County of San Joaquin (PERB 1570M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 790,
Charging Party,
V.
COUNTY OF SAN JOAQUIN,
Respondent.
Case No. SA-CE-148-M
PERB 	Decision 	No. 	1570-M
December 	19, 	2003
Appearance: Weinberg, Roger & Rosenfeld by Matthew J. Gauger, Attorney, for Service
Employees International Union, Local 790.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Service Employees International Union, Local 790 (SEIU) of a
Board agent's dismissal of its unfair practice charge. The charge alleged that the County of
San Joaquin (County) violated the Meyers-Milias-Brown Act (MMBA) 1 by refusing to
participate in impasse procedures under the County's local rules.
After reviewing the record in this matter, including the warning and dismissal letters,
and SEIU's appeal, the Board reverses the Board agent's dismissal and remands this case to the
General Counsel's Office for further processing consistent with this decision.
1MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
In or around 1989, the San Joaquin Local Health District (Health District) dissolved
and the Health District's work and employees were absorbed by the County. The employees
of
the Health District were members
of
the California Public Employees Retirement System
(CalPERS). When the Health District employees were absorbed
by
the County, they
became
members
of
the County's retirement system. The County's employees were not members
of
CalPERS, but belonged to a retirement plan created under the County Employees' Retirement
Law
of
1937. The issue here involves the transfer
of
funds from CalPERS to the
County's
retirement system for the Health District's former employees.
The issue
of
the transfer
of
these funds was apparently a topic
of
discussion during
contract negotiations in 2001. In March 2001, the parties apparently reached agreement
on
a
new collective bargaining agreement without resolving the issue
of
the retirement funds.
However, the parties signed a side-letter agreement stating, in part, that:
The parties agree to continue discussions on the PERS Benefit
issues affecting former employees
of
the San Joaquin Local
Health District as outlined in the attached letter
of
October 27,
2000. Discussions will include representatives from the Union,
County, and PERS.
Following additional meetings, SEIU declared its belief that the parties were at impasse
on
May 29, 2003.
Because the charge is extremely vague, the exact nature
of
the dispute over which SEIU
alleged impasse is unclear. Based on letters attached to the charge, it appears that the parties
had been discussing two primary issues. First, SEIU had proposed enhancing the retirement
benefits
of
former Health District employees who were currently employed by the County.
Second, SEIU also proposed enhancing the retirement benefits of former Health District
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employees who had already retired. From the letters, it appears that the County agreed to
SEIU's proposal regarding current employees but rejected the proposal for retirees.
In any event, after declaring impasse SEIU requested mediation pursuant to the
County's local rules. 	Section 12
of
the County's local rules provides the following:
SECTION. 12. RESOLUTION OF IMPASSES
Impasse procedures may be invoked only after a deadlock in
negotiations has been reached.
A. 	Limitations
(1) 	Only San Joaquin County or a recognized
employee organization shall have the right to
invoke the impasse procedure as hereinafter
described.
(2) 	Mediation and fact-finding shall apply only to
disputes arising out
of
and in the context
of
the
annual salary and employee benefit meet and
confer sessions and where mutually agreed to
otherwise or as provided for in this Policy.
B. 	Impasse Initiation
Either the County or a recognized employee organization
shall initiate the procedure by filing with the other party a
written statement
of
impasse together with a statement
of
its position on the disputed issues. Such notice must be
filed within fourteen (14) days after the last meet and
confer session. Within five (5) days after receiving the
written notice a joint meeting shall be scheduled and held.
(Emphasis added.)
On June 11, 2002, the County informed SEIU
of
its position that the impasse
procedures were not applicable, since the dispute over the retirement funds arose from a side-
letter agreement after the completion
of
salary and benefit negotiations. Accordingly, the
County refused to participate in the impasse procedures. The parties thereafter had several
more meetings and had other exchanges of correspondence. On March 12, 2003, SEIU again
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requested that the dispute be submitted to the impasse procedures under the County's local
rules. On May 5, 2003, the County again declined the request. 	SEIU then filed this unfair
practice charge on June 2, 2003, alleging that the County violated PERB Regulation 32603(e)2
by refusing to participate in the impasse procedures provided by the County's local rules.
BOARD AGENT'S DISMISSAL
The Board agent first addressed the allegation that the County violated the MMBA by
refusing to participate in impasse procedures provided by local rules. The Board agent
concluded that Section 12
of
the County's local rules is designed to limit impasse procedures
to disputes "arising out
of
and in the context
of
the annual salary and employee benefit meet
and confer sessions." Noting that the side-letter agreement stated that the parties would
"continue discussions" and did not say that the parties would continue to "negotiate"
or
to
"meet and confer," the Board agent concluded that the discussions contemplated by the side-
letter did not qualify as a dispute under Section 12.
Even
if
the dispute was covered by Section 12, the Board agent held that SEIU's charge
would have to be dismissed, because SEIU failed to request mediation within the required
fourteen (14) days.
2PERB Regulation 32603(e) states, in part:
It shall be an unfair practice for a public agency to do any
of
the
following:
( e) Fail to exercise good faith while participating in any impasse
procedure mutually agreed to pursuant to Government Code
section 3505 or 3505.2 or required by any local rule adopted
pursuant to Government Code section 3507.
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SEIU' S APPEAL
In its appeal, SEIU challenges the Board agent's determination that the dispute over the
retirement funds did not constitute a "dispute arising out
of
and in the context
of
the annual
salary and employee benefit meet and confer sessions." SEIU asserts that there is no
difference between "discussions" and "negotiations." SEIU also argues that simply because
the discussions over the retirement funds were continued apart from the main table
negotiations does not mean they did not "arise" out
of
salary negotiations.
As for the timeliness
of
its request, SEIU argues that its first request, made on
May
29,
2002, was timely and that nothing thereafter broke the impasse. According to SEIU, when it
requested to submit the dispute to impasse on March 12, 2003, it was just repeating its request
made on May 29, 2002. Thus, SEIU argues that its request was timely.
DISCUSSION
Interpretation
of
County's Local Rules
The issue presented here is whether the County violated its own local rules in violation
of
PERB Regulation 32603(e). Under Section 12
of
the County's local rules, either party may
invoke impasse procedures involving a "dispute arising out
of
and in the context
of
the annual
salary and employee benefit meet and confer sessions." SEIU argues that the dispute
over
the
retirement funds meets this standard. The County counters that the dispute over the retirement
funds is wholly separate from salary negotiations and thus not subject to the impasse
procedures.
It is well-settled that a Board agent must accept the plain language
of
the contract or
rule where it is clear and unambiguous. (Glendora Unified School District (1991) PERB
Decision No. 876; Butte Community College District (1985) PERB Decision No. 555.)
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However, where the contract language or rule is unclear or ambiguous, the Board has held that
the parties should be given an opportunity to offer evidence to support their differing
interpretations at an evidentiary hearing. (Long Beach Community College District (2000)
PERB Decision No. 1378.) Here, SEIU argues that the side-letter agreement regarding the
retirement funds "arises out of and in the context of' of annual salary and benefit negotiations
within the meaning of the County's local rules. In support, SEIU asserts that the issue of the
retirement funds was first discussed during contract negotiations over employee salary and
benefits.
As the charging party, SEIU' s factual allegations must be accepted as true at this stage
of the proceedings. (Golden Plains Unified School District (2002) PERB Decision No. 1489;
San Juan Unified School District (1977) EERB3 Decision No. 12.) In light of SEIU's factual
allegations, the Board cannot find Section 12 of the County's local rules to be clear and
unambiguous. To the contrary, Section 12 appears to be reasonably susceptible to the
interpretation offered by SEIU. As discussed above, where a local rule is reasonably
susceptible to conflicting interpretations, the matter should be resolved at an evidentiary
hearing. Accordingly, the Board finds that the dispute over the retirement funds "arises out of
and in the context of the annual salary and employee benefit meet and confer sessions" for
purposes of establishing SEIU's prima facie case.
Timeliness
The Board also disagrees with the Board agent's determination that SEIU's March 12,
2003, request to submit the dispute to the impasse procedures of Section 12 was untimely.
3 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
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There is no evidence that the timelines under Section 12 are jurisdictional. Since the County
did not assert untimeliness as a defense in its May 5, 2003, response there is a question of
whether the County waived this defense. Indeed, the County itself is guilty of violating the
timelines, since it took more than five (5) days to respond to both of SEIU's requests. From
the facts, it appears that neither party has a history of strictly adhering to the timelines. In any
event, SEIU's contention that timeliness must be measured from its first request is reasonable
in light of its factual allegations and is sufficient to establish its prima facie case.
Scope of Representation
Based on the above discussion, the Board would normally order the issuance of a
complaint. However, the Board is not satisfied that SEIU has established that the dispute over
the retirement funds is a subject within the scope ofrepresentation. It is well-settled that a
party may not insist to impasse on non-mandatory subjects of bargaining. (Poway Unified
School District (1988) PERB Decision No. 680; Lake Elsinore School District (1986) PERB
Decision No. 603.) The specific issue in dispute between the parties appears to involve
enhanced retirement benefits for current employees and retirees. PERB has held that
retirement benefits for current employees is a mandatory subject of bargaining. (Temple City
Unified School District (1989) PERB Decision No. 782 (Temple); Jefferson School District
(1980) PERB Decision No. 133.) In contrast, retirement benefits for retirees - those who are
no longer employed by the employer- is only a permissive subject of bargaining. (Temple,
citing Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co. (1971) 404 U.S. 157
[78 LRRM 2974].) As noted above, it appears that the only issue in dispute between the
parties is SEIU's proposal to enhance retirement benefits for retirees. If this is true, then
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SEIU's charge must be dismissed, since SEIU may not insist to impasse on a permissive
subject of bargaining.
It is SEIU's burden to establish that the alleged impasse involves a subject within the
scope of representation. SEIU's vague charge fails to meet this burden. SEIU should be
provided an opportunity to correct this defect since it was not provided an opportunity to do so
in the Board agent's warning letter. Accordingly, the Board remands this case to the General
Counsel's office for further processing consistent with this decision.
ORDER
The Board REVERSES the Board agent's dismissal in Case No. SA-CE-148-M and
REMANDS this case to the Office of the General Counsel for further processing.
Members Whitehead and Neima joined in this Decision.
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