City of Commerce (PERB 1937M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

COMMERCE CITY EMPLOYEES
ASSOCIATION,
Charging Party, Case No. LA-CE-388-M
v. PERB Decision No. 1937-M
CITY OF COMMERCE, January 11, 2008
Respondent.

Appearances: David Twedell, Field Representative, for Commerce City Employees
Association; Liebert, Cassidy & Whitmore by Richard Kreisler, Attorney, for City of
Commerce.
Before Neuwald, Chair; Shek and Rystrom, Members.
DECISION

RYSTROM, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal of a Board agent’s dismissal (attached) of an unfair practice charge
filed by Commerce City Employees Association (CCEA) against the City of Commerce
(City). The charge alleges that the City violated section 3505 of the Meyers-Milias-Brown Act
(MMBA)’ by making a unilateral change in working conditions without giving CCEA notice
and an opportunity to bargain and that the City failed to follow its local rules in violation of the
MMBA.

Specifically, the charge alleges that the City refused to respond to CCEA member

Hugo Lopez’s (Lopez) grievance contrary to the City’s personnel rules requiring a response

within ten days.

'MMBA is codified at Government Code section 3500, et seq.

The Board agent provided CCEA with a warning letter indicating the deficiencies in the
charge resulting in its failure to state a prima facie case. The deficiencies included a failure to
allege sufficient facts to show that the City had breached a written agreement or past practice;
failure to allege that the violation had a generalized effect or continuing impact; and failure to
provide the terms
of
the City's personnel rules which had been violated. Upon CCEA's failure
to respond to this warning letter, the Board agent dismissed CCEA's complaint because it did
not state a prima facie case as outlined in the Board agent's warning letter.
Having considered the parties filings, arguments and submissions on appeal, with
certain limitations discussed below, the Board agent's warning and dismissal letters and the
entire record before the Board, we affirm the dismissal
of
the charge. Because the Board
agent's warning and dismissal letters are a correct statement
of
the law and well reasoned, we
adopt them as the decision
of
the Board itself, subject to the following discussion.
DISCUSSION
On appeal CCEA claims that this is a simple case
of
an employer refusing to process a
grievance and that the charge should not have been dismissed due to lack
of
documentation.
As part
of
its appeal CCEA submits "the relevant portions
of
the grievance procedure in the
MOU[2] governing Mr. Lopez's terms and conditions
of
employment" and argues that the
City's failure to respond to the grievance, pursuant to the MOU's grievance procedures, is an
unfair practice.
PERB cannot consider either these new allegations regarding the MOU grievance
procedures or CCEA's new evidence
of
the MOU provisions presented in its appeal. PERB
2"MOU" refers to the 2003-2006 Memorandum of Understanding governing the terms
and conditions of employment in effect at the time of the City's alleged MMBA violations.
2

Regulation 32635(b
)3
provides that unless good cause is shown, new charge allegations and
new evidence may not be presented on appeal. CCEA makes no attempt to argue that there
is
good cause to consider its new allegations or evidence.
CCEA continues to argue on appeal that the City's failure to follow its own personnel
rules is a violation
of
the MMBA notwithstanding CCEA's failure to specify or provide a copy
of
these local rules. PERB Regulation 32615(a)(4) requires that under the MMBA a charge
must include the applicable local rules alleged to have been violated.
ORDER
The unfair practice charge filed by the Commerce City Employees Association in Case
No. LA-CE-388-M is hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chair Neuwald and Member Shek joined in this Decision.
3PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
3

ST ATE OF CALIFORNIA 	I 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMEN1' RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
August 27, 2007
Dave Twedell
Commerce City Employees Association
254-B Lindero Avenue
Long Beach, CA 90803
Re: 	Commerce City Employees Associationv. City of Commerce
Unfair Practice Charge No. LA-CE-388-M
DISMISSAL LETTER
Dear Mr. Twedell:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERE or Board) on July 31, 2007. The Commerce City Employees Association
(Union) alleges that the City of Commerce violated the Meyers-Milias-Brown Act (MMBA)1
by unilaterally changing the grievance procedure in place between the Union and the City and
by violating the City's local personnel rules regarding grievances.
I indicated to you in my attached letter dated August 14, 2007, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. 	You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to August 22, 2007, the charge wouldbe
dismissed.
I have not received either an amended charge or a request for withdrawal. 	Therefore, I am
dismissing the charge based on the facts and reasons contained in my August 14, 2007 letter.
Right to Appeal
Pursuant to PERE Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERE 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-388-M
August 27, 2007
Page 2
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is
also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
Regulation 32135(d), provided the filing party also places the original, together with the
required number
of
copies and proof of service, in the U.S. mail. (Regulations 32135(b), (c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited in the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service
of
the
request upon each party. 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.

LA-CE-388-M
August 27, 2007

Page 3

Sincerely,

TAMIR. BOGERT - val
General Counsel oa ; /, je

fo

Eric 1 Su? -.— na
Regional Attorney

Attachment

cc: Arlin B. Kachalia

STATE
OF
CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 1435
Los Angeles, CA 90010-2334
Telephone: (213) 736-2907
Fax: (213) 736-4901
August 14, 2007
Dave Twedell
Commerce City Employees Association
254-B Lindero Avenue
Long Beach, CA 90803
Re: 	Commerce City Employees Association
v.
City
of
Commerce
Unfair Practice Charge No. LA-CE-388-M
WARNING LETTER
Dear Mr. Twedell:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 31, 2007. The Commerce City Employees Association 1
(Union) alleges that the City
of
Commerce violated the Meyers-Milias-Brown Act (MMBA)
by unilaterally changing the grievance procedure in place between the Union and the City and
by violating the City's local personnel rules regarding grievances.
The Union is the exclusive representative
of
the miscellaneous bargaining unit in the City. 	On
January 8, 2007, Robert Chavez, Department Head, wrote a letter evaluating the performance
of
unit member Hugo Lopez. The letter gave Lopez a poor performance evaluation and
discussed attendance problems and an "unsatisfactory work relationship" with management.
Lopez submitted a written rebuttal letter within the applicable time limits of the City's
personnel rules. 	Lopez also presented an informal verbal grievance, relating to his evaluation,
to Chavez on or about January 24, 2007. 	According to the charge, the personnel rules
of
the
Employer gave the City 10 days to respond to the grievance, which it did not do.
On or about February 13, 2007, Union officer, David Twedell, sent Human Resources
Director, Teresa McAllister an e-mail, where he discussed Chavez's evaluation and Lopez's
disagreement with "virtually everything that was in the statement." Twedell informed
McAllister that Lopez had submitted a written response to the evaluation as well as
"conduct[ed] an informal grievance discussion with [Chavez] as provided by the personnel
rules." Twedell informed McAllister that the City had not made a timely response under the
personnel rules. Twedell demanded that Chavez's letter should be "deemed null and void."
On the same day, in an e-mail response, McAllister disagreed with Twedell and stated that she
believed that Lopez had submitted "his 'rebuttal' to the performance evaluation," which was
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-388-M
August 14, 2007
Page 2
placed in his personnel file along with the performance evaluation. McAllister stated that the
City was not aware that a grievance was filed.
Discussion
The Union alleges that the City unilaterally changed the grievance procedure by not
responding to Lopez's informal verbal grievance or written rebuttal to his performance
evaluation.
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),2 PERB utilizes either the "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
process. 	(Stockton Unified School District (1980) PERB Decision No. 143.)3 Unilateral
changes are considered "per se" violations if certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. 	(Vernon Fire Fighters
v.
City
of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; San Joaquin County Employees
Association
v.
City of Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School
District (1982) PERB Decision No. 196; Walnut Valley Unified School District (1981) PERB
Decision No. 160.)
In order to satisfy the first element
of
a unilateral change case, Charging Party must establish
that the Employer "breached or altered the parties' written agreement or established past
practice ... and that the change has a generalized effect or continuing impact on the terms and
conditions
of
employment
of
bargaining unit members" (State
of
California (Department
of
Forestry and Fire Protection) (1998) PERB Decision No. 1260-S.) In this case, the Union
does not provide sufficient facts to show that the City has breached a written agreement or past
practice. 	Charging Party references a grievance procedure but does not establish what the
terms or past practices of this procedure are. Therefore, Charging Party does not establish that
the City's conduct violated the terms of the grievance procedure. Even if Charging Party
establishes a violation of a past practice or a written agreement, Charging Party fails to
establish that the violation has a generalized effect or continuing impact on unit members. 	An
isolated breach of contract does not state a prima facie case for a unilateral change. 	(Trustees
of the California State University (1997) PERB Decision No. 1231-H.)
Charging Party also alleges a violation of the Personnel Rules for the City of Commerce.
PERB has authority to review as an unfair practice charge the violation of local rules and
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CE-388-M
August 14, 2007
Page 3
regulations passed by a public agency pursuant to Section 3507 or 3507.5. (MMBA, §
3509(b); PERB Regulation 32604(e).)
According to Charging Party, Section IV,
E.
3, a of the Rules states:
Definition of a Grievance: A grievance shall be defi
timely complaint by and [sic] employee or group of employees
concerning the personnel practices and working conditions of the
City.
ned as a
Charging Party fails to establish how the City has violated its local rules. Even if, as the Union
contends, the City failed to respond to Lopez's informal grievance, it is unclear how the City's
failure constitutes a violation of the Section IV, E. 3,
a.
	And as discussed above, Charging
Party does not provide the terms
of
the City's grievance procedure leaving PERB unable to
determine whether the City violated this procedure. The Union provides insufficient
information to conclude the City violated its local rules.
For these reasons the charge, as presently written, does not state a prima
fade
case.	
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before August 22, 2007, I shall dismiss your charge.
If
you have/~~Y.,-GP~,tions, please call me at the above telephone number.
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