PERB Decision No. 2540M

Texte intégral

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TRANSPORT WORKERS UNION OF AMERICA
LOCAL 250, SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 1021,
INTERNATIONAL ASSOCIATION OF
MACHINISTS LOCAL 1414, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS
LOCAL 6, TRANSPORT WORKERS UNION
LOCAL 200,
Case No. SF-CE-827-M
PERB Decision No. 2540-M
October 20, 2017
Charging Parties,
v.
CITY & COUNTY OF SAN FRANCISCO,
Respondent.
Appearances: Law Office of Kenneth C. Absalom by Kenneth C. Absalom and James A.
Achermann, Attorneys, for Transport Workers Union of America Local 250; Weinberg,
Roger & Rosenfeld by Alan Crowley, Attorney, for Service Employees International Union
Local 1021 and International Association of Machinists Local 1414; Leonard Carder by
Peter Saltzman, Attorney, for International Brotherhood of Electrical Workers Local 6;
Neyhart, Anderson, Flynn & Grosboll by Benjamin K. Lunch, Attorney, for Transport Workers
Union Local 200; Meyers, Nave, Riback, Silver & Wilson by Arthur A. Hartinger, Attorney,
for City & County of San Francisco.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the City & County of San Francisco (City) to a
proposed decision (attached) by a PERB administrative law judge (ALJ) that concluded that
VACATED IN PART by City & County of San
Francisco (2019) PERB Decision No. 2540a-M

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the City violated the Meyers-Milias-Brown Act (MMBA)1 by adopting unreasonable rules
concerning impasse dispute resolution and the treatment of past practices and side letters.
The complaint alleged that the City adopted Charter section 8A.104, subdivisions (o)
and (q), the substance of which were contrary to the MMBA and therefore in violation of
MMBA section 3507 and PERB Regulation 32603, subdivision (f).2 The City Charter
provides for binding interest arbitration of bargaining impasses between the City’s
Metropolitan Transit Agency (MTA) and recognized employee organizations. Subdivision (o)
of section 8A.104 requires the employee organization to prove to the arbitration panel by clear
and convincing evidence that its proposals concerning scheduling, deployment, assignment,
staffing, sign-ups, and the use and number of part-time transit personnel “outweighs the
public’s interest in effective, efficient, and reliable transit service and is consistent with best
practices.” Subdivision (q) of that section declares that past practices and side letters are not
binding unless they are approved in writing by the Director of Transportation or the Board of
Directors.
The Board has reviewed the entire record, the proposed decision, the City’s exceptions
and responses thereto filed by Transport Workers Union of America Local 250-A (TWU 250);
Transport Workers Union Local 200; International Brotherhood of Electrical Workers, Local 6
(IBEW, Local 6); Service Employees International Union Local 1021; and International
Association of Machinists and Aerospace Workers Local 1414 (collectively, Unions) in light
of applicable law. Based on this review, we conclude that the ALJ’s findings of fact are
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1 The MMBA 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.

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supported by the record and his conclusions of law are well reasoned and in accordance with
applicable law, except with respect to the remedial order. We hereby affirm the proposed
decision as modified, subject to the following discussion of the City’s exceptions.
FACTUAL BACKGROUND
The essential facts as described in the proposed decision are not in dispute, and are
summarized here to provide relevant context to our discussion. In November 2010, the City’s
voters passed Proposition G. Proposition G removed transit operators (represented by
TWU 250) from the City’s Salary Stabilization Ordinance3 and placed them, like all other
employees of the MTA, under the City’s collective bargaining/interest arbitration procedure.4
Proposition G also changed the interest arbitration procedure that applies to MTA employees
by adding subdivisions (o) and (q) to City Charter section 8A.104.
Subdivision (o) of Charter section 8A.104 provides:
The voters find that for transit system employees whose wages,
hours and terms and conditions of employment are set by the
Agency, the Agency’s discretion in establishing and adjusting
scheduling, deployment, assignment, staffing, sign ups, and the
use and number of part-time transit system personnel based[5]
upon service needs is essential to the effective, efficient, and
reliable operation of the transit system. In any mediation/
arbitration proceeding under Section 8.409-4 with an employee
organization representing transit system employees, the employee
organization shall have the burden of proving that any
restrictions proposed on the Agency’s ability to exercise broad
discretion with respect to these matters are justified. To meet this
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3 The Salary Stabilization Ordinance set salaries by surveying salaries in comparable
jurisdictions. The removal of transit operators from the Salary Stabilization Ordinance is not
at issue in this case.
4 Proposition G encompassed more topics than these subdivisions, but these are the only
subdivisions at issue in this case. Hereafter, “Proposition G” will refer only to subdivisions (o)
and (q).
5 These subjects are referred to collectively as “Transit Effectiveness Subjects.”

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burden, the employee organizations must prove by clear and
convincing evidence that the justification for such restrictions
outweighs the public’s interest in effective, efficient, and reliable
transit service and is consistent with best practices. The
mediation/arbitration board shall not treat the provisions of
MOUs for transit system employees adopted prior to the effective
date of this provision as precedential in establishing the terms of
a successor agreement. The mediation/arbitration board’s
jurisdiction shall be limited to matters within the mandatory
scope of bargaining under state law.
(Emphasis added.)
Section 8A.104, subdivision (q), pertaining to side letters and unwritten past practices
provides:
In addition, the voters find that Agency service has been impaired
by the existence of side-letters and reliance on “past practices”
that have been treated as binding or precedential but have not
been expressly authorized by the Board of Directors or the
Director of Transportation, and have not been and are not subject
to public scrutiny. Accordingly, for employees whose wages,
hours and terms and conditions of employment are set by the
Agency, no side-letter or practice within the scope of bargaining
may be deemed binding or precedential by the Agency or any
arbitrator unless the side-letter or practice has been approved in
writing by the Director of Transportation or, where appropriate,
by the Board of Directors upon the recommendation of the
Director of Transportation and appended to the MOU of the
affected employee organization or organizations subject to the
procedures set out in this charter. No MOU or arbitration award
approved or issued after the November 2010 general election
shall provide or require that work rules or past practices remain
unchanged during the life of the MOU, unless the specific work
rules or past practices are explicitly set forth in the MOU. All
side-letters shall expire no later than the expiration date of the
MOU.
(Emphasis added.)
Following passage of Proposition G, the Unions, who represent MTA employees, filed
the unfair practice charge challenging these Charter amendments on their face.

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PROPOSED DECISION
As an initial matter, the ALJ determined that the appropriate standard or test for
determining if a local rule is unreasonable under PERB Regulation 32603, subdivision (f), is
whether the charging party has demonstrated that the local rule “abridges the exercise of a
fundamental right, or frustrates the fulfillment of an affirmative duty, prescribed by the
MMBA.” (County of Monterey (2004) PERB Decision No. 1663-M; International
Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 199-200 (City of
Gridley).) After reviewing some history of California’s public sector labor law, and the need
for the law to provide a clear incentive for resolving disputes, the ALJ concluded: “. . . a
necessary function of the collective bargaining statute, whether enforcing mandatory interest
arbitration or not, is to ensure fairness through the adoption of neutral rules of engagement,
ones which are non-normative in outcome terms and grounded in a presumption that the parties
engage each other on a relatively level playing field.” (Proposed decision, p. 18.)
Based on that principle, the ALJ concluded that section 8A.104, subdivision (o),
“unreasonably abridges the unions’ right to represent their unit members and frustrates the
parties’ duty to meet and confer in good faith under the MMBA.” (Proposed Decision, p. 27.)
In support of his conclusion, the ALJ noted several flaws in subdivision (o), including the
discriminatory application of the burden of proof as to the six Transit Effectiveness Subjects.
It is only the Unions that need to convince the arbitrator by clear and convincing evidence that
justification for union proposals outweighs the public’s interest in efficient, reliable transit
service and is consistent with best practices. This higher burden of proof “handicaps” the
Unions by giving great weight to managerial discretion versus the Unions’ interest in these six
negotiable subjects, making it more likely that the City will prevail in arbitration when any of

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these subjects are submitted to binding arbitration. This, too, would warp the pre-arbitration
negotiations by sending the message to both union and management that there is little point in
pressing a union proposal on these subjects because management is more likely than not to
prevail in binding arbitration. In the words of the ALJ, where “one side maintains a clear
advantage over the other throughout the process, the chilling effect is easily predicted.”
(Proposed Decision, p. 25, fn. 8.)
The ALJ noted an additional discriminatory effect of subdivision (o). Its requirement
that a union proposal not only outweigh the public’s interest in efficient and reliable transit
service but be consistent with “best practices,” placed all past practices regarding any of the six
subjects in opposition to the new “best practice” standard. According to the ALJ, this means
that any new proposals adding costs or restricting broad managerial discretion are likely not to
prevail under the new guidelines prescribed by subdivision (o).
In sum, the ALJ determined that subdivision (o) did not implement neutral rules for
interest arbitration, but instead “added significant weight to management’s side of the scale in
interest arbitration.” (Proposed Decision, pp. 26-27.)
The ALJ then turned to subdivision (q)’s provisions retroactively voiding any side
letters and past practices not expressly approved by the Director of Transportation or the MTA
and appended to the memorandum of understanding (MOU). This conflicts with PERB
precedent, according to the ALJ, because it prevents the Unions from enforcing past practices
through PERB’s processes. (Omnitrans (2009) PERB Decision No. 2030-M.) The rule also
prevents the Unions from relying on or enforcing past practices in grievance arbitrations.
Moreover, because side letters are directly enforceable, the ALJ concluded that any attempt to
rescind them would be unlawful. (Palomar Community College District (2011) PERB

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Decision No. 2213 (Palomar).) Although an employer may mandate which of its own
representatives are authorized to execute a side letter, nothing on the face of subdivision (q)
indicates this rule is to be applied only prospectively. Therefore the ALJ concluded:
“Proposition G’s voidance of all previous unexpired side letters and past practices not formally
adopted repudiates terms and conditions of employment and deprives the unions of their right
to shape the meaning of ambiguous terms in their agreements through the grievance
procedure.” (Proposed Decision, p. 29.)
The ALJ then considered subdivision (q)’s provision that no MOU or arbitration award
approved or issued after November 2010 (when Proposition G was passed) shall provide or
require that work rules or past practices remain unchanged during the life of the MOU, unless
the specific work rules or past practices are explicitly set forth in the MOU. The ALJ found
that this provision refers to past practice clauses in MOUs, i.e., provisions that require the
recognition of past practices existing at the time of the agreement even though not expressly
included in the MOU. Both these clauses and zipper clauses are within the scope of
representation. (Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375, p. 81.) According to
the ALJ, this provision imposes on the Unions an obligation to list every possible past practice
in a past practice clause or forfeit the right to challenge any subsequent repudiation of those
practices. While it would be permissible for the City to propose such a requirement in
bargaining, it cannot unilaterally impose it, since it abridges the Unions’ right to represent its
members. The provision also denies the Unions their ability to seek enforcement of a past
practice through arbitration or PERB proceedings. The ALJ also noted that a local rule cannot
unilaterally remove a subject from the scope of representation, citing Huntington Beach Police

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Officers’ Association v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 499-503
(Huntington Beach). (Proposed Decision, p. 30.)
Finally, the ALJ found that the fourth sentence of subdivision (q), which requires the
expiration of all side letters upon expiration of an MOU, conflicts with the well-established
rule that the employer must maintain the status quo upon expiration of an MOU until good
faith negotiations have been completed. (Palomar, supra, PERB Decision No. 2213 [holding
that side letters bind the parties to the practices contained in them and do not expire
automatically upon expiration of the MOU].) The ALJ concluded that this provision was
“tantamount to a unilateral repudiation of all side letters not explicitly limited in time to the
term of the . . . MOU, thereby frustrating the unions’ right to represent [unit members].”
(Proposed Decision, p. 30.)
The ALJ then considered and rejected the City’s argument that voters may legitimately
legislate to further the public’s interest in an efficient transit system, an interest that supersedes
the Unions’ claims of undue burden on the arbitration process. In the ALJ’s view, the
proponents of Proposition G successfully leveraged their interests through the political process,
and this case illustrates “the need to critically assess whether this factor [the public interest] is
properly implemented in a manner consistent with the statutory premise of good faith
negotiations. Anti-labor motivated legislation by the electorate has no legal consequences so
long as the bargaining process remains neutral.” (Proposed Decision, p. 32.) Because both
subdivisions (o) and (q) are discriminatory on their face and impose undue burdens on the
Unions according to the ALJ, they cease to be neutral. The ALJ observed:
Rules for collective bargaining must be faithful to the premise of
equal leverage in the process to fulfill the purposes of the statute;
otherwise they amount to ‘official compulsion’ of a particular
outcome. [Citation.] When local legislation crosses that line, it

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not only runs afoul of the statute as an unreasonable regulation
but must also give way under the principles of preemption.
(Proposed Decision, p. 33.)
To remedy these violations, the ALJ ordered the City to cease and desist from adopting
and enforcing the provisions of subdivisions (o) and (q) of Charter section 8A.104 and to
rescind these provisions.
THE CITY’S EXCEPTIONS
The City filed 32 exceptions, which can be summarized and grouped into the following
ten contentions.
• 	The ALJ’s factual summary is inaccurate and incomplete because he failed to note
that the Unions’ witness admitted that the City bargained in good faith after
Proposition G passed and that at least one Union, IBEW, Local 6, was able to obtain
agreement on numerous proposals that affected the six Transit Effectiveness
Subjects without resorting to binding arbitration. Since Proposition G was passed,
none of the charging parties have requested arbitration on any of the six Transit
Effectiveness Subjects, so there can be no legitimate finding that their bargaining
rights were chilled by Proposition G.
• 	The ALJ erroneously neglected to analyze the City’s home rule authority.
• 	Proposition G is not an unreasonable regulation because it simply establishes
standards to guide arbitrators’ exercise of their judgment. The “clear and
convincing” standard is reasonable given the public’s determination that the transit
system is integral to public health and quality of life, and it was an error for the ALJ
to assume it is an insurmountable burden, especially given that none of the six
Transit Effectiveness Subjects have been presented to binding arbitration. The ALJ

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also erred in concluding that the “best practice” standard was discriminatory and
anti-labor.
• 	The “as-applied” challenge to subdivision (o) must be rejected because the City
bargained in good faith after the passage of Proposition G and the MTA agreed to
several union proposals concerning the six Transit Effectiveness Subjects.
• 	With respect to subdivision (q), the ALJ erred in failing to harmonize or even
address MMBA section 3505.1, which requires that an agency’s governing body
adopt a tentative agreement before it will be binding. Subdivision (q) merely places
controls on who from the City has authority to bind the MTA, which does not
violate the MMBA.
• 	The ALJ erroneously ruled on parts of subdivision (q) that were not challenged by
the complaint.
• 	There is nothing unreasonable about the requirement in subdivision (q) that requires
the parties to identify “binding contractual agreements.”
• 	Contrary to the ALJ’s finding, there is nothing in subdivision (q) that interferes with
the use of evidence of a past practice as an aid in interpreting ambiguous provisions
of an MOU. Moreover, it is not unreasonable to require parties to negotiate and
obtain approval for a past practice that purportedly constitutes binding terms and
conditions of employment
• 	The City’s sunshine laws and policy favoring transparency in government supersede
other local laws and it is not unreasonable for the voters to require greater
transparency in negotiations, as subdivision (q) does.

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• 	The proposed remedy is excessive and unenforceable because PERB has no
authority to order any part of a municipal charter rescinded. Moreover, striking the
entire subdivision (o) is overbroad in light of the ALJ’s focus on the standard of
proof and the definition of “best practices,” while striking subdivision (q) exceeds
the scope of the complaint and what was actually litigated.
DISCUSSION
We are presented in this case with the tension between management’s claim that it has a
right and a duty to enforce legislation that furthers an asserted public interest in efficient transit
practices, and labor’s assertion that such regulation is not reasonable because it conflicts with
the purposes of the MMBA.
One of the central purposes of the MMBA is to promote full communication between
public employers and their employees by providing a reasonable method of resolving disputes
regarding wages, hours, and other terms and conditions of employment. (§ 3500, subd. (a).)
MMBA section 3507, subdivision (a)(5), explicitly permits a public agency to adopt reasonable
rules and regulations after consultation in good faith with employee organizations concerning
additional procedures for the resolution of disputes involving wages, hours and other terms and
conditions of employment. However, such rules and regulations must be “reasonable,”
meaning in conformance with the provisions, polices and purposes of the MMBA. (MMBA,
§§ 3507, subds. (a)(5) and (d), 3509, subd. (b); PERB Reg. 32603, subd. (f).) For reasons
explained below, we agree with the ALJ that the provisions of Proposition G at issue here do
not constitute a reasonable method for resolving disputes.

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The Appropriate Test For Assessing a Facial Challenge to a Local Rule
The City asserts that in order to succeed in a facial challenge to a local rule, the
challenger must establish that no set of circumstances exists under which the rule would be
valid and that the rule inevitably poses a total and fatal conflict with applicable law, citing
Arcadia Unified School Dist. v. State Department of Education (1992) 2 Cal.4th 251, 267. The
City’s reliance on Arcadia is misplaced. That case involved a facial constitutional challenge to
a statute that permitted school districts to charge students for transportation. The Court
rejected the challenge, noting that in order to successfully challenge a statute on its face based
on constitutional infirmities, the challenger must show that the act’s provisions “inevitably
pose a present total and fatal conflict with applicable constitutional prohibitions.” (Ibid.)
PERB and the courts have applied a different standard when presented with an asserted
conflict between a public agency’s local rules and the MMBA. In City of Gridley, supra,
34 Cal.3d 191, the Court looked only to whether the local rule (allowing the employer to
withdraw recognition of an employee organization if it engaged in a strike) was inconsistent
with the principles of the MMBA, acknowledging:
[I]t is now well settled that the Legislature intended that the
MMBA “set forth reasonable, proper and necessary principles
which public agencies must follow in their rules and regulations
for administering their employer-employee relations . . .” and that
“if the rules and regulations of a public agency do not meet the
standard established by the Legislature, the deficiencies of those
rules and regulations as to rights, duties and obligations of the
employer, the employee, and the employee organization, are
supplied by the appropriate provisions of the act.” [Citations.]
(Id. at pp. 197-198. See also Los Angeles County Federation of Labor v. County of
Los Angeles (1984) 160 Cal.App.3d 905, 908 (County of Los Angeles); Voters For Responsible
Retirement v. Board of Supervisors, 8 Cal.4th 765, 781 [MMBA preempts the right of the

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electorate to subject to referendum an MOU adopted by local agency’s governing body];
Service Employees International Union, AFL-CIO v. Superior Court (2001) 89 Cal.App.4th
1390, 1395 [local rule must be reasonable in light of the intent of the MMBA].)
The Board applied this test of reasonableness in County of Monterey, supra, PERB
Decision No. 1663-M, the first case in which PERB determined that a local rule was
unreasonable in violation of MMBA section 3507 and PERB Regulation 32603,
subdivision (f). The Board stated:
A local rule that infringes on employee organization rights . . .
or employee rights . . . would constitute an unreasonable
regulation. . . . Accordingly, a violation based on the adoption
or enforcement of an unreasonable regulation requires, as a
threshold matter, a showing that the local rule or regulation
abridges the exercise of a fundamental right, or frustrates the
fulfillment of an affirmative duty, prescribed by the MMBA.
(County of Monterey, adopting proposed decision at pp. 28-29. See also City of Madera (2016)
PERB Decision No. 2506-M, pp. 5-6.) The ALJ correctly applied this same test to determine
the reasonableness of Proposition G.
The Home Rule Doctrine
The City avers that the ALJ erred by not considering the home rule doctrine in
analyzing Proposition G. As the City notes, the home rule doctrine “reserves to charter cities
the right to adopt and enforce ordinances, provided the subject of the regulation is a municipal
affair rather than a subject of statewide concern.” (City’s Statement of Exceptions to Proposed
Decision and Brief in Support (City’s Exceptions), p. 18.)6 Although the City correctly states
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6 In the absence of a citation to the precise part of the California Constitution to which
the City refers, we presume it intends by “the home rule doctrine” to refer to California
Constitution, article XI, sections 3 and 5, which respectively permit cities and counties to
adopt a charter which has the force and effect of legislative enactments and that a charter city
may make and enforce all ordinances and regulations with respect to municipal affairs.

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the law on this point, the home rule doctrine does not assist the City in this case. The process
of collective bargaining and the rights of employees and their organizations secured by the
MMBA and the uniform application of that statute are matters of statewide concern. (People
ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600
(Seal Beach).) Courts have recognized this for decades and have thus, for example, upheld the
right of firefighters to organize, despite charter provisions to the contrary (Professional Fire
Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276 (City of Los Angeles)); invalidated
charter provisions prohibiting granting improvements in wages or working conditions to
employees who engaged in a strike (County of Los Angeles, supra, 160 Cal.App.3d 905); and
struck down a charter city’s attempt to exclude working hours from the scope of bargaining
(Huntington Beach, supra, 58 Cal.App.3d at p. 500). In Huntington Beach, the court declared:
Labor relations in the public sector are matters of statewide
concern subject to state legislation in contravention of local
regulation by chartered cities.
[¶ . . .¶]
Although the Legislature did not intend to preempt all aspects of
labor relations in the public sector, we cannot attribute to it an
intention to permit local entities to adopt regulations which would
frustrate the declared polices and purposes of the MMB Act.
(Id. at pp. 500, 501-502, fn. omitted.)
Quoting then-Professor Grodin, Public Employee Bargaining in California: The
Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719, 725, the Huntington
Beach court observed: “the power reserved to local agencies to adopt rules and regulations
was intended to permit supplementary local regulations which are ‘consistent with, and

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effectuate the declared purposes of, the statute as a whole.’” (Huntington Beach, supra,
58 Cal.App.3d at p. 502.) 7
Thus, the home rule doctrine does not permit a charter city to enact or enforce a local
ordinance that conflicts or is inconsistent with the intent or purpose of the MMBA. We turn
next to consider that predicate issue, i.e. whether subdivisions (o) and (q) conflict with the
MMBA.
The Merits of Section 8A.104, Subdivision (o)
We agree with the ALJ that “. . . a necessary function of the collective bargaining
statute, whether enforcing mandatory interest arbitration or not, is to ensure fairness through
the adoption of neutral rules of engagement, ones which are non-normative in outcome terms
and grounded in a presumption that the parties engage each other on a relatively level playing
field.” (Proposed Decision, p. 18.)
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7 The City makes a related argument that Proposition G must be harmonized with the
MMBA. The courts have generally harmonized the MMBA’s procedural provisions with
public agencies’ authority to regulate their municipal affairs. For instance, in Seal Beach
(Seal Beach, supra, 36 Cal.3d 591, 601), the Supreme Court held that the MMBA’s meet and
confer requirement did not conflict with a charter city’s authority to submit a proposed charter
amendment to the voters, because the governing body “may still propose a charter amendment
if the meet-and-confer process does not persuade it otherwise.” For similar reasons, the
Supreme Court in Building Material & Construction Teamsters' Union v. Farrell (1986)
41 Cal.3d 651, 665, a case involving the City, found no conflict between the MMBA’s meet-and-
confer requirement and a charter provision reserving certain authority to a civil service
commission.
City of Los Angeles, supra, 60 Cal.2d 276, County of Los Angeles, supra, 160
Cal.App.3d 905, and Huntington Beach, supra, 58 Cal.App.3d at p. 502 make clear, however,
that when there is a conflict, the local authority must yield to the MMBA. In this case, the City
has not advanced any plausible interpretation of Proposition G’s provisions that does not
conflict with the MMBA. In fact, the City’s argument does not rely on Proposition G at all,
but instead rests on other provisions of the Charter—sections 8A.104, subdivision (k), and
A8.409-3—that merely reiterate the duty to meet and confer in good faith. Therefore, there is
no basis for harmonizing Proposition G with the MMBA.

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We disagree with the City’s characterization of subdivision (o) as simply an articulation
of standards or criteria to guide the arbitrator. While the establishment of criteria or factors to
be considered by an arbitrator is commonplace and unobjectionable,8 subdivision (o) goes
beyond merely establishing neutral criteria that guide arbitrators in making their decision. The
heightened standard of proof as to the six Transit Effectiveness Subjects functions as a one-
way ratchet. Only the Unions must establish by clear and convincing evidence that their
proposals on any of these six subjects outweigh the public’s interest in efficient transit service
and are consistent with “best practices.” Employer proposals are not subject to these
standards. This difference makes it much more likely a union proposal on these subjects will
be rejected in arbitration. Because subdivision (o) thus places a “thumb on the scale” in favor
of the City’s proposals, its provisions are not mere neutral criteria or standards to guide the
arbitrator.
We also reject the City’s exception that the ALJ erred in describing the “best practice”
requirement as discriminatory. We read the proposed decision on this point as saying that this
requirement is inseparable from the requirement that Unions must prove by clear and
convincing evidence that the justification for proposals that restrict management’s discretion
outweighs the public’s interest in effective and reliable transit service. We agree with the
ALJ’s analysis that the “best practice” standard automatically juxtaposes past practice with
“best practice,” and operates with the heightened burden of proof and higher level of scrutiny
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8 The City’s Charter already prescribes factors that arbitrators must weigh in making
their awards including economic comparators, the financial resources of the City, revenue
projections, the interests and welfare of transit riders, residents and other members of the
public, and the MTA’s ability to efficiently tailor work hours and schedules for transit system
employees to the public demand for service.

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to make it far less likely that an arbitrator will choose a Union’s proposal over the City’s
proposal on any of the Transit Effectiveness Subjects. (See Proposed Decision, p. 26.)
The City also claims that its interest arbitration process must include safeguards to
prevent an unconstitutional delegation of legislative authority. However, the issue in this case
is not whether the process may or must include standards to guide the arbitrator’s
decisionmaking. As explained above, the issue is whether the process may be constructed to
clearly favor one party over the other. We hold that it may not, and neither of the cases cited
by the City on this point—County of Riverside v. Superior Court (2003) 30 Cal.4th 278
(County of Riverside) and Kugler v. Yocum (1968) 69 Cal.2d 371—are to the contrary.9
The City also asserts that subdivision (o)’s “clear and convincing” evidentiary standard
for assessing the merits of union proposals on the six Transit Effectiveness Subjects is a
legitimate public policy enacted in response to the public outcry over the deterioration of MTA
services. In the absence of a statewide collective bargaining law, these arguments would have
some weight. And in the context of bargaining, they may well justify proposals by the City at
the bargaining table to improve services. Nothing in the MMBA prevents a public agency
from relying on public policy and public demands to justify its bargaining positions, and the
Charter already provided, prior to Proposition G, that the public’s interest be considered by the
arbitration panel when determining an award.
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9 County of Riverside, supra, 30 Cal.4th 278, held unconstitutional a statute requiring
municipalities to submit certain bargaining disputes to binding arbitration, as it interfered
with the municipality’s authority to set employee compensation. (Cal. Const., art. XI, § 1,
subd. (b)) and delegated the authority of the municipality’s governing body to a private person
(Cal. Const., art XI, § 11, subd. (b).)
Kugler v. Yocum, supra, 69 Cal.2d 371, held that an ordinance establishing firefighter
salaries by comparison to surrounding jurisdictions included adequate guidance, and thus was
not an unconstitutional delegation of legislative authority.

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But that is not what was accomplished by subdivision (o). Rather, this provision was
designed to tilt the bargaining table in favor of management proposals and priorities. We agree
with the ALJ for the reasons he explained that subdivision (o) was not an expression of neutral
rules for resolving bargaining disputes, and for that reason conflicts with the MMBA.
In further defense of subdivision (o), the City argues that by requiring interest
arbitrators to “place great emphasis on the public’s interest,” Proposition G merely establishes
priorities and applies those priorities to collective bargaining. The City claims that this does
not run afoul of the MMBA because the City could, in the absence of binding interest
arbitration, emphasize those priorities by withholding agreement and implementing its own
proposals after reaching impasse. (City’s Post-hearing Opening Brief, p. 17.) This argument
ignores that under the binding interest arbitration procedure at issue here, the City’s bargaining
rights are tempered by the arbitration procedure. Although it may reject proposals at the
bargaining table, it may not impose its last best and final offer at the point of impasse. By
decreeing in the charter that binding interest arbitration shall be the bargaining dispute
resolution mechanism, the City has ceded to an arbitrator the right to impose terms and
conditions of employment.10 Having done so, it cannot subsequently attempt to “buy” the
referee by requiring that referee to apply one standard to the Unions and another to the City.
The City also contends that the Unions’ “as-applied” challenge to subdivision (o) must
be rejected because the Unions admitted the City bargained in good faith after Proposition G
passed, and that they successfully negotiated over a variety of Transit Effectiveness Subjects
________________________
10 The City correctly points out that it could eliminate interest arbitration and simply
refuse to agree to anything that would negatively impact the Transit Effectiveness Subjects.
Yet it has not done so. We are presented here only with the question of the reasonableness of
the regulation the City has imposed on its interest arbitration process, and not with any
hypothetical impact of a decision to jettison its interest arbitration procedure.

19
without resort to arbitration. Related to this contention is the City’s exception that the ALJ
appears to have conflated the Unions’ facial challenge to Proposition G with their “as-applied”
challenge. We reject these exceptions.
This case does not involve an “as-applied” challenge to Proposition G. The complaint
alleged that Charter section 8A.104, subdivisions (o) and (q), described as “Respondent’s
policies” (Complaint, par. 4) are contrary to the MMBA. The complaint does not allege that
the policies were applied in a way that violates the MMBA, or that the City engaged in any
conduct other than adopting these policies. As pled, this case presents a facial challenge to
these policies. The ALJ did not conflate a facial challenge with an “as-applied” challenge, but
properly analyzed whether Proposition G was facially unreasonable. Although the ALJ cited
testimony of a Union witness, Kevin Hughes (Hughes), assistant business manager for IBEW,
Local 6, as an example of the chilling effect subdivision (o) could have on negotiations, this
does not render his analysis or conclusions erroneous.11 The proposed decision did not hinge
on this testimony.
We also reject the City’s exception that the ALJ erroneously relied on Hughes’
testimony because it was hearsay. PERB Regulation 32176 provides in pertinent part:
“Hearsay evidence is admissible but shall not be sufficient in itself to support a finding unless
it would be admissible over objection in civil actions.” The City asserts that the ALJ relied on
Hughes’ testimony for his finding that Proposition G had a chilling effect on good faith
negotiations. We do not read the proposed decision as the City does. In the paragraphs
________________________
11 Hughes testified that the chief negotiator for the MTA, Michelle Modena, explained
during negotiations the MTA’s resistance to a Union proposal concerning one of the Transit
Effectiveness Subjects. According to Hughes, Modena pointed out that Proposition G raises
the bar significantly and puts the burden on the Union to establish its proposal was consistent
with the transit-first policy. She also said the Union would have a difficult time prevailing in
interest arbitration with the additional criteria in Proposition G.

20
preceding the ALJ’s reference to Hughes’ testimony, he analyzed the language of
subdivision (o) and observed:
. . . the Charter requires that the unions’ justification address a
particular burden. . . . This burden handicaps the unions by giving
especially great weight to MTA’s managerial discretion in
opposition to the unions’ interest in negotiable subjects. Section
8A.104(o) also imports a subjective standard that invites circular
reasoning by MTA because managements’ discretion is deemed
essential to achieving MTA’s goals as a transit system. . . .
Moreover, like the burden of proof, the gloss placed on the new
factor inhibits negotiations prior to impasse by encouraging the
assertion of scope of representation arguments by the City at the
interest arbitration stage, . . .
(Proposed Decision, pp. 24-25.)
In short, the ALJ based his findings of a chilling effect on his reading of subdivision (o).
Hughes’ testimony merely confirmed his legal analysis.12
The City also excepts to what it characterizes as an inaccurate factual conclusion that
“employees gave up a right to strike as a ‘quid pro quo’ for interest arbitration,” asserting that
such a finding is not supported by the “undisputed chronology of relevant charter
provisions.”13 (City’s Exceptions, pp. 10 and 12.)
The City is correct that the City Charter banned strikes in San Francisco before charter
amendments were passed that provided for interest arbitration. (See City & County of
San Francisco, supra, PERB Decision No. 2536-M, p. 26, fn. 24.) This chronology
________________________
12 To the extent the ALJ made a “finding” based on Hughes’ testimony regarding
statements by MTA representatives, those statements were properly considered as an
admission by a party, an exception to the hearsay rule (Evid. Code, § 1220; PERB
Reg. 32176.)
13 Curiously, the City argued just the opposite in a recent case concerning sympathy
strikes, claiming in that case that it is permitted to ban strikes generally because binding
interest arbitration is the quid pro quo for such a ban. (City and County of San Francisco,
supra, PERB Decision No. 2536-M, p. 25.)

21
undermines the contention that interest arbitration was predicated on a “forfeiture” of the right
to strike, since the City banned strikes long before it implemented interest arbitration. It is also
inaccurate to characterize as a quid pro quo a situation in which strikes are purportedly
prohibited by local rule, rather than by mutual agreement after a meet and confer process.
We also question whether this particular interest arbitration procedure is “predicated on
forfeiture of the right to economic weapons.” (Proposed Decision, p. 27.) As the Board noted
in City and County of San Francisco (2009) PERB Decision No. 2041-M (San Francisco),
Charter section 8A.409-4, subdivision (a), requires that unresolved disputes over wages, hours
and terms and conditions of employment be submitted to arbitration upon declaration of
impasse (id., adopting proposed decision at p. 33), a conclusion we re-affirm—the interest
arbitration procedure in San Francisco is mandatory. However, that same Charter section also
provides in pertinent part:
“. . . the arbitration procedures set forth in this part shall not be
available to any employee organization that engages in a
strike. . . . Should any employee organization engage in a strike
either during or after the completion of negotiations and impasse
procedures, the arbitration procedure shall cease immediately and
no further impasse resolution procedures shall be required.”
(San Francisco, supra, adopting proposed decision at pp. 7, 30.) As we held in San Francisco,
adopting proposed decision at p. 31, and the penalty imposed by section 8A.409-4,
subdivision (a), for engaging in a primary strike is forfeiture of the benefits of binding interest
arbitration. This is the clause that arguably creates a quid pro quo for a particular dispute, not
a blanket ban on strikes. (See City & County of San Francisco, supra, PERB Decision
No. 2536-M, p. 26, fn. 24, questioning whether the charter’s ban on strikes and penalties for
striking employees is the quid pro quo for binding interest arbitration.) An employer may not
impose terms that waive or forfeit the statutory rights of employees or their organizations to

22
engage in concerted activity, including the right to strike. (Fresno County In-Home Supportive
Services Public Authority (2015) PERB Decision No. 2418-M, p. 24). Public employees have
a qualified right to strike. (Ibid.; City and County of San Francisco, supra, PERB Decision
No. 2536-M. Relying on these principles and those favoring peaceful resolution of bargaining
disputes, San Francisco, supra, PERB Decision No. 2041-M, correctly concluded that the
Charter “provides that interest arbitration is forfeited by any union engaging in a strike. Stated
differently, the penalty for striking is the union’s inability to proceed to interest arbitration,
unless the City chooses to ignore the strike.” (Id., adopting proposed decision at p. 31.) If a
union wants the bargaining dispute resolved through arbitration, it cannot strike during or after
the completion of negotiations and impasse procedures.
The proposed decision offers numerous reasons why Proposition G in general and
subdivision (o) in particular violate the MMBA. We do not read the decision to turn on
whether binding arbitration is a quid pro quo for banning the right to strike. But to the extent
the observation in the proposed decision that “. . . an interest arbitration process predicated on
forfeiture of the right to economic weapons must maintain a level playing field” can be
interpreted to heighten the scrutiny applied to Proposition G because of an alleged quid pro
quo, we disavow such interpretation. There can be no unilateral forfeiture of the right to strike.
The infirmities identified with subdivision (o) render its provisions incompatible with the
MMBA regardless of whether the City has disarmed both sides of their respective economic
weapons.
The City, in exercising its right under MMBA section 3507, subdivision (a)(5), to adopt
reasonable regulations for procedures “for the resolution of disputes involving wages, hours
and other terms and conditions of employment,” determined that binding interest arbitration

23
would be that procedure. However, such regulations must be “reasonable.” As the ALJ found
and as we affirm, subdivision (o) is not reasonable under the MMBA because it turns what
should be a level table into a warped surface that favors the employer’s proposals by making it
more difficult for the Unions to persuade an arbitrator that their proposals concerning the
Transit Effectiveness Subjects should be adopted. It is not difficult to imagine that this “thumb
on the scale” would also alter the dynamic at the bargaining table long before the parties reach
impasse and arbitration. Placing the additional burdens of persuasion on the Unions removes
or reduces incentives by management to reach agreement short of impasse on these subjects,
knowing that an arbitrator is likely to find for the management proposal. Such a situation
interferes with the presumed good faith of both parties when they commence negotiations. It
also conflicts with the purpose of the MMBA, which is to provide a reasonable method of
resolving disputes regarding wages, hours and working conditions.
Finally, the City argues that the reasonableness of subdivision (o) is proven by the fact
that none of the Unions alleged that the City bargained in bad faith after Proposition G passed.
Once again, this case is a facial challenge to the reasonableness of Proposition G. It is of no
consequence that the employer bargained in good faith after the rule was enacted. Surface
bargaining occurs when one party’s intent is to avoid reaching agreement. (Muroc Unified
School District (1978) PERB Decision No. 80; City of San Jose (2013) PERB Decision
No. 2341-M.) By contrast, there is no requirement of intent when assessing the reasonableness
of a rule. (County of Monterey, supra, PERB Decision No. 1663-M.)14
________________________
14 Because intent is irrelevant here, we do not rely, as the ALJ did, on the conclusion
that Proposition G was intended to be “anti-labor,” based on the comments of the County
Supervisor who sponsored the initiative. Moreover, as the City correctly points out, voter
intent cannot be determined based on those comments, which were not communicated to

24
Similarly unpersuasive is the City’s assertion that no Union has taken a Transit
Effectiveness Subject to arbitration since the passage of Proposition G. It can just as easily be
argued that the Unions settled on proposals they would not have otherwise agreed to, knowing
that they could not prevail in arbitration, given the tilted playing field brought about by
Proposition G.
Therefore, we affirm the ALJ’s conclusion that subdivision (o) is an unreasonable local
rule.
The Merits of Subdivision (q)
Subdivision (q) (which is not limited to the six Transit Effectiveness Subjects), declares
that no side letter or past practice may be deemed precedential or binding by the MTA or any
arbitrator unless the side letter or practice has been approved in writing either by the Director
of Transportation or the Board of Directors and appended to the applicable MOU. As the ALJ
correctly noted, this has a three-fold effect. First, it immediately and retroactively invalidates
all previously negotiated side letters and past practices. This retroactive invalidation
constitutes a unilateral change in working conditions, a clear violation of the MMBA. Second,
subdivision (q) on its face prevents PERB from enforcing any past practice because it is
purportedly not binding on the MTA. Third, it also removes from arbitrators and PERB an
evidentiary tool utilized to ascertain whether a unilateral change has occurred, thereby
preventing the Unions from enforcing MOUs in any arbitrations, including grievance
________________________
voters. (County of Contra Costa (2014) PERB Order Ad-410-M, p. 34; Ross v. RagingWire
Telecommunications, Inc. (2008) 42 Cal.4th 920, 931.)

25
arbitrations.15 (Omnitrans (2009) PERB Decision No. 2030-M, p. 26; Marysville Joint Unified
School District (1983) PERB Decision No. 314 [evidence of past practice used to ascertain
meaning of ambiguous contract language].)
As PERB has held, a side letter is “[a]t its most basic, . . . a contract between the
parties.” (Palomar, supra, PERB Decision No. 2213, p. 9.) A side letter typically modifies,
clarifies or interprets either existing MOU provisions, or addresses issues that are not covered
in an MOU. (Ibid. See also City of Riverside (2009) PERB Decision No. 2027-M [side letter
did not automatically expire at the end of term of the MOU] and Regents of the University of
California (2014) PERB Decision No. 2398-H, pp. 3, 26 [repudiation of a side letter found to
be unfair practice].) By declaring that no side letter may be deemed binding or precedential
unless approved in writing by the Director of Transportation or the Board of Directors,
subdivision (q) retroactively and automatically voids all side letters that have not been
approved in writing by these particular individuals. This is contrary to PERB caselaw and the
MMBA because it unilaterally abrogates the results of the meet and confer process that
produced the side letter. A local rule that dictates this result is therefore unreasonable.
________________________
15 In its brief in support of exceptions, the City attempts to put a gloss on the plain
language of subdivision (q): “. . . the City understands and accepts that past practices can be
used to help interpret a contract provision. There is nothing in section 8A.104(q) that changes
this usage.” (City’s Exceptions, p. 31.) On the contrary, there is nothing in subdivision (q)
that qualifies or insulates the use of past practices to interpret the meaning of a contract.
Especially since we are dealing with a ballot initiative, the City’s post hoc explanation of what
subdivision (q) actually means carries scant weight.

26
MMBA Section 3505.1
The City complains that the ALJ failed to consider MMBA section 3505.116 in his
analysis of subdivision (q). According to the City, Proposition G merely confirms that side
letters and past practices are not binding until approved by the MTA. It therefore cannot be
found to conflict with the MMBA. The premise of the City’s argument is that MMBA section
3505.1 requires that any and all agreements between Unions and management be approved by
the governing body of the local agency, and that any agreements that are not so approved are
void ab initio. We do not read section 3505.1 this way.
The MMBA was enacted in 1968 to strengthen employer-employee communication by
providing a reasonable method of resolving disputes regarding wages, hours and terms and
conditions of employment. (MMBA, § 3500, subd. (a).) For the first time, California public
agencies were required to not only listen to presentations by employee organizations, but to
________________________
16 MMBA section 3505.1 currently provides:
If a tentative agreement is reached by the authorized
representatives of the public agency and a recognized employee
organization or recognized employee organizations, the
governing body shall vote to accept or reject the tentative
agreement within 30 days of the date it is first considered at a
duly noticed public meeting. A decision by the governing body
to reject the tentative agreement shall not bar the filing of a
charge of unfair practice for failure to meet and confer in good
faith. If the governing body adopts the tentative agreement, the
parties shall jointly prepare a written memorandum of
understanding.
This provision was amended effective January 1, 2014 by Statutes 2013, chapter 785.
The previous version read:
If agreement is reached by the representatives of the public
agency and a recognized employee organization or recognized
employee organizations, they shall jointly prepare a written
memorandum of such understanding, which shall not be binding,
and present it to the governing body or its statutory representative
for determination.

27
meet and confer in good faith. (Glendale City Employees’ Association v. City of Glendale
(1975) 15 Cal.3d 328, 336 (City of Glendale).) The culmination of the meet and confer
process is found in MMBA section 3505.1, requiring the joint preparation of a written MOU
which shall not be binding until approved by the governing body of the public agency. (Voters
for Responsible Retirement v. Board of Supervisors (1994) 8 Cal.4th 765, 782.) As the Court
held in City of Glendale, once the governing body adopts the tentative agreement, it is binding
on the public agency. Thus, MMBA section 3505.1 was intended to make MOUs binding on
the public agency once it had approved a tentative agreement, after which time the parties were
to jointly produce a written MOU.
We do not read section 3505.1 so broadly as to upend longstanding principles of labor
law, such as the past practice doctrine or that terms and conditions of employment survive the
expiration of an MOU, absent agreement to the contrary.17 MMBA section 3505.1 merely
establishes that the end product of the meet and confer process is a tentative agreement which
is binding if adopted by the public agency. Notably, “the duty to bargain extends to matters
beyond what might typically be incorporated into a comprehensive MOU.” (San Diego
Housing Commission v. Public Employment Relations Board (2016) 246 Cal.App.4th 1, 9.)
Thus, section 3505.1 is not a license for employers to retroactively negate past practices or side
________________________
17 Both of these principles have been applied to the MMBA, notwithstanding
section 3505.1. (See Riverside Sheriff's Ass'n v. County of Riverside (2003) 106 Cal.App.4th
1285, 1291 [applying PERB’s test for a past practice]; San Joaquin County Employees Assn. v.
City of Stockton (1984) 161 Cal.App.3d 813, 819 [employer violated duty to bargain by failing
to maintain level of benefits provided in expired MOU].)

28
letters, and contrary to the City’s argument, there is nothing in the text of subdivision (q)
limiting it only to prospective effect.18
The City also defends subdivision (q) by pointing out that similar requirements have
been incorporated into some of the MOUs between the Unions and the City, including that
future side letters be approved by the MTA Board of Directors, and declaring that past
practices are not binding unless memorialized in an MOU. This argument ignores the
difference between a bilaterally negotiated agreement and a local rule. There is no dispute, as
a general proposition, that parties may negotiate waivers of their bargaining rights. The fact
that some Unions have agreed to procedures for future side letters, or to set past practices to
writing, has no bearing on whether the City may adopt a local rule that retroactively negates
side letters and past practices.
The City further objects to the ALJ’s conclusions regarding subdivision (q), asserting
that subdivision (q) is merely a manifestation of the City’s right to assure that commitments
made by management are properly approved by the appropriate authorities. The City also
contends that subdivision (q) is consistent with MMBA section 3505.1 and therefore cannot be
in violation of the MMBA.
These arguments do not address the flaw identified by the ALJ, viz., that
subdivision (q) retroactively invalidates past practices and side letters, which results in
unilateral changes in terms and conditions of employment. In addition, subdivision (q) is
not consistent with MMBA section 3505.1. The Charter section permits the Director of
________________________
18 City of Clovis (2009) PERB Decision No. 2074-M, relied on by the City, does not
dictate a different result. That case held that a union’s acceptance of management’s last offer
did not create a binding contract in the absence of the governing body’s ratification pursuant
to section 3505.1. This case does not declare that past practices or side letters can be
retroactively invalidated or removed from the scope of representation under MMBA
section 3504.

29
Transportation to approve a side letter or past practice. Yet MMBA section 3505.1 designates
only the governing body with the power to approve tentative agreements.
Finally, the City asserts that “principles of transparency in government” and the
City’s sunshine ordinance govern how contract commitments can be made. The City contends
that the ALJ’s conclusion that the requirement to disclose and gain approval for side letters
violates the MMBA conflicts with the City’s right to ensure transparency. (City’s Exceptions,
pp. 32-33.) We reject this exception. First, the public’s interest in transparency as it relates to
labor agreements is satisfied by MMBA section 3505.1, which requires a public agency to vote
to accept or reject a tentative agreement at a duly noticed public meeting. Second, as explained
above at pages 13-15, local rules cannot supersede state law governing labor relations of public
agencies. Invalidating side letters and past practices retroactively conflicts with the MMBA
and is consequently invalid. No local rule regarding transparency will supersede these well-
established principles.
The Remedy
The City excepts to the proposed remedy on two grounds—lack of authority and
overbreadth. First, it asserts that PERB does not have the authority to rescind a charter
provision because only the electorate may change the Charter, and that even courts may not
order a municipality to engage in a legislative act.
We agree that PERB lacks the authority to order the City to rescind these Charter
provisions. In City of Palo Alto v. Public Employment Relations Board (2017) 5 Cal.App.5th
1271, 1310, the Court held that ordering a legislative act such as rescission of a legislative act
violates the separation of powers doctrine, and that PERB is empowered only to declare an act

30
of a municipality void and invalid if it violates the MMBA. We therefore amend the proposed
order accordingly.
The City also asserts that the proposed order was overbroad because it purports to
invalidate subdivisions (o) and (q) in their entirety when only particular portions of those
subdivisions were challenged. Particularly with respect to subdivision (q), the City urges that
the scope of the remedy be limited because it exceeds the scope of the complaint. Further,
according to the City, there are portions of subdivision (q) that are unquestionably lawful, such
as the designation of persons who must approve contractual commitments. Essentially, the
City urges that we sever those portions of subdivisions (o) and (q) that are not in conflict with
the MMBA.
Proposition G contained a severance clause that declared the intent of the voters to be
that each portion of Proposition G would have been adopted irrespective of whether any
portions are found to be invalid and that if any portion is found to be invalid, such invalidity
shall not affect any application of the proposition which can be given affect. This clause
establishes a presumption in favor of severance. (California Redevelopment Assn. v.
Matosantos (2011) 53 Cal.4th 231, 270.) However, in order to honor the severance clause, the
portion to be severed and thus saved from invalidity depends on whether the remaining
provisions are grammatically and mechanically severable, and whether it is functionally
severable, i.e., the remaining portion is complete in itself and capable of independent
application. (People’s Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 331-332;
Abbot Laboratories v. Franchise Tax Board (2009) 175 Cal.App.4th 1346, 1358.)
With respect to subdivision (o) of Proposition G, we find that the provisions
highlighted in the complaint that were the subject of litigation are not severable from the

31
subdivision as a whole because they are functionally inseparable from the rest of the
subdivision. The first sentence of subdivision (o) reads: “The voters find that for transit
system employees whose wages, hours and terms and conditions of employment are set by the
Agency, the Agency’s discretion in establishing and adjusting scheduling, deployment,
assignment, staffing, sign ups, and the use and number of part-time transit system personnel
based upon service needs is essential to the effective, efficient, and reliable operation of the
transit system.” This sentence directly refers to the six Transit Effectiveness Subjects that
form the basis for the remainder of the subdivision. It is integral to the meaning and intent of
subdivision (o) and therefore cannot be severed from the other parts of that subdivision.
Likewise the second sentence and third sentence both address the burden of proof,
specifying that: (a) the Unions “have the burden of proving that any restrictions proposed on
the [MTA’s] ability to exercise broad discretion with respect to these matters [—the six Transit
Effectiveness Subjects—] are justified;” and (b) that burden can be met only “by clear and
convincing evidence that the justification for such restrictions [on the agency’s discretion]
outweighs the public’s interest . . . and is consistent with best practices.” (City’s Exceptions,
p. 24, italics added.) Despite the City’s claim that the proposed decision focused on the “clear
and convincing” standard, both sentences contribute to tilting the playing field in favor of the
City, in violation of the MMBA. Nothing in these sentences can be carved out and saved.
The penultimate sentence of subdivision (o) reads: “The mediation/arbitration board
shall not treat the provisions of MOUs for transit system employees adopted prior to the
effective date of this provision as precedential in establishing the terms of a successor
agreement.” This sentence relates to how the arbitration board treats past practices, an issue

32
discussed at length by the ALJ in his treatment of subdivision (q). We therefore decline to
sever this sentence, as it represents part of the purpose of Proposition G.
The final sentence of subdivision (o) reads: “The mediation/arbitration board’s
jurisdiction shall be limited to matters within the mandatory scope of bargaining under state
law.” This is a neutral statement of obvious legal principle, and none of the parties contended
that it violated the MMBA. We therefore sever this sentence from the rest of subdivision (o)
and do not declare it void.
With respect to subdivision (q), we first consider the City’s exception that the ALJ
ruled on parts of this subdivision that were not included in the complaint and then discuss
whether any parts of subdivision (q) can be severed.
The complaint reads in pertinent part: “Respondent also adopted Charter
Section 8A.104(q), regarding past practices and side letters which declares these items not
‘binding’ on Respondent unless approved in writing by the Director of Transportation or,
where appropriate, the Board of Directors.” This concept is expressed in the first and second
sentence of subdivision (q). The third sentence of subdivision (q) prohibits MOUs negotiated
after the passage of Proposition G from requiring that work rules or past practices remain
unchanged during the life of the MOU, “unless the specific work rules or past practices are
explicitly set forth in the MOU.” The fourth sentence provides: “All side-letters shall expire
no later than the expiration date of the MOU.”
The ALJ considered the third and fourth sentences and determined that they too
violated the MMBA. The City is correct that these sentences were not literally quoted in the
complaint. It is therefore appropriate to determine whether the third and fourth sentences may
be properly considered as unalleged violations.

33
The Board may consider allegations not included in the complaint when: (1) the
respondent has had adequate notice and an opportunity to defend against the unalleged matter;
(2) the unalleged conduct is intimately related to the subject matter of the complaint and is part
of the same course of conduct; (3) the matter has been fully litigated; (4) the parties have had
an opportunity to examine and be cross-examined on the issue; and (5) the unalleged conduct
occurred within the same limitations period as those matters alleged in the complaint. (City of
Roseville (2016) PERB Decision No. 2505-M, p. 25; Tahoe-Truckee Unified School District
(1988) PERB Decision No. 668.) Here it is easily determined that the second and fifth factor
have been met. The third and fourth sentences of subdivision (q) are closely related to the
sentence at issue in this case because they are directed at eliminating unapproved past practices
or side letters by requiring that all side letters expire at the end of the term of an MOU and
prohibiting the negotiation of provisions in an MOU that enshrine past practices or work rules
in the MOU unless they are explicitly included in the MOU. This conduct occurred at the
same time as the matters alleged, as it was part of the same Proposition G.
It is a closer question whether the other notice and due process factors were met. In
their opening statements at the administrative hearing, the Unions (except for TWU 250) did
assert that they were facially challenging subdivision (q) and claimed that subdivision (q)
“effectively severely hampers an arbiter [sic] tool of interpretation by not allowing an
arbitrator to consider past practices.” The statement then highlights two aspects of
subdivision (q): (1) the impact on existing side letters and beneficial practices; and (2) the
impact of subdivision (q) on “the mandatory subject of grievance procedure and the parties’
ability to eventually argue to an arbitrator this bidding procedure or this section here is
interpreted this way.” (Reporter’s Transcript, pp. 19-20.) We believe reference to the

34
“mandatory subject of grievance procedure” reasonably put the City on notice that the Unions
contended that the third sentence of subdivision (q) violated the MMBA. Only one witness
was called to testify at the hearing, and he was called by the Unions. The City had an
opportunity to examine him on this subject, but did not do so. The City also declined to call
any witnesses of its own.
At the conclusion of the hearing, a briefing schedule provided for two rounds of briefs,
opening and reply briefs. In its opening brief the Unions argued that subdivision (q) was
unreasonable because it expressly eliminates the use of side letters not expressly approved by
the Director and the “inclusion in MOUs of past practice clauses — that is, clauses requiring
that work rules or past practices remain unchanged during the life of the MOU even if they are
not explicitly set forth in the MOU, . . .” (Unions’ Post-Hearing Brief, p. 21.)
The City’s reply brief met this argument: “The Unions claim that ‘Proposition G
prohibits collective bargaining over past practice clauses and rescinds existing contractual
agreements.’ . . . The Unions are wrong.” (City’s Reply Brief to ALJ, p. 14.) Tellingly, the
City did not assert that this issue concerning the past practice clauses was not alleged in the
complaint and should therefore not be considered. That argument is first raised by the City in
its exceptions to the proposed decision. (Los Angeles County Superior Court (2008) PERB
Decision No. 1979-C, pp. 11-12.)
In the Unions’ post-hearing reply brief to the ALJ, they reiterated their objections to
subdivision (q), namely that it prevents any arbitrator from relying on past practices and
unlawfully restricts negotiations on a mandatory subject of bargaining, grievance procedures.
Their brief also asserts that subdivision (q)’s prohibition against arbitrators relying on past
practices “prevents the parties from negotiating over the mandatory subject of ‘past practice’

35
clauses. Clauses designed to ensure continuance of some or all of the established practices or
local working conditions are the counterpart to ‘zipper clauses’” and subdivision (q) prevents
negotiation of such clauses, thereby unlawfully removing a mandatory subject from the
bargaining table. (Unions’ Post-Hearing Reply brief, pp. 19-20.)
For these reasons, and because the last two sentences of subdivision (q) are inextricably
entwined with the second sentence, which was paraphrased in the complaint, we conclude that
the unalleged violation doctrine applies here. It was appropriate for the ALJ to address the
entirety of subdivision (q). Having concluded that it is an unreasonable rule, we declare it
void. (County of Los Angeles, supra, 160 Cal.App.3d 905, 910.)
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it has been found that the City & County of San Francisco (City) violated the Meyers-
Milias-Brown Act (MMBA). The City adopted unreasonable regulations as a result of the
passage of Proposition G and the provisions added to the City Charter at section 8A.104,
subdivisions (o) and (q), in violation of the MMBA, Government Code section 3507, and
Public Employment Relations Board (PERB) Regulation 32603, subdivision (f). (Cal. Code
Regs., tit. 8, sec. 31001 et seq.). By this conduct, the City also interfered with the right of City
employees to participate in the activities of an employee organization of their own choosing, in
violation of MMBA section 3506 and PERB Regulation 32603, subdivision (a), and denied the
Transport Workers Union of America Local 250-A, Transport Workers Union Local 200,
International Brotherhood of Electrical Workers, Local 6, Service Employees International
Union Local 1021 and International Association of Machinists and Aerospace Workers
Local 1414 (collectively, Unions) their right to represent employees in their employment

36
relations with a public agency, in violation of Government Code section 3503 and PERB
Regulation 32603, subdivision (b).
Pursuant to the MMBA, Government Code section 3509, subdivision (a), it hereby is
ORDERED that Charter section 8A.104, subdivision (o), is void and unenforceable, except for
the last sentence of that subdivision that reads: “The mediation/arbitration board’s jurisdiction
shall be limited to matters within the mandatory scope of the bargaining under state law.”
It is further ORDERED that Charter section 8A.104, subdivision (q), is void and
unenforceable in its entirety. Accordingly, the City is further ORDERED to:
A. 	CEASE AND DESIST FROM:
1. 	Enforcing unreasonable regulations in the form of City Charter
section 8A.104, subdivisions (o) and (q), as adopted through Proposition G.
2. 	Interfering with bargaining unit members’ right to participate in the
activities of an employee organization of their own choosing.
3. 	Denying the Unions their right to represent employees in their
employment relations with the City.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations in the City, where notices to employees customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the City, indicating that the City will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material. In addition to physical posting of paper notices, the Notice shall be

37
posted by electronic message, intranet, internet site, and other electronic means customarily
used by the City to communicate with its employees.
2. 	Within thirty (30) workdays of service of a final decision in this matter,
notify the General Counsel of PERB, or his or her designee, in writing of the steps taken to
comply with the terms of this Order. Continue to report in writing to the General Counsel, or
his or her designee, periodically thereafter as directed. All reports regarding compliance with
this Order shall be served concurrently on the Unions.
Chair Gregersen and Member Banks joined in this Decision.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
TRANSPORT WORKERS UNION OF AMERICA
LOCAL 250-A, TRANSPORT WORKERS
UNION LOCAL 200, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 6, SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 1021,
AND INTERNATIONAL ASSOCIATION OF
MACHINISTS & AEROSPACE WORKERS,
AFL-CIO, LOCAL 1414,
UNFAIR PRACTICE
CASE NO. SF-CE-827-M
PROPOSED DECISION
(April 30, 2013)
Charging Party,
v.
CITY & COUNTY OF SAN FRANCISCO,
Respondent.
Appearances: Law Office of Kenneth C. Absalom by Kenneth C. Absalom and James J.
Achermann, Attorneys, for Transport Workers Union of America Local 250-A; Neyhart,
Anderson, Flynn & Grosboll by Benjamin K. Lunch, Attorney, for Transport Workers Union
Local 200; Leonard Carder by Peter Saltzman, Attorney, for International Brotherhood of
Electrical Workers, Local 6; Weinberg, Roger & Rosenfeld by Alan Crowley, Attorney, for
Service Employees International Union Local 1021, and International Association of
Machinists & Aerospace Workers, AFL-CIO, Local 1414; Meyers, Nave, Riback, Silver &
Wilson by Arthur A. Hartinger and Scott N. Kivel, Attorneys, for City and County of
San Francisco.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Transport Workers Union of America Local 250-A (TWU Local 250-A), Transport
Workers Union Local 200 (TWU Local 200), International Brotherhood of Electrical Workers,
Local 6 (IBEW), Service Employees International Union Local 1021 (SEIU), and International
Association of Machinists and Aerospace Workers, AFL-CIO, Local 1414 (IAMAW), joined
in filing an unfair practice charge against the City and County of San Francisco (City) under

2
the Meyers-Milias-Brown Act (MMBA or Act)1 on May 2, 2011. On September 6, 2011, the
Office of the General Counsel of the Public Employment Relations Board (PERB or Board)
issued a complaint, alleging that the City adopted unreasonable rules for impasse dispute
resolution and the effect of past practices and side letters through a voter initiative known as
Proposition G. This conduct is alleged to violate section 3507 and PERB Regulation
32603(f).2
On September 27, 2011, the City filed its answer to the complaint, denying the material
allegations and raising affirmative defenses.
On October 19, 2011, an informal settlement conference was held, but the matter was
not resolved.
On June 18, 2012, a formal hearing was conducted in Oakland.
On November 19, 2012, the matter was submitted for decision with the filing of post-
hearing briefs.
FINDINGS OF FACT
Each of the charging parties is an “employee organization,” within the meaning of
section 3501(a), and an “exclusive representative” of a bargaining unit of public employees,
within the meaning of PERB Regulation 32016(b). The City is a “public agency” within the
meaning of section 3501(c).
TWU Local 250-A represents transit operators, transit fare inspectors, and automotive
service workers. Transit operators operate the passenger-carrying vehicles of the City’s public
transit system known as the San Francisco Municipal Railway (MUNI). TWU Local 200
________________________
1 The MMBA is codified at Government Code section 3500 et seq. Hereafter all
statutory references are to the Government Code unless otherwise indicated.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

3
represents supervisors and other specialist positions. SEIU represents station agents, signal
operators, fare collectors, parking control officers, and related classifications. IBEW
represents skilled workers in the electrical trade. IAMAW represents automotive mechanics,
machinists, and other skilled metal workers.
City Charter Provisions Preceding Proposition G
The City’s Charter has adopted a “Transit-First Policy.” The policy declares that the
City favors its public transportation system over reliance on private automobiles. It requires
the City’s officers, commissions, and departments to follow this principle in conducting the
City’s affairs, including the administration of the City’s general plan. It commits the City to
new investments in public transit, dedicating portions of City streets to transit vehicles, parking
policies that encourage public transit, and promoting pedestrian and bicycle movement.
The City’s Charter also contains provisions concerning labor relations for the City’s
represented employees. Beginning in the 1970s provisions in the Charter known as the Salary
Stabilization Ordinance established wage levels for City employees based on a survey of
comparable public agencies. Other subjects were determined through collective bargaining.
In 1991, the voters approved a ballot initiative known as Proposition B. Proposition B
amended the Charter to allow unions the option to engage in collective bargaining on wages,
hours, benefits and other terms and conditions of employment. This was coupled with an
impasse dispute resolution procedure culminating in interest arbitration and a prohibition on
the right to strike. Charter section A8.409-4(d) provided that the three-person arbitration board
(consisting of one neutral) would choose by majority vote the package last offer that most
nearly conforms to a list of factors, such as changes in the consumer price index, wages of
other City employees, other demands on City resources, revenue projections, and the City’s
power to raise revenue.

4
In 1994, the voters approved Proposition F. Proposition F repealed the salary survey
process for all employees except safety employees, nurses, and transit operators; in effect,
defaulting all remaining represented units into the collective-bargaining/interest-arbitration
procedure of Proposition B. The wages of transit operators and safety employees were frozen
for one year. The interest arbitration board was required to rule on an issue-by-issue basis
rather than choosing one side’s package last offer. The board was to select whichever “last
offer of settlement on that issue it finds by a preponderance of the evidence presented during
the arbitration most nearly conforms to the factors listed.” To the previous factors were added
consideration of the City’s three-year budget forecast, limitations on the amount and use of
revenues and expenditures, and the City’s ability to meet the costs of the arbitration award. In
arriving at the award, the arbitration board was required to issue written findings on the listed
factors as applicable to the issues determined.
In 1999, Proposition E was adopted, creating the Municipal Transportation Agency
(MTA or Agency) to replace the former supervising authority, the Public Transportation
Commission. Proponents of the measure asserted that the MUNI had suffered declines in
service due to under-funding and a lack of accountability, and that an independent agency free
from political interference was needed to manage the system and make it “comparable to the
best urban transit systems in the world’s major cities.” Proposition E mandated levels of
service and on-time performance and established standards for measuring the system’s
performance. The City was committed to a minimum contribution from its general fund. The
Board of Supervisors was to approve MTA annual budgets; it could reject the budget (with a
two-thirds vote) but not modify it. The MTA was given exclusive authority to set fares, and
any changes were to be submitted to the Board of Supervisors with its proposed budget. The
MTA assumed responsibility for its own labor relations. At the hearing, the current

5
memoranda of understanding (MOU) between the unions and the MTA were entered in the
record indicating the product of their negotiations.3
Proposition E added to the list of interest arbitration factors found in Charter
section A8.409-4 factors pertinent to MTA interest arbitrations only.4 At section 8A.104(n)
the following factors were established: (1) “the interests and welfare of transit riders, residents,
and other members of the public;” and (2) “the Agency’s ability to meet the costs of the
decision of the arbitration board without materially reducing service.” Section 8A.104(o) was
added, containing a finding of the voters that “unscheduled employee absences adversely
affected customer service,” mandating, as a consequence, that the Agency create a
comprehensive plan for the reduction of such absences. The Agency was prohibited from
approving any written agreement restricting MTA’s authority to administer appropriate
discipline for unexcused absences.
Proposition G
In 2010, a citizens’ coalition known as “Fix Muni Coalition,” spearheaded by City
Supervisor Sean Elsbernd, mounted a signature gathering campaign to qualify Proposition G.
Due to the economic difficulties of the time, the City had reopened negotiations with those
unions having contracts and achieved considerable savings needed to close its budget deficit.
No such prospect of relief was available as to the Agency’s transit operators who remained
________________________
3 The most recent TWU Local 250-A MOU affirms the parties’ mutual recognition of
the “substantial problems” facing the MUNI, in light of Proposition E’s “service and
accountability requirements,” and pledges the parties’ intention to meet and confer over new
programs involving or affecting transit operators, as required by the MMBA. Among the
issues identified are industrial injuries, worker’s compensation costs, unscheduled
absenteeism, the safety of passengers and operators, driver-passenger relations, and the
delivery of transportation services.
4 Proposition E added sections 8A.100 through 8A.113. Section 8A.104 deals with the
labor relations authority of MTA’s personnel/labor relations office.

6
under the Salary Stabilization Ordinance. Under those provisions, transit operators were
awarded wages equal to the average salary of transit operators at the two highest paying similar
transit systems in the country. Proposition G proposed to remove transit operators from the
Salary Stabilization Ordinance and place them under the Charter’s mediation/interest
arbitration procedure. As a result, TWU Local 250-A would be treated the same as the other
four unions in this case for purposes of collective bargaining and impasse resolution.
Proposition G qualified for the ballot and was given the subject title “Transit Operator
Wages.” The initiative’s proponents argued in the voter pamphlet that as a result of the Salary
Stabilization Ordinance “MUNI drivers received a $9 million raise while the MTA balanced a
$50 million deficit on the backs of riders.” Meanwhile, “[a]ll other city workers offered
concessions to help balance the City budget, but MUNI drivers refused.” Another argument
from a group named Rescue Muni Board of Directors stated that “Proposition G is about
simple math: if Muni’s costs keep growing faster than its revenues, we’ll be trapped in a
downward spiral of service cuts and higher fares.” Opponents asserted that the proposition
“would do nothing to restore the $62 million in MUNI funds siphoned by other City
departments this year on top of $60 million in state cuts to MUNI in each of the last three
years” that resulted in a 10 percent cut to service. Opponents pointed to a “bloated
bureaucracy” and decried the scapegoating of drivers, while noting that the existing system
made the City one of the few in the country not to experience a transit strike.
Proponents also described MUNI operators as being an undisciplined work force. They
described Proposition G as a “targeted reform of the labor-management culture at MUNI”
which was necessary to “make changes in the work rules so MUNI can provide better service
at reduced cost.” They cited riders’ frustration with a transit agency that does not “know who
will show up to work each day,” allows MUNI operators to “be absent without notice, missing

7
runs and contributing to poor service,” and is prevented from hiring extra drivers to cover the
busiest shifts. Although the subject of wage setting for transit operators may have been the
main impetus for Proposition G, the provisions of the measure engendering the dispute here
have their genesis in the proponents’ dim view of labor discipline. To address this concern,
Proposition G proposed changes to the factors used in determining the outcome in interest
arbitration and to the enforceability of side letters and unwritten past practices.
Proposition G prevailed at the November 10, 2010 election. It added a third special
factor to Charter section 8A.104(n): “the Agency’s ability to efficiently and effectively tailor
work hours and schedules for transit system employees to the public demand for transit
services.”
Pertinent to the dispute here, Proposition G added to the MTA interest arbitration
procedure language identifying six subjects of bargaining to be afforded special treatment in
terms of the burden of proof. Charter section 8A.104(o) states:
The voters find that for transit system employees whose wages,
hours and terms and conditions of employment are set by the
Agency, the Agency’s discretion in establishing and adjusting
scheduling, deployment, assignment, staffing, sign ups, and the
use and number of part-time-transit system personnel based upon
service needs is essential to the effective, efficient, and reliable
operation of the transit system. In any mediation/arbitration
proceeding under Section 8.409-4 with an employee organization
representing transit system employees the employee organization
shall have the burden of proving that any restrictions proposed on
the Agency’s ability to exercise broad discretion with respect to
these matters are justified. To meet this burden, the employee
organization must prove by clear and convincing evidence that
the justification for such restrictions outweighs the public’s
interest in effective, efficient, and reliable transit service and is
consistent with best practices. The mediation/arbitration board
shall not treat the provisions of MOUs for transit system
employees adopted prior to the effective date of this provision as
precedential in establishing the terms of a successor agreement.
The mediation/arbitration board’s jurisdiction shall be limited to
matters within the mandatory scope of bargaining under state law.

8
The following language was also added to section 8A.104(q) pertaining to side letters and
unwritten past practices:
In addition, the voters find that Agency service has been impaired
by the existence of side-letters and reliance on “past practices”
that have been treated as binding or precedential but have not
been expressly authorized by the Board of Directors or the
Director of Transportation, and have not been and are not subject
to public scrutiny. Accordingly, for employees whose wages,
hours and terms and conditions of employment are set by the
Agency, no side-letter or practice within the scope of bargaining
may be deemed binding or precedential by the Agency or any
arbitrator unless the side-letter or practice has been approved in
writing by the Director of Transportation or, where appropriate,
by the Board of Directors upon the recommendation of the
Director of Transportation and appended to the MOU of the
affected employee organization or organizations subject to the
procedures set out in this charter. No MOU or arbitration award
approved or issued after the November 2010 general election
shall provide or require that work rules or past practices remain
unchanged during the life of the MOU, unless the specific work
rules or past practices are explicitly set forth in the MOU. All
side letters shall expire no later than the expiration date of the
MOU.
A number of the proposition’s legislative findings, listed in the voter pamphlet, reveal the
intent of these provisions: (1) for public transit service to be effective, efficient, and reliable,
labor agreements must be supportive of that goal; (2) labor costs are the most significant
portion of MTA’s budget; (3) higher labor cost inevitably undercuts MTA’s ability to preserve
and enhance services; (4) some provisions of existing labor agreements restrict the ability of
the MTA to schedule, deploy, and assign employees in a manner that reflects services and
ridership needs, and are therefore an impediment to effective, efficient, and reliable transit
operations; (5) antiquated and inflexible rules contained in labor agreements undercut the
City’s Transit First Policy by failing to ensure that employees have their primary work hours
scheduled at the times when their services are most needed; (6) past practices and side-letters

9
that are not spelled out in an MOU preserve antiquated and inflexible practices that impair
transit operations; (7) some past practices and side letters have not been subjected to public
scrutiny because they have not been approved by MTA; (8) the MTA should operate based on
best practices, not past practices; (9) to achieve the Transit First policy, labor relations at MTA
must be guided by the principle of “Service First,” giving first priority to the needs of the
people of San Francisco who rely on the Agency; and (10) a broad overhaul of the
compensation structure and labor rules and practices is necessary to preserve and expand
transit services to the public.5
Bargaining History Regarding the Six Special Subjects
At the time of the hearing there was no history of interest arbitration determining the
outcome of the six special subjects identified in section 8A.104(o). However the parties’
bargaining history regarding the six subjects as reflected in the parties’ negotiated contractual
provisions is offered to assist in the analysis of the issues. Because the initiative principally
targeted transit operators, the contractual provisions of TWU Local 250-A’s last MOU (2004-
2011) prior to the effective date of the Charter amendment have been selected for purposes of
illustration.
The MOU distinguishes between regular operators and part-time operators. (Art. 12.)
To stay in regular status an operator must be available for his regularly scheduled run. “Extra
operators” (regular operators working as extras and assigned to the “extra board”) must report
on time daily and be available for runs assigned to them. The MTA commits to maintaining
700 “weekend off” runs, which are regular runs and extra board assignments for Saturday and
________________________
5 Supervisor Elsbernd was not a participant in any labor negotiations. However he
communicated to IBEW in 2011 that the measure would provide the City leverage to ensure that
economic concessions were obtained through the reopener negotiations with the union that year.

10
Sunday. The parties have agreed to an “Available Operator Force” equal to the number of
scheduled runs and “blocks” plus an extra board equal to 27.5 percent of the number of
scheduled runs and blocks. The parties identified 1468 scheduled runs and blocks, all of which
are to be staffed. If the parties’ agreed-upon Available Operator Force (1,872 as of 2001) falls
below that number, the MTA will convert part-time operators to full-time status. Part-time
operators bid separately for part-time runs and the part-time extra board. Open runs may result
from lack of operators as well as a shortage of equipment. TWU Local 250-A has pledged to
work with MTA to reduce operator absenteeism.
Scheduling and assignment are specifically referenced within one article of the MOU.
(Art. 14.) While recognizing that the MTA has the sole right to “schedule service in the most
cost effective manner consistent with the needs of the public,” the parties agree that the
standards and criteria for setting schedules is of vital importance to the operation of MUNI and
TWU members’ acceptance of the schedule-setting process. To that end, the MTA agrees to
provide TWU information regarding schedule changes and agrees to discuss them. MTA’s
decision to make a schedule change may be grieved if it is a hazard to the operators’ health and
safety. The MTA has agreed to provide adequate running, recovery and lay-over time in each
run to address the operators’ interest in health and safety. An operator may be ordered to work
a maximum of 1.5 hours past his or her scheduled time of relief if the operator’s relief fails to
report or because of an unanticipated disruption in service. Other provisions in Article 14
address reassignments of runs. Separately, Article 18 (“Work on Regular Day Off (RDO)”)
authorizes the MTA to render an operator ineligible to work on a regular day off, in a number
of circumstances, and minimally when the operator has an unexcused absence or fails to report
with less than eight hours of accrued sick leave.

11
Sign-ups involve the operators’ selection of runs and work locations. (Art. 15.) There
are one general sign-up and three division sign-ups each calendar year. Seniority governs sign-
ups and work assignments. Conducting the sign-up process during regular work hours has
been recognized to cause disruptions in service.
The use and number of part-time operators, who are represented by TWU, is addressed
in a separate article of the MOU. (Art. 11.) The parties’ last MOU limits the number of part-
time operators to 220, or 12 percent of the regular operator pool. Layoffs must occur within
the part-time pool, before resorting to the regular pool. Part-time operators are guaranteed
3.4 hours per day and the pool is guaranteed 100 part-time runs.
Deployment and staffing are subjects not readily ascertained as having been the
subjects of completed bargaining, except to the extent they may be addressed in the provisions
cited above. The management rights provision reserves the managerial prerogative over, inter
alia, operating and personnel schedules, determining work loads, arranging transfers, and
assigning personnel.
Interest Arbitration Experience as to Other Transit Issues Under the Charter
The City offered into evidence an interest arbitration opinion and award issued by the
panel in June 2012 involving MTA and IBEW. The neutral third panel member was
Arbitrator/Mediator Christopher Burdick. As reflected in the opinion, prior to the taking of
evidence, the parties were free to discuss their differences on disputed issues, reach tentative
agreements, and narrow the issues to be submitted for decision. The party whose proposal
sought a change in the status quo bore the burden of proof in persuading the panel to accept the
proposal. The burden of proof was met by a preponderance of the evidence. Only one issue
was submitted to the panel for determination: whether the City could begin charging
employees for parking their cars on MTA controlled property. The MTA had a longstanding

12
past practice of providing such parking gratis, a practice which was at some point incorporated
in the parties’ agreement pursuant to a 1999 arbitrator’s award.
The decision is instructive in terms of how the panel applies the factors listed in the
Charter, including those that apply solely to MTA by virtue of section 8A.104(n). When asked
to consider and apply the interests and welfare of transit riders, residents, and other members
of the public and MTA’s ability to meet the costs of the decision without materially reducing
service, the arbitrator declined, citing his lack of competence to pass judgment on the “social,
environmental, ecological and political values underlying the City’s Transit First Policy.”
Turning last to the cardinal factor listed in A8.409-4(d)—which last offer “most nearly
conforms to those factors traditionally taken into consideration in the determination of wages,
hours, benefits and term and condition of public and private employment”—the arbitrator
began with a detailed analysis of the factors generally accepted in determining public sector
interest arbitration disputes, citing the authoritative text How Arbitration Works. (Elkouri &
Elkouri, How Arbitration Works (7th ed. 2012) (Elkouri & Elkouri).) The Elkouris’ were cited
for acknowledging that the “public interest is an important consideration” in such disputes as
recognized in statutes around the country. Specifically in reference to paid parking as a
disincentive to use of private automobiles weighed against the expense of parking in the City
and its impact on wages, the arbitrator rejected the City’s argument that the panel was required
by Proposition G to apply factors that go “beyond the city’s financial resources and health and
the relative comparability of employee wages and other employment terms” to consider
“‘laudable’ goals and motives not necessarily involving the specific interests of the employee
and employer in the employment context.” The arbitrator disclaimed any expertise in transit
policy matters but left open future presentations by opposing “arm[ies] of policy and
transportation experts” on such matters.

13
Kevin Hughes is IBEW’s Assistant Business Manager. Hughes testified not to the
actual conduct or outcome of an interest arbitration under Proposition G’s rules but to the
chilling effect they had on IBEW’s ability to have proposals on the specified subjects taken
seriously in bargaining preceding the impasse procedures. MTA’s representatives resisted the
union’s proposals, warning him that the union would have a difficult time prevailing in interest
arbitration because of the new rules.
ISSUE
Do the provisions of Proposition G constitute an unreasonable rule within the meaning
of the MMBA?
CONCLUSIONS OF LAW
The unions contend that the City committed an unfair practice by adopting
sections 8A.104(o) and 8A.104(q) because they limit and frustrate the meet-and-confer
requirement of the MMBA and therefore constitute an unreasonable rule or regulation. The
complaint alleges that the City’s adoption of these provisions constituted an unfair practice
under PERB Regulation 32603(f), which makes it an unfair practice for the employer to
“[a]dopt or enforce a local rule that is not in conformance with MMBA.”
Regulation 32603(f) defines an unfair practice developed specifically for the MMBA,
one that acts as a control on the special authority the MMBA grants to public agencies to adopt
procedural rules for the administration of their labor relations. (Sec. 3507; see International
Federation of Prof. & Technical Engineers v. City and County of San Francisco (2000)
79 Cal.App.4th 1300, 1305-1306.) Where legislative action by a local governmental agency is
attacked as unreasonable, the burden of proof is on the attacking party. Adopted regulations
are presumed to be reasonable in the absence of proof to the contrary. (Organization of Deputy
Sheriffs of San Mateo County, Inc. v. County of San Mateo (1975) 48 Cal.App.3d 331, 338.)

14
In County of Monterey (2004) PERB Decision No. 1663-M, PERB held that a violation
of Regulation 32603(f) requires the charging party to demonstrate that the “local rule or
regulation abridges the exercise of a fundamental right, or frustrates the fulfillment of an
affirmative duty, prescribed by the MMBA.” (Id., adopting administrative law judge’s
proposed decision at pp. 28-29; see also International Brotherhood of Electrical Workers v.
City of Gridley (1983) 34 Cal.3d 191, 199-200 [MMBA permits the employer to adopt
reasonable procedural rules but not ones that have the substantive effect of denying statutory
rights].)
The MMBA specifically authorizes public agencies to adopt reasonable procedures for
the resolution of disputes involving wages, hours and other terms and conditions of employment.
(Sec. 3507(a)(5).) In this context, PERB has considered the reasonableness of the City’s
interest arbitration provisions on two occasions, rejecting the union’s challenge both times.
(City & County of San Francisco (2007) PERB Decision No. 1890-M [provisions do not lack
sufficient guidance as to when parties reach impasse]; City & County of San Francisco (2009)
PERB Decision No. 2041-M [interest arbitration does not violate the MMBA by denying the
union its right to strike].)
The Statutory Context of Public Sector Interest Arbitration
Interest arbitration is well established as a mechanism for resolving deadlocked
collective negotiations in both the private and public sector. By submitting the resolution of
conflicts between the parties’ last offers leading to the bargaining impasse, the traditional
economic weapons potentially in play are removed as outcome determinants. Although
interest arbitration exists in the private sector, statutorily mandated interest arbitration in the
public sector constitutes a significant adaptation of the basic framework of collective

15
bargaining.6 (See NLRB v. Columbus Printing Pressmen and Assistants’ Union (5th Cir. 1976)
543 F.2d 1161.)
In NLRB v. Insurance Agents’ International Union (1960) 361 U.S. 477, the U.S.
Supreme Court held that a union’s work-slowdown tactics designed to achieve goals at the
bargaining table while its representatives negotiated at the table in good faith were not
unlawful and that the intervention by the National Labor Relations Board (NLRB) in a
bargaining dispute to ban those tactics conflicted with the legislative mandate for board
neutrality. The court noted past criticisms of the NLRB’s application of the test of good faith
bargaining as to some degree judging employers by their willingness to grant concessions.
(Id. at p. 486.) The court emphasized that Congress had no concern with the substantive
outcome of negotiations but intended only to establish procedural rules governing the
sometimes visceral engagement that characterizes collective bargaining. (Id. at pp. 485-486.)
The substance of the parties’ agreement in the private sector is the product not only of the
negotiations but the threat and/or exercise of economic weapons:
It must be realized that collective bargaining, under a system
where the Government does not attempt to control the results of
negotiations, cannot be equated with an academic collective
search for truth—or even with what might be thought to be the
ideal of one. The parties—even granting the modification of
views that may come from a realization of economic
interdependence—still proceed from contrary and to an extent
antagonistic viewpoints and concepts of self-interest. The system
has not reached the ideal of the philosophic notion that perfect
understanding among people would lead to perfect agreement
among them on values. The presence of economic weapons in
reserve, and their actual exercise on occasion by the parties, is
________________________
6 Following strikes in 1966 and 1980, the Transport Workers Union and the City of
New York agreed to emergency legislation providing for interest arbitration in lieu of the
union’s right to strike. This led ultimately to the passage of an amendment to the Taylor Law
in 1986, making the procedure applicable to all transit employees. (Anderson & Krause,
Interest Arbitration: the Alternative to the Strike (1987) 56 Fordham Law Rev. 153, 153-154.)

16
part and parcel of the system that the Wagner and Taft-Hartley
Acts have recognized.
(Id. at pp. 488-489; see also H. K. Porter, Co., Inc. v. NLRB (1970) 397 U.S. 99, 108
[bargaining occurs under governmental supervision of the procedure alone without any official
compulsion over the actual terms of the contract].)7
This country’s relatively more recent public sector collective bargaining statutes have
been grounded in this fundamental construct. The private and public sector statutes are quite
similar in concept and differ mainly in terms of the scope of representation and procedures for
impasse resolution. In regard to impasse resolution procedures, the public sector statutes seek
to protect the interests of the public while preserving the principle that labor and management
must constructively engage each other in bargaining as they find each other throughout the
process. In County Sanitation District No. 2 v. Los Angeles County Employees’ Assn. (1985)
38 Cal.3d 564 (County Sanitation District), the California Supreme Court concluded that the
MMBA does not prohibit the right to strike, stating: “[T]the MMBA establishes a system of
rights and protections for public employees which closely mirrors those enjoyed by workers in
the private sector.” (Id. at p. 573.) In concluding that as a matter of tort law, public employee
strikes were not prohibited (except to the extent they constitute an “imminent threat to health
and safety”), the court rejected arguments that public employee unions would wield
unreasonable leverage if allowed to strike, including one based on inelasticity in the supply of
public services. The court noted a number of factors tempering the fear that the bargaining
process would become distorted, including the public’s concern over the possibility of
increasing tax rates resulting from exorbitant concessions in bargaining and the fact that some
________________________
7 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act where the provisions are similar. (Firefighters
Union v. City of Vallejo (1974) 12 Cal.3d 608.)

17
public services involve user fees that if increased would be “clearly visible to the public.”
(Id. at pp. 576-578.) The court assumed that public employers are capable of bargaining with
economic rather than political objectives in the forefront and rejecting union demands deemed
unacceptable notwithstanding the right to strike. (Id. at pp. 578-579.)
In City & County of San Francisco, supra, PERB Decision No. 2041-M, PERB
concluded that the voters’ approval of interest arbitration resulting in the compulsion to use
that process was not an unreasonable rule because interest arbitration has been recognized as
an appropriate means of resolving bargaining impasses. (Id., adopting proposed decision of the
administrative law judge at pp. 27-29.) The decision also cites the legislative history of the
Charter provision as establishing a quid pro quo for the forfeiture of the right to strike by
substituting a fair and equitable means for the parties to achieve their contract objectives.
(City & County of San Francisco, supra, PERB Decision No. 2041-M, adopting proposed
decision of the administrative law judge at p. 32; Firefighters Union v. City of Vallejo, supra,
12 Cal.3d 608, 622-623 [interest arbitration must allow arbitration of the full range of
negotiable issues].) Other state courts have relied specifically on the quid pro quo concept to
uphold interest arbitration against legal challenge. (Fraternal Order of Police, Lodge No. 165
v. City of Choctaw (Okla. 1996) 933 P.2d 261, 267; Medford Firefighters Assn. v. City of
Medford (Or. 1979) 595 P.2d 1268, 1271.)
Our systems of collective bargaining assume that the parties engage each other in
relative equipoise. This principle is essential to the MMBA’s goal of good faith bargaining:
It is universally recognized that in the private sector, the bilateral
determination of wages and working conditions through a
collective bargaining process, in which both sides possess
relatively equal strength, facilitates understanding and more
harmonious relations between employers and their employees. In
the absence of some means of equalizing the parties' respective
bargaining positions, such as a credible strike threat, both sides

18
are less likely to bargain in good faith; this in turn leads to
unsatisfactory and acrimonious labor relations and ironically to
more and longer strikes. Equally as important, the possibility of a
strike often provides the best impetus for parties to reach an
agreement at the bargaining table, because both parties lose if a
strike actually comes to pass. Thus by providing a clear incentive
for resolving disputes, a credible strike threat may serve to avert,
rather than to encourage, work stoppages.
(County Sanitation District, supra, 38 Cal.3d at p. 583.) Thus a necessary function of the
collective bargaining statute, whether enforcing mandatory interest arbitration or not, is to
ensure fairness through the adoption of neutral rules of engagement, ones which are non-
normative in outcome terms and grounded in a presumption that the parties engage each other
on a relatively level playing field. (See Anderson & Krause, Interest Arbitration: the
Alternative to the Strike, supra, 56 Fordham Law Rev. 153, 155, 179 [interest arbitration
enables the labor participants to retain the leverage necessary to bargain effectively; either the
right to strike or interest arbitration is needed to make collective bargaining equitable].)
Public sector interest arbitration has fulfilled this aspiration and maintained fidelity to
the essential principles of collective bargaining. The most commonly voiced criticism of
interest arbitration arises from the perception that the arbitrator’s task is “more nearly
legislative than judicial.” (Elkouri & Elkouri, supra, at p. 22-12 [citation omitted]; see
County of Riverside v. Superior Court (2003) 30 Cal.4th 278.) To avoid this tendency for
arbitrary and/or subjective outcomes, a number of standards have come into use. (City of
Rocky River v. State Employment Relations Bd. (Ohio 1989) 539 N.E.2d 103, 112-113
[unlawful delegation challenge rejected because standards were adequate].) In the public
sector these standards are typically embodied in legislation. (Elkouri & Elkouri, supra, at
p. 22-5.) By one survey the criteria most often employed in one set of public sector
arbitrations were wage comparability, ability to pay, and inflation/cost of living, in that order.

19
(Id. at p. 22-64.) It has been suggested that the dangers of legislating can most easily be
avoided if the arbitrator’s primary role is to discover what the parties would have agreed to had
they completed bargaining. (See Elkouri & Elkouri, supra, at p. 22-12 [citation omitted].)
One author has stated that reliance on the wage comparability factor is consistent with this
principle of outcome prediction because “[a]greements reached in comparable communities
provide powerful evidence of the agreement the parties before the arbitrator would have
reached had their negotiations been successful.” (Grodin, Weisberger & Malin, Public Sector
Employment (2004) p. 339; Elkouri & Elkouri, supra, at p. 22-5 [interest arbitration is a
continuation of collective bargaining more than an adjudication].)
Stated differently, “[o]ne of the most compelling considerations must be what has
happened in free and successful collective bargaining.” (Elkouri & Elkouri, supra, at p. 22-69
[citation omitted].) These outcomes indicate what experienced bargainers “consider to be
‘just’.” (Ibid.) The Elkouris explain how the comparability factor is applied in practice:
Most arbitrators will critically examine financial data presented
to them and raise questions about such matters as available funds
and alternative priorities. An ability-to-pay argument is likely to
carry the most weight when an employer can demonstrate that it
has done everything in its power to overcome an adverse
financial position, both absolutely and in relation to what
comparable public employers have done. However, an arbitrator
is more likely to rule in favor of a union if the employer has not
made sufficient taxing efforts as measured against comparable
communities.
(Elkouri & Elkouri, supra, at p. 22-64.)
Over time the “interest of the public” has also gained acceptance as a factor in public
sector interest arbitrations. (Elkouri & Elkouri, supra, at p. 22-110.) The Elkouris submit that
the public, although not a direct party, has a vital interest in the settlement of some disputes,
yet despite it being a “ubiquitous” factor, they concede it is an “ill-defined” one. (Ibid.) Other

20
authors maintain that such phrases as “interest and welfare of the public” and its kin typically
and specifically relate to “ability to pay,” “bargaining patterns,” “historic parity relationships,”
and “overall allocation of the employer’s resources.” (Anderson & Krause, Interest
Arbitration: the Alternative to the Strike, supra, 56 Fordham L.Rev. at pp. 161-162.) As
currently articulated the interest of the public factor is closely related to the other broad
factors. For example, overall allocation of the employer’s resources is related to parity of one
bargaining unit to another of the same employer, ability to pay, and the competing interests of
the public for the various types of services the municipality is obligated to provide. On the
other hand, the Burdick opinion reveals one neutral’s rejection of the Transit First policy
arguments as being too remote to the bargaining relationship.
The Six Special Subjects
The unions argue that section 8A.104(o) is unreasonable both on its face and as applied.
(See County of Monterey, supra, PERB Decision No. 1663-M.) The unions’ facial challenge
is the more direct argument and springs from the language of the statute itself. TWU
Local 250-A argues that Proposition G’s unreasonableness arises from its imposition of a
heavy burden of proof on only one party to the arbitration as to matters that are indisputably
mandatory subjects of bargaining. It notes that PERB’s prior acceptance of the City’s
mandated interest arbitration assumed the existence of an even-handed procedure in which the
panel determines which offer “most nearly conforms to the factors traditionally taken into
consideration in the determination of wages, hours, benefits and terms and conditions of public
and private employment” based on the simple preponderance of evidence standard. (City &
County of San Francisco, supra, PERB Decision No. 2041-M; Charter, sec. A8.409-4(d).) The
heavier burden of proof imposed not only reduces the union’s chance of prevailing in the
interest arbitration but undermines the City’s incentive to bargain in good faith in the

21
negotiations leading up to impasse. In short, TWU Local 250-A argues that the clear and
convincing standard of proof is irreconcilable with the preponderance of the evidence standard
for all other subjects—which, by implication, is a fair and evenly applied standard.
IBEW takes this argument a step further, asserting that section 8A.104(o) creates a
presumption that any union bargaining proposal related to the six subjects is contrary to the
public’s interest in effective, efficient and reliable transit service. That is so because any union
proposal would necessarily operate as a “restriction” of some kind on MTA’s ability to
“exercise broad discretion” and because that discretion is deemed “essential” to the public’s
interest in effective, efficient and reliable transit service.
The City maintains that the new criteria regarding the six subjects of bargaining merely
add to the Charter’s existing language requiring that the arbitration panel consider the transit
riding public’s interest in an efficient system, except now those factors require the panel to
place “great emphasis” on that interest. The City does not dispute that the higher standard of
proof may disadvantage the unions because it only applies to bargaining proposals made by the
unions. But it asserts that Proposition G cannot conflict with the MMBA because the
electorate’s legislative findings are unassailable unless demonstrated to be unreasonable or
arbitrary. (See Amwest Surety Insurance Co. v. Wilson (1995) 11 Cal.4th 1243, 1253.) The
City emphasizes that the voters of San Francisco have determined that the preponderance of
the evidence standard is not sufficient to protect and promote their stated policy priority for
transit service. In addition, the City contends that the MMBA “expressly permits local
agencies to retain final authority to adopt, or to reject, bargaining proposals.” Thus, if without
interest arbitration a public agency can lawfully implement employment terms after good faith
bargaining, and because interest arbitration is an added benefit for labor, a fortiori, a procedure
that only guides the decisionmaker cannot conflict with the statute.

22
TWU Local 250-A identifies the concern with section 8A.104(o) most readily apparent
from its language, namely, its discriminatory application of the burden of proof. This conflicts
with the notion that the parties begin negotiations on a level playing field, and remain there
upon reaching impasse and entering the impasse resolution phase. Presently the MTA can
make any number of proposals against the unions’ interest on the six subjects without facing
the heightened scrutiny of this regulation. For example, the MTA, in furtherance of its interest
in scheduling and assignments, could propose to eliminate recovery and lay-over time during
runs or grant itself the discretion to hold an operator for four hours rather than the current
1.5 hours, when the operator assigned to relieve the operator fails to report. Such proposals
logically advance the public’s expressed interest greater efficiency. Although the arbitration
panel might place the burden on MTA to justify the proposal because it constitutes a change in
the status quo, it would not require MTA to demonstrate that its interest in efficiency
outweighed the operators’ interest in health and safety by clear and convincing proof. Nor
would MTA face an opposing interest deemed to be “essential” to the operators or its union.
Section 8A.104(o) encounters an additional problem as a result of the Charter’s
elevated burden. The unions rightly maintain that the requirement’s principal constraint arises
from the conflict with the free reign interest arbitrators are traditionally afforded because
consideration is limited to a single standard directed at the public’s interest in a more efficient
transit system. No other factors listed in the Charter require the unions to meet the clear and
convincing proof standard. If the unions cannot meet this standard the other factors do not
come into play. Thus the new standards reject the holistic analysis essential to the equitable
nature of interest arbitration. The arbitration panel must have the “freedom to weigh the
standards, to ‘mix the porridge,’ so to speak,” because the result depends on the way all of the

23
standards are applied together. (Elkouri & Elkouri, How Arbitration Works (6th ed. 2003)
pp. 1101-1102.)
Taking the point further, Benjamin Aaron, a principal architect of California’s public
sector collective bargaining statutes, claims that burdens of proof have no place in arbitrations,
except in disciplinary cases in general and discharge cases in particular. (Aaron, Some
Procedural Problems in Arbitration (1957) 10 Vanderbilt L.Rev. 733, 742.) In a grievance
arbitration contract issue, he submits, neither side has a burden of proof or disproof, but both
have an obligation to cooperate in an effort to bring out the facts and arguments relevant to the
dispute and give the arbitrator as much guidance as possible. (Id. at pp. 739, 742.) Aaron
believes such mechanisms designed to provide a tactical advantage to one party, as in court
trials, permanently impair the collective bargaining process because they undermine the
parties’ ongoing cooperative relationship. (Id. at p. 739.) Even more so than contract dispute
arbitration, interest arbitration is a direct extension of the bargaining process that aims to
promote the parties’ cooperative relationship by providing them a means to craft a solution to
their negotiations impasse. (Anderson & Krause, Interest Arbitration: the Alternative to the
Strike, supra, 56 Fordham L.Rev. at p. 179 [the task is to legislate the terms of employment,
not to prove or disprove a particular set of facts].) While some have claimed that interest
arbitration has a chilling effect on successful bargaining even without the type of evidentiary
advantage created by Proposition G (by encouraging parties to gamble on the outcome of
arbitration), that effect is undoubtedly more pronounced here in the City’s favor due to the
imposition of the clear and convincing standard.
Contrary to the unions’ assertion that such the clear and convincing standard only arises
as a result of contractual agreement, this burden of proof also arises from notions of workplace
justice and the inherent authority of the arbitrator. (Aaron, Some Procedural Problems in

24
Arbitration, supra, 10 Vanderbilt L.Rev. at pp. 740-742.) However the unions are correct that
the standard is a strictly limited exception that only applies in disciplinary grievance arbitration
(absent agreement otherwise of course). (Elkouri & Eklouri, supra, at p. 8-104.) The rationale
is that a finding of misconduct has a highly stigmatizing effect that can severely diminish the
employee’s future employability, including an effective ban from particular lines of work.
(Id. at p. 15-26, fn. 119, citing City of Kankakee, Ill. (Wolff, 1991) 97 Lab.Arb.Rpts. 564,
569.) No such special considerations are advanced by the City here to justify the heightened
standard for interest arbitration.
IBEW’s objection to the language of section 8A.104(o)’s characterization of MTA’s
discretion with respect to the six subjects because it provides the City with the prospect of near
certain victory in every instance is close to the mark. Setting aside the higher burden of proof
and its selective application, if section 8A.104(o) read simply that the “employee organization
must prove . . . that the justification for such restrictions outweighs the public’s interest in
effective, efficient, and reliable transit service,” the requirement would be at least consistent
with, and perhaps merely redundant to, other factors that already take the public’s interest in
efficient transit into account. (Charter, sec. 8A.104(n).) But here the Charter requires that the
unions’ justification address a particular burden. This burden refers to the antecedent
legislative finding of the voters that MTA’s discretion with respect to the six subjects is
“essential” to an efficient system, together with the requirement that any union proposal
overcome MTA’s interest in its “ability to exercise broad discretion” as to these subjects.
(Emphasis added.) This burden handicaps the unions by giving especially great weight to
MTA’s managerial discretion in opposition to the unions’ interest in negotiable subjects.
Section 8A.104(o) also imports a subjective standard that invites circular reasoning by MTA
because management’s discretion is deemed essential to achieving MTA’s goals as a transit

25
system. In contrast, an objective standard might require that MTA demonstrate that other means
to achieve the same level of efficiency had been considered and rejected as more costly.
Moreover, like the burden of proof, the gloss placed on the new factor inhibits
negotiations prior to impasse by encouraging the assertion of scope of representation
arguments by the City at the interest arbitration stage, long after those issues would have been
decided at the bargaining table. (See Healdsburg Union High School District and Healdsburg
Union School District/San Mateo City School District (1984) PERB Decision No. 375 [where
an employer believes a matter to be outside the scope of mandatory meeting and conferring, it
is obliged to explore the matter at the bargaining table].) As reflected in the parties’
negotiating history, there is nothing about the six subjects that suggests they are non-negotiable
based on managerial prerogative. (See Claremont Police Officers Assn. v. City of Claremont
(2006) 39 Cal.4th 623, 635 [rejection of overbroad assertion of managerial prerogative in favor
of weighing test]; Building Material & Construction Teamsters’ Union v. Farrell (1986)
41 Cal.3d 651, 660, 664 [rejection of the city’s assertion that its action was exempted as a
fundamental policy decision because it concerned the effective operation of local government].)
At the same time, as Hughes testified, MTA bargaining representatives openly articulated
doubt about the prospects of IBEW prevailing in interest arbitration on proposals dealing with
the six subjects without asserting their non-negotiability.8
________________________
8 The City cites the fact that agreements were reached on these subjects in the recent
negotiations. This does not deny the chilling effect. (See Hoh, Interest Arbitration: Its Effects
on Collective Bargaining in Montana’s Protective Services (2007) 32 Montana Lawyer 8, 10.)
Hoh notes that the chilling effect is greater in issue-by-issue arbitration than final-offer
arbitration, but cites research indicating that even in the former the number of issues reaching
arbitration lessens over time as the process becomes less of a judicial procedure particularly in
tripartite arbitration systems. But where as here one side maintains a clear advantage over the
other throughout the process, the chilling effect is easily predicted: the more distant the parties
are on the issue or the weightier its value, the greater the effect.

26
By requiring that the unions prove their proposals are consistent with best practices,
section 8A.104(o) is discriminatory in yet another respect. Proposition G does not define best
practices except to say they are not past practices. If the panel is to effectuate the intent of the
legislation, those findings place all of the unions’ historically achieved bargaining objectives in
opposition to the hortatory new standard. (Proposition G, sec. 1 (Findings) [“MTA should
operate on based on best practices, not past practices”; “past practices’ . . . not spelled out in an
MOU preserve antiquated and inflexible practices that impair transit operations”].) Best
practices are commonly understood to be ones aspiring toward achievement of the employer’s
mission; to be read here as efficient transit and greater levels of service at lower cost.9 Taking
the Proposition G proponents at their word, prior successes won by labor are contrary to the
interests of riders because those gains have come at the expense of increased fares and/or
reduced service. Hence any new proposals adding costs or administrative burdens on
management, or restricting its broad discretion, are likely not to prevail under the new
guidelines.
California law is consistent with federal labor precedent in confining legislation on
collective bargaining to the procedural aspects of the process, rather than dictating the
substantive terms of the parties’ agreement. (People ex rel. Seal Beach Police Officers Assn. v.
City of Seal Beach (1984) 36 Cal.3d 591, 600, fn. 11; Huntington Beach Police Officers’ Assn.
v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 499-503.) Proposition G did not
implement neutral rules for interest arbitration that promote harmonious labor relations.
Instead Proposition G’s added significant weight to management’s side of the scale in interest
________________________
9 The City cites definitions of “best practices” that include “a method or technique that
has consistently shown results superior to those achieved with other means” (from
“wikipedia.com”) and “guidelines which are used to obtain the most efficient and effective
way of completing a task using repeatable and proven procedures” (from “webopedia.com”).

27
arbitration, while openly announcing through its legislative findings the intention for a “broad
overhaul of the compensation structure and labor rules and practices” deemed “necessary to
preserve and expand transit services to the public.” While it is true, as the City maintains, that
the collective bargaining process envisioned by the MMBA permits an employer to oppose and
reject any proposals made by the unions in the absence of interest arbitration, an interest
arbitration process predicated on forfeiture of the right to economic weapons must maintain a
level playing field. That is not the case with section 8A.104(o).
It is concluded that Proposition G’s evidentiary standard unreasonably abridges the
unions’ right to represent their unit members and frustrates the parties’ duty to meet and confer
in good faith under the MMBA.
Side Letters and Past Practices
The unions contend that section 8A.104(q) conflicts with the MMBA because it
retroactively voids side letters and past practices not expressly approved by the Director of
Transportation or the MTA governing board and appended to the MOU, infringes on their right
to preserve past practices through language in the MOUs, and prematurely terminates existing
side letters.
Side letters and unwritten past practices exist parallel to the negotiated terms of the
parties’ MOU and as such are enforceable rights. Side letters are the product of the meet-and-
confer process itself and are no less binding than collective bargaining agreements. (Palomar
Community College District (2011) PERB Decision No. 2213.) Past practices acquire the
status of terms and conditions of employment if they are sufficiently regular, understood, and
accepted by the parties. (Elkouri & Elkouri, supra, at pp. 12-2-12-4, citing Metal Specialty
Company (Volz, 1962) 39 Lab.Arb.Rpts. 1265, 1269; Alpena General Hospital (Jones, 1967)
50 Lab.Arb.Rpts. 48, 51.) Past practices are enforceable through PERB’s processes to the

28
extent a repudiation of such a practice violates the duty to bargain. (Omnitrans (2009) PERB
Decision No. 2030-M, p. 27 [a past practice “must be (1) unequivocal; (2) clearly enunciated
and acted upon; and (3) readily ascertainable over a reasonable period of time as a fixed and
established practice”].)
Citing Elkouri and Elkouri, supra, the unions also maintain that past practices
(1) provide a basis for rules governing matters included in the written contract; (2) indicate the
proper interpretation of contract language; and (3) support allegations that “clear language” in
a contract has been amended by the parties’ mutual agreement. (Id. at p. 12-1.) As explained
in Steelworkers v. Warrior & Gulf Navigation Co. (1960) 363 U.S. 574, 582: “The labor
arbitrator’s source of law is not confined to the express provisions of the contract, as the
industrial common law—the practices of the industry and the shop—is equally a part of the
collective bargaining agreement although not expressed in it.”10 (See also City & County of
San Francisco, supra, PERB Decision No. 2041-M, adopting administrative law judge’s
proposed decision at p. 29 [grievance arbitration is a form of “continuous bargaining”].) The
free parking in the Burdick opinion illustrates an example where an arbitrator relied on a past
practice, resulting in an amendment of the MOU to expressly recognize the benefit.
Under section 8A.104(q) only if a side letter or past practice is memorialized in a
document approved by the MTA director or governing board can it be recognized as binding
and precedential. This rule is set forth in the second sentence. Unlike past practices, side
letters are directly enforceable. Thus any attempt to rescind them, assuming the City’s
________________________
10 Indeed the Elkouris note that the most widely accepted use of past practices arises out
of the need to interpret ambiguous and unclear contract language and that its rationale is self-
evident: “the parties’ intent is most often manifested in their actions.” (Elkouri and Elkouri,
supra, at p. 12-20 [use is “so common that no citation of arbitral authority is necessary”].)
They also state that even a zipper clause does not negate practices invoked for this purpose.
(Id. at p. 12-18.)

29
signatories were authorized agents, would be unlawful. (Palomar Community College District,
supra, PERB Decision No. 2213.) As a matter of labor relations protocol, an employer may
require that side letters be executed by only certain representatives, but the second sentence has
no language limiting its effect to prospectively adopted side letters. On the other hand, while
past practices achieve enforceability through adequate proof either in a grievance arbitration or
in a PERB unfair practice proceeding, they are equally binding on the City under the principles
cited above. (Omnitrans, supra, PERB Decision No. 2030-M.) They are also an important
tool for the union in enforcing the terms of the existing agreements through grievance
arbitration. Proposition G’s voidance of all previous unexpired side letters and past practices
not formally adopted repudiates terms and conditions of employment and deprives the unions
of their right to shape the meaning of ambiguous terms in their agreements through the
grievance procedure.
The third sentence of section 8A.104(q) states in full: “No MOU or arbitration award
approved or issued after the November 2010 general election shall provide or require that work
rules or past practices remain unchanged during the life of the MOU, unless the specific work
rules or past practices are explicitly set forth in the MOU.” This sentence, as the unions
correctly assert, refers to past practice clauses. These clauses are the union’s antidote to the
employer’s zipper clause: they require recognition of practices existing at the time of the
agreement even though not expressly included within the MOU. (See Elkouri & Elkouri,
supra, at p. 12-19.) Such clauses are within the scope of representation. (Healdsburg Union
High School District and Healdsburg Union School District/San Mateo City School District
(1984) PERB Decision No. 375, p. 81.) The third sentence imposes on the unions an
obligation to successfully obtain a listing of every possible past practice in the past practices
clause or forfeit the right to challenge any subsequent repudiation of those practices. While it

30
is permissible for the City to propose that past practices clauses operate within this limitation
of specific inclusion in the MOU, it cannot unilaterally impose that requirement since that
abridges the union’s right to represent. (Sec. 3503; Omnitrans, supra, PERB Decision
No. 2030-M; see also South Bay Union High School District (1991) PERB Decision No. 791.)
The language also denies the union its ability to seek enforcement of a past practice through
grievance arbitration or PERB. A local rule cannot unilaterally remove a subject from the
scope of representation. (Huntington Beach Police Officers’ Assn. v. City of Huntington Beach,
supra, 58 Cal.App.3d 492, 499-503.)
The fourth sentence of section 8A.104(q) provides for the forced expiration of all side
letters at the expiration of the MOU (whether existing or ones to be adopted). The unions
argue that this provision conflicts with the MTA’s duty to maintain the status quo until good
faith negotiations have been completed. They are correct. In Palomar Community College
District, supra, PERB Decision No. 2213, PERB held that side letters bind parties to the
practices contained therein and do not expire automatically at the expiration of the parties’
MOU. Under this rule, Proposition G’s directive is tantamount to a unilateral repudiation of all
side letters not explicitly limited in time to the term of the parties’ contemporaneous MOU,
thereby frustrating the unions’ right to represent employees. (See San Joaquin County
Employees Assn. v. City of Stockton (1984) 161 Cal.App.3d 813, 819.)
The City’s position is that section 8A.104(q) has only prospective effect and is simply a
guide for more transparent negotiations. For the reasons explained above, this argument is
rejected.
Like the heightened evidentiary standard, the provisions invalidating side letters and
past practices unreasonably abridge the unions’ right to represent their unit members and
frustrate the parties’ duty to meet and confer in good faith under the MMBA.

31
Local Legislation Based on the Public’s Interest in Efficient Transit
The City relies on the legislative findings of Proposition G to rebut the unions’ claims
that the Charter amendments impose an undue burden on their prospects for prevailing in
interest arbitration and unilaterally eliminate side letters and past practices, contending that the
voters may legitimately legislate to further the public’s interest in efficient transit.
In a series of published articles, noted labor scholar Clyde Summers offered an original
analysis of the unique aspects of public sector collective bargaining.11 He claimed that the
critical difference between the private and public sectors is not the nature of the industry or the
work performed, but the character of the employer. Economic decisions in the labor arena are
in fact political decisions around budget. More so than the elected officials who supervise the
negotiations, the voters to whom those officials are responsible constitute the real party
opposing the interests of labor. Voters are purchasers and users of public services, and because
they want to maximize services and minimize costs their economic interests are inherently in
conflict with public employees. (Summers, Public Employee Bargaining: A Political
Perspective, supra, 83 Yale L.J. at p. 1159.) Thus collective bargaining is a special procedure
by which unions are able to effectively influence elected officials; one that is an appropriate
modification of the political process, necessary to neutralize the disadvantage unions have
because they are outnumbered in the budgetary process and their interests are contrary to every
other interest group vying for a greater allocation of public funds. (Id. at pp. 1162-1165,
1168.) Summers was primarily concerned with how this conflict of interests can be better
mediated through greater accountability on the part of elected officials. In California,
________________________
11 Summers, Public Employee Bargaining: A Political Perspective (1974) 83 Yale L.J.
1156; Summers, Public Sector Bargaining: Problems of Governmental Decisionmaking (1975)
44 U. Cin. L.Rev. 669; Summers, Bargaining in the Government’s Business: Principles and
Politics (1987) 18 U. Toledo L.Rev. 265; Summers, Public Sector Bargaining, a Different
Animal (2002-2003) U. Pa. J. Lab. & Emp. L. 441.

32
however, voters are able to directly assert their interests through the initiative/referendum
process and legislate on both negotiable subjects and the process by which negotiations take
place. On these occasions, negotiations with labor cease to be a “closed two-sided” process.
(Summers, Public Employee Bargaining: A Political Perspective, supra, 83 Yale L.J. at pp.
1164-1165; Voters for Responsible Retirement v. Trinity County Board of Supervisors (1994)
8 Cal.4th 765, 782-783.) The Fix Muni Coalition and Transit First proponents with their finely
honed opposition to the transit worker unions in this case have successfully leveraged their
interests through the political process based on the popular sentiment identified by Summers.12
It is true that the “interest of the public” has gained currency as a statutory factor in
public sector interest arbitrations. However this case illustrates the need to critically assess
whether this factor is properly implemented in a manner consistent with the statutory premise
of good faith negotiations. Anti-labor motivated legislation by the electorate has no legal
consequences so long as the bargaining process remains neutral. Proposition G’s substitution
of interest arbitration for the salary survey process for determining transit operators’ wages,
despite the intent suppress the wages of transit operators, is an example. (City & County of
San Francisco, supra, PERB Decision No. 2041-M.) But for the reasons explained above,
sections 8A.104(o) and 8A.104(q) are discriminatory on their face and impose undue burdens
on the unions. Proposition G’s legislative findings adopted by the citizens confirm the intent
________________________
12 The unanimity of public opposition to labor based on cost of services may depend on
the jurisdiction or be subject to particular anomalies, but its potentiality is well confirmed
historically over the past several decades. (Kapoor, Pubic Sector Labor Relations: Why it
Should Matter to the Public and to Academia (2003) 5 U. Pa. J. Lab. & Emp. 401, 404-405.)
Summers accepts that unions have the ability to form coalitions in support of their economic
interests and have a right to be engaged in the political process, but maintains they are
nevertheless greatly disadvantaged vis-à-vis voters who have a common interest in either
wanting more services or opposing more taxes. (Summers, Public Employee Bargaining:
A Political Perspective, supra, 83 Yale L.J. at pp. 1159-1160, 1167.) Regardless, under the
analysis applied here, pro-union legislation would be scrutinized in the same fashion.

33
to affect the outcome of interest arbitrations in favor of the City and to deny the unions the
benefit of rights accrued over time through side letters and past practices because they are
viewed as costly and inefficient. Hence Proposition G imposes not merely the various
competing interests of the public in general, but the interest of a particular advocacy group
directly opposed to the negotiable interests of the unions, which interests the statute is intended
to protect. Its success at the ballot box invites activation of similar organized interests opposed
to labor in regard to other City services, and without protection leads to the erosion of the
unions’ standing in the process of collective bargaining generally. The unions have overcome
the presumption of reasonableness as to Proposition G.
Rules for collective bargaining must be faithful to the premise of equal leverage in the
process to fulfill the purposes of the statute; otherwise they amount to “official compulsion” of
a particular outcome. (H. K. Porter, Co., Inc. v. NLRB, supra, 397 U.S. 99, 108.) When local
legislation crosses that line, it not only runs afoul of the statute as an unreasonable regulation
but must also give way under the principles of preemption. Here the traditional judicial
deference afforded local legislation must be set aside because the amendment conflicts with the
fundamental purposes of the MMBA. (City & County of San Francisco, supra, PERB
Decision No. 2041-M, adopting proposed decision of the administrative law judge at p. 22;
International Brotherhood of Electrical Workers v. City of Gridley, supra, 34 Cal.3d 191, 202;
Voters for Responsible Retirement v. Trinity County Board of Supervisors, supra, 8 Cal.4th
765.) Proposition G exceeded the City’s lawful rulemaking authority under the MMBA by
adopting an unreasonable regulation, causing the City to violate PERB Regulation 32603(f).

34
REMEDY
Pursuant to section 3509(a), the PERB under section 3541.3(i) is empowered to:
. . . take any action and make any determinations in respect of
these charges or alleged violations as the board deems necessary
to effectuate the policies of this chapter.
The City has been found to have violated PERB Regulation 32603(f) by adopting an
unreasonable regulation in the form of sections 8A.104(o) and 8A.8104(q) of the City Charter.
Therefore it is appropriate to order that the City cease and desist from adopting and enforcing
these provisions. (Los Angeles County Federation of Labor v. County of Los Angeles (1984)
160 Cal.App.3d 905.) It is also appropriate to order that the City rescind these provisions of
the City Charter. (Tehama County Superior Court, supra, PERB Decision No. 1957-C.)
As a result of the above-described violation, the City has also interfered with the
right of employees to participate in an employee organization of their own choosing, in
violation of section 3506 and PERB Regulation 32603(a), and has denied the charging parties
their right to represent employees in their employment relations with a public agency, in
violation of section 3503 and PERB Regulation 32603(b). The appropriate remedy is to cease
and desist from such unlawful conduct. (Rio Hondo Community College District (1983) PERB
Decision No. 292.)
Finally, it is the ordinary remedy in PERB cases that the party found to have committed
an unfair practice is ordered to post a notice incorporating the terms of the order. Such an
order is granted to provide employees with a notice, signed by an authorized agent that the
offending party has acted unlawfully, is being required to cease and desist from its unlawful
activity, and will comply with the order. Thus, it is appropriate to order the City to post a
notice incorporating the terms of the order herein at its buildings, offices, and other facilities
where notices to bargaining unit employees are customarily posted. Posting of such notice

35
effectuates the purposes of the MMBA that employees are informed of the resolution of this
matter and the City’s readiness to comply with the ordered remedy.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it has been found that the City and County of San Francisco (City) violated the Meyers-
Milias-Brown Act (Act). The City adopted unreasonable regulations as a result of the passage of
Proposition G and the provisions added to the City Charter at sections 8A.104(o) and 8A.104(q),
in violation of Public Employment Relations Board (PERB or Board) Regulation 32603(f)
(Cal. Code of Regs., tit. 8, sec. 31001 et seq.). By this conduct, the City also interfered with the
right of City employees to participate in the activities of an employee organization of their own
choosing, in violation of Government Code section 3506 and PERB Regulation 32603(a), and
denied the Charging Parties their right to represent employees in their employment relations with
a public agency, in violation of Government Code section 3503 and PERB Regulation 32603(b).
Pursuant to section 3509, subdivision (a) of the Government Code, it hereby is
ORDERED that the City, its governing board and its representatives shall:
A. CEASE AND DESIST FROM:
1. Adopting and enforcing unreasonable regulations in the form of City
Charter sections 8A.104(o) and 8A.104(q), as adopted through Proposition G.
2. Interfering with bargaining unit members’ right to participate in the
activities of an employee organization of their own choosing.
3. Denying Charging Parties their right to represent employees in their
employment relations with the City.

36
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Rescind sections 8A.104(o) and 8A.104(q) of the City Charter, as
amended by Proposition G.
2. Within 10 workdays of the service of a final decision in this matter, post
at all work locations in the City, where notices to employees customarily are posted, copies of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of the City, indicating that the City will comply with the terms of this Order. Such posting
shall be maintained for a period of 30 consecutive workdays. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
3. Within thirty (30) workdays of service of a final decision in this matter,
notify the General Counsel of PERB, or his or her designee, in writing of the steps taken to
comply with the terms of this Order. Continue to report in writing to the General Counsel, or
his or her designee, periodically thereafter as directed. All reports regarding compliance with
this Order shall be served concurrently on the Charging Parties.
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

37
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 of Regs., tit. 8, sec. 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 of Regs., tit. 8, secs. 32135(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 8, section 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 of Regs., tit. 8, sec. 32135(b), (c) and (d);
see also Cal. Code of Regs., tit. 8, secs. 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 of Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY (30)
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER MATERIAL.
After a hearing in Unfair Practice Case No. SF-CE-827-M, Transport Workers Union of
America Local 250-A, Transport Workers Union Local 200, International Brotherhood of
Electrical Workers, Local 6, Service Employees International Union Local 102, and
International Association of Machinists & Aerospace Workers, AFL-CIO, Local 1414 v.
City & County of San Francisco, in which the parties had the right to participate, it has been
found that the City and County and San Francisco (City) violated the Meyers-Milias-Brown
Act (Act), Government Code section 3507, and PERB Regulation 32603(f) (Cal. Code of
Regs., tit. 8, sec. 31001, et seq.), when it adopted an unreasonable regulation in the form of
City Charter sections 8A.104(o) and 8A.104(q), as contained in Proposition G. This conduct
also violated Government Code section 3506 and PERB Regulation 32603(a) by interfering
with the right of bargaining unit members to participate in an employee organization of their
own choosing, and Government Code section 3503 and PERB Regulation 32603(b) by denying
the Charging Parties its right to represent employees in their employment relations with the
City.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
1. Adopting and enforcing unreasonable regulations in the form of City
Charter sections 8A.104(o) and 8A.104(q), as adopted through Proposition G.
2. Interfering with bargaining unit members’ right to participate in the
activities of an employee organization of their own choosing.
3. Denying Charging Parties their right to represent employees in their
employment relations with the City.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Rescind sections 8A.104(o) and 8A.104(q) of the City Charter, as
amended by Proposition G.
Dated: _____________________ CITY AND COUNTY OF SAN FRANCISCO
By: _________________________________
Authorized Agent

City and County of San Francisco * * * VACATED IN PART by City and County of San Francisco (2019) PERB Decision No. 2540a-M (PERB 2540M)

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