County of Sonoma (PERB 2100M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SONOMA COUNTY LAW ENFORCEMENT
ASSOCIATION,
Charging Party, 	Case No. SF-CE-523-M
v . 	PERB Decision No. 2100-M
February 25, 2010	COUNTY OF SONOMA,
Respondent.
Appearances: Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer by Kathleen N.
Mastagni, Attorney, for Sonoma County Law Enforcement Association; Renne Sloan
Holtzman Sakai by Timothy G. Yeung and Genevieve Ng, Attorneys, for County of Sonoma.
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both the Sonoma County Law Enforcement
Association (SCLEA) and the County of Sonoma (County) to the proposed decision of an
administrative law judge (ALJ). The complaint alleged that the County violated the Meyers-
Milias-Brown Act (MMBA)' by: (1) unilaterally implementing its last, best and final offer
prior to the completion of impasse procedures; (2) unilaterally implementing terms and
conditions of employment not reasonably contemplated within the parties' pre-impasse
negotiations; and (3) unilaterally imposing a waiver of SCLEA's right to negotiate health
benefit changes for the upcoming year.
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SONOMA COUNTY LAW ENFORCEMENT
ASSOCIATION,
Charging Party,
V.
COUNTY OF SONOMA,
Respondent.
Case No. SF-CE-523-M
PERB Decision No. 2100-M
February 25, 2010
Appearances: Mastagni, Holstedt, Amick, Miller, Johnsen & Uhrhammer by Kathleen N.
Mastagni, Attorney, for Sonoma County Law Enforcement Association; Renne Sloan
Holtzman Sakai by Timothy G. Yeung and Genevieve Ng, Attorneys, for County of Sonoma.
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both the Sonoma County Law Enforcement
Association (SCLEA) and the County of Sonoma (County) to the proposed decision of an
administrative law judge (ALJ). The complaint alleged that the County violated the Meyers-
Milias-Brown Act (MMBA) 1 by: (1) unilaterally implementing its last, best and final offer
prior to the completion of impasse procedures; (2) unilaterally implementing terms and
conditions of employment not reasonably contemplated within the parties' pre-impasse
negotiations; and (3) unilaterally imposing a waiver of SC LEA' s right to negotiate health
benefit changes for the upcoming year.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

The ALJ found that the County violated MMBA section 3505.4" by refusing to
participate in statutorily-mandated interest arbitration and unilaterally implementing terms and
conditions as to those law enforcement employees who are entitled to interest arbitration, and
thereby also denied SCLEA its right to represent bargaining unit employees, in violation of
MMBA section 3505." The ALJ dismissed the remaining allegations that the County violated
MMBA by: (1) unilaterally implementing terms and conditions not reasonably contemplated
within its last, best and final offer; and (2) depriving SCLEA of the right to negotiate on a
yearly basis.
MMBA section 3505.4 states:
If after meeting and conferring in good faith, an impasse has been
reached between the public agency and the recognized employee
organization, and impasse procedures, where applicable, have
been exhausted, a public agency that is not required to proceed to
interest arbitration may implement its last, best, and final offer,
but shall not implement a memorandum of understanding. The
unilateral implementation of a public agency's last, best, and final
offer shall not deprive a recognized employee organization of the
right each year to meet and confer on matters within the scope of
representation, whether or not those matters are included in the
unilateral implementation, prior to the adoption by the public
agency of its annual budget, or as otherwise required by law.
3 The ALJ found that the County was not required to submit to interest arbitration with
respect to employees not covered by MMBA section 3505.4.
2
The ALJ found that the County violated MMBA section 3505.42 by refusing to
participate in statutorily-mandated interest arbitration and unilaterally implementing terms and
conditions as to those law enforcement employees who are entitled to interest arbitration, and
thereby also denied SCLEA its right to represent bargaining unit employees, in violation
of
MMBA section 3505.3 The ALJ dismissed the remaining allegations that the County violated
MMBA by: (1) unilaterally implementing terms and conditions not reasonably contemplated
within its last, best and final offer; and (2) depriving SCLEA
of
the right to negotiate
on
a
yearly basis.
The County appeals	The County appeals only from that portion of the ALJ's proposed decision that found	only from that portion
of
the ALJ' s proposed decision that found
that it was required to submit to interest arbitration with respect to certain law enforcement	that it was required to submit to interest arbitration with respect to certain law enforcement
employees, arguing that the governing statute is unconstitutional. SCLEA	employees, arguing that the governing statute is unconstitutional. SCLEA appeals from the	appeals from the
findings that: (
1)
the County was not required to submit to interest arbitration	findings that: (1) the County was not required to submit to interest arbitration as to all	as to all
2 MMBA section 3505.4 states:
If
after meeting and conferring in good faith, an impasse has been
reached between the public agency and the recognized employee
organization, and impasse procedures, where applicable, have
been exhausted, a public agency that is not required to proceed to
interest arbitration may implement its last, best, and final offer,
but shall not implement a memorandum
of
understanding. The
unilateral implementation
of
a public agency's last, best, and final
offer shall not deprive a recognized employee organization
of
the
right each year to meet and confer on matters within the scope
of
representation, whether or not those matters are included in the
unilateral implementation, prior to the adoption by the public
agency of its annual budget, or as otherwise required by law.
3 The ALJ found that the County was not required to submit to interest arbitration with
respect to employees not covered by MMBA section 3505.4.
2

employees; and (2) the County unilaterally implemented terms and conditions reasonably
contemplated within its last, best and final offer.*
The Board has reviewed the proposed decision and the record in light of the parties'
exceptions and responses thereto, and the relevant law. Based on this review, the Board
reverses the proposed decision in part and affirms it in part for the reasons discussed below.
BACKGROUNDS
The County is a public agency within the meaning of MMBA section 3501(c). SCLEA
is an employee organization within the meaning of Section 3501(a).
SCLEA exclusively represents four bargaining units composed of sworn and non-sworn
law enforcement employees. The units include classifications such as correctional officers,
probation officers, district attorney investigators, welfare fraud investigators, park rangers, fire
inspectors, communications dispatchers, and residential care counselors.
SCLEA and the County were parties to a memorandum of understanding (MOU)
covering all four units, effective March 4, 2003 through June 18, 2007. The parties began
negotiations for a single successor agreement in February 2007. The parties agreed to a
number of ground rules: tentative agreements were to be signed by the teams' principals, but
the principals lacked authority to enter into such agreements without first consulting with the
team. It was understood that if neither side made a proposal as to an article in the MOU, the
status quo would remain. The parties also agreed that all proposals and counterproposals
would be presumed to be rejected unless specifically accepted by the other party.
# SCLEA did not except to the dismissal of the allegation that the County denied
SCLEA its statutory right to bargain on a yearly basis. Accordingly, the ALJ's determination
on this issue is final. (PERB Reg. 32300(c); PERB regs. are codified at Cal. Code Regs., tit. 8,
sec. 3100 et seq.)
The Board adopts the ALJ's findings of fact to the extent set forth herein.
3
employees; and (2) the County unilaterally implemented terms and conditions reasonably
contemplated within its last, best and final offer.4
The Board has reviewed the proposed decision and the record in light of the parties'
exceptions and responses thereto, and the relevant law. Based on this review, the Board
reverses the proposed decision in part and affirms it in part for the reasons discussed below.
BACKGROUND5
The County is a public agency within the meaning of MMBA section 3501(c). SCLEA
is an employee organization within the meaning of Section 350l(a).
SCLEA exclusively represents four bargaining units composed of sworn and non-sworn
law enforcement employees. The units include classifications such as correctional officers,
probation officers, district attorney investigators, welfare fraud investigators, park rangers, fire
inspectors, communications dispatchers, and residential care counselors.
SCLEA and the County were parties to a memorandum of understanding (MOU)
covering all four units, effective March 4, 2003 through June 18, 2007. The parties began
negotiations for a single successor agreement in February 2007. The parties agreed to a
number of ground rules: tentative agreements were to be signed by the teams' principals, but
the principals lacked authority to enter into such agreements without first consulting with the
team. It was understood that if neither side made a proposal as to an article in the MOU, the
status quo would remain. The parties also agreed that all proposals and counterproposals
would be presumed to be rejected unless specifically accepted by the other party.
4 SC LEA did not except to the dismissal of the allegation that the County denied
SCLEA its statutory right to bargain on a yearly basis. Accordingly, the ALJ's determination
on this issue is final. (PERB Reg. 32300(c); PERB regs. are codified at Cal. Code Regs., tit. 8,
sec. 3100 et seq.)
5 The Board adopts the ALJ's findings of fact to the extent set forth herein.
3

4
During the Spring of 2007, the parties engaged in approximately 13 bargaining	During the Spring of 2007, the parties engaged in approximately 13 bargaining
sessions. The parties agreed, at least in principle, to carry over many of the provisions of the	sessions. The parties agreed, at least in principle, to carry over many of the provisions of the
existing MOU without change. The negotiations revolved primarily around the County's	existing MOU without change. The negotiations revolved primarily around the County's
proposals offering a cost-of-living adjustment (COLA) for the entire unit, equity adjustments	proposals offering a cost-of-living adjustment (COLA) for the entire unit, equity adjustments
for particular positions, and changes in health and welfare benefits.	for particular positions, and changes in health and welfare benefits.
At the May 16, 2007 bargaining session, the County's lead negotiator, Kenneth Couch	At the May 16, 2007 bargaining session, the County's lead negotiator, Kenneth Couch
(Couch), provided SCLEA with a proposal on revisions to Article 18 of the MOU covering	(Couch), provided SCLEA with a proposal on revisions to Article 18 of the MOU covering
health and welfare benefits. In the past, the County had maintained a practice of contributing	health and welfare benefits. In the past, the County had maintained a practice of contributing
the same percentage of the monthly premium costs, regardless of the cost of the premium(s)	the same percentage of the monthly premium costs, regardless of the cost of the premium(s)
associated	associated with the selected health plan, for the employee (alone, with one dependent, or two	with the selected health plan, for the employee (alone, with one dependent, or two
or more dependents). The County proposed restricting that percentage to only the lowest-cost	or more dependents). The County proposed restricting that percentage to only the lowest-cost
plan, beginning with the 2008-2009 plan year. In what the parties termed the "85-Y plan," the	plan, beginning with the 2008-2009 plan year. In what the parties termed the "85-Y plan," the.
County's contribution dollar amount would be set at 85 percent of the lowest cost plan. For	County's contribution dollar amount would be set at 85 percent of the lowest cost plan. For
any higher cost plan, a "Y-rating" would freeze the County's contribution dollar amount at theany higher cost plan, a "Y-rating" would freeze the County's contribution dollar amount at the
2007-2008 contribution dollar amount for those electing the more expensive plans, until the	2007-2008 contribution dollar amount for those electing the more expensive plans, until the
contribution dollar amount for the lowest-cost plan rose to the dollar amount of the higher-cost	contribution dollar amount for the lowest-cost plan rose to the dollar amount of the higher-cost
plan. Thereafter, any difference above the lowest-cost plan would be picked up by the	plan. Thereafter, any difference above the lowest-cost plan would be picked up by the
employee. Having already adopted these provisions for its unrepresented employees, the	employee. Having already adopted these provisions for its unrepresented employees, the
County was interested in having these provisions apply to SCLEA's active bargaining unit	County was interested in having these provisions apply to SCLEA's active bargaining unit
employees as well as its future retirees, who received this benefit through the MOU. 	The	employees as well as its future retirees, who received this benefit through the MOU. The
County also offered an across-the-board COLA of 3.25 percent and, as a quid pro quo for	County also offered an across-the-board COLA of 3.25 percent and, as a quid pro quo for
acceptance of the 85-Y plan, equity adjustments to bring specified classifications to	acceptance of the 85-Y plan, equity adjustments to bring specified classifications to
100 percent of market wages, to be implemented in two steps.	100 percent of market wages, to be implemented in two steps.
4

5
The discussions during the May 16, 2007 bargaining session focused primarily on the	The discussions during the May 16, 2007 bargaining session focused primarily on the
COLA, equity adjustments, and the 85-Y health plan issues set forth in Article 18,	COLA, equity adjustments, and the 85-Y health plan issues set forth in Article 18,
sections 18.1, 18.2, and 18.3 of the MOU. The parties also discussed changes to future retiree	sections 18.1, 18.2, and 18.3
of
the MOU. The parties also discussed changes to future retiree
health premiums,	health premiums, unpaid medical and pregnancy leaves, and long-term disability. During its	unpaid medical and pregnancy leaves, and long-term disability. During its
review
of
the proposal, the SCLEA	review of the proposal, the SCLEA representatives noticed that three pages of the Article 18	representatives noticed that three pages
of
the Article
18
text appeared to be missing and notified the County
of
the	text appeared to be missing and notified the County of the omission. Sections 18.1, 18.2 and	omission. Sections 18.1, 18.2 and
18.3	18.3 were not among the missing sections, and the parties continued to negotiate over those	were not among the missing sections, and the parties continued to negotiate over those
sections.	sections.
Although SCLEA requested that	Although SCLEA requested that the County provide all new proposals in "legislative	the County provide all new proposals in "legislative
format," showing changes in strikeout and underlined text, the County determined it would beformat," showing changes in strikeout and underlined text, the County determined it would be
unfeasible to do so for Article 18, because the changes were numerous and were not of the type	unfeasible to do so for Article 18, because the changes were numerous and were not
of
the type
that lent itself to that type
of
formatting. Numerous sections were renumbered, previous whole	that lent itself to that type of formatting. Numerous sections were renumbered, previous whole
sections split,	sections split, and language was moved.	and language was moved.
At the end of the May 16, 2007 session, SCLEA asserted that the parties were at	At the end
of
the May 16, 2007 session, SCLEA asserted that the parties were at
impasse. The parties used a previously scheduled negotiation	impasse. The parties used a previously scheduled negotiation session on May 31, 2007 to	session on May 31, 2007 to
identify issues for mediation, and formally declared impasse on that date. The County's local	identify issues for mediation, and formally declared impasse on that date. The County's local
employee-relations ordinance (ERO) provides that mediation is the only mandatory impasse	employee-relations ordinance (ERO) provides that mediation is the only mandatory impasse
procedure, with	procedure, with factfinding optional. If factfinding is not undertaken, the County's negotiator	factfinding optional.
	If
factfinding is not undertaken, the County's negotiator
may present the employer's last, best and final offer to the governing board for	may present the employer's last, best and final offer to the governing board for
implementation. The ordinance makes no mention of interest arbitration proceedings as set	implementation. The ordinance makes no mention of interest arbitration proceedings as set
forth in title 9.5
of
the Code
of
Civil Procedure. (Code Civ. Proc.,§ 1299 et	forth in title 9.5 of the Code of Civil Procedure. (Code Civ. Proc., $ 1299 et seq.; Stats. 2000,	seq.; Stats. 2000,
ch. 906	ch. 906 ["Arbitration of Firefighter and Law Enforcement Officer Disputes"].)	["Arbitration of Firefighter and Law Enforcement Officer Disputes"].)
At the first mediation session	At the first mediation session on July 11, 2007, SCLEA presented a proposal, to which	on July 11, 2007, SCLEA presented a proposal, to which
the County did not respond formally at that time. On July 17, 2007, Couch and	the County did not respond formally at that time. On July 17, 2007, Couch and SCLEA's chief	SCLEA's chief
5

6
negotiator, Shaun DuFosee (DuFosee), met at a restaurant where Couch delivered the County's	negotiator, Shaun DuFosee (DuFosee), met at a restaurant where Couch delivered the County's
counter-proposal. The County's proposal consisted of two pages and stated:	counter-proposal. The County's proposal consisted of two pages and stated:
Acceptance by the SCLEA results in settlement of all issues	Acceptance by the SCLEA results in settlement of all issues
raised by the parties in these negotiations for a successor	raised by the parties in these negotiations for a successor
Memorandum Of Understanding (MOU). Tentative agreements	Memorandum Of Understanding (MOU). Tentative agreements
(T/As) signed by the parties on March 08, 2007, and the terms	(T/As) signed by the parties on March 08, 2007, and the terms
and conditions of this counter proposal will comprise the only	and conditions of this counter proposal will comprise the only
changes to be incorporated in the successor MOU between the	changes to be incorporated in the successor MOU between the
parties. All articles not previously tentatively agreed to, or	parties. All articles not previously tentatively agreed to, or
included in this proposal as detailed below, shall remain	included in this proposal as detailed below, shall remain
unchanged from the current MOU.	unchanged from the current MOU.
The two-page document called for a one-year term (June 19, 2007 through June 16,	The two-page document called for a one-year term (June 19, 2007 through June 16,
2008), the COLA, the equity adjustments, and the same 85-Y plan that had been included in	2008), the COLA, the equity adjustments, and the same 85-Y plan that had been included in
the May 16, 2007 proposal. The proposal further stated that the County would implement the	the May 16, 2007 proposal. The proposal further stated that the County would implement the
85-Y plan as soon as possible, including plan design changes implemented on April 10, 2007	85-Y plan as soon as possible, including plan design changes implemented on April 10, 2007
for both active and retired bargaining members, and that existing language concerning the	for both active and retired bargaining members, and that existing language concerning the
retiree/active employee health insurance link would remain unchanged. The proposal further	retiree/active employee health insurance link would remain unchanged. The proposal further
stated that if it was not accepted in writing by July 23, 2007, the offer would be withdrawn in	stated that if it was not accepted in writing by July 23, 2007, the offer would be withdrawn in
its entirety. DuFosee testified that he did not consider this limitation to have any practical	its entirety. DuFosee testified that he did not consider this limitation to have any practical
effect, as he believed the July 17, 2007 proposal did not materially differ from the County's	effect, as he believed the July 17, 2007 proposal did not materially differ from the County's
May 16, 2007 proposal.	May 16, 2007 proposal.
6
Couch testified that, as he was presenting the proposal to DuFosee, he realized that the	Couch testified that, as he was presenting the proposal to DuFosee, he realized that the
version of Article 18 that was attached to the proposal was not the correct one, so he removed	version of Article 18 that was attached to the proposal was not the correct one, so he removed
it from the rest of the document and promised to e-mail the correct version to DuFosee	it from the rest of the document and promised to e-mail the correct version to DuFosee
following the meeting.	following the meeting.
Couch testified that on July 18, 2007, he e-mailed DuFosee the corrected version of the	Couch testified that on July 18, 2007, he e-mailed DuFosee the corrected version of the
Article 18 proposal both at SCLEA and at work. Neither message was returned as	Article 18 proposal both at SCLEA and at work. Neither message was returned as
undeliverable. Couch's testimony was corroborated by a copy of the e-mail transmission dated	undeliverable. Couch's testimony was corroborated by a copy of the e-mail transmission dated

proposal as well.
7
July 18, 2007 stating that the settlement offer was attached, including the correct Article 18	July 18, 2007 stating that the settlement offer was attached, including the correct Article 18
proposal. DuFosee denied both that Couch removed a version of Article 18 from the July 17,	proposal. DuFosee denied both that Couch removed a version of Article 18 from the July 17,
2007 proposal during their meeting or that he received the July 18, 2007, e-mail transmission	2007 proposal during their meeting or that he received the July 18, 2007, e-mail transmission
at either address. He asserted he sometimes had difficulty retrieving e-mails at one of the	at either address. He asserted he sometimes had difficulty retrieving e-mails at one of the
addresses. Given Couch's credible testimony that he sent the e-mails and that the e-mail	addresses. Given Couch's credible testimony that he sent the e-mails and that the e-mail
transmission was not returned as undeliverable, we adopt the ALJ's credibility determination	transmission was not returned as undeliverable, we adopt the ALJ's credibility determination
that, on July 18, 2007, Couch e-mailed DuFosee a complete copy of proposed Article 18 and	that, on July 18, 2007, Couch e-mailed DuFosee a complete copy of proposed Article 18 and
that DuFosee received it.	that DuFosee received it.
The language of Article 18 included in the July 18 transmission is identical to that set	The language of Article 18 included in the July 18 transmission is identical to that set
forth in the May 16, 2007 proposal with respect to Sections 18.1, 18.2 and 18.3. The cover	forth in the May 16, 2007 proposal with respect to Sections 18.1, 18.2 and 18.3. The cover
e-mail states that current language contained in Article 18.16 would replace the County's	e-mail states that current language contained in Article 18.16 would replace the County's
proposed language in Sections 18.4 and 18.5 concerning retiree health insurance contributions.	proposed language in Sections 18.4 and 18.5 concerning retiree health insurance contributions.
The July 18, 2007 transmission also appeared to contain the missing pages from the May 16,	The July 18, 2007 transmission also appeared to contain the missing pages from the May 16,
2007 proposal concerning, inter alia, dental benefits, long-term disability, and unpaid	2007 proposal concerning, inter alia, dental benefits, long-term disability, and unpaid
medical/pregnancy disability leave. SCLEA rejected the proposal.	medical/pregnancy disability leave. SCLEA rejected the proposal.
At a second mediation session on August 17, 2007, the County presented SCLEA with	At a second mediation session on August 17, 2007, the County presented SCLEA with
a revised offer, consisting of a two-page summary of the County's last offer on the three major	a revised offer, consisting of a two-page summary of the County's last offer on the three major
issues in dispute: the 85-Y plan, COLAs, and equity adjustments. Couch informed SCLEA	issues in dispute: the 85-Y plan, COLAs, and equity adjustments. Couch informed SCLEA
that Article 18 was still part of the County's last offer and had not changed since the May 16,	that Article 18 was still part of the County's last offer and had not changed since the May 16,
2007 proposal; therefore, it was not attached to the August 17, 2007 offer. The August 17,	2007 proposal; therefore, it was not attached to the August 17, 2007 offer. The August 17,
2007 summary was substantially the same as the July 17, 2007 offer, but changed the timing of	2007 summary was substantially the same as the July 17, 2007 offer, but changed the timing of
the second equity adjustment due to the passage of time during bargaining. The SCLEA team	the second equity adjustment due to the passage of time during bargaining. The SCLEA team
took this written proposal directly to the membership for a vote. The membership rejected this	took this written proposal directly to the membership for a vote. The membership rejected this
proposal as well.
7

replaced by Interim Labor Relations Manager David Mackowiak (Mackowiak).
8
After meeting again with SCLEA representatives in an effort to answer questions and	After meeting again with SCLEA representatives in an effort to answer questions and
come to a resolution on August 30, 2007, the County sent a letter to all bargaining unit	come to a resolution on August 30, 2007, the County sent a letter to all bargaining unit
employees explaining the County's August 17, 2007 offer and including a copy of the	employees explaining the County's August 17, 2007 offer and including a copy of the
August 17, 2007 two-page proposal.	August 17, 2007 two-page proposal.
A final, unsuccessful, mediation session was held on November 13, 2007. On	A final, unsuccessful, mediation session was held on November 13, 2007. On
November 19, 2007, DuFosee submitted a request to the chair of the County's governing board	November 19, 2007, DuFosee submitted a request to the chair of the County's governing board
that the matter be submitted for interest arbitration pursuant to Code of Civil Procedure	that the matter be submitted for interest arbitration pursuant to Code of Civil Procedure
section 1299.4. The County refused, asserting that Section 1299.4 was unconstitutional and	section 1299.4. The County refused, asserting that Section 1299.4 was unconstitutional and
that many of the bargaining unit classifications were not covered by that statute in any event.	that many of the bargaining unit classifications were not covered by that statute in any event.
By letter dated December 20, 2007 to the County, SCLEA requested the opening of	By letter dated December 20, 2007 to the County, SCLEA requested the opening of
negotiations for a successor memorandum, while acknowledging the ongoing bargaining	negotiations for a successor memorandum, while acknowledging the ongoing bargaining
impasse. By this time, DuFosee's term as president had expired and he was replaced by	impasse. By this time, DuFosee's term as president had expired and he was replaced by
Thomas Gordon (Gordon), who had been a member of the bargaining team throughout the	Thomas Gordon (Gordon), who had been a member of the bargaining team throughout the
negotiations. In addition, Couch had ceased employment with the County and had been	negotiations. In addition, Couch had ceased employment with the County and had been
replaced by Interim Labor Relations Manager David Mackowiak (Mackowiak).
8
In late December 2007, Mackowiak attempted unsuccessfully to contact Gordon by	In late December 2007, Mackowiak attempted unsuccessfully to contact Gordon by
telephone to inform him that the County intended to present an implementation resolution to	telephone to inform him that the County intended to present an implementation resolution to
the governing board at its January 8, 2008 meeting. On December 31, 2007, the County's	the governing board at its January 8, 2008 meeting. On December 31, 2007, the County's
human resources director, Ann Goodrich, sent Gordon and a representative of the law firm	human resources director, Ann Goodrich, sent Gordon and a representative of the law firm
representing SCLEA an e-mail notifying them that the County had submitted an agenda item to	representing SCLEA an e-mail notifying them that the County had submitted an agenda item to
the County's governing board to implement the County's last offer, and promised to send a	the County's governing board to implement the County's last offer, and promised to send a
copy of the agenda item on January 2, 2008. Gordon was out of town on vacation in late	copy of the agenda item on January 2, 2008. Gordon was out of town on vacation in late
December	December 2007, but he acknowledged that he did receive the County's e-mail on January 2,	2007, but he acknowledged that he did receive the County's e-mail on January 2,
2008, with an attachment containing the finalized board agenda item. The attachment included	2008, with an attachment containing the finalized board agenda item. The attachment included

9
the language for Article 18 that was substantially the same as the version Couch sent to	the language for Article 18 that was substantially the same as the version Couch sent to
DuFosee on July 18, 2007. Gordon did not respond to Mackowiak or communicate any	DuFosee on July 18, 2007. Gordon did not respond to Mackowiak or communicate any
concerns to the County about the proposed implementation prior to January 8, 2008.	concerns to the County about the proposed implementation prior to January 8, 2008.
DuFosee was out of town on vacation between December 26, 2007 and January 15,	DuFosee was out of town on vacation between December 26, 2007 and January 15,
2008. He received an e-mail that included the implemented terms, which he reviewed after his	2008. He received an e-mail that included the implemented terms, which he reviewed after his
return. DuFosee testified that he never conducted a side-by-side comparison of the existing	return. DuFosee testified that he never conducted a side-by-side comparison of the existing
Article 18 and the County's new proposal, because he felt it was confusing.	Article 18 and the County's new proposal, because he felt it was confusing.
The staff recommendation called for implementation of the 3.25 percent COLA,	The staff recommendation called for implementation of the 3.25 percent COLA,
effective January 15, 2008, together with the equity adjustments for identified classifications,	effective January 15, 2008, together with the equity adjustments for identified classifications,
one-half to be provided immediately and the remainder on July 15, 2008. In the summary	one-half to be provided immediately and the remainder on July 15, 2008. In the summary
section, the staff report described the health benefit changes as including changes in co-pays	section, the staff report described the health benefit changes as including changes in co-pays
and deductibles for all three medical plans that would take effect "as soon as practical," and	and deductibles for all three medical plans that would take effect "as soon as practical," and
that changes in the amount of County contributions to premiums under its 85-Y proposal	that changes in the amount of County contributions to premiums under its 85-Y proposal
would take effect beginning with the 2008-2009 health plan year. 	The recommendation noted	would take effect beginning with the 2008-2009 health plan year. The recommendation noted
that the implemented terms would remain in effect through June 15, 2008, "the start of the	that the implemented terms would remain in effect through June 15, 2008, "the start of the
normal contract cycle for this unit."	normal contract cycle for this unit."
Gordon testified that he did not try to compare the proposed Article 18 language with	Gordon testified that he did not try to compare the proposed Article 18 language with
the existing contract language because he was never confident he could ascertain all of the	the existing contract language because he was never confident he could ascertain all of the
differences.	differences.
Gordon appeared at the January 8, 2008 governing board meeting to object to the	Gordon appeared at the January 8, 2008 governing board meeting to object to the
implementation proposal. Among his comments he asserted:	implementation proposal. Among his comments he asserted:
Finally, SCLEA has only had a brief time to review the text of	Finally, SCLEA has only had a brief time to review the text of
this resolution. It appears to us that some changes may have been	this resolution. It appears to us that some changes may have been
made	made after the date for final submission of proposals and/or after	after the date for final submission of proposals and/or after
the County submitted its last, best, and final offer. We will be	the County submitted its last, best, and final offer. We will be
researching this issue further and will respond accordingly.	researching this issue further and will respond accordingly.
9

Mackowiak approached Gordon after the meeting to seek clarification about SCLEA's	Mackowiak approached Gordon after the meeting to seek clarification about SCLEA's
concerns. Gordon replied that	concerns. Gordon replied that he could not tell Mackowiak what the issues were, claiming he	he could not tell Mackowiak what the issues were, claiming he
had not had sufficient time to review it. After Mackowiak scheduled a meeting with Gordon	had not had sufficient time to review it. After Mackowiak scheduled a meeting with Gordon
for January 18, 2008 to identify and address the purported errors, Gordon cancelled the	for January 18, 2008 to identify and address the purported errors, Gordon cancelled the
meeting. Mackowiak tried unsuccessfully to reschedule the meeting with Gordon.	meeting. Mackowiak tried unsuccessfully to reschedule the meeting with Gordon.
DISCUSSION
Request for Interest Arbitration
The County asserts that it was not required to submit to the binding interest arbitration
provisions of Code of Civil Procedure section 1299 et seq. prior to implementing its last, best
and final offer because that statute is unconstitutional. In County of Riverside v. Superior
10
Sometime after the January	Sometime after the January 8, 2008 board action, the County reviewed the agenda item	
8, 2008 board action, the County reviewed the agenda item
and discovered certain errors in its submission to the board. Therefore, it submitted an agenda	and discovered certain errors in its submission to the board. Therefore, it submitted an agenda
item to the board requesting an amendment to the January 8, 2008 resolution. The written	item to the board requesting an amendment to the January 8, 2008 resolution. The written
submittal	submittal identified as errors the omission of subdivision (b)(iii) of Section 18.3	identified as errors the omission
of
subdivision (b )(iii)
of
Section 18.3
("Contributions Toward Medical Insurance for Employees"), omissions
of
the proper revisions	("Contributions Toward Medical Insurance for Employees"), omissions of the proper revisions
to Section 18.5 ("Medical Insurance	to Section 18.5 ("Medical Insurance Eligibility & Contributions for Retirees Employed After	Eligibility & Contributions for Retirees Employed After
January
1,
1990"), and designation	January 1, 1990"), and designation of $9.00 per pay period as the employee contribution to	of$9.00 per pay period as the employee contribution to
dental insurance, when it should have been $11.00. 	The County notified	dental insurance, when it should have been $11.00. The County notified SCLEA of the	SCLEA
of
the
proposed changes. SCLEA did not respond to the notification. The board adopted the	proposed changes. SCLEA did not respond to the notification. The board adopted the
recommended amendment at its January 29, 2008 meeting.	recommended amendment at its January 29, 2008 meeting.
In February 2008, the County held a special open enrollment period to allow bargaining	In February 2008, the County held a special open enrollment period to allow bargaining
unit members the opportunity to select other health plan choices in response to the plan design	unit members the opportunity to select other health plan choices in response to the plan design
changes	changes for the current year. In May 2008, the County held its customary open enrollment	for the current year. In May 2008, the County held its customary open enrollment
period prior to the 2008-2009 health plan year.	period prior to the 2008-2009 health plan year.
DISCUSSION
10
Request for Interest Arbitration
The County asserts that it was not required to submit to the binding interest arbitration
provisions of Code of Civil Procedure section 1299 et seq. prior to implementing its last, best
and final offer because that statute is unconstitutional. In County
of
Riverside
v.
Superior

(2009) 173 Cal.App.4th 322, 344, 346-347, review denied.)'
Senate Bill 402, entitled "Arbitration of Firefighter and Law Enforcement Officer
Labor Disputes," authorized public safety employee unions to declare an impasse in
negotiations and require a local public agency to submit unresolved economic issues to binding
interest arbitration.
"Given that the judicial proceedings are complete, we deny as moot the County's
motion to abate and/or sever the allegation that the County unlawfully refused to submit to
interest arbitration.
11
Court (2003) 30 Cal.4th 278 (Riverside), the Supreme Court held that a prior version of	Court (2003) 30 Cal.4th 278 (Riverside), the Supreme Court held that a prior version of
section 1299 et seq. (SB 402, Stats. 2000, ch. 906, $ 2) violated Article XI, section 1,	section 1299 et seq. (SB 402, Stats. 2000, ch. 906, § 2) violated Article XI, section 1,
subdivision (b) and section 11, subdivision of (a), the California Constitution by delegating to	subdivision (b) and section 11, subdivision of (a), the California Constitution by delegating to
a private body the power to interfere with county financial affairs and to perform a municipal	a private body the power to interfere with county financial affairs and to perform a municipal
function. (Riverside, at p. 282.)" In response to the court's decision in Riverside, the	function. (Riverside, at p. 282.)6 In response to the court's decision in Riverside, the
Legislature adopted SB 440 (Stats. 2003, ch. 877), which amended Section 1299.7 to provide	Legislature adopted SB 440 (Stats. 2003, ch. 877), which amended Section 1299.7 to provide
that	that the arbitrator's decision would be binding unless the county's governing body, by	the arbitrator's decision would be binding unless the county's governing body, by
unanimous vote, rejects the arbitration.	unanimous vote, rejects the arbitration.
While this matter was pending before PERB, the County filed a judicial action	While this matter was pending before PERB, the County filed a judicial action
challenging the constitutionality of SB 440. On April 24, 2009, the First District Court of	challenging the constitutionality of SB 440. On April 24, 2009, the First District Court of
Appeal	Appeal determined that the amendments did not cure the constitutional violation because:	determined that the amendments did not cure the constitutional violation because:
(a) it merely gave the county veto power over the arbitrator's decision but did not allow the	(a) it merely gave the county veto power over the arbitrator's decision but did not allow the
county	county to "provide for" the compensation of county employees; and (b) empowered a minority	to "provide for" the compensation of county employees; and (b) empowered a minority
of the governing board, via the requirement of unanimity, to make the arbitrator's decision	of the governing board, via the requirement of unanimity, to make the arbitrator's decision
binding on the county, even if the majority disagreed. (County of Sonoma v. Superior Court	binding on the county, even if the majority disagreed. (County of Sonoma v. Superior Court
(2009) 173 Cal.App.4th 322, 344, 346-347, review denied.)7
While we have no authority to declare a statute unconstitutional (Cal. Const., art. III,	While we have no authority to declare a statute unconstitutional (Cal. Const., art. III,
§ 3. 5), we are bound by the determination of the court of appeal that Code of Civil Procedure	$ 3.5), we are bound by the determination of the court of appeal that Code of Civil Procedure
section 1299 et seq., the interest arbitration statute at issue in this case, constitutes an unlawful	section 1299 et seq., the interest arbitration statute at issue in this case, constitutes an unlawful
6 Senate Bill 402, entitled "Arbitration of Firefighter and Law Enforcement Officer
Labor Disputes," authorized public safety employee unions to declare an impasse in
negotiations and require a local public agency to submit unresolved economic issues to binding
interest arbitration.
7 Given that the judicial proceedings are complete, we deny as moot the County's
motion to abate and/or sever the allegation that the County unlawfully refused to submit to
interest arbitration.
11

12
delegation of power in violation of Article IX of the Constitution. Accordingly, we reverse the	delegation of power in violation of Article IX of the Constitution. Accordingly, we reverse the
ALJ's	ALJ's decision to the extent that it determined that the County violated the MMBA by refusing	decision to the extent that it determined that the County violated the MMBA by refusing
to submit to interest arbitration prior to implementing its last, best and final offer.	to submit to interest arbitration prior to implementing its last, best and final offer. 8
Implementation of Last, Best and Final Offer	Implementation of Last, Best and Final Offer
PERB has long held that an employer's unilateral change in terms and conditions of	PERB has long held that an employer's unilateral change in terms and conditions of
employment prior to reaching an impasse in negotiations or completion of statutory impasse	employment prior to reaching an impasse in negotiations or completion of statutory impasse
resolution procedures is a per se violation of the statutory duty to bargain in good faith.	resolution procedures is a per se violation of the statutory duty to bargain in good faith.
(Pajaro Valley Unified School District (1978) PERB Decision No. 51; Rowland Unified School	(Pajaro Valley Unified School District (1978) PERB Decision No. 51; Rowland Unified School
District (1994) PERB Decision No. 1053 (Rowland).) Once impasse has been reached and the	District (1994) PERB Decision No. 1053 (Rowland).) Once impasse has been reached and the
parties have completed statutory impasse resolution procedures, the employer may thereafter	parties have completed statutory impasse resolution procedures, the employer may thereafter
implement changes reasonably contemplated within its last, best and final offer. (Rowland;	implement changes reasonably contemplated within its last, best and final offer. (Rowland;
Modesto City Schools (1983) PERB Decision No. 291 (Modesto); Charter Oak Unified School	Modesto City Schools (1983) PERB Decision No. 291 (Modesto); Charter Oak Unified School
District (1991) PERB Decision No. 873 (Charter Oak).) "The employer need not implement	District (1991) PERB Decision No. 873 (Charter Oak).) "The employer need not implement
changes absolutely identical with its last offer on a given issue. However, the unilateral	changes absolutely identical with its last offer on a given issue. However, the unilateral
adoptions must be reasonably comprehended within the preimpasse proposals." (Public	adoptions must be reasonably comprehended within the preimpasse proposals." (Public
Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136	Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d	Cal.App.3d881, 900	881, 900
[citations omitted; emphasis in original].) Thus, PERB has stated, "matters reasonably	[citations omitted; emphasis in original].) Thus, PERB has stated, "matters reasonably
comprehended within pre-impasse negotiations include neither proposals better than the last	comprehended within pre-impasse negotiations include neither proposals better than the last
best offer nor proposals less than the status quo which were not previously discussed at the	best offer nor proposals less than the status quo which were not previously discussed at the
"BBecause	ecause we conclude that the County was not required to submit to interest	we conclude that the County was not required to submit to interest
arbitration, we do not address the issue of whether the interest arbitration procedures of Code	arbitration, we do not address the issue of whether the interest arbitration procedures of Code
of	of Civil Procedure section 1299 et seq. apply to a mixed unit of public safety and non-public	Civil Procedure section 1299 et seq. apply to a mixed unit of public safety and non-public
safety employees.	safety employees.
12

13
table." (Modesto.) PERB will not, however, dissect a package proposal to "separately	table." (Modesto.) PERB will not, however, dissect a package proposal to "separately
compare each provision of the package to prior proposals concerning that provision."	compare each provision of the package to prior proposals concerning that provision."
(Charter Oak.)	(Charter Oak.)
Under the MMBA, a public agency that is not required to proceed to interest arbitration	Under the MMBA, a public agency that is not required to proceed to interest arbitration
may implement its last, best, and final offer. (MMBA, § 3505.4.) The County complied with	may implement its last, best, and final offer. (MMBA, $ 3505.4.) The County complied with
the mandatory impasse procedure specified in the ERO. As discussed above, we have	the mandatory impasse procedure specified in the ERO. As discussed above, we have
concluded that the County was not required to proceed to interest arbitration after impasse	concluded that the County was not required to proceed to interest arbitration after impasse
once it completed the mediation procedures required under the ERO. Therefore, the only	once it completed the mediation procedures required under the ERO. Therefore, the only
remaining question is whether the County unilaterally implemented changes "reasonably	remaining question is whether the County unilaterally implemented changes "reasonably
contemplated" within its pre-impasse proposals.	contemplated" within its pre-impasse proposals.
SCLEA asserts three exceptions to the ALJ's determination that the County did not	SCLEA asserts three exceptions to the ALJ's determination that the County did not
violate the MMBA by unilaterally implementing terms of conditions of employment after	violate the MMBA by unilaterally implementing terms of conditions of employment after
impasse. First, SCLEA excepts to the ALJ's finding that DuFosee received the correct version	impasse. First, SCLEA excepts to the ALJ's finding that DuFosee received the correct version
of Article 18 on July 18, 2007. As discussed above, we find that the record supports the ALJ' s	of Article 18 on July 18, 2007. As discussed above, we find that the record supports the ALJ's
determination that DuFosee received Couch's July 18, 2007 email transmitting Article 18 to	determination that DuFosee received Couch's July 18, 2007 email transmitting Article 18 to
him.	him.
Second, SCLEA excepts to the ALJ's finding that the complete language of Article 18	Second, SCLEA excepts to the ALJ' s finding that the complete language of Article 18
was presented to SCLEA. Third, SCLEA excepts to the ALJ's conclusion of law that the	was presented to SCLEA. Third, SCLEA excepts to the ALJ's conclusion of law that the
entire Article 18 was reasonably comprehended in the County's last, best, and final offer. We	entire Article 18 was reasonably comprehended in the County's last, best, and final offer. We
address these two exceptions together.	address these two exceptions together.
The record reflects that the County provided SCLEA with copies of revised Article 18	The record reflects that the County provided SCLEA with copies of revised Article 18
on at least three occasions prior to implementation. First, the County provided SCLEA with a	on at least three occasions prior to implementation. First, the County provided SCLEA with a
revised Article 18 on May 16, 2007, at the meeting where the parties first reached impasse.	revised Article 18 on May 16, 2007, at the meeting where the parties first reached impasse.
Although three pages were missing from the document, it is clear that the primary issues in	Although three pages were missing from the document, it is clear that the primary issues in
13

14
negotiations were included in the May 16, 2007 document provided to SCLEA: the health care	negotiations were included in the May 16, 2007 document provided to SCLEA: the health care
provisions contained in Sections 18.1, 18.2 and 18.3. The May 16, 2007 proposal also	provisions contained in Sections 18.1, 18.2 and 18.3. The May 16, 2007 proposal also
included proposed language on retiree health benefits in Sections 18.4, 18.5 and 18.6.	included proposed language on retiree health benefits in Sections 18.4, 18.5 and 18.6.
Second,	Second, the County provided SCLEA with a complete copy of its proposed Article 18	the County provided SCLEA with a complete copy of its proposed Article 18
on July 18, 2007, when Couch emailed it to DuFosee following their July 17, 2007 meeting.	on July 18, 2007, when Couch emailed it to DuFosee following their July 17, 2007 meeting.
Again, this document included the health care provisions contained in Sections 18.1, 18.2 and	Again, this document included the health care provisions contained in Sections 18.1, 18.2 and
18.3, which remained unchanged from the May 16, 2007 proposal. In addition, both the	18.3, which remained unchanged from the May 16, 2007 proposal. In addition, both the
July 17, 2007 and the August 17, 2007 proposals confirmed the County's agreement that the	July 17, 2007 and the August 17, 2007 proposals confirmed the County's agreement that the
existing language for retiree health benefits set forth in Section 18.16 of the prior MOU would	existing language for retiree health benefits set forth in Section 18.16 of the prior MOU would
remain unchanged, but would be moved to Sections 18.4 and 18.5. Both DuFosee and his	remain unchanged, but would be moved to Sections 18.4 and 18.5. Both DuFosee and his
successor, Gordon, admitted that the County's July 17, 2007 and August 17, 2007 proposals,	successor, Gordon, admitted that the County's July 17, 2007 and August 17, 2007 proposals,
respectively, did not differ materially from the May 16, 2007 proposal. They admitted,	respectively, did not differ materially from the May 16, 2007 proposal. They admitted,
however, that they did not go through the proposals line by line to determine whether any other	however, that they did not go through the proposals line by line to determine whether any other
changes had been proposed.	changes had been proposed.
Finally, the County provided SCLEA with a copy of its proposed implementation of	Finally, the County provided SCLEA with a copy of its proposed implementation of
Article	Article 18 prior to the January 8, 2008 governing board meeting. Although given the	18 prior to the January 8, 2008 governing board meeting. Although given the
opportunity to do so, SCLEA never objected to that proposal prior to January 8, 2008. After	opportunity to do so, SCLEA never objected to that proposal prior to January 8, 2008. After
SCLEA asserted at the governing board meeting that the implementation proposal contained	SCLEA asserted at the governing board meeting that the implementation proposal contained
matters not previously included in the County's proposals, the County attempted to meet with	matters not previously included in the County's proposals, the County attempted to meet with
SCLEA to discuss this assertion, but SCLEA cancelled a scheduled meeting and did not	SCLEA to discuss this assertion, but SCLEA cancelled a scheduled meeting and did not
respond to the County's requests to reschedule.respond to the County's requests to reschedule.
Although the County again changed some of the language of Article 18 in its	Although the County again changed some of the language of Article 18 in its
January	January 29, 2008 resolution, we do not find that these changes represented a significant	29, 2008 resolution, we do not find that these changes represented a significant
departure from the County's proposals during negotiations. The addition of subdivision (iii) to	departure from the County's proposals during negotiations. The addition of subdivision (iii) to
14

15
Section 18.3(b) discusses the County's implementation of the 85-Y plan and is substantially	Section 18.3(b) discusses the County's implementation of the 85-Y plan and is substantially
similar to language contained in the County's July 17, 2007 and August 17, 2007 proposals.	similar to language contained in the County's July 17, 2007 and August 17, 2007 proposals.
The changes to Sections 18.4 and 18.5 incorporate existing language from Section 18.16 of the	The changes to Sections 18.4 and 18.5 incorporate existing language from Section 18.16 of the
original MOU. The change in employee dental insurance contributions reflects a return to	original MOU. The change in employee dental insurance contributions reflects a return to
language contained in the original MOU. We agree with the ALJ that all of the changes were	language contained in the original MOU. We agree with the ALJ that all of the changes were
reasonably comprehended within the County's pre-impasse proposals.	reasonably comprehended within the County's pre-impasse proposals.
SCLEA' s argument essentially is that the County failed to provide it with a copy of its	SCLEA's argument essentially is that the County failed to provide it with a copy of its
final proposal that specifically identified all changes to Article 18 that it intended to	final proposal that specifically identified all changes to Article 18 that it intended to
implement. Therefore, SCLEA asserts, because the versions of Article 18 provided to it did	implement. Therefore, SCLEA asserts, because the versions of Article 18 provided to it did
not specifically highlight the specific language changes to the original agreement, the County's	not specifically highlight the specific language changes to the original agreement, the County's
January 2008 implementation violated the MMBA. SCLEA has not, however, identified any	January 2008 implementation violated the MMBA. SCLEA has not, however, identified any
specific terms implemented in January 2008 that were not reasonably contemplated within the	specific terms implemented in January 2008 that were not reasonably contemplated within the
County's pre-impasse proposals.9 During the formal hearing, the burden is on the charging	County's pre-impasse proposals." During the formal hearing, the burden is on the charging
party to present evidence to prove the allegations in the complaint. (See, e.g., Oakland Unified	party to present evidence to prove the allegations in the complaint. (See, e.g., Oakland Unified
School District (2009) PERB Decision No. 2061.) SCLEA has not established that the terms	School District (2009) PERB Decision No. 2061.) SCLEA has not established that the terms
.implemented	implemented in January 2008 deviated in any significant way from the proposals presented or	in January 2008 deviated in any significant way from the proposals presented or
discussed	discussed during negotiations. Accordingly, we conclude that SCLEA has failed to establish a	during negotiations. Accordingly, we conclude that SCLEA has failed to establish a
violation of the MMBA.	violation of the MMBA.
In the proceedings before the ALJ, SCLEA appeared to suggest that the implemented	In the proceedings before the ALJ, SCLEA appeared to suggest that the implemented
proposal made changes in the area of employee dental benefit contributions, coordination of	proposal made changes in the area of employee dental benefit contributions, coordination of
leave benefits with statutory requirements, and long-term disability benefits. On appeal,	leave benefits with statutory requirements, and long-term disability benefits. On appeal,
SCLEA has not excepted to the ALJ's findings that all of these items were included in the	SC LEA has not excepted to the ALJ' s findings that all of these items were included in the
parties' negotiations and were reasonably comprehended within the County's pre-impasse	parties' negotiations and were reasonably comprehended within the County's pre-impasse
proposals. Therefore, we affirm the ALJ's findings that the County did not violate the MMBA	proposals. Therefore, we affirm the ALJ's findings that the County did not violate the MMBA
with respect to these issues.	with respect to these issues.
15

ORDER
16
ORDER
16
The complaint and underlying unfair	The complaint and underlying unfair practice charge in Case No. SF-CE-523-M are	practice charge in Case No. SF-CE-523-M are
hereby DISMISSED.	hereby DISMISSED.
Members McKeag and Wesley	Members Mckeag and Wesley joined in this Decision.	joined in this Decision.