City of Clovis (PERB 2074M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OPERATING ENGINEERS LOCAL 3,
Charging Party, 	Case No. SA-CE-513-M
PERB Decision No. 2074-M
CITY OF CLOVIS, 	October 30, 2009
Appearance: Lozano Smith by David M. Moreno, Attorney, for City of Clovis.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the City of Clovis (City) to the proposed decision of
an administrative law judge (ALJ). The ALJ found that the City violated the Meyers-Milias-
Brown Act (MMBA)' when it failed to resume negotiations with Operating Engineers Local 3
(also referred to as Clovis Public Works Employees' Affiliation or CPWEA) after impasse was
broken, and failed to implement the City's last, best, and final offer after it was accepted by
CPWEA. The proposed decision ordered the City to implement a three percent salary increase
effective July 1, 2007.
The Board has thoroughly reviewed the proposed decision and the record in light of the
City's exceptions and the relevant law." Based on this review, the Board finds that CPWEA
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
The City's request for oral argument is denied. The Board has historically denied
requests for oral argument where an adequate record has been prepared, the parties had ample
opportunity to present briefs, and the issues before the Board are sufficiently clear to make oral
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OPERATING ENGINEERS LOCAL 3,
Charging Party,
V .
CITY OF CLOVIS,
Respondent.
V.
Respondent.
Case No. SA-CE-513-M
PERB Decision No. 2074-M
October 30, 2009
Appearance: 	Lozano Smith by David M. Moreno, Attorney, for City of Clovis.
Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION
WESLEY, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the City of Clovis (City) to the proposed decision of
an administrative law judge (ALJ). The ALJ found that the City violated the Meyers-Milias-
Brown Act (MMBA) 1 when it failed to resume negotiations with Operating Engineers Local 3
(also referred to as Clovis Public Works Employees' Affiliation or CPWEA) after impasse was
broken, and failed to implement the City's last, best, and final offer after it was accepted by
CPWEA. The proposed decision ordered the City to implement a three percent salary increase
effective July 1, 2007.
The Board has thoroughly reviewed the proposed decision and the record in light of the
City's exceptions and the relevant law. 2 Based on this review, the Board finds that CPWEA
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 The City's request for oral argument is denied. The Board has historically denied
requests for oral argument where an adequate record has been prepared, the parties had ample
opportunity to present briefs, and the issues before the Board are sufficiently clear to make oral

failed to establish that the City violated MMBA sections 3503, 3505, 3506 and 3509(b), and
PERB Regulation 32603(a), (b) and (c). Therefore, for the reasons stated herein, we reverse
the proposed decision and dismiss the complaint.
FINDINGS OF FACT
CPWEA is the exclusive representative of a unit of City employees who work in the
Public Works Department. CPWEA and the City are parties to a memorandum of
understanding (MOU) effective July 1, 2005 through June 30, 2008. The MOU includes a
provision that on or about March 2007, the parties would re-open negotiations regarding wages
for July 2007 through June 2008, the third year of the MOU.
The parties began negotiations on the wage re-opener in May 2007. After multiple
bargaining sessions the parties were unsuccessful in reaching agreement. On July 13, 2007,
the City proffered its last, best, and final offer of a three percent salary increase, effective
July 1, 2007. On July 17, 2007, CPWEA rejected the offer and declared impasse.
Following unsuccessful mediation sessions, the parties met to resume negotiations on
September 21, 2007. The City proposed a three percent salary increase effective July 1, 2007,
or in the alternative, a three percent salary increase effective October 1, 2007 plus a one-time
payment of $400. CPWEA countered with a proposal for a four percent wage increase. The
City rejected this proposal and informed CPWEA that the three percent salary increase
effective July 1, 2007 constituted its last, best, and final offer.
On September 28, 2007, CPWEA chief negotiator Doug Gorman (Gorman) sent a letter
to the City's chief negotiator, Jeff Cardell (Cardell), stating that the City's proposal had been
argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision
No. 1816-M; Monterey County Office of Education (1991) PERB Decision No. 913.)
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
failed to establish that the City violated MMBA sections 3503, 3505, 3506 and 3509(b), and
PERB Regulation 32603(a), (b) and (c).3 Therefore, for the reasons stated herein, we reverse
the proposed decision and dismiss the complaint.
FINDINGS OF FACT
CPWEA is the exclusive representative
of
a unit
of
City employees who work in the
Public Works Department. CPWEA and the City are parties to a memorandum
of
understanding (MOU) effective July
1,
2005 through June 30, 2008. The MOU includes a
provision that on or about March 2007, the parties would re-open negotiations regarding wages
for July 2007 through June 2008, the third year
of
the MOU.
The parties began negotiations on the wage re-opener in May 2007. After multiple
bargaining sessions the parties were unsuccessful in reaching agreement. On July 13, 2007,
the City proffered its last, best, and final offer
of
a three percent salary increase, effective
July
1,
2007. On July 17, 2007, CPWEA rejected the offer and declared impasse.
Following unsuccessful mediation sessions, the parties met to resume negotiations on
September 21, 2007. The City proposed a three percent salary increase effective July I, 2007,
or in the alternative, a three percent salary increase effective October
1,
2007 plus a one-time
payment
of
$400. CPWEA countered with a proposal for a four percent wage increase. The
City rejected this proposal and informed CPWEA that the three percent salary increase
effective July
1,
2007 constituted its last, best, and final offer.
On September 28, 2007, CPWEA chief negotiator Doug Gorman (Gorman) sent a letter
to the City's chief negotiator, Jeff Cardell (Cardell), stating that the City's proposal had been
argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision
No. 1816-M; Monterey County Office
of
Education (1991) PERB Decision No. 913.)
3 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

voted down by the union membership and the union again declared impasse. The letter also
informed the City that CPWEA intended to file an unfair practice charge alleging that the City
had engaged in surface bargaining.
On October 9, 2007, the City Manager sent a memorandum to employees represented
by CPWEA regarding the status of negotiations, stating in part:
Given the current fiscal conditions of the City, the declining
economy in general, and considering the competitiveness of the
existing wage scales for this unit in the marketplace, I believe
that the City's offer of a 3.0% wage increase retroactive to July 1,
2007, for all employees in this unit, was a very good offer.
CPWEA's labor representative informed the City's labor
negotiators that the unit members who voted on the City's most
recent wage proposal voted not to accept it. In view of the fact
that CPWEA representatives/membership has rejected various
versions of the City's wage offer several times, and considering
that CPWEA representatives have declared on two (2) occasions
that the negotiation process is at impasse, the City has decided to
conclude its efforts to reach agreement on this issue.
On October 24, 2007, CPWEA filed an unfair practice charge alleging that the City had
engaged in bad faith bargaining with respect to the wage re-opener.
After receiving the City Manager's October 9, 2007 memorandum, Gorman assumed
the City would implement its last, best, and final offer of a three percent salary increase.
Gorman was aware that the City had imposed final offers on other bargaining units. However,
by late January 2008, Gorman realized the City had not implemented the three percent wage
increase.
On February 1, 2008, after discussions with union membership, Gorman left a
voicemail message advising Cardell that CPWEA would dismiss the pending unfair practice
charge if the City would implement the three percent salary increase contained in its last, best,
and final offer.
3
voted down by the union membership and the union again declared impasse. The letter also
informed the City that CPWEA intended to file an unfair practice charge alleging that the City
had engaged in surface bargaining.
On October 9, 2007, the City Manager sent a memorandum to employees represented
by CPWEA regarding the status
of
negotiations, stating in part:
Given the current fiscal conditions
of
the City, the declining
economy in general, and considering the competitiveness
of
the
existing wage scales for this unit in the marketplace, I believe
that the City's offer
of
a 3.0% wage increase retroactive to July
1,
2007, for all employees in this unit, was a very good offer.
3
CPWEA's labor representative informed the City's labor
negotiators that the unit members who voted on the City's most
recent wage proposal voted not to accept it. In view
of
the fact
that CPWEA representatives/membership has rejected various
versions
of
the City's wage offer several times, and considering
that CPWEA representatives have declared on two (2) occasions
that the negotiation process is at impasse, the City has decided to
conclude its efforts to reach agreement on this issue.
On October 24, 2007, CPWEA filed an unfair practice charge alleging that the City had
engaged in bad faith bargaining with respect to the wage re-opener.
After receiving the City Manager's October 9, 2007 memorandum, Gorman assumed
the City would implement its last, best, and final offer
of
a three percent salary increase.
Gorman was aware that the City had imposed final offers on other bargaining units. However,
by late January 2008, Gorman realized the City had not implemented the three percent wage
mcrease.
On February 1, 2008, after discussions with union membership, Gorman left a
voicemail message advising Cardell that CP\VEA would dismiss the pending unfair practice
charge if the City would implement the three percent salary increase contained in its last, best,
and final offer.

In response, on February 7, 2008, Cardell sent a letter to Gorman that stated, in part:
Thank you for your telephone call of February 1, 2008, regarding
resolution of the Unfair Labor Practice Charge (ULPC) filed by
[CPWEA]. As I understand your proposed resolution, in
recognition of improved labor relations made in the Public
Utilities Department, CPWEA is willing to dismiss the ULPC in
exchange for implementing the City's "last best and final offer" of
three (3) percent effective July 1, 2007, which was offered by the
City during the last meet and confer process.
The City appreciates CPWEA's interest in resolving the ULPC.
The City also desires to resolve this issue; however, we must
decline the offer as stated above in view of the fact that CPWEA
previously rejected the City's wage offer and declared the
negotiations process to be at impasse. The City considers the
negotiations concerning wages for the third year of the 2005-
2008 MOU to be concluded. Additionally, the City considers the
assertions made by CPWEA in the ULPC to be without merit,
and therefore, not subject to the type of "trade off" you have
proposed.
Cardell concluded the letter by stating that the City looked forward to opening negotiations on
a successor MOU in the near future.
CPWEA did not respond to the City's February 7, 2008, letter.
On March 11, 2008, CPWEA amended its charge to allege that the City's February 7,
2008 letter was an unlawful rescission of the last, best, and final offer, and a further indicator
of surface bargaining.
On March 27, 2008, the PERB General Counsel issued a complaint that alleged that by
failing to implement its last, best, and final offer of a three percent wage increase for the third
year of the MOU, the City had committed an unfair practice.*
CPWEA withdrew all other allegations, leaving only the allegation regarding the
refusal to implement the last, best, and final offer.
In response, on February 7, 2008, Cardell sent a letter to Gorman that stated,
in
part:
Thank you for your telephone call
of
February
1,
2008, regarding
resolution
of
the Unfair Labor Practice Charge (ULPC) filed by
[CPWEA]. As I understand your proposed resolution, in
recognition
of
improved labor relations made in the Public
Utilities Department, CPWEA is willing to dismiss the ULPC in
exchange for implementing the City's "last best and final offer"
of
three (3) percent effective July
1,
2007, which was offered by the
City during the last meet and confer process.
The City appreciates CPWEA's interest in resolving the ULPC.
The City also desires to resolve this issue; however, we must
decline the offer as stated above in view
of
the fact that CPWEA
previously rejected the City's wage offer and declared the
negotiations process to be at impasse. The City considers the
negotiations concerning wages for the third year
of
the 2005-
2008 MOU to be concluded. Additionally, the City considers the
assertions made by CPWEA in the ULPC to be without merit,
and therefore, not subject to the type
of
"trade off' you have
proposed.
Cardell concluded the letter by stating that the City looked forward to opening negotiations on
a successor MOU in the near future.
4
CPWEA did not respond to the City's February 7, 2008, letter.
On March 11, 2008, CPWEA amended its charge to allege that the City's February 7,
2008 letter was an unlawful rescission
of
the last, best, and final offer, and a further indicator
of
surface bargaining.
On March 27, 2008, the PERB General Counsel issued a complaint that alleged that by
failing to implement its last, best, and final offer
of
a three percent wage increase for the third
year
of
the MOU, the City had committed an unfair practice.4
4 CPWEA withdrew all other allegations, leaving only the allegation regarding the
refusal to implement the last, best, and final offer.

DISCUSSION
MMBA section 3505 provides that local government agencies and recognized employee
organizations "shall meet and confer in good faith regarding wages, hours, and other terms and
conditions of employment."
The parties in this matter engaged in negotiation efforts on the wage re-opener from
May 2007, through September 28, 2007, when CPWEA rejected the City's last, best, and final
offer of a three percent salary increase, and declared impasse. The proposed decision held that
Gorman's subsequent voicemail message effectuated a valid acceptance of the City's offer,
which automatically created a binding, enforceable agreement between the parties. In its
appeal, the City contends that the evidence does not support finding that CPWEA accepted the
City's offer.
The Board agrees with the City and concludes the record does not establish that
CPWEA made a valid acceptance of the City's last, best, and final offer."
At the hearing on this matter, the entirety of Gorman's testimony on this issue is as
follows:
Q 	. . . when you made the phone conversation to Jeff
Cardell, was it your intent to accept the last, best and final offer?
A 	Yes, it was.
The record is void of any direct testimony by Gorman (or any other CPWEA witness)
as to the actual content of the voicemail message. The remainder of the CPWEA "testimony"
on this issue is made by CPWEA's attorney, primarily during opening arguments, and thus
cannot be considered evidence in support of CPWEA's charge.
Pursuant to MMBA section 3505.4, once an impasse has been properly reached
between the parties, a public agency "may implement its last, best, and final offer." This
provision is permissive, not mandatory. Therefore, while the parties are properly at impasse,
the City is not obligated to implement its last, best, and final offer.
5
DISCUSSION
MMBA section 3505 provides that local government agencies and recognized employee
organizations "shall meet and confer in good faith regarding wages, hours, and other terms and
conditions
of
employment."
The parties in this matter engaged in negotiation efforts on the wage re-opener from
May 2007, through September 28, 2007, when CPWEA rejected the City's last, best, and final
offer
of
a three percent salary increase, and declared impasse. The proposed decision held that
Gorman's subsequent voicemail message effectuated a valid acceptance
of
the City's offer,
which automatically created a binding, enforceable agreement between the parties. In its
appeal, the City contends that the evidence does not support finding that CPWEA accepted the
City's offer.
The Board agrees with the City and concludes the record does not establish that
CPWEA made a valid acceptance
of
the City's last, best, and final offer. 5
At the hearing on this matter, the entirety
of
Gorman' s testimony on this issue is as
follows:
Q
	...
when you made the phone conversation to Jeff
Cardell, was it your intent to accept the last, best and final offer?
A 	Yes, it was.
The record is void
of
any direct testimony by Gorman (or any other CPWEA witness)
as to the actual content
of
the voicemail message. The remainder
of
the CPWEA "testimony"
on this issue is made by CPWEA's attorney, primarily during opening arguments, and thus
cannot be considered evidence in support
of CPWEA's charge.
5 Pursuant to MMBA section 3505.4, once an impasse has been properly reached
between the parties, a public agency "may implement its last, best, and final offer." This
provision is permissive, not mandatory. Therefore, while the parties are properly at impasse,
the City is not obligated to implement its last, best, and final offer.
5

The bulk of the direct witness testimony as to the content of the voicemail message
comes from Cardell, who testified as follows:
Q 	Can you explain the nature of that contact?
A 	Mr. Gorman gave me a telephone call and made a
proposal that in exchange for dismissal of the unfair labor
practice charge that we should go ahead and implement the 3
percent offer retroactive to July 1". And it was with the spirit of,
or the recognition that the reason for the call was that things were
going well at the Public Utilities Department and let's try to put
this behind us and let's, so let's try to make this go away by we'll
dismiss this if a, [sic] if the 3 percent is provided back to July 15.
Cardell further testified that he understood Gorman's proposal to be nothing more than
a settlement offer of the unfair practice charge. The only other evidence of the content of
Gorman's voicemail message is reflected in Cardell's February 7, 2008 letter. In the letter,
Cardell summarized his understanding of the purpose of the call and CPWEA's proposal to
settle the charge. The City declined CPWEA's settlement offer via the February 7, 2008 letter,
explaining why it did not believe the offer to be an appropriate resolution to the unfair practice
charge.
Gorman's testimony, simply responding "yes" to the CPWEA attorney's
characterization of Gorman's subjective intent in making the telephone call to Cardell, is
wholly insufficient to demonstrate the actual content of the voice message. Therefore, in the
absence of evidence on the record to demonstrate that Gorman's telephone message was
anything more than an attempt to open settlement negotiations with respect to the unfair
practice charge, as reported by Cardell, we simply cannot make the leap to find that the
6
The bulk
of
the direct witness testimony as to the content
of
the voicemail message
comes from Cardell, who testified as follows:
Q
	Can
you explain the nature
of
that contact?
A 	Mr. Gorman gave me a telephone call and made a
proposal that in exchange for dismissal
of
the unfair labor
practice charge that we should go ahead and implement the 3
percent offer retroactive to July
1st_
	And it was with the spirit of,
or the recognition that the reason for the call was that things were
going well at the Public Utilities Department and
let's
try to put
this behind us and let's, so let's try to make this go away by
we'll
dismiss this
if
a,
[sic]
if
the 3 percent is provided back to July
1st_
Cardell further testified that he understood Gorman's proposal to be nothing more than
a settlement offer
of
the unfair practice charge. The only other evidence
of
the content
of
Gorman's voicemail message is reflected in Cardell's February 7, 2008 letter. In the letter,
Cardell summarized his understanding
of
the purpose
of
the call and CPWEA' s proposal to
settle the charge. The City declined CPWEA's settlement offer via the February 7, 2008 letter,
explaining why it did not believe the offer to be an appropriate resolution to the unfair practice
charge.
Gorman's testimony, simply responding "yes" to the CPWEA attorney's
characterization
of
Gorman' s subjective intent in making the telephone call to Cardell, is
wholly insufficient to demonstrate the actual content
of
the voice message. Therefore, in the
absence
of
evidence on the record to demonstrate that Gorman's telephone message was
anything more than an attempt to open settlement negotiations with respect to the unfair
practice charge, as reported by Cardell, we simply cannot make the leap to find that the
6

telephone message was a specific, and unconditional, acceptance of the City's last, best, and
final offer, that created an agreement between the parties."
Moreover, MMBA section 3505.1, provides that:
If agreement is reached by the representatives of the public
agency and a recognized employee organization or recognized
employee organizations, they shall jointly prepare a written
memorandum of such understanding, which shall not be binding,
and present it to the governing body or its statutory representative
for determination.
Consequently, even if Gorman's voicemail message represented a valid acceptance of
the City's last, best, and final offer, the proposed decision's finding that it created a binding
and enforceable agreement is in error. As the City correctly asserted in its appeal,
Section 3505.1 requires that the agreement be reduced to writing and ratified by the City
before it will become binding on the parties. Numerous cases have discussed and approved
this interpretation. In Long Beach City Employees Association, Inc. v. City of Long Beach
(1977) 73 Cal.App.3d 273, the court denied a petition to compel the city to adopt a
memorandum of understanding, and soundly rejected the union's argument that it was bad faith
for the city council to refuse to ratify the agreement. The Court explained that the MMBA,
. . . expressly provides that the memorandum 'shall not be
binding' but shall be presented to the governing body of the
agency or its statutory representative for determination, thus
reflecting the legislative decision that the ultimate determinations
are to be made by the governing body itself.
(Long Beach, p. 278, citing Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22.)'
he absence of evidence that CPWEA made any attempt to respond to the City's
February 7, 2008 letter to clarify its intent to accept the last, best, and final offer, as opposed to
making a settlement offer on the unfair practice charge, further supports our finding herein.
"Also citing Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d
328, and Crowley v. City and County of San Francisco (1977) 64 Cal.App.3d 450.
7
telephone message was a specific, and unconditional, acceptance
of
the City's last, best, and
final offer, that created an agreement between the parties.6
Moreover, MMBA section 3505.1, provides that:
If
agreement is reached by the representatives
of
the public
agency and a recognized employee organization or recognized
employee organizations, they shall jointly prepare a written
memorandum
of
such understanding, which shall not be binding,
and present it to the governing body or its statutory representative
for determination.
Consequently, even
if
Gorman' s voicemail message represented a valid acceptance
of
the City's last, best, and final offer, the proposed decision's finding that it created a binding
and enforceable agreement is in error. As the City correctly asserted in its appeal,
Section 3505.1 requires that the agreement be reduced to writing and ratified by the City
before it will become binding on the parties. Numerous cases have discussed and approved
this interpretation. In Long Beach City Employees Association, Inc.
v.
City
of
Long Beach
(1977)
73
Cal.App.3d 273, the court denied a petition to compel the city to adopt a
memorandum
of
understanding, and soundly rejected the union's argument that it was bad faith
for the city council to refuse to ratify the agreement. The Court explained that the MMBA,
...
expressly provides that the memorandum 'shall not be
binding' but shall be presented to the governing body
of
the
agency or its statutory representative for determination, thus
reflecting the legislative decision that the ultimate determinations
are to be made by the governing body itself.
(Long Beach, p. 278, citing Bagley
v.
City
of
Manhattan Beach (1976)
18
Cal.3d 22,)7
TThe absence of evidence that CPWEA made any attempt to respond to the City's
February 7, 2008 letter to clarify its intent to accept the last, best, and final offer, as opposed to
making a settlement offer on the unfair practice charge, further supports our finding herein.
7 Also citing Glendale City Employees' Assn., Inc. v. City
of
Glendale (1975) 15 Cal.3d
328, and Crowley
v.
City and County
of
San Francisco (1977) 64 Cal.App.3d 450.
7

In the case at hand, the record is void of any evidence that an agreement was reduced to
writing and ratified by the City. Therefore, a finding that a binding agreement was created
which mandates implementation of the three percent salary increase is contrary to law.
Unalleged Violation
The City also excepts to the ALJ's conclusion that Gorman's voicemail message
amounted to changed circumstances that broke the impasse between the parties, such that the
City's failure to resume bargaining was a violation of the duty to bargain in good faith."
We conclude that no findings can be made as to the allegation that the City violated its
duty to bargain in good faith when it failed to resume negotiations as a result of a significant
concession by CPWEA because it was not alleged in the complaint. The Board may only
review unalleged violations when the following criteria are met: (1) adequate notice and
opportunity to defend has been provided the respondent; (2) the acts are intimately related to
the subject matter of the complaint and are part of the same course of conduct; (3) the
unalleged violation has been fully litigated; and (4) the parties have had the opportunity to
examine and be cross-examined on the issue. (Fresno County Superior Court (2008) PERB
he proposed decision cites Local 512, Warehouse & Office Workers' Union v. NLRB
9th Cir. 1986) 795 F.2d 705, in support of the finding that acceptance of the City's last, best
and final offer by CPWEA creates a binding, enforceable agreement. However, this case is
distinguished, because the private sector parties in Local 512 were not covered by a statutory
scheme that mandated ratification of the parties' agreement. Furthermore, although the parties
in Local 512 were subject to a stipulation that any agreement reached would be binding only if
ratified by the employees and approved by the employer, the court made a specific finding that
these conditions had been satisfied.
" In Modesto City Schools (1983) PERB Decision No. 291, the Board held that
"impasse suspends the bargaining obligation only until 'changed circumstances' indicate an
agreement may be possible." Changed circumstances include concessions "which have a
significant impact on the bargaining equation." (Ibid.) The duty to bargain in good faith is thus
revived. Where concessions are made by one party, they must be given consideration by the
other, and a good faith effort must be made to determine the potential for agreement. (Ibid.)
8
In the case at hand, the record is void
of
any evidence that an agreement was reduced to
writing and ratified by the City. Therefore, a finding that a binding agreement was created
which mandates implementation
of
the three percent salary increase is contrary to law. 8
Unalleged Violation
The City also excepts to the ALJ's conclusion that Gorman's voicemail message
amounted to changed circumstances that broke the impasse between the parties, such that the
City's failure to resume bargaining was a violation
of
the duty to bargain in good faith.9
We conclude that no findings can be made as to the allegation that the City violated its
duty to bargain in good faith when it failed to resume negotiations as a result
of
a significant
concession by CPWEA because it was not alleged in the complaint. The Board may only
review unalleged violations when the following criteria are met: (1) adequate notice and
opportunity to defend has been provided the respondent; (2) the acts are intimately related to
the subject matter
of
the complaint and are part
of
the same course
of
conduct; (3) the
unalleged violation has been fully litigated; and ( 4) the parties have had the opportunity to
examine and be cross-examined on the issue. (Fresno County Superior Court (2008) PERB
8
T The proposed decision cites Local 512, Warehouse & Office Workers' Union
v.
NLRB
(9 th Cir. 1986) 795 F.2d 705, in support
of
the finding that acceptance
of
the City's last, best
and final offer by CPWEA creates a binding, enforceable agreement. However, this case is
distinguished, because the private sector parties in Local 512 were not covered by a statutory
scheme that mandated ratification
of
the parties' agreement. Furthermore, although the parties
in Local 512 were subject to a stipulation that any agreement reached would be binding only
ifratified by the employees and approved by the employer, the court made a specific finding that
these conditions had been satisfied.
9 In Modesto City Schools (1983) PERB Decision No. 291, the Board held that
"impasse suspends the bargaining obligation only until 'changed circumstances' indicate an
agreement may be possible." Changed circumstances include concessions "which have a
significant impact on the bargaining equation." (Ibid.) The duty to bargain in good faith is thus
revived. Where concessions are made by one party, they must be given consideration by the
other, and a good faith effort must be made to determine the potential for agreement. (Ibid.)

Decision No. 1942-C.) The unalleged violation also must have occurred within the applicable
statute of limitations period. (Ibid.)
These criteria have not been met in this case. As stated previously, the complaint
alleged only that the City violated its duty to bargain in good faith by failing to implement its
last, best, and final offer. The claim that Gorman's voicemail message constituted a "changed
circumstance" that revived the City's duty to bargain was not alleged in CPWEA's charge, was
not alleged in the complaint, was not introduced at hearing, and was not raised by CPWEA
until its post hearing brief. The City was not provided notice, or adequate opportunity to fully
litigate the issue, and did not have the opportunity to examine and cross-examine witnesses on
this issue. Therefore, we cannot consider whether the City's February 7, 2008, letter
constituted an unlawful failure to resume bargaining in response to changed circumstances, in
violation of the MMBA.
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, the complaint and underlying unfair practice charge in Case No. SA-CE-513-M are
hereby DISMISSED.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
99
Decision No. 1942-C.) The unalleged violation also must have occurred within the applicable
statute
of
limitations period. (Ibid.)
These criteria have not been met in this case. As stated previously, the complaint
alleged only that the City violated its duty to bargain in good faith by failing to implement its
last, best, and final offer. The claim that Gorman's voicemail message constituted a "changed
circumstance" that revived the City's duty to bargain was not alleged in CPWEA' s charge, was
not alleged in the complaint, was not introduced at hearing, and was not raised by CPWEA
until its post hearing brief. The City was not provided notice, or adequate opportunity to fully
litigate the issue, and did not have the opportunity to examine and cross-examine witnesses on
this issue. Therefore, we cannot consider whether the City's February
7,
2008, letter
constituted an unlawful failure to resume bargaining in response to changed circumstances, in
violation
of
the MMBA.
ORDER	ORDER
Based on the foregoing findings
of
fact and conclusions
of
law and the entire record in
this matter, the complaint and underlying unfair practice charge in Case No. SA-CE-513-M are
hereby DISMISSED.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.