City of Riverside (PERB 2027M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1997,
Charging Party, 	Case No. LA-CE-347-M
V . 	PERB Decision No. 2027-M
CITY OF RIVERSIDE, 	May 19, 2009
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by James Rutkowski, Attorney, for Service
Employees International Union, Local 1997; Roth Carney Knudsen by Richard D. Roth,
Attorney, for City of Riverside.
Before Neuwald, Wesley and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the City of Riverside (City) and Service
Employees International Union, Local 1997 (SEIU), to the proposed decision of an
administrative law judge (ALJ). The ALJ concluded that the City violated the Meyers-Milias-
Brown Act (MMBA)' by changing the criteria for promoting mini-bus drivers without
providing SEIU with notice and an opportunity to request to meet and confer over the change.
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
The Board has reviewed the proposed decision and the record in light of the exceptions,
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1997,
Charging Party,
V.
CITY OF RIVERSIDE,
Respondent.
Case No. LA-CE-347-M
PERB Decision No. 2027-M
May 19, 2009
Appearances: 	Weinberg, Roger & Rosenfeld by James Rutkowski, Attorney, for Service
Employees International Union, Local 1997; Roth Carney Knudsen by Richard D. Roth,
Attorney, for City of Riverside.
Before Neuwald, Wesley and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the City of Riverside (City) and Service
Employees International Union, Local 1997 (SEIU), to the proposed decision of an
administrative law judge (ALJ). The ALJ concluded that the City violated the Meyers-Milias-
Brown Act (MMBA) 1 by changing the criteria for promoting mini-bus drivers without
providing SEIU with notice and an opportunity to request to meet and confer over the change.
briefs and relevant law. Based on this review, we affirm the violation found by the ALJ for the
reasons discussed below.
The Board has reviewed the proposed decision and the record in light of the exceptions,
briefs and relevant law. Based on this review, we affirm the violation found by the ALJ for the
reasons discussed below.
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

BACKGROUND
The Special Transportation Division (Division) of the City's Parks, Recreation and
Community Services Department provides mini-bus transportation throughout the City for
senior citizens and disabled individuals. At the time of the hearing in this matter, the Division
employed 27 mini-bus drivers. Eleven of those drivers were full-time, 11 were 3/4 time (up to
39 hours per week), one was half time (up to 29 hours per week), and four were employed on a
temporary, part-time basis, working up to 19 hours per week.
Mini-bus drivers, except those employed on a temporary, part-time basis, are members
of a City bargaining unit represented by SEIU. In 1999, SEIU filed a grievance over the
method the Division used to select mini-bus drivers to fill positions with a higher time base,
e.g. to move from three-fourths time to full-time. To resolve the grievance, the City and SEIU
entered into a written agreement (1999 Agreement) that stated in full:
Minibus Driver Promotion by Seniority Proposal
I. 	Seniority is defined as an employee's first date of service
working within either of the following positions with the
Special Transportation section of the Park and Recreation
Department of the City of Riverside: Minibus Driver full-
time, Minibus Driver 3/4 time, Minibus Driver 1/2 time,
Minibus Driver (non-benefited). If an employee has held
more than one of the positions listed above, the earliest
date shall be used for his or her seniority.
II. 	Effective immediately, vacancies for the following
positions within the Special Transportation section of the
Parks and Recreation Department of the City of Riverside
will be filled as follows:
A. 	Minibus Driver 3/4 time shall be promoted to
Minibus Driver full-time in order of seniority with
the following restrictions:
1 . 	With no discipline imposed within the
preceding 12 months.
2
BACKGROUND
The Special Transportation Division (Division) of the City's Parks, Recreation and
Community Services Department provides mini-bus transportation throughout the City for
senior citizens and disabled individuals. At the time of the hearing in this matter, the Division
employed 27 mini-bus drivers. Eleven of those drivers were full-time, 11 were 3/4 time (up to
39 hours per week), one was half time (up to 29 hours per week), and four were employed on a
temporary, part-time basis, working up to 19 hours per week.
Mini-bus drivers, except those employed on a temporary, part-time basis, are members
of a City bargaining unit represented by SEIU. In 1999, SEIU filed a grievance over the
method the Division used to select mini-bus drivers to fill positions with a higher time base,
e.g. to move from three-fourths time to full-time. To resolve the grievance, the City and SEIU
entered into a written agreement (1999 Agreement) that stated in full:
Minibus Driver Promotion by Seniority Proposal
I. 	Seniority is defined as an employee's first date of service
working within either of the following positions with the
Special Transportation section of the Park and Recreation
Department of the City of Riverside: Minibus Driver full-
time, Minibus Driver 3/4 time, Minibus Driver 1/2 time,
Minibus Driver (non-benefited). If an employee has held
more than one of the positions listed above, the earliest
date shall be used for his or her seniority.
II. 	Effective immediately, vacancies for the following
positions within the Special Transportation section of the
Parks and Recreation Department of the City of Riverside
will be filled as follows:
A. 	Minibus Driver 3/4 time shall be promoted to
Minibus Driver full-time in order of seniority with
the following restrictions:
1. 	With no discipline imposed within the
preceding 12 months.
2

2. 	Whose overall ratings have been
satisfactory or above for the preceding 12
months.
B. 	Minibus Driver 1/2 time promotion to Minibus
Driver 3/4 time, or Minibus Driver full-time are
subject to conditions A-1 and A-2 above.
C. 	Minibus Driver (non-benefited) promotion to
Minibus Driver 1/2, 3/4 or full-time shall be
subject to conditions A-1 and A-2 above.
III. 	Employees promoted to Minibus Driver full-time, 3/4
time or 1/2 time shall not be subject to a promotional
probationary period.
IV. 	Employees who decline a promotion, or are denied a
promotion based on A-1 or A-2 above, shall be notified in
writing. This notification will be signed by the employee.
The 1999 Agreement was signed by an SEIU representative, the City's human
resources director and the director of the Parks and Recreation Department. Neither the 1999
Agreement itself nor its terms were ever incorporated into any memorandum of understanding
(MOU) between the City and SEIU. From July 1999 through the end of 2005, the Division
promoted mini-bus drivers in accordance with the 1999 Agreement.
In early 2006, the City began preparing to negotiate successor MOUs with the various
employee organizations representing City employees. As part of these preparations, Assistant
City Manager Thomas Desantis (Desantis), the City's lead negotiator, briefed the City Council
on the existence of side letters between City management and employee organizations that
conflicted with terms of the prior MOUs formally approved by the council. In response, the
City Council instructed Desantis to make the new successor MOUs "all inclusive."
Accordingly, the City adopted a negotiating position during the 2006 negotiations that all side
letters would be superseded by the successor MOU unless the terms of the letters were made a
part of the MOU.
3
2. 	Whose overall ratings have been
satisfactory or above for the preceding 12
months.
B. 	Minibus Driver 1/2 time promotion to Minibus
Driver 3/4 time, or Minibus Driver full-time are
subject to conditions A-1 and A-2 above.
C. 	Minibus Driver (non-benefited) promotion to
Minibus Driver 1/2, 3/4 or full-time shall be
subject to conditions A-1 and A-2 above.
III. 	Employees promoted to Minibus Driver full-time, 3/4
time or 1/2 time shall not be subject to a promotional
probationary period.
IV. 	Employees who decline a promotion, or are denied a
promotion based on A-1 or A-2 above, shall be notified in
writing. This notification will be signed by the employee.
The 1999 Agreement was signed by an SEIU representative, the City's human
resources director and the director of the Parks and Recreation Department. Neither the 1999
Agreement itself nor its terms were ever incorporated into any memorandum of understanding
(MOU) between the City and SEIU. From July 1999 through the end of 2005, the Division
promoted mini-bus drivers in accordance with the 1999 Agreement.
In early 2006, the City began preparing to negotiate successor MOUs with the various
employee organizations representing City employees. As part of these preparations, Assistant
City Manager Thomas DeSantis (DeSantis), the City's lead negotiator, briefed the City Council
on the existence of side letters between City management and employee organizations that
conflicted with terms of the prior MO Us formally approved by the council. In response, the
City Council instructed DeSantis to make the new successor MOUs "all inclusive."
Accordingly, the City adopted a negotiating position during the 2006 negotiations that all side
letters would be superseded by the successor MOU unless the terms of the letters were made a
part of the MOU.
3

In the spring of 2006, the City and SEIU began negotiations for a successor MOU
covering the period July 1, 2006, through June 30, 2010. At the first bargaining session, the
City presented SEIU with a proposal containing language to the effect that the MOU would
supersede all side letters. SEIU chief negotiator Deborah Cortez (Cortez) testified that at some
point during negotiations, she asked Dan Cassidy (Cassidy), an attorney representing the City,
to clarify which side letters the City thought the MOU should supersede. In response, someone
on the City's bargaining team produced a copy of the 1999 Agreement. Cortez told Cassidy
that the 1999 Agreement was a "grievance resolution," not a side letter. The City did not
respond to Cortez's statement. Cortez testified that Desantis was part of "the cast of
characters that were [at negotiation sessions] usually all the time," but could not specifically
recall him being present during her discussion of the 1999 Agreement with Cassidy. Desantis
testified that he attended every bargaining session but was unaware of a conversation about the
1999 Agreement. He also testified that the "minibus driver promotion process . . . was the
gorilla in the room" during negotiations.
Also during these negotiations, SEIU proposed to add language to the MOU provision
governing promotions that would define the movement of an employee from a lower time base
position to a higher time base position within the same classification as a "status change"
rather than a promotion and that such "status changes" would be governed strictly by seniority.
This proposed language would have the effect of making the promotion by seniority system set
forth in the 1999 Agreement applicable to all members of the bargaining unit.
On July 25, 2006, the City presented SEIU with a comprehensive proposal. That
evening, shortly before the scheduled start of a City Council meeting, Cortez went to DeSantis'
office to discuss the proposal. Desantis testified that members of the City's bargaining team
"were in and out of the room," but that only he and Cortez discussed the proposal. Cortez and
4
In the spring of 2006, the City and SEIU began negotiations for a successor MOU
covering the period July 1, 2006, through June 30, 2010. At the first bargaining session, the
City presented SEIU with a proposal containing language to the effect that the MOU would
supersede all side letters. SEIU chief negotiator Deborah Cortez (Cortez) testified that at some
point during negotiations, she asked Dan Cassidy (Cassidy), an attorney representing the City,
to clarify which side letters the City thought the MOU should supersede. 	In response, someone
on the City's bargaining team produced a copy of the 1999 Agreement. Cortez told Cassidy
that the 1999 Agreement was a "grievance resolution," not a side letter. The City did not
respond to Cortez's statement. Cortez testified that DeSantis was part of "the cast of
characters that were [at negotiation sessions] usually all the time," but could not specifically
recall him being present during her discussion of the 1999 Agreement with Cassidy. DeSantis
testified that he attended every bargaining session but was unaware of a conversation about the
1999 Agreement. He also testified that the "minibus driver promotion process ... was the
gorilla in the room" during negotiations.
Also during these negotiations, SEIU proposed to add language to the MOU provision
governing promotions that would define the movement of an employee from a lower time base
position to a higher time base position within the same classification as a "status change"
rather than a promotion and that such "status changes" would be governed strictly by seniority.
This proposed language would have the effect of making the promotion by seniority system set
forth in the 1999 Agreement applicable to all members of the bargaining unit.
On July 25, 2006, the City presented SEIU with a comprehensive proposal. That
evening, shortly before the scheduled start of a City Council meeting, Cortez went to DeSantis'
office to discuss the proposal. DeSantis testified that members of the City's bargaining team
"were in and out of the room," but that only he and Cortez discussed the proposal. Cortez and
4

Desantis indicated to each other that they wanted to resolve negotiations before the council
meeting. They then went through the proposal item by item, with both initialing each item as
they reached agreement.
When they reached item 10 regarding promotions, Cortez agreed to withdraw SEIU's
proposed "status change" language. Cortez then handwrote a memorandum that stated in full:
"We have agreed to move off status change language to move forward. We will proceed with
this matter through the grievance process." Desantis wrote at the bottom of the memorandum:
"Acknowledge Union's position on this matter."
When Cortez and Desantis reached item 15 regarding side letters, Cortez proposed to
delete the language "MOU will supersede all Side Letters." Desantis responded that the City
would not agree to remove the language. Cortez then proposed to keep the supersession
language with the addition of language excluding grievance resolutions from being superseded.
Desantis agreed to the proposal. Cortez then handwrote above the supersession language:
"Both parties recognize that this excludes grievance resolutions documents." Cortez and
Desantis initialed the added language.
Cortez testified she and Desantis did not discuss what constituted "grievance
resolutions documents," nor did they discuss the 1999 Agreement. Cortez testified that her
intent in adding the "grievance resolutions" language was to preserve the 1999 Agreement.
Desantis testified that he believed the "grievance resolutions" language was intended to
preserve SEIU's right to grieve the status change issue in the future and the City never would
have agreed to the language if it was intended to preserve the 1999 Agreement. He also
testified that he was unaware of the existence of the 1999 Agreement until just a few weeks
before the PERB hearing, though he admitted he knew in 2006 that the Division had a practice
of promoting mini-bus drivers according to seniority.
5
DeSantis indicated to each other that they wanted to resolve negotiations before the council
meeting. They then went through the proposal item by item, with both initialing each item as
they reached agreement.
When they reached item 10 regarding promotions, Cortez agreed to withdraw
SEID'
s
proposed "status change" language. Cortez then handwrote a memorandum that stated in full:
"We
have agreed to move
off
status change language to move forward. 	We will proceed with
this matter through the grievance process." DeSantis wrote at the bottom
of
the memorandum:
"Acknowledge
Union's
position on this matter."
When Cortez and DeSantis reached item
15
regarding side letters, Cortez proposed to
delete the language
"MOU
will supersede all Side Letters." DeSantis responded that the City
would not agree to remove the language. 	Cortez then proposed to keep the supersession
language with the addition
of
language excluding grievance resolutions from being superseded.
DeSantis agreed to the proposal. Cortez then handwrote above the supersession language:
"Both parties recognize that this excludes grievance resolutions documents." Cortez and
DeSantis initialed the added language.
Cortez testified she and DeSantis did not discuss what constituted "grievance
resolutions documents," nor did they discuss the 1999 Agreement. 	Cortez testified that her
intent in adding the "grievance resolutions" language was to preserve the 1999 Agreement.
DeSantis testified that he believed the "grievance resolutions" language was intended to
preserve SEID' s right to grieve the status change issue in the future and the City never would
have agreed to the language
if
it was intended to preserve the 1999 Agreement. He also
testified that he was unaware of the existence
of
the 1999 Agreement until just a few weeks
before the PERB hearing, though he admitted he knew in 2006 that the Division had a practice
of promoting mini-bus drivers according to seniority.
5

The 2006-2010 MOU, approved by the City Council on August 8, 2006, contains the
following relevant provisions:
Article 15, Section 1, Promotions
For promotions within the bargaining unit, the City shall first
consider qualified employee applicants; the City will select the
applicant who, in the City's judgment and discretion, is best
qualified by virtue of skills, abilities, experience and other
qualifications as defined in the job description and/or outlined in
the City's posting for vacancy; in the event of a tie between two
or more competing applicants, the employee with the greatest
City seniority shall be selected. The City reserves the right to
hire from outside the City if it is not satisfied with the
qualifications of the applicants. The City will first offer
interviews to the most qualified internal applicants.
Article 30, Subsection E
This Memorandum of Understanding will supercede all Side
Letters. Both parties recognize that this excludes grievance
resolutions documents.
The Division did not promote any mini-bus drivers from January 1, 2006 through
October 19, 2006. Beginning on October 20, 2006, mini-bus drivers were promoted in
accordance with Article 15, Section 1, of the MOU, instead of by seniority as had been done
from July 1999 through 2005.
ALJ's Proposed Decision
The ALJ ruled that the City made an unlawful unilateral change by promoting mini-bus
drivers according to the criteria in Article 15, Section 1, of the MOU beginning October 20,
2006. The ALJ found that the elements for a unilateral change had been met and therefore the
only issue in the case was whether SEIU waived its right to meet and confer over the change in
promotion criteria. Applying rules of contract interpretation, the ALJ concluded that the MOU
superseded the 1999 Agreement. However, the ALJ found this was insufficient to constitute a
waiver because it did not clearly indicate SEIU had "consciously yielded" its interest in the
6
The 2006-2010 MOU, approved by the City Council on August
8,
2006, contains the
following relevant provisions:
Article 15, Section 1, Promotions
For promotions within the bargaining unit, the City shall first
consider qualified employee applicants; the City will select the
applicant who, in the City's judgment and discretion, is best
qualified by virtue
of
skills, abilities, experience and other
qualifications as defined in the job description and/or outlined in
the City's posting for vacancy; in the event
of
a tie between two
or more competing applicants, the employee with the greatest
City seniority shall be selected. The City reserves the right to
hire from outside the City
if
it is not satisfied with the
qualifications
of
the applicants. The City will first offer
interviews to the most qualified internal applicants.
Article 30, Subsection E
This Memorandum
of
Understanding will supercede all Side
Letters. Both parties recognize that this excludes grievance
resolutions documents.
The Division did not promote any mini-bus drivers from January
1,
2006 through
October 19, 2006. Beginning on October 20, 2006, mini-bus drivers were promoted in
accordance with Article 15, Section
1,
of
the MOU, instead
ofby
seniority as had been done
from July 1999 through 2005.
ALJ' s Proposed Decision
The ALJ ruled that the City made an unlawful unilateral change by promoting mini-bus
drivers according to the criteria in Article 15, Section
1,
of
the MOU beginning October 20,
2006. The ALJ found that the elements for a unilateral change had been met and therefore the
only issue in the case was whether SEIU waived its right to meet and confer over the change in
promotion criteria. Applying rules of contract interpretation, the ALJ concluded that the MOU
superseded the 1999 Agreement. However, the ALJ found this was insufficient to constitute a
waiver because it did not clearly indicate SEIU had "consciously yielded" its interest in the
6

matter of mini-bus driver promotion criteria. The ALJ concluded that the status quo on that
issue remained unchanged by the MOU and thus any change from the promotion criteria in the
1999 Agreement must be negotiated with SEIU.
The City's Exceptions
The City excepts to the ALJ's ruling that it made an unlawful unilateral change by
altering the existing status quo regarding promotion criteria for mini-bus drivers. The City
argues that the MOU lawfully changed the status quo because: (1) the MOU superseded the
1999 Agreement, and (2) SEIU was unsuccessful in incorporating the promotion criteria from
the 1999 Agreement into the MOU. Thus, the City asserts, it was merely following the terms
of the negotiated MOU when it ceased to promote mini-bus drivers based on seniority. The
City also excepts to the ALJ's proposed remedy as "harsh and inappropriate under the
circumstances" because it would require demotion of incumbent mini-bus drivers.
SEIU's Exception and Response
SEIU excepts to the ALJ's conclusion that the 2006-2010 MOU superseded the 1999
Agreement. SEIU contends that the 1999 Agreement was a "grievance resolution document"
and therefore, pursuant to MOU Article 30, subsection E, it continued in full effect after the
MOU was adopted. In response to the City's exceptions, SEIU asserts that it did not waive its
right to meet and confer over promotion criteria for mini-bus drivers because: (1) MOU
Article 30, subsection E, did not constitute an intentional relinquishment of that right, and
(2) SEIU's abandonment of its proposal to expand the seniority promotion criteria to the entire
bargaining unit did not change the status quo regarding promotion criteria for mini-bus drivers.
77
matter of mini-bus driver promotion criteria. The ALJ concluded that the status quo on that
issue remained unchanged by the MOU and thus any change from the promotion criteria in the
1999 Agreement must be negotiated with SEIU.
The City's Exceptions
The City excepts to the ALJ' s ruling that it made an unlawful unilateral change by
altering the existing status quo regarding promotion criteria for mini-bus drivers. The City
argues that the MOU lawfully changed the status quo because: (1) the MOU superseded the
1999 Agreement, and (2) SEIU was unsuccessful in incorporating the promotion criteria from
the 1999 Agreement into the MOU. Thus, the City asserts, it was merely following the terms
of the negotiated MOU when it ceased to promote mini-bus drivers based on seniority. 	The
City also excepts to the ALJ' s proposed remedy as "harsh and inappropriate under the
circumstances" because it would require demotion of incumbent mini-bus drivers.
SEIU' s Exception and Response
SEIU excepts to the ALJ's conclusion that the 2006-2010 MOU superseded the 1999
Agreement. SEIU contends that the 1999 Agreement was a "grievance resolution document"
and therefore, pursuant to MOU Article 30, subsection E, it continued in full effect after the
MOU was adopted. In response to the City's exceptions, SEIU asserts that it did not waive its
right to meet and confer over promotion criteria for mini-bus drivers because: 	(1) MOU
Article 30, subsection E, did not constitute an intentional relinquishment of that right, and
(2) SEIU' s abandonment of its proposal to expand the seniority promotion criteria to the entire
bargaining unit did not change the status quo regarding promotion criteria for mini-bus drivers.

DISCUSSION
1 . 	Request for Oral Argument
Pursuant to PERB Regulation 32315, the City has filed a request for oral argument."
Historically, the Board has denied requests for oral argument when an adequate record has been
prepared, the parties had ample opportunity to present briefs and have availed themselves of that
opportunity, and the issues before the Board are sufficiently clear to make oral argument
unnecessary. (Antelope Valley Health Care District (2006) PERB Decision No. 1816-M; Arvin
Union School District (1983) PERB Decision No. 300.) Based on our review of the record, all
of the above criteria are met in this case. Therefore, the City's request for oral argument is
denied.
2. 	Unilateral Change
In determining whether a party has violated MMBA section 3505 and PERB Regulation
32603(c)" by refusing or failing to meet and confer in good faith, 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
PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 32315 provides in full:
A party desiring to argue orally before the Board itself regarding
the exceptions to the proposed decision shall file with the
statement of exceptions or the response to the statement of
exceptions a written request stating the reasons for the request.
Upon such request or its own motion the Board itself may direct
oral argument.
PERB Regulation 32603(c) provides: "It shall be an unfair practice for a public
agency to . . . [refuse or fail to meet and confer in good faith with an exclusive representative
as required by Government Code section 3505 or any local rule adopted pursuant to
Government Code section 3507."
8
DISCUSSION
1.
	Request for Oral Argument
Pursuant to PERB Regulation 32315, the City has filed a request for oral argument. 2
Historically, the Board has denied requests for oral argument when an adequate record has been
prepared, the parties had ample opportunity to present briefs and have availed themselves
of
that
opportunity, and the issues before the Board are sufficiently clear to make oral argument
unnecessary. (Antelope Valley Health Care District (2006) PERB Decision No. 1816-M; Arvin
Union School District (1983) PERB Decision No. 300.) Based on our review
of
the record, all
of
the above criteria are met in this case. Therefore, the City's request for oral argument is
denied.
2.	
Unilateral Change
In determining whether a party has violated MMBA section 3505 and PERB Regulation
32603(c)3 by refusing or failing to meet and confer in good faith, 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
2 PERB regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq. PERB Regulation 32315 provides in full:
A party desiring to argue orally before the Board itself regarding
the exceptions to the proposed decision shall file with the
statement
of
exceptions or the response to the statement
of
exceptions a written request stating the reasons for the request.
Upon such request or its own motion the Board itself may direct
oral argument.
3 PERB Regulation 32603(c) provides:	
"It
shall be an unfair practice for a public
agency to
...
[r]efuse or fail to meet and confer in good faith with an exclusive representative
as required by Government Code section 3505 or any local rule adopted pursuant to
Government Code section 3507."
8

Decision No. 143.)* A unilateral change is a "per se" violation if the following criteria are
met: (1) the respondent breached or altered the parties' written agreement or its own established
past practice; (2) such action was taken without giving the other party notice or an opportunity to
bargain over the change; (3) the change was not merely an isolated breach of the contract, but
amounts to a change in policy (i.e., it has a generalized effect or continuing impact upon
bargaining unit members' terms and conditions of employment); and (4) the change in policy
concerns a matter within the scope of representation. (Vernon Fire Fighters v. City of Vernon
(1980) 107 Cal.App.3d 802; Walnut Valley Unified School District (1981) PERB Decision
No. 160; 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.)
a. 	Breach of Written Agreement
The complaint alleged that the City made an unlawful unilateral change on
October 20, 2006, when it ceased to promote mini-bus drivers based on seniority and began
promoting drivers based on the criteria set forth in Article 15, Section 1, of the 2006-2010
MOU. SEIU contends that the 1999 Agreement to promote mini-bus drivers by seniority
remained in effect on the date of the change, while the City asserts that the MOU was the only
written agreement governing promotions in effect at that time. Thus, in order to determine
whether the City breached a written agreement, it is first necessary to decide whether the 1999
Agreement survived the adoption of the 2006-2010 MOU. This requires us to interpret the
meaning of Article 30, subsection E, the supersession provision of the MOU.
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. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
Decision No. 143.)4 A unilateral change is a "per se" violation
if
the following criteria are
met: 	(1) the respondent breached or altered the parties' written agreement or its own established
past practice; (2) such action was taken without giving the other party notice or an opportunity to
bargain over the change; (3) the change was not merely an isolated breach
of
the contract, but
amounts to a change in policy (i.e., it has a generalized effect or continuing impact upon
bargaining unit members' terms and conditions
of
employment); and ( 4) the change in policy
concerns a matter within the scope ofrepresentation. (Vernon Fire Fighters
v.
City
of
Vernon
(1980) 107 Cal.App.3d 802; Walnut Valley Unified School District (1981) PERB Decision
No. 160; 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.)
a.
	Breach
of
Written Agreement
The complaint alleged that the City made an unlawful unilateral change on
October 20, 2006, when it ceased to promote mini-bus drivers based on seniority and began
promoting drivers based on the criteria set forth in Article 15, Section
1,
of
the 2006-2010
MOU. 	SEIU contends that the 1999 Agreement to promote mini-bus drivers by seniority
remained in effect on the date
of
the change, while the City asserts that the MOU was the only
written agreement governing promotions in effect at that time. Thus, in order to determine
whether the City breached a written agreement, it is first necessary to decide whether the 1999
Agreement survived the adoption of the 2006-2010 MOU. This requires us to interpret the
meaning of Article 30, subsection E, the supersession provision of the MOU.
* 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. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
9

"PERB may interpret contract language if doing so is necessary in deciding an unfair
practice charge case." (County of Ventura (2007) PERB Decision No. 1910-M.) Traditional
rules of contract law guide interpretation of a collective bargaining agreement between a public
employer and a recognized employee organization. (National City Police Officers' Assn. v.
City of National City (2001) 87 Cal.App.4th 1274, 1279; Grossmont Union High School
District (1983) PERB Decision No. 313.)
"A contract must be so interpreted as to give effect to the mutual intention of the parties
as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ.
Code, $ 1636.) Where contractual language is clear and unambiguous, it is unnecessary to go
beyond the plain language of the contract itself to ascertain its meaning. (Civ. Code, $ 1638;
Marysville Joint Unified School District (1983) PERB Decision No. 314.) "The whole of a
contract is to be taken together, so as to give effect to every part, if reasonably practicable,
each clause helping to interpret the other." (Civ. Code, $ 1641.) Thus, "the Board must avoid
an interpretation of contract language which leaves a provision without effect." (State of
California (Department of Corrections) (1999) PERB Decision No. 1317-S.)
Article 30, subsection E, states in full:
This Memorandum of Understanding will supercede all Side
Letters. Both parties recognize that this excludes grievance
resolutions documents.
The parties offer contrary interpretations of this language. The City asserts the language
indicates that the 1999 Agreement was superseded by the MOU, while SEIU contends the
language prevented the 1999 Agreement from being superseded by the MOU. Because the
provision does not explicitly mention the 1999 Agreement, and it is unclear whether the 1999
Agreement is a side letter or a grievance resolution document under the provision, we find that
10
"PERB may interpret contract language if doing so is necessary in deciding an unfair
practice charge case." (County of Ventura (2007) PERB Decision No. 1910-M.) Traditional
rules of contract law guide interpretation of a collective bargaining agreement between a public
employer and a recognized employee organization. (National City Police Officers' Assn. v.
City of National City (2001) 87 Cal.App.4th 1274, 1279; Grossmont Union High School
District (1983) PERB Decision No. 313.)
"A contract must be so interpreted as to give effect to the mutual intention of the parties
as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ.
Code,§ 1636.) Where contractual language is clear and unambiguous, it is unnecessary to go
beyond the plain language of the contract itself to ascertain its meaning. (Civ. Code, § 163 8;
Marysville Joint Unified School District (1983) PERB Decision No. 314.) "The whole of a
contract is to be taken together, so as to give effect to every part, if reasonably practicable,
each clause helping to interpret the other." (Civ. Code,§ 1641.) Thus, "the Board must avoid
an interpretation of contract language which leaves a provision without effect." (State of
California (Department of Corrections) (1999) PERB Decision No. 1317-S.)
Article 30, subsection E, states in full:
This Memorandum of Understanding will supercede all Side
Letters. Both parties recognize that this excludes grievance
resolutions documents.
The parties offer contrary interpretations of this language. The City asserts the language
indicates that the 1999 Agreement was superseded by the MOU, while SEIU contends the
language prevented the 1999 Agreement from being superseded by the MOU. Because the
provision does not explicitly mention the 1999 Agreement, and it is unclear whether the 1999
Agreement is a side letter or a grievance resolution document under the provision, we find that

the plain language of Article 30, subsection E, is ambiguous regarding supersession of the
1999 Agreement.
If contract language is ambiguous, the Board may consider extrinsic evidence, such as
bargaining history, to ascertain the meaning of contractual terms. (Barstow Unified School
District (1997) PERB Decision No. 1138b; Los Angeles Unified School District (1984) PERB
Decision No. 407.) The City's initial proposal for the 2006-2010 MOU contained language
that all side letters would be superseded by the MOU. During negotiations, Cortez, SEIU's
chief negotiator, asked Cassidy, an attorney representing the City, which side letters the City
intended to be superseded by the new MOU. The City responded by producing a copy of the
1999 Agreement. Cortez replied that the 1999 Agreement was a "grievance resolution
document," not a side letter. SEIU continued to characterize the 1999 Agreement in this way
throughout negotiations; the City never responded to SEIU's characterization of the document.
Further, no other document that resulted from resolution of a grievance was discussed by the
parties during negotiations. Thus, the bargaining history shows that SEIU intended the
exclusionary language in Article 30, subsection E, to shield the 1999 Agreement from
supersession by the MOU.
On the other hand, Desantis testified that he believed the exclusionary language was
intended to preserve SEIU's right to grieve the "status change" issue in the future. This is so,
he testified, because just prior to proposing the exclusion language Cortez had indicated SEIU
would pursue the "status change" issue through the grievance process. However, this
interpretation of Article 30, subsection E, is not reasonable in light of the fact that the City
knew SEIU considered the 1999 Agreement to be a "grievance resolution document." At the
PERB hearing, Desantis denied knowledge of the 1999 Agreement prior to 2007 and said he
was unaware of any conversation regarding the 1999 Agreement during bargaining in 2006.
11
the plain language
of
Article 30, subsection
E, is ambiguous regarding supersession
of
the
1999 Agreement.
If
contract language is ambiguous, the Board may consider extrinsic evidence, such as
bargaining history, to ascertain the meaning
of
contractual terms. 	(Barstow Unified School
District (1997) PERB Decision No. 1138b; Los Angeles Unified School District (1984) PERB
Decision No. 407.) The City's initial proposal for the 2006-2010 MOU contained language
that all side letters would be superseded by the MOU. During negotiations, Cortez, SEIU's
chief negotiator, asked Cassidy, an attorney representing the City, which side letters the City
intended to be superseded by the new MOU. The City responded by producing a copy
of
the
1999 Agreement. Cortez replied that the 1999 Agreement was a "grievance resolution
document," not a side letter. SEIU continued to characterize the 1999 Agreement in this way
throughout negotiations; the City never responded to SEIU's characterization
of
the document.
Further, no other document that resulted from resolution
of
a grievance was discussed by the
parties during negotiations. Thus, the bargaining history shows that SEIU intended the
exclusionary language in Article 30, subsection E, to shield the 1999 Agreement from
supersession by the MOU.
On the other hand, DeSantis testified that he believed the exclusionary language was
intended to preserve SEIU's right to grieve the "status change" issue in the future. 	This is so,
he testified, because just prior to proposing the exclusion language Cortez had indicated SEIU
would pursue the "status change" issue through the grievance process. However, this
interpretation
of
Article 30, subsection E, is not reasonable in light of the fact that the City
knew SEIU considered the 1999 Agreement to be a "grievance resolution document." 	the
PERB hearing, DeSantis denied knowledge of the 1999 Agreement prior to 2007 and said he
was unaware of any conversation regarding the 1999 Agreement during bargaining in 2006.
11

Yet he also testified that he attended all bargaining sessions, that he was aware of the
Division's practice of promoting mini-bus drivers according to seniority and that the "minibus
driver promotion process . . . was the gorilla in the room" during negotiations. Given the
importance of the mini-bus driver promotion issue to both parties, it is implausible that
Desantis could have gone through the entire negotiation process without learning that SEIU
considered the 1999 Agreement to be a "grievance resolution document." Accordingly, his
testimony that he was unaware that the exclusionary language in Article 30, subsection E,
referred to the 1999 Agreement lacks credibility. Therefore, the bargaining history fails to
support the City's interpretation of Article 30, subsection E.
Furthermore, the City's interpretation of Article 30, subsection E, is contrary to the
plain language of the provision and would leave the second sentence without effect. Contract
language is to be given its ordinary meaning unless the parties have mutually placed a special
meaning on the language. (Civ. Code, $ 1644; Marin Community College District (1995)
PERB Decision No. 1092.) "Supersede" means "To take the place of; replace or succeed."
(American Heritage Dict. (new college ed. 1980) p. 1292.) There is no indication the parties
intended for "supercede" in Article 30, subsection E, to mean anything different than the
standard dictionary definition. Therefore, the first sentence of the subsection states that the
MOU will replace all side letters, while the second sentence excludes "grievance resolutions
documents" from being replaced by the MOU. Because only something in existence can be
replaced, the second sentence by its terms applies only to existing documents, not to future
documents as the City contends. Indeed, the City could have included the word "future" in the
sentence to signal its intent but did not do so. Nonetheless, the City's interpretation would
leave the second sentence without effect because no future grievance resolution documents
would exist at the time the MOU became effective and thus there would be nothing to exclude
12
Yet he also testified that he attended all bargaining sessions, that he was aware
of
the
Division's practice
of
promoting mini-bus drivers according to seniority and that the "minibus
driver promotion process
...
was the gorilla in the room" during negotiations. Given the
importance
of
the mini-bus driver promotion issue to both parties, it is implausible that
DeSantis could have gone through the entire negotiation process without learning that SEIU
considered the 1999 Agreement to be a "grievance resolution document." Accordingly, his
testimony that he was unaware that the exclusionary language in Article 30, subsection E,
referred to the 1999 Agreement lacks credibility. Therefore, the bargaining history fails to
support the City's interpretation
of
Article 30, subsection
E.
Furthermore, the City's interpretation
of
Article 30, subsection E, is contrary to the
plain language
of
the provision and would leave the second sentence without effect. Contract
language is to be given its ordinary meaning unless the parties have mutually placed a special
meaning on the language. (Civ. Code, § 1644; Marin Community College District (1995)
PERB Decision No. 1092.) "Supersede" means "To take the place of; replace or succeed."
(American Heritage Diet. (new college ed. 1980) p. 1292.) There is no indication the parties
intended for "supercede" in Article 30, subsection E, to mean anything different than the
standard dictionary definition. Therefore, the first sentence
of
the subsection states that the
MOU will replace all side letters, while the second sentence excludes "grievance resolutions
documents" from being replaced by the MOU. Because only something in existence can be
replaced, the second sentence by its terms applies only to existing documents, not to future
documents as the City contends. Indeed, the City could have included the word "future" in the
sentence to signal its intent but did not do so. Nonetheless, the City's interpretation would
leave the second sentence without effect because no future grievance resolution documents
would exist at the time the MOU became effective and thus there would be nothing to exclude
12

from supersession. Accordingly, in light of the Civil Code's instruction to interpret a contract
"so as to give effect to every part," we find that Article 30, subsection E, is not reasonably
susceptible to the interpretation advanced by the City.
For the reasons above, we conclude that, pursuant to Article 30, subsection E, the 2006-
2010 MOU did not supersede the 1999 Agreement and therefore the 1999 Agreement remained
in full effect on October 20, 2006. Accordingly, the City's promotion of mini-bus drivers by
criteria other than seniority beginning on that date constituted a breach of the parties' written
agreement.
b. 	Notice or Opportunity to Meet and Confer
In its exceptions, the City asserts that no unilateral change occurred because the City
notified SEIU of its intention to eliminate the 1999 Agreement at the start of negotiations and
the parties bargained over promotion by seniority for the entire bargaining unit. While these
assertions are true, they do not establish that the City provided SEIU with notice or an
opportunity to meet and confer over the change that occurred on October 20, 2006. As found
above, the MOU did not supersede the 1999 Agreement. Therefore, that agreement remained
in full effect on October 20, 2006, and the City was obligated to bargain with SEIU before
changing any terms of the Agreement. Because the City did not provide SEIU with notice or
the opportunity to meet and confer before implementing the change in mini-bus driver
promotion criteria, the second element of the unilateral change test has been met.
C. 	Change in Policy
A breach of the MOU constitutes a unilateral change in violation of the MMBA only if
the breach has "a generalized effect or continuing impact upon the terms and conditions of
employment of bargaining unit members." (Grant Joint Union High School District, supra.)
The Board has found a "continuing impact" when the breaching party asserts the change was
13
from supersession. Accordingly, in light of the Civil Code's instruction to interpret a contract
"so as to give effect to every part," we find that Article 30, subsection E, is not reasonably
susceptible to the interpretation advanced by the City.
For the reasons above, we conclude that, pursuant to Article 30, subsection E, the 2006-
2010 MOU did not supersede the 1999 Agreement and therefore the 1999 Agreement remained
in full effect on October 20, 2006. Accordingly, the City's promotion of mini-bus drivers by
criteria other than seniority beginning on that date constituted a breach of the parties' written
agreement.
b. 	Notice or Opportunity to Meet and Confer
In its exceptions, the City asserts that no unilateral change occurred because the City
notified SEID of its intention to eliminate the 1999 Agreement at the start of negotiations and
the parties bargained over promotion by seniority for the entire bargaining unit. While these
assertions are true, they do not establish that the City provided SEID with notice or an
opportunity to meet and confer over the change that occurred on October 20, 2006. As found
above, the MOU did not supersede the 1999 Agreement. Therefore, that agreement remained
in full effect on October 20, 2006, and the City was obligated to bargain with SEID before
changing any terms of the Agreement. Because the City did not provide SEID with notice or
the opportunity to meet and confer before implementing the change in mini-bus driver
promotion criteria, the second element of the unilateral change test has been met.
c. 	Change in Policy
A breach of the MOU constitutes a unilateral change in violation of the MMBA only if
the breach has "a generalized effect or continuing impact upon the terms and conditions of
employment of bargaining unit members." (Grant Joint Union High School District, supra.)
The Board has found a "continuing impact" when the breaching party asserts the change was
13

authorized by the collective bargaining agreement because this indicates the party will
continue to apply the new policy in the future. (Fremont Unified School District (1997) PERB
Decision No. 1240; Hacienda La Puente Unified School District (1997) PERB Decision
No. 1186.) Here, the City claims that Article 15, Section 1, of the 2006-2010 MOU allows it to
promote mini-bus drivers based on criteria other than seniority. Therefore, because the City has
indicated it will continue to apply this policy in the future, the breach constitutes a change in
policy.
d. 	Matter within the Scope of Representation
The parties do not dispute that promotion criteria and procedures for filling
vacancies are within the scope of representation. (Fire Fighters Union v. City of Vallejo,
supra, 12 Cal.3d at p. 618; International Assn. of Fire Fighters Union v. City of Pleasanton
(1976) 56 Cal.App.3d 959, 971; Healdsburg Union High School District and Healdsburg
Union School District/San Mateo City School District (1984) PERB Decision No. 375.)
Because all four elements of the unilateral change test have been met, we conclude that
the City violated MMBA section 3505 and PERB Regulation 32603(c) when it ceased to
promote mini-bus drivers based on seniority pursuant to the 1999 Agreement without
providing SEIU with notice or an opportunity to request to meet and confer over the change.
3. 	Remedy
As part of the proposed remedy, the ALJ ordered the City to retroactively promote
mini-bus drivers according to the 1999 Agreement. The City excepts to this remedy as "harsh
and inappropriate under the circumstances" because it would require demotion of incumbents.
SEIU responds it is likely that many of the drivers promoted since October 20, 2006, would
have been promoted anyway under the 1999 Agreement criteria and, therefore, the practical
effect of the Board's order will be minimal.
14
authorized by the collective bargaining agreement because this indicates the party will
continue to apply the new policy in the future. 	(Fremont Unified School District ( 1997) PERB
Decision No. 1240; Hacienda La Puente Unified School District (1997) PERB Decision
No. 1186.) Here, the City claims that Article 15, Section
1,
of
the 2006-2010 MOU allows it to
promote mini-bus drivers based on criteria other than seniority. Therefore, because the City has
indicated it will continue to apply this policy in the future, the breach constitutes a change in
policy.
d.	
Matter within the Scope
of
Representation
The parties do not dispute that promotion criteria and procedures for filling
vacancies are within the scope ofrepresentation. (Fire Fighters Union
v.
City
of
Vallejo,
supra, 12 Cal.3d at p. 618; International Assn.
of
Fire Fighters Union
v.
City
of
Pleasanton
(1976) 56 Cal.App.3d 959,971; Healdsburg Union High School District and Healdsburg
Union School District/San Mateo City School District (1984) PERB Decision No. 375.)
Because all four elements
of
the unilateral change test have been met, we conclude that
the City violated MMBA section 3505 and PERB Regulation 32603(c) when it ceased to
promote mini-bus drivers based on seniority pursuant to the 1999 Agreement without
providing SEIU with notice or an opportunity to request to meet and confer over the change.
3. 	Remedy
As part
of
the proposed remedy, the ALJ ordered the City to retroactively promote
mini-bus drivers according to the 1999 Agreement. The City excepts to this remedy as "harsh
and inappropriate under the circumstances" because it would require demotion of incumbents.
SEIU responds it is likely that many of the drivers promoted since October 20, 2006, would
have been promoted anyway under the 1999 Agreement criteria and, therefore, the practical
effect of the Board's order will be minimal.
14

The normal remedy for a unilateral change is to restore the status quo by rescinding the
change and making affected employees whole for any losses suffered as a result of the change.
(California State Employees Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th
923, 946.) However, when the unilateral change results in a benefit to members of the
bargaining unit, PERB will not order the benefit rescinded. (Nevada Joint Union High School
District (1985) PERB Decision No. 557.) When an employee is promoted as a result of the
employer's unlawful failure to promote another employee, PERB has found the remedial
purpose of the applicable Act is not served by ordering rescission of the innocent employee's
promotion. (State of California (Department of Corrections) (2001) PERB Decision
No. 1435-S; State of California (Department of Parks and Recreation) (1983) PERB Decision
No. 328-S; see Denver Post Corp. (1999) 328 NLRB 118, 126 [employer unilaterally
promoted bargaining unit members; NLRB ordered promotions rescinded only if union
requested rescission].) In such cases, the Board has ordered the employer to offer the affected
employee the next available position equivalent to the one unlawfully denied or to place the
employee at the top of the promotion list for such a position, as well as pay the affected
employee appropriate monetary relief. (State of California (Department of Corrections),
supra; State of California (Department of Parks and Recreation), supra.)
The City's unilateral change in promotion criteria for mini-bus drivers resulted in the
promotion of drivers who would not have been promoted had the City abided by the 1999
Agreement to promote by seniority. However, it would not effectuate the remedial purpose of
the MMBA to invalidate the promotions of these innocent drivers. Instead, we shall order the
City to restore those drivers who would have been promoted based on seniority to the position
they would be in but for the unilateral change by: (1) reinstating the promotion criteria set
forth in the 1999 Agreement, thereby moving those drivers with the most seniority to the top of
15
The normal remedy for a unilateral change is to restore the status quo by rescinding the
change and making affected employees whole for any losses suffered as a result
of
the change.
(California State Employees Assn.
v.
Public Employment Relations Bd. (1996)
51
Cal.App.4th
923, 946.) However, when the unilateral change results in a benefit to members
of
the
bargaining unit, PERB will not order the benefit rescinded. (Nevada Joint Union High School
District (1985) PERB Decision No. 557.) When an employee is promoted as a result
of
the
employer's unlawful failure to promote another employee, PERB has found the remedial
purpose
of
the applicable Act is not served by ordering rescission
of
the innocent employee's
promotion. (State
of
California (Department
of
Corrections) (2001) PERB Decision
No. 1435-S; State
of
California (Department
of
Parks and Recreation) (1983) PERB Decision
No. 328-S; see Denver Post Corp. (1999) 328 NLRB 118, 126 [employer unilaterally
promoted bargaining unit members; NLRB ordered promotions rescinded only
if
union
requested rescission].) In such cases, the Board has ordered the employer to offer the affected
employee the next available position equivalent to the one unlawfully denied or to place the
employee at the top
of
the promotion list for such a position, as well as pay the affected
employee appropriate monetary relief. 	(State
of
California (Department
of
Corrections),
supra; State
of
California (Department
of
Parks and Recreation), supra.)
The City's unilateral change in promotion criteria for mini-bus drivers resulted in the
promotion
of
drivers who would not have been promoted had the City abided by the 1999
Agreement to promote by seniority. However, it would not effectuate the remedial purpose of
the MMBA to invalidate the promotions of these innocent drivers. Instead, we shall order the
City to restore those drivers who would have been promoted based on seniority to the position
they would be in but for the unilateral change by: (1) reinstating the promotion criteria set
forth in the 1999 Agreement, thereby moving those drivers with the most seniority to the top of
15

the promotion list; and (2) paying the drivers wages and benefits they would have received had
they been promoted according to the 1999 Agreement, from the date the driver would have
been promoted under the prior policy to the date the driver is/was promoted to the higher time
base position.
ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
matter, it is found that the City of Riverside (City) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503, 3505, and 3506, and Public Employment
Relations Board (PERB) Regulation 32603(a), (b) and (c) (Cal. Code Regs., tit. 8, sec. 31001
et seq.), by ceasing to promote mini-bus drivers based on seniority as required by the parties'
July 1999 written grievance resolution without providing Service Employees International
Union, Local 1997 (SEIU), with notice or an opportunity to request to meet and confer over the
change.
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 . 	Implementing any change in policy regarding the method by which mini-
bus drivers working at a lower time base are selected to fill vacant mini-bus driver positions
with a higher time base without first notifying and providing SEIU, upon request, with an
opportunity to meet and confer over the change.
2. 	Interfering with the right of employees to be represented by SEIU by the
conduct described in paragraph A.1. above.
3. 	Denying SEIU the right to represent employees by the conduct described
in paragraph A.1. above.
16
the promotion list; and (2) paying the drivers wages and benefits they would have received had
they been promoted according to the 1999 Agreement, from the date the driver would have
been promoted under the prior policy to the date the driver is/was promoted to the higher time
base position.
ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
matter, it is found that the City of Riverside (City) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503, 3505, and 3506, and Public Employment
Relations Board (PERB) Regulation 32603(a), (b) and (c) (Cal. Code Regs., tit. 8, sec. 31001
et seq.), by ceasing to promote mini-bus drivers based on seniority as required by the parties'
July 1999 written grievance resolution without providing Service Employees International
Union, Local 1997 (SEIU), with notice or an opportunity to request to meet and confer over the
change.
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. 	Implementing any change in policy regarding the method by which mini-
bus drivers working at a lower time base are selected to fill vacant mini-bus driver positions
with a higher time base without first notifying and providing SEIU, upon request, with an
opportunity to meet and confer over the change.
2. 	Interfering with the right of employees to be represented by SEIU by the
conduct described in paragraph A. l. above.
3. 	Denying SEIU the right to represent employees by the conduct described
in paragraph A. l. above.
16

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1 . 	Rescind the policy change implemented on October 20, 2006, regarding
the method by which mini-bus drivers working at a lower time base are selected to fill vacant
mini-bus driver positions with a higher time base and restore the previous policy as contained
in the Minibus Driver Promotion by Seniority Proposal grievance resolution of July 1999.
2 . 	Reimburse mini-bus drivers for wages and benefits they would have
received had the City not unilaterally changed its promotion policy, from the date the driver
would have been promoted under the prior policy to the date the driver is/was promoted to the
higher time base position. This award shall include interest at the rate of seven (7) percent per
annum.
3 . 	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
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
4. 	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 SEIU.
Members Neuwald and Wesley joined in this Decision.
17
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind the policy change implemented on October 20, 2006, regarding
the method by which mini-bus drivers working at a lower time base are selected to fill vacant
mini-bus driver positions with a higher time base and restore the previous policy as contained
in the Minibus Driver Promotion by Seniority Proposal grievance resolution
of
July 1999.
2.	
Reimburse mini-bus drivers for wages and benefits they would have
received had the City not unilaterally changed its promotion policy, from the date the driver
would have been promoted under the prior policy to the date the driver is/was promoted to the
higher time base position. This award shall include interest at the rate
of
seven (7) percent per
annum.
3. 	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
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
4. 	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 SEIU.
Members Neuwald and Wesley joined in this Decision.
17

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-347-M, Service Employees
International Union, Local 1997 v. City of Riverside, in which all parties had the right to
participate, it has been found that the City of Riverside (City) violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3503, 3505, and 3506, by ceasing to promote
mini-bus drivers based on seniority as required by the parties' July 1999 written grievance
resolution without providing Service Employees International Union, Local 1997 (SEIU), with
notice or an opportunity to request to meet and confer over the change.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Implementing any change in policy regarding the method by which mini-
bus drivers working at a lower time base are selected to fill vacant mini-bus driver positions
with a higher time base without first notifying and providing SEIU, upon request, with an
opportunity to meet and confer over the change.
2. Interfering with the right of employees to be represented by SEIU by the
conduct described in paragraph A.1. above.
3. 	Denying SEIU the right to represent employees by the conduct described
in paragraph A.1. above.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the policy change implemented on October 20, 2006, regarding
the method by which mini-bus drivers working at a lower time base are selected to fill vacant
mini-bus driver positions with a higher time base and restore the previous policy as contained
in the Minibus Driver Promotion by Seniority Proposal grievance resolution of July 1999.
2. 	Reimburse mini-bus drivers for wages and benefits they would have
received had the City not unilaterally changed its promotion policy, from the date the driver
would have been promoted under the prior policy to the date the driver is/was promoted to the
higher time base position. This award shall include interest at the rate of seven (7) percent per
annum.
Dated: 	CITY OF RIVERSIDE
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
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-347-M, Service Employees
International Union, Local 1997
v.
City
of
Riverside, in which all parties had the right to
participate, it has been found that the City
of
Riverside (City) violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3503, 3505, and 3506, by ceasing to promote
mini-bus drivers based on seniority as required by the parties' July 1999 written grievance
resolution without providing Service Employees International Union, Local 1997 (SEIU), with
notice or an opportunity to request to meet and confer over the change.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Implementing any change in policy regarding the method by which mini-
bus drivers working at a lower time base are selected to fill vacant mini-bus driver positions
with a higher time base without first notifying and providing SEIU, upon request, with an
opportunity to meet and confer over the change.
2.	
Interfering with the right
of
employees to be represented by SEIU by the
conduct described in paragraph A
1.
above.
3.	
Denying SEIU the right to represent employees by the conduct described
in paragraph A
1.
above.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind the policy change implemented on October 20, 2006, regarding
the method by which mini-bus drivers working at a lower time base are selected to fill vacant
mini-bus driver positions with a higher time base and restore the previous policy as contained
in the Minibus Driver Promotion by Seniority Proposal grievance resolution
of
July 1999.
2. 	Reimburse mini-bus drivers for wages and benefits they would have
received had the City not unilaterally changed its promotion policy, from the date the driver
would have been promoted under the prior policy to the date the driver is/was promoted to the
higher time base position. This award shall include interest at the rate
of
seven (7) percent per
annum.
Dated: 	CITY OF RIVERSIDE
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.