PERB Declines To Adopt NLRB Unit Mod Rule

City of Sacramento (2014) PERB Decision No. 2354-M (Issued on 2/14/14)

This is a unit modification case. The fight was between two unions, each of whom asserted that a newly created classification should be in its bargaining unit. The City did not have a local rule governing unit determination matters so the matter went to PERB. One union argued that PERB should adopt the NLRB standard set forth in Premcor, Inc. 333 NLRB 1365 (2001) (Premcor). Under Premcor, if a newly created position performs the same basic duties historically performed by the bargaining unit, there is a presumption that the position should remain in the unit and a community of interest inquiry is not required. The Board declined the invitation to adopt Premcor. The Board noted that there is actually tension between EERA cases and those under HEERA and the Dills Act. For example, the Board noted that under HEERA and the Dills Act, retired annuitants are not presumptively included in the unit of employees where the annuitants’ duties have historically been performed. If Premcor applied, annuitants would presumptively be included in those units. But here, the Board held that it did not need to resolve this tension since Premcor did not apply to the facts in this case since the duties of the newly created classification were not exclusively performed by a single bargaining unit.

Comments:

This case illustrates the importance of local rules under the MMBA. If you’re an MMBA jurisdiction and you have local rules covering a representational issue, PERB will defer to your local rules as long as they are reasonable. However, if you do not have local rules PERB will decide representational issues using its own rules. MMBA jurisdictions should consider adopting local rules covering all representational issues. You’re usually better off maintaining your local agency’s discretion rather than ceding it to PERB. This case illustrates the potential danger in deferring to PERB. What if PERB had adopted the Premocor presumption? If your local agency didn’t have a rule on unit determination issues, the Premcor presumption would be applied to you even if you didn’t agree with it. However, if you had your own local rules you could continue to apply them, subject to the reasonableness test.