San Francisco Community College District (Laborers’ International Union of North America) (PERB 1068E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN FRANCISCO 	COMMUNITY 	COLLEGE
DISTRICT,
Employer,
and
LABORERS' 	INTERNATIONAL UNION OF
NORTH AMERICA, 	AFL-CIO, 	LOCAL 261,
Petitioner.
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) 	Case No. 	SF-R-713
PERB Decision No. 	1068
November 	17, 	1994
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Appearances: 	Liebert, 	Cassidy & Frierson by Jeffrey Sloan and
Scott N. 	Kivel, 	Attorneys, 	for San Francisco Community College
District; 	Neyhart, 	Anderson, 	Reilly & Freitas by William J.
Flynn, 	Attorney, 	for Laborers' 	International Union of North
America, AFL-CIO, Local 261.
Before Carlyle, 	Garcia and Johnson, 	Members.
DECISION
CARLYLE, 	Member: 	This case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the
Laborers' 	International Union of North America, 	AFL-CIO,
Local 	261 	(Local 	261) 	to a Board agent's proposed decision
(attached) 	which denied 	its petition 	for 	recognition 	for a
bargaining unit 	of 	gardeners 	and nursery 	specialists 	employed by
the 	San Francisco Community College District 	(District).
The 	Board has 	reviewed 	the 	entire 	record in 	this 	case,
including the proposed decision, 	transcripts, 	Local 	261's appeal
and 	the District's 	response 	thereto. 	The 	Board 	finds 	the 	Board
agent's 	findings 	of 	fact 	and conclusions 	of 	law to be 	free 	of
prejudicial 	error and adopts 	them as 	the 	decision 	of 	the 	Board
itself.

DISCUSSION
Local 	261 	raises numerous 	exceptions 	to the proposed
decision. 	The main arguments 	include 	that 	the 	employees 	of 	the
District 	are 	city 	employees 	and 	therefore 	the 	Board does 	not 	have
jurisdiction; 	and the District 	gardeners 	share a 	community of
interest 	among 	themselves 	but 	not 	with 	skilled 	journeypersons
such as 	plumbers 	or 	carpenters 	employed by 	the District.
In United 	Public 	Employees v. 	Public 	Employment 	Relations
Bd. 	(1989) 	213 Cal.App.3d 1119 	[262 Cal.Rptr. 	158], 	the court
determined 	that 	the 	district 	is 	a public 	school 	employer under
the Educational 	Employment 	Relations Act 	(EERA) 	and the
relationship between the 	district 	and the 	city 	is 	that 	of 	"joint
employers." 	Based upon this 	court decision, 	the Board finds 	that
the 	Board has 	jurisdiction over 	this 	case 	and 	the 	employees 	at
issue.
Next, 	EERA section 3545(a)1 sets out 	the following criteria
to be used 	in establishing 	appropriate units:
(a) 	In each case where 	the appropriateness
of 	the unit 	is an issue, 	the board shall
decide 	the question on the basis 	of 	the
community 	of 	interest 	between 	and among 	the
employees 	and 	their 	established practices
including, 	among other things, 	the extent 	to
which 	such employees 	belong 	to 	the 	same
employee 	organization, 	and the effect 	of 	the
size 	of 	the unit 	on the 	efficient 	operation
of 	the school 	district.
J1EERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.	EERA
2

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In Sweetwater Union High School District 	(19 76) 	EERB
Decision No. 	4 	(Sweetwater),2 the Board established three
presumptively appropriate units: 	(1) 	instructional aides; 	(2)
office technician and business services; 	and 	(3) 	operations -
support 	services. 	The operations-support 	services 	unit 	included
transportation, 	custodial, 	gardening, 	cafeteria, maintenance and
warehouse 	employees. 	By 	creating 	three presumptively appropriate
units 	for 	classified employees, 	the Board determined 	that 	a
strong 	community 	of 	interest 	generally 	exists 	among 	the 	employees
in each of 	these groups.3
The 	burden 	is 	upon 	the party 	seeking a unit 	or units
different 	than the 	Sweetwater unit 	configuration. 	(Compton
Unified School District 	(1979) 	PERB Decision No. 	109.)
Specifically, 	the Board stated:
The 	EERA does 	not prescribe 	that 	'the most
appropriate' 	unit be awarded; 	rather, 	the
statute 	repeatedly 	refers 	to 	'an appropriate
-unit.' 	[Fn. 	omitted.] 	Thus by requiring an
employee 	organization 	to 	establish 	that 	a
variant unit 	is more 	appropriate 	than a
Sweetwater unit, 	the Board gives weight 	to
its 	preference 	for 	Sweetwater units 	without
converting 	them into 	'most 	appropriate' 	or
'only appropriate' 	units. 	In this sense, 	an
employee 	organization need not 	rebut 	the
Sweetwater presumption 	in 	order 	to 	obtain a
variant unit.
2Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment Relations Board 	(EERB).
3Local 	261 	also 	argues 	that 	the 	Sweetwater presumption does
not 	apply 	in this 	case. 	However, 	we 	concur with the Board
agent's 	rejection of 	this 	argument 	on pages 	27-28 	of 	the proposed
decision.
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The 	record 	indicates 	support 	for 	the 	Board agent's 	finding
that 	there 	are 	sufficient 	common 	factors 	among 	the unrepresented
classified 	employees 	to 	find 	that 	the 	gardeners 	and nursery-
specialists 	do not 	have a 	"separate and distinct" 	community of
interest. 	This 	conclusion 	is based upon the 	fact 	that 	all 	of 	the
unrepresented employees 	are 	involved with 	the maintenance 	of 	the
physical 	plant 	of 	the District, 	work with their hands 	and with
tools, 	perform both skilled and unskilled manual 	labor, 	exercise
independent 	judgment, 	have 	similar health and 	safety 	concerns 	and
are 	subordinates 	of 	the 	building and grounds 	superintendent.
Moreover, 	another reason that 	lends 	support 	to 	finding 	the
unit 	determination as 	proposed by Local 	261 	to be 	inappropriate
is 	the potential 	for 	the proliferation of 	small 	units 	of 	building
trades 	employees. 	Local 	261's 	request 	for recognition would
consist 	of 	only eight 	employees 	in three 	classifications:
gardener, 	assistant 	supervisor gardener, 	and nursery specialist.
However, 	the District 	also employs 	approximately 25 	other
unrepresented 	classified 	employees 	in a variety 	of
classifications.4 Assuming 	the Board 	found 	that 	the 	gardeners
had a distinct 	and separate 	community of 	interest, 	this 	would
make 	it 	difficult 	to deny to 	other groups 	the 	formation of 	units
who share 	"unusual 	circumstances" 	like 	that 	of 	gardeners.
4The District's 	other 	classified 	employees 	are 	currently
represented 	in a 	single unit. 	The District 	granted voluntary
recognition on February 18, 	1986, 	to United Public Employees,
Local 	790, 	SEIU, 	for a unit of classified employees, 	less
managers, 	confidential, 	supervisory, 	and 	"building and trade
classifications."
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Finally, 	significant amounts 	of 	time are also 	required for
preparations 	for negotiations, 	training 	for managers 	and
supervisors, 	contract 	administration and grievance processing,
and meeting with 	the 	Board of 	Trustees. 	The Board has 	previously
found 	that 	negotiation and administration 	of 	additional
agreements may have 	a negative 	impact 	upon 	state personnel
resources. 	(State of 	California 	(Department 	of 	Personnel
Administration)) 	(1993) 	PERB Decision No. 	988-S, 	pp. 	25-26.)
These 	factors 	weighed and balanced along 	side 	statutory 	criteria
support 	the 	denial 	of 	the petition 	for recognition.
Finally, 	the Board agrees with the 	Board agent 	that 	the
building 	trades 	classifications 	share 	similar 	and 	often 	related
job 	functions: 	They work under 	common 	supervision and working
conditions; 	have 	similar training in common; 	and they work with
similar tools and equipment. 	Therefore, 	the Board agrees 	that 	a
single unit 	comprised 	of 	the 	building 	trades 	classifications 	at
the District 	is 	an appropriate unit 	for 	representation purposes
under 	the 	EERA.
ORDER
Based on the 	foregoing adopted 	findings 	of 	fact, 	conclusions
of 	law, 	discussion herein and the 	entire 	record in this 	case,
Laborers' 	International Union of North America, 	AFL-CIO, 	Local
261's 	(Local 	261) 	request 	for recognition of a unit 	consisting of
solely gardeners 	and nursery 	specialists 	is 	hereby DENIED.
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The Board 	finds 	the 	following unit 	is 	appropriate 	for
meeting 	and negotiating, 	provided an 	employee 	organization
becomes 	the 	exclusive 	representative:
Unit Title: 	Skilled Crafts .
Shall 	Include: 	The classifications of gardener, 	nursery-
specialist, 	painter, 	painter supervisor I, 	electrician,
plumber, 	steamfitter, 	stationary engineer, 	truck driver,
locksmith 	and 	carpenter.
Shall 	Exclude: 	All 	other employees, 	including management,
supervisory and 	confidential 	employees.
Within 	10 days 	following issuance of 	this decision, 	the
San Francisco Community College District 	(District) 	shall 	post 	on
all 	employee bulletin boards 	in each 	facility of 	the 	employer 	in
which members 	of 	the 	unit 	described 	in 	the 	decision are 	employed,
a 	copy of 	the Notice 	of 	Decision attached hereto 	as 	an Appendix.
The Notice 	of Decision shall 	remain posted 	for a minimum of 	15
workdays. 	Reasonable 	steps 	shall be 	taken to ensure 	that 	the
Notice 	is 	not 	reduced in size, 	altered, 	defaced or covered with
any 	other material.
Pursuant 	to 	PERB Regulation 33470,5 Local 	261 	shall 	have 	15
workdays 	from the date of 	service 	of 	this decision 	to demonstrate
to the 	satisfaction of the 	San Francisco Regional Director, 	at
least 	30 	percent 	support 	in the unit 	described as 	appropriate.
An 	election 	shall 	be 	scheduled and 	conducted by 	the 	Public
Employment 	Relations 	Board 	if 	such 	evidence 	of 	employee 	support
is demonstrated, 	unless 	Local 	261 demonstrates proof 	of majority
5PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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support 	and the District 	grants voluntary recognition. 	(PERB
Regulations 	33470 	and 33480.)
If 	proof 	of 	at 	least 	30 	percent 	support 	is 	not provided by
Local 	261, 	the petition shall be dismissed.
The 	Board hereby ORDERS 	that 	this 	case be 	REMANDED 	to 	the
San 	Francisco Regional 	Director 	for proceedings 	consistent 	with
this decision.
Members 	Garcia and Johnson 	joined 	in 	this 	Decision.
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APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
CASE: 	SAN 	FRANCISCO 	COMMUNITY COLLEGE 	DISTRICT
Case No. 	SF-R-713
PERB Decision No. 	1068
November 17, 	1994
EMPLOYER: 	San 	Francisco 	Community 	College 	District
33 	Gough Street
San Francisco, 	CA 	94103
(415) 	241-2255
EMPLOYEE 	ORGANIZATION
PARTY TO 	PROCEEDING:
Laborers' 	International Union of North America,
AFL-CIO, 	Local 261
3271 	18th Street
San Francisco, 	CA 	94110
(415) 	826-4550
FINDINGS:
The 	Board 	finds 	the 	following unit 	is 	appropriate 	for
meeting and negotiating, 	provided an employee 	organization
becomes 	the 	exclusive 	representative:
Unit 	Title: 	Skilled Crafts
Shall 	Include: 	The classifications 	of gardener, 	nursery
specialist, 	painter, 	painter supervisor I, 	electrician,
plumber, 	steamfitter, 	stationary engineer, 	truck driver,
locksmith 	and 	carpenter.
Shall 	Exclude: 	All 	other employees, 	including management,
supervisory and 	confidential 	employees.
Pursuant 	to PERB Regulation section 33450, 	within 	10 	days
following 	issuance of 	this Notice of Decision, 	the San Francisco
Community College District 	(District) 	shall 	post 	on all 	employee
bulletin boards 	in 	each 	facility of 	the 	employer 	in which members
of 	the unit described in the decision are employed, 	a 	copy of
this Notice of Decision. 	The Notice 	of Decision shall 	remain
posted for a minimum of 	15 	workdays. 	Reasonable 	steps 	shall 	be
taken to 	ensure 	that 	this Notice 	is not 	reduced in size, 	altered,
defaced 	or 	covered with 	any 	other material.

Pursuant 	to PERB Regulation 33470, 	the Laborers'
International Union of North America, 	AFL-CIO, 	Local 	261 	(Local
261) 	shall 	have 	15 	workdays 	from the date of 	service of 	this
decision 	to demonstrate 	to 	the 	satisfaction of 	the 	San 	Francisco
Regional 	Director, 	at 	least 	30 percent 	support 	in the unit
described as 	appropriate. 	An election 	shall 	be 	scheduled and
conducted by 	the 	Public 	Employment 	Relations 	Board 	if 	such
evidence 	of 	employee 	support 	is 	demonstrated, 	unless 	Local 	261
demonstrates 	proof 	of majority 	support 	and 	the District 	grants
voluntary recognition. 	(PERB Regulations 	33470 	and 33480.)
If proof of at 	least 	3 0 percent 	support 	is not provided by
Local 	261, 	the petition shall be dismissed.
Dated: 	SAN 	FRANCISCO 	COMMUNITY
COLLEGE 	DISTRICT
By Authorized 	Agent
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THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR A MINIMUM
OF FIFTEEN 	(15) 	WORKDAYS. 	REASONABLE STEPS 	SHALL BE TAKEN TO
ENSURE THAT THIS NOTICE 	IS NOT REDUCED IN SIZE, 	ALTERED, 	DEFACED
OR 	COVERED 	BY ANY OTHER MATERIAL.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SAN 	FRANCISCO 	COMMUNITY 	COLLEGE
DISTRICT,
Employer,
and
LABORERS' 	INTERNATIONAL UNION OF
NORTH AMERICA, 	AFL-CIO, 	LOCAL 261,
Petitioner.
Representation
Case No. 	SF-R-713
PROPOSED 	DECISION
(2/14/94)
Appearances; 	Liebert, 	Cassidy & Frierson, 	by Jeffrey Sloan and
Scott N. 	Kivel, 	Attorneys, 	for San Francisco Community College
District; 	Neyhart, 	Anderson, 	Reilly & Freitas, 	by William J.
Flynn, 	Attorney, 	for Laborers' 	International Union of North
America, AFL-CIO, 	Local 261.
Before Les 	Chisholm, 	Hearing Officer.
PROCEDURAL 	HISTORY
On June 15, 	1990, 	the Laborers' 	International Union of North
America, 	AFL-CIO, 	Local 261 	(Local 261 or Petitioner) 	filed a
request 	for 	recognition with 	the 	San 	Francisco 	Community 	College
District 	(SFCCD or Employer), 	and concurrently served a copy of
the 	request 	on the 	San Francisco Regional 	Office 	of 	the 	Public
Employment 	Relations 	Board 	(PERB 	or 	Board).1 The 	proposed unit
described by 	Local 	261 	included 	"[a]11 	classifications 	recognized
by 	the 	City and 	County of 	San Francisco as 	being within Unit
[sic] 	of Laborers' 	Local #261." 	Local 261 alleged on the face of
its 	petition that 	the City and County of 	San Francisco 	(City) 	is
a 	"joint 	employer" 	with 	SFCCD. 	Attached 	to and referenced by 	the
1PERB's regulations, 	found at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq., 	establish the
procedures 	for such 	filings beginning at 	section 33050.
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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petition was 	an excerpt 	from a memorandum of 	understanding
between the 	City and Local 	261 	listing 	32 	job classifications 	for
which 	Local 	261 	has 	been 	certified as 	the 	exclusive
representative.
As 	later clarified, 	Local 	261 	seeks 	a unit 	including 	two
classifications 	currently utilized by SFCCD: 	Gardener 	(Class
Code 3417) 	and Nursery Specialist 	(Class Code 3428).2
On August 	13, 	1990, 	the parties were advised of PERB's
finding 	that 	Local 	261 	had evidenced majority support 	for 	its
petition. 	On September 6, 	1990, 	the Employer filed its notice of
decision, 	denying voluntary recognition on the 	grounds 	that 	the
unit 	sought 	was 	inappropriate 	and 	requesting 	that 	PERB
investigate 	the 	issue 	of unit appropriateness.
Settlement 	conferences 	were 	conducted with 	the parties 	on
November 19, 	1990, 	January 29, 	1991 and April 1, 	1991. 	On May
20, 	1991, 	PERB issued an order affording the Petitioner an
opportunity to 	show cause, 	by way of 	information and argument,
why 	its 	petition 	should not 	be 	dismissed. 	The 	Petitioner 	filed a
timely response 	to 	the 	order, 	and the Employer 	filed a 	reply to
the 	response. 	The parties were subsequently advised, 	by letter
dated August 	30, 	1991, 	that 	this matter would be submitted to
formal 	hearing, 	and the 	case was assigned to the undersigned.
A prehearing 	conference was 	conducted on November 	5, 	1991
and hearing dates were set for November 25 	- 	27, 	1991. 	However,
2SFCCD 	currently employs 	seven gardeners 	and 	one 	nursery
specialist. 	The 	classification of Assistant Gardener Supervisor
(Class Code 	3418) 	has also been utilized by SFCCD, 	but 	is
presently vacant.
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following additional 	settlement 	discussions 	with another Board
agent 	on November 5 and 21, 	1991, 	the hearing was 	cancelled based
on the parties' 	tentative agreement. 	The official 	case 	file 	in
this 	matter 	reflects 	that 	there 	followed periodic 	communications
between the parties 	and a Board agent, 	including an additional
settlement conference on June 	1, 	1992, 	concerning the status of
the tentative agreement. 	Finally, 	by letter dated March 1, 	1993,
the 	Petitioner 	requested 	that 	PERB 	reactivate 	the 	instant 	case 	if
no 	final 	agreement had been presented within 3 0 	days.
On April 	19, 	1993, 	the parties were advised that 	the matter
would again be 	set 	for hearing before 	the undersigned. 	A hearing
was then conducted on August 	17, 	18 and 19, 	and September 9, 	24
and 30, 	1993. 	Petitioner's 	request 	that 	the record be reopened
to 	allow 	introduction 	of 	certain 	legislative 	history materials
was denied on December 14, 	1993.3 Upon receipt of 	the parties'
briefs on December 27, 	1993, 	the matter was 	submitted for
decision.4
LEGAL 	BACKGROUND
The 	status 	of 	SFCCD as 	a public 	school 	employer under the
Educational 	Employment Relations Act 	(EERA)5 was 	decided by the
3Counsel 	for Petitioner urges 	in his 	brief 	that 	this
decision be 	reconsidered. 	The motion to 	reopen the 	record 	is
denied here 	for 	the 	reasons 	set 	forth 	in the 	earlier ruling.
4On December 23, 	1993, 	Petitioner filed a motion to correct
the 	transcript 	on three points. 	The 	final volume 	of 	the hearing
transcript was 	served on October 12, 	1993. 	Pursuant 	to PERB
Regulation 32209, 	the 	Petitioner's 	request 	is untimely and must
be 	denied.
5EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
3

Court of Appeal 	in United Public Employees. 	Local 	790. 	SEIU, 	AFL-
CIO v. 	Public 	Employment Relations Board 	(September 	1989) 	213
Cal.App.3d 1119 	[262 	Cal.Rptr. 	158] 	(UPE).6 The Court of Appeal
addressed the need to harmonize provisions 	of 	EERA, 	the 	Education
Code7 and the 	City Charter8 in 	considering 	the 	Employer's
6The 	court's 	decision 	in UPE 	thus 	reversed the Board's
finding 	that 	SFCCD 	is 	not under PERB's 	jurisdiction 	(San
Francisco 	Community College District 	(1988) 	PERB Decision No.
688), 	finding more persuasive 	the Board's 	reasoning in an earlier
case 	(San Francisco 	Community College District 	(Barnes) 	(1986)
PERB Order No. Ad-153).
7Under Education Code 	section 88000, 	certain provisions 	of
the 	Education 	Code 	which would otherwise 	apply 	to all 	classified
employees 	of 	a 	community 	college
shall 	not 	apply to employees 	of a 	community
college 	district 	lying wholly within a 	city
and 	county which provides 	in 	its 	charter 	for
a merit 	system of 	employment 	for 	employees
employed 	in positions 	not 	requiring
certification 	qualifications.
Education Code 	section 88137 	further provides 	as 	follows:
In 	every 	community 	college 	district
conterminous with the boundaries 	of a 	city
and county, 	employees not 	employed in
positions 	requiring 	certification
qualifications 	shall be employed, 	if 	the 	city
and 	county has 	a 	charter providing 	for a
merit 	system of 	employment, 	pursuant 	to the
provisions 	of 	such 	charter providing 	for 	such
system and shall, 	in all 	respects, 	be subject
to, 	and have all 	rights granted by, 	such
provisions; provided, 	however, 	that the
governing board of 	the 	district 	shall 	have
the 	right 	to fix the duties 	of all 	of 	its
noncertificated 	employees.
It 	is 	undisputed that 	these provisions 	apply uniquely to SFCCD.
8The 	City Charter provides 	for a Civil 	Service 	Commission
(CSC) 	at Article III, 	Chapter 5, 	sections 3.660 and 3.661, 	and
sets 	forth Civil 	Service 	Provisions 	in Article VIII, 	Chapter 3,
sections 8.300 et seq.
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argument 	that 	PERB 	lacked jurisdiction 	in 	the UPE 	case. 	The
court 	found that 	SFCCD hires 	and fires 	its 	employees, 	supervises
them on the job, 	assigns duties, 	administers leaves and other
benefits 	provided under the 	City's 	civil 	service 	system, 	grants
other benefits, 	sets 	salaries, 	and determines what holidays will
be taken by employees. 	(UPE. 	supra.) 	The City, 	through its
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civil 	service system, 	establishes 	classifications, 	qualifications
and lists 	of persons 	eligible 	for appointment, 	awards 	certain
fringe and leave benefits, 	and administers 	retirement 	and a
health service plan. 	(Ibid.) 	In sum, 	in the court's view, 	SFCCD
and 	the 	City 	had 	"successfully harmonized 	and divided 	their
responsibilities 	over the 	employees." 	(Ibid.) 	The 	court 	thus
-
concluded that 	SFCCD 	is 	a public 	school 	employer and that 	SFCCD
and the 	City are 	"joint 	employers" 	of 	SFCCD's 	classified
employees.9 (Ibid.)
FACTS
SFCCD 	operates 	at 	several 	campuses 	and other 	locations
throughout 	the 	City, 	and has 	an enrollment 	of approximately
90,000 	students. 	SFCCD 	employs 	approximately 	1,600 	certificated
staff 	and 700-800 	classified staff. 	Currently, 	there are
established bargaining units 	and 	exclusive 	representatives 	for
9The court cites NLRB v. 	Browning-Ferris Industries. 	Etc.
(3d Cir. 	1982) 	691 F.2d 1117, 	1128 	[111 LRRM 2748] 	for the
proposition 	that 	"where 	two 	or more 	employers 	exert 	significant
control 	over the same employees 	- - 	where from the evidence 	it 	can
be 	shown 	that 	they 	share 	or 	co-determine 	those matters 	governing
essential 	terms and conditions 	of employment 	- - 	they constitute
'joint 	employers'. 	. . . "
55

certificated personnel,10 certificated 	supervisors11 and general
classified 	staff.
The 	latter unit, 	represented by United Public Employees,
SEIU Local 	790 	(Local 790), 	includes custodians, 	storekeepers and
cooks, 	paraprofessionals, 	and clerical and technical employees.
Local 	790's unit 	includes 	a number of 	classifications 	which 	it
also represents 	in City units, 	and 41 	classifications 	that are
either 	represented by a 	different 	employee 	organization, 	or are
not 	represented, 	at 	the City.
Local 790's unit excludes painters 	(3 employees),
electricians 	(3), 	plumbers and steamfitters 	(3), 	stationary
engineers 	(9), 	truck drivers 	(2), 	gardeners and nursery
specialist 	(8) , 	and locksmith and carpenters 	(4) ,12 The total
number of 	unrepresented classified employees 	is 	32.
SFCCD's labor relations, 	including negotiations, 	contract
administration and advice 	to 	the Board of 	Trustees, 	are handled
by Employee Relations Director Lawrence C. 	Klein, 	who is assisted
by one 	employee 	relations 	representative, 	one 	secretary and one
part-time 	clerk. 	Negotiations 	with each of 	the 	three 	current
exclusive 	representatives 	have been 	time 	consuming, 	involving 	300
^Represented by the American Federation of 	Teachers, 	Local
2121.
Represented by 	the 	Department 	Chairperson 	Council.
12Local 	790 	was 	granted voluntary 	recognition by 	SFCCD 	on
February 18, 	1986, 	in PERB Case No. 	SF-R-679. 	The unit proposed
as 	appropriate by Local 	790 	excluded 	"building 	trades
classifications", 	and the 	resolution approved by SFCCD's 	Board of
Trustees 	granting 	recognition 	specifically 	listed 	the 	various
building 	trades 	classifications 	excluded.
66

or more 	hours 	for each agreement 	reached 	in 	the 	last 	round of
negotiations. 	Significant 	amounts 	of 	time are also 	required 	for
preparations 	for negotiations, 	training 	for managers and
supervisors, 	contract 	administration and grievance processing,
and meeting with 	the 	Board 	of 	Trustees.
Civil 	Service 	Provisions
The 	City's 	civil 	service 	system sets 	up a 	"merit 	and
fitness" 	requirement 	for employment, 	including provisions 	for
testing and examinations, 	appointments 	from a list 	of 	certified
eligibles 	based on the 	"rule 	of 	three 	scores," 	and disciplinary
suspensions 	and dismissals.
The 	civil 	service 	system also provides 	for 	the 	setting 	of
compensation 	for most 	covered employees 	based on 	the principle 	of
"like compensation 	. 	. 	. 	for like service." 	The Charter also
requires, 	for most employees, 	that 	compensations be 	fixed 	"in
accord with 	the 	generally prevailing 	rates 	of wage 	for like
service 	and working 	conditions 	in private 	employment 	or 	in other
comparable governmental 	organizations" 	in California. 	Under the
Charter's provisions, 	the CSC 	conducts 	salary surveys using
"benchmark" 	comparisons 	based 	on 	classification and 	recommends 	a
compensation 	schedule 	or adjustments 	each year.
The 	CSC's 	compensation 	recommendations 	are 	normally
reflected 	in a 	Salary Standardization Ordinance 	(SSO) 	adopted by
the 	City's Board of 	Supervisors. 	The SSO sets 	forth salary
schedules, 	vacation and sick leave accruals, 	holidays, 	shift
differentials, 	night 	duty pay and other 	components 	of
compensation. 	The 	SSO 	includes 	frequent 	reference 	to specific
7

provisions 	which have been negotiated as 	a part 	of 	a memorandum
of understanding 	(MOU) 	between the 	City and an exclusive
representative, 	but 	in many cases wages 	are not 	addressed by 	the
MOU.
The 	SSO 	states 	that 	its provisions 	apply to 	the 	SFCCD and
the San Francisco Unified School District 	(SFUSD). 	In addition,
SFCCD's 	Board of 	Trustees 	has 	by 	resolution adopted 	the
provisions 	of 	the 	SSO each year as 	applicable 	to 	its 	classified
employees. 	When the 	City negotiated 	"furlough days" 	agreements
with 	its 	exclusive 	representatives 	after 	the veto 	of 	the proposed
1993-94 	SSO,13 SFCCD 	reached 	similar agreements 	covering most 	of
its 	classified employees.
SFCCD 	employees 	generally 	receive 	the benefits 	set 	forth 	in
the SSO. 	Gardeners at SFCCD, 	for example, 	receive the same night
duty pay as do City gardeners. 	As noted 	in the SSO, 	SFCCD and
SFUSD 	employees 	receive 	the 	same 	number of paid holidays 	as 	do
City employees, 	but 	the school districts may, 	and do, 	designate
different 	holidays 	than 	those 	observed by 	the City. 	SFCCD and
SFUSD 	employees 	are 	covered by a 	different 	dental 	benefits 	plan
than employees 	of 	the 	City and 	received dental 	benefits 	earlier
than City employees. 	SFCCD employees 	are 	covered by 	the 	same
health service 	and 	retirement 	plans 	as 	are 	City 	employees.
To hire a gardener or other 	classified employee, 	SFCCD
requests 	an eligible 	list 	from CSC, 	utilizing the 	same 	list 	and
13The 	1992-93 	SSO 	remains 	in effect 	for 	1993-94 	due 	to a veto
of 	the proposed SSO by the mayor.
8

examination process 	as used by City departments.14 The 	actual
hiring 	decision 	is made 	by SFCCD. 	SFCCD's 	classified employees
are under 	the 	City civil 	service 	system; 	they can transfer 	into
or 	from City 	or 	SFUSD positions,15 carry vacation and 	sick 	leave
credits 	with 	them upon transfer, 	and have 	SFCCD 	experience 	count
toward any 	experience 	requirement 	for 	a 	promotional 	examination.
Because gardener 	is 	designated as 	a 	"citywide" 	class 	for layoff
purposes, 	a SFCCD gardener subject 	to 	layoff 	could 	"bump" 	a less
senior employee 	in a City department 	(or vice versa).
The 	City's 	Bargaining Units
The 	City is 	subject 	to the provisions 	of 	the Meyers-Milias-
Brown Act 	(MMBA),16 which provides 	collective bargaining rights
for employees of cities, 	counties and special districts, 	and has
adopted an Employee Relations Ordinance 	(ERO)17 pursuant 	to the
MMBA. 	City bargaining units 	are 	established by 	the 	ERO,
including Unit 1 	- 	Crafts.
Unit 	1 	- 	Crafts 	is 	comprised of multiple bargaining sub-
units 	for 	each 	"building 	trade 	or other 	craft 	or group which has
historically 	established 	separate 	bargaining 	units 	in private
14There are 	limited exceptions 	to this general 	rule, 	namely
certain prohibitions 	against 	the 	employment 	by a public 	school
system of 	persons 	convicted of 	sex crimes 	or of 	dealing drugs.
(Hearing Transcript, 	Volume III, 	p. 	6.)
15Two gardeners 	currently employed by SFCCD, 	Roul 	Hernandez
and Guido Nannini, 	have been 	continuously employed under 	the
civil 	service system since 	1970 and 1964, 	respectively, 	while
working 	in various positions with the 	City, 	SFUSD and SFCCD.
16Government 	Code 	section 3500 	et 	seq.
17San Francisco Administrative 	Code, 	section 16.200 	et 	seq.
99

industry 	or 	the 	journeymen 	of 	which 	normally attain 	status
through the 	completion of 	a 	substantial 	period 	of
apprenticeship." 	(San Francisco Administrative Code, 	section
16.210.) 	There are more 	than 30 	such units which exist within
the Unit 	1 	framework.
Local 	261 	represents Unit 	1-N, 	including more 	than 	800
employees 	in such classifications as 	farmer, 	gardener, 	general
laborer, 	tree topper, 	pest control specialist, 	sewer maintenance
worker and asphalt 	finisher.
In all, 	there are over 200 bargaining units which have been
established under the ERO, 	with representation by more 	than 3 0
separate 	employee 	organizations.18 The 	City negotiates 	separate
memoranda 	of understanding 	for these 	200-plus bargaining units,
although 	informal 	coalition bargaining 	takes 	place 	on 	occasion
over 	such 	issues 	as 	pay equity and wage 	freezes.
Community 	of 	Interest 	Factors
A. 	Representation History
Local 	261 	has 	engaged 	in 	representation activities 	for
gardeners 	employed by SFCCD, 	including 	informal 	negotiations 	over
wage 	issues. 	Gardeners 	employed by SFCCD are members 	of 	Local
261, 	and Local 	261 	receives 	dues payments by SFCCD employees
through payroll 	deduction.19
18Local 79 0, 	for example, 	represents several different
bargaining units 	under 	the 	City structure.
19SFCCD employees, 	though paid out 	of 	SFCCD funds, 	receive a
City 	check through an arrangement 	between 	the 	City and SFCCD.
10

B. 	Supervision
Gardeners 	report 	directly 	to 	Building 	and Grounds
Superintendent James Keenan 	(Keenan), 	who in turn reports 	to the
director of 	operations. 	Keenan is 	responsible 	for all
maintenance-related activities 	at 	SFCCD, 	and supervises 	a 	staff
of 	40 	including all 	of 	the unrepresented classifications. 	Of
these unrepresented 	classifications, 	only the gardeners 	and truck
drivers 	do not 	have 	a 	formal 	apprenticeship 	requirement.
SFCCD has 	plans 	for a 	shops 	complex as 	a 	location 	for all
employees 	who 	report 	to Keenan, 	but 	currently they do not 	report
to a central 	location. 	Except 	for stationary engineers, 	who work
three different 	shifts, 	all 	building 	trades 	employees work within
the 	hours 	of 	6:00 	a.m. 	and 4:30 	p.m.
All 	of 	the 	employees 	reporting 	to 	Keenan exercise
independent 	judgment 	and 	frequently 	work without 	direct
supervision.
C. 	Job Duties
The 	nursery 	specialist 	works 	in 	the 	Ornamental 	Horticulture/
Retail 	Floristry Department, 	an academic department. 	The nursery
specialist 	is 	involved in plant 	propagation activities 	in a
nursery, 	greenhouse or conservatory. 	Typical 	duties 	of a nursery
specialist 	include making 	cuttings 	and grafts, 	sowing and
gathering seeds, 	transplanting cuttings and seedlings, 	pruning
and 	staking plant 	stock, 	preparation of 	floral 	displays 	and
potting and 	repotting plants. 	The 	nursery 	specialist 	also
sterilizes 	soil and applies 	fungicide, 	insecticide, 	and
fertilizers. 	This position requires 	a working knowledge 	of plant
11

and ornamental 	horticulture, 	completion of 	high school 	and two
years' 	experience as 	a gardener 	(or equivalent 	training and
experience).
Gardeners maintain 	landscaped areas 	and athletic 	fields.
They mow, 	rake, water, weed, burn, plant, and prune; 	operate
power equipment 	such as 	large and small mowers, 	chain saws,
rototillers, 	edgers, 	blowers and shredders; 	drive trucks; 	sweep
and clean; 	inspect 	and repair sprinklers 	and hoses; 	repair
damaged trees and shrubs; 	trap rodents; 	do minor repairs 	on
equipment 	and 	facilities 	as 	needed; 	and spray for disease and
insect 	control. 	The position requires 	two years 	of 	formal
education 	in 	landscape 	gardening 	or 	garden-center 	operation 	(an
A.A. 	degree is preferred), 	or equivalent experience.
Gardeners 	at 	SFCCD work an assigned 	"beat" 	(area of
responsibility), 	but also work in teams 	on specified projects.
On occasion, 	gardeners will work on a project with employees 	in
other classifications, 	such as plumbers, 	but may also work on a
project, 	such as 	tree 	topping, 	with a 	crew from a City
department.20
The 	work performed by painters 	is 	primarily on 	small
maintenance projects; 	one of 	their major jobs 	is dealing with
graffiti. 	Painters work with chemicals, 	including a recovery
system that 	separates paint 	from thinners. 	Electricians 	also
20SFCCD 	contracts 	with 	City departments 	for 	certain work 	for
which they do not 	employ personnel, 	such as 	glaziers 	and tree
toppers. 	In addition, 	SFCCD purchases 	its 	trucks 	through the
City, 	and these vehicles 	carry the 	City seal 	and are 	sent 	to City
shops 	for repair.
12

work primarily 	on maintenance 	and preventive 	maintenance
projects, 	including work with high voltage material 	and emergency
generators. 	Plumbers work both with 	fresh water and sewerage,
pumps, 	drinking fountains, 	bathrooms and chemicals, 	and do both
maintenance 	and 	remodelling projects. 	Plumbers 	also 	repair gas
lines 	in 	laboratories. 	Steamfitters work with high pressure
steam and boiler 	systems, 	including maintenance 	and 	repair.
Stationary 	engineers 	run high pressure 	boilers 	and 	also maintain
and 	repair heating, 	ventilation and air 	conditioning 	systems.
The 	locksmith 	is 	responsible 	for the key 	control 	and locks 	for
all 	SFCCD buildings, 	rooms, 	fire alarm boxes and safes.
Carpenters 	perform maintenance 	and 	construction work, 	including
repair of blackboards, 	building partitions and cabinets, 	and
installing doors 	and window sashes. 	The 	truck drivers 	operate
trucks, 	transport mail and furniture, 	and haul material and
supplies 	for maintenance activities.
POSITIONS 	OF THE 	PARTIES
Petitioner
Local 	261 	argues 	that 	the 	record demonstrates 	a 	sufficient
community 	of 	interest 	among 	the 	gardeners 	to 	find 	the proposed
unit 	appropriate. 	The 	community of 	interest 	identified by 	Local
261 derives 	from the 	"joint 	employer" 	status 	of 	SFCCD and its
employees' 	inclusion in City bargaining units. 	Local 	261 asserts
that 	the 	gardeners 	at 	SFCCD 	share a 	community of 	interest 	among
themselves 	and with 	other 	employees 	in City Unit 	1-N, 	but 	not
with 	skilled 	journeypersons 	such as 	plumbers 	or 	carpenters
employed by SFCCD. 	SFCCD's gardeners, 	according to Local 	261,
13

are 	affected by 	the 	same 	benchmark 	comparison 	for 	salary 	setting
purposes, 	are 	covered by the 	same layoff 	rules 	and procedures,
belong to the same employee organization 	(and no other), 	and
generally 	enjoy 	the 	same benefits 	under 	the 	civil 	service 	system
and 	SSO as 	other Unit 	1-N employees.
Local 	261 	asserts 	that 	the 	traditional 	unit analysis 	found
in Sweetwater Union High School District 	(1976) 	EERB21 Decision
No. 	4 	(Sweetwater) 	and decisions 	following Sweetwater is
inapposite 	to the present 	case because of unique 	factors. 	The
unique 	factors 	are 	the 	"joint 	employer" 	status 	of 	SFCCD and the
City, 	the 	inclusion of SFCCD's 	employees under the City's 	civil
service 	system and 	the 	resultant 	degree 	to which Local 	261
arguably already 	represents 	the 	petitioned-for 	employees 	before
the 	CSC and in negotiations 	for City Unit 	1-N. 	Local 	261 	also
argues that Sweetwater is 	inapplicable where, 	as here, 	the
existing bargaining unit 	structure 	does 	not 	allow 	for 	creation of
the 	three 	classified units 	preferred under 	Sweetwater.
PERB must 	find 	in favor of 	the proposed unit, 	according 	to
Local 	261, 	in order to harmonize 	the UPE decision with the
requirements 	of EERA, 	the MMBA, 	Education Code 	section 88137 and
the 	City Charter. 	Local 	261 	cites 	in particular the 	following
underlined 	language 	found 	in EERA at 	section 	3540:
It 	is 	the purpose of 	this 	chapter to promote
the 	improvement 	of 	personnel 	management 	and
employer-employee 	relations 	within 	the 	public
school 	systems 	in the 	State 	of 	California by
providing 	a uniform basis 	for 	recognizing 	the
21Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment Relations Board 	(EERB).
14

right 	of public 	school 	employees 	to 	join
organizations 	of 	their own choice, 	to be
represented by 	the 	organizations 	in 	their
professional 	and 	employment 	relationships
with public 	school 	employers, 	to select 	one
employee 	organization as 	the 	exclusive
-representative 	of 	the 	employees 	in an
appropriate unit, 	and 	to afford certificated
employees 	a voice 	in the 	formulation of
educational 	policy.
According to Local 	261, 	denial 	of 	its petition would result
in one of 	two outcomes violative of 	EERA section 3540: 	either
employees 	would be 	denied 	the 	right 	of 	representation with 	the
public 	school 	employer, 	or employees would be placed 	in a unit 	at
SFCCD 	different 	than 	their 	City unit 	and with 	representation by a
different 	exclusive 	representative.
The first result, 	according to Local 261, 	would flow from
the 	fact 	that 	Local 	261 	does not wish to 	represent 	all 	currently
unrepresented SFCCD 	employees 	and Local 	790 	has 	not 	sought 	to
amend 	its 	SFCCD unit 	to 	include 	them. 	The alternative 	result, 	to
place 	gardeners 	and other building 	trades 	employees 	in either a
single unit or the Local 	790 unit, 	would result 	in 	"dual"
representation, 	not 	the 	representation by a single exclusive
representative 	required under 	EERA.
Local 	261 	also 	cites 	EERA22 for the proposition that 	denial
22Here, 	Local 261 cites the following language, 	also
contained 	in Government 	Code 	section 3540:
This 	chapter shall 	not 	supersede 	other
provisions 	of 	the Education Code and the
rules 	and 	regulations 	of 	public 	school
employers 	which 	establish and 	regulate 	tenure
or a merit 	or 	civil 	service 	system or which
provide 	for other methods 	of 	administering
employer-employee relations, 	so long as 	the
rules 	and regulations 	or other methods 	of 	the
15

of 	its 	petition would be violative 	of 	the proscription against
EERA's 	supersession of 	the Education Code, 	particularly Education
Code section 88137.
public 	school 	employer do not 	conflict 	with
lawful 	collective agreements.
Local 	261 	dismisses 	the 	Employer's 	efficiency of 	operations
arguments, 	and concerns 	over the possible proliferation of 	small
units 	of 	crafts employees, 	as 	speculative and unpersuasive.
Local 	261 argues, 	however, 	that efficiency concerns 	should be
considered, 	in the 	sense 	that 	failure 	to 	find their unit
appropriate 	would 	result 	in 	confusion and 	inefficiency 	for 	the
SFCCD and 	City,23 exclusive 	representatives 	and employees 	due 	to
the placement 	of 	employees 	in two bargaining units with the 	two
employers 	with different 	representatives.
Employer
The 	Employer's 	opposition 	to 	the petitioned-for unit 	is
organized around five themes: 	1) 	the proposed unit 	is
inappropriate; 	2) 	efficiency of operations considerations; 	3) 	the
special 	status 	of 	the City and SFCCD as 	joint 	employers 	does 	not
require such a small unit; 	4) 	denial 	of the petition will not
deny representation rights to employees; 	and 5) 	Local 261 should
be 	disqualified 	from representing 	the unit 	even 	if 	it 	is
approved.
Concerning unit 	appropriateness, 	the 	Employer relies 	upon
Sweetwater and Compton Unified School 	District 	(1979) 	PERB
23PERB lacks 	jurisdiction over the 	City, 	and no 	consideration
will 	be given to potential 	efficiency of 	operations 	concerns 	of
the City.
16

Decision No. 	109 	(Compton) 	for the proposition that small, 	narrow
- -
units 	will 	be 	approved only where 	a distinct 	and 	separate
community of 	interest 	is 	demonstrated. 	The 	Employer argues 	that
Local 	261 	has 	failed 	to 	establish a 	distinct 	and 	separate
community 	of 	interest 	among 	the 	gardeners 	which would be
sufficient 	to overcome 	the presumption set 	forth 	in Sweetwater.
Compton, 	et al.
The Employer notes 	that, 	in Foothill-DeAnza Community
College District 	(1977) 	EERB Decision No. 	10 	(Foothill), 	the
Board 	found a 	"skilled crafts 	and maintenance" 	unit 	appropriate
based 	on 	the 	separate 	community 	of 	interest 	and 	functional
relationships 	of 	those employees. 	Drawing a parallel 	with
Foothill, 	the Employer argues 	that 	its gardeners and crafts
employees 	share 	similar training, 	have a 	common 	functionality
(maintenance of 	the physical 	environment), 	and have 	in common
their use 	of 	equipment 	and machinery and 	skilled work with 	their
hands. 	The Employer also points 	to the shared hours, 	similar
working 	conditions 	and common lines 	of 	supervision of 	gardeners
and building 	trades 	employees.
Second, 	the Employer contends 	that approval 	of 	the 	requested
unit would create serious 	operational 	inefficiencies. 	In part,
this argument 	rests 	on the assumption that approval 	of 	a unit 	of
gardeners would open the 	door to 	creation of 	up 	to 	seven
additional 	units 	at 	SFCCD, 	each numbering 	from two 	to nine
employees. 	SFCCD points 	to the significant amount 	of 	time
already 	required 	for 	negotiations 	and 	related activities 	with
three 	exclusive 	representatives, 	and the 	limited resources
• 17

available within the Employer's 	employee 	relations 	office, 	and
posits 	that 	creation of 	these 	additional 	units would place a
severe burden on the 	Employer. 	The Employer also argues 	that 	the
released time 	of unit 	employees 	for negotiations24 in so many
units 	would unduly 	strain 	the 	Employer's 	resources 	and negatively
affect 	the maintenance operations 	themselves. 	The Employer also
cites 	the 	experience 	of 	SFUSD25 and the City26 in dealing with
multiple units 	in support 	of 	its 	thesis 	concerning 	the 	efficiency
of 	operations 	issue.
Third, 	the 	Employer contends 	that 	the 	relationship between
the 	City and SFCCD does 	not 	require approval 	of 	the unit 	sought
by Local 	261. 	While acknowledging 	that 	"[m]any of 	the 	terms 	and
conditions 	of 	employment 	of 	[SFCCD's 	classified employees] 	are
determined by provisions 	of 	the 	Charter of 	the 	City 	or by
collective bargaining between 	the 	City and 	its 	employee
24BERA provides at section 3543.1 (c) 	as follows:
(c) 	A reasonable number of 	representatives
of 	an 	exclusive 	representative 	shall 	have 	the
right 	to 	receive 	reasonable periods 	of
released 	time without 	loss 	of 	compensation
when meeting and negotiating 	and 	for 	the
processing of grievances.
25Dr. 	Bruce Julian, 	negotiator for SFUSD, 	testified about the
experience 	in 	that 	district 	where 	the 	employer has 	granted
voluntary recognition to separate units 	of gardeners, 	painters
and carpenters. 	He 	offered his 	opinion 	that 	the SFUSD's
efficiency 	interest 	would be 	better 	served by a 	single 	skilled
crafts 	bargaining unit.
26Claude Everhart, 	former executive deputy mayor of 	the City,
testified 	concerning 	the problems 	the 	City 	faced 	in 	its 	labor
relations 	due 	to 	the proliferation of units 	and representatives.
He 	opined that 	the City's 	interests, 	and collective bargaining,
would be 	better 	served by a more 	rational 	structure 	with 	fewer
bargaining units.
18
24EERA

organizations," 	and 	that 	SFCCD's 	authority over 	these 	employees
is 	"circumscribed," 	the Employer asserts 	that 	its 	status as a
public 	school 	employer under EERA is 	controlling 	in 	this 	case.
(Employer's Brief at p. 	26.) 	The Employer notes 	that 	Education
Code 	section 	88137 	places 	its 	classified employees 	under 	the
City's 	civil 	service 	system, 	not 	the ERO or the MMBA. 	The
Employer 	contends 	that 	the 	role 	of 	the 	CSC vis-a-vis 	the 	SFCCD 	is
analogous 	to 	that 	of 	a personnel 	commission to 	the governing
board 	of 	a merit 	system community 	college 	district 	under
Education Code 	section 88080 	et 	seq., 	but 	that 	this 	relationship
is not 	relevant 	to unit determination for SFCCD's 	employees. 	The
Employer also 	rejects 	the notion that 	there 	is 	any parallelism
between Local 	261's 	City unit 	and the unit 	sought 	here, 	noting
that 	Unit 	1-N 	includes 	over 	800 	employees 	in 	30-plus 	varied
classifications 	while 	the proposed unit 	would 	include 	only 	8
employees 	in 2 	classifications.
-
The 	Employer disputes 	Local 	261's 	contention that 	denial 	of
the 	instant 	petition would deny 	representation 	rights 	to
gardeners. 	The Employer finds no bar to 	its 	employees having
separate 	representation by 	two 	different 	employee 	organizations
for purposes 	of 	negotiations with the 	City and 	itself. 	The
Employer announces 	its 	readiness 	to agree 	either to 	the accretion
of gardeners 	to Local 	790's unit, 	or to the establishment of a
19

single unit 	of 	the 	"building and trades" 	classifications 	now
unrepresented.27
Finally, 	the Employer opines 	that 	Local 	261's 	representation
of 	supervisory employees, 	at 	the 	SFUSD and 	in City Unit 	1-N,
disqualifies 	Local 	261 	from representing 	the unit 	it 	seeks 	here,
even if 	the unit 	is approved. 	The Employer cites 	the prohibition
in EERA, 	at Government Code section 3545(b)(2), 	as 	interpreted in
Los Angeles Unified School District v. 	Public 	Employment
Relations Board 	(July 1986) 	191 	Cal.App.3d 551 	[237 	Cal.Rptr.
278] 	(LAUSD),28 against the 	"same employee organization"
representing both 	supervisory and 	rank-and-file 	employees. 	The
Employer acknowledges 	that 	the MMBA allows 	the 	inclusion 	of
supervisors 	and the 	employees 	they supervise 	in the 	same unit,
but 	contends 	that 	the policy 	interests 	expressed 	in EERA at
section 	3545(b)(2) 	apply not 	only where 	the 	supervisory employees
and rank-and-file 	employees work 	for the 	same 	employer, 	but 	also
where, 	as argued here by Local 	261, 	there is 	such a close
relationship 	among 	the 	two 	employers 	and 	their 	employees.
As a part 	of 	this 	latter argument, 	the Employer asserts 	that
Local 	261 	and 	the 	other unions 	representing 	City and SFCCD
building trades employees are, 	using the LAUSD test, 	the 	"same
27The 	Employer cites 	the testimony of David Daneluz, 	a
representative of Teamsters Local 216, 	concerning the Teamsters'
interest 	in representing 	such a unit 	at 	SFCCD.
28In brief, 	this 	case holds 	that a local 	of 	the Service
Employees 	International 	Union 	(SEIU) 	may not 	represent
supervisory 	classified employees 	of 	a 	school 	district where
another local 	of 	SEIU represents 	the 	rank-and-file 	employees 	of
the district.
20

employee 	organization" 	because 	they share affiliation with
international 	unions 	which 	are 	affiliated with 	the AFL-CIO 	and
they are members 	of 	the 	San Francisco Building Trades 	Council.
The 	Employer also 	relies 	on this premise 	to argue 	that 	the
gardeners 	should be 	considered as belonging 	to 	the 	same 	employee
organization as 	other building 	trades 	employees 	for purposes 	of
analysis 	of 	the 	statutory criteria.
ISSUE
Is 	a unit 	including 	only 	the 	gardeners 	and nursery
specialist29 at 	SFCCD appropriate under EERA?
DISCUSSION
In each unit determination case, 	the Board is bound to
follow the 	criteria set 	forth 	in EERA at 	section 3545(a):
(a) 	In each case where 	the appropriateness
of 	the unit 	is an issue, 	the board shall
decide 	the question on the basis 	of 	the
community 	of 	interest 	between and among 	the
employees 	and 	their 	established practices
including, 	among other things, 	the extent to
which 	such employees belong 	to 	the 	same
employee organization, 	and the effect 	of 	the
size 	of 	the unit 	on the 	efficient 	operation
of 	the 	school 	district.
The Board 	ruled early 	in 	its 	history that 	it must 	in each case
determine 	the 	"appropriateness" 	of 	a unit without being 	limited
only to a choice between 	"an" 	or the 	"most" 	appropriate unit, 	and
must 	in each 	case weigh and balance 	the 	statutory 	criteria 	in
29The question of placement 	of 	the position of 	assistant
gardener supervisor 	is not 	at 	issue because 	the position 	is
vacant 	and because 	no 	evidence 	other than 	the 	job description was
introduced 	into 	evidence 	concerning 	the duties 	of 	the position.
(See Marin Community College District 	(1978) 	PERB Decision No. 	55
and Mendocino Community College District 	(1981) 	PERB Decision No.
144a.)
21

order 	to 	achieve 	consistency of 	application and 	the 	general
objectives 	of 	EERA. 	(Antioch Unified School District 	(1977) 	EERB
Decision No. 	37 	(Antioch); 	see also Marin Community College
District, 	supra.)
In Sweetwater, 	the Board announced its preference 	for three
units of 	classified employees: 	instructional aides; 	office-
technical 	and business 	services; 	and operations 	and support
services. 	The 	significance of 	the Sweetwater 	"preferred" 	units
was 	further explained 	in 	Compton where 	the 	Board held that
a variant 	unit 	will 	not 	be awarded unless 	it
is more 	appropriate 	than 	the 	Sweetwater unit
based 	on a 	separate 	and distinct 	community 	of
interest 	among 	employees 	in 	the variant 	unit
or other section 3545(a) 	criteria. 	(Emphasis
added; 	footnote omitted.)
In Compton, 	the Board rejected a 	separate unit 	for skilled crafts
employees, 	and 	included them with the 	operations 	and 	support
services unit, 	despite a petitioner's 	demonstration of 	84 percent
membership among 	the 	skilled crafts 	employees.
In later denying a unit 	of hourly bus drivers, 	where other
bus 	drivers 	were 	already 	included 	in the 	operations 	and 	support
services unit, 	the Board noted that:
Every 	classification possesses 	a 	community of
interest among its members. 	Janitors,
undisputably, 	have more 	in common with other
janitors 	than they do with gardeners, 	but we
have yet 	to 	find a separate unit 	of 	only
janitors appropriate, 	absent unusual
circumstances. 	(San Diego Unified School
District 	(1981) 	PERB Decision No. 	170 	(San
Diego).)
Thus, 	in light 	of PERB precedent, 	the questions posed by the
instant case are: 	(1) 	Does 	the record support a finding that 	the
22

SFCCD gardeners 	share a 	"separate and distinct" 	community of
interest 	which warrants 	their 	inclusion 	in a separate unit, 	and
(2) 	does 	this 	case present 	"unusual 	circumstances" 	warranting
approval 	of 	a 	separate unit 	of 	gardeners?
Community 	of 	Interest
Like 	the hypothetical 	janitors 	in San Diego. 	SFCCD's
gardeners 	share 	a 	community 	of 	interest 	derived 	from common 	job
functions, 	supervision, 	hours of work, 	frequency of contact, 	and
wages, 	benefits and working conditions. 	The nursery specialist
does not 	fit 	the gardeners' 	profile perfectly, 	but the
similarities 	(especially in terms 	of 	training, 	job 	functions 	and
working 	conditions) 	are 	sufficient 	to 	outweigh any distinctions.
The 	gardeners 	and nursery 	specialist 	also have 	in 	common
their membership 	in Local 	261 	and 	their 	representation by Local
261 	before 	the 	CSC and 	in City negotiations 	under 	the MMBA.
However, 	it 	is necessary to also consider the 	indicia of 	the
gardeners' 	community of 	interest with the 	other unrepresented
employees at SFCCD. 	Like the gardeners, 	the truck drivers,
electricians, 	carpenters, 	etc., 	are under the City civil service
system, 	and have 	representation under MMBA and 	the 	ERO 	in sub-
units 	created under the 	"umbrella" 	of 	the ERO's Unit 	1.
While, 	unlike the skilled crafts employees, 	neither the
truck drivers 	or gardeners 	are 	required 	to pass 	a 	formal
apprenticeship, 	the gardeners 	(and nursery specialist) 	are
subject 	to a 	formal 	education/training 	requirement. 	All 	of 	the
unrepresented employees 	(except 	the nursery specialist) 	are
involved in maintenance 	of 	the physical plant of 	the SFCCD, 	work
23

with 	their hands 	and with 	tools, 	perform both 	skilled and
unskilled manual 	labor, 	exercise independent judgment, 	have
similar health and safety concerns, 	are 	subordinates 	of 	the
building and grounds 	superintendent, 	work 	together on 	occasion 	in
the performance of 	their duties, 	and most work both indoors and
outdoors. 	There are, 	in sum, 	sufficient 	common factors among the
unrepresented 	classified 	employees 	to 	find 	that 	the 	gardeners 	and
nursery 	specialist 	do not 	have 	a 	"separate 	and distinct"
community of 	interest.30
"Unusual 	Circumstances" 	Standard
The unusual 	circumstance 	in this 	case derives 	from the 	joint
employer 	relationship between the 	City and SFCCD, 	and the 	fact
that 	the gardeners' 	conditions 	of 	employment are determined by,
some mix of 	decision-making by the 	CSC, 	the 	SFCCD 	itself 	and
negotiations between Local 	261 	and 	the 	City. 	Local 	261 	submits
that 	this unusual 	circumstance requires approval 	of 	its unit, 	as
the 	only alternative 	is 	a 	scheme where 	SFCCD employees 	have dual
representation.
30In reaching this 	conclusion, 	no credence 	is given to the
Employer's 	assertion 	that 	the 	"same 	employee 	organization"
represents 	these 	employees under the City ERO. 	Neither case 	law,
nor the 	record of 	this 	case, 	supports 	the 	conclusion that 	the
affiliation of 	local unions with a central 	labor council, 	or with
international 	unions 	which are 	in turn affiliated with 	the AFL-
CIO, 	is 	sufficient 	to bring them within the definition of 	"same
employee organization" 	set 	forth in LAUSD. 	For example, 	the
Constitution and By-Laws 	of 	the 	San 	Francisco Building Trades
Council, 	at Article 	IX, 	provides in pertinent part as 	follows:
Affiliated 	National 	and 	International 	Unions
have 	autonomy 	over 	the 	conduct 	of 	their
respective 	Local 	Unions 	and members. 	. . . "
(Employer Exhibit No. 	15.)
24

Local 	261 	first 	argues 	that 	dual 	representation would
violate 	the 	statutory 	right 	of 	employees 	to a 	single 	exclusive
representative. 	Local 	261 	asserts 	that UPE 	"contemplated the
same union representing 	the 	same 	employees 	at both of 	the 	joint
employers." 	(Petitioner's Brief at p. 	17, 	emphasis 	in original,
citing UPE at pp. 	1131-1132.)
Local 	261 	further contends 	that 	such dual 	representation
would result 	in confusion among employees, 	employee 	organizations
and employers 	as 	to 	the proper 	forum for dispute 	resolution, 	and
impair the 	efficiency of 	operation of 	the 	joint 	employers.
Petitioner's 	reliance 	on UPE 	is 	not persuasive 	in this
context, 	however. 	The 	facts before 	the UPE 	court 	involved an
issue 	arising where 	Local 	790 	represented 	the 	employees 	involved
with both 	the 	City and SFCCD. 	The 	court's 	reference 	to 	this 	fact
does 	not 	equate 	with a 	requirement 	for 	such 	"parallelism" 	in
every 	case 	concerning 	these 	two 	employers.
Petitioner's 	reliance 	on 	the 	"single 	exclusive
representative" 	language 	in EERA is 	similarly unpersuasive.
Petitioner attempts 	to 	stretch 	the meaning 	of 	provisions 	which
apply 	only 	to 	employer-employee 	relationships 	in public 	schools
to a situation where, 	as here, 	there are employees who fall under
the provisions 	of both EERA and the MMBA. 	UPE holds 	that 	SFCCD
is 	a public 	school 	employer subject 	to both the 	EERA and the
City's 	civil 	service 	system. 	UPE does not, 	as noted by the
Employer, 	require 	that 	the 	SFCCD be 	covered by 	the 	City ERO.
Contrary to Local 261's arguments, 	EERA does not preclude,
in every case, 	an employee's placement 	in more 	than one
-
-
-
25

bargaining unit. 	An 	employee 	holding 	two positions 	with 	the 	same
employer, 	e.g., 	part-time 	instructional 	aide and part-time bus
driver, 	might well 	be 	included 	in two 	separate bargaining units
represented by 	two different 	exclusive 	representatives. 	Such a
situation might 	result 	in the 	employee paying dues 	to 	two unions,
and might 	even result 	in some 	confusion, 	but 	the 	result 	is not
contrary to EERA's 	general 	provision of 	the 	right 	of 	employees 	to
have 	a 	single 	exclusive 	representative.31
The 	issue here, 	of 	course, 	does not 	involve placement of
employees 	in two units of 	the 	same 	employer. 	If 	the 	Employer's
position were adopted, 	SFCCD's 	employees would still 	be placed in
only one bargaining unit 	of 	the public 	school 	employer; 	the 	fact
that 	they are 	also 	included 	in a bargaining unit 	with 	the 	City,
even 	if potentially represented by a different union, 	is
ultimately not 	relevant 	to 	the unit 	determination decision.
Local 	261's 	expressed 	concerns 	about 	confusion and
inefficiency 	which would 	accompany 	dual 	representation 	are 	not
supported by 	the 	record. 	Local 	790 	has 	since 	1986 	represented a
significant 	number of 	SFCCD 	employees 	who have 	representation by
a different union with the 	City. 	There 	is 	no evidence 	that 	this
situation has 	caused any 	difficulty 	or 	confusion 	for 	the
employees, 	employers 	or employee organizations. 	The Employer and
31See Unit Determination 	for Employees 	of 	the 	State 	of
California 	(1981) 	PERB Decision No. 	ll0d-S, 	Oakland Unified
School District 	(1983) 	PERB Decision No. 	320, 	and Berea
Publishing Co. 	(1963) 	140 NLRB 516 	[52 LRRM 1051]. 	The instant
case 	is 	admittedly distinguishable 	in that 	the 	employees 	are not
"dual 	function" 	employees of a single employer, 	but 	the analysis
is analogous.
26

any employee 	organization 	representing 	its 	classified 	employees
will 	have 	to 	reconcile 	the means 	and 	forum for 	resolution of
certain 	issues 	given the 	interrelationships 	among 	the 	civil
service 	system, 	City negotiations 	and the 	SFCCD's 	own collective
bargaining obligations under EERA, 	but 	the Board, 	in determining
the appropriateness 	of a unit, 	is bound to consider only the
criteria 	set 	forth 	in EERA.
The Applicability 	of 	Sweetwater
Local 	261 	argues 	that 	the 	Sweetwater presumption 	is
inapplicable to the 	instant 	case, 	in part because Sweetwater
units 	cannot 	be 	established as 	a 	consequence 	of 	the 	Employer's
earlier agreement 	to 	a non-Sweetwater unit 	requested by Local
790. 	The Employer responds 	that 	its agreement 	to consolidate 	the
three 	Sweetwater units 	into one, 	in order to promote 	efficiency
of 	operations, 	should not work to its detriment.32
The 	Local 	79 0 unit 	includes 	such classifications as
custodian, 	school 	lunchroom cook and warehouse worker, 	and
32As 	noted above, 	the unit 	now represented by Local 	790 	with
the 	Employer 	is 	the 	result 	of a voluntary agreement 	and
recognition. 	In Redondo Beach City School District 	(1980) 	PERB
Decision No. 	114, 	the Board held that:
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 	. 	. 	. 	lightly.
The policy interests 	thus 	expressed mean that, 	in a 	case 	such as
the 	instant matter, 	the determination of an appropriate unit must
be made with 	consideration only of 	those 	classifications 	not
already placed 	in a unit.
27

therefore makes 	establishment 	of 	a pure 	Sweetwater 	operations 	and
support 	services unit 	impossible 	in the 	instant 	case 	and
difficult 	under any circumstance. 	This 	situation does 	not,
however, 	render Sweetwater and other Board precedent,
inapplicable. 	It 	is worth noting, 	too, 	that not all units
approved under 	Sweetwater 	look 	exactly alike.33
Efficiency 	of 	Operations
As noted by the Employer, 	creation of a residual unit
including 	all 	the 	unrepresented building 	trades 	classifications
would 	result 	in 	two 	classified bargaining units 	for SFCCD.
Implicit 	in the 	Employer's 	argument 	is 	that 	such an outcome 	is
close 	enough 	to 	the 	three unit 	configuration preferred under
Sweetwater 	that 	it 	should be 	favored over 	the 	result 	sought 	by
Local 	261, 	and that 	it reflects 	the proper weighing and balancing
of 	unit 	criteria 	discussed 	in Antioch.
The 	Employer's 	concerns 	over the potential 	impact 	on 	its
efficiency 	of 	operations 	from a proliferation of 	small 	units 	of
building 	trades 	employees 	cannot be 	dismissed as 	"speculative."
A finding 	in 	the 	instant 	case 	that 	the 	gardeners 	have 	a 	separate
and distinct 	community of 	interest, 	sufficient 	to warrant 	a
separate unit, 	would make 	it 	extremely difficult 	to deny similar
(i.e., 	separate) 	units to other building trades groups who
clearly share 	the 	"unusual 	circumstances" 	of gardeners. 	The 	fact
that petitions 	for 	such units 	are not 	now pending does 	not 	negate
33For example, 	the operations and support 	services units
approved 	in 	Sweetwater and 	Compton 	differed 	in 	that 	the 	latter
did not 	include 	food service workers. 	Also, 	the Board approved a
unit 	of 	skilled 	crafts 	and maintenance 	employees 	in Foothill.
- -
28

the 	Employer's 	concern over proliferation.34 The 	evidence
presented by 	the 	Employer 	supports 	a 	finding 	that 	a proliferation
of units 	would have adverse 	impact. 	This 	factor must be weighed
and balanced 	alongside 	the 	other 	statutory 	criteria.
Disqualification 	of 	Local 	261
The 	Employer's 	contention 	that 	Local 	261 	would be
disqualified under 	EERA section 	3545(b)(2) 	from representing 	the
unit 	it seeks 	is not, 	in any respect, 	persuasive. 	The Employer's
theory 	rests 	on 	the 	alleged 	supervisory 	status 	of 	one position
currently 	represented by Local 	261 	at 	SFUSD, 	the 	inclusion of
supervisory positions 	as 	allowed under 	the MMBA 	in 	City Unit 	1-N,
and 	the 	statutory prohibition against 	the 	"same 	employee
organization" 	representing 	both 	supervisory 	and 	rank-and-file
employees.
As 	discussed in LAUSD, 	the 	legislative 	intent behind EERA
section 3545(b)(2) 	included
. 	. 	. 	the prevention of situations in which
the 	loyalty of 	supervisors might be divided
between management 	and 	rank-and-file,
nonsupervisory, 	employees. 	(LAUSD at p. 	556,
citing 	Sacramento 	City Unified 	School
District 	(1980) 	PERB Decision No. 	122.)
The 	statutory prohibition does 	not 	on its 	face, 	and has 	never
been interpreted to, 	bar an employee 	organization 	from
representing 	rank-and-file 	employees 	with 	one 	employer and
supervisory employees 	of 	a different 	employer.
34According to PERB's 	case 	files, 	at 	least 	one 	such unit was
previously sought. 	In Case No. 	SF-R-639, 	a request 	for
recognition was 	filed 	for a 	separate unit 	of 	SFCCD's 	carpenters,
but 	was 	later withdrawn.
29

The 	logical 	extension of 	the Employer's 	theory, 	combined
with 	the 	earlier-described 	theory as 	to 	the 	"same 	employee
organization" 	status 	of all AFL-CIO affiliates, 	would mean that
all 	AFL-CIO unions 	would be barred 	from representing 	any 	rank-
and-file 	employees 	under EERA if 	any other AFL-CIO union
represented a 	single 	supervisory unit. 	Such an extreme 	result
could not 	have been 	intended by 	the 	Legislature.35
Since 	the 	Employer does 	not 	allege 	that 	any 	supervisory
positions 	are 	included among 	the 	eight 	gardener 	and nursery
specialist positions petitioned 	for by Local 	261,36 the
limitations 	set 	forth 	in section 3545(b)(2) 	are 	simply not
relevant 	to this 	case.
In sum, 	the 	record in this 	case 	supports a 	finding that
Local 	261 	is 	an employee 	organization as 	defined by EERA, 	and 	is
eligible 	to 	represent 	a unit 	of 	rank-and-file 	employees 	at 	SFCCD.
35See, 	e.g., 	Westminster School District 	(1977) 	EERB Decision
No. 	42 	and Inglewood Unified School District 	(1991) 	PERB Order
No. 	Ad-222.
36It 	is 	also noted that 	the 	Employer's 	allegation 	concerning
the 	inclusion of 	supervisors 	in Local 	261's 	SFUSD unit 	is merely
that, 	an allegation. 	No party with standing to raise 	the 	issue
of 	supervisory status 	of 	any position in that unit 	has 	done 	so,
the 	SFCCD lacks 	standing 	to do 	so, 	and PERB has made no such
determination. 	Further, 	PERB lacks 	jurisdiction to determine
whether 	employees 	under 	the MMBA are 	supervisory 	employees 	based
on EERA's 	definition of 	that 	term.
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Unit 	Determination
Given 	the 	above-discussed 	reasons 	why 	the 	Local 	261 	petition
cannot be 	granted, 	the question remaining 	is whether any unit
should be 	ordered at 	this 	time.37
As 	noted by 	the 	Board 	in 	State 	of 	California 	(Department 	of
Personnel Administration) 	(1989) 	PERB Decision No. 	773-S",
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.
The Petitioner acknowledges 	in its brief 	(p. 	18) 	that 	PERB
has 	this 	authority and that 	one 	alternative presented 	in 	this
case 	is placement 	of 	the 	gardeners 	in a unit with the 	other
unrepresented building 	trades 	classifications.38 The 	Employer
has 	also proposed as 	an alternative 	that 	all 	of 	the unrepresented
building 	trades 	classifications 	be placed 	in one unit.39
As 	discussed above, 	employees 	in the building 	trades
classifications 	share 	similar and often 	related 	job 	functions,
work under 	common 	supervision and working 	conditions, 	and have 	in
common 	similar 	training 	and 	their work with 	tools 	and 	equipment.
The nursery specialist, 	as also earlier noted, 	differs 	in several
37Local 	261 	correctly notes 	that, 	absent 	Local 	790's
petitioning, 	the gardeners 	cannot be accreted to the Local 	79 0
unit.
38The 	Petitioner continues 	to oppose 	its 	establishment,
however, 	and goes 	on to disavow any 	interest 	in representing 	such
a unit 	(p. 	19).
39No weight 	is placed on the 	testimony concerning 	the
Teamsters' 	interest 	in representing such a unit. 	Neither that
organization 	or any 	other has 	filed a petition 	for 	the unit.
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respects 	but 	shares 	sufficient 	similarity with 	the 	gardeners
otherwise 	to be 	appropriately 	treated as 	a part 	of 	this 	grouping.
These 	employees 	also have 	in 	common 	similar unit 	treatment 	for
negotiations under the City's 	ERO, 	and are 	treated similarly 	for
purposes 	of 	salary setting under recommendations 	of 	the 	CSC.
Establishment 	of 	a unit 	including all 	of 	the 	currently
unrepresented 	classified 	employees 	would 	also 	comport 	with 	the
efficiency of 	operations 	concerns 	of 	the 	Employer. 	A single unit
of 	all 	building 	trades 	classifications 	is 	also 	consistent with
relevant 	PERB precedent, 	including Sweetwater and Foothill. 	Such
a unit 	would 	differ 	from that 	found appropriate 	in 	Foothill 	only
by the 	omission of 	custodians 	and warehouse workers, 	and those
classifications 	are not properly at 	issue here 	due 	to 	their
inclusion 	in 	the 	unit 	now represented by Local 	790.
Based on 	the 	efficiency 	of 	operations 	and 	community of
interest 	factors 	discussed above, 	including 	the 	common job
functions, 	supervision and working conditions, 	as well as 	their
common unit 	treatment 	under 	the 	City 	collective bargaining
scheme, 	it 	is 	determined that a single unit 	comprised of 	the
building 	trades 	classifications 	at 	SFCCD 	is 	an appropriate unit
for 	representation purposes 	under 	the 	EERA.
CONCLUSION AND 	ORDER
For the 	reasons 	discussed above, 	and 	in 	consideration of 	the
entire 	record 	in this proceeding, 	it 	is hereby ORDERED that a
unit 	comprised of 	the building 	trades 	classifications 	now
unrepresented at 	SFCCD, 	including 	the 	gardeners 	and nursery
specialist, 	is an appropriate unit 	for purposes 	of meeting and
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conferring under EERA, 	provided an 	employee 	organization becomes
the 	exclusive 	representative. 	The unit 	shall 	include 	the
classifications of gardener, 	nursery specialist, 	painter, 	painter
supervisor I, 	electrician, 	plumber, 	steamfitter, 	stationary
engineer, 	truck driver, 	locksmith and carpenter, 	and shall
exclude all 	other employees, 	including management, 	supervisory
and 	confidential 	employees.
Pursuant 	to PERB Regulation 33470, 	Local 261 	shall have 	15
workdays 	from the date 	of 	issuance 	of 	a 	final 	decision 	in this
case 	to demonstrate, 	to the satisfaction of 	the 	regional
director, 	at 	least 	30 percent 	support 	in the unit described as
appropriate. 	An election 	shall 	be 	scheduled and 	conducted by
PERB 	if 	such evidence of 	employee 	support 	is demonstrated, 	unless
the 	Petitioner demonstrates 	proof 	of majority support 	and 	the
Employer grants voluntary recognition. 	(PERB Regulations 	33470
and 	33480.)
If proof 	of 	at 	least 	30 	percent 	support 	is 	not provided by
Local 	261, 	the Local 	261 petition shall be dismissed.
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
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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is 	considered 	"filed" 	when
33

actually 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 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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 Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Les 	Chisholm
Hearing 	Officer
34