County of Riverside (PERB 1825M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SEIU, LOCAL 1997,
Charging Party,
v.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-40-M
PERB Decision No. 	1825-M
March 	1, 	2006
Appearance: 	Tom Prescott, Senior Employee Relations Representative, for County of
Riverside.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
WHITEHEAD, Member: This case comes before the Public Employment Relations
(PERB or Board) on appeal by the County of Riverside (County) to an administrative law
judge's (ALJ) proposed decision. The unfair practice charge alleged that the County violated
the Meyers-Milias-Brown Act (MMBA)1 by unilaterally changing a policy concerning the
processing of pending grievances that were also the subject of unfair practice charges at PERB,
without providing SEIU, Local 1997 (SEIU) with notice and an opportunity to bargain.
We have reviewed the entire record including, but not limited to, the unfair practice
charge, the transcript of the formal hearing, the post-hearing briefs, the proposed decision, and
the County's exceptions. 	We find that the ALJ's proposed decision cannot be adopted as
written. 	We therefore adopt the following as the decision of the Board itself.
MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

BACKGROUND
At all times relevant to this dispute, Margaret Turk (Turk) was a Senior Appraiser in
the Riverside County Assessor's Office. 	Turk sought to promote to the position of Supervising
Appraiser.
The County operates under a merit system for personnel actions. 	The County's current
system for promotional opportunities does not involve the more typical procedure of a posting
followed by solicitation of applications. 	Rather, employees interested in promoting must have
on file a resume in the County's central resume bank, called Resumix. When an opening
occurs, the hiring department submits a requisition to the human resources office, which in
turn prepares a list of eligible candidates for the hiring department.
On December 13, 2001, the human resources department issued a list of eligibles to the
Assessor's Office for the position of Supervising Appraiser. 	The list contained 29 names,
including Turk's, but the County never offered Turk an interview.
On January 18, 2002, Turk filed a grievance alleging the County failed to interview her
for the Supervising Appraiser position in violation of Article VI, Section 5 of the parties'
Memorandum of Understanding (MOU). Section 5 provides, in relevant part:
Merit Systems/Veterans Preference. 	The Human Resources
Administration under the Memorandum is designated a merit
system. Appointments, promotions, demotions, transfers and
dismissals shall be made on the basis of merit and ability. Each
officer shall appoint all necessary employees allowed for their
department by this Memorandum only from among persons
certified to them by the Human Resources Director as eligible for
the respective positions. The Human Resources Director shall
determine the methods of evaluating the qualifications of
applicants. The methods shall be practical in nature and may
involve any combination of written test, oral test, performance
test, rating of education, training and experience and shall take
into consideration a system of veterans preference as may be
adopted by the Board of Supervisors, by resolution.
22

Article XIII, Grievance Procedure, Section 2, defines a grievance as follows:
A 'grievance' is the subject of a written request or complaint,
which has not been settled as a result of the discussion required
by Section 1, initiated by an employee or the Union on behalf of a
specifically named employee or group of employees arising out
of a dispute by an employee or group of employees concerning
the application or interpretation of the specific terms and
conditions set forth in this Memorandum of Understanding . . . .
Section 2 goes on to exclude "all other matters" from the grievance procedure and sets forth
four specific examples.2 There appears to be no argument by the County that this particular
exclusionary language applies to the issue of promotional decisions made on the basis of merit
and ability.
In addition, boilerplate language following the Human Resources Department eligibles
list entered into evidence by the County states, in relevant part:
Departments are mandated by County policy to interview all
candidates on the certification list. Interview results indicating
the interview status of each candidate must be returned to the
above named recruiter . . . .
However, on January 23, 2002, the County rejected the grievance "because the issue is not a
grievable matter."
As a result, on February 13, 2002, SEIU filed an unfair practice charge alleging that the
County refused to process a grievance related to a promotional examination thereby
repudiating its obligation under the terms of the parties' negotiated grievance procedure.
During a re-opener of the MOU in 2002, the parties agreed to new contractual language
to address the issue of grievability. The agreed upon language was adopted in early June 2002
For example, these include matters reviewable under some other County administrative
procedure, that require legislative action as a remedy, disciplinary actions reviewable under the
merit system, or not reviewable because they involve termination of a probationary employee,
and matters relating to evaluations where the overall rating is satisfactory or better.
3

and added a new section 13 entitled Grievance Resolution to Article XIII - Grievance
Procedure to the MOU. The new language reads:
SEIU and the County will meet on issues of grievability of the
SEIU grievances that are currently the subject of Unfair Labor
Practice charges. If the parties agree that any particular grievance
is grievable, it will be entered into the grievance process. In the
event there is no agreement on a particular grievance, SEIU may
continue to pursue resolution of that grievance through PERB.
With respect to whether issues are grievable, the County and
SEIU agree to utilize representatives from the State Mediation
and Conciliation Service to settle questions of grievability and
comply with their decisions on grievability. Both parties will
abide by the Mediator's decision.
For prospective grievances, the County agrees to cite specific
reasons, including any applicable Articles or Sections of the
MOU, or specific provisions or other procedures, that constitute
the County's rationale for rejection of the grievance. The Union,
by this agreement, does not waive any of its rights to file
grievances, unfair practice charges or other means to enforce the
MOU in the future. The parties agree to meet in an attempt to
resolve any future denials upon the request of the Union.
The first meetings contemplated by this new language were held approximately six to
eight months later or December 2002 to February 2003. 	SEIU presented approximately seven
to ten pending grievances, not including the Turk grievance, with grievability issues to the
County and proposed sending them through the grievance procedure or to State Mediation and
Conciliation Service as indicated in the newly negotiated language. The County rejected the
proposals. 	SEIU then concluded that meeting on the Turk grievance would not be fruitful.
On September 26, 2003, following the investigation of the charge, the General Counsel
of PERB issued a complaint. 	The complaint alleges that the County unilaterally changed a
policy concerning pending SEIU grievances that were the subject of unfair practice charges as
described in Article XIII, Section 13 of the parties' collective bargaining agreement by
A	4

refusing to utilize the State Mediation and Conciliation Service to determine the grieveability
of the grievance of Turk.
An informal conference was held on November 7, 2003, but the matter was not
resolved. The formal hearing was conducted by ALJ Donn Ginoza on February 10, 2004.
In their closing brief, the County argues that the newly negotiated Article XIII, Section
13 language does not apply retroactively and the Turk grievance was filed before the adoption
of the newly negotiated language. Therefore, Article XIII, section 13 does not apply to the
Turk grievance. Furthermore, the County indicates that SEIU never requested the Turk
grievance be 	referred to the State Mediation and Conciliation Service for resolution of the
grievability issue. Therefore, the County cannot have denied moving the Turk grievance to
State Mediation and Conciliation Service for resolution of the grievability issue.
SEIU argues that the subject of Turk's grievance is a mandatory subject of bargaining.
In support, SEIU cites a recent PERB decision, County of Riverside (2004) PERB Decision
No. 1577-M (Riverside), wherein the Board found that the County was contractually bound to
process grievances in reference to promotion. 	SEIU asserts that the County's refusal to
process the Turk grievance is a repudiation of the grievance procedure and a refusal on the
County's part to negotiate in good faith.
ALJ'S DECISION
The ALJ determined that the newly negotiated language was not retrospective and
therefore the County was not obligated to refer the Turk grievance to State Mediation and
Conciliation Service. As a consequence, a request by SEIU to proceed with the Turk
grievance/unfair practice charge under the newly negotiated language would have been futile.
The ALJ then reframes the issue, as SEIU originally alleged in the unfair practice
charge but not the issue found in the complaint: whether the County repudiated its policy of
55

processing grievances under the policy that existed prior to the June 2002 amendment. The
ALJ rejects the County's claim that SEIU can prevail only by proving the allegations of the
PERB complaint. And although SEIU did not move to amend the complaint during the
hearing, PERB is permitted to entertain Unalleged violations. Finding the Unalleged violation
requirements meet, the ALJ determined the County refused to process the Turk grievance as
required by PERB precedent in Riverside.
COUNTY'S EXCEPTIONS
The County excepts to the proposed decision based upon five issues, articulated as follows:
1. The ALJ erred in framing the issue of the case. The ALJ ignored the specific
allegations raised in the complaint. 	The reframed issue was previously litigated in
Riverside.3
2. 	The ALJ erred in entertaining Unalleged violations. The four requirements are not met.
Most importantly, the County did not have adequate notice and opportunity to defend
against the Unalleged violations.
3. 	The ALJ erred in not dismissing the complaint. 	SEIU failed to prove a prima facie case
of unilateral change.
4. 	The ALJ erred by not deciding the issue outlined in the complaint. There has been no
determination as to whether the County committed a unilateral change as described in
the complaint.
5. 	The ALJ erred in ordering a remedy that was moot. Under Riverside, the County is
already obligated to process the Turk grievance.4
The proposed decision asks whether the County refused to process the failure to
interview grievance of Turk. 	In Riverside, the Board found the County refused to process the
failure to promote grievance of Carmela B. MacArther in violation of the MMBA. In our
view, the cases are distinct. Therefore, we disagree that the proposed decision reframed an
issue previously litigated in Riverside.
4See footnote 3. The Riverside decision is instructive, but not determinative as to the
outcome of this case. Furthermore, if the County's assertion is correct and Riverside is
binding, then the County should have begun processing the Turk grievance when the Riverside
decision was issued on December 31, 2003. For reference, the County's exceptions were filed
with the Board on June 1, 2004.
66

DISCUSSION
On February 13, 2002, SEIU filed the instant unfair practice charge alleging that the
County refused to process a grievance related to a promotional examination thereby
repudiating its obligation under the terms of the parties' negotiated grievance procedure. But
on September 26, 2003, following an investigation, PERB issued a complaint alleging the
County unilaterally changed a policy concerning pending SEIU grievances that were the
subject of unfair practice charges as described in Article XIII, Section 13 of the parties'
collective bargaining agreement by refusing to utilize the State Mediation and Conciliation
Service to determine the grieveability of the grievance of Turk. 	The two allegations are clearly
different. 	We can only assume then that the Board agent knew about the newly negotiated
language between the parties, adopted in June 2002, and believed the current unfair practice to
be as stated in the complaint.
Therefore, we agree with the County's first exception: the ALJ erred in framing the
issue of the case. Based upon the complaint, the issue before us is a narrow one. Does the
newly negotiated language adopted in June 2002 apply retroactively to pending grievances and
unfair practice charges, more specifically, the Turk grievance? And if so, did the County
unilaterally refuse to adhere to the newly adopted language, as applied to the Turk grievance?
We find paragraphs one and two of the newly negotiated language to be retroactive. In
June 2002, the parties met to negotiate, and hopefully provide clarity on issues of grievability.
The newly negotiated language is replete with references that indicate the language is to be
applied retroactively, or in other words, to previously filed grievances now pending.5
5 Article XIII, Section 13, paragraph 1 reads:
SEIU and the County will meet on issues of grievability of the
SEIU grievances that are currently the subject of Unfair Labor
7

Furthermore, paragraph three of the newly negotiated language specifically identifies
procedures for prospective grievances, making an easy comparison to the above paragraphs as
being applicable to grievances of a different kind.6 In addition, the parties met in December
2002 to February 2003 about pending grievances, as directed by the newly negotiated language
thereby manifesting the intent that the language be construed as retroactive. Clearly, the
parties understood the language to be retroactive. To argue otherwise now is merely an
attempt to escape the consequences of the pending unfair.
That said, we turn to the County's third and fourth exceptions: the ALJ erred in not
dismissing the complaint because SEIU failed to prove a prima facie case of unilateral change,
and the ALJ erred by not deciding the unilateral change issue outlined in the complaint. We do
that now and ask whether the County unilaterally changed the policy bargained for in June
2002. In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),7 PERB utilizes either the "per se" or "totality of the conduct" test,
Practice charges. If the parties agree that any particular grievance
is grievable, it will be entered into the grievance process. In the
event there is no agreement on a particular grievance, SEIU may
continue to pursue resolution of that grievance through PERB.
(Emphasis added.)
6Article XIII, Section 13, paragraph 3 reads:
For prospective grievances, the County agrees to cite specific
reasons, including any applicable Articles or Sections of the
MOU, or specific provisions or other procedures, that constitute
the County's rationale for rejection of the grievance. 	The Union,
by this agreement, does not waive any of its rights to file
grievances, unfair practice charges or other means to enforce the
MOU in the future. The parties agree to meet in an attempt to
resolve any future denials upon the request of the Union.
(Emphasis added.)
7PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
8

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.)8 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
Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
- On or about June 2002, the parties negotiated a policy to resolve issues of grievability.
In December 2002 to February 2003, SEIU presented approximately seven to ten pending
grievances, not including the Turk grievance, with grievability issues to the County and
proposed sending them through the grievance procedure or to State Mediation and Conciliation
Service as indicated in the newly negotiated language. The County rejected the proposals.
SEIU then concluded that meeting on the Turk grievance would not be fruitful. 	We agree.
Given the ongoing struggle between the parties to find agreement on issues of
grievability, attempting to send seven to ten grievances through the newly negotiated process
to resolve grievability issues and being denied makes another request on a similar grievance
futile. 	Based on the facts, the County unilaterally repudiated its newly negotiated language
when it refused to refer any pending grievances to State Mediation and Conciliation Services
for determination of the grievability of the subject matter of the grievance.
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.)
9

Finally, we agree with the County's second exception: the ALJ erred in entertaining
Unalleged violations. We find no compelling reason to entertain Unalleged violations in this
case. 	Should it become necessary to entertain Unalleged violations, the rationale must be
clearly articulated in the decision. In this case, the ALJ simply identifies the four requirements
necessary to discuss Unalleged violations and then asserts that the requirements are met. We
find this to be woefully insufficient. Each one of the requirements must be fully discussed to
provide a clear rationale for discussing issues not found in the complaint. 	If SEIU found the
complaint to be insufficient, they should have moved to amend it prior to hearing. Unless the
Unalleged violations requirements are met, the parties are bound by the language of the
complaint.
ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record in
this matter, it is found that the County of Riverside (County) violated the Meyers-Milias-Brown
Act (MMBA), Government Code section 3505 and California Code of Regulations, title 8,
section 32603(a), (b), and (c), by unilaterally changing a negotiated policy, Article XIII,
Section 13, of the parties Memorandum of Understanding, addressing the process to resolve
disagreements over the grievability of issues without providing Service Employees International
Union, Local 1997 (SEIU) with prior notice and opportunity to bargain.
Pursuant to Government Code sections 3509(a) and 3541.5(c), it is hereby ORDERED
that the County, its governing board and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with SEIU regarding a change in
policy affecting matters within the scope of representation;
10

2. 	Unilaterally changing Article XIII, Section 13, dealing with the process
to resolve disagreements over the grievability of issues without giving SEIU prior notice and
opportunity to bargain;
3. 	Failing and refusing to process grievances regarding interviews, including
the grievance filed by SEIU on behalf Margaret Turk on January 18, 2002, pursuant to the
parties' agreed-upon grievance procedures.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays, following the date this decision is no longer
subject to appeal, process the grievance filed by SEIU on behalf of Margaret Turk filed on
January 18, 2002, and process all other grievances filed by SEIU regarding interviews, pursuant
to the parties' agreed-upon grievance procedures including, but not limited to, Article XIII,
Section 13, of the parties' Memorandum of Understanding;
2. Post copies of the Notice to Employees attached hereto as an Appendix,
signed by an authorized agent of the County, at all work locations where notices to employees
are customarily posted. 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. Written notification of the actions taken to comply with this Order shall be
made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The County shall provide reports, in writing, as directed by the General
11

Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on SEIU.
Chairman Duncan joined in this Decision.
Member Shek's concurrence begins on page 13.
12

SHEK, Member, concurring: I respectfully concur with the conclusion of the Public
Employment Relations Board's (PERB or Board) majority opinion that the County of
Riverside (County) unilaterally changed the policy under Article XIII, section 13 of the
parties' Memorandum of Understanding (MOU), by rejecting SEIU, Local 1997's (SEIU)
proposal to submit pending grievances which were "currently the subject of Unfair Labor
Practice charges," to the State Medication and Conciliation Services for settlement of the
question of grievability, but based on a different rationale.
I also concur with and therefore adopt those portions of the administrative law judge's
(ALJ) proposed decision finding that the County unilaterally repudiated its policy regarding
the processing of grievances pertaining to promotions, pursuant to Article VI, Section 5,
"Merit Systems/Veteran Preference," and Article XIII, "Grievance Procedures," Section 2 of
the MOU, subject to the comments stated below.
FINDINGS OF FACTS
I agree with, and supplement the majority's Background discussion with the following
extract from the Findings of Facts of the proposed decision:
County Employee Relations Representative Jim Caves testified
that the County has for many years maintained the prerogative of
rejecting grievances as not raising any grievable matter. With
regard to grievances involving personnel transactions, the County
has consistently rejected grievances on this ground, where a
grievant is challenging a decision declining to select him or her
for an open position. Caves claimed that so long as the employee
selected had been on the list of eligibles there would be no
grounds for a grievance by a non-selected employee.
The parties agreed that they have had a longstanding dispute
about the County's 'practice' of rejecting grievances in this
manner and on these grounds.
Caves further testified that the County maintains no requirement
that all employees on the eligibles list be interviewed. The
13

eligibles list is not a ranked list, and there are therefore no rules
pertaining to use of rank in selecting candidates from the list.
However, Caves was contradicted by boilerplate language in the
eligibles list entered into evidence by the County, which states,
following the listing of candidates:
'Departments are mandated by County policy to interview all
candidates on the certification list. Interview results indicating
the interview status of each candidate must be returned to the
above named recruiter normally within 10 business days from the
date of certification. 	Should the department decide to withdraw
from the hiring for the specific position stated on this certified
list, all documentation will be returned to the recruiter.
Additional requests for certified candidates for this position will
not be processed until all documentation is completed and
returned to the Human Resources Department.
An employment offer may be made from a previous list without
[re-interviewing], providing the following guidelines are
followed: (1) The offer is made within 3 months of the list date,
(2) The position offered is for the same classification, interviewer
and location, (3) The candidate previously interviewed is still
available. Failure to follow these guidelines may result in a delay
in process of the new employee.' (Emphasis in original.)
The eligibles list has two columns to the right of the candidates'
names with the heading 'Interview Results.' 	The first column is
titled 'Action' and the second is 'Status.' 	At the bottom of each
page of the listing is a legend bearing abbreviations for actions or
status. For example, the following pertinent initials are set forth
for 'Interview Action Codes': 'I' ('Interviewed') and 'NI' ('Not
Interviewed'). Under 'Interview Status Codes' the following
appear: 	'A' ('Selected/Offered') and 'NS' ('Not Selected').
Other codes listed, which are found entered in the 'Action'
column, include: ' D W ('Declined Interview (Waived)'), 'DA'
('Did Not Appear for Scheduled Interview'), 'FR' ('Failed to
Reply'), and 'PI' ('Previously Interviewed for Same Position').
The supervising appraiser list had handwritten entries for each of
the 29 candidates in the 'Action' column. 	For roughly half of the
candidates, an entry appeared in the 'Status' column as well.[1]
The list for the supervising appraiser's position was entered into evidence. 	It contains
a notation that Turk was interviewed. 	Caves had no independent knowledge whether that
notation was accurate. 	On the basis of the grievance itself, Turk contends otherwise.
14

In the negotiations that led to the 2000-2004 MOU, SEIU raised
concerns about the County's practice of rejecting grievances. No
resolution was reached on this issue.
I respectfully disagree with the majority's conclusion that the two allegations in the
unfair practice charge and the complaint are "clearly different." I do not find that based on the
complaint, the issues before us are limited to whether the newly negotiated contractual
language of Article XIII, Section 13 were retroactive to pending grievances and unfair practice
charges, including the Margaret Turk (Turk) grievance, and whether the County unilaterally
refused to comply with the agreement.
The basic subject matter raised in this unfair practice proceeding is the County's refusal
to process the grievance related to the promotion of Turk by rejecting it as a non-grievable
issue. 	Despite repeated objections of SEIU, the County continuously refused to abide by its
contractual obligation pursuant to Article VI, Section 5, "Merit Systems/Veteran Preference,"
and Article XIII, "Grievance Procedures," Section 2 of the parties' MOU.
SEIU filed the grievance in January 2002, and the unfair practice charge in February
2002. In its charge, SEIU sought a remedy from PERB compelling the County to process the
grievance through the grievance process based on its merits, up to and including advisory
arbitration, if necessary. 	Four months after the filing of the charge, the parties entered into an
agreement to add Article XIII, Section 13, to their MOU, with the new contractual language
concerning submitting disputed issues of grievability to the State Mediation and Conciliation
Service.
A complaint was subsequently issued. 	It is evident from the language of the complaint
that the Board agent intended to incorporate by reference the issues raised in the grievance and
the initial charge. The complaint alleged, in part:
15

4. 	On or about June 25, 2002, Respondent changed this
policy by refusing to utilize the State Mediation and Conciliation
Service to determine the grievability of the grievance of Margaret
Turk. 	That grievance is the subject of this unfair practice charge.
(Emphasis added.)
The above-quoted paragraph of the complaint addresses a bi-furcated issue, more
specifically: (1) the determination of the grievability of Turk's grievance that is "currently the
subject of a unfair labor practice charge by utilizing the State Mediation and Conciliation
Service; and (2) the processing of Turk's grievance that is the subject matter of the underlying
unfair practice charge. 	The allegations raised in the complaint are inclusive of the issues raised
in the charge. The two allegations are therefore not different.
I find compelling reason to entertain the Unalleged violations in this case. The record
supports the ALJ's finding that the issue of whether the County repudiated its policy of
processing grievances under the policy that existed prior to the June 2002 amendment can be
addressed as an Unalleged violation. As stated in Hacienda La Puente Unified School District
(1997) PERB Decision No. 1187, at p. 3:
In Santa Clara Unified School District (1979) PERB Decision
No. 104 (Santa Clara USD), the Board stated that an Unalleged
violation can be considered only if it is intimately related to the
subject matter of the complaint, is part of the same course of
conduct, has been fully litigated, and the parties have had the
opportunity to examine and be cross-examined on the issue. The
failure to meet any of these conditions prevents the Board from
considering an Unalleged violation. 	(Tahoe-Truckee Unified
School District (1988) PERB Decision No. 668.)
In the present case, both the grievability of the grievance and the grievance itself are
included as the subject matter of the complaint, and are therefore intimately related. 	Both
allegations are based on the same course of action involving the County's rejection of Turk's
grievance. Both issues have been fully litigated during the hearing. 	An examination of the
16

hearing transcripts show that witnesses for SEIU and the County were both given the
opportunities to offer direct testimony and be cross examined on the grievance procedures that
existed at the time of the filing of Turk's grievance on January 18, 2002, and the processing of
the grievance. 	In resolving the issue of Unalleged violations, I find the following ALJ's
statement in the proposed decision to be most instructive: 	"I amend the complaint to conform
to proof."2
I therefore adopt those portions of the Conclusions of Law in the proposed decision
concerning the processing of the Turk grievance pursuant to the Merit and Grievance
Procedures of the MOU that existed at the time of the filing of the initial grievance and charge,
as follows:
An employer's implementation of a unilateral change in subjects
within the scope of representation constitutes a 'per se' violation
of the duty to bargain in good faith, under well-settled case law
precedent prior to PERB's assumption of jurisdiction over
MMBA, as well as under PERB precedent thereafter. (Fire
Fighters v. City of Vernon (1980) 107 Cal.App.3d 802 [165
Cal.Rptr. 908]; San Joaquin Co. Employees Assn. v. City of
Stockton (1984) 161 Cal.App.3d 813 [207 Cal.Rptr. 876]; Grant
Joint Union High School District (1982) PERB Decision No.
196.) A prima facie violation for a unilateral change is
demonstrated where (1) the employer implements 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. 	(Grant Joint Union High School District, supra,
PERB Decision No. 196.)
An employer's refusal to process grievances has been held to
constitute a violation of the duty to bargain, applying the analysis
of unilateral changes. 	(Anaheim City School District (1983)
PERB Decision No. 364, see also Los Angeles Unified School
District (1984) PERB Decision No. 440; Independent Stave Co.
Proposed decision, p. 12.
17

(1980) 248 NLRB 219 [103 LRRM 1480]; Kolman Div. of Athey
Products Corp. (1986) 282 NLRB 203 [123 LRRM 1343].)
SEIU contends that the County's denial of the Turk grievance
'was in effect a repudiation of the grievance procedure,' and as
such was bad faith bargaining on the County's part. 	SEIU asserts
that '[t]he grievance procedure in large part is a bargaining
process that is utilized by both parties to ensure compliance with
the Memorandum of Understanding.' 	SEIU relies on County of
Riverside (2003) PERB Decision No. 1577-M (County of
Riverside), which held that the County's refusal to process a
grievance under similar circumstances constituted a unilateral
repudiation of the grievance procedure.
In its post-hearing brief, the County does not defend against the
claim of unilateral repudiation of the grievance procedure as a
result of the refusal to process the Turk grievance, but instead
focuses on the theory of the case as alleged in the PERB
complaint. The County seizes on the language of the complaint,
which alleges that it violated the MMBA by unilaterally
repudiating the provisions requiring submission of grievability
issues to the State Mediation and Conciliation Service.
Proceeding from this premise, the County argues that nothing in
the language of the new provisions suggests retroactive
applicability and that, in any event, SEIU failed to offer evidence
that it attempted unsuccessfully to invoke the mediation service
as to the Turk grievance.
Turk's grievance was filed in January 2002. 	Her unfair practice
charge was filed shortly thereafter, in February 2002. At the time
Turk filed her grievance and it was rejected, the language
concerning submitting disputed issues of grievability to the State
Mediation and Conciliation Service had not been added. 	That
language was added as a result of the June 2002 negotiations.
I agree with the majority opinion that provisions of the newly negotiated Article XIII,
Section 13, are intended to be applied retroactively, but only to the extent that the parties will
meet to determine the grievability of any grievances that are "currently the subject of Unfair
Labor Practice charges," and that the State Mediation and Conciliation Service will be utilized
to settle any grievability questions. It would have been futile for SEIU to meet with the
County concerning the grievability of Turk's grievance, considering the County had already
18

rejected to process her grievance, rejected to send seven to ten pending grievances with
grievability issues to the State Mediation and Conciliation Service, and rejected a similar type
of grievance in County of Riverside (2003) PERB Decision No. 1577-M. There is no evidence
to show that Article XIII, Section 13 is intended to replace Article VI, Section 5, of the parties'
MOU3 that was in effect at the time of the filing of the Turk's grievance on January 18, 2002.
Article VI, Section 5 provides that promotions shall be based on "merit and ability," which is
evaluated based on methods that are "practical in nature," such as oral or performance test.
Although interview is not one of the specific evaluation methods listed, it can arguably be
interpreted as a method that is "practical in nature." Pursuant to Article XIII, "Grievance
Procedure," Section 2, the "application or interpretation of the specific terms and conditions set
forth in this Memorandum of Understanding" is a subject for grievance. 	The County should
therefore resolve, rather than reject, Turk's grievance that she was denied an interview
pursuant to the Merit System and Grievance Procedures of the MOU. 	I therefore adopt the
following portions of the Conclusions of Law of the proposed decision:
Article VI, section 5, of the parties' MOU provides that
'appointments, promotions, demotions, transfers and dismissals'
shall be made on the basis of 'merit and ability.' 	The Turk
grievance alleged that the County failed to base its decision on
'merit and ability' when denied her an interview. In a case
involving the same parties and facts indistinguishable from those
here, PERB upheld the administrative law judge's finding that the
County's refusal to process a grievance alleging an employee's
complaint that she had been denied a promotion constituted an
unlawful unilateral change. 	(County of Riverside.) 	SEIU had
claimed that the employee was denied a promotion on grounds
that the appointing officer had either given insufficient weight to
3 Article V, Section 5, of the parties' MOU providing that "appointment, promotions,
demotions, transfers and dismissals" shall be made on the basis of "merit and ability;" and that
"The Human Resources Director shall determine the methods of evaluating the qualifications
of applicants. The methods shall be practical in nature and may involved any combination of
written test, oral test, performance test, ..."
19

her training and experience for the position or that the County
had not given the employee adequate training for the position.
(Ibid.') PERB rejected the County's argument that SEIU had
contractually waived its right to grieve the issue of promotions
generally, through the MOU's language recognizing the merit
system, and specifically, through the appointing officer's
discretion to select among individuals certified as eligible by the
human resources director. 	(The latter argument was reiterated by
Caves in this case.) The language purporting to constitute a
waiver was deemed insufficient to demonstrate the 'clear and
unmistakable' standard for waiver with respect to the issue of
grievability of promotions generally. 	(Ibid.) 	PERB cited the
language in article V, section 5, requirin-g that promotions be
made upon 'merit and ability,' as evidencing a ground upon
which a grievance could be lodged. 	(Ibid.) PERB also rejected
the claim that SEIU had failed to demonstrate more than an
'isolated breach' of the MOU, as opposed to a change in policy
having a generalized effect or continuing impact on bargaining
unit employees. (Ibid.)4
I am bound by this controlling precedent. The County has
provided no argument as to why County of Riverside is
distinguishable from the instant case. 	In effect, this case
demonstrates that the County continues to maintain its position
that it may reject grievances of the kind filed by Turk. 	The
position that grievances raising issues arising out of the
promotional process are not grievable (or that the County has
discretion not to process such grievances) was found in County of
Riverside to have constituted a repudiation of the policy of
processing grievances as defined in the parties' negotiated
grievance procedure.
Accordingly, I find that the County had a policy of processing
grievances alleging violations of article VI, section 5, pertaining
to "appointments, promotions, demotions, transfers and
dismissals" and that the County unilaterally repudiated that policy
PERB also denied the County's request for reconsideration of
PERB Decision No. 1577-M. (County of Riverside (2004) PERB
Decision No. 1577a-M.) In the subsequent matter, the Board
emphasized that whether or not the County had a past practice of
processing grievances pertaining to promotions is irrelevant. The
unilateral change violation found in PERB Decision No. 1577-M
is premised on the County's repudiation of its obligation to
process grievances over promotions arising from the express
provisions of the MOU.
20

on or about January 23, 2002, when it refused to process the Turk
grievance. 	I amend the complaint to conform to proof. This
conduct violated section 3505 of the MMBA and PERB
Regulation 32603(c). I find that by the same conduct the County
also denied SEIU its right to represent bargaining unit employees,
thereby violating section 3503 of the MMBA and PERB
Regulation 32603(b). In addition, I find that by the same conduct
the County interfered with Turk's right and the right of other
bargaining unit members to participate in an employee
organization of their own choosing, thereby violating section
3506 of the MMBA and PERB Regulation 32603(a).
REMEDY
I would add the following remedy to the majority opinion.
Pursuant to section 3509(a), the PERB under section 3541.3(i) is empowered to:
". . . 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."
The County has violated section 3505 of the MMBA and PERB Regulation 32603(c) by
unilaterally repudiating its contractual obligation to meet on the issue of grievability of the
SEIU grievance related to the denial of a promotional interview to Turk, that is currently the
subject of an unfair labor practice charge, and if necessary, to process the grievance. 	The
appropriate remedy in such cases is to require the County to rescind the policy change and
cease and desist from implementing any unilateral change.
PERB has found that purposes of the statutes it administers are not effectuated by a
remedy that fails to take into account the existence of a negotiated agreement between the
parties that addresses the "basic subject matter" raised in the unfair practice proceeding and
that is made prior to PERB's remedial order. (Rio Hondo Community College District (1983)
PERB Decision No. 279a (Rio Hondo').) Thus, PERB may take into account such an
intervening negotiated agreement or settlement in considering a remedy. 	(Rio Hondo).
21

Since the County and SEIU negotiated a procedure to deal with the grievability of
disputes, such as the one that gave rise to the underlying unfair practice charge in this case, the
County is ordered to meet with SEIU on the issue of grievability of the Turk grievance that is
currently the subject of an unfair practice charge. 	If the parties agree that this particular
grievance is grievable, it will be entered into the grievance process. If no agreement is
reached, the County is ordered to utilize representatives from the State Mediation and
Conciliation Service to settle questions of grievability and comply with their decisions on
grievability. 	If the grievance is determined to be grievable by either one of the above-stated
procedures, the County is ordered to process the Turk grievance.
Accordingly, as a result of the above-described violation, the County has interfered
with the right of employees to participate in an employee organization of their own choosing in
violation of section 3506 and PERB Regulation 32603(a), and denied SEIU its right to
represent employees in their employment relations with a public agency in violation of
section 3503 and PERB Regulation 32603(b). The appropriate remedy is to cease and desist
from such unlawful conduct. 	(Rio Hondo.)
Finally, it is the ordinary remedy in PERB cases that the party found to have committed
an unfair practice be ordered to post a notice incorporating the terms of the order. 	Such an
order ordinarily is granted to provide employees with a notice, signed by an authorized agent
that the offending party has acted unlawfully, is being required to cease and desist from its
unlawful activity, and will comply with the order. Thus, it is appropriate to order the County
to post a notice incorporating the terms of the order herein at its buildings, offices, and other
facilities where notices to bargaining unit employees are customarily posted. 	Posting of such
22

notice effectuates the purposes of the MMBA that employees be informed of the resolution of
this matter and the County's readiness to comply with the ordered remedy.
I concur with the order stated in the majority opinion, except to add that I would also
order the County to cease and desist from interfering with bargaining unit members' right to
participate in the activities of an employee organization of their own choosing; and denying
SEIU its right to represent employees in their employment relations with the County.
23

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. LA-CE-40-M, SEIU. Local 1997 v. County
of Riverside, in which all parties had the right to participate, and a review by the Board, it has
been found that the County of Riverside (County) violated the Meyers-Milias-Brown Act
(MMBA), Government Code section 3505 and California Code of Regulations, title 8, section
32603(a), (b), and (c). (Cal. Code Regs., tit. 8, sec. 31001, et seq.) The County violated the
MMBA by unilaterally changing a negotiated policy, Article XIII, Section 13, addressing the
process to resolve disagreements over the grievability of issues without providing Service
Employees International Union, Local 1997 (SEIU) with prior notice and an opportunity to
bargain.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with SEIU regarding a change in
policy affecting matters within the scope of representation;
2. 	Unilaterally changing Article XIII, Section 13, dealing with the process
to resolve disagreements over the grievability of issues without giving SEIU prior notice and
opportunity to bargain;
3. 	Failing and refusing to process grievances regarding interviews,
including the grievance filed by SEIU on behalf of Margaret Turk on January 18, 2002,
pursuant to the parties' agreed-upon grievance procedures.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays, following the date this decision is no longer
subject to appeal, process the grievance filed by SEIU on behalf of Margaret Turk filed on
January 18, 2002, and process all other grievances filed by SEIU regarding interviews, pursuant
to the parties' agreed-upon grievance procedures including, but not limited to, Article XIII,
Section 13, of the parties' Memorandum of Understanding.
Dated: 	COUNTY OF RIVERSIDE
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.