City of San Juan Capistrano (PERB 2238M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN JUAN CAPISTRANO MANAGEMENT &
PROFESSIONAL EMPLOYEES ASSOCIATION,
Charging Party,
v.
CITY OF SAN JUAN CAPISTRANO,
Respondent.
Case No. LA-CE-643-M
PERB Decision No. 2238-M
February 24, 2012
Appearance: 	City Employees Associates by Jeffrey W. Natke, Labor Relations Representative,
for San Juan Capistrano Management & Professional Employees Association.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the San Juan Capistrano Management & Professional
Employees Association (Association)
of
a Board agent's dismissal (attached)
of
its unfair
practice charge. The charge, filed October 19, 2010, alleged that the City
of
San Juan
Capistrano (City) violated section 3505
of
the Meyers-Milias-Brown Act (MMBA) 1 by
unilaterally using outside contracted labor to perform bargaining unit work.
In its amended charge, the Association alleged that: (1) the City committed a unilateral
change by assigning temporary workers to perform the duties
of
vacant bargaining unit
positions; (2) the City had not been complying with rule 8.06
of
the City's Personnel Rules
(Personnel Rules) because the City could not guarantee that it would fill the positions at issue
with bargaining unit members represented by the Association within 12 months; (3) the City
1 The MMBA is codified at Government Code section 3500 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN JUAN CAPISTRANO MANAGEMENT &
PROFESSIONAL EMPLOYEES ASSOCIATION,
Charging Party, 	Case No. LA-CE-643-M
PERB Decision No. 2238-M
CITY OF SAN JUAN CAPISTRANO, 	February 24, 2012
Respondent.
Appearance: City Employees Associates by Jeffrey W. Natke, Labor Relations Representative,
for San Juan Capistrano Management & Professional Employees Association.
Before Mckeag, Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the San Juan Capistrano Management & Professional
Employees Association (Association) of a Board agent's dismissal (attached) of its unfair
practice charge. The charge, filed October 19, 2010, alleged that the City of San Juan
Capistrano (City) violated section 3505 of the Meyers-Milias-Brown Act (MMBA)' by
unilaterally using outside contracted labor to perform bargaining unit work.
In its amended charge, the Association alleged that: (1) the City committed a unilateral
change by assigning temporary workers to perform the duties of vacant bargaining unit
positions; (2) the City had not been complying with rule 8.06 of the City's Personnel Rules
(Personnel Rules) because the City could not guarantee that it would fill the positions at issue
with bargaining unit members represented by the Association within 12 months; (3) the City
The MMBA is codified at Government Code section 3500 et seq.

declined to explain why provisional appointments
of
vacant bargaining unit positions
were
necessary; and (4) the City was considering reorganizing itself in an effort to avoid filing
vacant unit member positions.
On
February 4, 2011, the Board agent dismissed the charge. In the dismissal letter, the
Board agent concluded that: 	(1) the Personnel Rules give the City the authority to fill
vacant
positions on a temporary basis under certain conditions; (2) the Personnel Rules do not require
that the City fill vacant positions on a permanent basis; (3) the Personnel Rules do not require
that the City inform the Association
of
the reasons why the City believed provisional
labor
was
necessary; and (4) there is insufficient information in the charge regarding the nature
of
the
City's
proposal to reorganize to determine either that a policy within the scope
of
representation would be changed or whether the City intended to satisfy its duty to negotiate
with the Association prior to altering any negotiable subjects.
We have reviewed the entire record in this matter. Based on this review and applying
the relevant law, we find the Board agent's warning and dismissal letters to be well-reasoned,
adequately supported by the record and in accordance with the applicable law. Accordingly,
the Board adopts the warning and dismissal letters as the decision
of
the Board itself, subject to
the discussion below regarding the Association's appeal.
DISCUSSION
On appeal, the Association asserts several points
of
contention with the Board agent's
dismissal. 	In its appeal, the Association contends that the City violated section 8.06
of
the
Personnel Rules by: (1) filling one vacant bargaining unit position with a contract employee
2
declined to explain why provisional appointments of vacant bargaining unit positions were
necessary; and (4) the City was considering reorganizing itself in an effort to avoid filing
vacant unit member positions.
On February 4, 2011, the Board agent dismissed the charge. In the dismissal letter, the
Board agent concluded that: (1) the Personnel Rules give the City the authority to fill vacant
positions on a temporary basis under certain conditions; (2) the Personnel Rules do not require
that the City fill vacant positions on a permanent basis; (3) the Personnel Rules do not require
that the City inform the Association of the reasons why the City believed provisional labor was
necessary; and (4) there is insufficient information in the charge regarding the nature of the
City's proposal to reorganize to determine either that a policy within the scope of
representation would be changed or whether the City intended to satisfy its duty to negotiate
with the Association prior to altering any negotiable subjects.
We have reviewed the entire record in this matter. Based on this review and applying
the relevant law, we find the Board agent's warning and dismissal letters to be well-reasoned,
adequately supported by the record and in accordance with the applicable law. Accordingly,
the Board adopts the warning and dismissal letters as the decision of the Board itself, subject to
the discussion below regarding the Association's appeal.
DISCUSSION
On appeal, the Association asserts several points of contention with the Board agent's
dismissal. In its appeal, the Association contends that the City violated section 8.06 of the
Personnel Rules by: (1) filling one vacant bargaining unit position with a contract employee
2

for 17 months, a period longer than the 12-month limit imposed by the Personnel Rules;2 (2)
failing to inform employees internally that there was a need to fill the positions; (3) failing to
state why the positions needed to be filled on an interim basis while the City conducted its
recruitment; ( 4) failing to initiate a recruitment process; (5) failing to show that there was an
absence of persons available for appointment; ( 6) failing to show that time was of the essence;
and (7) failing to compensate alleged contract employees within the approved salary range.
Jurisdiction
PERB has no jurisdiction to remedy a violation of a collective bargaining agreement3
unless the violation also constitutes an unlawful unilateral change. (Grant Joint Union High
School District (1982) PERB Decision No. 196 (Grant); see County of Riverside (2003) PERB
Decision No. 1577-M (applying Grant under MMBA).)4 While PERB has the authority to
review an alleged violation of a local rule or regulation adopted by a public agency pursuant to
MMBA section 3507 or 3507.5 (MMBA § 3509(b); City of Commerce (2008) PERB Decision
No. 193 7), there is no allegation that such a rule is implicated in this case. The only allegations
presented in the charge are violations of the Personnel Rules. Therefore, we construe the charge
as alleging an unlawful unilateral change in policy set forth in the Personnel Rules.
T This allegation is presented for the first time on appeal. 	"Unless good cause is shown,
a charging party may not present on appeal new charge allegations or new supporting
evidence." (PERB Reg. 32635(b) [PERB regs. are codified at Cal. Code Regs., tit. 8,
sec. 31001 et seq. ]; see also CSU Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB
Decision No. 2175-H.)
a charging party may not present on appeal new charge allegations or new supporting
evidence." (PERB Reg. 32635(b) [PERB regs. are codified at Cal. Code Regs., tit. 8,
sec. 31001 et seq.]; see also CSU Employees Union, SEIU Local 2579 (Kyrias) (2011) PERB
Decision No. 2175-H.)
3 In this case, there is an alleged violation of the Personnel Rules.	In this case, there is an alleged violation of the Personnel Rules.
4 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
3
for 17 months, a period longer than the 12-month limit imposed by the Personnel Rules; (2)
failing to inform employees internally that there was a need to fill the positions; (3) failing to
state why the positions needed to be filled on an interim basis while the City conducted its
recruitment; (4) failing to initiate a recruitment process; (5) failing to show that there was an
absence of persons available for appointment; (6) failing to show that time was of the essence;
and (7) failing to compensate alleged contract employees within the approved salary range.
Jurisdiction
PERB has no jurisdiction to remedy a violation of a collective bargaining agreement'
unless the violation also constitutes an unlawful unilateral change. (Grant Joint Union High
School District (1982) PERB Decision No. 196 (Grant); see County of Riverside (2003) PERB
Decision No. 1577-M (applying Grant under MMBA).)" While PERB has the authority to
review an alleged violation of a local rule or regulation adopted by a public agency pursuant to
MMBA section 3507 or 3507.5 (MMBA $ 3509(b); City of Commerce (2008) PERB Decision
No. 1937), there is no allegation that such a rule is implicated in this case. The only allegations
presented in the charge are violations of the Personnel Rules. Therefore, we construe the charge
as alleging an unlawful unilateral change in policy set forth in the Personnel Rules.
his allegation is presented for the first time on appeal. "Unless good cause is shown,
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
3

In its appeal, the Association does not contend that the City violated the MMBA by
unilaterally using outside contracted labor to perform bargaining unit work. 5 Each
of
the
contentions presented by the Association on appeal concerns application of, not a change in,
the Personnel Rules. Thus, to the extent the charge alleged an isolated breach
of
the Personnel
Rules, PERB has no jurisdiction over the charge. Under the Personnel Rules, violations are
addressed as grievances. (Personnel Rule 12, pp. 45-48.) In the absence
of
any showing that
the alleged Personnel Rule violations amounted to a change in policy having a generalized
effect or continuing impact on the terms and conditions
of
employment
of
bargaining unit
members (Desert Sands Unified School District (2010) PERB Decision No. 2092), the Board
agent properly dismissed the aiiegation that the City violated the MMBA by breaching the
Personnel Rules.
ORDER
The unfair practice charge in Case No. LA-CE-643-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
I In its amended charge, the Association noted that it would proceed with the charge as
an isolated violation of the Personnel Rules rather than a unilateral change to section 8.06 of
the Personnel Rules.
4
In its appeal, the Association does not contend that the City violated the MMBA by
unilaterally using outside contracted labor to perform bargaining unit work. Each of the
contentions presented by the Association on appeal concerns application of, not a change in,
the Personnel Rules. Thus, to the extent the charge alleged an isolated breach of the Personnel
Rules, PERB has no jurisdiction over the charge. Under the Personnel Rules, violations are
addressed as grievances. (Personnel Rule 12, pp. 45-48.) In the absence of any showing that
the alleged Personnel Rule violations amounted to a change in policy having a generalized
effect or continuing impact on the terms and conditions of employment of bargaining unit
members (Desert Sands Unified School District (2010) PERB Decision No. 2092), the Board
agent properly dismissed the allegation that the City violated the MMBA by breaching the
Personnel Rules.
ORDER
The unfair practice charge in Case No. LA-CE-643-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Dowdin Calvillo joined in this Decision.
n its amended charge, the Association noted that it would proceed with the charge as
an isolated violation of the Personnel Rules rather than a unilateral change to section 8.06 of
the Personnel Rules.

STATE
OF
CALIFORNIA	STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
April 4, 2011
Jeffrey Natke, Labor Repre§"entative
City Employees Associates
2918 E. 7th Street
Long Beach, CA 90804 ·
EDMUND G.
BROWN
JR., Governor
Re: 	San Juan Capistrano Management and Professional Employees Association
v.
City
of
San Juan Capistrano
Unfair Practice Charge No. LA-CE-643-M
DISMISSAL LETTER
Dear Mr. Natke:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 19, 2010. San Juan Capistrano Management and
Professional Employees Association (Union or Charging Party) alleges that the City
of
SanJuan Capistrano (City or Respondent) violated section 3505
of
the Meyers-Milias-Brown Act
(MMBA or Act) 1 by unilaterally using outside contracted labor to perform bargainingunit	unit
work.	
9'=--	
,~,
Charging Party was informed in the attached Warning Letter dated March 2, 2011, that
theabove-referenced charge did not state a prima facie case. 	You were advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to March 11, 2011, the charge would be
dismissed. After requesting and receiving an extension
of
time, on April
1,
2011, the Union
filed an amended charge.
In the amended charge, the Union continues to allege that the City committed a unilateral
change by assigning temporary workers to perform the duties
of
vacant bargaining unit
positions. As explained in the March 2, 2011 Warning Letter, City Personnel Rule 8.06 gives
the City the authority to fill vacant positions on a temporary basis under certain conditions.
The Warning Letter further explained that the Union did not establish that the City violated or
acted in excess
of
its authority under this rule.
the amended charge, the Union alleges that the City has not been complying with Rule 8.06
of
the City's Personnel Rules because the City could not guarantee that it would fill the
positions at issue with bargaining unit members represented by the Union within 12 months.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
April 4, 2011
Jeffrey Natke, Labor Representative
City Employees Associates
2918 E. 7th Street
Long Beach, CA 90804
Re: 	San Juan Capistrano Management and Professional Employees Association v. City of
San Juan Capistrano
Unfair Practice Charge No. LA-CE-643-M
DISMISSAL LETTER
Dear Mr. Natke:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 19, 2010. San Juan Capistrano Management and
Professional Employees Association (Union or Charging Party) alleges that the City of San
Juan Capistrano (City or Respondent) violated section 3505 of the Meyers-Milias-Brown Act
(MMBA or Act)' by unilaterally using outside contracted labor to perform bargaining
work.
Charging Party was informed in the attached Warning Letter dated March 2, 2011, that the
above-referenced charge did not state a prima facie case. You were advised that, if there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to March 11, 2011, the charge would be
dismissed. After requesting and receiving an extension of time, on April 1, 2011, the Union
filed an amended charge.
In the amended charge, the Union continues to allege that the City committed a unilateral
change by assigning temporary workers to perform the duties of vacant bargaining unit
positions. As explained in the March 2, 2011 Warning Letter, City Personnel Rule 8.06 gives
the City the authority to fill vacant positions on a temporary basis under certain conditions.
The Warning Letter further explained that the Union did not establish that the City violated or
acted in excess of its authority under this rule.
In the amended charge, the Union alleges that the City has not been complying with Rule 8.06
of the City's Personnel Rules because the City could not guarantee that it would fill the
positions at issue with bargaining unit members represented by the Union within 12 months.
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at w

LA-CE-643-M
April 4, 2011
Page 2
The Union also alleges that the City declined to explain why provisional appointments
of
vacant bargaining unit positions was necessary. These facts, even
if
true, do not demonstrate a
violation
of
either the City's Personnel Rules or the MMBA. Nothing in Personnel Rule 8.06
requires the City to fill vacant positions on a permanent basis. Rather, the rule focuses on the
amount
of
time provisional appointments may be used. 	The City's unwillingness to commit to
permanently filling vacant unit positions does not necessarily mean that it will make
provisional appointments in excess
of
its authority under City Personnel Rule 8.06. Therefore,
this allegation does not support the issuance
of
a complaint.
Likewise, nothing in City Personnel Rule 8.06 requires the City to inform the Union
of
the
reasons why the City believed provisional labor was necessary. Moreover, the Union has not
alleged that it requested this information, or any other information necessary and relevant to
the exercise
of
its duties as a bargaining representative, from the City. This claim is also
insufficient to demonstrate a violation.
The Union also alleges that the City was considering reorganizing itself in an effort to avoid
filling vacant unit member positions. This allegation also does not demonstrate a violation
of
the MMBA. 	The Union appears to contend that the City, by this statement, enacted. a unilateral
policy change. However, there is insufficient information to support this conclusion. As
explained in the March 2, 2011 Warning Letter, unilateral changes are considered "per se"
violations
if
certain criteria are met. Those criteria are: (1) the employer breached or altered
the parties' written agreement or past practice; (2) the action was taken without giving the
exclusive representative notice' or an opportunity to bargain over the change; (3) the action is
not merely an isolated incident, but amounts to a change
of
policy (i.e., having a generalized
effect or continuing impact on terms and conditions
of
employment); and (4) the change in
policy concerns a matter within the scope
of
representation. (Desert Sands Unified School
District (2010) PERB Decision No. 2092; Walnut Valley Unified School District (1981) PERB
Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)2
In this case, there is insufficient information regarding the nature
of
the City's proposal to
reorganize to determine either that a policy within the scope
of
representation would be
changed or whether the City intended satisfy its duty to negotiate with the Union prior to
altering any negotiable subjects. In addition, there is insufficient information to conclude that
a policy change occurred. PERB has found a unilateral change where the employer makes a
firm decision to implement a change in policy that is within the scope
of
representation without
subsequent wavering
of
that intent. (State
of
California (Department
of
Transportation)
(1997) PERB Decision No. 1213-S.) Absent a definite decision to implement the change, even
a threatened unilateral change is not sufficient to demonstrate a violation. (State
of
California
(Department a/General Services) (1993) PERB Decision No. 976-S.) In this case, the Union's
When interpreting the MMBA,
it,
is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
LA-CE-643-M
April 4, 2011
Page 2
The Union also alleges that the City declined to explain why provisional appointments of
vacant bargaining unit positions was necessary. These facts, even if true, do not demonstrate a
violation of either the City's Personnel Rules or the MMBA. Nothing in Personnel Rule 8.06
requires the City to fill vacant positions on a permanent basis. Rather, the rule focuses on the
amount of time provisional appointments may be used. The City's unwillingness to commit to
permanently filling vacant unit positions does not necessarily mean that it will make
provisional appointments in excess of its authority under City Personnel Rule 8.06. Therefore,
this allegation does not support the issuance of a complaint.
Likewise, nothing in City Personnel Rule 8.06 requires the City to inform the Union of the
reasons why the City believed provisional labor was necessary. Moreover, the Union has not
alleged that it requested this information, or any other information necessary and relevant to
the exercise of its duties as a bargaining representative, from the City. This claim is also
insufficient to demonstrate a violation.
The Union also alleges that the City was considering reorganizing itself in an effort to avoid
filling vacant unit member positions. This allegation also does not demonstrate a violation of
the MMBA. The Union appears to contend that the City, by this statement, enacted a unilateral
policy change. However, there is insufficient information to support this conclusion. As
explained in the March 2, 2011 Warning Letter, unilateral changes are considered "per se"
violations if certain criteria are met. Those criteria are: (1) the employer breached or altered
the parties' written agreement or past practice; (2) the action was taken without giving the
exclusive representative notice or an opportunity to bargain over the change; (3) the action is
not merely an isolated incident, but amounts to a change of policy (i.e., having a generalized
effect or continuing impact on terms and conditions of employment); and (4) the change in
policy concerns a matter within the scope of representation. (Desert Sands Unified School
District (2010) PERB Decision No. 2092; Walnut Valley Unified School District (1981) PERB
Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)'
In this case, there is insufficient information regarding the nature of the City's proposal to
reorganize to determine either that a policy within the scope of representation would be
changed or whether the City intended satisfy its duty to negotiate with the Union prior to
altering any negotiable subjects. In addition, there is insufficient information to conclude that
a policy change occurred. PERB has found a unilateral change where the employer makes a
firm decision to implement a change in policy that is within the scope of representation without
subsequent wavering of that intent. (State of California (Department of Transportation)
(1997) PERB Decision No. 1213-S.) Absent a definite decision to implement the change, even
a threatened unilateral change is not sufficient to demonstrate a violation. (State of California
(Department of General Services) (1993) PERB Decision No. 976-S.) In this case, the Union's
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CE-643-M
April 4, 2011
Page 3
allegation is not sufficiently specific to demonstrate a clear intent to implement a policy
change. Accordingly, the Union does not demonstrate that a violation occurred.
For all these reasons, the Union has not established that the City violated the MMBA.
Accordingly, the Union's unfair practice charge
is
dismissed.
Right to Appeal
Pursuant to PERB Regulations,3 Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself vvithin twenty (20) calendar days after service
of
this dismissal. 	(Cal. Code Regs, tit.
8,
§ 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit.
8,
§§
32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements
of
PERB Regulation 32135(d), provided the filing party also places the original,
. together with the required number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§
32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 3 22-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service
of
the appeal. (Cal. Code Regs, tit. 8, § 32635, subd. (b).)
Service
AU documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
3 PERB Regulations are codified at California Code of Regulations, title 8, section
3 100 I et seq.
LA-CE-643-M
April 4, 2011
Page 3
allegation is not sufficiently specific to demonstrate a clear intent to implement a policy
change. Accordingly, the Union does not demonstrate that a violation occurred.
For all these reasons, the Union has not established that the City violated the MMBA.
Accordingly, the Union's unfair practice charge is dismissed.
Right to Appeal
Pursuant to PERB Regulations,' Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, $ 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, $5 32135, subd. (a) and 32130; see also Gov. Code, $ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code
Regs, tit. 8, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, $$ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs, tit. 8, $ 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-643-M
April 4, 2011
Page 4
party
or
filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered
ordeposited in the mail or deposited with a delivery service and properly addressed. A
document
may also be concurrently served
via
facsimile transmission
on
all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by
proof
of
service
of
therequest upon each party. (Cal. Code Regs, tit. 8, § 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final
when the
time limits have expired.
Sincerely,
WENDI
L.
ROSS
Interim General Counsel
By
Eric J. Cu
Regional Att	ttornney	ey
Eric J.
Cu
/
Attachment
cc: 	Barbara Raileanu
LA-CE-643-M
April 4, 2011
Page 4
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, $ 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, $ 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
WENDI L. ROSS
Interim General Counsel
Regional A
Attachment
cc: Barbara Raileanu

ST
A TE OF CALIFORNIA	STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
March 2, 2011
Ralph Royds, Labor Representative
City Employees Associates
2918
E.
7th St.
Long Beach, CA 90804
EDMUND G.
BROWN
	Governor
Re: 	San Juan Capistrano Management and Professional Employees Association
v.
City
of
San Juan Capistrano
Unfair Practice Charge No. LA-CE-643-M
WARNING LETTER
Dear Mr. Royds:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 19, 2010. San Juan Capistrano Management and
Professional Employees Association (Union or Charging Party) alleges that the City
of
San
Juan Capistrano (City or Respondent) violated section 3505
of
the Meyers-Milias-Brown Act
(MMBA or Act) 1 by unilaterally using outside contracted labor to perform bargaining unit
work.
The Union is the exclusive representative
of
the Management and Professional bargaining unit
at the City. 	The Union and the City were parties to a Memorandum
of
Understanding (MOU)
that expired by its own terms on June 30, 2010. The parties are currently in negotiations for a
successor MOU.
Since 1999, the City has maintained Personnel Rules concerning its employment practices.
Personnel Rule 8.06 provides:
The Personnel Officer may approve a temporary provisional
appointment
in:
the absence
of
persons available for appointment
when time is
of
the essence for filling the vacancy. An
appointment to fill a vacancy in this manner may require hiring a
trainee, selecting a qualified individual presently not employed
by the City, or appointing an existing full time employee in an
acting status. A provisional appointment is made at the discretion
of the Personnel Officer. The appointed individual shall be
compensated within the approved salary range for the appointed
position. A provisional appointment shall be less than 12 months
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N, Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
March 2, 2011
Ralph Royds, Labor Representative
City Employees Associates
2918 E. 7th St.
Long Beach, CA 90804
Re: San Juan Capistrano Management and Professional Employees Association v. City of
San Juan Capistrano
Unfair Practice Charge No. LA-CE-643-M
WARNING LETTER
Dear Mr. Royds:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on October 19, 2010. San Juan Capistrano Management and
Professional Employees Association (Union or Charging Party) alleges that the City of San
Juan Capistrano (City or Respondent) violated section 3505 of the Meyers-Milias-Brown Act
(MMBA or Act)' by unilaterally using outside contracted labor to perform bargaining unit
work.
The Union is the exclusive representative of the Management and Professional bargaining unit
at the City. The Union and the City were parties to a Memorandum of Understanding (MOU)
that expired by its own terms on June 30, 2010. The parties are currently in negotiations for a
successor MOU.
Since 1999, the City has maintained Personnel Rules concerning its employment practices.
Personnel Rule 8.06 provides:
The Personnel Officer may approve a temporary provisional
appointment in the absence of persons available for appointment
when time is of the essence for filling the vacancy. An
appointment to fill a vacancy in this manner may require hiring a
trainee, selecting a qualified individual presently not employed
by the City, or appointing an existing full time employee in an
acting status. A provisional appointment is made at the discretion
of the Personnel Officer. The appointed individual shall be
compensated within the approved salary range for the appointed
position. A provisional appointment shall be less than 12 months
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

LA-CE-643-M
March 2, 2011
Page 2
duration, and generally shall only last
of
the duration
of
the
recruitment process.
On May 19, 2010, the Union discovered for the first time that the City filled vacant bargaining
unit positions with individuals not considered to be part
of
the Union's bargaining unit. 	The
positions at issue were Senior Management Analyst, Water Resources Engineer, and Senior
Financial Analyst. The Union requested that the City meet and confer over the issue. A
meeting was scheduled for May 27, 2010.
On May 27, 2010, the City confirmed that temporary workers were performing bargaining unit
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Discussion:
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),2 PERB utilizes either the "per se" or "totality
of
the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No.
143
.)3
Unilateral
changes are considered "per se" violations
if
certain criteria are met. Those criteria are:
(1) the employer breached or altered the parties' written agreement or past practice; (2) the	(1)
action was taken without giving the exclusive representative notice or an opportunity to
bargain over the change; (3) the action is not merely an isolated incident, but amounts to a
change
of
policy (i.e., having a generalized effect or continuing impact on terms and conditions
of
employment); and (4) the change in policy concerns a matter within the scope .of
representation. (Desert Sands Unified School District (2010) PERB Decision No. 2092;
Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant Joint Union
High School District (1982) PERB Decision No. 196.)
The Union specifically alleges the City used "contract labor to fill the [above-referenced]
bargaining unit positions." PERB has found that "Contracting out is negotiable in either
of
two
circumstances: (1) where the employer simply replaces its employees with those
of
a contractor
to perform the same services under similar circumstances; or (2) where the decision was
motivated substantially by potential savings in labor costs." (State
of
California (Department
of
Veterans Affairs) (2010) PERB Decision No. 2110-S, citing Lucia Mar Unified School District
(2001) PERB Decision No. 1440.) However, as an initial matter, it is unclear from the charge
whether the City was in fact used independent contractors to perform unit work or whether the
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
LA-CE-643-M
March 2, 2011
Page 2
duration, and generally shall only last of the duration of the
recruitment process.
On May 19, 2010, the Union discovered for the first time that the City filled vacant bargaining
unit positions with individuals not considered to be part of the Union's bargaining unit. The
positions at issue were Senior Management Analyst, Water Resources Engineer, and Senior
Financial Analyst. The Union requested that the City meet and confer over the issue. A
meeting was scheduled for May 27, 2010.
On May 27, 2010, the City confirmed that temporary workers were performing bargaining unit
work. The City stated that it did not intend to bargain over the matter with the Union.
Discussion:
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c)," PERB utilizes either the "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.) Unilateral
changes are considered "per se" violations if certain criteria are met. Those criteria are:
the employer breached or altered the parties' written agreement or past practice; (2) the
action was taken without giving the exclusive representative notice or an opportunity to
bargain over the change; (3) the action is not merely an isolated incident, but amounts to a
change of policy (i.e., having a generalized effect or continuing impact on terms and conditions
of employment); and (4) the change in policy concerns a matter within the scope of
representation. (Desert Sands Unified School District (2010) PERB Decision No. 2092;
Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant Joint Union
High School District (1982) PERB Decision No. 196.)
The Union specifically alleges the City used "contract labor to fill the [above-referenced]
bargaining unit positions." PERB has found that "Contracting out is negotiable in either of two
circumstances: (1) where the employer simply replaces its employees with those of a contractor
to perform the same services under similar circumstances; or (2) where the decision was
motivated substantially by potential savings in labor costs." (State of California (Department of
Veterans Affairs) (2010) PERB Decision No. 21 10-S, citing Lucia Mar Unified School District
2001) PERB Decision No. 1440.) However, as an initial matter, it is unclear from the charge
whether the City was in fact used independent contractors to perform unit work or whether the
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CE-643-M
March 2, 2011
Page 3
City arguably transferred unit member work to temporary, non-bargaining unit positions.4
Nevertheless, PERB will address the allegations pled in the charge.
It is undisputed in this case that the City's Personnel Rules, in effect since 1999, give the City the
authority
to
make a "temporary provisional appointment" to fill vacant positions when there are
no City employees available for the position and "time is
of
the essence for filling the vacancy."
The City contends that it has been using this rule to make provisional appointments for vacant
City positions since the rule was enacted. The City further asserts that it satisfied all
of
the
elements specified in its personnel rules prior to making the provisional appointments at issue in
this case. The Union alleges that that the City began using independent contractors to fill three
vacant unit member positions. However, the Union does not establish that the City violated or
acted in excess
of
the authority established in the City's Personnel Rules. Nor does the Union
dispute that the City's Personnel Rules provide the City with the authority to make provisional
appointments
to
bargaining unit positions. Accordingly, the Union does not establish that a
violation occurred.
To the extent that the Union alleges that the policies regarding use
of
provisional labor in the
City's Personnel Rules amount to a unilateral policy change, there is again insufficient
information to establish a violation. In Stockton Police Officer's Association
v.
City
of
Stockton (1988) 206 Cal.App.3d 62, 66, the court found that an employee organization waived
the right to request negotiations after an employer provided notice
of
a proposed change and
waited three months prior to implementing the change. In this case, the Union appears to have
been aware
of
the City's Personnel Rule allowing for provisional appointments for vacant unit
positions since its inception
i11
1999. The Union requested negotiations over the matter
on
May 27, 2010, more than
10
years later. Under these circumstances, the Union does not
establish that the City was required to negotiate with the Union. Therefore, the Union fails to
establish a violation. 5
4 PERB has held that the transfer
of
work from bargaining unit employees to those in a
different or no bargaining unit is a subject within the scope
of
representation. (Rialto Unified
School District (1982) PERB Decision No. 209.) However, not all transfers of bargaining unit
work are negotiable. In Eureka City Schools (1985) PERB Decision No. 481, the Board held
that a change in the distribution
of
duties between unit and non-unit employees, where there is
an established practice
of
overlapping duties, does not always give rise to a duty to bargain. A
duty to bargain may still be found where there are negotiable effects such as a reduction
of
hours in the bargaining unit positions or
if
unit employees cease to perform the overlapping
work. 	(Ibid.; Calistoga Joint Unified School District (1989) PERB Decision No. 744.)
5 To the extent that the Union alleges that the City enacted a unilateral change when it
adopted its Personnel Rules in 1999, the Union does not establish that this allegation is timely.
PERB is prohibited from issuing a complaint with respect to any charge based upon an alleged
unfair practice occurring more than six months prior to the filing of the charge. (Coachella
Valley Mosquito and Vector Control District
v.
Public Employment Relations Board (2005) 35
Cal.4th 1072.) "In the context of a unilateral change case, PERB held, the first implementation
of the policy commences the six month period and subsequent occasions when employees are
LA-CE-643-M
March 2, 2011
Page 3
City arguably transferred unit member work to temporary, non-bargaining unit positions."
Nevertheless, PERB will address the allegations pled in the charge.
It is undisputed in this case that the City's Personnel Rules, in effect since 1999, give the City the
authority to make a "temporary provisional appointment" to fill vacant positions when there are
no City employees available for the position and "time is of the essence for filling the vacancy."
The City contends that it has been using this rule to make provisional appointments for vacant
City positions since the rule was enacted. The City further asserts that it satisfied all of the
elements specified in its personnel rules prior to making the provisional appointments at issue in
this case. The Union alleges that that the City began using independent contractors to fill three
vacant unit member positions. However, the Union does not establish that the City violated or
acted in excess of the authority established in the City's Personnel Rules. Nor does the Union
dispute that the City's Personnel Rules provide the City with the authority to make provisional
appointments to bargaining unit positions. Accordingly, the Union does not establish that a
violation occurred.
To the extent that the Union alleges that the policies regarding use of provisional labor in the
City's Personnel Rules amount to a unilateral policy change, there is again insufficient
information to establish a violation. In Stockton Police Officer's Association v. City of
Stockton (1988) 206 Cal.App.3d 62, 66, the court found that an employee organization waived
the right to request negotiations after an employer provided notice of a proposed change and
waited three months prior to implementing the change. In this case, the Union appears to have
been aware of the City's Personnel Rule allowing for provisional appointments for vacant unit
positions since its inception in 1999. The Union requested negotiations over the matter on
May 27, 2010, more than 10 years later. Under these circumstances, the Union does not
establish that the City was required to negotiate with the Union. Therefore, the Union fails to
establish a violation."
* PERB has held that the transfer of work from bargaining unit employees to those in a
different or no bargaining unit is a subject within the scope of representation. (Rialto Unified
School District (1982) PERB Decision No. 209.) However, not all transfers of bargaining unit
work are negotiable. In Eureka City Schools (1985) PERB Decision No. 481, the Board held
that a change in the distribution of duties between unit and non-unit employees, where there is
an established practice of overlapping duties, does not always give rise to a duty to bargain. A
duty to bargain may still be found where there are negotiable effects such as a reduction of
hours in the bargaining unit positions or if unit employees cease to perform the overlapping
work. (Ibid.; Calistoga Joint Unified School District (1989) PERB Decision No. 744.)
To the extent that the Union alleges that the City enacted a unilateral change when it
adopted its Personnel Rules in 1999, the Union does not establish that this allegation is timely.
PERB is prohibited from issuing a complaint with respect to any charge based upon an alleged
unfair practice occurring more than six months prior to the filing of the charge. (Coachella
Valley Mosquito and Vector Control District v. Public Employment Relations Board (2005) 35
Cal.4th 1072.) "In the context of a unilateral change case, PERB held, the first implementation
of the policy commences the six month period and subsequent occasions when employees are

LA-CE-643-M
March 2, 2011
Page 4
For these reasons the charge, as presently written, does not state a prima facie case.6
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty .of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand corner
of
the charge form. 	The amended charge must be
served on the Respondent's representative and the original proof
of
service must be filed with
PERB.
	If
an amended charge or withdrawal is not filed on or before March 11, 2011, 7 PERE
will dismiss your charge. If you have any questions, please call me at the above telephonenumber.
will dismiss your charge. 	If you have any questions, please call me at the above telephone
Sincerely
Eric J. Cu
Regional Attorney
EC
required to adhere to the policy, so long as it does not change, do not revive the violation."
(State
of
California (Department
of
Consumer Affairs) (1994) PERB Decision No. 1066-S,
citing El Dorado Union High School District (1984) PERB Decision No. 3 82.)
6 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
7 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)
LA-CE-643-M
March 2, 2011
Page 4
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of Charging Party. The amended charge must have the case
number written on the top right hand corner of the charge form. The amended charge must be
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before March 1 1, 2011, PERB
number.
Regional Attorney
EC
required to adhere to the policy, so long as it does not change, do not revive the violation."
(State of California (Department of Consumer Affairs) (1994) PERB Decision No. 1066-S,
citing El Dorado Union High School District (1984) PERB Decision No. 382.)
"In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
"A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)