V

STATIC OF CALL rORNIA

.
t

ICDNIUNI) C. BROWN. IR.. Governor

PUBLIC EMPLOYMENT RELATIONS BOARD

Division 1031
or

T' 4

ED
i P

Adntinistnn ive Law

I Rth Street

MAR - 3 2014
95811- 4124

Sacramento, CA

Telephone: 916- 324 41143

VERB

d;
SLO CITY ATTORNEY
I

Fax:( 916) 327- 7955

February 28, 2014

Re:

San Luis Obispo Police Officers Association r. City ofSan Luis Obispo
Case No. LA- CE- 729- 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 of Regulations, 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:

I)

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 not

r.

17,

LA- CE- 729- M

February 28, 2014

Page 2

specifically urged shall be waived. A supporting brief may be filed with the statement of
exceptions. (

Cal. Code Regs.,

tit.

8,

32300.)

Within 20 clays following the date of service of a, statement of exceptions, any party may file
with the Board itself an original and live copies of a response to the statement of exceptions and a supporting brief. The response shall be filed with the Board itsolfat 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 of Regulations, 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,

if known, 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 itself or an agent designated by the Board
itself for
good cause

only. ( Cal. Code Regs.,

tit.

8,

32132, subd. ( a).)

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,

ear_
Shawn P. Cloughesy
Chief Administrative Law Judge

t-

PROOF OF SERVICE

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 February 28, 2014, I served the Cover Letter and Proposed Decision regarding Case
No. LA- CE- 729- 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).

Alison Berry Wilkinson, Attorney at Law

Berry Wilkinson Law Group
4040 Civic Center Drive, Suite 200 San Rafael, CA 94903

Bruce Barsook, Attorney Lichen Cassidy Whitmore 6033 West Century Boulevard, Suite 500
Los Angeles, CA 90045

Christine Dietrick, City Attorney City of San Luis Obispo

990 Palm Street
San Luis Obispo, CA 93401

I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on February 28, 2014, at Sacramento, California.

C.
Type

Shelly

11: 0
Sign lure)

or print name)

1,
1

SPATE OF CALIFORNIA

PUBLIC EMPLOYMENT RELATIONS BOARD

SAN LUIS OBISPO POLICE OFFICERS

ASSOCIATION,

UNFAIR PRACTICE

Charging Party,
v.

CASE NO. LA- CE- 729- M

PROPOSED DECISION 02/ 28/ 2014).

CITY OF SAN LUIS OBISPO,

Respondent.

Appearances: Berry Wilkinson Law Group by Alison Berry Wilkinson, Attorney, for San Luis

Obispo Police Officers Association; Liebert Cassidy Whitmore by Bruce A. Barsook, Attorney, and Office of the City Attorney by J. Christine Dietrick, City Attorney, for City of
San Luis Obispo. Before Valerie Pike Radio, Administrative Law Judge.

An exclusive representative alleges in this case that an employer failed in its duty to

meet and confer in good faith under the Meyers- Milias- Brown Act ( MMBA)' before proposing
two ballot initiatives in a municipal election that affected employment conditions within the

scope of representation. The employer denies any violation of the law.

PROCEDURAL HISTORY

The San Luis Obispo Police Officers Association ( POA or Union) filed an unfair
practice charge with the Public Employment Relations Board ( PERB or Board) on October 17,

2011 against the City of San Luis Obispo ( City). The PERB Office of the General Counsel
issued a complaint on April 13, 2012. The complaint alleged that the City violated MMBA
sections

3503, 3505, 3506, 3507,

and

3509( b)

and

PERB Regulation 32603(

a), (

b), ( c), and ( 02

1 The MMBA is codified at Government Code section 3500 et seq.

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

seq.

by approving two proposed ballot initiatives without discharging its bargaining obligation.
The proposed initiatives ( Measures A and B) affected two sections of the City Charter. Measure A proposed to modify City Charter section 1 105 ( section 1 105) by eliminating a
requirement that voters approve proposed reductions in employee retirement benefits. Measure

B proposed to repeal section 1 107 of the City Charter ( section 1107) that, among other things,

mandated binding arbitration of all employment disputes. The City filed its answer to the complaint on May I, 2012, denying any violation of the law and alleging, among other
affirmative defenses, that PERB lacks jurisdiction over the charge pursuant to MMBA section
3511.

An informal settlement conference was conducted by PERB on June 5, 2012, but the

matter was not resolved. On October 19, 2012, the City filed a motion to dismiss the unfair

practice charge and complaint that was denied without prejudice by the administrative law
judge on December 7, 2012. On January 11, 2013, the parties filed an amended factual

stipulation and 28 joint exhibits that were admitted into evidence at the formal hearing held on

January 14, 2013. 3 With the submission of post- hearing briefs on March 25, 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 of MMBA section 3501( c) and PERB
Regulation 3201 6( a), and a charter city pursuant to Article al, section 3( a), of the California

Constitution. The POA is a recognized employee organization within the meaning of MMBA
section 3501( 6) and an exclusive representative within the meaning of PERB Regulation

3 The amended stipulation corrected a previous factual stipulation that was filed on
January 9, 2013. Only the amended stipulation and acconipanying exhibits are included in the
evidentiary record.

32016( b). The POA represents a " mixed" unit of employees that includes both civilian

personnel and sworn peace officers working in the City police department. 4
Background of the City Charter Provisions
1.

Section 1105

The City contracts with the California Public Employees' Retirement System

CaIPERS) to administer retirement benefits for City employees. Prior to August 30, 2011,
section 1 105 stated: 5 The City Council shall be authorized to enter into a contract with
the Board of Administration of the Public Employees' Retirement

System of California that shall include all employees of the City of San Luis Obispo. Should the contract at any time be broadened, the City Council may have the contract amended to
provide the improved coverage.

The Council may terminate the contract or negotiate another

contract with reduced employee coverage with the Board of

Administration of the Public Employees' Retirement System only

upon authority approved by the electorate.
2. Section 1 107

In the late 1980s, the POA became frustrated by protracted and difficult contract negotiations with the City and joined with the union representing City firefighters to draft a

ballot initiative to amend the City Charter to require binding interest arbitration.

When the

City became aware of this effort by the unions, it invited both employee groups to negotiate
over an employer- employee relations ordinance ( ERO) in lieu of qualifying their ballot

4 " Peace Officer" is defined by California Penal Code Section 830. 1.

5 The record does not clearly explain how long section 1 105 had a been part of the City
Charter, or the process by which it was adopted.

6 City firefighters are represented by the San Luis Obispo Firefighters Association,
IAFF Local 3523. " Interest arbitration involves an agreement between an employer and a

union to submit disagreements about the proposed content of a new labor contract to an

City of Fresno v. the People ex rel. Fresno Firefighters, IAFF Local 753 et at ( 1999) 71 Ca1 App.4th 82, 96 ( Fresno Firefighters).)
arbitrator or arbitration panel." (

measure for an upcoming election. The unions agreed. After those negotiations the City

adopted Resolution 6620 that, among other things, provided for non- binding factfinding in the
event ofa bargaining stalemate.

Approximately 10 years later, in the late 1990s, the POA again allied with the firefighters' union after becoming dissatisfied with the non- binding dispute resolution
procedure under the ERO. The employee groups introduced a ballot initiative known as

Measure S that was passed by the electorate in November 2000. Measure S amended the City
Charter to include section 1107, which provided in relevant part:

A) Declaration of Policy. It is hereby declared to be the policy of the City of San Luis Obispo that strikes by firefighters and
police officers are not in the public interest and should be prohibited, and that a method should be adopted for

peacefully and equitably resolving disputes that might

otherwise lead to such strikes.

B) Prohibition Against Strikes. No City of San Luis Obispo

firefighter[ s] or police officers shall willfully engage in a

strike against the City. Any such employee against whom the City brings charges of failing to report to work as part of a
strike shall be subject to dismissal from his or her
employment in the event the charges are sustained upon

conclusion of the proceedings that are required by law for the imposition of disciplinary action upon said employee. C) Obligation to Negotiate in Good Faith, The City... shall
negotiate in good faith with the San Luis Obispo Police

Officers Association and/ or the San Luis Obispo Firefighters

Association, IAFF Local 3523, as the exclusive
representatives of representation units comprised solely of

employees of the police department and/ or fire department, as

such units are currently constituted or as they may be

amended through negotiation or arbitration as provided in this

section, on all matters relating to the wages, hours, and other

terms and conditions of City employment. Unless and until

agreement is reached through negotiations... or a

determination is made through the impartial arbitration

procedure hereinafter provided, no existing benefit, term or

condition of employment for employees represented by the

San Luis Obispo Police Officers Association and/ or the San

Luis Obispo Firefighters Association, IAFF Local 3523, shall

be altered, eliminated or changed.

D) Impasse Resolution Procedures.

I) A11 disputes, controversies and grievances pertaining to

wages, hours or terms and conditions of employment
which remain unresolved after good faith negotiations

between the City and said employee organization shall be

submitted to a three member Board of Arbitrators upon

the declaration of an impasse by the City or by said employee organization. Upon declaration of impasse by
either party, the City and employee organization shall
each exchange a written last offer of settlement on each of

the issues remaining in dispute. . . .

11 11]
7) The, proceedings described herein shall supercede the dispute resolution process for the San Luis Obispo Police

Officers Association and the San Luis Obispo Firefighters

Association which is set forth in Sections 13. 2 and 14. 1 of

City ofSan Luis Obispo Resolution No. 6620, to the

extent that such language is in conflict with this

amendment. Furthermore, the proceedings described

herein shall supercede any language within the EmployerEmployee Resolution, the Personnel Rules and

Regulations, any Memorandum of Agreement with the

employee associations or any written policy or procedure

relating to wages, hours, or other terms and conditions of

City employment, to the extent that such language is in conflict with this amendment. However, nothing in this

section shall preclude the parties from mutually agreeing to use dispute resolution processes other than the binding
arbitration process herein set forth. Nor, does it preclude

the parties from negotiating, and submitting to the

arbitration process set forth herein, a grievance process,

which includes a form of binding arbitration that differs

from the one, set forth herein.
Emphasis added.)

In 2006, the City and the POA reached an impasse in negotiations and utilized the

procedures in section 1107, which resulted in a binding arbitration award sometime in 2008.

In 2009, the City considered proposing, but ultimately did not then pursue, a ballot initiative to
rescind section 1107.

The City Decides to Propose Ballot Initiatives in 2011

Matthew Blackstone is the POA president and is employed as a police officer for the

City. Blackstone regularly reviews the City' s website for what are commonly referred to as
red file" communications. Red file communications are those between members of the public

and the City council that occur outside of City council meetings, but which are publicly

disclosed by the City to conform to legal requirements. In January 2011, 7 Blackstone observed
red file communications regarding the formation of a fiscal sustainability task force, which
prompted Blackstone to make a request for public records. After his review of the responsive

documents, Blackstone discovered some council communications regarding binding interest

arbitration. This was how Blackstone first was alerted that the council had renewed concerns
over that issue.

At a meeting of the City council on February 15, the council requested that City staff
notice a special meeting to discuss introducing two ballot measures to repeal sections 1 105 and 1107, and provide information at the special meeting regarding possible dates that an election

could be held for that purpose. Blackstone was not present at the February 15 meeting, but he
learned from employees who were there that the council had raised these issues. The special

meeting was then noticed for the following week on February 22. Blackstone was concerned
that because the election issues had not been placed on the agenda for the February 15 meeting,

there was no forewarning to the POA to attend that particular meeting. Further complicating
the matter from the POA' s perspective was the fact that the organization had previously
scheduled and paid for training for its board of directors to be held in Sacramento on

7 All dates hereafter refer to 2011 unless otherwise stated.

6

February 22. This effectively deprived POA officers of the ability to attend the noticed
meeting regarding the City' s plan to introduce the ballot measures. However, Blackstone also

admitted that the POA could have chosen to forfeit the money already spent for training in
order to attend the council meeting. POA officers chose not to do that and went to the training.

During the February 22 City council meeting, the council considered the feasibility of
holding an election on August 30. The council directed City staff to draft proposed language
for two ballot measures that would repeal sections 1105 and 1107, as well as language for an
ordinance that would allow it to proceed with an election on that date, if it chose to pursue that
action.

Sometime shortly after the February 22 meeting, the POA' s attorney, Alison Berry
Wilkinson, and City Attorney J. Christine Dietrick had a telephone conversation about the

direction given by the City council regarding drafting ballot language. Berry Wilkinson raised
concerns about the City' s obligation to meet and confer under People ex rel. Seal Beach Police

Officers Assn. v. City ofSeal Beach ( 1984) 36 Cal. 3d 591 ( Seal Beach) before approving ballot

measures designed to repeal sections 1 105 and 1107. Dietrick informed Berry Wilkinson that
the City had concluded that it was not legally obligated to formally meet and confer in this
instance, but that it desired open communications with employees and their unions. In that

spirit, the City wanted to meet with the POA so that the organization could provide input

before the City council made a final decision over whether to proceed with an election. These

sentiments were also memorialized in a letter from Dietrick to Berry Wilkinson dated

March 1. 8 In that letter, Dietrick requested that Berry Wilkinson try to advise her by March 8

Dietrick

also so provided p o

o to

Qer Ik attached correspondence between her and Berry y Wilkinson

the attorney representing the firefighters' union in order to provide a fuller explanation of the City' s legal conclusion over the issues presented. The letter from Dietrick to the firefighters'

legal counsel informed him that based upon the Fresno Firefighters case and another recently
7

if the POA wanted to meet and discuss the issues. The POA, however, did not respond within

that period of time.9

On March 21, Berry Wilkinson wrote a letter to Dietrick, disagreeing with the City' s contention that the Sea! Bench case did not compet the City to meet and confer with the POA

prior to introducing ballot initiatives that impact terms and conditions of employment. Berry
Wilkinson requested that as soon as draft ballot language was prepared, it be " promptly
provided"

to the

POA

so

that "

it

can

initiate

the meet and confer process."

Berry Wilkinson

also expressed concern that the time frame. the City was considering for the election was not

adequate for the parties to complete bargaining.

There was email correspondence the following day between Berry Wilkinson and
Dietrick in response to the March 21 letter. Berry Wilkinson inquired over an expected time

frame to receive draft ballot language, and noted regarding binding interest arbitration that " if
a complete repeal is proposed, then the parties must discuss what alternate dispute resolution
procedure will

be

enacted."

Berry Wilkinson further stated that:

P] rocedures for the resolution of disputes involving wages,

hours, and other terms and conditions of employment are within

the scope of representation as expressly set forth in Govt. Code 3507( 5) [ sic]. The duty to meet and consult under Govt. Code
3507 over procedures for the resolution of disputes ( Govt. Code

3507( 5) [ sic]) is the same as the duty to meet and confer as defined in Govt. Code 3505. Vernon Firefighters v. City of Vernon ( 1980) 107 Cal. App.3d 802; International Association of
Fire Fighters Loc. 1974 v. City ofPleasanton ( 1976) 56 Cal. App. 3d 959.

decided appellate case, the City concluded that bargaining over interest arbitration proposals was permissive, rather than mandatory. ( Fresno Firefighters, supra, 71 Cal. App. 4th 82.)

9 There was some reference in testimony and documentary evidence to a March 7 email
from Berry Wilkinson to Dietrick, but it was not produced for the record, Berry Wilkinson did not testify, and Dietrick did not remember receiving it.
8

Berry Wilkinson concluded that until the POA saw the exact language being proposed, it
would not be able to identify key issues that it may want to bargain over.

Dietrick responded to Berry Wilkinson via email stating that it was clear that the parties
had differing opinions over the legal obligation to meet and confer under the circumstances,

but reiterating that the City still desired to have informal discussions with the POA. Dietrick

noted that although the firefighters' union and the City had agreed to disagree over the City' s
legal duty to bargain, they were going ahead with informal discussions over the matter.

Regarding the draft ballot language, Dietrick stated that it would be fairly straightforward and uncomplicated, along the lines of: "Shall Section I I07 of the City Charter ` Impartial and
Binding Arbitration for the San Luis Obispo. Police Officers and San Luis Obispo Firefighters
Association, IAFF Local 3523, Employee Disputes' be
repealed?"

Dietrick also noted that

similarly straightforward language would be introduced to repeal section 1105.

Between March 31 and April 17, a number of emails were exchanged between Berry
Wilkinson, Dietrick, Blackstone, Assistant City Attorney Andrea Visveshwara, and City Human Resources Director Monica Irons. Both Berry Wilkinson and Dietrick were on

overlapping vacations during this time period, which limited their ability to reach each other by
telephone. Also during this time frame, Berry Wilkinson expressed that while the POA wanted

to give input over the proposed ballot measures, it was not willing to do so on the terms agreed
to by the firefighters union. Berry Wilkinson further stated that the POA believed the parties should seek declaratory relief in the courts for guidance on the legal obligation to meet and confer, prior to the expenditure of public funds on an election that may be invalid. Dietrick
urged the POA to at least meet and discuss the issues before resorting to any action in court: In

an email on April 14, Visveshwara informed Berry Wilkinson and Blackstone that the City
council would be considering input from employee groups over the proposed ballot measures

during a council meeting on April 19, and inquired whether the POA would be able to meet with the City before then. According to Blackstone, this was the first time the POA was
notified that there was an anticipated date for the council to consider input from employee
groups over the proposed ballot measures.

Although it continued to maintain it had the right to formally meet and confer before the City determined to propose ballot initiatives affecting terms and conditions of employment, the POA finally agreed to meet informally with City representatives on April 19, prior to the

City council meeting. Because of 13lackstone' s patrol duties, he was only available to meet
between 1 : 30 p. m. and 5: 00 p. m. Blackstone testified and Dietrick also confirmed that,
historically, scheduling meeting times with the POA bargaining team has been challenging
because of police officers' work schedules.

Blackstone, POA Labor Relations Consultant DaleStrobridge, and several other

members of the POA negotiations team met with Dietrick and Visveshwara on April 19 at

approximately 1 : 30 p. m. 10 A special City council meeting to consider whether to adopt the

proposed ballot language was scheduled to take place that afternoon at 3: 00 p. m. Strobridge

found this significant because he could recall no other circumstance where a City council
meeting was scheduled during that hour, and he was also concerned over the truncated time

frame for the discussion.' 1 Dietrick and Visveshwara shared with the POA team a council
agenda report they had prepared, which included the proposed ballot language to be presented

to the council. The POA pointed out that the City' s proposed ballot language regarding section
1 105 contained an error in word choice that obscured its intended meaning. The City revised

to The City had already met informally with all of the other employee organizations
who desired to provide input over the proposed ballot measures well before April 19.

1 Before becoming a paid consultant for the POA, Strobridge worked for 30 years as a
police officer for the City, and for at least 28 of those years, he was also a POA officer and
member of the negotiations team.

10

its proposed language based on this feedback. Shortly before 3: 00 p. m., Dietrick excused

herself from the meeting in order to travel to the City council meeting location, which was

approximately one mile from where the City and POA were holding their meeting. Strobridge
also left soon after to attend the City council meeting, which ended the meeting between POA

and the City. 12 No proposals were exchanged between the POA and the City over either
proposed ballot measure, and no dates for future meetings between the parties were discussed.

Dietrick presented a report to the City council at the meeting on April 19 that
summarized the input received from employee organizations and acknowledged that POA

contended the City was obligated to meet and confer before calling for an election to repeal

sections 1 105 and 1107. The report also noted that June 3 was the deadline for the City to act
if it desired an all- mail ballot election to commence on August 30. 13 Strobridge was not able
to address the council during the meeting because he got there around 3: 30 p. m., and he did not

believe that there was an opportunity for public comment at that time. Motions were passed by
the City council directing staff to prepare ballot language to amend, rather than repeal, section
1 105 and to repeal section 1107.

On May 3, the POA filed a lawsuit in superior court seeking declaratory and injunctive
relief to compel the City to fulfill its bargaining obligations before placing its ballot initiatives before voters. On May 9, the POA filed an ex pane application for a temporary restraining order ( TRO) to prevent the City from setting a special election regarding the Charter provisions. The court denied POA' s TRO application on May 16. On May 17, the City

12 Blackstone was unable to attend the City council meeting because he was still in
uniform, having finished his patrol duties immediately before the meeting between POA and City representatives. A City policy prohibits uniformed officers from attending City council
meetings.

13 The City had also earlier communicated this information to the POA via email on
March 31, stating that June 3 was the date by which the City council must act in order to
schedule an election for August 30 under applicable election law.

11

council adopted a resolution calling for and establishing a mailed ballot municipal election on

August 30 for voters to decide whether to amend section 1 105 to permit the City to terminate
or amend its contract with CaIPERS and/ or reduce employee retirement benefits, without voter

approval, and whether to repeal section 1 107 entirely. That election took place as scheduled.

Both City- sponsored initiatives passed, with 73. 95 percent of voters deciding to amend section
1 105 ( Measure A) and 72. 67 percent of voters deciding to repeal binding interest arbitration

Measure B). 14 The POA then dismissed its lawsuit against the City without prejudice on
September 21 and filed the instant charge with PERB on October 17. 15
ISSUES

I.

Does PERB have jurisdiction over the claims presented in this matter since the

majority of POA unit employees are sworn peace officers under Penal Code section 830. 1?

2.

Did the City violate MMBA section 3505 by failing to meet and confer with the

POA before adopting a resolution to submit ballot initiatives to voters to amend section 1 105
and to repeal section 1107?

3.

Did the City violate MMBA section 3507 by failing to meet and consult with the

POA before adopting a resolution to submit a ballot initiative to voters to repeal section 1107?
CONCLUSIONS OF LAW
I. Jurisdiction

MMBA section 3511 provides:

The changes made to Sections 3501, 3507. 1, and 3509 of the

Government Code by legislation enacted during the 1999- 2000

14 Strobridge testified, and the City admitted in its post- hearing brief, that after the
repeal of section 1107, the City unilaterally reverted to the former non- binding dispute
resolution procedure under the ERO, Resolution 6620.

15 In the court action, the City had argued that PER13 had exclusive jurisdiction over
POA' s claims since the bargaining unit includes non- sworn, civilian personnel.
12

Regular Session of the Legislature shall not apply to persons who are peace officers as defined in Section 830. 1 of the Penal Code.

Emphasis added.) The changes to the MMBA referred to above are those that granted PERB,
rather than the courts, exclusive initial jurisdiction over allegations of unfair practices under
the

MMBA. ( See MMBA, 3509( a).)

"

Peace officer" as defined under Penal Code section

830. 1 includes all of the police officers employed by a city. Courts have recognized that
MMBA section 3511 deprives PERB of jurisdiction over peace officers as stated in Penal Code
section

830. 1 . (

Coachella Valley Mosquito fi Vector Control Dist. v. Public Ltnpiownent

Relations Rd. ( 2005) 35 Cal. 4th 1072, 1077, fn. 1 ( Coachella Valley); see also Paulsen v.

Local No. 856 ofInternational Brotherhood of Teamsters ( 2011) 193 Cal. App.4th 823, 828

PERB lacks jurisdiction over peace officers under Penal Code section 830. 1, however, deputy
probation officers as defined in Penal Code section 830. 5 are subject to PERI3' s jurisdiction].)

Recently, PERB held that while MMBA section 3508( a) grants peace officers the right

to be represented in a peace- officer only unit, nothing in the MMBA requires them to exercise

this right, or prohibits them from being in a mixed unit including non- peace officers, if they so
choose. (

County of Calaveras ( 2012) PERB Decision No. 2252- M ( Calaveras).) In

adjudicating an unfair practice proceeding involving an exclusive representative that

represented a mixed bargaining unit, PERB crafted a remedy that necessarily affected the

rights of peace officers who had been formerly included in the mixed unit. ( County of Yolo
2013) PERB Decision No. 2316- M [ finding that while the employer had violated its local rules in the processing of a representation petition to remove peace officers from a general
unit, the right of those officers under the MMBA to be in a unit with only other officers did not

warrant returning the officers to the general unit]; see also County of Yolo ( 2013) PERB
Decision No. 2316a- M.) These cases demonstrate that PERB has exercised some remedial powers that affect the rights of employees excluded from its jurisdiction.

13

The City argues that PERB should dismiss the charge because it lacks jurisdiction over
peace officers in the unit and cannot fashion " piecemeal" remedies; therefore, it cannot award

a remedy affecting the rights of employees outside of its jurisdiction without obviating the
intent of MMBA section 3511. The POA counters that the City should be barred from
asserting that PERB lacks jurisdiction over the charge under the doctrine of judicial estoppel,

since the City argued in court that PERB has exclusive jurisdiction over the claims presented.
The POA also asserts that accepting the City' s argument would effectively deprive both non-

sworn unit employees and sworn peace officers from the ability to pursue their claims in any
forum. Both parties' arguments have some merit, but neither is ultimately wholly persuasive.

First, jurisdiction is defined by statute. It cannot be conferred by consent, waiver, or

estoppel. (

Public ' Employment Relations Bd. iv. Modesto City School District ( 1982) 136

Cal. App. 3d 881, 890.) Thus, no matter how disingenuous the City' s arguments before the court and PERB have been regarding jurisdiction, estoppel cannot award PERB jurisdiction

over employees whom the statute has expressly excluded from its authority. However, neither can PERB abdicate its jurisdiction over non- sworn bargaining unit employees, as the City
would have it do, simply because they are housed in a bargaining unit that includes employees

who are excluded from PERB' s jurisdiction. As previously noted, the employees in this case
have a right under the MMBA to be in the mixed unit configuration they have chosen.

Calaveras, supra, PERB Decision No. 2252.) The City does not, and cannot, assert that the

non- sworn unit personnel here are not employees within the meaning of MMBA section

3501( d), and therefore fall squarely under PERB' s exclusive initial jurisdiction. PERB may
not abandon its statutory duties simply because the crafting of an appropriate remedy under the
circumstances may require some finesse. Accordingly, PERB may not dismiss a charge on

14

jurisdictional grounds when there are allegations affecting the rights of employees under its
jurisdiction.

The Board has not had the opportunity to explain the limits of its remedial authority

over employees who are excluded from its jurisdiction where an employer' s alleged bargaining
violation may equally impact employees both within and without PERB' s jurisdiction. That

precise issue was recently pending before the Board in several consolidated unfair practice

charges, but was withdrawn due to the parties' global settlement prior to the Board issuing a
substantive decision on the issue. ( City of Lompoc ( 2013) PERB Decision No. 2328- M.)
Thus, considering the plain meaning of the statute as well as the PERB and court decisions
discussed herein, I conclude that as to alleged violations that could on/ t' affect employment

conditions of City police officers, PERB lacks jurisdiction to review or remedy those allegations. Alleged bargaining violations that could equally impact employment conditions of

both sworn and non- sworn unit employees are properly before PERB' s consideration, and
adjustment to remedy, if warranted, should be handled on a case- by-case basis.
2. Alleged Violations of MMBA section 3505

The POA alleges that the City' s failure to fulfill its bargaining obligations prior to
sponsoring the ballot initiatives at issue led to unilateral changes in employment conditions. 1w
Fairfield-Suisun Unified School District ( 2012) PERB Decision No. 2262 ( Fairfield-Suisun), 16
the Board stated:

To prove up a unilateral change, the charging party must establish that: ( I) the employer took action to change policy; ( 2) the
change in policy concerns a matter within the scope of

representation; ( 3) the action was taken without giving the

exclusive representative notice or opportunity to bargain over the

16 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 r. City of Vallejo ( 1974) 12 Cal. 3d 608.)
15

change; ( 4) the action had a generalized effect or continuing impact on terms and conditions of employment. ( Walnut Valley
Unified School District ( 1981) PERB Decision No. 160; Grant
Joint Union High School District ( 1982) PERB Decision No. 196
Grant).)

1d., p. 9.)
To avoid a charge of a unilateral change, an employer must meet and confer in good

faith with a recognized employee organization before sponsoring and introducing a ballot
initiative to the electorate that, if approved by voters, would change terms and conditions of
employment within the scope of representation. ( Seal Beach, supra, 36 Cal. 3d 591, 602.)

MMBA section 3504 defines the scope of representation as including " wages, hours,
and other terms and conditions of employment, except, however, that the scope of

representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order." A three- part inquiry is employed to test whether items that are not facially related to wages and hours fall within the scope of
representation under section 3504 of the MMBA. ( City ofAlhambra (2010) PERB Decision
No. 2139- M.)

First, it is determined whether the management action had a significant and

adverse effect on the wages, hours, or working conditions of the employees in the bargaining
unit. If not, then there is no duty to meet and confer. Second, if a significant and adverse
effect is shown, it must be determined whether it flowed from the implementation of a

fundamental managerial or policy decision. If not, then the duty to meet and confer applies.
Third, if both factors are present i. e., the implementation of a fundamental managerial or

policy decision resulted in a significant and adverse effect on the wages, hours, or working
conditions of the employees in the bargaining unit then a balancing test is used. The action is
within the scope of representation only if the employer' s need for unencumbered decision-

making in managing its operations is outweighed by the benefit to employer- employee

16

relations of

bargaining

about

the action

in

question.

hi., p. 13, citing Claremont Police

Officers Assn. r. City of Claremont ( 2006) 39 Cal. 4th 623, 638 ( Claremont).)

Only the second and third elements of the above- quoted test in Fairfield-Suisun, supra,
PERB Decision No. 2262 are in significant dispute under the facts presented in this case. The

City does not appear to contest, and it is also clear from the record, that the amendment of

section 1 105 and the repeal of section 1 107 resulted in alterations to long- standing policies in
the City, and that these changes, at least in the case of the repeal of section 1107, had a
sustained and generalized effect upon employment conditions."

If the City had not taken

action to introduce Measures A and B to the voters, these changes would not have occurred.

Regarding the disputed elements, the City argues that it had no duty to meet and confer
over either proposed ballot initiative because they did not impact employment conditions

within the scope of representation. The City further contends that, even assuming there was a duty to bargain, the POA waived its right to do so by repeatedly delaying the informal
discussions that the City had been inviting. Before reaching the latter argument, it must first
be determined whether either of the proposed ballot initiatives, in whole or in part, impacted
employment conditions within the scope of representation of employees within PERB' s

jurisdiction.
A. Section 1 105 Measure A

It is well settled that the future retirement benefits of current employees are a

mandatory subject of bargaining. ( County ofSacramento ( 2009) PERB Decision No. 2045- M;
Madera Unified School District ( 2007) PERB Decision No. 1907 ( Madera). The Board in
Madera explained:

17 As will be discussed further below, it is not clear that the amendment to section 1 105
had an effect on conditions of employment.

17

Employees can take their compensation as current wages, present

health benefits, or future healtli/ pension benefits. " Health and welfare

benefits" are a specifically enumerated term and condition of

employment under

EERA

section

3543. 2. 1181 Thus, . . . future

retirement health benefits for current employees are within the scope

of bargaining.

Id., p. 2.) In reaching this conclusion. PERB has relied on " long established principles originally
developed
under the

National Labor Relations Act ( NLRA)

j191." (

County ofSacramento, supra,

proposed decision, pp. 7- 8, citations omitted.) In County ofSacramento, the Board followed the

reasoning of the U. S. Supreme Court on this subject, stating:

To be sure, the future retirement benefits of active workers are part

and parcel of their overall compensation and hence a well-established

statuory subject of bargaining.

Id.,
proposed

decision, p. 8, quoting Allied Chem. & Alkali Workers, Local Union No. I v.

Pittsburgh Plate Glass Co. ( 1971) 404 U. S. 157, 181 ( Pittsburgh Plate Glass); emphasis added.) The court in Pittsburgh Plate Glass acknowledged that, in some circumstances, current employees

may choose to modify their future retirement benefits, stating that " they are free to decide, for
example, that current income is preferable to greater certainty in their own retirement benefits or,
indeed,
to their retirement

benefits

altogether."

Id.)

Had the City' s proposed initiative actually changed the levels of future retirement benefits
for current employees, the issue clearly would be within the scope of representation under the
above authorities and the analysis on this point would end. However, the amendment to section

1 105 proposed by the City did not in any way change, or propose to change in the future,
employees' retirement benefit levels. Rather, what Measure A proposed to do was to remove the

electorate' s veto polder over any plan by the City to terminate or modify its contract with
CaIPERS, or to decrease retirement benefit levels. Thus, the above cases do not provide direct

18 The Educational Employment Relations Act ( EERA) is codified at Government Code

section 3540 et seq.
19

The NLRA is

codified at

29 U. S. C.,

151 et seq.

18

guidance in determining whether Measure A required Seal Beach pre- election negotiations. ( Seal
Beach, supra, 36 Cal. 3d 591.)

Strobridge described section 1 105 as a " safety net," from the POA' s perspective.
Strobridge explained:

I] f we entered into negotiations with the City and the City, through
the meet and confer process, nict and conferred to the point of

impasse and then unilaterally imposed degradation of benefits, we always had the right to go back to the community, to the voters, and
to make our case to the voters on why that should not be fully implemented. So, 1 105 was the final component, if you will of the
impasse resolution process. j201

In some instances, the previous section 1 105 could have operated as POA intended.

However, there is a problem with characterizing the provision as an impasse resolution process.

That is, POA' s argument presumes that the voter-approval requirement only applied to instances of
bargaining impasses between the POA and the City, which is not true. Section 1105, in its
previous form, required voter approval regardless of whether an agreement existed between the
POA and the City to reduce retirement benefit levels. The POA' s argument implies that the Union
would never agree to reduce retirement benefit levels, but as the cases cited above recognize, there

are circumstances when employees, through their bargaining' representative, may choose to
decrease their future retirement benefits. In such an example, where an agreement to reduce
retirement benefits had been lawfully reached, the voters under the previous section 1105 would
have had the power to block the terms of the agreement. From that standpoint, the previous

enactment of section 1 105 could have as easily impeded the bargaining relationship between the

20 As discussed in greater depth below, dispute resolution procedures over wages, hours, and other terms and conditions of employment are subject to the duty for consultation in
good faith under MMBA section 3507( a)( 5). The PERB complaint did not allege that the City' s proposed modification of section 1105 violated MMBA section 3507.

19

POA

and

the

City

as resolved potential

bargaining impasses.'-

Thus, the POA' s depiction of

section 1105 as an impasse resolution process is rejected.

The City contends that, similar to the situation in Fresno Firefighters, supra, 71 Cal. App. 4th at p. 101, there was no duty to bargain over the proposed modification of section
1105, because the proposed modification did not affect or alter the " status quo" of unit
employment conditions. There is merit to this contention.

At issue in Fresno Firefighters was the employer' s proposed ballot initiative to repeal a

section of the city charter that established an eight- city formula to set a minimum threshold for

the employer' s initial bargaining position on unit salaries. Although the salary formula was
successfully repealed, there was no actual change to employees' salary levels and the employer continued to abide by the terms of the memorandum of understanding ( MOU) in place between
the parties. The court noted that the unions had no right under the MMBA to have the

employer' s initial bargaining position enshrined in the city charter and further noted:
R] epeal of the eight- city formula as a minimum threshold for

wages did not set wages at any particular level; more importantly,
repeal still permitted the parties to agree through the meet- and-

confer process that the exact same eight- city for iiuta would set
the wages under the MOU' s. [ Citation omitted.] As a result, we

conclude placing on the ballot a proposal to repeal charter section 809 did not in any manner change the " status quo" between the City and its firefighter and police employees, as that term is used
under the MMBA.

21 Moreover, pension rights of public employees vest upon acceptance of employment.

Miller v. State of California ( 1977) 18 Cal. 3d 808, 814.) Thus, in order for vested pension benefits to be lawfully decreased, the modification must be reasonable, bear a material relation
to the pension plan' s success, and

be

accompanied

by

comparable new advantages.

Valdes v.

The POA' s concerns regarding unilaterally imposed decreases in retirement benefit levels are not reasonably ameliorated by the electorates' approval or disapproval of such decreases. Whether or not the " safety net" of final voter approval was in effect, any unilaterally imposed decrease in benefit levels that did not conform
with the standard stated above would be subject to court challenge, irrespective of the voters'

Coo,( 1983) 139 Cal. App. 3d 773, 784.)

opportunity to weigh in.

20

Fresno Firefighters, supra, 71 Cal. App. 4th at pp. 100- 101; italics in original, underscore
added.)

The court also held that the employer had no duty to engage in bargaining through impasse before placing its repeal initiative before voters, because bargaining in that instance was permissive rather than mandatory. ( Fresno Firefighters, supra, 71 Cal. App.4th at p. 101.)
However, the court acknowledged that a different conclusion would have been reached had the
proposed

ballot initiative actually

changed

the

way that

wages were set. (/

bid.) Similarly, in

this case, Meastire A did not itself modify retirement benefit levels or alter the status quo, and the parties retained the right and obligation to bargain over any changes in retirement benefit

levels in the future.22 Had Measure A actually changed retirement benefit levels, then a
different conclusion would be reached. However, under the court' s rationale in Fresno

Firefighters, there was no duty to bargain over it before placing it on the ballot.
Finally, Measure A does not fit within the scope of representation under the threshold
prong of the Claremont test, because it has not been demonstrated that it had a significant and

adverse effect on unit wages, hours, or working conditions. ( Claremont, supra, 39 Cal. 4th at
p. 638; City ofAlhambra, supra, PERB Decision No. 2139- M.). As discussed here at length,
Measure A did not alter, or attempt to alter in the future, retirement benefit levels. For this
reason alone it could be concluded that it fails to pass muster under the Claremont test. The

inability of the POA to make its case to the voters that retirement benefits should not be

Z`' As the court aptly noted, the duty to bargain in good faith over wages required the
employer to continue to pay the same wages that had been bargained over, " unless and until the parties agreed otherwise or had exhausted the impasse procedures. That is true, however,

regardless of whether section 809 was still in the... Charter or had been repealed. The duty to
bargain in good faith established in the MMI3A is a natter of statewide concern and of

overriding legislative policy, and nothing that is or is not in a city' s charter can supersede that duty." ( Fresno Firefighters, supra, Cal. App. 4th at p. 100, citing Seal Beach, supra, 36 Ca1. 3d at p. 600.)
21

unilaterally reduced by the City, provides an example of, at best, speculative and negligible harm. If harm is merely speculative, it cannot reasonably be considered significant and

adverse. Furthermore, as previously discussed, the existence or demise of section 1 105 has no

bearing on the POA' s ability to challenge a unilateral imposition of reduced retirement benefits
that may abridge vested rights under California law. Since it is concluded that Measure A did

not impact matters within the scope of representation, and it cannot reasonably be construed as a dispute resolution procedure, the City had no duty to bargain with POA over its terms before
introducing it to voters.
B. Section 1 107 Measure 13

Regarding the repeal of section 1107, the PERB complaint alleges that MMBA section
3505 was violated as follows:

9. Before August 30, 2011, section 1 107 of the City Charter provided, in part, that no bargaining unit of employee of[ the PO4] shall i' illfitll, engage in a strike against [ the City].

10. On or about May 17, 2011, [ the City], through its City
Council, adopted a resolution to submit to the voters a ballot

measure which would completely repeal section 1 107 of the City

Charter.

The City] engaged in the conduct in paragraph 10 without prior notice to [ the POA] and without having afforded [ the POA] an opportunity to meet and confer over the decision to implement

11. [

the change in policy and/ or the effects of the change in policy.

12. By the acts and conduct described in paragraphs 10 and I I,

the City] failed and refused to meet and confer in good faith in
violation of Government Code section 3505 and committed an unfair practice under Government Code section 3509( b) and

PERB Regulation 32603( c).)231

Emphasis added.)

23 It was further alleged in paragraphs 13 and 14 of the complaint that the City' s
conduct in paragraph 10 also interfered with unit employees' right to be represented by the
POA and denied the POA the right to represent its members.

22

As highlighted by the City in its brief, subdivision ( B) of section 1107, which is the
strike prohibition and discipline clause that is referenced in paragraph 9 of the PERB
complaint, applies only to unit police `officers." The POA does not dispute that subdivision

B) applies exclusively to the police officers in the bargaining unit and, therefore, does not
apply to the non- sworn personnel in the unit. In its brief, the POA argues that a strike-

prohibition and discipline clause is precisely what was at issue in Seal Beach, supra, 36
Cal. 3d 591 and, therefore, the City was obligated to bargain with the POA over the proposed

repeal of that section of the Charter prior to introducing a ballot measure for that purpose.
This argument may have traction if this subdivision applied to employees under PERI3' s
jurisdiction. However, it does not. Thus, even if within the scope of representation and

therefore ordinarily subject to Seal Beach pre- election negotiations,. PERB here is without

power to enforce the bargaining obligation over this particular clause. Accordingly, PERB
lacks authority to find a violation based on the repeal of this portion of the Charter.

It would be fair to conclude that the City' s action regarding the repeal of section 1 107
that is alleged to have violated MMI3A section 3505 is limited to the repeal of subdivision ( B).

This is so, because paragraph 9 of the complaint specifically describes only the strike
prohibition clause as the policy in place prior to August 30. However, both parties' briefs

address whether each subdivision in section 1 107 was subject to bargaining. It is therefore

necessary to consider the remaining subdivisions separately to determine whether they

addresses matters, in whole or in part, that impact employment conditions within the scope of
representation for employees within PERB' s jurisdiction,

Subdivision ( A) of section 1 107 is simply a statement of policy against strikes by police

officers and firefighters, and for the establishment of a peaceful method of resolving disputes.

23

Accordingly, this subdivision does not itself impact employment conditions and no bargaining
obligation attached to its proposed repeal.

The POA characterizes subdivision ( C) of section 1 107 as a security and recognition

clause because the subdivision states that the City is obligated to bargain in good faith with the

POA as an exclusive representative. The POA also asserts that the City was obligated by
MMBA section 3507( a)( 3) and ( 4) to bargain with the POA before establishing a " different

procedure for exclusive representative status." 24 These arguments are not convincing.
Subdivision ( C) is merely a general restatement of bargaining rights and obligations under the
MMBA. As such, it does not itself impact employment conditions within the scope of

representation and, therefore, no bargaining obligation attached to its proposed repeal.

Although subdivision ( C) identifies the POA as the exclusive representative of the bargaining unit, there is no evidence that the subdivision itself set forth a procedure for the City to grant
such recognition or that its repeal established a different procedure for exclusive recognition.

Nor is there evidence that the repeal of subdivision ( C) had any effect on POA' s status as an exclusive representative. Accordingly, the POA' s assertion that bargaining obligations
pursuant to MMBA section 3507 were violated under the repeal of this subdivision is rejected.

Subdivision ( D) of City Charter section 1 107 set forth impasse resolution procedures,
including binding interest arbitration procedures, applicable to the entire POA bargaining unit. Regarding an alleged violation of MMBA section 3505, PERB has determined that binding
interest arbitration is a permissive subject of bargaining and, therefore, falls outside the scope
of representation. (

County ofSanta Clara ( 2010) PERB Decision No. 2120- M, p. 10; County

of Santa Clara ( 2010) PERB Decision No. 21 14- M, p. 10 ( collectively, " the Santa Clara

24 The PERB complaint, however, did not allege a violation of MMBA section 3507
specifically regarding the repeal of subdivision ( C) of section 1107.

24

cases").)

The Board' s determination was based on the Sixth District Court of Appeal decision

in DiQuisto v. County of Santa Clara ( 2010) 181 Cal. App.4th 236 ( DiQuisto), which held that
the particular binding interest arbitration provision at issue in both of the Santa Clara cases

was a non- mandatory bargaining subject. ( DiQuisto at pp. 255- 256.) In general, neither party
to the bargaining relationship has a duty to bargain with respect to subjects outside of the scope of representation. ( NLRB. v. Wooster Division of Bo g- Warner Corp. ( 1958) 356 U. S. 342, 349.) Thus, in the Santa Clara cases, the Board held that the employer had no duty to bargain

with employee organizations prior to proposing ballot initiatives that modified binding interest
arbitration provisions. Accordingly, regarding any alleged violation of MMBA section 3505

connected to the proposed repeal of subdivision ( D), the Santa Clara cases are controlling over

the issue and the City cannot be found to have violated its bargaining obligation under that
section of the statute.

Based on the foregoing discussion, the alleged violations of MMBA section 3503,
3505, 3506, 3509( b),
and

PERB Regulation 32603(

a), (

b), and ( c), by the City' s proposed

ballot initiatives to amend section 1 105 and to repeal section 1107 in paragraphs 3 through 14
of the PERB complaint are dismissed.

3. . Alleged Violation of MMBA Section 3507

MMBA section 3507, " Rules and Regulations," provides in part:

a) A public agency may adopt reasonable rules and regulations

after consultation in goodfaith with representatives of a
recognized employee organization or organizations for the
administration of employer- employee relations under this

chapter. The rules and regulations may include provisions for all of the following: 11 . . . 11]

5) Additional procedures for the resolution of disputes involving

wages, hours and other terms and conditions of employment.

25

Emphasis added.)

In interpreting MMBA section 3507( a), courts have consistently held that the

obligations imposed by the requirement for " consultation in good faith" are identical to those required to discharge the duty to meet and confer in good faith under MMBA section 3505. Independent Union of public Service Employees v. County of Sacramento ( 1983) 147

Cal. App. 3d 482, 488; Vernon Fire Fighters v. City of Vernon ( 1980) 107 Cal. App.3d 802, 821;
International Assn. of Fire Fighters Union v. City of Pleasanton ( 1976) 56 Cal. App. 3d 959,
976.) " Meet and confer in good faith" means that the parties have the mutual obligation:

P] ersonally to meet and confer promptly upon request by either party and continuefor a reasonable period oftime in order to exchange freely information, opinions, and proposals, and to
endeavor to reach agreement on matters Within the scope, of
representation[.]

MMBA, 3505; emphasis added.)

Though the above process is not binding in that after it is exhausted the employer may

unilaterally implement terms and conditions of employment, it nonetheless requires that the
parties " attempt to resolve

differences

and reach a common ground." (

Los Angeles County

Civil Service Commission v. Superior Court ( 1978) 23 Cal. 3d 55, 61- 62 ( Los Angeles County),
quoting Placentia Fire Fighters
v.

City of Placentia ( 1976) 57 Cal. App. 3d 9, 25.)

Since the

duty to meet and confer is the same as the required consultation in good faith under MMBA
section 3507, then any employer- proposed ballot initiative that would change a matter within
the scope of representation under MMBA section 3507 should require pre- election

negotiations. (Seal Beach, supra, 36 Cal. 3d at p. 602.)

MMBA section 3507( a) requires consultation in good faith over nine enumerated areas.
MMBA, . 3507( a)( l)-( 9).)

These nine areas are specifically defined and, therefore, stand

apart and are distinct from the general definition of the scope of representation in MMBA

26

section 3504. 25 In broad strokes, these areas cover the recognition process for employee
organizations, and certain access and information rights enjoyed by employee organizations.
Therefore, in order to satisfy the duty to consult in good faith, parties must " endeavor to reach
agreement" over

those areas. (

See MMBA, 3505.)

Relevant here is a mandate to consult in

good faith over procedures for the resolution of disputes between employee organizations and
employers over employment conditions. (

MMBA, 3507( x)( 5).)

There is no question that former section 1107, subdivision ( D), was the procedure in
place that was designed to resolve all disputes over wages, hours, and other terms and

conditions of employment between the POA and the City, and that the City proposed Measure

B to repeal it. Accordingly, the proposal of Measure B impacted the duty to consult in good
faith as defined in MMBA section 3507( a)( 5). 26 It is also clear that former section 1 107
applied equally to all members of the POA bargaining unit and, therefore, to employees within

PERI3' sjurisdiction. The City, however, argues that no Seal Beach pre-election negotiations
over Measure B were required based on the holdings of Santa Clara, supra, PERB Decision

Nos. 2120- M and 2I 14- M and DiQuisto, supra, 181 Cal. App.4th 236. ( Seal Beach, supra, 36
Cal. 3d 591.)

For the reasons discussed below, I reject this argument.

In the Santa Clara cases, the Board found no violation of the duty to bargain in good
faith under MMBA section 3505 by the employer' s approval of a ballot measure that modified

25 It is well- established that when considering a statute, the primary task is to ascertain
the intent of the Legislature, thereby giving effect to the law' s purpose. ( Coachella Valley,
supra, 35 Ca1. 4th at p. 1083.) Given that MMBA section 3507 very clearly defines separate areas of negotiability, in addition to those described elsewhere in the statute, it must be presumed that the Legislature intended a distinct bargaining obligation for MMBA section 3507. Accordingly, there is no need to employ the Claremont test, which analyzes MMBA section 3504, to determine the negotiability of subjects in section 3507. ( Claremont, supra, 39
Ca1. 4th 623.)

26 It is undisputed that after Measure B repealed section 1107, the City unilaterally
reverted to the former non- binding dispute resolution procedure under the ERO ( Resolution
6620).

27

a binding interest arbitration provision without completing Seal Beach pre- election

negotiations. ( Santa Clara, supra, PERB Decision No. 2120- M, p. 10; Santa Clara, supra,
PERB Decision No. 2114- M, p. 10; Seal Beach,
supra,

36 Ca1. 3d 591.)

The Board' s

conclusion on this issue was wholly based upon the determination of the court in DiQuisto, that binding interest arbitration provisions ( including the very provision at issue in those cases) are permissive subjects of bargaining and, therefore, are excluded from the scope of

representation as defined in MMBA section 3504. ( DiQuisto, supra, 181 Cal. App.4th at p.
2& 6r) However, neither the unions nor the PERB complaints in the Santa Clara cases alleged,
and therefore the Board had no reason to consider, whether the employer' s conduct constituted

a separate violation of the duty to consult in good faith under MMBA section 3507. Since that

issue was never before the Board, its holding in the Santa Clara cases cannot. dispose of the

specific allegation in the PERB complaint here that the City failed to consult in good faith over
the proposed repeal of Charter section 1 107 in violation of MMBA section 3507.

Clearly, the City was confident that recent developments in PERB and court case law

absolved the bargaining obligation over the binding interest' arbitration component of its
proposed ballot measure. The City communicated to the POA in a telephone conversation

between Dietrick and Berry Wilkinson on February 22, and a letter memorializing that
conversation on March I, that the City had concluded it " was not legally obligated to meet and

confer" before proposing its ballot initiatives in this instance. The City also attached

correspondence addressed to the firefighters' union to the March I letter, explaining its
analysis of the DiQuisto and Fresno Firefighters cases to the issue. ( DiQuisto, supra, 181
Cal. App. 4th 236; Fresno Firefighters,
supra,

71 Cal. App. 4th 82.)

However, as in the Santa

Clara cases, the court in DiQuisto did not discuss or consider an alleged violation of the duty

28

to consult in good faith under MMBA section 3507. In fact, the DiQuisto case did not directly
involve an alleged violation of the MMBA at all.

Chiefly at issue in the DiQuisto case was an allegation that the County of Santa Clara
had improperly expended public funds to promote a partisan position in an election campaign

when it bargained with unions to attempt to get them not to support a union- sponsored ballot

initiative to enact binding interest arbitration. ( DiQuisto, supra, 181 Cal. App.4th at pp. 242243.)

The court concluded that no such improper expenditure had occurred. ( Id. at p. 268.)

Regarding bargaining proposals over binding interest arbitration, the court stated:

Under state law, although interest arbitration is not a mandatory

subject of contract negotiations, it is a permissive subject about

which the parties properly may meet and confer. ( Fresno

Firefighters], supra, 7/ Cal.App. 4th at pp. 96- 97.) Likewise,

under federal law, binding interest arbitration " is not a mandatory

subject of bargaining, since its effect on terms and conditions of
employment during the contract period is at best remote."

N.L. R. B. v. Columbus Printing Pressmen and Assistants' Union

No. 252 ( 5th Cir. 1976) 543 F.2d 1161, 1166.)

Id. at p. 257; underscore emphasis added; italics in original.) The unions argued that it was

unlawful for the City to propose during negotiations that they fail to support the proposed

binding interest arbitration ballot measure. The court rejected this argument, finding that it

was lawful for the employer to discuss permissive subjects of bargaining at the table (Id. at p.
258), and that it did not offer the unions higher wages as a quid pro quo for their silence or

engage in campaign activity at the bargaining table, which may have demonstrated violations
of campaign laws. ( Id. at p. 263, 268.)

However, the court' s analysis of binding interest arbitration as a permissive bargaining

subject was limited to the duty to bargain under MMBA section 3505 over items within the

scope of representation under MMBA section 3504. ( DiQuisto. supra, 181 Cal. App.4th at p.
256.) The court never analyzed or considered the issue from the perspective of the distinct

29

duty to meet and consult in good faith under MMBA section 3507( a)( 5) over " procedures for
the resolution of disputes involving wages, hours and other.terms and conditions of
employment."

The same is also true of the court in Fresno Firefighters. In that case, the

conclusion that binding interest arbitration is a permissive subject of bargaining was also entirely based on MMi3A sections 3505 and 3504, and upon comparison of federal decisions interpreting the NLRA concluding that interest arbitration is a permissive bargaining subject.
Fresno Firefighters, supra, 71 Cal. App.4th at 91- 92, 96- 97.)

Resort to federal decisions under the NLRA provide no guidance in determining the scope of negotiability under MMBA section 3507, however, because the NLRA contains no

comparable provision. 27 For instance, the DiQuisto court' s reliance on the Fifth Circuit court' s observation regarding interest arbitration' s remote effects on employment conditions may help
determine negotiability under MMBA section 3504, which parallels NLRA provisions, but

provides no guidance in analyzing MMi3A section 3507, which does not. ( DiQuisto, supra,
181 Cal. App. 4th 236.)

As the court noted in Fresno Firefighters:

In combination, sections 3504 and 3505 essentially map out the same territory for bargaining ( conditions of employment) and exemption from bargaining ( management prerogatives) that has
been mapped out in federal case law under the National Labor Relations Act[.] [ Citations omitted].
Fresno Firefighters,
supra,

71 Cal. App. 4th

at

p. 91; italics in

original.)

In contrast here, using

the court' s phraseology, MMI3A section 3507 ventures into territory that has not been " mapped

out" by the NLRA. Since neither PER13, nor the courts, have considered whether there is a

distinct, mandatory duty to negotiate over binding interest arbitration procedures under MMI3A
section 3507, neither the Santa Clara cases, nor the DiQuisto or Fresno Firefighters cases are

27 While cases decided under the NLRA are generally instructive, they are not
controlling where PER13 is interpreting dissimilar provisions of California' s labor relations statutes. ( See, e. g., Los Angeles Unified School District ( 1998) PERB Decision No. 1267.)
30

clispositive of the issue. ( County of Santa Clara, supra, PERB Decision No. 2120- M; Connrn

ofSanta Clara, supra, PERB Decision No. 2114- M; DiQuisto, supra, 181 Cal. App.4th 236.)
As stated above, there is no question that former section 1107, subdivision ( D) was the

only procedure in place for the resolution of disputes involving wages, hours and other terms

and conditions of employment between the City and the POA, and that the City successfully
repealed it by sponsoring a municipal election for that purpose and then unilaterally enacted
the former dispute resolution procedure that been in place years earlier under the ERO. The

former section 1 107 also went beyond the traditional model of binding interest arbitration as
defined by the court in Fresno Firefighters, in that it applied to all disputes and grievances

between the POA and the City over employment conditions, and not just to those involving
successor contract negotiations. ( See Fresno Firefighters, supra, 71 Cal. App.4th at p. 96.)
The affirmative duty to consult in good faith over the dispute resolution procedures expressed

in MMBA section 3507( a), including the expanded binding interest arbitration here, cannot be
squared with the courts' and PERI3' s previous conclusions over the permissive nature of such

negotiations. Thus, the City had an affirmative duty to consult in good faith with the POA

before it introduced Measure B to the voters. ( See Seal Beach, supra, 36 Cal. 3d at p. 602.)
As noted previously, the first, second, and fourth elements of the test for unilateral
change in Fairfield-Suisun, supra, PERB Decision No. 2262 are met for this allegation,

because the City took action to change a policy that impacted the duty for consultation in good
faith under MMBA section 3507, which in turn resulted in sustained changes to dispute

resolution procedures.28 The City argues, however, that even if the duty to bargain applied, the

28 Since the courts have held that same requirements apply to satisfy the duty for
consultation in good faith and the duty to meet and confer in good faith, then the test applicable to an alleged unilateral change under MMBA section 3505 should apply to this
allegation.

31

POA waived its opportunity by repeatedly delaying to meet informally as the City urged,29 and
by failing to make an adequate demand to consult under MMI3A section 3507. Neither
argument has weight.

First, to satisfy the duty to meet and consult in good faith, the City must have met with
the POA for a reasonable amount of time, with a genuine intent to resolve differences and

reach agreement by finding a common ground. ( Los Angeles County, supra, 23 Cal. 3d at pp. 61- 62.) A genuine intent to reach an agreement cannot be demonstrated by inviting

informal" discussions and meeting once under that guise, while simultaneously declaring that
there is no legal duty to bargain. This mixed message is no different than an outright refusal to
bargain,
which is per se unlawful without

any determination

of subjective

bad faith. ( Pajaro

Valley

Unifier! School District ( 1978) PERB Decision

No.

51.)

While expressing a desire to

receive input from employee groups on an informal basis may provide evidence of the City' s subjective good faith efforts at fostering good employer- employee relations, it does nothing to
demonstrate, from an objective standpoint, that there was a genuine desire to reach agreement

here through consultation in good faith. What the City did demonstrate was that it believed. it
was entitled to unilaterally act, whether or not the POA expressed its opinion over the

proposed repeal of section 1107. This is tantamount to announcing a fait accompli. ( See City
of Sacramento ( 2013) PERB Decision No. 2351- M, p. 33 and the cases cited therein [ the

employer' s notice of a proposed change must be accompanied by conduct indicating that it is

entering negotiations with an open mind, otherwise it is " nothing more than the announcement
of a fait accompli"].)

29 An employer asserting a defense of waiver by inaction has the burden of proof to

show by a preponderance of evidence that it gave the union notice and opportunity to bargain
over the proposed change and the union failed to act. Where a request to bargain would have

been futile, however, the defense of waiver fails. ( Fairfield-Suisun, supra, PERB Decision No.
2262.)

32

Furthermore, an employer' s subjective good faith desire to reach agreement on some

subjects does not shield it from liability when it refuses to negotiate over a subject that it
contends is outside the scope of representation. ( City of Torrance ( 2008) PERB Decision

No. 1971- M, pp. 25- 26, citing Sierra Joint Community College District ( 1981) PERB Decision
No. 179 ( Sierra).)

In the Sierra case, the employer maintained that a release time proposal by

the union was outside the scope of representation and refused to negotiate over it. The

proposed decision of the administrative law judge concluded that the release time proposal was

within the.scope of representation, but found that under a totality of circumstances, the parties'
agreement on other matters excused the alleged refusal to negotiate over that subject. The

Board disagreed and reversed the proposed decision finding such an analysis inapplicable

where an employer refused to bargain over a subject based upon a denial of negotiability. (Id.,
p., 6, citing John S. Swift Company, Inc. ( 1959) 124 NLRB 394.) The Board explained:
In such a case, the lawfulness of the employer' s position turns on

the negotiability of the subject. Where the subject is negotiable,

the employer' s agreement on other matters is irrelevant.

Sierra, supra, pp. 6- 7.)

The precept of the cases cited above is applicable here: the lawfulness of the City' s
refusal to formally meet and consult turns on the negotiability of the subject. In this instance,
it has been concluded that the Measure B and the subsequent unilateral enactment of another

procedure for dispute resolution impacted the duty for consultation in good faith under MMBA

section 3507. Thus, it is irrelevant whether there was any significant delay, by the POA in

scheduling informal discussions with the City,30 because at the same time the City gave its

3 However, when the whole record is considered, there was not an unreasonable delay.
It was undisputed that the POA had historically had difficulty in setting meeting times and that
both parties' chief spokespersons were on vacation during overlapping relevant periods of time. Thus, scheduling a meeting within two months of formal notice does not demonstrate inaction" by POA under the circumstances, especially when, as here, the employer' s
33

official ( verbal) notice of the proposed ballot measure on February 22, it announced that it had no duty to negotiate over the issue as it believed it to be outside the scope of representation.
The City continued to maintain that position throughout the roughly two- month period of

communications with the POA before the April 19 City Council meeting. There was no indication that the City ever changed its position and decided that there was a legal duty to
negotiate prior to taking action to schedule the election on May 17. Thus, any demand to

bargain by the POA in this situation would have been futile,31 and accordingly, the City' s
waiver argument fails. ( Fairfield-Suisun, supra, PERB Decision No. 2262.)

Notably, the language of former section 1107, subdivision ( D)( 7), expressly
contemplated that the parties could negotiate an entirely different dispute resolution process rather than adhere to the binding arbitration procedure enacted under the Charter. Thus, it was
possible that, without pursuing a complete or even partial repeal, the parties could have

modified the existing binding interest arbitration provision or agreed to utilize another process.

Instead of exploring this kind of negotiated option the City decided to take a unilateral approach by proposing to abolish the City Charter provision. While the gamble involved in a
unilateral approach worked for the City with respect to Measure A, the same cannot be said

deadline" to complete negotiations is arbitrary and self-imposed. For instance, there is no information in the record to explain why the City Council decided it must schedule the election
for August 30 and not for some later time in light of the POA' s contentions that there was a

duty to first complete negotiations.

31 During argument at hearing, the City characterized the POA' s discussion in its
March 21 letter over the City' s obligation to meet and consult under MM13A section 3507 regarding Measure B, and whatever dispute resolution process should replace it if complete repeal was proposed, as " vague and confusing," and therefore insufficient to trigger a valid

bargaining demand. I disagree. Especially when considering the prior communication exchanged between the parties over negotiability, this letter clearly expressed for the first time that if the City proposed a complete repeal of City Charter section 1107, then the parties were obligated by MMBA section 3507 to negotiate over that and any subsequent dispute resolution
procedure. Thus, even if not futile under the circumstances, I find that the POA made an
adequate demand to meet and consult over the proposed changes.

34

with respect to Measure B. An employer' s refusal to bargain is at its own peril if that refusal is
later found,
as

in this instance, to be

unjustified.

Trustees ofthe California State University

2012) PERB Decision No. 2287- H, p. 14.)

Conclusion

The City violated the duty for consultation in good faith under MMBA section 3507

when it adopted a resolution to repeal section 1 107 without first completing pre- election
negotiations as required under Seal Beach. ( Seal Beach, supra, 36 Cal. 3d 591, 602.) This
action sustains the allegations at paragraphs 15 through 19 of the PERB complaint. As

previously stated, all other allegations in the PERB complaint are dismissed.
REMEDY

Pursuant to MMBA section 3509( b), PERB is empowered under section 3541. 3( 1) to:

T] ake any action and make any determinations in respect of these charges or alleged violations as the board deems necessary
to effectuate the policies of this chapter.

The City has violated the MMBA by failing its duty for consultation in good faith over

procedures for the resolution of disputes involving wages, hours and other terms and conditions of employment by proposing a ballot initiative to repeal the existing dispute

resolution procedures in section 1 107 without holding pre- election negotiations, and by
unilaterally enacting a different dispute resolution procedure after section 1 107 was repealed

by voters. Therefore, the traditional remedy in a unilateral change case is appropriate.32

County ofSacramento ( 2009) PERB Decision No. 2044- M; County ofSacramento ( 2008)

32 Part of such a remedy can include an order for the employer to " make whole" the
employee organization and unit employees for any losses suffered as a result of the unlawful conduct. The POA seeks such a remedy here, however, the only evidence presented in this regard was the expenditure of funds for the election to publicly campaign against approval of the ballot measures by voters. I conclude that such an award would go beyond PERB' s usual compensatory remuneration and, therefore, I decline to order it.
35

PERB Decision No. 1943- M.) The City will be ordered to cease and desist from its unilateral
action and to restore the status quo that existed at the time of its unilateral action. In this
context, that requires restoration of the terms of former section 1. 107, subdivision ( D) to the

City Charter.

The City argues that PERB lacks authority to invalidate or amend a City Charter
provision because the statutes establishing PERI3' s remedial authority do not extend, either

explicitly or implicitly, to invalidating the votes of" qualified California voters" exercising
rights under the California Constitution to amend a city charter. The City further argues, citing

Seal Beach, that only the courts can invalidate a City charter amendment once adopted by voters and filed with the Secretary of State, and that the California Constitution grants charter
cities the " absolute right" to propose charter amendments to the electorate. None of these

arguments are persuasive. First, the court in Seal Beach expressly found that the duty to
bargain in good faith under the MMI3A is a matter of statewide concern and that, as such,

general law prevails over the local enactments of a chartered city in regard to matters that

would otherwise be deemed a strictly municipal affair. (Seal Beach, supra, 36 Cal. 3d at p. 600, citing Professional Fire Fighters, Inc. v. the City of Los Angeles ( 1963) 60 Cal: 2d 276,

292; see also Younger v. Board of Supervisors ( 1979) 93 Cal. App. 3d 864, 870 [ preventing
entry of charter amendments passed by initiative measure where in donflict with superior state
law].)

The court then concluded that the employer could not avoid the pre- election meet and

confer requirement by use of its right to propose charter amendments. ( Seal Beach, supra, at

p. 602.) Thus, the City had no right to propose amendments to the Charter that violate the
MMBA.

Next, Seal Beach, and another case cited by the City for the proposition that ` only courts" can invalidate a charter amendment once adopted by voters, pre-dates the Legislature' s

36

granting to PERB exclusive initial jurisdiction to determine whether the charge of unfair

practice is justified and, if so, the appropriate remedy necessary to effectuate the purposes of
this chapter. ( Seal

Beach,

supra,

36 Ca1. 3d 591, 602; MMBA, 3509( b).)

In Local 21,

International Federation of Professional and Technical Engineers, AFL- CIO v. Thornton C.

Butch, .h. (1995) 40 Cal. App.4th 670 ( Professional and Technical Engineers), the court
recognized PERB' s exclusive jurisdiction to determine whether a ballot initiative that amended

the charter of the city and county of San Francisco divested a city school district of its rights
under the EERA. The court stated:

We agree with the trial court that the issues presented in this

case especially the extent to which local regulation of employment matters as prescribed by the charter might be

superseded by matters of statewide concern as set out in the EERA is a matter properly decided in the first instance, by
PERB.

d. at p. 676.)

Thus, courts have recognized that where employment matters under a city charter may
be in conflict with matters of statewide concern under collective bargaining laws, PERB, not
the courts, have exclusive initial jurisdiction. ( See also United Public Employees v. Public
Employment Relations Bd. ( 1989) 213 Cal. App. 3d 1 1 19.)

Furthermore, the court recognized

PERB' s " broad remedial powers" under the statutes it administers in answer to the union' s

question in that case of whether PERB could fashion an effective remedy. ( Professional and
Technical Engineers, supra, 40 Cal. App. 4th. at p. 679.) Thus, it is incongruent with the nature
of PERB' s exclusive initial jurisdiction to determine whether the MMBA has been violated to
conclude that PERB cannot restore the status quo ante in this case.

As a result of the above- described violation, the City has also interfered with the right
of employees to participate in an employee organization of their own choosing, in violation of
MMBA section 3506 and PERB Regulation 32603( a), and has denied the POA its right to
37

represent employees in their employment relations in violation of MMBA section 3503 and

PERB Regulation 32603( b). The appropriate remedy is to cease and desist from such unlawful
conduct. (

Rio /-/ undo Community College District ( 1983) PERB Decision No. 292.)

Finally, it is the ordinary remedy in unfair practice cases that the party found to have
committed a violation of the law' is ordered to post a notice incorporating the terms of the order at all work locations where notices to unit employees are customarily posted. Thus, the City is

ordered to do so in this case. Posting of such a notice, signed by an authorized agent of the

City, provides employees with notice that the City acted in an unlawful manner, must cease
and desist from its illegal action, and will comply with the order. It effectuates the purposes of
the MMBA to inform employees of the resolution of the case. ( Omnitrans ( 2010) PERB
Decision No. 2143- M.)
PROPOSED ORDER

Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, it has been found that the City of San Luis Obispo ( City) violated the Meyers- MiliasBrown Act ( MMI3A) ( Government Code,

3500 et seq.) The City breached its duty of

consultation in good faith with the San Luis Obispo Police Officers Association ( POA) in violation of Government Code section 3507 and 3509( b), and Public Employment Relations
Board ( PERB
or

Board) Regulation 32603(

c) (

Cal. Code

of

Regs, tit. 8,

31001 et icy.) when

it failed and refused to meet and consult with the POA over the City' s proposed ballot initiative ( Measure B) to repeal City Charter section 1107. By this conduct, the City also
interfered with the right of unit employees to participate in the activities of an employee

organization of their own choosing, in violation of Government Code section 3506 and PERB
Regulation 32603( a), and denied the POA the right to represent employees in their

38

employment relations with a public agency in violation of Government Code section 3503 and
PERB Regulation 32603( 6).

Pursuant to section 3509, subdivision ( a) of the Government Code, it is hereby

ORDERED that the City, its governing board and representatives shall:
A. CEASE AND DESIST FROM:
I.

Refusing to meet and consult with the POA prior to introducing ballot measures

to voters to repeal procedures for the resolution of disputes involving wages, hours, and other
terms and conditions of employment.

2.

Interfering with the. right of bargaining unit employees to be represented by an

Employee organization of their own choosing.

3.

Denying the POA their right to represent employees in their employment

relations with the City.

B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
I.

Rescind the provisions of Measure B adopted by the City and return to the status

quo that existed at the time the City failed and refused to meet and consult, including restoring
the provisions of former City Charter section 1107, subdivision ( D).
2. Within ten ( 10) workdays of the service of a final decision in this matter, post at

all work locations in the City, where notices to employees customarily are posted, copies of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of

the City, indicating that the City will comply with the terms of this Order. Such posting shall
be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to ensure that this Notice is not reduced in size, altered, defaced or covered with any
other material.

39

3. Within thirty (30) workdays of service of a final decision in this matter, notify
the General Counsel of PERB, or his or her designee, in writing of the steps taken to comply

with the terms of this Order. Continue to report in writing to the General Counsel, or his or her designee, periodically thereafter as directed. All reports regarding compliance with this Order
shall be served concurrently on the POA.
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 ( PER13 or 13oard) itself witliin 20 days of service of this Decision. The Board' s
address is:
Public Employment Relations Board
Attention: Appeals Assistant

1031 18th Street

Sacramento, CA 95811- 4124

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

E- FILE: PERBe- fle.Appealsnperb. 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 of business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 32I35( d), provided the

filing party also places the original, together with the required number of copies and proof of service,
in
tit.
the

U. S.

mail. (

Cal. Code Regs., tit. 8,

32135, subds. ( b), ( c) and ( d); see also Cal. Code Regs.,

8,

32090, 32091 and 32130.)

40

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).)

41

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

PUBLIC EMPLOYMENT RELATIONS BOARD

An Agency of the Slate of California

After a hearing in Unfair Practice Case No. LA- CE- 729- M, San Luis Obispo Police Officers Association v. the On' ofSan Luis Obispo, in which all parties had the right to participate, it has been found that the City of San Luis Obispo ( City) violated the Meyers-

Milias- Brown Act ( MMBA), Government Code section 3500 et seq. by failing to meet and consult with the San Luis Obispo Police Officers Association ( POA) prior to sponsoring a
ballot initiative ( Measure B) to repeal former City Charter section 1107.
As a result of this conduct, we have been ordered to post this Notice and we will:
A.

CEASE AND DESIST FROM:

I.

Refusing to meet and consult with the POA prior to introducing ballot

measures to voters to repeal procedures for the resolution of disputes involving wages, hours,
and other terms and conditions of employment

Interfering with the right of bargaining unit employees to be represented by an employee organization of their own choosing.
Denying the POA their right to represent employees in their employment relations with the City.
B. 3.

2.

TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE MMBA:
I.

Rescind the provisions of Measure B adopted by the City and return to

the status quo that existed at the time the City failed and refused to meet and consult, including
restoring the provisions of former City Charter section 1107, subdivision ( D).

Dated:

THE CITY OF SAN LUIS OBISPO

By:
Authorized Agent

THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY 30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.