County of Riverside (PERB 1715M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RIVERSIDE SHERIFF'S ASSOCIATION,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-8-M
PERB Decision No. 	1715-M
November 	30, 	2004
Appearances: Olins, Foerster & Hayes by Dennis J. Hayes and Douglas F. Olins, Attorneys,
for Riverside Sheriffs Association; Liebert Cassidy Whitmore by Nate Kowalski, Attorney,
for County of Riverside.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Riverside Sheriffs Association (RSA) to the
proposed decision of an administrative law judge (ALJ) (attached). The unfair practice charge
alleged that the County of Riverside (County) violated the Meyers-Milias-Brown Act
(MMBA)1 by surface bargaining and participating in impasse procedures in bad faith in
violation of MMBA sections 3503, 3505, 3506 and 3507.
The Board has reviewed the entire record in this matter, including the unfair practice
charge, the proposed decision of the ALJ, the parties' briefs, RSA' s exceptions and brief in
support of the exceptions, and the County's reply. The Board finds the proposed decision of
the ALJ to be free of prejudicial error and adopts it as the decision of the Board itself, subject
to the discussion below.
1MMBA is codified at Government Code section 3500, et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

RSA represents two units of employees in the County. These are the Public Safety (PS)
unit (probation officers and group counselors) and the Law Enforcement (LE) unit (deputy
sheriffs, correctional deputies, district attorney investigators and deputy coroners).
In April 2000, RSA replaced the Public Employees of Riverside County (PERC) (which
continued to represent four other units, at least at the time of this case) in representing the
PS unit. The memorandum of understanding (MOU) between the County and PERC
(including the PS unit at that time) expired by its terms on June 30, 2000.
Negotiations began on the PS unit MOU in July 2000. The parties were far apart and
made no progress in their July 20, 24, 26 and August 10 sessions. RSA had 31 proposals,
19 of which were economic. The County only proposed changes in the expired PERC MOU.
RSA thought they were all unfavorable.
The most significant proposals by RSA asked for the 3/50 retirement benefit,2 and three
wage increases over the 30-month MOU. The increases were to be 10 percent, 8 percent and
6 percent. RSA also took the position that the PS unit was 16 percent below comparable
jurisdictions but the County negotiator would not discuss comps.
The County had seven priority proposals (two were withdrawn and ate not included
here) which were:
1. 	A three year MOU.
2. 	A change in the language of "Fitness for Duty" reports and a return to work
certificate from a County approved doctor.
3. 	Deletion of a promotional procedure article.
4. 	An agreement to the PeopleSoft payroll system.
2In 2000, the Public Employees Retirement System (PERS) made it possible to offer
"safety" employees retirement benefits based on a formula of 3 percent at age 50 (3/50).
2

5. 	A change in the "disciplinary appeal procedure" article to eliminate
requirements of a seven-day notice and a pre-disciplinary hearing for a suspension of five days
or less.
On August 17, 2000, the County made its first economic offer. This was three .05 wage
increases over a three-year MOU, one bi-weekly wage increase of $4.80 and two 1 percent step
increases for employees at the top of their salary range. The County noted this was an
"opening" offer.
RSA then countered. (The counter changed the three wage increases down to 9.5, 7.5
and 5.5 percent.) In the next session, on August 23, 2000, the County came up to a 1 percent
increase in wages and increased the raise in the bi-weekly wage increase. The County did
indicate at that time that unless RSA showed more movement, especially on the 31 initial
proposals, the parties were fast approaching impasse.
RSA disagreed that they were at impasse. Five sessions were scheduled for September
2000 but none of those took place.
There was bickering back and forth after the County cancelled the sessions with a
phone call on August 31, 2000.
While the slow bargaining on the PS unit was going on in August, the County went
ahead and agreed with unions other than RSA to improve retirement benefits for the
miscellaneous County employees. But, to be effective that had to apply to deputy coroners as
well. (They were in the LE unit represented by RSA.)
The County then unilaterally amended its contract after advising RSA on August 22,
2000, that it was going to amend its contract with PERS to improve the retirement benefits of
all County miscellaneous employees, including the deputy coroners.
3

This action annoyed RSA because the County's action was a unilateral breach of the
same retirement section of the LE unit MOU that the County had declined to reopen in May
2000.
RSA filed in Superior Court for a Writ of Mandate blocking the County's action.
The County and RSA negotiators spoke further regarding cancellation of the September
bargaining sessions. 3
RSA indicated it had filed the lawsuit to get the County to reopen the 3/50 retirement
issue although the lawsuit did not ask that the LE unit MOU be reopened. It also did not
mention the PS unit at all but RSA did want to negotiate that for both units.
Then, on September 19, RSA asked the court to dismiss the lawsuit without prejudice.
This was done as a condition for resuming negotiations for the PS unit.
The parties, however, at that time appeared to be more interested in the LE unit. The
withdrawal of the lawsuit eventually led to negotiations for the LE unit.
On November 16, 2000, the parties signed an agreement.4
3The cancellation was apparently because of the lawsuit being filed.
4The agreement included the following:
1. 	Commencing approximately November 21, 2000, the parties will enter into
negotiations until no later than midnight, December 12, 2000, over the terms and conditions of
a successor MOU.
2. 	Any new MOU resulting will become effective January 1, 2001.
3. 	Both parties waive impasse resolution alternatives. In the event the parties
cannot agree there shall be no unilateral implementation.
4. 	Negotiations will be simultaneously with the LE unit. RSA agreed that if the
LE unit failed to ratify a tentative agreement resulting from these negotiations any provision
negotiated by the parties must be applicable to all employees within the same or similar
occupational group, shall be null and void.
5. 	If the parties do not reach agreement negotiations shall end. Any tentative
agreements shall be null and void but neither party gives up the right to submit proposals
regarding these in the future.
4

The County then contacted RSA on November 6, 2000, indicating the County was
ready to meet and stated it was ready to resume negotiations the week of November 13 through
17.
RSA and the County then began negotiations. They negotiated for the PS unit and the
LE unit separately. That November session was the seventh meeting of the parties in
negotiations but the first one since the end of August. The parties did apparently make
progress in these November sessions.
On November 27, 2000 (the eighth meeting), the negotiator for the County testified that
at that point, however, she felt they were still far apart and RSA had too many proposals on the
table. 	She believed the cost of the County's proposals was 9.92 percent while the cost of the
RSA position was 26.63 percent, not including the 3/50 costs which had not been calculated.
The negotiations continued past the December 12 deadline the parties had set for
themselves. On December 22, 2000, the parties signed tentative agreements for the LE unit.
Some of what was agreed to did impact the PS unit such as use of the PeopleSoft payroll
system. This was in a side letter that provided for automatic implementation for deputy
coroners of any PERS retirement.
In January 2001 they returned to negotiations for the PS unit. The County had
apparently calculated the cost of 3/50 and indicated it was 4.68 percent. The County had not
yet given that number to RSA. The County then amended its prior offer by deleting the first
salary increase and replacing it with the 3/50. The spokeswoman believed that increased the
County offer from 10.42 percent to 14.34 percent. RSA, on the other hand, believed this was a
regressive offer. RSA took the position that the agreement on acceptance of the PeopleSoft
system took care of the 3/50. The County indicated it could go no further, that was the last,
best offer and then declared impasse.
5

The January 10 (eleventh session) was the last. RSA's spokesperson then stated "we'll
go to impasse." (ALJ proposed dee. at p. 14.)
The parties met with a mediator in March and then again in May, 2001. These
meetings were not successful in resolving the issues.
DISCUSSION
RSA alleged that the County was in bad faith for surface bargaining and set forth three
indices. Those are:
1. 	The County cancelled five sessions previously scheduled for bargaining.
2. 	The County reneged on a tentative agreement regarding the 3/50 safety
retirement.
3. 	The County withdrew salary proposals thereby engaging in regressive
bargaining.
The ALJ did not believe the allegations were fully supported by the evidence. He held
that there was no bad faith by the County because in the totality of the County conduct there
was no surface bargaining. He did acknowledge that the cancellation of the September
bargaining sessions was not legitimate, there were instances of bad judgment and
miscommunication, but there was no evidence that the County intended to subvert the process
with obstructionist conduct.
The charge alleges that the County violated Section 3505 and PERB Regulation
32603(c)5 by engaging in bad faith or "surface" bargaining. Bargaining in good faith is a
"subjective attitude and requires a genuine desire to reach agreement." (Placentia Fire Fighters
v. City of Placentia (1976) 57 Cal.App.3d 9, 25 [92 LRRM 3373] (Placentia Fire Fighters).)
5PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
6

PERB has held it is the essence of surface bargaining that a party goes through the motions of
negotiations, but in fact is weaving otherwise unobjectionable conduct into an entangling
fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERB Decision
No. 80.)6 Where there is an accusation of surface bargaining, PERB will resolve the question
of good faith by analyzing the totality of the accused party's conduct. The Board weighs the
facts to determine whether the conduct at issue "indicates an intent to subvert the negotiating
process or is merely a legitimate position adamantly maintained." (Oakland Unified School
District (1982) PERB Decision No. 275 (Oakland); Placentia Fire Fighters.)
The indicia of surface bargaining are many. Entering negotiations with a "take-it-or-
leave-it" attitude evidences a failure of the duty to bargain because it amounts to merely going
through the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194
[57 LRRM 1491], enf. 418 F.2d 736 [72 LRRM 2530].) Recalcitrance in the scheduling of
meetings is evidence of manipulation to delay and obstruct a timely agreement. (Oakland
Unified School District (1983) PERB Decision No. 326.) Dilatory and evasive tactics
including canceling meetings or failing to prepare for meetings is evidence of bad faith. (Id.)
Conditioning agreement on economic matters upon prior agreement on non-economic subjects
is evidence of an unwillingness to engage in a give-and-take. (State of California (Department
of Personnel Administration) (1998) PERB Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include:
negotiator's lack of authority which delays and thwarts the bargaining process (Stockton
Unified School District (1980) PERB Decision No. 143 (Stockton)); insistence on ground rules
6When 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. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116
Cal.Rptr. 507].)
7

before negotiating substantive issues (San Ysidro School District ( 1980) PERB Decision
No. 134); and reneging on tentative agreements the parties already have made (Charter Oak
Unified School District (1991) PERB Decision No. 873; Stockton; Placerville Union School
District (1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may
lawfully maintain an adamant position on any issue. Adamant insistence on a bargaining
position is not necessarily refusal to bargain in good faith. (Placentia Fire Fighters; Oakland.)
"The obligation of the employer to bargain in good faith does not require the yielding of
positions fairly maintained." (NLRB v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229
[45 LRRM 2829, 2830].)
The examples of alleged bad faith conduct set forth by RSA (cited, supra) do not
establish bad faith. Just because negotiations are not productive at certain points of time, does
not mean they are in bad faith.
ORDER
The unfair practice charge in Case. No. LA-CE-8-M is hereby DISMISSED WITHOUT
LEA VE TO AMEND.
Members Whitehead and Neimajoined in this Decision.
8

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
RIVERSIDE SHERIFF'S ASSOCIATION,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-8-M
PROPOSED DECISION
(10/9/02)
Appearances: Olins, Foerster & Hayes by Dennis J. Hayes, Attorney, for Riverside Sheriffs
Association; Liebert Cassidy Whitmore by Nate Kowalski, Attorney, for County of Riverside.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, an employee organization alleges that a public agency bargained in bad
faith and then participated in impasse procedures in bad faith. The public agency denies any
unlawful conduct.
The Riverside Sheriffs Association (RSA) filed an unfair practice charge against the
County of Riverside (County) on August 6, 2001. The Office of the General Counsel of the
Public Employment Relations Board (PERB) issued a complaint against the County on
November 2, 2001. The County filed an answer on November 28, 2001, denying the
allegations against it.
PERB held an informal settlement conference on January 16, 2002, but the case was not
settled, so PERB held a formal hearing on May 9, 13 and 14, 2002. With the receipt of final
post-hearing briefs on August 5, 2002, the case was submitted for decision.

FINDINGS OF FACT
Introduction
The County is a public agency within the meaning of Government Code section 3501(c)
of the Meyers-Milias-Brown Act (MMBA) and PERB Regulation 32016(a). 1 RSA is an
employee organization within the meaning of MMBA section 3501(a), a recognized employee
organization within the meaning ofMMBA section 3501(b), and an exclusive representative
within the meaning of PERB Regulation 32016(b). County Resolution No. 99-379 contains
local rules within the meaning of PERB Regulation 32016(c), adopted by the County pursuant
to MMBA section 3507.
This case concerns bargaining between RSA and the County in 2000-01 over a new
Memorandum of Understanding (MOU) for the County's Public Safety (PS) unit of employees.
The bargaining began badly and ended badly. Despite eleven bargaining sessions and two
mediation sessions, RSA and the County never agreed on a new MOU. The question in this
case is whether the County actually bargained in bad faith, and then participated in impasse
procedures in bad faith.
Background to bargaining
RSA is the exclusive representative of two units of County employees: not only the
PS unit but also the Law Enforcement (LE) unit. RSA has represented the LE unit for several
years. This unit includes deputy sheriffs, correctional deputies, district attorney investigators
and deputy coroners, among others. In LE unit bargaining, Attorney Douglas Olins (Olins) has
1 MMBA is codified at Government Code section 3500 and following. PERB
regulations are codified at Cal. Code of Regs., tit. 8, sec. 31001 and following.
2

been chief spokesperson for RSA since 1993, and Employee Relations Manager Edward
McLean (McLean) has been chief spokesperson for the County since 1998.
In April 2000, RSA became the exclusive representative of the PS unit, which includes
probation officers and group counselors. RSA replaced the Public Employees of Riverside
County (PERC), which had previously represented five units of County employees (and
apparently continues to represent the other four units). There was no evidence at hearing that
the County was hostile to this change in representative. The MOU between the County and
PERC for the five units (including the PS unit) expired by its terms on June 30, 2000.
A variety of factors affected the bargaining between the County and RSA over a new
MOU for the PS unit. One factor was the County's investment in a new PeopleSoft payroll
system, which the County wanted to implement in 2001. The PeopleSoft system would have a
relatively minor impact on employees, but it was inconsistent with the previous PS unit MOU.
It was therefore a top County priority to get RSA to agree to the PeopleSoft system.
Another factor affecting bargaining was the passage in 2000 of Senate Bill 402
(SB 02).2 Effective January 1, 2001, SB 402 provided for binding interest arbitration of
bargaining impasses involving firefighters or law enforcement officers. SB 402 applied not
only to the County's LE unit but also to the probation officers in the County's PS unit. SB 402
did not apply, however, to the group counselors in the PS unit, who were not law enforcement
officers within the meaning of SB 402.
New opportunities to improve retirement benefits also affected bargaining. The
County's employees are covered by the Public Employee Retirement System (PERS, not to be
confused with PERB). PERS classifies local agency employees as either "safety" or
2 SB 402 is codified at Code of Civil Procedure section 1299 and following.
3

"miscellaneous." It requires local agencies like the County to offer their "safety" employees
the same benefits, regardless of bargaining unit, and their "miscellaneous" employees the same
benefits, regardless of bargaining unit. The County's PS unit employees have been treated as
"safety" employees, as have most LE unit employees. The deputy coroners in the LE unit,
however, are "miscellaneous" employees, like many County employees in units not
represented by RSA.
In 2000, PERS made it possible for the County and other local agencies to improve
retirement benefits for both "safety" and "miscellaneous" employees. Most significantly,
PERS made it possible to offer "safety" employees retirement benefits based on a formula of
3 percent at age 50 (3/50). As RSA spokesperson Olins testified, 3/50 became "the hottest
item for anyone who's in this business, and it's the number one goal of everyone who is
eligible for it." On March 3, 2000, the RSA president wrote County spokesperson McLean,
asking that the 1998-2001 LE unit MOU be reopened "for the limited purpose of discussing
retirement benefits." On May 2, 2000, however, McLean replied that "the County respectfully
declines your offer to reopen negotiations at this time."
Bargaining: the bad beginning
Bargaining over a new MOU for the PS unit began on July 20, 2000, with Olins as
chief spokesperson for RSA. McLean attended the first three bargaining sessions, but the
County's chief spokesperson was McLean's junior colleague, Debrah Freeman (Freeman). A
few years earlier, Freeman had worked for PERC, but there is no evidence that she was hostile
to RSA.
RSA and the County were far apart as bargaining began, and for the first four sessions
(July 20, 24 and 26 and August 10, 2000) they made no progress in closing the gap. RSA was
4

asking for a lot, and the County was offering nothing. In fact, the County's only proposals
were changes in the expired PERC MOU that RSA viewed as highly unfavorable.
RSA started out with 31 proposals, of which 19 were economic. Most significantly,
RSA sought the 3/50 retirement benefit and, over the course of a 30-month MOU, three wage
increases of 10 percent, 8 percent and 6 percent. RSA attempted to persuade the County that
compensation for the PS unit was some 16 percent below that of comparable jurisdictions, but
Freeman rejected discussion of comparable jurisdictions as unnecessary. (At the hearing,
Freeman acknowledged that the failure to agree on comparable jurisdictions ultimately hurt the
parties' ability to reach an overall agreement.)
At the fourth session, Freeman identified what she said were the County's seven
priority proposals:
1. 	A 3-year MOU.
2. 	A change in "fitness for duty" language to require that a return-to-work
certificate be from a physician "approved by the County."
3. 	The deletion of a "promotional procedure" article.
4. 	A change in retirement language to treat new employees as "miscellaneous"
employees, while current employees were still treated as "safety" employees. (Olins
questioned the legality of this proposal. It was later withdrawn.)
5. 	An agreement to the PeopleSoft payroll system.
6. 	The deletion of a "modified agency shop" article. (Freeman justified this
proposal on "philosophical" grounds, but philosophy had not prevented the County from
agreeing to agency shop language in the expired PERC MOU or the current LE unit MOU.
Freeman argued that there had been employee dissatisfaction with unionism as expressed in
5

decertification, but Olins pointed out that RSA had won the decertification election by an
overwhelming vote, ousting PERC. The proposal was later withdrawn.)
7. 	A change in a "disciplinary appeal procedure" article to eliminate requirements
of a 7-day notice and a pre-disciplinary hearing for a suspension of 5 days or less.
For the first four sessions, Freeman made no economic offer to RSA. 	She told RSA
that she had authority to make economic offers but had chosen not to do so. She said there
needed to be movement on non-economic issues before the County would "put money on the
table."
It seems possible that at least some of the County's seven "priority" proposals were in
fact "sticks" designed to get RSA to agree to PeopleSoft without the County giving up any
"carrots." If that was in fact Freeman's design, it did not work. Olins insisted that until the
County made an economic offer there was nothing to discuss. Freeman then relented, saying
she was not opposed to making an economic offer at the next session.
At the fifth session, on August 17, 2000, Freeman did indeed make the County's first
economic offer to RSA. Freeman offered three 0.5 percent wage increases over the course of a
3-year MOU. She also offered one bi-weekly wage increase of $4.80 and two 1 percent step
increases for employees at the top of their salary ranges. (RSA's initial proposal had included
3 additional steps in each salary range.) Freeman stressed that this was an "opening" offer.
RSA countered in part by reducing its three proposed wage increases by 0.5 percent each (to
9.5 percent, 7.5 percent and 5.5 percent.)
The sixth session, on August 23, 2000, began with a presentation about the County's
financial condition by an outside expert hired by RSA. The expert indicated that the County
was in a good financial position to afford the 3/50 retirement formula for "safety" employees.
6

It does not appear that the expert tried to estimate the actual cost to the County of
implementing 3/50. After the presentation, Olins asked if Freeman had new authority to agree
to 3/50. She said no, stating that the County was still serious about treating new employees as
"miscellaneous" employees.
At the same session, Freeman improved the County's offer by raising the first wage
increase from 0.5 percent to 1 percent and also by raising the bi-weekly wage increase. Before
doing so, Freeman said that unless the RSA showed more movement, especially on RSA's 31
initial proposals, the parties were rapidly approaching impasse. Olins attributed any lack of
movement to the County's "unacceptable" proposals on promotional procedure, retirement and
agency shop, as well as the lack of a "reasonable" economic proposal. Freeman said, "We may
be at impasse," but Olins disagreed.
Neither party actually declared impasse at that point. They had five bargaining sessions
scheduled for the month of September, the first of which was to feature the County's own
expert on the PeopleSoft payroll system. Those five sessions would not take place, however.
A strange interlude
Sometime in August 2000, the County agreed with unions other than RSA to improve
retirement benefits for "miscellaneous" County employees. In order to be effective, the
improvement had to apply to all County "miscellaneous" employees, including the deputy
coroners in the LE unit represented by RSA. On August 22, 2000, the County informed RSA
that it was acting to amend its contract with PERS to improve the retirement benefits of all
County "miscellaneous" employees, including the deputy coroners.
RSA was miffed, not because of the improvement as such, but because the County's
action represented a unilateral breach of the same retirement section of the LR unit MOU that
7

the County had declined to reopen in May 2000. On August 20, 2000, RSA filed in Superior
Court a petition for a writ of mandate blocking the County's action. A hearing on a temporary
restraining order was held on August 31, 2000.
Also on August 31, 2000, Olins received a phone message from Freeman, canceling all
five PS unit bargaining sessions scheduled in September 2000 (on September 6, 13, 14, 21 and
22). On September 8, 2000, Olins sent a Freeman a letter stating in part:
I attempted to return your call that day, but you told me on
Tuesday, September 5 th that you had been out of town until
September 5th . I was glad we finally caught up with each other
today to understand the basis for your cancellation of those
meetings. You informed me that the meetings were cancelled
based upon the lawsuit that RSA has filed against the County
regarding the Coroner Department employees receiving the single
highest year retirement plan. You told me that there would be no
point in meeting because retirement is such a big issue and you
couldn't "in good conscience continue to bargain" where that
issue is subject to litigation. As you expressed, you have your
"marching orders" from County Counsel and [County Human
Resources Director] Ron Komers.
While I very much appreciate your candor as to the basis
that you were forced to cancel these meetings, I did tell you that
it was RSA's desire to negotiate a successor MOU. However, I
agreed with you that if you had no authority to negotiate based
upon your superior's instructions, that it would be pointless to
reschedule negotiations until you have authority to negotiate on
all areas subject to bargaining. You informed me that you are
aware of a hearing on a motion scheduled in the court matter to
take place on or about October 6, 2000 and that perhaps the
issues relating to retirement would be resolved at that time. You
expressed that it would be "difficult to bargain with this matter
over your head" and therefore you felt it would be pointless until
after the hearing.
My client very much desires to bargain but also sees no
point in negotiating with the County unless and until you have
full authority to bargain on all issues, including retirement. We
will await further review on this matter by the County. We are
ready, willing and able to resume negotiations providing you are
vested with sufficient authority.
8

At the hearing, Freeman denied that she received the letter, to which she did not reply.
Freeman also denied that the letter quoted her accurately, but she confirmed the
substance of the letter. Specifically, she testified that her superior Ron Komers (Komers)
directed her to cancel the bargaining sessions. She described Komers's explanation as follows:
What he explained is that RSA had filed a lawsuit to compel the
county to reopen at three at 50, and that - in that the issue of
three percent at 50 currently being on the bargaining table at the
public safety table would frustrate our efforts at that table to
reach an agreement.
RS A's petition for a writ of mandate did not actually ask that the LE unit MOU be reopened,
nor did it mention the PS unit at all, but RSA certainly did hope to negotiate 3/50 for both
units.
On September 19, 2000, RSA asked the court to dismiss its petition without prejudice.
According to Olins, RSA took this action as a condition for resuming negotiations for the PS
unit. Rather strangely, however, negotiations for the PS unit did not resume in September or
October, nor were there even any conversations between Olins and Freeman.
It appears that RSA and the County were more focused on the LE unit. According to
Olins, the withdrawal of RSA's petition for a writ of mandate eventually led to negotiations for
the LE unit. On November 16, 2000, Komers and the RSA president signed the following
agreement:
1. Commencing approximately November 21, 2000, the
parties will enter into negotiations until no later than midnight,
December 12, 2000, over the terms and conditions of a successor
Memorandum of Understanding (MOU).
2. Any new MOU resulting from the negotiations
described in (1) above shall, if ratified by the RSA membership
and approved by the County's Board of Supervisors, become
effective January 1, 2001.
9

3. Both parties agree to waive impasse resolution
alternatives, i.e., mediation, fact-finding, etc. provided under
MMBA and/or Riverside County Employee Relations Rules. In
the event that the parties are unable to reach complete and final
agreement, there shall be no unilateral implementation.
4. Negotiations shall be conducted simultaneously with
the Law Enforcement Management Unit. RSA agrees that if the
LEMU membership fails to ratify a tentative agreement resulting
from these negotiations, any provision(s) negotiated by both
parties which, pursuant to State or federal law, must be applicable
to all employees within the same or similar occupational group,
shall become null and void and not applicable to the RSA
represented employees.
5. In the event the parties are unable to reach an
agreement within the period described under (1) above,
negotiations shall end. Any tentative agreements reached
between the parties on individual issues shall be null and void
provided, however, that neither party relinquishes any right to
submit proposals regarding the same or similar issues in the
future negotiations conducted pursuant to the provisions of
Article 1, Section 102 of the current MOU between the parties.
It appears there were 2 reasons the parties wanted to conclude negotiations by December 12,
2000: (1) Olins wanted to take a vacation, and (2) the County wanted to avoid the possibility
of binding interest arbitration under SB 402, as effective January 1, 2001. Although the
agreement mentions the Law Enforcement Management unit not represented by RSA, it does
not mention the PS unit represented by RSA.
Meanwhile, on November 6, 2000, Freeman sent Olins a letter stating in part:
As you may recall, the County of Riverside made a counter
proposal to the RSA Public Safety Unit during our last
negotiations session that occurred on August 23, 2000. Since that
time, the parties have not met, either formally or informally, to
attempt to resolve the issues in dispute and bring these
negotiations to a successful conclusion. Inasmuch as the prior
Memorandum of Understanding covering the wages, hours, and
other terms and conditions of employment for employees in the
unit expired at midnight on June 29, 2000, I believe it is
10

important for the parties to meet. Therefore, I wish to inform you
that the County is prepared to resume negotiations for the purpose
of receiving your counter-proposals commencing any day during
the week of November 13 through 17.
It appears that this was the first communication between Freeman and Olins since early
September 2000.
The two tables
Pursuant to Freeman's November 6 letter and the November 16 agreement, the parties
began simultaneous negotiations at two separate tables in November 2000. At the PS unit
table, Olins and Freeman continued to represent RSA and the County respectively. At the
LE unit table, Olins represented RSA and McLean represented the County, although Freeman
attended two sessions.
The parties met at the PS unit table on November 16, 2000. This was actually their
seventh session since late July, but their first since late August. The first question RSA raised
at this session was whether the County had a cost analysis for the 3/50 retirement benefit. The
County apparently did not. RSA noted that the PS unit's eligibility for 3/50 would depend on
what happened at the LE unit table.
The parties appeared to make some significant progress on other economic issues at this
session. RSA reduced its three proposed wage increases from 9.5 percent to 8.5 percent,
7.5 percent to 7.0 percent and 5.5 percent to 5.0 percent. RSA also withdrew two other
economic proposals. For its part, the County raised its proposed second and third wage
increases from 0.5 percent to 1.0 percent each. The County also raised its proposed bi-weekly
wage increase and its proposed step increases for employees at the top of their salary ranges.
Freeman represented that this increased the cost of the County's offer from $1 million to
$2 million, and she emphasized that it was still not the County's final offer.
11

The parties appeared to make some significant progress on non-economic issues as
well. The County offered to withdraw its proposals on retirement and agency shop in
exchange for an agreement on PeopleSoft. The parties also moved toward compromises on
promotional procedure and fitness for duty.
At the eighth session, on November 27, 2000, there was more progress. RSA reduced
· its first two proposed wage increases from 8.5 percent to 8 percent and 7 percent to
5.5 percent. RSA also withdrew four other economic proposals. The County then raised its
three proposed wage increases by 0.5 percent to 1.5 percent each. RSA responded by
withdrawing six more economic proposals. The parties reached tentative agreements on
PeopleSoft and promotional procedure, and the County withdrew its controversial proposals on
retirement and agency shop.
Freeman still felt the parties were far apart. She believed that the cost of the County's
proposals was.9.92 percent, while the cost of RSA's proposals was 26.63 percent, even without
including 3/50. (Apparently, the cost of 3/50 had still not been calculated.) Freeman said that
she was close to her economic "parameters" and that RSA still had too many items on the
table.
At the ninth session, on December 7, 2000, the County increased its third proposed
wage increase from 1.5 percent to 2.0 percent. RSA responded by withdrawing three more
economic proposals and by reducing its three proposed wage increases from 8 percent to
6.5 percent, 5.5 percent to 4 percent and 5 percent to 4 percent. Freeman said she was not
prepared to counter again without direction from her superiors. According to Olins, Freeman
said this frequently in negotiations and rarely if ever made two proposals at the same session.
12

Freeman also said at this session that "we could be affected by the other group
[discussing] 3 percent at 50." The County apparently still did not know what the cost of 3/50
might be.
In fact, most of the action in December 2000 was at the LE unit table, and that action
continued past the December 12 deadline the parties had set for themselves in their
November 16 agreement. Olins went on his vacation, but he remained involved in negotiations
by fax and phone, while McLean met at the table with the RSA president. On December 22,
2000, McLean and the RSA president signed a series of tentative agreements and a side letter
stating in part:
Subject to ratification of the pending tentative agreement between
the Law Enforcement Unit and the County of Riverside, the
County agrees that, in the event that other Safety bargaining units
(Public Safety and LEMU) have not reached overall agreement
by 7/1/01, the County shall implement its partial agreement of
3%@ 50 for all safety employees effective 7/1/01. The other
Safety units shall continue to bargain with the County until they
reach overall agreement.
In consideration of the above, RSA immediately withdraws its
objections to the county's implementation of the People-Soft
payroll system for both the Law Enforcement and Public Safety
Units. Furthermore, RSA agrees to the addition of the following
provisions to the applicable MOUs: 	...
The side letter, which was drafted by McLean, also included separate specific provisions for
the LE unit and the PS unit concerning payout for sick leave, vacation accrual and the
implementation of PeopleSoft.
The tentative agreements covered only the LE unit. Among other things those
agreements did the following:
1. 	Extended the LE unit MOU through December 31, 2004.
13

2. 	Provided for salary increases of 3 percent, 3 percent and 5 percent, beginning
December 26, 2002.
3. 	Provided for the automatic implementation for deputy coroners of any PERS
retirement enhancements negotiated for other "miscellaneous" employees.
The RSA president testified that in negotiating the side letter and tentative agreements "RSA
made a number of concessions in exchange for [3/50]." McLean testified that when he first
proposed a 3 percent at age 55 formula (on the way to 3/50) he reduced his salary proposal by
1.5 percent.
There was apparently no discussion at the LE unit table as to what effect the 3/50
agreement would have on issues at the PS unit table other than those specifically addressed in
the side letter. The RSA president testified he did not have authority at the LE unit table to
negotiate for the PS unit. Nonetheless, he did sign the side letter that included provisions
affecting the PS unit.
The successful conclusion of LE unit negotiations might have been the prelude to the
successful conclusion of PS unit negotiations. It was not.
To "impasse" and beyond
RSA and the County returned to the PS unit table for their tenth session on January 3,
2001. By then, the County had apparently calculated the cost of 3/50 for the PS unit as
4.68 percent, although the County did not yet share that calculation with RSA. Freeman
amended the County's previous offer by deleting the first 1.5 percent salary increase and
replacing it with 3/50. She believed this increased the cost of the County's offer from
10.42 percent to 14.34 percent.
14

Olins accused Freeman of making a regressive offer. In his view, RSA's agreement on
PeopleSoft "already took care of [3/50]." Freeman disagreed, asserting that the December 22
side letter "did not say that groups wouldn't pay for [3/50]." She further asserted that RSA
"would be one of the first groups in the state to achieve [3/50]." She said she had "no farther
to go on [her] guidelines" and without agreement would "have no choice but to make this my
last, best offer and declare impasse." Olins denied that the parties were at impasse and
emphasized that the side letter said 3/50 was "in consideration of' the PeopleSoft agreement.
The eleventh bargaining session, on January 10, 2001, turned out to be the last one.
Neither party made a new proposal. Olins stated that "it appears we will go to arbitration, ...
we'll go to impasse." Freeman formally declared impasse, with her January 3 offer as the
County's last, best and final offer. Olins did not specifically dispute that there was a legitimate
impasse, although he continued to refer to the January 3 proposal as regressive.
County Resolution No. 99-3 79 provides in part:
Section 15. IMPASSE PROCEDURE.
a. 	Impasse procedures shall not be requested by either party
until all attempts at reaching an agreement through meeting and
conferring have been unsuccessful.
1. The parties may mutually agree to request the
assistance of a mediator from the California State Conciliation
Service or any other mutually agree[ d] upon mediator.
RSA invoked these provisions. The parties met with a mediator on March 5, 2001, but neither
party made any new proposal.
On March 16, 2001, Olins sent Freeman a letter stating in part:
We have reviewed your last, best and final offer and find
it unacceptable. We have had one mediation session and were
unable to reach agreement at the session. In the hope of reaching
agreement, we hereby transmit our last, best and final offer. If
15

you believe that our last, best and final offer merits further
mediation please contact me. Otherwise, we will have to accept
your position that we are at impasse regarding the probation
officer classification.
The following is our last, best and final offer for the
probation officer classification:
1. 	Wages: January 1, 2001 through January 1, 2002 - 14.32%;
2. 	Insurance Benefits: Employees shall participate in the RSA
Benefits Trust to secure medical benefits (e.g. Health, Dental,
Vision and other insurances).
3. 	Insurance Benefits: Beginning January 1, 2001, the County
shall contribute $42.00 per biweekly pay period times the
number of employees into the RSA Benefits Trust.
Please contact me regarding whether this offer is acceptable and
whether you intend to make any counter-offers or feel that we are
at impasse. We look forward to your response.
In making a one-year offer covering only the probation offers, RSA was setting up the
possibility of seeking binding interest arbitration under SB 402.
Freeman felt this offer was regressive. In her view, it condensed RSA's previous
30-month proposal into a 12-month proposal and increased the cost to the County from
22.63 percent to over 24 percent. It was McLean and not Freeman, however, who responded
with a letter to Olins dated March 22, 2001, stating in part:
Upon reviewing your twelve month proposal (which would
actually end 18 months after the expiration of our prior
agreement) I find that you have, for some reason, failed to set
forth your final proposal for the Group Counselor classifications.
Therefore, before I can accurately assess and respond to your
proposal, I am requesting clarification as to what you[r] final
offer is regarding these classifications.
Olins replied with a letter dated March 29, 2001, stating in part:
In response to the specific question you raised regarding
clarification of RSA's final offer regarding group counselor
classifications, you are correct that RSA did not set forth a final
proposal for those classifications. The reason for that is that it is
16

our understanding that the group counselor classifications are not
eligible for interest arbitration pursuant to Code of Civil
Procedure§ 1299 et seq. RSA is ready, willing and able to
continue negotiations to an agreement on the group counselor
classifications. With regard to the other classifications, which are
subject to interest arbitration, we have made our last, best and
final offer and are awaiting your response so we may determine
whether or not it is appropriate to request interest arbitration.
RSA thus made explicit its contemplation of interest arbitration.
Although Freeman found RSA's March 16 offer regressive, the County received legal
advice that because of that offer the parties were no longer at impasse. On April 11, 2001,
McLean sent Olins a letter stating in part:
After reviewing the responses set forth in ... your March 16,
2001, and March 29, 2001, letters, the County does not believe
that we are at impasse at this time. Therefore, we wish to further
mediate the issues in dispute for both Group Counselors and
Deputy Probation Officers.
A skeptical Olins responded with a letter dated April 12, 2001, stating in part:
While we always are hopeful of reaching agreement, we
would be unwilling to again appear at mediation unless the
County is ready, willing and able to make an offer that is
materially better than its last offer. As a note, the County's last,
best and final offer of January 3, 2001, and repeated on January
10, 2001, was woefully inadequate and was regressive from prior
offers. If the County is prepared to make a materially better
offer, we would be willing to meet with you in mediation. The
last mediation session was wasteful of everyone's time. I await
your prompt response to this letter.
McLean replied with a letter dated April 16, 2001, stating in part:
This is to inform you that I have received and reviewed your
April 12, 2001, letter to me. As stated in my April 11, 2001,
correspondence to you, the County does not believe we are at
impasse at this time and are prepared to resume mediation for the
purpose of making offers and counter-offers over the issues in
dispute for the Public Safety Bargaining Unit. To that end, I
suggest that we contact Dave Harte [sic] of the State Mediation
17

and Conciliation Service to schedule a mediation session as soon
as possible.
The parties ultimately agreed to a second mediation session, to be held on May 15, 2001.
At the second mediation session, Olins soon had reason to think his skepticism had
been justified. Through the mediator, the County made a 12-month proposal for group
counselors that included only 3/50 (as already agreed upon) and an 18-month proposal for
probation officers that included 3/50 and a 1. 7 percent step increase for employees at the top of
their salary ranges. Olins regarded this as a "reduction offer." The only concession the
County had made was to reduce the term of its earlier 3-year proposals.
Freeman believed that the County's May 15 proposals were sufficient to put both group
counselors and probation officers above the compensation level of comparable jurisdictions.
RSA believed otherwise. Of course, the parties had never agreed on any comparable
jurisdictions, and Freeman had rejected any discussion of the subject. McLean testified that
the County went into the second mediation with "additional flexibility" and "would, in all
likelihood, have made [another] offer" if RSA had made one of its own. RSA made no new
offer, however.
Two days later, on May 17, 2001, Olins sent McLean a letter stating in part:
Pursuant to Code of Civil Procedure § 1299.4(a), the
parties have exhausted their mutual efforts to reach agreement
over matters within the scope of arbitration after impasse and the
mediator agreed to by the parties has been unable to effectuate
settlement. RSA hereby notifies you that it requests that the
differences between the parties regarding the probation
department employees be submitted to an arbitration panel.
Pursuant to CCP [section] 1299 .4(b ), within three days of receipt
of this written notification, please designate a person to serve as
your member of the arbitration panel.
18

Olins followed up on May 18, 2001, with a letter naming the RSA president as RSA's member
on the arbitration panel.
On May 22, 2001, McLean responded with a letter stating in part:
In response to your request, I wish to inform you that the Board
of Supervisors, as fortified by the decision of the Santa Cruz
Superior Court, believes that binding arbitration violates
provisions of the California State Constitution. Therefore, we
respectfully decline your request to submit the issues in dispute to
an arbitration panel.
RSA reacted by going to the Riverside County Superior Court and obtaining an order
compelling the County to arbitrate under SB 402. In support of the order, the RSA president
filed a declaration stating in part:
On May 15, 2001, the County submitted another oral last, best
and final offer; and upon RSA's rejection of that offer, the
County declared impasse again. At this point, negotiations
between RSA and the County actually had arrived at impasse.
At the PERB hearing, however, the RSA president testified that he did not believe the impasse
declared by the County was "legitimate."
The County in turn went to the Fourth District Court of Appeal and obtained a writ of
mandate compelling the superior court to set aside its order, on the ground that SB 402 was
unconstitutional. (County of Riverside v. Superior Court (2002) 97 Cal.App.4th 1103 [118
Cal.Rptr.2d 854].) On July 17, 2002, however, the California Supreme Court granted RSA's
petition for review of the court of appeal's decision.
ISSUES
1. 	Did the County bargain in bad faith?
2. 	Did the County participate in impasse procedures in bad faith?
19

CONCLUSIONS OF LAW
The PERB complaint alleges that the County violated MMBA section 3505 and PERB
Regulation 32603(c) by engaging in bad faith or "surface" bargaining. Bargaining in good
faith is a "subjective attitude and requires a genuine desire to reach agreement." (Placentia Fire
Fighters v. City of Placentia (1976) 57 Cal.App.3d 9, 25 [92 LRRM 3373] (Placentia Fire
Fighters).) PERB has held it is the essence of surface bargaining that a party goes through the
motions of negotiations, but in fact is weaving otherwise unobjectionable conduct into an
entangling fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERB
Decision No. 80.)3 Where there is an accusation of surface bargaining, PERB will resolve the
question of good faith by analyzing the totality of the accused party's conduct. The Board
weighs the facts to determine whether the conduct at issue "indicates an intent to subvert the
negotiating process or is merely a legitimate position adamantly maintained." (Oakland
Unified School District (1982) PERB Decision No. 275; Placentia Fire Fighters.)
The indicia of surface bargaining are many. Entering negotiations with a "take-it-or-
leave-it" attitude evidences a violation of the duty to bargain because it amounts to merely
going through the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194
[57 LRRM 1491], enf. 418 F.2d 736 [72 LRRM 2530].) Recalcitrance in the scheduling of
meetings is evidence of manipulation to delay and obstruct a timely agreement. (Oakland
Unified School District (1983) PERB Decision No. 326.) Dilatory and evasive tactics
including canceling meetings or failing to prepare for meetings is evidence of bad faith. 	(Ibid.)
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 [116 Cal.Rptr.
507].)
20

Conditioning agreement on economic matters upon prior agreement on non-economic subjects
is evidence of an unwillingness to engage in a give-and-take process. (State of California
(Department of Personnel Administration) (1998) PERB Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include: a
negotiator's lack of authority, which delays and thwarts the bargaining process (Stockton
Unified School District (1980) PERB Decision No. 143 ); insistence on ground rules before
negotiating substantive issues (San Ysidro School District (1980) PERB Decision No. 134);
and reneging on tentative agreements the parties have already made (Charter Oak Unified
School District (1991) PERB Decision No. 873; Stockton Unified School District, supra,
PERB Decision No. 143; Placerville Union School District (1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may
lawfully maintain an adamant position on any issue. Adamant insistence on a bargaining
position is not necessarily a refusal to bargain in good faith. (Placentia Fire Fighters; Oakland
Unified School District, supra, PERB Decision No. 275.) "The obligation of the employer to
bargain in good faith does not require the yielding of positions fairly maintained." (NLRB v.
Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229 [45 LRRM 2829, 2830].)
In the present case, the PERB complaint specifically alleges three indicia of surface
bargaining. The first allegation states:
(a): On August 31, 2000, Respondent [the County]
cancelled five previously scheduled bargaining session[s];
This allegation is fully supported by the evidence, and it seems to be a significant indication of
bad faith on the County's part. The evidence shows that the County canceled the five PS unit
sessions set for September 2000 because RSA had filed a lawsuit concerning retirement
benefits for employees in the separate LE unit. The County's action seems to have been based
21

on a fit of pique more than on any legitimate bargaining strategy. There is no apparent reason
why RSA and the County could not have continued to negotiate the many economic and non-
economic issues concerning the PS unit regardless of the lawsuit.
On the other hand, RSA seems to have acquiesced in the bargaining delay occasioned
by the County's conduct. In his letter to Freeman on September 8, 2000, Olins stated that RSA
"sees no point in negotiating with the County unless and until you have full authority to
bargain on all issues, including retirement." More significantly, even after acting to dismiss its
lawsuit on September 19, 2000, RSA apparently took no action to restart the PS unit
negotiations. It was Freeman's letter to RSA on November 6, 2000, that apparently restarted
those negotiations. In any case, the County's cancelation of the September bargaining sessions
is not enough by itself to establish surface bargaining in the totality of the County's conduct.
The second and third allegations of indicia of surface bargaining state:
(b): On January 3, 2001, Respondent reneged on a
tentative agreement regarding the "3%@ 50" safety retirement;
(c): 	On January 3, 2001, Respondent engaged in
regressive bargaining by withdrawing its salary proposals.
These allegations are not fully supported by the evidence. They really refer to the same
conduct: the County's amendment of its previous offer (of December 7, 2000) by deleting the
first 1.5 percent salary increase and replacing it with 3/50. This did not amount to
"withdrawing its salary proposals," as the County was still offering two salary increases of
1.5 percent and 2 percent, plus a bi-weekly salary increase (of $15.00), plus two step increases
of 2.71 percent each for employees at the top of their salary ranges. Nor did the County's
conduct truly amount to "regressive bargaining," given that the overall cost of the package
increased (by the County's calculation) from 10.42 percent to 14.34 percent.
22

Furthermore, it cannot be said that the County "reneged on a tentative agreement"
concerning 3/50. There is no evidence that the County failed to ratify or implement the
December 22 side letter that provided 3/50, noris there any evidence that the County sought
additional consideration for ratifying or implementing the side letter.
RSA argues that because the side letter specified the PeopleSoft agreement as "[i]n
consideration ot'' 3/50, the County could not take any account of the cost of 3/50 in its further
bargaining on economic issues. This seems a na'ive (or disingenuous) view of the side letter. It
is true that the PeopleSoft agreement was a priority for the County, but it was relatively
costless for RSA, while 3/50 would cost the County some 4.68 percent (apparently in excess of
$1 million). It is unrealistic to suppose that the County would ignore this cost in further
economic bargaining.
According to its president, RSA "made a number of concessions" concerning the
LE unit in exchange for 3/50. The PeopleSoft agreement was only one of those concessions.
Presumably, RSA did not accept less for the LE unit in order to benefit the PS unit. RSA
should therefore reasonably have expected that it might have to accept less for the PS unit as
well.
It is obvious that there was a failure of communication between RSA and the County
(and perhaps within RSA and the County) as to the relationship between the simultaneous
negotiations at the two tables in November and December 2000. I believe both parties bear
some responsibility for this failure, but I do not conclude that either party acted in bad faith.
In its post-hearing brief, RSA argues that there were two other indicia of surface
bargaining. RSA argues in part that the County insisted on resolving non-economic issues
before negotiating economic issues. It is true that for the first four sessions Freeman sought
23

movement on non-economic issues before making an economic offer. It is also true that this
strategy was unproductive, but I do not conclude that it was intended to be so. In fact, when
the strategy proved unproductive, Freeman made an economic offer at the fifth session and
improved it at the sixth session, even without apparent movement on non-economic issues.
RSA also argues that Freeman had insufficient authority to bargain, as evidenced in
part by her failures to make two proposals at the same session and her statements that she was
not prepared to do so without direction from her superiors. RSA cites no cases, however, for
the proposition that the ability to make multiple proposals without consultation is essential to
bargaining authority. Freeman certainly did not just listen to RSA and say "no" to its
proposals. On the contrary, from the fifth through the ninth sessions she made and improved
economic proposals, while withdrawing or compromising non-economic proposals, and her
actions apparently had the full authority of the County.
I conclude that the totality of the County's conduct does not evidence surface
bargaining. 	I acknowledge that the County's cancelation of the September meetings was
illegitimate, and that there were other instances of bad judgment and miscommunication. The
bargaining process began badly and ended badly, without a new MOU.4 I am unpersuaded,
however, that the County actually intended to subvert that process with obstructionist conduct.
The PERB complaint also alleges that the County violated MMBA sections 3505 and
3505.2 and PERB Regulation 32603(e) by participating in impasse procedures in bad faith. It
appears from RSA's post-hearing brief, however, that RSA may have abandoned this
allegation. RSA specifically argues that there was "no legitimate impasse," in which case
I note, however, that RSA still got 3/50, which its spokesperson described as "the
hottest item for anyone who's in this business, ... the number one goal of everyone who is
eligible for it."
24

there was presumably no legal obligation for either party to participate in impasse procedures
at all. I do not find it necessary, however, to decide whether there was a "legitimate" impasse
in order to resolve the issues framed by the complaint.
The PERB complaint specifically alleges three indicia of post-impasse bad faith:
(a): 	On March 5, 2001, Respondent refused to make any
proposals or modify its offers;
(b): On May 15, 2001, Respondent withdrew its salary
proposals;
(c): On May 22, 2001, Respondent refused to participate
in interest arbitration pursuant to Code of Civil Procedure section
1299.4.
In context, however, these indicia do not establish bad faith.
It is true that at the first mediation session, on March 5, 2001, the County made no new
proposals, but neither did RSA. The County had made the most recent proposal, which the
County believed increased its cost from 10.42 percent to 14.34 percent. I do not attribute the
County's failure to improve that proposal to bad faith.
It is at least somewhat misleading to say that at the second mediation session (on
May 15, 2001) the County "withdrew its salary proposals." The County did still offer a
2.71 percent step increase for probation officers at the top of their salary range. Moreover, the
salary proposals that the County "withdrew" had been part of a three-year proposal, while the
County's May 15 proposal was for 12-18 months, in response to RSA's own 12-month
proposal of March 16, 2001. Rather than an attempt to thwart agreement, the County's May 15
proposal can be viewed as an attempt (however inadequate) to reach a quick short-term
agreement and to leave the bigger issues (including more significant salary increases) for later
negotiations.
25

It is true that in its May 22 letter the County declined to submit the issues in dispute to
arbitration under SB 402. The County's position was based, however, on an apparently good
faith and non-frivolous doubt about the constitutionality of SB 402. That issue will be decided
by the California Supreme Court, not by PERB. Whatever the outcome, I see no reason why
PERB should view negatively the County's decision to contest the issue.5
Although the totality of the conduct of the County (and of RSA) in and after mediation
was certainly unproductive, I conclude that it has not been shown to have been in bad faith.
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions oflaw, and the entire record in
this case, it is ordered that the complaint and the underlying unfair practice charge in Case No.
LA-CE-8-M, Riverside Sheriffs Association v. County of Riverside, are hereby dismissed.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
I express no opinion as to whether PERB would have the authority under the MMBA
to evaluate a party's compliance with SB 402 in any case.
26

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.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of California Code of Regulations, title 8,
section 32135(d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
27
THOMAS"J. 	ALN
Administrative 	Law Judge