County of Kern and Kern County Civil Service Commission (PERB 2975M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521,
Charging Party,
v.
COUNTY OF KERN and KERN COUNTY
CIVIL SERVICE COMMISSION,
Respondents.
CONSTITUTIONALLY MANDATED
EMPLOYEES’ UNION, LOCAL 148,
Joined Party.
Case No. LA-CE-1718-M
PERB Decision No. 2975-M
July 31, 2025
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Jon S. Ezell,
Attorneys, for Service Employees International Union Local 521; Liebert Cassidy
Whitmore by Steven M. Berliner and Nathaniel J. Price, Attorneys, for County of Kern;
Atkinson, Andelson, Loya, Ruud & Romo by Jay G. Trinnaman and Eric T. Riss,
Attorneys, for Kern County Civil Service Commission; Jacob M. Evans, Union
Representative, for Constitutionally Mandated Employees’ Union, Local 148.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Charging Party Service Employees International
Union Local 521 (SEIU) to a proposed decision of an administrative law judge (ALJ).
The dispute arose when Joined Party Constitutionally Mandated Employees’ Union,
Local 148 (CMEU) submitted a petition to Respondent County of Kern seeking to:

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sever Deputy Public Defenders from the County’s Professional Unit (Unit 2); sever
Public Defender Investigators from the County’s Technical Services Unit
(Unit 3); form a new proposed unit consisting only of these two classifications; and
become the exclusive representative of the proposed new unit. SEIU, which is the
exclusive representative of Unit 2 and Unit 3, opposes CMEU’s petition (Petition).1
The County initially referred the Petition to Respondent Kern County Civil
Service Commission, and the Commission placed the matter on the agenda for its
February 2024 meeting. The County then reversed course, concluding that its
Employer-Employee Relations Resolution (EERR) did not provide for severance. The
County therefore removed the matter from the Commission’s agenda, but then it
reversed course again and restored its original decision to refer the matter to the
Commission. When the Commission and the County processed the Petition and
moved toward holding a representation election, SEIU initiated this charge, alleging
that the County and the Commission had violated the EERR, the Meyers-Milias-Brown
Act (MMBA), the Prohibition on Public Employers Deterring or Discouraging Union
Membership (PEDD), and PERB Regulations.2
1 For the sake of brevity, in this decision we refer to Deputy Public Defenders
as “public defenders” and Public Defender Investigators as “investigators.” Moreover,
we use “investigators” to include the lowest level classification, which is Public
Defender’s Investigative Aide.
2 The MMBA is codified at Government Code section 3500 et seq. The PEDD is
codified at Government Code section 3550 et seq. PERB Regulations are codified at
California Code of Regulations, title 8, section 31001 et seq. Unless otherwise
specified, all further statutory references are to the Government Code.

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PERB’s Office of the General Counsel (OGC) issued a complaint primarily
alleging that Respondents violated or unreasonably applied the EERR, failed and
refused to bargain in good faith, interfered with protected rights, and by the same
conduct violated the PEDD. The ALJ, after twice amending the complaint and holding
a formal hearing, issued a proposed decision finding that the Commission violated the
MMBA by interfering with protected rights. However, the ALJ dismissed the
complaint’s other allegations. SEIU filed exceptions regarding the claims the ALJ
dismissed and regarding the ALJ’s proposed remedy. The County, the Commission,
and CMEU responded by urging us to affirm the proposed decision, but they filed no
exceptions of their own.
We have reviewed the record and the parties’ arguments. We conclude that
CMEU’s proposed severance is inconsistent with the MMBA and the EERR, and we
order the County to dismiss the Petition. Because that remedy sufficiently resolves the
matter, we exercise our discretion not to address the remainder of SEIU’s exceptions.
(See, e.g., The Accelerated Schools (2023) PERB Decision No. 2855, p. 3 [citing
other authority].)3
FACTUAL AND PROCEDURAL BACKGROUND
The County and the Commission are public agencies within the meaning of
MMBA section 3501(c). SEIU is a “recognized employee organization” within the
3 Because no party excepted to the violations the ALJ found, those allegations
are not before us. We express no opinion on such issues, and we incorporate the
ALJ’s corresponding remedy into our remedial order. (Hacienda La Puente Unified
School District (2024) PERB Decision No. 2930, pp. 2-3, fn. 2; Antelope Valley
Community College District (2023) PERB Decision No. 2854, p. 2, fn. 2.)

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meaning of MMBA section 3501(b), and CMEU is an “employee organization” within
the meaning of MMBA section 3501(a).
SEIU exclusively represents approximately 5,750 County workers in multiple
bargaining units, including 605 professional employees in Unit 2 and 1,360 technical
employees in Unit 3. Public defenders fall within Unit 2, while investigators fall within
Unit 3.
The County and SEIU negotiated a Memorandum of Understanding (MOU)
effective from December 14, 2021, through June 30, 2024, which covered both Unit 2
and Unit 3, among other bargaining units. During the formal hearing in this matter, the
parties were engaged in negotiations for a new MOU.
I. 	The EERR
The County adopted the EERR in 1984. EERR Section 2 includes the following
provisions that are most pertinent to this case:
“X. 	CRITERION FOR REPRESENTATION UNITS
“1. An employee organization may seek formal recognition
as the majority representative for an established or
proposed representation unit. The principal criterion which
will be used in determining an appropriate unit shall be
whether the unit proposed contains the largest feasible
group with a community of interest among such employees.
The following factors, among others, are to be considered
in making such determination:
“(a) Which unit will assure employees the fullest freedom in
the exercise of rights set forth under this resolution?
“(b) The history of employee relations: (1) in the unit;
(2) among other employees of the County; and (3) in similar
public employment.

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“(c) The effect of the unit on the efficient operation of the
County, and sound employer-employee relations.
“(d) The extent to which employees have common skills,
working conditions, job duties, or similar educational
requirements.
[¶]. . .[¶]
“XI. 	REVOCATION/DECERTIFICATION OF RECOGNITION
[¶]. . .[¶]
“The status of an organization as the recognized
representative may be contested by employees of the unit
after the initial one (1) year period, but no more than one
hundred eighty (180) or less than one hundred fifty (150)
day prior to the expiration of any MOU between a
recognized employee organization and the County.
“A petition for decertification of a recognized employee
organization in an appropriate employee unit may be
submitted by employees included in the unit. Such
decertification petition shall be submitted to the Personnel
Director, and shall be accompanied by evidence of
authorization from at least thirty percent (30%) of the
employees in the appropriate employee unit which the
petitioners request be decertified. If the employees are
requesting decertification to be followed by recognition of a
new employee organization not recognized, the information
in Article VIII(a) through (g) must also accompany the
petition. After investigation, the Personnel Director shall
refer the petition, with a recommendation to the Civil
Service Commission, for a hearing and a determination. If
the Commission finds the unit appropriate, it may then
make a recommendation to the Board of Supervisors. The
Board of Supervisors shall then set the election for a date
not exceeding thirty (30) days following the receipt of the
certification. Election procedures shall be established by

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the Board of Supervisors but cost of any election shall be
borne by the petitioners.
[¶]. . .[¶]
“The unit to be decertified need not be coterminous with the
certified unit, but it cannot exceed in scope the certified
unit, and the unit to be decertified must be an appropriate
unit standing alone.”
II. 	CMEU’s Petition
On January 9, 2024, CMEU submitted its Petition to the County, seeking to
become the exclusive representative of a new unit comprised of only public defenders
and investigators.4 When CMEU filed the Petition, there were 9 investigators and
either 53 or 54 public defenders in the classifications at issue. Together with its
Petition, CMEU submitted proof of support from 7 investigators and 26 public
defenders.
On January 23, the Commission notified SEIU counsel Kerianne Steele that the
County had referred the Petition to the Commission and that the Commission had
scheduled the matter for its February 12 meeting. SEIU responded by submitting to
the County a document titled “Application for Certification and Challenging Petition.”
This document challenged the appropriateness of CMEU’s proposed unit and sought
to preserve the current composition of Unit 2 and Unit 3. The Challenging Petition thus
amounted to an argument against CMEU’s Petition, and the parties therefore never
treated it as a separate matter in need of separate adjudication. We follow the parties’
lead and treat the Challenging Petition as an opposition to CMEU’s Petition.
4 All further dates refer to 2024, except where otherwise noted.

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On February 7 and 8, the County informed CMEU and SEIU that the County
had removed CMEU’s Petition from the Commission’s February 12 agenda and,
because the EERR did not provide for severance petitions, the County was referring
the matter to PERB for processing. CMEU objected, and on March 25, the County
notified CMEU and SEIU that it had restored its original decision to refer the Petition to
the Commission.
III. 	The Parties’ Presentations to the Commission
On June 19, the Commission convened a special meeting to evaluate CMEU’s
Petition and SEIU’s response. At the outset, Commission President Jeremy Price
explained that the meeting would proceed using “the same procedure that they do at
the board of supervisors.” We infer that Price meant the Commission would follow
procedures that the County’s Board of Supervisors uses to address agenda items at
its public meetings. Responding to a comment from a speaker noting that she had
“never done one of these hearings before,” Price stated: “We haven’t either.”
Thus, while EERR Section XI required the Commission to hold a “hearing,” and
the parties have often referred to the June 19 Special Meeting as a “hearing,” the
Commission did not follow procedures commonly associated with an evidentiary
hearing. For instance, the Commission neither asked presenters to testify under oath
nor permitted cross examination. Rather, the Commission allowed unsworn presenters
to speak in narrative form, as at a typical public meeting in which a local legislative
body affords attendees an opportunity to public comment. County Human Resources
representatives responded tersely to narrow questions from Commissioners but were

8
not subject to questioning under oath by the parties. The County did not provide
documents to support any of its representatives’ answers to such questions.
The Commission did accept exhibits from the parties. The ALJ accepted these
exhibits into evidence at the formal hearing in this matter, together with a transcript of
the June 19 special meeting. Our legal discussion (post at pages 18-65) analyzes all
aspects of this record. Here, we provide context for that analysis by summarizing four
areas the speakers addressed: (a) similarities and differences between investigators
and public defenders; (b) whether these classifications’ interests are adequately
represented in the current unit structure; (c) how other counties have structured their
bargaining units; and (d) competing views of public defenders’ right to strike.
A. Similarities and Differences Between Investigators and Public Defenders
Samantha Bone was the sole investigator to speak on June 19. Bone stated
that investigators have little in common with certain other Unit 3 classifications—such
as surgical technicians—but she also noted certain differences between investigators
and public defenders. For instance, Bone explained that investigators need not have a
four-year college degree, and that training or experience may substitute for education.
In fact, the lowest level position—Investigative Aide—requires only a high school
diploma and six months of experience. Bone also acknowledged that investigators are
FLSA non-exempt employees who earn hourly wages, unlike public defenders, who
are FLSA-exempt and salaried. Investigators normally work a standard workday from
8:00 to 5:00, although on occasion attorneys ask them to work outside normal
business hours. Bone noted that investigators cannot interpret the law, so attorneys
do that for them. Public defenders give investigators assignments and tell them what

9
they need to prepare for trial. For this reason, Bone described investigators as
“sidekicks” to the public defenders, or more colorfully, as Robin to the attorneys’
Batman. While the two classifications share office space and are “constantly
interacting,” they have different skill sets. Thus, the two classifications may attend the
same conferences, but they are placed in different conference tracks because of their
distinct roles. Bone also stated that “almost all of our training comes directly from the
attorneys that we’re working with, and they are considered our supervisors.”
Multiple public defenders spoke on June 19 regarding their close working
relationship with investigators. Certain speakers noted differences between the two
classifications, such as the fact that public defenders must go to law school and pass
the bar exam to obtain their positions. One public defender, Clint Pierce, recounted
that there are times when he may be in trial until 4:30 p.m., visit incarcerated clients
until 8:00 p.m., and then wake up at 3:00 a.m. thinking about what he will be doing in
court that day.
B. Extent to Which Unit 2 and Unit 3 Can Provide Adequate Representation
Public defender Rob Owen stated that employees in the Public Defender’s
Office believe that their “interests are diluted” and they are “overshadowed” by larger
County employee groups such as social workers. Pierce similarly opined as follows:
“As attorneys, we have a very specific set of duties to our clients, and we have a very
specific set of needs in order to do our job appropriately. And I think our
representation needs to reflect that.” Pierce explained that public defenders and
investigators face “challenging situations dealing with mental health, homelessness,
going to high crime areas and gang-related area[s],” and “come into contact with

10
hostile people.” Pierce then offered his belief that no other members of either Unit 2 or
3 “shares anything like that,” but he offered no foundation or factual basis for his
opinion. Pierce stated that he wishes to be in a separate unit so that his “voice can be
heard,” as he does not believe his interests align with other professionals in Unit 2.
SEIU rebutted the notion that public defenders’ representation via Unit 2 is
inadequate. Yvonne Davila, SEIU’s Area Director and chief spokesperson in the
union’s contract negotiations with the County, first explained to the Commission that
members of SEIU’s Kern County Chapter elected two public defenders, Lyndsi
Andreas and Ajaib Gill, as Secretary and Vice-President. Both serve on the union’s
bargaining team in ongoing negotiations with the County. Davila further noted that a
third public defender, Robin Walters, serves on the bargaining team as the
representative for all of Unit 2.5
As discussed further at pages 33-34, post, SEIU’s current bargaining team
worked with Andreas, Gill, and Walters to craft specific proposals to address
investigators and public defenders’ needs. And the negotiations that were ongoing
during the formal hearing were not the first time that public defenders negotiated for
improvements through SEIU representation. Indeed, though public defender Jacob
Evans eventually quit his role as an SEIU shop steward and now serves as CMEU’s
representative, he testified at the PERB formal hearing about his work within SEIU
beginning in 2018 or 2019. Among other things, Evans led efforts “to create and
implement workload standards” for the public defender’s office, and “was involved in
5 Investigators are eligible to run for bargaining team positions, but none ran in
the last election.

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the class and comp bargaining negotiating team for deputy public defenders.” Evans
added that he was also involved in “[l]ots of other significant achievements during that
time up until about 2023 when [he] stepped back from the shop steward.”
C. Comparators in Other Counties
Public defender Sunny Gallo told the Commission that she and her colleagues
had “done some research which shows a trend in other counties for investigators and
public defenders to be regrouped together.” However, Gallo did not provide a single
such example, and the extensive examples in the record do not show any county that
has ever created a bargaining unit that includes both public defenders and
investigators. Gallo did list 12 counties where “attorneys” (not necessarily limited to
public defenders) are in their own bargaining unit.
In response to Gallo’s presentation, SEIU’s counsel asked SEIU Researcher
Sydney Galusha to explain her findings about other counties with a public defender’s
office and whether they have placed public defenders and public defender
investigators in the same bargaining unit or separate units. Out of California’s
58 counties, 32 have a public defender’s office. Galusha was able to find publicly
available information on unit structure in 29 of these 32 counties, and none include
public defenders and investigators in a single unit.6
D. The Right to Strike
Gallo concluded her remarks by stating her view that public defenders and
investigators cannot strike:
6 Galusha could not determine these classifications’ unit placement in the
remaining three counties.

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“One last point that I want to highlight, and I think this is the
most important point, is what it looks like if we’re going on
strike, which is basically the cornerstone remedy for labor
disputes. . . .
“We have to cross the picket lines when somebody else in
our bargaining unit goes on strike. And so, just by that fact,
we are at odds with everybody in our unit and we would not
be able to back them on their ideals. We have an ethical
obligation to our clients, and if we do not, that’s an
ineffective assistance of counsel [IAC] claim, which we
talked about before. While it’s not technically prohibited, we
cannot ethically abandon the clients we currently have, and
then we would not be able to bring on new clients. And
basically what that looks like is, obviously all cases would
go to IDP [Indigent Defense Panel] at that point.
“What happens if all cases go to IDP? It affects clients,
victims, caseload, the court, everything gets impacted. And
I think at a previous meeting somebody was already
complaining about IDP and their ability to provide services.
It also affects the cost for County money. If – if, let’s say at
a point a new attorney is appointed midway through a
representation of a client, then that attorney has to start
over. They have to do their own investigation. It starts the
clock all over, which not only affects cost-wise for the court,
both cost-wise for the IDP panel and their investigators as
well.
“And also it comes back to us, as a result in State Bar
actions, licenses, we can’t strike because of potential
litigation against the County for IAC claims. And this also
involves our investigators. If we – if we’re not taking on new
cases, then that would impair their ability and obligations,
as well. As so if we would have to conflict off of cases,
which is enormous set back, that would be a huge expense.
The most important thing, like I said before, this does not
happen for any other job in Bargaining Unit 2 or Bargaining
Unit 3. Any job can go on strike and it will not affect us, but

13
we cannot cross – we have to cross that line, and therefore
our interests not aligned with anybody else.”
The public defenders’ primary spokesperson at the Commission meeting,
Autumn Paine, used even starker language to offer a similar opinion:
“We don’t have similar interest, and we are unable – I will
lose my Bar card if I go on strike, which would be bad
because I still have a lot of student loans. I cannot go on
strike with other people in my bargaining unit.”
IV. 	The Commissioners’ Questions and Explanation of Their Votes
Four Commissioners attended the June 19 meeting, with one Commissioner
absent. At the close of the meeting, all four who were present voted to find that CMEU
had proposed an appropriate unit. Each had the opportunity to ask questions, and
certain Commissioners expressed the reasons for their vote.
Commissioner Brian Holt asked Michael Goulart, the County’s Assistant Chief
Human Resources Officer, whether there are other County bargaining units that
include both professional and technical classifications. Although the record reveals no
such units, Goulart correctly stated that there are MOUs that cover both professional
and technical units. Indeed, SEIU’s MOU with the County covers multiple units,
including Unit 2 and Unit 3. Goulart stated that, therefore, the County did not think it
would be a problem to mix professional and technical employees in one unit. Goulart
also said a small unit would not be a problem, as the County already has a unit with
just a single classification. However, Goulart did note that the County already has
15 units, the County was in negotiations with 6 separate units at once, and it takes
considerable time to bargain with that number of units.

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Commissioner Romeo Agbalog asked about labor relations history in the
County. County Counsel Kate Zimmerman responded that district attorneys and child
support attorneys had successfully severed themselves into a stand-alone unit in the
1990s, but district attorney investigators did not join the unit because they are peace
officers entitled to representation in a unit that only contains peace officers.
Agbalog also asked SEIU representatives present at the hearing: “Why would
you want . . . people who don’t want you [to] represent them to still stay in your unit?”
In response, Steele noted that is not a relevant factor for the Commissioners to
consider, but Agbalog disagreed.
Price then indicated why he thought all four of the subordinate factors in the
EERR support CMEU’s position, explaining his thinking as follows:
“I looked at . . . four criterion A, B, C, and D. . . .
“A, which unit will assure [employees] the fullest freedom
and the exercise of rights set forth under this resolution. Mr.
Owen directly addressed that, saying that they had
requested resolutions that were not considered, that he
didn’t care for how it worked, that he couldn’t work. They
had an open-door policy. It didn’t work. The union was
standing in the way. Also, Mr. Pierce addressed that,
saying he didn't fear that his voice is heard in the SEIU's.
His interests are not aligned with the SEIU.
“I’ll move to Item B. The history of employee relations in the
unit among other employees in the county and in similar
public employment. Ms. Gallo, who I interpreted when she
said that other counties are moving to this, what she meant
was the public defenders were no longer part of SEIU, not
that they were all moving to a combined public [defender
and] public investigator. I may have misunderstood, but
that’s how I interpreted it and the counties she gave me and
I checked some of them against SEIU’s own exhibit, Santa
Clara, [Orange], Alameda, San Joaquin, Shasta, Yolo, San

15
Francisco, San Diego. Obviously, a lot of count[ies’] public
defenders do not think they belong in an SEIU bargaining
unit. It’s not just one. That’s a lot. So that’s item B. That’s
similar public employment.
“Item C, the effect of the unit on the efficient operation of
the County and sound employer employee relations. I think
[Owen] touched on that again. I thought Mr. Pierce touched
on that as saying that they can’t keep talent in the
department. I thought Ms. Gallo touched on that again, the
term community of interests.
“And item D, the extent to which employees have common
skills, working conditions, job duties, or similar educational
requirements. What struck me by both Ms. Paine, Ms. Gallo
and others was the mention of the concept of strike.
Anybody who has just a cursory knowledge of unions
knows that it starts with a strike, right? That’s the ultimate
sort of damage, so to speak, hanging over the head of any
negotiation. You’ve got a bargaining unit that has people in
it that can strike, and people in that bargaining unit who
cannot, they’ll be disbarred. A judge will hold them in
contempt if they just dump their client right in the middle of
a case and they’re thrown together in the same bargaining
unit with the ultimate bargaining power that they don’t have.
So, when I look at these things, I looked at the totality of
them, I think that the public defenders have made a very
compelling argument for why they don’t want to be a part of
a bargaining unit full of people with disparate interest and
an ability that they do not possess to strike. Furthermore,
when I look back to number B, the history of employee
relations, [Paine’s] testimony, she can never find a record
of the fact that public defenders ever even voted to join
SEIU.
“So now, Ms. Steele, this is a comment, not a question. I’ve
heard your very skillful arguments about procedure. I didn’t
hear one word about how the SEIU worked in the interest of
their employees, which is shocking for employer/employee
relations, didn’t hear one word. But meanwhile, what I’m
being asked to do is say, no, you have to stay part of a club

16
to represent you. That by the way, you never even voted to
get into in the first place, as a group. Shocking to me that –
that argument is even being made. So those are my
thoughts. I’ll return it to the commission at this point for any
other questions, follow-up if they’d like comments or
actions. But those were my thoughts as I listened to each of
the witnesses.”
Steele responded, disagreeing with the assertion that public defenders do not
have the right to strike. Steele acknowledged attorneys’ ethical obligations, but she
explained that SEIU would address this circumstance via a practice the union
frequently uses for other employee classifications that need to perform certain work
obligations during a strike to protect the public. Specifically, SEIU negotiates over
such issues with management and issues strike exemptions, known as “line passes,”
to a limited number of employees to cover critical work that cannot wait until after the
strike. Price responded that even if Steele is right that public defenders can strike, the
fact that they are unaware of that right is relevant to whether they have “full freedom”
to exercise their rights.
Commissioner Michael Bowers then explained why he was voting in favor of the
new unit, explaining that “this seems like a divorce court almost to a degree. Look,
they don’t want to be in the relationship anymore,” making the proper outcome “pretty
obvious.” Thereafter, Bowers made a motion to approve the proposed new unit and
recommend that the Board of Supervisors schedule an election to determine which
organization will represent the new unit. The motion passed unanimously.
Following the June 19 special meeting, the Commission wrote to the Board of
Supervisors to: (1) notify the Board of Supervisors that the Commission found CMEU’s
requested unit to be appropriate; and (2) request that the Board of Supervisors set an

17
election to be held by the State Mediation and Conciliation Service (SMCS) to
determine which organization will represent the new unit. Neither in this letter nor in
any other document did the Commission provide any further explanation for its finding
that CMEU’s petitioned-for unit is appropriate.
On July 16, the Board of Supervisors approved the Commission’s request.
V. 	Litigation History
SEIU initiated this case on June 26, after the Commission found CMEU’s
proposed unit to be appropriate but before the Board of Supervisors approved the
Commission’s request. On June 27, SEIU asked OGC to stay the soon-to-be
scheduled severance election pursuant to PERB Regulation 33002. On July 23, OGC
issued a complaint, alleging, inter alia, violations of or unreasonable application of
local rules. On July 26, OGC issued an administrative determination staying the
severance election and adding CMEU as a joined party in this case.
The ALJ twice amended the complaint at SEIU’s request and held a virtual
hearing. Thereafter, the ALJ granted SEIU’s request for administrative notice of
PERB’s case file in County of Sacramento v. Sacramento County Attorneys’
Association, Case No. SA-CO-168-M, in which Sacramento County filed a request for
injunctive relief seeking to prevent its public defenders from striking.
After the parties submitted post-hearing briefs, the ALJ issued a proposed
decision finding that the County interfered with protected rights, while dismissing all
other allegations. SEIU appealed.

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DISCUSSION
MMBA section 3507(a) authorizes public agencies to “adopt reasonable rules
and regulations after consultation in good faith with representatives of a recognized
employee organization or organizations for the administration of employer-employee
relations.” Such local rules may include provisions for recognizing employee
organizations and determining appropriate bargaining units. (MMBA, § 3507(a)(3)
& (a)(4); County of Monterey (2022) PERB Decision No. 2821-M, p. 9 (Monterey).)
As noted above, the County followed a winding path in processing the Petition.
At one point, the County opined that its EERR did not provide for severance and that
CMEU would therefore need to file a severance petition with PERB. (See City and
County of San Francisco (2022) PERB Order No. Ad-497-M, pp. 15-22 [where local
rules have no reasonable means of accomplishing severance, then PERB Regulations
fill the gap and a severance petition at PERB is appropriate].) The County soon
changed its mind, however. We agree with the County’s ultimate position on that
question, as the decertification process in the EERR sufficiently addresses severance
using other words: “The unit to be decertified need not be coterminous with the
certified unit, but it cannot exceed in scope the certified unit, and the unit to be
decertified must be an appropriate unit standing alone.” Thus, while the EERR allows
severance, it requires a severance petitioner to show that unit determination criteria
support the petition.
Challenges to an MMBA employer’s unit determination normally allege that the
employer either maintained a facially unlawful local rule, violated one or more of its
rules, or applied its rules in an unreasonable or unlawful manner. (MMBA, §§ 3507(d)

19
& 3509(b) (c); PERB Reg. 32603(f) & (g); Monterey, supra, PERB Decision
No. 2821-M, p. 21; County of Orange (2016) PERB Decision No. 2478-M, p.16
(Orange).) Here, there is no allegation of a facially unlawful rule. Accordingly, we
consider whether the Commission’s severance determination violated the EERR or
applied the EERR in an unreasonable or unlawful manner.7
A charging party has the burden of proof to the extent it claims that an MMBA
employer’s unit determination violated the employer’s local rules or was unreasonable,
and we do not substitute our judgment for that of the employer if reasonable minds
could differ as to how applicable standards apply to the record. (Monterey, supra,
PERB Decision No. 2821-M, p. 9.) Notably, however, there is considerable variation in
the amount of deference we afford an MMBA employer’s unit determination. For
instance, if the MMBA employer provides a sufficient explanation of its unit
determination, we apply a rebuttable presumption that the determination is
reasonable. (Id. at p. 10.) In contrast, if the employer merely states the applicable
standard and then provides “a conclusion without also including the analytical process
in its decision,” the presumption of reasonableness falls away. (Ibid.) Here, we
consider the following factors in determining the amount of deference due to the
Commission’s decision.
7 The second amended complaint alleged that the Commission’s unit
determination was unreasonable and unlawful. Yet in the proposed decision, the ALJ
did not address this critical issue. Rather, the ALJ opined that SEIU’s post-hearing
brief allegedly had addressed the unit factors only in a single lengthy paragraph. As
we explain at pages 62-64, post, that would not constitute a waiver if true, and in any
event the ALJ overlooked other parts of SEIU’s brief dealing with the unit factors.

20
First, there is no written decision, even though Price closed the June 19 special
meeting by requesting the County Counsel to draft such a written decision. The
Commission asks us to excuse the lack of a written decision because the EERR is
“silent as to any requirements (including any deadline) for the issuance of a written
decision to supplement the Commission’s verbal decision issued at the close of the
hearing.” We agree to the extent that the Commission did not violate its local rules by
failing to explain its decision in writing. This argument only goes so far, however. As
noted above, failure to sufficiently explain the decisionmaker’s analysis opens the
decision to a greater degree of scrutiny.
The Commission also suggests that the absence of a written decision could be
due to SEIU’s successful stay request. But this argument fails. OGC did not grant the
stay until July 26, which was more than 5 weeks after the June 19 special meeting and
10 days after Board of Supervisors approved the Commission’s request. Moreover,
OGC only stayed “proceedings in the pending SMCS case.” Thus, in preventing
SMCS from moving forward with an election, OGC did not prevent Respondents from
completing any written decision that was in the works. There is no evidence that such
a decision was in the works, and no one has claimed that there was. In any event, the
absence of a written decision is not a legal violation, but rather a factor supporting
greater scrutiny of the Commission’s determination.
Absent a written decision, what remains to explain the Commissioners’
reasoning is their comments at the special meeting. As discussed throughout our
analysis below, these comments show that the Commissioners erred in ways large
and small on point after point, demonstrating more carelessness, misinterpretation,

21
internal inconsistency, and ignorance of applicable principles than decisionmakers in
cases where we have found an employer’s unit determination to be lawful. (See, e.g.,
City of Glendale (2021) PERB Decision No. 2773-M, pp. 27-37 [although hearing
officer’s unit determination analysis was more extensive on certain points than on
others, overall reasoning showed sufficient explanation and consistency with the
MMBA, local rules, and precedent] (Glendale); City of Pasadena (2021) PERB
Decision No. 2788-M, pp. 9-17 [same] (Pasadena).)
Finally, as noted above, the Commission did not hold an evidentiary hearing or
otherwise use procedures that would tend to facilitate accurate factual and legal
determinations worthy of deference. Indeed, by allowing unsworn speakers to present
without establishing the basis for their statements or being subject to
cross-examination, the Commission ended up with a record replete with statements
that were vague, unclear as to their basis and accuracy, and/or little more than opinion
and rhetorical argument. This reliance on untested opinions is ill suited to determining
units, as unit determinations are highly fact-specific and require a sound process for
separating rhetoric from fact. Moreover, although the June 19 special meeting was the
first of its kind that the Commission had held in modern memory, the Commission did
not specify or explain in advance of June 19 what procedures it anticipated using,
despite SEIU asking about that topic.
We proceed to analyze CMEU’s proposed unit based on the MMBA, the EERR,
and precedent. This analysis does more than confirm that the Commission’s decision
warrants little deference; it also shows that, even were we to grant full deference by

22
applying a rebuttable presumption in the Commission’s favor, the record here would
overwhelmingly rebut any such a presumption.8
I. 	Applicable Principles
A. The EERR
The County’s EERR provides that the “principal criterion” for unit determination
is “whether the unit proposed contains the largest feasible group with a community of
interest among such employees.” The EERR then identifies four non-exclusive
subordinate factors, as follows:
“(a) Which unit will assure employees the fullest freedom in
the exercise of rights set forth under this resolution?
“(b) The history of employee relations: (1) in the unit;
(2) among other employees of the County; and (3) in similar
public employment.
“(c) The effect of the unit on the efficient operation of the
County, and sound employer-employee relations.
“(d) The extent to which employees have common skills,
working conditions, job duties, or similar educational
requirements.”
These criteria are pervasive in local rules adopted by MMBA employers. (See,
e.g., Monterey, supra, PERB Decision No. 2821-M, pp. 3 & 11 [local rules state that
unit determinations must reflect “the broadest feasible grouping of positions that share
8 We focus on the unit of public defenders and investigators that CMEU seeks.
Notably, the below discussion indicates that certain issues regarding CMEU’s
proposal would disappear if public defenders were to seek severance on their own,
while other issues would remain. We express no opinion whether a severance
petitioner could meet its burden were it to petition solely to sever public defenders
from Unit 2.

23
an identifiable community of interest” and identify subordinate factors substantially
overlapping with those in the EERR in this case]; Pasadena, supra, PERB Decision
No. 2788-M, p. 4 [local rules state that “principal criterion” is “whether there is a
community of interest” and identify five subordinate factors including the same four
factors in the EERR in this case]; City of Livermore (2017) PERB Decision
No. 2525-M, adopting proposed decision at pp. 8 & 36 (Livermore) [local rules state
that unit determinations must reflect “the broadest feasible grouping of positions that
have a community of interest” and identify subordinate factors substantially the same
as those in the EERR in this case]; Orange, supra, PERB Decision No. 2478-M, p. 3
[local rules state: “To minimize the fragmentation of units, the principal criterion for
determining an appropriate representation unit shall be the largest feasible group of
employees having a community of interest” and identify subordinate factors
substantially overlapping with those in the EERR in this case]; County of Riverside
(2010) PERB Decision No. 2119-M [local rules state that each unit “should be the
largest feasible group of employees having an identifiable common or related
interest”]; Westlands Water District (2004) PERB Decision No. 1622-M, p. 4 [local
rules establish the principal unit determination criterion is that a unit must “be the
broadest feasible group of employees having an identifiable community of interest,”
while identifying the same four subordinate factors listed in the EERR in this case].)
Because so many local agencies have analogous local rules, there is extensive
precedent interpreting the unit criteria at issue in this case. For instance, in Livermore,
supra, PERB Decision No. 2525-M, the employer had adopted unit criteria almost
identical to those at issue here. We held that these criteria are akin to the statutory

24
criteria under section 3545(a) of the Educational Employment Relations Act (EERA),
and we further held that it is proper to rely on PERB precedent interpreting EERA and
other PERB-administered acts when interpreting an MMBA employer’s local rules.
(Livermore, supra, adopting proposed decision at pp. 19 & 36.)
And Monterey, supra, PERB Decision No. 2821-M notes that a local rule
requiring the broadest feasible grouping “tracks settled precedent” in favoring larger
units, thereby preventing undue unit proliferation and fragmentation. (Id. at p. 11; see
also, e.g., Regents of the University of California (2025) PERB Order No. Ad-525-H,
p. 20 [larger units promote both employer efficiency and union efficiency, while
ensuring that employees have sufficient bargaining strength].) This preference for
larger units in the California public sector is, in fact, a critical principle distinguishing
public sector and private sector labor law. (County of Santa Clara (2019) PERB
Decision No. 2670-M, p. 27.)
B. 	Severance Principles
Preferencing the largest feasible unit with a community of interest, as reflected
in the EERR’s principal unit determination criterion, means that a severance petition
fails unless the history of collective bargaining shows that the employees at issue in
the severance petition no longer have a community of interest with their colleagues in
the broader unit(s). Furthermore, a severance petitioner’s burden is significant not only
because of the preference for larger units, but also based on an equally important
preference for stability in labor relations. (Los Rios Community College District (2018)
PERB Decision No. 2587, p. 4 [noting that “a stable negotiating relationship will not be

25
lightly disturbed”] (Los Rios); Livermore, supra, PERB Decision No. 2525-M, adopting
proposed decision at p. 38 [same].)
These principles interact to define what a severance petitioner must show. First,
severance is not appropriate merely because a small group of employees performing
similar duties or related work have a community of interest with one another that is
stronger than their community of interest with other employees in a larger, established
unit. (See, e.g., Los Rios, supra, PERB Decision No. 2587, pp. 4-7 [rejecting
severance petition seeking to remove police officers, police detectives, and college
safety officers from established, larger unit of maintenance, operations, and public
safety employees]; Los Angeles Unified School District (1998) PERB Decision
No. 1267, adopting proposed decision at p. 49 [rejecting severance petition seeking to
remove bus drivers from established, larger unit of operations and support personnel]
(LAUSD).) Indeed, if a severance petitioner only needed to show that a small group
had a stronger community of interest with one another than with the larger unit, that
would be an easy standard to meet and would accordingly lead to unit proliferation.
(Regents of the University of California (2010) PERB Decision No. 2107-H pp. 28-29.)
Rather, a severance petitioner must show that its proposed new unit has a
community of interest that is separate and distinct from the established unit to such an
extent that collective bargaining is “incapable of addressing the needs of a discrete
minority within the existing unit.” (Pasadena, supra, PERB Decision No. 2788-M,
p. 10; accord Los Rios, supra, PERB Decision No. 2587, pp. 4-6 & adopting proposed
decision at p. 13; Orange, supra, PERB Decision No. 2478-M, pp. 6 & 10; LAUSD,
supra, PERB Decision No. 1267, adopting proposed decision at pp. 49-50 & 58; see

26
also Regents of the University of California, supra, PERB Order No. Ad-525, p. 25,
fn. 12; Monterey, supra, PERB Decision No. 2821-M, pp. 15 & 19.) Absent such proof,
we presume that effective representation is possible even when a “pluralistic
bargaining unit” includes a “diverse set of occupational groupings.” (Regents of the
University of California, supra, p. 26.)
We must keep this burden in mind when analyzing the four subordinate factors
that the EERR identifies as relevant in finding the largest feasible unit with a
community of interest. It is more straightforward to analyze those factors in an initial
unit determination context, and in fact those factors supported finding Units 2 and 3
appropriate when the County initially established its units. While the subordinate
factors remain salient in a severance context, their relevance is for determining
whether CMEU has satisfied its burden to establish that public defenders and
investigators have such a distinct community of interest that collective bargaining can
no longer address their interests within Unit 2 and Unit 3. Accordingly, in Part II, post,
we analyze each subordinate factor to assess whether severance is proper or whether
Unit 2 and Unit 3 remain feasible groupings with a sufficient community of interest.
C. MMBA Section 3507.3
The preference for larger units is subject to special unit determination rules that
the MMBA establishes for certain types of employees. One such provision is relevant
here: MMBA section 3507.3 affords professional employees the right to be
represented separately from non-professionals. Specifically, section 3507.3 provides
as follows:
“Professional employees shall not be denied the right to be
represented separately from nonprofessional employees by

27
a professional employee organization consisting of those
professional employees. In the event of a dispute on the
appropriateness of a unit of representation for professional
employees, upon request of any of the parties, the dispute
shall be submitted to the California State Mediation and
Conciliation Service for mediation or for recommendation
for resolving the dispute.
“’Professional employees,’ for the purposes of this section,
means employees engaged in work requiring specialized
knowledge and skills attained through completion of a
recognized course of instruction, including, but not limited
to, attorneys, physicians, registered nurses, engineers,
architects, teachers, and the various types of physical,
chemical, and biological scientists.”
Public defenders meet the definition of professional employees in section
3507.3, but investigators do not meet that definition. While the Commission erred in
failing to consider section 3507.3 and its impact, we do so below.
Before turning to the substance of section 3507.3, we briefly note that the
provision includes a unique procedural option. In a unit dispute involving professional
employees, any party has the right to insist on a referral to SMCS, and at that point
the employer must pause all proceedings under its local rules to allow SMCS to
mediate and/or issue a recommendation. (International Federation of Prof. &
Technical Engineers v. City and County of San Francisco (2000) 79 Cal.App.4th 1300,
1309-1310 [“the procedure of section 3507.3 is meant to be free of local variation” and
“the subject covered by section 3507.3 is not subject to local regulation”].) For MMBA
unit disputes that go to OGC in the first instance (because the employer has no
applicable local rule), if the dispute involves professional employees and any party
asks for a referral to SMCS, then OGC must similarly honor that request and pause

28
proceedings. Here, however, no party availed itself of this procedural right, and SMCS
therefore played no role.
Substantively, section 3507.3 does not necessarily prohibit a mixed unit of
professionals and non-professionals, but provides that professional employees placed
into such a unit have the right to severance if a union seeks to represent them in a
professionals-only unit and demonstrates sufficient proof of support in an initial
petition and eventual election. (Santa Clara Valley Water District (2017) PERB
Decision No. 2531-M, p. 14.) The right that section 3507.3 affords to professional
employees is stronger than the comparable right in three other PERB-administered
labor relations statutes, where there is merely a rebuttable presumption against mixing
professionals in the same unit with non-professionals. (See § 3521(c) [covering state
employees]; § 3524.77(c) [covering Judicial Council employees]; § 3579(b) [covering
University of California and California State University employees].)
Section 3507.3 does not afford every group of professionals a right to its own
unit. Accordingly, an “all professionals” grouping—such as Unit 3 in this case—fully
protects the right set forth in section 3507.3. (Orange, supra, PERB Decision
No. 2478-M, pp.13-14.) However, traditional community of interest criteria can merit
narrower professional units, depending on the circumstances. Indeed, in Alameda
County Assistant Public Defenders Assn. v. County of Alameda (1973) 33 Cal.App.3d
825, 832 (Alameda), an appellate court reviewed Alameda County’s initial division of
employees into units and overturned its decision to place public defenders in a unit
with all other non-healthcare professionals. The court ordered the employer to place
the public defenders in their own unit, finding that they were “Sui generis” (meaning

29
unique) and had little in common with auditors, planners, and rodent inspectors. (Id. at
p. 832.)
Notably, because Alameda involved an initial unit determination rather than
public defenders seeking severance after decades of stable labor relations in a
broader unit, it does not stand for the proposition that public defenders always have a
right to sever themselves from a broader professional unit. Thus, in California counties
where public defenders are part of a broad professional unit, they may seek to sever
themselves into a stand-alone public defenders’ unit, but they bear the burden of
showing that the larger, established unit cannot adequately address their interests.
In Santa Clara County District Attorney Investigators Assn. v. County of Santa
Clara (1975) 51 Cal.App.3d 255, the appellate court addressed an analogous MMBA
provision—section 3508—which affords peace officers the right to participate in unions
composed solely of peace officers. The court noted the similarity between sections
3507.3 and 3508 and construed Alameda narrowly, explaining that just as section
3507.3 permits an “all professionals” unit, MMBA section 3508 permits an “all peace
officer” unit absent proof that such a broader unit “is unable to effectively represent” a
particular subset of employees. (Id. at p. 265.)
In this case, the primary relevance of section 3507.3 is that CMEU proposes to
remove public defenders from an “all professionals” unit that protects their statutory
right to be represented separately from non-professionals, moving them instead to a
mixed unit with non-professionals. Such a move creates a long-term instability and
potential for additional fragmentation later, since the public defenders would always
retain the right to seek a further severance from the mixed unit. (See City of Lodi

30
(2010) PERB Decision No. 2142-M, adopting proposed decision at p. 12 [efficiency of
operations warrants rejecting severance petition that would create small, mixed unit of
professionals and non-professionals, as professionals could later file for severance
from that unit] (Lodi).) Thus, as discussed in Part II(C), post, CMEU’s Petition is
inconsistent with notions of efficiency and sound labor relations. And while severance
petitions always have a near-term destabilizing potential, in this case the Petition
would have both a near-term and long-term destabilizing impact.
II. 	Analysis of CMEU’s Petition
CMEU’s attempt to move public defenders from an all-professionals unit to a
mixed unit is one unusual aspect of its Petition, but there is another abnormality as
well: CMEU seeks to sever employees from two different units and combine them into
a new unit. This violates the EERR, which provides that the “unit to be decertified
need not be coterminous with the certified unit,” but it “cannot exceed in scope the
certified unit.” By mixing and matching employees from two different units, CMEU
exceeds the scope of either Unit 2 or Unit 3. While this EERR violation independently
required dismissal of CMEU’s Petition, in the alternative, we proceed to analyze the
petition as if the EERR contained no such limitation.
Even if the EERR permitted a mix-and-match severance petition from two units
simultaneously, at a minimum CMEU would have to show both that Unit 2 is incapable
of addressing public defenders’ interests and that Unit 3 is incapable of addressing
investigators’ interests. As we proceed to discuss, CMEU did not satisfy either (much
less both) of these burdens. The below discussion also shows that the Commission

31
failed to follow the EERR’s principal criterion, while wrongly interpreting each of the
following subordinate unit determination factors.
A. Fullest Freedom to Exercise Rights
The first factor dovetails with longstanding policy developed under
PERB-administered statutes, providing employees “the ability to choose an
organization which is an effective representative.” (Sweetwater Union High School
District (1976) EERB Decision No. 4, p. 9.)9 Effective representation is “largely
determined by the community of interest and established practices of the employees.”
(Ibid.) Importantly, this factor has never assumed that smaller units, while having
perhaps a greater internal community of interest, will result in more effective
representation for employees. (Los Rios, supra, PERB Decision No. 2587, pp. 4-5.)
Rather, in severance matters we have concluded that a stable negotiating relationship
promotes effective representation, and considered whether under the existing unit
structure, the incumbent representative is capable of effectively addressing competing
bargaining interests. (Id. at p. 5.) To address this question, we have examined the
parties’ negotiating history to determine whether the incumbent representative has
historically neglected or ignored a minority’s interests. (Id. at pp. 5-6.) We have
applied the same analysis in prior cases where the “fullest freedom” factor was
present in a local agency’s unit determination rules. (See Pasadena, supra, PERB
Decision No. 2788-M, pp. 11-13; see also Glendale, supra, PERB Decision
No. 2773-M, pp. 29-30.) We now examine the three primary contentions that CMEU
9 Prior to 1977, PERB was known as the Educational Employment Relations
Board.

32
argued, and Commission President Price cited, as reasons CMEU’s proposed
severance is allegedly needed.
1. 	Alleged Neglect of Employee Interests
As noted above, CMEU has the burden to show that the current unit structure is
incapable of addressing unique interests of public defenders and investigators. Stated
differently, a “readily identifiable minority of unit members is not required to relinquish
its issues regularly to the more powerful majority.” (LAUSD, supra, PERB Decision
No. 1267, adopting proposed decision at pp. 55-56.)
But CMEU cannot come close to meeting this burden. Public defenders, far
from being a powerless minority, in fact wield disproportionate power within Unit 2 and
within SEIU’s overall structure as well. Unit 2 includes dozens of professional
classifications.10 But among these many classifications, it is public defenders that hold
three critical elected union offices. First, public defender Walters serves as the Unit 2
representative on SEIU’s bargaining team. Second, public defender Gill serves as
SEIU’s Vice President for Kern County. Finally, public defender Andreas serves in
another critical role, Secretary for SEIU’s Kern County Chapter. Gill and Andreas, as
chapter-wide officers, also serve on the bargaining team, giving public defenders three
representatives on the team. The record does not indicate that any other classification
wields even close to this much influence. Given this disproportionate influence, we
cannot find that public defenders and investigators have had to relinquish their
10 Unit 2 includes well over 100 separate titles. Examples include behavioral
health nurses and therapists, clinical psychologists, criminalists, epidemiologists,
hazardous materials specialists, librarians, mental health physicians, microbiologists,
nurse practitioners, psychiatrists, public health nurses, and social service workers.

33
interests to a more powerful majority. (See Glendale, supra, PERB Decision
No. 2773-M, pp. 29-30 [finding one representative of employee group on union’s
board of directors to be reasonable evidence that existing structure sufficiently
ensures the fullest freedom of employee rights].)
Nor does the record show that public defenders’ employment terms have
suffered from neglect. At the Commission’s meeting regarding the severance petition,
Pierce recounted how retention of public defenders has “been an issue in the past with
Kern County” because once attorneys in Kern obtain experience, they want to “go
elsewhere.” To address this retention issue, Pierce explained that Kern affords public
defenders better promotion rights than comparable public defenders elsewhere.
Pierce noted that he had promoted “up from I to IV” in just six years and that his
“colleagues [in] other counties” cannot promote so quickly. And for investigators,
Evans admitted that “turnover is not [a] significant concern,” as investigators choose to
stay in their jobs for “a very long time.”
The MOU between SEIU and the County provides longevity pay increases at
10, 15, 20, 25, and 30 years of service, over and above regular annual cost-of-living
increases. Also relevant is MOU section V(7), which requires the County to meet with
SEIU to address recruitment and retention difficulties the County has faced with
respect to 14 specific employee groups, including public defenders. As part of that
provision, the County must perform a total compensation study comparing Kern
County public defenders to those in comparable counties.
In the latest round of bargaining that was ongoing during the formal hearing in
this matter, the three public defenders on SEIU’s bargaining team wielded strong

34
influence over the union’s proposals. Specifically, SEIU sought to establish four
additional enhancements targeted at public defenders and investigators. The first was
to add special assignment pay premiums (ranging from 5 percent to 10 percent) for
public defenders who work in outlying branch courts, supervise permanent units, or
complete a variety of continuing education certifications, including in areas such as
juvenile representation, death penalty representation, or probate law. The second was
to add a retention bonus of $3,000 per year for the first five years following a public
defender’s hiring. The third was to create a $1,000 annual professional development
allowance for legal education and membership in legal associations, over and above
the benefits already afforded in MOU section VI(4) (providing $500 annual
reimbursement for professional fees such as bar dues) and MOU section VI(11)
(providing $500 annual reimbursement for approved education or continuing education
training required to maintain bar membership). The fourth was a hazard pay proposal
that SEIU was specifically designing, in consultation with employees in the Public
Defender’s Office, to benefit investigators.
Moreover, these ongoing efforts by SEIU are on top of the earlier work that
Evans described to create and implement workload standards for public defenders
and to represent public defenders in class and compensation bargaining, among “[l]ots
of other significant achievements.” Indeed, while Evans did not go into further detail
regarding these achievements, his testimony makes it hardly surprising that Kern
public defenders enjoy better promotion rights than their colleagues in other counties.
Thus, not only do SEIU and the County have a “stable and productive”
collective bargaining relationship, but SEIU’s representation includes highly involved

35
participation by “members of the petitioned-for classifications.” (Pasadena, supra,
PERB Decision No. 2788-M, pp. 11-12.) While an incumbent union need not show
such participation to defeat severance, here such evidence leaves CMEU no plausible
case, completely disproving Owen’s claim to the Commission that public defenders’
interests are “diluted” and “overshadowed” by social workers or other unspecified
employee groups.
Owen, choosing to ignore public defenders’ disproportionate influence on the
bargaining team, asserted that public defenders had unsuccessfully sought to include
the Public Defender’s Office in MOU section III(12), which requires the County to meet
with SEIU to discuss workload issues in certain departments. But Owen’s presentation
left unanswered nearly every salient question, such as: If certain public defenders
wished to amend the mandatory discussion provisions in MOU section III(12), did they
do so by approaching the three public defenders on the bargaining team? What,
specifically, happened that prevented such an MOU amendment? For instance, did
the bargaining team believe a different approach would better address workload, or
did the bargaining team make the proposal but run into opposition from management?
Furthermore, did public defenders, through their elected representatives, attempt to
raise workload through the labor-management committee established in MOU
section III(10), which is open to all departments?
Owen also stated his belief that because the head of the Public Defender’s
Office, Peter Kang, has an “open-door policy,” if public defenders could create their
own unit, they would be able to “directly access Mr. Kang.” According to Owen, that is
not possible within the current unit structure “because SEIU requires us to set up

36
meetings with them,” yet often “they don’t appear or don’t respond to those requests
for meetings with Mr. Kang on generally pretty minor things, but important things.” But
Owen misunderstands labor law if he believes public defenders cannot avail
themselves of Kang’s open-door policy without the consent of their union. (See § 3502
[MMBA-covered employees “shall have the right to represent themselves individually
in their employment relations with the public agency”]; § 3503 [MMBA does not
“prohibit any employee from appearing in his own behalf in his employment relations
with the public agency”]; Alameda County Medical Center (2004) PERB Decision
No. 1620a-M, p. 3 [MMBA section 3502 protects unionized employees’ right “to
represent themselves in their employment relations with the public agency employer”
but does not authorize employer to bypass union and negotiate separate employment
terms with individual employees]; Alameda County Medical Center (2004) PERB
Decision No. 1620-M, p. 2 [MMBA section 3503 protects unionized employees’ right
“to meet with the employer without the employee organization” but does not authorize
the employer to bypass the union and negotiate separate employment terms with
individual employees].) Owen also failed to specify whether the public defenders
hoping to meet with Kang sought to work with the three elected public defender union
representatives (Walters, Gill, and Andreas), and what, specifically, happened each
time.
Owen also claimed that SEIU confuses “who we work for, suggesting that we
should talk to our boss, the District Attorney.” Since it is inconceivable that the three
public defenders who serve as elected SEIU representatives could make that mistake,
and Owen provided no details, we infer that it must have been an SEIU representative

37
from outside the Public Defender’s Office who misspoke in that manner. While that is
unfortunate, it does not come close to overcoming other evidence against severance.
And, in fact, if an SEIU representative told employees to talk to their boss (even while
misidentifying for whom they work), this undercuts Owen’s claim that SEIU blocks
employees from accessing their boss’s open-door policy. In any event, given that Gill
and Andreas are SEIU officials quite familiar with the Public Defender’s Office,
investigators and public defenders have support from representatives who are
well-versed in the issues at stake in their office. Owen may believe that SEIU
representatives from outside the Public Defender’s Office should accompany them to
meet with Kang over what Owen described as the “pretty minor things, but important
things” that come up in the workplace, but such an approach would be less common in
labor relations, if more knowledgeable representatives from the department are
available.
After Owen offered his views, Price specifically repeated and relied on them to
justify severance, while failing to recognize any of the above flaws in Owen’s opinions.
Price, in fact, went further. He said he found it “shocking” that he “didn’t hear one word
about how the SEIU worked in the interest of their employees.” But his memory was
poor on that score. Price received all the oral and written information discussed above
but did not give SEIU credit for its multiple successes and its further efforts in ongoing
bargaining to convince management to further enhance employment terms and
conditions for public defenders and investigators. We cannot subscribe to this
approach of blaming SEIU (rather than management) for challenges that remain while
refusing to credit SEIU for successes and ongoing efforts.

38
The record thus does not remotely support the notion that a “readily identifiable
minority of unit members” has been “required to relinquish its issues regularly to the
more powerful majority.” (LAUSD, supra, PERB Decision No. 1267, adopting proposed
decision at pp. 55-56.) Precedent dictates that employees cannot meet this standard
merely by showing a “history of dissension and lack of alternatives to mediate
legitimate conflicts” marked by “two or three issues” that their union has “failed to
address to [their] satisfaction.” (Id., adopting proposed decision at p. 58.) CMEU’s
much less impressive showing, which SEIU’s evidence easily outweighs, does not
come close. Indeed, even if one were inclined to set aside CMEU’s burden and
instead view CMEU’s assertions in the light most favorable to them, while affording
CMEU the benefit of the doubt as to why it ignored SEIU’s bargaining efforts on behalf
of public defenders and investigators, CMEU’s complaints still would not amount to
more than “general dissatisfaction with bargaining results that commonly exists within
a bargaining unit.” (Pasadena, supra, PERB Decision No. 2788-M, p. 12; accord Los
Rios, supra, PERB Decision No. 2587, p. 5 [“police employees’ unanimous opposition
to a recently-approved collective bargaining agreement” were “not materially different
from the garden variety differences that commonly exist within a bargaining unit”].)
Another flaw also permeates CMEU’s argument. Even where there is evidence
that an incumbent union has provided poor representation, that does not indicate that
the established unit structure neglects the needs of one sub-group, unless the
evidence shows that representational efforts skew against the group in question
and/or in favor of other groups. (Pasadena, supra, PERB Decision No. 2788-M, p. 12
[although incumbent union “did not achieve bargaining success in every area of

39
concern” to the group seeking severance, this did not necessarily result from disparate
representation favoring other classifications].) Thus, even overall poor representation
does not favor severance but rather suggests that employees may wish to consider
petitioning to decertify the union representing the entire unit (with or without replacing
it with a different union), or, in extreme cases, filing a charge alleging breach of the
duty of fair representation. The current record, however, simply does not establish a
history of poor representation, much less a history skewed against investigators and
public defenders.
2. 	Alleged Impact of Employee Free Choice
Paine told the Commission that the employees supporting severance “have
done a ton of research on the history of labor relations for our department. And what
they have found is that apparently no majority has ever voted for the current structure
or more importantly, for SEIU representation.” Later, Paine framed the result of the
research differently: “We have not found any solid information about how all of this
came to be . . . no one seems to know.”
Price relied on Paine’s vague assertions, noting that employees could not “find
a record of the fact that public defenders ever even voted to join SEIU.” Price stated
that “what I’m being asked to do is say, no, you have to stay part of a club to represent
you. That by the way, you never even voted to get into in the first place, as a group.
Shocking to me that – that argument is even being made.” Commissioner Bowers also
saw the matter as one of employee free choice, stating that he saw the Commission’s
role as akin to “divorce court,” because “they don’t want to be in the relationship

40
anymore and it’s pretty obvious.” A third commissioner echoed this view, stating:
“you’ve got a group of folks who work at the public defender’s office” who “want out.”
CMEU and the Commission once again misunderstand fundamental labor
relations principles. First, “while employees have the right to choose which employee
organization, if any, they want to represent them, they have no right to choose the
bargaining unit in which their classification or position is placed.” (Pasadena, supra,
PERB Decision No. 2788-M, p. 11; accord Regents of University of California v. Public
Employment Relations Bd. (2020) 51 Cal.App.5th 159, 190 [affirming that employees
have no “right to choose the bargaining unit in which their classification or position is
placed”].) Rather, unit determinations flow from the EERR criteria discussed
throughout this decision, including the principal criterion of finding the largest feasible
group with a community of interest. Unit determinations therefore are based on
objective facts rather than on employees’ subjective sentiments, which may change
from year to year or decade to decade. Otherwise, changing employee sentiments
over time would lead to constantly shifting unit structures. Instead, changing employee
sentiments can lead to decertification and/or change in which union represents a given
unit.
Second, while the record does not include the full history of labor relations in
Kern County, there is no mystery as to how, under the EERR, public defenders and
investigators ended up represented by SEIU in Unit 2 and Unit 3. We do not know
when, but Units 2 and 3 were determined appropriate, SEIU gathered sufficient proof
of support in each unit to trigger an election, and employees in each unit voted in an
election. Such elections use secret ballots, meaning it is impossible to know whether

41
the public defenders or investigators who voted ended up favoring SEIU. What is
indisputable is that a majority of voting employees in the full set of classifications
chose SEIU, both within Unit 2 and, separately, within Unit 3. CMEU claims this
history shows we do not know if a majority of public defenders and/or investigators
ever supported SEIU. But because union elections are unit-wide and use secret
ballots, it is no exaggeration to say that the lack a classification-specific vote is just as
true for every classification in every unit—not only throughout Kern County but at all
public and private employers in the United States with unionized bargaining units
containing at least two classifications.
Finally, the Commission’s approach ignores that, at any given time, it is
unsurprising if employees in one or more classifications in a unit may desire a new
union. If that dissatisfaction grows to more than half the unit, then decertification
becomes possible. But the severance inquiry, as described above, does not turn on
employee dissatisfaction. If it did, severance and unit proliferation would be pervasive.
The Commission’s approach would thus create a chaotic number of meritorious
severance petitions. Even aside from the other flaws in the Commission’s analysis,
this error independently requires us to reverse the Commission’s determination.
3. 	Alleged Inability to Strike
As noted above, Paine starkly told the Commission: “I will lose my Bar card if I
go on strike,” and as a result “I cannot go on strike with other people in my bargaining
unit.” A second public defender, Gallo, stated that public defenders are unlike “any
other job in Bargaining Unit 2 or Bargaining Unit 3. Any job can go on strike . . . but we

42
cannot cross—we have to cross that [picket] line, and therefore our interests are not
aligned with anybody else.”
Price accepted these opinions, stating: “Anybody who has a just a cursory
knowledge of unions knows that it starts with a strike, right? That’s the ultimate sort of
damage, so to speak, hanging over the head of any negotiation. You’ve got a
bargaining unit that has people in it that can strike, and people in that bargaining unit
who cannot, they’ll be disbarred . . . and they’re thrown together in the same
bargaining unit with the ultimate power that they don’t have.”
Steele corrected these exaggerations, explaining that: (1) their premise is not
right; and (2) just as SEIU works with other critical classifications to ensure that a
minimum number needed receive line passes to perform essential work during any
strike and thereby allow many of their colleagues to strike, SEIU would go through the
same process with public defenders. Price refused to relent and instead pivoted,
saying that even if Steele is right, public defenders “are under the impression” that
they cannot strike, so CMEU’s argument is still persuasive as to what unit will afford
them the “full freedom of the exercise of their rights.” As we proceed to explain, Steele
was correct in her representations and Price was wrong to rely on strike rights as a
factor supporting severance.
Determining “whether a particular employee’s job is so essential that the
employee may not legally strike is a complex and fact-intensive matter.” (City of San
Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 601.) The
starting point is “the nature of the services the alleged essential employees perform
and whether the employer has clearly demonstrated that disruption of such services

43
for the length of the strike would imminently and substantially threaten public health or
safety.” (County of San Mateo (2019) PERB Order No. IR-61-M, p. 8.)
In Santa Clara County Counsel Attorneys Assn. v. Woodside (1994) 7 Cal.4th
525, the California Supreme Court noted that the American Bar Association
Committee on Ethics and Professional Responsibility (ABA Committee) had
“considered the propriety of strikes by attorneys who are employed by a single
employer in public or private practice.” (Id. at p. 551.) The Court summarized the ABA
Committee’s resulting opinion as adopting “what may be called a pragmatic approach
to the question of strikes.” (Ibid.) “If the attorney’s strike leads to the neglect or
intentional sabotage of the employer/client’s affairs, then the attorney would have
violated his or her professional obligations.” (Ibid.) However, the ABA Committee
found that “in some situations participation in a strike might be no more disruptive of
the performance of legal work than taking a two week[s’] vacation might be.” (Ibid.)
While the Court expressly found no need to approve or disapprove of the ABA
Committee’s position on strikes, the Court recognized that the Committee had adopted
“a realistic accommodation between an attorney’s professional obligations and the
rights he or she may have as an employee.” (Ibid.) Accordingly, the Court expressly
adopted the ABA Committee’s approach vis-à-vis an attorney’s assertion of such
rights in general, finding that an attorney only “oversteps ethical boundaries” if the
attorney “violates actual disciplinary rules, most particularly rules pertaining to the
attorney’s duty to represent the client faithfully, competently, and confidentially.” (Id. at
p. 552; accord County of San Bernardino (Office of the Public Defender) (2015) PERB

44
Decision No. 2423-M, p. 35 [public defenders have full MMBA rights, provided they do
not violate the California Rules of Professional Conduct].)
Thus, strikes by attorneys share an important characteristic with strikes by
physicians.11 Each attorney or physician must use professional judgment to assure
compliance with professional codes. Such consideration may lead to a range of
actions to protect clients or patients. This may include making alternate arrangements,
and indeed Gallo’s presentation identified one possibility the County has for new
clients arraigned during a strike: the Indigent Defense Program (IDP), which has a
contract with the County to represent clients “when the Public Defender’s office has a
conflict or otherwise cannot represent a client.” (https://kernbar.org/programs/idp/ [last
accessed July 30, 2025].) While Gallo lamented that IDP costs the County money, this
ignores that a fundamental purpose of a strike is to exert economic pressure by
imposing extra costs on the employer. (County of San Mateo, supra, PERB
Order No. IR-61-M, p. 25.)
11 We take administrative notice of our determination dated October 26, 2022,
in Case No. SF-CO-513-M. There, we partially granted and partially denied Santa
Clara County’s request for injunctive relief against a threatened strike by Valley
Physicians Group (VPG), a union representing physicians at the County’s three public
hospitals. Our determination included orders that: (1) VPG-represented physicians
could strike to the extent they had determined, and communicated to the County, that
rescheduling a patient’s appointment, surgery, or other procedure would not create a
substantial and imminent risk to the patient’s health or safety; while for those who
could not be safely rescheduled, the County had to make reasonable efforts to find a
replacement physician, but if the County was unsuccessful, the physician would
provide the care despite the strike; and (2) for inpatient services other than scheduled
procedures and surgeries, VPG would provide line passes to physicians at a sufficient
level that, when added to available replacements, staffing would be at the level
customarily assigned on Thanksgiving weekend.

45
In certain instances, an attorney (or a physician in a hospital strike) must
choose other options to protect ongoing clients or patients in the event of a strike. This
can include reasonable delays that will not harm the client or patient more than
standard delays in the industry might. In still other instances, where a delay would
pose an undue risk or burden, an attorney or physician may need to start their strike
late, end it early, come into work for a period in the middle, or forego striking
altogether.
Most importantly, the need for narrowly tailored line passes is not unique to
attorneys and physicians. For example, strikes by a variety of personnel who play
important roles in the criminal justice system (including district attorneys, public
defenders, court clerks, and court reporters) must protect the public in the sense of
allowing the justice system to comply with mandatory deadlines. Sometimes, this
requires one or more employees to refrain from striking in certain classifications,
depending on the availability of supervisors, managers, replacement employees, other
non-bargaining unit personnel, and bargaining unit employees that the union has
exempted from the strike or who have affirmatively indicated that they plan to work
during the strike. (See, e.g., San Mateo County Superior Court (2019) PERB Order
No. IR-60-C, p. 8 [no injunction warranted where union representing court personnel
voluntarily agreed to exempt from the strike sufficient personnel to protect the public];
Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB
Order No. IR-59-C, pp. 3-4 [declining to seek injunction against strike by court clerks
and court reporters where employer did not show that managers, supervisors, and
replacement court reporters were unable to cover essential work].)

46
Accordingly, while not every public defender can fully participate in every strike
for its entire duration, there is substantial leeway to strike to the extent that it is
possible to seek an appropriate continuance (as an attorney might do for vacations,
illnesses, or other reasons), and/or possible for management to avail itself of coverage
options including: use of supervisors, managers, overflow/conflict attorney panels, and
public defenders who the union has exempted from the strike or who have indicated
they will not strike. (See County of San Mateo, supra, PERB Order No. IR-61-M, p. 8
[discussing interplay between nature of services provided and availability of
contingency options].)
For instance, after the Sacramento County Attorneys’ Association (SCAA)
called a strike, Sacramento County public defenders struck from late August through
early September 2024.12 SCAA represents over 100 public defenders and supervisory
public defenders, but SCAA indicated to PERB that it had exempted from the strike
more than a dozen public defenders to whom it granted line passes to participate in
trials during the strike, as well to handle arraignments and preliminary hearings with
upcoming deadlines. Based on these line passes, as well as information indicating
that management had four non-striking management attorneys and could potentially
ask for assistance from the Conflict Criminal Defender panel if needed, the Board
denied the employer’s request for injunctive relief against the strike.
12 As noted at page 17, ante, the record includes filings in the injunctive relief
request that Sacramento County filed in Case No. SA-CO-168-M. That case remains
open, and the parties may still litigate it on the merits. We caution that we make no
conclusive findings regarding the facts of that case.

47
SEIU counsel specifically told the Commission about such options at the June
19 special meeting. Steele explained that in the event of a strike, SEIU would grant
line passes to certain attorneys so that others could strike without endangering client
interests or the public, just as SEIU does for a variety of classifications all over
California. Indeed, public defenders are akin to other county employees whose right to
strike is not absolute due to the critical work they do. This can include not only
physicians and certain court personnel, but multiple other county classifications whose
incumbents protect the public 24 hours per day, 365 days per year. (See County of
San Mateo, supra, PERB Order No. IR-61-M, pp. 10-21 & 26 [noting essential
functions requiring line passes to be issued to certain emergency dispatchers, prison
cooks, on-call hazardous materials and public works employees, group home
administrators, juvenile residential counselors, and child abuse and elder abuse
responders, while noting that employer could not obtain injunction against hospital
classifications that could have been replaced if employer had contracted with a
national striker replacement company].)
Unit 2 includes professionals whose work relates to critical areas such as
behavioral health, hazardous materials, and children and elder services. In the event
of a strike, line passes would be an issue for multiple Unit 2 classifications. Far from
separating public defenders’ interests from Unit 2, the issue ties them together.
In contrast, line passes would be unlikely to be an issue for investigators,
unless one of them had to testify or play another critical role in an ongoing trial during
a strike, and that role could not be performed by a supervisor or moved to a trial day

48
outside the strike period. Yet the Commission not only assumed that public defenders
cannot strike, it also apparently extended that assumption to investigators as well.
B. History of Employee Relations
The EERR separates this criterion into three sub-parts. We address each in
turn.
1. 	History in the Unit
No party contends that public defenders have ever been in any unit other than
Unit 2 or that investigators have ever been in any unit other than Unit 3. This structure
has facilitated stable collective bargaining for decades. Indeed, as discussed above,
employees in the Public Defender’s Office have successfully elected members to high
level union offices; those union officials have strongly advocated for their interests
through the existing unit structure, achieving numerous bargaining gains; and to the
extent there are further employment terms that could stand to be improved, that is
common for any classification and most often results from management resisting
based on cost or operational reasons.
Such history “is more important when employees have historically been in an
established unit—such as when we consider a severance petition—because under
those circumstances, maintaining continuity weighs against severance absent proof
that collective negotiations are incapable of addressing the needs of a discrete
minority within an existing unit.” (Monterey, supra, PERB Decision No. 2821-M,
pp. 18-19; see also Pasadena, supra, PERB Decision No. 2788-M, p. 10 [same]; Los
Rios, supra, PERB Decision No. 2587, p. 4, citing Livermore Valley Joint Unified
School District (1981) PERB Decision No. 165, p. 6 [“Negotiating history is of

49
particular importance when considering a severance request, as ‘a stable negotiating
relationship will not be lightly disturbed’”].) Here, then, the history of SEIU representing
public defenders and investigators in separate units—Unit 2 and Unit 3, respectively—
strongly favors SEIU’s position and undercuts CMEU’s Petition.
Yet, the Commission turned this basic precept upside down by putting the
burden on SEIU to show that public defenders and investigators at some point voted
in favor of SEIU representation. As discussed at pages 40-41, ante, that would be
impossible for virtually any American union at any public or private employer, as union
elections are unit-wide and individual ballots are entirely confidential.
2. 	History Among Other Employees of the County
As discussed above, district attorneys and child support attorneys together
make up a small bargaining unit (Unit P) that severed from Unit 2 in the 1990s. This
would be a better comparator for CMEU if it had petitioned for a unit of only public
defenders rather than a unit combining public defenders with investigators.
Recognizing that Unit P is not a strong comparator because it does not include
district attorney investigators, CMEU notes that district attorney investigators are
peace officers (unlike public defender investigators). CMEU then explains that this is
why they are in the Law Enforcement Unit together with other peace officers—to
comply with MMBA section 3508, which affords peace officers the right to be
represented in a unit consisting only of peace officers. However, CMEU ignores that
separating district attorneys from district attorney investigators is also consistent with
MMBA section 3507.3, which affords professionals the right to be represented in a unit

50
consisting only of professionals. Because Unit P protects this right while CMEU’s
proposed unit would not, Unit P is a problematic comparator for CMEU’s Petition.
The same is true of the County’s unit structure viewed more broadly, since its
present structure protects professional employees’ right under MMBA section 3507.3,
unlike CMEU’s proposal. As noted above, Goulart told the Commissioners that mixing
professional and technical employees is feasible, as there are MOUs that cover both
professional and technical units. But the record does not reflect any unit that contains
both professional and non-professional County employees. Such units are lawful but
inherently unstable (see ante at pp. 28-30), which helps to explain why the County has
no such units.
3. 	History in Similar Public Employment
The record reflects 29 counties with a public defender’s office, not one of which
combines public defenders and investigators into a single unit. This fact further
undercuts CMEU’s Petition. While Gallo cited 12 counties where public defenders are
in a unit that is not a county-wide professional unit, none of these units include
investigators, and some are broad attorney units that include other attorneys working
for the County. (See, e.g., City and County of San Francisco (2025) PERB Decision
No. 2958-M, p. 4 [bargaining unit comprised attorneys working in City Attorney’s
Office, the District Attorney’s Office, and the Public Defender’s Office] (judicial appeal
pending on other grounds].)
Moreover, Price expressed a view of these facts that is at odds with the record.
Specifically, he stated his interpretation that “other counties are moving” to public
defenders being “no longer part of SEIU.” Thus, he claimed, “a lot of count[ies’] public

51
defenders do not think they belong in an SEIU bargaining unit. It’s not just one. That’s
a lot.” However, for the 12 out of 29 counties that Price seems to be referencing, the
record does not show whether there are any in which public defenders severed
themselves from a broader unit. Thus, far from other counties moving in a particular
direction, those 12 counties may have all established separate attorney units from the
outset. Even were there a hypothetical county in which public defenders severed
themselves from a broader unit, such severance certainly did not involve investigators,
and there is no support for the notion that such hypothetical movement involved public
defenders rejecting SEIU. Rather, just as there is no evidence of any public defenders
voting to sever themselves from a broader unit, there is no evidence as to what union
may have represented such a broader unit. Thus, the record does not remotely
support Price’s conclusion that the record shows “a lot” of public defenders moving
away from SEIU; the record in fact shows no movement by public defenders away
from any broader units, whether represented by SEIU or any other union.13
C. Efficient Operation of the County and Sound Employer-Employee Relations
The third subordinate factor—efficient operation of the County and sound
employer-employee relations—is the one most closely aligned with the principal
criterion of finding the largest unit with a community of interest. As noted ante at
pages 24-33, efficiency and sound labor relations generally favor larger units, subject
13 Price’s misconception was rooted in Paine’s presentation to the Commission.
Paine said there is a “trend” of public defenders severing themselves from broader
units, but there is no such evidence. The only example Paine provided was the 1975
decision in Alameda, supra, 33 Cal.App.3d 825, but that decision involved initial unit
placement rather than a severance petition after decades of stable labor relations.

52
to certain statutory requirements such as affording professionals a right to be
represented separately from non-professionals.
In this case, the County currently has 15 bargaining units. Responding to a
commissioner’s question, Goulart confirmed that dealing with the existing number of
units already takes considerable time and effort. Creating a new, small unit for public
defenders and investigators would not only cause inefficiency by bringing the number
of units up to 16, but it would promote inefficient, unstable, and unsound labor
relations by virtue of two types of downstream effects.
First, granting CMEU’s Petition would establish an unprecedented new
standard for severance petitions, and would therefore lead to further successful
severance petitions from employees in other County departments that are just as
discrete, unique, and integrated as the Public Defender’s office.14
Second, while the County’s current unit structure protects professional
employees’ statutory right to be represented separately from non-professionals,
14 The County’s administrative structure includes dozens of departments. (See
https://www.kerncounty.com/government/departments [last accessed July 30, 2025].)
Taking just one as an example, what would prevent librarians (professional employees
who are in Unit 2, together with public defenders and other professionals) from
seeking to create a library unit that includes not only themselves but also library
associates, who are not in the professional unit? It can hardly be questioned that a
library department in virtually any county faces unique issues, including the fact that
today’s libraries often serve as de facto day shelters for unhoused individuals,
requiring library staff to regularly assist patrons in need of social services and
sometimes experiencing a crisis rooted in mental health disability, substance use
disorder, or other issues associated with homelessness. Giesler, “A Place to Call
Home?: A Qualitative Exploration of Public Librarians’ Response to Homelessness”
(2017) Journal of Access Services, Vol. 14, No. 4 [libraries “have been characterized
as de facto daytime shelters for the nation’s homeless”].)

53
granting the Petition would create instability by creating a mixed unit. As discussed at
pages 28-30, ante, such a unit is legal but creates an ongoing instability because
public defenders could file a future severance petition, invoking MMBA section 3507.3.
Precedent disfavors carving out such a smaller mixed unit even from another mixed
unit (Lodi, supra, PERB Decision No. 2142-M, adopting proposed decision at p. 12),
meaning it is even more disfavored to sever professionals from an “all professionals”
unit and place them in a new, small, unstable mixed unit.
Notably, section 3507.3 would tend to disfavor CMEU’s proposed small, mixed
unit even if more than half the public defenders had signed authorization cards,
thereby indicating they wished to give up for now their current representation in a unit
separate from non-professionals. This is true since the EERR would allow 30 percent
of the public defenders to file a new severance petition based on section 3507.3,
meaning such a petition could follow shortly after a vote in favor of CMEU’s severance
petition, even without any change in employee sentiment. And if there were even
slight changes in sentiment or employee turnover, this could easily mean a majority
favoring the CMEU unit could soon after vote to be separately represented.
Here, the issue is even more pressing, as a majority of public defenders did not
sign authorization cards. At the formal hearing before the ALJ, CMEU admitted that
only 26 public defenders signed authorization cards, out of 53 or 54 who would be in
the proposed unit. Thus, CMEU seeks a mixed unit election involving 9 investigators
and 53 or 54 public defenders, meaning that a majority of these 62 or 63 employees
could vote in favor of severance even while a majority of the public defenders wish to
continue availing themselves of their statutory right to maintain representation in a

54
professionals unit, as they have in Unit 2. In other words, CMEU’s Petition could
cause the County to violate section 3507.3, or at the very least would create instability
given the legal right set forth in that provision.
Price mentioned efficiency and sound labor relations in explaining his vote, but
he did not mention any of the above legal or factual considerations, failing to even
acknowledge that this factor and the EERR as a whole favor larger units. Instead,
Price said this factor favors severance in his view, because under the current
structure, the County “can’t keep talent in the department.” Not only does this badly
misinterpret the EERR, but it also has a very questionable prediction at its heart.
Specifically, Price assumed that a small unit of public defenders and investigators
would have better luck pressing management to accept the sort of proposals favoring
retention that SEIU has been pressing with the input of three elected public defenders
on the bargaining team. Price’s problematic assumption is irrelevant to this factor, but
the question of whether the current structure adequately represents public defenders
is relevant under the first factor—fullest freedom to exercise rights. As noted in our
discussion of that factor, there is no sound reason to believe that a smaller unit
automatically results in more effective representation for employees. As we also
noted, nothing in the record suggests that public defenders and investigators have
been “required to relinquish [their] issues regularly” to others represented in Unit 2 and
Unit 3. (LAUSD, supra, PERB Decision No. 1267, adopting proposed decision at
pp. 55-56.)

55
D. Duties, Skills, Educational Requirements, and Working Conditions
The EERR’s final subordinate factor, which comprises employee duties, skills,
educational requirements, and working conditions, matches established precedent in
that it focuses on inherent aspects of a position rather than employment terms and
conditions that are changeable through collective bargaining. (Monterey, supra, PERB
Decision No. 2821-M, p. 12.) We consider each aspect of this factor.15
1. 	Duties
Public defenders’ main duties are to: (1) represent clients in adult criminal and
juvenile delinquency and/or dependency matters, as well as in conservatorship,
mental health matters, mentally disordered offender matters, and sexually violent
predator matters; (2) interview and counsel clients; (3) prepare cases for pre-trial
hearings and trial by initiating and directing appropriate investigations, working to
engage necessary experts, and researching legal issues; (4) prepare for, brief, and
litigate pre-trial motions and hearings; (5) litigate jury trials; (6) perform interlocutory
appellate and limited post-conviction work, including motions to modify probation;
(7) prepare and litigate writs and habeas petitions; and (8) represent clients at parole
revocation hearings.
15 Because the EERR and precedent afford less weight to conditions that are
subject to bargaining, it matters little that Unit 2 and Unit 3 are presently subject to the
same MOU. To the extent this fact is relevant, it further undercuts CMEU’s position.
While CMEU finds it important that public defenders and investigators already work
under a common MOU, the same is true for all employees in Unit 2, Unit 3, and four
other SEIU-represented units. That circumstance thus does not show a narrow
community of interest that is so distinct and unique as to warrant disturbing stable
labor relations.

56
Investigators’ main duties are to: (1) locate prospective witnesses; (2) interview
clients, relatives, and prospective witnesses; (3) obtain witness statements and
recordings; (4) gather physical evidence and records, including from public and private
entities; (5) prepare reports, diagrams, charts, and scale drawings; (6) photograph
crime scenes and other items of evidence; (7) assist public defenders in arranging
appearances of witnesses at trial and other court hearings; (8) serve subpoenas; and
(9) testify in court.
These are substantial distinctions. CMEU counters that public defenders and
investigators perform symbiotic functions toward common goals, in that they are the
main classifications serving indigent criminal defendants. As part of this argument,
CMEU asserts that public defenders and investigators share a “constitutionally
mandated” status based on their purpose, their ability to sign subpoenas, their
coverage under the attorney-client privilege, and their ability to meet with clients
confidentially in jail.
CMEU’s argument, if accepted, would prove too much. While investigators and
public defenders play their respective roles in close coordination and toward a
common purpose, the same is true in other departments featuring classifications that
collaborate closely with one another. (See, e.g., page 52, fn.13 ante [discussing
librarians and library associates].) CMEU’s mix-and-match severance petition cannot
be appropriate merely because two classifications collaborate more closely with one
another than they do with other classifications in their units.
At the June 19 special meeting, Bone attempted to make such an argument,
pointing out that investigators lack a common interest with surgical technicians. Even

57
setting aside that Bone ignored closer comparators in Unit 3 such as crime scene
technicians and investigative technicians, and further setting aside that Kern County
Medical Center became a separate employer from the County more than 10 years ago
(County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M,
p. 3), Bone’s example illustrates the larger problem with CMEU’s argument. By the
same logic, for instance, veterinarians and veterinary assistants would have the right
to sever themselves from Unit 2 and Unit 3, respectively, to form a new unit composed
only of veterinary employees.
CMEU’s position in this case would thus destabilize public sector labor relations
by fragmenting public entities’ labor force into far more bargaining units than currently
exist. This argument is contrary to the principles explained at pages 23-24, ante.
Accordingly, while it is relevant that public defenders and investigators have quite
distinct duties, and it is also relevant that these duties are interdependent and mutually
reinforce one another, neither of these countervailing considerations is determinative.
Rather, weighing all relevant record evidence, we do not find that the two
classifications’ community of interest is so separate and distinct from the employees’
established units that collective bargaining is incapable of addressing the needs of a
discrete minority within the existing unit.
2. 	Skills
Public defenders must know and understand: (1) all operative legal principles
and practices relevant to criminal law and procedure, as well as significant aspects of
constitutional, civil, and administrative law; (2) trial procedures and rules of evidence;
and (3) legal research, writing, oral argument, and witness examination techniques.

58
They must also be able to: (1) clearly, logically, and persuasively advocate both orally
and in writing; (2) prepare clients and witnesses for trial; (3) examine and cross
examine witnesses; (4) advise clients regarding options to plea or go to trial, as well
as regarding pretrial incarceration issues, sentencing issues, and multiple civil,
criminal, immigration-related, and practical consequences of all choice in these areas;
and (5) effectively and efficiently represent a high volume of clients under intense
time-pressure based on multiple overlapping deadlines that are not within their control.
Investigators must know and understand: (1) investigative principles,
procedures, and methods in criminal cases, including how to secure and prepare
exhibits; (2) certain aspects of arrested suspects’ rights and related rules of evidence;
and (3) procedures and methods for handling, examining, and testing items of
evidence. They must also be able to: (1) observe, recall, and relate details from
alleged crime scenes and witness interviews; (2) prepare and present written and oral
reports; (3) accurately gather evidence and assist attorneys in analyzing evidence and
the overall case; and (4) operate cameras, recording devices, and other equipment.
Lastly, they must possess effective interpersonal communication skills and sound
judgment in investigative situations.
As was the case with respect to duties, public defenders and investigators
primarily have different skills. While their skills are complementary and allow them to
work toward a common purpose, that is akin to professional and technical employees
in other departments and is not a basis for finding a community of interest that is so
separate and distinct from the employees’ established units that collective bargaining
is incapable of addressing the needs of a discrete minority within the existing unit.

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Indeed, the list of other Unit 3 titles includes multiple classifications that show why
investigators are logically placed in Unit 3, including: child support officers, crime
scene technicians, investigative technicians, law clerks, patient rights advocates,
probation program specialists, probation technicians, paralegals, various sheriff’s
office titles, substance use disorder specialists, and victim/witness services
specialists. Moreover, because public defenders are the highly trained professionals
who are responsible for protecting their clients’ welfare based on professional codes of
ethics, their role is akin to that of various titles in Unit 2, including psychiatrists, social
workers, and therapists.
3. 	Educational Requirements
Public defenders must obtain a license to practice law from the California State
Bar. In most instances, this requires not only passing the California bar exam and
associated application requirements, but also obtaining a bachelor’s degree followed
by a juris doctor degree from an accredited law school. In contrast, investigators may
have only a bachelor’s degree, or need not even have that level of education, if they
have criminal investigative experience. The only license they must hold is a driver’s
license. Accordingly, the educational requirements for the two classifications are quite
different and strongly undercut CMEU’s proposed unit.
4. 	Working Conditions
Whereas public defenders and investigators are more different than similar in
their duties, skills, and educational requirements, working conditions tilts in the
opposite direction. However, this unsurprising fact is a reality in public agency
departments, where professional and non-professional employees working in the

60
same locations, under common management, often experience comparable
conditions. Such common conditions do not undercut the preference for the largest
feasible unit with a community of interest, as it does not show that collective
bargaining is incapable of adequately serving public defenders within Unit 2 and
investigators within Unit 3. (See, e.g., Pasadena, supra, PERB Decision No. 2788-M,
pp. 13-14 [severance petitioner did not meet burden despite showing that non-sworn
police department employees “share a common, unique work environment,” including
“a 24/7 operation,” a “common chain of command within a para-military organization,”
and “uniquely demanding working conditions” that involves emotional trauma from
handling dispatch calls, physical risks of certain law enforcement tasks, and work on
nights, weekends, and holidays].)
Moreover, CMEU failed to support significant aspects of its argument regarding
working conditions. For instance, Pierce argued to the Commission that public
defenders and investigators are unique because they experience “challenging
situations dealing with mental health, homelessness, going into high crime areas and
gang-related areas,” “can come into contact with hostile people,” and have their lives
“essentially put into danger,” while other Unit 2 and Unit 3 employees do not
experience “anything like that.” But Pierce failed to go through the bargaining unit
classifications and provide evidence supporting his belief. For instance, he provided
no comment on Unit 2 and Unit 3 employees in other classifications working with
clients experiencing homelessness and mental health issues, or those who perform
house visits or otherwise work in the community or other potentially dangerous
circumstances. This may include Unit 2 professionals such as behavioral health

61
nurses and therapists, clinical psychologists, mental health physicians, nurse
practitioners, psychiatrists, public health nurses, and social service workers, as well as
Unit 3 technical employees such as building and housing inspectors, code compliance
officers, correctional staff nurses, crime scene technicians, fire plan inspectors, fire
prevention inspectors, mental health technicians, and other health and human
services employees.
Pierce also stated that public defenders’ hours can be lengthy, especially during
a jury trial. While Pierce claimed this distinguishes public defenders from other
professionals, he failed to adequately support this point. Attorneys and other
professionals (unlike investigators) are exempt from overtime and normally must work
until their tasks are complete without extra pay, no matter the number of hours. CMEU
attempted neither to quantify public defenders’ hours nor to compare such work hours
with those of other Unit 2 professionals and prove that public defenders’ hours are
unique. Moreover, even assuming for the sake of argument that public defenders work
far more hours than all other Unit 2 professionals, such a fact would not support a
community of interest between public defenders and investigators.
Price claimed that recruitment and retention issues support CMEU’s Petition,
asserting that the Public Defender’s Office “can’t keep talent in the department.” But
this issue in fact undercuts CMEU’s community of interest argument because CMEU
admitted at the June 19 special meeting that the County only experiences retention
challenges for public defenders, not investigators. And the retention issue ties public
defenders to other Unit 2 professionals. Indeed, the MOU between SEIU and the
County showed a concerted effort to overcome recruitment and retention issues

62
among public defenders and other Unit 2 titles such as Behavioral Health Nurses,
Public Health Nurses, and Social Service Workers.
For the foregoing reasons, the EERR and MMBA do not permit the severance
that CMEU seeks.
III. 	The Commission’s Waiver Defense
The Commission asks us to find that SEIU waived any argument against the
unit determination. The Commission does not claim this waiver occurred on appeal,
instead acknowledging that SEIU’s exceptions specifically assert that the ALJ erred in
failing to find the Commission’s unit determination unreasonably applied the EERR
and violated the MMBA. Rather, the Commission points to the proposed decision,
where the ALJ claimed that SEIU only addressed the applicable unit criteria in a single
lengthy paragraph on pages 34-35 of its post-hearing brief, as part of arguing that the
Commission violated the PEDD.16
PERB favors hearing cases on their merits (County of San Joaquin (2021)
PERB Decision No. 2761-M, p. 21), and here SEIU did not waive its challenge to the
Commission’s unit determination. First, even had the ALJ correctly identified the
extent to which SEIU addressed the unit determination factors, that lengthy paragraph
16 The ALJ did not address the unit criteria in the PEDD context, either, instead
concluding that the Commission only qualifies as an employer under the MMBA but
not under the PEDD. To the contrary, however, any entity that constitutes an MMBA
employer is automatically a PEDD employer. (PEDD, § 3522(c); El Camino Healthcare
District, et al. (2023) PERB Decision No. 2868-M, p. 4, fn. 5.) The ALJ thus erred in
finding that the PEDD does not cover the Commission. But as discussed ante at page
3, we exercise our discretion not to resolve the PEDD claim.

63
was sufficient to preserve the issue. In any event, SEIU addressed the unit
determination in its opening argument as well as in two earlier segments of its brief.
In its opening statement, SEIU asserted that the Commission applied all the
unit factors improperly, provided examples from the transcript of the Commission’s
June 19 special meeting, and noted that the transcript contains further similar
examples. Moreover, the sections of SEIU’s post-hearing brief dealing with unit criteria
amounted to approximately five pages. In one such section, about 18 pages before
the paragraph the ALJ identified as constituting SEIU’s sole argument regarding unit
criteria, SEIU specifically addressed Price’s misapplication of the EERR’s subordinate
factors, arguing that Price mischaracterized each factor. Among the examples SEIU
addressed there was the fact that Paine and Gallo “presented a distorted picture” of
the right to strike, which Price improperly accepted. Indeed, SEIU noted that County
Counsel was present, but the Commission never asked for a legal opinion. SEIU
further noted that when Steele tried to correct Price’s misapprehension, he blithely
pivoted and said that if public defenders and investigators misapprehended their right
to strike, that still warranted severance under the first subordinate factor (full freedom
to exercise rights).
In the next paragraph, SEIU’s brief raised another example, challenging Price’s
approach to the second subordinate factor (history of employee relations). Specifically,
SEIU noted that Price should not have accepted the “unsubstantiated claim that
employees never selected SEIU Local 521.” As a third example, SEIU’s brief
explained how the Commissioners missed key evidence regarding “the ability of the
Public Defender’s Office employees to participate in Chapter leadership and on the

64
bargaining team, meaningfully participate in contract negotiations, and have their
concerns heard.”
Furthermore, in an earlier section of the post-hearing brief, SEIU noted an even
broader array of unit determination facts that weigh against severance,
including: (1) public defenders and investigators have very different duties, hours of
work, skills, education, and training; (2) Pierce had no personal knowledge when he
claimed that no other Unit 2 or Unit 3 employees deal with mental health issues,
homelessness, and working in high-crime areas; (3) Gallo’s evidence about other
counties failed to show that there has ever been even a single employer, anywhere,
that has grouped public defenders and investigators into one bargaining unit;
(4) Gallo, Paine, and the Commissioners were wrong in their assumptions about the
right to strike; (5) it misunderstands labor law to expect there to be evidence that
public defenders and investigators at some point voted in favor of SEIU representation
on a classification-by-classification basis; and (6) employees in the Public Defender’s
Office have successfully elected three members to high level union offices, and those
union officials have strongly advocated for their interests through the existing unit
structure.
Accordingly, we cannot find that SEIU waived its challenge to the Commission’s
unit determination. While testimony at the formal hearing focused on other allegations
in the complaint, that was because the record already contained not only the transcript
of the Commission’s special meeting but also all the documents submitted to the
Commission during that meeting. This record already overwhelmingly proved that

65
CMEU’s proposed severance violates the MMBA and EERR, which explains why the
formal hearing focused on other issues.
IV. 	Remedy
The Legislature has vested PERB with broad authority to decide what remedies
are necessary to effectuate the MMBA and other acts we enforce. (MMBA, § 3509(b);
Mt. San Antonio Comm. College Dist. v. Public Employment Relations Bd.
(1989) 210 Cal.App.3d 178, 189.) When a charging party successfully challenges an
MMBA employer’s representation decision, we must direct the employer to cease
applying its unlawful decision and to instead act consistently with our decision.
(Monterey, supra, PERB Decision No. 2821-M, p. 22 [directing county to grant unit
modification petition and cease and desist from unreasonably applying local rules];
City of Long Beach (2021) PERB Decision No. 2771-M, p. 20 [directing city to process
decertification petition in a manner consistent with PERB’s decision]; Salinas Valley
Memorial Hospital District (2020) PERB Decision No. 2689-M, p. 39 [directing hospital
district to grant petition for recognition and cease and desist from unreasonably
applying local rules].)
Here, CMEU’s Petition sought an outcome that is inconsistent with the EERR,
the MMBA, and precedent. Accordingly, beyond the cease-and-desist order that the
ALJ ordered (which no party challenged), we direct the County to dismiss the Petition
and the Commission to cease and desist from finding CMEU’s proposed new unit to
be appropriate.17
17 After the County dismisses the Petition, SMCS shall close its pending
representation proceedings in this matter without holding an election.

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ORDER
Based upon the foregoing and the entire record in this case, the Public
Employment Relations Board (PERB) finds that in determining that Constitutionally
Mandated Employees’ Union Local 148 (CMEU) sought an appropriate unit in its
severance petition (Petition), and in determining to schedule a severance election
based on the Petition, the County of Kern and Kern County Civil Service Commission
violated the County’s Employer-Employee Relations Resolution (EERR), PERB
Regulation 32603(a), (b) and (g), and sections 3509(b) and 3506.5(a)-(b) of the
Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq.
Pursuant to MMBA section 3509(b), it is hereby ordered that:
A. 	The Kern County Civil Service Commission, its governing body, and its
representatives shall cease and desist from:
1. 	Interpreting the EERR as warranting a new bargaining unit
consisting of Deputy Public Defenders and Public Defender Investigators.
2. 	Interfering with the employee rights that the MMBA protects.
3. 	Denying Service Employees International Union Local 521 (SEIU)
rights guaranteed to it by the MMBA.
B. 	The County of Kern, its governing body, and its representatives shall:
1. 	Within 10 workdays after this decision is no longer subject to
appeal, dismiss CMEU’s Petition seeking to sever Deputy Public Defenders from the
County’s Professional Unit, sever Public Defender Investigators from the County’s
Technical Services Unit, form a new unit comprising the severed classifications, and
become the exclusive representative of the proposed new unit.

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2. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all work locations where notices to employees in Unit 2 and Unit 3 are
posted, copies of the Notice attached hereto as an Appendix. An authorized agent of
the County must sign the Notice, indicating that the County will comply with the terms
of this Order. The County shall maintain the posting for a period of 30 consecutive
workdays. The County shall take reasonable steps to ensure that the Notice is not
reduced in size, altered, defaced or covered with any other material. In addition to
physically posting this Notice, the County shall communicate it by electronic message,
intranet, internet site, and other electronic means it uses to communicate with
employees in Unit 2 and Unit 3.
3. 	Notify OGC of the actions the County has taken to follow this
Order by providing written reports as directed by OGC and serving such reports on
SEIU, the Commission, and CMEU.
Chair Banks and Member Paulson joined in this Decision.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-1718-M, Service Employees
International Union Local 521 v. County of Kern and Kern County Civil Service
Commission, in which all parties had the right to participate, the Public Employment
Relations Board (PERB) found that in determining that Constitutionally Mandated
Employees’ Union Local 148 (CMEU) sought an appropriate unit in its severance
petition (Petition), and in determining to schedule a severance election based on the
Petition, the County of Kern and Kern County Civil Service Commission violated the
County’s Employer-Employee Relations Resolution, PERB Regulations, and the
Meyers-Milias-Brown Act, Government Code section 3500 et seq.
As a result of this finding, PERB has directed us, and we will, dismiss CMEU’s
Petition.
Dated: _____________________ 	County of Kern
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.