City of San Diego (Office of the City Attorney) * * * OVERRULED IN PART by City of Sacramento (2013) PERB Decision No. 2351-M (PERB 2103M)

OVERRULED IN PART by City of Sacramento (2013)
Decision No. 2351-M
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN DIEGO FIREFIGHTERS, LOCAL 145,
I.A.F.F.,
Charging Party,
V.
CITY OF SAN DIEGO (OFFICE OF THE CITY
ATTORNEY),
Respondent.
Case No. LA-CE-294-M
PERB Decision No. 2103-M
March 26, 2010
Appearances: Glaser, Weil, Fink, Jacobs & Shapiro by Joel N. Klevens, Attorney, for
San Diego Firefighters, Local 145, I.A.F.F.; Michael J. Aguirre, City Attorney, for City of
San Diego (Office of the City Attorney).
Before Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the City of San Diego (Office of the City Attorney)
(City) to the proposed decision of an administrative law judge (ALJ). The San Diego
Firefighters, Local 145, I.A.F.F. (Local 145) alleged that the City violated the Meyers-Milias
Brown Act (MMBA)1 and PERB regulations2 when it: (1) requested that Local 145's
international affiliate suspend the Local 145 president because he had been indicted on
criminal charges; (2) requested that the Local 145 bargaining team negotiator step down as he
1 MMBA is codified at Government Code section 3500 et seq. The complaint alleged a
violation of Sections 3502, 3503, 3505, 3506 and 3509(b).
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. The complaint alleged a violation of PERB Regulation 32603(a), (b), (c)
and (d).

2
formerly served as the City's negotiator; (3)	formerly served as the City's negotiator; (3) bypassed Local 145 by seeking employees'	bypassed Local 145 by seeking employees'
rescission
of
their retirement service credit	rescission of their retirement service credit purchases; and (4) unilaterally changed the	purchases; and (4) unilaterally changed the
retirement service	retirement service credit policy. The ALJ dismissed the first two allegations that the City	credit policy. The ALJ dismissed the first two allegations that the City
violated the MMBA by	violated the MMBA by its: (1) request to suspend the Local 145 president; and (2) request that	its: (1) request to suspend the Local 145 president; and (2) request that
the Local 145 negotiator step down.3
the Local 145 negotiator step down.' TThe ALJ found, however, the City unlawfully bypassed	he ALJ found, however, the City unlawfully bypassed
Local 145 and unilaterally changed the retirement service credit policy.	Local 145 and unilaterally changed the retirement service credit policy.
The Board reviewed the	The Board reviewed the proposed decision and the record in light of the City's	proposed decision and the record in light
of
the City's
exceptions, Local 145's response and the 4
exceptions, Local 145's response and the relevant law." Based on this review, the Board	relevant law. 	Based on this review, the Board
affirms the ALJ's bypass violation, but reverses the unilateral change violation.	affirms the ALJ' s bypass violation, but reverses the unilateral change violation.
SUMMARY OF FACTS	SUMMARY OF FACTS
This	This case arises during the severe funding crisis affecting the San Diego City	case arises during the severe funding crisis affecting the San Diego City
Employees'	Employees' Retirement System (SDCERS). The crisis resulted from a series of poor decisions	Retirement System (SDCERS). The crisis resulted from a series
of
poor decisions
by City officials and SDCERS trustees beginning in the late 1990's. The decisions included	by City officials and SDCERS trustees beginning in the late 1990'
s.
	The decisions included
twice	twice delaying the City's contributions to the retirement system, increasing future benefits for	delaying the City's contributions to the retirement system, increasing future benefits for
City employees, and underpricing	City employees, and underpricing employee purchases of retirement service credits. The net	employee purchases
of
retirement service credits. 	The net
effect of these decisions was to grossly underfund the retirement system.	effect
of
these decisions was to grossly underfund the retirement system.
As a result
of
the pension funding crisis, state and federal officials	As a result of the pension funding crisis, state and federal officials initiated civil and	initiated civil and
criminal investigations into the	criminal investigations into the actions of public officials and others. In the midst of the public	actions
of
public officials and others. In the midst
of
the public
.J
Local 145 did not file exceptions to these determinations. Therefore, these allegations	Local 145 did not file exceptions to these determinations. Therefore, these allegations
are dismissed and will not be addressed herein. (PERB Reg. 32300(c).)	are dismissed and will not be addressed herein. (PERB Reg. 32300(c).)
4
The City's request for oral argument is denied. The Board historically denies requests	The City's request for oral argument is denied. The Board historically denies requests
for oral argument when an adequate record has been prepared, the parties had ample	for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues	opportunity to present briefs and have availed themselves
of
that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (Antelope Valley	before the Board are sufficiently clear to make oral argument unnecessary. (Antelope Valley
Health Care District (2006) PERB Decision No. 1816-M; Monterey County Office of	Health Care District (2006) PERB Decision No. 1816-M; Monterey County Office
of
Education (1991) PERB Decision No. 913.)	Education (1991) PERB Decision No. 913.)
2

3
upheaval, Michael Aguirre (Aguirre) campaigned for the Office	upheaval, Michael Aguirre (Aguirre) campaigned for the Office of the City Attorney, vowing	
of
the City Attorney, vowing
to clean up the financial mess	to clean up the financial mess facing the City. After his election, Aguirre initiated a number of	facing the City. After his election, Aguirre initiated a number
of
civil actions attempting to undo some
of
the	civil actions attempting to undo some of the decisions affecting the City and the retirement	decisions affecting the City and the retirement
system. State and federal prosecutors ultimately filed criminal charges against some of the	system. 	State and federal prosecutors ultimately filed criminal charges against some
of
the
SDCERS trustees, including the Local 145 president. It is in this context that the city attorney	SDCERS trustees, including the Local 145 president. It is in this context that the city attorney
took the actions at issue in this case.	took the actions at issue in this case.
3
Effective January 1, 1997, the City implemented a program, pursuant to memorandum	Effective January
1,
1997, the City implemented a program, pursuant to memorandum
of
understandings (MOU) the City negotiated with Local 145 and other City unions, that	of understandings (MOU) the City negotiated with Local 145 and other City unions, that
allowed employees to	allowed employees to purchase up to five years of service credit in the retirement system. The	purchase up to five years
of
service credit in the retirement system. The
benefit was to be revenue neutral for the City. Employees who opted for this benefit were	benefit was to be revenue neutral for the City. Employees who opted for this benefit were
required to pay both the employer and	required to pay both the employer and employee contributions for the additional service credit.	employee contributions for the additional service credit.
The MOU provided that employees were to pay the	The MOU provided that employees were to pay the contributions "in an amount and manner	contributions "in an amount and manner
determined by the San Diego City Employees Retirement System Board to make the System	determined by the San Diego City Employees Retirement System Board to make the System
whole for such time."	whole for such time."
Retirement system staff calculated the service credit "price" for participating	Retirement system staff calculated the service credit "price" for participating
employees, but grossly underestimated the cost of the benefit to the retirement system. As a	employees, but grossly underestimated the cost
of
the benefit to the retirement system. As a
result, employees were allowed to purchase service credit at a price much lower than would	result, employees were allowed to purchase service credit at a price much lower than would
"make	"make the System whole for such time." Several years passed before the retirement system	the System whole for such time." Several years passed before the retirement system
staff realized the extent
of
the underfunding.	staff realized the extent of the underfunding. The SDCERS trustees then delayed several more	The SDCERS trustees then delayed several more
years before they acted to	years before they acted to correct the problem. In 2003, the trustees adjusted the service credit	correct the problem. In 2003, the trustees adjusted the service credit
purchase price, but gave employees three months to complete purchases under the discountedpurchase price, but gave employees three months to complete purchases under the discounted
pricing arrangement.	pricing arrangement.
The city attorney estimated the service credit pricing error cost City taxpayers	The city attorney estimated the service credit pricing error cost City taxpayers
$147 million. After he took office in 2004, Aguirre filed a civil action in an attempt to reverse	$14 7 million. After he took office in 2004, Aguirre filed a civil action in an attempt to reverse

the effects
of
the	the effects of the underpricing of the service credits. In addition, some of the criminal conflict	underpricing
of
the service credits. In addition, some
of
the criminal conflict
of
interest cases pending at the time included	of interest cases pending at the time included civil provisions that could require the reversal of	civil provisions that could require the reversal
of
the	the challenged transactions.	challenged transactions.
On March
7,
2006, the city attorney issued a press	On March 7, 2006, the city attorney issued a press release that stated the purchase of	release that stated the purchase
of
the underpriced service credits was legally unauthorized and violated the City	the underpriced service credits was legally unauthorized and violated the City Charter. The	Charter. 	The
press release announced the City would allow any employee to rescind their purchase
of	press release announced the City would allow any employee to rescind their purchase of
service credits.5
service credits." Aguirre's press release directed employees to the city attorney's website	Aguirre's press release directed employees to the city attorney's website
where the employees could access a form created by the City Attorney's Office to initiate	where the employees could access a form created by the City Attorney's Office to initiate
service credit rescission	service credit rescission requests. The Request to Rescind Purchase of Prospective Service	requests. The Request to Rescind Purchase
of
Prospective Service
Credit Agreement form was posted with instructions that stated:	Credit Agreement form was posted with instructions that stated:
INFORMATIONAL STATEMENT REGARDING	INFORMATIONAL STATEMENT REGARDING
RESCISSION OF PURCHASE OF PROSPECTIVE	RESCISSION OF PURCHASE OF PROSPECTIVE
SERVICE CREDIT AGREEMENT	SERVICE CREDIT AGREEMENT
As you know, the City Attorney has concluded that the purchase	As you know, the City Attorney has concluded that the purchase
of
prospective	of prospective service credit, or airtime, from the San Diego City	service credit, or airtime, from the San Diego City
Employees' Retirement System ('SDCERS') below full cost was	Employees' Retirement System ('SDCERS') below full cost was
not authorized under the law. If you would like to rescind this	not authorized under the law.
If
you would like to rescind this
legally unauthorized purchase, the information below is provided	legally unauthorized purchase, the information below is provided
for	for your benefit. You should, however, consult with an attorney	your benefit. You should, however, consult with an attorney
and a tax and/or other professional of your choosing regarding	and a tax and/or other professional
of
your choosing regarding
the actual tax treatment that will apply in your situation. This	the actual tax treatment that will apply in your situation. 	This
information is	information is not intended to be and should not be taken to be	not intended to be and should not be taken to be
individual tax advice.	individual tax advice.
• 	If you purchased service credit using amounts transferred
	If
you purchased service credit using amounts transferred
from a City-sponsored defined contribution plan (i.e., the	from a City-sponsored defined contribution plan (i.e., the
40l(k) plan or the SPSP), the	401(k) plan or the SPSP), the funds paid to SDCERS	funds paid to SDCERS
could be transferred directly back to the applicable plan.	could be transferred directly back to the applicable plan.
Because	Because the funds would be transferred directly from	the funds would be transferred directly from
SDCERS to the other plan, and would not be made	SDCERS to the other plan, and would not be made
available directly to you, the transaction should not result	available directly to you, the transaction should not result
in any tax to you. These amounts would be taxable when	in any tax to you. These amounts would be taxable when
5
Although Local 145 was the only union to file an unfair practice charge challenging	Although Local 145 was the only union to file an unfair practice charge challenging
the	the city attorney's actions, the press release and website posting were directed toward all City	city attorney's actions, the press release and website posting were directed toward all City
eemployees.	mployees.
4

eventually distributed from the defined contribution plan	eventually distributed from the defined contribution plan
in accordance with the plan's rules.	in accordance with the plan's rules.
• 	If you purchased service credit using after-tax cash
	If
you purchased service credit using after-tax cash
payments, those payments would he refunded to	payments, those payments would he refunded to you. The	you. The
refund will be treated as a distribution from a retirement	refund will be treated as a distribution from a retirement
plan and you will likely be subject to tax on a portion of	plan and you will likely be subject to tax on a portion
of
the refund. The calculation of the taxable portion involves	the refund. The calculation
of
the taxable portion involves
the ratio of after-tax contributions you made to your	the ratio
of
after-tax contributions you made to your
overall SDCERS benefit. It will be necessary to obtain	overall SDCERS benefit. It will be necessary to obtain
additional information from SDCERS to determine your	additional information from SDCERS to determine your
specific	specific tax consequences.	tax consequences.
• 	If you purchased service credit using pre-tax installment
	If
you purchased service credit using pre-tax installment
payments via payroll deduction, you may be able to	payments via payroll deduction, you may be able to
transfer those amounts to a City-sponsored defined	transfer those amounts to a City-sponsored defined
contribution plan, but you will not be	contribution plan, but you will not be permitted to have	permitted to have
the money refunded to you. The direct plan-to-plan	the money refunded to you. The direct plan-to-plan
transfer should not result in any tax to you. Amounts	transfer should not result in any tax to you. Amounts
transferred to a defined contribution plan would be subject	transferred to a defined contribution plan would be subject
to that plan's rules regarding distributions and legal	to that plan's rules regarding distributions and legal
contribution limits and will be taxable when eventually	contribution limits and will be taxable when eventually
distributed to you.	distributed to you.
5
A transfer back to a qualified plan will result in a small	A transfer back to a qualified plan will result in a small
transactional fee charged by the qualified plan administrator.	transactional fee charged by the qualified plan administrator.
This fee would be borne by the requesting employee.	This fee would be borne by the requesting employee.
Accompanying this statement is a written agreement for	Accompanying this statement is a written agreement for
download and execution to commence the PSC reversal request	download and execution to commence the PSC reversal request
process. Employees are	process. Employees are encouraged to review it, obtain	encouraged to review it, obtain
professional advice as needed and desired, execute the document	professional advice as needed and desired, execute the document
if desired, and submit same to SDCERS for implementation.	
if
desired, and submit same to SDCERS for implementation.
Please be aware that SDCERS may deny your request for a	Please be aware that SDCERS may deny your request for a
transfer of your service credit payment to another plan or as a	transfer
of
your service credit payment to another plan or as a
refund to you. SDCERS has taken the position that transfers back	refund to you. 	SDCERS has taken the position that transfers back
to the defined contribution plans such as SPSP and 401(k) cannot	to the defined contribution plans such as SPSP and 401 (k) cannot
be permitted without jeopardizing the tax-qualified status of those	be permitted without jeopardizing the tax-qualified status
of
those
plans. SDCERS has also stated that refunds of your payroll	plans. SDCERS has also stated that refunds
of
your payroll
deposits	deposits are permitted only if you selected the installment	are permitted only
if
you selected the installment
purchase	purchase method and have not made all payments. We are	method and have not made all payments. We are
attempting to	attempting to resolve these matters with SDCERS.	resolve these matters with SDCERS.
(Emphasis	(Emphasis in original.)	in original.)
Neither the city attorney nor any other City official gave advance notice to Local 145	Neither the city attorney nor any other City official gave advance notice to Local 145
about the press release or posting of the rescission documents, or offered to meet and confer	about the press release or posting of the rescission documents, or offered to meet and confer

press release or website posting.
regarding the	regarding the issue. No City employee actually filled out the service credit rescission form or	issue. No City employee actually filled out the service credit rescission form or
otherwise sought to rescind the purchase of service credits as a result of the city attorney's	otherwise sought to rescind the purchase
of
service credits as a result
of
the city attorney's
press release or website posting.
ALJ'S PROPOSED DECISION	ALJ'S PROPOSED DECISION
The ALJ concluded that the city attorney had a right to communicate his views	The ALJ conciuded that the city attorney had a right to communicate his views
regarding the legality
of
the employees' service	regarding the legality of the employees' service credit purchases. The ALJ determined,	credit purchases. The ALJ determined,
however, the city	however, the city attorney went too far and bypassed Local 145 by dealing directly with the	attorney went too far and bypassed Local 145 by dealing directly with the
employees to get them to	employees to get them to relinquish a negotiated benefit. The ALJ rejected the City's claim	relinquish a negotiated benefit. The ALJ rejected the City's claim
that the city attorney's status as an elected official under the City Charter, or any referenced	that the city attorney's status as an elected official under the City Charter, or any referenced
general immunity statutes,	general immunity statutes, authorized the City to ignore bargaining obligations under the	authorized the City to ignore bargaining obligations under the
MMBA. Finally, the ALJ found that by "attempting to change" the service credit purchase	MMBA. Finally, the ALJ found that by "attempting to change" the service credit purchase
policy, the City unilaterally changed the policy	policy, the City unilaterally changed the policy without offering to meet and confer with	without offering to meet and confer with
Local 145.	Local 145.
In its	In its exceptions to the proposed decision, the City argues that the press release and	exceptions to the proposed decision, the City argues that the press release and
website posting were intended to reach all City	website posting were intended to reach all City employees for the purpose of enforcing the	employees for the purpose
of
enforcing the
MOU, and asking for	MOU, and asking for compliance with it. The City further asserts that as an elected official,	compliance with it. The City further asserts that as an elected official,
and chief legal advisor and attorney to the City, the city attorney hasand chief legal advisor and attorney to the City, the city attorney has almost unfettered	almost unfettered
authority to enforce the laws of the City of San Diego, including the MOUs with the respective	authority to enforce the laws
of
the City
of
San Diego, including the MOU s with the respectiv
employee organizations.	employee organizations. Concomitantly, the City argues that the communication was merely	Concomitantly, the City argues that the communication was merely
an	an informational statement that expressed the city attorney's views and opinions for the	informationai statement that expressed the city attorney's views and opinions for the
purpose of enabling informed judgments by all	purpose of enabling informed judgments by all City employees, and was thus protected	City employees, and was thus protected
employer speech.	employer speech.
e
6

DISCUSSION	DISCUSSION
Bypassing the Union	Bypassing the Union
p
f
MMBA section 3505	MMBA section 3505 provides that local government agencies "shall meet and confer in	provides that local government agencies "shall meet and confer in
good faith	good faith regarding wages, hours, and other terms and conditions of employment with	regarding wages, hours, and other terms and conditions
of
employment with
representatives
of
such	representatives of such recognized employee organizations." Additionally, MMBA	recognized employee organizations." Additionally, MMBA
section 3503 provides that	section 3503 provides that "recognized employee organizations shall have the right to	"recognized employee organizations shall have the right to
represent their members in their	represent their members in their employment relations with public agencies."	employment relations with public agencies."
An employer may not communicate proposals to	An employer may not communicate proposals to employees before first submitting	employees before first submitting
them to the exclusive representative, seek to	them to the exclusive representative, seek to bargain directly with employees, or invite them to	bargain directly with employees, or invite them to
abandon their representative to achieve better	abandon their representative to achieve better terms directly from the employer. (Trustees of	terms directly from the employer. (Trustees
of
the California State University (2006) PERB Decision No. 1871-H.) An employer violates the	the California State University (2006) PERB Decision No. 1871-H.) An employer violates the
duty to bargain in good faith	duty to bargain in good faith when it bypasses the exclusive representative to negotiate directly	when it bypasses the exclusive representative to negotiate directly
with employees over	with employees over matters within the scope of representation. (Walnut Valley Unified	matters within the scope ofrepresentation. (Walnut Valley Unified
School District (1981) PERB Decision No. 160 (Walnut Valley).)	School District (1981) PERB Decision No. 160 (Walnut Valley).)
To establish that an employer has unlawfully bypassed the exclusive representative, a	To establish that an employer has unlawfully bypassed the exclusive representative, a
charging party must demonstrate that the employer dealt directly with itscharging party must demonstrate that the employer dealt directly with its employees: (1) to	employees: 	(1) to
create a new policy
of
general application, or (2)	create a new policy of general application, or (2) to obtain a waiver or modification of existing	to obtain a waiver or modification
of
existing
policies	olicies applicable to those employees. (Walnut Valley.) The Board agrees with the ALJ's	applicable to those employees. (Walnut Valley.) The Board agrees with the ALJ's
finding that the city attorney's actions in this matter fall	inding that the city attorney's actions in this matter fall within the second test, thus bypassing	within the second test, thus bypassing
Local 145	Local 145 in derogation of Local 145's right to represent bargaining unit employees.	in derogation
of
Local 145 's right to represent bargaining unit employees.
The City	The City contends that the press release and website posting were merely asking for	contends that the press release and website posting were merely asking for
compliance	compliance with the MOU, not asking employees to relinquish a negotiated right. The City	with the MOU, not asking employees to relinquish a negotiated right. The City
asserts such action was necessary to bring the	asserts such action was necessary to bring the purchases into compliance with the MOU, which	purchases into compliance with the MOU, which
required that	required that the City's share of the cost of the additional service credit be borne by the	the City's share of the cost of the additional service credit be borne by the
7

8
employees. However, the	employees. However, the City focuses on that part of the MOU that provides that the pricing	City focuses on that part
of
the MOU that provides that the pricing
was to "make the System	was to "make the System whole," a provision wholly outside of the control of the employees	whole," a provision wholly outside
of
the control
of
the employees
themselves.	themselves. To make the City "whole," the city attorney sought the employees' complete	To make the City "whole," the city attorney sought the employees' complete
rescission of their purchase of service credits." This action goes beyond correcting the price	rescission
of
their purchase
of
service credits.6 This action goes beyond correcting the price
shortfall and disregards the MOU language that expressly authorizes employee purchases of	shortfaH and disregards the MOU ianguage that expressly authorizes employee purchases
of
service	service credit at a price set by the retirement system.	credit at a price set by the retirement system.
By soliciting	By soliciting employees to rescind their purchase of service credits, made in accordance	employees to rescind their purchase
of
service credits, made in accordance
with the MOU, the City	with the MOU, the City has gone directly to the employees to obtain their waiver of a benefit	has gone directly to the employees to obtain their waiver
of
a benefit
negotiated	negotiated by Local 145, based on the City's subsequent determination that the credits were	by Local 145, based on the City's subsequent determination that the credits were
underpriced to the detriment
of
the	underpriced to the detriment of the City. Consequently, the city attorney's direct request to	City. 	Consequently, the city attorney's direct request to
employees to rescind service credit purchases, constituted bypass of the exclusive	employees to rescind service credit purchases, constituted bypass
of
the exclusive
representative in violation of the MMBA.	representative in violation
of
the MMBA.
The City's argument that the ALJ failed to properly recognize and apply employer	The City's argument that the ALJ failed to properly recognize and apply employer
speech	speech protections to the city attorney's communications is unpersuasive. The Board has held	protections to the city attorney's communications is unpersuasive. The Board has held
that an employer has the right to "express its views on	that an employer has the right to "express its views on employment related matters over which	employment related matters over which
it has legitimate concerns	it has legitimate concerns in order to facilitate full and knowledgeable debate" (Rio Hondo	in order to facilitate full and knowledgeable debate" (Rio Hondo
Community College	Community College District (1980) PERB Decision No. 128 (Rio Hondo).) However,	District (1980) PERB Decision No. 128 (Rio Hondo).) However,
employer speech that goes	employer speech that goes beyond mere expression of opinion or communication of existing	beyond mere expression
of
opinion or communication
of
existing
facts,	facts, but instead advocates or solicits a course of action, is not subject to employer speech	but instead advocates or solicits a course
of
action, is not subject to employer speech
protections. (State
of
California (Department
of
Transportation) (1996)	protections. (State of California (Department of Transportation) (1996) PERB Decision	PERB Decision
No. 1176-S	No. 1176-S (CalTrans).) Furthermore, the Board in Rio Hondo specifically held that	(Ca/Trans).) Furthermore, the Board in Rio Hondo specifically held that
6
Notably, the posted informational statement does not appear to distinguish between	Notably, the posted informational statement does not appear to distinguish between
purchases made before the underpricing was adjusted in 2003, and purchases made ostensibly	purchases made before the underpricing was adjusted in 2003, and purchases made ostensibly
at the appropriate pricing. Rather, the posting solicits City employees to rescind all	at the appropriate pricing. Rather, the posting solicits City employees to rescind all service	service
credit purchases.	credit purchases.
8

(Rio Hondo; fn. omitted.)
protection is afforded to employer speech	protection is afforded to employer speech "provided the communication is not used as a means	"provided the communication is not used as a means
of violating the Act." (Id.) Thus, the Board specifically exempts from protection speech that	
of
violating the Act." (Id.) Thus, the Board specifically exempts from protection speech that
is used as a	is used as a means to commit an unfair labor practice, such as bypassing the exclusive	means to commit an unfair labor practice, such as bypassing the exclusive
representative.	representative.
The	The City argues that pursuant to National Labor Relations Board (NLRB) standards	City argues that pursuant to Nationai Labor Relations Board (NLRB) standards
adopted	adopted by PERB, the ALJ should have examined only whether the city attorney's	by PERB, the ALJ should have examined only whether the city attorney's
communication contained a threat
of
reprisal	communication contained a threat of reprisal or force, or promise of benefit	or force, or promise
of
benefit. 7
.' The City	The City
attempted to substantiate its position by comparing	attempted to substantiate its position by comparing excerpts from the city attorney's website	excerpts from the city attorney's website
posting with excerpts	posting with excerpts from PERB and NLRB case law. The City calls attention to those parts	from PERB and NLRB case law. The City calls attention to those parts
of
the website posting	of the website posting that read, "If you would like to rescind this legally unauthorized	that read,
"If
you would like to rescind this legally unauthorized
purchase" and "[employees are encouraged to review [ the rescission form], obtain
7
In Rio Hondo, a case arising under the Educational Employment Relations Act	In Rio Hondo, a case arising under the Educational Employment Relations Act
(EERA) (Gov. Code $ 3540 et seq.), the Board considered employer speech provisions in the	(EERA) (Gov.
Code§
3540 et seq.), the Board considered employer speech provisions in the
National Labor Relations Act (NLRA) (29 U.S.C. $ 151 et seq.). NLRA section 158(c) states:	National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.). NLRA section 158(c) states:
The	The expressing of any views, argument, or opinion, or the	expressing
of
any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or	dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor	visual form, shall not constitute or be evidence
of
an unfair labor
practice under any
of
the provisions
of
this	practice under any of the provisions of this subchapter, if such	subchapter,
if
such
expression contains no threat of reprisal or force or promise of	expression contains no threat
of
reprisal or force or promise
of
benefit.	benefit.
9
The Board held that although such a provision is absent from EERA, there is a benefit	The Board held that although such a provision is absent from EERA, there is a benefit
from facilitating the free flow of opinions and views. Therefore, the Board determined that	from facilitating the free flow
of
opinions and views. Therefore, the Board determined that
certain	certain types of employer speech is protected. The Board set forth a standard to determine	types
of
employer speech is protected. The Board set forth a standard to determine
when	when employer speech loses its protection:	employer speech loses its protection:
[A]n employer's speech which contains a threat of reprisal or	[A ]n employer's speech which contains a threat
of
reprisal or
force or promise of benefit will be perceived as a means of	force or promise
of
benefit will be perceived as a means of
violating the Act and will, therefore, lose its protection and	violating the Act and will, therefore, lose its protection and
constitute strong evidence	constitute strong evidence of conduct which is prohibited by	
of
conduct which is prohibited by
section 3543.5 of the EERA.	section 3543.5 of the EERA.
(Rio Hondo; fn. omitted.)

10
professional advice as needed and desired,	professional advice as needed and desired, execute the document if desired." The City claims	execute the document
if
desired."8 The City claims
these statements are	these statements are not distinguishable from employer statements found acceptable in cases	not distinguishable from employer statements found acceptable
in
cases
such as Ca/Trans,	such as CalTrans, Perkins Machine Company (1963) 141 NLRB 697 (Perkins Machine Co.),	Perkins Machine Company (1963)
141
NLRB 697 (Perkins Machine Co.),
and Rio Hondo. 	However,	and Rio Hondo. However, the City mischaracterizes or overlooks pertinent findings from each	the City mischaracterizes or overlooks pertinent findings from each
of these cases.	
of
these cases.
In Ca/Trans, the employer distributed a	In CalTrans, the employer distributed a memo to all employees informing them that the	memo to all employees informing them that the
parties were engaged in negotiations for a new	parties were engaged in negotiations for a new contract. The memo notified employees that	contract. The memo notified employees that
upon expiration
of
the contract, agency fee payers were	upon expiration of the contract, agency fee payers were no longer subject to fair share fee	no longer subject to fair share fee
deductions	deductions and union members were not prohibited from withdrawing from the union. The	and union members were not prohibited from withdrawing from the union. 	The
memo also referenced	memo also referenced procedures for withdrawing from the union, including notification to the	procedures for withdrawing from the union, including notification to the
union, and noted that	union, and noted that questions about canceling union membership should be directed to the	questions about canceling union membership should be directed to the
union. The Board found the memo protected employer speech, stating:	umon. The Board found the memo protected employer speech, stating:
[W]here	[W]here employer speech accurately describes an event, and does	employer speech accurately describes an event, and does
not on its face carry the threat
of	not on its face carry the threat of reprisal or force, or promise of	reprisal or force, or promise
of
benefit, the Board will not find the speech unlawful.	benefit, the Board will not find the speech unlawful.
(Id., citing Chula Vista City School District	(Id., citing Chula Vista City School District (1990) PERB Decision No. 834.)	(1990) PERB Decision No. 834.)
The	The City in the instant case argues that the city attorney's press release and website	City in the instant case argues that the city attorney's press release and website
statements did not on	statements did not on their face contain a threat of reprisal or force, or promise of benefit.	their face contain a threat
of
reprisal or force, or promise
of
benefit.
Thus, they are no different	Thus, they are no different from the explanation of procedures to withdraw from the union in	from the explanation
of
procedures to withdraw from the union in
Ca/Trans,	CalTrans, and the City should be entitled to protection. However, the City disregards that part	and the City should be entitled to protection. However, the City disregards that part
of the decision where the Board states:	
of
the decision where the Board states:
8
"The City also argues that admonishments to obtain professional advice contained in	The City also argues that admonishments to obtain professional advice contained in
both the informational statement and the request form establish the nature of the documents as	both the informational statement and the request form establish the nature
of
the documents as
merely informative. This argument is wholly without merit. A routine referral to consult with	merely informative. This argument is wholly without merit. A routine referral to consult with
legal or tax	legal or tax professionals as to the potential tax or other consequences for any individual	professionals as to the potential tax or other consequences for any individual
employee does not serve	employee does not serve to absolve the City from responsibility for directly soliciting action by	to absolve the City from responsibility for directly soliciting action by
the employees.	the employees.
10

p
11
First, the	First, the memos conveying information concerning the right to	memos conveying information concerning the right to
resign from Union	resign from Union membership simply communicate that the	membership simply communicate that the
right exists and do not	right exists and do not advocate a course of action. . . . The facts	advocate a course
of
action. . . . The facts
alleged do not establish that the CalTrans solicited employees to	alleged do not establish that the CalTrans solicited employees to
withdraw from membership, only that the CalTrans informed	withdraw from membership, only that the CalTrans informed
employees of their right to do so.	employees
of
their right to do so.
(Id.; emphasis added.)	(Id.; emphasis added.)
Similarly, in Perkins Machine Co., the employer sent a letter to each employee	Similarly, in Perkins Machine Co., the employer sent a letter to each employee
informing them
of
the 15-day	informing them of the 15-day window set forth in the collective bargaining agreement, during	window set forth in the collective bargaining agreement, during
which they had the right to withdraw from the union, along with the procedures for	which they had the right to withdraw from the union, along with the procedures for
withdrawal. The employer letter in Perkins Machine Co. also advised that:	withdrawal. The employer letter in Perkins Machine
Co.
also advised that:
Whether	Whether you resign from the union, or whether you remain a	you resign from the union, or whether you remain a
member will not make any difference in your wages, benefits,	member will not make any difference in your wages, benefits,
position or treatment by	position or treatment by the Company.	the Company.
. .
We repeat -- the Company is not urging you either to remain a	We repeat
--
the Company is not urging you either to remain a
member of the union or to resign from the union. As far as the	member
of
the union or to resign from the union. As far as the
Company is concerned, that is a matter for each man to decide for	Company is concerned, that is a matter for each man to decide for
himself without pressure from either the Company or the union.	himself without pressure from either the Company or the union.
(Perkins Machine Co. at p. 699.)	(Perkins Machine Co. at
p.
699.)
Here, the NLRB also held the letter was acceptable, noting that it was free from any	Here, the NLRB also held the letter was acceptable, noting that it was free from any
threat
of
reprisal or promise
of	threat of reprisal or promise of benefit. The NLRB found it significant that the letter "ends	benefit. The NLRB found it significant that the letter "ends
with a clear statement of Respondent's neutral position." (Id. at p. 700)	with a clear statement
of
Respondent's neutral position." (Id. at p. 700)
Finally, the City relies heavily on selective findings in Rio Hondo. The City cites	Finally, the City relies heavily on selective findings in Rio Hondo. 	The City cites
language from a memorandum written by the community college superintendent to the	language from a memorandum written by the community college superintendent to the
president of	resident of the faculty association, and argues that the superintendent directly asked union	the faculty association, and argues that the superintendent directly asked union
members to take	members to take action in a manner indistinguishable from the city attorney's plea to City	action in a manner indistinguishable from the city attorney's plea to City
employees. The City again focuses on	employees. The City again focuses on the Board's finding that the superintendent's memos	the Board's finding that the superintendent's memos
contained no "threat of reprisal or force or	contained no "threat of reprisal or force or promise of benefit." (Rio Hondo.) However, the	promise of benefit." (Rio Hondo.) However, the
crux of the	crux of the Board's analysis in Rio Hondo, that protected employer communications are	Board's analysis in Rio Hondo, that protected employer communications are
11

founded upon the expression of views, arguments, or opinions, but are not unlimited. The	founded upon the expression
of
views, arguments, or opinions, but are not unlimited. The
Board stated, "the employer's right to freely express its	Board stated, "the employer's right to freely express its views, arguments or opinions is	vievvs, arguments
or
opinions is
impliedly established by the fact that the employer is prohibited only from engaging in	impliedly established by the fact that the employer is prohibited only from engaging in
negotiations with persons or groups other than the	negotiations with persons or groups other than the exclusive representative." (Id.; emphasis in	exclusive representative." (Id.; emphasis in
original.)	original.) Further, as stated previously herein, protected speech is afforded the employer	Further, as stated previously herein, protected speech is afforded the employer
"provided	"provided the communication is not used as a means of violating the Act." (Id.) Moreover,	the communication is not used as a means
of
violating the Act." (Id.) 	Moreover,
the Board in Rio Hondo, specifically noted that the union in that matter did not have exclusive	the Board in Rio Hondo, specifically noted that the union in that matter did not have exclusive
representative status, so the	representative status, so the Board did not engage in a bypass analysis. The Board held that	Board did not engage in a bypass analysis. The Board held that
"an	"an employer's direct communication with employees may escape protection if it evidences an	employer's direct communication with employees may escape protection
if
it evidences an
employer's attempt to bypass the exclusive representative." (Id.)	employer's attempt to bypass the exclusive representative." (Id.)
In each of the above cases, the employer communicated existing facts, views,	In each
of
the above cases, the employer communicated existing facts, views,
arguments, or opinions, but did not advocate a course of action in circumvention of the	arguments, or opinions, but did not advocate a course
of
action in circumvention
of
the
exclusive	exclusive representative, or otherwise use the communication to commit an unfair labor	representative, or otherwise use the communication to commit an unfair labor
practice.	practice.
12
The same cannot be	The same cannot be said about the city attorney's actions in this case. At hearing, City	said about the city attorney's actions in this case. At hearing, City
Attorney Aguirre testified that:	Attorney Aguirre testified that:
12
SDCERS had taken the position that they were not going to	SDCERS had taken the position that they were not going to
permit anyone to unwind the transactions, that it couldn't be done	permit anyone to unwind the transactions, that it couldn't be done
for tax reasons. We retained counsel to help us figure out how it	for tax reasons. We retained counsel to help us figure out how it
could be done, and we wanted and were hoping that people would	could be done, and we wanted and were hoping that people would
be motivated by a sense of duty to the city to come forward and	be motivated by a sense
of
duty to the city to come forward and
take advantage of this and, . . . actually unwind the transactions.	take advantage
of
this and,
...
actually unwind the transactions.
The press release and website posting themselves stated that "SDCERS may deny	The press release and website posting themselves stated that "SDCERS may deny
requests for refunds" for	requests for refunds" for some types of transactions, and assured employees that "the City	some types
of
transactions, and assured employees that "the City
Attorney's Office is attempting to resolve these matters with SDCERS officials." Therefore,	Attorney's Office is attempting to resolve these matters with SDCERS officials." Therefore,

the City was not merely reporting existing	the City was not merely reporting existing procedures but was actively involved in developing	procedures but was actively involved in developing
the procedures and was taking specific action to	the procedures and was taking specific action to advocate for their success.	advocate for their success.
Furthermore, when asked at hearing	Furthermore, when asked at hearing about the intent and purpose of the rescission	about the intent and purpose
of
the rescission
agreement the city attorney testified:	agreement the city attorney testified:
Q 	So the intent of this agreement, as drafted by your office,	So the intent
of
this agreement, as drafted by your office,
if	if it were agreed to by the employee, was that the employee	it were agreed to by the employee, was that the employee
would rescind his	would rescind his purchase, give us up [sic] years of credit, and	purchase, give us up [sic] years
of
credit, and
get his money back without interest, correct?	get his money back without interest, correct?
AA 	That's what this, in this form, yes.	
That's
what this, in this form, yes.
Therefore, by his own	Therefore, by his own statements, the city attorney was soliciting employees to entirely	statements, the city attorney was soliciting employees to entirely
rescind	rescind a benefit for the good of the City's finances, not merely describing existing rescission	a benefit for the good
of
the City's finances, not merely describing existing rescission
procedures. Giving the document the title	procedures. Giving the document the title "Informational Statement...," does not change the	"Informational Statement ... ," does not change the
nature
of
the	nature of the communication. The press release and website posting were not merely	communication. The press release and website posting were not merely
informational, but were designed to solicit employees to	informational, but were designed to solicit employees to take action to give up a negotiated	take action to give up a negotiated
benefit, and are therefore not subject to employer speech protections."	benefit, and are therefore not subject to employer speech protections.9
The City's argument that the ALJ "failed to give due weight to the San Diego City	due weight to the San Diego City
Charter provisions regarding	Charter provisions regarding the city attorney's obligation to enforce the laws of the City and	the city attorney's obligation to enforce the laws
of
the City and
provide legal advice to	provide legal advice to the City" is similarly unpersuasive. The City cites Section 40 of the	the City" is similarly unpersuasive. The City cites Section 40
of
the
San Diego City Charter, that states the city	San Diego City Charter, that states the city attorney is the "chief legal advisor of, and attorney	attorney is the "chief legal advisor of, and attorney
for the City and all Departments and offices thereof in matters relating to their official powers	for the City and all Departments and offices thereof in matters relating to their official powers
and duties," as mandating both the duty and the obligation
of
the city attorney to enforce the	and duties," as mandating both the duty and the obligation of the city attorney to enforce the
FFurthermore,	urthermore, the city attorney's solicitation to rescind employee purchases was	the city attorney's solicitation to rescind employee purchases was
accompanied by statements that the purchases were illegal and violated the City Charter. It	accompanied by statements that the purchases were illegal and violated the City Charter. It
was also widely known that the city attorney was pursuing litigation to reverse the effect of the	was also widely known that the city attorney was pursuing litigation to reverse the effect of the
employees' underpayment for service credits. Such statements could create undue concern on	employees' underpayment for service credits. Such statements could create undue concern on
the part of	the part of employees over the consequences of failing to rescind their service credit purchases.	employees over the consequences of failing to rescind their service credit purchases.
(Rio	(Rio Hondo.)	Hondo.)
13
The City's argument that the ALJ "failed to give
13

he City attempts to liken the city attorney's powers to that of the State Attorney
General. The City notes the California Constitution, article V, section 13, grants power to the
Attorney General as the "chief law officer of the State," subject to the "powers and duties of
the Governor." The City argues, "[WJhereas the Constitution and Government Code limit the
Attorney General's powers somewhat, the Charter provides almost no limit to the City
attorney's legal powers." In this assertion, the City disregards case law that holds "that general
law prevails over local enactments of a chartered city, even in regard to matters which would
otherwise be deemed to be strictly municipal affairs, where the subject matter of the general
law is of statewide concern." (Professional Fire Fighters, Inc. v. City of Los Angeles (1963)
60 Cal.2d 276, 292 [creation of uniform fair labor practices throughout the state is a matter of
state concern and general law is paramount]; see also, San Francisco Unified School District
(2008) PERB Decision No. 1948 and cases cited therein.)
14
laws	laws of the City, including MOUs between the City and its unions. Based on this argument,	
of
the City, including MO Us between the City and its unions. Based on this argument,
the City claims the city attorney had a duty to
seek
rescission	the City claims the city attorney had a duty to seek rescission of the employees' service credit	
of
the employees' service credit
purchases	purchases in order to protect the City in a financial crisis. However, the City fails to explain or	
in
order to protect the City in a financial crisis. However, the City fails to explain or
provide any evidence as to how such duties	provide any evidence as to how such duties authorize the city attorney to disregard the state	authorize the city attorney to disregard the state
r-ollect1'vpcollective bargaining statute. As the ALJ concluded, the city attorney could have exercised	V
	.I.
	V
baro-a1n1no-	
\..W.f,U..LLJ...1.
.1.5
statute • "
lO
J.
Ac
	l..lJ
thP	
l,J..lV
Al.. LJ conclurl,,rl	J.J.
	UV\.&.,
th	
l,J..lV
..
r-1ty	
\.l.ll,	
attr.rnPU	
l,VJ.J...L\..tJ
"""	
VV\.,l..l
ld have	J..l 	evorr-;s,,rl	
.t\..\,,'.l\.1.1.
VU
his duty on behalf of the City by seeking modification or rescission of the benefit through	his duty
on behalf
of
the City by seeking modification or rescission
of
the benefit through
negotiations with Local 145.	negotiations with Local 145.
Unilateral	Unilateral Change	Change
In determining	In determining whether a party has committed a unilateral change in policy in violation	whether a party has committed a unilateral change in policy in violation
of MMBA section 3505 and PERB Regulation 32603(c), PERB utilizes either the "per se" or	
of
MMBA section 3505 and PERB Regulation 32603(c), PERB utilizes either the "per se" or
"totality
of
the conduct"	"totality of the conduct" test, depending on the specific conduct involved and the effect of such	test, depending on the specific conduct involved and the effect
of
such
conduct
on
the	conduct on the negotiating process. (Stockton Unified School District (1980) PERB Decision	negotiating process. (Stockton Unified School District ( 1980) PERB Decision
No. 143.) Unilateral changes are considered "per se" violations if certain criteria are met.	No. 143.) Unilateral changes are considered "per se" violations
if
certain criteria are met.
Those	Those criteria are: (1) the employer breached or altered the parties' written agreement or its	criteria are: 	(1) the employer breached or altered the parties' written agreement
or
its
own established past practice; (2) such action	own established past practice; (2) such action was taken without giving the other party notice	was taken without giving the other party notice
or an opportunity to bargain over the change; (3) the	or an opportunity to bargain over the change; (3) the change was not merely an isolated breach	change was not merely an isolated breach
of
the contract, but amounts to a change in policy (i.e.,	of the contract, but amounts to a change in policy (i.e., it has a generalized effect or continuing	it has a generalized effect or continuing
"TThe City attempts to liken the city attorney's powers to that
of
the State Attorney
General. The City notes the California Constitution, article V, section 13, grants power to the
Attorney General as the "chief law officer
of
the State," subject to the "powers and duties
of
the Governor." The City argues, "[W]hereas the Constitution and Government Code limit the
Attorney General's powers somewhat, the Charter provides almost no limit to the City
attorney's legal powers." In this assertion, the City disregards case law that holds "that general
law prevails over local enactments
of
a chartered city, even in regard to matters which would
otherwise be deemed to be strictly municipal affairs, where the subject matter
of
the general
law is
of
statewide concern." (Professional Fire Fighters, Inc.
v.
City
of
Los Angeles (1963)
60 Cal.2d 276, 292 [creation
of
uniform fair labor practices throughout the state is a matter
ofstate concern and general law is paramount]; see also, San Francisco Unified School District
(2008) PERB Decision No. 1948 and cases cited therein.)
14

impact upon	impact upon bargaining unit members' terms and conditions of employment); and (4) the	bargaining unit members' terms and conditions
of
employment); and (4) the
change in policy concerns a matter within the scope of representation. (Vernon Fire Fighters	"V..l..&.U,.J...l.	
h
"'ngp.
'It,,.' 1·n.I- pol 1
..l.
cy concern"	
.1.
	..L~
!,,,I,Cl
.l.l.
me>ttP.r	
U-L\."1.L
"
¥Y
11
J.
th
..l.
1.L.lJ.n +1,p.	
L.lJ.\,,,, S"0pe
	'-'
	of
r"'pr"'S"'nta+;An
	\,,'	
V
	V.l.
L
1.,.LVJ.J.,	
{Fevnon	\ f j / t,	
Fz"re
Finhtev"	t,E, t,	
ID
v.
City
of
Vernon (1980)	v. City of Vernon (1980) 107 Cal.App.3d 802; Walnut Valley, supra, PERB Decision No. 160;	107 Cal.App.3d 802; Walnut Valley, supra, PERB Decision No. 160;
San Joaquin County Employees	San Joaquin County Employees Association v. City of Stockton (1984) 161	Association
v.
City
of
Stockton (1984) 161 Cal.App.3d	Cal.App.3d813;	813;
Grant	Grant Joint Union High School District (1982) PERB Decision No. 196.)	Joint Union High School District (1982) PERB Decision No. 196.)
The ALJ found that "by attempting to change the policy concerning purchase
of
such	The ALJ found that "by attempting to change the policy concerning purchase of such
service	service credits without offering to meet and confer with Local 145," the City violated MMBA	credits without offering to meet and confer with Local 145," the City violated
MMBA
section 3505. However, in order to establish a prima facie case, the charging party must first	section 3505. However, in order to establish a prima facie case, the charging party must first
demonstrate	demonstrate that the employer changed a written agreement or past practice. An "attempt" to	that the employer changed a written agreement or past practice. An "attempt" to
change	change a policy is insufficient. Although the city attorney solicited employees to rescind service	a policy is insufficient. Although the city attorney solicited employees to rescind service
credit	credit purchases, the record does not contain evidence the City actually altered or terminated the	purchases, the record does not contain evidence the City actually altered or terminated the
policy with respect to the purchase
of
service credits. In fact, the SDCERS	policy with respect to the purchase of service credits. In fact, the SDCERS trustees adjusted the	trustees adjusted the
cost	cost to purchase service credits, suggesting that the benefit continues and is now revenue neutral	to purchase service credits, suggesting that the benefit continues and is now revenue neutral
to the City. Therefore, the	to the City. Therefore, the ALJ's finding that the City committed a unilateral change violation is	ALJ's finding that the City committed a unilateral change violation is
reversed.	reversed.
Request for Judicial Notice	Request for Judicial Notice
The City asks the Board to take judicial notice
of
the San Diego City	The City asks the Board to take judicial notice of the San Diego City Charter, San Diego	Charter, San Diego
Municipal Code, section 24132, and San Diego Ordinance O-18383, section 24.1312. These	Municipal Code, section 24132, and San Diego Ordinance 0-18383, section 24.1312. These
three documents	three documents were submitted for the first time with the City's exceptions."	were submitted for the first time with the City's exceptions.
11
California	California Evidence Code section 451(a), provides that "Judicial notice shall be taken	Evidence Code section 451(a), provides that "Judicial notice shall be taken
of . . . [the] decisional, constitutional, and public statutory law of this state . . . and the provisions	
of
...
[the] decisional, constitutional, and public statutory law
of
this state
...
and the provisions
"Article V, section 40 of the City Charter was admitted into evidence at the hearing	Article V, section 40 of the City Charter was admitted into evidence at the hearing
and was considered	and was considered by the ALJ.	by the ALJ.
15	15

of
any charter described in Section
3,
4,	of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution."12	or 5
of
Article XI
of
the California Constitution."12
(Emphasis added.) City charters are considered to "have all the dignity of ordinary statutes," and	(Emphasis added.) City charters are considered to "have all the dignity
of
ordinary statutes," and
are	are subject to judicial notice although not set forth in the record. (Tilden v. Blood (1936) 14	subject to judicial notice although not set forth in the record. 	(Tilden
v.
Blood (1936) 14
Cal.App.2d	Cal.App.2d 407, 413; Clark v. Patterson (1977) 68 Cal.App.3d 329.) Therefore, we grant the	407,413; Clark
v.
Patterson (1977)
68
Cal.App.3d 329.) 	Therefore, we grant the
request to take judicial notice
of
the City	request to take judicial notice of the City Charter.	Charter.
However, as discussed herein, the City fails to	However, as discussed herein, the City fails to demonstrate how the provisions in the City	demonstrate how the provisions in the City
Charter defining the city attorney as the chieflegal advisor to the City,	Charter defining the city attorney as the chief legal advisor to the City, gives him the authority to	gives him the authority to
bypass the exclusive representative and directly	bypass the exclusive representative and directly solicit the employees to rescind benefits	solicit the employees to rescind benefits
obtained	obtained pursuant to the MOU negotiated by Local 145.	pursuant to the MOU negotiated by Local 145.
California	California Evidence Code section 452(b) provides that, "Judicial notice may be taken	Evidence Code section 452(b) provides that, "Judicial notice may be taken
of
...
[r]egulations and	of . . . [regulations and legislative enactments issued by or under the authority of the United	legislative enactments issued by or under the authority
of
the United
States	States or any public entity in the United States." (Emphasis added.) As such, the granting of	or any public entity in the United States." (Emphasis added.) As such, the granting
of
judicial notice by PERB is discretionary. Municipal codes and city ordinances fall under this	judicial notice by PERB is discretionary. Municipal codes and city ordinances fall under this
statute.	statute.
Both the Municipal Code and the City Ordinance were readily available prior to the filing	Both the Municipal Code and the City Ordinance were readily available prior to the filing
of the charge, and the City failed to offer any evidence of good cause for failure to obtain and	
of
the charge, and the City failed to offer any evidence
of
good cause for failure to obtain and
provide this evidence at the hearing for the ALJ to consider.	provide this evidence at the hearing for the ALJ to consider. Therefore, the Board denies the	Therefore, the Board denies the
City's request for judicial notice of the City Municipal Code and Ordinance.	City's request for judicial notice
of
the City Municipal Code and Ordinance.
Remedy	Remedy
Pursuant to Government Code section 3509(a), PERB, under Section 3541.3(i), is	Pursuant to Governn1ent Code section 3509(a), PERB, under Section 3541.3(i), is
empowered to:	empowered to:
12
12Section 3, Article XI of the California Constitution provides that, "For its own	Section 3, Article XI of the California Constitution provides that, "For its own
government, a county or city may	government, a county or city may adopt a charter by majority vote of its electors . . . ."	adopt a charter by majority vote of its electors
....
"
16	16

[T]ake	[TJake any action and make any determinations in respect of	any action and make any determinations in respect
of
these charges or	these charges or alleged violations as the board deems necessary	alleged violations as the board deems necessary
to effectuate the policies of this chapter.	to effectuate the policies
of
this chapter.
The	The ALJ ordered the City to remove the informational statement and request for	ALJ ordered the City to remove the informational statement and request for
rescission agreement from the city attorney's website. However, the Board agrees with the	rescission agreement from the city attorney's website. However, the Board agrees with the
City that this remedy is overbroad, as the issue before the Board at this time pertains only to	City that this remedy is overbroad, as the issue before the Board at this time pertains only to
claims by Local 145.	claims by Local 145. Therefore, the Board finds an appropriate remedy is to order the City to	Therefore, the Board finds an appropriate remedy is to order the City to
include with any posting on the city attorney's website regarding rescission ofretirement	include with any posting on the city attorney's website regarding rescission of retirement
service credit purchases, a prominent notation that the procedure does not apply to employees	service credit purchases, a prominent notation that the procedure does not apply to employees
represented by Local 145.	represented by Local 145.
ORDER	ORDER
Based	Based on the foregoing findings of fact and conclusions of law and the entire record in	on the foreirnimr
	....,	
'-'
findin2:s
	....,
	of
fact and conclusions
of
law and the entire record in
this matter, it is found that the City of San Diego (Office of the City Attorney) (City) violated	this matter, it is found that the City
of
San Diego (Office
of
the City Attorney) (City) violated
the	the Meyers-Milias-Brown Act (MMBA) when it bypassed the San Diego Firefighters,	Meyers-Milias-Brown Act (MMBA) when it bypassed the San Diego Firefighters,
Local 145, I.A.F.F. (Local 145), by soliciting	Local 145, I.A.F.F. (Local 145), by soliciting employees to rescind a benefit, the purchase of	employees to rescind a benefit, the purchase
of
retirement service credit, negotiated by Local 145. All other allegations are DISMISSED.	retirement service credit, negotiated by Local 145. All other allegations are DISMISSED.
Pursuant to Government Code	Pursuant to Government Code section 3509, it is hereby ORDERED that the City and	section 3509, it is hereby ORDERED that the City and
its representatives shall:	its representatives shall:
A.	A. 	CEASE AND DESIST FROM:	CEASE AND DESIST FROM:
1
1.. 	Bypassing Local 145 by directly soliciting bargaining	Bypassing Local 145 by directly soliciting bargaining unit employees to	unit employees to
rescind retirement service credit purchases.	rescind retirement service credit purchases.
2.	
2. 	Interfering with employee rights by directly soliciting bargaining unitInterfering with employee rights by directly soliciting bargaining unit
employees to rescind retirement service credit purchases.	employees to rescind retirement service credit purchases.
3
3.. 	Interfering with Local 145's	Interfering with Local 145's right to represent employees by directly	right to represent employees by directly
soliciting bargaining unit employees to rescind retirement service credit purchases.	soliciting bargaining unit employees to rescind retirement service credit purchases.
17	17

B.	B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:	EFFECTUATE THE POLICIES OF THE MMBA:
1
1.. 	Notify any bargaining unit employee represented by Local 145 who	Notify any bargaining unit employee represented by Local 145 who
submitted a Request to Rescind Purchase
of
Prospective Service Credit	submitted a Request to Rescind Purchase of Prospective Service Credit Agreement, that they	Agreement, that they
may withdraw the rescission and have their retirement service credits restored.	may withdraw the rescission and have their retirement service credits restored.
2.	
2. 	Include with any posting on the city attorney's website, regarding	Include with any posting on the city attorney's website, regarding
rescission
of
retirement service credit	rescission of retirement service credit purchases, a prominent notation that the procedure does	purchases, a prominent notation that the procedure does
not apply to bargaining unit employees	not apply to bargaining unit employees represented by Local 145.	represented by Local 145.
3.	
3. 	Within 10 workdays
of
the service
of
a final decision in this matter, post
at all work locations where notices to employees in the City customarily are posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the City, indicating that it will comply with the terms
of
this Order. Such posting shall be
maintained for a period
of
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.
Within 10 workdays of the service of a final decision in this matter, post
at all work locations where notices to employees in the City customarily are posted, copies of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
maintained for a period of 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.
44.. 	Written notification of the actions taken to comply with this Order shall	Written notification
of
the actions taken to comply with this Order shall
be made to the	be made to the General Counsel of the Public Employment Relations Board or the General	General Counsel
of
the Public Employment Relations Board or the General
Counsel's designee. The	Counsel's designee. The City shall provide reports, in writing, as directed by the General	City shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports	Counsel or his/her designee. All reports regarding compliance with this Order shall be	regarding compliance with this Order shall be
concurrently served on Local 145.	concurrently served on Local 145.
of the City, indicating that it will comply with the terms of this Order. Such posting shall be
18
Member McKeag joined in this	Member Mckeag joined in this Decision.	Decision.
18
Acting Chair Dowdin Calvillo's concurrence and dissent begins on page 19.	Acting Chair Dowdin Calvillo' s concurrence and dissent begins on page 19.

dissenting:	DOWDIN CALVILLO, Acting Chair, concurring and dissenting: I concur in the	DOWD IN CALVILLO, Acting Chair, concurring and 	I concur in the
majority's conclusion that the City
of
San Diego (Office
of
the City Attorney) (City) did not
majority's conclusion that the City of San Diego (Office of the City Attorney) (City) did not
make an unlawful unilateral change in violation
of
section 3505
of
the Meyers-Milias-Brown	make an unlawful unilateral change in violation of section 3505 of the Meyers-Milias-Brown
Act and Public Employment Relations Board (PERB) Regulation 32603(c) when it posted on	Act and Public Employment Relations Board (PERB) Regulation 32603(c) when it posted on
its website an informational statement regarding rescission of certain purchases of retirement	its website an informational statement regarding rescission
of
certain purchases
of
retirement
service credit along with a form a City employee could use to initiate such a rescission.	service credit along with a form a City employee could use to initiate such a rescission.
However, for the following reasons, I disagree with the majority's conclusion that the website	However, for the following reasons, I disagree with the majority's conclusion that the website
postings constituted a bypass
of
San Diego Firefighters, Local 145, I.A.F.F. (Local 145).	postings constituted a bypass of San Diego Firefighters, Local 145, I.A.F.F. (Local 145).
Local 145 alleged that the City bypassed the union by directly soliciting employees to	Local 145 alleged that the City bypassed the union by directly soliciting employees to
rescind purchases ofretirement service credit. Article 23(6)(8)
of
the MOU between the City	rescind purchases of retirement service credit. Article 23(6)(B) of the MOU between the City
and Local 145 in effect at the time
of
the alleged violation stated, in relevant part:	and Local 145 in effect at the time of the alleged violation stated, in relevant part:
credit	A five-year purchase of service credit provision is established	A five-year purchase
of
service 	provision is established
effective January 1, 1997. Under this provision, the Member may	effective January
1,
1997. Under this provision, the Member may
purchase up to five years
of
service credit by paying both	purchase up to five years of service credit by paying both
employee and employer contributions in an amount and manner	employee and employer contributions in an amount and manner
determined by the San Diego City Employees Retirement System	determined by the San Diego City Employees Retirement System
Board to make the System whole for such time.	Board to make the System whole for such time.
The informational statement posted on the City's website began:	The informational statement posted on the City's website began:
As you know, the City Attorney has concluded that the purchase	As you know, the City Attorney has concluded that the purchase
Diego City	of prospective service credit, or airtime, from the San Diego City	
of
prospective service credit, or airtime, from the San
Employees' Retirement System ('SDCERS') below full cost was	Employees' Retirement System ('SDCERS') below full cost was
not authorized under the law. If you would like to rescind this	not authorized under the law.
If
you would like to rescind this
legally unauthorized purchase, the information below is provided	legally unauthorized purchase, the information below is provided
for your benefit.	for your benefit.
(Italics added.)	(Italics added.)
The	The letter introduced the rescission request form as follows:	letter introduced the rescission request form as follows:
Accompanying this statement is a written agreement for	Accompanying this statement is a written agreement for
download and execution to commence the PSC reversal request	download and execution to commence the PSC reversal request
process. Employees are encouraged to review it, obtain	process. Employees are encouraged to review it, obtain
professional advice as needed and desired, execute the document	professional advice as needed and desired, execute the document
if desired, and submit same to SDCERS for implementation.	
if desired, and submit same to SDCERS for implementation.
(Italics added.)	(Italics added.)
19	19

20
The remainder of the informational statement addressed various tax issues that might	The remainder of the informational statement addressed various tax issues that might
arise from rescission of a purchase. The rescission request form stated the reason for the	arise from rescission of a purchase. The rescission request form stated the reason for the
rescission, i.e., that the purchase price of the service credits was calculated in error, and the	rescission, i.e., that the purchase price of the service credits was calculated in error, and the
method by which the purchase funds were to be returned to the employee.	method by which the purchase funds were to be returned to the employee.
To establish that an employer has unlawfully bypassed the union, the charging party	To establish that an employer has unlawfully bypassed the union, the charging party
must demonstrate that the employer dealt directly with its employees: (1) to create a new	must demonstrate that the employer dealt directly with its employees: (1) to create a new
policy of general application, or (2) to obtain a waiver or modification of existing policiespolicy of general application, or (2) to obtain a waiver or modification of existing policies
applicable to those employees. (County of Fresno (2004) PERB Decision No. 1731-M; Walnut	applicable to those employees. (County of Fresno (2004) PERB Decision No. 1731-M; Walnut
Valley Unified School District (1981) PERB Decision No. 160.) An employer does not bypass	Valley Unified School District (1981) PERB Decision No. 160.) An employer does not bypass
the exclusive representative by communicating directly with employees regarding	the exclusive representative by communicating directly with employees regarding
implementation of an existing policy or matters that are related, but not contrary, to the policy.	implementation of an existing policy or matters that are related, but not contrary, to the policy.
(See County of Fresno, supra [employer's solicitation of employees to be part of "jail working	(See County of Fresno, supra [employer's solicitation of employees to be part of "jail working
group" not bypass when the memorandum of understanding (MOU) explicitly acknowledged	group" not bypass when the memorandum of understanding (MOU) explicitly acknowledged
working group's existence]; Walnut Valley Unified School District, supra [requiring employee	working group's existence]; Walnut Valley Unified School District, supra [requiring employee
to sign document confirming employee volunteered to work overtime was not an attempt to	to sign document confirming employee volunteered to work overtime was not an attempt to
obtain a waiver of overtime policy]; East Tennessee Baptist Hospital (1991) 304 NLRB 872,	obtain a waiver of overtime policy]; East Tennessee Baptist Hospital (1991) 304 NLRB 872,
873 [because collective bargaining agreement allowed employer to make shift changes as	873 [because collective bargaining agreement allowed employer to make shift changes as
necessary for adequate patient care, employer could lawfully survey employees about shiftnecessary for adequate patient care, employer could lawfully survey employees about shift
preferences].)	preferences].)
Here, the City's website postings merely informed City employees that the City had	Here, the City's website postings merely informed City employees that the City had
created a procedure for rescinding a purchase of improperly priced service credits and provided	created a procedure for rescinding a purchase of improperly priced service credits and provided
a form to undo such a transaction if the employee chose to do so. The permissive language of	a form to undo such a transaction if the employee chose to do so. The permissive language of
the postings shows rescission was an optional action on the part of City employees. Nowhere	the postings shows rescission was an optional action on the part of City employees. Nowhere
in the postings did the City ask or encourage employees to waive or modify their ability to	in the postings did the City ask or encourage employees to waive or modify their ability to
20

procedure created by the City.
21
purchase service credits pursuant to Article 23(6)(8) of the MOU. Thus, the website postings	purchase service credits pursuant to Article 23(6)(B) of the MOU. Thus, the website postings
on their face did not constitute a bypass of Local 145.	on their face did not constitute a bypass of Local 145.
Further, while the record establishes that the city attorney intended for his March 7,	Further, while the record establishes that the city attorney intended for his March 7,
2006 news release to encourage City employees to rescind service credit purchases made	2006 news release to encourage City employees to rescind service credit purchases made
below full cost, I disagree that this encouragement transformed the informational website	below full cost, I disagree that this encouragement transformed the informational website
postings into a bypass of Local 145. The majority cites State o_fCalifornia (Department ofpostings into a bypass of Local 145. The majority cites State of California (Department of
Transportation) (1996) PERB Decision No. 1176-S, Rio Hondo Community College DistrictTransportation) (1996) PERB Decision No. 1176-S, Rio Hondo Community College District
(1980) PERB Decision No. 128, and Perkins Machine Company (1963) 141 NLRB 697, none	(1980) PERB Decision No. 128, and Perkins Machine Company (1963) 141 NLRB 697, none
of which involved a bypass allegation, for the proposition that an employer's speech is	of which involved a bypass allegation, for the proposition that an employer's speech is
unlawful if it encourages employees to engage in conduct that undermines the exclusive	unlawful if it encourages employees to engage in conduct that undermines the exclusive
representative. In both State of California (Department of Transportation), supra, and Perkins	representative. In both State of California (Department of Transportation), supra, and Perkins
Machine Company, supra, the employer notified employees of their right to withdraw from the	Machine Company, supra, the employer notified employees of their right to withdraw from the
union during the "window period" set forth in the collective bargaining agreement and	union during the "window period" set forth in the collective bargaining agreement and
provided a pre-existing withdrawal form to employees. The respective boards found the	provided a pre-existing withdrawal form to employees. The respective boards found the
employer's conduct lawful because it did not encourage withdrawal from the union but merely	employer's conduct lawful because it did not encourage withdrawal from the union but merely
informed employees of an existing right. Relying on these cases, the majority finds the City's	informed employees of an existing right. Relying on these cases, the majority finds the City's
communications unlawful because they encouraged employees to take action using a new	communications unlawful because they encouraged employees to take action using a new
procedure created by the City.
It is undisputed that the City created a new procedure for rescinding a purchase of	It is undisputed that the City created a new procedure for rescinding a purchase of
improperly priced service credits and encouraged employees to use the procedure. However,	improperly priced service credits and encouraged employees to use the procedure. However,
unlike encouraging employees to withdraw from the union, this conduct does not have a	unlike encouraging employees to withdraw from the union, this conduct does not have a
detrimental effect on Local 145. As noted above, the rescission procedure is not necessarily	detrimental effect on Local 145. As noted above, the rescission procedure is not necessarily
contrary to the negotiated benefit provided in MOU Article 23(6)(8). Moreover, none of the	contrary to the negotiated benefit provided in MOU Article 23(6)(B). Moreover, none of the
City's additional communications about the rescission procedure indicated a desire for	City's additional communications about the rescission procedure indicated a desire for
employees to waive or modify their ability to purchase retirement service credits. Thus, unlike	employees to waive or modify their ability to purchase retirement service credits. Thus, unlike
21

22
the majority, I would find that the City did not "advocate a course of action in circumvention	the majority, I would find that the City did not "advocate a course of action in circumvention
of the exclusive representative" by encouraging employees to rescind their purchases of	of the exclusive representative" by encouraging employees to rescind their purchases of
improperly priced service credits.1 Accordingly, I conclude the City did not bypass Local 145	improperly priced service credits.' Accordingly, I conclude the City did not bypass Local 145
by posting the informational statement regarding retirement service credit and the rescission	by posting the informational statement regarding retirement service credit and the rescission
request form on its website, or by encouraging employees to rescind purchases of improperly	request form on its website, or by encouraging employees to rescind purchases of improperly
priced service credits. I would therefore dismiss the complaint and underlying unfair practice	priced service credits. I would therefore dismiss the complaint and underlying unfair practice
charge in their entirety.	charge in their entirety.
1
To the extent the majority's conclusion is based on the possible coercive effect of the	To the extent the majority's conclusion is based on the possible coercive effect of the
city attorney's communications in light of ongoing well-publicized litigation, including	city attorney's communications in light of ongoing well-publicized litigation, including
criminal charges, over the improperly priced service credits, I disagree that this context is	criminal charges, over the improperly priced service credits, I disagree that this context is
sufficient to establish interference with employee rights, particularly as the record indicates no	sufficient to establish interference with employee rights, particularly as the record indicates no
City employee actually rescinded his or her purchase of retirement service credits as a result of	City employee actually rescinded his or her purchase of retirement service credits as a result of
the communications.	the communications.
22

APPENDIX	APPENDIX
NOTICE TO EMPLOYEES	NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE	POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California	An Agency
of
the State
of
California
After	After a hearing in Unfair Practice Case No. LA-CE-294-M, San Diego Firefighters,	a hearing in Unfair Practice Case No. LA-CE-294-M, San Diego Firefighters,
Local 145, I.A.
F.
F. v.
City
of
San Diego	Local 145, I.A.F.F. v. City of San Diego (Office of the City Attorney), in which all parties had	(Office
of
the City Attorney), in which all parties had
the right to participate, it has been found that the City of San Diego (Office of the City	the right to participate, it has been found that the City
of
San Diego (Office
of
the City
Attorney) (City) violated the Meyers-Milias-Brown Act (MMBA), Government Code	Attorney) (City) violated the Meyers-Milias-Brown Act (MMBA), Government Code
section 3500 et seq.	section 3500 et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:	As a result
of
this conduct, we have been ordered to post this Notice and we will:
A.	A. 	CEASE AND DESIST FROM:	CEASE AND DESIST FROM:
1
1.. 	Bypassing the	Bypassing the San Diego Firefighters, Local 145, I.A.F.F. (Local 145),	San Diego Firefighters, Local 145, I.A.F.F. (Local 145),
by	by directly soliciting bargaining unit employees to rescind retirement service credit purchases.	directly soliciting bargaining unit employees to rescind retirement service credit purchases.
2.	
2. Interfering with employee rights by directly soliciting bargaining unit	Interfering with employee rights by directly soliciting bargaining unit
employees to rescind retirement service credit purchases.	employees to rescind retirement service credit purchases.
3.	
3. 	Interfering with Local 145's right to represent employees by directly	Interfering with Local 145's right to represent employees by directly
soliciting bargaining unit employees to rescind retirement service credit purchases.	soliciting bargaining unit employees to rescind retirement service credit purchases.
B.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:	EFFECTUATE THE POLICIES OF THE MMBA:
1
1.. 	Notify any bargaining unit employee represented by Local 145 who	Notify any bargaining unit employee represented by Local 145 who
submitted a Request to Rescind Purchase of Prospective Service Credit Agreement, that they	submitted a Request to Rescind Purchase
of
Prospective Service Credit Agreement, that they
may withdraw the rescission and have their retirement service credits restored.	may withdraw the rescission and have their retirement service credits restored.
2.	
2. 	Include with any posting on the city attorney's website, regarding	Include with any posting on the city attorney's website, regarding
rescission of retirement service credit purchases, a prominent notation that the procedure does	rescission
of
retirement service credit purchases, a prominent notation that the procedure does
not apply to bargaining unit employees	not apply to bargaining unit employees represented by Local 145.	represented by Local 145.
Dated:	Dated:
--------- 	CITY OF SAN DIEGO (OFFICE OF THE CITY	CITY OF SAN DIEGO (OFFICE OF THE CITY
ATTORNEY)	ATTORNEY)
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
By:	By:	
---------------
Authorized Agent	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.