County of Sacramento (PERB 1581M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SACRAMENTO COUNTY AIRCRAFT RESCUE
FIREFIGHTERS ASSOCIATION,

Charging Party, Case No. SA-CE-31-M
Vv. PERB Decision No. 1581-M
COUNTY OF SACRAMENTO, January 9, 2004
Respondent.

Appearances: Carroll, Burdick & McDonough by Timothy K. Talbot, Attorney, for
Sacramento County Aircraft Rescue Firefighters Association; Sacramento County Counsel by
Melvyn W. Price, Assistant County Counsel, for County of Sacramento.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the County of Sacramento (County) to a proposed decision
(attached) of the administrative law judge (ALJ). The ALJ held that the County violated the
Meyers-Milias-Brown Act (MMBA)! when it rejected a petition for unit modification filed by
the Sacramento County Aircraft Rescue Firefighters Association (Association). The
Association had sought to create a new bargaining unit comprised of the County’s fire
operations workers who were currently in the Operations and Maintenance Unit (OM Unit)

represented by the Stationary Engineers Local 39 of the International Union of Operating

Engineers (IUOE). The County rejected the Association’s petition on the ground that it was

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

prohibited by the County's contract bar rule. The ALJ found that although the County's local
ordinance did impose a "contract bar" on petitions for unit modification during the term of a
contract, the ordinance also prohibited any contracts exceeding three years. Since the County
had inappropriately agreed to a five-year contract with IUOE, the ALJ found that the local
ordinance provided no "contract bar" protection at all. Thus, the ALJ held that the County
violated the MMBA by rejecting the Association's petition for unit modification.
After reviewing the entire record in this case, including the proposed decision, the
County's exceptions and the Association's response, the Board finds the ALJ's proposed
decision to be free from prejudicial error and adopts it as the decision of the Board itself.
ORDER
Based on the foregoing findings of fact, conclusions of law, and the entire record in
this case, it is found that the County of Sacramento (County) violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3509 and 3502, and PERB
Regulation 32603(g)2, by giving status as a contract bar to a Memorandum of Understanding
longer than three years. Because the County's action violated section 2. 79 .105 of the local
Employee Relations Ordinance, adopted by the County pursuant to Section 3507 of the
MMBA, the County violated MMBA section 3509 and PERB Regulation 32603(g) and
interfered with employee rights protected under MMBA section 3502.
Pursuant to MMBA sections 3509(a) and 3541.3(i), it is hereby ORDERED that the
County, its governing board and its representatives shall:
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

A. 	CEASE AND DESIST FROM:
1.	
Refusing to accept and process in accord with County rules, the petition
for modification
of
the County's Operations and Maintenance Unit (OM Unit) filed
by
the
Sacramento County Aircraft Rescue and Firefighters Association (Association) on
December 4, 2001.
2. 	Interfering with employee rights by refusing to accept and process in
accord with County rules, the Association's petition for modification
of
the County's
OM
Unit.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Immediately accept and process in accord with County rules, the petition
for modification
of
the County's OM Unit filed by the Association on December 4, 2001.
2. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies
of
the
notice attached hereto as an Appendix.
3. 	Written notification
of
the actions taken to comply with this Order shall
be made to the Sacramento Regional Director
of
the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on the Association.
Members Whitehead and Neima joined in this Decision.
3

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SA-CE-31-M, Sacramento County Aircraft
Rescue Firefighters Association v. County of Sacramento, in which all parties had the right to
participate, it has been found that the County of Sacramento (County) violated the Meyers-
Milias-Brown Act (MMBA), Government Code sections 3509 and 3502, and PERB
Regulation 32603(g), by giving status as a contract bar to a Memorandum of Understanding
longer than three years. Because the County's action violated section 2. 79 .105 of the local
Employee Relations Ordinance, adopted by the County pursuant to Section 3507 of the
MMBA, the County violated MMBA section 3509 and PERB Regulation 32603(g) and
interfered with employee rights protected under MMBA section 3502.
Pursuant to MMBA sections 3509(a) and 3541.3(i), it is hereby ORDERED that the
County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to accept and process in accord with County rules, the petition
for modification of the County's Operations and Maintenance Unit (OM Unit) filed by the
Sacramento County Aircraft Rescue and Firefighters Association (Association) on
December 4, 2001.
2. 	Interfering with employee rights by refusing to accept and process in
accord with County rules, the Association's petition for modification of the County's OM Unit.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Immediately accept and process in accord with County rules, the petition
for modification of the County's OM Unit filed by the Association on December 4, 2001.
Dated: --------- COUNTY OF SACRAMENTO
By: ---------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTil'1G AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO COUNTY AIRCRAFT RESCUE
FIREFIGHTERS ASSOCIATION,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-31-M
PROPOSED DECISION
(11/27/02)
Appearances: Carroll, Burdick & McDonough by Timothy K. Talbot, Attorney, for
Sacramento County Aircraft Rescue Firefighters Association; Sacramento County Counsel by
Melvin W. Price, Assistant County Counsel, for County
of
Sacramento.
Before Ronald E. Blubaugh, Administrative Law Judge.
PROCEDURAL HISTORY
A union seeking to represent firefighters contends here that a county employer violated
its own local ordinance and thereby interfered with protected employee rights when it rejected
the union's petition for a unit modification. The county replies that the unit modification
petition was untimely filed under the contract bar provision
of
the local ordinance and that its
action was consistent with how it has interpreted the local rule for nearly 30 years.
This action was commenced on January 10, 2002, when the Sacramento County
Aircraft Rescue Firefighters Association (Union) filed an unfair practice charge against the
County
of
Sacramento (County). The charge alleged that the County violated various sections
of the County Employee Relations Ordinance (Ordinance) when on December 18, 2001, the
County rejected the Union's unit modification and representation petition.
The General Counsel of the Public Employment Relations Board (PERB or Board)
followed on March 26, 2002, by issuing a complaint against the County. The complaint

alleges that on or about December 18, 2001, the County violated two
of
its own local rules
when it rejected the Union's unit modification and certification petition. The complaint alleges
that the County violated local rule
2.
79 .105 when it asserted that the contract bar rule
precluded the filing
of
the petition during the first three years
of
a five-year agreement
covering the Operations and Maintenance unit. The complaint alleges that the County violated
local rule 2.79.080(£) when it refused to seek or allow modification
of
the Operations and
Maintenance unit to remove firefighter classifications because they are covered by a different
impasse procedure than other members
of
the unit.
By these actions, the complaint alleges, the County interfered with rights guaranteed by
the Meyers-Milias-Brown Act (MMBA or Act),1 specifically section 3509(b
)2
and PERB
Regulation 32603(g).3 The County filed an answer to the complaint on April 11, 2002,
admitting certain jurisdictional facts but denying all other allegations. The hearing was held in
1 The MMBA is set out at Government Code section 3500 et seq. Unless otherwise
indicated, all subsequent references are to the Government Code.
2 Section 3509 provides that:
(b) A complaint alleging any violation
of
this chapter or
of
any
rules and regulations adopted by a public agency pursuant to
Section 3507 shall be processed as an unfair practice charge by
the board. The initial determination as to whether the charge
of
unfair practice is justified and,
if
so, the appropriate remedy
necessary to effectuate the purposes
of
this chapter, shall be a
matter within the exclusive jurisdiction
of
the board. The board
shall apply and interpret unfair labor practices consistent with
existing judicial interpretations
of
this chapter.
3 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et. seq. Regulation 32603 provides in relevant part that it shall be an unfair practice for
a public agency to:
(g) In any other way violate MMBA or any local rule adopted
pursuant to Government Code section 3507.
2

Sacramento on September 9, 2002. With the filing
of
post-hearing briefs, the case was
submitted for decision on November 18, 2002.
FINDINGS
OFF
ACT
The County is a "public agency" within the meaning
of
section 3501(c). The Union is
an employee organization within the meaning
of
section 3501(a).
As written during the relevant period, section
2.
79. 080, the portion
of
the County
Ordinance that sets out unit determination criteria, reads in relevant part as follows:
Determination
of
Unit. (f) Employees shall not be included in a
unit which includes employees that are not covered by the same
impasse resolution procedures.
As written during the relevant period, section 2. 79 .105, the contract bar provision
of
the
County Ordinance, reads as follows:
Multi-Year Memorandums. (a) No decertification or
modification petitions shall be received, nor elections held in
respect to any unit whose employees are covered
by
a multi-year
memorandum
of
understanding whose term extends beyond the
calendar year in which an election might otherwise be held
pursuant to Section 2.79.095.
(b) Such memorandums shall not exceed a three-year term.
As written during the relevant period, section 2. 79 .110, the unit modification provision
of
the County Ordinance, reads in relevant part as follows:
Modification. (a) Modifications
of
units shall be proposed by
petition
....
(b) A petition for modification
of
a unit may be filed with the
county executive by an employee organization. The petition shall
contain such information as may be prescribed by the county
executive. The petition may only be filed from December 1st to
December 20 th
of
the calendar year prior to the year in which the
memorandum of understanding covering the unit is due to expire.
Regarding newly established units, a valid petition may not be
filed earlier than the calendar year succeeding the calendar year
in which the unit was determined. These time limitations shall
3

not apply to modifications initiated pursuant to subsections (e) or
(f), nor shall such modifications affect the timing of
modifications subject to initiation by petition.
(d) If the county executive and concerned employee
organizations are unable to agree on a modification of the unit,
any of the parties may petition to have an arbitrator decide on the
modification. The petition shall contain such information as may
be prescribed by the county executive. The arbitration procedure
shall be the same as prescribed under Section 2.79.070 of this
chapter. Said f etition may be filed no earlier than January 5 th and
by January 1ot , except that this limitation shall not apply to
modifications initiated pursuant to subsections (e) and (f). The
matter shall be heard, submitted and decided by March 10 th .
Only the county executive and concerned organizations shall
participate in selection of the arbitrator and in the conduct of the
arbitration.
As written during the relevant period, section 2. 79 .111, an alternate unit modification
provision of the County Ordinance, reads in relevant part as follows:
Modification of Units by Petition of the County Executive.
(a) As a result of changes in the law governing employee
relations, the impasse procedures generally governing county
employees differ from the impasse procedures governing certain
county employees who are firefighters or law enforcement
officers. Where employees governed by different impasse
procedures are included within the same representation unit, there
is an irreconcilable conflict in the method of resolving any
impasse, where said conflict creates the potential for undermining
the integrity of the employee relations program. This section
serves as the means whereby the prohibition of Section
2.79.080(£) may be effected, thereby ensuring that all employees
in a representation unit are governed by the same impasse
resolution procedures.
(d) The county executive shall give notice of any proposed
modification between December 1st and December 20 th of any
calendar year; provided that, where an employee organization
files a petition to create a new unit or modify an existing unit
during said December period, the county executive shall have
until five p.m. on January 20 th to give notice of any proposal to
create a different unit or to modify an existing unit in answer to
any petition for arbitration filed by said employee organization.
Any employee organization certified as recognized in respect to
units proposed for modification shall be notified and joined as a
4

concerned employee organization in the unit modification
proceedings.
The Union was formed in late 2001 to represent County employees in the job
classifications of Fire Operations Worker (Level I and Level II) and Senior Fire Operations
Worker. The 45 employees in these job classes are responsible for fire suppression, fire rescue
and the servicing of all types of aircraft with fuel and oil. In addition, they fight structural fires
and have some responsibility in airport security. They are considered safety employees and are
thus entitled to higher retirement and worker's compensation benefits4 than non-safety
employees. Fire operations workers are stationed at the County's two airports, Sacramento
International Airport and Mather Airport.
Fire operations workers are members of the County's Operations and Maintenance
bargaining unit, which is represented by Stationary Engineers Local 39 of the International
Union of Operating Engineers (IUOE). With approximately 1,119 budgeted positions in some
50 different job classifications, the Operations and Maintenance Unit is the fourth largest of
the County's 24 bargaining units. Fire operations workers are the only safety employees in
the Operations and Maintenance bargaining unit. On August 31, 2001, the County and IUOE
entered into a Memorandum of Understanding (MOU) covering the period from July 1, 2001,
through June 30, 2006.
On December 4, 2001, the Union filed a petition for modification of the Operations and
Maintenance Unit to create a new unit composed of employees in the job classifications of Fire
Operations Worker (Level I and Level II) and Senior Fire Operations Worker. Accompanying
the petition for unit modification was a showing of support from employees in the three job
classifications and a request by the Union to represent employees in the proposed new unit. In
4 See sections 31469.3 and 31470.4 and Labor Code section 4850.
5

its petition for unit modification, the Union argued that since January 1, 2001, fire operations
workers were the only employees in the Operations and Maintenance Unit subject to an
impasse resolution procedure that concluded with interest arbitration. 5 "This fact creates a
'conflict' in the method ofresolving any impasse within the bargaining unit," the petition
reads. "Requiring those classifications to remain in the Operations and Maintenance Unit has
the purpose and effect of depriving those employees of their collective bargaining rights and
undermining the integrity of the employee relations program."
Moreover, the Union asserted, fire operations workers "do not share an identifiable
community of interest with other non-safety employee classifications" and their retention in
the Operations and Maintenance Unit "is inappropriate and does not contribute to sound
employer-employee relations." The Union argued that even though there was an agreement in
existence between the County and IUOE the agreement served as no bar to the unit
modification because the contract was for a term longer than three years. The Union argued
that under section 2.79.105 of the County Ordinance, a MOU may not exceed a term of three
years and the contract bar was thus inapplicable. In its petition, the Union further argued that
under section 2. 79.111 of the Ordinance, the County Executive is permitted to petition for
modification of any unit in which employees do not share a common impasse procedure. 	The
Union acknowledged that the Ordinance "seemingly does not afford that same right to
employee organizations" but argued that arbitrary or capricious denial of unit modification
would be bad faith.
In a letter dated December 18, 2001, Steve Lakich, the County director of employee
relations, denied the petition as "not validly filed" under the contract bar provision, of
5 Section 1299 et seq. of the Code of Civil Procedure.
6

the County Ordinance. Mr. Lakich noted that the MOU covering the Operations and
Maintenance Unit was in its first year of a five-year agreement. It has been the County's
consistent interpretation, Mr. Lakich stated, that when a unit has been covered by an MOU
longer than three years, no unit modification or decertification petitions can be accepted during
the first three years of its term. The restriction on the length of an MOU has never been
interpreted to invalidate an MOU or to make the contract bar inapplicable, he wrote.
In his letter of December 18, 2001, Mr. Lakich also rejected the Union's request to
invoke section 2. 79 .111 of the County Ordinance as an exception to the contract bar provision.
Mr. Lakich wrote that only the County Executive has authority under the Ordinance to initiate
a severance request for the purpose of complying with the prohibition against placing
employees with different impasse procedures. Any exercise of the provision would trigger an
omnibus arbitration to determine unit placement for all public safety employees, Mr. Lakich
wrote.
At the hearing, Mr. Lakich testified that section 2. 79 .111 was written in response to the
passage of SB 402 (Code of Civil Procedure section 1299 et seq.) that instituted interest
arbitration to resolve collective bargaining impasses for police and firefighters. However, he
testified, section 2. 79 .111 has never been implemented because of uncertainty over the
constitutionality of SB 402. He said the County did not want to create new units on the basis
of 	impasse procedures because it was not 	that 	law 	legal
challenge. He said he anticipated major problems with employee organizations that might lose
members 	a unit modification which, he testified, would have been very unhappy to have
their units split when there was uncertainty about the law.
7

The County presented evidence that over the years it had rejected unit modification and
decertification petitions because they had not been filed within the window period or had been
filed in the wrong year and were subject to a contract bar. However, the County offered no
evidence of any prior situation where it had rejected a unit modification petition filed within
the first three years of an MOU with a duration longer than three years.
Subsequent to the events at issue, the County amended section 2. 79 .105 of the
Ordinance to permit MO Us of five years upon mutual agreement. The amendment, which was
adopted on or about January 15, 2002, reads as follows:
Multi-Year Memorandums. (a) Except as provided under
section 2. 79 .111, no decertification or modification petitions shall
be received, nor elections held in respect to any unit whose
employees are covered by a multi-year memorandum of
understanding whose term extends beyond the calendar year in
which an election might otherwise be held pursuant to
Section 2.79.095.
(b) A multi-year memorandum of understanding shall not exceed
a three-year term; provided that, by mutual agreement, the
County and an employee organization may enter into
memorandums not exceeding a five-year term.
Mr. Lakich testified that the revised language was drafted because of the County's
desire to have longer agreements with the exclusive representatives that would all expire on
July 1, 2006. He said the unions replied that if the contracts were to be up to five years in
length, then the contract bar should be five years, also. He said he accepted the unions'
argument but wanted to ensure that an interest arbitrator would be precluded from imposing a
contract oflonger than three-years should the interest arbitration provisions for police and
firefighters be upheld and go into effect. It is for this reason that the revised Ordinance permits
MOUs of longer than three years only "by mutual agreement" of the County and a union.
8

ISSUES
Did the County interfere with protected rights by violating local rules adopted pursuant
to section 3507 when, on or about December 18, 2001, it:
1.	
Rejected the Union's petition to modify the Operations and Maintenance Unit
by asserting that the contract bar provision
of
section
2.
79 .105
of
the local Ordinance
precluded the filing
of
a petition for the first three years
of
a five-year agreement?
2. 	Refused to seek or allow modification
of
the Operations and Maintenance Unit
under section 2.79.080(£) to remove firefighter classifications because they are covered
by
a
different impasse procedure from other employees in the Operations and Maintenance Unit?
CONCLUSIONS OF LAW
Public agencies are empowered under section 3507 to "adopt reasonable rules and
regulations after consultation in good faith with representatives
of
an employee organization or
organizations for the administration
of
employer-employee relations." This includes rules
involving the "recognition" (section 3507(c)) and "exclusive recognition" (section 3507(d))
of
employee organizations. It is an unfair practice under section 3509 and PERB Regulation
32603(g) for a public agency employer to violate the MMBA or to violate any rules and
regulations adopted pursuant to section 3507.
The County has adopted rules under section 3507 that establish a procedure whereby an
employee organization can become an exclusive representative. These include a contract bar
and rules pertaining to unit modification and the decertification
of
an incumbent exclusive
representative. There is no challenge here to the reasonableness
of
the County's rules as they
were in effect during the relevant period.6 Rather, it is the Union's contention that the County
In its post-hearing brief, the Union for the first time asserts that PERB should set
aside as "an unreasonable local rule" the 2002 amendment to section 2. 79 .105 of the Ordinance
9

did not apply the rules in accord with their literal meaning, thereby violating the rules and
interfering with the section 3502 right
of
employees to form, join and participate in the
activities
of
an employee organization.
The Union argues that under section 2. 79 .105
of
the County Ordinance, as it existed
when the Union filed its petition for unit modification on December 4, 2001, an MOU could
not exceed a three-year term. Nevertheless, the Union continues, the MOU that the County
entered with IUOE on August 31, 2001, was for a term
of
five years. 	Section 2.79.105 reflects
an unambiguous intent to limit the maximum term
of
any multi-year agreement to three years
and thus, the Union asserts, the County's agreement with IUOE cannot stand as a bar to a unit
modification. The Union rejects the argument that the contract bar provision
of
the Ordinance
is applicable in the first three years
of
a five-year agreement, describing such an interpretation
as contrary to all rules
of
statutory construction. The Union makes no claim that the
MOU
is
invalid between the parties. However, the Union concludes, because a contract longer than
three years was specifically prohibited by the Ordinance, an agreement
of
five years cannot
stand as a contract bar to the Union's unit modification petition.
The Union argues further that in refusing to permit modification
of
the Operations and
Maintenance Unit, the County has violated the prohibition against placement
of
employees
subject to different impasse procedures in the same bargaining unit. The Union points to
section 2.79.0S0(f)
of
the Ordinance which sets out such a restriction in the unit determination
criteria. The Union argues that although the ordinance purports to restrict to the County
executive authority to seek a unit modification because of differing impasse procedures, the
Union cannot be banned from insisting on enforcement of the Ordinance.
that established a five-year contract bar. The question of the reasonableness of the County's
2002 amendment to the Ordinance was not litigated and will not be considered here.
10

The
County rejects these arguments, asserting that its contract bar rule was patterned
after the contract bar rule enforced by the National Labor Relations Board (NLRB). Under
NLRB cases, the County argues, a contract bar will block a decertification for up to three
years, depending upon the length
of
the contract. Where a contract is for more than three
years, the County continues, the NLRB does not find the contract bar invalid but will enforce it
only during the first three years. The County argues that continuously since 1972 it has had in
place a three-year contract bar that was intended to parallel the practice
of
the NLRB. 	This is
apparent, the County argues, from the way the County rule is written, from the necessary
assumption that the County was aware
of
how the NLRB applied the rule, from the way the
County has historically applied the rule and from the expectation
of
both the County and the
unions representing County employees as demonstrated by their entry into agreements
of
longer than three years. The County argues that PERB cases interpreting other California labor
relations statutes can be harmonized with NLRB practice except where the PERB decisions are
rooted in unique statutory language not applicable here.
The County describes as "make weight" the argument that the Union has a right to seek
a unit modification on the grounds that the employees it seeks to represent are covered
by
a
different impasse procedure from other employees in the Operations and Maintenance Unit.
By the express terms
of
section 2. 79 .111, the County argues, only the County executive has the
authority to seek a unit modification for the purpose
of
separating employees subject to
different procedures. Moreover, the County continues, the statute that purports to create
interest arbitration for police and firefighters is under legal attack and until that litigation is
resolved, the County concludes, there is no basis for a unit modification. The County argues
that it will not take action to sever employees from existing units absent greater legal certainty
that there is a need to do so. 
11

Contract Bar
The MMBA sets no maximum length for the term
of
an MOU and it contains no
provision that establishes a contract bar as a limitation on the exercise
of
employee choice in
the selection
of
an exclusive representative.7 Such rules as are applicable here are to be found
only in the County Ordinance. In the interpretation
of
the Ordinance, the County looks for
guidance to the practices
of
the NLRB.
Like the MMBA, the National Labor Relations Act contains no contract bar in the text
of
the statute. As one court noted:
....
The rule does not find its source in the express language
of
the statute, nor is it judicially compelled. Rather, the [NLRB]
has formulated the rule and thus has the principal discretion
to waive or apply it in order to effectuate its policy
underpinnings
.....
[NLRB v. Circle A&W Products Co. (9 th Cir.
1981) 647 F.2d 924, 926 [107 LRRM 2923, 2924].]
Accordingly, the NLRB over the years has changed the rule significantly. Originally, the
NLRB allowed the length
of
the contract bar to vary from industry to industry (Cushman's
Sons (1950) 88 NLRB 121 [25 LRRM 1296]). Then, after setting the maximum length
of
the
contract bar at a uniform two years (Pacific Coast Association
of
Pulp and Paper
Manufacturers (1958) 121 NLRB 990 [ 42 LRRM 1477] (Pacific Coast)), the NLRB increased
the maximum length to three years (General Cable Corporation (1962) 139 NLRB 1123
[51 LRRM 1444] (General Cable).) As the NLRB currently applies the rule, the maximum
length
of
a contact bar remains at three years. A contract
of
more than three years is not illegal
7 It could be argued that the failure of the Legislature to place a contract bar in the text
of the MMBA demonstrates a legislative intent that there be no contract bar rule at the local
government level. (See Service Employees International Union v. City of Santa Barbara
(1981) 125 Cal.App.3d 459, 467-468 [178 Cal.Rptr. 89].)
12

and it is fully effective as a contract bar, but only during the first three years. (Vanity Fair
Mills, Inc., Clarke Mills Division (1981) 256 NLRB 1104 [107 LRRM 1331].)
The County's contract bar rule differs in one significant respect from that
of
the NLRB.
The County rule was legislatively written by the Sacramento County Board
of
Supervisors in
section 2.79.105
of
the local Ordinance. As a legislative enactment, it is not subject to
discretionary application "to waive or apply it in order to effectuate its policy underpinnings."
(NLRB
v.
Circle A&W Products Co., supra., 647 F.2d 924.) Rather, as the County states in its
brief, interpretation
of
the Ordinance must be approached as with a statute in an effort to
ascertain the intent
of
the legislative body so as to effectuate the purposes
of
the law. 	(County
of
Madera v. Superior Court (1974) 39 Cal.App.3d 665, 668 [114 Cal.Rptr. 283].)
....
In determining such intent, a court must look first to the
words
of
the statute themselves, giving to the language its usual,
ordinary import and according significance,
if
possible, to every
word, phrase and sentence in pursuance
of
the legislative
purpose. A construction making some words surplusage is to be
avoided. The words
of
the statute must be construed in context,
keeping in mind the statutory purpose, and statutes or statutory
sections relating to the same subject must be harmonized, both
internally and with each other, to the extent possible. [Citations.]
Where uncertainty exists consideration should be given to the
consequences that will flow from a particular interpretation.
[Citation.] Both the legislative history
of
the statute and the
wider historical circumstances
of
its enactment may be
considered in ascertaining the legislative intent.
...
	[Dyna-Med,
Inc. v. Fair Employment and Housing Com. (1987) 43 Cal.3d
1379, 1386-1387 [241 Cal.Rptr. 67].]
The goal
of
a contract bar is to promote stability in labor-management relations while at
the same time ensuring that employees retain free choice to remove or change an exclusive
representative within some reasonable period. Section 2. 79 .105 of the County Ordinance
achieves this goal by barring decertification or unit modification petitions during the existence
of a multi-year contract, except for a window period at specified times. As written during the
13

relevant period, section
2.
79 .105(b) provided that "[ s]uch memorandums shall not exceed a
three-year term."
The County reads section 2. 79 .105(b) to be a mere codification
of
the NLRB policy that
an MOU
of
longer than three years will not be effective to bar an election beyond the third
year. The County argues that it has consistently applied the Ordinance in this manner for 30
years, although it presented no evidence
of
any prior occasion involving an attempt to modify a
unit within the first three years
of
an MOU with a term
of
more than three years.
However, as the Union observes in its brief, the County did not adopt the language used
in NLRB decisions in writing its contract bar. NLRB decisions explicitly state that contracts
having fixed terms longer than three years "will be treated for contract bar purposes as three-
year agreements and will preclude an election for only their initial three years." (General
Cable,
51
LRRM at 1445.) Rather than write a contract bar in language substantially similar to
that employed in NLRB decisions, the County chose in the local Ordinance to set the
maximum term
of
labor agreements at three years. 8 The obvious implication is that by
employing language that differs from that used by the NLRB the authors
of
the County
Ordinance intended a different purpose.
I conclude that the County's interpretation does not give to the language
of
section
2. 79 .105(b) "its usual, ordinary import" and accord significance,
"if
possible, to every word."
(Dyna-Med, Inc. v. Fair Employment and Housing Com., supra, 43 Cal.3d 1379.) Although,
8 Nor did the County choose to model its contract bar after several
of
the California
statutes that contain contract bars. See section 3577(b)(l)
of
the Higher Education Employer-
Employee Relations Act; Labor Code Section 1156.7(b) of the Agricultural Labor Relations
Act and Public Utilities Code Section 125521, pertaining to a transit board. As the Union
points out in its brief, each of these contract bars is written in language that makes a clear
distinction between the duration of a collective bargaining agreement and the maximum period
that an agreement may act as a bar to an election.
14

the County would read the Ordinance
as
if
it stated that "MOUs longer than three years shall
be effective to bar an election only for the first three years," what the Ordinance actually states
is that MOUs shall not "exceed a three-year term."
Section 2. 79 .105 has two parts that must be seen as a whole for the purpose
of
interpreting the intent
of
its authors. 	Subsection (a) prohibits a decertification or unit
modification petition from being filed when a multi-year MOU extends beyond the calendar
year in which an election might otherwise be held. Subsection (b) provides that "such"
MOU
s,
meaning those that would prohibit a decertification or unit modification, "shall not exceed a
three-year term." Read together, the two subsections create a contract bar but limit its effect
only to those MOUs that do not "exceed a three-year term."
If
an MOU is longer than three
years, it might be binding on the parties but it would not serve as an election bar.
This conclusion is consistent with the holding
of
the PERB in San Juan Unified School
District (1995) PERB Decision No. 1082 (San Juan). In San Juan, the Board was required to
interpret section 3544.7, the contract bar provision
of
the Educational Employment Relations
Act (EERA).9 Section 3544.7 prohibits an election while there "is currently in effect a lawful
written agreement" between a public school employer and an exclusive representative
of
its
employees. Section 3540.1 (h) states in relevant part that a collective bargaining agreement
9 The EERA is codified at section 3540 et seq. Section 3544.7 reads in relevant part as
follows:
(b) No election shall be held and the petition shall be dismissed
whenever either
of
the following exist:
(1) There is currently in effect a lawful written agreement
negotiated by the public school employer and another employee
organization covering any employees included in the unit
described in the request for recognition, or unless the request for
recognition is filed less than 120 days, but more than 90 days,
prior to the expiration date of the agreement.
15

"may be for a period not to exceed three years." Citing an earlier Board decision,
10
the hearing
officer in San Juan concluded that
"a
contract more than three years in duration is an illegal
agreement." Because the parties in San Juan had entered an agreement
of
38 months, the
hearing officer concluded that the agreement was illegal and therefore did not serve as a
bar
to
an election. The Board did not specifically adopt the conclusion that an agreement that
exceeded 36 months was illegal, but it did agree "that under EERA a written agreement that
exceeds 36 months does not provide a contract bar against representation petitions."
The County, however, would limit San Juan solely to a holding that the contract
bar
was not applicable in the last two months
of
a 38-month contract. In the County's view,
nothing in the case suggests that the contract bar would not have been effective for the first 36
months
of
the contract's life.
The exact language
of
the Board's holding in San Juan reads:
As a threshold decision, the hearing officer ruled that the
38-month collective bargaining agreement between the District
and CSEA did not bar the Teamsters' severance petition. We
agree with the hearing officer that under EERA a written
agreement that exceeds 36 months does not provide a contract bar
against representation petitions.
Nowhere in this language is there any hint
of
a conclusion that the Board would have
recognized the effectiveness
of
the contract bar during its first 36 months. Rather, I interpret
San Juan as treating contracts
of
longer than three years the same as the Board treats contracts
of indefinite duration, i.e., that they may be binding on the parties but will not serve as a
contract bar for any period
of
time. (See, State
of
California (Department
of
Personnel
Administration) (1989) PERB Order No. Ad-191-S; see also, Pacific Coast at 42 LRRM 1478-
10 San Benito Joint Union High School District (1984) PERB Decision No. 406.
16

For these reasons, I conclude that the County interfered with rights protected by
section 3502
11
when on December 18, 2001, it rejected the Union's unit modification and
certification petition. The County's action was a violation
of
section 2. 79 .105
of
the County
Ordinance as written at that time because it granted status as a contract bar to a contract longer
than three years in length. The County thereby committed an unfair practice under
section 3509(b) and PERB Regulation 32603(g).
Impasse Procedure
In 2000, the Legislature enacted and the Governor signed into law provision for binding
interest arbitration to resolve collective bargaining impasses involving police and firefighters.
(See Code
of
Civil Procedure section 1299 et seq.) In response to this change, the County
revised the Ordinance to add section 2.79.080, which prohibits employees not covered
by
the
same impasse procedure from being in the same bargaining unit, and section 2.79.111, which
gives the County Executive authority to seek a unit modification to separate employees subject
to different impasse procedures.
However, the County has not attempted to modify its bargaining units to separate
employees on the basis
of
differing impasse resolution procedures. The statute granting
interest arbitration to police and firefighter units was soon attacked in court and in April
of
2002 it was held to be in violation
of
the California Constitution. (County
of
Riverside v.
11
Section 3502 provides that:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities
of
employee organizations of their own choosing for the
purpose
of
representation on all matters of employer-employee
relations. Public employees also shall have the right to refuse to
join or participate in the activities of employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
17

Superior Court (2002) 97 Cal.App. 4 th 1103 [118 Cal.Rptr.2d 854] (County of Riverside)),
petition for review granted, July 17, 2002.) In the face of the legal uncertainty surrounding the
statute, Mr. Lakich considered as premature any effort to modify the units because of
potentially differing impasse procedures.
The Union argues that County of Riverside is stayed while on appeal and has no legal
effect. 	Therefore, the Union argues, until and unless the interest arbitration provision set out in
Code of Civil Procedure sections 1299-1299.9 is invalidated by the Supreme Court, the County
is not at liberty to ignore its own Ordinance or wait for some indeterminate time for a final
judicial decision. The Union rejects any suggestion that the impasse procedure cannot be
imposed until the County's agreement with IUOE expires, arguing that mid-contract
bargaining over proposed County changes in working conditions could easily lead to a
necessary resort to employment of impasse resolution procedures.
I do not share the Union's view. Given the legal uncertainty about the enforceability of
Code of Civil Procedure sections 1299-1299.9, I do not believe it can accurately be said that at
this time County employees in the Operations and Maintenance Unit are subject to two
different impasse resolution procedures. Whether employees in the Operations and
Maintenance Unit are subject to different impasse procedures will not be known until the
California Supreme Court issues its decision in the County of Riverside case. Because of the
legal uncertainty, I do not find that the County violated section 2.79.080 of the County
Ordinance by failing to seek a unit modification to remove firefighters from the Operations and
Maintenance Unit.
Accordingly, I will dismiss the allegation that the County refused to seek or allow
modification of the Operations and Maintenance Unit to remove firefighter classifications
because they are subject to a different impasse procedure from other unit employees.
18

REMEDY
Pursuant to section 3509(a), the PERB under section 3541.3(i) is given the power:
To investigate unfair practice charges or alleged violations
of
this
chapter, and take 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.
This includes the authority under section 3509(b) to process as an unfair practice charge any
complaint alleging a violation
of
"any rules and regulations adopted by a public agency
pursuant to Section 3507."
Here, the County gave status as a contract bar to an MOU longer than three years.
The County thereby violated its own local Ordinance, adopted by the County pursuant to
section 3507
of
the MMBA. By this action the County also violated MMBA section 3509 and
PERB Regulation 32603(g) and interfered with employee rights protected under section 3502.
The ordinary remedy in an interference case is an order directing the offending party to cease
and desist from its interference in protected rights. Such a remedy will be granted here.
It is further appropriate that the County be directed to post a notice incorporating the
terms
of
the order. Posting
of
such a notice, signed by an authorized agent
of
the County, will
provide employees with notice that the County has acted in an unlawful manner, is being
required to cease and desist from this activity, and will comply with the order. It effectuates
the purposes
of
the MMBA that employees be informed
of
the resolution
of
this controversy
and the County's readiness to comply with the ordered remedy. 	(Placerville Union School
District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in the
case, it is found that the County of Sacramento (County) violated Government Code section
19

3509 and 3502, provisions of the Meyers-Milias-Brown Act (MMBA) and Public Employment
Relations Board (PERB or Board) Regulation 32603(g). (Cal. Code Regs., tit. 8, sec. 31001 et
seq.) The County violated the MMBA by giving status as a contract bar to a Memorandum of
Understanding (MOU) longer than three years. Because the County's action violated section
2. 79 .105 of the local Employee Relations Ordinance, adopted by the County pursuant to
section 3507 of the MMBA, the County violated MMBA section 3509 and PERB Regulation
32603(g) and interfered with employee rights protected under section 3502.
Pursuant to sections 3509(a) and 3541.3(i) of the Government Code, it hereby is
ORDERED that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to accept and process in accord with County rules the petition
for modification of the County's Operations and Maintenance Unit filed by the Sacramento
County Aircraft Rescue and Firefighters Association (Union) on December 4, 2001.
2. 	Interfering with employee rights by refusing to accept and process in
accord with County rules the Union's petition for modification of the County's Operations and
Maintenance Unit.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within twenty (20) workdays of the service of a final decision in this
matter, accept and process in accord with County rules the petition for modification of the
County's Operations and Maintenance Unit filed by the Sacramento County Aircraft Rescue
and Firefighters Association (Union) on December 4, 2001.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to certificated employees customarily are posted,
20

copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the County, indicating that the County 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 the Notice is not reduced in size, altered, defaced
or covered with any other material.
3. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the Sacramento Regional Director of the PERB in
accord with the director's instructions.
All other allegations in the complaint and the companion unfair practice charge are
hereby DISMISSED.
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
Board itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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., 	8, sec. 32300.)
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.
Code Regs., tit. 8, secs. 32135(a) and 32130.)
21

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
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, sec. 32135(b ),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting
brief
must be served concurrently
with
its
filing upon each party to this proceeding.
Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
~~~~
Ronald E. Blubaugh
Administrative Law Judge
22