South Placer Fire Protection District (PERB 1960M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SOUTH PLACER FIRE ADMINISTRATIVE
OFFICERS ASSOCIATION,
Charging Party,
V.
SOUTH PLACER FIRE PROTECTION
DISTRICT,
Respondent.
Case No. SA-CE-380-M
PERB Decision No. 	1960-M
June 10, 2008
Appearances: 	Carroll, Burdick and McDonough by Gary M. Messing and Jason H. Jasmine,
Attorneys, for South Placer Fire Administrative Officers Association; Pinnell and Kingsley by
Paul R. Gant, Attorney, for South Placer Fire Protection District.
Before McKeag, Wesley and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the South Placer Fire Protection District
(District) to an administrative law judge's (ALJ) proposed decision. In the proposed decision,
the ALJ held that the District violated the Meyers-Milias-Brown Act (MMBA), 1 sections 3503
and 3505, and PERB Regulation 32603(a), (b) and (c),2 when it unilaterally removed the Fire
Marshall classification from the Battalion Chiefs bargaining unit represented by the South
Placer Fire Administrative Officers Association (SPF AOA). The ALJ held that this action
1MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2PERB regulations are codified at California Code of Regulations, title 8,
section 3100 I et seq.

violated the District's duty to meet and confer with SPFAOA before removing bargaining unit
work from the Battalion Chiefs bargaining unit.
The Board has reviewed the entire record in this case, including but not limited to
SPF AOA's unfair practice charge, the District's position statement, the complaint and the
District's answer, the hearing transcripts and exhibits, the parties' post-hearing briefs, the
ALJ's proposed decision, the District's exceptions and supporting brief, and SPFAOA's
response thereto. Based upon this review, the Board affirms the ALJ's proposed decision and
order consistent with the discussion below.
Neither party has excepted to the ALJ's finding that SPFAOA did not fail to exhaust its
administrative remedies. 	Accordingly, we affirm the ALJ's decision on that issue but not the
rationale underlying it. Thus, the ALJ's decision on the exhaustion
of
administrative remedies
issue remains binding upon the parties, but shall have no precedential effect with respect to
other cases. (PERB Regs. 32215 and 32300(c).)
BACKGROUND
On October
1,
2003, the District formally recognized SPF AOA as the exclusive
representative
of
a bargaining unit containing three positions: Shift Battalion Chief,
Emergency Medical Services Administrator and Fire Marshall. All three
of
these positions
were within the Battalion Chief job classification. The District's recognition letter stated with
respect to the Fire Marshall position:
This position is included in the bargaining unit requested
by the Association, but only for so long as the job
description adopted by the Governing Board of the
District continues to include a requirement that the Fire
Marshall act as a Duty Chief and the employee remains
qualified to act as a Duty Chief. The ability to act as a
duty chief is the unifying characteristic of a bargaining
unit consisting of Battalion Chiefs. Thus, the Fire
2

Marshall position may remain in the Battalion Chief
bargaining unit so long
as
he/she
is
required to act
as
a
Duty Chief. 	[Underlining in original.]
When acting
as
Duty Chief, the Battalion Chief directly supervises all firefighting operations
during a particular 24-hour shift. At the time
of
SPFAOA's recognition and for over a year
thereafter, Fire Marshall Keith Burson (Burson) acted as Duty Chief on a regular basis.
On February 24, 2004, the District revised the Fire Marshall job description. The new
description said that the Fire Marshall, "[i]f deemed qualified, and authorized by the Fire
Chief, may act as a Shift Battalion Chief. "3 However, the revised job description did not
eliminate the requirement that the Fire Marshall act as Duty Chief.4 Both Burson and his
successor as Fire Marshall, Lawrence Bettencourt (Bettencourt), continued to serve as Duty
Chief from February 24, 2004 through June 28, 2006.
The District and SPFAOA signed a memorandum
of
understanding (MOU) on February
2, 2005. Section
7.1
of
the MOU provides that SPFAOA is the exclusive representative
of
all
employees in the classifications listed in Exhibit A, Salary Schedule. Exhibit A sets forth the
salary steps for the Fire Marshall position. MOU section 4.2.1 establishes that the Fire
Marshall is Fair Labor Standards Act (FLSA) exempt and receives 96 hours
of
administrative
leave. Further, Section 17.1
of
the MOU states that "the specific provisions contained in this
MOU shall prevail over District policies, practices and procedures to the extent
of
a conflict."
3The District excepted to the ALJ' s finding that the term Duty Chief is synonymous
with Shift Battalion Chief. The record clearly shows that when acting as a Duty Chief, the Fire
Marshall performs the duties of a Shift Battalion Chief. Therefore, this exception is without
merit.
4The ALJ made this finding after weighing the conflicting testimony given at hearing.
We defer to the ALJ' s finding because it is based on the ALJ' s evaluation of witness
credibility. (Oakland Unified School District (2007) PERB Decision No. 1880.)
3

Finally, MOU Section 19.2 provides that the MOU "shall not be amended or supplemented
except by agreement
of
the Parties which has been reduced to writing and signed by each."
In March 2005, SPFAOA learned that the District was negotiating terms and conditions
of
employment directly with Bettencourt. In response to SPF AOA' s letter asking the District
to cease direct negotiations with Bettencourt, the District stated that it believed the Fire
Marshall position was no longer in the SPF AOA bargaining unit. 	This began a series
of
communications between the District and SPF AOA on the Fire Marshall issue. The parties
began negotiations for a successor MOU in June 2005. In August 2005, each party made a
written proposal aimed at removing the Fire Marshall from the bargaining unit. 	However,
because the parties did not reach agreement on the issue, no change was made to the existing
MOU.
On September 17, 2005, the Fire Chief recommended to the District's governing board
that the Fire Marshall be reclassified to Assistant Chief with no change in duties. The
Assistant Chief classification is not within the Battalion Chiefs bargaining unit. The District's
Board
of
Directors approved the
Chiefs
recommendation on September 21, 2005. 	SPFAOA
filed the instant unfair practice charge on January 6, 2006.
DISCUSSION
Unilateral Change
It is undisputed that on September 21, 2005, the District reclassified the Fire Marshall
position to Assistant Chief, a non-bargaining unit classification, without providing SPFAOA
the opportunity to meet and confer over the change. Because the reclassification was within
the scope of representation, and therefore subject to the meet and confer requirement, the
District violated the MMBA by unilaterally removing the Fire Marshall position, and its
associated bargaining unit work, from the Battalion Chiefs bargaining unit.
4

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.)5 Unilateral changes are considered
"per se" violations if: 	(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 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.)
The transfer
of
work from bargaining unit employees to those in a different or no
bargaining unit is a subject within the scope
of
representation. 	(Building Material &
Construction Teamsters' Union v. Farrell ( 1986)
41
Cal.3d 651 [224 Cal.Rptr. 688] (Farrell);
Rialto Unified School District (1982) PERB Decision No. 209.) Accordingly, PERB has held
that an employer may not unilaterally convert a bargaining unit classification to a non-unit
classification and thereby remove work from a unit during the life
of
a collective bargaining
agreement. (Regents
of
the University
of
California (1989) PERB Decision No. 722-H.)
The District argues in its exceptions that it had no duty to meet and confer with
SPFAOA because the Fire Marshall position was not in the Battalion Chiefs bargaining unit at
the time the position was reclassified to Assistant Chief. However, the plain language
of
the
5When 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 [116
Cal.Rptr. 507].)
5

MOU indicates otherwise. If the language
of
a collective bargaining agreement
is
unambiguous, PERB must give the language its plain meaning. (Trustees
of
the California
State University (1996) PERB Decision No. 1174-H; Marysville Joint Unified School
District (1983) PERB Decision No. 314.) The MOU provides that the classifications listed in
the salary schedule are covered by the MOU. The Fire Marshall classification is listed in the
salary schedule. The MOU further provides that the Fire Marshall is FLSA exempt and
receives 96 hours
of
administrative leave. Most importantly, the MOU places no conditions or
limitations on the Fire Marshall's inclusion in the bargaining unit. Additionally, by its terms,
the MOU remained in effect until December 31, 2005. 	Thus, when the District reclassified the
Fire Marshall on September 21, 2005, the Fire Marshall position was clearly included in the
Battalion Chiefs bargaining unit under the applicable MOU. Accordingly, the District violated
the MMBA by removing the Fire Marshall, and the bargaining unit work he performed, from
the Battalion Chiefs bargaining unit without providing SPF AOA the opportunity to meet and
confer over the removal.
Notwithstanding the plain language
of
the MOU, the District argues that the Fire
Marshall was not in the bargaining unit at the time
of
the reclassification because, as
of
February 24, 2004, the District no longer required the Fire Marshall to serve as Duty Chief.
According to the District, the MOU incorporated the October 1, 2003 recognition letter's
language that the Fire Marshall remained in the unit only so long as the position was required
to serve as Duty Chief. Thus, the District argues, as
of February 24, 2004, when the District's
Board of Directors changed the position's job description to say that the Fire Marshall may
serve as Duty Chief, the Fire Marshall ceased to be included in the bargaining unit.
As discussed previously, the MOU places no conditions or limitations on the Fire
Marshall's inclusion in the bargaining unit. Furthermore, even if the MOU was ambiguous on
6

the issue, there is no evidence in the record that during MOU negotiations the parties discussed
placing conditions on the Fire Marshall's inclusion in the unit. 	(See Los Angeles Unified
School District (1984) PERB Decision No. 407 [PERB may consider bargaining history in
interpreting ambiguous contract language].) Accordingly, there is no basis for concluding that
the MOU incorporated the conditions from the October
1,
2003 letter. Moreover, the MOU
explicitly states that its provisions prevail over contrary District policies or practices. Thus,
the MOU's unconditional inclusion
of
the Fire Marshall in the bargaining unit trumps the
District's prior conditional inclusion policy. Finally, the record shows that the February 2004
job description revision did not change the Fire Marshall's job duties because the Fire Marshall
continued to serve as Duty Chief after the job description was revised. 	All
of
these findings
further support the Board's conclusion that the Fire Marshall was included in the Battalion
an	Chiefs bargaining unit and therefore the District's reclassification
of
the position constituted
unlawful unilateral transfer
of
bargaining unit work.
The District further argues that it had no duty to meet and confer over the
reclassification because the decision to reclassify "falls purely within the District's managerial
prerogative." In support
of
this argument, the District cites to various sections
of
its
Employer-Employee Relations Resolution (EERR) that purportedly give the District the
exclusive right to reclassify employees.6 However, in Farrell, the California Supreme Court
held that similar provisions in a city charter did not exempt the city from the MMBA's meet
and confer requirements when transferring work outside
of
the bargaining unit. (Farrell, at
6Section 3.C. of the EERR allows the Fire Chief to modify the existing bargaining unit
when changes to a position "may possibly" have eliminated the community of interest between
that position and the rest of the positions in the unit. Section 3.C. requires that the Chief meet
and consult with the appropriate union before making such a unit modification. Since the
District did not consult with SPF AOA before removing the Fire Marshall from the Battalion
Chiefs bargaining unit, EERR Section 3.C. provides no support for the District's action.
7

p. 668.) Moreover, there is no language in the MOU granting the District the right to reclassify
employees without meeting and conferring over the reclassification. Accordingly, the District
had no management prerogative to unilaterally reclassify the Fire Marshall to a classification
outside
of
the Battalion Chiefs bargaining unit.
Finally, the District argues that SPF AOA waived its right to bring an unfair practice
charge by agreeing that the Fire Marshall was outside
of
the bargaining unit. This argument
relies on an August
8,
2005 letter from SPF AOA representative Joan Elliott (Elliott) to the
District's Board
of
Directors. However, when viewed in context, the letter does not support
the District's argument. In June 2005, the parties began negotiations for a successor MOU.
The August
8,
2005 letter lists the conditions under which SPF AOA would agree to remove the
Fire Marshall from the Battalion Chiefs bargaining unit. The letter concludes: "We look
forward to the completion
of
our contract negotiations in the very near future." Nowhere does
the letter indicate that SPF AOA agreed to the removal at that time. Rather, the letter is merely
a proposal in the parties' ongoing MOU negotiations. Indeed, on August 15, 2005, the
District's attorney responded to Elliott with clarifications
of
the conditions for removal.
Further, MOU section 19.2 provides that the MOU can only be modified by a document
signed by both parties. The record is devoid of any document signed by both parties in which
SPF AOA agreed to remove the Fire Marshall from the bargaining unit. 	Consequently, because
SPF AOA never agreed to remove the Fire Marshall from the Battalion Chiefs bargaining unit,
the union did not waive its right to bring the instant unfair practice charge.
Statute of Limitations
The District also excepts to the ALJ' s finding that the instant unfair practice charge was
filed within the six-month statute oflimitations period. The Board affirms the ALJ's finding
8

because SPFAOA filed the charge less than six months after it learned
of
the District's clear
intent to remove the Fire Marshall position from the Battalion Chiefs bargaining unit.
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 & Vector Control Dist. v. California Public Employment
Relations Bd. (2005) 35 Cal.4th 1072 [29 Cal.Rptr.3d 234].) The limitations period begins to
run once the charging party knows, or should have known,
of
the conduct underlying the
charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177.) The
statute
of
limitations
is
an affirmative defense which has been raised by the respondent in this
case. 	(Long Beach Community College District (2003) PERB Decision No. 1564.)
The District argues that SPF AOA "was specifically aware
of
the District's
determination to consider the Fire Marshall outside the bargaining unit no later than March 10,
2005" and thus was required to file its unfair practice charge by September 10, 2005. In a
unilateral change case such
as
this one, the statute
of
limitations begins to run "when the
charging party has actual or constructive notice
of
a clear intent to implement the action which
constitutes the basis
of
the unfair practice charge." (Los Angeles Unified School District
(1996) PERB Decision No. 1181.) The District relies on the fact that it consistently told
SPF AOA as early as March 2005 that it considered the Fire Marshall position to be outside of
the bargaining unit. However, the communications between SPF AOA and the District on this
issue between March 2005 and August 2005 show that there was a genuine dispute over the
Fire Marshall's inclusion in the unit. Moreover, the August letters between the parties indicate
that they were attempting to reach agreement on the issue as part of ongoing contract
negotiations. None of these letters communicated to SPF AOA the District's clear intent to
reclassify the Fire Marshall position to Assistant Chief. In fact, as the record demonstrates,
9

SPF AOA did not have notice
of
the District's clear intent to implement until the District's
Board
of
Directors formally approved the reclassification on September 21, 2005. Thus,
SPF AOA had until March 21, 2006 to file an unfair practice charge based on the
reclassification. 	SPFAOA's filing
of
its charge on January 6, 2006, therefore was well within
the six-month statute
of
limitations.
CONCLUSION
Based on the foregoing, the Board finds that the District violated MMBA sections 3503
and 3505, and PERB Regulation 32603(a), (b) and (c), by removing the Fire Marshall position
from the Battalion Chiefs bargaining unit without providing SPF AOA the opportunity to meet
and confer over the reclassification. The Board also finds that the instant unfair practice
charge was timely filed because SPF AOA filed the charge within four months
of
receiving
notice
of
the District's clear intent to remove the Fire Marshall position from the bargaining
unit.
ORDER
Based on the entire record in this case, it has been found that the South Placer Fire
Protection District (District) violated the Meyers-Milias-Brown Act (MMBA), Government
Code sections 3503 and 3505, and Public Employment Relations Board (PERB) Regulation
32603(a), (b) and (c) (Cal. Code
of
Regs., tit.
8,
sec. 31001 et seq.), when it unilaterally
removed the Fire Marshall classification from the Battalion Chiefs bargaining unit represented
by the South Placer Fire Administrative Officers Association (SPFAOA).
Pursuant to the Government Code, MMBA section 3509(a) and EERA section
3541.3(i), it is hereby ORDERED that the District, its governing board and its representatives
shall:

A.	
CEASE AND DESIST FROM:
1.	
Refusing to negotiate in good faith with SPF AOA by unilaterally
reclassifying the Fire Marshall, a bargaining unit position, to Assistant Chief, a non-bargaining
unit position, and thereby transferring bargaining unit work out
of
the unit;
2.	
Interfering with the right
of
employees to be represented by SPF AOA by
the conduct described in paragraph A.1. above;
3.	
Denying SPF AOA the right to represent its members by the conduct
described in paragraph
A.
I. above.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES
OF
THE MMBA:
1.	
Make employees and SPF AOA whole for any losses suffered as a result
of
the conduct described in paragraph
A.
I. above;
2.	
Return to the status quo that existed at the time the District took the
action described in paragraph A.1. above;
3.	
Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily posted,
copies
of
the Notice attached hereto. The Notice must be signed by an authorized agent
of
the
District, indicating the District will comply with the terms
of
this Order. 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.
4. 	Written notification of the actions taken to comply with the Order to the
General Counsel of PERB, or the General Counsel's designee. The District shall provide
11

reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on SPF AOA.
Members McKeag and Wesley joined in this Decision.
12

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. SA-CE-380-M, South Placer Fire
Administrative Officers Association v. South Placer Fire Protection District, in which all
parties had the right to participate, it has been found that the South Placer Fire Protection
District (District) violated the Meyers-Milias-Brown Act (MMBA), Government Code sections
3503 and 3505, and California Code
of
Regulations, title 8, section 32603(a), (b) and (c) when
it unilaterally removed the Fire Marshall classification from the Battalion Chiefs bargaining
unit represented by the South Placer Fire Administrative Officers Association (SPFAOA).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Refusing to negotiate in good faith with the SPF AOA by unilaterally
reclassifying the Fire Marshall, a bargaining unit position, to Assistant Chief, a non-bargaining
unit position, and thereby transferring bargaining unit work out
of
the unit;
2. 	Interfering with the right
of
employees to be represented by SPF
AOA by
the conduct described in paragraph A. l. above;
3. 	Denying SPFAOA the right to represent its members by the conduct
described in paragraph A.
l.
above.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
I. 	Make employees and SPF AOA whole for any losses suffered as a result
of
the conduct described in paragraph A.1. above;
2. 	Return to the status quo that existed at the time the District took the
action described in paragraph A. I. above.
Dated: 	SOUTH PLACER FIRE PROTECTION DISTRICT
---------
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.