City of Pinole (PERB 2288M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED PROFESSIONAL FIREFIGHTERS,
LOCAL 1230,
Charging Party,
V.
CITY OF PINOLE,
Respondent.
Case No. SF-CE-864-M
PERB Decision No. 2288-M
October 15, 2012
Appearances: Davis, Cowell & Bowe by W. David Holsberry and Elizabeth Q. Hinckle,
Attorneys, for United Professional Firefighters, Local 1230; Meyers, Nave, Riback, Silver &
Wilson by Samantha W. Zutler, Attorney, for City of Pinole.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the United Professional Firefighters, Local 1230 (UPF)
from the partial dismissal (attached) of an unfair practice charge. 	The charge, as amended,
alleged that the City of Pinole (City) violated its duty to bargain in good faith under the
Meyers-Milias-Brown Act (MMBA). 1 The Board agent found that the charge failed to state a
prima facie violation of the duty to bargain in good faith.2
Board has reviewed the partial dismissal and 	light of 	s appeal,
the City's response, and the relevant law. Based on this review, we find the partial dismissal
and warning letters to be well-reasoned, adequately supported by the record, and in accordance
with applicable law, with the exception of one issue. Accordingly, the Board adopts the partial
- The MMBA is codified at Government Code section 3500 et seq.
2 We address herein only those charges dismissed by the Board agent.

dismissal and warning letters as the decision of the Board itself to the extent set forth below,
supplemented by the discussion below of the issues raised on appeal. The Board remands this
matter for issuance of a complaint on the issue of whether the City violated the MMBA by
unilaterally imposing a proposal that purportedly waived statutory rights concerning pension
benefits.
PROCEDURAL HISTORY
On July 12, 2011, UPF filed an unfair practice charge alleging that the City violated the
MMBA by refusing to meet and confer and by making unilateral changes to terms and
conditions of employment for represented employees. 	Subsequently, UPF amended the charge
to allege that the City refused to provide information requested during bargaining and insisted
to impasse on non-mandatory subjects of bargaining concerning .the City's pension proposals.
As relevant here, UPF appeals from the dismissal of the following allegations: (1) the
City failed to meet and confer in good faith by failing to provide information about the value of
concessions it sought during bargaining; (2) the City engaged in surface bargaining over its
pension proposals; (3) the City unilaterally changed terms and conditions of employment by
prohibiting on-duty firefighters from attending City Council meetings; and ( 4) the City insisted
to impasse on pension proposals that were non-mandatory subjects of bargaining, amounted to
a waiver of statutory rights, and were unlawfully implemented retroactively.
DISCUSSION
Refusal to Provide Information
appeal, UPF asserts that the 	refused to provide information it requested
concerning "the total value of concessions" sought by the City to address its projected budget
deficit. 	The exclusive representative is entitled to all information that is "necessary and
relevant" to the discharge of its duty of representation. (Stockton Unified School District
2

(1980) PERB Decision No. 143 (Stockton).) An employer need not comply with an
information request, however,
if
the requested information does not exist. (Stockton;
Los Angeles Superior Court (2010) PERB Decision No. 2112-I (Los Angeles Superior Court);
Chula Vista City School District (1990) PERB Decision No. 834 (Chula Vista).) Further, there
is no obligation for an employer to provide detail regarding the thought process or rationale
underlying its managerial decisions. (Los Angeles Superior Court; Ventura County Community
College District (1999) PERB Decision No. 1340.)
We agree with the Board agent that the charge failed to allege facts showing that the
City either ignored or responded with deliberately misleading information to any specific
request for information made by UPF. In support
of
its position, UPF points to a letter dated
April 11, 2011, in which it stated that it did not "feel that the information that we have been
provided has been accurate nor has it been consistent" and that, during contract negotiations,
"we have requested to know the financial goals
of
the City regarding Fire Department cost
reductions." In addition, the letter asserts that, during negotiations, UPF "requested the
amount
of
savings that the City would achieve
if
we agreed to that particular proposal and was
informed that the projected savings had not been determined. Yet the projected savings were
presented at one
of
the subsequent public meetings." Neither the April 11, 2011, letter nor any
other facts alleged in the charge identifies a specific request for information. Rather, at most,
it indicates that, at an unidentified 	and in an unidentified manner, 	requested that
City provide it with a statement of the amount it would save
if
UPF agreed to a particular
proposal to which the City responded 	it did not 	down its requested concessions
that manner and, therefore, did not have the information requested. The allegation that the
City provided conflicting information at multiple meetings of the City Council concerning the
estimated savings to be achieved by closing one fire station temporarily, even if true, does not
3

establish that the City failed to comply with a request to provide specific information.
Accordingly, we conclude that the allegations of the charge are insufficient to establish a prima
facie violation of the duty to furnish information during bargaining.
Surface Bargaining
In its appeal, UPF contends that the City engaged in surface bargaining by proposing
and insisting to impasse on pension proposals based upon a document prepared by a joint
working group oflocal government managers. We agree with the Board agent that the
allegations of the charge fail to establish a prima facie case of surface bargaining. The fact that
the City presented proposals similar to those that may have been recommended or utilized by
other employers does not indicate that the City lacked a genuine desire to reach agreement.
(Placentia Fire Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25 (Placentia).) Nor do
the facts as alleged indicate an intent to subvert the negotiating process, rather than a legitimate
bargaining position adamantly maintained. 	(Oakland Unified School District (1982) PERB
Decision No. 275; Placentia.) Instead, the evidence provided indicates that the City indicated
a willingness to compromise on some aspects of the proposal, such as the second-tier formula.
We conclude that the allegations fail to establish a prima facie case of surface bargaining.
Attendance at City Council Meetings
UPF contends that the City engaged in an unlawful unilateral change when it instructed
the fire chief that firefighters were not to attend 	while on duty and
uniform, without first meeting and conferring. In 	to 	a violation of the duty to
bargain based upon a unilateral change, 	charging party must establish: (1) the employer
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
4

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 (City of Vernon); Walnut Valley Unified School District (1981) PERB
Decision No. 160; San Joaquin County Employees Assn. v. City of Stockton (1984)
161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB Decision No. 196.)
For a past practice to be binding, it must be: (1) unequivocal; (2) clearly enunciated
and acted upon; and (3) readily ascertainable over a reasonable period of time as a fixed and
established practice accepted by both parties. (Desert Sands Unified School District (2010)
PERB Decision No. 2092; Riverside Sheriff's Assn. v. County of Riverside (2003)
106 Cal.App.4th 1285, 1291.) PERB has also described an enforceable past practice as one
that is "regular and consistent" or "historic and accepted." (Hacienda La Puente Unified
School District (1997) PERB Decision No. 1186; County of Placer (2004) PERB Decision
No. 1630-M.) The burden is on UPF to allege facts showing that the City breached an
established past practice. (San Francisco Un(fied School District (2009) PERB Decision
No. 2057; City of Commerce (2008) PERB Decision No. 1937-M.)
The charge alleges that, for more than 25 years, "on-duty firefighters have been
permitted to attend Pinole City Council meetings." While lacking in specifics, we find that the
charge alleges the bare minimum necessary to establish the first three elements of a prima facie
case of unilateral change. The charge alleges that a practice existed under which firefighters
were permitted to attend City Council meetings for 25 years, and that the City unilaterally
changed that practice on or about July 20, 2011, without giving UPF notice or an opportunity
to bargain over the change. The directive issued by the fire chief appears to have
acknowledged the existence of some kind of practice of permitting firefighters to attend City
5

Council meetings, and that the practice was changed to prohibit such attendance while on duty.
The charge further alleges that the change in practice amounted to a change in policy. There is
a factual dispute over whether the practice was a binding past practice, as UPF alleges, or
merely an informal practice or violation of work rules, as the City asserts. This factual dispute
cannot be resolved at this juncture, as we must accept the allegations of the charge as true.
(Golden Plains Unified School District (2002) PERB Decision No. 1489). Therefore, we
conclude that the charge establishes the first three elements of a prima facie case of unilateral
change.
To satisfy the fourth element, the charge must allege facts showing that attendance at
City Council meetings was a matter within the scope ofrepresentation. MMBA section 3504
defines the scope of representation as including "all matters relating to employment conditions
and employer-employee relations, including, but not limited to, wages, hours, and other terms
and conditions of employment, except, however, that the scope of representation shall not
include consideration of the merits, necessity, or organization of any service or activity
provided by law or executive order." The charge is entirely devoid of such allegations. 	By
stating that off-duty personnel are welcome and that UPF representatives will typically be in
attendance, the fire chief's directive expressly contemplates that UPF representatives will
continue to attend City Council meetings.
UPF asserts that the City's directive was targeted specifically at the ability of
firefighters to attend City Council meetings, but not at other on-duty, non-working activities,
and that the timing of the directive "emphasized its coercive effect." A March 15, 2011, letter
from the City manager, however, states that the City had received citizen complaints about the
presence of uniformed personnel in coffee houses and grocery stores, thus indicating that the
policy was aimed at other non-working, on-duty activities as well. UPF fails to explain how
6

the focus of the directive on City Council meetings demonstrates that it concerned a matter
within the scope of representation. There are no facts alleged that the on-duty attendance at
such meetings related in any way to the job duties or working conditions of firefighters.
UPF also asserts that the possibility of disciplinary consequences brings the directive
within the scope of representation, citing City of Vernon. 	In that case, the city adopted an
order prohibiting city employees from using city facilities to wash their personal vehicles, and
that employees who violated that order would be subject to discipline.3 Following the issuance
of the order, a firefighter who violated the order was suspended for three shifts and denied
overtime for six months. Rejecting the city's argument that the order was a reasonable work
and safety rule over which the duty under the MMBA to meet and confer did not apply, the
court of appeal found that the rule was within the scope of representation, in part, because of
the disciplinary penalties imposed for violations of the rule, which clearly affected employee
wages. 	In this case, there is no allegation that any employee was threatened with or subjected
to discipline for violating the rule. Accordingly, because the charge fails to allege facts
establishing that the alleged change in policy concerned a matter within the scope of
representation, we conclude that the charge fails to allege a prima facie case of unilateral
change with respect to on-duty attendance at City Council meetings.
Pension Contributions
UPF asserts that 	City engaged 	bad 	bargaining by insisting to impasse on a
proposal that amounted to a waiver of statutory rights limiting employee pension contributions
to nine"'""'""''"~ and the right to an election to approve or reject changes to employee
contribution rates. 	UPF further asserts that the City improperly implemented its last, best and
final offer (LBFO) retroactively. 	response, the City argues that the interpretation of pension
The apparent genesis of the rule was that a city employee had injured himself while
washing his car on city property and filed a workers compensation claim against the city.
7

statutes exceeds PERB' s jurisdiction, that UPF' s argument is based upon a new argument or
legal theory that was not raised previously, and that there is no "statutory maximum amount"
that an employee may contribute to his or her pension. In addition, the City asserts that it
implemented its LBFO consistent with the prior negotiations between the parties and
applicable case law.
We first address the City's assertion in its response to the UPF's appeal that
"interpretation
of
PERS statutes exceeds PERB' s jurisdiction." While it is true that PERB
does not have jurisdiction to enforce statutes such as those in the Government Code governing
municipal pensions or in the Education Code, PERB necessarily must interpret certain statutes
beyond the collective bargaining laws that PERB administers in the course
of
determining
questions arising under the statutes we do enforce. For example, we construe the Education
Code in order to determine whether a particular bargaining proposal is outside the scope
of
bargaining. (Healdsburg Union High School District and Healdsburg Union School District
(1980) PERB Decision No. 132.) We do so with the sanction
of
the California Supreme Court.
(San Mateo City School Dist.
v.
Public Employment Relations Bd. (1983)
33
Cal.3d 850,
864-865, accord, Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375.)
1.
	Waiver of Statutory Rights
It is well established that an employer may not insist to impasse upon a waiver
of
statutory rights. (State
of
California (Department
of
Personnel Administration) (2009) PERB
Decision No. 2081-S; Chula Vista.) UPF asserts that the pension proposal proposed and
implemented by the City amounted to a waiver of a statutorily-prescribed maximum pension
contribution by employees of nine percent. For the reasons discussed below, we conclude that
8

the allegations
of
the charge are sufficient to support a viable theory
of
law
so as to warrant
issuance
of
a complaint.
The parties agree that contributions to the California Public Employee Retirement
System (CalPERS) for employee pension benefits include both an employer and an employee
component. For the firefighter employees at issue in this case, the statutory employee
contribution rate is nine percent
of
the employee's wages. (Gov. Code,§ 20678.) Employers
are required to contribute an additional amount to cover the remaining cost
of
providing
pension benefits, as established by the CalPERS board
of
directors. (Gov. Code, § 20806.)
Prior to the 2011 negotiations, Article 21.2
of
the parties' memorandum
of
understanding (MOU) required the City to pay the nine percent employees' share
of
CalPERS
contributions. In addition, Article 21.3
of
the MOU provided that the City would pay all
of
the
employer's share
of
contributions, except that,
if
the employer's share exceeded I 1.5 percent,
the additional employer contribution would be split 50-50 between the City and the bargaining
unit employees. It is undisputed that, by the time the parties were negotiating this issue, the
employer's share had risen to 21.252 percent, which was 9.752 percent over the agreed-upon
threshold
of
11.5 percent. Therefore, the City and the employees were each responsible for
4.7676 percent
of
the increase in the employer contribution.
Thus, prior to the 2011 negotiations, the agreement and practice of the parties was for
the employer to pay both the employee's contribution
of
nine percent, plus 16.287 percent
(11.5 percent+ 4. 7876 percent) for the employer's share. At that time, employees paid only
their half of the increase in the employer's contribution above 11.5 percent, or 4.7876 percent.
During the 2011 negotiations, the City proposed eliminating the language of
Article 21.1 requiring it to pay the employee's share of CalPERS contributions and instead
replacing it with the provision that "Employees shall pay the full nine percent (9%) of the
9

required CalPERS Employee Contribution Rate." The City did not propose any change to the
language
of
Article 21.3 concerning the cost-sharing
of
employer contributions, nor did UPF
propose any modification to that provision. Thus, the City's LBFO did not alter the parties'
agreement concerning the employer's contribution. Instead, it only altered the prior agreement
for the employer to pick up the entire employee's contribution
of
nine percent by shifting
responsibility for the employee's share back to the employees. As a result, while the
employees' share
of
the employer's contribution remained at 4.7876 percent, the net effect
of
the City's proposal was to increase the total amount to be contributed by employees to
13.7876 percent.
The charge, as amended, alleges that the City's pension proposal required bargaining
unit members
to
contribute an amount in excess
of
a "statutory maximum"
of
nine percent
without their consent, thereby amounting to an unlawful waiver
of
a statutory right. In support
of
this allegation, the charge cites Government Code sections 20469, 20474, 20678 and 20710.
It
does not, however, identify which
of
these statutes is alleged to have been violated or
explain how these statutes establish a prohibition against employees contributing in excess
of
nine percent.
It
appears that the relevant municipal pension statutes establish a system whereby
employees contribute a part
of
the cost
of
providing a particular level
of
benefits and the
employer contributes part
of
the cost. 	Government Code section 20691 permits the employer
to pay all or a portion
of
the contributions required to be paid by a member, although the
employer may increase, reduce or eliminate its portion of the employees' normal contribution.
In addition, nothing in the relevant statutes appears to prohibit the parties to agree, through
collective bargaining, that employees pay part of the employer's contribution.
10

Government Code section 20678 provides that, for certain local safety members, "the
normal rate
of
contribution shall be 9 percent
of
the compensation paid to those members."
UPF asserts that this statute sets a cap
of
9 percent
of
compensation that an employee may be
charged for pension contributions. By forcing employees to pay more than 9 percent, UPF
argues, the City has imposed an illegal waiver
of
this statutory right. The City argues that this
is not an absolute maximum and that, through collective bargaining, the parties can agree to
cost-splitting measures that result in employees paying more than 9 percent.
Assuming, as we must, that the facts alleged in the charge are true, and after examining
the pension statutes, we conclude that UPF has articulated a viable legal theory that would
support its claim that employees cannot be forced to pay more than 9 percent
of
their salary as
pension contributions. In reaching this conclusion, we do not purport at this state
of
pleading
to interpret the Legislature's intent in passing Government Code section 20678, but instead
rely on the parties to more fully make their case with evidence
of
legislative history, practices
throughout the state and other means to support their respective positions concerning the
ultimate issue in this case - whether the pension statutes prohibit the employer from
unilaterally imposing a proposal that causes employees to pay more than 9 percent
of
their
salary in total pension contributions.4
In processing an unfair practice charge, the role
of
a Board agent is to investigate the
charge to determine
if
an 	practice 	been committed, but the Board's regulations do
not "empower agents to 	on 	ultimate merits of a charge." (Eastside Union School
4 UPF also relies on Government Code sections 20469 and 204 74 in support of its claim
that there can be no change in pension contributions unless employees vote on such changes.
We find that argument less persuasive in support of UPF's claim, but nevertheless rely on the
parties to more fully make their case at the hearing on the merits as to the relevance of these
statutes.
11

District (1984) PERB Decision No. 466 (Eastside); PERB Regulations 32620 and 32640.5)
Thus, the Board has stated, "where the investigation results in receipt of conflicting allegations
of fact or contrary theories of law, fair proceedings, if not due process, demand that a
complaint be issued and the matter be sent to formal hearing." (Emphasis added.) (Eastside,
at p. 7; see also County of San Joaquin (2003) PERB Decision No. 1570-M, at p. 6 [where a
local rule is reasonably susceptible of the interpretation offered by the charging party, a
complaint should issue].) We construe this language to mean that a complaint may be issued
to test viable competing theories of law.
In this case, the parties have advanced contrary theories of law concerning the legal
significance of the provisions of Government Code section 20678(a) regarding the "normal
rate of contribution." Since the combination of the employees' share (nine percent) and the
previously-agreed-upon amount of the employer contribution that the employees share with the
City total nearly 14 percent of payroll, there is merit in UPF' s claim that the imposition was an
illegal waiver of a statutory right. 	There is also merit to the City's assertion that the nine
percent "cap" was not exceeded by its unilateral imposition because Government Code
section 20678(a) refers only to the employees' share. The statutes are silent on what amounts
of the employer's portion the parties can agree to share. Because this dispute over complex
laws relating to municipal pensions goes to the heart of the merits of the UPF's claim that the
imposition 	to an illegal waiver 	a statutory right, 	should have the
opportunity to litigate this issue fully by presenting 	·~-,.. ~~ and argument 	support of their
Although the Board's role ordinarily is to resolve disputed questions of law, under the
unique setting of this case, where there is no guiding PERB precedent and the legal issues
5 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
12

involve are technical and complex issues
of
pension laws outside PERB' s normal jurisdiction,
we find it appropriate to remand this matter for issuance
of
complaint
so
that the issues may be
decided upon a full evidentiary record. We caution that, in reaching this decision, we do not
make any determination on the ultimate merits
of
this case, but hold only that, under the
circumstances presented here, the charge states a viable theory
of
law under the standard set
forth in Eastside.
2.
	Retroactive Implementation
of
LBFO
UPF contends that the City was not privileged to take unilateral action on July 29,
2011, to implement its proposals to change employee pension contributions retroactive to
July
1,
2011, because the parties continued to negotiate through July 26, 2011, and therefore
had not yet exhausted impasse procedures as
of
the July
1,
2011 date. We find no merit in this
argument. Once an employer has exhausted applicable impasse resolution procedures, the
employer may lawfully implement policies reasonably comprehended within its pre-impasse
proposals. (Public Employment Relations Bd.
v.
Modesto City Schools Dist. (1982)
136 Cal.App.3d 881, 900-901.) It is clear that the City's LBFO, presented on June 9, 2011,
included the proposal to implement the pension contribution changes effective July
1,
2011.
The fact that the parties continued to negotiate over those proposals does not preclude the City,
upon having bargained to impasse in good faith, from implementing the terrris
of
its LBFO as
presented during negotiations. 	the 	fails to allege
deduction actually occurred prior to impasse.
ORDER
The unfair practice charge in Case No. SF-CE-846-M is hereby DISMISSED
WITHOUT 	TO AMEND with respect to the allegations that the City of Pinole (City):
( l) failed to meet and confer in good faith by failing to provide information about the value of
13

concessions it sought during bargaining; (2) engaged in surface bargaining over its pension
proposals; (3) unilaterally changed terms and conditions of employment by prohibiting on-duty
firefighters from attending City Council meetings; and (4) unlawfully implemented its pension
proposals retroactively.
The charge is hereby REMANDED to the Office of the General Counsel for issuance of
a complaint consistent with this decision on the issue of whether the City unlawfully insisted to
impasse on and unilaterally implemented pension proposals that were non-mandatory subjects
of bargaining amounting to a waiver of statutory rights.
Chair Martinez and Member Huguenin joined in this Decision.
14

STATE OF CALIFORNIA 	Edmu
PUBLIC EMPLOYMENT RELATIONS BOARD
f
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-1027
f
March 1, 2012
W. David Holsberry, Attorney
Davis, Cowell & Bowe
595 Market St., Suite 1400
San Francisco, CA · 94105
Re: 	United Professional Firefighters, Local 1230 v. City of Pinole
Unfair Practice Charge No. SF-CE-864-M
PARTIAL DISMISSAL
Dear Mr. Holsberry:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 12; 2011. The United Professional Firefighters, Local 123 0
(Union or Charging Party) alleges that the City of Pinole (City or Respondent) violated the
Meyers-Milias-Brown Act (MMBA or Act/ by refusing to meet and confer and by making
unilateral changes to terms and conditions of employment for represented employees. 2 A first
amended charge was filed on August 2, 2011; the City's response was filed on September 12,
2011; the Union filed a reply to the City's response on September 23, 2011; and the Union
filed a second amended charge on November 17, 2011.
Charging Party was informed in the attached Warning Letter dated December 21, 2011, that
certain allegations contained in the 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 these allegations were amended to state a prima facie case or
withdrawn prior to January 6, 2012, the allegations would be dismissed. The Union filed a
Third Amended Charge on January 12, 2012; the City responded to the Third Amended Charge
on February 1, 2012; and the Union made a briefreply on February 2,201
PERB 's investigation revealed the following relevant facts.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
2 This Partial Dismissal Letter does not address concerns that the City unilaterally
changed terms and conditions of employment when it browned out Fire Station 74.

SF-CE-864-M
March
1,
2012
Page 2
Background Bargaining History
On June 30, 2008, the parties' memorandum
of
understanding (MOU) expired while
negotiations over a successor agreement were on-going. That MOU contained the following
relevant provision:
Article 15. Constant Staffing
15
.1
Minimum Staffing
Effective January
1,
2006, the minimum total staffing is a total
of
18
fire-sworn personnel that includes the following:
• 	Six (6) Captains
• 	Six (6) Engineers and/or Engineers/Paramedics
• 	Six (6) Firefighters and/or Firefighters/Paramedics
The City will maintain six (6) sworn positions per
day with three (3) assigned to Firestation
73
and
three (3) assigned to Firestation 74. 3
l l
Ultimately, the City imposed terms and conditions
of
employment for a period
of
one year. 4
One year later, the parties negotiated a one-year MOU that contained the following reievant
prov1s10n:
Article 14. Minimum Staffing
14.1 Minimum Staffing.
For the term
of
this agreement, the Fire Chief or his/her designee
will have the discretion to not fill up to three vacant suppression
personnel positions within the Fire Department (minimum
staffing level of 15).
In addition to the above vacancies, 	two or more personnel are
off on a duty shift due to vacation, sick leave, workers'
compensation, or disability, it will be at the discretion of the
Chief whether or not to backfill those positions.
There are only two firestations in the City.
4 The imposed terms and conditions are not the subject of this charge, and the Union
does not provide a written copy of the terms imposed.

SF-CE-864-M
March 1, 2012
Page 3
Engines in operation will be staffed at a minimum of three (3)
personnel. Any extra personnel (above 3) will become additional
staffing at either Station 73 or 74, as assigned by the Chief or
his/her designee.
In the event the staffing level is 16 suppression personnel, all
employees shall be assigned to a regular duty shift. No personnel
should be moved between shifts unless there is a long-term
vacancy. During the term of this agreement, a long-term vacancy
should be defined as: an absence that is longer than three
months.
At the expiration of this agreement the Minimum Staffing
language negotiated effective January 1, 2006 shall be reinstated.
[Emphasis added.]
In February 2010, a joint working group made up of the Alameda County City Managers'
Association and the Contra Costa Coμnty Public Managers Association adopted a proposal for
pension reform. The Proposal for Regional Pension Reform sought to address concerns
regarding the long-term fiscal sustainability of public retirement systems, and to preempt
overreaching and inappropriate pension reform by statewide initiative. The report
recommended the following changes: (1) creation of a modified level of retirement benefits
for all new city employees in the Alameda/Contra Costa region; and (2) current employees
would participate in funding their own pensions in all cities. According to the report, these
changes would result in both immediate and long-term savings for the employing cities and
counties while allowing the entities to continue to attract and retain qualified employees.
Having adopted goals for pension reform, the report recommended the following action: 	(1)
cities should seek legislative pension reform at the State level through advocacy; and (2)
individual managers should discuss the goals with their respective city councils, and seek
direction for negotiating pension reform as collective bargaining agreements expire.
In April 2010, the City altered staffing levels at a time when the parties were in negotiations
over an MOU. At that time, the parties reached an understanding to the following principles:
the matter was best discussed 	the context of negotiations for a successor agreement (rather
than separately as an effects-only meet and confer session); and any concession made by the
Union would be considered a contribution by the Union to the overall deficit facing the City.
Facts Giving Rise to This Charge
In January 2011, the parties began negotiating for a successor to the one-year MOU that
expired on July 1, 2011.
On February 25, 2011, the City proposed a change to the minimum staffing levels that would
strike existing language and replace it with the following language:

SF-CE-864-M
March
1,
2012
Page 4
The City will maintain minimum staffing
of
three (3) personnel
assigned to each active Engine Company. The number
of
Engine
Companies running per day shall be determined by the Fire Chief
or his/her designee.
After the City made its staffing proposal, it announced that it was browning out Station 74 for
the 2011-2012 fiscal year. It then offered to bargain over the effects
of
this decision, but
refused to negotiate over this decision in the context
of
the successor MOU.
Also on February 25, 2011, the City proposed a change to Article 21.2 - Employee
Contribution Rate Paid by the City. The City proposed to strike the existing language that
required the City to pay the employee's pension contribution and replace it with the following
language:
Employees shall pay the full nine percent (9%)
of
the required
CalPERS Employee Contribution Rate.
The City did not propose any change to the requirement in the expired MOU that employees
pay half
of
the employer's contribution above 11.5%. Thus,
as
written, the City's proposal
was that employees continue to pay half
of
the employer's contribution above 11.5% and also
assume the 9% statutory maximum for employee contributions. Currently, the employer's
contribution rate is 21.252%. The result
of
this under the expired MOU was that the City was
paying 16.3 76% in employer contribution rates and employees were paying 4.876% in
employer contribution rates. The proposed language in the successor MOU would have
employees paying 4.876% plus an additional 9% contribution rate.
During a City Council meeting on March 8, 2011, the City discussed the proposal to brown out
Station 74. The City announced that the cost, including overtime, to fully staff Station 74 was
estimated at $660,000. Savings from a long-term brown-out
of
Station 74 was estimated at
$880,000. Browning out a "second shift" would yield $440,000 in savings. During a City
Council meeting on March 9, 2011, the City provided information that directly conflicted with
the information provided the day before. For example, the City stated that it would cost
$845,000 to fully staff Station 74, and that eliminating a single shift would net savings
of$345,000. Additionally, City staff members at the meeting stated that 	order to keep Station
74 open, it would cost $500,000 from the City's General Fund, and the remaining cost would
have to come from labor concessions. 	motion to accept these staffing changes was voted on,
but not approved.
During a City Council meeting on April 	2011, 	managers acknowledged that two
additional personnel added to the Fire Department would result in "significant" savings to the
overtime costs, and that this concern was being addressed in effects bargaining sessions with
the Union. Union representative Vincent Wells pointed out that there was an apparent
discrepancy in the City's calculated savings in that, if eliminating a single shift would save the
City over $400,000, then closing the station and all three shifts currently staffing the station
should result in a savings of over $1 million, rather than the approximately $800,000 estimated

SF-CE-864-M
March
1,
2012
Page 5
at earlier City Council meetings. When a Council Member asked what the savings would be
from the closure
of
Station 74, the City Manager responded that it would depend on the
overtime savings and that she could provide an analysis at a later date.
On April
11,
2011, the Union sent a letter to the City's Assistant City Manager questioning the
veracity
of
the information that was presented to the City Council prior to its adoption
of
the
decision to close Station 74. Additionally, the Union withdrew a package proposal it had
recently made, and requested that the parties meet to discuss the City's methodology for
estimating the cost savings from the proposed station closure.
In letter dated April 11, 2011, Wells raised the concern that conflicting information had been
provided with regard to the cost savings associated with the closure
of
Station 74. According
to Wells, the City Council had approved the station closure based on representations that it
would result in a $500,000 savings. However, in negotiations, the Union was informed that the
actual savings from the station closure was $350,000 and that the Union should provide the
City with ideas to recoup the additional $150,000 in savings that it needed. Wells queried
whether the City Council would have approved the station closure
if
it had been told that actual
savings from that conduct would be substantially less than the amount presented.
On June
9,
2011, the City presented two last, best and final offers (LBFO). Option A was for a
one-year MOU in which current employees would pay the full 9%
of
their own pension
contributions plus half
of
the employer's contributions; a second-tier plan would be created for
new employees. Option B was for a two-year MOU in which current employees would pay the
full 9%
of
their own pension contributions plus half
of
the employer's contributions; in
exchange for the second year in the MOU, the City would drop the second-tier retirement plan
for new employees. Other terms in the two options were essentially the same. Both options
included minimum staffing levels
as
contained in the City's February 25, 2011 proposal, which
provided for a minimum staffing level
of
three personnel per station, but eliminated the
requirement that Stations
73
and 74 remain staffed at a specific minimum level.
On July 5, the Union's attorney sent a letter to the City manager raising the concern that
browning out Station 74 constituted a unilateral change to the then-operative MOU.
Additionally, the Union raised a concern that the City refused to discuss the closure of Station
74 during negotiations, but then included the February 25 proposal for minimum staffing levels
as an element
of
its LBFO.
On July 20, 2011, Chief Hanley sent an
e-111ail
message to all staff informing them that, at the
direction of the City Manager, the on-duty companies assigned to Stations 73 and 74 would not
be permitted to attend City Council meetings. According to the Union, for more than twenty
five years, on-duty firefighters have been permitted to attend City Council meetings. Often,
on-duty firefighters have been called upon to present information to the City Council and/or
simply to observe the proceedings. The July 20, 2011 e-mail message did not provide a
rationale for the directive, but the Union notes in its second amended charge that on-duty
firefighters have historically been required to attend other non-Fire Department-related events
such as National Night Out, Coastal Cleanup, and various ribbon-cutting ceremonies. This

SF-CE-864-M
March
1,
2012
Page 6
concern was never raised at the bargaining table, despite the parties' on-going
communications.
On July 26, 2011, Union President Vince Wells informed Fire Chief Hanley that Captain Brian
Lowry no longer wished
.to
serve as acting Battalion Chief. Chief Hanley' s response to this
was to inform Wells that Lowry would be ordered to continue serving in this position and that
his failure to comply would result in discipline.
On July 29, 2011, the parties exchanged a series
of
e-mail messages. The City initiated the
exchange, in order to notify the Union that it would begin deducting 9% in PERS
contributions, retroactive to July
1,
2011. The Union disputed that retroactivity could be
lawfully applied to the deductions.
Discussion
Based on the above-described facts, the Union alleges that the City committed a number
of
per
se violations
of
the duty to meet and confer in good faith, as well as engaging in a course
of
conduct that was intended to delay or prevent good faith negotiations over the successor MOU,
which amounts
to
surface bargaining.
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c), 5 PERB utilizes either the "per se" or "totality
of
the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.) The per se
categories include: (1) an outright refusal to bargain; (2) refusal to provide information
necessary and relevant to the employee organization's duty to represent bargaining unit
employees; (3) insistence
to
impasse on a non-mandatory subject of bargaining; ( 4) bypassing
the employee organization's negotiators; and (5) implementation
of
unilateral changes in
working conditions without notice and an opportunity to bargain. (South Bay Union School
District (1990) PERB Decision No. 815.)
Unilateral Changes
Attendance at Citv Council Meetings
According to the Union, the parties have, for the past twenty five years, encouraged and
endorsed on-duty firefighters' attendance at City Council meetings. According to the Union,
on-duty firefighters have historically been encouraged to attend City Council meetings, and
have provided
uuvu.u~-•vu
to the City Council upon 	Accordingly, the directive
on-duty personnel may no longer attend City Council meetings represents a change. What is
) PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-864-M
March
1,
2012
Page 7
less clear is whether this change was within the scope
of
bargaining such that the City was
duty-bound to meet and confer prior to announcing the change.
It is axiomatic that a refusal to bargain is not an unfair practice
if
the refusing party had no
duty to bargain. (Metropolitan Water District
of
Southern California (2009) PERB Decision
No. 2055-M.) In this case, it appears that firefighters had been permitted to engage in certain
non-duty or non-fire suppression activities for a long period
of
time. However, absent facts
demonstrating that firefighters were required to attend City Council meetings, or that
attendance at the meetings was a'regular job duty, it is not clear that the change is a violation.
Acting Assignments
The alleged unilateral change in this case is based entirely on a statement by Hanley to Wells
on July 26, 2011, that Lowry would be ordered to continue serving in his acting position, under
threat
of
discipline. The facts
of
what was stated are disputed. What is undisputed is that
Lowry was permitted to resign his acting position, and that he was not disciplined for doing so.
Therefore, the only issue
is
whether the statement that was made by Hanley to a Union officer
amounts to a unilateral change
..
In a unilateral change case, the statute
of
limitation begins
to
run on the date on which official
action is taken. (Anaheim Union High School District (1982) PERB Decision No. 201.)
	At
present, there are no facts demonstrating that the City took any official action either to
discipline Lowry for opting out
of
the acting assignment, or to change the policy in which
employees' acting assignments were optional. Accordingly, it is not clear thatthe City
unilaterally changed the policy concerning acting assignments on July 26, 2011, or at any time
thereafter.
Insistence on Non-Mandatory Subjects
of
Bargaining
PERB has long held that an employer may not insist to impasse that a union waive statutory
rights. (State
of
California (Department
of
Personnel Administration) (2009) PERB Decision
No. 2081-S.) However, parties may engage in negotiations dealing with permissive, non
mandatory subjects
of
bargaining. (San Mateo County Community College District (1993)
PERB Decision No. 1030.) Once a party has communicated its refusal to waive its right and
refusal to include the non-mandatory subject of bargaining in the agreement, the other party's
insistence that the proposal be included violates the Act. (Chula Vista City School District
(1990) PERB Decision No. 834.) There are no magic words that need to be invoked for a party
to take the position that the non-mandatory proposal shall not be included in the contract.
(Ibid.) Some communication to the employer of the union's opposition is, however, a
prerequisite to charging the employer with bargaining to impasse on a non-mandatory subject
(San Mateo County Community College District, supra, PERB Decision No. 1030.)
According to the Union, the California Government Code sets a maximum amount for the
employee's contribution at 9%. (See Gov. Code, § 20691.) However, the language that the
Union appears to rely upon establishes a "normal rate of contribution," not a maximum rate.

SF-CE-864-M
March 1, 2012
Page 8
The Union fails to provide additional language or arguments upon which to base this argument.
Thus, it is by no means clear that the employer's insistence to impasse on a proposal
that the
employees assume greater than 9% contribution
of
their retirement costs would constitute a
waiver
of
statutory rights, as it does not appear that the statute contains a maximum rate
of
contribution.
Even assuming there were a statutory maximum for employee contributions, the Union
has
not
presented any facts establishing that it put the City on notice
of
its opposition to negotiating
employee contributions
of
greater than 9%. In its third amended charge, the Union asserts that
it
never agreed to pay the additional amount, but it does not allege that it raised an objection to
negotiation over the matter. Accordingly, it is not clear that the City bargained to impasse over
a non-negotiable waiver
of
statutory rights and absent additional facts, this allegation
must
be
dismissed.
LBFO/Bad Faith Bargaining
The Union has a number
of
concerns about the City's implementation in July
of
its LBFO.
First, the Union argues that the implemented terms are identical to the City's initial
proposal
essentially, the City did not make any concessions despite engaging in an outward display
of
negotiating. 	Second, the Union argues that the City implemented terms and conditions that the
Union had never agreed to. 	Third, the Union argues that the City implemented the LBFO
retroactively to July 1, despite the fact that the parties continued to negotiate through July 26,
2011. However, it is not clear
if
the Union believes that retroactivity should be to the last date
the parties met and conferred, or that there should be none at all. Additionally, the Union
argues that by increasing employees' pension contributions as one
of
the components
of
the
LBFO, the City has unlawfully attached its employees' wages, in violation
of
state attachment
laws.
It has long been held that,
Once impasse is reached, the employer may take unilateral action
to implement the last offer the union has rejected. The employer
need not implement changes absolutely identical with its last
offer on a given issue. However, the unilateral adoptions must be
reasonably comprehended within the preimpasse proposals.
While the employer has no license to grant a wage increase
of
greater than any offered the union at the bargaining table, the
employer may institute a wage increase identical with one which
union has rejected as too low.
(PERE
v.
Modesto City Schools District (1982) 136 Cal.App.3d 881, 900-901, internal
citations omitted.) Thus, the Union's first two concerns-that the terms implemented by the
City were identical to its initial proposal and that the Union never agreed to them-even
if
true,
do not establish a violation.

SF-CE-864-M
March
1,
2012
Page 9
Under California law, public sector employers may lawfully make unilateral changes
in
terms
and conditions
of
employment only after completing any required impasse procedures.
(Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982)
131
Cal.App.3d 416, 422.)
Once the employer exhausts impasse procedures, either party may decline further requests to
bargain and the employer may implement policies reasonably comprehended within its last,
best and final offer. (PERE
v.
Modesto City Schools District, supra, 136 Cal.App.3d 881.)
Thus, the key
to
resolution
of
this matter is the determination
of
whether the June 9, 2011
LBFO reasonably comprehends the actions taken by the City on July 29, 2011. Because both
alternative LBFOs presented on June 9, 2011 stated that changes to employee contribution
rates would be effective July
1,
2011, it appears that the employer's implementation was
reasonably comprehended within its LBFO.
However, this Board has held that the methodology used to make adjustments in employee
wages is a negotiable subject. (Laguna Salada Union School District (1995) PERB Decision
No. 1103.) Thus, to the extent that the City attempted to "recover" the unpaid difference
.between the employee contribution amount required under the expired MOU and the amount
required based on the imposed contract for the month
of
July, it was required to negotiate with
the Union to determine the methodology for doing so. In any event, the fact do not establish
that the City in fact made the kind
of
methodological change that was found offensive in
Laguna Salada Union School District, supra, PERB Decision No. 1103. In fact, the
employer's implementation
of
the LBFO was on the last day
of
the pay period for the month
of
July 2011. Because both options also stated that the proposal to change employee contribution
rates would be effective July
1,
2011, the employer's implementation
of
this term within the
month tends to demonstrate that the first deduction at the higher rate would have been on
employees' July 2011 paycheck. Under the circumstances, it appears that the employer did not
apply terms and conditions that were not reasonably comprehended in its LBFO, nor did it
change the method in deducting employee contributions to pensions.
Surface Bargaining
The charge alleges that the employer violated Government Code section 3505 and PERB
Regulation 32603(c) 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 (Placentia Fire Fighters).)
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.) Where there is an accusation 	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 determine 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, at p. 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

SF-CE-864-M
March 1, 2012
Page 10
the motions of negotiations. (General Electric Co. (l 964) 150 NLRB 192, 194, enf. 418 F .2d
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
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 a 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.)
In the Third Amended Charge, the Union states,
... the City and its representatives failed to meet and confer in
good faith by providing conflicting information about proposed
cost-savings effecting [sic] Local 123 0 bargaining unit members,
by refusing to inform Local 1230 about what cost-savings it
sought from the bargaining unit, by refusing to discuss its own
proposal on staffing and any cost-savings from that proposal in
the context of MOU negotiations, and by engaging in surface
bargaining and maintaining a "take it or leave 	attitude with
respect to its proposals on pensions and capping medical
contributions .... The city refused to focus on or objectively
consider Local 1230 proposals unique to the City or to exhibit an
open mind to any alternatives to its proposals, nor did the City
have a sincere desire to reach an agreement which did not
conform to purported extra-unit or regional concerns.
However, these allegations are not supported with facts. 	The Union provides a copy of the
Regional Pension Reform plan, and points out that the City's proposals during the latest round
of negotiations borrows language from the Regional Pension Reform plan. Even assuming the
City remained firm in that proposal throughout negotiations, this fact, alone, does not establish

SF-CE-864-M
March 1, 2012
Page 11
that the City was engaged in surface bargaining. Additionally, the facts provided in the charge
relative to the City's alleged refusal to inform the Union of the cost savings sought from Union
concessions consists of Union officers attending public meetings and questioning the figures
presented at those meetings. There are no facts demonstrating that an official request for
necessary and relevant information was made and either ignored or responded to with
deliberately misleading information. Thus, while it may be true that conflicting information
was provided at public meetings in response to various inquiries, it is not clear that the City
deliberately misinformed the Union or refused to respond to any requests for information.
In short, although there appear to have been a number of miscommunications between the
parties and the City took firm positions as to several negotiable issues, the facts do not
establish that the City engaged in a course of conduct with the intent of thwarting the parties'
negotiations.
Therefore, the allegations which fail to state a prima facie case are hereby dismissed based on
the facts and reasons set forth in this and the December 21, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,6 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
this dismissal. 	(PERB Regulation 32635(a).) Any document filed with the Board must contain
the case name and number, and the original and five (5) copies of all documents must be
provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(PERB Regulations 32135(a) and 32130; see also Gov. Code,§ 11020, subd. (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. 	(PERB Regulation 32135(b),
(c) and (d); see also PERB Regulations 32090 and 32130.)
The Board's address
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811 	1
(916) 322-8231
FAX: (916) 327-7960
0
PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SF-CE-864-M
March
1,
2012
Page
12
If
Charging Party files a timely appeal
of
the refusal to issue a complaint, any other party may
file with the Board an original and five (5) copies
of
a statement in opposition within twenty
(20) calendar days following the date
of
service
of
the appeal. (PERB Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See PERB Regulation 32140 for the required contents.)
The document will be considered properly "served" when personally delivered or deposited in
the mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. (PERB
Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (PERB Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
B~
Alicia Clement
Regional Attorney
Attachment
cc: Edward L Kreisberg, Attorney
AC

STATE OF CALIFORNIA
B=R==aO~W==aN==aJ;;;R;;;;·•:::;G~ov;.;er;;;;n;;;;,,or
PUBLJtC EMPLOYMENT RELATIONS BOARD
F
San Francisco Regional Office
1330'Broadway, Suite 1532
Oakland,CA 94612-2514
Telephone: 510-622-1023
Fax: (510) 622-1027
F
December 21, 2011
W. David Holsberry, Attorney
Davis, Cowell & Bowe
595 Market St., Suite 1400
San Francisco, CA 94105
Re: 	United Professional Firefighters, Local 123 0
v.
City
of
Pinole
Unfair Practice Charge No. SF-CE-864-M
WARNING LETTER
Dear Mr. Holsberry:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 12, 2011. The United Professional Firefighters, Local 1230
(Union or Charging Party) alleges that the City
of
Pinole (City or Respondent) violated the
Meyers-Milias-Brown Act (MMBA or Act)1 by refusing to meet and confer and by making
unilateral changes to tenns and conditions
of
employment for represented employees. A first
amended charge was filed on August 2, 2011; the City's response was filed on September 12,
2011; the Union filed a reply to the City's response on September 23, 2011; and the Union
filed a second amended charge on November 17, 2011.
PERB' s investigation
of
the charge and amended charges, as well as the response and reply
thereto, revealed the following relevant facts. 	Charging Party is the exclusive representative
of
a bargaining unit
of
firefighters. 	Since February 2011, the parties have been in negotiations
over a successor memorandum
of
understanding (MOU).
In response to what it perceived as a net loss in revenue, the City began negotiations with
concessionary proposals which included reductions in pay and increases in health benefits and
retirement costs. According to the City, other bargaining units were similarly impacted.
parties met for negotiations an unspecified number of times during February, March, April,
May and June 2011. On July 22, 2011, the parties met with a State Mediation and Conciliation
Service (SMCS) mediator in an attempt to resolve their outstanding disputes. According to the
City, it attempted to limit its key proposals to economic items, but agreed to modifications on
non-economic items. Despite the assistance of SMCS, the parties deadlocked on the issues of
pension and health benefits and minimum staffing levels. Ultimately, the City imposed its last,
best and final offer (LBFO).
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

SF-C2-864-M
D;i.;ember 21, 2011
Page 2
In its charge, the Union states:
[T]he City
of
Pinole and its representatives failed to meet and
confer in good faith and instead engaged in surface bargaining
and maintained a "take it or leave it" attitude with respect to its
proposals on pensions and capping medical contributions. These
proposals "injected extra-unit matters" into the negotiations
because they related to the purported need for "regional public
pension reforms" rather than relating directly to the
circumstances in the City
of
Pinole and the needs and proposals
of
the Local 1230 bargaining unit. The City
of
Pinole refused to
focus on or objectively consider Union proposals unique to the
City
of
Pinole or to exhibit an open mind to alternatives to its
proposals, nor did the City
of
Pinole have a sincere desire to
reach an agreement which did not conform to purported extra-unit
or regional concerns.
No additional facts are provided regarding the specific proposal(s) made by either party.
According to the Union, on an unspecified date, the City altered staffing levels and "browned
out" Fire Station 74.2 The Union asserts that these decisions were made with the intention
of
"coercing" bargaining unit members. 	The City asserts that the decision to close or "brown
out" Station 7 4 was made at a public City Council meeting in May 2011. According to the
City, the Union's President, Vince Wells, spoke at several City Council meetings where station
closures were discussed and acknowledged that the City had the right to "either close or keep
the station open." 	·
While the parties were negotiating the effects
of
the station closure, the issue
of
staffing levels
was raised. 	The expired MOU stated that staffing levels would revert back to 2006 levels.
The 2006 staffing levels for Station 74 allocated three personnel to staff that station. The City
took the position that the closure
of
Station 74 negated that particular requirement. 	The
Union's argument is apparently that the City's duty to revert to 2006 staffing levels obligated it
to maintain Station 74 and to staff it accordingly.
According to the Union, on July 20, 2011, the City 	two unilateral changes to terms and
conditions
of
employment for firefighters. 	First, it announced that on~duty firefighters were
not permitted to attend City Council meetings. According to the City, in 	201 I, firefighters
working as part
of
an on-duty 	company attended a 	Council meeting in uniform during
their scheduled work shift. In response to this conduct, the City Manager and Fire Chief
announced that while all off-duty personnel were welcome to attend City Council meetings,
of
	Both parties use the phrase "brown out" to describe the temporary closure 	one of
the fire stations due to lack of funds.

SF-CE-864-M
December 21, 2011
·Page 3
on-duty personnel could watch City Council meetings live at the fire station while waiting for
calls, but should not leave their assigned work stations to attend meetings.
Second; the Union asserts that on July 20, 2011, the City announced that "acting." supervisory
assignments were no longer voluntary. The Union provides
no
additional facts regarding this
allegation. However, in its response, the City states that after the Union rejected the City's
LBFO, the Union President presented the Fire Chief with three letters from employees in
different "acting" positions, each stating that they no longer wished to serve in those acting
positions. According to the City, the Fire Chief stated in response to the letter from the Acting
Battalion Chief only, that "losing the Acting Battalion Chief would create a problem and that
he might need to· direct someone to work in that capacity to ensure department coverage and
operations." Ultimately, no action contrary to the wishes
of
that employee were taken and the
Fire Chief arranged for an external battalion chief to serve in his stead.
According to the City, the parties' MOU states:3
The City shall provide an incentive pay program for those
employees with the rank
of
Captain, who have been requested to
serve as the Battalion Fire Chief for the Battalion 7 area in his or
her absence. The purpose
of
this program is to provide an
opportunity for Captains to gain additional management
experience and to provide overall management coverage
of
operational and tactical response requirements when the [F]ire
Chief is absent an[
d]
has so directed. Additional compensation
will be provided
...
to those fire personnel.
Thus, while refuting the statement that the Fire Chief made any threat, the City argues that
operations require that it has either a Battalion Chief or an Acting Battalion Chief at all times,
and that the above-quoted language was never intended to make the decision optional at the
employee's discretion. The other two employees were permitted to resign their acting
positions without incident.
Finally, the Union asserts that, on July 29, 2011, the City "threatened to unilaterally attach
current wages
of
[Union] members." The Union does not provide any additional facts related
to this allegation. It appears, however, that the conduct which the Union characterizes as
attaching the wages of employees is the City's imposition of its LBFO, which included an
increase in employee contributions to pension and health benefits, resulting in an overall
decrease 	the employees' wages.
Neither party provides a copy of the MOU, but the City quotes portions of the MOU
in its response.

SF-CE-864-M
December 21, 2011
-page 4
Discussion
PERB Regulation 32615(a)(5)4 requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alieged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
As written, the charge contains a number
of
statements that are simply legal conclusions. 	As
discussed in greater detail below, the charge fails to allege the prima facie elements
of an
unfair practice.
I.
	Surface Bargaining
The charge alleges that the employer violated Government Code section 3505 and PERB
Regulation 32603(c) by engaging in bad faith or "surface" bargaining. Bargaining in good
faith is a "subjective attitude and requires a genuine desire toreach agreement." (Placentia
Fire Fighters
v.
City
of
Placentia (1976) 57 Cal.App.3d 9,
25
(Placentia Fire Fighters).)
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.) 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 determine 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, at p. 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
the motions
of
negotiations. (General Electric Co. (1964) 150 NLRB 192, 194, enf. 418 F.2d
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 	a
and-take. 	(State
of
California (Department
of
Personnel Administration) (1998) PERB
Decision No. 1249-S.)
4 PERB Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SF-CE-864-M
December 21, 2011
Page 5
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.)
In this case, the Union states in its charge that the City entered negotiations with a take-it-or-
leave-it attitude. However, other than the fact that the parties failed to reach an agreement, the
Union provides no facts to support this contention. Thus, absent additional facts from which
PERB could make a determination that the City's conduct evidenced a take-it-or-leave-it
attitude, this allegation will be dismissed.
Even assuming Charging Party is able to amend the charge to include facts demonstrating that
the City entered negotiations with a take-it-or-leave-it attitude, the allegation
of
a single indicia
of
bad faith bargaining does not establish a prima facie case
of
bad faith bargaining. ( Oakland
Unffied School District (1996) PERB Decision No. 1156.)
II. Unilateral Changes
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c ), PERB utilizes either the "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. 	(Stockton Unified School District (1980) PERB Decision No. 143.)5 Unilateral
changes are considered 	se" violations 	certain 	are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before 	employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802; Walnut Valley Unified School 	(1981)
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.)
5
. 	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-864-M
December 21, 2011
Page 6
A. Brown Outs
Whether a subject is within the scope
of
representation is a legal determination that must be
made b: the Board. 	(South Bay Union School District (1990) PERB Decision No. 791.) The
MMB/..:.
states, at section 3504:
The scope
of
representation shall include all matters relating to
employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions
of
employment, except, however, that the scope
of
representation shall not include consideration
of
the merits,
necessity, or organization
of
any service or activity provided by
law or executive order. 	[Emphasis added.]
Whether a matter is negotiable, even though not specifically enumerated, is determined
under
the three-part test established in Claremont Police Officers Assn.
v.
City
of
Claremont (2006)
39 Cal.4th 623: (1) Does the management action have a significant and adverse effect on the
wages, hours, or working conditions
of
the bargaining-unit employees.	
If
not, there is no duty
to meet and confer. (2) Does the significant and adverse effect arise from the implementation
of
a fundamental managerial or policy decision.
If
not, then the meet and confer requirement
applies. 	(3)
If
both factors are present, the Board applies a balancing test. The action is within
the scope ofrepresentation only
if
the employer's need for unencumbered decisionmaking in
managing its operations is outweighed by the benefit to employer-employee relations
of
bargaining about the action in question. (City
of
Alhambra (2010) PERB Decision No. 2139-
M.)
no	It is axiomatic that a refusal to bargain is not an unfair practice
if
the refusing party had
duty to bargain. (Metropolitan Water District
of
Southern California (2009) PERB Decision
No. 2055-M.) The test for determining the scope ofrepresentation under the MMBA,
described above, closely resembles the test adopted by the United States Supreme Court when
interpreting the scope
of
bargaining under the National Labor Relations Act (NLRA). The
Court pointed out in First National Maintenance Corp.
v.
National Labor Relations Board,
(1981) 452 U.S. 666, that the importance oflabeling a subject matter a mandatory subject
of
bargaining is not only to ensure that certain subjects affecting employer-employee relations are
·fully negotiated, but to establish and maintain industrial peace and the flow
of
commerce. 	The
U.S.	issue in First National Maintenance Corp.
v.
National Labor Relations Board, supra, 452
666, was whether the employer's decision, motivated purely by the fiscal needs of the
business, to close one
of
its locations was a mandatory subject
of
negotiations. 	The Court
reasoned that requiring an employer to negotiate over a decision to close part
of
its business
disproportionately harms the employer because the union's practical purpose in participating in
negotiations over this decision "will be largely uniform: it will seek to halt or delay the
closing." (Ibid. at 686.) Requiring the employer to complete negotiations before
implementing the change by labeling the decision a mandatory subject of bargaining would
"afford a union a powerful tool for achieving delay, a power that might be used to thwart

SF-CE-864-M
December 21, 2011
Page 7
management's intentions in a manner unrelated to any feasible solution the union might
propose." (Id. at p. 683.)
As noted by the California Supreme Court, decisions to close a plant or reduce 'the size
of
an
entire workforce directly affect the amount
of
work that can be accomplished or the nature and
extent
of
the services that can be provided and are therefore, "fundamental management"
decisions. (Building Materials & Construction Teamsters Union, Local 216
v.
Farrell (1986)
41
Cal.3d 651.) Furthermore, the scope
of
bargaining under the MMBA may be narrower than
under the NLRA, as the legislative exclusion
of
merits, necessity or organization during
negotiations was included to forestall any expansion
of
the language
of
"wages, hours and
working conditions" to include more general managerial policy decisions. (San Jose Police
Officers Association
v.
City
of
San Jose (1978) 78 Cal.App.3d 935.) PERB has routinely held
that a decision which reflects a change in the nature, direction or level
of
services falls within
management's prerogative and is outside the scope
of
representation. (Arcata Elementary
School District (1996) PERB Decision No. 1163; see also, Moreno Valley Unified School
District (1995) PERB Decision No. 1106 [staffing pattern determinations are a matter
of
managerial prerogative and not subject to negotiations].)
In this case, the Union argues that the City was obligated to negotiate over the decision to
temporarily close Station 74. Charging Party has not provided evidence
of
any PERB cases in
which the negotiability
of
"brown outs" was at issue. "Brown outs" appear to be the public
sector equivalent
of
the private sector act
of
shutting down part of a
business-for
purely fiscal
reasons, the City has determined that it must scale back the number
of
locations at which it
offers fire suppression services. Under these circumstances, the most likely outcome
of
a
requirement that the parties negotiate over this matter is simply to delay the inevitable
reduction in fire prevention services during a period
of
worsening financial circumstances.
Thus, in this case, "brown outs" have a significant and adverse effect on terms and conditions
of
employment, but the employer's need for unencumbered decision-making appears to
outweigh any benefit to employer-employee relations by requiring the parties to negotiate over
the matter.
Accordingly, it is not clear that the City had a duty to meet and confer over the decision to
implement "brown outs." Absent evidence that "brown outs" are within the scope
of
representation, Charging Party has not established 	prima facie elements
of
a complaint
failure to meet and confer in good faith over the decision to brown out Station 74.
A finding that the parties are not required to meet and confer over the decision to implement
"brown outs" does not absolve the employer from its duty to meet and confer with the Union
over any negotiable effects of its decision, however. As noted 	Claremont Police Officers
Assoc.
v.
City
of
Claremont, supra, 3 9 Cal.4th 623 at 634, requiring effects bargaining
maintains an appropriate balance between an employer's right to close its business and an
employee's need for some protection from arbitrary action.
In order to establish the prima facie elements of a charge of failure to meet and confer over
negotiable effects, the charging party must show that it made a request to bargain the effects of

SF-CE-864-M
December 21, 2011
Page 8
the decision. 	(Sylvan Union Elementary School District (1992) PERB Decision No. 919.)
Once the union requests to bargain over the effects
of
a permissive/non-negotiable change, the
employer is obligated to negotiate over all the reasonably foreseeable effects thereof. (The
Regents
of
the University
of
California (Lawrence Livermore National Laboratory) (1997)
PERB Decision No. 1221-H.)
Implementation
of
a non-negotiable decision prior to agreement or exhaustion
of
impasse
(assuming the respondent provided notice and a meaningful opportunity to bargain) is lawful
if:· (1) the implementation date is not an arbitrary one; (2) notice
of
the implementation date is
given sufficiently in advance for meaningful negotiations prior to implementation; and (3) the
employer negotiates in good faith prior to and after implementation as to those subjects not
necessarily resolved by virtue
of
the implementation. (Compton Community College District
(1989) PERB Decision No. 720.)
and	Here, it appears that the parties engaged in some discussion with regard to staffing levels
how the closure
of
Station 74 would impact the Constant Staffing provision in the parties'
MOU. What is unclear is whether these discussions took place in the context
of
a meet and
confer demand over the effects
of
the brown out decision. Absent facts demonstrating that the
Union demanded and the City was required to meet and confer over staffing as a foreseeable
effect
of
the brown out
of
Station 74, PERB may not presume that these elements
of
a prima
facie charge have been met.
for	Thus, under the circumstances, PERB cannot find the prima facie elements
of
a complaint
failure to meet and confer in good faith over the negotiable effects
of
a decision to brown out
Station 74.
B. Attendance at City Council Meetings
must
	It is a fundamental rule
of
labor law that certain terms and conditions
of
employment
remain in effect following the expiration
of
a collective bargaining agreement during the
parties' negotiations over a successor agreement. (Antelope Valley Union High School District
(1998) PERB Decision No. 1287.) The status quo against which an employer's conduct is
evaluated must take into account the regular and consistent past patterns
of
changes in the
conditions
of
employment. (Pajaro Valley Unified School District (1978) 	Decision
No. 51.) The fact that the collective bargaining agreement does not clearly refer to certain
benefits does not detract from the fact that their existence represents the status quo. The
employer cannot change the status quo on items within scope without first complying with the
Act's meet and confer requirements. (Clovis Unified School District (2002) PERB Decision
No. 1504.)
and	A valid past practice must be: (1) unequivocal; (2) clearly enunciated and acted upon; 	(3)
readily ascertainable over a period of time as a fixed and established practice. (Hacienda
La Puente Unified School District (1997) PERB Decision No. 1186.) In other words, it must
be "regular and consistent" or "historic and accepted." (Ibid.) Additionally, Charging Party
must provide evidence that the employer knew of the employees' conduct. (State of California

SF-CE-864-M
December 21, 2011
Page 9
(Departments
of
Personnel Administration, Banking, Transportation, Water Resources
and
Board
of
Equalization) (1998) PERB Decision No. 1279-S.)
The Union alleges that the City "unilaterally altered the status quo by announcing that
on
duty
employees were no longer permitted to attend and observe Pinole City Council meetings."
However, the Union provides no evidence
of
a policy or past practice
of
permitting firefighters
to attend City Council meetings while on duty. Absent evidence that the status quo included a
policy
of
permitting firefighters to attend City Council meetings while on duty, this allegation
will be dismissed.
C. 	Acting Assignments
The Union also alleges that "the City
of
Pinole threatened to unilaterally alter the status quo by
refusing to adhere to the recognized practice that acting assignments were voluntary."
However, the Union provides no facts demonstrating that there was a recognized practice that
acting assignments were voluntary. Absent such facts, this allegation will be dismissed.
D. · Wages/LBFO
The Union alleges that the City threatened to attach employees' wages, and that it has
unilaterally imposed contract terms that violate public employee retirement statutes.
A local agency under the MMBA is empowered to establish procedures for dispute resolution.
(Gov. Code, §3507.) PERB regulation 32603 states that it is an unfair practice for an employer
to fail to exercise good faith while participating in any required impasse procedure or for an
employer to violate a local rule. Thus, in jurisdictions governed by the MMBA, local rules,
regulations and ordinances, as well as applicable contract provisions, must be examined to
determine what,
if
any, impasse resolution mechanisms are required.
From the facts provided by both parties, it appears that the parties were meeting and conferring
for a period
of
time before resorting to some form
of
dispute resolution involving SMCS.
Although not characterized in this fashion by the Charging Party, it also appears that the
dispute resolution process was undertaken as part
of
an impasse procedure and did not result in
an MOU, at which point the City implemented its LBFO.
While it is true that the employer may not implement changes to the status quo while the
parties are meeting and conferring over a successor MOU, it may lawfully implement changes
reasonably contemplated within in its LBFO after completing its duty to meet and confer.
(City
of
Clovis (2009) PERB Decision No. 2074-M.) However, neither party provides a copy
of
the City's local rules. Thus, it is unclear whether Charging Party intends to argue that the
City has implemented an unreasonable local rule, or that it has violated a local rule. Nor is it
clear whether the parties had reached impasse as defined by the City's local rules. The Union
must amend the charge to include facts demonstrating either that the City failed to follow its
own rules regarding impasse; that its impasse procedures were unreasonable on their face; or
that the City's implementation of its LBFO occurred prior to the parties reaching a valid

SF-CE-864-M
December 21, 2011
Page
10
impasse. Absent additional facts, PERB cannot find a violation
of
the Act and this allegation
will be dismissed.
To the extent that Charging Party intends to allege that the increased withholdings by the City
violate Government Code sections 20469, 20474, 20678, and 20710, those allegations must be
addressed in another forum. PERB does not enforce the provisions
of
the Government Code
relative to the Public Employees' Retirement System.
For these reasons the charge, as presently written, does not state a prima facie case. 6
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 Third 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 corner
of
the charge form. 	The amended charge must be
served on the Respondent's representative and the original proof
of
service must be filed with
PERB.
If
an amended charge or withdrawal is not filed on or before January
6,
2012, 7 PERB
will dismiss your charge.	
If
you have any questions, please call me at the above telephone
number.
Sincerely,
Alicia Clement
Regional Attorney
AC
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that
charging party is capable
of
providing admissible evidence 	support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
7 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)