Palomar Community College District * * * CLARIFIED by East Bay Regional Park District (2025) PERB Decision No. 2969-M * * * (PERB 2213E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNCIL OF CLASSIFIED EMPLOYEES/AFT,
LOCAL 4522,
Charging Party,
v.
PALOMAR COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-5226-E
PERB Decision No. 2213
October 27, 2011
Appearances: Gattey and Baranic by Jason L. Alrich, Attorney, for Council of Classified
Employees/ AFT, Local 4522; Rutan & Tucker by David C. Larsen, Attorney, for Palomar
Community College District.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Council of Classified Employees/AFT, Local 4522 (CCE)
of a dismissal of an unfair practice charge by an administrative law judge (ALJ). The charge
alleged that the Palomar Community College District (District) violated the Educational
Employment Relations Act (EERA)1 when it unilaterally changed its discipline policy without
providing CCE with prior notice or opportunity to bargain. CCE alleged this conduct
constituted a violation of EERA section 3543.5(c).
The issue in this case is whether the District committed an unlawful unilateral change
when it issued a letter of reprimand in May 2008 pursuant to a side letter of agreement
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated,
all statutory references herein are to the Government
* * * Clarified by East Bay Regional Park District (2025) PERB Decision No. 2969-M * * *

negotiated between the parties on November 18, 2005 (2005 Side Letter). According to CCE,
the 2005 Side Letter expired in February 2006 when the parties' collective bargaining
agreement (2006 Agreement) was last modified and, therefore, was not in effect when the
reprimand was issued. The ALJ found, however, that the 2005 Side Letter was in effect when
the letter of reprimand was issued. Accordingly, the ALJ dismissed the complaint, finding the
District did not make any change in policy when it processed the letter of reprimand under the
terms of the 2005 Side Letter.
The Board has reviewed the proposed decision and the record in light of CCE' s
exceptions, the responses thereto, and the relevant law. Based on this review, the Board
affirms the dismissal of the complaint and the underlying unfair practice charge for the reasons
set forth below.
FINDINGS OF FACT
There are virtually no factual disputes. The District is a public school employer within
the meaning ofEERA section 3540.l(k). CCE, a recognized employee organization within the
meaning of EERA section 3540.1 (1), represents a bargaining unit of the District's classified
employees. Over the years, the parties have maintained a series of agreements. The original
agreement was reached in July 1988, and was modified in January 1989, December 1989,
January 1991, November 1991, January 1995, and lastly in February 2006.2
The District contends that the 2006 Agreement is not a traditional collective
bargaining agreement, because it does not contain salary or health benefit provisions, an
integration clause, a zipper clause, an effective date, or the parties' signatures. Rather, it is a
"handbook" or series of agreements on various District policies. Nevertheless, the District
does not contend that the terms contained therein are not binding.
2

Several articles
of
the 2006 Agreement have remained unchanged over the years,
including Article 10, "Discipline," which states in relevant part:
B. A permanent classified employee may be disciplined by the
District for cause. The term 'discipline' refers to disciplinary
actions, penalties, and/or settlements including dismissal,
suspension, or demotion without the classified employee's
voluntary consent. All discipline must be reasonable, timely, and
related in severity to the seriousness
of
the offense.
The term 'discipline' for the purpose
of
this Board Policy does
not include adverse or negative evaluations, warnings, directives
and the denial
of
any leave. These actions may be used in
attempts to resolve problems informally prior to imposing formal
disciplinary action. 	[Emphasis added.]
Article 10 also provides that: 	(1) the employee will be given written notice
of
the
discipline; (2) the notice must include a statement that the employee may respond orally or in
writing prior to the end
of
ten days following service
of
the notice and is entitled to an
evidentiary hearing before any discipline is final; (3) the employee must make a written
request for such a hearing within 10 days ofreceipt
of
the notice; (4) the hearing will be held
within forty-five days
of
the request; and ( 5) the decision
of
the governing board or its
designee is final and binding.
Recognizing that the 2006 Agreement did not address rights granted peace officers
under the California Public Safety Officers Procedural Bill
of
Rights Act3 (POBR), the parties
executed the Side Letter in November 2005 to modify the minor discipline procedures for the
District's police officers. Relevant to this discussion, these new procedures included the
issuance
of
written reprimands. The 2005 Side Letter states in part:
1. Campus peace officers who have successfully completed the
probationary period shall be provided with the opportunity for
administrative appeal for any punitive action. 	'Punitive action' is
3 This Act is codified at California Government Code sections 3300-3312.
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defined as any personnel action which may lead to dismissal,
demotion, suspension, reduction in salary (other than that related
to a demotion), a written reprimand, if a transfer is claimed to be
for the purposes of punishment, or the termination of a
probationary peace officer for misconduct. The term 'punitive
action' shall be construed to mean any personnel action defined
as punitive action pursuant to Section 3303 of the Government
Code and as further defined by the controlling state judicial
precedent. ...
2. Administrative appeals of reductions in salary (other than
those resulting from demotion), written reprimands, or transfers
for purposes of punishment, shall be conducted in conformance
with the procedures set forth in ... this Agreement. 	[Emphasis
added.]
There is no language in the 2005 Side Letter regarding how long it would remain in
effect, and the parties did not discuss its duration during their negotiations.
On June 27, 2007, the District's chief of campus police issued a Notice of Intent to
Dismiss pursuant to Article 10 of the 2006 Agreement to Police Officer Gerard Perez (Perez).
After an appeals hearing, Perez and the District reached a written agreement under which Perez
would be suspended but not dismissed.
On May 14, 2008,4 the police chief issued an official letter ofreprimand under the
2005 Side Letter to Perez. The letter stated that an appeal would be heard by the vice president
of student services. On May 21, CCE filed an appeal objecting, inter alia, to the appointment
of Joseph Madrigal (Madrigal), then vice president of student services, as hearing officer
because Madrigal had previously called Perez a "bad employee." In its appeal, however, CCE
did not object to the application of the 2005 Side Letter.
On May 23, the District sent CCE a copy of the 2005 Side Letter and explained that
Madrigal is the proper person to hear the appeal. CCE responded on May 28, claiming that
4 All dates hereafter refer to the year 2008 unless otherwise specified.
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Madrigal would not be "a fair and impartial arbiter for this particular situation." CCE also
argued that the 2005 Side Letter was inapplicable because it was not incorporated into the new
2006 Agreement, as CCE had unsuccessfully proposed during negotiations.
On May 30, CCE wrote directly to Madrigal, seeking his recusal, objecting again to the
application of the 2005 Side Letter, and asking that no appeal be scheduled until these matters
were resolved.
By memo dated June 6, the District detailed its position supporting the 2005 Side
Letter. The District also stated that it found no reason to remove Madrigal, but that he was
willing to recuse himself voluntarily. By memo dated June 11, CCE detailed its position
against the use of the 2005 Side Letter. In response, on June 24, the District reiterated its
position regarding the applicability of the 2005 Side Letter and stated that, if CCE "desires to
modify this process set forth in the Side Letter Agreement, we continue to be open to those
discussions." The parties did not discuss the matter further.
An evidentiary hearing was conducted on Perez's appeal on September 16, before a
hearing officer other than Madrigal. In her decision dated November 3, the hearing officer
reduced Perez's letter ofreprimand to a letter of warning.
The only prior written reprimand issued by the District to a police officer was in 2005,
prior to the creation of the 2005 Side Letter. In that case, the parties followed the resolution
procedure in Article 10.B. of the 2006 Agreement. The subject employee challenged the
action, claiming the procedures did not comply with the rights afforded peace officers by
POBR. This challenge eventually lead to the creation of the 2005 Side Letter. There is no
other history of written reprimands, nor is there any history of other punitive actions handled
under the 2005 Side Letter.
5

ISSUE
Did the District commit an unlawful unilateral change when it issued Perez' letter
of
reprimand pursuant to the provision contained in the 2005 Side Letter?
DISCUSSION
In determining whether a party violated EERA section 3543.5(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 process. (Stockton Unified School District (1980)
PERB Decision No. 143.) An employer's unilateral change in terms and conditions
of
employment constitutes a "per se" violation
of
its duty to bargain in good faith when: 	(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. (Sonoma County Office
of
Education
(2011) PERB Decision No. 2160; Grant Joint Union High School District (1982) PERB
Decision No. 196; Walnut Valley Unified School District (1981) PERB Decision No. 160.)
There is no question in this case that a written reprimand is a matter
of
discipline and,
therefore, within the scope of representation. Nor is there a dispute that the District issued the
letter
of
reprimand pursuant to the procedures set forth in the 2005 Side Letter. 	Thus, the issue
in this case is whether the District's reliance on the procedures set forth in the 2005 Side Letter
constituted a change of policy.
6

Both the 2005 Side Letter and the 2006 Agreement contain discipline policies, and the
parties
do
not dispute that written reprimands are covered by the 2005 Side Letter. 	CCE,
however, contends that the 2005 Side Letter expired in February 2006, when the
2006 Agreement was last modified and, therefore, the 2005 Side Letter was not in effect when
the reprimand was issued. 	Consequently, CCE concludes the District's reliance on the
procedures set forth in the 2005 Side Letter constituted a change
of
policy. 	For the reasons set
forth below, we disagree.
A. 	Lodi Unified School District (2001) PERB Decision No. 1452 (Lodi)
In Lodi, the parties negotiated a written salary schedule agreement for certain food
service employees not covered by their CBA. The parties later negotiated a new agreement
that did not include the salary schedule. The school district, however, continued to pay the
covered classifications pursuant to the previously negotiated salary schedule. The union
alleged that the school district committed an unlawful unilateral change from the collective
bargaining agreement, claiming that the salary schedule agreement had expired. (Ibid.)
The ALJ' s proposed decision contained the following statement:
A side letter is an agreement
of
the parties that occurs during a
CBA term. It usually modifies or interprets an existing CBA
provision and remains in effect until that particular CBA term
ends. 	When that CBA term expires, the side letter expires unless,
by its own terms, it continues.
The Board subsequently adopted the proposed decision as a decision of the Board itself,
subject to some clarification. However, notwithstanding the above statement, the Board
specifically ordered the following language be struck from the proposed decision:
[The salary schedule agreement] merely remains in effect until
such time as one side or the other asks to negotiate a modification
and/or to insert it into the CBA.
7

Ultimately, the Board found the salary schedule agreement still in effect even though it
did not, by its own terms, continue, and a new collective bargaining agreement was
subsequently reached by the parties. In light
of
this conclusion, we do not find the ALJ' s
statement regarding the duration
of
side letters to be dispositive in this case.
B. 	City
of
Riverside (2009) PERB Decision No. 2027-M (Riverside)
The Board later considered the duration
of
side letters in Riverside. In that case, the
parties negotiated an agreement (Promotion Agreement) to resolve a grievance that established
seniority-based criteria for the promotion
of
mini-bus drivers. Although this agreement was
not incorporated into a memorandum
of
understanding, the city's mini-bus drivers were
promoted in accordance with the Promotion Agreement from July 1999 through the end
of
2005. In 2006, the parties executed a memorandum
of
understanding (2006 MOU) that, among
other things, established merit-based promotional criteria for all employees in the mini-bus
drivers' bargaining unit. (Ibid.) In addition, Article 30, Subsection E
of
the 2006 MOU
provided:
This Memorandum
of
Understanding will supercede all Side
Letters. 	Both parties recognize that this excludes grievance
resolutions documents.
Beginning in October
of
2006, the city began promoting mini-bus drivers in accordance
with the 2006 MOU. The union filed an unfair practice charge alleging the city committed an
unlawful unilateral change when it began applying the promotional criteria set forth in the
2006 MOU.
The city argued that the Promotion Agreement was a side letter and was superseded by
the 2006 MOU. Consequently, the city was merely following the MOU when it ceased to
promote mini-bus drivers pursuant to the Promotion Agreement. The union, on the other hand,
8

argued that the Promotion Agreement was a grievance resolution document and was not
superseded by the 2006 MOU.
The Board found that the Promotion Agreement was not a side letter and, therefore, was
not superseded by operation of Article 30 of the 2006 MOU. Implied in Riverside, however, is
the fact that the supersession language of Article 30, and not the mere passage of the 2006
MOU, was the determining factor in whether the Promotion Agreement remained in full force.
Said another way, absent a provision in an MOU or an agreement between the parties, the side
letter did not automatically expire upon the ratification of a subsequently negotiated MOU.
C. 	The Term of a Side Letter is Controlled by the Parties
Harmonizing these two cases, we find a side ietter is an agreement between an
employer and union that typically: (1) modifies, clarifies or interprets an existing provision in
an MOU; or (2) addresses issues of interest to the parties that are not otherwise covered by the
MOU. At its most basic, a side letter is a contract between the parties. As such, the duration
of such an agreement is dictated by the provisions of the side letter itself (either express or
implied) or by the subsequent conduct of the parties. (See Riverside.) Consequently, absent a
provision in an MOU, an agreement between the parties or other evidence demonstrating the
parties intended it to expire, a side letter does not automatically expire upon the ratification of
a subsequently negotiated MOU.
D. 	The 2005 Side Letter Did Not Expire
In the instant case, the 2005 Side Letter does not contain an express provision regarding
its duration. To the contrary, the introductory paragraph of the 2005 Side Letter provides:
The Palomar Community College District (District) and the
representative of its classified bargaining unit; CCE/AFT, enter
into this Side Letter of Agreement (Agreement) for the purpose of
establishing an administrative appeal process with respect to only
9

those bargaining unit members represented by CCE/AFT who are
designated campus peace officers within the meaning of the
applicable provisions of the California Penal Code.
According to CCE President Becky McClusky, the 2005 Side Letter was negotiated to
address a gap in the MOU regarding lesser discipline for the District's police officers.
We find that both this testimony and the plain language of the introductory language of
the 2005 Side Letter support a finding that the parties likely intended the procedures set forth
in the 2005 Side Letter to remain in effect at least as long as the discipline policies of the
2006 Agreement excluded warnings and reprimands. The 2006 Agreement, however, was last
modified in 2006, and the discipline provisions were not changed. Thus, there is no provision
in the 2005 Side Letter that would have terminated it prior to the issuance of the letter of
reprimand. Similarly, there is nothing in the 2006 Agreement that would operate to terminate
the 2005 Side Letter. Indeed, the 2006 Agreement lacks a merger clause, an integration clause,
a supersession clause, an entire agreement clause, a zipper clause or any other provision that
would terminate, modify or extinguish the 2005 Side Letter. Last, there is no evidence in the
record that the parties mutually agreed to terminate the 2005 Side Letter.
Based on the foregoing, we find the 2005 Side Letter was still in effect when the
District issued the letter of reprimand to Perez. Accordingly, we find the District did not make
a change in policy when it processed Perez's letter ofreprimand under the terms of the
2005 Side Letter. We, therefore, conclude the District did not commit an unla,vful unilateral
change.

ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-5226-E are
hereby DISMISSED.
Members Dowdin Calvillo and Huguenin joined in this Decision.
11