proposed decision.2013.07.24
TRANSCRIPT
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STATE OF CALIFORNIA G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD Sacramento Regional Office
1031 18th Street JUL S9 2013 Sacramento, CA 95811-4124
Telephone: 916-324-0143 SLO CITY ATTORNEYFax: (916) 327-6377
July 24, 2013
Re: San Luis Obispo Utility Service Employees Association v. City o/San Luis Obispo Case No. LA-CE-764-M
Dear Parties:
Attached is the Public Employment Relations Board (PERB or Board) agent's Proposed Decision in the above-entitled matter.
Any party to the proceeding may file with the Board itself a statement of exceptions to the Proposed Decision. The statement of exceptions shall be filed with the Board itself at the following address:
PUBLIC EMPLOYMENT RELATIONS BOARD
Attention: Appeals Assistant
1031 18th Street, Suite 200
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
Pursuant to California Code of Regulations, title 8, section 32300, an original and five copies of the statement of exceptions must be filed with the Board itself within 20 days of service of this decision. A document is considered "filed" when actually received during a regular PERB business day. (Cal. Code Regs., tit. 8, 32135, subd. (a); see also, Cal. Code Regs., tit. 8, 32130.)
A document is also considered "filed" when received by facsimile transmission before the close of business together with a Facsimile Transmission Cover Sheet that meets the requirements of California Code ofRegulations, title 8, section 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.)
The statement of exceptions shall be in writing, signed by the party or its agent and shall: (1) state the specific issues of procedure, fact, law or rationale to which each exception is
taken; (2) identify the page or part of the decision to which each exception is taken;
(3) designate by page citation or exhibit number the portions of the record, if any, relied upon for each exception; and (4) state the grounds for each exception. Reference shall be made in the statement of exceptions only to matters contained in the record of the case. An exception
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LA-CE-764-M July 24, 2013 Page 2
not specifically urged 'snaIl be;y'vai~ed. A supporting brief may be filed with the statement of
exceptions. (Cal. Code Regs., tit. 8, 32300.)
Within 20 days following the date of service of a statement of exceptions, any party may file with the Board itselfan original and five copies of a response to the statement of exceptions and a supporting brief. The response shall be filed with the Board itself at the address noted above. The response may contain a statement of any exceptions the responding party wishes to take to the proposed decision. Any such statement of exceptions shall comply in form with the requirements of California Code ofRegulations, title 8, section 32300. A response to such exceptions may be filed within 20 days. Such response shall comply in form with the provisions of this section.
All documents authorized to be filed herein must also be "served" upon all parties to the proceeding, and a "proof of service" must accompany each copy of a document served upon a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, 32140 for the required contents.) The document will be considered properly "served" when personally delivered or deposited in the mail or deposited with a delivery service and properly addressed. A document may also be concurrently served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, 32135, subd. (c).)
Any party desiring to argue orally before the Board itself regarding the exceptions to the proposed decision shall file with the statement of exceptions or the response thereto a written request stating the reasons for the request. Upon such request or its own motion the Board itself may direct oral argument. (Cal. Code Regs., tit. 8, 32315.) All requests for oral argument shall be filed as a separate document.
A request for an extension of time within which to file any document with the Board itself shall be in writing and shall be filed at the headquarters office 'at least three days before the expiration of the time required for filing. The request shall state the reason for the request and, ifknown, the position of each other party regarding the extension. Service and proof of service pursuant to California Code of Regulations, title 8, section 32140 are required. Extensions of time may be granted by the BOard itselforan agent designated])), the Board itself for good cause only. -(Cal. Code Regs., tit. 8, - 32132, su.bd:-(il).)
. Unless a party files a timely statement of exceptions to the proposed decision, the decision shall become final. (Cal. Code Regs., tit. 8, 32305.)
Very truly yours,
Shawn Cloughesy Chief Administrative Law Judge
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PROOF OF SERVICE
I declare that I am a resident of or employed in the County of Sacramento, California. I. am over the age of 18 years and not a party to the within entitled cause. The name and address of my residence or business is Public Employment Relations Board, 1031 18th Street, Sacramento, CA 95811-4124.
On July 24,2013, I served the Letter with Proposed Decision in: San Luis Obispo Utility ServiCe Employees Association v. City olSan Luis Obispo, Case No. LA-CE-764-M, on the parties listed below by
-X- placing a true copy thereof enclosed in a sealed envelope for collection and delivery by the United States Postal Service or private delivery service following ordinary business practices with postage or other costs prepaid.
_ personal delivery. _ facsimile transmission in accordance with the requirements of PERB
Regulations 32090 and 32135(d).
Ralph Royds, Labor Representative Public Labor Advisors 6285 East Spring Street, Suite 355 Long Beach, CA 9.0808
Bruce A. Barsook, Attorney Stacy L. Velloff, Attorney Leibert, Cassidy, Whitmore 6033 West Century Boulevard, 5th Floor Los Angeles, CA 90045
J. Christine Dietrick, City Attorney City of San Luis Obispo . 990 palm street San Luis Obispo, CA 93401-324
I declare under penalty ofperjury that the foregoing is true and correct and that this
declaration was executed on July 24, 2013, at Sacramento, California.
Regina Keith (Type or print nanle)
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN LUIS OBISPO UTILITY SERVICE EMPLOYEES ASSOCIATION,
Charging Party,
v.
CITY OF SAN LUIS OBISPO,
Res ondent.
UNFAIR PRACTICE CASE NO. LA-CE-764-M
PROPOSED DECISION (July 24, 2013)
Appearances: Public Labor Advisors by Ralph Royds, Representative, for San Luis Obispo Utility Service Employees Association; Liebert Cassidy Whitmore by Bruce A. Barsook and Stacy L. Velloff, Attorneys, and J. Christine Dietrick, City Attorney, for City of San Luis Obispo.
Before Valerie Pike Racho, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee organization alleges that a public employer unlawfully
applied its local rules regarding recognition and unit appropriateness and thereby unreasonably
refused a request for recognition in violation of the Meyers-Milias-Brown Act.! The employer
denies any violation of the law.
The San Luis Obispo Ut~~ity Service Employees Association (SLOUSA) initiated this
action by filing an unfair practice charge with the Public Employment Relations Board (PERB
or Board) against the City of San Lui"s Obispo (City) on April 18, 2012. The charge alleged
that the City failed to properly apply the City's local rules covering recognition and unit
composition to SLOUSA's petition to sever several classifications from an existing general
unit and create a new utilities unit. On May 30,2012, the PERB Office of the General Counsel
issued a complaint alleging that the City violated the MMBA and its own local rules when it
I The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.
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found thatthe petitioned-for employees did not constitute an appropriate bargaining unit
because, among other reasons, they did not share a sufficient community of interest. On
June 18,2012, the City answered the complaint, denying that its unit determination violated its
local rules or the MMBA.
PERB conducted an informal settlement conference with the parties on August 1, 2012,
but the dispute was not resolved. On September 19,2012, the case was transferred from Chief
Administrative Law Judge (ALJ) Shawn Cloughesy, to ALJ Valerie Pike Racho. Neither party
objected to the transfer. On January 14, 2013, the parties jointly submitted a statement of facts
with 16 attached exhibits in lieu of holding an evidentiary hearing. The parties stipulated that .
their joint submission would constitute the complete evidentiary record in the case. With the
receipt of the parties' closing briefs on February 7, 2013, the record was closed and the case
was submitted for decision.
FINDINGS OF FACT
The Parties
The City is a public agency within the meaning ofMMBA section 3501(c) and PERB
Regulation 32016(a).2 SLOUSA is an employee organization within the meaning ofMMBA
section 3501 (a)(2). The San Luis Obispo City Employees Association (SLOCEA) is the
exclusive representative of a general unit of City employees, including those employed in the
water and wastewater divisions of the utilities department that were the subject ofSLOUSA's
severance petition.3
2 PERB regulations are codified at California Code of Regulations, title 8, section 31001 et seq.
3 The City raised as an affirmative defense in its answer to the complaint that SLOCEA should be joined as a necessary and indispensable party to the case. This issue was not addressed by motion or in either party's closing brief, however, and SLOCEA did not seek to participate in the litigation. Therefore, there does not appear to be adequate grounds to order joinder under PERB Regulation 32164.
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Existing Representation Units
The City employs approximately 350 employees in four bargaining units. Police
department employees are included in two units and firefighters are in a single unit.4 SLOCEA
represents the fourth and largest unit, encompassing approximately 70 classifications in almost
every City department, including: utilities, public works, parks and recreation, finance,
information technology, and community development. Roughly one-third ofSLOCEA's unit
are employed in the utilities department. SLOCEA has represented these employees for as
long as the City has maintained such records, at least since the late-1970s. Since 1992,
SLOCEA bylaws have required that the SLOCEA board of directors include utilities employee
representatives.
SLOUSA's Severance and Recognition Petition
On or about September 16,2011, SLOUSA filed a petition with the City seeking to
sever 17 classifications from the general unit represented by SLOCEA. All of the employees
encompassed by the petition were working within the water and wastewater divisions of the
utilities department.s The petition therefore requested recognition of SLOUSA as the
exclusive representative of a newly formed utilities unit. Around one week earlier, in a letter
dated September 9, 2011, SLOUSA representative Ralph Royds sent a letter analyzing the
community of interest among the requested unit positions to the City's Human Resources
4 At the time of SLOUSA's petition there was a fifth unit of fire battalion chiefs. That unit was later eliminated and the three fire battalion chiefs joined the existing firefighters unit.
S The classifications sought were: Wastewater Collections Systems Operator, Water Customer Service Personnel, Water Distribution System Operator, Water Reclamation Facility Chief Operator, Water Reclamation Facility Chief Maintenance Technician, Water Reclamation Facility Maintenance Technician, Water Reclamation Facility Operator, Water Supply Operator, Water Treatment Plant Chief Operator, Water Treatment Plant Maintenance Technician, Water Treatment Plant Operator, Supervising Administrative Assistant, Administrative Assistant, Environmental Compliance Inspector, Laboratory Analyst, Underground Utilities Locator, and Utilities Conservation Technician.
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Director, Monica Irons.6 SLOUSAchiefly argued that the factors supporting a community of
interest between the sought-after classifications were: (1) that all work performed by these
employees was done primarily at remote worksites and involved the treatment, distribution,
and collection of water and wastewater; (2) that most of them worked with specialized
equipment; and (3) that many required specialized training, licensing, and certifications with
requisite oversight by State regulators.7 SLOUSA maintained that these shared characteristics
were distinct from other City employees, and therefore bolstered the argument that severance
was appropriate.
SLOUSA also argued that SLOCEA had not provided utilities employees with adequate
representation, noting specifically that the issue of "skills based pay" f~r utilities workers had
not been prioritized by the incumbent representative. Skills based pay referred to a program
piloted in 2001 and implemented in 2004 in the utilities department, wherein compensation
was based upon the achievement of certain skills and certifications for some utilities
classifications. Nine of the classifications involved in the severance request received skills
based pay, and the remaining eight classifications were paid under the City's standard salary
. step system. To date, skills based pay is not included in the memorandum of understanding
between the City and SLOCEA.
On September 21, 2011, Irons sent a letter to SLOUSA representatives Jeff Montijo and
Donald Thomas informing them that SLOUSA's petition was procedurally compliant with
section 10 of the City's Employer-Employee Relations Resolution (ERR or local rules), and
6 This letter also referenced an earlier conversation between Royds and Irons regarding SLOUSA's severance request. The record does not explain why this letter preceded the filing of the petition.
7 SLOUSA acknowledged that this was not true for the sought-after administrative positions proposed to be included in the utilities unit, but argued that the administrative staff working in the water and wastewater divisions required "specialized knowledge" by virtue of working for a utility.
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that she would evaluate the petition under the community of interest factors set forth in ERR
section 11. After that analysis, Irons would then make a recommendation over unit
appropriateness to the City's employee relations officer, City Manager Katie Lichtig.
The City's Local Ru1es
The ERR does not contain a provision specific to severance. However, it is undisputed
that the City processed SLOUSA's severance request under existing local rule provisions
covering recognition of an employee organization as a majority representative (section 10) and
unit appropriateness (section 11).8 It is also undisputed that the City foundSLOUSA's petition
compliant with ERR section 10, and pursuant to that section SLOUSA sought formal
recognition as a majority representative. ERR section 11 requires the City to analyze the
following "community of interest" factors when tasked with determining whether a proposed
unit is appropriate upon receipt of a request for formal recognition as a majority representative:
1. Which unit will assure employees the fullest freedom in the exercise of rights;
2. The history of employee relations in the unit, among other employees of the City, and in similar public employment;
3. The effect of the unit on the efficient operation and consistent with the organizational structure of the City and sound employer-employee relations;
4. The extent to which employees have common skills, working conditions, job duties, or similar educational requirements; and
5. The effect on the existing classification structure of division on a single classification among two or more units.
g The parties, therefore, do not dispute that severance could be accomplished under the City's local rules in this case, and this is not at issue. (See County 0/Orange (2010) PERB Decision No. 2138-M [PERB's representation regulations only serve to "fill in the gap" for a public agency's failure to adopt a rule covering a particular representation issue where the agency's ru1es contain no provision that could accomplish what the petitioner seeks without placing an un~ue burden on the petitioner]; see also County o/Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No. 2113-M.)
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ERR section 11 also mandates: "Representation units should consist of the broadest feasible
grouping of positions that share ari identifiable community of interest. Every effort should be
made to minimize the proliferation of units within the guidelines established."
The City's Disposition of the Petition
On or about October 12, 2011, Irons made a written recommendation to Lichtig that
SLOUSA's petition be denied for a lack of unit appropriateness. Lichtig reviewed the
recommendation and adopted it. Lichtig and Irons presented the City's determination to
Montijo and another SLOUSA representative, Randy Stevenson, in person and in writing on
October 20,2011. The City summarized SLOUSA's arguments and analyzed each of the
community of interest factors discussed above as follows.
1. Employee Freedom
The City acknowledged that utilities employees desired to separate from SLOCEA
because they believed that their duties, education, training, work locations, hours, and
compensation differed significantly from the rest of the employees represented by SLOCEA,
and that a recent change in SLOCEA legal representation had not addressed the unique needs
of utilities workers. Specifically regarding the latter point, SLOUSA highlighted that skills
based pay had not been included in the current contract between SLOCEA and the City.
SLOUSA also alleged internal conflict within SLOCEA because the utilities department "is an
enterprise fund," and utilities employees desired to be in a unit consisting entirely of enterprise
fund employees.9
In responding to those arguments, the City noted that approximately 40 percent of
positions in the general unit represented by SLOCEA were enterprise fund positions, with
roughly 34 percent from the utilities department (utilities enterprise fund), but also with
9 The difference in the method of funding between general funds and enterprise funds is not clearly explained in the record, but it can be surmised that such funding sources are distinct from each other.
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7 percent derived from the parking division of the public works department (parking enterprise
fund). The City found that the argument regarding differing duties, training, compensation,
etc., among utilities workers could also be made among other various subgroups of employees
represented by SLOCEA, and thus was not unique to utilities employees. The City also
observed that the issue of skills based pay was not without controversy within the utilities
department itself, and that SLOCEA had been in discussions with the City over its inclusion in
the current memorandum of understanding. The City noted that a similar skills based pay
program was being developed for maintenance classifications within the public works
department.
2. History of Employee Relations
The City found significant the fact that SLOCEA had always represented employees in
the utilities department, and noted that there had been very little change in the composition of
City bargaining units over the years. The most common change involved moving a
classification or career series from one bargaining unit to another. Regarding a comparison
with other public agencies, two out of nine comparison agencies had separate units for
utilities/maintenance workers, but the majority contained utilities classifications within a
general unit.
3. Effect on Efficient Operations
SLOUSA maintained that the proposed unit was consistent with the City's operation
and organizational structure because it would align all non-management utilities classifications
within a single unit of employees who would have little need to interact with or rely on
employees in other City departments. The City disagreed with this assessment, finding instead
that utilities employees: .
[R]egularly interact and rely on employees in the Finance and Information Technology department for utility billing, GIS related issues such as valve excising/locating, manhole locations,
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treatment plant equipment, and water conservation[,] as well as the Public Works department related to solid waste disposal, stormwater, paving, capital projects, project inspections, fleet maintenance, recycled water and laboratory analysis.
4. Common Skills, Working ConditionslDuties, or Similar Education
SLOUSA argued that utilities employees required specialized training and
certifications, used specialized equipment, and worked at locations not generally accessible to
other City employees. SLOUSA also contended that water and wastewater employees kept
abreast of work assignments in the divisions for operational needs. In responding to these
arguments, the City noted that while the water and wastewater divisions of the utilities
department each utilized specialized equipment, this equipment "for obvious reasons" was not
shared between the divisions.lO Furthermore, employees in each division had distinct State
certification requirements, and employees were not cross-trained to work in both divisions.
Twelve out of 17 classifications sought to be included in the utilities unit required
specialized certifications or licenses as a job prerequisite, leaving five classifications in the
proposed unit without any requirement for specialized education or certifications (including the
two administrative classifications and three others). In addition, the City found that the need
for specialized certifications was not unique to the utilities department. Many classifications
outside of the utilities department that were included in the existing unit also required
specialized certifications and/or two-to-four year degrees, for example: Building Inspector,
Code Enforcement Officer, Engineer, Engineering Inspector, GIS Specialist, Network
Administrator,Parks and Maintenance Technician, Plans Examiner,Planner, and Tree
Trimmer.
10 While not explicit in the factual record, it can be presumed that the City's reference to "obvious reasons" for not sharing equipment between the water and wastewater divisions is because of the risk ofwater contamination by waste particulates.
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5. Single Classification Divided Among Two or More ~nits
Analysis under this factor only applied to the two administrative positions requested to
be included in the proposed unit. The City observed that most other City departments
employed Administrative Assistants and Supervising Administrative Assistants, including the
police and fire departments. These administrative positions shared common duties that were
adapted based on departmental need. Opportunities for advancement for administrative
assistants was both intra-departmental and inter-departmental. The administrative assistant
classification is the only one in the City that was divided among several bargaining units.
6. Other Considerations
Based on its analysis of the factors discussed above, the City concluded that the
proposed unit was not appropriate. The City also found that SLOUSA's petition did not align
with the mandate in ERR section 11 to maintain bargaining units with the largest feasible
grouping of positions containing an identifiable community of interest and to minimize unit
proliferation. The City concluded that the petition did not contain the broadest feasible
grouping, as summarized by Irons in her written analysis:
Given that the Utilities and Public Works Departments are currently examining organizational synergies, the Public Works Department is considering implementing [skills based pay] for Maintenance classifications, and that many non-Utilities classifications within SLOCEA require certifications and/or degrees, I do notseegranting this unit in the bestinterest or furthering employee relations.
ISSUE
Whether the City applied its local rules regarding recognition and unit appropriateness
in 'an unreasonable manner, thereby unlawfully denying SLOUSA'srequest for severance?
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CONCLUSIONS OF LAW
The MMBA permits local public agencies to "adopt reasonable rules and regulations"
for the administration of employer-employee relations, including procedures for determining
exclusive recognition of employee organizations and "appropriate" units of employees for
collective bargaining purposes. (MMBA, 3507, subd. (a)(4).) MMBA section 3509,
subdivision ( c) empowers PERB to "enforce and apply rules adopted by a public agency
concerning unit determinations, representation, recognition, and elections." Thus, an employee
organization may challenge a public agency's determination made pursuant to local rules
through the unfair practice procedure before, PERB.ll (See County ofRiverside (2010) PERB
Decision No. 2119-M (Riverside).)
. When evaluating a public agency's unit determination under local rules, PERB's
inquiry is whether the agency's determination was reasonable. (City ofGlendale (2007) PERB
Order No. Ad-361-M (Glendale); Alameda County Assistant Public Defender's Assn. v.
County ofAlameda (1973) 33 Cal.App.3d 825, 830 (Alameda).) "Ifreasonable minds could
differ over the appropriateness of the determination, PERB should not substitute its judgment
for that of the local agency." (Riverside, supra, PERB Decision No. 2119-M at p. 13, citing . .
Organization ofDeputy Sheriffs v. County ofSan Mateo (1975) 48 Cal.App.3d 331, 338
(San Mateo).) A local government employer is not required to determine "the ultimate unit or
most appropriate unit. The act requires only that the unit be 'appropriate. '" (Alameda, supra,
at p. 830, emphasis in original; see also Antioch Unified School District (1977) EERB12
11 MMBA section 3507, subdivision (d) also provides a mechanism for an employee organization to challenge that a local rule is unreasonable and therefore violates the MMBA. There is no such challenge here, however, as SLOUSA stipulated that it does not allege that the applicable local rules in this case are unreasonable. (See Joint Factual StipUlation No. 49.)
12 Prior to 1978, PERB was known as the Educational Employment Relations Board
(EERB).
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Decision No. 3713.) The party challenging a public agency's unit determination bears
the burden of demonstrating that the decision was not reasonable (San Mateo, supra, at
pp. 338-339), and where that burden has not been met, the Board has refused to disturb the unit
determination. (Riverside, supra, PERB Decision No. 2119-M; Glendale, supra, PERBOrder
No. Ad-361-M.)
In Riverside, supra, PERB Decision No. 2119-M, an employee organization challenged
the employer's denial ofa petition seeking to create a new unit of temporary employees who
worked in a variety of different departments of the employer. The Board upheld the
employer's determination, even though there were some factors (e~g., a similar wage and
benefits structure) supporting a community of interest between the employees in the
petitioned-for unit. The Board found that there were other factors that weighed against finding
a community of interest, notably, the diversity ofjob functions performed and the fact that
permanent employees in analogous job classifications were spread across multiple units.
Therefore, the Board found the employer could reasonably conclude in that instance that the
proposed unit was not appropriate. (Id. at pp.'14-1S.)
Similarly, in Glendale, supra, PERB Order No. Ad-361-M, PERB refused to overturn
an employer's decision refusing to grant a severance petition. In that case, the petitioning
employee organization sought to carve out certain electrical services and power plant "skilled
crafts" classifications working in the employer's department of water and power from a
general employee unit represented by another organization. The petitioning employee
organization did not provide evidence that the employer's analysis under its local rules was
13 When interpreting the MMBA, it is appropriate to take guidance from cases interpreting the National Labor Relations Act and California labor relations statutes with parallel provisions. (Fire Fighters Union v. City o/Vallejo (1974) 12 Ca1.3d 608.)
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unreasonable, but merely provided to PERB a "virtually identical recitation of arguments" that
it had presented to the employer. (Id. at p. 3.) The Board noted that the employer's local rules
set forth similar unit determination criteria as considered by the courts and PERB. (Id. at
pp.5-6.) The Board noted that the employer had analyzed all ofthe criteria for unit
appropriateness, and found that the employer then reasonably concluded that the sought-after
employees shared a greater community of interest with the existing unit. The Board also noted
that the petitioning employee organization failed to refute that the sought-after employees
lacked a community of interest with the existing unit. (Id. atp. 6.)
Under the authorities discussed above, SLOUSA has failed to meet its burden of
demonstrating that the City's unit determination was unreasonable. As in Glendale, supra,
PERB Order No. Ad-361-M, the City here provided a comprehensive analysis of its criteria for
determining an appropriate unit, and those criteria are similar to those used by the courts and
PERB. (See also, Santa Clara County DistrictAttorney Investigators Assn. v. County of
Santa Clara (1975) 51 Cal.App.3d 255, 260; Educational Employment Relations Act (EERA),
3545, subd. (a).[14]) Similar to Riverside, supra, PERB Decision No. 2119-M, although some
factors here weigh in favor of a community of interest between utilities employees (e.g., that a
majority of utilities classifications receive skills based pay and work at remote locations),
several others weigh against it.
Importantly, SLOUSA does not refute the City's determinations that employees in
the water and wastewater divisions were not cross-trained with each other, did not work with
the same specialized equipment or perform the same duties, and did not have the same
specialized certifications and licensing requirements. IS Thus, the City's determination that
utilities employees did not share sufficient community of interest with each other in order to
14 EERAis codified at Section 3540 et seq.
15 Nor did all classifications in either division require specialized certifications.
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form an appropriate unit cannot be found unreasonable. (Riverside, supra, PERB Decision
No. 2119-M.) Furthermore, the fact that utilities employees could feasibly be put in their own
separate bargaining unit does not" compel the City to do so. (Glendale, supra, PERB Order
No. Ad-361-M [the MMBA, unlike the Higher Education Employer-Employee Relations Act
(HEERA),16 does not provide a right to a separate unit of skilledtrades employees].)
SLOUSA also does not refute the City's findings that: (1) utilities employees were not
the only City employees paid from enterprise funds (and thus the petitioned-for unit would not
include all enterprise fund employees); (2) many other classifications in the existing general
unit also required specialized certifications, licensing, and oversight by State regulatory
agencies; (3) utilities employees regularly interacted with and relied on existing unit
employees working in the finance, information technology, and public works departments; or
(4) eight of the sought-after classifications did not receive skills based pay, but rather were
paid under the same methods of salary calculation as employees in the existing unit. All of
these findings amply support a conclusion that utilities employees share a community of
interest with each other. Therefore, it cannot be foundthat the City's determination that
utilities employees should remain in the general unit was unreasonable. (Glendale, supra,
PERB Order No. Ad-361-M; Alameda, supra, 33 Cal.App.3d 825, 830.) Thus, the City's unit
determination did not violate its local rules or the MMBA.
PROPOSED ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in
this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-764-M,
San Luis Obispo Utility Service Employees Association v. City ofSan Luis Obispo, are hereby
DISMISSED.
16 HEERA is codified at Section 3560 et seq.
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Right to Appeal .
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
103 1 18th Street
Sacramento, CA 95811-4124
(916) 322-8231 FAX: (916) 327-7960
E-FILE: [email protected]
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 ofbusiness together with a Facsimile Transmission Cover Sheet
or received by electronic mail before the close of business, 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, 32090,32091 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).)
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