County of Riverside (PERB 2360M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Res ondent.
Case No. LA-CE-577-M
PERB Decision No. 2360-M
March 25, 2014
Appearances: Weinberg, Roger & Rosenfeld by Alan G. Crowley, Attorney, for Service
Employees International Union, Local 721; The Zappia Law Firm by Edward Zappia,
Attorney, for County of Riverside.
Before Huguenin, Winslow and Banks, Members.*
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions to the proposed decision (attached) of an administrative law
judge (ALJ). The ALJ ruled that the County of Riverside (County) violated the Meyers
Milias-Brown Act (MMBA)1 by unilaterally eliminating step pay increases before a genuine
impasse in negotiations was reached. He ordered that employees whose "anniversary date" fell
on July 30, 2009 be made whole.
*Chair Martinez did not participate in this case.
1 The MMBA is codified at Government Code section 3501 et seq. Unless otherwise
indicated, all statutory references herein shall be to the Government Code.

Both the County and the Service Employees International Union, Local 721 (SEIU)
except to the proposed decision. 2 The County excepts to the ALJ' s finding that the parties
were not at a genuine impasse when it unilaterally suspended the step increases, and SEIU
excepts to a finding by the ALJ that it claims has the potential effect of mistakenly omitting
hundreds of employees who were eligible to receive the step increase on the first day of the
pay period beginning on July 30, 2009.
The Board itself has reviewed the record in this matter, including the pleadings, the
hearing record, the proposed decision, the parties' exceptions and their respective responses.
We conclude that the ALJ' s findings of fact are supported by the hearing record, with one
exception, which we correct below. The ALJ's conclusions of law are well-reasoned and in
accordance with applicable law. We, therefore, affirm the ALJ's proposed decision, subject to
the following discussion of the issues raised by the parties' exceptions.
FACTUAL SUMMARY
SEIU represents approximately 6,000 employees of the County in bargaining units for
para-professionals, professionals, registered nurses and supervisory employees. Negotiations
began in March 2009 for a successor memorandum of understanding (MOU) to the 2006-2009
agreement that expired on June 30, 2009. At the first session on March 26, 2009, the County's
Negotiator, Thomas Prescott, announced that he would be on vacation for most of April. 	He
was replaced as chief negotiator on May 7, 2009 by Steve Komers (Komers).
From the outset of bargaining, the County made clear that it needed economic
concessions from SEIU. The County's goal was to obtain a 10 percent reduction in labor costs
The County also requested oral argument, which was denied because it was untimely
filed. 	The County did not appeal the administrative decision denying its request, so we do not
consider it here.
2

for all employees. The County initially presented SEIU with a list
of
cost reductions from
which it asked SEIU to choose in order to reach the
10
percent reduction. The County
never
intended that all the proposed reductions would be accepted or imposed
if
impasse were
reached.
The parties agree that this "menu" approach did not result in productive negotiations
but for different reasons. According to SEIU witnesses, when SEIU selected some items from
the list, the County would then insist that employee furloughs had to be part
of
the
concessions. The County's witness testified that SEIU failed to pick any item from the menu
until late in negotiations, around July 2009. The County's witness also testified that it chose to
abandon the "menu" approach after concluding that SEIU misrepresented the proposal to its
membership by adding the sum total
of
concessions on the menu and claiming the County was
seeking up to a 30 percent reduction in wages and benefits. The County also asserted that
furloughs would result in immediate savings.
In mid-June 2009, bargaining was suspended for approximately 12 days by mutual
agreement in order to pursue a different approach to cost savings. A bilateral task force was
established to work with members
of
the County's Board
of
Supervisors and the respective
negotiating teams to explore various money-saving ideas, such as a four-day per week, ten
hour-day work schedule. Controversy over this process emerged when SEIU sought "credit" at
the bargaining table for its cost-saving ideas, i.e., the value
of
the cost-savings agreed to
through the task force would count toward the 10 percent labor cost savings demanded by the
County. Komers refused to agree.
The parties returned to negotiations on June 22, 2009, when the County presented SEIU
with a complete proposed MOU. SEIU made counterproposals to this offer, some of which
3

were in the form
of
package proposals. Komers generally responded by refusing to discuss any
SEIU proposal "until you give me the cuts I want." For example, he rejected SEIU's offer that
employees pay part
of
their Public Employees' Retirement System contribution because "that's
not what we're asking for." Furloughs had to be included in any final agreement in the
County's view. On July
9,
2009, the County made a "final offer" that was unsatisfactory to
SEIU.
Believing that negotiations were not progressing and seeking to avoid impasse, SEIU
contacted the Board
of
Supervisors in early July. 	On July 14, 2009, the SEIU bargaining team
met with Supervisor Jeff Stone (Stone) to discuss their complaints about the County's conduct
in negotiations. According to SEIU's witnesses, Stone eliminated certain items from the
County's June 22, 2009 offer at the July 14, 2009 meeting, because the value
of
those proposed
reductions exceeded the County's goal
of
reducing labor costs by
10
percent. Stone informed
the SEIU representatives that what the County really needed was an agreement on furloughs
and a freeze in the step increases.
Between July 16, 2009 and July 22, 2009, the parties exchanged several proposals in an
effort to narrow the gap between them. For example, on July 21, 2009, SEIU presented a
proposal in which it agreed to eight hours
of
furlough per pay period per unit member (24 days
per year), a freeze to merit/step increases, and a one-year term for the MOU. These
concessions were conditioned on the County agreeing to SEIU' s proposal on overtime and
stewards' pay.
July 22, 2009, was a critical day for these negotiations. Both sides believed that
agreement for the entire MOU was imminent. Proposals were exchanged on the remaining
issues that kept the parties from final agreement such as furloughs, stewards' pay, and
4

overtime. SEIU made concessions on furloughs and Komers indicated that he could agree to
SEIU's proposal regarding overtime if the union was flexible in other areas, such as agreeing
to more furlough hours.3
The parties' dispute over the effective date of the new MOU seemed to play out in the
spirit of good faith give-and-take. The County proposed an effective date of July 1, 2009.
SEIU rejected this because it would eliminate the step increases for those employees who were
entitled to receive them in July. But to accommodate the County's need for cost saving, SEIU
agreed to an additional hour of furlough per pay period to account for the one-month delay in
furloughs, if the MOU was to be effective on August 1 instead of July 1, 2009. Agreement on
this issue was reached on July 22, 2009.
Several tentative agreements were signed during the course of July 22, 2009, resulting
in twelve articles of the MOU being put to rest. Agreement had also been reached on a "me
too" clause, an issue that had kept the parties from agreement throughout negotiations. 	In a
sidebar conversation between Komers and Steve Matthews (Matthews), SEIU's Negotiator,
Komers indicated, in response to an SEIU proposal on overtime, that it "looks like we're
making progress" on the overtime issue. SEID had also backed away from its previous
proposal regarding salary compaction. But by late afternoon, it seemed that overtime and
stewards' pay were the two issues that held up final agreement.
Around 7:00 p.m. on the evening of July 22, 2009, Komers abruptly ended negotiations.
According to one SEIU witness, he said he could not come up with a counterproposal to the
The County excepts to the ALJ' s finding on this point, claiming that it was not
supported by the evidence. We reject this exception. The ALJ found: 	"At the table, Komers
expressed a willingness to take an overtime pay proposal to the County Board, depending on
some certainty as to cost and/or leeway in making up that cost." As the ALJ noted, this finding
is supported by the bargaining notes kept by both SEIU and the County.
5

stewards' issue, so he declared negotiations were at an impasse. He also claimed he was going
on vacation the next day. 	When reminded by the SEIU negotiators that the parties had
scheduled further negotiations for July 27, 2009, he changed his explanation to claim that he
was negotiating with another unit. Komers testified that he declared impasse on July 22, 2009,
even though he thought the parties would reach agreement that day, because SEIU responded
to the County's last, best and final offer (LBFO) with a counterproposal that had new things in
it that were unacceptable, including stewards' language. This caused him to believe the parties
were not making progress, so he declared impasse. 	Stewards' pay and overtime were the main
issues identified by Komers on which the parties were at impasse.
In response to this declaration, Matthews told Komers that he did not believe the parties
were at impasse because there were still plenty of issues to discuss and that the stewards'
language was not a deal-breaker, a message that had been conveyed to Komers by Matthews
the day before, as well, and a message that Komers admitted to receiving before he declared
impasse. SEIU reiterated that they were prepared to stay all night to complete negotiations,
and reminded Komers that the parties had also scheduled July 27, 2009 to bargain. Komers
refused to meet on July 27, 2009, or to set up any future bargaining dates.
The parties did meet again on July 27, 2009, despite Komers' earlier refusal. 	SEIU
attempted to present proposals, including one on stewards' pay, but Komers refused to accept
them, explaining that the County was done with negotiations. He also informed SEIU that the
County would not agree to the overtime language that SEIU believed had been verbally agreed
to on July 22, 2009. Komers also reneged on the agreement he had reached on the "me-too"
clause and announced that the effective date of the MOU would be July 30, 2009, instead of
the previously-agreed to August 1, 2009.
6

On July 27, 2009, the County informed SEIU that it believed mediation and fact
finding would be fruitless and it would impose terms and conditions of employment on
July 30, 2009. Included in those terms was the elimination of step increases. At the same
time, Komers informed SEIU that the County would be open to negotiations after July 30,
2009.
Shortly after this imposition, the parties met on August 10 and 19, 2009 and reached an
agreement on a successor MOU, which had an effective date of August 1, 2009, and included
the elimination of step increases. This agreement was subsequently ratified by both parties.
Step Increases
The 2006-2009 MOU, Article V, provided that employees are to receive a step increase
on their "anniversary date" as defined in the MOU. An employee's anniversary date is the
"first day of the pay period following the completion of one year in a paid status," or following
the completion of additional years in a paid status. In 2009, the first day of the third pay
period in July fell on July 30, 2009. Thus, any employee who had completed a year in paid
service between July 16 and July 30, 2009 had an "anniversary date" of July 30, 2009.
In mid-September 2009, SEIU learned that the County had not paid step increases to
those employees who would have been entitled to those increases on or before July 30, 2009.
Komers explained that these employees were not entitled to the step increases, because the
previous MOU expired on June 30, 2009, and the County imposed terms and conditions on
July 30, 2009. According to Komers, those terms and conditions applied until the effective
date of the new MOU, August 1, 2009. Upon learning of this position, SEIU filed this unfair
practice charge, and a complaint issued alleging, inter alia, that the County had unilaterally
changed its policy concerning step increases by refusing to grant such increases to employees
whose anniversary date fell on July 29, 30, or 31, 2009.
7

PROPOSED DECISION
The ALJ concluded that negotiations were not at a genuine impasse as of July 27, 2009,
the last date the parties met before the County imposed its LBFO. He based this conclusion on
several factors. 	The parties had achieved some momentum in resolving the issues that needed
to be settled for a successor MOU. On July 22, 2009, they signed 18 tentative agreements,
having signed 10 previously. SEIU had made concessions on the number of furlough days and
had even proposed a suspension of all step increases for the duration of the MOU, which had
been agreed to be one year. As of July 22, 2009, only two major issues stood in the way of
agreement-SEIU's proposal for stewards' pay and its proposal concerning overtime pay, and
SEIU had clearly indicated it had room to move on both, and that stewards' pay in particular
was not a "deal-breaker." Nonetheless, Komers declared the parties were at impasse over
stewards' pay and overtime and that he would implement terms and conditions of employment
on July 30, 2009.
Based on these facts, the ALJ concluded that "not 'all attempts at reaching agreement
through meeting and conferring had been exhausted."' 	(Proposed Dec., p. 11.) The fact that
Komers said the County would be open to negotiations after July 30, 2009, also led the ALJ to
conclude that attempts to reach agreement had not been exhausted.
Ultimately the ALJ framed the issue: "the question is whether the County took
unilateral action because there was an impasse, or whether the County declared impasse
because it wanted to take unilateral action." (Proposed Dec., p. 12.) Based on Komers'
testimony in which he said he was aware there was "a date beyond which, I think was the
29 th of July, that we could not pass because those people would get their step increases," and
the additional factors described above, the ALJ concluded the County declared impasse
8

because it wanted to take unilateral action, not because all attempts at reaching agreement had
been exhausted.
The ALJ ordered the County to cease and desist from unilaterally changing its policy on
step increases and ordered the County to make whole all those employees adversely affected
by the unilateral change, viz., those employees whose "anniversary date" as defined in the
MOU, "fell on July 30, 2009."4
COUNTY'S EXCEPTIONS
The County' exceptions are summarized as follows and can be grouped into five broad
categories. We address each exception in the subsequent discussion section of this decision,
but summarize them here.
(1) 	Under the MMBA it is the employer that has the discretion to determine when
an impasse exists. By ruling that there was not a genuine impasse, the ALJ improperly usurped
the County's statutory right to declare impasse and improperly imposed PERB's discretion on
the County.
(2) 	The ALJ erred as a factual and legal matter by concluding that there was not a
genuine impasse in this case. The parties met over a course of six months for at least
18 sessions, and "the County declared impasse at the anticipated time of its stated goal to
complete negotiations-July 28, 2009." (County Exceptions, p. 5.) There is no requirement
that the parties exhaust all avenues to agreement before declaring impasse, otherwise impasse
could always be indefinitely thwarted by any party asserting that there is more negotiating to
be done. Under the "totality of circumstances," including the number of sessions over six
4 The ALJ did not issue a bargaining order, presumably because, the parties reached
agreement on a successor MOU, including terms regarding step increases, on August 19, 2009.
9

months
of
bargaining, the County's good faith contrasted with SEIU's delaying tactics, and the
County's need to reduce expenses in the economic crisis, all support the County's claim that
the ALJ erred in finding that the declaration
of
impasse was premature. The ALJ also erred in
concluding that the County declared impasse in order to impose the freeze on step increases.
(3) 	The County was legally permitted to impose the freeze in step increases,
because SEIU had already agreed to that proposal before the County implemented it.
(4) 	PERB does not have authority under the California Constitution to issue any
order against the County regarding wages.
(5) 	The remedy ordered by the ALJ is not supported by the record even
if
the
impasse was premature. The vast majority
of
employees were entitled to receive step increases
on July 31, 2009, not on July 30, 2009. According to the County, only about 20 employees
had an anniversary date on July 29, 2009, and no one had an anniversary date on July 30, 2009.
Though not specifically described as an exception, the County renews its request for an
investigation
of
alleged bias
of
the Board agent who issued the complaint in this case. 	The
County asserts that its charge
of
bias was not addressed or resolved.
SEIU'S EXCEPTION
SEIU lodges only one exception and that is to the ALJ's finding that about
200 employees "completed a year
of
service on July 30, 2009." (Proposed Dec., p. 3.)
According to SEIU, these employees completed their year
of
service before then, and were
entitled to the step increases on July 30, 2009, the first day of the pay period following
completion of a year of service. In other words, according to SEIU, the ALJ confused
completion of a year of service with "anniversary date," which is defined in the MOU as the
first day of the first pay period following the completion of a year of service.
10

Essential to determining liability in this case is to determine whether the parties were at
a genuine impasse in negotiations prior to the County's implementation of its LBFO which
suspended the payment of step increases. Ifthe impasse was not bona fide, or was premature,
the County has violated its duty to bargain in good faith by unilaterally changing its policy
regarding wages. If the impasse was bona fide, the County has not violated the MMBA by
implementing its LBFO. Before addressing the specific exceptions raised by the parties, a
review of the relevant law governing impasse as articulated by PERB and the National Labor
Relations Board (NLRB) is in order.
Absent mutual agreement, a public employer may impose terms and conditions of
employment reasonably comprehended within its LBFO, but only after reaching a bona fide
impasse in negotiations after negotiating in good faith, including participating in good faith in
impasse resolution procedures, if they exist. (MMBA, § 3505.7; Taft Broadcasting Co. (1967)
163 NLRB 475,478 (Taft Broadcasting); San Joaquin County Employees Assn. v. City of
Stockton (1984) 161 Cal.App.3d 813.) Thus, an employer's premature imposition of its LBFO,
prior to reaching impasse and exhausting impasse resolution procedures, if they exist, is an
illegal unilateral change. (Pajaro Valley Unified School District (1978) PERB Decision
No: 51 (Pajaro Valley); Moreno Valley Unified School Dist. v. Public Employment Relations
Bd. (1983) 142 Cal.App.3d 191,200; Modesto City Schools (1983) PERB Decision No. 291
(Modesto), p. 38; County of Sonoma (2010) PERB Decision No. 2100-M (County of Sonoma).)
Prematurely imposing proposed changes in terms and conditions of employment wreaks the
same damage to collective bargaining that we recently described in County of Santa Clara
(2013) PERB Decision No. 2321-M (Santa Clara), pp. 23-24. Such imposition is a unilateral
11

and thus a per se violation
of
the duty to bargain in good faith. 	(Salinas Valley
Memorial Healthcare System (2012) PERB Decision No. 2298-M, pp. 19-20 (Salinas Valley).)
In addition, an employer's premature declaration
of
impasse has been found to
demonstrate an intent to subvert the negotiating process and therefore in violation
of
the duty
to bargain in good faith, even in the absence
of
any imposed term and condition
of
employment. (Kings In-Home Supportive Services Public Authority (2009) PERB Decision
No. 2009-M (Kings IHSS),
p.
11.)
While there is no definition
of
"impasse" in the MMBA, the County's local Employee
Relations Resolution (ERR) defined it thusly:
IMPASSE means a deadlock in the meet and confer process
between a recognized employee organization and the County over
any matters subject to that process.
Our precedents have articulated similar definitions. In Mt.
San Antonio Community
College District (1981) PERB Order No. Ad-124 (Mt. San Antonio), p. 5,
the Board stated:
"[I]mpasse exists where the parties have considered each other's proposals and
counterproposals, attempted to narrow the gap
of
disagreement and have, nonetheless, reached
a point in their negotiations where continued discussion would be futile." Modesto, supra,
PERB Decision No. 291 described impasse as the "point at which the parties have exhausted
the prospects of concluding an agreement and further discussions would be fruitless." (See
also, City & County
of
San Francisco (2009) PERB Decision No. 2041-M (San Francisco)
[Proposed Dec., p. 40.].)
12

law regarding impasses developed in the private sector under the National Labor
Relations Act (NLRA) is similar.5 (Walnut Creek Honda Associates
2,
Inc.
v.
NLRB (1996)
89
F.3d 645, 649 [impasse is a state "in which the parties, despite the best
of
faith, are simply
deadlocked"]; Taft Broadcasting, supra,
163
NLRB 475, 478.) Succinctly put: "impasse [is]
the point in time
of
negotiations when the parties are warranted in assuming that further
bargaining would be futile
....
'Both parties must believe that they are the end
of
their rope.'"
(A.MF. Bowling
Co.
(1994) 314 NLRB 969, 978.)
As the U.S. Supreme Court noted with some understatement in NLRB
v.
Wooster Div.
of
Borg-Warner Corp. (1958) 356 U.S. 342, 352, there is difficulty in establishing the
"inherently vague and fluid a standard is" applicable to an impasse reached by hard bargaining,
as opposed to an impasse resulting from an unlawful refusal to bargain. However, certain
factors have emerged in the case law that provide guidance in the instant case. For example, in
Newcor Bay City, Div.
of
Newcor, Inc. (2005) 345 NLRB 1229 (Newcor Bay City), the NLRB
found there to be no bona fide impasse where the parties met only seven times, and the
employer admitted that it considered the contract expiration date "a deadline for negotiations."
Nor was there an impasse where the union continued to display flexibility and willingness to
compromise. (Grosvenor Resort (2001) 336 NLRB 613.) Where the employer determined to
change the wage structure immediately upon the expiration
of
the contract, the NLRB
determined that no legitimate impasse existed. (Dust-Tex Service, Inc. (1974) 214 NLRB 398,
enforced, 521 F.2d 1404.)
5 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the NLRA and California labor relations statutes with parallel provisions.
(Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
13

that the determination
of
a bona fide impasse is a question
of
fact, both the
NLRB and PERB consider several factors in assessing whether an impasse exists. PERB
Regulation 32793(c)6 permits consideration
of
the number and length
of
negotiating sessions
between the parties; the time period over which negotiations have occurred, the extent to which
proposals and counterproposals have been made and discussed; the number
of
tentative
agreements reached; and the extent to which unresolved issues remain. Depending on the facts
of
a case, certain factors may increase in importance over others, such as in
Mt.
San Antonio,
supra, PERB Order No. Ad-124, where there was no evidence
of
any meaningful discussion or
exchange
of
proposals. In such a case, the number and length
of
meetings and the time period
over which they occurred "are not as useful in a determination
of
impasse as those factors,
noted above [no meaningful discussions], which evidence a meaningful effort to reach
agreement." (Mt. San Antonio, p. 5.)
In addition to bargaining history, evidence
of
good faith bargaining, and the fluidity
of
positions, the Board may consider additional factors, such as the nature and importance
of
the
outstanding issues and the extent
of
difference or opposition. (Sierra Publishing
Co.
d/bla The
Sacramento Union (1988) 291 NLRB 552, enforced, 888
F.
2d 1384 (9
th
Cir. 1989) [even
if
deadlock was reached on union security, deadlock was not reached in entire negotiations and
the duty to bargain on other critical issues continued].)
In accordance with these general principles, we conclude that the County's
July 22, 2009, declaration
of
impasse was premature for the reasons identified by the
ALJ. The evidence shows that on the two issues Komers identified on July 22, 2009,
6 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
14

prevented agreement-stewards' pay and overtime-SEID had unequivocally
signaled to him that it had room to move. Indeed, it had moved on its overtime
proposal in a direction favorable to the County on July 22, 2009, and Komers
acknowledged in a side-bar conversation with Matthews that it looked like they were
making progress on the overtime issue.
Komers' testimony supports the ALJ's conclusion that the County had a fixed
deadline by which it believed it needed to conclude negotiations, regardless of whether
there was mutual agreement. He said that it was "absolutely imperative to have
concessions in place by the time the new budget began hitting the books. The budget
was put together assuming 10 percent labor concessions .... we had to complete
negotiations and enter that budget not creating a deficit." (Reporter's Transcript (RT),
Vol. III, pp. 83: 28 through 84: 1-9.) This "deadline" fell in mid-July 2009. Komers
also explained at the hearing that in July 2009, the County was still giving merit
increases, which were not budgeted, "and we had to stem that tide and stop the merit
increases." (RT, Vol. III, p. 113: 2-4.) According to Komers, the County had given a
substantial pay increase to about 250-300 professional information technology
employees the year before. Their anniversary date was coming up in late July 2009,
and was worth about $1 million. In his view, "I had to protect the County from that
expense." (RT Vol. III, p. 114: 16.) Komers could not let July 29, 2009, pass without a
deal, because the Information Tech (IT) workers would get their step increase. It was
this event and not wanting to allow unbudgeted expenses to be recorded to the
following year's budget that determined the "end date" for negotiations, according to
Komers.
15

declaring impasse on July 22, 2009, and informing SEIU that the County
would impose its LBFO on July 30, 2009, Komers told Matthews that the County
would be open to further negotiations after July 30, 2009, and admitted at the hearing
that the County still had room to negotiate at that point.
Thus, the ALJ's conclusion that the impasse declared on July 22, 2009, was
premature and declared for the purpose of unilaterally imposing the freeze in step
increases before July 30, 2009, is amply supported by the record and in accordance with
the legal principles discussed above.7
We turn now to the County's other specific exceptions.
PERB's Authority to Determine That a Bona Fide Impasse Exists
As an initial matter, the County excepts to the authority of the ALJ to determine that the
impasse was not bona fide, asserting that the MMBA sections 3505 and 3505.6 authorize a
public agency exclusively to declare impasse after meeting and conferring for a reasonable
period of time. It follows, according to the County, that its determination of impasse is
unreviewable, and the ALJ usurped the County's absolute right to determine an impasse in
negotiations. We reject this contention for several reasons.
The MMBA was enacted for two primary purposes: to "promote full communication
between public employers and their employees by providing a reasonable method of resolving
disputes regarding wages, hours, and other terms and conditions of employment ... [and to]
promote the improvement ... [in] employer-employee relations ... by providing a uniform
We note that as a general rule, there is nothing improper about establishing bargaining
objectives that cut labor expenses, but such goals cannot be used as an excuse to terminate
negotiations prematurely. (City of San Jose (2013) PERB Decision No. 2341-M (San Jose),
pp. 39-42.)
16

for recognizing the right
of
public employees to
...
be represented by those
organizations in their employment relationships with public agencies." (MMBA, § 3500.)
From the inception
of
the statute in 1968, it has been recognized that the purposes
of
the
MMBA are achieved through collective bargaining, a system that rejects unilateralism. Full
communication between employers and their employees and improvement in employer
employee relations is brought about by a system based on mutual obligation and respect
and
equal status at the bargaining table, a notion that is recognized and embodied in the text
of
the
statute.
MMBA section 3505 defines "[m]eet and confer in good faith
...
[as] the mutual
obligation personally to meet and confer promptly upon request by either party and continue
for a reasonable period
of
time in order to exchange freely information, opinions, and
proposals, and to endeavor to reach agreement
....
The process should include adequate time
for the resolution
of
impasses where specific procedures for such resolution are contained in
local rule
...
or when such procedures are utilized by mutual consent." (Emphasis added.)
Although the MMBA itself provides no definition
of
impasse and no requirement that
parties utilize any particular method to break an impasse, PERB decisions have applied
concepts developed in the private sector under the NLRA in determining issues arising under
the MMBA regarding impasse. (San Francisco, supra, PERB Decision No. 2041-M.) While it
is indisputable that either party may unilaterally declare that it believes negotiations are at an
impasse, such a declaration is not immunized from review by PERB. If a party has
prematurely declared impasse and thereafter unilaterally imposed its last, best and final offer,
PERB necessarily is called upon to review the bona fides of the impasse declaration in the
process of determining whether the employer committed an unfair practice by unilaterally
17

negotiable terms and conditions of employment without completing good faith
negotiations (Salinas Valley, supra, PERB Decision No. 2298-M), or whether the premature
declaration indicates an intent to subvert the bargaining process. (Kings IHSS, supra, PERB
Decision No. 2009-M.) Pursuant to PERB's unquestioned authority to determine whether
unfair practices have occurred, it necessarily has the authority to determine whether an impasse
declared by either party is genuine, and has done so several times since assuming jurisdiction
of MMBA. 8 (San Francisco; County of Sonoma, supra, PERB Decision No. 2100-M;
Kings IHSS.)
2. 	The ALJ's Consideration of the Totality of Circumstances in Concluding There
Was Not a Genuine Impasse in Negotiations on July 22, 2009
The County asserts numerous exceptions to the ALJ's legal and factual conclusions that
the impasse declared by the County on July 27, 2009 was premature. 	We address each in turn.
The County claims that because there was no finding that it had engaged in bad faith
bargaining prior to its declaration of impasse, the ALJ' s finding that the impasse was
premature was unwarranted. This argument, which we reject, fails to appreciate the difference
between bad faith bargaining measured by the "totality of circumstances" and per se violations
of the duty to bargain in good faith. 	The County is charged here with unilaterally changing
wages by eliminating step increases. This is a per se violation of the duty to bargain in good
faith, requiring no inquiry into the subjective intent of the employer. The conduct carries such
potential to frustrate negotiations, that it is considered unlawful even without evidence of
subjective bad faith or malign motive. (Pajaro Valley, supra, PERB Decision No. 51;
8 MMBA section 3509 gives PERB exclusive initial jurisdiction to determine whether
an unfair practice has been committed and if so, to prescribe an appropriate remedy.
18

Mateo County Community College District (1979) PERB Decision No. 94 (San Mateo
CCD); Santa Clara, supra, PERB Decision No. 2321-M.)
The ALJ made no dispositive finding regarding SEIU' s allegation of surface bargaining
against the County. Yet that does not resolve the unrelated claim that the County committed a
per se violation of the duty to bargain in good faith by unilaterally eliminating the step
increases after declaring impasse prematurely. The lack of subjective bad faith in the
negotiations leading up to the County's impasse declaration does nothing to absolve it of
liability for implementing a unilateral change in wages before impasse was genuinely reached.
The County takes exception to the ALJ' s conclusion because he did not consider the
"totality of circumstances," such as the 18 negotiating sessions over six months, the economic
crisis, SEIU' s alleged delaying tactics, and the County's own testimony that the parties were at
impasse. The ALJ's conclusion that the impasse declared on July 22, 2009, was premature was
based on several factors, all of which supported his conclusion that the parties still had room to
move and that not all attempts at reaching agreement had been exhausted. 	SEIU' s negotiator
signaled very clearly that the issue of stewards' pay was not a "deal-breaker," and that SEIU
could move on overtime pay. Despite the fact that SEIU had already moved towards the
County's position on several significant economic issues, including agreeing to take furlough
days and agreeing to freeze step increases for the duration of the new MOU, the County
declared impasse over comparatively minor issues that it had reason to believe SEIU would
make further movement on. These facts, coupled with Komers' testimony that negotiations
could not pass beyond July 29, 2009, because "people would get their step increases," offer
ample support for the ALJ' s reasonable conclusion that the County declared impasse, because
it wanted to impose the elimination of the step increases, not because the possibilities for
compromise had been exhausted.
19

for the County's claim of economic urgency, we recognize that it, and virtually
every other public agency in California was under severe economic pressure during the period
of time encompassed by these negotiations. It has long been noted that such economic
exigency provides no justification for suspending the duty to bargain in good faith.
(San Francisco Community College District (1979) PERB Decision No. 105; San Mateo CCD,
supra, PERB Decision No. 94; Pleasant Valley School District (1985) PERB Decision
No. 488. 	See also, Sonoma County Organization of Public Employees v. County of Sonoma
(1979) 23 Cal.3d 296, 303-314.) Nor is an employer's deadline such as the beginning of a
budget year or the expiration of an MOU, an excuse to avoid bargaining in good faith.
(Newcor Bay City, supra, 345 NLRB 1229,· Salinas Valley, supra, PERB Decision
No. 2298-M, fn. 9; Calexico Unified School District (1983) PERB Decision No. 357; City of
Davis (2012) PERB Decision No. 2271-M, Proposed Dec., pp. 45-47.) The County's claim,
made throughout this case, that it could not allow the new budget year to pass without settling
the issue of step increases, misunderstands and conflates the process of bargaining in good
faith with the position it took, or may take, during negotiations to rescind the step increases or
other cost-saving measures. Instead of imposing its LBFO after prematurely declaring impasse
in order to avoid the cost of the step increases from being charged to the following budget
year, the County could have changed its economic proposal to take into account its increased
costs incurred by the step increase payable at the end of July 2009.
We also reject the County's claim that the ALJ erred by relying on the fact that the
parties ultimately reached an agreement for support of his conclusion that the impasse
declaration was premature. This mischaracterizes the ALJ' s findings and reasoning. He did
not base his conclusion on the fact that the parties ultimately reached agreement. 	What he
20

was that the County "seemed to acknowledge that not all attempts to reach an
agreement had been exhausted. On July 27, 2009, Komers said the County
....
'remain[ed]
agreeable to continued negotiations to reach mutual agreement on a new
MOU."'
(Proposed
Dec., p. 12.) This reasonably demonstrated to the ALJ that not all attempts to reach agreement
had been exhausted when the County declared impasse, a conclusion with which we agree.
(See Amador Valley Joint Union High School District (1978) PERB Decision No. 74, p. 8.)
Nor do we agree with the County's exception that the ALJ improperly mandated
an
optional impasse procedure contained in Section
15
of
the ERR. By the terms
of
this
provision, impasse procedures are voluntary after "all attempts at reaching an agreement
through meeting and conferring have been unsuccessful." (Proposed Dec., p. 4.) After
that
point, the parties may mutually agree to request the assistance
of
a mediator, and/or a
factfinder, or may mutually agree to any other impasse-resolving procedure. The ALJ noted
that there was no evidence whether the County requested impasse procedures, but this
observation was irrelevant to his conclusion that the impasse was not bona fide.
The County excepts to the ALJ' s conclusion that at the time impasse was declared, the
parties had room to move and there was momentum in the negotiations. According to the
County, this is erroneous because SEIU did not make any concessions until July 21, 2009, and
had engaged in delaying tactics. As discussed above, we affirm the ALJ' s findings regarding
the state
of
negotiations prior to the declaration
of
impasse. As for delaying tactics, we note
that the County did not file any unfair practice charges alleging that the conduct by SEID it
characterizes as delaying tactics constituted bad faith bargaining, and the evidence it presented
does not support its assertion that SEIU' s conduct amounted to bad faith bargaining.
The County elicited testimony at the hearing from its witnesses concerning what it
alleged were burdensome information requests submitted by SEIU. The County also claimed
21

SEIU had engaged in direct dealing with the County's Board
of
Supervisors, which it
asserted delayed negotiations. However, the County's own predictably unacceptable proposals
prompted the information request it claimed to be
so
burdensome, and those proposals
remained on the table well into July 2009, which undoubtedly delayed ultimate agreement. 9
As for its claim that SEIU by-passed the County's negotiators, the County presented no
evidence showing that the meetings SEIU negotiators had with members
of
the Board
of
Supervisors either delayed negotiations or constituted illegal by-passing
of
the County's
negotiators. There was no evidence that SEIU presented any proposal to the supervisors that
had not been presented to the County's bargaining team during the course
of
negotiations.
(San Ramon Valley Unified School District (1982) PERB Decision No. 230,
p.
16.) Contrary
to the County's claim that these meetings delayed negotiations, the evidence shows that at least
some meetings resulted in SEIU accepting the concept
of
furloughs, which moved the parties
closer to agreement.
The County admitted that stopping the step increases was a "motivating factor" in
declaring impasse when it did, and excepts to the ALJ's failure to take into consideration as
part
of
the totality
of
circumstances how important it was to the County to stop "the
unnecessary accrual
of
step increases" by imposing its LBFO before the step increases would
go into effect. The County here confuses a position it may legitimately take in
negotiations
proposed elimination of step increases to take effect before a certain
date-with
its obligation
to bargain in good faith. 	The fact that it set a deadline for eliminating the step increases did
not permit it to circumvent its duty to bargain in good faith to a legitimate impasse. The
Those proposals were to render all professional employees in the bargaining unit at
will employees and to order future layoffs on the basis of merit, rather than seniority.
22

claims that by not eliminating the step increases by July 29, 2009, it would incur
at
least
$1
million in expenses that it had not budgeted for. 	This again misses the point
of
collective bargaining and ignores the reality that what it could not get from one type
of
concession, it could get from another. 	For example,
if
SEIU refused to agree to the elimination
of
step increases, the County was free to propose, and ultimately impose at the point
of
legitimate impasse, a greater number
of
furlough days, or larger wage reductions, etc.,
in
order
to make up the costs it incurred when the step increases went into effect.
10
We also affirm the ALJ's finding that Komers declared that the July 2009, deadline to
end negotiations was for the sole purpose
of
avoiding the payment
of
step increases and reject
the County's claim that this finding misquoted Komers. Komers testified as follows:
Q:
	...
Now, you testified that you felt an urgency to finish
negotiations by a certain date in July?
A: Correct.
Q: What was that date?
A: I think it was the 22
nd
or the
2i\
one
of
the other, I can
remember specifically, 22nd, I think.
Q: What did that date mean?
A:
	...
that was the last date that any expenses could be, the last
date after which all expenses would be credited to the new
budget.
Q: Okay. I thought you also said that there was a date at the end
of
July where you knew that lots
of
IT workers were going to
have their step increase?
This principle was demonstrated in the parties' negotiations concerning furloughs.
SEIU refused to agree to a July 1, 2009, date for the MOU to become effective, because it
would eliminate the step increases for those employees who were entitled to receive them in
July. 	Having agreed to accept furloughs, SEIU proposed nine additional hours of furlough per
employee per pay period to account for the fact that the furloughs were to be delayedby a
month, because the MOU would not be effective until August 1, 2009.
23

I knew that information early on in the process. But there
th
was a date beyond which, I think was the 29
	of
July, that we
could not pass because those people would get their step
increases.
Q:
	...
So, was it the increase for the IT workers, along with
...
the items not being credited to the new budget that in your mind
th
had July
2ih
or
28
	as the end date?
A: 	Yes.
(RT, Vol. III, pp. 139-140.)
This testimony more than adequately supports the ALJ' s finding that the County
declared impasse not because negotiations were genuinely at an impasse, but because it sought
to avoid paying the step increases and sought to avoid July expenses from being shown
on
the
new fiscal year budget.
3. 	Implementation
of
the Suspension
of
Step Increase Was Not Permitted Simply
Because SEID Agreed to Such a Proposal
The County next claims that the ALJ erred in holding that the County's unilateral
change in policy concerning step increases violated MMBA section 3505.
11
The County
asserts that, because the elimination
of
the step increase was contemplated within its LBFO,
and in fact had been agreed to by SEIU, it was free to implement that term once the County
declared impasse. We deny this exception for two
of
reasons. First, it assumes that the
impasse was bona fide, a conclusion we reject.
We also disagree that an employer is free to unilaterally implement terms and
conditions
of
employment to which an employee organization has tentatively agreed to pre
11
MMBA section 3505 requires public agencies to "meet and confer in good faith
regarding wages, hours, and other terms and conditions of employment with representatives of
such recognized employee organizations." 
24

As we have noted in recent decisions, bargaining in good faith is a complex web
of
trade-offs and compromises, requiring a fluidity
of
positions. Parties frequently make
concessions on one subject based on concessions the other side offers to make, a process that
is
the essence
of
good faith collective bargaining. (Los Angeles Unified School District (2013)
PERB Decision No. 2326; San Jose, supra, PERB Decision No. 2341-M.) Just
as
we have
condemned piece-meal bargaining, we will not condone an employer selectively implementing
terms prior to a bona fide impasse, even
if
the employee organization has tentatively agreed to
such term during negotiations preceding the impasse. An employer is not privileged to
implement an agreed-upon concession made
as
a tentative agreement unless there was a
legitimate impasse reached on negotiations as a whole. (Visiting Nurse Services
v.
NLRB
(1
st Cir. 1999) 177 F.3d 52; E.I. Du Pont &
Co.
(1991) 304 NLRB 792.) This is especially true
where, as here, the parties were exchanging package proposals at this stage in their bargaining.
4. 	PERB's Authority to Order a Remedy Affecting County Employees' Wages
The County asserts that it alone has exclusive authority to set its own wages.
(County Exceptions, p. 10) and cites Article XI, Section 1(b)
of
the California Constitution,
relying on County
of
Riverside
v.
Superior Court (2003) 30 Cal.4
th
278 (County
of
Riverside);
and Dimon
v.
County
of
Los Angeles (2008) 166 Cal.App.4
th
1276.) Although not well
developed, this argument implies that PERB does not have the authority to order any remedy
contrary to the County's own determination regarding the step increases.
As an initial matter, PERB is constitutionally prohibited from declaring any of the
statutes it administers unconstitutional. 12
(Regents
of
University
of
California
v.
Public
12
Article III, Section 3.5 of the California Constitution provides, in relevant part:
An administrative agency
...
has no power:
25

Relations
Bd.
(1983) 139 Cal.App.3d 1037, 1042; Greener
v.
Workers' Comp.
Appeals
Bd.
(1993) 6 Cal.4 th 1028; Regents
of
the University
of
California (1999) PERB
Decision No. 1359-H,
p.
16; The Regents
of
the University
of
California (1998) PERB
Decision No. 1301-H, pp. 18-19.) Thus, any argument that PERB should refrain from
enforcing the MMBA by ordering a back-pay remedy, because such an order is
unconstitutional cannot be considered by this agency.
We also conclude that the County's reliance on County
of
Riverside, supra,
30 Cal.4
th
278, is misplaced. That case declared unconstitutional Senate Bill (SB) 402, which
provided for binding interest arbitration to resolve contract disputes between local agencies
and unions representing firefighters or law enforcement officers. The Court based its
determination on two separate provisions
of
Article XI
of
the California Constitution.
Subsection 1(b)
of
Article XI grants to local jurisdictions the plenary authority to set employee
compensation.
13
The statute provided that impasse over wages and other terms and conditions
of
employment would be resolved by a panel
of
three arbitrators that was empowered to
determine the final terms and conditions
of
employment by selecting between the LBFO
of
the
respective parties. In the Court's view, this provision removed from counties, the authority to
set compensation and therefore violated Article XI, Section 1(b
).
(a) 	To declare a statute unenforceable, or refuse to enforce a
statute, on the basis of it being unconstitutional unless an
appellate court has made such a determination that such
statute is unconstitutional;
(b) To declare a statute unconstitutional;
13
Section 1(b) provides, in relevant part: "The governing body [of each county] shall
provide for the number, compensation, tenure, and appointment of employees."
26

the Court distinguished
SB
402 from the MMBA and cited with approval
People ex rel. Seal Beach Police Officers Assn.
v.
City
of
Seal Beach (1984)
36
Cal.3d 591
(Seal Beach), noting the critical distinction between, on the one hand, a binding tribunal that
divested a county's authority to set wages and, on the other hand, a process-meeting and
conferring-by
which disputes over wages and other working conditions are to be resolved.
As the MMBA establishes a procedure for negotiating over wages, hours and other conditions
of
employment without mandating standards for those wages, hours and other conditions
of
employment, it does not contravene Article XI, Section 1
(b
).
	As the Court noted in Seal
Beach, "While the Legislature established a procedure for resolving disputes regarding wages,
hours, and other conditions
of
employment, it did not attempt to establish standards for the
wages, hours and other terms and conditions themselves." (Seal Beach,
p.
597, emphasis
added.)
The County's implication that PERB cannot constitutionally order the County to
retroactively pay step increases also misapprehends the difference between PERB' s remedial
authority to cure violations
of
the MMBA and the prescriptive establishment
of
a wage rate.
(City
of
Pasadena (2014) PERB Order No. Ad-406-M: "because the back pay award does not
impose a prospective substantive obligation on [the City] with respect to employee
compensation and seeks only to enforce [the union's] procedural rights to bargain collectively,
it does not exceed PERB's authority under the MMBA nor run afoul
of
well-settled
constitutional boundaries.") (Citations omitted.)
SB 402 was also deemed to be constitutionally infirm because by delegating to a panel
of arbitrators, the power to decide economic issues, the statute violated Article
11
(a), which
forbids the Legislature from delegating to a private person or body the power to "control,
appropriate, supervise or interfere with
....
municipal functions." To the extent the County
27

that this applies
to
PERB, it is mistaken. Arbitrators are private persons. They are not
public officials, and
SB
402 could not confer upon them the power
to
fix salaries pursuant to
Article 1 l(a).
PERB, in contrast, is a public body staffed with public officials and is statutorily
authorized to administer and enforce the MMBA, including fashioning remedies for violations.
(MMBA, § 3509(a).) Since the constitutionality
of
the MMBA has been established in
Seal Beach, supra,
36
Cal.3d 591, and since the remedial provisions
of
the MMBA now reside
with PERB in the first instance, rather than with the courts, the holding
of
County
of
Riverside,
supra, 30 Cal.4
th
278, with respect to private arbitration panels does not divest PERB
of
its
jurisdiction to remedy violations
of
the MMBA.
Allegations
of
Bias
While not styled as an exception, the County reiterates its request for a Board
investigation
of
its claims that the Board agent who investigated the charge and issued the
complaint was biased. In support
of
its claim, the County attached to its brief in support
of
its
exceptions a letter its counsel had written to PERB 's former General Counsel on August 10,
2010, requesting an investigation into alleged bias. However, this letter was not introduced
into evidence at the hearing in this case and is therefore not part
of
the record before us.
(PERB Reg. 32300(b) "Reference shall be made in the statement
of
exceptions only to matters
contained in the record of the case.") The County complains that its request for an
investigation
of
its bias claim was never investigated or resolved.
If
the County believed that
the investigating Board agent was biased, it could have requested that she disqualify herself
pursuant to PERB Regulation 32155(c).14 This regulation provides a mechanism for a party to
14
PERB Regulation 32155(c) provides, in pertinent part:
28

bring claims
of
bias to the attention
of
a Board agent, so that Board agent may, under
appropriate circumstances, recuse himself or herself at the beginning
of
an investigation.
The County provides no cogent reason it failed to avail itself
of
this procedure to
request the Board agent's recusal immediately when it allegedly had reason to believe she was
biased against it. Having not done so at the outset
of
the investigation
of
the unfair practice
charge, the County may not be heard to complain now. (Brawley Union High School District
(1983) PERB Decision No. 266a.)
At the commencement
of
the formal hearing
of
this case, the County made a motion to
the ALJ, contending that the complaint contained allegations that did not appear in the unfair
practice charge, Case No. LA-CE-577-M, and requesting that "the complaint be investigated
by PERB internally
...
for the appropriateness of, one, whether a complaint was even
appropriate to be issued on the charges made in the charge, and two, even
if
so, then what
would be appropriate to put in the formal complaint." (RT, Vol.
I,
pp. 8-9.) The ALJ noted
that he did not understand that he was being asked to do anything, since the original letter was
addressed to PERB's General Counsel. He then proceeded to conduct the formal hearing. No
interlocutory appeal was filed. 	(See PERB Reg. 32200.) Nor did the County make a motion to
strike those portions
of
the complaint it deemed outside the scope
of
the allegations in the
unfair practice charge, either at the hearing or when it filed its answer to the complaint in April
2010. It could have easily done so under PERB Regulation 32190.
Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned
....
If the Board agent
admits his or her disqualification, such admission shall be
immediately communicated to the General Counsel
...
who shall
designate another Board agent to hear the matter.
29

County has not been treated unfairly by
PERB's
case processing. After the
complaint was issued, the investigating Board agent had no further involvement in this case.
Once a complaint issues, PERB assigns a different Board agent to preside over the informal
conference. 	Such a procedure was followed in this case. 	After the informal conference, the
case was transferred to
PERB's
Division
of
Administrative Law where it was assigned to the
ALJ.
At the evidentiary hearing, the County was given full opportunity after the issuance
of
the complaint to rebut the allegations contained therein, to present its defense and fully argue
to the ALJ why the complaint should be dismissed on the merits.
We conclude that by not moving to disqualify the Board agent in November 2009,by
not moving to strike those parts
of
the complaint it believed were inappropriately included, and
by not filing an interlocutory appeal
of
the ALJ's ruling at the outset
of
the hearing, the County
waived its right to complain about these matters at this stage in the proceedings. For this
reason and because, as a practical matter, the County had the right to fully defend against the
allegations contained in the complaint, we reject its claim
of
bias.
The Remedy
Both parties except to the proposed remedy, albeit for very different reasons. SEIU
excepts to the ALJ' s finding that over 200 bargaining unit members completed a year
of
service on July 29, 2009, claiming that the ALJ confused the date
of
completing a year
of
service with the "anniversary date" as defined in the MOU. The result
of
this confusion,
according to SEIU, is that the vast majority
of
employees who were entitled to the step
increase before the new MOU took effect on August 1, 2009, were deprived
of
that increase.
The County excepts to the ALJ's findings of fact concerning employees' anniversary
date. 	It claims that approximately 20 employees had an anniversary date on July 29, 2009,
30

had an anniversary date on July 30, 2009, "and the high majority
of
the employees
were
eligible to receive step increases on July 31." (County's Exception,
p.
13.)
As noted previously, the MOU defines "anniversary date," as "the first day
of
the
pay
period following the completion"
of
a year in paid status. (MOU, Art. V.) Thus, an
"anniversary date" could fall any time between one and 14 days after the employee completed
a year
of
service, because pay periods are 14-days long. The parties stipulated that July 30,
2009, was a Thursday, and the evidence showed that pay periods begin on Thursdays.
The evidence also shows the following. 	The date an employee is entitled to receive a
step increase is shown on his or her paystub. The end
of
the last pay period in July 2009 fell
on July 29, 2009. Thus, July 30, 2009, was the first day
of
the following pay period.
(Respondent's Exh. 3.) Respondent's Exhibit
81
is a list
of
336 employees whose "step
increase date" the year before was on July 31, 2008. We take administrative notice that
July 31, 2008 fell on a Thursday.
Of
those 336 employees listed on Respondent's Exhibit 81,
the County deemed 241 "eligible".
Contrary to the County's exception, its Exhibit
81
lists the step increase dates for 2008,
not 2009. The County is correct that the majority
of
employees listed on this document had an
anniversary date
of
July 31, 2008, the first day
of
that pay period in 2008. However, this
document supports SEIU's claim that these same employees (or the vast majority
of
them)
were entitled to the step increase on the first day
of
the relevant pay period the following year,
i.e., on July 30, 2009.
On September 28, 2009, SEID requested from the County a list
of
employees who did
not receive step increases effective July 29, 30, and 31, 2009, and for an explanation
of why
those individuals did not receive the raise. 	The County replied, attaching a list entitled "SEID
Step Increase Suspension" consisting of approximately 237 names, all of whom had a previous
31

step increase date
of
either July 31, 2008 or July 29, 2008. The County explained
that these employees were not paid a step increase in 2009 because "SEIU's contract expired
on June 30, 2009 and we imposed new terms and conditions effective July 30, 2009. The
effective date
of
the new contract is August
1,
2009. Therefore, the terms and conditions
applied until the ratification
of
the new contract." (SEIU's Exh. ZZ.)
These documents, combined with Komers testimony,
15
establish that there were over
200 bargaining unit members who were entitled to receive a step increase on July 30, 2009, the
first day
of
the pay period following the completion
of
their year
of
service. 16 July 30, 2009,
was their "anniversary date,"
as
that term is used in the MOU. We, therefore, correct the
ALJ's finding
of
fact on page 3
of
the proposed decision that reads:	
"It
appears that over 200
SEIU unit members completed a year
of
service on July 30, 2009, while about 20 unit
members completed a year
of
service on July 28, 2009." The record shows that over 200 unit
members had their "anniversary date" on July 30, 2009, the first day
of
a pay period. They had
completed a year
of
service on any
of
the 14 days within the previous pay period.
Accordingly, with that clarification, we affirm the ALJ's make-whole remedy for unit
members whose "anniversary date" fell on July 30, 2009.
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the County of Riverside (County) violated the Meyers-Milias Brown Act
Komers was asked: "So, assuming there is no new MOU and no bona fide impasse
reached, those step increases for several hundred IT workers was scheduled to occur at the end
of
July, correct?" He replied: 	"That is my understanding, yes." (RT Vol. III, p. 140: 18-26.)
16 We do not rely on the County's Exhibit 82, despite the fact that counsel for SEIU
attached it to his statement of exceptions. This exhibit was not received into evidence due to
objection from counsel for SEIU. Attaching the excluded exhibit violates PERB
Regulation 32300(b) which provides "[r]eference shall be made in the statement of exceptions
only to matters contained in the record of the case."
32

Government Code section 3501, et seq., by unilaterally changing its policy
regarding step increases for eligible employees prior to completing negotiations.
Pursuant
to
section 3509(b)
of
the Government Code, it is hereby ORDERED that the
County, its governing board and its representatives shall:
A.
	CEASE AND DESIST FROM:
Unilaterally changing its policy regarding step increases.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Make whole, with interest at the rate
of
seven (7) percent per annum,
those employees whose "anniversary date,"
as
defined by Article V, Section 1
of
the 2006
2009 memorandum
of
understanding with Service Employees International Union, Local 721
(SEIU), fell on July 30, 2009, and who otherwise would qualify for a step increase on that date,
but for the County's unilateral elimination
of
the step increase.
2.	
Within ten (10) workdays
of
the service
of
this decision, post at all work
locations where notices to employees in the County are customarily posted, copies
of
the
notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the County, indicating that it will comply with the terms
of
this Order. Such posting shall be
maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced, or covered with other material.
In addition to physical posting of paper notices, the Notice shall be posted by electronic
message, intranet, internet site, and other electronic means customarily used by the County to
communicate with its employees in the bargaining unit represented by SEIU. (City
of
Sacramento (2013) PERB Decision No. 2351-M.)
33

Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The County shall provide reports, in writing, as directed by the General
Counsel or her designee. All reports regarding compliance with the Order shall be
concurrently served on SEIU.
Members Huguenin and Banks joined in this Decision.
34

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-577-M, Service Employees
International Union, Local
721
v.
County
of
Riverside, in which all parties had the right to
participate, it has been found that the County
of
Riverside (County) violated the Meyers
Milias-Brown Act (MMBA), Government Code section 3500 et seq., by unilaterally changing
its policy regarding step increases for eligible employees prior to completing negotiations.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Unilaterally changing its policy regarding step increases.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1.	
Make whole, with interest at the rate
of
seven (7) percent per annum,
those employees whose "anniversary date," as defined by Article V, Section 1
of
the 2006-
2009 memorandum
of
understanding with Service Employees International Union, Local 721
(SEIU), fell on July 30, 2009, and who otherwise would qualify for a step increase on that date,
but for the County's unilateral elimination
of
the step increase.
Dated: 	COUNTY OF RIVERSIDE
---------
By:------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SEIU LOCAL 721,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-577-M
PROPOSED DECISION
(7/15/2011)
Appearances: 	Weinberg, Roger & Rosenfeld by Alan G. Crowley, Attorney, for SEIU
Local 721; The Zappia Law Firm by Edward P. Zappia and Day B. Hadaegh, Attorneys,
for County of Riverside.
Before Thomas J. Allen, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges an employer unilaterally changed a policy concerning step
increases in violation of Meyers-Milias-Brown Act (MMBA) section 3505 and PERB
Regulation 32603(c). 1 The employer denies any violation oflaw.
SEIU Local 721 (SEIU) filed an unfair practice charge against the County of Riverside
(County) on November 9, 2009. The Office of the General Counsel of the Public Employment
Relations Board (PERB or Board) issued an unfair practice complaint (Complaint) against the
County on March 17, 2010. The County filed an answer to the Complaint on April 27, 2010.
PERB held an informal settlement conference on April 30, 2010, but the case was not
settled. PERB held a formal hearing on August 30-31, September 1 and October 6, 2010.
With the receipt of the post-hearing briefs on January 10, 2010, the matter was submitted for
decision.
1 The MMBA is codified at Government Code section 3500 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq.

OF FACT
The County is a public agency under the MMBA and PERB Regulations. SEIU is an
exclusive representative of four units of County employees.
The alleged unilateral change
The Complaint alleges in part:
8. 	Before July 29, 2009, Respondent's policy
concerning employee step increases was that employees were
entitled to the step increase on their employment anniversary
date.
9. 	On or about July 29, 2009, Respondent changed
this policy by refusing to grant step increases to those employees
whose employment anniversary date fell on July 29, 30 or 31,
2009.
The policy referenced in the Complaint was set forth in Article V ("Pay Practices"), Section 1
("Step Advance") of the parties' Memorandum of Understanding for 2006-2009 (2006 MOU),
which stated in part:
A. 	The compensation of every person employed in a regular
position on a step basis shall be considered for increase upon
their anniversary date, except as herein otherwise provided.
C. 	Employees appointed on or after January 9, 1992:
The first anniversary date as a result of an original
appointment shall be the first day of the pay period following the
completion of one year in a paid status in the position not
including overtime. 	[Emphasis added.]
The second anniversary date shall be the first day of the
pay period following the completion of an additional one year in
a paid status, not including overtime, and subsequent anniversary
dates shall occur at like intervals. 	[Emphasis added.]
The 2006 MOU thus gave a special technical meaning to the term "anniversary date." Because
County pay periods are 14-days long, an employee's "anniversary date" could be 1 to 14 days
after the employee completed a year in a paid status.
2

2009, the dates of July 16 and July 30 were the first days of pay periods. The date of
July 30 was therefore the "anniversary date" for employees who completed a year in a paid
status from July 16 to July 29. The "anniversary date" for employees who completed a year
from July 30 to August 12 was August 13, 2009, the first day of the next pay period. It appears
that over 200 SEIU unit members completed a year of service on July 30, 2009, while about 20
unit members completed a year of service on July 28, 2009.
The 2006 MOU expired by its terms at midnight on June 30, 2009, while the parties
were engaged in negotiating a successor MOU. On July 22, 2009, the County's lead negotiator
declared impasse. 	On July 27, 2009, the County sent a letter to an SEIU representative,
stating:
Representatives of the County have been meeting with
you and other representatives of SEIU, Local 721 for
approximately four months to negotiate a renewal of the
2005 [sic ]-2009 Memorandum of Understanding.
The fundamental issue in these negotiations, from the
County's perspective, has been reducing payroll costs to respond
to the current budget situation faced by the County.
Unfortunately the parties have been unable to agree on the
necessary cuts to reach the County's budgetary targets and have
reached an impasse in the negotiations.
Section 15 of the County's Employee Relations
Resolution No. 99-3 79 provides several options when the parties
are unable to conclude an agreement. The first three require
mutual agreement of the parties and the fourth requires action of
the Board of Supervisors.
Given the nature of the issues that separate the parties, the
County does not believe that mediation, fact-finding, or other
impasse resolution procedure will break the log jam. On that
basis the Board of Supervisors has acted to give me authority to
unilaterally impose terms and conditions of employment.
Enclosed is a document outlining the terms and conditions
of employment for the units you represent, including the Parks
and Waste District employees. These will be effective as of
3

30, 2009, and will continue in effect until June 30, 2010, the
end of the current fiscal year; unless a new MOU has been
negotiated, ratified, and adopted by the Board before that time.
There is no other evidence whether, when or how the County Board of Supervisors (County
Board) acted as described in the letter.
The County's Employee Relations Resolution (ERR) defines impasse:
IMPASSE means a deadlock in the meet and confer
process between a recognized employee organization and the
County over any matters subject to that process.
The ERR further provides in part:
Section 15 	IMPASSE PROCEDURE
a. 	Impasse procedures shall not be requested by
either party until all attempts at reaching an agreement through
meeting and conferring have been unsuccessful.
1. 	The parties may mutually agree to request
the assistance of a mediator from the California State
Conciliation S_ervice or any other mutually agree[ d] upon
mediator.
2. 	The parties may mutually agree to request
the assistance of a fact-finder.
3. 	The parties may mutually agree to any
other impasse-resolving procedure.
4. 	The Board may determine on the action to
be taken with or without a hearing thereon.
Apart from the letter of July 27, 2009, there is no evidence whether, when or how the County
requested impasse procedures.
In a letter dated July 28, 2009, SEIU insisted that "the parties are not yet at impasse"
but also stated in part:
The Union [SEIU] is therefore willing to participate in either the
mediation or fact-finding suggested by your own [ERR] and
4

that the County reconsider its decision to bypass these
procedures which frequently facilitate mutual agreement.
In a letter dated July 29, 2009, the County replied in part:
The County finds that the circumstances warrant and require
unilateral implementation of the Terms and Conditions of
Employment as set forth above. We are proceeding with
implementation but remain agreeable to continued negotiations to
reach mutual agreement on a new MOU.
The County unilaterally imposed Terms and Conditions of Employment (TCE) on SEIU unit
members effective July 30, 2009. Among other things, the TCE suspended step increases for
the duration of the TCE.
Notwithstanding the County's declaration of impasse and imposition of the ICE, the
parties continued to meet, and on August 19, 2009, they reached a tentative agreement on a
successor MOU for 2009-2010 (2009 MOU). As later signed and ratified by the parties, the
2009 MOU provided in part (in Article 5, Section 1):
Special Provision: 	Step increases for all classifications shall be
suspended for the duration of the MOU.
By its terms, the 2009 MOU was to be "in effect from August 1, 2009, to midnight June 30,
2010."
The 2009 negotiations
The parties had begun meeting and negotiating a successor to the 2006 MOU on
March 26, 2009. Neither the County's ERR, nor the 2006 MOU, nor any ground rules between
the parties set a deadline for the completion of negotiations. In the 2009-2010 final budget
recommendations sent to the County Board on June 24, 2009, the County said it had "targeted
July 28 as the deadline to finalize labor contracts," but there is no evidence that SEIU agreed to
this or any other deadline.
5

the negotiations, the County's stated goal was to reduce personnel costs
10 percent. Not surprisingly, SEIU resisted such a reduction. At the same time, SEIU sought
to get more employees overtime pay and to get stewards regular pay for conducting steward
business during regular work hours. The County resisted these changes. Negotiations were
difficult.
On July 9, 2009, at the parties' 14th meeting, the County made what it called its "Final
Offer." The County proposed no expansion of overtime pay and no steward pay. The County
also proposed mandatory furloughs of "up to two (2) days per month." Furthermore, the
County proposed the suspension of step increases for the duration of the MOU, which was to
be July 1, 2009 through June 30, 2010. SEIU did not accept the County's "Final Offer."
On July 17, 2009, the County made what it called it's "Last Best and Final Offer"
(LBFO). As in its "final offer," the County proposed no expansion of overtime pay and no
steward pay. The County also proposed mandatory furloughs of "twenty-four (24) days ( one
hundred ninety-two (192) hours) beginning August 14, 2009." Furthermore, the County
proposed the suspension of step increases for the duration, which was to be from adoption by
the County Board through June 30, 2010. On July 20, 2009, the County made a slightly
revised LBFO.
On July 21, 2009, SEIU twice countered the County's LBFO. In both of its
counterproposals, SEIU still sought expanded overtime pay. It also still sought steward pay,
but "with exception [sic] to eliminate any new economic costs to County that may be in such
proposal." It also proposed, however, the suspension of all step increases for the duration of
the MOU, which was to be from ratification through June 30, 2010.
In its first counterproposal of July 21, 2009, SEIU further proposed mandatory
furloughs for a maximum of "4 hours per pay period (104 hours/year) for the duration of the
6

In its second counterproposal of the day, SEIU proposed mandatory furloughs for a
maximum of "8 hours per pay period for the duration of the contract."
On July 22, 2009, the parties met for the 16th time, expecting to reach agreement that
day. 	Having previously signed 10 tentative agreements, they signed 18 more, including one
setting the term of the MOU as August 1, 2009, through June 30, 2010. 	They verbally agreed
to 208 total hours of mandatory furloughs. 	They apparently did not discuss the suspension of
step increases, presumably because they seemed to have agreed on that subject.
With regard to overtime pay, SEIU's regional director, Steve Matthews (Matthews),
testified about a sidebar with the County's human resources director Ron Komers (Komers):
Well, actually he [Komers] was insistent on as [sic] not being
overtime on all hours but it had to be on hours worked. 	And we
showed him a proposal where we would get there, and he said
good. 	This looks like we're making progress. We should be able
to move on this issue was what he had said in the sidebar.
The bargaining notes of both parties indicate that at the table Komers expressed a willingness
to take an overtime pay proposal to the County Board. According to SEIU's notes, Komers'
willingness was dependent on giving the County "leeway to make up that [cost] difference."
According to the County's notes, his willingness was dependent on "some degree of certainty
of how much this is going to cost."
With regard to steward pay, SEIU proposed limiting it to representational stewards
only. 	Komers rejected steward pay for anyone, and he declared that the parties were at
impasse on both steward pay and overtime pay. According to Komers' own testimony,
Matthews responded that "there's a lot of issues we are still ready to [talk] about" and that "the
stewards' language was not a deal breaker." Komers insisted the parties were "done" and
would not meet again on July 27, 2009, as previously scheduled.
7

parties nonetheless did meet briefly on July 27, 2009. The County submitted an
amended LBFO responding to SEIU's counter proposals of July 22, 2009, specifically
rejecting SEIU's proposals on overtime pay and steward pay. Komers insisted the parties were
at impasse. Matthews disagreed, stating SEIU had room to move on steward pay and overtime
pay. SEIU had proposals prepared, but the County refused to entertain them. Komers said the
County would implement terms and conditions of employment on July 30, 2009, but would be
open to negotiations from that point forward. 	After the meeting, the County issued its letter of
July 27, 2009, quoted above.
As stated above, the parties continued to meet. On August 5, 2009, Matthews and
Komers met with Supervisor Jeff Stone of the County Board. Matthews testified about their
conversation:
It was really centered around the overtime question and
where we were apart and what was important to us. He made it
very clear that, you know, the stewards' question was not the, not
something that was going to hold us up. 	It was all about the
overtime. We spoke for two hours and 15 minutes explaining
what was real on the overtime and what was not real on the
overtime in terms of the costs.
And finally, after two hours and 15 minutes, I very
pointedly turned to Supervisor Stone and said, look, you're being
told numbers that are incorrect. Let me use Ron Komers' own
numbers to you on the issue because I think it's illustrative when
you get down to the back and forth on all the numbers that we
were given, the overtime additional costs on, based on the
language that we're proposing would be four million dollars.
And Supervisor Stone looked at Ron Komers and said, is
that correct. Because we were using Ron's numbers. And Ron
said, yeah, that's correct. 	They'd given a number, a larger
number, but that included another issue of overtime. See, when
there is furloughs, people that are exempt employees end up
getting overtime, even if they're exempt, even if they don't have
rights by a contract, they have, they're considered non-exempt for
the purpose of overtime in a furlough week. So, we had to get
him to admit what he was giving us a number with everything
8

together, but our language would have given a four million
dollar extra cost.
So, when it was clear to Supervisor Stone that the
overtime would be four million, the furloughs with the number
that Ron Komers had given was 52 million savings, at that point,
Supervisor Stone turned to Ron Komers after two hours and 15
minutes, just turned around to him and said, make the deal, that
we can live with this. And that actually is what got us to
conclusion.
Ultimately, the County gave in on overtime pay, and SEIU gave in on steward pay.
On August 24, 2009, Komers submitted the 2009 MOU to the County Board for
approval, along with the following background information:
SEIU, which represents approximately 5,900 employees,
asked to open negotiations for a new Memorandum of
Understanding. Discussions started on March 26, 2009, and
twenty three (23) bargaining sessions were held. A tentative
agreement for a new eleven ( 11) month Memorandum of
Understanding, covering August 1, 2009, through June 30, 2010,
was reached on August 19, 2009. The cost of the contract does
not exceed the parameter given by the Board of Supervisors and
it achieves the goal of a 10% reduction in salary costs for fiscal
year 2009-2010, a cost savings of approximately $48.4 million.
Most terms also apply to the Regional Parks and Open Space
District and the Water Resources Management Districts. SEIU
has advised that they plan to have this agreement ratified by
ballot of the represented members and will notify us on or about
September 1, 2009, of its ratification.
By my count, the parties held about 18 (not 23) actual bargaining sessions. In any case, the
MOU was approved.
Komers' hearing testimony revealed one reason he had wanted to end negotiations in
July: he knew that many SEIU members would soon be eligible for step increases. He
testified:
I knew that information early on in the process. But there was a
date beyond which, I think was the 29th of July, that we could not
pass because those people would get their step increases.
9

does not appear, however, that Komers told SEIU that those particular step increases were an
issue in negotiations.
ISSUE
Did the County unilaterally change policy concerning step increases?
CONCLUSIONS OF LAW
In determining whether a party has violated MMBA section 3505 and PERB
Regulation 32603(c), PERB utilizes either the "per se" or "totality
of
the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.)2 Unilateral
changes are considered "per se" violations
if
certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802; Walnut Valley Unified School District (1981) PERB
Decision No. 160; San Joaquin County Employees Association
v.
City
of
Stockton (1984)
161
Cal.App.3d 813; Grant Joint Union High School District (1982) PERB Decision No. 196.)
MMBA section 3505.4 states:
If after meeting and conferring in good faith, an impasse has been
reached between the public agency and the recognized employee
organization, and impasse procedures, where applicable, have
been exhausted, a public agency that is not required to proceed to
interest arbitration may implement its last, best, and final offer,
but shall not implement a memorandum
of
understanding. The
unilateral implementation of a public agency's last, best, and final
offer shall not deprive a recognized employee organization of the
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)

each year to meet and confer on matters within the scope
of
representation, whether or not those matters are included in the
unilateral implementation, prior to the adoption by the public
agency
of
its annual budget, or as otherwise required by law.
In the present case, the County's ERR does provide for impasse procedures, but they are not to
be requested "until all attempts at reaching an agreement through meeting and conferring have
been exhausted."
The central question in this case, as argued by the parties, is whether there was a
genuine impasse that could justify unilateral implementation under the MMBA and the
County's ERR. I conclude that there was not a genuine impasse, because under the ERR not
"all attempts at reaching an agreement through meeting and conferring [had] been exhausted"
when the County declared impasse.3
The County declared impasse on steward pay and overtime pay. 	With regard to steward
pay, Matthews told Komers on July 22, 2009, that "the stewards' language is not a deal
breaker." On July 29, 2009, Matthews told Komers that SEIU still had room to move on
steward pay. 	It thus appears that the parties had not exhausted all attempts to reach an
agreement on steward pay. Ultimately, SEIU gave in on the issue.
With regard to overtime pay, Komers told Matthews in a sidebar on July 22, 2009, that
the parties were making progress and should be able to move. At the table, Komers expressed
a willingness to take an overtime pay proposal to the County Board, depending on some
certainty as to cost and/or leeway in making up that cost. On July 27, 2009, Matthews told
Komers that SEIU still had room to move on overtime pay. It thus appears that the parties had
SEIU also argues that "the County bargained in bad faith and therefore a bona fide
impasse was not reached." Because I conclude for other reasons that there was no genuine
impasse, I find it unnecessary to address the issue of the County's alleged bad faith.
11

not exhausted all attempts to reach an agreement on overtime pay. Ultimately, the County
gave in on the issue, finding the cost
of
overtime pay to be acceptable.
It appears that when the County declared impasse the parties not only had room to
move but also had momentum. 	On July 21, 2009, SEIU for the first time proposed mandatory
furloughs that could save the County over $50 million. On July 22, 2009, the parties signed
18
tentative agreements, bringing the total to 28. Komers nonetheless verbally declared
impasse that same day.
The County seemed to acknowledge that not all attempts to reach an agreement had
been exhausted. 	On July 27, 2009, Komers said the County would be open to negotiations
after July 30, 2009. In its letter
of
July 27, 2009, the County said it "remain[ed] agreeable to
continued negotiations to reach mutual agreement on a new MOU."
In some ways, the question is whether the County took unilateral action because
there was an impasse, or whether the County declared impasse because it wanted to take
unilateral action. Komers testified to his understanding that there was a bargaining date
"beyond which,
...
we could not pass because those people [SEIU unit members] would get
their step increases." It appears that the County made the choice to deal with those step
increases unilaterally rather than through negotiations.
I conclude that there was not a genuine impasse and that the County's unilateral
change in policy concerning step increases therefore violated MMBA section 3505 and
PERB Regulation 32603(c). Because this conduct denied SEIU's rights and interfered with
the rights of unit members, it also violated MMBA sections 3503 and 3506 and PERB
Regulation 32603(a) and (b).
12

REMEDY
MMBA section 3509(b) states:
A complaint alleging any violation of this chapter or of any rules
and regulations adopted by a public agency pursuant to Section
3507 or 3507.5 shall be processed as an unfair practice charge by
the board. The initial determination as to whether the charge of
unfair practice is justified and, if so, the appropriate remedy
necessary to effectuate the purposes of this chapter, shall be a
matter within the exclusive jurisdiction of the board. The board
shall apply and interpret unfair labor practices consistent with
existing judicial interpretations of this chapter.
In the present case, the County has been found to have violated the MMBA by unilaterally
changing policy on step increases. 	It is therefore appropriate to order the County to cease and
desist from such conduct.
It is also appropriate to order the County to make whole those employees adversely
affected by the unilateral change. 	It should be noted that those employees are limited to the
ones whose "anniversary date," as defined by Article V, Section 1, of the 2006 MOU, fell on
July 30, 2009. Employees whose "anniversary date" fell on August 13, 2009, ultimately were
affected by the 2009 MOU, which was effective August 1, 2009, rather than by the County's
unilateral action.
It is also appropriate to order the County to post a notice incorporating the terms of the
order in this case. (Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that the County of Riverside (County) violated the Meyers-Milias-Brown Act
(Act), Government Code section 3500 et seq. The County violated the Act by unilaterally
changing policy on step increases.
13

Pursuant to section 3509(b) of the Government Code, it hereby is ORDERED that the
County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Unilaterally changing policy on step increases.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Make whole those employees whose "anniversary date," as defined by
Article V, Section 1, of the 2006-2009 Memorandum of Understanding with SEIU Local 721
(SEIU), fell on July 30, 2009, qualifying them for a step increase on that date.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the County customarily are posted,
copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the County, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on SEIU.
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
Board itself within 20 days of service of this Decision. The Board's address is:
14

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, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. 	(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 concurrently with its
filing upon each party to this proceeding. 	Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
15
Thomas J. Allen
Administrative Law Judge