City of San Diego (PERB 2747M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA PUBLIC, PROFESSIONAL
AND MEDICAL EMPLOYEES, TEAMSTERS
LOCAL 911,
Charging Party,
v.
CITY OF SAN DIEGO,
Respondent.
Case No. LA-CE-1229-M
PERB Decision No. 2747-M
October 6, 2020
Appearances: Gilbert & Sackman by Joshua Adams, Attorney, and Neil M. Sholander,
Attorney/Business Representative, for California Public, Professional and Medical
Employees, Teamsters Local 911; Office of the City Attorney by Joan F. Dawson,
Deputy City Attorney, for City of San Diego.
Before Banks, Shiners, and Krantz, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) for a decision based upon the evidentiary record from a hearing
before an administrative law judge (ALJ). California Public, Professional and Medical
Employees, Teamsters Local 911 (Teamsters or Union) filed the underlying unfair
practice charge against the City of San Diego (City), alleging that the City violated the
Meyers-Milias-Brown Act (MMBA) and PERB Regulations.1
1 The MMBA is codified at Government Code section 3500 et seq. Unless
otherwise specified, all further statutory references are to the Government Code.

2
The parties initially had a dispute under their Memorandum of Understanding
(MOU). When the City changed a longstanding policy governing the routing of
emergency service calls, the Union filed a grievance, held a press conference, and
petitioned the City Council to reverse the change. The parties then negotiated a
grievance settlement requiring the Union to withdraw its grievance, the City to rescind
its policy change, and both parties to negotiate about the policy. The Union alleges
that, in the wake of executing the grievance settlement, the City violated the MMBA in
several respects. Specifically, the operative amended complaint in this matter alleges
that the City: (1) bargained in bad faith while engaging in negotiations required under
the grievance settlement; (2) retaliated against the Union and employees it represents
for their protected activities; and (3) sent three e-mails that constituted unlawful
interference with MMBA rights. The City denies each of these claims.
We have reviewed the entire administrative record and considered the parties’
arguments in light of applicable law. For the reasons explained below, we find that the
Union established that two of the three challenged e-mails interfered with protected
rights, but the Union established neither its bad faith bargaining claim nor its retaliation
claims.
PROCEDURAL HISTORY
The Union filed the underlying charge on September 11, 2017. The City
responded on November 22, 2017, and PERB’s Office of the General Counsel issued
a complaint against the City on May 8, 2018. The City answered the complaint on
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.

3
May 23, 2018. In its answer, the City denied the material allegations and raised
multiple affirmative defenses.
After unsuccessful efforts to settle the case, the parties participated in an
evidentiary hearing on August 28-30, 2019, and January 22-24, 2020. On the first day
of hearing, prior to its case-in-chief, the Union provided notice that it intended to move
to amend the complaint. On September 16, 2019, the Union filed a motion to amend
the complaint and a proposed amended complaint. The City responded on
September 26, 2019. The ALJ granted the Union’s motion and issued an amended
complaint on January 13, 2020.2 The City answered the amended complaint on
January 21, 2020.
The parties filed opening post-hearing briefs in April 2020 and reply briefs the
following month. At that time, the record was closed. On May 20, 2020, the Board
directed that the record and the parties’ post-hearing briefs be submitted to the Board
itself for decision pursuant to PERB Regulation 32215.
FACTUAL FINDINGS
The City is a “public agency” within the meaning of MMBA section 3501,
subdivision (c) and PERB Regulation 32016, subdivision (a). The Union is an
“employee organization” within the meaning of MMBA section 3501, subdivision (a)
and an “exclusive representative” within the meaning of PERB Regulation 32016,
subdivision (b). The Union represents City employees in five classifications, split
2 The amended complaint added the interference claims based on three e-mails
the Union discovered in the preceding six months before moving to amend the
complaint. The amended complaint also added two new protected activities with
respect to the retaliation claim.

4
between two bargaining units: lifeguards at three different levels in the Lifeguard Unit,
as well as lifeguard sergeants and marine safety lieutenants in the Supervisory
Lifeguard Unit. At all material times, the Union and the City were parties to a single
MOU covering both units, which was in effect from July 1, 2016 to June 30, 2020. For
convenience, we refer to employees in all five represented classifications as
“lifeguards,” and we refer to the two units together as “the bargaining unit.”
All City lifeguards work for the Lifeguard Division in the City’s Fire-Rescue
Department (Department). The Department also employs firefighters and paramedics,
among others. In addition to their work on the beach and in the ocean, lifeguards
perform rescues on the cliffs of San Diego, and they perform inland water rescues in
lakes, rivers, and elsewhere during flood conditions.
Brian Fennessy was the City’s Fire Chief from November 2015 through his
retirement in April 2018. During Fennessy’s tenure, Rick Wurts was the City’s
Lifeguard Chief and head of the Lifeguard Division. Wurts reported to Fennessy and
Assistant Fire Chief Christopher Webber.
I. 	The City’s Policy for Routing Rescue Calls Prior to December 15, 2016
The City’s Police Department receives all emergency 911 calls. Prior to
December 15, 2016, police dispatchers would transfer certain emergency calls to one
of two Fire-Rescue Department dispatch centers, depending on the nature of the
emergency and the personnel who should respond. Specifically, police dispatchers
would transfer calls to the Emergency Command and Data Center (ECDC)3 to
3 ECDC is also referred to as “Fire Department Dispatch,” the “Fire Command
Center,” or the “Fire-Metro Communications Center.”

5
dispatch firefighters and paramedics, or the Lifeguard Communications Center (LCC)
to dispatch lifeguards. Police dispatchers were also required to conference ECDC
dispatchers into any call transferred to the LCC.
Although the LCC and ECDC are both housed under the Department’s
auspices, the two communications centers use different computer systems and
different methods to locate 911 callers. Of the two communication centers, ECDC has
the larger dispatcher staff and can handle a higher call volume. ECDC uses a
computer-aided dispatch (CAD) system, while LCC dispatchers do not use CAD. LCC
dispatchers, however, are specially trained to respond to calls requiring water rescues;
thus, they know the geography and topography of areas lacking street signs, such as
cliffs, the beach, inland lakes and rivers, and the ocean.
II. 	The City’s 2016 Change to its Dispatch Policy and The Union’s Response
On December 15, 2016, the City changed its dispatch policy. The new policy
required police dispatchers to route inland water rescue calls to ECDC in the first
instance. Fennessy announced the policy change in a memorandum and standard
operating procedure (SOP) entitled: “Dispatch SOP for Inland Water Rescue” (the
“2016 Dispatch Policy”). It stated:
“The Fire-Rescue Department is implementing changes to
dispatching protocols for Inland Water Rescues. Beginning
December 15, 2016[,] San Diego Police dispatch will route
all 911 calls for inland water rescue to the [ECDC]. The
attached SOP outlines roles and responsibilities for ECDC
and the [LCC]. Please review the SOP wi[th] all lifeguard
dispatchers.”
The 2016 Dispatch Policy similarly provided: “Inland water rescue emergency
requests, received via any source, shall be triaged and assigned by ECDC

6
dispatchers,” and that the LCC “shall be conferenced into the call to interrogate the
[Reporting Party] to decide a Lifeguard level of response.4
Prior to this change, LCC received most of its calls directly from police dispatch.
After the change, inland water rescue calls that LCC previously had received directly
from police dispatchers were now routed through ECDC. The Department thus
converted LCC from a secondary dispatch to a tertiary dispatch for inland water
rescue calls. The change did not apply to calls involving ocean rescues, nor to other
rescues occurring outside of inland waters.
Operating under the new dispatch policy, ECDC dispatchers began to send
firefighters as the primary responders to certain calls, though in the past lifeguards
had been the primary responders. The Union perceived this as a loss of work. The
Union also believed the new policy delayed inland water rescue calls by two to three
minutes and even delayed ocean rescue calls because ECDC dispatchers were
improperly trained or otherwise unprepared to distinguish how to handle different
types of calls.
4 Fennessy explained that a January 2016 rainstorm and attendant flooding
persuaded him to make the policy change. Fennessy believed that the volume of calls
had overwhelmed LCC dispatchers, and that as a result, lifeguards failed to answer
dozens of calls that police dispatchers routed to LCC. When LCC failed to answer
several attempted calls, police dispatchers re-routed them to ECDC. Moreover, the
volume of calls outstripped the number of lifeguards available to respond. Fennessy
concluded that routing emergency calls to the LCC in the first instance had slowed the
City’s response time. The Department commissioned Citygate, a consulting firm, to
study the Lifeguard Division’s dispatch and operations. After Citygate completed its
study, Fennessy issued the 2016 Dispatch Policy.

7
The Union filed a grievance on January 2, 2017. The grievance alleged that the
2016 Dispatch Policy and a December 22, 2016 memorandum to Communications
personnel violated the parties’ MOU, including provisions regarding preservation of
lifeguard work, primary responsibility for responding to rescue requests, and routing of
inland water rescue requests.
The Union also protested the policy change in a January 23, 2017 letter to City
Councilmembers and a February 15, 2017 letter to Fennessy, claiming that the
new policy delayed emergency response and that lack of notice to and training of
ECDC dispatchers caused confusion, engendering further delays. On March 14, 2017,
the Union held a press conference. At the press conference, the Union claimed that
the 2016 Dispatch Policy had contributed to a young child drowning in the City’s Model
Boat Basin, a small, shallow body of water in Mission Bay Park, where remote control
boats are floated. Chief Steward Ed Harris was the main Teamsters spokesperson at
the press conference.
Soon afterward, the City held its own press conference to present its view of the
Model Boat Basin tragedy. Fire Chief Fennessy and Police Captain Jerry Hara spoke
at the press conference, and other members of Fire-Rescue Department management
attended, together with representatives of other City employee unions. In e-mail
correspondence with the fire chief of another city, Fennessy called the information
conveyed in the Union’s press conference “patently inaccurate,” and described Harris
as a “real nut job” based on his presentation at the press conference. At a morning
briefing for lifeguards sometime after the Union’s press conference, Wurts told those
assembled, including Marine Safety Lieutenant John Sandmeyer, that the Union’s

8
performance at the press conference displeased Department management and each
lifeguard participant would be held accountable.
On March 16, 2017, Sandmeyer e-mailed other lifeguards from his personal
e-mail account. Sandmeyer, who wrote to a list the Union had compiled for internal
communications, used the subject heading “Lifeguard Union Fail.” Sandmeyer drafted
the e-mail in reaction to what he considered “an example of the Union leading a poor
high-profile press conference that . . . just sort of sullied our reputation.” Sandmeyer
opened his e-mail by stating “Teamsters 911 let down San Diego Lifeguards in a huge
way” and taking aim at Harris for “manipulating the facts and context to serve half-
truths.” Sandmeyer then forwarded his e-mail to Wurts, who responded with an e-mail
stating: “Thanks John. Very powerful! Thank you for your leadership. This Division
needs the wisdom and direction of people like you.” Sandmeyer later promoted to
captain, a rank outside of the bargaining unit.
III. 	The Parties’ Grievance Settlement
On June 12, 2017, the City and the Union executed a settlement agreement
requiring the Union to dismiss the 2016 Dispatch Policy grievance. In exchange, the
Department agreed to rescind its December 15 and 22, 2016 memoranda and restore
the status quo that existed prior to December 15, 2016, by ordering that Police
Department dispatchers send all inland water rescue calls directly to LCC. Moreover,
the parties agreed to “meet and confer in accordance with the MMBA on the
mandatory subjects of bargaining, related to the following subjects: (a) Dispatch

9
procedure for inland water rescues; (b) Record keeping and medical procedures for
medical aides; [and] (c) Computer aided dispatch and related electronic devices.”5
Assistant Fire Chief Webber testified that pursuant to the settlement agreement,
the City “revert[ed] back to the old policy” “by written direction to the Police
Department Command personnel.” According to Webber, management addressed this
rescission in an ECDC dispatch meeting; Webber further testified that he “was told”
that the same information was communicated to Police Department dispatchers. A
June 2017 memorandum from Hara to Police Department Communications personnel
appears to show the City’s reversion to its old policy. Although both parties introduced
the Hara memorandum with no objection, the memorandum bears a “draft” watermark.
The record does not contain a final version of the memorandum. While the “draft”
designation creates some uncertainty, Chester Mordasini, the Union’s signatory to the
settlement agreement, testified that he received a copy of the memorandum that did
not bear the “draft” watermark, and he believed that “the memo was sent.” Mordasini
and Lifeguard Dispatcher Brian Zeller testified that although the City rescinded its
2016 Dispatch Policy, subsequent practice was inconsistent. Overall, the weight of the
evidence leads us to find that the City rescinded its 2016 Dispatch Policy, though
individual police dispatchers may have erred at times, perhaps due to confusion
resulting from the City’s policy reversals.
5 The parties agreed, however, that at the completion of their meet and confer
process, the 2016 Dispatch Policy would apply during “water alert three” conditions,
although lifeguard dispatchers would be assigned to ECDC during those periods. Such
conditions occur during heavy rains with the potential risk of flooding.

10
IV. 	The Parties’ Negotiations Pursuant to Their Grievance Settlement
In accordance with the grievance settlement agreement, the parties met on
several occasions between August and December of 2017 to negotiate over the inland
water rescue dispatch procedure. On August 8, 2017, in advance of the parties’ first
meeting on August 15, the City sent its opening proposal to the Union.
At the August 15 bargaining session, Mordasini stated that the City’s proposal
was “unacceptable,” as the key provision regarding the routing of inland water rescue
requests was identical to the rescinded 2016 Dispatch Policy. Specifically, section C.1
of both the rescinded policy and the City’s opening proposal to the Union stated:
“Inland Water Rescue emergency requests received via any source shall be triaged
and assigned by ECDC dispatchers.” The City did not explain how its opening
proposal differed, if at all, from the rescinded 2016 Dispatch Policy. Instead, the City’s
chief negotiator, Tim Davis, explained the City’s perspective as to why its approach
made sense, generally repeating its earlier arguments in favor of consolidating
emergency dispatching in the better-resourced ECDC. Davis, however, acknowledged
the Union viewed the proposal as an attempt to take lifeguard work. Davis solicited a
counter-proposal from the Union and suggested that the parties should convene a
“study session” with lifeguard dispatchers and other “experts.” The parties discussed
having a subcommittee develop a proposal.
On September 6, 2017, the Union sent a letter to the City Attorney protesting
the City’s “re-proposing” the terms in the rescinded policy. The Union’s letter asserted
that the City had provided “no rational argument” supporting the proposal. On
September 11, 2017, the Union filed the instant charge.

11
The parties continued bargaining on September 19, 2017. Among other topics,
the parties discussed the Model Boat Basin drowning. The parties met again on
October 25, 2017 and discussed concepts for addressing the inland water rescue
dispatch procedure and Union concerns regarding the working committee established
for such purpose. The chief negotiators exchanged e-mail correspondence on
October 26 and 27, 2017, memorializing both parties’ belief that they were making
progress on the inland water rescue policy issues and both parties’ commitment to
exchange further comprehensive proposals on the subject.
The City provided its next proposal on November 15, 2017, and the Union
countered on December 6, 2017. After this exchange of proposals, the parties met for
their fourth and final bargaining session on December 8, 2017. The parties’ proposals
represented their divergent approaches to addressing the issue; the City was narrowly
focused on addressing the dispatch procedure while the Union was focused on
addressing emergency response staffing more globally. Davis explained that the City
did not agree to the Union’s counter-proposal because, among other reasons, it
attempted to reduce the number of firefighter resources dispatched to a rescue.
Mordasini asked Davis to “get back to us.”
In an e-mail dated February 22, 2018, the City rejected the Union’s
December 6, 2017 inland water rescue dispatch proposal because the City felt that it
restricted the level of personnel and equipment the City could use to respond to a call
and that these matters went beyond the scope of the negotiations the parties
envisioned in their settlement agreement. Nevertheless, the City proposed reaching
“an interim agreement that allows Alerts 3s and 4s [involving severe weather] to be

12
done consistent with Local 911’s proposal . . . [which] would include having lifeguard
dispatchers working out of the Emergency Command and Data Center during these
advanced Alerts.” If the parties could reach such an agreement, the City said, it would
consider the grievance settlement negotiations complete without further policy
changes at that time. The City concluded by stating that it was in the process of
drafting a plan “to improve integration between the Lifeguard Division and the Fire
Department,” and would meet and confer over negotiable subjects in connection with
successor MOU negotiations.
By e-mail dated March 2, 2018, the Union declined the City’s suggestion that it
enter into an agreement regarding the advanced Alerts, indicated its “willingness to
develop a comprehensive policy that includes dispatch and operations,” and
requested to meet and confer regarding various other, unrelated matters. The Union
did not request further bargaining on the inland water rescue dispatch policy, and
neither party declared impasse.6 The City thereafter maintained the same dispatch
policy it had followed prior to December 15, 2016, and did not attempt to re-implement
the 2016 Dispatch Policy.
V. 	The City’s Swiftwater Rescue Team
The State of California Office of Emergency Services (CalOES) sponsors 13
Swiftwater/Flood Water Rescue Teams (SWR Teams), including a City team (the City
SWR Team). During an emergency, other states’ governors can request assistance
6 The parties reached agreement on the other negotiable matters set out in the
grievance settlement.

13
from California teams through an Emergency Management Assistance Compact. The
requesting state pays for personnel deployed in this manner.
In an earlier iteration, the City staffed its SWR Team entirely by firefighters.
Over time, the City added lifeguards to its SWR Team due to their expertise with water
operations, and because the Department had trouble staffing it with qualified
firefighters. When deployed, an SWR Team generally includes 14 members.7 By 2017,
the City SWR Team included 11 lifeguard specialists who performed rescues in the
water and three firefighters who provided management or support roles, including a
task force leader, a medic, and a communications specialist. Firefighters filled the
three management or support roles because no lifeguards had the state-required
certifications.
The City has no written policies setting the number of lifeguards to serve on its
SWR Team, and the MOU also does not address SWR Team composition. As early as
2012, Fennessy and Webber were involved in discussions to change the SWR Team
composition. In February 2017, City Battalion Chief David Gerboth became SWR
Team program manager and assumed administrative responsibility for the Team.
Within the month, Fennessy told Gerboth that he wanted to change the composition of
the City’s team. Fennessy specifically asked him to investigate changing the
composition so that it included half firefighters and half lifeguards. Pursuant to
Fennessy’s direction, Gerboth determined that most CalOES SWR Teams included no
7 The CalOES deployment order specifies the team type, which determines the
number of members on the team. “Type-1 Teams” have 14 members.

14
lifeguards, and on the one SWR team he found that did include lifeguards, they made
up less than half the team.
The City SWR Team is a specialty team. No individual City lifeguard is required
to serve on the team; rather, serving on the team is a volunteer, prestigious
assignment available to lifeguards who have certain skills and who complete
additional training beyond that generally required of a City lifeguard. Pursuant to a City
Council resolution, City employees deployed as part of the City SWR Team, including
those represented by the Union, are paid “portal-to-portal” for their time, providing an
opportunity for compensation exceeding their regular pay. Lifeguards are paid for this
special service only if they deploy.
In 2017, Sandmeyer served as Team Manager for the City SWR Team.8
Gerboth delegated to Sandmeyer responsibility to maintain the Lifeguard Division’s
operational readiness for SWR Team deployments. Sandmeyer prepared, or
supervised preparation of, team member rosters, assigning members to either a red or
blue team, signifying that they were on-call to be deployed in alternate months.
Since 2007, the City SWR Team has only deployed on one occasion, to assist
with the response to flooding in Riverside County in 2011 or 2012.9 Although the City
SWR Team has not deployed since the Riverside County flooding, the City prepared
to deploy a type-1 SWR Team consisting of 14 members to Butte County in February
8 The Team Manager is the ranking lifeguard deployed on a water rescue
operation.
9 The team deployed to Riverside County was not a type-1 Team. As a result, it
had fewer than 14 members.

15
2017 in response to the threatened collapse of the Oroville Dam. That team was never
deployed.
Certain City personnel—but not lifeguards—also participate in an entirely
different rescue team known as California Task Force 8, which is an urban search and
rescue (USAR) task force sponsored by the Federal Emergency Management Agency
(FEMA). FEMA sponsors 28 USAR task forces across the country within the “National
Urban Search and Rescue Response System.” FEMA is responsible for funding the
USARs’ equipment and personnel costs (which may be supplemented by local
agencies) and for ensuring the task forces’ operational readiness status. California
Task Force 8 is a FEMA USAR task force composed of City employees as well as
employees from other emergency response agencies in Southern California. The
approximately 210 members of Task Force 8 include firefighters, canines and their
handlers, building engineers, and doctors. No FEMA USAR task force includes
lifeguards.
VI. 	Hurricane Harvey Emergency Response
In August 2017, Hurricane Harvey hit Texas, and in statements to the media,
that state’s governor made a broad request for help to respond to flooding and other
emergency conditions. FEMA issued an activation order effective August 26, 2017,
deploying California Task Force 8 to assist with Hurricane Harvey search and rescue
efforts. Although about half of the deploying personnel were City employees, there are

16
no lifeguards on Task Force 8. For this assignment, Task Force 8 used some state-
owned equipment that the City’s Lifeguard Division housed and maintained.10
Sandmeyer participated in daily conference calls with the California OES office
regarding whether SWR Teams would be assigned to work in Texas, and from those
conversations Sandmeyer understood that the City SWR Team “was potentially in the
rotation to go to Texas for this hurricane.” Sandmeyer communicated this information
to Wurts, Webber, and Gerboth, as well as to the City SWR Team members. Based on
Sandmeyer’s understanding that the City SWR Team was on “stand by” to deploy to
Texas, and pursuant to what he understood to be Gerboth’s authorization, Sandmeyer
directed the City SWR Team of 11 lifeguards and three firefighters to pack their gear
and prepare to leave for Texas. Ultimately, however, the City SWR Team did not
assist in the Hurricane Harvey recovery because the Texas governor never requested
such assistance.
On August 27, 2017, the day after Task Force 8 deployed to Texas, Sandmeyer
sent an e-mail at 10:44 a.m. to State fire chiefs and other CalOES officials. In this
e-mail, Sandmeyer noted that even though Task Force 8 had deployed, there were no
lifeguards on that team, and the City SWR Team, comprised of 11 lifeguards plus
three firefighters, had the resources and personnel to field an additional search and
rescue team. Moreover, even though Task Force 8 was using equipment maintained
10 CalOES can authorize a FEMA USAR team to use CalOES equipment. In
this case, Gerboth directed Sandmeyer to have members of the Lifeguard Division
prepare and deliver rescue boats and other supplies to the USAR cache. The
Lifeguard Division housed and maintained much of this equipment due to space
constraints at the USAR cache.

17
by the Lifeguard Division, the City SWR Team had enough equipment in reserve to
staff an additional response team. Fennessy was not copied on Sandmeyer’s e-mail
and was embarrassed to learn about it when Kim Zagaris, the CalOES Fire and
Rescue Chief, forwarded it to him at 12:10 p.m. that same day. Zagaris wanted
Sandmeyer and Fennessy to know that it was best if such communications went
“through the chain of command within San Diego City Fire/Rescue.”
Six minutes later, at 12:16 p.m., Fennessy responded to Zagaris, first stating
that he would address the matter with Sandmeyer, and then stating that the City SWR
Team, if requested, “will be 50/50 mix of firefighters and lifeguards. If Lifeguard Labor
organization challenges, we may need to consider dropping lifeguards from the team.”
Soon thereafter, at 12:34 p.m., Fennessy e-mailed Webber as follows:
“John [Sandmeyer] didn't copy anyone from [San Diego
City Fire Department] on the email . . . he had to have
known that he may have been counseled not to send direct.
It's as if he reached out like they are a separate agency. As
you know, the flow is from CalOES Fire & Rescue Chief to
the Fire Chief of the teams that equipment has been
assigned.
“I know we considered waiting, but Wurts and Sandmeyer
need to know now that any future CalOES request for the
SWR Team will be a mix of firefighters and lifeguards. If
this is unacceptable, then the lifeguards will be removed
from our CalOES SWR roster.
“Within the City, we will comply with the intent of the MOU
when responding to SWR. However, for State or FEMA
taskings, we will operate consistent with all other agencies
that have been provided equipment by FEMA and CalOES.
If we want to include Lifeguards on the CalOES SWR team,
I’m okay with it, but no more than 50%.

18
“[¶] . . . [¶]
“Better meet with Rick and Sandmeyer and get them
squared away on how the system works.”
A half hour later, at 1:07 p.m., Fennessy e-mailed Davis, the City’s labor
relations negotiator:
“I’ve directed Chief Webber to meet with Wurts and
Sandmeyer to explain how the State mutual aid system
works and that we want to be inclusive and will continue to
allow lifeguards to participate on the CalOES SWR team, but
only if the . . . team is a 50/50 mix of firefighters and
lifeguards. We had planned this anyway, but need to inform
them now before the rainy season begins.
“We will continue to comply with the City/Department agreed
upon MOU with L911 concerning SWR within the City.
Lifeguards are the ‘primary’ responders to swiftwater rescue
within the City.
“However, if L911 takes issue with including firefighters on
the CalOES SWR Team as firefighters were in the past, I will
have the lifeguards removed from the CalOES SWR team
and it will be staffed by firefighters only.”
The next day, Fennessy reiterated to Davis that: “I support [lifeguards] participating on
the CalOES SWR team, but the team makeup would be 50/50 and not 100% LGs.”
On August 29, 2017, Harris held a press conference to protest what he
characterized as Fennessy’s blocking the City SWR Team from responding to
Hurricane Harvey. At the press conference, Harris distributed an open letter to the
Texas governor, and the mayor and citizens of Houston, in which Harris described the
City SWR Team’s preparedness and desire to assist with the emergency response. In
the open letter, Harris also accused Fennessy of blocking SWR team members from
even using their own vacation time to assist in the rescue effort.

19
In response to the Union’s press conference, the City issued its own press
statement to, as Fennessy put it, clear up “the confusion that surfaced after Ed Harris
. . . held a news conference . . . about us not sending the Swiftwater Rescue Team to
Texas.”
VII. 	Post-Hurricane Events
On September 6, 2017, Fennessy e-mailed Zagaris regarding future staffing of
the City SWR Team. First, Fennessy wrote: “To be clear, staffing 50/50 has been a
consideration of mine and staff since last year.” Fennessy then wrote:
“Since all of the media attention and questions following my
not approving on duty lifeguard staff to self dispatch/deploy
surfaced, I’ve been asked a lot of questions by other fire
chiefs and rescue organizations about our staffing the
CalOES SWR San Diego team exclusively with lifeguard
staff. Specifically, why would l permit an all lifeguard team
to deploy to the type of flood rescue we've seen in Texas
and throughout the years in the U.S. when lifeguards do not
have all of the training, skills and experience that FEMA
and the other 12 CalOES teams expect of another team in
this environment.
“I've had to admit to myself that these are good questions.
Further, now that I am aware that there is an expectation
(and requirement of FEMA) of SWR teams possessing
skills beyond those of just meeting the State supported
swimming standards, would continuing to staff the CalOES
SWR San Diego team exclusively with lifeguards be placing
them at risk and perhaps the other flood rescue teams at
risk if their assistance was needed? If the assumption by all
of the other SWR/Flood Rescue teams are that every team
alongside them are trained, skilled and experienced in all of
the emergency operations l identified above, am I now
knowingly placing my own lifeguards and other teams in
harms [sic] way? I believe so.

20
“Thus, I have ordered that any future CalOES SWR San
Diego team deployments be a 50/50 mix of SND firefighters
and lifeguards. While my lifeguards are excellent
swimmers, they do not possess all of the other necessary
training, skills or experience in the emergency operations I
identified above and that FEMA requires. Ensuring that
one-half of the team are firefighters I believe mitigates the
risk to an acceptable level. In addition, it helps demonstrate
within my own organization, that we are truly one SND
team.
“Having said all of that, I also recognize that our Lifeguard
Union Chief Steward has made such a public case for those
he represents self deploying, many fire chiefs and
firefighters are calling into question why CalOES would
allow SND or any fire department/district to staff any of their
teams with lifeguards. Given the above, I understand and
respect why the question is being asked.”
In approximately early September, Wurts and Sandmeyer met in Wurts’ office
and discussed Fennessy’s decision to reduce lifeguard representation on the City
SWR Team. Sandmeyer testified that Wurts “indicated” that Fennessy’s decision
resulted from the Union’s press conference. Sandmeyer further explained that Wurts
“insinuated” that misinformation from Union members “had aggravated the chain of
command to the point where they were going to reduce the amount of lifeguards on
the Team.”11 Wurts testified after Sandmeyer and did not contradict Sandmeyer’s
account of their discussion.
11 Sandmeyer’s testimony recounting the conversation falls within the party
admission exception to hearsay, because he testified regarding statements by Wurts,
an agent of the City. (Bellflower Unified School District (2014) PERB Decision
No. 2385, p. 10)

21
On September 7, 2017, Sandmeyer e-mailed an internal Union distribution list
with the subject heading “Union Fail Part V.” Sandmeyer did so because he “thought
the Union had let down the Lifeguard Division.” In his e-mail, Sandmeyer referenced a
published letter from Sacramento Fire Chief Walt White, which criticized Harris for
comments he made at the August 29 press conference. Sandmeyer further wrote, in
reliance on what Wurts had told him, that as a result of the August 29 press
conference, “[b]y order of [Fennessy], your represented members have just been
reduced in numbers by 40% from the CalOES team.” Sandmeyer forwarded a copy of
his e-mail to Wurts, who responded: "That is one of the most well written letters I have
ever read. Well done!” Wurts also forwarded Sandmeyer’s e-mail to Fennessy and
Webber. Wurts testified that he did so “to make sure that they were aware of what was
going on” in the Lifeguard Division.
As of the time of hearing, the City SWR team had not deployed since 2011 or
2012. Nevertheless, the team maintains operational readiness for deployment. To this
end, the Lifeguard Division creates SWR team rosters. After August 2017, SWR team
rosters included only seven lifeguards rather than eleven. For example, Sandmeyer
prepared rosters for possible deployments in October 2018 and spring 2019 with
seven lifeguards on each team. Sandmeyer changed the roster composition
(decreasing the number of lifeguards rostered from eleven to seven) pursuant to
instruction from Wurts in September 2017.

22
DISCUSSION
I. 	The Bad Faith Bargaining Allegation
In determining whether a party has violated its duty to meet and confer in good
faith, PERB uses a “per se” test or a “totality of the conduct” analysis, depending on
the specific conduct involved and its effect on the negotiating process. (City of Arcadia
(2019) PERB Decision No. 2648-M, p. 34 (Arcadia).) Per se violations generally
involve conduct that violates statutory rights or procedural bargaining norms. (Id. at
pp. 34-35.) The totality of conduct test applies to bad faith bargaining allegations that
our precedent has not identified as constituting a per se refusal to bargain. (Id. at
p. 35.) Under this test, the Board looks to the entire course of negotiations, including
the parties’ conduct at and away from the table, to determine whether the respondent
has bargained in good faith. (Ibid.) The ultimate question is whether the respondent’s
conduct, when viewed in its totality, was sufficiently egregious to frustrate
negotiations. (Ibid.) A single indicator of bad faith, if egregious, can be a sufficient
basis for finding that a negotiating party has failed to bargain in good faith. (City of
San Jose (2013) PERB Decision No. 2341-M, p. 19.)
Pursuant to their June 12, 2017 settlement agreement resolving the 2016
Dispatch Policy grievance, the parties agreed to bargain over inland water rescue
dispatch procedures, and related topics. The Union alleges that during the ensuing
August-December 2017 negotiations, the City breached its duty to bargain in good
faith by: (1) failing to explain its bargaining position adequately; (2) making a
predictably unacceptable proposal; (3) failing to return to the status quo which
preceded the 2016 Dispatch Policy; and (4) abandoning negotiations.

23
As to the first alleged bad faith indicator, we find that the City did in fact explain
its bargaining proposals adequately.
Given the Union’s vocal opposition to the 2016 Dispatch Policy, the Union
argues that the City’s opening proposal, which was identical, or nearly so, to the 2016
Dispatch Policy, was predictably unacceptable and therefore an indicator of bad faith.
“Making proposals that are predictably unacceptable to the other party is a well-
established indicium of bad faith bargaining.” (Children of Promise Preparatory
Academy (2018) PERB Decision No. 2558, p. 33.) The City notes that it showed
flexibility on the proposal from the outset. The City solicited a counter-proposal,
acknowledged the Union’s position that the proposal was an incursion into the
lifeguards’ traditional work jurisdiction, and suggested that subsequent discussions
include lifeguard dispatchers and other experts. The parties also discussed that a
stakeholder subcommittee could come up with a proposal. The parties met for three
additional face-to-face bargaining sessions and exchanged further proposals, with
both parties expressing their belief that they were making progress toward a
resolution. Ultimately, however, the City rejected the Union’s December 6, 2017
proposal, asserting that it restricted the level of personnel and equipment the City
could use to respond to a call, and that these matters went beyond the scope of the
negotiations the parties envisioned in their settlement agreement. The City instead
offered what it believed to be a Union-approved “interim agreement” regarding
dispatching in severe weather, and to defer the more contentious dispatching issues
to successor MOU negotiations. The Union declined the City’s proposal and did not

24
request further bargaining. We find the City’s above-described conduct did not
frustrate negotiations.
We next consider the Union’s argument that the City never returned to the pre-
2016 Dispatch Policy status quo, despite its obligation to do so under the parties’
grievance settlement. Such a failure, if proven, would be an indicator of bad faith. (Cf.
County of Kern (2018) PERB Decision No. 2615-M, p. 11, fn. 8 [restoring the status
quo is a necessary condition for meaningful bargaining to occur]; City of San Ramon
(2018) PERB Decision No. 2571, p. 15 [good faith bargaining is not possible when
employer has already “imposed the very terms under discussion, thereby forcing [the
union] to start from a position of having to talk the [employer] back to the status quo.”];
City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 49 [compelling a union to
bargain back to the status quo makes impossible the give and take that is the essence
of good faith bargaining]; County of Santa Clara (2013) PERB Decision No. 2321-M,
p. 24 [bargaining “from a hole” is futile, and restoring the status quo is necessary so
that “bargaining may proceed on a level playing field.”].)
Here, however, multiple City witnesses testified that pursuant to the settlement
agreement, the Department reverted to the pre-2016 Dispatch Policy and
communicated this directive to Police Department and ECDC dispatchers. In fact, as
noted above, Union witnesses corroborated the City witnesses’ testimony, while noting
some residual confusion or inconsistent practice by dispatchers. Although an
employer’s inconsistent practice could pose such an obstacle to good faith bargaining
that it amounts to an incomplete restoration of the status quo, the Union did not show

25
such facts here. Rather, as of the time of hearing, there was little dispute that the City
had returned to the status quo that existed before the 2016 Dispatch Policy.
Lastly, we evaluate the Union’s argument that the City abandoned negotiations
in bad faith. If an employer declares impasse without reaching a bona fide impasse
after good faith negotiations, but the employer neither changes employment terms nor
refuses to continue bargaining, the Board considers that evidence under the totality of
conduct test. (City of San Ramon, supra, PERB Decision No. 2571, p. 7, fn. 9; County
of Riverside (2014) PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in
those circumstances refuses to bargain further or proceeds to change employment
terms, that constitutes further evidence of bad faith under the totality test, and it also
constitutes a per se violation. (City of San Ramon, supra, p. 7, fn. 9; County of
Riverside, supra, p. 11.) Here, the City did not take any such steps—it did not even
declare impasse. The City rejected the Union’s last proposal and offered an alternate
one that included features it thought the Union might approve. When that did not lead
to progress, the City nonetheless decided to maintain the pre-2016 Dispatch Policy
status quo and take up dispatching in the context of broader successor MOU
negotiations. The Union did not seek further bargaining over the dispatch issue at that
time but rather moved on to other issues. The record therefore does not reflect that
the City abandoned negotiations or that its commitment to negotiations was lesser
than the Union’s commitment.
For these reasons, we dismiss the Union’s bad faith bargaining claim.

26
II. 	The Retaliation Allegation
To establish a prima facie case of retaliation, the charging party has the burden
to prove, by a preponderance of the evidence, that (1) one or more employees
engaged in activity protected by a labor relations statute that PERB enforces; (2) the
respondent had knowledge of such protected activity; (3) the respondent took adverse
action against one or more employees; and (4) the respondent took the adverse action
“because of” the protected activity, which PERB interprets to mean that the protected
activity was a substantial or motivating cause of the adverse action. (City and County
of San Francisco (2020) PERB Decision No. 2712-M, p. 15 (San Francisco).)
If the charging party meets its burden to establish each of these factors, certain
fact patterns nonetheless allow a respondent the opportunity to prove, by a
preponderance of the evidence, that it would have taken the exact same action even
absent protected activity. (San Francisco, supra, PERB Decision No. 2712-M, p. 15.)
This affirmative defense is most typically available when, even though the charging
party has established that protected activity was a substantial or motivating cause of
the adverse action, the evidence also reveals a non-discriminatory motivation for the
same decision. (Id. at pp. 15-16.) In such “mixed motive” or “dual motive” cases, the
question becomes whether the adverse action would not have occurred “but for” the
protected activity. (Id. at p. 16.)
The Union alleges that the City reduced the number of lifeguards on its SWR
Team in retaliation for protected activities. The first two elements of the Union’s prima
facie case are not in serious dispute. There is no question the Union engaged in the
four protected activities described in the amended complaint: filing a grievance in

27
January 2017, holding press conferences in March and August 2017, and issuing a
September 2017 letter to the City Attorney protesting the City’s “re-proposing” the
terms in the rescinded 2016 Dispatch Policy. Nor is there any doubt that the City was
aware of these actions. At issue is whether the Union established adverse action,
whether one or more of the protected activities noted in the amended complaint were
at least a motivating cause for the alleged adverse action, and, if so, whether the City
has proven that it would have followed exactly the same course of action even absent
those protected activities.
A. Adverse Action
PERB uses an objective test to determine whether an employer’s action is
adverse. (San Francisco, supra, PERB Decision No. 2712, p. 19, citing Chula Vista
Elementary School District (2018) PERB Decision No. 2586, pp. 24-25 (Chula Vista).)
“The test which must be satisfied is not whether the employee found the employer’s
action to be adverse, but whether a reasonable person under the same circumstances
would consider the action to have an adverse impact on the employee’s employment.”
(San Francisco, at pp. 19-20, citing Chula Vista, at p. 25 (internal citation omitted).)
Context is highly relevant in determining whether non-punitive directives are adverse.
(San Diego Unified School District (2019) PERB Decision No. 2683, p. 9.) Reducing
work opportunities constitutes an adverse action. (See, e.g., El Dorado Union High
School District (1986) Decision No. 564, pp. 21-25 [district engaged in adverse action
by declining to offer bus drivers an opportunity to drive on weekend trips and instead
arranging travel via Greyhound].)

28
The City argues that the Union cannot show adverse action because “Chief
Fennessy’s proposal to modify the team composition has not been formally
implemented.” It is true that the City SWR Team did not deploy to assist in the
Hurricane Harvey response, and at the time of hearing the SWR Team had not
deployed since the City’s decision to reduce the level of lifeguard staffing on the team.
Nonetheless, the evidence establishes that by September 6, 2017, Fennessy had
diminished lifeguard representation on future City SWR Teams to 50 percent, or to a
maximum of seven members. In his separate August 27, 2017 e-mails to Zagaris,
Webber, and Davis, Fennessy made clear that future SWR Team deployments would
be staffed by equal numbers of firefighters and lifeguards, consequently decreasing
the number of lifeguards on any team. On September 6, 2017, Fennessy sent a further
e-mail to Zagaris confirming this fact. In his August 27 e-mail to Webber, Fennessy
instructed Webber to meet with Wurts and Sandmeyer to impart this information.
Wurts, in turn, told Sandmeyer that lifeguard membership would be reduced on future
SWR Teams, as notably recounted in Sandmeyer’s September 7, 2017 e-mail.
Indeed, even though the City SWR Team has not deployed in recent years, it must
maintain its operational readiness, which includes developing rosters of personnel
ready to be deployed. All rosters prepared post-September 2017 show a maximum of
seven lifeguards on call to be deployed on a given Team; the post-September 2017
rosters differ from the earlier ones which uniformly provide for 11-lifeguard teams.12
12 While an actual or threatened diminution in work opportunities is, standing
alone, an adverse action, we also note that SWR service is a prestige assignment and
that lifeguards on the City SWR Team are eligible for portal-to-portal pay, a substantial
increase in their regular compensation.

29
We thus find sufficient evidence to conclude that had the City SWR Team deployed
after September 2017, it would have consisted of seven firefighters and seven
lifeguards.
Even assuming for the sake of argument that the City has not yet implemented
Fennessy’s directive, PERB precedent provides that a threat of action and carrying out
the action are separate adverse acts. (San Diego Unified School District (2017) PERB
Decision No. 2538, pp. 12-13; City of Davis (2016) PERB Decision No. 2494, p. 42;
Regents of the University of California (2004) PERB Decision No. 1585-H, pp. 7-8.) As
noted above, Fennessy instructed Webber to inform Wurts and Sandmeyer about the
change, and Wurts did in fact inform Sandmeyer, who was at that point still a
bargaining unit employee. Moreover, Sandmeyer relayed the information to other
lifeguards in his September 7, 2017 e-mail. Fennessy’s threat therefore constitutes an
alternate basis for finding that the City has taken adverse action.
B. Nexus and the City’s Affirmative Defense
To resolve the Union’s retaliation claim, we must consider the City’s
motivations. In doing so, we keep in mind that even when an employer has a
managerial, statutory, or contractual right to take an employment action, its decision to
act cannot be based on an unlawful motive, intent, or purpose. (County of Santa Clara
(2019) PERB Decision No. 2629-M, p. 13; County of Lassen (2018) PERB Decision
No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538,
pp. 4-5.)
We have weighed every piece of evidence, and every argument, bearing on the
alleged discriminatory and non-discriminatory reasons for Fennessy’s decision to

30
reduce the number of lifeguards on the City SWR Team. For the reasons explained
below, we find that the Union has established that discriminatory animus was a
motivating factor in Fennessy’s decision, but the City has proven that it would have
taken the same action, at the same time, even absent the Union’s protected activities.
As noted above, Fennessy and Webber discussed rebalancing the City SWR
Team as early as 2012. Other fire chiefs expressed to Fennessy their concern that the
City’s lifeguard-heavy team could not provide sufficient backup to SWR Teams trained
based on FEMA standards. Fennessy continued the discussions in February 2017,
when Gerboth became the City’s CalOES program manager and Fennessy tasked him
with investigating a 50-50 split between firefighters and lifeguards. Thus, Fennessy
had a non-retaliatory business reason to consider modifying the composition of the
City SWR Team.
However, Fennessy was only considering changing the SWR Team
composition—until Sandmeyer’s August 27, 2017 e-mail caused him to execute the
change.13 In his August 27 e-mail to Webber, Fennessy acknowledged that he and
other managers had not, prior to that day, had a definite or final plan to make the
change at any particular time. The record confirms that Fennessy had been holding
back on making any contemplated change, as the SWR Team rosters prepared earlier
in 2017—in February in preparation for possible deployment to the Oroville Dam and
in August in advance of Hurricane Harvey—provided for eleven lifeguards, not seven.
13 No party has asked us to consider whether Sandmeyer’s unauthorized e-mail
to Zagaris was protected activity in whole or in part, and we decline to consider the
issue sua sponte.

31
On August 27, 2017, Zagaris forwarded Fennessy a copy of Sandmeyer’s
unauthorized e-mail advocating for the City SWR Team to be deployed, and just six
minutes later Fennessy responded with notification that any such deployment would
be half lifeguards and half firefighters—in direct contrast to the prepared roster.
Fennessy reiterated the decision in two e-mails that he sent within the same hour, to
Webber and Davis. This sequence provides strong evidence that Sandmeyer’s
unauthorized e-mail to Zagaris was the most significant immediate event leading to
Fennessy’s decision.
The record also reveals sufficient evidence of retaliatory animus to make this a
mixed motive case. First, Fennessy’s e-mails show that while he was aggravated over
Sandmeyer’s unauthorized e-mail to Zagaris, he also harbored anti-union animus, as
evidenced by his statement to City labor negotiator Davis that if the Union were to take
issue with his decision, he would remove lifeguards from the SWR Team altogether
and staff it solely with firefighters.14
14 Prior to the Union’s protected activity, management already had in the works
a potential plan to alter the SWR Team composition to include half firefighters and half
lifeguards, but management had no potential plan in the works to eliminate lifeguards
altogether. Fennessy’s contemporaneous writings and his testimony leave no doubt
that any decision to zero out lifeguards’ participation on the SWR Team would be
mainly a product of protected activity, and those circumstances underpin our finding
that Fennessy’s e-mail reflected unlawful animus. Notably, the amended complaint did
not allege that Fennessy engaged in unlawful retaliation or interference by threatening
to eliminate completely lifeguards’ SWR role; any such further composition change, or
new statement pertaining to such a change, must be litigated in a subsequent charge.
However, as discussed below, as a remedy for the interference claims alleged in the
amended complaint, we order the City to cease and desist from linking a decrease in
lifeguard work opportunities to protected activity.

32
Moreover, Sandmeyer testified that during a meeting in Wurts’ office, Wurts
indicated that management had changed the SWR Team composition because the
Union held a high-profile press conference. Wurts testified after Sandmeyer at the
formal hearing and did not attempt to dispute Sandmeyer’s testimony about their
discussion. Although the Union held its August 2017 press conference two days after
Fennessy reduced lifeguard representation on the City SWR Team, management had
already manifested a significant negative reaction following the Union’s protected
activities earlier in 2017, and Wurts likely saw the August press conference as further
exacerbating management’s earlier reaction.15
It is likely that lingering animus from the Union’s protected activities in January
through March 2017 contributed to Fennessy’s August 27 decision, even if animus
resulting from those earlier activities was not enough, standing alone, to trigger the
decision. The Union’s August 29 press conference also likely further solidified
Fennessy’s resolve not to back down from reducing lifeguard representation on the
SWR Team.16
15 As noted above, at a morning briefing sometime after the Union’s March
2017 press conference, Wurts told those assembled that the Department’s
management was displeased with the Union’s performance at the press conference
and every lifeguard participant would be held accountable.
16 The City has not asked us to consider whether, at either press conference,
the Union made false statements with actual malice and thereby went beyond the
bounds of protected activity. (See County of Riverside (2018) PERB Decision
No. 2591-M, pp. 6-7 [criticism of management or working conditions is protected by
the MMBA unless it is shown by clear and convincing evidence that the speaker acted
with actual malice].)

33
Because the record reveals dual motives, we must determine if the District met
its burden to show it would have taken identical action, even absent protected activity.
(San Francisco, supra, PERB Decision No. 2712-M, p. 27; San Diego Unified School
District (2019) PERB Decision No. 2634, pp. 15-16.) This determination can involve
weighing the evidence supporting the employer’s justification against the evidence of
the employer’s unlawful motive, in order to determine what would more likely than not
have occurred in the absence of protected activity. (San Diego Unified School District
(2019) PERB Decision No. 2666, p. 7.) Fennessy’s e-mails and the record in its
entirety persuade us that Fennessy made a final decision to change the City SWR
Team composition on August 27, 2017, when he was primarily aggravated by
Sandmeyer’s unauthorized e-mail to Zagaris. Fennessy was already contemplating the
change for legitimate reasons that predated any protected activity, and it was
Sandmeyer’s unauthorized e-mail to Zagaris—more so than any protected activity—
that was the but-for cause leading Fennessy to make a final decision.
We find that the City has established its affirmative defense—that it would have
taken exactly the same action at the same time even absent any protected activity—by
a preponderance of the evidence. We therefore dismiss the Union’s retaliation claim.
III. 	The Interference Allegations
A. Timeliness
We first consider whether the Union timely moved to add the interference
allegations set out in paragraphs 13-16 of the amended complaint. These allegations
are based on three e-mail messages sent by Wurts—to Sandmeyer on March 16 and
September 7, 2017 and to Fennessy and Webber on September 7, 2017—that the

34
Union first saw when it reviewed the documents the City produced pursuant to
subpoena on June 26, 2019. On August 28, 2019, the first day of hearing, the Union
provided notice of its intent to move to amend the complaint to add allegations based
on these three e-mails, and in its opening statement it described its proposed
interference theory. On August 29 and 30, 2019, the three e-mails were admitted into
evidence as part of the Union’s case-in-chief. The Union filed a formal motion to
amend on September 16, 2019. The ALJ granted the motion on January 13, 2020.
The evidentiary hearing resumed on January 22-24, 2020, during which time the
Union completed its case-in-chief and the City presented its defense.
In its post-hearing brief, the City contends that the interference allegations
based on Wurts’ e-mails are time-barred because the Union moved to amend the
complaint over two years after Wurts sent the e-mails. The MMBA generally precludes
PERB from issuing a complaint based on an unfair practice occurring more than six
months prior to the filing of the charge. (Coachella Valley Mosquito & Vector Control
Dist. v. Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1089-1092.)
However, the limitations period begins to run once the charging party knew or
reasonably should have known of the conduct underlying the charge. (United
Teachers of Los Angeles (Raines, et al.) (2016) PERB Decision No. 2475, p. 57.)
There is no dispute that the Union first learned of Wurts’ three e-mails by virtue of the
City’s response to a subpoena on June 26, 2019, well within the sixth months prior to
the Union’s request to amend the complaint. The City has not pointed to any evidence

35
that the Union knew or reasonably should have known of the e-mails earlier.
Accordingly, the statute of limitations does not bar the Union’s interference claims.17
Moreover, the Teamsters’ motion to amend the complaint during the hearing
was appropriate under PERB Regulation 32648, which provides:
“During hearing, the charging party may move to amend the
complaint by amending the charge in writing, or by oral motion on
the record. If the Board agent determines that amendment of the
charge and complaint is appropriate, the Board agent shall permit
an amendment. In determining the appropriateness of the
amendment, the Board agent shall consider, among other factors,
the possibility of prejudice to the respondent.”
Even if the addition of a new theory of liability based on conduct that occurred
more than two years prior—but not discovered by Teamsters until three months before
its motion to amend—would constitute prejudice, any such prejudice was dispelled
because the City had four months to prepare to defend against the new interference
allegations, which were fully litigated during the remaining days of hearing. (See
Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 [“Even if an
amended pleading would prejudice the other party, it is appropriate to grant the
requested amendment if the ALJ can order accommodations that sufficiently alleviate
17 Under the relation-back doctrine, a charging party may amend a charge to
add alleged violations that it discovered more than six months earlier “if the amended
charges are closely related to the actions in the original charge.” (Monterey Peninsula
Unified School District (2014) PERB Decision No. 2381, p. 37, quoting Gonzales
Union High School District (1984) PERB Decision No. 410, pp. 19-20.) Because the
Union raised the interference allegations within six months of discovering Wurts’
e-mails, we need not determine whether the relation back doctrine would apply to
these facts.

36
the prejudice, typically a continuance that allows additional time to prepare the
case.”].) For these reasons, the Teamsters’ motion to amend was appropriate.
B. Merits
To establish a prima facie interference case, a charging party must show that a
respondent’s conduct tends to or does result in some harm to protected rights under
our statutes. (Trustees of the California State University (Northridge) (2019) PERB
Decision No. 2687-H, p. 3 (CSU).) Once a charging party has established a prima
facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the
employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights,
then the employer must show that the interference was caused by circumstances
beyond its control and that no alternative course of action was available. (Id. at
pp. 3-4.)18 On the other hand, for employer conduct that is not inherently destructive,
the employer may attempt to justify its actions based on operational necessity. (Id. at
p. 3.) In such cases, PERB will balance the employer’s asserted interests against the
tendency to harm protected rights; if the tendency to harm outweighs the asserted
business justification, PERB finds a violation. (Ibid.)19
18 In Regents of the University of California (2018) PERB Decision No. 2610-H,
the Board explained that conduct is inherently destructive if its “natural and probable
consequence” is to discourage protected activity, including but not limited to requiring
employees to give up protected activity to receive a pay increase; maintaining an
overbroad restriction that bars a mix of protected and unprotected activities; or
implementing a wholesale replacement of represented employees with non-
represented employees. (Id. at pp. 58-61 & 71.)
19 Once a prima facie case is established, the Board has categorized employer
conduct as “inherently destructive” or having a “comparatively slight” impact (see, e.g.,
CSU, supra, PERB Decision No. 2687-H, p. 3), but the latter descriptor signifies only
that the tendency to harm protected rights is something less than inherently

37
In resolving an interference claim involving employer speech, we consider the
employer’s statement in its overall context, i.e., in light of surrounding circumstances,
to determine if an employee or union representative would objectively tend to feel that
the statement coerces, restrains, or otherwise interferes with protected rights. (See,
e.g., Los Angeles Unified School District (1988) PERB Decision No. 659, p. 9.) One
relevant factor is the extent to which a statement is truthful or misleading. (See, e.g.,
California State University (1989) PERB Decision No. 777-H, p. 3; Alhambra City and
High School District (1986) PERB Decision No. 560, pp. 16-17; Muroc Unified School
District (1978) PERB Decision No. 80, p. 21.)
destructive; it does not mean that the tendency to harm is necessarily “slight.” Within
the category of employer actions or rules that are not inherently destructive, the
stronger the tendency to harm, the greater is the employer’s burden to show its
purpose was important and that it narrowly tailored its actions or rules to attain that
purpose while limiting harm to protected rights to the extent possible. (See, e.g.,
County of San Bernardino (Office of the Public Defender) (2015) PERB Decision
No. 2423-M, p. 36 [“The scrutiny with which the employer’s conduct will be examined
depends on the severity of the harm.”]; Claremont Unified School District (2019) PERB
Decision No. 2654, p. 23 [“The key to an appropriate directive is that it is tailored to
the particular circumstances.”]; Regents of the University of California (2004) PERB
Decision No. 1700-H, adopting proposed decision at p. 60 [in devising access rules for
its main administrative building, employer may have had legitimate concern that
demonstrators might block ingress and egress or otherwise disrupt operations, but
employer broadly prohibited all demonstrations rather than narrowly drawing its rules
to address legitimate operational needs].)
Member Shiners disagrees that the concept of “inherently destructive conduct”
should be part of PERB’s interference standard. (Contra Costa County Fire Protection
District (2019) PERB Decision No. 2632-M, pp. 72-76 (dis. opn. of Shiners, M.).)
Nevertheless, he recognizes that extant Board law continues to include that concept in
its interference test, and thus concurs in its application here for institutional reasons.

38
The amended complaint alleges that the City violated MMBA section 3506.5,
subdivisions (a), (b), and (d) when Wurts: (1) responded to Sandmeyer on March 16
and September 7, 2017, praising e-mails that Sandmeyer had sent to other bargaining
unit lifeguards and subsequently forwarded to Wurts, and (2) forwarded Sandmeyer’s
September 7, 2017 e-mail to Fennessy and Webber.
We now reexamine the circumstances surrounding these e-mails. As described
ante, the Teamsters protested the City’s new 2016 Dispatch Policy several times. The
Union filed a grievance on January 2, 2017; the Union protested the change in letters
to City Councilmembers and Fennessy on January 23 and February 15, 2017,
respectively; and, on March 14, 2017, Harris held a press conference where he
claimed that the new policy contributed to a child’s drowning. At a Department briefing
following the press conference, Wurts told those assembled that the Union’s
performance at the press conference displeased Department management and each
lifeguard participant would be held accountable.
On March 16, 2017, Sandmeyer e-mailed bargaining unit lifeguards criticizing
Union leaders for “manipulat[ing] facts and context to serve half[-]truths” and asserting
that the Union’s press conference “damage[d] our reputation.” According to
Sandmeyer, the Teamsters’ hyperbole and inaccurate claims “let down San Diego
Lifeguards in a huge way,” and he urged that bargaining unit members learn the true
facts. Sandmeyer forwarded his e-mail to Wurts, who e-mailed back the same day as
follows: “Thanks John. Very powerful! Thank you for your leadership. This Division
needs the wisdom and direction of people like you.”

39
On August 29, 2017, after California Task Force 8 deployed in response to
Hurricane Harvey, Harris held another press conference to protest what he
characterized as Fennessy’s blocking the City SWR Team, including lifeguards, from
also deploying. On August 30, 2017, the City issued a press statement explaining
FEMA’s policies for activating rescue task forces to clear up any confusion caused by
the Teamsters’ press conference. On August 27 and September 6, 2017, Fennessy
announced that he was changing the City SWR Team’s staffing composition by
reducing the number of lifeguards and increasing the number of firefighters.20
On September 7, 2017, Sandmeyer e-mailed bargaining unit lifeguards
accusing Harris and others of “speak[ing] blindly” while not understanding CalOES’s
methods for assigning SWR Teams to respond in emergencies. Sandmeyer
referenced a statewide letter criticizing Harris for his comments and wrote that the Fire
Chief “just . . . reduced [lifeguard representation] by 40% from the CalOES team”
because of the Teamsters’ press conference. Sandmeyer forwarded his e-mail to
Wurts, who responded: “That is one of the most well written letters I have ever read.
Well done!” Wurts then forwarded Sandmeyer’s e-mail to Fennessy and Webber.
We find that two of Wurts’ three e-mails violated the MMBA.21 Specifically,
Wurts’ March 16 and September 7, 2017 e-mails to Sandmeyer tended to interfere
20 As discussed ante, we find that Fennessy would have reduced lifeguard
representation to half of the City SWR Team even absent protected activity. We thus
examine his decision solely for our consideration of the overall context surrounding
Wurts’ e-mail communications with Sandmeyer.
21 Wurts’ September 7, 2017 e-mail to Fennessy and Webber—in which he
forwarded Sandmeyer’s e-mail—was an internal management communication. We

40
with, restrain, and coerce protected employee and employee organization rights in
violation of MMBA section 3506.5, subdivisions (a) and (b). Moreover, these e-mails
also tended to interfere with internal union affairs in violation of MMBA section 3506.5,
subdivision (d). We explain.
1. 	Analysis Under MMBA Section 3506.5, Subdivisions (a) and (b)
In evaluating whether employer speech constitutes interference with protected
rights, “the Board will look to the surrounding circumstances in which employer speech
occurs, including the employer’s power to control terms and conditions of employment
and the economic dependence of employees on the employer, to determine whether,
when viewed in context, employer speech conveys a threat of reprisal or force, a
promise of benefit or a preference for one employee organization over another.”
(Hartnell Community College District (2015) PERB Decision No. 2452, p. 25
(Hartnell).) Viewed in context, Wurts’ e-mails to Sandmeyer fell outside the range of
permissible employer speech in two respects.
First and foremost, Wurts’ September 7 e-mail endorses a link between the
reduction of lifeguards on the SWR Teams and protected activity. In early September
2017, Wurts had indicated to Sandmeyer that the Union’s press conference late the
previous month had led to Fennessy’s decision to reduce lifeguard work opportunities,
and Sandmeyer repeated this coercive message in his September 7 e-mail to all
lifeguards. By effusively praising the e-mail without indicating any parts that were
untrue, Wurts further embraced the strongly coercive idea—which Wurts himself had
find no evidence that it had a tendency to interfere in employees’ or employee
organizations’ protected rights.

41
originated—that Fennessy had reduced lifeguard representation on the SWR Team
due to protected activity. (County of Merced (2014) PERB Decision No. 2361-M,
adopting proposed decision at p. 19 [even where manager intended his statement to
be protective of his employees, it interfered with protected rights by suggesting that
employees might lose desirable assignments due to protected activity].)22
Furthermore, a reasonable employee receiving or otherwise learning of Wurts’
two praising e-mails to Sandmeyer might reasonably infer that he or she might avoid
adverse action and/or obtain preferential treatment for opposing Union leadership.23
This is particularly the case in light of Wurts’ prior statement that any lifeguard
participating in the Union’s March 2017 press conference would be held accountable.
Notably, any implication of a potential benefit would mainly encourage opposition to
22 We do not absolve the City of liability based on Wurts’ testimony that he
would not necessarily have corrected Sandmeyer’s September 7 e-mail if it was
inaccurate. First, it is likely that Wurts would have noticed that Sandmeyer’s
September 7 e-mail linked a decrease in lifeguard work opportunities to protected
activity. Indeed, Wurts testified that he thought Sandmeyer “was trying to put
information out there to the crew to help them better understand all of it.” This
testimony underscores the importance of Sandmeyer’s e-mail and the potential
importance of Wurts’ decision to endorse it. Wurts had no duty to correct
misinformation in Sandmeyer’s e-mail if he merely read it, but once he praised it
without any correction, he affirmatively put management into the realm of endorsing
what Sandmeyer had written about management’s alleged retaliation for protected
activities (which was, in turn, based on Wurts’ earlier oral comments to Sandmeyer).
Indeed, even if Wurts never noticed that he was endorsing an e-mail linking a
decrease in lifeguard work opportunities to protected activity, the resulting tendency to
interfere with protected activities remains. Moreover, the City has not attempted to
assert any offsetting business need for Wurts’ e-mails to Sandmeyer on March 16 and
September 7.
23 As noted above, Sandmeyer later earned a promotion, though the complaint
did not allege this to constitute interference.

42
the Union’s leadership, meaning that this aspect of Wurts’ e-mails primarily relates to
the City’s interference with internal union affairs, as discussed post.
It is of no consequence whether Sandmeyer shared Wurts’ e-mails with any
other employees or Union representatives. Wurts’ coercion was unlawful even if no
one other than Sandmeyer knew of it. (See, e.g., Claremont Unified School District
(2019) PERB Decision No. 2654, pp. 19-24 [district’s conduct interfered with a single
employee’s statutory rights]; Chula Vista City School District (1990) PERB Decision
No. 834, p. 13 [a brief statement made only to one person is sufficient to support an
interference claim].) Furthermore, Wurts’ September 7 e-mail also tended to interfere
with others’ protected conduct given the possibility that Sandmeyer might forward it to
other employees or share the message contained in the e-mail.24 Indeed, the
characterization in Sandmeyer’s e-mail—that protected conduct had led to adverse
24 Member Shiners disagrees that the mere possibility Sandmeyer might have
forwarded or otherwise shared the content of Wurts’ September 7 e-mail with other
bargaining unit employees demonstrates a tendency to interfere with protected
conduct. (See Petaluma City Elementary School District/Joint Union High School
District (2018) PERB Decision No. 2590, p. 8 [“our cases require that employees or
union representatives hear, see, read, or otherwise perceive an employer’s allegedly
coercive statement to establish the prima facie case of interference”].) He would
instead find interference based on the narrower ground that Wurts’ e-mail indicated to
Sandmeyer that he would not “be held accountable” as other lifeguards would be for
the Union’s protected conduct and that he would instead enjoy management’s
protection—an implicit promise of benefit—if he continued to criticize Union
leadership. (See Arcadia, supra, PERB Decision No. 2648-M, pp. 28-30 [finding
interference in chief of police’s comments promising a benefit in exchange for
continued internal opposition to union leadership].)

43
action—was directly based on Wurts’ earlier oral comments to Sandmeyer, which well
illustrates how news of a manager’s interfering remark tends to spread.25
2. Analysis Under MMBA Section 3506.5, Subdivision (d)
MMBA section 3506.5, subdivision (d) relevantly proscribes public agencies
from “interfer[ing] with the . . . administration of any employee organization.” While
much PERB precedent addresses an employer’s duty to remain strictly neutral when
two different employee organizations are in competition with each other, an employer
also may violate this clause by interfering in an employee organization’s internal
affairs, even in the absence of competing unions. (Arcadia, supra, PERB Decision
No. 2648-M, pp. 22-34.)
To demonstrate such interference, a charging party must establish facts
showing that the employer’s conduct tends to interfere with the internal activities of an
employee organization. (Arcadia, supra, PERB Decision No. 2648-M, p. 24.) An
employer may not take a position on internal union affairs or put its thumb on the scale
in favor of or against a particular union leader. (Id. at pp. 25-30.)
In Arcadia, a police chief interfered in internal union affairs by offering an
incentive, or promising a benefit in exchange for, a change in union leadership.
(Arcadia, supra, PERB Decision No. 2648-M, pp. 28-30.) PERB found that a
reasonable employee would view the chief’s comments as favoring one faction in the
union over another. (Ibid.) Because the MMBA protects union members’ right to
25 The amended complaint did not contain a separate interference allegation
regarding Wurts’ oral comments to Sandmeyer, so we find no violation based on those
comments.

44
choose their union leaders without employer interference, PERB held that the
employer unlawfully inserted itself into internal union affairs by encouraging the
association to oust its president. (Id. at pp. 29-30.)
While this case is closer than Arcadia, Wurts put management’s thumb on the
scale against Harris’s leadership, both by implicitly promising that Sandmeyer’s
opposition to Harris would exempt him from being held “accountable” for the Union’s
protected conduct, as well as by unreservedly embracing Sandmeyer’s e-mail
asserting that Harris had caused a loss in sought-after lifeguard opportunities on the
SWR Team.26 Indeed, when Wurts, a member of Fennessy’s management team and
the head of the Lifeguard Division, endorsed the idea that Harris’s protected activities
caused Fennessy to retaliate, this was a heavy cudgel that would reasonably tend to
foment further internal Union actions against Harris. Moreover, as noted above, there
was no offsetting business need for Wurts’ e-mails to Sandmeyer. We therefore find
the City, through its agent Wurts, unlawfully interfered with internal union affairs.
In sum, two of Wurts’ three e-mails constituted unlawful interference, but we
dismiss the amended complaint’s allegation as to Wurts’ September 7, 2017 e-mail to
Fennessy and Webber.
ORDER
Based upon the foregoing findings of fact and conclusions of law, and the entire
record in this case, the Public Employment Relations Board (PERB) finds that the City
of San Diego (City) violated the Meyers-Milias-Brown Act (MMBA), codified at
26 Wurts did not include any language that can be interpreted as praising only
part of Sandmeyer’s message.

45
Government Code, § 3500 et seq. Specifically, the City violated MMBA sections 3503,
3506 and 3506.5, subdivisions (a), (b), and (d) and PERB Regulation 32603,
subdivisions (a), (b), and (d) by interfering with protected rights and with the internal
union activity of California Public, Professional and Medical Employees, Teamsters
Local 911 (Teamsters Local 911). All other allegations in the amended charge are
dismissed.
Pursuant to MMBA section 3509, subdivision (b), it hereby is ORDERED that
the City, its governing board, and its representatives shall:
A. CEASE AND DESIST FROM:
1. 	Interfering with protected rights by linking a decrease in lifeguard work
opportunities to protected activity by lifeguards or Teamsters Local 911; and
2. 	Interfering with the internal union affairs of Teamsters Local 911.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within 10 workdays after this decision is no longer subject to appeal, post at all
work locations in the City where notices to Teamsters Local 911-represented
employees customarily are posted, copies of the Notice attached hereto as an
Appendix. The Notice must be signed by an authorized agent of the City, indicating
that the City will comply with the terms of this Order. Such posting shall be maintained
for a period of 30 consecutive workdays. In addition to physical posting of paper
notices, the Notice shall be posted by electronic message, intranet, internet site, and
other electronic means customarily used by the City to communicate with its
employees in the bargaining units represented by Teamsters Local 911. Reasonable

46
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.27
2. 	Written notification of the actions taken to comply with the terms of this Order
shall be made to the General Counsel of the Public Employment Relations Board, or
the General Counsel’s designee. The City shall provide reports, in writing, as directed
by the General Counsel, or his designee. All reports regarding compliance with this
Order shall be served concurrently on Teamsters Local 911.
Members Banks and Shiners joined in this Decision.
27 In light of the ongoing COVID-19 pandemic, Respondent shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If Respondent
so notifies OGC, or if Charging Party requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
parties. OGC shall provide amended instructions to the extent appropriate to ensure
adequate publication of the Notice, such as directing Respondent to commence
posting within 10 workdays after a majority of employees have resumed physically
reporting on a regular basis; directing Respondent to mail the Notice to all employees
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing Respondent to mail the
Notice to those employees with whom it does not customarily communicate through
electronic means.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-1229-M, California Public,
Professional and Medical Employees, Teamsters Local 911 v. City of San Diego, in
which all parties had the right to participate, it has been found that the City of San
Diego violated the Meyers-Milias-Brown Act, Government Code sections 3503, 3506
and 3506.5, subdivisions (a), (b), and (d) and Public Employment Relations Board
Regulation 32603, subdivisions (a), (b), and (d) by interfering with protected rights and
with the internal union activity of California Public, Professional and Medical
Employees, Teamsters Local 911 (Teamsters Local 911).
As a result of this conduct, we have been ordered to post this Notice and we
will:
CEASE AND DESIST FROM:
1. 	Interfering with protected rights by linking a decrease in lifeguard work
opportunities to protected activity by lifeguards or Teamsters Local 911; and
2. 	Interfering with the internal union affairs of Teamsters Local 911.
Dated: _____________________ 	City of San Diego
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER
MATERIAL.