County of Orange (PERB A386M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

COUNTY OF ORANGE,
Employer, Case No. LA-SV-161-M
and Administrative Appeal
UNION OF AMERICAN PHYSICIANS & PERB Order No. Ad-386-M
DENTISTS,
October 25, 2010
Petitioner,
and
ORANGE COUNTY EMPLOYEES
ASSOCIATION,
Exclusive Representative.

Appearance: Lawrence Rosenzweig, Attorney, for Union of American Physicians & Dentists.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION

DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Union of American Physicians & Dentists (UAPD)
of a Board agent’s administrative determination on its petition for severance. The petition
sought to sever five classifications from the County of Orange’s (County) Healthcare
Professionals bargaining unit, which is exclusively represented by the Orange County
Employees Association (OCEA). The Board agent dismissed the petition for lack of
jurisdiction because the County has a local rule that governs severance petitions.

The Board has reviewed the administrative determination and the record in light of
UAPD’s appeal and the relevant law. Based on this review, the Board affirms the dismissal of

UAPD’s petition for the reasons discussed below.

FACTUAL AND PROCEDURAL BACKGROUND
On February 26, 2009, U,A~PD filed unfair practice charge number LA-CE-518-M
alleging that the County violated the Meyers-Milias-Brown Act (MMBA) 1 by denying UAPD's
petition to sever the following five classifications from the Healthcare Professionals bargaining
unit: Community Mental Health Psychiatrist, Physician, Physician Specialist, Public Health
Medical Officer I, and Dentist. On March 25, 2009, UAPD filed an identical severance petition
with PERB that was assigned case number LA-SV-159-M. In response to the petition, the
County informed PERB that severance can be achieved via section 9, "MODIFICATION OF
REPRESENTATION UNITS," of the County's Employee Relations Resolution (ERR).
UAPD withdrew the petition in case number LA-SV-159-M on May 6, 2009.
On June 23, 2009, UAPD filed an identical severance petition in this case. On July 8,
the Board agent issued an order to show cause why the petition should not be dismissed for
lack of jurisdiction based on the information obtained during the investigation in case number
LA-SV-159-M. UAPD responded on July 23, asserting that PERB had jurisdiction because the
County has no local rule governing severance and the procedure in ERR section 9 is
insufficient to protect the rights of employees in the five classifications UAPD sought to sever
from the unit. On September 2, 2009, OCEA filed a declaration by its general manager, Nick
Berardino, that listed 10 instances where ERR section 9 had been used to sever classifications
from an existing bargaining unit for placement in a new bargaining unit.
On December 14, 2009, a PERB administrative law judge (ALJ) issued a proposed
decision in case number LA-CE-518-M which found that severance could be achieved via
section 9 of the County's ERR. Based on this finding, the Board agent dismissed UAPD's
severance petition for lack of jurisdiction on December 28, 2009.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2

DISCUSSION
Under PERB Regulation 61000,2 a party may file a representation petition with PERB
when a local agency has no applicable representation rule. (County of Siskiyou/Siskiyou
County Superior Court (2010) PERB Decision No. 2113-M.) In County o.f Siskiyou/Siskiyou
County Superior Court, supra, the Board held that PERB has jurisdiction over a representation
petition, and thus PERB regulations will apply, when the agency's local rules contain no
provision that can accomplish what the petitioner is seeking without placing an undue burden
on the petitioner.
In this case, the Board agent dismissed UAPD's severance petition based on the ALJ's
proposed decision in case number LA-CE-518-M, which found that severance could be
accomplished via section 9 of the County's ERR The Board recently affirmed this finding in
County of Orange (2010) PERB Decision No. 2138-M. Because the County has a local rule that
provides for severance, we affirm the Board agent's dismissal ofUAPD's severance petition for
lack of jurisdiction.
ORDER
The severance petition in Case No. LA-SV-161-M is hereby DISMISSED.
Members McKeag and Wesley joined in this Decision.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 61000 states: "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."
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