State of California (State Employees Trade Council) (PERB A138S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
STATE 	EMPLOYEES 	TRADE 	COUNCIL
LOCAL 	1268, 	LIUNA, 	AFL-CIO,
Employee 	Organization,
APPELLANT,
and
STATE 	OF CALIFORNIA,
Employer.
)
)
)
) 	Case 	No. 	S-:-SR-12X
PERB 	Order 	No. 	Ad-138-S
Administrative 	Appeal
May 	20, 	1983
)
)
)
)
)
) 	·
)
)
Appearances: 	Thomas 	E. 	Rankin, 	Attorney 	for 	State Employees
Trade 	Council, 	Local 	1268, 	LIUNA, 	AFL-CIO.
Before 	Gluck, 	Chairperson; 	Tovar 	and 	Burt, 	Members.
DECISION
GLUCK, 	Chairperson: 	The 	State Employees 	Trade 	Council,
Local 	1268, 	LIUNA, 	AFL/CIO 	(SETC) 	appeals 	a 	regional 	director's
denial 	of 	its 	petition 	to 	create 	a 	separate 	unit 	of 	skilled
hydroelectric 	craft 	employees. 	The 	regional 	director 	based 	her
dismissal 	on 	section 	32754(b)l 	of 	the 	Public 	Employment
Relations 	Board's 	(PERB) 	rules 	and 	regulations 	which 	provided
that 	the 	Board 	shall 	dismiss 	petitions 	requiring 	a
representation 	election 	where 	it 	has 	certified 	an 	election
lThe 	rules 	and 	regulations 	of 	the 	Public Emplorment
Relations 	Board 	are 	codified 	at 	the 	California Administrative
Code, 	title 	8, 	section 	31001 	et 	seq. 	At 	the 	time 	SETC 	filed
the 	petition 	the 	rules 	and 	regulations 	of 	July 	1980 	were 	in
effect. 	The 	Board 	has 	subsequently 	amended 	them 	effective

result
	within 	the
	12 months
	precedi~g
	the
	filing
	of 	the
petition.
	The
	petition
	was
	fiied
	on
	September
	11,
	1981,
	just
two 	months
	after
	the
	California 	State
	Employees
	Association
(CSEA) 	won
	the
	election 	to 	represent
	the
	craft
	and
	maintenance
unit
	of
	which
	the
	hydroelectric
	craft
	employees
	are
	a
	part.
September 	20, 	1982.
	Unless
	otherwise
	noted
	all
	references 	areto
	the 	July
	1980
	rules
	and
	regulations.
Section
	32754(b)
	provided:
The 	Board
	shall
	dismiss
	a
	petition
	requiring
a
	representation 	election
	if
	it
	determines
that:
(b) 	Under
	the
	SEERA,
	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 	a
	petition
	requiring
	an
	election,
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; 	or, 	that
	a
	representation 	election
result
	has 	been
	certified 	affecting 	the
described 	unit
	or 	a
	subdivision 	thereof
within 	the
	12 months 	immediately 	preceding
the 	date 	of 	filing 	of 	the
	petition
	...
DISCUSSION
On
	appeal,
	SETC
	argues
	that
	the
	regional
	director
improperly
	relied
	upon
	section
	32754(b)
	contending
	that, 	at
	the
time
	of
	the
	petition's 	filing,
	PERB
	did
	not
	have 	any
	rules
covering
	unit
	modification
	and
	that
	under
	subsection
	352l(b)
(6)
2

of 	the 	State Employer-Employee 	Relations 	Act 	(SEERA) ,2
skilled 	craft 	employees 	have 	the 	right 	to 	a 	separate 	unit 	for
which 	recognition 	can 	be 	granted 	without 	an 	election.
The 	petition 	should 	be 	dismissed. 	Section 	3512 	states 	that
an 	underlying 	purpose 	in 	SEERA's 	passage 	was:
••• 	to 	promote 	the 	improvement 	of
personnel 	management 	and 	employer-employee
relations 	within 	the 	State 	of 	California 	by
providing 	a 	uniform 	basis 	for 	recognizing
the 	right 	of 	state 	employees 	to 	join
organizations 	of 	their 	own 	choosing 	and 	be
represented 	by 	those 	organizations 	in 	their
employment 	relations 	with 	the 	state •.••
TO 	meet 	these 	objectives, 	the 	Board, 	in 	interpreting 	the
legislative 	intent, 	has 	had 	to 	balance 	two 	conflicting
interests: 	the 	need 	to 	preserve 	employees' 	free 	choice 	of
bargaining 	representatives 	and 	the 	need 	to 	provide 	stability 	to
existing 	bargaining 	relationships. 	See 	NLRB v. 	Frick 	(3rd 	Cir.
2sEERA 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	specified. 	Subsection 	3521 (b) ( 6) 	prov ides:
{b) 	In 	determining 	an 	appropriate 	unit, 	the
board 	shall 	take 	into 	consideration 	all 	of
the 	following 	criteria:
(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.
3

1970)
	423
	F.2d
	1327 	[73
	LRRM
	2889].
	To
	that
	end,
	the
	Board,
	in
administering
	the 	Educational
	Employment
	Relations
	Act
(EERA)
,3 	has 	determined
	that
	the
	employees'
	exercise
	of
	their
right
	to
	freely
	choose
	a
	representative
	must
	be
	barred
	for
	a
period
	of
	at
	least
	12
	months
	following 	the
	recognition
	or
certification
	of
	an
	exclusive
	representative 	in
	order
	to
	afford
the
	employee
	organization
	and
	the
	employer
	a
	reasonable
	period
of
	time
	to
	establish
	a
	collective
	bargaining
	relationship
	and
reach
	initial
	agreement.
	Bassett
	Unified
	School
	District
(1/30/79)
	PERB
	Order
	No.
	Ad-57,
	vacated
	by
	the
	Board 	on
reconsideration
	for 	other 	reasons.4	
The
	Legislature
	has
adopted
	this 	principle
	of 	recognition
	and
	certification
	bars 	in
SEERA,
	stating
[R]ecognition 	of
	employee
	organizationsformally 	recognized 	as
	exclusive
representatives
	pursuant 	to
	a
	vote 	of 	the
employees
	may 	be
	revoked
	by 	a
	majority 	vote
of 	the
	employees
	only
	after
	a
	period 	of
	not
less
	than
	12 	months
	following 	the 	date 	of
such
	recognition.
	(Emphasis
	added.)5
See
	also
	Brooks
	v.
	NLRB
	(1954) 	348
	U.S.
	96 	[35
	LRRM
	2158]
	where
the
	Supreme
	Court
	listed,
	with 	apparent 	approval,
	some
	of 	the
3EERA
	is
	codified
	at
	Government 	Code
	section
	3540
	et.
	seq.
4see
	Bassett 	Unified 	School
	District
	(3/23/79)
	PERE
	Order
No.
	Ad-63.
Ssubsection 	3520.S(c).
	We
	note
	that
	PERE
	has
	alsoadopted 	rules
	and
	regulations 	establishing
	12-month
certification
	and
	recognition 	bars, 	as 	well 	as
	contract-bar
provisions, 	for 	each 	of 	the 	statutes
	under
	its 	jurisdiction.
4

reasons 	that 	have 	been 	offered 	by 	the 	National 	Labor 	Relations
Board 	and 	federal 	courts 	in 	finding 	a 	certification 	bar 	to 	be
necessary. 	Included 	among 	the 	proferred 	reasons 	were:
In 	the 	political 	and 	business 	spheres~ 	by 	an
election 	the 	voters 	are 	bound 	by 	their
choice 	for 	a 	fixed 	time. 	This 	promotes 	a
sense 	of 	responsibility 	in 	the 	electorate
and 	needed 	coherence 	in 	administration.
These 	considerations 	are 	equally 	relevant 	to
healthy 	labor 	relations.
[Further, 	a] 	union 	should 	be 	given 	ample
time 	for 	carrying 	out 	its 	mandate 	on 	behalf
of 	its 	members, 	and 	should 	not 	be 	under
exigent 	pressure 	to 	produce 	hothouse 	results
or 	be 	turned 	out.
We 	find 	that 	the 	principles 	enunciated 	above 	are 	applicable
to 	the 	present 	case. 	To 	permit 	the 	hydroelectric 	employees 	to
be 	severed 	from 	the 	unit 	after 	so 	brief 	a 	period 	of
certification would 	be 	disruptive 	and 	effectively 	destabilize
employer-employee 	relations. 	Accordingly, 	the 	petition 	filed
by 	SETC 	is 	denied 	because 	it 	was 	filed 	less 	than 	12 	months
after 	PERB 	certified 	CSEA 	as 	the 	exclusive 	representative 	of
the 	unit 	of 	which 	the 	petitioned-for 	employees 	are 	a 	part.
ORDER
The 	appeal 	by 	the 	State Employees 	Trade 	Council, 	Local
1268, 	LIUNA, 	AFL-CIO 	from 	an 	administrative 	determination 	of
the 	regional 	director 	of 	the 	Public 	Employment 	Relations 	Board
is 	hereby 	DISMISSED.
Members 	Tovar 	and 	B~rt 	joined 	in 	this 	Decision.
5

PUBUC
EMPLOYMENT
Ra.ATlONS
SOAKD
,oaomento
Regi0t>el
Offic:I!
10:31 18tn Stre-et, Suite l
02
Sccrcm'l.mo,
C::ziifomic	
9
5S
14
(916) 322-3198
/
~	
I
September
	2lt
	1981
Mr.
	Charles
	Reiter,
	General
Manager
Sta~e
E:::lployees
Trades Council,
Local
1268..
	LIUNA,	
A.FI./
CIO
926 J 	St;reet:!I
	:suite
913
Sacramento,
	CA
	95814
Re:
	Unit
	12 -
	Craft
and
Maintenance
S-SR-l2X
Dear
M:r.
	Reiter:
On
	September
14,
	1981
your
petition
	for
	a
	unit:
of
skilled
,:raf::-hydroelectric
employees was
received
by
	this office
	(copy
attached).
	This
petition apparently
seeks
	to
	create
a
	separate unit
	through
the
severance of 	the
	listed
cla15sif
ications
from
	the
established
SEE'RA
Unit
#12 -
	Craft
and Maintenance.
PEP..B
	Regula.ticu
32754(b)
	provides
	that:
any
petition
requiring
	a
	representat:,ion
election
und.el!'
	the
SEE:RA
shall
be dismissed
	if
	"
...
a
re-presentation
	elect.ion
result
has
beE.n
certified
affecting the described
unit or
a
	subdivision
	chereof
	within
12
months
	i.mmediateJ.y
	preceding the
date
of
	filing
of 	the
	petition;".
!n
	the
case of
	SEE'RA
Unit
	ffel2~
	a
	PER.B
	certification
of 	exclusive cepresentative
~esulting
	from
	the
	conduct
of
	a
	representation election
was
	issued
	on
July
10,
	1981.
~he
peti~ion for
	a
	unit
	of
	skilled
	craft-hydroelectric
	employees
	is
	thus not
	timely
filed
	and
	is
	therefore
dismissed. 	Because
	the
petition fails
	due 	to
	the
	12
month
certificati011
bar,
	no
	determinacion regarding
	the proof
of
	support
	or
	the
	appt'opri-
at~ness
of
	the
unit is
	required.
An
appeal
of this decision
may
be
made
	ta
	the Board
	itself
within
10
	calendar
days
of
	service of 	this
	letter
by
filing
	a
	statement of 	the facts
	upon
	which
	the
	appeal
is
	based
W'ith
	the Executive
Assistant
	to
	the
	Board
at
1031-18th
	Street, 	Suite
	200,
Sacramento,
	California,
	95814. 	Copies
of
	any
appeal
must be
	concurrently
	serv~d
upon
all
	parties
and 	the
	Sacrament:o Regional
Oif
ice.
	Proof of
	service of
	th,e
	appeal
must be
	filed
	with the Executive
Assistant.
Should
you have any
questions concerning
	this
	matter, 	please
	contact:
me.
'--:ranet
	E. 	Cara~ay
Regional Director
J"EC:nv
cc: 	~.arty Morgenstern
'..:.:.2..1 iam McLeod