City of Montebello (PERB 2491M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MONTEBELLO CITY EMPLOYEES
ASSOCIATION,
Charging Party,
v.
CITY OF MONTEBELLO,
Respondent.
Case No. LA-CE-904-M
PERB Decision No. 2491-M
June 30, 2016
Appearances: Andrew T. Lotrich, Staff Representative, for Montebello City Employees
Association; Liebert Cassidy Whitmore by Christina C. Rentz, Attorney, for City of
Montebello.
Before Winslow, Banks and Gregersen, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions by the Montebello City Employees Association (Association) to the
proposed decision (attached) of a PERB administrative law judge (ALJ). The complaint
alleged that in or around October 2013, the City of Montebello (City) changed its policy by
requiring part-time unclassified Clerical Assistants1 to perform the duties of the Administrative
As discussed in the proposed decision, at page 3, following the Association’s unfair
practice charge, PERB’s complaint described the classification as “Administrative Assistant”
rather than Clerical Assistant and the Association made no motion to amend the complaint.
However, both parties understood that the complaint allegations and the issues actually
litigated involved Clerical Assistants represented by the Association and, accordingly, the ALJ
exercised his authority to amend the complaint sua sponte to replace all references to
“Administrative Assistant” with “Clerical Assistant.” Neither party has excepted to this
amendment to the complaint and, for the reasons discussed below, we conclude that the ALJ
acted properly, notwithstanding our decision in City of Inglewood (2015) PERB Decision
No. 2424-M. As discussed at pages 14-16 of the proposed decision, the ALJ also considered
an unalleged theory of liability, namely whether the City also unilaterally changed its policy by
requiring Clerical Assistants to perform the duties of the Clerk Typist position.
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Secretary classification, and that the City made this change in policy without affording the
Association notice or opportunity to meet and confer over the decision and/or its effects on
negotiable matters, in violation of the Meyers-Milias-Brown Act (MMBA) 	and PERB
regulations.
2
At the hearing, the Association also put on evidence that the City had changed its
policy some years earlier by requiring Clerical Assistants to perform the duties of Clerk
Typists. Although not alleged in the complaint, the ALJ considered this allegation after
determining that each of the requirements of PERB’s unalleged violations doctrine had been
satisfied. The ALJ also granted the City leave to amend its answer to assert a statute of
limitations defense to address this newly-added theory.
3
On the merits, the ALJ found that the Association had failed to prove all of the
elements of PERB’s test for a unilateral change, whether as alleged in the complaint or for the
unalleged theory of liability concerning the separate Clerk Typist classification. Specifically,
the ALJ found the evidence insufficient to establish that any change in policy had occurred.
Alternatively, he found that any change that had occurred had been, at most, an isolated breach
or departure from the status quo with no generalized effect or continuing impact on bargaining
unit members’ terms and conditions of employment. The Association excepts to these findings
and to the ALJ’s dismissal of the complaint and underlying unfair practice charge for failure to
prove each of the elements of a unilateral change. The City takes no exception to the proposed
decision and urges the Board to adopt it.
The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
2
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3
2

The Board has reviewed the Association’s exceptions and supporting brief, the City’s
response, the proposed decision and the entire record in light of applicable law. Based on this
review, we conclude that the ALJ’s findings of fact are adequately supported by the record and
that his conclusions of law were well-reasoned and in accordance with applicable law. We
therefore adopt the proposed decision as the decision of the Board itself subject to the discussion
below of issues raised by the Association’s exceptions.
FACTUAL BACKGROUND
The facts of this case involve Selene Garcia (Garcia) and Desiree Sicairos (Sicairos)
who worked as Clerical Assistants for the City for approximately ten and seven years,
respectively, until both left City employment in 2014. At the hearing, the Association
presented evidence that Garcia and Sicairos had been assigned and had performed certain
duties, which were not specifically listed in the Clerical Assistant job description and which,
according to the Association, were more appropriate to either the Clerk Typist or
Administrative Secretary classifications.
The job descriptions for the Clerical Assistant, Clerk Typist and Administrative
Secretary include considerable overlap in the duties of these three positions. The salient
differences concern the level of difficulty of the duties performed and thus the nature and
degree of supervision required. The Clerical Assistant works under direct supervision on
“average to difficult” clerical, accounting and/or technical tasks, while the Clerk Typist works
under general supervision on “difficult, technical” office support tasks. The Administrative
Secretary also performs “difficult” secretarial, office and administrative support tasks, but
these are also described as “confidential” and, unlike the Clerical Assistant or Clerk Typist, the
Administrative Secretary position reports directly to a department head or the City
Administrator.
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According to her undisputed testimony, Garcia performed most of her job duties from
the beginning until the end of her employment. These duties included tasks associated with the
Clerk Typist position and Administrative Secretary position. As the result of a reorganization,
in 2010 Garcia was transferred from her position in the Street Maintenance division of the
Municipal Services Department to the Golf Course, where she reported to the Assistant
Director of Parks and Recreation. At that time, Garcia also began collecting money, issuing
receipts and preparing agendas. While the Clerical Assistant job description indicates that the
incumbent “may collect monies and issue receipts,” it makes no mention of preparing
agendas. 	In fact, the more difficult duties assigned to a Clerk Typist indicate that the
incumbent for that position “may assist in the preparation of agendas for distribution.”
(Emphasis added.) After her reassignment to the Golf Course, Garcia also began taking
minutes which, in one form or another, is listed as a function of all three positions.
4
Sicairos similarly testified that she performed most of her job duties from the beginning
of her employment with the City in 2007 until her retirement in 2014. In 2010, Sicairos began
working in the Parks and Recreation Department under the supervision of the Municipal
Services Department head, a reporting relationship indicative of an Administrative Secretary
and Sicairos testified that she performed various duties associated the Administrative Secretary
position in addition to other duties associated with Clerk Typist position. In 2012, Sicairos
again relocated, this time to City Hall, where she reported to the Director of Public Works.
Although the proposed decision, at page 6, described collecting money and issuing
receipts as Clerk Typist duties, these duties are also expressly included in the Clerical
Assistant job description, as summarized at page 4 of the proposed decision. To the extent this
characterization was an oversight by the ALJ, it further bolsters his finding that no change in
policy occurred and/or that only minimal out-of-class work was ever assigned to Garcia or
Sicairos.
4
4

In October 2013, Sicairos and an Association representative met with Sicairo’s boss to
request that she be reclassified because she was performing the duties of the Administrative
Secretary position for a department head. After consulting with the City Manager, Sicairos’
boss denied this request and the Association filed a grievance.
In November 2013, the City denied the Association’s grievance, asserting that Sicairos
had never been required to perform Administrative Secretary duties and that the City did not
have money budgeted for an additional Administrative Secretary position. However, the City
also moved Sicairos back to her previous position in Parks and Recreation and replaced her
with an Administrative Secretary. Because the Parks and Recreation director position was
vacant, Sicairos reported to the assistant director until her retirement in 2014.
The Association appealed the denial of the Sicairos grievance to the Civil Service
Commission and, shortly thereafter, the Commission denied the appeal as well, asserting that
as an unclassified, limited hourly employee, Sicairos lacked standing to have a grievance
processed by the Civil Service Commission. In January 2014, the Association appealed again
to the Civil Service Commission, after adding Garcia to the grievance. The result of that
appeal was not part of the record.
THE PROPOSED DECISION
The ALJ expressed doubt that the City’s conduct constituted a change in policy, given
that the only affected employees to testify admitted that they had performed most of the
ostensibly out-of-class duties since the beginning of their employment or, for a limited number
of duties in Sicairos’ case, since 2010. (Proposed dec., p. 13.) Additionally, the ALJ found
that some of the duties at issue, while not specifically enumerated in the Clerical Assistant job
description, nonetheless overlapped with or were reasonably related to duties included in the
Clerical Assistant job description and were therefore not out-of-class duties.
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Alternatively, the ALJ concluded that, even assuming a change in policy had occurred
through the assignment of out-of-class duties to Garcia and/or Sicairos, the Association had not
established that such change was more than an isolated breach of the parties’ Memorandum of
Understanding (MOU), or that it entailed a generalized effect or continuing impact on terms
and conditions of employment. (Proposed dec., p. 13.) Although Sicairos reviewed her boss’s
calendar and reminded him of his appointments during the time she worked at City Hall, this
assignment lasted for only about two months until the issue was raised through the
Association’s grievance and Sicairos was transferred back to Parks and Recreation in
November 2013.
DISCUSSION
ALJ’s Authority to Amend the Complaint Sua Sponte to Correct an Error or Defect
Before addressing the Association’s exceptions, we take this opportunity to address the
ALJ’s sua sponte amendment to the complaint to conform to the evidence and issues presented at
hearing. As part of PERB’s broad statutory authority to investigate and remedy unfair practice
allegations, our regulations expressly recognize that a Board agent may “disregard any error or
defect in the complaint that does not substantially affect the rights of the parties” (PERB
Reg. 32640, subd. (a); see also MMBA, § 3509, subds. (a) and (b); EERA, 	§ 3541.3, subds. (g),
(i) and (n).) The Board has repeatedly held that, with adequate notice, an amendment to a
complaint that merely reflects the allegations in the original unfair practice charge or the issues
actually litigated is appropriate, even in the absence of motion to amend, because it does not
substantially affect the rights of the parties. (San Diego Unified School District (1991)
5
The Educational Employment Relations Act (EERA) is codified at section 3540,
et seq.
5
6

PERB Decision No. 885, pp. 62-63; County of Riverside (2010) PERB Decision No. 2097-M,
pp. 6-9; State of California (Department of Social Services) (2009) PERB Decision
No. 2072-S, pp. 3-4; Compton Unified School District (2003) PERB Decision No. 1518, p. 3;
Eastside Union School District (1992) PERB Decision No. 937, pp. 4-5.)
In City of Inglewood, supra, PERB Decision No. 2424-M, the Board considered whether
an ALJ, in the absence of a motion, may add to or alter the unfair practice theories identified in
the complaint at the outset of the hearing. The Board explained that, under PERB’s procedural
rules and precedent, the Office of the General Counsel is the division within PERB authorized to
issue unfair practice complaints which, in turn, determine which claims should be pursued at
hearing and the legal theories supporting those claims. (Id. at pp. 11-13; see also County of
Fresno (2010) PERB Decision No. 2125-M, p. 4, fn. 4; Barstow Unified School District (1996)
PERB Decision No. 1138a, p. 10.) City of Inglewood was thus concerned about the division of
authority within PERB and, specifically, with whether an ALJ may direct the parties to litigate
an issue not included in the complaint. It was strictly within that factual and procedural context
that the Board observed that, “[o]nce issued, an unfair practice complaint may be amended, …
only on motion of the charging party.” (Id. at p. 12.)
Indeed, City of Inglewood, supra, PERB Decision No. 2424-M, recognized that otherwise
ALJs have “considerable authority” and nothing in the decision was intended to change long-
standing practice and procedure before PERB or to diminish an ALJ’s authority to amend a
complaint sua sponte to correct or disregard errors or defects (PERB Reg. 32640, subd. (a)), to
join necessary parties (City of Inglewood, supra, at p. 7; PERB Reg. 32164), to “[i]nquire fully
into all issues and obtain a complete record upon which the decision can be rendered”; or
“[r]egulate the course and conduct of the hearing.” (PERB Reg. 32170, subds. (a), (d)); see
also City of Santa Clara (2016) PERB Decision No. 2476-M, p. 10; Palo Verde Unified School
7

District (2013) PERB Decision No. 2337, p. 34.) After a matter has been submitted, an ALJ
may also consider matters beyond the four corners of the complaint, including additional factual
allegations or theories of liability, so long as the criteria for unalleged violations have been met.
(Tahoe-Truckee Unified School District (1988) PERB Decision No. 668 (Tahoe-Truckee),
pp. 5-10; City of Inglewood, supra, at p. 14.)
In accordance with the requirements of Tahoe-Truckee and other applicable authority, we
find that the ALJ properly exercised his authority to amend the complaint to correct an error or
defect and to consider the unalleged theory of liability that the City unilaterally altered its policy
by assigning Clerk Typist duties to Clerical Assistants.
Legal Standard and the Appropriateness of PERB’s Test for Unilateral Change Allegations
To prove a unilateral change, the charging party must establish that: (1) the employer
took action to change policy; (2) the change in policy concerns a matter within the scope of
representation; (3) the action was taken without giving the exclusive representative notice or
opportunity to bargain over the change; and (4) the action had a generalized effect or
continuing impact on terms and conditions of employment. (County of Santa Clara (2013)
PERB Decision No. 2321-M, p. 13.) As discussed below, the Association’s exceptions focus
primarily on whether the ALJ erred in finding that elements (1) and (4) above were not met.
However, because it concerns a more fundamental issue of the appropriateness of the above
test, we begin with an alternative argument raised in the Association’s supporting brief, which
is that the ALJ erred by not analyzing the City’s conduct under PERB’s totality of conduct test
either in addition to, or instead of, the above test. For several reasons, we are not persuaded by
this argument.
The statutory duty to meet and confer in good faith involves both a set of procedures
for meeting and negotiating and a bona fide intention to discuss and, where possible, reach
8

agreement. (General Electric Co. (New York, N.Y.) (1964) 150 NLRB 192, 194, affd.
(2d Cir. 1969) 418 F.2d 736; Dublin Professional Fire Fighters, Local 1885 v. Valley
Community Services Dist. (197 5) 45 Cal.App.3d 116, 118; Vernon Fire Fighters v. City of
Vernon (1980) 107 Cal.App.3d 802, 823-824; Placentia Fire Fighters v. City of Placentia
(1976) 57 Cal.App.3d 9, 25.) As we explained in Fresno County In-Home Supportive Services
Public Authority (2015) PERB Decision No. 2418-M, per se violations generally involve
conduct that violates the statutory rights or procedures for bargaining. They are a failure to meet
and confer, irrespective of the offending party’s intent. By contrast, the totality of conduct test,
which is used for surface bargaining allegations, examines the respondent’s outward conduct to
determine its state of mind, i.e., whether it had a subjective intent to reconcile differences and
reach agreement when meeting and conferring. (Id. at pp. 13-14; see also Higgins, Developing
Labor Law, 6th Ed., Vol. I: Ch. 13.II.A, p. 892.) Although both are bargaining violations, they
typically rely on different kinds of evidence because they involve a failure to comply with
different components of the statutory language: a unilateral change is a failure to meet while
bargaining in bad faith is a failure to do so with the requisite state of mind. (Fresno Co. IHSS
Public Authority, supra, PERB Decision No. 2418-M, pp. 13-14)
The two theories also entail different remedies. Because the Board does not dictate the
substantive terms of collective bargaining agreements or require a party to agree to any proposal,
in surface bargaining cases it generally does not order retroactive relief, such as back pay or
damages, for the loss of economic benefits that might have been obtained had the employer
bargained in good faith. (City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 13-14; see
also Frankl v. HTH Corp. (9th Cir. 2011) 650 F.3d 1334, 1363.) By contrast, in addition to a
cease-and-desist order and posting requirement, the appropriate remedy for an employer’s
unlawful unilateral change will typically include an order to rescind the new or changed policy
9

and an award for back pay or other losses suffered by employees or the union as a result of the
unlawful conduct. (California State Employees’ Assn. v. Public Employment Relations Bd.
(1996) 51 Cal.App.4th 923, 946; City of Sacramento (2013) PERB Decision No. 2351-M,
pp. 48-51.)
In determining whether a party has violated its duty to meet and confer in good faith,
PERB utilizes both a “per se” and a “totality of the conduct” analysis, depending on the
specific conduct involved and its effect on the negotiating process. (Muroc Unified School
District (1978) PERB Decision No. 80 (Muroc), pp. 13-14; Pajaro Valley Unified School
District (1978) PERB Decision No. 51, pp. 4-5.) Under long-standing PERB and private-sector
precedent, a unilateral change to negotiable subjects is regarded as a species of per se violations
of the bargaining obligation because of its incompatibility with the bi-lateral scheme for
collective bargaining and its inherently destabilizing and detrimental effect on the bargaining
relationship, irrespective of intent. (County of Santa Clara, supra, PERB Decision No. 2321-M,
pp. 22-23; San Mateo County Community College District (1979) PERB Decision No. 94,
pp. 14-17; see also NLRB v. Katz (l962) 369 U.S. 736, 742-743.)
Admittedly, the standard verbiage used in the proposed decision and in Board decisions
too numerous to cite is potentially misleading. Before enumerating the requirements for stating a
prima facie case for a unilateral change violation, our cases say that: “Unilateral changes are
considered ‘per se’ violations if certain criteria are met.” (City of San Juan Capistrano (2012)
PERB Decision No. 2238-M, adopting dismissal letter at p. 2; Desert Sands Unified School
District (2010) PERB Decision No. 2092, p. 18) One possible interpretation of this language,
and apparently the one urged here by the Association, is that, if the enumerated criteria are not
met, then a unilateral change violation may still be found not as a per se violation but under
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PERB’s “totality of conduct” test.6 However, we are aware of no persuasive authority, PERB or
otherwise, analyzing a unilateral change allegation under the totality of circumstances test and
we can discern no logical or sound policy reason for doing so.
California Public Sector Labor Relations, Ch. 10, § 10.05[6] (Mathew Bender)
suggests that “some courts have also discussed unilateral changes in terms of indicia of bad
faith as part of an overall ‘totality of the circumstances’ evaluation.” The sole authority cited
is Stationary Engineers v. San Juan Suburban Water Dist. (1979) 90 Cal.App.3d 796
(Stationary Engineers), disapproved of on other grounds by County Sanitation Dist. No. 2 v.
Los Angeles County Employees Assn. (1985) 38 Cal.3d 564 (County Sanitation).) At issue in
that case was whether public employees, who had been discharged for going on strike, were
entitled to return to work and to damages when their reason for striking was to protest the public
employer’s bad faith in negotiations. Declining to follow federal authority, the appellate court
held that, under the MMBA, public employees have no statutory or other right to strike and thus,
no protection for striking, even if shown that the strike’s purpose was to protest their employer’s
unfair labor practices. The central holding of the case is no longer good law.7
As discussed below, our cases hold that independent, contemporaneous unfair
practices committed at or away from the bargaining table, including unilateral changes to
negotiable matters, may serve as evidence of bad faith in negotiations, i.e., in support of a bad
faith or surface bargaining allegation. (City of San Jose (2013) PERB Decision No. 2341-M,
p. 23; Muroc, supra, PERB Decision No. 80, p. 13.) However, that does not appear to be the
Association’s argument here. In any event, to provide probative evidence of bad faith, the
separate unfair practice would typically need to be established, or at least its prima facie
elements must be met, if the separate allegation were no longer timely. (See, e.g., City of
Oakland (2014) PERB Decision No. 2387-M, pp. 34-42.) The fact that some, but not all of the
elements of a separate unfair practice allegation were met would not give rise to an inference
of bad faith in support of a surface bargaining allegation.
6
In County Sanitation, the California Supreme Court disapproved of Stationary
Engineers to the extent it held that all strikes by public employees are illegal and in decisions
interpreting EERA and later the MMBA,
7
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In the alternative, the appellate court held that “no worthy grievance existed” to provoke
the strike and then proceeded to discuss the various evidence of the public employer’s bad faith,
including the union’s allegation that the employer had made several pre-impasse unilateral
changes affecting negotiable subjects. According to the appellate court, these changes “did not
show lack of good faith” on the part of the employer, because “they were taken with prior written
notice and [the union] did not appear to discuss the issues.” (Stationary Engineers, supra,
90 Cal.App.3d at 802.)
The case thus does not support the Association’s contention that a unilateral change may
be established by showing the absence of good faith through the totality of circumstances test.
Rather, the court’s discussion accepts, as does PERB, that independent, contemporaneous unfair
practices committed at or away from the bargaining table, including unilateral changes to
negotiable matters, may serve as evidence of bad faith in negotiations, i.e., in support of a
surface bargaining allegation. (City of San Jose, supra, PERB Decision No. 2341-M, p. 23;
Muroc, supra, PERB Decision No. 80, p. 13.) However, because the union had notice and
waived its opportunity for bargaining, no unlawful unilateral change occurred and,
consequently, no independent unilateral change allegation could support a finding of bad faith
for the union’s surface bargaining allegation.
Here, neither the complaint nor underlying unfair practice charge, nor the evidence or
the parties’ briefing, suggested that a surface bargaining allegation was at issue either as an
alternative or in addition to the unilateral change theories set forth in the compliant and
litigated by the parties. Finding no legal authority or policy justification in support of the
Association’s contention, we conclude that after determining that the record did not establish
all of the elements of PERB’s test for a unilateral change, the ALJ properly dismissed the
12

complaint without evaluating the evidence for a bad faith or surface bargaining allegation that
was never alleged or litigated.
We now turn to the Association’s exceptions as to the two elements of a unilateral
change for which the ALJ found insufficient evidence.
Whether the Evidence Established that a Change in Policy Occurred and Whether any Change
Had a Generalized Effect or Continuing Impact on Terms and Conditions
The remainder of the Association’s supporting brief argues that the ALJ incorrectly found
that the City’s conduct was an isolated breach of the parties’ MOU and/or that any change in
employees’ duties had no generalized effect or continuing impact on terms and conditions of
employment. Although they involve separate elements of PERB’s test for unilateral changes, the
Association’s exceptions also tend to overlap in substance. Exception Nos. 2, 3, 6, and 8
challenge the ALJ’s finding that no change in policy occurred, while Exception Nos. 1, 4, 5, and
7 focus on whether the City’s conduct had a generalized effect or continuing impact on terms and
conditions of employment. Exception No. 9 also focuses on the ALJ’s overall determination that
the complaint and charge must be dismissed for, among other things, a failure to prove this
element of PERB’s test for unilateral changes.
An isolated breach of contract or a departure from an established practice is insufficient
to state a prima facie case of a unilateral change because it fails to establish that the violation has
a generalized effect or continuing impact on the terms and conditions of employment of
employees. (Grant Joint Union High School District (1982) PERB Decision No. 196 (Grant),
p. 9; Victor Valley Union High School District (1985) PERB Decision No. 487, pp. 25-33.)
However, where an employer has unilaterally deviated from contractual terms in a way that has a
“generalized effect or continuing impact upon the terms and conditions of bargaining unit
employees,” such action may amount to a failure to negotiate in violation of the statutory duty to
bargain. (Colusa Unified School District (1983) PERB Decision No. 296, p. 5.)
13

Notwithstanding Grant and similar cases, the Association argues that the ALJ ignored
PERB precedent, which recognizes that the continuing impact or generalized effect criterion is
satisfied when the employer argues that it has a legal right to act unilaterally with respect to the
subject in dispute. (Association Supporting Brief, p. 7.) The Association argues that the City
asserted that it has a legal right to act unilaterally in assigning duties outside the scope of the
Clerical Assistant job description because, when provided with an opportunity to remove the
contested duties through the grievance process, the City refused to do so. 	According to the
Association’s supporting brief, the City’s denial of the grievance demonstrates that the
additional, out-of-class duties were intended to remain in effect indefinitely and to apply to
multiple employees in multiple departments. (Association Supporting Brief, p. 6.) It also argues
that the generalized effect and continuing impact requirement is met because the City’s answer to
the complaint asserted as an affirmative defense that its actions were reasonable and based on
justifiable business considerations.
Relying on Jamestown Elementary School District (1990) PERB Decision No. 795
(Jamestown), the Association argues that the ALJ looked only at the number of employees
affected by the employer’s conduct rather than considering whether that conduct had a
continuing impact, irrespective of the number of employees affected. (Association Supporting
Brief, pp. 5-6.) The Association argues that undisputed testimony established that the City’s
changes to employee job duties were an ongoing requirement of the positions, and that the
additional duties were considered in the evaluation and potential discipline of employees.
(Association Supporting Brief, p. 7.) The Association contends that once it provided evidence
that the employer’s change affected multiple employees in multiple departments and was
ongoing, the burden of proof shifted to the employer to prove that the changes were only an
isolated breach of the agreement. (Id. at p. 3.)
14

The Association’s statement of the law is correct. The continuing impact or generalized
effect requirement is satisfied when “the action is based upon the employer’s belief that it had a
contractual [or other] right to take the action without negotiating with the union.” (County of
Riverside (2003) PERB Decision No. 1577-M, p. 6; see also Hacienda La Puente Unified School
District (1997) PERB Decision No. 1186, p. 4.) By asserting it has a legal right to act under the
circumstances, the employer is essentially asserting a right to repeat the conduct in dispute.
Thus, even an employer’s one-time action affecting only one employee may have a generalized
effect or continuing impact on negotiable terms and conditions of employment, if the employer
asserts that it was legally authorized to act unilaterally under the circumstances. (County of
Santa Clara (2015) PERB Decision No. 2431-M, p. 19; Hacienda La Puente, supra, PERB
Decision No. 1186, p. 4; see also Modesto City Schools and High School District (1985) PERB
Decision No. 552, p. 8; and Jamestown, supra, PERB Decision No. 795, p. 6.)
The Association is also correct that in Jamestown and other cases, PERB has declined to
set a minimum number of employees who must be affected for an employer’s action to have a
generalized effect or continuing impact. (State of California (Department of Mental Health)
(1990) PERB Decision No. 840-S, p. 5.) In appropriate circumstances, PERB has even found a
unilateral change violation when no employees were immediately affected by the change, as
when an employer unilaterally sets compensation or changes the hours for a newly-created or
otherwise vacant bargaining-unit position. (Norris School District (1995) PERB Decision
No. 1090, adopting proposed dec. at pp. 15-19; Lake Elsinore School District (1987) PERB
Decision No. 646, p. 5; Huntington Beach Union High School District (2003) PERB Decision
No. 1525, p. 2.)
However, these cases are not applicable here. The City’s answer admitted some facts,
denied the material allegations and asserted various affirmative defenses, including that at all
15

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times relevant, its actions “were in conformity with all applicable laws, regulations, policies, and
labor agreements.” However, as the Association acknowledges in its briefing before the Board,
the City never provided any testimony or other evidence to establish a justifiable business
interest or that the change was only for a limited time and affecting a limited number of
employees. (Association Supporting Brief, p. 7.) Aside from its assertion of a boilerplate
defense in its answer, there is no indication that the City has ever argued that it was authorized
by statute, contract or other legal authority to assign duties that properly belong to the Clerk
Typist or Administrative Secretary job descriptions to Garcia, Sicairos or any other Clerical
Assistant. When Scicairos raised the matter with her supervisor in or about October 2013, the
supervisor agreed that Scicairos was performing out-of-class duties, but could not approve a
reclassification for budgetary reasons. (Charging Party Ex. 12.) The Association appealed this
decision and the City denied the grievance, by reiterating that it had never asked Sicairos to
perform the duties of an Administrative Secretary, and by asserting that under the City’s
Administrative Policy V-B-40, limited hourly, unclassified employees in the Clerical Assistant
classification have no standing to have grievances processed through the civil service grievance
process. 	On the record before us, there is insufficient evidence to conclude that the City has
asserted a legal right to act unilaterally, and we must therefore reject the Association’s
contention that the generalized effect or continuing impact requirement is established by the
City’s denial of the Association’s grievance or other conduct.
8
The Association also argues that, because the City did not specifically assert in its answer
to the complaint an affirmative defense that its conduct amounted, at most, to an isolated breach
The Association has not alleged and the parties have not litigated whether the City
may lawfully deny the Association the right to bring grievances in its own name on behalf of
the employees it represents, including unclassified employees in the Clerical Assistant job title.
We therefore decline to reach that issue.
8
16

of the agreement, the ALJ erred by not shifting the burden to the City and, consequently, in
finding that the Association had not established whether the City’s conduct had a generalized
effect or continuing impact on terms and conditions of employment. We disagree.
The elements of PERB’s test for a unilateral change, including the requirement that a
change have a generalized effect or continuing impact, are part of the charging party’s prima
facie case. (County of Santa Clara, supra, PERB Decision No. 2321-M, pp. 12-13; County of
Riverside (2013) PERB Decision No. 2307-M, p. 18.) Unless the respondent has stipulated to, or
otherwise admitted facts that remove an issue from controversy, the charging party must put on
competent and probative evidence as to each element of its prima facie case. (PERB
Reg. 32178; SEIU-United Healthcare Workers West Local 2005 (Hayes) (2011) PERB Decision
No. 2168-M, pp. 2-4; cf. PERB Reg. 32207; Regents of the University of California (2012)
PERB Decision No. 2302-H, adopting proposed dec. at p. 15.) Failure to prove any element by a
preponderance of the evidence will result in dismissal, regardless of whether the respondent
asserts or proves any affirmative defense.
It is not the City’s burden to show that its conduct was only an isolated breach of the
MOU or that it affected only one employee for a short period of time. Rather, it was the
Association’s burden to prove that the City’s conduct amounted to a change in policy with a
generalized effect or continuing impact on terms and conditions of employment, which it failed
to do here.
ORDER
The complaint and underlying unfair practice charge in Case No. LA-CE-904-M are
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members Winslow and Gregersen joined in this Decision.
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________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
MONTEBELLO CITY EMPLOYEES
ASSOCIATION,
Charging Party,
v.
CITY OF MONTEBELLO,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-904-M
PROPOSED DECISION
(April 24, 2015)
Appearances: Andrew Lotrich, Field Representative, for Montebello City Employees
Association; Liebert Cassidy Whitmore by Jeffrey Freedman, Attorney, for City of Montebello
Before Kent Morizawa, Administrative Law Judge.
In this case, an exclusive representative alleges that a public employer made a unilateral
change to the job duties of Clerical Assistants in violation of the Meyers-Milias-Brown Act
(MMBA).1 The employer denies any violation.
PROCEDURAL HISTORY
On March 5, 2014, the Montebello City Employees Association (MCEA) filed an unfair
practice charge against the City of Montebello (City). On September 26, 2014, the Office of
the General Counsel of the Public Employment Relations Board (PERB or Board) issued a
complaint alleging that the City unilaterally changed the job duties of Administrative
Assistants without first meeting and conferring with MCEA in violation of MMBA sections
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
1

________________________
3503, 3505, 3506, 3506.5, subdivisions (a), (b), and (c), and 3509, subdivision (b), and PERB
Regulation 32603, subdivisions (a), (b), and (c).2
On October 17, 2014, the City answered the complaint denying any violation of the
MMBA or PERB regulations and setting forth its affirmative defenses. On October 29, 2014,
the parties participated in an informal settlement conference, but the matter was not resolved.
Formal hearing was held on February 9, 2015. At the close of MCEA’s case-in-chief,
the City made a motion to dismiss the case and a motion to amend its answer to include the
affirmative defense that the allegations in the complaint are barred by the statute of limitations.
The motion to dismiss the case was denied, and the motion to amend the answer was taken
under submission.
The matter was submitted for proposed decision when post-hearing briefs were filed on
April 9, 2015.
Motion to Amend the Answer
The City seeks to amend its answer to include the statute of limitations as an
affirmative defense. It asserts that it did not include the statute of limitations as an affirmative
defense in its original answer based on the way MCEA pled the facts in its charge and how the
Office of the General Counsel ultimately drafted the complaint. Both of those documents
suggest that MCEA intended to argue that the City’s unlawful conduct occurred in close
proximity to October 2013. However, the evidence MCEA presented at hearing dealt
exclusively with events that occurred several years prior to October 2013. Under these
circumstances, it is appropriate to permit the City to amend its answer in order to address what
is essentially a new set of facts for which MCEA seeks to hold the City liable. Amending the
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
2

answer also does not prejudice MCEA since it is the one who introduced these new facts in its
case-in-chief, and it demonstrated at the hearing that it anticipated the City’s request to amend
its answer. Accordingly, the City’s motion is granted.
Amending the Complaint to Correct an Error
The evidence presented at hearing was with regard to whether two Clerical Assistants
were required to perform the job duties of the Administrative Secretary classification. As the
City noted in its April 17, 2014 position statement, MCEA’s unfair practice charge erroneously
labels these two Clerical Assistants as “Administrative Assistants.” The complaint makes the
same error. There is no dispute here that this case involves the alleged unilateral change to the
duties of Clerical Assistants; not Administrative Assistants. In fact, from the record it is
unclear whether the City even maintains an Administrative Assistant job classification.
Therefore, I am exercising my authority to amend the complaint to replace all references to
Administrative Assistant with Clerical Assistant. (San Diego Unified School District (1991)
PERB Decision No. 885 [a Board agent, on his or her own motion, has the authority to amend
a complaint to correct an error].)
FINDINGS OF FACT
The Parties
MCEA is the exclusive representative of an appropriate unit of employees within the
meaning of PERB Regulation 32016, subdivision (b).
The City is a public agency within the meaning of MMBA section 3501, subdivision
(c), and PERB Regulation 32016, subdivision (a).
3

Job Classifications At Issue
At issue in this case are the Clerical Assistant, Clerk Typist, and Administrative
Secretary job classifications. The Clerical Assistant job description defines the position as
follows:
Under supervision, to perform a variety of average to difficult
clerical, account and/or technical work assignments including the
preparation of reports, records and correspondence; to provide
information to the public in support of the assigned function; and
to perform other job related work as required.
It then lists the following as an example of duties:
Performs a variety of office support assignments including
typing, document preparation, proofreading and checking of
materials for accuracy, checking data and updating technical
records and reports relating specifically to the assigned
department, and filing of same; checks, files and maintains
financial records and documents; may serve as a cashier and
balance daily receipts; may perform a variety of accounting
functions from the processing of accounts payable/receivable to
preparing bank deposits and customer accounts; maintains and
updates client and customer information; checks and tabulates
statistical or financial information; may collect monies and issue
receipts; answers the telephone and assists the general public with
scheduling appointments and providing assistance in the
completion of department forms, applications, or law
enforcement complaints or provision of account information;
types written correspondence and documents from oral direction,
rough drafts, copy, or notes; manually or with the use of
electronic devices takes minutes of meetings and transcribes
accordingly; operates office equipment and computers and checks
records accordingly; processes incoming and outgoing mail; takes
service requests and refers to proper personnel for action;
maintains records of and orders inventory of office support
supplies and materials; may operate dispatch radio to receive and
relay calls; may operate vehicle to deliver and pick up materials;
may be required to work weekends, evenings, and/or holidays.
The Clerk Typist job description defines the position as follows:
Under general supervision to perform a variety of difficult,
technical office support; report and records preparation and
4

maintenance duties in support of an assigned City function; to
provide information to the public and other City staff in support
of the assigned function; and to perform related work as required
It then lists the following as an example of duties:
Performs a variety of office assistance assignments including
typing, document preparation, proofreading, filing, checking data,
and updating records; answers the telephone and assists the
public with scheduling appointments and giving information and
assistance as required; types letters, memoranda, or other
documents from oral direction, rough drafts, copy, or notes; takes
fast notes or uses electronic device and accurately transcribes
minutes of business transacted at meetings; may assist in the
preparation of agendas for distribution; may collect monies and
issue receipts; operates office equipment and computers; sorts
and files documents and records; maintains a variety of
background information and files; sorts and distributes incoming
and outgoing mail; prepares reports; issues and accepts
applications and permits; helps maintain and update client and
customer information; checks and tabulates statistical
information; takes service requests and refers to proper personnel
for action; performs a variety of office support assignments;
maintains and orders inventory of office support supplies and
materials; may answer telephone and dispatch radio to receive
and relay calls; may operate vehicle to deliver and pick up
materials.
The Administrative Secretary job description defines the position as follows:
Under general direction to perform a variety of difficult
confidential, secretarial, office, and administrative support work
for a City Department Director or the City Administrator; to
coordinate the office support work for an assigned Department; to
provide information to the public and other City employees on
the functions, policies, and administrative procedures of the
Department; and to perform related work as required.
It then lists the following as an example of duties:
Performs difficult confidential, secretarial, office, and
administrative support assignments for a Department Head or the
City Administrator; establishes and maintains filing systems;
coordinates processing of employee evaluations and personnel
action forms; provides work coordination for Department office
support functions; organizes information and assists with the
5

preparation and distribution of reports; may take minutes and
maintain records of Department staff meetings and public
meetings of elected and appointed officials; answers the
telephone and receives office visitors providing a variety of
information about the policies and services of the assigned
Department; responds to citizen complaints or refers persons to
other appropriate City personnel; maintains appointments
calendars and makes travel arrangements for Department staff;
assists with the preparation and monitoring of the Department
budget; coordinates submission of Department time cards, office
equipment and supply requests to City accounting; reviews and
prioritizes Department mail and refers some items to other
departments; assists with studies, projects, surveys, and special
events planning; may perform some Deputy City Clerk functions;
may assist with investment and City Treasurer functions; may
perform some notarial acts; operates office equipment, including
standard office software programs.
Selene Garcia
Selene Garcia worked for the City from June 1, 2004, through December 31, 2014, as a
Clerical Assistant in the Street Maintenance division of the Public Works Department. At the
time, the Public Works Department was part of the larger Municipal Services Department,
which also included other divisions such as Parks & Recreation and the Golf Course. In May
2010, as a result of the City’s reorganization of the Municipal Services Department, Garcia
was physically relocated from the Public Works facility to the Golf Course where she reported
to Assistant Director of Parks & Recreation Martha Balderrama.
Garcia testified that during her entire time with the City, she performed most of the
duties of a Clerk Typist, including typing letters and memoranda from oral direction and
maintaining a variety of background information and files. Some Clerk Typist duties, such as
collecting money, issuing receipts, and preparing agendas, she did not perform until her
relocation to the Golf Course.
6

Garcia also testified that during her entire time with the City, she performed most of the
duties of an Administrative Secretary, including establishing and maintaining file systems,
coordinating and processing employee evaluations and personnel action forms, and organizing
information and assisting with the preparation of reports. Some Administrative Secretary
duties, such as taking minutes and preparing agendas, she did not perform until her relocation
to the Golf Course. Others, such as making travel arrangements and performing notarial acts,
she did not perform at all during her time with the City.
Desiree Sicairos
Desiree Sicairos worked for the City from February 7, 2007, through October 2014 as a
Clerical Assistant. In 2010, she began working in the Parks and Recreation Department under
the supervision of Norma Salinas, the head of the Municipal Services Department. At this
time, Sicairos worked alongside Administrative Secretary Patricia Angulo. Sicairos testified
that during her entire time with the City, she performed most of the duties of a Clerk Typist,
including answering the telephone, assisting the public, and preparing reports. Some Clerk
Typist duties, such collecting money, issuing receipts, and accepting applications and permits,
she did not perform until her relocation to Parks & Recreation.
Sicairos also testified that during her entire time with the City, she performed most of
the duties of an Administrative Secretary, including coordinating the submission of department
timecards, reviewing and prioritizing department mail, and assisting with studies, projects,
surveys, and special events planning. Some Administrative Secretary duties, such as
coordinating and processing employee personnel action forms and assisting with the
preparation and monitoring the department budget, she did not perform until her relocation to
7

________________________
Parks & Recreation. Others, such as assisting with investment and City Treasurer functions,
she did not perform at all during her time with the City.
When Salinas retired in 2012, the City split the Municipal Services Department into
two separate departments, Public Works and Parks & Recreation. In September 2013, Sicairos
was moved to City Hall and began working directly for Danilo Batson, the new Director of
Public Works. Angulo remained in Parks & Recreation where she worked for Balderrama,
who remained the Assistant Director of the department.3
On October 7, 2013, Sicairos and her union representative met with Batson to discuss
her job duties. Sicairos stated she should be reclassified as an Administrative Secretary
because she was performing the job duties of that position directly for a department head.
Batson responded that he would confirm with his supervisor and get back to her. Sometime
thereafter, Batson spoke to the City Manager regarding Sicairos’ request. After that meeting,
Batson informed Sicairos that her request was denied.
On October 23, 2013, MCEA filed a grievance demanding Sicairos be reclassified as an
Administrative Secretary. On November 20, 2013, the City denied the grievance, asserting it
never required Sicairos to perform the duties of an Administrative Secretary and in any event
the City did not allocate money in its budget for that position. After denying the grievance, the
City moved Sicairos from City Hall back to the Parks & Recreation building and moved
Angulo from Parks & Recreation to City Hall. After the switch, Angulo worked directly for
Batson and Sicairos worked directly for Balderrama.
3 The director position was vacant.
8

On November 21, 2013, MCEA appealed the City’s decision to the Civil Service
Commission. On November 25, 2013, the City denied the appeal on the basis that as a limited
hourly employee Sicairos lacked standing to file such an appeal.
On January 24, 2014, MCEA filed another appeal to the Civil Service Commission, this
time including Garcia in the grievance. The record does not contain any further
correspondence between the parties regarding MCEA’s grievance.
ISSUES
1. 	Are MCEA’s claims barred by the statute of limitations?
2. 	Did the City unilaterally implement a negotiable change without meeting and
conferring with MCEA by requiring Clerical Assistants to perform the job duties of
Administrative Secretaries?
3. 	Should the allegation that the City unilaterally changed the job duties of Clerical
Assistants by requiring them to perform the duties of Clerk Typists be considered as an
unalleged violation? 	If so, was there a violation?
CONCLUSIONS OF LAW
Statute of Limitations
PERB is prohibited from issuing a complaint with respect to any charge based upon an
alleged unfair practice occurring more than six months prior to the filing of the charge.
(Coachella Valley Mosquito and Vector Control District v. Public Employment Relations
Board (2005) 35 Cal.4th 1072.) The limitations period begins to run once the charging party
knows, or should have known, of the conduct underlying the charge. (Gavilan Joint
9

________________________
Community College District (1996) PERB Decision No. 1177.)4 In the case of a unilateral
change, the statute of limitations begins to run on the date that the charging party has actual or
constructive notice of the respondent’s clear intent to implement a unilateral change in policy,
provided that nothing subsequent to that date evinces a wavering of that intent. (Cloverdale
Unified School District (1991) PERB Decision No. 911.) Despite the City’s assertion to the
contrary, at hearing the respondent bears the burden of demonstrating that the charge was filed
outside the six-month limitations period. (Los Angeles Unified School District (2014) PERB
Decision No. 2359.)
Garcia and Sicairos testified that they began performing the duties of Clerk Typists and
Administrative Secretaries well before six months prior to when MCEA filed its charge.
However, an employee’s knowledge of a proposed change to the terms and conditions of
employment cannot be imputed to the union absent evidence that the employee has the
capacity to act in an official capacity on behalf of the union. (Regents of the University of
California (Davis) (2010) PERB Decision No. 2101-H; Victor Valley Union High School
District (1986) PERB Decision No. 565.) The City did not establish that Garcia or Sicairos
possess the requisite authority to act on behalf of MCEA. Therefore, their knowledge alone is
insufficient to trigger the statute of limitations.
MCEA asserts that it first became aware of the alleged unilateral change in October
2013 when Sicairos approached the union about filing an out-of-class grievance. The City did
not establish that MCEA knew or should have known of the alleged unilateral change prior to
that date. In fact it presented no evidence regarding when, if ever, it informed MCEA of any
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
4
10

changes to Garcia or Sicairos’ job duties or when MCEA should have known of any changes.
Thus, City did not meet its burden to establish that the allegations in the complaint are
untimely.
Unilateral Change
In determining whether a party has violated MMBA section 3505 and PERB
Regulation 32603, subdivision (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 took action to change policy; (2) the change in policy concerns a matter
within the scope of representation; (3) the action was taken without giving the exclusive
representative notice or opportunity to bargain over the change; (4) the action had a
generalized effect or continuing impact on terms and conditions of employment. (County of
Santa Clara (2013) PERB Decision No. 2321-M; Fairfield-Suisun Unified School District
(2012) PERB Decision No. 2262.)
MMBA section 3504 defines the scope of representation of recognized employee
organizations as:
The scope of representation shall include all matters relating to
employment conditions and employer-employee relations,
including, but not limited to, wages, hours, and other terms and
conditions of employment, except, however, that the scope of
representation shall not include consideration of the merits,
necessity, or organization of any service or activity provided by
law or executive order.
Following precedent under EERA, the Board has found that the assignment of job duties is not
a mandatory subject within the scope of representation if the newly assigned duties are
11

reasonably related to existing duties. (City & County of San Francisco (2004) PERB Decision
No. 1608-M; City & County of San Francisco (International Airport) (2007) PERB Decision
No. 1932-M.)
Generally, the Clerical Assistant and Administrative Secretary positions both require
the incumbent to provide office support to his or her department. The difference between the
two is that the Administrative Secretary performs difficult, confidential assignments and does
so with minimal supervision whereas the Clerical Assistant performs easier tasks under direct
supervision. Of the three positions at issue, the Administrative Secretary job classification
requires the most skill and experience, which is why the Administrative Secretary
classification is reserved for administrative staff working directly for a Department Director or
the City Administrator.
Although some of the duties of a Clerical Assistant match up with those of an
Administrative Secretary or are reasonably comprehended within a Clerical Assistant’s job
duties, there are a number that are not. For example, Garcia and Sicairos testified that they
coordinated the processing of confidential employee evaluations and personnel action forms
and assisted with the preparation and monitoring of their departmental budgets. These duties
require a significantly higher degree of difficulty and autonomy than would not be expected of
a Clerical Assistant and are not reasonably related to the job duties of a Clerical Assistant.
Accordingly, their imposition on Clerical Assistants constitutes a matter within the scope of
representation.
However, MCEA did not establish that the imposition of duties had a generalized effect
or continuing impact on the terms and conditions of employment. The Board has held that an
isolated change to the status quo does not amount to an unlawful unilateral change. (Grant
12

Joint Union High School District (1982) PERB Decision No. 196; State of California
(Department of Corrections and Rehabilitation, Ventura Youth Correctional Facility) (2010)
PERB Decision No. 2131-S.) While a charging party need not show that an employer’s action
affected all bargaining unit members, it must still establish that a disputed action is in the
nature of a change in policy. (Jamestown Elementary School District (1990) PERB Decision
No. 795.)
Garcia and Sicairos were the only Clerical Assistants to testify. From their limited
testimony, MCEA draws the inference that the City changed policy by requiring all Clerical
Assistants to perform the job duties of Administrative Secretaries. However, there is not
enough evidence in the record to permit that inference. As an initial matter, it is unclear
whether there was even a change in policy given that Garcia and Sicairos were admittedly
performing Administrative Secretary job duties from the beginning of their employment with
the City. Even assuming a change in policy, MCEA did not establish that the change was more
than an isolated breach. Although MCEA’s brief asserts that the City’s reliance on a
Management Rights clause to support the imposition of Administrative Secretary job duties on
Garcia and Sicairos demonstrates more than an isolated breach, the record does not support
that assertion. None of the City’s correspondence refers to a Management Rights clause, nor
did the City’s witness testify about such a clause giving them the authority to assign new job
duties that fall within the scope of representation and are subject to bargaining. Instead, the
evidence presented at hearing shows that the change to Sicairos and Garcia’s job duties was an
isolated breach where two employees were working out of class.
13

Based on the above, MCEA has failed to establish that the City implemented an
unlawful unilateral change when it required Garcia and Sicairos to perform some of the duties
of the Administrative Secretary job classification.
Unalleged Violation
MCEA alleges that the City implemented an unlawful unilateral change when it
required Clerical Assistants to perform the work of Clerk Typists. However, this allegation is
not included in the complaint nor did MCEA move to amend the complaint to seek its
inclusion. Therefore, to constitute a source of liability for the City, this allegation must meet
the requirements for an unalleged violation. (West Contra Costa Healthcare District (2010)
PERB Decision No. 2145-M.)
The Board has the authority to review unalleged violations when the following criteria
are met: (1) adequate notice and opportunity to defend has been provided to respondent; (2) the
acts are intimately related to the subject matter of the complaint and are part of the same course
of conduct; (3) the unalleged violation has been fully litigated; and (4) the parties have had the
opportunity to examine and be cross-examined on the issue. (County of Riverside (2010)
PERB Decision No. 2097-M; Fresno County Superior Court (2008) PERB Decision No. 1942-
C.) The unalleged violation must also have occurred within the applicable statute of
limitations period. (County of Riverside, supra, PERB Decision No. 2097-M.)
All of the criteria for an unalleged violation are met in this case. The issue is timely in
light of the City’s failure to meet its burden to show otherwise. MCEA was clear in its case-in-
chief that it intended to litigate the issue of Clerical Assistants being required to perform the
job duties of Clerk Typists, and the City did not raise any objection to the introduction of
evidence regarding that issue, either at the hearing or in its closing brief. The issue is also
14

intimately related to the subject matter of the complaint, which asserts that the City unilaterally
changed the job duties of Clerical Assistants by requiring them to perform the work of a higher
level classification. Both parties also questioned Garcia and Sicairos in great detail regarding
their job duties, including those that arguably fall within the ambit of a Clerk Typist. The issue
has also been fully litigated, with the City giving it full treatment in its closing brief.
Accordingly, a decision will be reached on the merits.
The Clerical Assistant and Clerk Typist job classifications are fundamentally similar in
terms of the kinds of duties they to perform. Despite some slight variations in verbiage, most
of the job duties for each classification are identical. For example, both are required type
documents from oral direction, rough drafts, copy, or notes; both are required to process
incoming and outgoing mail; and both are required to perform a variety of office support
assignments. What separates the two classifications is the degree of difficulty of assignments
and the level of supervision. The Clerk Typists classification is a higher level classification
that requires the incumbent to perform more difficult tasks with less supervision.
When Garcia and Sicairos were asked at the hearing whether they performed a specific
Clerk Typist job duty, they responded only with a “yes.” They did not provide any detail that
would allow one to conclude that they were performing those duties as a Clerk Typist and not
as a Clerical Assistant. For example, how were those duties more difficult than what would be
required of a Clerical Assistant? Accordingly, for the job duties that explicitly overlap
between the two positions, there is insufficient evidence to conclude that Garcia and Sicairos
were performing them at the level of a Clerk Typist.
Despite the significant overlap of job duties, there are some Clerk Typists job duties
that do not completely align with the Clerical Assistant job description. For example, the
15

Clerk Typist is required to prepare agendas for meetings and issue and accept applications for
permits. These duties require more discretion and autonomy than expected of a Clerical
Assistant and are not reasonably related to the existing job duties of that position. Therefore,
the assignment of these duties is a matter within the scope of representation.
However, MCEA did not establish that the City made a policy decision to alter the job
duties of Clerical Assistants by requiring them to perform some of the duties of Clerk Typists.
Again, it is unclear whether the City changed any job duties at all given Garcia and Sicairos’
admission that they began performing Clerk Typists duties from the beginning of their
employment with the City. There is also insufficient evidence to suggest that any change was
more than an isolated breach. Therefore, MCEA has failed to establish that the City
implemented an unlawful unilateral change when it required Garcia and Sicairos to perform
some of the duties of the Clerk Typist job classification.
PROPOSED 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. LA-CE-904-M,
Montebello City Employees Association v. City of Montebello, 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:
16

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).)
17