County of Ventura (PERB 1910M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
VENTURA COUNTY PROFESSIONAL PEACE
OFFICERS' ASSOCIATION,
Charging Party,
v.
COUNTY OF VENTURA,
Respondent.
Case No. LA-CE-23l-M
PERB Decision No. J1910-M
June 	2 1 , 	2007
Appearances: 	Silver, Hadden & Silver by Robert M. Wexler, Attorney, for Ventura County
Professional Peace Offcers' Association; Leroy Smith, Chief Assistant County Counsel, for
County of Ventura.
Before Duncan, Chairman; Shek and McKeag, Members.
DECISION
DUNCAN, Chairman: 	This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County of Ventura (County) to an administrative
law judge's (ALJ) proposed decision. 	The unfair practice charge alleged that the County
violated the Meyers-Milias-Brown Act (MMBA)l by implementing a mandatory overtime
program without giving the Ventura County Professional Peace Officers' Association
(VCPPOA) the opportunity to meet and confer and by refusing to process a VCPPOA-filed
grievance. 	VCPPOA alleged that this conduct constituted a violation of MMBA sections 3503
MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.

and 3506, and PERB Regulation 32603(a), (b) and (c) ? The Board has already considered and
denied a request for oral argument in this case on December 11, 2006.
The Board has reviewed the entire record in this matter, including but not limited to the
unfair practice charge, the County's position statement, the complaint, the answer to the
complaint, the transcripts and exhibits, the parties' post hearing briefs and reply briefs, the
proposed decision, the County's statement of exceptions and VCPPOA's response thereto. 	We
reverse the ALJ's proposed decision in part and affirm it in part, consistent with the discussion
below.
BACKGROUND
For the term of November 2002 to February 2006, VCPPOA and the County were
parties to a comprehensive memorandum of agreement (MOA). 	Article 10 of the MOA
governed work schedules. 	Section 1001 of the MOA states:
NORMAL 80-HOUR BIWEEKLY WORK SCHEDULE: 	Except
as may be otherwise provided, the 'normal' biweekly work
schedule of the County of Ventura shall be ten (10) working days
of eight (8) hours each. 	It is the duty of each Department/Agency
Head to arrange the work of his department/agency so that each
regular employee therein shall work no more than the normal
schedule, except that a Department/Agency head may require any
employee in his department/agency to temporarily perform
service in excess of the normal schedule when public necessity or
convenience so requires. The provisions of this Article are
intended to define the normal work schedule and do not guarantee
a minimum number of hours of work. 	The County retains its
right to relieve employees from duty because of lack of work or
for other legitimate reasons; however, this does not preclude
employees or VCPPOA from grieving the practical consequences
of that action.
Section i002A of the MOA states:
2pERB regulations are codified at California Code of Regulations, title 8,
section 3100l, et seq.
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A Department/Agency Head may, following communication with
the employees involved, assign employees of the
Department/Agency to any other schedule which aids the
Departments/Agency's ability to serve the public if such
schedule is not a violation of State or Federal law. 	The County
agrees to consult with VCPPOA prior to the employees being
placed on a modified workweek.
Section 1003 of the MOA states:
WORK SCHEDULE CHANGES: 	The County and VCPPOA
agree to meet and discuss problems with, or changes in, work
schedules on a Department/Agency basis during the term of this
Agreement upon request of either party.
Article 11 of the MOA separately addressed overtime. 	Section 1102 states:
POLICY-LIMITATION ON OVERTIME: 	It is the County's
policy to avoid the necessity of overtime whenever and wherever
possible. 	Overtime work may sometimes be necessary to meet
emergency situations, seasonal or peak workload requirements.
No employee shall work overtime unless authorized by his
Department/Agency Head. 	Procedures governing the
authorization of overtime shall be established in accordance with
the provisions herein.
Under Sections 1104 and 1105, employees were compensated for overtime in cash or time off
at time and a half.
Article 30 of the MOA established a grievance procedure. 	Section 3001 defined a
grievance in part as "a dispute by an employee or a group of employees." Article 10,
Section 1001, quoted above, stated in part that it did "not preclude employees or VCPPOA
from grieving the practical consequences of that action."
Some of the employees represented by VCPPOA are correction service officers (CSOs)
working at the County's chronically understaffed juvenile facilities. 	On April 15, 2005, the
County issued these employees a memo on the subject of mandatory overtime, stating in part:
We have made the difficult decision that on a temporary basis,
we need to implement a mandatory overtime policy effective
April 24, 2005. 	The majority of staff will feel little or no impact
W
	3

by this decision as they already work overtime, and we appreciate
their efforts. 	The amount of overtime per pay period will be
dictated by a number of factors, including existing staffing,
population, and amount of overtime worked by non-JF staff. 	It
is our hope that we will not need to ask staff to work in excess of
8 hours of overtime per pay period unless they desire to do so.
Individual needs will be considered as much as possible in the
assigning of OT shifts.
VCPPOA responded the same day with an e-mail message to the County stating in part:
The VCPPOA contract requires that changes in working
conditions, such as mandatory overtime, are subject to meet and
confer.
VCPPOA requested a meeting; on April 18, 2005, the County acknowledged that VCPPOA
was formally requesting to meet and confer on the mandatory overtime issue. 	On April 28,
2005, however, the County sent an e-mail message to VCPPOA stating in part:
While we appreciate your concerns on this matter we respectfully
submit that Management's right to require mandatory overtime is
not subject to meet and confer. 	The existing agreement provides
the authority to do so. 	(Emphasis in the original)]
The County cited Article 10, Section 1001, quoted above. The County still indicated its
wilingness to "discuss" the issue with VCPPOA, but for various reasons a meeting was not
immediately held.
On May 4, 2005, the County issued a second memo to employees, stating in part:
On April 15, 2005, a memorandum was circulated to you via
email announcing our plan to make mandatory overtime at the
Juvenile Facilities more equitable for all CSO staff beginning the
week of April 24th . 	We did not go forward with this plan at the
request of VCPPOA as the County Human Resources Department
needed sufficient time to review VCPPOA's request for a formal
'meet and confer' discussion. 	We have corresponded with
VCPPOA over the past couple of weeks regarding this pending
issue, and to date, no meeting has taken place. We continue to be
understaffed throughout the facility and arranging for shift
coverage has been a constant struggle.
4

In the Memorandum of Understanding (MOU) between VCPPOA
and the Probation Agency, the Director/Chief Probation Officer
has the authority to temporarily mandate that staff work in excess
of their normal work schedule 'when public necessity or
convenience so requires' (Article 10 Section 1001). During
periods of severe staffing shortages, we do not meet our Title 15
requirements and, as a result, we cannot provide a safe
environment for staff and minors. 	As such, we've made the
difficult decision to implement our mandatory overtime plan
beginning May 15 th .
The memo then set forth the "protocol for the JF mandatory overtime plan," including a
statement that "CSO staff are required to work eight (8) hours of overtime per pay period."
VCPPOA and the County finally met on May 11, 2005. The County said it was willing
to discuss the mandatory overtime issue, but not to meet and confer about the decision to
implement the policy. 	VCPPOA made a series of proposals, but the County made no
counterproposals, and no agreement was reached. 	On May 13, 2005 the County sent a third
memo to employees, stating in part:
We continue to be understaffed throughout the Juvenile Facilities
(JF). We have attempted to meet our obligations with the use of
employees who volunteer to work overtime but arranging for
necessary shift coverage has been a constant struggle. 	At times,
we have had to mandate that some staff stay over and work
beyond the end of their regular shift which is highly disruptive to
their personal lives. Despite all this, we have not been able to
meet our Title 15 requirements, and as a result, have not been
able to guarantee a safe environment for staff and minors. 	As
such, on Sunday, May 15 th , the JF Master Scheduler will begin a
more equitable method of assigning overtime.
The May 13 memo stated that "employees who do not volunteer to work an overtime shift at
the JF will be mandated to work overtime as deemed necessary by their supervisor." It also
expressed a "hope and expectation that the need to mandate overtime will be temporary."
On May 25, 2005, VCPPOA filed a written grievance with the County, alleging that the
mandatory overtime program violated the MOA. The grievance was fled in the name of
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"Diane Hubbard, President, VCPPOA, and its affected members of the bargaining unit." 	The
County responded on June 1, 2005, with a letter stating in part:
On May 25, 2005, we received by facsimile a purported
grievance in the name of Diane Hubbard, President, VCPPOA,
and its affected members of the bargaining unit. 	We are returning
the purported grievance to you because it does not qualify as a
grievance under Article 30 of the Memorandum of Agreement
between the County and VCPPOA.
Only individual employees or a group of individual employees
may file a grievance under the MOA (Section 3001). 	The MOA
does not provide for union grievances or class action grievances
filed on behalf of similarly situated employees.
VCPPOA filed its unfair practice charge with PERB on July 20, 2005. 	The County
discontinued the mandatory overtime program in December 2005.
DISCUSSION
VCPPOA's unfair practice charge alleged that the County: 	(1) violated the MOA by
unilaterally implementing a mandatory overtime program; and (2) failed to process a grievance
filed on behalf of VCPPOA.3
The ALJ applied the "per se" test to consider whether or not the County's change in
overtime policy was a unilateral change. 	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)
3The ALJ found that the County committed unfair labor practices in failing to meet and
confer before implementing the mandatory overtime program and in failing to process
VCPPOA's grievance. 	This decision focuses on the implementation of the mandatory
overtime program, as we agree with the analysis and discussion in the proposed decision as to
the grievance processing.
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161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB Decision No. 196
(Grant).) The ALJ found that work schedules and overtime are within the scope of
representation and were covered by Articles 10 and 11 of the parties' MOA.
The ALJ considered what the proposed decision termed the "most crucial language,"
found in Article 10, Section 1001, which states in part:
It is the duty of each Department/Agency Head to arrange the
work of his department/agency so that each regular employee
therein shall work no more than the normal schedule, except that a
Department/Agency head may require any employee in his
department/agency to temporarily perform service in excess of the
normal schedule when public necessity or convenience so
requires. 	(Emphasis added.)
The ALJ considered VCPPOA's argument that this language authorizes only individual
schedule changes, and the County's argument that the language allows the generalized
schedule changes which occurred in 2005. 	The proposed decision concluded that the plain
contractual language supported VCPPOA's argument. 	According to the ALJ's analysis,
because the MOA language is phrased in the singular, i.e. "the County may require 'any
employee' to work in excess of the normal schedule," the argument is more persuasive than the
County's which would stretch the language to mean "any or all employee~".
The ALJ further analyzed that the emphasized language is phrased as an exception to
the norm of an 80-hour biweekly work schedule and the County's argument would "allow the
exception to swallow the norm." 	Therefore, the ALJ found that the County did not simply
utilize an exception allowed by the MOA; it changed the norm established by the MOA.
The ALJ cited Article 11, Section 1102, in determining that it was "the County's policy
to avoid the necessity of overtime whenever and wherever possible," noting that overtime
might still be "necessary to meet emergency situations, seasonal or peak workload
requirements." According to the ALJ, "(t)his language would have little or no meaning if the
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County was to be free under Section 1001 to impose a months-long generalized mandatory
overtime program whenever 'public necessity or convenience so requires'."
Finally, the ALJ cited to Article 10, Section 1003, which he determined "clearly
established" what the County could and should have done if it had "problems with" or wanted
"changes in" normal work schedules "on a Department/Agency basis" during the term of the
MOA. 	The ALJ concluded that both parties had agreed to "meet and discuss" such matters on
request, presumably with a view toward reaching some new agreement. 	Under this language,
the ALJ found that neither party could be forced to agree, and neither party could abrogate the
existing MOA. 	Therefore, the ALJ concluded that the County's mandatory overtime program
unilaterally and unlawfully changed the policy established by Articles 10 and 11 of the MOA,
in violation of MMBA section 3505. 	The ALJ also concluded that this unilateral action
interfered with the right of employees to be represented by VCPPOA and denied VCPPOA its
right to represent them in violation of MMBA sections 3502 and 3503.
To prevail in a unilateral change case, the charging party must first establish that the
employer breached or altered the parties' written agreement or established past practice.
(Gran (Grant.) While the Board gives deference to an ALJ's factual findings which incorporate
determinations of witness credibility, the Board reviews the record of the cases before it
de novo, and has the duty and responsibility to take the actions based on that review which it
deems appropriate to take. 	(Santa Clara Unified School District (1979) PERB Decision
No. 104; Mt. Diablo Unified School District (1984) PERB Decision No. 373b; Lake Elsinore
School District (1987) PERB Decision No. 646.) In this instance, we reject the proposed
decision's determination that the County breached the parties' MOA based on the plain
meaning of the contract. 	Under our review of the record, the parties' agreement allowed the
8

County to mandate the temporary overtime program for a group of employees as was done
here.4
PERB may interpret contract language if doing so is necessary in deciding an unfair
practice charge case. 	(Grant; Victor Valley Joint Union High School District (1981) PERB
Decision No. 192; Inglewood Unified School District (1991) PERB Order No. Ad-222.) The
proposed decision states that because the MOA refers to the County's ability to require "any
employee" as opposed to "any or all employees" to temporarily perform overtime service, the
contract would only allow the County to require an individual employee to work overtime. 	We
disagree. 	The parties agreed in Section 1001 of the MOA that the County could temporarily
require overtime of "any employee" if public necessity or convenience so required. 	The term
"any employee" is inclusive of both any single employee or any group of employees under the
plain meaning of the contract.5 This finding is further bolstered by Section 1002A of the MOA
which states that:
A Department/Agency Head may, following communication with
the employees involved, assign employees of the
- - -
Department/Agency to any other schedule which aids the
Department's/Agency's ability to serve the public if such
schedule is not a violation of State or Federal law. 	The County
agrees to consult with VCPPOA prior to the employees being
placed on a modified workweek. 	(Emphasis added.)
The proposed decision did not discuss this portion of the MOA or its reference to the County's
ability to assign "employees" (plural) to "any other schedule which aids the
Department's/Agency's ability to serve the public."
Even if we accepted the ALJ's analysis, it should be noted that because the parties'
MOA includes binding arbitration, this charge could have been placed in abeyance as it is
largely a dispute of contract interpretation and therefore subject to the grievance procedure.
(PERB Reg. 32620(b)(6).)
5The ALJ did not discuss whether "public necessity or convenience" required the
overtime program, only the reference to "any employee."
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We find that the change was temporary, i.e., from May 2005 to December 2005, and
that the County's evidence demonstrated that public necessity or convenience required the
temporary overtime program. 	Therefore the County had the authority to implement mandatory
overtime department-wide as allowed by the plain meaning of the MOA. 	The County's sole
obligation would have been to "meet and discuss problems with, or changes in, work schedules
on a Department/Agency basis" as required by Section 1003 of the MOA. 	The County
complied with that obligation when it met with VCPPOA on May 11, 2005. The Board hereby
dismisses the complaint and underlying charge as to the issue of the County's implementation
of mandatory overtime for the department.
County Treatment of VCPPOA Filed Grievance
In the proposed decision, the ALJ found that when VCPPOA attempted to challenge the
mandatory overtime program by filing a grievance, the County refused to process the
grievance. 	The ALJ determined that the County's argument that VCPPOA did not have a right
to fie a grievance under Article 30, Section 3001 did not accord with the plain meaning of the
MOA. 	Section 3001 of the MOA defines a grievance, in part, as "a dispute by an employee or
group of employees."
The County argued that the reference to "group of employees" did not apply to
VCPPOA, because VCPPOA is an organization and not a group of employees.6 The ALJ was
not persuaded by the argument. 	He found that "(a)n organized group of employees is exactly
what VCPPOA is." We agree. 	Under the plain language of the MOA, the VCPPOA had the
right to fie a grievance on behalf of an individual employee or a group of likely situated
employees, as it did here. Furthermore, as asserted in the proposed decision "(t)his conclusion
In its exceptions, the County cited past practice relative to the treatment of VCPPOA-
filed grievances. However, the Board need not consider past practice with respect to the
County's handling of grievances when the MOA's language is clear and unambiguous.
10

is reinforced by the final language of Article 10, Section 1001, that 'this (article) does not
preclude employees or VCPPOA (emphasis added) from grieving the practical consequences
of (a particular action)'." The Board therefore adopts the portion of the proposed decision
which relates to the grievance procedure handling.
ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record in
this matter, the portion of the unfair practice charge and complaint alleging the County of
Ventura's (County) unilateral implementation of a mandatory overtime program is
DISMISSED.
As to the portions of the charge and complaint alleging the County refused to process
the grievance filed by the Ventura County Professional Peace Officers' Association
(VCPPOA), it is found that the County violated the Meyers-Milias-Brown Act (MMBA),
Government Code sections 3502, 3503 and 3505, and California Code of Regulations, title 8,
section 32603(a), (b), and (c), by unilaterally changing a negotiated policy, Article 30, of the
parties' memorandum of agreement which addresses grievance processing, without providing
VCPPOA with prior notice and an opportunity to bargain.
Pursuant to Government Code sections 3509(a) and 3541.5(c), it is hereby ORDERED
that the County and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with VCPPOA regarding a
change in policy affecting grievance processing, a matter within the scope of representation;
2. 	Refusing to process a VCPPOA-filed grievance.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations in the County 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 County, indicating that the County will comply with
the terms of this Order. 	Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced, or covered with any other material.
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. 	The County 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 VCPPOA.
Members Shek and McKeag 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 No. LA-CE-23i-M, Ventura County
Professional Peace Offcers' Association v. County of Ventura , in which all parties had the
right to participate, it has been found that the County of Ventura violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3502, 3503 and 3505, and California Code of
Regulations, title 8, section 32603(a), (b), and (c), by unilaterally changing a negotiated policy,
Article 30, of the parties' memorandum of agreement which addresses grievance processing,
without providing the Ventura County Professional Peace Officers' Association (VCPPOA)
with prior notice and an opportunity to bargain.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with VCPPOA regarding a change in
policy for processing grievances, a matter within the scope of representation.
2. 	Refusing to a VCPPOA-filed grievance.
Dated: 	COUNTY OF VENTURA
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.