City and County of San Francisco (PERB 1611M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SAN FRANCISCO FIREFIGHTERS UNION,
LOCAL 798, IAFF, AFL-CIO,

Charging Party, Case No. SF-CE-53-M

v. PERB Decision No. 1611-M

CITY & COUNTY OF SAN FRANCISCO, April 2, 2004

Respondent.

Appearance: McCarthy, Johnson & Miller by Diane Sidd-Champion, Attorney, for San
Francisco Firefighters Union, Local 798, IAFF, AFL-CIO.

Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (Board)
on appeal by the San Francisco Firefighters Union, Local 798, IAFF, AFL-CIO (Union) ofa
Board agent’s dismissal (attached) of its unfair practice charge. The charge alleged that the
City & County of San Francisco (City) violated the Meyers-Milias-Brown Act (MMBA)! by
unilaterally changing the discipline imposed for first-time violations of the City’s alcohol and
drug use policy.

The Board has reviewed the entire record in this matter, including the original and

amended unfair practice charges, the warning and dismissal letters and the Union’s appeal.

' The MMBA is codified at Government Code section 3500 et seq.

The Board finds the warning and dismissal letters to be free of prejudicial error and adopts
them as the decision of the Board itself, subject to the following discussion of the Union's
appeal.
DISCUSSION
The Union alleges that prior to 2002, firefighters who violated the City's policy on
alcohol and drug use for the first time were offered the opportunity to enter into a "last chance"
agreement. In 2002, a firefighter charged with a first offense relating to the use of alcohol was
terminated, without the opportunity to enter into a "last chance" agreement. The Union argues
that the City's refusal to offer a "last chance" agreement to this firefighter constituted an
unlawful unilateral change in violation of the MMBA.
In order to demonstrate an unlawful unilateral change, the Union must first establish a
change in policy or practice. Here, it is undisputed that the City's policies governing the
discipline of employees does not require, or even discuss, the use of "last chance" agreements.
The Union argues, however, that the City had an established practice of allowing first-time
offenders to enter into such agreements. In support, the Union asserts that in the last five years
only two firefighters have been charged with first-time violations of the alcohol and drug use
policy and that both were offered "last chance" agreements.
The City does not dispute the two examples cited by the Union. However, the City
argues that those two examples cannot be used to establish a past practice. Specifically, the
City notes that the settlement agreements in both those cases expressly stated that they were
not precedent setting. As an example, one settlement contained the following clause:
10. [Employee] and the Union acknowledges that this agreement
is a stand-alone agreement, meaning that the terms are unique to
this case and are to be interpreted by the Fire Commission
without reference to extraneous information not provided herein.
This Last Chance Agreement is not to be considered precedent
setting in any other grievance or litigation.
2

11. The Union agrees to the terms
of
this agreement and waives
any and all rights to challenge the terms and conditions
of
this
agreement. Specifically, the Union agrees that it shall make no
challenge that urinalysis is not a valid testing method and shall
make no challenge
...
under the Meyers-Milias-Brown Act
or
similar statutes that this last change agreement and the terms
contained herein are subject to a meet and confer requirement.
(Emphasis added.)
On appeal, the Union presents a strained argument that the non-precedent setting nature
of
the settlement agreement applies only to that individual employee. In other words, the
settlement agreement may not be used as precedent
if
the same employee is disciplined again.
However, the Union contends the agreements set a past practice for cases involving other
employees.
The Union's argument flies in the face
of
the plain meaning
of
a "last chance"
agreement. By definition, "last chance" agreements are only offered once.
	If
the same
employee violated the City's alcohol and drug policy later, they would not qualify for such an
agreement regardless
of
any precedent.
By its plain language, the two settlement agreements declare that they are "not to be
considered precedent setting in any other grievance or litigation." Accordingly, the Union may
not use the examples
of
the two employees to establish a past practice. Since the Union has
provided no other evidence
of
a past practice, it has failed to establish an unlawful unilateral
change. Accordingly, the charge must be dismissed.
ORDER
The unfair practice charge in Case No. SF-CE-53-M is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
3

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PUBLIC ElVIPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
December 10, 2002
Diane Sidd-Champion, Attorney
595 Market Street, Suite 2200
San Francisco, CA 94105
Re: 	San Francisco Firefighters Union, Local 798, Iaff, AFL-CIO v. City & County
of
San
Francisco
Unfair Practice Charge No. SF-CE-53-M; First Amended Charge
DISMISSAL LETTER
Dear Ms. Sidd-Champion:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 11, 2002. The San Francisco Firefighters Union, Local
798, Iaff, AFL-CIO alleges that the City & County
of
San Francisco violated the Meyers-
Milias-Brown Act (MMBA) 1
by unilaterally changing the discipline policy for alcohol and
drug use.
I indicated to you in my attached letter dated October 18, 2002, that the above-referenced
charge did not state a prima facie case. You were advised that,
if
there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to October 28, 2002, the charge would bedismissed.
On November 1, 2002, Charging Party filed a first amended charge. The amended charge
contends the use
of
"last chance agreements" constitute a past practice, and further contend the
union has a right to request bargaining over the use
of
last chance agreements. As these
arguments require an understanding
of
the parties' rights and obligations, I shall reiterate the
applicable facts below.
The City and Local 798 are parties to a collective bargaining agreement which expires on June
30, 2003. Article 52
of
the Agreement provides that the terms and conditions
of
employment
contained in the Agreement are subject to negotiation only upon mutual agreement
of
the
parties. The Agreement further states the following regarding disciplinary procedures:
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SE-CE-53-M
December 10, 2002
Page 2
48.8: Notwithstanding any other provision of this Agreement,
disciplinary or punitive actions described in Charter Section
A8.343 cannot be grieved or arbitrated.
Charter Section A8.343 provides in relevant part:
Members of the uniformed ranks of the fire or police department
guilty of any offense or violations of the rules and regulations of
their respective departments, shall be liable to be punished by
reprimand, or by fine not exceeding one month's salary, for any
offense, or by suspension for not to exceed three months, or by
dismissal, after trial and hearing by the commissioners of their
respective departments; provided however that the chief of each
respective department for disciplinary purposes may suspend
such member for a period not to exceed 10 days for a violation of
the rules and regulations of his department. Any such member
shall have the right to appeal such suspension to the fire
commission or to the police commission, as the case may be, and
have a trial and hearing on such suspension.
Finally, Department Rules and Regulations state the following regarding drug and alcohol use:
3912: (1) Members shall at no time bring into or keep in or about
the stations or premises of the Department any intoxicating
liquor, drug, substance or compound.
(4) When there is reasonable and probable cause to believe that a
member is under the influence of any intoxicating liquor, drug,
substance or compound while on duty, or while in uniform while
off duty, or that a member is in possession or using illegal drugs
at any time, the suspected member shall be required to submit to
physical examination or appropriate chemical tests administered
by the Department Physician, an officer from the Investigative
Services Bureau, or other qualified representative of the
department, or other authorized agency when ordered to do so by
the Chief of Department or Deputy Chief, Operations.
In the past five years, two other employees have been terminated for drug and/or alcohol use.
Both employees were offered "last chance agreements" which allowed for their continued
employment pursuant to the terms of the agreements. Each agreement contained language
regarding the precedential nature of last chance agreements. For example, the agreement for
Mr. Mulhair states:
10. Mulhair and the Union acknowledge that this agreement is a
stand-alone agreement, meaning that the terms are unique to this

Sf-CE-53-M
December 10, 2002
Page 3
case and are to be interpreted by the Fire Commission without
reference to extraneous information not provided herein. This
Last Chance Agreement is not to be considered precedent setting
in any other grievance or litigation.
11. The Union agrees to the terms of this agreement and waives
any and all rights to challenge the terms and conditions of this
agreement. Specifically, the Union agrees that it shall make no
challenge that urinalysis is not a valid testing method and shall
make no challenge under the Meyers-Milias-Brown Act or
similar statutes that this last change agreement and the terms
contained herein are subject to a meet and confer requirement.
Charging Party contends the above stated language applies only to each specific employee.
More specifically, Charging Party asserts the agreement's language means the agreement will
not be precedent setting for the employee in the future, but remains precedent setting for all
other employees. 	Such an argument is not however supported by the language of the last
chance agreements.
Herein, the Department's policy regarding drug and alcohol use and discipline are clearly
stated both in the Department's Rules and Regulations and in Section A8.343. Neither of those
provisions provides for "last chance agreements," and both provide the Department with the
right to terminate an employee for drug or alcohol use. While the Department may have
provided other employees with such agreements, Local 798 was well aware that those
agreements did not set a new disciplinary standard. Each agreement, signed by a Local 798
representative, stated unequivocally that "last chance agreements" were not within the scope of
meet and confer and were not precedential. Moreover, even assuming a past practice within
scope existed, an employer does not commit an unlawful unilateral change when it alters a past
practice, provided the change is consistent with the prior agreement. (Poway Unified School
District (1994) PERB Decision No. 1050.) As the Department's Rules and Regulations were
followed, and as Local 798 acknowledged that no precedent was established, the charge fails to
state a prima facie case.
Charging Party further asserts that the City must meet and confer over disciplinary procedures,
including last chance agreements. While disciplinary procedures are within the scope of
representation, the City and Local 798 are parties to a collective bargaining agreement which
states unequivocally that disciplinary matters pursuant to Charter Provision A8.343 are neither
grievable nor arbitrable. As such, it is clear Local 798 may not challenge the discipline of
employees when such discipline arises out of a rule or regulation violation, except in
accordance with Charter Provision A8.343. Moreover, as Article 52 of the Agreement states
terms and conditions of employment are negotiable only upon mutual agreement of the parties,
the City is not obligated to renegotiate its disciplinary procedures during the term of the
Agreement.
Right to Appeal

SF-CE-53-M
December 10, 2002
Page 4
(
Pursuant
to
PERB Regulations,2 you may obtain a review
of
this dismissal
of
the charge
by
filing an appeal
to
the Board itself within twenty (20) calendar days after service
of
this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business
(5
p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery,
as
shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 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
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

S1;<'-CE-53-M
December 10, 2002
Page 5
Extension of Time
C
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
Regional Attorney
Attachment
cc: Martin Gran

STATE OF CALIFORNIA
'
r	l 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1022
Fax: (510) 622-1027
October 18, 2002
Diane Sidd-Champion, Attorney
595 Market Street, Suite 2200
San Francisco, CA 94105
Re: 	San Francisco Firefighters Union, Local 798, Iaff, AFL-CIO v. City & County
of
San
Francisco
Unfair Practice Charge No. SF-CE-53-M
WARNING LETTER
Dear Ms. Sidd-Champion:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 11, 2002. The San Francisco Firefighters Union, Local
798, Iaff, AFL-CIO alleges that the City & County
of
San Francisco violated the Meyers-
Milias-Brown Act (MMBA)1
by
unilaterally changing the discipline policy for alcohol
and
drug use.
Investigation
of
the charge revealed the following. Local 798 is the exclusive bargaining
representative for the City's Firefighters. The City and Local 798 are parties to a collective
bargaining agreement which states the following regarding disciplinary procedures:
48.8: Notwithstanding any other provision
of
this Agreement,
disciplinary or punitive actions described in Charter Section
A8.343 cannot be grieved or arbitrated.
Charter Section A8.343 provides in relevant part:
Members
of
the uniformed ranks
of
the fire or police department
guilty
of
any offense or violations
of
the rules and regulations
of
their respective departments, shall be liable to be punished by
reprimand, or by fine not exceeding one month's salary, for any
offense, or by suspension for not to exceed three months, or by
dismissal, after trial and hearing by the commissioners
of
their
respective departments; provided however that the chief
of
each
respective department for disciplinary purposes may suspend
such member for a period not to exceed 10 days for a violation
of
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

· SF-CE-53-M
October 18, 2002
Page 2
(
the rules and regulations of his department. Any such member
shall have the right to appeal such suspension to the fire
commission or to the police commission, as the case may be, and
have a trial and hearing on such suspension.
Finally, Department Rules and Regulations state the following regarding drug and alcohol use:
3912: (1) Members shall at no time bring into or keep in or about
the stations or premises of the Department any intoxicating
liquor, drug, substance or compound.
(4) When there is reasonable and probable cause to believe that a
member is under the influence of any intoxicating liquor, drug,
substance or compound while on duty, or while in uniform while
off duty, or that a member is in possession or using illegal drugs
at any time, the suspected member shall be required to submit to
physical examination or appropriate chemical tests administered
by the Department Physician, an officer from the Investigative
Services Bureau, or other qualified representative of the
department, or other authorized agency when ordered to do so by
the Chief of Department or Deputy Chief, Operations.
On November 14, 2001, Firefighter Cynthia Childers was found unresponsive while on duty.
Upon medical examination, it was determined that Ms. Childers had a blood-alcohol level of
.45 - over ten times the Department's definition of intoxication. Ms. Childers was suspended
pursuant to Section A8.343 above, and participated in an administrative hearing on January 22,
and May 23, 2002. The Fire Chiefs recommendation was termination.
On August 19, 2002, Local 798 President John Hanley wrote a letter to Fire Chief Mario
Trevino regarding the Department's decision not to issue a "last chance agreement" to Ms.
Childers. Mr. Hanley asserted the "last chance agreements" were a negotiable issue and
requested to meet and confer over this issue. On August 29, 2002, Chief Trevino responded to
Mr. Hanley's letter. 	Chief Trevino stated that Section 3912 of the Rules and Regulations
permits the Department to terminate an employee for drug or alcohol use. Chief Trevino
continued by stating that although other employees were offered last chance agreements, the
rules governing such discipline do not require "last chance agreements."
On September 4, 2002, the Fire Commission conducted a hearing on Ms. Childers'
termination. The Commission voted to uphold the termination.
Charging Party asserts the Department's termination of Ms. Childers without a "last chance
agreement," alters the parties past practice, and as such constitutes a unilateral change.
Within the last five years, two other employees have been disciplined for alcohol or drug use
while on duty. Both employees received "last chance agreements" from the Department.

· SF-CE-53-M
October 18, 2002
Page 3
( (
Specifically, both employees were referred to rehabilitation and had their terminations stayed
pending completion of such programs. Each agreement stated the following regarding the "last
chance agreements:"
The Union agrees to the terms of this agreement and waives any
and all rights to challenge the terms and conditions of this
agreement. Specifically, the Union agrees that it shall make no
challenge that urinalysis is not a valid testing method and shall
make no challenge under the Meyers-Milias-Brown Act or
similar statutes that this last change agreement and the terms
contained herein are subject to a meet and confer requirement.
Based on the above stated facts, the charge as presently written fails to state a prima facie
violation of the MMBA, for the reasons provided below.
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),2 PERB utilizes either the "per se" or "totality of the conduct" test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.)3 Unilateral
changes are considered "per se" violations if certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. 	(Vernon Fire Fighters v. City
of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin County Employees Association v. City of
Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
Herein, the Department's policy regarding drug and alcohol use and discipline are clearly
stated both in the Department's Rules and Regulations and in Section A8.343. Neither of those
provisions call for "last chance agreements," and both provide the Department with the right to
terminate an employee for drug or alcohol use. While the Department may have provided
other employees with such agreements, Local 798 was well aware that those agreements did
not set a new disciplinary standard. Each agreement, signed by a Local 798 representative,
stated unequivocally that "last chance agreements" were not within the scope of meet and
confer. Moreover, even assuming a past practice within scope existed, an employer does not
commit an unlawful unilateral change when it alters a past practice, provided the change is
consistent with the prior agreement. (Poway Unified School District (1994) PERB Decision
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

· SF-CE-53-M
October 18, 2002
Page4
No. 1050.) As the Department's Rules and Regulations were followed, and as Local 798
acknowledged that no precedent was established, the charge fails to state a prima facie case.
For these reasons the charge, as presently written, does not state a prima facie case. Ifthere
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty ofperjury by the
charging party. The amended charge must have the case number written on the top right hand
comer ofthe charge form. The amended charge must be served on the respondent's
representative and the original proofofservice must be filed with PERB. IfI do not receive an
amended charge or withdrawal from you before October 28, 2002, I shall dismiss your charge.
Ifyou have any questions, please call me at the above telephone number.
Sincerely,
ki/;v /_kr - #Kristin L. Rosi
Regional Attorney
KLR