County of Trinity (United Public Employees of California, Local 792) (PERB 2480M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF TRINITY,
Charging Party,
v.
UNITED PUBLIC EMPLOYEES OF
CALIFORNIA, LOCAL 792,
Respondent.
Case No. SA-CO-125-M
PERB Decision No. 2480-M
April 25, 2016
Appearance: Prentice, Long & Epperson LLP by Jason S. Epperson, Attorney, for County of
Trinity.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the County of Trinity (County) of a dismissal (attached) of its
unfair practice charge by the Office of the General Counsel. The charge, as amended, alleges
that the United Public Employees of California, Local 792 (UPEC), which represents the
Trinity County General Unit (GU), violated the Meyers-Milias-Brown Act (MMBA),1 by
engaging in an unlawful strike. The Office of the General Counsel dismissed the charge for
failure to state a prima facie case. The County timely filed an appeal. UPEC filed no
opposition.
The Board itself has reviewed this matter in full, including the charge and amended
charge, the warning and dismissal letters, and the appeal. The warning and dismissal letters
1 The MMBA is codified at Government Code section 3500 et seq. All further
undesignated statutory references are to the Government Code.

________________________
describe the charge allegations accurately and analyze the factual allegations of the charge in a
well-reasoned manner consistent with applicable law. Accordingly, we affirm the dismissal of
the unfair practice charge and adopt the warning and dismissal letters as the decision of the
Board itself.
SUMMARY OF FACTUAL ALLEGATIONS
The factual allegations are undisputed, and are briefly summarized here for discussion
purposes. The parties’ 2014 successor agreement2 negotiations ended in impasse. In
December 2014, GU employees engaged in a strike, the lawfulness of which is not
contested by the County. On January 14, 2015, a UPEC representative, Steve Allen (Allen),
sent an e-mail message to the County’s negotiator requesting confirmation of the County’s
interest in participating in a meeting with the GU and Skilled Trades Unit (STU) negotiations
teams. Between January 14 and February 10, 2015, the parties exchanged approximately three
to four e-mail messages in an effort to set a date for the two meetings, and settled on
February 26, 2015, for both meetings. The STU meeting went forward and led to a tentative
agreement on terms and conditions of employment between the County and the STU.
The GU meeting did not, however, go forward on February 26, 2015, as initially agreed
to by the parties. Instead, on February 21, 2015, Allen informed the County’s negotiator that
the meeting would have to be rescheduled for a later date and “for now the GU is still at
impasse for the 2014 negotiations.” The GU gave the County official strike notice on
February 27, 2015. In response to the strike notice, the County’s negotiator informed UPEC
that it considered the parties to be in the midst of negotiations and that any such strike would
be an unfair practice under PERB decisional law. The strike began on March 2, 2015 and was
2 The GU memorandum of agreement expired on January 31, 2014.
2

________________________
authorized to last through March 7, 2015. On March 10, 2015, the County filed the instant
unfair practice charge alleging that the strike constituted an unfair practice.
DISCUSSION
The County does not dispute that the parties reached a bona fide impasse in their 2014
successor agreement negotiations, thus suspending the duty to bargain. The central issue is
whether the bargaining impasse was subsequently broken by UPEC’s initial contact to set up a
meeting and the ensuing exchanges between the parties. If impasse was subsequently broken,
the bargaining obligation revives. (Los Angeles Unified School District (2013) PERB Decision
No. 2326 (Los Angeles), p. 13, fn. 13, citing Public Employment Relations Bd. v. Modesto City
Schools Dist. (1982) 136 Cal.App.3d 881, 899 (Modesto City).) A strike that occurs prior to
completion of statutory impasse procedures creates a rebuttable presumption that the union has
breached its duty to bargain in good faith. (Regents of the University of California (2010)
PERB Decision No. 2094-H (Regents), citing Sacramento City Unified School District (1987)
PERB Order No. IR-49 and Westminster School District (1982) PERB Decision No. 277.)3
If impasse was not subsequently broken, the parties remain at impasse and their
bargaining obligations continue in a state of temporary suspension. (Charles D. Bonanno Linen
Service, Inc. (1979) 243 NLRB 1093, 1093-1094 [impasse creates a temporary hiatus in
negotiations “which in almost all cases is eventually broken, through either a change of mind or
the application of economic force”].) Unlike a pre-impasse strike, with exceptions not applicable
here, a post-impasse strike does not implicate an unfair practice. (Fremont Unified School
District (1990) PERB Order No. IR-54; San Ramon Valley Unified School District (1984) PERB
3 The presumption of illegality is rebuttable by proof that the strike was provoked by
the employer’s unfair practices and that the employee organization in fact negotiated and/or
participated in impasse procedures in good faith. Absent such proof, the presumption stands,
and a violation is established. (Regents, supra, PERB Decision No. 2094-H.)
3

Order No. IR-46; Fresno County In-Home Supportive Services Public Authority (2015) PERB
Decision No. 2418-M, p. 22.)
A bona fide impasse in bargaining occurs where “the parties have considered each other’s
proposals and counterproposals, attempted to narrow the gap of disagreement and have,
nonetheless, reached a point in their negotiations where continued discussion would be futile.”
(Mt. San Antonio Community College District (1981) PERB Order Ad-124, p. 5.) If impasse
procedures are exhausted without breaking the deadlock, parties may decline requests to bargain
and the employer may “take unilateral action to implement the last offer the union has rejected.”
(Modesto City, supra, 136 Cal.App.3d 881, 900, citing NLRB v. Katz (1962) 369 U.S. 736, 745.)
The terms and conditions so implemented must be “reasonably comprehended within the
preimpasse proposals.” (Modesto City, supra, at p. 900.)
Impasse suspends the parties’ obligation to bargain only until “changed circumstances”
demonstrate that an agreement may be possible. Offers by either party to make concessions
sufficient to break the impasse revive the duty to bargain. (Los Angeles, supra, PERB
Decision No. 2326, p. 13, fn. 13, citing Modesto City, supra, 136 Cal.App.3d 881, 899.)
Under PERB decisional law, the making of “concessions” is key to finding a change in
circumstances sufficient to revive the duty to bargain. The Board in Regents of the University of
California (1996) PERB Decision No. 1157-H described changed circumstances as involving
“a significant concession by either party.” The Board in Rowland Unified School District (1994)
PERB Decision No. 1053 stated that the employer’s duty to bargain arose only where the union’s
proposals contained “a concession from its earlier position which demonstrates that circumstances
have changed and agreement may be possible.” As further commented on in Zerger, California
Public Sector Labor Relations, § 10.07[4], p. 10-55, citing State of California (Department of
4

________________________
Personnel Administration) (2010) PERB Decision No. 2102-S: “Speculation about possible
concessions is insufficient to revive bargaining. There must be substantial evidence that a party is
committed to a new bargaining position.”
We reiterate what the Office of the General Counsel heretofore explained that a handful
of non-substantive e-mail exchanges exploring the parties’ interest in and availability for a
meeting does not rise to the level of changed circumstances sufficient to revive the bargaining
obligation. (See also Transp. Co. of Texas (1969) 175 NLRB 763, 767 [requests for meetings
do not in themselves constitute concessions or demonstrate a prospect of compromise].) There
is no evidence that either party made a substantial concession from an earlier position and was
genuinely committed to a new bargaining position. As a matter of settled law, the parties were
still at impasse at the time of the second strike in March 2015. For this reason, the County’s
unfair practice charge fails.
On appeal, the County makes four arguments in an effort to persuade the Board to
reverse the dismissal.4 None has merit. First, the County argues that UPEC’s “negotiated
agreement” to meet with the County constitutes changed circumstances such that striking was
prohibited. As explained above, a handful of e-mail messages initiated by UPEC to set up a
meeting does not constitute changed circumstances sufficient to revive the bargaining
4 The County finds fault in the transfer of this case from PERB’s Sacramento Regional
Office to its San Francisco Regional Office in Oakland. Cases are transferred from one
regional office to another as a routine matter of administrative convenience based on workload
and staffing considerations. The County also finds fault with the longer time it took PERB to
issue the dismissal of the County’s charge against UPEC as compared to the time it took PERB
to issue a complaint in a related charge filed by UPEC against the County. This variance is a
function of numerous possible factors including the significantly different processes involved
in issuance of a complaint and issuance of a dismissal, workload considerations, and the ever
constant prioritization and reprioritization of competing demands on PERB’s resources. The
County would be wrong to extrapolate from the transfer of the case or the timing of the
dismissal any disfavor on PERB’s part toward the County or its position in this matter.
5

________________________
obligation. Neither party’s bargaining position had changed. Without a concession embedded
in a new bargaining position, the parties were still at impasse notwithstanding their effort to set
up an initial meeting. The County claims that the dismissal gives parties who are engaged in
negotiations carte blanche to break commitments to meet without consequence. Dilatory
conduct in the scheduling and attending of negotiation sessions may be evidence of a party’s
subjective bad faith under the totality of circumstances standard applicable in surface
bargaining cases. (Oakland Unified School District (1983) PERB Decision No. 326.) Here,
the parties had not resumed negotiations since reaching impasse in 2014, and therefore no such
standard applies to the parties’ conduct.
Second, in response to the warning letter, the County amended its charge to allege that
UPEC had “communicated a willingness to consider concessions which were not on the table
in the earlier negotiations.”5 The County points to this language in urging reversal of the
dismissal, but there are two problems with the County’s argument. A willingness to consider
concessions is not a concession. Moreover, the County offers no facts to support this
conclusory allegation. The County even concedes that “these new facts are not fully detailed.”
5 In a letter to Allen dated February 20, 2015, the County negotiator raised an issue
regarding “LIUNA.” Although this discussion is contained in a paragraph relating to the STU,
it is not clear that the “LIUNA” issue does not also relate to the GU. Allen’s e-mail response
dated February 21, 2015, does not clarify that point, but does shed some light on the nature of
the County’s concern. LIUNA appears to refer to an industrial pension trust fund. It also
appears that the trust fund had expressed a concern with language regarding LIUNA included
in a prior memorandum of understanding, which concern the County interpreted as affecting
the employees’ ability to make contributions and therefore its ability to offer compensation
increases. Allen explained that the trust fund had no problem with the parties’ retirement plan
so long as employee contributions were made via a pre-tax salary deduction, and that he could
supply corrective language to address the trust fund’s concern, which the trust fund had found
acceptable elsewhere.
The LIUNA issue is the only substantive matter raised in the course of the parties’ e-
mail exchanges. Neither the County’s letter nor Allen’s response constitutes a concession or
commitment to a new bargaining position for purposes of this discussion.
6

It is the charging party’s burden to include all material facts necessary to establish a prima
facie case. (Los Angeles Unified School District (1984) PERB Decision No. 473.) While
factual charge allegations are deemed to be true at the charge processing and investigation
stage of PERB proceedings, factually unsupported conclusory allegations enjoy no such
advantage. (Charter Oak Unified School District (1991) PERB Decision No. 873, p. 13.)
PERB’s investigation of an unfair practice charge is for the purpose of making a determination
whether the facts as alleged in the charge state a prima facie case and that the charging party is
capable of providing admissible evidence at a formal hearing in support of the allegations.
(Kings In-Home Support Services Public Authority (2009) PERB Decision No. 2009-M.)
Here, the initial charge fails to state a prima facie case. And the above-quoted allegation added
by the County as an amendment to the charge in response to the warning letter does not aid its
cause. The allegation about UPEC’s willingness to consider concessions is a factually
unsupported legal conclusion, which PERB cannot accept as true.
Third, the County argues that factual disputes should not be resolved at the charge
processing and investigation stage of PERB proceedings, but at a formal hearing after issuance
of a complaint. UPEC did not file a position statement in response to the charge or the first
amended charge, nor did it file an opposition to the appeal. UPEC has not participated in these
proceedings. The Office of the General Counsel made no factual determinations in favor of
UPEC. It accepted all of the County’s factual allegations as true. For charge processing and
investigation purposes, there are no disputed factual issues, let alone a prima facie case,
meriting issuance of a complaint for disposition by an administrative law judge at a formal
evidentiary hearing.
7

Last, the County urges that the Board find UPEC’s tactics unlawful under a totality of
circumstances standard. As explained above, the parties were at impasse, and not engaged in
negotiations, at the time of the second strike. The totality of circumstances standard, which
applies in surface bargaining cases, does not apply here.
We affirm the dismissal because our precedent commands such an outcome based on
sound public policy and settled principles of law. We note, however, that the MMBA was
enacted “to promote full communication between public employers and their employees” and
“to promote the improvement of ... employer-employee relations.” (MMBA, § 3500,
subd. (a).) While UPEC’s conduct does not rise to the level of an unfair practice, it also does
not serve to promote full communication or to improve employer-employee relations, the twin
goals envisioned by the MMBA. It has the potential to undermine trust and damage the
bargaining relationship.
At the same time, the County was not without options. Because the parties were at
impasse, the County had the option to refuse UPEC’s request to meet, respond to the request
with a concession substantial enough to revive the bargaining obligation or unilaterally impose
its last, best and final offer. By insisting that the duty to bargain was revived by UPEC’s
invitation to meet, the County foreclosed its options.
We affirm the dismissal of the charge.
ORDER
The unfair practice charge in Case No. SA-CO-125-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Winslow and Banks joined in this Decision.
8

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-0111
Fax : (510) 622-1027
December 29, 2015
David A. Prentice, Attorney
Prentice, Long & Epperson
5424 N. Palm Avenue, Suite 108
Fresno, CA 93 704
Re: 	County of Trinity v. United Public Employees of California, Local 792
Unfair Practice Charge No. SA-CO-125-M
DISMISSAL LETTER
Dear Mr . Prentice:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 10, 2015. The County of Trinity (County or Charging .
Party) alleges that the Trinity County General Unit (GU) which is represented by the United
Public Employees of California, Local 792 (UPEC or Respondent) violated the Meyers-Milias-
Brown Act (MMBA or Act/ by engaging in a strike that commenced on March 2, 2015.
Charging Party was informed in the attached Warning Letter dated November 12, 2015, that
the above-referenced charge did not state a prima facie case. You were advised that, if there
were any factual inaccuracies or additional facts that would correct the deficiencies explained
in that letter, you should amend the charge. You were further advised that, unless you
amended the charge to state a prima facie case or withdrew it on or before November 25, 2015,
the charge would be dismissed.
On November 24, 2015, Charging Party filed a timely first amended charge. The first
amended charge includes additional arguments but little to no additional facts. The first
amended charge still fails to state a prima facie case that the GU's strike violated the MMBA.
Facts as Alleged
The County and the GU agreed to a Memorandum of Understanding (MOU) that was effective
from February 1, 2013 to January 31, 2014. Article IX, section 3 of this MOU provides the
following "No Strike Clause":
[UPEC] agrees that under no circumstances will [UPEC]
recommend, encourage, cause or permit its members to initiate,
1 The MMBA is codified at Government Code section 3500 et seq. PERB's
Regulations are codified at California Code of Regulations, title 8, section 31001 et seq. The
text of the MMBA and PERB Regulations maybe found at www.perb.ca.gov.

participate in , nor will any member of the bargaining unit take
part in, any strike, sit-down, stay-in, sick-out, slow-down, nor to
picket in such a manner as to block the entrances to County
buildings, nor to picket with signs dealing with matters agreed to
in the current [MOU] in any office or department of the
Employer, nor to curtail any operation of the County during the
period in which the Parties are meeting and conferring on a
successive [MOU], until such time as impasse has been declared
and mediation attempts have failed . . . . In the event of any work
stoppage, during the term of this Agreement or prior to the
declaration of impasse and the failure of mediation attempts, by
any member of the bargaining unit, the Employer shall not be
required to negotiate on the merits of any dispute which may
have given rise to such work stoppage until the work stoppage
has ceased.
The County and UPEC negotiated for a new MOU during 2014. On an unspecified date in
2014, the negotiations ended in impasse. In December 2014, GU bargaining members engaged
in a strike.2
On January 14, 2015, UPEC representative Steve Allen (Allen) sent an electronic mail (e-mail)
message to the County's negotiator, David Ritchie, with the subject "Restarting Negotiations."
UPEC asked if the County was willing to agree to a meeting with the GU and the Skilled
Trades Unit.
On February 5, 2015, David Prentice (Prentice), the County's new negotiator responded to the
e-mail and asked Allen to call him.
The parties initially agreed to meet on February 27, 2015. However, through an e-mail
message exchange, the parties agreed that the County would meet with the GU at 1:00 p.m. on
February 26, 2015, and with the Skilled Trades Unit at 3:00 p.m. on the same day.
On February 10, 2015, Allen sent an e-mail message to the County asking for confirmation that
bargaining unit members would be granted release time for the meetings.
On February 20, 2015, Prentice sent an e-mail message to Allen with an attached letter. The
letter included an assertion that UPEC was requesting excessive release time. The letter also
stated that Prentice "would like to concentrate on establishing mutually acceptable ground
rules, as well as receive some proposal ideas from the units."
SA-CO-125-M
December 29, 2015
Page2
2 The unfair practice charge does not allege that the December 2014 strike constituted a
violation of the MMBA.

SA-CO-125-M
December 29, 2015
Page3
On February 21, 2015, Allen responded in an e-mail message which confirmed the Skilled
Trades Unit's upcoming meeting with the County.3 However, the e-mail message stated the
following about the GU :
The GU membership is not ready to agree that the 2014
negotiations cycle is complete. We are discussing our options
including whether we are continuing the impasse in 2014, starting
over for 2015 or some combination of the two ... We will sort
this out relatively soon but for now the GU is still at impasse for
the 2014 negotiations. In the meantime I am compelled to ask
that we reschedule the meeting on the 26th to occur at a later
date.
On February 27, 2015, UPEC sent an e-mail message notifying the County that the GU would
strike between March 2, 2007 and March 7, 2015.
On February 27, 2015, Prentice replied to the strike notice, stating that the County considered
the strike an unfair practice, because the County was in negotiations with the GU. The e-mail
message stated that the GU must negotiate with the County until impasse procedures are
complete.
Discussion
As noted in the Warning Letter, the MMBA does not prohibit the right to strike.· (County
Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564, 576; City
of San Jose (2013) PERB Decision No. 2341-M.) However, a strike that occurs before the
completion of statutory impasse procedures creates a "rebuttable presumption" that the union
has breached its duty to bargain in good faith. 	(Regents of the University of California (2010)
PERB Decision No . 2094-H [citing Sacramento City Unified School District (1987) PERB
Order No . IR-49 and Westminster School District (1982) PERB Decision No. 277].) Impasse
suspends the parties' obligation to bargain until changed circumstances indicate that an
agreement may be possible. (Rowland Unified School District (1994) PERB Decision
No. 1053.)
Here, the parties reached impasse in 2014. In January and February 2015, the parties engaged
in e-mail conversations and phone discussions where they scheduled a time to meet and
discussed release time issues. However, as the Warning Letter noted, merely discussing a
renewal of negotiations does not revive the parties' duty to bargain after impasse. (See Orange
Unified School District (2000) PERB Decision No. 1416 ["the duty to bargain is revived when
one party proposes a concession from its earlier bargaining position which indicates that
agreement may be possible"].) The Warning Letter pointed out that the County had not alleged
that either party submitted a proposal, let alone submitted a proposal that contained a
3 The Skilled Trades Unit ' s meml;>ers later approved a tentative agreement with the
County.

SA-CO-125-M
December 29, 2015
Page4
significant concession. The Warning Letter concluded that the County had not alleged
sufficient facts to show there was a change in circumstance that revived the parties' duty to
bargain. Thus, the County had failed to state a prima facie case that the GU engaged in an
illegal pre-impasse strike.
The first amended charge asserts that: (1) the GU's "request for new negotiations conveyed a
clear change in circumstances" and (2) "no change of circumstances are necessary if
negotiati~ns are started anew." Charging.Party cites Pub. Employment Relations Bd. v.
Modesto City Sch. Dist. (1982) 136 Cal.App.3d 881 (Modesto)4 in support of its argument. As
Charging Party notes, in Modesto, the court of appeal stated "impasse is a fragile state of
affairs and may be broken by a change in circumstances[.)" (Id. at p. 899.) However, the court
of appeal in Modesto did not hold that discussing a renewal of negotiations amounts to a
change in circumstance. (Ibid.)
As the Warning Letter stated, PERB has found that concessions by a party may be sufficient to
break impasse. (Regents of the University of California (1996) PERB Decision No. 1157-H
["Th[e] duty (to negotiate) remains dormant unless revived by some changed circumstance,
such as a significant concession by either party"]; Rowland Unified School District, supra,
PERB Decision No. 1053 ["[t]he (employer's) duty to resume negotiations following good
faith completion of impasse arises only if the (union's) proposals contained a concession from
its earlier position which demonstrates that circumstances have changed and agreement may be
possible"]; Modesto City Schools (1983) PERB Decision No. 291 ["Among the circumstances
which will restore the obligation to negotiation is a concession or series of concessions by one
of the parties"].) Charging Party has offered no authority to show that discussing a renewal of
negotiations-without actually meeting or exchanging proposals or concessions--constitutes a
changed circumstance. Nor has Charging Party offered authority to support its argument that
"no change of circumstances are necessary if negotiations are started anew ." Accordingly,
Charging Party has failed to state a prima facie case that the GU engaged in an illegal pre-
impasse strike.
The Warning Letter also stated that a post-impasse strike may constitute an unfair practice if it
is intermittent or taken without any notice. (Fremont -Unified School District (1990) PERB
Order No. IR-54; San Ramon Valley Unified School District (1984) PERB Order No. IR-46.)
The Warning Letter noted that Charging Party acknowledged that UPEC provided notice of the
strike, and that Charging Party did not allege that the strike was intermittent. The first
amended charge contains no additional facts that would indicate that the GU's strike was an
illegal post-impasse strike.
4 The first amended charge cites Modesto City Schools (1983) PERB Decision No. 291
not Pub. Employment Relations Bd. v. Modesto City Sch. Dist. (1982) 136 Cal.App.3d 881.
However, this appears to be a mistake because the language cited is from the latter decision not
the former.

SA-CO-125-M
December 29, 2015
Page 5
The No Strike Clause
The Warning Letter noted that a waiver of rights may be established only by clear and
unmistakable evidence. (Amador Valley Joint Union High School District ( 1978) PERB
Decision No. 74; Metropolitan Edison Co. v. NLRB (1983) 460 U.S. 693, 708.) The Warning
Letter also noted that a waiver of the right to strike does not survive the expiration of an MOU.
(Litton Financial Printing Division v. NLRB (1991) 501 U.S. 190; Los Angeles County
Association ofEnvironmental Health Specialists v. County of Los Angeles (2002) 102
Cal.App.4th 1112.)
The Warning Letter also noted that the "No Strike Clause" of the expired MOU states that
UPEC will not strike "until such time as impasse has been declared and mediation attempts
have failed[.]" The Warning Letter concluded that even if this "No Strike Clause" contains a
clear and unmistakable waiver, Charging Party had not sufficiently alleged that the GU's strike
occurred before impasse was declared and mediation attempts failed. Charging Party has not
submitted additional facts regarding this issue. Accordingly, Charging Party has failed to show
that the "No Strike Clause" of the expired MOU prohibited the GU from striking on March 2,
2015.
For these reasons, Charging Party has not stated a prima facie case that the GU's strike
violated the MMBA.
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs., tit. 8, § 32635, subd. (a).) Any document filed with the
Board must contain the case name and number, and the original and five (5) copies of all
documents must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd.
(a).) A document is also considered "filed" when received by facsimile transmission before
the close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U. S. mail. (Cal. Code
Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231

SA-CO-125-M
December 29, 2015
Page 6
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of~ statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs., tit. 8, § 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal.Code Regs., tit. 8, § 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs., tit. 8, § 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
J. FELIX DE LA TORRE
General Counsel
By _ 	_,,.------------
Jessi~a Kim
Regional Attorney
Attachment: Warning Letter
cc: Christopher D. Darker, Business Manager/Secretary-Treasurer
·

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-0111
Fax: (510) 622-1027
November 12, 2015
David A. Prentice, Attorney
Prentice, Long & Epperson
5424 N. Palm Avenue, Suite 108
Fresno, CA 93 704
Re: 	County of Trinity v. United Public Employees of California, Local 792
Unfair Practice Charge No. SA-CO-125-M
WARNING LETTER
Dear Mr. Prentice:
EDMUND G. BROWN JR., Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 10, 2015. The County of Trinity (County or Charging
Party) alleges that the Trinity County General Unit (GU) which is represented by the United
Public Employees of California, Local 792 (UPEC or Respondent) violated the Meyers-Milias-
Brown Act (MMBA or Act)1 by engaging in a strike that commenced on March 2, 2015.
Facts Alleged
The County and the GU agreed to a Memorandum of Understanding (MOU) that was effective
from February 1, 2013 to January 31, 2014. Article IX, section 3 of this MOU provides the
following "No Strike Clause":
[UPEC] agrees that under no circumstances will [UPEC]
recommend, encourage, cause or permit its members to initiate,
participate in, nor will any member of the bargaining unit take
part in, any strike, sit-down, stay-in, sick-out, slow-down, nor to
picket in such a manner as to block the entrances to County
buildings, nor to picket with signs dealing with matters agreed to
in the current [MOU] in any office or department of the
Employer, nor to curtail any operation of the County during the
period in which the Parties are meeting and conferring on a
successive [MOU], until such time as impasse has been declared
and mediation attempts have failed . . . . In the event of any work
stoppage, during the term of this Agreement or prior to the
declaration of impasse and the failure of mediation attempts, by
1 The MMBA is codified at Government Code section 3500 et seq. PERB's
Regulations are codified at California Code of Regulations, title 8, section 31001 et seq. The
text of the MMBA and PERB Regulations may be found at www.perb.ca.gov.

SA-CO-125-M
November 12, 2015
Page2
any member of the bargaining unit, the Employer shall not be
required to negotiate on the merits of any dispute which may
have given rise to such work stoppage until the work stoppage
has ceased.
The County and UPEC negotiated for a new MOU during 2014. On an unspecified date in
2014, the negotiations ended in impasse. In December 2014, GU bargaining members engaged
in a strike.2
On January 14 , 2015, UPEC representative Steve Allen (Allen) sent an e-mail message to the
County's negotiator, David Ritchie, with the subject "Restarting Negotiations." UPEC asked if
the County was willing to agree to a meeting with the GU and the Skilled Trades Unit.
On February 5, 2015, David Prentice (Prentice), the County's new negotiator responded to the
e-mail and asked Allen to call him.
The parties initially agreed to meet on February 27, 2015. However, through an e-mail
exchange, the parties agreed that the County would meet with the GU at I :00 p.m. on February
26, 20 15, and with the Skilled Trades Unit at 3:00 p.m. on the same day.
On February 10, 2015, Allen sent an e-mail message to the County asking for confirmation that
bargaining unit members would be granted release time for the meetings.
On February 20, 2015, Prentice sent an e-mail message to Allen with an attached letter. The
letter included an assertion that UPEC was requesting excessive release time. ·The letter also
stated that Prentice "would like to concentrate on establishing mutually acceptable ground
rules, as well as receive some proposal ideas from the units."
On February 21 , 2015, Allen responded in an e-mail message which confirmed the Skilled
Trades Unit's upcoming meeting with the County.3 However, the e-mail message stated the
following about the GU:
The GU membership is not ready to agree that the 2014 negotiations cycle is complete.
We are discussing our options including whether we are continuing the impasse in
2014, starting over for 2015 or some combination of the two- ... We will sort this out
relatively soon but for now the GU is still at impasse for the 2014 negotiations. In the
meantime I am compelled to ask that we reschedule the meeting on the 26th to occur at
a later date.
2 The unfair practice charge does not allege that th~ December 2014 strike constituted a
violation of the MMBA.
3 The Skilled Trades Unit's members later approved a tentative agreement with the
County.

SA-CO-125-M
November 12, 2015
Page 3
On February 27, 2015, UPEC sent an e-mail message notifying the County that the GU would
strike between March 2, 2007 and March 7, 2015.
On February 27, 2015, Prentice replied to the strike notice, stating that the County considered
the strike an unfair practice, because the County was in negotiations with the GU. The e-mail
message stated that the GU must negotiate with the County until impasse procedures are
complete.
Discussion
The March 2, 2015 Strike
"(W]hile not absolute, the right to strike falls within the statutorily-protected right of public-
sector employees to participate in union activities." (Fresno County In-Home Supportive
Services Public Authority, supra, PERB Decision No. 2418-M.) The MMBA does not prohibit
the right to strike. (County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn.
(1985) 38 Cal.3d 564, 576; City of San Jose (2013) PERB Decision No. 2341-M.)
However, under some circumstances, a strike may constitute an unfair practice. PERB has
held that a strike that occurs before the completion of statutory impasse procedures creates a
"rebuttable presumption" that the union has breached its duty to bargain in good faith.
(Regents of the University of California (2010) PERB Decision No. 2094-H [citing
Sacramento City Unified School District ( 1987) PERB Order No. IR-49 and Westminster
School District (1982) PERB Decision No. 277].) The presumption may be rebutted if the
union shows that the strike was provoked by the employer's unfair practices. (Ibid.)
A bona fide impasse in negotiations is reached after the parties have engaged in good faith
bargaining and "nonetheless, reached a point in their negotiations where continued
[negotiations] would be futile." (City of Selma (2014) PERB Decision No. 2380-M, citing
Mt. San Antonio Community College District (1981) PERB Order No. Ad-124.) Impasse
suspends the parties' obligation to bargain until changed circumstances indicate that an
agreement may be possible. (Rowland Unified School District (1994) PERB Decisiori
No. 1053.) Impasse can be broken when concessions in bargaining positions sufficient to
revive the possibility of fruitful discussions create changed circumstances that revive the duty
to bargain. (City of Santa Rosa (2013) PERB Decision No. 2308-M.)
Here, the County has not alleged sufficient facts to show that GU's March 2, 2015 strike was
an illegal pre-impasse strike. The County acknowledges that the parties reached impasse in
2014. The County has not alleged any facts to show that changed circumstances occurred that
revived the duty to bargain. (City of Santa Rosa, supra, PERB Decision No. 2308-M.) After
impasse, the duty to bargain is only renewed when changed circumstances, such as a
concession by one of the parties, breaks the impasse. (Ibid.; Regents of the University of
California (1996) PERB Decision No. 1157-H ["Th[e] duty [to negotiate] remains dormant
unless revived by some changed circumstance, such as a significant concession by either
party"]; Rowland Unified School District, supra, PERB Decision No. I 053 ["[t]he
[employer's] duty to resume negotiations following good faith completion of impasse arises

SA-CO-125-M
November 12, 2015
Page 4
only if the [union's] proposals contained a concession from its earlier position which
demonstrates that circumstances have changed and agreement may be possible"]; Modesto City
Schools, supra, PERB Decision No. 291 ["Among the circumstances which will restore the
obligation to negotiation is a concession or series of concessions by one of the parties"].)
In January and February 2015, the parties engaged in e-mail conversations and phone
discussions where they scheduled a time to meet and discussed release time issues. However,
merely discussing a renewal of negotiations does not revive the parties' duty to bargain after
impasse. (See Orange Unified School District (2000) PERB Decision No. 1416 ["the duty to
bargain is revived when one party proposes a concession from its earlier bargaining position ·
which indicates that agreement may be possible"].) The County does not allege that either
party submitted a proposal, yet alone submitted a proposal that contained a significant
concession. The County does not allege any other facts that demonstrate a change in
circumstance. Because the County has not alleged sufficient facts to show there was a change
in circumstance that revived the parties' duty to bargain, it has not stated a prima facie case
that the GU engaged in an illegal pre-impasse strike:
A post-impasse strike may constitute an unfair practice if it is intermittent or taken without any
notice. (Fremont Unified School District (1990) PERB Order No. IR-54; San Ramon Valley
Unified School District (1984) PERB Order No. iR-46.) However, the County acknowledges
that UPEC provided notice of the March 2, 2015 strike, and the County does not allege the
strike was intermittent.
The No Strike Clause
Because a waiver of rights is disfavored, it may be established only by clear and unmistakable
evidence. (Amador Valley Joint Union High School District (1978) PERB Decision No. 74;
Metropolitan Edison Co. v. NLRB (1983) 460 U.S. 693, 708.) A waiver will not be lightly
inferred and any doubt or ambiguity is resolved against the party asserting waiver. (City of
Escondido (2013) PERB Decision No. 2311-M, p. 13 ; NLRB v. Drivers, Chauffeurs, Helpers,
Local Union No. 639 (1960) 362 U.S. 274, 282.) Waiver may be established either by
agreement or by conduct. (Amador Valley Joint Union High School District, supra, PERB
Decision No. 74.) A waiver of the right to strike does not survive the expiration of a MOU.
(Litton Financial Printing Division v. NLRB (1991) 501 U.S. 190; Los Angeles County
Association of Environmental Health Specialists v. County ofLos Angeles (2002) 102
Cal.App.4th 1112.)
The "No Strike Clause" of the expired MOU states that UPEC will not strike, "until such time
as impasse has been declared and mediation attempts have failed . .. " Here, the County
acknowledges that the parties declared impasse on an unspecified date in 2014. The County
does not state whether a mediation occurred after the 2014 declaration of impasse, and if it did
occur, whether the mediation failed. In addition, as discussed above, the County has not
shown that the parties' duty to bargain was revived after the 2014 declaration of impasse.
Thus, even if the " No Strike Clause" contains a clear and unmistakable waiver, the County has
not sufficiently alleged that the March 2, 2015 strike occurred before impasse was declared and

SA-CO-125-M
November 12, 2015
Page 5
mediation attempts failed. 	(Fresno County In-Home Supportive Services Public Authority
(2015) PERB Decision No. 2418-M.)
Conclusion
For these reasons the charge, as presently written, does not state a prima_facie case.4 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of Charging Party. The amended charge must have the case
number written on the top right hand comer of the charge form. The amended charge must be
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before November 25, 2015,5
PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
Jessica Kim
Regional Attorney
JSK:jk
4 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile or electronic mail. (PERB Regulation 32135.)