Los Rios Community College District (PERB A442E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LOS RIOS COMMUNITY COLLEGE DISTRICT,
Employer,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1021,
Exclusive Representative.
Case No. SA-UM-848-E
PERB Order No. Ad-442
October 26, 2016
Appearances: Weinberg, Roger & Rosenfeld by Matthew Gauger, Attorney, for Service
Employees International Union, Local 1021; Littler Mendelson by Bruce J. Sarchet, Attorney,
for Los Rios Community College District.
Before Winslow, Banks and Gregersen, Members.
DECISION
GREGERSEN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Service Employees International Union, Local 1021 (SEIU)
from the Office of the General Counsel’s dismissal (attached) of its unit modification petition.
The petition sought to divide the existing Maintenance/Operations and Campus Police Officers
Unit (Support Services Unit), which SEIU currently represents, and create a separate police
officer unit at the Los Rios Community College District (District).
The Board has reviewed the entire record in this matter, including the unit modification
petition filed by SEIU, the District’s response to the petition, the Office of the General
Counsel’s dismissal, SEIU’s appeal, and the District’s response to the appeal. We find the
dismissal to be well reasoned and in accordance with applicable law, and therefore adopt it as
the decision of the Board itself subject to a brief discussion of SEIU’s appeal below.

________________________
BACKGROUND
SEIU is the exclusive representative for the current Support Services Unit at the
District. The established unit was certified as an appropriate unit by PERB’s predecessor, the
Educational Employment Relations Board (EERB),1 on June 17, 1977.
On March 10, 2016, SEIU filed a unit modification petition pursuant to PERB
Regulation 32781(a)(2)2 seeking to carve out a separate police officer unit from the established
Support Services Unit. Prior to filing the unit modification petition, SEIU contacted the
District to request that the District voluntarily modify the unit, but the District denied SEIU’s
request.
On March 25, 2016, the District filed a response to the petition disputing the
appropriateness of the proposed unit.
On April 22, 2016, the Office of the General Counsel sent a letter to SEIU requesting
further information to support its petition for a separate police officer unit including any
information demonstrating that the public safety officers share a community of interest
separate and distinct from other employees in the Support Services Unit. The letter also
requested that SEIU identify the specific police officer titles/classifications/positions sought to
be included in the proposed unit.
On August 1, 2016, SEIU responded simply by stating that its position remained the
same as stated in its original unit modification petition.
1 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

On August 5, 2016, the Office of the General Counsel dismissed the petition, finding
that SEIU failed to meet its burden in providing sufficient facts for PERB to determine the
appropriateness of the proposed unit. SEIU filed a timely appeal to which the District filed a
timely opposition.
DISCUSSION
In Sweetwater Union High School District (1976) EERB Decision No. 4 (Sweetwater),
the Board established three presumptively appropriate bargaining units for classified
employees of school districts including: (1) an operations-support services unit, (2) an
instructional aides (paraprofessional) unit; and (3) an office-technical and business services
unit. There is no dispute that the current Support Services Unit is an operations-support unit
and is therefore a presumptively appropriate bargaining unit under Sweetwater. (Ibid.;
Foothill-DeAnza Community College District (1977) EERB Decision No. 10.)
When a petition is filed to carve out a smaller unit from a presumptively appropriate
Sweetwater unit, the burden is on the petitioner to show that the requested unit is more
appropriate. (Temple City Unified School District (1995) PERB Decision No. 1110; San Juan
Unified School District (1995) PERB Decision No. 1082.) To determine whether the burden
has been met requires weighing the community of interest among employees, the efficiency of
employer operations and established practices. (Ibid.)
The Office of the General Counsel dismissed the unit modification petition finding that
SEIU had, despite being requested to, failed to provide sufficient facts for PERB to make a
unit determination regarding the appropriateness of the proposed unit. SEIU failed to identify
the specific police officer titles/classifications/positions it sought to include in the proposed
police officer unit. SEIU also failed to describe the specific duties of the disputed positions, or
3

provide any information that would demonstrate that the police officers shared a community of
interest separate and distinct from other employees in the Support Services Unit. As such,
SEIU provided insufficient evidence to meet its burden of showing that its proposed unit is
more appropriate than the current unit.
On appeal, SEIU provides no explanation for its failure to provide information.
Instead, it cites only to Sacramento City Unified School District (1977) EERB Decision No. 30
(Sacramento City USD), arguing that PERB has previously accepted non-Sweetwater
bargaining units.
In Sacramento City USD, supra, EERB Decision No. 30, without objection from the
employer, PERB found a separate security unit to be appropriate based on policy
considerations that the employer was entitled to a nucleus of “protection employees” to enforce
its rules and protect its property. The Board did so only after having examined the duties
performed by the security officers. In its appeal, however, SEIU does not request that PERB
conduct an examination of the duties performed by the disputed positions, nor does it provide
any evidence to examine. Instead, SEIU requests only that the Board expand its decision in
Sacramento City USD and allow police officers to be automatically carved out of an existing
mixed unit when the request is made by an incumbent union. SEIU suggests that the Board
undertake such action as a policy determination and overturn the Office of the General
Counsels’ decision “in the interest of free choice and democracy.”
In support of its argument, SEIU states that with a unit modification petition filed by an
incumbent union, any concern over proliferation of units should be much lower and that an
incumbent union is more likely to “be acting in response to the needs of its own members.” In
addition, SEIU contends that granting the unit modification requested by an incumbent union is
4

more likely to have no negative impact on the stability of labor relations or the ability to
negotiate future contracts and other Sweetwater interests. SEIU, however, provides no
empirical evidence to support such claims.
We are not persuaded by SEIU’s argument. Carving out police officers from the
existing unit and forming a new unit would increase the total number of units in the District
from four to five. This is the definition of proliferation, and we find nothing in SEIU’s
argument to support the proposition that this should be a lesser concern simply because it is the
incumbent union seeking to establish the unit, as opposed to a rival union. It is equally unclear
how granting the unit modification would be less likely to have a negative impact on the
stability of labor relations.
We decline to follow SEIU’s suggestion to take this opportunity to make a policy
determination that a unit modification can be granted based on the sole fact that an incumbent
union has filed the petition. Therefore, because the existing unit was a presumptively
appropriate unit under Sweetwater and because SEIU alleged no facts establishing that its
proposed unit is more appropriate than the current unit, the Office of the General Counsel
properly dismissed the unit modification petition.
ORDER
The unit modification petition in Case No. SA-UM-848-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Winslow and Banks joined in this Decision.
5

STATE OF CALIFOm',lA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacrmnento, CA 95811~4124
Telephone: (916) 322-3 I 98
Fax: (916) 327-6377
August 5, 2016
Matthew Gauger, Attorney
Weinberg, Roger & Rosenfeld
428 J Street, Suite 520
Sacramento, CA 95 814-2341
Re: 	Los Rios Community College District
Case No. SA-UM-848-E
DISMISSAL LETTER
Dear Mr, Gauger:
EDMUND G. BROWN JR., Governor
As you know, a unit modification petition (petition) pursuant to PERB Regulation 3278l(a)(2)1
was filed with the Public Employment Relations Board (PERB or Board) on March 10, 2016,
by Service Employees International Union, Local 1021 (SEIU). The petition seeks to divide
the existing Maintenance/Operations and Campus Police Officers Unit (Unit) that SEIU
currently represents, and create a separate police officer unit.
The Los Rios Community College District (District) filed a response to the petition dated
March 24, 20 I 6, where it disputes the appropriateness of the proposed unit on several grounds.
The District asserts first that the petition should be dismissed because the established Unit is
presumptively appropriate under Sweetwater Union High School District (1977) EERB Case
No. 37 (Sweetwater),2 and the petition does not allege a change in circumstances. The District
notes that the description of the established Unit is described under the parties' collective
bargaining agreement and that the Unit was certified by PERB' s predecessor, the EERB, on
June 17, 1977.
The District next asserts that granting the petition will lead to proliferation of bargaining units,
where there are currently four units. The District further asserts that there exists a long and
stable bargaining relationship, 	SEIU was recognized as the exclusive representative of the unit
including police officers in 1977, nearly 40 years ago. For this reason, argues the District,
there also can be no showing of dissatisfaction by police officers with the current
representative.
1 PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq., and may be found at www.perb.ca.gov.
2 Prior to January 1978, PERB was !mown as the Educational Employment Relations
Board or EERB.

SA-UM-84S-E
August 5, 2016
Page 2
In a letter dated April 22, 2016 (April 22 Letter), the undersigned Board agent noted that the
established Unit appears to be a presumptively appropriate Sweetwater unit. (Sweetwater,
supra, EERB Decision No. 4; Foothill-DeAnza Community College District ( 1977) EERB
Decision No. 10.) As a strong community
of
interest normally exists among the presumptively
appropriate Sweetwater classified units, when a petition is filed to divide out a smaller unit
from a presumptively appropriate Sweetwater unit, the burden is on the petitioner to show that
the requested unit is more appropriate. (Temple City Unified School District (1995) PERB
Decision No. 1110; San Juan Unified School District (1995) PERB Decision No. 1082.)
In the April 22 Letter, SElU was requested
to
provide further information that would support
the petition, including information that would demonstrate that the police officers share a
community
of
interest separate and distinct from other employees within the established Unit.
SEIU was also requested to identify the specific public safety officers classifications sought to
be included in the proposed
unit
	The letter further advised that any response and information
provided should be supported by declarations under penalty
of
perjury by witnesses with
personal knowledge,
Jn
its response dated August 1, 2016,3 SEIU asserts that its position regarding the petition is
the same as its February 10, 2016 request to the District's Vice Chancellor
of
Human
Resources, which was attached to the petition, for the creation
of
a separate police officer unit.
While acknowledging the District's position that the existing Unit is appropriate under
Sweetwater, SElU asserts that PERB has recognized non-Sweetwater units and that the
division
of
the established Unit to create a separate police officer unit is permissible under
Sacramento Unified School District ( 1977) EERB Decision No. 30 (Sacramento USD). 	SEIU
notes that in Sacramento USD, though the employees in the unit where originally called
deputized security officers, these employees eventually became peace officers under Penal
Code section 830.32. SEIU represented that unit for approximately 25 years.
The Board in Sacramenlo USD considered multiple requests for initial recognition and
determined appropriate bargaining units for the classified employees
of
the District, including
school security officers. In Sacramento USD, the Board held that a separate securiLy officer
unit was appropriate based on policy considerations-supported by NLRB
decisions-
that the
employer in that case was entitled
to
a nucleus of "protection employees" to enforce its rules
and protect its property. (Sacramento USD, supra, EERB Decision No. 30, p. 6.) However,
the Board also examined the duties performed by the security officers in finding that a separate
unit was appropriate. In the instant case, there are no facts to describe the specific duties
of
the
disputed positions. Additionally, unlike the present case, the employer in Sacramento USD did
not oppose a separate peace officer unit. (Id. at p. 5.)
The April 22 Letter requested that SEIU provide the information in support
of
the
petition by May 6, 2016. In following up with SEIU regarding the status of its response, the
undersigned Board agent was advised on June 6, 2016, that counsel for SEIU was on vacation
and would be returning on approximately June 27, 2016.

SA-CM-848-E
August 5, 2016
Page 3
Given that there is no presumption that a separate peace officer unit is appropriate, the
petitioner has the burden to show that the requested unit is more appropriate than the
presumptive Sweetwater unit. (Temple City Un/fied School District, supra, PERB Decision
No. 1110; San Juan Unified School District, supra, PERB Decision No. 1082.) This burden
has not been satisfied and having investigated the petition pursuant to PERB Regulation
32786, there are insufficient facts for PERB to make a unit determination regarding the
appropriateness
of
the proposed unit. Accordingly, the petition is denied, and this case is
hereby dismissed, without prejudice.
Right
of
A~
An appeal
of
this decision to the Board itself may be made within ten (10) calendar days
following the date
of
service
of
this decision. (Cal. Code Regs., tit. 8, § 32360.) To be timely
filed, the original and five (5) copies
of
any appeal must be filed with the Board itself at the
following address:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
A document is considered '·filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit.
8, §§ 32135, subd. (a) and 32130; Gov. Code,§ 11020, subd. (a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Faesimile Transmission Cover Sheet which meets the requirements
of
PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8,
§ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit.
8,
§§
32090 and 32130.)
The appeal must state the specific issues
of
procedure, fact, law or rationale that are appealed
and must state the grounds for the appeal (Cal. Code Regs., tit. 8, § 32360, subd. (e)). An
appeal will not automatically prevent the Board from proceeding in this case. A party seeking
a stay
of
any activity may file such a request with its administrative appeal, and must include
all pertinent facts and justifications for the request (Cal. Code Regs., tit. 8, § 32370).
If a timely appeal is filed, any other party may file with the Board an original and five (5)
copies
of
a response to the appeal within ten (10) calendar days following the date
of
service
of
the appeal (Cal. Code Regs., tit. 8, § 32375).
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding and on the Sacramento Regional Office regional office. A "proof of service" must
accompany each copy of a document served upon a party or filed with the Board itself (see

SA-UM-848-E
August 5, 2016
Page 4
Cal. Code Regs., tit. 8, § 32140 for the required contents). The document will be considered
properly "served" when personally delivered or deposited in the mail or deposited with a
delivery service and properly addressed. A document may also be concurrently served via
facsimile transmission on all parties to the proceeding. (Cal. Code Regs. , tit. 8, § 32135, sub d.
(c ).)
Sincerely,
Ronald Pearson
Senior Regional Attorney
RP
cc: 	Ryan Cox, Associate Vice Chancellor, Human Resources