City of Torrance (PERB 1971M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TORRANCE MUNICIPAL EMPLOYEES,
AFSCME LOCAL 1117,

Charging Party, Case No. LA-CE-316-M
V.
CITY OF TORRANCE, PERB Decision No. 1971-M
Respondent. August 21, 2008

CITY OF TORRANCE,
Charging Party, Case No. LA-CO-43-M

Vv.

TORRANCE MUNICIPAL EMPLOYEES,
AFSCME LOCAL 1117,

Respondent.

Appearances: Reich, Adell & Cvitan by Marianne Reinhold, Attorney, for Torrance Municipal
Employees, AFSCME Local 1117; Ronald T. Pohl, Assistant City Attorney, for City of
Torrance.
Before Neuwald, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: These consolidated cases come before the Public
Employment Relations Board (PERB or Board) on exceptions by the Torrance Municipal

Employees, AFSCME Local 1117 (AFSCME) and the City of Torrance (City) to the proposed

decision of a PERB administrative law judge (ALJ). AFSCME’s charge alleged that the City

violated the Meyers-Milias-Brown Act (MMBA) 1 by retaliating against City library employee
and AFSCME President Jeannie Moorman (Moorman) because AFSCME campaigned against
the successful candidate in a mayoral election. AFSCME alleged that the City retaliated
against Moorman by: (1) reducing her union business release time from five days per week to
three days per week; and (2) demanding she reimburse the City for release time she had taken
in excess
of
three days per week over a six-month period. The City's charge alleged that
AFSCME refused to meet and confer over the City's proposal to reduce presidential release
time to one day per week. The ALJ found both parties committed the charged violations.
The Board has reviewed the entire record in this case, including but not limited to, the
unfair practice charges, the complaints and answers, the hearing transcripts and exhibits, the
ALJ's proposed decision, the parties' exceptions and supporting briefs, and the parties'
responses thereto. Based on this review, we affirm the violations found by the ALJ for the
reasons discussed below. 	We also adopt the ALJ's proposed orders as modified herein.
BACKGROUND
2002 Presidential Release Time Agreement
In early 2002, AFSCME and the City participated in binding arbitration over the issue
of
union business release time for the AFSCME president. Following a hearing, but before the
arbitrator issued a decision, the parties entered into a settlement agreement. The June 20, 2002
agreement (2002 Agreement) provided that the AFSCME president would be released for
union business on Tuesday, Wednesday and Thursday
of
each week. The president would be
required to report to his or her regular work assignment on Mondays and Fridays. However,
the president could "swap" a scheduled work day for a union business day by giving the City's
1MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2
M
2

3
labor relations manager 48 hours notice of the swap. The agreement also stated that three
infractions of the agreement within one fiscal year would be grounds for discipline.
AFSCME and City representatives signed the 2002 Agreement and submitted it to the
city clerk pursuant to Torrance Municipal Code section 14.8.14, which states, in relevant part:
If agreement is reached [by management and a recognized
employee organization] on matters not subject to approval by the
City Council, those conferring shall jointly prepare a written and
signed memorandum of such agreement which shall be filed with
the City Clerk.
Additionally, section 14.8.2(0) of the Municipal Code defines a memorandum of
understanding (MOU) as:
a written document jointly prepared by management and a
recognized employee organization or organizations enumerating
any agreement reached as the result of meeting and conferring in
good faith on matters within the scope of representation, and
signed by the parties involved.
Pre-Election Events
In 2004, AFSCME supported Measure T, which would place the City's municipal
election on the same date as the California primary. Councilman Frank Scotto (Scotto)
opposed the measure. Voters approved Measure T in that year's municipal election.
3
During the spring of 2005, AFSCME and the City were negotiating an MOU to succeed
the one that would expire on June 30, 2005. Sometime in March 2005, Moorman (then serving
as vice-president), AFSCME President Alan Lee (Lee) and AFSCME Secretary Greg Ferguson
(Ferguson) met with Scotto about the negotiations. At this meeting, Scotto told Lee and
Ferguson he was angry with them for speaking out against Measure Tat city council meetings
and, as a result, he would have difficulty working with them. He said he could still work with
Moorman because she "hadn't done anything yet." Scotto then warned AFSCME not to get
involved in the upcoming mayoral election, in which Scotto was challenging incumbent Dan

Walker (Walker). 	Scotto also said that when he became mayor, AFSCME should not come to
him for anything. 	Scotto refused to shake hands with Lee and Ferguson at the end
of
the
meeting. Soon after this meeting, Lee went to work for AFSCME International; Moorman
became president
of
AFSCME and Ferguson became vice-president.
On August
9,
2005, during the public comment portion
of
a Torrance City Council
meeting, Moorman asked Scotto to respond to allegations that he had used his official position
to influence the development
of
a parcel
of
land adjacent to his business. Both AFSCME's
membership and board
of
directors had voted for her to ask those questions at the City Council
meeting. The official minutes
of
the meeting indicate that Moorman stated she was asking the
questions "on behalf
of
her board and members." The record did not show that Moorman
addressed Scotto at any other city council meeting during 2005 or 2006. On August 14, 2005,
the Daily Breeze newspaper published a letter to the editor from Moorman, identified as
AFSCME president, asking the same questions she posed at the city council meeting.
Moorman's Transition to Five Day Release Time
4
During the fall
of
2005, Moorman discussed with library management the difficulties
she was having completing her work because she was spending three days a week on union
business. To remedy this situation, library management and the city manager proposed a
budget modification that would shift the cost of the AFSCME president's release time to the
city manager's office, thereby allowing the library "to hire an employee for coverage
of
functions formerly performed by the Union President." Although the proposed modification
noted that the 2002 Agreement provided for presidential release time on Tuesdays,
Wednesdays and Thursdays, the modification was silent as to whether it would allow the
president release time on more than those three days.

5
The City Council's Finance and Governmental Operations Committee approved the
library staffing modification on December 20, 2005. The record contains no evidence that the
committee discussed increasing Moorman' s release time or amending the 2002 Agreement as
part of the modification. Immediately after the finance committee meeting, which Moorman
attended, City Librarian Paula Weiner (Weiner) told Moorman that once the city council
adopted the budget modification, Moorman would be released full time for union business.
Soon after, Weiner and Patrice Deleget (Deleget), Moorman's immediate supervisor, told
Moorman to clean out her desk and make sure the employee who would be replacing her knew
the passwords for her computer and voicemail. It is unclear as to who, if anyone, authorized
Weiner and Deleget to convey this course of action to Moorman.
At the January 10, 2006 city council meeting, the City's finance director presented to
the council proposed modifications to the City's first quarter budget, including the library
staffing modification. Scotto then reported on the December 20, 2005 committee meeting,
"noting that the committee also reviewed the proposed program modifications in their
entirety." Following Scotto's report, the city council unanimously adopted the City's first
quarter budget package, which included the library staffing modification. Again, the record
contains no evidence that the city council discussed increasing Moorman's presidential release
time or amending the 2002 Agreement as part of the modification.2
On January 13, 2006, Deleget e-mailed library staff that she had been informed by
Norm Reeder, the library services manager, "that Jeannie Moorman will be starting to work on
what effect, if any, the modification would have on the president's release time.
It is troubling that neither the finance committee nor the city council raised the issue of
the status of the president's release time because the language of the proposed modification is
frustratingly ambiguous. 	Some parts seem to indicate that the president will continue taking
only three days of release time per week while others suggest that the president will work full
time on union business. Yet, according to the record, not a single member sought to clarify
what effect, if any, the modification would have on the president's release time.

6
Union duties full time immediately, so will not be returning to her duties at the library except
possibly to clean out some
of
her files." 	On February 8, Weiner e-mailed library staff about
personnel changes. Her e-mail stated: "Melissa replaces Jeannie Moorman, who is currently
serving as AFSCME President on a full-time basis." However, the record is silent as to who,
if
anyone, actually authorized an email indicating that Moorman would relinquish her library
duties in their entirety so that she could perform union business full-time.
Beginning in early January 2006, Moorman spent five days per week on union business.
On her timesheets, she coded each
of
those days as president release time. 	In late January,
Moorman went out on medical leave due to a broken ankle. Ferguson filled in as AFSCME
president until Moorman returned to work in mid-April. During that time, Ferguson spent
three days per week on union business. Upon her return, Moorman again used presidential
release time five days per week.
During the spring 2006 mayoral campaign, AFSCME actively supported incumbent
Mayor Walker against challenger Scotto because AFSCME believed Scotto was less favorable
to unions. 	Several days before the election, Moorman recorded a "robocall" in which she said
that Scotto was being investigated by the district attorney's office; the recording did not
reference her position as AFSCME president. She also wrote another letter to the editor
criticizing Scotto in which she identified herself only as a City employee. On June 6, 2006,
Scotto was elected mayor.
On or about June 26, 2006, Brian Sunshine (Sunshine), assistant to the city manager,
called the library to speak with Moorman. 	Weiner told Sunshine that Moorman worked for the
city manager's office now pursuant to the budget modification. Sunshine informed City
Manager LeRoy Jackson (Jackson) and Assistant City Manager Mary Giordano (Giordano) of
this conversation. Giordano requested Moorman's payroll records for the past six months. 	She

7
did not speak with Moorman or Weiner about the increased amount of release time. 	On
June 28, Weiner sent Moorman a memorandum stating that, per the city manager, Moorman
was to report for work at the library on Mondays and Fridays.
Moorman's Post-Election Conversations with City Management
Following her receipt of the June 28, 2006 memorandum, Moorman called City
Manager Jackson. 	She told Jackson she believed the City reduced her presidential release time
because she backed the wrong candidate in the election. She said the punishment seemed
harsh and retaliatory; Jackson did not deny Moorman's characterizations. Moorman offered to
show Jackson the e-mails from Deleget and Weiner saying that she was on release for union
business full time., Jackson responded that he did not need to see the e-mails.3
Moorman met with Mayor-elect Scotto on July 6, 2006. Scotto told Moorman he had
been briefed on the release time issue. Moorman showed him the Deleget and Weiner e-mails.
She also told Scotto she felt the reduction of her release time as punishment for backing the
wrong candidate was harsh. 	While Scotto did not specifically address Moorman's release
time, he said he was "disappointed" in her for asking him questions at the city council meeting
and that he would hold her "personally responsible." Scotto also said he could not work with
AFSCME as long as Moorman was president.
Correspondence and Meetings About Presidential Release Time
On July 27, 2006, Moorman filed a grievance over the City's order that she report for
work on Mondays and Fridays. Without speaking with Moorman or any library management,
Assistant City Manager Giordano rejected the grievance on August 3. In the rejection letter,
Giordano stated that the City was merely enforcing the 2002 Agreement, which provided for
3Because Jackson did not testify at the hearing, these facts are based solely on
Moorman's testimony.	Moorman's testimony.
7

only three days per week of presidential release time. 	She also noted that any Monday or
Friday Moorman spent on union business without providing notice "was unauthorized time
away from your job at the Library and an infraction of the agreement." On August 14,
AFSCME appealed the grievance to the principal librarian.
On August 15, 2006, Giordano sent Moorman a letter saying she had reviewed
Moorman's payroll records and discovered Moorman had taken 19.9 days of unauthorized
release time. The letter asked Moorman to provide in writing within ten days "if you want the
time charged to vacation or if you prefer to repay the City for the days charged that appear to
have exceeded the AGREEMENT." The letter also advised Moorman of a new method for
coding presidential release time on her timesheets. 	Giordano did not speak to Moorman or
library management about Moorman's release time prior to sending this letter.
On August 21, 2006, AFSCME's counsel sent a letter to Giordano claiming that the
change in presidential release time was an unlawful unilateral change and that it constituted
retaliation against Moorman. Attached to the letter were the Deleget and Weiner e-mails
referencing Moorman' s full time status as AFSCME president. The letter also stated: "This
letter shall serve as a demand that the City commence the meet and confer process with
Local 1117 immediately on the subject of release time for the Union President."
Giordano responded by letter on August 23. She accepted AFSCME's demand to meet
and confer over presidential release time. She also stated that the City agreed to "defer its
request for reimbursement" of the 19.9 days of release time "pending resolution of release time
issues." Giordano testified that Jackson had decided to forego seeking reimbursement of the
release time based on the Deleget and Weiner e-mails attached to the August 21 letter from
AFSCME's counsel. On August 28, AFSCME filed its unfair practice charge.
8

AFSCME and the City held a meet and confer session on September 7, 2006. The City
presented a written proposal to rescind the 2002 Agreement and amend the MOU to provide
for one day per week of presidential release time. AFSCME took the position that the 2002
Agreement was not subject to renegotiation and therefore it was only willing to discuss the
City's order that Moorman report for work on Mondays and Fridays. The following day the
City requested in writing to meet and confer over its proposal. On September 12, AFSCME
responded that it would not meet and confer over the 2002 Agreement but only over "the
reduction of the president's release time pertaining to the Mondays and Fridays."4 The City
responded on September 25 that AFSCME' s limitation of the scope of the meet and confer
process to only its presidential release time issue was bad faith bargaining and "has compelled
the City to file an unfair labor practice" with PERB. 	The letter further noted that the 2002
Agreement remained in effect and directed Moorman to follow certain steps to avoid
infractions under the agreement. 	The City filed its unfair practice charge on September 29.
On October 3, 2006, AFSCME and the City met again to discuss presidential release
time. The City presented a written proposal that the parties agree to dismiss their unfair
practice charges and meet and confer in good faith over "all issues regarding Union President
release time." AFSCME responded by letter on October 16 that it would not meet and confer
over the 2002 Agreement. On October 20, City Manager Jackson responded: "The City will
not be a participant in bad faith negotiations as proposed by AFSCME with the limiting of
discussions at the bargaining table to only those of [AFSCME]."
9
" Also on September 12, 2006, Moorman filed a grievance claiming that the City's
demand that she repay 19.9 days of union release time was retaliation for Moorman's protected
activity of campaigning against Scotto. The City responded on September 19 that it was
ceasing its efforts to recoup the 19. 9 days of release time.

ALJ' s Proposed Decision
The ALJ concluded that the City retaliated against Moorman because of her protected
activity. The ALJ found that Moorman's conduct as AFSCME president, including
campaigning against Scotto, constituted protected activity of which the City had knowledge.
He also found that the City took adverse action against Moorman by reducing her release time
to three days per week and demanding reimbursement for 19 .9 days of allegedly unauthorized
release time. The ALJ found a nexus between Moorman's protected activity and the City's
adverse actions because: (1) the adverse actions occurred shortly after Scotto was elected
mayor; (2) the City conducted a cursory investigation of Moorman' s use of release time; and
(3) Jackson's statements to Moorman in late June indicated union animus on the part of the
City. The ALJ further found that Scotto's statements to Moorman in the July 6, 2006 meeting
interfered with Moorman's rights under MMBA because they "would tend to discourage her
from continuing to serve as president" of AFSCME. 	The ALJ ordered the City to restore
Moorman to five days per week of release time through the end of her term or until the parties
negotiated a new agreement on the subject, whichever came first.
The ALJ also concluded that AFSCME failed to meet and confer in good faith by	The ALJ also concluded that AFSCME failed to meet and confer in good faith by
limiting the scope of bargaining to the City's alleged reduction of presidential release time
from five days to three days per week. The ALJ found that the 2002 Agreement was not part
of the 2005-2007 MOU between the parties and therefore it was open to renegotiation at
anytime. The ALJ ordered AFSCME to meet and confer in good faith over the issue of
presidential release time.
10

(1)
(6)
(7)
(8)
11
City's Exceptions
(2)
The City makes the following exceptions to the ALJ's proposed decision:	The City makes the following exceptions to the ALJ's proposed decision:
(1) 	Moorman's campaigning against Scotto was not protected activity under
MMBA;
(2) 	Scotto's union animus cannot be imputed to the City;
(3)
(4)
(3) 	The ALJ failed to acknowledge that enforcement of the 2002 Agreement
provided a legitimate business reason for the City's actions;
(4) 	The ALJ erroneously credited Moorman's testimony over Scotto's;
(5)	(5) 	MMBA does not provide for a retaliation claim;
(6) 	The evidence does not support the ALJ' s finding that the City conducted an
inadequate investigation;
(7) 	The ALJ improperly drew an adverse inference against the City based on
Jackson's failure to testify; and
(8) 	The proposed order fails to require AFSCME to reimburse the City for "days of
release time it acquired" by its refusal to bargain over presidential release time.
AFSCME's Exceptions
AFSCME excepts solely to the ALJ's conclusion that it violated MMBA by refusing to
meet and confer over the 2002 Agreement. AFSCME argues that: (1) the City violated its	meet and confer over the 2002 Agreement. AFSCME argues that: (1) the City violated its
duty to bargain in good faith by conditioning further bargaining on the parties withdrawing
their PERB charges; and (2) the City waived its right to bargain over presidential release time
by entering into the 2002 Agreement. 5
11
5AFSCME also asserts that the City's exceptions 3, 5 and 6 fail to satisfy PERB
Regulation 32300(a)(2) (Cal. Code of Regs., tit. 8, sec. 31001 et seq.) because they don't	Regulation 32300(a)(2) (Cal. Code of Regs., tit. 8, sec. 31001 et seq.) because they don't
"[i]dentify the page or part of the decision to which each exception is taken." While this is
technically true, it is possible from the exception headings and content to identify the portion

DISCUSSION
Retaliation
To establish a prima facie case
of
retaliation in violation
of
MMBA section 3506 and
PERB Regulation 32603(a), the charging party must show that: 	(1) the employee exercised
rights under MMBA; (2) the employer had knowledge
of
the exercise
of
those rights; and (3)
the employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained, or coerced the employee because
of
the
exercise
of
those rights. (Campbell Municipal Employees Assn. v. City
of
Campbell (1982)
131
Cal.App.3d 416 [182 Cal.Rptr. 461] (Campbell); San Leandro Police Officers Assn. v.
City
of
San Leandro (1976)
55
Cal.App.3d 553 [127 Cal.Rptr. 856] (San Leandro).)
Although the timing
of
the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor, it does not, without more, demonstrate
the necessary connection or "nexus" between the adverse action and the protected conduct.
(Moreland Elementary School District (1982) PERB Decision No. 227.) Facts establishing one
or more
of
the following nexus factors should be present: (1) the employer's disparate
treatment
of
the employee (Campbell); (2) the employer's departure from established
procedures and standards when dealing with the employee (San Leandro); (3) the employer's
inconsistent or contradictory justifications for its actions (San Leandro); (4) the employer's
cursory investigation
of
the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering
of
exaggerated, vague, or
ambiguous reasons; or (6) employer animosity towards union activists (San Leandro;
of the decision to which the City is excepting. Thus, given that PERB has never before
rejected exceptions on this technical ground, we decline to do so here.
12
DISCUSSION
12

Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683
[214 Cal.Rptr. 350].).
In its exceptions, the City does not directly challenge the ALJ' s conclusion that the City
retaliated against Moorman because of her protected activity. Instead, the City argues that
MMBA does not "establish a 'retaliation' claim for relief." The City bases this argument on
the fact that neither MMBA section 3506 nor PERB Regulation 32603(a) uses the word
"reprisal" in listing conduct that constitutes an unfair practice by a public agency under
MMBA. 6 Nonetheless, PERB has held that reprisals constitute a prohibited form of
discrimination under MMBA. 	(County of San Joaquin (Health Care Services) (2003) PERB
Decision No. 1524-M (San Joaquin).) This is consistent with cases decided under section
8(a)(3) of the National Labor Relations Act (NLRA), which also prohibits discrimination but
does not specifically mention reprisals or retaliation.7 (E.g., Central Valley Meat Co. (2006)
346 NLRB 1078, 1079 [179 LRRM 1281] [finding employer violated section 8(a)(3) by
discharging an employee "in retaliation for his union activities"].)8 Accordingly, the ALJ
properly characterized and analyzed the alleged MMBA section 3506 violation as a retaliation
claim.
6Both provisions state that it is an unfair practice for a public agency to "interfere with,
intimidate, restrain, coerce or discriminate against public employees because of their exercise"
of rights under MMBA.
7
13
Section 8(a)(3) of the NLRA, codified at 29 U.S.C. section 158(a)(3), provides that it
is an unfair labor practice for an employer "by discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage or discourage membership
in any la	in any labor organization."
8
'
13
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the NLRA and California labor relations statutes with parallel provisions. (Fire	interpreting the NLRA and California labor relations statutes with parallel provisions. (Fire
Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507].)

Protected Activity	Protected Activity
AFSCME alleged that the City took adverse action against Moorman because AFSCME
supported Scotto' s opponent in the mayoral election and Moorman personally campaigned
against Scotto. In Fresno County Office
of
Education (2004) PERB Decision No. 1674, PERB
addressed whether union officers' political activity is protected under the Educational
Employment Relations Act (EERA).9 In that case, two longtime union officers had actively
opposed the re-election
of
the County Superintendent
of
Education in several elections.
Additionally, one
of
the officers had authored a newspaper article criticizing the superintendent
for hiring an ex-felon as an assistant. The Board found that because they were acting in their
capacity as union officers when they engaged in the political activity, it was protected activity
under EERA.
AFSCME opposed Scotto's candidacy for mayor because it perceived him to be less
favorable to unions than incumbent Mayor	favorable to unions than incumbent Mayor Walker. As AFSCME's president, Moorman	Walker. As AFSCME's president, Moorman
necessarily played a significant role in	necessarily played a significant role in coordinating the union's active election campaign	coordinating the union's active election campaign
against Scotto. As part
of
the campaign, Moorman personally questioned Scotto at a city
council meeting about alleged misconduct. AFSCME's governing board and its members
voted to authorize this questioning and the meeting minutes reflect that Moorman stated she
was speaking on behalf
of
AFSCME. Moorman also wrote a letter critical of Scotto that was
published in the local newspaper. The letter identified her as the AFSCME president. Because
Moorman undertook these political activities in her capacity as AFSCME president, they were
protected activity under MMBA. 10
0
14
9EERA is codified at Government Code section 3540 et seq.
10Inaddition to these activities, Moorman wrote a second letter to the editor and
recorded a "robocall" criticizing Scotto. Neither addressed issues of employer-employee

15
In its exceptions, the City argues that Moorman's political activity was not protected
because it did not pertain to employer-employee relations. Moorman's questions and letter to
the editor involved accusations that Scotto improperly used his position on the city council to
influence property development. However, they were made in the context
of
an organized
effort by AFSCME to oppose Scotto' s candidacy for mayor. 	Opposing a candidate perceived
as less favorable to unions is a matter
of
employer-employee relations because the election
of
that candidate could have a detrimental effect on those relations and, in turn, on the working
conditions
of
AFSCME's members. Thus, we find no merit to this exception.
11
"
Adverse Action
"I
To prove its retaliation claim, AFSCME must establish that the City took adverse action
against Moorman because she engaged in activity protected by MMBA. The test for an
adverse action is "whether a reasonable person under the same circumstances would consider the
action to have an adverse impact on the employee's employment." (City and County
of
San Francisco (2004) PERB Decision No. 1664-M.) The ALJ found that the City took two
actions adverse to Moorman: (1) reducing her release time from five days to three days per
week; and (2) demanding that she reimburse the City for 19.9 days
of
allegedly unauthorized
release time taken during the prior six months.
relations or identified Moorman as an AFSCME officer. Accordingly, the letter and recording
were not protected activity under MMBA.
11 1n
its exception, the City relies on United Auto Workers v. National Labor Relations
Board (D.C. Cir. 1981) 645 F.2d 1151 [106 LRRM 2561], in which the court found that union
members' distribution of flyers supporting candidates for state and federal office was not
protected activity because it did not relate to employer-employee relations. 	That case is
inapposite because, unlike those candidates, Scotto was running for a position on the governing
board of AFSCME members' employer and therefore AFSCME's political activity was related
to matters of employer-employee relations.
15

We disagree with the
ALJ'
s finding that the City took adverse action against
Moorman
by ordering her to report to the library for work on Mondays and Fridays per the 2002
Agreement. It is not an unfair practice for an employer to enforce a clear contractual right,
even
if
it has not done so in the past. 	(Marysville Joint Unified School District (1983)
PERB
Decision No. 314 (Marysville).) In Marysville, the collective bargaining agreement
provided
that teachers would have a duty-free lunch period
of
no less than 30 minutes. Nonetheless, the
district had regularly allowed teachers to take a 55 minute lunch break. The Board found that
the district's assignment
of
lunchtime supervision duties that still left teachers with a 30 minute
lunch break was not an unfair practice because the action fell within the district's clear
contractual right to limit lunch breaks to 30 minutes. Here, the 2002 Agreement provided for
presidential release time on Tuesdays, Wednesdays and Thursdays only. Accordingly, the City
did not take adverse action against Moorman by enforcing its clear contractual right to limit
her release time to those days.
16
Nevertheless, we agree with the ALJ that the City's demand that Moorman reimburse it
for 19.9 days of release time was an adverse action because reimbursement would result in loss
of
pay or vacation leave. Additionally, the demand arose out
of
an investigation into whether
Moorman took release time without authorization. The initiation of an investigation into	Moorman took release time without authorization. The initiation
of
an investigation into
alleged misconduct constitutes an adverse action against the investigated employee. (State
of
California (Department of Youth Authority) (2000) PERB Decision No. 1403-S.) This is so	California (Department
of
Youth Authority) (2000) PERB Decision No. 1403-S.) This is so
even
if
the investigation does not ultimately result in discipline. (California Union
of
Safety
Employees (Coelho) (1994) PERB Decision No. 1032-S.) As the City noted in several letters
to Moorman, unauthorized use
of
presidential release time could subject her to discipline under
the 2002 Agreement. Thus, under these circumstances both the City's demand for
16

17
reimbursement
of
release time, and the investigation out
of
which it arose, constituted adverse
actions against Moorman.
Timing
To establish the necessary causal nexus between Moorman's protected activity and the
City's adverse actions against her, AFSCME must show that they occurred close in time to one
another. While Moorman's public statements about alleged misconduct by Scotto occurred in
August 2005, AFSCME actively campaigned against Scotto up until the June 6, 2006 election.
Moorman was involved in the campaign in her role as AFSCME president.
Soon after Scotto was elected mayor on June 6, the City took adverse action against
Moorman. 	On August 3, the City threatened Moorman with discipline for violating the 2002
Agreement. On August 15, the City demanded that Moorman reimburse the City for 19. 9 days
of
allegedly unauthorized release time. Therefore, the City's adverse actions against Moorman
occurred soon after she had engaged in the protected activity
of
campaigning against Scotto.
This closeness in time between Moorman' s protected activity and the City's adverse actions
supports an inference
of
retaliation.
Cursory Investigation
Having satisfied the timing factor, AFSCME must also show at least one additional
factor to establish retaliation. An employer's cursory investigation
of
an employee's alleged
misconduct is one such factor. 	(Coast Community College District (2003) PERB Decision
No. 1560.) The ALJ found that the City conducted a cursory investigation ofMoorman's use
of
presidential release time. The Board agrees and adopts the following analysis from the
proposed decision:
Besides the timing of the City's actions, perhaps the most striking
feature of this case is the City's limited investigation of
Moorrnan's taking of release time. 	Giordano, who apparently did
17

18
the only investigation, did not speak to Moorman or to the City
Librarian but simply reviewed Moorman's timesheets, on which
Moorman had openly used an employee relations code full-time.
In her letter
of
August 3, 2006, in which she rejected Moorman's
first grievance, Giordano represented that 'the Library became
aware' that Moorman was conducting Union business. This
representation was untrue, as any investigation would have
shown. 	The City Librarian had always known what Moorman
was doing and had announced it in an e-mail message to library
staff. Moorman had offered to show that message to the City
Manager, but he said he did not need to see it.
In the same August 3 letter, Giordano accused Moorman
of
an
'infraction'
of
the 2002 Agreement, under which three infractions
within one fiscal year would subject Moorman to discipline.
Giordano never withdrew that accusation. 	On the contrary, in her
letter
of
August 15, 2006, Giordano implicitly repeated the
accusation by telling Moorman what to do to 'preclude further
infractions.' Even as late as her letter
of
September 25, 2006,
Giordano brought to Moorman' s attention the infraction language
of
the 2002 Agreement. These explicit and implicit accusations
of
misconduct and threats
of
discipline were not supported by an
investigation
of
the underlying facts.
In her August
15
letter, Giordano escalated the attack on
Moorman, again without investigating the underlying facts, by
asking Moorman to reimburse the City for
19
.9 days
of
release
time already taken. Even after seeing the e-mail messages
of
January
13
and February 8, neither Giordano nor the City
Manager acknowledged that Moorman's supervisors had
authorized her to work full-time for the Union, a fact that made
the City's request for reimbursement unsupportable. In his letter
of
August 23, 2006, the City Manager merely agreed to 'defer'
the City's request 'pending resolution ofrelease time issues.' 	In
her letter
of
September 19, 2006, Giordano merely agreed to
'cease efforts' to obtain reimbursement 'in the interest
of
attempting to achieve an amicable resolution
of
these and other
associated issues.'
In short, during the three months they were attacking Moorman,
Giordano and the City Manager showed no desire to ascertain or
acknowledge the underlying facts. 	Their investigation
of
those
facts was cursory at best.
18

The City excepts to the ALJ's finding that it conducted a cursory investigation.
However, the exception does not address the clear evidence
of
the City's failure to adequately
investigate Moorman's release time use. Instead, the City argues that Moorman had an
obligation to inform the City that she was on full time presidential release time. However,
prior to receiving the June 28, 2006 memorandum ordering her to report for work on Mondays
and Fridays, Moorman had no idea that the city manager's office was unaware that she was
conducting union business full time. After she received the memorandum, she attemptedto
show the Deleget and Weiner e-mails to Jackson, but he said he did not need to see them.
12
At
the July 6 meeting, Scotto read the e-mails but apparently did nothing in response to them.
Thus, Moorman did attempt to explain to City management why she was taking five release
time days per week, but her efforts proved fruitless. 	In fact, the city manager's and mayor's
inaction under these circumstances further support an inference
of
retaliation.
Union Animus
Expression
of
anti-union sentiments by the employer or its agents also supports an
inference
of
retaliation. (Jurupa Community Services District (2007) PERB Decision
No. 1920-M.)
19
Here, Scotto's anti-union statements to Moorman during the July 6, 2006 meeting
support such an inference. During that meeting, Scotto said he had been briefed on the
presidential release time issue. Moorman told him that she felt the reduction
of
her release
time as punishment for backing the wrong candidate was harsh. While Moorman could not
remember Scotto's response to this statement, she did recall:
12
UUnlike the ALJ, we find no legal significance in Jackson's failure to deny a retaliatory
motive for the reduction of Moorman' s release time, either during his telephone conversation
with Moorman or at the PERB hearing. 	In light of this finding, we need not address the City's
19

20
He said he felt like a dad who was, had a bad child, that he was
very disappointed in me. And disappointed at what I did and that
he was going to hold me personally responsible. He said that he
would have a hard time working with me. I asked him what he
meant by what I did, he said you know when you stood up at the
microphone and asked me those questions.
On their face, these statements may appear to be addressed to Moorman personally.
However, when viewed in the context
of
Scotto's statements to AFSCME officials at the
March 2005 meeting, the anti-union character
of
his statements to Moorman becomes apparent.
At the 2005 meeting, Scotto told Lee and Ferguson he was angry with them because at city
council meetings they had spoken in opposition to Measure T, which Scotto strongly
supported. 	Scotto told them he could still work with Moorman because she "hadn't done
anything yet." Scotto then warned AFSCME not to get involved in the upcoming mayoral
election and said that when he became mayor AFSCME should not come to him for anything.
These statements show that Scotto harbored animus toward AFSCME because
of
its opposition
to Measure T.
Scotto expressed similar displeasure with AFSCME to Moorman at the July 6, 2006
meeting. Scotto told her during a discussion
of
the recent mayoral campaign that he "was very
disappointed in [her and] was going to hold her personally responsible" for her questions on
behalf
of
AFSCME at the August 9, 2005 city council meeting. This statement clearly refers to
actions Moorman took in her capacity as AFSCME president. Additionally, Moorman testified
that Scotto told her he could only work with AFSCME if she was not the president. When
viewed in the context
of
Scotto's statements at the March 2005 meeting, his statements to
Moorman show that, while Scotto may have been unhappy with Moorman personally, he also
20
exception that the ALJ improperly drew an adverse inference against the City because it did
not call Jackson to testify at the hearing.

harbored animus toward AFSCME because of its active campaign against him in the mayoral
election.
In its exceptions, the City asserts the ALJ erroneously credited Moorman's testimony
regarding the July 6, 2006 meeting over Scotto's testimony that he did not make any of the
statements Moorman attributed to him. The Board affords great deference to an ALJ's
credibility determinations because the ALJ is in a better position to make those findings by
virtue of observing the witness' testimony. 	(State of California (Departments of Personnel
Administration and Transportation) (1997) PERB Decision No. 1227-S.) The Board defers to
the ALJ's credibility determinations unless there is evidence in the record to support
overturning them. (Whisman Elementary School District (1991) PERB Decision No. 868.)
We find no evidence in the record to support overturning the ALJ' s determination that
Moorman's testimony was more credible than Scotto's. Therefore, we defer to the ALJ's
findings of fact based on Moorman's testimony about the July 6 meeting.
The City also excepts to the ALJ's finding that the City, through Scotto's anti-union
statements, interfered with Moorman' s rights under MMBA. 13 The basis for the City's
exception is that as mayor, Scotto has only one vote on a seven-member city council and
therefore his individual actions cannot bind the City. While this may be true in regards to the
city council acting as a legislative body, it does not prevent Scotto's statements from being
imputed to the City as employer.
PERB will impute a subordinate's union animus to the employer only when the
subordinate' s animus actually played some part in the ultimate decision. 	(State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; Konocti Unified
13 While the ALJ addressed Scotto' s statements in terms of interference, they are also
relevant to show union animus supporting an inference of retaliation.
21	21

22
School District (1982) PERB Decision No. 217.) Here, Scotto was not a subordinate
of
the
decision maker, Jackson, but was instead a member
of
the employer's governing body; thus,
his ability to influence Jackson's decision was much stronger than
if
he were Jackson's
subordinate. While there is no direct evidence
of
Scotto's involvement in the adverse actions
taken against Moorman, the record supports a strong inference that Jackson acted at Scotto' s
direction or at least that Scotto tacitly approved
of
the city manager's actions. Therefore, we
find that the ALJ properly imputed Scotto's union animus, as demonstrated by his statements
to Moorman at the July 6 meeting, to the City.
"But For" Test
22
Once the charging party establishes a prima facie case
of
retaliation, as AFSCME has
done here, the employer then bears the burden
of
proving that it would have taken the adverse
action even
if
the employee had not engaged in protected activity. (Novato Unified School
District (1982) PERB Decision No.
21
O;
Martori Brothers Distributors
v.
Agricultural Labor
Relations Bd. (1981) 29 Cal.3d 721, 729-730 [175 Cal.Rptr. 626] (Martori Brothers); Wright
Line (1980)
251
NLRB 1083 [105 LRRM 1169].) Thus, where, as here, it appears that the
employer's adverse action was motivated by both valid and invalid reasons, "the question
becomes whether the [adverse action] would not have occurred 'but for' the protected activity."
(Martori Brothers.) The "but for" test is "an affirmative defense which the employer must
establish by a preponderance
of
the evidence." (McPherson v. Public Employment Relations Bd.
(1987) 189 Cal.App.3d 293, 304 [234 Cal.Rptr. 428].)
In its exceptions, the City asserts that its right to enforce the 2002 Agreement justified its
actions against Moorman. We do not dispute the City had such a right. However, viewing the
record as a whole, we cannot conclude the City would have taken the actions it did had Moorman

23
not been involved in AFSCME's campaign against Scotto. Therefore, the City has not
established a defense to the retaliation charge.
Interference
23
The test for whether a respondent has interfered with the rights of employees under the
MMBA does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. The courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation of section 3506 is: 	(1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer's conduct was
not justified by legitimate business reasons. [Public Employees
Assn. v. Board of Supervisors (1985) 167 Cal.App.3d 797, 807
[213 Cal.Rptr. 491] (Tulare County).
As established above, Moorman engaged in protected activity by participating in
AFSCME's election campaign against Scotto. The City's conduct toward Moorman from June
through August 2006 tended to discourage her from continuing to serve as AFSCME president
or, at least, from aggressively advocating on behalf of AFSCME's members.
Nonetheless, the City argues that enforcement of the 2002 Agreement provided a
legitimate business reason for its actions. As noted, the City certainly had the right to enforce
the agreement but it could not do so in a way that interfered with protected rights under
MMBA. (See McFarland Unified School Dist. v. Public Employment Relations Bd. (1991) 228
Cal.App.3d 166 [279 Cal.Rptr. 26] [while Education Code gave school district complete
authority not to reelect probationary teacher, it could not exercise its authority in a manner that	authority not to reelect probationary teacher, it could not exercise its authority in a manner that
violated EERA].) Thus, while the City legitimately could order Moorman to take only three
days of release time per week, it could not threaten her with discipline and demand
reimbursement ofrelease time based on a cursory investigation of the facts. 	(See San Joaquin

[employer failed to show legitimate business reason because threats
of
discipline were based
solely on "vague complaints by two individuals" which employer did not investigate].)
Moreover, Scotto's statements that he would hold Moorman "personally responsible" for her
questions at the August
9,
2005 city council meeting and that he could not work with
AFSCME as long as she was president were in no way related to enforcing the 2002
Agreement. Rather, they appear to be aimed at coercing Moorman into stepping down as
AFSCME president. Accordingly, the City failed to establish a legitimate business reason to
justify its conduct toward Moorman that tended to interfere with her MMBA section 3502 right
to participate in union activities.
24
Refusal to Bargain
In determining whether a party has violated MMBA section 3505 and PERB Regulation
32603(c), 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.) An absolute refusal to meet and
confer on a subject within the scope
of
representation is a per se violation. (Sierra Joint
Community College District (1981) PERB Decision No. 179 (Sierra).) Release time proposals
fall within the scope
of
representation because they directly concern hours
of
employment.
(Trustees
of
the California State University (2007) PERB Decision No. 1886-H; San Mateo
Community College District (1993) PERB Decision No. 1030 (San Mateo).) Therefore, a
refusal to bargain over a release time proposal is a per se violation of the duty to meet and
confer in good faith. 	(San Mateo; Sierra.)
On August 21, 2006, AFSCME, through its counsel, demanded to meet and confer
"immediately on the subject of release time for the Union President." The City accepted
AFSCME's demand two days later. At the first meet and confer session on September 7, the
24

City presented a written proposal to rescind the 2002 Agreement and amend the MOU to
reduce presidential release time to one day per week. AFSCME took the position that the 2002
Agreement was not subject to renegotiation and therefore it would only bargain over
Moorman's use of presidential release time on Mondays and Fridays. The City reiterated its
demand to bargain over the proposal in writing the next day. 	AFSCME responded on
September 12 by restating its earlier position in writing. On September 25, the City again
demanded to bargain over all issues regarding presidential release time. Four days later, the
City filed its unfair practice charge.
On October 3, AFSCME and the City met again to discuss presidential release time.
The City presented a written proposal that the parties agree to dismiss their unfair practice
charges and meet and confer in good faith over "all issues regarding Union President release
time." In an October 16 letter, AFSCME said that it would not meet and confer over the 2002
Agreement. On October 20, the City responded that it "will not be a participant to bad faith	Agreement. On October 20, the City responded that it "will not be a participant to bad faith
negotiations as proposed by AFSCME with the limiting of discussions at the bargaining table
to only those of [AFSCME]."
As AFSCME correctly notes, it did not absolutely refuse to discuss the subject of
presidential release time. However, by its own admission, AFSCME was only willing to
discuss its release time issue and would not entertain the City's proposal because it believed
the 2002 Agreement was not subject to renegotiation. 14 In Sierra, the employer refused to
14AFSCME attempts to characterize its refusal as "hard bargaining" by arguing it
merely took the position that it would not agree to anything less then three days per week of
presidential release time. There is a difference between unlawful bad faith bargaining and
lawful hard bargaining. (See Tulare County, at p. 805 [adamant insistence on a bargaining
position is not necessarily refusal to bargain in good faith if party "maintain[ s] a sincere
interest in reaching agreement"].) However, hard bargaining may occur only once the parties
have entered into negotiations. Here, negotiations never occurred because AFSCME refused to
bargain and therefore AFSCME could not have engaged in hard bargaining.
25
14
25

bargain over the union's release time proposal, claiming the subject was not negotiable. The
Board held that the employer's good faith bargaining on other subjects did not prevent its
refusal to bargain over the release time proposal from constituting a per se violation
of
the duty
to bargain. 	Similarly, that AFSCME was willing to bargain over its release time issue does not
preclude a finding that it committed a per se violation by refusing to bargain over the
City's
proposal. Therefore, we conclude that AFSCME's refusal to consider the City's proposal to
reduce presidential release time constituted a per se violation
of
AFSCME's duty to meet and
confer in good faith.
26
Waiver
AFSCME argues in its exceptions that it had no duty to bargain over the City's
proposal because the City waived its right to bargain over presidential release time by entering
into the 2002 Agreement. Any waiver
of
a right to bargain must be "clear and unmistakable."
(Building Material & Construction Teamsters' Union v. Farrell (1986)
41
Cal.3d 651
[224 Cal.Rptr. 688]; Amador Valley Joint Unified School District (1978) PERB Decision 74.)
Waiver is most readily apparent where the specific subject is covered by the express terms
of
an existing collective bargaining agreement. 	(See California State Employees' Assn. v. Public
Employment Relations Bd. (1996)
51
Cal.App.4th 923, 938-940 [59 Cal.Rptr.2d 488]; Solano
Community College District (1982) PERB Decision No. 219.) "In the absence
of
some form
of
waiver, the duty to bargain continues during the term
of
the collective agreement."
(Placentia Unified School District (1986) PERB Decision No. 595.)
The 2002 Agreement was the product
of
negotiations between the parties and
constitutes an MOU under Torrance Municipal Code section 14.8.2(0). However, unlike a
typical MOU, the 2002 Agreement has no fixed term. Given that an explicit contract term
waives the duty to bargain over that subject during the term of the agreement, this presents two
26

alternatives: 	(1) the 2002 Agreement is never subject to renegotiation; or (2) it is subject to
renegotiation at any time. Under the first alternative, either party could refuse to bargain over
the other's request to modify the 2002 Agreement in perpetuity. 	Such a calcification
of
working conditions is antithetical to the collective bargaining framework established by
MMBA and, indeed, AFSCME does not argue that the 2002 Agreement can never be
renegotiated.
27
Nonetheless, AFSCME rejects the alternative that the 2002 Agreement may be
renegotiated at any time. 	Instead AFSCME argues that the 2002 Agreement may only be
renegotiated during negotiations for a new MOU. Thus, according to AFSCME, it had no duty
to bargain over the 2002 Agreement during the term
of
the parties' 2005-2007 MOU.
However, nothing in the MOU incorporated or referenced the terms
of
the 2002 Agreement
and therefore it was not a part
of
the MOU. (See Mt. San Antonio Community College District
(1988) PERB Decision No. 691 [finding that MOU incorporated by reference into collective
bargaining agreement did not survive agreement's expiration].) Accordingly, the 2002
Agreement was subject to renegotiation at any time and AFSCME violated its duty to meet and
confer in good faith by refusing to bargain over it upon the City's demand.
Conditional Bargaining
AFSCME also excepts to the ALJ' s failure to address its contention that it had no duty
to bargain because the City engaged in unlawful conditional bargaining. Because this
argument essentially alleges that the City committed an unfair practice, it is in the nature
of
an
affirmative defense. 	(See NLRB v. Tragniew, Inc. (9th Cir. 1972) 470 F.2d 669, 673
[
81
LRRM 23 3 6] [an unfair labor practice may be raised as a defense to a refusal to bargain
charge].) PERB Regulation 32644(b)(6) provides that the answer to a complaint must contain
a "statement of any affirmative defense." An affirmative defense not raised in the answer will
27

28
not be considered by the ALJ. 	(Sonoma County Office
of
Education (1997) PERB Decision
No. 1225.) AFSCME did not raise the City's alleged conditional bargaining as a defense in its
answer nor did it move at hearing to amend its answer to include the defense. 	Accordingly, the
ALJ properly declined to address the conditional bargaining defense.
However, even
if
the defense was properly raised, we find it has no merit. AFSCME
alleges the City refused to bargain unless AFSCME agreed to withdraw its unfair practice
charge. 	The record shows that on October 20, 2006, the City refused to negotiate further
unless all presidential release time issues were on the table during bargaining. There is no
evidence the City conditioned further bargaining on AFSCME agreeing to its proposal that the
parties withdraw their unfair practice charges. More importantly, the City's alleged
conditional bargaining occurred after AFSCME had twice refused to bargain over the City's
release time proposal. AFSCME alleges that the City imposed conditions on further
bargaining at the October 3 meet and confer session. Yet AFSCME had already refused to
bargain on September 7 and 12. Therefore, because it had not yet occurred, the City's later
conduct could not provide justification for AFSCME's earlier refusals to bargain.
REMEDY
LA-CE-316-M
28
The proposed order requires the City to "undo its retaliatory actions" by restoring
Moorman's presidential release time to five days per week until she leaves office or the parties
agree otherwise. This remedy was based on the ALJ's finding that the City retaliated against
Moorman by reducing her release time. As discussed above, we disagree with this finding and
instead find that only the City's investigation and demand for reimbursement of release time
were retaliatory actions. Accordingly, the proper remedy is for the City to cease and desist
from any efforts to discipline Moorman for use of presidential release time in excess of three

29
days per week between January and June 2006 and/or any efforts to obtain reimbursement
from Moorman for presidential release time taken during that period. We also agree with the
ALJ that a notice posting
is
appropriate in this case.
LA-CO-43-M
The proposed order requires AFSCME to meet and confer in good faith upon request
over the issue
of
presidential release time. The City excepts to the order on the ground that the
remedy does not make the City whole because "it does not provide restitution to the City for
the days
of
release time [AFSCME] acquired as a result
of
their unlawful action" in refusing to
bargain. 	This argument rests on the assumption that had the parties negotiated over the City's
presidential release time proposal, AFSCME would have agreed to something less than the
three days per week established in the 2002 Agreement. However, there is no way for PERB
to ascertain what agreement the parties would have reached or when they would have reached
agreement. 	Thus, because any "loss
of
release time" caused by AFSCME's conduct is purely
speculative, the City's requested remedy is unwarranted. 	(State
of
California (Department
of
Transportation) (1981) PERB Decision No. 159b-S.) For this reason, we adopt the ALJ's
proposed order as the order
of
the Board itself.	proposed order as the order of the Board itself.
ORDER
Case No. LA-CE-316-M
29
Upon the foregoing findings
of
fact and conclusions
of
law and the entire record in this
matter, it is found that the City
of
Torrance (City) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503 and 3506, and Public Employment Relations Board
(PERB) Regulation 32603(a) and (b) (Cal. Code of Regs., tit. 8, sec. 31001 et seq.), by
threatening Jeannie Moorman (Moorman) with disciplinary action and demanding
reimbursement for 19.9 days of allegedly unauthorized release time in retaliation for

3.
30
Moorman's engagement in protected activity. It is also found that this conduct violated
MMBA sections 3503 and 3506, and PERB Regulation 32603(a) and (b), by interfering with
Moorman's and Torrance Municipal Employees, AFSCME Local 1117's (AFSCME) exercise
of
MMBA-guaranteed rights.
A.
1 .
2.
Pursuant to Government Code sections 3509(a) and 3541.5(c), it is hereby ORDERED
that the City, its governing council, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Threatening disciplinary action, demanding reimbursement
of
release
time, or otherwise retaliating against employees because
of
their exercise
of
protected rights.
2. 	Interfering with employees' right to participate in the activities
of
an
employee organization
of
their own choosing.
3. 	Denying recognized employee organizations the right to represent their
members.
B.	B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1
2.
1.	
Cease and desist from any efforts to discipline Moorman for use
of
presidential release time in excess
of
three days per week between January and June 2006
and/or any efforts to obtain reimbursement from Moorman for presidential release time taken
during that period.
2. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily posted,
copies
of
the Notice attached hereto. The Notice must be signed by an authorized agent
of
the
City, indicating the City will comply with the terms of this Order. Such posting shall be
maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken
30

to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
3. 	Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
PERB, or the General Counsel's designee. The City shall
provide reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on AFSCME.
Case No. LA-CO-43-M
Upon the foregoing findings
of
fact and conclusions
of
law and the entire record in this
matter, it is found that Torrance Municipal Employees, AFSCME Local 1117 (AFSCME)
violated the Meyers-Milias-Brown Act (MMBA), Government Code section 3505, and Public
Employment Relations Board (PERB) Regulation 32604(c) (Cal. Code
of
Regs., tit. 8, sec.
31001 et seq.), by refusing to meet and confer over the City
of
Torrance's (City) proposal to
reduce presidential release time to one day per week.
Pursuant to Government Code sections 3509(a) and 3541.5(c), it is hereby ORDERED
that AFSCME, its governing body, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Refusing to meet and confer with the City upon proper request over
matters within the scope
of
representation.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:	EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Meet and confer with the City upon proper request over the subject
of
presidential release time for the AFSCME president.
2. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where AFSCME customarily posts notices to its
31
3 .
A.
1 .
B.
1.
2. 	W
31

members, copies
of
the Notice attached hereto. The Notice must be signed by an authorized
agent
of
AFSCME, indicating AFSCME will comply with the terms
of
this Order. 	Such
posting shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered with
any other material.
3.	
Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
PERB, or the General Counsel's designee. AFSCME shall
provide reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on the City.
32
3.
Chair Neuwald and Member McKeag joined in this Decision.
32

APPENDIX	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-316-M, Torrance Municipal
Employees, AFSCME Local 1117 v. City of Torrance, in which all parties had the right to
participate, it has been found that the City of Torrance violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503 and 3506, and Public Employment Relations Board
Regulation 32603(a) and (b), by retaliating against Jeannie Moorman (Moorman) for her
exercise of protected rights and interfering with Moorman and AFSCME Local 1117' s exercise
of protected rights.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1 .
2.
3. 	D
B.
A. 	CEASE AND DESIST FROM:
1. 	Threatening disciplinary action, demanding reimbursement of release
time, or otherwise retaliating against employees because of their exercise of protected rights.
2. 	Interfering with employees' right to participate in the activities of an
employee organization of their own choosing.
3. 	Denying recognized employee organizations the right to represent their
members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:	E
1 .	1. 	Cease and desist from any efforts to discipline Moorman for use of
presidential release time in excess of three days per week between January and June 2006
and/or any efforts to obtain reimbursement from Moorman for presidential release time taken
during that period.
Dated: 	CITY OF TORRANCE
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

APPENDIX
By:
--------------
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
A.
1 .
B.
1 .
After a hearing in Unfair Practice Case No. LA-CO-43-M, City
of
Torrance v. Torrance
Municipal Employees, AFSCME Local 1117, in which all parties had the right to participate, it
has been found that the Torrance Municipal Employees, AFSCME Local 1117 (AFSCME),
violated the Meyers-Milias-Brown Act (MMBA), Government Code section 3505 and Public
Employment Relations Board Regulation 32604(c), by refusing to meet and confer over the
City
of
Torrance's (City) proposal to reduce presidential release time to one day per week.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE	EASE AND DESIST FROM:	AND DESIST FROM:
1.	
Refusing to meet and confer with the City upon proper request over
matters within the scope
of
representation.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Meet and confer with the City upon proper request over the subject
of
presidential release time for the AFSCME president.
Dated: 	TORRANCE MUNICIPAL EMPLOYEES,
AFSCME LOCAL 1117
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.