City of Whittier (PERB 1761M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

WHITTIER CITY EMPLOYEES ASSOCIATION,

Charging Party, Case No. LA-CE-186-M
V. PERB Decision No. 1761-M
CITY OF WHITTIER, April 8, 2005
Respondent.

Appearances: David Twedell, Staff Representative, for Whittier City Employees Association;
Liebert, Cassidy & Whitmore by Linda Jenson, Attorney, for City of Whittier.

Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Whittier City Employees Association (WCEA) of a Board
agent’s dismissal (attached) of its unfair practice charge. The unfair practice charge alleged
that the City of Whittier (City) violated the Meyers-Milias-Brown Act (MMBA)' by
unilaterally changing its overtime policy.

The Board has reviewed the entire record in this matter, including the unfair practice
charge, the City’s position statement, WCEA’s response to the position statement, the Board
agent’s warning and dismissal letters, WCEA’s appeal, and the City’s response to the appeal.
In light of this review, the Board adopts the Board agent’s dismissal as a decision of the Board

itself subject to the discussion below.

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

BACKGROUND
In the charge, WCEA alleges that the City unilaterally modified it's Standard Operating
Procedure (SOP) No. 21 2 by refusing to grant employees "comp time." SOP 21 provides, in
pertinent part:
It is the policy of the City of Whittier to avoid the necessity of
overtime work whenever possible. If, in the judgment of the
Department Head, work beyond the established work week is
required, such work will be allowed. However, Department
Heads must monitor its usage and compliance with budget
amounts.
TYPE OF COMPENSATION
Whenever possible, compensatory time off should be given as
compensation for overtime worked. In those cases where the
efficient operation of the department would be impaired by the
granting of compensatory time off, overtime work shall be
compensated by overtime pay in accordance with Article X,
Section 12, of the Personnel Rules and Regulations.
All compensation for overtime will be approved by the
Department Head whether compensation is to be paid or the
employee is to be given compensatory time off. Employees are
given the choice of receiving either premium overtime pay or
comp-time accrual for overtime worked. The amount of overtime
cannot exceed budgeted amounts for the department. Department
Heads will be expected to carefully monitor this expense and its
proper usage. 	Overtime should be avoided whenever possible.
On August 30, 2004, the City filed a position statement in response to the charge. The
City asserts that under SOP 21, read as a whole, the Department Head has the ultimate
authority to determine how overtime is paid, noting the portion of SOP 21 that states: "In
those cases where the efficient operation of the department would be impaired by the granting
of compensatory time off, overtime work shall be compensated by overtime pay .... " The
2The most recent version was revised August 4, 1989.
2

City claims that since 1988, the City has interpreted SOP 21 to allow Department Heads to
decide the form of overtime compensation. It is therefore unlikely that WCEA is unaware of
this interpretation and has, up to this time, never objected to the policy. Moreover, SOP 21
was superseded by Article X, Sections 9 and 12 of the City's Personnel Rules and Regulations,
which were negotiated by the parties. Those sections provide, in pertinent part, as follows:
Section 9. 	"Compensatory Time Off': It is the policy of the
City of Whittier to avoid the necessity for overtime work
whenever possible. If work beyond the established work week is
required, such work shall be performed only with prior
authorization of the Department Head.
In those cases where efficient operation of the department would
be impaired by the granting of compensatory time off, overtime
work shall be compensated in accordance with the provisions of
Section 12 of this Article at the discretion of the Department
Head with approval of the City Manager.
Section 12. 	"Overtime Pay": 	Overtime pay may be granted in
lieu of compensatory time off for overtime work, conditioned on
the efficient operation of the department, at the discretion of the
Department Head and with approval of the City Manager, to any
and all employees in the classified service, with the exceptionof
those employees designated by the City as exempt under the Fair
Labor Standards Act (FLSA).
These provisions were the culmination of six years of negotiations between the City
and WCEA resulting in the adoption of the rules in January 1996. According to the City, these
provisions clearly place the decision regarding the form of overtime compensation with the
Department Head with the approval of the City Manager. The City attached documents to its
response that indicate that these rules were negotiated. First, the parties' MOU effective,
July 1, 1995 through June 30, 1998, Section 8H states:
Update Personnel Rules
City and WCEA representatives shall meet and confer and
conclude said process to adopt updated City Personnel Rules and
Regulations by June 1, 1995.
3

Second, by letter dated July 26, 1995 signed by WCEA President Henrene Barris and
WCEA representative Fred Lowe, the parties agreed to the proposed July 5, 1995 update to the
City's Personnel Rules and Regulations.
The City contends that since 1988, the practice has been for Department Heads to
determine whether the efficient operation of their departments justifies compensatory time off
or overtime pay. WCEA has never before grieved this issue and should have been aware of the
practice during negotiations of the Personnel Rules and Regulations. WCEA was aware of the
practice during February 2003, when in a proposal for a successor MOU, WCEA sought to
modify the long-standing practice to provide employees with the option to choose between
compensatory time off or overtime pay. Thus, the City concludes that WCEA waived its right
to object to this practice.
Finally, the City asserts that in negotiations during 2002 over Sections 9 and 12 of the
Personnel Rules and Regulations, WCEA Representative Susan Sturdevant (Sturdevant)
acknowledged that Department Heads had discretion to grant either compensatory time off or
overtime pay. At that time, WCEA did not propose changing this rule. In September 2002, the
City indicated that it would agree to add a paragraph that employees could request either
compensatory time off or overtime pay. This willingness to include such a paragraph is
confirmed in a memo dated September 20, 2002 from Human Resources to Sturdevant.
According to the City, in subsequent correspondence between the parties, WCEA has not
proposed to modify Sections 9 and 12.
On January 6, 2005, instead of an amended charge, WCEA filed a response to the
City's position statement. It points to a July 29, 2002 letter from Human Resources to WCEA
in which the City sent WCEA a proposed consolidation of City documents for review. With
regard to overtime compensation, SOP 21 was proposed to be replaced with Article X,
4

Sections 9 and 12 of the Personnel Rules and Regulations. WCEA notes the statement in the
letter that the consolidation of documents is intended to "reflect current practice." According
to WCEA, this shows that there was no agreement at that time on the issue. WCEA denies that
the alleged change was ever negotiated. WCEA further disagrees with the City's interpretation
of SOP 21. Also attached are two pay stubs showing computation for compensatory time off
and a memo dated November 1, 2002 from Stuart Mcfeely (Mcfeely), the parks maintenance
supervisor, to Senior Park Maintenance Worker, Tim Skobel (Skobel) regarding excess
compilation of compensatory time off. The memo required Skobel to: "either a) request pay
for the hours accrued in excess of the eight-hour limit or b) use the Compensatory time off
prior to May 26, 2002 (sic)." The memo further stated, in pertinent part:
As you will recall, the Director of Parks has directed that Senior
Park Maintenance Workers may accrue up to eight hours of
Compensatory time off. This falls within the Director's
discretion. Please refer to S.O.P. #21 and Personnel Rules and
Regulations Article X., Section #9.
In the dismissal, after evaluating SOP 21 and Article X, Sections 9 and 12 of the
Personnel Rules and Regulations, the Board agent concluded that the City has discretion to
grant compensatory time off or to pay employees for overtime work. Contrary to WCEA's
contention, the November 1, 2002 memo attached to its January 6, 2005 response supports the
notion that the City has exercised discretion in the past regarding the form of payment for
overtime. The Board agent also found that the Personnel Rules and Regulations appear to have
been in effect for some period of time. The Board agent thus concluded that the City has not
made a change in policy.
5

DISCUSSION
In determining whether a party has violated MMBA section 3505 and PERB Regulation
32603(c),3 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. (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 Association 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.)
We agree with the Board agent that WCEA has failed to show that the City has made a
change in policy. It is true that SOP 21 appears to be internally inconsistent. On the one hand,
it vests with the Department Head the authority to allow overtime and to require compensation
for overtime in compliance with Article X, Section 12 of the Personnel Rules and Regulations.
Under Section 12, authority to determine the mode of compensation for overtime rests with the
Department Head, with approval of the City Manager. On the other hand, SOP 21 allows
employees to choose between compensatory time off and overtime pay. Reading SOP 21 and
3PERB Regulations are codified at California Code of Regulations, title 8, section
3 1001, et seq.
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. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr.
507].)
6

Article X, Sections 9 and 12 of the City's Personnel Rules and Regulations5 together,
Department Heads are authorized to determine whether overtime is compensated via
compensatory time off or overtime pay. WCEA argues that the July 29, 2002 letter from
Human Resources indicates a lack of agreement by the parties on this issue. We disagree; that
letter merely suggested a proposed consolidation of City policies for review in order "to
eliminate redundancies, inconsistencies and reflect current practice." In its charge, WCEA
alleges that after receiving this letter:
There were (sic) some discussion between the Association and
the City on t~e consolidation but the parties did not come to
agreement.
However, in the January 6, 2005 response to the City's position statement and in its appeal,
WCEA denies that it negotiated this policy. WCEA cannot have it both ways.
In its January 6 response and on appeal, WCEA refers to a memo dated November 1,
2002 from Mcfeely to Skobel regarding his excess accrual of compensatory time. The memo
clearly states that employees' ability to accrue up to a maximum eight hours of compensatory
time off "falls within the Director's discretion" and refers to SOP 21 and Article X, Section 9
of the Personnel Rules and Regulations. Section 9 states that "overtime work shall be
compensated in accordance with the provisions of Section 12 of this Article [X] at the
discretion of the Department Head with the approval of the City Manager." Contrary to
WCEA's claim, this shows that the City's policy has been to place the authority to determine
how overtime compensation is paid with the Department Head, not the employee.
5We agree with the Board agent's finding that Article X, Sections 9 and 12 of the City's
Personnel Rules and Regulations, appear to have been in effect in their current form for some
time. According to the City, it has been in effect at least since January 1996. WCEA has not
disputed this fact.
7

We therefore find that the facts, as alleged by WCEA, describe a current practice that
confers authority on Department Heads to determine the mode of compensation for overtime
and conclude that there was no change in policy.
ORDER
The unfair practice charge in Case No. LA-CE-186-M is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Shek joined in this Decision.
8

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT IlELATIONS BOARD
Sacramento Regional Office
103 I 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 324-0142
Fax: (916) 327-6377
January 6, 2005
Michael Koskie, Attorney
City Employees Associates
254-B Lindero Avenue
Long Beach, CA 90803
Re: 	Whittier City Employees Association v. City of Whittier
Unfair Practice Charge No. LA-CE-186-M
DISMISSAL LETTER
Dear Mr. Koskie:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 28, 2004. The Whittier City Employees Association (WCEA)
alleges that the City of Whittier violated the Meyers-Milias-Brown Act (MMBA)1 by
unilaterally changing its overtime policy.
I indicated to you in my attached letter dated December 22, 2004, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to December 29, 2004, the charge would be
dismissed.
On or about December 28, I received a telephone call from Robin Nahin. She stated that
Charging Party would provide additional information. I extended the time for filing an
amended charge by one week. On January 3, 2005, I received a facsimile copy of a letter sent
to me on that date by Staff Representative David Twedell.
With the letter, Twedell attached pay stubs and a memorandum from the Park Maintenance
Supervisor that demonstrate that management authorized employee Tim Skobel to "either a)
request pay for the hours accrued in excess of the eight-hour limit orb) use the Compensatory
time off prior to May 26, 2002." The memo also stated
As you will recall, the Director of Parks has directed that Senior
Park Maintenance Workers may accrue up to eight hours of
Compensatory time off. This falls within the Director's
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-186-M
January 6, 2005
Page 2
discretion. Please refer to S.O.P #21 and Personnel Rules and
Regulations Article X., Section #9.
Thus, the information provided with the letter demonstrates that in the past the employer has
exercised its discretion pursuant to SOP 21 anci the Personnel rules as set forth in my letter of
December 22, 2004.
With the letter, Twedell also denies that the personnel rules were ever negotiated. However,
the rules appear to have been an employer policy in effect for some period of time.
The letter does not present sufficient facts to demonstrate that there was a past practice
whereby employees had a absolute choice between overtime pay or compensatory time. Nor
does it demonstrate that the employer has made a unilateral change in policy by using its
discretion .to inform Parks Department employees that they will only be allowed to take
overtime in the form of pay at this time.
Therefore, I am dismissing the charge based on the facts and reasons contained here and in my
December 22 letter.
Right to Appeal
Pursuant to PERB Regulations,2 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing. 	(Regulations 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 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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
2 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-186-M
January 6, 2005
Page 3
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
By~~..;...;..,_;_..;.:...~;.:i...1~-=--;..:.,,4.:.;..~;,_-
Bernard McMonigle
Administrative Law Judge
Attachment
cc: Linda Jenson, Attorney

1

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916)327-6377
December 22, 2004
Michael Koskie, Attorney
City Employees Associates
254-B Lindero Avenue
Long Beach, CA 90803
Re: 	Whittier City Employees Association v. City of Whittier
Unfair Practice Charge No. LA-CE-186-M
WARNING LETTER
Dear Mr. Koskie:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 28, 2004. The Whittier City Employees Association (WCEA)
alleges that the City of Whittier violated the Meyers-Milias-Brown Act (MMBA) 1 by
unilaterally changing its overtime policy.
On October 29, 2004, I discussed this charge with WCEA representative Robin Nahin. She
indicated that she would send more information. However, to date nothing additional has been
received by this office.
You allege that the Parks Department has refused to grant "comp time" to employees in
violation of Standard Operating Procedure No. 21. SOP 21 states in part, "Employees are
given the choice ofreceiving either overtime pay or comp-time accrual for overtime worked."
SOP 21 also states,
Whenever possible, compensatory time off should be
given as compensation for overtime worked. In those
cases where the efficient operation of the department
would be impaired by the granting of compensatory time
off, overtime work shall be compensated by the overtime
pay in accordance with Article X, Section 12, of the
Personnel Rules and Regulations.
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-186-M
December 22, 2004
Page 2
In August 2004, the City responded to this unfair practice charge and included information on
current personnel rules that were negotiated by the City and the WCEA. Article X, section 12
states,
"Overtime Pay": Overtime pay may be granted in lieu of
compensatory time off for overtime work, conditioned on the
efficient operation of the department, at the discretion of the
Department Head and the approval of the City Manager, to any
and all employees in the classified service, with the exception of
those employees designated by the City as exempt under the Fair
Labor Standards Act (FLSA).
The WCEA contends that in this manner the City has made a unilateral change on a matter
within the scope of bargaining.
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c),2 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.)3 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. (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 Association v. City of
Stockton ( 1984) 161 Cal.App.3d 813; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
It appears from both a complete reading of SOP 21 and Section 12 of the personnel rules that
the employer has the discretion to grant compensatory time off or to pay employees for
overtime work. The facts that you have presented with your charge do not demonstrate that the
employer has made a unilateral change in this policy. Accordingly, this charge must be
dismissed.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31 001 et seq.
3 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. (Firefighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

LA-CE-186-M
December 22, 2004
Page 3
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before December 29, 2004, I shall dismiss your
charge. If you have any questions, please call me at the above telephone number.
Bernard McMonigle
Regional Attorney
BMC