City of Pittsburg (PERB 1563M)

2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

AFSCME LOCAL 512, AFL-CIO,

Charging Party, Case No. SF-CE-108-M
v. PERB Decision No. 1563-M
CITY OF PITTSBURG, December 8, 2003
Respondent.

Appearances: Beeson, Tayer & Bodine by Sheila K. Sexton, Attorney, for AFSCME
Local 512, AFL-CIO; Marc A. Fox, Director of Human Resources, for City of Pittsburg.

Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the AFSCME Local 512, AFL-CIO (AFSCME) of a Board agent’s
dismissal (attached) of its unfair practice charge. The charge alleged that the City of Pittsburg
(City) violated the Meyers-Milias-Brown Act (MMBA)' when its City Council employed the
services of a consultant to review and recommend what action should be taken in response to
two grievances filed by AFSCME.

The Board has reviewed the entire record in this case, including the unfair practice

charge, the warning and dismissal letters, AFSCME’s appeal and the City’s response. The

' MMBA is codified at Government Code section 3500 et seq.

Board finds the warning and dismissal letters to be free of prejudicial error and adopts them as
the decision of the Board itself.
ORDER
The unfair practice charge in Case No. SF-CE-108-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Neima joined in this Decision.
2

STATE OF CALIFORNIA 	GRAY DA VIS, Governor
I
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland,
CA
'!4612-2514
Tc:lcplrnnc:: (5 l
0)
622-102 l
Fa.x:
(510) <,22-1027
August 14, 2003
Keith Uriarte, Organizing Director
AFSCME Local 512
2000 Embarcadero, Suite 110
Oakland, CA 94606--530
Re: 	AFSCME Local 512, AFL-CIO
v.
City
of
Pittsburg
Unfair Practice Charge No. SF-CE-108-M
DISMISSAL LETTER
Dear Mr. Uriarte:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 30, 2003. AFSCME Local 512, AFL-CIO alleges that the
City
of
Pittsburg violated the Meyers-Milias-Brown Act (MMBA) 1 when its City Council
employed the services
of
a consultant to assist in reviewing AFSCME's appeal
of
two
grievances. The charge alleges that the City's action violates MMBA §3500, §3504
and
§3505
and the MOU grievance articles, and constitutes a unilateral change to the MOUs.
I indicated to you in my attached letter dated July 24, 2003, that the above-referenced charge
did not state a prima facie case. You were advised that,
if
there were any factual inaccuracies
or additional facts which would correct the deficiencies explained in that letter, you should
amend the charge. 	You were further advised that, unless you amended the charge to state a
prima facie case or withdrew it prior to August 4,2003, the charge would be dismissed.
I have not received either an amended charge or a request for withdrawal. 	Therefore, I am
dismissing the charge based on the facts and reasons contained in my July 24 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
1 The MMBA is codified at Government Code section 3500 et seq. 	The text
of
the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE- I 08-M
August 14, 2003
Page 2
(
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission
Cover
Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and
proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with
the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b ).)
Service
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 Regulation 32140 for the required contents
and
a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties
to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at ,the previously noted address. 	A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position of
each other party regarding the extension, and shall be accompanied by proof of
service
of
the
request upon each party. (Regulation 32132.)

SF-CE- I 08-M
August 14,. 2003
Page·}
Final Date
(
If
no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By__:::::=#~~...,,,,,,;~_:_
_
	_..:,_
__
J
La
Attachment
cc: Marc A. Fox

STATE OF CALlFORNIA 	GRAY DA VIS, Governor	(
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
I JJO Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (5 l 0) 622-1021
Fax: (5 I0) 622-1027
July 24, 2003
Keith Uriarte, Organizing Director
AFSCME Local 512
2000 Embarcadero, Suite 110
Oakland, CA 94606-5300
Re: 	AFSCME Local 512, AFL-CIO v. City of Pittsburg
Unfair Practice Charge No. SF-CE-108-M
WARNING LETTER
Dear Mr. Uriarte:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 30, 2003. AFSCME Local 512, AFL-CIO alleges that the
City of Pittsburg violated the Meyers-Milias-Brown Act (MMBA) 1 when its City Council
employed the services of a consultant to assist in reviewing AFSCME's appeal of two
grievances. 2 The charge alleges that the City's action violates MMBA §3500, §3504 and
§3505 and the MOU grievance articles, and constitutes a unilateral change to the MOUs.
My investigation has revealed the following. 	On January 9, 2003, you wrote a letter to Marc
Fox, Director of Human Resources for the City, responding to his phone message proposing
that AFSCME agree to have a hearing officer review AFSCME's appeal. 	You stated that such
an agreement would require modification of the MO Us, a procedure necessitating a reopening
of negotiations and ratification of any agreement by both parties. You asked that the City
submit a written proposal for your review. Apparently, no proposal was submitted.
On or about January 29, 2003, City Manager William Casey informed you in writing that the
City Council had received notice from AFSCME that it had submitted two grievances to the
City Council pursuant to Personnel Rule 17.5-City Council Review of City Manager Decision:
In the event the grievant disagrees with the decision of the City
Manager or designee, the complainant shall have the opportunity
to lodge a request for review by the City Council within seven (7)
days of receipt of the City Manager's or designee' s decision. 	The
City Council shall conduct a review of the City Manager's
decision with the authority to affirm, reverse, or modify the City
manager's or designee's decision.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 The two grievances arose under identical articles in MOUs covering two different
bargaining units.

SF-CE-108-M
July-24, 2003
Page 2
(
This rule is incorporated in the AFSCME MO Us as Step 4
of
Section 16.2, Grievance
Procedure.
In his letter, Mr. Casey stated that the City Council had appointed
Don Becker
of
2trees
interactive "to conduct the review on their
behalf
and provide a recommendation as to whether
to affirm, reverse, or modify the City Manager's decision." Mr. Casey also stated that
the
"City Council reserves as its sole right to affirm, reverse or modify the City
Manager's
decision."
On February 13, 2003, you responded to Mr.
Casey's
letter in writing, asserting that
the City
Council's
appointment
of
Mr. Becker constituted a unilateral change to the MOUs, and that
if
this action was not rescinded, you would file unfair practice charges with PERB. On
February 17, 2003, City Attorney Linda Daube responded to your letter, advising you that no
unilateral change had occurred. She stated that Mr. Becker would be conducting a fact finding
investigation that would be forwarded to the City Council for final determination.
On or about March 27, 2003, Mr. Becker sent you a letter asking for your assistance
in
his
review
by
replying to four questions regarding the substance
of
the grievances.
	He stated
that
he was aware
of
your objection to his role in the process, and gave assurances that
your
participation would not be used
by
the City as evidence against you before PERB. He
suggested that your response to his questions include a declaration that you are not
waiving
your right to assert that the City had committed an unfair by employing his services.
	He
also
stated that the City does not agree that it had done so.
On April 7, 2003, you replied to Mr. Becker by letter, stating simply that the City
Council's
delegation
of
its review
of
the AFSCME grievances violated the MOU.
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),3 PERB utilizes either the "per se" or "totality
of
the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. (Stockton Unified School District ( 1980) PERB Decision No. 143
.)4
Unilateral
changes are considered "per se" violations
if
certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters v. City
of
Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Association v. City
of
3 PERB Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq.
4 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. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SF-CE-108-M
July24, 2003
Page 3
Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
In this case, you assert that the employer unilaterally changed the terms of the MO Us by
contracting with an outside consultant to assist it in fulfilling its obligations under Step 4 of the
grievance procedure. 	You state that, in all other portions of the contract, the words "or
designee" are used when someone other than the stated employee may perform functions
assigned to that employee. You argue that since these words do not appear in conjunction with
the City Council in Step 4, the assistance of someone other than a City Council member is
forbidden absent a negotiated change to the MOUs.
It appears that you have confused the right of the City Council to employ a professional
consultant to assist with and provide input to a determination made by the City Council with
the delegation of the City Council's decision making authority. There is no indication from the
facts presented that anyone other than the City Council will determine the outcome of
AFSCME's appeal. The fact that the City Council has employed a consultant is a matter of
managerial prerogative that is not negotiable. Therefore, no unilateral change has taken place.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before August 4, 2003, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Labor Relations Specialist