County of Tulare * * * VACATED IN PART by County of Tulare (2016) PERB Decision No. 2414a-M (PERB 2414M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 521,
Charging Party,
v.
COUNTY OF TULARE,
Respondent.
·
Case No. SA-CE-748-M
.PERB Decision No. 2414-M
February 26, 2015
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Attorney, for Service
Employees International Union, Local 521; Renne, Sloan, Holtzman & Sakai by Erich W.
Shiners, Attorney, for County of Tulare.
Before Huguenin, Winslow and Banks, Members.
DECISION.
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed.by Service Employees International Union, Local 521 (SEID) to
the proposed decision of an administrative law judge (ALJ). The complaint alleged that the
County of Tulare (Tulare) violated its duty to bargain, in violation of the Meyers-Milias-
Brown Act (MMBA) and PERB Regulations, 1 by unilaterally altering its policy, as contained
in Addenda Band C of the parties' expired 2009-2011 Memorandum of Understanding
(MOU), of providing promotions and merit pay increases for employees in flexibly allocated
classifications.
The ALJ concluded that, because the parties had reached a bona fide impasse in
negotiations, and because the 2009-2011 MOU expired on August 1, 2011, the County was
authorized by MMBA section 3505.7 (former section 3505.4) to implement a proposal to
1 MMBA is codified at Government Code section 3500, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. PERB Regulations are
codified at California Code of Regulations, title 8, section 31001, et seq.
* * * VACATED IN PART by County of Tulare (2016) PERB Decision No. 2414a-M * * *

reinstitute a ''freeze" on flex promotions and merit pay increases. The ALJ also rejected
SEITJ's contention that the County unlawfully repudiated the provisions of Addenda Band C.
SEID excepts to the ALJ's findings of fact and conclusions oflaw. It argues that
Addenda B and C of the 2009-2011 MOU established future rights of employees to deferred
promotions and compensation, that such rights survived expiration of the MOU, and that, in
accordance with the express language of Addenda B and C, these benefits became due and
owing on the first pay period following expiration ofthe-2009-2011 MOU. The County denies
that the 2009-2011 MOU established future rights to promotions and pay increases that
survived expiration of the MOU. It argues that, after bargaining to impasse, it was authorized
by MMBA section 3505.7 to impose terms and conditions of employment, including a
continued Jreeze on promotions and pay increases provided for by its own Personnel Rules.
Accordingly, the County urges the Board to adopt the proposed decision.
Having reviewed the parties' briefs and the entire record in this matter, we agree with
the ALJ's conclusion that, upon reaching a bona fide impasse in negotiations and, in the
absence of any applicable impa~se resolution procedures, the County was privileged to impose,
on a prospective basis, terms and conditions of employment that would re-freeze its schedule
for promotions and pay increases for employees in flexibly allocated classifications. However,
we disagree with the ALJ's conclusion-that the promise contained in Addenda Band C of the
2009-2011 MOU to restore employees to the Coimty's preexisting promotion and pay schedule
did not survive expiration of the parties' 2009-2011 MOU. We therefore reverse that portion
of the proposed decision that concluded that the County was not obligated to make a one-time
adjustment to employee classific~tions and step increases in accordance with the Cmmty's
promotion and pay schedule.
2

PROCEDURAL HISTORY
On August 8, 2011, SEID filed an unfair practice charge alleging that the County had
bargained
in
bad faith and had repudiated the terms
of
Addenda B and C
of
the parties' 2009-
2011
MOU.
On
September 21, 2011, the County responded with a position statement in which
it
denied the material allegations and appeared to assert, as an affinnative defense, ·that PERB
lacks jurisdiction to consider SEIU's allegation that the County repudiated a contractual
provision, because,
in
this case, the complained
of
conduct is not also an unfair practice.
In response to the County's assertion that PERB lacked jurisdiction to hear a "pure"
contract claim, on·september 29, 2011, SEID filed a "presentation
of
claim" against the
County in which it
sought
an unspecified amount
of
damages on behalf
of
employees for the
County's alleged breach
of
contract. On October 28, ·2011, the County denied SEIU's
presentation
of
claim on the basis that the facts alleged therein were presently before PERB,
. which has exclusive jurisdiction over alleged unfair practices.
On November 28, 2011, SEID filed an amended charge and on Decem~er
13,
2011, the
County filed an amended position statement in which it conceded that PERB has exclusive
jurisdiction to consider all
of
the allegations included in SEID' s charge.
On January 30, 2012, SEID withdrew its
surfac(;}
bargaining allegation.
Also on January 30, 2012, PERB's Office
of
the General Counsel_issued a complaint,
which alleged thatthe County had imilaterally changed two policies relat:u1g to promotions in
flexibly-allocated classifications and merit step increases, without bargaining in good faith to
impasse or agreement. .
3

4
On February 2, 2012, SEIU filed a motion to amend the complaint to add an allegation
that the County's conduct constituted a repudiation of the parties' 2009-2011 MOU. The
County filed an opposition to this motion on February 8, 2012.
While SEIU's motion to amend was pending before the ALJ, on February 24, 2012, the
County filed an answer to the complaint, in which it denied the material allegations and
asserted various affirmative defenses.
On February 28, 2012, the parties attended an informal settlement conference but were
unable to resolve the dispute.
On March 7, 2012, the ALJ denied SEIU's motion to amend the complaint as
duplicative of the unilateral change theory already set fo1ih in the complaint.
· 	On May 16, 2012, a formal hearing was convened and; after post-hearing briefs were
received by the ALJ, the matter was fully submitted for decision on June 30, 3012.
On February 13, 2013, the ALJ issued a proposed decision, which dismissed the
complaint and underlying unfair practice charge.
On March 11, 2013, SEIU filed exceptions to the proposed decision and on April 2,
2013, the County filed its response to SEIU's exceptions.
FACTUAL BACKGROUND
The Board adopts the ALJ's factual findings and credibility determinations, as modified
below.
SEIU is the exclusive representative of County employees in five bargaining units:
Unit 1 - Clerical and Related_; Unit 3 -Technical & Vocational; Unit 4- Social Services;
Unit 6 - Health Services; and Unit 7 - Supervisors & Staff Management.
·4

SEIU and_the County were parties to an MOU whose term was August
1,
2009 through
July 31, 2011. The MOU covered employees in the five SEIU-represented bargaining units.
The MOU included the following two provisions:
ADDENDUMB
FLEXIBLY-ALLOCATED CLASSIFICATIONS
Effective August 2, 2009 suspend Personnel Rule 3.1.1 for all
classifications within a flexibly[-]allocated class series for the term
of
the contract. Exceptions to this suspension
of
the rule may be
made
by
the County Administrative Officer on a case
by
case basis.
Commencing the first full pay period following the expiration
of
the agreement each employee having qualified during the term
of
the agreement for promotion to a higher classification in a flexibly-
allocated classification will be placed at the step in that
classification which in the absence
of
this provision would have
taken effect during the agreement. Further the eligibility date
for the subsequent step or promotion in a :flexibly-allocated
classification,
if
any, will be set up in the payroll system
on
the
date, which in the absence
of
this provision would have taken
effect during the agreement. Nothing herein precludes the rights
of
the County not to grant such a promotion or step increase as set
forth in the Personnel Rules and regulations.
ADDENDUMC
MERIT INCREASES
Effective August 2, 2009, merit or step increases will be
suspended for the term
of
the contract. During the contract
period the County will track and identify the dates on which merit
increases would normally be received. Commencing the first full
pay period following the expiration
of
the agreement each
employee having qualified during the tenn
of
the agreement will ·
be placed at the step in the range which in the absence
of
this
provision would have taken effect during the agreement. Further
the eligibility date for the next step,
if
any, will be set up in the
payroll system on the date, which in the absence
of
this provision
would have taken effect during the agreement. Nothing herein
precludes the rights
of
the County not to grant a merit increase as
set forth in Rule 4 of the Personnel Rules and regulations.
(Emphasis added.)
5

A flexibly-allocated classification is one that typically contains several classification
levels within a class series, such as, Ch1ld Support Officer I/II/III. Level I is an entry level
classification assigned to probationary employees. If an employee passes probation, the
employee is automatically promoted to Level II and receives a 5 percent salary increase.
Merit step increases ate granted following annual performance evaluations if the
employee meets certain performance ratings. There are five salary steps within each
classification level. If an employee receives an appropriate performance rating, the employee
is moved to the next step and is granted a 5 percent salary increase.2
2008 Negotiations
In 2008, SEID and the County conducted negotiations between March and August.
During negotiations, the County proposed a one-time bonus payment equivalent to a 2 percent
salary increase. The parties did not reach agreement. Impasse was declared and the County
imposed its proposal. In September 2008, SEIU members participated in a strike.
In December 2008, after the State of California reduced anticipated funding, the County
closed two health care clinics and laid off several hundred employees. After layoff notices
were sent to employees on December 26, 2008, SEIU and the parties bargained over the effects
of the layoffs but reached no agreement. SEIU contends that the County's director of public
health, who attended some of the negotiations, mislead SEIU' s representatives about whether
hospital directors had been consulted about the impact of the layoffs.
2 The County's Personnel Rules were not included in the record. However, the parties do
not dispute that Personnel Rule 3 .1. 1 provides for promotions and pay increases in flexibly-
allocated classifications and for merit or "step" increases for employees in "flexible"
classifications. Nor do they dispute that SEID-represented clerical, technical, social worker,
health services and supervisory employees in bargaining units 1, 3, 4, 6 and 7 are employed in
"flexible" classifications that, in the absence of an agreement to the contrary, would have
received the promotions and merit step increases included in Personnel Rule 3 .1.1.
6

2009 Negotiations
In
June 2009, County Administrative Officer Jean Rousseau (Rousseau) made a
presentation to representatives
of
all employee organizations regarding the fiscal shape
of
the
County. SEIU entered negotiations with the understanding that the County would be seeking
concessions from all
of
the unions representing Cmmty employees.
The parties began negotiations on June 22, 2009
..
Elaine Carter (Carter) was the chief
negotiator for SEIU. Linda Shockley (Shockley) was the SEIU president at the timy. Greg
Gomez (Gomez) would later succeed Shockley as SEIU president. Both Shockley and Gomez
served on SEIU's bargaining team. Human Resources and Development.Director Tim Huntley
(Huntley) was the County's chief negotiator.
SEID and the County agreed to freeze promotions in flexibly-allocated classifications
(hereafter referred to as "flex promotions")
~d
merit step increases for the term
of
the MOU.
SEIU wanted assurances from the County that employees who had given up flex promotions
and/or merit steps would eventually be placed on the step they would have achieved and would
receive the merit increases they would have received. While other unions representing County
employees were only willing to agree to one year
of
concessions and return to the table in
following years, Gomez testified that SEID agreed to forego promotions and merit pay
increases for SEID-represented employees for the entire two-year period
of
the MOU then
being negotiated. According to Gomez, in return for SEIU's agreement to suspend the
promotions. and pay increases included in the County's Personnel Rules for two years, the
County's negotiator promised.to restore SEID-represented employees in flexible classifications
to the classification and pay levels they would have attained during the two years
of
the MOU,
if
the promotions and pay increases had not been suspended.
7

Gomez also testified, "[W]e wanted clear language that put the pressure on the County
to maintain tracking of how people _were going to be or should have been promoted during that
period of time. And that's why this language exists is because we wanted that burden to be on
the County." At. the bargaining table, Huntley indicated that the County could track the ·
information in its payroll system and he affirmed the proper steps would be restored. The
parties never discussed, however, what would happen at the end of the contract if the County's
finances had not improved. Gomez testified, "we were only negotiating for the period of the
term of the contract, not past that, so I mean, ... we didn't have a crystal ball." In sidebar
discussions away from the bargaining table, Carter, Shockley and Huntley worked out the
language that became Addenda B and C.
The parties reached a tentative agreement on July 22, 2009. SEIU's membership
ratified the MOU on July 30, and the County Board of Supervisors approved the MOU on
August 11. During the term of the MOU, SEIU-represented employees in flexibly allocated
positions did not receive promotions or merit pay increases in accordance with the agreement
that the County w;ould freeze the flex promotions and merit step increases provided for byits
Personnel Rules. ·
2011 Negotiations
On March 21, 2011, the County requested that SEIU begin the m·eet and confer process
for a successor MOU. During these negotiations, Kristy Sermersheim (Sennersheim) served as
SEIU's chief negotiator, and Shelline Bennett (Bennett) as the Cotmty's lead negotiator.
On April 25, 2011, Rousseau met with employee organization representatives and
informed them the County was facing another difficult year financially.
After several delays, SEIU and the County set the first bargaining session for June 6,
2011. On June 6, Sennersheim called and left a message for Bemiett cancelling the meeting.
8

Later that day, Bennett emailed the
Countfs
opening proposal to Sermersheim. The proposal
included a continuation
of
the freeze on flex promotions and merit step increases.
The parties met for their first bargaining session on June 13, 2011. At that time, the
County's projected deficit was approximately $3.8 million.3 Due
to
the deficit, Bennett
informed SEID
thc1;t
the County was proposing a status quo on concessions. Bennett explained
that the cost
of
"unfreezing'' only the merit increases would total $4.1 million: $2.8 million to
move employees to the step they would have obtained absent the freeze,
a!}d
$1.3 million for
merit increases due
in
fiscal year 2011-2012. SEIU maintained that flex promotions and merit
step increases had to be restored. SEID asserted that, effective August 1, 2011, the first day
after the MOU expired, employees were entitled to move to the classification levei and/or
merit step they would have achieved absent the negotiated freeze included
in
the 2009-2011
MOU.
·The parties met again on June 20, 2011, but no proposals were exchanged. At each
bargaining session, the parties discussed their respective.positions on flex promotions and
merit step increases. SEIU continued to assert that the frozen flex promotions and merit step
increases needed to be restored. The County explained that it could not afford any proposals
that increased County costs.
On June 30, 2011, SEID presented its opening proposal containing both economic and
non-economic items. In response to the County's proposal on flex promotions, SEIU's
proposaI·stated, "[n]eed more discussion." On merit step increases, SEID proposed that (1) the
3 By the next bargaining session, the projected deficit had increased to $4.6 million.
9

freeze
be
lifted effective July 31, 2011, the last day the 2009-2011 MOU was in effect,4 and
(2) a sixth salary step
be
c~eated that was 5 percent above step five. The County rejected the
sixth step proposal because it would cost more than $2
D:¥1lion.
During the July 8, 2011 bargaining session, SEID presented a revised proposal on non-
economic tenns.
On July 14, 2011, the County presented its last, best and final offer (LBFO) to SEID.
The LBFO included agreement on or counterproposals to SEID's non-economic items, but
retained the proposal to continue the freeze on flex promotions and merit step increases.
On July 19, 2011, SEID presented a counterproposal to the County's LBFO, proposing
that employees be moved to their proper salary step/classification under Addenda
Band
C, and
then freeze flex promotions and merit step increases for the period
of
the new MOU. The
parties continued to explore cost altei.natives. The County discussed insurance ftmding as an
alternative to SEIU'srestoration
of
wage increases. SEID rejected this suggestion. In an off-
the-record discussion, SEID posed hypotheticals which suggested flexibility on the promotion
freeze, but rei.nained firm that merit step increases be restored. After further discussions, the
County presented a revised LBFO that included some modifications to non-economic issues,
but rejected SEIU's proposal on
fl.ex
promotions and merit step increases. Bennett informed
4 Gomez gave conflicting testimony on the significance
of
the July 31, 2011 date in
SEID's proposal. He first testified that SEID was trying to "get something for our
membership." When questioned about restoration
of
the merit increases on July 31, 2011,
rather than August 1, however, Gomez said this was not a new proposal, but simply a
statement
of
the existing terms
of
the 2009-2011 MOU. Gomez testified that Sennersheim.
may have been confused about the effective date
of
the restoration
of
merit increases when
drnfting the provision. This testimony is not credible. During the first bargaining session,
SEID claimed the frozen wage increases were to be restored August 1, 2011, after the MOU
expired. Further, SEID presented this as a bargaining proposal, not merely a statement of
existing tenns, clearly reflecting a new effective date for restoration of flex promotions and
merit step increases.
10

SEID that the parties were at impasse. 5 SEID inquired whether the County would agree to
mediation. Bennett said no because mediation
haa
not been successful in the past.
On July 26, 2011, the County Board
of
Supervisors unanimously approved a resolution
to impose terms from the County's LBFO on the five SEID-represented bargaining units
effective August
1.
The imposed terms would"[
m]aintain [the] current suspension
of
Personnel Rule 3.1.l. for all classifications within a flexibly allocated class series." The
County estimated that,
if
the freeze on promotions and pay increases were lifted, the immediate
payroll_
cost
of
adjusting employee salaries to the appropriate pay step, as demanded by SEIU,
would be $2.8 million.
At the same meeting, the County Board also approved LBFOs. that continued a freeze.
on flex promotions and merit step increases for employees in other, non-SEID-represented
bargaining units.
· THE PROPOSED DECISION
The ALJ framed the issue as whether the County unlawfully implemented a continued
freeze on flex promotions and merit step increases, and concluded that, because the parties had
reached a bona fide impasse in negotiations, the County was legally privileged
tci
implement a
continued freeze on flex promotions and merit step increases following the expiration
of
the
MOU. In arriving at this conclusion, the ALJ relied on PERB's four-part test for a unilateral
change. The elements
of
that test are set forth in the proposed decision as follows: (1) the
employer breached or altered a written agreement or established past practice; (2) such action
5 Gomez testified about the County's declaration of impasse, "I believe [Sermersheim]
stated that we weren't at impasse as far as she thought, that there was still room to negotiate.''
This is w1corroborated hearsay testimony. In any case, allegations regarding surface
bargaining, premature declaration of impasse, and unlawful approval of the LBFO are not
included in the complaint and thus are not at issue in this case. (PERB Reg. 32300, subd. (c);
Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, pp. 31-32.)
11

was taken without providing notice
or
opportunity to bargain over the change; (3) the change
was not merely an isolated breach
of
the contract, but amounts to a change
in
policy (i.e.,
it
has
a generalized effect or continuing impact upon bargaining unit members' terms and conditions
of
employment); and (4) the change concerns a matter within the scope
of
representation.
The ALJ concluded that the matters covered by Addenda B and C, including
· promotions,
job
classifications and wages, are negotiable; and that the "continuing impact"
requirement was met, because, absent a freeze, employees would have received flex
promotions and wage increases as they advanced through the classification levels and merit
_steps.
	However, the ALJ concluded that the remaining elements
of
the test were not met. She
concluded that the SEIU~represented employees had no vested right to flex promotions and
merit step increases, because once negotiations over these matters had resulted in impasse, the .
County could impose its proposal to continue the freeze on flex promotions and merit step
_increases. The ALJ reasoned that, "[t]o apply a contrary rule
_would
nullify the meaning
of
MMBA section 3505;7, which allows an employer upon reaching impasse to implement
provisions that modify the tenns
of
an expired MOU."
The ALJ also rejected SEIU's contention that, pursuant to Fountain Valley Elementary
School District (1987) PERB Decision No. 625 (Fountain Valley), the County's refusal to
follow the provisions
of
Addenda B and C should be analyzed as a mid-tenn modification or
repudiation
of
an existing agre_ement for which the element
of
"notice and opporhmity to
bargain" is not dispositive. According to SEID, because the promise to restore employees to
the classification and pay step schedule was pali
of
the MOU, SEID was under no obligation to
re-negotiate that promise and the County was not free to change or depart from its terms, even
after giving notice and opportunity to bargain. (Id. at p. 6.)
12

In rejecting SETIJ's contention that the language
of
Addenda
Band
C established a
vested right that survived expiration
of
the MOU, the ALJ relied on evidence
of
the parties'
bargaining history and found each
of
the "vested right[s]" cases cited
by
SEID factually
distinguishable. The ALJ did not specifically address whether the language
of
Addenda B and
C itself established a future right that survived expiration
of
the MOU. Instead, she concluded
that, once the MOU expired and the parties' negotiations for a successor agreement had
reached impasse, the County was free to implement its proposal to continue suspending
promotions and
J)ay
increases otherwise provided for
by
its local rules.
SETIJ'S EXCEPTIONS
SEID excepts to several
oftheALJ's
findings and conclutdons, including her ultimate
conclusion that
SETIJ
failed to establish that the County had repudiated an established policy
providing for restoration
of
its preexisting schedule for flex promotions and merit step
increases following expiration
of
the 2009-2011 MOU. SEID contends that the ALJ
mistalcenly concluded that Addenda B and C established no future rights
of
employees which
.
survived expiration
of
the MOU. The crux
of
SEID' s argument is that, because the rights
established
by
Addenda B and C survived expiration
of
the MOU, the County could not
eviscerate those rights by unilaterally imposing a proposal to continue the freeze oh flex
promotions and merit step increases, even after the MOU itself had expired and the parties had
bargained to impasse. According to SEID, because Addenda B and C established "future
rights,'' the determinative question is not whether the parties were engaged in negotiations for a
successor agreement or whether they had reached impasse in those negotiations, nor whether
other provisions
of
the 2009-2011 MOU had expired, but whether the County repudiated or
altered a policy that survived parties' agreement.
.
13

Although SEIU argues that the language of Addenda B and C requires the County to
reinstate or "thaw" the frozen Personnel Rules requiring promotion and pay increases, it
concedes that the County is not precluded from imposing contrary terms on a prospective basis
in the event of a bona fide impasse in negotiations for a successor MOU. Nor does SEIU
assert that employees are entitled to any back pay for the period of the promotion and wage
freeze. Rather, it _argues that the language merely obligates the County to institute a one-time
adjustment to employees' classifications and pay ~ates, regardless of what the parties might
agree to include in the successor MOU, or what terms the County might impose in the event of
a.genuine impasse in negotiations for a successor MOU.
THE COUNTY'S RESPONSE TO SEIU'S .EXCEPTIONS
The County argues that it neither agreed. to an ongoing restoration of the flex
promotions and merit step increases upon expiration of the 2009-2011 MOU, nor to waive its
right to bargain to impasse and, pursuant to MMBA section 3505.7, to impose terms, including
a proposal to re-freeze employee promotions and pay increases. The. Cotmty concedes that
some authorities r~lied on by SEIU6 recognize that contractual rights may survive expiration of
a collective bargaining agreement, but avers.
that no such rights are at issue here, because	.
	those
cases de.alt with the procedural right to arbitrate grievances that arose during the term of the
contract, as opposed to establishing a substantive right to promotions and pay increases that, in
effect, supersede the employer's general right to impose terms affecting mandatory subjects of
bargaining upon exhausting efforts to reach an agreement and any applicable impasse
resolution procedures. The County argues that neirher the language of Addenda B and C nor
tlie parties' bargaining history establishes that the expired 2009-2011 MOU included an
6 Nolde Brothers, Inc. v. Bakery Workers (1977) 430 U.S. 243 (Nolde Bros.), Litton
Financial Printing Division v. NLRB (1991) 501 U.S. 190.
14

absolute guarantee that the wage and promotion freeze would end in August 2011, and that
"the reference in each addendum to the first pay period of August merely sets a time when the
promotions and increases were to be implemented if the parties agreed to lift the freeze at that
time." (Original emphasis.)
The County contends that International Brotherhood of Electrical Workers, Local 1245
v. City of Redding (2012) 210 Cal.App.4th 1114 (City of Redding) and other "future rights"
cases are not controlling, because they do not address what the County asserts is "the issue in
this case: whether an alleged vested right tnunps an employer's statutory right under the. 	.
MMBA to implement its LBFO upon impasse." According to the County, because the court in
City ofRedding did notinterpret the MMBA, "PERB is not required by Government Code
§ 3509, subdivision (b ), to follow the court's decision" nor to consider City of Redding as even
persuasive authority in this case. (County Response to Exceptions, p. 12.)
The County also argues that PERE-should avoid reliance on City of Redding and other
contract clause cases, because "any limitation on the County's ability to negotiate_ wages in a
successor MOU would_ run afoul of the California Constitution, and "[i]t would ... set up a
conflict ~etween two constih1tional principles: impairment of contract and a county's
[constitutional] authority to set employee compensation." (County Response to Exceptions, _
p. 14, emphasis added.) According to the County, PERB should "strive at all costs to avoid
creating a constitutional conflict it is not empowered to resolve, and which need not be
resolved in this case." (County.Response to Exceptions, p. 14.)
15

DISCUSSION7
Because the Central Issue
in
this Dispute Concerns the Meaning
of
Addenda B and C,
Traditional Rules
of
Contract Interpretation Apply.
SEIU contends that this dispute centers
on
the meaning
of
contractual terms and that
the ALJ erred
in
relying on the parties' bargaining history or
other
extrinsic evidence, instead
of
applying the "plain meaning" rule
of
contract interpretation.
We
agree.
Althoμgh PERB is without jurisdiction to enforce collective·bargaining agreements
(MMBA, §§ 3505.8, 3509, subd. (a), 3541.5, subd. (b)), as the agency responsible for
administering California's public-sector labor relations statutes, part
of
our mission is "to
make it possible for the parties to negotiate collective bargaining agreements in good faith and,
once they have done so, to protect
th(,:lir
right to rely on their agreements." (Fountain Valley,
✓
supra, PERB Decision No. 625, adopting proposed dee. at p. 8.)
We
may therefore interpret
contractual provisions, when necessary to decide an unfair practice case. ( City
of
Riverside
(2009) PERB Decision No. 2027-M, p. 10; Fresno Unified School Dist.
v.
National Education
Assn. (1981) 125 Cal.App.3d 259, 271-274; State
of
California (Departments
of
Veterans
Affairs & Personnel Administration) (2008) PERB Decision No. 1997-S, pp. 14-16.)8
7 Pursuant to PERB Regula~ion 32315, SEID has requested oral argument. Historically,
the Board has denied such requests, when an adequate record has been prepared, the parties
had ample opportunity to present briefs and have availed themselves
of
that opportunity, and
the issues before the Board are sufficiently clear to make oral argument unnecessary.
(Antelope Valley Health Care District (2006) PERB Decision No. 1816-M; Arvin Union
School District (1983) PERB Decision No. 300.) Because all
of
the above criteria are met in
this case, we deny SEIU's request for oral argument.
8 Fresno USD v. NEA and State
of
California arose under the Ed1icaiional Employment
Relations Act(§ 3540 et seq.), and the Ralph C. Dills Act (§ 3512 et seq.). However, where
California's public~sector labor relations statutes are similar or contain analogous provisions,
agency and court interpretations under one statute are instrnctive 1mder others. (Redwoods
Community College Dist.
v.
Public Employment Relations Bd. (1984) 159 Cal.App.3d 617,
623-624.)
16

When doing so, we follow accepted rules
of
contract interpretation aimed at effectuating
the mutual intent
of
parties,.as it existed at time
of
contracting, insofar as
it
was ascertainable
and lawful. (Civ. Code,§§ 1638-1645; Los Angeles Superior Court (2010) PERB Decision
No. 2112-I, adopting partial dismissal letter at p. 2; City
of
El
Cajon
v.
El Cajon Police Officers'
Assn. (1996) 49 Cal.App.4th 64.) If the language
of
a written agreement, as understood in its
ordinary and popular sense, is clear and explicit, then it alone governs the interpretation and
there is no need to resort to bargaining history or other extrinsic evidence to divine the parties'
intent. (Civ. Code,§§ 1638, 1639, 1644; City
of
Riverside, supra, PERB Decision No. 2027-M,
p. 11; Alday
v.
Raytheon
c;o.
(9th Cir. Ariz.
20U)
693 F.3d 772, 782 (Alday
v.
Raytheon).)9
To determipe the parties'- intent, the whole
of
the contract taken to.gethet must be
considered,
so.
as to give effect to every part,
if
rea~onably practicable, with each clause assisting
.in
the interprptation
of
others. (Civ. Code, § 1641.) 10
Thus, an interpretation which renders a
part
of
the instrument to be .surplusage should be avoided. (National City Police Officer~' Assn.
v.
City
of
National City (2091) 87 Cal.App.4th 1274, 1279; City
of
Riverside, supra, PERB
Decision No. 2027-M, pp. 12.-13.) The Board's interpretation should harmonize any potential
conflict between provisions
of
the agreement and give a "reasonable, lawful and effective
9 Civil Code section 163 8 provides that, "The language
of
a contract is to govern its
interpretation,
if
the language is clear and explicit, and does not involve an absurdity."
Civil Code section 1639 provides that, "When a contract is reduced to writing, the
intention
of
the parties is to be ascertained from the writing alone,
if
possible; subject, however,
to
the other provisions
of
this Title."
Civil Code section 1644 provides that, "The words
of
a contract are to be understood in
their ordinary and popular sense, rather than according to their strict legal meaning; unless used
by the parties in a technical sense, or unless a special meaning is given to them by usage, in
which case the latter must be followed."
1°Civil Code section 1641 provides that, "The whole of a contract is to be taken
together, so as to give effect to ev.ery part,
if reasonably practicable, each clause helping to
interpret the other."
17

meaning to all the terms," as provided in Civil Code section
1641. (Los
Angeles
Superior
Court,
supra,
PERB Decision No. 2112-I.) Where a contract is susceptible
of
two interpretations, one
. of which is reasonable and fair, and the other is unreasonable or unfair, the latter interpretation
must be rejected and the first accepted. (Civ. Code, § 1643; Division
of
Labor
Law
Enforcement
.
Dept.
of
Indus.
Relations
v.
Safeway
Stores,
Inc.
(1950) 96 Cal.App.2d 481, 490.)
11
Additionally, all contracts, whether public or private, are interpreted according to the same rules,
unless otherwise directed by the statute. (Civ. Code,§
1635.)1
2 Thus, there are
no
"special rules
oflaw" applied
to an
agreement, simply because one party thereto is a government entity.
(Sheppard
v.
North Orange County Regional Occupational Program (2010)
191
Cal.App.4th
289,313 (Sheppardv. NOCROP);.Kemper
Const.
Co.
v.
City
of
Los Angeles (1951)
37
Cal.2d
696, 704 (Kemper
Const.
Co.).)
.
• 	I
The procedural history outlined above demonstrates that the present dispute turns on
the meaning
of
Addenda Band C of the parties' expired
2·009w2011
MOU. The complaint
alleged that, on or about August
l,
2011, the County unilaterally changed its.policy regarding
flex promotions and merit step increases for SEID-represented employees by refusing to
implement the provisions of Addenda Band C
of
the expired 2009-2011 MOU.
In
anticipation
of the hearing, SEIU moved to amend the complaint to specifically allege that the County had
repudiated the provisions of Addenda Band
C.
The ALJ denied SEIU's motion, reasoning that
·a contract repudiation theory was already encompassed in the complaint's unilateral change
allegation. Not surprisingly then, in its closing brief before the ALJ, SEIU argued that the
11
Civil Code section 1643 provides that, ''A contract must receive such an interpretation
as will make it lawful, operative 1 definite, reasonable, and capable of being carried into effect, if
it can be done without violating the intention of the parties."
·
12 Civil Code section 1635 provides that, "All contracts, whether public
or
private, are to
be interpreted by the same rules, except as otherwise provided by this Code.''
18

substantive rights
of
employees to flex promotions and merit step increases arose not from the
MMBA but from the language
of
Addenda B and C, which the County refused to implement
and thus repudiated.
However, while the proposed decision acknowledged SEIU's contract repudiation
theory, it did not examine the language
of
Addenda B and C to explain what
the
parties
intended when they agreed that, "[c]ommencing the first full pay period following the
expiration
of
the agreement," SEIU-represented employees "will
be
placecf' at the step in their
classification, and "will
be
place cf' in the pay range, "which in the absence
of
this provision
would have taken effect during the agreement." (Emphasis added.) Instead, the ALJ rejected
S~IU's argument that Addenda
Band
C established employee rights that survived expiration
of
the agreement, based on evidence
of
the parties' bargaining history,
13
and on policy
grounds.
14
While these may be legitimate considerations, they are not determinative. In every
contract dispute, the analysis must begin with the parties' intent, as demonstrated by the
ordinary and plain meaning
of
the language
of
their agreement. (Civ. Code,§§ 1638, 1639,
13
The ALJ noted that, as the MOU's expiration drew near, SEID proposed
.to
change
the effective date
of
Addenda
Band
C from August 1 to July 31, 2011, so that restoration
of
the County's promotion and pay increase schedule would occur before the MOU expired. The
ALJ reasoned that SEIU's proposal to change the effective date was inconsistent with its
assertion that Addenda
Band
C already guaranteed restoration
of
the.promotions and pay
increases. From this apparent inconsistency in SEIU's bargaining positions, the ALJ then
concluded, that the SEID-represented employees did not have a vested right to flex promotions
and merit step increases that survived expiration
of
the 2009-2011 MOU. As discussed below,
even though we accept the ALJ's credibility determination regarding Gomez's testimony on
this point, we do not consider it dispositive
of
the ultimate issue in this case, which is what the
parties intended during 2009 negotiations when they agreed to the language
of
Addenda B and
C, not SEIU's bargaining strategy in the successor negotiations occurring two years later,
14
The ALJ expressed concern that finding employees had a vested, post~expiration
right to flex promotions and merit pay increases would preclude the County from
implementing terms for current employees, even after bargaining to impasse, and would
therefore nullify the meaning of MMBA section 3505.7. We address this concern below.
19

1644;
City
of
Riverside, supra,
PERB
Decision No.
2027~M,
p.
11;
City
of
Redding,
supra,
210
Cal.App.4th 1114, 1120;
Alday
v.
Raytheon, supra,
693
F.3d
772,
782.) Because the
ALJ
made
no
finding that that the operative language of Addenda B and
C, as
understood in its
ordinary and plain sense, is ambiguous,
we
agree with
SEIU
that there was
no
basis
for
resorting
to
extrinsic evidence of the parties' bargaining history. (Civ. Code,§
1638;
City
of
Redding,
supra,
210
Cal.App.4th
1114, 1120;
Regents
of
the
University
of
California
(Davis)
(2010) PERB Decision No. 2101-H,
p.
21.)
We
next consider SEID's contention that the language of Addenda Band C demonstrates
an
intent
to
restore the flex promotions
and
merit step increases that were suspended, but not
eliminated,
by the 2009-2011 MOU, and that such rights
siu-vived
expiration of
the MOU.
Whether Addenda B and C Established Enforceable, Post-Expiration Rights
SEID argues that the plain meaning of Addenda B
and
C establish contractual rights to
restoration of employee promotions and pay increases, which survived expiration of the 2009-
2011
MOU.
Alternatively, it argues, that even if the pertinent contract language were
ambiguo-qs,
the parties' bargaining history demonstrates that they intended to restore the
promotion and pay increase schedule provided for by the Cmmty' s Personnel Rules upon
expiration of the 2009-2011 MOU. We agree with SEID on both points.
Addenda Band C provide that, "[c]ommencing the first full pay period following the
expiration of the agreement," SEID-represented employees "will
be
placed'' at the step in their
classification, and "will
be
placed'' in the pay range "which in the absence of this provision
would have taken effect during the agreement." (Emphasis added). When referring to future
events, the ordinary and plain meaning of the verb "will" is the same as "shall/' which is to
impose a duty or requirement. (Black's Law Dictionary (9th ed. 2009) "SHALL.") This usage
is the mandatory sense that drafters typically intend and that courts typically uphold as an
20

enforceable obligation. 	(Black's
Law
Dictionary; Cole
v.
A~telope Valley Union High School
Dist. (1996) 47 Cal.App.4th 1505, 1513.)
SEIU' s interpretation is consistent with California cases. In City
of
Redding, supra,
210
Cal.App.4th 1114, a public agency ratified a series
of
collective bargaining agreements each
of
which stated that the public agency "will pay" 50 percent
of
the group medical insurance
program premium
for
each retiree
and
dependents,
if
any,
presently enrolled "and for each retiree
.in the future" who goes directly from active status to retirement and continues the group medical
insurance without a break in coverage. The court interpreted this language
as
establishing
enforceable, contractual rights against the city.
Similarly, in Ivens
v.
Simon (1963) 212 Cal.App.2d 177, a public agency maintained a
five--step
classification and pay plan according
to
which employees "shall be paid" at the
succeeding step
of
the pay range, upon satisfying certain criteria. Although an employee's
department head certified that she
had
satisfied all criteria, the city council refused
to
approve
her pay·increase. The employee petitioned for writ of mandate
to
compel the
employe:r to
place
her at the ·next step in the established pay range. The trial court dismissed the petition but the
appellate court reversed, reasoning that, once adopted by the city council, the classification and
pay plan
f01med
part of the employment contract which the city was not free
to
repudiate
as
to
services already perfonned. (Id. at pp. l
79~
180.) 	fo analogous circumstances,. other California
courts have reached the same result. (California League
of
City Employee Associations
v.
Palos Verdes Library Dist. (1978)
87
Cal.App.3d 135, 150 (California League); Youngman
v.
Nevada Irrigation Dist. (1969) 70 Cal.2d 240,247 (Youngman); and Sonoma County
Organization
of
Public Employees
v.
County
of
Sonoma (1979)
23
Cal.3d 296, 314.)
Other jurisdictions have followed similar reasoning. In Naches Valley School District
No. JT3 v. Cruzen (Wash. Ct. App. 1989) 54 Wn. App. 388, a collective bargaining agreement
21

entitled teachers
to
compensation
for
accumulated but unused sick leave "at retirement."
The
language of the agreement did not include
any
limitation on when the
"retirement" must occur.
The school district contended that, because sick leave
is
a contractual rather than statutory right,
it was not required to pay sick leave compensation to teachers
who
retired after expiration of the
agreement. The Washington Court of Appeal rejected this argument, because the
langua.ge
of the
agreement did not in
any way qualify or limit the term "retirement" to
any
particular time period.
(See also
Champine
v.
Milwaukee County (Wis.
Ct. App.
2005)
2005 WI App. 75,
p.17.)
Neither the proposed decision, nor the County
has
suggested any reasonable alternative
interpretation of the phrase "will be placed." The proposed decision ignores this language
altogether, while the County argues that, "the reference
in
each addendum to the first pay period
of August merely sets a time when the promotions and increases were to be implemented
if
the
parties agreed
to
lift
the
freeze at that time." (Original emphasis.) According to the County,
Addenda B.and C created no more than
an
obligation for the County to track the promotions
and
pay increases which would have occurred, had the Personnel Rules schedule not been suspended,
so
that these could be properly credited to employees, "if and when the freeze
was
lifted."
The County concedes that Addenda B and C required it
to keep
tTack
of accrued flex
promotions and merit step increases,
so
that these could be credited to employees when the
freeze was lifted. However, it argues that the terms of the MOU were too indefinite and 	·
uncertain to establish a firm promis~ to restore the flex promotions and merit step increases set
forth in the Personnel Rules. Moreover, because the freeze
ori
flex promotions and merit step
increases was negotiated during a severe budget shortfall,
1he
County argues that SEIU
necessarily assumed the risk that the County's financial situation would not improve, and that the
freeze 'would therefore be extended. Additionally, it argues that, even if Addenda Band C 	·
established a definite and certain promise, the County was privileged to ignore any promise it
22

previously made
to
restore flex promotions and merit step increases,
so
long
as
it bargained in
good faith to impasse on all negotiable subjects before imposing terms consistent with its
proposal to continue or re-implement the freeze on flex promotions and merit step increases.
We reject the County's interpretation because it ignores or
,unduly
strains the ordinary
and plain meaning
of
the words "will be placed," and because
we
can find no support
for
it in
any other language
of
Addenda Band
C.
(Victor Valley Community College District (1986)
PERB Decision No. 570 (Victor
Valley),
p.
24; Inglew(!od Unified School District (1984) PERB
Decision
No, 401
(Inglewood), adopting proposed dee. at
p.
37.) A fundamental
flaw
in the
County's interpretation is that it ignores the "will
be
placed'' language in Addenda Band C
entirely, or treats it
as
conditional, when
no
other language in the MOU suggests that the promise
to restore flex promotions and merit step increases was conditioned on any future event. Had the
parties intended to condition restoration
of
the flex promotions and merit step increases
on an
improvement in the County's finances, they would have
includ_ed
language to that effect in their
. agreement, or at least.discussed some metric for detem1ining when the County's financial
situation had improved sufficiently to justify restoring flex promotions and merit step
increases. 	However, the record demonstrates that they did neither.
The County apparently contends that it retained sole discretion to decide when its
financial situation had improved sufficiently to return to the flex promotions and merit step
increases called for by its Personnel Rules. However, this interpretation turns the "wilt' be
placed" language into an illusory promise. If there were no limits on the County's discretion to
continue freezing flex promotions and merit step increases indefinitely, then there was no reason
to include language in Addenda B and C stating that employees "will be placed" in the
appropriate classi:6.cation and the appropriate step of the pay scale upon expiration of the MOU.
We reject this interpretation because, "[a]s in all contracts, [a] collective bargaining agreement's
23

tenns must
be
construed so
as
to render none nugatory and avoid illusory promises."
(Alday
v.
Raytheon, supra, 693 F.3d 772, 784; Civ. Code,
§§
1635, 1641.) In the absence
of
any evidence
of
a contrary meaning, we find the language
of
Addenda B and C sufficiently clear to establish
an enforceable promise that, on the date specified, the County would restore the flex promotions
and merit step increases provided for by its Personnel Rules and place SEID-represented
employees at the steps
in
the classification and pay ranges that employees would have attained
had the parties not agreed to suspend flex promotions and merit step increases during the 2009-
2011 MOU.
Evidence
of
the Partie~' Bargaining History Also Supports SEIU's Interpretation.
To the extent it is necessary
to
examine the parties' bargaining history, milike the ALJ,
we think this evidence likewise supports SEID's interpretation. Although not discussed
in
the
proposed decision, Gomez testified that the County promised to restore the flex promotions and
merit step increases for SEID-represented employees in return for SEIU's willingness to forego
such promotions and increases for the entire term
of
the 2009-2011 MOU. Specifically, Gomez
testified that, while bargaining with SEIU'for the 2009-2011 MOU, the County was
simultaneously demanding concessions from four other unions representing County
employees. Perhaps believing that the County's finances would improve sooner rather than
later, other ,mions representing County employees were only willing to agree to one year
of
concessions at a time.
However, because SEID alone among all the County unions was willing to forego :flex
promotions and merit step increases for a full two-year period as part
of
its agreement, it was
"the only union to have gotten a two-year agreement at that table," an.d, its MOU was "the only
one[] that had that language specifically in there." According to Gomez, "we made very clear
24

to
the County that
we
wanted our members to be made whole at the end of those
two
years"
15
and, "as a reward for giving
up
those two years and for settling with the two-year agreement,"
Huntley proposed the language that became Addenda B and
C,
including a definite date for
flex promotions
and
merit step increases to be restored.
Gomez's testimony
was
somewhat tentative.
He
testified that
he
"looked at" the
2009
agreements between the County and other unions and that, "from the ones that I remember,"
SEID's was "the only one[] that had that language specifically in there." However, the County
produced
no
witness with personal knowledge of the
2009
negotiations
to
contradict
Gomez on
this point. Nor
did
it produce the
MOUs
it reached with other County unions during the 2009
negotiations, or
any
other documentary evidence, to coptradict Gomez's recollection that
SEIU's MOU
was
"the only one[] that had that language specifically in there." Where one
witness is the only source of evidence
on
a particular issue in dispute, any fmding on that issue
must be based
on
the testimony of that witness. (Baker Valley Unified School District (2008)
PERB Decision No. 1993, p.
11; Victor
Valley, supra, PERB
Decision No. 570,
p.
24.) Contrary
to the proposed decision, we find the evidence of the parties' bargaining history, including
Gomez's undisputed testimony that SEID was
willing to forego flex promotions and merit step
increases for the entire term of the MOU, supports SEIU's contention that, in return, it
obtained a
fim1
promise from the County to restore flex promotions and merit step increases
once the MOU expired.
15
Gomez explained that the term ''make whole"'meant that employees "would wind up
on the step that they should have been'' on, but that SEIU did not expect "that we would get
retroactive payment for those two years." Gomez also testified that SEID had assured its
membership that "we would get our
...
step increases for those two years." Gomez's
testimony on this point coincides with that of the County's chief negotiator.
25

The ALJ discredited conflicting testimony from Gomez concerning SEIU's June 30,
2011 proposal to change the effective date
of
Addenda B and C from "the first full pay period
following the expiration
of
the agreement [emphasis added]" to July 31, 2011, i.e., the last day
the.MOU was in effect. Gomez acknowledged that
hl;;l
did not lmow the precise reason why
SEID had proposed moving the restoration date forward to occur before the MOU expired, as
~pposed to after expiration. He testified that SEID' s chief negotiator may have proposed the
July
31
language because she was confused about the effective date
of
the restoration
of
flex
promotions and merit step increases when drafting SEID' s proposal. The ALJ rejected this
explanation and found that SEID presented this language "as a bargaining proposal, not merely
a statement
of
existing terms, clearly reflecting a new effective date for restoration
of
flex
promotions
and-
merit increases." She reasoned that,
if
SEID had believed it was already
entitled to restoration
or
flex promotions and merit step increases following expiration
of
the
2009-2011 MOU, it would not have proposed changing the restoration date to July 31. We
need not and do not disturb the ALJ's credibility determination concerning this testimony,
since it is not dispositive or even necessarily probative
of
the central issue in dispute. Aside
from the language
of
Addenda
Band
C itself, the best evidence
of
the paities' intent is not
what their negotiators believed or proposed in 2011 during negotiations/or a successor MOU,
b_ut
what they 1mderstood and bargained for in 2009, when they agreed on the language
of
Addenda B and C:
Gomez also admitted that the parties discussed very little,
if
anything, about "what
would happen" at the end
of
the 2009-2011 MOU. Although the ALJ cited this testimony as
undern1ining SEID's position, in fact, it also 1mdermines the Cotmty's assertion that its
promise to restore employee promotions and pay increases was somehow contingent on an
unspecified improvement in the County's financial situation, apparently to be detennined at the
26

County's sole discretion. However, regardless of what they did or did not discuss in
negotiations, the parties ultimately agreed on language expressly stating that SEID-represented
employees "will be placed" in the appropriate steps in the County's promotion and pay
schedule upon expiration of the 2009-2011 MOU, i.e., at the step in the classification and pay
range which, in the absence of the parties' agreement to suspend such flex promotions and
merit step increa_ses, "would have taken effect during the agreement."
Other evidence of the parties' bargaining history and past practice supports SEIU's
interpretation. Gomez testified that, because of a history of contentious negotiations, SEIU's
negotiators were concemed that the County "would wind up screwing us somehow," so SEiU
"wanted clear language that put the pressure on the Cm.mty to maintain tracking of how people
were going to be or should have been promoted" during the period of the freeze on flex
promotions and merit step increases. According to Gomez, Addenda Band C's language
requiring the County to track employees' progress toward flex promotions and merit step
increases, even when the County's schedule was suspended, reflected its desire and expectation
that employees "will be placed,, at the appropriate classification and pay range step, when the
MOU and the freeze expired.
The County argues that this language demonstrates no more than an agreement that :flex
promotions and merit step increases were to be tracked during the freeze so that they could be
credited properly to employees "if and when the freeze was lifted.,, 	(Empha~is added.) 	While
we agree with the County that Gomez's testimony about the "tracking" language, if considered
alone, would provide insufficient support for SEIU's interpretation, we ~o not agree that the
tracking obligation is entirely separate from the Co1mty's promise that employees "will be
placed" in appropriate steps in the Co1mty' s classification and pay scale. The fact that SEID
bargained for tracking language lends at least some support to its interpretation in that it i~
27

consistent with SEIU's asserted expectation that the County would return employees to the
previous flex promotion and merit step increase schedule upon expiration
of
the 2009-2011
MOU.
Arguably, the tracking language also demonstrates some concern with ensuring that the
County fulfilled its obligation to make employees "whole" in a verifiable manner, since the
belief among SEID's representatives was that the County "would wind up screwing
us
somehow." However, while the presence
of
the tracking language lends at least some support to
SEIU's interpretation
of
Addenda B and C, as indicated above,
by
statute and under well-settled
decisional law, the more persuasive and, in fact, the dispositive evidence
in
support
of
SEID's
interpretation is the ordinary and plain meaning
of
the "will be placed" langtiage
of
Addenda B
and C
itselt
(Civ. Code,§§ 1638, 1639, 1644; City
of
Riverside, supra, PERB Decision
No. 2027-M, p. 11; Alday
v.
Raytheon, supra, 693 F.3d 772, 782.)
Although we have detennined above that Addenda B and C established future rights
of
employees that survived expiration
of
the agreement, this case also presents a separate but
closely-related issue
of
the relationship between contractual rights and the statutory right
of
a
public employer to impose terms and conditions
of
employment at impasse. In the County's
formulation, the question is "whether an alleged vested right trumps an·einployer's statutory
right under the MMBA to implement its LBFO upon impasse."
We.
now tum to that issue.
Whether Collectively-Bargained Future Rights Are Exeinpt from the Impasse Rule
The proposed decision accurately recites the general rule that, because terms and
conditions
of
employment are subject to re-negotiation upon expiration
of
a collective
bargaining agreement, the employer's duty to refrain from unilateral action exists only until
such time as bargaining over a successor agreement has resulted in agreement or impasse.
However, the proposed decision goes further. It suggests that recognizing future rights that
28

survive expiration of an MOU would, as a matter oflaw, "nullify the meaning of MMBA
section 3505.7."
The County similarly argues that, "[c]onsistent with black letter federal labor law, the
[MMBAJ gives an employer the right to implement terms of its LBFO once the parties have
reached impasse, provided there is no MOU in effect." According to the County, because it
"neither intended to create a contractual right that would survive expiration nor waived its
right to implement upon impasse its final proposals on flex promotions and merit step
increases, [,0 ... [,O no contractual right to restoration of flex promotions or merit step
increases survived expiration of the MOU", and any limitation on the County's ability to
bargain in good faith to impasse and implement its proposal to re-freeze flex promotions and
merit step inc~eases would "eviscerate section 3505.7 of the MMBA" and "directly interfere[]
with the Cm.mty's constitutional authority to set employee compensation." (County Response
to Exceptions.) We disagree with both the ALJ's and the County's interpretation of the
MMBA and with the County's reliance on federal precedent.16
The purpose of the MMBA is to promote the resolution oflabor disputes through
collective bargaining. (MMBA, § 3500.) As the Supreme Court observed, a statute that
encouraged the negotiation of agreements, yet permitted the parties to retract their concessions
and repudiate their promises whenever they choose, would impede rather than promote good-
faith bargaining. (Glendale City Employees Assn. v. City of Glendale (1975) 15 Cal.3d 328,
336 (City of Glendale).) The MMBA does not pennit parties to accept the benefits of a
collective bargaining agreement and then reject less favorable provisions that were intrinsic to
16 We address here the County's statutory argument regarding the waiver of employer
rights to impose tem1s at impasse under MMBA section 3505.7 while, within the limits of our
jurisdiction and only to the extent necessary, we address the separate constitutional argument
below.
29

the bargain. (San Bernardino Public Employees Assn.
v.
City
of
Fontana (1998) 67
Cal.App.4th 1215, 1224-25 (City
of
Fontana).)
Once they have been ratified, the terms and conditions contained
in
an
MOU
are fixed for
the duration
of
the agreement. (City
of
Glendale, supra,
15
Cal.3d 328, 335-337.) During its
tenn, neither party to a collective bargaining agreement has a duty to bargain over any matter
covered
by
the agreement. (Mt. Diablo Unified School District (1983) PERB Decision
No. 373, pp. 45-47.)
If
they have included strong "waiver" or "zipper" language
in
their
agreement, then no duty to bargain arises, even as to mandatory subjects not covered
by
the
agreement. (Los Rios Community College District (1988) PERB Decision No. 684, p. 14.) In
such circumstances, either party may decline a request for bargaining over any matter covered or
"zipped up" by the agreement. (Los Angeles Community College District (1982) PERB Decision
No. 252 (LACCD), pp. 10-11; Inglewood, supra, PERB Decision No. 401, adopting proposed
dee. at pp. 35~37.)
If
the representative agrees to discuss a subject covered or zipped up
by
the agreement,
the employer
may
not bargain to impasse and unilaterally impose terms that vary from those
contained in the agreement, unless the representative has clearly and unequivocally waived the
protections
of
the zipper clause. (LACCD, supra, PERB Decision No. 252, pp. 10-11; Contra
Costa Community College District (1990) PERB Decision No. 804, pp. 8-10.) Likewise, the
failure to reach agreement on any open subjects
of
bargaining does not repudiate any tenns and
conditions already agreed upon by the parties. (Trustees
of
the California State University
(2001) PERB Decision No. 1470-H (Trustees
of
CSU), adopting dismissal letter at p. 5; see
also St. Barnabas Med. Ctr. (2004) 341 NLRB 1325; Mack Trucks, Inc. (1989) 294 NLRB 864,
865; Herman Bros., Inc. (1984) 273 NLRB 124, fn. 1, enforced by (3d Cir. 1985)
780 F.2d 1015.)
30

I
· The above authorities demonstrate that the impasse_ rule is subject to any outstanding
contractual obligations the employer may have incurred. We find nothing in the language or
purpose ofMMBA section 3505.7 to suggest that the right to impose terms at impasse in
successor negotiations authorizes the employer to disregard any outstanding contractual
obligations under its previous agreement, simply because those obligations do not mature until
after the agreement has expired.
The County's invocation of "black letter federal labor law" is also misplaced. It is true
that under federal law, private-sector employers may impose terms consistent with their LBFOs
upon reaching a bona fide impasse in negotiations. (Empire Terminal Warehouse Co. (1965)
151 NLRB 1359, 1360-1362, affd. sub. nom. Dallas General Drivers, Warehousemen and
Helpers, Local Union No. 745, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen and
Helpers ofAmerica v. NLRB (D.C. Cir. 1966) 355 F.2d 842; American Federation of Television
andRadio Artists, AFL-CJO, Kansas City Local v. NLRB (D.C. Cir. 1968) 395 F.2d 622, 624.)
However, the County cites no authority - California or federal - for the proposition that an
employer's right to impose tenns unilaterally at impasse in successor negotiations trumps any
executory contractual obligations arising from a prior agreement. To the contrary, the National
Labor Relations Board (NLRB) and the federal courts regard an employer proposal to
extinguish its liability for accrued wages and benefits under a previous agreement to be a
nonmandatory subject of bargaining. (Swift Adhesives, Div. of Reichhold Chemicals, Inc.
(1995) 320 NLRB 215,216 (Swift Adhesives), ·enforced by (8th Cir. 1997) 110 F.3d 632;
Harvstone Mfg. Corp. (1984) 272 NLRB 939, 942-943, enforcement den. on other grounds
th
(7 	Cir. 1986) 785 F.2d 570.) The NLRB has reasoned that ~he statutory duty to bargain over
wages, hours, and tenns and conditions of employment pertains to current and future wages,
hours and terms and conditions, not to re-negotiate te1111s and conditions that have already been
31

fixed by an earlier agreement. (R. E. Dietz Co .. (1993) 311 NLRB 1259, 1266; accord Trustees of
CSU, supra, PERB Decision No. 1470-H, adopting dismissal letter at p. 5.) We find persuasive·
the private-sector cases holding that an employer is not privileged to insist to impasse on a
proposal to renegotiate terms settled by a previous agreement, nor to impose terms that take back
wages or benefits that have already accrued to employees.17
Nor are we persuaded by the County's argument that an employer's statutory right to
impose terms at impasse is non-waivable and therefore precludes finding that employee rights
may survive or mature after expiration of a collective bargaining agreement.- Again, federal
precedent is instructive. Under federal labor law, it is well-settled that where parties have
expressly or impliedly agreed to limit their use of economic weapons their agreement to do so is
controlling. (Hydrologies, Inc. (1989) 293 NLRB 1060, 1062; Speedtrack, Inc. (1989) 293
NLRB 1054, 1055; Local 174, Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica
v. Lucas Flour Co. (1962) 369 U.S. 95, 104-105 (Teamsters v. Lucas Flour Co.); Gateway
Coal Co. v. United Mine Workers ofAmerica (1974) 414 U.S. 368, 381-82,)1 8 Although the
cases typically involve an asserted waiyer of the right to strike, we see no reason to establish a
17 Although we presume that a duly recognized representative has the power to waive or
limit employees' statutory rights through collective bargaining to the same extent as the
employees themselves may lawfully do so (Porter v. Quillin (1981) 123 Cal.App.3d 869, 874-
875; JI. Case Co. v. NLRB (1994) 321 U.S. 332, 337-338; cf Berkeley Unified School District
(2012) PERB Decision No. 2268 (Berkeley), pp. 2-3, fa. 3), because this case involves an
employer's imposition ofretroactive tenns, as opposed to a collectively-bargained agreement,
we need not and do not address the separate issue of whether or under what circumstances the
representative may agree to economic concessions with retroactive effect.
18 Private--sector precedent established under the National Labor Relations Act
(29 U.S;C., §§ 151, et seq.), or the California's Agricultural Labor Relations Act (Lab. Code,
§§ 1140-1166.3), is persuasive for interpreting parallel or comparable provisions in the PERB-
administered statutes. (McPherson v. Public Employment Relations Bd. (1987)
189 Cal.App.3d 293, 311; Moren'a Valley Unified School Dist. v. Public Employment Relations
Bd. (1983) 142 Cal.App.3d 191, 196.)
32

different rule, simply because the economic weapon being surrendered belongs to the employer.
Under PERB precedent, just as the representative may agree to contractual language that waives
or limits the right to strike or engage in other concerted activities (Regents of the University of
California (2004) PERB Decision No. 1638-H, pp. 3-5), so, too, may an employer agree to
contractual terms that waive or limit its right to use economic force, including its right to act
unilaterally at impasse. (Covina-Valley Unified School District (1993) PERB Decision
No. 968, adopting dismissal letter at p. 2.)
While a no strikes clause generally applies only during the term of the agreement
(Hydrologies, supra, 293 NLRB 1060, 1062), where the parties clearly intend otherwise, they
may expressly or impliedly agree to continue or re-new a no strikes clause during a contractual
hiatus. (Ibid.) 	For example, an agreement to arbitrate disputes may survive expiration of the
agreement (Nolde Bros., supra, 430 U.S. 243) and, by implication, waive employees' right to
strike over arbitrable'disputes. (Teamsters v. Lucas Flour Co., supra, 369 U.S. 95, 104-105;
Gateway Coal Co. v. United Mine Workers, supra, 414 U.S. 368, 381-382.) Contrary.to the
County's assertion, there is no categorical rule against finding that a waiver of the employer's
right to act 1milaterally at impasse may survive expiration of the agreement which gave rise to
.the waiver. In each case, the parties' intent, as reflected in their agreement, is controlling,
though the Board may also examine bargaining history or other extrinsic evidence, if
necessary, to discern their intent. (Civ. Code, §§ 1638, 1639.)
With respect to the County's waiver argument, we can discern no meaningful difference
between the "clear and unmistakable" standard used for waiver analysis and the "clear
agreement" or "clear intent" language used by the California Supreme Court and the Court of
Appeals in "vested rights" cases. If the "statutory language and [the] circumstances
accompanying its passage clearly ' ... evince a legislative intent to create private rights of a
33

contractual nature enforceable against the State'" (City of Fontana, supra, 67 Cal.App.4th 1215,
1223 citing Valdes v. Cory (1983) 139 Cal.App.3d 773, 786; Retired Employees Assn. of Orange
County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1184 (Retired Employees Assn.)),
then, by definition, the public agency has also waived its right under the MMBA to impose terms
that would impair those rights. Conducting a separate "waiver" analysis here would potentially
lead to the absurd conclusion that a legislative body had clearly intended to bind itself
contractually to its employees, but that it could, nonetheless, abrogate the very rights it had
promised, because it ha&not clearly waived its statutory right to act unilaterally at impasse.
Such anomalous results would discourage rather than promote collective bargaining under the
MMBA aq.d are therefore to be avoided. (City of Glendale, supra, 15 Cal.3d 328, 335-337.)
Because we have already determined that the language of Addenda B and C and the surrounding
circumstances demonstrate a "clear intent" to create private rights that survive expiration of the•
parties' 2009-2011 MOU, we need not retrace what are essentially the same analytic steps to
show that the County has "clearly and unmistakably" waived its right to impose terms that vary
from its contractual obligations under Addenda B and C.
Contrary to the proposed decision, we hold that parties may expressly agree to limit an
employer's right to impose terms at impasse, or they may impliedly achieve the same result by
agreeing to tenns that do not mature until after the agreement has expired. Accordingly, where,
as here, a contractual right survives expiration of the agreement, the employer is not free to
impose tenns that abrogate or impair that right. Not only would it be "grossly unfair" to change
the terms of the bargain after employees had already perfmmed services ( California League,
supra, 87 Cal.App.3d 135, 140), it would also discourage good-faith collective bargaining, since
parties could have no reasonable expectation that, once negotiated, their agreement$ would be
34

enforced. (Fountain
Valley,
supra, PERB Decision No. 625, adopting proposed dee. at p.
8;
City
of
Fontana, supra, 67 Cal.App.4th 1215, 1224-1225.)
Prohibiting Retroactive Imposition
of
Terms Containing Economic Concessions is Consistent
with California Judicial Authority Regarding Vested Rights
of
Public Employees.
In addition
to
the above issues of statutory construction and contract interpretation, the
parties have raised several significant questions involving constitutional issues
and
the scope of
PERB's authority to decide this case. Although PERB has
no
authority to decide constitutional
issues (Cal. Const., art. III,§ 3.5
19
; California Assn.
of
Professional
Sr.;ientists
v.
Schwarzenegger
(2006) 137 Cal.App.4th 371, 381-382 (CAPS
v.
Schwarzenegger)), the fact that such issues are
implicated in a labor dispute does not automatically divest
PERB
of its power and duty to
investigate, decide and remedy, alleged unfair practices. (San Diego Municipal Employees
Assn.'.'·
Superior Court (2012)206 Cal.App.4th 1447, 1458.) The agency may assert its
jurisdiction to avoid constitutional issues. (Leekv. Washington Unified School Dist. (1981)
124
Cal.App.3d 43, 51-53.) ltmay also address matters of external law directly, where
necessary to apply and interpret unfair labor practice decisions in conformity with existing
judicial interpretations
of
the MMBA or to ham1onize the MMBA with external law. (MMBA,
§ 3509, subd. (b).) In the past, such issues have included whether the constitutionally
protected or "vested" status of employee rights to defen-ed compensation or other
fo11ns
of
longevity-based benefits precludes negotiability over those subjects. (City
of
Pinole (2012)
PERB Decision No. 2288-M, p. 8;
City
of
San Jose
(2_013)
~ERB Decision No. 2341-M,
19
Under the Califomia Constitution, administrative agencies have no power to "declare
a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional
unless an appellate comi has made a dete11nination that such statute is unconstitutional; [or, to]
declare a statute unconstitutional.
...
" (Cal. Const., ali. Ill, § 3.5.)
35

pp. 46A9.) We return to these issues in the present case in an attempt to harmonize our
interpretation of the MMBA with external law.
Beca\.1Se public employment is governed by statute, and not by contract, the general rule
is "that 'public employees have no vested right in any particular measure of compensation or
benefits, and that these may be modified or reduced by the proper statutory authority .... '" ( City
of Fontana, supra, 67 Cal.App.4th 1215, 1223, citing Butterworth v. Boyd (1938) 12 Cal.2d 140,
150.) Thus, terms and condition of employment "may be modified or reduced by the proper
statutory authority" on a prospective basis.20 (Kern v. City ofLong Beach (1947) 29 Cal.2d 848,
854-855; CAPSv. Schwarzenegger, supra, 137 Cal.App.4th 371,375; City of Fontana, supra,
67 Cal.App.4th 1215, 1224-1225; Miller v. State of California (1977) 18 Cal.3d 808, 814;
Markman v. County ofLos Angeles '(1973) 35 Cal.App.3d 132, 134.) This judicial presumption
reflects the view that a legislature's primary function is to enact policies, rather than to make
contracts, and that to construe laws, which are inherently subject to revision and repeal, as
contracts would improperly curtail the essential powers of a legislative body and potentially
blind~ide the taxpaying public with unexpected obligations. ( Chisom v. Board ofRetirement of
County ofFresno Employees' Retirement Assn. (2013) 218 Cal.App.4th 400, 413-414 (Chisom).)
The MMBA similarly malces public employees' wages, hours and tenns and conditions
of employment subject to negotiation and to periodic renegotiation. (MMBA, §§ 3504, 3505;
20 The contract clauses of the state and federal constitutions limit the power of public
entities to modify their own contracts with other parties. (Cal. Const., art. I, § 9; U.S. Const.,
art. I, § 10, cl. 1.) California's courts have long held that a contract of employinent is fonned
on the first day of employinent and tlrnt rules governing the employinent contract, as they
existed at that time, are protected against changes that detrimentally affect "fundamental"
employee rights. (Retired Employees Assn., supra, 52 Cal.4th 1171, 1182; City ofRedding,
supra, 210 Cal.App.4t111114, 1119; California Teachers Assn. v. Cory (1984) 155 Cal.App.3d
494, 506 ( CTA v. Cory); Betts v. Board ofAdministration ofPublic Employees' Retirement
System (1978) 21 Cal.3d 859, 863 (Betts).) 	·
36

City ofFresno v. People ex rel. Fresno Firefighters, IAFF Local 753 (1999) 71 Cal.App.4th 82,
97; City of Torrance (2008) PERB Decision No. 1971-:-M, pp. 26-27.) The tenns of an MOU are
fixed for the duration of the agreement (City of Glendale, supra, 15 Cal.3d 328, 335-337;
Fountain Valley, supra, PERB Decision No. 625) and an employer must maintain the tertns of
an expired MOU until negotiations have resulted in a new agreement or impasse. (San Joaquin
County Employees Assn. v. City of Stockton (1984) 161 Cal.App.3d 813, 818-819 (City of
Stockton); NLRB v. Katz (1962) 369 U.S. 736 (Katz).) However, as a general rnle, public
employees have no vested right to their collectively-bargained wages or benefits beyond the
life of the agreement, because they have no legitimate expectation that such benefits will
continue, unless they are renegotiated as part of a new agreement. ( City ofFresno, supra,
71 Cal.App.4th 82, 97; City of Fontana, supra, 67 Cal.App.4th 1215, 1224-1225; Vielehr v.
State of California (1980) 104 Cal.App.3d 392.)
Although it is thus presumed that a public agency's ordinance or resolution does not grant
contractual or vested rights to its employees ( City of Fontana, supra, 67 Cal.App.4th 1215;
1224-1225), that presumption may_be overcome by clear evidence that the agency expressly or
by implication intended to create private, enforceable rights of a contractual nature. (Retired
Employe;es Assn., supra, 52 Cal.4th 1171, 1184, 1187.) A public employer and its employees
may expressly or impliedly agree to provide for "future rights" which accrue during the life of an .
agreement, but which survive or only become enforceable after its tennination. (San Mateo
County Community College District (1979) PERB Decision No. 94, p. 19 (San Mateo); John
Wiley & Sons, Inc. v. Livingston (1964) 376 U.S. 543, 555.) The fact that future rights do not
mature until after the agreement that gives rise to them has expired does not mal<:e those 1ights
tmenforceable. (Youngman, supra, 70 Cal.2d 240, 246; International Union, United Auto.,
Aerospace, andAgr. Implement Workers ofAmerica (UAW) v. Yard-Man, Inc. (6th Cir. Mich.
37

1983) 716 F.2d 1476, 1479.) In each case, the determinative question is whether the parties .
intended to form a contract. (City
of
Redding, supra, 210 Cal.App.4th 1114, 1119.) Because
contracts between public agencies and their employees are interpreted according to the same ·
rules as other contracts, where· a public agency intended to create private rights
of
a contractual
nature, such promises are enforceable against the agency. (Civ. Code,§ 1635; Kemper Const.
Co., supra, 37 Cal.2d 696, 704; Retired Employees Assn., supra, 52 Cal.4th 1171, 1178-1179;
Sheppard
v.
NOCROP, supra, 191 Cal.App.4th 289, 313.)
Legislative intent to grant contractual rights may be
expressly state4, or it may be
implied,
if
the legislative act contains an unambiguous element
of
exchange
of
co!1sideration
by
a private party in return for consideration offered
by
the agency. (Retired EmployeesAssn.,
supra, 52 Cal.4th 1171, 1184.) Where the legislation is the ratification or approval
of
a contract,
the intent to form a contract is clearly shown. (Ibid.) Although Government Code section 25300
requires that the compensation
of
county· employees
be
addressed in an ordinance or resolution,
21
· the statute does not prohibit a county from forming a contract with implied terms.22 The
. Supreme Court has long held that public employment gives rise to
certain
implied obligations
which are protected
by
the-Constitution's contract clause. Among these obligations is the right
of
public employees to compensation for services rendered: (Kern
v.
City
of
Long Beach
(1947) 29 Cal.2d 848, 852-853; Olson
v.
Cory (1980) 27 Cal.3~ 532, 537-538; Sonoma County
Organization
of
Public Employees
v.
County ofSonoma (1979) 23 Cal.3d 296, 314.)
21
"TI1e board
of
supervisors
shal1
prescribe the compensation
of
all county officers and
shall provide for the munber, compensation, tenure, appointment and conditions
of
employment
of
county employees. Except as otherwise required by Section 1 or 4
of
Article
XI
of
the
Califomia Constitution, such action may be taken by resolution
of
the board of supervisors as
well as by ordinance." (Gov. Code,§ 25300.)
22 Implied contractual terms are no less enforceable than express terms, so long as they
do not vary from the express tenns. (Retired Employees Assn., supra, 52 Cal.4th 1171, 1178.)
38

Under California law, an employee acquires an irrevocable or "vested" interest in a
benefit when the employment contract is formed, even if the benefit does not "mature" until
later. 23 A "statute fixing government payments may amount to an offer which, when accepted
by performance, culminates in a contract between the government and the offeree." (California
Assn. ofNursing Homes etc., Inc. v. Williams (1970) 4 Cal.App.3d 800, 817.) Once vested, the
right to compensation cannot be reduced or eliminated without unconstitutionally impairing the
contract obligation. (Theroux v. State of California (1984) 152 Cal.App.3d 1, 8; Olson v. Cory,
supra, 27 Cal.3d 532, 537-538.) A public agency may not deny or impair payment of deferred
compensation under an implied contract any more than it may refuse to malce salary payments
provided by an express term of an agreement. (California League; supra, 87 Cal.App.2d 135,
139.) Thus, the mles governing the employment contract, on the first day of employment, are
protected against changes that detrimentally affect the public employee's '"fundamental" rights,
including the right to compensationfor services rendered. (Retired Employees Assn., supra,
th
52 Cal.4 	1171, 1182; City of Redding, supra, 210 Cal.App.4th 1114, 1119; CTA v. Cory, supra,
155 Cal.App.3d 494, 506; Betts, supra, 21 Cal.3d 859, 863.)
Vested contractual rights may be modified on a prospective basis before they become
due, so long as such changes are reasonable, i.e., they must have been adopted to maintain the
flexibility and integrity of the system, they must bear some material relationship to its purpose
and successful operation, and any changes which result in a disadvantage to employees must be
23 The "vesting" of a benefit may be distinguished from its "maturing," which
occurs after all conditions precedent to the payment of the benefit have occurred or when
the benefits are otherwise within the control of the employee. (Retired Employees Assn., supra,
52 Cal.4th 1171, 1189, fu. 3.) Thus, a longevity-based benefit, such as an annual promotion or
pay increase for satisfactory service, "vests" on the first day of employment when such a policy
is in place. The benefit does not "mature," i.e., become due and owing, however, lllltil
satisfactory service has been performed for one year or as otherwise specified by the established
policy. (California League, supra, 87 Cal.App.3d 135, 139.)
39

offset by comparable new advantages. (Allen v. City ofLong Beach (1955) 45 Cal.2d 128, 131;
California League, supra, 87 Cal.App.3d 135, 140-141; Valdes v. Cory, supra,
139 Cal.App.3d 773, 784.) While public employees thus have no irrevocab,le right to continued
employment, or to continue to accrne a particular benefit after it has been repealed, once work
has been perfonned while a contract or unilateral promise isjn effect, permitting retroactive
revocation of that promise would be unjust. (Retired Employees Assn., supra, 52 Cal.4th 1117.)
•
A public employee's right to deferred compensation thus need not be expressly stated,
because it is implied from the fact that-the employee has already performed services in
exchange for the promised compensation. (Youngman, supra, 70 Cal.2d 240, 246; State of
Mississippi,for Use ofRobertson v. Miller (1928) 276 U.S. 174, 179.) While frequently the
subject of retirement benefits litigations, these principles are no less applicable to other forms of
deferred compensation, including longevity-based pay increases. ( City of Redding, supra,
210 Cal.App.4th 1114; California League, supra, 87 Cal.App.3d 135, 140; Youngman, supra,
70 Cal.2d 240,246; Olson v. Cory, supra, 27Cal.3d 532, 537-538; County of Sonoma, supra,
23 Cal.3d 296, 314.)
In California League, a public agency's Personnel Policies and Procedures provided for
various longevity-based benefits, including an annual promotion and pay increase schedule.
The Personnel Policies and Procedures had been adopted by the agency's governing body and
had been in place for several years. After bargaining to impasse with the employees'
representative, the agency unilaterally eliminated.the longevity-based benefits. The
representative petitioned for a writ of mandate to compel the agency to reinstate benefits.
The trial court ruled that the agency could not eliminate the benefits as to those employees
who had been working towards them before their unilateral elimination. The appellate court
affinned, reasoning that it would be "grossly unfair" to allow a public agency to eliminate
40

such benefits and reap the reward
of
services already performed. ( California League, supra,
87 Cal.App.3d 135, 140.)
Youngman
relies
on
similar reasoning. In
Youngman,
a public employer maintained a
salary schedule for all classifications
of
employees, which established five steps within each
classification. The "announced practice"
of
the employer was to review each employee's
situation annually and to advance the .employee to the next step
if
his or her performance merited
advancement. The practice
of
annual review and advancement upon satisfactory performance
was contained
in
the employer's Personnel Policies following consultation with the employees'
designated representative. (Youngman, supra,
10
Cal.2d 240, 245.) After the employer
unilaterally discontinued this practice, an employee and the representative filed suit, asserting
various causes
of
action. The trial court dismissed the complaint. The California Supreme Court
reversed, explaining
that
the complaint stated a cause
of
action for breach
of
express and implied
contracts for the employer's discontinuation
of
its practice
of
annual review and advancement.
The court explained that, even
if
employees were hired on a month-to-month basis, and thus had
no reasonable expectation oflong"term employment, the public agency must still honor its
implied promise
of
annual wage increases,
if
the employees continued worldng until the time
when the ammal increases were to take effect. (Id. at p 247.)
We are cognizant
of
the Supreme Court's cautionary note in Retired Employees Assn.,
where the Court stated that, as with any contractual obligation that would bind one party for a
period extending far beyond the term
of
the employment contract, implied contractt1al rights to
vested benefits should not be infen·ed without a clear basis in the contract or convincing
extrinsic evidence. (Retired Employees Assn., supra, 52 Cal.4th 1171, 1184; see also City
of
Fontana, supra, 67 Cal.App.4th 1215, 1223; Chisom, supra, 218 Cal.App.4th 400, 413-414.)
We believe the facts in the present case meet that test. As discussed above,
SETIJ
has offered a
41

plausible interpretation
of
Addenda B and C, while the County has offered no interpretation
of
the operative "will
be
placed" language. To the extent it is necessary to examine extrinsic
evidence, SEIU has also offered uncontradicted testimony that it alone among County unions
specifically bargained for the promises contained in Addenda B and C
in
return for agreeing to
two-years
of
economic concessions.
Moreover, because SEIU has asserted that it is entitled to a
on~time
adjustment and not
to ongoing application
of
the flex promotion and merit step increase schedule included
in
the
County's Personnel Rules, the contractual rights in dispute are not being asserted for a p~riod
extending far beyond the term
of
the employment contract. Rather, the parties' designation
of
the first pay period after expiration
of
the agreement comports with their intent to suspend the
County's promotion and pay increase schedule only for the term
of
the two-year MOU.
Because the parties have limited the issue to whether the County was contractually obligated to
make a one-time adjustment to employee classifications and wage rates, we need not and do
not decide the separate
i_ssue
of
whether the County may lawfully impose a waiver
of
the
statutory rights included in its Personnel Rules as opposed to exercising its duty to consult over
a modification or elimination
of
the underlying Personnel Rules. (See, e.g., California League,
supra, 87 Cal.App.3d 135, 140.)
Prior PERB Precedent Regarding Unilateral Imposition
of
Retroactive Economic Concessions
In addition to being consistent with existing judicial interpretations
of
the MMBA and
with persuasive private-sector precedent, the rule annmmced today is consistent with long-
standing PERB precedent. In San Mateo, supra, PERB Decision No. 94, a cormmmity college
dishict facing likely budget cuts brought on by the passage
of
Proposition 13 unilaterally froze
annual step increases paid to classified employees. In concluding that the possibility or even
likelihood of budget reductions did not authorize unilateral action with respect to employee
42

wages, the Board observed that the school district had "disregarded the employees' vested
contract1.1al right to step increases," because "[t]he employees' lawful interest had accrued over
time and was incorporated in the collective [bargaining] agreement." (Id. at p. 19, citing
California League, supra, 87 Cal.App.3d 135.) Although the step increases at issue had yet to be
paid at the time they were "frozen," the Board's reference to ''vested" contractual rights and its
reliance on Californ_ia League makes clear that it considered the freeze an impennissible
retroactive action, because it affected deferred compensation based on hours th:;tt employees had
already worked.
In Laguna Salada Union School District (1995) PERB Decision No. 1103, the parties
presented extensive argument on whether an employer may, after bargaining to impasse and
exhausting any applicable impasse procedures, lawfully implement a retroactive pay cut.
Rather than decide that issue, the Board concluded instead that the employer was not
authorized to act unilaterally because the parties had never discussed the specific methodology
for calculating the adjustment, such as whether the salary reduction would be taken from a
single paycheck or spread over the course of several weeks or months. Although the Board's
reasoning suggests that a retroactive reduction in pay or benefits may be permitted, where fully.
negotiated and included in a collective bargaining agreement, it thus does not speak to the
separate issue of whether a retroactive reduction in wages or benefits may be impo_sed
unilaterally, even after·exhausting negotiations and impasse resolution procedures.
In City of Pinole, supra, PERB Decision No. 2288-M, the Board returned to the issue of
unilaterally-imposed retroactive reductions in employee compensation. In City of Pinole, the
43

factual allegations were as follows.2 4 · The employer presented its LBFO on June
9,
2011. The
LBFO included a proposal to shift pension contribution costs to employees, effective July
1,
2011. The parties were unable to agree on the issue before the July 1 effective date and did not
<.
conclude impasse resolution procedures until July 26, 2011.
	On
July 29, 2011, the employer
imposed its June 9 LBFO, including the proposal to shift pension costs to employees
as
of
July
1,
2011. The employees' representative argued that the employer was not privileged to
· implement terms retroactive to July
1,
because the parties did not exhaust impasse resolution
procedures until almost four weeks later.
Rather than considering the retroactive nature
of
the employer's unilateral action on
employee wages and benefits, the City
of
Pinole Board focused instead on whether the
employer had provided adequate notice of the proposed change to the exclusive representative.
Because the employer had presented its LBFO on
Jur~e
9, some weeks before the effective date
.
of
the proposed reduction
i_n
employee benefits, the fact that the parties were still bargaining on
July 1 did not, in the City
of
Pinole Board's view, preclude the employer from eventually
implementing that proposal, once the parties had bargained in good faith
to
impasse and
exhausted impasse resolution procedures. Citing Public Employment Relations Bd.
v.
Modesto
City Schools Dist. (1982) 136 Cal.App.3d 881, 900-901 (Modesto), the City
of
Pinole Board
reasoned that, once the impasse resolution procedures had been exhausted, the employer may
.,
24
Because City
of
Pino,le involved Board review of a dismissal without hearing,
pursuant to PERB regulations and decisional law, the charging party's factual allegations were
accepted as true for the purpose of determining whether the charge stated a prima facie case.
(PERB Regs. 32620 and 32640; Eastside Union School District (1984) PERB Decision
No. 466.)
44

lawfully implement any policies that are reasonably comprehended within its pre-impasse
proposals. (City of Pinole, supra, PERE Decision No. 2288-M, p. 13.)2 5
However, the passage cited from Modesto does not support the conclusion that, at
impasse, an employer may impose any proposal, including a retroactive proposal for less
favorable wages or benefits, so long as the reduction was "reasonably comprehended" by the
employer's final pre-impasse proposals. In explaining the private-sector rule that imposed terms
need not be "absolutely identical" in every respect to the employer's last offer, the appellate
court in Modesto stated that, "While the employer has no license to grant a wage increase greater
than any offered the union at the bargaining table, the employer may institute a wage increase
identical with one which the union has rejected as too low." (Id. at pp. 900-901, original
emphasis, citing Katz, supra, 369 U.S. 736, 745 and other private-sector authorities.) Neither the
appellate comt in Modesto, nor the Katz decision, nor any other private-sector authorities have
held that an employer niay m1ilaterally impose less favorable terms for work that has already
been performed.
While adequate notice is a ne?essary precondition for lawfully imposing a LBFO at
impasse, it is not sufficient. 	Private-sector authorities have long held that, even when an
employer has bargained in good faith to impasse, it may not take unilateral action that
disparages the collective bargaining process, interferes with employee choice, or undermines ·
the authority of the representative. (Toledo Typographical Union No. 63 v. NLRB
25 Alternatively, the City of Pinole Board affirmed dismissal of this allegation, because
the charge failed to allege facts showing that any deduction from employee paychecks had
actually occuned before the parties reached impasse. However, as we explained in City of
Sacramento (2013) PERB Decision No. 2351-M, a unilateral change occurs when the
employer malces a fim1 decision to implement the change, regardless of when or whether the
change in policy is ever implemented or is later rescinded. (Id. at p. 27, disapproving of City
of San Diego (Office of the City Attorney) (2010) PERB Decision No. 2103-M; see also County
of Sacramento (2008) PERB Decision No. 1943-M, p. 12.)
45

(D.C. Cir. 1990) 907 F.2d 1220, 1222-25; Central Metallic Casket Co. (1950) 91 NLRB 572,
573-74; NLRB v. Borg-Warner Corp., Wooster Div. (1958) 356 U.S. 342; Boise Cascade Corp.
(1987) 283 NLRB 462,463, affd. (D.C. Cir. 1988) 860 F.2d 471.) 	PERB has similarly held that
"not all terms and conditions contained within a last, best and final offer may lawfully be
implemented by an employer," even though negotiations have reached a bona fide impasse.
(Rowland Unified School District (1994) PERB Decision No. 1053, pp. 7, fn. 5, 12; see also
Los Angeles Unified School District (2013) PERB Decision No. 2326, pp. 38-39; San Mateo
County Community College District (1993) PERB Decision No. 1030, p. 18, fn. 11.) Providing
adequate notice or otherwise complying with all procedural reqliirements will not make a policy
or rule lawful, if it is inconsistent with the language or purposes of the MMBA or with external
law. (International Brotherhood ofElectrical Workers v. City of Gridley (1983) 34 Cal.3d 191,
199-202; City oflmperial(2007) PERB Decision No. 1917-M, pp. 18-19; Berkeley, supra,
PERB Decision No. 2268, pp. 2-3, fn. 3.) Notice of an employer's proposal is thus a separate
question, which cannot, by itself, determine the lawfulness of its implementation.
In Saddleback Valley Unified School District (2013) PERB Decision No. 2333
(Saddleback), the Board found nothing unlawful in a school district's unilateral imposition of the
equivalent of a retroactive reduction in classified employee salaries, when the pay cut was
applied prospectively, i.e., so as not to affect wages or benefits already earned when the cut was
imposed. In Saddleback, an eniployer sought $4.57 million in negotiated concessions from the
representative of its classified employees. During nine meetings, the parties were unable to
agree on either the appropriateness of the $4.57 million figure or on any fonni.:tla to get there.
On hme 25, 2010, the employer made its last, best and final offer which reiterated the
$4.57 million in concessions to be achieved by, among other measures, a 7.39 percent pay cut to
all classified employee salaries, effective July 1, 2010. However, the LBFO also stated that, "In
46

the event a later effective date is implemented for [the] salary decrease, an additional equivalent
percentage ... salary decrease per month will be applied to reflect the loss of savings."
During factfinding, the representative made four additional proposals, none of which
would result in the $4.57 million in cost savings demanded by the employer. On August 31,
2010, the employer's governing board voted to impose its June 25 LBFO, which included the
July 1, 2010 effective date for the pay cut, but which also included the language specifying that
if the pay cut and other concessions were not implemented until a later date, then the employer
would simply reduce employee salaries by an additional amount each month as necessary to
arrive at the predetermined $4.57 million demanded by the employer. Although the pay cut
ultimately imposed on August 31, 2010 was the equivalent of a retroactive reduction dating back
to .July 1, 2010, in accordance with the terms of the employer's June 25 LBFO, in actual fact, the
money was subtracted from employee paychecks on a prospective basis. Thus, while the parties,
the ALJ and the Board's decision in that case referred to the salary reduction imposed by the
employer as applying "retroactively," the employer did not attempt to claw back wages or
benefits already earned. While Saddleback, supra, PERB Decision No. 2333, thus involved an
employer's demand for the monetary equivalent of a retroactive pay cut, it is factually
distinguishable from City of Pinole, supra, PERB Decision No. 2288-M, in that no pay or
benefits was subtracted for hours already worked, and from Laguna Salada, supra, PERB
Decision No. 1103, in that the methodology for implementing the proposed pay cut was
disclosed in the employer's LBFO.
More recently, in City of San Jose, supra, PERB Decision No. 2341-M, the Board held
that a union had stated a prima facie case that the employer breached its duty to bargain in good
faith by imposing a proposal that would retroactively impair vested rights of separating
employees to unused sick leave compensation. Although City of San Jose cited to the Board's
47

decision in City of Pinole, because City of San Jose involved a dismissal without hearing, we
remanded for further proceedings rather than address the issue of when, if ever, an employer may
unilaterally impose reductions in employee wages or benefits for services already performed by
the employees. Consistent with judicial interpretations existing at the time PERB assumed
jurisdiction over the MMBA and with persuasive private-sector precedent, we hold that an
employer may not unilaterally impose reductions in employee wages or benefits for services
already perfonned. (California League, supra, 87 Cal.App.3d 135, 139-140; R. E. Dietz Co.,
supra, 311 NLRB 1259, 1266; Harvstone Mfg. Corp, supra, 272 NLRB 939, 942-943.)26
Accordingly, we disapprove of City of Pinole as a departure from prior Board precedent to the
extent it holds that an employer may impose economic concessions retroactively, so long as it
has satisfied its obligation to provide notice and an opportunity to bargain.27
26 By contrast, a proposal for a retroactive pay increase for public employees is a
mandatory subject of bargaining and is not prohibited as a payment of extra compensation under
Article IV Section 17 of the California Constitution nor as a prohibited gift of public funds tmder
Article XIII Section 25 of the California Constitution, (San Joaquin County Employees '.Assn.,
Inc. v. County of San Joaquin (1974) 39 Cal.App.3d 83, 86.) The difference in treatment stems
from the fact that only the employer, and not the union, may impose tenns unilaterally at
impasse. If the employer chooses not to accept a proposal to increase employee wages or
benefits retroactively, then it is under no compulsion to implement such a proposal and cannot
complain that less favorable tenns of the employment contract were imposed retroactively
without its consent.
27 Our re-examination of this issue in City of Pinole does .not affect any other issues
raised by that cas~. Additionally, while PERB is not empowered to overrule judicial
interpretations of the MMBA (MMBA, § 3509, subd. (b); see also State of California
(Department ofPersonnel Administration) (2008) PERB Decision No. 197 8-S, p. 9, citing Auto
Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d450, 455), the
Legislature's 2000 amendment of11MBA fonner section 3505.4 (now section 3505.7) to clarify
that imposition of an employer's LBFO does not result in a memorandum of understanding calls
into question Social Services Union v. Board of Supervisors (1990) 222 Cal.App.3d 279 and
similar decisions to the extent they make no distinction between terms imposed unilaterally at
impasse with contractual terms established through bi-lateral negotiations. (MMBA, § 3505.7,
former§ 3505.4; City of Santa Rosa (2013) PERB Decision No. 2308-M, p. 5.)
48

Miscellaneous Issues Raised in the County's Briefing
Finally~
we
address several points raised in the Countfs response to SEIU's exceptions.
First, the County is correct that the "Full Understanding and Re-opener" clauses in the parties'
2009-2011 MOU do not assist SEIU in this matter, as both clauses operate to limit or waive the
subjects about which the parties may demand bargaining during the term
of
the MOU. Neither
article includes language that would preclude bargaining over any subjects during the
negotiations
for
a successor agreement. However, the fact that the parties were negotiating a
successor MOU did not authorize the
Cotm.ty
to insist on re-negotiating its outstanding
liabilities under the previous MOU. (California League, supra,
87
Cal.App.3d
135,
140.) The
statutory duty to meet and confer over wages, hours, and other terms
·and
conditions
of
employment pertains to future wages, hours and other terms and conditions
of
employment.
(Swifi Adhesives, supra, 320 NLRB 215, 216.) Unless prohibited by external law, parties are
free to negotiate over concessions (Mount Diablo Education Association (DeFrates) (1984)
PERB Decision No. 422, pp. 5-6), but the duty to negotiate over mandatory subjects
of
bargaining does not require them
to
re-negotiate terms and conditions included in a previous
agreement, or authorize the employer to impose proposals that abrogate outstanding
obligations under a previous agreement or alter the conditions
of
employment for services
already performed. (Swift Adh~sives.)
' 	.
Second, the County argued, and the ALJ agreed, that Fountain Valley, supra, PERB
Decision No. 625, was factually distinguishable, because it involved a mid-term modification
ra.ther than a mtllateral change to the terms of an expired agreenient. However, Fountain
Valley is gennane to this discussion for an entirely separnte reason. It demonstrates that,
depending upon the nature of the allegation, the charging party in a unilateral change case
i11ay
not need to show that it was denied notice and opportunity to bargain, if the parties are
49

operating under a contractually"imposed restriction on their ability to alter terms and
conditions
of
employment. (See, e.g., City
of
Glendale, supra, 15 Cal.3d 328, 335-337.)
While the ALJ correctly noted that, unlike Fountain Valley, the present case does not involve a
change that took effect during the term
of
the MOU, that observation does not address the
separate question
of
whether the contractual rights embodied
in
Addenda B and C could
be
altered retroactively, even assuming the employer provided notice and opportunity to bargain.
Third, we reject the County's argument that "any limitation on [its] ability to negotiate
wages
in
a successor MOU\vould run afoul''
of
the constitutio11al guarantee that a county's
governing
body
"shall provide for the number, compensation, tenure, and appointment
of
[its]
employees" (Cal. Const., art. XI, § 1, subd. (b), emphasis added.) According to
the
County,
the MMBA may
impose only procedural requirements
on
how a ?ounty sets employee
compensation but
it
cannot affect wages
in
any substantive way. The County's statement
of
the law is correct; nothing in the MMBA's meet and.confer requirement is designed to
supersede the substantive provisions
of
a county's charter or local rules, nor to establish
substantive terms and conditions
of
employment. (MMBA, § 3500; Seal Beach Police Officers
Assn.
v.
City
of
Seal Beach (1984) 36 CaL3d 591, 601.) But that is not the issue here.
The County's argument ignores the distinction between an employer's statutory
obligation to bargain over negotiable matters and any contractual obligation it may have
incurred to perform, even after expiration
of
a collective bargaining agreement. The procedural
obligations imposed
by
the MMBA are two-fold: (1) to maintain the status quo terms and
conditions
of
employment until negotiations have resulted in impasse or agreement (City
of
Stockton, supra, 161 Cal 1App.3d 813, 818-819; The Finley Hosp. (Sept. 28, 2012) 359 NLRB
No. 9); and (2) to refrain from repudiating contractual obligations that expressly or impliedly
become due and owingfollowin.g expiration of
tl1e 2009-201 l MOU. ( California League,
50

supra, 87 CaLApp.3d 135, 140; City of Redding, supra,. 210 Cal.App.4th 1114, 1122.) Because
we are concerned here with the County's repudiation of a contractual obligation to restore
employees to the pre-existing promotion and salary structure upon expiration of the 2009-2011
MOU, we perceive no conflict between honoring the vested rights of employees agreed to by
their employer, and the County's constitutional right to set compensation for its employees.
The only substantive limitation on the County's ability to negotiate over employee w~ges is
one voluntruily agreed to by the County itself, which it is not free to repudiate.
ORDER
Based on the foregoing findings of fact a11d conclusions oflaw and the entire record in
this case and pursuant to the Meyers-Milias-Brown Act (MMBA), Government Code
section 3509, the Public Employment Relations Board (PERB or Board) REVERSES the
administrative law judge's (ALJ) proposed decision and finds that the County of Tulare
(County) violated sections 3505 and 3506.5, subdivision (c)~ of the Government Code, a11d
committed an unfair practice pursuant to section 3 5 09, subdivision (b) of the Government
Code, and PERB Regulation 32603, subdivision (c) (Cal. Code Regs., tit. 8, sec. 31001 et
seq.), by failing and refusing to meet and confer in good faith with Service Employees
International Union, Local 521 (SEIU) when the County repudiated the tenns of Addenda B
a11d C of the County's 2009-2011 Memorandmn of Understanding with SEIU. The above
con.duct also violated section 3506.5, subdivisions (b) and (a), of the MMBA, by denying SEIU
rights guaranteed to it by the MMBA, and by interfering with the rights of employees to join,
fonn and participate in the activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee relations.
The County, its governing board and its representatives, shall:
51

A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and confer in good faith with SEIU, the
exclusive representative of County employees, by unilaterally imposing provisions that impair
the vested rights of employees in flexibly allocated classifications as set.forth in the expired
2009-2011 MOU between the County and SEID.
2. 	Denying SEID rights guaranteed by the MMBA to represent employees.
3. 	Interfering with the rights of employees of the County to form, join, and
participate in the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICES OF THE MMBA;
1. 	Restore the prior status quo by rescinding the unilaterally imposed freeze
on promotions	. 	for employees in flexibly allocated classifications and on merit step increases,
as set forth in the County's Personnel Rules, and as incorporated by reference in Addenda B
and C of the parties' expired 2009-2011 MOU.
.
2. 	Malce whole the affected employees in flexible classifications by
adjusting employee cl_assifications and pay rates to the classification level and pay rate that
would have occurred under the County's Personnel Rules in the absence of Addenda Band C
of the parties' expired 2009-2011 MOU, and by granting employees such merit step increase_s
as would have occuned under the County's Personnel Rules in the absence of Addenda Band
C of the parties' expired 2009-2011 MOU, with interest at seven (7) percent per annum
accruing from the first payroll period following expiration of the 2009-2011 MOU.
3. 	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations where notices to employees of the County are customarily posted,
52

copies of the Notice attached hereto as an Appendix, signed by an authorized agent of the
County. Such posting shall be maintained for at least thirty (3 0) consecutive workdays. In
addition to physical posting of paper notices, the Notice shall be posted by electronic message,
intranet, intemet site, and other electronic means customarily used by the County to
communicate with SEID-represented employees in flexibly allocated classifications. The
County, its governing board and its representatives shall take reasonable steps to ensure that
the posted Notice is not reduced in size, defaced, altered or covered by any material.
4. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The County
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regc1-rding compliance with this Order shall be concurrently served oi1 SEID or its
designated counsel.
· Members Huguenin and Winslow joined in this Decision.
53

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State
of
California
After a hearing
in
Unfair Practice Case No. SA-CE-748-M, Service Employees
International Union, Local 521
v.
County
of
Tulare,
in
which all parties had the right to
participate, it has been found that the Co1mty
of
Tulare (County) violated the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3505 and 3506.5, subdivision (c), and
committed an unfair practice pursuant to section 3509, subdivision (b), and PERE
Regu,lation 32603, subdivision (c) (Cal. Code Regs., tit. 8, sec. 31001 et seq.)
by
failing and
refusing to meet and confer
in
good faith with the Service Employees International Union,
Local 521 (SEID) and·unilaterallyrepudiating the tenns
of
Addenda
Band
C
of
the County's
2009-2011 Memorandum
of
Understanding (MOU) with SEID. The above conduct also
violated Government Code section 3506.5, subdivisions (b) and {a),
by
denying SEID rights
guaranteed to
it
by
the MMBA, and by interfering with the rights
of
employees to join, form
and participate in the activities
of
employee organizations
of
their own choosing for the
purpose
of
representation on all matters
of
employer-employee relations.
As a result
of
this conduct,
we
have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
. 	1. 	Failing and refusing to meet and confer
in
good faith with SEIU
by
unilaterally imposing provisions that impair the vested rights
of
employees to flex promotions
and merit step -increases as set forth in the expired 2009-2011 MOU between the County and
SEilJ.
2. 	Denying SEIU rights guaranteed
by
the MMBA to represent employees.
3. 	Interfering with the rights
of
employees
of
the County to form, join, and
participate in the activities
of
employee organizations
of
their own choosing for the purpose
of
representation on all matters
of
employer-employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICES OF THE MMBA:
1.
	Restore the prior status quo
by
rescinding the unilaterally imposed freeze
on flex promotions and merit step increases, as set forth in the County's Persmmel Rules, and
as incorporated
by
reference in Addenda B and C
of
the parties' expired 2009-2011 MOU.
2. 	Make whole the affected employees in flexible classifications by
adjusting employee classifications and pay rates to the classification level and pay rate that
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY (30)
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE REDUCED
IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER MATERIAL.

would have occurred under the County's Personnel Rules in the absence of Addenda Band C
of the parties' expired 2009-2011 MOU, and by granting employees such merit step increases
as would have occurred under the County's Perso1mel Rules in the absence of Addenda Band
C of the parties' expired 2009-2011 MOU, with interest at seven (7) percent per annum
accruing from the first payroll period following expiration of the 2009-2011 MOU.
Dated: 	COUNTY OF TULARE
By: Authorized Agent
---------~----
2