City of Alhambra (PERB 2036M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALHAMBRA FIREFIGHTERS ASSOCIATION,
LOCAL 1578,
Charging Party,
V.
CITY OF ALHAMBRA,
Respondent.
Case No. LA-CE-262-M
PERB Decision No. 2036-M
June 9, 2009
Appearances: Arnold Furr, President, for Alhambra Firefighters Association, Local 1578;
Burke, Williams & Sorensen by Donald C. Potter, Attorney, for City of Alhambra.
Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION
NEUWALD, Member: This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by the Alhambra Firefighters Association, Local 1578
(Association) to an administrative law judge's (ALJ) proposed decision. The charge alleged
that the City of Alhambra (City) violated the Meyers-Milias-Brown Act (MMBA) 1 by
unilaterally changing its policy regarding firefighter duties and driver's license requirements
without giving the Association prior notice or opportunity to bargain. The Association alleged
that this conduct constituted a violation of MMBA sections 3503, 3505 and 3506, thereby
committing an unfair practice under Section 3509, subdivision (b ).
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALHAMBRA FIREFIGHTERS ASSOCIATION,
LOCAL 1578,
Charging Party, 	Case No. LA-CE-262-M
V . 	PERB Decision No. 2036-M
CITY OF ALHAMBRA, 	June 9, 2009
Respondent.
Appearances: Arnold Furr, President, for Alhambra Firefighters Association, Local 1578;
Burke, Williams & Sorensen by Donald C. Potter, Attorney, for City of Alhambra.
Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION
NEUWALD, Member: This case comes before the Public Employment Relations
Board (PERB or Board) on appeal by the Alhambra Firefighters Association, Local 1578
(Association) to an administrative law judge's (ALJ) proposed decision. The charge alleged
that the City of Alhambra (City) violated the Meyers-Milias-Brown Act (MMBA) by
unilaterally changing its policy regarding firefighter duties and driver's license requirements
without giving the Association prior notice or opportunity to bargain. The Association alleged
that this conduct constituted a violation of MMBA sections 3503, 3505 and 3506, thereby
committing an unfair practice under Section 3509, subdivision (b).
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all references are to the Government Code.

Having reviewed the proposed decision in light of the exceptions and the entire record
in this case, the Board affirms the proposed decision in part and reverses in part for the reasons
discussed below.
FACTUAL BACKGROUND
We find the ALJ's factual determinations to be correct and adopt them herein as our
own:
The City is a public agency within the meaning of MMBA
section 350l(c). The Association is a recognized employee
organization within the meaning of section 3501 (b ), representing
a unit of firefighters, engineers, firefighter/paramedics, and fire
captains in the City's Fire Department (Department).[2]
Department vehicles are driven by the engineers, who are
required to hold California Class B noncommercial driver's
licenses. In addition, it is undisputed that at least since 1992, all
firefighters have been trained in, have obtained, and have
maintained Class B licenses, and from time to time have been
called upon to serve as relief drivers. However, the Association
contends that the Department's official policy had historically
required its firefighters to possess only a regular Class C license,
that in March 2005 it changed this policy to require them to
maintain Class B licenses and to act as relief drivers, and that the
Association did not learn of this change in policy until March
2006.[3]
The record contains several documents which relate to driver's
license and relief driver requirements. They include firefighter
job descriptions which the City issued some years ago, upon
approval by the City Council. The job descriptions were not
formally distributed to the Association, but the Fire Chief was
responsible for notifying the affected employees, i.e., the
firefighters. The job descriptions read in part:
The Department is headed by the Fire Chief. It maintains five fire stations operating
on a 24/7 basis, each managed by a Battalion Chief. Unit employees are assigned to one of the
five stations and work rotating eight-hour shifts.
The record contains several documents which relate to driver's
license and relief driver requirements. They include firefighter
job descriptions which the City issued some years ago, upon
approval by the City Council. The job descriptions were not
formally distributed to the Association, but the Fire Chief was
responsible for notifying the affected employees, i.e., the
firefighters. The job descriptions read in part:
The Department is headed by the Fire Chief. It maintains five fire stations operating
on a 24/7 basis, each managed by a Battalion Chief. Unit employees are assigned to one of the
five stations and work rotating eight-hour shifts.
3 The Association's contention regarding March 2006 is discussed in detail below.
2
Having reviewed the proposed decision in light of the exceptions and the entire record
in this case, the Board affirms the proposed decision in part and reverses in part for the reasons
discussed below.
FACTUAL BACKGROUND
We find the ALJ's factual determinations to be correct and adopt them herein as our
own:
The City is a public agency within the meaning of MMBA
section 3501(c). The Association is a recognized employee
organization within the meaning of section 3501(b), representing
a unit of firefighters, engineers, firefighter/paramedics, and fire
captains in the City's Fire Department (Department).[ ]
Department vehicles are driven by the engineers, who are
required to hold California Class B noncommercial driver's
licenses. In addition, it is undisputed that at least since 1992, all
firefighters have been trained in, have obtained, and have
maintained Class B licenses, and from time to time have been
called upon to serve as relief drivers. However, the Association
contends that the Department's official policy had historically
required its firefighters to possess only a regular Class C license,
that in March 2005 it changed this policy to require them to
maintain Class B licenses and to act as relief drivers, and that the
Association did not learn of this change in policy until March
2006.[']
The Association's contention regarding March 2006 is discussed in detail below.
2

[February 1978] ... Examples Of Duties ... may act as
relief driver or engineer ... License Required A valid,
appropriate California Driver's License.
[January 1986] ... Examples Of Duties ... may act as
relief driver or engineer ... License Required A valid,
appropriate California Driver's License.[4]	[ ]
(Emphases in original.)
Effective January 1, 1989, California's new licensing and testing
requirements for drivers of commercial vehicles took effect.
Thereafter, in July 1992, the Department added section 404.08 to
its Manual of Administrative Policies (Manual), entitled
"Driver's License Requirements," which reads in part:
requirements for drivers of commercial vehicles took effect.
Thereafter, in July 1992, the Department added section 404.08 to
its Manual of Administrative Policies (Manual), entitled
"Driver's License Requirements," which reads in part:
POLICY: All fire suppression personnel shall possess a
minimum requirement of [a] noncommercial Class B license
restricted to operating fire fighting equipment only.
A cover memo was sent to all Department personnel instructing
them to add section 404.08 to the Manual. Copies of the Manual
are kept in the City's personnel office, the Fire Chief's office, and
at each fire station. The Association also maintains a copy of the
Manual, which it updates upon receiving revisions. However,
Robert D' Ausilio (D' Ausilio ), Association president until April
2007, and Paul Curtis (Curtis), Association vice president,
testified that section 404.08 was not in their copy of the Manual
and they had never before seen it or the cover memo. D' Ausilio
testified that if he had seen section 404.08 at any time while he
was still president,[5] he would not have filed the instant unfair
practice charge.
The record also contains several flyers announcing firefighter job
vacancies, written by the City's personnel office since 1992,
which contain language incorporating the policy stated in Manual
section 404.08. The flyers were posted in the personnel office at
City Hall, were available on the City's website, and copies were
sent to the Department, which forwarded them to the various fire
TThe record does not reveal whether more recent job descriptions have issued.
5 Arnold Furr replaced D' Ausilio as Association president in April 2007.
3
[February 1978] . . . Examples Of Duties . . . may act as
relief driver or engineer . . . License Required A valid,
appropriate California Driver's License.
[January 1986] . . . Examples Of Duties . . . may act as
relief driver or engineer . . . License Required A valid,
appropriate California Driver's License.
(Emphases in original.)
Effective January 1, 1989, California's new licensing and testing
POLICY: All fire suppression personnel shall possess a
minimum requirement of [a] noncommercial Class B license
restricted to operating fire fighting equipment only.
A cover memo was sent to all Department personnel instructing
them to add section 404.08 to the Manual. Copies of the Manual
are kept in the City's personnel office, the Fire Chief's office, and
at each fire station. The Association also maintains a copy of the
Manual, which it updates upon receiving revisions. However,
Robert D'Ausilio (D'Ausilio), Association president until April
2007, and Paul Curtis (Curtis), Association vice president,
testified that section 404.08 was not in their copy of the Manual
and they had never before seen it or the cover memo. D'Ausilio
testified that if he had seen section 404.08 at any time while he
was still president,[ ] he would not have filed the instant unfair
practice charge.
The record also contains several flyers announcing firefighter job
vacancies, written by the City's personnel office since 1992,
which contain language incorporating the policy stated in Manual
section 404.08. The flyers were posted in the personnel office at
City Hall, were available on the City's website, and copies were
sent to the Department, which forwarded them to the various fire
he record does not reveal whether more recent job descriptions have issued.
Arnold Furr replaced D'Ausilio as Association president in April 2007.
3

stations where they were posted and distributed to likely
candidates.6 The flyers were not sent directly to the Association.
They read in part:
[July 1993] ... other work as required ... valid California
Driver's License ...
[October 1996] ... other work as required ... Must obtain
California Class B "Firefighter" specific or Class B
License within the first year of employment .. .
[August 1997] ... other work as required ... must obtain
California Class B "Firefighter" specific or Class B
License within the first year of employment ...
[June 1999] ... do other related duties as required ...
must obtain a California Class B "Firefighter" specific or
Class B License within the first year of employment ...
[November 2001] ... may act as relief driver or
engineer ... must obtain California Class B "Firefighter"
specific or Class B License within the first year of
employment .. .
[January 2005] ... may act as relief driver or engineer ...
Must obtain California Class B Firefighter specific or
Class B License within the first year of employment and
must maintain throughout employment.
[March 2005] ... may act as relief driver or engineer ...
must obtain California Class B Firefighter specific or
Class B License within the first year of employment and
must maintain throughout employment.
[November 2005] ... do other work as required ... must
obtain California Class B "Firefighter" specific or Class B
License within the first year of employment.
[February 2006] ... do other work as required ... must
obtain California Class B Firefighter specific or Class B
License within the first year of employment and must
maintain throughout employment.
Most applicants for new firefighter positions are fire cadets, who are not in the
bargaining unit.
4
stations where they were posted and distributed to likely
candidates." The flyers were not sent directly to the Association.
They read in part:
[July 1993] . . . other work as required . . . valid California
Driver's License . . .
[October 1996] . . . other work as required . . . Must obtain
California Class B "Firefighter" specific or Class B
License within the first year of employment . . .
[August 1997] . . . other work as required . . . must obtain
California Class B "Firefighter" specific or Class B
License within the first year of employment . . .
[June 1999] . . . do other related duties as required . . .
must obtain a California Class B "Firefighter" specific or
Class B License within the first year of employment . . .
[November 2001] . . . may act as relief driver or
engineer . . . must obtain California Class B "Firefighter"
specific or Class B License within the first year of
employment . . .
[January 2005] . . . may act as relief driver or engineer . . .
Must obtain California Class B Firefighter specific or
Class B License within the first year of employment and
must maintain throughout employment.
[March 2005] . . . may act as relief driver or engineer . . .
must obtain California Class B Firefighter specific or
Class B License within the first year of employment and
must maintain throughout employment.
[November 2005] . . . do other work as required . . . must
obtain California Class B "Firefighter" specific or Class B
License within the first year of employment.
[February 2006] . . . do other work as required . . . must
obtain California Class B Firefighter specific or Class B
License within the first year of employment and must
maintain throughout employment.
Most applicants for new firefighter positions are fire cadets, who are not in the
bargaining unit.

Richard Bacio, City Manager/Personnel Director (Bacio) testified
that the job specifications are usually more accurate than the job
flyers, but that any changes from the former to the latter are
minor. He also testified that the job flyers are not "policy," as
policy is stated in the specifications.
that the job specifications are usually more accurate than the job
flyers, but that any changes from the former to the latter are
minor. He also testified that the job flyers are not "policy," as
In addition, Fire Chief Vincent Kemp (Kemp) issued the
following memoranda, which were addressed to all Department
personnel, including firefighters, but not sent directly to the
Association, stating in part:
[January 12, 1993 entitled "Fire Fighter Driver's License
(CDL) Program and Qualifications"] California has
developed new licensing and testing requirements for
drivers of fire vehicles .... They apply to all who operate
a commercial vehicle .... All fire suppression personnel
shall possess a minimum requirement of a noncommercial
Class B license restricted to operating fire fighting
equipment only.CJ
[June 21, 1996- essentially repeating the January 1993
memo]
[June 24, 1996 - entitled "Driver's License Applications
and Renewal"] Please consider the following suggestions
when applying or renewing your noncommercial fire
[June 21, 1996 - essentially repeating the January 1993
memo]
[June 24, 1996 - entitled "Driver's License Applications
and Renewal"] Please consider the following suggestions
when applying or renewing your noncommercial fire
fighter driver's license:
2. You will be applying for a "Class B" ... license ...
[April 16, 1998 - essentially repeating the January 1993
memo]
Kemp could not locate signed copies of these memos, except for
the 1993 memo, and could not affirmatively testify that they were
distributed throughout the Department.
Kemp could not locate signed copies of these memos, except for
the 1993 memo, and could not affirmatively testify that they were
distributed throughout the Department.
Also, newly hired firefighters, who serve as probationary
employees for their first year, are provided with a handbook
which includes reading assignments including the California
Commercial Driver Handbook and the Alhambra Fire Department
Class B Driver's License Manual; and they are given training to
prepare them for obtaining their Class B license. Curtis admitted
that he "vaguely" remembers having signed for his own
7 This memo was sent in Kemp's capacity as Training/Safety Officer, prior to his
promotion to Fire Chief.
5
Richard Bacio, City Manager/Personnel Director (Bacio) testified
policy is stated in the specifications.
In addition, Fire Chief Vincent Kemp (Kemp) issued the
following memoranda, which were addressed to all Department
personnel, including firefighters, but not sent directly to the
Association, stating in part:
January 12, 1993 entitled "Fire Fighter Driver's License
(CDL) Program and Qualifications"] California has
developed new licensing and testing requirements for
drivers of fire vehicles. . . . They apply to all who operate
a commercial vehicle. . . . All fire suppression personnel
shall possess a minimum requirement of a noncommercial
Class B license restricted to operating fire fighting
equipment only.[']
fighter driver's license:
2. You will be applying for a "Class B" . . . license . . .
[April 16, 1998 - essentially repeating the January 1993
memo]
Also, newly hired firefighters, who serve as probationary
employees for their first year, are provided with a handbook
which includes reading assignments including the California
Commercial Driver Handbook and the Alhambra Fire Department
Class B Driver's License Manual; and they are given training to
prepare them for obtaining their Class B license. Curtis admitted
that he "vaguely" remembers having signed for his own
This memo was sent in Kemp's capacity as Training/Safety Officer, prior to his
promotion to Fire Chief.
5

handbook when he was a probationary firefighter, and that since
he became Fire Captain in 1988 he provided probationary
firefighters their Class B training and has signed off on their
handbooks. Unit member Sergio Cassanova testified that when
he was first hired as a firefighter in 2001, he was given a
handbook by his captain. He did not receive his Class B training
until late in his probationary period, thus his captain extended the
probationary period until he received his Class B license, which
his captain said was a requirement.
Both Curtis and D' Ausilio testified that they believed Class B
training was not a licensing requirement but rather a "training
issue" similar to hazardous materials and emergency medical
training, where no certificates are issued.
Both Curtis and D'Ausilio testified that they believed Class B
training was not a licensing requirement but rather a "training
issue" similar to hazardous materials and emergency medical
training, where no certificates are issued.
The City contends that firefighters must be prepared in an
emergency situation to drive one of the Department's fire
vehicles, for which they must have a Class B license. The City
argues that the Association was aware, or should have been
aware, of all the above documents and of the Department's
consistent policy, since 1992, that all firefighters are required to
obtain Class B driver's licenses and to serve as needed in any
other capacity, including as relief drivers and engineers.
But the Association claims that the City did not follow its own
resolutions, ordinances, and policies, e.g.: 	City Charter,
Article XXIVa, entitled "Civil Service," section 192d provides
that "appropriate notice ... shall be given" of all job applicant
examinations, yet the Association did not receive direct notice of
the job flyers. 	Also, Administrative Policy Manual,
"Modifications and Revisions" requires that whenever the City's
policy manual is revised, the City Manager will "send a
memorandum to all those [to] whom a manual has been
assigned," yet the Association did not receive any memorandum
regarding the addition of Manual section 404.08. The
Association also argues that Manual section 302.03 conflicts with
Manual section 404.08, as the former does not require a Class B
license:
All members must possess the proper current operators
license, issued by the Department of Motor Vehicles,
State of California before driving any department
and that Manual section 208.00, which requires only that
firefighters "(P)erform other duties as required by the
6
handbook when he was a probationary firefighter, and that since
he became Fire Captain in 1988 he provided probationary
firefighters their Class B training and has signed off on their
handbooks. Unit member Sergio Cassanova testified that when
he was first hired as a firefighter in 2001, he was given a
handbook by his captain. He did not receive his Class B training
until late in his probationary period, thus his captain extended the
probationary period until he received his Class B license, which
his captain said was a requirement.
The City contends that firefighters must be prepared in an
emergency situation to drive one of the Department's fire
vehicles, for which they must have a Class B license. The City
argues that the Association was aware, or should have been
aware, of all the above documents and of the Department's
consistent policy, since 1992, that all firefighters are required to
obtain Class B driver's licenses and to serve as needed in any
other capacity, including as relief drivers and engineers.
But the Association claims that the City did not follow its own
resolutions, ordinances, and policies, e.g.: City Charter,
Article XXIVa, entitled "Civil Service," section 192d provides
that "appropriate notice . . . shall be given" of all job applicant
examinations, yet the Association did not receive direct notice of
the job flyers. Also, Administrative Policy Manual,
"Modifications and Revisions" requires that whenever the City's
policy manual is revised, the City Manager will "send a
memorandum to all those [to] whom a manual has been
assigned," yet the Association did not receive any memorandum
regarding the addition of Manual section 404.08. The
Association also argues that Manual section 302.03 conflicts with
Manual section 404.08, as the former does not require a Class B
license
All members must possess the proper current operators
license, issued by the Department of Motor Vehicles,
State of California before driving any department
automotive equipment.	automotive equipment.
and that Manual section 208.00, which requires only that
firefighters "(Perform other duties as required by the

Department," conflicts with section 207.00 which requires that
firefighters "drive and operate apparatus properly and safely
during normal driving and emergency response." The
Association also contends that Kemp's draft of proposed
revisions to the Manual, offered during contract negotiations in
August 2005, specifically section 3.110.52, shows that the
Department did not have a prior policy requiring firefighters to
operate Department vehicles:
All employees are required to possess the proper current
operator's license, issued by the State of California,
Department of Motor Vehicles, before operating any city
owned vehicle. Employees shall have the ability to
maintain the Drivers [sic] License to keep employment.
Employees will be required to drive Fire Department
vehicles in the course of their duties. In emergency
situations, any employee may be in a position to have to
drive a Fire Department vehicle, thus loss of California
driving privilege will disallow employees to be on duty
with the Alhambra Fire Department.
All Employees are required to immediately notify the
Chief-in-Charge of any loss of driving privilege,
regardless of the duration of that loss. Failure to notify
the Department of a loss of driving privilege and/or
operating a city vehicle without a proper license will be
grounds for immediate disciplinary action.[8]
D' Ausilio admitted that he has in the past seen firefighters act as
relief drivers, and conceded that if he were still Association
president, he would not proceed with that portion of the unfair
practice charge. However, he said he does not believe firefighters
need a Class B license for those limited occasions. He said he
and the Association believe that City policies are stated in job
descriptions; the job description for firefighter requires only a
"valid, appropriate California driver's license," but there is no
policy stated therein requiring a Class B license, notwithstanding
8 These proposed revisions came about at Bacio' s suggestion in the wake of Kevin
Webster's termination, discussed below.
7
Department," conflicts with section 207.00 which requires that
firefighters "drive and operate apparatus properly and safely
during normal driving and emergency response." The
Association also contends that Kemp's draft of proposed
revisions to the Manual, offered during contract negotiations in
August 2005, specifically section 3.110.52, shows that the
Department did not have a prior policy requiring firefighters to
operate Department vehicles:
All employees are required to possess the proper current
operator's license, issued by the State of California,
Department of Motor Vehicles, before operating any city-
owned vehicle. Employees shall have the ability to
maintain the Drivers [sic] License to keep employment.
Employees will be required to drive Fire Department
vehicles in the course of their duties. In emergency
situations, any employee may be in a position to have to
drive a Fire Department vehicle, thus loss of California
driving privilege will disallow employees to be on duty
with the Alhambra Fire Department.
All Employees are required to immediately notify the
Chief-in-Charge of any loss of driving privilege,
regardless of the duration of that loss. Failure to notify
the Department of a loss of driving privilege and/or
operating a city vehicle without a proper license will be
grounds for immediate disciplinary action.[ ]
D'Ausilio admitted that he has in the past seen firefighters act as
relief drivers, and conceded that if he were still Association
president, he would not proceed with that portion of the unfair
practice charge. However, he said he does not believe firefighters
need a Class B license for those limited occasions. He said he
and the Association believe that City policies are stated in job
descriptions; the job description for firefighter requires only a
"valid, appropriate California driver's license," but there is no
policy stated therein requiring a Class B license, notwithstanding
These proposed revisions came about at Bacio's suggestion in the wake of Kevin
Webster's termination, discussed below.
7

such language in the various job flyers.[9] 	D' Ausilio, although
not denying having seen the job flyers, testified that the
Association does not monitor them, because applicants for
firefighter vacancies are cadets who are not in the bargaining
unit. D' Ausilio also testified that the Association does not pay
attention to how the Department recruits or trains new
firefighters.
The Association points to several attempts it made during
2005/2006 contract negotiations to obtain a clear and
comprehensive set of City and Department rules, regulations, and
policies, but complains that the City provided inaccurate or
misleading documents. Letters exchanged between the parties
during this period, especially in May and June 2005, show that
the Association made various information requests regarding
various City policies; the City provided some documents,
responded that the Association already had some in its
possession, including the Manual, and claimed that some were
burdensome or did not exist. In this exchange of letters, the
Association did not specifically name any particular policy,
except for the City's non-smoking policy, and did not mention
driver's license requirements. There is no evidence that the
driver's license requirement was a subject of the 2005/2006
contract negotiations.
It appears that the driver's license issue arose from the City's
discharge of firefighter Kevin Webster, who was terminated in
January 2005 when his driver's license was suspended.[1°] On
January 6, Kemp issued Webster a Notice of Proposed
Termination, citing Manual section 302.03, which requires "the
proper current operators license," and stating:
It is a requirement of your position as a firefighter that
you possess a valid class B driver's license. Indeed, a
valid Class B driver's license is an essential aspect of a
firefighter' s qualifications.
9 Indeed, Bacio testified that City "policy" on job requirements is contained in job
descriptions; the language used in the flyers is taken from the job descriptions but is not always
entirely accurate or complete.
" Indeed, Bacio testified that City "policy" on job requirements is contained in job
descriptions; the language used in the flyers is taken from the job descriptions but is not always
entirely accurate or complete.
10 The California Department of Motor Vehicles suspended Webster's license for two
years after he pleaded no contest to a reckless driving charge.
8
such language in the various job flyers.["] D'Ausilio, although
not denying having seen the job flyers, testified that the
Association does not monitor them, because applicants for
firefighter vacancies are cadets who are not in the bargaining
unit. D'Ausilio also testified that the Association does not pay
attention to how the Department recruits or trains new
firefighters.
The Association points to several attempts it made during
2005/2006 contract negotiations to obtain a clear and
comprehensive set of City and Department rules, regulations, and
policies, but complains that the City provided inaccurate or
misleading documents. Letters exchanged between the parties
during this period, especially in May and June 2005, show that
the Association made various information requests regarding
various City policies; the City provided some documents,
responded that the Association already had some in its
possession, including the Manual, and claimed that some were
burdensome or did not exist. In this exchange of letters, the
Association did not specifically name any particular policy,
except for the City's non-smoking policy, and did not mention
driver's license requirements. There is no evidence that the
driver's license requirement was a subject of the 2005/2006
contract negotiations.
It appears that the driver's license issue arose from the City's
discharge of firefighter Kevin Webster, who was terminated in
January 2005 when his driver's license was suspended.["] On
January 6, Kemp issued Webster a Notice of Proposed
Termination, citing Manual section 302.03, which requires "the
proper current operators license," and stating:
It is a requirement of your position as a firefighter that
you possess a valid class B driver's license. Indeed, a
valid Class B driver's license is an essential aspect of a
firefighter's qualifications.
"The California Department of Motor Vehicles suspended Webster's license for two
years after he pleaded no contest to a reckless driving charge.
8

Curtis testified that he thought the termination notice was
ambiguous on whether the requirement was for a Class B license
or merely for a "proper current operator's license," which could
mean a Class C license. D 'Ausilio testified that he did not file a
PERB charge at that time because the Association wanted to first
exhaust administrative remedies through a Skelly hearing.[ 11 ]
D' Auslio represented Webster at the hearing; Webster did not
present any evidence and there is no indication that the issue of
unilateral change in driver's license policy was raised. Webster
lost the appeal and the termination was sustained. The
Association claims that it did not learn that the Class B or relief
driver requirements were "policy" until it received a letter from
Kemp dated March 3, 2006. Responding to the Association's
request for information on non-smoking regulations, Kemp stated
that City and Department policies regarding smoking were
contained in, inter alia, job vacancy flyers. 	The Association
contends that it was not until receipt of the letter that it knew the
City considered job flyers to contain official policy. The
Association then extrapolated Kemp's statement to apply to
driver's licenses as well, and filed the instant charge.
ALJ'S PROPOSED DECISION
The ALJ found that the charge was untimely: "[i]n the face of overwhelming evidence
of the City's long-established practices, I find the Association's claims of confusion,
misunderstanding, and lack of knowledge to be unreasonable and unworthy of serious
consideration." The ALJ further refused to extend equitable tolling to the facts of this case
under Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach
CCD I) because equitable tolling does not apply to Skelly hearings, but rather to bilaterally
agreed upon dispute resolution procedures. Having found the charge untimely, the ALJ did not
analyze whether the City's policies represented unlawful unilateral changes. Next, the ALJ
awarded sanctions against the Association to compensate the City for its attorney's fees and
costs in defending against the charge and complaint.
11 In Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly), the court held that
due process guaranteed to public employees the right to a hearing prior to the imposition of
discipline.
9
Curtis testified that he thought the termination notice was
ambiguous on whether the requirement was for a Class B license
or merely for a "proper current operator's license," which could
mean a Class C license. D'Ausilio testified that he did not file a
PERB charge at that time because the Association wanted to first
exhaust administrative remedies through a Skelly hearing.[" ]
D'Auslio represented Webster at the hearing; Webster did not
present any evidence and there is no indication that the issue of
unilateral change in driver's license policy was raised. Webster
lost the appeal and the termination was sustained. The
Association claims that it did not learn that the Class B or relief
driver requirements were "policy" until it received a letter from
Kemp dated March 3, 2006. Responding to the Association's
request for information on non-smoking regulations, Kemp stated
that City and Department policies regarding smoking were
contained in, inter alia, job vacancy flyers. The Association
contends that it was not until receipt of the letter that it knew the
City considered job flyers to contain official policy. The
Association then extrapolated Kemp's statement to apply to
driver's licenses as well, and filed the instant charge.
ALJ'S PROPOSED DECISION
The ALJ found that the charge was untimely: "[ijn the face of overwhelming evidence
of the City's long-established practices, I find the Association's claims of confusion,
misunderstanding, and lack of knowledge to be unreasonable and unworthy of serious
consideration." The ALJ further refused to extend equitable tolling to the facts of this case
under Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach
CCD I) because equitable tolling does not apply to Skelly hearings, but rather to bilaterally
agreed upon dispute resolution procedures. Having found the charge untimely, the ALJ did not
analyze whether the City's policies represented unlawful unilateral changes. Next, the ALJ
awarded sanctions against the Association to compensate the City for its attorney's fees and
costs in defending against the charge and complaint.
"In Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly), the court held that
due process guaranteed to public employees the right to a hearing prior to the imposition of
discipline.

ASSOCIATION'S EXCEPTIONS
The Association argues that the ALJ misstated the facts and evidentiary record thereby
erring in her conclusions
of
law. Additionally, the Association argues that the ALJ erred in
awarding attorney's fees.
CITY'S RESPONSE
The City argues that the ALJ' s factual conclusions were appropriate as well as her
conclusions
of
law. The City further argues that the award
of
attorney fees in this matter is
appropriate.
DISCUSSION
Timeliness
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing
of
the charge.
(Coachella Valley Mosquito and Vector Control District
v.
Public Employment Relations
Board (2005)
35
Cal.4th 1072.) The limitations period begins to run once the charging party
knows, or should have known,
of
the conduct underlying the charge. (Gavilan Joint
Community College District (1996) PERB Decision No. 1177 (Gavilan).) Charging party
bears the burden
of
demonstrating that the charge is timely filed. 	(Cf. Tehachapi Unified
School District (1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
We find the ALJ properly concluded that the unfair practice charge was filed well
beyond the six-month limitations period and, therefore, was untimely. We adopt the ALJ's
rationale incorporated herein, subject to the discussion below:
The unfair practice alleged here is that the City unilaterally
changed its policy regarding driver's licenses and relief driver
ASSOCIATION'S EXCEPTIONS
The Association argues that the ALJ misstated the facts and evidentiary record thereby
erring in her conclusions of law. Additionally, the Association argues that the ALJ erred in
awarding attorney's fees.
CITY'S RESPONSE
The City argues that the ALJ's factual conclusions were appropriate as well as her
conclusions of law. The City further argues that the award of attorney fees in this matter is
appropriate.
DISCUSSION
Timeliness
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing of the charge.
Coachella Valley Mosquito and Vector Control District v. Public Employment Relations
Board (2005) 35 Cal.4th 1072.) The limitations period begins to run once the charging party
knows, or should have known, of the conduct underlying the charge. (Gavilan Joint
Community College District (1996) PERB Decision No. 1177 (Gavilan).) Charging party
bears the burden of demonstrating that the charge is timely filed. (Cf. Tehachapi Unified
School District (1993) PERB Decision No. 1024; State of California (Department of
Insurance) (1997) PERB Decision No. 1197-S.)
We find the ALJ properly concluded that the unfair practice charge was filed well
beyond the six-month limitations period and, therefore, was untimely. We adopt the ALJ's
rationale incorporated herein, subject to the discussion below:
The unfair practice alleged here is that the City unilaterally
changed its policy regarding driver's licenses and relief driver
10

duties. Unilateral changes are unlawful when: (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 Co. Employees Assn. v.
City of Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union
High School District (1982) PERB Decision No. 196 (Grant).)
Established policy may be reflected in a collective bargaining
agreement (Grant), in the parties' relevant bargaining history
(Rio Hondo Community College District (1982) PERB Decision
No. 279), or in the employer's past practice (ibid; Paiaro Valley
Unified School District (1978) PERB Decision No. 51 ).
Here, there is no question that the City's long-established practice
was that firefighters obtain and maintain Class B licenses and
occasionally serve as relief drivers. The Association complains
that it was never officially notified of the Class B requirement.
However, while an employer's official notice to the union is a
factor in determining whether 	employer made an unlawful
unilateral change (Grant), such notice is not required in
determining whether the charge was filed within the statute of
limitations; rather, the question is whether the union had or
should have had knowledge (Gavilan).
the
The Association does not deny knowledge of the City's long
standing practice. The Association contends, however, that
documents citing the Class B requirement conflict with other
documents citing only a "valid California driver's license," and
that it did not understand the City's practice was its policy.
However, there is no legal distinction between "policy" and
"practice," since the former subsumes the latter. Nor does PERB
require that a long-standing practice be specifically labeled by the
employer as official "policy" for it to be held as a policy,
notwithstanding Bacio' s testimony that job flyers are not
"policy." Further, I find that the job flyers and other documents
stating a Class B license requirement are not inconsistent with the
job descriptions stating a "valid, appropriate California Driver's
License" or with Manual section 302.03 requiring "the proper
current operators license." (See, e.g., Trustees of the California
State University (2004) PERB Decision No. 1658-H, holding that
the university's written policy was not inconsistent with, thus not
a change from, past practice.)
11
duties. Unilateral changes are unlawful when: (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 Co. Employees Assn. v.
City of Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union
High School District (1982) PERB Decision No. 196 (Grant).)
Established policy may be reflected in a collective bargaining
agreement (Grant), in the parties' relevant bargaining history
(Rio Hondo Community College District (1982) PERB Decision
No. 279), or in the employer's past practice (ibid; Pajaro Valley
Unified School District (1978) PERB Decision No. 51).
Here, there is no question that the City's long-established practice
was that firefighters obtain and maintain Class B licenses and
occasionally serve as relief drivers. The Association complains
that it was never officially notified of the Class B requirement.
However, while an employer's official notice to the union is a
factor in determining whether the employer made an unlawful
unilateral change (Grant), such notice is not required in
determining whether the charge was filed within the statute of
limitations; rather, the question is whether the union had or
should have had knowledge (Gavilan).
The Association does not deny knowledge of the City's long-
standing practice. The Association contends, however, that
documents citing the Class B requirement conflict with other
documents citing only a "valid California driver's license," and
that it did not understand the City's practice was its policy.
However, there is no legal distinction between "policy" and
"practice," since the former subsumes the latter. Nor does PERB
require that a long-standing practice be specifically labeled by the
employer as official "policy" for it to be held as a policy,
notwithstanding Bacio's testimony that job flyers are not
"policy." Further, I find that the job flyers and other documents
stating a Class B license requirement are not inconsistent with the
job descriptions stating a "valid, appropriate California Driver's
License" or with Manual section 302.03 requiring "the proper
current operators license." (See, e.g., Trustees of the California
State University (2004) PERB Decision No. 1658-H, holding that
the university's written policy was not inconsistent with, thus not
a change from, past practice.)
11

Prior to the instant charge, no one had contended that the
appropriate or proper California license was anything other than a
Class B license, and indeed there is no evidence that firefighters
have ever been allowed to maintain anything less than a Class B
license. The City's requirements have remained clear and
consistent since at least 1992. (Los Angeles Unified School
District (2002) PERB Decision No. 1501; County of Placer
(2004) PERB Decision No. 1630 (an enforceable past practice
must be unequivocal, clearly enunciated and readily ascertainable
for a reasonable period of time).)
The Association never challenged the requirements and never
indicated that it did not understand them. Indeed, if the
Association ever needed clarification, as it contends, it could
easily have asked the City, at any time, whether a Class B license
was a requirement of the job, and whether firefighters may be
called upon to serve as relief drivers. The clear answer would
have been "yes." But the City's practices were never questioned
until Webster's termination, and now, in an apparently continuing
protest of the termination, the Association proffers illogical and
unreliable arguments with no basis in fact or reason.
I shall not find that the Association had knowledge of Manual
section 404.08, which states as policy that "all fire suppression
personnel" must have Class B licenses, as I find no reason to
discredit the testimony of both D' Ausilio and Curtis that they had
never before seen either section 404.08 or its accompanying
cover memo. However, a Class B license requirement has been
cited in firefighter job flyers since 1996, and while D' Ausilio
contends that the Association does not "monitor" these flyers,
neither he nor any other Association witness denied having seen
them over the years. The flyers have been posted at the various
fire stations and widely distributed; as the Association's officers
are all unit employees, I therefore find that the Association had
knowledge of the flyers. 	In addition, the Association did not
deny seeing Kemp's 1993 and 1996 memoranda or the handbook
distributed to new firefighters since at least 1988, all citing the
Class B license requirement. Indeed, as a firefighter Curtis
himself received a handbook and was trained for his own Class B
license, and as a fire captain he signed off on other firefighters'
handbooks and provided them with their Class B training. I
therefore find that the Association also had knowledge of the
handbook requirements as well as of Kemp's memoranda.
Finally, at the very latest, the Association had knowledge of the
12
Prior to the instant charge, no one had contended that the
appropriate or proper California license was anything other than a
Class B license, and indeed there is no evidence that firefighters
have ever been allowed to maintain anything less than a Class B
license. The City's requirements have remained clear and
consistent since at least 1992. (Los Angeles Unified School
District (2002) PERB Decision No. 1501; County of Placer
(2004) PERB Decision No. 1630 (an enforceable past practice
must be unequivocal, clearly enunciated and readily ascertainable
for a reasonable period of time).)
The Association never challenged the requirements and never
indicated that it did not understand them. Indeed, if the
Association ever needed clarification, as it contends, it could
easily have asked the City, at any time, whether a Class B license
was a requirement of the job, and whether firefighters may be
called upon to serve as relief drivers. The clear answer would
have been "yes." But the City's practices were never questioned
until Webster's termination, and now, in an apparently continuing
protest of the termination, the Association proffers illogical and
unreliable arguments with no basis in fact or reason.
I shall not find that the Association had knowledge of Manual
section 404.08, which states as policy that "all fire suppression
personnel" must have Class B licenses, as I find no reason to
discredit the testimony of both D'Ausilio and Curtis that they had
never before seen either section 404.08 or its accompanying
cover memo. However, a Class B license requirement has been
cited in firefighter job flyers since 1996, and while D'Ausilio
contends that the Association does not "monitor" these flyers,
neither he nor any other Association witness denied having seen
them over the years. The flyers have been posted at the various
fire stations and widely distributed; as the Association's officers
are all unit employees, I therefore find that the Association had
knowledge of the flyers. In addition, the Association did not
deny seeing Kemp's 1993 and 1996 memoranda or the handbook
distributed to new firefighters since at least 1988, all citing the
Class B license requirement. Indeed, as a firefighter Curtis
himself received a handbook and was trained for his own Class B
license, and as a fire captain he signed off on other firefighters'
handbooks and provided them with their Class B training. I
therefore find that the Association also had knowledge of the
handbook requirements as well as of Kemp's memoranda.
Finally, at the very latest, the Association had knowledge of the
12

Class B requirement because it was cited in Webster's
termination notice of January 2005.
As to firefighters serving as relief drivers, this too was cited in
job flyers in November 2001, January 2005 and March 2005, as
well as in the job descriptions of February 1978 and January
1986. The Association does not deny knowing that this was the
City's policy and practice. However, in its post-hearing brief, the
Association complains that the City unilaterally changed the
policy from one where firefighters "may" act as relief drivers to
one where they "must" act as relief drivers. But there is simply
no evidence that such a requirement exists. There is no reference
to such a requirement in either Webster's termination notice of
January 6, 2005, or in Kemp's March 3, 2006, letter to the
Association. Should the Association be referring to Kemp's
August 2005 draft contract proposal, which states that
"(E)mployees will be required [emphasis supplied] to drive Fire
Department vehicles in the course of their duties," that proposal
was made more than six months before the charge was filed.[ 12]
In the face of overwhelming evidence of the City's long
established practices, I find the Association's claims of
confusion, misunderstanding, and lack of knowledge to be
unreasonable and unworthy of serious consideration.
The Association also argues that the charge is timely because the
statute of limitations was suspended while administrative
remedies, i.e., Webster's Skelly hearing, were being pursued.
The Association relies on Long Beach Community [College]
District (2003) PERB Decision No. 1564, which announced the
return to the principles of equitable tolling. However, in that
case, PERB made it clear that the statute is tolled only while a
matter is pending between the same parties covering the issue(s)
raised in the unfair practice charge, under a "bilaterally agreed
upon dispute resolution procedure," e.g., the grievance procedure
of a collective bargaining agreement.
Equitable tolling does not extend, however, to non-contractual
disciplinary appeals such as Skelly hearings, which are not
bilateral agreements. Further, the Association was not a party to
Kemp's proposal goes on to explain that "(I)n emergency situations, any employee
may be in a position to have to drive a Fire Department vehicle." I find that this sentence
qualifies the earlier "required" language. Further, there is no evidence that Kemp's proposal
was ever implemented. I therefore do not find that any change was made to the long-standing
policy that firefighters may be called upon to serve as relief drivers.
13
Class B requirement because it was cited in Webster's
termination notice of January 2005.
As to firefighters serving as relief drivers, this too was cited in
job flyers in November 2001, January 2005 and March 2005, as
well as in the job descriptions of February 1978 and January
1986. The Association does not deny knowing that this was the
City's policy and practice. However, in its post-hearing brief, the
Association complains that the City unilaterally changed the
policy from one where firefighters "may" act as relief drivers to
one where they "must" act as relief drivers. But there is simply
no evidence that such a requirement exists. There is no reference
to such a requirement in either Webster's termination notice of
January 6, 2005, or in Kemp's March 3, 2006, letter to the
Association. Should the Association be referring to Kemp's
August 2005 draft contract proposal, which states that
"(Employees will be required [emphasis supplied] to drive Fire
Department vehicles in the course of their duties," that proposal
was made more than six months before the charge was filed.['2]
In the face of overwhelming evidence of the City's long-
established practices, I find the Association's claims of
confusion, misunderstanding, and lack of knowledge to be
unreasonable and unworthy of serious consideration.
The Association also argues that the charge is timely because the
statute of limitations was suspended while administrative
remedies, i.e., Webster's Skelly hearing, were being pursued.
The Association relies on Long Beach Community [College]
District (2003) PERB Decision No. 1564, which announced the
return to the principles of equitable tolling. However, in that
case, PERB made it clear that the statute is tolled only while a
matter is pending between the same parties covering the issue(s)
raised in the unfair practice charge, under a "bilaterally agreed
upon dispute resolution procedure," e.g., the grievance procedure
of a collective bargaining agreement.
Equitable tolling does not extend, however, to non-contractual
disciplinary appeals such as Skelly hearings, which are not
bilateral agreements. Further, the Association was not a party to
" Kemp's proposal goes on to explain that "(I)n emergency situations, any employee
may be in a position to have to drive a Fire Department vehicle." I find that this sentence
qualifies the earlier "required" language. Further, there is no evidence that Kemp's proposal
was ever implemented. I therefore do not find that any change was made to the long-standing
policy that firefighters may be called upon to serve as relief drivers.
13

Webster's appeal, and there is no evidence that the issue
of
unilateral change in policy was raised therein. Nor is there
evidence that a grievance was filed on Webster's termination,
notwithstanding that in its post-hearing brief the Association
inaccurately refers to the Skelly appeal as a grievance. I conclude
therefore that the Association's argument fails and that the statute
was not tolled.
Accordingly, I conclude that the unfair practice charge was filed
well beyond the six-month limitations period and is untimely.
The ALJ applied the Board's decision in Long Beach CCD I, supra, concluding that the
six-month statute oflimitations was not equitably tolled while City employee Kevin Webster
participated in the Skelly process. Recently, the Board reaffirmed the doctrine
of
equitable
tolling in Long Beach Community College District (2009) PERB Decision No. 2002
(Long Beach CCD
11).	
Additionally, in Solano County Fair Association (2009) PERB
Decision No. 2035-M, the Board held that equitable tolling applies to cases filed under the
MMBA under certain circumstances. Specifically, equitable tolling will apply when parties
utilize a negotiated non-binding dispute resolution procedure or a binding dispute resolution
procedure contained in a negotiated agreement. Because Long Beach CCD II merely refined
the equitable tolling test set forth in Long Beach CCD
I,
the ALJ would have reached the same
conclusion under the Board's current formulation
of
the test. Accordingly, the Board affirms
the ALI' s conclusion that equitable tolling is not applicable in this case.
Sanctions (Attorney's Fees)
The ALJ granted attorney's fees to the City because it found that the Association's case
was "without arguable merit" and its conduct was proscribed by Hacienda La Puente Unified
School District (1998) PERB Decision No. 1280 (Hacienda La Puente). In order to determine
whether "without arguable merit" is a sufficient justification to order attorney's fees, the
developing PERB history of these types of awards in unfair practice cases must be explored.
14
Webster's appeal, and there is no evidence that the issue of
unilateral change in policy was raised therein. Nor is there
evidence that a grievance was filed on Webster's termination,
notwithstanding that in its post-hearing brief the Association
inaccurately refers to the Skelly appeal as a grievance. I conclude
therefore that the Association's argument fails and that the statute
was not tolled.
Accordingly, I conclude that the unfair practice charge was filed
well beyond the six-month limitations period and is untimely.
The ALJ applied the Board's decision in Long Beach CCD I, supra, concluding that the
six-month statute of limitations was not equitably tolled while City employee Kevin Webster
participated in the Skelly process. Recently, the Board reaffirmed the doctrine of equitable
tolling in Long Beach Community College District (2009) PERB Decision No. 2002
(Long Beach CCD In). Additionally, in Solano County Fair Association (2009) PERB
Decision No. 2035-M, the Board held that equitable tolling applies to cases filed under the
MMBA under certain circumstances. Specifically, equitable tolling will apply when parties
utilize a negotiated non-binding dispute resolution procedure or a binding dispute resolution
procedure contained in a negotiated agreement. Because Long Beach CCD II merely refined
the equitable tolling test set forth in Long Beach CCD I, the ALJ would have reached the same
conclusion under the Board's current formulation of the test. Accordingly, the Board affirms
the ALJ's conclusion that equitable tolling is not applicable in this case.
Sanctions (Attorney's Fees)
The ALJ granted attorney's fees to the City because it found that the Association's case
was "without arguable merit" and its conduct was proscribed by Hacienda La Puente Unified
School District (1998) PERB Decision No. 1280 (Hacienda La Puente). In order to determine
whether "without arguable merit" is a sufficient justification to order attorney's fees, the
developing PERB history of these types of awards in unfair practice cases must be explored.
14

In King City High School District Association, CTAINEA; King City Joint Union High
School District; et al. (Cumero) (1982) PERB Decision No. 197 (King City), the Board
decided to adopt the National Labor Relations Board (NLRB) standard for awarding attorneys
fees. King City provided:
[A]ttorney's fees will not be awarded to a charging party unless
there is a showing that the respondent's unlawful conduct has
been repetitive and that its defenses are without arguable merit.
(King City, p. 26, emphasis added.) The two-prong test of demonstrating a party's unlawful
repetitive conduct and that its contentions were without arguable merit prior to awarding
attorney's fees or litigation costs was followed in subsequent Board decisions. (Modesto City
Schools and High School District (1985) PERB Decision No. 518, p. 3 (Modesto I); Modesto
City and High School Districts (1986) PERB Decision No. 566, pp. 17 and 18 (Modesto 11); 13
and Los Angeles Unified School District (1990) PERB Decision No. 803, adopted ALJ's
proposed dee., pp. 12 and 13.)
In Chula Vista City School District (1982) PERB Decision 256 (Chula Vista I), after
citing King City, the Board found that the NLRB standard was appropriate and attorney's fees
should be awarded "only where the charge is without arguable merit and was brought in bad
faith." (Chula Vista I, p. 9, emphasis added.)
In United Professors of California (Watts) (1984) PERB Decision No. 398-H (United
Professors), the Board found that a complaint which is "vexatious and frivolous" satisfied the
requirement for awarding attorney's fees. 	The complaint filed defied a previous Board order
not to abuse "the administrative process of the Board." (United Professors, at p. 2.)
I	"In n Modesto II at page 18, the Board found that the defenses were "at least debatable,"
so they had arguable merit.
15
In King City High School District Association, CTA/NEA; King City Joint Union High
School District; et al. (Cumero) (1982) PERB Decision No. 197 (King City), the Board
decided to adopt the National Labor Relations Board (NLRB) standard for awarding attorneys
fees. King City provided:
[A ]ttorney's fees will not be awarded to a charging party unless
there is a showing that the respondent's unlawful conduct has
been repetitive and that its defenses are without arguable merit.
(King City, p. 26, emphasis added.) The two-prong test of demonstrating a party's unlawful
repetitive conduct and that its contentions were without arguable merit prior to awarding
attorney's fees or litigation costs was followed in subsequent Board decisions. (Modesto City
Schools and High School District (1985) PERB Decision No. 518, p. 3 (Modesto D); Modesto
City and High School Districts (1986) PERB Decision No. 566, pp. 17 and 18 (Modesto In); 13
and Los Angeles Unified School District (1990) PERB Decision No. 803, adopted ALJ's
proposed dec., pp. 12 and 13.)
In Chula Vista City School District (1982) PERB Decision 256 (Chula Vista D), after
citing King City, the Board found that the NLRB standard was appropriate and attorney's fees
should be awarded "only where the charge is without arguable merit and was brought in bad
faith." (Chula Vista I, p. 9, emphasis added.)
In United Professors of California (Watts) (1984) PERB Decision No. 398-H (United
Professors), the Board found that a complaint which is "vexatious and frivolous" satisfied the
requirement for awarding attorney's fees. The complaint filed defied a previous Board order
not to abuse "the administrative process of the Board." (United Professors, at p. 2.)
Modesto II at page 18, the Board found that the defenses were "at least debatable,"
so they had arguable merit.
15

In Chula Vista City School District (1990) PERB Decision No. 834 (Chula Vista II),
while citing prior PERB attorney's fees decisions (King City, Chula Vista I, and Modesto I),
the Board incorrectly summarized the prior attorney's fees holdings as:
Attorney's fees and related litigation costs are awarded only if a
party's case is without any arguable merit, frivolous, dilatory, or
pursued in bad faith.
(Chula Vista II, at pp. 73 and 74, emphasis added.) By incorrectly summarizing the prior
holdings, Chula Vista II eliminated the two-prong test set forth in King City and Chula Vista I
for a single element test.
Subsequent to Chula Vista II, some of the PERB decisions followed the two-prong test
found in King City and its progeny (California State Employees Association (Hackett, et al.)
(1995) PERB Decision No. 1126-S, pp. 8 and 9; Alisa! Union Elementary School District
(2000) PERB Decision No. 1412, p. 36; and United Teachers of Los Angeles (Valadez, et al.)
(2001) PERB Decision No. 1453, pp. 3 and 4 (United Teachers of Los Angeles) 14 and some of
the PERB decisions followed the single element test of Chula Vista II and its progeny ( United
Teachers of Los Angeles (Watts) (1993) PERB Decision No. 1018, p. 2).
In State of California (Office of the Lieutenant Governor) (1992) PERB Decision
No. 920-S, (Office of the Lieutenant Governor), 15 the Board cited to Chula Vista II and other
cases in again summarizing the holdings made by PERB to a single element test:
The Board will award attorney's fees and costs where a case is
without arguable merit, frivolous, vexatious, dilatory, pursued in
bad faith or otherwise an abuse of process.
In United Teachers of Los Angeles, PERB expressly held a party requesting
attorney's fees must prove both prongs of the test (unlawful repetitive conduct and without
arguable merit). However, Chula Vista II and its progeny of cases were not discussed.
In Chula Vista City School District (1990) PERB Decision No. 834 (Chula Vista II),
while citing prior PERB attorney's fees decisions (King City, Chula Vista I, and Modesto D),
the Board incorrectly summarized the prior attorney's fees holdings as:
Attorney's fees and related litigation costs are awarded only if a
party's case is without any arguable merit, frivolous, dilatory, or
pursued in bad faith.
(Chula Vista II, at pp. 73 and 74, emphasis added.) By incorrectly summarizing the prior
holdings, Chula Vista II eliminated the two-prong test set forth in King City and Chula Vista I
for a single element test.
Subsequent to Chula Vista II, some of the PERB decisions followed the two-prong test
found in King City and its progeny (California State Employees Association (Hackett, et al.)
(1995) PERB Decision No. 1126-S, pp. 8 and 9; Alisal Union Elementary School District
(2000) PERB Decision No. 1412, p. 36; and United Teachers of Los Angeles (Valadez, et al.)
(2001) PERB Decision No. 1453, pp. 3 and 4 (United Teachers of Los Angeles) * and some of
the PERB decisions followed the single element test of Chula Vista II and its progeny (United
Teachers of Los Angeles (Watts) (1993) PERB Decision No. 1018, p. 2).
In State of California (Office of the Lieutenant Governor) (1992) PERB Decision
No. 920-S, (Office of the Lieutenant Governor)," the Board cited to Chula Vista II and other
cases in again summarizing the holdings made by PERB to a single element test:
The Board will award attorney's fees and costs where a case is
without arguable merit, frivolous, vexatious, dilatory, pursued in
bad faith or otherwise an abuse of process.
*In United Teachers of Los Angeles, PERB expressly held a party requesting
attorney's fees must prove both prongs of the test (unlawful repetitive conduct and without
arguable merit). However, Chula Vista II and its progeny of cases were not discussed.
The Board overruled Office of the Lieutenant Governor on other grounds in State of
California (State Personnel Board) (2006) PERB Decision No. 1864-S.
16
15 The Board overruled Office of the Lieutenant Governor on other grounds in State of
California (State Personnel Board) (2006) PERB Decision No. 1864-S.
16

(Office of the Lieutenant Governor, at p. 2, emphasis added.) Strangely enough, even though
Office of the Lieutenant Governor frames the single element test in the disjunctive "or" the
decision rejected the request for attorney's fees based on the contention that the appeal was
only meritless; the employer failed to allege that the case was "frivolous, vexatious, dilatory,
pursued in bad faith, or an otherwise abuse of process." (Office of the Lieutenant Governor, at
p. 2.)
The single element disjunctive test set forth in Office of the Lieutenant Governor was
repeated again in Hacienda La Puente. Hacienda La Puente cited an additional basis for
awarding attorney's fees: 	Government Code section 11455.30 subdivision (a). Government
Code section 11455.30 subdivision (a) provides:
The presiding officer may order a party, the party's attorney or
other authorized representative, or both, to pay reasonable
expenses, including attorney's fees, incurred by another party as a
result of bad faith actions or tactics that are frivolous or solely
intended to cause unnecessary delay as defined in Section 128.5
of the Code of Civil Procedure.[16]
16 Code of Civil Procedure section 128.5, subdivisions (b)(l) and (2), the section that
sets forth when sanctions can be ordered by trial courts, defines actions or tactics that are
frivolous as:
1 Code of Civil Procedure section 128.5, subdivisions (b)(1) and (2), the section that
sets forth when sanctions can be ordered by trial courts, defines actions or tactics that are
frivolous as:
(a) 	Every trial court may order a party, the party's attorney, or
both to pay any reasonable expenses, including attorney's fees,
incurred by another party as a result of bad-faith actions or tactics
that are frivolous or solely intended to cause unnecessary delay.
This section also applies to judicial arbitration proceedings under
Chapter 2.5 (commencing with Section 1141.10) of Title 3 of
Part 3.
(b) 	For purposes of this section:
(l) "Actions or tactics" include, but are not limited to, the
making or opposing of motions or the filing and service of a
complaint or cross-complaint only if the actions or tactics
arise from a complaint filed, or a proceeding initiated, on or
before December 31, 1994. The mere filing of a complaint
17
(Office of the Lieutenant Governor, at p. 2, emphasis added.) Strangely enough, even though
Office of the Lieutenant Governor frames the single element test in the disjunctive "or" the
decision rejected the request for attorney's fees based on the contention that the appeal was
only meritless; the employer failed to allege that the case was "frivolous, vexatious, dilatory,
pursued in bad faith, or an otherwise abuse of process." (Office of the Lieutenant Governor, at
p. 2.)
The single element disjunctive test set forth in Office of the Lieutenant Governor was
repeated again in Hacienda La Puente. Hacienda La Puente cited an additional basis for
awarding attorney's fees: Government Code section 11455.30 subdivision (a). Government
Code section 1 1455.30 subdivision (a) provides:
The presiding officer may order a party, the party's attorney or
other authorized representative, or both, to pay reasonable
expenses, including attorney's fees, incurred by another party as a
result of bad faith actions or tactics that are frivolous or solely
intended to cause unnecessary delay as defined in Section 128.5
of the Code of Civil Procedure.[]
(a) Every trial court may order a party, the party's attorney, or
both to pay any reasonable expenses, including attorney's fees,
incurred by another party as a result of bad-faith actions or tactics
that are frivolous or solely intended to cause unnecessary delay.
This section also applies to judicial arbitration proceedings under
Chapter 2.5 (commencing with Section 1141.10) of Title 3 of
Part 3.
b) For purposes of this section:
(1) "Actions or tactics" include, but are not limited to, the
making or opposing of motions or the filing and service of a
complaint or cross-complaint only if the actions or tactics
arise from a complaint filed, or a proceeding initiated, on or
before December 31, 1994. The mere filing of a complaint
17

(Emphasis added.) According to the code section, the presiding officer may award attorneys
fees if the "actions and tactics" were taken in "bad faith" and "frivolous." (Shelton v. Rancho
Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1346 (Shelton).) "Bad faith" is to
be determined by a subjective standard. (Id. at p. 1347). "Frivolous" is defined as "totally and
completely without merit." (Code of Civ. Proc., § 128.5, subd. (b )(2).)
In Hacienda La Puente, the Board awarded attorney's fees as the district's efforts to
comply with the Board order were tantamount to an absolute refusal to comply with the Board
order. 	In subsequent cases, the Board cited Government Code section 11455.30 as a basis for
its authority to award attorneys fees. (Los Rios College Federation of Teachers, Local 2279
(Deglow) (2003) PERB Decision No. 1515; Marin County Law Library (2004) PERB Decision
No. 1655-M (Marin).) In Marin, the Board awarded attorney's fees against a charging party's
advocate who addressed the Board members in an offensive and demeaning manner.
Attorney's fees were justified as the advocate's conduct went "far beyond" a frivolous filing.
(Marin, at p. 3.)
As Government Code section 11455.30, subdivision (a) incorporates the elements of
the prior NLRB standard of "only where the charge is without arguable merit and was brought
in bad faith" (Chula Vista I, supra, PERB Decision No. 256, at p. 9) and the "bad faith" actions
without service thereof on an opposing party does not
constitute 'actions or tactics' for purposes of this section.
without service thereof on an opposing party does not
constitute "actions or tactics' for purposes of this section.
(2) "Frivolous" means (A) totally and completely without
merit or (B) for the sole purpose of harassing an opposing
party.
"Frivolous" means (A) totally and completely without
merit or (B) for the sole purpose of harassing an opposing
party.
(Emphasis added.)
18
(Emphasis added.) According to the code section, the presiding officer may award attorneys
fees if the "actions and tactics" were taken in "bad faith" and "frivolous." (Shelton v. Rancho
Mortgage & Investment Corp. (2002) 94 Cal.App.4th 1337, 1346 (Shelton).) "Bad faith" is to
be determined by a subjective standard. (Id. at p. 1347). "Frivolous" is defined as "totally and
completely without merit." (Code of Civ. Proc., $ 128.5, subd. (b)(2).)
In Hacienda La Puente, the Board awarded attorney's fees as the district's efforts to
comply with the Board order were tantamount to an absolute refusal to comply with the Board
order. In subsequent cases, the Board cited Government Code section 1 1455.30 as a basis for
its authority to award attorneys fees. (Los Rios College Federation of Teachers, Local 2279
(Deglow) (2003) PERB Decision No. 1515; Marin County Law Library (2004) PERB Decision
No. 1655-M (Marin).) In Marin, the Board awarded attorney's fees against a charging party's
advocate who addressed the Board members in an offensive and demeaning manner.
Attorney's fees were justified as the advocate's conduct went "far beyond" a frivolous filing.
(Marin, at p. 3.)
As Government Code section 11455.30, subdivision (a) incorporates the elements of
the prior NLRB standard of "only where the charge is without arguable merit and was brought
in bad faith" (Chula Vista I, supra, PERB Decision No. 256, at p. 9) and the "bad faith" actions
(2)
(Emphasis added.)
18

described in Government Code section 11455.30, subdivision (a) and the existing case law
incorporates conduct which is vexatious, dilatory, and an abuse of process, we find the
standard set forth in Government Code section 11455.30, subdivision (a) is an appropriate
framework for determining whether sanctions ( attorneys fees) should be awarded. Thus,
PERB will award attorney fees only if the charge is without arguable merit and pursued in bad
faith. 17 For the purposes of this test, the term "bad faith" includes conduct that is dilatory,
vexatious or otherwise an abuse of process. To allow a less restrictive standard that a moving
party only need to show that the case had no arguable merit, would be to differentiate PERB
cases as having some need for a less restrictive standard from that which is commonly
accepted in civil courts. No such justification has ever been set forth in any PERB decision.
In the instant case, the ALJ admitted that the Association had not violated a Board
order or repetitively filed charges that had been dismissed. However, the ALJ found that:
The evidence is substantial that the City has long had a policy, by
established practice, requiring that firefighters obtain and
maintain Class B driver's licenses and that they may be called
upon to serve as relief drivers. The Association has long been
aware of the policy, and its arguments to the contrary, both
factual and legal, are without any arguable merit.
(Proposed dee. at p. 16, emphasis added.) While the ALJ found the Associations' arguments to
be "without any arguable merit," she stopped short of designating them as being made with
some subjective "bad faith" intent. Based on our review of the record, we find that the
17 In Los Rios College Federation a/Teachers, Local 2279 (Deglow), supra, the Board
stated that "the Board may order sanctions only after it has ordered the party to cease and
desist from filing frivolous charges over the same factual and legal issues previously addressed
by the Board." However, Government Code section 11455.30, subdivision (a) does not require
repetitive filing of frivolous charges before attorneys fees may be awarded. Accordingly,
PERB has the authority to award attorneys fees based on a single filing of a frivolous charge in
bad faith.
19
described in Government Code section 11455.30, subdivision (a) and the existing case law
incorporates conduct which is vexatious, dilatory, and an abuse of process, we find the
standard set forth in Government Code section 11455.30, subdivision (a) is an appropriate
framework for determining whether sanctions (attorneys fees) should be awarded. Thus,
PERB will award attorney fees only if the charge is without arguable merit and pursued in bad
faith."For the purposes of this test, the term "bad faith" includes conduct that is dilatory,
vexatious or otherwise an abuse of process. To allow a less restrictive standard that a moving
party only need to show that the case had no arguable merit, would be to differentiate PERB
cases as having some need for a less restrictive standard from that which is commonly
accepted in civil courts. No such justification has ever been set forth in any PERB decision.
In the instant case, the ALJ admitted that the Association had not violated a Board
order or repetitively filed charges that had been dismissed. However, the ALJ found that:
The evidence is substantial that the City has long had a policy, by
established practice, requiring that firefighters obtain and
maintain Class B driver's licenses and that they may be called
upon to serve as relief drivers. The Association has long been
aware of the policy, and its arguments to the contrary, both
factual and legal, are without any arguable merit.
(Proposed dec. at p. 16, emphasis added.) While the ALJ found the Associations' arguments to
be "without any arguable merit," she stopped short of designating them as being made with
some subjective "bad faith" intent. Based on our review of the record, we find that the
" In Los Rios College Federation of Teachers, Local 2279 (Deglow), supra, the Board
stated that "the Board may order sanctions only after it has ordered the party to cease and
desist from filing frivolous charges over the same factual and legal issues previously addressed
by the Board." However, Government Code section 11455.30, subdivision (a) does not require
repetitive filing of frivolous charges before attorneys fees may be awarded. Accordingly,
PERB has the authority to award attorneys fees based on a single filing of a frivolous charge in
bad faith.
19

Association did not pursue this unfair practice charge with bad faith. Therefore, the award
of
attorney's fees must be reversed.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-262-M are
hereby DISMISSED WITHOUT LEAVE TO AMEND. The administrative law
judge's
order
that Alhambra Firefighters Association, Local 1578 pay to the City
of
Alhambra reasonable
attorney's fees and costs incurred in defending the unfair practice charge and complaint is
hereby REVERSED.
Members McKeag and Dowdin Calvillo joined in this Decision.
20
Association did not pursue this unfair practice charge with bad faith. Therefore, the award of
attorney's fees must be reversed.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-262-M are
hereby DISMISSED WITHOUT LEAVE TO AMEND. The administrative law judge's order
that Alhambra Firefighters Association, Local 1578 pay to the City of Alhambra reasonable
attorney's fees and costs incurred in defending the unfair practice charge and complaint is
hereby REVERSED.
Members Mckeag and Dowdin Calvillo joined in this Decision.
20