County of Riverside (PERB 2307M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-702-M
PERB Decision No. 2307-M
March
1,
2013
Appearances: 	Weinberg, Roger & Rosenfeld by Alan Crowley, Attorney, for Service
Employees International Union, Local 721; Zappia Law Firm by Day B. Hadaegh, Attorney,
for County
of
Riverside.
and	Before Martinez, Chair; Huguenin 	Winslow, Members.
DECISION
before	MARTINEZ, Chair: This case is 	the Public Employment Relations Board
(PERB or Board) on appeal by the Service Employees International Union, Local 721 (SEID)
from the dismissal
of
its unfair practice charge. The charge, as amended, alleged that the
County
of
Riverside (County) violated the Meyers-Milias-Brown Act (MMBA)1 by
unilaterally changing the policy regarding compensation paid to employees on approved union
released time. The Office
of
the General Counsel found that certain
of
the allegations were
untimely and the remaining allegations failed to state a prima facie case
of
unlawful unilateral
change.
The Board has reviewed the record in its entirety and given full consideration to SEIU's
appeal and the County's response thereto. Based on this review, the Board reverses the
1 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
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party,
V .
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-702-M
PERB Decision No. 2307-M
March 1, 2013
Appearances: Weinberg, Roger & Rosenfeld by Alan Crowley, Attorney, for Service
Employees International Union, Local 721; Zappia Law Firm by Day B. Hadaegh, Attorney,
for County of Riverside.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
efore	MARTINEZ, Chair: This case is b 	the Public Employment Relations Board
(PERB or Board) on appeal by the Service Employees International Union, Local 721 (SEIU)
from the dismissal of its unfair practice charge. The charge, as amended, alleged that the
County of Riverside (County) violated the Meyers-Milias-Brown Act (MMBA) by
unilaterally changing the policy regarding compensation paid to employees on approved union
released time. The Office of the General Counsel found that certain of the allegations were
ntimely and the remaining allegations failed to state a prima facie case of unlawful unilateral	u
change.
The Board has reviewed the record in its entirety and given full consideration to SEIU's
appeal and the County's response thereto. Based on this review, the Board reverses the
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

dismissal of the charge and remands this case to the Office of the General Counsel for issuance
of a complaint for the reasons discussed below.
BACKGROUND2
SEIU is the exclusive representative for approximately 6,000 employees employed by
the County, a public agency. 	SEIU and the County are parties to a memorandum of
understanding (MOU) effective July 1, 2010 through June 30, 2011.
In January 2011, the parties began preparations for successor agreement negotiations.
In March 2011, negotiations for the nine bargaining units commenced. During the 2011
negotiations, the County released employees to attend negotiations. As alleged, "[t]he
established practice between the parties is that employees released for negotiations were paid
their regular wages, including any differentials or special pay premiums, in the same manner as
if the time were actually worked at their work site." The charge alleges that this was the
practice for many years and it applied to SEID-represented employees "released for union
activities, such as collective bargaining."
By letter dated February 11, 2011, SEIU' s Regional Director, Steve Matthews provided
Brian McArthur, director of employee relations with the County's Human Resources office,
with a document entitled "Notice of Demand to Cease and Desist Unilateral Changes." This
letter included a list of unilateral changes alleged to have been made by the County, including
changes "made to the method and manner by which Union release time is utilized."
On March 11, 2011, Larry Grotefend (Grotefend), captain in the Dispatch Center of the
County's Sheriff's Department, sent an e-mail to Wendy Thomas (Thomas), an employee in
This summary includes relevant undisputed facts provided by the County. (Service
Employees International Union #790 (Adza) (2004) PERB Decision No. 1632-M.) The
County's written responses were made under penalty of perjury in compliance with PERB's
regulatory scheme. (PERB Reg. 32620, subd. (c) [any written response to a charge must be
signed under penalty of perjury by the party or its agent with the declaration that the response
is true and complete to the best of the respondent's knowledge and belief; PERB Regulations
can be found at Cal. Code Regs., tit. 8, sec. 31001 et seq.].)
2
dismissal of the charge and remands this case to the Office of the General Counsel for issuance
of a complaint for the reasons discussed below.
BACKGROUND
SEIU is the exclusive representative for approximately 6,000 employees employed by
the County, a public agency. SEIU and the County are parties to a memorandum of
understanding (MOU) effective July 1, 2010 through June 30, 2011.
In January 2011, the parties began preparations for successor agreement negotiations.
In March 2011, negotiations for the nine bargaining units commenced. During the 201 1
negotiations, the County released employees to attend negotiations. As alleged, "[the
established practice between the parties is that employees released for negotiations were paid
their regular wages, including any differentials or special pay premiums, in the same manner as
if the time were actually worked at their work site." The charge alleges that this was the
practice for many years and it applied to SEIU-represented employees "released for union
activities, such as collective bargaining."
By letter dated February 11, 2011, SEIU's Regional Director, Steve Matthews provided
Brian McArthur, director of employee relations with the County's Human Resources office,
with a document entitled "Notice of Demand to Cease and Desist Unilateral Changes." This
letter included a list of unilateral changes alleged to have been made by the County, including
changes "made to the method and manner by which Union release time is utilized."
On March 11, 2011, Larry Grotefend (Grotefend), captain in the Dispatch Center of the
County's Sheriff's Department, sent an e-mail to Wendy Thomas (Thomas), an employee in
This summary includes relevant undisputed facts provided by the County. (Service
Employees International Union #790 (Adza) (2004) PERB Decision No. 1632-M.) The
County's written responses were made under penalty of perjury in compliance with PERB's
regulatory scheme. (PERB Reg. 32620, subd. (c) [any written response to a charge must be
signed under penalty of perjury by the party or its agent with the declaration that the response
is true and complete to the best of the respondent's knowledge and belief; PERB Regulations
can be found at Cal. Code Regs., tit. 8, sec. 31001 et seq.].)
2

the Sheriffs Department, approving released time requested by SEIU on Thomas' behalf forthe Sheriff's Department, approving released time requested by SEIU on Thomas' behalf for
collective bargaining sessions on March 10, 14 and 15, 2011. The e-mail stated:	collective bargaining sessions on March 10, 14 and 15, 2011. The e-mail stated:
These functions are considered collective bargaining
opportunities for Wendy Thomas; therefore there will be no loss
in pay to the employee providing the Department also approves
the employee's attendance to this union function.
[7 . . .1]
FOR PAYROLL PURPOSES:
The employee's timesheet should be reported with the approved
hours utilizing the SEIU time reporting code UNSEU.
By e-mail dated March 15, 2011, Grotefend responded to an inquiry from Thomas
regarding shift differential pay for Educational Training. The e-mail stated:
The direction the Department has received from County HR is:
"As to the shift differential, the County's position is that
employees off work for union release time are not eligible to
receive any."
Sheriffs payroll made the following changes to your 344.
"Attached please find a copy of Wendy Thomas's 344 for PP05
on which the shift differential was adjusted and paid to her due to
being absent from work to attend Educational Training."
On 2/15 the ZOl was reduced to 2.0 hours as the training was
held between 1600 and 2000. 	On 2/20 all Shift Differential was
removed as she indicated the entire 12 hour shift under the
UNSEU code, and did not work any hours of her scheduled shift.
In March 2011, the County began paying employees engaged in negotiations base
wages only, instead of full wages including differentials or special pay premiums they would
have earned but for their participation in formal negotiations.3 During active negotiations, on
March 15, 2011, the County made an initial proposal to amend the provision of the MOU
The amended charge identifies grievance meetings, Regional Council meetings, and
Education and Training Release Time meetings as three other types of union activities, in
addition to formal negotiations, for which the· County stopped paying employees their full
wages in March 2011.
The amended charge identifies grievance meetings, Regional Council meetings, and
Education and Training Release Time meetings as three other types of union activities, in
addition to formal negotiations, for which the County stopped paying employees their full
wages in March 2011.
33

governing shift differentials to add "Union Release Time" to the list of leave categories exempt
from the application of shift differentials. 	That list included vacation, sick leave, holiday pay,
call and standby duty.
The County asserts that it did not know how SEIU members had been paid in the past
when released for formal negotiations. The bargaining history, as alleged, however, is that
SEIU and the County negotiated agreements in 2009 and 2010; that SEIU had 10 to 15
employees on its bargaining team; and that the County paid full wages including differentials
or special premium pay to employees on union released time. 	SEIU allegedthat because new
released time provisions were negotiated in 2009 and 2010, the Countyhad to have known
how employees were being paid.
On March 17, 2011, a grievance petition was filed with the County on behalf of" All
SEID represented classifications" by Thomas with Communications Manager HeatherWoods
in the Sheriff's Department. The grievance states, in pertinent part:
Citing direction received from County HR, Sheriff's payroll
implemented unilateral changes, absent a Meet & Confer process,
to the payment of shift differentials for SEID represented
employees using the time reporting code of UN SEU for
participation in union activities. 	Shift differentials were removed
from the grievant on two (2) separate occasions in PP#0S-2011
under the justification that shift differentials would now only be
applied to, and hence paid for, regular hours actually worked at
the grievant's worksite and not for hours worked during paid
release time for participation in union activities. . . . Release time
for union activities has a separate payroll time reporting code for
tracking purposes only. 	It is reported and compensated as regular
hours worked on the pay advice. [4l
" The amended charge explains that in late Fall 2010, the County informed SEIDthat
employees released for union meetings would be required to identify such activitieson their
timesheets by a time-tracking code called UNSEU. As alleged, the County stated that it would
not bargain with SEIU about implementation of the UN SEU time-tracking codes because the
coding was not going to reduce employee compensation.
4

5
On April 25, 2011, the grievance was denied at Step 1 with the following notation:	On April 25, 2011, the grievance was denied at Step 1 with the following notation:
"Denied pursuant to guidance of HR." After a Step 2 meeting on May 24, 2011, the County	"Denied pursuant to guidance of HR." After a Step 2 meeting on May 24, 2011, the County
denied the grievance in a decision dated June 9, 2011. The County's position as stated in the	denied the grievance in a decision dated June 9, 2011. The County's position as stated in the
decision	decision was as follows:	was as follows:
[S]hift differential pay is intended to compensate employees for	[S]hift differential pay is intended to compensate employees for
evening and night shift work where they are performing their	evening and night shift work where they are performing their
regularly assigned duties. The language has historically been	regularly assigned duties. The language has historically been
interpreted in that manner, and was never intended to compensate	interpreted in that manner, and was never intended to compensate
employees for time spent performing union activities, mandatory	employees for time spent performing union activities, mandatory
meetings, or educational training that go beyond the regularly	meetings, or educational training that go beyond the regularly
scheduled work hours.	scheduled work hours.
19 . . . 1
As of January of 2010, a new payroll code was created to track
time spent by County employees participating in union activities.
Prior to this code being created, if an employee was away from
the office participating in union activities on county time, the
time was reported as regular hours worked. With the inception of
the new time reporting code, the supervisor/manager can easily
decipher between regular hours worked and union activity hours.
In the grievant's. case, the manager/supervisor was able to readily
discern that the hours were spent at contract negotiations which
formed the basis for the denial of the premium pay because she
was not actually working in her regular capacity of dispatch
operator.
The County's conclusions in the Step 2 decision were based on two grounds. First, the
County asserted that to be eligible for the shift differential under the MOU, the employee must
satisfy two factors: 	"(1) they must be working their regularly scheduled shift and (2) they must	satisfy two factors: "(1) they must be working their regularly scheduled shift and (2) they must
qualify for the differential." The phrase "regularly scheduled shift" in the MOU "is interpreted	qualify for the differential." The phrase "regularly scheduled shift" in the MOU "is interpreted
to imply that work performed in the normal course of her shift is eligible for differential pay."	to imply that work performed in the normal course of her shift is eligible for differential pay."
Second, the County asserted that SEIU's "long-standing past practice" claim fails because the	Second, the County asserted that SEIU's "long-standing past practice" claim fails because the
grievance procedure is not the proper forum for such disputes; PERB has exclusive initial	grievance procedure is not the proper forum for such disputes; PERB has exclusive initial
jurisdiction over violations of the MMBA; and, even if jurisdiction were not an issue, "in order	jurisdiction over violations of the MMBA; and, even if jurisdiction were not an issue, "in order
5

for a past practice argument to prevail, there must be mutual awareness of a binding practice."
As to this final point, the Step 2 decision states:
A party may not be bound by that which it did not know to exist
and therefore has neither accepted nor condoned. The department
clearly was unaware of the practice and ceased the improper
payment once it came to their attention.
The Step 2 decision concludes:
Grievance is therefore denied on the basis that the MOU is clear
in defining perimeters [sic] for paying shift differential, union
activities and past practices have dictated proper application.
The County's response to the amended charge states that "all of the grievances
regarding the payment of [the] shift differential" were moved to Step 3 of the grievance
procedure. Step 3 involves advisory arbitration. The MOU provides that the Board of
Supervisors shall either accept or reject the decision of the arbitrator, or accept only a
part. The decision of the Board of Supervisors is final.
The MOU states, in pertinent part:
ARTICLE 4
WORKWEEK, OVERTIME AND PREMIUM PAY
Section 1. 	Workweek
[1 . . .
Section 2. 	Overtime
[9 . ..
Section 3. 	Premium Pay
A. 	Call Duty - General. . . .
[S . . . 10)
B. 	Minimum Overtime on Call-Back. ...
IT . . .
66

C. 	Shift Differentials
1.	1. Applicability of Shift Differentials. S	Applicability of Shift Differentials. Shift differentials do not
apply to vacation, sick leave, holiday pay, call or standby
duty. The hourly rate for each shift differential is payable in
tenths of an hour. Employees who work day shift between the
hours of 7:00 a.m. to 6:00 p.m. shall not be entitled to a shift
differential.
Classes not eligible for shift differentials. Employees in
positions of all the following classes shall not be paid a night
shift differential:
Physician I, II, III 	Psychiatrist I, II, III 	Psychiatrist IM, IIM, IIIM
2. 	Evening Shift - General. County employees whose classes are not
specifically mentioned below, working their regularly scheduled shift
that ends after 6:00 p.m. and who perform work between the hours of
3:00 p.m. and 11 :30 p.m., shall be paid a night differential of sixty
cents ($0.60) per hour for the time actually worked between 3:00
p.m. and 11 :30 p.m.l5
p.m. and 11:30 p.m. l
19 . . . 10
ARTICLE 31
UNION RIGHTS
[ . ..
Section 2. Separate Payroll Deduction and Time Reporting Codes
19 . ..
B. 	Release Time. The County agrees to provide SEIU with two (2)
separate payroll codes for union related release time. The County
shall provide SEIU with monthly reports on the use of the
UNSEU time reporting code (TRC), by employee name, county
employee identification number, job class title and department.
The language of the MOU regarding the evening shift differential is included as one
example of the types of differentials provided for in this section. The other types include night
shift differential, command post shift differential, specialty differential, preceptor differential,
bilingual differential, psychiatrist differential, professional engineer differential, inconvenience
differential, female prisoner search and meal service differential, POST certification
differential, hazardous materials management specialist differential, equipment operator
differential, class "A" or "B" license differential and certification differential.
The language of the MOU regarding the evening shift differential is included as one
example of the types of differentials provided for in this section. The other types include night
shift differential, command post shift differential, specialty differential, preceptor differential,
bilingual differential, psychiatrist differential, professional engineer differential, inconvenience
differential, female prisoner search and meal service differential, POST certification
differential, hazardous materials management specialist differential, equipment operator
differential, class "A" or "B" license differential and certification differential.
7

The following payroll code shall be established for use:
SEIUP - Release Time to be reimbursed by SEIU Local 721
Section
6.
	Education and Training Release Time
The County agrees to release SEIU represented employees for
Union related education and training activities not to exceed an
aggregate total
of
twenty (20) minutes per represented employee
per calendar year. 	Time spent training Stewards in the grievance
procedure through the providing
of
release time to prepare for
grievance/administrative interviews and Skelly hearings, will be
charged to this Article/Section. The parties agree that up to fifty
percent (50%)
of
this bank may be used for Steward activities.
Section
7.
	Stewards
There shall be no union activity on County time or premises
except as provided for in this MOU. A Steward is permitted to
administrative interviews, or	represent SEIU in grievances,
Skelly hearings, consistent with the representational rights
granted by the Meyers-Milias-Brown Act. Stewards shall not be
permitted to request preparation time pursuant to this Article. A
Steward will not absent him/herself from his/her work without
first obtaining the permission
of
the Department/District.
...
Except as outlined below, the Steward will not be paid his/her
regular wages while conducting steward business but will be
permitted to use accumulated vacation and/or compensatory time,
provided the use
of
such time does not result in the payment
of
overtime during the workweek in question. County will not pay
for, nor shall the Steward be entitled to make any claim for, time
spent on steward business during the Steward's non-regular
working hours or for time spent on other union matters including,
but not limited to, arbitration, PERB hearings, court, or
depositions.
Section 10. Release Time for SEIU Local 721 Regional Council
Meetings
8
Up to eight (8) County employees, who are authorized
representatives of SEIU Local 721, shall be entitled to be released
on one (1) regularly scheduled shift per month for the purpose of
(9 . . . 1
depositions.
CT . . .
8
The following payroll code shall be established for use:
SEIUP - Release Time to be reimbursed by SEIU Local 721
(9 . . . 10)
Section 6. Education	ect	S 	ion 6. Education and T
County agrees to	The 	release SEIU represented employees for
Union related education and training activities not to exceed an
aggregate total of twenty (20) minutes per represented employee
per calendar year. Time spent training Stewards in the grievance
procedure through the providing of release time to prepare for
grievance/administrative interviews and Skelly hearings, will be
charged to this Article/Section. The parties agree that up to fifty
percent (50%) of this bank may be used for Steward activities.
Section 7. Stewards
There shall be no union activity on County time or premises
except as provided for in this MOU. A Steward is permitted to
represent SEIU in grievances, administrative interviews, or
Skelly hearings, consistent with the representational rights
granted by the Meyers-Milias-Brown Act. Stewards shall not be
permitted to request preparation time pursuant to this Article. A
Steward will not absent him/herself from his/her work without
first obtaining the permission of the Department/District. . . .
Except as outlined below, the Steward will not be paid his/her
regular wages while conducting steward business but will be
permitted to use accumulated vacation and/or compensatory time,
provided the use of such time does not result in the payment of
overtime during the workweek in question. County will not pay
for, nor shall the Steward be entitled to make any claim for, time
spent on steward business during the Steward's non-regular
working hours or for time spent on other union matters including,
but not limited to, arbitration, PERB hearings, court, or
Release Time for SEIU Local 721 Regional Council	Section 10.
Meetings
Up to eight (8) County employees, who are authorized
representatives of SEIU Local 721, shall be entitled to be released
on one (1) regularly scheduled shift per month for the purpose of

traveling to and attending the monthly meeting. Any hours used
to attend such meetings which are in excess
of
those provided
under the provisions
of
this section shall be taken without pay or
charged against the appropriate representative's paid leave banks.
SEIU agrees to provide the County with a minimum
of
two (2) month's
advance notice for release time under this provision.
is	It 	not the intent
of
this provision to create any additional overtime
obligations to the County.
for	Section 11. Release Time 	SEIU Local 721 Executive Board
Meetings
Up to five (5) County employees, who are elected or appointed to the
position
of
SEIU Local
721
Vice President, At-Large Vice President,
Treasurer, Secretary, or Executive Board member shall be entitled to be
released on one (
1)
regularly scheduled shift per month for the purpose
of
traveling to and attending the monthly meeting. Any hours used to
attend such meetings under the provisions
of
this section shall be taken
as an approved leave
of
absence charged against the appropriate
representative's paid leave banks or the employee may remain on the
County payroll and SEIU shall be obligated to reimburse the County
based on actual costs for salary and benefits. The County will provide
the Union with a detailed breakdown
of
these costs and said funds shall
be paid by the Union upon receipt
of
bill.
of
	Section 12. Release Time for the President 	SEIU Local 721
The Union shall have the option to cause the County to release an
employee elected or appointed to the position
of
President
of
SEIU
Local 721 for full time work with the Union, while remaining on the
County payroll. 	SEIU shall be obligated to reimburse the County. 	The
reimbursement amount for the presidential leave shall be based on actual
costs for salary and benefits with a detailed breakdown
of
these costs
provided to the Union at least on a quarterly basis. Said funds shall be
paid by the Union upon receipt of bill.
Upon return to full time work with the County, the employee shall only
be entitled to return to their established classification and rate of pay.
The County is not obligated to return the employee to their previous
work assignment.
(2)	SEIU agrees to provide the County with a minimum of two 	month's
advance notice for release time under this provision.
9
(9 . . .
The Union shall have the option to cause the County to release an
employee elected or appointed to the position of President of SEIU
Local 721 for full time work with the Union, while remaining on the
County payroll. SEIU shall be obligated to reimburse the County. The
reimbursement amount for the presidential leave shall be based on actual
costs for salary and benefits with a detailed breakdown of these costs
provided to the Union at least on a quarterly basis. Said funds shall be
paid by the Union upon receipt of bill.
Upon return to full time work with the County, the employee shall only
be entitled to return to their established classification and rate of pay.
The County is not obligated to return the employee to their previous
work assignment.
9
traveling to and attending the monthly meeting. Any hours used
to attend such meetings which are in excess of those provided
under the provisions of this section shall be taken without pay or
charged against the appropriate representative's paid leave banks.
SEIU agrees to provide the County with a minimum of two (2) month's
advance notice for release time under this provision.
It is not the intent of this provision to create any additional overtime
obligations to the County.
E	for	Section 11. Release Time	Section 11. Release Time for S
Meetings
Up to five (5) County employees, who are elected or appointed to the
position of SEIU Local 721 Vice President, At-Large Vice President,
Treasurer, Secretary, or Executive Board member shall be entitled to be
released on one (1) regularly scheduled shift per month for the purpose
of traveling to and attending the monthly meeting. Any hours used to
attend such meetings under the provisions of this section shall be taken
as an approved leave of absence charged against the appropriate
representative's paid leave banks or the employee may remain on the
County payroll and SEIU shall be obligated to reimburse the County
based on actual costs for salary and benefits. The County will provide
the Union with a detailed breakdown of these costs and said funds shall
be paid by the Union upon receipt of bill.
Section 12. Release Time for the President of SEIU Local 721
SEIU agrees to provide the County with a minimum of two (2) month's
advance notice for release time under this provision.

The unfair practice charge was filed on June 28, 2011, and amended on February 24,
2012. 	On April 10, 2012, the Office
of
the General Counsel dismissed the charge. 	SEIU filed
a timely appeal on May 4, 2012, and the County filed a timely opposition on May 24, 2012.
THE DISMISSAL OF THE UNFAIR PRACTICE CHARGE
The Office
of
the General Counsel dismissed the charge on the following grounds.
New factual allegations in the amended charge regarding the County's failure to pay shift
differentials or special pay premiums for union activities apart from formal negotiations,
specifically grievance representation meetings, Regional Council meetings and Education and
Training Release Time meetings, were dismissed as untimely. 	Similarly, new allegations in
the amended charge regarding implementation
of
the UNSEU time-tracking code were also
dismissed as untimely. The Office
of
the General Counsel concluded that even
if
these
allegations were timely, they failed to state a prima facie violation.
facie	The remaining allegations were dismissed for failure to state a prima 	case
of
unlawful unilateral change. Regarding the element
of
change in policy, the Office
of
the
General Counsel concluded that the charge failed to identify any language in Article
31
of
the
MOU that requires the County to grant, let alone pay for, released time for negotiations; and to
the extent the County paid any wages to the employees on released time for negotiations, the
County was paying more than the MOU required, citing Marysville Joint Unified School
District (1983) PERB Decision No. 314 (Marysville). 	The allegations
of
past practice were
dismissed as conclusory. Regarding the element of generalized impact versus isolated breach,
the Office
of
the General Counsel concluded that the charge failed to show what the County
said when it stopped paying premium wages to some employees and therefore it was unclear
whether the County's action was based on facts unique to a few employees.
10
The unfair practice charge was filed on June 28, 2011, and amended on February 24,
2012. On April 10, 2012, the Office of the General Counsel dismissed the charge. SEIU filed
a timely appeal on May 4, 2012, and the County filed a timely opposition on May 24, 2012.
THE DISMISSAL OF THE UNFAIR PRACTICE CHARGE
The Office of the General Counsel dismissed the charge on the following grounds.
New factual allegations in the amended charge regarding the County's failure to pay shift
differentials or special pay premiums for union activities apart from formal negotiations,
specifically grievance representation meetings, Regional Council meetings and Education and
Training Release Time meetings, were dismissed as untimely. Similarly, new allegations in
the amended charge regarding implementation of the UNSEU time-tracking code were also
dismissed as untimely. The Office of the General Counsel concluded that even if these
allegations were timely, they failed to state a prima facie violation.
The remaining allegations were dismissed for failure to state a prima facie case of
unlawful unilateral change. Regarding the element of change in policy, the Office of the
General Counsel concluded that the charge failed to identify any language in Article 31 of the
MOU that requires the County to grant, let alone pay for, released time for negotiations; and to
the extent the County paid any wages to the employees on released time for negotiations, the
County was paying more than the MOU required, citing Marysville Joint Unified School
District (1983) PERB Decision No. 314 (Marysville). The allegations of past practice were
dismissed as conclusivegarding the element of generalized impact versus isolated breach,
the Office of the General Counsel concluded that the charge failed to show what the County
said when it stopped paying premium wages to some employees and therefore it was unclear
whether the County's action was based on facts unique to a few employees.

SEIU' S APPEAL
SEIU argues that the Office
of
the General Counsel erred in failing to analyze MMBA
section 3505.3, which requires public agencies to allow employee representatives
of
an
employee organization reasonable time off to meet and confer "without loss
of
compensation
or other benefits." SEIU also argues that the allegations as a whole are sufficient to state a
prima facie case
of
unlawful unilateral change. SEIU further argues that the allegations
dismissed as untimely relate back to the initial charge. Specifically, SEIU contends that while
the initial charge does not set forth other types
of
union activities subject to released time apart
from formal negotiations, they are set forth in Article
31
of
the MOU, a copy
of
which was
attached to the initial charge and referenced therein. Also, the allegations in the amended
charge about the time-tracking code, UNSEU, were included to clarify the mechanism used by
the County to stop paying full wages including shift differentials or special pay premiums to
employees on union released time.6
THE COUNTY'S OPPOSITION TO SEIU'S APPEAL
The County's opposition to the appeal incorporates arguments made in response to the
initial charge and the amended charge. According to the County, the MOU is clear and
unambiguous. Article 4, Section 3(C) "clearly provides that shift differentials exclusively
apply to 'employees working their regularly scheduled shift."' Article 4, Section 3(C)(l)
reinforces the County's position that only employees who are "actually working" qualify for
shift differentials and other premium pay because shift differentials are not applicable to
in	The appeal also takes issue with an "insinuation" 	the dismissal letter that the
amended charge was untimely filed. 	SEIU counters with a copy of an e-mail string between
counsel for SEIU and a Board agent concerning the timeframe for filing the amended charge,
attached as exhibit 5 to the appeal. Because the dismissal letter summarized and analyzed the
allegations in the amended charge, rather than rejecting the amended charge as untimely filed,
it is unnecessary to further address this issue. In raising this issue, SEIU asked the Board to
compare exhibit five to exhibit nine, but there were only five exhibits filed with the appeal.
11
SEIU'S APPEAL
SEIU argues that the Office of the General Counsel erred in failing to analyze MMBA
section 3505.3, which requires public agencies to allow employee representatives of an
employee organization reasonable time off to meet and confer "without loss of compensation
or other benefits." SEIU also argues that the allegations as a whole are sufficient to state a
prima facie case of unlawful unilateral change. SEIU further argues that the allegations
dismissed as untimely relate back to the initial charge. Specifically, SEIU contends that while
the initial charge does not set forth other types of union activities subject to released time apart
from formal negotiations, they are set forth in Article 31 of the MOU, a copy of which was
attached to the initial charge and referenced therein. Also, the allegations in the amended
charge about the time-tracking code, UNSEU, were included to clarify the mechanism used by
the County to stop paying full wages including shift differentials or special pay premiums to
employees on union released time.
THE COUNTY'S OPPOSITION TO SEIU'S APPEAL
11
The County's opposition to the appeal incorporates arguments made in response to the
initial charge and the amended charge. According to the County, the MOU is clear and
unambiguous. Article 4, Section 3(C) "clearly provides that shift differentials exclusively
apply to 'employees working their regularly scheduled shift."" Article 4, Section 3(C)(1)
reinforces the County's position that only employees who are "actually working" qualify for
shift differentials and other premium pay because shift differentials are not applicable to
" The appeal also takes issue with an "insinuation" in the dismissal letter that the
amended charge was untimely filed. SEIU counters with a copy of an e-mail string between
counsel for SEIU and a Board agent concerning the timeframe for filing the amended charge,
attached as exhibit 5 to the appeal. Because the dismissal letter summarized and analyzed the
allegations in the amended charge, rather than rejecting the amended charge as untimely filed,
it is unnecessary to further address this issue. In raising this issue, SEIU asked the Board to
compare exhibit five to exhibit nine, but there were only five exhibits filed with the appeal.

employees who are on vacation, sick leave, holiday pay, call or standby duty. Even
if
PERB
finds that the MOU is ambiguous, argues the County, SEIU has failed to establish the elements
of
a binding past practice
of
paying shift differentials or special pay premiums to employees on
union released time; or, that
if
such payments were made, they were made intentionally or
were not a mere inadvertent oversight.
Further, the County contends that the new allegations in the amended charge are
untimely in that they
do
not relate back to the initial charge. The County also contends that
SEIU failed to exhaust its administrative remedy, citing to Educational Employment Relations
Act (EERA)7 section 3541.5, subdivision (a)(2), which prohibits PERB from issuing a
complaint against conduct arguably also prohibited by the contract until the grievance
machinery has been exhausted by settlement or binding arbitration. 8
one	The County makes 	new argument on appeal. The County asserts that SEIU' s
appeal does not comply with PERB Regulation 32635, subdivision (a), which requires that the
charging party identify specific errors made by the Board agent in the dismissal.
DISCUSSION
The County's procedural arguments regarding the sufficiency
of
the appeal and deferral
of
the charge lack merit. We dispose
of
them briefly here before proceeding to a discussion
of
the two main issues on appeal, i.e., whether the new allegations in the amended charge are
timely and whether the charge allegations are sufficient to state a prima facie violation
of
the
MMBA. First, the County is correct to point out that the appeal does not identify the page
of
7 EERA is codified at section 3540 et seq.
8 filed on May 24, 2012, the County notes that 13 days	In its opposition to the appeal
after the appeal was filed, on May 17, 2012, SEIU's grievance concerning the shift differential
issue proceeded to advisory arbitration.
12	12
employees who are on vacation, sick leave, holiday pay, call or standby duty. Even if PERB
finds that the MOU is ambiguous, argues the County, SEIU has failed to establish the elements
of a binding past practice of paying shift differentials or special pay premiums to employees on
union released time; or, that if such payments were made, they were made intentionally or
were not a mere inadvertent oversight.
Further, the County contends that the new allegations in the amended charge are
untimely in that they do not relate back to the initial charge. The County also contends that
SEIU failed to exhaust its administrative remedy, citing to Educational Employment Relations
Act (EERA)' section 3541.5, subdivision (a)(2), which prohibits PERB from issuing a
complaint against conduct arguably also prohibited by the contract until the grievance
ma	machinery has been exhausted by settlement or binding arbitration
The County makes one new argument on appeal. The County asserts that SEIU's
appeal does not comply with PERB Regulation 32635, subdivision (a), which requires that the
harging party identify specific errors made by the Board agent in the dismissal.	c
DISCUSSION
The County's procedural arguments regarding the sufficiency of the appeal and deferral
of the charge lack merit. We dispose of them briefly here before proceeding to a discussion of
the two main issues on appeal, i.e., whether the new allegations in the amended charge are
timely and whether the charge allegations are sufficient to state a prima facie violation of the
MMBA. First, the County is correct to point out that the appeal does not identify the page of
EERA is codified at section 3540 et seq.
In its opposition to the appeal filed on May 24, 2012, the County notes that 13 days
after the appeal was filed, on May 17, 2012, SEIU's grievance concerning the shift differential
issue proceeded to advisory arbitration.

the dismissal to which the appeal is taken. To satisfy the requirements
of
PERB
Regulation 32635, subdivision (a), the appeal must sufficiently place the Board and the
respondent "on notice
of
the issues raised on appeal." (State Employees Trade Council United
(2009) PERB Decision No. 2069-H; City & County
of
San Francisco (2009) PERB Decision
No. 2075-M.) SEIU's appeal meets this standard. 	Therefore, the appeal is not subject to
denial for failure to comply with PERB Regulation 32635, subdivision (a).
In addition, the charge is not subject to deferral. Under the MMBA, deferral to
arbitration is governed by PERB Regulation 32620, subdivision (b)(6), which empowers a
Board agent to first place a charge in abeyance
if
the dispute is subject to final and binding
arbitration pursuant to a collective bargaining agreement, and then to dismiss the charge
at
the
conclusion
of
the arbitration process unless the charging party demonstrates that the settlement
or arbitration award is repugnant. 	The dispute here is subject to advisory arbitration, not final
and binding arbitration and, therefore, deferral to arbitration is not appropriate under the plain
meaning
of
the regulation. An unfair practice charge will not be dismissed unless the
underlying dispute is subject to final and binding arbitration.
I.
	Timeliness
of
the New Allegations in the Amended Charge
PERB Regulation 32620, subdivision (b)(5), requires dismissal
of
a charge or any part
thereof
if
it is determined that the charge is based upon conduct occurring more than six
months prior to the filing
of
the charge. A charging party bears the burden
of
demonstrating
that the charge is timely filed. (County
of
Sonoma (2012) PERB Decision No. 2242-M.) 	The
statute oflimitations is an element
of
the charging party's prima facie case. (Long Beach
Community College District (2009) PERB Decision No. 2002.) The limitations period begins
to run once the charging party knows, or should have known, of the conduct underlying the
charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177.)
13	13
the dismissal to which the appeal is taken. To satisfy the requirements of PERB
Regulation 32635, subdivision (a), the appeal must sufficiently place the Board and the
respondent "on notice of the issues raised on appeal." (State Employees Trade Council United
(2009) PERB Decision No. 2069-H; City & County of San Francisco (2009) PERB Decision
No. 2075-M.) SEIU's appeal meets this standard. Therefore, the appeal is not subject to
denial for failure to comply with PERB Regulation 32635, subdivision (a).
In addition, the charge is not subject to deferral. Under the MMBA, deferral to
arbitration is governed by PERB Regulation 32620, subdivision (b)(6), which empowers a
Board agent to first place a charge in abeyance if the dispute is subject to final and binding
arbitration pursuant to a collective bargaining agreement, and then to dismiss the charge at the
conclusion of the arbitration process unless the charging party demonstrates that the settlement
or arbitration award is repugnant. The dispute here is subject to advisory arbitration, not final
and binding arbitration and, therefore, deferral to arbitration is not appropriate under the plain
meaning of the regulation. An unfair practice charge will not be dismissed unless the
underlying dispute is subject to final and binding arbitration.
I. 	Timeliness of the New Allegations in the Amended Charge
PERB Regulation 32620, subdivision (b)(5), requires dismissal of a charge or any part
thereof if it is determined that the charge is based upon conduct occurring more than six
months prior to the filing of the charge. A charging party bears the burden of demonstrating
that the charge is timely filed. (County of Sonoma (2012) PERB Decision No. 2242-M.) The
statute of limitations is an element of the charging party's prima facie case. (Long Beach
Community College District (2009) PERB Decision No. 2002.) The limitations period begins
to run once the charging party knows, or should have known, of the conduct underlying the
charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177.)

The statute
of
limitations for new allegations contained in an amended charge begins to
run based upon the filing date
of
the amended charge (Sacramento City Teachers Association
(Marsh) (2001) PERB Decision No. 1458) unless the new allegations in the amended charge
relate back to the original allegations in the initial charge. (Sacramento City Teachers
the	Association (Franz) (2008) PERB Decision No. 1959.) An amended charge relates back to
initial charge only when it clarifies facts originally alleged in the initial charge or adds a new
legal theory based on facts originally alleged in the initial charge. (Ibid.)
Here, the amended charge was filed on February 24, 2012. The limitations period for
new allegations contained in the amended charge extends back six months from the date
of
filing to August 24, 2011. The new allegations concern conduct that allegedly occurred in
March 2011, so therefore these allegations would fall outside the limitations period, unless an
exception applies.
The new allegations in the amended charge can be broken down into two categories:
(1) allegations concerning the time-tracking code, UNSEU; and (2) allegations concerning
union released time for activities apart from formal negotiations, specifically grievance
representation meetings, Regional Council meetings and Education Training Release Time
meetings. Regarding the first category
of
new allegations, these allegations were offered for
background information. 9
Regarding the second category
of
new allegations, the initial charge allegations make
no mention
of
grievance representation meetings, Regional Council meetings or Education
Evidence 	Employees International	may be admitted for background. (See Service
Union, Local 1021 (Sahle) (2012) PERB Decision No. 2261-M [citing Local Lodge No. 1424,
International Association
of
Machinists, AFL-CIO
v.
National Labor Relations Board (1960)
occurring prior to the limitations period may be	362 U.S. 411,416 for the principle that events
utilized to shed light on the true character of matters occurring within the limitations period].
14
background information."
14
The statute of limitations for new allegations contained in an amended charge begins to
run based upon the filing date of the amended charge (Sacramento City Teachers Association
(Marsh) (2001) PERB Decision No. 1458) unless the new allegations in the amended charge
relate back to the original allegations in the initial charge. (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959.) An amended charge relates back to the
initial charge only when it clarifies facts originally alleged in the initial charge or adds a new
legal theory based on facts originally alleged in the initial charge. (Ibid.)
Here, the amended charge was filed on February 24, 2012. The limitations period for
new allegations contained in the amended charge extends back six months from the date of
filing to August 24, 2011. The new allegations concern conduct that allegedly occurred in
March 2011, so therefore these allegations would fall outside the limitations period, unless an
exception applies.
The new allegations in the amended charge can be broken down into two categories:
1) allegations concerning the time-tracking code, UNSEU; and (2) allegations concerni	(1)
union released time for activities apart from formal negotiations, specifically grievance
representation meetings, Regional Council meetings and Education Training Release Time
meetings. Regarding the first category of new allegations, these allegations were offered for
Regarding the second category of new allegations, the initial charge allegations make
no mention of grievance representation meetings, Regional Council meetings or Education
Evidence may be admitted for background. (See Service Employees International
Union, Local 1021 (Sahle) (2012) PERB Decision No. 2261-M [citing Local Lodge No. 1424,
International Association of Machinists, AFL-CIO v. National Labor Relations Board (1960)
362 U.S. 411,416 for the principle that events occurring prior to the limitations period may be
utilized to shed light on the true character of matters occurring within the limitations period].

Training Release Time meetings. 10 The focus of the initial charge allegations is on formal
negotiations. 	Section (d) of the initial charge describes the charge as follows:
SEE ATTACHED. 	(COUNTY'S UNILATERAL CHANGE IN
TERMS AND CONDITIONS OF EMPLOYMENT
REGARDING RELEASE PAY FOR NEGOTIATIONS)
Section (d) of the amended charge describes the charge as follows:
SEE ATTACHED RE: FAILURE TO PAY FULL
COMPENSATION FOR EMPLOYEES WHEN MEETING AND
CONFERRING WITH EMPLOYER AND UNILATERAL
CHANGE IN TERMS AND CONDITIONS OF EMPLOYMENT
REGARDING RELEASE PAY FOR OTHER TYPES OF
UNION RELATED RELEASE TIME.
In support of its argument that the new allegations in the amended charge relate back to
the original allegations in the initial charge, SEID-asserts that while the initial charge does not
identify the other types of union released time apart from formal negotiations, the initial charge
references and includes a copy of Article 31 of the MOU. PERB Regulation 32615,
subdivision (a)(5) requires that a unfair practice charge contain "[a] clear and concise
statement of the facts and conduct alleged to constitute an unfair practice." The Board has
long required that a charge include all the material facts necessary to establish a prima facie
case. (Los Angeles Unified School District (1984) PERB Decision No. 473.) Requiring a
Board agent to discern the material facts not from the charge itself but from a copy of the labor
agreement attached to the charge does not meet this standard. (See, e.g., Regents of the
University of California (2004) PERB Decision No. 1592-H [Board affirmed dismissal of
charge directing Board agent to review attached documents for more information about the
charge].)
"It is, however, noted that the e-mail from Grotefend responding to an inquiry from
Thomas regarding shift differential pay for Educational Training Release Time was attached as
an exhibit to the initial charge and referenced in Allegation No. 9. Allegation No. 9 refers to
"collective bargaining" as only one example of union activities for which an employee may be
released from regular work duties.
It is, however, noted that the e-mail from Grotefend responding to an inquiry from
Thomas regarding shift differential pay for Educational Training Release Time was attached as
an exhibit to the initial charge and referenced in Allegation No. 9. Allegation No. 9 refers to
"collective bargaining" as only one example of union activities for which an employee may be
released from regular work duties.
15	15

16
Although SEIU' s relation back argument is of no avail, the doctrine of equitable tolling
is conclusive on the timeliness issue. The doctrine of equitable tolling applies to cases under
the MMBA. 	(Solano County Fair Association (2009) PERB Decision No. 2035-M.) Under
the doctrine of equitable tolling, the statute of limitations is tolled during the period of time the
parties are utilizing a non-binding dispute resolution procedure if the following elements are
met: (1) the procedure is contained in a written agreement negotiated by the parties; (2) the
procedure is being used to resolve the same dispute that is the subject of the unfair practice
charge; (3) the charging party reasonably and in good faith pursues the procedure; and
(4) tolling does not frustrate the purpose of the statutory limitations period by causing surprise
or prejudice to the respondent. (Long Beach Community College District, supra, PERB
Decision No. 2002.)
Based on the allegations of the charge and supporting documentation, the elements of
equitable tolling are met. The dispute resolution procedures utilized by the parties are
contained in a written agreement negotiated by the parties. The procedures are being used to
resolve the same dispute that is the subject of the unfair practice charge. 11 SEIU reasonably
and in good faith has pursued the procedure. And, based on the nature of the charge, there is
no basis on which to conclude that tolling would frustrate the purpose of the statutory
limitations period by causing surprise or prejudice to the County.
1 The grievance describes the dispute, not as limited in scope to formal negotiations,
but more broadly to encompass "the payment of shift differentials for SEIU represented
employees using the time reporting code of UN SEU for participation in union activities."
The grievance refers to "hours worked during paid release time for participation in union
activities." Similarly, the County responded to the grievance in broad terms, noting that the
"language has historically been interpreted in that manner, and was never intended to
compensate employees for time spent performing union activities, mandatory meetings, or
educational training that go beyond the regularly scheduled work hours."
16

The grievance was filed on March 17, 2011, the same month in which the conduct
underlying the charge is alleged to have occurred. The County's response to the amended
charge states that "all of the grievances regarding the payment of the shift differential" were
moved to Step 3 of the grievance procedure. At the time the amended charge was filed, the
parties were still utilizing the grievance procedure. The statute of limitations was equitably
tolled from March 17, 2011, until at least the filing of the amended charge. Accordingly, we
conclude that the new allegations in the amended charge are timely under the doctrine of
equitable tolling.
II. 	The Sufficiency of the Charge Allegations
a. 	Unlawful Unilateral Change
17
MMBA section 3505 requires the governing body or other representative of a public
agency to meet and confer in good faith regarding wages, hours, and other terms and
conditions of employment with representatives of recognized employee organizations. 	PERB
Regulation 32602, subdivision (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 MMBA section 3505.
In determining whether a party has violated MMBA 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.) It is well-settled
that an employer who makes a pre-impasse unilateral change in an established negotiable
policy violates its duty to meet and confer in good faith. 	(NLRB v. Katz (1962) 369 U.S. 736.)
Such unilateral changes are inherently destructive of employee rights and are a failure per se of
17

the duty to negotiate in good faith. 	(Hacienda La Puente Unified School District (1997) PERB
Decision No. 1187 (Hacienda).)
In order to establish a prima facie case
of
unlawful unilateral change, the charging party
must satisfy certain criteria. Those criteria are: (1) the employer took action to change policy;
(2) such action was taken without giving the exclusive representative notice or an opportunity
to bargain over the change; (3) the action was not merely an isolated incident or breach
of
the
contract, but had a generalized effect or continuing impact on the terms and conditions
of
employment
of
bargaining unit employees; and ( 4) the change in policy concerns a matter
within the scope
of
representation. (Fairfield-Suisun Unified School District (2012) PERB
Decision No. 2262; Grant Joint Union High School District (1982) PERB Decision No. 196
(Grant); Walnut Valley Unified School District (1981) PERB Decision No. 160.)
An established policy may be embodied in the terms
of
the parties' collective
bargaining agreement. (Grant, supra, PERB Decision No. 196.) Although PERB lacks
jurisdiction to adjudicate claims involving solely the violation
of
an agreement (see City
of
Long Beach (2008) PERB Decision No. 1977-M), PERB may interpret contract language
as necessary to decide unfair labor practices. (County
of
Sonoma (2011) PERB Decision
No. 2173-M.) When the Board interprets contract language, traditional rules
of
contract
interpretation apply. (Ibid.) Thus, the Board relies primarily on the plain meaning
of
the
contract language when attempting to discern its meaning. 	(County
of
Ventura (Office
of
Agricultural Commissioner) (2011) PERB Decision No. 2227-M citing County
of
Ventura
(2007) PERB Decision No. 1910-M.) "Where contractual language is clear and unambiguous,
it is unnecessary to go beyond the plain language of the contract to ascertain its meaning."
18	18
the duty to negotiate in good faith. (Hacienda La Puente Unified School District (1997) PERB
Decision No. 1187 (Hacienda).)
In order to establish a prima facie case of unlawful unilateral change, the charging party
must satisfy certain criteria. Those criteria are: (1) the employer took action to change policy;
(2)	2) such action was taken without giving the exclusive representative notice or an opportuni
to bargain over the change; (3) the action was not merely an isolated incident or breach of the
contract, but had a generalized effect or continuing impact on the terms and conditions of
employment of bargaining unit employees; and (4) the change in policy concerns a matter
within the scope of representation. (Fairfield-Suisun Unified School District (2012) PERB
Decision No. 2262; Grant Joint Union High School District (1982) PERB Decision No. 196
(Grant); Walnut Valley Unified School District (1981) PERB Decision No. 160.)
An established policy may be embodied in the terms of the parties' collective
bargaining agreement. (Grant, supra, PERB Decision No. 196.) Although PERB lacks
urisdiction to adjudicate claims involving solely the violation of an agreement (see City of	j
Long Beach (2008) PERB Decision No. 1977-M), PERB may interpret contract language
as necessary to decide unfair labor practices. (County of Sonoma (2011) PERB Decision
No. 2173-M.) When the Board interprets contract language, traditional rules of contract
interpretation apply. (Ibid.) Thus, the Board relies primarily on the plain meaning of the
contract language when attempting to discern its meaning. (County of Ventura (Office of
Agricultural Commissioner) (2011) PERB Decision No. 2227-M citing County of Ventura
(2007) PERB Decision No. 1910-M.) "Where contractual language is clear and unambiguous,
it is unnecessary to go beyond the plain language of the contract to ascertain its meaning."

(County of Sonoma, supra, PERB Decision No. 2173-M, citing Civ. Code§ 1638, City of
Riverside (2009) PERB Decision No. 2027-M; Marysville Joint Unified School District (1983)
PERB Decision No. 314.)
Here, the MOU does not address the issue whether an employee is entitled to payment
of a shift differential or special pay premiums when utilizing union released time.12 Under the
provision of the MOU entitled "Applicability of Shift Differentials," shift differentials do not
apply to only five types of paid time. They are "vacation, sick leave, holiday pay, call or
standby duty." Under that same provision, there are only nine classes of employees not
eligible for shift differentials, namely "Physician I, II, III" "Psychiatrist I, II, III," and
"Psychiatrist IM, IIM, IIIM." If the parties had agreed at the time they entered into the MOU
that employees on union released time would not be eligible for shift differentials, that
agreement is not expressed in this provision on the applicability of shift differentials.
Section 2(b) under Article 31 of the MOU governs separate payroll deductions and time
reporting codes for union released time. The provision requires the County to provide SEIU
with two payroll codes for union released time. It also provides that released time reported
under the time code SEIUP shall be reimbursed by SEIU, but the provision otherwise does not
address the issue of how union released time is to be paid. Other sections of Article 31
governing specific types of union released time do. For example, under section 11, released
time for SEIU Executive Board meetings "shall be taken as an approved leave of absence
charged against the appropriate representative's paid leave banks or the employee may remain
on the County payroll and SEIU shall be obligated to reimburse County based on actual costs
R Released time is time during the workday during which an employee is excused from
work to participate in negotiations. (Anaheim Unified High School District (1981) PERB
Decision No. 177.
19	19

for salary and benefits." Reimbursement by SEIU is also required by section 12 governing
released time for the President to work full time for SEIU. By contrast, there are no provisions
containing any requirements as to how the various types of union released time at issue in this
matter - 	collective bargaining, grievance representation meetings, Education and Training
Release Time meetings and Regional Council meetings - are to be paid. We therefore
conclude that the MOU is silent on this issue.
20
Where a contract is silent or ambiguous, an established policy can also take the form of
an established past practice or bargaining history. (Rio Hondo Community College District
(1982) PERB Decision No. 279; Compton Community College District (1990) PERB Decision
No. 790.) The Board has described an established past practice in a number of similar ways.
The Board has stated that it must be unequivocal, clearly enunciated and acted upon, and
readily ascertainable over a reasonable period of time as a fixed and established practice
accepted by both parties. (County of Placer (2004) PERB Decision No. 1630-M, citing
Hacienda La Puente Unified School District (1997) PERB Decision No. 1186; see also
Riverside Sheriffs' Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1291.) In
addition, PERB has described an enforceable past practice as one that is "regular and
consistent" or "historic and accepted." (Hacienda La Puente Unified School District, supra,
PERB Decision No. 1186.) PERB has also held that a past practice is established through a
course of conduct or as a way of doing things over an extended period of time. (Pajaro Valley
Unified School District (1978) PERB Decision No. 51 (Pajaro Valley); Cajon Valley Union
School District (1995) PERB Decision No. 1085.)
The amended charge alleges that the practice of paying shift differentials or special pay
premiums to employees on union released time was in place for "many years." A new payroll
20

time reporting code, UNSEU, enabled the County to begin to "track time spent by County
employees participating in union activities," according to the County's Step 2 grievance
decision. The new code allowed the County to differentiate between time spent on union
released time and regularly scheduled work time. 	Subsequent to the creation
of
this code, in
March 2011, during collective bargaining for a successor agreement, the County stopped
paying employees their full wages, including any applicable shift differentials or special pay
premiums, for time spent engaged in certain released time activities, namely collective
bargaining, grievance representation meetings, Education and Training Release Time meetings
and Regional Council meetings.
In response to the grievance, the County argued that SEIU' s past practice claim fails in
part because the "department clearly was unaware
of
the practice and ceased the improper
payment once it came to their attention." SEIU counters that the County had to have known
how it was paying its employees on union released time given that new released time
provisions were negotiated in 2009 and 2010. On this point, during negotiations for a 2011
successor agreement, the County proposed amending the provision
of
the MOU governing shift
differentials to add "Union Release Time" to the list
of
leave categories exempt from the
application
of
shift differentials. The County's desire to change the terms
of
the contract
provides support,
if
only inferential, for SEIU' s allegations that a policy
of
paying employees
on union released time full wages including shift differentials or special pay premiums had
hitherto been in place, a policy that the County subsequently sought to change.
13
Based on all
of
the above, we conclude that the charge alleges a course of conduct or way of doing things
over an extended period of time, as articulated by the Board in Pajaro Valley, supra, PERB
of	Even if there were not this inference, the issue 	employer knowledge is a disputed
fact, which at this stage of the proceedings is resolved in SEIU's favor. (Sacramento City
Unified School District (2010) PERB Decision No. 2129-E [conflicting issues of material fact
must be resolved by a trier of fact via PERB's formal hearing process].)
21	21
time reporting code, UNSEU, enabled the County to begin to "track time spent by County
employees participating in union activities," according to the County's Step 2 grievance
decision. The new code allowed the County to differentiate between time spent on union
released time and regularly scheduled work time. Subsequent to the creation of this code, in
March 2011, during collective bargaining for a successor agreement, the County stopped
paying employees their full wages, including any applicable shift differentials or special pay
premiums, for time spent engaged in certain released time activities, namely collective
bargaining, grievance representation meetings, Education and Training Release Time meetings
and Regional Council meetings.
In response to the grievance, the County argued that SEIU's past practice claim fails in
part because the "department clearly was unaware of the practice and ceased the improper
payment once it came to their attention." SEIU counters that the County had to have known
how it was paying its employees on union released time given that new released time
provisions were negotiated in 2009 and 2010. On this point, during negotiations for a 201 1
successor agreement, the County proposed amending the provision of the MOU governing shift
differentials to add "Union Release Time" to the list of leave categories exempt from the
application of shift differentials. The County's desire to change the terms of the contract
provides support, if only inferential, for SEIU's allegations that a policy of paying employees
on union released time full wages including shift differentials or special pay premiums had
hitherto been in place, a policy that the County subsequently sought to change." Based on all
of the above, we conclude that the charge alleges a course of conduct or way of doing things
over an extended period of time, as articulated by the Board in Pajaro Valley, supra, PERB
Even if there were not this inference, the issue of employer knowledge is a disputed
fact, which at this stage of the proceedings is resolved in SEIU's favor. (Sacramento City
Unified School District (2010) PERB Decision No. 2129-E [conflicting issues of material fact
must be resolved by a trier of fact via PERB's formal hearing process].)

22
Decision No. 51, sufficient to demonstrate an established past practice, thus satisfying the first
criteria of the prima facie case.
The remaining criteria are also satisfied. As alleged, the County implemented a change
in policy regarding payment of shift differentials or special pay premiums to employees on
union released time without giving SEIU notice or an opportunity to bargain over the change.
The County does not dispute that it did not follow meet and confer procedures. An alleged
policy of reducing the compensation of employees on union released time has a generalized
effect or continuing impact upon bargaining unit members' terms and conditions of
employment, namely wages. The alleged change therefore constitutes a change in policy
rather than an isolated breach. 	Last, the change in policy concerns a matter within the scope of
representation. (See, e.g., Anaheim Union High Schoo/District (1981) PERB Decision
No. 177 [paid release time is negotiable because it relates to wages].) Therefore, we conclude
that the elements of an unlawful unilateral change have been satisfied for prima facie purposes.
In response to the charge, the County contends that the MOU controls, and is not
trumped by past practice. It also contends that to the extent the Board finds the terms of the
MOU to be ambiguous, SEIU has failed to allege sufficient facts constituting an established
past practice.
22
For the reasons discussed above, we reject the County's argument that the MOU
"clearly provides that shift differentials exclusively apply" only to employees who are
"actually working." For support, the County relies on the section of the MOU governing the
applicability of the shift differentials, which provides that "[s]hift differentials do not apply to
vacation, sick leave, holiday pay, call or standby duty." The County appears to equate union
released time with being absent from work, and concludes that in either case, employees are

23
not "actually working" and therefore are not eligible for shift differentials or special pay
premiums. There are several problems with this argument. First, presumably there was
nothing to prevent the parties from including union released time in the finite list of exclusions,
but as written, union released time is not explicitly exempted from the application of shift
differentials. 	Second, union released time is of a categorically different nature of paid time
than vacation, sick leave, holiday pay, call or standby duty. Employees on union released time
are physically at the worksite, but have been released from their regularly assigned duties by
the County for a designated period of time. They are not at home, on vacation or otherwise
free to attend to personal or other non-work related business. Therefore, union released time is
not comparable to vacation, sick leave, holiday pay, call or standby duty. While true that
employees on union released time are not performing their regular duties, they are participating
in union activities related to the workplace.
The County also points to language in the MOU setting forth the various types of shift
differentials in arguing that shift differentials only apply to employees working their "regularly
scheduled shift." While regularly assigned duties are necessarily performed during regularly
scheduled shifts, the County's conflation of the two concepts is rejected. Notwithstanding any
shift changes necessary to accommodate the scheduling of collective bargaining sessions,
employees on union released time are excused from their regularly assigned duties. By
agreeing to the phrase "regularly scheduled shift," we discern no intent by the parties to deny
employees the shift differentials or special pay premiums they would have received but for
their participation in collective bargaining. At a minimum, this phrase, as it applies to the
determination of eligibility for shift differentials or special pay premiums, is sufficiently
ambiguous, and therefore warrants an examination of SEIU's past practice claim. In addition,
23

the County points to language in the MOU stating that union stewards are not required to
be
paid their regular wages. The charge allegations, however, do not concern union stewards.
14
Finally, the County points to the absence
of
"union release time" in Article 4 in the listing
of
shifts for which a shift differential is required to be paid. Union released time is not a type
of
shift. We do not, therefore, find its absence in this section relevant.
In furtherance
of
its point that the MOU controls, the County argues that to the extent
the County paid more than the MOU requires, the Board's decision inMarysville, supra,
PERB Decision No. 314, controls. The County relies on the following statement in the
Marysville decision: 	"[t]he mere fact that an employer has not chosen to enforce its
contractual rights in the past does not mean that, ipso facto, it is forever precluded from doing
so."
In Marysville, supra, PERB Decision No. 314, PERB held that the language
of an
existing agreement established a maximum break time for teachers such that assignment
of
noon-duty supervision outside that time limit was not a unilateral change, despite the
employer's historical practice
of
not assigning such duty during teachers' "free" time. 	Because
the language
of
the contract was found to be sufficiently unambiguous, the employer was
within its rights to enforce the terms
of
the agreement limiting the break time to that prescribed
by the agreement.
Marysville, supra, PERB Decision No. 314, stands for the principle that
if
a contract
provision is unambiguous and there is no subsequent mutual agreement to alter it, the employer
Section
	31
	owed to stewards	7
of
Article 	sets forth the County's pay obligations
conducting "steward business." That provision states that stewards are permitted to represent
SEIU in grievances. 	We recognize that the amended charge includes "grievance representation
meetings" as one of the four types of union released time activities in addition to collective
bargaining, Regional Council meetings and Education and Training Release Time meetings
that are the subject of this charge. In remanding this matter for issuance of a complaint,
compensation issues relating to stewards' participation in grievance meetings are expressly
excluded from this order given the clear and unambiguous terms of the MOU.
24	24
the County points to language in the MOU stating that union stewards are not required to be
paid their regular wages. The charge allegations, however, do not concern union stewards."
Finally, the County points to the absence of "union release time" in Article 4 in the listing of
shifts for which a shift differential is required to be paid. Union released time is not a type of
shift. We do not, therefore, find its absence in this section relevant.
In furtherance of its point that the MOU controls, the County argues that to the extent
the County paid more than the MOU requires, the Board's decision in Marysville, supra,
PERB Decision No. 314, controls. The County relies on the following statement in the
Marysville decision: "[the mere fact that an employer has not chosen to enforce its
contractual rights in the past does not mean that, ipso facto, it is forever precluded from doing
so."
In Marysville, supra, PERB Decision No. 314, PERB held that the language of an
existing agreement established a maximum break time for teachers such that assignment of
noon-duty supervision outside that time limit was not a unilateral change, despite the
employer's historical practice of not assigning such duty during teachers' "free" time. Because
the language of the contract was found to be sufficiently unambiguous, the employer was
within its rights to enforce the terms of the agreement limiting the break time to that prescribed
by the agreement.
Marysville, supra, PERB Decision No. 314, stands for the principle that if a contract
provision is unambiguous and there is no subsequent mutual agreement to alter it, the employer
14 Section 7 of Article 31 sets forth the County's pay obligations owed to stewards
conducting "steward business." That provision states that stewards are permitted to represent
SEIU in grievances. We recognize that the amended charge includes "grievance representation
meetings" as one of the four types of union released time activities in addition to collective
bargaining, Regional Council meetings and Education and Training Release Time meetings
that are the subject of this charge. In remanding this matter for issuance of a complaint,
compensation issues relating to stewards' participation in grievance meetings are expressly
excluded from this order given the clear and unambiguous terms of the MOU.

is entitled to enforce the terms
of
the contract despite its prior failure to
do
so. Marysville is
distinguishable. As discussed above, unlike the Board in Marysville, we do not find the MOU
to be sufficiently unambiguous. We find it to be silent, or at best sufficiently ambiguous, on
the question whether employees are entitled to their full wages including shift differentials or
special pay premiums when utilizing union released time.
We turn to the County's second argument, i.e., to the extent the MOU is ambiguous,
SEIU failed to establish a binding past practice. The County contends that any payments
above base wages made in the past to employees on union released time were not intentional
but rather a mere isolated instance or inadvertent oversight. At the charge processing and
investigation stage
of
the proceedings, the essential facts alleged in the charge are assumed to
be true. 	Conflicting issues
of
material fact must be resolved by a trier
of
fact via PERB' s
formal hearing process. (Sacramento City Unified School District (2010) PERB Decision
No. 2129-E.) The County's assertions regarding past payments for union released time are
disputed facts that cannot be resolved at this stage
of
the proceedings. The County will have
ample opportunity to rebut SEIU's claims at a formal hearing before a PERB administrative
law judge.
None 	by 	us to uphold the dismissal.
	of
the cases cited 	the County on this point persuade
In Regents
of
the University.of California (2010) PERB Decision No. 2109-H, the union
argued that there were two established past practices. One involved a policy
of
enforcing the
medical verification requirement only for employees who previously abused their sick leave
and the other involved a policy
of
not rescinding vacation leave once it was approved.
Regarding the sick leave policy, the Board found that the collective bargaining agreement
addressed the issue of sick leave verification. The Board further found that to the extent the
25
special pay premiums when utilizing union released time.
25
is entitled to enforce the terms of the contract despite its prior failure to do so. Marysville is
distinguishable. As discussed above, unlike the Board in Marysville, we do not find the MOU
to be sufficiently unambiguous. We find it to be silent, or at best sufficiently ambiguous, on
the question whether employees are entitled to their full wages including shift differentials or
We turn to the County's second argument, i.e., to the extent the MOU is ambiguous,
SEIU failed to establish a binding past practice. The County contends that any payments
above base wages made in the past to employees on union released time were not intentional
but rather a mere isolated instance or inadvertent oversight. At the charge processing and
investigation stage of the proceedings, the essential facts alleged in the charge are assumed to
be true. Conflicting issues of material fact must be resolved by a trier of fact via PERB's
formal hearing process. (Sacramento City Unified School District (2010) PERB Decision
No. 2129-E.) The County's assertions regarding past payments for union released time are
disputed facts that cannot be resolved at this stage of the proceedings. The County will have
ample opportunity to rebut SEIU's claims at a formal hearing before a PERB administrative
law judge.
None of the cases cited by the County on this point persuade us to uphold the dismissal.
In Regents of the University of California (2010) PERB Decision No. 2109-H, the union
argued that there were two established past practices. One involved a policy of enforcing the
medical verification requirement only for employees who previously abused their sick leave
and the other involved a policy of not rescinding vacation leave once it was approved.
Regarding the sick leave policy, the Board found that the collective bargaining agreement
addressed the issue of sick leave verification. The Board further found that to the extent the

employer previously failed to enforce the contract, it was not precluded from doing
so
under
Marysville, supra, PERB Decision No. 314. Regarding the vacation policy, the Board found
that there were no facts supporting the union's allegation
of
a change. In contrast, we find that
the MOU here
is
silent on the disputed issue, and that while SEIU may or may not prevail at a
formal hearing, it has at least alleged sufficient facts to support a prima facie case that the
County changed a policy embodied in a past practice
of
paying employees their full wages
including shift differentials or special pay premiums for when utilizing union released time.
In Riverside Sheriff's Assn.
v.
County
of
Riverside, supra, 106 Cal.App.4 th 1285,
1290-1291, the union argued that there had been a policy
of
automatically granting step
increases to employees on work-related illness or disability leave. Adopting PERB's standard
for determining an established past practice, the court held that the union failed to demonstrate
an unequivocal, regular and consistent practice
of
automatic step increases, pointing to the fact
that in the past such step increases had been both granted and denied. Here, SEIU alleges that
the practice was unequivocal, regular and consistent and nothing in the factual presentation
of
the charge suggests otherwise.
involved	Omnitrans (2008) PERB Decision No. 1996-M (Omnitrans) 	a complaint
alleging a change in the union leave policy. The union argued that "authorized union
business" under the terms
of
the contract permitted employees to take union paid business
leave for any purpose whatsoever, as long as it was authorized by the union. The union also
argued that this interpretation was consistent with past practice in that Omnitrans never
restricted the type
of
activity for which union leave could be used. Omnitrans argued that
"authorized union business" did not extend to any business unrelated to Omnitrans and its
employees, and that in approving leave requests for authorized union business, it did not know
26	26
employer previously failed to enforce the contract, it was not precluded from doing so under
Marysville, supra, PERB Decision No. 314. Regarding the vacation policy, the Board found
that there were no facts supporting the union's allegation of a change. In contrast, we find that
the MOU here is silent on the disputed issue, and that while SEIU may or may not prevail at a
formal hearing, it has at least alleged sufficient facts to support a prima facie case that the
County changed a policy embodied in a past practice of paying employees their full wages
including shift differentials or special pay premiums for when utilizing union released time.
In Riverside Sheriff's Assn. v. County of Riverside, supra, 106 Cal.App.4th 1285,
1290-1291, the union argued that there had been a policy of automatically granting step
increases to employees on work-related illness or disability leave. Adopting PERB's standard
for determining an established past practice, the court held that the union failed to demonstrate
an unequivocal, regular and consistent practice of automatic step increases, pointing to the fact
that in the past such step increases had been both granted and denied. Here, SEIU alleges that
the practice was unequivocal, regular and consistent and nothing in the factual presentation of
the charge suggests otherwise.
Omnitrans (2008) PERB Decision No. 1996-M (Omnitrans) involved a complaint
alleging a change in the union leave policy. The union argued that "authorized union
business" under the terms of the contract permitted employees to take union paid business
leave for any purpose whatsoever, as long as it was authorized by the union. The union also
argued that this interpretation was consistent with past practice in that Omnitrans never
restricted the type of activity for which union leave could be used. Omnitrans argued that
"authorized union business" did not extend to any business unrelated to Omnitrans and its
employees, and that in approving leave requests for authorized union business, it did not know

27
that such leave was being used for union activity unrelated to Omnitrans. The chief executive
officer and general manager of Omnitrans made the discovery when he saw on the front page
of the newspaper a photograph of an Omnitrans employee picketing a county building on
behalf of workers not employed by Omnitrans. The Board found that Omnitrans never
"knowingly" granted union paid leave for purposes unrelated to Omnitrans, and once it
discovered that the union was using employees on union paid leave for purposes related to
other employers, it stopped this practice.
In arguing that SEIU has failed to establish a binding past practice, the County is
relying on the word "knowingly" in the following statement in Omnitrans: the employer "did
not knowingly approve union paid release time for non-Omnitrans related activities as claimed
by ATU." The County contends that to the extent the County made payments of full wages
including shift differentials or special pay premiums to employees on union released time, it
did not do so "knowingly."
The County's reliance on Omnitrans, supra, PERB Decision No. 1996-M, is misplaced.
Accepting the facts as alleged to be true, prior to March 2011, the County paid full wages
including shift differentials or special pay premiums to employees whom the County released
from their regular duties to engage in union released time activities. While the County appears
not to have differentiated between wages earned for performance of regular duties and wages
earned for participation in approved union released time activities for time reporting and
payroll purposes, this does not mean that this practice was not "knowingly" followed by the
County as that word was intended by the Board in Omnitrans. In Omnitrans, once the
employer granted a union leave request, the employer had no reason to question whether such
leave was being used consistently with its understanding of authorized uses. Here, in contrast,
27

the County does not argue that union released time is being used inappropriately, or that the
County did not approve the union released time requests for the very uses to which they were
applied. Moreover, given the County's authority to approve leave requests and its control over
the administrative payroll system, the County's argument that its wage payments to employees
were not made knowingly is not persuasive. The County had the means and the opportunity,
not to mention the responsibility as a public employer, to be cognizant at all times
of
how it
pays its employees and what it pays its employees for.
Based on the foregoing, we conclude that SEIU has alleged sufficient facts
demonstrating for prima facie purposes an established past practice. While the County
disputes SEIU' s allegations
of
an established past practice, it will have every opportunity at
trial to present its evidence and make its case. At this stage
of
the proceedings, disputed facts
are resolved in favor
of
the charging party.
Statutory
	b.
	Independent 	Violation Arising Under MMBA Section 3505.3
SEIU is correct that the Office
of
the General Counsel did not analyze MMBA
section 3505.3 in dismissing the charge. In processing an unfair practice charge, the Board's
regulations do not empower the Office
of
the General Counsel to rule on the ultimate merits
of
a charge. (Eastside Union School District (1984) PERB Decision No. 466.) As the Board
stated, "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." We construe this language to mean that a complaint may be
issued to test a viable theory of law. (City
of
Pinole (2012) PERB Decision No. 2288-M.)
to	The right of an employee organization 	released time is statutorily guaranteed.
MMBA section 3505.3 provides in full:
28
Public agencies shall allow reasonable number of public agency
employee representatives of recognized employee organizations
reasonable time off without loss of compensation or other
m
28
the County does not argue that union released time is being used inappropriately, or that the
County did not approve the union released time requests for the very uses to which they were
applied. Moreover, given the County's authority to approve leave requests and its control over
the administrative payroll system, the County's argument that its wage payments to employees
were not made knowingly is not persuasive. The County had the means and the opportunity,
not to mention the responsibility as a public employer, to be cognizant at all times of how it
pays its employees and what it pays its employees for.
Based on the foregoing, we conclude that SEIU has alleged sufficient facts
demonstrating for prima facie purposes an established past practice. While the County
disputes SEIU's allegations of an established past practice, it will have every opportunity at
trial to present its evidence and make its case. At this stage of the proceedings, disputed facts
are resolved in favor of the charging party.
dependent	b. In 	Statutory Violation Arising Under MMBA Section 3505.3
SEIU is correct that the Office of the General Counsel did not analyze MMBA
section 3505.3 in dismissing the charge. In processing an unfair practice charge, the Board's
regulations do not empower the Office of the General Counsel to rule on the ultimate merits of
a charge. (Eastside Union School District (1984) PERB Decision No. 466.) As the Board
stated, "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
atter be sent to formal hearing." We construe this language to mean that a complaint may be
ssued to test a viable theory of law. (City of Pinole (2012) PERB Decision No. 2288-M.)	i
The right of an employee organization to released time is statutorily guaranteed.
MMBA section 3505.3 provides in full:
Public agencies shall allow reasonable number of public agency
employee representatives of recognized employee organizations
reasonable time off without loss of compensation or other

benefits when formally meeting and conferring with
representatives
of
the public agency on matters within the scope
of
representation.
A similar statutory provision can be found in EERA section 3543.1, subdivision (c).
15
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.) There is longstanding Board
precedent under EERA holding that the right to released time is both a mandatory subject
of
bargaining and a statutory
right
(See San Mateo Federation
of
Teachers
AFT
Local 1493,
AFL-CIO
v.
San Mateo County Community College District (1993) PERB Decision No. 1030
(San Mateo).) The main issue addressed in the decisions under EERA concerns the
reasonableness
of
the amount
of
released time and the number
of
representatives released. 16
As to the tension between released time being both a statutory right and also a negotiable
matter, the Board stated:
The Board further concluded that the "Legislature considered the
matter
of
released time too important to the statutory scheme to
be left either to the employer's discretion or entirely to the
vagaries
of
negotiations." Thus, there exists in section 3543.l(c)
a "minimum released-time standard
...
against which the parties'
good faith in negotiating on the subject could be measured."
Mateo	(San 	quoting Anaheim Union High School District, supra, PERB Decision No. 177.)
MMBA section 3505.3 similarly establishes a minimum statutory guarantee that is not
negotiable. The determination
of
the number
of
representatives to be released and the amount
15
EERA section3543.l, subdivision (c) provides: "A reasonable number of
representatives of an exclusive representative shall have the right to receive reasonable periods
of
released time without loss of compensation when meeting and negotiating and for the
processing of grievances.
16 Reasonableness under EERA section 3543.1, subdivision (c) is a question of fact
which must be determined based on the circumstances of each case. (Sierra Joint Community
College District (1981) PERB Decision No. 179.)
29
processing of grievances.
29
benefits when formally meeting and conferring with
epresentatives of the public agency on matters within the scope	r
of representation.
A similar statutory provision can be found in EERA section 3543.1, subdivision (c). '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.) There is longstanding Board
precedent under EERA holding that the right to released time is both a mandatory subject of
bargaining and a statutory right. (See San Mateo Federation of Teachers AFT Local 1493,
AFL-CIO v. San Mateo County Community College District (1993) PERB Decision No. 1030
(San Mateo).) The main issue addressed in the decisions under EERA concerns the
reasonableness of the amount of released time and the number of representatives released. 16
As to the tension between released time being both a statutory right and also a negotiable
matter, the Board stated:
The Board further concluded that the "Legislature considered the
matter of released time too important to the statutory scheme to
be left either to the employer's discretion or entirely to the
vagaries of negotiations." Thus, there exists in section 3543.1(c)
a "minimum released-time standard . . . against which the parties'
good faith in negotiating on the subject could be measured."
(San Mateo quoting Anaheim Union High School District, supra, PERB Decision No. 177.)
MMBA section 3505.3 similarly establishes a minimum statutory guarantee that is not
negotiable. The determination of the number of representatives to be released and the amount
EERA section3543.1, subdivision (c) provides: "A reasonable number of
representatives of an exclusive representative shall have the right to receive reasonable periods
of released time without loss of compensation when meeting and negotiating and for the
" Reasonableness under EERA section 3543.1, subdivision (c) is a question of fact
which must be determined based on the circumstances of each case. (Sierra Joint Community
College District (1981) PERB Decision No. 179.)

of
released time to be provided
is
couched in terms
of
reasonableness whereas the
determination
of
compensation or other benefits is not. The determination
of
reasonableness
relative to the number
of
representatives and amount
of
time will necessarily vary depending
on the factual circumstances
of
each case.
17
In contrast, the determination
of
"loss"
of
compensation or other benefits is measureable.
the	In Anaheim Unified High School District, one
of
	issues before the Board involved
the costs
of
released time. The district argued that released time costs may be passed along for
reimbursement by the employee organization. The Board disagreed:
Thus, the employer's policy is little short
of
an evasion
of
its statutory obligation specifically and unequivocally imposed by
the Act
....
Ironically, the employer's policy would not only
permit it
to
circumvent its statutory obligation but would place on
the employees, the intended beneficiaries
of
section 3543.1
(c),
the burden
of
financing the employer's obligation. The District's
policy does not simply ignore the Act, it reverses its very
meanmg.
Unified	(Anaheim 	School District, supra, PERB Decision No. 177, emphasis added.)
Although the policy involved here does not entail a pass-on
of
all costs
of
released
time, the same reasoning applies. The statutory purpose
of
released time is to ensure effective
representation for employees in negotiations by lessening the burden on employee
organizations whose effectiveness may otherwise be limited by time constraints. (San Mateo,
supra, PERB Decision No. 1030.) A policy that shifts costs onto employees by denying them
the pay they would have received but for collective bargaining frustrates this purpose.
7 	needs	Factual circumstances to be considered include the reasonable 	of the employer,
the number of hours spent in negotiations, the number of employees on the employee
organization's negotiating team, the progress of the negotiations, etc. The amount of released
time must be appropriate to the circumstances of the negotiations. 	(See Magnolia School
District (1977) EERB* Decision No. 19 [an employer's policy is not reasonable "if the policy
is unyielding to changed circumstances"].) (*Prior to 1978, PERB was known as the
Educational Employment Relations Board (EERB).)
30
compensation or other benefits is measureable.
30
of released time to be provided is couched in terms of reasonableness whereas the
determination of compensation or other benefits is not. The determination of reasonableness
relative to the number of representatives and amount of time will necessarily vary depending
on the factual circumstances of each case." In contrast, the determination of "loss" of
n Anaheim Unified High School District, one of the i	I 	ssues before the Board involved
the costs of released time. The district argued that released time costs may be passed along for
reimbursement by the employee organization. The Board disagreed:
Thus, the employer's policy is little short of an evasion of
ts statutory obligation specifically and unequivocally imposed by	i
the Act. . . . Ironically, the employer's policy would not only
permit it to circumvent its statutory obligation but would place on
the employees, the intended beneficiaries of section 3543.1(c),
the burden of financing the employer's obligation. The District's
policy does not simply ignore the Act, it reverses its very
meaning.
Unified	(Anaheim 	School District, supra, PERB Decision No. 177, emphasis added.)
Although the policy involved here does not entail a pass-on of all costs of released
time, the same reasoning applies. The statutory purpose of released time is to ensure effective
representation for employees in negotiations by lessening the burden on employee
organizations whose effectiveness may otherwise be limited by time constraints. (San Mateo,
supra, PERB Decision No. 1030.) A policy that shifts costs onto employees by denying them
the pay they would have received but for collective bargaining frustrates this purpose.
"Factual circumstances to be considered include the reasonable needs of the employer,
the number of hours spent in negotiations, the number of employees on the employee
organization's negotiating team, the progress of the negotiations, etc. The amount of released
time must be appropriate to the circumstances of the negotiations. (See Magnolia School
District (1977) EERB* Decision No. 19 [an employer's policy is not reasonable "if the policy
is unyielding to changed circumstances"].) (*Prior to 1978, PERB was known as the
Educational Employment Relations Board (EERB).)

Turning to the facts here, SEIU alleged that in March 2011, the County changed its
policy regarding payment
of
wages to employees released from their regular duties to engage
in formal negotiations. Prior to March 2011, as alleged, the County paid employees released
for formal negotiations their full wages including shift differentials or special pay premiums.
With the alleged change in policy, the County began paying employees released for formal
negotiations just their base wages, which did not include shift differentials or special pay
premmms.
public	As stated above, MMBA section 3505.3 requires 	agencies to allow
reasonable time off for formal negotiations "without loss
of
compensation or other benefits."
In construing the meaning
of
this phrase, we are guided by the fundamental rules
of
statutory
construction. A court should ascertain the intent
of
the Legislature to effectuate the purpose
of
the law; and
if
the language
of
the statute is clear and unambiguous, then the intent
of
the Legislature is reflected in the plain meaning
of
the statute. (Reid
v.
Google (2010)
50 Cal.4
th
512, 527.) As the California Supreme Court confirmed:
"Under settled canons
of
statutory construction, in construing a
to effectuate	statute we ascertain the Legislature's intent in order
the law's purpose. 	[Citation.] 	We must look to the statute's
words and give them 'their usual and ordinary meaning.'
[Citation.] 	'The statute's plain meaning controls the court's
interpretation unless its words are ambiguous.' 	[Citations.]
'If
the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute's purpose, legislative history, and public policy.'
[Citation.]" (Imperial Merchant Services, Inc.
v.
Hunt (2009)
47 Cal.4 th
381, 387-388 [97 Cal.Rptr.3d 464,212 P.3d 736].)
base	By reducing employees' pay from full wages to 	wages when they are excused
from their regular duties to engage in formal negotiations, a loss in compensation or other
benefits occurs. The way in which employees' time is compensated affects not only the
31	31
Turning to the facts here, SEIU alleged that in March 2011, the County changed its
policy regarding payment of wages to employees released from their regular duties to engage
in formal negotiations. Prior to March 2011, as alleged, the County paid employees released
for formal negotiations their full wages including shift differentials or special pay premiums.
With the alleged change in policy, the County began paying employees released for formal
negotiations just their base wages, which did not include shift differentials or special pay
premiums.
As stated above, MMBA section 3505.3 requires	A 	public	s stated above, M
reasonable time off for formal negotiations "without loss of compensation or other benefits."
In construing the meaning of this phrase, we are guided by the fundamental rules of statutory
construction. A court should ascertain the intent of the Legislature to effectuate the purpose
of the law; and if the language of the statute is clear and unambiguous, then the intent of
the Legislature is reflected in the plain meaning of the statute. (Reid v. Google (2010)
50 Cal.4 512, 527.) As the California Supreme Court confirmed:
"Under settled canons of statutory construction, in construing a
tatute we ascertain the Legislature's intent in order	s 	to effectuate
the law's purpose. [Citation.] We must look to the statute's
words and give them "their usual and ordinary meaning."
[Citation.] 'The statute's plain meaning controls the court's
interpretation unless its words are ambiguous.' [Citations.]
If the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute's purpose, legislative history, and public policy.
[Citation.]" (Imperial Merchant Services, Inc. v. Hunt (2009)
47 Cal.4th 381, 387-388 [97 Cal.Rptr.3d 464, 212 P.3d 736].)
By reducing employees' pay from full wages to b 	wages when they are excused	ase
from their regular duties to engage in formal negotiations, a loss in compensation or other
benefits occurs. The way in which employees' time is compensated affects not only the

computation
of
take-home pay, but often such benefits as retirement credits and seniority. The
County argues that no loss occurred because employees engaged in formal negotiations still are
entitled to wages
of
some kind, i.e., their base wages. "Loss" within the meaning
of
this
statutory directive, however, must be measured by an objective standard, rather than left to the
d1scret10n	. 	. 	o f one party to d
ec1
'd e.
18
The Board has described the right to released time as the right
of
an employee
"to
continue to receive full compensation." 	(Anaheim Unified School District, supra, PERB
Decision No. 177, emphasis added.) With this description in mind, we construe "loss" within
the meaning
of
MMBA section 3505.3 as measured against the amount
of
pay the employee
would have earned
if
the employee had not been "formally meeting and conferring with
representatives
of
the public agency on matters within the scope ofrepresentation."
19
To
construe it otherwise would exact a penalty on employees for engaging in formal negotiations,
One 	consequence 	would	perhaps unintended
	of
the County's position is that it 	tend to
encourage only those employees working in shifts not eligible for shift differentials or special
premium pay to participate in formal negotiations. Often, these employees have less seniority
and therefore cannot bring to negotiations the same depth
of
experience in the workplace as
more senior employees. Negotiations are enhanced when each side has unfettered choice in
selecting their choice ofrepresentative. (See Yolo County Superintendent
of
Schools (1990)
PERB Decision No. 838, citing San Ramon Valley Unified School District (1982) PERB
Decision No. 230 [neither the union nor the employer may dictate the opposing parties' choice
of
representative].)
19 The determination
of
"loss" under this interpretation
of
the statute does not turn on
when formal negotiations are scheduled to occur. 	Regardless
of
the timing
of
formal
negotiations,
if
an employee is entitled to be paid shift differentials or special pay premiums
for working his or her regularly scheduled shift, then under MMBA section 3505.3, the
employee is entitled to the same pay for time spent in formal negotiations on approved union
released time. Otherwise, that employee would suffer a "loss
of
compensation or other
benefits" in violation of MMBA section 3505.3. On the other hand,
if
the employee is not
entitled to be paid shift differentials or special pay premiums for working his or her regularly
scheduled shift, this interpretation of loss would not apply regardless of whether formal
negotiations are scheduled to coincide with shifts that carry shift differentials or special pay
premiums because no "loss of compensation or other benefits" within the meaning of MMBA
section 3505.3 occurs.
32	32
computation of take-home pay, but often such benefits as retirement credits and seniority. The
County argues that no loss occurred because employees engaged in formal negotiations still are
entitled to wages of some kind, i.e., their base wages. "Loss" within the meaning of this
statutory directive, however, must be measured by an objective standard, rather than left to the
discretion of one party to decide.8
The Board has described the right to released time as the right of an employee "to
continue to receive full compensation." (Anaheim Unified School District, supra, PERB
Decision No. 177, emphasis added.) With this description in mind, we construe "loss" within
the meaning of MMBA section 3505.3 as measured against the amount of pay the employee
would have earned if the employee had not been "formally meeting and conferring with
representatives of the public agency on matters within the scope of representation."19 To
construe it otherwise would exact a penalty on employees for engaging in formal negotiations,
" One perhaps unintended consequence of the County's position is that it would tend to
encourage only those employees working in shifts not eligible for shift differentials or special
premium pay to participate in formal negotiations. Often, these employees have less seniority
and therefore cannot bring to negotiations the same depth of experience in the workplace as
more senior employees. Negotiations are enhanced when each side has unfettered choice in
selecting their choice of representative. (See Yolo County Superintendent of Schools (1990)
PERB Decision No. 838, citing San Ramon Valley Unified School District (1982) PERB
Decision No. 230 [neither the union nor the employer may dictate the opposing parties' choice
of representative].)
The determination of "loss" under this interpretation of the statute does not turn on
when formal negotiations are scheduled to occur. Regardless of the timing of formal
negotiations, if an employee is entitled to be paid shift differentials or special pay premiums
for working his or her regularly scheduled shift, then under MMBA section 3505.3, the
employee is entitled to the same pay for time spent in formal negotiations on approved union
released time. Otherwise, that employee would suffer a "loss of compensation or other
benefits" in violation of MMBA section 3505.3. On the other hand, if the employee is not
entitled to be paid shift differentials or special pay premiums for working his or her regularly
scheduled shift, this interpretation of loss would not apply regardless of whether formal
negotiations are scheduled to coincide with shifts that carry shift differentials or special pay
premiums because no "loss of compensation or other benefits" within the meaning of MMBA
section 3505.3 occurs.

and create a chilling effect on the exercise
of
protected employee rights, i.e., participation
in
organizational activities.
3505.3	We find that our interpretation
of
MMBA section 	is consistent with the
underlying public policy embodied in the MMBA to "promote full communication between
public employers and their employees by providing a reasonable method
of
resolving disputes
regarding wages, hours, and other terms and conditions
of
employment between public
employers and public employee organizations."
(§
3500, subd. (a).) This policy is not served
by a compensation system that deters employees from engaging in collective bargaining. The
requirements
of
MMBA section 3505.3 extend only to formal negotiations, not to other types
of
union activity. 	Through the enactment
of
this provision, the Legislature expressed its
intention that formal negotiations be accorded a certain statutorily protected status by
guaranteeing that employees suffer "no loss in compensation or other benefits" as a
consequence
of
exercising their statutorily protected rights.
Thus, we conclude that SEIU has stated a prima facie violation
of
MMBA
section 3506.5, subdivision (b), which prohibits a public agency from denying to employee
organizations the rights guaranteed by this chapter.2° By causing employees to suffer
"a
loss in
compensation or other benefits" under MMBA section 3505.3 for participating in formal
negotiations, the County denied to SEIU rights guaranteed by this section.
CONCLUSION
a	The charge sets forth sufficient facts to state 	prima facie case
of
an unlawful
unilateral change that occurred in March 2011 when the County began paying base wages
instead
of
full wages including any applicable shift differentials and other premium pay to
released	A denial of 	time rights is a (b) violation. ( Gilroy Unified School District
(1984) PERB Decision No. 471; Muroc Unified School District (1978) PERB Decision No. 80;
Magnolia School District, supra, PERB Decision No. 19.)
33	33
and create a chilling effect on the exercise of protected employee rights, i.e., participation in
organizational activities.
We find that our interpretation of MMBA section 3505.3 is consistent with the
underlying public policy embodied in the MMBA to "promote full communication between
public employers and their employees by providing a reasonable method of resolving disputes
regarding wages, hours, and other terms and conditions of employment between public
employers and public employee organizations." ($ 3500, subd. (a).) This policy is not served
by a compensation system that deters employees from engaging in collective bargaining. The
requirements of MMBA section 3505.3 extend only to formal negotiations, not to other types
of union activity. Through the enactment of this provision, the Legislature expressed its
intention that formal negotiations be accorded a certain statutorily protected status by
guaranteeing that employees suffer "no loss in compensation or other benefits" as a
consequence of exercising their statutorily protected rights.
Thus, we conclude that SEIU has stated a prima facie violation of MMBA
section 3506.5, subdivision (b), which prohibits a public agency from denying to employee
organizations the rights guaranteed by this chapter. By causing employees to suffer "a loss in
compensation or other benefits" under MMBA section 3505.3 for participating in formal
negotiations, the County denied to SEIU rights guaranteed by this section.
CONCLUSION
The charge sets forth sufficient facts to state a prima facie case of an unlawful
unilateral change that occurred in March 2011 when the County began paying base wages
instead of full wages including any applicable shift differentials and other premium pay to
20 A denial of released time rights is a (b) violation. (Gilroy Unified School District
(1984) PERB Decision No. 471; Muroc Unified School District (1978) PERB Decision No. 80;
Magnolia School District, supra, PERB Decision No. 19.)

employees released from their regular duties for the following union activities: 	collective
bargaining negotiations, grievance meetings, Regional Council meetings and Education and
Training Release Time meetings. By its unilateral decision to change the past practice on
released time, the County failed and refused to meet and confer in good faith in violation of
MMBA section 3505.
The charge also sets forth sufficient facts to state a prima facie case of an independent
statutory violation arising under MMBA section 3505.3 by the County's conduct in paying
base wages instead of full wages including applicable shift differentials or special pay
premiums to employees released from their regular duties for formal negotiations. By this
conduct, the County denied to SEIU rights guaranteed by this section.
ORDER
The Board REVERSES the Office of the General Counsel's dismissal in Case
No. LA-CE-702-M and REMANDS the case to the Office of the General Counsel for issuance
of a complaint consistent with this Decision.
Members Huguenin and Winslow joined in this Decision.
34
employees released from their regular duties for the following union activities: collective
bargaining negotiations, grievance meetings, Regional Council meetings and Education and
Training Release Time meetings. By its unilateral decision to change the past practice on
released time, the County failed and refused to meet and confer in good faith in violation of
MMBA section 3505.
The charge also sets forth sufficient facts to state a prima facie case of an independent
34
statutory violation arising under MMBA section 3505.3 by the County's conduct in paying
base wages instead of full wages including applicable shift differentials or special pay
premiums to employees released from their regular duties for formal negotiations. By this
conduct, the County denied to SEIU rights guaranteed by this section.
ORDER
The Board REVERSES the Office of the General Counsel's dismissal in Case
No. LA-CE-702-M and REMANDS the case to the Office of the General Counsel for issuance
of a complaint consistent with this Decision.
Members Huguenin and Winslow joined in this Decision.