Modesto Irrigation District (PERB 1768M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SPENCER TACKE,
Charging Party,
v.
MODESTO IRRIGATION DISTRICT,
Respondent.
Case No. SA-CE-267-M
PERB Decision No. 	1768-M
June 	10, 	2005
Appearances: 	Spencer Tacke, on his own behalf; Scott T. Steffen, Assistant General Counsel,
for Modesto Irrigation District.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Spencer Tacke (Tacke) of a Board agent's dismissal of his
unfair practice charge. 	The unfair practice charge alleged that the Modesto Irrigation District
(District) violated the Meyers-Milias-Brown Act (MMBA)1 by placing senior engineers in a
bargaining unit with nonprofessional employees. 	Tacke alleged that this conduct constituted a
violation of MMBA section 3507.3.
The Board has reviewed the entire record in this matter, including the District's
response to the unfair practice charge, Tacke's position statement, the amended unfair practice
charge, the District's response to the amended unfair practice charge, the Board agent's
warning and dismissal letters, Tacke's appeal and the District's response to Tacke's appeal. In
light of our review, the Board affirms the dismissal consistent with the discussion below.
MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
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BACKGROUND
On August 10, 2004, the District's Board of Directors amended the District's Employer
Employee Relations Resolution (EERR), placing District job classifications into three
bargaining units. 	Senior engineers were placed into the Professional and Supervisory unit. In
the original charge, Tacke asked that senior engineers be placed into the Management and
Confidential unit or alternatively, a fourth unit consisting solely of professional employees.
In its response to the charge, the District agrees that professional employees are entitled
to a separate unit under MMBA section 3507.3 and EERR section 8.2.f.2 but asserts that
requests for such a unit must be made pursuant to EERR section 8D.3 Neither Tacke nor any
other employee has made such a request. Under EERR Section 8D, one employee cannot
require the District to put him in a separate bargaining unit. The District also argues that
professionals should not be included in the Managerial and Confidential unit. 	The District
states that it would acknowledge a separate unit of professional employees if there was
sufficient numerical support for such a unit.
Tacke filed a position statement disputing some of the District's points. Tacke was
unable to locate EERR section 8.2.f. 	He asserts that EERR section 8D applies to formation of
The appropriate citation for this section is EERR section 13A.2.f, which states:
Professional employees shall not be denied the right to be
represented separately from non-professional employees.
3EERR section 8D provides:
When an employee organization found to be appropriate submits
to the Employee Relations Officer a statement that it represents at
least 30% but not more than 50% of the employees in the
bargaining unit, the Employee Relations Officer shall arrange for
a secret ballot election through the neutral third party, or division
of Conciliation . . . the Employee Relations Officer may exercise
discretion not to have an election, but may designate the
employee organization as the Exclusively Recognized Employee
Organization for the bargaining unit.
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employee organizations, not bargaining units. He further believes that under MMBA section
3507.1, the District has discretion to include professionals in the managerial unit but has
chosen not to.
In the warning letter, the Board agent indicated that MMBA section 3507.3 protects the
right of professional employees to be represented separately from nonprofessional employees.
However, he concluded that Tacke had not provided evidence that professional employees had
sought separate representation from a labor organization other than the two unions now
representing the District employees or that the District had denied professional employees that
right. 	Further, Section 3507.3 does not prohibit professional employees from being
represented in a unit including nonprofessionals nor does it provide a right for employees to
opt out of union representation when there is no separate professional employees' units.
Tacke filed an amended charge, disagreeing with the Board agent's conclusion that he
provided no facts showing that professional employees have sought to be separately
represented. 	He indicated that on September 10, 2004, fourteen professional employees signed
and submitted a petition to the District asking that it "honor our right, as defined by Section
3507.3, not to be placed in the same bargaining unit with non-professional employees" and that
the professional employees be placed instead in the "Management/Confidential group, and
further request that the undersigned be treated identical (sic) to those already placed in the
Management/Confidential group." The petition, which is attached to the amended charge, also
noted, that "This Petition should in no way be interpreted to single out the undersigned
individuals as a separate bargaining unit." On September 14, 2004, John Gronholt (Gronholt),
District assistant general manager for human resources, responded by memo that the petition to
be placed in the Management/Confidential group was not appropriate however the request fell
within the EERR and met the requirements for separating professional employees from the
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Professional and Supervisory bargaining unit. 	Gronholt stated that he "was tasked" to provide
written notice to the affected employee organizations, hold a hearing, and then make a
determination on the composition of the unit consistent with the EERR and the MMBA. 	On
December 6, 2004, eight professional employees submitted a second petition. 	That petition
requests that the employees be placed in a separate bargaining unit.
The District counters that MMBA does not authorize transferring professional
employees from one nonprofessional unit to another, as opposed to a separate unit. Tacke and
other professional employees had petitioned on September 14, 2004 to be placed in the
Management/Confidential Group. The District agrees with the Board agent that there is no
evidence that Tacke or other professional employees have sought to be represented in a
separate professional unit. Tacke and other employees did petition to be represented in a
separate professional unit on December 6, 2004; however, that petition was untimely under the
EERR because it was not filed between 120 days and 90 days before the expiration of the
effective Memorandum of Understanding (MOU). 	The Board agent did not address this
petition in the warning letter dated December 31, 2004.4
The Board agent determined that neither petition met the requirements of Section
3507.3. The September petition requested that the employees be treated the same as
management/confidential employees and that the petitioners did not wish to be in a separate
unit. The December petition requested that the employees be placed in a separate unit but did
On January 19, 2005, after the dismissal was issued on January 13, Tacke responded to
the District noting that Gronholt never followed through with his statement that he would
notify employee organizations and hold a hearing. 	Although Gronholt stated that the
December petition was untimely, the only reason that petition was filed was because Gronholt
did not timely process the September petition for a professional unit as stated in his September
14 memo. When the December petition was filed, there was no MOU between the District and
International Brotherhood of Electrical Workers, the employee organization, and thus the
"open period" defined in the District EERR may not be applicable.
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not request that employees be "represented separately from nonprofessional employees by a
professional employee organization" as required by Section 3507.3. The Board agent
concluded that there was no evidence that either petition indicated that professional employees
wished to be represented by a professional employee organization.
DISCUSSION
MMBA section 3507.3 provides:
Professional employees shall not be denied the right to be
represented separately from nonprofessional employees by a
professional employee organization consisting of such
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 Division of Conciliation of the Department of
Industrial Relations 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.
The right to separate representation for professional employees has been confirmed by
the courts. 	(Alameda County Assistant Public Defenders Assn, v. County of Alameda (1973)
33 Cal. App. 3d 825, 828 [109 Cal.Rptr. 392].)
Section 14 of the District's EERR sets forth the procedure for modification of
established appropriate units and provides, in pertinent part:
A. 	Requests by employee organizations for modifications of
established appropriate units may be considered by the Employee
Relations Officer only during an 'open period' [5] . 	Such requests
shall be submitted in the form of a Recognition Petition and, in
5EERR section 8C defines the open period as: 	"Any petition filed pursuant to this
Section 8 must be filed, if at all, during the period that is not more than 120 days, nor less than
90 days, prior to the expiration of an MOU (the 'open period')."
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addition to the requirements set forth in Section 8 of this Article,
shall contain a complete statement of all relevant facts and
citations in support of the proposed modified unit in terms of the
policies and standards set forth in Section 13 hereof. The
Employee Relations Officer shall process such petitions as other
Recognition Petitions under this Article II.
B. 	The Employee Relations Officer may on his/her own motion
proposed during the period specified in Section 12 of this Article
that an established unit be modified.
1. The Employee Relations Officer shall give written notice of
the proposed modification(s) to any affected employee
organization and shall hold a meeting concerning the proposed
modification(s), at which time all affected employee
organizations shall be heard.
2. 	Thereafter the Employee Relations Officer shall determine the
composition of the appropriate unit or units in accordance with
Section 13 of this Article II, and shall give written notice of such
determination to the affected employee organizations.
These procedures authorize an employee organization, not an individual employee or group of
employees, to file a unit modification petition to create a separate unit of professional
employees.
Tacke and other professional employees filed two petitions to separate its unit from the
Professional and Supervisory unit. 	The September 10 petition indeed improperly sought to
place the unit with the Management/Confidential group, which would also comprise a mixed
unit of professional and non-professional employees. The petition also stated that it "should in
no way be interpreted to single out the undersigned individuals as a separate bargaining unit."
We agree with the Board agent that MMBA section 3507.3 does not require placement from
one mixed unit to another. However, in his September 14 response to the petition, Gronholt
committed to notifying the affected employee organizations and holding a hearing, after which
he would "determine the composition of the professional bargaining unit apart from the
Professional and Supervisory bargaining unit consistent with the provisions of the EERR and
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MMBA." Gronholt never followed through with his written commitment and Tacke and other
professional employees filed a second petition in December. 	In this petition, the employees
asked to be placed in a separate bargaining unit from non-professional employees. 	The
petition did not specifically request "to be represented separately from nonprofessional
employees by a professional employee organization consisting of such professional
employees." (MMBA section 3507.3, emphasis added.) That the petition did not seek
representation by a professional employee organization is the basis for the Board agent's
dismissal.
PERB regulations6 and the EERR section 14 only provide that an employee
organization may petition for unit modification. 	Tacke and other professional employees, not
employee organizations, filed the two unit modification petitions with the District. Despite
Gronholt's acknowledgement of the professional employees' September petition, the charge
should be dismissed because the petitions were not filed by employee organizations. 	In light
of the above discussion, the dismissal is affirmed.
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ORDER
The unfair practice charge in Case No. SA-CE-267-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Shek joined in this Decision.
6 PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq. See for example, PERB Regulations 61450, 32781, 81450, and 91450.
7We reject the District's argument that the December petition was not filed during the
open period because, according to Tacke's undisputed allegation, there was no MOU in
existence for Professional and Supervisory unit at the time both petitions were filed.
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