County of San Joaquin (PERB 2490M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1021,
Charging Party,
v.
COUNTY OF SAN JOAQUIN,
Respondent.
Case No. SA-CE-804-M
PERB Decision No. 2490-M
June 30, 2016
Appearances: Weinberg, Roger & Rosenfeld by Matthew J. Gauger and Anthony J. Tucci,
Attorneys, for Service Employees International Union Local 1021; Office of the County
Counsel by Kimberly D. Johnson, Deputy County Counsel, for County of San Joaquin.
Before Winslow, Banks and Gregersen, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions by Service Employees International Union Local 1021 (SEIU) to the
proposed decision (attached) of a PERB administrative law judge (ALJ) dismissing the
complaint and SEIU’s unfair practice charge. The complaint, as amended at the hearing,
alleged that the County of San Joaquin (County) violated the Meyers-Milias-Brown Act1
(MMBA) and PERB regulations 	by unilaterally eliminating a practice in the County’s District
Attorney’s office of providing flexible schedules for bargaining-unit employees with child care
2
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
1
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

responsibilities, and by failing or refusing to provide SEIU with necessary and relevant
information regarding the policies and procedures of the County’s District Attorney’s office.
The ALJ dismissed the unilateral change allegation after concluding that SEIU had
failed to establish the existence of a flexible schedule past practice that was known to and
historically accepted by both parties. Alternatively, the ALJ reasoned that, even if an
established practice of allowing flexible work schedules had existed, as alleged in the
complaint, the parties’ Memorandum of Understanding (MOU) authorized the County to
change employees’ schedules without notice or opportunity for bargaining. The ALJ also
dismissed the allegation that the County had failed or refused to provide SEIU with
information about the District Attorney’s office policies and procedures, after concluding that
SEIU had failed to put on any evidence that the County had not provided the requested
information.
SEIU excepts to the ALJ’s findings that SEIU failed to prove either the existence of an
established practice whereby employees who arrived late to work because of child care
responsibilities were permitted to make up the missed time during their lunch break, and to the
ALJ’s finding that the parties’ MOU authorized the County to act unilaterally to change
employee schedules. SEIU also excepts to the credibility determinations used by the ALJ to
resolve conflicting testimony on whether the County had known about or followed a flexible
scheduling practice as alleged in the complaint. SEIU also excepts to the ALJ’s finding that
the record contained no evidence demonstrating that the County never produced the
information requested by SEIU. The County has filed no exceptions and urges the Board to
adopt the ALJ’s proposed decision in its entirety.
2

We have reviewed SEIU’s exceptions and supporting brief, the County’s response, the
proposed decision and the entire record in light of applicable law. Based on this review, we
conclude that the ALJ’s factual findings are supported by the record and that her conclusions of
law are well-reasoned and in accordance with applicable law. We therefore adopt the proposed
decision as the decision of the Board itself, subject to the following discussion of SEIU’s
exceptions.
DISCUSSION
1. 	Whether SEIU Proved the Existence of a Flexible Schedule Practice
SEIU argues that, since at least 2008, the County knew that a significant number of
bargaining-unit employees were arriving late to work and making up the time at lunch. The
County’s answer to the complaint admitted that that some employees had arrived at work up to
30 minutes past their 8:00 a.m. shift start time to drop their children off at school, and had
shortened their lunch period or worked late to make up the time. However, the County denied
that this arrangement constituted a policy or that it was permitted and it averred that this
arrangement was permitted by Sylvia Isordia (Isordia), a Senior Legal Technician and the
immediate supervisor of the District Attorney’s clerical employees, without management’s
knowledge or consent. The uncontradicted evidence established that the County’s written
polices required the District Attorney’s clerical employees to report to work at 8:00 a.m. It also
established that Isordia, as their lead, could approve employee requests for time off, but did not
have authority to approve schedule changes.
Consequently, SEIU’s case turned not on establishing the existence of a flexible
scheduling practice, since that issue was admitted in the County’s pleadings. Rather, the key
3

factual issue in dispute was whether anyone in management above Isordia knew about and
permitted the flexible scheduling practice, as alleged in the complaint.
District Attorney James Willett (Willett) was not called as a witness and Assistant
District Attorney Edward Busuttil (Busuttil) testified that neither he nor Willett had direct
supervision over the District Attorney’s clerical employees. Busuttil testified, without
contradiction that Millie James (James), who is an administrative assistant and Willett’s
personal assistant, is the “ultimate supervisor” of the District Attorney’s clerical staff and that
only James could approve a modified schedule on an ongoing basis. (Reporter’s Transcript
(R.T.), 97:13-15; 99:16-17; 114:7-9.) Busuttil and James denied knowing that clerical
employees were coming to work late and making up time during lunch or consenting to this
practice. (R.T., 55:5; 14-15; 98:28; 114:7-9; 133:22-134:15.) As noted by the ALJ, much of
Isordia’s testimony about her discussions with James concerning modified work schedules was
not about the practice of permitting employees to drop off their children before work and make
up time during their lunch, but about modified schedules legally mandated by the federal Family
Medical Leave Act (FMLA). In other instances, Isordia’s testimony was too uncertain to
determine whether she ever made this distinction when speaking with James about the fact that
some clerical employees were on a modified schedule.
Like Isordia, SEIU’s other witness, steward Melanie Crutchfield (Crutchfield), offered
general testimony about what she routinely observed as an employee working in the department,
but had no direct personal knowledge of any conversations or other communications with James
or other department managers in which the flexible scheduling practice, as opposed to modified
schedules pursuant to FMLA requirements, was discussed. The following passage from
Crutchfield’s direct examination is typical:
4

Q 	You said you started with the DA’s office in 2006?
A 	Correct.
Q 	Did that practice exist in 2006?
A 	As far as I know.
(R.T., 18:13-16.)
In her capacity as a department steward, Crutchfield testified that approval of a modified
schedule went up and back down the chain of command (R.T., 42:4; 43:16-23), but she offered
no testimony of any first-hand conversations that would confirm that James, Busuttil or Willett
knew, not only that employees were arriving to work late and making up the time on their
lunches, but that they were doing so because of their morning child care responsibilities. When
asked how she was aware of the existence of the practice outside the restitution unit where
Crutchfield worked, Crutchfield similarly testified:
As an employee of the office, just being aware that some
employees would come in and work at 8:30. They would be
working through lunch. Most of the time, it was just that
allowance, like you would just notice that someone was not
coming in until 8:30, and there didn't seem to be a problem
with it.
(R.T., 19:25-20:2, see also 23:17-27 and 41:6-13.)
SEIU’s exceptions and supporting brief argue that “[t]he ultimate purpose as to why
employees arrived late to work is irrelevant,” since, regardless of the reason, management knew
the practice was widespread and permitted it to continue. However, as the ALJ observed, the
reason management approved a modified schedule is relevant to whether the County’s managers
knew that employees were late for work because of their morning child care responsibilities as
opposed to FMLA-mandated reasons.
5

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Because we agree with the ALJ that SEIU has not shown that the County knew of and
condoned a practice of permitting employees who arrived late to work because of child care
responsibilities to make up time during their lunch breaks, we need not and do not adopt her
alternative finding that the parties’ MOU authorized the County to act unilaterally to change
employee hours.
2. 	The ALJ’s Credibility Determinations
SEIU also excepts to the ALJ’s credibility determinations as failing to identify the
specific information relied on and as unsupported by the record as a whole. We disagree.
The Administrative Procedures Act provides that if the factual basis for an agency decision
includes a determination based substantially on the credibility of a witness, the decision shall
identify any specific evidence of the observed demeanor, manner, or attitude of the witness
that supports the determination. (Gov. Code, § 11425.50, subd. (b).) 	However, SEIU’s
exceptions and supporting brief mischaracterize the specific factual issue in dispute for which
the ALJ made credibility determinations. The disputed issue was not whether, over the course
of several years, numerous clerical employees arrived to work up to 30 minutes late and then
made up the time during their lunch breaks. Rather, the issue in dispute was whether
management knew and approved or condoned this practice to accommodate employees’
morning child care responsibilities as opposed to FMLA-mandated reasons.
3
Government Code section 11425.10, which incorporates by reference section 11425.50,
sets forth the mandatory minimum requirements for administrative adjudicative proceedings in
California. While administrative agencies may opt in or out of other portions of the
Administrative Procedure Act, the Administrative Adjudication Bill of Rights set forth in
section 11425.10 is mandatory for all agency adjudicative proceedings, including PERB unfair
practice proceedings. (City of Torrance (2009) PERB Decision No. 2004, pp. 5-6.)
3
6

Isordia estimated that from approximately 2008 until Isordia’s position was eliminated in
2012, as many as ten of the District Attorney’s approximately 35 clerical employees were on a
modified schedule for the reasons alleged in the complaint. (R.T., 113:10-17.) The County’s
answer to the complaint admitted as much and Busuttil also admitted that he knew some
clerical employees were having trouble getting to work at the scheduled start time of 8:00 a.m.
Busuttil and James denied knowing or consenting to this practice. (R.T., 55:5, 14-15, 98:28,
114:7-9, 133:22-134:15.) Busuttil testified that, until 2012, when Isordia’s position was
eliminated and two other clerical employees took over her lead duties, he was unaware of any
“side agreements” that permitted clerical employees to come to work after 8:00 a.m. because
they needed to drop off their children at school and then to allow them to make up the missed
time during their lunch breaks. (R.T., 98:3-17; 105:5-6.)
Thus, the ALJ made credibility determinations to resolve conflicting evidence not about
whether the practice existed or was widespread, but whether management knew about and
condoned it. On this issue, we agree with the ALJ’s credibility determinations and her
reasoning. For the most part, Isordia’s testimony that James had approved employee requests
for modified schedules was based on hearsay evidence. Isordia testified that when employees
asked for a modified schedule to accommodate their morning child care responsibilities, she
instructed them to speak with James, but Isordia was apparently not herself a party to these
discussions and James denied having approved modified schedules for these employees.
(R.T., 133:22-134:15.) In the one instance in which, according to Isordia, James called Isordia
and said that she had approved a modified schedule for Delores Prisock, the ALJ correctly
observed that Isordia’s testimony was typically imprecise, particularly about whether an
7

employee’s schedule was modified for FMLA or other reasons, and James’s testimony was
more consistent and definite. (R.T., 120:4-5.)
In addition, the record as a whole supports this credibility determination. Periodically,
James sent e-mails in which she reminded the clerical staff of the 8:00 a.m. start time and the
department’s expectation that employees would arrive to work on time. If, as Isordia testified,
nearly one-third of the staff was on a modified schedule with the knowledge and consent of
management, it seems unlikely that James would send such blanket reminders without some
acknowledgement of the widespread exception. Accordingly, we find no error in the ALJ’s
decision to credit James’s testimony over that of Isordia where the two conflicted.
3. 	Whether SEIU Established that the County Failed to Provide Information
The exclusive representative is entitled to all information that is necessary and relevant to
discharge its duty of representation. (Stockton Unified School District (1980) PERB Decision
No. 143 (Stockton), p. 13; NLRB v. Truitt Mfg. Co. (1956) 351 U.S. 149, 152-153.) PERB uses a
liberal, discovery-type standard, similar to that used by the courts, to determine the relevance of an
information request. (Regents of the University of California (Davis) (2010) PERB Decision
No. 2101-H, p. 32; Trustees of the California State University (1987) PERB Decision No. 613-H,
adopting proposed dec. at p. 13; NLRB v. Acme Industrial Co. (1967) 385 U.S. 432, 438, fn. 6.)
Information pertaining to unit employees’ wages, hours, or working conditions is “so
intrinsic to the core of the employer-employee relationship that it is considered presumptively
relevant and must be disclosed unless the employer can establish that the information is plainly
irrelevant or can provide adequate reasons why it cannot furnish the information.” (Stockton,
supra, PERB Decision No. 143, p. 13; Chula Vista City School District (1990) PERB Decision
No. 834, p. 53; Teleprompter Corp. v. NLRB (1st Cir. 1977) 570 F.2d 4, 8; State of California
8

(Departments of Personnel Administration and Transportation) (1997) PERB Decision
No. 1227-S, p. 6.)
As with other kinds of allegations, to prevail on a refusal to provide information
allegation, the charging party has the burden of proving the material facts by a preponderance
of the evidence. (PERB Reg. 32178.)
The record establishes that, on April 6, 2012, Field Representative William R. Petrone
(Petrone) made a written request for “[a] copy of all policies and procedures that are currently
being utilized by the District Attorney office in respect to the day to day operations of the
department.” Petrone’s correspondence explained that SEIU was requesting this information “in
consideration of the fact that many of our represented members in your department have
complained to the Union that policies, changes in policies, working procedures, etc, are given
verbally and not provided to the employees in writing.” (ChargingParty Ex. 3.) To the extent the
information requested by SEIU— policies and procedures governing the day-to-day operations
of the District Attorney’s office — pertains immediately to the wages, hours and working
conditions of the department’s clerical employees, or is necessary to monitor and administer a
collective bargaining agreement, or to investigate a potential grievance arising from employee
complaints, it is presumptively relevant. (City of Burbank (2008) PERB Decision No. 1988-M,
pp. 4, 14-15; Town of Paradise (2007) PERB Decision No. 1906-M, p. 5; State of California
(Department of Veterans Affairs) (2004) PERB Decision No. 1686-S, p. 2.) Absent a valid
defense, an employer’s refusal to provide such information upon request is a per se violation of
the duty to meet and confer in good faith. (City of Burbank, supra, PERB Decision No. 1988-M,
p. 8.)
9

SEIU argues that because James admitted on cross-examination that she never searched
for any written policies responsive to SEIU’s request for written workplace policies, SEIU met
its burden to establish that the County failed or refused to provide necessary and relevant
information. However, because t here is no evidence whether the County provided the requested
information, SEIU has not established by a preponderance of the evidence that the County failed
to provide necessary and relevant information.
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-804-M are
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Winslow and Gregersen joined in this Decision.
10

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1021,
Charging Party,
v.
COUNTY OF SAN JOAQUIN,
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-804-M
PROPOSED DECISION
(06/18/2014)
Appearances: Weinberg, Roger & Rosenfeld by Matthew J. Gauger, Attorney, for Service
Employees International Union, Local 1021; Kimberly D. Johnson, Deputy County Counsel,
for County of San Joaquin.
Before Robin W. Wesley, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges the employer unilaterally eliminated a flexible schedule
practice that allowed employees to arrive late to work so they could drop their children at
school and make up the time by working through their lunch break. The union also alleges the
employer failed to provide necessary and relevant information. The employer denies
committing any unfair practices.
On August 29, 2012, the Service Employees International Union, Local 1021 (SEIU)
filed an unfair practice charge against the County of San Joaquin (County). SEIU filed an
amended charge on December 14, 2012. The County filed position statements in response to
the original and the amended charge.
On January 18, 2013, the Office of the General Counsel of the Public Employment
Relations Board (PERB or Board) issued a complaint that alleged the County unilaterally
eliminated the flexible schedule policy without providing notice and an opportunity to meet

________________________
and confer. This conduct is alleged to have violated the Meyers-Milias-Brown Act (MMBA)1
sections 3503, 3505, 3506, 3506.5(a), (b), and (c). The County is thereby alleged to have
committed an unfair practice under MMBA section 3509(b) and PERB Regulation 	32603(a),
(b), and (c).
2
On February 6, 2013, the County filed an answer to the complaint, admitting that before
April 12, 2012, some employees arrived late to work after dropping their children at school and
shortened their lunch breaks to make up time, but denying that this arrangement was done with
the consent or knowledge of the County and did not constitute its policy or was permitted. The
County denied other substantive allegations and asserted affirmative defenses.
The parties participated in a settlement conference on March 12, 2013, but the matter
was not resolved.
A formal hearing was held on May 21, 2013. At the end of the hearing, SEIU moved to
amend the complaint to allege that the County failed to provide necessary and relevant
information. Without objection from the County, the motion to amend was granted. The case
was submitted for decision following receipt of post-hearing briefs on July 22, 2013.
FINDINGS OF FACT
SEIU is an exclusive representative within the meaning of PERB Regulation 32016(b).
The County is a public agency within the meaning of Government Code section 3501(c) and
PERB Regulation 32016(a).
The MMBA is codified at Government Code section 3500 et seq. All statutory
references are to the Government Code, unless otherwise stated.
1
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
2

SEIU represents the Office and Office Technical bargaining unit, which includes
clerical employees in the District Attorney’s Office. SEIU and the County are parties to a
Memorandum of Understanding (MOU) effective December 5, 2011 through June 30, 2013.
MOU section 5.2 states:
5.2. Working Hours
In accordance with the Board of Supervisors’ policy, a
department head may change the working hours of individual
employees to accommodate functional needs of the department so
long as no change is made in the regular hours of the department.
MOU section 20 states:
20. SUPERSESSION AND MODIFICATION CLAUSE
Except as may hereinafter be agreed to in writing, and except for
the San Joaquin County Employer-Employee Relations Policy,
this Memorandum of Understanding contains the sole and entire
agreement between the parties. It supersedes any and all other
previous Memoranda of Understanding between the parties and
incorporates by reference all such previous memoranda between
the designated representatives of members of this representation
unit and the County and also supersedes and incorporates by
reference any and all Resolutions and Board orders adopted by
the San Joaquin County Board of Supervisors which were
adopted to implement any Memorandum of Understanding
between the designated representatives of members of this
representation unit and the County; other terms and conditions of
employment not specified herein shall remain as they are for the
term of this Memorandum of Understanding except that where
the language of such Memoranda, Resolutions, Board Orders or
such other terms and conditions of employment not specified
herein conflicts with, or is different from, the language contained
in this Memorandum, this Memorandum shall prevail and apply.
The parties acknowledge and agree that neither of them has made
any representations with respect to the subject matter of this
agreement or any representations including the execution and
delivery hereof except such representations as are specifically set
forth herein. No waiver or modification of this agreement or any
covenant, condition or limitation herein contained shall be valid
unless in writing and duly executed by the parties hereto; no
officer, employee or agent of the County has any authority to
3

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waive or modify this agreement or any covenant, condition or
limitation herein contained without the express approval of the
San Joaquin County Board of Supervisors or its designee.
(Emphasis added.)
County ordinance 2-3000 states:
County officers shall keep their offices open for the transaction of
business continuously from 8:00 a.m. until 5:00 p.m. each day of
the week, except Saturday, Sunday and regular holidays, unless
otherwise prescribed by resolution of the Board of Supervisors.
San Joaquin County Work Rules state, in part:
4. Work Hours
Employees shall begin work on time and devote their assigned
work hours to carrying out their jobs. Rest breaks, meals and
time off shall be taken at times authorized by the employee’s
department head (or designee).
Sylvia Isordia (Isordia) was first employed by the District Attorney’s office in 1984 as
a Legal Technician II. Isordia promoted to a Senior Legal Technician, and between 2001 and
2012 she supervised a unit of clerical employees located on the second floor of the District
Attorney’s office. Isordia’s clerical supervisor position is in the bargaining unit.
Millie James (James), employed by the District Attorney’s office for 29 years, is the
Administrative Assistant to District Attorney James Willett (Willett). Her office is located on
the fifth floor. Clerical supervisors report to James.
Isordia testified that since at least 2008, there were clerical employees who came to
work a few minutes late and made up time by taking shorter lunch breaks. At one time, Isordia
supervised 35 employees.3 She estimated that about ten of those employees were coming to
There are clerical employees assigned to other units. Since fiscal year 2011-2012, the
number of clerical positions has been reduced to 28 full-time positions for the entire District
Attorney’s office.
3
4

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work late, some because they dropped their children at school before work and others for
medical reasons. 4
As a supervisor, Isordia was responsible for making sure that work got done and that
clerical support was available to assist the attorneys. Isordia also had the authority to approve
time off, although she was not authorized to approve modified schedules. Isordia stated that
when employees approached her requesting a modified schedule she told them they needed to
talk to James.
James testified that since she started working for the District Attorney’s office, the
work hours for clerical employees have been 8:00 a.m. to 5:00 p.m. Since at least 2008, James
was aware that there were times when tardiness was an issue in the clerical unit. During staff
meetings, James received complaints that some clerical employees were tardy, socializing too
much, or were taking long lunches.
Periodically, James asked Isordia to talk to employees about their tardiness, remind
them of the work hours, and make sure employees were engaging in professional behavior.
For example, on July 2, 2008, James wrote in an email to Isordia:
I have been receiving complaints from attorneys regarding the
clerical staff. Here they are:
No one comes to work on time. Between 8:00 am – 8:30 am they
say it’s a ghost town. Staff is sitting around visiting a lot, even
when supervisors or Chiefs are around, it doesn’t seem to matter.
People are taking long lunches. Work is not getting completed as
should. [sic.] . . . Please get the word out that employees need
to be working 8:00 am – 5:00 PM, with two breaks, and a one
hour lunch.
Isordia herself had an approved modified schedule under the Family and Medical
Leave Act (FMLA) [29 USCS §§ 2601 et seq.], in which she arrived at work up to one hour
late. FMLA modified schedules are not at issue in this case.
4
5

Isordia confirmed that some employees arrived late, while others arrived on time.
Isordia stated that she spoke to James after receiving this email to remind her that some people
had a modified schedule.
On February 1, 2011, after observing that clerical employees were again excessively
tardy, Isordia sent an email to the clerical employees in her unit, stating, in part:
A reminder to all
Your work hours are from 8 to 5. Breaks are 15 minutes in the
morning and afternoon not to be taken before 9:30 am and 2 pm.
[¶…¶]
**If you are late I expect you to turn in a time off slip marked
vacation that same morning and also indicate on the sign in sheet
your time. The same is for the lunch hour. Tardiness can not
[sic] be made up at lunch time.
Isordia testified that around this time she, “probably reminded [James] of the people
that were on a modified schedule.”
Isordia testified that James approved flexible schedules for about ten clerical
employees. While there are documents approving FMLA modified schedules, Isordia
acknowledged there is no documentation of James’s approval of flexible schedules for clerical
employees. Isordia stated that James verbally told her of the approvals.
Melanie Crutchfield (Crutchfield) works as a paralegal in the District Attorney’s office.
She was elected as a job steward in February 2012. Crutchfield testified she was aware of the
flexible schedule practice because she observed that some clerical employees came to work
late and worked through lunch. She stated management would know about the practice
because they could make the same observation.
6

James denied approving or knowing about flexible schedules that allowed employees to
arrive late to drop their children at school and make up the time during lunch. She testified
that Isordia told her that employees were arriving tardy to work. James also stated that she was
aware that some employees, like Isordia and Kelly Foreman, had modified schedules under the
FMLA.
In or around early 2012, Isordia was laid off and bumped to the Legal Technician II
classification. Mary Borges (Borges) and Terri Booth were assigned as the lead workers for
the clerical employees. After Borges became lead worker, she informed James that some
employees had been granted special arrangements by Isordia that allowed them to arrive late
after dropping their children at school and then make up the time during their lunch break.
Assistant District Attorney Edward Busuttil (Busuttil) learned of the special
arrangements from James. Prior to this time, Busuttil was aware that some employees had
trouble getting to work on time, but he did not know that there were side agreements granting
some employees flexible schedules to get their children to school.
On March 28, 2012, during a staff meeting for clerical employees, Borges informed
employees that the work hours were 8:00 a.m. to 5:00 p.m., and that no allowances would be
made. At this time, three employees regularly arrived at work after 8:00 a.m. Borges told
them they had two weeks to make arrangements to be at work on time. A new clerical rotation
schedule was also discussed at the staff meeting.
On March 29, 2012, SEIU Field Representative William Petrone (Petrone) submitted a
demand to bargain over the clerical rotation schedule. On April 6, Petrone demanded to
bargain “Working hours of employees represented by SEIU Local 1021.” In a separate letter
to Willett, dated April 6, Petrone requested, “A copy of all policies and procedures that are
7

currently being utilized by the District Attorney [sic.] office in respect to the day to day
operations of the department.”
In late April or early May 2012, Petrone and Crutchfield met with Willett, Busuttil, and
James to discuss the change in working hours. Petrone demanded that the flexible schedule
practice be restored. Willett said the work hours were 8:00 a.m. to 5:00 p.m., and the
department needed employees to arrive on time to accommodate custodies and to be available
to assist attorneys. Willett told Petrone he would consider a proposal for a different work time
schedule. SEIU did not submit a proposal.
At the time of the hearing, four or five clerical employees regularly came to work after
8:00 a.m., including Isordia under her FLMA claim. These employees are not allowed to make
up time by working through their lunch break and must use leave credits to cover their late
arrival.
ISSUES
1. Did the County unilaterally eliminate a flexible schedule practice without providing
notice and an opportunity to meet and confer?
2. Did the County fail or refuse to provide necessary and relevant information?
CONCLUSIONS OF LAW
SEIU contends a practice was established over many years that grants employees a
flexible schedule that allows them to arrive late after dropping their children at school and
make up time by working during the lunch break. SEIU asserts the County was aware of the
practice and approved flexible schedules. SEIU claims that MOU section 20 precludes
changes in past practices and that the County changed the flexible schedule practice without
providing notice and an opportunity to bargain.
8

The County asserts there was no established practice because it was not aware of any
such practice and it did not approve flexible schedules. Further, even if there was an
established practice, MOU section 5.2 allows the County to “change the working hours of
individual employees.”
MMBA section 3505 requires a public agency and a recognized employee organization
to “meet and confer in good faith regarding wages, hours, and other terms and conditions of
employment.” In determining whether a party has violated MMBA section 3505 and PERB
Regulation 32603(c), PERB utilizes either the “per se” or “totality of the conduct” test,
depending on the specific conduct involved and the effect of such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.)
Unilateral changes are considered “per se” violations if certain criteria are met. Those
criteria are: (1) the employer breached or altered the parties’ written agreement or its own
established past practice; (2) such action was taken without giving the other party notice or an
opportunity to bargain over the change; (3) the change was not merely an isolated breach of the
contract, but amounts to a change in policy (i.e., it has a generalized effect or continuing
impact upon bargaining unit members’ terms and conditions of employment); and (4) the
change in policy concerns a matter within the scope of representation. (San Joaquin County
Employees Association v. City of Stockton (1984) 161 Cal.App.3d 813; Vernon Fire Fighters v.
City of Vernon (1980) 107 Cal.App.3d 802; Grant Joint Union High School District (1982)
PERB Decision No. 196; Walnut Valley Unified School District (1981) PERB Decision
No. 160; County of Santa Clara (2013) PERB Decision No. 2321-M.)
It is undisputed the County did not give SEIU notice and an opportunity to bargain over
the change in some clerical employees’ working hours. The change also had a continuing
9

impact on bargaining unit employees’ working hours because employees were no longer
allowed to arrive late and make up work time during lunch. Further, hours of work is
expressly identified as a negotiable subject within the scope of representation. (MMBA §3504;
Los Angeles Community College District (1982) PERB Decision No. 252.)
SEIU contends there was an established flexible schedule practice. An established
policy may be embodied in the terms of a collective bargaining agreement or, where a contract is
silent or ambiguous, it may be determined from past practice or bargaining history. (Grant Joint
Union High School District, supra, PERB Decision No. 196; Rio Hondo Community College
District (1982) PERB Decision No. 279.) For a past practice to be binding it must be
(1) unequivocal, (2) clearly enunciated and acted upon, and (3) readily ascertainable over a
reasonable period of time as a fixed and established practice accepted by both parties. (County
of Sonoma (2012) PERB Decision No. 2242-M; Desert Sands Unified School District (2010)
PERB Decision No. 2092; Hacienda La Puente Unified School District (1997) PERB Decision
No. 1186; State of California (Department of Personnel Administration) (2004) PERB
Decision No. 1601-S; Riverside Sheriff’s Association v. County of Riverside (2003) 106
Cal.App.4th 1285, 1291.) PERB has also described an enforceable past practice as one that is
“regular and consistent” or “historic and accepted.” (Hacienda La Puente Unified School
District, supra, PERB Decision No. 1186.) Parties need not formally adopt a practice for it to
be binding. (West Covina Unified School District (1993) PERB Decision No. 973.)
The Board found an established practice that was known to the employer in San Jacinto
Unified School District (1994) PERB Decision No. 1078. There, the shift hours for
maintenance workers were 7:00 a.m. to 3:30 p.m. During football season, maintenance
workers could volunteer to work football games as overtime assignments beyond their regular
10

work day. The district changed the maintenance workers’ hours on game days to noon to
9:00 p.m., removed the voluntary nature of the assignment, and eliminated the opportunity for
overtime. Similarly, in West Covina Unified School District, supra, PERB Decision No. 973,
when employees promoted into lead positions, they were expressly authorized to drive work
vehicles to and from home. The Board found the district unilaterally changed a well-known
established practice when it stopped employees from taking the vehicles home.
In County of Sonoma (2008) PERB Decision No. 1962-M, the Board found that the
union failed to demonstrate an established practice of the employer obtaining a medical exam
by a county physician before putting an employee on unpaid medical leave. The Board held
that the testimony of the union witness claiming that the procedure was always followed was
not credited over that of the county witness. In Riverside Sheriff’s Association v. County of
Riverside, supra, 106 Cal.App.4th 1285, the court denied the union’s claim that the county
changed its practice of granting salary step increases to employees place on disability leave.
The court held that while some employees were granted step increases while on leave, the
union failed to establish that granting the step increase was a uniformly applied practice.
In the present case, Crutchfield testified that she observed clerical employees arriving
late and working during lunch. Crutchfield’s observation is insufficient to demonstrate an
established practice. Employees could have been tardy or had approved leave for
appointments. Further, there is no evidence in the record about the lunch break schedule. It
cannot be determined whether employees were working thorough their lunch break to make up
time simply because they were at their desks in the middle of the day.
The record contains conflicting testimony concerning whether James knew about and
approved flexible schedules for ten clerical employees. Isordia testified that she had no
11

authority to approve flexible schedules, instead she sent employees seeking such schedules to
James. Isordia testified that James told her of the approved flexible schedules.
James acknowledged that at times employees were tardy to work. She repeatedly
directed Isordia to remind employees of the work and break schedules. James denied
approving or knowing there were flexible schedule arrangements that allowed employees to
arrive late to work.
The Board has held that credibility determinations may be made based on factors
including demeanor, selective memory on cross-examination, inherently unbelievable
testimony, bias, prior consistent or inconsistent statements, and the capacity to perceive,
recollect, or communicate, among other factors. (Evid. Code, §780; Palo Verde Unified
School District (2013) PERB Decision No. 2337; Regents of the University of California
(1984) PERB Decision No. 449-H; Santa Clara Unified School District (1985) PERB Decision
No. 500.)
Isordia’s testimony was imprecise and uncertain in comparison with James’s testimony.
Isordia testified about “modified” schedules that at times included both flexible schedules to
drop children at school and alternate schedules for medical reasons. Isordia testified she
“probably” reminded James employees were on a modified schedule, making it unclear which
type of schedule she spoke to James about. Further, although stating that James told her that
flexible schedules had been approved, Isordia acknowledged there was no documentation to
support the approvals as there was for FMLA modified schedules.
James’s answers were certain. James knew tardiness was an issue and repeatedly asked
Isordia to remind employees that work hours were 8:00 a.m. to 5:00 p.m. James’s testimony
12

was unequivocal that she did not know of or approve flexible schedules. James’s testimony is
credited over Isordia’s testimony.
The burden is on SEIU to demonstrate that both parties knew there was a long-standing
practice in which the County would grant employees flexible schedules that allowed them to
arrive late to work and make up the time during their lunch break. (San Francisco Unified
School District (2009) PERB Decision No. 2057.) James did not know of the practice and did
not approve flexible schedules. While there is documentation approving FMLA modified
schedules, there are no writings, documents, or emails demonstrating that flexible schedules
had been approved. The evidence does not demonstrate that the County was aware of and had
utilized such a practice to approve flexible schedules. Thus, a flexible schedule practice was
not “readily ascertainable over a reasonable period of time as a fixed and established practice
accepted by both parties.” Accordingly, SEIU has failed to establish by a preponderance of the
evidence that there was an established flexible schedule practice that allowed employees to
arrive late to work after dropping their children at school and make up time by working
through their lunch break.
Even assuming there was an established practice that was known to and accepted by
both parties, the County asserts the MOU allows the County to change working hours. MOU
section 5.2, states:
In accordance with the Board of Supervisors’ policy, a
department head may change the working hours of individual
employees to accommodate functional needs of the department so
long as no change is made in the regular hours of the department.
Where contractual language is clear and unambiguous, there is no need to go beyond
the plain language of the contract to ascertain its meaning. (City of Riverside (2009) PERB
Decision No. 2027-M; Marysville Joint Unified School District (1983) PERB Decision
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No. 314.) A waiver of the right to negotiate over a particular subject must be clear and
unmistakable, and must indicate an intentional relinquishment of the right to bargain. (County
of Santa Clara (2013) PERB Decision No. 2321-M; Amador Valley Joint Union High School
District (1978) PERB Decision No. 74; California State Employees’ Assn. v. Public
Employment Relations Bd. (1996) 51 Cal.App.4th 923, 937-938.) Thus, “a contract provision
which cedes to the employer unilateral control over a particular, clearly identified matter will
operate as a waiver of the exclusive representative’s bargaining right as to that matter.”
(Grossmont Union High School District (1983) PERB Decision No. 313.) A past practice, even
one of long duration, does not trump a clear, established policy. (Marysville Joint Unified
School District, supra, PERB Decision No. 314.)
MOU section 5.2 provides that the County may change individual employee’s working
hours to accommodate the functional needs of the department. The language is clear and
unambiguous on its face, and demonstrates that SEIU waived its right to bargain over the
County’s decision to change individual employee’s working hours. In 2012, after Borges
became the lead worker, the County learned that three employees regularly arrived late. The
employees were immediately advised that the work hours are 8:00 a.m. to 5:00 p.m. If there was
a valid past practice that allowed the employees to arrive after 8:00 a.m., the MOU authorized
the County to change their hours to report to work at 8:00 a.m. Under Section 5.2, SEIU ceded
unilateral control over changes to employee work hours to the County. Thus, the County did not
breach its duty to meet and confer with SEIU over the decision to change employee work hours.
Information Request
SEIU contends the County failed or refused to provide necessary and relevant
information regarding policies and procedures utilized by the District Attorney’s office.
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________________________
A recognized employee organization is entitled to all information that is “necessary and
relevant” to the discharge of its duty to represent bargaining unit employees. (Stockton Unified
School District, supra, PERB Decision No. 143.) Information pertaining immediately to a
mandatory subject of bargaining is presumptively relevant. (Ibid.) An employer’s failure or
refusal to provide such information violates the duty to bargain in good faith unless the
employer can supply adequate reasons why it cannot provide the information. (Ibid.; Town of
Paradise (2007) PERB Decision No. 1906-M; State of California (Departments of Personnel
Administration and Transportation) (1997) PERB Decision No. 1227-S; County of Sierra
(2007) PERB Decision No. 1915-M.)
At the conclusion of the hearing, SEIU moved to amend the complaint to allege the
County failed or refused to provide necessary and relevant information regarding policies and
procedures utilized by the District Attorney’s office. 	The only evidence in the record
regarding this allegation is that SEIU requested the information. There is no evidence whether
the County did or did not provide the requested information. SEIU has not established by a
preponderance of the evidence that the County failed to provide necessary and relevant
information. (PERB Regulation 32178; State of California (Board of Equalization) (2012)
PERB Decision No. 2237-S.) Therefore, this allegation is also dismissed.
5
PROPOSED ORDER
Based on 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. SA-CE-804-M,
Service Employees International Union Local 1021 v. County of San Joaquin, are hereby
DISMISSED.
5 SEIU did not address this allegation in its post-hearing brief.
15

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
E-FILE: PERBe-file.Appeals@perb.ca.gov
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
or received by electronic mail before the close of business, which meets the requirements of
PERB Regulation 32135(d), provided the filing party also places the original, together with the
required number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, §
32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090, 32091 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).)
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