East Bay Regional Park District (PERB 2969M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES
COUNCIL 57, LOCAL 2428,
Charging Party,
v.
EAST BAY REGIONAL PARK DISTRICT,
Respondent.
Case No. SF-CE-1993-M
PERB Decision No. 2969-M
June 25, 2025
Appearances: Beeson, Tayer & Bodine by Andrew H. Baker, Attorney, for American
Federation of State, County & Municipal Employees Council 57, Local 2428; Lynne
Bourgault, General Counsel, and Allison M. Dibley, Assistant General Counsel, for
East Bay Regional Park District.
Before Krantz, Paulson, and Krausse, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by Respondent East Bay Regional Park District
to a proposed decision of an administrative law judge (ALJ). The complaint alleged
that the District violated the Meyers-Milias-Brown Act (MMBA) when it: (1) unilaterally
changed its telework policy without bargaining in good faith to impasse or agreement
with Charging Party American Federation of State, County and Municipal Employees
Council 57, Local 2428 (AFSCME); (2) engaged in unlawful direct dealing by
bypassing AFSCME and requiring unit employees to complete new telework
agreements or else work fully in-person; (3) interfered with protected rights by muting

2
the microphone of AFSCME’s lead negotiator during the public comment portion of a
District Board of Directors meeting; and (4) derivatively interfered with protected rights
by the direct dealing and unilateral change violations.1 After a formal hearing, the ALJ
found in favor of AFSCME on all four counts.
In its exceptions, the District contests some of the ALJ’s factual findings and all
legal conclusions. The District also excepts to the proposed make-whole remedy.2
Having independently reviewed the entire record in this matter, we find the proposed
decision well-reasoned and in accordance with applicable law. We therefore affirm the
proposed decision, as supplemented by the discussion below.
FACTUAL AND PROCEDURAL BACKGROUND
The District is a “public agency” within the meaning of section 3501(c) and
PERB Regulation 32016(a).3 During the relevant time period, Sabrina Landreth was
the General Manager (as of March 2021); Debra Auker was the Assistant General
Manager and Chief Financial Officer; Jim O’Connor was the Assistant General
1 The MMBA is codified at Government Code section 3500 et seq.
Undesignated statutory references are to the Government Code.
2 The District requests oral argument. We typically deny such requests when
the record before us is adequate, the parties availed themselves of the opportunity to
brief all pertinent issues, and the briefs are sufficiently clear as to make oral argument
unnecessary. (City and County of San Francisco (2020) PERB Decision No. 2691-M,
p. 3, fn. 4 (CCSF).) Applying this standard here, we deny the District’s request for oral
argument.
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

3
Manager of Operations; Janelle Rodrigues was the Chief of Workforce Development
(as of December 2021); and Burke Dunphy was the District’s chief negotiator.
AFSCME is a “recognized employee organization” within the meaning of section
3501(b) and an “exclusive representative” within the meaning of PERB Regulation
32016(b). Rod Palmquist was AFSCME’s chief negotiator.
Telecommute Letter of Agreement
The District and AFSCME negotiated two memoranda of understanding (MOUs)
during the relevant period: one with a term of April 1, 2017, through March 31, 2021,
and one with a term of April 1, 2021, through March 31, 2024.4 Both MOUs are silent
on the subject of telecommuting. Prior to the start of the COVID-19 pandemic in 2020,
the District did not have a telecommuting policy and all employees were expected to
report to their assigned worksites in person.
The parties engaged in successor negotiations for the 2021-2024 MOU from
April to September 2021, and in the interim, they extended the prior MOU multiple
times. At the time of negotiations, AFSCME represented approximately 520
employees in the District, 200 of whom had been working 100 percent remotely since
the start of the pandemic in March 2020. On July 15, 2021, the parties executed a
“package tentative agreement” that included a Letter of Agreement regarding the
return to in-person/indoor work (Return-to-Work LOA), and a Letter of Agreement
4 Only the 2017-2021 MOU is in evidence. The parties stipulated that revisions
made as part of the 2021-2024 MOU do not affect the issues in this case.

4
regarding telecommuting (Telecommute LOA). AFSCME members ratified the
package agreement on July 28, 2021.5
The Return-to-Work LOA outlined procedural steps for a return to work, i.e., unit
employees would have a certain amount of time to submit requests for telecommute
agreements, the District would respond to those requests by a certain date, and
employees without approved telecommute agreements would return to work full-time
in-person starting on a certain date.
The Telecommute LOA provided the terms and conditions for telecommute
requests, agreements, and approval eligibility. It did not contain any restrictions or
requirements regarding the number of in-office workdays versus remote workdays,
and allowed managers and supervisors to approve telecommute requests with
approval from “Division management.” It also stated the Telecommute LOA was a
“pilot telecommute program,” and included the following language:
“The agreement shall be a pilot and will expire on
August 30, 2022; however, this Letter of Agreement will be
automatically extended beyond its expiration, unless either
the Park District or the Union gives at least ninety (90)
days’ notice to sunset this agreement. In the event either
the Park District or the Union gives notice to sunset this
Letter of Agreement, the Parties will satisfy their statutory
obligations to meet and confer.”
Furthermore, the Telecommute LOA provided that “a supervisor or a manager may
deny, end, or modify a Telecommute Agreement for any business reason that is not
5 The 2017-2021 MOU—and by extension the 2021-2024 MOU—does not
contain any language that would arguably terminate, modify, or extinguish the
Telecommute LOA.

5
arbitrary or capricious” except as otherwise provided by the LOA, and provided that
AFSCME could grieve denials, rescissions, or terminations of telecommute
agreements under the grievance procedure set out in the MOU, up to and including
arbitration.
At hearing, the parties did not present any bargaining notes or bargaining
proposals that led to the adoption of the Telecommute LOA. When Landreth joined the
District in March 2021, negotiations for what became the original Telecommute LOA
were already in progress. She did not personally attend any of the negotiations at
issue but held regular check-ins and briefings with the District’s negotiations team and
provided direction to them. During negotiations for the Telecommute LOA, she gave
“clear direction” to the District negotiating team, staff, managers, and District Board of
Directors that the policy was to be a time-limited pilot arrangement. The parties did not
discuss the meaning of the language “the Parties will satisfy their statutory obligations
to meet and confer” or what the status quo would be if the Telecommute LOA was
terminated.
Once the Telecommute LOA was in place, Landreth solicited feedback about
the program from staff, management, AFSCME representatives, and other public
entities. Landreth relayed some of the issues with the program to AFSCME
representatives: there was too much flexibility for each division and supervisor to
come up with the maximum number of telecommuting days, which led to
inconsistencies, and there was no single overlap day between employees, which other
public entities had indicated was helpful.

6
Termination of the Telecommute LOA and Subsequent Negotiations
On May 25, 2022—97 days before the August 30 expiration date—the District
gave notice to AFSCME via e-mail that it intended to sunset the Telecommute LOA
“effective August 30, 2022.”6 The District stated that it “hope[d] to implement a new
telecommute program” and invited AFSCME to “meet and confer with the Park District
to discuss such a new telecommute program,” and to provide availability during “the
weeks of June 6 and June 13, 2022.” Palmquist responded later that same day and
stated AFSCME “will definitely want to meet and confer” but that his schedule was
“tight” due to other negotiations, that he would need to confer with AFSCME’s team,
and that he thought the parties “will need much more than just two weeks.” He
suggested the parties schedule dates in July and August as well.
The parties provided limited testimony about what occurred during the July
through August bargaining sessions. In general, each party accuses the other of not
meaningfully engaging in negotiations.
The parties’ first bargaining session was on July 6. At hearing, witnesses for
both AFSCME and the District expressed surprise that the other party did not present
a proposal during the July 6 meeting. Palmquist did not attend the July 6 meeting, but
he testified that AFSCME assumed the District would provide the first proposal
because of the way the sunset notice was written. According to Rodrigues, the District
assumed AFSCME would make the first proposal because it was “an important issue”
6 All dates hereafter are in 2022 unless otherwise noted.

7
to them. In any case, at the close of the July 6 meeting, the parties agreed the District
would provide the first proposal.
On July 13, the District e-mailed AFSCME a draft telecommuting policy and
agreement form, and requested comments or revisions by July 24, or “it will be
assumed that the Union has no proposed changes/comment, and the Park District will
proceed with implementing the proposed policy and form.” Compared to the
Telecommute LOA, the draft policy changed some of the eligibility requirements;
required new employees to work exclusively in-person for their first month of
employment; generally required all employees to work in-person a minimum of three
days per week, including every Wednesday; prohibited employees from working
remotely outside of California; required telecommuting employees to attend meetings
while on camera; and specified that employees who request time off during in-office
days may be required to forgo their next regularly scheduled telecommuting days and
work in-person instead. It also allowed assistant general managers to terminate
individual telecommuting agreements “based on Park District needs or as required in
any operable MOU for any reason as long as such reason is not arbitrary or
capricious.” The draft also included the following language:
“The Telecommute Program is entirely discretionary and
may be revised, suspended, or rescinded by the General
Manager of the Park District at any time upon providing a
one-month notification to all Park District employees.”
Lastly, the draft provided that the telecommuting program “is not subject to the
grievance procedures in any Memorandum of Understanding nor subject to any other
review or appeal procedure.”

8
On July 15, Palmquist responded to the District’s e-mail and reiterated
AFSCME’s demand to meet and confer. He stated AFSCME would provide a written
proposal to the District, but did not agree with the proposed deadline of July 24. He
instructed the District to “cease and desist” from implementing its proposed
telecommuting policy until it had met its obligation to meet and confer. He also
indicated he had other negotiations scheduled for some of the dates the District had
offered to meet and confer, but offered a later start time for a July 26 meeting, and
confirmed availability for August 3, August 24, and August 31.
The parties did not meet on July 26 due to Palmquist’s scheduling conflicts.
They met for the second time on August 3, and AFSCME provided its counterproposal
on the telecommute policy on that date. AFSCME’s proposal essentially rejected all
the District’s changes to the prior Telecommute LOA, except that AFSCME agreed to
the prohibition on employees working remotely outside of California, while also adding
language allowing for telecommuting from out-of-state with prior authorization from the
employee’s direct supervisor. AFSCME also proposed in-person work a minimum of
one day a week rather than three days a week, without a specific “overlap” day. In
addition, AFSCME inserted language subjecting the telecommute program to the
grievance procedure and providing that employees’ direct supervisors would have the
authority to approve or deny telecommute agreements “for any business reason that is
not arbitrary or capricious,” rather than requiring approval by the employees’
supervisor, manager, and assistant general manager.
The parties met for the third time on August 9. The District provided its
counterproposal on the telecommute policy via e-mail that day and followed up with a

9
modified version on August 10 that included the “table edits” the parties discussed on
August 9 at the bargaining table. The District accepted some minor changes but
generally reverted to its prior proposal. On the language regarding rescission or
termination of individual telecommute agreements, the District changed the sentence
to: “An Assistant General Manager may terminate or rescind a Telecommuting
Agreement at any time upon providing at least seven (7) calendar days written notice
for any reason as long as such reason is not arbitrary or capricious.” The District also
added new language specifying that if an employee’s telecommute day falls on a
holiday, the employee may not switch their telecommute day without prior approval
from an assistant general manager, and language requiring employees who accept
acting assignments, promotions, or transfers into another division to reapply for
telecommute agreements. Furthermore, the District maintained the non-grievability
language and the provision allowing the general manager to revise, suspend, or
rescind the entire program at their discretion.
On August 11, at 4:08 p.m., Dunphy e-mailed AFSCME to follow up on a
discussion from the parties’ August 9 meet and confer session. Dunphy stated that the
District’s obligations under the Telecommute LOA were “separate and apart from the
meet and confer process over a new telecommute policy,” and the District had met its
obligations to sunset the Telecommute LOA because it had provided the requisite
notice and an opportunity for AFSCME to identify any impacts from ending the LOA,
and AFSCME had not done so.
Also on August 11, Landreth sent an e-mail to all District employees regarding
telecommute policies. The e-mail explained that the District had already implemented

10
a new telecommute policy for “managers, confidentials, and unrepresented
employees” (the Management Policy) and requested that any employee in those
categories who wished to telecommute after August 30 submit an agreement for
review and approval. Landreth then summarized the negotiations with AFSCME,
enclosed a chart listing the major differences in the parties’ proposals, attached the
proposals exchanged to date, and included a list of “frequently asked questions.” The
e-mail ended with the following paragraph:
“Though we remain confident in our proposal and hopeful
that we will reach agreement, the next meeting that
AFSCME has agreed to is not until August 24, 2022, which
edges up to the expiration of the Pilot Policy and Program
on August 30, 2022. The management team remains
available to continue discussions with the Union on a new
policy should there be a request to meet earlier. The Park
District remains consistent in wanting to continue
offering remote work for all eligible Park District staff in
light of its benefits to employees, the environment, and
to work/life balance. While a policy is needed to continue
to allow AFSCME to telework, the Park District thinks
employees should not be penalized in this interim period,
so on a temporary basis until discussions on a successor
policy are completed, the Park District will offer an optional
benefit to AFSCME employees to continue to telework
after August 30, 2022 under the terms of the
unrepresented telework policy. Should any employee
decide to take advantage of this optional benefit, they
should discuss it with their Supervisor/Manager and be
prepared to complete a form. Employees who do not want
this optional benefit should discuss in person expectations
with their Supervisor/Manager.”
(Bolding in original.)
Later the same day at 5:55 p.m., Auker e-mailed employees in the Finance and
Management Services Division, asking them to review Landreth’s message carefully,

11
and “know that we are trying to create a temporary bridge between the current
telework policy that will sunset at the end of the month and a new policy that is
currently under review.” She indicated that if employees “chose to take advantage of
this opportunity we will process these requests as quickly as we can.”
On August 15, an e-mail was sent on behalf of O’Connor to all represented
Operations employees. The e-mail stated O’Connor was following up on Landreth’s
August 11 e-mail, and directed “[t]hose represented staff that wish to take advantage
of this optional temporary benefit” to complete an attached form by August 24. The
form attached to the e-mail was titled “Telecommute Agreement Form (Unrepresented,
Confidentials, and Managers ONLY).”
The Management Policy and accompanying form closely resembled the
District’s proposals to AFSCME. The eligibility criteria were generally the same, new
employees were not eligible to telecommute for the first month of employment,
employees were prohibited from working remotely outside of California, employees
who requested time off on in-office days could be required to forgo their regularly
scheduled telecommuting days, and assistant general managers could “approve,
deny, or modify Telework Agreements for any reason as long as such reason is not
arbitrary or capricious.” The Management Policy also required employees to work
in-person a minimum of three days a week, including Wednesdays, and to attend
meetings while on camera. Finally, the Management Policy stated that the
telecommute program was not subject to any review or appeal procedure, and
included the same language stating the program was “entirely discretionary” and could

12
be revised, suspended, or rescinded by the General Manager upon one month’s
notice.
On August 22, Palmquist responded to the District’s August 11 e-mails. He
stated AFSCME strongly disagreed that the District had “the right to unilaterally
change AFSCME-represented employees’ status quo working conditions,” maintained
that Landreth’s August 11 e-mail constituted an unfair labor practice, and informed the
District that AFSCME would continue to meet and confer about the telecommute policy
under protest. (Original formatting removed.) He offered a number of dates for future
meet and confer sessions.
The parties met for a fourth time on August 24, and AFSCME provided another
counterproposal. AFSCME maintained most of its prior positions, but agreed to most
of the District’s eligibility criteria, which it had previously rejected, and proposed
in-person work a minimum of two days a week rather than one day a week, without a
specific “overlap” day. Dunphy responded on behalf of the District via e-mail on
August 26. She stated the parties “remain significantly apart on a number of major
issues,” and accordingly, the District was making its “last, best, and final offer” (LBFO).
The most significant change the District made in its August 26 LBFO was to provide
that denials or rescissions of telecommute agreements could be appealed to the
General Manager or designee; however, the decision of the General Manager or
designee would be final and not appealable under the grievance procedure, and
approvals or modifications to telecommute agreements were not appealable. The
District otherwise maintained its prior positions, including in-person work a minimum of

13
three days per week, including Wednesdays, and the General Manager’s discretion to
revise, suspend, or rescind the program upon one month’s notice to employees.
On August 29, Palmquist responded to the District via e-mail. He stated that the
District’s LBFO was not “legitimate” or made in good faith because the District had
unilaterally implemented the Management Policy and abruptly delivered an LBFO
when the parties had more bargaining sessions scheduled. He also stated AFSCME
saw no reason to continue meeting and conferring with the District regarding the
telecommute policy unless the District agreed to (1) rescind the Management Policy
that was implemented via Landreth’s August 11 e-mail as applied to
AFSCME-represented employees, and restore the telecommute agreements made by
AFSCME-represented employees under the original Telecommute LOA; and
(2) commit to bargaining in good faith moving forward, including by maintaining the
status quo established by the Telecommute LOA until negotiations were completed in
good faith, including any mediation or mandatory fact-finding.
Dunphy responded via e-mail on August 30, and stated the District disagreed:
“[t]he status quo ante is a return to in-person work, not maintaining agreements under
an LOA that will end effective tomorrow.” She stated the District would not agree to
AFSCME’s demands, and ended with:
“We understand from your email that AFSCME is
unilaterally cancelling all further meetings on this matter,
including the meeting scheduled for tomorrow and will not
be providing any further counterproposals. Given that, it
appears that the parties are at a stalemate and that further
engagement on this matter will not result in an agreed-upon
telecommute policy. Accordingly, the Park District hereby

14
submits this formal declaration of impasse in this meet and
confer process.”
Palmquist responded on August 31, stating AFSCME disagreed with the District’s
characterizations and maintaining that the District had not perfected a bona fide
impasse.
After August 31, the parties participated in settlement discussions but did not
exchange any other proposals or otherwise reopen negotiations regarding the
telecommute policy. It is undisputed that at least some AFSCME-represented
employees continued to telecommute after August 30 under the Management Policy,
pursuant to Landreth’s August 11 e-mail.
As for the District’s reasons for terminating the Telecommute LOA, the District
offered only hearsay evidence at hearing, but we need not address the admissibility of
that evidence as it has no potential impact on the outcome, as we discuss post, p. 17,
fn. 8.
August 9 District Board of Directors Meeting
The District held a Board of Directors meeting on August 9, and provided
in-person access to the public as well as virtual access via the web platform Zoom.
Palmquist attended the meeting virtually, along with approximately 50 to 75 AFSCME
members, about 40 of whom gave public comment. The District’s video recording of
the meeting was played during the PERB formal hearing. The video shows Palmquist
beginning to read remarks prepared for public comment, a transcript of which is in the
record. As he is speaking, the video shows five different Zoom “boxes” which are
focused on Palmquist, Landreth, President Colin Coffey, District Board General

15
Counsel Lynne Bourgault, and another District Board Director. All the District
representatives are seen wearing face masks.
The video shows Palmquist saying the District’s decision to sunset the
Telecommute LOA was a “power trip by the assistant general managers,” that the
assistant general manager team has a “toxicity problem,” that Landreth “is not
empowered to rein in rogue” assistant general managers, and that “Jim O’Connor and
Debra Auker are the epicenter of these problems.” At this point, the video shows both
Landreth and Bourgault looking at a point off-screen—possibly at each other and/or at
Coffey—while Palmquist continues, saying Auker and O’Connor “acted arbitrarily in
mostly denying telecommute agreements” and “are where the bulk of AFSCME’s
grievances are.” At the same time, Landreth appears to speak, and Bourgault shakes
her head, leans forward, and begins to speak, but her audio cannot be made out over
Palmquist’s. Landreth looks to another direction off-screen and appears to say
something. Coffey looks off-screen, and Palmquist’s audio abruptly stops but he
continues to speak. Coffey, Landreth, and Bourgault then appear to be speaking to
each other, but there is no audio. An unidentified voice chimes in: “I think someone
muted him.” After a moment, Bourgault leans forward again and says: “There is a
concern that they’re making personal attacks against staff. It’s up to you, President
Coffey.” Coffey says, “Rod, I’m just getting some objections from staff that you’re
getting focused on individuals instead of the topic,” and says he will allow Palmquist to
continue “but I just wanted you to know that it doesn’t necessarily advance the
dialogue to do that.” Palmquist is then unmuted and continues speaking, but at

16
hearing he testified that he was initially unaware he had been muted, and did not know
where to resume his remarks.
While the clerk of the board did not testify at hearing, Landreth’s unrebutted
testimony was that only the clerk had the ability to mute a participant on Zoom.
Landreth did not give direction to mute Palmquist, nor did she hear Bourgault or any
District Board Director give a direction to mute Palmquist. At the point when Palmquist
mentioned O’Connor, Landreth told Bourgault it was an “unnecessary personal attack”
or words to that effect, but Landreth did not remember what Bourgault said to her in
response. Based on Landreth’s testimony, and the fact that, in the video, Bourgault
seemed unsurprised Palmquist had been muted and used the same words Landreth
did when addressing Coffey (referencing a “personal attack”), the ALJ found, and we
agree, that the District was responsible for muting Palmquist during the Board of
Directors meeting. We find this to be the case whether or not Landreth gave or heard
an explicit instruction to the clerk to do so.
On November 8, counsel for AFSCME sent the District a letter demanding it
cease and desist from censoring public comment as it did by muting Palmquist, and
from requiring pre-registration to comment on closed session items in violation of the
Ralph M. Brown Act (Brown Act).7 On December 6, the Board of Directors adopted a
resolution authorizing Coffey to send a letter to AFSCME “communicating the Board’s
unconditional commitment to cease, desist, and not repeat the past actions as
alleged” in AFSCME’s November 8 letter. Also on December 6, Coffey sent a letter to
7 The Brown Act is codified at section 54950 et seq.

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AFSCME’s counsel in which the District committed to cease and desist from the
offending conduct. No evidence was proffered regarding whether the letter or its
contents was shared with AFSCME-represented District employees.
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
However, to the extent that a proposed decision has adequately addressed issues
raised by certain exceptions, the Board need not further analyze those exceptions.
(Ibid.) The Board also need not address alleged errors that would not affect the
outcome. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
In Part I below, we explain that telecommute policies fall within the scope of
representation, meaning they constitute a mandatory subject of bargaining. Parts II, III,
and IV then analyze the direct dealing, unilateral change, and independent
interference allegations, while Part V discusses the appropriate remedy.8
8 As the ALJ noted, muting Palmquist’s microphone is the only independent
interference claim alleged in the complaint. The complaint’s other interference claims
are purely derivative of the unilateral change and direct dealing allegations. While the
District attempted to raise a business necessity defense to the derivative interference
claims, there is no such defense to a derivative claim. A derivative interference claim
never warrants separate analysis, as its outcome is always the same as the claim
from which it derives. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.)
Here, the derivative interference claims succeed because they derive from unilateral
change and direct dealing claims that AFSCME established. While a business
necessity defense is available to a unilateral change claim, the ALJ correctly noted
that the District did not raise such a defense and in any event could not have
established its elements: “(1) an actual financial or other emergency that (2) leaves no
real alternative to the action taken and (3) allows no time for meaningful negotiations
before taking action.” (Imperial Irrigation District (2023) PERB Decision No. 2861-M,
p. 56.) The District also waived, for a second time, any business necessity defense to

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the unilateral change allegation by not arguing any such defense in its exceptions.
I. 	Scope of Representation
The “scope of representation” under the MMBA includes “all matters relating to
employment conditions and employer-employee relations, including, but not limited to,
wages, hours, and other terms and conditions of employment, except, however, that
the scope of representation shall not include consideration of the merits, necessity, or
organization of any service or activity provided by law or executive order.” (§ 3504.)
Although work-from-home policies are not an enumerated category under the MMBA,
we have already found such policies within the scope of representation in cases falling
under the Educational Employment Relations Act, section 3540 et seq. (See Oxnard
Union High School District (2022) PERB Decision No. 2803, pp. 43-44; West
Valley-Mission Community College District (2024) PERB Decision No. 2917, pp. 15-16
(West Valley).) Here, the District concedes that telecommuting policies are a
mandatory subject of bargaining. Because this case is our first occasion to address
work-from-home policies in the context of the MMBA, however, we briefly explain why
they are negotiable.
PERB’s test for determining the scope of bargaining under the MMBA derives
from International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment
Relations Bd. (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters). In that case,
the Supreme Court observed that there are three categories of managerial decisions,
each with its own implications for the scope of representation: (1) “decisions that ‘have
only an indirect and attenuated impact on the employment relationship’ and thus are

19
not mandatory subjects of bargaining,” such as advertising, product design, and
financing; (2) “decisions directly defining the employment relationship, such as wages,
workplace rules, and the order of succession of layoffs and recalls,” which are “always
mandatory subjects of bargaining” (emphasis added); and (3) “decisions that directly
affect employment, such as eliminating jobs, but nonetheless may not be mandatory
subjects of bargaining because they involve ‘a change in the scope and direction of
the enterprise’ or, in other words, the employer’s ‘retained freedom to manage its
affairs unrelated to employment.’” (County of Orange (2018) PERB Decision No. 2594-
M, p. 18, quoting Richmond Firefighters, supra, 51 Cal.4th at pp. 272-273.) Applying
Richmond Firefighters to the facts herein, we conclude that the telecommute policy
would fall under the second category of decisions because it directly defines the
employment relationship. Work-from-home policies concern hours of work and are
thus subject to decisional bargaining.
Having concluded that telecommute policies are mandatory subjects of
bargaining under the MMBA, we turn next to the specific complaint allegations.
II. 	Direct Dealing
There are two alternate means of establishing a direct dealing or bypassing
violation. (County of Santa Clara, supra, PERB Order No. Ad-485-M, p. 14 & fn. 9.)
First, an employer violates the duty to bargain in good faith if it directly approaches
employees to effect a change in terms or conditions of employment within the scope of
representation. (Walnut Valley Unified School District (1981) PERB Decision No. 160,
p. 4.) Thus, a charging party may demonstrate unlawful bypassing by showing that the
employer dealt directly with its employees (1) to create a new policy of general

20
application, or (2) to obtain a waiver or modification of existing policies applicable to
those employees. (Id. at p. 6.) However, once a policy has been established by lawful
means, an employer has the right to take necessary actions, including consulting with
employees, to implement the policy. (Ibid.)
Second, an employer may not communicate directly with employees to
undermine or derogate a union’s exclusive authority to represent unit members.
(Muroc Unified School District (1978) PERB Decision No. 80, pp. 19-20.) If the
employer communication at issue relates to collective bargaining, an employer may
accurately describe the parties’ negotiations, but must refrain from misleading
employees, making new proposals it has not made at the bargaining table, seeking to
bargain directly with employees, inviting them to abandon their representative to
achieve better terms directly from the employer, or engaging in a campaign to
disparage the union’s negotiators so as to drive a wedge between employees and
their union. (Trustees of the California State University (2006) PERB Decision
No. 1871-H, adopting dismissal letter at p. 3.) Consequently, an employer “must
refrain from a campaign of communications to sway the views of the employees while
maintaining an inflexible position at the negotiating table. Such conduct bypasses and
undermines the exclusive representative by negotiating with the union through the
employees instead of with the employees through the union.” (Ibid.; Muroc Unified
School District, supra, PERB Decision No. 80, p. 21.)
The ALJ concluded that the District engaged in the first category of direct
dealing through Landreth’s August 11 e-mail to all employees. There, Landreth
“offer[ed] an optional benefit to AFSCME employees to continue to telework after

21
August 30, 2022 under the terms of the [Management Policy],” without which they
would lose the ability to telework after August 30. (Original formatting removed.) Like
the ALJ, we are hard-pressed to view this communication as anything other than a
direct overture to unit employees to obtain a waiver or modification of the
Telecommute LOA and supplant it with the Management Policy. This evidence
notwithstanding, the District argues that it did not implement a new policy with respect
to AFSCME-represented employees because they were not “forced” to choose
between working in-person or remotely, as the latter was an “optional benefit.”
Whether the Management Policy is labeled compulsory or optional, the District cannot
overcome the fact that it was a new and different policy and by directly offering
AFSCME-represented employees coverage under a new and different policy, the
District bypassed AFSCME to directly solicit its members. We similarly reject the
District’s argument that it could not have bypassed AFSCME because its conduct was
not coercive, as coercion is not necessary to a finding of direct dealing. (See Trustees
of the California State University, supra, PERB Decision No. 1871-H, adopting
dismissal letter at p. 3.)9
The District next argues that, because the MOU does not cover telecommuting
and the LOA expressly stated that telecommuting is “a privilege, not a right,” the
default was for employees to return to work 100 percent in person when the
9 This is unlike interference allegations involving employer speech, where
PERB looks to the surrounding circumstances to determine if an employee or union
representative would objectively tend to feel that the communication coerces,
restrains, or otherwise interferes with protected rights. (City of San Diego (2020)
PERB Decision No. 2747-M, p. 37.)

22
Telecommute LOA expired. The District’s reasoning is incorrect. Even if the District’s
argument about the effect of the Telecommute LOA’s expiration on the status quo was
correct (discussed post, pp. 23-27), the District could not offer a new and different
policy directly to employees while bypassing AFSCME.
For the foregoing reasons, we affirm the direct dealing violation.
III. 	Unilateral Change
A unilateral change to a matter within the scope of representation is a per se
violation of the respondent’s duty to bargain in good faith. (Stockton Unified School
District (1980) PERB Decision No. 143, p. 22.) Because a unilateral change has an
inherently destabilizing and detrimental effect upon the parties’ bargaining
relationship, it is unlawful irrespective of intent. (City of Montebello (2016) PERB
Decision No. 2491-M, p. 10; County of Riverside (2014) PERB Decision No. 2360-M,
p. 18.)
To establish a prima facie case that a respondent employer made an unlawful
unilateral change, a charging party union that exclusively represents a bargaining unit
must prove: (1) the employer changed or deviated from the status quo; (2) the change
or deviation concerned a matter within the scope of representation; (3) the change or
deviation had a generalized effect or continuing impact on represented employees’
terms or conditions of employment; and (4) the employer reached its decision without
first providing adequate advance notice of the proposed change to the union and
bargaining in good faith over the decision, at the union’s request, until the parties
reached an agreement or a lawful impasse. (Bellflower Unified School District (2021)
PERB Decision No. 2796, p. 9 (Bellflower).)

23
The ALJ found, and we affirmed above, that the Telecommute LOA was within
the scope of representation. The ALJ also correctly found that terminating the
Telecommute LOA had a generalized effect or continuing impact on
AFSCME-represented employees’ terms and conditions of employment. Since the
District does not challenge these conclusions, we focus our discussion on the first and
fourth elements of the unilateral change test.
A. The District Changed the Status Quo
There are three primary means of establishing that an employer changed or
deviated from the status quo: (1) a deviation from a written agreement or written
policy; (2) a change in an established past practice; or (3) a newly created policy or
application or enforcement of existing policy in a new way. (Bellflower, supra, PERB
Decision No. 2796, p. 10.) Similar to its stance regarding the direct dealing allegations,
the District contends terminating the Telecommute LOA did not change the status quo
because the status quo was 100 percent in-person work, rather than the terms and
conditions set by the Telecommute LOA. The District is mistaken.
As a starting point, a side letter, like a collective bargaining agreement (CBA), is
a binding contract. (Palomar Community College District (2011) PERB Decision
No. 2213, p. 9 (Palomar).) Therefore, just as a CBA sets the applicable status quo
even after its expiration date, a side letter does the same. Indeed, this principle dates
to precedent as old as PERB itself, as the Board has repeatedly held that “the duty to
bargain in good faith over negotiable matters is continuous and binds both labor and
management not only through the life of the agreement but also during negotiations
after the term of the agreement has expired up to the point of impasse.” (Stanislaus

24
Consolidated Fire Protection District (2012) PERB Decision No. 2231-M, p. 13;
Standard Teachers Association, CTA/NEA (2005) PERB Decision No. 1775, adopting
proposed decision at p. 14 [“a party is precluded from making unilateral changes in the
status quo both during the term of a negotiated agreement and after that agreement
expires, until such time as the parties negotiate a successor agreement or they
negotiate through completion of the statutory impasse procedure”]; San Mateo County
Community College District (1979) PERB Decision No. 94, p. 17 [rejecting employer’s
argument to follow jurisdictions that have allowed employers to make a unilateral
change after a contract has expired]; see also San Joaquin County Employees
Assn. v. City of Stockton (1984) 161 Cal.App.3d 813, 818-819 [“status quo is
measured by reference to the expired agreement itself”].)
The District’s obligations with respect to the Telecommute LOA were therefore
the same as with a CBA that is effective for a definite term. After the Telecommute
LOA expired on August 30, the District was required to maintain the terms of the
agreement until the parties completed good faith negotiations. (CCSF, supra, PERB
Decision No. 2691-M, p. 35, fn. 22 [employer must maintain status quo until good faith
negotiations completed]; City and County of San Francisco (2017) PERB Decision
No. 2540-M, adopting proposed decision at p. 30.) Put a different way, irrespective of
the Telecommute LOA’s stated expiration date, the District’s obligation to maintain the
status quo pending negotiations did not automatically expire on August 30.
Even so, the District argues that PERB regards expiration dates in side letters
differently than it does expiration dates in CBAs or memoranda of understanding,
citing Palomar, supra, PERB Decision No. 2213. Palomar is the Board’s leading case

25
regarding side letters. There, the employer issued a letter of reprimand to an
employee pursuant to a 2005 side letter that contained no express reference to its
duration. (Id. at pp. 9-10.) The union alleged that the side letter expired in 2006 when
the parties last modified their CBA, and that the side letter was not in effect when the
employer issued the reprimand. (Id. at pp. 2, 5.) The Board explained:
“[A] side letter is an agreement between an employer and
union that typically: (1) modifies, clarifies or interprets an
existing provision in an MOU; or (2) addresses issues of
interest to the parties that are not otherwise covered by the
MOU. At its most basic, a side letter is a contract between
the parties. As such, the duration of such an agreement is
dictated by the provisions of the side letter itself (either
express or implied) or by the subsequent conduct of the
parties. [Internal citation.] Consequently, absent a provision
in an MOU, an agreement between the parties or other
evidence demonstrating the parties intended it to expire, a
side letter does not automatically expire upon the
ratification of a subsequently negotiated MOU.”
(Id. at p. 9.) Applying this framework, the Board affirmed the dismissal of the
complaint, finding nothing in the 2005 side letter or the parties’ CBA operated to
terminate the side letter. (Id. at p. 10.) By the District’s reading, Palomar requires us to
“strictly enforce” the expiration date in the Telecommute LOA and find that the
Telecommute LOA “ceased to exist” after August 30. We do not interpret the decision
in such a brittle manner. Instead, we find Palomar to stand for the straightforward
proposition that side letters are binding contracts that do not automatically expire at
the expiration of an MOU or CBA, unless specifically stated in an MOU, CBA, or the
side letter itself. Palomar does not dictate that parties’ obligations are automatically
extinguished upon expiration of a side letter.

26
To be sure, bargaining parties are permitted to agree—in either a side letter or
any other collectively bargained agreement—that certain employment terms will revert
or change in a specified manner immediately at expiration, even while bargaining
proceeds. But any such agreement must be clear and unmistakable. (See California
State Employees’ Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th
923, 937-939 [where contract provision afforded annual merit increases “for the
duration of this agreement,” annual merit increases continued to define the
post-expiration status quo pending negotiations, as “a collective bargaining agreement
is not an ordinary contract”]; accord State of California (Department of Personnel
Administration) (1998) PERB Decision No. 1296-S, pp. 2-3 & adopting proposed
decision at pp. 19-30.) The sunset language in the Telecommute LOA does not qualify
because it does not specify what (if any) replacement terms would take effect upon
sunset. Indeed, much to the contrary, the sunset provision closed by stating: “In the
event either the Park District or the Union gives notice to sunset this Letter of
Agreement, the Parties will satisfy their statutory obligations to meet and confer.” The
parties thus contemplated what would happen after the sunset date. They did not state
that bargaining would occur with new terms in place. We must presume they knew the
default set forth by extensive precedent: that the status quo would remain in place for
the period of bargaining, absent an explicit agreement delineating that alternate terms
would be in place during negotiations.
For these reasons, by operation of the duty to maintain the status quo during
bargaining, the terms of the Telecommute LOA remained the status quo after the
sunset date, only so long as the parties’ bargaining was not yet complete. But even if

27
that were not the case, there would still be no question that the District implemented a
new policy, and/or applied or enforced existing policy in a new way, by forcing
exclusively-represented employees to choose between giving up working from home
altogether and instead working fully in-person, or abiding by new, unilaterally imposed
terms that had never before existed, and which greatly limited the extent to which they
could work from home.
Thus, we conclude that the District deviated from the status quo.
B. The District Failed to Afford AFSCME Adequate Notice and to Bargain in
Good Faith to Agreement or Impasse
The third element of the unilateral change test requires that the employer afford
the employees’ union reasonable advance notice of the proposed change and bargain
in good faith over the decision, at the union’s request, to agreement or lawful impasse.
(County of Merced (2020) PERB Decision No. 2740-M, pp. 8-9; City of San Diego
(2015) PERB Decision No. 2464-M, p. 51, affd. sub nom. Boling v. Public Employment
Relations Board (2018) 5 Cal.5th 898.) Although the amount of time varies depending
on the circumstances of each case, “an employer must give notice sufficiently in
advance of reaching a firm decision to allow the representative an opportunity to
consult its members and decide whether to request information, demand bargaining,
acquiesce to the change, or take other action.” (Regents of the University of California
(2023) PERB Decision No. 2852-H, p. 17, quoting Regents of the University of
California (Berkeley) (2018) PERB Decision No. 2610-H, p. 45; Victor Valley Union
High School District (1986) PERB Decision No. 565, p. 5.)
A bona fide impasse exists if parties’ differences are so substantial and
prolonged that further meeting and conferring is futile, despite good faith negotiations

28
that were free from unfair labor practices. (CCSF, supra, PERB Decision No. 2691-M,
p. 39; County of Merced, supra, PERB Decision No. 2740-M, p. 15.) A party evinces
bad faith when it rushes to impasse, or if its impasse declaration is “premature,
unfounded, or insincere” (City of San Ramon, supra, PERB Decision No. 2571-M,
p. 10, quoting Fresno County In-Home Supportive Services Public Authority (2015)
PERB Decision No. 2418-M, p. 53), as such action “demonstrate[s] an intent to
subvert the negotiating process.” (County of Riverside, supra, PERB Decision
No. 2360-M, p. 12; City of San Gabriel (2020) PERB Decision No. 2751-M, pp. 23-24.)
An employer may impose new terms after impasse only if it bargained in good faith
throughout negotiations, from “inception through exhaustion of statutory or other
applicable impasse resolution procedures.” (City of San Ramon, supra, p. 6, quoting
City of San Jose (2013) PERB Decision No. 2341-M. p. 40; City of Glendale (2020)
PERB Decision No. 2694-M, p. 60.) In determining the existence of impasse on a
given date, PERB focuses on numerous factors, including: the number and length of
negotiation sessions; the extent to which the parties have exchanged information and
thoroughly discussed proposals and counterproposals in good faith; and the nature of
the unresolved issues and the parties’ discussions of such issues to date. (CCSF,
supra, p. 40; City of San Ramon, supra, pp. 10-12; County of Riverside, supra,
pp. 13-14.) Both parties must believe they are at the “end of their rope,” which is
typically negated if one party displays continuing movement, or if the other party
references a deadline for completion of negotiations and acts in accordance with that
deadline. (County of Merced, supra, PERB Decision No. 2740-M, pp. 16-17.)

29
As the ALJ impliedly found, the District did not provide advance notice of its
decision to impose new terms on employees, as it notified AFSCME at 4:08 p.m. on
August 11, the same day it e-mailed employees to notify them of the new terms. While
the District initially gave over three months’ notice that it intended to sunset the
Telecommute LOA and invited AFSCME to bargain with it over a new telecommute
program, that did not constitute advance notice of the new terms to be imposed on
August 31. Landreth’s August 11 e-mail to staff, sent while negotiations with AFSCME
were pending, reflected an abrupt about-face from the District’s willingness to bargain
and communicated the District’s firm decision to impose specific, new, restrictive
telecommute terms on an upcoming date, irrespective of whether the parties had
completed negotiations by that date. (State of California (California Correctional
Health Care Services) (2022) PERB Decision No. 2823-S, p. 13.) Thus, the District did
not afford AFSCME reasonable advance notice before imposing new terms on
employees. (West Contra Costa Unified School District (2023) PERB Decision
No. 2881, pp. 16-17 [when union learns of changes on same day as affected
employees, or after decision has been made, that is a fait accompli and does not
constitute any advance notice, much less reasonable advance notice].)
In addition to providing notice to AFSCME, the District was also required to
bargain in good faith until the parties either reached an agreement or a bona fide
impasse and afforded time for AFSCME to avail itself of the impasse resolution
procedures set forth in MMBA section 3504.5. The District argues that it negotiated in
good faith with AFSCME and lawfully declared impasse, but the record bears out a
different conclusion, beginning with the District’s imposition of an unlawful time limit on

30
negotiations. By taking the position that the status quo set by the Telecommute LOA
would no longer be honored if the parties did not reach an agreement by August 30,
the District effectively threatened that if AFSCME did not agree to its proposals, it
would impose an even less favorable status quo and force AFSCME to “bargain from
a hole.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 24.) The
District set a deadline for completion of negotiations and ultimately acted upon that
deadline, thereby rushing its bargaining obligations and prematurely declaring
impasse. (County of Merced, supra, PERB Decision No. 2740-M, p. 16; City of San
Gabriel, supra, PERB Decision No. 2751-M, pp. 23-28; City of Selma (2014) PERB
Decision No. 2380-M, pp. 13-15.) This was further confirmed by Landreth’s August 11
e-mail to all staff. Far from “evinc[ing] a genuine desire to reach an agreement,” this
e-mail bypassing AFSCME—which Landreth sent following the third bargaining
session on August 9 and ahead of another planned session on August 24—shows that
no bona fide impasse was possible. (City of San Gabriel, supra, pp. 23-28.)
Moreover, the District only provided a written declaration of impasse on
August 30. This was unlawful, first, because it post-dated by 19 days the District’s
announcement of new terms to employees. Also, because only a written declaration of
impasse can trigger a union’s right to avail itself of impasse resolution procedures
under MMBA section 3505.4 (County of Merced, supra, PERB Decision No. 2740-M,
p. 17, fn. 12), there was no opportunity for the parties to exhaust those procedures
between the District’s declaration of impasse on August 30 and the new terms taking
effect the next day.

31
Further compounding the District’s problems, the fact of the District’s unfair
labor practice during negotiations, viz., direct dealing with AFSCME-represented
employees while it was in bargaining with AFSCME over a new telecommute policy,
also precludes a finding of good faith bargaining and bona fide impasse. (City of
Glendale, supra, PERB Decision No. 2694-M, p. 60.) This bypassing violation
overshadows other nominal indicators of the District’s willingness to bargain with
AFSCME, including the four bargaining sessions before the District declared impasse,
because an employer’s conduct must be free of unfair labor practices as a
precondition to declaring impasse. (CCSF, supra, PERB Decision No. 2691-M, p. 39;
City of San Jose, supra, PERB Decision No. 2341-M, p. 40.)
In sum, we conclude that AFSCME stated a prima facie case of a unilateral
change. The District did not reassert its waiver defense on exceptions, and in any
event, we would reject it for the same reason the ALJ did, i.e., finding that the District
was obligated to bargain in good faith over changes to the telecommuting policy
obviates the need to address the District’s argument that AFSCME waived its right to
bargain. (Regents of the University of California, supra, PERB Decision No. 2852-H,
p. 18, fn. 10.) We therefore affirm the unilateral change violation.
IV. 	Interference
To establish a prima facie interference case, a charging party must show that
an employer’s conduct tends to or does result in some harm to protected union and/or
employee rights. (City of San Diego, supra, PERB Decision No. 2747-M, p. 36.) A
charging party need not establish that the employer acted because of an unlawful
motive. (Claremont Unified School District (2019) PERB Decision No. 2654, p. 20.)

32
If a charging party establishes a prima facie case, the burden shifts to the
employer. (City of San Diego, supra, PERB Decision No. 2747-M, p. 36.) The degree
of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of
protected rights, the employer must show that the interference results from
circumstances beyond its control and that no alternative course of action was
available. (Ibid.) For conduct that is not inherently destructive, the respondent may
attempt to justify its actions based on operational necessity. (Ibid.) In such cases,
PERB balances the asserted business need against the tendency to harm protected
rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.)
Within the category of actions or rules that are not inherently destructive, the stronger
the tendency to harm, the greater is the respondent’s burden to show its business
need was important and that it narrowly tailored its actions or rules to attain that
purpose while limiting harm to protected rights as much as possible. (Id. at pp. 36-37,
fn. 19.) In cases involving employer speech, the accuracy of the communication is
relevant to whether the employer can establish an affirmative defense. (Id. at p. 37.)
We have little difficulty finding that the District’s conduct interfered with
AFSCME’s protected rights. Shortly after Palmquist began criticizing various District
managers and officials at the August 9 District Board meeting, his microphone was
muted apparently with the approval of Bourgault, Landreth, and/or Coffey. As noted
above, we affirm the ALJ’s finding that the District authorized the muting. Bourgault
interrupted Palmquist to express concern about “personal attacks against staff,”
followed by Coffey who observed that Palmquist was “getting focused on individuals
instead of the topic.” Coffey then stated that he would allow Palmquist to resume

33
speaking, explaining: “I just wanted you to know that it doesn’t necessarily advance
the dialogue to do that.” This policing would reasonably tend to discourage protected
activity, and the resulting chilling effect tended to cause at least slight harm to
protected rights. (Alameda Health System (2023) PERB Decision No. 2856-M, p. 30.)
The District does not dispute that AFSCME had a protected right to advocate
for its members and criticize management at the August 9 District Board of Directors
meeting, nor does it contend that Palmquist’s speech lost its protection because it was
maliciously false. (Carpinteria Unified School District (2021) PERB Decision No. 2797,
p. 14.) Rather, the District argues that it did not interfere with AFSCME’s protected
rights because it muted Palmquist’s microphone for only thirty seconds, and in any
case, audio and video transmission issues during remote meetings are “not
uncommon” in our present time. Neither of these defenses establish operational
necessity.
Next, the District argues that even if it did interfere with AFSCME’s protected
rights, it negated any harm when the District Board adopted a resolution at the
December 6 public meeting whereby the District Board made an “unconditional
commitment to cease, desist, and not repeat the past actions as alleged.” We are not
convinced. An employer’s “honestly given retraction can erase the effects of a prior
coercive statement if the employer retraction was made in a manner that ‘completely
nullified the coercive effects of the earlier statement.’” (Jurupa Unified School District
(2015) PERB Decision No. 2458, p. 12, quoting Jurupa Unified School District (2013)
PERB Decision No. 2309, p. 9 [internal quotation marks omitted].) To be effective, the
retraction must be: (1) timely; (2) unambiguous; (3) specific in nature to the coercive

34
conduct; (4) free from other illegal conduct; (5) adequately publicized to the
employees involved; (6) not followed by other illegal conduct; and (7) accompanied by
assurances that the employer will not interfere with employees’ protected rights in the
future. (Alliance Environmental Science and Technology High School et al. (2020)
PERB Decision No. 2717, pp. 25-26.) The District Board’s resolution did not serve as
an effective retraction because it was not timely and was not adequately publicized to
the employees involved. While the Board of Directors passed the resolution at a public
meeting, the District did not offer any evidence that it gave notice of the resolution to
the AFSCME members who attended the August 9 meeting at which Palmquist spoke.
For the foregoing reasons, we find that the District interfered with AFSCME’s
protected rights when it muted Palmquist’s statement at the August 9 Board of
Directors meeting.
V. 	Remedy
The MMBA grants PERB broad remedial powers, including the authority to
issue cease-and-desist orders and to require such affirmative action as PERB deems
necessary to effectuate the MMBA’s policies and purposes. (§ 3509(a) & (b).) PERB
remedies must serve the dual purposes of compensating for the harm a violation
causes and deterring further violations. (County of San Joaquin v. Public Employment
Relations Bd. (2022) 82 Cal.App.5th 1053, 1068.) A “properly designed remedial order
seeks a restoration of the situation as nearly as possible to that which would have
obtained but for the unfair labor practice.” (Modesto City Schools (1983) PERB
Decision No. 291, pp. 67-68.) PERB’s standard remedy for an employer’s unlawful
unilateral change is a cease-and-desist order, a notice posting, restoration of the

35
status quo ante, appropriate make-whole relief including back pay and benefits with
interest, and an order to bargain with the union upon request. (Pittsburg Unified
School District (2022) PERB Decision No. 2833, p. 14; City of Pasadena (2014) PERB
Order No. Ad-406-M, pp. 12-15; Regents of the University of California (Berkeley),
supra, PERB Decision No. 2610-H, pp. 94-96.) This remedy also applies to a
bypassing violation. (Antelope Valley Community College District (2018) PERB
Decision No. 2618, pp. 23-25; Omnitrans (2010) PERB Decision No. 2143-M, pp. 8-9.)
We find these remedies appropriate here. Thus, we will order the District to
rescind the Management Policy as applied to AFSCME-represented employees, return
to the status quo as set out in the July 2021 Telecommute LOA, cease and desist from
failing to meet and confer in good faith with AFSCME over the telecommute policy,
notify and, on request, complete good faith negotiations with AFSCME before
changing telecommute policies, cease and desist from interfering with employees’
right to be represented by AFSCME and with AFSCME’s right to represent employees,
and post a notice of its violations.
As for make-whole relief, to serve the dual purposes of a remedial order noted
above, PERB must expunge the consequences of an unfair practice and restore “the
economic status quo that would have obtained but for the respondent’s wrongful act.”
(County of Santa Clara (2024) PERB Decision No. 2900-M, pp. 27-28, 31-32 [judicial
appeal pending]; County of Kern & Kern County Hospital Authority (2019) PERB
Decision No. 2659-M, pp. 26-27; City of Pasadena, supra, PERB Order No. Ad-406-M,
p. 13.) The District takes exception to the proposed make-whole order reimbursing
AFSCME-represented employees for commute expenses and childcare costs, arguing

36
that the Telecommute LOA specifically stated, “telecommuting is not a substitute for
dependent care.” For this reason, the District argues that this case is factually
distinguishable from West Valley, supra, PERB Decision No. 2917. We disagree.
In West Valley, supra, PERB Decision No. 2917, the Board concluded that the
employer had unilaterally changed academic counselors’ remote work policies by
requiring them to work 100 percent in person as the COVID-19 pandemic waned.
(Id. at pp. 1-2.) Part of the remedial order included a make-whole order for “economic
losses [ ] as a result of the [employer’s] unilateral change.” (Id. at p. 21, citing County
of Santa Clara, supra, PERB Decision No. 2900-M, pp. 27-28, 31-33 [PERB remedial
standards cover most direct or foreseeable harms resulting in material part from a
violation].) The order allowed the union to present evidence in compliance
proceedings regarding commute expenses and childcare expenses the counselors
incurred when they were required to shift from a hybrid work schedule to a 100
percent in-person schedule. (Id. at p. 21.)
These principles allow reimbursement for certain increased dependent care
costs, depending on proof. The compliance officer will certainly need to take into
account the principle that “telecommuting is not a substitute for dependent
care”; however, variables impacted by increased office work, such as commute time or
work-hour modifications, or a precipitous change in schedule, may impact dependent
care costs. Make-whole relief in the context of West Valley and the present case is for
harms that resulted in material part from the employers’ violations. (County of Santa
Clara, supra, PERB Decision No. 2900-M, pp. 28, 31.) The purpose of such relief is to
“‘recreate the conditions and relationships that would have been had there been no

37
unfair labor practice,’ even when doing so necessarily entails some degree of
uncertainty as to the precise relationships.” (City of Pasadena, supra, PERB Order
No. Ad-406-M, p. 13, quoting Franks v. Bowman Transp. Co., Inc. (1976) 424 U.S.
747, 769.) Here, it is possible for affected employees to prove in compliance that they
incurred greater childcare expenses as the result of having to commute to the office
more regularly, and on little notice. We therefore order reimbursement of economic
harms, potentially including commute expenses and/or increased childcare expenses,
subject to proof.
ORDER
Based on the foregoing and the entire record in the case, the Public
Employment Relations Board (PERB) finds that the East Bay Regional Park District
(District) violated the Meyers-Milias-Brown Act (MMBA), Government Code sections
3506.5(a), (b), (c), and (e), by unilaterally changing its telework policy without
bargaining in good faith to impasse or agreement with Charging Party American
Federation of State, County and Municipal Employees Council 57, Local 2428
(AFSCME); bypassing AFSCME and dealing directly with unit employees; and
interfering with protected rights by muting the microphone of AFSCME’s lead
negotiator during the public comment portion of a District Board of Directors meeting.
The District’s unilateral change and bypassing violations also derivatively interfered
with protected union and employee rights.
Pursuant to MMBA section 3509(b), we hereby ORDER that the District, its
governing board, and its representatives shall:

38
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and confer in good faith with
AFSCME over the District’s telecommute policy.
2. 	Bypassing AFSCME and dealing directly with unit employees
regarding changes to the telecommute policy.
3. 	Interfering with the right of bargaining unit employees to be
represented by the employee organization of their choosing.
4. 	Denying AFSCME its right to represent bargaining unit employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	At AFSCME’s request, rescind the telecommute policy changes
implemented in August 2022 for AFSCME-represented employees, and return to the
status quo as set out in the July 2021 Letter of Agreement Regarding Telecommuting.
2. 	Before changing telecommute policies for AFSCME-represented
employees, notify and, on request, complete good faith negotiations with AFSCME.
3. 	Make unit members whole for any harms incurred in material part
because of the District’s unilateral imposition of telecommute policy changes
implemented in August 2022 for AFSCME-represented employees, with interest
accrued to the date of payment at an annual rate of seven percent, compounded daily.
4. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all work locations where notices to AFSCME-represented employees
are posted, copies of the Notice attached hereto as an Appendix. An authorized agent
of the District must sign the Notice, indicating that the District will comply with the
terms of this Order. The District shall maintain the posting for a period of 30

39
consecutive workdays. The District shall take reasonable steps to ensure that the
Notice is not reduced in size, altered, defaced, or covered with any other material. In
addition to physically posting this Notice, the District shall communicate it by electronic
message, intranet, internet site, and other electronic means the District uses to
communicate with employees in the bargaining unit AFSCME represents.10
5. 	Notify OGC of the actions the District has taken to follow this
Order by providing written reports as directed by OGC and concurrently serving such
reports on AFSCME.
Members Krantz and Krausse joined in this Decision.
10 Either party may ask PERB’s Office of the General Counsel (OGC) to alter or
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC
shall solicit input from all parties and, if warranted, provide amended instructions to
ensure adequate notice.

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. SF-CE-1993-M, American
Federation of State, County & Municipal Employees Council 57, Local 2428 v. East
Bay Regional Park District, in which all parties had the right to participate, the Public
Employment Relations Board found that the East Bay Regional Park District (District)
violated the Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et
seq., when it: (1) failed to bargain in good faith to impasse or agreement with
American Federation of State, County and Municipal Employees Council 57, Local
2428 (AFSCME); (2) bypassed AFSCME and dealt directly with unit employees; and
(3) interfered with protected rights by muting the microphone of AFSCME’s lead
negotiator during the public comment portion of a District Board of Directors meeting.
The District’s unilateral change and bypassing violations also derivatively interfered
with protected union and employee rights.
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 meet and confer in good faith with
AFSCME over the District’s telecommute policy.
2. 	Bypassing AFSCME and dealing directly with unit employees
regarding changes to the telecommute policy.
3. 	Interfering with the right of bargaining unit employees to be
represented by the employee organization of their choosing.
4. 	Denying AFSCME its right to represent bargaining unit employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	At AFSCME’s request, rescind the telecommute policy changes
implemented in August 2022 for AFSCME-represented employees, and return to the
status quo as set out in the July 2021 Letter of Agreement Regarding Telecommuting.
2. 	Before changing telecommute policies for AFSCME-represented
employees, notify and, on request, complete good faith negotiations with AFSCME.

2
3. 	Make unit members whole for any harms incurred in material part
because of the District’s unilateral imposition of telecommute policy changes
implemented in August 2022 for AFSCME-represented employees, with interest
accrued to the date of payment at an annual rate of seven percent, compounded daily.
Dated: _____________________ 	East Bay Regional Park District
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.