County of Riverside (PERB 2239M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

RIVERSIDE SHERIFFS' ASSOCIATION,

Charging Party, Case Nos. LA-CE-353-M
LA-CE-438-M
v.
COUNTY OF RIVERSIDE, PERB Decision No. 2239-M

February 24, 2012
Respondent,

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721 AND LABORERS
LOCAL 777,

Interested Parties.

Appearances: Law Offices of Dennis J. Hayes by Adam E. Chaikin, Attorney, for Riverside
Sheriffs’ Association; The Zappia Law Firm by Edward Zappia, Attorney, for County of
Riverside.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION

HUGUENIN, Member: These consolidated cases are before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the County of Riverside (County) to a
proposed decision (attached) by a PERB administrative law Judge (ALJ). The charge in Case
No. LA-CE-353-M, filed February 15, 2007, alleged that the County violated the Meyers-
Milias-Brown Act (MMBA)' by unlawfully denying the Riverside Sheriffs’ Association’
(RSA) petition for unit modification. The charge in Case No. LA-CE-438-M, filed March 19,

2008, alleged that the County violated the MMBA by unlawfully denying a second

modification petition by RSA.

'MMBA is codified at Government Code section 3500 et seq. Unless otherwise noted,
all statutory references are to the Government Code.

In the proposed decision, the ALJ determined that the County's denials
ofRSA's
modification petitions were unlawful and violated MMBA sections 3503, 3506, 3509(b)2 and
PERB Regulation 32603(±).3
We have reviewed the proposed decision and the record in light
of
the County's
exceptions, the responses thereto, and the relevant law. Based on this review, we find the
ALJ' s findings
of
fact and conclusions
of
law to be well-reasoned, adequately supported by the
record, and in accordance with applicable law. Accordingly,
\Ve
adopt the
i\LJ's
decision as
the decision
of
the Board itself, as supplemented by the brief discussion below regarding the
County's exceptions.4
PROCEDURAL BACKGROUND
On February 15, 2007, RSA filed Case No. LA-CE-353-M.
On March 19, 2008, RSA filed Case No. LA-CE-438-M.
2 MMBA section 3503 guarantees that "[r]ecognized employee organizations shall have
the right to represent their members in their employment relations with public agencies."
Section 3506 states that public agencies "shall not interfere with, intimidate, restrain, coerce or
discriminate against public employees because
of
their exercise
of
their rights under
Section 3502." Section 3509(b) provides that a violation
of
these sections "or
of
any rules and
regulations adopted by a public agency pursuant to Section 3507 or 3507.5 shall be processed
as an unfair practice charge by the board."
3 PERB regulations are codified at California Code
of
Regulations, title
8,
section 31001 et seq. PERB Regulation 3260 3 states in part:
It shall be an unfair practice for a public agency to do any of the
following:
(f) Adopt or enforce a local rule that is not in conformance with
MMBA.
4 The County requests oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office
of
Education (1991) PERB Decision No. 913.) Based on our review of the record, all of the above
criteria are met in this case. Accordingly, the County's request for oral argument is denied.
2

On July 22, 2008, RSA amended its charge in Case No. LA-CE-438-M.
On August 5, 2008, the Office
of
the General Counsel issued a complaint in both
matters.
On October
7,
2008, Service Employees International Union, Local
721
(SEIU)5 and
Laborers Local 777 (LIUNA) were joined
as
Interested Parties by Order.
On July 22, 2009, RSA petitioned to unwind the joinder.
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On August 17, 2009, a formal hearing was held.
On December 30, 2009, the ALJ issued the proposed decision.
BACKGROUND
The County's Employee Relations Resolution (ERR) section 10(1) states:
A registered employee organization may propose the
modification
of
an established unit by filing a request with the
Human Resources Director, accompanied by proof that its
represented members comprise
15
percent
of
the employees in the
unit. The Human Resources Director may also propose a
modification.
On August 26, 2006, RSA filed a petition for modification, seeking to move welfare
fraud investigators from the existing inspection and technical unit represented by LIUNA and
supervising welfare fraud investigators from the existing supervisory unit represented by SEIU
into RSA's existing law enforcement unit. With its petition, RSA submitted three employee
authorization cards signed by the supervising welfare fraud investigators and 17 employee
authorization cards signed by the welfare fraud investigators. At the time, there were three
supervising welfare fraud investigators and approximately 25 welfare fraud investigators. 	The
inspection and technical unit had 1,405 members and the supervisory unit had 1,327 members.
5 SEIU did not make an appearance at the formal hearing.
3

On September 1, 2006, the County, by letter, denied the petition on the basis that there
was not a 15 percent showing of support from the two donor units, the inspection and technical
unit represented by LIUNA and the supervisory unit represented by SEIU.
On August 29, 2007, RSA filed another petition for modification, seeking to move
community service officers (CSOs) from the existing inspection and technical unit represented
by LIUNA into RSA's existing law enforcement unit. With its petition, RSA submitted proof
of support from 116 CSOs. .li~t the time, there \Vere 125 CSOs. The inspection and technical
unit had 1,485 members.
On October 11, 2007, the County, by letter, denied the petition on.the basis that there
was not a 15 percent showing of support from the donor unit, the inspection and technical unit
represented by LIUNA.
THE ALJ'S PROPOSED DECISION
The ALJ concluded that it is virtually impossible for a petitioner to garner support from
employees represented by another union, other than those it seeks to add, whom they have no
interest in and who have no interest in them.
The ALJ further concluded that, under the County's interpretation of Section I 0(1 ), no
severance-type modification petition could ever be processed unless the petitioner seeks to add
at least 15 percent of the donor's unit to its own.
Accordingly, the ALJ concluded that the County's interpretation of ERR section 10(1)
to require a 15 percent showing of support from the donor units is unreasonable, and that its
application of that interpretation to deny RSA's unit modification petitions was unlawful.
THE COUNTY'S EXCEPTIONS
1. 	The County excepts to the ALJ' s conclusion that " ... it is virtually impossible for a
petitioner to garner support from employees represented by another union (other than
4

those it seeks to add) whom they have no interest in and who have no interest in them."
(Proposed Dec. at
p. 9)
2.	
The County excepts to the ALJ's conclusion
that"
... taking the County's position in
the most favorable light, no severance-type modification petition could ever be
processed unless the petitioner seeks to add at least
15
percent
of
the donor's unit to its
own. 	[The ALJ] cannot read section 10(
1)
to require this, nor has the County suggested
3.	
The County excepts
to
the ALJ's conclusion
that"
... the County's interpretation
of
ERR section 10(1) to require, inter alia, a
15
percent showing
of
support from the donor
unit(s), is unreasonable; and that its application
of
that interpretation to deny RS
A's
unit modification petitions was unlawful." (Proposed Dec. at p. 10)
In response to the exceptions, RSA generally agrees with the ALJ' s determination on
all issues.
DISCUSSION
In its exceptions to the ALJ's conclusions, the County disputes the ALJ's determination
that it would have been impossible for RSA to obtain
15
percent
of
support
of
the donor units.
In its exceptions, the crux
of
the County's argument is that the County's interpretation
of
ERR
section 10(
1)
is reasonable, and the application
of
that interpretation to deny RSA' s unit
modification petitions was lawful. 6
We disagree with the County's argument, and find that the ALJ addressed adequately
each of the arguments presented by the County in its exceptions. Accordingly, we agree with
the ALJ' s determination that the County's interpretation of ERR section 10( 1) is unreasonable.
The County did not except to the ALJ's findings of fact. 	"An exception not
specifically urged shall be waived." (PERB Reg. 32300(c).) Accordingly, there is no issue
before the Board regarding the ALJ' s findings of fact.
5

ORDER
For the above reasons and based upon the entire record in this case, the Public
Employment Relations Board (PERB) finds that the County of Riverside (County) violated the
Meyers-Milias-Brown Act (MMBA), Government Code sections 3509(b), 3503 and 3506, and
PERB Regulation 32603. The County violated the MMBA by unreasonably applying its
Employee Relations Resolution (ERR) to refuse to process two petitions filed by Riverside
Sheriffs' Association (RSA). By the same conduct, the County also violated the :rvHvfB.A by
denying to RSA the right to represent its members, and by interfering with the rights of its
employees to be represented by the employee organization of their choice.
Pursuant to the MMBA section 3509(b) of the Government Code, it is hereby
ORDERED that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Denying unit modification petitions brought by recognized employee
organizations because they are not accompanied by proof of support from 15 percent of the
employees in the donor unit(s);
2. 	Denying RSA's unit modification petitions dated August 26, 2006 and
August 29, 2007;
3. 	Denying RSA its right to represent its members in their employment
relations with the County;
4. 	Interfering with employees' exercise of their rights under the MMBA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	POLICIES OF 	MMBA:
1. 	Within ten (10) workdays of the service of a final decision in this matter,
commence processing RSA's above-cited modification petitions pursuant to the procedures in
ERR section 10.
6

2. 	Within ten ( 10) workdays of the service of a final decision in this matter,
post at all work locations where notices to County employees customarily are posted, copies of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of the County, indicating that it will comply with the terms of this Order. Such posting shall
be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The County
shall provide reports, in writing, as directed by the General Counsel or his/her designee. 	All
reports regarding compliance with this Order shall be concurrently served on RSA.
Members McKeag and Dowdin Calvillo join in this Decision.
7

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case Nos. LA-CE-353-M and LA-CE-438-M,
Riverside Sheriffs' Association
v.
County
of
Riverside, in which all parties had the right to
participate, it has been found that the County
of
Riverside (County) violated the Meyers
Milias-Brown Act (MMBA), Government Code section 3500 et seq. by unreasonably applying
its local rules to deny the unit modification petitions filed by Riverside Sheriffs' Association
(RSA).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Denying unit modification petitions brought by recognized employee
organizations because they are not accompanied by proof
of
support from
15
percent
of
the
employees in the donor unit(s);
2.	
Denying RSA's unit modification petitions dated August 26, 2006 and
August 29, 2007;
3.	
Denying RSA its right to represent its members in their employment
relations with the County;
4.	
Interfering with our employees' exercise
of
their rights under the MMBA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Immediately commence processing RSA's above-cited unit modification
petitions pursuant to the procedures in Employee Relations Resolution section 10.
Dated: 	COUNTY OF RIVERSIDE
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
RIVERSIDE SHERIFFS' ASSOCIATION,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent,
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721 and LABORERS LOCAL
777,
Interested Parties.
UNFAIR PRACTICE
CASE NOS. LA-CE-353-M
LA-CE-438-M
PROPOSED DECISION
(12/30/2009)
Appearances: Law Offices
of
Dennis
J.
Hayes by Adam E. Chaikin, Attorney, for Charging
Party; The Zappia Law Firm by Edward Zappia, Attorney, for Respondent; Rothner, Segall,
Greenstone & Leheny by Jean Shin, Attorney, for Interested Party Laborers Local 777.
Service Employees International Union, Local 721 did not make an appearance.
Before Ann
L.
Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
On February 25, 2007, the Riverside Sheriffs' Association (RSA) filed an unfair
practice charge in Case No. LA-CE-353-M, alleging that the County
of
Riverside (County)
unlawfully denied its petition for unit modification. On March 19, 2008, RSA filed another
unfair practice charge in Case No. LA-CE-438-M alleging that the County unlawfully denied a
second modification petition. On August 5, 2008, the General Counsel
of
the Public
Employment Relations Board (PERB or Board) issued a complaint in each
of
the two cases,
both alleging that by this conduct the County violated the Meyers-Milias-Brown Act (MMBA)
and thereby committed an unfair practice under section 3 509(b) and PERB Regulation

32603(£), and that by the same conduct the County violated section 3503 and 3506. 1 In its
answers to the complaints, the County denied any wrongdoing.
The two cases were consolidated and on September 24, 2008, an informal settlement
conference was held, but the matter was not resolved.
Service Employees International Union, Local
721
(SEIU) and Laborers Local 777
(LIUNA) were joined as Interested Parties by Order
of
October
7,
2008. On July 22, 2009,
RSA petitioned to unwind the joinder, which was denied by Order
of
August 4, 2009.
	On
August 12, 2009, RSA filed two motions to exclude evidence, one regarding the creation and
adoption
of
the local rule at issue, and one regarding the past practice under the local rule.
Formal hearing was held before the undersigned on August 17, 2009. At the hearing,
the undersigned announced that all relevant evidence would be accepted, but that RSA's
motion could be argued by the parties in their post-hearing briefs and would be taken under
consideration in the proposed decision. Upon the submission
of
post-hearing briefs, the matter
was submitted for decision on November 25, 2009.
The MMBA is codified at Government Code section 3500 et seq. 	Section 3503
guarantees that "[R]ecognized employee organizations shall have the right to represent their
members in their employment relations with public agencies." Section 3506 states that public
agencies "shall not interfere with, intimidate, restrain, coerce or discriminate against public
employees because
of
their exercise of their rights under Section 3502." Section 3509(b)
provides that a violation
of
these sections "or of any rules and regulations adopted by a public
agency pursuant to Section 3507 or 3507.5 shall be processed as an unfair practice charge by
the board."
PERB regulations are codified at California Code of Regulations, title
8,
section 31001,
et seq. 	PERB Regulation 32603 states in part:
It shall be an unfair practice for a public agency to do any of the following:
(f) Adopt or enforce a local rule that is not in conformance with MMBA.
2

FINDINGS OF FACT
There are virtually no factual disputes. The County is a public agency within the
meaning
of
MMBA section 350l(c). RSA is a recognized employee organization within the
meaning
of
section 350l(b), representing the County's Law Enforcement unit.
MMBA section 3507 provides in pertinent part:
(a) A public agency may adopt reasonable rules and regulations
after consultation in good faith with representatives
of
a
recognized employee organization or organizations for the
administration
of
employer-employee relations under this
chapter.
The rules and regulations may include provisions for all
of
the
following:
(3) Recognition
of
employee organizations.
(c) No public agency shall unreasonably withhold recognition
of
employee organizations.
Section 3507.1 provides:
(a) Unit determinations and representation elections shall be
determined and processed in accordance with rules adopted by a
public agency in accordance with this chapter.
For several years the County has maintained an Employee Relations Resolution (ERR),
arrived at after consultation with its various unions, including RSA. Section
10
contains
procedures for unit modification. Section 10.1 reads:
A registered employee organization may propose the
modification
of
an established unit by filing a request with the
Human Resources Director, accompanied by proof that its
represented members comprise
15
percent of the employees in the
unit. The Human Resources Director [HRD] may also propose a
modification.
Section 10.4 provides that if no other union challenges the proposed modification and the HRD
determines the proposed unit is not appropriate, the petitioner may modify its petition or
3

request a hearing before the Board
of
Supervisors. 	Section 10.5 provides that any other
recognized union may challenge the proposed unit; section 10.6 provides that after a challenge,
the petitioner may amend its petition; and section
10.
7 provides that
if
the challenge has
not
been resolved, a hearing shall be held before the Board
of
Supervisors.
The ERR does not contain any specific provision for a severance petition. Rather, what
would otherwise be treated as a severance petition is handled as a modification petition under
section 10.
On August 26, 2006, RSA filed a petition for modification, seeking to move Welfare
Fraud Investigators from a unit represented by LIUNA and Supervising Welfare Fraud
Investigators from a unit represented by SEIU into RSA's existing Law Enforcement unit. 	The
petition was accompanied by proof
of
support from
17
of
the 24-25
of
the Welfare Fraud
Investigators and from all three
of
the Supervising Welfare Fraud Investigators. By letter
of
September
1,
2006, the County denied the petition on the basis that there was not also a 15
percent showing
of
support from the two donor units. On August 29, 2007, RSA filed another
petition for modification, seeking to move Community Service Officers (CSOs) from the same
LIUNA unit into RSA's existing Law Enforcement unit, accompanied by proof
of
support
from 116
of
the 120-125 CSOs. By letter
of
October 11, 2007, the County denied this petition
on the same grounds.
Tom Prescott (Prescott), Employee Relations Division Manager, testified that in his
five-year tenure with the County, modification petitions had been submitted, but all were
denied for lack
of
a
15
percent showing
of
support from the donor units. Only one
modification action was processed: in 2004 the HRD proposed to remove classifications from
two ofRSA's units and create new units. No showing of interest was required or provided.
RSA filed a challenge under ERR section l 0.5 and the matter went to hearing under ERR
4

Section
10. 7,
before a hearing officer designated by the Board
of
Supervisors. After hearing,
the proposed modifications were denied.
According to the County, ERR section 10.1 must be read to require that all units
proposed to be changed by a modification petition, i.e., the donor as well as the recipient
unit(s), must show
15
percent support for the modification. The County argues that this is the
only reasonable interpretation because, in conformance with the purposes
of
the MMBA, it
"preserv[es] harmonious and stable labor relations
...
[and]
...
avoid[
s]
the inevitable
destabilization
of
labor relations
...
if
such hostile petitions for unit modification were
permitted to proceed without adequate support or consent
of
all affected bargaining unit
employees." The County postulates that
if
RSA's interpretation were upheld, it "could repeat
such a modification many times and raid the other unions a handful at a time and vice-versa. It
would be chaos
...
[and]
...
will create countless unnecessary battles
of
raiding unions and
stealing members." The County claims it has had a consistent past practice
of
denying
modification petitions without a
15
percent showing from all affected unions. Finally, the
County notes that where only a small minority
of
employees wish to move from one union to
another, the HRD has the authority to propose a modification without any showing
of
support.
LIUNA agrees with the County, and points out that the
15
percent rule would not
deprive employees
of
their right to union representation
of
their choice, because
"if
a
majority-or
significant
minority-of
employees in a bargaining unit grow displeased with
their representation, they can be moved from that bargaining unit into another."
RSA contends that ERR section 10.1 must be read to require only a
15
percent showing
from the recipient unit, which in this case the County has already conceded, as well as a
showing from those classifications proposed to be added, which RSA has more than supplied.
According
to
RSA, the County's interpretation is unreasonable and creates an "impossible
5

threshold" which "ensures that no modification petition (submitted by an employee
organization) will ever get to the hearing stage, in which the appropriateness
of
the unit would
be determined." [Parenthesis in original.] RSA contends that its interpretation would not
destabilize labor relations, as "merely accepting the petitions would not have by itself
automatically effected a modification," because the County and other unions could challenge
the petitions and protect their interests pursuant to an appropriateness hearing under
ERR
Section 10.7. RSA also contends that the County's past practice has been that a hearing, when
held, is before a neutral arbitrator rather than the Board
of
Supervisors, pointing to Prescott's
testimony regarding the 2004 modification petition brought by the HRD.
ISSUE
Did the County unreasonably apply ERR Section 10.1 to deny RSA' s modification
petitions?
CON
CT
,USIONS OF LAW
The MMBA itself does not contain any requirements for representation petitions;
rather, as cited above, public agencies are authorized to adopt their own rules. 	However, the
rules must be reasonable. In International Brotherhood
of
Electric Workers
v.
City
of
Gridley
(1983) 34 Cal.3d 191, the California Supreme Court analyzed the legislative intent:
It is now well settled that the Legislature intended that the
MMBA "set forth reasonable, proper and necessary
principles which public agencies must follow in their rules
and regulations for administering their employer-employee
relations
...
" and that
"if
the rules and regulations
of
a
public agency do not meet the standard established by the
Legislature, the deficiencies of those rules and regulations
as to rights, duties and obligations of the employer, the
employees, and the employee organization, are supplied
by the appropriate provisions of the act."
(Citations omitted.)
6

PERB followed this reasoning in County
of
Imperial (2007) PERB Decision No.
1916-M, where it struck down a section
of
the County's Employer-Employee Relations Policy
which required that a union seeking recognition must receive votes from a majority
of
eligible
employees rather than a majority
of
votes cast, as provided in MMBA section 3507.l(a)2:
The MMBA allows a considerable degree
of
local regulation, but
where it sets a standard, local divergence is not allowed
....
Thus, when looking at a disputed rule, the inquiry does not
concern whether PERB would find a different rule more
reasonable. Rather, the question is whether a disputed rule is
consistent with and effectuates the purposes
of
the express
provisions
of
the MMBA.
...
[T]he standards established by the
MMBA "may not be undercut by contradictory rules or
procedures that would frustrate its purpose."
(County
of
Imperial, supra, PERB Decision No. 1916-M; citations omitted.)
Here, ERR section 10.1 requires that any modification petition be "accompanied by
proof
that its represented members comprise
15
percent
of
the employees in the unit." What
does this mean? The language is woefully
ambiguous-it
makes no reference to a percentage
of
employee support for the petition, but instead refers to the percentage
of
employees
represented by the petitioner. 	Where language is silent or ambiguous, the meaning may be
ascertained by examining extrinsic evidence including past practice, bargaining history, or the
parties' mutual understanding. (City
of
Riverside (2009) PERB Decision No. 2027-M; San
Diego Unified School District (2007) PERB Decision No. 1883-E.) Here, the parties each
expressed their understanding that some
15
percent showing
of
interest is required.
Accordingly, I accept this evidence and find that "15 percent" refers to a showing
of
interest.
Section 3507.l(a) states: "Unit determinations and representation elections shall be
determined and processed in accordance with rules adopted by a public agency in accordance
with this chapter. In a representation election, a majority of the votes cast by the employees in
the appropriate bargaining unit shall be required."
7

But the language is also ambiguous as to which group
of
employees must provide this
showing
of support-the
petitioner's already-existing unit, the classifications sought to
be
added to the unit, and/or the entire unit from which the new classifications are sought to be
removed. 	Here, the parties vigorously disagree: the County urges that
15
percent support must
come from the donor as well as the recipient unit(s); RSA argues that support is only required
from the recipient unit and from those classifications proposed to be added.
In People ex rel. Lungren
v.
Superior Court (1996) 14 Cal.4th 294, 305, the court stated
the following axiom:
Where the language
of
a statutory provision is susceptible
of
two
constructions, one
of
which, in application, will render it
reasonable, fair and harmonious with its manifest purpose, and
another which would be productive
of
absurd consequences, the
former construction will be adopted.
The court has applied this principle to the interpretation
of
a collective bargaining agreement in
National City Police Officers' Assn.
v.
City
of
National City (2001) 87 Cai.App.4th 1274.
I find it appropriate to apply this principle as well to the ERR, which was arrived at
after consultation with the County's unions, including RSA, and is therefore sufficiently
similar to an MOU. In doing to, I find that RSA's interpretation is reasonable, while the
County's is not.
When a group
of
employees want to leave their current unit and be represented either in
a different unit or by a different union, the usual process is by way
of
severance, where PERB
has required a majority showing only from the employees in the petitioned-for unit. (State
of
California (2007) PERB Order No. A367-S.) As regards the MMBA, PERB Regulation
8

section 61400,3 which addresses severance petitions, does not require any showing
of
interest.
Under the ERR, however, what would otherwise be considered a severance request is treated as
a unit modification request. In Salinas Union High School District (2002) PERB Order No.
A3
l 5-E, PERB certified a modified unit with a showing
of
support only from the employees to
be added to the unit. PERB Regulations
do
not require any showing
of
support for
modification petitions, except that
if
the proposed addition would increase the existing unit by
10
percent or more, section 61450(e)(l) requires a majority showing among the employees to
be added; and
if
the employees to be added are also sought in another union's petition for
initial recognition or certification, section 61450(e)(2) requires a 30 percent showing among
the employees to be added. Here, employees in the classifications sought to be added to RSA's
unit (or severed from the LIUNA and SEIU units) have shown overwhelming support for the
petition. In addition, the County has assumed that RSA has majority support from its already
established recipient units.
The County contends that RSA must also show support from at least
15
percent
of
employees in the LIUNA and SEIU units. 	However, it is virtually impossible for a petitioner
to garner support from employees represented by another union (other than those it seeks to
add) whom they have no interest in and who have no interest in them. Thus, taking the
County's position in the most favorable light, no severance-type modification petition could
ever be processed unless the petitioner seeks to add at least
15
percent
of
the donor's unit to its
own. 	I cannot read section
10
.1
to require this, nor has the County suggested such a reading.
3 MMBA section 3509(a) gives PERB the power to "adopt rules to apply in areas
where a public agency has no rule." Thus, PERB Regulations section 61000 et seq. contain
requirements for recognition petitions in the absence of local rules.
9

The County argues that
if
RSA's position were upheld, it would allow unions to raid
each other often, in small increments, which would disturb labor relations. However,
ERR
section 10.5-10.7 requires that,
if
the HRD or another union objects to the petition and it is not
modified, a hearing be held on the appropriateness
of
the unit. Thus,
if
it is found after such a
hearing that the sought-after employees appropriately belong in the new unit rather than the
old, labor relations will be improved, as future bargaining would take place in more
appropriate units. The County recognizes this in ERR section
10
.1, which allows the HRD to
propose a modification with no restriction regarding the number
of
employees involved and
with no showing
of
support required. Further, MMBA section 3502, which guarantees to
employees "the right to form, join, and participate in the activities
of
employee organizations
of
their own choosing," would be better served, as it would give the sought-after employees
their choice
of
representative. LIUNA argues that
if
a "significant minority"
of
employees
wish to move, their section 3502 rights are protected under the County's interpretation.
However, section 3502 is not restricted to any "significant" number, but applies to each
individual employee. Nor can I find that section 3 502 gives to employees, or to unions, the
right to retain employees who do not wish to be retained.
Accordingly, I find that the County's interpretation
of
ERR section 10.1 to require,
inter alia, a
15
percent showing
of
support from the donor unit(s), is unreasonable; and that its
application
of
that interpretation to deny RSA' s unit modification petitions was unlawful.
The County argues that its past practice has been to deny modification petitions without
a
15
percent showing. RSA argues that this evidence should not be accepted. However, even
if accepted, there is no evidence that RSA concurred in these decisions. Further, these denials
were also unreasonable, as they were also based on a lack of support from the donor units.

REMEDY
MMBA section 3509(b) states in part:
A complaint alleging any violation
of
this chapter or
of
any rules
and regulations adopted by a public agency
...
shall be processed
as an unfair practice charge by the board. The initial determination as to
whether the charge
of
unfair practice is justified and,
if
so, the
appropriate remedy necessary to effectuate the purposes
of
this
chapter, shall be a matter within the exclusive jurisdiction
of
the
board.
Having found that the County violated the MMBA by refusing to process RSA's unit
modification petitions, it is appropriate that the County cease and desist from such unlawful
conduct. It is also appropriate that the County be ordered to process RSA's petitions pursuant
to the procedures set forth in ERR section
10.
It is also appropriate to require the County to post a notice incorporating the terms
of
the order. It effectuates the purposes
of
the MMBA that employees be informed by a notice,
signed by an authorized agent, that the respondent has acted unlawfully, is being required to
cease and desist from its unlawful activity, and will comply with the order. (County
of
Riverside (2003) PERB Decision No. 1577-M.)
RSA urges that,
if
a hearing is required to determine the appropriateness of the
requested units, an order issue that the hearing be held before a neutral arbitrator rather than
the Board
of
Supervisors. RSA relies on how the HRD's 2004 modification proposal was
handled. However, according to Prescott's uncontradicted testimony, it was the Board
of
Supervisors who appointed a hearing officer, and there is no evidence that any other party
participated in the hearing officer's selection or verified his neutrality. This single occasion,
under these circumstances, does not warrant an order contradicting ERR section 10. 7, that
if
a
hearing is required, it be held before the County's Board of Supervisors.
11

PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the County
of
Riverside (County) violated the Meyers-Milias-Brown Act
(MMBA or Act), Government Code section 3509(b), 3503 and 3506, and PERB Regulation
section 32603. The County violated the MMBA by unreasonably applying its Employee
Relations Resolution (ERR) to refuse to process two petitions filed by Riverside Sheriffs'
Association (RSA). By the same conduct, the County also violated the MMBA by denying to
RSA the right to represent its members, and by interfering with the rights
of
its employees to
be represented by the employee organization
of
their choice.
Pursuant to section 3509(b)
of
the Government Code, it hereby is ORDERED that the
County, its governing board and its representatives shall:
A.	
CEASE AND DESIST FROM:
1.	
Denying unit modification petitions brought by recognized employee
organizations because they are not accompanied by proof
of
support from
15
percent
of
the
employees in the donor unit(s);
2.	
Denying RSA's unit modification petitions dated August 26, 2006, and
August 29, 2007;
3. 	Denying RSA its right to represent its members in their employment
relations with the County;
4. 	Interfering with employees' exercise of their rights under the MMBA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
12

1.	
Within ten (10) workdays
of
the service
of
a final decision in this matter,
commence processing RSA' s above-cited modification petitions pursuant to the procedures in
ERR section 10.
2.	
Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to County employees customarily are posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the County, indicating that it will comply with the terms
of
this Order. Such posting shall
be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall
be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
3. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on RSA.
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 	124
(916) 322-8231
FAX: (916) 327-7960
13

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
PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number
of
copies and proof
of
service,
in the
U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130.)
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).)
14
Ann L. Weinman
Administrative Law Judge
14