City of Davis (PERB 2271M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DAVIS CITY EMPLOYEES ASSOCIATION,
Charging Party, Case No. SA-CE-672-M
V. PERB Decision No. 2271-M
CITY OF DAVIS, June 8, 2012
Respondent.

Appearances: Beeson, Tayer & Bodine by John Provost, Attorney, for Davis City Employees
Association; Best, Best & Krieger by Stacey N. Sheston, Attorney, for City of Davis.

Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the City of Davis (City) to a decision of a
PERB administrative law judge (ALJ) (attached) finding that the City violated the Meyers-
Milias-Brown Act (MMBA)' by implementing its last, best and final offer (LBFO) without
exhausting impasse resolution procedures set forth in the City’s applicable local rules.

The Board has reviewed the proposed decision and the record in light of the City’s
exceptions and supporting brief, the response of the Davis City Employees Association
(DCEA), and the relevant law. Based on this review, the Board adopts the ALJ’s proposed

decision as its own, subject to the following discussion of the City’s exceptions.”

' The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

* On December 16, 2011, the PERB Appeals Assistant denied the City’s request for
oral argument. The Board historicaily denies requests for oral argument when an adequate
record has been prepared, the parties had ample opportunity to present briefs and have availed

FACTUAL SUMMARY3
In April 2009, the City and DCEA began negotiations for a successor agreement to
their memorandum of understanding (MOU) that was scheduled to expire on June 30, 2009.
On December 4, 2009, the City declared that the parties had reached impasse and provided its
LBFO to DCEA. The LBFO included a provision for 12 furlough days to be taken before
June 30, 2010 and a one-year term agreement. On December 17, 2009, the DCEA membership
voted to reject the LBFO.
The City's local employer-employee relations resolution (EERR) sets forth detailed
procedures for the resolution of an impasse in bargaining. Unless the parties agree to submit
the dispute directly to the City Council for determination, they are required to submit the
dispute to mediation and, if unsuccessful, to fact-finding. The fact-finder is to apply specified
standards in making written findings of fact and recommendations to the parties and, if the
dispute is still not resolved, to the City Council.
After the DCEA membership rejected the LBFO, the parties met with a mediator
obtained from the State Mediation and Conciliation Service (SMCS), but failed to reach an
agreement. At the City's request, the DCEA membership voted again on the LBFO, this time
with a three-year term, but the membership again rejected the LBFO.
On February 16, 2010, the City suggested that the parties bypass the fact-finding
process set forth in the EERR and submit the matter directly to the City Council, but DCEA
declined this request in favor of pursuing fact-finding.
themselves of that opportunity, and the issues before the Board are sufficiently clear to make oral
argument unnecessary. (City of Modesto (2008) PERB Decision No. 1994-M.) Based on our
review of the record, all of these criteria have been satisfied. Accordingly, we concur that the
City's request for oral argument is hereby denied.
3 A complete statement of the facts is set forth in the attached ALJ' s proposed decision
adopted by the Board.
2

Sometime between February 18 and 23, 2010, DCEA provided the City with the names
of five arbitrators acceptable to DCEA. However, on March 17, 2010, without notifying
DCEA, the City contacted SMCS to obtain a different list of arbitrators. On March 18, 2010,
the City requested DCEA to provide it with contact information for the arbitrators provided by
DCEA. On March 24, 2010, the City notified DCEA that Joe Henderson (Henderson), one of
the arbitrators on the SMCS list, was available for three days in late April 2010, and inquired
whether those dates were acceptable to DCEA. Although DCEA was not previously aware of
the City's communications with the SMCS arbitrators, DCEA agreed to use Henderson but
objected to the proposed dates. Through the ensuing correspondence, DCEA expressed the
desire to first obtain the arbitrator's availability before committing to dates, while the City
wanted to obtain the first available dates from the arbitrator. In addition, DCEA believed that
the process would take more time and entail more formality than the City believed appropriate
or required under the EERR.
On May 10, 2010, the City informed DCEA that the arbitrator had five dates in June
and July 2010 available, and that those dates were available for the City as well. The City
·further informed DCEA that it believed one day was sufficient, but that it would be willing to
schedule two dates. On May 13, 2010, DCEA responded that the dates of July 19 and 20,
2010, would be acceptable, but that DCEA believed additional days of fact-finding would be
required. In addition, DCEA stated that it believed a court reporter would be necessary to the
process.
On May 14, 2010, the City objected to the level of formality desired by DCEA, accused
DCEA of delaying the process and asserted that DCEA had "effectively rejected fact-finding
arbitration." The City further informed DCEA that it intended to "go to the alternative step
and promptly submit the matter to the City Council for final resolution." On May 25, 2010,
3

the City Council adopted a resolution imposing the LBFO. The City Council modified the
proposed resolution to provide that the 12 furlough days would have to be taken before
November 1, 2010, rather than June 30, 2010.
The ALJ determined that the City's act of cancelling the fact-finding dates and its
implementation of the LBFO on May 25, 2010, before exhausting impasse procedures, violated
the MMBA, PERB regulations and the City's EERR. The ALJ further determined that the City
Council's modification of the terms of the furlough plan specified in the LBFO was reasonably
contemplated within the December 4, 2009 LBFO and therefore did not violate the MMBA.4
THE CITY'S EXCEPTIONS AND DCEA'S RESPONSE
The City excepts to the ALJ' s factual findings regarding DCEA' s cooperativeness in
trying to schedule fact-finding, as well as to the ALJ's ultimate conclusion that the City failed
to meet and confer in good faith when it cancelled the fact-finding and implemented its LBFO.
DCEA asserts that any lack of cooperation on its part is irrelevant because the City refused to
proceed to fact-finding after DCEA agreed to dates proposed by the City, and that the ALJ's
factual findings are supported by the record. DCEA further asserts that it acted diligently but
that the City caused delay by acting unilaterally and withholding information.
DISCUSSION
The ALJ's Factual Findings
The City excepts to the following factual findings of the ALJ:
1. 	"On March 24, 2010, [Shirley] Stinnett emailed Henderson's resume to
[Kenneth] Akins, specified that Henderson was available April 27, 28, and 29, 2010, and
inquired whether those dates were acceptable with DCEA. Akins responded that Henderson
Neither party has excepted to this determination. Therefore, the ALJ's determination
on this issue is finai. 	(PERB Reg. 32300, subd. (c) ["An exception not specifically urged shall
be waived."]. PERB regs. are codified at Cal. Code Regs., tit. 8, sec. 31001, et seq.)
4

was acceptable, but the dates were not acceptable as he couldn't put the case together that
quickly and it was too close to his International Brotherhood of Electrical Workers (IBEW)
interest arbitration against the City of Vallejo."
2. 	"DCEA was also timely and cooperative in providing a list of fact-finding
arbitrators as well as the contact information of such arbitrators."
3. 	"Akins additionally encouraged [Melissa] Chaney that they select an arbitrator
as soon as possible."
In support of these exceptions, the City argues that the record indicates that DCEA' s
negotiator, Kenneth Akins, "conceded" that he did not know when he provided the list of
arbitrators to the City, other than that it was prior to March 18, 2010, and that the City had not
received such a list prior to March 17, 2010, when it requested names from SMCS. The City
further argues that DCEA was dilatory in failing to propose additional available dates in a
timely manner and that its initial encouragement to select an arbitrator as soon as possible was
merely "lip service." We find the ALJ's findings to be amply supported by record. We note
that the City requested contact information about DCEA' s list of arbitrators on March 18,
2010, thereby indicating that it had received DCEA's list by that date. In addition, the record
establishes that the parties had differing views on how the selection of arbitrators should
proceed, with DCEA preferring to contact arbitrators first before selecting dates. Finally, even
if DCEA had engaged in some delay, it would not excuse the City's unilateral conduct in
requesting arbitrators from SMCS and contacting arbitrators without notifying DCEA and
cancelling the fact-finding process altogether after the parties had reached an agreement on
both the arbitrator and two dates of hearing.
5

Unilateral Cancellation of Fact-Finding and Implementation of LBFO
The City excepts to the ALJ' s findings that, once the City and DCEA agreed to dates
for fact-finding, the City could not then cancel the hearing and that it had other alternatives
available to it rather than engage in self-help. The City asserts that the totality of the
circumstances establishes that it acted in good faith in attempting to implement the
impasse resolution process, while DCEA failed to exercise the same level of diligence, citing
City & County of San Francisco (2007) PERB Decision No. 1890-M (San Francisco) and
Kings In-Home Supportive Services Public Authority (2009) PERB Decision No. 2009-M
(Kings In-Home Supportive Services).
We find neither of these decisions support the City's position in this case. In
San Francisco, PERB held that the City and County of San Francisco did not engage in surface
bargaining when the parties engaged in substantive discussions, exchanged proposals, and
noted that the city "attempted to follow the impasse resolution procedures" set forth in its local
rules. The case before us is not about the City's conduct during bargaining, but about its
conduct in unilaterally cancelling the impasse resolution procedures and implementing its
LBFO. Under these circumstances, we do not find that the City's conduct was a good faith
attempt to follow the impasse resolution procedures' set forth in the EERR.
In Kings In-Home Supportive Services, the Board found that an unfair practice charge
established a prima facie case of surface bargaining sufficient to warrant issuance of a
complaint. The Board further held, however, that the facts alleged in the charge were
insufficient to establish a prima facie failure to participate in good faith 	the scheduling of an
impasse meeting, where the labor organization failed to respond to the employer's proposed
dates other than by proposing to meet on a public holiday. In the case before us, the record
evidence established that DCEA responded to the communications it received regarding the
6

scheduling
of
fact-finding. 	More importantly, the parties actually agreed to hearing dates
which the City later unilaterally cancelled. Kings In-Home Supportive Services has no
application to these facts.
The City also appears to argue that, because MMBA section 3505 requires it to meet
and confer "prior to adoption
of
the agency's final budget for the ensuing year" (underlining
omitted), it was unreasonable to require it to move forward with fact-finding after the June 30,
2010 deadline for the City to adopt a budget "regardless
of
whether DCEA would participate
for the two days available."5 Nothing in the record before us indicates that DCEA would not
have participated in the two days it agreed to, even though it had expressed its belief that
additional days and more formal procedures were necessary. As noted by the ALJ, the City
had the option
of
either submitting to the arbitrator's authority as to how the fact-finding was
to be conducted or insisting that the hearing be conducted in an informal manner in a two-day
5 MMBA section 3505 provides, in relevant part:
'Meet and confer in good faith' means that a public agency, or such
representatives as it may designate, and representatives
of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request by
either party and continue for a reasonable period
of
time in order to
exchange freely information, opinions, and proposals, and to
endeavor to reach agreement on matters within the scope of
representation prior to the adoption by the public agency of its final
budget for the ensuing year. The process should include adequate
time for the resolution of impasses where specific procedures for
such resolution are contained in local rule, regulation, or ordinance,
or when such procedures are utilized by mutual consent.
7

fact-finding. 6 At that point, if DCEA did not appear or participate, the City would arguably
have exhausted the impasse resolution procedures. By cancelling the fact-finding altogether,
however, the City failed to meet its obligation to participate in good faith in the impasse
resolution procedures.
ORDER
Based on the foregoing and the entire record in the case, it is found that the City of
Davis (City) violated the Meyers-Milias-Brown Act (MMBA), Government Code
sections 3503, 3505, 3506, and 3509(b) and Public Employment Relations Board (PERB or
Board) Regulation 32603(a), (b), (c), and (g) (Cal. Code Regs., tit. 8, sec. 31001 et seq.), by
implementing its last, best and final offer upon the Davis City Employees Association (DCEA)
without exhausting fact-finding as required by the local rules. All other allegations are hereby
DISMISSED.
Pursuant to section 3509, subdivision (b) of the Government Code, it is hereby
ORDERED that the City, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to proceed with the fact-finding process in its local
rules.
2. 	Denying DCEA its right to represent bargaining unit members in their
employment relations with the City.
3. 	Interfering with the right of bargaining unit members to be represented
by their chosen representative.
We express no opinion on whether such insistence would have been lawful under all
the circumstances. As noted by the ALJ, such an action could be subject to challenge under
the EERR, but at least DCEA would have had the opportunity to participate in some manner of
fact-finding.
8

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind City of Davis City Council Resolution I 0-070, dated
May 25, 20 IO and restore terms and conditions of employment prior to the passing of the
May 25, 2010 resolution.
2. 	Unless otherwise agreed to by the City and DCEA, contact DCEA to
schedule a fact-finding and complete the fact-finding process in compliance with the City's
local rules, allowing for adequate time to complete the fact-finding process.
3. 	Make all affected employees whole for any loss of wages or benefits due
to the City's violation of the MMBA, including interest at 7 percent per annum.
4. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the City are customarily posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the City, indicating that it will comply with the terms of this Order. 	Such
posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered with
any other material.
5. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the PERB, or the General Counsel's designee. The City
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on DCEA.
Chair Martinez and Member Huguenin joined in this Decision.
9

---------
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. SA-CE-672-M, Davis City Employees
Association
v.
City
of
Davis, in which all parties had the right to participate, it has been found
that the City
of
Davis (City) violated the Meyers-Milias-Brown Act (MMBA), Government
Code sections 3503, 3505, 3506, and 3509(b), and Public Employment Relations Board
Regulation 32603(a), (b), (c), and (g) (Cal. Code Regs., tit. 8, sec. 31001 et seq.), by
implementing its last, best and final offer (LBFO) upon the Davis City Employees Association
(DCEA) without exhausting fact-finding as required by the local rules.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Failing and refusing to proceed with the fact-finding process in its local
rules.
2. 	Denying DCEA its right to represent bargaining unit members in their
employment relations with the City.
3. 	Interfering with the right
of
bargaining unit members to be represented
by their chosen representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Rescind City
of
Davis City Council Resolution 10-070, dated
May 25, 2010 and restore terms and conditions
of
employment prior to the passing
of
the
May 25, 2010 resolution.
2. 	Unless otherwise agreed to by the City and DCEA, contact DCEA to
schedule a fact-finding and complete the fact-finding process in compliance with the City's
local rules, allowing for adequate time to complete the fact-finding process.
3. 	Make all affected employees whole for any loss
of
wages or benefits due
to the City's violation
of
the MMBA, including interest at 7 percent per annum.
Dated: 	CITY OF DA VIS
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY (30)
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER MATERIAL.

.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
DA
VIS CITY EMPLOYEES ASSOCIATION,
Charging Party,
V.
CITY OF DA VIS,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-672-M
PROPOSED DECISION
(October 31, 2011)
Appearances: 	Davis	Beeson, Tayer & Bodine, by John Provost, Attorney, for the 	City
Employees Association; Best, Best & Krieger, LLP, by Stacey N. Sheston, Attorney, for the
City
of
Davis.
Before Shawn P. Cloughesy,
Chief
Administrative Law Judge.
PROCEDURAL HISTORY
final	alleges 	last, best,	This case 	a public employer's implementation
of
it 	and 	offer
(LBFO) without exhausting fact-finding as required by the local rules. The employer denies
violating its local rules, PERB Regulations 1 or the Meyers-Milias-Brown Act2 (MMBA).
an	On 	2010, 	filed	June 2, 	the Davis City Employees Association (DCEA) 	unfair
practice charge (charge) against the City
of
Davis (City). On December 24, 2010, DCEA filed
20, 2011, the Office
of
the General Counsel
of
the Publican amended charge. On January
Employment Relations Board (PERB) filed a Notice
of
Partial Withdrawal
of
the allegations
arbitrator,that the City failed to participate in impasse procedures by unilaterally selecting an
scheduling dates, and setting 	rules for fact-finding. 	On January 20, 2011, the PERB Office	the
1 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2 Unless otherwise indicated, all statutory references are to the Government Code.
MMBA is codified at section 3500 et seq.

CityCounsel 	that 	sections	alleging 	the
of
the General 	issued a complaint 	violated MMBA
(b), (c), and (g) by3503, 3505, 3506, and 3509(b) and PERB Regulation 32603(a),
implementing terms
of
the LBFO without exhausting the impasse procedures set forth in the
local employer-employee relations resolution (EERR).
denying	February 	answer
	of
theOn 	9, 2011, the City filed its 	any violation 	EERR,
necessity and that
DCEA
	defenses
of
businessPERB Regulations, or the MMBA and asserted
was non-responsive and dilatory in its obligation to proceed toward fact-finding.
2
and 	closehearing was held on August 9 	10, 2011. At the
	of
DCEA'sFormal
include an allegationcase-in-chief on August 10, 2011, it moved to amend the complaint to
that on May 25, 2010, when the City implemented its terms and conditions
of
employment, it
regarding the furloughunilaterally changed the terms set forth in the December 4, 2009 LBFO
1,
2010 instead
of
June 30, 2010, and	taken	plan so that the furloughs were to be 	by November
object to theviolated MMBA sections 3505 and 3509(b). Respondent did nottherefore
amendment as it was prepared to respond to it.
were received, 	the portion
of
the transcripts
of
the proceeding 	DCEA noticed thatWhen
meeting played at thethe video-tape recording
of
the June
9,
2009 Davis City Council
ChiefAugust 9, 2011 hearing was not transcribed in the August
9,
2011 transcript. The
(CD) of the audio recording
of
thethereby 	compact discAdministrative Law Judge 	admitted a
hearing as part of the evidentiary hearing so that City Councilmember Sue Greenwald's
or Greenwald) comments were preserved.3 The matter was(Councilmember Greenwald
post-hearing 	2011.proposed decision after receiving 	briefs on September 23,submitted for
to	A copy of the CD was also provided 	the parties.

FINDINGS OF
FACT
Jurisdiction
and
	The City is a public agency under
MMBA
section
350l(c)
	PERB
Regulation 32016(a). Under PERB Regulation 32016(b), DCEA is the exclusive
employee
organization
of
an appropriate unit
of
employees within the City.
Background
(Navazio)	Bill Emlen (Emlen) is the City Manager and Paul Navazio 	is the
Assistant
Director. Melissa Chaney (Chaney) is the City's Human Resource
City Manager and Finance
Director and Employee Relations Officer. Dave
Owen
(Owen) is the DCEA President
and
Kenneth Akins (Akins) provides labor representation services to the DCEA.
EERR
Impasse Procedures
The City's EERR provides in pertinent part:
ARTICLE III - DEFINITIONS
"Impasse" 	a
	9. 	means a deadlock in discussions between
recognized employee organization and the Employee Relations
Officer over any matters concerning which they are required to
meet and confer in good faith, or over the scope
of
such subject
matter.
ARTICLE
XVII-IMPASSE
PROCEDURES
1.
Initiation
of
Impasse Procedures - Impasse procedures may be
invoked only after the possibility
of
settlement by direct
discussion has been exhausted. Any party may initiate the
impasse procedures by filing with the other party or parties a
written request for an impasse meeting, together with a statement
of
its position on all disputed issues. An impasse meeting shall
then be scheduled by the Employee Relations Officer forthwith
after the date
of
filing
of
the written request for such a meeting,
with written notice to all parties affected. 	.
..
2. Impasse Procedures - Impasse procedures are as follows:
3

(a)
If
the parties
so
agree, the dispute shall be submitted
directly to the City Council for determination.
(b)
If
they do not
so
agree within a reasonable period
of
time,
the dispute shall be submitted to mediation. All mediation
proceedings shall be private. The mediator shall make
no
public recommendation, nor take any public position at any
time concerning the issues.	
If
the parties are unable to agree
on a mediator after a reasonable period
of
time, they shall
select the mediator from a list
of
three (3) names to be
provided by the State [Mediation and] Conciliation Service,
or
if
that body for any reason shall fail to provide such a list,
by the American Arbitration Association. The recognized
employee organization or organizations shall first strike one
name, the Employee Relations Officer shall then strike one
name, and the name remaining shall be the mediator.
(
c)
If
the parties have failed to resolve all their disputes
through mediation within fifteen (15) days after the mediator
commenced meeting with the parties, the parties may agree to
submit the unresolved issues on which they have not
expressly reached unconditional final agreement directly to
the City Council. In that event the City Council shall finally
determine the issues after conducting a public hearing thereon
and after such further investigation
of
the relevant facts as it
may deem appropriate.
(d)
If
the parties fail to agree to submit the dispute directly to
the City Council, the said unresolved issues shall be
submitted to fact-finding.
The parties may agree on the appointment
of
one or more
fact-finders.	
If
they fail to so agree, a fact-finding panel
of
three (3) shall be appointed in the following manner: 	One
member
of
the panel shall be appointed by the Employee
Relations Officer, one member shall be appointed by the
recognized employee organization, and those two shall name
a third who shall be the chairman. If they are unable to agree
upon a third, they shall select the third member from a list of
five names to be provided by the American Arbitration
Association, the one to serve to be determined by the alternate
striking
of
names with the party who is to strike the first name
to be determined by chance method.
The following constitute the jurisdictional and procedural
requirements for fact-finding;
4

(1) Fact-finders shall not have served as mediator in the
same impasse under subparagraph
(b
), and shall not be
employees or officers
of
the City or members
of
one
of
the City's employee organizations.
(2) Fact-finding is authorized hereunder in connection
with all unresolved issues; i.e., issues on which they have
not expressly reached unconditional final agreement, that
are within the scope
of
representation.
(3) The fact-finder(s) shall,
to
the extent, they are
applicable, determine and apply the following standards to
the unresolved issues in making recommendations:
(i) City job classifications shall be compared to
comparable job classifications in private employment
in the Davis labor market, and in public employment
in the jurisdictions listed in
...
(ii) In determining job comparability, the following
factors will be considered: The nature and
complexity
of
the duties involved; the degree
of
supervision received and exercised; the educational,
experience and physical qualifications, and the
special skills required; the physical working
conditions; and the hazards inherent in the job.
(iii) Comparisons shall be in terms
of
total
compensation and benefits
of
employment, and, to the
extent feasible, shall be measured in monetary terms.
(iv) The comparison data as hereinabove provided
for shall, to the extent feasible, be adjusted as
appropriate for the benefit of job stability and
continuity
of
employment; difficulty
of
recruiting
qualified applicants; and equitable employment
benefit relationships between job classifications in
City employment.
(v) The financial resources and the expenditures of
City government shall be considered.
( 4) The fact-finder(s) shall make written findings 	fact
and recommendations for the resolution of the unresolved
issues, which shall be presented in terms of the standards
in (3) above. The fact-finder or chairman of the fact
finding panel shall serve such findings and
5

recommendations on the Employee Relations Officer and
the designated representative
of
the recognized employee
organization.
	If
these parties have not resolved the
impasse within ten (10) days after service
of
the findings
and recommendations upon them, and in
no
event later
than ten (10) days prior to the final date set by law for
fixing
of
the tax rate, the fact-finder or the chairman
of
the
fact-finding panel shall make them public by submitting
them to the City Clerk for consideration by the City
Council in connection with the Council's legislative
determination
of
the issues.
Bargaining over a Successor MOU
actions	Approaching the 2009/2010 fiscal year, the City desired to take 	to provide
short-term budgetary savings to cover a projected shortfall. Additionally, the City was
interested in instituting long-term structural changes to manage its overall personnel costs.
The City wanted to bargain these short and long-term changes with all
of
its bargaining units.
Specifically, the City sought to reduce its personnel costs by five percent or approximately
$1.2 million in savings
to
its general fund and
$3
million in savings from all City funds, which
savings. 	Theincluded financial concessions from DCEA totaling approximately $500,000 in
longer the bargaining process continued past July
1,
2009 without anCity understood that the
agreement, it became more difficult to realize these savings during the 2009/2010 fiscal year.
June	The MOU between DCEA and the City expired on 	30, 2009. The negotiations for
April 22, 2009. Emlen, Navazio, and Chaney represented the City	a successor MOU began
with Navazio as its chief spokesperson. Akins, Owen, and other DCEA officers were present
on behalf of DCEA with Akins as its chief spokesperson.
study:	Article VI of the MOU provided, in part, for a compensation
CITY agrees to initiate a total compensation study to be
completed by March 31, 2009 for the purpose of discussing
market adjustments for total compensation for benchmark
6

below.	positions with the comparison agencies as agreed
to
CITY and ASSOCIATION agree to meet and confer on the
components used for total compensation.
the	One
of
Chaney's subordinates was assigned to gather 	data for the total
her positioncompensation study. Unfortunately, she left City employment in March 2009 as
the information inwas to be cut in July 2009. Chaney then took the data and compiled
May/June 2009. The information was provided
to
DCEA, but was never used, and was
discounted by the City.
City	During the first three months
of
bargaining, the 	forwarded proposals which sought
concessions from DCEA including, but not limited to, furloughs, a five percent across the
board reduction in pay, and a reduction/limitation to the cafeteria benefit cash-out provision.
which	On June
9,
2009, the City Council held a meeting 	included a budget workshop to
During that workshopdiscuss the plans for the upcoming 2009/2010 proposed budget.
Councilmember Greenwald commented on the City's labor costs.4
excessiveSpecifically, 	isolated 	were	Greenwald 	specific employee benefits which
when compared to other public sector entities. 	She believed the City could realize significant
budgetary savings from concessions in these areas and that the City could exercise control over
the negotiations process by what they "offered." Greenwald pointed out that the City was not
have mediation which could take up to one to one andsubject to interest arbitration, but did
one-half years and, ifthere was no agreement, the City could adopt its LBFO. 	Greenwald
not deter the City as it hadcommented that going through this extended process should
reserves and controlled the number of employees it employed.
Council'sDCEA 	Greenwald's 	City	argued that 	comments demonstrated the 	"state
of
mind" that it was aware that its impasse procedures could take an extended period
of
time to
theexhaust. 	However, Greenwald's comments do not show such awareness. She believed
mediation process took an extended period of time, but the EERR specifically states to the
resolve the matter within
15
days, it shall proceedcontrary, in that if the mediator does not
either to the City Council or fact-finding. 	Greenwald's comments were primarily focused on
aware of theareas of savings that could be achieved and not whether she was specifically
details of the impasse procedures. Her comments are therefore deemed irrelevant and
inadmissible hearsay.
7

discussed	During a June 2009 bargaining session, City representatives 	the process
of
impasse and implementing its proposals and that the City Council was aware
of
proceeding to
this process. Akins responded that DCEA could take actions to extend or postpone the
process, such as requesting documents.
July	The parties met
11
times between April 22 and the end
of
	2009. The City Council
no formal bargaining sessions	took its traditional break from August to September 2009 and
30, 2009. 	On
were held. The parties then met five times between October 27 and November
November 16, 2009, Emlen sent DCEA a letter stating that it appeared the City and DCEA
were approaching impasse.
Impasse and the City's LBFO
the	On December 4, 2009, Emlen sent Akins a letter stating that 	negotiations had
reviewreached impasse and the City requested to meet on December 8, 2009, so they could
each other's positions in an effort to reach an agreement, and
if
no agreement could be
reached, to discuss further impasse procedures. The City included with the letter its LBFO
which provided the following proposals for a one-year term agreement:
Furloughs
12 furlough days [in fiscal year] 2009/201
O;
all furlough days
to be taken before June 30, 2010
Cafeteria Health Benefits
City to contribute to cafeteria health plan at calendar year
2010 rate for the Kaiser plan available through CalPERS for
Employee +2 plan.
Cafeteria Cash-out Provision
Current Employees: Cap at CURRENT (2009) Cafeteria
Benefit.
New Employees: Hired after January 1, 2010 - Cap cafeteria
cash-out at $500/month.
8

CalPERS Retirement
[]
to	RETAIN language from prior MOU re: 	employees agree
pay up to 3% increase in CalPERS employer contribution
rate. (Employees pick up .453% FY 2009/2010)
Overtime
in	City to implement modifications to overtime provisions
current MOU to be more consistent with a 40 [hour] work
week. Paid time
off
(sick, vacation, comp time) will not be
considered time worked.
Tool Allowance
from	Increase tool allowance for Equipment Mechanic series
$325.00 per year to $500.00 per year.
Unit Determination
DCEA	Upon Council approval move Lab Analyst Series to
from [another bargaining unit].
CalPERS Retirement
Set election to amend CalPERS Contract effective
January
1,
2011 to reflect Highest Three-Year Average
PERSable compensation as [a] basis for calculating retirement
benefit (instead
of
highest one year). Election to be held by
June 30, 2009.
Retiree Medical Benefit
Implement vesting period for CURRENT employees with
CalPERS vesting at [the] State contribution level.
the	On December
8,
2009, DCEA and the City met to discuss 	impasse between them.
term agreement. 	OnDCEA decided to have its membership vote on the LBFO with a one-year
and reported the vote to the	December 17, 2009, DCEA unanimously rejected the City's LBFO
City. Chaney then directed her subordinate, Shirley Stinnett (Stinnett), to contact the State
on the firstMedication and Conciliation Service (SMCS) to schedule a mediation session
available 	Stinnett did so and DCEA was available on that day.	date.
the	On February 2, 2010, the City and DCEA met with 	State mediator. After a
concession proposal by DCEA, which was rejected by the City, the mediation soon ended. The
9

the	City requested that the DCEA membership vote on 	LBFO with a three-year term
agreement. DCEA agreed to
do
so.
the	On February 12, 2010, the DCEA membership rejected 	three-year term agreement
of
the LBFO and Akins notified Chaney
of
the results the next day in a letter, which stated in
part:
This 	and 	party
	is 	remains a bilateral process[,] but[] when one
announces early in the process that they will negotiate to impasse
so that they can implement, the integrity
of
that party is called
[into] question and that party has also clearly demonstrated that
they never intended to bargain in good faith. 	I hope that the
[C]ity takes the opportunity to resolve this in a harmonious
manner as opposed to going down a path with twists and
unknowns that may have everlasting repercussions.
(Underlining added for emphasis.)
Scheduling for Fact-finding
DCEA	On February 16, 2010, Chaney suggested that both 	and the City bypass the
fact-finding process and submit the matter to the City Council for determination. DCEA
elected fact-finding.
orderOn 	2010, 	in	February 18, 	Akins contacted labor attorney Alan Davis 	to discuss
Stinnett who askedwhether he would represent DCEA at the fact-finding. 	Akins then spoke to
acceptable to DCEA. Akinshim to provide her with the names
of
five arbitrators who were
promptly provided Stinnett with the names John Kagel (Kagel), Charles Askin (Askin),
2010, AkinsCatherine Harris, Matthew Goldberg and Bonnie Bogue. On February 23,
emailed Chaney suggesting 	they should agree upon an arbitrator as soon as possible.	that
wanted	On February 28, 2010, Akins wrote Chaney that DCEA 	to proceed to fact
finding. 	Akins urged Chaney to contact him at her earliest convenience so they could select an
arbitrator. The City had never had a labor dispute go to arbitration before.
10

about	During the week
of
March 9, 2009, Owen spoke with Akins 	the fact-finding
from theprocess. 	On March 26, 2010, Owen spoke with Tim Reilly (Reilly), a financial expert
Bachecki, Crom & Co. (Bachecki & Crom) in order that he may evaluate the financial	firm
of
health
of
the City, which could be later used at the fact-finding. 	However, because
of
the
retainer fee for Bachecki & Crom	quoted fee, DCEA was not able to arrive at an acceptable
until May 3, 2010.5
aOn 	to 	get	March 17, 2010, Chaney instructed Stinnett 	contact SMCS to 	list
of
fact-finding. 	That same day, Stinnett requested a list for "expedited	arbitrators for the
availability" arbitrators from SMCS. 	Stinnett wrote that "both sides" had agreed to meet with
Stinnett was mailed a list
of
arbitrators that day, which included:	an arbitrator from the list.
Joe Henderson (Henderson), Morris Davis (Arbitrator Davis), Harold Kennedy, Philip
Akins as anTamoush, Daniel Altemus, Judy Gust and James Margolin. SMCS's letter listed
addressee, but Akins stated he never received the list.
list	Chaney instructed Stinnett to obtain dates from Akins'
	of
arbitrators first and then
determine whether the City had any objections with these arbitrators. 	Stinnett was directed to
offer Akins the first available dates
of
the arbitrators acceptable to the City.
him	On March 18, 2010, Stinnett emailed Akins to provide 	with the contact information
of
the five arbitrators he provided. Akins did so by the next day.
Askin	On March 19, 2010, Stinnett sent emails to Arbitrators 	and Kagel inquiring as to
their availability. Askin was not available in May, had a few dates available in June, but was
5 Although DCEA had finally agreed upon a fee with Bachecki & Crom, they never had
its LBFO onthe agreement approved by the DCEA membership as the City implemented
begin preparing for the fact-finding until	May 25, 2010. Akins stated that Reilly would not
Reilly knew the fact-finding date(s). 	Reilly never sent a request for financial records to the
City.
11

Akins	available in July and August. 	Kagel asked Stinnett and 	how many days
of
fact-finding
Akins
added
were needed. 	Stinnett estimated two days and Akins estimated four to five days.
of
days needed and
DCEA
that
DCEA
had not yet spoken with legal counsel as to the amount
retained Bachecki & Crom as experts to conduct an examination
of
the financial health
of
the
City.
until	Because the arbitrators on
Akins'
list were not available 	later, Chaney
wanted
to determine
if
they had
Stinnett to inquire as to the availability
of
the SMCS list
of
arbitrators
an
earlier availability.
Davis,
	On
March 24, 2010, Stinnett emailed Arbitrator 	as to his availability for a three
not have any availabilityday fact-finding over the next 30 to 45 days. 	Arbitrator Davis did
during that time period.
his	On March 24, 2010, Stinnett emailed Henderson as to 	availability for a three-day
availablefact-finding within the next 30 to 45 days. 	Henderson responded that he was
On March 24, 2010,April 27, 28 and 29; May 11, 12 and 13; and May 25, 26 and 27, 2010.
wasStinnett 	Henderson's resume to Akins, specified that Henderson 	available April
emailed
were acceptable with DCEA. Akins
27, 28 and 29, 2010, and inquired whether those dates
responded that Henderson was acceptable, but the dates were not acceptable as he
couldn't
put
of
Electricalthe case together that quickly and it was too close to his InternationalBrotherhood
Workers (IBEW) interest arbitration against the City
of
Vallejo. 	He did not provide any
alternative dates.6
6 Although Akins did not provide any dates, it was uncontradicted that both Akins and
Alan Davis were involved in interest arbitration proceedings representing International
in January andAssociation
of
Firefighters (IAFF) Local 1186 against the City of Vallejo
February 2010 and representing IBEW against the City of Vallejo in May and June 2010.
12

available	On
	1,
	next	April 	2010, Stinnett requested Henderson
to
reserve his 	dates,
May
11,
12
and 13, 2010, without consulting DCEA
as
to its availability, and requested that
of
Henderson forward a contract for her review. 	Henderson responded with a number
proceeding he was to conduct and inquired as to some
of
the detailsquestions as to the type
of 
had
	of
the dispute. On April 7, 2010, Henderson confirmed that he 	reserved May 11,
12
and
13, 2010 for the fact-finding.
the	On April
9,
2010, Stinnett emailed Henderson explaining 	type
of
proceeding and
dispute he was
to
preside over. 	Stinnett admitted:
The City has not had to exercise this section
of
the Resolution
within the memory
of
anyone still here, so we'll all have to
muddle through it together.
Henderson	On April 12, 2010, Chaney wrote Akins that the City retained 	to conduct the
that further	fact-finding and he was available on May 11,
12
and 13, 2010. Chaney stated
with Henderson on these dates.	dates could be added,
if
necessary, and they could discuss this
Attached to the letter was an "Agreement for Fact-Finders Services" which included the
following provisions:
2-Fact-Finding
The Fact-Finding shall be conducted in accordance with
Resolution 1303, Article XVII, (d) provisions.
The Disputing Parties agree to submit a list of "unresolved
issues" on the opening
of
first day
of
the Fact-Finding. The
parties agree that the Fact-Finding shall be held on May 11, 12 &
13, 2010 and continuing on mutually agreed dates until the
parties have submitted their positions, data and arguments to the
Fact-Finder. If the Disputing Parties cannot agree upon
continuation dates HENDERSON shall have the authority to set
meeting or Hearing dates with 3 working days notice.
13

4-Terms
of
Joe H. Henderson Services:
these	A. Joe
H.
Henderson['s] authority to conduct 	Fact
Finding proceeding[s] shall be exclusive and complete.
Fact-Finders	B. Standards [o]f Fact[-]Finding Report (a]nd
Decisions. In deciding any issue, Henderson shall apply the
same standards
of
decision that a judge would apply
if
the
same case were to have arisen in a court
of
competent
jurisdiction.
(Underlining added for emphasis.)
her	Akins left a voice-mail with Chaney informing 	that the proposed dates were
not
acceptable as they conflicted with the actual days he was involved in an interest arbitration
with the City
of
Vallejo.
He
did not mention any other dates that he was available.
for
On 	responded 	HendersonApril
20,2010,
Akins 	to Chaney's letter scheduling
to Henderson asfact-finding dates and that the dates were not acceptable. Akins did not object
the fact-finding without input
an arbitrator, but objected to the City unilaterally scheduling
to check the schedules
of
its attorney and expert.from DCEA or giving them the opportunity
soAkins asked Chaney to contact him at her earliest convenience 	that they could discuss
scheduling in an orderly manner.
the 	to22, 	that	April 	2010, Stinnett notified Henderson 	City would not be able 	hold
On
13, 2011, and asked
ifhe
was available in June.7
the fact-finding on May 11, 12 and
responded that he was available June 9, 10 and 11; June 21, 22, 23 and 24; July 19Henderson
and 20; and July 26 and 27, 2010.
explaining	On April 23, 2010, Chaney responded to Akins 	that she scheduled the
impliedMay
11
through 13, 2010 dates as it gave ample time for DCEA to prepare. Chaney
that DCEA was stalling. Chaney asked Akins to provide all dates which DCEA was available
7 The City paid Henderson's cancellation fee.
14

40	to conduct the fact-finding within the next 30 to 	days. After receiving DCEA's dates,
provide the datesChaney would contact Henderson to schedule the fact-finding. 	Akins did not
Chaney for not
as he wanted to know the dates the arbitrator was available first. Akins blamed
contacting him so they could jointly call the arbitrator with all the schedules
of
the
representatives/witnesses needed and agreeing upon fact-finding dates.
attorney	On April 23, 2010, Owen and Akins had lunch with 	Alan Davis. Owen
decided to retain Alan Davis to represent DCEA for the fact-finding. 	The DCEA Executive
Board ratified the hiring
of
Alan Davis within a few days
of
this meeting.
wasOn 	response 	the	April 28, 2010, Akins sent a 	to Chaney protesting how 	City
the selection and scheduling
of
the fact-finding since Chaney	proceeding unilaterally on
requested a SMCS list
of
arbitrators, picked one
of
the arbitrators off the list, and then
to get available dates from the arbitrator. 	While Akins again stated that Henderson	proceeded
was an acceptable arbitrator, he suggested that the City and DCEA should jointly contact the
arbitrator with their calendars ready and select dates which were mutually available. 	Akins
notified Chaney that DCEA retained Alan Davis to represent them and that all future contacts
should be made through him.
Chaney stated that the City had never scheduled an arbitration before and was
following the same procedure it followed when the City wanted to schedule a hearing with
the dates when the DPB metAkins before the Davis Personnel Board (DPB). 	Stinnett knew
the soonest dates they had available and Akins wouldand would call Akins and offer him
cooperate by informing her as to his availability or lack of availability until they finally agreed
upon a hearing date.
of
	On April 29, 2010, Stacey Sheston (Sheston), Esq. 	McDonough, Holland & Allen
wrote Alan Davis and asked DCEA for available dates within the next 30 to 45 days.
15

contactOn 	Chaney 	jointlyMay 3, 2010, Alan Davis wrote 	asking that they 	Henderson
that Chaney andregarding dates which they were mutually available. Alan Davis asked
Sheston be available to discuss the number
of
issues which needed to be addressed
so
they
of
fact-finding needed. 	On May 4, 2010, Alan Davis wrotecould discuss the number
of
days
that she call him so that they can discuss the number
of
issues involved, the
Sheston, asking
reporter.length 	testimony, location
of
the fact-finding, and arrangements for a court
	of 
Davis	On May 10, 2010, Sheston wrote Alan 	stating in part:
The 	pretty 	thisimpasse rules are 	sparse regarding procedures for
non-binding "fact-finding" arbitration. I don't foresee this being
a formal, witness O&A type
of
arbitration, but rather an informal
arbitrator. Thepresentation made directly by the parties to the
City's presentation should take about a half a day. The "number
of
issues," as you described it, is pretty
small-here
are the City's
financial situation and fiscal policy directions from the City
and here are the parties' respective bargaining positions	Council,
as
of
impasse. 	Ken Akin[
s]
told City staff he estimated two days
would be needed. I think one day would do it, but.am wiiling to
schedule two. The days need not be consecutive. My
of
a couple weeks ago, the arbitrator had	understanding is that, as
July
19
and 20 available. These are all	June 22, 23, 24 and
agreeable for me as well. . . . We do not anticipate using a court
reporter.
(Underlining added for emphasis.)
Sherr	On May 11, 2010, Alan Davis' assistant, Grania 	(Sherr), emailed Sheston in
another arbitrationresponse to the May 10, 2010 letter. 	She relayed that Alan Davis was in
unavailable for the June dates and she hadhearing for the next 10 days, that Alan Davis was
availability.put a "hold" on the July dates until she confirmed Alan Davis'
stated,On 	2010, 	Akins	May 13, 	Akins responded to Sheston. 	that both Alan Davis and
City of Vallejo onhe were previously scheduled for an interest arbitration case regarding the
17, 18, 28, 29, and 30, 2010. 	AkinsMay 10, 11, 12, 13, 14, 17, 18, and 19, and June
25contended that a formal hearing process 	consistent with his experience based upon the	was
16

to 30 fact-findings and interest arbitrations that he was involved in. 	Akins concluded the
letter by stating:
8
The June dates suggested in your correspondence
don't
work with
us, as there are conflicts with respect to other issues. However,
the July dates do work. Nevertheless, as mentioned above, we
believe that those dates are insufficient, and that we need to
develop additional dates with respect to the arbitrator. This
should be done jointly. You also indicated that you did not
anticipate using a court reporter. Again, we believe that [al court
reporter is necessary, especially in the event
of
written post
hearing briefs. Additionally, we believe a certified copy
of
testimony is an important and valuable component
of
this
process.
If you disagree with our position, with respect to the hearing
process, I suggest that you contact Mr. Davis after the 19
th
of
May, so that you and he may have a joint conversation with the
arbitrator in order to resolve any [prehearing] disputes or
differences.
(Underlining added for emphasis.)
On May 14, 2010, Sheston responded by stating:
We are nowhere close to agreement even to concept regarding the
City's fact-finding arbitration process. None
of
the formalities
you described, while they may be typical in other fact-finding
contexts under other labor laws or contracts, are required under
the Meyers-Milias-Brown Act or the City
of
Davis process. It is
apparent from the way events have unfolded that
DCEA's
entire
purpose has been to delay and avoid any changes to their current
contract, now by attempting to make the impasse resolution
process unnecessarily complicated, expensive, and time
consuming. It cannot continue.
The City's position is that DCEA has, by its conduct, failed to
participate in good faith toward impasse resolution and
17
Akins has been involved in numerous interest arbitration and fact-finding hearings
over the last 17 years. The shortest hearing was three days and many went over 20 days. 	His
experience with the fact-finding process was similar to the process of a formal administrative
hearing, which involved examination of witnesses, a court reporter, and post-hearing briefs.
When scheduling an arbitrator for these hearings, it usually took at least two to three months to
get hearing dates and many times much longer.

staffeffectively rejected fact-finding arbitration. For that reason,
intends to
go
to the alternative step and promptly submit the
to the City Council for final resolution. 	Staff is targeting	matter
the Council meeting
of
May 25, at which we expect the City
Council will consider imposition
of
the City's last, best and final
offer.
(Underlining added for emphasis.)
City'sOn 	to 	thatMay 21, 2010, Alan Davis replied 	Sheston's letter by stating 	the
LBFO would violate the City's EERR and the City must exhaust impasse	imposition
of
its
procedures before implementation. 	Alan Davis faulted the City for taking control
of
the fact
requesting a SMCS list
of
arbitrators, selecting anfinding scheduling process by unilaterally
arbitrator from that list, scheduling dates with that arbitrator without consulting DCEA, and
for the fact-finding rather than the parties presenting their respective	setting the procedure
Davisas to the manner of presentation before the arbitrator for decision. Alan 	expressedviews
DCEA's commitment
to
proceeding with the fact-finding pursuant to the City's EERR.
Report,"	Emlen, Navazio, and Chaney prepared a "Staff 	dated May 25, 2010 to the City
Council recommending the City impose its LBFO on DCEA. The Staff Report stated in
pertinent part:
Fiscal Impact
contract	The provisions
of
the City's "last, best, final" 	proposal
would yield budgetary all-funds savings of $507,000 and General
Fund savings
of
$203,000 in the current fiscal year. This
costrepresents a savings
of
4.52% compared to the FY2009/2010
of
the existing DCEA Memorandum
of
Understanding, and a
savings of 3.34% in comparison to the prior year cost for this
contract.
may	Actual savings realized in the current fiscal year 	be reduced,
based upon the effective date
of
implementing the terms of
employment, and the City's ability to recover costs already
incurred. However, the City expects to achieve full savings,
whether entirely in the current fiscal year, or over a period
extending into FY2010/2011.
18

Background and Analysis
trying	Since the mediation in February, City staff has been 	to
schedule a fact-finding arbitration as per the City's
Employer/Employee Relations Ordinance 1303. Despite repeated
open-ended inquiries, as well as proposal
of
specific dates from
the City, DCEA refused until May 13, 2010 to even give the City
any
dates_
[9l There remains major disagreement between the two
sides about what the fact-finding should entail. Given that it is
informal	not binding, the City proposed a streamlined, relatively
process whereby direct presentations could be made to the
over	arbitrator (rather than by hearing-style witness testimony)
the course
of
two days. DCEA recently insisted the process will
take at least four to five days
of
formal arbitration proceedings,
complete with expensive litigation accoutrements like a court
reporter.
to	The City has made three months
of
good faith efforts 	comply
with the final step
of
impasse resolution procedures in the
Employee/Employer Relations Ordinance 1303 without success,
and staff believes the prerequisites to unilateral implementation
set forth in section 3505.4 have been met.
proposed	On May 25, 2010, the City Council convened to consider 	Resolution
No. 10-070: the City's imposition
of
its LBFO on DCEA. According to the official minutes
of
the May 25, 2010 City Council Meeting, City Attorney Harriet Steiner (Steiner) stated:
after	The [C]ity has a set
of
rules on the process to follow
impasse. The [C]ity and DCEA bargaining group have met with
a mediator without success. The next step is to come to City
Council or go to fact[-]finding arbitration; Council may impose a
last, best final offer on [a] unilateral basis
if
it believes that
impose	further process is unavailing. 	Staff recommendation is to
a last, best final offer as rules to apply to DCEA.
	...
9 The Staff Report failed to mention to the City Council that the City and DCEA had
agreed to the fact-finding dates of July 19 and 20, 2011 and that on April 12, 2010, City
representatives had offered DCEA three fact-finding dates and that further fact-finding dates
after discussion with Henderson. Indeed. the proposed agreement with	could be added
Henderson stated the fact-finding would be three days "and continuing on mutually agreed
also gave thedates until the parties have submitted their positions." The proposed agreement
the authority to schedule the dates after the first three days of fact-finding." Thesearbitrator
critical facts were omitted from the Staff Report to the City Council.
19

City Attorney Steiner stated the [C]ity feels strongly that it
conducted good faith negotiations throughout the entire process
and now
is
the time to start implementation
of
the last, best final
offer.
(Underlining added for emphasis.)
the	Akins also addressed the Council that the City had an obligation to follow
	MMBA
and their own local rules by completing fact-finding before imposition
of
its LBFO.
before	The proposed resolution stated that all furlough days were to be taken
June 30, 2010. The City Council modified the proposed resolution that the furlough days
be
taken before November
1,
2010. The City Council unanimously passed and adopted the
modified proposed resolution.
fiscal	The City was not able to realize its projected $500,000 in savings for 	year
2009/2010, but spent funds beyond which it had budgeted. The City has a 15% reserve in its
budget, which was approximately $5.2 million in 2009/2010. The City did not declare a fiscal
emergency during this year.
ISSUES
1) Was the City's May 25, 2010 resolution implementing terms
of
	LBFO without
exhausting fact-finding in violation
of
the MMBA, PERB Regulations and the City's local
rules?
2) Was the May 25, 2010 resolution implementing terms
of
its furlough plan
reasonably contemplated within its December 4, 2009 LBFO?
CONCLUSIONS OF LAW
MMBA section 3505, 3505.4, 3507 and 3509(b) provide in pertinent part:
3505. The governing body of a public agency, or such boards,
commissions, administrative officers or other representatives as
may be properly designated by law or by such governing body,
shall meet and confer in good faith regarding wages, hours, and
20

of
	other terms and conditions
of
employment with representatives
such recognized employee organizations,
as
defined in subdivision
(b)
of
Section 3501, and shall consider fully such presentations as
are made by the employee organization on behalf
of
its members
prior to arriving at a determination
of
policy or course
of
action.
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives
of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period
of
time in
order to exchange freely information, opinions, and proposals, and
to endeavor to reach agreement on matters within the scope
of
representation prior to the adoption by the public agency
of
its
final budget for the ensuing year. The process should include
adequate time for the resolution
of
impasses where specific
procedures for such resolution are contained in local rule,
regulation, or ordinance, or when such procedures are utilized by
mutual consent.
3505.4. Ifafter meeting and conferring in good faith, an impasse
has been reached between the public agency and the recognized
employee organization, and impasse procedures, where
applicable, have been exhausted, a public agency that is not
required to proceed to interest arbitration may implement its last,
best, and final offer, but shall not implement a memorandum
of
understanding. The unilateral implementation
of
a public agency's
last, best, and final offer shall not deprive a recognized employee
organization
of
the right each year to meet and confer on matters
within the scope
of
representation, whether or not those matters
are included in the unilateral implementation, prior to the adoption
by the public agency
of
its annual budget, or as otherwise required
by law.
3507. (a) A public agency may adopt reasonable rules and
regulations after consultation in good faith with representatives
of
a recognized employee organization or organizations for the
administration
of
employer-employee relations under this chapter.
The rules and regulations may include provisions for all of the
following:
(5) Additional procedures for the resolution of disputes involving
wages, hours and other terms and conditions of employment.
of
	3509. (b) A complaint alleging any violation of this chapter or
any rules and regulations adopted by a public agency pursuant to
21

unfair	Section 3507 or 3507.5 shall be processed
as
an 	practice
the board
....
The initial determination
as to whether the	charge by
charge
of
unfair practice is justified and,
if
so, the appropriate
to effectuate the purposes
of
this chapter, shall	remedy necessary
be a matter within the exclusive jurisdiction
of
the board. The
board shall apply and interpret unfair labor practices consistent
with existing judicial interpretations
of
this chapter.
provide:	PERB Regulation 32603(a), (b), (c), and (g)
to
	It shall be an unfair practice for a public agency
	do
any
of
the
following:
(a) Interfere with, intimidate, restrain, coerce or discriminate
against public employees because
of
their exercise
of
rights
local rule	guaranteed by Government Code section 3502 or by any
adopted pursuant to Government Code section 3507.
(b) Deny
to
employee organizations rights guaranteed to them by
Government Code section 3503, 3504.5, 3505.1, 3505.3, 3507.1,
3508(d) or 3508.5 or by any local rule adopted pursuant to
Government Code section 3507.
( 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.
(g) In any other way violate MMBA or any local rule adopted
pursuant
to
Government Code section 3507.
(Underlining added for emphasis.)
Failure or Refusal to Exhaust Fact-Finding
which	The EERR is silent as to the period
of
time in 	the fact-finding must be held and
which the fact-finding is to be conducted.	to the manner
of
presentation (formal or informal) in
the MMBA is that "adequate time" must be provided for the	The only description provided by
resolution of impasses. (MMBA section 3505.4.) The EERR is also silent about the City's
LBFO.	to unilaterally cancel a fact-finding and implement its	ability
22

impasse	DCEA was cooperative with the City in timely attending an 	meeting and
scheduled mediation. Indeed, DCEA attended the first available mediation date scheduled
by
the City. 	DCEA was also timely and cooperative in providing a list
of
fact-finding arbitrators
as well as the contact information
of
such arbitrators. Akins additionally encouraged Chaney
that they select an arbitrator as soon as possible.
first	While Akins thought the parties would agree upon an arbitrator 	and then schedule
the fact-finding date when it was acceptable to all representatives and witnesses, Chaney
Unfortunately, this	sought to find an acceptable arbitrator with the earliest availability.
became more problematic than expeditious as Chaney or Stinnett would offer only the soonest
upon the hearing being
	of
the possible dates to Akins and he would refuse based either
scheduled too quickly as on April 27, 28 and 29, 2010, or that there was an actual conflict as
foron May 11, 12 and 13, 2010, when both Akins and Alan Davis were previously scheduled
interest arbitration proceedings with the City
of
Vallejo on May 10, 11, 12, 13, 14, 17, 18 and
19, and June 17, 18, 28, 29 and 30,2010. While Akins did not provide any alternative dates,
first.	he did so because he wanted to know Henderson's availability
the	Not until May 10, 2010, when Sheston became involved representing 	City, did the
whichCity offer a number
of
dates in both June and July, including July 19 and 20, 2010,
the scheduling
of
a factSheston represented as acceptable to the City. DCEA agreed to
finding on July 19 and 20, 2010.
10
The only real disagreement left was the manner in which
the	While the City contends that DCEA was dilatory in pursuing 	scheduling
of
the
parties agreed to the July 19 and 20, 2010 dates, once the City agreed to	fact-finding before the
the dates, it could not then cancel the hearing after-the-fact for dilatoriness when it had
alternatives available to it (as will be discussed later in the proposed decision). 	Additionally, it
should be noted that before the parties had agreed to July 19 and 20, 2010 dates, the City
offered three fact-finding dates with the option of discussing further dates with Henderson, and
the proposed agreement with the arbitrator provided him with exclusive and complete authority
over conducting the proceeding and scheduling further hearing dates.
23

informalthe 	Henderson: 	anevidence was to be presented to 	in a formal hearing process or
11
While the parties disagreed as to the manner
of
presentation to thehearing process.
arbitrator, the City had available two less severe options than canceling the fact-finding. 	The
matter to the arbitrator as it was within the arbitrator's authority	City could have submitted the
as to how the fact-finding was to be conducted (John Wiley & Sons, Inc.
v.
Livingston, 376
Arbitration Works, 293-294, Alan Miles RubenU.S. 543, 557 (1964); Elkouri & Elkouri, How
ed., (6th ed. 2003)), or the City could have dictated that the hearing be conducted in an
in a two-day fact-finding. 	Regarding this second option,
if
DCEA did notinformal manner
want to appear on July
19
and 20 dates for an informal fact-finding, then the fact-finding
12
procedure would be arguably exhausted by their non-appearance. 	Rather than exercising
either
of
these two options, the City engaged in the harsh "self-help" remedy
of
canceling the
July
19
and 20, 2011 fact-finding dates as DCEA did not "agree" with it as to the manner in
to cancel thewhich the hearing was to be conducted. Nothing in the EERR authorized the City
point. The City therefore denied DCEA's right per the EERR to participatefact-finding at that
resolvein any 	proceedings and the post-fact-finding opportunities to 	theirfact-finding
outstanding negotiation issues with the City.
brief,	Although not addressed in the City's post-hearing 	the City asserted in its answer
especially inthat it had a business necessity for passing its resolution implementing its LBFO,
light of its projected shortfall. (Calexico Unified School District (1983) PERB Decision
11
While DCEA had estimated four to five days of hearing, the dispute about the length
would be conducted in a formal
	of the hearing primarily concerned whether the fact-finding
evidentiary manner or an informal manner.
12 It is understood that if the City exercised this second option, DCEA still could have
had the opportunitychallenged the City as violating its EERR, but at least DCEA would have
to participate in some manner of a fact-finding.
24

beNo. 	defense, 	must357 (Calexico).) To qualify for this 	the City's unilateral action 	taken as
of some sudden change
of
circumstances" and the "emergency" must	the "unavoidable result
be "actual" which "leaves no real alternative to the action taken and allows no time for
withoutmeaningful negotiations." (Id. at pp. 20 and 22.) Such a defense is not often accepted
emergency, as demonstrated in San Francisco Communitya specific and actual showing
of
an
College District (1979) PERB Decision No. 105, when the employer was faced with tax
revenue changes caused by Proposition
13.
	The Board stated:
economic	Even when a District is in fact confronted by an
reversal
of
unknown proportions, it may not take unilateral
but must	actions on matters within the scope
of
representation,
bring its concerns about these matters to the negotiating table.
and	(San Francisco Community College, pp. 10 	11.)
and	In this case, the City did not declare a fiscal emergency 	the City had reserves
rise to the level
of
ansufficient to face its projected shortfall with DCEA. These facts do not
13
actual emergency, especially in light
of
PERB decisions. 	Moreover, as already discussed
available alternatives to the unilateral action at the point the parties	above, the City had readily
rejected.disagreed as to the manner 	presentation to the arbitrator. This defense must be
	of
imposedNo business/operational necessity found: 	employer unilaterally 	a freeze
of
employer wanted to present a balanced budget to its governing	step and salary increases as the
board when the employer had been aware
of
the serious financial condition well before that
Decision No. 357); unilateral reduction in health benefit plan	date (Calexico, supra, PERB
contributions due to serious financial shortfalls which the employer had known previously and
did not show that the budget required it to implement the reduction to balance the shortfall
(Compton Community College District (1989) PERB Decision No. 720); unilaterally replacing
when several other options were available to the	health insurance plan due to its high expense
School District (1994)employer, even if the options were not desirable (Oakland Un(fied
PERB Decision No. 1045, adoption of
AL.T's decision); and unilaterally hiring cardiovascular
perform bargaining unit work of nurses in hospital not shown to be justified by	technicians to
the unanticipated earthquake destruction to the other hospitals because the cardiovascular
subsided (The Regentstechnicians continued to be used after the impact of the earthquake had
of
the University
of
California (1998) PERB Decision No. 1255-H).
25

of
	The City's canceling
of
the fact-finding dates and implementing 	its LBFO on
constituted an unlawful implementation
of
its LBFO before exhausting	May 25, 2010 therefore
impasse procedures in violation
ofMMBA
section 3503, 3505, 3506 and 3509(b), PERB
Regulations 32603(a), (b), (c), and (g), and
EERR
Article XVII.
Changes Reasonably Comprehended within LBFO
2100-M	In County
of
Sonoma (2010) PERB Decision No. 	(Sonoma), the Board
summarized its precedent regarding implementing changes after impasse resolution procedures
have been exhausted when it stated:
completed	Once impasse has been reached and the parties have
statutory impasse resolution procedures, the employer may
thereafter implement changes reasonably contemplated within its
last, best and final offer. (Rowland [Unified School District (1994)
PERB Decision No. 1053]; Modesto City Schools (1983) PERB
Decision No. 291 (Modesto); Charter Oak Unified School District
(1991) PERB Decision No. 873 (Charter Oak).) "The employer
its last offer	need not implement changes absolutely identical with
on a given issue. However, the unilateral adoptions must be
reasonably comprehended within the preimpasse proposals."
(Public Employment Relations Bd.
v.
Modesto City Schools Dist.
136 Cal.App.3d 881, 900 [citations omitted; emphasis in	(1982)
original].) Thus, PERB has stated, "matters reasonably
comprehended within pre-impasse negotiations include neither
proposals better than the last best offer nor proposals less than the
status quo which were not previously discussed at the table."
(Modesto.) PERB will not, however, dissect a package proposal to
"separately compare each provision
of
the package to prior
proposals concerning that provision." (Charter Oak.)
(Emphasis included in quotation.)
furlough	The 	question 	the	remaining 	is whether the City's implementation of 	plan was
LBFO"reasonably comprehended" within its pre-impasse proposals. The December 4, 2009
plan which called for the employees to take
12
furlough days in fiscal year	included a furlough
all furlough days were to be completed by June 30, 2010. The furlough2009/2010 and that
plan passed by City Council resolution on May 25, 2010 also called for employees to take
26

for
	12
furlough days, but instead by November
1,
2010. 	Both plans called
	12
furlough days.
The difference between the plans was the span
of
time in which the furloughs were to be
completed: the LBFO gave almost seven months and the resolution provided slightly over five
from the span
of
	months. The span
of
time in the resolution is not a "significant departure"
time in the LBFO. (Sonoma, supra, PERB Decision No. 2100-M,
p.
14.) Accordingly,
DCEA
failed to establish a violation
of
MMBA or PERB Regulation as to the change in proposals.
REMEDY
and	Government Code section 3541.5(c), incorporated within MMBA sections 3509(a)
(b),
14
authorizes PERB:
to issue a decision and order directing an offending party to cease
and desist from the unfair practice and to take such affirmative
action, including but not limited to the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
and	It has been found that the City violated MMBA sections 3503, 3505, 3506, 	3509(b)
and PERB Regulation 32603(a), (b), (c), and (g) when it passed Resolution 10-070 on
before exhausting the fact-finding process set forth in its local rules. It is	May 25, 2010,
therefore appropriate to order the City to cease and desist from such activities in the future.
Additionally,
if
the City wants to proceed through its impasse procedures, it must provide
adequate time to complete the fact-finding process as set forth in its local rules.
to	In cases of unlawful unilateral action, PERB generally orders employers 	rescind its
unilateral action and restore the status quo ante as it existed prior to the violation. 	(County
of
27
Section 3509(a) provides that the powers and duties of PERB described in
Government Code section 3541.3 shall also apply to the MMBA. 	Section 3509(b) describes
the unfair practice jurisdiction of PERB. Government Code section 3541.3(i) empowers PERB
to investigate unfair practice charges, and to take any action and make determinations as PERB
deems necessary to effectuate the policies of this chapter.

Sacramento (2008) PERB Decision No. 1943-M and Santa Clara Unified School District
( 1979) PERB Decision No. 104.) It is therefore appropriate to order the City to rescind
Resolution 10-070 and reinstate the terms and conditions
of
employment prior to the passing
of
the May 25, 2010 resolution. (Desert Sands Unified School District (2004) PERB Decision
No. 1682.) It is also appropriate, that the City be ordered to make bargaining unit employees
whole for any losses they may have suffered due to the City's unlawful unilateral action, along
with interest at the rate
of
7 percent per annum until such time as they are restored to their
former position prior to May 25, 2010. (Mount San Antonio Community College District
(1988) PERB Decision No. 691.)
As a result
of
the above-described violation, the City has also interfered with the rights
of
employees to be represented by DCEA in violation
of
MMBA section 3506, and PERB
Regulation 32603(a), and denied DCEA its right to represent employees in their employment
relations with a public agency in violation
of
MMBA section 3503 and PERB Regulation
32603(b
).
	It is appropriate to order the City to cease and desist from such unlawful conduct.
(Rio Hondo Community College District (1983) PERB Decision No. 292.)
It
is also appropriate that the City be ordered to post a notice incorporating the terms
of
the order at all locations in the City where notices to public employees are customarily posted
for employees represented by DCEA. Posting such a notice, signed by the authorized agent
of
the City, will provide employees with notice that the City has acted in an unlawful manner, is
being required to cease and desist from such activity, and will comply with the order.	
It
effectuates the purposes
of
the MMBA that employees be informed of the resolution
of
controversy and the City's readiness to comply with the ordered remedy. 	(Placerville Union
School District (1978) PERB Decision No. 69.)
28

PROPOSED ORDER
entire	Upon the foregoing findings
of
fact and conclusions
of
law, and the 	record in the
case, it is found that the City
of
Davis (City) violated the Meyers-Milias-Brown Act
(MMBA
or Act), Government Code sections 3503, 3505, 3506, and 3509(b) and Public Employment
Relations Board (PERB) Regulation 32603(a), (b), (c), and (g) (Cal. Code Regs., tit. 8, sec.
31001 et seq.), by implementing its last, best and final offer (LBFO) upon the Davis City
Employees Association (DCEA) without exhausting fact-finding as required by the local rules.
All other allegations are dismissed.
hereby	Pursuant to section 3509, subdivision (b)
of
the Government Code, it is
ORDERED that the City, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Failing and refusing to proceed with the fact-finding process in its local
rules. 
2.	
Denying DCEA its right to represent bargaining unit members in their
employment relations with the City.
3. 	Interfering with the right
of
bargaining unit members to be represented
by their chosen representative.
TO	B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Rescind City
of
Davis City Council Resolution I 0-070, dated
May 25, 2010 and restore terms and conditions
of
employment prior to the passing
of
the
May 25, 2010 resolution.
2. 	Unless otherwise agreed to by the City and DCEA, contact DCEA to
schedule a fact-finding and complete the fact-finding process in compliance with the City's
29

process.	local rules, allowing for adequate time to complete the fact-finding
3.	
affected 	benefits due	Make all 	employees whole for any loss
of
wages or
the City's violation
of
the MMBA, including interest at 7 percent per annum.	to
4. 	this	Within ten (10) workdays
of
the service
of
a final decision in 	matter,
where notices to employees in the City are customarily posted,	post at all work locations
attached hereto as an Appendix. The Notice must be signed by an	copies
of
the Notice
this Order. 	Suchauthorized agent
of
the City, indicating that it will comply with the terms
of
posting shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps
with
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
any other material.
5.	
Order	Written notification
of
the actions taken to comply with this 	shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
General Counsel's designee. Respondent shall provide reports, in writing, as directed by	or the
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on DCEA.
this	Pursuant to California Code
of
Regulations, title
8,
section 32305, 	Proposed
Order shall become final unless a party files a statement
of
exceptions with the	Decision and
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 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
30

In accordance with PERB regulations, the statement
of
exceptions should identify
by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
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
California Code
of
Regulations, title
8,
section 32135,
subdivision ( 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.)
Any statement
of
exceptions and supporting
brief must be served concurrently with its
filing upon each party to this proceeding.
	Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Shawn P. Cloughesy
Chief Administrative Law Judge
31