City of Selma (PERB 2380MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SELMA FIREFIGHTERS ASSOCIATION, IAFF,
LOCAL 3716,
Charging Party,
v.
CITY OF SELMA,
Res ondent.
Case No. SA-CE-747-M
Request for Reconsideration
PERB Decision No. 2380-M
PERB Decision No. 2380a-M
October 17, 2014
Appearances: Law Offices
of
Bennett & Sharpe by Thomas M. Sharpe, Attorney, for Selma
Firefighters Association, IAFF, Local 3716; Costanzo & Associates by Neal E. Costanzo,
Attorney, for City
of
Selma.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration by the City
of
Selma (City)
of
the Board's
decision in City
of
Selma (2014) PERB Decision No. 2380-M (City
of
Selma or Decision). In
that Decision, the Board affirmed the proposed decision by an administrative law judge (ALJ)
and concluded that the City had violated the Meyers-Milias-Brown Act (MMBA)1 by engaging
in surface bargaining and by prematurely declaring impasse in negotiations with the Selma
Firefighters Association, IAFF, Local 3716 (Association) before implementing its last, best
and final offer (LBFO). The City filed a timely request for reconsideration, and the
Association filed a timely response.
The Board has reviewed the City's request for reconsideration and supporting
1 The MMBA is codified at Government Code section 3500 et seq.

documentation, and the Association's response thereto. Based on this review, the Board denies
the City's request for reconsideration for the reasons discussed below.
DISCUSSION
Requests for reconsideration
of
a final Board decision are governed by PERB
Regulation 32410(a),2 which states in full:
(a) Any party to a decision
of
the Board itself may, because
of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date
of
service
of
the
decision. An original and five copies
of
the request for
reconsideration shall be filed with the Board itself in the
headquarters office and shall state with specificity the grounds
claimed and, where applicable, shall specify the page
of
the
record relied on. Service and proof
of
service
of
the request
pursuant to Section 32140 are required. The grounds for
requesting reconsideration are limited to claims that: (
1)
the
decision
of
the Board itself contains prejudicial errors
of
fact, or
(2) the party has newly discovered evidence which was not
previously available and could not have been discovered with the
exercise
of
reasonable diligence. A request for reconsideration
based upon the discovery
of
new evidence must be supported by a
declaration under the penalty
of
perjury which establishes that the
evidence: (1) was not previously available; (2) could not have
been discovered prior to the hearing with the exercise
of
reasonable diligence; (3) was submitted within a reasonable time
of
its discovery; (4) is relevant to the issues sought to be
reconsidered; and (5) impacts or alters the decision
of
the
previously decided case.
Because reconsideration may only be granted under "extraordinary circumstances," the
Board applies the regulation's criteria strictly in reviewing requests for reconsideration.
(Regents
of
the University
of
California (2000) PERB Decision No. 1354a-H.) Reiterating the
same facts and arguments made on appeal does not satisfy the requirements
of
PERB
Regulation 324IO(a). (San Leandro Unified School District (2007) PERB Decision No. 1924a;
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

Oakland Unified School District (2004) PERB Decision No. 1645a.) Purported errors
of
law
are not grounds for reconsideration. (California State Employees Association (Hard, et al.)
(2002) PERB Decision No. 1479a-S, p. 6 (CSEA (Hard)); Apple Valley Unified School District
(1990) PERB Order No. Ad-209a.)
The City asserts three specific grounds for reconsideration based on PERB
Regulation 3241 0(a): it urges the Board to reconsider its legal conclusion that the City
engaged in surface bargaining prior to declaring impasse; it alleges several factual inaccuracies
that it claims are prejudicial; and finally, it urges reconsideration
of
the remedy, because
employees allegedly suffered no wage loss as a result
of
the City's imposition
of
its LBFO. In
conjunction with its request to reconsider the remedy, the City submits a document that it
claims was previously unavailable.
Conclusion That The City Engaged In Surface Bargaining Prior To Impasse Declaration
The City urges the Board to reconsider its determination that the City engaged in
surface bargaining, claiming that it was premised on an erroneous conclusion by the ALJthat
surface bargaining was encompassed within the allegations
of
failure to meet and confer in
good faith.
This argument was raised by the City in its exceptions to the proposed decision and
addressed in the Board's Decision wherein we explained that "surface bargaining is reasonably
contemplated within allegations
of
bad faith bargaining." We also concluded based on the
totality
of
the City's pre-impasse declaration bargaining conduct, that the impasse it declared
on July 13, 2011 was not bona fide. (City
of
Selma, supra, PERB Decision No. 2380-M,
p. 15.)
By this request for reconsideration, the City merely seeks to re-argue its legal
contention. Disagreement with the Board's legal conclusions is not a legitimate ground for
3

reconsideration. (National Union
of
Healthcare Workers (2012) PERB Decision
No. 2249a-M.) The City's request for reconsideration on its first basis is therefore denied.
Alleged Prejudicial Factual Errors
As its second basis for reconsideration, the City asserts that the Decision contains
several prejudicial factual errors. We address each as follows:
Date
of
Impasse Declaration
First, the City claims that the Board erroneously found that the City declared impasse
on July 1, 2011, when the actual date, according to the City, was July 18, 2011.3
The facts determined by the Board indicate that the City's Chief Negotiator,
D-B Heusser (Heusser), wrote to the Association's chief negotiator on July 13, 2011,
informing him that the City council had rejected the Association's counter-proposal to the
City's LBFO and that Reusser believed the parties were at impasse. (City
of
Selma, supra,
PERB Decision No. 2380-M, p. 10.) Although the Decision mistakenly refers to a July 1,
2011, date as the date
of
the impasse declaration, a reading
of
the Decision as a whole indicates
that the operative date the Board relied upon was July 13, 2011.
The City has failed to demonstrate that the mistaken date was a prejudicial error
of
fact
within the meaning
of
PERB Regulation 32410(a). The Board considered the following events
occurring on or after July
1,
2011, in its analysis
of
the totality
of
the circumstances leading to
its conclusion that the declaration
of
impasse was premature and that the City engaged in bad
faith surface bargaining: (1) the City's LBFO issued on July 1, 2011, which inexplicably and
substantially changed the City's proposal; (2) the Association's July 8, 2011 counter-proposal,
and its repeated attempts thereafter to meet with the City regarding the proposal; (3) the City's
refusal to meet with the Association after the July 8, 2011 counter-proposal; (4) the City's
3 July 18, 2011, was the date on which the City council passed its resolution imposing
the City's LBFO, not the date when impasse was declared.
4

July 13, 2011, rejection
of
the Association's counter-proposal, and its continued refusal to
meet with the Association to clarify positions or determine that there was no room for further
movement. In short, the Board's conclusion that the City had not bargained in good faith and
prematurely declared impasse did not turn on the single fact
of
the date on which impasse was
declared.
Although there was no prejudicial error
of
fact, in order to ensure clarity in the
Decision, the Board hereby acknowledges that the date on which the City declared impasse
was July 13, 2011.
Date
of
City's First Bargaining Proposal
Next, the City asserts that the Decision erroneously found that "no proposals were
presented to the Association until the second meeting on June 16." The City fails to note that
the Decision found that on June 2, 2011, at the first bargaining session between the parties, the
City "verbally proposed that the Association members pay a part
of
the employee's share
of
the CalPERS contribution, 5 percent for two years and thereafter an additional 1 percent each
year, until the employee's share reached 8 percent. Reusser also stated that the furloughs
might have to continue." (City
of
Selma, supra, PERB Decision No. 2380-M, p. 6.)4 The
Decision notes that a written proposal was given to the Association on June 16, 2011. (Ibid.)
The City has not demonstrated factual error, let alone prejudicial factual error. The
Decision analyzes the totality
of
circumstances surrounding the parties' negotiations with the
understanding that face-to-face negotiations began on June 2, 2011, and that the City first
4 The City also asserts in its brief in support of the request for reconsideration that the
City made a proposal on March 16, and May 10, 2011. The City's assertions are not supported
by the record evidence. The meeting on March 16, 2011, was a roundtable meeting to brief all
employee organizations on the City's financial situation. The Association was not presentat
that meeting. The May 10, 2011, meeting was also a roundtable meeting with all employee
organizations present. As the Board found, no proposals were presented by the City at the
May 10, 2011 meeting. Negotiations between the City and the Association did not begin until
June 2, 2011.
5

made its proposal regarding pension cost-sharing to the Association
on
that date. We therefore
deny its request to reconsider this point. (State Center Community College District (2002)
PERB Decision No. 1471a [reconsideration denied where underlying decision did not turn on
alleged error].)
June 29, 2011 City Council Resolution
The City claims that our description
of
the City Council's June 29, 2011, resolution is
erroneously incomplete because it allegedly fails to note that the resolution "was adopted to
allow the City to continue operating." (Req. for Recon., p. 12) However, our Decision states
that on June 29, 2011, the City Council "adopted a resolution allowing the City to continue to
operate and expend funds until a final budget was approved." (City
of
Selma, supra, PERB
Decision No. 2380-M, p. 8; emphasis added.) We therefore find no error
of
fact, let alone a
prejudicial error
of
fact, and deny the City's request for reconsideration
of
this point.
Bad-Faith and Surface Bargaining
The City characterizes PERB's finding
of
bad faith bargaining and surface bargaining
by the City as a prejudicial error
of
fact that denies it due process. However, this conclusion is
one
of
law, not
of
fact, and therefore does not satisfy any ground for reconsideration. ( CSEA
(Hard), supra, PERB Decision No. 1479a,.S; Redwoods Community College District (1994)
PERB Decision No. 1047a.) To the extent that the Board found that the City bargained
without requisite intent to reach an agreement, the City has pointed to no error or newly
discovered evidence or other reason to justify reconsideration
of
this finding.
The City had a full opportunity to address the charge
of
"surface bargaining" during the
administrative lit~gation
of
this case and on exceptions. It is now merely repeating legal
arguments it already made at earlier procedural stages, which cannot serve as grounds for
6

reconsideration. (City
of
Pasadena (2014) PERB Order No. Ad-406-M, p. 14 (City
of
Pasadena).)
Other Miscellaneous Alleged Prejudicial Factual Errors
The City also disputes the Board's findings on several other matters that were
considered as part
of
the totality
of
circumstances leading to the Board's conclusion that the
City did not bargain in good faith before it imposed its LBFO. For example, the City takes
issue with "determinations concerning the nature
of
the counterproposal
...
of
July 8, 2011, as
containing a wage proposal as opposed to a proposal that sought to coerce the City into
transferring the functions
of
its Fire Department to Cal Fire." (Req. for Recon., p. 3
.)
It
also
asserts that PERB erred in determining that a request to continue to meet and confer,
subsequent to the exchange
of
counterproposals, need not specify particular bargaining
subjects to preclude the existence
of
an impasse. (Req. for Recon., p. 3.)
These alleged errors are merely re-argument
of
claims the City made at earlier
procedural stages.
It
obviously disagrees with the Board's characterization
of
the facts and the
legal conclusion it drew from those facts, but such disagreement is not a ground for
reconsideration.
Request For Revision
Of
Remedy
As its third basis for reconsideration, the City asserts that the Board must revise its
remedy in City
of
Selma, supra, PERB Decision No. 2380-M on two grounds. We address
each as follows:
Request For Offset Of Remedy
The City urges reconsideration of the remedy ordered by the Board on the ground that
the terms and conditions imposed on July 18, 2011, did not cause Association members to lose
any money. Aside from being an improper basis for reconsideration because the City has
7

failed to show a prejudicial error of fact, this request misapprehends the purpose of the status
quo ante remedy where the employer has unilaterally changed terms and conditions of
employment. A status quo ante remedy seeks to restore the bargaining equilibrium between
equal partners in negotiations, as well as to make whole individuals who have lost benefits as a
result of any unilateral change. (City of Pasadena, supra, PERB Order Ad-406-M, p. 14;
Temple City Unified School District (1990) PERB Decision No. 841; Santa Clara Unified
School District (1979) PERB Decision No. 104.) The only way to restore the bargaining
equilibrium is to assure that one party, in this case, the Association, is not bargaining from a
deficit position.
Regarding the make-whole remedy order as it relates to the 8 percent CalPERS
contribution, the City claims that the employees have not been harmed because they now earn
100 percent of their salary, which the City implies is a 10 percent "raise" from past years when
they were in furlough status. This more than off-sets the 8 percent CalPERS contribution
taken from their pay, according to the City.
We reject this argument. The City's position might have been valid had the City
mistakenly paid employees for work they did not actually perform. However, in this case, it
was the City's unilateral change that caused employees to work on days that would otherwise
have been furlough days, and the City received the full benefit of the time worked by these
employees, regardless of whether the days would otherwise have been furloughed under the
status quo.
In this case, offsetting the make-whole remedy by compensation earned by employees
would be to effectively garnish wages retroactively, with no opportunity for the affected
employees to seek income from outside sources for the days in question (an opportunity they
8

would have had
if
they had actually been furloughed). The affected employees should not be
penalized for the unfair practice committed by the City.
Any argument the City wishes to make concerning offsets is more appropriately made
at the compliance stage
of
these proceedings. (Fresno County Office
of
Education (1996)
PERB Decision No. 1171; In re Controlled Energy Systems (2000) 331 NLRB 251, 251, fn. 1
(Controlled Energy Systems).)
Claim
Of
Newly Discovered Evidence
The City submitted a declaration signed by its counsel with an exhibit attached
of
a
resolution approved by the City Council on June 25, 2012 for fiscal year 2012-2013, in which
the City Council declared impasse in negotiations with the Association and implemented terms
and conditions
of
employment according to its LBFO for that round
of
bargaining, a full year
after the events that form the basis
of
this Decision. The City claims that this evidence is
newly-discovered and supports a revision in the remedy ordered by the Board.
We reject this proffer
of
alleged new evidence for two reasons. First, it does not satisfy
PERB Regulation 32410(a). The resolution was previously available, and could have been
discovered prior to the administrative hearing with reasonable diligence. Nor was the
document submitted within a reasonable time
of
its discovery. The City Council approved the
resolution three days before the commencement
of
the formal hearing in this case on June 28,
2012, and the City could have introduced the resolution into evidence at that hearing.
The declaration states that the City could not have introduced the 2012-2013 resolution
at the hearing because "the resolution was still subject to challenge at the time of the hearing
that occurred in this proceeding and therefore did not amount to a conclusive, final and
unassa~lable determination by the City Council until six months after it was passed." The City
provides no authority for this proposition, and the resolution itself gives no such indication of a
9

six-month challenge period. In its exceptions to the
ALJ's
proposed decision filed on
February 4, 2013 (more than six months after the resolution was approved), the City made no
mention
of
the resolution.
Nor
did it make any attempt to augment the record, despite the fact
that the
remedy ordered by the ALJ contained the same substantive provisions as the Board's
ultimate remedy.
Regardless
of
when
the 2012-2013 resolution took effect, this resolution could have
been introduced into the record
at
the time
of
the hearing, and the legal effect
of
the resolution
been left to argument and final determination
by
the ALJ and this Board. The City obviously
knew
of
its existence, as its governing body had passed the resolution before the start
of
the
hearing.
Second, even
if
we were to consider the resolution, it does not justify any amendment
to the remedy ordered. (Chula Vista Elementary Educators Association (Larkins) (2004)
PERB Decision No. 1575a [request for reconsideration must establish how proffered newly
discovered evidence would alter previous decision].) The resolution appears to impose on this
bargaining unit the same terms and conditions
of
employment for the 2012-2013 fiscal year
that the City imposed in the previous year.
The City claims that this resolution demonstrates that the parties have negotiated,
reached a new impasse and a new imposition in the ensuing year since the events underlying
this Decision took place. This fact, however, is not a basis for reconsidering the ordered
remedy. Subsequent negotiations do not absolve the employer
of
past unfair practices.
If
there
are changed circumstances such that the remedy the Board ordered is no longer appropriate,
the Association need not demand to bargain, and could waive the make whole portion
of
the
remedy
if
it believes it is in the best interest
of
the bargaining unit to do so. Further, disputes
over the continued applicability of the remedy are more appropriately considered in
10

compliance proceedings. (Controlled Energy Systems, supra,
331
NLRB 251; Nevada Joint
Union High School District (1985) PERB Decision No. 557; Norris School District (1995)
PERB Decision No. 1090.)
ORDER
The City
of
Selma's request for reconsideration
of
the Public Employment Relations
Board's decision in City
of
Selma (2014) PERB Decision No. 2380-M is hereby DENIED.
Chair Martinez and Member Banks joined in this Decision.
11