Metropolitan Water District of Southern California (PERB 2055M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
METROPOLITAN WATER DISTRICT
SUPERVISORS' ASSOCIATION,
Charging Party,
V.
METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA,
Respondent.
Case No. LA-CE-466-M
PERB Decision No. 2055-M
August 26, 2009
Appearance: Lawrence Rosenzweig, Attorney, for Metropolitan Water District Supervisors'
Association.
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board (PERB or Board) on appeal by the Metropolitan Water District Supervisors'
Association (Association)
of
a Board agent's dismissal
of
its unfair practice charge. The
charge alleged that the Metropolitan Water District of Southern California (District) violated
the Meyers-Milias-Brown Act (MMBA) 1 by refusing to bargain over both its decision "to take
away District vehicles from members
of
the bargaining unit" and the effects
of
the decision.
The Board agent dismissed the charge after finding the Association had waived its right to
bargain over the alleged change.
The Board has reviewed the dismissal and the record in light of the Association's
appeal and the relevant law. Based on this review, the Board affirms the dismissal
of the
charge for the reasons discussed below.
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

BACKGROUND
On May 25, 2006, the District sent a memorandum to the representatives of the
District's recognized employee organizations, including Association President Don Forsyth,
informing them of proposed revisions to the District's operating policies. One of the policies
listed in the memorandum was Operating Policy F-13, Long-Term Vehicle Assignment.
Copies of the listed operating policies were attached to the memorandum. The memorandum
stated in closing:
If you would like to meet to discuss any of the revisions, please
notify me at your earliest convenience. Otherwise, Management
will assume that your bargaining unit has no questions or
comments on these Operating Policies.
It is undisputed that the Association and the District did not meet and confer regarding
Operating Policy F-13 before its implementation by the District on October 12, 2006. The
charge does not allege that the Association requested to meet and confer about Operating
Policy F-13 at any time between May 25, 2006, and June 16, 2008.
Operating Policy F-13 "establishes the policies and criteria for the long-term
assignment and use of Metropolitan vehicles." In general, the operating policy allows long
term vehicle assignments when an employee's duties require him or her to travel directly from
home to the worksite or an emergency location and long-term assignment would bemore
efficient than checking out a pool vehicle as needed. The operating policy includes the
following specific policies:
2. 	Long-term vehicle assignments are reviewed as part of the
annual budget cycle.
5. 	Long-term vehicle assignments are not renewed
automatically and may be terminated by management at
any time.
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6.	
Upon expiration
of
the Long-Term Vehicle Assignment,
the operator is to immediately cease use and return
custody
of
the vehicle to Fleet Management.
On June 16, 2008, the District notified the Association that it was terminating the long
term vehicle assignments
of
some supervisory unit members pursuant to Operating Policy
F-13. That same day, the Association requested in writing to meet and confer over "both the
decision to take away the vehicles and the effects
of
such a decision." By letter
of
June 25,
2008, the District declined the Association's bargaining demand, citing the Association's
failure to request to meet and confer over Operating Policy F-13 before it was implemented.
The Board agent sent the Association a warning letter indicating that the allegations in
the charge showed the Association had waived its right to bargain over Operating Policy F-13
by not demanding to meet and confer over the policy prior to its implementation. In a
subsequent phone conversation with the Board agent, the Association's counsel asked the
Board agent to dismiss the charge so the Association could file an appeal with the Board.
Based on this conversation, the Board agent dismissed the charge.
DISCUSSION
In determining whether a party has violated MMBA section 3505 and PERB Regulation
32603(c
)2
by refusing or failing to meet and confer in good faith, PERB utilizes either the "per
se" or "totality
of
the conduct" test, depending on the specific conduct involved and the effect
of
such conduct on the negotiating process. (Stockton Unified School District (1980) PERB
Decision No. 143.)3 An absolute refusal to meet and confer on a subject within the scope
of
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
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is a per se violation. (Sierra Joint Community College District ( 1981) PERB
Decision No. 179.) Policies allowing employees to use employer-owned vehicles to commute
to and from work fall within the scope of representation because the savings employees realize
from not commuting in their own vehicles is a part of their compensation. (Los Angeles
Unified School District (2002) PERB Decision No. 1501; West Covina Unified School District
(1993) PERB Decision No. 973; State of California (Department of Transportation) (1983)
PERB Decision No. 333-S.) Therefore, a refusal to bargain over a vehicle use policy is a per
se violation of the duty to meet and confer in good faith.
It is undisputed that on June 25, 2008, the District refused to bargain over its
termination of long-term vehicle assignments for some supervisory unit members. However, it
is axiomatic that a refusal to bargain is not an unfair practice if the refusing party had no duty
to bargain. 	We find the District had no obligation to bargain over the terminations because the
Association had waived its right to bargain over Operating Policy F-13. 4
When an employer gives an employee organization written notice of a proposed change
to a matter within the scope of representation and provides reasonable opportunity to meet and
confer over the change before implementation, the employee organization's failure to request
bargaining constitutes a waiver of its right to meet and confer over the change. (Stockton
Police Officers' Assn. v. City of Stockton (1988) 206 Cal.App.3d 62, 66; Stationary Engineers
Waiver is an affirmative defense that must be proven by the party asserting it.
(Regents of the University of California (2004) PERB Decision No. 1689-H.) When a
respondent can establish an affirmative defense as a matter of law based on undisputed facts,
"the charge must be dismissed even when the charging party has otherwise established a prima
facie case." (Long Beach Community College District (2003) PERB Decision No. 1568.) It is
undisputed that the Association did not demand to bargain over Operating Policy F-13 prior to
its implementation in October 2006. Thus, the issue of waiver based upon this undisputed fact
is purely a legal one that PERB may consider at the charge stage.
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v. San Juan Suburban Water Dist. (1979) 90 Cal.App.3d 796, 802; Santee Elementary School
District (2006) PERB Decision No. 1822.)
The District provided the Association with written notice of its intent to adopt
Operating Policy F-13 almost five months before it was implemented. The charge does not
allege that the Association requested to meet and confer over Operating Policy F-13 prior to its
implementation or, indeed, at any time prior to June 16, 2008. Therefore, by its inaction, the
Association waived its right to meet and confer over Operating Policy F-13.
In its charge, the Association points out that the District's May 25, 2006 memorandum
asked for "questions or comments" from employee organizations regarding the proposed
operating policy changes, suggesting that the memorandum did not express a willingness to
meet and confer over the changes. However, the memorandum also stated the District was
willing to "meet to discuss" any of the proposed changes. Further, once an employer gives
appropriate notice of a proposed change, it is not required to invite bargaining. (Stockton
Police Officers' Assn., supra, 206 Cal.App.3d at pp. 65-66; State of California (Board of
Equalization) (1998) PERB Decision No. 1258-S.) Thus, the District's May 25, 2006
memorandum was sufficient to trigger the Association's duty to request to meet and confer
over the change.
On appeal, the Association contends that even if it waived its right to meet and confer
over the District's decision to implement Operating Policy F-13, it did not waive its right to
meet and confer over the effects of the decision. In support of this argument, the Association
cites Santee Elementary School District, supra. That case, however, involved rather unique
factual circumstances that are not present in the instant case.
In Santee Elementary School District, supra, the district provided notice of its intent to
modify a board policy regarding concerted activity. The revised policy prohibited work
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stoppages and directed the district superintendent to "develop a written plan to 'delineate
actions to be taken in the event of a strike or threatened strike'." The charging party employee
organization discussed the revised policy and decided not to request bargaining over it. The
Board held that the employee organization waived its right to bargain over the policy.
Around the same time it received the revised policy, the employee organization
received a draft of the superintendent's regulation implementing the policy. The regulation set
forth in detail the consequences to bargaining unit members of participating in prohibited work
stoppages. The employee organization demanded to bargain over the regulation before it was
adopted by the district's governing board. The Board held that the employee organization's
failure to demand bargaining over the policy change did not constitute a waiver of its right to
bargain over the effects of the change.
The Board's holding on the effects bargaining waiver was based on the fact that it was
impossible for the employee organization to determine the foreseeable effects of the policy
change on bargaining unit members from the policy itself, which provided that the
consequences of violating the policy were to be delineated in a separate regulation. Only after
it actually saw the regulation could it determine foreseeable effects and decide whether to
demand bargaining over them. Thus, in that case, the notice of the policy change without the
corresponding implementing regulation did not clearly inform the employee organization of
the nature and scope of the proposed change. (See Lost Hills Union Elementary School
District (2004) PERB Decision No. 1652 ["an employer, to fulfill its bargaining obligation,
must provide a notice which is communicated in a manner which clearly informs the recipient of
the proposed change" (internal quotations and citation omitted)].)
Here, the District provided a copy of Operating Policy F-13 along with the May 25,
2006 memorandum. The operating policy clearly states that long-term vehicle assignments are
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to be reviewed on an annual basis, that management may terminate an assignment at any time,
and that once an assignment is terminated, an employee is to immediately relinquish the
assigned vehicle to the District. Thus, the notice and attached policy provided sufficient
information for the Association to determine the foreseeable effects of the proposed policy on
supervisory unit members, including any effects resulting from termination of a long-term
vehicle assignment. Accordingly, the Association was obligated to demand to bargain over
effects prior to implementation and its failure to do so constituted a waiver of its right to meet
and confer over foreseeable effects of the District's decision to adopt Operating Policy F-13.
In sum, the charge failed to establish that the District had a duty to bargain with the
Association over terminating long-term vehicle assignments pursuant to Operating Policy
F-13. Therefore, the District did not commit an unfair practice by refusing the Association's
demand to meet and confer over the terminations.
ORDER
The unfair practice charge in Case No. LA-CE-466-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
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