County of Riverside * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M (PERB 2097M)

OVERRULED IN PART by County of Santa
Clara (2013) Decision No. 2321-M
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 777,
Chargi11g Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-373-M
PERB Decision No. 2097-M
February 10, 2010
Appearances: Sala Ponnech, Representative, for Laborers International Union of North
America, Local 777; Thomas J. Prescott, Employee Relations Division Manager, for County of
Riverside.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County of Riverside (County) to the proposed
decision of an administrative law judge (ALJ). The ALJ found that the County failed to meet
and confer in good faith in violation of the Meyers-Milias-Brown Act (MMBA)1 when it
unilaterally discontinued part of the Performance and Competency Pay Plan (CPP), without
providing the Laborers International Union of North America, Local 777 (Local 777) with
notice and an opportunity to bargain. The ALJ also found that the County violated a local rule,
the CPP, in violation of the MMBA.
The Board has reviewed the proposed decision and the record in light of the County's
exceptions, Local 777' s response and the relevant law. Based on this review, the Board finds
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

that Local 777 failed to establish that the County violated the MMBA at sections 3503, 3505,
and 3506, and PERB Regulation 32603(a), (b), (c) and (g). 2
SUMMARY OF FACTS
Local 777 is the exclusive representative
of
several classifications
of
information
techno 1ony
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Sometime in 2000, the County developed a new classification and pay plan for IT
employees to replace the existing step and grade plan. The CPP was designed to reward IT
employees who acquired and used additional technical competencies to perform their jobs.
The purpose
of
the plan was to allow the County to attract and retain highly skilled IT
employees and provide an incentive for employees to acquire advanced IT skills.
Under the CPP, employees received part
of
their salaries as "base pay" depending on
the job classification, and the rest as "dynamic pay" based on the addition
of
acquired
competencies or "hot skills" they actually used on the job. Employees were able to request an
increase in dynamic pay based on newly acquired "hot skills." Applications for additional "hot
skills" could be initiated at any time by the employee's manager (either on their own initiative
or at the employee's request), and were subject to review and approval by Human Resources
(HR) staff. Once a "hot skill" was approved, the employee would receive "hot skills" pay on
top
of
their base pay. "Hot skills" pay made up 35-50 percent
of
an IT employee's total salary.
In addition to the acquisition
of
"hot skills" obtained through the independent
submission process described above, IT employees were subject to an annual "focal review"
2 PERB regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq.
3 Other IT employees are in units represented by SEIU Local 1997. Representatives of
SEIU were present at labor/management meetings regarding the development and
implementation of a new step and grade plan to replace the CPP. However, neither SEIU nor
their represented employees are parties to these proceedings.
2
0 	0

during the third quarter
of
each fiscal year (January-March). At the focal review, the
employee's "hot skills" were evaluated, and an employee's salary could be increased or
decreased based on the number and value
of
their "hot skills." The annual focal review was
the only mechanism by which the County could decrease an employee's "hot skills" pay.
Local 777 was involved in the process
of
developing the CPP. Although she did not
represent Local 777 in 2000, Representative Sala Ponnech (Ponnech) testified that Local 777
participated in the approval
of
the CPP. The CPP was adopted by the Board
of
Supervisors as
Board Policy No. C-28,4 in March 2000. Section IX
of
the CPP states:
Administrative responsibility is granted to the Human Resources
Director to administer all sections
of
this policy, including
publishing amendments, policy revisions or discontinuing the IT
Performance and Competency Pay Policy, subject to any meet
and confer obligations with SEID Local 1997 or LIUNA
Local 777 over the effects
of
any changes.
In July 2006, Local 777 and the County negotiated a new memorandum
of
understanding (MOU), effective July
1,
2006 through June 30, 2010. The CPP was not
incorporated into the MOU. However, the General Wage Increase section
of
the MOU
referenced the plan. MOU Article XXVIII provided for specific yearly annual wage increases
to be applied only to "base salaries," except that for the year 2006, the increase for IT
employees would apply to both "base pay" and "hot skills" pay, as follows:
NOTE: The parties agree that the general wage increases for
2006 outlined above shall be applied to the base pay plus hot skill
pays for IT employees represented by [Local 777] who are in the
hot skill pay program. This is a one-year only arrangement.
Sometime in 2006, the County began to consider a change from the CPP, back to a
traditional step and grade plan. Variations of the reclassification plan were discussed at
labor/management meetings between the County and the unions. Although Local 777 was
4 The complaint incorrectly refers to this section as County Resolution No. 99-379.
3

aware that the County was developing a specific plan that would be presented to the unions, it
expected that employees would continue to be paid pursuant to the CPP until the new plan was
fully developed and properly noticed and implemented.
In late February 2007, Local 777 Representative Ponnech learned that the County was
not going to perform the annual focal reviews that would impact IT employee compensation
for the 2007-2008 fiscal year. Ponnech contacted the County's Senior Human Resources
Analyst to inquire about this change. The County confirmed that in anticipation
of
presenting
and implementing a new step and grade compensation plan, they had discontinued the focal
review process. However, the County assured Ponnech that employees would remain eligible
for additional "hot skills" pay through the independent submission process, and that the only
impact to employees from the discontinuance
of
the focal review would be that employees
would not have "hot skills" pay reduced pursuant to the focal review process. Based on these
representations, Local 777 did not object to the cessation
of
the focal reviews.
On March 20, 2007, Ponnech learned from a Local 777 member that the County had
discontinued the independent submission process as well, and would no longer accept or
consider requests for additional "hot skills." In addition, requests previously submitted
pursuant to the CPP, would no longer be processed. Ponnech again contacted the County's
Senior Human Resources Analyst, who confirmed that, with the exception
of
new hires and
employees promoting from one classification to another, the County was no longer accepting
or considering requests to add new "hot skills."
On March 23, 2007, Local 777 hand delivered a letter to Director
of
Human Resources,
Ron Komers requesting a meeting with the County regarding the changes made to the CPP.
The March 23, 2007 letter states:
[Local 777] members covered by the current Information
Technology Competency Pay Plan have informed us that they
4

will not be allowed to acquire competency pay. Upon checking
with Classification and Compensation, we found that this report
was true and that only new hires and employees promoting into
new concepts will be allowed to do so. We had believed that the
only change to the current salary procedures was that IT
employees would not have competencies taken away during this
year's focal review.
We were surprised that you had not notified us
of
this change,
which could impact our members' salaries and squarely falls
within the meet-and-confer provisions
of
the Meyers-Milias-
Brown Act. We request a meeting with you as soon as possible
to discuss this matter.
The County did not respond to the March 23, 2007 letter. Thereafter, on April 18,
2007, Local 777 filed the present unfair practice charge.
During this period, the County continued with its reclassification plans for IT
employees. In June 2007, the County formally notified Local 777 that it was discontinuing the
CPP, and provided them a copy
of
the proposed step and grade plan. The Board
of
Supervisors
approved the step and grade plan on June 12, 2007.
The County and Local 777 held labor/management meetings on June 13, 2007 and
July 11, 2007, to discuss various issues concerning the new plan. During the July
11
meeting,
Local 777 stated that while it had not raised any objections to the implementation
of
the new
plan thus far, it wanted to clarify for the record that Local 777 retained the right to discuss the
impact
of
the new plan, after the entire transition process was complete. The County agreed.
At a later meeting on July 19, 2007, between Ponnech, Thomas Prescott, employee
relations division manager for the County, and other management representatives, questions
were again raised regarding the transition to new classifications and the parties discussed the
issue of appeal processes for employees dissatisfied with their reclassification. The County's
earlier decision to discontinue the acceptance and consideration of requests for new "hot skills"
was neither raised nor discussed at any of these meetings.
5

On August 2, 2007, the County implemented the new step and grade plan and
transitioned all IT employees from the CPP to the new plan. Except for the County's decision
to stop considering additional "hot skills" requests in March 2007, which is the subject
of
this
unfair practice charge, Local 777 has not raised any issues concerning the County's transition
to the new step and grade plan for IT employees.
DISCUSSION
Restatement
of
the Issue/Unalleged Violation
The complaint alleged, in part:
4.	
On or about March 20, 2007, Charging Party learned that
Respondent no longer permitted information technology
employees to earn competency pay under Respondent's
Information Technology Competency Pay Plan.
5.	
Respondent engaged in the conduct described in paragraph 4
without prior notice to Charging Party and without having
afforded Charging Party an opportunity to meet and confer over
the effects
of
the change in policy.
In the proposed decision, the ALJ determined that paragraph 4
of
the complaint did not
accurately reflect the dispute between the parties. The ALJ stated:
The complaint alleged that the County 'no longer permitted
information technology employees to earn competency pay.' As
the County correctly pointed out in its closing brief, this
allegation was somewhat inaccurate in that employees continued
to receive competency pay after the change in policy. Instead,
the crux
of
the charge was that the employees were prevented
from earning additional competency pay by qualifying for new
dynamic ('hot skills') pay. Since all parties understood that
earning additional competency pay was the actual issue and
litigated the case accordingly, this minor variance in the
pleadings is disregarded. 	[Emphasis in original]
The ALJ set forth the issue in the proposed decision as follows:
Did the County violate the MMBA and local rules by unilaterally
deciding to stop considering additional 'hot skills' requests by IT
employees in March 2007?
6

The County argues that the ALJ' s restatement
of
the issue amounts to an improper
consideration
of
an unalleged violation. The County asserts that it presented its case based
solely on the allegation that it no longer permitted IT employees "to earn competency pay,"
and that this question is fundamentally different from whether employees were prohibited from
earning "additional competency pay." The County claims that it was not on formal notice
of
the issue as set forth by the ALJ, and was not provided the opportunity to present evidence on
the issue as modified.
The Board has the authority to 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 Decision No. 1942-C.) The unalleged violation also must have
occurred within the applicable statute
of
limitations period. (Ibid.) These criteria have been
satisfied.
Based on our review
of
the record, the Board finds the County's argument without
merit. The Board agrees with the ALJ, that all parties understood that acquiring additional
competency pay was the actual issue in this case, and that all parties litigated the case
accordingly. Thus, as explained below, the criteria for considering an unalleged violation have
been met.
From the outset of the hearing, Local 777 maintained that the matter at issue was the
County's decision to not consider requests for additional "hot skills" pay for current IT
employees. This was clearly defined in Local 777's opening statement, and not disputed by
the County. Moreover, Local 777's opening statement also made clear that there were no other
7

complaints by the union concerning the County's failure to meet and confer over any
other
aspect
of
IT pay. Both parties spent ample time at hearing addressing the relevant policy, the
process by which additional "hot skills" pay could be acquired, the circumstances leading up to
Local 777' s discovery in March 2007 that the County had discontinued accepting and
processing requests for additional "hot skills" pay, and the extent
of
the parties' bargaining
obligations with respect to this conduct.
The specific act
of
misconduct alleged against the County is the same under both
statements
of
the issue. Therefore, the issue as set forth by the ALJ is intimately related to the
same subject matter as the complaint and involves the same course
of
conduct. 5
Evidence was presented by both parties regarding the new step and grade plan
implemented by the County on August 2, 2007, and its relationship to the County's decision to
discontinue accepting requests for additional "hot skills" in March 2007. Moreover, the
transcript includes detailed examination by both parties
of
several employee requests for new
"hot skills," which Local 777 argued were wrongfully denied submission and/or consideration.
Both parties also specifically clarified the issue several times during the hearing,
bringing into focus the refusal by the County to accept or process requests for additional "hot
skills." For example, the County's attorney raised the following questions during cross-
examination
of
Ponnech:
Q
	...
and so the only change was sort
of
existing employees
were not going to be evaluated for new skills. Is that fair?
A 	That's fair.
Q
	...
that was the change that you were concerned about?
A 	That's correct.
5 Also, because the issues allege the same act of misconduct, the statute of limitations
requirement is satisfied as well.
8

Furthermore, the County's attorney engaged in significant cross-examination
of
Ponnech regarding whether or not Local 777 had the opportunity to meet and confer with the
County regarding the issue
of
the County's decision to discontinue processing new requests for
"hot skills" pay.
Finally, although the County argues that it only understood the issue to be whether or
not the County ceased making payments
of
existing "hot skills" pay to IT employees prior to
the implementation
of
the new plan in August 2, 2007, neither party engaged in any discussion
or presented any evidence on this issue. Nowhere in the record, except for the County's post
hearing brief, is there any evidence that either party had considered this to be the issue. And,
while the County does spend approximately one and one-half pages on this argument in its post
hearing brief, the remainder
of
its
12
page brief is predicated on the issue as stated by the ALJ.
Therefore, the Board finds the criteria for consideration
of
an unalleged violation to be
satisfied. The new statement
of
the issue involves the same alleged act
of
misconduct as that
stated in the complaint, the parties had adequate notice that the issue reflected the
discontinuation
of
additional competency pay, and the parties fully litigated the issue.
The County's Obligation to Bargain
The ALJ correctly found the parties' dispute involved the County's decision to stop
considering requests for additional "hot skills" pay. However, the ALJ erroneously held that
the County had an obligation to bargain the decision to discontinue the CPP, rather than
deciding whether the County had a duty to bargain the effects of its decision.
In determining whether a party has violated Section 3505 and PERB
Regulation 32603(c ), PERB utilizes either the "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
9

process. (Stockton Unified School District (1980) PERB Decision No. 143.)6 Unilateral
changes are considered "per se" violations
if
certain criteria are met. Those criteria are:
(1) the employer breached or altered the parties' written agreement or its own established past
practice; (2) such action was taken without giving the other party notice or an opportunity to
bargain over the change; (3) the change was not merely an isolated breach
of
the contract, but
amounts to a change in policy (i.e., it has a generalized effect or continuing impact upon
bargaining unit members' terms and conditions
of
employment); and ( 4) the change in policy
concerns a matter within the scope
of
representation. (Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802; 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.)
Where a change is made to a matter that is not within the scope
of
representation, or
where the right to demand bargaining over the decision to change has been waived by the
employee organization, the employer is obligated to provide notice and an opportunity to
bargain over the negotiable effects
of
the decision, but not the decision itself. (Sylvan Union
Elementary School District (1992) PERB Decision No. 919 (Sylvan), citing Aft. Diablo Unified
School District (1984) PERB Decision No. 373b; Newman-Crows Landing Unified School
District (1982) PERB Decision No. 223 (Newman-Crows Landing).)
In the case at hand, the County enacted the CPP in March 2000. Ponnech testified at
the hearing that at the time the policy was adopted Local 777 was aware
of
the implementation
of the provision and participated in some kind
of
approval process. Ponnech also
acknowledged that Section IX of the CPP provided that the County reserved the right to make
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. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)

changes to the CPP, including discontinuance
of
the program, "subject to any meet and confer
obligations with
...
Local 777 over the effects
of
any changes." (Emphasis added.) Nothing
in the record suggests that this provision was implemented improperly or otherwise invalid.7
As such, Local 777 is entitled to notice and an opportunity to bargain over the effects
of
the
County's decision to stop processing requests for additional "hot skills," but not over the
decision itself.8
Local 777's Request to Bargain
In dealing with effects bargaining, the employee organization is entitled to reasonable
notice and an opportunity to bargain over the negotiable effects
of
a non-negotiable decision.
(Trustees
of
the California State University (2007) PERB Decision No. 1926-H; Newman
Crows Landing.) Failure by the employee organization to make a valid request to bargain the
negotiable effects
of
the decision constitutes a waiver
of
the right to bargain regarding those
effects. (Ibid.)
7 The ALJ found insufficient evidence to show that the parties bilaterally negotiated the
CPP, and held that a waiver
of
the right to bargain the decision to make changes to the CPP, as
contained in Section IX, could not be based on a unilaterally adopted management policy.
Hov-;ever, this finding O\'erlooks fundamental Board precedent setting forth that when the
employer provides notice and a reasonable opportunity to meet and confer prior to
implementation
of
a change to a matter within the scope
of
representation, and the employee
organization fails to request to meet and confer, the right to demand bargaining over the decision
is waived by the employee organization. (Metropolitan Water District
of
Southern California
(2009) PERB Decision No. 2055-M; Stockton Police Officers' Assn.
v.
City
of
Stockton (1988)
206 Cal.App.3d 62, 66; Stationary Engineers
v.
San Juan Suburban Water Dist. (1979)
90 Cal.App.3d 796, 802; Santee Elementary School District (2006) PERB Decision No. 1822.)
Here it is t1ndisputed that Local 777 had notice and the opportunity to bargain over the
implementation of the CPP in March 2000. Under these circumstances, the CPP becomes valid
and binding on the parties.
8 Local 777 argues that the waiver of the right to bargain the decision to amend the CPP
is no longer valid because the CPP was incorporated by reference into the General Wage
Increases section of the MOU, thus making any changes to the CPP subject to bargaining. On
the contrary, the Board finds that even if the CPP itself had been incorporated into the MOU, it
would not invalidate the waiver provision in Section IX, but would reinforce the provision as a
negotiated term of the MOU.
11

Moreover, where formal notice is not given, but the "[a]ssociation receives actual
notice
of
a decision, the effects
of
which it believes to be negotiable, the employer's 'failure to
give formal notice is
of
no legal import'" and the burden is on the employee organization to
request bargaining. (Sylvan, citing Regents
of
the University
of
California (1987) PERB
Decision No. 640-H (Regents).) Thernfore, in order to make a prima facie case for violation
of
the duty to bargain in good faith over effects, the employee organization must demonstrate that
it made a valid request to bargain the negotiable effects
of
the employer's decision. (See
Sylvan; Regents; State
of
California (Department
of
Corrections) (2006) PERB Decision
No. 1848-S.)
A valid request to bargain need not consist
of
specific verbiage, "where there is a clear
demand to meet and discuss a matter." (Calistoga Joint Unified School District (1989) PERB
Decision No. 744 (Calistoga); Newman-Crows Landing.) However, it must clearly identify
negotiable areas
of
impact, and clearly indicate the employee organization's desire to bargain
over the effects
of
the decision as opposed to the decision itself. (Sylvan; Allan Hancock
Community College District (1989) PERB Decision No. 768 (Allan Hancock CCD); Newman-
Crows Landing.) A request that clearly demands to meet and discuss a matter, but fails to
indicate a desire to bargain effects as opposed to the decision itself, is not valid.
Again, in the case at hand, the CPP provided that the County could make changes to the
CPP, subject to the obligation to bargain over the effects
of
those changes.9 In March 2007,
9 Section IX
of
the CPP states:
Administrative responsibility is granted to the Human Resources
Director to administer all sections of this policy, including
publishing amendments, policy revisions or discontinuing the IT
Performance and Competency Pay Policy, subject to any meet
and confer obligations with SEIU Local 1997 or LIUNA
Local 777 over the effects of any changes. 	[Emphasis added.]
12

Local 777 learned that the County had made a change to the CPP, in that they had discontinued
accepting and processing requests by IT employees to add new "hot skills." Local 777
confirmed this with the County Human Resources Director, and within days, on March 23,
2007, served the Human Resources Director with a letter requesting
"a
meeting
...
to discuss
this matter." Based on the Board's standards outlined in Calistoga and Newman-Crows
Landing, the Board finds that the March 23, 2007 letter was a request to bargain even though it
did not specifically articulate an intention to "meet and confer" or "negotiate." Therefore, the
key question is whether it was a request to bargain effects as opposed to the decision itself.
In Newman-Crows Landing, the Board set forth that a request to bargain over an
agency's decision will not be interpreted as a request to bargain the effects
of
that decision.
The employee organization's request must clearly indicate the desire to bargain over the effects
as opposed to the decision itself. The union's charge, in that case, alleged that the employer
had refused to meet and confer with respect to the lay
off
of
certain enumerated employees.
The union stated in its charge that it had "requested the opportunity to negotiate about the
layoffs," that the "Respondent had failed to meet and negotiate on the issue prior to taking the
action to layoff," and furthermore that the union had "pointed out" that they "had concerns as
to the validity and/or accuracy
of
a seniority list
of
instructional aides." The Board, in its
decision, found that testimony at hearing indicated that the union had requested to negotiate
"taking the action to lay
off'
the employees, and that the union did not clarify to the employer
any desire to negotiate the effects issue. The Board also noted that the union's assertion that
once the employer had formally announced the layoffs the union believed the matter to be
closed and any further negotiations futile, and the fact that the remedy requested by the union
was not an order to bargain impacts of the layoffs, but an order to rescind the layoffs and rehire
the laid off employees, further supported the conclusion that the union demanded bargaining
13

over the decision to layoff, and not the effects
of
that decision. Therefore, although at the time
of
the hearing, the union claimed to have been primarily interested in negotiating the effects
of
the layoff, it failed to demonstrate that its demand to bargain gave notice
of
a desire to bargain
effects as opposed to the decision to layoff itself. In the absence
of
specific notice
of
intent to
bargain effects, the Board found that the employer's failure to negotiate could only be directed
to the matter
of
the layoff itself, and not to the effects
of
the layoff.
10
In the present case, Local 777's letter to the County confronted the County with its
decision to change the salary procedures by discontinuing the policy
of
allowing IT employees
to acquire new "hot skills" pay. The letter went on to state that Local 777 was surprised that
the County "had not notified [them]
of
this change, which could impact [its] members' salaries
and squarely falls within the meet-and-confer provisions
of
the Meyers-Milias-Brown Act"
(emphasis added), and requested to meet to discuss the matter. The letter fails to indicate a
desire by Local 777 to negotiate the effects
of
the change as opposed to the change itself.
11
Although the letter references that the change could impact its members' salaries, the Board
10
This standard has been followed in numerous Board cases: Delano Joint Union High
School District (1983) PERB Decision No. 307 (union protest
of
district action, request to
meet with the school board, and statement regarding timing
of
negotiations not sufficient to
indicate intent to bargain effects); Allan Hancock CCD (demand to bargain "wages, hours and
working conditions" following a position reclassification, and demand to bargain on the "fine
arts position" held not sufficient to indicate interest in negotiating the effects
of
the
reclassification); Sylvan (expression
of
concern over the elimination
of
a position, and the
impact on the employee's ability to reapply for other positions, held inadequate request to
bargain and insufficient to indicate intent to bargain the effects
of
the decision over the
decision itself).
11
The ALJ found that the March 23, 2007, letter satisfied the Newman-Crows Landing
test for effects bargaining, in that it requested to bargain the elimination
of
future "hot skills"
applications, which is an identifiable "effect" of the decision to implement the new step and
grade compensation plan. However, in its closing brief, Local 777 clearly distinguished the
decision to stop accepting applications for new "hot skills," prior to March 2007, from the
decision to implement the new step and grade plan in August 2007, and specifically argued that
the former decision was the basis of their request to bargain.
14

finds that this reference serves merely to demonstrate a reason why the County's decision to
make the change "squarely falls" within the provisions of the MMBA, e.g., because wages are
a matter within the scope of representation. As such, the Board finds that the reference to
salaries does not indicate, or put the County on notice of, a clear desire to negotiate the effects
of the decision as opposed to the decision itself.
Local 777 demonstrated its understanding of the importance of clearly articulating the
desire to negotiate the effects of a non-negotiable decision during meetings in June and July
2007 regarding the County's implementation of the new step and grade plan, when it
specifically reserved the right to bargain the effects of the new plan. Notably, Local 777 never
raised the issue of the additional "hot skills" requests during these meetings, suggesting that
Local 777 believed the matter of the additional "hot skills" requests to be closed at that point
and negotiations futile. As in Newman Crows-Landing, this also supports the conclusion that
Local 777 was interested in bargaining the decision to stop processing additional "hot skills"
requests and not the effects of the decision.
Furthermore, Local 777' s charge alleges that "The County's failure to meet and confer
before unilaterally implementing its decision not to allow current employees to acquire new
hot skills is a violation of its obligation to meet and confer under the [MMBA ]" and demands
as a remedy that all requests be processed pursuant to the CPP, and that the County meet and
confer about any and all proposed changes to the IT pay plan. Local 777's post-hearing brief
further argues that the "hot skills" pay program was incorporated into the parties' MOU,
making any decision to change the program subject to bargaining. Based on the analysis in
Newman Crows-Landing, these statements support the conclusion that at the time of its
demand to bargain, Local 777 did not clearly indicate a desire to negotiate over the effects of
the decision to change the pay plan, as opposed to the decision itself.
15

Finally, the record contains contradicting assertions as to whether Local 777 desired to
negotiate the effects
of
the County's decision to stop processing requests for additional "hot
skills," or the decision itself. However,
if
anything, Local 777's vacillating compels the
finding that it did not communicate to the County a clear intent to negotiate effects as opposed
to the decision itself. Therefore, based on our thorough evaluation
of
the record, the Board
finds that Local 777 failed to establish that its March 23, 2007, demand to bargain indicated an
intent to bargain the effects
of
the decision as opposed to the decision itself, and thus fails to
establish a prima facie case for violation
of
the duty to bargain in good faith.
Violation
of
Local Rule
The complaint alleges that by the same conduct the County violated a local rule, the
CPP. The Board found herein, that this provision established the County's obligation to
bargain the effects
of
the County's decision to change the CPP, but not the decision itself.
Therefore, since the Board finds that Local 777 failed to establish a prima facie case for refusal
to bargain effects in this case, there is no violation
of
the local rule.
ORDER
Based on the foregoing findings
of
fact and conclusions
of
law, the complaint and
underlying unfair practice charge in Case No. LA-CE-373-M are hereby DISMISSED.
Acting Chair Dowdin Calvillo and Member McKeag joined in this Decision.
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