City of Glendale (PERB 2251M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GLENDALE CITY EMPLOYEES
ASSOCIATION,
Charging Party, 	Case No. LA-CE-672-M
V . 	PERB Decision No. 2251-M
CITY OF GLENDALE, 	April 18, 2012
Respondent.
Appearances: City Employees Associates by Jeffrey W. Natke, Labor Representative, for
Glendale City Employees Association; Liebert, Cassidy & Whitmore by Adrianna E. Guzman,
Attorney, for City of Glendale.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Glendale City Employees Association (Association) of the
PERB Office of the General Counsel's dismissal (attached) of its unfair practice charge. The
charge alleged that the City of Glendale (City) violated the Meyers-Milias-Brown Act
(MMBA)' by refusing to meet and confer in good faith during negotiations for a successor
memorandum of understanding. The charge alleged that this conduct constituted a violation of
MMBA sections 3500, 3504, 3505 and 3505.2." The Board agent dismissed the charge finding
that it failed to state a prima facie case.
MMBA is codified at Government Code section 3500 et seq.
PERB Regulation 32603, subdivision (c) includes as an MMBA employer unfair
practice a refusal or failure to meet and confer in good faith with an exclusive representative
as required by MMBA section 3505. (PERB regs. are codified at Cal. Code Regs., tit. 8,
sec. 31001 et seq.)
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
GLENDALE CITY EMPLOYEES
ASSOCIATION,
Charging Party,
V.
CITY OF GLENDALE,
Respondent.
Case No. LA-CE-672-M
PERB Decision No. 2251-M
April 18, 2012
Appearances: City Employees Associates by Jeffrey W. Natke, Labor Representative, for
Glendale City Employees Association; Liebert, Cassidy & Whitmore by Adrianna E. Guzman,
Attorney, for City of Glendale.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Glendale City Employees Association (Association) of the
PERB Office of the General Counsel's dismissal ( attached) of its unfair practice charge. 	The
charge alleged that the City of Glendale (City) violated the Meyers-Milias-Brown Act
(MMBA) 1 by refusing to meet and confer in good faith during negotiations for a successor
memorandum of understanding. The charge alleged that this conduct constituted a violation of
MMBA sections 3500, 3504, 3505 and 3505 2 The Board agent dismissed the charge finding
that it failed to state a prima facie case.
1 MMBA is codified at Government Code section 3500 et seq.
2 PERB Regulation 32603, subdivision (c) includes as an MMBA employer unfair
practice a refusal or failure to meet and confer in good faith with an exclusive representative
as required by MMBA section 3505. (PERB regs. are codified at Cal. Code Regs., tit. 8,
sec. 31001 et seq.)

The Board has reviewed the entire record in this matter and given full consideration to
the issues raised on appeal and the arguments of the parties. Based on that review and
consideration, the Board finds the Board agent's warning and dismissal letters to be well-
reasoned, adequately supported by the record and in accordance with the applicable law.
Accordingly, the Board adopts the warning and dismissal letters as the decision of the Board
itself.3
The Association alleges, for the first time on appeal, that the City's bargaining conduct
was retaliatory, and involved strategies of intimidation and threats of reprisals intended to
extract concessions from the Association. PERB Regulation 32635, subdivision (b) provides:
"Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." There is no demonstration of good cause to consider
these new allegations on appeal, and therefore the Board declines to do so.*
y this decision, we hereby correct a statement in the fourth paragraph on page four
of the warning letter regarding the second described term of the City's initial offer. The charge
alleged that the City proposed an (rather than "no") additional three lower steps. We also
correct a statement in the first paragraph on page three of the dismissal letter. The charge
alleged that the parties met on October 6, 2010, to discuss impasse resolution procedures, but
ultimately the City rejected the Association's mediation proposal and no further negotiations
concerning impasse resolution occurred. These corrections do not disturb the Board agent's
thorough analysis of the issues; they are made for clarification purposes only and are not
material to the outcome of this matter.
Even if we determined that a claim of discrimination/retaliation can be read into the
charge, the Association's allegation that it was treated differently than the other bargaining units
(fire, police and management) in its negotiations with the City is not sufficient, in and of itself,
to set forth a prima facie case. (See Campbell Municipal Employees Assn. v. City of Campbell
(1982) 131
groups of employees was predicated on one group's participation in protected activity].)
2
The Board has reviewed the entire record in this matter and given full consideration to
the issues raised on appeal and the arguments of the parties. Based on that review and
consideration, the Board finds the Board agent's warning and dismissal letters to be well-
reasoned, adequately supported by the record and in accordance with the applicable law.
Accordingly, the Board adopts the warning and dismissal letters as the decision of the Board
itself. 3
The Association alleges, for the first time on appeal, that the City's bargaining conduct
was retaliatory, and involved strategies of intimidation and threats of reprisals intended to
extract concessions from the Association. PERB Regulation 32635, subdivision (b) provides:
"Unless good cause is shown, a charging party may not present on appeal new charge
allegations or new supporting evidence." There is no demonstration of good cause to consider
these new allegations on appeal, and therefore the Board declines to do so.4
B By this decision, we hereby correct a statement in the fourth paragraph on page four
of the warning letter regarding the second described term of the City's initial offer. The charge
alleged that the City proposed an (rather than "no") additional three lower steps. We also
correct a statement in the first paragraph on page three of the dismissal letter. The charge
alleged that the parties met on October 6, 2010, to discuss impasse resolution procedures, but
ultimately the City rejected the Association's mediation proposal and no further negotiations
concerning impasse resolution occurred. These corrections do not disturb the Board agent's
thorough analysis of the issues; they are made for clarification purposes only and are not
material to the outcome of this matter.
4 Even if we determined that a claim of discrimination/retaliation can be read into the
charge, the Association's allegation that it was treated differently than the other bargaining units
(fire, police and management) in its negotiations with the City is not sufficient, in and of itself,
to set forth a prima facie case. (See Campbell lvfunicipal Employees Assn. v. City of Campbell
(1982) 131 Cal.App.3d	Cal.App.3d 416 [discrimination found where differential treatment between two	416 [discrimination found where differential treatment between two
groups of employees was predicated on one group's participation in protected activity].)
2

ORDER
The unfair practice charge in Case No. LA-CE-672-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Dowdin Calvillo and Huguenin joined in this Decision.
3
ORDER
The unfair practice charge in Case No. LA-CE-672-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
3
Members Dowdin Calvillo and Huguenin joined in this Decision.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
hone: (818) 551-2806
Fax: (818) 551-2820
August 30, 2011
Jeffrey Natke, Labor Representative
Glendale City Employees Association
2918 East 7th Street
Long Beach, CA 90804
Re: 	Glendale City Employees Association v. City of Glendale
Unfair Practice Charge No. LA-CE-672-M
DISMISSAL LETTER
Dear Mr. Natke:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 14, 2011 and amended on June 30, 2011 (First Amended
the City of Glendale (City or Respondent) violated section 3505 of the Meyers-Milias-Brown
Act (MMBA or Act) and PERB Regulation 32603 by: (1) engaging in surface bargaining; and
(2) bargaining to impasse a non-mandatory subject of bargaining.
Charging Party was informed in the attached Warning Letter dated May 26, 2011 (Warning
Letter), that the above-referenced charge did not state a prima facie case. You were advised
that, if there were any factual inaccuracies or additional facts that would correct the
deficiencies explained in that letter, you should amend the charge. You were further advised
that, unless you amended the charge to state a prima facie case or withdrew it prior to June .9,
2011, the charge would be dismissed. At Charging Party's request, the deadline to file an
amended charge was extended to June 30, 2011. On June 30, 2011, this office received a First
Amended Charge.
Relevant Facts
The City and GCEA had an agreement on cost-sharing for the employer portion of Public
Employees' Retirement System (PERS), which survived the Memorandum of Understanding
(MOU) that expired on June 30, 2010. Article 2, Section E of the MOU provides that the cost-
sharing agreement shall last through July 1, 2016. Pursuant to this agreement, the City pays
the full amount of the employer rates between 0 and 7%. If the employer rate exceeds 7%, a
50/50 cost sharing arrangement applies. In such case, the City and unit employees would split
evenly increases beyond 7%, until the employees' contribution to the employer rates hit a cap
The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq. The text of the
MMBA and PERB Regulations may be found at 	.
STATE
OF
CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone:
(8
l 8) 551-2806
Fax: (818) 551-2820
August 30, 2011
EDMUND G.
BROWN
	Governor
Jeffrey Natke, Labor Representative
Glendale City Employees Association
2918 East 7th Street
Long Beach, CA 90804
Re: 	Glendale City Employees Association
v.
City
of
Glendale
Unfair Practice Charge No. LA-CE-672-M
DISMISSAL LETTER
Dear Mr. Natke:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 14, 2011 and amended on June 30, 2011 (First Amended
Charge). The Glendale
.Q_ty
Employees Association (GCEA or Charging Party) alleges that	Charge). The Glendale City Employees Association (GCEA or Charging Party) alleges that
the City
of
Glendale (City or Respondent) violated section 3505
of
the Meyers-Milias-Brown
Act (MMBA or Act) and PERB Regulation 32603 by: (1) engaging in surface bargaining; and
(2) bargaining to impasse a non-mandatory subject
of
bargaining. 1
~
. 	.
	·.
	• 	• 	• 	·•··.1'4~ 	•
Chargmg Party was mformed m the attached Warnmg Letter dated May 26, 1011 (Warnmg
Letter), that the above-referenced charge did not state a prima facie case. You were advised
that,
if
there were any factual inaccuracies or additional facts that would correct the
deficiencies explained in that letter, you should amend the charge. 	You were further advised
that, unless you amended the charge to state a prima facie case or withdrew it prior to June
.9,
2011, the charge would be dismissed. At Charging Party's request, the deadline to file an
amended charge was extended to June 30, 2011. On June 30, 2011, this office received a First
Amended Charge.
Relevant Facts
The City and GCEA had an agreement on cost-sharing for the employer portion of Public
Employees' Retirement System (PERS), which survived the Memorandum of Understanding
(MOU) that expired on June 30, 2010. Article 2, Section E of the MOU provides that the cost-
sharing agreement shall last through July
1,
2016. Pursuant to this agreement, the City pays
the full amount
of
the employer rates between O and 7%. 	If the employer rate exceeds 7%, a
50/50 cost sharing arrangement applies. 	In such case, the City and unit employees would split
evenly increases beyond 7%, until the employees' contribution to the employer rates hit a cap
· The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, titie 8, section 31001 et seq. 	The text of the
MMBA and PERB Regulations may be found atwww.perb.ca.gov	www.perb.ca.gov.

LA-CE-672-M
August 30, 2011
Page 2
of 0.5%. For example, if the employer rate increases to 8%, the City would pay 7.5%, and the
employee would pay 0.5% of the employer rate and the full employee rate. If the employer
rate exceeded 16%, a straight 50/50 cost sharing would apply, with no cap, for the increases
beyond 16%.
Between March 2010 and September 2010, the parties were meeting and conferring over a
successor MOU. During an April 29, 2010 meeting, the City wanted to discuss PERS cost
sharing as an alternative to layoffs. The City's Director of Human Resources Matt Doyle
expressed that there was public sentiment regarding retirement costs, and noted that a two-tier
retirement system was a "huge issue" for the City Council. He also noted that while a two-tier
retirement system would not solve the immediate budget issue, it would make a difference
long-term. The City proposed that the employees pay 100% of the cost for medical insurance
premium increases. GCEA rejected that proposal. GCEA proposed furloughs as an
alternative, however the City stated it opposed cutting services.
On July 19, 2010, the City proposed that the cost sharing provisions for the employer portion
of the PERS contribution increase from 0.5% to 2.0%, or in the alternative, that the GCEA
make concessions for a 1.5% salary decrease. The City explained that since, in the event of
impasse, the City could not impose cost sharing on the employer portion of PERS, the City
needed to include this option of reducing salaries "to achieve the desired costs savings." On
August 18, 2010, GCEA made a counterproposal that included an offer that employees pay
0.75% of the City's portion of PERS instead of the City's proposed 2.0%.
On August 25, 2010, the City provided GCEA with a "Conditional Last, Best Final Meet and
Confer Proposal" (Conditional LBFO) which proposed the following relevant terms:
7. PERS Retirement Cost Sharing: Increase current cost-
sharing provisions for the employer portion of the PERS
contribution from 0.5% to 2.0%. In the event that this Last, Best
and Final proposal does not result in a ratified agreement, the
City shall seek implementation of a 1.5% base salary decrease in
lieu of the increased PERS cost-sharing, and this alternate
proposal shall be considered incorporated into the City's written
proposal of July 19, 2010.
Duration of Time to Enter into Agreement: This
Conditional Last, Best and Final Offer shall remain valid through
and including August 31, 2010. . . . In the event that this
Conditional Last, Best and Final Offer is either not ratified by the
[GCEA] or if timely ratification notice is not provided, the
Conditional Last, Best and Final Offer shall be concurrently
amended by reversion to the written City proposal dated July 19,
2010, which shall itself become the Last, Best and Final City
Offer.
LA-CE-672-M
August 30, 2011
Page 2
of
0.5%. For example,
if
the employer rate increases to 8%, the City would pay 7.5%, and the
employee would pay 0.5%
of
the employer rate and the full employee rate. 	If the employer
rate exceeded 16%, a straight 50/50 cost sharing would apply, with no cap, for the increases
beyond 16%.
Between March 2010 and September 2010, the parties were meeting and conferring over a
successor MOU. During an April 29, 2010 meeting, the City wanted to discuss PERS cost
sharing as an alternative to layoffs. The City's Director
of
Human Resources Matt Doyle
expressed that there was public sentiment regarding retirement costs, and noted that a two-tier
retirement system was a "huge issue" for the City Council. He also noted that while a two-tier
retirement system would not solve the immediate budget issue, it would make a difference
long-term. The City proposed that the employees pay l 00%
of
the cost for medical insurance
premium increases. 	GCEA rejected that proposal. 	GCEA proposed furloughs
as
an
alternative, however the City stated it opposed cutting services.
On July 19, 2010, the City proposed that the cost sharing provisions for the employer portion
of
the PERS contribution increase from 0.5% to 2.0%, or in the alternative, that the GCEA
make concessions for a 1.5% salary decrease. The City explained that since, in the event
of
impasse, the City could not impose cost sharing on the employer portion
of
PERS, the City
needed to include this option ofreducing salaries "to achieve the desired costs savings." On
August 18, 2010, GCEA made a counterproposal that included an offer that employees
pay
0.75%
of
the City's portion
of
PERS instead
of
the City's proposed 2.0%.
-.,~;;"~
-
On August 25, 2010, the City provided GCEA with a "Conditional Last, Best Final Meet and
Confer Proposal" (Conditional LBFO) which proposed the following relevant terms:
7. PERS Retirement Cost Sharing: Increase current cost-
sharing provisions for the employer portion
of
the PERS
contribution from 0.5% to 2.0%. In the event that this Last, Best
and Final proposal does not result in a ratified agreement, the
City shall seek implementation
of
a 1.5% base salary decrease in
lieu
of
the increased PERS cost-sharing, and this alternate
proposal shall be considered incorporated into the City's written
proposal
of
July 19, 2010.
16. Duration of Time to
Enter
into Agreement: 	This
Conditional Last, Best and Final Offer shall remain valid through
and including August 31, 2010. . . . In the event that this
Conditional Last, Best and Final Offer is either not ratified by the
[GCEA] or
if
timely ratification notice is not provided, the
Conditional Last, Best and Final Offer shall be concurrently
amended by reversion to the written City proposal dated July 19,
2010, which shall itself become the Last, Best and Final City
Offer.
16.

LA-CE-672-M
August 30, 2011
Page 3
GCEA rejected the Conditional LBFO, and on September 21, 2010, the City declared impasse.
The parties engaged in mediation in October 2010, but were unsuccessful in reaching an
agreement for a successor MOU. On November 2, 2010, the City Council adopted a resolution
implementing terms from the City's July 19, 2010 proposal which included a 1.5% reduction in
employee salaries.
Discussion
In the Warning Letter, Charging Party was advised that the charge fails to allege sufficient
facts to demonstrate that the City engaged in surface bargaining. Charging Party was further
advised that although there are facts showing the City engaged in regressive bargaining (i.e.,
by including terms in its July 19, 2010 LBFO that were less favorable than the August 25,
2010 Conditional LBFO), one indicia of surface bargaining alone does not establish a prima
facie case of surface bargaining in violation of the MMBA. (See, e.g., Pajaro Valley Unified
School District (1978) PERB Decision No. 51.)
The amended charge re-alleges that the City engaged in surface bargaining by adopting a
"take-it-or-leave-it" approach during pre-impasse bargaining. " The amended charge also
alleges a new legal theory that the City engaged in a "per se" violation of the duty to
bargaining in good faith on the grounds that the City negotiated to impasse a permissive
subject of bargaining. As discussed below, these allegations fail to demonstrate a prima facie
case.
I. "Take-it-or-Leave-it" Bargaining
Charging Party asserts that "from 'day one' of the negotiations. . .., the City had adopted a
"take-it-or-leave-it' on cost sharing for the employer's PERS rate" and that the "City was
adamant that GCEA must open up the cost sharing arrangement and agree to pay an additional
1.5% of the employer rate."
In the Warning Letter, Charging Party was advised that entering negotiations with a "take-it-
or-leave" attitude demonstrates an indicia of surface bargaining under the totality of the
conduct test. (General Electric Co. (1964) 150 NLRB 192, 194, enf. 418 F.2d 736.)
However, the duty to bargain does not compel either party to make concessions. Insistence on
a firm position is not necessarily evidence of bad faith because the law merely requires the
parties to maintain a sincere interest in reaching an agreement, and even if the reasons for
insisting on a particular position or contract term are questionable, if the belief is sincerely
The amended charge fails to: (1) re-assert the allegation that the City engaged in
surface bargaining during the impasse resolution procedure; and (2) provide new facts to cure
the deficiencies addressed in the Warning Letter for such allegation. Therefore, as discussed in
the Warning letter, this allegation fails to demonstrate that the City engaged in surface
bargaining during and prior to exhaustion of impasse.
LA-CE-672-M
August 30, 2011
Page 3
GCEA rejected the Conditional LBFO, and on September 21, 2010, the City declared impasse.
The parties engaged in mediation in October 2010, but were unsuccessful in reaching
an
agreement for a successor MOU. On November 2, 2010, the City Council adopted a resolution
implementing terms from the City's July 19, 2010 proposal which included a
1.
5 % reduction in
employee salaries.
Discussion
In the Warning Letter, Charging Party was advised that the charge fails to allege sufficient
facts to demonstrate that the City engaged in surface bargaining. Charging Party was further
advised that although there are facts showing the City engaged in regressive bargaining (i.e.,
by including terms in its July 19, 2010 LBFO that were less favorable than the August
25,
2010 Conditional LBFO), one indicia
of
surface bargaining alone does not establish a
prima
facie case
of
surface bargaining in violation
of
the MMBA. 	(See, e.g., Pajaro Valley Unified
School District (1978) PERB Decision No. 51.)
The amended charge re-alleges that the City engaged in surface bargaining by adopting a
"take-it-or-leave-it" approach during pre-impasse bargaining.2 The amended charge also
alleges a new legal theory that the City engaged in a "per se" violation
of
the duty to
bargaining in good faith on the grounds that the City negotiated to impasse a permissive
subject
of
bargaining. As discussed below, these allegations fail to demonstrate a prima facie
case.
I.
	"Take-it-or-Leave-it" Bargaining
Charging Party asserts that "from 'day one'
of
the negotiations
....
, the City had adopted a
'take-it-or-leave-it' on cost sharing for the employer's PERS rate" and that the "City was
adamant that GCEA must open up the cost sharing arrangement and. agree to pay an additional
1.5%
of
the employer rate."
In the Warning Letter, Charging Party was advised that entering negotiations with a "take-it-
or-leave" attitude demonstrates an indicia
of
surface bargaining under the totality
of
the
conduct test. 	(General Electric
Co.
(1964) 150 NLRB 192, 194, enf. 418 F.2d 736.)
However, the duty to bargain does not compel either party to make concessions. Insistence on
a firm position is not necessarily evidence
of
bad faith because the law merely requires the
parties to maintain a sincere interest in reaching an agreement, and even
if
the reasons for
insisting on a particular position or contract term are questionable,
if
the belief is sincerely
2 The amended charge fails to: (1) re-assert the allegation that the City engaged in
surface bargaining during the impasse resolution procedure; and (2) provide new facts to cure
the deficiencies addressed in the Warning Letter for such allegation. Therefore, as discussed in
the Warning letter, this allegation fails to demonstrate that the City engaged in surface
bargaining during and prior to exhaustion of impasse.

LA-CE-672-M
August 30, 2011
Page 4
held, it may be maintained even if it produces a stalemate. (See Public Employees Assn. v.
Board of Supervisors (1985) 167 Cal.App.3d 797, 805-806; Placentia Fire Fighters v. City of
Placentia (1976) 57 Cal.App.3d 9, 22-23; Los Angeles County Employees Assn., Local 660 v.
County of Los Angeles (1973) 33 Cal.App.3d 1, 4, n.3; Trustees of the California State
University (2006) PERB Decision No. 1842-H; City of Fresno (2006) PERB Decision
No. 1841-M; County of Riverside (2004) PERB Decision No. 1715-M; Oakland Unified School
District (1982) PERB Decision No. 275.) The obligation to bargain in good faith merely
requires the parties to explain the reasons for a particular bargaining position with sufficient
detail to "permit the negotiating process to proceed on the basis of mutual understanding."
(Jefferson School District (1980) PERB Decision No. 133.)
In the context of this record, it cannot be concluded the that City's conduct during bargaining
constituted any indicia of bad faith bargaining. As stated in the Warning Letter, it appears that
the City drove a hard bargain. During negotiations the City refused to accept the proposals
passed by the GCEA because these proposals, as alleged by the City during bargaining, did not
achieve the long term structural changes. Specifically, the City emphasized a need to address
three main issues given the City's financial condition: (1) to establish a two-tier retirement
system; (2) medical cost sharing; and (3) PERS cost-sharing. The increasing PERS rates was
only one of three major items that the parties were unable to agree upon. During negotiations,
the City expressed concerns about increasing PERS rates, and its need for cost savings. Facts
also show that the City explained the reasons for its proposals, including the need to be able to
fund future retirements and maintain the City's retirement system. Charging Party does not
allege any facts showing that the City's financial concerns were not legitimate. Moreover,
facts in the record show that the City considered alternatives from GCEA that would allow it to
achieve its goal of obtaining long-term structural changes to compensation and retirement.
Accordingly, under the "totality of the conduct" test, the amended charge fails to allege facts
showing that the City engaged in surface bargaining.
II. Negotiating to Impasse a Permissive Subject
Although not clear from the amended charge, it appears Charging Party is alleging that by
bargaining to amend the cost-sharing agreement in Article 2, Section E of the MOU-thus,
requiring employees to pay an additional 1.5% of the employer PERS rates-the City
negotiated to impasse a permissive subject of bargaining.
The City and GCEA have a bilateral obligation to engage in meeting and conferring about
mandatory subjects of negotiations that relate to wages, hours of employment and other terms
and conditions of employment. (Gov. Code $ 3505).) However, the parties are free to
negotiate over the inclusion of non-mandatory subjects of bargaining. (San Mateo County
Community College District (1993) PERB Decision No. 1030; Lake Elsinore School District
(1986) PERB Decision No. 603 (Lake Elsinore); Chula Vista City School District (1990)
PERB Decision No. 834 (Chula Vista).) A party may not, however, legally insist upon the
acceptance of such proposals "in the face of a clear and express refusal by the union to
bargain" over them. (Lake Elsinore.) Thus, the insistence to impasse on non-mandatory
subjects of bargaining is a per se unfair practice. (Travis Unified School District (1992) PERB
LA-CE-672-M
August 30, 2011
Page 4
held, it may be maintained even
if
it produces a stalemate. (See Public Employees Assn.
v.
Board
of
Supervisors (1985) 167 Cal.App.3d 797, 805-806; Placentia Fire Fighters
v.
City
of
Placentia (1976) 57 Cal.App.3d
9,
22-23; Los Angeles County Employees Assn., Local 660
v.
County
of
Los Angeles (1973)
33
Cal.App.3d
1, 4,
n.3; Trustees
of
the Calzfornia State
University (2006) PERE Decision No. 1842-H; City
of
Fresno (2006) PERB Decision
No. 1841-M; County
of
Riverside (2004) PERB Decision No. 1715-M; Oakland Unified School
District (1982) PERB Decision No. 275.) The obligation
to
bargain in good faith merely
requires the parties to explain the reasons for a particular bargaining position with sufficient
detail to "permit the negotiating process to proceed on the basis
of
mutual understanding."
(Jefferson School District (1980) PERB Decision No. 133.)
In the context
of
this record, it cannot be concluded the that City's conduct during bargaining
constituted any indicia of bad faith bargaining. As stated in the Warning Letter, it appears that
the City drove a hard bargain. During negotiations the City refused to accept the proposals
passed by the GCEA because these proposals, as alleged by the City during bargaining, did not
achieve the long term structural changes. 	Specifically, the City emphasized a need to address
three main issues given the City's financial condition: (
1)
to establ1sh a two-tier retirement
system; (2) medical cost sharing; and (3) PERS cost-sharing. The increasing PERS rates was
only one
of
three major items that the parties were unable to agree upon. During negotiations,
the City expressed concerns about increasing PERS rates, and its need for cost savings. 	Facts
also show that the City explained the reasons for its proposals, including the need to be able to
fund future retirements and maintain the City's retirement system. Charging Party does not
allege any facts showing that the City's financial concerns were not legitimate. Moreover,
facts in the record show that the City considered alternatives from GCEA that would allow it to
achieve its goal
of
obtaining long-term structural chctnges to compensation and retirement.
Accordingly, under the "totality
of
the conduct" test, the amended charge fails to allege facts
showing that the City engaged in surface bargaining.
II. Negotiating to Impasse a Permissive Subject
Although not clear from the amended charge, it appears Charging Party is alleging that by
bargaining to amend the cost-sharing agreement in Article 2, Section E of the
MOU-thus,
requiring employees to pay an additional 1.5%
of
the employer PERS
rates-the
City
negotiated to impasse a permissive subject
of
bargaining.
The City and GCEA have a bilateral obligation to engage in meeting and conferring about
mandatory subjects
of
negotiations that relate to wages, hours
of
employment and other terms
and conditions of employment. (Gov. Code § 3505).) However, the parties are free to
negotiate over the inclusi.on of non-mandatory subjects of bargaining. (San Mateo County
Community College District (1993) PERB Decision No. I 030; Lake Elsinore School District
(1986) PERB Decision No. 603 (Lake Elsinore); Chula Vista City School District (1990)
PERE Decision No. 834 (Chula Vista).) A party may not, however, legally insist upon the
acceptance of such proposals "in the face of a clear an
bargain" over them. (Lake Elsinore.) Thus, the insistence to impasse on non-mandatory
subjects of bargaining is a per se unfair practice. (Travis Unified School District ( 1992) PERB
d express refusal by the union to

LA-CE-672-M
August 30, 2011
Page 5
Decision No. 917 (Travis); Chula Vista; Lake Elsinore; Modesto City Schools (1983) PERB
Decision No. 291; Ross School District Board of Trustees (1978) PERB Decision No. 48.)
Applying this rule, PERB has held that an employer may not insist to impasse that a union
waive statutory rights, such as the right to file grievances in its own name. (Travis; Chula
Vista.)
In San Mateo, supra, PERB Decision No. 1030, the Board articulated the Lake Elsinore, supra,
PERB Decision No. 603 rule as follows:
Under Lake Elsinore, the Board held that parties may engage in
negotiations dealing with permissive, nonmandatory subjects of
bargaining, but once a party subsequently decides to take a
position that the nonmandatory subject not be included in the
collective bargaining agreement, that party must express its
opposition to further negotiation on the proposal as a prerequisite
to charging the other party with bargaining to impasse on a
nonmandatory subject of bargaining.
In Chula Vista, supra, PERB Decision No. 834 the Board stated:
...while the parties may engage in negotiations over proposals
dealing with permissive, nonmandatory subjects of bargaining,
when one party subsequently decides to take the position that the
nonmandatory proposal not be included in the contract, that party
must express its opposition to further negotiation on the proposal
as a prerequisite to charging the other party with bargaining to
impasse on a nonmandatory subject of bargaining.
(Citations omitted.)
In Travis, supra, PERB Decision No. 917, the school district insisted to impasse on
maintaining a contract provision that limited the union's right to file grievances on its own
behalf, a subject that had been determined to be non-mandatory in Chula Vista, supra, PERB
Decision No. 834 and South Bay Union School District (1990) PERB Decision No. 791. The
union rejected the employer's proposal to maintain the status quo and continued to insist on its
own proposal to modify the contract provision so as not to waive its statutory rights. Finding
the facts of this case to be very similar to those of Chula Vista, the Board found that the
union's continued refusal to waive its statutory rights, while at the same time continuing to
press for inclusion of its proposal, "maldje clear its contention that it was improper for the
district to insist on language which it believed deprived it of its statutory rights."
In State of California (Department of Personnel Administration) (2009) PERB Decision
No. 2081-S, the Board noted that consistent with the standards set forth in San Mateo, supra,
PERB Decision No. 1030, Lake Elsinore, supra, PERB Decision No. 603, Chula Vista, supra,
PERB Decision No. 834 and Travis, supra, PERB Decision No. 917, a showing must be made
LA-CE-672-M
August 30, 2011
Page 5
Decision No. 917 (Travis); Chula Vista; Lake Elsinore; Modesto City Schools (1983) PERB
Decision No. 291; Ross School District Board
of
Trustees (1978) PERB Decision No. 48.)
Applying this rule, PERB has held that an employer may not insist to impasse that a union
waive statutory rights, such as the right to file grievances in its own name. (Travis; Chula
Vista.)
supra,	In San Mateo, supra, PERB Decision No. 1030, the Board articulated the Lake Elsinore,
PERB Decision No. 603 rule as follows:
Under Lake Elsinore, the Board held that parties may engage in
negotiations dealing with permissive, nonmandatory subjects
of
bargaining, but once a party subsequently decides to take a
position that the nonmandatory subject not be included in the
collective bargaining agreement, that party must express its
opposition to further negotiation on the proposal as a prerequisite
to charging the other party with bargaining to impasse on a
nonmandatory subject
of
bargaining.
In Chula Vista, supra, PERB Decision No. 834 the Board stated:
... while the parties may engage in negotiations over proposals
dealing with permissive, nonmandatory subjects
of
bargaining,
when one party subsequently decides to take the position that the
nonmandatory proposal not be included in the contract, that party
must express its opposition to further negotiation on the proposal
as a prerequisite to charging the other party with bargaining to
impasse on a nonmandatory subject
of
bargaining.
(Citations omitted.)
In Travis, supra, PERB Decision No. 917, the school district insisted to impasse on
maintaining a contract provision that limited the union's right to file grievances on its
own
behalf, a subject that had been determined to be non-mandatory in Chula Vista, supra, PERB
Decision No. 834 and South Bay Union School District (1990) PERB Decision No. 791. 	The
on its	union rejected the employer's proposal to maintain the status quo and continued to insist
own proposal to modify the contract provision so as not to waive its statutory rights. Finding
the facts
of
this case to be very similar to those
of
Chula Vista, the Board found that the
union's continued refusal to waive its statutory rights, while at the same time continuing to
press for inclusion
of
its proposal, "ma[ d]e clear its contention that it was improper for the
district to insist on language which it believed deprived it
of
its statutory rights."
In State
of
California (Department
of
Personnel Administration) (2009) PERB Decision
No. 2081-S, the Board noted that consistent with the standards set forth in San Mateo, supra,
PERB Decision No. 1030, Lake Elsinore, supra, PERB Decision No. 603, Chula Vista, supra,
PERB Decision No. 834 and Travis, supra, PERB Decision No. 917, a showing must be made

LA-CE-672-M
August 30, 2011
Page 6
that the party objecting to the inclusion of the non-mandatory subject clearly communicated its
opposition to further consideration of the proposal.
Here, even if the cost sharing agreement in Article II, Section E of the MOU is a permissive
subject of bargaining, there are no facts in the current record to show that GCEA raised any
objection to the City's request to modify the cost-sharing provision, or that it refused to
negotiate that provision. (See NLRB v. Wooster Division of Borg-Warner Corp. (1958) 346
U.S. 342, 349 [as to permissive subject of bargaining, "each party is free to bargain or not to
bargain, and to agree or not to agree"].) Further, facts in the record show that on August 18,
2010, GCEA responded with its own counterproposals on the cost sharing issue, and that the
parties continued to discuss modifying the cost sharing arrangement throughout negotiations.
Accordingly, since the charge is devoid of any facts showing that the GCEA clearly
communicated its opposition to negotiate what GCEA believed to be a non-mandatory subject
of bargaining, the charge fails to demonstrate a prima facie case that City per se violated the
duty to bargain in good faith.
Additionally, the City did not insist to impasse the modification of the cost-sharing agreement.
Prior to declaring impasse, the City presented GCEA with proposals that provided for a salary
reduction in lieu of
the City's efforts to negotiate regarding modifications to the PERS cost-sharing provision does
not per se demonstrate bad faith bargaining. In Eureka City School District (1992) PERB
Decision No. 955 (Eureka), the Board stated, in pertinent part:
. . once agreement is reached concerning a permissive subject
and it is embodies in the parties' [MOU], the parties are bound by
the terms of the agreement until its expiration or unless modified
by the parties. (Italics added.)
Consistent with Eureka, even though the parties previously agreed to a cost-sharing
arrangement, there was nothing to preclude to City from seeking to negotiate modifications to
that arrangement.
Therefore, the amended charge fails to demonstrate the City violated its duty to bargain in
good faith.
Conclusion
For the reasons set forth above, as well as in the May 26, 2011 Warning Letter, the charge is
hereby dismissed.
· LA-CE-672-M
August 30, 2011
Page 6
that the party objecting to the inclusion
of
the non-mandatory subject clearly communicated its
opposition to further consideration
of
the proposal.
Here, even
if
the cost sharing agreement in Article II, Section E
of
the MOU is a permissive
subject
of
bargaining, there are no facts in the current record to show that GCEA raised any
objection to the City's request to modify the cost-sharing provision, or that it refused to
negotiate that provision. (See NLRB
v.
Wooster Division
of
Borg-Warner Corp. (1958) 346
U.S. 342, 349 [as to permissive subject
of
bargaining, "each party is free to bargain or not to
bargain, and to agree or not to agree"].) Further, facts in the record show that on August 18,
2010, GCEA responded with its own counterproposals on the cost sharing issue, and that the
parties continued to discuss modifying the cost sharing arrangement throughout negotiations.
Accordingly, since the charge is devoid
of
any facts showing that the GCEA clearly
communicated its opposition to negotiate what GCEA believed to be a non-mandatory subject
of
bargaining, the charge fails to demonstrate a prima facie case that City
per
se violated the
duty to bargain in good faith.
Additionally, the City did not insist to impasse the modification
of
the cost-sharing agreement.
Prior to declaring impasse, the City presented GCEA with proposals that provided for a salary
reduction in lieu
ofits proposal to modify the parties PERS cost sharing agreement. Further,
the City's efforts to negotiate regarding modifications to the PERS cost-sharing provision does
not
per
se demonstrate bad faith bargaining. In Eureka City School District (1992) PERB
Decision No. 955 (Eureka), the Board stated, in pertinent part:
its proposal to modify the parties PERS cost sharing agreement. Further,
...
once agreement is reached concerning a permissive subject
and it is embodies in the parties' [MOU], the parties are bound by
the terms
of
the agreement until its expiration or unless modified
by the parties. 	(Italics added.)
·
Consistent with Eureka, even though the parties previously agreed to a cost-sharing
arrangement, there was nothing to preclude to City from seeking to negotiate modifications to
that arrangement.
Therefore, the amended charge fails to demonstrate the City violated its duty to bargain in
good faith.
Conclusion
For the reasons set forth above, as well as in the May 26, 2011 Warning Letter, the charge is
hereby dismissed.

LA-CE-672-M
August 30, 2011
Page 7
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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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).)
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
LA-CE-672-M
August 30, 2011
Page 7
Right to Appeal
Pursuant to PERB Regulations,3 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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).)
- PERB' s Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-672-M
August 30, 2011
Page 8
Extension of Time
A request for an extension of time, in which 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,
M. SUZANNE MURPHY
General Counsel
By
Yaron Partovi
Regional Attorney
Attachment
cc: Adrianna E. Guzman
LA-CE-672-M
August 30, 2011
Page 8
Extension
of
Time
A request for an extension
of
time, in which 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,
M. SUZANNE MURPHY
General Counsel
By	
c4,~M/l/a~~
Y aron Partov{
Regional Attorney
/
Attachment
cc: Adrianna E. Guzman

EDMUND G. BROWN J 	overnor	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
PER.B 	Fax: (916) 327-6377
May 26, 2011
Jeffrey Natke, Labor Representative
City Employees Associates
2918 E. 7th Street
Long Beach, CA 90804
Re: 	Glendale City Employees Association v. City of Glendale
Unfair Practice Charge No. LA-CE-672-M
WARNING LETTER
Dear Mr. Natke:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 14, 2011. The Glendale City Employees Association
(GCEA or Charging Party) alleges that the City of Glendale (City or Respondent) violated
section 3505 of the Meyers-Milias-Brown Act (MMBA or Act) and PERB Regulation 32603
by engaging in surface bargaining.
Investigation of the charge revealed the following relevant information. GCEA is the
exclusive representative of a City bargaining unit covering non-sworn miscellaneous
employees. GCEA and the City are parties to a memorandum of understanding (MOU) that
expired on June 30, 2010.
Relevant MOU Provisions
MOU Article Ten, Section VI provides:
VI. 	RESOLUTION OF IMPASSE
Should impasse be reached regarding the negotiation of a
successor [MOU] to this [MOU], the City and [GCEA] shall meet
and confer to establish an impasse procedure to resolve the
disagreement.
The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq. The text of the
MMBA and PERB Regulations may be found at
STATE OF CALIFORNIA 	EDMUND
G.
BROWN R., GGovernor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
May 26, 2011
Jeffrey Natke, Labor Representative
City Employees Associates
2918 E. 7th Street
Long Beach, CA 90804
Re: 	Glendale City Employees Association
v.
City
of
Glendale
Unfair Practice Charge No. LA-CE-672-M
WARNING LETTER
Dear Mr. Natke:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on March 14, 2011. The Glendale City Employees Association
(GCEA or Charging Party) alleges that the City
of
Glendale (City or Respondent) violated
section 3505
of
the Meyers-Milias-Brown Act (MMBA or Act) and PERB Regulation 32603
by engaging in surface bargaining. 1
Investigation
of
the charge revealed the following relevant information. GCEA is the
exclusive representative
of
a City bargaining unit covering non-sworn miscellaneous
employees. GCEA and the City are parties to a memorandum
of
understanding (MOU) that
expired on June 30, 2010 .
.Relevant MOU Provisions
MOU Article Ten, Section VI provides:
VI. 	RESOLUTION OF IMPASSE
Should impasse be reached regarding the negotiation
of
a
successor [MOU] to this [MOU], the City and [GCEA] shall meet
and confer to establish an impasse procedure to resolve the
disagreement.
1 The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq. The text of the
MMBA and PERB Regulations may be found atwww.perb.ca.gov.	www.perb.ca.gov.

LA-CE-672-M
May 26, 2011
Page 2
Facts as Alleged
Between March 2010 and September 2010, the parties held nine negotiations sessions and
exchanged proposals and counter-proposals for a successor MOU.
At the first bargaining session (March 11, 2010), the parties discussed, among other things, the
City's budget, retirement costs under the Public Employees' Retirement System (PERS), and
cost-saving ideas.
During an April 29, 2010 meeting, the City wanted to discuss PERS cost sharing as an
alternative to layoffs. The City's Director of Human Resources Matt Doyle expressed that
there was public sentiment regarding retirement costs, and noted that a two-tier retirement
system was a "huge issue" for the City Council. He also noted that while a two-tier retirement
system would not solve the immediate budget issue, it would make a difference long-term.
The City proposed that the employees pay 100% of the cost for medical insurance premium
increases. GCEA rejected that proposal, and told the City that it was "asking for way too
much." GCEA proposed furloughs as an alternative, however the City stated it opposed
cutting services.
During a May 21, 2010 meeting, the City made its initial one-year proposal, which included
the following terms: (1) no pay adjustments; (2) no additional three lower steps on the salary
range for each classification; (3) employees pay 100% of all medical insurance premium
increases; (4) 2% at 60 retirement for new hires; and (5) employees to pay 1.5% of the City's
PERS contribution. The parties also discussed GCEA's proposals. The City advised GCEA
that it would present GCEA's proposals to the City Council, and the City would have to "cost
out" GCEA's proposal.
During this meeting, GCEA's chief negotiator, Wendell Phillips, requested that the City
provide GCEA with the following information: (1) the projected savings the City expected to
achieve through its proposals, and (2) the equivalent dollar amount of 1% of its members'
salaries. Mr. Doyle informed GCEA that "Police and Fire have contracts in place" and that
GCEA was going to have to accept "the reality that public safety will always be the highest
priority to the general public and that the public does not want to see cuts to Police and Fire."
The charge does not allege facts showing that GCEA made a follow-up request.
At the June 2, 2010 meeting, Mr. Phillips questioned the City about a "secret" tentative
agreement reached with the City's police unit. Mr. Doyle advised Mr. Phillips that while the
City had reached a tentative agreement, it was not a foregone conclusion, and there were still
language issues to be worked out. As such, it was not yet a public record. Mr. Phillips advised
The Board agent may rely on a respondent's factual allegations that are undisputed or
not refuted by the charging party. (Chula Vista Elementary School District (2003) PERB
Decision No. 1557.)
LA-CE-672-M
May 26, 2011
Page 2
Facts as Alleged2
Between March 2010 and September 2010, the parties held nine negotiations sessions
and
exchanged proposals and counter-proposals for a successor MOU.
At the first bargaining session (March 11, 2010), the parties discussed, among other things, the
City's budget, retirement costs under the Public Employees' Retirement System (PERS), and
cost-saving ideas.
During an April 29, 2010 meeting, the City wanted to discuss PERS cost sharing as an
alternative to layoffs. The City's Director
of
Human Resources Matt Doyle expressed
that
there was public sentiment regarding retirement costs, and noted that a two-tier retirement
system was a "huge issue" for the City Council. He also noted that while a two-tier retirement
system would not solve the immediate budget issue, it would make a difference long-term.
The City proposed that the employees pay 100%
of
the cost for medical insurance premium
increases. GCEA rejected that proposal, and told the City that it was "asking for way too
much." GCEA proposed furloughs as an alternative, however the City stated it opposed
cutting services.
During a May 21, 2010 meeting, the City made its initial one-year proposal, which included
the following terms: (1) no pay adjustments; (2) no additional three lower steps on the salary
range for each classification; (3) employees pay 100%
of
all medical insurance premium
increases; (4) 2% at 60 retirement for new hires; and (5) employees to pay 1.5%
of
the City's
PERS contribution. The parties also discussed GCEA's proposals. The City advised GCEA
that it would present GCEA's proposals to the City Council, and the City would have to "cost
out" GCEA's proposal.
During this meeting, GCEA's chief negotiator, Wendell Phillips, requested that the City
provide GCEA with the following information: (1) the projected savings the City expected to
achieve through its proposals, and (2) the equivalent dollar amount
of
1%
of
its members'
salaries. 	Mr. Doyle informed GCEA that "Police and Fire have contracts in place" and that
GCEA was going to have to accept "the reality that public safety will always be the highest
priority to the general public and that the public does not want to see cuts to Police and Fire."
The charge does not allege facts showing that GCEA made a follow-up request.
At the June 2, 2010 meeting, Mr. Phillips questioned the City about a "secret" tentative
agreement reached with the City's police unit. Mr. Doyle advised Mr. Phillips that while the
City had reached a tentative agreement, it was not a foregone conclusion, and there were still
language issues to be worked out. As such, it was not yet a public record. Mr. Phillips advised
2 The Board agent may rely on a respondent's factual allegations that are undisputed or
not refuted by the charging party. (Chula Vista Elementary School District (2003) PERB
Decision No. 1557.)

LA-CE-672-M
May 26, 2011
Page 3
the City that because GCEA members did not know the terms of the tentative agreement with
the police, it would be difficult for talks to progress with GCEA.
Mr. Doyle advised GCEA that the City Council was "expecting some degree of sacrifice from
employees," and that the City needed to see movement from GCEA. While Mr. Doyle
acknowledged that the City was not in as bad shape as some other agencies, he also noted that
"all cities are facing very difficult times." GCEA again raised the issue of furloughs, and Mr.
Doyle again reiterated the City's opposition by noting that furloughs do not "solve anything, . .
hurt employees, and are at best a temporary fix." GCEA also noted that although the City
said it wanted to be fair, police and fire units were not being treated the same as other units.
GCEA also suggested that the "City's decision to take the negotiations to the Glendale press
[on or about June 2, 2010] was problematic. . . and detrimental to the negotiation process."
During this meeting, Mr. Doyle also provided GCEA with the information Mr. Phillips had
requested on May 21, 2010. As to the issue of cost savings, Mr. Doyle provided GCEA with
the information requested, but also explained that, "a number of items were hard to cost or the
cost savings were unknown." As for the issue of the dollar amount of 1% of GCEA salary, Mr.
Doyle identified the amount to be $688,785. GCEA did not repeat its May 21 request for the
information or seek clarification of the City's response.
On July 1, 2010, the parties met again for negotiations. The City informed GCEA that,
although the fire unit still had a contract in place, the fire unit had agreed to: (1) defer a cost-
of-living adjustment (COLA) to 2013; (2) contribute an additional 0.5% for PERS costs (which
brought them to 2%); and (3) implemented a lower retirement tier for new hires (3% at 55-
down from 3% at 50). When CGEA asked whether the police unit was still getting its 6%
COLA, the City replied that the police unit has a contract in place. GCEA made a comment
that GCEA had a cost sharing in place until 2016 and that "it doesn't seem to 'stick' like it
does" with the police and fire units. GCEA advised that while it could accept an undefined
lower-retirement formula for new hires, an 80/20 split on cost-sharing for medical (provided
all units had the same percentage), and adding three lower steps to the salary range if the merit
step was converted to a regular step, it was unlikely it could get the votes needed to ratify the
contract, if police, fire, and the management units were not willing to agree to similar cuts.
During this meeting, Mr. Doyle presented GCEA with the City's second package proposal.
Mr. Doyle explained that, for this proposal, GCEA would have to move some on the big three
items: (1) PERS cost sharing; (2) medical costs sharing; and (3) implementation of a two-tier
system.
GCEA perceived the City's proposal as "the same as its initial offer on all material terms."
GCEA then provided the City with a counter-proposal that included the following terms: (1)
an undefined lower retirement formula for new-hires; (2) an 80/20 split on cost-sharing for
medical (provided all units had the same percentage); (3) adding three lower steps to the salary
range; and (4) increasing PERS cost-sharing to 0.75%.
LA-CE-672-M
May 26, 2011
Page 3
the City that because GCEA members did not know the terms of the tentative agreement with
the police, it would be difficult for talks to progress with GCEA.
Mr. Doyle advised GCEA that the City Council was "expecting some degree of sacrifice from
employees," and that the City needed to see movement from GCEA. While Mr. Doyle
acknowledged that the City was not in as bad shape as some other agencies, he also noted that
"all cities are facing very difficult times." GCEA again raised the issue of furloughs, and Mr.
Doyle again reiterated the City's opposition by noting that furloughs do not "solve anything, ..
. hurt employees, and are at best a temporary fix." 	GCEA also noted that although the City
said it wanted to be fair, police and fire units were not being treated the same as other units.
GCEA also suggested that the "City's decision to take the negotiations to the Glendale press
[on or about June 2, 2010] was problematic ... and detrimental to the negotiation process."
During this meeting, Mr. Doyle also provided GCEA with the information Mr. Phillips had
requested on May 21, 2010. As to the issue of cost savings, Mr. Doyle provided GCEA with
the information requested, but also explained that, "a number of items were hard to cost or the
cost savings were unknown." As for the issue of the dollar amount of 1% of GCEA salary, Mr.
Doyle identified the amount to be $688,785. GCEA did not repeat its May 21 request for the
information or seek clarification of the City's response.
On July 1, 2010, the parties met again for negotiations. The City informed GCEA that,
although the fire unit still had a contract in place, the fire unit had agreed to: (1) defer a cost-
of-living adjustment (COLA) to 2013; (2) contribute an additional 0.5% for PERS costs (which
brought them to 2%); and (3) implemented a lower retirement tier for new hires (3% at 55-
down from 3% at 50). When CGEA asked whether the police unit was still getting its 6%
COLA, the City replied that the police unit has a contract in place. GCEA made a comment
that GCEA had a cost sharing in place until 20 I 6 and that "it doesn't seem to 'stick' like it
does" with the police and fire units. GCEA advised that while it could accept an undefined
lower-retirement formula for new hires, an 80/20 split on cost-sharing for medical (provided
all units had the same percentage), and adding three lower steps to the salary range if the merit
step was converted to a regular step, it was unlikely it could get the votes needed to ratify the
contract, if police, fire, and the management units were not willing to agree to similar cuts.
During this meeting, Mr. Doyle presented GCEA with the City's second package proposal.
Mr. Doyle explained that, for this proposal, GCEA would have to move some on the big three
items: 	(1) PERS cost sharing; (2) medical costs sharing; and (3) implementation of a two-tier
system.
GCEA perceived the City's proposal as "the same as its initial offer on all material terms."
GCEA then provided the City with a counter-proposal that included the following terms: 	(1)
an undefined lower retirement formula for new-hires; (2) an 80/20 split on cost-sharing for
medical (provided all units had the same percentage); (3) adding three lower steps to the salary
range; and (4) increasing PERS cost-sharing to 0.75%.

LA-CE-672-M
May 26, 2011
Page 4
Mr. Doyle advised GCEA that while he and the City appreciated the movement on PERS cost
sharing, it seemed that negotiations were "getting to the point where there is no process being
made on either side."
During the July 7, 2010 meeting, Mr. Phillips was not able to attend. The City presented a
third proposal which included a 70/30 or 60/40 medical cost sharing arrangement (versus the
80/20 arrangement GCEA proposed). The City also proposed a one-year contract, as opposed
to GCEA's proposed three-year contract. The City explained its position by referencing the
uncertainty as to "where things are headed in the future." The City, however, did not change
its position on PERS cost sharing, two-tier retirement, and medical cost-sharing.
At the July 13, 2010 negotiation session, GCEA offered a one-year package proposal that
contained the following terms: (1) employee would pick up 25% of medical increases; (2)
two-tier formula of 2% at 55; (3) employee contribution of 0.25% of the City's PERS
contribution; (4) adding three lower steps to the salary range; (5) the willingness to work
jointly on non-economic items; and (6) MOU "clean-up." Mr. Doyle expressed that the City
needed additional concessions from GCEA.
During the July 19, 2010 bargaining session, the City presented GCEA with its fourth proposal
which included the following terms:
1. Employees pay 75% of medical premium increases (an improvement over prior
proposal that called for employees paying 100%);
2. 2% at 55 retirement tier for new hires (an improvement over prior proposal of 2% at
60), provided that GCEA agree to the "average of the three highest years" calculation
method for new hires, as opposed to the single highest year; and
3. "increase current cost sharing provisions for the employer position of the PERS
contribution from 0.5% to 2.0%; OR, IN THE ALTERNATIVE, a 1.5% base salary
decrease."
GCEA agreed to take the proposal to its members for a vote.
During the August 18, 2010 bargaining session, GCEA presented the City with a one-year
counter-proposal, that included the following terms: (1) employees pay 50% of medical
increases (instead of the City's proposed 75%); (2) 2% at 55 at single highest year (instead of
the City's proposed 2% at $5 with calculation method of three highest years); (3) employees
pay .75% of the City's portion of PERS (instead of City's proposed 2%); (4) adding three
lower steps to salary range; (5) willingness to work jointly on non-economic items and MOU
'clean-up"; (6) changes to boot allowance [charge does not specify]; (7) reduce floating
holiday allowance by 16 hours; (8) memorializing language on a salary tie [charge does not
specify]; (9) revising language on acting assignments [charge does not specify]; (10) addition
of a "maintenance of benefits" clause (i.e., no additional cuts to benefits, layoffs, furloughs, or
reduced work hours); (11) providing certification pay for waste-water employees [charge does
LA-CE-672-M
May 26, 2011
Page 4
Mr. Doyle advised GCEA that while he and the City appreciated the movement
on
PERS cost
sharing, it seemed that negotiations were "getting to the point where there is no process being
made
on
either side."
During the July 7, 2010 meeting, Mr. Phillips was not able to attend. The City presented a
third proposal which included a 70/30 or 60/40 medical cost sharing arrangement (versus the
80/20 arrangement GCEA proposed). The City also proposed a one-year contract, as
opposed
to
GCEA's
proposed three-year contract. The City explained its position by referencing the
uncertainty as to "where things are headed in the future." The City, however, did not change
its position on PERS cost sharing, two-tier retirement, and medical cost-sharing.
At the July 13, 2010 negotiation session, GCEA offered a one-year package proposal
that
contained the following terms: (1) employee would pick up 25%
of
medical increases; (2)
two-tier formula
of
2% at 55; (3) employee contribution
of
0.25%
of
the City's PERS
contributio_n; ( 4) adding three lower steps to the salary range; (5) the willingness to work
jointly on non-economic items; and (6) MOU "clean-up." Mr. Doyle expressed that the City
needed additional concessions from GCEA.
During the July 19, 2010 bargaining session, the City presented GCEA with its fourth proposal
which included the following terms:
1.	
Employees pay 75%
of
medical premium increases (an improvement over prior
proposal that called for employees paying 100%);
2. 	2% at 55 retirement tier for new hires (an improvement over prior proposal
of 2%
at
60), provided that GCEA agree to the "average
of
the three highest years" calculation
method for new hires, as opposed to the single highest year; and
3. 	"increase current cost sharing provisions for the employer position
of
the PERS
contribution from 0.5% to 2.0%; OR, IN THE ALTERNATIVE, a 1.5% base salary
decrease."
GCEA agreed to take the proposal to its members for a vote.
During the August 18, 2010 bargaining session, GCEA presented the City with a one-year
counter-proposal, that included the following terms: (1) employees pay 50%
of
medical
increases (instead
of
the City's proposed 75%); (2) 2% at 55 at single highest year (instead
of
the City's proposed 2% at 55 with calculation method
of
three highest years); (3) employees
pay .75%
of
the City's portion
of
PERS (instead
of
City's proposed 2%); (4) adding three
lower steps to salary range; (5) willingness to work jointly on non-economic items and MOU
"clean-up"; (6) changes to boot allowance [charge does not specify]; (7) reduce floating
holiday allowance by 16 hours; (8) memorializing language on a salary tie [charge does not
specify]; (9) revising language on acting assignments [charge does not specify]; (10) addition
of a "maintenance of benefits" clause (i.e., no additional cuts to benefits, layoffs, furloughs, or
reduced work hours); (11) providing certification pay for waste-water employees [charge does

LA-CE-672-M
May 26, 2011
Page 5
not specify amount]; (12) providing fiber optic pay [charge does not specify amount]; and (13)
converting merit step to step 9 on salary range. GCEA's proposal also included terms that
reflected the parties' tentative agreement on certain items. No agreement was reached during
this meeting.
The parties had agreed to meet for bargaining on August 25, 2010. Shortly before the meeting,
Mr. Phillips informed Mr. Doyle in an e-mail message that he was canceling the meeting and
that he did not want GCEA to meet with the City without him. Mr. Phillips also stated that he
would inform the City of another date for meeting. One hour later, Mr. Doyle responded by e-
mail with the City's "Conditional Last, Best Final Meet and Confer Proposal" (Conditional
LBFO) which proposes the following:
1. Term: One Year
Salary Adjustment: 0%
3. Salary Step: Restructure salary step structure to increase
number of steps from current six to nine steps. Add three lower
steps to beginning of salary range for each represented unit
classification; leave remaining six steps, including Merit (M) step
intact.
4. Standby Pay: Incorporate standby pay provision for non-
designated unit classifications, as per side letter agreement of
1/19/10.
5. Medical Insurance: Employee to pay 50% of the increase in
medical insurance premiums that took effect 6/1/10, starting
7/1/10.
6. PERS Retirement: Implement 2" tier retirement of 2% at 55,
with the three average highest years, for all new hires after
January 1, 2011.
7. PERS Retirement Cost Sharing: Increase current cost-
sharing provisions for the employer portion of the PERS
contribution from 0.5% to 2.0%. In the event that this Last, Best
and Final proposal does not result in a ratified agreement, the
City shall seek implementation of a 1.5% base salary decrease in
lieu of the increased PERS cost-sharing, and this alternate
proposal shall be considered incorporated into the City's written
proposal of July 19, 2010.
8. Acting Assignment: Assigned after five (5) consecutive
calendar days.
LA-CE-672-M
May 26, 2011
Page 5
not specify amount]; (12) providing fiber optic pay [charge does not specify amount]; and (13)
converting merit step to step 9 on salary range. 	GCEA's proposal also included terms
that
reflected the parties' tentative agreement on certain items. No agreement was reached during
this meeting.
The parties had agreed to meet for bargaining on August 25, 2010. Shortly before the meeting,
Mr. Phillips informed Mr. Doyle in an e-mail message that he was canceling the meeting and
that he did not want GCEA to meet with the City without him. Mr. Phillips also stated
that
he
would inform the City
of
another date for meeting. One hour later, Mr. Doyle responded
by
e-
mail with the City's "Conditional Last, Best Final Meet and Confer Proposal" (Conditional
LBFO) which proposes the following:
1.
Term: 	One Year
2.	
2. Salary Adjustment: 0%
3.
Salary Step: Restructure salary step structure to increase
number
of
steps from current six to nine steps. Add three lower
steps to beginning
of
salary range for each represented unit
classification; leave remaining six steps, including Merit (M) step
intact.
4.
Standby Pay: Incorporate standby pay provision for non-
designated unit classifications, as per side letter agreement
of
1/19/10.
5. Medical Insurance: Employee to pay 50%
of
the increase in
medical insurance premiums that took effect 6/1/10, starting
7/1/10.
6.
PERS Retirement: Implement 2nd
tier retirement
of
2% at 55,
with the three average highest years, for all new hires after
January
1,
2011.
7.
PERS Retirement Cost Sharing: Increase current cost-
sharing provisions for the employer portion
of
the PERS
contribution from 0.5% to 2.0%. In the event that this Last, Best
and Final proposal does not result in a ratified agreement, the
City shall seek implementation
of
a 1.5% base salary decrease in
lieu of the increased PERS cost-sharing, and this alternate
proposal shall be considered incorporated into the City's written
proposal of July 19, 2010.
8. Acting Assignment: Assigned after five (5) consecutive
calendar days.

LA-CE-672-M
May 26, 2011
Page 6
9. Uniform Allowance/Forensics: Adjust uniform allowance to
the same level Community Service Officers.
10. Overtime Definition/Communications & Jail: Adjust rate
of overtime for hours worked between 161 and 168 . . .
11. Uniform/Boot Allowance: Eliminate boot allowance. Agree
to provide one pair of working boots. . . to all employees in all
classifications currently covered by the MOU and those
additional classifications as proposed in the GCEA proposal, on
annual basis.
12. Non-Economic Items: Work jointly with GCEA on non-
economic operational items.
13. "Clean-Up" Language: Work jointly with GCEA on other
non-economic "clean-up" language items throughout the written
MOU.
14. GCEA Proposals: The City proposes to expand not greater
than $175,000 per fiscal year in funding any or all of the
following GCEA-proposals made by GCEA on August 18, 2010:
a) Certification Pay-Wastewater Unit
b) Fiber Optic Pay-GWP Stations Maintenance Unit
c) Salary Tie-GWP Stations Maintenance Unit
The City shall maintain a record of. . ..
15. Impasse Procedures: In the event that this Conditional Last,
Best and Final Offer does not result in a ratified agreement, the
parties shall be at impasse. MOU Article Ten, Section VI,
provides that should impasse be reached regarding the negotiation
of a successor agreement, the City and the [GCEA] shall meet
and confer to establish an impasse procedure to resolve the
disagreement. Therefore, and as an excess of caution, the City
proposed that any necessary impasse process be confined to
submission of the dispute directly to the City Council for its
resolution.
16.
Conditional Last, Best and Final Offer shall remain valid through
and including August 31, 2010. .. . In the event that this
Conditional Last, Best and Final Offer is either not ratified by the
[GCEA] or if timely ratification notice is not provided, the
LA-CE-672-M
May 26, 2011
Page 6
9. Uniform Allowance/Forensics: Adjust uniform allowance to
the same level Community Service Officers.
10. Overtime Definition/Communications & Jail: Adjust rate
of overtime for hours worked between 161 and 168 ...
11. Uniform/Boot Allowance: Eliminate boot allowance. Agree
to provide one pair of working boots ... to all employees in all
classifications currently covered by the MOU and those
additional classifications as proposed in the GCEA proposal, on
annual basis.
12. Non-Economic Items: 	Work jointly with GCEA on non-
economic operational items.
13. "Clean-Up" Language: 	Work jointly with GCEA on other
non-economic "clean-up" language items throughout the written·
MOU.
14. GCEA Proposals: The City proposes to expand not greater
than $175,000 per fiscal year in funding any or all of the
following GCEA-proposals made by GCEA on August 18, 2010:
a) Certification Pay-Wastewater Unit
b) Fiber Optic Pay-GWP Stations Maintenance Unit
c) Salary Tie-GWP Stations Maintenance Unit
The City shall maintain a record of. ...
15. Impasse Procedures: 	In the event that this Conditional Last,
Best and Final Offer does not result in a ratified agreement, the
parties shall be at impasse. 	MOU Article Ten, Section VI,
provides that should impasse be reached regarding the negotiation
of a successor agreement, the City and the [GCEA] shall meet
and confer to establish an impasse procedure to resolve the
disagreement. Therefore, and as an excess of caution, the City
proposed that any nece~sary impasse process be confined to
submission of the dispute directly to the City Council for its
resolution.
16. Duration of Time to Enter into Agreement: This	Duration of Time to Enter into Agreement: 	This
Conditional Last, Best and Final Offer shall remain valid through
and including August 31, 2010 .... In the event that this
Conditional Last, Best and Final Offer is either not ratified by the
[GCEA] or if timely ratification notice is not provided, the

LA-CE-672-M
May 26, 2011
Page 7
Conditional Last, Best and Final Offer shall be concurrently
amended by reversion to the written City proposal dated July 19,
2010, which shall itself become the Last, Best and Final City
Offer.
Mr. Doyle's e-mail message explained that the proposal was "conditional' in that the City's
July 19, 2010 written proposal shall automatically become the City's Last, Best and Final
proposal if the August 25, 2010 attachment is not timely ratified." On that day (August 25,
2010), GCEA's membership rejected the City's July 19, 2010 proposal.
On August 26, 2010, GCEA confirmed receipt of the City's Conditional LBFO and advised the
City that such proposal would be presented to the GCEA membership for vote.
On September 17, 2010, GCEA informed the City that GCEA rejected the August 25, 2010
proposal.
On September 21, 2010, the City declared impasse. Mr. Doyle reminded GCEA that, as
previously stated, the City's July 19, 2010 proposal would be subject to the impasse
procedures. Mr. Doyle also advised that, given the MOU language which required the parties
to meet and confer regarding an impasse procedure, the City's proposal was that the impasse
procedure consist only of submission of the issue to the City Council for resolution.
The parties met on October 6, 2010 to discuss impasse resolution procedures. GCEA
presented a comprehensive written proposal, containing concessions, for consideration by a
mediator. Mr. Phillips informed the City's representative that he could "guarantee" $1 million
in concessions if considered through the mediation process. The City representative responded
that although there is no change in the City's position that an impasse exists, if GCEA could
provide a mediation-related proposal, the City would review it to determine if the proposal
alters the City's position that the impasse is not subject to mediation.
On October 7, 2010, GCEA provided the City with a "Mediation Proposal for a Successor
MOU 2010 Through 6/30/12." The City reviewed the proposal, but ultimately rejected it since
that proposal did not modify the City's position that the impasse dispute should be next
submitted to the City Council for resolution. In an October 18, 2010 e-mail message to Mr.
Phillips, Mr. Doyle states that the GCEA's mediation proposal "does nothing to address the
systematic compensation issues which must be resolved in order to minimize the ongoing, long
term economic difficulties being experienced by the City." The parties remained at impasse on
defining impasse resolution procedures. No additional meetings were scheduled for discussing
the impasse resolution procedures.
On October 26, 2010, Mr. Doyle sent Mr. Phillips an e-mail message informing him that, on
November 2, 2010, the City would be advising the City Council that the parties were at
impasse as to the successor MOU, and at impasse on selecting impasse procedures. Mr. Doyle
also advised Mr. Phillips that the City would be recommending that the City Council adopt and
implement the City's July 19, 2010, last, best and final offer, with a continuance of the current
LA-CE-672-M
May 26, 2011
Page 7
Conditional Last, Best and Final Offer shall be concurrently
amended by reversion to the written City proposal dated July 19,
2010, which shall itself become the Last, Best and Final City
Offer.
Mr. Doyle's e-mail message explained that the proposal was "'conditional' in that the City's
July 19, 2010 written proposal shall automatically become the City's Last, Best and Final
proposal if the August 25, 2010 attachment is not timely ratified." On that day (August 25,
2010), GCEA's membership rejected the City's July 19, 2010 proposal.
.
On August 26, 2010, GCEA confirmed receipt of the City's Conditional LBFO and advised the
City that such proposal would be presented to the GCEA membership for vote.
On September 17, 2010, GCEA informed the City that GCEA rejected the August 25, 2010
proposal.
.On September 21, 2010, the City declared impasse. 	Mr. Doyle reminded GCEA that, as
previously stated, the City's July 19, 2010 proposal would be subject to the impasse
procedures. Mr. Doyle also advised that, given the MOU language which required the parties
to meet and confer regarding an impasse procedure, the City's proposal was that the impasse
procedure consist only of submission of the issue to the City Council for resolution.
The parties met on October 6, 2010 to discuss impasse resolution procedures. GCEA
presented a comprehensive written proposal, containing concessions, for consideration by a
mediator. Mr. Phillips informed the City's representative that he could "guarantee" $1 million
in concessions if considered through the mediation process. The City representative responded
that although there is no change in the City's position that an impasse exists, if GCEA could
provide a mediation-related proposal, the City would review it to determine if the proposal
alters the City's position that the impasse is not subject to mediation.
On October 7, 2010, GCEA provided the City with a "Mediation Proposal for a Successor
MOU 2010 Through 6/30/12." The City reviewed the proposal, but ultimately rejected it since
that proposal did not modify the City's position that the impasse dispute should be next
submitted to the City Council for resolution. In an October 18, 2010 e-mail message to Mr.
Phillips, Mr. Doyle states that the GCEA's mediation proposal "does nothing to address the
systematic compensation issues which must be resolved in order to minimize the ongoing, long
term economic difficulties being experienced by the City." The parties remained at impasse on
defining impasse resolution procedures. No additional meetings were scheduled for discussing
the impasse resolution procedures.
On October 26, 2010, Mr. Doyle sent Mr. Phillips an e-mail message informing him that, on
November 2, 2010, the City would be advising the City Council that the parties were at
impasse as to the successor MOU, and at impasse on selecting impasse procedures. Mr. Doyle
also advised Mr. Phillips that the City would be recommending that the City Council adopt and
implement the City's July 19, 2010, last, best and final offer, with a continuance of the current

LA-CE-672-M
May 26, 2011
Page 8
MOU provision for a 50/50 split of medical premium increases. Mr. Phillips confirmed that he
would be at that City Council meeting
On November 2, 2010, the City Council passed a resolution that the parties' impasse regarding
the type of impasse procedure to employ was resolved by the City Council which determined
that the impasse should be resolved and addressed solely by the City Council. In that same
resolution, the City Council also resolved the parties' meet and confer impasse for a successor
agreement by implementing terms from the City's last, best, and final offer effective
immediately. The City Council's resolution also modified the July 19, 2010 proposal
regarding medical insurance contributions to provide that employees pay 50% of medical
insurance premiums. The July 19, 2010 proposal originally required that employees pay 75%
of the premium.
DISCUSSION
Although not clearly stated, it appears the Charging Party is alleging that the City violated
MMBA section 3505 and PERB Regulation 32603(c) and (e) by engaging in bad faith or
"surface" bargaining. For conduct that occurs prior to the impasse phase, PERB Regulation
32603(c) is at issue. The MOU contains procedures for determining the impasse resolution
procedure when impasse is reached. As such, for conduct occurring during and prior to the
exhaustion of the City's impasse procedures, PERB Regulation 32603(e) is at issue. However,
conduct within that time-frame cannot also be the basis for a violation of PERB Regulation
32603(c). (See, e.g., Moreno Valley Unified School District v. Public Employment Relations
Board (1983) 142 Cal.App.3d 191 [holding that a violation of Educational Employment
Relations Act section 3543.5(c) cannot be based on conduct occurring during impasse
procedures].) As described in the corresponding heading below, this letter will address alleged
bad faith bargaining conduct occurring both during and before the impasse phase.
PERB uses the same bad faith bargaining analysis for violations of either PERB Regulation
32603(c) or (e). (See, e.g., Ventura County Community College District (1998) PERB
PERB Regulation 32603 states, in relevant part:
It shall be an unfair practice for a public agency to do any of the
following:
(c) Refuse or fail to meet and confer in good faith with an
exclusive representative as required by Government Code section
3505 or any local rule adopted pursuant to Government Code
section 3507.
(e) Fail to exercise good faith while participating in any impasse
procedure mutually agreed to pursuant to Government Code
section 3505 or 3505.2 or required by any local rule adopted
pursuant to Government Code section 3507.
LA-CE-672-M
May 26, 2011
Page 8
MOU provision for a 50/50 split
of
medical premium increases. Mr. Phillips confirmed that he
would be at that City Council meeting.
On November
2,
2010, the City Council passed a resolution that the parties' impasse regarding
the type
of
impasse procedure to employ was resolved by the City Council which determined
that the impasse should be resolved and addressed solely by the City Council. In that same
resolution, the City Council also resolved the parties' meet and confer impasse for a successor
agreement by implementing terms from the City's last, best, and final offer effective
immediately. The City Council's resolution also modified the July 19, 2010 proposal
regarding medical insurance contributions to provide that employees pay 50%
of
medical
insurance premiums. The July 19, 2010 proposal originally required that employees pay 75%
of
the premium.
DISCUSSION
Although not clearly stated, it appears the Charging Party is alleging that the City violated
MMBA section 3505 and PERB Regulation 32603(c) and
(e)3
by engaging in bad faith
or
"surface" bargaining. For conduct that occurs prior
to
the impasse phase, PERB Regulation
32603 ( c) is at issue. The MOU contains procedures for determining the impasse resolution
procedure when impasse is reached. As such, for conduct occurring during and prior to the
exhaustion
of
the City's impasse procedures, PERB Regulation 32603(e) is at issue. However,
conduct within that time-frame cannot also be the basis for a violation
of
PERB Regulation
32603(c). (See, e.g., Moreno Valley Unified School District
v.
Public Employment Relations
Board (1983) 142 Cal.App.3d
191
[holding that a violation
of
Educational Employment
Relations Act section 3543.S(c) cannot be based on conduct occurring during impasse
procedures].) As described in the corresponding heading below, this letter will address alleged
bad faith bargaining conduct occurring both during and before the impasse phase.
PERB uses the same bad faith bargaining analysis for violations
of
either PERB Regulation
32603(c) or (e). (See, e.g., Ventura County Community College District (1998) PERB
3 PERB Regulation 32603 states, in relevant part:
It shall be an unfair practice for a public agency to do any
of
the
following:
(c) Refuse or fail to meet and confer in good faith with an
exclusive representative as required by Government Code section
3505 or any local rule adopted pursuant to Government Code
section 3507.
(e) Fail to exercise good faith while participating in any impasse
procedure mutually agreed to pursuant to Government Code
section 3505 or 3505.2 or reqt1irecl by any local rule adopted
pursuant to Government Code section 3507.

LA-CE-672-M
May 26, 2011
Page 9
Decision No. 1264.) Bargaining in good faith is a "subjective attitude and requires a genuine
desire to reach agreement." (Placentia Fire Fighters v. City of Placentia (1976) 57
Cal.App.3d 9, 25 (Placentia Fire Fighters).) PERB has held it is the essence of surface
bargaining that a party goes through the motions of negotiations, but in fact is weaving
otherwise unobjectionable conduct into an entangling fabric to delay or prevent agreement.
Muroc Unified School District (1978) PERB Decision No. 80.) Where there is an accusation
of surface bargaining, PERB will resolve the question of good faith by analyzing the totality of
the accused party's conduct. The Board weighs the facts to determine whether the conduct at
issue "indicates an intent to subvert the negotiating process or is merely a legitimate position
adamantly maintained." (Oakland Unified School District (1982) PERB Decision No. 275;
Placentia Fire Fighters, at p. 25.)
The indicia of surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude evidences a failure of the duty to bargain because it amounts to merely going through
the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194, enf. 418 F.2d
736.) Recalcitrance in the scheduling of meetings is evidence of manipulation to delay and
obstruct a timely agreement. (Oakland Unified School District (1983) PERB Decision No.
326.) Dilatory and evasive tactics including canceling meetings or failing to prepare for
meetings is evidence of bad faith. (Ibid.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence of an unwillingness to engage in a give-
and-take. (State of California (Department of Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include: negotiator's lack
of authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134); and reneging on tentative
agreements the parties already have made (Charter Oak Unified School District (1991) PERB
Decision No. 873; Stockton Unified School District, supra; Placerville Union School District
(1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may lawfully
maintain an adamant position on any issue. Adamant insistence on a bargaining position is not
necessarily refusal to bargain in good faith. (Placentia Fire Fighters, supra, 57 Cal.App.3d 9,
25; Oakland Unified School District, supra, PERB Decision No. 275.) "The obligation of the
employer to bargain in good faith does not require the yielding of positions fairly maintained."
(NLRB v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229.)
Additionally, PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge
include a "clear and concise statement of the facts and conduct alleged to constitute an unfair
practice." The charging party's burden includes alleging the "who, what, when, where and
how" of an unfair practice. (State of California (Department of Food and Agriculture) (1994)
PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)
LA-CE-672-M
May 26, 2011
Page 9
Decision No. 1264.) Bargaining in good faith is a "subjective attitude and requires a genuine
desire to reach agreement." (Placentia Fire Fighters v. City of Placentia (1976) 57
Cal.App.3d 9, 25 (Placentia Fire Fighters).) PERB has held it is the essence of surface
bargaining that a party goes through the motions of negotiations, but in fact is weaving
otherwise unobjectionable conduct into an entangling fabric to delay or prevent agreement.
(Muroc Unified School District (1978) PERB Decision No. 80.) Where there is an accusation
of surface bargaining, PERB will resolve the question of good faith by analyzing the totality of
the accused party's conduct. The Board weighs the facts to determine whether the conduct at
issue "indicates an intent to subvert the negotiating process or is merely a legitimate position
adamantly maintained." (Oakland UnifiedSchool District (1982) PERB Decision No. 275;
Placentia Fire Fighters, at p. 25.)
The indicia of surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude evidences a failure of the duty to bargain because it amounts to merely going through
the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194, enf. 418 F.2d
736.) Recalcitrance in the scheduling of meetings is evidence of manipulation to delay and
obstruct a timely agreement. (Oakland Un[fied School District (1983) PERB Decision No.
326.) Dilatory and evasive tactics including canceling meetings or failing to prepare for
meetings is evidence of bad faith. 	(Ibid) 	Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence of an unwillingness to engage in a give-
and-take. (State of California (Department of Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include: negotiator's lack
of authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134); and reneging on tentative
agreements the parties already have made (Charter Oak Unified School District (199l)PERB
Decision No. 873; Stockton Unified School District, supra; Placerville Union School District
(1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may lawfully
maintain an adamant position on any issue. Adamant insistence on a bargaining position is not
necessarily refusal to bargain in good faith. 	(Placentia Fire Fighters, supra, 57 Cal.App.3d 9,
25; Oakland Unified School District, supra, PERB Decision No. 275.) "The obligation of
employer to bargain in good faith does not require the yielding of positions fairly maintained."
(NLRB v. Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229.)
Additionally, PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge
include a "clear and concise statement of the facts and conduct alleged to constitute an unfair
practice." The charging party's burden includes alleging the "who, what, when, where and
how" of an unfair practice. (State of California (Department of Food and Agriculture) (1994)
PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)

LA-CE-672-M
May 26, 2011
Page 10
I. Conduct Occurring Prior to Impasse Phase
It appears Charging Party is alleging that the City engaged in surface bargaining in violation of
MMBA section 3505 and PERB Regulation 32603(c) by engaging in: (1) hard bargaining; and
2) regressive bargaining. As discussed in the corresponding headings, the charge fails to
demonstrate that the City engaged in surface bargaining prior to reaching an impasse."
A. Hard Bargaining
Although not clear from the charge, it appears Charging Party is alleging that the City engaged
in surface bargaining by repeatedly rejecting GCEA's cost-cutting proposals (e.g., early
retirement incentive and work furloughs). There are no facts in the record to show that the
City refused to negotiate about any matter within the scope of representation. During
bargaining, the City emphasized the need to establish a two-tier retirement system, and have
employees contribute more towards PERS and medical benefit premiums. The City also
pointed out that it needed to make long term structural changes. The charge further admits that
GCEA recognized the "financial condition of the City and of the economy generally." The
City's insistence that employees pay more towards their retirement appears to be hard
bargaining. Accordingly, it appears the City's refusal to agree to proposals relating to cost-
cutting demonstrates an adamant position during bargaining. (Placentia Fire Fighters, supra,
57 Cal.App.3d 9, 25; Oakland Unified School District, supra, PERB Decision No. 275.)
When a party preemptively announces it will not deviate from a position under any
circumstances, bad faith may be inferred. (Regents of the University of California (1983)
PERB Decision No. 365-H at pp. 21-22.) However, this is not what happened here. Although
the City espoused a hard line, it appears that such a position was not etched in stone. Facts in
the record show that the City met with GCEA at least nine times from March 2010 through
PERB has defined impasse in the following terms: "[IImpasse exists where the parties
have considered each other's proposals and counterproposals, attempted to narrow the gap of
disagreement and have, nonetheless, reached a point in their negotiations where continued
discussion would be futile." (Mt. San Antonio Community College District (1981) PERB
Order No. Ad-124, p. 5.) PERB's analysis has focused on a number of objective factors,
including the number and length of negotiating sessions, the extent to which the parties have
made and discussed counter-proposals to each other, the number of tentative agreements, and
the number of unresolved issues. (Cal. Code of Regs., tit. 8, sec. 32793(c); but see Regents of
the University of California (1985) PERB Decision No. 520-H, p. 19 [good faith negotiating
considered].) In this case, it appears that impasse over a successor MOU was reached on or
about September 2010 after nine bargaining sessions. At that time, there was substantial
disagreement on core economic issues, centered around salary reductions in lieu of PERS cost-
sharing. No further proposals or counterproposals for a successor MOU were made after
GCEA rejected the City's August 25, 2010 Conditional LBFO, and at the next bargaining
session (October 6, 2010), the parties negotiated over impasse resolution procedures.
Accordingly, it appears that proposals for a successor MOU concluded in September 2010 and
that the parties were at impasse.
LA-CE-672-M
May 26, 2011
Page 10
I.
	Conduct Occurring Prior to Impasse Phase
It appears Charging Party is alleging that the City engaged in surface bargaining in violation
of
MMBA section 3505 and PERB Regulation 32603(c) by engaging in: (1) hard bargaining; and
(2) regressive bargaining. As discussed in the corresponding headings, the charge fails to
demonstrate that the City engaged in surface bargaining prior to reaching an impasse.4
A. Hard Bargaining
Although not clear from the charge, it appears Charging Party is alleging that the City engaged
in surface bargaining by repeatedly rejecting GCEA's cost-cutting proposals (e.g., early
retirement incentive and work furloughs). 	There are no facts in the record to show that
the
City refused to negotiate about any matter within the scope
of
representation. During
bargaining, the City emphasized the need to establish a two-tier retirement system, and
have
employees contribute more towards PERS and medical benefit premiums. The City also
pointed out that it needed to make long term structural changes. The charge further admits that
GCEA recognized the "financial condition
of
the City and
of
the economy generally."
The
City's insistence that employees pay more towards their retirement appears to be hard
bargaining. Accordingly, it appears the City's refusal to agree to proposals relating to cost-
cutting demonstrates an adamant position during bargaining. (Placentia Fire Fighters, supra,
57 Cal.App.3d 9, 25; Oakland Unified School District, supra, PERB Decision No. 275.)
When a party preemptively announces it will not deviate from a position under any
circumstances, bad faith may be inferred. (Regents
of
the University
of
California (1983)
PERB Decision No. 365-H at pp. 21-22.) However, this is not what happened here. Although
the City espoused a hard line, it appears that such a position was not etched in stone. Facts in
the record show that the City met with GCEA at least nine times from March 2010 through
4 PERB has defined impasse in the following terms: "[I]mpasse exists where the parties
have considered each other's proposals and counterproposals, attempted to narrow the gap
of
disagreement and have, nonetheless, reached a point in their negotiations where continued
discussion would be futile." (Mt. San Antonio Community College District ( 1981) PERB
Order No. Ad-124, p. 5.) PERB's analysis has focused on a number
of
objective factors,
including the number and length
of
negotiating sessions, the extent to which the parties have
made and discussed counter-proposals to each other, the number
of
tentative agreements, and
the number
of
unresolved issues. 	(Cal. Code
of
Regs., tit. 8, sec. 32793(c); but see Regents
of
the University
of
California (1985) PERB Decision No. 520-H, p. 19 [good faith negotiating
considered].) In this case, it appears that impasse over a successor MOU was reached on or
about September 2010 after nine bargaining sessions. At that time, there was substantial
disagreement on core economic issues, centered around salary reductions in lieu
of
PERS cost-
sharing. No further proposals or counterproposals for a successor MOU were made after
GCEA rejected the City's August 25, 2010 Conditional LBFO, and at the next bargaining
session (October 6, 2010), the parties negotiated over impasse resolution procedures;
Accordingly, it appears that proposals for a successor MOU concluded in September 2010 and
that the parties were at impasse.

LA-CE-672-M
May 26, 2011
Page 11
September 2010, presented GCEA with four proposals, reached tentative agreement on some
items, and made some improvement in subsequent proposals. For example the July 19, 2010
proposal improved the employee medical premium increase from 100% to 75% and improved
the retirement formula for new hires from 2% at 60 to 2% at 55. Further, the City modified its
position regarding the medical premium increase from 75% to 50% with its November 2, 2010
implementation of its last, best, and final offer. Accordingly, the charge fails to demonstrate
that the City did not have a subjective intent to reach an agreement.
B. Regressive Bargaining
Regressive bargaining is one indicia of surface bargaining. (Chino Valley Unified School
District (1999) PERB Decision No. 1326 [by reneging on tentative agreements, employer
engaged in regressive bargaining techniques, which is one indicator of bad faith bargaining].)
The charge alleges that the City regressed from its August 25, 2010 Conditional LBFO by
implementing the July 19, 2010 proposal on November 2, 2010. The August 25, 2010
Conditional LBFO contains proposals for caps on "Certification Pay[,] Fiber Optic Pay[, and]
Salary Tie Pay" which "benefited GCEA." The July 19, 2010 proposal did not include such
benefits. Arguably, the August 25, 2010 Conditional LBFO included better terms than the
July 19, 2010 proposal. However, the presence of one indicia alone will not establish bad faith
bargaining. (Oakland Unified School District (1996) PERB Decision No. 1156.)
For these reasons, the charge fails to state a prima facie case that the City engaged in surface
bargaining under MMBA section 3505 and PERB Regulation 32603(c).
II. Conduct Occurring During and Before The Exhaustion of the City's Impasse Procedures
Although not clear from the charge, it appears Charging Party is alleging that the City engaged
in surface bargaining during bargaining for the impasse resolution procedures.
To determine whether a party has alleged sufficient facts to state a prima facie case that a party
to negotiations failed to participate in impasse procedures in good faith, PERB examines
alleged indicia of bad faith in the context of the totality of the parties' post-impasse conduct.
(Kings In-Home Supportive Services Public Authority (2009) PERB Decision No. 2009-M;
Newark Unified School District (2007) PERB Decision No. 1895; City of Fresno v. People Ex
Rel. Fresno Firefighters (1999) 71 Cal.App.4th 82; PERB Reg. 32603(e).)
Facts in the record show that the parties met on October 6, 2010 to negotiate over the impasse
resolution procedure pursuant to MOU Article Ten, Section VI which requires the parties to
Not all of the provisions implemented on November 2, 2010 were less beneficial to
pay 75% of the increase in medical insurance premiums, the City modified that proposal to
provide that employees pay 50% of any premium increase. This modification was the same
proposal made with the City's August 25, 2010 Conditional LBFO.
LA-CE-672-M
May 26, 2011
Page 11
September 2010, presented GCEA with four proposals, reached tentative agreement on some
items, and made some improvement in subsequent proposals. For example the July 19, 2010
proposal improved the employee medical premium increase from 100% to 75% and improved
the retirement formula for new hires from 2% at 60 to 2% at 55. Further, the City modified its
position regarding the medical premium increase from 75% to 50% with its November 2, 2010
implementation of its last, best, and final offer. Accordingly, the charge fails to demonstrate
that the City did not have a subjective intent to reach an agreement.
B. Regressive Bargaining
Regressive bargaining is one indicia of surface bargaining. (Chino Valley Unified School
District (1999) PERB Decision No. 1326 [by reneging on tentative agreements, employer
engaged in regressive bargaining techniques, which is one indicator of bad faith bargaining].)
The charge alleges that the City regressed from its August 25, 2010 Conditional LBFO by
implementing the July 19, 2010 proposal on November 2, 2010. The August 25, 2010
Conditional LBFO contains proposals for caps on "Certification Pay[,] Fiber Optic Pay[, and]
Salary Tie Pay" which "benefited GCEA." The July 19, 2010 proposal did not include such
benefits. 5 Arguably, the August 25, 2010 Conditional LBFO included better terms than the
July 19, 2010 proposal. However, the presence of one indicia alone will not establish bad faith
bargaining. (Oakland Unified School District (1996) PERB Decision No. 1156.)
For these reasons, the charge fails to state a prima facie case that the City engaged in surface
bargaining under MMBA section 3505 and PERB Regulation 32603(c).
II. 	Conduct Occurring During and Before The Exhaustion of the City's Impasse Procedures
Although not clear from the charge, it appears Charging Party is alleging that the City engaged
in surface bargaining during bargaining for the impasse resolution procedures.
""''·
To determine whether a party has alleged sufficient facts to state a prima facie case that a party
to negotiations failed to participate in impasse procedures in good faith, PERB examines
alleged indicia of bad faith in the context of the totality of the parties' post-impasse conduct.
(Kings In-Home Supportive Services Public Authority (2009) PERB Decision No. 2009-M;
Newark Unified School District (2007) PERB Decision No. 1895; City of Fresno v. People Ex
Rel. Fresno Firefighters (1999) 71 Cal.App.4th 82; PERB Reg. 32603(e).)
Facts in the record show that the parties met on October 6, 2010 to negotiate over the impasse
resolution procedure pursuant to MOU Article Ten; Section VI which requires the parties to
5 Not all of the provisions implemented on November 2, 2010 were less beneficial to
GCEA. Although the medical insurance proposal in the July 19, 2010 provided that employees	GCEA. Although the medical insurance proposal in the July 19, 2010 provided that employees
pay 7 5% of the increase in medical insurance premiums, the City modified that proposal to
y.Lv	1"'\1'"/"HT;,1,,.	Y.l.\..t-V that	1,.,J. l,. ""'mployees	V.l .l 	pa''	.) .,J"	"0°"-	/(; r.f'	V_i_ an"	1.l.J P'""'"";Um	1.V.lJ._j._.l 	j_ ;11r-rease	1. ....,. 	• Tl-,;c,	.i..J.1..LU ,,.,...,.,,'!;-F;"a+;,	.Li...iVU-l..L..l....., ·1.-1.v.u	....n .. "'as	vv 	the sa1
...nP.....,
proposal made with the City's August 25, 2010 Conditional LBFO.

LA-CE-672-M
May 26, 2011
Page 12
"establish an impasse procedure" when impasse is reached for a successor MOU. There is no
dispute that during the impasse meet and confer session, the City proposed that the dispute be
submitted directly to the City Council for resolution. When GCEA requested mediation, the
City explained why it did not see mediation as a useful means to resolve the parties' impasse
The City, after considering GCEA's mediation proposal, determined on October 18, 2010 that
GCEA's proposal did "nothing to address the systematic compensation issues which must be
resolved in order to minimize the ongoing, long term economic difficulties being experienced
by the City." On that basis, the City rejected GCEA's proposal for mediation as an impasse
mediation resolution procedure. No new proposals for impasse resolution were made by either
side and the parties were at impasse as to the process to be used to resolve the impasse.
The facts alleged in the charge concern the City's failure to compromise its position on the
impasse resolution process. As previously stated, adamant insistence on a bargaining position
is not necessarily a refusal to bargain in good faith. (Oakland Unified School District, supra,
PERB Decision No. 275.) Nothing in the charge establishes that the City's maintenance of its
positions on the impasse resolution process is evidence of bad faith bargaining. Additionally,
there are no facts to demonstrate that the City failed to follow the procedures set forth in MOU
Article Ten, Section VI. Accordingly, under the totality of the conduct test, GCEA has failed
to allege sufficient facts to state a prima facie case that the City engaged in surface bargaining
during and prior to the exhaustion of the impasse phase.
Although not clear from the charge, it appears Charging Party is also alleging that the City
engaged in surface bargaining by refusing to engage in impasse mediation proceedings.
However, these facts, even if accepted as true fail to show that the City violated MMBA. The
MMBA merely provides that if after a reasonable period of time the public agency and
employee organization fail to reach an agreement, the parties may agree to appoint a mediator.
(Gov. Code, $ 3505.2.) Accordingly, since mediation under the MMBA is strictly voluntary,
the City was under no obligation to participate in such a process for resolving the impasse.
(Ibid.)
CONCLUSION
For these reasons the charge, as presently written, does not state a prima facie case." 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
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.)
LA-CE-672-M
May 26, 2011
Page 12
"establish an impasse procedure" when impasse
is
reached for a successor MOU. There is no
dispute that during the impasse meet and confer session, the City proposed that the dispute be
submitted directly to the City Council for resolution. 	When GCEA requested mediation, the
City explained why it did not see mediation as a useful means to resolve the parties' impasse.
The City, after considering GCEA's mediation proposal, determined on October 18, 2010 that
GCEA's proposal did "nothing to address the systematic compensation issues which
must
be
resolved in order to minimize the ongoing, long term economic difficulties being experienced
by the City." On that basis, the City rejected GCEA's proposal for mediation as an impasse
mediation resolution procedure. No new proposals for impasse resolution were made by either
side and the parties were at impasse as to the process to be used to resolve the impasse.
The facts alleged in the charge concern the City's failure to compromise its position on the
impasse resolution process. As previously stated, adamant insistence on a bargaining position
is not necessarily a refusal to bargain in good faith. 	( Oakland Unified School District, supra,
PERB Decision No. 275.) Nothing in the charge establishes that the City's maintenance
of
its
positions on the impasse resolution process is evidence
of
bad faith bargaining. Additionally,
there are no facts to demonstrate that the City failed to follow the procedures set forth in MOU
Article Ten, Section VI. Accordingly, under the totality
of
the conduct test, GCEA has failed
to allege sufficient facts to state a prima facie case that the City engaged in surface bargaining
during and prior to the exhaustion
of
the impasse phase.
Although not clear from the charge, it appears Charging Party is also alleging that the City
engaged in surface bargaining by refusing to engage in impasse mediation proceedings.
However, these facts, even
if
accepted as true fail to show that the City violated MMBA. 	The
MMBA merely provides that
if
after a reasonable period
of
time the public agency and
employee organization fail to reach an agreement, the parties may agree to appoint a mediator.
(Gov. Code, § 3505.2.) Accordingly, since mediation under the MMBA is strictly voluntary,
the City was under no obligation to participate in such a process for resolving the impasse.
(Ibid.)
CONCLUSION
For these reasons the charge, as presently written, does not state a prima facie case.6
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. 	amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
In 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.)

LA-CE-672-M
May 26, 2011
Page 13
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
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before June 9, 2011, PERB will
dismiss your charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Yaron Partovi
Regional Attorney
YP
" A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)
LA-CE-672-M
May 26, 2011
Page 13
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
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before June 9, 2011,7 PERB will
dismiss your charge. If you have any questions, please call me at the above telephone number.
Sincerely,
Y aron Partovi
Regional Attorney
yp
7 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)