County of Sacramento (PERB 2315M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TEAMSTERS LOCAL 150,
Charging Party,
V.
COUNTY OF SACRAMENTO,
Respondent.
Case No. SA-CE-717-M
PERB Decision No. 2315-M
April 15, 2013
Appearances: Beeson, Tayer & Bodine by John Provost, Attorney, for Teamsters Local 150;
Timothy D. Weinland, Deputy County Counsel, for County
of
Sacramento.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations
Board
(PERB or Board) on appeal by Teamsters Local 150 (Teamsters) from a dismissal (attached)
of
its unfair practice charge alleging that the County
of
Sacramento (County) refused to bargain
the effects
of
its decision to terminate a home vehicle retention assignment.
The amended charge alleged that the County violated the Meyers-Milias-Brown
Act
(MMBA) 1 when it removed from approximately 20 bargaining unit employees, the right to
take their County-issued vehicles home at the end
of
their work day. 	The Office
of
the General
Counsel dismissed the charge for failure to state a prima facie case.
We have reviewed the record and the dismissal in light
of
the Teamsters' appeal, the
County's response thereto and relevant law. 	Based on the review, we affirm the dismissal in
accordance with the following discussion.
1 MMBA is codified at Government Code section 3500 et seq.
1

SUMMARY OF ALLEGATIONS2
Since 1995, sewer district supervisors, the employees represented by the Teamsters,
were permitted to take their County-issued vehicles home to facilitate the supervisors'
response to emergencies at night and on weekends. By letter dated October
5,
2010, the
County notified Ken Akins (Akins), the Teamsters representative, that it intended to
discontinue this benefit for about 20
of
the supervisors who had not been called on to respond
to emergencies very frequently in the past year.
The Home Vehicle Retention Policy provides, in pertinent part:
Existing assignments no longer justified shall be dealt with in one
of
the following ways. The department head shall:
Terminate the assignment within 30 days and notify the Fleet
Services Automotive Services Manager that the vehicle
...
has
been converted to departmental pool utilization or will be
returned to the interdepartmental pool or
Obtain approval
of
...
Director
of
General Services
...
for
transitional continuance
of
the assignment beyond 30 days.
The October 5, 2010 letter informed the Teamsters that the County intended to give the
affected employees the 30 days' notice as required by the policy. The letter asked that Akins
contact the County by October 13, 2010,
if
he wanted to discuss the issue. The Teamsters did
not respond by October 13, 2010, and on October 21, 2010, the County notified the Teamsters
that it was going to give the employees their 30-day notice before rescinding the home vehicle
retention assignment.
By early November 2010, Akins spoke to Pat Oehler (Oehler), the County
representative, about this issue and a meeting was scheduled for November 16, 2010. At this
At this stage of the proceedings, we assume that the essential facts alleged in the
amended charge are true. (San Juan Unified School District (1977) EERB Decision No. 12
[Prior to January 1978, PERB was known as the Educational Employment Relations Board or
EERB]; Trustees
of
the California State University (Sonoma) (2005) PERB Decision
No. 1755.)
2

meeting, the County "went over the data that supported terminating" the home retention
vehicle assignments, according to the amended charge. Akins told the County that he would
confer with his members and "get back" to the County. The allegations do not indicate that
proposals were presented by either party at this meeting, and there is no allegation that the
Teamsters demanded to bargain either before or after this meeting.
A week later Akins met with his members and learned that they strongly objected to
having the home retention vehicle assignment rescinded. On November 30, 2010, Akins wrote
Oehler informing her
of
the employees' objections, and said, "Nevertheless, we believe that
there are various issues which deserve discussion relative to this issue." This letter concluded
with a request for possible meeting times and offered to "provide you with some ideas ahead
of
such meeting." The amended charge does not describe what,
if
any, ideas were provided by
the Teamsters, either before any meeting or at any other times.
The County did not respond to the Teamsters' November 30, 2010 letter until
December 17, 2010, due to an Oehler family emergency. In a December 17, 2010 email,
Oehler asked Akins for possible meeting dates and informed him that the County "will be
moving forward with the termination
of
the affected employee's [sic] home retention vehicle
assignment as previously indicated."
Akins responded to this email on December 31, 2010, offering to meet on three dates in
mid-January, 2011, and asked the County to refrain from terminating the home retention
of
vehicles, as that "would put the County in an unfair advantage with respect to these
negotiations." Oehler denied receiving this email, but responded by email to Akins on
January 7, 2011, informing him that the policy had already been implemented and would not
be rescinded. The County was nevertheless willing to meet "to answer any questions you
might still have."
3

This unfair practice charge was filed on March 8, 2011.
THE DISMISSAL
The Office
of
the General Counsel dismissed the charge, finding that the Teamsters had
failed to make an effective demand to negotiate over the effects
of
the County's decision to
end the vehicle home retention assignment.3 Relying on State
of
California (Department
of
Veterans Affairs) (2010) PERB Decision No. 2110-S (Veterans Affairs), among other cases,
the Office
of
the General Counsel stated that the Teamsters' request to negotiate over the
effects
of
a non-negotiable management decision must contain three components: a statement
that clearly indicates it is effects that the Teamsters seeks to negotiate; identification
of
subjects within the scope ofrepresentation impacted by the decision; and identification
of
the
specific effects over which the union wishes to bargain. (Dismissal letter, at p. 3.)
The Office
of
the General Counsel concluded that the Teamsters' letter
of
November 30, 2010, describing the members as "resistive" to the proposed changes and noting
that there were "various issues which deserve discussion," did not trigger the employer's duty
to negotiate effects
of
its decision because it did not explicitly request to negotiate effects and
did not identify any specific effects
of
the decision that would be negotiable.
POSITIONS OF THE PARTIES
The Teamsters appealed the dismissal, arguing that its request to discuss the change in
policy was sufficient to trigger the County's duty to bargain over the effects
of
the change, and
even
if
it were not sufficient, the fact that the County agreed to negotiate over the effects
preclude'd it from implementing the change until negotiations were concluded.
The County disputes that it ever agreed to negotiate over effects, relying on Oehler' s
December 17, 2010, communication which stated the change would occur on January 1, 2010.
The Teamsters does not allege that the employer had a duty to negotiate over the
decision to rescind the vehicle home retention assignment for the affected employees.
4

The fact that she was willing to "discuss" the matter was merely following up on her earlier
offer to do so. "Discussing" is not tantamount to negotiating, according to the County.
Moreover, there is no duty to negotiate over the decision or the effects, according to the
County, because the Home Vehicle Retention Policy permits rescission
of
the benefit on
30 days' notice.
DISCUSSION
It is well-settled that once an employer makes a firm decision to change negotiable
terms and conditions
of
employment, it must provide the exclusive representative with notice
and a reasonable opportunity to negotiate prior to taking action that affects matters within the
scope
of
representation. (Trustees
of
the California State University (2012) PERB Decision
No. 2287-H (CSU).) Having received notice
of
the proposed change, the exclusive
representative must then make a valid request to bargain.
In order to perfect a valid demand to bargain, the exclusive representative is not
required to recite a formulaic phrase, but may express its request in any form that conveys its
desire to meet and confer or negotiate about a matter within the scope
of
representation. 	A
request to "discuss [the] matter," as opposed to "negotiate" or "meet and confer" has been held
to put the employer on notice
of
the union's desire to bargain. (County
of
Riverside (2010)
PERB Decision No. 2097 (Riverside).) Mere protests or expressions
of
concern or
disagreement with the decision will not suffice. (Sylvan Union Elementary School District
(1992) PERB Decision No. 919 (Sylvan); Delano Joint Union High School District (1983)
PERB Decision No. 307.) But if a simple request to discuss the matter were all it took to
invoke the employer's duty to bargain over the effects of an otherwise non-negotiable decision,
a complaint against the County would have issued, as the Teamsters letter of November 30,
2010, asking for a discussion of "various issues" would have sufficed. However, that is not all
5

that is required
to
trigger the employer's duty to negotiate over the effects
of
a non-negotiable
decision.
When a proposed change is negotiable only as to its effects on terms and conditions
within the scope
of
representation, it is incumbent upon the exclusive representative to indicate
in its demand that it seeks to negotiate over effects (which includes implementation), rather
than the decision itself. "[A] valid request will be found, regardless
of
its form or the words
used,
if
it adequately signifies a desire to negotiate on a subject within the scope
of
bargaining." (Newman-Crows Landing Unified School District (1982) PERB Decision
No. 223 (Newman-Crows Landing).) Thus, for example, in
Mt.
Diablo Unified School District
(1983) PERB Decision No. 373 (Mt. Diablo), when notified
of
impending layoffs, the union
demanded to negotiate "any and all impacts upon members
of
our bargaining unit in any and
all mandatory subjects for negotiation resulting from your decisions
of
recent weeks." This
was deemed by PERB as sufficient to put the employer on notice that the union wished to
negotiate effects and any negotiable items related to the implementation
of
the layoff.
(Mt. Diablo, at pp. 21-22.)
In The Regents
of
the University
of
California (Lawrence Livermore National
Laboratory) (1997) PERB Decision No. 1221-H (Lawrence Livermore), at p. 7, the Board
reiterated that a demand to bargain effects need not take a particular form, but must put the
employer on notice that the union desired to negotiate effects, rather than the decision itself.
The Board does not require that a request to bargain over the
effects of a change include a laundry list
of
all possible effects
implicated by the change. (See Newman-Crows Landing Unified
School District (1982) PERB Decision No. 223 at p. 9 (noting
that request to bargain need not be made in any particular form).)
Once the Association requested bargaining over the effects of the
reduction in staff, the University was obligated to negotiate over
all of the reasonably foreseeable effects of that change, including
those effects not specifically mentioned in the request.
6

In the decade following Lawrence Livermore, PERB issued several decisions
which
in
dicta added to the requirements necessary to perfect a valid demand to bargain over effects
of
decisions within the managerial prerogative. 	Veterans Affairs, relied on by the Office
of
the
General Counsel in this dismissal, is one such case. There, the State determined to close the
acute care unit at the Yountville Veterans Home, a decision that was not negotiable. However,
the effects
of
the closure potentially were within the scope
of
bargaining, and the employer
would have been obligated to negotiate had the exclusive representative made a valid demand.
Instead, the union initially informed the employer that it wanted to negotiate over the decision
to close the unit which was followed by a letter asserting that the closure was "illegal." It
never demanded to bargain over the effects
of
the closure.
In reaching the conclusion that these demands were invalid, PERB relied on Sylvan and
Newman-Crows Landing for the proposition: "the demand ... must sufficiently signify the
exclusive representative's desire to bargain over a subject within the scope ofrepresentation."
(Veterans Affairs, at p. 8.) The Board continued: "When an exclusive representative demands
to bargain over the effects
of
a non-negotiable decision, the demand must clearly identify the
negotiable effects," citing Newman-Crows Landing again and State
of
California (Department
of
Corrections) (2006) PERB Decision No. 1848-S (Corrections). 	(Veterans Affairs,· id.) 4
However, Newman-Crows Landing says nothing about "clearly identifying the
negotiable effects" as a required element in a demand to bargain. Nor does Corrections, which
involved a reduction
of
staffing levels at a state prison, a decision within management's
prerogative. The Office
of
the General Counsel dismissed the charge in Corrections because
the union had failed to demand to bargain over the effects of the staffing level changes or to
submit proposals addressing concerns the union had regarding safety. Instead, the union
simply opposed the decision, and the allegations did not establish that it ever demanded to
bargain effects, a requirement that has been clear since the days of Newman-Crows Landing.
Corrections did not base the dismissal of the charge on any failure of the union to identify
negotiable effects in its demand. The union simply failed to signify that it wished to bargain
over effects rather than the decision.
7

Several other cases decided prior to Veterans Affairs had added via dicta the
requirement that the exclusive representative must "clearly identify the negotiable areas of
impact" when making a demand to bargain the effects of a non-negotiable decision. (City of
Richmond (2004) PERB Decision No. 1720; Riverside; Fresno County Superior Court (2008)
PERB Decision No. 1942-C [requiring the union to "clearly identify the negotiable areas of
impact"].)
Through the years, dicta have emerged in a way that has strayed from the original
requirements of Newman-Crows Landing and Mt. Diablo in such a manner as to place an
undue burden on the party seeking to invoke the collective bargaining process in appropriate
situations.
This evolving dicta culminated in Beverly Hills Unified School District (2008) PERB
Decision No. 1969 (Beverly Hills). 	There the Board dismissed an unfair practice charge
alleging a refusal to bargain the effects of the employer's decision to release copies of student
exams because the union failed to identify in its demand "which negotiable subjects [the
union] believed were impacted by the test release policy nor did it identify any specific effects
on those subjects." (Beverly Hills, at p. 13.) By this language, the Board added a third
element to the standard for demonstrating a valid demand to bargain over effects. In addition
to demonstrating that the demand seeks to bargain effects rather than the decision and that the
subjects impacted by the decision are within the scope of bargaining, Beverly Hills required the
exclusive representative to also identify specific effects the employer's decision would have on
those subjects.
We hold that requiring an exclusive representative to identify specific effects in its
demand to bargain the effects of a non-negotiable decision goes beyond the original spirit of
Newman-Crows Landing, Mt. Diab lo, and Lawrence Livermore, all of which stressed that the
8

demand to bargain effects need not be formalistic or burdensome, nor anticipate every
imaginable effect a proposed change may have. Instead, an effects bargaining demand must
place the employer on notice that the exclusive representative seeks to negotiate over effects
and that it believes the proposed change affects one or more subjects within the scope of
representation, such as wages, hours, or other terms and conditions of employment.
The better view, of which the Office of the General Counsel did not have benefit, has
been set forth in CSU, at p. 11, where the Board stated that a valid demand to bargain over the
effects must "clearly identify negotiable areas of impact, and clearly indicate the employee
organization's desire to bargain over the effects ... as opposed to the decision itself. [Citations
omitted.]" Even more recently we held in Rio Hondo Unified School District (2013) PERB
Decision No. 2313 (Rio Hondo), at p. 5: "the demand must identify clearly the areas of
impact, viz. matters within the scope of representation, on which [the exclusive representative]
proposes to bargain."
These more recent cases effectuate the purpose of the collective bargaining statutes by
requiring the exclusive representative to put the employer on notice that it seeks to bargain at
least over effects and identify the matters within scope foreseeably affected by the change,
while not thwarting negotiations by requiring overly formalistic requests to bargain. To the
extent that Beverly Hills or any other case requires more than these two elements, we expressly
disavow those decisions.
In this case, as the Office of the General Counsel correctly found, the Teamsters'
request to bargain failed even under our more recent holdings. It failed to demand negotiation
over effects of the decision, as opposed to the decision itself, and it failed to indicate any
matter within the scope ofrepresentation that was foreseeably affected by the County's non-
negotiable decision to terminate the home vehicle retention assignment for the employees.
9

The Teamsters asserts that regardless
of
the sufficiency
of
its bargaining demand, the
County was obligated to refrain from implementing a change in the policy until negotiations
were completed because the County had agreed to negotiate. Had negotiations actually
commenced, this argument would have some weight. (See Compton Community College
District (1989) PERB Decision No. 720 (Compton), at pp. 14-15.5)
The facts alleged
do
not demonstrate that the County ever agreed to negotiate in
response to the Teamsters' communications. The Teamsters was informed as early as
October 5, 2010, that the County intended to terminate the "home retention assignment" as
soon as administratively possible. This letter invited the Teamsters to discuss this issue by
contacting Oehler by October 13, 2010. The Teamsters did not respond by October 13, 2010,
but arranged for a meeting with Oehler on November 16, 2010, at which time Oehler explained
why the County wanted to stop allowing home vehicle retention. According to the amended
charge, Akins "said he would speak to his members and get back to Mr. [sic] Oehler." The
Teamsters did not demand to bargain anything at this meeting and did not submit proposals.
The Teamsters did ask to "discuss" the matter in its November 30, 2010 letter, but for reasons
discussed above, this was not a sufficient demand to bargain the effects of the County's
decision.6
5 In Compton, the Board held that an employer may implement a non-negotiable
decision after providing notice and an opportunity to negotiate when it can be shown that the
implementation date was not an arbitrary one, but is based either on an immutable deadline or
that delay in implementation would "effectively undermine the employer's right to make the
nonnegotiable decision;
...
[that] notice
of
the decision and implementation date [was] given
sufficiently in advance [as to allow] for meaningful negotiations prior to implementation; and
...
[that] the employer negotiate[d] in good faith prior to implementation and continues to
...
[do so] after implementation
....
"
6 The situation presented by these facts differs from one in which an exclusive
representative makes an arguably late demand to bargain. Here the Teamsters failed to even
make its intentions clear. By failing to demand bargaining over effects and by not indicating
matters within the scope of representation the change could foreseeably impact, the Teamsters

The Teamsters cites the December 17, 2010, email from Oehler to Akins as
proof
of
the
County's agreement to negotiate, but that communication merely asks for dates on which
the
Teamsters were available to meet. It demonstrates nothing about the subject matter
of
these
future meetings. The December 17, 2010, message continues by clearly informing the
Teamsters that the County will be "moving forward with the termination
of
the affected
employee's [sic] home retention vehicle assignment as previously indicated." In the absence
of
a valid demand to negotiate over the effects
of
the decision and in the absence
of
evidence
that negotiations (as opposed to an informational meeting) occurred in the November 16, 2010
meeting, we will not presume that the County's willingness to answer further questions
in
December evidenced an agreement to negotiate. To hold otherwise would penalize the
employer for doing what the purpose
of
the MMBA
envisions-promoting
full communication
between public employers and their employees. Simply agreeing to provide information
or
answer questions does not trigger an obligation to negotiate in the absence
of
a valid demand
by the exclusive representative to bargain.
The County gave the Teamsters reasonable notice
of
its decision to terminate the home
vehicle retention assignment for certain unit members. (Mt. Diablo; CSU.) Having done so, it
was up to the Teamsters to make a valid demand to bargain over effects. 7 As explained above,
the Teamsters failed to make such a demand or submit proposals, even though it had ample
opportunity to do so at the November 16, 2010 meeting with Oehler or at any time after
receiving the October 5, 2010 notice
of
the proposed change.
did not trigger the employer's duty to seek clarification, as we recently discussed in
Rio Hondo.
7 There is no dispute that the decision to discontinue the home vehicle retention
assignment was not negotiable. The County asserts that the change was not negotiable even as
to effects. We need not address that claim, as we uphold the Office of the General Counsel's
dismissal of the charge.
11

12
ORDER
The unfair practice charge as amended in Case No. SA-CE-717-M is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
12

STATE OF CALIFORNIA	
EDMUND
G.
BROWN
	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95811-4124
Telephone: (9 l 6) 327-83
83
Fax: (916) 327-6377
August 19, 2011
John Provost, Attorney
Beeson, Tayer & Bodine
520 Capitol Mall, Suite 300
Sacramento, CA 95814-4714
Re: 	Teamsters Local 15 0
v.
County
of
Sacramento
Unfair Practice Charge No. SA-CE-717-M
DISMISSAL LETTER
Dear Mr. Provost:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 8, 2011. Teamsters Local 150 (Teamsters or Union or
Charging Party) alleges that the County
of
Sacramento (County or Respondent) violated
sections 3503, 3504.5, and 3505
of
the Meyers-Milias-Brown Act (MMBA or Act) 1 by
unilaterally implementing a significant change to the terms and conditions
of
employment for
employees represented by the Union2 and by unilaterally implementing a new policy dealing
with standby assignments, without giving the Union an opportunity to bargain over either.
Charging Party was informed in the attached Warning Letter dated May 16, 2011, that the
above-referenced charge did not state a prima facie case. You were advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained
in
that
letter, you should amend the charge. On June 3, 2011, the Union filed a First Amended
Charge. In its First Amended Charge, the Union clarifies that its allegations with respect to the
Home Vehicle Retention Policy concern the County's failure and/or refusal to bargain over the
effects
of
the decision rather than the decision itself.
Factual Background
The Union is the exclusive representative
of
supervisory employees
of
the County in several
departments. 	One such department is the Sacramento Area Sewer District (Sewer District).
The Sewer District provides vehicles to all
of
its supervisory employees. The supervisors are
required to be on call or on standby for emergency situations at night and on weekends. 	The
1 The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq. 	The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 As discussed further below, this allegation concerns the County's application of a
Home Vehicle Retention Policy.

SA-CE-717-M
August 19, 2011
Page 2
established past practice has been
to
allow the Sewer District supervisors
to
take their County
vehicles home
to
facilitate the employees' availability for emergency calls.
On October
5,
2010, County representative Pat Oehler contacted Ken Akins, a Union
representative,
by
letter. Oehler's letter informed Akins that the Sewer District would be
"terminating the home retention assignment
of
several supervisors who are represented
by
the
Teamsters." The letter referenced and attached the County's "Home Retention Vehicle
Policy," dated July
1,
2007. 	The letter discussed the reasons for terminating the home
retention assignment
of
employees identified in an attachment to the letter. Oehler' s letter
further stated that it was the Sewer District's "intent to provide the employees cited in the
attached list with a 30-day notice that their home retention vehicle assignment will be
terminated." Oehler' s letter also referenced and attached a copy
of
newly developed "Standby
Guidelines for its employees," that would be applicable to supervisory employees. Oehler
invited Akins to contact him by October 13, 2010,
if
the Union wished
to
discuss either issue.
Akins and Oehler met in early November 2010. Oehler explained the basis for the County's
decision regarding vehicle home retention, and Akins stated that
he
would contact the affected
members and get back to Oehler. When Akins met with the affected supervisors, they "were
adamantly opposed to ending home vehicle retention." According to the charge, the
supervisors believed home retention was "a term
of
their employment" and they believed it
was necessary vis-a-vis responding
to
emergency calls.
were	Akins wrote to Oehler on November 30, 2010, stating that the supervisors and the Union
"resistive to the proposal" regarding changes to home vehicle retention, and that "resistive"
was an "understatement." Akins also stated, however, that the Union believed there were
"various issues which deserve discussion relative to the issue." Akins requested that Oehler
provide available dates for a meeting, and stated that the Union would provide "some ideas
ahead
of
such meeting."
Oehler responded via e-mail on December 17, 2010, asking for suggested meeting dates but
also stating that, while prepared to meet, the termination
of
home vehicle retention rights
would proceed. Akins replied on December 31, 2010, suggesting meeting dates in January
2011, and urging the County to "step back" and not proceed with the home vehicle retention
changes prior to any negotiations. Oehler later reiterated, in a January
7,
2011, e-mail message
to Akins, that the home vehicle retention rights of the affected supervisors had already been
terminated, but Oehler again offered to meet on the issue.
Discussion
1.
	Home Vehicle Retention Policy
The Warning Letter concluded that the charge in this matter did not present facts
demonstrating that any change in policy had been implemented with respect to the Horne
Vehicle Retention Policy. 	In the First Amended Charge, and a letter submitted with it, the
Union acknowledges that the policy was not changed. 	The Union, however, argues that the

SA-CE-717-M
August 19, 2011
Page 3
County unlawfully "refused to bargain over the effects
of
its decision to rescind home retention
rights for many employees." Citing County
of
Riverside (2010) PERB Decision No. 2097-M,
Union contends that
an
employer is obligated to provide notice and
an
opportunity to	the
bargain over the negotiable effects
of
a decision, even where the decision itself is not
negotiable. The Union further argues that, based on Akins' November 30,2010 letter to
Oehler, the Union was "clearly requesting effects bargaining over the County's decision."
While the Union correctly asserts that a non-negotiable decision
by
an employer may still be
subject to negotiations with respect to negotiable effects
of
that decision, the charge in this
its duty	matter does not contain sufficient facts
to
demonstrate that the County failed to fulfill
to bargain over any negotiable effects
of
the changes in its application
of
the Home Retention
Vehicle Policy.
While a union is not obligated to present a "laundry list"
of
negotiable effects (The Regents
of
the University
of
California (Lawrence Livermore National Laboratory) (1997) PERB
Decision No. 1221-H), any demand to negotiate over negotiable effects
of
a non-negotiable
decision must identify those subjects within the scope
of
representation impacted by the
decision
as
well as the specific effects over which the union wishes to bargain. (State
of
California (Department
of
Veterans Affairs) (2010) PERB Decision No. 2110-S [letter stating
union's displeasure that it was not afforded an opportunity to show the department why acute
care unit closure was not cost-effective did not constitute valid demand to bargain negotiable
effects
of
the closure decision].)
Likewise, where a union objected to the employer's decisions to demolish a security tower and
to install surveillance cameras, but did not make a demand to bargain that identified any
specific negotiable effects
of
the decisions, the employer did not violate the Act by refusing to
bargain over the effects of its decisions. (State
of
California (Department
of
Developmental
Services & Office
of
Protective Services) (2009) PERB Decision No. 2062-S.)
Here, in its November 30, 2010 letter, the Union merely stated that its members and the Union
Vehicle Policy, and	were "resistive" to the proposed changes concerning the Home Retention
that there were "various issues which deserve discussion." This communication is not
sufficient to establish that the Union clearly demanded to bargain over negotiable effects
of
a
to the decision itself, or that it identified any specific effects that would	decision, as opposed
be subject to a duty to bargain. (State
of
California (Department
of
Veterans Affairs), supra,
Services &	PERB Decision No. 2110-S; State
of
California (Department ofDevelopmental
Office
of
Protective Services), supra, PERB Decision No. 2062-S; County
of
Riverside, supra,
PERB Decision No. 2097-M; Beverly Hills Unified School District (2008) PERB Decision
No. 1969; Fresno County Superior Court (2008) PERB Decision No. 1942-C; Newman-Crows
Landing Unified School District (1982) PERB Decision No. 223.)
Thus, under the standards discussed above, this allegation fails to state evidence of a prima
facie violation and must be dismissed.

SA-CE-717-M
August 19, 2011
Page 4
2.
	Standby Guidelines
In the "Statement
of
Conduct Constituting Unfair Labor Practice" that
is
attached to the First
Amended Charge, the Union references the fact that Oehler's October
5,
2010 letter to Akins
included with it "a copy
of
proposed new Standby Guidelines for supervisors." A copy
of
the
proposed guidelines is also provided with the charge. In the statement
of
conduct, the Union
alleges that the County "unilaterally implemented a new policy dealing with Supervisor
standby assignments without giving the Union an opportunity to bargain."
The elements required to establish prima facie evidence
of
a unilateral change violation were
discussed in the earlier Warning Letter and will not be reiterated here. The Warning Letter
also addressed the burden required
of
a charging party under PERB Regulations and case law.
As noted, PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge
include a "clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice." The charging party's burden includes alleging the "who, what, when, where and
Agriculture) (1994)	how"
of
an unfair practice. (State
of
California (Department
of
Food and
PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)
In this case, there is simply no evidence presented with the charge to demonstrate that the
Union ever	proposed new standby guidelines constituted a change in policy, nor that the
demanded to bargain over the proposal, nor that the County refused a demand to bargain. 	For
these reasons, this allegation must also be dismissed. (State
of
California (Department
of
Veterans Affairs), supra, PERB Decision No. 2110-S.)
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review
of
this dismissal
of
the
of
	charge by filing an appeal to the Board itself within twenty (20) calendar days after service
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business d
(Cal. Code Regs, tit. 8, §§
32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. 	(Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
ay.

SA-CE-717-M
August 19, 2011
Page 5
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
days	Board an original and five copies
	of
a statement in opposition within twenty (20) calendar
following the date
of
service
of
the appeal. (Cal. Code Regs, tit.
8,
§ 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served
upon
a
party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
§ 32140 for the required
when personally delivered orcontents.) The document will be considered properly "served"
deposited in the mail or deposited with a delivery service and properly addressed. A document
on all parties to the proceeding.	may also be concurrently served via facsimile transmission
(Cal. Code Regs, tit.
8,
§ 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
A request for an extension	in writing and filed with the Board at the previously noted address.
of
the time required for	must be filed at least three (3) calendar days before the expiration
filing the document. The request must indicate good cause for and,
if
known, the position
of
by proof
of
service
of
theeach other party regarding the extension, and shall be accompanied
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)

SA-CE-717-M
August 19, 2011
Page 6
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when
the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
By 	L 	ce£if2-Les Chi
Division Chief
sholm
Attachment
cc: Timothy D. Weinland

STATE
OF
CALIFORNIA 	EDMUND
G.
BROWN
	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
May
16,
2011
John Provost, Attorney
Beeson, Tayer & Bodine
520 Capitol Mall, Suite 300
Sacramento, CA 95814-4714
Re: 	Teamsters Local 150
v.
County
of
Sacramento
Unfair Practice Charge No. SA-CE-717-M
WARNING LETTER
Dear Mr. Provost:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March
8,
2011. Teamsters Local 150 (Teamsters or Union or
Charging Party) alleges that the County of Sacramento (County or Respondent) violated
sections 3503, 3504.5, and 3505
of
the Meyers-Milias-Brown Act (MMBA or Act) 1 by
unilaterally terminating vehicle home retention rights for certain employees.
The Union is the exclusive representative
of
supervisory employees
of
the County in several
departments.2 One such department is the Sacramento Area Sewer District (Sewer District).
The Sewer District provides vehicles to all
of
its supervisory employees. The supervisors are
required to be on call or on standby for emergency situations at night and on weekends. 	The
established past practice has been to allow the Sewer District supervisors to take their County
vehicles home to facilitate the employees' availability for emergency calls.
On October 5, 2010, County representative Pat Oehler contacted Ken Akins, a Union
representative, by letter. 	Oehler's letter informed Akins that the Sewer District would be
"terminating the home retention assignment of several supervisors who are represented by the
Teamsters." The letter referenced and attached a County "Home Retention Vehicle Policy,"
dated July
1,
2007. 	The letter discussed the reasons for terminating the home retention
assignment
of
employees identified in an attachment to the letter. Oehler's letter further stated
that it was the Sewer District's "intent to provide the employees cited in the attached list with a
1 The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq. 	The text
of
the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 The Union and the County are parties to a memorandum of understanding (MOU) that
was in effect at all times relevant to this matter. However, neither party references any
provision of the MOU in support of its position in this matter.

SA-CE-717-M
May 16, 2011
Page 2
30-day notice that their home retention vehicle assignment will be terminated." Oehler invited
Akins to contact him by October 13, 2010,
if
the Union wished to discuss the issue.3
Akins and Oehler met in early November 2010. Oehler explained the basis for the County's
decision regarding vehicle home retention, and Akins stated that he would contact the affected
members and get back to Oehler. When Akins met with the affected supervisors, they opposed
ending the vehicle home retention. Akins wrote to Oehler on November 30, 2010, stating that
the Union opposed the change and requesting a follow-up meeting. 	Oehler responded
via
e-
mail on December 16, 2010, asking for suggested meeting dates but also stating that, while
prepared
to
meet, the termination
of
home vehicle retention rights would proceed. Oehler later
reiterated, in a January 7, 2011, e-mail message to Akins, that the home vehicle retention rights
of
the affected supervisors had already been terminated.
Home Retention Vehicle Policy
As noted, a document titled Home Retention Vehicle Policy (Policy) was attached to Oehler' s
October
5,
2010 letter, and is included among the attachments to the charge. The Policy shows
an effective date
of
July
1,
2007. In its position statement, the County asserts that the Policy
was adopted following a meet and confer process involving the Teamsters and other affected
employee organizations.4
Relevant excerpts from the Policy read as follows:
All individual vehicle/equipment assignments must be justified in
writing to the County Executive through the Director
of
General
Services and Chief
of
Fleet Services (or the Director
of
Airports,
if
the vehicle is assigned to Airport staff) prior to the assignment
and are subject to periodic review. 	County vehicles/equipment
may be assigned to individuals when essential to the County for
safety, cost or operational effectiveness reasons.
The department head may authorize an assignee with permanent
duty hour retention to retain the vehicle/equipment overnight
Oehler' s letter also referenced and attached a copy of newly developed "Standby
Guidelines for its employees," that would be applicable to supervisory employees. Akins was
also invited to respond if the Union wished to discuss the guidelines. However, the charge
does not include any further reference to the Standby Guidelines and this letter likewise will
not further address them.
4 In determining whether a prima facie case is established, a Board agent may consider
information obtained from a respondent, unless that information is disputed or rebutted by the
charging party. (Service Employees International Union #790 (Adza) (2004) PERB Decision
No. 1632-M.)

SA-CE-717-M
May 16, 2011
Page 3
and/or weekends under certain conditions. Except in an
emergency, this approval must be obtained in advance.
A department head may request an individual be assigned home
retention privileges
if
the department head deems home retention
is
in the public interest and/or the task(s) to be performed when
called during off-duty hours is beneficial to the County. Home
retention privileges should be reserved for one
of
the following
circumstances:
• 	Emergencies or After Hours Response: An employee is
required to respond on a regular basis to after hour
emergencies or mission-essential callouts within the
County. This scenario presumes that the employee is
assigned to after hours/on-call status and that the
emergency or callout necessitates an immediate response
to the job site or emergency location and that the vehicle
requires some form
of
special equipment or mission-
related supplies as described below in the paragraph titled
"Duty hour retention".
Home retention requests must be submitted in writing to the
department head for approval. The employee to whom the
vehicle
is
to be assigned must acknowledge, in writing, that they
understand and agree to adhere to the policies contained herein;
the acknowledgement shall be submitted to the department head
along with the request.
When the need for after-hours availability is
no
longer present, as
determined by department head, the assignee shall discontinue
driving the vehicle/equipment to and from work. He/she shall
instead arrange for the vehicle/equipment to be parked at the
County work location during off-duty hours, or returned to the
County or Airport vehicle/equipment pool, as appropriate. This
requirement applies, but is not limited, to the following periods:
• 	When assignee is on vacation, sick leave or otherwise off
duty for more than five work days.
• 	When required conditions that justified home retention is
interrupted for more than five working days.
Departments shall maintain a list of existing assignments
including the type of vehicle/equipment, position classification

SA-CE-717-M
May 16, 2011
Page 4
and name
of
the person to whom the vehicle is assigned, and
justification for the assignment.
Each year agency administrators and department heads shall
review the necessity for each individual vehicle/equipment
assignment prior to submitting departmental budget requests to
the County Executive.
(Emphasis in original.)
Discussion
PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
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.) Unilateral changes are considered
"per se" violations
if
certain criteria are met. Those criteria are: (1) the employer breached or
altered the parties' written agreement or its own established past practice; (2) such action was
taken without giving the other party notice or an opportunity to bargain over the change; (3)
the change was not merely an isolated breach
of
the contract, but amounts to a change in policy
(i.e., it has a generalized effect or continuing impact upon bargaining unit members' terms and
conditions
of
employment); and ( 4) the change in policy concerns a matter within the scope of
representation. (San Joaquin County Employees Association
v.
City
of
Stockton (1984) 161
Cal.App.3d 813; Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802; Grant
Joint Union High School District (1982) PERB Decision No. 196; Walnut Valley Unified
School District (1981) PERB Decision No. 160.)
For a past practice to be binding and subject to a unilateral change analysis, 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' Association
v.
County
of
Riverside (2003)
106 Cal.App.4th 1285, 1291.) PERB has also 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.)

SA-CE-717-M
May 16, 2011
Page 5
An employee's use
of
an employer's vehicle for commuting to and from home has been held
to
constitute a matter within the scope
of
representation. (Los Angeles Unified School District
(2002) PERB Decision No. 1501; West Covina Unified School District (1993) PERB Decision
No. 973.) However, the charge does not establish that the County's action in this case
constitutes a change in policy with respect to the established home retention policy.
While it is evident that the County determined to eliminate vehicle home retention for certain
employees represented by the Union, who had been approved in the past for such, the charge
does not demonstrate that the decision was inconsistent with the established Horne Retention
Vehicle Policy. Instead, it appears the established policy contemplates that "administrators
and department heads shall review the necessity for each individual vehicle/equipment
assignment" on an annual basis.
Without specific facts demonstrating that an actual change in policy was implemented, it is not
necessary to examine whether the decision was made without bargaining with the Union or
whether it had a generalized effect. (Grant Joint Union High School District, supra, PERB
Decision No. 196.)
Conclusion
as presently 5
charge, 	does	For these reasons the 	written, 	not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent
of
Charging Party. 	The amended charge must have the case
number written on the top right hand corner
of
the charge form. 	The amended charge
must
be
served on the Respondent's representative and the original proof
of
service must be filed with
charge or withdrawal is not filed on or before May 27, 2011,6
PERB.
	If
an amended
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
6 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)

SA-CE-717-M
May 16, 2011
Page 6
PERB will dismiss your charge.
	If
you have any questions, please call me at the above
telephone number.
Sincerely,
LLes Chisholm
Division Chief