STATE OF CALIFORNIA G. BROWN JR., Governor

PUBLIC EMPLOYMENT RELATIONS BOARD Sacramento Regional Office

1031 18th Street JUL S9 2013 Sacramento, CA 95811-4124

Telephone: 916-324-0143 SLO CITY ATTORNEYFax: (916) 327-6377

July 24, 2013

Re: San Luis Obispo Utility Service Employees Association v. City o/San Luis Obispo Case No. LA-CE-764-M

Dear Parties:

Attached is the Public Employment Relations Board (PERB or Board) agent's Proposed Decision in the above-entitled matter.

Any party to the proceeding may file with the Board itself a statement of exceptions to the Proposed Decision. The statement of exceptions shall be filed with the Board itself at the following address:

PUBLIC EMPLOYMENT RELATIONS BOARD

Attention: Appeals Assistant

1031 18th Street, Suite 200

Sacramento, CA 95811-4124

(916) 322-8231

FAX: (916) 327-7960

Pursuant to California Code of Regulations, title 8, section 32300, an original and five copies of the statement of exceptions must be filed with the Board itself within 20 days of service of this decision. A document is considered "filed" when actually received during a regular PERB business day. (Cal. Code Regs., tit. 8, 32135, subd. (a); see also, Cal. Code Regs., tit. 8, 32130.)

A document is also considered "filed" when received by facsimile transmission before the close of business together with a Facsimile Transmission Cover Sheet that meets the requirements of California Code ofRegulations, title 8, section 32135(d), provided the filing party also places the original, together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, 32135, subds. (b), (c) and (d); see also, Cal. Code Regs., tit. 8, 32090 and 32130.)

The statement of exceptions shall be in writing, signed by the party or its agent and shall: (1) state the specific issues of procedure, fact, law or rationale to which each exception is

taken; (2) identify the page or part of the decision to which each exception is taken;

(3) designate by page citation or exhibit number the portions of the record, if any, relied upon for each exception; and (4) state the grounds for each exception. Reference shall be made in the statement of exceptions only to matters contained in the record of the case. An exception

LA-CE-764-M July 24, 2013 Page 2

not specifically urged 'snaIl be;y'vai~ed. A supporting brief may be filed with the statement of

exceptions. (Cal. Code Regs., tit. 8, 32300.)

Within 20 days following the date of service of a statement of exceptions, any party may file with the Board itselfan original and five copies of a response to the statement of exceptions and a supporting brief. The response shall be filed with the Board itself at the address noted above. The response may contain a statement of any exceptions the responding party wishes to take to the proposed decision. Any such statement of exceptions shall comply in form with the requirements of California Code ofRegulations, title 8, section 32300. A response to such exceptions may be filed within 20 days. Such response shall comply in form with the provisions of this section.

All documents authorized to be filed herein must also be "served" upon all parties to the proceeding, and a "proof of service" must accompany each copy of a document served upon a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, 32140 for the required contents.) The document will be considered properly "served" when personally delivered or deposited in the mail or deposited with a delivery service and properly addressed. A document may also be concurrently served via facsimile transmission on all parties to the proceeding. (Cal. Code Regs., tit. 8, 32135, subd. (c).)

Any party desiring to argue orally before the Board itself regarding the exceptions to the proposed decision shall file with the statement of exceptions or the response thereto a written request stating the reasons for the request. Upon such request or its own motion the Board itself may direct oral argument. (Cal. Code Regs., tit. 8, 32315.) All requests for oral argument shall be filed as a separate document.

A request for an extension of time within which to file any document with the Board itself shall be in writing and shall be filed at the headquarters office 'at least three days before the expiration of the time required for filing. The request shall state the reason for the request and, ifknown, the position of each other party regarding the extension. Service and proof of service pursuant to California Code of Regulations, title 8, section 32140 are required. Extensions of time may be granted by the BOard itselforan agent designated])), the Board itself for good cause only. -(Cal. Code Regs., tit. 8, - 32132, su.bd:-(il).)

. Unless a party files a timely statement of exceptions to the proposed decision, the decision shall become final. (Cal. Code Regs., tit. 8, 32305.)

Very truly yours,

Shawn Cloughesy Chief Administrative Law Judge

PROOF OF SERVICE

I declare that I am a resident of or employed in the County of Sacramento, California. I. am over the age of 18 years and not a party to the within entitled cause. The name and address of my residence or business is Public Employment Relations Board, 1031 18th Street, Sacramento, CA 95811-4124.

On July 24,2013, I served the Letter with Proposed Decision in: San Luis Obispo Utility ServiCe Employees Association v. City olSan Luis Obispo, Case No. LA-CE-764-M, on the parties listed below by

-X- placing a true copy thereof enclosed in a sealed envelope for collection and delivery by the United States Postal Service or private delivery service following ordinary business practices with postage or other costs prepaid.

_ personal delivery. _ facsimile transmission in accordance with the requirements of PERB

Regulations 32090 and 32135(d).

Ralph Royds, Labor Representative Public Labor Advisors 6285 East Spring Street, Suite 355 Long Beach, CA 9.0808

Bruce A. Barsook, Attorney Stacy L. Velloff, Attorney Leibert, Cassidy, Whitmore 6033 West Century Boulevard, 5th Floor Los Angeles, CA 90045

J. Christine Dietrick, City Attorney City of San Luis Obispo . 990 palm street San Luis Obispo, CA 93401-324

I declare under penalty ofperjury that the foregoing is true and correct and that this

declaration was executed on July 24, 2013, at Sacramento, California.

Regina Keith (Type or print nanle)

STATE OF CALIFORNIA

PUBLIC EMPLOYMENT RELATIONS BOARD

SAN LUIS OBISPO UTILITY SERVICE EMPLOYEES ASSOCIATION,

Charging Party,

v.

CITY OF SAN LUIS OBISPO,

Res ondent.

UNFAIR PRACTICE CASE NO. LA-CE-764-M

PROPOSED DECISION (July 24, 2013)

Appearances: Public Labor Advisors by Ralph Royds, Representative, for San Luis Obispo Utility Service Employees Association; Liebert Cassidy Whitmore by Bruce A. Barsook and Stacy L. Velloff, Attorneys, and J. Christine Dietrick, City Attorney, for City of San Luis Obispo.

Before Valerie Pike Racho, Administrative Law Judge.

PROCEDURAL HISTORY

In this case, an employee organization alleges that a public employer unlawfully

applied its local rules regarding recognition and unit appropriateness and thereby unreasonably

refused a request for recognition in violation of the Meyers-Milias-Brown Act.! The employer

denies any violation of the law.

The San Luis Obispo Ut~~ity Service Employees Association (SLOUSA) initiated this

action by filing an unfair practice charge with the Public Employment Relations Board (PERB

or Board) against the City of San Lui"s Obispo (City) on April 18, 2012. The charge alleged

that the City failed to properly apply the City's local rules covering recognition and unit

composition to SLOUSA's petition to sever several classifications from an existing general

unit and create a new utilities unit. On May 30,2012, the PERB Office of the General Counsel

issued a complaint alleging that the City violated the MMBA and its own local rules when it

I The MMBA is codified at Government Code section 3500 et seq. Unless otherwise

specified, all statutory references herein are to the Government Code.

found thatthe petitioned-for employees did not constitute an appropriate bargaining unit

because, among other reasons, they did not share a sufficient community of interest. On

June 18,2012, the City answered the complaint, denying that its unit determination violated its

local rules or the MMBA.

PERB conducted an informal settlement conference with the parties on August 1, 2012,

but the dispute was not resolved. On September 19,2012, the case was transferred from Chief

Administrative Law Judge (ALJ) Shawn Cloughesy, to ALJ Valerie Pike Racho. Neither party

objected to the transfer. On January 14, 2013, the parties jointly submitted a statement of facts

with 16 attached exhibits in lieu of holding an evidentiary hearing. The parties stipulated that .

their joint submission would constitute the complete evidentiary record in the case. With the

receipt of the parties' closing briefs on February 7, 2013, the record was closed and the case

was submitted for decision.

FINDINGS OF FACT

The Parties

The City is a public agency within the meaning ofMMBA section 3501(c) and PERB

Regulation 32016(a).2 SLOUSA is an employee organization within the meaning ofMMBA

section 3501 (a)(2). The San Luis Obispo City Employees Association (SLOCEA) is the

exclusive representative of a general unit of City employees, including those employed in the

water and wastewater divisions of the utilities department that were the subject ofSLOUSA's

severance petition.3

2 PERB regulations are codified at California Code of Regulations, title 8, section 31001 et seq.

3 The City raised as an affirmative defense in its answer to the complaint that SLOCEA should be joined as a necessary and indispensable party to the case. This issue was not addressed by motion or in either party's closing brief, however, and SLOCEA did not seek to participate in the litigation. Therefore, there does not appear to be adequate grounds to order joinder under PERB Regulation 32164.

2

Existing Representation Units

The City employs approximately 350 employees in four bargaining units. Police

department employees are included in two units and firefighters are in a single unit.4 SLOCEA

represents the fourth and largest unit, encompassing approximately 70 classifications in almost

every City department, including: utilities, public works, parks and recreation, finance,

information technology, and community development. Roughly one-third ofSLOCEA's unit

are employed in the utilities department. SLOCEA has represented these employees for as

long as the City has maintained such records, at least since the late-1970s. Since 1992,

SLOCEA bylaws have required that the SLOCEA board of directors include utilities employee

representatives.

SLOUSA's Severance and Recognition Petition

On or about September 16,2011, SLOUSA filed a petition with the City seeking to

sever 17 classifications from the general unit represented by SLOCEA. All of the employees

encompassed by the petition were working within the water and wastewater divisions of the

utilities department.s The petition therefore requested recognition of SLOUSA as the

exclusive representative of a newly formed utilities unit. Around one week earlier, in a letter

dated September 9, 2011, SLOUSA representative Ralph Royds sent a letter analyzing the

community of interest among the requested unit positions to the City's Human Resources

4 At the time of SLOUSA's petition there was a fifth unit of fire battalion chiefs. That unit was later eliminated and the three fire battalion chiefs joined the existing firefighters unit.

S The classifications sought were: Wastewater Collections Systems Operator, Water Customer Service Personnel, Water Distribution System Operator, Water Reclamation Facility Chief Operator, Water Reclamation Facility Chief Maintenance Technician, Water Reclamation Facility Maintenance Technician, Water Reclamation Facility Operator, Water Supply Operator, Water Treatment Plant Chief Operator, Water Treatment Plant Maintenance Technician, Water Treatment Plant Operator, Supervising Administrative Assistant, Administrative Assistant, Environmental Compliance Inspector, Laboratory Analyst, Underground Utilities Locator, and Utilities Conservation Technician.

3

Director, Monica Irons.6 SLOUSAchiefly argued that the factors supporting a community of

interest between the sought-after classifications were: (1) that all work performed by these

employees was done primarily at remote worksites and involved the treatment, distribution,

and collection of water and wastewater; (2) that most of them worked with specialized

equipment; and (3) that many required specialized training, licensing, and certifications with

requisite oversight by State regulators.7 SLOUSA maintained that these shared characteristics

were distinct from other City employees, and therefore bolstered the argument that severance

was appropriate.

SLOUSA also argued that SLOCEA had not provided utilities employees with adequate

representation, noting specifically that the issue of "skills based pay" f~r utilities workers had

not been prioritized by the incumbent representative. Skills based pay referred to a program

piloted in 2001 and implemented in 2004 in the utilities department, wherein compensation

was based upon the achievement of certain skills and certifications for some utilities

classifications. Nine of the classifications involved in the severance request received skills

based pay, and the remaining eight classifications were paid under the City's standard salary

. step system. To date, skills based pay is not included in the memorandum of understanding

between the City and SLOCEA.

On September 21, 2011, Irons sent a letter to SLOUSA representatives Jeff Montijo and

Donald Thomas informing them that SLOUSA's petition was procedurally compliant with

section 10 of the City's Employer-Employee Relations Resolution (ERR or local rules), and

6 This letter also referenced an earlier conversation between Royds and Irons regarding SLOUSA's severance request. The record does not explain why this letter preceded the filing of the petition.

7 SLOUSA acknowledged that this was not true for the sought-after administrative positions proposed to be included in the utilities unit, but argued that the administrative staff working in the water and wastewater divisions required "specialized knowledge" by virtue of working for a utility.

4

that she would evaluate the petition under the community of interest factors set forth in ERR

section 11. After that analysis, Irons would then make a recommendation over unit

appropriateness to the City's employee relations officer, City Manager Katie Lichtig.

The City's Local Ru1es

The ERR does not contain a provision specific to severance. However, it is undisputed

that the City processed SLOUSA's severance request under existing local rule provisions

covering recognition of an employee organization as a majority representative (section 10) and

unit appropriateness (section 11).8 It is also undisputed that the City foundSLOUSA's petition

compliant with ERR section 10, and pursuant to that section SLOUSA sought formal

recognition as a majority representative. ERR section 11 requires the City to analyze the

following "community of interest" factors when tasked with determining whether a proposed

unit is appropriate upon receipt of a request for formal recognition as a majority representative:

1. Which unit will assure employees the fullest freedom in the exercise of rights;

2. The history of employee relations in the unit, among other employees of the City, and in similar public employment;

3. The effect of the unit on the efficient operation and consistent with the organizational structure of the City and sound employer-employee relations;

4. The extent to which employees have common skills, working conditions, job duties, or similar educational requirements; and

5. The effect on the existing classification structure of division on a single classification among two or more units.

g The parties, therefore, do not dispute that severance could be accomplished under the City's local rules in this case, and this is not at issue. (See County 0/Orange (2010) PERB Decision No. 2138-M [PERB's representation regulations only serve to "fill in the gap" for a public agency's failure to adopt a rule covering a particular representation issue where the agency's ru1es contain no provision that could accomplish what the petitioner seeks without placing an un~ue burden on the petitioner]; see also County o/Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No. 2113-M.)

5

ERR section 11 also mandates: "Representation units should consist of the broadest feasible

grouping of positions that share ari identifiable community of interest. Every effort should be

made to minimize the proliferation of units within the guidelines established."

The City's Disposition of the Petition

On or about October 12, 2011, Irons made a written recommendation to Lichtig that

SLOUSA's petition be denied for a lack of unit appropriateness. Lichtig reviewed the

recommendation and adopted it. Lichtig and Irons presented the City's determination to

Montijo and another SLOUSA representative, Randy Stevenson, in person and in writing on

October 20,2011. The City summarized SLOUSA's arguments and analyzed each of the

community of interest factors discussed above as follows.

1. Employee Freedom

The City acknowledged that utilities employees desired to separate from SLOCEA

because they believed that their duties, education, training, work locations, hours, and

compensation differed significantly from the rest of the employees represented by SLOCEA,

and that a recent change in SLOCEA legal representation had not addressed the unique needs

of utilities workers. Specifically regarding the latter point, SLOUSA highlighted that skills

based pay had not been included in the current contract between SLOCEA and the City.

SLOUSA also alleged internal conflict within SLOCEA because the utilities department "is an

enterprise fund," and utilities employees desired to be in a unit consisting entirely of enterprise

fund employees.9

In responding to those arguments, the City noted that approximately 40 percent of

positions in the general unit represented by SLOCEA were enterprise fund positions, with

roughly 34 percent from the utilities department (utilities enterprise fund), but also with

9 The difference in the method of funding between general funds and enterprise funds is not clearly explained in the record, but it can be surmised that such funding sources are distinct from each other.

6

7 percent derived from the parking division of the public works department (parking enterprise

fund). The City found that the argument regarding differing duties, training, compensation,

etc., among utilities workers could also be made among other various subgroups of employees

represented by SLOCEA, and thus was not unique to utilities employees. The City also

observed that the issue of skills based pay was not without controversy within the utilities

department itself, and that SLOCEA had been in discussions with the City over its inclusion in

the current memorandum of understanding. The City noted that a similar skills based pay

program was being developed for maintenance classifications within the public works

department.

2. History of Employee Relations

The City found significant the fact that SLOCEA had always represented employees in

the utilities department, and noted that there had been very little change in the composition of

City bargaining units over the years. The most common change involved moving a

classification or career series from one bargaining unit to another. Regarding a comparison

with other public agencies, two out of nine comparison agencies had separate units for

utilities/maintenance workers, but the majority contained utilities classifications within a

general unit.

3. Effect on Efficient Operations

SLOUSA maintained that the proposed unit was consistent with the City's operation

and organizational structure because it would align all non-management utilities classifications

within a single unit of employees who would have little need to interact with or rely on

employees in other City departments. The City disagreed with this assessment, finding instead

that utilities employees: .

[R]egularly interact and rely on employees in the Finance and Information Technology department for utility billing, GIS related issues such as valve excising/locating, manhole locations,

7

treatment plant equipment, and water conservation[,] as well as the Public Works department related to solid waste disposal, stormwater, paving, capital projects, project inspections, fleet maintenance, recycled water and laboratory analysis.

4. Common Skills, Working ConditionslDuties, or Similar Education

SLOUSA argued that utilities employees required specialized training and

certifications, used specialized equipment, and worked at locations not generally accessible to

other City employees. SLOUSA also contended that water and wastewater employees kept

abreast of work assignments in the divisions for operational needs. In responding to these

arguments, the City noted that while the water and wastewater divisions of the utilities

department each utilized specialized equipment, this equipment "for obvious reasons" was not

shared between the divisions.lO Furthermore, employees in each division had distinct State

certification requirements, and employees were not cross-trained to work in both divisions.

Twelve out of 17 classifications sought to be included in the utilities unit required

specialized certifications or licenses as a job prerequisite, leaving five classifications in the

proposed unit without any requirement for specialized education or certifications (including the

two administrative classifications and three others). In addition, the City found that the need

for specialized certifications was not unique to the utilities department. Many classifications

outside of the utilities department that were included in the existing unit also required

specialized certifications and/or two-to-four year degrees, for example: Building Inspector,

Code Enforcement Officer, Engineer, Engineering Inspector, GIS Specialist, Network

Administrator,Parks and Maintenance Technician, Plans Examiner,Planner, and Tree

Trimmer.

10 While not explicit in the factual record, it can be presumed that the City's reference to "obvious reasons" for not sharing equipment between the water and wastewater divisions is because of the risk ofwater contamination by waste particulates.

8

1

5. Single Classification Divided Among Two or More ~nits

Analysis under this factor only applied to the two administrative positions requested to

be included in the proposed unit. The City observed that most other City departments

employed Administrative Assistants and Supervising Administrative Assistants, including the

police and fire departments. These administrative positions shared common duties that were

adapted based on departmental need. Opportunities for advancement for administrative

assistants was both intra-departmental and inter-departmental. The administrative assistant

classification is the only one in the City that was divided among several bargaining units.

6. Other Considerations

Based on its analysis of the factors discussed above, the City concluded that the

proposed unit was not appropriate. The City also found that SLOUSA's petition did not align

with the mandate in ERR section 11 to maintain bargaining units with the largest feasible

grouping of positions containing an identifiable community of interest and to minimize unit

proliferation. The City concluded that the petition did not contain the broadest feasible

grouping, as summarized by Irons in her written analysis:

Given that the Utilities and Public Works Departments are currently examining organizational synergies, the Public Works Department is considering implementing [skills based pay] for Maintenance classifications, and that many non-Utilities classifications within SLOCEA require certifications and/or degrees, I do notseegranting this unit in the bestinterest or furthering employee relations.

ISSUE

Whether the City applied its local rules regarding recognition and unit appropriateness

in 'an unreasonable manner, thereby unlawfully denying SLOUSA'srequest for severance?

9

CONCLUSIONS OF LAW

The MMBA permits local public agencies to "adopt reasonable rules and regulations"

for the administration of employer-employee relations, including procedures for determining

exclusive recognition of employee organizations and "appropriate" units of employees for

collective bargaining purposes. (MMBA, 3507, subd. (a)(4).) MMBA section 3509,

subdivision ( c) empowers PERB to "enforce and apply rules adopted by a public agency

concerning unit determinations, representation, recognition, and elections." Thus, an employee

organization may challenge a public agency's determination made pursuant to local rules

through the unfair practice procedure before, PERB.ll (See County ofRiverside (2010) PERB

Decision No. 2119-M (Riverside).)

. When evaluating a public agency's unit determination under local rules, PERB's

inquiry is whether the agency's determination was reasonable. (City ofGlendale (2007) PERB

Order No. Ad-361-M (Glendale); Alameda County Assistant Public Defender's Assn. v.

County ofAlameda (1973) 33 Cal.App.3d 825, 830 (Alameda).) "Ifreasonable minds could

differ over the appropriateness of the determination, PERB should not substitute its judgment

for that of the local agency." (Riverside, supra, PERB Decision No. 2119-M at p. 13, citing . .

Organization ofDeputy Sheriffs v. County ofSan Mateo (1975) 48 Cal.App.3d 331, 338

(San Mateo).) A local government employer is not required to determine "the ultimate unit or

most appropriate unit. The act requires only that the unit be 'appropriate. '" (Alameda, supra,

at p. 830, emphasis in original; see also Antioch Unified School District (1977) EERB12

11 MMBA section 3507, subdivision (d) also provides a mechanism for an employee organization to challenge that a local rule is unreasonable and therefore violates the MMBA. There is no such challenge here, however, as SLOUSA stipulated that it does not allege that the applicable local rules in this case are unreasonable. (See Joint Factual StipUlation No. 49.)

12 Prior to 1978, PERB was known as the Educational Employment Relations Board

(EERB).

10

Decision No. 3713.) The party challenging a public agency's unit determination bears

the burden of demonstrating that the decision was not reasonable (San Mateo, supra, at

pp. 338-339), and where that burden has not been met, the Board has refused to disturb the unit

determination. (Riverside, supra, PERB Decision No. 2119-M; Glendale, supra, PERBOrder

No. Ad-361-M.)

In Riverside, supra, PERB Decision No. 2119-M, an employee organization challenged

the employer's denial ofa petition seeking to create a new unit of temporary employees who

worked in a variety of different departments of the employer. The Board upheld the

employer's determination, even though there were some factors (e~g., a similar wage and

benefits structure) supporting a community of interest between the employees in the

petitioned-for unit. The Board found that there were other factors that weighed against finding

a community of interest, notably, the diversity ofjob functions performed and the fact that

permanent employees in analogous job classifications were spread across multiple units.

Therefore, the Board found the employer could reasonably conclude in that instance that the

proposed unit was not appropriate. (Id. at pp.'14-1S.)

Similarly, in Glendale, supra, PERB Order No. Ad-361-M, PERB refused to overturn

an employer's decision refusing to grant a severance petition. In that case, the petitioning

employee organization sought to carve out certain electrical services and power plant "skilled

crafts" classifications working in the employer's department of water and power from a

general employee unit represented by another organization. The petitioning employee

organization did not provide evidence that the employer's analysis under its local rules was

13 When interpreting the MMBA, it is appropriate to take guidance from cases interpreting the National Labor Relations Act and California labor relations statutes with parallel provisions. (Fire Fighters Union v. City o/Vallejo (1974) 12 Ca1.3d 608.)

11

unreasonable, but merely provided to PERB a "virtually identical recitation of arguments" that

it had presented to the employer. (Id. at p. 3.) The Board noted that the employer's local rules

set forth similar unit determination criteria as considered by the courts and PERB. (Id. at

pp.5-6.) The Board noted that the employer had analyzed all ofthe criteria for unit

appropriateness, and found that the employer then reasonably concluded that the sought-after

employees shared a greater community of interest with the existing unit. The Board also noted

that the petitioning employee organization failed to refute that the sought-after employees

lacked a community of interest with the existing unit. (Id. atp. 6.)

Under the authorities discussed above, SLOUSA has failed to meet its burden of

demonstrating that the City's unit determination was unreasonable. As in Glendale, supra,

PERB Order No. Ad-361-M, the City here provided a comprehensive analysis of its criteria for

determining an appropriate unit, and those criteria are similar to those used by the courts and

PERB. (See also, Santa Clara County DistrictAttorney Investigators Assn. v. County of

Santa Clara (1975) 51 Cal.App.3d 255, 260; Educational Employment Relations Act (EERA),

3545, subd. (a).[14]) Similar to Riverside, supra, PERB Decision No. 2119-M, although some

factors here weigh in favor of a community of interest between utilities employees (e.g., that a

majority of utilities classifications receive skills based pay and work at remote locations),

several others weigh against it.

Importantly, SLOUSA does not refute the City's determinations that employees in

the water and wastewater divisions were not cross-trained with each other, did not work with

the same specialized equipment or perform the same duties, and did not have the same

specialized certifications and licensing requirements. IS Thus, the City's determination that

utilities employees did not share sufficient community of interest with each other in order to

14 EERAis codified at Section 3540 et seq.

15 Nor did all classifications in either division require specialized certifications.

12

form an appropriate unit cannot be found unreasonable. (Riverside, supra, PERB Decision

No. 2119-M.) Furthermore, the fact that utilities employees could feasibly be put in their own

separate bargaining unit does not" compel the City to do so. (Glendale, supra, PERB Order

No. Ad-361-M [the MMBA, unlike the Higher Education Employer-Employee Relations Act

(HEERA),16 does not provide a right to a separate unit of skilledtrades employees].)

SLOUSA also does not refute the City's findings that: (1) utilities employees were not

the only City employees paid from enterprise funds (and thus the petitioned-for unit would not

include all enterprise fund employees); (2) many other classifications in the existing general

unit also required specialized certifications, licensing, and oversight by State regulatory

agencies; (3) utilities employees regularly interacted with and relied on existing unit

employees working in the finance, information technology, and public works departments; or

(4) eight of the sought-after classifications did not receive skills based pay, but rather were

paid under the same methods of salary calculation as employees in the existing unit. All of

these findings amply support a conclusion that utilities employees share a community of

interest with each other. Therefore, it cannot be foundthat the City's determination that

utilities employees should remain in the general unit was unreasonable. (Glendale, supra,

PERB Order No. Ad-361-M; Alameda, supra, 33 Cal.App.3d 825, 830.) Thus, the City's unit

determination did not violate its local rules or the MMBA.

PROPOSED ORDER

Based on the foregoing findings of fact, conclusions of law, and the entire record in

this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-764-M,

San Luis Obispo Utility Service Employees Association v. City ofSan Luis Obispo, are hereby

DISMISSED.

16 HEERA is codified at Section 3560 et seq.

13

..

Right to Appeal .

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

Public Employment Relations Board (PERB or Board) itself within 20 days of service of this

Decision. The Board's address is:

Public Employment Relations Board

Attention: Appeals Assistant

103 1 18th Street

Sacramento, CA 95811-4124

(916) 322-8231 FAX: (916) 327-7960

E-FILE: PERBe-file.Appeals@perb.ca.gov

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. (Cal. Code Regs., tit. 8, 32300.)

A document is considered "filed" when actually received during a regular PERB

business day. (Cal. Code Regs., tit. 8, 32135, subd. (a) and 32130; see also Gov. Code,

11020, subd. (a).) A document is also considered "filed" when received by facsimile

transmission before the close ofbusiness together with a Facsimile Transmission Cover Sheet

or received by electronic mail before the close of business, which meets. the requirements of

PERB Regulation 32135(d), provided the filing party also places the original, together with the

required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8,

32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, 32090,32091 and 32130.)

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 Regs., tit. 8, 32300, 32305, 32140,

and 32135, subd. (c).)

14