City of Folsom (PERB 1531M)

STATE OF CALIFORNIA,
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MARK SIROKY,
Charging Party,
V.
CITY OF FOLSOM,
Respondent.
Case No. SA-CE-33-M
PERB Decision No. 	1531-M
June 	20, 	2003
Appearance: Mark Siroky, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Mark Siroky (Siroky) of a Board agent's dismissal of his unfair
practice charge. The charge alleged that the City of Folsom (City) violated the Meyers-Milias
Brown Act (MMBA)1 by failing to sign a settlement agreement based upon an arbitration
decision that awarded Siroky $5,000 for working out of class. Siroky did not identify any
specific statutory section in the original charge; however, as he alleged that the City is refusing
to sign this agreement because of his union activity, he appeared to be claiming a violation of
MMBA sections 3502 and 3506.2 He also alleged that the City refused to meet and confer in
1MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2Section 3502 states:
Except as otherwise provided by the Legislature, public
employees shall have the right to form, join, and participate in the

good faith with his union representatives, an alleged violation of MMBA section 3505.3 The
Board agent dismissed the charge for failure to state a prima facie case.
activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee
relations. Public employees also shall have the right to refuse to
join or participate in the activities of employee organizations and
shall have the right to represent themselves individually in their
employment relations with the public agency.
Section 3506 states:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 3502.
3Section 3505 states:
The governing body of a public agency, or such boards,
commissions, administrative officers or other representatives as
may be properly designated by law or by such governing body,
shall meet and confer in good faith regarding wages, hours, and
other terms and conditions of employment with representatives of
such recognized employee organizations, as defined in
subdivision (b) of Section 3501, and shall consider fully such
presentations as are made by the employee organization on behalf
of its members prior to arriving at a determination of policy or
course of action.
"Meet and confer in good faith" means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period of time in
order to exchange freely information, opinions, and proposals,
and to endeavor to reach agreement on matters within the scope
of representation prior to the adoption by the public agency of its
final budget for the ensuing year. The process should include
adequate time for the resolution of impasses where specific
procedures for such resolution are contained in local rule,
regulation, or ordinance, or when such procedures are utilized by
mutual consent.
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Upon review of the entire file, including the unfair practice charge, the amended
charge, the Board agent's warning and dismissal letters, and Siroky's appeal, the Board affirms
the Board agent's dismissal consistent with the discussion below.
BACKGROUND4
In September 1990, Siroky was hired by the City as a Junior Engineer. He was
represented by the International Union of Operating Engineers, Local 39 (IUOE), which, in
1996, filed several grievances on his behalf. In 1998, these grievances were consolidated and
brought before an arbitrator. 	One of the issues involved seeking compensation for working out
of class. Before the arbitration hearing, on July 22, 1998, IUOE, on Siroky's behalf,
negotiated a settlement agreement with the City, for which IUOE's attorney recited the terms
before the arbitrator, a court reporter and the City, and for which a copy of the transcript is
attached to the charge. The settlement included payment to Siroky of $5,000 as unpaid wages
in exchange for his agreement to resign voluntarily from the City by September 30, 1998 and
to withdraw pending grievances and litigation against the City. In response to any inquiries
about Siroky, the City also agreed to refer all such inquiries to the City's Personnel Director
who would in tum only provide Siroky's date of hire, job classifications during his tenure and
resignation date. The parties also agreed that a final settlement would be preconditioned on the
agreement of individual defendants in civil litigation brought by Siroky, and that all parties
would then execute a written agreement. 5
4This section comprises the Board's findings regarding the allegations in the charge, as
amended.
5There is nothing in the case file indicating that the parties ever reached a final
agreement. The settlement transcript on p. 7 indicated that the settlement was conditioned on
obtaining the signatures of and releases from all parties, including the City, IUOE, Siroky and
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Siroky alleged that he fulfilled all of his obligations under the agreement ofrecord and
had signed three different versions of the settlement agreement, all of which the City had
refused to sign.6 He also claimed that the City drafted a settlement agreement that
substantially changed the terms from the agreement of record; and further, that the City
demanded that he sign the City's version of the agreement before the City would pay Siroky
the $5,000 in unpaid wages.7 As a remedy, Siroky asked the Board to order the City to pay
him the $5,000 in compliance with the recorded settlement before the arbitrator.
In his amended charge, Siroky identified several former City employees who had
grievances against the City but who had achieved resolution of their disputes; all of the named
individuals were not members of a union. He also identified a provision in the memorandum
"individuals who are presently or who have in the past been named as individual defendants in
the Siroky versus City of Folsom lawsuit. ... "
6Neither the draft agreements nor their relevant provisions are alleged in the charge, as
amended, or in the case file, except for a provision of the City's proposed draft excerpted in the
warning letter.
7Siroky did not identify specific dates as to when much of the City's conduct occurred.
Instead, the charge states as follows:
I have signed three different settlement agreements, all of which
comply with the terms of the agreement of record. The City
refuses to recognize any of these documents. In August 2001, the
Union drafted a written settlement that EXACTLY follows the
language of the settlement of record and presented it to the City.
The City is still refusing to pay me.
The City drafted a settlement agreement and release of liability
that SUBSTANTIALLY changes the terms of the settlement of
record and is demanding, as a condition of the payment of my
wages, that I sign THEIR document, their release of liability.
For the past 3 years I have worked endlessly to resolve this and
get paid. 	[Emphasis in original.]
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of understanding (MOU) between the City and IUOE for a grievance procedure that included
mediation and arbitration. He alleged that there was a similar provision contained within the
City's Personnel Rules and Regulations. 8 According to Siroky, the City had refused mediation
and arbitration over the content of the settlement agreement.
Siroky further claimed that after he joined IUOE, the City began harassing him via
letters and filings. 9 He also stated that Bob Bailey (Bailey), a mid-level City manager, told
him that the City disliked IUOE and that employees would be better off without it. Siroky
asserted that certain named rank and file employees heard Bailey make these statements.
Siroky contended that the City failed to offer any justification for its actions.
In his amended charge, Siroky also alleged that the City violated Section 3505 by
failing to meet and confer in good faith with IUOE. In September/October 1999, the IUOE
attorney requested a meeting to resolve these disputes with the City and in November 1999,
requested that the disputes be submitted to an arbitrator. According to Siroky, the City's legal
counsel refused both requests.
Siroky filed his charge on January 25, 2002 and the amended charge, on April 8, 2002.
In the dismissal, the Board agent held that Siroky failed to state a prima facie violation
of MMBA. Although the Board agent found that Siroky met some of the factors for
discrimination/retaliation, including, protected conduct, the City's awareness of the conduct,
and the City's adverse action against Siroky, she concluded that Siroky had not alleged
8Neither the pertinent portions of the MOU nor the City's Personnel Rules and
Regulations are alleged in the charge, as amended, or in the case file.
9None of these letters or filings, or excerpts therefrom, are alleged in the charge, as
amended, or in the case file.
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sufficient facts to establish a nexus between the protected conduct and the City's adverse
action.
The Board agent also dismissed Siroky' s allegation that the City failed to meet and
confer with his union in violation of MMBA section 3505 since only employee organizations
have standing to file such a charge.
DISCUSSION
This case is principally about the City's alleged refusal to honor a settlement agreement
recorded before an arbitrator in July 1998. Since that time, Siroky alleged that he had made
three unsuccessful attempts to obtain a written settlement from the City, the most recent of
which occurred in August 2001. The City, according to Siroky, refused to sign these
agreements and proffered its own version that contained substantial differences from the
recorded settlement. Siroky contends that he and his union counsel have attempted to get the
City to resolve the dispute, including attempts by IUOE counsel in November 1999 to submit
the dispute to an arbitrator for a final and binding award, and in August 2001, to submit a draft
agreement to the City for signature.
After review of the case file, the Board agrees that this case should be dismissed.
However, regarding Siroky's allegation that the City refused to honor the settlement
agreement, the Board declines to adopt the rationale provided in the Board agent's dismissal.
The Board's disposition of this allegation is set forth below.
Code of Civil Procedure section 338 prohibits PERB from issuing a complaint with
respect to any charge based upon an alleged unfair practice occurring more than three years
prior to the filing of the charge. (City of Anaheim (2003) PERB Order No. Ad-321; City of
Huntington Park (2002) PERB Decision No. 1485.) The limitations period begins to run once
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the charging party knows, or should have known, of the conduct underlying the charge.
(Gavilan Joint Community College District (1996) PERB Decision No. 1177.)10 The charging
party bears the burden of demonstrating that the charge is timely filed. 	(Tehachapi Unified
School District (1993) PERB Decision No. 1024; State of California (Department of
Insurance) (1997) PERB Decision No. 1197-S.)
According to Siroky, the alleged unfair conduct, the City's refusal to sign a settlement
agreement reflecting the settlement ofrecord and the City's failure to pay Siroky the $5,000 as
its part of the settlement, occurred in 1998, the fall of 1999 and in August 2001. It is unclear
why IUOE waited over a year from the date of the recorded settlement and approximately one
year from the date that Siroky was required to resign to seek a written settlement from the City.
Siroky failed to provide information as to when he first tried to obtain a written settlement
either through his union or on his own, and as to why he resigned on the agreed-upon date
despite the failure of the parties to execute a written settlement or the City's failure to pay
Siroky $5,000. Without access to the parties' grievance and arbitration process, it is unclear
whether that process contained some remedy for the City's alleged failure to execute the
agreement. In the recorded agreement, the arbitrator did not retain jurisdiction in the event the
parties failed to execute an agreement. It appears to us that on September 30, 1998, the date he
voluntarily resigned without having executed a written agreement, Siroky should have known
of the City's intent to repudiate the settlement agreement. 11 Under this scenario, Siroky could
10When 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. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr.
507].)
11 Siroky did not identify in the charge when the City first repudiated the settlement
agreement or when he first became aware of the City's intent.
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have continued to attempt indefinitely to obtain a written settlement as a way to extend the
limitations period. Siroky's charge was filed on January 25, 2002, more than three years after
the arbitration settlement and Siroky's voluntary resignation without receipt of the agreed-upon
sum. Consequently, the charge was not timely filed, and is thereby dismissed on this basis.
In Siroky's appeal, he reiterates the arguments in his charge, as amended, and raises
some additional issues. One issue involved the lack of a legal discovery mechanism in order to
obtain information from the City that would support the allegations in his charge. Siroky
further complains that the Board agent utilized a "conclusive presumption" standard, instead of
a "rebuttable presumption" standard in making her determination that he failed to allege a
prima facie violation of MMBA. Yet, he acknowledges that the City refused to honor the
settlement agreement as early as 1998. He has therefore failed to provide any facts or
argument that would cure the untimeliness of the charge. Accordingly, it is unnecessary for
the Board to evaluate the merits of this allegation.
Siroky reiterates his claim on appeal that the City refused to meet and confer with
IUOE to resolve his dispute in violation ofMMBA section 3505. We agree with the Board
agent's determination that this allegation should be dismissed since only employee
organizations have standing to allege a failure to bargain. (Oxnard School District (Gorcey
and Tripp) (1988) PERB Decision No. 667.)
ORDER
The unfair practice charge in Case No. SA-CE-33-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Baker and Neima joined in this Decision.
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