PERB: Local Rules Can't Require Peace Officer Only Units If Not Requested

County of Calaveras (2012) PERB Dec. No. 2252-M (Issued on 04/18/12)

This case involves an unfair practice charge brought by the Service Employees International Union (SEIU) against the County of Calaveras (County). SEIU alleged that the County committed an unfair practice by violating its own local rules. Specifically, SEIU alleged that the County approved a mixed bargaining unit of peace officer and non-peace officer classifications in contravention of its local rules which state, “Peace officers and limited term peace officers must be represented in separate units composed solely of such peace officers.”

In deciding whether the County committed an unfair practice, the Board turned to MMBA section 3508, subdivision (a), which states:

However, the governing body may not prohibit the right of its employees who are full-time “peace officers,” … to join or participate in employee organizations which are composed solely of those peace officers …

According to the Board, MMBA section 3508, subdivision (a), gives peace officers the affirmative right to insist on a bargaining unit comprised solely of peace officers. However, according to the Board, nothing in the MMBA requires peace officers to exercise that right. Thus, the Board held that the County’s local rule requiring peace officers to be in their own units, even when not requested, is an unreasonable local rule that cannot be enforced. Because the County did not try to enforce its own local rule, but rather complied with the requirements of the MMBA, the Board found that the County did not commit an unfair practice.

Comments:

The issue of whether peace officers must always be in their own bargaining unit was a matter of first impression before PERB. The Board’s answer was a clear, no. However, in my opinion, this decision does not mean that an employer must approve mixed bargaining units comprised of peace officers and non-peace officers in all situations. In determining the appropriateness of a bargaining unit, most local rules require an assessment of the “community of interest” among employees in the proposed unit. Depending on the situation, it’s entirely possible that an employer could determine that the most appropriate bargaining unit is one comprised solely of peace officers as opposed to a mixed unit. But under this decision, such a determination must be made after assessing the community of interest factors and not because of a blanket rule.
This case is also a good reminder to employers to check their local rules against the requirements of the MMBA. For example, many local rules still do not recognize a “card check” procedure for obtaining recognition in lieu of an election. Under this decision, such a local rule would be considered an “unreasonable” local rule because it conflicts with the MMBA and could not be enforced.