City of Lodi (PERB 2142M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF LODI,
Employer,
and
LODI PROFESSIONAL & TECHNICAL
EMPLOYEES,
Petitioner,
and
AFSCME LOCAL 146,
Exclusive Representative.
Case No. SA-SV-168-M
PERB Decision No. 2142-M
November 16, 2010
Appearance: Kevin Gaither, Representative, for Lodi Professional & Technical Employees.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: 	This case comes before the Public Employment Relations Board
(Board) on appeal by the Lodi Professional & Technical Employees (LPTE)
of
a dismissal
(attached)
of
a severance petition by an administrative law judge (ALJ). The petition sought
the severance
of
approximately ten employees in eleven classes designated within the City
of
Lodi' s general services unit. 	The ALJ dismissed the petition for failure to establish sufficient
justification for the proposed unit based on a separate and distinct community
of
interest.
We have reviewed the entire record in this matter and agree that LPTE failed to
establish, pursuant to Section 10
of
the City
of
Lodi' s Employer-Employee Relations Rules,
that its proposed unit possessed a community of interest which was separate and distinct from
the other employees in the general services unit. Accordingly, we find the dismissal was well-

reasoned, adequately supported by the record and in accordance with applicable law.
Accordingly, the Board hereby adopts the ALJ' s dismissal of the petition as the decision of the
Board itself.
ORDER
The severance petition in Case No. SA-SV-168-M is hereby DISMISSED WITHOUT
LEAVE TO AMEND.
Chair Dowdin Calvillo and Member Wesley joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CITY OF LODI,
Employer,
and
LODI PROFESSIONAL & TECHNICAL
EMPLOYEES,
Petitioner,
and
AFSCME LOCAL 146,
Exclusive Representative.
REPRESENTATION
CASE NO. SA-SV-168-M
PROPOSED DECISION
(12/17/2008)
Appearances: Dean Gualco, Human Resources Manager, for the City of Lodi; Kevin Gaither,
Representative, for the Lodi Professional & Technical Employees; and Felix M. Huerta, Jr.,
Business Agent, for AFSCME Local 146.
Before Shawn P. Cloughesy, Administrative Law Judge.
PROCEDURAL HISTORY
On March 19, 2008, the Lodi Professional & Technical Employees (LPTE) filed a
severance petition with the Public Employment Relations Board (PERB). LPTE seeks
severance of approximately ten employees in eleven classes 1 designated within the City of
Lodi (City) General Services Unit. The current titles of these classes are Assistant Engineer,
Assistant Planner, Associate Civil Engineer, Associate Engineer, Engineering Technician I and
II, Junior Engineer, Junior Planner, Senior Engineering Technician, and Water Services
Technician I and II. LPTE contends that these eleven classes have a separate and distinct
community of interest from the General Services Unit. AFSCME Local 146, the exclusive
The ten employees include one Associate Civil Engineer, one Junior Engineer, three
Senior Engineering Technicians, two Engineering Technician II's, two Junior Planners, and
one Water Services Technician II.

representative
of
the General Services Unit, opposes the petition contending that the eleven
classes should remain in the General Services Unit
as
they do not have a separate and distinct
community
of
interest. The City acknowledges that the proposed unit has "similar
classifications" that may "facilitate their representation as one unit." It did not initially oppose
the creation
of
a separate unit other than to state its overall concern about fragmentation
of
bargaining units resulting in a unit containing a small number
of
employees.
On April 14, 2008, PERB determined that the severance petition had been timely filed
with an adequate proof
of
support.
A settlement conference was conducted on May 6, 2008, but f
resolution. Formal hearing was conducted on August 15, 2008. Preparation
of
the transcript
was delayed due to the lack
of
a State budget. The transcripts were finally mailed to AFSCME
on October 28, 2008, and post-hearing briefs were to be postmarked to the ALJ and the
opposing representatives in thirty days. Unfortunately, the due date fell on a State holiday
(Thanksgiving). LPTE submitted its post-hearing brief before the deadline. AFSCME' s post-
hearing brief was dated Monday, December
1,
2008, but it was postmarked December 3. 	As
AFSCME's post-hearing brief was postmarked on December 3, it will not be considered.
ailed to produce
2 The
City stated that it would not submit a post-hearing brief and did not.
FINDINGS OF FACT
Background
The City has nine bargaining units: 	Firefighters, Fire Mid-Management, Electric
Utility, Dispatchers, Police Officers, Police Mid-Management, Maintenance and Operators,
Mid-Management, Executive Management and General Services.
2 On December 10, 2008, LPTE asked that AFSCME's brief not be considered as it
was postmarked December 3.
2

The General Services Unit is made up
of
approximately
53
classes containing
83 employees which include: Accounting Clerk, Administrative Clerk, Administrative
Secretary, Animal Services Officer, Building Inspector (I and II), Buyer, Civil Engineer
(Junior, Assistant and Associate), Community Improvement Officer, Customer Service
Representative, Data Processing Programmer Analyst, Engineering Technician (I, II and
Senior), Field Service Representative, Finance Technician, Information Systems Specialist,
Librarian (I and II), Library Assistant, Meter Reader, Network Technician, Office Supervisor,
Parking Enforcement Assistant, Parks Program Specialist, Planner (Junior, Assistant and
Associate), Police Records Clerk, Public Works Inspector (I and II), Purchasing Technician,
Storekeeper, and Water Services Technician (I and II).
The Association
of
Lodi City Employees (ALCE) has been the exclusive representative
of
the General Services Unit for a prolonged period
of
time up to the present. ALCE affiliated
with AFSCME Local 146 (AFSCME) in 1999, and AFSCME has provided representation for
the unit since then. Business Agent Felix Huerta, Jr. (Huerta) has been assigned by AFSCME
to represent ALCE since 2003. Kevin Gaither (Gaither) was the President
of
ALCE until he
resigned in 2006. Mark Ruggiero (Ruggiero) succeeded Gaither as ALCE President.
Dean Gualco (Gualco) has been the City's Human Resources Manager and Chief
Negotiator since October 2007.
Employer-Employee Relations Rules for Appropriate Units
The City adopted Employer-Employee Relations Rules (EERR's) pursuant to MMBA
section 3507 in 1976. The EERR does not contain a section on severing a bargaining unit, but
EERR section 10 defines an "appropriate unit," providing:
3

(A) The Municipal Employee Relations Officer, [3J after
reviewing the petition filed by an employee organization seeking
formal recognition as majority representative, shall determine
whether the proposed unit is an appropriate unit. The principal
criterion in making this determination is whether there is a
community
of
interest among such employees. The following
factors, among others, are to be considered in making such
determination:
(1) Which unit will assure employees the fullest freedom in
the exercise
of
rights set forth under this Resolution.
(2) The history
of
employee relations: 	(i) in the unit;
(ii) among other employees
of
the City; and (iii) in similar
public employment.
(3) The effect
of
the unit on the efficient operation
of
the
City and sound employer-employee relations.
( 4) The extent to which employees have common skills,
working conditions, job duties or similar educational
requirements.
(5) The effect on the existing classification structure
of
dividing a single classification among two or more units.
Provided, however, no unit shall be established solely on the
basis
of
the extent to which employees in the proposed unit
have organized.
(B) In the establishment
of
appropriate units,
( 1) [P]rofessional employees shall not be denied the right to
be represented separately from non-professional employees;
...	
[Emphasis added.]
Common Skills, Working Conditions, Job Duties and Educational Requirements
Associate Civil Engineers are registered civil engineers, and possess a bachelor's
degree in engineering. Assistant and Junior Engineers also have bachelor's degrees. The
subprofessional Senior Engineering Technician and the Engineering Technician I and II classes
do not require a college education.
3 The EERR further identifies the Municipal Employee Relations Officer to be the City
Manager. (EERR section 12.)
4

Associate and Assistant Planner classes require a bachelor's degree in city or regional
planning. Junior Planners also have a bachelor's degree with major course work in city,
regional, urban or transportation planning.
Water Services Technicians I and II perform subprofessional engineering, and water
and v·vastev-1ater systems planning. The \ 1/ater Services Technician II must have college-le·vel
courses in civil engineering, hydraulics, statistics, and geographic information systems, and a
Department of Health Services (DHS) Water Distribution Operator License Grade II
certificate, or a DHS Water Treatment Plant Operator License Grade II certificate and a DHS
Water Distribution Operator License Grade I certificate. The specific duties of the class are:
Performs complex drafting and mapping assignments using
computer-aided methods; Under the supervision of a licensed
engineer, designs and prepares plans, specifications and cost
estimates for Division projects. Assist in developing and
managing the City's water meter program. Assist in coordinating
water conservation programs and analyzing water
consumption/conservation data. Reduces survey field notes,
prepares quantity take-offs, calculates material quantities;
maintains and updates accurate records, survey data and progress
reports; ... Performs paraprofessional engineering work in the
compilation and analysis of data for special projects and prepare
various reports as required; Compile data, perform research and
statistical analysis, and prepare reports, graphs, and visual
presentations of data for regulatory permits and other uses;
Assist, monitor and analyze all aspects of regulatory compliance
for the City's water and wastewater facilities; i 1
~ssist in
coordinating safety programs for compliance with State and
Federal safety regulations ....
Other classes in the General Services Unit which require college education include:
Librarian I and II (Masters of Library Science degree); Information Systems Specialist
(two years college with supplemental data processing courses); Network Technician (Associate
of Arts degree supplemented by computer-related coursework); and Parks Projects Coordinator
(Associate of Arts degree with emphasis on park operations, public recreation, or natural
5

sciences). Bargaining unit classes which require or prefer a competency certification include
Building Inspector II.
The City's Engineers and Engineering Technicians report to the City Engineer, Public
Works Department, Engineering Division at City Hall where most General Service Unit
positions are located. The Planners and Building Inspectors report to the Community
Development Department Director who is also at City Hall. The Water Service Technicians
report to the Water/Wastewater Superintendent, Public Works Department at the Municipal
Service Center, a separate work location than City Hall.
LPTE contends that the classes in the unit proposed for severance are consistent with
bargaining units in other local public agencies. LPTE introduced Memoranda of
Understanding (MOU's) from City of Chula Vista, County of Contra Costa, and City of
Newport Beach. The grouping of classes for Chula Vista include Engineers (Assistant,
Associate, Senior and Transportation), Surveyors (Assistant and Land) and Plans Examiner
(including Senior); and for Contra Costa are Blue Print Technicians, Engineering Records
Technician (including Specialist and Senior), Engineering Technician (Entry, Journey and
Senior), and Hydrographer (including Senior).
The Newport Beach unit includes Accountants (including Senior), Building Inspector
(I, II, Principal, and Senior), Buyer, Civil Engineer (including Junior, Associate and Senior),
Surveyor, Code and Water Quality Enforcement (including Trainee and Officer), Construction
Inspection, Emergency Services Assistant, Engineering Technician (including Senior), Fire
Information Systems Coordinator, Geographic Information Systems (Technician, Analyst and
Coordinator), Harbor Resources 	(I and II), Information Technology (Applications
Analyst, Applications Analyst Senior, Applications Coordinator, Operations Coordinator,
Specialist, Senior Specialist and Technician), Library Information Systems Coordinator,
6

Management Assistant, Permit Technician (including Trainee), Planner (Assistant, Associate
and Senior), Public Works Inspector (I, II and Senior), Residential Building Records Inspector,
Revenue Audit, Subtrade Plans Examiner, Telecom/Network Coordinator, Telecom Specialist,
Traffic Engineering Technician, Urban Forester, and Water Conservation Coordinator.
History of Employee Relations
Since 1999, AFSCME has negotiated four successive MOU's. Huerta asserted that
AFSCME has successfully addressed the issues raised by employees of the proposed unit
through the meet and confer process and labor/management meetings.
The MOU for the General Services Unit covering July 1, 2003 to June 30, 2006
provides an extra $23.08 monthly per certificate for subprofessional engineering employees
who obtain certificates of engineering in training, land surveyor in training and/or land
surveyor. Additionally, a $150.00 safety boot allowance was provided for the Associate Civil
Engineer, Associate Traffic Engineer, Engineering Technician, Junior/Assistant Engineer, and
Senior Engineering Technician.
Since October 2007, Human Resources Manager Gualco has participated with
AFSCME in biweekly labor/management meetings to resolve employment problems. Both
Huerta and Gualco consider the meetings to be productive, although the agendas provided for
the meetings demonstrate that a number of issues recur and are unresolved.
One issue involved an augmentation to salary, certification pay, that the Water Services
Technician was to receive for obtaining certification. The Water Services Technician is a
relatively recent class for which Huerta updated Gaither.4 The proposed class required the
Gaither was consulted about the class, but he did not want to contribute to
development of the position because he would be a future applicant for the position when it
would be advertised. 	Gaither is the only Water Services Technician employed by the City who
is on the roster of General Service Unit employees.
7

incumbent to obtain a DHS Distribution Operator License certificate. AFSCME argued
that
the City should compensate the employee for obtaining the certification, and the City agreed.
After the class was finalized, the certification pay was left
off
the
job
description.
Gaither notified Huerta that certification pay was not in the
job
description and Huerta
pursued
the issue with the City in laboi/management meetings for a number
of
weeks, yet resolution
was not achieved. After a month, Gaither sent an e-mail to the City Manager and Gualco,
stating that the matter was simple and should be fixed. 	After receiving the e-mail, the
City
Manager directed Gualco to resolve the problem. Gualco informed AFSCME
of
a proposed
salary increase for the position, which was approved.
MOU
section 8.1 authorizes that General Service Unit employees covered by the Fair
Labor Standards Act
of
1938 (FLSA), 29 USC section 201 et seq., to be paid overtime after
eight hours
of
work, or over forty hours in a workweek. MOU section 13.1 specifically
exempts Junior Planners, Assistant Planners, Associate Planners, Junior Engineers, Assistant
Engineers and Associate Civil Engineers from FLSA coverage, but they receive administrative
leave benefits instead. The City proposed to expand the number
of
FLSA-exempt classes and
thereby removing any FLSA-related benefits. AFSCME sought to maintain and expand these
benefits for bargaining unit employees.
Huerta testified that AFSCME assisted Junior Planner Immanuel Bereket (Bereket)
when the City proposed to transfer Bereket to another department. AFSCME asked Bereket
if
the proposed transfer was acceptable to him and he agreed to it.
8

Efficiency of Operations of the City/Fragmentation of Units
AFSCME contended severing the unit would decrease its bargaining power and lead to
a proliferation of bargaining units. The City opposed moving in any direction which created a
proliferation of one to two person units.
ISSUE
Do the professional and technical positions in the proposed unit share a community of
interest that is separate and distinct from the classes in the General Services Unit under the
local EERR factors?
CONCLUSIONS OF LAW
The MMBA does not explicitly contain a provision governing the severance of units.
MMBA section 3507(a) provides that a local public agency may adopt reasonable rules and
regulations for the administration of employer-employee relations concerning:
(4) Exclusive recognition of employee organizations formally
recognized pursuant to a vote of the employees of the agency or
an appropriate unit thereof, subject to the right of an employee to
represent himself or herself as provided in Section 3502.
* 	* 	*
(9) Any other matters that are necessary to carry out the purposes
of this chapter. 	[Emphasis added.]
The City's EERR also does not provide for a provision governing the severance of
units. PERB Regulation 61000 provides:
Except as otherwise ordered pursuant to Chapter 1, or as provided
for by Public Utilities Code, Division 10, Part 16, Chapter 5
(section 105140 et seq.), the Board will conduct representation
proceedings and/or agency fee rescission elections under MMBA
in accordance with the applicable provisions of this Chapter only
where a public agency has not adopted local rules in accordance
with MMBA section 3507. [Emphasis added.]
9

Additionally, PERB Regulation 61420(a) provides:
Whenever a severance petition is filed with the Board, the Board
shall investigate and, where appropriate, conduct a hearing
...
,
or take such other action as deemed necessary to decide the
questions raised by the petition.
While none
of
the parties challenged the local EERR community
of
interest factors for
an appropriate unit, these factors are substantially similar to those set forth in City
of
Glendale
(2007) PERB Order No. Ad-361-M (Glendale) which was found to be consistent with MMBA
and National Labor Relations Board (NLRB) precedent. (Glendale, supra, PERB Order No.
Ad-361-M, pp. 5 and 6.) Thus, the City's community
of
interest factors will be applied in this
case.
While a severance petitioner has the burden
of
proving its proposed unit is an
"appropriate unit" (Glendale, supra, PERB Order No. Ad-361-M), it need not demonstrate that
its proposed unit is "the ultimate unit or the most appropriate unit." (Alameda County
Assistant Public Defenders Assn. v. County
of
Alameda (1973)
33
Cal.App.3d 825, 830
(Alameda County) and Santa Clara County Dist. Attorney Investigator Assn. v. County
of
Santa Clara (1975)
51
Cal.App.3d 255, 260 (Santa Clara County).) A petitioner must show
that the proposed unit has a community
of
interest "separate and distinct" from other
employees within the existing bargaining unit. 	(Alameda County, supra, 33 Cal.App.3d 825,
831 and Elk Grove Unified School District (2004) PERB Decision No. 1688, p. 24 and 25.)
While the EERR lists a number
of
community
of
interest factors to be considered in an
appropriate unit, the parties presented evidence and argument on only the following factors:
common skills, working conditions, job duties, or similar educational requirements; history of
employee relations; and efficient operation of the City and sound employer-employee relations.
10

Common Skills, Working Conditions, Job Duties and Educational Requirements
The Engineer, Engineering Technician and Water Services Technician classes are
related to either professional or subprofessional engineering work. The Planner classes are
professional classifications which are tangentially related to engineering. LPTE must show
that the proposed unit shares a community
of
interest "separate and distinct" from the General
Services Unit. By contrast, the proposed unit has much in common with the General Services
Unit.
	If
the petition was granted, both units would contain employees with diverse educational
requirements; professional and technical employees; employees who work at the same
location; and employees reporting to the same chain
of
command. Thus, LPTE has failed to
show that its proposed unit
is
separate and distinct from the General Services Unit.
LPTE also contended that bargaining units in three outside public agencies (City
of
Chula Vista, County
of
Contra Costa and City
of
Newport Beach) demonstrated that its
proposed unit was appropriate. A close analysis
of
those units does not support LPTE' s
contention, however. While Chula Vista and Contra Costa units contain a limited number
of
professional and technical classes centered around engineering, with the addition
of
Plan
Examiners, Surveyors, and Hydrographers, those units do not include a Water Services
Technician class or its equivalent. The Newport Beach unit is a large professional and
technical unit that includes the classes
of
Building Inspector, Buyer, Information Technology,
and Public Works Inspector which are in the City's General Service Unit, but are excluded
from the proposed unit. 	While it is difficult to consider these units without background
knowledge as to their reporting structure, work location and bargaining history, the Chula
Vista and Contra Costa units are very different from the Newport Beach unit. The Chula Vista
and Contra Costa units are limited professional and technical units while the Newport Beach
11

unit is a more expansive professional and technical unit. LPTE has shown only that the inquiry
into the units goes beyond mere groupings
of
classes.
History
of
Employee Relations
The MOU negotiated by AFSCME provides for specific needs
of
employees in the
proposed unit, such as extra pay for certifications and a boot allowance. While AFSCME's
representation on the Water Services Technician certification pay issue was not flawless, it still
successfully advocated for the certification pay initially and, with Gaither's insistence, secured
the pay augmentation. LPTE did not prove that the history
of
employee relations between
AFSCME and the City was unstable, or that AFSCME was inadequately represented the
interests
of
the proposed unit's employees.
Efficiency
of
Operations
of
the City/Fragmentation
of
Units
The proposed unit has ten employees in eleven classes. The professional employees
within the proposed unit have a right to be represented separately from the subprofessional
employees,
if
they were to later request that the unit be severed again. (MMBA section 3507.3
and EERR section 10(B).) Presumably, those professional employees would be the Assistant
Engineer, Associate Civil Engineer, Associate Engineer, Junior Engineer, Junior Planner and
Assistant Planner which would constitute four employees in six classes.5 A four-employee unit
of
professional employees, and a six-employee unit
of
subprofessional/technical employees
would not be efficient for the administration
of
labor relations, and would lead to
fragmentation of bargaining units and a decrease in collective influence.
5 MMBA section 3507.3 specifically enumerates engineers as professional employees.
In Alameda County, supra, 33 Cal.App.3d 825, the County of Alameda found that a planner
was also a professional employee.
12

CONCLUSION
LPTE failed to show that the classes in the proposed unit share a commonality of
duties, educational requirements, work locations, and reporting structure that is separate and
distinct from the overall General Services Unit. Additionally, a history of stable and
successful negotiations exists bet\veen the employer and the exclusive representative. Finally,
because the professional employees have a right to belong to a separate unit, to grant the
petition might lead to a fragmentation of bargaining units. In sum, based on the community of
interest factors reviewed, petitioner has failed to set forth sufficient justification for the
proposed unit based on a separate and distinct community of interest.
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the severance petition in Case No. SA-SV-168-M, City of Lodi and Lodi
Professional & Technical Employees and AFSCME Local 146, is hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4174
(916) 322-8231
FAX: (916) 327-7960
In accordance \Vith PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
13

A document is considered filed when actually received during a regular PERB
business
day. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code sec.
11020(a).) A document is also considered filed when received by facsimile transmission
before the close
of
business together with a Facsimile Transmission Cover Sheet which
meets
the requirements
of
California Code
of
Regulations, title
8,
section 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, sec. 32135(b), (c) and (d); see also Cal. Code
Regs., tit.
8,
secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently
with
its
filing upon each party to this proceeding.
Proof
of
service shall accompany each copy
served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
---------------=---
Shawn P. Cloughesy
Administrative Law Judge
14