City and County of San Francisco (PERB 2064M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATIONARY ENGINEERS LOCAL 39,
Charging Party, Case No. SF-CE-610-M
Vv. PERB Decision No. 2064-M
CITY & COUNTY OF SAN FRANCISCO, September 25, 2009
Respondent.

Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Stationary
Engineers Local 39; Gina M. Roccanova, Deputy City Attorney, for City and County of
San Francisco.
Before McKeag, Neuwald and Wesley, Members.
. DECISION

WESLEY, Member: This case is before the Public Employment Relations Board (Board)
on appeal by Stationary Engineers Local 39 (Local 39) of a Board agent’s dismissal (attached)
of its unfair practice charge. The charge alleged that the City and County of San Francisco
(City) violated the Meyers-Milias-Brown Act (MMBA)' section 3505; PERB Regulation
32603(a)-(g);? and the City’s Charter sections A8.409-3 and A8.409-4, by engaging in bad faith
bargaining.

The Board has reviewed the dismissal and the record in light of Local 39’s appeal, the

City’s response and the relevant law. Based on this review, the Board finds the Board agent’s

warning and dismissal letters to be a correct statement of the law and well reasoned, and

‘ MMBA is codified at Government Code section 3500 et seq.

* PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

therefore adopts them
as
the decision
of
the Board itself
as
supplemented by the discussion
below.
DISCUSSION
Local 39 and the City are parties to a memorandum
of
understanding (MOU) with a
term
of
July
1,
2006 through June 30, 2009.
In June 2008, the City proposed to extend the parties' MOU for one year, from July
1,
2009 to June 30, 2010, which would result in wages being frozen for that time. Local 39
agreed in principle with this proposal. There is no evidence
of
a formal agreement.
In a letter dated November 19, 2008, the City notified Local 39 that it sought to
negotiate a successor MOU, provided the name and contact information for the City's
chief
negotiator, and invited Local 39 to schedule dates to begin negotiations. Attached to the letter,
the City submitted a written proposal that there would be "no new economic benefits" for a
total
of
18
months, from July
1,
2009 through December 31, 2010.3 Local 39 claims this is a
regressive proposal and therefore amounts to bad faith bargaining by the City.
Additionally, the November 19, 2008 letter discussed the parties' obligations under the
City Charter, stating in relevant part:
As you know, Charter Section A 8.409-4 requires the parties to
name their arbitration panel members no later than January 20
Reserving its right
of
substitution, the City hereby names Jennifer
Johnston as its arbitration panel member in the event impasse is
reached.
th .
Please note that the Charter also sets deadlines for selection
of
a
neutral party to chair the arbitration panel. We will be contacting
you to discuss the selection of this individual.
3 The proposal also included a "me-too" clause, such that if wage increases were given
(or awarded by an arbitration panel) to other City unions during the period from July through
December 2010, wage increases would be offered to Local 39 as well.
2

A follow up letter from the City, dated November 25, 2008, provided the names
of
three (3) neutral arbitrators
as
potential chairs
of
the arbitration panel.
Local 39 contends that because the Charter did not require the appointment
of
the
arbitration panel until January 20, 2009, the reference to selection
of
the panel "compounded
the pressure" on Local 39, and further demonstrated bad faith bargaining by the City.
The Board agent correctly held that even if the City's November 19, 2008, bargaining
proposal was a regressive proposal, one indicia
of
bad faith bargaining is insufficient to establish
unlawful conduct. Furthermore, the Board agent found that the charge failed to allege facts
sufficient to establish that the totality
of
the City's conduct was intended to subvert the
bargaining process or that it evidenced subjective bad faith.
On appeal, Local 39 asserts that the City's November
19
letter was a demand that "the
Union take the first step in the impasse resolution process." Local 39 asserts that this demand
demonstrates the City's intent to merely go through the motions
of
bargaining, and thereby
should be considered a second indicia
of
bad faith bargaining.
As properly set forth in the dismissal, the Board has held several factors to be indicative
of
surface bargaining. However, merely informing a union
of
its obligations under a local city
charter has not been recognized as such.
After a thorough review
of
the record in this matter, including the November 19 and 25,
2008 letters, we find no evidence to support the claim that the City demanded that Local 39
move to the impasse resolution process. Rather, the letter merely notifies Local 39 of the
City's arbitration panel member and reminds Local 39 of the City Charter requirements.
Accordingly, the City's reference to the arbitration panel and City Charter are not an indicia of
surface bargaining, and Local 39's argument is without merit.
3

Therefore, based on the analysis in the Board agent's dismissal, and the findings above,
the Board finds that the charge fails to state a prima facie case
of
bad faith bargaining.
ORDER
The unfair practice charge in Case No. SF-CE-610-M is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Members McKeag and Neuwald joined in this Decision
4

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ARNOLD SCHWARZENEGGER, Governor
============-=============--=========~==
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
May 6, 2009
Stewart Weinberg, Attorney
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501-1091
Re: 	Stationary Engineers Local 39v. City & County of San Francisco
Unfair Practice Charge No. SF-CE-610-M
DISMISSAL LETTER
Dear Mr. Weinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 10, 2008. The Stationary Engineers Local 39 (Union or
Charging Party) alleges that the City & County of San Francisco (City or Respondent) violated
section 3505 oftheMeyers-Milias-Brown Act (MMBA or Act),1 PERB Regulation 32603(a)
(g), and the Charter of the City and County of San Francisco, sections A8.40-3 and AS.409-4
by engaging in bad faith bargaining.
Charging Party was informed in the attached Warning Letter dated April 16, 2009 that the
above-referenced charge did not state a prima facie case. Charging Party was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, the charge should be amended. Charging Party was further advised
that, unless the charge was amended to state a prima facie case or withdrawn prior to April 24,
2009, the charge would be dismissed.
PERB has not received either an amended charge or a request for withdrawal. On April 30,
2009 the undersigned left you a voicemail message stating that PERB had not received a
response to the Warning Letter and that the charge would be dismissed. Therefore, the charge
is hereby dismissed based on the facts and reasons set forth in the April 16, 2009 Warning
Letter.
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-610-M
May 6, 2009
Page 2
this dismissal. (Cal. Code Regs, tit.
8,
sec. 32635(a).) Any document filed with the
Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit.
8,
secs. 32135(a) and 32130; see also Gov. Code, sec. 11020(a).) A
document is also considered "filed" when received by facsimile transmission before the close
of
business together with a Facsimile Transmission Cover Sheet which meets the requirements
of
PERB Regulation 32135(d), provided the filing party also places the original, together with
the required number
of
copies and proof
of
service,
in
the U.S. mail. (Cal. Code Regs, tit.
8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit.
8,
secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with
the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs, tit.
8,
sec. 32635(b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, sec. 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, sec. 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and,
if
known, the position of
each other party regarding the extension, and shall be accompanied by proof of
service
of
the
request upon each party. 	(Cal. Code Regs, tit. 8, sec. 32132.)

SF-CE-610-M
May 6, 2009
Page 3
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General
Cou~
-qv/...,l
__
u--.
___
____,>...,.<:..:.::--.
---
. autauav1s
Regional Attorney
Utachment
cc: Gina Roccanova

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ARNOLD SCHWARZENEGGER, Governor
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1021
Fax: (510) 622-1027
April 16, 2009
Stewart Weinberg, Attorney
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501-1091
Re: 	Stationary Engineers Local 39
v.
City & County
of
San Francisco
Unfair Practice Charge No. SF-CE-610-M
WARNING LETTER
Dear Mr. Weinberg:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 10, 2008. The Stationary Engineers Local 39 (Union or
Charging Party) alleges that the City & County
of
San Francisco (City or Respondent) violated
section 3505
of
the Meyers-Milias-Brown Act (MMBA or Act), 1 PERB Regulation 32603(a)
(g), and the Charter
of
the City and County
of
San Francisco, sections A8.40-3 and A8.409-4
by engaging in bad faith bargaining.
Summary
of
Facts
My investigation reveals the following facts.
The Union and the City are parties to a Memorandum
of
Understanding (MOU) with a term
of
July
1,
2006 through June 30, 2009.
In June 2008, the City's voters passed Proposition B. Proposition B amended the City's
Charter to establish a retiree health trust fund, restructure some retirement benefits, and freeze
wages for all City workers from July
1,
2009 to June 30, 2010.
Accordingly, in June 2008, the City proposed to extend the MOU for one year, from July 1,
2009 to June 30, 2010, with the effect that wages would not be increased during this one-year
extension. The Union agreed in principle with this proposal.
On November 19, 2008, the City notified the Union that it sought to negotiate a successor
MOU and asked the Union to select a neutral arbitrator in accordance with the City's Charter,
which provides for review by an arbitration panel in the event of a bargaining impasse.
1 The MMBAis codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SF-CE-610-M
April 16, 2009
Page2
Charter section A 8.409-4 requires parties
to
name their arbitration panel members no later
than January 20, 2009.
Also on November 19, 2008, the City made a written bargaining proposal to the Union.
Therein, the City proposed that there would be "no new economic benefits" (i.e., a wage
freeze) for a total
of
18
months, from July
1,
2009 through December 31, 2010. The proposal
includes a provision that wage increases would be offered in the last six months
of
the
wage
freeze (i.e., from July through December 2010)
if
such wage increases were given to other City
unions, or awarded to other City unions by an arbitration panel
(a
"me-too" clause).
The City Charter, section A8.409-3 provides for an obligation to bargain in good faith with
respect to labor relations. 	City Charter section A8.409-4 provides for impasse resolution
procedures.
Bad Faith Bargaining
The charge alleges that the employer violated Government Code section 3505 and PERB
Regulation 32603(c)2 by engaging in bad faith or "surface" bargaining. Bargaining in good
faith is a "subjective attitude and requires a genuine desire to reach agreement." (Placentia
Fire Fighters
v.
City
of
Placentia (1976) 57 Cal.App.3d
9,
25.) PERB has held it is the
essence
of
surface bargaining that a party goes through the motions
of
negotiations, but in fact
is weaving otherwise unobjectionable conduct into an entangling fabric to delay or prevent
agreement. (Muroc Unified School District (1978) PERB Decision No. 80.)3 Where there is
an accusation
of
surface bargaining, PERB will resolve the question
of
good faith by analyzing
the totality
of
the accused party's conduct. The Board weighs the facts to detennine whether
the conduct at issue "indicates an intent to subvert the negotiating process or is merely a
legitimate position adamantly maintained." (Oakland Unified School District (1982) PERB
Decision No. 275; Placentia Fire Fighters, supra, 57 Cal.App.3d 9, 25.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude evidences a failure
of
the duty to bargain because it amounts to merely going through
F.2d	the motions
of
negotiations. (General Electric
Co.
(1964) 150 NLRB 192, 194, enf. 418
736.) Recalcitrance in the scheduling of meetings is evidence of manipulation to delay and
obstruct a timely agreement. (Oakland Unified School District (1983) PERB Decision No.
326.) Dilatory and evasive tactics including canceling meetings or failing to prepare for
meetings is evidence of bad faith. 	(Ibid.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence of
an unwillingness to engage in a give
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)

SF-CE-610-M
April 16, 2009
Page 3
and-take. (State
of
California (Department
of
Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia
of
surface bargaining include: negotiator's lack
of
authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143.); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134.); and reneging on tentative
agreements the parties already have made (Charter Oak Unified School District (1991)
PERB
Decision No. 873; Stockton Unified School District, supra; Placerville Union School District
(1978) PERB Decision No. 69.).
It is clear, however, that while a party may not merely go through the motions, it may lawfully
maintain an adamant position on any issue. Adamant insistence on a bargaining position is not
necessarily refusal to bargain in good faith. (Placentia Fire Fighters, supra, 57 Cal.App.3d 9,
25; Oakland Unified School District, supra, PERB Decision No. 275.) "The obligation
of
the
employer to bargain in good faith does not require the yielding
of
positions fairly maintained."
(NLRB
v.
Herman Sausage
Co.
(5th Cir. 1960) 275 F.2d 229.)
The Union alleges that the City engaged in bad faith bargaining by making a single regressive
proposal. Specifically, the Union alleges that in June 2008, the City proposed extending
the
MOU-and
freezing
wages-
for 12 months, from June 2009 through June 2010. 	The Union
alleges it "agreed in principle" with that proposal. 	Subsequently, in November 2008,
the
City
notified the Union that it wanted to negotiate a successor labor agreement and proposed
freezing wages for up to 18 months, from June 2009 through December 2010, with the
last
six
months
of
that period subject to a "me-too" clause. Thus, the Union argues, the City replaced
its original proposal with a different proposal that would freeze wages
of
its members for a
longer period
of
time and therefore the second proposal is viewed by the Union as regressive.4
Regressive bargaining techniques may be an indicia
of
bad faith bargaining. (Chino Valley
Unified School District (1999) PERB Decision No. 1326.) However, even
if
the 18-month
wage freeze proposal was a regressive proposal, the Board has held that only one indicator
of
bad faith bargaining is insufficient to demonstrate a prima facie case
of
unlawful conduct.
(Ibid.) The Union claims that the City also "compounded the pressure on the Charging Party"
by requesting appointment
of
a neutral arbitrator to the arbitration panel5 at the end
of
November 2008, when the panel did not have to be chosen until January 20, 2009. However,
The City alleges in its position statement that the 18-month proposal was made in
June 2008 and that it believed the Union agreed to it. However, at this stage
of
the
proceedings, PERB cannot resolve factual disputes and must accept Charging Party's facts as
true. (UPTE, CWA Local 9119 (Crisosto) (2006) PERB Decision No. 1811-H; Golden Plains
Unified School District (2002) PERB Decision No. 1489.)
5 Selection of arbitrators for purposes of City impasse proceedings is governed by City
Charge section A8.409-4.

SF-CE-610-M
April 16, 2009
Page 4
the Union does not allege any facts to show that the City's desire to select an arbitration panel
under the terms
of
the City Charter thwarted negotiations or constitutes bad faith bargaining.
The Union does not allege any other indicia
of
bad faith, nor does it describe the overall course
of
bargaining in any detail. The Union, therefore, does not allege facts sufficient to establish
that the totality
of
the City's conduct was intended to subvert the negotiating process or that it
evidences subjective bad faith.
Violation
of
Local Rule
Although Charging Party alleges that the City has violated two provisions
of
the City Charter
(sections A8.409-e and AS.409-4), it does not allege any facts demonstrating such a violation.
Charging Party does not allege facts concerning specific language
of
the Charter sections that
may
have been violated, nor does it allege that the Charter provisions themselves are
unreasonable local rules. (See, e.g., City & County
of
San Francisco (2007) PERB Decision
No. 1890-M; City
of
San Rafael (2004) PERB Decision No. 1698-M.) Accordingly, to
the
extent that Charging Party alleges that the City's acts constitute a violation
oflocal
rules,
or
that the City's rules are unreasonable, it does not allege facts sufficient to state a prima facie
case.
For these reasons the charge, as presently written, does not state a prima facie case.
	If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should
be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand comer
of
the charge form. 	The amended charge
must
be
served on the Respondent's representative and the original proof
of
service must be filed with
PERB. If an amended charge
or
withdrawal is not filed on or before April 24, 2009,6
PERB
will dismiss your charge.
	If
you have any questions, please call me at the above telephone
number.
.,	
s~
Latia
Davis
R/gional Attorney
LD
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)