San Diego Metropolitan Transit System (PERB 2667P)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN DIEGO METROPOLITAN TRANSIT 	SMCS Case No. 17-3-137
SYSTEM,
Employer, 	Case No. LA-PC-16-M1
and 	PERB Decision No. 2667-P
TRANSIT ELECTROMECHANICS UNION, 	September 6, 2019
Petitioner,
and
PUBLIC TRANSIT EMPLOYEES
ASSOCIATION,
Exclusive Representative.
Appearances: Paul, Plevin, Sullivan & Connaughton by J. Rod Betts, Attorney, for San Diego
Metropolitan Transit System; Juan G. Gonzalez, President, for Transit Electromechanics
Union.
Before Banks, Shiners, and Paulson, Members.
DECISION
SHINERS, Member: This is the latest in a series of appeals to the Public Employment
Relations Board (PERB or Board) arising out of efforts by various employee organizations to
represent employees of the light rail component of the San Diego Metropolitan Transit System
(System).2 The Transit Electromechanics Union (TEU) initiated this case by filing a petition
1 As a result of programming changes, in future cases involving transit employers
covered by the Public Utilities Code, PERB will designate the case numbers using the letter
“P” in place of the letter “M”.
2 The System’s light rail is operated by its subsidiary, San Diego Trolley, Incorporated,
colloquially known as “the Trolley.” The System’s other subsidiary, San Diego Transit,
operates the System’s bus lines.

to represent certain maintenance employees who currently are part of the Trolley’s general
bargaining unit. Following an evidentiary hearing, the hearing officer found the petitioned-for
employees to be skilled craft workers, concluded that a multi-craft bargaining unit composed
of those employees is appropriate, and ordered an election in the new unit. Based on our
review of the hearing officer’s proposed decision, the entire record, and relevant legal authority
in light of the parties’ submissions, we conclude severance is not appropriate. Accordingly, we
reverse the proposed decision and deny TEU’s petition.
PROCEDURAL HISTORY
TEU’s Petition
On October 2, 2017, TEU filed with the State Mediation and Conciliation Service
(SMCS) a petition to sever the following classifications from the Trolley’s general bargaining
unit:
Light Rail Vehicle (LRV) Electromechanic
LRV Lineman
LRV Assistant Lineman
Maintenance of Way (MOW) Electromechanic
MOW Linemen
MOW Assistant Linemen
Track Serviceperson
Revenue Maintainer I
Revenue Maintainer II
Revenue Maintainer III
The petition describes the proposed unit as “[a] unit of skilled laborers specializing in electro-
mechanical trades which require college coursework and completion of an apprenticeship.”
The petition indicates that approximately 128 employees work in the petitioned-for
classifications. All petitioned-for classifications are in the Maintenance Department except for
Revenue Maintainers, who are in the Administration Department. At the time TEU filed its
2

________________________
petition, the general bargaining unit was represented by the Public Transit Employees
Association (PTEA).
On October 6, 2017, SMCS rejected TEU’s petition on the ground that relevant law did
not allow the decertification of a portion of an existing bargaining unit. On or about
October 12, 2017, TEU filed with the Board an appeal of SMCS’s determination. On May 15,
2018,3 the Board issued a decision reversing SMCS’s determination and remanding the matter
to SMCS for further processing, including determining whether the petitioned-for unit is
appropriate. (San Diego Metropolitan Transit System (2018) PERB Order No. Ad-464-M,
pp. 4-8.)
On May 31, SMCS informed the parties that TEU had provided at least thirty percent
employee support for its petition. SMCS then assigned a hearing officer to hold a hearing on
the questions presented by the petition, including whether the proposed unit of skilled laborers
is an appropriate unit.
SMART’s Petition
Meanwhile, on January 22, the International Association of Sheet Metal, Air, Rail, and
Transportation Workers (SMART) filed a petition to decertify PTEA and become the exclusive
representative of the general bargaining unit. PTEA challenged SMART’s petition on the basis
that it was barred because it was filed during a one-month extension to the PTEA-Trolley
collective bargaining agreement (CBA).4
On March 2, the System filed a motion to consolidate SMART’s petition with TEU’s
petition. SMCS denied the motion because TEU’s petition was pending on appeal before the
3 All dates refer to the year 2018 unless otherwise noted.
4 The CBA was effective through December 31, 2017. On that date, PTEA and the
Trolley extended the CBA through January 31.
3

Board. Further, SMART’s petition was still awaiting SMCS’s determination as to whether
SMART’s petition was barred by the PTEA-Trolley CBA.
On March 19, SMCS determined that SMART’s petition was not barred by the CBA
and that an election was required. PTEA filed an appeal with the Board, again asserting that
SMART’s petition was barred by the one-month extension to the PTEA-Trolley CBA. On
June 12, PERB issued a decision finding that the one-month extension did not bar SMART’s
petition. (San Diego Metropolitan Transit System (2018) PERB Order No. Ad-465-M,
pp. 3-7.)
On or about June 21 and 22, PTEA, the System, TEU and SMART informed SMCS
that they all agreed the election on SMART’s petition to decertify PTEA as the exclusive
representative of the general bargaining unit should be deferred until after TEU’s petition to
sever a proposed unit of skilled laborers was decided. On September 4, SMART withdrew its
agreement to defer the election after the System allegedly disclosed as part of a pre-hearing
motion in this case the proof of support SMART had submitted with its January 22
decertification petition.
The hearing officer held an evidentiary hearing on TEU’s petition on September 5
and 6. On October 4, TEU filed a motion to amend its petition to “represent all classifications
in a single craft unit, separate craft units, or any combination that the hearing officer finds to
be appropriate.” On October 23, SMCS issued a letter to all parties, and to SMART, providing
each with the opportunity to file position statements in response to TEU’s motion to amend.
On November 9, the parties filed post-hearing briefs addressing TEU’s original petition and
motion to amend requesting alternate configurations. SMART did not file a post-hearing brief
or provide a position statement regarding TEU’s motion to amend.
4

Election for the General Unit
In the meantime, after SMART’s September 4 withdrawal of its agreement to defer the
decertification election in the general unit, SMCS informed the parties that the election would
proceed on October 15. On or about October 10, PTEA filed in San Diego Superior Court an
ex parte application for a temporary restraining order halting the election. On October 11, the
Court denied PTEA’s application. SMCS proceeded with the secret mail ballot election on
October 15. SMCS tallied the ballots on November 7. Representatives of PTEA, SMART,
TEU, and the System observed the tally, where it was determined that SMART had majority
support of the general bargaining unit. No party filed a challenge and the election results
became final on November 19.
Hearing Officer’s Proposed Decision
The hearing officer issued her proposed decision on April 22, 2019. First, she
concluded the classifications listed in TEU’s petition are composed of skilled craft workers as
defined in National Labor Relations Board (NLRB) case law. Then, applying the six-factor
test from Mallinckrodt Chemical Works (1966) 162 NLRB 387 (Mallinckrodt), the hearing
officer found the factors weighed in favor of severing the petitioned-for classifications from
the general bargaining unit and placing them into one multi-craft bargaining unit. Finding such
a unit appropriate, the hearing officer declined to consider TEU’s post-hearing motion to
establish alternate separate craft units. The hearing officer ordered an election to determine
whether employees in the newly-created craft unit desire representation by TEU or SMART.
FACTUAL BACKGROUND
The System provides both bus and trolley service in San Diego County. Trolley service
began in 1981. Today, the Trolley operates three lines that connect downtown San Diego with
5

San Ysidro, El Cajon, and Santee. There are approximately 55 Trolley stations. The
equipment on each of the three lines is different.
In 1984, the International Brotherhood of Electrical Workers (IBEW) organized Trolley
employees and began representing the general bargaining unit, with the first IBEW-Trolley
CBA taking effect in 1986. IBEW represented the general bargaining unit until it was
decertified by PTEA in 2016. The general bargaining unit consists of approximately 365
employees in the Transportation, Maintenance, and Administration departments. The job
classifications in the general bargaining unit are:
LRV Electromechanic
LRV Lineman
LRV Assistant Lineman
MOW Electromechanic
MOW Linemen
MOW Assistant Linemen
Track Serviceperson
Revenue Maintainer I
Revenue Maintainer II
Revenue Maintainer III
Train Operator
Revenue Collector
Revenue Processor
Ridership Surveyor
Serviceperson
Storekeeper
Data Entry Clerk
Station Attendant
Clerk Typist
TEU’s petition seeks to sever approximately 128 skilled laborers in the LRV, MOW,
Track Serviceperson and Revenue Maintainer classifications.
The Classifications in TEU’s Petition
All of the classifications in TEU’s proposed unit of skilled laborers clock in and out at
buildings at 12th and Imperial Streets in San Diego. All except for the Track Servicepersons
6

go through an apprenticeship program. LRV and Revenue Maintainers share the same pay
scale. Trolley Chief Operating Officer Wayne Terry (Terry) testified that skilled laborers
spend “a hundred percent of their time working in those areas associated with the discipline
they’re hired to perform in.” He also testified that the groups are interdependent because each
has to function appropriately to provide safe and reliable trolley service.
LRV
LRV Electromechanics, Linemen, and Assistant Linemen are responsible for inspecting
and repairing trains. LRV employees work at 12th and Imperial, Facility/Building “C,” and
only leave the facility in the event there is a failure on the line and they have to go retrieve a
trolley car. The majority of work is done at night when most of the cars are out of service.
There are multiple, and perhaps as many as four, overlapping shifts.
LRV employees complete a four-year apprenticeship program and on-the-job training.
They work almost exclusively with other LRV employees. Train Operators may tell LRV
employees what went wrong with a car, but the LRV personnel perform their own assessment.
The department has an LRV Superintendent and several LRV supervisors. Historically, the
LRV Superintendent and LRV supervisors have been former LRV Electromechanics.
MOW and Track Servicepersons
The MOW Electromechanics, Linemen and Assistant Linemen are responsible for
inspecting and maintaining in excess of 260 wayside signals; more than 200 hundred track
switches and associated circuitry; approach circuits, bells, lights, and gates at 87 grade
crossings; and 61 substations that provide traction power to the overhead catenary system.
Every month MOW employees clean the substations by shutting them down completely, and
breaking down, cleaning, and inspecting all the parts and emergency functions. MOW
7

employees perform inspections on monthly, quarterly, and yearly cycles. The inspections are
required in order to maintain certifications and comply with rules of the Federal Railroad
Administration and the California Public Utilities Commission. MOW employees may also be
held liable, fined, or jailed for violations.
MOW employees work with “lethal” voltage: the AC power comes in from the provider
and the system “rectif[ies]” it to 700 volts of DC power. MOW employees cross-train in all
aspects of MOW, which includes low-voltage electrician work for stations up to 480 volts,
high-voltage electrician work for substations up to 12,000 volts, and high-voltage lineman for
the overhead catenary system bucket work with up to 700 volts of direct current.
MOW employees perform work while the trains are in operation. They maintain a
seven and fifteen minute headway without obstructing service. When there is a major
malfunction, the MOW employees are called first. They secure and contain power, and they
perform the repair if they are able. They either change the wiring on the overhead catenary
system or shut down “the main.” When required, the Trolley contracts with outside provider(s)
to perform work. MOW employees also service all the lighting in the stations and parking lots
on the system, and they may also be called out for elevator emergency calls.
MOW employees complete a four to five year course of education and an eight-
thousand hour apprenticeship program. They progress from Assistant Lineman, to Lineman, to
Electromechanic. Unlike other departments, MOW employees are required to have multiple
certificates such as a commercial driver’s license. MOW employees operate lift and bucket
trucks. One MOW employee has a crane certificate and operates a crane that can lift stranded
vehicles off the tracks. MOW employees must maintain their qualifications and skills, and
8

they are continually required to learn new equipment. They exercise independent judgment
and have minimal supervision.
Although MOW classifications do not work with other departments, they may respond
to requests from supervisors from other departments like Facilities if there are, for example,
problems with lighting, problems with machines, or sometimes when there is a need to restore
power at trolley stations. MOW employees may remove something to enable a repair, and
afterward, will return to restore power.
MOW employees sometimes receive reports from Train Operators about problematic
signals or track issues but they usually do not discuss work with Train Operators. Neither
Train Operators nor Facilities Department employees assist the MOW employees. If there is a
problem with signals, Central Control is contacted and in turn contacts the supervisor of the
relevant department, who assigns the work.
Track Servicepersons maintain 108 miles of track and all of their work is on the right of
way, much of it at night. For example, they may work on a tie changeout or various tasks
associated with keeping the rail in a state of good repair. When Track Servicepersons receive a
Class B license, they can train on operating the Ballast Regulator and the Track Aligner. They
earn more for operating such equipment, as well as an Excavator, Low-railer, or Bobcat.
Track Servicepersons interact with MOW employees daily and there is “one hundred
percent integration.” MOW personnel and Track Servicepersons clock-in at 12th and Imperial,
“A” Building. There is very little interaction between LRV employees and MOW/Track
Servicepersons because MOW employees and Track Servicepersons work out on the line while
LRV employees work at 12th and Imperial.
9

________________________
There are 29 employees in the MOW classifications and an additional 14 Track
Servicepersons. MOW employees and Track Servicepersons each have their own supervisors,
but there is one superintendent responsible for MOW classifications and Track Servicepersons.
MOW supervisors usually are former MOW Electromechanics.
Revenue Maintainers
Revenue Maintainer I, II, and III classifications are electricians that complete a four
semester apprenticeship and on-the-job training program.5 They work in the field to maintain
and repair 133 ticket machines and card readers at 56 stations. They deal with “Cat5” and
fiber optic cables, and install hard drives when they crash. They also help patrons as
appropriate. Revenue Maintainers sometimes work in the laboratory in Facility B to solve
problems with ticket vending machines. Their supervisors are former Revenue Maintainers.
They have no contact with Train Operators and do not work with LRV, MOW, or Track
employees.
Collective Bargaining History
During the decades when IBEW represented the general bargaining unit, IBEW and the
Trolley continually reached collective bargaining agreements. When the Trolley and IBEW
negotiated, they would schedule sessions to focus on a particular department and bring in
Maintenance employees to advocate for their interests. Sometimes there would be differences
among classifications. For example, in 2007, the CBA provided a pay increase every six
months for LRV, MOW, and Revenue employees, while Train Operators received yearly
increases. The CBA also provided additional pay for Track Servicepersons working with
5 Camille Caufield (Caufield) testified that she started at the Trolley as an MOW
Lineman 19 years ago but has been a Revenue Maintainer for six years. As a result, her
apprenticeship was different: she completed an IBEW Local 569 electrician program of ten
semesters and five years of on-the-job training.
10

certain equipment, as well as a separate work rule for special maintenance assignments in the
LRV Department.
System Human Resources and Labor Relations Director Jeffrey Stumbo (Stumbo)
testified that IBEW, in negotiating for the general bargaining unit, advocated for all the
different classifications, not just Train Operators. IBEW’s bargaining team included a
representative from each department, and an MOW Electromechanic and LRV
Electromechanic signed the 2007 CBA on behalf of IBEW. MOW Electromechanic, Don
Estep (Estep), was also an IBEW steward.
The last IBEW–Trolley CBA expired on December 21, 2014, and, although IBEW and
the Trolley reached tentative agreements for a successor CBA, the membership rejected the
tentative agreements on five different occasions during 2015 and 2016.
During this period, bargaining unit members organized PTEA. LRV Electromechanics
Juan Gonzalez (Gonzalez) and Joshua Stolz (Stolz) were the president and vice president of
PTEA at its inception. Gonzalez drafted the PTEA Bylaws. PTEA filed a decertification
petition which proceeded to an election in April 2016. PTEA won the election but IBEW filed
a challenge, which the Board denied in September 2016. (San Diego Metropolitan Transit
System (2016) PERB Order No. Ad-441-M, p. 5.)
After IBEW’s election challenge was dismissed, PTEA and the System began
bargaining over the initial PTEA–Trolley CBA. Gonzalez testified that in negotiations he tried
to get rid of a two-tier system that created lower wages for Facilities employees. He also tried
to obtain for LRV employees a boot allowance, tool allowance, and a 4/10 work schedule.
After arriving at impasse, the System and PTEA reached agreement in April 2017 with
the assistance of a mediator from SMCS. The CBA, effective January 19, 2017 to
11

December 31, 2017, provided a 9.75 percent pay increase and a $1,000 lump sum payment for
employees hired before a certain date, which included most of the employees in the bargaining
unit. The terms were similar to the tentative agreement(s) between IBEW and the System,
which the membership had rejected five times: a 6.5 percent pay increase and an additional
3.25 percent raise, plus a $425 bonus. Gonzalez and Stolz, as PTEA president and vice
president, along with PTEA’s treasurer, secretary, and member at large, signed the PTEA–
Trolley CBA.
In May 2017, Gonzalez was voted out of office as PTEA president. Nonetheless, PTEA
appointed him as the representative for LRV employees. Gonzalez resigned from that position
on September 19, and filed the instant petition on October 2.
In November 2017, PTEA began negotiating with the System for a second contract.
After agreeing on December 31, 2017, to extend their initial CBA for one month, PTEA and
the System reached a tentative agreement on January 8. The members ratified it later that
month. The second PTEA–Trolley CBA was effective from February 1, 2018 through
December 31, 2020. It provided a 2.75 percent wage increase each year, on April 1 of 2018,
2019, and 2020.
Stumbo testified that relations and negotiations have been stable with the System’s Bus
Operators bargaining unit and with its Bus Maintenance bargaining unit. Stumbo also testified
that IBEW represents flaggers at the Trolley. There is also a unit of Code Compliance
Inspectors, represented by the Transit Enforcement Officers Association, that apparently
perform work for both bus and trolley operations. Stumbo testified that it is “very hard” to
negotiate with five units.
12

________________________
Skilled Laborers’ Representation by PTEA and IBEW
From 2003 to 2016,6 the relationship between the System and IBEW was “excellent”
and, though grievances were filed, they did not result in arbitration. Stumbo and Terry
testified that during this time there were no labor disturbances, strikes, or disruptions in trolley
service due to labor activity. However, in 2015 approximately a dozen LRV employees called
in sick on the same day. Trolley service was not disrupted. The Trolley disciplined employees
who had called in sick. One employee challenged the discipline and it proceeded to arbitration
where the arbitrator sustained the discipline imposed. The Trolley did not believe IBEW
instigated the sick calls, and Stumbo did not believe Gonzalez was involved either.
Stumbo testified that relations had been “very smooth” since PTEA began representing
the unit, and many things were informally resolved at labor-management committee meetings.
However, despite outreach from PTEA representatives, nobody from the LRV Department had
been attending the labor-management committee meetings. Stumbo testified that “[i]t’s
definitely more stable with one union” than to have different groups as proposed by TEU.
Terry stated that “from my perspective, it has been very functional as one unit.”
In contrast, employees in the proposed unit testified generally about their dissatisfaction
with IBEW and PTEA. MOW Electromechanic Bernardo Manucal (Manucal) testified that
PTEA did not do an effective job representing him but did not provide specifics. And while
Manucal testified that he felt adequately represented by IBEW because they were an
established union, he also testified that IBEW “failed to stay with us.”
Caufield testified that the IBEW Local also represented a large bargaining unit of
employees of San Diego Gas and Electric (SDG&E) that outnumbered the Trolley bargaining
6 Stumbo commenced employment with the System in 2003.
13

unit. The IBEW Local executive board was made up exclusively of SDG&E employees and
did not include any employees from the Trolley. Caufield’s dissatisfaction with PTEA
stemmed from statements she had heard about unprofessional behavior by PTEA Board
members. She also testified that PTEA lacked experience and that she would have preferred
IBEW to stay because it was international and experienced.
Joseph Dieterle (Dieterle), a MOW Electromechanic with 19 years of experience,
testified without specifics that neither IBEW nor PTEA addressed MOW employees’ concerns
and their representation was inadequate. Dieterle testified that he would have preferred to stay
with IBEW. He also testified that PTEA told MOW employees that PTEA did not need their
support because they already had the numbers to decertify IBEW. Dieterle asked IBEW if the
skilled laborers could be represented separately from PTEA and an IBEW field representative
“said that they didn’t see any way that we could actually sever or petition to get out of the one
unit, PTEA.” He also testified that it was common sense that a group of 29 MOW employees
would have more bargaining power than a group that has 365 employees because the MOW
employees have five years of education, work with high voltages, and have a very important
job.
Stolz testified that if he needs something he goes straight to a supervisor. For example,
instead of going to the union for assistance, Stolz has discussed a 4/10 schedule directly with
LRV Superintendent Andy Goddard (Goddard) and Assistant Supervisor Mel Bickham, who
said they would “review it and see how it can be implemented.”
Witnesses working in LRV, MOW, and Revenue classifications also testified about
their dissatisfaction at being represented in the general bargaining unit. One common
complaint was that there are more than 100 Train Operators. According to the witnesses, Train
14

Operators do not necessarily look at their job from a career perspective because many work
only part-time for as many as eight years and they may lack interest in long-term medical and
retirement benefits. The LRV, MOW, and Revenue employees, in contrast, invest up to five
years in their apprenticeships and on-the-job training, and devote a significant amount of their
own time and hard work to become skilled in their discipline.
The Train Operators and other classifications in the general bargaining unit outnumber
the 128 skilled laborers. Manucal testified that he would rather have the voices of the skilled
workers heard instead of “the majority wins.” He did not feel he was being well represented
because the interests of his department were not being addressed by PTEA or IBEW. Stolz
testified that even as an officer in PTEA, “we didn’t really have our voice specifically heard”
because the majority of the unit was from other departments and their needs took more
precedence. Caufield testified that the skilled workers did not get some of the things they
wanted in the CBAs but the Train Operators got things like the ability to wear shorts.
Witnesses in the proposed bargaining unit testified that they should be represented in a
craft unit because of their different training and expertise as well as exposure to danger by
high-voltage and use of tools. Stolz testified that the craft employees are more alike than the
rest of the unit. Also common among the witnesses employed in the petitioned-for
classifications was a belief that they should be better compensated than unskilled
classifications because of their education and training, and that they were not compensated
comparably to similar classifications in other transit systems. These witnesses all testified that
they believe representation in a separate crafts unit would allow them to more effectively
negotiate for their interests.
15

________________________
The History and Pattern of Collective Bargaining in the Industry
The System introduced as an exhibit a chart showing the results of an informal survey
conducted by the System. Specifically, Stumbo asked Goddard to survey his peers as to which
union represented their mechanical positions and if those unions also represented the operators
and other positions. Goddard received information from Denver, St. Louis, Calgary,
Minneapolis, Baltimore, Virginia, Pittsburg, Portland, Dallas, Sacramento, Seattle, and Los
Angeles. The chart reports that: the Amalgamated Transit Union (ATU) represents both
operators and maintenance for bus and rail in seven transit systems; ATU represents operators
and IBEW represents maintenance workers at one system; ATU represents operators and
maintenance, with IBEW representing a small group of rail maintenance or electrical workers
at two transit systems; SMART represents Train Operators and ATU represents maintenance
workers at one system; and ATU represents both operators and maintenance for bus operations
at one system. The System’s exhibit does not specify whether ATU—at the systems where it
represents both operators and maintenance—represents operators and maintenance employees
in combined or separate bargaining units. Stumbo testified that in reviewing the results as
shown in the exhibit, it is much more common to have one union represent both operators and
maintainers, just as IBEW, then PTEA, had represented the Trolley’s general bargaining unit.7
TEU’s History and Operations
TEU formed around the time Gonzalez resigned from PTEA. Around this time he
7 The hearing officer informed TEU that if it wished to present evidence contrary to that
in the System’s chart, it could do so before post-hearing briefs were filed. TEU instead
attached to its post-hearing brief a list of California Public Utilities Code transit districts with
annotations about each district’s bargaining units. The proposed decision does not explain
why this list was not considered. Nonetheless, as the list was not presented before the
evidentiary record closed nor did TEU request administrative notice be taken of the list, it was
proper for the hearing officer not to consider it. (See Oxnard Union High School District
(2018) PERB Decision No. 2617, p. 3 [administrative law judge properly declined to consider
documents attached to post-hearing brief].)
16

________________________
discussed with co-workers in the LRV Department whether to remain with PTEA, decertify
PTEA, or go a separate way in a severance. The co-workers agreed they should seek a
severance. Thirty percent of employees in the proposed unit of skilled workers signed proof of
support for severance and Gonzalez proceeded, on October 2, 2017, to file the instant petition
with SMCS under the name of TEU. Gonzalez listed himself as TEU president but there was
no official election that made him president. Gonzalez testified that he was not going to be the
president long-term and that an election for president would be held once TEU affiliated with a
larger union. Witnesses testified that they were aware TEU is not an international union and
hoped that TEU would affiliate with an international union.
DISCUSSION
The System is a transit district established by Public Utilities Code (PUC) section
120000 et seq., and its labor relations are governed by PUC sections 120500-120509. The
System’s enabling statute grants SMCS jurisdiction to investigate and resolve questions
concerning representation, including determination of appropriate bargaining units. (Pub. Util.
Code, § 120505.) In doing so, SMCS “shall be guided by relevant federal law and
administrative practice developed under the Labor Management Relations Act [(LMRA)],
1947, as amended.”8 (Ibid.) Similarly, when deciding PUC transit district representation
cases, “the Board shall apply the relevant federal law and administrative practice developed
under the Labor Management Relations Act, 1947, as amended.”9 (PERB Reg. 93080.)
8 The LMRA is codified at 29 U.S.C. section 141 et seq.
9 PERB Regulation 93025, subdivision (d) provides that a determination by the SMCS
Supervisor in a PUC transit district representation case may be appealed to the Board itself.
(San Diego Metropolitan Transit System (2018) PERB Order No. Ad-460-M, pp. 4-5.) (PERB
Regulations are codified at California Code of Regulations, title 8, section 31001 et seq.)
17

________________________
“In deciding whether federal law is ‘relevant’ to the question presented in a particular
case, PERB Regulation 93080 ‘does not demand slavish adherence to the LMRA.’” (San
Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 6, quoting Santa
Clara Valley Transp. Auth. v. Rea (2006) 140 Cal.App.4th 1303, 1319.) “Thus, whether
federal law is relevant will depend upon the particular circumstances of each case.” (San
Joaquin Regional Transit District, supra, p. 8.) “[U]nder PERB Regulation 93080, federal law
is relevant, and therefore must be applied, unless (1) the question presented is governed by an
explicit provision of the applicable transit district statute or (2) considerations unique to public
sector labor relations require a deviation from federal law.” (Ibid.)
As we noted in a prior decision concerning this case, the LMRA allows a unit of skilled
craft workers to be severed from an existing, represented unit. (San Diego Metropolitan
Transit System, supra, PERB Order No. Ad-464-M, p. 6.) The System’s enabling statute does
not mention skilled craft units. Nonetheless, both the Ralph C. Dills Act (Dills Act)10 and the
Higher Education Employer-Employee Relations Act (HEERA)11 grant skilled craft workers
the right to separate, craft-only bargaining units. (Dills Act, § 3521, subd. (b)(6); HEERA, §
3579, subd. (d).) Thus, as we implicitly recognized in San Diego Metropolitan Transit System,
supra, PERB Order No. Ad-464-M, “considerations unique to public sector labor relations” do
not foreclose the establishment of a skilled craft unit within the System. We therefore examine
whether TEU’s proposed unit of Trolley maintenance workers is an appropriate skilled craft
unit.
10 The Dills Act is codified at Government Code section 3512 et seq.
11 HEERA is codified at Government Code section 3560 et seq.
18

________________________
1. 	Skilled Craft Workers
The threshold issue in this case is whether employees in the classifications listed in
TEU’s petition are skilled craft workers. “A craft unit is one consisting of a distinct and
homogeneous group of skilled journeymen craftsmen, who, together with helpers or
apprentices, are primarily engaged in the performance of tasks which are not performed by
other employees and which require the use of substantial craft skills and specialized tools and
equipment.” (Burns and Roe Services Corp. (1994) 313 NLRB 1307, 1308, footnote omitted.)
“To be a ‘journeyman craftsman’ an individual must have a kind and degree of skill which is
normally acquired only by undergoing a substantial period of apprenticeship or comparable
training.”12 (American Potash & Chemical Corp. (1954) 107 NLRB 1418, 1423 (American
Potash).)13
In Dodge City of Wauwatosa, service technicians required training and skills that set
them apart from the rest of the service department employees “as craftsmen who appropriately
may be represented in a separate unit.” (Dodge City of Wauwatosa (1986) 282 NLRB 459,
460.) In Country Ford Trucks, Inc. v. NLRB (D.C. Cir. 2000) 229 F.3d 1184, the NLRB
12 As noted in Unit Determination for Skilled Crafts Employees of the University of
California (1983) PERB Decision No. 242a-H, the NLRB’s definition of “the term ‘skilled
crafts’ has, over the years, taken on a generic connotation to include virtually any job which
requires extensive training and experience, and possibly formal apprenticeship and even
licensure.” (Id. at pp. 9-10.) PERB, in contrast, has taken a more narrow view of “skilled
crafts” under some of the statutes it administers. (Id. at p. 9.) This narrow view is based on
statutory language defining “skilled crafts employees” as including, “but not necessarily []
limited to, employment categories such as carpenters, plumbers, electricians, painters, and
operating engineers.” (Id. at p. 10, internal quotations omitted.) In the absence of similar
narrowing language in the System’s enabling statute, coupled with the statute’s command to be
“guided by relevant federal law,” we follow the NLRB’s broader definition of skilled craft
workers.
13 Although Mallinckrodt overruled certain aspects of American Potash, it approved
that decision’s definition of a “true craft unit.” (Metropolitan Opera Assn. (1999) 327 NLRB
740, 754.)
19

determined that a combined unit of service technicians and lube workers was appropriate
because the lube workers engaged in mechanical work alongside the service technicians. (Id.
at pp. 1189-1190 [employer failed to identify any evidence that other employees, such as its
service advisors, provided equivalent assistance to the service technicians].) Although the
service technicians and lube workers were part of the employer’s overall business of retail
sales and service of new and used cars, they were properly recognized in a craft unit that did
not include all service employees. (Ibid.)
At the Trolley, LRV, MOW, Track Servicepersons, and Revenue Maintenance
employees each are assigned work according to craft lines, and perform work that does not
overlap with the work of employees outside their craft. There is also no cross-training among
the different crafts or between the crafts and other classifications in the general bargaining
unit. All LRV employees complete a four-year apprenticeship, MOW employees complete a
four to five year course of education and an eight-thousand hour apprenticeship program, and
Revenue Maintainers are electricians that complete a four-semester apprenticeship program
and an on-the-job training program. Therefore, each of the classifications in the proposed unit,
except for Track Servicepersons, completes an apprenticeship program. Nonetheless, because
Track Servicepersons provide assistance to MOW employees that no other employee
classification does, the work of Track Servicepersons is fully integrated with that of MOW
employees. (Country Ford Trucks, supra, 229 F.3d at pp. 1189-1190.) Considering all of the
facts, employees in the proposed bargaining unit are skilled craft workers. (Burns and Roe
Services Corp., supra, 313 NLRB at p. 1308.; Dodge City of Wauwatosa, supra, 282 NLRB at
p. 460.)
20

2. 	Severance of Proposed Bargaining Unit
Having determined that employees in the petitioned-for classifications are skilled craft
workers, we turn to whether the proposed bargaining unit composed of those classifications
should be severed from the Trolley’s general bargaining unit. The hearing officer concluded
severance is appropriate. For the following reasons, we disagree.
Under federal law, the determination of whether a group of skilled craft workers should
be severed from an existing bargaining unit is guided by Mallinckrodt. “Underlying such
determinations is the need to balance the interest of the employer and the total employee
complement in maintaining the industrial stability and resulting benefits of an [sic] historical
plantwide bargaining unit as against the interest of a portion of such complement in having an
opportunity to break away from the historical unit by a vote for separate representation.” (Id. at
p. 392.) The policy goal is to ensure that interests of the craft employees do not always
predominate “without affording a voice in the decision to the other employees, whose unity of
association is broken and whose collective strength is weakened by the success of the craft or
departmental group in pressing its own special interests.” (Id. at p. 396.) Mallinckrodt thus
places a “heavy burden” on the party seeking severance. (See Battelle Memorial Institute
(2016) 363 NLRB No. 119, p. 2, citing Kaiser Foundation Hosp. (1993) 312 NLRB 933, 936
[“the [NLRB] is reluctant, absent compelling circumstances, to disturb bargaining units
established by mutual consent where there has been a long history of continuous bargaining”]
& fn. 15.)
In making a craft severance determination, the following illustrative factors are
considered:
1. 	Whether or not the proposed unit consists of a distinct and
homogeneous group of skilled journeymen craftsmen
21

performing the functions of their craft on a nonrepetitive basis,
or of employees constituting a functionally distinct
department, working in trades or occupations for which a
tradition of separate representation exists.
2. 	The history of collective bargaining of the employees sought
and at the plant involved, and at other plants of the employer,
with emphasis on whether the existing patterns of bargaining
are productive of stability in labor relations, and whether such
stability will be unduly disrupted by the destruction of the
existing patterns of representation.
3. 	The extent to which the employees in the proposed unit have
established and maintained their separate identity during the
period of inclusion in a broader unit, and the extent of their
participation or lack of participation in the establishment and
maintenance of the existing pattern of representation and the
prior opportunities, if any, afforded them to obtain separate
representation.
4. 	The history and pattern of collective bargaining in the industry
involved.
5. 	The degree of integration of the employer’s production
processes, including the extent to which the continued normal
operation of the production processes is dependent upon the
performance of the assigned functions of the employees in the
proposed unit.
6. 	The qualifications of the union seeking to “carve out” a
separate unit, including that union’s experience in representing
employees like those involved in the severance action.
(Mallinckrodt, supra, 162 NLRB at p. 392.)
Subsequent case law has clarified:
There is no “hard and fast definition or an inclusive or exclusive
listing” of the factors to consider. [Citation.] Rather, unit
determination must be made only after “weighing . . . all relevant
factors on a case-by-case basis.”
(Country Ford Trucks, supra, 229 F.3d at pp. 1190-1191.) Indeed, the six Mallinckrodt factors
are “non-exclusive” and “concentrate on the bargaining unit’s history and community of
22

________________________
interests, as well as the nature of the employer’s operations.” (NLRB v. Catalytic Indus.
Maintenance Co. (5th Cir. 1992) 964 F.2d 513, 519.)
An additional factor to consider here is that “system-wide units are considered optimum
in transportation systems because of the integrated and interdependent nature of the services
they perform.” (San Joaquin Regional Transit District, supra, PERB Decision No. 2650-P,
p. 13; IBEW Local 889 v. Aubry (1996) 42 Cal.App.4th 861, 871.) Larger units are favored in
PUC transit districts “to avoid unit proliferation and employee fragmentation that would likely
impede the system’s efficiency.” (San Joaquin Regional Transit District, supra, PERB
Decision No. 2650-P, p. 13; Aubry, supra, 42 Cal.App.4th at p. 871.) The Mallinckrodt factors
appear to be consistent with this preference for larger units.14 (See San Francisco Bay Area
Rapid Transit District (2002) DIR Final Decision, adopting interim decision and order at
pp. 6-7 [including Mallinckrodt factors among factors to be considered when determining
whether to sever a proposed unit of electronic technicians from a system-wide maintenance
unit;15 State of California (Department of Personnel Administration) (1993) PERB Decision
No. 1025-S, adopting proposed decision at pp. 30-32 [suggesting that the Mallinckrodt factors
are consistent with avoiding proliferation of units but declining to apply them because there
was no “generally accepted practice of pharmacists functioning in their own collective
bargaining units”].) Moreover, public employment relations boards and commissions in other
14 “[C]ommentators have indicated that the Mallinckrodt standard usually results in a
denial of craft severance” in favor of preserving an existing bargaining unit. (1 Higgins,
Developing Labor Law (6th ed. 2012) pp. 710-711, footnote omitted; Pawlenko, Reevaluating
Inter-Union Competition: A Proposal To Resurrect Rival Unionism (2006) 8 U. Pa. J. Lab. &
Empl. L. 651, 653.)
15 Prior to July 1, 2012, SMCS transit district unit determinations could be appealed to
the Director of the Department of Industrial Relations (DIR). (San Joaquin Regional Transit
District, supra, PERB Decision No. 2650-P, p. 6.)
23

________________________
states, applying state statutes directing the agency to avoid excessive fragmentation of
bargaining units, have adopted Mallinckrodt as the appropriate standard in craft severance
cases. (E.g., State of Alaska, ALRA Decision No. 270, 2004 WL 5542781, p. 12 [Alaska
Labor Relations Agency]; Monroe School District, PECB Decision 5283, 1995 WL 853488,
p. 5 [Washington Public Employment Relations Commission]; Lansing Community College,
1991 MERC Lab Op 613, 1991 WL 11748911 [Michigan Employment Relations
Commission].)
We nonetheless decline to adopt the Mallinckrodt standard wholesale because
“considerations unique to public sector labor relations” in California require a modification of
the factors. (San Joaquin Regional Transit District, supra, PERB Decision No. 2650-P, p. 8.)
Specifically, the sixth Mallinckrodt factor is inconsistent with employees’ right “to bargain
collectively through representatives of their own choosing,” as clearly stated by the governing
PUC section. (Pub. Util. Code, § 120500, emphasis added.) Indeed, California’s public sector
labor relations statutes consistently recognize employees’ right to a representative of their own
choosing. (See, e.g., Dills Act, § 3512; HEERA, § 3565; Educational Employment Relations
Act (EERA),16 § 3543, subd. (a).) Notably, the severance standards under these other statutes
do not incorporate considerations comparable to Mallinckrodt’s final factor, i.e., the
qualifications and experience of the petitioning organization. (See, e.g. State of California
(Department of Personnel Administration) (1990) PERB Decision No. 794-S, p. 7 [severance
based on showing new unit is more appropriate than existing unit]; HEERA, § 3579 [setting
forth specific factors for unit determination, and providing presumptively appropriate single
skilled craft unit]; EERA, § 3545 [unit determinations based on community of interest and
16 EERA is codified at Government Code section 3540 et seq.
24

________________________
efficient operations of school district].) In light of employees’ statutory right to decide for
themselves the organization best qualified to represent them, we see no compelling reason to
substitute the Board’s judgment regarding the qualifications of a union for that of employees
seeking to create a skilled craft unit. We accordingly decline to adopt the sixth Mallinckrodt
factor in deciding whether craft unit severance is appropriate under the PUC transit district
enabling acts. However, nothing in the landscape of California public sector labor relations
counsels against applying the remaining Mallinckrodt factors to TEU’s craft severance
petition, and we now turn to that analysis.
a. 	Factor 1: Character of Proposed Unit
The first Mallinckrodt factor examines whether “the proposed unit consists of a distinct
and homogenous group of skilled journeymen craftsmen performing the functions of their craft
on a nonrepetitive basis, . . . working in trades or occupations for which a tradition of separate
representation exists.”17 (Mallinckrodt, supra, 162 NLRB at p. 392.) As found above,
employees in the proposed unit are skilled craft workers. Additionally, although they perform
routine maintenance on the System’s rail cars, track, fare machines, and electrical systems,
they also perform repairs on an as-needed basis, using independent judgment to fix the broken
item. The proposed unit is not, however, “a distinct and homogenous group” but a collection
of three such groups: LRV Electromechanics, MOW Electromechanics/Track Servicepersons,
and Revenue Maintainers. Nonetheless, given the preference in California’s public sector for
multi-craft bargaining units, the inclusion of three distinct craft groups in the proposed unit
does not bar severance. (See, e.g., HEERA, § 3579, subd. (d) [a skilled craft unit “shall
17 Because TEU is not seeking to sever a departmental unit, we need not address the
alternative basis for satisfying this factor, i.e., whether the petitioned-for “employees
constitut[e] a functionally distinct department.” (Mallinckrodt, supra, 162 NLRB at p. 397.)
25

________________________
include not less than all skilled crafts employees at a campus”].) Consequently, this factor
weighs in favor of severance.
b. 	Factor 2: History of Collective Bargaining
The second Mallinckrodt factor examines the history of collective bargaining of the
employees at issue and the employer as a whole, “with emphasis on whether the existing patterns
of bargaining are productive of stability in labor relations, and whether such stability will be
unduly disrupted by the destruction of the existing patterns of representation.” (Mallinckrodt,
supra, 162 NLRB at p. 392.) Historically, the NLRB has given this factor substantial weight
and typically will not disturb “a long history of continuous bargaining” with the existing unit.
(Kaiser Foundation Hosp., supra, 312 NLRB at p. 936; Metropolitan Opera Assn., supra,
327 NLRB at p. 740; see 1 Higgins, Developing Labor Law, supra, p. 712 [“The Board’s
reluctance to disrupt an established stable bargaining relationship will generally prevail over a
claim that a separate craft unit is entitled to different representation.”].)18 As an example, in
Kaiser Foundation Hospitals, supra, the NLRB denied a craft severance petition where the
employer’s bargaining relationship with the existing unit had been “predominately stable” for
over 40 years, with only two strikes during that time. (Id. at pp. 935-936.)
Stumbo and Terry testified, without contradiction, that from at least 2003 until 2016 the
System’s labor relations with IBEW were “excellent” and there were no labor disturbances,
strikes, or disruptions in trolley service due to labor activity. The only apparent work action
during this time—one day in 2015 when a dozen LRV employees called in sick—does not
appear to have been initiated or condoned by IBEW. IBEW and the Trolley were parties to
18 PERB takes a similarly restrictive approach in severance cases under other statutes it
administers. (Los Rios Community College District (2018) PERB Decision No. 2587, p. 4;
Livermore Valley Joint Unified School District (1981) PERB Decision No. 165, p. 6.)
26

________________________
multiple successive CBAs. Stumbo testified that during PTEA’s representation of the unit,
things have been very smooth and many issues are resolved informally at labor-management
committee meetings. PTEA and the Trolley successfully negotiated two CBAs. From this
undisputed evidence, we find that a stable bargaining relationship exists between the general
bargaining unit and the Trolley.
The hearing officer found, to the contrary, that the bargaining relationship is no longer
stable because there have been two successful decertifications in the general unit in the past
three years. But a recent change in the bargaining representative does not necessarily
destabilize the existing relationship between the bargaining unit and the employer. (See
Battelle Memorial Institute, supra, 363 NLRB No. 119, pp. 15-16 [finding stable bargaining
history despite union’s disaffiliation from umbrella crafts organization].) Rather, for purposes
of determining whether severance is warranted, there must be some showing that these
decertifications resulted not from a generalized dissatisfaction with the incumbent union, but
from dissatisfaction among the skilled craft employees specifically. Thus, the question
becomes whether the representative of the existing unit has failed to adequately represent the
interests of the employees who seek to sever from the unit. (Kaiser Foundation Hosp., supra,
312 NLRB at p. 935; Union Carbide Corp. (1973) 205 NLRB 794, 796.)19
The evidence does not show that IBEW or PTEA failed to adequately represent the
interests of employees in the proposed unit. When the Trolley and IBEW negotiated, some
bargaining sessions were devoted to particular departments and Maintenance employees would
attend to advocate for their interests. In the 2007 CBA, IBEW was able to secure a pay
19 This also is an important consideration in severance cases under other PERB-
administered statutes. (Los Rios Community College District, supra, PERB Decision
No. 2587, p. 6; State of California (2011) PERB Decision No. 2178-S, pp. 5-6.)
27

increase every six months for LRV, MOW, and Revenue employees, while Train Operators
received yearly increases. The CBA also provided additional pay for Track Servicepersons
working with certain equipment, as well as a separate work rule for special maintenance
assignments in the LRV Department.
Most of the testimony about IBEW and PTEA not representing the interests of the
employees in the proposed unit was general and conclusory. As for specifics, Stoltz testified
that IBEW and PTEA sought a night shift differential and boot allowance for LRV Department
employees but were unable to secure them in negotiations. But the failure to achieve a
bargaining goal on behalf of certain employees does not mean the union failed to adequately
represent them. (State of California (Department of Personnel Administration), supra, PERB
Decision No. 1025-S, adopting proposed decision at pp. 16-17.) Notwithstanding TEU
witnesses’ beliefs to the contrary, there is no evidence in the record showing that either union
disregarded the petitioned-for employees’ interests.
Furthermore, inadequate representation is unlikely to be found where employees in the
proposed craft unit have participated in internal union affairs and in contract negotiations as
part of the existing unit. (La-Z-Boy Chair Co. (1978) 235 NLRB 77, 78; Bendix Corp. (1977)
227 NLRB 1534, 1537.) Here, LRV Electromechanics Gonzalez, as PTEA president, and
Stoltz, as PTEA vice-president, participated in negotiations for the first PTEA-Trolley CBA,
and both signed the final agreement. Stoltz had also served as an IBEW steward. While
IBEW was the exclusive representative, each Trolley department had a representative on the
bargaining team: (1) a Revenue Maintainer, Roberta Montijo, signed the 2013 CBA on behalf
of IBEW; (2) an MOW Electromechanic and LRV Electromechanic signed the 2007 CBA on
behalf of IBEW; and (3) MOW Electromechanic Estep was also an IBEW steward. Thus,
28

employees in the proposed unit actively participated in negotiations and union affairs as part of
the general unit.
In the absence of any evidence establishing that petitioned-for employees’ interests
have been disregarded by their exclusive representatives, or that dissatisfaction within their
ranks motivated the successive decertifications, this factor weighs against severance.
c. 	Factor 3: Separate Identity of Employees in Proposed Unit
The third Mallinckrodt factor examines whether the petitioned-for employees have
maintained a separate identity within the larger unit, and the extent of their participation in
establishing and maintaining the existing representational structure. (Mallinckrodt, supra,
162 NLRB at p. 392.) This factor includes consideration of the similarity of terms and
conditions of employment between the proposed unit and the existing unit. (Battelle Memorial
Institute, supra, 363 NLRB No. 119, at pp. 16-17.) Transfers and interchange between
positions in the proposed unit and positions outside the proposed unit are also relevant. (Ibid.)
Employees in the petitioned-for classifications have significantly higher wages than
other classifications in the general bargaining unit. Track Servicepersons receive additional
pay when operating certain equipment, while LRV Electromechanics have unique work rules
for special assignments. In the two PTEA CBAs, however, the petitioned-for classifications
received the same percentage salary increases as other unit classifications, and most other
terms and conditions of employment are uniform across the entire unit. There is no
interchange between employees in the proposed unit and other Trolley employees. Employees
29

________________________
in the petitioned-for classifications typically are not promoted or transferred from other
classifications and tend to stay in their craft for the duration of their career.20
The participation of petitioned-for employees in general unit representation matters, as
discussed above, indicates they have not sought to maintain a separate identity during their
inclusion in the broader unit. (Kaiser Foundation Hosp., supra, 312 NLRB at p. 936.) Yet the
absence of any interchange with classifications outside the proposed unit indicates that the
employees in the petitioned-for unit maintain some semblance of separate identity. Similarly,
the petitioned-for employees and the employees in the existing bargaining unit share both
similar and dissimilar terms and conditions of employment. On the record before us, this
factor is inconclusive as to whether severance is warranted.
d. 	Factor 4: History and Pattern of Collective Bargaining in the Industry
The fourth Mallinckrodt factor examines “[t]he history and pattern of collective
bargaining in the industry involved.” (Mallinckrodt, supra, 162 NLRB at p. 392.) The only
evidence in the record on this factor is the System’s admittedly informal poll of other public
transit systems. As the hearing officer correctly noted, there is no indication this sample is
reliably indicative of the pattern of bargaining units in the transit industry. Moreover, the chart
summarizing the results of the System’s informal poll does not clearly indicate whether a
“maintenance” unit consists of skilled and unskilled workers, or only skilled craft workers.21
20 TEU witness Caufield appears to be an anomaly, having started at the Trolley as an
MOW Lineman, then becoming a Revenue Maintainer.
21 The chart is hearsay evidence, as it summarizes information the System obtained
from individuals who did not testify at the hearing. The regulation governing hearings
conducted by SMCS, however, does not prohibit consideration of hearsay evidence. (See
PERB Reg. 93040(a) [“The rules of evidence prevailing in courts of law or equity shall not be
controlling.”].) We thus consider the chart while taking into account its hearsay nature when
30

________________________
At most, the chart shows that in two of the thirteen listed systems IBEW represents a unit with
a small number of employees, which may constitute a craft unit; one unit is described as
“electrical workers” and the other as “rail maintenance personnel.” Because it does not
address the central inquiry of this factor for our purposes, i.e., the prevalence of skilled craft
units in the transit industry, the System’s chart has little probative value. Nonetheless, without
contrary evidence from TEU establishing such prevalence, this factor weighs against
severance.
e. 	Factor 5: Skilled Craft Workers’ Role in the Employer’s Operations
The fifth Mallinckrodt factor examines the degree to which the skilled craft workers are
part of an integrated production process. (Mallinckrodt, supra, 162 NLRB at p. 392.) This
factor focuses on “the extent to which the continued normal operation of the production
process is dependent upon the performance of the assigned functions of the employees in the
proposed unit.” (Id. at p. 397.) “Functional integration . . . involves an assessment of the
overall impact of one operation or function upon another.” (Southern California Rapid Transit
District (1993) DIR Final Decision, adopting proposed decision at p. 28.) Considerations
under this factor include whether the skilled craft workers work primarily in production areas
or in separate shops (Dow Chemical Co. (1973) 202 NLRB 17, 19), and whether the
employer’s “production process is functionally dependent upon” the work performed by the
skilled craft workers (La-Z-Boy Chair Co., supra, 235 NLRB at p. 78). Another consideration
is whether a work stoppage among the employees in the unit proposed to be severed “would
have a substantial impact on the operations” of other parts of the system. (Southwest Gas
Corp. (1972) 199 NLRB 486.)
determining how much evidentiary weight to give it. (Trustees of the California State
University (San Marcos) (2004) PERB Decision No. 1635-H, p. 6.)
31

________________________
The System argues that the petitioned-for employees perform functions integral to
trolley operations, and therefore the existing unit is like plant-wide production and
maintenance units the NLRB has declined to sever. TEU, relying primarily on pre-
Mallinckrodt NLRB decisions,22 contends that separate units of operations and maintenance
employees are common in transit districts because of “the lack of functional integration in
mass transit.” The System has the better argument, as TEU’s position is contrary to
established law and the evidence in this case.
As we noted in San Joaquin Regional Transit District, supra, PERB Decision
No. 2650-P, “system-wide units are considered optimum in transportation systems because of
the integrated and interdependent nature of the services they perform.” (Id. at p. 13.)
Although it does not involve a transit system, La-Z-Boy Chair Co., supra, 235 NLRB 77, is
instructive. There, a newly formed labor organization petitioned to sever tool-and-die makers
from an existing plant-wide production and maintenance unit. The tool-and-die makers spent
95 percent of their worktime in a tool room separate from the production floor, and only went
into the production area when necessary to sharpen or repair tools or dies. Despite their
minimal interaction with production workers, the NLRB found sufficient integration to deny
severance because “the Employer’s production process is functionally dependent upon the
work of tool-and-die employees whose primary job is to assure that new and used dies and
tools needed for production are available and in proper working order.” (Id. at p. 78.)
The evidence here shows similar functional dependence. LRV Department employees
make sure the Trolley’s vehicles are in working order. MOW employees similarly ensure the
Trolley’s electrical power and signal systems are in working order. Track Servicepersons
22 Prior to Mallinckrodt, the NLRB more readily granted craft unit severance.
(1 Higgins, Developing Labor Law, supra, p. 709.)
32

________________________
make sure the trolley tracks are in working order. And Revenue Maintainers ensure ticket
vending machines are operating properly so customers can purchase tickets to ride the Trolley.
All of these functions are integral to the Trolley’s provision of safe, reliable public transit
service. Consequently, a strike or work stoppage by employees in the proposed unit would
substantially impact the Trolley’s ability to provide such service.23 For these reasons, this
factor weighs against severance.
3. 	Conclusion
The employees in the proposed unit TEU seeks to sever from the Trolley’s general
bargaining unit are skilled craft workers as defined in NLRB case law. Application of the
NLRB’s Mallinckrodt standard against the backdrop of a preference for larger, system-wide
bargaining units in California’s public transit systems, however, leads us to conclude that
severance is not appropriate under the current circumstances.
We acknowledge the testimony of TEU’s witnesses that they would prefer to be
represented in a separate craft unit because they believe such a unit would be more favorable to
their interests. But employee preference alone is not sufficient to justify severance. (Los Rios
Community College District, supra, PERB Decision No. 2587, p. 6; see State of California,
supra, PERB Decision No. 2178-S, adopting proposed decision at p. 24 [“Feelings are not
facts, however, and the wishes of employees are just one factor for consideration; that factor
alone does not make a proposed unit more appropriate than the existing unit.”].) Rather, we
23 Stumbo acknowledged that approximately one dozen LRV employees called in sick
one day in 2015. He testified this did not disrupt or otherwise impact Trolley services. The
record, however, lacks any other specifics as to the System’s response that may have mitigated
the impact of the sick calls (e.g., whether the LRV Superintendent and supervisors provided
interim coverage, whether other LRV employees provided “on-call” coverage, etc.).
Regardless, there is no evidence showing that a strike or work stoppage by the majority of the
employees in the proposed 128-member unit would have a similarly negligible impact.
33

________________________
must determine based on the totality of the evidence presented at the hearing whether
severance of the requested unit is appropriate. Viewing the record as a whole in light of the
relevant factors, we conclude that severance of the unit sought in TEU’s petition is not
appropriate. We therefore deny TEU’s petition.24
ORDER
The Petition filed by the Transit Electromechanics Union in SMCS Case No. 17-3-137
is DENIED.
Members Banks and Paulson joined in this Decision.
24 Because we deny TEU’s petition, we need not consider the System’s arguments that
PUC section 120505 bars an election in the proposed unit prior to November 19, 2019 (one
year after SMART was certified as the exclusive representative of the general bargaining unit),
or, alternatively, prior to December 31, 2020 (the expiration date of the current CBA between
the System and SMART for the general bargaining unit).
34