Stanislaus Consolidated Fire Protection District (PERB 2231MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STANISLAUS CONSOLIDATED
FIREFIGHTERS, LOCAL 3399,
Charging Party,
V.
STANISLAUS CONSOLIDATED FIRE
PROTECTION DISTRICT,
Respondent.
Case No. SA-CE-711-M
Request for Reconsideration
PERB Decision No. 2231-M
PERB Decision No. 223
la-M
May 23, 2012
Appearances: 	Law Offices
of
William
D.
Ross by William
D.
Ross, Attorney, for Stanislaus
Consolidated Fire Protection District; Wylie, McBride, Platten & Renner by Carol L. Koenig,
Attorney, for Stanislaus Consolidated Firefighters, Local 3399.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration by the Stanislaus Consolidated Fire
Protection District (District)
of
the Board's decision in Stanislaus Consolidated Fire
Protection District (2012) PERB Decision No. 2231-M. The underlying charge filed on
February 9, 2011, alleged that the District violated the Meyers-Milias-Brown Act (MMBA) 1
by: ( 1) engaging in unlawful surface bargaining; (2) unilaterally eliminating a negotiated
contract provision relating to union access rights without satisfying its bargaining obligation;
(3) unilaterally changing a negotiated contract provision relating to "mergers and
consolidations" without satisfying its bargaining obligation; ( 4) unilaterally eliminating a past
practice of allowing the use of union leave time from a "Union Time Bank" to participate in
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

2
union activities, including attendance at city council meetings when "State
of
the District"
addresses were made, without satisfying its bargaining obligation; (5) failing/refusing to
provide relevant and necessary information relating to a promotional hiring; (6) refusing to
promote an employee in retaliation for his protected conduct; (7) interfering with employees'
exercise
of
rights by stating that it was not "wise" to represent members seeking to promote to
management positions; (8) bargaining to impasses a non-mandatory subject
of
bargaining; and
(9) eliminating union access rights and the "Union Time Bank" in retaliation for protected
conduct.
Based on the above charge allegations, the Office
of
the General Counsel took the
following actions. On July 21, 2011, allegations
1,
2, 3, 5, 8 and 9 above were dismissed for
failure to state a prima facie case. On July 25, 2011, a complaint issued on allegations 4, 2 63
and
7.
4 In response to the partial dismissal, Stanislaus Consolidated Firefighters, Local 3 3 99,
(Local 3399) filed an appeal on August 10, 2011, seeking to reverse the dismissal
of
allegations 2 and
9.
	Consequently, neither the allegations encompassed by the complaint (4, 6
and 7) nor the dismissed allegations that were not appealed by Local 3399 (1, 3, 5 and 8) are
currently before the Board itself.
On January 20, 2012, the Board issued its decision reversing the partial dismissal
of
the
charge and remanding it to the Office
of
the General Counsel for issuance
of
an amended
complaint. The Board held that Local 3399 had alleged sufficient facts to state a prima
case that the District's conduct in repudiating Section 20-2 of the parties' memorandum
of
2 Complaint 	4-9.	
,r,r
3 Complaint
,r,r
10-14.
4 Complaint
,T,Tl
5-18.
2

understanding (MOU)5 regarding union access rights constituted a prohibited unilateral change
in the terms and conditions of employment, a per se violation of the duty to meet and confer in
good faith under MMBA section 3505 and PERB Regulation 32603, subdivision (c). 6 Further,
the Board held that the District engaged in discrimination/retaliation and interference in
violation of MMBA section 3506 and PERB Regulation 32603, subdivision (a), when it
repudiated Section 20-2 and abolished the Union Time Bank.
The District requests reconsideration7 of the Board's decision on the following grounds:
(1) the existence of a final and binding arbitration award under the MOU sustaining
Local 3399's grievances concerning the Union Time Bank compels the Board to dismiss the
allegations encompassed within paragraphs 4 through 9 of the complaint and affirm the Office
of the General Counsel's dismissal of allegation 9 as it concerns the Union Time Bank; (2) the
Board's conclusion that the District's repudiation of Section 20-2 of the MOU regarding union
access rights constituted a prohibited unilateral change is belied by the District's participation
in global mediation to resolve, among other disputes, an outstanding grievance concerning the
"removal of MOU Section 20-2," its willingness to hold meetings on District property, its
proposal to integrate a modified version of the provision into the successor agreement and its
offer to meet and confer in February 2011 and on March 10, 2011; and (3) given the District's
willingness to meet and confer over Section 20-2, there is no factual support for the Board's
conclusion that the District's removal of Section 20-2 was retaliatory. Local 3399 opposes the
5 The MOU was effective from July 1, 2006 through June 30, 2010.
6 regulations are codified at California Code of Regulations, 	8,
section 31001 et seq.
7 The District requested, in a single document, reconsideration of PERB Decision
No. 2231-M and PERB Order No. Ad-3 92-M, the latter of which concerns the District's late
filed response to the appeal. The Board's decision herein addresses the District's request for
reconsideration of PERB Decision No. 2231-M only.
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request for reconsideration on the basis that the request fails to set forth adequate grounds for
reconsideration pursuant to PERB Regulation 32410.
The Board has reviewed the District's request for reconsideration and supporting
documentation and Local 3399's response thereto. Based on this review and applying the
relevant law, the Board denies the District's request for reconsideration for the reasons
discussed below.
DISCUSSION
A request for reconsideration of a final Board decision is governed by PERB
Regulation 32410, subdivision (a), which states in pertinent part:
Any party to a decision of the Board itself may, because of
extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date of service of the
decision. . . . [The request] shall state with specificity the
grounds claimed and, where applicable, shall specify the page of
the record relied on. . . . The grounds for requesting
reconsideration are limited to claims that: (1) the decision of the
Board itself contains prejudicial errors of fact, or (2) the party has
newly discovered evidence which was not previously available
and could not have been discovered with the exercise of
reasonable diligence. A request for reconsideration based upon
the discovery of new evidence must be supported by a declaration
under the penalty of perjury which establishes that the evidence:
(1) was not previously available; (2) could not have been
discovered prior to the hearing with the exercise of reasonable
diligence; (3) was submitted within a reasonable time of its
discovery; (4) is relevant to the issues sought to be reconsidered;
and (5) impacts or alters the decision of the previously decided
case.
Because reconsideration may only be granted under "extraordinary circumstances," the
Board applies 	regulation's criteria strictly. (Regents of the University of California (2000)
PERB Decision No. 1354a-H.) A request for reconsideration is not simply an opportunity to
ask the Board to "try again." (Chula Vista Elementary School District (2004) PERB decision
No. 1557a (Chula Vista). 	PERB Regulation 32410, subdivision (a), allows a party to request
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5
reconsideration of a Board decision on only two limited grounds, which are: 	(1) the decision
contains "prejudicial errors of fact"; and (2) the party requesting reconsideration has
discovered new evidence not previously available as supported by a declaration satisfying
stated criteria. These limited grounds for granting a request for reconsideration and the
"extraordinary" nature of a reconsideration proceeding preclude a party from using this process
to reargue or relitigate issues that have already been decided. (Chula Vista; San Bernardino
Teachers Association, CTAINEA (Cooksey) (2000) PERB Decision No. 1387.)
The Union Time Bank
The District argues that the arbitration award concerning the Union Time Bank is newly
discovered evidence warranting the Board's reconsideration of its decision. 8 While the award
was issued on December 1, 2011, the arbitration was conducted on June 17, 2011. Therefore,
the award does not constitute newly discovered evidence.
The District appears to be arguing that the arbitration award precludes PERB from
adjudicating the unfair practice claims raised by the allegations relating to the Union Time
Bank. As the Board has stated, a deferral to arbitration claim is not jurisdictional and therefore
must be raised as an affirmative defense in a timely manner; otherwise, it is waived. (State of
California (Department of Food and Agriculture) (2002) PERB Decision No. 1473-S; East
Side Union High School District (2004) PERB Decision No. 1713 [arbitration deferral claim
raised for the first time on exceptions to a proposed decision is untimely and deemed waived];
State of California (Department of Corrections) (2008) PERB Decision No. 1967-S
5
The District also requests that the Board dismiss allegations 4 through 9 of the
complaint based on the arbitration award. These allegations, however, are not before the
Board. (See PERB Reg. 32640, subd. (c) [Board agent's decision to issue a complaint is not
appealable to the Board itself except in accordance with PERB Reg. 32200, which pertains to
interlocutory orders and rulings on a motion at a hearing].)

[arbitration deferral claim raised for first time at outset of hearing is untimely and deemed
waived].)9
Neither the issuance of the complaint nor the dismissal of the remaining allegations by
PERB' s Office of General Counsel occurred until approximately one month after the
arbitration. The District clearly knew long before the arbitration that the Union Time Bank
grievances were subject to binding and final arbitration. At no time did the District raise the
issue of deferral to grievance arbitration during the charge processing stage of PERB's
proceedings. 10 Raising deferral to arbitration for the first time in a request for reconsideration
is untimely, and therefore waived. I I
In a similar vein, the District also argues that principles of collateral estoppel bar
"relitigation" of issues decided by the arbitrator relating to the Union Time Bank. The
question before PERB is whether the District's elimination of the Union Time Bank was in
retaliation for engaging in the protected activity of filing grievances and/or interfered with
employees' rights under the MMBA. The question before the arbitrator was whether the
District's conduct violated the MOU. These questions are not synonymous. Moreover,
assuming the issues before the arbitrator and PERB were identical, the District has offered no
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.)
10 The powers and duties of a Board agent in processing an unfair practice charge
include placing a charge in abeyance if the dispute is subject to final and binding arbitration
pursuant to a collective bargaining agreement; and dismissing the charge at the conclusion
of the arbitration process unless the charging party demonstrates that the settlement or
arbitration award is repugnant to 	purposes of the applicable statutory scheme. (PERB
Regulation 32620, subd. (b )(6).)
11 In a post-arbitration setting, as here, PERB has jurisdiction over an unfair practice
charge claiming that a final and binding arbitration award rendered pursuant to a collective
bargaining agreement is repugnant to the purposes of the MMBA. (PERB Reg. 32661,
subd. (a).) No such unfair practice charge has been filed in this matter.
6

7
authority that PERB is obligated to give collateral estoppel effect to a decision by an arbitrator.
(See Regents of the University of California (Berkeley) (1985) PERB Decision No. 534-H,
administrative law judge's proposed decision, pp. 44-45, fn. 14.)
Section 20-2
That mediation occurred in an effort to resolve grievances does not constitute newly
discovered evidence warranting the Board's reconsideration of its decision. 	Subsequent
mediation efforts simply are not relevant to the issue of whether the District's repudiation of
Section 20-2 at an earlier point in time constituted a prohibited unilateral change, which is a
per se violation of the duty to meet and confer in good faith under the MMBA. Neither are
they relevant to the issue of whether the District's actions were taken in retaliation for the
protected activity of filing grievances and/or whether the District's actions interfered with
employees' rights under the MMBA.
The District argues that the Board's decision is premised on an incorrect understanding
that the District refused to bargain in good faith and refused to permit Local 3399 to hold
meetings on District property. The District claims that the Board's misunderstanding
constitutes prejudicial errors of fact warranting the Board's reconsideration of its
determinations that the allegations regarding the District's repudiation of Section 20-2 are
sufficient to state a prima facie per se violation of the duty to meet and confer in good faith
and a prima facie case 	discrimination/retaliation and interference. The District confuses
prejudicial errors of facts with factual disputes. Local 3399 disputed the District's factual
assertions regarding 	own conduct with specific factual allegations to 	contrary.
reviewing a Board agent's dismissal of a charge for failure to state a prima facie case, the
7

Board assumes that the essential facts alleged in the unfair practice charge are true. (San Juan
United School District (1977) EERB 12 Decision No. 12.)
Finally, the District asserts that it was a prejudicial error of fact for the Board to omit
reference in its decision to the District's offer to meet and confer over Section 20-2 in February
2011 and on March 10, 2011. As Local 3399 points out, the prima facie allegations establish
that the District's conduct constituting the prohibited unilateral change occurred several
months prior to the District's offer to meet and confer. As the Board has held, the later
reversal or rescission of a unilateral action or subsequent negotiation on the subject of a
unilateral action does not excuse a violation. (County of Sacramento (2008) PERB Decision
No. 1943-M; Amador Valley Joint Union High School District (1978) PERB Decision
No. 74.) 13 Accordingly, because the District's subsequent offers to meet and confer in 2011
cannot cure the alleged unlawful unilateral change, the omission of these facts from the
Board's decision does not constitute a prejudicial error of fact.
In sum, we find no basis for granting the District's request for reconsideration.
Prior to January 1978, 	was known as the 	Relations
Board or EERB.
13 Unilateral actions are disfavored for the following reasons: (1) such action has a
destabilizing and disorienting impact on employer-employee relations; (2) such action
derogates the representative's negotiating power and ability to perform as an effective
representative in the eyes of the employees and undermines exclusivity; (3) such action
denigrates negotiations under the applicable statutory scheme; and ( 4) such action unfairly
shifts community and political pressure to employees and their organizations, and at the same
time reduces the employer's accountability to the public. (See County of Sacramento, supra,
PERB Decision No. 1943-M; San Mateo Community College District (1979) PERB Decision
No. 94.)
8

9
ORDER
The request
of
the Stanislaus Consolidated Fire Protection District for reconsideration
of
the Board's decision in Stanislaus Consolidated Fire Protection District (2012) PERB
Decision No. 2231-M is hereby DENIED.
Members Dowdin Calvillo and Huguenin joined in this Decision.
9