City of Santa Clara (PERB 2476M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA PUBLIC SAFETY NON-
SWORN EMPLOYEES ASSOCIATION,
Charging Party,
v.
CITY OF SANTA CLARA,
Respondent.
Case No. SF-CE-904-M
PERB Decision No. 2476-M
March 10, 2016
Appearances: Rains Lucia Stern by Peter A. Hoffmann, Attorney, for Santa Clara Public
Safety Non-Sworn Employees Association; Meyers, Nave, Riback, Silver & Wilson by
Edward L. Kreisberg and Samantha W. Zutler, Attorneys, for City of Santa Clara.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
BANKS, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Santa Clara Public Safety Non-Sworn Employees
Association (Association) from a proposed decision (attached) by a PERB administrative law
judge. The complaint alleged that the City of Santa Clara (City) violated the Meyers-Milias-
Brown Act (MMBA)1 and PERB regulations2 by failing and refusing to meet and confer in good
faith during negotiations for a successor agreement in October-December 2011, and by
interfering with the rights of employees and the Association by imposing terms and conditions of
1MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

employment affecting Unit 10 members that were more regressive than those negotiated by the
City the previous year with the representatives of other bargaining units.
By agreement
of
the parties and the administrative law judge initially assigned to this
case (ALJl), the matter was to be decided on a stipulated record in lieu
of
a formal hearing. In
support
of
its allegations, the Association submitted sworn declarations alleging that various
City managers and officials had threatened reprisals and made disparaging remarks about the
Association to Unit 10 members in the months preceding the parties' 2011 negotiations. The
City submitted rebuttal declarations denying these allegations and any inference
of
animus
towards the Association.
After the matter was submitted for decision, it was transferred to a second AI.J (AI.J2),
who refused to consider the Association's declarations, reasoning that they contained
uncorroborated and unreliable hearsay on disputed facts. ALJ2's proposed decision then
dismissed all allegations in the complaint and underlying unfair practice charge.
The Board has reviewed the entire record in this matter, including the pleadings, the
stipulated record and exhibits, the parties' declarations and the verified documents attached thereto
as exhibits, the Association's exceptions and supporting brief, and the City's response and
supporting brief. AI.J2's factual findings, as set forth in the proposed decision, are adequately
supported by the stipulated record and we adopt them as the findings of the Board itself.
We do not, however, adopt the proposed decision's conclusions oflaw. In our view,
AU2
erred by not considering the Association's declarations or otherwise fully developing the
record regarding the allegations of disparaging statements by City managers and officials. We
therefore set aside the dismissal of the complaint and underlying unfair practice charge and
remand the matter for further proceedings in accordance with the discussion below.
2

FACTUAL AND PROCEDURALHISTORY3
The Association is the exclusive representative
of
City employees in Bargaining Unit 10,
which includes several non-sworn police department classifications. The City and the
Association were parties to a Memorandum
of
Understanding (MOU), effective from
December 14, 2008 through December 24, 2011.
In an effort to balance the City's 2010-11 budget, in Summer 2010, City Manager
Jennifer Sparacino (Sparacino) approached the representatives
of
the City's ten bargaining units
for concessions in employee compensation. At the time, two
of
the City's bargaining units were
covered by MOUs that were set to expire in December 2010. Unit 10 was among the remaining
eight units whose MOUs would not expire until December 2011 or December 2012.
In subsequent negotiations with each of its bargaining units, the City proposed an across-
the-board 5.15 percent reduction in all employees' wages. In addition, for the two units whose
agreements would expire in December 2010, it proposed that employees forego any wage
increases in upcoming negotiations. For the remaining eight units, including Unit 10, whose
agreements were not set to expire until the following year or later, the City proposed that
employees forfeit all wage increases due under existing agreements. The City later modified its
position by proposing 96 unpaid furlough hours per year, instead
of
an across-the-board
5.15 percent wage reduction. However, it continued to propose that all bargaining units either
not seek wage increases in upcoming negotiations or, for those units who remained under
contract until the end of 2011 or 2012, to forego all previously-negotiated increases. The City
We summarize here only the pertinent facts for context. As discussed below, except
for the Association's allegations of disparaging and/or coercive statements, the evidence
presented was limited to a stipulated record and exhibits. Because neither party has excepted
to ALJ2's factual findings, they will not be distmbed and the parties are precluded from
excepting to the factual findings in the proposed decision.
3

estimated that through these proposed concessions, it would achieve approximately $650,000 in
cost savings from employees in Unit 10. It also advised the Association that,
if
not realized
through voluntary concessions, the City would lay off employees from Unit 10 to achieve these
cost savings.
Of
the eight unions under contract until 2011 or 2012, six agreed to forego 4.5 percent
salary increases and accept a 4.6 percent reduction in pay through furloughs. The Association
was one
of
the two employee organizations who refused to surrender previously-negotiated wage
increases and on or about January 16, 2011, the City laid off six employees from Unit 10.
In September 2011, the parties began negotiations for a two-year successor agreement but
were unable to reach agreement, particularly over issues
of
employee compensation. On
December 8, 2011, Attorney Edward Kreisberg (Kreisberg) provided the Association with the
City's last, best and final offer (LBFO), which provided for a 12 percent wage reduction over
two years for all Unit 10 members. The Association countered with no wage concessions and
$177,000 in future savings to be achieved through 72 unpaid furlough hours over the course
of
the two-year agreement. The City rejected the Association's proposal and on December 20,
2011, authorized implementation
of
the 12 percent wage reductions included in its LBFO.
On December 12, 2011, the Association filed an unfair practice charge with PERB. On
January 4, 2012, the Association filed its first amended charge.
On January 19, 2012, the City filed with PERB a position statement and request for
dismissal
of
the Association's charge. On February 6, 2012, the City filed a corrected position
statement and request for dismissal.
On May 4, 2012, PERB' s Office
of
the General Counsel issued a complaint which
alleged that the City had failed and refused to meet and confer in good faith during successor
4

negotiations in late Autumn 2011 and had interfered with the rights
of
the Association and
bargaining unit members by imposing terms and conditions
of
employment that were more
regressive than those obtained by the City from other units through negotiations.
On May 24, 2012, the City answered the complaint by denying the material allegations
and raising various affirmative defenses. In particular, the City's answer denied all allegations
included in Paragraph 4
of
the complaint, including the allegation that "during the period
immediately prior to the start
of
successor negotiations, by and through its managers and
supervisors, the City made a number
of
statements disparaging the [Association] for refusing to
engage in mid-term concession bargaining."
On July 3, 2012, the parties met at an informal settlement conference but did not resolve
the dispute. On the same day,
ALll
notified the parties that a formal hearing would begin on
October 8, 2012 and continue on October 9 and 10, 2012.
On October 5, 2012, the parties agreed to submit.the matter for decision on a written
record and cancelled the hearing set to begin on October 8, 2012 .. Correspondence from
ALll
memorializing the parties' agreement states that they "will be preparing a proposed schedule for
submission of joint stipulated facts and exhibits, declarations and closing arguments to the
Administrative Law Judge for his review and approval."
The parties agreed to the following schedule for the submission of evidence and briefs:
• 	Stipulated facts, exhibits and declarations on October 31, 2012
• 	Rebuttal declarations on November 9, 2012
• 	Briefs on November 28, 2012
• 	Reply briefs on December 7, 2012
5

After further refinements to the above schedule, on November 9, the parties submitted a
list
of
61 stipulated facts with 43 exhibits, primarily concerned with meeting dates and
bargaining proposals discussed during their negotiations and the pleadings and other documents
previously filed with PERB in this matter. None
of
the stipulated facts or exhibits referenced
any
of
the disparaging or coercive remarks attributed to City managers and officials, as alleged in
the charge and complaint. However, included with the stipulated facts and exhibits were sworn
declarations by, among others, bargaining unit members Deanna Black, Taylor Carpenter,
Melinda Sawin, and Michael Clark (Clark). Each
of
these declarations alleged that a City
manager or official had made remarks whose intended or likely effect was to convey that the
Association and/or Unit 10 members would suffer adverse consequences in successor
negotiations with the City, because
of
the Association's refusal to agree to concessions in their
previous negotiations. Also included among the documents submitted on November 9, 2012
were declarations by Sparacino, City
of
Santa Clara Director
of
Human Resources Elizabeth
Brown, City Finance Director Gary Ameling (Ameling), and Kreisberg, who served as Special
Labor and Employment Counsel and Chief Negotiator for the City
of
Santa Clara during its
negotiations with the Association.4
On November 21, 2012, the parties agreed to place the matter in abeyance pending
mediation before PERB scheduled for December 19, 2012. However, they also informed A1.J1
that they would submit rebuttal declarations and opening briefs, which could be used to assist the
PERB mediator.
4 Sparacino's declaration asserts, among other things, that the Association has falsely
informed its members that the City gave the Association the choice of layoffs rather than wage
concessions in the 2010 mid-term negotiations. Sparacino's and Ameling's declarations also
dispute certain assertions, which they attributed to the Association, about the state of the City's
finances when the 2011 successor negotiations began.
6

On November 27, 2012, the City submitted rebuttal declarations by Police Sergeant
Gregory D. Hill, Retired Chief of Police Stephen D. Lodge, Assistant Director
of
Human
Resources Tina Murphy, Human Resources Administrative Analyst Vanessa Maitland-Guerra,
and City Council Member Patrick 	Kolstad, in which these individuals denied making
intentionally or impliedly disparaging or coercive statements to Unit 10 members, as previously
alleged by the Association's witnesses.
Also on or about November 27, 2012, the Association submitted its own rebuttal
declarations by Clark, Peter Hoffmann, Robert "Lee" Jett, and Timothy Reilly, which disputed
the interpretation and some
of
the underlying facts regarding the 2011 successor negotiations, as
previously alleged in the City's declarations. Clark's declaration, for example, disputes
assertions by Kreisberg and other City declarants regarding the terms agreed to by other
representatives, which were then used as the basis for determining the degree of"parity"
proposed in negotiations with the Association. Several
of
the Association's witnesses also deny
that anyone speaking or acting on behalf
of
the Association made the statements about the City's
financial situation, as previously alleged in the City's declarations.
On December
6,
2012, the parties agreed to further extend the deadline for submission
of
briefs from December 12, 2012 to December 17, 2012.
On or about December 17, 2012, the parties filed opening briefs and on or about
January 16, 2013, they filed reply briefs.
With the matter fully submitted, on February 4, 2013,
ALll
notified the parties thatthe
case had been transferred to ALl2 who would review the record and prepare a proposed decision.
Neither party objected to the transfer.
7

On June 5, 2013, ALl2 issued his proposed decision.
On July 15, 2013, the Association filed a statement
of
exceptions to the proposed
decision, a supporting brief and a request for oral argument before the Board itself. The
Association states that since the record was closed and the matter submitted for decision,
subsequent events have transpired that mayinfluence the Board's ultimate decision on the issues
raised by the Association's exceptions and supporting brief and therefore requests that the Board
take further evidence into consideration.5
On September 4, 2013, the City filed its response and supporting brief.
DISCUSSION
Among the legal and procedural errors asserted by the Association is
ALl2's
refusal to
consider the Association's declarations, in which bargaining unit members alleged that in the
months leading up to the parties' 2011 negotiations for a successor agreement, various City
managers and officials made remarks to Unit 10 members that disparaged the Association and/or
implied the Association and Unit 10 mem~ers would suffer reprisals for the Association's refusal
to agree to concessions during the previous negotiations. The City's rebuttal declarations
categorically deny these allegations. The proposed decision explained that
AU2
refused to
consider the Association's declarations because the testimony was offered in the form
of
written
declarations rather than "live" testimony subject to cross-examination and credibility
Because we remand for further proceedings, we deny the Association's request for
oral argument before the Board itself. We leave to the
AU
on remand to determine the
appropriateness of any motion to amend the complaint and/or whether to permit new evidence
of events that allegedly transpired while this matter was pending before the Board.
8

determination, and because
of
their "disputed nature."6 The declarations and rebuttal
declarations were not part of the stipulated facts and the record contained no other evidence
of
the disparaging or coercive statements allegedly made by City managers and officials.
The Association argues that
AIJ2's
decision denied the Association its right
to
be heard
on issues beyond the stipulated record. Alternatively, the Association argues that
AIJ2
erred by
refusing to consider the Association's declarations, while apparently considering the contents
of
the City's initial and rebuttal declarations. For its part, the City argues that the parties were
permitted to submit written declarations in support of their cases "without any promise or
agreement as to their use in the determination of the issues," and that the Association thereby
assumed the
risk:
that its declarations would be excluded as objectionable. We
ag.ree
with the
Association that
AIJ2
erred in refusing to consider its dedarations and question whether the
parties should have been permitted to submit a disputed factual issue solely through competing
declarations.
ALJI was well aware that the Association's allegations
of
coercive or disparaging
statements were disputed, but nonetheless allowed the parties to proceed by way of declarations
and rebuttal declarations on disputed facts rather than live testimony. The Association was
blindsided by ALJ2's refusal to consider the declarations on two grounds, both
of
which ALJl
was already aware, i.e., the evidence was disputed and was presented in sworn declarations in
lieu of live testimony. Although
AIJ2
was not free to make a factual finding based on
As explained in the proposed decision: "Both parties' declarations contain hearsay
uncorroborated by other competent evidence, were specifically prepared for litigation, untested
by cross examination, not subject to rebuttal testimony, and presented by witnesses not
observed for credibility." At least one of these justifications ("not subject to rebuttal
testimony") was incorrect, since, as the proposed decision noted only a few lines earlier:
"An initial set of declarations were filed by each side, followed by rebuttal declarations on
both sides." (Proposed dee. at p. 23.)
9

uncorroborated hearsay (PERB Reg. 32176; Utility Reform Network
v.
Public Utilities
Commission (2014) 223 Cal.App.4th 945, 959-962; Hilmar Unified School District (2004)
PERB Decision No. 1725, p. 16), as the presiding Board agent, he had both the power and the
duty to "[i]nquire fully into all issues and obtain a complete record upon which the decision can
be rendered." (PERB Reg. 32170, subd. (a); see also State
of
California (State Personnel Board)
(2002) PERB Decision No. 1491-S, pp. 9-10.) Under the unusual circumstances of this case,
excluding the declarations was unfair to the charging party, whose burden it was to prove the
allegations of the complaint, and who had reasonably expected that the evidence
in
the
declarations would be evaluated for admissibility, competence and trustworthiness and not
categorically rejected because
of
the format in which it was received, given
ALJl 's
acquiescence
to the arrangement.
While we thus agree with ALT2 that, in the absence of any credible, reliable and
corroborating non-hearsay testimony, the Association's declarations were insufficient to make
factual findings in support of the allegations of disparaging or coercive statements made to
employees
(PERB
Reg. 32176; Scott
S.
v.
Superior Court (2012) 204 Cal.App.4th 326,342;
Bellflower Unified School District (2014) PERB Decision No. 2385, p. 9, review den. April 20,
2015, Case No. B257852), ALT2 was fully authorized by PERB Regulations 32207 and 32170,
subdivision (a),7 to give notice and convene a formal hearing to obtain live testimony on the
factual issues in dispute. We therefore set aside the dismissal and remand to the
ALT
to consider
7 PERB Regulation 32207 states: "The parties may submit stipulated facts where
appropriate to the Board agent. No hearing shall be required unless the parties dispute the facts
in the case." The three-member panel of the Board deciding this case agree that, under the
circumstances, PERB Regulation 32207 authorized ALT2 to order a hearing to resolve the
disputed factual issues regarding the complaint allegations of disparaging statements attributed
to City managers and officials. We reserve for another day whether the second sentence of
Regulation 32207 compels an ALT to convene a hearing when the facts are disputed.
10

the declarations and any exceptions to the hearsay rule that might apply and to take any further
action authorized by statute or regulation, including holding an evidentiary hearing on the
disputed
factu\11
issues raised by the parties' declarations.
While the remaining facts, as stated in the parties' stipulated record and set forth in the
proposed decision are not in dispute, after considering the declarations and taking any other
action necessary to inquire fully into the disputed issues and to develop a complete record, the
A1J may consider whether the declarations and any additional evidence alters any legal
conclusions regarding the allegations in the complaint. The
AU
may also consider the
Association's exceptions and the City's response to those exceptions, to ensure that the legal
conclusions included in the new proposed decision are free
of
any possible error. (Los Angeles
Unified School District (2014) PERB Decision No. 2359, p. 8, fn.10.)
ORDER
The dismissal
of
the complaint and underlying unfair practice charge in Case
No. SF-CE-904-M is hereby SET ASIDE and the matter REMANDED to the Division of
Administrative Law for further proceedings in accordance with this decision.
Chair Martinez and Member Winslow joined in this Decision.
11

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA PUBLIC SAFETY NON-
SWORN EMPLOYEES ASSOCIATION,
Charging Party,
v.
CITY OF SANTA CLARA,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-904-M
PROPOSED DECISION
(June 5, 2013)
Appearances: Rains, Lucia, Stem by Peter Hoffmann, Attorney, for Santa Clara Public Safety
Non-Sworn Employees Association; Meyers, Nave, Riback, Silver & Wilson by Edward L.
Kreisberg and Samantha W. Zutler, Attorneys, for City
of
Santa Clara.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Santa Clara Public Safety Non-Sworn Employees Association (PSNSEA) filed an
unfair practice charge against the City
of
Santa Clara (City) under the Meyers-Milias-Brown
Act (MMBA or Act)1 on December 12, 2011. An amended charge was filed on January 4,
2012. On May 4, 2012, the Office
of
the General Counsel
of
the Public Employment Relations
Board (PERB or Board) issued a complaint, alleging that the City: '(I) failed to meet and
confer in good faith during contract negotiations in the fall
of
2011; and (2) interfered with the
rights
of
bargaining unit members by imposing economic concessions that were more
regressive than those achieved in mid-term negotiations with other bargaining units after
1 The MMBA is codified at Government Code section 3500 et seq. Hereafter all
statutory references are to the Government Code unless otherwise indicated.

PSNSEA had elected not to make such concessions. 	This conduct is alleged to violate
sections 3503, 3505, and 3506 and PERB Regulation 32603(a), (b),' and (c).2
On May 24, 2012, the City filed its answer to the complaint, denying the material
allegations and raising affirmative defenses.
On July 3, 2012, an informal settlement conference was held, but the matter was not
resolved.
On October 31, 2012, the parties submitted a stipulated set
of
facts in lieu
of
a formal
hearin_g.
On January 22, 2013, the matter was submitted for decision with the filing
of
post-
hearing briefs.
On February 4, 2013, the case was reassigned from Chief Administrative Law Judge
Shawn Cloughesy to Administrative Law Judge Donn Ginoza for issuance
of
the proposed
decision.
FINDINGS OF FACT
PSNSEA is an "employee organization," within the meaning
of
section 350 l(a). The
City is a "public agency" within the meaning
of
section 3501 (c).
The parties stipulated to the following facts:
1.	
PSNSEA is the recognized exclusive employee organization, as that term is
defined in Government Code section 3501 (b), representing Bargaining Unit 10 ("Unit 1
O")
of
the City.
2. 	Unit 10 is comprised of employees in the classifications of: Communications
Dispatcher I; Communications Dispatcher II; Communications Dispatcher III; Senior
Communications Dispatcher; Community Service Officer I; Community Service Officer II;
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

Jail Service Officer; Fire Prevention Specialist; Police Records Specialist
I;
Police Records
Specialist IT; and Records Supervisor.
3. 	The City is a charter city subject to the Meyers-Milias-Brown Act, California
Government Code section 3500, et seq.
4. 	The City and PSNSEA were parties to a Memorandum
of
Understanding
(MOU) with effective dates
of
December 14, 2008 through December 24, 2011. (Stipulated
Exhibit 1.)
5.	
_ Qn Iune 2, 2010, City Manager Jennifer Span1cino_met with ~ach
of
th~
City's
ten employee bargaining units, including PSNSEA. During the meeting, City Manager
Sparacino presented the budget challenges for 2010-11, and in subsequent years, and requested
employees' assistance in addressing those challenges.
6. 	Subsequent to the June 2, 2010 meeting, the City met with all bargaining groups
individually to request concessions to help balance the 2010-11 budget.
7. 	For the 2010 concessionary discussions, the City was represented by Chief
Negotiator Eddie Kreisberg ("Kreisberg') and Human Resources Director Liz Brown.
Unit lO's representatives included Michael Clark, Lee Jett, and Troy Morgan.
8. 	On August 19, 2010, City representatives had the first in a series
of
meetings
with PSNSEA representatives to discuss the City's concerns with a FY 2010-11 budget
shortfall and projected deficits in subsequent years.
9. 	Kreisberg advised each
of
the bargaining units, including PSNSEA, that the City
sought reductions in employee compensation in order to balance that year's budget and address
the City's projected future financial challenges.
10. 	At the time these discussions began, eight (8) of the City's ten (10) bargaining
units, including PSNSEA, had MOUs with the City that expired in either December 2011 or
3

December 2012. The MOU between the City and PSNSEA expired in December 2011. 	Also
at the time, the Santa Clara Police Officers Association (POA) and the Santa Clara Police
Management Employees Unit had MO Us expiring on December 25, 2010.
11. 	Kreisberg informed PSNSEA that the City was requesting all employees agree
to the same concessions. Those concessions were: (1) all employees in closed contracts would
forfeit any wage increase scheduled for the 2010-11 MOU year, and all employees then
negotiating contracts would not receive a wage increase for the 2010-11 MOU year; and (2) all
empl~yee~
~ould
!iCcept
Ii
5_.
l?
percent
wa,ge
decrea§e.
12. 	During subsequent discussions with PSNSEA and the other employee groups,
the City modified its proposal to: (1) all employees in closed contracts would forfeit any wage
increase scheduled for the 2010-11 MOU year, and all employees then negotiating contracts
would not receive a wage in.crease for the 2010-11 MOU year; and (2) all employees would
accept 96 furlough hours per year. Kreisberg advised PSNSEA that the requested concessions
would equal approximately $650,000 in savings from Unit 10 employees.
13. 	Kreisberg advised PSNSEA that,
if
the City was not able to realize these savings
through voluntary concessions from Unit 10 members, the City would have to lay off members
of
PSNSEA in order to reach the required savings from PSNSEA. The City later identified six
(6) positions which,
if
laid off, would achieve this savings.
14. 	The City and PSNSEA were unable to agree on the requested concessions. 	The
City was also unable to reach agreement with IBEW.
15. 	The City reached agreement on the requested concessions with six (6)
of
the
City's eight (8) bargaining units with closed contracts. 	Those bargaining units were: IAFF
(Firefighters); Employees' Association; AFSCME; Miscellaneous Unclassified Employees;
Engineers; and Fire Management. (Stipulated Exhibits 3-8.)
4

16. 	During this same time period, the City concluded negotiations with the POA and
Police Management employee groups on successor MOUs. Each MOU included provisions
wherein members would take 96 furlough hours, and receive no wage increases, for the 2011
and 2012 MOU years. (Stipulated Exhibits
9,
10.)
17. 	Each concession agreement was memorialized in either an MOU extension (for
the groups in closed contracts), or a new MOU. Each MOU extension included a "contingency
requirement," wherein the City agreed that,
if
the combined total
of
actual collections for
cet!_ain
reve~ue_so_grces wasJ 1·million gi-eater than the. City's the11-current estililates, the J:ity _
and employee group would meet and confer regarding whether or not the City would agree to
reduce the number
of
furlough hours for the 2012 calendar year. (Stipulated Exhibits 3-8.)
18. 	The City laid
off
six PSNSEA members on or aboutJanuary 16, 2011.
19. 	On September 7,2011, City Manager Jennifer Sparacino sent correspondence to
representatives
of
the bargaining units that had agreed to mid-contract concessions,
acknowledging that the City had achieved the economic triggers identified in the "Contingency
Requirements."
20. · 	On September 29, 2011, Liz Brown directed correspondence to PSNSEA
President Michael Clark requesting that the parties commence negotiations for a successor
MOU. Brown's letter included the City's initial proposals. (Stipulated Exhibit 2.)
21. 	PSNSEA provided its initial proposals via letter on Octa ber 7, 2011. (Stipulated
Exhibit 11.)
22. 	On October 19, 2011, the parties conducted their first day
of
negotiations for a
successor MOU.
23. 	At that meeting, the parties provided language for their initial proposals.
(Stipulated Exhibits 13, 16.)
5

24. 	Included among the City's proposals on October 19, 2011 was an eighteen
percent (
18
percent) wage decrease, a new pension formula for future hires, and proposals on
leave time usage, holiday pay, discretionary health and dental allocations, night differential
pay, psychological counseling, overtime, uniform allowance, voluntary employee beneficiary
association (VEBA), lay-off policy, and the date for exchanging proposals for negotiations for
the next MOU.
25. 	Kreisberg explained that the reason for the proposed
18
percent wage decrease
was_
that empJo~ee~ inother units did not
rec_eive
a 4.6
percentsal_11ry
increaseJ4.5 percent total~
compensation) in the 12/10-12/11 MOU year, and had taken 96 hours-approximately
4.6
percent-worth
of
unpaid furloughs, for a difference
of
a little over 9 percent. Kreisberg
further explained that, absent the proposed wage decrease, this 9 percent difference in take
home pay between Unit 10 employees and employees in other units would occur again in the
12/11-12/12 MOU year, for a total difference
of
18
percent over the two year period.
26. 	On November 1, 2011, the parties met for the second time as part
of
these
negotiations; PSNSEA provided a revision to its initial proposals and a formal response to the
City's initial proposals. (Stipulated Exhibits 17, 18.)
27. 	On November 16, 2011, the parties met for the third time as part
of
these
negotiations. At that meeting the City provided PSNSEA with a revised comprehensive
proposal. As part
of
its revised proposal, the City proposed a 12 percent wage reduction.
(Stipulated Exhibit 20.)
28. 	Kreisberg stated that the method by which the City arrived at the 12 percent
wage reduction did not lend itself to an exact mathematical calculation, and stated that its
. proposal was primarily a reduction from 18 percent the City hoped would lead to an
agreement. Kreisberg explained that the City has started with the previously proposed
6

18 percent wage reduction, and reduced its proposal by the approximate 4.6 percent in
furloughs that the other units had taken in the 12/10-12/11 MOU year, in recognition that
Unit 10 employees had not had time
off
that corresponded to those unpaid furlough hours.
An additional 0.8 percent was recognized as the anticipated reduction
of
the other units'
furlough hours from 96 hours to 80 hours (i.e. a change from 4.6 percent to 3.8 percent) in the
12/11-12/12 MOU year. The remaining 0.6 percent was not directly attributed to any one
specific reason.
29. 	_
~e~bt?rg
suggested that,
eve11
with a 12 p~c~nt wage decretise,, PS-NfiEj\ _
employees would do better as far as take-home pay than other City employees, during the two
year period. The PSNSEA responded, stating that PSNSEA members would work more hours
than other employees and receive less pay.
30. 	During the November 16, 2011 meeting, Kreisberg stated that the City wanted
to complete negotiations before the contract expired on December 24, 2011.
31. 	Kreisberg acknowledged that, during his time as Chief Negotiator, while the
City had tried to complete negotiations by the expiration date
of
the contract, there were
instances when that had not occurred, including negotiations with PSNSEA
32. 	During the November 16, 2011 meeting, the parties acknowledged that they had
only one additional meeting date scheduled (set for November 22, 2011).
33. 	Hoffmann requested to schedule additional dates, but Kreisberg asked to select
additional dates at the following meeting in order to allow sufficient time to see
if
an
arbitration scheduled in an unrelated matter would settle.
34. 	During the course of negotiations, the City Council agreed to reduce the number
of
furlough hours for the six bargaining groups who had agreed to mid-contract concessions,
and reduced their furloughs from 96 hours to 72 hours. Concurrently, the City Council also
7

agreed to an equal reduction
of
furlough hours for the sworn personnel represented by the POA
and Police Management, who had agreed to concessions in MOU negotiations, but were not
subject to a contingency agreement.
35.	
On
November 22, 2011, the parties met for the fourth time as part
of
these
negotiations.
36. 	At the beginning
of
the November 22, 2011 meeting, Hoffmann noted that the
parties still did not have any additional meetings scheduled, and requested that the City advise
of
its avai!_abjlity
tQ
meet_~u1111:g
the month 9f_Decem_l,er. _N'ei§berg again 9it~dJb.e potential_
__
	_
scheduling conflict with an unrelated arbitration, but stated that he would know by the
conclusion
of
that meeting what his availability would
be
in the coming weeks.
37. 	During the November 22nd meeting, Hoffmann advised Kreisberg that PSNSEA
would be hosting a general membership meeting on December 5, 2011, in order to advise
Unit 10 employees
of
the status
of
negotiations.
38. 	PSNSEA bargaining team members had been informally discussing negotiations
with other members throughout the negotiations process. However, December 5, 2011 was the
first time PSNSEA held a general membership meeting to discuss the status
of
the 2011
negotiations.
39. 	During the November 22, 2011 meeting, Kreisberg again confirmed the basis for
the City's proposed 12 percent wage reduction.
40. 	Kreisberg also informed PSNSEA that the City had reduced the other units'
furlough concession by 24 hours, rather than the 16 hour estimate,
41. 	Kreisberg also confirmed that the employees represented by Unit 2 (POA)
would receive the benefit of this furlough reduction, despite the fact that their MOU did not
include the same trigger language as MOU extensions that required the City to discuss this
8

issue. Kreisberg stated that the City determined the POA would receive the same. furlough
reduction as the rest
of
the bargaining units that agreed to concessions because the City wished
to treat POA members the same as other employees who experienced pay reductions.
42. 	At the November 22 meeting, PSNSEA presehted its "First Comprehensive
Proposal." (Stipulated Exhibit 21.
)3
43. 	At the conclusion
of
the November 22, 2011 meeting, Hoffmann again sought
the City's availability to schedule additional meeting dates. Kreisberg acknowledged that he
was_
still
una'l,Vat'_~
of
the status
of
his
sc!i-ed1.tled
arbitratiori) anq
as_k~d
to_comact
HoffQJ.anri__
once he determined the status
of
his conflicting arbitration.
44. 	On December 6, 2011, Kreisberg notified Hoffmann via e-mail that the City was
available to meet December 7, 8, 9, or any day the following week. On the same day,
Hoffmann responded, and stated that Unit 10 would not be available until the following week,
and preferred to meet the following Friday, December 16, 2011 to accommodate the schedule
of
one
of
PSNSEA's bargaining team members. (Stipulated Exhibits 25, 26.)
45. 	In the evening
of
December 5, 2011, PSNSEA held a general membership
meeting advising its members
of
the status
of
negotiations.
46. 	Between December 5, 2011 and December 21, 2011 Kreisberg and Hoffmann
exchanged e-mails and voice-mail messages regarding the status
of
negotiations, potential
meeting dates, impasse, PSNSEA's membership meeting on December 5, Hoffmann's meeting
3 PSNSEA proposed a conditional adjustment
of
compensation: 	a furlough plan
of
80 hours in exchange for restoration
of
three bargaining unit positions and restoration
of
the
staffing levels from 2010. (In its October 25, 2011, position paper to the City Council
opposing the City's economic proposals, PSNSEA argued that the City realized approximately
$950,000 in savings due to the layoffs and reduced overtime-$300,000 of
the total due to
paring back
of
minimum staffing levels.) The union also made a conditional proposal to accept
a two-tiered retirement plan for new hires, implementation contingent upon agreement of all
other miscellaneous units. It noted two tentative agreements and conditionally withdrew three
of its proposals.
9

with PSNSEA's membership, and Kreisberg discussions with the City Council. Copies
of
all
correspondence can be found at Stipulated Exhibits 22, 25-29, 31-34, and 37.4
47. 	On December 8, 2011, Kreisberg sent correspondence via e-mail to Hof:finann
providing the Respondent's last, best and final offer ("LBFO"). (Stipulated Exhibits 27, 28.)5
48. 	Kreisberg further advised
of
the City's intent to impose the terms set forth in the
LBFO at an impasse hearing scheduled for December 20,201
l,
should the PSNSEA reject the
City's offer.
4 Hoffman's December 9, 2011, e-mail to Kreisberg asserts that the parties were not at
impasse after four meetings and the submission
of
two proposals on each side. Hof:finan
dismissed the City's movement on its wage concession proposal because the initial proposal
was "so outrageous, it appears to have been nothing more than an attempt at 'shock and awe'"
and because the City failed to correlate the wage reduction proposal to any economic need.
Kreisberg's December 12, 2011, e-mail responding to Hof:finan's, asserts that the union should
recognize the parties are at impasse because
of
the union's rejection
of
the City's "bottom line
position" on wages, and that the parties had "exhaustively discussed the subject
of
wages"
since the City's initial
18
percent proposal on September 29. These discussions followed the
City's "repeated" explanation
of
the rationale for a wage decrease (of at least 12 percent) based
on "treat[ing] employees in PSNSEA fairly as compared to employees in other bargaining
units over a two year period (12/10
-12-12),"
the union's rejection
of
the rationale, and its
assertion that it would never agree to a 12 percent decrease even after being told that the City
Council had compromised as far as it was willing. Kreisberg stated the City would entertain a
new union proposal on December
16
(Stipulated Exhibit 36) while noting that it had waited
two months for a union proposal that when received offered a
"O
percent change on salary."
Attempting to explain its last economic proposal, Kreisberg wrote:
In simplistic terms,
if
we assume all employees were making
$100 before the current 12/10
-12/11
MOU year, employees in
other units took home $95.40 this MOU year (due to no salary
increase and taking furloughs) and will take home $96.20 next
year (due to
~he
same salary and continuing furloughs), for a total
of
$191.20. In contrast, a PSNSEA employee took home $104.60
(due to the salary increase and no furloughs) this MOU year and
under the City's salary proposal would take home $92.40 this
coming MOU year for a total of $196.65.
5 Kreisberg noted in correspondence to Hof:finan that the City had withdrawn proposals
on holidays, uniform allowance, chemical testing, layoff policy, and compensatory time off,
and was willing to resolve issues on maximum compensatory time accruals and the scheduling
of time-off requests.

49. 	Unit 10 filed the original Unfair Practice Charge at issue in this matter on
December
9,
2011. (Stipulated Exhibit 30.)
50. 	After further communication between Hoffmann and Kreisberg and in response
to Unit
l0's
expressed concerns that the impasse hearing then scheduled on December 20
would not give PSNSEA sufficient time to discuss the City's proposal with PSNSEA's
members, on December 13, 2011, Kreisberg advised via e-mail correspondence that the City
Council had agreed to delay the proposed impasse hearing until December 2 7, 2011.
(Stipulated Exhibit 34.)-
51.
-	
~
On December 16, 2011, the parties met for the fifth time as part
of
these
negotiations.
52. 	During the December
16
meeting, Hoffmann informed the City bargaining team
that PSNSEA's membership had rejected the City's last, best and final offer. Hoffmann also
presented PSNSEA's "Comprehensive Proposal 12-16-11." (Stipulated Exhibit 36.)6
53. 	During the December 16, 2011 meeting, Kreisberg informed PSNSEA that the
City Council was scheduling a special closed session on Tuesday, December 20, 2011 to
consider PSNSEA's proposal.
6 The union's proposal dropped its demand for restoration
of
any of the positions laid
off in 2010 as well as the prior staffing levels, but claimed credit for $650,000 in cost savings
based on the six bargaining unit positions laid off.
It
proposed an additional $177,000 by
accepting 72 unpaid furlough hours during 2012 and 2013.
It
removed the contingency for the
two-tiered pension plan and offered a new entry level step of the salary schedule.
It
agreed to
City proposals on the use of personal leave and an overtime meal payment.
It
made a
compromise proposal on preferred compensated time off and maintained a previous proposal
on alternate work schedules. It acknowledged tentative agreements on maximum accruals of
compensated time off and the scheduling of time-off requests. It conditionally withdrew
proposals on classification of job responsibilities, sick leave incentives, retirement service
credit, grooming and a job title.
11

54. 	On December 21, 2011, Kreisberg notified Charging Party via e-mail
correspondence that the City Council had rejected PSNSEA
's
December 16th proposal, in part
because it did not agree to any wage decrease. (Stipulated Exhibit 37.)
55. 	On Tuesday, December 27, 2011, the Santa Clara City Council conducted a
public hearing on the impasse. The impasse hearing had been properly noticed and included a
staff report from the City Manager to the Council that included the parties' last proposals.
(Stipulated Exhibit 38.)
56. 	At the impasse hearing, PSNSEA requested that th~City_Council vote to r~ecJ
__
the City Manager's recommendation to impose the terms set forth in the City's last, best, and
final offer, and in the alternative, vote to: 	(1) accept the PSNSEA's December 16th proposal;
or (2) instruct the parties to resume negotiations; or (3) instruct the parties to engage in
mediation: or (4) instruct the parties to engage in non-binding fact-finding.
57. 	At the close
of
the December 27 hearing, the City Council voted to impose the
terms and conditions set forth in the City's last, best, and final offer. (Stipulated Exhibits 39,
40.)
58. 	On January 13, 2012, PSNSEA filed its Amended PERB Charge. (Stipulated
Exhibit 40.)
59. 	On January 19, 2012, the City filed its Position Statement and Request for
Dismissal
of
PSNSEA's charge. (Stipulated Exhibit 41.)
60. 	On May 4, 2012, PERB issued a Complaint in this matter. (Stipulated
Exhibit 42.)
61. 	On May 23, 2012, the City filed its Answer to the Complaint in this matter.
(Stipulated Exhibit 43.)
12

A total
of
43
stipulated exhibits were entered in the record, but are not described herein
except to the extent noted above.
ISSUES
(1) 	Did the City engage in surface bargaining in negotiations with PSNSEA for the
successor MOU to the one expiring on December 24, 2011?
(2) 	Did the City discriminate against PSNSEA and its bargaining unit members by
imposing economic concessions which it had previously been unable to achieve during the
te~
of
the ere~io~s
:t\1:OU?
CONCLUSIONS OF LAW
Surface Bargaining
The first theory
of
the complaint is that the City violated its duty to meet and confer in
good faith based the totality-of-the-circumstances test. (See Placentia Fire Fighters
v.
City
of
Placentia (1976) 57 Cal.App.3d 9, 25.) The totality-of-the-circumstances test applies in cases
of
surface bargaining, where one
of
the parties "goes through the motions
of
negotiations" but
displays a lack
of
"genuine desire to reach agreement." ( City & County
of
San Francisco
(2007) PERB Decision No. 1890-M, pp. 10-12; Muroc Unified School District (1978) PERB
Decision No. 80, p. 13; Oakland Unified School District (1982) PERB Decision No. 275,
pp. 15-16.)
PERB has identified a number
of
indicia
of
surface bargaining, including: (1) entering
negotiations with a "take-it-or-leave-it" attitude (General Electric Co. (1964) 150 NLRB 192,
194, enf. (2d Cir. 1969) 418 F .2d 736); (2) unwillingness to schedule meetings ( Oakland
Unified School District (1983) PERB Decision No. 326); (3) failure to exchange reasonable
proposals and reconcile differences (Gonzales Union High School District (1985) PERB
Decision No. 480); (4) making predictably unacceptable proposals (San Bernardino City
13

Unified School District (1998) PERB Decision No. 1270 (San Bernardino)); (5) conditioning
agreement on economic matters upon prior agreement on non-economic matters (State
of
California (Department
of
Personnel Administration) (1998) PERB Decision No. 1249-S);
(6) reneging on tentative agreements
of
the parties (Charter Oak Unified School District
(1991) PERB Decision No. 873); (7) refusing to provide information (Stockton Unified School
.District (1980) PERB Decision No. 143); and (8) regressive bargaining (Pajaro Valley Unified
School District (1978) PERB Decision No. 51).
Surf~e
_Eariainin~ cases often
r~qui_I'_e
PERB t~distinguish between
unla._\\fibl
bad
faj_th_~
bargaining and lawful "hard bargaining," which involves the adamant maintenance
of
a
legitimate position. (Oakland Unified School District, supra, PERB Decision No. 275;
NLRB
v.
Herman Sausage
Co.
(5th Cir. 1960) 275 F.2d 229; compare NLRB
v.
A-1 King Size
Sandwiches, Inc. (11th Cir. 1984) 732 F.2d 872, 874.)
The complaint identifies the indicia as: (1) recalcitrance in scheduling meetings,
(2) imposing an artificial deadline on negotiations, (3) refusing to entertain concessions from
the union unless they contained salary reductions, and (4) through its managers and supervisors
making statements disparaging PSNSEA for refusing to engage in mid-term concession
bargaining. In its post-hearing briefing, PSNSEA adds claims that the City failed to
demonstrate a genuine desire to reach agreement for the successor MOU and made a
predictably unacceptable proposal in the form
of
the
18
percent wage reduction, later reduced
to
12
percent.
The City responds by claiming that it declared impasse after four unproductive sessions
centered on the City's proposal for a wage decrease, because further meetings would have been
futile in light
of
PSNSEA's refusal to consider a wage decrease
of
any magnitude.
14

The surface bargaining allegations will be addressed in the order presented by PSNSEA
in its post-hearing brief.
A. 	Predictably Unacceptable Proposals
PSNSEA relies on San Bernardino, supra, PERB Decision No. 1270 for guidance on
what constitutes a predictably unacceptable proposal. In that case, the employer proposed to
remove a two-decades-old contract provision on union security as well as provisions related to
changes in assigned time and calendar adjustments. PERB concluded the proposals were
predictabJy UI'la~eR_table because the tmpl2yerJ, dti(;!f I1eKotiat9r Jail~<l to
eJ{plaiI!
at
ihe
hearing how the proposals on union rights related to the bargaining objectives defined for him
by his principal or any other concerns
of
the employer. 	Removal
of
the union security
provision was particularly offensive because it threatened the viability
of
the union. 	The City
maintains that the cited case is distinguishable from this case.
The argument can certainly be made that an
18 percent wage decrease constitutes a
predictably unacceptable proposal in normal circumstances. But the years in question here
were not normal in terms
of
the financial health
of
California's cities and counties. The impact
of
the Great Recession
of
2008 is unprecedented in modem times. Its effects on public
employers are still being felt today. During this period employers typically weathered the
initial effects by eliminating non-essential expenditures, :freezing vacant positions, tapping
reserves, reducing staff through layoffs, imposing temporary furloughs, and offering early
retirement incentives. Often these measures preceded demands for wage concessions. The
economic downturn had particularly adverse effects in terms
of
the employer's pension
obligations as enhanced benefits granted earlier in the decade were coupled with significant
erosion
of
pension fund holdings as a result
of
losses in the financial markets. (See, e.g., J.
Holtzman, Declarations
of
Fiscal Emergency: A Viable Option as Cities and Counties Fight
15

to Maintain Essential Services, California Public Employee Relations Journal, No. 204.)
Where contracts included wage increases, the escalating pension obligations were particularly
burdensome. (Stipulated Exhibit 14.) Documents in the record reveal that the City's finances
are consistent with many other MMBA employers. Here, two years into the recession and after
granting raises
in
both those years to its employees, the City sought and obtained significant
mid-term salary concessions from the vast majority
of
its unions in order to shore up its
financial statements and address deficits projected in the future. The City's desire to spread
the
_concessi.Qn§_
egui!ftbly across thel,arg~i_nigg units
a11dJh~
~ircum~t@~e_9(ob_tair1ingmJd_: _
term concessions adequately explains the magnitude
of
the proposal made to PSNSEA in the
2011 negotiations.
PSNSEA claims that City's proposal was unsupported by a legitimate economic
justification based on a "multi-million dollar improvement in economic circumstances" after
2010 and because
of
monies saved through the City's layoff
of
the six bargaining unit
positions. Without a more fully developed record it is not possible to conclude that the City's
salary concession proposal was pretextual in terms
of
its economic situation. The record does
suggest that there were additional savings that can be attributed to Unit 10 as a result
of
the
layoffs. However, without disclosing the entire budget and the extent to which savings were
achieved elsewhere, a true comparison
of
the scope
of
Unit lO's concessions cannot be
undertaken. Further, only a modest rebound in the City's overall :financial condition would not
necessarily obviate the need for additional austerity measures on the City's part. Also, the fact
that the City had achieved near unanimous wage parity would have created a powerful
incentive to preserve that structure by achieving participation from the holdout unions. The
fact that the City granted a modification to the furlough requirement for police officers despite
the absence
of
the contingency language in the other MO Us, rather than suggesting favoritism
16

toward those units agreeing to concessions, demonstrates the City was consistent in pursuing
its goal
of
achieving wage parity.
This case is distinguishable from San Bernardino, supra, PERB Decision No. 1270.
PSNSEA identifies only one proposal that was suspect and does not claim that the City failed
to provide a rationale for multiple subjects. As to the salary decrease proposal, the City was
forthright and clear in explaining a rationale, one that was grounded in actual circumstances.
There were tentative agreements and movement on the other subjects in the negotiations.
Evigence is
~eking
th1:11the
~ity~,c}1il>ite-9_cU1iJ11usj-Qw-_a,r<i
the_ba_rgainingpro~e$S
basedon
th_e
	_
nature
of
its proposals.
B. 	Lack
of
Genuine
Intent/
Refusal To Entertain Proposals
Lack
of
genuine intent is typically understood to be the ultimate issue in a surface
bargaining test, not a particular indicium
of
bad faith. Nevertheless, PSNSEA couches this
argument in terms
of
the City's "take-it-or-leave-it" attitude (General Electric Co., supra,
150 NLRB 192, 194), as well as the City's refusal to entertain PSNSEA proposals designed to
address the City's bargaining objectives. PSNSEA asserts that the City "demonstrated an
unwavering intent to quickly impose concessions that were significantly more regressive than
.the terms and conditions negotiated with bargaining units that had accepted mid-contract
concession agreements in 2010, by retroactively compounding the concessions offered by
those other bargaining 1mits," (original italics) and by "disregarding the union's two proposals,
despite the fact that each provided salary reductions equal to the ongoing concessions provided
by the City's other bargaining units." In addition, none
of
the other units offered a "long-term
solution to labor costs in a manner that PSNSEA offered (i.e., by expanding the salary step-
schedule-an effective 5 percent wage reduction for each new employee or the first five or
more years of their employment."
17

The argument that the City's proposal was significantly more regressive than the
concessions obtained from the other units rests on the premise that equitable treatment required
the City to give PSNSEA full credit based on the savings from the layoffs. Throughout the
negotiations PSNSEA insisted that the savings
of
the layoffs amounting to $650,000 achieved
all
of
the savings the City would have obtained from the proposed mid-term concessions. The
City never explicitly refuted this argument during the negotiations. Instead it focused on the
issue
of
internal wage parity and the additional take home pay the unit members had received
an<!_
would
c2_ntinue
to recei~e without
cC>_nc~~~ons
011_s~lar~
	Q11_
th~ ot4~rjland, J>BNSJ3bha~ _
identified nothing in the record refuting the City's analysis
of
the relative take-home pay status
of
the Unit 10 employees vis-a-vis other represented employees. PSNSEA also asserts that the
City's parity justification is disingenuous because other units had received relatively greater
wage increases over the span
of
years prior to the demand for economic concessions. 	This
point is disputed by the City. In an e-mail responding to an information request, the City
presented a comparative history
of
the wage increases
of
all the units over the past decade.
The City's representative concluded that Unit 10 had the highest average salary and total
compensation increases among the miscellaneous bargaining units. (Stipulated Exhibit 19.)
·The record here fairly establishes that the inability to achieve a contract stemmed from the lack
of
agreement on both sides for the framework for a resolution
of
dispute over wage rates rather
than a take-it-or-leave-attitude on the part
of
the City.
The record also fails to demonstrate that the City refused to entertain PSNSEA's
proposals. Following PSNSEA's initial proposal, as amended on November 1, the City
responded with its November 16 comprehensive proposal that reduced the initial 18 percent
salary concession demand to 12 percent. At the November 22 meeting, the City extended the
same reduction in the planned furlough to PSNSEA that had been granted to the other units.
18

PSNSEA's second comprehensive proposal
on
December 16, 2011 was not rejected
unilaterally by Kreisberg, but presented to the City Council for its consideration on
December 20.
What PSNSEA really seems to argue is that the City could not have legitimately
refused to accept its proposals, or at least seen them as moving the parties toward settlement.
But, as to the City's principal goals
of
rolling back a salary increase that others had not
received and would continue not to receive, and recouping the increases Unit 10 employees
.
h~received~
~NSEi':Vs
re~onse
was_
aJil"!ll reiectie>n
~e>f
these_gQal§
cllld
a COUl!terproposal
~
··~
for furlough days going forward that would generate a relatively small savings
of
$117,000.7
This speaks again to the philosophical difference over the issue
of
internal wage parity that
separated the parties from the beginning. None
of
this minimizes the magnitude
of
the
concessions in absolute terms, particularly the City's demand that the past "overpayment" be
recouped in the space
of
one two-year MOU. 8 But PSNSEA never signaled a willingness to
accept the concept
of
recoupment in any form, much less contingent upon a longer period
of
recovery.
The City, through Kreisberg's December 12, 2011, e-mail to Hoffman, did provide the
union with an explanation for the City's rejection
of
PSNSEA's two wage proposals. It was
based on the union's categorical rejection
of
any reduction in salaries to achieve internal wage
7 PSNSEA asserts that the City "grossly misrepresents" the facts when it claims the
union was unwilling to compromise on the wage concession, citing its offer
of
a 3.5 percent
wage decrease. Presumably this refers to its own furlough plan. Still, there was never any
concession offered on the salary rate, which carries with it greater obligations to the City in
terms ofretirement benefits and greater benefits to the employees, or on the recoupment
proposal.
8 To PSNSEA's credit, the 18 percent opening proposal appears to compound the
recoupment in that the one-year overpayment of 9 percent would be recovered in the first year
of the two year contract but continue into the second year as well. Recoupment of the
9 percent overpayment spread over a two-year term would amount to a 13.5 percent decrease
each year (9.0 plus 4.5 percent (i.e., one-half of 9.0 percent)).
19

parity. Nothing
in
the record indicates that Kreisberg's communication
of
the City CounciPs
bottom-line position was not genuine in light
of
the City's principal goal in the bargaining.
Because the parties began from divergent starting points with little or no common ground by
which to achieve a compromise, the City cannot be solely blamed for the lack
of
movement
toward an accommodation
of
the parties' diametrically opposed positions.9 The union's
proposal to add a lower step
on
the salary schedule would likely have yielded negligible
savings due to the City's inability to hire significant numbers
of
new employees.
C. 	Recalcitrance Jn Scheduling
.tvi:eetings
--
Between September 29, 2011, when the City forwarded its initial bargaining proposal,
and December 27, 2011, when the City Council determined the parties were at impasse, the
parties met for five negotiating sessions. These sessions occurred
on
October 19, November 1,
November 16, and November 22, 2011. The City offered to meet
on
December 7, 8, or 9 or
any day the following week. PSNSEA stated its preference for December 16. The City
transmitted its last, best and final offer by e-mail on December 8, triggering PSNSEA' s filing
of
the unfair practice charge. The parties met on December 16, at which time PSNSEA
presented its second comprehensive proposal.
PSNSEA contends the City rejected "repeated requests
...
to schedule timely
negotiations meetings and continue negotiations in light
of
the significant change in
circumstances resulting from PSNSEA's December 16th comprehensive proposal." The record
does not substantiate this claim. It contains no evidence that multiple requests for meetings
were rejected. On one occasion, at the November 16 meeting, Kreisberg postponed setting
9 PSNSEA asserts that an analysis
of
its second counterproposal demonstrates that it
made "significant" compromises on "every single item" included in the City's last, best, and
final offer. While the proposal does show movement on many items, the movement on the
issue of the wage concession cannot be considered so significant as to suggest a prospect of
reciprocal movement on the part of the City.
20

new dates citing a potential conflict with the arbitration hearing. While it is true that the delay
in
scheduling multiple future meeting dates at the end
of
November might have been
suspicious in comparison to typical successor contract negotiations given the small number
of
sessions to that date, nothing else in the chronology carries this theory forward. The City's
failure to offer more dates prior to December 21 is more logically the result
of
PSNSEA's
rejection
of
the City's last, best and final offer at the December 16 meeting, than the feigned
inconvenience
of
scheduling during the holiday period or a lack
of
desire to engage the union.
Kreisberg_ w~s not_anti~ipatingfurtl!~r author!_ty from hispr!_ncipajs~
J:3ased
on
the manner in
	__
_
which it argues this point in its post-hearing brief, PSNSEA is really asserting the impropriety
of
the City's decision to present its last, best and final offer and proceed to an impasse hearing
when its concessions were significant enough to preclude impasse. This question is analyzed
in the next section.
D. 	Imposing an Artificial Deadline on Negotiations
PSNSEA contends that the City was motivated, not by a sincere desire to resolve
differences at the bargaining table, but by the desire to conclude negotiations, impose the
desired economic concessions, and prematurely declare impasse prior to January
1,
2012, when
Assembly Bill No. 646 would have taken effect mandating factfinding upon request
of
the
union and eventual production
of
a public document revealing the state
of
the parties'
negotiations.
In response, the City relies on PERB Regulation 32793(c), setting forth factors PERB
employs in determining the existence
of
impasse: (1) the number and length
of
negotiating
sessions between the parties, (2) the time period over which negotiations have occurred, (3) the
extent to which the parties have made and discussed counterproposals to each other, (4) the
extent to which the parties have reached tentative agreement on issues during negotiations,
21

(5) the extent to which unresolved issues remain, and (6) other relevant data. 	The City asserts
that evidence
of
the parties "meaningful" attempts to reach agreement is ultimately the most
important factor. And it relies
on
California State University (1990) PERB Decision
No. 799-H, which noted that the possibility
of
further concessions on minor issues may be
inconsequential
if
the parties are deadlocked on one or several major issues.
As noted above, the bargaining history, especially a comparison
of
the parties'
proposals, establishes that the parties became deadlocked
on
the major issue
of
the effective
wa1se
rate
fo_i:
emp!_o~ees. Notwithstandip.g__!}le relatiy~l~ few l:>~g~inil}g~e~ion§, tli~eJvas a
__
.
principled difference between the parties over the importance and/or necessity
of
internal wage
parity. PSNSEA would have understood from the failed mid-term negotiations in the previous
year and the context
of
the current negotiations that this was the City's most important issue.
The lack
of
potential further movement towards a resolution is reflected in the union's second
proposal. This comprehensive proposal lists several tentative agreements, the withdrawal
of
several
of
its previous proposals, and a conciliatory position on a number
of
minor subjects.
	It
confirms that the non-salary issues remaining on the table were
of
relatively small magnitude
in comparison to the wage concession issue. Despite the absence
of
evidence
of
the precise
number
of
hours
of
negotiations, these factors can explain why only five negotiating sessions
over three months may have been sufficient for the parties to reach impasse. 	The parties
moved closer to each other or resolved all
of
the remaining issues except salary, as to which
they remained far apart. The evidence supports the City's view that there was little prospect
of
further movement on the wages issue that was needed to lead toward a resolution
of
the
negotiations.
It is common for parties not to complete negotiations prior to the expiration
of
the
preceding agreement. It is also common for an employer seeking concessions to set a goal for
22

the completion
of
negotiations in order to maintain the pace
of
negotiations where the union is
unlikely to be motivated to complete bargaining given the lack
of
prospects for improvements
to its contract. Though the coincidence
of
the AB 646 requirement does raise some additional
suspicion about the City's goal to conclude negotiations before the end
of
the year, based on all
the relevant circumstances, fear
of
proceeding to factfinding does not appear to constitute a
significant incentive for the City to avoid good faith negotiations over the terms in dispute.
The timing and existence
of
a legitimate basis for the City to believe the parties had reached
impasse defeats the claim
of
bad faith.
The complaint's allegation that the City refused to entertain concessions from the union
unless they contained salary reductions is simply a restatement
of
PSNSEA' s argument
of
premature declaration
of
impasse and needs no further analysis.
E.	
Disparaging Statements
Nothing in the stipulated record refers to the alleged disparaging statements. 	These
statements, which suggested that management employees bore animus toward PSNSEA
because
of
the union's refusal to make concessions in 2010, were included in declarations filed
by PSNSEA. Without any promise or agreement as to their use in the determination
of
the
issues, the parties were permitted to submit written declarations in support
of
their cases
despite also agreeing to have the case decided on a stipulated record. An initial set
of
declarations were filed by each side, followed by rebuttal declarations on both sides.
PSNSEA's declarations will not be considered given the absence
of
live testimony and their
disputed nature. Both parties' declarations contain hearsay uncorroborated by other competent
evidence, were specifically prepared for litigation, untested by cross examination, not subject
to rebuttal testimony, and presented by witnesses not observed for credibility.
23

F. 	Totality
of
the Circumstances
The City came to the successor negotiations with a firmly held goal
of
achieving
economic concessions it believed were necessary to achieve internal wage parity. These
concessions were undoubtedly
harsh-perhaps
even unprecedented for employees in
PSNSEA's
unit-and
the union may have been entitled to view the amount demanded as
excessive. However, rather than being motivated by whim or caprice, the City's bargaining
objectives did contribute to repairing its weakened financial condition and its wage proposal
wa~
measurej
~
an external standard
(i_.e.,_!_h~
amoU11!
-~f conc~ssiol!_s _2btained from the other_~
units during the previous year and projected for the following years). The City's conduct in
the negotiations and its adamant stand on principle was consistent with lawful hard bargaining.
PSNSEA has failed to carry its burden
of
proving the indicia
of
bad faith necessary to
demonstrate a violation under the totality-of-the-circumstances test.
Discrimination
PSNSEA contends that the City discriminated against its bargaining unit under
the theory
of
Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982)
131 Cal.App.3d 416 (City
of
Campbell). City
of
Campbell adopted the theory from NLRB
v.
Great Dane Trailers, Inc. (1967) 388 U.S. 26 (Great Dane Trailers). In Great Dane Trailers,
the employer was found to have committed an unfair labor practice
of
discrimination under
section 8(a)(3) 10 when it granted vacation benefits to non-union employees who did not strike,
but withheld them from union employees who did strike without any explanation for its
disparate treatment
of
the two groups. In City
of
Campbell the employer fixed the date
of
retroactive compensation enhancements to a date less favorable for the plaintiff than to that
provided to other employees.
10
29 U.S.C. sec. 158(a)(3).
24

In this case, the complaint alleges protected activity, followed by the imposition
of
the
economic concessions, and describes the violation as interference. 	In State
of
California
(Department
of
Personnel Administration) (2011) PERB Decision No. 2106a-S (State
of
California), PERB revisited the tests applied in discrimination and interference cases. PERB
noted the similarity between the tests for discrimination and interference
in
case law
of
both
PERB and the National Labor Relations Board.
PERB's
decision followed the guidance
of
Great Dane Trailers and City
of
Campbell. PERB explained that for cases
of
group
discrimination the prima facie test would be the Great Dane Trailers-Can1pbell test, rather
than the test
of
Novato Unified School District (1982) PERB Decision No. 210 (Novato),
which applies to discrimination or retaliation for discriminatory acts (adverse actions) imposed
on
employees. (State
of
California, supra, PERB Decision No. 2106a-S, pp. 5-13.) The test
for group discrimination looks first to see whether there has been disparate treatment along
lines that would discourage union participation.
(Id.
at p. 14; City
of
Campbell, supra, 131
Cal.App.3d 416.)
If
the employer's action is inherently destructive
of
employee rights,
discriminatory intent is presumed; otherwise, the union must establish such intent and the
employer may present a business justification in order to demonstrate that to be the real
motivation for its action. (State
of
California, supra, PERB Decision No. 2106a-S, p. 7; Great
Dane Trailers, supra, 388 U.S. 26, 34.)
In addition to Great Dane Trailers and City
of
Campbell, PSNEA relies on Los Angeles
County Employees Assn.
v.
County
of
Los Angeles (1985) 168 Cal.App.3d 683. In that case
several
of
the employer's unions had entered into coalition bargaining over fringe benefits
while bargaining separately over wages. The county granted a health insurance contribution to
only those unions that had completed bargaining on wages while withholding it for all others.
25

The court found significant the fact that the county deviated from its prior.practice
of
implementing fringe benefit enhancements to all
of
the units at the same time.
The City argues that this line
of
cases is distinguishable because its action here was in
fact an attempt to achieve uniform treatment
of
all its unions, not to disadvantage the PSNSEA
unit. The City's analysis focuses only on the take-home pay but ignores the savings from
layoffs which PSNSEA claims offset the cost
of
the wage increase.
The City
of
Campbell theory is inapplicable to this case, but not because the City
tre~ted the
P§1'T_S~A
_unit
similarly to
tl!_e
other units. lf_the
labor___2o~t~savi!1g~
:from the)_flyc>ff~
are added to the salary concessions the treatment may in fact have been unequal. Without a
complete record and exploration
of
all
of
the costs saved unit-by-unit, a definitive analysis
cannot be undertaken. Rather, the flaw in the union's case is that the wage reduction and
furloughs were imposed after the completion
of
good faith negotiations. PSNSEA seeks to
apply a Novato-type analysis to make the case that the City retaliated against its unit based on
the exercise
of
protected activities, namely, the successful resistance
of
mid-term concessions.
(See State
of
California, supra, PERB Decision No. 2106a-S.) The analysis is inapplicable to
this type
of
case for two reasons. First, although bargaining is clearly an act which is protected
by the statute, such an outcome would mean that an employer's failure to achieve its goals in
bargaining one year would prevent it from seeking to achieve those goals in subsequent
negotiations for fear
of
a retaliation charge based on the union's "success" in the previous
negotiations. Second, unlike retaliation cases, which have an adverse action element, the
employer's presentation
of
a proposal for economic concessions in bargaining is only that: a
proposal. It may unilaterally implement only because it has fulfilled its duty to meet and
confer in good faith. 	Fulfillment of that duty distinguishes this case from the cases relied upon
byPSNSEA.
26

Since the Novato-type analysis
of
retaliatory nexus is inappropriate in the context
of
bargaining, each negotiation must be considered on its own merits in terms
of
the duty to meet
and confer in good faith. As the City correctly points out, the labor boards do not sit in
judgment
of
the substance
of
bargaining proposals unless they are directly probative
of
intent
to engage in bad faith bargaining. (See Placentia Fire Fighters
v.
City
of
Placentia, supra,
57 Cal.App.3d 9, 23, quoting NLRB
v.
Herman Sausage Co., supra, 275 F.2d 229, 231-232.)
Pertinent to this case, PERB has held that an employer's attempt to achieve wage parity among
its units is a legitimate bargaining objective. (Banning Unified School
Distric_t_
(!~85} PERB~
__
Decision No. 536, p. 6.)
Therefore, PSNSEA has also failed to demonstrate that the City unlawfully
discriminated against Unit 10 by proposing to reduce take-home pay rates and implementing
those concessions following the impasse in negotiations.
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in
this case, the complaint and underlying unfair practice charge in Case No. SF-CE-904-M,
Santa Clara Public Safety Non-Sworn Employees Association
v.
City
of
Santa Clara, are
hereby DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Board itself within 20 days
of
service
of
this Decision. The Board's address is:
Public Employment Relations Board ·
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
FAX: (916) 327.:7960
27

In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received before the close
of
business
(5
p.m.) on the last day set for filing. 	(Cal. Code Regs., tit. 8,
§§
32135, subd. (a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California
------~
Code
of
Regulations, title
-------.
--
--·······-----
provided the filing party also places the original, together with the required number
of
copies
and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subd. (b), (c) and (d);
see also Cal. Code Regs., tit. 8,
§§
32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
28