County of Riverside (PERB 2280M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party, Case No. LA-CE-605-M
v. PERB Decision No. 2280-M
COUNTY OF RIVERSIDE, August 14, 2012
Respondent.

Appearances: Weinberg, Roger & Rosenfeld by Alan G. Crowley, Attorney, for Service
Employees International Union, Local 721; The Zappia Law Firm by Edward P. Zappia and
Brett M. Ehman, Attorneys, for County of Riverside.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County of Riverside (County) to the proposed
decision (attached) of an administrative law judge (ALJ). The ALJ ruled that the County
violated the Meyers-Milias-Brown Act (MMBA)’ when it denied a unit modification petition
submitted by Service Employees International Union, Local 721 (SEIU) on the ground that the
petition was not supported by a majority of employees covered by the petition.

The ALJ determined that the unit modification rule in the County’s Employee Relations
Resolution (ERR) did not require proof of majority support, and that by imposing a majority

support requirement the County unreasonably applied its rule and thereby violated MMBA

section 3506. The ALJ also determined that the County’s conduct constituted an unfair

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

practice under MMBA section 3509(b) and PERB Regulation 32603(a) and (g).2 The ALJ
proposed an order requiring the County to rescind the denial
of
SEIU' s petition and to process
the petition with a reasonable interpretation
of
the ERR consistent with the proposed order.
The County excepts to the ALJ' s reading
of
the County's ERR and the unit
modification rules therein.3 The proposed order would, asserts the County, include employees
covered by SEIU' s petition in bargaining units represented by SEIU without affording the
employees an opportunity to approve such inclusion. The County asserts that this violates
MMBA and additionally constitutes "forced unionism" which, contends the County,
contravenes the employees' constitutional due process rights.4
We have reviewed the hearing record, the proposed decision, the County's exceptions
and SEIU' s response. The ALJ' s findings
of
fact are adequately supported by the record, and
we adopt them as the findings
of
the Board itself. 5 The ALJ' s concl us ions are well reasoned
PERB regulations are codified at California Code
of
Regulations, title 8,
section 3100 I et seq.
3 The County requests oral argument pursuant to PERB Regulation 32315. 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; City
of
Modesto (2008) PERB Decision No. 1994-M.) Based on our review
of
the
record, all
of
the above criteria are met in this case. Therefore, the Board denies the request.
4 The County relies for its due process claims on Mariscal
v.
Employee Relations Board
of
City
of
Los Angeles (2010) 187 Cal.App.4
th
164 (Mariscal) (merger
of
union locals did not
present "question
of
representation" for labor board determination; internal statewide
discussion and vote by union members on merger was consistent with state statutes; local-by-
local vote not required).
5 The County's exceptions all designate portions of the proposed decision falling within
the conclusions of law, and no exception is taken to portions of the proposed decision falling
within the findings of fact. 	An exception not specifically urged is waived. PERB
Regulation 32300(c).
2

and in accordance with applicable law, and we affirm them subject to our discussion below
of
the County's exceptions.
FACTUAL BACKGROUND
The County employs persons within a so-called Temporary Assignment Program
(TAP). 	Such persons, designated TAP assistants, are assigned to fill vacancies in County
positions across the scope
of
County operations. TAP positions are not permanent civil service
positions. (Proposed Dec., at p. 4.)
The County has adopted local rules pursuant to MMBA section 3507, known as the
County's ERR. These rules govern, inter alia, formation and modification
of
bargaining units
and recognition
of
exclusive and/or recognized bargaining representatives. SEIU represents
employees in a professional unit, a para-professional unit and a registered nurses unit. TAP
assistants are not included in any
of
the County's bargaining units. (Proposed Dec.,
at pp. 4-5.)
The County's ERR section 10 provides for modification
of
bargaining units. (See
Discussion in Proposed Dec., at p. 5.)
In September 2009, SEIU petitioned to accrete into each
of
its three bargaining units
those TAP assistant employees whose assignments, working titles, or duties are the same, or
close to, those performed by the regular full-time or part-time employees in each unit. 	SEIU
did not provide proof
of
support that the petitioned-for 	assistant employees desired SEIU
representation or inclusion in a SEIU bargaining unit. (Proposed Dec., at p. 5.)
In October 2009, the County denied SEIU's petition, stating that the County required a
showing
of
majority support before it would act to "affect the representation rights
of
unrepresented employees." The County stated that it took no position as to the appropriateness
of the proposed unit modifications, but was denying the petition on the threshold basis that
3

SEIU failed to "demonstrate majority (actually any) support from the affected TAP workers."
(Proposed Dec., at p. 6)
In March 2010, SEIU brought its unfair practice charge seeking an order compelling the
County to process its petition. PERB 's Office of General Counsel thereafter issued a
complaint alleging a violation of County ERR section 10 and of MMBA sections 3506 and
3509(b) and PERB Regulation 32603(a) and (g). (Proposed Dec., at pp. 1-2.)
PRIOR LITIGATION
We begin with a previous PERB decision involving these parties raising the same issue
treated here. 	In County of Riverside (2011) PERB Decision No. 2163 (Riverside I), the Board
considered the County's interpretation of its ERR rules regarding unit modification under
which the County imputed a majority support requirement for petitions seeking to add
unrepresented positions to an existing bargaining unit. The Board held that the imputed
majority support requirement constituted an unreasonabie reading of the unit modification
rules, and directed the County to process SEIU petitions in accordance with a reasonable
interpretation of these rules. The County sought judicial review of the Board's decision in
Riverside I, which review was pending at the time the ALJ issued the proposed decision in the
instant case. Thus, the ALJ appropriately declined to consider the Board's Riverside I ruling as
binding PERB precedent.
On April 11, 2012, the Court of Appeal for 	4 th Appellate District, Division
issued its order 	Case No. E053161, denying review of the Board's decision in Riverside I.
Thus, 	Board's Riverside I decision is now 	and may serve as precedent guiding our
deliberations in the instant case.
4

THE PROPOSED DECISION
The ALJ concluded that: (1) ERR section 10 applies to the unit modification requests
at issue (Proposed Dec., at p. 7); (2) the County's decision to deny SEIU's petition was
inconsistent with the plain language
of
ERR section
10
(Proposed Dec., at p. 8);
(3) ERR section
10
is the operative rule for modifying County bargaining units (Proposed
Dec., at pp. 8-9); (4) ERR section 10 does not require a petitioning employee organization to
provide employee support for a unit modification (Proposed Dec., at p. 1
O);
and
(5) alternatively, assuming ERR section 10 does not apply, when rejecting SEIU's petition the
County relied on an unwritten policy requiring majority support, which policy was adopted
without meeting and conferring as required by MMBA and thus exceeded the County's
authority (Proposed Dec., at p. 11).
THE COUNTY'S EXCEPTIONS
The County excepts to each
of
the principal legal conclusions reached by the ALJ,
raising as to each exception essentially the same contentions, which are:
1.	
Section 10
of
the ERR does not apply to a petition for unit modification seeking to
accrete unrepresented employees, and the County requires a majority showing
of
interest
before processing a petition to unionize unrepresented employees;
2. Processing SEIU's petition would force unrepresented employees to join a union
without their consent or vote, violating MMBA section 3502 and 	Regulation 32604(a);
3. Due process requirements
of
the Fourteenth Amendment prohibit accretion
of
"""'"''H"'"'"' employees because the employees have no opportunity to contest joining a
union or to object to paying union dues;
5

4. 	California case law, Mariscal, requires that prior to accretion to a bargaining unit
represented by a union, current, unrepresented employees must be afforded the opportunity to
consider, discuss and approve their inclusion; and
5.	
Requiring the County to process SEIU' s unit modification petition absent proof
of
majority support among the covered employees will violate PERB Regulation 32604(a), which
precludes a union to "cause or attempt to cause a public agency to engage in conduct
prohibited by the MMBA or by any local rule adopted pursuant to Government Code
section 3507."
DISCUSSION
We begin with Riverside
I.	
The Board there considered and decided the principal issue
here presented, namely, the County's insistence on proof
of
majority support for a unit
modification petition seeking to add to an existing bargaining unit various current and
unrepresented employees. The County then urged, and the Board then considered and ruled
on, many
of
the same contentions the County urges here.
In Riverside
I,
the Board wrote:
The County denied SEIU' s petitions because they were not
accompanied by proof that a majority
of
the employees to be
added to the units desired to be represented by SEl U. In the
proposed decision, the ALJ concluded that it was unreasonable
for the County to impose a majority support requirement on
SEIU' s petitions.
In its exceptions, the County acknowledges that its ERR is silent
regarding proof
of
support for a unit modification petition but
nonetheless argues that it is necessary to imply a majority support
requirement into Section 10 to prevent unrepresented employees
from being "involuntarily unionized against their will." Such a
requirement, however, is contrary to well-established law
governing the addition of employees to an existing bargaining
unit, which requires a showing of majority support among the
employees to be added to the unit only under certain
circumstances.
6

The National Labor Relations Board (NLRB) does not require a
showing of majority support "when the employees sought to be
added to an existing bargaining unit have little or no separate
identity and share an overwhelming community of interest with
the preexisting unit to which they are accreted." (E.J Du Pont de
Nemours, Inc. (2004) 341 NLRB 607, 608.) It only requires such
a showing when the employees to be added historically have been
excluded from the unit, typically (but not necessarily) by
agreement between the union and the employer. (Teamsters
National United Parcel Service Negotiating Committee v.
National Labor Relations Bd. (D.C. Cir. 1994) 17 F.3d 1518,
1522; Laconia Shoe Co. (1974) 215 NLRB 573, 576.)
PERB does not follow the NLRB's approach to accretion.
Instead, PERB regulations require a showing of majority support
when adding the requested employees "would increase the size of
the established unit by ten percent or more." (PERB
Regs. 32781(e)(l); 61450(e)(l); 81450(e)(l); 91450(e)(l).)
[Fn. 3 omitted.] If the addition would not increase unit size by
ten percent or more, no showing of majority support is required.
(Regents of the University of California (2010) PERB Decision
No. 2107-H.)
As these authorities demonstrate, a showing of majority support
is not required every time a union seeks to add employees to an
existing bargaining unit. Nor do the authorities apply different
rules when a unit modification petition seeks to add
unrepresented employees to a unit. Accordingly, we reject the
County's argument that a m~ority support requirement must be
impiied in ERR Section 10.[]
In the alternative, the County contends that PERB Regulation
61450(e)(l) should apply in light of Section l0's silence
regarding majority support. Pursuant to MMBA section 3509,
subdivision (a), "PERB regulations serve to 'fill in the gap' when
a local agency has not adopted a local rule on a particular
[Fn. 4: We also note that 	has consistently held that 	employees have
right to choose which employee organization, if any, they want to represent them, they have no
right to choose the bargaining unit in which their classification or position is placed." (Regents
of the University of California, supra; Elk Grove Unified School District (2004) PERB
Decision No. 1688; Salinas Union High School District (2002) PERB Order No. Ad-315.)]
7

representation issue."[7] (County
of
Siskiyou/Siskiyou County
Superior Court (2010) PERB Decision No. 2113-M.) Under this
standard, PERB regulations apply only when the agency has no
rule at all that governs a representation issue. 	(County
of
Orange
(2010) PERB Decision No. 2138-M; County
of
Siskiyou/Siskiyou
County Superior Court, supra.) Here, the County has adopted a
local rule governing unit modification and, therefore, PERB' s
unit modification regulations
do
not apply.
MMBA section 3507, subdivision (a) gives the County the ability
to directly address its concern that ERR Section
10
allows
unrepresented employees to be added to a bargaining unit without
any showing
of
support: "after consultation in good faith with
representatives
of
a recognized employee organization or
organizations," the County can amend its unit modification rule
to include a reasonable employee support requirement. The
County may not ignore the Legislature's directive by adding
requirements to the rule without participating in the statutorily
required consultation. Nor has the Legislature granted PERB the
authority to use its regulations to rewrite a local agency's rules,
even
if
the agency urges PERB to do so. Thus, unless and until a
proper amendment
of
its unit modification rule occurs, the
County may not lawfully require a showing
of
majority support to
add employees to an existing bargaining unit. 	[Fn. 6 omitted.]
(Riverside
I,
at pp. 2-5.)
We return to the County's exceptions. Our decision in Riverside I treated several
of
the
contentions raised again here. They are as numbered above, 1 and
2.
	Accordingly, we deem it
unnecessary to revisit these contentions and their disposition in Riverside
I.	
We therefore
address here exceptions 3, 4 and
5.
	We take them in order.
Exception
3:
	Due process requirements
of
the Fourteenth Amendment prohibit the
County from accreting unrepresented employees into an existing bargaining unit, because the
employees have no opportunity to contest joining a union or to object to paying union dues.
disagree.
7 [Fn.5: MMBA section 3509, subdivision (a) states, in relevant part: "Included among
the appropriate powers of the board are the power to order elections, to conduct any election
the board orders, and to adopt rules to apply in areas where a public agency has no rule."]
8

MMBA section 3502 protects the right
of
employees individually to join or not to
join
an employee organization or union. Neither represented nor unrepresented employees have
standing to contest placement
of
their position or job classification in a particular bargaining
unit. (Regents
of
the University
of
California (2010) PERB Decision No. 2107-H; Elk Grove
Unified School District (2004) PERB Decision No. 1688; Salinas Union High School District
(2002) PERB Order No. Ad-315.) Requiring that the County process SEIU's unit modification
petition does not interfere with or coerce employees in violation
of
MMBA section 3502.
Likewise, neither MMBA section 3502 nor the Fourteenth Amendment is offended by a
system
of
service or agency fees. 	The union chosen by a majority
of
unit employees as the
exclusive representative
of
the employees in the bargaining unit, may implement a service or
agency fee system requiring all unit employees either to
join
the union or in lieu
of
joining to
pay the union a service or agency fee. 	(Abood
v.
Detroit Bd.
of
Educ. (1977) 431 U.S.
209, 221-222; Cumero
v.
Public Employment Relations Bd. (1989) 49 Cal. 3d 575, 588-589.)
Due process protections required as a condition to implementing a service or agency fee are
sufficient to protect employees' interests under the Fourteenth Amendment. (Chicago
Teachers Union
v.
Hudson (1986) 475 U.S. 292.)
Exception
4.
	The County contends that California case law, Mariscal, requires that
prior to accretion to a bargaining unit represented by a union, current, unrepresented
employees must be afforded the opportunity to consider, discuss and approve 	inclusion.
¥/
e disagree.
Mariscal stands for a different proposition. In Mariscal an international union merged
several of its locals into a single local. One of the predecessor locals was Local 34 7.
Dan Mariscal was a member of Local 347. Following the merger, the successor local
[Local 721] petitioned the labor board (Employee Relations Board for the City of Los Angeles
9

or ERB) for amendment of Local 347's certification to reflect its new identity. Dan Mariscal
opposed the amendment arguing that members of Local 34 7 were entitled to a separate vote to
determine whether Local 34 7 would merge with the other locals into a single local. ERB held
a hearing, and thereafter ruled that the successor local' s petition for amendment of certification
should be granted. ERB ruled there was no substantial change in the identity of the union, but
rather there was a "continuity of representation." Thus, there was no question concerning
representation (QCR) requiring a separate vote of Local 347's bargaining unit members. 	ERB
ruled as well that the union's internal procedures for making the merger decision met "due
process" standards for member involvement in the union's merger decision, viz., union
members were given notice of the proposed merger, had an opportunity to comment thereon,
and to participate in a statewide election approving it. Dan Mariscal appealed.
The appellate court affirmed. (Mariscal, at pp. 169-174.) The court ruled that
substantial evidence supported the ERB' s determination that the merger presented merely a
continuity of representation and not a QCR, and that the union had provided for appropriate
member involvement in the decision via the statewide vote preceded by adequate notice and
discussion. The court likewise ruled that ERB had reiied appropriately on state and federal
case law governing union mergers, including without limitation, NLRB v. Financial Inst.
Employees (1986) 475 U.S. 192.
The County's reliance on Mariscal is misplaced. Mariscal concerns a merger of union
locals, and the rights of union members to participate in internal union decision making about
the merger. It does not establish rights for unrepresented employees when their employer
receives a petition to modify a bargaining unit by including the employees in that bargaining
unit.

Under the MMBA, decisions about unit modification are made by a public agency
under the agency's reasonable rules which are subject to meeting and conferring with
employee organizations, or in the absence of an applicable local agency rule, by rules
established by PERB. At the time of the petition in this case, the County had a unit
modification rule, thus PERB' s rules were not applicable. The County's unit modification rule
did not require proof of majority support when modifying an existing unit by accretion of
unrepresented employees. We conclude that the ALJ reasonably determined to apply the
County's rule, and reasonably interpreted the County's rule to prohibit the County from
requiring proof of majority support.
Exception 5. Requiring the County to process SEIU's unit modification petition
absent proof of majority support among the covered employees will violate PERB
Regulation 32604(a), which precludes a union to "cause or attempt to cause a public agency to
engage in conduct prohibited by the MMBA or by any local rule adopted pursuant to
Government Code section 3507." We disagree.
We have already concluded that the County has its own unit modification rule, and that
the County's rule does not require proof of majority support under any circumstance. Thus,
neither PERB nor the County has authority to apply PERB' s unit modification rules, and the
County must process SEIU' s petition under the County's existing rule.
We likewise have concluded that the County's rule, as construed by the 	1s
reasonable and despite the County's contrary claims, may be implemented without violating
employee rights under MMBA section 3502. 	by seeking to enforce implementation of
the County's unit modification rule, SEIU does not seek to cause or attempt to cause the
County to engage in conduct prohibited by the MMBA or by the County's own local
such, neither SEIU nor PERB is violating PERB Regulation 32604(a).
11

CONCLUSION
For all these reasons, we conclude, with the ALJ, that by refusing to process
SEIU's
unit modification petition absent proof
of
majority support among the employees subject to the
petition, the County acted inconsistently with its own ERR section
10
and that its conduct
violates MMBA section 3506 and constitutes an unfair practice under MMBA section 3509(b)
and PERB Regulation 32603(a) and (g).
ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law, and the entire record
in this case, it is found that the County
of
Riverside (County) violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3506 and 3509(b) by unreasonably and
unlawfully denying a petition submitted by Service Employees International Union, Local 721
(SEIU) on September
1,
2009, seeking to add certain Temporary Assignment Program
employees to SEIU' s existing represented bargaining units. This conduct also violated
the
MMBA by denying SEIU' s right to represent its members and interfering with the rights
of
County employees.
Pursuant to MMBA section 3509(b), it is hereby ORDERED that the County, its
governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Applying the rules
of
	County's Employee Relations Resolution
(ERR) regarding unit modification unreasonably to require proof
of
majority support for
SEIU's 	1,2009 	modification
2. 	Denying SEIU the right to represent County employees.
3. 	Interfering with the right of County employees to be represented by the
employee organization of their choosing.
12

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF MMBA:
l. 	Rescind the October 30, 2009 denial of SEIU's September 1, 2009 unit
modification petition.
2. 	Within ten (i 0) workdays of the service of a final decision in this matter,
process SEIU' s September 1, 2009 unit modification petition with a reasonable interpretation
of the County's ERR that is consistent with this Order.
3. 	Within ten (10) workdays of the service of a finai decision in this matter,
post at all work locations where notices to employees in the County 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.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, 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 SEIU.
Chair Martinez and Member Dowdin Calvillo joined in this Decision.
13

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 No. LA-CE-605-M, Service Employees
International Union, Local 721 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 denying Service
Employees International Union, Local 721 's (SEIU) September 1, 2009 unit modification
petition.
As a result of this conduct, we have been ordered to post this Notice and we wili:
A. 	CEASE AND DESIST FROM:
1. 	Applying the rules of the County's Employee Relations Resolution
(ERR) regarding unit modification unreasonably to require proof of majority support for
SEIU' s September 1, 2009 unit modification petition.
2. 	Denying SEIU the right to represent County employees.
3. 	Interfering with the right of County employees to be represented by the
employee organization of their choosing.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF MMBA:
1. 	Rescind the October 30, 2009 denial of SEIU' s September 1, 2009 unit
modification petition.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
process SEIU' s September 1, 2009 unit modification petition with a reasonable interpretation
of the County's ERR that is consistent with this Order.
Dated: 	COUNTY OF RIVERSIDE
By:--------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR 	LEAST
(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
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-605-M
PROPOSED DECISION
(August
5,
2011)
Appearances: 	Weinberg, Roger & Rosenfeld by Alan
G.
Crowley, Attorney, for Service
Employees International Union, Local 721; The Zappia Law Firm by Edward
P.
Zappia and
Day
B.
Hadaegh, Attorneys, for County
of
Riverside.
Before Eric
J.
Cu, Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a public employer's decision to deny an employee organization's
petition to add unrepresented positions to existing bargaining units pursuant to its local
employer-employee relations rules was unlawful. The public employer disputes that its denial
violates either the local rules or the Meyers-Milias-Brown Act (MMBA). 1
On March 26, 2010, Service Employees International Union, Local 721 (Local 721)
filed an unfair practice charge with the Public Employment Relations Board (PERB or Board)
against the County
of
Riverside (County) alleging a violation
of
sections 8 and 10
of
the
County's Employee Relations Resolution (ERR) and, as a consequence, the MMBA.
On June 21, 2010, Local 721 withdrew its allegation that the County violated ERR
8. On the same date, the 	Office of 	General Counsel 	a complaint,
alleging a violation of ERR section 10. The complaint further alleges that the same conduct
1 The MMBA is codified at Government Code section 3500 et sequentes.

violates MMBA sections 3506 and 3509(b) and PERB Regulation 32603(a) and (g). 2
On
July 21, 2010, the County answered the complaint denying that any violation occurred.
On July 29, 2010, the parties participated in an informal settlement conference but the
matter was not resolved. At that point, the matter was scheduled for formal hearing by
Administrative Law Judge Thomas Allen to be held on November 8-10, 2010.
On November
8,
2010, the parties stipulated to a set
of
45
joint exhibits and further
stipulated no other evidence was necessary to decide the case. On February 11, 2011,
Local
721
filed its post-hearing brief. The County filed its post-hearing brief on February 18,
2011.
On February 25, 2011, Local
721
filed a request for judicial notice regarding PERB
decision County
of
Riverside (2011) PERB Decision No. 2163-M. The County does not
oppose the request. 	The County did, however, file a petition for writ
of
extraordinary relief
with the California Court
of
Appeal, Fourth Appellate District seeking review
of
that decision.
The County's petition
is
under consideration by the court.
On April 18, 2011, the instant case was transferred to then-Acting Chief Administrative
Law Judge Christine A Bologna. Bologna issued an Order to Show Cause (OSC) as to why
the present matter should not be held in abeyance pending decision from the appellate court
concerning County
of
Riverside, supra, PERB Decision No. 2163-M and another case
involving the same parties, County
o_f
Riverside (2010) 	Decision No. 2119-M. 	the
time Bologna issued the OSC, Decision No. 2119-M was being considered for review by the
appellate court.
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et sequentes.
2

On May 9, 2011, Local 721 filed a response to the OSC. The County filed its response
on May 12, 2011. Both parties opposed placing the case in abeyance for different reasons. At
that point, the record was closed and the case was submitted for decision. On July 12, 2011,
the case was transferred to the undersigned.
LOCAL 721 'S REQUEST FOR ADMINISTRATIVE NOTICE
Local 721 requests that PERB take administrative notice of County of Riverside, supra,
PERB Decision No. 2163-M. 	PERB has previously found it appropriate for administrative
agencies, like PERB, to take notice of their own records. 	(Regents of the University of
Cal~fornia (1999) PERB Decision No. 1359-H, citing El Monte Union High School District
(1980) PERB Decision No. 142.) In this case, Local 721 's request is not opposed by the
County. Thus, to the extent that administrative notice is required of the Board's decision in
County of Riverside, supra, PERB Decision No. 2163-M, Local 721 's request is granted.
However, because the decision is currently being considered for review by the appellate court,
it cannot be accorded precedential value.
RULING ON ORDER TO SHOW CAUSE
On April 18, 2011, PERB issued an OSC inquiring whether the case should be placed
in abeyance pending further action by the appellate court in County of Riverside, supra, PERB
Decision No. 2119-M and County of Riverside, supra, PERB Decision No. 2163-M. The
County's petition for review of Decision No. 2119-M was denied by the appellate court and
accordingly provides no basis for an abeyance.
PERB has previously held unfair practice charge cases in abeyance 	related
litigation was pending with the consent of the parties. (State of California (Department of
Personnel Administration) (2008) PERB Decision No. 1978-S.) In this case, both parties
oppose placing the case in abeyance. 	In addition, the present case arises under a different set
3

of facts from County a/Riverside, supra, PERB Decision No. 2163-M. Accordingly, I decline
to hold this case in abeyance and will proceed with issuing a proposed decision.
FINDINGS OF FACT
I. 	Jurisdiction Over the Parties
The County is a public agency within the meaning of MMBA section 3501 (c) and
PERB Regulation 32016(a). Local 721 is an exclusive representative within the meaning of
PERB Regulation 320 l 6(b) and represents the Professional, Para-Professional, and the
Registered Nurses bargaining units in the County.3
II. 	The Temporary Assignment Program
The County operates a Temporary Assignment Program (TAP) which allows the
County to fill vacant County positions on a temporary basis. TAP employees may fill any
number of vacancies at the County including, but not limited to, office assistants, planning
technicians, grounds workers, pharmacists, and licensed vocational nurses. Unlike other
positions at the County, TAP positions are not considered to be permanent civil service
positions. Although TAP employees may receive differing job assignments, all TAP
employees are in a single job classification, the TAP Assistant.
III. 	The County's ERR and Existing Bargaining Units
The County has adopted local rules pursuant to MMBA section 3507 regarding the
formation of bargaining units, recognition of recognized and/or exclusive bargaining
representatives, and the modification of bargaining units. That set of local rules is known as
the County's ERR.
The County states in its answer that it "denies that Charging Party is an exclusive
representative of any 'appropriate unit' for purposes of this charge." However, the stipulated
record shows that Local 721 is the representative of four units, including the three at issue in
the September 1, 2009 petition. All these units are listed in the County's ERR as existing
appropriate bargaining units.
4

ERR section 7 specifies different criteria for establishing an appropriate bargaining
unit. ERR section 8 lists
11
existing bargaining units at the County, including a Professional
Unit, a Para-Professional Unit, and a Registered Nurses Unit. The TAP Assistant position is
not included in any
of
the County's bargaining units.
ERR section
10
is entitled "MODIFICATIONS OF UNITS" and states, in relevant part:
1.	
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 Directors may also propose a
modification.
2.	
No such proposal shall be submitted except
between July 1 and September
1,
for immediate determination.
The other portions
of
ERR section
10
provide a process for notifying other employee
organizations affected by a petition, for affected employee organizations to challenge a
petition, and for resolving challenges and other unit determination issues raised by a petition.
No other section
of
the ERR allows employee organizations to petition to modify existing
bargaining units. In addition, there are no other local rules concerning unit modification or any
other representation issues included in the stipulated record.
IV. 	Local 721's September
1,
2009 Unit Modification Petition
On September
1,
2009, Local 721 filed a unit modification petition with the County
pursuant to 	section 10. Local
721
's petition requested to "accrete into three
of
its
existing bargaining units those TAP employees whose assignments, working titles, or duties
are the same, or close to, those performed by the regular full time or part time employees
represented by Local 721 in the Professional, Para-Professional, and Registered Nurse units."
It is undisputed that Local 721 did not include any proof that the petitioned-for TAP employees
desired representation by Local 721.
5

On October 30, 2009, the County denied Local
721
's
petition by letter. The County
stated in the letter that "the County has consistently required a showing
of
majority support
before it will proceed with any application to affect the representation rights
of
unrepresented
employees." The County suggested that the three bargaining units at issue lacked a community
of
interest with the petitioned-for TAP positions, but ultimately stated that "it makes no finding
at this time with respect to the appropriateness
of
the proposed modifications." Rather, the
County stated "[t]he County thus denies [Local
721
's] request on the threshold issue that [the
petition] fails to demonstrate majority (actually any) support from the affected TAP workers."
ISSUE
Did the County violate the MMBA by denying Local 721
's
September I, 2009 unit
modification petition on the grounds that the petition did not include proof that a majority
of
the petitioned-for TAP employee supported the petition?
POSITIONS OF THE PARTIES
Local
721
contends that County ERR section
10
applies to unit modification petitions
and that this section does not include a proof
of
support requirement. The County's decision to
require a showing
of
support was therefore inconsistent with the County's own rules
concerning unit modifications.
The County contends that "Section 10
of
the ERR does not apply to a petition for unit
modification
of
unrepresented employees. For unionization
of
unrepresented employees, the
County requires a showing
of
majority consent before processing a petition to unionize
unrepresented employees, as is only fair and 	defense of employees' statutory right to refuse
to participate in union [activity]." (Emphasis in original.)
6

CONCLUSIONS OF LAW
MMBA section 3507 authorizes a public agency to adopt local rules for the
administration of employer-employee relations, including but not limited to, rules regarding
the modification of existing bargaining units. 	(County of Orange (2010) PERB Decision
No. 2138-M; City & County of San Francisco (2009) PERB Decision No. 2041-M.) It is an
unfair labor practice for a public agency to violate a local rule adopted pursuant to MMBA
section 3507. (MMBA, § 3509(b); PERB Reg. 32603(g).) Such conduct also violates MMBA
section 3506. (County of Ventura (2009) PERB Decision No. 2067-M.)
I. 	Applicability of County ERR Section 10
The parties disagree over whether ERR section 10 applies to Local 721 's September 1,
2009 petition. PERB has found that when the language of a statute or local rule is clear and
unambiguous, then the intent of the drafters is reflected in the plain meaning of the written
language. (County of Santa Barbara (2011) PERB Decision No. 2181-M, citing Barstow
Un(fied School District (1996) PERB Decision No. 1138.) The plain language of ERR
section 10 describes the process where "[a] registered employee organization may propose the
modification of an established bargaining 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."4 The ERR makes no distinction between petitions to add
unrepresented positions to existing bargaining units and other types of unit modification
petitions. Therefore, I find that ERR section 10 applies to unit modification requests,
including Local 	l's September 1, 2009 request.
4 The County does not contend that Local 721 failed to satisfy the requirement that
15 percent of the bargaining units at issue are represented members of Local 721.
7

Furthermore, nothing in the plain language
of
ERR section
10
requires an employee
organization proposing any type
of
unit modification to demonstrate that a majority
of
the
employees in the petitioned-for positions support the petition. Accordingly, I find that the
County's October 30, 2009 decision to deny Local
721
's
petition was inconsistent with the
plain language
of
ERR section 10. Such conduct constitutes an unfair practice under
MMBA
section 3509(b) and PERB Regulation 32603(a) and (g).
The County argues that ERR section
10
does not apply in petitions to add unrepresented
positions to existing bargaining units. PERB has previously found that a public agency's local
representation rules are applicable
if
the rules can achieve what the petitioner is seeking
without placing an undue burden on the petitioner. (County
of
Orange, supra, PERB Decision
No. 2138-M.) If, on the other hand, the goal
of
the petition cannot be achieved through the
public agency's local rules, then PERB Regulations apply. (Id., citing County
of
Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No. 2113-M (County
of
Siskiyou); see also PERB Reg. 61000.)
In County
of
Orange, supra, PERB Decision No. 2138-M, the Board held that the
employer's local rules concerning unit modification could be applied to the charging
party's
petition to sever classifications from one unit into a newly formed bargaining unit. In support
of
this conclusion, the Board recognized that the employer's unit modification rules applied
broadly for the purpose
of
reconfiguring bargaining units. Along the same lines, nothing in the
employer's local rules precluded applying the unit modification rules to achieve severance.
(Ibid.)
Applying this holding to the present case, ERR section l O is the operative rule for
modifying the County's bargaining units. This is precisely what Local 721 sought to do with
its September 1, 2009 petition. I find that the goal of Local 721 's petition may be readily
8

achieved through ERR section 10 and that nothing in the ERR precludes using section 10 to
achieve Local 721 's requested modifications. Accordingly, I reject the County's contention
that ERR section 10 did not apply to Local 721 's September 1, 2009 petition.
II. 	Applicability of MMBA Section 3502
The County argues that the majority support requirement is a "well-established labor
relations principle" contained in MMBA section 3502. That section states:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations. Public employees also shall have the right to refuse to
join or participate in the activities of employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
I find nothing in the language of MMBA section 3502, or any other section of the
MMBA for that matter, that requires an employee organization to provide majority support
when petitioning to add unrepresented positions to an existing bargaining unit. The County
does not argue otherwise. 	Instead, the County appears to contend that a majority support
requirement is implicit in employees' right to refrain from joining or participating in the
activities of employee organizations.
The County cites Jasta Manufacturing, Inc. (1979) 246 NLRB 48, Dadco Fashions
(1979) 243 NLRB 1193, and Lincoln Manufacturing, Inc. (1966) 160 NLRB 1866 in support
of its position. All of these cases concern the formation of a new bargaining unit, not the
modification of an existing bargaining unit. For that reason, I find that these cases are
distinguishable. 5 Instead, I find Regents of the University of California (2010) 	Decision
5 It is undisputed that County ERR section 9 requires a showing of majority support to
become the majority representative of a new bargaining unit.
9

No. 2107-H (UC Regents), decided under the Higher Education Employer- Employee
Relations Act (HEERA),6 to be more on point. Similar to MMBA section 3502, HEERA
section 3565 provides higher education employees with "the right to refuse to join employee
organizations or to participate in the activities
of
these organizations[.]" In UC Regents, supra,
PERB Decision No. 2107-H, an employee organization petitioned to add unrepresented
classifications to an existing bargaining unit. Noting first that the PERB regulations
concerning unit modifications under HEERA do not require proof
of
majority support unless
the proposed modification will augment the unit by more than 10 percent, the Board expressly
rejected the notion that there is some kind
of
implicit or discretionary authority under the law
to require proof
of
majority support. (Ibid.)
Similarly in the present case, County ERR section
IO
does not require a petitioning
employee organization to provide employee support for a unit modification petition. As the
Board found in UC Regents, supra, PERB Decision No. 2107-H, statutory language protecting
employees' rights to refuse to join or pariicipate in the activities
of
employee organizations
does not mandate such a proof
of
support requirement. Therefore, the County's argument is
unpersuasive.
Moreover, the central issue in a unit modification petition is the appropriateness
of
the
proposed bargaining unit. ( Orcutt Union Elementary School District (2011) PERB Decision
No. 2183 (Orcutt).) 	Employee preference is not determinative on this issue. (Id., citing
Berkeley Unified School District (2005) PERB Decision No. 1744.)
6 HEERA is codified at Government Code section 3560 et sequentes.
10

III. 	The Requirements
of
MMBA Section 3507
Assuming for the purposes
of
discussion both that ERR section
10
did not apply
and
that the MMBA did require a showing
of
support for unit modification petitions, the
County's
conduct would have nonetheless been unlawful. In the absence
of
a local rule on point, the
County was not entitled to independently create a rule requiring majority support. Rather,
MMBA section 3 507 entitles public agencies like the County to adopt new local representation
rules only after consultation in good faith with the representatives
of
its recognized employee
organizations. There is no evidence in the stipulated record that the County consulted
with
Local
721
or any other employee organization prior to imposing the majority support
reqmrement.
. 	7
In the alternative, the County could have informed Local
721
of
its position that
ERR
section
10
did not apply to the September
1,
2009 petition. At that point, Local
721
would
have had the option to file its petition under PERB Regulation 61450 et sequentes. PERB
Regulations for representation proceedings apply in those cases where the public agency has
not adopted applicable local rules. 	(PERB Reg. 61000.) At that point, PERB, not the County,
would have had jurisdiction to approve or deny Local 721
's petition. (County
of
Orange,
supra, PERB Decision No. 2138-M.) The County did not consult with the appropriate
employee organizations or inform Local 721 that its local rules did not apply. 	Instead, the
County rejected Local 721 's petition based on an unwritten majority support policy. The
County's decision to adopt such a policy exceeds the authority granted to it under MMBA
section 3507.
7 The record does include evidence that the County denied prior unit modification
petitions for lacking proof of support. This is not sufficient to demonstrate that the County
consulted with the required employee organizations prior to adopting this policy.
11

IV. 	The County's Other Defenses
The County also makes several other arguments in its defense. Namely, the County
contends that the instant complaint should be dismissed because the bargaining units
proposed
in
the September 2009 petition are not appropriate units under the County's unit determination
criteria. The County further argues that incorporation
of
TAP positions into the proposed
bargaining units would unlawfully require the County to deduct union dues from TAP employees
and to convert temporary TAP positions into civil service positions. 8 Finally, the County argues
that the employees in the petitioned-for TAP positions lack a "reasonable basis expectation
of
continued employment" and thus are not eligible for inclusion in a bargaining unit. 9 I find it
unnecessary to address these issues because they were not raised in either the PERB complaint or
the County's answer.
To the extent that the County contends that the parties' existing memorandum
of
understanding would automatically apply to the newly added positions, this assumption is
unfounded. The addition
of
new positions to a bargaining unit does not necessarily mean that
previously negotiated terms and conditions
of
employment apply to the new positions.
(Orcutt, supra, PERB Decision No. 2183, citing Palo Alto Unified School District (1983)
PERB Decision No. 352.) Rather, application
of
such terms would be subject to the
negotiations process. (Ibid.)
9 In support
of
this argument, the County cites to San Bernardino City Un(fied School
District (2004) PERB Decision No. 1602 and State
of
California (Departnient
of
Personnel
Administration) (1992) PERB Decision No. 948-S. Both
of
those cases concerned whether
certain individuals were considered "employees" for determining their eligibility to participate
in a representation election concerning an appropriate bargaining unit. In contrast, the present
case concerns Local 721
's
petition to modify existing bargaining units to include
unrepresented TAP positions, is irrespective
of
the employees that currently fill those
positions. The petition sought a determination on unit appropriateness, and the County
declined to address that issue.
In addition, to the extent that the County argues that temporary 	employees lack
representation rights under the MMBA, MMBA grants rights and protections to all public
agency employees, defined as "any person employed by the public agency[.]" (MMBA,
§ 350l(d).) There is no length of employment requirement in this definition.
12

For all these reasons, I find that the County acted inconsistently with ERR section 10 and
that its conduct violates MMBA section 3506 and constitutes an unfair practice under
MMBA
section 3509(b) and PERB Regulation 32603(a) and (g).
REMEDY
Government Code sections 3509(b) and 3541.3(i) give PERB the authority:
To investigate unfair practice charges or alleged violations
of
this
chapter, and take any action and make any determinations in
respect
of
these charges or alleged violations as the board deems
necessary to effectuate the policies
of
this chapter.
In this case, the County violated the MMBA by acting inconsistently with its own local
rules regarding unit modification petitions. It is the ordinary remedy in such cases that an order
issue directing the respondent to cease and desist from continuing to engage in such conduct.
(Chula Vista Elementary School District (2003) PERB Decision No . .1557.)
It
is also appropriate
that the County be ordered to rescind its denial
of
Local 721
's
September 1, 2009 unit
modification petition and to process that petition in good faith according to the County's ERR.
	It
is also appropriate to require the County to post a notice incorporating the terms
of
the order.
(Placerville Union School District (1978) PERB Decision No. 69.)
It
effectuates the purpose
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. (Ibid.)
PERB typically requires that the above-referenced notice be posted in all work locations
where notices to County employees are customarily posted. (County
of
Riverside (2009) PERB
Decision 	2090-M.) 	addition to 	1 requests that 	order the County to
post the notice of violation electronically, citing in support J&R Flooring, Inc. (2010) 356 NLRB
No. 9. I find some merit in Local 721 's request, paiiicularly given that the temporary nature of
13

TAP employee job assignments may make it unlikely for TAP employees to see a traditional
notice posting. Nevertheless, I find that insufficient evidence was presented in the record about
whether the County has the capability to post PERB notices electronically or whether TAP or
other County employees were more likely to view an electronic posting over a traditional
posting. Therefore, I deny Local
721
's
request for an electronic posting.
Local
721
also requests unspecified sanctions against the County. PERB lacks the
authority to issue punitive damages. (Regents
of
the University
~f California (2010) PERB
Decision No. 2094-H, citing Mark Twain Union Elementary School District (2003) PERB
Decision No. 1548.) Thus, any remedy ordered by PERB must be compensatory in nature.
(County
of
San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M.)
However, PERB has ordered the payment
of
attorneys' fees where the respondent's case was
"without arguable merit" and pursued in "bad faith." (City
of
Alhambra (2009) PERB Decision
No. 2036-M.)
In this case, Local 721 contends that sanctions are appropriate because the County has
previously denied similar petitions by Local
721
for the same reasons and PERB found such
conduct to be unlawful. The conduct described by Local 721 is the subject
of
County
of
Riverside, supra, PERB Decision No. 2163-M. As explained above, the appellate court is
currently considering whether to review that decision. Local 721 opposed holding the instant
case in abeyance pending the court's decision. Because
of
the pending nature
of
the Decision
No. 2163-M, l find insufficient information to decide whether the County's conduct was
without arguable merit and pursued in bad faith. (City
of
Alhambra, supra, 	Decision
No. 2036-M.) Therefore, I deny Local 721
's request for sanctions.
14

PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law, and the entire record
in this case, it is found that the County
of
Riverside (County) violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3506 and 3509(b) by unreasonably and
unlawfully denying a petition submitted by Service Employees International Union, Local 721
(Local 721) on September
1,
2009, seeking to add certain Temporary Assignment Program
employees to Local 721
's
existing represented bargaining units. This conduct also violated the
MMBA by denying Local 721
's
right to represent its members and interfering with the rights
of
County employees.
Pursuant to Government Code section 3509(b), it is hereby ORDERED that the County,
its governing board, and its representatives shall:
A 	CEASE AND DESIST FROM:
1.	
Applying the rules
of
the County's Employee Relations Resolution
regarding unit modification unreasonably to require proof
of
majority support for Local 721
's
September
1,
2009 unit modification petition.
2. 	Denying Local 721 the right to represent County employees.
3. 	Interfering with the right
of
County employees to be represented
by
the
employee organization
of
their choosing.
B. 	THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind the October 30, 2009 denial
of
Local 721 's September
I,
2009
unit modification petition.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
process Local 721 's September 1, 2009 unit modification petition with a reasonable
15

interpretation
of
the County's Employee Relations Resolution that is consistent with this
Proposed Order.
3. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees in the County 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.
4. 	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 Local 721.
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
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 	should 	by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
16

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.)
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).)
Eric J. Cu
Administrative Law Judge
17