County of Sonoma (PERB 1962M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 707,
Charging Party,
V.
COUNTY OF SONOMA,
Respondent.
Case No. SF-CE-293-M
PERB Decision No. 	1962-M
June
17,
2008
Appearance: Renne Sloan Holtzman Sakai, LLP, by Jeffrey Sloan and Timothy
G.
Yeung,
Attorneys, for County
of
Sonoma.
Before McKeag, Wesley, and Dowdin Calvillo, Members.
DECISION
DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the County
of
Sonoma (County) to an
administrative law judge's (ALJ) proposed decision. 	In the proposed decision, the ALJ held
that the County violated the Meyers-Milias-Brown Act (MMBA) 1 sections 3503, 3505 and
3506 and PERB Regulation section 32603(a), (b) and (c), 2 by implementing a new policy with
respect to involuntarily placing employees on unpaid leave status in cases
of
disputed ability to
work under disability accommodations without prior notice and affording the Service
Employees International Union, Local 707 (SEIU), an opportunity to meet and confer over the
decision to implement the policy and the effects
of
the policy.
1MMBA is codified at Government Code section 3 500 et seq. 	Unless otherwise
indicated, all statutory references are to the Government Code.
2PERB regulations are codified at California Code of Regulations, title 8, section 3I001
et seq.

We have reviewed the entire record in this case, including, but not limited to the
complaint, the County's answer, the hearing transcript, the parties' post-hearing briefs, the
ALJ's proposed decision, and the County's statement
of
exceptions and supporting brief.3
Based upon this review, we hereby reverse the proposed decision and find SEIU failed to
establish that the County implemented a new policy with respect to involuntarily placing
employees on unpaid leave without pay.
PROCEDURAL HISTORY
On May 31, 2005, SEIU filed an unfair practice charge with PERB against the County.
On September 26, 2005, the Office
of
General Counsel issued a complaint against the County
alleging that it did not have a policy for treating employees who were no longer able to
perform the essential functions
of
their job and that in February 2005, the County instead
created such a policy by placing M. J.4 on leave without pay (L WOP) status after determining
that she "was unable to perform the essential functions
of
her position despite reasonable
accommodation." As a result
of
this action, SEIU alleges, inter alia, that the County
unilaterally implemented a new policy within the scope
of
representation without noticing,
meeting, and conferring with the employee organization.
An informal conference was conducted on February 6, 2006, without resolution and on
May 23, 2006, a formal hearing was conducted before the ALJ. Post-hearing briefs were
submitted on July 27, 2006; however, on December 12, 2006, the County requested that the
evidentiary record be re-opened for the receipt
of
newly discovered evidence: the
November 9, 2006, Sonoma County Employees' Retirement Board (SCERB) approval
of
M. J.'s application for service-connected disability retirement retroactive to January 26, 2005.
3SEIU did not file a response to the County's exceptions.
4The initials of the public employee will be used to protect the confidentiality of her
medical information.
2

SEIU opposed the admission
of
the new evidence. The ALJ re-opened the record on
December 15, 2006, and the County filed its supplemental briefing on December 26, 2006,
when the matter was again resubmitted for decision.
The ALJ issued his proposed decision on January 17, 2007. The County requested and
was granted a 20-day extension to file exceptions which were filed on March
5,
2007.
FINDINGS OF FACT
SEIU
is
the exclusive recognized employee organization for six County bargaining
units, including the Clerical Non-Supervisory bargaining unit. 	Since February 2000, Paul
Carroll (Carroll) has been the Field Representative employed by SEIU to represent these
County employees. M.
J.
was an Account Clerk III working for the County's Auditor
Controller Office and was a member
of
the Clerical Non-Supervisory unit.
The County is a public agency within the meaning
of
MMBA section 350l(c). Rodney
Dole (Dole) is the County Auditor-Controller and Linda Jenkins (Jenkins) is the County's
Human Resources Manager for Equal Employment Opportunity (EEO) and disability issues.
Jenkins is responsible for conducting EEO investigations
of
discrimination complaints filed by
County employees with the County.
The SCERB was formed and operates pursuant to the County Employees Retirement
Law (CERL)
of
1937. (Gov. Code sec. 31450 et seq.) Under CERL,
if
a county employee is
"permanently incapacitated" as a result
of
an injury arising out of, and substantially
contributed by, his employment, he shall receive a "service-connected" disability retirement
and receive one-half of his final compensation.5 (Gov. Code secs. 31720 and 31727.4.) Either
the injured employee or county employer may apply for disability retirement on behalf
of
the
5
If the injury does not arise out of or in the course of employment, the employee may
receive a "non-service-connected" disability retirement. (Gov. Code sec. 31725.8.)
3

employee. 	The County as the employer may not separate an employee who
is
otherwise
eligible6 to be disability retired, unless the employee waives that right, rather the employer
"shall" apply for the disability retirement
of
that employee,
if
he is "believed to be disabled."
(Gov. Code sec. 31721(a).) CERL does not require the employer to send the employee to a
fitness for duty examination or medical evaluation prior to applying for disability retirement on
behalf
of
the employee. (Gov. Code sec. 31723.) When an employer applies for disability
retirement on behalf
of
an employee, the employee is not entitled to paid leave pending the
determination
of
the local retirement board. However, the employee may seek to apply for
interim benefits while awaiting the determination. 	(Rodarte
v.
Orange County Fire Authority
(2002)
101
Cal.App.4th 19 [123 Cal.Rptr.2d 475]; and Gov. Code sec. 31725.7.)
The County also has a Civil Service Commission (Commission) which promulgated
rules for formal separation actions to be taken against employees (including for medical
reasons) as well as actions the County can take when an employee returns to work from an
illness or disability. 	Specifically, Commission Rule 12.3 entitled "Return to Work after Illness
or Disability" provides:
When an employee is absent due to illness or disability, the
appointing authority may require that the employee pass a
medical examination by a County Physician prior to his/her
return to work. Failure to pass such examination shall result,
after expiration of the employee's accumulated sick leave, in
further leave with pay; leave without pay [LWOP]; and/or
separation of the employee, as may be authorized in accordance
with these rules. [7l
(Emphasis added.)
6The eligibility of
M. J. for disability retirement is not in question.
7Notwithstanding Commission Rule 12.3, an employer has the statutory authority under
the Fair Employment and Housing Act (Gov. Code sec. 12900 et seq.) to require any medical
examinations or inquiries which it can demonstrate are job-related and consistent with business
necessity. 	(Gov. Code sec. 12940(£)(2).)
4

Commission Rule 10.3A.(5) entitled, "Dismissal
of
Permanent Employee" allows the
County to dismiss an employee for "reasonable cause" including for "incapacity due to mental
or physical disability to the extent permissible by law." Rule 10.5A. dictates that the notice
of
this proposed action provides that the employee shall be given the "opportunity to respond to
the department head before the action is taken," and Rule 10.5B.(2) provides that the order
of
the action shall "advise the employee
of
his/her appeal rights" to the Commission. The
Commission Rules also provide for procedural rules governing hearings before the
Commission or a Commission hearing officer.
The County uses a written procedure entitled, "Sonoma County Disability Guidelines,"
outlining a seven-step process when dealing with issues
of
reasonable accommodation: 	(1) the
identification
of
the disability; (2) the employer contacting the County's EEO office; (3) the
employer contacting the employee's physician to determine what the disability is and what
temporary or permanent working restrictions the employee has; (4) the employee and employer
engaging in an interactive resolution process resulting in an agreement or employer decision;
(5) the employee filing a complaint
of
the employer's decision to the County EEO office
if
the
employee disagrees with the employer's decision; (6) the investigation
of
the complaint by the
County EEO office; and (7) the employee's appeal
of
the County's EEO's investigation
recommendation to the Commission for final review
if
the employee is still dissatisfied. 8
On April 15, 1998, the California Second District, Court
of
Appeal rendered its
decision in Bostean v. Los Angeles School Dist. (1998) 63 Cal.App.4th 95 [73 Cal.Rptr.2d
523] (Bostean), which decided that when an employee obtains a property right in his public
8SEIU and the County have a current Memorandum
of
Understanding (MOU)
governing the time period of July 23, 2002 through June 30, 2008. The MOU specifically
states that an employee alleging unlawful discrimination "may" utilize the County's EEO
Discrimination Procedure, but may not use the MOU's grievance procedure.
5

employment, the employee must be given the constitutionally mandated procedural due
process rights in continued employment of: (1) written notice
of
the charges; and (2) an
opportunity to respond before the employee is effectively placed on an involuntary illness
LWOP. 9
On November 12, 1998, the Commission requested that Chief Deputy County Counsel,
Rosemary Morgan (Morgan) discuss the impact
of
the Bostean decision with the Commission
at its November 19, 1998 meeting. All County employee organizations were notified
of
this
request. 	On November 19, 1998, Morgan submitted a memo to the Commission citing that the
due process requirements set forth in Coleman v. Department
of
Personnel Administration
(1991) 52 Cal.3d 1102 [278 Cal.Rptr. 346] (Coleman), should satisfy due process requirements
for an involuntary illness LWOP case. 10
Morgan did not recommend any rule change for the
Commission setting forth the procedures to be followed in fulfilling the due process
requirements as:
the determination
of
what process is due depends so much on the
particular facts
of
each case. 	It is doubtful that a rule could be
9 Prior to Bostean, the Sixth District Court
of
Appeal held differently than Bostean. In
Sienkiewicz v. County of Santa Cruz (1987) 195 Cal.App.3d 134 [240 Cal.Rptr. 451]
(Sienkiewicz), the appellate court decided that a county employee being placed on indefinite
medical LWOP, without an opportunity to respond prior to the effective date of the leave, did
not violate due process if the employee was given a right to respond during the leave or within
a reasonable time thereafter because the employee controlled the ability to return to work. 	The
appellate court also did not require that a medical evaluation
of
the employee be obtained prior
to imposing the leave. 	(Sienkiewicz, at p. 141.)
10In Coleman, the California Supreme Court decided that the level of due process
afforded to an employee who was separated for being absent without leave for five or more
consecutive working days was that the employer must give the employee written notice
of
the
contemplated action, the facts supporting the action and an opportunity to present his version
of the facts in an informal hearing before a neutral factfinder. 	(Coleman, at pp. 1122 and
1123.) Commission Rule section 10.5 A. designates the neutral factfinder to be "department
head" for the most serious property right deprivations of dismissal, demotion and suspension.
6

crafted that would cover all
of
these instances. Thus, I believe
this issue should be determined on a case-by-case basis with the
advice
of
counsel.
(Emphasis added).
SEIU representative Tom Drumm was present at that meeting. One
of
the employee
organizations expressed its concern about the due process afforded to an employee on a return
to work issue. The Commission Chairperson stated that it "was unnecessary and premature to
give guidance and each situation should
be
dealt with as it arises." (Emphasis added.) This
statement was reflected in the Commission minutes. The evidentiary record is silent as to
whether SEIU (or anyone else for that matter) protested this announced case-by-case basis
approach to the determination
of
the level
of
due process accorded to an employee placed on
involuntary LWOP status.
Unilateral Change Allegation
M.
J.
was employed with the County from 1988 to January 26, 2005. Before
April 2002, when M. J. was injured on the job, she worked as an Account Clerk III with the
Auditor-Controller's Office. As a result
of
this injury, she had difficulties with repetitive
motion, pushing and pulling, sitting and standing for long periods
of
time and lifting objects
above her chest. Her normal duties included editing and compiling spreadsheets on various
accounts
of
other departments within the County.
M. J. went on medical leave from June 18, 2002 to July 31, 2003, and received workers
compensation benefits. Accommodations were made by the County when she returned to
work. 	She went on leave again in December 2003 for three weeks and returned to work with
additional accommodations. 	On November 15, 2004, M. J. returned to work from medical
leave a third time with work restrictions from her physician. 	Upon M. J.' s return to work as
before, the County modified M. J.'s work schedule, duties and work station. M. J. performed
her job but complained about pain and would occasionally be absent from work or go home
7

early due to the pain. The last incidents recorded that
M.
J. went home early for pain was
January 4 and
5,
2005. On January 10, 2005, M. J.
provided the County with new restrictions
of
a modified work schedule from her physician.
On January 12, 2005, Dole sent a letter to M.
J.
addressing her ability to perform the
essential functions
of
her position which specifically stated:
Based upon the permanent restrictions
of
your doctor, you were
returned to work with accommodations November 15, 2004.
During the past two months, we have attempted to assign tasks
that met the restrictions. We have provided you with a variety
of
assignments and attempted to allow you to control the pacing
of
each element
of
each assignment. We have purchased equipment
and tools to assist you: 	. . . We have had an ergonomic
consultant review your work area three times
as
we made
adjustments to be sure that it was set up properly. 	You have been
provided the opportunity to work a reduced schedule, beginning
with 4 hours per day, with the intent
of
increasing your hours to
full time over the course
of
2 - 4 weeks. In addition, management
has made themselves available to you on a daily basis to work
with you in an effort to make your return a success.
Despite the above, you have encountered problems in the daily
work. 	. . . You have numerous times requested to leave early or
not come in due to issues
of
pain and 'flare-ups' in your arms.
When you have tried to increase your hours to 6-hour days, you
have encountered pain and returned to 4-hour days again. You
have been unable to demonstrate the ability to perform the
necessary activities in a manner that allows you to consistently
complete all elements
of
each task.
Not only is your medical condition not improving, but you have
continued to tell us about pain you are experiencing. 	Your treater
had hoped by now you would be able to increase the work hours
to 8 hours/day, but that has not happened. In fact, a recent note
(dated January 10, 2005) included new temporary restrictions that
need to be in place until your scheduled medical appointment on
February 24, 2005. We are a small department, and our tasks
require a significant amount of document handling and data entry.
Based on the above, it appears that we are unable to provide
accommodation that would enable you to perform the essential
functions of Account Clerk III (copy attached). Your final day of
work will be Friday, January 14, 2005. If you believe that there
is an accommodation that would enable you to perform these
8

functions, please contact me or Linda Jenkins, the County's
Equal Employment Opportunity Manager, at ... A copy of the
County's Disability Guidelines is attached.
After reviewing the vacancies in our department, there do not
appear to be any positions for which you are medically qualified,
and have the requisite educational and/or work experience.
Please contact me if you would like to discuss these vacant
positions.
You may be entitled to a disability retirement. To find out more
information regarding retirement, you can contact ....
Please contact me if you have any questions about the options
available to you. I would like to hear from tiou by
January 26, 2005 regarding your intentions. 111
(Emphasis added.)
On January 14, 2005, M. J. and SEIU representative Carroll met with Dole in his office.
Carroll contended that in order for Dole to remove M. J. from pay status, Dole either needed to
send M. J. to a medical examination conducted by a County physician or take a formal
separation action against her pursuant to the Commission Rules. 	Carroll's concern was that
Dole's January 12, 2005 letter did not contain any language concerning M. J.'s appeal rights as
a disciplinary action did. 	At the end of the January 14 meeting, Dole, M. J. and Carroll agreed
to meet again on January 19 to provide M. J. and Carroll with another opportunity to respond.
Dole followed up that meeting with a letter to M. J. on January 14. In this letter, Dole
clarified that the purpose of the January 12 letter was to give M. J. "notice and an opportunity
to respond" to the allegations that she could not perform the essential functions of her position.
Dole also clarified that although the letter stated that January 14 would be M. J. 's last day of
work that she would still be a county employee, but rather carried on L WOP status. Dole
11 Most of the letter is set forth in order to address the issue of whether the
January 12, 2005 letter fell within the dynamic status quo contended by the County.
9

explained that he was placing M.
J.
on paid administrative leave from January
14
through 19, 2005.
M. J.
wrote Dole a letter on January 18, 2005 protesting some
of
the contents
of
Dole's
January
12
letter and contesting some
of
the actions taken by Dole. 	She ended her letter by
requesting that she be allowed to return to work.
On January 19, 2005, M.J., Carroll, Dole, M. J.'s supervisor and another
Auditor-Controller employee met as agreed. M.
J.
's January
18
letter was discussed as well
as
proposed accommodations. 	On January 21, 2005, Dole sent a letter to M. J. which reflected
what occurred during that meeting, M. J.'s proposed accommodations and why the office could
not make them. 	The letter stated that the County was unable to provide M. J.
with effective
and reasonable accommodations that would enable her to perform her essential job functions.
The letter closed by listing several
of
the options available to M. J. as listed in the January 12
letter and attached a copy
of
the County's Disability Guidelines. Dole notified M.
J.
that her
last day
of
paid administrative leave would end on January 26, 2005, at which time she would
be placed on LWOP.
In a letter to Dole dated January 24, 2005, Carroll contended that the County failed in
its obligation to participate in the interactive process to determine
if
M. J. could be
accommodated. Carroll requested that the County continue the interactive process. In Dole's
January 26, 2005, response to M. J.
and Carroll, he informed them that a meeting had been set
for February 2, 2005, to further discuss the interactive process and
if
that meeting did not
produce an agreement, M. J. could file a discrimination complaint with the County EEO office
under the County's Disability Guidelines. Dole stated that effective January 27, 2005, M. J.
would be on L WOP status. At the time that M. J.
was placed on L WOP, she chose not to

expend her remaining leave balances. M.J. did not exercise her right to file a discrimination
complaint with the County EEO office.
In Carroll's January 28, 2005 letter to the County's Employer/Employee Relations
Manager, Joanne Sidwell (Sidwell), he stated that based on his recent telephone conversation
with Deputy County Counsel,
Jeff
Berk (Berk), who had been advising Dole on the matter,
12
Carroll requested the County meet and confer over "the lack
of
written policy or guidance
when removing a worker from pay status without benefit
of
a Skelly [hearing][I 3l and Civil
Service Administrative remedies." 	Sidwell responded to the letter on February 4, 2005, stating
that she did not believe the County had an obligation to meet and confer as M.J. had notice that
the department was going to place her on L WOP status and an opportunity to respond prior to
the LWOP status becoming effective. Additionally, Sidwell replied that
if
M.J. disagreed with
the County about the conclusion
of
the interactive process, she could file a discrimination
complaint with the County EEO office and the conclusion(s)
of
the EEO office can be
appealed to the Commission.
Carroll testified that, for the cases that SEIU was aware of, the County always sent
employees out for a medical examination by a County physician when wanting to remove them
from paid status. Jenkins explained that the County does not always refer an employee to a
medical examination, but primarily relied on medical restrictions provided by the employee's
treating physician. 	She explained that the treating physician understands the employee's
medical condition more than a County physician. The decision as to whether the County could
accommodate the restrictions (temporary or permanent) is often made based on the treating
12 In a later letter from Berk dated April 25, 2005, Berk admitted that he was unaware of
a written County policy that was used to remove M. J. from paid status, however, Berk argued
that the Bostean decision applied to M. J.
13
Skelly v. State Personnel Board (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14] (Skelly).
11

physician's medical evaluation. Jenkins explained that placing an employee on LWOP, instead
of taking a formal separation action, gave the employee time off and an opportunity to recover
and return to work.
Jenkins further testified that if an employee exhausts all leave balances, the County
does not have a mechanism to pay the employee and the County would have no choice, but to
place the employee on L WOP status. Jenkins listed four employees in a similar situation as
that of M. J. 	The first employee exhausted all of her leave before she was placed on
involuntarily LWOP. 	When she returned to work, she resigned after 45 minutes. The second
employee was off work due to a workers compensation injury and had been on L WOP status
for two years. This particular employee tried to return to work, but was unsuccessful because
one of the doctors examining him prohibited him from doing so. A third employee, who had
deteriorating vision as well as another physical ailment, was placed on involuntary L WOP
status, and he did not contest the County's action. 	The fourth employee was also placed on
involuntary LWOP and did not contest the action.
M. J. eventually appealed the level of due process afforded to her by the County
Auditor-Controller's Office to the Commission who granted her a hearing. 	On
February 16, 2006, the Commission denied M. J.'s appeal and found that the level of due
process afforded to M. J. comported with the legal principles of due process.
On August 1, 2006, M.J. filed an application for service-connected disability retirement
with the SCERB. 	On November 9, 2006, the SCERB granted M. J. 's application retroactively
effective January 26, 2005; the day after the last day that M. J. received regular compensation.
ALJ'S PROPOSED DECISION
The ALJ found that the County adopted a new policy when it placed M. J. on
involuntary LWOP status due to her inability to perform the essential functions of her position
12

even after several accommodations were made. In making such a finding, the ALJ rejected the
County's assertion that it was not creating a new practice, but was rather following its previous
practice
of
making decisions on these cases, including the due process accorded, on a "case-by
case" basis. The ALJ reasoned that a case-by-case past practice led to a "blanket sanction"
of
the County's decision to place an employee on involuntary LWOP status once he/she ran out
of
leave regardless
of
whether the interactive discussions had been completed. The ALJ also
held that the County "failed to prove it had a clearly enunciated, reasonably ascertainable
policy" regarding employees in
M.
J.' s situation and the County expressly refused to adopt a
policy addressing the procedural due process concerns set forth in Bostean.
RESPONDENT'S EXCEPTIONS
In its exceptions the County contended, among other things, that the ALJ erred in not
crediting the County's "case-by-case basis" approach as its past practice and status quo
regarding it's determination
of
the level
of
due process to be accorded for an employee being
placed on involuntary L WOP status. Additionally, the County contends that it was SEIU, not
the County, who had the burden
of
proof to establish the change in the existing practice, which
included determining the status quo from the regular and consistent patterns
of
changes in the
conditions
of
employment (dynamic status quo) as set forth in Pajaro Valley Unified School
District (1978) PERB Decision No.
51
(Pajaro Valley).
DISCUSSION
SEIU carries the burden
of
proof as to all elements set forth in a unilateral change
allegation. 	(Riverside Sheriffs Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285,
1291 [ 131 Cal.Rptr.2d 454] (Riverside).) To establish that the employer implemented a
unilateral change in terms and conditions of employment within the scope of representation,
SEIU must establish by a preponderance of the evidence:
13

(1) the employer breached or altered the parties written
agreement, or own established past practice; (2) such action was
taken without giving the exclusive representative notice or an
opportunity to bargain over the change; (3) the change is not
merely an isolated breach
of
the contract, but amounts to a
change
of
policy, i.e., the change has a generalized effect or
continuing impact on bargaining unit members' terms and
conditions
of
employment; and (4) the change
of
policy concerns
a matter within scope
of
representation.
(California State Employees' Assn. v. Public Employment
Relations Bd. (1996)
51
Cal.App.4th 923,
93
5 [59 Cal.Rptr.2d
488].)
SEIU Failed to Establish a Breach in Written Agreement or Past Practice
SEIU's contention that the County created a new policy/practice was twofold: 	(1) that
the County did not send M. J. to a medical examination pursuant to Commission Rule 12.3 as it
did for other employees
of
whom the union was aware; and (2) the lack
of
due process setting
forth the steps the County took when placing M.
J.
on a involuntary L WOP status which could
ultimately allow an appeal before the Commission. Based on our review
of
the record, we find
that SEIU failed to satisfy this first element for the test
of
a unilateral change in terms and
conditions
of
employment for the following reasons.
1.
	Medical Examination
SEIU is in error regarding the applicability
of
Commission Rule 12.3, which would
have required her to be examined by a County physician prior to being placed on involuntary
LWOP status. 	Based on the amount
of
time that elapsed from M. J.'s return to work in
November 15, 2004, and Dole's January 12, 2005 letter, the County could not have required
M. J. to pass a medical examination pursuant to Commission Rule 12.3 as this medical
examination was to be ordered "prior to" M. J.'s return to work on November 15, 2004 and not
afterwards. M. J.'s subsequent absences were only occasional and she had already returned to
work by the time the January 12, 2005 letter was sent.
14

Additionally, once the County determined that M. J.
was unable to perform the essential
functions
of
her position as stated in its January
12
and 21, 2005 letters, its course
of
action
was dictated by CERL rather than Commission Rule or past practice. One
of
the options set
forth in these letters was that M. J. may be eligible for disability retirement. However, as M. J.
was a vested employee with an occupational injury,
if
the County believed that no further
accommodation could be made for M. J., she was not able to perform the essential functions
of
her job, and she was not qualified to work in another position, the County was mandated by
statute (Gov. Code sec. 3172l(a)) to apply for disability retirement on her behalf. Once having
applied for disability retirement, the County was not required to pay her while awaiting
SC ERB' s determination.
	If
the application for M. J. was successful, her disability retirement
date would be retroactive to the last day she received compensation (Gov. Code sec. 31724).
While the County did not follow the dictates
of
the statute, such failure cannot be considered a
violation
of
MMBA as it is not a breach
of
the parties "written agreement or own established
past practice."
Lastly, SEIU failed to establish that it was the County's past practice to send its
employees to a medical examination conducted by a County physician before placing them on
involuntary L WOP status. In order to establish a past practice, SEIU has the burden to show
that the practice is: (1) unequivocal, (2) clearly enunciated and acted upon, and (3) readily
ascertainable over a reasonable period
of
time as a fixed and established practice by both
parties. (Riverside, at p. 1291.) Carroll testified generally that every case that the union was
aware of, the County sent the employee to a medical examination by a County physician. On
the contrary, Jenkins testified that primarily the County relied upon the treating physicians'
opinion and gave some specific examples, although not identical to M. J., to support her
testimony. 	Additionally, Jenkins' testimony was supported by the County's Disability
15

Guidelines which focuses on the employer's interactions with the employee's treating
physician and not a medical examination performed by a County physician. 	Based upon the
totality
of
this record, SEIU has not carried its burden
of
proof
to establish that Carroll's
testimony should be credited over Jenkins' testimony.
2. Due Process
The County, in its exceptions, contends that the change in the status quo must
be
evaluated from a dynamic status quo: 	PERB "must take into account the regular and consistent
patterns
of
changes in the conditions
of
employment." (Pajaro Valley, at p. 6.) In the
most
recent PERB dynamic status quo decision, Regents
of
the University
of
California (2004)
PERB Decision No. 1689-H (Regents), the Board in resolving a dynamic status quo defense
cited to Regents
of
the University
of
California (1983) PERB Decision No. 356-H,
at pp. 16-1 7 which provided:
Where the employee has traditionally exercised a large measure
of
discretion in making such changes, it is impossible for the
exclusive representative to know whether or not there has been a
substantial departure from past practice, and therefore the
exclusive representative may properly insist that the employer
negotiate regarding such changes.
(Regents, at p. 30; emphasis added.)
Eventually in Regents, PERB decided that the University unilaterally changed the status quo
when it deviated from a "benchmark methodology" in determining its annual health benefits
contribution. 	In M. J.
's
instance, it cannot be established that the County deviated from its
benchmark methodology in determining what level
of
due process she should be accorded.
It is undisputed that on November 19, 1998, the Commission Chairperson announced at
a Commission meeting in the presence
of
a SEIU representative that it would take a case-by
case basis approach in its application
of
Bostean to placing employees on involuntary L WOP
16

status.
14
SEID did not object to such a declaration. However, the application
of
a case-by-case
basis approach did not
mean
that the County was going to apply unfettered discretion
to
each
case,
but
rather was going to follow the parameters
of
due process set forth in Bostean:
(1) written notice
of
the charges, and (2) an opportunity to respond before the employee is
effectively placed
on
an involuntary illness L WOP.
Additionally, the County Counsel advised the Commission to apply the due process
protections found in the Coleman decision. These protections were clearly applied to M. J. as
she was given written notice
of
the contemplated action, the facts supporting the action and an
opportunity to present her version
of
the facts before the department head, as set forth
in
Commission Rule 10.5 A. who met with M. J. and her representative on at least two occasions.
M.
J.
appealed the level
of
due process afforded to her by the County Auditor-Controller's
Office to the Commission, which found that the process utilized by the County did comport
with due process. Finally, M.
J.
was notified
of
her options, including her right to appeal (to
file a discrimination complaint regarding the County's decision not to accommodate her further
to the County EEO office, which ultimately culminates in a hearing before the Commission).
Therefore, it cannot be found that the County unilaterally created a new policy when it issued
M. J. her January 12 and 21, 2005 letters notifying her that she would be placed on involuntary
L WOP status.
14 A case-by-case basis approach has been recognized as the status quo in Riverside,
where the employer determined whether an employee on Labor Code section 4850 leave
should receive a step pay increase.
17

ORDER
The unfair practice charge and complaint in Case No. SF-CE-293-M are hereby
DISMISSED WITHOUT LEA VE TO AMEND.
Members McKeag and Wesley joined in this Decision.
18