City of Yuba City (PERB 2603M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PUBLIC EMPLOYEES UNION LOCAL 1,
Charging Party,
v.
CITY OF YUBA CITY,
Respondent.
Case No. SA-CE-919-M
PERB Decision No. 2603-M
December 12, 2018
Appearances: Leonard Carder, by Arthur Liou, Attorney, for Public Employees Union
Local 1; Best, Best and Krieger, by Stacey N. Sheston and Ashley E. Ratliff, Attorneys, for
City of Yuba City.
Before Banks and Winslow, Members.
DECISION1
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Public Employees Union Local 1 (Local 1) to a proposed
decision of a PERB administrative law judge (ALJ). Local 1’s exceptions challenge the ALJ’s
dismissal of the complaint’s allegations that the City of Yuba City (City) violated the Meyers-
Milias-Brown Act (MMBA)2 by: (1) discriminating or retaliating against Local 1-represented
employees when it imposed the terms of its last, best, and final offer (LBFO); and (2) failing to
hold a public hearing regarding the parties’ impasse before imposing its LBFO.3 Having
1 Pursuant to Government Code sections 3509, subdivision (a), and 3541.3,
subdivision (k), the Board has delegated this case for decision to a two-member panel. Unless
otherwise specified, all further statutory references are to the Government Code.
2 The MMBA is codified at Government Code section 3500 et seq.
3 Neither party has excepted to any other aspect of the proposed decision, in particular
the ALJ’s dismissal of the complaint’s allegations that the City: (1) failed to participate in

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reviewed the proposed decision and the entire record in light of Local 1’s exceptions and the
City’s response, we deny the exceptions and affirm the dismissal of these allegations.
BACKGROUND
Local 1 has represented the City’s Miscellaneous Unit since 2012, when it decertified
the Yuba City Employees Association (Association).
In 2006, the City and the Association negotiated a memorandum of understanding
(MOU) with an expiration date of June 30, 2011. The MOU required annual salary increases
through 2010, a full employer-paid member contribution (EPMC) to each employee’s
CalPERS pension, and payment by the City of 80 percent of increases in health benefit costs,
with employees paying the remaining 20 percent (80/20 split).
Beginning in 2009, with the City facing increasing deficits as a result of the economic
recession, the City and the Association agreed to a number of cost-saving measures, including
deferring and eventually eliminating the 2009 and 2010 salary increases, and implementing
two furlough programs: (1) a “base” furlough, in which the City closed its offices every other
Friday and reduced employee work hours and salaries by 5 percent; and (2) a “banked”
furlough program, which reduced salaries by another 5 percent in exchange for banked leave
time. The City and the Association also extended the MOU through June 2014.
After Local 1 decertified the Association in 2012, the City and Local 1 in September
2012 entered into a “Successor Agreement,” which incorporated the MOU and all amendments
and side letters previously agreed to by the Association.
impasse procedures in good faith; (2) imposed an unlawful pension contribution requirement;
and (3) unilaterally changed its furlough policy. These allegations are not before the Board.
(PERB Reg. 32300, subd. (c) [PERB Regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.].)
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By early 2014, the City’s finances had begun to improve, but the City still had a budget
deficit and described its financial outlook as “far from rosy.” In February 2014, the City held a
meeting with the representatives of each of its seven bargaining units, all of whose contracts
were set to expire in June 2014, to explain its financial condition.4 The City also announced its
three goals for negotiations: (1) end furloughs and restore City services, (2) eliminate the
EPMC, (3) and balance the City’s operating budget by 2018.
Local 1 and the City began negotiations in March 2014. The City’s chief negotiator was
Patrick Clark (Clark); Local 1’s was Gary Stucky (Stucky). The City opened with a one-year
proposal, which it also presented to its other units, which included: (1) requiring employees to
pay 50 percent of normal pension cost, (2) eliminating the base furlough, (3) capping healthcare
premiums at the current contribution rate, (4) eliminating the me-too clause, and (5) eliminating
layoff protections. None of the bargaining units was interested in this proposal.
The City then submitted a two-year proposal to each bargaining unit. The economic
terms were similar for each unit, including: (1) phasing in payment of pension contributions
over two years, with employees eventually paying 50 percent of normal cost, (2) eliminating the
base furlough the first year and the banked furlough the second year, and (3) splitting healthcare
premiums 80/20.
As negotiations proceeded, the City’s proposals continued to include one- and two-year
options. Local 1 focused exclusively on the City’s two-year proposal, which became “richer” as
negotiations continued. Eventually, the City’s two-year proposals included expiration dates that
4 The City’s seven bargaining units are: Police, Police Sergeants, Fire, Fire Managers,
Miscellaneous, Mid-Managers, and First-Level Managers. Only the Police, Police Sergeants,
Fire, and Miscellaneous Units are exclusively represented. Although not exclusively
represented, the other units meet and confer with the City over terms and conditions of
employment. The City unilaterally sets terms for its Executive Services Employees
(department directors) and its city manager.
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corresponded to dates of City Council meetings. Clark explained that some of his proposals
were outside the City’s goals, but he was willing to recommend that the City Council accept
them to reach an agreement. Clark testified that he included the expiration dates so that he could
give the City Council an idea whether the parties were close to a tentative agreement. The
Local 1 bargaining team recognized that the dates correlated with City Council meetings. The
parties discussed the effect of the expiration dates and understood that if a two-year proposal was
not accepted by the expiration date, the City’s position reverted back to its one-year proposal.
In March and April 2014, the City learned that its CalPERS contributions and workers’
compensation premiums would increase more than anticipated. The City informed Local 1 of
resulting changes to its budget projections. At some point, the City realized that these
unanticipated costs would prevent it from achieving its goal of balancing the budget by 2018.
On May 5, 2014, Local 1 made its first proposal, which included a 12 percent salary
increase. The City rejected this proposal, explaining that it could not accept a salary increase in
light of its fiscal condition.
On July 15, 2014, Stucky appeared at a City Council meeting and asked the City to
reconsider its bargaining position and agree to a fair contract. Several Local 1 members attended
the City Council meeting to protest the City’s bargaining position, and Local 1 and its members
followed up with a publicity campaign aimed at garnering support for its position in negotiations.
On September 23, 2014, the City presented Local 1 with a revised two-year proposal,
with the same key terms offered in its original proposal except for the addition of two floating
holidays. The City also presented its one-year proposal, unchanged. After a short caucus,
Local 1 declared impasse. Clark testified that he was surprised by the impasse declaration, but
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he agreed that negotiations were deadlocked and joined in Local 1’s declaration. At the time, the
City’s two-year proposal was still on the table, set to expire on October 6, 2014.
The City’s local rules do not provide for mediation, but Stucky and Clark agreed it might
be helpful. Clark prepared and sent to Stucky a chart identifying the disputed terms under both
the one-year and two-year proposals. The parties met with a mediator on two dates in
November, but did not reach agreement.
On February 10 and 12, 2015, Local 1 and the City participated in a factfinding hearing.
During the hearing, Clark identified the City’s one-year proposal as its LBFO. He stated the
one-year option was the only proposal that remained on the table because the two-year proposal
had expired on October 6, 2014. Stucky testified that the factfinding hearing was the first time
the City had identified the one-year proposal as its LBFO.
The factfinding report issued on March 10, 2015, finding, among other things, that the
City had the financial ability to end furloughs without requiring employees to contribute toward
their pensions. The report was provided to the City Council, and copies were made available to
the public at City Hall on the City’s website. Neither Local 1 nor the City requested to meet to
discuss the report.
On March 10, 2015, Stucky mailed a proposal for a two-year agreement to Clark and City
Manager Steve Kroeger. The proposal included most of the terms in the City’s previous two-
year proposal to Local 1, but with the addition of a $1,000 lump sum payment and a 7 percent
salary increase.
Clark informed Stucky that the City had rejected Local 1’s proposal because it could not
accept any salary increase.
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On March 31, 2015, Stucky wrote to City Human Resources Director Natalie Springer
(Springer), asserting that certain provisions of the City’s local rules, which stated that employees
were subject to discipline for striking, were unlawful. He requested that the City immediately
strike these provisions from the local rules. Stucky also reported that managers were telling
employees they could be fired for participating in a strike. Springer responded that the local
rules were outdated, and acknowledged that the City needed to making revisions. Springer also
stated she would investigate any improper threats brought to her attention, and that the City
would issue a communication to “clarify any misunderstandings about strike activity.”
On April 24, 2015, Stucky sent a letter informing Clark that the Local 1 membership had
voted the previous day to authorize a strike, but had not yet set a strike date. Stucky also
complained that the City had not issued an LBFO at the table but had identified its pre-impasse
one-year proposal as its LBFO during factfinding proceedings. Stucky closed by requesting a
written, detailed LBFO that Local 1 could present to its members.
On April 28, 2015, Clark responded that, as the City had previously asserted during
mediation and factfinding, the one-year proposal submitted on September 23, 2014 was the only
active proposal, and was therefore the City’s LBFO.
On May 4, 2015, Stucky sought further clarification of the City’s LBFO, while disputing
that the one-year proposal had been discussed during mediation or factfinding.
In early May 2015, the City issued the agenda for the May 19 City Council meeting. The
agenda included a closed session followed by a “[r]egular [m]eeting,” at which the public was
“welcome and encouraged to participate,” with “[p]ublic comment . . . taken on items listed on
the agenda when they are called.” Item 13 on the agenda for the regular meeting was titled
“Local 1 Imposition,” and included a summary of the staff recommendation that the Council
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“[a]dopt a Resolution implementing the City’s Last, Best, and Final Offer to Public Employees’
Union, Local 1 effective June 13, 2015.” The staff report attached to the agenda described the
parties’ bargaining and impasse history, including mediation and factfinding, and included the
terms of the City’s LBFO. It also estimated the fiscal impact of imposing the LBFO as a savings
to the City of $67,560 annually.
Stucky regularly received City Council meeting agendas, and reviewed attached materials
on the City’s website. He testified that he had sufficient time to review the agenda materials for
the May 19 meeting, discuss them with Local 1 leaders, and prepare for the Council meeting.
On May 14, 2015, Local 1 provided the City with notice of its intent to request injunctive
relief from PERB concerning the local rules prohibiting employees from striking.5
Before the May 19, 2015 City Council meeting, Local 1 members participated in
informational picketing near City Hall. During the meeting, Springer presented the Local 1
imposition agenda item, describing the parties’ negotiations and impasse proceedings, and
summarizing the proposal to implement the LBFO. The Mayor then “open[ed] up the public
hearing” and invited public comment. Stucky spoke and opposed implementation of the
proposed terms. He asked the Council to either send the parties back to the bargaining table or
impose terms similar to the two-year agreements reached with other bargaining units. The
Mayor asked Stucky if he was making a proposal. Stucky replied that he did not have
authority from his membership to make such a proposal, and that he did not believe in
negotiating in public. The Mayor then closed the public comment period, and the City Council
5 After discussions with Local 1, the City on May 22, 2015, notified Miscellaneous Unit
employees that no disciplinary action would be taken for participating in a protected strike or
other concerted activities. Local 1 withdrew its notice of intent to seek injunctive relief.
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voted to adopt a resolution implementing the LBFO terms effective June 13, 2015. The Council
also directed staff to return to the bargaining table with Local 1 as soon as possible.
Resolution of Bargaining with Other Unites
Before reaching impasse with Local 1, the City reached agreement with three of its other
units, as follows. On July 15, 2014, the City Council approved an agreement with the Mid-
Managers that: (1) eliminated the base furlough immediately, and the banked furlough in
July 2015; (2) phased out the EPMC over two years; (3) split total healthcare premiums 80/20;
and (4) provided two floating holidays. On September 16, 2014, the City Council approved the
same terms for the Executive Services Employees, and approved two-year agreements for the
Police and Police Sergeants, with the same terms on furloughs, EPMC, and healthcare premiums,
but with the addition of a 3.5 percent salary increase to address recruitment and retention issues
and a $1,000 lump sum payment to each employee.
Shortly after reaching impasse with Local 1, the City Council on November 4, 2014
approved a two-year agreement with the First-Level Managers. The key terms mirrored those
agreed to by the Mid-Managers, except for the addition of a $1,000 lump sum payment.
On January 20, 2015, the City Council imposed terms on the Fire Unit, which:
(1) eliminated furloughs; (2) eliminated EPMC (thus requiring employees to pay the full member
contribution of 9 percent); (3) capped healthcare benefits at the 2014 contribution level; and
(4) reduced staffing from three-person to two-person stations. The City estimated that these
terms would save the City $810,000 per year. Before the City imposed terms, the Fire Unit did
not request factfinding or threaten to strike,6 but Fire Unit members engaged in a community
6 Employees in the Fire Unit were likely prohibited from striking. (Lab. Code, § 1962.)
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outreach campaign to seek public support for its bargaining position, using social media,
“walking the City,” and publicizing a “no confidence” vote in the Fire Chief.
On March 3, 2015, the City Council approved a two-year agreement with the Fire
Managers, with the same terms agreed to by the First-Level Managers.
The City estimated that its two-year agreements with the various bargaining units would
increase its costs by $1.7 million over two years.
Resumption of Negotiations with Local 1
After the City imposed terms on Local 1, the parties resumed negotiations in August
2015 and reached agreement on a two-year MOU effective from October 20, 2015 through
June 30, 2017. In addition to ending all furloughs, the terms included: (1) a 2 percent salary
increase; (2) a $1,500 lump sum payment; (3) elimination of EPMC; (4) an 80/20 split of total
healthcare premiums; and (5) two floating holidays. Certain classifications received call-out pay,
12-hour shift schedules, and certification pay for maintaining required certificates.
Around the same time, the City sought to extend the contracts of its other bargaining
units by one year. The City offered those units a 2 percent salary increase and a $1,500 lump
sum payment. The Mid-Managers Unit received an additional $1,000 lump sum payment, which
it had not received in July 2014 when it was the first group to agree to a two-year contract. The
City Council resolution approving these extension agreements recognized a disparity among the
groups that had previously reached agreement with the City, and stated its intent that “all
bargaining units that negotiated a . . . contract in 2014” were “to receive a $1000 nonPERSable
stipend.”
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DISCUSSION
I. 	Discrimination
The complaint alleges that the City discriminated against Local 1-represented employees
for various protected activities “by implementing a last, best, and final offer that included terms
and conditions of employment that were worse than terms and conditions of employment agreed
to by, or imposed upon, other employee groups and bargaining units.” The ALJ analyzed this
allegation under Campbell Municipal Employees Association v. City of Campbell (1982)
131 Cal.App.3d 416 (Campbell), and found it lacking. Local 1 argues that the ALJ reached the
wrong result. We disagree.
Campbell
As we recently explained, “a prima facie case is established under Campbell by
‘discrimination in its simplest form,’ i.e., conduct that is facially or inherently discriminatory,
such that the employer’s unlawful motive can be inferred without specific evidence.” (Los
Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (Los Angeles
Superior Court), emphasis added.) If the employer has engaged in this type of conduct, it
bears the burden of justifying its conduct by coming forward with a legitimate business
justification. (Campbell, supra, 131 Cal.App.3d 416, 424.) On the other hand, if the
employer’s conduct is not facially or inherently discriminatory, the charging party must prove
the employer’s unlawful motive under Novato Unified School District (1982) PERB Decision
No. 210 (Novato). (Los Angeles Superior Court, supra, at p. 17.)
Common examples of facially or inherently discriminatory conduct include:
(1) providing different pay, benefits, or other working conditions based explicitly on union
membership or other protected activity; and (2) changing policies in response to protected
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activity, where the operative comparison is not between two different groups of employees, but
between an employer’s policies before and after the exercise of protected rights. (Los Angeles
Superior Court, supra, PERB Decision No. 2566-C, pp. 14-15.)
Campbell, supra, 131 Cal.App.3d 416, illustrates both types of discriminatory
treatment. In that case, the employer and the union had reached agreement on most issues for
an MOU, including a retroactive date for salary and benefit increases. Having reached impasse
over two other issues, the parties engaged in impasse resolution procedures, but were unable to
resolve their dispute. The employer then imposed terms, which included all of the parties’
tentative agreements—except that the salary increase was retroactive to a less favorable date
than the agreed-upon date, and less favorable than the date provided to other unions that had
not gone to impasse. These facts led the court to draw a “strong” inference “that the
motivation for that discrimination was to ‘punish’ [the union] and its members for utilizing
[the] impasse procedure.” (Id. at p. 424.)
Los Angeles County Employees Association v. County of Los Angeles (1985) 168
Cal.App.3d 683 (County of Los Angeles) reached a similar result. There, the employer had an
acknowledged practice of negotiating fringe benefits with a coalition of unions, and
implementing any changes to those benefits as to all of the participating unions at the same
time. Yet it departed from that practice and implemented the fringe benefit changes only for
those unions that had already reached a separate agreement on wages. The court concluded
that the employer’s intention was to punish the unions who had not yet reached a wage
agreement. (Id. at p. 689.)
But not all differences in treatment give rise to an inference of discrimination under
Campbell. In Los Angeles Superior Court, supra, PERB Decision No. 2566-C, for instance,
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we noted that preferential treatment in favor of a group of represented employees, at the
expense of unrepresented employees, would not necessarily be inherently discriminatory. This
was because “[i]t cannot be assumed that an employer that treats represented employees better
than unrepresented employees does so to punish unrepresented employees and encourage them
to organize. The more logical inference is that the employer is yielding to the bargaining
power of its represented employees.” (Los Angeles Superior Court, supra, PERB Decision
No. 2566-C, p. 16.)
A similar concern applies to claims of disparate treatment between groups of
represented employees. Though all may be represented, differences in bargaining power and
bargaining strategy are likely explanations for different results at the bargaining table. And
while the Board has recognized that an employer has a legitimate interest in maintaining parity
or equity across its bargaining units (Anaheim Union High School District (2016) PERB
Decision No. 2504, p. 14), it has never held that our statutes require parity. To the contrary,
we recently noted, “an employer comes ‘perilously close’ to bad faith when it insists that it
will not under any circumstances agree to different terms for different employee groups.”
(City of San Ramon (2018) PERB Decision No. 2571-M, p. 8, fn. 10.) Thus, we must tread
carefully before inferring that different treatment of different represented groups is facially or
inherently discriminatory.
The facts of this case give us no cause to infer, without more, that the City intended to
discriminate against the Miscellaneous Unit on the basis of protected activity. The City made
consistent efforts to treat its bargaining units the same. To most of them, including Local 1, it
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presented the same one- and two-year contract proposals.7 Critically, it made those proposals
to Local 1 and the other units before Local 1 went to the City Council to protest the City’s
bargaining positions, declared impasse, participated in mediation and factfinding, complained
about the City’s no-strike regulation, gave notice of intent to seek injunctive relief, or
threatened to strike. And the only units that obtained the more favorable two-year terms were
the units that agreed to them. Thus, rather than discrimination for protected activity, the most
obvious explanation for the City’s disparate treatment of the Miscellaneous Unit is Local 1’s
decision not to agree to the more favorable two-year terms.
Local 1 complains that the City failed to specify whether its LBFO was its one-year or
its two-year proposal, thereby leaving unclear which proposal the City would ultimately seek
to impose. We are skeptical that Local 1 could have reasonably believed that the City would
impose the terms of its two-year proposal if the parties failed to reach agreement. The City’s
two-year proposal, unlike its one-year proposal, had an express expiration date, of which
Local 1 was well aware, and which had lapsed before factfinding. Moreover, there is no
7 The only units that received different proposals were Police, Police Sergeants, and
Fire. The Police and Police Sergeants were the only units to receive wage increases, which
were justified on recruitment and retention grounds, and Local 1 does not claim that it was
discriminatory for the City to withhold those wage increases from Local 1.
As for the Fire Unit, the record is less than clear, but suggests that the City’s proposals
to the Fire Unit did not mirror its proposals to the other units, because the terms imposed on
the Fire Unit were different from those imposed on the Miscellaneous Unit. The ALJ
compared the City’s treatment of the Miscellaneous Unit with its treatment of the Fire Unit,
and determined that because the Miscellaneous Unit fared better, there was insufficient
evidence of discrimination under Campbell, supra, 131 Cal.App.3d 416. In its exceptions,
Local 1 argues that this comparison is not dispositive because it could be the case that the City
also discriminated against the Fire Unit, which engaged in some protected activity, short of
requesting factfinding or threatening to strike. Rather, Local 1 maintains, the relevant
comparison is between the Miscellaneous Unit and the units that reached two-year agreements.
We agree, and therefore need not decide whether the Miscellaneous Unit or the Firefighters
Unit was treated less favorably.
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requirement that an employer impose its LBFO at all (County of Tulare (2015) PERB Decision
No. 2461-M, p. 17; City of Clovis (2009) PERB Decision No. 2074-M, p. 5, fn. 5), meaning
that even if the two-year proposal had been the City’s LBFO, the City could have chosen to
maintain the status quo rather than give the Miscellaneous Unit the benefit of the two-year
proposal Local 1 had rejected (a result that still would have been discriminatory according to
Local 1’s theory).
But even if Local 1’s uncertainty about the City’s LBFO had been reasonable, Local 1
had every opportunity to clear up that confusion at the bargaining table before declaring
impasse. And, in any event, Local 1’s confusion concerning the City’s pre-impasse position
does not lead us to infer that the City decided to treat Local 1 less favorably only after it
engaged in protected conduct.
In other words, Campbell, supra, 131 Cal.App.3d 416, and County of Los Angeles,
supra, 168 Cal.App.3d 683, on which Local 1 relies, are distinguishable. In both cases, there
was no question that the employer adopted a position that was less favorable to the union after
the protected activity occurred.
We would reach a different conclusion if the City, after Local 1 invoked impasse
procedures, had refused to agree to the type of two-year agreement most of the other units
reached. That never happened because Local 1 never expressed a willingness to agree to those
terms at any time before imposition. After factfinding, Local 1 made a two-year proposal that
included, in addition to the terms agreed to by most of the other units, a 7 percent wage
increase to offset the increased pension contributions. And during the City Council hearing,
Local 1 argued that the Council should impose the City’s two-year proposal, but expressly
declined to present that as an offer.
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Because Local 1 rejected the City’s more favorable two-year proposal of its own
volition, the City’s refusal to impose the terms of that proposal is not inherently or facially
discriminatory. (Cf. County of Tulare, supra, PERB Decision No. 2461-M, p. 16 [“Having
passed up an opportunity to agree to ‘an objectively beneficial’ proposal, [the union] cannot
now complain that it was surprised by the [employer’s] entirely reasonable decision not to
impose something that [the union] repeatedly said it was not interested in”]; see also American
Ship Bldg. Co. v. NLRB (1965) 380 U.S. 300, 313 [“there is nothing in the [National Labor
Relations] Act which gives employees the right to insist on their contract demands, free from the
sort of economic disadvantage which frequently attends bargaining disputes”].) Local 1
therefore failed to state a prima facie case under Campbell, supra, 131 Cal.App.3d 416.
Novato
Although Local 1 argues its case exclusively under the Campbell framework, it points
to what it claims is evidence of the City’s unlawful motive. We therefore consider whether
Local 1 has established a prima facie case under Novato, supra, PERB Decision No. 210. (Los
Angeles Superior Court, supra, PERB Decision No. 2566-C, p. 17.) To do so, Local 1 must
prove that: (1) the Miscellaneous Unit exercised rights under the MMBA; (2) the City had
knowledge of the exercise of those rights; (3) the City took adverse action against the
Miscellaneous Unit; and (4) the City took the adverse action because of the exercise of those
rights. (Novato, supra, at pp. 6-8.) The first three of these elements are not subject to dispute,
so we focus on the fourth, unlawful motive.
Unlawful motive may be proven “by either direct or circumstantial evidence, or a
combination of both.” (Omnitrans (2010) PERB Decision No. 2121-M, p. 10.) When relying
on circumstantial evidence, the charging party must prove: (1) close timing between the
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protected activity and the adverse action; and (2) some other facts indicating an unlawful
motive, such as disparate treatment, departure from established procedures, a cursory
investigation, or providing either no explanation for the action or multiple, contradictory
explanations. (Monterey Peninsula Unified School District (2014) PERB Decision No. 2381,
pp. 29-30.)
The facts establish close timing between Local 1’s protected conduct and imposition of
the City’s LBFO, but no other evidence of unlawful motive. Local 1 argues there is such
evidence in the inconsistency between the terms imposed on Local 1 and “the City’s stated
intent of restoring furloughed services.” We disagree. First, the City did restore some
furloughed services when it imposed its LBFO on the Miscellaneous Unit. It ended the base
furlough, which accounted for half of the furloughs. Second, even the City’s two-year
proposal did not call for an immediate end to furloughs; instead, it would have phased them out
over two years. Third, even if there was some inconsistency between the imposed terms and
the City’s goal of ending furloughs, that inconsistency preceded Local 1’s protected activity,
when the City first made its one-year proposal calling for only a partial end to furloughs. The
pre-existing inconsistency cannot supply evidence of unlawful motive. (See Jurupa Unified
School District (2015) PERB Decision No. 2420, p. 17 [employer’s alleged violations of
Education Code, which occurred both before and after employee engaged in protected activity
did not indicate unlawful animus].)
Local 1 also claims there is evidence of unlawful motive in the City’s decision to grant
the Mid-Managers unit a $1,000 lump sum payment in 2015, as part of an agreement to extend
its MOU for an additional year. As the first group to reach agreement on a successor MOU, the
Mid-Managers Unit did not receive that payment. In granting this payment, the City Council
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stated that its intent was that “all bargaining units that negotiated a . . . contract in 2014” were “to
receive a $1000 nonPERSable stipend.” Local 1 argues that this statement shows an intention to
reward the units that settled and punish the Miscellaneous Unit for declaring impasse, going to
factfinding, and threatening to strike. We view it differently. On its face, the resolution does not
reward the Mid-Managers Unit for refraining from declaring impasse and going to factfinding.
Rather, it achieves parity among the units that successfully negotiated a successor agreement in
that round of bargaining, something Local 1 was unable to do. There is no evidence that Local 1
could not have obtained the $1,000 lump sum if it had successfully reached agreement after
going through factfinding and threatening to strike.8 Therefore, we conclude that the City’s
decision to grant the lump sum to the Mid-Managers Unit is not evidence of unlawful motive.
Lacking evidence of unlawful motive, Local 1 has failed to prove a prima facie case of
discrimination. We therefore affirm the dismissal of the complaint’s discrimination allegation.
II. 	Failure to Hold a Public Hearing
Local 1 also excepts to the ALJ’s dismissal of the allegation that the City failed to hold
a public hearing regarding its impasse with Local 1, as required by MMBA section 3505.7.
MMBA section 3505.7 provides, in relevant part, that after completing any applicable
impasse procedures, and no earlier than 10 days after the parties have received the factfinding
report, “a public agency that is not required to proceed to interest arbitration may, after holding
a public hearing regarding the impasse, implement its last, best, and final offer, but shall not
implement a memorandum of understanding.” We have previously interpreted section 3505.7’s
bar on imposing a memorandum of understanding (City of San Ramon, supra, PERB Decision
8 Despite the resolution’s reference to units that negotiated a contract in “2014,” the City
Council approved terms including the $1,000 stipend on March 3, 2015, for the Fire Managers
Unit.
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No. 2571-M, pp. 13-14; Fresno County In-Home Supportive Services Public Authority (2015)
PERB Decision No. 2418-M, pp. 21-22, fn. 10; City of Santa Rosa (2013) PERB Decision
No. 2308-M, p. 5), and we have determined that section 3505.7 and the other MMBA provisions
concerning factfinding impose a duty to consider the factfinding report in good faith (City of
Davis (2018) PERB Decision No. 2582-M, pp. 26-27). We have not yet considered the public
hearing requirement as a per se or standalone violation of the statute.
Local 1 argues that the City violated section 3505.7 by identifying the agenda item on
the City Council’s May 19, 2015 meeting as “Local 1 Imposition,” rather than as a public
hearing regarding the impasse, and by focusing on the need to impose terms rather than on the
issues in dispute between the parties. We disagree. As the ALJ found, the agenda and staff
report considered by the City Council clearly described the parties’ bargaining history and their
impasse, and it notified the public that the parties had reached impasse and exhausted all
applicable impasse procedures. The ALJ also found that Stucky admitted that he had received
the agenda, reviewed the materials, discussed the matter with Local 1 leaders, and had an
opportunity to prepare for his presentation at the public meeting. Moreover, the Local 1
Imposition item appeared on the public portion of the meeting agenda, which welcomed public
participation and specified that public comment would be received when the agenda items
were called. Finally, during the City Council meeting, the Mayor “open[ed] up the public
hearing,” after the City staff presentation, and Stucky addressed the City Council on the terms
proposed to be implemented and on the parties’ negotiations. In substance, this was a public
hearing regarding the impasse.
Local 1 also argues that the City did not intend to hold a public hearing regarding the
impasse because: (1) the “Local 1 Imposition” item did not appear on the agenda where public
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hearings are required to appear per the City ordinance governing City Council meetings; and
(2) the City failed to provide adequate notice of a public hearing concerning the impasse under
the Ralph M. Brown Act (Brown Act).9 Local 1 recognizes, of course, that the Board does not
enforce the City ordinance,10 or the Brown Act, and the City’s compliance with those laws is
therefore not our concern. For purposes of interpreting MMBA section 3505.7, it is enough to
conclude—as we do—that the City adequately informed the public that the City Council would
be considering imposition of the City’s LBFO, and gave an opportunity for public comment.
Neither the City’s failure to specify that an item on its public meeting agenda was a “public
hearing,” nor its failure to use the word “impasse” on the agenda is sufficient to establish a
violation of section 3505.7’s public hearing requirement. (Cf. City of Salinas (2018) PERB
Order No. Ad-457-M, p. 5.)
While the legislative history of MMBA section 3505.7, as amended by Assembly
Bill 646 does not reveal the extent of the “public hearing” required, it is safe to assume that
any perfunctory “going through the motions” to hasten imposition on an LBFO is not what the
legislature had in mind. At a minimum, the employer must provide adequate notice to the
public that it intends to consider imposing terms and conditions on employees, and to allow
public comment concerning the proposed imposition. Those minimums were met here.11
9 The Brown Act is codified at section 54950 et seq.
10 The ordinance in question is a general one applying to all City Council meetings, and
is not a rule or regulation for the administration of employer-employee relations adopted in
accordance with MMBA section 3507.
11 Even where those minimums are met, the manner in which the public hearing
proceeds, statements made by the employer’s representatives and governing body during the
hearing, and the decision ultimately imposed may be evidence of whether the employer has
acted with the requisite good faith during negotiations and impasse procedures. (See City of
Davis, supra, PERB Decision No. 2582-M, pp. 26-27.) Here, however, Local 1 has not
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Because the City satisfied section 3505.7’s public hearing requirement, we affirm the
ALJ’s dismissal of that allegation.
ORDER
The complaint and unfair practice charge in Case No. SA-CE-919-M are hereby
DISMISSED.
Member Banks joined in this Decision.
excepted to the ALJ’s dismissal of the allegation that the City failed to participate in good faith
in impasse procedures, nor does it otherwise argue that the City’s conduct of the public hearing
evidences bad faith.
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