City of Lincoln * * * PARTIALLY OVERRULED by amendment to MMBA section 3505.1, Stats. 2013, Ch. 785, as recognized by Alliance for College-Ready Public Schools (2026) PERB Decision No. 3054, pp. 37-40 * * * (PERB 2284M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATIONARY ENGINEERS LOCAL 39,
INTERNATIONAL UNION OF OPERA TING
ENGINEERS, AFL-CIO,
Charging Party,
V.
CITY OF LINCOLN,
Respondent.
Case No. SA-CE-756-M
PERB Decision No. 2284-M
September 6, 2012
Appearances: 	Weinberg, Roger & Rosenfeld by Gary P. Provencher, Attorney, for Stationary
Engineers Local 39, International Union of Operating Engineers, AFL-CIO; Best, Best &
Krieger by Stacey N. Sheston, Attorney, for City of Lincoln.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by Stationary Engineers Local 39, International
Union of Operating Engineers, AFL-CIO (Local 39) to the proposed decision (attached) of a
PERB administrative law judge (ALJ) dismissing a complaint and underlying unfair practice
charge. The complaint and charge alleged that the City of Lincoln (City) violated the Meyers
Milias-Brown Act (MMBA) 1 by failing to consider, conduct a vote, or take any other action
related to a tentative agreement entered into between Local 39 and the City's negotiator and
ratified by the Local 39 membership, thereby violating its duty to meet and confer in good
faith. 	determined that 	evidence failed to establish a 	of the MMBA and
dismissed the complaint and underlying charge. Local 39 excepts to that determination.
1 The MMBA is codified at Government Code section 3500 et seq.
PARTIALLY OVERRULED by amendment to MMBA section 3505.1, Stats. 2013, Ch. 785, as recognized by
Alliance for College-Ready Public Schools (2026) PERB Decision No. 3054, pp. 37-40

The Board has reviewed the proposed decision and the record in light of Local 3 9' s
exceptions, the City's response, and the relevant law. Based on this review, we find the ALJ's
proposed decision to be well-reasoned, adequately supported by the record, and in accordance
with applicable law. Accordingly, the Board adopts the ALJ's proposed decision as the
decision of the Board itself, supplemented by the discussion below of Local 39' s exceptions.2
FACTUAL SUMMARY3
The City and Local 39 were parties to a memorandum of understanding (MOU) that
expired on June 30, 2011. On June 29, the bargaining teams reached a tentative agreement that
was presented to the Local 39 membership for ratification. On July 14, 2011, the Local 39
membership voted to reject the tentative agreement. On August 4, 2011, the Local 39
membership rejected a second tentative agreement reached by the bargaining teams. On
August 10, 2011, the City declared that the parties were at impasse and presented its last, best,
and final offer (LBFO). Subsequently, the City notified Local 39 that the LBFO would be
presented to the City Council for consideration.4
On September 7, 2011, Local 39 notified the City that its membership had authorized a
strike.
2 The Board declines to adopt footnote 4 of the proposed decision. The issue
there discussed, viz., the duty of negotiators to support tentative agreements in the ratification
process, was raised for the 	time in Local 39's post-hearing brief and properly deemed an
unalleged violation. (Fresno County Superior Court (2008) PERB Decision No. 1942-C.)
Moreover, since neither party excepted to it, the issue is not properly before the Board. (PERB
Reg. 32300(c) [An exception not specifically urged shall be waived].) Thus, we express no
opinion thereon. (PERB regs. are codified at Cal. Code of Regs., tit. 8, sec. 31001 et seq.)
3 The Board adopts the findings of fact set forth in the attached ALJ' s proposed
decision.
4 Although originally scheduled for presentation on August 23, 2011, the LBFO was
not presented to the City Council until September 13, 2011, due to a City emergency that
required cancellation of the August 23, 2011 meeting.
2

On September 13, 2011, the City Council voted to impose the LBFO, effective
October 2, 2011. The employees went on strike on September 14, 2011.
The parties continued to meet and negotiate. On September 19, 2011, the bargaining
teams reached agreement on a third tentative agreement. 	On September 20, 2011, the Local 39
membership ratified the tentative agreement.
The City placed the third tentative agreement on the agenda for the City Council's
meeting on September 27, 2011. The agenda language recommended that the City Council
consider authorizing the City Manager to enter into a new MOU with Local 39 based upon the
parties' recent negotiations. According to the City's representative, the use of the term
"authorize" instead of "approve" was intentional, as staff was not confident that the City
Council would approve the tentative agreement.
After meeting in closed session on September 27, 2011, the City Council discussed the
tentative agreement in open session. All five City Council members commented on the
agreement. One Council member stated that, while there was some good work or good effort
done, there was still more work to be done. The City Council members directed staff to
continue to work with Local 39 to come to a comprehensive agreement that they could agree
to. The City Council did not take a formal vote to approve or disapprove the tentative
agreement.
The City continued to offer to meet and confer with Local 39 	an effort to reach a
comprehensive agreement, but no further bargaining sessions were held.
THE ALJ'S PROPOSED DECISION
The ALJ determined that the City Council members' words and specific directions to
staff to continue to work with Local 39 on agreement were sufficient to demonstrate the City
Council's rejection of the tentative agreement. Accordingly, the ALJ concluded that the
3

evidence did not establish that the City failed to meet and confer in good faith when it failed to
take a formal vote on the tentative agreement.
LOCAL 39'S EXCEPTIONS
Local 39 excepts to the following determinations by the ALJ:
1. 	The ALJ erred in its statement of Local 39's position. Local 39 asserts that it
did not merely contend that the City had an obligation to formally vote on the tentative
agreement, but instead that it argued that the City Council was obligated to take some type of
formal action or provide a specific directive to the parties regarding the tentative agreement.
2. 	Local 39 contends that the ALJ erred in relying on Beverly Hills Firemen's
Association v. City of Beverly Hills (1981) 119 Cal.App.3d 620 (Beverly Hills), and that the
facts of that case are distinguishable from those of the present case.
DISCUSSION
MMBA Section 3505. l provides:
If agreement is reached by the representatives of the public
agency and a recognized employee organization or recognized
employee organizations, they shall jointly prepare a written
memorandum of such understanding, which shall not be binding,
and present it to the governing body or its statutory representative
for determination.
Local 39 contends that the City failed to make a "determination" required by
section 3505.1. According to Local 39, such a determination requires that the City
"authoritatively decide whether or not to accept the agreement." To do so, Local 39 contends,
required the City to either take formal action on the tentative agreement or give specific
instructions as to the deficiencies of the tentative agreement. According to Local 39, 	City
Council's failure to take formal action and its instruction to its negotiators to keep negotiating
failed to comply with the requirements ofMMBA section 3505.1.
4

We agree with the ALJ that the evidence failed to establish a violation of MMBA
section 3505.1. We further find that the ALJ relied correctly on Beverly Hills in interpreting
section 3505.1. In Beverly Hills, the court stated:
The response called for by such a presentation is a determination
either that the MOU is approved and shall be effective or that it is
not approved, in which event further negotiations to reach an
acceptable agreement are in order.
(Beverly Hills at p. 628; emphasis added.)
In making such a determination, "[t]he statute does not require the use of any specific
words to express the council's ratification." (Ibid.) Therefore, the court concluded, a
resolution directing the city to "carry out" an agreement was an appropriate manner in which to
express approval of the agreement, despite the lack of a specific vote to approve the agreement
(Ibid.)
Local 39 argues that Beverly Hills is distinguishable from this case because, in that
case, the city council issued a formal resolution directing the actions of the city, while in this
case no formal directive of any kind was issued. We agree with the ALJ that the comments of
the City Council members that the tentative agreement did not go far enough and that they had
directed staff to continue negotiating to reach a comprehensive agreement the City Council
could approve satisfied the requirements of MMBA section 3505.1 in conveying the City
Council's determination not to approve the tentative agreement. Consistent with the language
emphasized above, the record indicates that each of the City Council members expressed the
opinion that further negotiations to reach an acceptable agreement were in order, thereby
signifying their disapproval of the tentative agreement presented.
Local 39 further contends that the City Council was obligated to do more than simply
indicate its approval or disapproval of the agreement, and that it was required to provide some
"specific directive" or "guidance" to Local 39 regarding what needed to be done to make the
5

tentative agreement acceptable to the City Council. We find no such requirement in
section 3505 .1 or any other provision of the MMBA. Had the City Council simply voted to
reject the tentative agreement, it would not have needed to provide any reasons or directive.
Accordingly, we reject the argument that more was required in this instance.5
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-756-M are
hereby DISMISSED.
Chair Martinez and Member Huguenin joined in this Decision.
5 We further reject Local 39's argument that the ALJ misconstrued its position. 	In any
event, we have addressed its argument that the conduct required by MMBA section 3501.1
encompassed more than just voting on the tentative agreement.
6

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
STATIONARY ENGINEERS LOCAL 39,
INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO,
Charging Party,
V.
CITY OF LINCOLN,
Respondent.
UNFAIR PRACTICE
CASENO. SA-CE-756-M
PROPOSED DECISION
(June 7, 2012)
Appearances: 	Weinberg Roger & Rosenfeld by Gary P. Provencher, Attorney, for Stationary
Engineers Local 39, International Union of Operating Engineers, AFL-CIO; Best Best &
Krieger by Stacey N. Sheston, Attorney, for City of Lincoln.
Before Robin W. Wesley, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that an employer breached its duty to bargain in good faith
when the governing body failed to take a vote on a tentative agreement for a successor
contract. The employer denies committing any unfair practices.
On October 5, 2011, the Charging Party, Stationary Engineers Local 39, International
Union of Operating Engineers, AFL-CIO (Local 39), filed an unfair practice charge against the
City of Lincoln (City). The City submitted a position statement in response to the charge on
October 24, 2011.
On November 22, 2011, the Office of the General Counsel of the Public Employment
Relations Board 	or Board) issued a complaint that alleged the 	failed to meet and
confer in good faith 	the governing body failed or refused to consider a tentative
agreement, conduct a vote, or take any other action. By this conduct, the City is alleged to

have violated the Meyers-Milias-Brown Act (MMBA), 1 sections 3503, 3505, 3506 and
3509(b), and PERB Regulation 32603(a), (b) and (c).2
The City answered the complaint on December 13, 2011, denying any violation
of
the
MMBA and asserting affirmative defenses.
The paiiies participated in a settlement conference conducted by a Board agent
on
January 5, 2012, but the matter was not resolved.
A formal hearing was held in Sacramento on March 15, 2012. Following the filing
of
briefs, the case was submitted for decision on May 14, 2012.
FINDINGS OF FACT
The City is a public agency within the meaning
ofMMBA
section 3501(c) and
PERB Regulation 32016(a). Local 39 is an exclusive representative within the meaning
of
PERB Regulation 32016(b)
of
the employees in the City's Classified Employees Bargaining
Unit.
James Britton (Britton) is employed by Local 39 as a Business Representative
and
served as Local 39's Chief Negotiator. Joan Bryant (Bryant) is the Local 39 Director
of
Public
Employees. Jim Estep (Estep) is the City Manager and LaITy Menth (Menth) served as the
City's ChiefNegotiator.
Local 39 and the City are parties to a memorandum
of
understanding (MOU) and an
addendum 	expired on 	30, 2011. 3 or about 	Local 39 and 	City
negotiations for a successor agreement. The partic::s' ground rules required all bargaining
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3 Hereafter, all dates are in 2011, unless otherwise noted.
2

sessions to be held at City Hall. The parties held approximately ten bargaining sessions
between May
17
and September 19.
On June 29, the bargaining teams reached a tentative agreement for a new MOU. 	The
Local 39 membership considered the tentative agreement, but voted to reject it on July 14.
Local 39 and the City resumed negotiations and met on August
1.
The parties reached
a second tentative agreement. Local 39 held a ratification vote on August 4, but the
membership again rejected the tentative agreement.
On August 10, the City declared the parties were at impasse and gave Local 39 the
City's last, best, and final offer (LBFO).
In an August 19 letter to Britton, Estep confinned the paiiies were at impasse. 	Estep
notified Local 39 that the LBFO would be presented to the City Council for consideration on
August 23. Ultimately, the City Council did not meet on August 23, after a railroad propane
tank car emergency caused the evacuation
of
the City's downtown area, including City offices.
The City rescheduled consideration
of
the LBFO for September 13, a date when Local 39
representatives could be present.
On September 7, Local 39 notified the City that the membership had authorized a
strike.
On September 13, the City Council considered the LBFO. The LBFO item was placed
on both the closed session and open session portions
of
the City Council's agenda. The agenda
item memorandum stated:
City staff recommends that the City Council approve to impose a
one-year Last, Best and Final (LBF) offer for the International
Union of Operating Engineers (IUOE), Local 39, Classified Unit.
The City Council voted to impose the LBFO. The new terms were to be effective October 2.
3

On September 14, employees in the Classified Employees Bargaining Unit went
on
strike.
Local 3 9 and the City met at the bargaining table on September 19. Bryant attended the
bargaining session for the first time on behalf
of
Local 39. The bargaining teams reached
agreement on a third tentative agreement for a successor MOU. The Local 39 membership
ratified the tentative agreement on September 20.
The tentative agreement was placed on the City Council's September 27 agenda. 	The
agenda indicated the matter would be considered in both closed session and open session. The
agenda item memorandum included the following recommendation:
City staff recommends the City Council consider authorizing the
City Manager to enter into a new Memorandum
of
Understanding
(MOU) with the International Union
of
Operating Engineers
(IUOE), Local 39, Classified Unit based on recent negotiations.
The options portion
of
the memo infom1ed the Council that it could take the following action:
1.	
Approval to enter into a new Memorandum
of
Understanding
(MOU) for the Classified Unit
of
the IUOE.
2. 	Provide staff with additional direction.
Estep testified that the difference in this agenda item language "authorizing" a
new
MOU, compared to the September
13
item "approving" the LBFO, was intentional. Estep
explained that the economic benefits in the September 19 tentative agreement were less
beneficial to the City than what the Council had already approved in the LBFO. As a result,
staff was not confident the Council would approve the tentative agreement.
On September 27, the City Council considered the tentative agreement in closed
session. Later, in open session, several Council members commented on the tentative
agreement, stating that it was a good effort but there was more work to be done. The Council
did not vote on the tentative agreement, stating they had given staff direction in closed session.
4

In open session, the Council directed
staff
to continue to work with Local 39 to reach a
comprehensive agreement they could approve.
Later that evening, after the City Council meeting, Menth sent an e-mail to Local 39,
stating "the City is ready, willing and able to again meet with Local 39 in an effort to
reach
a
comprehensive Agreement."
In a letter to Estep on September 28, Bryant referenced
Menth's
email and
questioned
whether Menth had the authority to approve the tentative agreement on
behalf
of
the City.
Bryant also asked Estep to provide the rationale for the Council's actions.
Estep responded on September 30, assuring Bryant that Menth had authority to
meet
and confer on
behalf
of
the City. Estep asserted that while the City Council did not
approve
the tentative agreement, the City remained willing to meet with Local 39.
The Local 39 and City bargaining teams scheduled a bargaining session at City Hall for
October 5 at 9:00 a.m. Shortly before the scheduled bargaining session, Bryant emailed a
letter to Estep indicating she was unavailable to attend. Bryant's letter stated, "I told
Mr. Britton to convey to you that I was available to meet today, October 5, 2011, at
our
Sacramento location because I had previously scheduled meetings at this office, but I
was
willing to take the time to speak with representatives
of
the City
of
Lincoln."
Estep reminded Bryant that the ground rules set bargaining sessions at City Hall. 	Estep
declined to have the members
of
the 	teams travel to Sacramento to meet 	s
office. The bargaining session was canceled.
Estep and Bryant 	to exchange correspondence through October 21. 	City
continued to assert its willingness to resume negotiations, while Local 39 requested
infomrntion detailing the items the City wanted to discuss. No further bargaining sessions
were held.
5

On February 27, 2012, the City sent a letter to Local 39 and all other bargaining units
inviting the unions to commence negotiations for the upcoming year.
ISSUE
Did the City fail to meet and confer in good faith when it failed to vote on the
September
19
tentative agreement?
CONCLUSIONS OF LAW
MMBA section 3505 sets forth the requirement that local public agencies and
recognized employee organizations "shall meet and confer in good faith regarding wages,
hours, and other terms and conditions
of
employment." MMBA section 3 505
.1
requires:
If
agreement is reached
by
the representatives
of
the public
agency and a recognized employee organization or recognized
employee organizations, they shall jointly prepare a written
memorandum
of
such understanding, which shall not be binding,
and present it to the governing body or its statutory representative
for determination.
In reviewing MMBA section 3505.1, the Supreme Court has held that once a tentative
agreement is approved by a local agency, the agreement is binding. (Glendale City Employees'
Association
v.
Ci(y a/Glendale (1975)
15
Cal.3d 328.) However, the courts have uniformly
held that the actions
of
a local agency's representatives in reaching a tentative agreement
cannot bind the agency. 	(United Public Employees, Local 390/400, SEIU, AFL-CIO
v.
City
and County
of
San Francisco (1987) 190 Cal.App.3d 419 ["[A] governing body has no
commitment to accept agreements negotiated by its representatives."].) In Bagley
v.
Ci(y
of
Manhattan Beach (1976)
18
Cal.3d 22, the Supreme Court stated,
Although there is provision for a written memorandum
of
understanding by employee organizations and representatives
of
a negotiating public agency, the act expressly provides that the
memorandum "shall not be binding" but shall be presented to the
governing body of the agency or its statutory representative for
determination, thus reflecting the legislative decision that the
6

ultimate determinations are to be made by the governing body
itself or its statutory representative and not by others.
(Ibid. at p. 25, emphasis in original; See also City o.f Clovis (2009) PERB Decision No. 2074-
M.) 
In Long Beach City Employees Association
v.
City
of
Long Beach (1977)
73
Cal.App.3d
273, the court held that to require a city council to adopt the tentative agreement negotiated
by
the city manager would nullify MMBA section 3505.1. The court further concluded it was not
bad faith for the city manager to advise the members
of
the city council that they did not have
to approve the tentative agreement. 	(See also Stationary Engineers, Local 39, JUOE, AJ<'L-CIO
v.
San Juan Suburban Water District (1979) 90 Cal.App.3d 796, 802 [The failure
of
the
bargaining team to recommend adoption
of
a final MOU does not demonstrate bad faith.].)
Local 39 contends that MMBA section 3505.1 requires the City to make a
"determination" on the tentative agreement, meaning that the City has an obligation to
formally vote to approve or reject the tentative agreement. Local 39 argues that the failure to
take an official vote on the proposal signifies the City took no action and, thus, the status
of
the
tentative agreement remains the same as before the meeting. In addition, Local 39 claims the
City Council thereafter failed to inform Local 39
of
the deficiencies in the tentative agreement.
The City asserts the City Council considered the tentative agreement, found it
unacceptable and provided staff with direction to continue working with Local 39 to reach an
agreement that was satisfactory to both parties. The City contends this was a "detennination"
pursuant to MMBA section 3505.1.
Beverly 	Firemen
's
Association
v.
	of
Beverly	
(1	
1)119
620, the court considered whether the city had approved the proposed MOU. The city council
did not vote on the MOU. Rather, the city council adopted a resolution directing that
amendments to the city's ordinances to carry out the MOU be prepared for consideration by
7

the council. The court found that in presenting a proposed MOU to the governing body,
MMBA section 3505.1 requires a determination
of
approval or rejection. However, the court
held that no specific words were required to comply with a local agency's authority to accept
or reject a tentative agreement. Thus, notwithstanding the council's failure to specifically vote
on the MOU, "[a] direction to 'carry out' an agreement is an appropriate manner in which to
express approval." (Ibid. at p. 628.)
In the same manner, comments by members
of
a city council that a tentative agreement
did not go far enough and providing direction to staff to continue negotiations in an effort to
reach an acceptable comprehensive agreement, is an equally persuasive means by which to
adequate convey disapproval
of
the tentative agreement.
There could be no confusion based on the City Council members' public comments that
the agreement was not acceptable. The Council members stated it was a good effort,
but
that
more work needed to be done. The Council then took specific action, invoking one
of
the
options in the agenda item memorandum, and gave direction to staff to continue to work with
Local 39 on an agreement. The Council members' words and specific direction to staff were
sufficient to demonstrate the Council's rejection
of
the tentative agreement. Further, contrary
to Local 39's assertion, the City Council was not required to share with Local 39 the specific
instructions given to staff in closed session. (Coun~y
ofLos
Angeles
v.
Superior Court (1975)
13
Cal.3d 721.) Accordingly, the evidence does not establish that the City failed to meet and
confer in good faith when it failed to take a formal vote on the tentative agreement.
In its post-hearing brief, Local 39 raised for the first time the allegation that the City's
negotiator reneged on an agreement to support the tentative agreement based on differences in
the agenda language where staff recommended "authorizing" rather than "approving" the
tentative agreement. This is an unalleged violation that was not included in the complaint.
8

The City had no notice
of
this allegation prior to Local
39's
post-hearing
brief or
an
opportunity to defend itself, and the matter was not fully litigated. (Fresno County Superior
Court (2008) PERB Decision No. 1942-C.) Therefore, this allegation cannot
be
considered.4
PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. SA-CE-756-M,
Stationary Engineers, Local 39, International Union or Operating Engineers, AFL-CIO
v.
City
of
Lincoln, are hereby DISMISSED.
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions
with
the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify
by
page citation or exhibit number the portions
of
the record, 	any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular
business day. 	(Cal. Code Regs., tit. 8, §§ 3213 	subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) 	document is also considered 	facsimile
4 Even
if the allegation could properly be addressed, the claim would fail. As discussed
above, the courts have held that the failure of the agency's negotiator to recommend approval
of a proposed MOU does not demonstrate bad faith. 	(Stationary Engineers, supra, 90
Cal.App.3d 796; Long Beach, supra, 73 Cal.App.3d 273.)
9

transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
number
of
copies and proof
of
service, in the U.S. mail. 	(Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement
of
exceptions and supporting
brief
must be served concunently
with
its
filing upon each party to this proceeding.
	Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Robin Wesley
Administrative Law Judge