Fish and Game Wardens Association (California State Employees Association) (PERB A060S)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
FISH
	AND 	GAME
	WARDENS
	ASSOCIATION,
Employee
	Organization,
and
CALIFORNIA
	STATE
	EMPLOYEES'
	ASSOCIATION,
Employee
	Organization.
)
)
)	
Case
	No.
	S-R-27-S
PERB
	Order
	No. 	Ad-60-S
Administrative
	Appeal
March
	9,
	1979
)
)
)
)
)
)
_______________________ )
Appearances:	
Christopher
	Lee,
	Attorney
	for
	Fish
	and
	Game
Wardens
	Association;
	Loren 	E. 	McMaster,
	Attorney 	for
	California
State
	Employees'
	Association.
Before 	Gluck,
	Chairperson;
	Gonzales,
	Member.
DECISION
This 	case
	comes
	before 	the 	Public
	Employment
	Relations
Board
	(hereafter
	PERB
	or
	Board) 	on 	a
	challenge
	by
	the 	Fish
	and
Game
	Wardens
	Association 	(hereafter
	FGWA)
	to
	a
	petition
	to
determine
	an
	appropriate 	unit 	filed
	by
	California 	State
Employees'
	Association 	(hereafter
	CSEA).
	For
	the 	reasons
stated
	below,
	the
	Board
	dismisses
	FGWA's
	challenge.
FACTS
Pursuant 	to
	PERB
	rule
	41010,1 	both
	CSEA
	and
	FGWA
	timely
filed 	petitions
	to 	determine
	an
	appropriate 	unit.
	CSEA
petitioned
	for
	a 	"Law
	Enforcement, 	Public 	Safety
	and
	Regulatory
lPERB
	rules 	are 	codified 	at 	California AdministrativeCode,
	title
	8, 	section
	32000
	et 	seq.
	Rule 	41010
	sets 	forth 	the
requirements 	for 	filing 	petitions 	to 	determine 	an
	appropriate
unit.

unit" 	consisting
	of,
	but
	not
	limited
	to,
	state
	park
	rangers,
state
	forest
	rangers,
	foresters, 	firefighters,
	security
	guards,
fish
	and 	game
	wardens,
	criminal
	intelligence
	specialists,
special
	agents
	(DOJ),
	insurance
	officers
	and
	tax
representatives.
	FGWA
	petitioned
	for
	an
	overlapping
	unit
consisting
	of
	all
	sworn
	peace
	officer
	personnel
	of
	the
Department
	of 	Fish
	and 	Game.
FGWA
	then
	challenged
	CSEA's
	petition
	on
	three
	grounds:
(1) 	The
	proposed
	unit
	does
	not
	meet
	the
	criteria
	set
	forth 	in
section
	3521
	of
	the
	State
	Employer-Employee
	Relations
	Act
(hereafter
	SEERA);2 	(2)
	CSEA
	does 	not
	have
	the 	support
	of
30
	percent 	of 	the
	public
	safety
	officers
	of 	the
	Department
	of
Fish
	and 	Game; 	and 	(3) 	The
	public
	safety
	employees
	in
	the
Department
	of 	Fish
	and
	Game
	have
	"separate
	and
	non-parallel
functions
	which
	are
	unique
	to
	that
	Department	
"
DISCUSSION
The 	Board
	finds
	FGWA's
	challenge 	to
	be
	inappropriate
	and
without
	merit.
	Pursuant 	to 	section 	3520.5(b),3 	the
	Board
	has
established
	procedures 	for 	determining
	appropriate 	units 	in
2sEERA
	is 	codified 	at
	Government 	Code
	section
	3512
	et
seq. 	All
	statutory 	references 	are 	to 	the
	Government 	Code
unless 	otherwise 	noted. 	Section
	3521
	sets 	forth 	the
	criteria
the
	Board
	shall
	take 	into 	consideration 	in 	determining
	an
appropriate 	unit.
3section
	3520.5(b) 	provides:
The
	board
	shall 	establish 	reasonable
procedures 	for 	petitions
	and
	for 	holding
elections
	and
	determining 	appropriate 	unitspursuant 	to 	subdivision 	(a).
2

state
	employment.4	
Within
	this
	framework,
	PERB
	decides
whether
	or
	not
	a
	petition 	is
	proper;5	
no
	provision
	is
	made
for 	the
	employer
	or
	other
	employee
	organizations 	to
	challenge
the
	validity
	of
	a
	petition.
	In
	contrast,
	PERB
	rule
	410716
sets
	out
	a
	specific
	procedure 	for 	challenges 	to
	the
	status
	of
	a
4see
	PERB
	rules
	41000-41150.
5PERB
	rule
	41050
	provides:
If
	the
	Executive
	Director
	determines
	that
the
	petition
	or 	supplementary 	submission
	is
improperly
	filed
	or
	that
	the 	proof 	ofsupport
	is
	inadequate 	the
	petition 	shall
	be
dismissed.
	The
	petitioner
	may
	file
	an
appeal 	to
	the
	Board
	itself
	within
	10
	days
following
	service 	of 	the
	dismissal 	notice.
6pERB
	rule
	41071
	provides:
(a) 	Any
	challenge 	to
	the
	status
	of
	a
petitioner
	as
	an 	employee
	organizationwithin 	the
	meaning
	of
	Government 	Code
section
	3513(a) 	must
	be
	filed
	within
	15
	days
following
	service 	of
	petitions
	by
	the
Board.
	Any
	challenge
	not
	filed 	at 	this
	time
shall
	be
	waived.
	The 	Board
	shall
	serve
copies 	of
	a
	challenge 	to
	an 	employee
organization's 	status
	upon
	the 	challenged
petitioner.
(b)
	Challenged
	organizations
	shall
	filetheir
	response 	to 	the 	challenge 	to
	their
status
	with 	the
	Board
	itself
	within 	ten
	days
following
	service 	of 	the 	challenge.
(c) 	The 	Board
	itself
	shall
	promptly 	conduct
such
	inquiries, 	investigations
	or 	hearings
necessary 	to 	determine 	the
	status 	of
	a
challenged
	employee
	organization.
(d)
	No
	hearing
	on 	an
	appropriate 	unit 	shall
be
	delayed 	pending 	determination 	of 	the
status 	of
	any
	challenged
	employee
organization.
3

petitioner
	as
	an
	employee
	organization
	as
	defined
	by
	section
3513(a) .7 	This
	rule,
	however,
	is
	inapplicable
	here
	as
	FGWA
makes 	no
	claim
	that
	CSEA
	is
	not
	such
	an
	employee
	organization.
Given
	PERB's
	unit
	determination
	procedures
	under
	SEERA,
	the
Board
	finds
	that
	the
	challenge
	in
	the
	present
	case
	is
inappropriate.
Furthermore,
	FGWA's
	first
	and
	third
	grounds
	for
	challenging
CSEA's
	petition,
	dealing
	with
	the
	appropriateness 	of
	the
	units
requested
	by
	CSEA
	and
	FGWA,
	go
	to
	the
	heart
	of
	what
	the
	Board
itself
	will
	determine
	based
	on
	the 	record
	made
	at
	the
	SEERA
unit
	determination 	hearings.
	The
	appropriate 	place 	for
	FGWA
	to
make
	its
	arguments
	that
	the
	Department
	of
	Fish
	and
	Game
	public
safety 	officers
	form 	a
	separate 	appropriate 	unit
	and
	should 	not
be
	included 	in
	a
	larger
	public
	safety 	unit
	is 	at
	the
	unit
determination 	hearings.
	There,
	FGWA
	also
	has
	a
	full
opportunity 	to 	rebut
	CSEA's
	evidence
	and
	arguments
	in 	support
of 	the
	larger 	unit.
	FGWA
	cannot
	be
	allowed
	to 	short
	circuit
the
	unit 	determination 	process
	by
	challenging
	CSEA's
	petition
on
	the
	basis 	that
	the
	unit 	petitioned
	for
	is
	inappropriate.
Whether
	or 	not
	CSEA
	has
	30
	percent 	support
	among
	the
	public
safety
	employees
	of
	the 	Department
	of 	Fish
	and 	Games
	is
irrelevant
	to 	the
	validity
	of
	its 	petition.
	Neither
	SEERA
	nor
PERB
	rules 	require
	an 	employee
	organization 	to 	demonstrate
7section
	3513(a) 	provides:
"Employee
	organization"
	means 	any
	organization
	which
includes 	employees 	of 	the 	state
	and 	which 	has 	as 	one
of 	its
	primary 	purposes 	representing 	such 	employees 	in
their 	relations 	with 	the 	state.
4

support
	among
	each
	or
	any
	specific
	classification
	included
	in
its
	proposed
	unit,
	and
	FGWA
	provides
	no
	support 	for
	its
	novel
argument
	that
	such
	a
	requirement 	should
	be
	imposea.
	The
	only
requirement
	is
	that
	the
	employee
	organization
	have
	proof
	of
support 	of
	at
	least
	30
	percent 	of
	the
	state
	employees
	in 	the
proposed
	unit.8	
The
	Board
	has
	no
	reason
	to
	doubt
	CSEA's
declaration 	that
	it
	possesses 	proof 	of 	support 	of
	at 	least
30
	percent
	of 	the 	approximately
	8,784 	employees
	in
	its
	proposed
unit.
	Therefore, 	the
	Board
	has
	no
	reason
	to 	dismiss
	CSEA's
petition.
8PERB
	rule
	41010 (b) ( 3) (C)
	provides:
The
	petition 	shall
	contain 	the 	following
information:
. 	. 	. 	. 	. 	. 	. 	. . . 	. 	. 	. 	. 	. 	. .
(3)
	For 	each
	unit 	petitioned 	for;
(C)
	An
	accompanying
	declaration
	executed 	by
the 	authorized
	agent
	of
	the
	employee
organization
	under
	penalty 	of
	perjury
stating 	that
	the
	employee
	organizationpossesses 	to 	the
	best 	of
	its
	knowledge 	and
belief,
	as
	of 	the 	date 	of
	filing
	the
petition,
	proof 	of 	support 	of
	at 	least
30
	percent 	of 	the
	state
	employees
	in 	the
unit
	proposed.
	The
	proof 	of 	support
	shall
be
	maintained
	by
	petitioner
	and 	made
available 	for 	inspection
	during
	normal
working 	hours
	by
	the 	Board. 	(Emphasis
added.)
5

ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
challenge
	by
	the
	Fish
	and
	Game
	Wardens
	Association 	to
	the
petition
	for
	a 	law
	enforcement,
	public
	safety,
	and
	regulatory
unit
	filed
	by
	the
	California 	State
	Employees'
	Association
	is
dismissed.
HarJy
	Gli.fcW,
	Chairperson
6