City and County of San Francisco (International Airport) (PERB 1932M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

IFPTE, LOCAL 21, AFL-CIO,
Charging Party, Case No. SF-CE-420-M
Vv. PERB Decision No. 1932-M
CITY & COUNTY OF SAN FRANCISCO December 21, 2007
(INTERNATIONAL AIRPORT),
Respondent.

Appearances: Davis & Reno by Duane W. Reno, Attorney, for IFPTE, Local 21, AFL-CIO;
Martin R. Gran, Deputy City Attorney, for City & County of San Francisco (International
Airport).
Before Shek, McKeag and Wesley, Members.
DECISION

SHEK, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by IFPTE, Local 21, AFL-CIO (IFPTE) of a Board agent’s
dismissal (attached) of its unfair practice charge. The charge alleged that the City & County of
San Francisco (CCSF) violated the Meyers-Milias-Brown Act (MMBA)’ by unilaterally
reassigning an employee to a different project. IFPTE alleged that this conduct constituted a
unilateral change of its reassignment and transfer policy in violation of the duty to meet and

confer in good faith under MMBA sections 3503, 3504.5, and 3505, and PERB Regulation

32603(c).”

'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.

The Board has reviewed the entire record in this matter, including but not limited to the
unfair practice charge, CCSF's position statement, the warning and dismissal letters, IFPTE's
appeal
of
dismissal and CCSF's response. 	Based upon this review, the Board finds that the
warning and dismissal letters are free from prejudicial error, and adopts them as the decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. SF-CE-420-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
2

STATE
OF
CALIFORNIA 	ARNOLD SCHWARZENEGGER,
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
August 8, 2007
Duane Reno, Attorney
Davis Reno
22 Battery Street, Suite 1000
San
Francisco,
CA
94111-5524
Re: 	IFPTE, Local 21, AFL-CIO v. ·City & County
of
San Francisco (International Airport)
Unfair Practice Charge No. SF-CE-420-M; First Amended Charge
DISMISSAL LETTER
Dear
Mr. Reno:
The
above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 13, 2007. 	The IFPTE, Local 21, AFL-CIO alleges that
the City & County
of
San Francisco (International Airport) violated the Meyers-Milias-Brown
Act (MMBA) 1
by
changing the work assignment
of
employee Ed Stein, which Charging Party
contends constitutes a unilateral change.
I informed you in
my
attached letter dated April 16, 2007, that the above-referenced charge did
not state a prima facie case.
	You
were advised that,
if
there were any factual inaccuracies or
additional facts which would correct the deficiencies explained in that letter, you should amend
the charge. You were further advised that, unless you amended the charge to state a
prima
facie case
or
withdrew it prior to April 23, 2007, the charge would be dismissed.
On
April 23, 2007, I received a first amended charge. The amended charge adds additional
facts, which are summarized below.
Local
21
is the exclusive bargaining representative for the City's Professional and Technical
employees. 	Included within this unit is the classification
of
Contract Compliance Officer. The
City and Local 21 are parties to a collective bargaining agreement that expires on June 30,
2009. With regard to "reassignments" Article II(F) defines the term as follows:
Except in cases
of
urgent need, each City department shall post
notices
of
vacancies in a prominent location in the department,
and/or at each separate work location
of
the department, for a
period
of
not less than five ( 5) working days in order to afford
employees interested in reassignment an opportunity to apply for
a vacant position. Each such notice shall describe the
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-420-M
August
8,
2007
Page2 
classification
of
the position to be filled, the physical location
of
the position, its starting and quitting time, and a general
description
of
the work
to
be performed.
With regard to Transfers, Section 114.32.1
of
the City's Civil Service Rules, provides as
follows:
A transfer
of
a permanent appointee who has completed the
probationary period to a position in the same class under another
appointing officer shall be requested on the form prescribed by
the Human Resources Director.
Ed Stein is employed by the City as a Contract Compliance Officer at the San Francisco
International Airport. Mr. Stein's job duties require him to oversee and enforce the
performance
of
public works construction contracts between the City and private construction
companies. As such, Mr. Stein shadows the private construction companies to ensure
compliance with City contracts and safety standards.
On August 21, 2006, Jeffrey Yee, the owner
of
a private construction company that Mr. Stein
was monitoring, sent a letter to Airport administrators regarding Mr. Stein's alleged
inappropriate behavior. Upon receiving this complaint, the Airport administration placed Mr.
Stein on another project at the airport. Charging Party contends this conduct constitutes a
unilateral change in the transfer policy. More specifically, Charging Party contends that in
previous cases, an employee was not immediately removed from a project upon receipt
of
a
complaint.
Mr. Stein's new assignment requires him to spend approximately seven hours per day at the
north end
of
the airport overseeing the repair
of
a water main between taxiways
Sand
U. 	Prior
to this new assignment, Mr. Stein spent approximately five hours per day at the south end
of
the airport overseeing the installation of security cameras and two hours per day supervising
the electrical upgrade to Terminal 3.
Charging Party also notes that Mr. Stein was neither verbally nor formally reprimanded for his
work performance, and believes the City's removal
of
Mr. Stein from the electrical work will
allow substandard work by contractors.
Based on the facts provided in the original and amended charges, the charge still fails to state a
prima facie violation
of
the MMBA, for the reasons provided below.
Charging Party contends the City unilaterally changed its transfer policy in removing Mr. Stein
from his previous project. In determining whether a party has violated Government Code
section 3505 and PERB Regulation 32603(c),2 PERB utilizes either the "per se" or "totality of
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-420-M
August 8, 2007
Page 3
the conduct" test, depending on the specific conduct involved and the effect
of
such conduct on
the negotiating process. 	(Stockton Unified School District (1980) PERB Decision No. 143.)3
Unilateral changes are considered "per se" violations
if
certain criteria are met. 	Those criteria
are: 	(1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. 	(Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Association v. City
of
Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196,)
PERB has consistently held that the assignment
of
job duties that are reasonably related to
one's classification are not a mandatory subject or bargaining. 	(City and County
of
San
Francisco (2004) PERB Decision No. 1608-M; Davis Joint Unified School District (1984)
PERB Decision No. 393.) Thus, the new
job
assignment given to Mr. Stein is not a matter
within the scope
of
representation. Mr. Stein continued to work at the same location, is subject
to the same working conditions and continues to perform the identical work as in the prior
assignment. As such, the City's decision to give Mr. Stein a new assignment is not a matter
within scope and thus does not constitute a unilateral change.
Although Charging Party contends the City has "transferred" Mr. Stein, it must be noted that
Mr. Stein was neither transferred nor reassigned. 	Pursuant to the language quoted above, a
transfer or reassignment requires a new physical location or new appointing officer. A transfer
does not occur when an employee is simply given a new job assignment. Herein, Mr. Stein
was given a new assignment to monitor another private construction firm. 	The new
assignment does not place Mr. Stein in another department or even in another location. 	As
such, Charging Party's characterization
of
the City's conduct is inaccurate.
Right to Appeal
Pursuant to PERB Regulations,4 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. 	(Regulation 32635(a).) · Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section l 1020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
3 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. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
4 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-420-M
August
8,
2007
Page 4
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
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. 	(Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
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
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. 	(See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. 	A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. 	(Regulation
32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. 	The request must indicate good cause for and,
if
known, the position
ofeach other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)

SF-CE-420-M
August
8,
2007
Page 5
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time l1mits have expired.
Sincerely,
TAMIR.
BOGERT
General Counsel
By/~	
LZ
Kristin L. Rosi
Regional Attorney
Attachment
cc: 	Martin Gran

STATE OF CALIFORNIA 	( 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
April 16, 2007
Duane Reno, Attorney
Davis Reno
22 Battery Street, Suite 1000
San Francisco, CA 94111-5524
Re: 	IFPTE, Local 21, AFL-CIO v. City & County
of
San Francisco (International Airport)
Unfair Practice Charge No. SF-CE-420-M
WARNING LETTER
Dear Mr. Reno:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 13, 2007. The IFPTE, Local 21, AFL-CIO alleges that
the City & County
of
San Francisco (International Airport) violated the Meyers-Milias-Brown
Act (MMBA)1 by changing the work assignment
of
employee Ed Stein, which Charging Party
contends constitutes a unilateral change.
Investigation
of
the charge revealed the following. 	Local
21
is the exclusive bargaining
representative for the City's Professional and Technical employees. 	Included within this unit
is the classification
of
Contract Compliance Officer. 	The City and Local
21
are parties to a
collective bargaining agreement that expires on June 30, 2009. With regard to "reassignments"
Article II(F) defines the term as follows:
Except in cases
of
urgent need, each City department shall post
notices
of
vacancies in a prominent location in the department,
and/or at each separate work location
of
the department, for a
period
of
not less than five ( 5) working days in order to afford
employees interested in reassignment an opportunity to apply for
a vacant position. Each such notice shall describe the
classification
of
the position to be filled, the physical location
of
the position, its starting and quitting time, and a general
description
of
the work to be performed.
With regard to Transfers, Section 114.32.1 of the City's Civil Service Rules, provides as
follows:
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-420-M
April 16, 2007
Page 2
A transfer
of
a permanent appointee who has completed the
probationary period to a position in the same class under another
appointing officer shall be requested on the form prescribed by
the Human Resources Director.
Mr. Stein is employed by the City as a Contract Compliance Officer at the San Francisco
International Airport. Mr. Stein's job duties require him to oversee and enforce the
performance
of
public works construction contracts between the City and private construction
companies. As such, Mr. Stein shadows the private construction companies to ensure
compliance with City contracts and safety standards.
On August 21, 2006, Jeffrey Yee, the owner
of
a private construction company that Mr. Stein
was monitoring, sent a letter to Airport administrators regarding Mr. Stein's alleged
inappropriate behavior. 	Upon receiving this complaint, the Airport administration placed Mr.
Stein on another project at the airport. 	Charging Party contends this conduct constitutes a
unilateral change in the transfer policy. More specifically, Charging Party contends that in
previous cases, an employee was not immediately removed from a project upon receipt
of
a
complaint.
Based on the above stated facts, the charge as presently written fails to state a prima facie
violation
of
the MMBA, for the reasons provided below.
Charging Party contends the City unilaterally changed its transfer policy in removing Mr. Stein
from his previous project. In determining whether a party has violated Government Code
section 3505 and PERB Regulation 32603( c),2 PERB utilizes either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved and the effect
of
such conduct on
the negotiating process. (Stockton Unified School District (1980) PERB Decision No. 143.)3
Unilateral changes are considered "per se" violations
if
certain criteria are met. 	Those criteria
are: (1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters v. City
of
Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Association v. City
of
Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
PERB has consistently held that the assignment of job duties that are reasonably related to
one's classification are not a mandatory subject or bargaining. 	(City and County
of
San
Francisco (2004) PERB Decision No. 1608-M; Davis Joint Unified School District (1984)
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 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. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

SF-CE-420-M
April 16, 2007
Page 3
PERB Decision No. 393.) Thus, the new job assignment given to Mr. Stein is not a matter
within the scope of representation. Mr. Stein continued to work at the same location, is subject
to the same working conditions and continues to perform the identical work as in the prior
assignment. As such, the City's decision to give Mr. Stein an new assignment is not a matter
within scope and thus cannot constitute a unilateral change.
Although Charging Party contends the City has "transferred" Mr. Stein, it must be noted that
Mr. Stein was neither transferred nor reassigned. 	Pursuant to the language quoted above, a
transfer or reassignment requires a new physical location or new appointing officer. A transfer ·
does not occur when an employee is simply given a new job assignment. Herein, Mr. Stein
was given a new assignment to monitor another private construction firm. 	The new
assignment does not place Mr. Stein in another department or even in another location. 	As
such, Charging Party's characterization of the City's conduct is inaccurate.
For these reasons the charge, as presently written, does not state a prim.a facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. 	The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. 	The amended charge must have the case number written on the top right hand
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before April 23, 2007, I shall dismiss your charge. If
you have any questions, please call me at the above telephone number.
Sincerely,
Kristin L. Rosi
Regional Attorney
KLR