City of Escondido (PERB 2311M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ESCONDIDO CITY EMPLOYEES
ASSOCIATION,
Charging Party,
V.
CITY OF ESCONDIDO,
Respondent.
Case No. LA-CE-618-M
PERB Decision No. 2311-M
March 8, 2013
Appearance: Hayes & Cunningham by Amanda K. Hansen, Attorney, for Escondido City
Employees Association.
Before Martinez, Chair; Huguenin, Winslow, and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Escondido City Employees Association (Association) of the
partial dismissal of its unfair practice charge. The charge, as amended, alleges that the City of
Escondido (City) violated the Meyers-Milias-Brown Act (MMBA)1 by transferring bargaining
unit work without negotiating with the Association.2 The charge, as amended, alleges that this
conduct constitutes a violation of MMBA section 3505, and therefore an unfair
1 MMBA is codified at Government Code section 3500 et seq. Hereafter, these sections
of the Government Code will be cited to as sections of the MMBA.
2 The charge, as amended, also alleges that the City violated the MMBA by issuing a
directive prohibiting an employee from exercising protected rights and by retaliating against
the same employee for exercising protected rights. These allegations were not dismissed, and
therefore are not before the Board itself on appeal.

practice under PERB Regulation 32603, subdivision (c). The Office of the General Counsel
dismissed this aspect of the amended charge for failure to state a prima facie case. The
Association filed a timely appeal. The City did not file a statement in opposition to the appeal
as allowed by PERB Regulation 32635, subdivision (c).
MMBA section 3505 provides:
The governing body of a public agency, or such boards,
commissions, administrative officers or other representatives as
may be properly designated by law or by such governing body,
shall meet and confer in good faith regarding wages, hours, and
other terms and conditions of employment with representatives of
such recognized employee organizations, as defined in
subdivision (b) of Section 3501, and shall consider fully such
presentations as are made by the employee organization on behalf
of its members prior to arriving at a determination of policy or
course of action.
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period of time in
order to exchange freely information, opinions, and proposals,
and to endeavor to reach agreement on matters within the scope
of representation prior to the adoption by the public agency of its
final budget for the ensuing year. The process should include
adequate time for the resolution of impasses where specific
procedures for such resolution are contained in local rule,
regulation, or ordinance, or when such procedures are utilized by
mutual consent.
PERB Regulation 32603 provides, in relevant part:
It shall be an unfair practice for a public agency to do any of the
following:
(c) Refuse or fail to meet and confer in good faith with an
exclusive representative as required by Government Code
section 3505 or any local rule adopted pursuant to Government
Code section 3507.
(PERB Regs. can be found at Cal. Code Regs., tit. 8, sec. 31001, et seq.)
2
practice under PERB Regulation 32603, subdivision (c).3 The Office
of
the General Counsel
dismissed this aspect
of
the amended charge for failure to state a prima facie case. The
Association filed a timely appeal. The City did not file a statement in opposition to the appeal
as allowed by PERB Regulation 32635, subdivision (c).
3 MMBA section 3505 provides:
The governing body
of
a public agency, or such boards,
commissions, administrative officers or other representatives as
may be properly designated by law or by such governing body,
shail meet and confer in good faith regarding wages, hours, and
other terms and conditions
of
employment with representatives
of
such recognized employee organizations, as defined in
subdivision (b)
of
Section 3501, and shall consider fully such
presentations as are made by the employee organization on behalf
of
its members prior to arriving at a determination
of
policy or
course
of
action.
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives
of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period
of
time in
order to exchange freely information, opinions, and proposals,
and to endeavor to reach agreement on matters within the scope
of
representation prior to the adoption by the public agency
of
its
final budget for the ensuing year. The process should include
adequate time for the resolution
of
impasses where specific
procedures for such resolution are contained in local rule,
regulation, or ordinance, or when such procedures are utilized by
mutual consent.
PERB Regulation 32603 provides, in relevant part:
It shall be an unfair practice for a public agency to do any
of
the
following:
( c) 	Refuse or fail to meet and confer in good faith with an
exclusive representative as required by Government Code
section 3505 or any local rule adopted pursuant to Government
Code section 3507.
(PERB Regs. can be found at Cal. Code Regs., tit. 8, sec. 31001, et seq.)
2

The Board has reviewed the record in its entirety and given full consideration to the
issues raised on appeal. Based on our review, we reverse the partial dismissal and remand the
case to the Office of the General Counsel for issuance of a complaint on the alleged unlawful
transfer of work by the City for the reasons discussed below.
SUMMARY OF FACTUAL ALLEGATIONS
The Association is an employee organization within the meaning of the MMBA, and
the exclusive representative of City employees in the Administrative, Clerical and Engineering
(ACE) bargaining unit. The City is a public agency within the meaning of the MMBA.
The City's General Fund deficit for fiscal year 2009/2010 was projected at $8.4 million.
The City determined that it could not address the deficit without reductions in staff. On
March 4, 2010, the City informed the Association's attorney of its intent to lay off all full-time
code enforcement officers." The City also advised the Association of its intent to negotiate the
impact of the layoffs.
On March 15, 2010, the representatives of the Association and the City met to negotiate
the impacts of the layoffs during a meet and confer session. Also on March 15, 2010, the
parties agreed to the terms of a severance package for the laid off employees, and executed a
tentative agreement memorializing their agreement. The layoffs were effective March 31,
2010.
he range of duties performed by employees in the classes of Code Enforcement
Officer I (entry level) and II (journey level) is described as follows. They perform a variety of
technical duties in support of the City's code enforcement program; monitor and enforce
applicable ordinances, codes and regulations related to land use, building, housing, health and
safety, property maintenance, mobile home parks, abandoned vehicles, noise and other matters
of public concern; investigate violations and initiate procedures to abate violations and obtain
compliance including issuing notices of violations, citations and other correspondence
specifying necessary corrective actions; and serve as a resource and provide information on
City regulations to property owners, residents, businesses, the general public and other City
departments and divisions. (Job Description, City of Escondido, last rev. 12/2007 [attached as
exh. S to City's Statement of Position].)
33
The Board has reviewed the record in its entirety and given full consideration
to
the
issues raised on appeal. Based on our review, we reverse the partial dismissal and remand the
case to the Office
of
the General Counsel for issuance
of
a complaint on the alleged unlawful
transfer
of
work by the City for the reasons discussed below.
SUMMARY
OF
FACTUAL ALLEGATIONS
The Association is an employee organization within the meaning
of
the MMBA, and
the exclusive representative
of
City employees in the Administrative, Clerical and Engineering
(ACE) bargaining unit. The City is a public agency within the meaning
of
the MMBA.
The City's General Fund deficit for fiscal year 2009/2010 was projected at $8.4 million.
The City determined that it could not address the deficit without reductions in staff. 	On
March 4, 2010, the City informed the Association's attorney
of
its intent to lay off all full-time
code enforcement officers. 4 The City also advised the Association
of
its intent to negotiate the
impact
of
the layoffs.
On March 15, 2010, the representatives
of
the Association and the City met to negotiate
the impacts
of
the layoffs during a meet and confer session. Also on March 15, 2010, the
parties agreed to the terms
of
a severance package for the laid off employees, and executed a
tentative agreement memorializing their agreement. 	The layoffs were effective March 31,
2010.
* TThe range of duties performed by employees in the classes of Code Enforcement
Officer I (entry level) and II Gourney level) is described as follows. 	They perform a variety of
technical duties in support of the City's code enforcement program; monitor and enforce
applicable ordinances, codes and regulations related to land use, building, housing, health and
safety, property maintenance, mobile home parks, abandoned vehicles, noise and other matters
of public concern; investigate violations and initiate procedures to abate violations and obtain
compliance including issuing notices of violations, citations and other correspondence
specifying necessary corrective actions; and serve as a resource and provide information on
City regulations to property owners, residents, businesses, the general public and other City
departments and divisions. (Job Description, City of Escondido, last rev. 12/2007 [attached as
exh. S to City's Statement of Position].)

The charge states that the City found employment for two of the affected employees. A
third, Sandra Moore (Moore), exercised her bumping rights and agreed to be demoted to a
lower classification previously held in the same bargaining unit. Subsequently, Moore was
placed on the City's re-employment list. Effective June 27, 2010, Moore was reinstated to her
former classification within the bargaining unit, Code Enforcement Officer II. Upon
reinstatement, Moore continued to perform the same code enforcement duties as before.
The tentative agreement on effects of the layoff contained a verbatim copy of a
provision from the parties' Memorandum of Understanding (MOU), effective July 1, 2009
through June 30, 2010. That provision, entitled Management Right to Contract with Outside
Vendors, states:
The City will continue to accomplish work internally within the
City workforce and assign such work among various City
departments. When extra ordinary or specialty work must be
accomplished, the City will seek the most cost effective resources
to accomplish such work either through temporary employees or
outside professionals.
The Association alleges that since effectuating the layoffs the City has increasingly
utilized part-time code enforcement officers to perform the work of the full-time code
enforcement officers. Part-time code enforcement officers are outside the bargaining unit.
They perform the same job duties as full-time code enforcement officers. The City counters
that it did not transfer bargaining unit work, but rather, cut back its code enforcement efforts
due to the budgetary constraints, and reorganized and streamlined the code enforcement
program, thereby reducing overall workload.
The unfair practice charge was filed on July 7, 2010. A warning letter from the Board
agent dated June 28, 2011, invited the Association to file an amended charge to correct
deficiencies in the initial charge. A first amended charge was filed on July 15, 2011. The
Association complied with the Board agent's request for additional information about Moore
44
The charge states that the City found employment for two
of
the affected employees. A
third, Sandra Moore (Moore), exercised her bumping rights and agreed to be demoted to a
lower classification previously held in the same bargaining unit. Subsequently, Moore
was
placed on the City's re-employment list. Effective June 27, 2010, Moore was reinstated to her
former classification within the bargaining unit, Code Enforcement Officer
IL
	Upon
reinstatement, Moore continued to perform the same code enforcement duties as before.
The tentative agreement on effects
of
the layoff contained a verbatim copy
of
a
provision from the parties' Memorandum
of
Understanding (MOU), effective July 1,
2009
through June 30, 2010. That provision, entitled Management Right to Contract with Outside
Vendors, states:
The City will continue to accomplish work internally within the
City workforce and assign such work among various City
departments. When extra ordinary or specialty work must be
accomplished, the City will seek the most cost effective resources
to accomplish such work either through temporary employees or
outside professionals.
The Association alleges that since effectuating the layoffs the City has increasingly
utilized part-time code enforcement officers to perform the work
of
the full-time code
enforcement officers. Part-time code enforcement officers are outside the bargaining unit.
They perform the same job duties as full-time code enforcement officers. The City counters
that it did not transfer bargaining unit work, but rather, cut back its code enforcement efforts
due to the budgetary constraints, and reorganized and streamlined the code enforcement
program, thereby reducing overall workload.
The unfair practice charge was filed on July 7, 2010. A warning letter from the Board
agent dated June 28, 2011, invited the Association to file an amended charge to correct
deficiencies in the initial charge. A first amended charge was filed on July 15, 2011. The
Association complied with the Board agent's request for additional information about Moore

by letter dated September 6, 2011. A second amended charge was filed on October 11, 2011.
And, the partial dismissal letter issued on December 5, 2011.
THE PARTIAL DISMISSAL OF THE UNFAIR PRACTICE CHARGE
The Office of the General Counsel determined that the City had a duty to negotiate the
transfer of work from full-time to part-time code enforcement officers because the layoff of the
full-time officers resulted in full-time officer duties ceasing to be performed by full-time
officers, citing to the Board's decision in Desert Sands Unified School District (2010) PERB
Decision No. 2092 (Desert Sands). The Office of the General Counsel also determined that the
City had no duty to negotiate the decision to layoff all full-time code enforcement officers, and
satisfied its duty to negotiate the effects. The dismissal letter relies on the provision in the
effects bargaining tentative agreement regarding management's right to contract with outside
vendors to find that the Association waived its right to negotiate the transfer of bargaining unit
work to part-time officers.
THE ASSOCIATION'S APPEAL
The Association raises three issues on appeal. First, the Association argues that the
Office of the General Counsel correctly found that the City had a duty to negotiate the transfer
of work, but erred in finding that the City's meet and confer obligations extended only to the
effects of the layoff. Second, the Association argues that the Office of the General Counsel
erred in finding that the Association waived its right to negotiate the transfer of work. Last,
the Association argues that the Office of the General Counsel exceeded the scope of its
authority in dismissing the transfer of work allegations in two ways. According to the
Association, the Office of the General Counsel did not have the authority to issue the dismissal
55
by letter dated September 6, 2011. A second amended charge was filed on October 11, 2011.
And, the partial dismissal letter issued on December 5, 2011.
THE PARTIAL DISMISSAL OF THE UNFAIR PRACTICE CHARGE
The Office
of
the General Counsel determined that the City had a duty to negotiate the
transfer
of
work from full-time to part-time code enforcement officers because the layoff
of
the
full-time officers resulted in full-time officer duties ceasing to be performed by full-time
officers, citing to the Board's decision in Desert Sands Unified School District (2010) PERB
Decision No. 2092 (Desert Sands). The Office
of
the General Counsel also determined that the
City had no duty to negotiate the decision to layoff all full-time code enforcement officers, and
satisfied its duty to negotiate the effects. The dismissal letter relies on the provision in the
effects bargaining tentative agreement regarding management's right to contract with outside
vendors
to
find that the Association waived its right to negotiate the transfer
of
bargaining unit
work to part-time officers.
THE ASSOCIATION'S APPEAL
The Association raises three issues on appeal. First, the Association argues that the
Office
of
the General Counsel correctly found that the City had a duty to negotiate the transfer
of
work, but erred in finding that the City's meet and confer obligations extended only to the
effects
of
the layoff. 	Second, the Association argues that the Office
of
the General Counsel
erred in finding that the Association waived its right to negotiate the transfer of work. Last,
the Association argues that the Office
of
the General Counsel exceeded the scope of its
authority in dismissing the transfer
of
work allegations in two ways. According to the
Association, the Office of the General Counsel did not have the authority to issue the dismissal

without providing the Association with notice of the allegations' deficiencies in a second
warning letter or to decide the waiver issue.
DISCUSSION
Timeliness of the Charge
PERB Regulation 32620, subdivision (b)(5), requires dismissal of a charge or any part
thereof if it is determined that the charge is based upon conduct occurring more than six
months prior to the filing of the charge. A charging party bears the burden of demonstrating
that the charge is timely filed. (County of Sonoma (2012) PERB Decision No. 2242-M.) The
statute of limitations is an element of the charging party's prima facie case. (Long Beach
Community College District (2009) PERB Decision No. 2002.) The limitations period begins
to run once the charging party knows, or should have known, of the conduct underlying the
charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177.)
The statute of limitations for new allegations contained in an amended charge begins to
run based upon the filing date of the amended charge (Sacramento City Teachers Association
(Marsh) (2001) PERB Decision No. 1458) unless the new allegations in the amended charge
relate back to the original allegations in the initial charge. (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959.) An amended charge relates back to the
initial charge only when it clarifies facts originally alleged in the initial charge or adds a new
legal theory based on facts originally alleged in the initial charge. (Ibid.)
Here, the conduct underlying the charge, the alleged unlawful unilateral transfer of
work, occurred subsequent to March 31, 2010, the effective date of the layoffs. The initial
charge was filed within six months of that date on July 7, 2010, and is therefore timely. The
amended charges were not filed until July 15 and October 11, 2011, more than six months from
ecause the Board has decided to reverse the dismissal of the charge on substantive
grounds, it is unnecessary to reach the third issue raised by the Association.
without providing the Association with notice
of
the allegations' deficiencies in a second
warning letter or to decide the waiver issue.5
DISCUSSION
Timeliness
of
the Charge
PERB Regulation 32620, subdivision (b )(5), requires dismissal
of
a charge or any part
thereof
if
it is determined that the charge is based upon conduct occurring more than six
months prior to the filing
of
the charge. A charging party bears the burden
of
demonstrating
that the charge is timely filed. 	(County
of
Sonoma (2012) PERB Decision No. 2242-M.) The
statute
of
limitations is an element
of
the charging party's prima facie case. (Long Beach
Community College District (2009) PERB Decision No. 2002.) The limitations period begins
to run once the charging party knows, or should have known,
of
the conduct underlying the
charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177.)
The statute
of
limitations for new allegations contained in an amended charge begins to
run based upon the filing date
of
the amended charge (Sacramento City Teachers Association
(Marsh) (2001) PERB Decision No. 1458) unless the new allegations in the amended charge
relate back to the original allegations in the initial charge. (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959.) An amended charge relates back to the
initial charge only when it clarifies facts originally alleged in the initial charge or adds a new
legal theory based on facts originally alleged in the initial charge. (Ibid.)
Here, the conduct underlying the charge, the alleged unlawful unilateral transfer
of
work, occurred subsequent to March 31, 2010, the effective date of the layoffs. The initial
charge was filed within six months of that date on July 7, 2010, and is therefore timely. 	The
amended charges were not filed until July 15 and October 11, 2011, more than six months from
B Because the Board has decided to reverse the dismissal of the charge on substantive
grounds, it is unnecessary to reach the third issue raised by the Association.
6

the conduct underlying the charge. The timeliness of the amended charges turns on whether
the new allegations clarify facts originally alleged in the initial charge or add a new legal
theory based on facts originally alleged in the initial charge.
The initial charge sets forth two legal theories, "unlawful prohibition on protected
activity" and "retaliation for protected activity." The amended charges set forth a new legal
theory, "unlawful transfer of unit work." Despite the absence of the new legal theory in the
initial charge, the original allegations included the following statement:
Since effectuating these layoffs in April 1, 2010, the City has
increasingly utilized part-time Code Enforcement Officers, who
are not in the ACE unit, in order to fulfill the necessary City
service while avoiding recalling Mr. Lane from layoff status.
The new allegations in the amended charges concerning the transfer of unit work clarify these
facts. The new allegations also add a new legal theory based on facts originally alleged.
While the initial charge focused primarily on the Association's protected activity and
retaliation allegations, it provided sufficient factual allegations to raise the transfer of unit
work claim. Once timely raised, a charging party may supplement factual allegations and legal
theories in subsequent amendments to the charge. PERB Regulation 32620 authorizes a Board
agent to "[mjake inquiries" and "[assist the charging party to state in proper form the
information." This authority includes asking a charging party for clarification of facts and
assisting with identifying proper legal theories. (Los Banos Unified School District (2007)
PERB Decision No. 1935.) Because the new allegations in the amended charges concerning
the transfer of unit work relate back to the original allegations in the initial charge, the
amended charges are deemed timely filed.
Unlawful Unilateral Change: Transfer of Bargaining Unit Work
MMBA section 3505 requires the governing body or other representative of a public
agency to meet and confer in good faith regarding wages, hours and other terms and conditions
the conduct underlying the charge. The timeliness
of
the amended charges turns on whether
the new allegations clarify facts originally alleged in the initial charge or add a new legal
theory based on facts originally alleged in the initial charge.
The initial charge sets forth two legal theories, "unlawful prohibition on protected
activity" and "retaliation for protected activity." The amended charges set forth a new legal
theory, "unlawful transfer
of
unit work." Despite the absence
of
the new legal theory in the
initial charge, the original allegations included the following statement:
Since effectuating these layoffs in April
1,
2010, the City has
increasingly utilized part-time Code Enforcement Officers, who
are not in the ACE unit, in order to fulfill the necessary City
service while avoiding recalling Mr. Lane from layoff status.
The new allegations in the amended charges concerning the transfer
of
unit work clarify these
facts. 	The new allegations also add a new legal theory based on facts originally alleged.
While the initial charge focused primarily on the Association's protected activity and
retaliation allegations, it provided sufficient factual allegations to raise the transfer
of
unit
work claim. Once timely raised, a charging party may supplement factual allegations and legal
theories in subsequent amendments to the charge. PERB Regulation 32620 authorizes a Board
agent to "[m]ake inquiries" and "[a]ssist the charging party to state in proper form the
information." This authority includes asking a charging party for clarification
of
facts and
assisting with identifying proper legal theories. (Los Banos Unified School District (2007)
PERB Decision No. 1935.) Because the new allegations in the amended charges concerning
the transfer of unit work relate back to the original allegations in the initial charge, the
amended charges are deemed timely filed.
Unlawful Unilateral Change: Transfer of Bargaining Unit Work
MMBA section 3 505 requires the governing body or other representative of a _public
agency to meet and confer in good faith regarding wages, hours and other terms and conditions
7

of employment with representatives of recognized employee organizations. PERB
Regulation 32602, subdivision (c), makes it an unfair practice under the MMBA for a public
agency to refuse or fail to meet and confer in good faith with an exclusive representative as
required by MMBA section 3505.
To determine whether a party has violated MMBA section 3505, 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.) It is well-settled that an employer who makes a pre-impasse
unilateral change in an established negotiable policy violates the duty to bargain in good faith.
(NLRB v. Katz (1962) 369 U.S. 736.) Such unilateral changes are inherently destructive of
employee rights and are a failure per se of the duty to negotiate in good faith. (Hacienda
La Puente Unified School District (1997) PERB Decision No. 1187.)
Unilateral changes are considered "per se" violations if certain criteria are met. Those
criteria are: (1) the employer took action to change policy; (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations; (3) the action was not merely an isolated breach of the contract or practice, but
had a generalized effect or continuing impact upon bargaining unit employees' terms and
conditions of employment; and (4) the change in policy concerns a matter within the scope of
representation. (Fairfield-Suisun Unified School District (2012) PERB Decision 2262;
Grant Joint Union High School District (1982) PERB Decision No. 196; Walnut Valley
Unified School District (1981) PERB Decision No. 160.)
hen 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.)
8
of
employment with representatives
of
recognized employee organizations. PERB
Regulation 32602, subdivision (c), makes it an unfair practice under the MMBA for a public
agency to refuse or fail to meet and confer in good faith with an exclusive representative as
required by MMBA section 3505.
To determine whether a party has violated MMBA section 3505, 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.)6 It is well-settled that an employer who makes a pre-impasse
unilateral change in an established negotiable policy violates the duty to bargain in good faith.
(NLRB
v.
Katz (1962) 369 U.S. 736.) Such unilateral changes are inherently destructive
of
employee rights and are a failure per se
of
the duty to negotiate in good faith. (Hacienda
La
Puente Unified School District (1997) PERB Decision No. 1187.)
Unilateral changes are considered "per se" violations
if
certain criteria are met. 	Those
criteria are: (1) the employer took action to change policy; (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations; (3) the action was not merely an isolated breach
of
the contract or practice, but
had a generalized effect or continuing impact upon bargaining unit employees' terms and
conditions
of
employment; and (4) the change in policy concerns a matter within the scope of
representation. (Fairfield-Suisun Unified School District (2012) PERB Decision 2262;
Grant Joint Union High School District (1982) PERB Decision No. 196; Walnut Valley
Unified School District (1981) PERB Decision No. 160.)
WWhen 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.)
8

The transfer of work from bargaining unit employees to employees in another
bargaining unit or to non-unit employees is a matter within the scope of representation because
it has a significant effect on the wages, hours and working conditions of bargaining unit
employees. (Rialto Unified School District (1982) PERB Decision No. 209.) The Board has
held, however, that not all transfers of bargaining unit work are negotiable. In Eureka City
Schools (1985) PERB Decision No. 481, the Board held that a change in the distribution of
duties between unit and non-unit employees, where there is an established practice of
overlapping duties, does not always give rise to a duty to bargain. In Eureka, the Board stated
that:
In our view, in order to prevail on a unilateral transfer of work
theory, the charging party must establish, as a threshold matter,
that duties were, in fact, transferred out of the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively by unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely by increasing the
quantity of work which nonunit employees perform and
decreasing the quantity of work which unit employees perform.
(Id. at p. 15, emphasis in original, fn. omitted.)
When a transfer of unit work is found to be within the scope of representation, the
employer must bargain the decision to transfer work from the bargaining unit employees, not
merely its effects on the employees. Although the Board in Eureka held that there may be
circumstances involving "overlapping duties" where a transfer will not be found negotiable,
this rule does not apply where, as a result of the transfer, the employer eliminated work
previously performed by the bargaining unit employees and re-assigned it to employees outside
the bargaining unit. In such a case, the first of the two exceptions set forth in Eureka, i.e., unit
99
The transfer
of
work from bargaining unit employees to employees in another
bargaining unit or to non-unit employees
is
a matter within the scope
of
representation because
it has a significant effect on the wages, hours and working conditions
of
bargaining unit
employees. (Rialto Unified School District (1982) PERB Decision No. 209.) The Board has
held, however, that not all transfers
of
bargaining unit work are negotiable. In Eureka City
Schools (1985) PERB Decision No. 481, the Board held that a change in the distribution
of
duties between unit and non-unit employees, where there is an established practice
of
overlapping duties, does not always give rise to a duty to bargain. In Eureka, the Board stated
that:
In our view, in order to prevail on a unilateral transfer
of
work
theory, the charging party must establish, as a threshold matter,
that duties were, in fact, transferred out
of
the unit; that is, that
unit employees ceased to perform work which they had
previously performed or that nonunit employees began to perform
duties previously performed exclusively by unit employees.
However, where, as here, unit and nonunit employees have
traditionally had overlapping duties, an employer does not violate
its duty to negotiate in good faith merely by increasing the
quantity
of
work which nonunit employees perform and
decreasing the quantity
of
work which unit employees perform.
(Id. at p. 15, emphasis in original, fn. omitted.)
When a transfer
of
unit work is found to be within the scope
of
representation, the
employer must bargain the decision to transfer work from the bargaining unit employees, not
merely its effects on the employees. Although the Board in Eureka held that there may be
circumstances involving "overlapping duties" where a transfer will not be found negotiable,
this rule does not apply where, as a result
of
the transfer, the employer eliminated work
previously performed by the bargaining unit employees and re-assigned it to employees outside
the bargaining unit. In such a case, the first of the two exceptions set forth in Eureka, i.e., unit

employees cease performing previously performed work, would apply in finding the transfer
negotiable. (Calistoga Joint Unified School District (1989) PERB Decision No. 744.)
As alleged, after the layoffs were effectuated, the City increasingly began utilizing part-
time code enforcement officers to perform the work of the full-time code enforcement officers.
There is no dispute that the duties of full-time and part-time code enforcement officers overlap.
Because bargaining unit employees "ceased to perform work which they had previously
performed," under the Board's decision in Eureka, however, the alleged transfer was
negotiable. In removing work from the bargaining unit and transferring it to other City
employees, the City implemented a change in policy within the scope of representation without
first affording the Association adequate notice and an opportunity to bargain over the change.
Thus, the Association has established for prima facie purposes that the City breached its duty
to bargain by failing to negotiate the transfer of work. (See Desert Sands, supra, PERB
Decision No. 2092 [Board found violation of the duty to negotiate the transfer of unit work
where health technicians performing overlapping duties with employees both within and
outside the bargaining unit were laid off].)
In reaching this conclusion, the Board acknowledges that Moore was reinstated on
June 27, 2010; and that Moore continued to perform the same code enforcement duties for the
City as she did prior to the layoff. The Board also acknowledges that, subsequent to the layoff,
the parties engaged in negotiations over a successor agreement. The Board has held, however,
that a later reversal or rescission of a unilateral action or subsequent negotiation on the same
subject of a unilateral action does not excuse the initial violation. (Desert Sands, supra, PERB
Decision No. 2092 [Board rejected employer's argument that the reinstatement of bargaining
unit employees subsequent to layoff negated the unlawful nature of the transfer of bargaining
unit work]; County of Sacramento (2008) PERB Decision No. 1943-M; Amador Valley Joint
10
employees cease performing previously performed work, would apply in finding the transfer
negotiable. (Calistoga Joint Unified School District (1989) PERB Decision No. 744.)
As alleged, after the layoffs were effectuated, the City increasingly began utilizing part-
time code enforcement officers to perform the work
of
the full-time code enforcement officers.
There is no dispute that the duties
of
full-time and part-time code enforcement officers overlap.
Because bargaining unit employees "ceased to perform work which they had previously
performed," under the Board's decision in Eureka, however, the alleged transfer was
negotiable. In removing work from the bargaining unit and transferring it to other City
employees, the City implemented a change in policy within the scope
of
representation without
first affording the Association adequate notice and an opportunity to bargain over the change.
Thus, the Association has established for prima facie purposes that the City breached its duty
to bargain by failing to negotiate the transfer
of
work. (See Desert Sands, supra, PERB
Decision No. 2092 [Board found violation
of
the duty to negotiate the transfer
of
unit work
where health technicians performing overlapping duties with employees both within and
outside the bargaining unit were laid off].)
In reaching this conclusion, the Board acknowledges that Moore was reinstated on
June 27, 2010; and that Moore continued to perform the same code enforcement duties for the
City as she did prior to the layoff. The Board also acknowledges that, subsequent to the layoff,
the parties engaged in negotiations over a successor agreement. The Board has held, however,
that a later reversal or rescission of a unilateral action or subsequent negotiation on the same
subject of a unilateral action does not excuse the initial violation. (Desert Sands, supra, PERB
Decision No. 2092 [Board rejected employer's argument that the reinstatement of bargaining
unit employees subsequent to layoff negated the unlawful nature of the transfer of bargaining
unit work]; County
of
Sacramento (2008) PERB Decision No. 1943-M; Amador Valley Joint

Union High School District (1978) PERB Decision No. 74 (Amador Valley).) Neither the
subsequent reinstatement of Moore nor the negotiations for a successor agreement undercuts
the Association's prima facie case of unlawful transfer of bargaining unit work."
Although the City did not file a statement in opposition to the appeal, we next address
its main contentions as expressed in position statements filed during the investigation of the
charge to the extent these contentions are not already addressed above and are material to the
appeal. First, the City argued that it did not transfer bargaining unit work. Rather, it cut City
services. Whether the City absorbed the layoff by cutting services rather than transferring
work is a disputed fact. At this stage of the proceedings, we are bound to accept the
Association's allegations as true. (Golden Plains Unified School District (2002) PERB
Decision No. 1489.) It bears mention that the threshold element of a transfer of unit work
violation is that the work was indeed transferred. Although we conclude that the Association
has met its prima facie burden of pleading a transfer of unit work violation, it will have the
burden to prove its case by a preponderance of the evidence at the formal hearing. There can
be no unlawful unilateral change violation if, in fact, the City did not transfer the work of the
full-time code enforcement officers. Such a transfer cannot be presumed by the overlapping
nature of the full-time and part-time code enforcement officer duties in light of the City's
s quoted above, the Board in Eureka held that an employer does not violate its duty
to negotiate in good faith merely by increasing the quantity of work which non-unit employees
perform and decreasing the quantity of work which unit employees perform where unit and
non-unit employees have traditionally had overlapping duties. Unlike what happened in
Eureka, all of the unit employees in this case were laid off. Therefore, Eureka does not apply.
Moore's subsequent reinstatement does not change the basic factual allegations concerning the
layoff and transfer of bargaining unit work that form the prima facie case.
We note that in Eureka, the Board concluded that the employer did not violate its
bargaining obligation under a transfer of unit work theory because there was no evidence the
unit employee ceased to perform duties that had previously been assigned to her in the past. At
the same time, the Board concluded that the employer did violate its bargaining obligation by
unilaterally reducing her hours.
11	11
Union High School District (1978) PERB Decision No. 74 (Amador Valley).) Neither the
subsequent reinstatement
of
Moore nor the negotiations for a successor agreement undercuts
the Association's prima facie case
of
unlawful transfer
of
bargaining unit work. 7
Although the City did not file a statement in opposition to the appeal, we next address
its main contentions
as
expressed in position statements filed during the investigation
of
the
charge to the extent these contentions are not already addressed above and are material to the
appeal. First, the City argued that it did not transfer bargaining unit work. Rather, it cut City
services. Whether the City absorbed the layoff by cutting services rather than transferring
work is a disputed fact. 	At this stage
of
the proceedings, we are bound to accept the
Association's allegations
as
true. (Golden Plains Unified School District (2002) PERB
Decision No. 1489.) It bears mention that the threshold element
of
a transfer
of
unit work
violation is that the work was indeed transferred. Although we conclude that the Association
has met its prima facie burden
of
pleading a transfer
of
unit work violation, it will have the
burden to prove its case by a preponderance
of
the evidence at the formal hearing. There can
be no unlawful unilateral change violation if, in fact, the City did not transfer the work
of
the
full-time code enforcement officers. Such a transfer cannot be presumed by the overlapping
nature
of
the full-time and part-time code enforcement officer duties in light
of
the City's
AAs quoted above, the Board in Eureka held that an employer does not violate its duty
to negotiate in good faith merely by increasing the quantity of work which non-unit employees
perform and decreasing the quantity of work which unit employees perform where unit and
non-unit employees have traditionally had overlapping duties. Unlike what happened in
Eureka, all of the unit employees in this case were laid off. Therefore, Eureka does not apply.
Moore's subsequent reinstatement does not change the basic factual allegations concerning the
layoff and transfer of bargaining unit work that form the prima facie case.
We note that in Eureka, the Board concluded that the employer did not violate its
bargaining obligation under a transfer of unit work theory because there was no evidence the
unit employee ceased to perform duties that had previously been assigned to her in the past. At
the same time, the Board concluded that the employer did violate its bargaining obligation by
unilaterally reducing her hours.

contention that the work of the full-time code enforcement officers was eliminated rather than
transferred. The Association will be required to prove that the part-time code enforcement
officers began performing the work of the full-time code enforcement officers in addition to
their own.
Second, the City argued that the Association waived its right to negotiate over the
transfer of unit work by bargaining with the City over the effects of the layoff and entering into
a tentative agreement. Waiver is an affirmative defense that must be proven by the party
asserting it. (Regents of the University of California (2004) PERB Decision No. 1689-H.)
Waiver of the right to bargain must be "clear and unmistakable." (Amador Valley, supra,
PERB Decision No. 74; Building Material & Construction Teamsters' Union, Local 216 v.
Farrell (1986) 41 Cal.3d 651.) Waiver will not be lightly inferred and any doubts must be
resolved against the party asserting it. (Placentia Unified School District (1986) PERB
Decision No. 595.)
As discussed above, that the City engaged in effects bargaining with respect to its non-
negotiable decision to lay off the full-time code enforcement officers does not relieve it of the
obligation to negotiate its decision to transfer unit work. Effects bargaining arising out of the
layoff decision, on the one hand, and decisional bargaining arising out of the decision to
transfer unit work, on the other, are separate and independent obligations.
The City relies on a provision in the tentative agreement copied verbatim from the
MOU entitled Management Right to Contract with Outside Vendors. The specific language
relied on by the City is "[the City will continue to accomplish work internally within the City
workforce and assign such work among various City departments." In the course of
negotiations, an employee organization may decide to waive its right to bargain a negotiable
decision. The City would have PERB accept that the Association did just that, i.e., that the
12	12
contention that the work
of
the full-time code enforcement officers was eliminated rather than
transferred. The Association will be required
to
prove that the part-time code enforcement
officers began performing the work
of
the full-time code enforcement officers in addition to
their own.
Second, the City argued that the Association waived its right to negotiate over the
transfer
of
unit work by bargaining with the City over the effects
of
the layoff and entering into
a tentative agreement. Waiver is an affirmative defense that must be proven by the party
asserting it. (Regents
of
the University
of
California (2004) PERB Decision No. 1689-H.)
Waiver
of
the right to bargain must be "clear and unmistakable." (Amador Valley, supra,
PERB Decision No. 74; Building Material & Construction Teamsters' Union, Local
216
v.
Farrell (1986)
41
Cal.3d 651.) Waiver will not be lightly inferred and any doubts must be
resolved against the party asserting it. (Placentia Unified School District (1986) PERB
Decision No. 595.)
As discussed above, that the City engaged in effects bargaining with respect to its non-
negotiable decision to lay off the full-time code enforcement officers does not relieve it
of
the
obligation to negotiate its decision to transfer unit work. Effects bargaining arising out
of
the
layoff decision, on the one hand, and decisional bargaining arising out
of
the decision to
transfer unit work, on the other, are separate and independent obligations.
The City relies on a provision in the tentative agreement copied verbatim from the
MOU entitled Management Right to Contract with Outside Vendors. The specific language
relied on by the City is "[t]he City will continue to accomplish work internally within the City
workforce and assign such work among various City departments." In the course of
negotiations, an employee organization may decide to waive its right to bargain a negotiable
decision. The City would have PERB accept that the Association did just that, i.e., that the

Association agreed to reserve exclusively to the City the right to transfer unit work to non-unit
employees in lieu of recalling unit employees from layoff. Such a waiver will not, however,
be lightly inferred. The general language regarding accomplishing work internally before
resorting to contracts with outside vendors does not evince a clear and unmistakable waiver of
the Association's right to bargain over the transfer of unit work to part-time code enforcement
officers. Because doubts must be resolved against the party asserting it, we cannot conclude as
a matter of law that the provision in the tentative agreement regarding contracts with outside
vendors constitutes a clear and unmistakable waiver. This is especially true in light of the fact
that the transfer of unit work was alleged to have occurred after the negotiations concerning the
effects of layoff had been completed by a tentative agreement.
Last, the City argued that the time for the Association to lodge an objection to the
transfer of unit work was when the part-time non-unit employees first began performing
bargaining unit work, relying on footnote 8 in Eureka, which states:
Thus, in a case such as this, in order to establish a prima facie
violation of the Act based on an unlawful transfer of unit work
theory, the Association should have filed its charge at the time
that nonunit employees first began performing unit work, not
long after such a practice became established.
(Eureka, supra, PERB Decision No. 481, fn. 8, emphasis in original.)
The City contends that it has been using part-time code enforcement officers since
2002, and therefore the Association's objection is untimely. The City's reliance on footnote 8,
however, is misplaced because it ignores the salient difference between Eureka and this case.
Unlike Eureka, the present case does not entail an increase in quantity of work performed by
non-unit employees and a corresponding decrease in quantity of work performed by unit
employees. Here, the alleged violation-the unilateral transfer of all duties performed by the
full-time officers-occurred on or about April 1, 2011. As the Association admits, it is not
13	13
Association agreed to reserve exclusively to the City the right to transfer unit work to non-unit
employees in lieu
of
recalling unit employees from layoff. 	Such a waiver will not, however,
be lightly inferred. The general language regarding accomplishing work internally before
resorting to contracts with outside vendors does not evince a clear and unmistakable waiver
of
the Association's right to bargain over the transfer
of
unit work to part-time code enforcement
officers. Because doubts must be resolved against the party asserting it, we cannot conclude as
a matter
of
law that the provision in the tentative agreement regarding contracts with outside
vendors constitutes a clear and unmistakable waiver. This is especially true in light
of
the
fact
that the transfer
of
unit work was alleged to have occurred after the negotiations concerning the
effects
of
layoff had been completed by a tentative agreement.
Last, the City argued that the time for the Association to lodge an objection to the
transfer
of
unit work was when the part-time non-unit employees first began performing
bargaining unit work, relying on footnote 8 in Eureka, which states:
Thus, in a case such as this, in order to establish a prima facie
violation
of
the Act based on an unlawful transfer
of
unit work
theory, the Association should have filed its charge at the time
that nonunit employees first began performing unit work, not
long after such a practice became established.
(Eureka, supra, PERB Decision No. 481, fn. 8,
emphasis in original.)
The City contends that it has been using part-time code enforcement officers since
2002, and therefore the Association's objection is untimely. The City's reliance on footnote 8,
however, is misplaced because it ignores the salient difference between Eureka and this case.
Unlike Eureka, the present case does not entail an increase in quantity
of
work performed by
non-unit employees and a corresponding decrease in quantity
of
work performed by unit
employees. Here, the alleged violation-the unilateral transfer of all duties performed by the
full-time officers-occurred on or about April 1, 2011. As the Association admits, it is not

complaining that part-time officers perform some of the duties of full-time officers. It
complains that now they do all of those duties.
In sum, based on the foregoing reasons, the Board concludes that the Association has
stated a prima facie violation of the duty to bargain in good faith by the City's transfer of unit
work to non-unit employees.
ORDER
The Board REVERSES the Board agent's partial dismissal in Case No. LA-CE-618-M
and REMANDS the case to the Office of the General Counsel for issuance of a complaint
consistent with this Decision.
Members Huguenin, Winslow, and Banks joined in this Decision.
14	14
complaining that part-time officers perform some
of
the duties
of
full-time officers. It
complains that now they do all
of
those duties.
In sum, based on the foregoing reasons, the Board concludes that the Association has
stated a prima facie violation
of
the duty to bargain in good faith by the City's transfer
of
unit
work to non-unit employees.
ORDER
The Board REVERSES the Board agent's partial dismissal in Case No. LA-CE-618-M
and REMANDS the case to the Office
of
the General Counsel for issuance
of
a complaint
consistent with this Decision.
Members Huguenin, Winslow, and Banks joined in this Decision.