City of Santa Rosa (PERB 2308M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OPERATING ENGINEERS, LOCAL 3,
Charging Party,
V.
CITY OF SANTA ROSA,
Respondent.
Case No. SF-CE-768-M
PERB Decision No. 2308-M
March
8,
2013
Appearances: Jolsna
M.
John, Associate House Counsel, for Operating Engineers, Local 3;
Caroline L. Fowler, City Attorney, for City
of
Santa Rosa.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Operating Engineers, Local 3 (Operating
Engineers) to the proposed decision (attached) by an administrative law judge (ALJ). 	The ALJ
dismissed the complaint alleging that the City
of
Santa Rosa (City) violated the Meyers-Milias-
Brown Act (MMBA)1 by demanding negotiations on a successor memorandum
of
understanding (MOU) two weeks after it had imposed its last, best and final offer (LBFO).
The complaint also alleged the City violated the MMBA by threatening to impose a 5 percent
wage reduction that was not reasonably comprehended in the City's LBFO.
The Board has reviewed the entire record in this case, including the stipulations that
comprise the record below, the ALJ's findings
of
fact and conclusions of law, the Operating
Engineers' exceptions, and the City's response thereto. The ALJ' s findings of fact are
supported by the record and neither party excepts to those findings. 	Accordingly, we adopt the
1 MMBA is codified at Government Code section 3500, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OPERATING ENGINEERS, LOCAL 3,
Charging Party,
v .
CITY OF SANTA ROSA,
Case No. SF-CE-768-M
PERB Decision No. 2308-M
March 8, 2013
Respondent.
Appearances: Jolsna M. John, Associate House Counsel, for Operating Engineers, Local 3;
Caroline L. Fowler, City Attorney, for City of Santa Rosa.
DECISION
s
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Operating Engineers, Local 3 (Operating
Engineers) to the proposed decision (attached) by an administrative law judge (ALJ). The ALJ
dismissed the complaint alleging that the City of Santa Rosa (City) violated the Meyers-Milias-
Brown Act (MMBA)' by demanding negotiations on a successor memorandum of
understanding (MOU) two weeks after it had imposed its last, best and final offer (LBFO).
The complaint also alleged the City violated the MMBA by threatening to impose a 5 percent
wage reduction that was not reasonably comprehended in the City's LBFO.
The Board has reviewed the entire record in this case, including the stipulations that
comprise the record below, the ALJ's findings of fact and conclusions of law, the Operating
Engineers' exceptions, and the City's response thereto. The ALJ's findings of fact are
upported by the record and neither party excepts to those findings. Accordingly, we adopt the
MMBA is codified at Government Code section 3500, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

ALJ' s findings
of
fact
as
the findings
of
the Board itself, except as expressly noted below. 	We
also adopt the ALJ' s conclusions
of
law consistent with the discussion below.
FACTUAL SUMMARY
The parties' MOU expired on June 30, 2009, for the two units represented by the
Operating Engineers. Three months earlier, the parties began bargaining for a successor
agreement, a process that lasted for nearly a year. 	Between March 20 and May 25, 2010, the
parties participated in impasse procedures, but were not successful in reaching agreement. 	The
City imposed its LBFO on May 25, 2010, a proposal that contained only one term, a two-tiered
retirement plan. The City chose to impose only this term, despite the fact that the entire MOU
was the subject
of
negotiation and agreement had not been reached on other subjects.
Two weeks later, on June 7, 2010, the City wrote to the Operating Engineers, noting
that the two units represented by the Operating Engineers still lacked a contract and requesting
that bargaining begin on new contracts for both units. The Operating Engineers refused to
return to the table, claiming it had no obligation to do so because the City had just imposed its
LBFO on both bargaining units and the Operating Engineers therefore had no duty to negotiate
for one year from that date. The Operating Engineers offered to meet on dates in April, 2011
to initiate negotiations before the City's adoption
of
its budget for 2011/12. The Operating
Engineers explained its view that by implementing only one term and condition
of
employment, the remaining MOU remained the status quo until the end
of
fiscal year 2010/11.
Responding to the Operating Engineers' refusal to meet during the Summer of 2010,
the City sent a second letter on July 12, 2010, describing its plan to address its declining fiscal
situation by reducing employee compensation by five percent, among other things. 	Attached
to this letter was the City manager's Budget Transmittal, which described actions the City had
taken to reduce expenses in 2009/10 and steps it intended to take in the 2010/11 fiscal year to
2	2
ALJ's findings of fact as the findings of the Board itself, except as expressly noted below. We
also adopt the ALJ's conclusions of law consistent with the discussion below.
FACTUAL SUMMARY
The parties' MOU expired on June 30, 2009, for the two units represented by the
Operating Engineers. Three months earlier, the parties began bargaining for a successor
agreement, a process that lasted for nearly a year. Between March 20 and May 25, 2010, the
parties participated in impasse procedures, but were not successful in reaching agreement. The
City imposed its LBFO on May 25, 2010, a proposal that contained only one term, a two-tiered
retirement plan. The City chose to impose only this term, despite the fact that the entire MOU
was the subject of negotiation and agreement had not been reached on other subjects.
Two weeks later, on June 7, 2010, the City wrote to the Operating Engineers, noting
that the two units represented by the Operating Engineers still lacked a contract and requesting
that bargaining begin on new contracts for both units. The Operating Engineers refused to
return to the table, claiming it had no obligation to do so because the City had just imposed
LBFO on both bargaining units and the Operating Engineers therefore had no duty to negotiate
for one year from that date. The Operating Engineers offered to meet on dates in April, 2011
to initiate negotiations before the City's adoption of its budget for 2011/12. The Operating
Engineers explained its view that by implementing only one term and condition of
employment, the remaining MOU remained the status quo until the end of fiscal year 2010/11.
Responding to the Operating Engineers' refusal to meet during the Summer of 2010,
the City sent a second letter on July 12, 2010, describing its plan to address its declining fiscal
situation by reducing employee compensation by five percent, among other things. Attached
to this letter was the City manager's Budget Transmittal, which described actions the City had
taken to reduce expenses in 2009/10 and steps it intended to take in the 2010/1 1 fiscal year to

enhance revenues and further reduce expenses. According to this document, the City identified
$2.5 million in wage and benefit savings and $1.3 million in new revenues the City hoped to
realize. It also noted that employees in most bargaining units had agreed to take no wage
reductions the	increases for the 2010/
11
fiscal year. The Budget Transmittal also summarized
City had already made in the 2009/10 fiscal year, noting, "we recognized about midway
through 2009/10 that we were still going to have a substantial deficit in 2010/11." Staff
eliminations were implemented on April 30, 2010, (shortly before the City imposed the two-
tier retirement proposal on the Operating Engineers) "(i.e., before the start
of
the 2010/11
fiscal year) to realize as much savings as possible." (Attachment to Jt. Ex. 2, p. 9.)
In the Budget Overview, also transmitted to the Operating Engineers with the Budget
Transmittal, the City noted, "By the time
of
our Fall Financial Update, however, we realized
that our revenues were coming in much lower than anticipated". (Attachment to Jt. Ex. 2,
Budget Overview, p. 15.)
After receiving the July 12, 2010 correspondence from the City, Operating Engineers
reasserted its position that its duty to bargain did not arise until the following fiscal year.
Correspondence between the parties continued in this vein until August 19, 2010, when the
City declared impasse. The only proposal the City presented to the Operating Engineers was a
five percent wage reduction.
The Operating Engineers filed this unfair practice charge on August 30, 2010, but
participated in mediation procedures in late October, 2010. Through mediation the parties
reached agreement for a one-year contract for both units, effective July
1,
2010 through June
30, 2011. The City did not impose any wage reduction on the bargaining unit employees
represented by the Operating Engineers.
3	3
enhance revenues and further reduce expenses. According to this document, the City identified
$2.5 million in wage and benefit savings and $1.3 million in new revenues the City hoped to
realize. It also noted that employees in most bargaining units had agreed to take no wage
increases for the 2010/11 fiscal year. The Budget Transmittal also summarized reductions the
City had already made in the 2009/10 fiscal year, noting, "we recognized about midway
through 2009/10 that we were still going to have a substantial deficit in 2010/11." Staff
eliminations were implemented on April 30, 2010, (shortly before the City imposed the two-
tier retirement proposal on the Operating Engineers) "(i.e., before the start of the 2010/1 1
fiscal year) to realize as much savings as possible." (Attachment to Jt. Ex. 2, p. 9.)
In the Budget Overview, also transmitted to the Operating Engineers with the Budget
Transmittal, the City noted, "By the time of our Fall Financial Update, however, we realized
that our revenues were coming in much lower than anticipated". (Attachment to Jt. Ex. 2,
Budget Overview, p. 15.)
After receiving the July 12, 2010 correspondence from the City, Operating Engineers
reasserted its position that its duty to bargain did not arise until the following fiscal year.
Correspondence between the parties continued in this vein until August 19, 2010, when the
City declared impasse. The only proposal the City presented to the Operating Engineers was a
five percent wage reduction.
The Operating Engineers filed this unfair practice charge on August 30, 2010, but
participated in mediation procedures in late October, 2010. Through mediation the parties
reached agreement for a one-year contract for both units, effective July 1, 2010 through June
30, 2011. The City did not impose any wage reduction on the bargaining unit employees
represented by the Operating Engineers.

PROPOSED DECISION
The ALJ rejected the Operating Engineers' argument that Government Code
section 3505.4 establishes a "cooling off period" after a unilateral imposition which excuses
bargaining for one year after imposition. Instead, he concluded that the legislative intent
of
the
AB 1852, 2000 amendment to the MMBA, was to correct the Court
of
Appeal decision in
Cathedral City Public Safety Management Assn.
v.
City
of
Cathedral City (1999, Docket
No. E022719. Review den. and opn. ordered nonpublished 9/15/99 S080447), in which the
court held that an employer could effectively suspend the employee organization's right to
negotiation by unilaterally implementing an MOU with a set term after impasse was reached.
The amendment to Government Code section 3505.4 overturned that decision by clarifying that
unilateral implementation does not impose an MOU, only terms encompassed in the
employer's LBFO. The union therefore cannot be deprived
of
the right each year to meet and
confer on matters within the scope
of
representation.
Finding that the supposed one-year cooling off period would conflict with the
obligation to "meet and confer promptly upon request by either party" in Government Code
section 3505, the ALJ concluded that the City did not bargain in bad faith by requesting that
negotiations convene following implementation
of
its LBFO. Likewise, the City's presentation
of
an opening proposal for a five percent reduction in compensation did not constitute bad faith
bargaining, according to the ALJ.
DISCUSSION
The Operating Engineers argues in its exceptions that the ALJ's decision renders the
MMBA a nullity because it would promote "perpetual concession bargaining on piecemeal
single proposals." However, the Operating Engineers prosecuted this case solely on a theory
that AB 1852 requires a one-year cooling off period after an employer imposes its LBFO.
4
PROPOSED DECISION
4
The ALJ rejected the Operating Engineers' argument that Government Code
section 3505.4 establishes a "cooling off period" after a unilateral imposition which excuses
bargaining for one year after imposition. Instead, he concluded that the legislative intent of the
AB 1852, 2000 amendment to the MMBA, was to correct the Court of Appeal decision in
Cathedral City Public Safety Management Assn. v. City of Cathedral City (1999, Docket
No. E022719. Review den. and opn. ordered nonpublished 9/15/99 080447), in which the
court held that an employer could effectively suspend the employee organization's right to
negotiation by unilaterally implementing an MOU with a set term after impasse was reached.
The amendment to Government Code section 3505.4 overturned that decision by clarifying that
unilateral implementation does not impose an MOU, only terms encompassed in the
employer's LBFO. The union therefore cannot be deprived of the right each year to meet and
confer on matters within the scope of representation.
Finding that the supposed one-year cooling off period would conflict with the
obligation to "meet and confer promptly upon request by either party" in Government Code
section 3505, the ALJ concluded that the City did not bargain in bad faith by requesting that
negotiations convene following implementation of its LBFO. Likewise, the City's presentation
of an opening proposal for a five percent reduction in compensation did not constitute bad faith
bargaining, according to the ALJ.
DISCUSSION
The Operating Engineers argues in its exceptions that the ALJ's decision renders the
MMBA a nullity because it would promote "perpetual concession bargaining on piecemeal
single proposals." However, the Operating Engineers prosecuted this case solely on a theory
that AB 1852 requires a one-year cooling off period after an employer imposes its LBFO.

We acknowledge the ample precedent under the National Labor Relations Act
explaining why piecemeal bargaining, or any negotiating conduct that "reduces the flexibility
of collective bargaining and narrows the range of possible compromises by rigidly and
unreasonably fragmenting negotiations" violates the duty to bargain in good faith. (E. I.
Du Pont & Co. (1991) 304 NLRB 792, 800. See also Sartorious, Inc. (1997) 323 NLRB 1275;
Sacramento Union (1988) 291 NLRB 552, 556; Winn-Dixie Stores, Inc. (1979) 243 NLRB
972, 974.)
This case was presented to the ALJ on stipulated facts, rather than live testimony. 	This
abbreviated record does not permit us to consider any of the typical factual scenarios that the
above-quoted cases have characterized as improper piecemeal bargaining, e.g. refusing to
discuss economic issues until non-economic issues are settled, or unilaterally changing one
term while engaged in negotiations on other terms. Nor does it permit us to consider possible
employer defenses to alleged piecemeal bargaining. Thus, we do not address the alleged
piecemeal bargaining claims in this case.
By its argument that there is a mandated "cooling off' period after imposition of a
LBFO, the Operating Engineers seems to be asserting that an imposed LBFO includes an
implied zipper clause that is to last for one year. This assertion is completely at odds with the
purpose of AB 1852, which was to correct a judicial decision that permitted a multi-year MOU
to be imposed, therefore extinguishing the union's right to bargain during the imposed term.
The Legislature recognized that this result confounded the purpose of the MMBA and
overturned the decision by passing AB 1852 in 2000.
5
PERB itself has recognized that unilateral impositions after the completion of impasse
procedures do not impose a collective bargaining agreement with a duration clause limiting
negotiations for a specified period. (Rowland Unified School District (1994) PERB Decision
5
We acknowledge the ample precedent under the National Labor Relations Act
explaining why piecemeal bargaining, or any negotiating conduct that "reduces the flexibility
of collective bargaining and narrows the range of possible compromises by rigidly and
unreasonably fragmenting negotiations" violates the duty to bargain in good faith. (E. I.
Du Pont & Co. (1991) 304 NLRB 792, 800. See also Sartorious, Inc. (1997) 323 NLRB 1275;
Sacramento Union (1988) 291 NLRB 552, 556; Winn-Dixie Stores, Inc. (1979) 243 NLRB
972, 974.)
This case was presented to the ALJ on stipulated facts, rather than live testimony. This
abbreviated record does not permit us to consider any of the typical factual scenarios that the
above-quoted cases have characterized as improper piecemeal bargaining, e.g. refusing to
discuss economic issues until non-economic issues are settled, or unilaterally changing one
term while engaged in negotiations on other terms. Nor does it permit us to consider possible
employer defenses to alleged piecemeal bargaining. Thus, we do not address the alleged
piecemeal bargaining claims in this case.
By its argument that there is a mandated "cooling off" period after imposition of a
LBFO, the Operating Engineers seems to be asserting that an imposed LBFO includes an
implied zipper clause that is to last for one year. This assertion is completely at odds with the
purpose of AB 1852, which was to correct a judicial decision that permitted a multi-year MOU
to be imposed, therefore extinguishing the union's right to bargain during the imposed term.
The Legislature recognized that this result confounded the purpose of the MMBA and
overturned the decision by passing AB 1852 in 2000.
PERB itself has recognized that unilateral impositions after the completion of impasse
procedures do not impose a collective bargaining agreement with a duration clause limiting
negotiations for a specified period. (Rowland Unified School District (1994) PERB Decision

No. 1053; State
of
California (Department
of
Personnel Administration) (2010) PERB
Decision No. 213 0-S [unilateral implementation
of
a duration clause would illegally limit the
statutory right to bargain; imposition cannot waive or limit the union's right to bargain, should
impasse be broken]. 2)
legislative	Consequently, we find no basis in our precedent or in 	history to support the
Operating Engineers' view that AB 1852 created an exception to the rule that an imposition
does not establish a set duration for imposed terms and conditions
of
employment. We also
agree with the ALJ' s conclusion that the legislative history
of
AB 1852 contains nothing to
support the Operating Engineers' claim that there is a one-year hiatus on the union's duty to
bargain. The legislative intent was to declare that the employer's post-impasse imposition
does not extinguish the right
of
the employee organization to negotiate prior to the adoption
of
the agency's annual budget, or "as otherwise required by law." (§ 3505.4.) The amended
statute is thus a sword enabling the union to assert bargaining rights after imposition. It is not
a shield protecting the union from legitimate demands to bargain from the employer.
ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SF-CE-768-M
is DISMISSED.
Martinez	Chair 	and Member Huguenin joined in this Decision.
Impasse can be broken when concessions in bargaining positions sufficient to revive
the possibility of fruitful discussions create changed circumstances that revivify the duty to
bargain after imposition. (Public Employment Relations Bd.
v.
Modesto City Schools Dist.
(1982) 136 Cal.App.3d 881, 899.)
6	6
No. 1053; State of California (Department of Personnel Administration) (2010) PERB
Decision No. 2130-S [unilateral implementation of a duration clause would illegally limit the
statutory right to bargain; imposition cannot waive or limit the union's right to bargain, should
impasse be broken].2)
Consequently, we find no basis in our precedent or in legislative history to support the
Operating Engineers' view that AB 1852 created an exception to the rule that an imposition
does not establish a set duration for imposed terms and conditions of employment. We also
agree with the ALJ's conclusion that the legislative history of AB 1852 contains nothing to
support the Operating Engineers' claim that there is a one-year hiatus on the union's duty to
bargain. The legislative intent was to declare that the employer's post-impasse imposition
does not extinguish the right of the employee organization to negotiate prior to the adoption of
the agency's annual budget, or "as otherwise required by law." ($ 3505.4.) The amended
statute is thus a sword enabling the union to assert bargaining rights after imposition. It is not
a shield protecting the union from legitimate demands to bargain from the employer.
ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SF-CE-768-M
is DISMISSED.
Chair	Chair Mar	Chair Martinez and Member Huguenin joined in
" Impasse can be broken when concessions in bargaining positions sufficient to revive
the possibility of fruitful discussions create changed circumstances that revivify the duty to
bargain after imposition. (Public Employment Relations Bd. v. Modesto City Schools Dist.
(1982) 136 Cal.App.3d 881, 899.)

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
OPERATING ENGINEERS LOCAL 3,
Charging Party,
V.
CITY OF SANTA ROSA,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-768-M
PROPOSED DECISION
(4/16/2012)
Appearances: Jolsna M. John, Associate House Counsel, for Operating Engineers Local 3;
Caroline L. Fowler, City Attorney, for City of Santa Rosa.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges a public employer breached its duty to bargain in good faith
1
in violation of the Meyers-Milias-Brown Act (MMBA) 	when it requested that the union
resume negotiations for a successor contract two weeks after implementing its last, best and
final offer (LBFO). The employer denies any violation of the MMBA.
On August 30, 2010, the Charging Party, Operating Engineers Local 3 (Local 3), filed
with the Public Employment Relations Board (PERB or Board) an unfair practice charge
against the City of Santa Rosa (City) and a request for injunctive relief. 	The City responded to
the charge and injunctive relief request on September 2, 2010. 	Local 3 filed a reply on
September 3, 2010. The Board denied Local 3's request for injunctive relief on
September 7, 2010.
1 The MMBA is codified at Government Code section 3500 et seq. 	Hereafter all
statutory references are to the Government Code unless otherwise noted.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
OPERATING ENGINEERS LOCAL 3,
Charging Party,
V.
UNFAIR PRACTICE
CASE NO. SF-CE-768-M
PROPOSED DECISION
(4/16/2012)
CITY OF SANTA ROSA,
Respondent.
Appearances: Jolsna M. John, Associate House Counsel, for Operating Engineers Local 3;
Caroline L. Fowler, City Attorney, for City of Santa Rosa.
Before Shawn P. Cloughesy, Chief Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges a public employer breached its duty to bargain in good faith
in violation of the Meyers-Milias-Brown Act (MMBA)' when it requested that the union
resume negotiations for a successor contract two weeks after implementing its last, best and
final offer (LBFO). The employer denies any violation of the MMBA.
On August 30, 2010, the Charging Party, Operating Engineers Local 3 (Local 3), filed
with the Public Employment Relations Board (PERB or Board) an unfair practice charge
against the City of Santa Rosa (City) and a request for injunctionelief. The City responded to
the charge and injunctionelief request on September 2, 2010. Local 3 filed a reply on
September 3, 2010. The Board denied Local 3's request for injunctionelief on
September 7, 2010.
The MMBA is codified at Government Code section 3500 et seq. Hereafter all
statutory references are to the Government Code unless otherwise noted.

2
On May 3, 2011, the PERB Office of the General Counsel issued a complaint that
alleged the City violated its duty to bargain in good faith when it requested that Local 3 meet
and confer regarding a successor contract two weeks after implementing its LBFO. The
complaint also alleged the City breached its duty to participate in impasse procedures or, in the
alternative, failed to bargain in good faith when the City continued to demand to bargain and
threatened to impose a five-percent wage reduction when the wage reduction was not
reasonably comprehended in the LBFO that was previously imposed. By the above conduct,
the City is alleged to have violated MMBA sections 3503, 3505, 3505.4,2 3506, 3509(b) and
PERB Regulation 32603(a), (b), (c) and (e).	PERB Regulation 32603(a), (b), (c) and (e).'3
The City answered the complaint on May 20, 2011, denying the substantive allegations
and asserting affirmative defenses.
The parties participated in a settlement conference conducted by a Board agent on
June 30, 2011, but the matter was not resolved.
In lieu of a formal hearing, the parties submitted a stipulation of facts and exhibits. The
parties submitted briefs on January 17, 2012. On March 26, 2012, the matter was reassigned to
the undersigned as the previous Administrative Law Judge (ALJ) discovered she may have
participated in the review of the injunctive relief request. Neither party objected to the
reassignment.
On March 30, 2012, the undersigned ALJ proposed to take official notice of Assembly
Bill (AB) 1852 and its legislative analyses which eventually led to the enactment of MMBA
section 3505.4. The interpretation of MMBA section 3505.4 is at the center of the dispute. By
2 MMBA section 3505.4 was subsequently amended by AB 646, Ch. 680/Stats. 2011.
The relevant provisions referenced in this case were added to section 3505.7 effective
January 1, 2012.
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

3
April 6, 2012, neither party objected to the request for official notice and submitted brief
arguments in support of its interpretation of MMBA section 3505.4. Official notice is
therefore taken of AB 1852 and its legislative history. The matter was submitted for proposed
decision as of April 6, 2012.
FINDINGS OF FACT
Jurisdiction
Local 3 is a "recognized employee organization" within the meaning of MMBA
section 3501 (b) and an "exclusive representative" within the meaning of PERB
Regulation 32016(b), of the City's employees in Unit 3 - Maintenance, and Unit 16 - Utilities
Systems Operators. The City is a public agency within the meaning of MMBA section 3501(c)
and PERB Regulation 32016(a).
Background
Christine Sliz (Sliz) is the City's Employee Relations Manager. Don Dietrich
(Dietrich) is the Local 3 Director of Public Employees Division.
Local 3 and the City are parties to a Memorandum of Understanding (MOU) that
expired June 30, 2009. In April 2009, Local 3 and the City initiated negotiations for a
successor agreement. The parties eventually participated in pre-impasse and post-impasse
procedures from March 20, 2010 through May 25, 2010. On May 25, 2010, the City Council
voted to impose its LBFO. The LBFO contained only one proposal, a two-tiered retirement
plan.4
An allegation of bad faith bargaining regarding the implementation of the LBFO	#
was the subject of two other unfair practice charges filed by Local 3 (SF-CE-742-M and
SF-CE-743-M). The proposed decision issued in those consolidated cases did not find bad
faith bargaining.
3

City's Request to Return
to
the Bargaining Table after Implementation
of
its LBFO
In a letter
to
Dietrich dated June
7,
2010, Sliz noted that Units 3 and
16
remained
without a contract. Sliz requested that Local 3 return to the bargaining table
to
negotiate
contracts for both bargaining units.
On June
9,
2010, Dietrich responded to the request to convene negotiations. Dietrich
mentioned the recent implementation
of
the City's LBFO and quoted MMBA section 3505.4,5
suggesting Local 3 did not have an obligation to meet and confer again for one year. 	Dietrich
offered the date
of
April 19, 2011, more than
10
months later, to initiate negotiations prior to
the adoption
of
the City's 2011/12 annual budget.
On June 17, 2010, Sliz sought clarification from Dietrich on the basis for Local
3'
s
refusal to meet and confer. Sliz reminded Dietrich that the recent implementation
of
the LBFO
followed the conclusion
of
negotiations for 2009/10. 	Sliz' s letter continued:
As you know, the City's financial situation continues to decline.
The Council recently approved a budget for FYI 0-11 that has a
gap
of
approximately $3.8M. The City's strategy to fill in the
gap involves a combination
of
revenue enhancements
(approximately $I.3M) and employee concessions/reductions
During the relevant period, MMBA section 3505.4 stated:
If
after 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
included	scope
of
representation, whether or not those matters are
in the unilateral implementation, prior to the adoption by the
public agency of its annual budget, or as otherwise required by
law.
4
City's Request to Return to the Bargaining Table after Implementation of its LBFO
n	I 	a letter to Dietrich dated June 7, 2010, Sliz noted that Units 3 and 16 remained
without a contract. Sliz requested that Local 3 return to the bargaining table to negotiate
contracts for both bargaining units.
On June 9, 2010, Dietrich responded to the request to convene negotiations. Dietrich
mentioned the recent implementation of the City's LBFO and quoted MMBA section 3505.4,
suggesting Local 3 did not have an obligation to meet and confer again for one year. Dietrich
offered the date of April 19, 2011, more than 10 months later, to initiate negotiations prior to
the adoption of the City's 2011/12 annual budget.
On June 17, 2010, Sliz sought clarification from Dietrich on the basis for Local 3's
refusal to meet and confer. Sliz reminded Dietrich that the recent implementation of the LBFO
followed the conclusion of negotiations for 2009/10. Sliz's letter continued:
As you know, the City's financial situation continues to decline.
The Council recently approved a budget for FY10-11 that has a
gap of approximately $3.8M. The City's strategy to fill in the
gap involves a combination of revenue enhancements
(approximately $1.3M) and employee concessions/reductions
4
During the relevant period, MMBA section 3505.4 stated:
If after 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.
(Emphasis added.)	(Emphasis added.)

(approximately $2.5M). The Council directed staff to obtain a
5% concession from each bargaining unit.
The City's opening proposal
to
[Local
3]
is for a 5% salary
reduction. A 5% salary reduction from each
of
the City's
bargaining units will mitigate but may not completely eliminate
the need for additional staff reductions. The 5% salary reduction
from Unit 3 and
16
employees plays a critical role in balancing
the budget this year.
Local 3 and the City continued to exchange correspondence about the obligation to
bargain. Local 3 asserted it was not refusing to bargain but, rather it did not have an obligation
to bargain again until April 2011, prior to the adoption
of
the City's 2011/12 budget. 	The City,
in tum, reminded Local 3
of
the "mutual obligation personally to meet and confer promptly
upon request by either party," pursuant to the MMBA. (MMBA sec. 3505.)
Finally, on August 19, 2010, Sliz notified Dietrich the City was declaring impasse,
stating:
In spite
of
the City's good faith efforts to bring [Local
3]
back to
the negotiating table promptly, [Local
3]
has chosen to refuse to
meet and confer promptly upon the City's request as required by
the MMBA. The City is declaring impasse with [Local 3].
Please contact me by August 25, 2010 to discuss mediation. 	If
[Local
3]
refuses to mediate, the City will consider the unit as
waiving the right to bargain and will take action to impose the
salary reduction outlined in the opening proposal.
On August 30, 2010, Local 3 filed the present unfair practice charge and requested that
PERB seek a restraining order against the City. The Board denied the request on
September 7, 2010.
Beginning on September 9, 2010, the City and Local 3 exchanged email to schedule
mediation. 	The parties participated in mediation on October 25 and 27, 2010, and reached
agreement on a contract covering the period July
1,
2010 through June 30, 2011. On
November 16, 2010, the City Council adopted separate MOUs for Unit 3 and Unit 16.
5	5
(approximately $2.5M). The Council directed staff to obtain a
5% concession from each bargaining unit.
The City's opening proposal to [Local 3] is for a 5% salary
reduction. A 5% salary reduction from each of the City's
bargaining units will mitigate but may not completely eliminate
the need for additional staff reductions. The 5% salary reduction
from Unit 3 and 16 employees plays a critical role in balancing
the budget this year.
Local 3 and the City continued to exchange correspondence about the obligation to
bargain. Local 3 asserted it was not refusing to bargain but, rather it did not have an obligation
to bargain again until April 2011, prior to the adoption of the City's 2011/12 budget. The City,
in turn, reminded Local 3 of the "mutual obligation personally to meet and confer promptly
upon request by either party," pursuant to the MMBA. (MMBA sec. 3505.)
Finally, on August 19, 2010, Sliz notified Dietrich the City was declaring impasse,
stating:
In spite of the City's good faith efforts to bring [Local 3] back to
the negotiating table promptly, [Local 3] has chosen to refuse to
meet and confer promptly upon the City's request as required by
the MMBA. The City is declaring impasse with [Local 3].
Please contact me by August 25, 2010 to discuss mediation. If
[Local 3] refuses to mediate, the City will consider the unit as
waiving the right to bargain and will take action to impose the
salary reduction outlined in the opening proposal.
On August 30, 2010, Local 3 filed the present unfair practice charge and requested that
PERB seek a restraining order against the City. The Board denied the request on
September 7, 2010.
Beginning on September 9, 2010, the City and Local 3 exchanged email to schedule
mediation. The parties participated in mediation on October 25 and 27, 2010, and reached
agreement on a contract covering the period July 1, 2010 through June 30, 2011. On
November 16, 2010, the City Council adopted separate MOUs for Unit 3 and Unit 16.

Legislative History
of
MMBA 3505.4
section	On September
7,
2000, AB 1852, which added MMBA 	3505.4, was chaptered.
The Legislative Counsel's Digest for the chaptered legislation provided:
The bill would provide that the unilateral implementation
of
a
public agency's last, best, and final offer shall not deprive a
recognized employee organization
of
its right each year to meet
and confer on matters within the scope
of
representation prior to
the public agency adopting its budget or as otherwise required by
law.
(Emphasis added.)
The Senate Floor analyses regarding the proposed language which was chaptered,
stated in part:
According to the sponsors, "Last year, the Fourth Appellate Court
issued an unprecedented and controversial decision in [Cathedral
City6]
that could radically change the balance
of
power in the
bargaining process. This lawsuit was a result
of
an impasse
between the City
of
Cathedral and the local police association.
"The City
of
Cathedral began negotiating a new memorandum
of
understanding (MOU) with the police association in
December 1995. No agreement was reached after nine months
of
negotiations. Pursuant to city rules, they followed the
procedures for the resolution
of
impasse and began mediation in
August 1996. Again, no agreement was reached. From
August 1996 through May 1997, the city and the police
association communicated sporadically about the employment
issues and about procedures for resolving the impasse. On
August 13, 2007, the city council voted 5-0 to impose the city's
last and best final offer. The action that specifically led to
litigation was the city's decision to unilaterally impose a multi-
year MOU over the objections of the police association. The
specific employment terms of the MOU were effective
July
1,
1997 through December 31, 1999 - two and a half years.
"The Fourth Appellate Court upheld this highly unprecedented
and controversial action of the City of Cathedral. Under the
Court's decision, a public employer could effectively extinguish
6
6 Cathedral City Public Safety Management Association
v.
City
of
Cathedral City
(Cathedral City). The California Supreme Court denied review and directed that the decision
not be published. (1999 Cal.LEXIS 6387.)
6
Legislative History of MMBA 3505.4
On September 7, 2000, AB 1852, which added MMBA section 3505.4, was chaptered.
The Legislative Counsel's Digest for the chaptered legislation provided:
The bill would provide that the unilateral implementation of a
public agency's last, best, and final offer shall not deprive a
recognized employee organization of its right each year to meet
and confer on matters within the scope of representation prior to
the public agency adopting its budget or as otherwise required by
law.
(Emphasis added.)
The Senate Floor analyses regarding the proposed language which was chaptered,
stated in part:
According to the sponsors, "Last year, the Fourth Appellate Court
issued an unprecedented and controversial decision in [Cathedral
City"] that could radically change the balance of power in the
bargaining process. This lawsuit was a result of an impasse
between the City of Cathedral and the local police association.
"The City of Cathedral began negotiating a new memorandum of
understanding (MOU) with the police association in
December 1995. No agreement was reached after nine months
of negotiations. Pursuant to city rules, they followed the
procedures for the resolution of impasse and began mediation in
August 1996. Again, no agreement was reached. From
August 1996 through May 1997, the city and the police
association communicated sporadically about the employment
issues and about procedures for resolving the impasse. On
August 13, 2007, the city council voted 5-0 to impose the city's
last and best final offer. The action that specifically led to
litigation was the city's decision to unilaterally impose a multi-
year MOU over the objections of the police association. The
specific employment terms of the MOU were effective
July 1, 1997 through December 31, 1999 - two and a half years.
"The Fourth Appellate Court upheld this highly unprecedented
and controversial action of the City of Cathedral. Under the
Court's decision, a public employer could effectively extinguish
Cathedral City Public Safety Management Association v. City of Cathedral City
(Cathedral City). The California Supreme Court denied review and directed that the decision
not be published. (1999 Cal.LEXIS 6387.)

the employees' statutory right to bargain collectively by imposing
long[-]term agreements
of
five or ten years upon impasse. At the
urging
of
several public employee labor organizations, the
Supreme Court reviewed the Appellate Court decision and
directed the Reporter
of
Decisions not to publish the decision.
Nonetheless, the opinion stands as a glaring contradiction to past
practices in local government labor relations and establishes a
precedent for other local agency employers to emulate the
Cathedral city council."
ISSUES
1.	
Did the City breach its duty to bargain in good faith when it requested that
a	Local 3 meet and confer regarding 	successor contract two weeks after implementing its
LBFO?
2. 	Did the City breach its duty to bargain in good faith or participate in impasse
procedures by continuing to demand to bargain and threatening a five-percent wage reduction
when the wage reduction was not reasonably comprehended in the LBFO that was imposed on
May 25, 2010?
CONCLUSIONS OF LAW
MMBA section 3505 sets forth the parties' bargaining obligations, stating in 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
promptly upon request	obligation personally to meet and confer
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.
(Emphasis added.)
During the relevant period, MMBA section 3505.4 stated:
If after 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
7
the employees' statutory right to bargain collectively by imposing
long[-]term agreements of five or ten years upon impasse. At the
urging of several public employee labor organizations, the
Supreme Court reviewed the Appellate Court decision and
directed the Reporter of Decisions not to publish the decision.
Nonetheless, the opinion stands as a glaring contradiction to past
practices in local government labor relations and establishes a
precedent for other local agency employers to emulate the
Cathedral city council."
ISSUES
1. 	Did the City breach its duty to bargain in good faith when it requested that
a	Local 3 meet and confer regarding 	successor contract two weeks after implementing its
LBFO?
2. 	Did the City breach its duty to bargain in good faith or participate in impasse
procedures by continuing to demand to bargain and threatening a five-percent wage reduction
when the wage reduction was not reasonably comprehended in the LBFO that was imposed on
May 25, 2010?
CONCLUSIONS OF LAW
MMBA section 3505 sets forth the parties' bargaining obligations, stating in 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. . . .
(Emphasis added.)
During the relevant period, MMBA section 3505.4 stated:
7
after meeting and conferring in good faith, an impasse has been	If
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.
(Emphasis added.)
alleges	The complaint 	the City violated MMBA sections 3505 and 3505.4, and PERB
Regulation 32603(c) by engaging in bad faith bargaining. 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.)
Local 3 contends the City breached its duty to bargain in good faith when it requested
that Local 3 return to the bargaining table to negotiate MOU's for Units 3 and
16
two weeks
after implementing its LBFO. Local 3 asserts the City's demand to convene negotiations
violates the one-year "cooling
off'
period implied by MMBA section 3505.4. Local 3 does not
cite any authority for its assertion that MMBA section 3505.4 establishes a one-year cooling
off period exists following implementation
of
a LBFO, other than to assert that MMBA
section 3505.4 only gave the right to demand to bargain each year to employee organizations.
Local 3 argues the City could have included the five-percent wage reduction in the LBFO
implemented on May 25, 2010, but chose not to do so.
The City contends Local 3 's claim
of
a mandatory cooling off period is not supported
by any statutory or legal authority under the MMBA and that AB 1852 was legislatively driven
to solve a problem created by the Cathedral City case. The City asserts there is nothing in the
City's Employer-Employee Regulations or the MMBA that precluded the City from asking
Local 3 to convene negotiations when there was no contract in effect between the parties.
8	8
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
(Emphasis added.)
lleges	The complaint a	The complaint alleges the City violated MMBA sections 3505
Regulation 32603(c) by engaging in bad faith bargaining. 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.)
Local 3 contends the City breached its duty to bargain in good faith when it requested
that Local 3 return to the bargaining table to negotiate MOU's for Units 3 and 16 two weeks
after implementing its LBFO. Local 3 asserts the City's demand to convene negotiations
violates the one-year "cooling off" period implied by MMBA section 3505.4. Local 3 does not
cite any authority for its assertion that MMBA section 3505.4 establishes a one-year cooling
off period exists following implementation of a LBFO, other than to assert that MMBA
section 3505.4 only gave the right to demand to bargain each year to employee organizations.
Local 3 argues the City could have included the five-percent wage reduction in the LBFO
implemented on May 25, 2010, but chose not to do so.
The City contends Local 3's claim of a mandatory cooling off period is not supported
by any statutory or legal authority under the MMBA and that AB 1852 was legislatively driven
to solve a problem created by the Cathedral City case. The City asserts there is nothing in the
City's Employer-Employee Regulations or the MMBA that precluded the City from asking
Local 3 to convene negotiations when there was no contract in effect between the parties.

Only after Local 3 repeatedly refused to bargain was the City forced
to
declare impasse and
offer to participate in mediation. The City emphasizes that the parties reached agreement
through mediation on new MOU's and a wage reduction was never imposed on Local
3.
The basic rule
of
statutory interpretation is that the intent
of
the legislative body is to be
given effect. (Long Beach Police Officers Assn.
v.
City
of
Long Beach (1988) 46 Cal.3d 736.)
Ascertaining legislative intent begins with examination
of
the words
of
the statute. (Ibid.)	
If
necessary to resolve ambiguity, reference may be made to the statute's legislative history and
statutory context. (Ibid.)
A review
of
MMBA section 3 505
.4
provides that after exhaustion
of
any applicable
impasse procedures a public agency may implement its LBFO, but not a MOU. The
implementation
of
a LBFO "shall not deprive a recognized employee organization
of
the right
each year to meet and confer on matters within the scope
of
representation." (MMBA
in this provision demonstrates the Legislature established a one-year	sec. 3505.4.) Nothing
cooling off period following implementation of a LBFO. In fact, such a provision would
appear to conflict with the obligation to "meet and confer promptly upon request by either
party" in MMBA section 3505. In Dublin Professional Fire Fighters, Local 1885, AFL-CJO
v.
Valley Community Services District (1975) 45 Cal.App.3d 116, 118, the court construed
Section 3505, stating, "the obligation, in proper cases, to 'meet and confer promptly upon
request' is absolute." The court further held that a public agency's budget cycle did not control
the timing of negotiations, holding that a request to bargain "may be made at any time by
either side." (Id. at p. 118.) Thus, the statutory obligation to meet "promptly upon request"
applies equally to both parties and is not limited by a public agency's budget cycle.
9
Furthermore, Local 3' s contention is refuted by the legislative history for
Section 3505.4. In adopting AB 1852, the Legislature was responding to the Cathedral City
Only after Local 3 repeatedly refused to bargain was the City forced to declare impasse and
offer to participate in mediation. The City emphasizes that the parties reached agreement
through mediation on new MOU's and a wage reduction was never imposed on Local 3.
The basic rule of statutory interpretation is that the intent of the legislative body is to be
given effect. (Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736.)
Ascertaining legislative intent begins with examination of the words of the statute. (Ibid.) If
necessary to resolve ambiguity, reference may be made to the statute's legislative history and
statutory context. (Ibid.)
A review of MMBA section 3505.4 provides that after exhaustion of any applicable
impasse procedures a public agency may implement its LBFO, but not a MOU. The
implementation of a LBFO "shall not deprive a recognized employee organization of the right
each year to meet and confer on matters within the scope of representation." (MMBA
sec. 3505.4.) Nothing in this provision demonstrates the Legislature established a one-year
cooling off period following implementation of a LBFO. In fact, such a provision would
appear to conflict with the obligation to "meet and confer promptly upon request by either
party" in MMBA section 3505. In Dublin Professional Fire Fighters, Local 1885, AFL-CIO v.
Valley Community Services District (1975) 45 Cal.App.3d 116, 118, the court construed
Section 3505, stating, "the obligation, in proper cases, to "meet and confer promptly upon
request' is absolute." The court further held that a public agency's budget cycle did not control
the timing of negotiations, holding that a request to bargain "may be made at any time by
either side." (Id. at p. 118.) Thus, the statutory obligation to meet "promptly upon request"
applies equally to both parties and is not limited by a public agency's budget cycle.
Furthermore, Local 3's contention is refuted by the legislative history for
Section 3505.4. In adopting AB 1852, the Legislature was responding to the Cathedral City

decision which upheld a city's decision to implement a LBFO comprised of a three-year MOU.
The city's implementation of the MOU deprived the union of the opportunity to bargain for the
three-year period.
The Senate Floor Analysis for AB 1852 explains the Legislature was seeking to reverse
the decision of the court and prohibit a public agency from unilaterally implementing a MOU
that would impede a union's right to bargain for an extended period. 	There is no reference in
the legislative history to a cooling off period which bars a public agency from requesting
negotiations.
Accordingly, the City's conduct, requesting Local 3 to convene negotiations following
implementation of a LBFO, does not demonstrate bad faith bargaining; nor does the City's
continued demand to bargain or the presentation of its opening proposal for a five percent
wage reduction.
PROPOSED ORDER
10
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SF-CE-768-M,
Operating Engineers Local 3 v. City of Santa Rosa, are hereby DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
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

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).)
11
Shawn P. Cloughesy
Chief Administrative Law Judge
11
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, $$ 32135, subd. (a) and 32130; see also Gov. Code,
$$ 1 1020, 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