PERB Finds County’s Unit Mod Rule Unreasonable

County of Riverside (2012) PERB Decision No. 2239-M (Issued on 2/24/12)

The Riverside Sheriff’s Association (RSA) wanted to represent a handful of classifications already represented by two other unions. Under PERB’s regulations (which would apply if the county had no local rules), such an action would be accomplished by filing a severance petition. However, the county’s local rules do not contain a severance provision. Instead, the county allows the same action to be accomplished through a unit modification petition. Under the County’s local rules, a unit modification petition must be accompanied by proof of 15% support. The question before PERB was 15% of what?

The County argued that the RSA must show 15% support in both the donor unit and the recipient unit. The RSA argued that, at best, the local rules can only require a 15% showing from the recipient unit. A look at the numbers illustrates the situation. The RSA wanted to represent supervising welfare fraud investigators. There were 3 such positions in the unit represented by SEIU. That unit contained a total of 1,327 unit members. RSA got proof of support from all 3 of the supervising welfare fraud investigators. There was also no dispute that RSA had majority support in its existing unit. Accordingly, there was no dispute that RSA had a showing of at least 15% support from the entire proposed recipient unit. However, the County argued that RSA also had to demonstrate 15% support from the entire donor unit. Thus, the County asserted that RSA had to gather proof of support from 15% of the 1,327 unit members in SEIU’s bargaining unit. RSA argued that such a task was not practicable and constituted an unreasonable local rule.

PERB agreed with RSA. In the proposed decision, the ALJ held:

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 Board adopted the proposed decision with very little discussion.

Comments:

Historically, the Board will often write an entirely new decision even when adopting the underlying proposed decision. Here, the Board just adopted the underlying ALJ decision with very little discussion. Nevertheless, by adopting the ALJ’s decision the Board incorporated it into its own precedential decision.
As I read the proposed decision, it is still permissible to have a local rule that requires a showing of support (whether 15% or some other reasonable number) from the entire recipient unit, which would include the employees targeted for severance along with those already in the recipient unit. However, it is unreasonable to have a local rule that requires a showing of support from those employees not targeted for severance in the donor unit.
In the future, local agencies need to be aware of this distinction when processing severance-type petitions.