City Reasonably Applied Its EERR When It Dismissed A Petition For Recognition

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Oct 07, 2021

On November 12, 2019, Pasadena Non-Sworn Employees Association (PNSEA) filed a severance and representation petition with the City of Pasadena.  PNSEA was seeking recognition as the exclusive representative of a new bargaining unit composed of all non-sworn classifications employed by the City of Pasadena Police Department. The proposed unit would contain 87 employees in approximately 14 separate classifications. PNSEA submitted its petition and proof of support from about 82 percent of the petitioned-for employees. The PNSEA petition requested that the City form the new unit by combining currently unrepresented employees with represented employees carved out from two other bargaining units represented by AFSCME and LIUNA.

Upon receiving PNSEA’s request, the City held a hearing to determine if the petitioned-for unit was appropriate. On May 13, 2020, the City denied the petition because PNSEA failed to show: (1)  that the classifications in the proposed unit shared a community of interest separate and distinct from the AFSCME and LIUNA units; and (2) a community of interest between the Police Supervisors and the other classifications in the proposed unit.

PNSEA alleged the City was unreasonable in applying its Employer-Employee Relations Resolution (EERR) to the facts and filed a PERB charge.

PERB clarified that because PNSEA was the challenger, it had the burden to show that its proposed unit was appropriate and the City’s decision was not reasonable. PERB explained that a unit is appropriate when it has a community of interest separate and distinct from other employees in the existing bargaining units. However, if reasonable minds could differ as to whether a unit is appropriate, PERB will not substitute its judgment for a local agency’s determination.  However, PNSEA did not have to show that its proposed unit was the most appropriate.

To analyze whether the City acted reasonably in determining that the proposed unit was inappropriate, PERB used the City’s EERR unit determination criteria: (1) history of the City’s labor relations; (2) labor relations in similar public employment; (3) common skills, working conditions, duties, education; (4) effect on the existing classification structure; and (5) efficiency of City operations.

As to the first factor, the City showed that AFSCME and LIUNA had represented their units since the 1980s and that severing classifications from those established units could destabilize negotiating relationships. PERB agreed that maintaining historic continuity typically weighed against severance absent proof that the unit was incapable of addressing the needs of a discrete minority within the unit. Here, PNSEA attempted to show that employee relations were unstable and that employees’ unique needs were not being addressed. However, PERB sided with the hearing officer, who held that there was a positive history of labor relations spanning decades and that PNSEA failed to show that any lack of bargaining success was due to the existing units’ failure to adequately represent non-sworn employees’ interests.  This evidence weighed against severing the established units.

With respect to the second factor, PERB found that the City afforded sufficient weight to other cities’ practices.

As to the third factor, PNSEA did not present evidence regarding non-sworn employees’ common skills, job duties, or educational requirements. However, PNSEA did argue that the classifications in the proposed unit shared a common, unique work environment because the Police Department operated 24/7 and dealt with potentially unsafe situations. PERB found that these factors were neither unique to the Police Department’s non-sworn employees, nor sufficient to warrant severing them from the unit. Thus, PERB found that PNSEA failed to establish that the non-sworn employees shared a community of interest separate and distinct from the AFSCME and LIUNA represented employees.

As to the fourth factor, PNSEA planned to sever one of the four Maintenance Repairers and three of the 15 Maintenance Assistants from AFSCME to create its unit because these employees worked for the Police Department. PNSEA conceded that while these employees did work for the Police Department, their job duties were common across all City departments and not distinct to the Police Department. Thus, PERB agreed with the hearing officer that PERB generally disfavors splitting a single classification across multiple bargaining units when the employees within that classification perform the same work under virtually the same employment conditions.

Finally, as to the last factor, PNSEA argued that it would be more efficient to put all non-sworn Police Department employees into a single bargaining unit and that this change would improve employer-employee relations. AFSCME and LIUNA countered that creating a tenth bargaining unit would make labor relations with the City less efficient. Furthermore, the hearing officer worried this could lead to more units seeking to sever in order to form additional units. While PERB found both the City and PNSEA’s efficiency arguments speculative, it held that PNSEA was still unable to show that the City unreasonably applied its local rules.

PERB also analyzed whether the City unreasonably declined to find a community of interest between supervisory and non-supervisory classifications. PERB said that an MMBA employer may not categorically require that all employees with supervisory duties be excluded from any bargaining unit that contains non-supervisors; rather, supervisory duties at most may be relevant to unit determination solely as one of numerous community of interest factors.  Under the City’s EERR, however, PERB noted that supervisors would be required to be in a separate unit from non-supervisors. PERB noted that since the City’s EERR conflicted with the MMBA, the City’s EERR would be unenforceable as to that rule.  However, PNSEA had not challenged the City’s rule; it challenged only the application of this rule. PERB found that the City still had a valid reason to deny PNSEA’s proposed unit and the City had not severed non-supervisors from their existing units.

Lastly, PERB determined that because the PNSEA never established that the City rejected an alternate unit comprised solely of 12 Police Supervisors, it did not need to consider whether such a rejection would be reasonable.

In light of these findings, PERB ultimately dismissed PNSEA’s claim that the City unreasonably applied its EERR when it dismissed its petition.

City of Pasadena, PERB Dec. No. 2788-M (September 1, 2021).


This case shows that the party challenging a decision on the appropriateness of a unit has the burden of proof.  Public agencies should ensure they are not only following the criteria listed in their respective Employee-Employer Relations Resolutions but that those criteria are consistent with PERB regulations.

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