County of Riverside (PERB 1577M)

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\ STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION,
Charging Party, Case No. LA-CE-5-M
V. PERB Decision No. 1577-M
COUNTY OF RIVERSIDE, December 31, 2003
Respondent.

Appearances: Tosdal, Levine, Smith, Steiner & Wax by Jon Y. Vanderpool, Attorney, for
Service Employees International Union; Liebert, Cassidy & Whitmore by Nate Kowalski,
Attorney, for County of Riverside.
Before Baker, Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the County of Riverside (County) to an administrative law
judge’s (ALJ) proposed decision (attached). The charge alleged that the County violated the
Meyers-Milias-Brown Act (MMBA)' by refusing to process a srievance of a unit member.
The Service Employees International Union (SEIU) alleged that this conduct constituted a

violation of MMBA section 3505 and PERB Regulation 32603(b), (c) and (g)*.

Using an expedited decision process, as stipulated by the parties, the ALJ found that

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

*PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.

the County unilaterally changed the grievance process regarding the grievability
of
promotions
without first providing SEID with notice and an opportunity to bargain. The County filed
exceptions to the ALJ' s proposed decision and SEID filed a response to the County's
exceptions.
Upon review
of
the record in this matter, the Board affirms the ALJ's proposed
decision consistent with the discussion herein and shall address the issues raised by the County
in its exceptions.
BACKGROUND
The charge alleges that on June 8, 2001, unit member Carmela B. MacArthur
(MacArthur) grieved t?e County's alleged improper promotion
of
a per diem employee over
MacArthur, a full-time employee and that MacArthur did not receive adequate training for the
position. The grievance alleges that the County violated memorandum
of
understanding
(MOU) Art. VI, Section
5.
	In the charge, SEID relied upon attached descriptions for the
Radiologic Technician classifications, emphasizing language that the series was designed "to
establish a career ladder, which provides professional growth through perfonnance
of
increasingly responsible and complex assignments and to recognize professional development
and expertise attained through education and experience." On June 21, 2001, the County
responded that it was refusing to process the grievance because the issue
of
promotion was not
grievable. According to SEID, MOU Art. VI, Section 5 requires that promotions be made on
the basis
of
"merit and ability." Art. XIII
of
the MOU sets forth the grievance procedure.
Under Art. XIII, Section 2, a grievance is defined as "the subject of a written request or
complaint
...
arising out of a dispute by an employee or group
of
employees concerning the
application or interpretation of the specific terms and conditions set forth in this Memorandum
of Understanding." According to SEID, the issue of promotions is not excluded from the
2

grievance procedure. SEIU alleges that the County's conduct represents a unilateral change in
policy without prior notice to SEIU and that this conduct also repudiates the negotiated MOU.
SEIU also alleges that the County's conduct interferes with members' rights to representation
and SEIU's rights to represent its members.
The County argues that matters subject to the grievance procedure are not all-
encompassing and that the grievance procedure excludes matters reviewable through another
administrative procedure, actions requiring formal adoption
of
a rule or regulation by the
County Board
of
Supervisors, and listed disciplinary actions. (MOU Article XIII, Sections
2(A), 2(B) and 2(C), respectively.) The County argues that the promotion provision in the
MOU must be read in context, that the parties have agreed to a merit system procedure; and
under that provision, the County has the sole discretion to determine who to promote. Article
VI, Section 5 provides:
Merit Systems/Veterans Preference. The Human Resources
Administration under this Memorandum is designated a merit
system. Appointments, promotions, demotions, transfers and
dismissals shall be made on the basis
of
merit and ability. Each
officer shall appoint all necessary employees allowed for their
department by this Memorandum only from among persons
certified to them by the Human Resources Director as eligible for
the respective positions. The Human Resources Director shall
determine the methods
of
evaluating the qualifications
of
applicants. The methods shall be practical in nature and may
involve any combination
of
written test, oral test, performance
test, rating
of
education, training and experience and shall take
into consideration a system
of
veterans preference as may be
adopted by the Board
of
Supervisors, by resolution. The veterans
preference program shall be administered by the Human
Resources Director.
3

The County also referred to a 1995 arbitration award involving a grievance by another
employee organization that challenged the implementation
of
the promotional process by the
County allegedly in violation
of
an identical MOU provision.3
ALJ'S PROPOSED DECISION
The proposed decision was issued pursuant to an expedited hearing process, as
stipulated by the parties, in which the record comprised the contents
of
the case file, including
statements
of
the parties' positions and attachments to those statements.
Using a "per se" test, the ALJ found that promotions are matters within the scope
of
representation and that the County unilaterally changed the grievance process as it pertained to
the issue
of
promotions without affording SEIU notice or the opportunity to bargain. 	The ALJ
further disagreed with the County's contention that its action did not constitute a change in
policy because it only affected one employee. Relying upon Hacienda La Puente Unified
School District (1997) PERB Decision No. 1186 (Hacienda La Puente) and Moreno Valley
Unified School District (1995) PERB Decision No. 1106 (Moreno Valley), the ALJ held that
the County's statement that "the issue
of
promotion is not grievable," was sufficiently broad to
comprise not merely a rejection
of
a single grievance, but also a change in the County's
grievance policy. The ALJ also noted that the County had previously agreed to process a
grievance through arbitration over a similar MOU provision in 1994-1995.
The ALJ further disagreed with the County's interpretation
of
MOU exclusions from
the grievance process. Article XII, Section 2(C) excludes complaints involving forms
of
disciplinary action; promotions do not fall within these exclusions. Article VI, Section 5
provides the County with discretion to evaluate and select candidates for promotion, but
3While he denied the grievance, the arbitrator did not find that the MOU excluded the
issue from the grievance procedure.
4

requires the County to promote on the basis of "merit and ability" and to follow specified
guidelines. Accordingly, the ALJ concluded that the County's conduct violated MMBA
section 3505 and PERB Regulation 32603(c) and further found derivative violations of MMBA
sections 3506 and 3503, and PERB Regulation 32603(a) and (b).
DISCUSSION
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.)4 Unilateral changes are considered
"per se" violations if certain criteria are met. Those criteria are: (1) the employer implemented
a change in policy concerning a matter within the scope of representation, and (2) the change
was implemented before the employer notified the exclusive representative and gave it an
opportunity to request negotiations; and, (3) the change is not merely an isolated breach of the
contract, but amounts to a change of policy, i.e., the change has a generalized effect or
continuing impact on bargaining unit members' terms and conditions of employment. 	(Vernon
Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908]; Walnut Valley
Unified School District (1981) PERB Decision No. 160; San Joaquin County Employees Assn.
v. City of Stockton (1984) 161 Cal.App.3d 813 [207 Cal.Rptr. 876]; Grant Joint Union High
School District (1982) PERB Decision No. 196.)
Under the per se test, the Board finds that the County's refusal to process MacArthur's
grievance comprised an unlawful unilateral change without notice to SEIU or opportunity to
4When 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 [16 Cal.Rptr.
507].)
5

bargain. The Board has long held that grievance procedures are within the scope
of
representation. (Anaheim City School District (1983) PERB Decision No. 364;5 MMBA
sections 3500(a) and 3503.) The Board disagrees with the County that its refusal to process
MacArthur's grievance did not have a generalized effect or continuing impact on the unit.
Under Hacienda La Puente and Moreno Valley, a grievance on behalf
of
one or a few
individuals has a generalized effect or continuing impact on the unit members' terms and
conditions
of
employment because the action is based upon the employer's belief that it had a
contractual right to take the action without negotiating with the union. (Hacienda La Puente,
at
p. 4.) Here, in June 2001, the County clearly stated in writing to SEIU that promotions were
not grievable under the MOU. However, in 1995, the County had agreed to process a
grievance to arbitration over promotions under identical MOU provisions with a different
bargaining unit. In its exceptions, the County contends that the statement set forth in its
response to the grievance, that "the issue
of
promotion is not grievable," is not a "broad
proclamation;" that contention is not credible.
The County has not identified specific exclusions in the grievance procedure for
promotions. Instead, the County asserts that MOU Article VI, Section 5 covering promotions,
confers to the County a unilateral right to determine who is promoted. The District points to
language in the MOU establishing a merit system administered by the Human Resources
Director. Article VI, Section 5 also requires that each officer appoint all necessary employees
but only among individuals certified as eligible by the Human Resources Director. 	The
Human Resources Director shall determine the methods
of
evaluating qualifications
of
5See footnote 4. MMBA sections 3500(a) and 3503 confer to employee organizations
the same rights to representation of unit members as Education Employment Relations Act
sections 3540 and 3543. l(a).
6

candidates, using written tests, oral tests, performance tests or other listed methods. In
essence, the County argues that SEIU has waived its right to grieve the issue
of
promotions
generally.
Under long-standing Board precedent, such a waiver must be "clear and unmistakable."
(San Marcos Unified School District (2003) PERB Decision No. 1508, pp. 27-30; Hacienda La
Puente; Amador Valley Joint Union High School District (1978) PERB Decision No. 74;
Oakland Unified School Dist.
v.
Public Employment Relations Bd. (1981) 120 Cal. App. 3d
1007, 1011 [ 175 Cal. Rptr. 105].) SEIU did not waive its right to file grievances regarding
promotions. Under MOU Article VI, Section 5, the County's right to promote employees is
circumscribed by the provision requiring that promotions be based upon "merit and ability."
At least in part, this is what MacArthur was asserting in her grievance. 	Consequently, the
Board finds that there is no exclusion in the grievance procedure for promotions generally.
Whether or not MacArthur's grievance has merit should be addressed through the grievance
process. It is the County's failure to process the grievance, not the merits
of
the grievance, that
constitutes the unlawful conduct.
The County further counters that it has recently changed the MOU to provide for
binding mediation for disputes over grievability
of
such issues as MacArthur's. The County
reasons that it currently could not refuse to process MacArthur's grievance
if
filed now. 	As
stated, the Board has found nothing in the MOU grievance procedure that excludes the issue
of
promotions. Similarly, the County argues that MOU Article XIII, Section 2(B) excludes issues
requiring formal adoption
of
a rule or regulation by the County's Board
of
Supervisors. 	It
explains that processing this grievance would require a revision in the MOU, and therefore a
formal vote by the County's board. The Board disagrees. Besides the fact that the Board finds
the issue of promotions is not excluded from the grievance procedure, our finding is supported
7

by
the only evidence
of
past practice provided by the parties - the 1994-1995
grievance/arbitration
of
a similar issue involving identical MOU language.
Finally, the Board disagrees with the County's contention that the
ALJ's
proposed
order was overbroad, requiring the County to process all grievances over promotions. What
the order states, in part, is that the County must cease and desist from:
Failing and refusing to process grievances regarding promotion,
including the grievance filed
by
SEIU on behalf (of) Carmella
Bea MacArthur on June 8, 2001, pursuant to the parties' agreed-
upon grievance procedures.
The proposed order therefore does not require processing
of
all such grievances unless
they are processed in compliance with the "parties' agreed-upon grievance procedures." Thus,
contrary to its assertion, the County would not be required to process untimely grievances.
In light
of
the above discussion, the Board affirms the ALJ's findings that the County
has unlawfully refused to process MacArthur's grievance in violation
ofMMBA
section 3505
and PERB Regulation 32603(c), also resulting in derivative violations
ofMMBA
sections
3506 and 3503, and PERB Regulation 32603(a) and (b).
ORDER
Based on the foregoing findings
of
fact; conclusions
of
law, and the entire record in this
case, it is found that the County
of
Riverside (County) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503, 3505 and 3506 and PERB Regulation 32603(a),
(b) and (c) by unilaterally changing its grievance policy regarding the grievability
of
promotions without providing the Service Employees International Union (SEIU) with prior
notice and the opportunity to bargain.
Pursuant to MMBA section 3509(a), it is hereby ORDERED that the County, its
governing board and its representatives shall:
8

A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with SEIU regarding a change in
policy affecting matters within the scope of representation;
2. 	Unilaterally changing its grievance policy regarding the grievability of
promotions, without giving SEIU prior notice and opportunity to bargain;
3. 	Failing and refusing to process grievances regarding promotions,
including the grievance filed by SEIU on behalf of Carmella Bea MacArthur on June 8, 2001,
pursuant to the parties' agreed-upon grievance procedures.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays after service of a final decision in this matter,
process the grievance filed by SEIU on behalf of Carmella Bea MacArthur on June 8, 2001,
and process all other grievances filed by SEIU regarding promotions, pursuant to the parties'
agreed-upon grievance procedures;
2. 	Post copies of the Notice to Employees attached hereto as an Appendix,
signed by an authorized agent of the County, at all work locations where notices to employees
are customarily posted. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced or covered with any other material;
3. 	Written notification of the actions taken to comply with this Order shall
be made to the Sacramento Regional Director of the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on SEIU.
9

It is further ordered that the proposed decision in the unfair practice charge in Case No.
LA-CE-5-M is hereby AFFIRMED.
Members Baker and Neima joined in this Decision.
10

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5-M, Service Employees
International Union v. County of Riverside, in which all parties had the right to participate, it
has been found that the County of Riverside violated the Meyers-Milias-Brown Act (MMBA),
Government Code sections 3503, 3505 and 3506 and PERB Regulation 32603(a), (b) and (c)
by unilaterally changing its grievance policy regarding the grievability of promotions without
providing the Service Employees International Union (SEIU) with prior notice and the
opportunity to bargain.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with SEIU regarding a change in
policy affecting matters within the scope of representation;
2. 	Unilaterally changing its grievance policy regarding the grievability of
promotions, without giving SEIU prior notice and opportunity to bargain;
3. 	Failing and refusing to process grievances regarding promotions,
including the grievance filed by SEIU on behalf of Carmella Bea MacArthur on June 8, 2001,
pursuant to the parties' agreed-upon grievance procedures.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Process the grievance filed by SEIU on behalf of Carmella Bea
MacArthur on June 8, 2001, and process all other grievances filed by SEIU regarding
promotions, pursuant to the parties' agreed-upon grievance procedures.
Dated: 	COUNTY OF RIVERSIDE
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DA TE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1997
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5-M
PROPOSED DECISION
(8/21/02)
Appearances: Bob Lathrop, Executive Director, for Service Employees International Union,
Local 1997; Liebert Cassidy Whitmore, by Nate Kowalski, Attorney, for County of
Riverside.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
Service Employees International Union, Local 1997 (SEIU), representing a unit of
employees employed by the County of Riverside (County), filed an unfair practice charge on
August 1, 2001, alleging that the County unlawfully refused to process a grievance. 	On
January 15, 2002, the Office of the General Counsel of the Public Employment Relations
Board (PERB or Board) issued a complaint alleging that the County unilaterally refused to
process the grievance without affording SEIU prior notice or opportunity to bargain, thereby
repudiating the grievance/arbitration provisions of the parties' contract, in violation of sections
3503, 3505, and 3506 of the Meyers-Milias-Brown Act (MMBA) 1 and PERB Regulation
32603(a), (b), and (c).2 In its answer to the complaint, the County denied any wrongdoing.
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 32603 reads in part:

An informal settlement conference held on February 27, 2002 failed to resolve the
matter. A formal hearing was scheduled for June 26, 2002, in Riverside. However, prior to
the opening
of
the hearing, and in lieu
of
a hearing, the parties stipulated that the record would
consist
of
the contents
of
the case file, which contains statements
of
the parties' positions as
well as documents attached thereto.
After the filing
of
briefs, the matter was submitted for decision on August
8,
2002.
FINDINGS
OFF
ACT
It
is undisputed that the County is a public agency within the meaning
of
MMBA
section 3501(a), and SEIU is a recognized employee organization within the meaning
of
section 3501(b). Based on the parties' stipulations, I find the following facts:
At all relevant times, there has been in effect a memorandum
of
understanding (MOU)
between the parties. Article VI, section 5, entitled Merit Systems/Veterans Preference, reads
in part:
It
shall be an unfair practice for a public agency to do any
of
the
following:
(a) 	Interfere with, intimidate, restrain, coerce or discriminate
against public employees because
of
their exercise
of
rights
guaranteed by Government Code section 3502 or by any local
rule adopted pursuant to Government Code section 3507.
(b) 	Deny to employee organizations rights guaranteed to them
by Government Code section 3503, 3504.5, 3505.l, 3505.3,
3508(c) or 3508.5 or by any local rule adopted pursuant to
Government Code section 3507.
(c) 	Refuse or fail to meet and confer in good faith with an
exclusive representative as required by Government Code section
3505 or any local rule adopted pursuant to Government Code
section 3507.
2

The Human Resource Administration under this Memorandum
is designated a merit system. Appointments, promotions,
demotions, transfers and dismissals shall be made on the basis
of
merit and ability. Each officer shall appoint all necessary
employees allowed for their department by this Memorandum
only from among persons certified to them by the Human
Resources Director as eligible for the respective positions. The
Human Resources Director shall determine the methods
of
evaluating the qualifications
of
applicants. The methods shall be
practical in nature and may involve any combination
of
written
test, oral test, performance test, rating
of
education, training and
expenence.
Article XIII, entitled Grievance Procedure, reads in part:
Section
2.
	Grievance Definition. A "grievance" is the
subject
of
a written request or complaint, which has not been
settled as a result
of
the discussion required by Section
1,
initiated by an employee, arising out
of
a dispute by an employee
or group
of
employees concerning the application or
interpretation
of
the specific terms and conditions set forth in this
Memorandum
of
Understanding, Ordinance, rule, regulation, or
policy concerning wages, hours, and other terms and conditions
of
employment. All other matters are excluded from the
grievance procedure including, but not limited to:
A. 	Matters reviewable under some other County
administrative procedure ...
B. 	Requests or complaints, the solution
of
which
would require the exercise
of
legislative power, such as the
adoption
of
...
[a] policy established by the Board
of
Supervisors.
C. 	Requests or complaints involving ... the termination,
suspension, demotion or written reprimand
of
a regular employee
reviewable pursuant to other provisions
of
this Memorandum or
reviewable under the State Approved Local Merit System.
On June 8, 2001, SEIU, on behalf
of
unit employee Carmella Bea MacArthur
(MacArthur), filed a grievance alleging the County's violation of Article VI, section 5
of
the
MOU. The grievance complained that the County awarded a full-time Radiology Specialist
position to a per diem employee instead of to MacArthur, a full-time employee, and that
3

MacArthur was not given adequate training for the position. By letter
of
June 21, 2001, the
County responded as follows:
We are unable to process the above-referenced Grievance
Petition because the issue
of
promotion is not grievable.
In support
of
its charge,
SETIJ
provided the job description and qualifications for the
various Radiologic Technician classifications, placing particular emphasis on the following
language:
Class Characteristics
The objective
of
this series is to establish a career ladder
which provides professional growth through the
performance
of
increasingly responsible and complex
assignments and to recognize professional development
and expertise attained through education and experience.
(Emphasis added.)
For its part, the County relies on Article VI, section 5 which states, inter alia, "[T]he
Human Resources Director shall determine the methods
of
evaluating the qualifications
of
applicants." The County contends this language shows the parties' agreement that evaluation
of
candidates for promotion is solely a management function, and that all the requirements
of
the MOU and the Merit System procedure were followed in making the promotion at issue.
The County also contends that because the Board
of
Supervisors adopted the MOU, the
County's discretion regarding promotions cannot be changed without the re-adoption
of
the
MOU, thus such discretion is excluded from the grievance procedure by Article XIII,
section 2(B)
of
the MOU.
In support
of
its position, the County submitted as an exhibit a 1995 arbitration award
based on a promotion grievance brought in 1994 by another union alleging the County's
violation of a merit system provision, virtually identical to the instant one, contained in its
MOU with that union. The arbitrator denied the grievance on the basis that there was no
4

evidence
of
irregularity regarding the list
of
candidates from which the County made its
selection. There is no evidence
of
a bargaining history between the County and SEIU
regarding promotion grievances.
ISSUE
Did the County unilaterally change its policy regarding grievances in violation
of
the
MMBA and PERB regulations?
CONCLUSIONS OF LAW
In determining whether a party has promulgated or implemented an unlawful unilateral
change in employees' terms and conditions
of
employment, 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: (1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters v. City
of
Vernon (1980) 107 Cal.App.3d 802 [165 Cal. Rptr. 908]; Walnut Valley Unified School
District (1981) PERB Decision No. 160; San Joaquin Co. Employees Assn.
v.
City
of
Stockton (1984) 161 Cal.App.3d 813 [207 Cal.Rptr. 876]; Grant Joint Union High School
District (1982) PERB Decision No. 196 (Grant).)
Applying these criteria, PERB has consistently held that promotions are matters within
the scope
of
representation. (E.g., Healdsburg Union High School District (1984) PERB
Decision No. 375; San Mateo School District (1984) PERB Decision No. 375 [both cases
interpreting the Educational Employment Relations Act].) The California Supreme Court has
taken the same position. In Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116
5

Cal.Rptr. 507], the court, relying on National Labor Relations Board cases as precedent, held
that promotions affect unit employees' opportunities for advancement and therefore relate to
the "terms and conditions
of
employment" over which the employer was required to bargain
under the MMBA. 3 And in Pacific Legal Foundation
v.
Brown (1981) 29 Cal.3d 168 [172
Cal.Rptr. 487], the court held that there is no constitutional conflict between the collective-
bargaining process required by the State Employer-Employee Relations Act4 and the state's
merit system for hiring and promotion.
In the instant case, it is undisputed that the County acted without affording SEIU prior
notice or opportunity to bargain. However, the County argues that it did not change any
"policy," as its conduct affects only the MacArthur grievance. In Grant, the Board held that a
change in the terms
of
a collective bargaining agreement which has
"a
generalized effect or
continuing impact upon the terms and conditions
of
employment
of
bargaining unit members,"
is not merely a contractual breach, but is a change in policy. Thus, the employer's change in
one employee's shift, in reliance on the contractual management rights clause, was held to be
an unlawful change in policy. (Hacienda LaPuente Unified School District (1997) PERB
Decision No. 1186. See also Moreno Valley Unified School District (1995) PERB Decision
No. 1106 [changes in two employees' shifts].) Here, the County, at least in 1994 with regard
to a similar MOU, recognized the grievability
of
promotion complaints, as evidenced
by
the
1995 arbitration decision described above. However, in its June 21, 2001, letter to SEID, the
County took a different position, stating that "the issue
of
promotion is not grievable." I find
3 MMBA section 3504 provides that 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
....
"
4 Now known as the Ralph C. Dills Act.
6

this language sufficiently broad as to constitute not merely its rejection of a single grievance,
but a change in its grievance policy, one which is likely to have a generalized effect and
continuing impact on unit members' opportunities for advancement, especially those in the
Radiology series who have a contractual right to a "career ladder." (Firefighters Union v. City
of Vallejo, supra, 12 Cal.3d 608.)
Contrary to the County's contentions, I find nothing in the MOU to privilege such a
change in policy. Article XII, Grievance Procedure, section 2C, excludes complaints involving
termination, suspension, demotion or written reprimand reviewable under the state-approved
local merit system procedure, but there is nothing which excludes complaints regarding
promotions.5 Further, while Article VI, section 5, Merit System, gives the County discretion to
evaluate and select candidates for promotion, it also requires the County to promote on the
basis of "merit and ability" and to follow the stated procedural guidelines.6 In the instant case,
the MacArthur grievance would allow SEIU to complain that the County abused its discretion,
and there is no language in the MOU which insulates the County against such a claim.
Accordingly, I find the County's conduct to constitute a refusal to meet and confer in
good faith with SEIU in violation ofMMBA section 3505 and PERB Regulation 32603(c). I
also find that by its conduct the County has interfered with the rights of unit employees to be
5 As to the County's argument regarding exclusion from the grievance procedure
because the Board of Supervisors adopted of the MOU, I find this argument convoluted. There
is nothing in the unfair practice charge, or in the complaint, or in my decision, which suggests
any change in the MOU, other than a return to the status quo. Thus, there would be no reason
for any readoption of the MOU.
In its post-hearing brief, the County relies on the proposed decision in PERB Case
No. SA-CE-404, California School Employees Association and its Chico Chapter #110 v.
Chico Unified School District (1982) 6 PERC 13063 (reversed by the Board on other grounds,
Chico Unified School District (1983) PERB Decision No. 286). However, Chico is neither
precedential nor is it on point, as it deals with the make-up of a promotion selection committee.
Accordingly, I find it inapplicable to the instant case.
7

represented
by
SEIU in violation
of
MMBA section 3506 and PERB Regulation 32603(a), and
has denied SEIU its right to represent bargaining unit employees in violation
of
MMB section
3503 and PERB Regulation 32603(b ).
REMEDY
Pursuant to sections 3509(a) and 3541.3(i), PERB is given the power:
To investigate unfair practice charges or alleged violations
of
this
chapter, and take any action and make any determinations in
respect
of
these charges or alleged violations as the board deems
necessary to effectuate the policies
of
this chapter.
Here, the County violated the MMBA by unilaterally changing its grievance policy
regarding the grievability
of
promotions without providing SEIU with prior notice and
opportunity to bargain.
	By
these actions, the County violated MMBA sections 3503, 3505, and
3506 and PERB Regulations 32603(a), (b), and (c).
The ordinary remedy in unilateral change cases is an order directing the respondent to
cease and desist from continuing to promulgate or implement the unlawful change, and to
rescind the change and return to the status quo. It is also the ordinary remedy that the
respondent be ordered to post a notice incorporating the terms
of
the order. It effectuates the
purposes
of
the MMBA that employees be informed by a notice, signed by an authorized agent,
that the respondent has acted unlawfully, is being required to cease and desist from its
unlawful activity and will comply with the order.
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, it is found that on or about June 21, 2001, the County
of
Riverside (County)
violated the Meyers-Milias-Brown Act (MMBA or Act), Government Code sections 3503,
3505, and 3506, and California Code of Regulations, title 8, section 32603(a), (b), and (c), by
8

unilaterally changing its grievance policy regarding the grievability of promotions without
providing Service Employees International Union, Local 1997 (SEIU) with prior notice and
opportunity to bargain. Therefore, pursuant to Government Code sections 3509(a) and
3541.S(c), it is hereby ORDERED that the County, its governing board and its representatives,
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with SEIU regarding a change in
policy affecting matters within the scope of representation;
2. 	Unilaterally changing its grievance policy regarding the grievability of
promotions, without giving SEIU prior notice and opportunity to bargain;
3. 	Failing and refusing to process grievances regarding promotions,
including the grievance filed by SEIU on behalf Carmella Bea MacArthur on June 8, 2001,
pursuant to the parties' agreed-upon grievance procedures.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays after service of a final decision in this matter,
process the grievance filed by SEIU on behalf of Carmella Bea MacArthur on June 8, 2001,
and process all other grievances filed by SEIU regarding promotions, pursuant to the parties'
agreed-upon grievance procedures.
2. 	Post copies of the Notice to Employees attached hereto as an Appendix,
signed by an authorized agent of the County, at all work locations where notices to employees
are customarily posted. 	Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced or covered with any other material;
9

3. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the Sacramento Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
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 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of California Code of Regulations, title 8,
section 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, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
10

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,
secs. 32300, 32305,
32140, and 32135(c).)
Q,=
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"
Ann L. Wemman
Administrative Law Judge
11