City of Fresno (PERB 1841M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATIONARY ENGINEERS LOCAL 39,
Charging Party,
v.
CITY OF FRESNO,
Respondent.
Case No. SA-CE-312-M
PERB Decision No. 	1841-M
May 	1 8 , 	2006
Appearance: 	Weinberg, Roger & Rosenfeld by Brooke D. Pierman, Attorney, for Stationary
Engineers Local 39.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(Board) on appeal by the Stationary Engineers Local 39 (Local 39) of a Board agent's partial
dismissal (attached) of its unfair practice charge. 	The charge alleged that the City of Fresno
(City) violated the Meyers-Milias-Brown Act (MMBA)1 by engaging in bad faith bargaining
through bypassing the exclusive representative and dealing directly with bargaining unit
employees, refusing to bargain, surface bargaining, withholding information and unlawfully
declaring impasse. The Board agent issued a partial dismissal of the charges alleging bypass
bargaining, surface bargaining and bad faith bargaining.
The Board has reviewed the entire record in this matter, including the initial unfair
practice charge, the two amended charges, the response from the City, the Board agent's
warning and partial dismissal letters and Local 39's appeal. 	The Board finds the warning and
The MMBA is codified at Government Code section 3500, et seq.

2
partial dismissal letters to be free of prejudicial error and adopts them as the decision of the
Board itself.
ORDER
The partial dismissal of the unfair practice charge in Case No. SA-CE-312-M is hereby
AFFIRMED.
Members Shek and McKeag joined in this Decision.
2

All
STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax:(916)327-6377
June 23, 2005
Brooke Pierman, Attorney
Weinberg, Roger & Rosenfeld
428 J Street, Suite 520
Sacramento, Ca 95814
Re: Stationary Engineers Local 39 v. City of Fresno
Unfair Practice Charge No. SA-CE-312-M, Second Amended Charge
PARTIAL DISMISSAL LETTER
Dear Ms. Pierman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 9, 2005.1 The Stationary Engineers Local 39 alleges that
the City of Fresno violated the Meyers-Milias-Brown Act (MMBA)2 by bargaining directly
with employees, making threats, degrading the Union's bargaining position, refusing to
bargain, bad faith bargaining, and unlawfully declaring impasse.
I indicated to you in my attached letter dated May 13, that the above-referenced charge did not
state a prima facie case. You were advised that, if there were any factual inaccuracies or
additional facts which would correct the deficiencies explained in that letter, you should amend
the charge. You were further advised that, unless you amended the charge to state a prima
facie case or withdrew it prior to May 27, the charge would be dismissed. On May 25, you
requested a one-week extension to file an amended charge to June 3. I granted your request.
On June 3, I received the Union's amended charge. The Union failed to provide any new or
additional facts that correct the deficiencies detailed in the warning letter sufficient to make out
a prima facie case for bypass/direct bargaining, interference, or surface bargaining. 	In fact, no
new facts were introduced to support the allegation of bypass/direct bargaining. 	The warning
letter provides a detailed discussion of each of the above allegations plus failure to provide
information. 	Hereafter, I will provide a supplemental discussion addressing interference and
surface bargaining, the allegations reintroduced by the Amended Charge, but which fail to state
a prima facie case.
dates hereafter refer to 2005 unless otherwise noted.
2 The MMBA is codified at Government Code section 3500 et seq. 	The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
All

SA-CE-312-M
June 23, 2005
Page 2
Interference
In the First Amended Charge, the Union alleges that the City interfered with representation and
degraded the Union's bargaining position by sending a letter directly to employees and further
communicating with employees via a survey. The Second Amended Charge alleges more
untruths are contained in the City's letter. However, as indicated in the warning letter, "the
charging party must show that the employer's communications would tend to coerce or
interfere with a reasonable employee in the exercise of protected rights." ("California State
University (1989) PERB Decision No. 777H.) In this case, the City's statements, true or
untrue, do not constitute a threat of reprisal or force or promise of benefit. 	(Charter Oak USD
(1991) PERB Decision No. 873.) For example, the City's letter says that they have managed
to avoid layoffs, in part, because employee organizations have agreed to hold down salary and
benefit costs during negotiations. The preceding language does not constitute a threat of
layoffs because it does not indicate that layoffs will occur unless the Union signs a contract
with no salary increases.
Surface Bargaining
In the Second Amended Charge, the Union alleges that the City adamantly refused to consider
proposals that did not exactly mirror the language already ratified by other bargaining units.
The Second Amended Charge includes examples of the City's bargaining proposals (e.g. 3 year
contract with no salary increases in the first two years, a two percent equivalent in the second
year that could not go to salaries, and a third year potential salary increase dependent on
economic triggers; no more than $541 per employee for health care costs.). The Union
includes the City's rationale for not increasing salaries for the Local 39 contract (because other
City contracts include most favored nation clauses). 	The Union also details the City's main
concerns - workers compensation costs to 76% and later, health care costs. However, as
indicated in the warning letter, an adamant insistence on a bargaining position is not
necessarily a refusal to bargain in good faith. 	(Placentia Fire Fighters, supra; Oakland Unified
School District supra, PERB Decision No. 275.) The facts seem to suggest that the City had a
rational basis for their position. (NLRB v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229
[45 LRRM 2829, 2830].)
Ultimately, the Amended Charge does not correct the deficiencies detailed in the warning letter
for the allegations of bypass/direct bargaining, interference, or surface bargaining. 	Therefore, I
am dismissing those allegations which fail to state a prima facie case based on the facts and
reasons contained herein and in my May 13 letter.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-312-M
June 23, 2005
Page 3
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. (Regulations 32135(a) and 32130.) A document is also
considered "filed" when received by facsimile transmission before the close of business on the
last day for filing together with a Facsimile Transmission Cover Sheet which meets the
requirements of Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. 	(Regulation 32132.)

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June 23, 2005
Page 4
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By
Erin R. Koch-Goodman
Regional Attorney
Attachment
cc: Howard A. Sagaser, Esquire

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone:
Fax:(916)327-6377
May 13, 2005
Brooke D. Pierman, Attorney
Weinberg, Roger & Rosenfeld
428 J Street, Suite 520
Sacramento, CA 95814-2341
Re: Stationary Engineers Local 39 v. City of Fresno
First Amended Unfair Practice Charge No. SA-CE-312-M
WARNING LETTER
Dear Ms. Pierman:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 26, 2005. The Stationary Engineers Local 39 alleges that
the City of Fresno violated the Meyers-Milias-Brown Act (MMBA)1 by bargaining directly
with employees, making threats, degrading the Union's bargaining position, refusing to
bargain, bad faith bargaining, and unlawfully declaring impasse.
Stationary Engineers, Local 39, is the exclusive representative of the City of Fresno's Blue
Collar Unit. The collective bargaining agreement expired on June 30, 2004. The parties began
negotiations for a successor agreement on April 29, 2004. The parties have met more than 19
times in an attempt to reach agreement. 	Several proposals have been exchanged between the
parties. The Union alleges that the City has, without explanation, cancelled negotiations
sessions; sent negotiators without authority to bargaining sessions; attended a bargaining
session without the City's lead negotiator present; made only package proposals to the Union;
unlawfully declared impasse and failed to provide requested information.
On or about January 5, 2005, the City declared impasse and has henceforth refused to meet
with the Union. The Union alleges that the City has failed to comply with the City's
Municipal Code for the resolution of impasses.
On or about January 7, 2005, the City sent a letter to all bargaining unit members. The letter
discussed the city's financial issues and the negotiations between the City and the Union. The
letter states that the City "has paid Local 39 $500 per month per employee for health insurance.
This amount is the same provided to all city employees for health insurance." According to the
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
PERS

SA-CE-312-M
May 13, 2005
Page 2
Union, this is inaccurate because the City pays $541.50 for some City employees in a different
bargaining unit. 	The letter also states: "Local 39 has offered to give up this inequity in
exchange for agreements that were adverse to City policy (binding arbitration) or too costly in
wage or benefit increases." The Union alleges that this portion of the letter is not a factual
statement about negotiations, and is only the City's opinion. Additionally, the City's letter
states:
We continually look for ways to maintain a balance between
customers, employees and the financial health of the City. As we
do, the contracting of some services is being explored. While
contracting of City services impacts City jobs, we have offered to
Local 39 in the present negotiations that affected employees
would be guaranteed a job during the first year of a new contract.
As importantly as saving jobs (sic), the City has maintained its
commitment to providing you and your family a quality,
affordable and accessible health insurance plan. 	Unfortunately,
the City's proposal to maintain this commitment has been
rejected by your union.
The Union alleges that this letter contains threats against employees regarding contracting out
and healthcare expenses.
On February 2, 2005, the City circulated a survey to all City employees to "assess how well we
are currently doing with respect to our key objective of Employee Satisfaction and provide a
baseline for future improvements." The survey was voluntary and the City said that "all
individual responses will be kept completely confidential by the independent research
organization that will be conducting the survey." The Union alleges that the survey is
improper Boulwarism, and by surveying the employees and planning to present the results of
the survey as a proposal at the bargaining table, the City is directly dealing with represented
employees and surface bargaining.
Direct/Bypass Bargaining
The Union alleges that the City bargained directly with employees by sending a letter to
epresented employees. 	An employer may not communicate directly with employees to
ndermine or derogate the representative's exclusive authority to represent unit members.
Muroc Unified School District (1978) PERB Decision No. 80.)
r
u
( 2 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.) However, once a policy has
been established by lawful means, an employer has the right to take necessary actions,
including consulting with employees, to implement the policy. (Ibid.) To establish that an
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.)

SA-CE-312-M
May 13,2005
Page 3
employer has unlawfully bypassed the union, the charging party must demonstrate that the
employer dealt directly with its employees (1) to create a new policy of general application, or
(2) to obtain a waiver or modification of existing policies applicable to those employees.
(Ibid.)
The facts do not allege any direct dealing with the Local 39 represented employees to create a
new policy or to obtain a waiver or modification of existing policies applicable to those
employees. The letter at issue informs the employees of the State deductions taken from the
General Fund, the increase in healthcare costs, and discusses the California financial crisis.
The letter also discusses the negotiations between the City and the Union. There is no
indication that the City was offering a new proposal (that had not already been introduced to
the Union), or that the City was asking for a response to the letter from the employees.
Therefore, the charge as it stands does not establish a prima facie case for direct bargaining.
Interference
The Union alleges that the City interfered with representation and degraded the Union's
bargaining position by sending a letter directly to employees and further communicating with
employees via a survey. As to the allegation of interference, I will first discuss the City's letter
and then address the survey.
The MMBA, similar to the National Labor Relations Act (NLRA), imposes on employers an
obligation to bargain in good faith. The NLRA also expressly guarantees employers the right
of free, non-coercive speech. Section 8(c) of the NLRA provides as follows:
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of
benefit. (29 U.S.C, sec. 158(c).)
The MMBA does not contain a provision paralleling section 8(c). However, the Board has
held under the Educational Employment Relations Act (EERA),3 which also does not contain a
provision paralleling section 8(c), that a public agency is entitled to express its views on
employment related matters over which it has legitimate concerns in order to facilitate full and
knowledgeable debate. In so holding, the Board stated that it is unreasonable to assume that
the Legislature intended to restrict a public agency from disseminating its views regarding the
employment relationship once an employee organization appeared on the scene. 	(Rio Hondo
Community College District (1980) PERB Decision No. 128.) Thus, it is appropriate to infer
that such free speech rights exist under the MMBA.4
EERA is codified at Government Code section 3540 et seq.
4 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SA-CE-312-M
May 13,2005
Page 4
To demonstrate a prima facie case of interference, the charging party must show that the
respondent's conduct tends to or does result in some harm to employee rights guaranteed by the
MMBA. (Carlsbad Unified School District (1979) PERB Decision No. 89 at p. 10.) In Chula
Vista City School District (1990) PERB Decision No. 834, at pp. 10 - 13, the Board reviewed
and quoted from its decision in Rio Hondo Community College District (1980) PERB Decision
No. 128, stating:
As more fully explained below, employer speech causes no
cognizable harm to employee rights granted under EERA unless
it contains "threats of reprisal or force or promise of a benefit."
Therefore, a prima facie case of interference cannot be based on
speech that contains no "threats of reprisal or force or promise of
a benefit."
Whether the employer's speech is protected or constitutes a proscribed threat or promise is
determined by applying an objective rather than a subjective standard. ("California State
University (1989) PERB Decision No. 777H.) Thus, "the charging party must show that the
employer's communications would tend to coerce or interfere with a reasonable employee in
the exercise of protected rights."
In this case, the City's statements do not constitute a threat of reprisal or force or promise of
benefit. 	The City does discuss California's fiscal crisis and the possibility of contracting out
some City services. However, there is no indication that this is a false representation of the
City's situation or that the City is attempting to coerce the employees to take any action or
refrain from taking any action. While the charge states that the City's letter is inaccurate as to
the amount spent on healthcare for other bargaining units, this small alleged inaccuracy of
$41.50, without a threat of reprisal or force or promise of benefit, is not enough to constitute an
unfair labor practice. Charter Oak USD (1991) PERB Decision No. 873. As to the letter, the
facts are insufficient to establish a prima facie case of interference.
The City also communicated with employees via a survey. The Union alleges that the City's
survey is another incident of interference. 	To date, no PERB case law directly examines
employer surveys. However, the NLRB provides on-point precedent. In Leland Stanford, Jr.
University (1979) 240 NLRB No. 1138 [100 LRRM 1391], the Board held that:
Surveys, even though they solicit grievances and impliedly
promise benefits do not interfere with employee rights unless the
underlying purpose was to undermine organizing activities of the
union; the solicitation of grievances by an employer is not illegal
unless it is accompanied by an express or implied promise of
benefits specifically aimed at interfering with, restraining, and
coercing employees in their organizational effort; a survey does
not breach an employer's bargaining obligation unless it is
attempted to erode the union's bargaining position.

SA-CE-312-M
May 13, 2005
Page 5
The facts of the instant case are substantially similar to those in Leland. Here, the survey
queried all City employees about working relationships with supervisors and managers, asked
employees whether the City was providing clear direction, and whether employees have the
tools/training to do a good job. The survey asks only one question about salary (is your salary
comparable to others who do the same work?), and one question about benefits (are you
satisfied with your vacation, sick leave, and retirement?). In this case, like Leland, there was
no attempt to "deal with" the employees. The survey was voluntary and confidential and
conducted by an independent third party. 	The survey was sent to represented and non-
represented employees alike. At most, the survey was an attempt to elicit information from the
employees about their overall job satisfaction working for the City of Fresno. As in Leland,
the survey here does not interfere with the Union's rights to represent 750 of the City's 3500
employees. 	Without more, the survey does not make a prima facie case of interference.
Failure to Provide Information
The Union alleges that the City has failed to provide requested information. The Meyers-
Milias-Brown Act provides in section 3500(a), "[I]t is the purpose of this chapter to promote
full communication between public employers and their employees by providing a reasonable
method of resolving disputes regarding wages, hours, and other terms and conditions of
employment between public employers and public employee organizations."5
Thus the exclusive representative is entitled to all information that is "necessary and relevant"
to the discharge of its duty of representation. (Stockton Unified School District (1980) PERB
Decision No. 143).6 PERB uses a liberal standard, similar to a discovery-type standard, to
determine relevance of the requested information. 	(California State University (1986) PERB
Decision No. 613-H.) Failure to provide such information is a per se violation of the duty to
bargain in good faith.
The charge alleges that during bargaining, on December 8, 2004, the Union requested several
documents and the City has not provided them. The Union requested three documents: the
Solid Waste Division's employee satisfaction survey, classification and compensation study,
and economic forecast in light of Proposition 1A. In a letter dated February 22, 2005,
addressed to Bart Florence, the City states that the Solid Waste study has been located and will
be emailed to the Union; the classification and compensation study will be complete in
approximately two weeks and will be forwarded to the Union as well; and no economic
forecast exists because the Controller and Budget Office have not made specific projections
In addition, during bargaining the parties have "the mutual obligation personally to
meet and confer promptly upon request by either party and continue for a reasonable period of
time in order to exchange freely information, opinions, and proposals, and to endeavor to reach
agreement on matters within the scope of representation prior to the adoption by the public
agency of its final budget for the ensuing year." 	(Government Code section 3505.)
6 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.)

SA-CE-312-M
May 13, 2005
Page 6
but have indicated that they are available to discuss the issue with Local 39. 	Thus, it appears
that the City responded in a timely manner.
Under Oakland Unified School District (1983) PERB Decision
No. 367, if there is no request for additional information, then the
employer is not obligated to provide additional information as
there is no violation when an employer partially complies with a
request for information and after that, the employee organization
"never reasserts or clarifies its request." Trustees of the
California University (2004) PERB Decision No. 1732H).
At this time, the burden is clearly on the charging party to detail what documents were
originally requested and still have not been provided or in what manner the City has not
provided the documents requested.
Surface Bargaining
The charge alleges that the employer violated Government Code section 3505 and PERB
Regulation 32603(c)7 by engaging in bad faith or "surface" bargaining. Bargaining in good
faith is a "subjective attitude and requires a genuine desire to reach agreement." (Placentia Fire
Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25 [92 LRRM 3373].) PERB has held 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.)8 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; Placentia Fire Fighters, supra.)
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 Co. (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.) Dilatory and evasive tactics including canceling
meetings or failing to prepare for meetings is evidence of bad faith. 	(Oakland Unified School
District, supra, PERB Decision No. 326.) Conditioning agreement on economic matters upon-
prior agreement on non-economic subjects is evidence of an unwillingness to engage in a give-
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
8 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.)

SA-CE-312-M
May 13, 2005
Page 7
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.); 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 Unified School District, supra, PERB Decision No. 143;
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. 	(Placentia Fire Fighters, supra; Oakland Unified
School District, supra, PERB Decision No. 275.) "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].)
The Union alleges several specific incidents that evidence surface bargaining by the City. 	The
Union alleges that the City cancelled two successive days of negotiations without explanation.
At one bargaining session, City negotiators were without authority beyond the economic offers
already made. And, the City's lead negotiator was absent at one bargaining session. The City
states that the bargaining sessions were cancelled, and the Union notified, because the City's
outside negotiators' contract expired and needed to be renewed by the City Council prior to
further negotiations. 	The City states further that negotiators were not without authority simply
because they were not authorized to offer additional economic increases beyond the current
offer. 	And finally, the City states that even without the lead negotiator, City negotiators were
capable of conducting a negotiating session with the Union.
Collectively, the above examples fail to provide sufficient indicia of surface bargaining.
Although each and every proposal has been rejected by both sides, both parties have offered
several unique proposals. 	Until the declaration of impasse, the parties have not been held up
from negotiating because of the above cited behavior by the City. 	Moreover, in November
2004, the City requested the Union agree to the use of a mediator to assist with the process
towards agreement. According to the City, the Union has never responded to the request for
mediation. 	The City asserts that a mediator, Shirley Campbell, from the California State
Mediation and Conciliation Service has been assigned to resolve the dispute.
Without agreement, the City declared impasse. 	The Union provided the last offer, and the City
states that the proposal was rejected. The Union alleges that the City has violated the City of
Fresno Municipal Code, specifically Section 2-1916 (c)(l)(i), because no written demand for
an impasse meeting was delivered to the Union. The Municipal Code states, in relevant part:
(c) The impasse resolution procedures and the sequence in which
they must be utilized shall be as follows:

SA-CE-312-M
May 13, 2005
Page 8
(1) Impasse meeting:
(i) The party initiating the impasse resolution
procedures sequence shall deliver to the other party or
parties involved a written demand for an impasse meeting
together with a statement of the initiating party's position
on all matters at impasse.
On January 7, 2005, via a written memorandum, the City negotiator reported to the Assistant
City Manager on impasse detailing the City's interest in bargaining, the Union's interest in
bargaining, and a request for an impasse meeting. A copy of the letter was provided to the
Union. Given the above language, it seems that the requirements of Municipal Code Section
2-1916 (c)(l)(i) have been met. Therefore, the allegations, taken as a whole, do not make out a
prima facie case of surface bargaining.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled Second Amended Charge, contain
all the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before May 27, 2005, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Erin R. Koch-Goodman
Regional Attorney
EKG