County of San Luis Obispo (PERB 2427M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF SAN LUIS OBISPO,
Charging Party,
v.
SAN LUIS OBISPO GOVERNMENT
.ATTORNEYS' UNION and SANLUIS OBISPO
DEPUTY COUNTY COUNSEL ASSOCIATiqN,
Res ondents.
Case Nos. LA-CO-123-M
LA-CO-124-M
PERB Decision No. 2427-M
June 3, 2015
Appearances: Renne Sloane Holtzman & Sakai by Jeffrey Sloan and Steve Cikes, Attorneys,
for County of San Luis Obispo; Silver, Hadden, Silver, Wexler & Levine by Stephen H. Silver
and Jacob A. Kalinski, Attorneys, for San Luis Obispo Government Attorneys' Union and
San Luis Obispo Deputy County Counsel Association.
Before Huguenin, Winslow and Banks, Members.
DECISION
BANKS, Member: These cases were consolidated for consideration by the Public
Employment Relations Board (PERB or Board) of exceptions filed by the San Luis Obispo
Government Attorneys' Union (SLOGAU) and the San Luis Obispo Deputy County Counsel
Association (DCCA) (collectively, Unions) to the proposed decision of a PERB administrative
law judge (ALJ). The ALJ concluded that the Unions had violated the Meyers-Milias-Brown
Act1 and PERB regulations2 by refusing to bargain over proposed changes to the amounts of
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

employee contributions to the County of San Luis Obispo's (County) pension and retirement
plan and/or how pension cost increases are to be allocated between the County and employees
represented by the Unions. The ALJ also concluded that the Unions had refused to bargain
over a proposed change in the method for calculating the prevailing wage of unit employees,
which, pursuant to the County's Prevailing Wage Ordinance, functions as a benchmark for
determining the amount change to employee wage rates.
The Unions deny that they refused to bargain and they argue, in the alternative, that
they were under no obligation to meet and confer regarding either proposal at issue in this case.
According to the Unions, both proposals would impair vested employee rights protected by the
_contracts clauses of the California and federal Constitutions, and are therefore outside the
scope of mandatory subjects.
The County avers that both proposals were fully negotiable, as they affected statutorily-
enumerated subjects of wages. It urges the Board to adopt the proposed decision and seeks the
standard Board remedy, including an order for the Unions to cease and desist from refusing to
bargain and an affirmative order to bargain in good faith, upon request, over all matters within
scope.
For the reasons set forth below, we affirm the ALJ's conclusion that the Unions
violated the MMBA and PERB regulations by refusing to bargain over the County's proposal
to change the formula and/or amounts of employee pension contributions. In doing so, we rely
on the Unions' admissions in their answers to the complaints that they refused to bargain over
this proposal and on the judicially-developed doctrine of the conclusiveness of pleadings. We
do not rely on the ALJ's alternative reasoning that the Unions' conduct constituted a refusal to
bargain over this proposal.
2

We also reverse the ALJ's conclusion that the Unions unlawfully refused to bargain
·over the County's proposal to change the definition of the prevailing wage.
PROCEDURAL HISTORY
On November 9, 2010, the County filed unfair practice charges with PERB alleging
that the Unions violated the MMBA and PERB regulations by refusing to bargain over a
proposal that employees assume certain costs of funding future pension benefits of current
employees.
On April 7, 2011, the County withdrew from its charges an allegation that the Unions
also violated PERB Regulation 32604, subdivision (e).3 On the same date, PERB's Office of
the General Counsel issued complaints in both cases alleging that the Unions violated MMBA
section 3506, subdivision (b),4 and PERB Regulation 32604, subdivision (c),5 by refusing to
bargain proposed changes in the amount of employee contributions to the County's pension
plan and/or over how pension cost increases would be allocated between the County and
employees represented by the Unions.
On April 21, 2011, the Unions answered the complaints, admitting certain facts,
denying others and asserting various affirmative defenses. 	Specifically, the Unions admitted
3 PERB Regulation 32604, subdivision (e), includes catch-all language making it
unlawful for an employee organization "[i]n any other way [to] violate MMBA or any local
rule" adopted by a public agency under MMBA jurisdiction.
4 Among other things, MMBA section 3509, subdivision (b), authorizes PERB to
investigate unfair practice charges and to issue a complaint "alleging any violation of [the
MMBA] or of any rules and regulations adopted by a public agency pursuant to [MMBA
section] 3507 or 3507.5."
5 PERB Regulation 32604, subdivision (c), makes it unlawful for an employee
organization subject to MMBAjurisdiction to "[r]efuse or fail to meet and confer in good faith as
required by [MMBA] section 3505 or by any local rule adopted pursuant to [MMBA]
section 3507."
3

that they refused to bargain over changes to employee contribution rates to the County's
pension plan and over how pension cost increases would be allocated between bargaining unit
employees and the County. However, the Unions denied the negotiability of the County's
proposals affecting these subjects and asserted that agreeing to bargain over these proposals
would impair certain vested contractual benefits owed to employees that the Unions could not
bargain away "any more than [they] could bargain away last year's salary."
On July 5, 2011, PERB's Office of the General Counsel conducted an informal
settlement conference but the dispute was not resolved.
On September 30, 2011, the County moved to amend the complaints to allege that the
Unions further violated the MMBA and PERB regulations by refusing to bargain over a
proposal to change the definition and/or method for calculating the prevailing wage set forth in
the County's Prevailing Wage Ordinance.
On October 3, 2011, the Unions moved to dismiss the complaints.
On January 10, 2012, an ALJ granted the County's motion to amend the complaints and
denied without prejudice the Union's motions to dismiss the complaints.
On January 18, 2012, the Unions filed an answer to the amended complaint in which
they denied that they had refused to bargain over the County's prevailing wage proposal and,
in fact, averred that the Unions agreed to the essence of the proposal that there be no increase
in the salaries or other compensation for bargaining unit employees during the period under
negotiations. The Unions also asserted various affirmative defenses, including lack of PERB
jurisdiction over the matters complained of and mootness inasmuch as the County had
unilaterally implemented its last, best and final offer that there be no increase in the prevailing
4

wage of unit employees for one year, without respect to how the formula would be calculated
in future years.
On March 26-27 and June 11, 2012, the ALJ presided over three days of formal hearing
at which the parties entered into the record several stipulations and 30 joint exhibits. The
parties simultaneously filed opening and closing briefs on August 21 and Septemqer 5, 2012.
On February 4, 2013, the cases were transferred to a second ALJ following retirement
by the initial ALJ. No party objected to the transfer.
On May 29, 2013, the second ALJ issued a proposed decision in which she detennined
that the Unions had refused to bargain over both County proposals at issue in this dispute.
On June 14, 2013, the Unions filed a statement of exceptions to the proposed decision,
a supporting brief and a request for oral argument. On July 24, 2013, the County filed a
response to the Union's exceptions.
FACTS
Unless noted below, neither party has excepted to the ALJ's findings of fact. The
Board finds the statement of facts set forth in the proposed decision is adequately supported by
the record and, with minor modifications, we adopt the ALJ's factual findings as the findings
of the Board itself.
The County is a public agency within the meaning ofMMBA section 3501,
subdivision (c), and PERB Regulation 32016, subdivision (a). The Unions are recognized
employee organizations within the meaning of MMBA section 3501, subdivision (b), and the
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exclusive representatives of all attorneys employed by the County as Deputy District Attorneys
and Deputy County Counsel.6
The County's Pension System
Unlike the vast majority of counties in California, the County does not contract with the
California Public Employees' Retirement System, and has not established a pension system
under the County Employees' Retirement Law of 1937 (Gov. Code,§ 31450 et seq). Rather,
since 1958, the County has maintained an independent pension system, the San Luis Obispo
County Pension Trust (Trust), pursuant to Government Code section 53215 et seq. In 1968,
the Board of Supervisors adopted a retirement plan and set of by-laws (collectively, "the Plan")
which govern the operation of the Trust. In or around 197 4, membership in the Trust became a
· mandatory condition of employment with the County.
The Trust is managed by a seven-member Board of Trustees, which is a separate and
independent entity from the County Board of Supervisors. (See Gov. Code, § 53219.) Three
members of the Board of Trustees are appointed by the County Board of Supervisors, three are
elected by County employees, and the seventh member, the County Treasurer, sits ex officio.
An Executive Secretary is responsible for running the day-to-day operations of the Trust, and
reports directly to the Board of Trustees. Since 1990, Albert A. ("Tony") Petruzzi (Petruzzi)
has been the Executive Secretary of the Trust.
The Trust is funded through a combination of employer appropriations, employee
contributions, and investment earnings. The Plan at section 5.01 defines the computation of
contributions in relevant part as follows:
6 SLOGAU represents a bargaining unit comprised of Deputy District Attorneys, while
DCCA represents a separate bargaining unit of Deputy County Counsel.
6

Each Member of the Pension Trust will contribute, by means of
payroll deduction, an amount of money equal to the Member's
normal rate of contribution times the Member's compensation
proportionate to the ratio of actual paid hours, less overtime, to
normal hours. The normal rates of contribution for all Members
shall be based on age at the nearest birthday at the time of most
recent entry into this Retirement Plan .... The schedules of rates
of contributions utilized by the Pension Trust shall be those
adopted by the Board of Supervisors upon recommendation of the
Board of Trustees. 	The Board of Trustees shall base its said
recommendation on the report of the actuary engaged by the
Board of Trustees.
(Emphasis added.) Section 5.02 of the Plan "Normal Rate of Contribution for Miscellaneous
Members," provides that "[ e]ffective January 1, 1989 and continuing thereafter in the absence
of affirmative contrary action by the Board of Supervisors, the normal rates of contribution for
Miscellaneous Members shall be those set forth in Appendix A. ... " (Emphasis added.)7
Section 5.05.1 of the Plan, "Employer 'Pick Up' of Normal Contributions," permits the
County to designate some of its appropriations to the Trust as "normal contributions" made on
behalf of employees. Plan section 16.05(a) sets forth the legal obligation of the County to
make appropriations to the Trust "as are found to be necessary. . . . Such appropriations shall
be made at the rate of total Member's salaries that is recommended by the actuary so that
sound actuarial funding of Pension Trust and the Retirement Plan is maintained." Plan
section 19.03 addresses the funding of cost of living adjustments. Plan section 19.03(a)
requires the establishment of a "Cost of Living Reserve Fund." Plan section 19.03(b) provides
that the County "shall contribute" to the Cost of Living Re~erve Fund on a monthly basis at the
percentage of members' salaries that is recommended by the actuary.
7 Appendix A-1 sets forth the differing percentage of contributions, depending upon the
age of the employee upon his or her entry into the Plan. The different contribution percentages
are not at issue in this dispute.
7

Section 16.04 of the Plan requires actuarial investigations to be conducted at least every
two years. Annual actuarial investigations are also allowed under this section of the Plan and
are more common, according to Petruzzi. The Board of Trustees contracts with independent
accounting firms to provide these actuarial services. The purpose of the report by an actuary is
to determine the "valuation" of the Plan by evaluating the assets and liabilities of the Trust in
order to ensure that it is fully funded and solvent. As described by Petruzzi, the costs normally
associated with funding the Trust are the costs of funding the liabilities. The "normal" cost is
the current year's accrual ofretirement benefits. The unfunded liability, sometimes referred to
Unfunded Actuarial Accrued Liability (UAAL) is where the assumptions that the Trust uses to
fund the plan were not met in some way, such as when investments did not earn the expected
rate ofreturn, or salaries exceeded the expected levels. Finally, there is a Cost of Living
Adjustment (COLA) that, according to Petruzzi, is to be solely funded by the County.
Plan section 16.04 further provides:
Upon the basis of the investigation, valuation, and
recommendations of the actuaries, the Board of Trustees shall
recommend to the Board of Supervisors such changes in the
rates of interest, in the rates of contributions of Members, and
in County and District appropriations as are necessary.
(Emphasis added.) The County introduced into the record several contracts between the Board
of Trustees and its actuaries between 1986-2008. These contracts provided that if increases or
decreases in "contribution rates" were deemed necessary by an actuarial investigation, the
actuarial report should express the required increases or decreases in several alternatives. The
various possibilities ranged between either the County or employees bearing 100 percent of the
increase (or decrease), to the County and employees sharing the change in contribution in
various percentages. According to Petruzzi, the reason for the presentation of several
8

alternatives was to inform the negotiations process between the County and affected employee
groups and to provide examples of the manner in which the rate change might be allocated
between the County and employees. In Petruzzi's opinion, the Board of Trustees is not
enabled or permitted to dictate to the County how an increase or decrease in pension funding
should be allocated between employer appropriations and employee contributions.8 Rather, the
Board of Trustees' responsibility in this regard is simply to inform the County of the total
required rate of appropriation and to leave to the collective bargaining process to determine
how much-if any-of the rate increase or decrease should be applied to employee
contribution rates.
The Prevailing Wage Ordinance
In 1984, the electorate adopted section 2.48.180 of the County Ordinance Code
providing verbatim:
In fixing compensation to be paid to persons in the county's
employ, the board of supervisors and every other authority
authorized to fix salaries or wages, shall provide a percentage
change in compensation at least equal to the percentage change
in compensation for the same quality of service rendered to
persons, governmental agencies, firms or corporations under
similar employment.
Prevailing salaries or wages shall be determined by negotiations
between the county's employer representatives and the
recognized employee organization(s).
In case such prevailing salaries or wages cannot be agreed to by
the parties, the matter may be submitted to a mutually selected
8 Leslie Thompson (Thompson), the current actuary, shares this opinion. In response to
an inquiry from Petruzzi over common practices for her clients, Thompson stated that when an
actuarial valuation is performed, she provides the total contribution required, and then clients
who are subject to collective bargaining agreements later negotiate the "split." According to
Thompson: "It is not the position of the actuary to set policy on the funding of the plan, and
that includes policy on the source of the funds."
9

arbitrator who shall make advisory recommendations to the
negotiation parties.
(Emphasis added.)
History of the Parties' Disputes Regarding Pension Contributions and the Prevailing Wage
Ordinance
I. 	The County Proposes Increases in Employee Pension Contributions
In January 2007, the Board of Trustees recommended a significant overall increase in
the County appropriation rate, which amounted to an approximately 7.66 percent increase in
pension contributions for the DCCA-represented bargaining unit.9 However, the resolution
passed by the Board of Trustees did not expressly recommend an increase in employee
contribution rates. The Unions attributed the increase to the adoption in 1997 of a "corridor
funding policy," whereby, if the Trust remained within 90 percent to 110 percent funded as
determined by the actuary, then the County, according to the Unions, was permitted to
contribute less than what was actually required by the Trust. In 2007, the Trust fell below the
90 percent threshold. In the Unions' view, this underfunding practice over the years had
significantly increased the UAAL, which, along with the COLA, they contend was the sole
responsibility of the County to fund under the "express" terms of the Plan. The Unions point
to Article 19 of the Plan to support their argument that COLA funding is the exclusive
obligation of the County. The Unions, however, do not identify any particular Plan section
that obligates the County to exclusively fund increases in pension contributions tied to the
UAAL.
The recommended increases varied by employee bargaining unit. At this time,
SLOGAU and the County were parties to a memorandum of understanding (MOU) in effect
through June 2010. A "me too" provision in the MOU provided that employees represented by
SLOGAU would receive the same level of benefits and compensation as those represented by
DCCA.

Upon learning of the pension contribution increases recommended by the Board of
Trustees, the County requested bargaining with the Unions. In negotiations with DCCA, 10 the
County proposed that the employee contribution rate be increased by 2.5 percent. DCCA took
the position that it was not required to bargain with the County over the amount of an increase
in employee pension contribution rates because such increases can only be implemented in
accord with Plan sections 5.01 and 16.04. DCCA argued that because the Board of Trustees
stated the recommended increase in terms of the County rate of appropriation only, and did not
also specifically state that employee contribution rates should be increased by any percentage
or amount, the Board of Trustees intended that the increase be borne only by the County and
not by employees. According to the Unions' interpretation of the Plan, because only the Board
of Trustees can determine the rates or amounts of contributions, and because it may make such
determinations based solely on the recommendations of the actuary, the amounts and/or the
relative shares of contributions by the County and its employees are not proper subjects for
bargaining.
After negotiations reached impasse, the Board of Supervisors adopted a resolution in
June 2008 that implemented the 2.5 percent increase in DCCA-represented employees' perision
contribution rate, and the Board of Trustees soon thereafter adopted its own resolution
confirming this increase. In accord with the "me too" provision in SLOGAU's MOU, the
County and the Board of Trustees passed similar resolutions imposing a 2.5 percent increase in
the pension contribution rate for SLOGAU-represented employees.
Apparently no bargaining occurred with SLOGAU at this time because of the "me
too" provision tying the compensation and benefits for the SLOGAU-represented unit to the
terms applicable to DCCA-represented employees.
11

In August 2008, the County and DCCA began negotiations over terms and conditions
of employment for the 2008-2009 fiscal year. The negotiations were protracted and effectively
merged with negotiations for 2009-2010. The County again proposed that employees continue
to share in paying for the cost of pension increases with the County. The County proposed that
employee contributions be increased by a total of 1.55 percent. Again, DCCA took the
position that it was not required to negotiate with the County over increases in employee
contributions, which could only be mandated by the Board of Trustees upon recommendation
of the Plan actuary. After negotiations again resulted in impasse, in April 2010, the County
imposed and the Board of Trustees confirmed an increase in DCCA-represented employees'
contribution rate of 1.3 2 percent retroactive to July 1, 2008, and .23 percent retroactive to
July 1, 2009. These same increases were also imposed on SLOGAU-represented employees
pursuant to the "me-too" MOU provision.
IL 	Disputes Over Prevailing Wages During Prior Negotiations
In October 2003, the County agreed to a "pension benefit enhancement" whereby the
County's "pick-up" of employee contributions would be treated as pensionable income. As a
result, employees represented by both Unions received a 9 .29 percent increase in pensionable
income. ,According to the County, the cost of this benefit amounted to approximately
3.06 percent of wages. In exchange for the enhancement, the Unions agreed to a 1.53 percent
"offset," i.e., reduction, from what employees would have received under the prevailing wage
formula during fiscal years 2003-2004 and 2004-2005. The Unions maintain that they were
informed upon agreeing to this offset that it would remain in effect only for those two years.
12

In December 2006, the County passed a resolution that repealed the prevailing wage offset.
This resolution acknowledged that employees had been subject to a prevailing wage offset as
payment for a portion of the pension enhancement. The resolution further stated that "[t]his
offset is now being assumed by the County."
According to the Unions, through the 2006 resolution, the County "permanently"
agreed to assume the entire cost of the pension benefit enhancement and to eliminate the
prevailing wage offset. In the Unions' view, as a result of the County's action:
employees performing services thereafter earned as part of their
return consideration the vested contractual right to continue to
receive this pension enhancement without having to bear any
additional cost, whether through a reduction in their entitled
prevailing wage or otherwise.
During negotiations in 2008-2009 and 2009-2010, however, the County proposed to revive the
prevailing wage offset. The Unions maintained that this change interfered with their "vested
contractual rights" to have the County "fully fund" the pension enhancement, and to receive
prevailing wages under the ordinance. The County's unilateral imposition of terms and
conditions of employment in 2008-2009 and 2009-2010 included a reinstatement of the
prevailing wage offset.
The County also proposed to change the methodology used in calculating the value of
insurance benefits provided in comparable employment settings in computing the prevailing
wage during the 2008-2010 negotiations. Previously, the value of benefits was calculated
based on the maximum contributions available under comparable employers' plans-i.e.,
typically the plan for an employee plus two or more dependents. 	The County proposed instead
13

to average the employers' contribution rates paid across different categories-i.e., employee
only, employee plus one dependent, etc. The Unions argued that, in the absence of a voter-
approved amendment to the Prevailing Wage Ordinance, no deviation in the methodology used
to calculate the prevailing wage is permitted, because the only way to determine the requisite
percentage change under the ordinance is to use the same methodology every year. Otherwise,
one is not comparing "apples to apples," but to something else. The Unions also contend that
the County's unilateral imposition of changed methods of calculation of prevailing wages
impaired their represented employees' vested contractual rights under the ordinance.
Negotiations in 2010-2011
The parties' disagreements regarding the negotiability of increased employee pension
contributions and changes to the prevailing wage calculation bled into the next round of
negotiations which are the subject of the present dispute.
On April 30, 2010, County Director of Human Resources Tami Douglas-Schatz
(Douglas-Schatz) sent a letter to SLOGAU President Andy Cadena requesting negotiations for
a successor MOU. On June 15, 2010, Douglas-Schatz also wrote to DCCA President Ann
Duggan requesting bargaining for a new contract. Jeff Sloan (Sloan) was the chief negotiator
for the County and Stephen Silver (Silver) was the chief negotiator for the Unions. Sloan and
Silver both testified to their participation in negotiations. Ultimately, the parties met
seven times over 10 months but were unable to reach agreement. The bargaining sessions and
pertinent communications between the parties are briefly summarized as follows.
14

1. 	First Meeting - July 28, 2010
The County's bargaining team met separately with the bargaining teams for both
Unions. No proposals were exchanged, but Douglas-Schatz shared with the Unions her
instructions from the County for 2010-2011 bargaining; these instructions were three-fold:
(1) explore the possibility of a two-tier retirement system for newly hired employees;
(2) attempt to reach an agreement that employees would share, roughly equally, in any
increased pension costs; and (3) re-evaluate the calculation of the prevailing wage.
On August 30, 2010, Sloan sent Silver the County's opening bargaining proposals. The
County proposed to split equally with employees a 1.11 percent total increase in pension
contributions that had been recommended by the Board of Trustees after actuarial analysis in
2009. The 1.11 percent recommended increase was attributed to 0.29 percent increase in the
cost of the COLA, 0.27 percent increase in the normal cost of the basic pension benefit, and
0.55 percent increase in the UAAL. 11 The County also proposed that the salary rate for 2010-
2011 should not be increased from 2009-2010, that the list of comparable employers used to
calculate the prevailing wage should be modified, and that the prevailing wage offset to fund
the pension enhancement continue.
2. 	Second Meeting - August 31, 2010
At their separate meetings on this date, the Unions and the County discussed holding
joint bargaining sessions in the future. 	In response to the County's opening proposals, Silver
told County representatives that the Unions did not believe that they could bargain over the
issue of increased employee pension contributions. Silver testified at the hearing that the
11 The Unions' position is that, historically, employees' contributions have only been
applied to fund the nonnal cost of the basic pension benefit.
15

Unions felt that they were being put in an "impossible position" because of the Unions'
pending lawsuit against the County. According to Silver, the Unions also made "very clear" to
the County their concerns that negotiations on the County's proposals would expose them to the
risk of being sued by bargaining-unit employees for unlawfully bargaining away their vested
rights. Silver stated:
[W]e also realized that, ifwe were to negotiate, the County could
very well use that as an admission against us in the pending
litigation, because our position was that rates are not subject to
negotiations. They're only subject to being implemented in
accordance with the terms of the plan. So, we were just in a
difficult position. We could not negotiate. So, we explained that
to the County at that time.
DCCA presented a written "Counter Offer" to the County at this meeting. In relevant part,
DCCA proposed that the County rescind the increased employee pension contributions that
were unilaterally imposed in 2008 and 2010. DCCA further reiterated that its members would
not agree to have any term of their pension plan included in a collective bargaining agreement.
Regarding the prevailing wage issue, the Unions proposed that compensation determinations
be based on the five "comp" counties proposed by the County and two additional counties, and
that "the value of making the pick-up pensionable shall not be included as a component of
compensation. . .. "
3. 	Third Meeting- September 9, 2010
At this meeting, the County agreed to conduct joint negotiations on common
issues with both Unions. After a presentation by the County regarding its prevailing wage
proposals, Silver expressed the idea that any change in the methodology of calculation of the
prevailing wage would result in the impainnent of employees' vested right to receive a
percentage change under the ordinance. Silver testified:
16

[W]e couldn't agree to something that would not afford our
members what they were entitled to under the prevailing wage
ordinance. . . . [T]he ordinance only called for a percentage
change . . . . And l remember using the, comparing apples to
apples, analogy by saying you can only calculate a percentage
change by comparing apples to apples.
In other words, the Unions' stance on this issue was that once the comparable employers had
been initially settled on, they could never be changed. 12 In the Unions' view, changing the
comparable employer pool would mean that the percentage change for that year could not be
determined and this would violate the ordinance.
4. 	Fourth Meeting - September 21, 2010
No proposals were exchanged at this meeting. In an e-mail sent by Sloan to Silver
before the meeting, Sloan acknowledged that although the County was asking employees to
share in pension cost increases, the employees' share should be limited to the normal cost of
the basic benefit. Sloan also stated that the County was "well aware" that the County is
required to pay amounts identified for COLA and the UAAL, but opined that "that does not
mean that the County is obligated to ignore increases in COLA and UAAL costs when
deciding what to propose in bargaining." Silver responded to Sloan via e-mail. He proposed
that if the parties were willing to view the issues simply in economic terms they might have
a chance for agreement. Silver suggested that what the County was really seeking was a
.56 percent reduction in compensation in "any agreeable form." From that starting point,
Silver indicated, the Unions would be willing to talk, but not from the perspective of requiring
agreement over pension cost sharing.
12 The Unions acknowledged that their argument would not apply to changes to the
comparable employer pool resulting in a higher prevailing wage than the prior comparators.
Thus, the Unions were prepared to negotiate enhancements, but not concessions, on this
subject.
17

On January 31, 2011, after the filing of the unfair practice charges in this matter, Sloan
wrote to Silver summarizing negotiations up to that point and stating his understanding of the
parties' respective positions regarding pension cost sharing and the prevailing wage issues.
Silver responded by letter to Sloan on February 8, 2011. Silver clarified the Unions' position
regarding employee pension contributions by stating that "historically the only times there
were negotiations over the allocation of rate increases were (1) when the County agreed to
'pick-up' a portion of the required member contributions, and (2) when obtaining an enhanced
benefit that would require additional funding." Silver asserted that after reviewing records of
the Trust, the Unions had found no evidence that employee organizations and the County had
ever bargained over increases in employee contribution rates that resulted solely from changes
in actuarial assumptions (without a concomitant change in the level of benefits). Regarding the
dispute over calculation of the prevailing wage, Silver stated that "both employee
organizations recognize that the Ordinance allows for negotiations (1) regarding an increase
that is granter [sic] than that percentage change in the prevailing wage and (2) to clarify any
differences regarding the calculation of that percentage change."
5. 	Fifth Meeting - March 29, 2011
At this meeting, the County presented a "package" proposal applicable to both units.
This proposal still sought to split equally between the County and employees any increase in
pension costs, but clarified that the employees' share was not to exceed the normal cost of the
basic pension benefit. Regarding the prevailing wage issue, the County still proposed no wage
increase during the term of the agreement but also proposed forming a subcommittee to review
a draft classification study and to further study and refine as necessary the formula for
calculating the prevailing wage. The Unions viewed the County's proposal on this date as
18

being virtually identical to its opening bid with the exception of changes in the term of the
agreement from one year to two and the proposal of the subcommittee. According to Silver,
the Unions' view that agreeing to these proposals would mean· abridging the vested rights of its
members remained the same.
6. 	Sixth Meeting - April 19, 2011
No proposals were exchanged at this meeting. However, on May 2, 2011, Silver wrote
to Sloan with identical counter proposals from DCCA and SLOGAU in response to the
County's package proposal of March 29, 2011. The Unions proposed to waive a percentage
increase in the prevailing wage for 2010-2011 only and to make no changes to employee
compensation or other terms or conditions during the same time period.
7. 	Seventh Meeting - May 3, 2011
This meeting was the last time the parties met in-person. The County rejected the
Unions' counter proposals delivered the day before. Silver believed, but was not certain, that
he proposed at this session that the Unions agree to split increases with the County on the
normal cost of the basic plan, with the County paying 60 percent and the Unions paying
40 percent, if the County would agree to pay 100 percent of increases to the COLA and UAAL.
Silver was also uncertain whether this verbal proposal was made during an off-the-record
discussion with Sloan, or formally during the meeting. In. either event, no written record of
this offer was introduced into the record.
County representatives declared impasse and, shortly after the meeting, followed up
with a written confirmation of impasse which included the County's "final" offers to the
Unions. These offers were virtually identical to those presented on March 29, 2011.
19

The parties began, but did not complete, an impasse meeting pursuant to procedures in
the County's local rules, which require mutual consent for mediation. The Unions requested
mediation, but the County declined. The impasse meeting was later completed via telephone
conference call on June 14, 2011, thereby concluding the impasse procedure.
8. 	Post-Impasse
On July 22, 2011 Sloan wrote to inform Silver that County staff would urge the Board
of Supervisors to unilaterally implement the County's attached last, best, and final offers to the
Unions, which were identical to the final offers presented on May 3, 2011. On July 27, 2011,
Silver wrote to the Board of Supervisors urging them not to unilaterally adopt the County's
last, best and final offers because the Unions believed that doing so would violate the terms of
the Plan. Silver urged the Board of Supervisors to adopt the Unions' final proposal instead,
which was identical to that presented on May 2, 2011, with the addition that employees'
salaries would be reduced by .56 percent for the 2010-2011 fiscal year. 13 On August 31, 2011,
the Board of Supervisors authorized the unilateral implementation of the County's last, best·
and final offers to the Unions.
THE PROPOSED DECISION
The issues identified in the amended complaint were whether the Unions had
unlawfully refused to negotiate regarding the County's proposals to change the formula and/or
increase the amounts of employee pension contributions and to change the definition and/or
13 The Unions' final written offers made no reference to a "60-40" split between the
County's and employees' share of increases in normal pension contributions as Silver
suggested he had proposed verbally either "on" or "off' the record on May 3, 2011. Because
of Silver's vacillation during testimony regarding this point and the lack of documentary
evidence to support his claim, the ALJ concluded that no such formal proposal was made
during negotiations.
20

formula for calculating the prevailing wage under the County's Prevailing Wage Ordinance.
Because the ALJ analyzed both allegations as outright or per se refusals to bargain rather than
as "surface bargaining" allegations, the proposed decision was not concerned with whether the
Unions lacked the subjective good faith required by the MMBA. Although the ALJ's
reasoning differed as to each allegation, the proposed decision determined that the Unions had
violated the MMBA and PERB regulations by outright refusing to bargain over both proposals.
With respect to the pension contribution allegation, the ALJ offered two reasons to
support her determination that the Unions had refused outright to bargain. First, the ALJ relied
onJhe judicial doctrine known as the conclusiveness of pleadings, under which, an admission
of material allegations in a party's pleading removes that issue from controversy and bars the
party from offering any evidence contrary to its admission. 14 Because the Unions had admitted
in their answers to the complaints that they had "refused to bargain" with respect to the
County's pension contribution proposal, the ALJ determined that these admissions were
conclusive, and that it was unnecessary to examine the totality of their conduct to ascertain
whether they had a sincere intent to reach agreement. Therefore, the only remaining issue to
determine for this allegation was whether the County's proposal was within the scope of
representation or whether, as the Unions maintained, it was non-negotiable, because it would
impair vested rights set forth in the Plan and protected by the California and federal
Constitutions.
14 As discussed below, although the conclusiveness of pleadings is a judicially-
developed doctrine, PERB has previously invoked the doctrine in its decisional law. (Regents
of the University of California (2012) PERB Decision No. 2302-H (Regents), proposed dee. at
p. 15, citing Pinewood Investors v. City of Oxnard (1982) 133 Cal.App.3d 1030, 1035.)
21

Alternatively, the ALJ determined that, even without the Unions' admission in their
answers, their conduct during negotiations also constituted an outright refusal to bargain, because
the Unions would not entertain the County's proposal and instead insisted on limiting the
discussion to their own proposal to provide the County with an equivalent or greater dollar
amount in savings through salary reductions.
Regarding the negotiability of the County's pension contribution proposal, the ALJ
rejected the Unions' contention that, because employee pension rights "vest" upon acceptance of
employment, the substantive future benefits are removed from the scope of bargaining. Citing
various PERB and federal precedent holding that future retirement benefits of current employees
are "part and parcel of their overall compensation," the ALJ reasoned that employee
contributions toward such benefits are likewise negotiable. The ALJ also reviewed California
and federal cases holding that previously negotiated retirement benefits may be modified or even
eliminated through collective bargaining, provided such changes are reasonable, bear a material
relationship to the integrity and success of the pension system, and include comparable
advantages to offset any disadvantages to employees. Although the proposed decision did not
address each case relied on by the Unions individually, the ALJ nonetheless explained that,
"none of the cases cited by the Unions, including those that are omitted from the discussion
herein, hold that in light of vesting rights, chai1ges in employees' pension contribution rates or
other proposed modifications to current employees' pension plans are therefore specifically
excluded from the scope of bargaining under applicable collective bargaining statutes."
(Proposed dee. at p. 27, original emphasis.)
22

With respect to the second allegation, i.e., that the Unions refused to bargain over the
County's prevailing wage proposal, the ALJ acknowledged that the Unions did not oppose, and
in fact, agreed to, that part of the County's proposal to freeze employee salaries in 2010-2011,
and that they were thus willing to forego their right to any percentage change under the
ordinance for that year. However, the ALJ observed that the proposed wage freeze was only
one part of the County's proposal; it would also establish a committee to study and modify the
methodology used to calculate the prevailing wage.
According to the ALJ, the Unions "steadfastly maintained" during bargaining that the
County's proposal to change the methodology for calculating the prevailing wage would not
result in an "apples to apples" comparison and so the required percentage change could not be
calculated. The proposed decision also found that the Unions would not engage in discussion
of the proposed study, "because they believed that doing so could impair their members
'vested contractual rights' under the Ordinance."
The ALJ rejected the Unions' argument that there was no need to bargain over any
changes to "future" prevailing wage methodology, because the Unions had agreed to freeze
employee salaries for 2010-2011. Citing City of Torrance (2008) PERB Decision No. 1971-'M,
the ALJ reasoned that the Unions' willingness to discuss and agree to portions of the County's
prevailing wage proposal "does not preclude the finding of a per se violation," where the
record demonstrated a refusal to discuss other, negotiable portions of the proposal, which were
"separate and distinct from the salary freeze component." Additionally, the ALJ reasoned that
the Unions' bargaining obligation was not excused by their belief that a conflict with other
statutory schemes might occur, since the proposed committee never formed or proposed actual
changes to the prevailing wage formula.
23

DISCUSSION
The Unions have asserted 10 exceptions to the proposed decision, which, for the purposes
of the discussion below, have been grouped as follows: Two exceptions challenge the ALJ's
determinations that the Unions failed and refused to bargain over both the County's pension
contribution and prevailing wage proposals. Most of the remaining exceptions take issue with
the ALJ' s interpretation of the Pension Plan, and with the ALJ' s interpretation of statutory and
decisional law regarding the negotiability of employee pension benefits. 	Aside from one
exception disputing the accuracy and significance of testimony by Petruzzi, the Executive
Secretary of the Pension Trust, regarding the role of actuarial recommendations in setting the
amounts of member contributions, the Unions have not specifically excepted to any of the ALJ's
factual findings.
In response to the County's proposal to increase employee pension contributions, the
Unions proposed a salary cut designed to achieve an equivalent amount in cost savings. The
Unions also demanded maintaining the status quo regarding pension contributions and benefits.
According to the Unions, in proposing to increase ·employee pension contributions, what the
County was really demanding was a .56 percent reduction in employee compensation and,
because the Unions were more than willing to negotiate to meet that demand "in any agreeable
form," they contend that their actual conduct belies any conclusion that they refused to bargain. 15
5 In their exceptions, the Unions argue that their counteroffer for a pay cut instead of a
change in the retirement benefits formula would actually provide greater cost-savings than the
County's proposal. While "not absolutely certain," because she had not "consider[ ed] every
piece of it," Douglas-Schatz admitted on cross-examination that it "could be true" that the
Unions' proposal would have saved the County more money than the language proposed and
ultimately imposed by the County.
24

Exception to the ALJ's Conclusion that the Unions Refused to Bargain Over the Pension
Contributions Proposal.
The Unions except to the ALJ's reliance on the conclusiveness of their pleadings as
one-sided and contrary to public policy. 16 The Unions do not deny that in answering the
complaints, they stated that they had "refused to bargain" over the pension contribution
proposal. However, they contend that the ALJ gave undue emphasis to these "qualified"
admissions, while simultaneously and selectively ignoring similarly "careless" statements
made by counsel for the County during the course of these proceedings. 17
The Unions also argue that, if adopted, the proposed decision would create perverse
incentives that are contrary to the MMBA's fundamental purpose of promoting full
communication between public employers and their employees. Because the duty to bargain
does not require making concessions or agreeing to any proposal, the Unions argue that they
have been penalized for their candor in explaining the basis of their disagreement with the
County, whereas if they had simply stood on their rights and refused to agree to the proposal,
without explanation, they would face no liability in this matter. We reject both arguments.
16 In addition to arguing that they should not be held to the admissions contained in
their answers, the Unions also except to the ALJ's alternative reasoning, i.e., that their actual
conduct constituted a refusal to bargain over the County's pension contributions proposal.
However, because the Board does not adopt that portion of the proposed decision, we find it
unnecessary to address the Unions' arguments on this point.
17 At the hearing, Sloan occasionally described the Unions' position as a "rejection" of
the County's proposal, rather than a refusal to bargain over that proposal. During his
testimony as a witness to negotiations, Sloan testified that, "the parties were frequently
exchanging information regarding the County's proposal for increased pension contribution
rates for represented employees," and that, "in the context of the ebb and flow of negotiations,"
Sloan attempted to provide the Unions with information about the County's pension
contributions proposal, which was "central to negotiations."
25

Where a party to negotiations refuses to discuss a particular subject or proposal based
on the belief that it encompasses matters outside the scope of mandatory subjects, the .
lawfulness of that refusal turns on whether the subject or proposal is negotiable. (Sierra Joint
Community College District (1981) PERB Decision No. 179 (Sierra), pp. 6-7.) Because the
obligation to meet and confer promptly upon req1:1est regarding mandatory subjects of bargaining
is absolute (Dublin Professional Fire Fighters, Local 1885 v. Valley Community Services Dist.
(1975) 45 Cal.App.3d 116, 118), there is no "good-faith doubt," "mistake oflaw" or similar
defense available when a party has refused outright to meet or negotiate, because it denies or
entertains doubt as to the negotiability of a proposal. (San Mateo County Community College
District (1993) PERB Decision No. 1030 (San Mateo), p. 12; Sierra, supra, PERB Decision
No. 179, pp. 6-7; El Monte Union High School District (1982) PERB Decision No. 220, p. 11;
San Francisco Community College District (1979) PERB Decision No. 105, pp. 7-8, 12-16.) If
the matter is within scope, then the refusal to discuss it is a per se violation of the duty to
bargain and, unlike a surface bargaining allegation, no further inquiry into the respondent's
subjective motive is necessary. (Fresno County In-Home Supportive Services Public Authority
(2015) PERB Decision No. 2418-M, p. 15; Charter Oak Unified School District (1991) PERB
Decision No. 873 (Charter Oak), p. 8, fn. 3; California State University (1990) PERB Decision
No. 799-H, adopting proposed dee. at pp. 51-52; NLRB v. Katz (1962) 369 U.S. 736, 742-743.)
As explained in the proposed decision, the Unions admitted in their answers to the
complaints that they had "refused to bargain" over the County's proposal to change the
formula for allocating pension costs between employees and the County. Both in their answers
and during negotiations, the Unions argued that they could not legally negotiate over the
C~unty's pension contribution proposal, because it would weaken their position in separate
26

litigation filed in superior court over the same issue, and that any agreement they might come
to on this matter could subject them to legal action by unit members for bargaining away
vested employee rights. The Up.ions thus argued that they were legally privileged to refuse to
meet and confer over these issues, because the rights are protected from impairment or
abrogation by the contract clauses of the California and federal constitutions, and because a
recognized employee organization cannot legally bargain away the vested rights of the
employees it represents. Moreover, as the ALJ noted, although the Unions' admission in their
pleadings was repeatedly referenced during the hearing, they never requested leave to amend
their answers.
Under the doctrine of "conclusiveness of pleadings," a pleader is bound by
well pleaded material allegations or by a failure to deny well pleaded material allegations.
(Code Civ. Proc., § 431.20.) Facts admitted or not denied in a pleading are considered "judicial
admissions," which are conclusive on the pleader. A "judicial admission" is therefore not
regarded procedurally as "evidence." It is fundamentally different from evidence in that it serves
as a waiver ofproof of the fact admitted and has the effect of removing the matter from
controversy. 	(Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271,
modified (Dec. 3, 2002), citing 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 413,
pp. 510-511.) A judgment may rest in whole or in part on the admission without proof of the
fact. (Malone v. Roy (1897) 118 Cal. 512,514; Brown v. Aguilar (1927) 202 Cal. 143, 149;
Giguiere v. Patterson (1934) 138 Cal.App. 167, 171-172.)
The doctrine concerns only matters admitted in the pleadings, such as a party's answer
to a complaint. It does not apply to admissions by a party-opponent or statements made by a
party's representative in the _course of a hearing. (Evid. Code, § 1222; 0 ~Mary v. Mitsubishi
27

Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570.) Although the trier of fact is
ordinarily free to consider such statements (see, e.g., Evid. Code,§§ 1221, 1222, 1271, 1280;
O'Mary v. Mitsubishi, supra, 59 Cal.App.4th 563,572; Jazayeri v. Mao (2009)
174 Cal.App.4th 301, 315-327), because an admission in the pleadings forbids consideration of
contrary evidence, any discussion of evidence offered to rebut a judicial admission is irrelevant
and immaterial. (Valerio v. Youngquist Constr., supra, 103 Cal.App.4th 1264, 1271, citing
Braverman v. Rosenthal (1951) 102 Cal.App.2d 30.) Thus, even assuming we agreed with the
Unions' interpretation of statements made by counsel for the County during negotiations or at
the hearing, under the conclusiveness of pleadings doctrine, the ALJ was correct to disregard
such statements to the extent they were offered to rebut the Unions judicial admission that they
had "refused to bargain" over the County's pension contributions proposal.
We are sensitive to the fact that PERB is not a court, but an administrative agency, and
that the formalities of practice and procedure in the judicial system are not always appropriate
for fulfilment of PERB's mission, which includes assisting parties and representatives who are
laypersons. (PERB Regs. 32175, 32176, 32180, 32620, subd. (b)(l); Reed District Teachers
Association, CTA/NEA (Reyes) (1983) PERB Decision No. 332, p. 6; California State
University, Hayward (1987) PERB Decision No. 607-H, p. 21; Los Angeles Community
College District (1994) PERB Decision No. 1060, p. 9; Los Banos Unified School District
(2007) PERB Decision No. 1935, adopting warning letter at p. 2.) However, PERB has
previously relied on the conclusiveness of pleadings doctrine. (Regents, supra, PERB
Decision No. 2302-H, proposed dee. at p. 15.) Despite its potential for harsh results, we find
nothing wrong with the ALJ's application of the doctrine here to find that the Unions refused
28

to bargain over the County's retirement proposal and that consideration of evidence on this
issue was unnecessary.
Nor do we agree with the Unions that application of the conclusiveness of pleadings
doctrine in this case unfairly punishes the Unions for their candor or creates perverse
iJ?-centives for parties to withhold their reasons for rejecting a bargaining proposal. The Unions
are correct that the duty to bargain does not compel either party to reach agreement or make
concessions. (Saddleback Valley Unified School District (2013) PERB Decision No. 2333, p. 7;
Oakland Unified School District (1981) PERB Decision No. 178 (Oakland), pp. 7-8.) Even if a
party's reasons for insisting that a particular subject be included or excluded from the contract
are questionable, if the reasons offered are sincerely held, the position may be adamantly
maintained even to the point of impasse. (Placentia Fire Fighters v. City of Placentia (1976)
57 Cal.App.3d 9, 23 (City of Placentia), citing NLRB v. Herman Sausage Co. (5th Cir. 1960)
275 F.2d 229, 231-232 (Herman Sausage).)
However, a flat refusal to reconcile differences, by failing to offer counterproposals
may be an indicator of bad faith, if no explanation or rationale supports the refusal (Oakland,
supra, PERB Decision No. 178, p. 8), while a refusal to offer some explanation or
substantiation for one's position, where such information exists and has been requested,
constitutes an outright refusal to bargain. (County of Solano (2014) PERB Decision
No. 2402-M, pp. 11-12; NLRB v. Truitt Mfg. Co. (1956} 351 U.S. 149, 152-153.) We therefore
reject the Unions' suggestion that they could have escaped liability in this dispute by simply
refusing to agree and withholding their true reasons for doing so. 	In fact, the result would have
been the same, as adamant refusal to agree without some justification is no less an unfair practice
29

than a flat refusal to discuss a negotiable subject at all. (San Mateo, supra, PERB Decision
No. 1030, p. 12; Mt. Diablo Unified School District (1983) PERB Decision No. 373, p. 24.)
Exceptions to the ALJ's Interpretation of Statutory and Decisional Law
Several of the Unions' exceptions dispute the ALJ's interpretation of statutory or
decisional law regarding the negotiability of pension benefits. The Unions challenge the
accuracy and relevance of the ALJ's discussion offederal authority regarding the negotiability
of retirement benefits, while they assert that the proposed decision "does not refute, address or
even mention" California appellate cases purportedly holding that employee organizations
cannot bargain away the vested rights of the employees they represent. 18 The Unions do not
dispute that "even vested retirement benefits can be reduced or adversely altered if they are
accompanied by comparable new advantages," but they except to the proposed decision's
application of that rule in the present context, because, as they point out, the County never
proposed any comparable advantages to offset the proposed disadvantages to employees. They
argue that in the absence of any comparable offsetting advantages, the bargaining obligation
does flow in only one direction, i.e., that while they may bargain for greater benefits, under
California law, they cannot agree to lesser benefits with respect to vested employee rights.
In a similar vein, the Unions except to the ALJ's statement that, "none of the cases
cited by the Unions ... hold that in light of vesting rights, changes in employees' pension
contribution rates or other proposed modifications to current employees' pension plans are ...
18 In addition to Allen v. City of Long Beach (1955) 45 Cal.2d 128, 131, the Unions
except to the ALJ's failure to discuss Florio v: City of Ontario (2005) 130 Cal.App.4th 1462,
Phillips v. State Personnel Bd. (1986) 184 Cal.App.3d 651, Wright v. City ofSanta Clara
(1989) 213 Cal.App.3d 1503 and California League of City Employee Associations v.
Palos Verdes Library Dist. (1978) 87 Cal.App.3d 135 (Palos Verdes Library Dist.).
30

specifically excluded from the scope of bargaining under applicable collective bargaining
statutes." (Emphasis in original.) They assert, to the contrary, that "no California reported
case holds that such proposed changes are within the scope of bargaining," and they point to
various cases which they contend come to exactly the opposite conclusion. 19
The Unions are correct that not all offhe authorities cited in their post-hearing briefs,
including various California authorities, were specifically mentioned or discussed in the
proposed decision. In fact, the ALJ acknowledged that she would not address every case
individually, but that, after having reviewed the cases, in her view, none necessarily supported
the Unions' position.2° Nor, under the circumstances, do we think it would have been
necessary or desirable for the ALJ to dissect each case individually, so long as the substance of
the Unions' position was addressed by the proposed decision, which we find to be the case.
Article 1, section 9, of the California Constitution prohibits passage of a law impairing
contractual obligations.21 As interpreted by California courts, the contract clause limits the
19 h1 this context, the Unions cite Mendocino County Employees Assn. v. County of
Mendocino (1992) 3 Cal.App.4th 14 72, International Brotherhood of Electrical Workers v.
City of Redding (201_2) 210 Cal.App.4th 1114, and Cal(fornia Assn. of Professional Scientists
v. Schwarzenegger (2006) 137 Cal.App.4th 371.
20 The ALJ explained that, in her view, "none of the cases cited by the Unions,
including those that are omitted from the discussion herein, hold that in light of vesting rights,
changes in employees' pension contribution rates or other proposed modifications to current
employees' pension plans are ... specifically excluded from the scope of bargaining under
applicable collective bargaining statutes."
21 "A ... law impairing the obligation of contracts may not be passed." (Cal Const.,
art. I, § 9.) The federal Constitution's contracts clause similarly provides that, "No State
shall ... pass any ... Law impairing the Obligation of Contracts." (U.S. Const., art. I, § 10,
cl. 1.)
31

state's power "to modify its own contracts with other parties, as well as contracts between other
parties." (Board ofAdministration v. Wilson (1997) 52 Cal.App.4th 1109, 1130.) Analysis of a
contract clause claim requires inquiry into: "(1) the nature and extent of any contractual
obligation ... and (2) the scope of the Legislature's power to modify any such obligation."
(Id. at p. 1131, quoting Valdes v. Cory (1983) 139 Cal.App.3d 773, 785.) The party asserting a
contract clause claim has the burden of "mak[ing] out a clear case, free from all reasonable
ambiguity," that a constitutional violation has occurred. (Floyd v. Blanding (1879) 54 Cal. 41,
43.)
Under California law, a "vested," right of employees to a pension or other benefits may
be implied from a county ordinance or resolution, such as a collective bargaining agreement or
pension plan, which has been adopted by the county's board of supervisors, when the language
or circumstances accompanying its passage clearly evince a legislative intent to create private
rights of a contractual nature enforceable against the county. In each case, whether an implied
term creates vested rights, in the absence of a legislative bar, is a matter of intent, as determined
under the traditional rules of statutory or contract interpretation. (Retired Employees Assn. of
Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1177 (County of Orange); see
also Thompson v. Board of Supervisors (1986) 180 Cal.App.3d 555, 562, fn. 5 [rules of statutory
construction apply to local ordinances].)
The Unions apparently do not contend that pension contributions and benefits are
categorically excluded from the scope of representation. Indeed, as the proposed decision
observes, there is considerable authority - both California and federal - holding that the
32

pension contributions and the future benefits of current employees are negotiable subjects.22
However, the fact that a subject is within the scope of representation does not mean that
negotiated terms affecting that subject are never subject to the protections of the contracts
clauses of the California or federal Constitutions. (County of Orange, supra, 52 Cal.4th 1171,
1177; Palos Verdes Library Dist., supra, 87 Cal.App.3d 135.) Thus, the Unions argue that,
once vested, by virtue of having been fixed either in a collective bargaining agreement or, as
here, in a pension plan adopted by the governing agency, pension benefits and employee
contributions towards future benefits may be neither unilaterally altered by the public
employer nor bargained away by the employees' collective bargaining representative, except
under very limited circumstances that are not present here.
However, as in other "vested rights" cases, a threshold question here is not whether
agency decisions or appellate opinions treat pension contributions and benefits as mandatory
· subjects for bargaining, but whether there exists "clear'' evidence of "a legislative intent to
create private rights of a contractual nature enforceable against the county." (County of Orange,
supra, 52 Cal.4th 1171, 1177.) 	Where the language of the governing statute (in this case, the
22 Allied Chem. & Alkali Workers ofAmerica, Local Union No. 1 v. Pittsburgh Plate
Glass Co. (1971) 404 U.S. 157 is the leading federal case. Following federal precedent, PERB
has likewise determined that pension, health and other fringe benefits are within the scope of
representation because they are each part of the total compensation package, even if their
payment is deferred until a future date. ( Coun,ty of Sacramento (2009) PERB Decision
No. 2045-M, pp. 2-3; County of Sacramento (2008) PERB Decision No. 1943-M, pp. 11-12;
Madera Unified School District (2007) PERB Decision No. 1907, p. 2; Temple City Unified
School District (1989) PERB Decision No. 782, pp. 11-13; Temple City Unified School District
(1990) PERB Decision No. 814, p. 10; Clovis Unified School District (2002) PERB Decision
No. 1504, pp. 17-18; Palo Verde Unified School District (1983) PERB Decision No. 321, p. 8,
fn. 3.) Taken together, the above cases recognize that wages, fringe benefits and pensions are
generally fungible components of an "overall compensation package," and that, upon request, a
public agency and the employees' representative must bargain not only over the total amount of
the package, but also over how it will be distributed among its constituent parts. (Madera, supra,
PERB Decision No. 1907, p. 2; City of San Jose (2013) PERB Decision No. 2341-M, pp. 31-32.)
33

pension plan) or the surrounding circumstances do not clearly and unmistakably indicate an
intent to confer rights of a contractual nature, including apromise not to change the specific
formulas or benefits of a pension plan, no such promise should be inferred. ( Claypool v. Wilson
(1992) 4 Cal.App.4th 646, 669-670.) Put simply, unless the Unions can show a clear legislative
intent to create vested rights and thereby remove employee compensation or otherwise
negotiable subjects from the scope of bargaining, those matters remain subject to negotiation.
(San Bernardino Public Employees Assn. v. City of Fontana (1998) 67 Cal.App.4th 1215,
1224-1225 (City of Fontana).)
For the reasons explained in the proposed decision and reiterated below, we agree with
the ALJ that the governing terms of the Plan do not clearly demonstrate a legislative intent to
bind the Cotmty with respect to the amounts or distribution of employee contributions towards
future retirement benefits.
Exceptions to the ALJ's Interuretation of the Governing Plan Provisions
The Unions except to the proposed decision's interpretation of two provisions of the
Plan, and particularly with the ALJ's detennination that, "the Plan does not set absolute caps
on the percentage of the employee's contribution rate." The Unions argue, to the contrary, that
the pertinent provisions of the Plan "only allow for increases [in employee contributions] based
upon an actuarial recommendation," and that "recognized employee organizations ... cannot
bargain to increase member rates in a manner not recommended by the actuary .... " We
disagree.
The provisions relied on by the Unions do confer an absolute right to "permanency" in
the particular benefits or contributions formulas. 	Section 5.01 of the Plan states, in pertinent
part, that "The schedules of rates of contributions utilized by the Pension Trust shall be those
34

adopted by the Board of Supervisors upon recommendation of the Board of Trustees. The Board
of Trustees shall base its said recommendation on the report of the actuary engaged by the Board
of Trustees." The other section relied on by the Unions, Section 16.04, states in pertinent part,
that "Upon the basis of the-[ actuarial] investigation, valuation, and recommendations of the
actuaries, the Board of Trustees shall recommend to the Board of Supervisors such changes in
the rates of interest, in the rates of contributions of Members, and in County and District
appropriations as are necessary."
The Unions interpret these provisions as permitting the Board of Supervisors to increase
employee contributions only after a recommendation by the actuary and, moreover, to preclude
collective bargaining over the amounts or relative shares of such contributions between the
County and its employees. Although the Plan language speaks of increases in employee
contributions based on recommendations of the actuary, it also seems to reserve ultimate
authority for making such changes to the County's Board of Supervisors. Although the County
has historically covered the costs of increased contributions, the Plan does not require it to do so.
We therefore agree with the ALJ that collective bargaining over the relative share of any
contributions would not annul, supersede or set aside the language of the Plan. The Unions have
not shown how employee rights to a particular rate of contributions or benefits have "vested."
(People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591,
599-601; City of Fontana, supra, 67 Cal.App.4th 1215, 1224-1225; Mount Diablo Education
Association (DeFrates) (1984) PERB Decision No. 422, pp. 5-6.)
Additionally, as suggested above, because we agree with the ALJ that the Plan does not
confer the rights which the Unions assert, we find it unnecessary to comment on whether any
35

of the California or federal court cases cited by the Unions shed any light on when, or under
what circumstances, vested rights may be modified through collective bargaining.
Exception to the Proposed Decision's Description of the Testimony of Petruzzi
The Unions also except to the ALJ's interpretation of Petruzzi's testimony regarding
the historical practice of the Pension Trust. They argue that the ALJ focused exclusively on
Petruzzi's testimony on direct examination, during which Petruzzi described the Board of
Trustees' responsibility as limited to recommending when contribution rate increases are
necessary, but remaining agnostic as to how such increases should be allocated between the
County and its employees. However, according to the Unions, Petruzzi effectively undermined
this interpretation when he admitted on cross-examination that, aside from the present dispute,
he was unaware of any previous increase in member contribution rates, unless recommended
by the Plan because of a change in actuarial assumptions, to correct an actuarial error that had
benefitted both the County and employees, or when the parties had agreed to share the costs of
a newly-added benefit. Since none of these circumstances is present in the current dispute, the
Unions argue that, contrary to Petruzzi's testimony on direct examination, the historical
practice of the Pension Trust supports the Union's interpretation of the Plan. We are not
persuaded.
When PERB is required to interpret contractual provisions, including the terms of a
pension plan, to decide an unfair practice case, it follows the traditional rules of contract
interpretation as codified in the Civil Code. (Civ. Code,§§ 1638-1645.) Foremost among
these is the requirement that we look first to the language of a written agreement, and that if its
tenns are clear and explicit, then it alone governs the interpretation and there is no need to
36

resort to bargaining history, past practice, or other extrinsic evidence. (Civ. Code, §§ 1638,
1639, 1644; City of Riverside (2009) PERB Decision No. 2027-M.)
Because we agree with the ALJ that the Plan language does not support the Unions'
contention that the County has delegated to the Pension Trust all authority to set employee
compensation, we find it unnecessary to address this exception. Even accepting the Unions'
account of the historical practice of the Pension Trust, that finding alone would not trump the
provisions of the Plan documents, which, in our view, do not clearly evince a legislative intent
to divest the County of its authority to set employee compensation, subject to its meet and
confer obligations under the MMBA. (County of Orange, supra, 52 Cal.4th 1171, 1184, 1187;
Chisom v. Board of Retirement of County of Fresno Employees' Retirement Assn. (2013)
218 Cal.App.4th 400, 413-414.)
Exception to the ALJ's Conclusion that the Unions Refused to Bargain Over Portions of the
County's Prevailing Wage Proposal
The Unions also except to the ALJ's conclusion that they refused to bargain over any
aspect of the County's prevailing wage proposal. They argue that, whatever their stated
reasons, the record demonstrates that they did in fact negotiate with regard to the methodology
and marketplace for the prevailing wage calculation and that they simply refused to agree with
every aspect ofthe County's proposal, as is their right under the MMBA and decisional law.
We find merit in this exception.
The County's Prevailing Wage Ordinance requires a percentage change in employee
compensation that is "at least equal to" the percentage paid to County employees for
performing the "the same quality of service rendered" by other employees in "similar
37

employment." According to the language of the ordinance, the universe of employees working
in "similar employment" is among those matters that "shall be determined by negotiations"
between the County and employee organizations. The Unions' initially proposed to include in
the prevailing wage formula the five counties proposed by the County plus two additional
counties. The ALJ found, and we agree, that the Unions repeatedly acknowledged their
willingness to negotiate a list of"comparable" employers, so long as it would result in
enhancements, but not reductions, to employee compensation under the "at least equal to"
language in the prevailing wage formula. Like the federal labor law on which it was modeled,
the MMBA does not compel either party to agree to a proposal or require the making of a
concession. (City of Placentia, supra, 57 Cal.App.3d 9, 22-23, citing 29 U.S.C. § 158(d); see
also Oakland Unified School District (1982) PERB Decision No. 275, pp. 14-15.) Because the
"right to remain firm" in negotiations is well established, we find no per se violation in the
Unions' insistence, even to the point of impasse, that they would only agree to a prevailing wage
formula that would result in wages "at least equal to" or greater than the existing level of
compensation.
In fact, despite their stated position, the record demonstrates that the Unions engaged in
significant "give and take" not only on the prevailing wage formula, but also on the resulting
level of employee compensation. Throughout the negotiations, the Unions agreed to the
essence of the County's proposal, which was that employees receive no wage increase during
the period subject to negotiation and they eventually proposed a 0.56 percent wage reduction
which, as they point out, was equal to or greater than the amount in costs savings the County
sought to recover through its proposal to change employee pension contributions.
38

Although the ALJ found that the Unions bargained over both the methodology and the
level of employee compensation, she nonetheless determined that they had refused outright to
bargain, because they insisted that, once set, the prevailing wage formula constituted a "vested
right" that could not be changed, and because, while they agreed to forego any wage increases,
they failed to respond to those portions of the County's proposals that looked to change the
prevailing wage methodology for future increases. The ALJ reasoned that, "Although the
Unions were willing to address part of the County's proposal, and always remained willing to
negotiate over percentage increases greater than what they would be entitled to under the
Ordinance, they 'steadfastly maintained' during bargaining that the County's proposal to
change the comparators or methodology would not result in an 'apples to apples' comparison
and so the required percentage change could not be calculated." (Proposed dee. at p. 34,
emphasis added.) According to the ALJ, "the Unions' bargaining obligation was not excused
because of their belief that a conflict with other statutory schemes might occur."
Additionally, "[t]heir willingness to discuss other aspects of the employer's proposal over the
prevailing wage issue does not preclude the finding of a per se violation," because the Unions
refused to respond to that portion of the proposal for a subcommittee to study the issue. In
our view, neither aspect of the Unions' conduct constitutes a per se violation.
We consider first the Unions' "vested rights" argument. Because they pertain to
employee compensation, we agree with ALJ that the County's prevailing wage proposals
involved negotiable subjects. (MMBA, §§ 3500, 3504, 3505; City of Fontana, supra,
· 67 Cal.App.4th 1215, 1224-1225; County of Santa Clara (2010) PERB Decision No. 2114-M;
Swift Adhesives, Div. of Reichhold Chemicals, Inc. (1995) 320 NLRB 215, 216.) We likewise
agree with the ALJ's implicit finding that, when the County repealed the pension benefit
39

enhancement and eliminated the corresponding 1.53 percent offset to the prevailing wage in
2006, the parties did not thereby intend to remove these issues from all future negotiations.
Such a "calcification of working conditions" is contrary to the principles of collective
bargaining and will only be entertained upon "clear and unmistakable" evidence that the public
agency intended to grant employees private rights of a contractual nature that survive and
effectively supersede future collective bargaining obligations. (City of Torrance, supra, PERB
Decision No. 1971-M, p. 27; City of Fresno v. People ex rel. Fresno Firefighters, IAFF
Local 753 (1999) 71 Cal.App.4th 82, 97; City of Fontana (1998) 67 Cal.App.4th 1215, 1224-
1225; cf. Palos Verdes Library Dist., supra, 87 Cal.App.3d 135, 150.)
But while we agree with the ALJ that the Unions' "vested rights" argument was thus
mistaken or misplaced with respect to the prevailing wage issue, we do not think this
argument, by itself, can determine the lawfulness of the Unions' conduct here, as it was not the
only argument offered by the Unions in support of their position. In addition to their "vested
rights" argument, the Unions also argued that one can only logically compare "apples to
apples" to determine whether "comparable" work in other locations warranted a change in the
wages of County employees, and that a change in the formula would disrupt the
methodological integrity of the comparison. And, while related to their "vested rights"
argument, the Unions negotiators also advised the County of their essentially pragmatic
concern of avoiding lawsuits brought by their own members for having bargained away
arguably vested rights. Because of its representative function, a union may reasonably wish to
avoid costly or politically damaging litigation with the employees it represents, even when it is
confident that it will ultimately prevail on the inerits. (International Brotherhood of Electrical
Workers v. Foust (1979) 442 U.S. 42, 52.)
40

While we reject the merits of the Unions' ''vested rights" argument, we recognize that the
issue was at least debatable and therefore the source of a legitimate concern of avoiding litigation.
The statute and the decisional law interpreting the duty to bargain do not require that every
argument made in support of one's position be meritorious or "accurate" in any empirically
verifiable sense. (City of Placentia, supra, 57 Cal.App.3d 9, 22-23, 25, citing Herman Sausage,
supra, 275 F.2d 229, 230-232.) Although the Unions gave some explanations for their position
that were "questionable," nothing in the record suggests that their belief in the logic and
expediency of maintaining the existing formula was not "sincere" or "fairly maintained."
(Ibid.) Thus, while the Unions argued, in our view mistakenly, that the prevailing wage formula
was not subject to negotiation, because this position was not stated in a pleading and was not
the only explanation offered, the Unions nonetheless explained their opposition to the County's
proposed changes in the prevailing wage formula "in sufficient detail to permit the negotiating
process to proceed on the basis of mutual understanding." (J_efferson School District (1980)
PERB Decision No. 133, p. 11; City of Glendale (2012) PERB Decision No. 2251-M, adopting
dismissal letter at p. 4.) A party who initially asserts that a negotiable matter is outside the
scope of representation but then engages in actual bargaining on the subject has not refused
outright to bargain; if the party persists in its position that a negotiable matter is non-negotiable,
then its conduct constitutes a per se violation of the duty to bargain. (San Mateo, supra, PERB
Decision No. 1030, p. 12; cf. Salinas Valley Memorial Healthcare System (2012) PERB
Decision No. 2298-M, pp. 18-19.)
We next consider the Unions' alleged refusal to bargain over apart of the County's
prevailing wage proposal. During the negotiations regarding the prevailing wage formula, the
Unions initially proposed the addition of two cities to the comparator pool. Although they
41

later abandoned this proposal and demanded the status quo, the exchange of proposals on the
prevailing wage issue does not demonstrate an outright refusal to bargain. It is true that the
Unions did not respond directly to that part of the County's proposal for a subcommittee to
study future changes to the prevailing wage formula. However, by the time the County
proposed the subcommittee, the Unions had already explained their adamant opposition to any
change in the existing formula. At that point, it was unnecessary for them to specifically reject
a proposed subcommittee whose stated purpose was to work toward the same result they had
already rejected, When a party has already explained the basis for its opposition, it need not
continue to do so· each time the same or similar terms are proposed. (Regents of the University
of California (2010) PERB Decision No. 2094-H, pp. 20-24; Charter Oak, supra, PERB
Decision No. 873.)
We are not persuaded by the ALJ's reliance on City of Torrance, supra, PERB Decision
No. 1971-M, pp. 24-27, and similar cases holding that a party's willingness to reach agreement
on other subjects will not shield it from liability when it has refused to discuss a negotiable
subject. While the proposition cited is a correct st,atement oflaw, we find it inapplicable here.
The Unions not only discussed, but agreed to, the primary aspect of the County's proposal,
while their previously-expressed concerns about comparing "apples to apples" and avoiding
litigation made it unnecessary for the Unions to respond to the remaining aspect of the
County's proposal.
We therefore reverse the proposed decision's conclusion that the Unions unlawfully
failed and refused to bargain with respect to the County's prevailing wage proposal.
42

The Unions' Request for Oral Argument ,
The Unions have also requested oral argument before the Board itself, a request that the
County opposes. The Board has historically denied requests for oral argument when the record
is adequate, the parties have had an opportunity to fully brief the matter, and the issues are
sufficiently clear to make oral argument unnecessary. (Los Angeles Community College
District (2009) PERB Decision No. 2059; Monterey County Office of Education (1991) PERB
Decision No. 913.) In addition to a voluminous record consisting of nearly 70 exhibits, the
parties presented testimony from several witnesses and had the opportunity to examine and
cross-examine each witness over the course of a three-day hearing. They also filed post-
hearing briefs with the ALJ in which they argued various points and authorities. Because the
record has been fully developed and the issues are sufficiently clear to make additional
argument unnecessary, we deny the Unions' request for oral argument.
ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this case and pursuant to the Meyers-Milias-Brown Act (MMBA), Govermnent Code
section 3509, the Public Employment Relations Board (PERB or Board) AFFIRMS the
conclusion of the proposed decision that the San Luis Obispo Govermnent Attorneys' Union
and the San Luis Obispo Deputy County Counsel Association (collectively, Unions) violated
sections 3505 and 3509, subdivision (b), of the Govermnent Code and committed an unfair
practice pursuant to PERB Regulation 32604, subdivision (c) (Cal. Code Regs., tit. 8, § 31001
et seq.), by failing and refusing to meet and confer in good faith with the County of San Luis
Obispo (County) regarding the County's proposal to increase employee pension contributions
43

and/or change the formula for distributing pension costs between the County and its
employees.
Based on the foregoing findings of fact and conclusions of law and the entire record in
this case and pursuant to the MMBA, Government Code section 3509, the Board REVERSES
the conclusion of the proposed decision that the Unions violated sections 3505 and 3509,
subdivision (b ), of the Government Code and committed an unfair practice pursuant to PERB
Regulation 32604, subdivision (c), by failing and refusing to meet and confer in good faith
with the County regarding the County's proposal to change the formula for calculating the
prevailing wage, pursuant to the County's Prevailing Wage Ordinance.
The Unions, their governing board and their representatives, shall:
A. 	CEASE AND DESIST FROM:
Failing and refusing to meet and confer in good faith with the County, upon
request, regarding proposed changes to employee pension contributions.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICES OF THE MMBA:
1. 	Meet and confer with the County upon proper request over the subjects
of the amount of employee pension contributions and/or how pension cost increases should be
allocated between the County and employees represented by Unions.
2. 	Within ten (10) work days of the service of a final decision in this
matter, post at all work location where the Unions customarily post notices to their members,
copies of the Notices attached hereto. The Notices must be signed by authorized agents of the
Unions indicating that the Unions will comply with the tenns of this Order. Such posting shall
44

be maintained for a period of thirty (30) consecutive work days. In addition to physical
posting of paper notices, the Notice shall be posted by electronic message, intranet, internet
site, and other electronic means customarily used by the Unions to c01mnunicate with County
employees represented by the Unions. Reasonable steps shall be taken to ensure that the
Notices are not reduced in size, altered, defaced or covered with any other material.
3. 	Written notification of the actions taken to comply with the Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The Unions
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on the County.
Members Huguenin and Winslow joined in this Decision.
45

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. LA-CO-123-M and LA-CO-124-M,
County of San Luis Obispo v. San Luis Obispo Government Attorneys ' Union and San Luis
Obispo Deputy County Counsel Association, in which all parties had the right to participate, it
has been found that the San Luis Obispo Government Attorneys' Union (SLOGAU) violated.
the Meyers-Milias-Brown Act (MMBA), Government Code sections 3505 and 3509,
subdivision (b), and committed an unfair practice pursuant to subdivision (c) of PERB
Regulation 32604 (Cal. Code Regs., tit. 8, sec. 31001 et seq.) by failing and refusing to meet
and confer over the County of San Luis Obispo' s (County) proposal regarding the amount of
employee pension contributions and/or how pension cost increases should be allocated
between the County and employees represented by SLOGAU.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Refusing to meet and confer with the County upon proper request over
matters within the scope of representation.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Meet and confer with the County upon proper request over the subjects of the
amount of employee pension contributions and/or how pension cost increases should be
allocated between the County and employees represented by SLOGAU.
Dated: 	SAN LUIS OBISPO GOVERNMENT
ATTORNEYS' UNION
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

APPENDIX
· NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. LA-CO-123-M and LA-CO-124-M,
County of San Luis Obispo v. San Luis Obispo Government Attorneys' Union and San Luis
Obispo Deputy County Counsel Association, in which all parties had the right to participate, it
has been found that the San Luis Obispo Deputy County Counsel Association (DCCA) violated
the Meyers-Milias-Brown Act (MMBA), Government Code sections 3505 and 3509,
subdivision (b ), and committed an unfair practice pursuant to subdivision (c) of PERB
Regulation 32604 (Cal. Code Regs., tit. 8, sec. 31001 et seq.) by failing and refusing to meet
and confer over the County of San Luis Obispo's (County) proposal regarding the amount of
employee pension contributions and/or how pension cost increases should be allocated
between the County and employees represented by DCCA.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Refusing to meet and confer with the County upon proper request over matters
within the scope of representation.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Meet and confer with the County upon proper request over the subjects of the
amount of employee pension contributions and/or how pension cost increases should be
allocated between the County and employees represented by DCCA.
Dated: --------- SAN LUIS OBISPO DEPUTY COUNTY
COUNSEL ASSOCIATION
By: Authorized Agent
--------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.