did not have a right to belong to a particular bargaining unit, as well as
that employee choice was an appropriate factor to consider in determining appropriate units.
(Ibid.)
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Despite the factual differences in this case, there are important lessons to be learned
from the court’s analysis in San Bernardino. Most importantly, the court focused on the effect
that the rule would have on the orderly administration of the statute. As with the 20% rule in
San Bernardino, by enforcing a rule that permits a minority of employees (in this case, 41%) to
prevent the modification of a bargaining unit simply because they do not approve it, the City
has adopted a rule that frustrates the declared policy of the statute. As noted in Sweetwater
Union High School District, supra, EERB Decision No. 4, implicit in the right of employees to
join and be represented by the employee organization of their choice is the notion that the
employees will have the ability to choose an organization which is an effective representative.
An effective representative will generally be one largely determined by the community of
interest and established practices of the employees. (Ibid.) A local rule that subordinates these
factors to the wishes of a minority of employees interferes with the ability of the majority to be
represented by an effective organization of its choice and, as such, frustrates the declared
policy of the statute.
Both PERB and the NLRB have rejected a formulaic application of the unit
appropriateness test, preferring instead a totality of circumstances approach to the
determination of each unit composition issue. By adopting and enforcing a supermajority
threshold requirement, the City has elevated the choice of a minority of employees above all
other considerations, in contravention of the policies adopted by PERB and the NLRB to make
“an informed judgment based upon an analysis of the factual circumstances bearing upon the
distinguishing factors present in each case.” (Kalamazoo Paper Box Corp., supra, 136 NLRB
134 at p. 138.)
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REMEDY
MMBA section 3509 states, in relevant part:
3509. Board; powers and duties; unfair practices; rules;
jurisdiction over employee organization actions
(a) The powers and duties of the board described in Section
3541.3 shall also apply, as appropriate, to this chapter and shall
include the authority as set forth in subdivisions (b) and (c).
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.
(c) The board shall enforce and apply rules adopted by a public
agency concerning unit determinations, representation,
recognition, and elections.
Government Code section 3541.3 vests PERB with broad remedial authority to
effectuate the purpose of the Act. Accordingly, a properly designed remedial order seeks a
restoration of the situation as nearly as possible to that which would have obtained but for the
unfair labor practice. (Modesto City Schools (1983) PERB Decision No. 291.)
1. Unreasonable Application Of EERR Section 7
The City has been found to have violated PERB Regulation 32603, subdivision (f), and
MMBA section 3507 by unreasonably enforcing its EERR section 7, with respect to its failure
to provide a written explanation of its findings regarding the unit modification petition filed on
November 19, 2013. Therefore, it is appropriate to order that the City take all reasonable steps
necessary to make and issue written findings regarding the evidence it considered in order to
reach its February 5, 2014 determination to deny the petition.
For the reasons stated above, I remand this matter to the City. The City has adopted the
same criteria for determining an appropriate unit that PERB applies when it makes unit
determinations, and it should be held to the same standard that is applied when PERB’s unit
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determinations are challenged. In other words, the City Manager must make findings, reduce
his findings to writing, and provide sufficient analysis for PERB to determine whether the
required standard was reasonably applied to the facts adduced. If the City has discovered a
method for applying these unit appropriateness standards without conducting an investigation
that includes a hearing where facts are presented by all parties under oath, let it reveal that
method in its written explanation of its findings. If no such alternate method exists, then the
City must conduct an investigation and then report its findings.
2. Adoption of Unreasonable EERR Section 8
The proof of support mandate in City’s EERR section 8 is contradictory to the statutory
policy that employees be grouped in bargaining units which afford effective representation by
the organization of their choosing. Because effective representation is largely determined by
community of interest and the established practices of employees, a rule which subordinates
these considerations to the choice of a minority of affected employees is unreasonable.
Where a local rule has been found facially unreasonable, it is deemed invalid. (County
of Imperial (2007) PERB Decision No. 1916-M.) In this case, the City’s EERR section 8 is
unreasonable because of the phrase, “by submitting to the City manager a petition
accompanied by proof of employee approval of the proposed modification signed by not less
than 60 % of those employees who, if the proposed modification should be granted, would be
moved from one representation unit to another.” The remaining portions of EERR section 8
have not been shown to be patently unreasonable. Thus, it is not necessary to invalidate the
entire rule—merely the portion of it that has been deemed unreasonable. Thus, the City shall
be ordered to strike the unreasonable phrase from its EERR section 8. Accordingly, EERR
Section 8 should read:
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A. An employee organization may request the modification of an
established representation unit. A unit modification request may
not be submitted until at least 36 months have elapsed from the
most recent date of certification of the unit from which positions
would be removed should the modification request be granted.
No such request shall be processed unless it is filed no sooner
than 150 calendar days and no later than 90 calendar days before
the expiration of the then current memorandum of understanding
or agreement between the City and the employee organization
which is then presently certified as the representative of the unit
from which one or more positions would be removed if the
request were granted. All petitions for modified units shall be
accompanied by a list of all classifications to be included in the
modified unit, the number of employees in each classification, as
well as the divisions and department to which they belong.
The remainder of EERR section 8, subdivisions B-E are unchanged by this order.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the CITY OF LIVERMORE violated the Meyers-Milias-Brown Act
(MMBA or Act), Government Code section 3507. The CITY OF LIVERMORE violated the
Act by enforcing its EERR section 7 in an unreasonable manner by making a unit
determination without providing an adequate explanation of its findings and the evidence upon
which such findings are based as well as by adopting EERR section 8, which mandates proof
of 60% support among employees affected in a proposed unit modification.
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Pursuant to section 3509 of the Government Code, it hereby is ORDERED that the
CITY OF LIVERMORE, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Making unit modification determinations (whether granting or denying a
petition for such), pursuant to its EERR section 7, without providing written notice of its
findings and the evidence upon which such findings are made.
2. 	Maintaining its EERR section 8, which requires a proof of 60% support
among affected employees prior to granting a unit modification petition.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Conduct an investigation and/or make written findings upon an
investigation of the unit modification petition filed by Blaine Drewes et al., on November 19,
2013.
2. 	Strike the phrase, “by submitting to the City manager a petition
accompanied by proof of employee approval of the proposed modification signed by not less
than 60 % of those employees who, if the proposed modification should be granted, would be
moved from one representation unit to another,” from its EERR section 8.A.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the ALE-represented bargaining unit
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the CITY OF LIVERMORE, 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.
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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
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on BLAINE DREWES.
Right to Appeal
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 Public
Employment Relations Board (PERB or 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
E-FILE: PERBe-file.Appeals@perb.ca.gov
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 or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 32135, subdivision (d),
provided the filing party also places the original, together with the required number of copies and
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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, 32091 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 on a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140, and
32135, subd. (c).)
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