State of California (Information Technology Bargaining Unit 22 and Service Employees International Union Local 1000/California State Employees Association) (PERB 2178S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA,
Employer,
and
IT BARGAINING UNIT 22,
Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1000, CSEA,
Exclusive Representative.
Case No. SA-SV-165-S
PERB Decision No. 2178-S
May 23, 2011
Appearances: 	Lyle Hintz, Unit Representative, for IT Bargaining Unit 22; Patricia Cano, Staff
Attorney, for Service Employees International Union, Local 1000, CSEA.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by IT Bargaining Unit 22 (IT Unit 22 or
Petitioner) to the proposed decision (attached)
of
an administrative law judge (ALJ). 	The ALJ
dismissed IT Unit 22's petition to sever a group
of
Information Technology (IT) classifications
from State Bargaining Unit 1 (Professional, Administrative, Financial, and Staff Services)
(BU1) because IT Unit 22 failed to establish that its proposed unit was more appropriate than
BUl.
The Board has reviewed the proposed decision and the record in light ofIT Unit 22's
exceptions, Service Employees International Union, Local 1000, CSEA's (SEIU) response
thereto, and the relevant law. 	Based on this review, we find the proposed decision to be well-
reasoned, adequately supported by the record, and in accordance with applicable law.

2
Accordingly, the Board adopts the proposed decision as the decision
of
the Board itself, as
supplemented by the discussion below.
DISCUSSION
Petitioner raises five exceptions to the ALI' s proposed decision. Other than one
regarding a minor factual error, 1 the exceptions are without merit for the following reasons.
1.	
SEIU' s Alleged Conflict
of
Interest
Petitioner contends the proposed decision does not address sufficiently its argument
that SEIU has a conflict
of
interest that prevents it from adequately representing IT employees.
According to Petitioner, automation that results from the work
of
IT employees necessarily
eliminates non-IT positions in BUI and other State bargaining units represented by SEIU.
Petitioner asserts that SEIU thus has a conflict between protecting non-IT employees' jobs and
adequately representing the interests
of
IT employees.
The record fails to show that the work
of
IT employees ever resulted in the elimination
of
non-IT positions. Petitioner's witnesses Carter and Christopher Paulsen testified that
automation has enabled non-IT employees to become more productive, such as by processing
more claims per hour; neither testified to any occasion when non-IT positions were eliminated
as a result
of
automation. At the same time, Carter and Robert Jenkins, another Petitioner's
witness, testified that automation has eliminated IT positions. Thus, it is IT positions, not non-
IT positions, that have suffered at the hands
of
automation. Accordingly, Petitioner has not
established there is a conflict between the interests
ofIT
employees and non-IT employees that
precludes SEIU from effectively representing both groups as part of BUI.
1 The ALJ found that only two of Petitioner's witnesses had college degrees in
IT-related fields. 	The hearing transcript shows that Marlene Carter (Carter), another of
Petitioner's witnesses, holds a bachelor of science degree in computer science from
Sacramento State University. Petitioner's exception is thus valid; however, this minor factual
error does not alter our conclusion that IT Unit 22' s petition must be dismissed.

2. 	Judicial Notice
In its post-hearing reply brief, Petitioner asked the ALJ to take judicial notice
ofIT
Policy Letter 09-05, Agency Information Officer and Department Chieflnformation Officer
Responsibilities (IT policy letter), issued by the Office
of
the State Chief Information Officer
(CIO) on June 26, 2009. The brief provided a citation to the document on the CI
O's
website
but a hard copy
of
the document was not attached. The ALJ declined to take judicial notice
of
the document and treated the portion
of
the IT policy letter quoted in the brief as argument.
Petitioner contends the ALJ improperly declined to take judicial notice
of
the IT policy
letter. 	Evidence Code section 452, subdivision (c) allows a court to take judicial notice
of
official acts
of
the executive department
of
a state. Publications and bulletins issued by a State
agency are subject to judicial notice under this code section. (Carleton
v.
Tortosa (1993) 14
Cal.App.4th 745, 753, fn. 1.) The IT policy letter is an official letter
of
the State CIO directed
to agency and department heads. It is thus subject to judicial notice under Evidence Code
section 452, subdivision (c ).
Nonetheless, PERB has declined to take judicial notice
of
documents that are
of
no
probative value to the issues before it. (The Regents
of
the University
of
California, University
of
California at Los Angeles Medical Center (1983) PERB Decision No. 329-H.) The excerpt
of
the IT policy letter in Petitioner's reply brief states:
'Employees and Contractors: All state employees in information
technology classifications, and all other state employees or
contractors performing IT activities and/or functions must be in a
direct reporting relationship to the appropriate Agency or
department CIO.'
Petitioner presented the IT policy letter to counter evidence at the hearing that some IT
employees reported to non-IT supervisors or managers. 	Common lines of supervision are one
factor PERB considers in determining whether employees share a community of interest.
3

(Elk Grove Unified School District (2004) PERB Decision No. 1688.) Thus, the IT policy
letter is relevant to an issue before the Board in this matter.
The fact that IT employees will now report directly to IT supervisors or managers does
not overcome the overwhelming evidence in the record that the classifications Petitioner seeks
to sever share a community
of
interest with other
BUl
employees. As noted in the proposed
decision, IT employees will still interact on a regular basis with other BUI employees, as well
as employees in other bargaining units; still share similar working conditions, qualifications,
skills, and duties with other BUI employees; and still have the same salary structure, benefits,
leave, promotion, and discipline procedures as other BUI employees. Thus, the change in
lines
of
supervision, while a relevant factor, is not a determinative one in this case.
3. 	Weight
of
Testimony
Petitioner argues that the ALJ erred in giving greater weight to testimony by witnesses
who did not want IT classifications severed from BUI than to testimony by witnesses with
longer State service who supported severance. Petitioner points to the ALJ' s discussion
of
the
testimony
of
SEIU witness Kevin Curtis (Curtis), a six-year State employee. Curtis testified
that, although initially supportive
of
the severance effort, Curtis came to oppose severance
after becoming more involved with SEIU as first a steward, and then a district and
classification bargaining unit representative. He also testified that he believed a larger unit
was better able to challenge outsourcing
of
bargaining unit work. The ALJ' s recitation
of
Curtis' testimony was not a factual finding that employees opposed severance, but merely an
example
of
one employee who had changed his mind on the matter.
Nonetheless, the ALJ ruled later in the proposed decision that evidence of employee
opposition to severance outweighed evidence of employee dissatisfaction with SEIU. 	When a
party files exceptions to a proposed decision, the Board reviews the evidence de novo and is
4

entitled to draw its own factual conclusions. (California Teachers Assn.
v.
Public Employment
Relations
Bd.
(2009) 169 Cal.App.4th 1076, 1086-1087.) Having thoroughly reviewed the
entire record in this matter, we conclude the ALJ properly weighed the evidence presented by
the parties at hearing. However, even
if
the ALJ erred in giving greater weight to witnesses
who opposed severance, the error would not change the outcome in this case because employee
dissatisfaction is only one factor PERB considers in severance cases (State
of
California
(Department
of
Personnel Administration) (1993) PERB Decision No. 1025-S), and there is
ample evidence in the record to support dismissal
of
the petition on other grounds.
4. 	Failure to Implement Memorandum
of
Understanding (MOU) Provisions
Petitioner further contends the ALJ erred by failing to include in her findings
of
fact
evidence
of
SEIU's inability to implement provisions in its last two MOUs with the State
concerning reclassification
of
IT employees and establishment
of
an IT Joint Labor-
Management Apprenticeship and Training Committee. According to Petitioner, this evidence
establishes that SEIU does not adequately pursue the interests
of
IT employees.
Petitioner agrees that the reclassification and apprenticeship committee provisions are
beneficial to IT employees, but points out that SEIU has failed to implement them during the
ten years since they were negotiated. As for the reclassification study, SEIU witnesses
testified that SEIU stopped the initial reclassification effort because it would have been
unfavorable to unit members. Witnesses also testified that the revived process was put on hold
while SEIU and the State negotiated successor MOUs. Under the MOU, the apprenticeship
committee was not to be implemented until the reclassification was complete. Nonetheless,
SEIU and the State met to discuss preliminary aspects
of
the committee so that it could be
implemented more quickly after reclassification.
5

6
Contrary to Petitioner's claim, this evidence does not show that SEIU is disregarding
the interests
of
IT employees. It instead establishes that the delay in implementing both MOU
provisions was due to protracted negotiations over successor MOUs and SEIU's desire to make
the reclassification as favorable to IT employees as possible. This falls far short
of
showing
that the interests
of
IT employees "were trampled upon or ignored" by SEIU, such that
severance is necessary to prevent abrogation
of
their rights. (State
of
California (Department
of
Personnel Administration) (1989) PERB Decision No. 773-S.)
ORDER
The severance petition in Case No. SA-SV-165-S is hereby DISMISSED.
Chair Martinez and Member McKeag joined in this Decision.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA,
Employer,
and
IT BARGAINING UNIT 22,
Petitioner,
and
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1000, CSEA,
Exclusive Representative.
REPRESENTATION
CASE NO. SA-SV-165-S
PROPOSED DECISION
(12/21/2010)
Appearances: 	State
of
California (Department
of
Personnel Administration) by Todd M.
Ratshin, Linda
M.
Kelly, and Kevin A. Geckeler, Labor Relations Counsel, for State
of
California; Lyle Hintz, Unit Representative, for IT Bargaining Unit 22; Anne M. Giese and
Patricia Cano, Staff Attorneys, for Service Employees International Union Local 1000, CSEA.
Before Christine A. Bologna, Acting Chief Administrative Law Judge.
PROCEDURAL HISTORY
On June 15, 2006, Petitioner IT Bargaining Unit 22 (Petitioner or IT Unit 22) filed a
petition to sever a group
of
"Information Technology" (IT) employees from State Bargaining
Unit 1 (Professional, Administrative, Financial and Staff Services) (Unit 1)1 with the Public
Employment Relations Board (PERB or Board) Sacramento Regional Office.
On June 20, 2006, Unit 1 exclusive representative Service Employees International
Union Local 1000, CSEA (SEIU or Union) moved to dismiss the petition for failure to provide
majority proof of support for severance in the specified classes of 7,613 employees because
185 "misled" workers who signed petitions subsequently executed revocation cards
1 The proposed IT Unit 22 included 7,500 employees in 33 job classifications (class).

withdrawing their support; the Union also questioned the appropriateness of the proposed unit
because it included non-IT job classes and excluded five IT classes. On July 11, SEIU further
opposed the petition because: IT Unit 22 was not an employee organization; fraud and
misrepresentation in collecting signatures on the petition; more than 300 employees signed
revocation cards withdrawing their support for severance; the Union's history of representation
of IT employees in Unit 1; the petition was under-inclusive by seven job classes and over-
inclusive by nine classes; the proposed unit was inappropriate; and contract bar in a June 17,
2006 tentative agreement with the State of California (State) employer. On July 11, the State
employer also opposed the petition due to: tentative agreement/contract bar; the petition was
over-inclusive by five job classes and under-inclusive by seven classes; failure to provide proof
of majority support because non-represented employees signed the petition; community of
withdrawing their support; the Union also questioned the appropriateness
of
the proposed unit
because it included non-IT job classes2 and excluded five IT classes. On July 11, SEIU further
opposed the petition because: IT Unit 22 was not an employee organization; fraud and
misrepresentation in collecting signatures on the petition; more than 300 employees signed
revocation cards withdrawing their support for severance; the Union's history
of
representation
of
IT employees in Unit
1;
the petition was under-inclusive by seven job classes and over-
inclusive by nine classes; the proposed unit was inappropriate; and contract bar in a June 17,
2006 tentative agreement with the State
of
California (State) employer. On July 11, the State
employer also opposed the petition due to: tentative agreement/contract bar; the petition was
over-inclusive by five job classes and under-inclusive by seven classes; failure to provide proof
of
majority support because non-represented employees signed the petition; community
of
interest
of
IT classes in the proposed unit with other Unit 1 classes; a stable negotiating
relationship with the current exclusive representative; and fragmentation and proliferation
of
the existing State bargaining units. On August 3, Petitioner filed a rebuttal to the State and
SEIU oppositions, and withdrew nine classes from the petition. On August 14, SEIU
responded to IT Unit 22's rebuttal, asserting, inter alia, that Petitioner could not cure the
defective petition by removing the disputed job classes.
On August 25, 2006, the Board agent determined that IT Unit 22 qualified as an
employee organization under PERB precedent; overruled the contract bar arguments and found
the petition timely filed; and rejected the fraud and misrepresentation contentions. The Board
agent, however, dismissed the petition for failure to provide majority proof of support based on
more than 360 employee revocation cards and PERB precedent. The Board agent did not
address unit appropriateness because proof of support was not sufficient.
2 Research Analyst classes and Telecommunications class series.
2

On September
7,
2006, Petitioner requested an extension
of
time to appeal the
dismissal. On September
8,
SEIU opposed the extension. On September 8, the PERB Appeals
Assistant granted the extension. On September 25, IT Unit 22 appealed the dismissal to the
Board. After requesting and receiving an extension
of
time, the Union opposed the appeal on
October 30. The State employer did not respond to the appeal.
On November 6, 2007, in State
of
California (2007) PERB Order No. Ad-367-S, the
Board reversed the Board agent's dismissal
of
the severance petition, finding there was no
legal basis to use the revocation cards to offset proof
of
support. The Board remanded the case
to the PERB General Counsel to determine the sufficiency
of
majority support for the petition
without the revocation cards. SEIU requested an extension
of
time to request reconsideration
of
the Board decision which was granted on November 30, 2007.3
On December 18, 2007, the Board agent found the severance petition was timely filed
before the existence
of
the then-current Unit 1 Memorandum
of
Understanding (MOU)
between the State employer and SEIU, and proof
of
support was sufficient for the petition.
An informal settlement conference was conducted on February 26, 2008, but the
dispute was not resolved. A prehearing conference was conducted on May I, 2008. Formal
hearing was held on August 5 and 6, and October 27, 28, 29, and 30, 2008; and March 2, 3,
and 4, 2009. On October 28, 2008, after Petitioner rested its case in chief, SEIU moved to
dismiss the petition for failure to meet its burden
of
proof that the proposed unit was more
appropriate than current Unit
1.
The State employer joined in the motion to dismiss. The
motion was taken under submission.
On October 30, 2008, Petitioner requested to amend the petition to delete three job
classes of 124 employees in the Telecommunications series. On December 1, the State
The representation case file does not contain SEIU' s request for reconsideration.
3

employer did not oppose the amendment. 	On December 1, SEIU opposed the amendment,
arguing that it was unfair to delete the classes and employees after using them to meet the
requisite proof of support for the petition. The amendment was granted, and the classes were
deleted from the petition at the March 2, 2009 hearing. (PERB Reg. 40240 (c ); State of
California (Department of Personnel Administration) (1989) PERB Decision No. 773-S).4
After preparation of the transcript and receipt of all post-hearing briefs, the case was
submitted for decision on September 2, 2009.5
POSITIONS OF THE PARTIES
Petitioner asserts that the petition should be granted because more than 50 percent of
employees in IT job classes signed it, and two-thirds of Franchise Tax Board (FTB) IT workers
surveyed in January 2009 also expressed their desire to sever. SEIU is negligent in
representing IT workers, as shown by its: inadequate fight against contracting out IT personal
services and consulting contracts; failure to enforce contract language protecting IT
employees; failure to bring the IT reclassification to completion after more than ten years; and
failing to implement the IT apprenticeship program set forth in the MOU. IT training is
inadequate despite a contractual Joint Labor-Management IT Training Committee. IT workers
have a separate supervisory structure. There have been dramatic changes in IT technology
since Unit l was established. 	SEIU has a conflict of interest in representing IT and other
classes together because increased automation productivity has reduced the non-IT workforce.
Unless otherwise indicated, all statutory references are to the Government Code. The
Ralph C. Dills Act (Dills Act) is codified at section 3512 et seq. PERB regulations are
codified at California Code of Regulations, title 8, sections 31001 et seq.
5 Petitioner did not order the transcript. On September 1, 2009, SEIU objected
to the inclusion of "new evidence" in, and request for judicial notice of, IT Police Letter
(ITPL 09-05) in Petitioner's rebuttal brief. Judicial notice is not taken ofITPL 09-05 because
only a brief excerpt of the document is set forth in the brief. The remaining contentions are
treated as argument.
4

There is no evidence that creation of a separate IT Unit would adversely affect meet and confer
relationships; a separate IT Unit would not be the smallest State bargaining unit; and one
additional unit is not fragmentation or proliferation. If IT classes are not professional,
severance should be granted as a skilled crafts unit under the Dills Act. The disputed IT
classes not included in proposed Unit 22 are either vacant, temporary, or instructional classes,
and the non-IT classes included perform the same functions as IT employees. The State
employer and SEIU do not have a stable bargaining relationship. IT Unit 22 has represented
employees seeking severance by this petition for years. There is a community of interest
and/or common working environment shared by all nine bargaining units represented by SEIU,
but the community of interest of IT employees is distinct. A new IT bargaining unit will allow
a smooth transition under the Governor's Reorganization Plan.
SEIU opposes severance. Unit 1 was an appropriate unit when created, and remains
appropriate because IT employees continue to perform the same administrative functions and
similar duties even after technological changes. The job classes in the proposed unit are not
professional; even if they were, the presumption has been rebutted by their inclusion in mixed
Unit 1. Petitioner has not met its burden of showing that Unit 22 is more appropriate than
existing Unit 1 because the petition includes non-IT classes and excludes IT classes. SEIU has
a long, stable bargaining relationship with the State employer. IT employee interests have not
been trampled upon or ignored, but have been addressed in: bargaining; representation; anti-
contracting out efforts in challenging contracts before the State Personnel Board (SPB) and in
legislative activity; and 	Union communications. IT employees in the proposed unit share a
community of interest with Unit 1 employees. Creation of the proposed unit would have a
negative impact on the State because of proliferation. IT Unit 22 has no history of representing
IT workers. Petitioner inflates employee support by misstating evidence and deleting classes
5

from the petition; employee support can be considered only if the proposed unit is more
appropriate. Petitioner's claims that SEID is ineffective in fighting contracting out, and about
the IT reclassification, IT apprenticeship program and IT training are not supported by the
evidence, and do not establish that IT employee interests have been ignored. Petitioner's
claims that IT workers are supervised by IT managers is contradicted by the evidence. Even if
technology has changed, Petitioner has failed to show how that makes Unit 22 more
appropriate than Unit 1. Petitioner presented no evidence of any conflict of interest by SEIU.
The State employer opposes severance. Unit 1 is the largest State bargaining unit, and
Petitioner has not presented any evidence to revisit the original creation of Unit 1 as a broad
unit. Public employer concerns over the potential for unit proliferation and fragmentation have
been given careful consideration by PERB; to grant severance for IT employees would result in
proliferation and fragmentation. 	An additional burden would be imposed in negotiating and
administering labor relations with a new bargaining unit since a contract would need to be
negotiated from the "ground up." Two additional severance petitions are now before PERB
which could result in 24 bargaining units. A stable bargaining relationship between a public
employer and existing employee organizations are important factors not to be lightly disturbed;
SEIU and the State enjoy such a relationship, having negotiated ten (10) contracts, not
including the tentative agreement of 2009. Original Unit 1 is presumed appropriate, and
petitioner must show that proposed Unit 22 is more appropriate than existing Unit 1; proof of
majority support does not entitle petitioner to severance. PERB may only grant or deny the
severance petition as it is. Petitioner has not produced evidence that the proposed unit has a
community of interest separate and distinct from other Unit 1 classes and employees. The
Union's internal representational structure accommodates the interests of the different classes
within Unit 1.
6

7
FINDINGS OF FACT
IT Unit 22 and Unit 1
After the amendments, proposed IT Unit 22 contains 21 job classes and 7,481
employees.6 All of the classes except for the Electronic Data Processing (EDP) Acquisition
series were in existence when PERB established the State bargaining units in 1979. ( Unit
Determination for the State of California (1979) PERB Decision No. 110-S.)7
As of the hearing, Unit 1 contained 45,508 employees in 400 to 450 job classes
employed by 120 State agencies, departments, boards, and commissions. Eighty-eight (88)
appointing powers employ IT workers, ranging from one employee (eight departments) to
982 employees (FTB). The ten largest departments of IT personnel are: FTB; Employment
Development Department (EDD); Department of Technology Services/Teale Data Center
(DTS); Department of Transportation (Caltrans); Department of Corrections and Rehabilitation
(CDCR); State Compensation Insurance Fund (SCIF); Department of Motor Vehicles (DMV);
Department of Health Services/Department of Public Health/Department of Health Care
Services (DHS); California Public Employees Retirement System (CalPERS); and Department
6 Computer Operations Series: Computer Operator, Computer Operator Specialist I and
II - 99 employees. EDP Acquisition Series: Staff and Senior EDP Acquisition Specialist 	31
employees. Information Systems Analyst Series: Assistant, Associate, Staff, and Senior
Information Systems Analyst (ISA) (Specialist) 	4330 employees. Information Systems
Technician Series: Information Systems Technician (IST) Specialist I and II - 261 employees.
Programmer Analyst Series: Associate, Staff, and Senior Programmer Analyst (Specialist) -
1434 employees. Systems Software Specialist Series: Associate and Systems Software
Specialist (Technical) I, II, and III - 1092 employees. Programmer: - 55 employees.
7 SEIU argues that seven additional IT classes should have been included in IT Unit 22.
These are: Programmer Apprentice 	unknown; Senior and Instructional Systems Engineer,
POST 	3 employees; and Program Systems Analyst Series: Senior, Staff, Associate, and
Program Systems Analyst - 29 employees. The Programmer Apprentice class was created in
1981. The two POST classes and the Program Systems Analyst series were established in
1993 and 1995, respectively.

8
of Justice (DOJ). The percentage ofIT employees as part of the total workforce of these
departments ranges from 90 percent (DTS) to 10 percent (EDD, SCIF).
History of Unit 1
Dills Act section 3521 establishes the criteria for appropriate State bargaining units for
the purpose of collective bargaining.
(b) In determining an appropriate unit, the board shall take into
consideration all of the following criteria:
(1) The internal and occupational community of interest among
the employees, including, but not limited to, the extent to which
they perform functionally related services or work toward
established common goals; the history of employee representation
in state government and in similar employment; the extent to
which the employees have common skills, working conditions,
job duties, or similar educational or training requirements; and
the extent to which the employees have common supervision.
(2) The effect that the projected unit will have on the meet and
confer relationships, emphasizing the availability and authority of
employer representatives to deal effectively with employee
organizations representing the unit, and taking into account such
factors as work location, the numerical size of the unit, the
relationship of the unit to organizational patterns of the state
government, and the effect on the existing classification structure
or existing classification schematic of dividing a single class or
single classification schematic among two or more units.
(3) The effect of the proposed unit on efficient operations of the
employer and the compatibility of the unit with the responsibility
of state government and its employees to serve the public.
(4) The number of employees and classifications in a proposed
unit and its effect on the operations of the employer, on the
objectives of providing the employees the right to effective
representation, and on the meet and confer relationship.
(5) The impact on the meet and confer relationship created by
fragmentation of employees or any proliferation of units among
the employees of the employer.
(6) Notwithstanding the foregoing provisions of this section, or
any other provision of law, an appropriate group of skilled crafts
employees shall have the right to be a separate unit of

representation based upon occupation. Skilled crafts employees
shall include, but not necessarily be limited to, employment
categories such as carpenters, plumbers, electricians, painters,
and operating engineers.
( c) There shall be a presumption that professional employees and
nonprofessional employees should not be included in the same
unit. However, the presumption shall be rebuttable, depending
upon what the evidence pertinent to the criteria set forth in
subdivision (b) establishes.
Applying the above criteria, in Unit Determination for the State
of
California, supra,
PERB Decision No. 110-S, the Board created 20 State bargaining units, including Unit
1.
Describing Unit
1,
PERB declared:
ADMINISTRATIVE, FINANCIAL, AND STAFF SERVICES UNIT
The Board finds an administrative, financial and staff services
unit to be appropriate. It consists
of
1,191 classifications
including approximately 32,000 employees. These employees
have varied duties in almost every state agency, but they all
perform essentially administrative functions, in order to
effectuate state and departmental policies and programs. Such
functions include accounting and fiscal control, planning,
personnel, data processing, research/analysis, and general
administration. These employees are appropriately included in a
single unit under the statutory criteria because they share a
community
of
interest in working conditions, general job duties,
skills, and qualifications.
Almost all employees in the administrative unit have similar
working conditions; they usually work regular hours in an office
environment. Overtime is rarely required; when it is, some
employees are not compensated for it, while almost all others are
compensated only on a straight time basis.
The work
of
the vast majority [of] employees in the
classifications in the administrative unit involves gathering
information, analyzing that information, and making decisions or
recommendations based on that information. Even when the
work performed is relatively routine, it involves a certain amount
of discretion and judgment.
Specific skills required differ among classifications, but all
require the ability to communicate effectively orally and in
writing, to analyze data, and to apply data to specific situations.
9

Much of the work requires the ability to work without direct
guidance.
Most classifications require some post-secondary education.
While many require a college degree or substantial experience,
the majority do not require the advanced specialized knowledge
necessary to be considered a professional position.
The Board acknowledges that there may be some employees
included in the unit who might fit the description of professional
employees in section 3521.5. However, it finds that the
presumption against their inclusion in a unit of nonprofessionals
has been rebutted. The Board will not specifically address every
classification which might include employees qualifying as
professional. In general, the work of these employees is so
functionally integrated with that of other administrative
employees, their skills, training, and duties so similar as to rebut
the presumption, particularly when the record demonstrates no
distinct community of interest among them. Even some auditors
who may possibly meet the statutory professional criteria are
required to have skills and training that are essentially the same
as those required by accountants and other employees whose job
duties cannot be considered professional. No auditors are
required to be certified public accountants; thus they have no
special licensing requirements which distinguish them from other
employees in the administrative, financial and staff services unit.
On July 7, 1981, the California State Employees Association (CSEA) was certified as
the exclusive representative of Unit 1 following a representation election conducted by PERB. 8
On December 23, 2003, the CSEA Civil Service Division requested an amendment to
certification to reflect its affiliation with SEIU. The Board approved the amendment to
identify SEIU as the exclusive representative for Unit 1.
Over the years, numerous stipulated unit modification orders have been filed,
transferring job classes to and from Unit 1. The State employer filed several unit modification
petitions which were later withdrawn or dismissed by PERB. (State of California (Department
8 Official notice was taken of the PERB Unit 1 representation file, and the file was
available for inspection throughout the hearing. Official notice may be taken of PERB files
and records. (State of California (Department of Corrections) (1995) PERB Decision
No. 1107-S).

of Personnel Administration) (1990) PERB Decision No. 787-S; State of California
(Department of Personnel Administration) (1992) PERB Decision No. 933-S). One
decertification petition was dismissed for inadequate proof of support. (State of California
(Department of Personnel Administration) (1985) PERB Decision No. 532-S). Two fair share
fee rescission petitions were dismissed for insufficient proof of support, and one fair share fee
election was conducted by PERB.
Two severance petitions have been filed in Unit 1, including this one.9
Bargaining History
As of the hearing, the State employer and SEIU had negotiated and executed ten
MOUs: 	1982-84; 1984-85; 1985-87; 1987-88; 1989-91; 1992-95; 1999-2001; 2002-03;
2003-05; and 2006-08. 10
Six contracts contain provisions specifically for IT classes. The 1987-88 MOU
provided special salary adjustments for Programmer Apprentice and Computer Operator. DPA
also agreed to study establishing Specialist classes for Programmer I and I, and Associate,
Staff, and Senior Programmer Analyst. 	In the 1989-91 agreement, the maximum salary rate of
9 In PERB Case No. SA-SV-172-S, filed November 6, 2008, Petitioner Environmental
Professionals in California Government sought to sever 1,100 to 1,200 Environmental
Planners, Transportation Planners, and Right of Way Agents in 13 job classes employed by ten
State departments; Caltrans is the largest employer. The Board agent dismissed the petition
because Petitioner did not meet its burden of showing that the proposed unit shared a
community of interest distinct from the rest of Unit 1. The proposed decision became final
on November 16, 2010 when exceptions were not filed with the Board (PERB Decision
No. HO-R-175-S).
10 In February 2009, the parties reached tentative agreement on a successor contract, but
the agreement was not approved by the Legislature. In October 2010, the parties reached
tentative agreement on a successor pact which was approved by the Legislature later that
month, and ratified by the Union membership in early November 2010. The 11 th State-SEIU
MOU has a three-year term (July 1, 2010 through June 30, 2013). Official notice is taken of
this information which is posted on the Department of Personnel Administration (DPA)
website. (See fn. 8, supra.)
11

Range C was increased for Programmer I; and an additional step was added to the salary range
for Programmer II and Associate Programmer Analyst (Specialist). In the 1999-2001 contract,
special salary adjustments
of
4. 79
percent were awarded to Staff Information Systems Analyst
(Specialist), Staff Programmer Analyst (Specialist), and Staff EDP Acquisition Specialist;
special salary adjustments
of
4.95 percent were given to Senior ISA (Specialist), Senior EDP
Acquisition Specialist (Technical), and Senior Programmer Analyst (Specialist); and special
salary adjustments
of
5 percent were granted to Programmer I and II. IT classes assigned to
mission critical functions could also receive skills retention differentials
of
10
percent to
20 percent monthly. New position allocation standards were implemented, upgrading
approximately 1,000 Associate level Programmer Analyst (Specialist), Systems Software
Specialist (Technical), and ISA (Specialist) classes. The Programmer Analyst, ISA, and
Systems Software (Specialist) series received a Bay Area 5 percent recruitment and retention
pay differential. The 2002-03 MOU included special post and bid provisions for FTB
Information Systems Technicians and Computer Operators; created the Joint Labor-
Management IT Training Committee; set forth the IT Reclassification proposal; and agreed to
review IT classification language. The 2003-05 agreement continued the special post and bid
provisions for the two FTB IT classes and the Joint Labor-Management IT Training
Committee, and created the IT Joint Apprenticeship and Training Committee. The 2006-08
contract added 5 percent to the maximum salary rate
of
29 IT classes, and continued the Joint
Labor-Management IT Training and IT Joint Apprenticeship and Training Committees.
Organizational Structure
SEIU represents nine State bargaining units.
11
11
In addition to Unit 1, the Union represents Units 3 (Professional Educators and
Librarians), 4 (Office and Allied),
11
(Engineering and Scientific Technician), 14 (Printing and
Allied Trades), 15 (Allied Services), 17 (Registered Nurses), 20 (Medical and Social Services),
12

Each bargaining unit employee represented by the Union is assigned to one of 50
geographic local chapters called District Labor Councils (DLC). Each DLC has an Executive
Board which includes Chapter officers, 12 job stewards, 13 and District Bargaining Unit
Representatives (DBUR) for each of the nine bargaining units. 14 The 50 DBURs are also
members of the Statewide Bargaining Advisory Committee (SBAC). The SBAC elects the
nine Bargaining Unit Negotiating Committees (BUNC), and the Chairperson (Chair), Vice
Chair, and Alternate Vice Chair for each bargaining unit, a total of 19 positions. There are
four elected State officers: President, Vice President and Secretary-Treasurer, Vice President
for Organizing and Representation; and Vice President for Bargaining. The four State officers,
50 DLC Presidents, and nine BUNC Chairs comprise the Local 1000 Council, the Union's
Board of Directors.
In 2008, SEIU established Classification Bargaining Unit Representatives (CBUR)
as part of its operating structure. 15 25 CBURs were created from six job class groups. 16 The
25 CBURs are part of the 75-member SBAC which elects ten CBURs to the nine BUN Cs on a
regional basis. There are four IT CBURs, three from Sacramento, and one representing state
worksites outside Sacramento.
and 21 (Educational Consultant and Librarian). CSEA, and later SEIU, has negotiated Master
Agreements with the State employer applicable to all nine bargaining units, and separate pacts
for each unit.
12 The offices of DLC President, Vice President/Chief Steward, and Secretary-Treasurer
are elected.
13 Job stewards are not elected.
14 DBURs are elected by the DLC members.
15 The CBUR structure is a pilot project with a sunset date of April 2011.
16 The groups are: Administrative and Analytical; Financial; Employment and Health
Services; IT; Environmental and Consumer; and Communications and Research.
13

Marguerita Maldonado (Maldonado), Chair
of
the Unit 1 BUNC, is a IT worker.
17
Maldonado has served as Unit 1 Chair since 2003. Lyle Hintz (Hintz),
18
Petitioner's
representative, and Maldonado served on the bargaining team for the 2002-03 and 2003-05
MO Us; the two also had advisory roles during contract negotiations for the 1999-2001
agreement. 	Three IT employees were on the nine member Unit 1 bargaining team for the
2003-05 contract, and two IT workers were on the Unit 1 bargaining team for the 2002-03
agreement. 	IT employees have been represented at the Unit 1 bargaining table since 1999.
Petitioner IT Bargaining Unit 22 presented no evidence about its organizational
structure and/or representation
of
IT employees other than the filing
of
this severance petition.
Community
of
Interest Factors
Petitioner IT Unit 22, exclusive representative SEIU, and the State employer stipulated
that civil service appointment and promotion is based on the merit principle ascertained by
competitive examination, and discipline against civil service employees is by adverse action
under the Government Code; both processes are overseen by SPB, and are the same for all civil
service employees. The parties further stipulated that all Unit 1 employee salaries; health,
dental, and vision benefits; vacation; and paid holiday time are governed by the Master
Agreement, and are the same. DPA Labor Relations Officer Deborah True (True), assigned to
Unit 1, testified that layoff and furlough provisions are the same for all Unit 1 employees.
7 Maldonado was a Unit 4 Management Services Technician before promoting to the
Unit I IT position of Assistant ISA. Maldonado has been an Associate ISA since June 1999.
18
Hintz worked for the State for 17 years, all in IT classes, until his retirement in
December 2005 as a Staff ISA (Specialist) at DTS. Hintz was a SEIU job steward for 13 years,
and a chief steward for two years. He was a member of the Union's IT Committee and Chair
of the Committee from 1999 to 2005. Hintz was the Chair of the SEIU Contracting Out
Committee from 2003 to 2005.
14

15
Petitioner's witnesses Robert Jenkins (Jenkins) and Marlene Carter (Carter) supervise
IT employees at DTS;
19
90 percent
of
the DTS workforce are IT workers. Union witnesses
Kevin Curtis (Curtis), Steven McVeigh (McVeigh), and Marie Harder (Harder) work for the
Department
of
Developmental Services (DDS), SCIF, and DHS, respectively; each has been,
or is currently supervised by non-IT personnel.
Eleven witnesses testified at the hearing.20 Only Jenkins, Hintz, and Curtis
21
have spent
their entire State service in solely IT classes. The remaining witnesses started in Unit 4 classes
and promoted to Unit 1 non-IT classes and/or IT classes, and/or transferred to IT classes from
non-IT Unit 1 classes;22 transferred from non-IT Unit 1 classes to IT classes;23 or were
employed only in non-IT classes.24
Only Jenkins and Paulsen have college and/or advanced degrees in IT-related fields.
Curtis, McVeigh, and Harder have degrees in areas unrelated to IT. Maldonado has
community college credits.
All witnesses testified about the interaction between Unit 1 non-IT and IT classes,
and among Unit 1 IT classes and other bargaining unit employees at their appointing power
and other departments. Mc Whirter and Maldonado performed IT functions while employed in
L Jenkins has not been a bargaining unit employee for over ten years. Carter, Hintz'
sister, did not indicate how long she had been a supervisor.
20 Petitioner called nine witnesses, including Maldonado and himself. The Union
presented six witnesses, including Maldonado. True was the only State witness.
21
Curtis is a relatively new State employee, with five years
of
service.
22 Claudia Neal (Neal); Carter; Maldonado; Karen Mease (Mease); True; Steve Kawai
(Kawai), who retired 	2001; and Sean McWhirter (McWhirter).
23 Harder; Rodney Will (Will), who retired in December 2008; Christopher Paulsen
(Paulsen); and Mc Veigh.
24 J.J. J elincic (J elincic ); and Mc Whirter.

non-IT Unit 1 and 4 classes, respectively. Kawai worked with non-IT Unit 1 analysts and
accountants, and Unit 4 clericals at DTS. Neal worked with over 200 IT and 1000 Unit 1
employees at BOE. While employed in IT positions with DHS, Mease worked with non-IT
Unit 1 analysts from 5 percent to 25 percent of the time. While holding IT positions at DHS
and Emergency Medical Services Authority, Harder worked with non-IT Unit 1 analysts and
accountants, and Unit 4 clerical workers on a daily basis. The employees in IT classes outside
of Sacramento had even greater interactions with non-IT Unit 1 coworkers and non-Unit 1
bargaining unit personnel. Will worked in the Fresno State building for EDD and DMV with
Unit 1 analysts and program representatives, and Unit 4 clerical employees. McVeigh works
for SCIF in the Bay Area, and has daily work-related contact with non-IT Unit 1 program
representatives. Curtis works for a DDS Developmental Center in Southern California, and
has daily work-related contact with non-IT Unit 1 analysts, and regular contact with Unit 3, 4,
15, and 20 employees represented by SEIU, and Unit 7, 16, 18, and 19 workers represented by
other unions or associations.
Employee Dissatisfaction/Support for Severance
Only 40 percent of the FTB IT employees voted in the January 2009 survey. Two-
thirds of those favored a separate IT unit.
Paulsen, Vice President/Chief Steward of SEIU DLC 785, questioned the Union's
ability to represent IT employees. Neal is disappointed in the Union's progress for IT workers
but holds the State more responsible than SEIU for that lack of progress. Jelincic does not
support severance. All other Petitioner witnesses were non-represented supervisors, retirees,
or non-IT Unit 1 employees.
The Union's witnesses did not support severance for various reasons. They are all
white collar workers and have common issues in working conditions and supervision
16

(McVeigh). IT workers cannot do their jobs without working with non-IT employees (Will).
IT and non-IT employees are stronger together and share work-related concerns and issues
(Harder). The Union is trying to address bargaining unit issues in Unit 1 by challenging
contracting out (Mease). Maldonado provided numerous examples
of
SEIU activities
in
negotiating contracts and grievance-arbitration, challenging subcontracting, IT reclassification,
IT training, and the IT apprenticeship program.
Curtis' experience is instructive. He signed the severance petition at a Union meeting
because printers and licensed vocational nurses had their own bargaining units, and IT workers
were lost among 40,000 other Unit 1 employees. His opinion changed after becoming
involved with the Union as a
job
steward, DBUR, and the non-Sacramento CBUR. Curtis now
opposes severance because there is strength in numbers, especially in challenging outsourcing.
Impact on State Operations
The State employer opposes creation
of
a separate bargaining unit as undue unit
proliferation and excessive fragmentation. DP A employs six Labor Relations Officers and one
Labor Relations Manager to negotiate MOUs and administer contractual grievance-arbitration
processes for the
21
units. Establishing a new unit would "exponentially" increase the
workload
of
DP A labor relations representatives,25 and "stretch" existing resources.
25
A severance petition in State Bargaining Unit 7 (Protective Services and Public
Safety), filed August 8, 2008, sought to sever 53 peace officer classes in a unit
of
2,656
employees, and was being litigated at the time
of
this hearing. On March 26, 20 l 0, the
Administrative Law Judge dismissed the petition because Petitioner Peace Officers
of
California did not meet its burden
of
overcoming the rebuttable presumption favoring original
Unit 7 as the more appropriate unit. Exceptions were filed in April 2010, and the case is
pending before the Board (PERB Case No. SA-SV-171-S). (See also fn. 9, supra.)
17

True is assigned to Units
1,
11, and 12.26 Creation
of
a new bargaining unit would
require the State to bargain an agreement "from the ground up" and/or from "scratch." The
last Unit 1 contract took over nine months to negotiate and reach agreement, even though the
expired MOU provided a starting point for bargaining a successor contract.
True reviews 100 to 200 grievances for Unit 1 each year. New contracts also require
providing information to the Legislature and Legislative Analyst's Office, and training State
Employee Relations Officers about MOU terms.
Based on her experience, True believes that the State employer and SEIU have a stable
bargaining and long-term working relationship that benefits both parties, allowing them to
work cooperatively and reach resolution.
ISSUE
Should proposed IT Bargaining Unit 22 be severed from the established Professional
Administrative, Financial, and Staff Services Bargaining Unit 1?
CONCLUSIONS OF LAW
Under PERB regulations, an employee organization may petition to become the
exclusive representative
of
an appropriate unit consisting
of
a group
of
employees who are
already members
of
a larger established unit represented by an incumbent exclusive
representative. (PERB Reg. 40200(a).) The petition must be accompanied by proof
of
majority support in the appropriate unit. (PERB Reg. 40200(b ).) The Board shall investigate
and, where appropriate, conduct a hearing and/or a representation election, or take such other
26
True has had the Unit 1 assignment since 2007. Unit
11
is represented by SEIU.
(See fn. 10, supra.) Unit 12 (Crafts and Maintenance) is represented by the International
Union of Operating Engineers (IUOE). True has also been assigned to Units 13 (Stationary
Engineers), represented by IUOE; 16 (Physicians, Dentists, and Podiatrists), represented by the
Union of American Physicians and Dentists; and 19 (Health and Social Services/Professional),
represented by American Federation of State, County, and Municipal Employees.
18

action as deemed necessary in order to decide the questions raised by the petition. (PERB
Reg. 40260(a).)
Section 3541.3(a) authorizes PERB to determine an appropriate unit in disputed cases.
27
Section 3
521
of
the Dills Act also requires an appropriate unit
of
employees for collective
bargaining purposes. In determining the appropriateness
of
a unit, the Board must follow the
criteria set forth in Dills Act section 3521(b) and (c), supra. The statutory criteria are not
applied rigidly, but must be considered, weighed, and balanced. (State
of
California
(Department
of
Personnel Administration)
(l
990) PERB Decision No. 794-S.) Community
of
interest is evaluated based on the totality
of
circumstances, and is not determined by a checklist
of
factors. 	(Monterey Peninsula Community College District (1978) PERB Decision No. 76.)
The two most important statutory criteria appear to be community
of
interest and bargaining
history, however. (State
of
California (Department
of
Personnel Administration) (1993) PERB
Decision No. 988-S.)
Unit 1 was one
of
20 bargaining units created by PERB in 1979. (Unit Determination
for the State
of
California, supra, PERB Decision No. 110-S.) Until this June 2006 petition,
and the two 2008 petitions for severance in Units 7 and
1,
respectively, the Board had received
only four requests to alter the statewide units. In State
of
California (Department
of
Personnel
Administration), supra, PERB Decision No. 773-S, the Board dismissed a petition seeking to
sever uniformed peace officers from existing Unit 7, a mixed unit
of
peace officers and non-
sworn personnel based on a shared community
of
interest with bargaining unit employees, a
history of stable and successful negotiations, and the potential for proliferation of other law
enforcement units.
27
Section 3541.3 is part of the Educational Employment Relations Act (EERA),
codified at section 3540 et seq. Section 3541.3 is incorporated by reference in the Dills Act.
(Sec. 3513(d).)
19

In State
of
California (Department
of
Personnel Administration), supra, PERB
Decision No. 794-S, the Board established a rebuttable presumption in favor
of
the established
20 bargaining units. A petitioner seeking to modify an existing unit bears the burden
of
proving that the proposed unit is more appropriate than the established unit. PERB approved a
unit modification petition filed by CSEA, dividing current Unit 3 (Library and Education) into
two bargaining units, 3 (Professional Educators and Librarians) and
21
(Educational
Consultant and Librarian). The rationale was twofold: lack
of
common skills, working
conditions, and duties; and a bargaining relationship between the exclusive representative and
employer adversely impacted by the differences between institutional teachers and office-based
consultants and librarians.28
In State
of
California (Department
of
Personnel Administration), supra, PERB
Decision No. 988-S, the Board affirmed the rebuttable presumption standard, dismissing a
severance petition to remove
21
psychologist classes from existing Unit 19, based on a shared
community
of
interest with the current unit and a stable bargaining history. 	In State
of
California (Department
of
Personnel Administration) (1993) PERB Decision No. 1025-S,
PERB again relied on the rebuttable presumption measure when it dismissed a severance
petition to remove 172 pharmacists from established Unit 19, based on failure to show a
community
of
interest separate and distinct from the existing unit,29 and the bargaining history
28
Prior Board unit determination decisions remain binding to the extent that
circumstances and PERB precedent remain the same. (Regents
of
the University
of
California (1986) PERB Decision No. 586-H.) The rebuttable presumption is similar to that
for public school classified employees. (Livermore Valley Joint Unified School District (1981)
PERB Decision No. 165; see also Los Angeles Unified School District (1993) PERB Order
No. Ad-250.)
29 See also Elk Grove Unified School District (2004) PERB Decision No. 1688.
20

and organizational structure
of
the exclusive representative which accommodated the interests
of
the pharmacists.
A separate unit is not warranted because a group
of
employees share a community
of
interest among themselves when that group forms only a part
of
a larger group sharing
similar conditions
of
employment and job functions. 	(Sacramento City Unified School District
(1977) EERB Decision No. 30;30 San Diego Unified School District (1981) PERB Decision
No. 170; State
of
California (Department
of
Personnel Administration), supra, PERB Decision
No. 773-S.)
Petitioner argues that the community
of
interest for IT Unit 22 is distinct from Unit 1
and all nine bargaining units represented by SEIU. The facts presented at the hearing do not
support such a finding. 	Rather, the evidence shows that employees in the proposed IT unit
have much in common and are integrated with other Unit 1 employees. Salaries and benefits,
furloughs and layoff provisions, appointment and promotion, disciplinary procedures, and
hours
of
work and working conditions generally are the same for IT and non-IT Unit 1
employees. 	IT employees are supervised by IT supervisors at only one appointing authority,
DTS, a unique department where 90 percent
of
the workforce are IT personnel. IT employees
frequently and regularly interact with other Unit 1 classes and workers in other bargaining
units, even at DTS. Only three
of
the
11
witnesses have been IT employees during their entire
State careers; the others either promoted from Unit 4 classes or transferred from non-IT Unit 1
classes into IT jobs. It cannot be concluded that IT employees share a community of interest
among themselves, much less a community of interest separate and distinct from other Unit 1
employees.
30
Prior to January 1978, PERB was known as the Educational Employment Relations
Board (EERB).
21

PERB established Unit 1 as a mixed professional and non-professional bargaining unit.
(Unit Determination/or the State of California, supra, PERB Decision No. 110-S.) Only two
witnesses have college or advanced degrees in IT-related fields, while three have college
degrees in non-IT areas. Thus, the record is devoid of any evidence rebutting the
appropriateness of the mixed professional/non-professional Unit 1 originally created by the
Board. (See also State of California (Department of Personnel Administration), supra, PERB
Decision No. 794-S; State of California (Department of Personnel Administration), supra,
PERB Decision No. 988-S.)
Petitioner contends that severance is justified because dramatic changes in technology
have occurred since Unit 1 was established. Petitioner failed to present any evidence that these
changes make proposed IT Unit 22 more appropriate than Unit 1, and/or to rebut the
presumption in favor of the original unit, however. (State of California (Department of
Personnel Administration), supra, PERB Decision No. 1025-S.)
The facts introduced at the hearing do not support a unique or separate and distinct
community of interest of an IT Unit apart from the community of interest in current Unit 1.
Thus, severance would be warranted only if the bargaining history showed that issues of
primary concern to IT employees were not addressed in negotiations. Petitioner must
demonstrate that the interests of the petitioned-for employees have been trampled upon or
ignored, and/or that their representational rights have been abrogated because of the existing
Unit 1 structure. (State of California (Departmeni of Personnel Administration), supra, PERB
Decision No. 773-S.) Stability in bargaining and lack of dissension have been recognized as
important factors not to be disturbed lightly. (Livermore Valley Joint Unified School District,
supra, PERB Decision No. 165.) Even a history of dissension and lack of alternatives to
mediate legitimate conflicts do not mandate a separate unit; severance is appropriate only in
22

circumstances where the history of negotiations and representation demonstrate that such
processes are incapable of effectively addressing subjects within the scope of representation.
(Los Angeles Unffied School District (1998) PERB Decision No. 1267; State of California
(Department of Personnel Administration), supra, PERB Decision No. 794-S.)
Petitioner asserts that the State employer and SEIU do not have a stable bargaining
relationship, and the Union has been negligent in representing IT employees in contracting out,
enforcing contract language protecting IT employees, delaying IT reclassification and the
apprenticeship program, and providing inadequate training. The evidence is to the contrary.
The State and SEIU had negotiated, executed, and ratified ten MO Us as of the hearing, and an
11 th successor agreement after the hearing. 	Six of the ten contracts contained special
provisions for IT classes such as special salary adjustments, increased maximum salary rates,
new position allocation standards upgrading 1000 Associate level jobs, recruitment and
retention differentials, post and bid, the IT reclassification proposal, and the Joint Labor
Management IT Training Committee and IT Joint Apprenticeship and Training Committee. IT
employees have been represented at the Unit 1 bargaining table since 1999. Maldonado, the
Unit 1 BUNC Chair, is an IT employee. Petitioner's representative, Hintz, a former IT
employee, served with Maldonado on the Unit 1 bargaining teams for the 2002-03 and 2003-05
contracts, and both were advisors during negotiations for the 1999-200 I agreement. In 2008,
SEIU established CBURs as part of the Union's organizational structure, creating 25 CBURs
from six job groups; IT is one of the six groups, and four of the 25 CBURs represent IT. There
is no evidence that any group was denied the right or opportunity to be an active member in
SEIU as a job steward, DLC officer or DBUR, or as a Unit 1 CBUR. DPA reviews 100 to 200
grievances filed by SEIU in Unit 1 each year. 	Given this history of representation and
negotiations, the facts do not demonstrate that the interests of employees in proposed IT
23

Unit 22 have been trampled upon or ignored, or that their representational rights have been
abrogated due to the existing bargaining unit structure.
The evidence of employee dissatisfaction and/or support for the severance petition is
minimal and unpersuasive. The evidence opposing severance is more convincing and is
therefore given greater weight. Feelings are not facts, however, and the wishes of employees
are just one factor for consideration; that factor alone does not make a proposed unit more
appropriate than the existing unit. (State of California (Department of Personnel
Administration), supra, PERB Decision No. 1025-S.)
Petitioner has failed to meet its burden of showing that the employees in proposed IT
Unit 22 have a community of interest separate and distinct from the rest of existing Unit 1, and
that the history of representation requires severance of these employees in a separate
bargaining unit. Petitioner has failed to provide sufficient justification for dismantling the
bargaining unit originally created by the Board in Unit Determinationfor the State of
California, supra, PERB Decision No. 110-S, or disrupting existing patterns of representation
in Unit 1. Because Petitioner has not rebutted the presumption that the existing unit is more
appropriate than the proposed unit, it is unnecessary to decide the issue of over- and under-
inclusiveness raised by SEIU. For the same reason, it is also unnecessary to address the
potential for unit fragmentation and proliferation, and adverse impact on State operations,
raised by the State employer.31
31 In State of California (Department of Personnel Administration), supra, PERB
Decision No. 773-S, and State of California (Department of Personnel Administration), supra,
PERB Decision No. 1025-S, the Board concluded there was little and/or unpersuasive evidence
that negotiating and administering an additional agreement caused by one new unit would
negatively impact State operations and resources. While not untenable, the additional burden
on the State is a factor to be considered, especially in the absence of countervailing factors.
(State of California (Department of Personnel Administration), supra, PERB Decision
No. 988-S.)
24

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-165-S, State of California and IT
Bargaining Unit 22 and SEIU Local I 000, CSEA, 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with 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, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (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,
subdivision (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.)
25

26
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, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Christine A. Bologna
Acting Chief Administrative Law Judge