County of Inyo * * * OVERRULED IN PART by County of Tulare (2020) PERB Decision No. 2697-M (PERB 1783M)

OVERRULED IN PART by County of Tulare (2020) PERB Decision No. 2697-M
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF INYO,
Charging Party,
v.
UNITED DOMESTIC WORKERS OF AMERICA,
Respondent.
Case No. SA-CO-22-M
PERB Decision No. 1783-M
November 7, 2005
Appearance: Kuykendall & Simas by Steven L. Simas, Attorney, for County of Inyo.
Before Duncan, Chairman; Shek and Neuwald, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the County of Inyo (County) to a Board agent's dismissal of its
unfair practice charge. 	The unfair practice charge alleges that the United Domestic Workers of
America (UDW) violated the Meyers-Milias-Brown Act (MMBA)1 by failing to negotiate in
good faith.
The Board has reviewed the complete record including, but not limited to, the unfair
practice charge, the first amended charge, the warning and dismissal letters, and the County's
appeal. UDW did not file a response to the appeal. The Board finds the Board agent's
warning and dismissal letters to be in conflict with the Board's holding in Golden Plains
Unified School District (2002) PERB Decision No. 1489 (Golden Plains). Under Golden
Plains, any disputed facts or competing theories of law should be left for the Board hearing
process to address.
The MMBA is codified at Government Code section 3500, et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

In the warning letter, the Board agent stated that the County is obligated to provide a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice"
as required under PERB Regulation 32615(a)(5)2 and he further states that the County's burden
does include setting forth the "who, what, when, where and how" of an unfair practice. 	(State
of California (Department of Food and Agriculture) (1994) PERB Decision No. 1071-S, citing
United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.)
The County has met the burden in this case. While it is necessary to present the "who,
what, when, where and how" in the charge, it is not necessary to include all the party's
evidence or theories of law in the charge or amended charge. 	The charge itself, attachments,
and the declaration of Mike Noda (Noda) provide clearly and concisely the information
necessary. 	The letter from UDW to County Supervisor, Michael A. Dorame, dated February 6,
2004, confirms the allegations that UDW is trying to circumvent Community Services
Solutions, Inc., the negotiators for the County. Here we know the UDW negotiator (who), has
tried to circumvent the actual negotiator in this case contrary to the negotiation ground rules
(what), on several specific occasions which are indicated in the pleadings (when), and that this
was done by trying to communicate with the members of the County Board of Supervisors and
the In Home Supportive Services Advisory Board (how).
The County has set forth allegations related to the UDW refusal to follow the ground
rules. 	The declaration of Noda (attachment to first amended charge) also details specific
instances in which the UDW representatives violated the ground rules, refused to meet and
confer in good faith, attempted to circumvent the employer representative, and refused to
discuss or agree to new or additional ground rules. Numerous instances over several months
are documented.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
N	2

We agree with the Board agent that while a party may not merely go through the
motions of negotiations, it may lawfully maintain an adamant position on any issue. 	Adamant
insistence on a bargaining position is not necessarily a refusal to bargain in good faith.
(Placentia Fire Fighters v. City of Placentia (1976) 57 Cal.App.3d 9 [129 Cal.Rptr. 126].)
However, in this particular case, the County has presented allegations of far more.
Acknowledging that there must be more than one indicator of bad faith under the
totality of circumstances test that applies here (Oakland Unified School District (1982) PERB
Decision No. 275), we believe the County has met its burden to establish a prima facie case.
In addition to alleging a refusal to bargain in good faith by refusing to discuss other
options to the specific wage increase proposal of UDW, the County has alleged specific dates
when UDW refused to follow ground rules already established, refused to discuss new ground
rules or additional ground rules, and made efforts to circumvent the negotiating team for the
County by attempting to go directly to the Board of Supervisors and at least one other entity
that was not involved in the negotiations in violation of the MMBA. (Sec. 3505(c) and PERB
Reg. 32604(a), (c) and (e).) It is up to the trier of fact to determine if the totality of
circumstances constitutes bad faith by UDW, but the County has set forth a prima facie case.
UDW has not responded so the only evidence presented in relation to the allegations is
that provided by the County.
The County has presented a well articulated case that includes the necessary elements
and sets forth facts that must be taken at face value under precedential PERB case law.
W
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ORDER
The unfair practice charge in Case No. SA-CO-22-M is REMANDED to the Office of
the General Counsel for a complaint to issue.
Member Neuwald joined in this Decision.
Member Shek's dissent begins on page 5.
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SHEK, Member, dissenting: 	I respectfully dissent. The Public Employment Relations
Board (PERB or Board) should affirm the Board agent's dismissal of the unfair practice charge
filed by the Community Service Solutions, Inc. (CSS) of the County of Inyo (County) against
the United Domestic Workers of America (UDW). I have reviewed the entire record,
including the original and amended unfair practice charge and attached documents, the
warning and dismissal letters, and the County's appeal. I find the Board agent's warning and
dismissal letters to be free of prejudicial error and supported by the facts and applicable law,
and would adopt them as the decision of the Board itself.
BACKGROUND
The Board agent's factual findings are summarized as follows: CSS is the employer of
record for the In-Home Supportive Services providers in the County. According to its
agreement with the County, CSS is responsible for negotiations and all labor relations activity
with the UDW.
In May 2003, CSS and the UDW began negotiations. They agreed on a set of ground
rules, recognizing CSS as the employer representative in negotiations and limiting negotiations
to the "negotiations teams". An addendum to the ground rules, to be effective 60 days from
August 26, 2003, provided that there would be no contact with "those represented by the other
side" regarding the "specific content of ongoing negotiations" and that the UDW bargaining
team or their representatives agrees not to go to the Board(s).
At a negotiation session on May 30, 2003, UDW representatives stated that they would
not accept any wages and benefit package that was below $8.50, and that position would
remain firm.
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At some point, CSS made a "best and final offer." On October 23, 2004, the UDW
addressed a letter critical of that offer to CSS and members of the County Board of Supervisors
(County Board).
On February 6, 2004, UDW Representative Thomas Meshak wrote to the County Board
and expressed displeasure with CSS, its "paid consultant and designated negotiator," and asked
that the Board "intercede."
DISCUSSION
It is the essence of surface bargaining that a party goes through the motions of
negotiations, but in fact is weaving otherwise unobjectionable conduct into an entangling
fabric to delay or prevent agreement. 	(Muroc Unified School District (1978) PERB Decision
No. 80 (Muroc).) Where there is an accusation of surface bargaining, PERB will resolve the
question of good faith by analyzing the totality of the accused party's conduct. 	The Board
weighs the facts to determine whether the conduct at issue "indicates an intent to subvert the
negotiating process or is merely a legitimate position adamantly maintained." 	(Oakland
Unified School District (1982) PERB Decision No. 275 (Oakland I).)
The indicia of surface bargaining are many. 	Entering negotiations with a "take-it-or-
leave-it" attitude evidences a failure of the duty to bargain because it amounts to merely going
through the motions of negotiations. (General Electric Company (1964) 150 NLRB 192, 194
[57 LRRM 1491], enf. 418 F.2d 736 [72 LRRM 2530].) Recalcitrance in the scheduling of
meetings is evidence of manipulation to delay and obstruct a timely agreement. 	(Oakland
Unified School District (1983) PERB Decision No. 326 (Oakland II.) Dilatory and evasive
tactics including canceling meetings or failing to prepare for meetings is evidence of bad faith.
(Oakland II.) 	Conditioning agreement on economic matters upon prior agreement on non-
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economic subjects is evidence of an unwillingness to engage in a give-and-take. 	(State of
California (Department of Personnel Administration) (1998) PERB Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include:
negotiator's lack of authority which delays and thwarts the bargaining process (Stockton
Unified School District (1980) PERB Decision No. 143 (Stockton)); insistence on ground rules
before negotiating substantive issues (San Ysidro School District (1980) PERB Decision
No. 134); and reneging on tentative agreements the parties already have made (Charter Oak
Unified School District (1991) PERB Decision No. 873; Stockton; Placerville Union School
District (1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may
lawfully maintain an adamant position on any issue. Adamant insistence on a bargaining
position is not necessarily refusal to bargain in good faith. (Oakland I.) 	"The obligation of the
employer to bargain in good faith does not require the yielding of positions fairly maintained."
(NLRB v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229 [45 LRRM 2829, 2830].) I
therefore concur with the Board agent's finding that the County had not demonstrated that
UDW's adamant and unyielding position on the issue of a wage increase to at least $8.50,
standing alone, established a prima facie case of refusal to bargain in good faith.
An employer may not communicate directly with employees to undermine or derogate
the representative's exclusive authority to represent unit members. (Muroc.) Similarly, the
employer violates the duty to bargain in good faith when it bypasses the exclusive
representative to negotiate directly with employees over matters within the scope of
representation. 	(Walnut Valley Unified School District (1981) PERB Decision No. 160.)
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Similarly, a union cannot bypass the employer's negotiators. 	(San Ramon Valley Unified
School District (1982) PERB Decision No. 230 (San Ramon).)
The Board considered the issue of what limitations may be imposed on the content of
an exclusive representative's address to a District in public meetings in San Ramon, and stated,
at pp. 16-17:
Bypassing the authorized negotiators, for example, by going
straight to the school board of trustees with proposals or
concessions, would subvert the statutory scheme and arguably
violate the good-faith obligations of collective bargaining just as
the employer's effort to bypass the union's negotiators by seeking
direct access to the membership has been condemned.
(Citations omitted.)
In Westminster School District (1982) PERB Decision No. 277, the Board stated, at
pp. 8-9:
After reviewing the decision of the Supreme Court in City of
Madison v. Wisconsin Employment Relations Commission
(1976) 429 U.S. 167 [93 LRRM 2970] and the decision of the
Court of Appeal in Henrico Firefighters Assn. v. Supervisors (4 th
Cir. 1981) 649 F.2d 237 [107 LRRM 2432], [fn. omitted] both
decided on First Amendment grounds, the Board, in San Ramon,
supra, concluded that negotiations, but not mere advocacy, may
- -be prohibited at a public meeting.
I therefore concur with the Board agent's findings that the County had not
demonstrated that UDW had refused to deal with the employer's chosen representative. 	As
stated at pp. 3-4 of the dismissal letter, dated December 17, 2004:
The Union has not presented new proposals or concessions
directly to the County's Board or sought to engage in the give and
take of direct negotiations with that entity. 	[The facts show that
UDW attempted] to engage in advocacy support for proposals
already made to the employer's chosen negotiators. The Union's
letter of October 23, 2003, merely explains and defends its offer,
made at the bargaining table, and criticizes the proposal of the
employer; it also requests that the County Board schedule a
'public report and review' of negotiations. Similarly, the letter of
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February 6, 2004, merely criticizes the manner in which CSS is
conducting negotiations and asks that the Board 'intercede on
behalf of your constituents and insist on an expeditious
completion of this contract.' 	Such letters are well within a
union's right to public advocacy and do not constitute illegal
'bypassing.' 	Westminster School District (1982) PERB Decision
No. 277. [Emphasis added.]
Based on the discussion above, I would therefore dismiss the unfair practice charge
without leave to amend.
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