State of California (Department of Personnel Administration) (California State Peace Officers Association and California Union of Safety Employees) (PERB 0773S)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Employer,
and
CALIFORNIA 	STATE 	PEACE 	OFFICERS
ASSOCIATION,
Petitioner,
and
CALIFORNIA 	UNION OF 	SAFETY
EMPLOYEES,
Exclusive 	Representative.
Case No. 	S-S-115-S
PERB Decision No. 	773-S
September 29, 	1989
Appearances: 	Christine A. 	Bologna, 	Attorney, 	for State of
California 	(Department of Personnel Administration);
Beeson, 	Tayer, 	Silbert & Bodine by John Provost, 	Attorney, 	for
California State Peace Officers Association; 	and Loren E.
McMaster, 	Attorney, 	for California Union of Safety Employees.
Before Porter, 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California State Peace Officers Association 	(CSPOA) 	to 	the
proposed decision, 	attached hereto, 	of a PERB administrative 	law
judge 	(ALJ) 	on a 	severance petition filed by CSPOA. 	The ALJ
found 	insufficient 	justification to 	grant 	the proposed 	severance,
and 	further 	found 	that his 	authority was 	limited 	to 	granting or
dismissing 	the 	severance petition as 	filed and did 	not 	extend 	to
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granting 	a 	severance different 	than that proposed 	in the
petition.
The Board, 	after review of the entire record, 	finds 	the
ALJ's 	findings of 	fact to be 	free of prejudicial 	error. 	We are
also 	in agreement with his 	conclusions 	of 	law, 	and therefore
affirm his 	decision, 	consistent with the discussion below.
PROPOSED 	DECISION
The 	criteria 	for determining the appropriateness 	of 	a
proposed unit under the Ralph C. 	Dills Act 	(Dills Act) 	are 	set
forth in Government Code 	section 3521(b),1 which provides:
(b) 	In determining an appropriate unit, 	the
board 	shall 	take 	into 	consideration all 	of
the 	following 	criteria:
(1) 	The 	internal 	and occupational 	community
of 	interest among the employees, 	including,
but not 	limited to, 	the extent to which they
perform 	functionally 	related 	services 	or work
toward 	established common goals; 	the history
of 	employee 	representation 	in 	state
government and 	in 	similar employment; 	the
extent to which the 	employees 	have 	common
skills, working conditions, 	job duties, or
similar 	educational 	or 	training 	requirements;
and the 	extent 	to which the 	employees 	have
common 	supervision.
(2) 	The 	effect that the projected unit will
have on the meet and 	confer relationships,
emphasizing 	the 	availability 	and 	authority 	of
employer 	representatives 	to 	deal 	effectively
with 	employee 	organizations 	representing 	the
unit, 	and taking 	into account 	such factors 	as
work location, 	the numerical 	size of the
unit, 	the relationship of the unit to
organizational patterns 	of 	the 	state
government, 	and the 	effect on the existing
Ralph 	C. 	Dills Act 	is 	codified at Government Code 	section
3512 	et 	seq. 	Unless otherwise 	indicated, 	all 	statutory
references 	herein are to 	the Government Code.
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classification 	structure 	or 	existing
classification 	schematic 	of 	dividing a 	single
class 	or 	single 	classification 	schematic
among two or more units.
(3) 	The 	effect of 	the proposed unit on
efficient 	operations 	of 	the 	employer and 	the
compatibility 	of 	the 	unit with 	the
responsibility of 	state 	government 	and 	its
employees 	to 	serve the public.
(4) 	The number of 	employees 	and
classifications 	in a proposed 	unit 	and 	its
effect on the operations of the employer, 	on
the objectives 	of providing the 	employees 	the
right to effective representation, 	and on the
meet 	and 	confer 	relationship.
(5) 	The 	impact on the meet and confer
relationship 	created 	by 	fragmentation of
employees 	or any proliferation of units 	among
the 	employees 	of the 	employer.
(6) 	Notwithstanding the 	foregoing provisions
of this 	section, 	or any other provision of
law, 	an appropriate group of 	skilled crafts
employees 	shall have the right to be a
separate unit 	of 	representation based 	upon
occupation. 	Skilled 	crafts 	employees 	shall
include, 	but not necessarily be 	limited to,
employment categories 	such as 	carpenters,
plumbers, electricians, painters, and
operating 	engineers.
In reaching his 	decision, 	the ALJ properly analyzed 	the
factual 	record before him with 	reference 	to 	these 	statutory
criteria. 	His 	extensive 	comparison between the 	classifications
sought to be 	included and 	excluded 	from the proposed unit, 	as
well 	as 	his 	other 	factual determinations, 	are 	supported by the
record 	and 	are 	therefore 	adopted by 	the 	Board 	and 	incorporated
herein. 	What 	follows 	is 	a brief 	summary of 	those comparisons 	and
factual 	conclusions.
3
3

California Union of 	Safety Employees 	(CAUSE) 	has 	been the
exclusive 	representative 	of 	employees 	in existing 	state
bargaining Unit 	7, 	the 	Protective 	Services 	and Public 	Safety
Unit, 	since the creation of the unit in 	1979. 	The board of
directors 	of CAUSE 	is 	composed of 	representatives 	of 	affiliate
organizations. 	CAUSE has 	internally organized 	itself 	into 	four
subunits or groups: 	uniformed, 	investigator, 	regulatory and
support. 	Representatives 	of 	each of 	these 	subunits 	have
participated 	in bargaining. 	Issues 	pertaining primarily to 	a
particular 	subunit 	have been bargained 	separately. 	As 	for
bargaining history, 	vis-a-vis 	the proposed unit, 	none of the
provisions 	in the 	collective bargaining 	agreements 	that were
negotiated prior to 	the hearing 	in this 	case were both 	common to
and 	limited 	to 	the 	classifications 	in the proposed 	severance
unit.
On March 2, 	1987, 	CSPOA filed a petition with PERB 	seeking
to 	sever a 	group 	of 	employees 	from existing 	state bargaining
Unit 	7.22 The proof of 	support was 	found to be 	sufficient by the
2 The 	fifth 	and 	final 	amended petition 	filed 	on 	December 	22,
1987, 	included the following 	job classifications:
Fish & 	Game Warden Cadet
Fish & Game Warden, 	Dept, 	of Fish & Game
Lieutenant, 	Fish & Game Patrol Boat
Lifeguard
Hospital Peace Officer I
Sergeant, OCSP
Sergeant, 	State Fair Police
State 	Fair Police 	Officer
State Fair Police Office, 	Seasonal
State 	Security 	Officer
State 	Park Cadet 	(Lifeguard)
State 	Park Cadet 	(Ranger)
4

Sacramento Regional Director of PERB. 	Both CAUSE, 	the 	exclusive
representative 	for Unit 	7, 	and the Department of Personnel
Administration 	(DPA) 	opposed the original petition. 	CSPOA
amended 	its 	petition 	four times 	before 	the hearing 	commenced 	and
once during the hearing, 	and the parties 	modified their positions
depending upon the proposed 	severance. 	Finally, 	DPA opposed 	the
fifth and 	final 	amended petition while CAUSE 	took a 	neutral
position.
State Park Ranger I
State 	Police Officer
State 	Police Officer Cadet 	(Female)
State 	Police Officer Cadet 	(Male)
Warden-Pilot, 	Dept, 	of Fish & Game
All 	of 	the 	classifications 	in the proposed unit 	are part 	of
the 	uniformed 	sub-unit within the CAUSE 	organization, 	but 	the
proposed unit does 	not 	include all 	employees 	in the uniformed
sub-unit. 	Most, 	but not all, 	employees within the proposed unit
wear 	easily 	identifiable uniforms. 	Employees 	in other
classifications, 	outside the proposed unit, 	however, 	also wear
uniforms. 	Generally, 	most, 	but not all, 	of those sought to be
included 	in the proposed unit 	are 	engaged 	in high visibility
patrol duties with 	set geographical 	areas. 	Employees 	in the
proposed unit 	share many, 	but not all, 	duties. 	Those 	included in
the 	proposed unit perform 	some 	duties 	that 	are 	also 	routinely
performed by 	employees 	not 	included 	in the 	severance petition.
Interaction among 	employees 	in 	the proposed unit 	also
varies. 	Generally, 	there is greater interaction between job
classifications 	within the 	proposed 	unit 	than between 	included
55

and excluded classifications. 	Yet, 	situations 	do arise where
employees 	included 	in the proposed unit work alongside 	employees
excluded 	from the 	severance petition.
The proposed unit would contain some, 	but not all, 	of 	the
peace officers 	and cadets who are currently a part of 	Unit 	7.
Training practices 	for 	the 	various 	classifications 	within the
proposed unit 	vary, 	with 	some 	classifications 	being 	required 	to
complete 	the 	POST 	(Commission on Peace Officers 	Standards 	and
Training) 	basic training, 	and others being 	subject to a 	less
intensive 	training program. 	Training 	for 	classifications within
Unit 	7 	but outside the proposed unit also varies, 	with 	some
classifications 	subject 	to 	specialized 	POST 	training 	requirements
and others 	subject to the POST basic. 	Many peace officers, 	both
in and out of the proposed unit, 	are 	eligible 	for physical
fitness 	incentive pay, 	and all peace officers 	are 	eligible 	for
peace officer retirement. 	Many employees, 	both in and outside
the proposed unit, 	use 	standard peace officer protective
equipment.
In applying the 	criteria 	of 	Government 	Code 	section 	352l(b)
to 	the 	factual 	record before him, 	the ALJ reached the 	following
conclusions. 	While 	employees within the proposed unit 	share 	a
strong 	community of 	interest among themselves, 	these 	similarities
are 	not 	limited 	solely to 	those 	included within the petition 	for
severance, 	but are 	shared with other Unit 	7 	employees. 	The two
major dissimilarities 	between 	those 	sought 	to be 	included 	and
excluded 	from the proposed unit are that, 	generally, 	those
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included 	in the 	severance petition wear uniforms 	and 	they patrol
a 	set geographical 	region. 	The many exceptions 	to 	this 	general
rule, 	however, 	blur these dissimilarities as a notable
distinction between 	those 	included 	in 	and 	excluded 	from 	the
proposed 	unit.
Significantly, 	the bargaining history 	indicates 	that 	the
interests 	of 	the 	classifications 	sought 	to be 	severed have not
been trampled upon or ignored by CAUSE. 	In fact, 	the 	evidence
suggests 	that 	a 	stable bargaining 	relationship 	exists 	between
CAUSE 	and 	DPA.
While 	the ALJ declined to 	find that 	the 	granting of 	a
severance petition would 	lessen 	DPA's 	efficiency of 	operations,
he did conclude 	that 	a 	severance 	in this 	case 	could 	lead to 	the
proliferation of 	units 	that 	the 	Board 	sought to 	avoid when 	it
created Unit 	7.
Regarding 	the 	applicability 	of 	Government 	Code 	section
3521.7, 	the ALJ 	concluded that 	even assuming arguendo 	that 	PERB
has 	a duty to create a law enforcement unit, 	the proposed unit 	is
flawed because 	it 	excludes 	large numbers 	of 	classifications
having 	an almost 	identical 	community of 	interest 	to 	those
included 	in the proposed unit.
During 	the 	hearing, 	both CSPOA and 	DPA 	contended 	that 	should
the ALJ 	find the proposed unit 	inappropriate 	for 	severance, 	he
could 	fashion what 	he believed to 	be 	an appropriate 	unit based
upon the 	evidence before him. 	CAUSE 	took the position that 	PERB
does 	not have the 	authority to 	sever 	from Unit 	7 	classes 	not
7
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included 	in the petition 	for 	severance. 	After accepting briefs
on the 	issue, 	the ALJ held that his 	authority was 	limited to
granting 	or dismissing the 	severance petition before him, 	and did
not 	extend to 	severing a unit of 	a different configuration.
EXCEPTIONS
In its 	exceptions, 	CSPOA asserts 	that the ALJ had the
authority 	and was 	duty-bound to determine 	if 	a 	unit 	other 	than
the 	unit proposed 	in the 	severance 	petition was 	appropriate 	for
severance. 	Secondly, 	CSPOA excepts 	to the ALJ's application of
Sacramento City Unified School 	District 	(1977) 	EERB3 Decision No.
30 	on the ground that the case holds 	that a 	separate unit 	is 	not
warranted merely because 	a 	group 	shares 	a 	community 	of 	interest
when it 	is part of a 	larger group with 	similar 	interests. 	CSPOA
contends 	that 	other 	factors 	differentiate 	the proposed unit 	from
the 	excluded 	classifications 	besides 	the 	internal 	community 	of
interest. 	Thirdly, 	CSPOA excepts to the ALJ's reliance, 	as one
reason for denying the 	severance petition, 	upon his 	conclusion
that 	the 	granting of 	the petition 	could 	lead to 	a proliferation
of 	units.4 Finally, 	CSPOA excepts 	to various 	factual 	findings
. . .
3Prior to January 	1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.
4The 	Board must 	look to 	the 	statutory 	criteria 	for
determining an appropriate unit as 	set 	forth in 	section 	3 521 	and
consider:
The 	impact 	on the meet and confer
relationship 	created 	by 	fragmentation 	of
employees 	or any proliferation of 	units 	among
the 	employees 	of the 	employer.
(Section 	3521(b)(5).)
8

drawn upon by the ALJ 	in making 	his 	comparisons 	between the
various 	classifications 	included 	in 	and 	excluded 	from the
proposed unit.5
Based upon the 	evidence 	of 	a 	stable bargaining 	relationship 	that
has 	existed 	since 	creation of 	the unit 	(see discussion below),
the ALJ 	could 	reasonably 	conclude 	that 	the 	granting 	of 	the
severance petition would 	result 	in 	an undesirable 	fragmentation
of Unit 	7.
DISCUSSION
Scope 	of 	PERB's Authority 	in 	Ruling on Severance 	Petitions
CSPOA advances 	two 	theories 	in 	support of 	its 	contention
that 	PERB has 	the 	authority to 	reconfigure 	the petitioned 	for
unit. 	One of 	those theories 	is 	grounded 	in general 	language
found within our 	statutes, 	regulations 	and 	case 	law pertaining 	to
initial unit determinations. 	Thus, 	under section 3541.3, 	CSPOA
argues, 	"the Board 	shall have all 	of 	the 	following powers 	and
duties: 	(a) 	To determine in disputed cases, 	or otherwise
approve, 	appropriate units. 	. . . " 	CSPOA contends 	that 	the word
"determine" 	should be broadly 	interpreted to 	confer 	authority 	on
PERB 	to 	go beyond 	the 	severance petition 	in deciding whether 	an
appropriate 	unit 	should be 	severed 	from the 	existing 	one. 	We
disagree.
When 	exercising 	the powers 	and duties 	conferred by 	section
3541.3 	in a 	severance context, 	this 	Board must 	consider the
constraints 	of 	our regulations 	specifically governing 	severance.
The 	regulations pertaining to 	severance petitions 	require 	that:
5As we 	find the ALJ's 	findings 	of 	fact 	to be 	free 	from
prejudicial 	error, 	we reject CSPOA's 	exceptions 	thereto.
99

(1) 	A 	severance petition can only be 	filed by an employee
organization 	(Reg. 	4O2OO(a));6 (2) 	a severance petition must be
accompanied by 	sufficient proof 	of 	support 	of 	employees 	in 	the
classifications 	sought to be severed 	(Reg. 	40200(b)); 	(3) 	only
the party 	filing a petition can 	seek to amend, 	modify or withdraw
it 	(Regs. 	40240, 	40250); 	and 	(4) 	any amendments seeking to add
job classifications 	to the petition after 	issuance 	of 	a 	notice 	of
hearing must 	be 	supported by 	further 	evidence 	of 	proof 	of
support. 	Read in light of the 	severance regulations, 	the word
"determine" 	should be 	interpreted to mean that 	PERB has 	the
authority to make a decision in a 	case where a proposed 	severance
is 	disputed.
Furthermore, 	Regulation 40260(b)(2) 	provides that:
(b) 	A petition 	shall 	be dismissed 	in part 	or
in whole whenever the 	Board determines
that:
(2) 	There 	is 	currently in effect a
memorandum 	of 	understanding between 	the
employer 	and 	another 	employee
organization 	recognized 	or 	certified 	as
the 	exclusive 	representative of 	any
employees 	covered by 	the 	severance
petition, 	unless the petition is 	filed
less 	than 	120 days but more than 90 days
prior to 	the expiration date of 	such
memorandum or the 	end 	of 	the 	third year
of such memorandum; 	provided that, 	if
such memorandum has 	been 	in 	effect 	for
three years 	or more, 	there 	shall be no
restriction as 	to 	time 	of 	filing the
petition; 	o r 	. . . .
6PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
10

The purpose 	of 	the 	contract bar contained 	in Regulation
42060(b)(2) 	is 	to 	foster 	stability 	in the employer-union
relationship 	and 	to 	allow the 	exclusive 	representative 	to 	conduct
its 	affairs 	during 	the 	insulated period 	"free 	from the 	'threat 	of
overhanging rivalry and uncertainty.'" 	(See 	1 Morris, 	The
Developing Labor Law (2d ed. 	1983) 	pp. 	361, 	3 74.) 	That purpose
would be 	frustrated 	if 	classifications 	not 	included 	in 	the
original 	severance petition 	filed within the window period were
later subject to 	severance by PERB. 	Additionally, 	nonexclusive
representatives 	would be 	discouraged 	from 	filing 	valid 	severance
requests 	and 	settlement 	of 	such 	requests 	would be 	deterred 	as 	the
parties would 	fear an unknown result at the hands 	of PERB. 	(See
Service Employees 	International 	Union. 	Local 614, AFL-CIO v.
Solano Community College District 	(1981) 	PERB Decision No. 	166.)
CSPOA also 	relies 	on Regulation 	40260(a) 	as 	authority 	for
its 	argument that the PERB regulations 	do not 	limit 	the 	Board to
approval 	or denial 	of the 	severance petition. 	Regulation
40260(a) provides:
Whenever a 	severance petition 	is 	filed with
the Board, 	the Board 	shall 	investigate and,
where appropriate, 	conduct a hearing and/or a
representation 	election or 	take 	such 	other
action as 	deemed necessary 	to decide 	the
questions 	raised by the petition.
CSPOA's 	interpretation of 	this 	subsection of 	the regulation
is 	overbroad, 	especially when it 	is 	read 	in the context of 	the
entire 	regulatory 	scheme 	relating 	to 	severance. 	To 	adopt 	CSPOA's
interpretation of 	Regulation 	40260(a) 	would render the 	rest 	of
the 	regulatory 	scheme 	meaningless.
11

Neither 	is 	the 	case 	law cited by CSPOA particularly-
supportive of 	its 	view of PERB's 	authority. 	All 	of 	the 	PERB
cases 	cited by CSPOA pertain to 	initial 	unit determinations.
(Centinela Valley 	Union High 	School 	District 	(1978) 	PERB 	Decision
No. 	62; 	University of California 	(HERRA Unit Determination)
proceedings: 	(1980) 	PERB Order No. 	Ad-101-H, 	(1982) 	PERB
Decision No. 	270-H, 	(1982) 	PERB Decision No. 	246-H.) 	Severance
proceedings 	are 	obviously distinguishable 	from unit 	determination
proceedings. 	In unit determination proceedings, 	PERB clearly has
the power to determine an appropriate unit, 	and the unit
ultimately 	decided 	upon 	may be 	different 	from 	the 	unit 	proposed
by the parties. 	In contrast, 	in a 	severance proceeding, 	a unit
that has 	previously been deemed appropriate by this 	Board 	is 	in
place. 	Thus, 	the regulations 	governing 	severance were designed
to balance 	the 	interests 	of the parties 	to 	an existing
relationship.
PERB has 	previously recognized that 	the 	focus 	of 	its 	unit
determination proceedings 	may 	shift, 	depending upon the
background of 	the unit 	in question 	in terms 	of both 	its 	creation
and 	subsequent bargaining history. 	Thus, 	in Redondo Beach City
School District 	(1980) 	PERB Decision No. 	114 the Board, 	in
granting a 	severance petition, 	noted:
. 	. 	. 	The negotiating history is quite
short; 	the Association had represented the
unit 	for 	less 	than two years when the
Federation 	filed 	its 	request 	for recognition
. 	. 	. 	. 	The unit was the result of a
voluntary 	recognition 	and was 	never 	reviewed
or approved by the Board or its agents. 	. 	. 	.
(P. 	10.)
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In Redondo 	Beach, 	the district had refused to voluntarily
recognize 	the 	association absent 	the 	inclusion of 	the disputed
class. 	After two years, 	the association formally requested
deletion of 	the 	class. 	The disputed class 	had not been 	involved
in negotiations 	and while 	the 	record did not 	evince 	overt
conflict, 	neither was there cooperation. 	The Board held:
It has been PERB's policy 	to 	encourage
voluntary recognitions 	and 	settlements 	among
the parties 	subject to 	its 	jurisdiction. 	The
Board also has 	a 	strong 	interest 	in 	labor
relations 	stability. 	Therefore we are 	loathe
to upset working relationships 	and will 	not
disrupt 	existing 	units 	by 	granting 	severance
petitions lightly. 	In this case, 	however,
the negotiations 	history does 	little to
support 	a 	finding 	that 	stability would be
enhanced by maintaining the 	existing unit.
(P. 	11.)
In Livermore Valley 	Joint 	Unified 	School 	District 	(1981)
PERB Decision No. 	165, 	a severance case in which this Board
specifically 	recognized 	both 	the 	similarities 	and 	differences
between 	the 	initial 	unit 	determination and 	severance proceedings,
the 	Board 	stated:
The 	severance 	setting 	is 	factually different
from an 	initial 	unit 	determination because
negotiating 	history 	must 	be 	considered when
evaluating a severance request. 	Such a
request, 	however, 	is governed by the criteria
of section 3545(a) 	of the EERA, 	just as 	is an
initial 	determination. 	Negotiating history,
as one of these criteria, 	is an important
factor, 	and a 	stable negotiating relationship
will not be 	lightly disturbed. 	Nonetheless,
it 	is 	but one of 	several 	criteria 	looked to
by the Board. 	. 	. 	.7
(Pp. 	5-6.)
7The 	criteria 	for determining an appropriate 	unit under 	the
Dills Act are 	found in section 3521(b).
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While 	the 	statutory 	criteria 	for unit determinations 	may be
the 	same 	in initial unit determinations 	and 	later 	severance
proceedings, 	just as 	the weighing of those 	criteria change 	in
light of the 	intervening history of the parties, 	so must the
Board's 	own role 	in the process. 	PERB's 	case 	law simply does 	not
support 	CSPOA's 	argument that 	the 	Board has 	carte blanche 	to
carve up an existing unit and, 	without regard to the 	interests 	of
the 	affected 	employees 	and their exclusive representative, 	create
a 	unit 	different 	from that proposed 	in a 	severance petition.8 In
addition, 	the regulations discussed above, 	which require that a
severance petition be 	filed within the window period by 	an
employee 	organization with proof 	of 	support 	among 	the 	employees
affected by the 	severance, 	compel 	rejection of CSPOA's 	broad
interpretation of 	Livermore.
Another 	theory proffered by CSPOA 	in 	support 	of 	its 	argument
that 	PERB does 	have the 	authority to reconfigure 	the proposed
unit relies upon section 3 521.7, 	which provides:
The board may, 	in accordance with reasonable
standards, 	designate positions or classes of
positions 	which have 	duties 	consisting
primarily of the 	enforcement of 	state 	laws.
Employees 	so designated 	shall 	not be denied
88Significantly, 	PERB's 	regulations do allow for the
amendment of 	a 	severance petition, 	both before and after the
issuance of a notice of hearing, 	to add 	job classifications 	to 	or
remove 	job classifications 	from a proposed unit. 	(Reg. 	40240.)
In fact, 	in the 	instant case, 	petitioner made a motion during the
hearing 	to 	file 	a 	fifth amended petition wherein 	four 	classes
were 	deleted 	from the unit proposed 	in the 	fourth 	amended
petition. 	The ALJ, 	relying on the 	criteria of Regulation
40240(c), 	granted the fifth amended petition. 	The fact that a
severance petition may be 	amended during a 	hearing provides 	for
some 	flexibility based upon the 	evidence produced 	at 	the 	hearing
and 	should avoid, 	in most cases, 	the necessity of dismissing a
severance petition based 	solely on the 	erroneous 	inclusion or
exclusion of 	a 	few positions 	or classifications.
14

the right to be 	in a unit 	composed 	solely of
such employees.
CSPOA argues 	that 	this 	statute 	gives 	the Board the
discretion to designate 	classes 	of positions with duties
consisting primarily of 	the 	enforcement of 	state 	laws 	and that,
if 	the Board exercises 	its 	discretion in this 	regard, 	the
employees 	so designated have a right to be 	in their own unit. 	We
agree that, 	under section 3521.7, 	the Board does have the
authority to 	apply 	reasonable 	standards 	to 	designate 	"law
enforcement" 	positions and that, 	once designated, 	these classes
have 	the right 	to be placed 	in their own unit, 	and 	could request
severance 	on that 	ground.
At 	the 	time of 	the 	initial 	unit determination 	fin The 	Matter
Of: 	Unit Determination for the State of California 	(1979) 	PERB
Decision No. 	110-S), 	this Board declined to designate the
positions 	or 	classes 	of positions 	which have 	"duties 	consisting
primarily of 	the 	enforcement 	of 	state 	laws." 	The Board held that
the 	general 	unit determination 	criteria 	found 	in 	section 	3521
were 	sufficient to make an appropriate unit determination. 	The
Board 	expressly 	reserved 	its 	jurisdiction to make 	such 	a
determination at a 	later date. 	Subsequently, 	an attorney general
opinion ruled that, 	although PERB has 	the discretion to designate
these positions, 	until PERB 	exercises 	that discretion no rights
are conferred by section 3521.7. 	(61 Ops.Cal.Atty.Gen. 	405, 	410
(1978).)
We 	decline 	to 	exercise 	our 	statutory discretion 	in this 	case
for two reasons. 	First, 	we 	find that the bargaining history does
not 	justify 	a 	departure 	from our 	initial 	unit 	determination.
15

CSPOA 	failed 	to present 	convincing 	evidence 	that 	the 	employees 	to
be 	included 	in the proposed unit have 	not 	been adequately
represented during negotiations. 	In fact, 	the 	subunit of
uniformed employees, 	which includes, 	among other employees, 	all
of 	the 	employees 	in the 	severance petition, 	did participate 	in
bargaining. 	Neither did CSPOA present 	evidence 	that 	the
interests 	of 	the 	employees 	included 	in the 	severance petition
were trampled upon or ignored. 	In fact, 	the ALJ concluded, 	and
we 	agree, 	that 	the bargaining relationship between DPA and CAUSE
has 	been 	stable 	and has produced 	successful 	agreements 	for Unit 	7
over the 	last 	several years. 	Stability 	in bargaining and 	lack of
dissension have been recognized by 	PERB 	as 	important 	factors 	in
unit determinations 	in the 	severance 	context. 	(Livermore Valley
Joint Unified School District, 	supra. 	PERB Decision No. 	165, 	pp.
6-7; 	Redondo Beach City School District, 	supra. 	PERB Decision No.
114.)9
Second, 	even if we were to 	find that a 	severance of 	some
nature would be 	appropriate, 	we 	agree with the ALJ that 	the
proposed 	severance 	is 	not 	appropriate because 	it 	excludes 	large
numbers 	of 	classifications 	that we 	find would 	fit within 	the
statutory definition 	of 	"having duties 	consisting primarily 	of
the enforcement of 	state laws." 	Furthermore, 	we do not believe
99The 	National 	Labor Relations 	Board has 	also 	been 	reluctant
to 	disturb 	stable 	bargaining 	relationships 	in the 	severance
context. 	(Mallinckrodt 	Chemical Works 	(1966) 	162 NLRB 	387 	[64
LRRM 1011, 	1014]. 	See generally, 	1 Morris, 	The Developing Labor
Law 	(2d ed. 	1983) 	pp. 	430-431).)
16

that 	section 	3521.7 	requires 	us 	to 	reconfigure the 	unit proposed
in a 	severance petition.10	10
Application 	of 	Unit 	Determination Criteria
CSPOA excepts 	to the ALJ's 	reliance 	on the 	case 	of
Sacramento City Unified School 	District, 	supraf 	EERB Decision
No. 	30. 	In that decision, 	the issue before the Board was whether
skilled 	craft 	employees 	should be 	allowed a 	separate 	unit 	or be
included within a 	larger operations-support 	services 	unit. 	The
Board held that 	a 	separate unit 	is 	not warranted merely because 	a
group of 	employees 	has 	a 	community of 	interest when that 	group
forms 	only part of 	a 	larger group 	that 	shares 	a 	community of
interest.
CSPOA argues that, 	in the instant case, 	there are additional
factors 	which differentiate 	the proposed unit 	from the 	excluded
classes 	apart 	from their 	internal 	community of 	interest 	(e.g.,
bargaining history, 	interrelationships 	between included 	classes,
job function, 	equipment). 	The ALJ found that, 	although the
employees within the proposed 	severance 	unit may 	share 	a
community of 	interest among themselves, 	their 	commonality of
skills, 	working conditions, 	duties, 	and training are also shared,
to varying degrees with other Unit 	7 	employees. 	The ALJ also
10We do not decide, 	at this time, 	as to the most appropriate
procedure or context 	for the 	exercise 	of 	the Board's 	discretion
under 	section 	3 521.7. 	The Board could exercise 	its 	authority 	in
a 	severance 	context 	should 	the 	Board 	find 	that 	the
classifications 	in the proposed unit 	include all 	"law
enforcement" 	positions. 	Alternatively, 	employees or employee
organizations 	could petition the 	Board to 	adopt 	a 	regulation 	to
implement the 	statute. 	A 	severance 	or unit modification petition
could 	then be 	fashioned 	and 	decided 	in 	accordance with 	the
regulation. 	In any event, 	the record before us presents us with
no reason to 	exercise our discretion in this 	case.
17

made 	factual 	findings 	regarding 	interrelationships 	between
classes, 	job function, 	equipment and, 	perhaps most importantly,
bargaining history. 	CSPOA's 	argument 	is 	based on 	its 	own
interpretation of the evidence and, 	as 	the 	factual 	findings 	of
the ALJ 	on the 	same 	issues 	are 	supported by the 	record, 	CSPOA's
argument 	is 	rejected.
ORDER
Based upon the 	foregoing and the 	entire record 	in this 	case,
it 	is 	ORDERED 	that 	the 	severance petition 	filed by the California
State 	Peace Officers Association is 	DISMISSED.
Member Porter 	joined 	in this 	Decision.
Member Craib's 	concurrence begins 	on page 	19.
18

Member Craib, 	concurring: 	I 	agree with my colleagues 	that
we 	should 	affirm 	the 	proposed 	decision 	and dismiss 	the 	severance
petition 	filed by the California 	State 	Peace Officers 	Association
(CSPOA); 	however, 	I write separately because I disagree with the
majority's 	analysis 	concerning 	our 	authority to 	fashion an
appropriate 	unit 	other than that 	requested 	in the 	severance
petition.
The general authority in section 3541.3, 	subdivision 	(a)1
gives 	the Public 	Employment Relations 	Board 	(PERB or Board) 	the
authority to determine 	"an appropriate unit" 	in disputed 	cases.2
Furthermore, 	the 	specific 	language in section 3 521.7 gives the
Board 	the 	authority 	to 	establish a 	unit 	composed 	solely 	of
employees 	engaged 	in the 	enforcement of 	state 	laws.3
1 Section 3 541.3 	is part of the Educational Employment
Relations Act 	(EERA). 	EERA is 	codified at Government Code
section 	3540 	et 	seq. 	Unless otherwise indicated, 	all 	statutory
references herein are to the Government Code. 	Section 3541.3 	is
incorporated by reference 	in the Ralph C. 	Dills Act. 	(Section
3513, 	subd. 	(g).)
2Section 3541.3, 	subdivision 	(a) 	provides that the Board
shall 	have 	the power
[t]o determine in disputed cases, 	or
otherwise approve, 	appropriate units.
3Section 3521.7 provides:
The board may, 	in accordance with reasonable
standards, 	designate positions or classes of
positions 	which have duties 	consisting
primarily of the 	enforcement of 	state 	laws.
Employees 	so designated 	shall 	not be denied
the right 	to be 	in a unit 	composed 	solely of
such employees.
19

The majority takes 	the position that the 	Board 	is
constrained by the 	language 	in PERB Regulations 	40200, 	40240 	and
4O25O4 from modifying the 	specific 	unit petitioned 	for, 	in that
only 	the petitioner may 	alter the proposed 	severed unit. 	While
we 	are 	certainly 	required to 	act 	in accordance with our
regulations, 	I 	believe that the analysis 	of the regulations
pertaining to 	severance petitions 	is 	much too restrictive.
Rather 	than 	restricting 	the 	Board 	from 	"modifying" 	a petition to
determine an appropriate unit, 	I 	believe that the regulations 	are
more 	appropriately 	read 	to 	restrict 	the 	incumbent 	exclusive
representative 	and 	the 	employer 	from 	altering 	the 	proposed 	unit
in the 	severance petition. 	I would, 	therefore, 	agree with CSPOA
that Regulation 40260, 	subdivision 	(b), 	which directs the Board
to 	"take 	such 	other action as 	deemed necessary to 	decide 	the
questions 	raised by the 	[severance] 	petition," 	read 	in
conjunction with 	section 3541.3, 	authorizes 	the Board to
4 PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq. 	Regulation 40200 provides,
in pertinent part:
(a) 	An employee organization may 	file a
petition to become 	the 	exclusive
representative 	of 	an appropriate 	unit
consisting of 	a 	group of 	employees who 	are
already members 	of 	a 	larger 	established unit
represented by 	an 	incumbent 	exclusive
representative. . . .
(b) 	the petition shall be accompanied by
proof 	of majority 	support 	in the unit 	claimed
to be appropriate. 	. 	. 	.
Regulations 	40240 	and 40250 provide 	for amendment, 	modification
and withdrawal 	of 	the 	severance petition by the 	employee
organization which filed it, 	subject to certain conditions.
20

determine 	an appropriate unit 	different 	from that 	specified 	in
the petition.
Even though the Board has 	the 	authority to determine 	a 	unit
different 	from that petitioned for, 	as 	a policy matter, 	that
authority 	should be 	exercised with discretion. 	Because 	of 	this,
the 	interest 	of 	the 	incumbent 	exclusive 	representative 	and 	the
employer 	in maintaining a 	stable bargaining relationship, 	as well
as 	the 	incumbent's 	right 	to be 	free 	from uncertainty during 	the
contract period, 	I 	would propose 	that the 	Board only alter the
unit 	configuration 	if the unit petitioned 	for 	is 	over-inclusive.
Thus, 	if 	the hearing officer determined that the unit petitioned
for was 	inappropriate because 	it 	included 	classifications 	which,
for example, 	did not 	share a 	community of 	interest with other
classifications, 	he or 	she 	could 	fashion a 	smaller appropriate
unit. 	The 	implementation of 	the hearing officer's 	determination
would, 	of course, 	be subject to the willingness of the
petitioning representative to represent the 	smaller unit. 	If .
additional proof of 	support were necessary, 	it would have to be
provided prior 	to 	voluntary 	recognition 	or 	a 	representation
election.
Since 	the 	administrative 	law 	judge 	determined 	that 	the
petitioned 	for unit was 	both over and under-inclusive, 	and 	I
agree with those 	findings, 	I 	concur with my colleagues 	that 	the
petition 	should 	be 	dismissed.
21

STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Employer,
and
CALIFORNIA 	STATE 	PEACE
OFFICERS 	ASSOCIATION,
Petitioner,
and
CALIFORNIA 	UNION 	OF 	SAFETY
EMPLOYEES,
Exclusive 	Representative.
Representation
Case No. 	S-S-115-S
PROPOSED 	DECISION
(3/15/83)
Appearances: 	Beeson, 	Tayer, 	Silbert & Bodine, 	by Neil Bodine
and 	John Provost 	for 	California 	State 	Peace Officers
Association; 	Loren E. 	McMaster 	for California Union of 	Safety
Employees; 	and Tamara J. 	Pierson 	for 	the 	State of 	California
(Department of Personnel Administration).
Before James W. 	Tamm, 	Administrative Law Judge
PROCEDURAL 	HISTORY
On March 2, 	1987, 	California 	State 	Peace Officers
Association 	(CSPOA or 	petitioner) 	filed 	a 	petition 	seeking 	to
sever 	a 	group 	of 	employees 	from the 	existing 	state bargaining
Unit No. 	7 	(Protective Services 	and Public Safety).11 The
1 The 	Protective 	Services 	and 	Public 	Safety unit 	is
composed 	of 	approximately 	270 	classifications 	and 	includes
approximately 	5,700 	employees 	who 	provide 	various 	regulatory,
law enforcement, 	and 	public 	safety and 	protection 	services.
See Unit 	Determination 	for 	the 	State of 	California 	(1979) 	PERB
Decision No. 	110-S.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
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______________ )

proof 	of 	support was 	found 	to 	be 	sufficient 	by 	the 	Sacramento
Regional 	Director 	of 	the 	Public Employment 	Relations 	Board
(PERB or 	Board). 	Both the State of California 	(Department 	of
Personnel Administration) 	(DPA) 	and the exclusive
representative of Unit 	7, 	the California Union of 	Safety
Employees 	(CAUSE), 	opposed the petition. 	A settlement
conference was held on May 22, 	1987 but was unsuccessful. 	The
petition was 	amended 	numerous 	times 	throughout 	the
proceedings.
. ....'. . . .
2
When CSPOA 	amended 	its 	petition 	to 	delete 	certain 	job
classes 	from the petition, 	CAUSE changed 	its 	position to 	a
neutral 	one, 	neither opposing 	nor 	supporting 	the 	petition 	as
amended. 	DPA 	remained 	opposed 	to 	the petition.
Between September 29, 	1987 and December 23, 	1987, 	nine days
of 	hearing were conducted. 	A transcript was 	prepared, 	briefs
2 The 	fifth 	and 	final 	amended 	petition 	filed 	on
December 	22, 	1987 	included 	the 	following 	job classifications:
Fish 	& Game Warden 	Cadet
Fish & Game Warden, 	Dept, 	of Fish & Game
Lieutenant, 	Fish & Game Patrol 	Boat
Lifeguard
Hospital 	Peace Officer 	I
Sergeant, OCSP
Sergeant, 	State Fair Police
State 	Fair 	Police Officer,
State Fair Police Office, 	Seasonal
State 	Security Officer
State 	Park Cadet 	(Lifeguard)
State 	Park Cadet 	(Ranger)
State Park Ranger 	I
State 	Police Officer
State 	Police Officer 	Cadet 	(Female)
State 	Police Officer 	Cadet 	(Male)
Warden-Pilot, 	Dept, 	of Fish & Game
2

filed 	and 	the 	case was 	submitted 	for 	decision 	on 	February 22,
1988.
As 	discussed below, 	this 	decision holds 	that 	employees
within 	the 	proposed 	unit 	share 	a 	community of 	interest with
employees 	excluded 	from the 	proposed unit, 	that 	other 	law
enforcement 	personnel 	are excluded 	from the proposed unit, 	that
a 	stable bargaining 	relationship exists 	and that, 	therefore,
there 	is 	insufficient 	justification 	to 	establish 	the 	proposed
unit.
FINDINGS 	OF 	FACT
Working 	Conditions
All 	the 	employees 	sought 	in the 	severance petition 	are
either 	peace 	officers 	or 	cadets who 	are 	in training 	to 	become
peace officers; 	however, 	the proposed unit does not 	include all
peace officers 	in Unit 	7. 	There are, 	within the existing
Protective Services 	and Public 	Safety unit, 	24 	additional 	job
classifications, 	with peace officer 	status, 	which are excluded
from the 	severance 	petition.
While 	there 	are 	variations 	between 	job classes 	included 	in
the 	petition, 	generally those 	sought 	are engaged 	in high
visibility patrol 	duties within 	set 	geographical 	areas.3 The
employees 	spend 	the majority of 	their 	time engaging 	in 	law
3This 	is, 	typically, 	motor patrol in marked vehicles.
However, 	patrols 	are also made on horse, 	in off-terrain
vehicles, 	patrol boats, 	fixed-winged aircrafts, 	helicopters,
and 	snow-mobiles, 	and on skis, 	on bicycles 	and on foot.
33

enforcement duties 	such 	as 	issuing 	citations, 	traffic 	and crowd
control, 	serving 	arrest 	and search warrants, 	making 	arrests,
interrogating 	suspects, 	conducting crime 	scene 	investigations,
gathering 	evidence, 	guarding 	dignitaries 	and/or 	individuals 	in
custody, 	conferring with other 	law enforcement 	personnel 	and
district 	attorneys 	and 	testifying 	in court.
Certain exceptions 	should, 	however, 	be noted. 	For example,
large 	numbers 	of 	state police 	and 	some 	state 	fair 	police 	and
game wardens 	do 	not 	engage 	in 	routine motor 	patrol 	and do 	not
usually provide 	traffic 	control 	or 	issue 	traffic 	or 	parking
citations. 	Many employees, 	such as wardens, 	hospital peace
officers 	and 	rangers 	engage 	in traffic 	control 	only 	in
emergency situations, 	such 	as when an accident occurs 	in their
presence. 	Crowd control 	is 	also 	done 	on 	an emergency basis
(e.g., 	a visit by the Pope).
Many of 	the 	typical 	law enforcement 	duties 	performed 	by
employees 	included 	in 	the 	proposed 	severance unit 	are 	also
routinely performed by other 	employees 	in Unit 	7, 	who 	are 	not
included 	in the 	severance petition. 	For 	instance, 	arson and
bomb 	investigators, 	lottery agents 	and 	special 	agents 	of 	the
Department of Justice 	(DOJ) 	make 	arrests, 	serve 	arrest 	and
search warrants, 	gather evidence, 	interrogate suspects, 	guard
individuals 	in custody, 	conduct crime 	investigations, 	confer
with 	other 	law enforcement 	personnel 	and 	district 	attorneys,
and 	testify 	in court. 	They may 	also 	be called upon 	to 	guard
4

dignitaries 	and engage 	in crowd 	control.
All 	peace officers 	in Unit 	7 	are eligible 	for 	the peace
officer/firefighter 	retirement 	program. 	Many employees, 	both
in 	and outside 	the 	proposed unit 	are 	also 	eligible 	for 	a
physical 	fitness 	incentive 	pay program.
While 	there 	is 	slight 	variation 	in practices 	among
departments, 	employees 	included 	in the proposed unit use
standard peace officer 	protective 	equipment. 	This 	includes
guns4, 	badges, mace, 	handcuffs, 	batons, 	and Sam Brown belts.
Most 	are 	issued 	soft body 	armor 	and have 	riot 	helmets
available. 	All 	have 	access 	to handheld 	as well 	as vehicle
radios. 	Although the 	above equipment 	is 	common to 	the
petitioned-for unit, 	it 	is 	also 	standard 	issue to other peace
officers within Unit 	7 	but 	excluded 	from the 	petition.
There 	is 	a wide variety of 	training 	requirements 	not 	only
within 	the 	proposed 	severance unit 	but within other Unit 	7
classes 	as well. 	Some classes within the proposed unit, 	such
as state police officers, 	park rangers, 	lifeguards, 	game
wardens 	and 	state 	fair 	police 	officers 	must 	complete 	the
POST
. .
5 basic 	training 	consisting 	of 	a minimum of 	520 	hours 	of
4 Hospital 	peace officers 	are 	not 	allowed 	to 	carry guns 	on
state 	hospital 	grounds. 	Local 	police 	officers 	entering 	the
premises must 	also 	remove 	their guns. 	This 	policy 	is 	similar
to policies 	established 	in many 	local 	jails 	and prisons.
5 POST 	is 	the Commission 	on Peace Officers 	Standards 	and
Training.
55

training. 	Others, 	such 	as 	state 	security officers 	and hospital
peace officers, 	must complete only a 40-hour 	training 	course,
although they are 	offered 	the opportunity to 	take 	the POST
basic training. 	Employees 	in classes 	outside 	the proposed
unit, 	such as DOJ special 	agents, 	lottery agents, 	and arson and
bomb investigators, 	are 	required to 	take the POST specialized
investigators 	course consisting 	of 	a minimum of 	220 	hours 	of
training. 	Law enforcement 	coordinators within the Office 	of
Emergency Services 	are 	currently 	required 	to 	complete 	the 	POST
basic 	520-hour course, 	although employees 	hired prior 	to 	a
certain date 	are 	only 	required 	to 	complete 	a 	shorter 	POST
specialized 	course.
6
Most employees, 	although not all, 	within the proposed
severance unit wear 	easily 	identifiable uniforms. 	A
significant exception 	is 	in the state police, 	where
approximately 	one 	third 	of 	the 	officers 	and 	sergeants 	wear
civilian clothes while performing 	duties 	as 	detectives,
investigators 	or 	in threat 	analysis 	or 	dignitary protection
programs. 	There 	is 	also 	a 	special unit of 	the 	state 	fair
police, 	which 	is 	formed during major 	events 	and consists 	of
plain clothes 	investigators. 	A special unit of 	plain clothes
game wardens 	also exists 	to 	perform 	investigations 	and 	"sting"
6However, 	many employees 	in 	those 	classes 	have 	already
completed 	the 	POST basic 	course.
66

operations. 	The uniforms 	of 	lifeguards vary, 	depending upon
their 	specific 	assignment, 	from a 	simple T-shirt 	and bathing
suit 	to 	a uniform similar 	to 	a park 	ranger's.
Other 	employees 	outside 	the 	proposed 	severance unit, 	such
as 	firefighters, 	seasonal 	lifeguards, 	or museum security
officers, 	also wear uniforms. 	Many nonuniformed peace officers
wear 	raid 	jackets 	during 	large 	scale police 	actions 	so 	that
they are easily 	recognizable 	as 	police officers.
Interaction 	among 	employees 	in 	the 	proposed 	severance 	unit
varies; 	however, 	there is generally greater 	interaction among
job classes within 	the 	proposed unit 	than between 	included 	and
excluded classes. 	For example, 	lifeguards 	and park rangers
often work 	together 	because 	they 	sometimes 	share 	common
jurisdiction within 	state parks. 	Park 	rangers 	and 	fish and
game wardens may 	interact 	for 	the 	same 	reasons. 	Hospital 	peace
officers 	have 	some 	limited 	contact with 	rangers 	and/or 	state
police when 	a 	hospital 	facility 	is 	contiguous with 	a 	state 	park
(Yountville 	and 	Sonoma) 	or 	houses 	California 	Conservation
Corp's 	barracks 	(Agnews). 	State security officers 	are housed
in 	the 	same 	office 	and work hand-in-hand with 	state 	police 	in
protecting 	state property. 	Game wardens 	utilize 	state 	police
dispatch centers.
There are occasions, 	however, 	when the individuals 	included
in 	the 	proposed unit work with other Unit 	7 	employees 	excluded
from the petition. 	For 	example, 	DOJ 	special 	agents
7
7

occasionally 	interact with 	state 	police 	and 	state 	security
officers when 	the 	latter 	are 	sued 	civilly or 	are 	criminally
accused with 	respect 	to 	actions 	performed 	in 	the 	course 	and
scope 	of 	their 	duties. 	Park rangers may 	interact with DOJ
agents 	as 	part 	of 	the CAMP marijuana 	eradication program.
State 	police 	could 	interact with 	arson 	and 	bomb 	investigators
if 	there 	are bomb threats 	at 	state 	facilities. 	Both 	included
and 	excluded employees may 	interact 	in mutual 	aid 	or 	in
dignitary-protection 	situations.
Bargaining 	History
CAUSE 	has 	been 	the 	exclusive 	representative 	of 	the
employees 	in Unit 	7 	since 	it was 	created. 	CAUSE 	and DPA have
negotiated Memoranda of Understanding 	(MOU) 	or 	reopener 	clauses
for Unit 7 employees in 1982, 	1983, 	1984, 	1985 and 1987.
The board of 	directors 	of 	CAUSE 	is 	composed of 	the
representatives of 	a number of 	affiliate 	associations, 	most of
whom historically 	represented 	groups 	of 	employees within Unit 	7
prior 	to 	the 	formation of 	CAUSE 	and the creation of 	the
bargaining 	unit. 	CAUSE 	is 	internally divided 	into 	four
organizational sub-units: 	uniformed, 	investigators, 	regulatory
and 	support. 	All 	the 	classes 	in the proposed unit 	have 	been
historically 	represented 	by 	five 	of 	the 	six 	associations 	which
make up 	the uniformed 	sub-unit 	of 	CAUSE. 	The 	five
organizations 	which previously 	represented 	employees 	included
in 	the 	petition 	are the California 	State Police Association,
8

the 	State Park Peace Officers Association of 	California, 	the
Hospital 	Police Association of 	California, 	the Fish 	& Game
Wardens 	Protective Association, 	California, 	and the California
Association of Lifeguards. 	The 	sixth organization 	included 	in
the 	CAUSE uniformed 	sub-unit 	is 	the 	State Employed 	Firefighters
Association, 	none of whose members 	are at 	issue in this case.
The uniformed 	sub-unit 	of 	CAUSE 	includes 	all 	of 	the
employees 	in the 	severance petition as well 	as 	some employees
who 	are 	not 	included 	in the 	petition.V7
Representatives 	of 	each CAUSE 	sub-unit 	have 	participated 	in
bargaining. 	Often, 	when 	an 	issue 	arose 	at 	the main bargaining
table which pertained primarily to 	a 	sub-unit within CAUSE, 	the
parties would either halt 	negotiations 	at 	the main 	table 	to
resolve 	the 	sub-issue or 	schedule 	additional 	hours 	outside of
the main-table 	negotiations 	so 	that 	the 	issues 	could 	be dealt
with.
Although 	there have been many 	issues 	in bargaining which . .
primarily 	affected 	the 	CAUSE 	uniformed 	employees' 	sub-unit 	or
individual 	job classes 	therein, 	there were no provisions 	in any
. . . 	4 . Y. . . .
7 Firefighters 	(including 	both 	firefighters who 	are 	peace
officers 	and those who 	are not peace officers), 	Pool
Lifeguards, 	Seasonal Lifeguards, 	Communications Operators of
the 	State Police, 	Security Officer 	I's, 	Museum Security
Officers, 	State Park Rangers-Intermittent, 	and Parks 	Safety and
Enforcement 	Specialists 	are 	all 	included with 	the 	CAUSE
uniformed 	employees' 	sub-unit 	but 	are 	excluded 	from the
severance 	petition.
9

-..
of 	the MOU's which were both common 	to 	and 	limited 	to 	the
classifications 	in the proposed 	severance unit. 	When MOU
provisions 	did 	not 	pertain to 	the entire 	bargaining unit 	it was
due 	to variations 	between state departments, 	differences
between 	peace 	officer 	and 	nonpeace 	officer 	classifications 	or
because 	of 	distinctions 	based 	upon 	job classifications 	having
little 	relevance 	to 	the proposed 	severance unit.
. .. .
CSPOA witnesses 	testified 	that 	the uniformed 	employees'
affiliates 	within Unit 	7 	agreed upon 	approximately 	80 	percent
of what 	should be proposed, 	whereas 	in Unit 	7 	generally only 20
percent 	of 	the 	bargaining 	proposals were 	agreed upon by 	all
CAUSE 	affiliates. 	In many 	areas 	the nonuniformed 	employees
would 	simply go 	along with 	the wishes 	of 	the 	uniformed
employees' 	sub-unit 	although their priorities 	differed.
Efficiency 	of 	Operation
DPA 	offered 	testimony 	that 	the 	state's 	efficiency 	of
operation would be 	lessened 	if 	the petition were granted.
According 	to DPA's witnesses, 	bargaining 	difficulties would be
exacerbated 	because 	the 	petition 	proposes 	to 	split
classifications within 	the 	same department 	into 	two 	different
bargaining units. 	That would, 	according 	to DPA's witnesses,
result 	in 	twice 	as much time 	being 	spent 	by departamental
representatives 	and DPA's 	labor 	relations 	officers 	in
negotiating contracts. 	In addition, 	DPA's witnesses 	speculated
that 	establishing 	the 	proposed unit would 	create 	a 	greater
10

chance 	for error 	in administering MOU's, 	that 	the difficulties
of 	the 	reeducation of 	employer 	representatives 	in 	remote
locations would 	result 	in 	greater 	confusion 	and would
ultimately 	interfere with employee 	rights 	to 	effective
representation 	for 	quite some time. 	There was 	also 	evidence,
however, 	that 	every department within the 	state 	currently has
employees 	in more 	than one bargaining unit.
ISSUE
Whether 	a 	separate unit 	consisting 	primarily of 	uniformed
peace 	officers 	should 	be 	severed 	from the 	established
Protective Services 	and Public Safety unit.8
DISCUSSION
Government Code 	section 3521(b) 	(Ralph C. 	Dills Act,
Government Code section 3512 et 	seq.) 	provides 	guidance to 	the
Board 	in determining 	appropriate units 	for 	state 	employees.
The criteria 	include but 	are not 	limited 	to: 	the 	internal 	and
occupational community of 	interest; 	the history of
representation; 	commonality of 	skills, 	working conditions,
8 At 	the 	hearing, 	both CSPOA 	and DPA argued 	that 	the
administrative 	law judge 	(ALJ) 	had the 	authority to modify the
severance petition 	and 	create 	an 	appropriate unit 	if 	the
proposed 	severance unit was 	inappropriate. 	A 	ruling was 	issued
that 	the 	petition could 	not 	be 	reconfigured 	by 	the ALJ 	and 	that
jurisdiction was 	limited 	to 	dismissal 	of 	the petition 	if 	it was
found 	to 	be 	inappropriate. 	DPA 	filed 	an 	interlocutory 	appeal
to that 	ruling; 	however, 	DPA's 	request to certify the 	appeal 	to
the 	Board was 	also 	denied.
11
u

duties, 	training 	requirements 	and supervision; 	the effect 	the
projected 	unit would 	have 	upon 	the 	meet 	and 	confer 	relationship
and efficiency of 	operations; 	the 	size of 	the proposed unit 	and
its 	effect 	upon employee 	representational 	rights; 	and 	the
impact 	created 	by 	fragmentation of 	employees 	and 	proliferation
of units.
Additionally 	section 	3521.7 	provides:
The board may, 	in accordance with 	reasonable
standards, 	designate positions or classes of
positions which 	have duties 	consisting
primarily of 	the 	enforcement 	of 	state 	laws.
Employees 	so 	designated 	shall 	not 	be denied
the 	right 	to 	be 	in 	a unit composed 	solely of
such employees.
In 	spite of 	section 3521.7 	the 	Board decided 	not 	to
establish 	a 	law enforcement 	unit 	saying:
The Board chooses, 	at this 	juncture, 	not to
designate 	positions 	or classes 	of 	positions
which have duties 	consisting 	primarily of
the enforcement of 	state 	laws. 	Rather, 	we
believe 	that 	the 	unit 	criteria 	specified 	in
section 3521, 	apart 	from section 3521.7,
provide 	ample basis 	for 	the Board 	to make
unit determinations. 	Thus, 	the Board
declines 	to 	exercise 	the 	discretionary
authority 	conferred 	on us 	by 	section 	3521.7
but 	reserves 	the 	right 	to do 	so 	at 	some
future date. 	State of California, 	supra.
Instead 	the 	Board 	created 	a more 	comprehensive 	unit 	finding
the 	following:
. 	. 	. 	The activities performed by the
employees 	in 	this 	unit 	include protecting
state 	land 	and buildings, 	furnishing
emergency services, 	issuing 	licenses 	or
permits, 	arresting 	individuals violating
12

penal 	or 	administrative 	laws, 	and protecting
the 	public 	from various 	fraudulent 	practices
and 	schemes. 	It 	is 	common for 	a 	single
classification of 	employees 	to 	have
responsibilities 	in several 	of 	these 	areas
of 	activity. 	For example, 	fish and game
wardens 	perform almost 	all 	of 	the 	above
functions.
Employment 	classes 	within 	this 	unit
induce 	special 	agents 	employed 	by the
Department of Justice, 	state police, 	state
park rangers, 	various categories of persons
involved 	in the provision of 	emergency
services, 	fish and game personnel, 	security
officers, 	intelligence 	and 	investigative
personnel, 	as well 	as various 	inspectors and
examiners. 	The unit 	also 	includes 	those
fire 	service personnel 	not 	included 	in the
firefighting unit. 	The performance of 	the
job 	functions 	of 	these employees 	involves,
to varying degrees, 	an element of personal
danger 	to 	those providing 	the 	services. 	It
is common for 	state park rangers, 	fish and
game personnel, 	state police, 	fire
personnel, 	and various other 	inspectors 	and
investigators 	included 	in this 	unit 	to
provide mutual 	aid 	and 	assistance under
various 	circumstances.
Typically, 	the employees 	included 	in
this 	unit 	perform their 	respective 	job
functions 	away 	from 	an 	office 	environment
and 	are 	frequently 	required 	to 	travel.
While the on-the-job training, 	work
experience, 	and general qualifications of
many of 	the classifications 	included 	in this
unit vary, 	several 	classifications 	receive
common training, 	such as 	that provided under
the 	Peace Officers 	Standards 	Training
Program which 	includes 	instruction 	in 	the
rules of evidence, 	firearms, 	citation
procedures, 	and the 	laws of 	arrest 	and
detention.
Employees 	in this 	unit 	share common
concerns 	including 	hours 	of work, 	uniform
allowances, 	holiday pay, 	scheduling 	and days
13

off, 	safety equipment 	and procedures,
standby 	pay 	and 	compensation 	for 	court
appearances, 	vacation scheduling, 	mileage
allowances, 	special health insurance and
retirement benefits, 	and physical
examinations. 	State of California, 	supra.
It 	is 	clear 	that 	the employees within the proposed
severance unit 	share 	a 	strong 	community of 	interest 	among
themselves. 	They have a commonality of 	skills, 	working
conditions, 	duties, 	and a similarity in the types, 	if not the
amount, 	of training. 	These similarities 	are not, 	however,
limited 	solely 	to 	those 	included within 	the petition. 	As 	the
Board noted 	in 	its 	original unit decision, 	these 	interests 	are
shared, 	to varying degrees, 	with other Unit 7 employees.
A Board 	decision under 	the 	Educational 	Employment 	Relations
Act 	(EERA)9 offers 	helpful 	guidance 	in 	such situations. 	In
Sacramento 	City Unified 	School 	District 	(1977) 	EERB Decision
No. 	3 0 1 0 the Board held that:
A 	separate unit 	is 	not warranted merely
because a group of 	employees 	share a
community of 	interest 	among themselves, 	when
that 	homogenous 	group 	forms 	only a part 	of 	a
larger 	essentially homogeneous 	group 	sharing
similar 	conditions 	of 	employment 	and 	job
functions.11
9 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq.
10 Prior 	to January 	1978, 	the PERB was 	known as 	the
Educational 	Employment 	Relations 	Board.
1 1 The 	issue 	the Board was 	dealing with 	in the 	Sacramento
City case was 	whether 	skilled 	craft 	employees 	should 	be 	allowed
a 	separate unit 	or 	be 	included within 	a 	larger
14

The 	petitioner 	argues 	that 	the Board, 	in 	its 	original unit
decision, 	implicitly recognized 	a duty to 	create 	a 	law
enforcement unit 	at 	some 	future date. 	Even 	if 	that 	argument 	is
correct, 	and 	is 	supported by 	legislative 	intent 	as 	expressed 	in
section 3521.7, 	the proposed 	severance unit 	is 	critically
flawed 	since 	it 	excludes 	large numbers 	of 	other 	law enforcement
classes 	having 	an 	almost 	identical 	community of 	interest.
operations-support 	services unit. 	Earlier 	in that 	same
decision 	the 	Board 	created 	a 	separate unit 	of 	security
officers. 	That 	portion of 	the decision can be distinguished
from the 	case 	at 	hand 	because 	the decision was 	based upon 	long
recognized 	policy considerations 	that 	the 	employer 	is 	entitled
to 	a 	nucleus 	of 	protection employees without 	being 	confronted
with 	a 	division of 	loyalty 	inherent 	in 	the 	inclusion of
security guards 	in the 	same unit with other 	employees. 	These
policy considerations 	are 	not 	applicable 	in the 	instant 	case.
See also NLRB v. 	Jones 	& Louahlin Steel Corp. 	331 U.S. 	416.
The 	two 	major 	dissimilarities 	between 	those 	sought 	and
those 	excluded 	is 	that most 	of 	those 	included 	in 	the 	proposed
unit wear 	some 	sort 	of 	uniform and 	patrol 	a 	set 	geographical
region. 	Considering 	the 	large 	number 	of 	exceptions 	noted 	in
the 	factual 	findings 	above, 	these 	are distinctions without 	a
difference 	and do 	not warrant 	the 	establishment 	of 	a 	separate
unit. 	Because 	of 	the great 	degree 	of 	commonality with many
other 	peace 	officers 	excluded 	from the 	petition, 	the 	petitioner
has 	not 	demonstrated 	that wearing 	some 	sort 	of 	a uniform and
having 	a 	geographically defined 	patrol 	area 	separates 	the
petitioned 	employees 	from other 	classes 	performing 	clearly
-
15

analogous 	law enforcement 	duties.12
The 	bargaining 	history between CAUSE 	and 	the 	DPA 	also
supports 	the dismissal 	of 	the 	severance petition. 	Almost 	all
large bargaining 	units 	have 	some diversity of 	interests.
Unit 	7, 	when 	it was created by the Board, 	was 	no exception.
The 	record 	indicates 	however, 	that 	the 	exclusive 	representative
took 	specific 	organizational 	steps 	to 	accommodate 	pre-existing
differences. 	It 	organized 	special 	sub-units 	to 	insure
representation of 	the 	individual 	concerns 	of 	all 	unit
employees. 	Although no 	one group of 	employees 	could expect 	to
achieve 	all 	its 	bargaining 	goals, 	issues 	of primary concern 	to
the uniformed 	employees' 	sub-unit were 	addressed 	in
negotiations.
There 	has 	been no 	showing 	that 	the 	interests 	of 	the
petitioned-for 	employees 	have 	been 	trampled upon or 	ignored, 	or
that 	their 	represenational 	rights 	have 	been 	abrogated 	because
of 	the existing unit 	structure. 	What 	emerges 	instead 	is 	a
12 While 	many comparisons 	were 	made 	between 	the 	employees
included 	in 	the petition 	and DOJ 	special 	agents, 	lottery
agents, 	arson 	and 	bomb 	investigators 	and 	law enforcement
coordinators, 	this decision should not be seen as 	an
endorsement 	of 	the 	appropriateness 	of 	a 	law enforcement unit 	if
the petition were 	to 	be 	amended or 	refiled 	to 	include 	those
classes. 	There were 	large numbers 	of 	investigator classes, 	and
other 	peace 	officer 	classes 	about which 	little 	evidence was
offered 	at 	this 	hearing. 	These 	additional 	classes 	could have
an 	impact 	on 	the description of 	any 	law enforcement unit,
assuming, 	for 	the 	sake of 	argument only, 	that 	the Board chose
at 	some 	time 	to 	reverse 	itself 	and 	create 	a 	law enforcement
unit.
16

picture of 	a 	stable bargaining 	relationship. 	Since 	the unit
was 	established 	successful 	agreements 	have 	been 	negotiated 	in
1982, 	1983, 	1984, 	1985 and 1987. 	Such stability is an
important 	factor 	and 	should 	not 	be 	disturbed 	lightly.
Livermore Valley 	Joint 	Unified 	School 	District 	(1981)
PERB Decision No. 	165.
Little weight 	is 	given to 	DPA's 	argument 	that 	granting 	the
severance 	petition would 	lessen 	its 	efficiency of 	operations.
That 	argument 	is 	based 	primarily upon the 	fact 	that 	an
additional 	bargaining 	unit 	would 	be 	created 	and 	employees
within 	the 	same 	department would 	be 	placed 	into 	different
bargaining units. 	That would, 	according to DPA, 	require a
greater 	time commitment, 	create 	a 	greater 	chance 	for 	error 	in
administering MOUs 	and 	ultimately 	jeopardize 	employee 	rights 	to
effective 	representation.
If 	all 	other 	factors 	supported 	establishment 	of 	the unit,
the 	time 	expended 	in 	bargaining with 	a 	single 	additional 	uni	1 . 	t
would not 	be 	sufficient 	reason 	to 	deny the petition. 	As 	the
Board 	noted 	in Antelope Valley Community College 	District
(1981) 	PERB Decision No. 	168 	and Pleasanton Joint 	School
District 	(1981) 	PERB Decision No. 	169, 	the potential 	loss of
time which must 	necessarily be 	spent 	in negotiations was 	a
burden 	considered 	by the 	legislature 	but 	found not 	to 	outweigh
the 	benefits 	of 	an overall 	scheme 	of 	collective bargaining.
17

The 	argument 	that 	the 	state would 	be 	prejudiced 	because
employees 	within 	a 	single 	department would 	be 	placed 	into
different 	units 	is 	unpersuasive because 	there 	is 	not 	currently
a 	single department within the 	state 	that 	has 	employees 	in 	only
one 	bargaining 	unit. 	The 	remaining 	ill 	effects 	put 	forth by
DPA were 	speculative 	and 	unconvincing.
However, 	some credence is given to DPA's 	argument 	that
granting 	this 	petition 	could 	potentially 	lead 	to 	the
proliferation of 	units 	the Board 	sought 	to 	avoid when 	it
created Unit 	7. 	As 	PERB has 	recognized 	in creating 	separate
units 	of 	highway patrol 	and 	correctional 	officers, 	section
3521.7 	does 	not 	require 	all 	law enforcement employees 	to 	be 	in
the 	same bargaining 	unit. 	If 	this 	petition were 	granted, 	other
employees 	who 	share 	an equally 	strong 	community of 	interest 	and
are 	also 	engaged 	primarily 	in 	the 	enforcement 	of 	state 	laws
could with equal 	justification, 	demand 	their 	own 	law
enforcement 	severance unit.13
CONCLUSION
Although 	employees 	listed 	in 	the 	proposed 	unit 	share 	a
community of 	interest 	among 	themselves, 	that 	interest 	is 	also
shared with 	other 	employees 	within 	the 	Protective 	Services 	and
Public 	Safety Unit. 	Other employees within Unit 	7, 	not 	sought
by the 	severance petition, 	also have duties which consist
13	13These	These 	employees 	include 	for 	example DOJ 	special 	agents,
lottery 	agents, 	arson 	and bomb 	investigators 	and 	possibly 	a
myriad 	of 	other 	investigators 	or 	peace 	officer 	classes4 . . " .. . .
18

primarily of 	the enforcement of 	state 	laws. 	There 	is 	a history
of 	stable 	and 	successful 	negotiations 	between 	the 	employer 	and
the 	existing 	exclusive 	representative. 	Although 	there 	is
little 	evidence 	that 	creating 	a 	single 	additional 	unit would
impact 	negatively 	on DPA's 	efficiency 	of 	operations, 	granting
the 	petition might 	lead 	to 	a 	proliferation of 	other 	law
enforcement units. 	In short, 	the petitioner has 	failed to 	set
forth 	sufficient 	justification 	for 	dismantling 	the 	unit
established 	by 	the 	Board.
For 	the 	above 	listed 	reasons, 	the 	severance petition 	filed
by CSPOA 	should 	be 	dismissed.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	and 	the 	entire 	record 	in 	this
case, 	it 	is 	ordered 	that 	the 	severance petition 	filed by the
California 	State 	Peace Officers Association 	is 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305; 	this 	Proposed Decision 	and Order shall
become 	final unless 	a party files 	a 	timely statement 	of
exceptions with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento within 20 	days 	of 	service of 	this Decision. 	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. 	See
California Administrative Code 	title 	8, 	part 	III,
section 	32300. 	A document 	is 	considered 	"filed" 	when 	actually
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received before 	the close of 	business 	(5:00 	p.m.) 	on the 	last
day set 	for 	filing, 	". 	. 	. o r when sent 	by telegraph or
certified 	or Express United 	States mail, 	postmarked not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See 	California
Administrative Code, 	title 8, 	part 	III, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	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 California Administrative Code,
title 8, 	part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	March 15, 	1988
JAMES W. 	TAMM
Administrative 	Law 	Judge
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