County of Ventura (Office of Agricultural Commissioner) (PERB 2227M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 721,
Charging Party, 	Case No. LA-CE-663-M
v . 	PERB Decision No. 2227-M
December 21, 2011	COUNTY OF VENTURA (OFFICE OF
AGRICULTURAL COMMISSIONER),
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by James Rutkowski, Attorney, for Service
Employees International Union Local 721; Cynthia Krause, Assistant County Counsel, for
County of Ventura (Office of Agricultural Commissioner).
Before Martinez, Chair; Mckeag and Huguenin, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Service Employees International Union Local 721 (SEIU) of the
dismissal (attached) of its unfair practice charge by a Board agent. The charge alleged that the
County of Ventura (Office of Agricultural Commissioner) (County) violated the Meyers-
Milias-Brown Act (MMBA)' when it unilaterally reduced an employee's work hours from ten
days per pay period to six days per pay period. SEIU alleged this conduct constituted a
violation of MMBA sections 3502, 3503, 3504, 3504.5 and 3505.
The Board agent ruled that section 901 of the parties' memorandum of agreement
(MOA) authorized the County to reduce the hours of bargaining unit positions due to lack of
MMBA is codified at Government Code section 3500 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 721,
Charging Party,
V.
COUNTY OF VENTURA (OFFICE OF
AGRICULTURAL COMMISSIONER),
Respondent.
Case No. LA-CE-663-M
PERB Decision No. 2227-M
December 21, 2011
Appearances: Weinberg, Roger & Rosenfeld by James Rutkowski, Attorney, for Service
Employees International Union Local 721; Cynthia Krause, Assistant County Counsel, for
County
of
Ventura (Office
of
Agricultural Commissioner).
Before Martinez, Chair; McKeag and Huguenin, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(Board) on appeal by Service Employees International Union Local 721 (SEIU)
of
the
dismissal ( attached)
of
its unfair practice charge by a Board agent. 	The charge alleged that the
County
of\
1 entura (Office
of
Agricultural Commissioner) (County) violated the
:tv1eyers-
Milias-Brown Act (MMBA) 1 when it unilaterally reduced an employee's work hours from ten
days per pay period to six days per pay period. SEID alleged this conduct constituted a
violation
of
MMBA sections 3502, 3503, 3504, 3504.5 and 3505.
The Board agent ruled that section 90 l
of
the parties' memorandum of agreement
(MOA) authorized the County to reduce the hours of bargaining unit positions due to lack of
1 MMBA is codified at Government Code section 3500 et seq.

work or for other legitimate reasons. Accordingly, the Board agent concluded that the specific
contractual language at issue constitutes a clear and unmistakable waiver of the right to
negotiate the County's unilateral reduction in hours. (See Grossmont Union High School
District (1983) PERB Decision No. 313 and Amador Valley Joint Union High School District
(1978) PERB Decision No. 74 [waiver must be established by clear and unmistakable
language].)
We have reviewed the entire record in this matter and find the warning and dismissal
letters are well-reasoned, adequately supported by the record and in accordance with applicable
law. Accordingly, the Board hereby adopts the warning and dismissal letters as a decision of
the Board itself.
DISCUSSION
PERB Regulation 32635(b) provides: "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (Los Banos
Unified School District (2009) PERB Decision No. 2063.) The purpose of this regulation "is
the first instance, so that that Board agent can fully investigate the charge prior to deciding
whether to issue a complaint or dismiss the case." (South San Francisco Unified School
District (1990) PERB Decision No. 830.)
In its appeal, SEIU argues for the first time that MOA section 901 can only be properly
interpreted when read in connection with MOA sections 902 and 903. SEIU, however, did not
offer any evidence of good cause for its failure to provide this evidence to the Board agent at
the charge processing stage. Accordingly, we find good cause does not exist to consider this
new evidence.
2
work or for other legitimate reasons. Accordingly, the Board agent concluded that the specific
contractual language at issue constitutes a clear and unmistakable waiver
of
the right to
negotiate the County's unilateral reduction in hours. (See Grossmont Union High School
District (1983) PERB Decision No. 313 and Amador Valley Joint Union High School District
(1978) PERB Decision No. 74 [waiver must be established by clear and unmistakable
language].)
We have reviewed the entire record in this matter and find the warning and dismissal
letters are well-reasoned, adequately supported by the record and in accordance with applicable
law. Accordingly, the Board hereby adopts the warning and dismissal letters as a decision
of
the Board itself.
DISCUSSION
PERB Regulation 32635(b) provides: "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new supporting evidence." (Los Banos
Unified School District (2009) PERB Decision No. 2063.) The purpose
of
this regulation
to require the charging party to present its allegations and supporting evidence to the Board in
the first instance, so that that Board agent can fully investigate the charge prior to deciding
whether to issue a complaint or dismiss the case." (South San Francisco Unified School
District (1990) PERB Decision No. 830.)
"is
to require the charging party to present its allegations and supporting evidence to the Board in
In its appeal, SEIU argues for the first time that MOA section 901 can only be properly
interpreted when read in connection with MOA sections 902 and 903. SEIU, however, did not
offer any evidence of good cause for its failure to provide this evidence to the Board agent at
the charge processing stage. Accordingly, we find good cause does not exist to consider this
new evidence.
2

ORDER
The unfair practice charge in Case No. LA-CE-663-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
3
ORDER
3
The unfair practice charge in Case No. LA-CE-663-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
PE.R.B 	Fax: (818) 551-2820
April 15, 2011
Pamela M. Briscoe
SEIU, Local 721
2372 Eastman Avenue, Suite 30
Ventura, CA 93003
Re: 	SEIU Local 721 v. County of Ventura (Office of Agricultural Commissioner)
Unfair Practice Charge No. LA-CE-663-M
DISMISSAL LETTER
Dear Ms. Briscoe:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 25, 2011. SEIU Local 721 (Union or Charging Party)
alleges that the County of Ventura (Office of Agricultural Commissioner) (County or
Respondent) violated section 3505 of the Meyers-Milias-Brown Act (MMBA or Act) by
unilaterally changing unit member schedules.
Charging Party was informed in the attached Warning Letter dated March 24, 2011, 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 that 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 8, 2011, the charge would be
dismissed.
After not receiving either an amended charge or a request for withdrawal, the undersigned
attempted to contact you by telephone on April 8, 2011 to determine whether the Union
intended on filing any additional materials with PERB. The undersigned left you a voice-mail
message but, to date, you have not contacted PERB. In addition, PERB has not received either
an amended charge or a request for withdrawal. Therefore, the charge is hereby dismissed
based on the facts and reasons set forth in the March 24, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, " Charging Party 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
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
April 15, 2011
Pamela
M.
Briscoe
SEIU, Local
721
2372 Eastman Avenue, Suite 30
Ventura, CA 93003
EDMUND G.
BROWN
	Governor
Re: 	SEIU Local
721
v.
County
of
Ventura (Office
of
Agricultural Commissioner)
Unfair Practice Charge No. LA-CE-663-M
DISMISSAL LETTER
Dear Ms. Briscoe:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 25, 2011. 	SEIU Local 721 (Union or Charging Party)
alleges that the
Countyof
Ventura (Office
of
Agricultural Commissioner) (County or
Respondent) violated sectiou'3505
of
the Meyers-Milias-Brown Act (MMBA or Act)1
by
unilaterally changing unit member schedules.
Charging Party was informed in the attached Warning Letter-dated March 24, 2011, that the
above-referenced charge did not state a prirna facie case. 	You were advised that,
if
there were
any factual inaccuracies or additional facts that 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 8, 2011, the charge would be
dismissed.
After not receiving either an amended charge or a request for withdrawal, the undersigned
attempted to contact you by telephone on April 8, 2011 to determine whether
the
Union
intended on filing any additional materials with PERB. The undersigned left you a voice-mail
message but, to date, you have not contacted PERB. In addition, PERB has not received either
an amended charge or a request for withdrawal. Therefore, the charge is hereby dismissed
based on the facts and reasons set forth in the March 24, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party 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
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-663-M
April 15, 2011
Page 2
this dismissal. (Cal. Code Regs, tit. 8, $ 32635, subd. (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.
(Cal. Code Regs, tit. 8, $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 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 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. (Cal. Code Regs, tit. 8, $ 32635, subd. (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 Cal. Code Regs., tit. 8, $ 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.
(Cal. Code Regs, tit. 8, $ 32135, subd. (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 of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, $ 32132.)
LA-CE-663-M
April 15, 2011
Page 2
this dismissal. 	(Cal. Code Regs, tit. 8, § 32635, subd. (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.
(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 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
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. (Cal. Code Regs, tit. 8, § 32635, subd. (b ).)
Service
i:iJl 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 Cal. Code Regs., tit. 8, § 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.
(Cal. Code Regs, tit. 8, § 32135, subd. (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 anextension
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
of
each other party regarding the extension, and shall be accompaniedby proof of service
of
the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)

LA-CE-663-M
April 15, 2011
Page 3
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
WENDI L. ROSS
Interim General Counsel
Regional Attorney
Attachment
cc: Cynthia Krause
LA-CE-663-M
April 15, 2011
Page 3
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
WENDI L. ROSS
Interim General Counse
By
Eric J. Car
Regional Attorney
Attachment
cc: 	Cynthia Krause

EDMUND G. BROWN JR., Governor	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax: (818) 551-2820
March 24, 2011
Pamela M. Briscoe
SEIU, Local 721
2372 Eastman Avenue, Suite 30
Ventura, CA 93003
Re: 	SEIU Local 721 v. County of Ventura (Office of Agricultural Commissioner)
Unfair Practice Charge No. LA-CE-663-M
WARNING LETTER
Dear Ms. Briscoe:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 25, 2011. SEIU Local 721 (Union or Charging Party)
alleges that the County of Ventura (Office of Agricultural Commissioner) (County or
Respondent) violated section 3505 of the Meyers-Milias-Brown Act (MMBA or Act) by
unilaterally changing unit member schedules.
The Union is the recognized employee organization of the General Bargaining Unit in the
County. The General Bargaining Unit includes the Planner IV position. Rita Graham is
employed at the County in the Planner IV position. The Union and the County are parties to a
Memorandum of Authority (MOA) containing a grievance procedure that culminates in
binding arbitration.
According to the County, MOA Article 9, section 901 states in relevant part:
The provisions of this Article are intended to define the normal
work schedule and do not guarantee a minimum number of hours
of work. The County retains its right to relieve employees from
duty because of lack of work or for other legitimate reasons;
On or about November 11, 2010, County Agricultural Commissioner informed Graham that
the County was reducing her hours from 10 to 6 work days per pay period, effective November
29, 2010. This would also mean a commensurate reduction in salary and benefits. The County
did not inform the Union of its decision.
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2804
Fax:
(8
I
8)
551-2820
March 24, 2011
EDMUND G.
BROWN
	Governor
Pamela
M.
Briscoe
SEIU, Local
721
2372 Eastman Avenue, Suite 30
Ventura, CA 93003
Re: 	SEIU Local
721
v.
County
of
Ventura (Office
of
Agricultural Commissioner)
Unfair Practice Charge No. LA-CE-663-M
WARNING LETTER
Dear Ms. Briscoe:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on January 25, 2011. SEIU Local
721
(Union or Charging Party)
alleges that the County
of
Ventura (Office
of
Agricultural Commissioner) (County or
Respondent) violated section 3505
of
the Meyers-Milias-Brown Act (MMBA or Act) 1 by
unilaterally changing unit member schedules.
The Union is the recognized employee organization
of
the General Bargaining Unit in the
County. 	The General Bargaining Unit includes the Planner IV position. Rita Graham is
empioyed at the County in the Planner IV position. The Union and the County are parties to a
Memorandum
of
Authority (MOA) containing a grievance procedure that culminates in
binding arbitration.
According to the County, MOA Article 9, section 901 states in relevant part:
The provisions
of
this Article are intended to define the normal
work schedule and do qot guarantee a minimum number
of
hours
of work. The County retains its right to relieve employees from
duty because
of
lack
of
work or for other legitimate reasons;
however this does not preclude employees or [ the Union] from
grieving the practical consequences of that action.
however this does not preclude employees or [the Union] from
grieving the practical consequences
of
that action.
On or about November 11, 2010, County Agricultural Commissioner informed Graham that
the County was reducing her hours from 10 to 6 work days per pay period, effective November
29, 2010. This would also mean a commensurate reduction in salary and benefits. The County
did not inform the Union of its decision.
1 The MMBA is codified at Government Code section 3500 et seq. 	The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

LA-CE-663-M
March 24, 2011
Page 2
Afterward, the Union met with the County to discuss the reduction
of
Graham's hours. 	The
County stated that it was not required to negotiate with the Union over either the decision or
the effects
of
the reduction.
Discussion:
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; 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.)
However, an employer does not make an unlawful change
if
its actions conform to the terms of
the parties' agreement. (Marysville Joint Union School District (1983) PERB Decision No.
314 (Marysville).) In Marysville, the Board found that the plain meaning
of
the agreement,
which provided lunch breaks
of
"no less than 30 minutes," permitted the employer to
unilaterally reduce employee breaks from
55
to 30 minutes. Likewise, in Poway Unified
School District (1994) PERB Decision No. 1050, the Board found that an employer may take
unilateral action on a mandatory subject
of
bargaining
if
the language
of
the contract expressly
confers such a right.
In County
of
Ventura (2007) PERB Decision No. 1910-M, the Board interpreted contract
language similar to MOU Article 9, section
901
in the present case, but regarding a different
bargaining unit in the County. 	In that case, the Board recognized that, when interpreting
contract language, it should primarily rely on the plain meaning of the language in the contract.
In that case, the Board considered contract language stating "that a Department/Agency head
may require any employee in his department/agency to temporarily perform service in excess of
the normal schedule when public necessity or convenience so requires." The Board found this
language amounted to a clear and unmistakable waiver of the right to negotiate over overtime
assignments. Similar to the present case, the contact language in County
of
Ventura, supra,
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. (Fire Fighters Union
v.
City of Vallejo (1974) 12 Cal.3d 608.)

LA-CE-663-M
March 24, 2011
Page 3
PERB Decision No. 1910-M, subjected the County's decision to modify hours to the grievance
process.
In this case, the County maintains that MOA, Article 9, section 901 gives the County the
authority to "relieve employees from duty because of lack of work or for other legitimate
reasons[.]" A plain reading of this contract language authorizes the County to reduce the hours
of bargaining unit positions. Accordingly, it appears as though the Union has waived its right
to negotiate over the alleged changes identified in the instant unfair practice charge."
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent of 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 an amended charge or withdrawal is not filed on or before April 8, 2011, PERB will
dismiss your charge.
"As explained above, the language of MOA, Article 9, section 901 was provided to
PERB by the County. The Union does not describe the contents of the MOA except to state
that it contains a grievance procedure that culminates in binding arbitration. PERB may rely
on facts provided by a respondent's position statement where the facts are not in conflict with
allegations provided by the charging party and where the position statement is served on the
charging party. (United Educators of San Francisco (Banos) (2005) PERB Decision No. 1764;
Chula Vista Elementary School District (2003) PERB Decision No. 1557.) If the Union.
disputes this or any other facts discussed in this Warning Letter, it should consider amending
the charge.
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
" A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)
LA-CE-663-M
March 24, 2011
Page 3
PERB Decision No. 1910-M, subjected the County's decision to modify hours to the grievance
process.
In this case, the County maintains that MOA, Article
9,
section
901
gives the County
the
authority to "relieve employees from duty because
of
lack
of
work or for other legitimate
reasons[.]" A plain reading
of
this contract language authorizes the County to reduce
the
hours
of
bargaining unit positions. 	Accordingly, it appears as though the Union has waived its right
to negotiate over the alleged changes identified in the instant unfair practice charge.4
For these reasons the charge, as presently written, does not state a prima facie case.5
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may 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 an authorized agent
of
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 an amended charge or withdrawal is not filed on or before April 8, 2011,6
PERB will
dismiss your charge.
As explained above, the language
of
MOA, Article 9, section 901 was provided to
PERB by the County. 	The Union does not describe the contents
of
the MOA except to state
that it contains a grievance procedure that culminates in binding arbitration. 	PERB may rely
on facts provided by a respondent's position statement where the facts are not in conflict with
allegations provided by the charging party and where the position statement is served on the
charging party. (United Educators
of
San Francisco (Banos) (2005) PERB Decision No. 1764;
Chula Vista Elementary School District (2003) PERB Decision No. 1557.) If the Union.
disputes this or any other facts discussed in this Warning Letter, it should consider amending
the charge.
4
5 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause
of
action and that the
charging party is capable
of
providing admissible evidence in support
of
the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
6 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)

LA-CE-663-M
March 24, 2011
Page 4
LA-CE-663-M
March 24, 2011
Page 4
If you have any questions, please call me at the above telephone number.
Sincerely,
Eric J. Cu
Regional Attorney	Regional Attorney
EC
u:emions, please call me at the above telephone number.
.
EC