County of Riverside (PERB 2573M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOY MENT RELATIONS BOARD

SERVICE EMPLOY EES INTERNATIONAL
UNION LOCAL 721,
Charging Party, Case No. LA-CE-702-M
v. PERB Decision No. 2573-M
COUNTY OF RIVERSIDE, June 25, 2018
Respondent.

Appearances: Weinberg, Roger & Rosenfeld, by Alan Crowley, Attomey, for Service
Employees Intemational Union, Local 721; The Zappia Law Finn, by Edward P. Zappia and
Brett M. Ehman, Attomeys, for County of Riverside.
Before Banks, Winslow and Krantz, Members.
DECISION

WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by both parties to a proposed decision (attached) by an
administrative law judge (ALJ). The County of Riverside (County) excepts to the AL]’s
conclusions that the County violated the Meyers- Milias- Brown Act (MMBA)! by: (1)
unilaterally changing a past practice of paying shift differentials for time employees were
released from their regular duties for collective bargaining and other union activities; and (2)
failing to provide released time for collective bargaining without loss of compensation, as
required by section 3505.3. Service Employees Intemational Union, Local 721 (SEIU or Local
721) excepts to the ALJ’s refusal to consider an allegation that the County denied special

assignment pay to Sharon Schilb (Schilb), an employee represented by SEIU.

"The MMBA is codified at Govemment Code section 3500 et seg. Unless otherwise
specified, all statutory references are to the Government Code.

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The Board itself has reviewed the administrative hearing record in its entirety and
considered the parties’ exceptions, cross-exceptions, and responses thereto. Based on this
review, we conclude that, except where noted below, the ALJ’s factual findings are adequately
supported by the evidentiary record and her conclusions of law are well reasoned and in
accordance with applicable law. We therefore adopt the proposed decision as the decision of
the Board itself as modified and supplemented by the discussion below.2
PROCEDURAL HISTORY
SEIU’s unfair practice charge was originally dismissed by the Office of the General
Counsel for failure to state a prima facie case. On appeal by SEIU, the Board reversed and
remanded for issuance of a complaint. (County of Riverside (2013) PERB Decision
No. 2307-M.)
The County filed a timely answer to the complaint denying the substantive allegations
and asserting multiple affirmative defenses. An informal settlement conference was held, but
the matter was not resolved.
On December 16, 2013, the ALJ conducted a formal hearing. During the hearing, the
ALJ granted SEIU’s unopposed motion to amend the complaint to withdraw and add certain
allegations. The parties also stipulated to the admission of a number of joint exhibits. This
included the entire evidentiary record (transcripts and exhibits) from a two-day advisory
arbitration hearing before Arbitrator Walter F. Daugherty. The parties agreed to treat the
testimony from that hearing as if it were produced in the PERB hearing. The County also
2 Along with its exceptions, the County requested oral argument. The Board typically
denies such requests when an adequate record has been prepared, the parties had ample opportunity
to present briefs and have availed themselves of that opportunity, and the issues before the Board
are sufficiently clear as to make oral argument unnecessary. (Antelope Valley Health Care District
(2006) PERB Decision No. 1816-M; Arvin Union School District (1983) PERB Decision No. 300.)
Because these criteria are met here, we deny the request for oral argument.
2

introduced 28 exhibits of its own, without objection from SEIU. Finally, the parties stipulated
that if Wendy Thomas (Thomas), an SEIU representative and County employee, were called to
testify, she would have said that she was Local 721’s lead negotiator in 2011, and that
Local 721 member Schilb told her that Schilb could no longer participate on Local 721’s
bargaining team because she did not receive certain premium pay while in bargaining. The
County did not waive any hearsay, relevance, or other objections to this stipulation.
Following the hearing, each party submitted an opening brief and a reply brief. After
the ALJ issued the proposed decision, the County filed a timely statement of exceptions, to
which SEIU filed a timely response and statement of cross-exceptions.
SUMMARY OF FACTS
The following summary incorporates the ALJ’s factual findings, as modified based on
our review of the County’s exceptions to those findings.
SEIU and the County have historically negotiated a single memorandum of
understanding (MOU) that applies to all SEIU-represented bargaining units. The 2010-2011
MOU, which was in effect at the time of the events alleged in this case, contained a grievance
procedure culminating in advisory arbitration. It also included the following provisions
relevant to this case.
Article 4, Section 3 of the MOU covers various forms of “premium pay,” which entitles
eligible employees to extra salary based on special assignments or duty. One type of premium
pay described in this section is shift differentials. There is a $.60 evening shift differential and
a $1.20 night shift differential for time “actually worked” during the specified hours.
Under MOU Article 4, Section 3, subdivision (C), “[s]hift differentials do not apply to
vacation, sick leave, holiday pay, call or standby duty.” Furthermore, “[e]mployees who work
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[sic] day shift between the hours of 7:00 a.m. and 6:00 p.m. shall not be entitled to a shift
differential.” The cited provisions are substantially similar to both prior and subsequent
versions of that MOU.
The other type of premium pay at issue in this case is set out in Article 4, Section 3,
subdivision (E), of the MOU. That provision describes “Special Assignments” differentials for
nursing personnel certified for and assigned to certain specialties, such as the Emergency
Room, Operating Room, Neonatal Intensive Care Nursery, or Psychiatry. Under Article 4,
Section 3, subdivision (E)(2), employees who possess the required qualifications for the
assignment and are “working in the designated units” are eligible for the differential.
Article 31 of the MOU also describes various “Union Rights.” Relevant to this case are
the released time provisions of Article 31, Section 6. Under this section, Local 721 has what
the parties refer to as a “Release Time bank” of time, providing Local 721 with 20 minutes of
released time per represented employee per calendar year. Because of the size of Local 721’s
membership, it had around 2,000 hours in the released time bank annually. According to the
MOU, “[t]ime spent training Stewards in the grievance procedure through the providing of
release time to prepare for grievances/administrative interviews and Skelly hearings, will be
charged to this Article/Section.”
The MOU allows Local 721 representatives to take one shift of County-paid released
time per month for monthly regional union meetings. There are also provisions for Local 721
executive board members to attend their monthly meetings and for Local 721’s president to
take full-time leave of absence to perform union functions. Costs for those last two types of
time are paid by the County, but reimbursed by Local 721. All subsequent versions of the
MOU contain substantially similar provisions. None of the versions of the MOU admitted into
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the record specify how released time for negotiations is handled. Nor does any iteration of the
MOU expressly discuss whether employees using released time qualify for shift differentials or
other premium pay.
The County’s Practice Regarding Claiming Shift Differentials
The MOU does not specify how shift differentials are reported to the County. In
practice, eligible employees claim shift differentials on their regular timesheets during each
two-week payroll period. Until 2010, employees recorded hours worked using the “REG”
payroll code and then specified how much of that time qualified for a differential by using
payroll code “Z.”
Employee timesheets are reviewed by the employee’s direct supervisor for accuracy.
Timesheets are then separately reviewed by department management and then again by the
payroll office, which is part of the County’s Human Resources (HR) department. The record
showed that HR commonly issued payroll corrections because of errors on timesheets or
elsewhere in the process. However, the record also showed that the payroll office had limited
capacity to review all timesheets in the short time available to complete payroll processing
each pay period.
The County’s Practice Regarding Requesting Released Time
Union representatives request released time directly from HR. If a request is granted at
that level, HR e-mails the union representative’s supervisor for department-level approval.
The supervisor then checks to make sure there is no operational need warranting denial.
Thomas’s June 2009 released time request illustrates how the system operates. She made the
request to HR, which approved it and sent an e-mail to Thomas’s supervisor, Sheriff’s
Department Captain Larry Grotefend (Grotefend), stating:
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The above named employee[s] have been approved release time
to attend an SEIU Bargaining Task Force Session, [and] if
necessary, allow up to one hour of travel time to and from your
work location. This meeting is considered a SEIU Bargaining
Task Force Session opportunity for the above named
employee[s]; therefore there will be no loss in pay to the
employee[s]. As an FYI, there should be NO overtime for
employee[s] working day shift and then going to the task force
meetings. The approval by Human Resources is in accordance
with the MOU between the parties.
County HR has sent department supervisors similar e-mail messages with slightly
different wording and with the phrase “there will be no loss in pay to the employee[s]”
underscored. Once the request is approved by both HR and the Union representative’s
supervisor, the employee is permitted to use released time for the event. In or around 2009,
employees on released time were instructed to record it on their timesheets under the REG
code, the same payroll code used for actual hours worked. The payroll office has no role in
tracking released time. HR does track released time, primarily for the purposes of determining
whether the time should be deducted from the released time bank or whether the time was
reimbursable to the County.
The UNSEU Payroll Code
In late 2009 or early 2010, the County created a new payroll code, “UNSEU,” for Local
721 representatives to report released time on their timesheets. Local 721 initially opposed use
of the code because its purpose was not made clear. Later, during joint labor-management
meetings, County representatives explained that the code was intended to track released time
via the payroll system in order to reconcile the MOU’s released time bank. Under the practice
in place at the time, with all released time reported under the REG code, the County was
unable to determine from looking at timesheets whether the employee was performing their
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regular work duties or using released time. Released time was only tracked manually by HR
through reviewing individual requests.
When it introduced the UNSEU code, the County stated that it did not consider the code
to be subject to negotiations, because the County did not intend to make any changes to
employees’ compensation. The subject of shift differentials and other premium pay was not
discussed at the time.
SEIU eventually withdrew its opposition to the code, and it was implemented around
March 2010. The code was later incorporated into the 2010-2011 MOU. This new MOU
language, like that before it, also did not specify whether employees using released time are
eligible for shift differentials or other forms of premium pay.
Employees’ Use of Released Time and Claims for Shift Differentials in 2009 and 2010
The record includes testimony from two SEIU-represented employees—Thomas and
Kevin Luke (Luke)—regarding their claims for shift differentials while released from their
regular duties. Vicki Pounders (Pounders), who oversees the payroll process in the Sheriff’s
Department, also testified.
Pounders explained that each timesheet is reviewed by as many as three people—the
employee’s supervisor or manager, a timekeeper, and a member of Pounders’s staff. Pounders
testified that she believed supervisors and managers generally focused their review on
overtime reporting, rather than “the intricacies of specialty pays, shift differentials, things like
that.”3 Pounders also testified that the timekeeper reviews the timesheet, but “[w]hether they
review it for accuracy or just enter what they see is a different matter.” Pounders testified that
her staff in the Sheriff’s Department’s payroll unit does review timesheets for accuracy, but due
3 Thomas—who is herself a supervisor—also testified that supervisors do not receive
specific training on payroll reporting.
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to limited resources, they were only able to review about half of the more than 4,000 employee
timesheets for each pay period during 2010 and 2011.
Pounders further testified it was not her intent to pay shift differentials for employees
on released time. She admitted the County had likely done so before 2010, because it was not
possible to determine from viewing a timesheet whether an employee claiming a shift
differential was on duty or on released time. The only way to do so would have been to
compare the timesheet to any requests for released time.
Pounders also testified that shift differentials do not apply when employees take
bereavement leave. Thomas agreed.
1. 	Thomas
At the times relevant to this case, Thomas was employed as a communications supervisor
in the County Sheriff’s department. Thomas became active in SEIU beginning in 2008. She
was one of between 12 and 15 members of SEIU’s negotiating team for the 2009-2010 MOU.
Thomas testified that she requested and received released time for negotiation sessions
whenever the meetings occurred during her regularly scheduled shift. Under the practice
described above, HR e-mailed each negotiating team member’s supervisor for department-level
approval. In Thomas’s case, the e-mail was sent to Grotefend.
Thomas testified that she claimed a shift differential whenever she was assigned to a
qualifying shift, and was never denied any differentials while using released time during the
2009 negotiations.4 That is, her claim for shift differentials were paid by the County during
this period. Although the parties agreed to new released time provisions during those
4 Thomas clarified that while on released time, if the bargaining session lasted beyond
her scheduled hours of work, she would participate in bargaining from that point on without
overtime pay, shift differential, or compensation of any kind.
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negotiations, the parties did not discuss whether employees using released time qualify for
shift differentials or other premium pay. Thomas said that she believed other SEIU negotiators
also were paid differentials during this time, but there was no evidence to what extent SEIU’s
negotiators qualified for or claimed shift differentials and to what extent those individuals
notified Thomas of whether they were paid for such differentials. Thomas reported only that
no one informed her that they had not been paid appropriate shift differentials. Thomas noted
that she and the other bargaining team members frequently talked about issues related to
released time. Thomas also testified to claiming a shift differential for released time for Union
education and training activities, labor-management committee meetings, and grievance
representation during 2009, provided her released time corresponded to a shift that would
otherwise qualify for the differential pay. The County also paid these claims.
In 2010, Thomas was mostly scheduled for the day shift. She testified, however, that
she continued claiming shift differentials for part of her shift so long as her shift included
hours described in the shift differential provisions of the MOU. For instance, although she
worked daytime hours in 2010, she was frequently assigned to work from 6:00 a.m. to
4:30 p.m. On those occasions, Thomas claimed and was paid one and a half hours of shift
differential for the hours between 6:00 a.m. and 7:30 a.m.
Thomas also described a trip to Washington D.C. in March 2010 for Union training, for
which the County granted her released time. Thomas was released from six of her shifts, two
of which qualified for a shift differential. She claimed shift differentials for those two eligible
shifts during her released time, and the County paid them.5
5 Thomas also described other Union education/training activities for which she
requested and received released time, and claimed and was paid shift differentials in 2010.
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Thomas was also involved in successor MOU negotiations in 2010. She said that she
used released time to participate in those negotiations and that she claimed a shift differential
anytime she was assigned a 6:00 a.m. to 4:30 p.m. shift. Thomas said that the County paid for
her claimed shift differentials throughout 2010, even when she was using released time.
Thomas’s testimony is corroborated by her payroll records. Between April 2010, when
Thomas began using the UNSEU code, through January 2011, these documents show nine
instances where she claimed a shift differential for a period of time she also claimed to have
been granted released time. All of those instances were when Thomas was working a day shift
from 6 a.m. to 4:30 p.m., and she generally claimed 1.5 hours of night shift differential for the
hours between 6 a.m. and 7:30 a.m.6 She did so without incident on July 15 and August 24,
2010.
Thomas then claimed the 1.5 hour shift differential for August 30-31 and September 1,
2010. Pounders questioned this in an e-mail to other County staff, noting that Thomas had
been released for a union training scheduled from 8 a.m. to 5 p.m. each of those days, that she
stated she worked from 6 a.m. to 4:30 p.m., and that she claimed 1.5 hours of shift differential.
Pounders asked, “Is this acceptable?” William Berkley (Berkley), of the County’s human
resources department, responded that the County’s position was that employees were not
entitled to a shift differential for those hours because they came at the beginning of the day
shift. Berkley added: “If it has been paid in the past—it was a mistake and should not be done
going forward. Nor should retroactive corrections be made as the matter has only recently
been the subject of much debate.” Berkley did not address the issue of Thomas being on
released time for those shifts.
6 On August 24, she claimed 3.5 hours. It is not clear why from the timesheet, and
Thomas did not testify about these specific instances.
10

There is no evidence that the County communicated this position to SEIU or any
employees, including Thomas. Despite this exchange between Pounders and Berkley, Thomas
continued to claim the 1.5 hours of shift differential when her day shift began at 6 a.m.,
regardless of whether she worked or was released. She claimed the differential for these hours
65 times between October 2010 and January 2011, including four times (October 6,
October 13, November 10, 2010, and January 20, 2011) when she was released from her entire
shift. Thomas’s pay stubs for October 6, November 10, 2010, and January 20, 2011 are in
evidence, and show that she received her shift differentials for those dates.
Thomas next claimed shift differentials for time she was released on February 15 and
February 20, 2011. In both instances, she was scheduled to work night shifts. Those shift
differentials were not paid.
2. 	Luke
Luke was employed by the County Department of Public Social Services. Luke was on
SEIU’s bargaining team in 2009 and 2010. Until July 2010, Luke worked shifts on Friday,
Saturday, and Sunday that qualified him for a shift differential. Luke testified that on two or
three occasions during this time period, he was granted released time for negotiations or union
education activities and claimed the shift differential. Luke admitted that he never examined
his pay warrants to confirm that he received his claimed shift differentials, but did not recall
ever being informed that a shift differential had been denied. Luke’s timesheets do not show
any instances where he used the UNSEU code and claimed a shift differential. There was also
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at least one instance when it appears Luke was eligible for shift differential while on released
time, but did not claim the differential on his timesheet.7
3. Other Employees
The record includes the timesheets of employees Marlo Clemons (Clemons), a
registered nurse, and Danny de la Pena (de la Pena), a respiratory care practitioner. There was
no evidence—testimonial or otherwise—that either of these individuals were SEIU
representatives, but their timesheets show several instances where they claimed shift
differentials while on released time reported using the UNSEU time code. De la Pena used the
UNSEU code to show he was released from his entire shifts on January 20 and May 17, 2011,
and claimed shift differentials both days.8 Clemons was similarly released from her entire shift
on January 20, April 14, April 20, and June 7, 2011. Clemons also claimed a shift differential
on October 28, 2010, a date on which she received released time for her entire shift, but did not
use the UNSEU code on her timesheet. Each timesheet is signed by a supervisor under penalty
of perjury, but there is no evidence whether the shift differentials were paid to the employees.9
Documentation also showed that another employee, Dolores Gonzalez (Gonzalez), a
registered nurse, claimed a shift differential for time spent on released time for union training
on December 7, 2010, using the UNSEU time code. This differential was apparently removed
7Specifically, Luke’s timesheet indicated 12 hours of released time each day on Friday
June 4, Saturday June 5, and Sunday June 6, 2010, with no shift differentials. His other
timesheets show that on days he did not use the UNSEU code, he typically claimed the shift
differential for parts of those shifts.
8 Shift differentials claimed on May 25 and May 26, 2011, which were shifts de la Pena
was released for negotiations, are crossed out.
9 The County claims that Clemons failed to claim a shift differential twice when she
was released for bargaining, but it is not clear that Clemons would have been entitled to it
under SEIU’s version of the past practice. On both occasions, Clemons worked her regular
shift the following day and did not claim a shift differential.
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by a human resources technician who stated in an e-mail that Gonzalez was not eligible for the
differential “while in training.”
The record also includes a chart, introduced by the County, concerning the released
time taken for an employee, Mark Grays (Grays), during negotiations in 2010. The chart
identifies three instances where Grays was released from his night shift to participate in
negotiations, but states that he did not claim any “specialty pay.” Thomas identified Grays as a
member of SEIU’s bargaining team in 2010 who may have been eligible for shift differentials.
The 2011 Negotiations
Thomas was Local 721’s chief negotiator in the 2011 successor MOU negotiations,
which began in January of that year. She was assigned to the graveyard shift for at least part of
that year. According to Thomas, because she was assigned to work hours between 11:00 p.m.
and 7:30 a.m., the assignment qualified for a night shift differential under the MOU. Although
negotiations were typically scheduled for daytime hours—when Thomas was not scheduled to
work—she requested and received released time for the shift before each negotiation session
because she would be otherwise unable to rest between working and participating in
bargaining. Thomas also claimed a night shift differential for released time used in 2011. In
January 2011, the County paid Thomas’s claimed shift differentials, even on days when she
was using released time. Luke also participated on the Union’s negotiating team in 2011.
However, during that time Luke was not assigned to a shift eligible for differential pay; thus,
he did not claim any shift differential during his released time for negotiations in 2011.
In February 2011, during successor MOU negotiations, the County stopped paying shift
differentials for employees using released time. According to Thomas, in a negotiation session
around that time, County Employee Relations Director Brian McArthur, informed Local 721
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that “they didn’t intend to pay them” and that “[t]hey weren’t going to pay shift differential for
Union time.” Thomas inquired about this with her supervisor, Grotefend. In an e-mail, dated
March 15, 2011, Grotefend explained that he received direction from HR that ‘“the County’s
position is that employees off work for union release time are not eligible to receive any [shift
differential pay].”’ On May 25, 2011, County HR representative Cherie Pearson confirmed
that Thomas’s shift differentials claimed for time reported under the UNSEU code were
removed.
Before March 2011, HR’s notifications to department supervisors of approved released
time requests noted that “there will be no loss in pay to the employee[s].” After March 2011,
some of HR’s released time notifications to departments stated, “there will be no loss in
regular compensation,” although some continued to use the “no loss in pay” language.
(Emphasis added.)
On March 15, 2011, the County passed a proposal across the negotiating table that
expressly listed released time among the other forms of leave ineligible for shift differentials.
Local 721 rejected that proposal. Local 721 proposed modifying the shift differential
provisions in the MOU to expressly require employees to be paid for shift differentials while
taking released time if the shifts otherwise qualified for a differential. The County rejected
that position. Both proposals were ultimately withdrawn before the parties ratified their
successor MOU.
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Advisory Arbitration Decisions Regarding Premium Pay
Local 721 filed multiple grievances over union representatives who were denied
claimed premium pay while using released time. On January 23, 2012, Arbitrator Jill Klein
(Klein) ruled on a grievance involving Schilb, a Licensed Vocational Nurse II. Klein
concluded that Schilb was not entitled to a “specialty assignment” differential while using
released time for bargaining because the plain language of the MOU in effect at the time
required that Schilb be “working in the designated units” identified as qualifying for specialty
assignment differential.
On October 1, 2012, Arbitrator Walter Daugherty issued an advisory decision finding
that that the County violated an established past practice regarding the payment of shift
differentials by rejecting various claims by Thomas in 2011. Both the Klein and the Daugherty
decisions expressly declined to reach the issue of whether the denial of differentials violated
MMBA section 3505.3.
DISCUSSION
I. 	The Unalleged Violation
SEIU’s sole exception is to the ALJ’s dismissal of the unalleged violation regarding
Schilb. The ALJ determined that PERB’s unalleged violation test was not met in this case,
finding that the issue was not “actually litigated” and that the County had no opportunity to
cross-examine witnesses on it. The only evidence on this issue was an advisory arbitration
decision and a stipulation that Thomas would testify to a statement made to her by Schilb
regarding Schilb’s unwillingness to participate in negotiations.
We need not address whether the unalleged violation test was satisfied, because the
allegations regarding Schilb are untimely. When the unalleged violation arises from the same
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facts as the allegations in the complaint, the unalleged violation is timely. (City of Roseville
(2016) PERB Decision No. 2505-M, p. 28.) When the unalleged violation is a matter that was
alleged in the unfair practice charge but omitted from the complaint, the unalleged violation is
timely if the charge was timely filed. (Fresno County Superior Court (2008) PERB Decision
No. 1942-C, p. 14.)
The unalleged violation in this case does not arise from the same facts as the allegations
in the complaint. According to the advisory arbitration decision, Schilb was informed in
March 2010 that she would no longer receive special premium pay while on released time for
negotiations. The complaint in this case alleges that the County began denying shift
differentials and special premium pay a year later—in March 2011.
Nor was the unalleged violation included in the unfair practice charge. Neither the
original charge nor the amended charge includes any reference to Schilb or any denial of
compensation in 2010. Therefore, the timeliness of the allegation regarding Schilb must be
established separately from the allegations included in the charge and complaint.
The Schilb matter concluded with the advisory arbitration decision, dated January 23,
2012. The earliest mention of Schilb in this case occurred at the formal hearing on
December 16, 2013. There, SEIU’s attorney stated that the requested make whole remedy
would not only include those individuals who were denied shift differentials and special pay
premiums in March 2011, but would also “go back a bit further to one of the particular
individuals named Ms. Schilb.” Although SEIU argues for the application of equitable tolling,
this would apply only to the period of time while the matter was pending in advisory
arbitration. (County of Santa Barbara (2012) PERB Decision No. 2279-M, p. 12.) SEIU has
not offered any basis for tolling the statute of limitations from January 23, 2012 through
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December 16, 2013. Therefore, we affirm the dismissal of this allegation on the grounds that it
is untimely.
II. 	The Unilateral Change
The ALJ concluded that the County unilaterally changed a past practice of paying shift
differentials to employees on released time. In the process, the ALJ rejected the County’s
arguments that past practice could not be examined because the MOU was clear and
unambiguous. The County excepts to these threshold determinations, as well as the ultimate
conclusion that there was a binding past practice.10 We disagree with the County’s exceptions
on each point and affirm the ALJ.
Whether the MOU is Clear and Unambiguous
In our previous decision in this case, we rejected the County’s argument that the
MOU’s shift differential provisions were clear and unambiguous. Although we acknowledged
that the shift differentials are to be paid for hours “actually worked,” we noted that there is a
specific provision enumerating the types of leave to which shift differentials do not apply.
(County of Riverside, supra, PERB Decision No. 2307-M, p. 22-23.) That provision states that
“[s]hift differentials do not apply to vacation, sick leave, holiday pay, call or standby duty”—
thus omitting any type of union released time. We further noted that:
[U]nion released time is of a categorically different nature of paid
time than vacation, sick leave, holiday pay, call or standby duty.
Employees on union released time are physically at the worksite,
but have been released from their regularly assigned duties by the
County for a designated period of time. They are not at home, on
vacation or otherwise free to attend to personal or other non-work
related business.
10 The ALJ also rejected the County’s argument that the MOU’s zipper clause precludes
consideration of the alleged past practice. The County did not renew this argument in its
exceptions, and it is not before us. (PERB Reg. 32300, subd. (c) [PERB Regulations are
codified at California Code of Regulations, title 8, section 31001 et seq.].)
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(Id. at p. 23.) Therefore, we concluded that the MOU was “silent, or at best sufficiently
ambiguous, on the question whether employees are entitled to their full wages including shift
differentials or special pay premiums when utilizing union released time.” (Id. at p. 25.)
In support of its argument that the MOU is clear and unambiguous, the County argues
that the list of exclusions “cannot have been regarded as exhaustive by either side, as it omits
reference to several types of leave, including bereavement leave, comp time, jury duty and
[Family and Medical Leave Act] hours, not just union release time,” and Thomas
acknowledged that shift differentials do not apply to bereavement leave. (Exceptions, p. 5.)11
Rather than compelling a finding that the MOU is clear and unambiguous, the fact that the list
of exclusions was not intended to be exhaustive simply means the MOU is also silent on
whether shift differentials apply to these other types of leave. Moreover, since bereavement
leave falls within the same general category as vacation, sick leave, and holiday pay, the fact
that shift differentials do not apply to bereavement leave does not assist the County.
Therefore, we find no basis to disturb our conclusion in County of Riverside, supra,
PERB Decision No. 2307-M, that the MOU is not clear and unambiguous. We next examine
whether the evidence presented established a past practice.
The Test for Past Practice
In our prior decision in this case, we summarized the various ways the Board has
described the standard for establishing a past practice:
The Board has stated that it must be unequivocal, clearly
enunciated and acted upon, and readily ascertainable over a
reasonable period of time as a fixed and established practice
accepted by both parties. (County of Placer (2004) PERB
11 The County does not cite any evidence regarding whether shift differentials apply to
the other types of leave listed.
18

Decision No. 1630-M, citing Hacienda La Puente Unified School
District (1997) PERB Decision No. 1186; see also Riverside
Sheriffs’ Assn. v. County of Riverside (2003) 106 Cal.App.4th
1285, 1291.) In addition, PERB has described an enforceable
past practice as one that is “regular and consistent” or “historic
and accepted.” (Hacienda La Puente Unified School District,
supra, PERB Decision No. 1186.) PERB has also held that a past
practice is established through a course of conduct or as a way of
doing things over an extended period of time. (Pajaro Valley
Unified School District (1978) PERB Decision No. 51 (Pajaro
Valley); Cajon Valley Union School District (1995) PERB
Decision No. 1085.)
(County of Riverside, supra, PERB Decision No. 2307-M, p. 20.)
There is no dispute in this case that employees claimed and received shift differentials
consistently over a period of several years. However, the County advances several arguments
for why this fact does not support a binding past practice.
The County argues that any past practice is undermined by the apparent failure of some
employees to claim shift differentials to which they would have been entitled under the
asserted past practice. There is evidence that Luke failed to do so on one timesheet. The
County also points to a chart regarding Grays, which the ALJ refused to rely on to make a
finding of fact. The ALJ found the Grays chart to be uncorroborated hearsay, and the ALJ
therefore applied PERB Regulation 32176, which provides that hearsay evidence “is
admissible but shall not be sufficient in itself to support a finding unless it would be admissible
over objection in civil actions.” In its exceptions, the County relies on the parties’ stipulation
that the Grays chart is admissible. We decline to decide whether the ALJ erred in her
evidentiary ruling, as any such error would not change the outcome of this case and was
therefore non-prejudicial. Even viewing the Grays chart in the light most favorable to the
County, and adding in the isolated other instances in which the County may have declined to
19

pay shift differentials to employees on released time, such evidence would not undermine the
finding of a past practice.
The Grays chart lists the dates Grays was released to participate in negotiations, and
recites “no specialty pay” for dates when he was released from the night shift. The chart
would establish that there were at most three instances, each appearing on a different
timesheet, where Grays was released from a night shift for purposes of bargaining but did not
receive “specialty pay.” Along with Luke, then, there were four timesheets that were incorrect
according to the past practice asserted by SEIU. The County claims that if such a practice had
existed, the County would have noticed and corrected the failure to claim the differentials
when the employees’ timesheets were audited by the payroll unit. This argument is
unpersuasive. The instances where a claim was paid far outnumber the few instances where no
claim was made. “A practice need not be universal to constitute a term or condition of
employment, as long as it is regular and longstanding.” (Sunoco, Inc. (2007) 349 NLRB 240,
244.)
We also reject the County’s reliance on evidence that a shift differential was removed
from Gonzalez’s timesheet for a shift where she was released for union training. The County
claims that this is evidence of a policy of not paying shift differentials. It is, however, hardly
conclusive. This is the only instance of a shift differential being removed from an employee’s
timesheet prior to the alleged unilateral change. Just as a single instance is not sufficient to
create a past practice (Petaluma City Elementary School District/Joint Union High School
District (2016) PERB Decision No. 2485, p. 27), a single instance in which a past practice was
not followed is not sufficient to defeat the past practice (Sunoco, Inc., supra, 349 NLRB 240,
244).
20

We also reject the County’s argument that it was not aware of the asserted past practice.
A significant aspect of the burden of establishing a clear and unequivocal past practice is
showing that the other party was aware of it. Thus, when there is no evidence that the
employer’s representatives have knowledge of a past practice, the Board does not find it to be
binding. For instance, in County of San Joaquin (2016) PERB Decision No. 2490-M, the ALJ
found that a past practice concerning employee schedules was not binding where it was not
known to anyone other than the lead employee, who had no authority to change employee
schedules. We affirmed. Similarly, the Board found no binding practice in Omnitrans (2008)
PERB Decision No. 1996-M, in which the union alleged there was a past practice of allowing
employees to use union business leave to organize and negotiate for employees of another
employer. There was no evidence that the employer was ever told that this was the purpose of
the leave. By contrast, in Omnitrans (2009) PERB Decision No. 2030-M, the Board found a
binding practice where there was evidence that union representatives were openly conducting
union business in a particular area of the employer’s facilities, and the managers’ denials that
they were aware of this were not credible.
The record before us contains sufficient evidence that County officials were aware that
employees received shift differentials for times they were released from their duties for union
activities. There was undisputed evidence that supervisors and managers were aware of the
times employees were released and of the times employees claimed shift differentials. Before
March 2010, this awareness came from the fact that the supervisors and managers approved the
released time and then later approved the timesheets. And after the UNSEU code was
implemented in March 2010, the fact that employees were claiming shift differentials while on
released time would have been evident from reviewing the timesheets alone.
21

________________________
The County argues that its supervisors and managers cannot be held to have been aware
of these claims of shift differentials. The County relies on Pounders’s testimony that she did
not believe the supervisors and managers were checking for this issue, and on Thomas’s
testimony that supervisors were not trained on payroll reporting. There are two problems with
this argument. First, there was no testimony from the supervisors or managers who approved
the timesheets in question. Pounders’ belief about what those individuals were aware of is not
probative, while Thomas’s testimony that they did not receive training does not answer the
question of what the supervisors or managers knew. Second, since the supervisors or managers
signed the relevant timesheets, it is presumed that they were familiar with the contents of those
documents, regardless of whether they actually reviewed the timesheet or were aware of the
legal significance of its contents.12 It is possible that no single County official was personally
aware of the numerous instances making up the past practice in this case. However, as we held
in County of Riverside, supra, PERB Decision No. 2307-M, the County had “the responsibility
as a public employer, to be cognizant at all times of how it pays its employees and what it pays
its employees for.” (Id. at p. 28.) The County may not defeat the creation of a binding past
practice by failing to train its managers and supervisors or by failing to devote adequate
resources to auditing employee timesheets.
We also reject the County’s argument that the past practice is not binding because the
shift differential payments over several years were a mistake. Preliminarily, there is no
12 There was also undisputed evidence that Pounders personally was aware of at least
one instance when Thomas claimed a shift differential while on released time. Pounders
brought this to the attention of other County representatives. While the conclusion of these
internal discussions was that the payment was improper—for reasons entirely unrelated to
union released time—there is no indication that the County took further action to investigate
whether there were other instances of shift differentials on released time, nor does it appear
that the County even informed Thomas of its position at that time.
22

________________________
evidence to support this argument. There is evidence of inconsistency, and there is evidence of
inattention and lack of resources. But the payments were not contrary to the MOU’s shift
differential provisions, which do not state whether they apply to released time. Nor were they
contrary to any other County policy that is in evidence. The only support for the argument that
the payments were a mistake is the testimony of Pounders, who did nothing more than deny
that it was her intent to pay shift differentials for released time.13 This does not reflect an
affirmative policy that shift differentials would not be paid for released time. Thus, it appears
that in the absence of a clear policy, a practice developed by which employees claimed shift
differentials while on released time, and the County did not object. This merely describes one
of the ways a past practice may originate in the first place—to fill a gap where there is no
policy or the policy is unclear—not a “mistake.”
Even if there were evidence that the County’s actions over several years were nothing
more than a mistake, this would not excuse a unilateral change to an otherwise enforceable
past practice. Except where a past practice conflicts with an MOU’s clear and unambiguous
terms (Marysville Joint Unified School District (1983) PERB Decision No. 314), past practices
are neither less binding nor less important than the terms of an MOU (San Francisco Fire
Fighters Local 798 v. Board of Supervisors (1992) 3 Cal.App.4th 1482, 1490 [“Changes in
existing and acknowledged practices are subject to the meet and confer requirement, even if
those practices are not formalized in a written agreement or rule”]). Ensuring that past
practices are binding benefits both parties in a bargaining relationship. While a union may, as
in this case, attempt to show a unilateral change to a past practice, an employer may also rely
on a past practice as a defense to a unilateral change allegation. (See, e.g., Salinas Valley
13 According to the transcript, Pounders was asked, “Was it your intent to pay
employees shift differential pay for Union release time?” She responded, “No.”
23

________________________
Memorial HealthCare System (2017) PERB Decision No. 2524-M, p. 20 [no unilateral change
where employer’s actions were consistent with past practice developed with prior exclusive
representative]; Temple City Unified School District (1989) PERB Decision No. 782, p. 14 [no
unilateral change where exclusive representative “acquiesced to the development of [the] past
practice”].)
We also take guidance from decisions of the National Labor Relations Board (NLRB),
which have held that a past practice may be found even where the employer’s actions were
indisputably the result of a mistake. (Garden Grove Hosp. & Med. Ctr. (2011)
357 NLRB 653, 658.) The NLRB has held that benefits that were initially granted by mistake
become binding past practices when maintained over a sufficient period of time. (See, e.g.,
ibid. [practice maintained for 9 months]; Strategic Res., Inc. (2016) 364 NLRB No. 42
[6 months].)14 The County may not evade a finding of a past practice by failing to train its
supervisors and managers, failing to review the information available to it, and then describing
their actions as “mistakes.”
14 Indeed, the facts of this case demonstrate that requiring an employer to meet and
confer in good faith before terminating a past practice believed to have developed by mistake
is hardly an oppressive burden. The County did in fact propose successor MOU language that
would have clarified that shift differentials were not available for released time; it then
withdrew that proposal.
Moreover, in most cases, nothing would prevent an employer from implementing a
change in the past practice after bargaining in good faith to impasse and exhausting statutory
impasse procedures. This option was available to the County, at least as to released time that
is not mandated by MMBA section 3505.3. As we explained in County of Riverside, supra,
PERB Decision No. 2307-M, and reiterate below, section 3505.3 gives recognized employee
organizations a statutory right to released time for specified purposes. The County could not
have imposed a limitation of that right. (Rowland Unified School District (1994) PERB
Decision No. 1053, p. 7, fn. 5.)
24

________________________
III. 	Violation of MMBA Section 3505.3
The County also excepts to the ALJ’s conclusion that the County violated MMBA
section 3505.3 by failing to pay shift differentials to employees who were on released time
during times outside of their qualifying shifts. Because the ALJ followed our interpretation of
this section from County of Riverside, supra, PERB Decision No. 2307-M, the County urges us
to overrule that decision. We considered the interpretation of section 3505.3 extensively in
that decision, and the County offers no persuasive reason to depart from it. We therefore
decline to do so.
At the time of the events at issue in this case, MMBA section 3505.3 stated:
Public agencies shall allow a reasonable number of public agency
employee representatives of recognized employee organizations
reasonable time off without loss of compensation or other
benefits when formally meeting and conferring with
representatives of the public agency on matters within the scope
of representation.
Effective January 1, 2014, section 3505.3 was amended to expand the purposes for which an
employer must grant released time without loss of compensation, but with no substantive
changes to the language relevant to this case. (Stats. 2013, ch. 305.)15
15 MMBA section 3505.3 now states:
(a) Public agencies shall allow a reasonable number of public
agency employee representatives of recognized employee
organizations reasonable time off without loss of compensation or
other benefits when they are participating in any one of the
following activities:
(1) Formally meeting and conferring with representatives of the
public agency on matters within the scope of representation.
(2) Testifying or appearing as the designated representative of the
employee organization in conferences, hearings, or other
proceedings before the board, or an agent thereof, in matters
25

________________________
In County of Riverside, supra, PERB Decision No. 2307-M, we held that MMBA
section 3505.3 entitles employees to the same compensation they would have otherwise earned
if they had not been released for bargaining. We stated:
The Board has described the right to released time as the right of
an employee “to continue to receive full compensation.”
(Anaheim [Union High] School District [(1981)] PERB Decision
No. 177, emphasis added.) With this description in mind, we
construe “loss” within the meaning of MMBA section 3505.3 as
measured against the amount of pay the employee would have
earned if the employee had not been “formally meeting and
conferring with representatives of the public agency on matters
within the scope of representation.” To construe it otherwise
would exact a penalty on employees for engaging in formal
negotiations, and create a chilling effect on the exercise of
protected employee rights, i.e., participation in organizational
activities.
(Id. at pp. 32-33, fn. omitted.) Thus, we concluded that SEIU stated a prima facie case by
alleging that the County failed to pay employees the shift differentials and specialty payments
they would have received if they had worked their normal shifts, instead of being released for
bargaining. (Id. at p. 33.)
relating to a charge filed by the employee organization against the
public agency or by the public agency against the employee
organization.
(3) Testifying or appearing as the designated representative of the
employee organization in matters before a personnel or merit
commission.
(b) The employee organization being represented shall provide
reasonable notification to the employer requesting a leave of
absence without loss of compensation pursuant to subdivision (a).
(c) For the purposes of this section, “designated representative”
means an officer of the employee organization or a member
serving in proxy of the employee organization.
26

In accordance with this decision, the ALJ found a violation of MMBA section 3505.3
when the County announced its refusal to pay employees their shift differentials. In its
exceptions, the County does not dispute that, as a factual matter, it began to refuse to pay
employees their shift differentials in February 2011. It raises essentially three legal arguments
for why our interpretation of section 3505.3 was wrong. None has merit.
First, the County argues that the ALJ was not bound by our prior decision because the
existence of a past practice was a factual matter for the ALJ to determine. In the absence of a
past practice, the County argues, there was no violation of MMBA section 3505.3. Although
not clearly articulated, the County’s argument seems to be that a “loss of compensation” occurs
only if the employer has a past practice of paying the shift differentials for released time.
Because we have affirmed the ALJ’s finding that there was a past practice, the
County’s argument on this point is moot. Nevertheless, we explain why the statutory violation
is not dependent on whether there is a past practice.
Our reading of MMBA section 3505.3 is that the “loss of compensation” is measured
against what the employee would have received if he or she had not been released for
bargaining, not what the employee has previously received during bargaining. To hold
otherwise would interpret section 3505.3 as doing nothing more than preventing the County
from changing how it compensates employees on released time. As we noted previously,
however, to construe the term “loss” otherwise “would exact a penalty on employees for
engaging in formal negotiations. . . .” (County of Riverside, supra, PERB Decision
No. 2307-M, p. 32.) We reiterate that we do not believe that was the Legislature’s intent in
enacting section 3505.3.
27

Second, the County urges us to abandon our interpretation of MMBA section 3505.3
from County of Riverside, supra, PERB Decision No. 2307-M and instead follow a purportedly
contrary statement by a federal district court. The particular statement relied on by the County
is that section 3505.3 “requires only that employee union representatives be compensated for
time spent in negotiations during their regularly scheduled work hours.” (Local 1605
Amalgamated Transit Union, AFL-CIO v. Central Contra Costa County Transit Authority
(N.D. Cal. 1999) 73 F.Supp.2d 1117, 1125 (Local 1605).)
Before the ALJ, the County argued that Local 1605, supra, 73 F.Supp.2d 1117 was
“binding precedent.” The ALJ rejected this argument on three grounds: first, that the statement
was actually dicta, since the federal court ultimately declined to consider whether there had
been a violation of section 3505.3 (Local 1605, supra, at p. 1126); second, that federal
decisions are not binding on questions of state law; and third, that trial court decisions are
never considered binding precedent. The County does not dispute that the ALJ properly
rejected the argument that Local 1605 was binding precedent, but now argues that Local 1605
should be followed as persuasive authority.
We disagree that the federal court’s decision is persuasive authority on the question
before us. This is primarily because the County is quoting the court out of context.
Immediately before the statement the County relies on, the court explained that the employer
“had paid Plaintiffs [i.e., the union’s negotiators] for all time spent in negotiations, including
overtime hours and hours spent negotiating during Plaintiffs’ days off.” (Local 1605, supra,
73 F.Supp.2d 1117, 1125.) 	It then states: “Such compensation was not within the mandate
of § 3505.3 of the MMBA, which requires only that employee union representatives be
28

compensated for time spent in negotiations during their regularly scheduled work
hours.” (Ibid.)
Thus, the federal court was considering, offhandedly, whether MMBA section 3505.3
required an employer to compensate employees for overtime and time spent negotiating on
their days off. We are faced with a different question: whether employees who are released
from their regular job duties for bargaining must receive the same pay they would have
received had they worked their regular shift. Local 1605, supra, 73 F.Supp.2d 1117 was not
considering this question, so it is not persuasive authority.
Finally, the County argues that it would be a gift of public funds to pay an employee a
shift differential for a shift they did not work. Gifts of public funds are a constitutional issue,
as they are prohibited by article XVI, section 6 of the California Constitution. We consider
this argument to avoid any conflict between the Constitution and our interpretation of MMBA
section 3505.3. (Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 583.)
We perceive no conflict here. It is well settled that “[m]oney spent for public purposes
is not a gift even though private persons may benefit.” (Community Memorial Hospital v.
County of Ventura (1996) 50 Cal.App. 4th 199, 207.) As we explained in County of Riverside:
our interpretation of MMBA section 3505.3 is consistent with the
underlying public policy embodied in the MMBA to “promote
full communication between public employers and their
employees by providing a reasonable method of resolving
disputes regarding wages, hours, and other terms and conditions
of employment between public employers and public employee
organizations.” (§ 3500, subd. (a).) This policy is not served by
a compensation system that deters employees from engaging in
collective bargaining.
(County of Riverside, supra, PERB Decision No. 2307-M, p. 33.) Thus, our interpretation of
section 3505.3 advances the very same purposes as the MMBA itself. Those purposes are
29

unquestionably public purposes. Moreover, benefits and pay for public employees are also
considered to advance public purposes. (Sturgeon v. County of Los Angeles (2008)
167 Cal.App.4th 630, 638.) Therefore, our interpretation of the MMBA does not result in a gift
of public funds.
ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, it has been found that the County of Riverside (County) violated the Meyers-Milias-
Brown Act (MMBA) sections 3503, 3505, 3505.3, 3506, and 3506.5, subdivisions (a), (b), and
(c), and therefore committed unfair practices under MMBA section 3509, subdivision (b), and
Public Employment Relations Board (PERB or Board) Regulation 32603, subdivisions (a), (b),
(c), when it: (1) unilaterally ceased paying employees’ qualified claims for shift differentials
during approved released time for negotiations or other union activities; and (2) failed to pay
employees their full compensation or other benefits during approved released time for formal
meeting and conferring with representatives of the County over matters within the scope of
representation.
Under MMBA section 3509, subdivision (b), it is hereby ORDERED that the County,
its governing body, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to provide notice and opportunity to bargain to
Service Employees International Union, Local 721 (Local 721) over decisions to cease paying
employees’ claims for shift differentials during approved released time for negotiations or
other union activities.
30

2. 	Failing to pay employees on approved released time for formal meeting
and conferring with representatives of the County over matters within the scope of
representation their full compensation or other benefits.
3. 	Interfering with Local 721’s right to represent bargaining unit members
in their employment relations with the County.
4. 	Interfering with bargaining unit members’ right to participate in the
activities of an employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the policy change regarding payment of employees’ claims for
shift differentials during approved released time for negotiations or other union activities, and
revert to the established practice in place before March 1, 2011, of paying those claims.
2. 	Make whole unit employees for financial losses suffered as a result of
the County’s unlawful action. Any employees who, but for their participation in negotiations
or other union activities while on approved released time, would have qualified for a shift
differential, have suffered a financial loss. Any employees on approved released time for
formal meeting and conferring with representatives of the County over matters within the
scope of representation who were not paid their full compensation or other benefits have
suffered a financial loss. Any financial losses shall be augmented with interest at a rate of 7
percent per annum.
3. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations in the County where notices to employees customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the County, indicating that the County will comply with the terms of this
31

Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that this Notice is not reduced in size, altered,
defaced, or covered with any other material. 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 County to communicate with its employees in the bargaining
units represented by Local 721.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or to the General Counsel’s designee. The County
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 Local 721.
Members Banks and Krantz joined in this Decision.
32

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 No. LA-CE-702-M, Service Employees International
Union, Local 721 v. County of Riverside, in which all parties had the right to participate, it has been
found that the County of Riverside (County) violated the Meyers-Milias-Brown Act (MMBA),
Government Code section 3500 et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to provide notice and opportunity to bargain to Service
Employees International Union, Local 721 (Local 721) over decisions to cease paying employees’
claims for shift differentials during approved released time for negotiations or other union activities.
2. 	Failing to pay employees on approved released time for formal meeting and
conferring with representatives of the County over matters within the scope of representation their full
compensation or other benefits.
3. 	Interfering with Local 721’s right to represent bargaining unit members in their
employment relations with the County.
4. 	Interfering with bargaining unit members’ right to participate in the activities of
an employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the policy change regarding payment of employees’ claims for shift
differentials during approved released time for negotiations or other union activities, and revert to the
established practice in place before March 1, 2011, of paying those claims.
2. 	Make whole unit employees for financial losses suffered as a result of the
County’s unlawful action. Any employees who, but for their participation in negotiations or other
union activities while on approved released time, would have qualified for a shift differential, have
suffered a financial loss. Any employees on approved released time for formal meeting and
conferring with representatives of the County over matters within the scope of representation who
were not paid their full compensation or other benefits have suffered a financial loss. Any financial
losses shall be augmented with interest at a rate of 7 percent per annum.
Dated: _____________________ 	THE COUNTY OF RIVERSIDE
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.

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 721,
Charging Party,
v.
COUNTY OF RIVERSIDE,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-702-M
PROPOSED DECISION
(November 30, 2015)
Appearances: Weinberg, Roger & Rosenfeld, by Alan Crowley, Attorney, for Service
Employees International Union, Local 721; The Zappia Law Firm, by Edward P. Zappia and
Brett M. Ehman, Attorneys, for County of Riverside.
Before Valerie Pike Racho, Administrative Law Judge.
INTRODUCTION
In this case, an exclusive representative alleges that a public agency violated the
Meyers-Milias-Brown Act (MMBA) and PERB Regulations by unilaterally changing policies
for compensating union representatives who were released from their duties to participate in
collective bargaining or other union activities.1 The exclusive representative further alleges
that the public agency violated MMBA section 3505.3, which mandates that employees
released from duty to participate in formal meet and confer sessions with the public agency
shall suffer no “loss of compensation or other benefits.” The public agency denies any
violation of statute or regulation.
1 The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq.

________________________
PROCEDURAL HISTORY
On June 28, 2011, Service Employees International Union, Local 721 (Local 721 or
Union) filed an unfair practice charge with Public Employment Relations Board (PERB or
Board), alleging that the County of Riverside (County) unilaterally changed a long-standing
practice of paying union representatives their full wages, including any shift differentials,
when employees were released from duty for negotiations. Local 721 subsequently amended
the charge to more broadly allege a change to policies concerning paying shift differentials and
premium pay for any type of “union release time,” not only that for negotiations.2
On April 10, 2012, the PERB Office of the General Counsel (PERB OCG) dismissed the
charge in its entirety for failure to state a prima facie case. PERB OGC further determined that
the newly amended allegations were untimely. Local 721 filed exceptions to the dismissal on
May 4, 2012.
On March 1, 2013, the Board issued County of Riverside (2013) PERB Decision
No. 2307-M (Decision No. 2307-M),3 which reversed the dismissal of the unfair practice
charge and directed that a complaint issue alleging both a unilateral change to release time
policies and a denial of rights under MMBA section 3505.3. (Id. at pp. 33-34.) In doing so,
the Board found that the claims determined by PERB OGC to have occurred outside the statute
of limitations period were in fact timely under the equitable tolling doctrine. (Id. at pp. 16-17.)
On April 5, 2013, PERB OGC issued a complaint in the case. Consistent with the
Board’s order, the complaint alleged a unilateral change to existing release time policy. The
2 The parties use the phrase “release time” to discuss any time that an employee is
released from his or her regular duties by the County to participate in either formal
negotiations or other union-related activities under both contractual and statutory obligations.
3 Decision No. 2307-M was precedential. (See PERB Regulation 32320, subd. (c).)
2

________________________
complaint further alleged that the County unlawfully denied Local 721 representatives release
time on April 25, 2011, and again on June 9, 2011. The complaint did not assert the County’s
alleged changes to release time policies violated MMBA section 3505.3.
On May 8, 2013, the County filed an answer to the complaint, denying the substantive
allegations and asserting multiple affirmative defenses. An informal settlement conference
was held on July 15, 2013, but the matter was not resolved.
On December 16, 2013, a formal hearing was held. During the hearing, Local 721
moved to amend the complaint to withdraw the denial of release time allegations and to add the
claim that the alleged release time policy changes also violated MMBA section 3505.3. The
County did not object to either amendment and the motion was granted. The newly added
allegations were treated as denied by the County.
The parties also reached a series of stipulations in lieu of live testimony. First, the
parties agreed to the admission of several joint exhibits.4 The County also introduced its own
exhibits with no objections from Local 721.5 Second, the parties agreed to treat the transcripts
of witness testimony from a two-day advisory arbitration between the parties over the issue of
release time as though it were testimony produced during the course of the PERB hearing. The
transcripts from the advisory arbitration hearing before Arbitrator Walter F. Daugherty, which
4 Joint exhibits 1-8 consisted of various iterations of relevant contracts between the
parties, documents filed with PERB in the instant unfair practice charge, and the advisory
arbitration decision issued in January 2012 by Arbitrator Jill Klein. The evidentiary record of
the Klein arbitration was not introduced in the current record.
5 The County’s exhibits involve an investigation into the alleged misconduct of one of
the employees at issue here who claimed a shift differential during use of release time. The
County’s investigation of the employee is only tangentially related to the release time and shift
differential claims in the instant action. The County’s briefs did not reference this evidence
nor explain why it was introduced. Given the unsubstantiated relevance to deciding the issues
presented here, and that the documents consist of wholly uncorroborated hearsay, they have
not been considered in reaching a proposed decision.
3

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took place on March 15 and May 17, 2012, were included among the stipulated exhibits (Joint
Exh. 10). The full evidentiary record from the Daugherty arbitration and the arbitrator’s
advisory decision were also received in evidence (Joint Exh. 9). However, in regard to
PERB’s consideration of the arbitrator’s findings, the County emphasized that the parties were
submitting the evidence from the arbitration to PERB for adjudication, and their stipulation did
not include any “motion for res judicata or anything else.” Local 721 did not disagree with
those statements. Third, the parties agreed that if Local 721 representative Wendy Thomas
was called to testify, she would have said that she was Local 721’s lead negotiator in 2011, and
that Local 721 member Sharon Schilb told her that Schilb could no longer participate on Local
721’s bargaining team because she did not receive certain premium pay while in bargaining.6
After these stipulations were memorialized for the record, the parties each gave opening
statements and the hearing concluded.
The parties filed an opening round of briefs on March 21, 2014. They filed reply briefs
on April 25, 2014.7 At that point, the record was closed and the matter was considered
submitted for decision.
FINDINGS OF FACT
Jurisdiction
The County is a “public agency” within the meaning of MMBA section 3501,
subdivision (c), and PERB Regulation 32016, subdivision (a). Local 721 is an “exclusive
6 The County did not waive any hearsay, relevance, or other objections in this third
stipulation.
7 At hearing, there was discussion over the possibility of a status conference after the
submission of opening briefs to determine whether the record should be reopened to take
further evidence. Via email in March 2014, the parties agreed to forego the status conference,
that the record need not be reopened, and that reply briefs would be submitted.
4

representative” within the meaning of PERB Regulation 32016, subdivision (b). Local 721
represents multiple bargaining units at the County including the Supervisory Unit. It
represents around 6,000 members across all County bargaining units.
The Memorandum of Understanding
The parties have a single negotiated Memorandum of Understanding (MOU) that
applies to all bargaining units. Several iterations of that MOU were admitted into the record.
The changes alleged in the complaint occurred in 2011, when the 2010-2011 MOU was in
effect. That is the MOU discussed here.
The MOU contains a grievance procedure culminating in advisory arbitration. All prior
and subsequent versions of the MOU have a substantially similar grievance procedure.
Article 4, Section 3 of the MOU covers various forms of “premium pay,” which entitles
eligible employees for extra salary based on special assignments or duty. One type of premium
pay at issue in this case is in Section 3, subdivision (C), concerning “Shift Differentials.” In
general, shift differentials pay additional compensation to employees for shifts that would
otherwise be less desirable. The “Evening Shift” differential is described in relevant part as:
County employees . . . working their regularly scheduled shift
that ends after 6:00 p.m. and who perform work between the
hours of 3:00 p.m. and 11:30 p.m. shall be paid a night
differential of $.60 per hour for the time actually worked between
3:00 p.m. and 11:30 p.m.
The “Night Shift,” or graveyard shift differential, is described in relevant part as:
County employees . . . working their regularly scheduled shift
that ends after 11:00 p.m. and who perform work between the
hours of 11:00 p.m. and 7:30 a.m. shall be paid a night
differential of $1.20 per hour for the time actually worked
between 11:00 p.m. and 7:30 a.m.
5

(Emphasis added.) Under MOU Article 4, Section 3, subdivision (C), “[s]hift differentials do
not apply to vacation, sick leave, holiday pay, call or standby duty.” Furthermore,
“[e]mployees who work [sic] day shift between the hours of 7:00 a.m. to 6:00 p.m. shall not be
entitled for a shift differential.” The cited provisions are substantially similar to both prior and
subsequent versions of that MOU.
Article 4, Section 3, subdivision (E), of the MOU describes “Special Assignments”
differentials for nursing personnel certified for and assigned to certain specialties, such as the
Emergency Room, Operating Room, Neonatal Intensive Care Nursery, or Psychiatry. Under
Article 4, Section 3, subdivision (E)(2), employees who possess the required qualifications for
the assignment and are “working in the designated units” are eligible for the differential. All
other versions of the MOU contain substantially similar language. The 2010-2011 MOU, and
all other iterations, also provide for other types of premium pay such as “Training/Preceptor”
pay, “Bilingual” pay, “Inconvenience Differential” pay, and “Female Prisoner Search and Meal
Assignments” differential pay.
Article 31 of the MOU also describes various “Union Rights.” This case concerns
release time provisions contained in Article 31, Section 6. Under this section, Local 721 has
what the parties refer to as a “release time bank” of time, providing Local 721 with 20 minutes
of release time per represented employee per calendar year. Because of the size of Local 721’s
membership, it had around 2,000 hours in the release time bank annually. According to the
MOU, “[t]ime spend training Stewards in the grievance procedure through the providing of
release time to prepare for grievances/administrative interviews and Skelly hearings, will be
charged to this Article/Section.” All other versions of the MOU contain substantially similar
provisions.
6

The MOU also contains language allowing Local 721 representatives to take one shift
of County-paid release time per month for monthly regional union meetings. There are also
provisions for Local 721 executive board members to attend their monthly meetings and for
Local 721’s president to take full-time release. Costs for those last two types of release time
are paid by the County, but reimbursed by Local 721. All subsequent versions of the MOU
contain substantially similar provisions. None of the versions of the MOU admitted into the
record specify how release time for negotiations is handled. Nor does any iteration of the
MOU expressly discuss whether employees using release time qualify for shift differentials or
other premium pay.
The County’s Practice Regarding Claiming Shift Differentials
The MOU does not specify how shift differentials are reported to the County. In
practice, eligible employees claim shift differentials on their regular timesheets during each
two-week payroll period. On those timesheets, employees record hours worked using the
“REG” payroll code and then specify how much of that time they claim qualifies for a
differential by using payroll code, “Z.” Employee timesheets are reviewed by the employee’s
direct supervisor for accuracy. Timesheets are then separately reviewed by department
management and then again by the payroll office, which is part of the County’s Human
Resources (HR) department. The record showed that HR commonly issued payroll corrections
because of errors on timesheets or elsewhere in the process. However, the record also showed
that the payroll office had limited capacity to review all timesheets in the short time available
to complete payroll processing each pay period.
The County’s Practice Regarding Requesting Release Time
7

Union representatives request release time directly from HR. If the request is granted at
that level, HR emails the union representative’s supervisor for department-level approval, who
considers the request based on operational needs. Union representative Thomas’s June 2009
release time request is illustrative of this system in operation. She made the request to HR
which approved it and, on June 12, 2009, sent an email to Thomas’s supervisor, Sheriff’s
department captain Larry Grotefend, stating:
This above named employee[s] have been approved release time
to attend an SEIU Bargaining Task Force Session, [and] if
necessary, up to one hour of travel time to and from your work
location. This meeting is considered a SEIU Bargaining Task
Force Session opportunity for the above named employee[s];
therefore there will be no loss in pay to the employee[s]. As an
FYI, there should be NO overtime for employee[s] working day
shift and then going to the task force meetings. The approval by
Human Resources is in accordance with the MOU between the
parties.
County HR has sent department supervisors other similar email messages with slightly
different wording and with the phrase, “there will be no loss in pay to the employees,”
underscored. Once the request was approved by both HR and the Union representative’s
supervisor, the employee was permitted to use release time for the event. In or around 2009,
employees on release time were instructed to record it on their timesheets under the REG code,
the same payroll code used for actual hours worked. The payroll office has no role in tracking
release time. HR does track release time, primarily for the purposes of determining whether
the time should be deducted from the release time bank and whether the time was reimbursable
to the County.
The UNSEU Payroll Code
In late 2009 or early 2010, the County created a new payroll code, “UNSEU,” for Local
721 representatives to report release time on their timesheets. Local 721 initially opposed use
8

of the code because the purpose of it was not made clear at the time. The new code was
discussed during joint Labor-Management meetings between the parties. During those
meetings, County representatives explained that the code was intended to track release time via
the payroll system. Under the practice in place at the time, all release time was reported under
the REG code, which left the County unable to determine from looking at timesheets whether
the employee was performing the duties of his or her assignment or whether the person was
using release time. Release time was only tracked manually by HR through reviewing
individual requests.
Thomas testified that County Principal HR Analyst Sarah Franco said that employees
would continue reporting release time using the REG code, but would additionally label all
release time using the UNSEU code. Franco assured that the only purpose of the new code
was track release time to reconcile the release time bank. According to Thomas, Franco also
said that employees’ compensation would not change and that release time would not be
reflected on employees’ paychecks. An email dated February 3, 2010, from HR Services
Manager Lisa Piña said that the purpose of the codes “are only to track (mirror) the already
approved release time.” Piña also stated that “HR does not believe that these codes are subject
to meet and confer under the MMBA as they don’t affect the terms and conditions of
employment as their payroll time is already tracked as an administrative matter.” At that point,
Local 721 withdrew its opposition to the code and Local 721 representatives, including
Thomas, began using it in or around March 2010. The UNSEU code, and another payroll code
for tracking release time, were eventually incorporated into the 2010-2011 MOU, as well as
subsequent versions. This new MOU language, like that before it, also did not expressly
9

specify whether employees using release time are eligible for shift differentials or other forms
of premium pay.
Employees’ Use of Release Time and Claims for Shift Differentials in 2009-2010
Two employees—Thomas and Kevin Luke—testified regarding their use of release
time and claims for shift differentials while released from their regular duties. Vicki Pounders,
a County representative from the payroll office, also testified. Pounders said it was not the
County’s intent to pay shift differentials for employees on release time, but admitted the
County had likely done so, because under the REG code one is not able to determine whether
an employee claiming a differential was on duty or on release time. Pounders also confirmed
that an employee’s departmental supervisor and a timekeeper also must check and approve an
employee’s timesheet before it is processed by the payroll office.
1. 	Wendy Thomas
At the times relevant to this case, Thomas was employed at the County as a
communications supervisor working in the Sheriff’s department. Starting in 2008, Thomas
became active in Local 721. She was one of between 12 and 15 members of Local 721’s
negotiating team for the 2009-2010 MOU. Thomas testified that she requested and received
release time for negotiation sessions whenever the meetings occurred during her regularly
scheduled shift. Under the practice described above, HR emailed each negotiating team
member’s supervisor for department-level approval. In Thomas’s case, the email was sent to
Grotefend.
Thomas testified that she claimed a shift differential whenever she was assigned to a
qualifying shift and was never denied any differentials while using release time during the
10

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2009 negotiations.8 That is, her claim for shift differentials were paid by the County during
this period. Although the parties agreed to new release time provisions during those
negotiations, the parties did not discuss whether employees using release time qualify for shift
differentials or other premium pay. Thomas said that she believed other Local 721 negotiators
also were paid differentials during this time, but there was no evidence to what extent Local
721’s negotiators qualified for or claimed shift differentials and to what extent those
individuals notified Thomas of whether or not they were paid for such differentials. Thomas
reported only that no one informed her that they had not been paid appropriate shift
differentials. Thomas noted that she and the other bargaining team members frequently talked
about issues related to release time. Thomas also testified to claiming a shift differential for
release time for Union education and training activities, labor-management committee
meetings, and grievance representation during 2009, provided her release time corresponded to
a shift that would otherwise qualify for the differential pay. The County also paid these
claims.
Thomas was mostly scheduled for the day shift in 2010. She said, however, that she
continued claiming shift differentials for part of her shift so long as her shift included hours
described in the shift differential provisions of the MOU. For instance, she said that, although
she worked daytime hours in 2010, she was frequently assigned to work from 6:00 a.m. to
4:30 p.m. Thomas said that she claimed and was paid one and a half hours of shift differential
for the hours between 6:00 a.m. and 7:30 a.m. Thomas described a trip to Washington D.C. in
2010 for Union training for which the County granted her release time. For part of that time
8 Thomas further clarified that while on release time, if the bargaining session lasted
beyond her scheduled hours of work, she would participate in bargaining from that point on
without overtime pay, shift differential, or compensation of any kind.
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during the trip, Thomas had been scheduled for shifts that were eligible for shift differential
and for other parts she was scheduled for shifts that were not eligible for a differential.
Thomas claimed shift differentials only for those eligible shifts during her release time in
Washington D.C. and the County paid them.9
Thomas was also involved in successor MOU negotiations in 2010. She said that she
used release time to participate in those negotiations and that she claimed a shift differential
anytime she was assigned a 6:00 a.m. to 4:30 p.m. shift. Thomas said that the County paid for
her claimed shift differentials throughout 2010, even when she was using release time.
Although the parties agreed to new release time provisions during the 2010 negotiations, the
parties did not discuss whether employees qualify for shift differentials or other premium pay
while using release time.
2. 	Kevin Luke
During relevant time periods, Kevin Luke was employed by the County Department of
Public Social Services. Luke was on SEIU’s bargaining team in 2009 and 2010. During those
years, Luke worked a 3/12 shift Friday through Sunday. Luke was granted release time for
negotiations and Union education and training activities during that period, and he claimed a
shift differential if his release time coincided with the hours for which he would have been
eligible for that pay under the MOU. Luke testified that of the two or three times he claimed a
shift differential during release time, he never recalled being denied his shift differential pay or
being told anything by HR about it, but he did not closely examine his pay warrant to verify he
actually received the pay because he was used to getting paid without incident. At least once,
9 Thomas also described other Union education/training activities for which she
requested and received release time and claimed and was paid shift differentials in 2010.
12

although Luke was eligible for shift differential while on release time, he did not claim the
differential on his timecard.
The 2011 Negotiations
Thomas was Local 721’s chief negotiator in the 2011 successor MOU negotiations.
She was assigned to the graveyard shift for at least part of that year. According to Thomas,
because she was assigned to work hours between 11:00 p.m. and 7:30 a.m., the assignment
qualified for a night shift differential under the MOU. Although negotiations were typically
scheduled for daytime hours—when Thomas was not scheduled to work—she requested and
received release time for the shift before each negotiation session because she would be
otherwise unable to rest between working and participating in bargaining. Thomas also
claimed a night shift differential for release time used in 2011. In January 2011, the County
paid Thomas’s claimed shift differentials, even on days when she was using release time.
Luke also participated on the Union’s negotiating team in 2011. However, during that time
Luke was not assigned to a shift eligible for differential pay; thus, he did not claim any shift
differential during his release time for negotiations in 2011.
In February 2011, during ongoing successor MOU negotiations, the County stopped
paying shift differentials for employees using release time. According to Thomas, in a
negotiation session around that time, County Employee Relations Director Brian McArthur,
informed Local 721 that “they weren’t going to pay shift differential[s] for Union time.”
Thomas inquired about this with her supervisor, Grotefend. In an email, dated March 15,
2011, Grotefend explained that he received direction from HR that “the County’s position is
that employees off work for union release time are not eligible to receive any [shift differential
pay].” On May 25, 2011, County HR representative Cherie Pearson confirmed that Thomas’s
13

shift differentials claimed for time reported under the UNSEU code were removed. Before
March 2011, HR’s notifications to department supervisors of approved release time requests
noted that “there will be no loss in pay to the employees.” After March 2011, HR’s release
time notifications to departments were changed to state, “there will be no loss in regular
compensation.”
On March 15, 2011, the County passed a proposal across the negotiating table that
expressly listed release time among the other forms of leave ineligible for shift differentials.
Local 721 rejected that proposal. Local 721 proposed modifying the shift differential
provisions in the MOU to expressly require employees to be paid for shift differentials while
taking release time if the shifts otherwise qualified for a differential. The County rejected that
position. Both proposals were ultimately withdrawn before the parties ratified their successor
MOU.
Advisory Arbitration Decisions Regarding Premium Pay
Local 721 filed multiple grievances over union representatives who were denied
claimed premium pay while using release time. On January 23, 2012, Arbitrator Klein found
that a Licensed Vocational Nurse II, Sharon Schilb, was not entitled to a “specialty
assignment” differential while using release time for bargaining because the plain language of
the MOU in effect at the time required that Schilb be “working in the designated units”
identified as qualifying for specialty assignment differential. It is not clear when the
underlying grievance was filed. Other than the arbitrator’s written findings, no evidence about
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Schilb’s use of release time or her claims for specialty assignment differentials was admitted
into the record.10
On October 1, 2012, Arbitrator Daugherty found that the County violated an established
past practice regarding the payment of shift differentials by rejecting various claims by
Thomas in 2011. Both the Klein and the Daugherty decisions expressly declined to reach the
issue of whether the denial of differentials violated MMBA section 3505.3.
Other Evidence Regarding Release Time and Shift Differentials
Both parties cited to other documents purporting to describe the County’s history of
paying, or not paying, employees’ shift differentials while using release time. The County
asserts that an employee, Mark Grays, was not paid shift differentials for released time used in
February through May 2010, even though he was assigned to the graveyard shift at the time.
However, the entire basis for this assertion was a chart produced from a source not identified
for the record. (See County’s Exh. 28.) There was no evidence or stipulation concerning the
accuracy or authenticity of the information from the chart. Nor was it clear from the record
that Grays claimed shift differentials during the time period described in the chart or that he
was even in a bargaining unit represented by Local 721.11
Local 721 refers to documents that it claims shows that the County paid Local 721
representatives differentials while time using release time. Its asserted proof consists of
documents that were admitted into the record during the Daugherty arbitration. As Local 721
maintains, those documents show that Danny de la Pena claimed differentials on January 20,
10 As noted previously, the parties did not attempt to introduce the evidentiary record
from the Klein arbitration into the current record. Schilb did not testify at the Daugherty
arbitration.
11 This chart was not a part of the evidentiary record in the Daugherty arbitration.
15

2011, and May 17, 2011, which were days that he also used release time. Marlo Clemons’s
timesheets show that differentials were claimed on October 28, 2010, January 20, 2011, April
14, 2011, April 20, 2011, May 26, 2011, and June 7, 2011.
ISSUES
1. 	Did the County unilaterally change an existing policy of paying Local 721
representatives shift differentials and/or other forms of premium pay while using release time?
2. 	Did the County’s refusal to pay Local 721 representatives shift differentials
and/or other forms of premium pay while using release time for negotiations violate MMBA
section 3505.3?
CONCLUSIONS OF LAW
Positions of the Parties
Local 721’s position is that there is a long-standing and binding past practice of paying
Union representatives for shift differentials while using release time. It maintains that the
County intentionally changed that practice in March 2011 by ceasing to pay differentials.
Local 721 also argues that a violation should extend more than six months before the charge
was filed, under a theory of equitable tolling, to include the denial of special assignment pay
during release time granted to Schilb. 	Local 721 further advocates for a broad interpretation
of the phrase “loss of compensation or other benefits” under MMBA section 3505.3, citing to
Decision No. 2307-M, for the proposition that employees’ entitlement to equal pay and
benefits while using release time for negotiations includes premium pay and differentials.
The County’s position is that the plain language of the MOU precludes Thomas, or any
other Local 721 representative, from being paid for shift differentials while on release time. It
asserts that such representatives are not performing “work” within the meaning of the shift
16

differential provisions of the MOU when using release time. It similarly argues that because
there is no right to differentials while on release time, Local 721 representatives suffer no “loss
of compensation” under MMBA section 3505.3, by not receiving differential pay during
negotiations. Without directly disputing the evidence that Thomas received shift differentials
while using release time in the past, the County contends that Local 721 failed to establish a
binding past practice because the County never intended on paying those differentials. The
County argues that Luke’s testimony is unreliable and does not establish a past practice of
paying shift differentials during release time. Finally, the County maintains that requiring the
County to pay shift differentials for employees using release time is contrary to public policy.
Discussion
The complaint issued by PERB OGC after direction from the Board in Decision No.
2307-M alleged that, in or around March 2011, the County changed its previous policy of
paying employees full wages and benefits, including “shift differentials or special pay
premiums” while on “union released time.” (Emphasis added.) At hearing, the complaint was
amended to allege, consistent with the Board’s direction in Decision No. 2307-M, that “[t]his
conduct also independently violates Government Code section 3505.3 by paying employees
less than full compensation and benefits when meeting and conferring with representatives of
[the County] on matters within the scope of representation.” Thus, the complaint, as amended,
alleges both that the County violated its duty to bargain in good faith under MMBA sections
3505, and 3506.5, subdivision (c), and its obligation to provide employees released for
negotiations their full compensation and other benefits under MMBA section 3505.3. Because
Local 721 urges in its briefs that PERB should apply the doctrine of equitable tolling to find a
violation regarding Schilb’s denial of special assignment pay during release time for
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negotiations, and those events occurred well outside of the timeframe of the change in policy
alleged in the complaint,12 it will be treated as an unalleged violation and discussed first. Next,
whether the duty to bargain in good faith was violated by the County will be addressed,
followed by discussion of the alleged violation of MMBA section 3505.3.
I. 	Unalleged Violation
Under the unalleged violation doctrine, an Administrative Law Judge (ALJ) may
entertain unalleged independent violations only under the following circumstances: (1)
adequate notice and opportunity to defend has been provided to the respondent; (2) the conduct
is intimately related to the subject matter of the complaint and part of the same course of
conduct; (3) the unalleged violation has been fully litigated; and (4) the parties have had the
opportunity to examine and be cross-examined. The failure to meet any of these standards will
prevent the ALJ from considering unalleged conduct as violations of the particular act in
question. (City of Inglewood (2015) PERB Decision No. 2424-M, pp.14-15 citing Tahoe-
Truckee Unified School District (1988) PERB Decision No. 668.)
The above standards are not met here, especially with respect elements three and four,
regarding the unalleged violation having been fully litigated and the opportunity to examine
and cross-examine witnesses having been afforded the parties. The only evidence in the
current record regarding Schilb’s alleged denial of special assignment pay during release time
derives from Arbitrator Klein’s advisory opinion and Local 721’s assertion that if Thomas had
been called to testify in the instant hearing, Thomas would have said that Schilb told Thomas
that Schilb could no longer participate in negotiations because Schilb was not receiving
12 The only indication in the record regarding when this alleged violation occurred was
in Arbitrator Klein’s advisory arbitration decision. The arbitrator’s statement of facts noted
that the alleged denial by the County of special assignment premium pay for Schilb occurred in
2010, well before the change alleged in the complaint occurring in March 2011.
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premium pay from the County. First, Local 721’s offer of proof of Thomas’s testimony does
not satisfy the ability to examine and cross-examine a witness, and the County specifically did
not waive any objections to the offer of proof. Second, as noted previously, the evidentiary
record from the Klein arbitration was not introduced here; thus, there is no underlying witness
testimony from that proceeding to consider. For these reasons, the parties were not given any
opportunity in the instant proceeding to examine and cross-examine pertinent witnesses over
the unalleged violation.
The parties also entered no specific stipulation regarding the evidentiary value to be
afforded Arbitrator Klein’s findings. As such, that document consists entirely of
uncorroborated hearsay, which cannot form the basis of a factual finding in this case.13 (PERB
Regulation 32176; Palo Verde Unified School District (2013) PERB Decision No. 2337.) A
single, hearsay document without reliable testimony or stipulation of facts to support it does
not meet the standard that the unalleged issue must be fully litigated. Accordingly, the issue of
Schilb’s alleged denial of special assignment pay during her release time for negotiations will
not be considered and it is therefore unnecessary to analyze whether the doctrine of equitable
tolling would render those allegations timely.
II. 	Unilateral Change
A four-part test is applied by the Board to determine an unlawful unilateral change:
To prove up 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; (4) the action had a generalized effect or continuing
impact on terms and conditions of employment. (Walnut Valley
13 Notably, even if Thomas had testified regarding Schilb’s statement to her, that also
would have been hearsay without any apparent exception to the hearsay rule.
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Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196
(Grant).)
(County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, citing Fairfield-Suisun
Unified School District (2012) PERB Decision No. 2262 (Fairfield-Suisun).) An employer’s
unlawful failure and refusal to negotiate concurrently violates an exclusive representative’s
right to represent unit members in their employment relations and interferes with employees’
exercise of representational rights. (San Francisco Community College District (1979) PERB
Decision No. 105.)14
The nature of existing policy is a question of fact to be determined from an examination
of the record as a whole, and it can be established through negotiated contract terms. (Oakland
Unified School District (1983) PERB Decision No. 367 (Oakland).) It is well-settled that
when evaluating an allegation of a departure from existing policies, “the plain language of a
contract or rule will be accepted where it is clear and unambiguous.” (Westlands Water
District (2004) PERB Decision No. 1622-M, p. 7; citations omitted.) However, “where a
contract is silent or ambiguous as to a policy, it may be ascertained by examining past practice
or bargaining history.” (Oakland, supra, PERB Decision No. 367, p. 22; citation omitted.) In
determining whether an action has a continuing impact on terms and conditions of employment
of bargaining unit employees, PERB considers whether the employer believes or acts as if it
has a right to take the action without bargaining. (State of California (Department of
Corrections and Rehabilitation, Ventura Youth Correctional Facility) (2010) PERB Decision
No. 2131-S; County of Riverside (2003) PERB Decision No. 1577-M.)
14 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
20

The final three elements of the test for unilateral change quoted above from Fairfield-
Suisun are not in serious dispute in this case and are satisfied for the following reasons. There
is no question that the policy of paying shift differential pay during release time is a part of
employees’ total compensation, which is within the scope of representation. The record
establishes that the County took action to eliminate shift differential pay while employees were
released from duty for Union activities without providing Local 721 prior notice and
opportunity to bargain. The County maintains that it acted within its rights to eliminate this
pay because it never intended to pay it during release time and because the MOU requires such
payments only when employees are performing “work” associated with their customary duties.
Thus, the only element of the test for unlawful unilateral change that is at issue here is whether
there was a change to existing policy. In making that determination, some conclusions
regarding undisputed facts and law reached by the Board in Decision No. 2307-M are
controlling.
A. Decision No. 2307-M
In Decision No. 2307-M, the Board fully considered, and rejected, the County’s
argument that MOU provisions regarding shift differentials clearly and unambiguously dictate
that employees must be performing the actual duties of their position in order to be eligible for
shift differential pay. The Board stated:
we reject the County’s argument that the MOU “clearly provides
that shift differentials exclusively apply” only to employees who
are “actually working.” For support, the County relies on the
section of the MOU governing the applicability of the shift
differentials, which provides that “[s]hift differentials do not
apply to vacation, sick leave, holiday pay, call or standby duty.”
The County appears to equate union released time with being
absent from work, and concludes that in either case, employees
are not “actually working” and therefore are not eligible for shift
differentials or special pay premiums. There are several
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problems with this argument. First, presumably there was
nothing to prevent the parties from including union released time
in the finite list of exclusions, but as written, union released time
is not explicitly exempted from the application of shift
differentials.[15] Second, union released time is of a categorically
different nature of paid time than vacation, sick leave, holiday
pay, call or standby duty. Employees on union released time are
physically at the worksite, but have been released from their
regularly assigned duties by the County for a designated period of
time. They are not home, on vacation or otherwise free to attend
to personal or other non-work related business. Therefore, union
released time is not comparable to vacation, sick leave, holiday
pay, call or standby duty. While true that employees on union
released time are not performing their regular duties, they are
participating in union activities related to the workplace.
The County also points to language in the MOU setting forth the
various types of shift differentials in arguing that shift
differentials only apply to employees working their “regularly
scheduled shift.” While regularly assigned duties are necessarily
performed during regularly scheduled shifts, the County’s
conflation of the two concepts is rejected. Notwithstanding any
shift changes necessary to accommodate the scheduling of
collective bargaining sessions, employees on union released time
are excused from their regularly assigned duties. By agreeing to
the phrase “regularly assigned shift,” we discern no intent by the
parties deny employees the shift differentials or special pay
premiums they would have received but for their participation in
collective bargaining. At a minimum, this phrase, as it applies to
the determination of eligibility for shift differentials or special
pay premiums, is sufficiently ambiguous, and therefore warrants
an examination of SEIU’s past practice claim.
(Id. at pp. 22-23; italics and bracketed text in original, underscore added.)
The Board made clear that the parties’ MOU provisions regarding shift differential
eligibility do not clearly and unambiguously set established policy regarding paying shift
differentials while employees are using release time for negotiations or other union activities,
15 The Board’s statement here refers to the canon of construction—expressio unius est
exclusion alterius—to express or include one thing implies the exclusion of the other, or the
alternative. (Black’s Law Dict. (2d pocket ed. 2001) p. 265.)
22

________________________
and therefore the parties’ past practice regarding this issue must be examined.16 The Board
also conclusively determined that release time is paid time off from regular duties, which is of
a different nature and character than paid time off for vacation, sick leave, holidays, or stand-
by status. The County continues to argue that the MOU is controlling over established policy
here despite the Board’s contrary analysis and conclusions regarding the same MOU language.
The County also argues that the zipper clause of the MOU, which notes that the contract
represents the parties’ full and complete understanding of unit employment conditions,
prevents the examination of past practice, citing Temple City Unified School District (1989)
PERB Decision No. 782 (Temple City). The County misconstrues Board precedent over zipper
clauses. What that case actually stands for is that:
a “zipper clause,”…has the effect of allowing either party to
avoid (during the term of the agreement) further negotiations on
matters established by either contract or past practice. (Los Rios
Community College District (1988) PERB Decision No. 684, p.
13.) The clause specifically states that it does not constitute a
waiver of CTA’s right to bargain a change in past practice,
though this would be the case even in the absence of such
language. (See Los Rios Community College District, supra, p.
14; Los Angeles Community College District (1982) PERB
Decision No. 252.)
(Temple City, supra, PERB Decision No. 782, pp. 6-7; footnote omitted, underscore added.)
Thus, Temple City instructs that a zipper clause prevents the demand for further negotiations,
during the life of the agreement, over contractual terms or a past practice. It expressly does not
-
hold, as the County urges, that past practices may not be considered as established policies in
16 The Board also concluded that because the MOU is sufficiently ambiguous regarding
the policy of paying shift differentials or other premium pay during release time, that the
precept of Marysville Joint Unified School District (1983) PERB Decision No. 314
(Marysville), that unambiguous contract language controls over contrary past practices, is
inapplicable to this case.
23

________________________
the presence of contractual terms, or that a union waives its right to bargain over a unilateral
change in past practice by the inclusion of a zipper clause in a contract.17
Furthermore, nothing in the now fully-developed record indicates that the operative
language in the MOU was disputed by the parties at the time of the Board’s analysis of it. It is
also the same language that was introduced into the current record. The Board’s analysis of
law applied to undisputed facts should not be disturbed. Essentially, the Board rejected the
County’s defense to unilateral change that it acted in accord with clear and unambiguous
contract terms.18 Accordingly, the Board’s finding that the MOU language here is sufficiently
ambiguous to make examination of past practice necessary is the law of the case. (See, e.g.,
Jurupa Unified School District (2015) PERB Decision No. 2458, p. 15; Salinas Valley
Memorial Healthcare System (2015) PERB Decision No. 2433-M, pp. 31-32.) The County’s
arguments regarding the MOU clearly and unambiguously setting established policy are
accordingly rejected.
The Board recognized in Decision No. 2307-M that PERB has historically applied
several different, but similar, tests to determine past practice:
The Board has stated that it must be unequivocal, clearly
enunciated and acted upon, and readily ascertainable over a
17 The County quoted footnote 5 on page 13 of the Board’s decision in Temple City,
stating in part: “the zipper clause in the parties’ agreement would have allowed the District to
reject, for the term of the agreement, a demand to bargain a change in past practice.” It is
unclear from the County’s brief why this quoted passage would support the County’s position.
Being relieved from the duty to bargain over a proposed change in established terms during the
life of a contract is not the same as a license for the employer to make unilateral changes to
established past practices.
18 A charge may be dismissed based on an affirmative defense that involves a question
of law or the application of law to undisputed facts which have been properly alleged by the
respondent or admitted by the charging party. 	(Long Beach Community College District
(2003) PERB Decision No. 1568, p. 15; Metropolitan Water District of Southern California
(2009) PERB Decision No. 2055-M, p. 4, fn. 4.)
24

period of time as a fixed and established practice accepted by
both parties. (County of Placer (2004) PERB Decision No. 1630-
M, citing Hacienda La Puente Unified School District (1997)
PERB Decision No. 1186; see also Riverside Sheriffs’ Assn. v.
County of Riverside (2003) 106 Cal.App.4th 1285, 1291.) In
addition, PERB has described an enforceable past practice as one
that is “regular and consistent” or “historic and accepted.”
(Hacienda La Puente Unified School District, supra, PERB
Decision No. 1186.) PERB has also held that a past practice is
established through a course of conduct or as a way of doing
things over an extended period of time. (Pajaro Valley Unified
School District (1978) PERB Decision No. 51 (Pajaro Valley);
Cajon Valley Union School District (1995) PERB Decision
No. 1085.)
(Id. at p. 20.) The Board ultimately applied the test from Pajaro Valley—that a past practice
may be established through a course of conduct or as a way of doing things over an extended
period of time—to the facts of this matter. (Decision No. 2307-M, pp. 21-22.) Thus, the test
from Pajaro Valley is appropriate to apply here to determine whether Local 721 has met its
burden of showing the County’s unilateral departure from an established practice. Responding
to the County’s assertion that the a binding past practice cannot be shown because any
payment of shift differential during release time was either an isolated occurrence or
inadvertent oversight, the Board noted that such an assertion represented a material factual
dispute that needed to be resolved at hearing. (Decision No. 2307-M, p. 25.)
25

B. Analysis of Past Practice in This Case
To begin, although the complaint alleges a change in the payment of shift differentials
“or special pay premiums” while employees used release time, the only competent evidence in
the record is over the payment of shift differentials. Only shift differentials were at issue in the
Daugherty arbitration, the record of which the parties stipulated should be treated as if it were
produced during the course of the current proceedings. As discussed previously regarding the
unalleged violation, only uncorroborated hearsay evidence exists regarding alleged payment of
special assignment differential to Schilb while she was on release time, which is insufficient to
support a factual finding. (PERB Regulation 32176; Palo Verde Unified School District,
supra, PERB Decision No. 2337.) Thus, the analysis here is limited to the issue of shift
differentials during release time. The allegation that the County unilaterally changed its policy
of paying “special pay premiums” to employees while on release time is hereby dismissed for
lack of evidence.
Thomas and Luke were the only employees who testified regarding claiming and
receiving shift differential pay during release time. Thomas testified without contradiction that
whenever she was assigned to a shift that qualified for a differential, she claimed and was paid
the shift differential during her release time for formal contract negotiations throughout 2009
and 2010, and also during her release time for a variety of Union education and training
activities during the same time period, including an extended trip to Washington D.C. During
MOU negotiations in 2011, up until March of that year, Thomas claimed and was paid a shift
differential during her release time, even though none of the hours of bargaining overlapped
with her graveyard shift. Luke testified that he claimed shift differential two or three times in
2009 and 2010, when his release time fell within hours that he was scheduled to work. One
26

time, although he was eligible for a shift differential because of his assigned shift, he did not
claim it on his timecard. Although he did not examine his paycheck carefully to confirm that
he was actually paid the shift differential for those periods, he was not informed by the County
that his claims were denied. Luke was used to getting paid without incident.
Regarding Thomas, the County does not directly dispute that she was paid shift
differentials during release time. Instead, it contends that any payments of shift differentials
during such time were inadvertent and unintended by the County. Once it realized the mistake,
it ceased such payments. Thus, it was not a practice that was “enunciated” and “accepted” by
the County as a “fixed and established practice.” (County’s opening brief, p. 21.) Regarding
Luke, the County argues that his testimony was unreliable because he could not specifically
recall if he was actually paid for the shift differentials he claimed, and because he was eligible
for a shift differential at one point but was not paid the differential, there is no established
practice that the County regularly paid shift differentials to employees on release time. None
of these arguments are persuasive.
As to the argument that the shift differential payments were “unintentional,” it is not
supported by facts in the record for at least two reasons. First, although the UNSEU code,
which allowed the County to more easily track the use of release time, was implemented in late
2009 or early 2010, payments of shift differentials during release time continued for more than
a year after UNSEU was put into practice. If these shift differential payments had really been
inadvertent, especially considering that the County was concerned enough about release time
issues to create a payroll tracking code specific to that issue, it seems that the practice would
have been discovered and ended sometime shortly after the initiation of the UNSEU code;
certainly earlier than March 2011. There is also no evidence in the record that the County tried
27

________________________
to recoup the supposed inadvertent payments from employees who received them. This also
casts doubt on the premise that the County believed that shift differential payments during
release time were mistakenly or improperly paid.
Second, the record shows that department management must first approve HR’s
notification that the Union has requested an employee be released from duty to participate in
negotiations or other Union activities, and then after-the-fact must approve the employee’s
timecard which includes a separate Z code for shift differential on particular days and at
particular times. Since department management was necessarily aware of when it had
approved release time for the employee, and then could see the claim for shift differential on
the employee’s timecard during the particular time of release, it stands to reason that
department management was aware that shift differentials were being claimed during release
time, and yet still approved the time records for payment. Even if the payroll office was
unaware of the practice during the time that release time was coded as REG, the department,
having pre-approved specific release times, cannot claim to be similarly unaware. As the
Board stated:
[G]iven the County’s authority to approve leave requests and its
control over the administrative payroll system, the County’s
argument that its wage payments to employees were not made
knowingly is unpersuasive. The County had the means and the
opportunity, not to mention the responsibility as a public
employer, to be cognizant at all times of how it pays its
employees and what it pays its employees for.
(Decision No. 2307-M, p. 28.) Thus, the County cannot defeat a finding of past practice here
by claiming it was unaware of these payments.19
19 The fact that department management was necessarily aware of both when employees
were on release time and that they claimed shift differentials during that time distinguishes
these facts from those in Omnitrans (2008) PERB Decision No. 1996-M. In that case, after
28

________________________
Regarding Luke, his admission that he did not follow up on whether or not his pay
warrants actually showed payment of shift differentials when he claimed them during his
release time does not make his testimony unreliable. He credibly testified that he claimed shift
differentials while released from regular duty to participate in negotiations or Union
education/trainings several times and that he was never informed by the County of any
problem with his timecards. He also testified credibly that he did not make a habit of checking
his pay warrants because he was used to getting paid without problems. Given that the County
always paid Thomas’s claims for shift differentials during her release time taken before March
2011, it is more likely than not that Luke was similarly paid for his claims. Likewise, it can be
surmised from the approved payroll records of employees de la Pena and Clemons that they
were also paid their claimed differentials during release time.20
Moreover, although the County argues that Luke was eligible at least once for a shift
differential but the County did not pay it, this does not show that the County’s practice of
paying it when it was claimed was not regular and consistent. For the instance in question,
Luke did not actually claim the differential on his timecard. To establish a past practice here,
what is relevant are actions by the County when presented with a claim for shift differential
discovering from a newspaper article that Omnitrans employees on release time were
organizing employees of a different employer during that same time, the Board held that
Omnitrans management did not “knowingly” approve release time for that purpose.
20 The payroll records were signed by the employees and department supervisors.
Although these employees did not testify, payroll records of this kind are typically admissible
under an official records exception to the hearsay rule. (Evid. Code, § 1280; Bellflower
Unified School District (2014) PERB Decision No. 2385, pp. 9-10.) The same conclusion
cannot be reached regarding the uncorroborated chart introduced by the County regarding
employee Grays. The record simply does not reflect any information about how the chart was
compiled or who compiled it. Again, uncorroborated hearsay cannot form the basis of a
factual finding. (PERB Regulation 32176; Palo Verde Unified School District, supra, PERB
Decision No. 2337.)
29

during release time, not whether employees always remembered to submit the claim for it. The
evidence is sufficient to demonstrate that when an employee claimed a shift differential during
release time for negotiations and other Union activities before March 2011, the County
routinely approved and paid those claims. A past practice is established.
The record amply shows that a change in the established practice occurred, as the
County notified Local 721 bargaining team members at a bargaining session in 2011 that the
County would cease paying shift differentials during release time. The County then ceased
such payments, and the notification language from HR to department management for release
time approval changed from “there will be no loss in pay to the employees,” to “there will be
no loss in regular compensation.” (Emphasis added.) As it has been shown that a change to
established policy was made by the County, and all other elements of the test for unilateral
change are also shown, Local 721 has met its burden of demonstrating a prima facie case. The
County’s defense that it was enforcing the terms of a written MOU is not demonstrated under
these facts. (See e.g., Regents of the University of California (2010) PERB Decision
No. 2109-H; Marysville, supra, PERB Decision No. 314.) Thus, the County’s unilateral action
violated the MMBA and PERB Regulation and was an unfair practice.
III. 	Statutory Violation of MMBA Section 3505.3
The MMBA guarantees employee representatives of an employee organization the right
to release time for formal negotiations over employment conditions with the public agency
employer as follows:
Public agencies shall allow reasonable number of public agency
employee representatives of recognized employee organizations
reasonable time off without loss of compensation or other
benefits when formally meeting and conferring with
representatives of the public agency on matters within the scope
of representation.
30

(MMBA, § 3505.3.) The Board has long held that release time is both a mandatory subject of
bargaining and a statutory right. (San Mateo County Community College District (1993)
PERB Decision No. 1030.) The specific statutory guarantees quoted above apply only to
formal negotiations, not to other types of union activities. (Decision No. 2307-M, p. 33.)
Thus, for release time issues regarding formal negotiations other than what is specifically
addressed by the statute, or for matters regarding release time for other types of union
activities, there is a specific duty to bargain over those issues. (Anaheim Union High School
District (1981) PERB Decision No. 177.) An employer may not seek reimbursement from an
employee organization for employee release time costs related to formal negotiations, because
employees are the intended beneficiaries of the statutory right to be released from duty to
bargain with the employer without loss of compensation. (Ibid.)
The Board’s precedential decision in Decision No. 2307-M set forth a binding
interpretation of MMBA section 3505.3 that is the law of the case. The Board stated:
[M]MBA section 3505.3 requires public agencies to allow
reasonable time off for formal negotiations “without loss of
compensation or other benefits.” In construing the meaning of
this phrase, we are guided by the fundamental rules of statutory
construction. A court should ascertain the intent of the
Legislature to effectuate the purpose of the law; and if the
language of the statute is clear and unambiguous, then the intent
of the Legislature is reflected in the plain meaning of the statute.
(Reid v. Google (2010) 50 Cal.4th 512, 527.)
[¶…¶]
By reducing employees’ pay from full wages to base wages when
they are excused from their regular duties to engage in formal
negotiations, a loss in compensation or other benefits occurs. The
way in which employees’ time is compensated affects not only
the computation of take-home pay, but often such benefits as
retirement credits and seniority. The County argues that no loss
occurred because employees engaged in formal negotiations of
31

still are entitled to wages of some kind, i.e., their base wages.
“Loss” within the meaning of the statutory directive, however,
must be measured by an objective standard, rather than left to the
discretion of one party to decide.
[¶…¶]
We construe “loss” within the meaning of the MMBA section
3505.3 as measured against the amount of pay the employee
would have earned if the employee had not been “formally
meeting and conferring with representatives of the public agency
on matters within the scope of representation. To construe it
otherwise would exact a penalty on employees for engaging in in
formal negotiations, and create a chilling effect on the exercise of
protected employee rights, i.e., participation in organizational
activities.
(Id. at pp. 31-33; footnotes omitted; emphasis added.) The Board also clarified that its holding
over the determination of loss does not turn on when negotiations were scheduled to occur;
thus, if the employee would have worked a shift eligible for shift differentials if he or she had
not participated in bargaining, then the employee is entitled to full compensation, including the
differential, during that release time. (Id. at p. 32, fn. 19.)
The County takes issue with the Board’s statutory interpretation of MMBA section
3505.3, arguing, among other things, that it is against public policy because it penalizes tax
payers who must ultimately foot the bill for what amounts to a gift of public funds to an
employee who did not work a shift qualifying for bonus pay, and who are also obligated to pay
bonus pay to another employee who must cover the undesirable shift vacated by the employee
on release time. The County also argues that the Board’s decision was made without the
benefit of full legal briefing on the subject and is contrary to a federal trial court’s
interpretation of MMBA section 3505.3, which it asserts is binding upon PERB.
Notwithstanding that the Board’s interpretation of the statute is the law of the case and
may not be disturbed, I address briefly these two arguments. Regarding the latter argument,
32

the statement of the federal trial court quoted by the County in its brief is that MMBA section
3505.3 requires: “only that employee union representatives be compensated for time spent in
negotiations during their regularly scheduled work hours.” (Local 1605 Amalgamated Transit
Union, AFL-CIO v. Central Contra Costa County Transit Auth. (N.D. Cal. 1999) 73 F.Supp.2d
1117, 1124; emphasis added.) However, later in the decision, after finding a violation of
MMBA section 3505, the court clarified, “[t]he court therefore does not consider Plaintiff’s
other claims for compensation under §§ 3506 and 3505.3 of the MMBA.” (Id. at p. 1126;
emphasis added.) The court then dismissed as moot claims and cross-claims arising under
MMBA section 3505.3. (Ibid.)
As a threshold matter, PERB has exclusive initial jurisdiction to determine violations of
the MMBA. (MMBA, § 3509, subd. (b).) Although PERB “shall apply and interpret unfair
labor practices consistent with existing judicial interpretations of this chapter[,]” that caveat
does not apply to the cited federal trial court decision here. (Ibid.) Setting aside the obvious
fact that the court’s statement regarding MMBA section 3505.3 was dicta, as the court
expressly did not reach claims under that section of the statute in its decision, PERB is simply
not bound by interpretations of the MMBA issued by a trial court in any event.
Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are
required to follow the decisions of courts exercising superior jurisdiction. Administrative
agencies exercising inferior jurisdiction must accept settled law as declared by courts of
superior jurisdiction; it is not their function to attempt to overrule decisions of a higher court.
(State of California (Department of Personnel Administration) (2008) PERB Decision
No. 1978-S, p. 9, citing Auto Equity Sales, Inc. v. Superior Court of Santa Clara County
(1962) 57 Cal.2d 450, 455.) However, federal courts are not controlling on matters of state
33

law. (9 Witkin, Cal. Proc. 5th (2008) Appeal, § 507, p. 570.) The decisions of the lower
federal courts are entitled to the same weight given to the state courts from sister jurisdictions.
To the extent they are persuasive, they may be followed. (Ibid; emphasis added.) Moreover,
trial court decisions have no precedential value and are not citable authority. (Eisenberg et al.,
Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 14.194.3, p. 14-81,
citing Bolanos v. Super. Ct. (2008) 169 Cal.App.4th 744, 761 [request that reviewing court
judicially notice a minute order issued by a trial court was improper].) The doctrine of stare
decisis applies only to decisions of appellate courts and trial courts make no binding
precedents.” (Fenske v. Board of Administration (1980) 103 Cal.App.3d 590, 595-596.) Thus,
the federal trial court’s passing comment regarding MMBA section 3505.3 cannot disturb
PERB’s interpretation of the statute.
Finally, it is not a “gift” of public funds to pay employees their full compensation and
other benefits for time that they are released from regular duties to participate in negotiations.
Rather, it is a statutory obligation imposed on the public agency employer by the Legislature.
As the Board pointed out in Decision No. 2307-M, employees who are negotiating over
employment conditions with the employer are not simply off work, enjoying their own free
time. Rather, they are participating in a statutorily protected process, one from which the
employer also derives a benefit in the form of improved labor relations. (See MMBA, § 3500,
subd. (a): “It is also the purpose of this chapter to promote the improvement of personnel
management and employer-employee relations”.)
If “but for” the bargaining obligation an employee would have been able to work a shift
that entitled him or her to a shift differential, then there is no other logical way to view “full
compensation” in such a circumstance than the precise wage that the employee would have
34

________________________
earned if not released from regular duties for negotiations. Otherwise, participation in
negotiations would result in the employee losing wages, which amounts to a penalty against
the employee for exercising a statutory right. (Decision No. 2307-M, p. 33.)
To be clear, this requirement for “full compensation” is only statutorily imposed for
release time for formal meeting and conferring over matters within the scope of representation.
The County is free to address its concerns regarding payment of shift differentials during
release time for other types of union activities during future negotiations with Local 721 for a
successor MOU at the appropriate time.21 As it has been shown that the County failed to pay
employees released from duty to participate in negotiations their full compensation, including
any applicable shift differentials, this conduct violated MMBA section 3505.3, and
concurrently MMBA section 3506.5, subdivision (b), as it also denied Local 721 the rights
guaranteed to it by the MMBA. (Decision No. 2307-M, p. 33, fn. 20.)
REMEDY
It has been found that the County violated MMBA sections 3503, 3505, 3505.3, 3506,
and 3506.5, subdivisions (a), (b), and (c), and therefore committed unfair practices under
MMBA section 3509, subdivision (b), and PERB Regulation 32603, subdivisions (a), (b), (c),
and (g). MMBA section 3509, subdivision (b), authorizes PERB to order “the appropriate
remedy necessary to effectuate the purposes of this chapter.” (Omnitrans (2010) PERB
Decision No. 2143-M.) This includes an order to cease and desist from conduct that violates
the MMBA. (City of Torrance (2008) PERB Decision No. 1971-M.)
21 This does not mean, however, that a unilateral cessation of payment of shift
differentials during release time for union activities other than for formal negotiations would
be lawful under the MMBA. (See infra, § II.)
35

PERB’s remedial authority also includes the power to order an offending party to take
affirmative actions designed to effectuate the purposes of the MMBA. (City of Torrance,
supra, PERB Decision No. 1971-M.) In cases of unilateral action, PERB generally orders
employers to rescind the policy change and restore the status quo as it existed before the
violation. (Lucia Mar Unified School District (2001) PERB Decision No. 1440, proposed
decision, p. 56.) That is appropriate here. In addition, the traditional make-whole remedy in a
unilateral change case is ordered. Thus, the County is ordered to pay shift differential pay for
any employee who was on approved release time after March 1, 2011, either for formal
negotiations with County representatives, or for other Union activities, and who would have
qualified to claim a shift differential for their regular shifts that were missed because of the
release time. Any financial losses should be augmented with interest at a rate of 7 percent per
annum. (Journey Charter School (2009) PERB Decision No. 1945a.)
It is also appropriate to order the County to post a notice incorporating the terms of this
order at all locations where notices to unit employees are usually posted. Posting of such a
notice, signed by an authorized representative of the County, provides employees with notice
that the County acted in an unlawful manner, must cease and desist from its illegal action, and
will comply with the order. 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 County to communicate with its employees in the bargaining unit represented by
Local 721. (City of Sacramento (2013) PERB Decision No. 2351-M.) It effectuates the
purposes of the MMBA to inform employees of the resolution of this controversy. (Omnitrans,
supra, PERB Decision No. 2143-M.)
36

PROPOSED ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, it has been found that the County of Riverside (County) violated the Meyers-Milias-
Brown Act (MMBA or Act) (Government Code, § 3500 et seq.). The County violated MMBA
sections 3503, 3505, 3505.3, 3506, and 3506.5, subdivisions (a), (b), and (c), and therefore
committed unfair practices under MMBA section 3509, subdivision (b), and Public
Employment Relations Board (PERB or Board) Regulation 32603, subdivisions (a), (b), (c),
when it: (1) unilaterally ceased paying employees’ qualified claims for shift differentials
during approved release time for negotiations or other union activities; and (2) failed to pay
employees their full compensation or other benefits during approved release time for formal
meeting and conferring with representatives of the County over matters within the scope of
representation.
Under MMBA section 3509, subdivision (b), it is hereby ORDERED that the County,
its governing body, and its representatives shall:
A. CEASE AND DESIST FROM:
1. 	Failing and refusing to provide notice and opportunity to bargain to Service
Employees International Union, Local 721 (Local 721) over decisions to cease paying
employees’ qualified claims for shift differentials during approved release time for
negotiations or other union activities.
2. 	Failing to pay employees on approved release time for formal meeting and
conferring with representatives of the County over matters within the scope of representation
their full compensation or other benefits.
3. 	Interfering with Local 721’s right to represent bargaining unit members in their
37

employment relations with the County.
4. 	Interfering with bargaining unit members’ right to participate in the activities of an
employee organization.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind the policy change regarding payment of employees’ qualified claims for
shift differentials during approved release time for negotiations or other union activities, and
revert to the established practice in place before March 1, 2011, of paying those claims.
2. 	Make-whole unit employees for financial losses suffered as a result of the
County’s unlawful action. Any employees who, but for their participation in negotiations or
other union activities while on approved release time, would have qualified for a shift
differential, have suffered a financial loss. Any employees on approved release time for
formal meeting and conferring with representatives of the County over matters within the
scope of representation who were not paid their full compensation or other benefits have
suffered a financial loss. Any financial losses should be augmented with interest at a rate of 7
percent per annum.
3. 	Within ten (10) workdays of the service of a final decision in this matter, post at all
work locations in the County where notices to employees customarily are posted, copies of the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent of
the County, indicating that the County will comply with the terms of this Order. Such posting
shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that this Notice is not reduced in size, altered, defaced, or covered with any
other material. In addition to physical posting of paper notices, the Notice shall be posted by
38

electronic message, intranet, internet site, and other electronic means customarily used by the
County to communicate with its employees in the bargaining unit represented by Local 721.
4. 	Written notification of the actions taken to comply with this Order shall be made to
the General Counsel of the Public Employment Relations Board (PERB or Board), or to the
General Counsel’s designee. The County 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 Local 721.
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed Decision
and Order shall become final unless a party files a statement of exceptions with the Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision.
The Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd.
(a).) A document is also considered “filed” when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet or received by electronic
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mail before the close of business, which meets the requirements of PERB Regulation 32135(d),
provided the filing party also places the original, together with the required number of copies and
proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see
also Cal. Code Regs., tit. 8, §§ 32090, 32091 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
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