City of Arcadia (PERB 2648M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ARCADIA POLICE CIVILIAN EMPLOYEES
ASSOCIATION, ET AL.,
Charging Party,
v.
CITY OF ARCADIA,
Respondent.
Case Nos. LA-CE-847-M
LA-CE-913-M
PERB Decision No. 2648-M
June 12, 2019
Appearances: Phillips & Rickards by Wendell Phillips and Mary Dee Rickards, Attorneys, for
Arcadia Police Civilian Employees Association, et al.; Liebert Cassidy Whitmore by Mark
Meyerhoff and Danny Yoo, Attorneys, for City of Arcadia.
Before Banks, Krantz, and Paulson, Board Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the Arcadia Police Civilian Employees Association
(Association) to a proposed decision of an administrative law judge (ALJ). The proposed
decision dismissed two consolidated complaints against the City of Arcadia (City). The
complaints alleged that the City violated the Meyers-Milias-Brown Act (MMBA or Act)1 and
PERB Regulations2 by interfering with protected rights, dominating the Association, and
failing to meet and confer in good faith. In its exceptions, the Association challenges most of
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references 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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the ALJ’s central factual and legal conclusions. The City filed no exceptions and urges us to
adopt the proposed decision.
Broadly speaking, the complaints address two issues. First, they allege that a variety of
employer conduct was wrongfully directed at the Association’s internal affairs and thus
interfered with employee and Association rights. Second, the complaints allege the City
violated its duty to meet and confer in good faith with the Association. We have reviewed the
record and relevant legal authority. Based on that review, we dismiss many of the allegations
against the City. However, we reverse the proposed decision as to four allegations.
Specifically, we find that the City violated the MMBA and PERB Regulations when it offered
an incentive for the Association’s Vice President to oust the Association’s President, invited a
former Association leader to participate in a bargaining meeting without notifying the
Association’s official representatives, unilaterally imposed ground rules in advance of
bargaining, and made an “exploding” offer without adequate justification.3
FINDINGS OF FACT
The Association formed in 2010 when its members severed from the City’s general
bargaining unit. Judith Cook (Cook), a records technician, and Pamela McGinnis (McGinnis),
a dispatcher, were the president and vice president at its inception and continued in those roles
until a recall vote on November 14, 2013. The Association’s attorney and chief negotiator
throughout this time was Wendell Phillips (Phillips). In 2011, Robert Guthrie (Guthrie)
became Chief of Police. Guthrie, Cook, and McGinnis had worked together for many years
before Guthrie became Chief. During the period relevant to this dispute, the City and the
3 An exploding offer is one that expires on a given date. (Abramson, Fashioning an
Effective Negotiation Style: Choosing Between Good Practices, Tactics, and Tricks (2018) 23
Harv. Negot. L. Rev. 319, 333.)
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Association were parties to a memorandum of understanding (MOU) set to expire on June 30,
2014.
In September 2012, the Department considered hiring part-time dispatchers to provide
scheduling relief for full-time dispatchers. The Department wanted new hires in place by the
following month in order to staff for November and December vacations. Chris Campbell
(Campbell), who was a dispatch supervisor and a member of the Association’s Board of
Directors (Association Board), met with other supervisors to discuss a recruitment process. In
order to attract more candidates, the Department wanted to remove an existing rule requiring
part-time applicants to be working elsewhere as a dispatcher.
On September 20, Campbell met with Cook and McGinnis about the part-time
dispatcher issue. Cook said the Department was trying to replace full-time dispatchers with
part-timers. Campbell felt attacked and like Cook “flew off the handle.” After Cook left the
meeting, Campbell asked McGinnis, “why [am] I on the [Association] Board?” McGinnis
replied, “[b]ecause I need you.” Campbell took this to mean McGinnis wanted Campbell to
stay on the Association Board because Cook was difficult to work with. That evening,
Campbell e-mailed two Department managers about her meeting with Cook and McGinnis and
said she felt like she was “fighting an uphill battle.”
On September 22, Phillips sent City Human Resources Administrator Mike Casalou
(Casalou) an e-mail asking for information about part-time dispatchers and noting, “Like most
unions, APCEA has concerns about the use, and potential misuse of part-time employees.”
Casalou told Guthrie about the e-mail. Guthrie and Phillips spoke about the Association’s
concerns and agreed to require part-time applicants to have worked as a dispatcher in the past
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five years. Guthrie stated he had no intention of using part-time dispatchers to replace full-
time dispatchers. Guthrie sent Association members a memorandum to that effect.
In October 2012, two lieutenants memorialized a series of alleged unprofessional and
discourteous actions by Cook toward other employees in the Records Division. The
lieutenants alleged acts of “harassment” and “bullying,” including profanity, rudeness,
ignoring people, and slamming furniture. Guthrie testified that he heard about these issues,
was concerned that Department personnel did not feel comfortable coming to him for help
regarding such serious matters, and felt that they were related to issues he had with Association
leadership.
Campbell resigned from the Association Board on November 7, 2012. In an e-mail to
the Association Board and Guthrie, Campbell said she was resigning, “[d]ue to conflicts with
my role as the dispatch supervisor and my position as APCEA treasurer,” and further explained
that she felt “caught in the middle.” The Association’s allegations against the City commence
the day after Campbell resigned, as described below.
I. 	Facts Pertaining to the Association’s Interference Allegations
A. 	Guthrie’s Statements on November 8, 2012
On November 8, 2012, Guthrie summoned McGinnis to his office while she was on
duty in dispatch. The two of them were the only ones in the room, and their versions diverge
regarding what happened next. Guthrie’s testimony, which we credit, is as follows.
Guthrie started the meeting by saying he was going to stop the monthly labor-
management meetings with Association leaders, and he referred to Campbell’s resignation
letter from the previous day. McGinnis said Campbell resigning from the Association Board
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was a shock to her, and she started to get teary-eyed. Guthrie gave her a box of tissues. She
told him that Campbell had been her rock and she felt alone on the Association Board.
Guthrie told McGinnis that his reasons for cancelling the meetings had to do with
Cook, but that he could not explain how. When McGinnis asked if it had to do with recent
issues in Records, where Cook worked, Guthrie told her that there was a perception that by
having the meetings, he was supporting conduct that he does not support. Guthrie testified that
McGinnis “was insistent that she didn’t want the meetings to stop.” Then he testified as
follows:
And as a means of resolving that repeated question or concern of
hers, something would have come up, certainly, about, hey, I’m
not saying it’s forever. I’m just telling you, for right now, we've
got some significant issues regarding workplace perceptions of
people who think they’re victimized and what have you, and I
can’t do it until things change in philosophy, meaning that I could
do it with Judy if the whole philosophy and the outlook of
everybody, no problem, if that were to get there, or leadership,
meaning that that problem would resolve itself and people
wouldn’t think that somebody is utilizing their position of
perceived power within the organization to harass, bother, or
bully others.
Guthrie also told McGinnis he had come to doubt whether the meetings were even
beneficial, because sometimes Cook and McGinnis did not share some labor relations issues
with him and he would later learn about a problem from Human Resources or Phillips. He said
that was not the way he had hoped the meetings would work. Guthrie told McGinnis he was
willing to resume regular labor-management meetings if Cook was no longer president.
At some point during their conversation, McGinnis told him that she thought Campbell
resigned her Association position because of Cook and Phillips. McGinnis added that she
needed to get Cook to resign because the Association could not keep having other people
resign. As McGinnis talked about approaching Cook, she appeared nervous and upset. She
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expressed that she felt Phillips would take Cook’s side and she was worried about being up
against Phillips. Guthrie responded by saying something along the lines of “there’s enough
turmoil going on here, just be careful of what you’re doing . . . .” He asked if the Association
had “insurance that protects the Board against its membership” in case “you do something
wrong or if they think you’re not representing them . . . .” He told her when he was president
of his association, his board was sued twice, and he remembered they had a kind of insurance
that covered the board. He told her it was a good practice to have that kind of insurance and if
they did not, she might want to think twice about doing anything. McGinnis responded that if
Cook would not resign, they would vote her out in December.
Toward the end of their meeting, McGinnis asked Guthrie to keep their meeting in
confidence between the two of them because she did not want Cook or Phillips to know what
they had discussed. He responded that he could only do that for so long because Cook is the
president of the Association and would need to know that Guthrie was canceling labor-
management meetings. McGinnis said Cook would be out for a week and then she had
something going on after that, as a result she asked Guthrie for three weeks. Guthrie told her
that when he notified Cook about canceling the labor-management meetings, he was going to
let Cook know that he had talked to McGinnis about it, since Cook had a right to know as
Association president, though he would not necessarily tell Cook the details they had
discussed. McGinnis said that was okay. Guthrie told McGinnis that since she said she needed
three weeks, if he did not hear from anyone in three weeks, he would call Cook and have a
meeting with her. Then he told her if she decided not to talk to Cook that was fine, but in three
weeks he would call Cook regardless. McGinnis said okay. Guthrie testified that he never told
McGinnis she should fear him or that he wanted Cook off the Association Board.
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McGinnis contradicted Guthrie’s testimony in a number of respects.4 However, the
ALJ concluded that both observational and non-observational factors support crediting
Guthrie’s testimony over McGinnis’ testimony. We have reviewed the record, and we
similarly find Guthrie’s testimony to be the more complete and credible account of what
occurred at the November 8, 2013 meeting. Guthrie typically answered questions in a
straightforward manner and testified about the different parts of the meeting in a coherent and
consistent manner. Where he was uncertain, he said so, and he qualified his recollection as
needed without prompting. Guthrie’s testimony was consistent with statements he made to
City Manager Dominic Lazzaretto (Lazzaretto) on December 5, 2013 about the November 8
meeting.
McGinnis’ testimony, in contrast, was often elicited by leading questions on direct
examination, reducing its credibility. Indeed, the ALJ repeatedly cautioned counsel for the
Association about leading McGinnis. Several times, McGinnis agreed with leading statements
by Association counsel, only to have to backtrack later. McGinnis also offered inconsistent, or
at least exaggerated, testimony about Guthrie’s loudness during the November 8, 2012
meeting. At one point in her testimony, McGinnis described part of the meeting as “45
minutes of him yelling and screaming at me. . .” But when pressed on cross examination to
describe his loudness on a scale of one to ten, she backtracked, describing silent expressions of
anger: “It wasn’t so much the loudness. It was his facial expressions, the, like, the gritting of
4 For example, McGinnis testified that Guthrie was “livid” and “ripped into [her].”
McGinnis also testified that Guthrie told her that Cook needed to go, and should be replaced by
Chris Hoefflin. McGinnis said that Guthrie made an analogy about lions, said his captains and
McGinnis should fear him, asked McGinnis if she had insurance, and said, “I hope you have
insurance.” At that point, according to McGinnis, she did not know what to think and was very
scared. McGinnis further asserted that Guthrie closed the meeting by saying he was giving her
three weeks and if she didn’t remove Cook in that timeframe, he would have it done through
the members.”
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the teeth, and the leaning like this forward, coming towards me.” We infer McGinnis likely
exaggerated when she first stated that Guthrie was yelling and screaming for 45 minutes.
McGinnis was also unable to recall certain parts of the November 8 meeting.
Finally, we have reason to doubt McGinnis’s testimony regarding Guthrie’s
November 8, 2012 comments on insurance—which McGinnis alleged to be coercive.
McGinnis testified that Guthrie asked her if she had insurance. She explained that Guthrie’s
question followed an analogy about lions and a statement that she should fear him. She denied
that he mentioned insurance in the context of whether the Association had insurance and
emphasized that “the insurance comment was directed solely at me” and that she took it to
refer to personal insurance right before testifying that Guthrie’s comment made her “very
scared.” But the minutes of the February 15, 2013 Association membership meeting reflect
that “APCEA received verbal threats regarding . . . [l]ack of Association insurance, Board
being sued by members, and Union Busting to remove President from office.” McGinnis said
that at that meeting they “discussed with the members what had been occurring with me and
the Chief and the things that he had said and done, and we asked our attorney to explain what
some of the remedies could be.” The grouping of these topics in the minutes, McGinnis’
description of meeting, and the lack of any evidence that someone other than McGinnis raised
these topics, all suggest the minutes reflect McGinnis’ statements about the November 8
meeting. Thus, it appears McGinnis characterized Guthrie’s comments about insurance as
being about Association insurance, not personal insurance, at the February 15, 2013 meeting,
but was adamant in her testimony that his comments referred to her personally. This shift
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suggests that one of her statements was untrue or that her recollection changed over time. In
any event, it casts further doubt on her testimony.5
B. 	Guthrie’s Statements on February 21, 2013
The Association held a general membership meeting on February 15, 2013. At some
point in the meeting, members discussed the part-time dispatcher issue, and one of the
members asked if the Association had slowed down the hiring process. Phillips responded,
saying something to the effect that if Guthrie claimed the Association had slowed down the
process, he was not telling the truth. Multiple attendees later told Guthrie that Phillips had
called him a liar.
On February 21, 2013, Guthrie addressed a group of dispatchers. He disputed that he
was a liar and shared a short PowerPoint-style presentation to support his position. Cook and
McGinnis were not present at the meeting in question, while Kristi Ortiz (Ortiz), Campbell,
and Association member Kristin Gavrity, though present, did not have strong recollections.
Deborah Cuddihy (Cuddihy) testified as follows. The meeting took place in the
Emergency Operation Center, a classroom style room with desks, chairs, a podium, and a
projector. After a discussion of overtime issues, Campbell said she wanted to clear the air
about Phillips calling Guthrie a liar. Campbell told the group she left the Association Board
because she felt betrayed by Cook and McGinnis for going behind her back on the part-time
dispatcher issue. At that point, Guthrie started talking about his interactions with Phillips.
Guthrie said he believed Phillips had lied to them. Guthrie used the projector to show an e-
5 McGinnis also testified inconsistently when asked about the December 5, 2013
meeting with Lazzaretto. When asked if, on December 5, Phillips had accurately recounted the
November 8, 2012 meeting, she responded, “I believe it was very accurate.” Later, she
admitted she did not recall what Phillips said on December 5 regarding the November 8
meeting.
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mail between him and Phillips. Then, he projected a timeline showing alleged delays in the
hiring process. Guthrie also said, “that he was on the side of the workers,” that the Association
Board and Phillips were hindering the process, and that Phillips was threatening toward him.
Guthrie’s recollection differed somewhat from Cuddihy’s. Guthrie testified that he
made a “little three-slide PowerPoint or something like that.” The slides included an e-mail
Phillips had sent to Casalou and a timeline he quickly repurposed from one he had used to
prepare for a Workers’ Compensation deposition. He took the presentation to the meeting with
the dispatchers. Guthrie testified that he told them as follows:
I just need you to know that your Chief hasn’t lied to you, that I’ll
make decisions, I’ll do things at times that might be unpopular,
and maybe I’m, in your mind, I’m making the wrong decision.
And that’s all part of the business that we have to conduct, but I
have not lied to you, and I just want you to know that. And I
want to show you a couple things that supports me not lying to
you . . . .
Though there are some differences between Guthrie’s and Cuddihy’s recollections of
the meeting, we find it unnecessary to resolve them, because, as discussed post, there is
inadequate evidence to support an interference finding under either set of facts.
C. 	Alleged Interference Subsequent to February 21, 2013
On May 7, 2013, the Association filed unfair practice charge number LA-CE-847-M
against the City (first charge). The Office of General Counsel issued a complaint (first
complaint) on October 31, 2013, alleging that Guthrie interfered with protected rights through
his comments about the Association’s leadership on November 8, 2012, and his comments
about the Association’s chief negotiator on February 21, 2013.
At a June 17, 2013 Association membership meeting, Association member Ortiz
proposed removing Cook and Association Treasurer Cuddihy from their Association positions.
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Later in the meeting, Ortiz deleted Cuddihy from her proposal. Although Ortiz asked that the
Association hold a secret ballot vote regarding her proposal on June 24, Association leadership
declined this request and directed Ortiz to follow the procedure in the bylaws if she planned to
proceed.
On June 26, 2013, Phillips sent a letter to Ortiz warning that the Department could
discipline her for sending union-related e-mails over the City’s e-mail system. Ortiz felt
threatened by Phillips’ letter. Ortiz testified that the letter was one of a number of problematic
things that Phillips had done, and that she did not believed Phillips should continue as the
Association’s attorney.
In mid-July 2013, Cook went out on leave and did not return to work.
On November 14, 2013, a group of Association members met and voted to remove
Cook, McGinnis, and Cuddihy from their Association positions and replace them with Ortiz,
Mike Vercillo (Vercillo), and Caroline Ngai (Ngai). Nine of the Association’s twenty
members attended. The group selected Vercillo to act as scribe and take minutes. Vercillo
confirmed proxies and attached them to the minutes. Taking each person one at a time, Ortiz
read charges against Cuddihy, McGinnis, and Cook. In each instance, all votes of those nine
present and all five proxies were cast to remove them. Then members nominated Ortiz,
Vercillo, and Ngai to serve as President, Vice President, and Treasurer respectively, and they
assumed office by acclamation because there were no rival nominees.
On November 18, 2013, Ortiz sent a memorandum to Director of Administrative
Services, Hue Quach (Quach). The body of the memo read:
Mr. Quach,
This is to inform you that on November 14, 2013, the General
Membership of the APCEA has voted to remove Board members
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of [sic] Judy Cook as President, Pam Mcginnis [sic] as Secretary
and Deborah Cuddihy as Treasurer. At the same meeting, the
General Membership of the APCEA has elected a new Board,
which consists of Kristi Ortiz as President, Mike Vercillo as
Secretary and Caroline Ngai as Treasurer.
Please find the minutes to the November 14, 2013 meeting
attached.
Ortiz included a copy of the minutes, the attendance sheet, written charges against each of the
Association Board members, and proxy forms.
Quach sought legal advice from the City’s outside labor relations counsel, Steve
Filarsky (Filarsky). On November 20, 2013 at 3:06 p.m., Quach sent Ortiz a letter thanking
her for contacting him and noting as follows: “Based on the information that was provided to
Human Resources, we want to congratulate you, Mike, and Caroline in becoming the newly
elected board members for the APCEA.”
On November 20 at 3:17 p.m., Cook e-mailed Lazzaretto a copy of a letter from Cook
to Sylvia Duran at the Arcadia City Federal Credit Union. The letter disputed the removal of
Cook, McGinnis, and Cuddihy, and stated that “the so-called ‘Minutes’ of a purported
membership meeting on November 14, 2013, are fraudulent in that no authorized membership
meeting took place that day.” Lazzaretto responded to Cook on November 21 that he
understood the membership voted to remove the previous Association Board and that “the City
is now meeting and conferring with that newly recognized Association Board.” The next
month, the City and the new Association leaders reached a new MOU, completing negotiations
that had been ongoing for several months, as described below.
D. 	The Parties’ Negotiations for a New MOU
The parties had an MOU set to expire on June 30, 2014. Based on past practice, the
parties would have expected to commence their next bargaining cycle in spring 2014. In a
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departure from that practice, Lazzaretto’s secretary, Connie Schacatano (Schacatano), e-mailed
Cook and leaders of other unions representing City employees, inviting them to a meeting on
August 22, 2013, in order to discuss the City’s desire to engage in early and compressed
negotiations for a possible successor MOU with each union. Schacatano’s e-mail was the first
time the City proposed to start negotiations early. At the time of Schacatano’s e-mail, Cook,
McGinnis, and Cuddihy were all out on leave, and the Association had not yet formed its team
for negotiations. Cook responded that the Association Board members and the Association’s
attorney were unavailable that day, and she requested that any handouts or notes from the
meeting be forwarded to her. Cook never heard back from Schacatano.
Schacatano contacted Campbell and told her she invited the Association, but did not
receive a response, that she believed somebody from the Association should be at the meeting,
and that she would ask Lazzaretto if she could invite Campbell. Campbell held no leadership
position with the Association, having resigned from the Association Board in November 2012.
Lazzaretto approved inviting someone from the Association to attend. Campbell did not
contact the Association before the meeting, Cook was unaware Campbell had been invited, and
no Association representative authorized Campbell to attend on the Association’s behalf.
Campbell attended the August 22, 2013 meeting. Lazzaretto described the point of the
meeting as being for “all the unions” to know his philosophy for negotiations, because they
“were headed into labor negotiations.” He testified that the City Council was looking for a
“completely different kind of model for labor negotiations.” At the meeting, he explained his
philosophy for negotiations. He emphasized that he did not view good negotiations as having a
winner, that transparency was essential, that he believed the parties shared common goals, that
attorneys were not necessary, and that if the unions did not bring an attorney neither would the
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City. He also explained the City Council’s philosophy and the mayor’s goals for negotiations.
He emphasized the Council was not satisfied with the previous approach to negotiations, which
they believed was too time consuming and antagonistic. He explained that the City “decided to
accelerate the negotiations process,” allegedly modeled on “collaborative negotiations” in the
entertainment industry. In this approach, he explained,
[Y]ou do it long before [the contracts] expire and you provide a
shorter window for negotiations. You take all of the fluff off of
payroll and you just -- you can break it down to the issues that
really matter.
You give people an opportunity to talk about what really matters
to them. If you can’t do it during that two-month window, you
break it off. You cool off. And then you do traditional
negotiations.
Pursuant to this new approach, the City announced that it was setting an “Intensive 2-Month
Window” as October 1, 2013 to the beginning of December.
At the August 22, 2013 meeting, Lazzaretto also said that he wanted to “make sure
we’re all working from the same information.” He discussed the City’s financial situation and
what past contracts had looked like in terms of raises and pension changes, as well as how
compensation compared to employees in other cities. His presentation included ten slides
regarding the principle that “Budgeting is Not Easy,” and he presented detailed information
about volatility in different revenue streams. He also presented detailed information about
anticipated future obligations and outlined the seven-year cost history of each of the City’s
labor contracts. He shared market comparison data for each bargaining unit against eight
nearby cities.
Lazzaretto’s August 22 presentation ended by discussing next steps. He advised each
union to provide an initial proposal by September 8 or await a proposal from the City. That
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night, Quach e-mailed Campbell and other attendees. His e-mail read, in part, “As requested,
attached is the presentation that was provided earlier today in our meeting. Please feel free to
share this with any and all members of your group.” Campbell did not communicate with
Cook about the meeting before September 2. She did not brief the Association Board about the
meeting and did not meet with the Association and tell them what had been discussed.
On September 2, 2013, Campbell e-mailed the entire membership of the Association
about the August 22 meeting. Her e-mail read:
Hello Union Members,
The City Manager scheduled a meeting with all the Unions on
8/22/13. The APCEA board members were unable to attend the
meeting so the City Manager’s office invited me to attend. It was
an informational meeting on the upcoming negotiations. The
attached power point presentation was sent to me and I am
forwarding it to all the members. The City Manager indicated
that if any union member had questions about the the [sic]
upcoming negotiations or the information on the power point,
please feel free to contact Hue Quach or Jason Kruckeberg.
Thank you,
Chris
Association leaders were surprised and alarmed when they learned the City invited Campbell
to the meeting. She had resigned from the Association Board months earlier, and Association
leaders were suspicious of her loyalty and motives.
On September 12, 2013, Assistant City Manager Jason Kruckeberg (Kruckeberg) sent
Cook and Phillips a letter purporting to initiate contract negotiations. The letter stated the City
wanted “a negotiations process that is streamlined and focused . . . to attempt[] to reach
agreement . . . by the end of November 2013.” (Underscoring omitted.) The letter further
stated that “[t]his accelerated time frame requires mutual commitment and flexibility to meet
as often as is necessary . . . .” Kruckeberg told Cook that the Association could schedule
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bargaining dates through Doodle (an online scheduling website). Cook responded, designating
Phillips as the Association’s lead negotiator.
In mid-September, the Association formed its negotiations team after first soliciting
interest from members. On September 25, McGinnis sent an e-mail to Association members
announcing Vercillo and Linda Winstead as new members of the negotiations team, joining
Cook, McGinnis, Cuddihy, and Phillips. The team members met amongst themselves to
discuss priorities. The team wanted to achieve some specialty increases for individual groups
within the Association, including those working at the warrant desk. The team also discussed
the need for a compensation study for records clerks.
On October 2, 2013, Phillips e-mailed Lazzaretto for a copy of “any
documents/handouts and any power point presentation shown” at the August 22 meeting.
Lazzaretto responded that day with materials attached. He also explained that the market
comparisons in the materials only included “basic salary/PERS/medical costs and are not fully
comprehensive,” and he explained that the City did not intend to peg salaries to the market, but
offered the data for informational purposes. He also stated that the City’s goal was to be
collaborative and that was why the materials noted that attorneys are not necessary, but the
City understood that the Association wanted Phillips involved. Lazzaretto closed by noting
Kruckeberg would lead the City’s bargaining team.
On November 4, 2013, Kruckeberg sent an e-mail to Phillips to confirm the first
negotiations meeting with the Association for November 6. Phillips responded on November 5
and said he had calendar conflicts with that date and the second scheduled date. He closed
noting, “There is plenty of time since the current MOU does not expire until mid-2014.”
Kruckeberg responded later that day to confirm that the November 6 and November 13 dates
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were cancelled. He invited Phillips to schedule new dates using Doodle or to send the City
some dates and times the Association is available. He noted the City had met multiple times
with every other labor group and stressed, “[a]s of the end of November, we will close off this
accelerated negotiation process and we will open negotiations again in the spring once the new
Council is established.”
Filarsky wrote Phillips on November 6, 2013. He started by stating the City Manager
had met with representatives of all the City’s bargaining units on August 22 to discuss
reopening contracts early, and he described negotiations with other unions. He described the
“deal points” in the City’s agreement with the Arcadia Police Officers Association as a series
of cost-of-living adjustments over a four-year term, an additional equivalent of 1.5% in non-
pensionable benefits spread over three years, and a signing bonus.
In response to Phillips’ November 5 e-mail to Kruckeberg, Filarsky wrote, “We do not-
have plenty of time. The window of opportunity ends on Wednesday, November 27, 2013, the
last business day of November. . . . The City is fully prepared to offer APCEA members the
same deal points offered to, and accepted by APOA. However, time is of the essence. In
closed session last night the City Council reiterated that the window expires on November 27,
2013.” (Emphasis in original.)
Phillips responded on November 8, 2013. He disputed Filarsky’s contention that the
City Manager had met with all groups in August, noting that while Campbell attended the
kickoff meeting, she was not an authorized representative of the Association. He also stressed
that he did not “understand the City’s ‘need for speed’ since the MOU’s don’t expire until mid
2014” and suggested the City was using a tactic where “‘if you don’t take advantage of this
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deal now, you won’t see this offer again’ (i.e. Signing Bonuses?)” He suggested Filarsky send
him the City’s offer for consideration and offered to schedule a meeting.
Filarsky responded later that day, stating: “I understand that there have been, and
perhaps continue to be, internal issues with APCEA; I leave that to you and your Board to
work out,” and he offered to have a copy of the August 22 presentation sent over. He
explained the reason why the City had decided to make its offer expire on November 27, 2013:
Because a City Council election was upcoming, in April 2014, and two incumbent Council
members were unable to run for re-election due to term limits. Filarsky further commented as
follows: “As to whether the current offer will appear again in the spring, I simply don’t know-
-that will be up to the new City Council. I am fairly confident that the early signing bonus will
not be part of the spring offer.”
On November 14, 2013, at 4:56 p.m., Filarsky e-mailed Phillips that all other
bargaining groups had accepted the City’s offer. His email further stated: “Once again, the
City and I, are extending the opportunity to your unit to avail itself of the same 4 year deal;
time is growing very short.” Phillips responded at 5:26 p.m. the same day and summarized his
understanding of the City’s current offer. He said he understood it to be that the Association
could have the same offer as the other unions, there was no option to add specialty/incentive
increases, and Association members would receive a one-time cash bonus. He also asked to
see a spreadsheet showing each member’s bonus payout under the proposed offer. He closed
by asking if it was the case that if the union did not accept the offer by November 27, 2013,
they could bargain in the spring of 2014, but that the signing bonus would most likely be off
the table, and whether his summary was accurate.
18

Filarsky responded at 5:47 p.m. the same day, generally confirming Phillips’
impression. He said there was no option to add specialty/incentive increases other than as part
of the 1.5% non-pensionable benefits component of the offer. He explained the signing bonus
was the equivalent of half a percent salary to each employee and said he would let Phillips
calculate the dollar value. He confirmed the union could bargain in the spring if it declined the
offer, but stressed “if I had to bet, the [bonus] would not be on the table (as you know, the City
has never offered such a provision in the past and is only doing so now because of the unique
timing of these negotiations).” He closed noting, “I understand your membership is meeting
tonight; I hope they appreciate that every other unit has seen it prudent to take the deal.”
After the City recognized new Association leaders on November 20, the City relaxed
the November 27 deadline it had placed on its offer. The new Association leaders negotiated
with the City through at least December 12, 2013 and, ultimately, agreed to a new contract.
On April 28, 2014, Cook, McGinnis, and Cuddihy filed unfair practice charge number
LA-CE-913-M on their own and the Association’s behalf. The Office of General Counsel
issued a complaint (second complaint) on June 25, 2014, alleging that the City bargained in
bad faith with the Association between August and November of 2013, and engaged in the
following acts of interference: (1) The City unlawfully recognized the results of the November
14, 2013 election; (2) The City provided the new Association Board with unauthorized access
to the Association’s bank account and post office box; and (3) The City shared information
with Association members about the first charge and failed to discipline Association member
Ortiz for sending an e-mail critical of the Association’s leaders.
The ALJ held a pre-hearing conference on September 22, 2014 to address a motion to
consolidate the two complaints and a motion to bifurcate the issue of who had authority to
19

represent the Association. Phillips purported to appear on behalf of the Association and Cook,
McGinnis, and Cuddihy, while attorney Michael McGill purported to appear on behalf of the
Association and Ortiz, Vercillo, and Ngai. The ALJ granted the motion to consolidate, in part,
and agreed to entertain any motions to dismiss the Association as a party after the close of
evidence, thereby mooting the motion to bifurcate.
On October 15, 2014, the competing factions reached a partial settlement agreement
designating Cook, McGinnis, and Cuddihy as the Association’s representatives for the purpose
of this matter, while prospectively recognizing Ortiz, Vercillo, and Ngai as the Association’s
President, Secretary, and Treasurer. Thus, the hearing proceeded on February 23, 2015, with
Cook, McGinnis, and Cuddihy, represented by Phillips, as the Association’s representatives.
Ortiz, Vercillo, and Ngai became the undisputed Association representatives for all other
purposes, thereby mooting out, by agreement, any possibility that Cook, McGinnis, and
Cuddihy could overturn the disputed recall, either through these consolidated PERB cases or
otherwise.
DISCUSSION
I. 	Interference Allegations
To prove interference, a charging party need not show that an employer acted with an
unlawful motive, if it can show that the employer conduct at issue has a tendency to create at
least “slight harm” to employee rights. (San Diego Unified School District (2019) PERB
Decision No. 2634, p. 17.) Thus, to establish a prima facie case, the charging party must
demonstrate that the employer’s conduct tends to or does result in harm to employee rights.
(Ibid.) If the prima facie case is established, PERB balances the degree of harm to protected
rights against any legitimate business interest asserted by the employer. (Ibid.) Where the harm
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is slight, the Board will entertain a defense of operational necessity and then balance the
competing interests. (Ibid.) Where the harm is inherently destructive of protected rights, the
employer must show the interference was caused by circumstances beyond its control. (Ibid.)6
As noted ante, the first complaint challenges Guthrie’s comments about the
Association’s leadership on November 8, 2012 and his comments about the Association’s chief
negotiator on February 21, 2013, while the second complaint contains the following additional
interference allegations: (1) The City unlawfully recognized the results of the November 14,
2013 election and provided unlawful assistance to the new Association Board; (2) The City
provided the new Association Board with unauthorized access to the Association’s bank
account and post office box; and (3) The City shared information with Association members
about the first charge and failed to discipline Association member Ortiz for sending an e-mail
critical of the Association’s leaders. Before resolving these allegations, we first discuss the
legal standards relevant to alleged interference with internal union affairs.
A. 	Legal Standards Regarding Alleged Employer Interference in Internal Union
Affairs
MMBA section 3506.5 prohibits different types of employer conduct in five
subdivisions. The allegations against the City arise under the first four subdivisions.
Subdivision (a) concerns discrimination and interference with employees’ protected rights,
subdivision (b) concerns denying employee organizations their rights, subdivision (c) concerns
the duty to meet and confer in good faith, and subdivision (d) concerns domination or
interference with the administration of an employee organization or assistance thereto. In light
6 Although San Diego Unified School District, supra, PERB Decision No. 2634 did not
arise under the MMBA, the same interference test applies under each labor relations statute
that PERB administers. (See, e.g. City of Commerce (2018) PERB Decision No. 2602-M,
pp. 3-5 [harmonizing Carlsbad Unified School District (1979) PERB Decision No. 89 and its
progeny with Court of Appeal precedent under the MMBA].)
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of these subdivisions’ relationship to one another and to the facts of this case, we address
subdivision (a), then (d), (c), and (b).
Subdivision (a)
Subdivision (a) prohibits employers from interfering with employee rights. MMBA
section 3502 guarantees employees “the right to . . . participate in the activities of employee
organizations of their own choosing.” This includes the right to participate in selecting
employee organization leaders. This right is so fundamental that the National Labor Relations
Board (NLRB) has long held that “[i]t goes without saying” that members’ efforts to select
their union’s leaders are protected employee rights. (Local Union No. 18, International Union
of Operating Engineers (1963) 141 NLRB 512, 518-521.)
Subdivision (d)
The Legislature adopted MMBA section 3506.5 in 2011. (Stats. 2011, ch. 271, § 2.)
Subdivision (d) uses the same pertinent language as PERB Regulation 32603, subdivision (d),
promulgated in 2001, shortly after PERB gained jurisdiction over the MMBA, and is nearly
identical to provisions in other statutes administered by PERB. (See, e.g., Ralph C. Dills Act
(Dills Act),7 section 3519, subd. (d); Higher Education Employer-Employee Relations Act
(HEERA),8 section 3571, subd. (d); Educational Employment Relations Act (EERA),9 section
3543.5, subd. (d).) Accordingly, it is appropriate to consider authority discussing these parallel
statutes in construing section 3506.5, subdivision (d). (Coachella Valley Mosquito and Vector
Control Dist. v. California PERB (2005) 35 Cal.4th 1072, 1089-1090 [California’s public
7 The Dills Act is codified at Government Code section 3512 et seq.
8 HEERA is codified at Government Code section 3560 et seq.
9 EERA is codified at Government Code section 3540 et seq.
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sector labor relations statutes are interpreted harmoniously, absent differences revealing a
contrary legislative intent].)
Subdivision (d) consists of three clauses, providing that public agencies shall not: (1)
“Dominate or interfere with the formation or administration of any employee organization,” (2)
“contribute financial or other support to any employee organization,” or (3) “in any way
encourage employees to join any organization in preference to another.” Although the second
complaint permitted the Association to argue that the City’s conduct amounted to
“domination” and/or “interference with the administration of the Association,” the evidentiary
record warrants close review only of the interference theory, as the Association did not
introduce evidence of domination. One of the central interference allegations is that the City
supported one internal union faction over the other, rather than remaining neutral.
While much PERB precedent addresses an employer’s duty to remain strictly neutral
when two different employee organizations are in competition with each other (see, e.g.,
Salinas Valley Memorial Healthcare System (2010) PERB Order No. Ad-387-M, adopting
administrative determination at p. 25), the first two clauses of subdivision (d) apply even in the
absence of competing unions. For instance, the subdivision’s first clause applies to allegations
that an employer is “involved in the [] formation of [an employee organization] or at any time
has [attempted to] influence[] [management of the organization].” (Azusa Unified School
District (1977) EERB10 Decision No. 38, adopting proposed decision, p. 6, fn. 3 (Azusa).) In
such cases, we must consider the level of the employer’s involvement. For example, in
Redwoods Community College District (1987) PERB Decision No. 650, the Board adopted a
decision by an ALJ finding the employer violated its duties under EERA section 3543.5,
10 Prior to 1978, PERB was known as the Educational Employment Relations Board or
EERB.
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subdivision (d) through pervasive involvement in both formation and administration of an
employees’ council that functioned as an employee organization. (Id. at p. 2 and adopting
proposed decision at pp. 54-55.) An employer may also violate the first clause by interfering
with an employee organization’s internal affairs. (See Poway Unified School District (2015)
PERB Decision No. 2441 (Poway), adopting proposed decision, p. 45 [noting that an
employer should not intervene in an internal union election, “lest it be held liable for
interfering with the administration of the union.”].)11
Under the second clause, similarly, “it may be an unfair practice to render assistance to
an employee organization even if there is no other organization in competition with it.”
(Azusa, supra, EERB Decision No. 38, pp. 6-7.) An employer can extend benefits to a labor
organization in a spirit of cooperation (ibid.), but may not lend so much assistance that the
employee organization appears to become a “company union.” (Clovis Unified School District
(1984) PERB Decision No. 389, p. 19.)
Under subdivision (d), as in other interference cases, a charging party need not show
actual harm in order to establish interference. As we have noted:
[T]he charging party must allege facts which demonstrate that the
employer’s conduct tends to interfere with the internal activities
of an employee organization or tends to influence the choice
between employee organizations. . . . Proof that an employer
intended to unlawfully dominate, assist or influence employees’
11 In limited circumstances, an exclusively represented employee can establish an unfair
practice charge against his or her union even though the topic of the charge relates to internal
union affairs governed by the union’s bylaws or constitution. (See, e.g. Service Employees
International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106, p. 8 [internal union
affairs subject to duty of fair representation if such affairs have a substantial impact on the
relationship between unit members and their employers].) In the instant case, in contrast, there
is no need for the Association to establish a “substantial impact” on the relationship between
unit members and their employers, as PERB is statutorily-directed to resolve allegations that
an employer has interfered in the internal affairs of a union. (Poway, supra, PERB Decision
No. 2441, adopted proposed decision, p. 45.)
24

free choice is not required. Nor is it necessary to prove that
employees actually changed membership as a result of the
employer’s act. . . . The threshold test is “whether the employer’s
conduct tends to influence [free] choice or provide stimulus in
one direction or the other.”
(County of San Bernardino (2018) PERB Decision No. 2556-M, adopting proposed decision at
p. 22 (internal citations omitted).)
While we most typically apply these standards in cases concerning competition
between employee organizations, as noted above, that need not always be the case. In
accordance with the statutory language and our admonition against employer interference in
internal union affairs (Poway, supra, PERB Decision No. 2441, adopting proposed decision,
p. 45), an employer’s duty of strict neutrality extends to internal union affairs, even in the
absence of a competing employee organization.
However, we must qualify and flesh out an employer’s duty of neutrality by noting that
an employer may face a dilemma when two competing union factions each plausibly claims to
represent the organization. NLRB precedent helps to illustrate what employer actions may or
may not violate its duty of neutrality in such a case. In Howland Hook Marine Terminal Corp
(1982) 263 NLRB 453 (Howland Hook), for instance, a dispute arose between internal union
factions after the union elected as president “an insurgent candidate opposed to the policies of
the Local’s incumbent president and executive board.” (Id. at p. 453.) The new president held
an election for an interim steward, but a group of the union’s executive officers asserted that
the election violated the union’s bylaws. (Id. at pp. 453-454.) After the employer recognized a
newly elected interim steward, executive officers in the opposing faction threatened a work
stoppage unless the employer recognized a different person that the opposing faction believed
properly held the interim position. (Id. at p. 454.) The employer acceded to this pressure and
25

began recognizing the opposing faction’s preferred interim steward. (Ibid.) The NLRB found
the employer did not commit an unfair practice, emphasizing there was no evidence the
employer seized on the dispute to avoid bargaining obligations or otherwise acted in bad faith
in deciding whom to recognize as steward pending the outcome of internal union procedures or
other litigation between the factions. (Ibid.) Notably, “as a result of an internal union
dispute,” the employer “was faced with competing claims from two factions,” each of which
had apparent authority based on “at least, a colorable claim” under plausible interpretations of
the union’s bylaws. (Ibid.) Those claims presented the employer “with the choice of having to
refuse to recognize any interim steward, a course hardly consistent with its obligations to
bargain,” or “recognizing the choice of one faction over that of the other.” (Ibid.) We endorse
the NLRB’s ultimate conclusion in favor of the employer, and hold that an employer is not
liable for interference, domination, unlawful assistance, or discrimination where it merely
attempts in good faith to comply with its duty to bargain—which may require it to recognize
one candidate on an interim basis pending the outcome of internal union procedures or other
litigation between the factions—irrespective of whether the employer ends up temporarily
recognizing the “wrong” candidate based on the outcome of such procedures. (Ibid.)
In contrast, however, we hold that an employer violates its duty of neutrality if it favors
one internal union faction over the other in a manner that materially strays from a good faith
effort to comply with its duty to deal with the union’s chosen representatives. In Modern Drop
Forge Co., Inc. (1998) 326 NLRB 1335 (Modern Drop Forge), for instance, the employer did
not merely attempt to comply with its duty to bargain as best as it could under the
circumstances. The Company changed the locks on the union’s bulletin boards and gave the
keys only to the union’s so-called “loyalist” faction. (Id. at p. 1340.) The loyalists, in turn,
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used the bulletin boards to post a notice to members that falsely declared the officers’ positions
“vacant” and called for an election to replace them, all without a colorable claim under the
union’s bylaws. (Ibid.) The Company then gave one of the loyalists release time to plan the
purported election. (Ibid.) About 40 members attended the purported election, but the
loyalists hired security guards who denied entrance to approximately 35 or 40 other members.
(Ibid.) Although a union officer reported these facts to the employer, it nonetheless recognized
the new leadership. (Id. at p. 1341.) The employer also informed employees in writing that
“the ‘former’ officers . . . were ‘summarily kicked out of office,” and urged employees to
support the “new” officers. (Id. at p. 1344.) Although the old officers secured an order from a
federal judge invalidating the purported election, the employer stated that it was not bound by
the ruling. (Id. at p. 1342.) Whereas in Howland Hook, both union factions had apparent
authority to speak on behalf of the union, in Modern Drop Forge, the loyalists “obviously did
not have even a colorable claim.” (Id. at p. 1345.) The employer took actions that tended to
interfere in internal union affairs and were not necessary to comply in good faith with the
employer’s duty to bargain. While those factors alone would be enough to show a violation,
even without evidence of intent, the employer in Modern Drop Forge also manifested an
unlawful intent to favor one internal union faction. (Ibid.)
Subdivision (c)
The duty to meet and confer in good faith requires employers to bargain with an
employee organization’s designated representatives. (Anaheim Union High School District
(2015) PERB Decision No. 2434, pp. 16-17.) As evident in Howland Hook and Modern Drop
Forge, an employer that chooses to bargain with one faction over another will generally be
found to have acted unlawfully only to the extent it is found to have interfered in the union’s
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internal affairs based on the above-stated factors. (Modern Drop Forge, supra, 326 NLRB at
p. 1344.)
Subdivision (b)
Subdivision (b) prohibits employers from “deny[ing] []employee organizations the
rights guaranteed to them by [the MMBA].” In a case involving an employer that allegedly
favors one of two competing union factions, an employer’s liability under subdivision (b) will
generally turn on whether it has unlawfully interfered in the union’s internal affairs based on
the above-stated factors.
B. 	Guthrie’s Alleged Interference on November 8, 2013
The ALJ dismissed the allegations relating to Guthrie’s November 8, 2013 comments,
crediting Guthrie’s testimony about what happened and finding that Guthrie’s account of what
occurred did not constitute interference. For the reasons noted ante, we agree with the ALJ’s
determination that Guthrie’s testimony was more credible than McGinnis’ contrary testimony.
Based on Guthrie’s testimony regarding the meeting, we find that most of his comments were
lawful, but he interfered with internal Association affairs by offering an incentive for a change
in internal Association leadership.
Specifically, we find that Guthrie encouraged McGinnis to remove Cook as the
Association president, by stating that he would resume labor-management meetings if Cook
were ousted. Irrespective of whether we view Guthrie’s comments as a promise of benefit, as
favoring one internal union faction over another, or as a combination of such actions, we apply
an objective standard and consider whether a statement would tend to interfere with protected
activities based on a reasonable employee’s likely view of the statement. (Regents of the
University of California (1983) PERB Decision No. 366-H, pp. 15-16, fn. 10.)
28

Guthrie’s phrasing at one point indicated that either a change in Association leadership
or a change in the Association’s “philosophy” would be sufficient for him to agree to resume
labor-management meetings. In order to refrain from interfering, Guthrie should have
restricted himself to discussing the Association’s philosophy. Instead, he went further in the
wrong direction with a follow-up commitment that he would resume labor-management
meetings could if the Association ousted Cook from office. A reasonable employee would
view these comments as inserting the employer into internal union affairs and/or as favoring
one faction in the union, and as promising a benefit if the Association members took a
particular action with respect to their leadership. Guthrie made things worse with his later
statements that he would wait three weeks before telling Cook that he was discontinuing labor-
management meetings. Given his earlier statements, the most reasonable interpretation was
that he was encouraging McGinnis to remove Cook in the next three weeks and thereby save
the labor-management meetings. Although McGinnis requested time to seek Cook’s
resignation, this was not a spontaneous statement; rather, it responded to Guthrie’s ultimatum
that he would discontinue labor-management meetings if Cook remained in office.
As discussed ante, the MMBA protects union members’ right to choose their union
leaders without employer interference. Guthrie was not in the position of the employer in
Howland Hook, who had no choice but to make a good faith choice between two competing
factions both with apparent authority. Rather, Guthrie overstepped by inserting the employer
into a leadership debate.
We are not asked to determine if it was unlawful for Guthrie to discontinue the labor-
management meetings. Rather, the alleged interference was in explicitly holding out the
meetings, a benefit, as an incentive for the Association to oust its president. We find no
29

operational necessity for Guthrie to act in that manner. In the absence of any operational
necessity, we need not determine whether Guthrie’s statements tended to cause only slight
harm, or were inherently destructive.
C. 	Guthrie’s Alleged Interference on February 21, 2013
The first complaint alleges that Guthrie interfered with employee rights and the
Association’s right to represent its members when he told Association members that the
Association’s president, vice president, and attorney had lied to them, that Guthrie was on their
side, and that the Association’s attorney had threatened him. The ALJ found that Guthrie was
permissibly responding to a personal attack on his integrity. We agree, for the reasons
discussed below.
The MMBA does not forbid managers from responding to personal attacks. (City of
Oakland (2014) PERB Decision No. 2387-M, p. 27; State of California (Department of
Transportation) (1983) PERB Decision No. 304-S, p. 28.) But a manager cannot go so far as
to coerce or disparage protected activity or the collective bargaining process, nor make explicit
or implicit threats or promises based on such activity, and a manager’s remarks may or may
not constitute persuasive evidence of animus in a discrimination case, depending on all the
relevant circumstances. (City of Oakland, supra, PERB Decision No. 2387-M, pp. 25-26;
County of Riverside (2010) PERB Decision No. 2119-M, pp. 18-20.) Brinksmanship,
intemperate remarks, or exaggerations likely to mislead employees may, depending on the
context, constitute illegal interference in their own right, or they may constitute evidence of
animus, particularly if they are not directly responsive to a personal attack. (City of Oakland,
supra, PERB Decision No. 2387-M, p. 25, fn. 5.)
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As noted ante, the Association held a general membership meeting on February 15,
2013. When one of the members asked if the Association had slowed down the part-time
dispatcher hiring process, Phillips said something to the effect that if Guthrie claimed the
Association had slowed down the process, he was not telling the truth. Multiple attendees later
told Guthrie that Phillips had called him a liar. Thus, when Guthrie addressed a group of
dispatchers six days later, he was responding to a personal attack. No witness testified that he
did so in a threatening or coercive manner. Rather, Guthrie’s response that he had not lied, and
his efforts to back up his contention with a brief discussion of the timeline of events, did not
constitute interference.
D. 	The City’s Conduct Following the November 2013 Association Board Election
As discussed ante, Ortiz began efforts to change the Association’s leadership at the
Association’s June 17, 2013 membership meeting. Ultimately, on November 14, 2013, Ortiz
and eight other Association members purported to remove Cook, McGinnis, and Cuddihy from
the Association Board. On November 18, the faction representing the purported new
Association Board informed the City about the result of the November 14 meeting.
Specifically, the new board provided the City with a packet of information indicating that a
supermajority of Association members voted to recall Cook, McGinnis, and Cuddihy and to
replace them with Ortiz, Vercillo, and Ngai, and further provided the minutes, proxy forms,
and an accompanying memorandum from Ortiz purporting to introduce the new Association
Board.
Two days later, by e-mail at 3:06 p.m. on November 20, the City recognized the new
Association leadership, after first having sought advice from the City’s outside labor relations
counsel. Eleven minutes later, via an e-mail at 3:17 p.m., Cook informed the City that the
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prior Association Board disputed the validity of the November 14 election. The City, however,
continued to recognize the new Association Board.
Under the standards discussed ante, we find that the City did not violate the MMBA in
recognizing and bargaining with the new Association Board. When presented with rival
colorable claims about a disputed union election, an employer remains obligated to deal with
the union and therefore may have little choice but to recognize one faction on an interim basis,
pending any internal union appeals or other litigation that may occur to resolve the dispute.
Here, the facts indicate when the City initially recognized the new Association Board, the City
had not yet been presented with evidence that Cook, McGinnis, and Cuddihy had a colorable
claim to the Association’s leadership positions. Rather, the City at that point had before it only
a packet of information indicating that a supermajority of Association members voted to recall
Cook, McGinnis, and Cuddihy and to replace them with Ortiz, Vercillo, and Ngai, plus the
minutes, proxy forms, and an accompanying memorandum from Ortiz purporting to introduce
the new Association Board.
Shortly after recognizing the new Association Board, the City arguably received a
competing claim.12 However, even assuming for the sake of argument that the City was at that
point faced with competing colorable claims, the record does not demonstrate that the City
12 The e-mail Lazzaretto received from Cook on November 20, 2013 did not directly
dispute the election or request the City take any action, but it attached a letter Cook had written
to the Arcadia City Federal Credit Union. In the third paragraph of this letter, Cook claimed as
follows: “[T]he so-called ‘Minutes’ of a purported membership meeting on November 14,
2013, are fraudulent in that no authorized membership meeting took place that day.” Neither
the e-mail nor the attached letter explain the importance of whether the meeting at which
Cook, McGinnis, and Cuddihy were removed was “an authorized membership meeting” or in
any way disputes the accuracy of the other documents Ortiz sent to the City. To the extent that
Cook, McGinnis, and Cuddihy claim they could only have been legitimately removed at “an
authorized membership meeting,” or that the opposing faction improperly used proxy votes,
there is no evidence the Association made such arguments to the City.
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thereafter acted in bad faith. Although Guthrie, and by extension the City, had preferred that
Cook be ousted, there is no evidence that the City seized on the internal dispute to avoid
bargaining obligations, or otherwise violated the above-discussed parameters when it decided
to continue recognizing the new Board.
Notably, we need not determine to what extent Guthrie’s interference a year earlier, at
the November 8, 2012 meeting with McGinnis, could support a remedy that involves either
wholly undoing the City’s decision to recognize the new Association Board in November 2013
or requiring the City to take any actions other than posting a notice and refraining from further
interference. (Cf. County of Monterey (2004) PERB Decision No. 1663-M, adopting proposed
decision at p. 30 and fn. 19 [discussing remedies such as deregistration and disestablishment].)
Rather, posting a notice and refraining from further interference is the most that could be
called for here, given the parties’ partial settlement agreement designating Cook, McGinnis,
and Cuddihy as the Association’s representatives for the purpose of this matter, while
recognizing Ortiz, Vercillo, and Ngai as the Association’s President, Secretary, and Treasurer
prospectively.13 Moreover, along the same lines, the record contains no evidence that any
party sought to resolve the leadership dispute using internal union procedures, through the
13 Even had the parties not reached the aforementioned partial settlement agreement, it
is far from clear that the Association could, on this record, achieve a remedy stronger than an
order to cease and desist from further interference. Guthrie’s conduct at the November 8, 2012
meeting with McGinnis happened a year before the purported recall, and the Association
presented no evidence any members who voted to recall the Association Board were influenced
by it. Similarly, while we find, post, that the City engaged in bargaining violations, it is far
from clear that the Association could, on this record, show that those violations could support a
stronger remedy. Indeed, those witnesses who voted in favor of the recall all stated the City
had no effect on their decision, which was instead motivated solely by the conduct of Cook and
Phillips. Their testimony is supported by ample evidence of conflicts between various
members on the one hand and Cook and/or Phillips on the other.
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procedures laid out in Corporations Code section 7616 for judicial determination of the validity
of an election, or via other possible avenues.14
The second complaint alleges the City dominated and interfered with the administration
of the Association by providing the new Association Board with access to the Association’s
bank account and post office box. The record contains no evidence the City was involved in
the new Association Board’s access to the bank account or post office. Accordingly, we
dismiss this allegation.
E. 	Additional Interference Allegations
The second complaint alleges the City interfered with employee rights by sharing
information about the first charge with employees and by not disciplining Ortiz for sending an
e-mail on June 3, 2013 discussing it. The record reveals that the City provided the first charge
to an employee who requested it in a public record request, and that Ortiz then used the City’s
e-mail system to send out an e-mail regarding the charge. The City did not discipline Ortiz for
doing so. We find the record to be devoid of any facts suggesting that these events tend to
cause even slight harm to protected rights, and we therefore need not even consider the City’s
reasons for its decisions. Thus, we dismiss these allegations.
II. 	Bargaining Allegations
In determining whether a party has violated its duty to meet and confer in good faith,
PERB uses a “per se” test or a “totality of the conduct” analysis, depending on the specific
conduct involved and its effect on the negotiating process. (City of Davis (2018) PERB
Decision No. 2582-M, p. 9.) Per se violations generally involve conduct that violates statutory
14 The Association was organized as a California Nonprofit Mutual Benefit
Corporation, and therefore was apparently subject to Corporations Code section 7616.
34

rights or procedural bargaining norms. (Fresno County In-Home Supportive Services Public
Authority (2015) PERB Decision No. 2418-M, p. 13.)
The totality of conduct test applies to bad faith bargaining allegations that our precedent
has not identified as constituting a per se refusal to bargain. (City of Davis, supra, PERB
Decision No. 2582-M, p. 9.) Under this test, the Board looks to the entire course of
negotiations, including the parties’ conduct at and away from the table, to determine whether
the respondent has bargained in good faith. (Ibid.) The ultimate question is whether the
respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate
negotiations. (Id. at p. 10.)
For the reasons discussed below, we find the City violated its duty to bargain in good
faith. First, the City committed a per se violation by unilaterally imposing ground rules in
advance of negotiations. Second, the City bargained in bad faith under the totality of the
circumstances by inviting a former Association leader to participate in a bargaining meeting
without notifying the Association’s official representatives and by making an “exploding”
offer without adequate justification, as well as by unilaterally imposing ground rules.
A. 	Per Se Violation
Parties must bargain bilaterally regarding ground rules for negotiations in the same
manner they must bargain in good faith about substantive terms or conditions of employment.
(County of Orange (2018) PERB Decision No. 2594-M, pp. 8-16.) As relevant here, all format
and timing issues relating to negotiations are bargainable ground rules, including but not
limited to when to commence negotiations, deadlines for phases of negotiations, topic
sequences, the use of cooling off periods, and interest-based bargaining formats. (Id. at p. 9,
p. 13 fn. 6, & p. 14 fn. 7; See City of Livermore (2014) PERB Decision No. 2396-M, p. 10;
35

Los Angeles Unified School District (1992) PERB Decision No. 964, p. 9.) An employer may
not unilaterally set ground rules. (County of Orange, supra, PERB Decision No. 2594-M,
pp. 8-16; Anaheim Union High School District (1981) PERB Decision No. 177, p. 9.)
The City violated the MMBA by imposing the following ground rules. First, the City
unilaterally determined that bargaining should commence much earlier than the parties had
previously anticipated. Second, the City unilaterally determined that this early start date would
be paired with an “accelerated” approach capped by a late November or early December 2013
deadline and, in the absence of a deal by the deadline, a cooling off period in which there
would be no negotiations. Since the City announced these ground rules as a fait accompli at
the outset of negotiations, it eliminated the give and take that are the essence of good faith
bargaining and thus committed a per se violation of its duty to meet and confer. (San Mateo
County Community College District (1979) PERB Decision No. 94, pp. 15-16.)
B. 	Bad Faith Under the Totality of Conduct Test
To resolve a bad faith bargaining allegation premised wholly or in part on conduct that
does not constitute a per se violation, we apply a totality of conduct test. As previously noted,
the ultimate question is whether the respondent’s conduct, when viewed in its totality, was
sufficiently egregious to frustrate negotiations. (City of San Jose (2013) PERB Decision
No. 2341-M, p. 19.) Under the totality of the circumstances test, the Board considers a variety
of indicia of bad faith. A single indicator of bad faith, if egregious, can be a sufficient basis
for finding that a negotiating party has failed to bargain in good faith. (Ibid.) In this case, we
find that the City bargained in bad faith based on the following three indicia.
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1. 	Unilateral Imposition of Ground Rules
A per se violation may also support a finding of bad faith under the totality of conduct
test. (City of San Jose, supra, PERB Decision No. 2341-M, p. 23.) In this case, the City’s
unilateral imposition of ground rules, as described above, indicated bad faith.
2. 	Undermining the Association’s Selection of Representatives
Employees have the right to negotiate collectively through a representative of their own
choice. (Hanford Joint Union High School District Board of Trustees (1978) PERB Decision
No. 58, p. 7.) Accordingly, parties have the right to appoint their own negotiators, and neither
side may dictate who their opposing representatives will be. (Anaheim Union High School
District, supra, PERB Decision No. 2434, pp. 16-17; Yolo County Superintendent of Schools
(1990) PERB Decision No. 838, adopting proposed decision at p. 33.) Absent highly unusual
circumstances not present here, an employer must bargain with an employee organization’s
designated representatives. (Anaheim Union High School District, supra, PERB Decision
No. 2434, p. 17.) Thus, efforts by the employer to undermine an employee organization’s
selected negotiators indicate an absence of a good faith, while a flat ban on meeting with a
particular representative would be a per se violation. (Id., citing Yolo County Superintendent
of Schools, supra, PERB Decision No. 838.)
Here, the City undermined the Association’s selection of representatives when it invited
Campbell to the negotiations kickoff and when it gave her information about negotiations to
distribute to the Association’s members. The negotiations kickoff was a meeting reserved for
the leaders of the City’s unions, and the City used the meeting to discuss its goals and
announce ground rules for negotiations. But Campbell was not an Association leader and the
Association did not designate her to attend on its behalf. This undermined the Association’s
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________________________
selected representatives because Campbell became privy to detailed information about
negotiations, initially kept the information to herself, and ultimately shared the information
directly with the Association’s members. This elevated Campbell at the expense of the
Association’s designated representatives, thereby indicating the City’s bad faith.15 Further,
when Campbell e-mailed the kickoff PowerPoint to the members, she wrote in part, “The City
Manager indicated that if any individual union member had questions about the [] upcoming
negotiations or the information on the power point [sic], please feel free to contact Hue Quach
or Jason Kruckeberg.” Thus, the City further undermined the Association’s designated
representatives by giving Campbell important bargaining information, which empowered her to
encourage Association members to go directly to management with questions about
negotiations.
3. 	The City’s Exploding Offer
In County of Tulare (2015) PERB Decision No. 2461-M, the employer presented a last,
best, and final offer and requested a response within three weeks. (Id. at p. 5.) The union filed
a charge claiming that this request evidenced bad faith, but the Board dismissed the charge,
noting that the employer did not threaten any particular consequence if the union failed to
respond by that date, and the employer “took no action when [the union] did not respond by the
requested date.” (Id., adopting proposed decision at p. 12.) The Board left open under what
circumstance a party may lawfully notify the other party that its offer will expire if not
accepted by a particular deadline. In the below discussion, we review PERB decisions
15 Guthrie was aware Campbell had expressed a conflict between her role on the
Association Board and her duties as a manager, and chose the latter when she resigned. While
this fact is not critical to our finding, and the record does not reveal how widely this fact was
known within management, it at least demonstrates the range of dangers that occur when an
employer rather than a union determines who will attend a meeting on behalf of the union.
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touching on exploding offers, and, for the reasons discussed below, we clarify and flesh out
our standard for such cases: a party cannot in good faith make an exploding proposal unless it
can adequately explain a legitimate basis for doing so.
Our holding is rooted in the fact that regressive bargaining—making proposals that are,
as a whole, less generous to the other party than prior offers—manifestly moves bargaining
parties further away from agreement and therefore indicates bad faith unless such regressive
bargaining is supported by an adequate explanation. (Anaheim Union High School District
(2016) PERB Decision No. 2504, adopting proposed decision at p. 43.) Most typically, a party
must show changed economic conditions or other changed circumstances to support its
regressive posture. (Ibid.)
An exploding offer should be held to the same standard, as it telegraphs a threat to move
the parties farther apart unless the other party accedes to a particular unilaterally-established
deadline. (Abramson, Fashioning an Effective Negotiation Style: Choosing Between Good
Practices, Tactics, and Tricks, supra, 23 Harv. Negot. L. Rev. at 333 [an exploding offer may be
a sound negotiating practice if justified, but otherwise may be a ploy].) If a party was free to
make an exploding offer at any time and offer no justification for threatened or actual regressive
bargaining other than the other side’s failure to accept the proposal by a given deadline, then
exploding offers would amount to an exception that swallows the regressive bargaining rule.
Were that the law, it would be hard to imagine reasons why parties would not attach deadlines to
most or all significant proposals, thereby achieving maximum flexibility to later engage in
regressive bargaining.
We also reach this conclusion based on our substantial experience fostering bargaining
norms that lead to harmonious labor relations, including our carefully crafted case law
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distinguishing bad faith inflexibility from lawful hard bargaining, as well as our precedent
finding bad faith when a party adopts a “take-it-or-leave-it” attitude or unilaterally imposes a
ground rule or a deadline on bargaining. As to the first point, a party exhibits bad faith if it fails
to provide an adequate explanation for its inflexible position. (City of San Ramon (2018) PERB
Decision No. 2571-M, p. 8.) Along the same lines, a take-it-or-leave-it attitude is evidence of
bad faith, because it shows a predetermination to achieve capitulation to all of its economic
demands. (Id. at p. 9.) Moreover, we have noted not only that an employer may not
unilaterally set ground rules, but also that an employer’s upcoming budget deadline generally
does not constitute exigent circumstances allowing the employer to accelerate negotiations
unilaterally. (Id. at p. 10.) Therefore, when a party issues an exploding offer without an
adequate explanation as to why its bargaining position should become less generous on a given
date in the future, it effectively imposes its own ground rule and deadline, evidences unlawful
inflexibility, and manifests a take-it-or-leave-it attitude.
Although these principles are strongly rooted in PERB precedent, prior decisions have
not delineated in any detail how they apply to exploding offers. For instance, in Trustees of the
California State University (2006) PERB Decision No. 1871-H, the Board adopted a regional
attorney’s dismissal letter finding that the employer’s exploding offer in that case did not
constitute unlawful “conditional bargaining.” (Id., adopting dismissal letter at p. 2 [no
conditional bargaining found, where the condition at issue was a deadline within the parties’
control].) The skeletal dismissal letter indicated that no allegation was at issue other than
alleged conditional bargaining. For instance, there is no discussion of threatened or actual
regressive bargaining. In the absence of any such allegation, the dismissal letter is also unclear
40

as to what reason(s), if any, the employer provided for moving the parties further away from
agreement by rescinding its wage offer.
In County of Solano (2014) PERB Decision No. 2402-M (Solano), an ALJ declined to
find an employer engaged in bad faith when it made an exploding wage proposal and
ultimately withdrew the offer after the union did not accept it by the employer’s deadline. (Id.,
proposed decision at pp. 10, 15 & 22-23.) Because neither party excepted to this finding, it
was not before the Board and the ALJ’s finding is not precedential. (County of Santa Clara
(2018) PERB Decision No. 2613-M, pp. 7-8, fn. 6 [even where Board adopts a proposed
decision, ALJ conclusions are binding only on the parties if there are no exceptions to such
conclusions and the Board declines to reach the issues sua sponte]; accord County of Orange
(2018) PERB Decision No. 2611-M, p. 2, fn. 2; City of Torrance (2009) PERB Decision
No. 2004, p. 12.) However, we examine the ALJ’s conclusion nonetheless, because it helps to
illustrate permissible and impermissible exploding offers.
The employer in Solano entered negotiations with a significant budget deficit, and from
the outset the employer insisted on concessionary proposals that would substantially narrow
the budget gap; although it included the exploding wage increase in its package proposal, this
increase was more than offset by the employer’s concessionary demands on pension, health
benefits, and furloughs. (Solano, supra, PERB Decision No. 2402-M, adopting proposed
decision at p. 8.) The employer explained its exploding wage offer, and its eventual
withdrawal of that proposal, in a legally sufficient manner: the employer could only afford the
wage increase if it started the overall concessionary package by a given date, and when that
date elapsed with the employer still unable to begin reaping any net savings, it had to pay off
its continuing structural deficit by taking the wage increase off the table. (Id., adopting
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proposed decision at pp. 22-23.) This rationale adequately supported the employer’s exploding
offer, as the MMBA required it to maintain the status quo until impasse or agreement, and it
could only implement retroactive wage or benefit cuts via agreement, but not via imposition.
While Solano demonstrates one potential legitimate rationale for an exploding offer in
concessionary bargaining cycles, in other cases, including the instant one, an employer’s net
proposals are not concessionary. In these circumstances, too, we must consider the employer’s
stated rationale and determine if it legitimately supports the exploding offer. For instance,
when an employer offers a retroactive wage increase, its initial lump sum wage cost invariably
escalates the longer negotiations continue, but many employers in such circumstances can set
aside the money needed to pay the retroactive wage increase as time goes on without a ratified
contract. A party asserting that it cannot set aside money in this manner, or asserting a
different basis for its exploding offer, must be in a position to prove its rationale if requested to
do so. (City of Davis (2018) PERB Decision No. 2582-M, pp. 19-20 & fn. 11 [employer
evinces bad faith if it does not rationally support its bargaining proposals, including by
providing requested information to back up its claims, as “[g]ood faith bargaining necessarily
requires that claims made by either bargainer should be honest claims,” and if an argument is
“important enough to present in the give and take of bargaining,” the party making the claim
must be able to back it up if asked] [internal citations omitted].)
Before applying these principles to the instant case, we note that in Anaheim Union
High School District, supra, PERB Decision No. 2504, the Board cited Trustees of the
California State University, supra, PERB Decision No. 1871-H and Solano, supra, PERB
Decision No. 2402-M, and asserted that a party establishing a deadline for acceptance of a
proposal does not commit a violation under PERB’s per se bad faith bargaining test. (Id.,
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adopting proposed decision at p. 38.) However, when the Board moved from a per se violation
analysis to applying the totality of conduct test, it noted that “parties may offer new, even
regressive proposals if based upon changed economic conditions,” and that without adequate
explanation the change in position is evidence of bad faith. (Id., adopting proposed decision at
pp. 43-44.) We hold that a bargaining party similarly evidences bad faith under the totality of
conduct test if it does not adequately justify a threatened change in position that is inherent in
an exploding offer.
We turn now to the instant facts. While the City’s exploding offer was not a per se
violation, it is an indicator of bad faith under the totality conduct test unless the City
adequately explained to the Association a legitimate basis for its deadline and its regressive
posture after that deadline. We find no such adequate explanation on these facts. As an initial
matter, the City’s exploding offer was inextricable from the unilaterally-imposed ground rules
discussed ante. Moreover, the City’s stated reason for establishing a November deadline was
that the City would be holding a City Council election the following spring. We find that the
City’s exploding offer evidenced bad faith, given the significant time lag between the City’s
unilaterally-imposed deadline and the City Council election, and also given the inherent
uncertainty as to whether the eventual election would lead to a new Council majority favoring
new budgetary expenditures so significant as to require the City to take a less generous
bargaining position with the Association.
For the foregoing reasons, we find that the City engaged in bad faith bargaining under
both the per se and totality of conduct tests. However, because of the unique procedural posture
of this case, we order only a limited remedy. As noted ante, the Association leadership elected
on November 14, 2013 bargained with the City and agreed to a successor MOU, the
43

Association has not demonstrated the City caused the change in leadership, and the parties
reached a sui generis partial settlement prior to the formal hearing in this matter. In these
unusual circumstances, the appropriate remedy for the City’s conduct is a cease and desist
order and the posting of a notice, and we find no need for any additional remedies that might
otherwise be available.
ORDER
Based on the foregoing findings of fact and conclusions of law, the entire record in this
case, the Public Employment Relations Board (PERB) finds the City of Arcadia (City)
violated: (1) MMBA sections 3506 and 3506.5, subdivisions (a) and (b), and PERB Regulation
32603, subdivisions (a) and (b), by encouraging Arcadia Civilian Police Employees
Association (Association) Vice President Pamela McGinnis to remove President Judy Cook
from office; and, (2) MMBA sections 3503, 3505, 3506, and 3506.5, subdivisions (a), (b), and
(c), and PERB Regulation 32603, subdivisions (a), (b), and (c), by undermining the
Association’s selection of bargaining representatives, unilaterally setting ground rules for
bargaining, and imposing a time limit to accept a bargaining proposal that was not necessitated
by any legitimate deadline.
The County, its governing board and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with Association members’ right to select their own leaders;
2. 	Undermining the Association’s selection of its bargaining
representatives;
3. 	Imposing ground rules without notice and an opportunity to meet and
confer; and
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4. 	Placing time deadlines on proposals without adequate justification.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays after this decision is no longer subject to
appeal, 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. In addition
to physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the City to communicate with its
employees in the bargaining unit represented by the Association. Reasonable steps shall be
taken to ensure that this Notice is not reduced in size, altered, defaced, or covered with any
other material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel’s designee. Respondent shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on the Association.
Members Banks and Paulson joined in this Decision.
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APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case Nos. LA-CE-847-M & LA-CE-913-M, Arcadia
Police Civilian Employees Association, et al. v. City of Arcadia, in which all parties had the
right to participate, it has been found that the City of Arcadia violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3506 and 3506.5, subdivisions (a) and (b),
and PERB Regulation 32603, subdivisions (a) and (b), by encouraging former Association
Vice President Pamela McGinnis to remove former President Judy Cook from office; and
Government Code sections 3503, 3505, 3506, and 3506.5, subdivisions (a), (b) and (c), and
PERB Regulation 32603, subdivisions (a), (b) and (c), by undermining the Association’s
selection of bargaining representatives, unilaterally setting ground rules for bargaining, and
imposing a time limit on a bargaining proposal that was not necessitated by any legitimate
deadline.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Interfering with Association members’ right to select their own leaders;
2. 	Undermining the Association’s selection of its bargaining representatives;
3. 	Imposing ground rules without notice and an opportunity to meet and confer;
and
4. 	Placing time deadlines on proposals without adequate justification.
Dated: _____________________ 	City of Arcadia
By: _________________________________
Authorized Agent
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.