Stanislaus Consolidated Fire Protection District (PERB 2231M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STANISLAUS CONSOLIDATED
FIREFIGHTERS, LOCAL 3399,
Charging Party, 	Case No. SA-CE-711-M
V . 	PERB Decision No. 2231-M
January 20, 2012	STANISLAUS CONSOLIDATED FIRE
PROTECTION DISTRICT,
Respondent.
Appearance: Wylie, McBride, Platten & Renner by Carol L. Koenig, Attorney, for Stanislaus
Consolidated Firefighters, Local 3399.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Stanislaus Consolidated Firefighters, Local 3399
(Local 3399) from a Board agent's partial dismissal of its unfair practice charge. The charge
alleged that the Stanislaus Consolidated Fire Protection District (District) violated the Meyers-
Milias-Brown Act (MMBA)' by: (1) engaging in unlawful surface bargaining; (2) unilaterally
eliminating a negotiated contract provision relating to union access rights without satisfying its
bargaining obligation; (3) unilaterally changing a negotiated contract provision relating to
"mergers and consolidations" without satisfying its bargaining obligation; (4) unilaterally
eliminating a past practice of allowing the use of union leave time from a "Union Time Bank"
to participate in union activities, including attendance at city council meetings when "State of
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STANISLAUS CONSOLIDATED
FIREFIGHTERS, LOCAL 3399,
Charging Party,
V.
STANISLAUS CONSOLIDATED FIRE
PROTECTION DISTRICT,
Respondent.
Case No. SA-CE-711-M
PERB Decision No. 2231-M
January 20, 2012
Appearance: 	Wylie, McBride, Platten & Renner by Carol L. Koenig, Attorney, for Stanislaus
Consolidated Firefighters, Local 3399.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Stanislaus Consolidated Firefighters, Local 3399
(Local 3399) from a Board agent's partial dismissal of its unfair practice charge. The charge
alleged that the Stanislaus Consolidated Fire Protection District (District) violated the Meyers-
Milias-Brown Act (MMBA) 1 by: (1) engaging in unlawful surface bargaining; (2) unilaterally
eliminating a negotiated contract provision relating to union access rights without satisfying its
bargaining obligation; (3) unilaterally changing a negotiated contract provision relating to
"mergers and consolidations" without satisfying its bargaining obligation; (4) unilaterally
eliminating a past practice of allowing the use 	union leave time from a "Union Time Bank"
to participate in union activities, including attendance at city council meetings when "State of
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

the District" addresses were made, without satisfying its bargaining obligation;
(5) failing/refusing to provide relevant and necessary information relating to a promotional
hiring; (6) refusing to promote an employee in retaliation for his protected conduct;
(7) interfering with employees' exercise of rights by stating that it was not "wise" to represent
members seeking to promote to management positions; (8) bargaining to impasse a non-
mandatory subject of bargaining; and (9) eliminating union access rights and the "Union Time
Bank" in retaliation for protected conduct." The Board agent determined that allegations 1, 2,
3, 5, 8 and 9 failed to state a prima facie case and issued a partial dismissal of these
allegations.
The Board has reviewed the entire record in this matter. Based on the Board's review
and in view of the relevant law, the Board reverses the partial dismissal of the charge and
directs that a complaint be issued for the reasons discussed below.
BACKGROUND
Charge Allegations Regarding Union Access
Local 3399 is the exclusive representative of the fire suppression and prevention
bargaining unit within the District. Local 3399 and the District entered into a Memorandum of
Understanding (MOU) effective July 1, 2006 through June 30, 2010. The MOU provision at
issue here is Section 20-2, which states in full:
Station Coverage During Union Meetings - The District shall
allow the union president or his representative to move his engine
to the station holding the meeting. His station will be covered by
an additional on-duty crew. The president or his representative
2
he Board agent directed the issuance of a complaint based on allegations 4, 6 and 7.
Local 3399 did not appeal the Board agent's determination that allegations 1, 3, 5
and 8 failed to state a prima facie case. Accordingly, neither the allegations mentioned in
footnote 2 nor the allegations mentioned in this footnote are currently before the Board. The
Board's decision herein discusses the facts and issues relevant to allegations 2 and 9 only.
2
the District" addresses were made, without satisfying its bargaining obligation;
(5) failing/refusing to provide relevant and necessary information relating to a promotional
hiring; (6) refusing to promote an employee in retaliation for his protected conduct;
(7) interfering with employees' exercise
of
rights by stating that it was not "wise" to represent
mPmh"'r" <ePPlr,ng tr. nrr.motP to management
pos1't1'ons·
(8)	\ 	harga1
nincr
tr.
imn~c,c,p
~
nr,n-
mandatory subject
of
bargaining; and (9) eliminating union access rights and the "Union Time
Bank" in retaliation for protected conduct.2 The Board agent determined that allegations 1, 2,
3, 5, 8 and 9 failed to state a prima facie case and issued a partial dismissal
of
these
allegations.3
""
.1..1.v""'
v .._,...,....,.u
•.
.1..1.J..	
'-'
.t'J..'-'.1.
.L	
"...,	
,	
,._,	
.1..
.1...1. b 	'-'
.,,.
....
.._
...
1:"'_._,._....,
-
.a..1,.'--'.1..L
The Board has reviewed the entire record in this matter. Based on the Board's review
and in view
of
the relevant law, the Board reverses the partial dismissal
of
the charge
and
directs that a complaint be issued for the reasons discussed below.
BACKGROUND
Charge Allegations Regarding Union Access
Local 3399 is the exclusive representative
of
the fire suppression and prevention
bargaining unit within the District. Local 3399 and the District entered into a
Memorandu...111
of
Understanding (MOU) effective July
1,
2006 through June 30, 2010. The MOU provision at
issue here is Section 20-2, which states in full:
Station Coverage During Union Meetings - The District shall
allow the union president or his representative to move his engine
to i.. 	station	. 	i..
	Lr	
tne	' 	meeting.	.	
..t1.1s	
·•1'	
t.ue 	1101u1ng	
TT'
	••	
'b	
station
vv111
oe co·verea 	y
an additional on-duty crew. The president or his representative
T The Board agent directed the issuance
of
a complaint based on allegations 4, 6 and 7.
3 Local 3 399 did not appeal the Board agent's determination that allegations 1, 3, 5
and 8 failed to state a prima facie case. Accordingly, neither the allegations mentioned in
footnote 2 nor the allegations mentioned in this footnote are currently before the Board. The
Board's decision herein discusses the facts and issues relevant to allegations 2 and 9 only.

shall make prior notification to the Duty Chief, and the Duty
Chief shall make the necessary arrangements of moving
personnel, engines or providing coverage. The Duty Chief can
make a determination that emergency situations or operational
needs override the ability to provide coverage.
An example of some of the scenarios is as follows: Assuming
that the meeting was held at Station 32, due to the short distance
and acceptable response times, station 31 and 33 will be allowed
to attend unless prior commitments have been made. Station 31
and 33's area shall be covered from Station 32 by the respective
engines or cover engines. The station 32 or station 33 crew shall
provide the coverage if the union president or his/her
representative is on duty at station 34 or station 36."
The parties applied Section 20-2 to permit Local 3399 to hold union meetings at fire
stations and to permit on-duty personnel to participate. On June 10, 2010, the District's Board
of Directors (board) met with the Fire Chief and decided in closed session to remove
Section 20-2 from the MOU. By memorandum dated June 14, 2010, addressed to fire engineer
and Union President, Derek Nichols (Nichols) , Fire Chief Stephen Mayotte (Fire Chief)
proposed the elimination of Section 20-2:
Continuing to utilize District Facilities for Union Meetings and
allowing on-duty crews to attend Union Meetings, can no longer
be considered beneficial to the best interests of the District or the
constituents
on-duty personnel to participate.
Under this section of the MOU, Local 3399 was allowed to hold union meetings in the
morning at shift change time. There were three shifts: the off-duty shift, the off-going shift
and the oncoming shift. Holding meetings early in the morning at a District fire station at or
near shift change time allowed as many members as possible to attend. Both the off-duty and
off-going shifts could attend as they were not on duty, and the oncoming shift could attend as
their duties permitted.
Nichols served as union president from January to December 2010.
3
shall make prior notification
to
the Duty Chief, and the Duty
Chief shall make the necessary arrangements
of
moving
personnel, engines or providing coverage. The Duty Chief can
make a determination that emergency situations or operational
needs override the ability to provide coverage.
An example
of
some
of
the scenarios is as follows: 	Assuming
that the meeting was held at Station 32, due to the short distance
and acceptable response times, station
31
and
33
will be allowed
to attend unless prior commitments have been made. Station
31
and 33's area shall be covered from Station 32 by the respective
engines or cover engines. The station 32 or station
33
crew shall
provide the coverage
if
the union president or his/her
representative is on duty at station 34 or station 36.[
41
The parties applied Section 20-2 to permit Local 3399 to hold union meetings at fire
stations and to permit on-duty personnel to participate. On June 10, 2010, the District's Board
of
Directors (board) met with the Fire Chief and decided in closed session to remove
Section 20-2 from the MOU. By memorandum dated June 14, 2010, addressed to fire engineer
and Union President, Derek Nichols (Nichols)5, Fire Chief Stephen Mayotte (Fire Chief)
proposed the elimination
of
Section 20-2:
Continuing to utilize District Facilities for Union Meetings and
allowing on-duty crews to attend Union Meetings, can no longer
be considered beneficial to the best interests
of
the District or the
constituents we serve.	
\Ve
serve.
The District is proposing to eliminate Section 20-2
of
the
Memorandum
of
Understanding, no longer allowing Union
Meetings to be held at District Facilities and no longer allowing
The District is proposing to eliminate Section 20-2 of the
Memorandum of Understanding, no longer allowing Union
Meetings to be held at District Facilities and no longer allowing
on-duty personnel to participate.
* Under this section of the MOU, Local 3399 was allowed to hold union meetings in the
morning at shift change time. There were 	shifts: the off-duty shift, the off-going shift
and the oncoming shift. Holding meetings early in the morning at a District fire station at or
near shift change time allowed as many members as possible to attend. Both the off-duty and
off-going shifts could attend as they were not on duty, and the oncoming shift could attend as
their duties permitted.
5 Nichols served as union president from January to December 2010.
3

In order to facilitate a location where Union Meetings may be
held, President Brown has offered to discuss the use of the
"Union Hall" for future meetings.
I would like to schedule a meeting this week so we can meet and
confer per Section 2-4 of the Memorandum of Understanding.
Please contact me at your convenience in order to establish a
meeting time.
Thank you.
On July 6, 2010, the Fire Chief and all five members of the District board met with
Nichols and fire captain and union negotiation team member, Rick Bussell (Bussell) to discuss
the District's proposal. When asked why he was proposing to eliminate Section 20-2, the Fire
Chief responded that it did not foster good employer-employee relations. When asked to
confirm whether he was referring to three then recently filed grievances, the Fire Chief
responded, "Uh . . . ya." Nichols informed the Fire Chief that Local 3399 did not agree to
removal of Section 20-2 from the MOU.
On July 7, 2010, Nichols sent the Fire Chief an e-mail summarizing the meeting.
Nichols wrote, in pertinent part:
All five District Board members along with yourself . .
overwhelmingly agreed that it was no longer beneficial to the best
interest of the District, because of District / employee relations,
pertaining to the 3 current individual grievances, to allow on duty
Union personnel to attend union meetings and the meetings can
no longer be held at District Facilities. You also stated that if the
relationship between the Board and the Union improve [sic] that
you would reinstate Section 20-2 back into the MOU. You
concluded the meeting by stating that this action would be carried
out under the operational need clause with in [sic] our MOU
despite our opposition.
Although we honored the change at our Union meeting today I
am not sure what the next step is for the removal of Section 20-2
and how we inform the members of the change? If the Section is
removed by a side letter we would like to include the statement
that says "if the district / employee relations improves, the
4
In order to facilitate a location where Union Meetings may be
held, President Brown has offered to discuss the use
of
the
"Union Hall" for future meetings.
I would like to schedule a meeting this week so we can meet and
confer per Section 2-4
of
the Memorandum
of
Understanding.
Please contact me at your convenience in order to establish a
meeting time.
Thank you.
On July 6, 2010, the Fire Chief and all five members
of
the District board met
with
Nichols and fire captain and union negotiation team member, Rick Bussell (Bussell) to discuss
the District's proposal. \1
/hen
asked
vvhy
he ,vas proposing to eliminate Section 20-2, the Fire
Chief
responded that it did not foster good employer-employee relations. When asked to
confirm whether he was referring to three then recently filed grievances, the Fire
Chief
responded, "Uh
...
ya." Nichols informed the Fire Chief that Local 3399 did not agree to
removal
of
Section 20-2 from the MOU.
On July 7, 2010, Nichols sent the Fire Chief an e-mail summarizing the meeting.
Nichols wrote, in pertinent part:
All five District Board members along with yourself
...
overwhelmingly agreed that it was no longer beneficial to the best
interest
of
the District, because
of
District / employee relations,
pertaining to the 3 current individual grievances, to allow on duty
Union personnel to attend union meetings and the meetings can
no longer be held at District Facilities. You also stated that
if
the
relationship between the Board and the Union improve [sic] that
you would reinstate Section 20-2 back into the MOU. You
concluded the meeting by stating that this action vvould be carried
out under the operational need clause with in [sic] our MOU
despite our opposition.
Although we honored the change at our Union meeting today I
am not sure what the next step is for the removal of Section 20-2
and how we inform the members of the change? If the Section is
removed by a side letter we would like to include the statement
that says "if the district / employee relations improves, the
4

District would be willing to reinstate Section 20-2 into the 2006-
2010 MOU.["]
The Fire Chief then clarified in an e-mail dated July 8, 2010, that "[ijt's the totality of
the situation including employer-employee relations which led the District to make the
decision." The Fire Chief also replied that a side letter might work or because the parties were
in negotiations over a successor agreement, a "re-write of the section is easily achieved." The
District never proposed a side letter nor offered a rewrite of Section 20-2.
Nichols replied to the Fire Chief's e-mail on July 8, 2010, as follows:
We obviously disagree on the conversation that took place at the
Meet & Confer meeting, so maybe we can agree in the future that
we either record the meetings or include the secretary to take
minutes and mutually agree on the verbiage before we adjourn.
April 16" was a date that the District Negotiators set as the last
day for the District and the Union to bring new items to the table
for the current negotiations. Apparently the District did not feel
Section 20-2 was a concern at that time because they did not
request that item be included in the current negotiations. So in
negotiating in good faith we can not just re-write a section of the
MOU without these negotiations.
Since this removal of the Section has already been enforced at
our July 7" meeting we feel to protect the interests of our
members we need some sort of legal document signed by all the
persons involved explaining the reason for the removal and by
what authority they had for the removal.
The Fire Chief responded by e-mail on July 8, 2010, which states in pertinent part:
This had nothing to do with the regular on-going negotiations
taking place between 3399 and 911 Consulting Group. I was
aware of the restrictions regarding new items not being brought
forward after your April meeting, so there was no reason to
involve 911 Consulting Group at this late date. The MOU allows
for this type of activity and we're attempting to follow that
process (Section 2[-]4).
This is considered an operational need for the District and is
being handled that way. I can draft a letter of agreement for
signatures from both 3399 and the District, as needed.
5
District would be willing to reinstate Section 20-2 into the 2006-
2010 MOU.["]
The Fire Chief then clarified in an e-mail dated July 8, 2010, that "[i]t's the totality of
the situation including employer-employee relations which led the District to make the
decision." The Fire Chief also replied that a side letter might work or because the parties were
in negotiations over a successor agreement, a "re-write of the section is easily achieved." The
District never proposed a side letter nor offered a rewrite of Section 20-2.
Nichols replied to the Fire Chiefs e-mail on July 8, 2010, as follows:
We obviously disagree on the conversation that took place at the
:t-,1eet & Confer meeting, so maybe we can agree in the future that
we either record the meetings or include the secretary to take
minutes and mutually agree on the verbiage before we adjourn.
April 16 th was a date that the District Negotiators set as the last
day for the District and the Union to bring new items to the table
for the current negotiations. Apparently the District did not feel
Section 20-2 was a concern at that time because they did not
request that item be included in the current negotiations. So in
negotiating in good faith we can not just re-write a section of the
MOU without these negotiations.
Since this removal of the Section has already been enforced at
our July ih meeting we feel to protect the interests of our
members we need some sort of legal document signed by all the
persons involved explaining the reason for the removal and by
what authority they had for the removal.
The Fire Chiefresponded by e-mail on July 8, 2010, which states in pertinent part:
This had nothing to do with the regular on-going negotiations
taking place between 3399 and 911 Consulting Group. I was
restrictions regarding nev.; items not beir1g brought
forward after your April meeting, so there was no reason to
involve 911 Consulting Group at this late date. The MOU allows
for this type of activity and we're attempting to follow that
process (Section 2[-]4).
This is considered an operational need for the District and is
being handled that way. 	I can draft a letter of agreement for
signatures from both 3399 and the District, as needed.
5

In Nichol's final reply to the Fire Chief in this e-mail string on July 8, 2010, Nichols
wrote:
Sense [sic] the MOU is a legal contract I think we need some sort
of signed documentation that states what the operational need
was to remove Section 20-2 from our contract. I don't think a
letter of agreement is the answer, sense [sic] we did not agree to
the removal and I wouldn't be able to find any one to sign it
anyway.
By letter dated July 12, 2010, addressed to Nichols, the Fire Chief communicated
management's decision regarding Section 20-2 as follows:
In order to meet the current operational needs of the District and
in accordance with MOU Article II, Sections 2-3 and 2-4,(6]
Management has decided to eliminate the use of District
Facilities for Union Meetings. In addition, on-duty personnel
will no longer be allowed to attend Union Meetings.
The decision to eliminate the practice regarding Union Meetings
comes from the ever-increasing work load responding to
emergency incidents, training, prevention and public service
events, etc. The change is being made in an effort to restore lost
work time, ensure adequate emergency response coverage and
potentially see an improvement in employer-employee relations.
S
The Union recognizes the need for the District to exercise its
judgment in managing its operations, and agrees that the District
shall have the right to regulate the use of all equipment and other
property of the District, establish new, or close down stations, or
departments thereof, or expand, reduce, alter or combine any job
or department, operation or function, determine number and
location of stations and the work to be done, methods or
procedures used in performance of work, complement of
employees needed or assigned to a particular function, and to
maintain discipline among i 	mployees.
Section 2-4 of the MOU provides:
The District and Union representatives will meet and confer at
times mutually agreed by the parties for the purpose of discussing
changes that impact this Memorandum of Understanding and are
being contemplated by the District that may affect the employees.
6
In Nichol's final reply to the Fire Chief in this e-mail string on July 8, 2010, Nichols
wrote:
Sense [sic] the MOU is a legal contract I think we need some sort
of signed documentation that states what the operational need
was to remove Section 20-2 from our contract. I don't think a
letter of agreement is the answer, sense [sic] we did not agree to
the removal and I wouldn't be able to find any one to sign it
anyway.
By letter dated July 12, 2010, addressed to Nichols, the Fire Chief communicated
management's decision regarding Section 20-2 as follows:
In order to meet the current operational needs of the District and
61	in accordance with MOU Article II, Sections 2-3 and 2-4,(
Management has decided to eliminate the use of District
Facilities for Union Meetings. In addition, on-duty personnel
will no longer be allowed to attend Union Meetings.
The decision to eliminate the practice regarding Union Meetings
comes from the ever-increasing work load responding to
emergency incidents, training, prevention and public service
events, etc. The change is being made in an effort to restore lost
work time, ensure adequate emergency response coverage and
potentially see an improvement in employer-employee relations.
6 ection 2-3 of the MOU provides:	Section 2-3 of the MOU provides:
The Union recognizes the need for the District to exercise its
judgment in managing its operations, and agrees that the District
shall have the right to regulate the use of all equipment and other
property of the District, establish new, or close down stations, or
departments thereof, or expand, reduce, alter or combine any job
or department, operation or function, determine number and
location of stations and the work to be done, methods or
procedures 	in performance of vvork, complement of
employees needed or assigned to a particular function, and to
maintain discipline among ts eemployees.
Section 2-4 of the MOU provides:
The District and Union representatives will meet and confer at
times mutually agreed by the parties for the purpose of discussing
changes that impact this Memorandum of Understanding and are
being contemplated by the District that may affect the employees.
6

According to MOU Article II, Section 2-3, the District has the
right 'to exercise its judgment in managing its operations, and
agrees that the District shall have the right to regulate the use of
all equipment and other property of the District'.
The District has followed MOU Article II, Section 2-4 and held a
meet and confer on Tuesday, July 6, 2010, at 10[:]00 hours.
Thank you for your cooperation, please contact me with questions
regarding this issue.
On August 12, 2010, Nichols and union Vice-President Matt Criswell (Criswell) met
with the District board in closed session to complain that Section 20-2 was arbitrarily removed
from the MOU. Directors Richard Heckendorf and Armando Garcia responded that the MOU
was not a binding contract, only an agreement. District board President RaeLene Brown
(Brown) assured Nichols and Criswell that the District board would look into the matter and
get back to them. That never happened.
Meanwhile, the District and Local 3399 had begun negotiations over a successor
agreement. ' At no time during these negotiations did the District make a proposal that
Section 20-2 be eliminated from the successor agreement. The parties ultimately reached a
TA, which modified Section 4.4 of the MOU regarding "Step Increase upon Promotion,"
included a Side Agreement regarding in-house promotions, but otherwise continued in effect
"[a]ll other terms and conditions of the July 1, 2006-June 30, 2010 Memorandum of
Understanding." T 	District Board approved the TA on September 9, 2010.
The first meeting to negotiate a successor agreement occurred on March 5, 2010. The
parties continued to meet through the months of March, April, May, June and July. At the
July 9, 2010, negotiation session, the District declared impasse. After the parties were
unsuccessful in setting up an impasse meeting, by letter of July 29, 2010, the District presented
its last, best and final offer. The parties resumed negotiations and on August 24, 2010, the
parties reached a tentative agreement (TA) for the 18-month term covering July 1, 2010
through December 31, 2011.
7
According to MOU Article II, Section 2-3, the District has the
right 'to exercise its judgment in managing its operations, and
agrees that the District shall have the right to regulate the use
of
all equipment and other property
of
the District'.
The District has followed MOU Article II, Section 2-4 and held a
meet and confer on Tuesday, July 6, 2010, at 10[:]00 hours.
Thank you for your cooperation, please contact me with questions
regarding this issue.
On August 12, 2010, Nichols and union Vice-President Matt Criswell (Criswell) met
with the District board in closed session to complain that Section 20-2 was arbitrarily removed
from the l',10U. Directors Richard Heckendorf and Armando Garcia responded that the
MOU
was not a binding contract, only an agreement. District board President RaeLene Brown
(Brown) assured Nichols and Criswell that the District board would look into the matter and
get back to them. That never happened.
Meanwhile, the District and Local 3399 had begun negotiations over a successor
agreement. 7 At no time during these negotiations did the District make a proposal that
Section 20-2 be eliminated from the successor agreement. The parties ultimately reached a
TA 	u,h;l'
h
mrvl1'f,,,,-l
Q,,,..t,on 4 4 r.f the MOU regard1'ng "St""p In°r,,ase UP"" Prr.mr.t,on "
included a Side Agreement regarding in-house promotions, but otherwise continued in effect
"[a]ll other terms and conditions
of
the July
1,
2006-June 30, 2010 Memorandum
of
Understanding." 	District Board approved the TA on September 9, 2010.	he
..L.l.Ji.,VV.1..1..l.VJ..l..l..l.V'-,1,..1..J.V\..I-UVV.1.	
.I.•	
V	
J..	
V	
VV	
VJ..1...L.l.V.1..1.Vl-.1.
.1..1..,
The first meeting to negotiate a successor agreement occurred on March 5, 2010. The	"
parties continued to meet through the months
of
March, April, May, June and July.
July 9, 2010, negotiation session, the District declared impasse. After the parties were
unsuccessful in setting up an impasse meeting, by letter of July 29, 20 l 0, the District presented
its last, best and final offer. The parties resumed negotiations and on August 24, 2010, the
parties reached a tentative agreement (TA) for the 18-month term covering July 1, 2010
through December 31, 2011.
7

Because the TA contained no changes to Section 20-2, Local 3399 at first believed that
Section 20-2 was still a part of the parties' agreement. On November 10, 2010, the Fire Chief
presented the successor agreement to Local 3399 for signature before taking it to be printed.
Upon review of the document, Local 3399 discovered that Section 20-2 had been physically
deleted from the agreement." Local 3399 asked the Fire Chief to put Section 20-2 back into the
agreement because it had not been negotiated out. The Fire Chief refused. Local 3399 then
refused to sign the agreement unless Section 20-2 was reinserted back into the agreement. In
response, despite having reached a TA, the District threatened imposition of terms and
conditions was placed on the agenda for the December 9, 2010, District board meeting. After a
presentation by Local 3399's attorney objecting to the proposed District board action and a
closed session discussion, the District board announced that it was temporarily postponing
imposition.
Since July 2010, Local 3399 has not been allowed to hold union meetings at the
District's fire stations. Nor have on-duty personnel been allowed to participate.
Charge Allegations Regarding the Union Time Bank
MOU Section 23-2 entitled Union Time Bank provides:
Union Time Bank was developed to allow members to attend
Union business without placing a financial burden upon the
District. Union agrees to donate one hour of vacation time per
month to the time bank from each of its members. Use of the
time bank is established through District Policy with agreement
of the Union.
n a version of the successor agreement, identified in the footer of the document as
"2010 - 2011 M.O.U. Amended 10-14-2010," Section 20-2 does not exist.
8
Because the TA contained no changes to Section 20-2, Local 3399 at first believed that
Section 20-2 was still a part of the parties' agreement. On November 10, 2010, the Fire Chief
presented the successor agreement to Local 3399 for signature before taking it to be printed.
Upon review of the document, Local 3399 discovered that Section 20-2 had been physically
deleted from the agreement. 8 Local 3399 asked the Fire Chief to put Section 20-2 back into the
agreement because it had not been negotiated out. The Fire Chiefrefused. Local 3399 then
refused to sign the agreement unless Section 20-2 was reinserted back into the agreement. 	In
response, despite having reached a TA, the District threatened imposition of terms and
conditions of employment including deletion of Section 20-2. Imposition of terms and
conditions was placed on the agenda for the December 9, 2010, District board meeting. After a
presentation by Local 3399's attorney objecting to the proposed District board action and a
closed session discussion, the District board announced that it was temporarily postponing
imposition.
Since July 2010, Local 3399 has not been allowed to hold union meetings at the
District's fire stations. Nor have on-duty personnel been allowed to participate.
Charge Allegations Regarding the Union Time Bank
MOU Section 23-2 entitled Union Time Bank provides:
Union Time Bank was developed to allow members to attend
Union business without placing a financial burden upon the
District. Union agrees to donate one hour of vacation time per
month to the time bank from each of its members. Use of the
time bank is established through District Policy with agreement
of the Union.
8
I In a version of the successor agreement, identified in the footer of the document as
"2010 - 2011 M.O.U. Amended 10-14-2010," Section 20-2 does not exist.

The District Policy regarding the Union Time Bank referred to in Section 23-2 is memorialized
as Article C-54 in a memorandum dated May 14, 2010." Under Article C-54, each member can
donate one hour of vacation leave per month to the Union Time Bank to be used for "meeting
and conferring, handling grievances, representing members and other legitimate Association
business."
On November 11, 2010, Nichols and Bussell submitted "Time Off Request Form[s]"
seeking permission to use four hours of leave from the Union Time Bank in order to attend a
Riverbank city council meeting on November 22, 2010." District board President Brown was
attend.
By memorandum dated November 18, 2010, the Fire Chief denied Nichol's and
Bussell's time-off requests "due to the proposed need not falling under legitimate Association
business as per policy." By memorandum dated November 23, 2010, Nichols and Bussell filed
a "Union Time Bank Denial - Step 2 Grievance" with Battalion Chief, Mike Wapnowski
(Wapnowski or Battalion Chief). By memorandum dated November 29, 2010, Wapnowski
denied the grievance. By memorandum dated December 13, 2010 to the Fire Chief, Nichols
and Bussell elevated their grievance to Step 3. The Fire Chief's denial of their grievance by
memorandum dated December 14, 2010, stated in pertinent part:
Since the use of the release time bank will continue to be a
contentious issue between the District and the Local, I can't
justify spending any more staff time arguing over the issue
following shall occur immediately:
" The May 14, 2010, memorandum superceded a Union Time Bank policy statement of
September 9, 2008.
10 Riverbank is one of the jurisdictions served by the District.
9
The District Policy regarding the Union Time Bank referred to in Section 23-2 is memorialized
as Article C-54 in a memorandum dated May 14, 2010.9 Under Article C-54, each member can
donate one hour
of
vacation leave per month to the Union Time Bank to be used for "meeting
and conferring, handling grievances, representing members and other legitimate Association
business."
On November 11, 2010, Nichols and Bussell submitted "Time Off Request Form[s]"
seeking permission to use four hours
of
leave from the Union Time Bank in order to attend a
Riverbank city council meeting on November 22, 2010.
10
District board President Brown was
to give a "State of the District" address. In the past, the District had encouraged employees to
attend.
By memorandum dated November 18, 2010, the Fire Chief denied Nichol's and
Bussell' s time-off requests "due to the proposed need not falling under legitimate Association
business as per policy." By memorandum dated November 23, 2010, Nichols and Bussell filed
a "Union Time Bank Denial - Step 2 Grievance" with Battalion Chief, Mike Wapnowski
(Wapnowski or Battalion Chief). By memorandum dated November 29, 2010, Wapnowski
denied the grievance. By memorandum dated December 13, 2010 to the Fire Chief, Nichols
and Bussell elevated their grievance to Step 3. The Fire Chief's denial
of
their grievance by
memorandum dated December 14, 20 l 0, stated in pertinent part:
Since the use
of
the release time bank will continue to be a
contentious issue between the District and the Local, I can't
justify spending any more staff time arguing over the issue.. The
following shall occur immediately:
9 The May 14, 2010, memorandum superceded a Union Time Bank policy statement of
September 9, 2008.
10 Riverbank is one of the jurisdictions served by the District.
9

The Union Firefighters Release Time Bank will be discontinued
and dissolved. The time will be returned to each contributing
employee per policy.
At Step 4 of the grievance process, the District board President upheld the Fire Chief's denial
by memorandum dated December 20, 2010, which stated in pertinent part:
In our opinion, the [District] Board wishes to remove all sources
of conflict with Local 3399 and therefore does not wish to
continue a policy that brings discord between us.
By memorandum dated December 23, 2010, Nichols and Bussell informed the District board
President that Local 3399 intended to move their grievance to Step 5 of the grievance process
In response to an e-mail dated January 5, 2011, from fire engineer and new union
president, Nicholas Meigs (Meigs), requesting leave from the Union Time Bank, the Fire Chief
responded by e-mail, stating "[the constructive end served by the elimination of the time
release bank is no further misunderstandings, grievances or complaints regarding its use." The
Fire Chief's e-mail goes on to state, "At the time I thought the release bank was a good idea, in
concept I still do." The e-mail concludes, in pertinent part:
Employer/employee relations will continue to struggle as long as
the only way we communicate is via the grievance procedure
and/or through legal counsel. The District remains reactionary to
these types of communications and has no alternative than to
respond quickly and decisively in these situations. The District
will continue to reduce the opportunities for grievances,
complaints or disagreements whenever possible. Speaking for
Management and the District Board, if Labor is interested in
improving relations, then returning to open discussions instead of
grievances and legal actions is the solution.
DECISION OF THE BOARD AGENT
Regarding the unilateral change allegations discussed in Section II of the partial
dismissal, the Board agent acknowledged that union access rights are matters within the scope
of representation, citing Woodland Joint Unified School District (1987) PERB Decision
10
The Union Firefighters Release Time Bank will be discontinued
and dissolved. The time will be returned to each contributing
employee per policy.
At Step 4 of the grievance process, the District board President upheld the Fire Chiefs denial
by memorandum dated December 20, 2010, which stated in pertinent part:
In our opinion, the [District] Board wishes to remove all sources
of conflict with Locai 3399 and therefore does not wish to
continue a policy that brings discord between us.
By memorandum dated December 23, 2010, Nichols and Bussell informed the District board
President that Local 3399 intended to move their grievance to Step 5 of the grievance process
(adjustment board).
In response to an e-mail dated January 5, 2011, from fire engineer and new union
president, Nicholas Meigs (Meigs), requesting leave from the Union Time Bank, the Fire Chief
responded by e-mail, stating "[t]he constructive end served by the elimination of the time
release bank is no further misunderstandings, grievances or complaints regarding its use." The
Fire Chiefs e-mail goes on to state, "At the time I thought the release bank was a good idea, in
concept I still do." The e-mail concludes, in pertinent part:
Employer/employee relations will continue to struggle as long as
the only way we communicate is via the grievance procedure
and/or through legal counsel. The District remains reactionary to
these types of communications and has no alternative than to
respond quickly and decisively in these situations. The District
will continue to reduce the opportunities for grievances,
complaints or disagreements whenever possible. Speaking for
Management and the District Board, if Labor is interested in
improving relations, then returning to open discussions instead of
grievances and legal actions is the solution.
DECISION OF THE BOARD AGENT
Regarding the unilateral change allegations discussed in Section II of the partial
dismissal, the Board agent acknowledged that union access rights are matters within the scope
of representation, citing Woodland Joint Unified School District ( 1987) PERB Decision
10

No. 628. The Board agent then concluded that there are no facts in the record to show that the
District implemented a policy or modified a past practice to eliminate union access rights
under Section 20-2. The Board agent reasoned that Section 20-2 was still in effect because the
District board approved the TA, which purportedly continued in effect the terms and conditions
of the expired MOU, and never adopted an agreement that excluded the provision at issue. The
Board agent also stated that the charge allegations were deficient from a pleading standpoint in
their failure to describe whether Local 3399 made specific requests to use District facilities to
conduct union meetings and, if so, the dates the requests were made, the individuals who made
the requests, the individuals who were denied, etc., citing State of California (Department of
Food and Agriculture) (1994) PERB Decision No. 1071-S (Food and Agriculture).
Regarding the retaliation allegations discussed in Section V of the partial dismissal, the
Board agent confined the analysis factually to the District's removal of Section 20-2 from the
MOU."The Board agent viewed the charge as alleging discrimination between groups of
employees based on one group's protected activity. The Board agent found that the charge did
not allege with specificity when the grievances were filed and whether the Fire Chief was
aware of them. The Board agent then concluded that the charge failed to state a prima facie
case under Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d
416 (Campbell), as discussed in State of California (Department of Personnel Administration)
(2011) PERB Decision No. 2106a-S, because it was not predicated on differential treatment
between two groups of employees.
" s discussed below, the charge, as amended, makes two retaliation claims, one based
on removal of Section 20-2 and a second based on elimination of the Union Time Bank. The
Board agent appears to have overlooked the second basis.
11
No. 628. The Board agent then concluded that there are no facts in the record to show that the
District implemented a policy or modified a past practice to eliminate union access rights
under Section 20-2. The Board agent reasoned that Section 20-2 was still in effect because the
District board approved the TA, which purportedly continued in effect the terms and conditions
of the expired MOU, and never adopted an agreement that excluded the provision at issue. 	The
Board agent also stated that the charge allegations were deficient from a pleading standpoint in
their failure to describe whether Local 3399 made specific requests to use District facilities to
conduct union meetings and, if so, the dates the requests were made, the individuals who made
the requests, the individuals who were denied, etc., citing State of California (Department of
Food and Agriculture) (1994) PERB Decision No. 1071-S (Food and Agriculture).
Regarding the retaliation allegations discussed in Section V of the partial dismissal, the
Board agent confined the analysis factually to the District's removal of Section 20-2 from the
MOU.11 The Board agent viewed the charge as alleging discrimination between groups of
employees based on one group's protected activity. The Board agent found that the charge did
not allege with specificity when the grievances were filed and whether the Fire Chief was
aware of them. The Board agent then concluded that the charge failed to state a prima facie
case under CampbellMunicipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d
416 (Campbell), as discussed in State of California (Department of Personnel Administration)
(2011) PERB Decision No. 2106a-S, because it was not predicated on differential treatment
between two groups of employees.
11
A As discussed below, the charge, as amended, makes two retaliation claims, one based
on removal of Section 20-2 and a second based on elimination of the Union Time Bank. 	The
Board agent appears to have overlooked the second basis.

DISCUSSION
A. 	Unilateral Change
The issue presented is whether Local 3399 has sufficiently alleged that the District's
conduct relative to Section 20-2 constitutes a prima facie violation of the rules prohibiting
unilateral change. MMBA section 3505 provides in pertinent part:
The governing body of a public agency . . . shall meet and confer
in good faith regarding wages, hours, and other terms and
conditions of employment . . . and shall consider fully such
presentations as are made by the employee organization on behalf
of its members prior to arriving at a determination of policy or
course of action.
'Meet and confer in good faith' means that a public agency, . . .
and representatives of recognized employee organizations, shall
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.
PERB Regulation 32603(c) makes it an unfair practice under the MMBA for a public agency
to "[refuse or fail to meet and confer in good faith with an exclusive representative as required
by Government Code section 3505 . . . ."13
In determining whether a party has violated MMBA section 3505 and PERB
Regulation 32603(c) by failing to meet and confer in good faith, 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. (Omnitrans (2009) PERB Decision
No. 2030-M (Omnitrans).) A "per se" violation of the duty to bargain in good faith will be
12 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq
13 Under MMBA section 3509(b), a complaint alleging any violation of the MMBA
"shall be processed as an unfair practice charge" by the Board.
12
DISCUSSION
A. 	Unilateral Change
The issue presented is whether Local 3399 has sufficiently alleged that the District's
conduct relative to Section 20-2 constitutes a prima facie violation of the rules prohibiting
unilateral change. MMBA section 3505 provides in pertinent part:
The governing body of a public agency ... shall meet and confer
in good faith regarding wages, hours, and other terms and
conditions of employment ... and shall consider fully such
presentations as are made by the employee organization on behalf
of its members prior to arriving at a determination of policy or
course of action.
'Meet and confer in good faith' means that a public agency, ...
and representatives of recognized employee organizations, shall
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.
PERB Regulation 32603(c)12 makes it an unfair practice under the MMBA for a public agency
to "[r]efuse or fail to meet and confer in good faith with an exclusive representative as required
by Government Code section 3505 .... " 13
In determining whether a party has violated MMBA section 3505 and PERB
Regulation 32603(c) by failing to meet and confer in good faith, 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. ( Ornnitrans (2009) PEPill Decision
No. 2030-M (Omnitrans).) A "per se" violation of the duty to bargain in good faith will
12 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
13 Under MMBA section 3509(b), a complaint alleging any violation of the MMBA
"shall be processed as an unfair practice charge" by the Board.
12

found where there has been a unilateral change in the status quo concerning a negotiable
subject of bargaining. (Ibid.)
The right to bargain may be waived only by means of a waiver established by "clear
and unmistakable" language in the contract. (Grossmont Union High School District (1983)
PERB Decision No. 313 (Grossmont); Amador Valley Joint Union High School District (1978)
PERB Decision No. 74 (Amador Valley).) Otherwise, the duty to bargain in good faith over
negotiable matters is continuous and binds both labor and management not only through the
life of the agreement but also during negotiations after the term of the agreement has expired
up to the point of impasse." (California Public Sector Labor Relations (2011) $ 10.03[1]; San
Joaquin County Employees Association v. City of Stockton (1984) 161 Cal.App.3d 813, 819
[while parties are in process of negotiating a new contract, the current contract and its terms
and conditions remain in effect and cannot be altered]; County of Alameda (2006) PERB
Decision No. 1824-M.) Also, offering to negotiate after a unilateral change has already been
imposed does not negate the unlawfulness of the prior conduct because "the employer's fait
accompli thereafter makes impossible the give and take that are the essence of labor
negotiations." (See Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 823
(Vernon Fire Fighters).)
A unilateral change violation will be found if certain criteria are met. Those criteria
are: (1) the employer breached or altered the parties' written agreement or
past practice; (2) such action was taken without giving the other party notice or an opportunity
to bargain over t 	change; (3) the change was not 	an isolated breach of t 	contract,
but amounts to a change in policy (i.e., it has a generalized effect or continuing impact upon
4If impasse is subsequently broken, the bargaining obligation revives. (Public
Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 899.)
13
found where there has been a unilateral change in the status quo concerning a negotiable
subject of bargaining. (Ibid.)
The right to bargain may be waived only by means of a waiver established by "clear
and unmistakable" language in the contract. (Grossmont Union High School District (1983)
PERB Decision No. 313 (Grossmont); Amador Valley Joint Union High School District (1978)
PERB Decision No. 74 (Amador Valley).) 	Otherwise, the duty to bargain in good faith over
negotiable matters is continuous and binds both labor and management not only through the
life of the agreement but also during negotiations after the term of the agreement has expired
up to the point of impasse. 14 (California Public Sector Labor Relations (2011) § 10.03[1]; San
Joaquin County Employees Association v. City of Stockton (1984) 161 Cal.App.3d 813, 819
[while parties are in process of negotiating a new contract, the current contract and its terms
and conditions remain in effect and cannot be altered]; County of Alameda (2006) PERB
Decision No. 1824-M.) Also, offering to negotiate after a unilateral change has already been
imposed does.not negate the unlawfulness of the prior conduct because "the employer's/ait
accompli thereafter makes impossible the give and take that are the essence of labor
negotiations." (See Vernon Fire Fighters v. City of Vernon (1980) l 07 Cal.App.3d 802, 823
(Vernon Fire Fighters).)
A unilateral change violation will be found if certain criteria are met. Those criteria
are: 	(1) the employer breached or altered the parties' written agreement orits oown	wn established	established
past practice;	· 	'-Lj	r~' such• act10n	· 	was tal(en	1 	without	• • 	g1vmg	• • 	ti1e	1 	ot11cr	1 	party notice	• 	or an opportumty	•
to bargain over he change; (3) the change was not merely an isolated breach of he contract,
but amounts to a change in policy (i.e., it has a generalized effect or continuing impact upon
13
1 	If impasse is subsequently broken, the bargaining obligation revives. (Public
Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 899.)

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; West Side
Healthcare District (2010) PERB Decision No. 2144-M; Omnitrans.)
Taking the last criterion first, as the Board agent in this matter correctly observed, an
employee organization's access to a public employer's facilities is a matter within the scope of
representation under MMBA section 3504." As the Board in Omnitrans stated:
Considering the language of the MMBA in light of the well-
established implied right of access grounded in the non-
interference and non-discrimination provisions of other labor
relations statutes, we hold that the MMBA grants a recognized
employee organization a right of access to a public agency's
facilities for the purpose of communicating with employees
subject to reasonable regulation by the public agency.
Accordingly, we find that Section 20-2 implicates a negotiable matter within the scope of
representation. The District's assertion that the elimination of Section 20-2 constitutes a
managerial decision pertaining to coverage of response areas that is outside the scope of
representation is, therefore, rejected.
To the extent the District is arguing that Local 3399 waived its statutory bargaining
rights by agreeing to the management rights clause in Section 2-3 of the MOU, the District
is mistaken. Waiver of the statutory right to meet and confer must be established by "clear
and unmistakable" language. (Grossmont; Amador Valley.) Moreover, even if Section 2-3
constituted a clear and unmistakable waiver of Local 3399's statutory bargaining rights, such a
MMBA section 3504 defines "scope of representation" to include "all matters
relating to employment conditions and employer-employee relations, including, but not limited
to, wages, hours, and other terms and conditions of employment, except, however, that the
scope of representation shall not include consideration of the merits, necessity, or organization
of any service or activity provided by law or executive order." (See also MMBA $ 3507, subd.
(a)(6) [allowing a public agency to adopt "reasonable rules and regulations" for employee
organization access to work locations after good faith consultation with employee
organization].)
14
bargaining unit members' terms and conditions of employment); and (4) the change in policy
concerns a matter within the scope ofrepresentation. (Vernon Fire Fighters; West Side
Healthcare District (2010) PERB Decision No. 2144-M; Omnitrans.)
Taking the last criterion first, as the Board agent in this matter correctly observed, an
employee organization's access to a public employer's facilities is a matter within the scope of
representation under MMBA section 3504. 15 As the Board in Omnitrans stated:
Considering the language of the MMBA in light of the well-
established implied right of access grounded in the non-
interference and non-discrimination provisions of other labor
relations statutes, we hold that the MMBA grants a recognized
employee organization a right of access to a public agency's
facilities for the purpose of communicating with employees
subject to reasonable regulation by the public agency.
Accordingly, we find that Section 20-2 implicates a negotiable matter within the scope of
representation. The District's assertion that the elimination of Section 20-2 constitutes a
managerial decision pertaining to coverage of response areas that is outside the scope of
representation is, therefore, rejected.
To the extent the District is arguing that Local 3399 waived its statutory bargaining
rights by agreeing to the management rights clause in Section 2-3 of the MOU, the District
is mistaken. Waiver of the statutory right to meet and confer must be established by "clear
and unmistakable" language. (Grossmont; Amador Valley.) Moreover, even if Section 2-3
constituted a clear and unmistakable waiver of Local 3399's statutory bargaining rights, such a
15 MMBA section 3504 defines "scope of representation" to include "all matters
relating to employment conditions and employer-employee relations, including, but not limited
to, wages, hours, and other terms and conditions of employment, except, however, that the
scope of representation shall not include consideration of the merits, necessity, or organization
of any service or activity provided by law or executive order." (See also MMBA § 3507, subd.
(a)(6) [allowing a public agency to adopt "reasonable rules and regulations" for employee
organization access to work locations after good faith consultation with employee
organization].)
14

waiver would not remain in effect beyond the negotiated term of the MOU. (See Antelope
Valley Unified High School District (1998) PERB Decision No. 1287.)
Regarding 	ssue of whether the District's action was taken without giving the other
party notice or an opportunity to bargain, by its letter of June 14, 2010, the District advised
Local 3399 of the "proposed" change and offered to meet and confer. The "meet and confer"
"See, e.g., 1 Witkin, Summary of California Law (9" ed. 1987) Contracts, $$ 806,
p. 726 [if statements or conduct of promisor amount to a repudiation, the injured party may
treat the repudiation as an anticipatory breach].
15
waiver would not remain in effect beyond the negotiated term of the MOU. 	(See Antelope
Valley Unified High School District (1998) PERB Decision No. 1287.)
Regarding the issue of whether the District breached or altered the parties' written	Regarding the issue of whether the District breached or altered the parties' written
agreement or its own established past practice under the first criterion, Local 3399 alleges that	agreement or its own established past practice under the first criterion, Local 3399 alleges that
Section 20-2 was removed from the parties' agreement and that the District has refused to	Section 20-2 was removed from the parties' agreement and that the District has refused to
reinsert it. In fact, in the version of the agreement presented by the District to Local 3399 for	reinsert it. In fact, in the version of the agreement presented by the District to Local 3399 for
signature, Section 20-2 is indeed missing. The District appears to have repudiated this	signature, Section 20-2 is indeed missing. The District appears to have repudiated this
provision of the expired MOU. While the parties disagree as to whether the District had the	provision of the expired MOU. While the parties disagree as to whether the District had the
iight to do so, they appear to agree that Section 20-2 is for all practical purposes not a	right to do so, they appear to agree that Section 20-2 is for all practical purposes not a
provision that the District believes it is bound to follow.	provision that the District believes it is bound to follow.
The Board agent, however, concluded that Section 20-2 is still in effect, reasoning that	The Board agent, however, concluded that Section 20-2 is still in effect, reasoning that
the TA, with few exceptions not relevant here, continued in effect the terms and conditions of	the TA, with few exceptions not relevant here, continued in effect the terms and conditions of
the expired MOU, and that the parties did not adopt a successor agreement that explicitly	the expired MOU, and that the parties did not adopt a successor agreement that explicitly
excludes Section 20-2. The facts, as alleged, however, indicate that Local 3399 has not been	excludes Section 20-2. The facts, as alleged, however, indicate that Local 3399 has not been
allowed to hold meetings at District fire stations pursuant to Section 20-2 since July 2010.	allowed to hold meetings at District fire stations pursuant to Section 20-2 since July 2010.
This allegation is consistent with the District's actions. There is no better illustration of the	This allegation is consistent with the District's actions. There is no better illustration of the
District's act of repudiation than its taking an electronic version of scissors and cutting the	District's act of repudiation than its taking an electronic version of scissors and cutting the
disputed provision right out of the very document intended to memorialize the parties'	disputed provision right out of the very document intended to memorialize the parties'
agreement. 16
agreement. 16
Regarding 	issue of whether the District's action was taken without giving the other	the i
notice or an opportunity to bargain, by its letter of June 14, 2010, the District advised
Local 3399 of the "proposed" change and offered to meet and confer. The "meet and confer"
16 See, e.g., 1 Witkin, Summary of California Law (9 th ed. 1987) Contracts,§§ 806,
p. 726 [if statements or conduct of promisor amount to a repudiation, the injured party may
treat the repudiation as an anticipatory breach].
15

was held on July 6, 2010, and in an e-mail string between Nichols and the Fire Chief
attempting to memorialize what had occurred at this meeting, the Fire Chief stated that
Section 20-2 has "nothing to do with the regular on-going negotiations." Rather, according to
the Fire Chief, "[this is considered an operational need for the District and is being handled
that way." By its letter of July 12, 2010, the District explained that while it believed it was
complying with its meet and confer obligation under Section 2-4 by holding the July 6, 2010,
meeting, its decision to eliminate Section 20-2 was based on Section 2-3, the management
rights clause of the expired MOU.
Regarding the issue of whether the change amounts to a change in policy rather than an
isolated contract breach, a change in policy is one that has a generalized effect or continuing
impact upon bargaining unit members' terms and conditions of employment. (Omnitrans.)
The Board has found a "continuing impact" where the breaching party asserts that the change
was authorized by the collective bargaining agreement. (Ibid.; Fremont Unified School
District (1997) PERB Decision No. 1240.) The District asserts that the elimination of
Section 20-2 was authorized by Section 2-3 of the MOU. Given the continuing impact of the
16
was held on July 6, 2010, and in an e-mail string between Nichols and the Fire Chief
attempting to memorialize what had occurred at this meeting, the Fire Chief stated that
Section 20-2 has "nothing to do with the regular on-going negotiations." Rather, according to
the Fire Chief, "[t]his is considered an operational need for the District and is being handled
that ,vay." By its letter
of
July 12, 2010, the District explained that while it believed it was
complying with its meet and confer obligation under Section 2-4 by holding the July 6, 2010,
meeting, its decision to eliminate Section 20-2. was based on Section 2-3, the management
rights clause
of
the expired MOU.
Under MMBA section 3505, the parties are under mutual obligation, not just to meet
and confer, but to meet and confer in good faith, which includes exchanging information,	and confer, but to meet and confer in good faith, which includes exchanging information,
opinions and proposals and endeavoring to reach agreement on matters within the scope
ofopinions and proposals and endeavoring to reach agreement on matters within the scope of
representation. 	The District asserts that Local 3399 "was afforded proper notice
of
the	representation. The District asserts that Local 3399 "was afforded proper notice of the
District's proposal to remove Section 20-2 and afforded the opportunity to meet and confer	District's proposal to remove Section 20-2 and afforded the opportunity to meet and confer
regarding removal even thought [sic] the District was not required to meet and confer." The	regarding removal even thought [sic] the District was not required to meet and confer." The
District cannot have it both ways. It cannot, on the one hand, profess to be in compliance with	District cannot have it both ways. It cannot, on the one hand, profess to be in compliance with
its bargaining obligations by offering to meet and confer and, on the other, assert that it has noits bargaining obligations by offering to meet and confer and, on the other, assert that it has no
bargaining obligations based on management prerogative.	bargaining obligations based on management prerogative.
Regarding the issue
of
whether the change amounts to a change in policy rather than an
isolated contract breach, a change in policy is one that has a generalized effect or continuing
• 	i..
uaiga1n1ng
• • 	• 	, 	, 	,
	,.
• 	,	
,n	
. 	,
impact upon 	unit memoeis terms ana cona1t1ons or
" emp1oyment. \ vn1nztrarzs. i
The Board has found a "continuing impact" where the breaching party asserts that the change
was authorized by the collective bargaining agreement. (Ibid.; Fremont Unified School
District (1997) PERB Decision No. 1240.) The District asserts that the elimination of
Section 20-2 was authorized by Section 2-3 of the MOU. Given the continuing impact of the
16

position taken by the District, the change regarding Section 20-2 amounts to a change in
policy, not an isolated contract breach.
We plainly disagree with the Board agent that Local 3399 failed to meet its pleading
burden under Food and Agriculture. The Board agent appears to have relied on a statement in
the warning letter adopted, along with the dismissal, as the decision of the Board itself in that
case, stating that the charge failed to describe "any specific conduct on any specific date by
any specific agent of the state." The detailed factual allegations in this case bear no
resemblance to the vague, conclusiveld assertions in Food and Agriculture. We thus
conclude that Local 3399 has alleged sufficient facts to state a prima facie case that the
District's conduct in repudiating Section 20-2 constitutes a prohibited unilateral change in
terms and conditions of employment in violation of MMBA section 3505 and PERB
Regulation 32603(c).
B. 	Discrimination/Retaliation and Interference under MMBA Section 3506
The issue presented is whether Local 3399 stated a prima facie case that the District
violated MMBA section 3506 and PERB Regulation 32603(a) when it eliminated Section 20-2
from the parties' agreement and abolished the Union Time Bank. MMBA section 3506
provides:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 3
17 PERB Regulation 32603(a) makes it an unfair practice for a public agency to:
Interfere with, intimidate, restrain, coerce or discriminate against
public employees because of their exercise of rights guaranteed
by Government Code section 3502 or by any local rule adopted
pursuant to Government Code section 3507.
17
position taken by the District, the change regarding Section 20-2 amounts to a change in
policy, not an isolated contract breach.
We plainly disagree with the Board agent that Local 3399 failed to meet its pleading
burden under Food and Agriculture. The Board agent appears to have relied on a statement in
the warning letter adopted, along with the dismissal, as the decision of the Board itself in that
case, stating that the charge failed to describe "any specific conduct on any specific date by
any specific agent of the state." The detailed factual allegations in this case bear no
resemblance to the vague, conclusory and bald assertions in Food and Agriculture. We thus
conclude that Local 3399 has alleged sufficient facts to state a prima facie case that the
District's conduct in repudiating Section 20-2 constitutes a prohibited unilateral change in
terms and conditions of employment in violation of MMBA section 3505 and PERB
Regulation 32603(c).
B. 	Discrimination/Retaliation and Interference under MMBA Section 3506
The issue presented is whether Local 3399 stated a prima facie case that the District
violated MMBA section 3506 and PERB Regulation 32603(a) when it eliminated Section 20-2
from the parties' agreement and abolished the Union Time Bank. MMBA section 3506
provides:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 502. [171	3502? 71
17 PERB Regulation 32603(a) makes it an unfair practice for a public agency to:
Interfere with, intimidate, restrain, coerce or discriminate against
public employees because of their exercise of rights guaranteed
by Government Code section 3502 or by any local rule adopted
pursuant to Government Code section 3507.
17

Section 3502 provides, in pertinent part:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations.
The Board agent concluded that the charge failed to state a violation of the kind
described in Campbell." As the Board agent correctly observed, there are no allegations of
discrimination as between different groups of employees." Discrimination of the kind
involved in Campbell, however, is not the only theory of liability implicated by the factual
allegations in this case.
We have long held that an employer violates the law when it interferes with the rights
of employees or discriminates/retaliates against employees because of their exercise of
statutory rights. To establish a prima facie case of discrimination/retaliation, a charging party
must allege that the employer acted with an unlawful motive. (Novato Unified School District
(1982) PERB Decision No. 210 (Novato).) By contrast, to establish a prima facie case of
interference, the charging party need not allege an unlawful motive but only that the
respondent's conduct tends to or does result in harm to employees' rights. (Carlsbad Unified
Campbell, the employee organization exercised its protected rights by using an
impasse procedure contained in the meet and confer rules adopted by the employer. The
employer then denied a previously-agreed to retroactive salary adjustment to employees
represented by the employee organization but did not deny the adjustment to employees not
represented by the employee organization. The court ruled that the employer had engaged in
conduct "inherently destructive" of employees' rights.
The Board agent also found that the charge did not allege with specificity when the
grievances were filed and whether the Fire Chief was aware of them. Regarding Section 20-2,
Local 3399 alleged that the Fire Chief acknowledged the existence of three recently filed
grievances at the meeting of July 6, 2010. Regarding the Union Time Bank, Local 3399
alleged the specific dates on which the grievances were filed and the denial of the grievances at
Step 3 by the Fire Chief himself.
18
Section 3502 provides, in pertinent part:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations.
The Board agent concluded that the charge failed to state a violation of the kind
described in Campbell. 18 As the Board agent correctly observed, there are no allegations of
discrimination as between different groups of employees. 19 Discrimination of the kind
involved in Campbell, however, is not the only theory of liability implicated by the factual
allegations in this case.
We have long held that an employer violates the law when it interferes with the rights
of employees or discriminates/retaliates against employees because of their exercise of
statutory rights. To establish a prima facie case of discrimination/retaliation, a charging party
must allege that the employer acted with an unlawful motive. (Novato Unified School District
(1982) PERB Decision No. 210 (Novato).) 	By contrast, to establish a prima facie case of
interference, the charging party need not allege an unlawful motive but only that the
respondent's conduct tends to or does result in harm to employees' rights. (Carlsbad Unified
In In Campbell, the employee organization exercised its protected rights by using an
impasse procedure contained in the meet and confer rules adopted by the employer. 	The
employer then denied a previously-agreed to retroactive salary adjustment to employees
represented by the employee organization but did not deny the adjustment to employees not
represented by the employee organization. The court ruled that the employer had engaged in
conduct "inherently destructive" of employees' rights.
19 The Board agent also found that the charge did not allege with specificity when the
grievances were filed and whether the Fire Chief was aware of them. Regarding Section 20-2,
Local 3 3 99 alleged that the Fire Chief acknowledged the existence of three recently filed
grievances at the meeting of July 6, 2010. Regarding the Union Time Bank, Local 3399
alleged the specific dates on which the grievances were filed and the denial of the grievances at
Step 3 by the Fire Chief himself.
18

School District (1979) PERB Decision No. 89 (Carlsbad); Sacramento City Unified School
District (1982) PERB Decision No. 214.)
1 . 	Discrimination/Retaliation
To prove a discrimination/retaliation violation under the MMBA, a charging party bears
the initial burden of establishing that: (1) the employee engaged in protected activity; (2) the
employer knew of the activity; (3) the employer took adverse action; and (4) the protected
activity was a motivating factor in the employer's decision to take that action. (Novato.) The
fourth element has been described as follows:
Unlawful motive is the specific nexus required in the
establishment of a prima facie case. Direct proof of motivation is
rarely possible since motivation is a state of mind which may be
known only to the actor. Unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole.
(Trustees of the Cal. State Univv. Public Employment Relations Bd. (1992) 6 Cal.App.4th
1107, 1124.)
Types of circumstantial evidence probative of unlawful motive include: (1) timing of
the employer's adverse action (North Sacramento School District (1982) PERB Decision
No. 264); (2) disparate treatment (Regents of the University of California (1984) PERB
Decision No. 403-H); (3) departure from standard procedures (Santa Clara Unified School
District (1979) PERB Decision No. 104); (4) inadequate, inconsistent or shifting justification
for the adverse action (Novato); (5) cursory investigation (State of California (Department of
Parks and Recreation (1983) PERB Decision No. 328-S); and (6) anti-union animus (Jurupa
Community Services District (2007) PERB Decision No. 1920-M).
In Social Workers' Union, Local 535 v. Alameda County Welfare Dep't (1974) 11
Cal.3d 382, 388, the California Supreme Court stated that the MMBA "ensure[s] a public
employee's right to engage in a wide range of [employee organization] activities without fear
19
School District (1979) PERB Decision No. 89 (Carlsbad); Sacramento City Unified School
District (1982) PERB Decision No. 214.)
1. 	Discrimination/Retaliation
To prove a discrimination/retaliation violation under the MMBA, a charging party bears
the initial burden of establishing that: (1) the employee engaged in protected activity; (2) the
employer knew of the activity; (3) the employer took adverse action; and (4) the protected
activity was a motivating factor in the employer's decision to take that action. (Novato.) 	The
fourth element has been described as follows:
Unlawful motive is the specific nexus rnquired in the
establishment of a prima facie case. Direct proof of motivation is
rarely possible since motivation is a state of mind which may be
known only to the actor. Unlawful motive can be established by
circumstantial evidence and inferred from the record as a whole.
(Trustees of the Cal. State Univ. v. Public Employment Relations Bd. (1992) 6 Cal.App.4 th
1107, 1124.)
Types of circumstantial evidence probative of unlawful motive include: (1) timing of
the employer's adverse action (North Sacramento School District (1982) PERB Decision
No. 264); (2) disparate treatment (Regents of the University of California (1984) PERB
Decision No. 403-H); (3) departure from standard procedures (Santa Clara Unified School
District (1979) PERB Decision No. 104); (4) inadequate, inconsistent or shifting justification
for the adverse action (Novato); (5) cursory investigation (State of California (Department of
Parks and Recreation (1983) PERB Decision No. 328-S); and (6) anti-union animus
Community Services District (2007) PERB Decision No. 1920-M).
(Jurupa
In Social Workers' Union, Local 535 v. Alameda County Welfare Dep 't (1974) 11
Cal.3d 382, 388, the California Supreme Court stated that the MMBA "ensure[s] a public
employee's right to engage in a wide range of [employee organization] activities without fear
19

of sanction . . .." The Board has found that filing a grievance is one type of protected activity.
(See, e.g., Bay Area Quality Management District (2006) PERB Decision No. 1807-M; City of
Modesto (2008) PERB Decision No. 1994-M [asserting rights established by negotiated
agreement constitutes participation in activities of employee organization].) Thus, the first
element of the prima facie case is satisfied.
The Fire Chief knew of the protected activity, having acknowledged the three earlier
grievances at the July 6, 2010, meeting and having personally participated in the grievances
concerning the Union Time Bank. The second element of the prima facie case is also satisfied.
and the elimination of the Union Time Bank constitute actions adverse to the interests of the
individual employees engaged in the protected activity and to the interests of the bargaining
unit as a whole. Section 20-2 concerned union access rights and the Union Time Bank policy
allowed employees to donate one hour per month of their earned vacation leave to a time bank
used to facilitate legitimate organizational activities. Using a reasonable person standard, we
consider the type of actions taken by the District to have an adverse impact on employment.
(Newark Unified School District (1991) PERB Decision No. 864.) Therefore, they constitute
adverse actions for purposes of satisfying the third element of the prima facie case.
20
of sanction .... " The Board has found that filing a grievance is one type of protected activity.
(See, e.g., Bay Area Quality Management District (2006) PERB Decision No. 1807-M; City of
Modesto (2008) PERB Decision No. 1994-M [asserting rights established by negotiated
agreement constitutes participation in activities of employee organization].) Thus, the first
element of the prima facie case is satisfied.
The Fire Chief knew of the protected activity, having acknowledged the three earlier
grievances at the July 6, 2010, meeting and having personally participated in the grievances
concerning the Union Time Bank. The second element of the prima facie case is also satisfied.
Regarding the third element, the removal of Section 20-2 from the parties' agreement
and the elimination of the Union Time Bank constitute actions adverse to the interests of the
individual employees engaged in the protected activity and to the interests of the bargaining
unit as a whole. Section 20-2 concerned union access rights and the Union Time Bank policy
allowed employees to donate one hour per month of their earned vacation leave to a time bank
used to facilitate legitimate organizational activities. Using a reasonable person standard, we
consider the type of actions taken by the District to have an adverse impact on employment.
(Newark Unified School District (1991) PERB Decision No. 864.) Therefore, they constitute
adverse actions for purposes of satisfying the third element of the prima facie case.
Regarding the fourth element, there is both direct and circumstantial evidence of the	Regarding the fourth element, there is both direct and circumstantial evidence of the
District's unlawful intent in taking these two actions. Local 3399 alleged that the earlier	District's unlawful intent in taking these two actions. Local 3399 alleged that the earlier
grieva11ces v,rere filed "recently'' in relation to tl1e	grievances were filed "recently" in relation to the action taken by the District to remove	action tak~e11 by the District to ren1ove
Section 20-2 from the parties' agreement. The timing element is also met	Section 20-2 from the parties' agreement. The timing element is also metin regard to the	regard to
elimination	elimination of the Union Time Bank in that it occurred in the context of the protected activity	of the Union Time Bank in that it occurred in the context of the protected activity
20

itself. The Fire Chief declared the Union Time Bank abolished when he denied the Union
Time Bank grievances at Step 3.20
Moreover, Local 3399 alleged that at the July 6, 2010, meeting, the Fire Chief admitted
that Section 20-2 was removed because of the filing of three recent grievances. The Fire
Chief made similar admissions in the context of the Union Time Bank grievances. The Fire
Chief stated, "[the constructive end served by the elimination of the time release bank is no
further misunderstandings, grievances or complaints regarding its use."
The removal of Section 20-2 and the elimination of the Union Time Bank may have
indeed reduced the number of grievances filed. If that occurred, it would not have been as a
result of improvements in the parties' relationship but rather as a result of the employees being
deterred by fear, reasonable in the circumstances, of losing other negotiated contract provisions
and established policies. No employee should be fearful that by engaging in the protected
20 The Fire Chief stated:
Since the use of the release time bank will continue to be a
contentious issue between the District and the Local, I can't
justify spending any more staff time arguing over the issue. The
following shall occur immediately:
The Union Firefighters Release Time Bank will be discontinued
and dissolved. The time will be returned to each contributing
employee per policy.
21 When Nichols asked the Fire Chief to confirm at the July 6, 2010, meeting whether
the Fire Chief was referring to three then recently filed grievances when he said that Section
20-2 did not foster good employer-employee relations, the Fire Chief responded, "Uh . . . ya."
When Nichols e-mailed the Fire Chief to summarize what had occurred at the July 6, 2010,
meeting, he wrote:
All five District Board members along with yourself . . .
overwhelmingly agreed that it was no longer beneficial to the best
interest of the District, because of District / employee relations,
pertaining to the 3 current individual grievances, to allow on duty
Union personnel to attend union meetings and the meetings can
no longer be held at District Facilities.
21
itself. The Fire Chief declared the Union Time Bank abolished when he denied the Union
Time Bank grievances at Step 3.20
Moreover, Local 3399 alleged that at the July 6, 2010, meeting, the Fire Chief admitted
that Section 20-2 was removed because of the filing of three recent grievances.21 The Fire
Chief made similar admissions in the context of the Union Time Bank grievances. 	The Fire
Chief stated, "[t]he constructive end served by the elimination of the time release bank is no
further misunderstandings, grievances or complaints regarding its use."
The removal of Section 20-2 and the elimination of the Union Time Bank may have
indeed reduced the number of grievances filed. 	If that occurred, it v.rould not have been as a
result of improvements in the parties' relationship but rather as a result of the employees being
deterred by fear, reasonable in the circumstances, of losing other negotiated contract provisions
and established policies. No employee should be fearful that by engaging in the protected
20 The Fire Chief stated:
Since the use of the release time bank will continue to be a
contentious issue between the District and the Local, I can't
justify spending any more staff time arguing over the issue. The
following shall occur immediately:
The Union Firefighters Release Time Bank will be discontinued
and dissolved. The time will be returned to each contributing
employee per policy.
21 When Nichols asked the Fire Chief to confirm at the July 6, 2010, meeting whether
the Fire Chief was referring to three then recently filed grievances when he said that Section
20-2 did not foster good employer-employee relations, the Fire Chief responded, "Uh ... ya."
When Nichols e-mailed the Fire Chief to summarize what had occurred at the July 6, 2010,
meeting, he wrote:
All five District Board members along with yourself ...
overwhelmingly agreed that it was no longer beneficial to the best
interest of the District, because of District/ employee relations,
pertaining to the 3 current individual grievances, to allow on duty
Union personnel to attend union meetings and the meetings can
no longer be held at District Facilities.
21

activity of filing a grievance, he or she risks the types of retribution to the entire bargaining
unit alleged to have occurred here. Accordingly, we find that Local 3399 has stated a prima
facie case of discrimination/retaliation under Novato."
2. 	Interference
The allegations show a prima facie case of Carlsbad interference, a type of conduct
also prohibited under the authorities set forth above. The courts have described the elements
of an interference violation under the MMBA as follows:
All [a charging party] must prove to establish an interference
violation of [MMBA] section 3506 is: (1) That employees were
engaged in protected activity; (2) that the employer engaged in
conduct which tends to interfere with, restrain or coerce
employees in the exercise of those activities, and (3) that [the]
employer's conduct was not justified by legitimate business
reasons.
(Public Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797, 807.)23
In an interference case, once the charging party demonstrates that the respondent's
conduct tends to or does result in harm to employees' rights, the burden shifts to the
respondent to produce a legitimate business reason for its conduct.
3. 	Where the harm to employees' rights is slight, and the
employer offers justification based on operational necessity, the
ee also Cupertino Union Elementary School District (1986) PERB Decision
No. 572 i volving the layoff of a group of employees because of participation in protected
activities by members of that group. As the Board stated: "Where an employer's decision to
lay off a group of employees is unlawfully motivated by the union activism of some members
of the group, the layoff is unlawful as to the entire group."
In cases arising under the MMBA, PERB "shall apply and interpret unfair labor
practices consistent with existing judicial interpretations of [the MMBA]." (MMBA, $ 3509,
subd. (b).)
22
activity of filing a grievance, he or she risks the types of retribution to the entire bargaining
unit alleged to have occurred here. Accordingly, we find that Local 3399 has stated a prima
facie case of discrimination/retaliation under Novato. 22
2. 	Interference
The allegations show a prima facie case of Carlsbad interference, a type of conduct
also prohibited under the authorities set forth above. The courts have described the elements
of an interference violation under the MMBA as follows:
All [a charging party] must prove to establish an interference
violation of [MMBA] section 3506 is: (1) That employees were
engaged in protected activity; (2) that the employer engaged in
conduct which tends to interfere with, restrain or coerce
employees in the exercise of those activities, and (3) that [the]
employer's conduct was not justified by legitimate business
reasons.
(Public Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797, 807.)23
In an interference case, once the charging party demonstrates that the respondent's
conduct tends to or does result in harm to employees' rights, the burden shifts to the
respondent to produce a legitimate business reason for its conduct.
3. 	Where the harm to employees' rights is slight, and the
employer offers justification based on operational necessity, the
" SSee also Cupertino Union Elementary School District (1986) PERB Decision
No. 572 involving	n 	the layoff of a group of employees because of participation in protected
activities by members of that group. As the Board stated: "Where an employer's decision to
lay off a group of employees is unlawfully motivated by the union activism of some members
of the group, the layoff is unlawful as to the entire group."
23 In cases arising under the MMBA, PERB "shall apply and interpret unfair labor
practices consistent with existing judicial interpretations of [the MMBA]." (MMBA, § 3509,
subd. (b).)
22

competing interest of the employer and the rights of the
employees will be balanced and the charge resolved accordingly.
4. 	Where the harm is inherently destructive of employee
rights, the employer's conduct will be excused only on proof that
it was occasioned by circumstances beyond the employer's
control and that no alternative course of action was available.
(Carlsbad, at pp. 10-11.)
Turning to the factual allegations in this case, the circumstances surrounding the
District's removal of Section 20-2 from the parties' agreement and its decision to abolish the
Union Time Bank provide a sufficient basis upon which to conclude that Local 3399 has stated
a prima facie case of Carlsbad interference. In each instance, employees have asserted their
protected right to utilize the grievance procedures in order to resolve their disputes with the
District, procedures agreed to by the District in the parties' MOU. In each instance, the
District appears to have responded at least in part by taking something away, not just from the
employees who filed the grievance but from the entire bargaining unit: a provision of the
MOU itself in one instance, and an established policy implementing a Union Time Bank in the
other. Grievance procedures are a fundamental labor relations tool for resolving disputes in the
workplace. The overall effect of the District's conduct, whether intended or not, is to
discourage employees from utilizing this tool and, in so doing, from asserting their rights under
the statutory scheme. Accordingly, we find that Local 3399 has stated a prima facie case that
the District's conduct tended to or did result in harm to employee rights under the Carlsbad
interference standard.
23
competing interest of the employer and the rights of the
employees will be balanced and the charge resolved accordingly.
4. 	Where the harm is inherently destructive of employee
rights, the employer's conduct will be excused only on proof that
it was occasioned by circumstances beyond the employer's
control and that no alternative course of action was available.
(Carlsbad, at pp. 10-11.)
Turning to the factual allegations in this case, the circumstances surrounding the
District's removal of Section 20-2 from the parties' agreement and its decision to abolish the
Union Time Bank provide a sufficient basis upon which to conclude that Local 3399 has stated
a prima facie case of Carlsbad interference. In each instance, employees have asserted their
protected right to utilize the grievance procedures in order to resolve their disputes with the
District, procedures agreed to by the District in the parties' MOU. In each instance, the
District appears to have responded at least in part by taking something away, not just from the
employees who filed the grievance but from the entire bargaining unit: a provision of the
MOU itself in one instance, and an established policy implementing a Union Time Bank in the
other. Grievance procedures are a fundamental labor relations tool for resolving disputes in the
workplace. The overall effect of the District's conduct, whether intended or not, is to
discourage employees from utilizing this tool and, in so doing, from asserting their rights under
the statutory scheme. Accordingly, we find that Local 3399 has stated a prima facie case that
the District's conduct tended to or did result in harm to employee rights under the Carlsbad
interference standard.
23

In reversing the partial dismissal, the Board makes no final determination about
Local 3399's allegations. The record adequately speaks to the issue of the status of Section 20-2
for purposes of determining whether a prima facie case has been stated.24
ORDER
The Public Employment Relations Board hereby REVERSES the partial dismissal of
the unfair practice charge in Case No. SA-CE-711-M and REMANDS this case to the Office of
the General Counsel for issuance of an amended complaint consistent with this Decision.
Members Dowdin Calvillo and Huguenin joined in this Decision.
The facts alleged in the charge, as amended, are deemed true for purposes of this
appeal. (See Amador Valley; San Juan Unified School District (1977) EERB Decision No. 12.
[Prior to January 1, 1978, PERB was known as the Educational Employment Relations Board
(EERB)].)
24
In reversing the partial dismissal, the Board makes no final determination about
Local 3399's allegations. The record adequately speaks to the issue of the status of Section 20-2
for purposes of determining whether a prima facie case has been stated.24
ORDER
The Public Employment Relations Board hereby REVERSES the partial dismissal of
the unfair practice charge in Case No. SA-CE-711-M and REMANDS this case to the Office of
the General Counsel for issuance of an amended complaint consistent with this Decision.
:rv1embers Dovvdin Calvillo and Huguenin joined in this Decision.
L
24
24 The facts alleged in the charge, as amended, are deemed true for purposes of this
appeal. 	(See Amador Valley; San Juan Unified School District (1977) EERB Decision No. 12.
[Prior to January 1, 1978, PERB was known as the Educational Employment Relations Board
(EERB)].)