County of Santa Clara (PERB 2431M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA COUNTY CORRECTIONAL
PEACE OFFICERS ASSOCIATION,
Charging Party,
v.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-1150-M
PERB Decision No. 2431-M
June 10, 2015
Appearance: Mastagni, Holstedt by Jeffrey
R.
A. Edwards, Attorney, for Santa Clara County
Correctional Peace Officers Association.
Before Martinez, Chair; Huguenin and Banks Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Santa Clara County Correctional Peace Officers Association
(Association) from the Office
of
the General Counsel's dismissal
of
its unfair practice charge.
The charge, as amended, alleged that the County
of
Santa Clara (County) violated the Meyers-
Milias-Brown Act (MMBA) 1 and PERB regulations2 by unilaterally altering the status quo
terms and conditions
of
employment, as set forth in Section 20 (Tuition Reimbursement)
of
the
parties' expired 2011-2013 Memorandum
of
Understanding (MOU) and/or as established by
past practice, without bargaining to impasse or agreement.
1MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

The Office
of
the General Counsel dismissed the amended charge because it considered
its allegations to be inconsistent with the "clear and unambiguous" provisions
of
the parties'
expired collective bargaining agreement. As explained below, we reverse the dismissal and
remand for issuance
of
a complaint.
PROCEDURAL HISTORY
The Association filed its charge on December 10, 2013. The charge alleged that the
County had unilaterally changed or repudiated its policy and practice, as contained in Section 20
of
the expired MOU, regarding reimbursement
of
tuition costs incurred by bargaining unit
employees for attending training and development events.
On January 13, 2014, the County advised the Association
of
its intent to resolve this
charge by reimbursing Julio Alvarez (Alvarez) for classes he attended on August 26, 2013,
and October 16 through 18, 2013. After receiving no response from the Association, on
January 16, 2014, the County informed the Office
of
the General Counsel
of
its willingness to
reimburse Alvarez in return for withdrawal
of
the charge. The County's correspondence with
the Office
of
the General Counsel was not signed under oath.
On March 12, 2014, the Office
of
the General Counsel issued a warning letter advising
the Association that the charge, as written, failed to state a prima facie case that a unilateral
change had occurred. The warning letter included no discussion
of
PERB' s jurisdiction over this
dispute.
After being granted an extension
of
time, the Association filed an amended charge on
April 24, 2014. The amended charge alleged that the County unilaterally changed the status quo
terms and conditions of employment contained in Section 20 of the expired MOU and that it had
unilaterally changed "established practice" regarding tuition reimbursements, as contained in the
2

County's Employee Development Reimbursement Form. Aside from a request for attorneys'
fees at the appropriate lodestar rate, the Association has requested a standard Board-ordered
remedy in a unilateral change case, including a cease-and-desist order, posting
of
notice to
employees
of
the County's unlawful conduct, and a make whole order for all affected bargaining
unit employees, including but not limited to Alvarez, plus interest for any reimbursement
requests that were denied as a result
of
the alleged unilateral change(s).
On May 12, 2014, the County filed a position statement which included as exhibits copies
of
the reimbursement form, in which Alvarez requested reimbursement for the Outlaw
Motorcycle Gang Class Update and the 2013 San Mateo Gang Symposium. As discussed in
more detail below, the County's position statement was not signed under oath and it did not
include proof
of
service on the Association.
On May 21, 2014, the County provided the Office
of
the General Counsel with a
corrected position statement which included a declaration under penalty
of
perjury that its
contents were true, and a completed proof
of
service indicating that a sworn version
of
the
position statement had been mailed to the Association on May 12, 2014.
Also on May 21, 2014, the Office
of
the General Counsel dismissed the amended charge.
On June 10, 2014, the Association filed the present appeal.3 The Association
concurrently filed a request for PERB to take administrative notice
of
the reimbursement form,
which was attached to both the County's unsworn and sworn position statements.
The County filed no opposition to the appeal.
3 Although the Association's filing is captioned "Statement
of
Exceptions to Proposed
Decision," the filing complies with the requirements of PERB Regulation 32635 governing
appeals from dismissal without a hearing. We regard the filing as an appeal from dismissal.
3

FACTUAL ALLEGATIONS IN THE CHARGE
On review
of
a dismissal without hearing, we assume the truth
of
the charging party's
factual allegations. (San Juan Unified School District (1977) EERB4 Decision No. 12,
p. 5;
Golden Plains Unified School District (2002) PERB Decision No. 1489, p. 6.) Where the
charging party offers conflicting versions
of
the facts, the Board accepts that version most
favorable to the charging party's case and disregards others. (California School Employees
Association & its Chapter 244 (Gutierrez) (2004) PERB Decision No. 1606, pp. 3-4.) We may
also consider information provided by the respondent, when such information is submitted under
oath, complements without contradicting the facts alleged in the charge, and is not disputed by
the charging party. (PERB Reg. 32620, subd. (c); Service Employees International Union #790
(Adza) (2004) PERB Decision No. 1632-M; Lake Tahoe Unified School District (1993) PERB
Decision No. 994; Riverside Unified School District (1986) PERB Decision No. 562a.)
The Association represents the County's Correctional Employees Unit (CEU), which
includes the following job classifications: Correctional Officer, Sheriffs Correctional Deputy,
Correctional Sergeant, Sheriffs Correctional Sergeant, and Sheriffs Correctional Lieutenant. In
County
of
Santa Clara (2014) PERB Decision No. HO-U-1151-M, a separate case involving the
same parties and same bargaining unit, an administrative law judge (ALJ) determined that
Sheriffs Correctional Officers and Sheriffs Correctional Sergeants are "peace officers" within
4 Before January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
4

the meaning
of
Penal Code section 830.1,5 while the remaining titles are considered "custodial
officers" under a different provision
of
the Penal Code.6
The County's position statement does not challenge PERB jurisdiction in this matter
and neither the amended charge nor the Association's appeal mentions or discusses MMBA
section 3 511 or PERB jurisdiction to order a remedy affecting "persons" who are peace officers.
The Association and the County were parties to an MOU in effect from September 19,
2011 through September
1,
2013. Section 20
of
the expired MOU includes a tuition
reimbursement fund for unit employees, consisting
of
$15,000 per year; unused portions
of
the
fund "rollover into the next fiscal year," and "will accumulate for the term
of
the [MOU] and will
revert to the [C]ounty thereafter." Section 20 further provides that unit employees are eligible for
reimbursement if, among other things, the application for reimbursement was filed "prior to the
commencement
of
the course," and "[t]here are sufficient funds available in the program."
The amended charge also alleges that the County has "routinely" granted tuition
reimbursement requests to unit employees who have not submitted an application before
commencement
of
the course. Included with the County's corrected position statement is a copy
5 After no exceptions were filed, the ALJ' s decision in County
of
Santa Clara, supra,
· PERB Decision No. HO-U-1151-M became final on November 4, 2014. Pursuant to PERB
Regulation 32300, the decision is not a precedential decision
of
the Board itself, but its factual
findings and legal conclusions are binding on the parties. PERB may take administrative
notice of matters included in its own files, including materials from other cases. (Antelope
Valley Community College District (1979) PERB Decision No. 97; Palo Verde Unified School
District (1988) PERB Decision No. 689.)
6 The County's attempt to confer "peace officer" status on Correctional Officers, because
of a shortage
of
personnel in the County jails with full gun-bearing rights, has also been the
subject of extensive litigation in the courts. (See County
of
Santa Clara
v.
Deputy Sheriffs'
Association
of
Santa Clara County (1992) 3 Cal.4th 873; People ex rel. Deputy Sheriffs'
Association
of
Santa Clara County, Inc.
v.
County
of
Santa Clara (1996) 49 Cal.App.4th 1471.)
5

of
its reimbursement form, which requires the requesting employee to sign, under penalty
of
perjury, a statement acknowledging, among other things, that "this form and all required
documents ... must
be
received by Employee Development no later than two months after the
last day
of
the event" for which reimbursement has been requested. (Emphasis added.) The
form requires the requesting employee to authorize a payroll deduction to allow the County to
recoup payment from the employee
if
any one
of
several conditions is not met, including
if
the
employee fails to submit proof
of
successful completion
of
the course "within 2 months after the
end date
of
the event." The right-hand side
of
the form has an "Office Use Only" column which
includes several options to indicate why a request has been denied, including "Claim submitted
beyond 2 month deadline," "Claim submitted after fiscal year end," "Individual Maximum has
been reached," and "Fund has been exhausted." The form also provides a space marked "Other,"
followed by several blank lines to include a written explanation.
The amended charge further alleges that the MOU language has remained the same for
more than a decade before the present controversy arose and that the County has never
previously refused to reimburse unit employees' tuition expenses during the gaps between the
expiration
of
one MOU and ratification
of
its successor. By way
of
example, the Association
specifically alleges, beginning about May 2011, the parties had been "out
of
contract" for
approximately one year, during which time the County maintained the terms and conditions
of
employment, including reimbursement
of
unit employees' tuition for work-related events or
classes, until a successor agreement was reached.
The County maintains various local rules governing employer-employee and labor
relations. 	In language that is similar or identical to that found in the MMBA, Section A25-393
of
the local rules sets forth the County's duty to meet and confer in good faith with the
6

representatives
of
recognized employee organizations concerning wages, hours and other terms
and conditions
of
employment. 	Section A25-397 expressly acknowledges the County's
obligation to provide reasonable advance notice to recognized employee organizations
of
any
proposed ordinance, rule, regulation or proposal directly relating to matters within the scope
of
representation.
On August 19, 2013, County Labor Relations Representative Mitchell Buellesbach
(Buellesbach) met with Mark Salvo (Salvo), the chief spokesperson for the Association
bargaining team, to discuss extending the parties' MOU, which was set to expire in
approximately two weeks. Salvo explained that, in the Association's view, no extension was
necessary because the terms and conditions
of
employment contained in the MOU would remain
in effect until the parties agreed otherwise or exhausted impasse resolution procedures. Salvo
also advised Buellesbach that the Association had never previously entered into a contract
extension to cover the post-expiration period
of
negotiations. The meeting ended with
Buellesbach stating that he understood the Association's position, and that the parties could
revisit the issue at a later date,
if
necessary.
Alvarez is a Correctional Peace Officer employed by the County since 1989 and is the
Vice President
of
the Association. Since 2002, Alvarez has served as a training officer as part
of
his duties with the County. In that capacity, he has attended a variety
of
classes on gangs and
other criminal organizations active in the County correctional system. The Association alleges
that these classes assist Alvarez in identifying gang members and in recognizing and preventing
conflicts between gangs, knowledge which Alvarez then uses when training other correctional
officers. The Association alleges that Alvarez has attended, on average, 80 to 100 hours
of
such
classes per year during the eight years preceding the present charge, and that the County has
7

routinely reimbursed Alvarez and other officers in the CEU for tuition and other costs associated
with attending such classes.
On August 26, 2013, Alvarez attended the Outlaw Motorcycle Gang Intelligence Update,
an 8-hour class covering, inter alia, methods for identifying gang members. The class cost
$45.00, which Alvarez paid out-of-pocket.
On
October 11, 2013, Alvarez requested reimbursement with the County's Employee
Services Agency for the cost
of
attending the Outlaw Motorcycle Gang Intelligence Update.
When Alvarez submitted the form, a receptionist in the Employee Services Agency informed
him that, pursuant to a recent directive from the County's Labor Relations Office, the County
would not process his request or any other request by Association-represented employees for
tuition reimbursement until negotiations for a successor agreement had concluded. A copy
of
Alvarez's completed reimbursement form was included with the County's corrected position
statement. The "Office Use Only" section
of
the form indicates that it was reviewed by a County
employee on October 24, 2013. However, the copy
of
the form provided by the County does not
indicate why the request was denied or even that it was denied.
Upon learning that his request would be denied, on October 11, 2013, Alvarez advised
the Association by email message that his request for tuition reimbursement had been denied,
and that the receptionist had informed him that the County would not process requests for tuition
reimbursement until a new MOU took effect. The same day, Salvo forwarded Alvarez's
message to Buellesbach and requested that the latter clarify the County's position. Buellesbach
responded that because the Association had declined to extend the MOU, it had expired and,
consequently, "there is no authority for tuition reimbursements." Further communications
8

between Slave and Buellesbach followed on October 14 and 25, and November 8, 2013, without
resolution.
Notwithstanding his October 11, 2013 conversation with the County's receptionist, on
October 16-18, 2013 Alvarez attended the San Mateo Gang Symposium, a three-day conference
on identifying gangs in the San Francisco Bay area. Attendance at the symposium cost $250.00,
which Alvarez paid out
of
pocket. On October 22, 2013, Alvarez submitted a tuition
reimbursement application to the County's Employee Services agency, which, like his previous
request, was denied. According to the Association, both requests were denied with the
justification that because the contract was not extended, the County was not obligated to
continue the tuition reimbursement program contained in Section 20
of
the MOU
..
The Association alleges, inter alia, that the County unilaterally departed from the status quo ·
terms and conditions contained in Section 20
of
the expired MOU and established practice, as
memorialized in the County's reimbursement form.
THE WARNING AND DISMISSAL LETTERS
Mootness
In a footnote, the dismissal letter concluded that the Association's unilateral change
allegation was not moot, notwithstanding the County's assertion that it has fully reimbursed
Alvarez for the two events identified in the charge and supporting materials. The dismissal letter
offers two reasons in support
of
this conclusion. First, the Office
of
the General Counsel
declined to consider any factual allegations included in the County's "position statement,"
because it was not signed under oath and because it included no proof
of
service. Although the
County did submit an "amended" position statement which attempted to correct these two
9

deficiencies, the Office
of
the General Counsel did not consider the amended position statement
because it was filed on May 21, 2014, the same day the charge was dismissed.
In the alternative, the Office
of
the General Counsel determined that, even
if
the County
had fully reimbursed Alvarez, the issues raised by the Association's charge are not moot. Citing
County
of
Sacramento (2008) PERB Decision No. 1943-M, the Office
of
the General Counsel
noted that reversal or rescission
of
a unilateral change does not excuse or cure the alleged
violation or otherwise render it moot where the respondent maintains that it has the right to
repeat the complained-of conduct.
Failure to State a Prima Facie Case
Based on the material included the Association's charge, the Office
of
the General
Counsel understood one allegation to be that the County had violated the status quo terms and
conditions contained in Section 20
of
the expired MOU, which, by its terms, requires
reimbursement
of
tuition costs to bargaining unit employees
if
certain criteria are met.
According to the dismissal letter, the Office
of
the General Counsel understood the amended
charge to include an,additional allegation that the County had violated an established practice
not contained within the express terms
of
the expired MOU. Specifically, the dismissal letter
explained that, notwithstanding the language
of
Section 20 requiring reimbursement requests to
be submitted in advance
of
the event at which expenses are incurred, the Association alleged in
the amended charge that its members have routinely been reimbursed for tuition expenses, so
long as their requests were made within two months after the last day
of
the event, as
memorialized in the County's reimbursement form.
The Office of the General Counsel cited PERB and National Labor Relations Board
precedent holding that, "[a]s a general rule," an employer must maintain the status quo terms

and conditions following the expiration
of
an agreement, even when the terms purport to apply
only for the "duration"
of
the agreement. In particular, the Office
of
the General Counsel
noted that the "duration" language found in many agreements is "too general and vague" to
waive the union's right to bargain over mandatory subjects and that, in the absence
of
more
explicit language, the employer must refrain from unilateral action following expiration
of
an
agreement until negotiations have resulted in impasse or agreement.
However, the Office
of
the General Counsel also noted that, "where the agreement
expressly provides that a contractual obligation will terminate upon expiration, the NLRB will
find a waiver." In the present circumstances, the Office
of
the General Counsel recited
language from Section 20
of
the expired MOU, which states that the County will maintain the
tuition reimbursement program "for the term
of'
the MOU. According to the Office
of
the
General Counsel, while this language by itself would not constitute a waiver, Section 20
includes additional language stating that "unused portions
of
the [reimbursement] fund will
accumulate for the term
of
[the MOU] and will revert to the [C]ounty thereafter." (Emphasis
added.) The Office
of
the General Counsel also noted that Section 20 makes payment
of
a
reimbursement request contingent upon the availability
of
funds. 	According to the Office
of
the General Counsel, these provisions, taken together, were sufficient to constitute a waiver,
such that the County was authorized to disregard the tuition reimbursement program once the
parties let the MOU expire.
Additionally, the Office
of
the General Counsel noted that each
of
the instances in
which Alvarez submitted requests for reimbursement, as alleged in the charge, occurred after
the expenses had already been incurred, while the language of Section 20 requires that requests
be submitted in advance. The Office of the General Counsel reasoned that, even
if
the terms
11

and conditions
of
the expired MOU remained in effect, they would not assist Alvarez in the
present circumstances, because, under Section 20, he had no right to reimbursement after the
fact. Moreover, the Office
of
the General Counsel noted that Alvarez had submitted each
of
the reimbursement requests at issue after the MOU had expired at which point, according to the
Office
of
the General Counsel's interpretation
of
Section 20, any unused tuition reimbursement
funds were to revert to the County. In either event, Alvarez had no right under Section 20 or
its expired terms to reimbursement
of
the expenses incurred and thus, the allegation that the
County had unilaterally altered the status quo, as contained in the expired MOU, must be
dismissed.
The Office
of
the General Counsel also rejected the Association's separate allegation
that the County had unilaterally departed from an established practice by noting that a past
practice is only relevant to a unilateral change allegation
if
the parties' written agreement is
silent or ambiguous on the subject. According to the Office
of
the General Counsel, where a
written agreement is "clear and unambiguous," its terms govern (County
of
Riverside (2013)
PERB Decision No. 2307-M), regardless
of
whether the parties have previously sought to
enforce their contractual rights. (Marysville Joint Unified School District (1983) PERB
Decision No. 314 (Marysville).) According to the Office
of
the General Counsel, the past
practices alleged by the Association are "directly contrary to the clear and unambiguous
language
of
the [expired] MOU," including its requirement that reimbursement requests be
submitted before incurring educational expenses and its condition that expenses are
reimbursable, only
if
funds are available. Because the County "was not prohibited from
enforcing its contractual right to deny reimbursement requests that were not submitted in
12

accordance with the clear and unambiguous terms
of
the MOU," the Office
of
the General
Counsel concluded that the charge also failed to state a prima facie case that the County had
unilaterally altered an established practice.
THE APPEAL
On appeal, the Association argues that the Office
of
the General Counsel
misunderstood the reversion provision
of
the MOU which, according to the Association, "only
applies to funds that rolled over from a prior fiscal year," but "not [to] the annual deposit into
the account" used to reimburse such requests. Thus, the reversion provision "operates
essentially as a cap on the rolled over funds to prevent the fund from growing indefinitely," but
"does not extinguish the fund when [the] MOU expires."
The appeal also argues that the County unilaterally altered two separate procedures -
one contractual and one established by County policy and practice - which, according to the
Association, govern two different kinds
of
reimbursement requests. According to the
Association, the fact that the reimbursement procedure set forth in the County's reimbursement
form differs from the procedure set forth in the MOU does not mean that the former is eclipsed
by the latter. Rather, the two procedures were intended to cover different kinds
of
reimbursement requests and the Office
of
the General Counsel therefore erred in determining
that one procedure was not an established practice, simply because it varied from the other
procedure set forth in the MOU.
13

DISCUSSION7
A. 	Jurisdiction
The present charge was filed by an employee organization representing a unit
comprised at least in part
of
"peace officers" within the meaning
of
Penal Code section 830.1.
MMBA section 3
511 8 expressly excludes persons who are "peace officers" from PERB' s
jurisdiction. To avoid acting in excess
of
its authority, PERB has an obligation to determine
whether it has jurisdiction to consider a matter, regardless
of
whether the parties themselves
have raised the issue. (Los Angeles Community College District (1994) PERB Decision
No. 1060, p. 8; City
of
Redondo Beach (2014) PERB Order No. Ad-409-M, p. 3; Association
for Retarded Citizens
v.
Department
of
Developmental Services (1985) 38 Cal.3d 384,
391-392.)
PERB has previously asserted jurisdiction in unfair practice cases involving similarly-
situated parties, i.e., charges brought by employee organizations representing a unit comprised
at least in part
of
peace officers. (County
of
Calaveras (2012) PERB Decision No. 2252-M;
County
of
Yolo (2013) PERB Decision No. 2316-M.) In both Calaveras and Yolo, the
underlying disputes involved whether the employer had violated its local rules and/or the
MMBA when processing petitions to sever or modify bargaining units including peace officers
7 We find it unnecessary to address the Office of the General Counsel's determination
that this dispute is not moot, as that issue was not raised by the Association's appeal and the
County has filed no opposition to the appeal.
8 MMBA section 3511 provides: "The changes made to Sections 3501, 3507.1, and
3509 of the Government Code by legislation enacted during the 1999-2000 Regular Session of
the Legislature shall not apply to persons who are peace officers as defined in Section 830.1 of
the Penal Code."
14

and/or to decertify or recognize employee organizations seeking to represent a unit including
peace officers. 9
Since the MMBA came under PERB'sjurisdiction in 2001, PERB has never questioned
its authority to entertain an unfair practice charge brought by the exclusive representative
of
a
"mixed" bargaining unit
of
peace officers and non-peace officers. (County
of
Calaveras; County
of
Yolo.) MMBA section 3511 precludes jurisdiction only with respect to charges brought by
peace officers, not employee organizations. As important, mixed bargaining units include public .
employees who are not peace officers. No plausible interpretation
of
the MMBA would support
the conclusion that the exclusive representative
of
such employees would be precluded from
bringing an unfair practice charge on their own or their bargaining unit's behalf. Because,
however, no Board decision has ever addressed this issue, we take this opportunity
to
address it
here. By issuance
of
this decision, we make explicit PERB' s authority to hear charges, such as
the present one, that are brought by employee organizations, including employee organizations
representing or seeking to represent units including persons who are peace officers.
9 County
of
Santa Clara (2013) PERB Decision No. 2321-M also involved a dispute
over Correction Officers by the same parties as the present case. In County
of
Santa Clara, the
Association appealed from partial dismissal
of
an unfair practice charge alleging that the
County had unilaterally changed evaluation procedures, hours, and staffing levels affecting
Correction Officers who, pursuant to a legislative amendment, were eligible to become
Correction Deputies, a position considered a "peace officer" within the meaning
of
the Penal
Code, effective January 2011. (Id. at pp. 5-6.) However, in that case, the new peace officer
classification was not established until March 2011. Because the charge was brought by an
employee organization, and because it was undisputed that the employees in question were not
"peace officers" when the unfair practices allegedly occurred, there was no issue of the
Board's jurisdiction in that dispute. (Los Angeles Community College District (1994) PERB
Decision No. 1060, pp. 3, 8.)
15

Although MMBA section 3511 excludes PERB from hearing charges filed by "persons"
who are peace officers, it does not prohibit the agency from hearing charges brought by
employee organizations. The fact that an employee organization represents or seeks to
represent some peace officers does not alter the analysis or result. This interpretation is
supported by the language
of
the statute and by the familiar canons
of
construction, including
the maxim that statutory terms are not interpreted in isolation, but rather are to be read with
reference to the entire scheme
of
law
of
which they are a part so that the whole may be
harmonized and retain effectiveness. (Pineda
v.
Williams-Sonoma Stores, Inc. (2011)
51
Cal.4th 524, 530; see also Los Angeles Superior Court (2010) PERB Decision No. 2112-1,
adopting dismissal letter at p. 2 [citing similar maxims for contract interpretation].)
Of
particular significance is the distinction appearing elsewhere in the statute between "person"
and "entity," which indicates that the term "person" refers only to a natural person and not to
corporate or associational personhood, such as an employee organization. (See MMBA,
§ 3509.5, subd. (c).)
If
the Legislature had intended to prohibit PERB from investigating and
remedying an unfair practice charge brought by an employee organization, it would have stated
that PERB has no authority over "persons who are peace officers" nor over entities who
represent or seek to represent peace officers. We believe the policies and purposes
of
the
MMBA would not be served by expanding limitations on PERB' s authority beyond those
which the statutory language expressly requires. (City
of
Redondo Beach, supra, PERB Order
No. Ad-409-M, pp. 3-5.)
Moreover, the fact that the Legislature has since chosen not to limit PERB's
jurisdiction over MMBA factfinding requests, a right that may only be asserted by employee
organizations and not by "persons" who are peace officers (City
of
Redondo Beach), lends
16

further support to our conclusion that the Legislature did. not intend for MMBA section 3511 to
strip PERB
of
all jurisdiction simply because some persons who are peace officers may benefit
from a Board-ordered remedy in a case brought by an employee organization.
B. 	The Association's Request for Administrative Notice
The Association has requested administrative notice
of
the County's reimbursement form
which, according to the Association, provides probative information regarding the parties'
practice for reimbursing employees in that it acknowledges that employees may be reimbursed
for attending training and development events for up to two months after the event. Although
copies
of
the form were included as exhibits to the County's position statement, because the
County's position statement was not signed under penalty
of
perjury and did not include proof
of
service, as required by PERB regulations, the Office
of
the General Counsel determined that it
could not consider the factual allegations included in the position statement or its attachments.
The Office
of
the General Counsel also determined that this infom1ation, even
if
considered,
·would not alter its conclusion that the Association had failed to state a prima facie case because
the language in the form varies from the language in the expired MOU and therefore could not
serve as an "established practice" to support a unilateral change allegation.
We find it unnecessary to rule on the Association's request for administrative notice
and/or to determine whether "good cause" exists to consider evidence submitted for the first time
on appeal. 10
We agree with the Office
of
the General Counsel's refusal to consider factual
10
PERB Regulation 32635, subdivision (b), and decisional law preclude Board
consideration of new evidence or new charge allegations presented for the first time on appeal
unless the proponent establishes "good cause." (Service Employees International Union,
Local 1021 (Estival) (2009) PERB Decision No. 1998-M, p. 2; California School Employees
Association & its Chapter 198 (Bruce) (2006) PERB Decision No. 1858, p. 2.)
17

allegations in an unsworn position statement submitted by the County without proof
of
service.
(PERB Regs. 32140, subd. (a), 32620, subd. (c).) While defective service may be excused
if
all
parties to the case have had actual notice
of
the issues and would not be unfairly surprised or
unduly prejudiced (Fontana Unified School District (2003) PERB Order No. Ad-324,
p.
7;
Santa Monica-Malibu Unified School District (1987) PERB Order No. Ad-163,
p.
2), PERB has
never adopted a similarly lenient standard for excusing unsworn position statements. (National
Education Association-Jurupa (Norman)(2014) PERB Decision No. 2371, p. 7.) However,
because the County's corrected position statement, which was signed under penalty
of
perjury
and which included proof
of
service, was filed the same day as the dismissal, we conclude that
the County's position statement and its attachments are within the scope
of
the Board's review.
C.
	Dismissal for Failure to State a Prima Facie Case
The appeal presents allegations that the County imposed unilateral changes in terms and
conditions
of
employment constituting "per se" refusals to meet and confer in good faith. To
prove a unilateral change, the charging party must establish that: (1) the employer took action
to change policy; (2) the change in policy concerns a matter within the scope
of
representation;
(3) the action was taken without giving the exclusive representative notice or opportunity to
bargain over the change; and (4) the action had a generalized effect or continuing impact on
terms and conditions
of
employment. (County
of
Santa Clara, supra, PERB Decision
No. 2321-M, p. 13.)
Here, the Association has alleged that, upon expiration
of
the parties' MOU on
September 1, 2013, the County ceased reimbursing bargaining unit employees for tuition
without notice or opportunity f9r bargaining. Because employer policies concerning
reimbursement for job-related tuition or training expenses affect the statutorily-enumerated
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subject
of
wages, such policies are negotiable. (MMBA, § 3504; Healdsburg Union High
School District and Healdsburg Union School District/San Mateo City School District (1984)
PERB Decision No. 375, pp. 29-30.) The present dispute therefore involves matters within the
scope
of
representation.
Additionally, the County's refusal to reimburse Alvarez occurred while the parties were
negotiating for a successor MOU and before exhaustion
of
any impasse resolution procedures.
The Association has sufficiently alleged that the alleged change in policy occurred without
notice and/or opportunity for bargaining. (County
of
Santa Clara, supra, PERB Decision
No. 2321-M, p. 18; San Mateo County Community College District (1979) PERB Decision
No. 94, p. 12, citing NLRB
v.
Katz (1962) 369 U.S. 736.)
Likewise, according to materials included with the amended charge, the County has
asserted that it is legally authorized to refuse to reimburse employees because, according to the
County's Labor Relations Representative, without an extension
of
the MOU "there is no
authority for tuition reimbursements." Under PERB precedent, even
if
an employer's action·
affects only one employee, it nonetheless has a generalized effect or continuing impact on the
unit members' terms and conditions
of
employment
if
based on the employer's assertion
of
a
contractual or other legal right to act unilaterally. (County
of
Riverside (2003) PERB Decision
No. 1577-M, p. 6; Hacienda La Puente Unified School District (1997) PERB Decision
No. 1186, p.4.)
Thus, the sole issue is whether the County's refusal to reimburse Alvarez constituted a
change in policy, including an established practice. Although the Office
of
the General
Counsel determined that no change to an established practice occurred because there could be
no "established" practice contrary to the clear and unambiguous terms of the parties' MOU, we
19

conclude that the charge sufficiently alleges the existence
of
an established practice regarding
employee reimbursements and that a change in that practice occurred when the County refused
to reimburse Alvarez's requests.
In our view, the Office
of
the General Counsel misconstrued the language
of
Section 20(a) in finding that Section 20 (Tuition Reimbursement) had expired. Subdivision (a),
"Fund," establishes a tuition reimbursement fund into which $15,000 is placed per year for the
bargaining unit. Unused funds from one year will roll over into the next year and unused
portions
of
the tuition reimbursement fund will revert to the County at the end
of
the contract
term. The Office
of
the General Counsel focused on the reversion term, not on the $15,000 per
year term. The MOU does not contemplate that the bargaining unit would not have available to
it for tuition reimbursement $15,000 per year. The only legitimate funding basis on which a
request for reimbursement could be been denied would be
if
the $15,000 had already been
expended. But that was not the basis for the County's decision here. Alvarez's request was
denied because the MOU had expired. Because the terms
of
the expired contract continue until
agreement or impasse is reached, the request for reimbursement should have been processed in
the same manner as
if
the contract were still in effect. (Pajaro Valley Unified School District
(1978) PERB Decision No. 51, pp. 5-7, citing NLRB
v.
Katz, supra, 369 U.S. 736.)
We disagree with the Office
of
the General Counsel's determination that the Association
waived its right to have Section 20 survive upon expiration
of
the contract when it agreed to the
reversion language for two reasons. An affirmative defense not raised by the respondent at the
charge processing stage cannot provide the basis for dismissal, even
if
the pertinent facts are
undisputed. (Metropolitan Water District
of
Southern California (2009) PERB Decision
No. 2055-M, p. 4, fn. 4; Long Beach Community College District (2003) PERB Decision
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No. 1568, p. 15.) While
PERB's
regulations require a Board agent investigating a charge to
"[a]ssist the charging party to state in proper form the information required" (PERB
Reg. 32620, subd. (b)(1 )), they include no similar requirement that affirmative defenses not
raised by the respondent be considered. Because the County failed to raise the defense
of
consent or waiver by agreement while the charge was before the Office
of
the General Counsel,
it cannot serve as the basis for dismissal.
Additionally, we do not interpret the reversion language
of
Section 20 to mean that no
funds were available for tuition reimbursement at the end
of
the contract term. As stated above,
under the terms
of
subdivision (a), there is $15,000 available in the tuition reimbursement fund
each year. In sum, unused monies may revert to the County at the end
of
the contract term, but
that does not mean that no monies exist in the fund on a year to year basis from which to pay
bargaining unit members. The MOU contemplates that every fiscal year there will be $15,000 to
draw from;
Having determined that Section 20 did not expire, the next question is whether the MOU
is clear and unambiguous on whether a request for reimbursement must be made before course
commencement, such that the MOU trumps the separate past practice alleged by the Association.
In our view, the MOU is not clear and unambiguous on this issue. Although a Board agent must
accept the plain language
of
a contract or local rule where it is clear and unambiguous ( Glendora
Unified School District (1991) PERB Decision No. 876; Butte Community College District
(1985) PERB Decision No. 555; see also Marysville, supra, PERB Decision No. 314, p. 9),
where, as here, "there is a legitimate dispute over the meaning
of
[a] contract, the parties must be
afforded the opportunity to offer evidence in support
of
their respective contentions" before the
21

matter is dismissed. (Saddleback Community College District (1984) PERB Decision No. 433,
pp. 4, 2-3; Fullerton Joint Union School District (2004) PERB Decision No. 1633, pp. 5-6.)
Section 20 covering "Tuition Reimbursement" is divided into five sections.
Subdivision (a) concerning "Fund" is discussed above. Subdivision (b) concerns "Eligibility."
Subdivision (b )(3) states as one
of
the eligibility criteria the following: "The application was
filed with the appointing authority or his/her designee prior to the commencement
of
the
course." "[A]pplication" is not defined. Given that this is a section
on
eligibility, not tuition
reimbursement, one possible interpretation is that the term refers to a process for obtaining pre-
approval from the appointing authority for attending the course.
11
Subdivision (d) concerns "Reimbursement." It requires only the following:
"employees shall receive full immediate reimbursement for tuition and other required costs
(including textbooks) upon presentation
of
a receipt showing such payment has been made."
12
Subdivision (c) concerning "Disapproval" is the only section that refers to
"an
application for tuition reimbursement."
One possible interpretation
of
Section 20 is that the word "application" in
subdivision (b) on eligibility refers to an application for tuition reimbursement. The Office
of
the General Counsel interpreted Section 20 in this way. Having concluded there was a conflict
11 This interpretation is supported by reference to the County's reimbursement form,
which states:
"If
this course is being taken during your regular work hours, your manager must
have prior knowledge and sign at least 10 days in advance
of
the event."
12 Subdivision (e) concerns "Deduction Authorization," which topically follows
logically from Subdivision (d) on "Reimbursement." An employee who has received
reimbursement may be required to return the reimbursed tuition in whole or in part by way
of
a
payroll deduction under set circumstances, i.e., unsuccessful participation in course, leaving
County employment.
22

between the "clear and unambiguous" MOU provision and the past practice regarding the issue
of
pre-approval
of
a tuition reimbursement request, the Office
of
the General Counsel
concluded that the MOU trumps the past practice under Marysville, supra, PERB Decision
No. 2321-M.
However, whether the MOU requires that the tuition reimbursement request be
submitted before course attendance is
at
least ambiguous, given that subdivision (d), which
contains the tuition reimbursement requirements, contains no such requirement. This
ambiguity means two things. First, Marysville cannot be applied here because the contract
provision is not clear and unambiguous. Second,
it
is possible to construe the past practice as
resolving any ambiguity about whether pre-approval
of
a tuition reimbursement request is
required under the County's policy. This interpretation is supported by language on the form,
whereby the employee making the request acknowledges that the form and supporting
documents must be received by Employee Development no later than two months after the last
day
of
the event for which reimbursement is being requested.
We conclude that the Association has adequately alleged a past practice that the County
accepted tuition reimbursement requests submitted within two months
of
completion
of
the
course and that, upon expiration
of
MOU, the County failed to maintain the status quo terms and
conditions
of
employment, including the past practice described above.
We reverse the dismissal and remand this matter for issuance
of
complaint.
ORDER
It is hereby ORDERED that the dismissal
of
the unfair practice charge, as amended, in
Case No. SF-CE-1150-M is REVERSED and the matter REMANDED to the Office of the
General Counsel for issuance of a complaint that the County of Santa Clara unilaterally altered
23

an established practice and/or the terms set forth
in
the parties' expired Memorandum
of
Understanding by refusing to reimburse bargaining
unit
employees for tuition or related expenses
incurred in work-related educational or training events.
Chair Martinez and Member Huguenin joined in this Decision.
24