City of Guadalupe (PERB 2170M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SEIU LOCAL 620,
Charging Party, Case No. LA-CE-595-M
V. PERB Decision No. 2170-M
CITY OF GUADALUPE, February 28, 2011
Respondent.

Appearance: Bruce Corsaw, Interim Executive Director, for SEIU Local 620.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION

DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by SEIU Local 620 (SEIU) of a Board agent’s dismissal
(attached) of its unfair practice charge. The charge alleged that the City of Guadalupe (City)
violated the Meyers-Milias-Brown Act (MMBA)! when it unilaterally imposed furloughs on
City employees represented by SEIU. On February 22, 2010, a personnel commission
convened pursuant to the final step of the grievance procedure in the parties’ memorandum of
understanding (MOU) and issued a final and binding decision concluding that the furloughs
did not violate the MOU. The Board agent dismissed the charge on the ground that PERB
must defer to the commission’s decision because it is not repugnant to the MMBA.

The Board has reviewed the dismissal and the record in light of SEIU’s appeal and the
relevant law. Based on this review, the Board finds the Board agent’s warning and dismissal
letters to be well-reasoned and in accordance with applicable law. The Board therefore adopts

them as the decision of the Board itself, as supplemented by the discussion below.

' The MMBA is codified at Government Code section 3500 et seq.

DISCUSSION
2
The scope
of
PERB' s review
of
an arbitration award is limited to whether the award is
repugnant to the purposes
of
the MMBA. (PERB Reg. 32620(b)(6).2) Repugnancy review is
not a traditional appeal procedure; therefore, PERB may not conduct an independent review of
the arbitrator's decision. (Ventura County Community College District (2009) PERB Decision
No. 2082.) Accordingly, repugnancy review does not allow parties to re-litigate before PERB
matters resolved by the arbitration award. (Ibid.)
SEIU argues on appeal that the personnel commission decision was not based
on
the
facts provided at the hearing and therefore PERB should conduct its own hearing on the issue
of
whether the City's imposition
of
furloughs violated the MOU. Essentially, SEIU seeks to
re-litigate the matters it presented to the personnel commission. Because PERB has no
authority to conduct an independent review
of
the personnel commission's decision,
and
SEIU
has not alleged facts demonstrating that the decision is repugnant to the MMBA, we affirm the
Board agent's dismissal
of
the charge.
ORDER
The unfair practice charge in Case No. LA-CE-595-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER,.Go,ernor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
San Francisco Regional Office
1330 Broadway, Suite 1532
Oakland, CA 94612-2514
Telephone: (510) 622-1020
Fax: (510) 622-1027 F
August 12, 2010
Bruce Corsaw, Field Services Director/
Interim Executive Director
SEIU Local 620
2345 S. Broadway, Suite C
Santa Maria, CA 93454
Re: 	SEIU Local 620 v. City of Guadalupe
Unfair Practice Charge No. LA-CE-595-M
DISMISSAL LETTER
Dear Mr. Corsaw:
The above-referenced unfair practice charge was filed with the Public Employment Relations
BggirdJ:PERB or Board) on February 16, 2010. 	SEIU Local 620 (SEIU or_<:::harging Party)
alleges that the City of Guadalupe (City or Respondent) violated section 3504 of the Meyers-
Milias-Brown Act (MMBA or Act) 1 by unilaterally imposing furloughs over a three-month
period of time.
Charging Party was informed in the attached Warning Letter dated May 17, 2010, that the
above-referenced charge did not state a prima facie case. Charging Party was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, the charge should be amended. Charging Party was further advised
that, unless Charging Party amended the charge to state a prima facie case or withdrew it prior
to May 24, 2010, the charge would be dismissed.
On May 19, 2010, Charging Party filed an amended charge via facsimile transmission. 	The
amended charge consists of a one-page letter, iabeled "Statement of Charge," attached to a
PERB unfair practice charge form marked "amended."
"Statement of Charge"
The "Statement of Charge" states verbatim in pertinent part:
First, the Personnel Committee does have final authority when
acting in accordance to the facts supplied at the hearing. In this
case the facts are that to this date Local 620 has not received a
final ruling signed by the committee and it is our understanding
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

LA-CE-595-M
August 12, 2010
Page 2
that the decision by 2
of
the 3 committee members was based on
economic concerns for the City and not based on the facts
provided at the hearing. This alone constitutes reasonable
evidence that this issue should be heard by an un-bias PERB
hearing officer.
Local 620 is prepared to subpoena all 3 committee members to
the hearing to establish that: A) the decision
of
the committee
has yet to be finalized; B) the non-signed decision was not based
on statute or facts, but by concern over the availability
of
the City
to compensate effected employees for the wrongful violation
of
their MOU. and C) that the unilateral imposing
of
the 20%
furlough did in fact violate our MOU by the City Council.
Local 620 is requesting that PERB recognizes the fact that we
have been diligently attempting to resolve this matter with the
City in compliance with our :MOU since April 3, 2009 and since
February 3, 2010 with PERB
..
It
is our position that this issue
needs to be heard by an appointed PERB Hearing Officer and that
we be given the opportunity to make our case to and receive a
meaningful decision to this issue based on the facts provided at a
PERB hearing and not by personal concerns over the City's
finances.
In regards to the timeliness issue as state in our February 25,
2010 letter to you, we have continuously work to resolve this
issue as outlined by our MOU and that we are timely based on
that fact and the fact that we have not received an official
response from the Personnel Committee signed by that committee
as provided in our MOU.
If
you still maintain that we are not
timely or that our complaint lacks merit then I hereby appeal that
decision and request that the issue
of
timliness and merit be
considered at the PERB Board level.
...
MOU Provisions
As stated in the Warning Letter, Article 10.4
of
the MOU governs hours
of
work
and overtime.
It
provides:
The normal working schedule of full-time employees shall be
eight (8) hours of pay or forty (40) hours per week.
Article 7 "GRIEVANCES/DISPUTES" of the MOU provides three steps (informal, formal,
and appeal to City Administrator) before the matter may be appealed to the Personnel
Commission (Commission). 	Step Four provides in pertinent part:

LA-CE-595-M
August 12, 2010
Page 3
Selection of Personnel Committee
The Personnel Commission shall be appointed for each grievance
and shall consist of a member appointed by the City
Administrator, a member appointed by the union and a member
mutually agreed upon by the City and the union.
Unless the parties agree otherwise, a hearing shall be commenced
no later than twenty-eight days from selection of the Personnel
Commission. An independent hearing officer selected by mutual
consent of the City and the union shall preside over the hearing.
However, the hearing officer shall not participate in the final
determination or the deliberations of the Personnel Commission.
Personnel Committee's Authority
Those issues which directly relate to alleged violations of this
Memorandum of Understanding or City ordinances, resolutions
and written policies related to personnel policies and working
conditions shall be subject to review by the Personnel
Commission ...
Hearing Procedure
Except as indicated in this Article, the hearing shall be conducted
in accordance with the California Code of Civil Procedure and
the California Evidence Code. In addition, the hearing officer
may allow the admission of hearsay evidence in the interest of
justice. The hearing shall be conducted in private unless a public
hearing is requested by the employee or the City.
Decision
After a hearing, an opportunity to present evidence, and an
opportunity to present such closing arguments as may be
appropriate, the matter shall be submitted to the Personnel
Commission for deliberation. The Personnel Commission will
make a reasonable effort to issue his/her decision within fourteen
(14) days after the conclusion of the hearing. The decision shall
be in writing and set forth the Personnel Commission's findings
of fact, reasoning and conclusions on the issues submitted. The
decision shall be final and binding on the parties.

LA-CE-595-M
August 12, 2010
Page4
Discussion
The May 1
7, 2010 Warning Letter contained a full discussion regarding the statute
of
limitations and deferral to arbitration/repugnancy review issues. The letter concluded that: (1)
the unfair practice was timely because the limitations period was equitably tolled for the period
that Charging Party pursued the grievance through the parties' grievance procedure
culminating in the Commission's February 2010 decision, and (2) the parties' Step Four
process appears to satisfy the requirement
of
a binding process, albeit not a traditional labor
arbitration process. The Warning Letter went on to state:
Like arbitration, the Personnel Commission process encompasses
the following: 	the Commission has the authority to issue a final
and binding decision; the hearing is conducted in accordance with
the Code
of
Civil Procedure and the California Evidence Code;
the parties have an opportunity to present evidence and closing
arguments; and the parties mutually select the third member
of
the Commission, as well as an independent hearing officer. The
participation in, and completion of, this process therefore appears
to preclude PERB from determining whether a prima facie case
has been stated in the unfair practice charge, unless the
Commission's decision is found to be repugnant to the Act.
Charging Party was provided extensive rationale to support the conclusion that PERB
was
precluded from processing the case further and informed Charging Pariy that it could
seek
to
amend its charge to contest PERB's deferral determination and/or file a repugnancy
claim
pursuant to PERB Regulation 32661. 2 With regard to the issue
of
a repugnancy claim,
2 PERB Regulations are codified at California Code
of
Regulations, title 8,
section
31001 et seq. PERB Regulation 32661 states in pertinent part:
(a) An unfair practice charge concerning conduct subject to
Government Code Section 3514.5(a)(2) or 3541.5(a)(2), or
subject to final and binding arbitration pursuant to a collective
bargaining agreement for parties governed by the TEERA,
MMBA, HEERA, Trial Court Act or Court Interpreter Act, may
be filed based on a claim that the settlement or arbitration award
is repugnant to the applicable Act.
(b) The charge shall comply with the requirements
of
Section
32615. It shall allege with specificity the facts underlying the
charging party's claim that the arbitrator's award is repugnant
to the purposes
of
the applicable Act. 	[Emphasis added.]
( c). In reviewing the charge to determine whether a complaint
shall issue, the Board agent shall have all of the powers and

LA-CE-595-M
August 12, 2010
Page 5
Charging Party was informed that it must allege with specificity the facts underlying its claim
that the Commission's award is repugnant to the purposes
of
the MMBA as required by PERB
Regulation 32661.
Charging Party's amendment concedes that the Commission "does have final authority when
acting in accordance to the facts supplied at the hearing." However, Charging Party provides
no facts to support its assertion that the Commission's decision is not final because it was not
signed. 	Nothing in the parties' procedure requires that the decision be signed. In addition, the
decision was issued utilizing the following memorandum format where individual signatures
were not required:
CITY OF GUADALUPE
GRIEVANCE MEMORANDUM
TO: 	City Manager & SEIU Local 620
FROM: 	Guadalupe Personnel Commission
SUBJECT: 	Grievance Appeal Filed by SEIU
Date: 	February 22, 2010
In the second paragraph, the decision named the participants and identified the Commissioner
that dissented. Therefore, the fact that the decision was not signed, which is neither required
by
the MOU nor by the format in which it was issued, does not invalidate the result reached by the
Commission.
As to the repugnancy issue, Charging Party only states that the decision was based on economic
concerns for the City and not based on statute or facts provided at the hearing. 	However, the
Commission's decision contains the following pertinent statementsiconsiderations which rebut
Charging Party's claims. First, the decision states that "The facts and issues presented for a
decision in this case ask whether it was a violation
of
the MOU to establish a work time
furlough." Second, the decision discusses the management rights clause and Article 10.4.
Third, the decision recites the history leading up to the implementation of the furloughs,
including the City's budget issues, various presentationsimeetings, and meet and confer
sessions. Fourth, the decision states MMBA meet and confer requirements. Based
upon
the
duties specified 	Section 32620. 	Board agent's issuance of a
complaint under this section shall not be appealable to the Board
itself except as provided in Section 32360.
(d) The Board itself may, at any time, direct that the record be
submitted to the Board itself for decision.

LA-CE-595-M
August 12, 2010
Page 6
foregoing, the Commission reached the conclusion that (1) the management rights clause
allowed the City to alter Article 10.4 of the MOU due to legitimate business reasons, and (2) the
MOU had not been violated by the implementation of mandatory furloughs from April 3 until
June 26, 2009.
In this case, it is clear that the Commission was presented with and considered all of the
evidence relevant to the instant charge. (Los Angeles Unified School District (1982) PERB
Decision No. 218.) In addition, "the arbitral and statutory issues are so intertwined that
resolution of one necessarily resolves the other. (Fremont Unified School District (1994) PERB
Decision No. 1036) The possibility that the Board may have reached a different conclusion
does not render the award unreasonable or repugnant. (Los Angeles Unified School District,
supra, PERB Decision No. 218.) Even ifthere is room for disagreement with the conclusions
reached by the Commission, they are not unreasonable or repugnant to the purposes of the
MMBA, nor are they "palpably wrong." (Fremont Unified School District, supra, PERB
Decision No. 1036.) For these reasons and those contained in the May 17, 2010, Warning
Letter, the unfair practice charge is dismissed.
Right to Appeal
Pursuant to PERB Regulations, Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board. 	·
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811 	124
(916) 322-8231
FAX: (916) 327-7960

LA-CE-595-M
August 12, 2010
Page 7
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with
the
Board
an
original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs, tit. 8, § 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served
upon
a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in v1hich to file a document with the Board itself,
must
be
in writing and filed with the Board at the previously noted address. A request for an extension
must
be
filed at least three (3) calendar days before the expiration
of
the time required
for
filing the document. The request must indicate good cause for and,
if
known, the
position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final
when
the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
______________
_
Anita I. Martinez
Regional Director
Attachment
cc: David M. Fleishman, City Attorney

STATE
OF
CALIFORNIA 	ARNOLD
SCHWARZENEGGER,
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
p
San
Francisco Regional Office
1330
Broadway, Suite 1532
Oakland,
CA
94612-2514
Telephone: (510) 622-1020
Fax:
(510) 622-1027
f
May17,2010
Bruce Corsaw, Field Services Director/
Interim Executive Director
SEIU Local 620
2345 S. Broadway, Suite C
Santa Maria, CA 93454
Re: 	SEIU Local 620
v.
City
of
Guadalupe
Unfair Practice Charge No. LA-CE-595-M
WARNING LETTER
Dear Mr. Corsaw:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 16, 2010. SEIU Local 620 (SEIU or Charging Party)
alleges that the City
of
Guadalupe (City or Respondent) violated section 3504
of
the Meyers-
Milias-Brown Act (MMBA or Act) 1 by unilaterally imposing furloughs over a three-month
period
of
time.
BACKGROUND
My investigation revealed the following alleged facts. 	SEIU is the exclusive representative
of
the City's employees. The City and SEIU have been parties to a memorandum
of
understanding (MOU) since January 12, 2007.
1.	
MOU Provisions
Article 10.4
of
the MOU governs hours
of
work and overtime. It provides:
The normal working schedule
of
full-time employees shall be
eight (8) hours of pay or forty (40) hours per week.
Article 7 "GRIEVANCES/DISPUTES" of the MOU provides three steps (informal, formal,
and appeal to City Administrator) before the matter may be appealed to the Personnel
Commission (Commission). Step Four provides in pertinent part:
1 The MMBA is codified at Government Code section 3500 et seq. 	The text
of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

LA-CE-595-M
Mayl7,2010
Page 2
Selection
of
Personnel Committee
The Personnel Commission shall be appointed for each grievance
and shall consist
of
a member appointed by the City
Administrator, a member appointed by the union and a member
mutually agreed upon by the City and the union.
Unless the parties agree otherwise, a hearing shall be commenced
no later than twenty-eight days from selection
of
the Personnel
Commission.	
At1
independent hearing officer selected by mutual
consent
of
the City and the union shall preside over the hearing.
However, the hearing officer shall not participate in the final
determination or the deliberations
of
the Personnel Commission.
Personnel Committee's Authority
Those issues which directly relate to alleged violations
of
this
Memorandum
of
Understanding or City ordinances, resolutions
and written policies related to personnel policies and working
conditions shall be subject to review by the Personnel
Commission
...
Hearing Procedure
Except as indicated in this Article, the hearing shall be conducted
in accordance with the California Code
of
Civil Procedure and
the California Evidence Code. In addition, the hearing officer
may allow the admission
of
hearsay evidence in the interest
of
justice. The hearing shall be conducted in private unless a public
hearing
is
requested by the employee or the City.
Decision
After a hearing, an opportunity to present evidence, and an
opportunity to present such closing arguments as may be
appropriate, the matter shall be submitted to the Personnel
Commission for deliberation. The Personnel Commission will
make a reasonable effort to issue his/her decision within fourteen
(14) days after the conclusion of the hearing. The decision shall
be in writing and set forth the Personnel Commission's findings
of fact, reasoning and conclusions on the issues submitted. The
decision shall be final and binding on the parties.

LA-CE-595-M
May17,2010
Page 3
2. 	City's Financial Picture and Furloughs
Due to a dismal fiscal outlook, including a projected negative fund balance
of
over $350,000,
the City Council approved mandatory furloughs for City employees consisting
of
four-day
work weeks from April 3, 2009 until June 26, 2009. The decision by the Council was
made
on
February 10, 2009, with the knowledge that meet and confer obligations arose regarding
the
impact
of
the furlough decision.
On February 13, 2009, SEIU notified the City that implementing mandatory furloughs
was
a
violation
of
the MOU and requested to meet with the City to discuss actions that could
be
taken to reduce the need for furloughs. The parties met on March 6 and 19, 2009. On
April
1,
2009, the City notified SEIU that: (1) it had made offers to SEIU that had
been rejected; (2) it
was the City's position that the decision to furlough employees was a management right as per
the management rights article in the MOU; and (3) the parties were at impasse. 	In response,
SEIU notified the City that the parties were not at impasse and that
"if
the City
implements
any
furloughs or reductions
of
hours without a mutual agreement than [sic] Local 620 will
immediately invoke Article 7 Grievances/Disputes
....
"
The City imposed the furloughs commencing April 3, 2009 and ending on June 26, 2009.
3. 	SEIU's Grievance and Personnel Commission Decision
SEIU initiated a grievance on or about April
1,
and April 15, 2009, citing the City's violation
of
a number
of
MOU articles, including Article 10.4. Upon the City's denial
of
the
grievance
at Step Three on or about June 11, 2009, SEIU gave formal notice on June 16, 2009,
that
it
wished to submit the grievance to Step Four.
The Commission held the hearing on December 16, 2009. At the hearing, both SEIU
and
the
City presented their respective positions regarding the furlough issue. On February 22,
2010,
the Commission issued its written decision. The majority
of
the Commission found in
favor of
the City.
DISCUSSION
1.	
Statute
of
Limitations
The charging party's burden includes alleging facts showing that the unfair practice
charge
was
timely filed within six months
of
when the charging party knows, or should have known,
of
the
conduct underlying the charge. (Gavilan Joint Community College District (1996)
PERB
Decision No. 1177.)
In Long Beach Community College District (2009) PERB Decision No. 2002, p. 15, decided
under the Educational Employment Relations Act (EERA), the Board held that the six-month
statutory limitations period is equitably tolled while parties use a "non binding dispute
resolution procedure" if: (1) the procedure is contained in a written agreement negotiated by

LA-CE-595-M
Mayl7,2010
Page 4
the parties; (2) the procedure is being used to resolve the same dispute that
is
the subject
of
the
unfair practice charge; (3) the charging party reasonably and in good faith pursues the
procedure; and (4) tolling does not frustrate the purpose
of
the statutory limitation period by
causing surprise or prejudice to the respondent. (Ibid.) In Solano County Fair
Association
(2009) PERB Decision No. 2035-M, the Board applied the equitable tolling doctrine to cases
under MMBA when a party uses
"a
bilaterally agreed upon dispute resolution procedure."
This slight change in language seems to suggest that the Board in Solano intended that
the
equitable tolling doctrine applies to both binding and non-binding arbitration under MMBA.
In a recent decision, the Board declined
to
apply the equitable tolling doctrine to a case under
BERA where the parties' agreement provided for binding arbitration. (Los Angeles
Community
College District (2009) PERB Decision No. 2059.) The Board noted that EERA provides for
both statutory and equitable tolling. (Ibid.) Statutory tolling applies when parties may avail
themselves
of
binding arbitration, whereas equitable tolling applies
if
only non-binding
arbitration is available. (Ibid.)
However, clarification of this rule is provided by Trustees
of
the California State University
(San Jose) (2009) PERB Decision No. 2032-H. In that case, decided under the Higher
Education Employer-Employee Relations Act (HEERA), the Board specifically held
that
the
equitable tolling doctrine (as articulated in Long Beach Community College District,
supra,
PERB Decision No. 2002) applies to cases under HEERA where the parties' grievance
procedure ends in binding arbitration,
as
well as continuing to apply to those situations
where
the grievance procedure ends in non-binding arbitration.· HEERA, like the MMBA, does not
provide for statutory tolling. Accordingly, Trustees
of
the California State University
(San Jose), supra, PERB Decision No. 2032-H, read together with Solano County Fair
Association, supra, PERB Decision No. 2035-M, establish that the equitable tolling doctrine
applies under the MMBA when the parties are pursuing a bilaterally agreed upon dispute
resolution procedure-regardless
of
whether the procedure culminates in binding or
non-
binding arbitration-so long as the other factors listed in Long Beach Community
College
District, supra, PERB Decision No. 2002 are also established.
In
Nevada Irrigation District (2009) PERB Decision No. 2052-M, the Board confirmed that
the tolling doctrine only applies when the unfair practice charge concerns the same dispute
as
the grievance which the Charging Party alleges triggers the tolling doctrine. In Nevada
Irrigation District, supra, PERB Decision No. 2052-M, the Union filed an unfair practice
charge alleging that the employer had made an unlawful unilateral change to terms and
conditions of employment whereas the grievance concerned the termination of an employee.
The Board held they were not the same dispute for the purposes of the tolling doctrine. 	(Ibid.)
This is not an issue in the instant case because here the grievance decided by the Commission
and the unfair practice charge concern the same issue: the implementation of mandatory
furloughs.
The instant charge was filed on February 16, 2010. 	SEIU had notice on February 10, 2009,
regarding the Council's decision. Furloughs were implemented on April 3, 2009, and ended on

LA-CE-595-M
May
17,2010
Page 5
June 26, 2009. But for the tolling doctrine, allegations occurring prior to August 10,
2009
would
be
untimely. 	However, between April I (or 15th), 2009, and February 22, 2010,
SEIU
was pursuing its grievance under the parties' MOU, a bilaterally agreed-upon dispute 	·
resolution process which culminated in binding arbitration. 	The grievance concerned
the
City's implementation
of
mandatory furloughs between April 3
-June
26, 2009, the
same
issue
as is
presented by this unfair practice charge. 	Thus, the limitations period is equitably
tolled
for the period that the grievance progressed through the grievance procedure, culminating
in
the Commission's February 2010 decision.
2. 	Deferral to Arbitration/Repugnancy Review
PERB Regulation 32620(b)(6)2 requires the Board agent processing the charge to:
Place the charge in abeyance
if
the dispute arises under MMBA,
HEERA, TEERA, Trial Court Act or Court Interpreter Act and is
subject to final and binding arbitration pursuant to a collective
bargaining agreement, and dismiss the charge at the conclusion
of
the arbitration process unless the charging party demonstrates that
the settlement or arbitration award is repugnant to the purposes
of
MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter
Act, as provided in section 32661.
As noted above, PERB Regulation 32620(b )(6) requires "final and binding arbitration"
for
an
abeyance determination.
In
this case, the parties' Step Four process appears to satisfy
the
3
requirements
of
a binding process, albeit not a traditional labor arbitration process.
	Like
arbitration, the Personnel Commission process encompasses the following: 	the
Commission
has the authority to issue a final and binding decision; the hearing is conducted in
accordance
with the Code
of
Civil Procedure and the California Evidence Code; the parties have
an
opportunity to present evidence and closing arguments; and the parties mutually select
the
third
member
of
the Commission, as well as an independent hearing officer. The participation in,
and completion of, this process therefore appears to preclude PERB from determining
whether
a prima facie case has been stated in the unfair practice charge, unless the
Commission's
decision is found to be repugnant to the Act.
2 PERB Regulations are codified at California Code
of
Regulations, title 8,
section
31001 et seq.
3 The term "arbitration" is simply defined as, "[t]he reference of a dispute to an
impartial (third) person chosen by the parties to the dispute who agree inadvance to
abide by
the arbitrator's award issued after a hearing at which both parties have an opportunity
to be
heard." (Black's LawDict. (5th ed. 1979) p.96, col. 1.)

LA-CE-595-M
May17,2010
Page 6
Although
at
this point
in
time, Charging Party has not asserted that the Commission's February
22,
201
0 decision
is
repugnant to the MMBA. The following are the applicable criteria for
such a determination.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a, the Board
adopted the post-arbitration deferral standard enunciated by the NLRB in Spielberg
Manufacturing Company, supra, 112 NLRB 1080 and Collyer Insulated Wire, supra, 192
NLRB
83
7.
	Under this standard, the Board will exercise its discretionary jurisdiction to
dismiss and defer a complaint to the arbitrator's award if: 	(1) the matters raised in the unfair
practice charge were presented to and considered by the arbitrator; (2) the arbitral proceedings
were fair and regular; (3) all parties to the arbitration proceedings agreed to be bound
by the
arbitral award; and (4) the award is not repugnant to the purposes
of
the Act.
The Board's repugnancy review in Los Angeles Unified School District (1982) PERB Decision
No. 218 is instructive
as
to what facts are relevant to a unilateral change allegation. The
arbitration award in favor
of
the District's unilateral change
of
bus parking locations stated
"the arbitral and statutory issues are clearly parallel; both turn on whether the District
had
the
right to unilaterally change the bus parking locations." (Ibid.) The Board deferred to
the
award because it was "clear the arbitrator was presented with and considered all
of
the
evidence relevant to the unfair [practice charge]" including "the contractual bidding procedure
itself, bargaining history and past practices
of
the employer." (Ibid.)
In
Fremont Unified School District (1994) PERB Decision No. 1036, PERB again reviewed
an
arbitration award involving an alleged unilateral change. The arbitration award held
that
the
District had the authority to unilaterally change employee hours and position descriptions and
to
transfer employees. The Board deferred to the arbitration because "the arbitral and statutory
issues are so intertwined that resolution
of
one necessarily resolves the other" and
"a reading of
the arbitration award clearly establishes that the arbitration considered all the evidence
in
reaching her decision." (Ibid.)
Specifically,
ir1
addition to interpreting the collective bargaining
agreement, [the arbitrator] considered the past practice regarding
performance of cashiering duties, the changes in work
assignments, the impact of the changes, and the District's reasons
for the changes, including its attempt to comply with a PERB
determined unit configuration.
(Ibid.)
The arbitrator also considered the facts that the union was given notice and opportunity to
request negotiations but failed to do so and therefore waived its meet and confer rights, and
that the effects of the disputed action were previously negotiated. (Ibid.)
In this case, the unfair practice charge stated:

LA-CE-595-M
May 17, 2010
Page 7
A 20.0% work time furlough on all
of
our unit members imposed
by the City for a three month period starting April 3, 2009 and
ending June 30, 2009. 	Implemented unilaterally, violate our
current MOU in several areas including but not limited to: Article
10,
subsection 10.4, "Hours
of
Work"; Article 32 "Maintenance
of
Benefits and Terms and Conditions" and, Article 34 Waiver. No
such wholesale reduction
of
hours can be unilaterally imposed by
the City consistent with our MOU, We are seeking full restitution
of
all lost wages.
The Commission's final and binding decision-issued on February 22,
2010-framed
the
issue
before the Commission as follows:
SEIU alleges that the City
of
Guadalupe's implementation
of
a
mandatory furlough program violated the terms
of
the
Memorandum
of
Understanding between the City and SEIU.
SEIU specifically alleges that "the 20.0% work time furlough on
all
of our unit members threatened by the City for a three month
period, if implemented, unilaterally, would violate our MOU in
several areas . . . .
The first requirement, therefore, appears to have been met because the contractual issue
and
the unfair practice issue are factually parallel and the Commission was presented with
the
facts
which are relevant to resolving the unfair practice charge.
Second, the Commission's proceedings appear have been fair and regular as evidenced
by
the
selection of each party's representative, the selection of a mutually agreed upon member by
the
and SEIU, the selection
of
an independent hearing officer by mutual consent
of the
City	City
and SEIU, the conduct
of
the hearing on December 16, 2009, the ability
of
both parties to
present their cases, and the issuance
of
a written decision on February 22, 2010, which
contained findings of fact, reasoning and conclusions on the issue.4
Third, both parties to the arbitration proceedings agreed to be bound by the Commission's
decision as evidenced by the clear language in Article 7 Grievances/Disputes: "The decision
shall be final and binding on the parties."
With regard to the fourth criteria, repugnancy, the Board has stated that unless the award is
"palpably wrong" and not susceptible to an interpretation consistent with the Act, the
Board
4 The Commission is charged with making a reasonable effort to issue its decision
within fourteen (14) days after the conclusion of the hearing. 	The hearing was held on
December 16, 2009, and the decision was issued on February 22, 2010. The failure
of the
Commission to issue its decision in a timely manner is insufficient to demonstrate the
proceedings were conducted in an irregular and unfair manner.

LA-CE-595-M
May 17, 2010
Page 8
will defer
to
the arbitrator's award. 	(Yuba City Unified School District (1995) PERB Decision
No. 1095.) The possibility that the Board may have reached a different conclusion does
not
render the award unreasonable or repugnant. 	(Los Angeles Unified School District, supra,
PERB Decision No. 218.) Here, the Commission considered evidence from both the City and
SEIU to decide whether the City's unilateral imposition
of
furloughs for a three-month
period
violated the parties' MOU. The Commission considered language contained in the MOU
(particularly the management rights clause), the City's financial condition, and the
factthat
the
parties had bargained in good faith and reached an impasse, to reach the following conclusion:
It is the Personnel Commission's determination that use
of
the term
"normal" in the Article 10, Section 4 does not prevent the City from
establishing work hours other than those set forth in these contract
sections, and that the City's change in SEIU employees' "normal"
work day and work week was justified by legitimate business
reasons. The City was and is still experiencing significant budget
shortfalls which were undisputed in the evidence. On February 10,
2009, the City Council for the City
of
Guadalupe determined that
the budget situation required further reductions and the decision to
reduce SEIU work hours was additionally accompanied by cuts to
Management, Fire, Police and the City Attorney. 	Such
circumstances support a determination that the City's decision was
founded upon significant budgetary pressures, that such
circumstances constituted legitimate business considerations, and
that its decision to reduce SEIU's work hours was neither arbitrary
nor capricious and was implemented after good faith negotiations.
For all of the above reasons, the Personnel Commission finds that
the City
of
Guadalupe did not violate the MOU by implementing
mandatory furloughs (four day work week) from April 3 until June
26.
Since the Commission was presented with and considered all of the evidence relevant
to
the
unfair practice charge, its decision is not repugnant to the Act and the unfair practice
charge
must be dismissed. Even if there is room for disagreement with the conclusions reached, they
are not unreasonable or repugnant to the purposes
of
the MMBA, nor are they "palpably
wrong." (Fremont Unified School District, supra, PERB Decision No. 1036.)
SEIU may seek to amend its unfair practice charge to contest any or all
of
the findings
made
in
this document including deferral to the Personnel Commission process and its February 2010
determination and/or a repugnancy claim pursuant to PERB Regulation 32661. With regards
to
the issue of repugnancy, SEIU must allege with specificity the facts underlying its
claim
that
the Commission's award is repugnant to the purposes of the MMBA.

LA-CE-595-M
May17,2010
Page 9
CONCLUSION
For these reasons the charge, as presently written, does not state a prima facie case. 5
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have the case
number written on the top right hand corner
of
the charge form. 	The amended charge must be
with	served on the Respondent's representative and the original proof
	of
service must be filed
PERB.
	If
an amended charge or withdrawal is not filed on or before May 24, 2010,6
PERB
will dismiss your charge. If you have any questions, please call me at the above telephone
number.
CLG
Sincerely,
~/
'
Anita
I.
Martinez
Regional Director
AIM
5 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint
be
issued and the matter be sent to formal hearing." (Ibid.)
6 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)