Imperial Irrigation District (PERB 2861M)

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 465, AFL-
CIO,
Charging Party,
v.
IMPERIAL IRRIGATION DISTRICT,
Respondent.
Case No. LA-CE-1482-M
PERB Decision No. 2861-M
May 8, 2023
Appearances: Ochoa Law by Ricardo Ochoa, Attorney, for International Brotherhood
of Electrical Workers, Local 465, AFL-CIO; Liebert Cassidy Whitmore by Mark
Meyerhoff and Kevin Chicas, Attorneys, for Imperial Irrigation District.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
BANKS, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Imperial Irrigation District and cross-exceptions by
International Brotherhood of Electrical Workers Local 465, AFL-CIO (IBEW) to a
proposed decision of an administrative law judge (ALJ). The parties’ dispute is set
against the initial stages of the COVID-19 pandemic. On March 21, 2020,1 the District
proclaimed a local emergency in response to the novel COVID-19 coronavirus,
whereby it directed its staff to “take the necessary steps for the protection of life,
health and safety” and approved the District General Manager to take “necessary
1 All dates hereafter refer to 2020 unless otherwise noted.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

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actions.” On March 26, the District notified IBEW of its plan to sequester a set of
critical employees onsite at its facilities to ensure continued energy and water service
to its communities.
Negotiations began on April 8 and continued apace. From the outset and
throughout bargaining, the District claimed it had the ability to unilaterally impose
terms pursuant to section 3504.5 of the Meyers-Milias-Brown Act (MMBA), which
provides for an emergency defense; yet, the District also stated that it preferred to
reach an agreement with IBEW prior to implementing an employee sequestration
policy.2
Over the next 10 days, the parties exchanged several proposals and eventually
narrowed their outstanding issues to only two, compensation and staffing methodology
for sequestration if the District could not enlist a sufficient number of volunteers. On
April 17, the District sent IBEW a fourth counterproposal and stated that it would likely
be the District’s last offer as implementation was imminent. IBEW sent the District a
fifth counterproposal on the same day, but the District did not respond to it anytime
thereafter. Instead, on April 20, the District implemented its “Emergency Policy
Pursuant to California Government Code Section 3504.5 Re Sequestration of Critical
Employees” (Sequestration Policy), which impacted unit employees’ terms and
conditions of employment including their hours of work, seniority, and overtime
compensation. On April 25, the District began sequestering selected employees at its
facilities in 21-day periods. During this time, employees worked daily 12-hour shifts,
2 The MMBA is codified at Government Code section 3500 et seq. All further
statutory references are to the Government Code.

3
followed by 12-hour non-productive periods, and resided at worksites in individual
recreational vehicles (RVs) the District provided. The District never returned to the
bargaining table after implementation.
In the course of bargaining, IBEW also sent requests for information (RFIs) to
the District on April 13 and April 16. The District never responded to either request.
The proposed decision concluded that the District refused and failed to meet
and confer in good faith with IBEW over the Sequestration Policy, unilaterally
implemented the Sequestration Policy, and failed to respond to the two RFIs, in
violation of the MMBA.
We have reviewed the record and the parties’ arguments in light of applicable
law. Like the ALJ, we find that the District violated the MMBA. However, we depart
from the proposed decision’s reasoning, as well as from its remedial order.
FACTUAL BACKGROUND3
The District is a public agency within the meaning of MMBA section 3501,
subdivision (c) and PERB Regulation 32016, subdivision (a).4 IBEW is the exclusive
representative of approximately 900 employees in the District’s Rank and File Unit.
The District provides water to 500,000 acres of agricultural land and several
cities in the Imperial Valley. It also supplies energy to approximately 150,000
customers throughout its service area, which encompasses the Imperial Valley and
the Coachella Valley. As a “balancing authority,” the District maintains the balance of
3 Neither party excepted to the ALJ’s factual findings. We therefore draw the
majority of our factual background from the proposed decision.
4 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

4
any energy coming in and going out. The District is also an energy transmission
operator, monitoring voltage from the high level to end-use customers. The District is
responsible for balancing the load, maintaining its local grid, and ensuring that it does
not cause harm to any of its neighboring utilities, which are all part of the larger
Western Interconnection grid, and successively larger energy grids that tie nearly the
entire country together.
At all times relevant, the District’s General Manager was Enrique “Henry”
Martinez and the District’s Assistant General Manager was Sergio Quiroz. The
District’s Manager of Human Resources, William “Dan” DeVoy, had been serving in
that position for 15 years as of the formal hearing in this matter. The District’s Energy
Operations and Infrastructure Manager was Mario Escalara, and the Assistant Energy
Manager was Mat Smelser. The Water Manager was Michael Pacheco.
IBEW’s Business Manager and Financial Secretary was Nathaniel Fairman. He
had served in those roles for approximately five years as of the formal hearing.
Fairman and DeVoy served as chief negotiators for the Sequestration Policy.
Memorandum of Understanding (MOU) and Related Policies.
The District and IBEW were parties to an MOU that expired on December 31,
2020. MOU Article 3, section D states: “If this Agreement does not cover a specific
term and condition of employment within the scope of representation, but a District
Policy and Procedure does cover such specific term and condition of employment, the
District Policy and Procedure shall apply.” MOU Article 16 states: “The following
[District] Policy and Procedures, which are attached hereto and incorporated by
reference, shall be modified for members of IBEW.” Among the District policies listed
thereafter is Policy Number 4221 (Policy 4221), “Working Hours and Wages for

5
Nonexempt Employees.”
Policy 4221 provides in pertinent part:
“2. 	Scope
“This policy applies to all nonexempt employees of the
Imperial Irrigation District.
[¶] . . . [¶]
“4. 	DEFINITIONS
“A. Workday – A workday for the purposes of
compensation is any consecutive twenty-four (24) hour
period beginning at the same time each calendar day.
The district’s workday begins at 12 midnight and ends
at 11:59 p.m. each day.
“B. Workweek – A workweek for the purposes of
compensation is any seven (7) consecutive days
starting with the same calendar day and time each
week. The district’s workweek begins every Friday at
the midpoint of each employee’s regular daily work
schedule.
[¶] . . . [¶]
“D. Regular Hours – the 8, 9, 10 or 12 hours per workday
and 40 hours per workweek during which an employee
earns their regular rate of pay.
“E. Hours Worked – In accordance with applicable State
and Federal law, time in which the employee is suffered
or permitted to work shall be considered hours worked.
Hours worked shall not include unpaid meal periods.
Time employee spends on district property for the
convenience of the employee is not hours worked for
compensation purposes.
“F. 	Overtime – Hours worked in excess of regular full-time
hours worked in one workday (8, 9, 10 or 12 hours) and

6
in excess of 40 hours worked in one workweek.
[¶] . . . [¶]
“H. Regular Pay Rate – The rate of pay an employee earns
for work performed during regular hours of work.
Biweekly pay is generally based on 2080 hours of work
at the regular rate of pay annually.
[¶] . . . [¶]
“J. 	Overtime Pay Rate – The rate of pay an employee
earns for hours worked during overtime hours . . . The
overtime rate is one and one-half (1½) times the
employee regular pay rate. The overtime rate is double
the employee’s regular rate of pay for the following job
classifications only:
“Lineman, Apprentice
“Lineman, Senior Apprentice
“Lineman, Journeyman
“Lineman, Leader
“Lineman, Foreman
“Power Troubleshooter
“Power Troubleshooter, Leader
“Power Troubleshooter, Foreman
“Line Equipment Operators
“K. Double-Time Pay Rate – The rate of pay an employee
earns for hours worked during certain overtime hours.
The double-time rate is two (2) times the employee’s
regular rate.
[¶] . . . [¶]
“N. Biweekly Schedule Workers – Those employees who
work a schedule of flexible hours that are equivalent to
not more than 80 hours in a pay period. The biweekly
work schedule may not coincide with the biweekly pay
period and these employees may be assigned either a

7
biweekly pay rate or an hourly pay rate depending on
the scheduling of hours.
[¶] . . . [¶]
“5. 	POLICY
“A. Change in Work Schedule – The regular work schedule
of an employee may be changed by supervision in
response to workload requirements. When it is not
possible to give an employee twelve (12) hour notice of
a change in work schedule, the employee shall be
compensated at the overtime pay rate for the regular
hours worked during the first day of work on the new
schedule . . .
[¶] . . . [¶]
“E. Regular, Biweekly and Shift Work Schedules – There
are four regular work schedules to which employees
may be assigned during the workweek. They are:
“(1) 	Five eight-hour days [5/8s],
“(2) 	Four 10-hour days [4/10s],
“(3) 	Eight nine-hour days and one eight-hour day per
80-hour pay period [9/80s], and
“(4) 	Six 12-hour (6/12) days and one eight-hour day
per 80-hour pay period (12/80s).
“Biweekly and shift schedule workers may be assigned
to work rotating schedules to provide 24 hours per
day/seven days per week coverage.
“F. 	Continuous Overtime – Hours worked during the
regular work schedule will be at the regular pay rate.
The first four (4) hours of overtime work that occurs
after the end of the regular work schedule will be
compensated at the regular overtime pay rate and any
additional overtime hours worked (beyond the first four
(4[)] hours of overtime) will be compensated at the
double-time pay rate.

8
“When an employee is called out to work during
overtime hours and the same call-out work continues
into his or her regular work schedule the employee will
be paid at the overtime pay rate until the end of the
regular work schedule or the end of the call-out work,
whichever comes first. Notwithstanding the foregoing,
no overtime or double time shall be paid for work
performed during an employee’s regular work
schedule/shift, regardless of the reason or type of work
performed.
“G. Non-Working Fridays and Saturdays – On non-working
Fridays and Saturdays, hours worked during the
employee’s regular daily (8-, 9-, 10- or 12-hour) work
schedule will be paid at the overtime (1½) rate. Work
after the employee’s regular daily work schedule until
the beginning of the next regular work shift will be at
the double-time pay rate.
“H. Sundays – Hours worked on Sunday will be paid at the
double-time pay rate. Sunday will be deemed to fall on
the second day of a two-day-off schedule, on the third
day of a three-day-off schedule, and on the fourth day
of a four-day-off schedule.”
[¶] . . . [¶]
A “Sample Overtime Chart” inserted between sections 5.F and 5.G of
Policy 4221 illustrates various overtime scenarios in tables. For 24 hours worked on a
“Working Day,” employees on a “5/8” regular schedule receive 8, 4, and 12 hours
“Straight” time (at the regular pay rate), “Overtime,” and “Double Time” pay,
respectively; employees on a “4/10” regular schedule receive 10, 4, and 10 hours of
such pay; employees on a “9/80” regular schedule receive 9, 4, and 11 hours of such

9
pay; and employees on a “6/12”5 regular schedule receive 12, 4, and 8 hours of such
pay. For 24 hours worked on a “Non-Work Day (Friday, Monday, [6] Saturday),” “5/8”
employees receive 8 hours “Overtime” pay and 16 hours “Double Time” pay; “4/10”
employees receive 10 and 14 hours of such pay; “9/80” employees receive 9 and 15
hours of such pay; and “6/12” employees receive 12 and 12 hours of such pay. On a
“Non-Working Friday for 9/80,” such employees receive 8 hours of “Overtime” and 16
hours of “Double Time.” Finally, on Sundays, all regular schedule employees receive
up to 24 hours of double time.
DeVoy testified that employees in water-related classifications, unlike
employees in energy-related classifications, were exempt employees under the federal
Fair Labor Standards Act (FLSA).7 Fairman testified, however, that employees in
water-related classifications receive overtime pay for work beyond their regular work
schedule in the same manner as the undisputedly non-exempt employees in
energy-related ones.8
5 Or “12/80.”
6 Unlike the Sample Overtime Chart, the text of Policy 4221 does not refer to
Monday as a “Non-Work Day.” We infer, however, that Monday may be a Non-Work
Day for employees not on a 5/8 schedule.
7 The FLSA is codified at 29 U.S.C. § 201 et seq.
8 The ALJ did not resolve this testimonial dispute. In other circumstances, this
might require the Board to remand or to make a credibility determination itself. (See
Regents of the University of California (2020) PERB Decision No. 2704-H, pp. 16-21.)
However, as we explain in Section IV, post, we need not do so here as the parties will
have an opportunity to present relevant documentary and testimonial evidence about
this issue, among others, in compliance.

10
March 21, 2020: The District’s Board of Directors Proclaim a Local Emergency and
Authorize General Manager to Take Necessary Actions as a Result of COVID-19.
At a special meeting on March 21, the District’s Board of Directors passed and
adopted District Resolution No. 11-2020 (Resolution 11-2020), “Proclamation of a
Local Emergency,” in which the District’s Board, in light of the COVID-19 pandemic,
“proclaims the existence of a local emergency as of March 19, 2020 and directs
District staff to take the necessary steps for the protection of life, health and safety.”
Furthermore, “during the existence of said local emergency, the powers, functions,
and duties of the District shall be those prescribed by state law and by ordinances and
resolutions of the Imperial Irrigation District Board of Directors.” Finally, Resolution
11-2020 stated “that all departments of the District shall review and revise their
department emergency and contingency plans to address the risks COVID-19 poses
to their critical functions in coordination with the District’s Emergency Management
Office.”
Minutes of the special meeting reflect that District General Manager Martinez
“reported on a number of different actions taken throughout the week in response to
the COVID-19 event” and highlighted, among others, “[l]ooking at critical areas
requiring operations on a 24/7 basis” and “developing contingency plans to ensure
that the district has adequate staffing and to maintain contracting forces available to
augment staff in case of a shortage.” Following Martinez’s report, the District approved
“that the general manager take the necessary actions as a result of COVID-19
coronavirus.” Neither Resolution 11-2020 nor the minutes of the special meeting
mention sequestration of employees, by that term or another. Martinez, however,
testified that he and the District’s Board discussed sequestration during the closed

11
session, which would not be reflected in the minutes.9 District Manager of Human
Resources DeVoy testified that, “probably within th[e] week after[ ]” the special
meeting, “the District had decided . . . that it would likely need to sequester
employees.”
March 26 to April 6: The Parties Engage in Preliminary Discussions Regarding
Sequestration.
On March 26, DeVoy e-mailed Fairman: “Attached is the letter that is going out
to employees that may be asked to volunteer for shelter-in-place operations.” The
letter read:
“Your position as [job title] has been identified as critical to
the continued operation of the [department, e.g. System
Operations Center]. As the COVID-19 pandemic spreads
and intensifies, it may be necessary to sequester [District]
employees critical to the continued service of electricity and
water to our communities. Sequestering (also referred to as
‘shelter in place’) would involve being located on-site at or
near the [District] facility in which you currently work for 24
hours per day, during work and off work hours, for a period
of time, the length of which is unknown at this time. This
action would only be taken as a measure of last resort
determined to be necessary to ensure that [the District] may
continue to provide essential utility service to its customers.
If sequestering is determined to be necessary, those
employees staying on-site will be provided with necessities,
including food and shelter, as well as feasible recreation.
“We are asking staff members working in critical job
positions, such as yours, to volunteer for sequestration on-
site in the event it is determined that such a measure of last
resort is warranted. Given the critical and unique
importance of your position, we are requesting that you
volunteer to be sequestered, if necessary. We do not yet
9 Martinez further testified that sequestration was also discussed at subsequent
District Board meetings in both open and closed sessions.

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have the logistics fully resolved for sequestering . . . you
on-site, including the amount of pay you will receive for this
extended work effort, but we are developing that
information as quickly as we can to more fully inform you
and will provide that to you as soon as we are able to do
so.
[¶] . . . [¶]
“I am confident that you will not take this situation lightly as
you weigh the relative hardships this choice will impose and
you should certainly discuss this with your family. But
understand that the district likewise does not take this
lightly and is requesting volunteers now only because the
crisis is worsening at such a fast speed that we must plan
for worst case scenarios that give us some control over our
response instead of being forced into less collaborative
reactions. If you are willing to step up and volunteer, please
notify your supervisor no later than Monday, March 30,
2020.”
(Brackets and bold in original.)
At the formal hearing, Martinez explained that the “logistics” mentioned in the
second paragraph of the letter involved identifying sequestration locations, the number
of employees to be sequestered at each location, and food and amenities to be
provided to sequestered employees. According to Martinez, “it was close to a month
before we got everything together” and the District was logistically able to sequester
employees.
Other than a possible phone call, DeVoy’s March 26 e-mail was the first
communication between the District and IBEW regarding sequestration. As of that
date, the District had not yet indicated to IBEW whether it had decided to sequester
employees. IBEW subsequently approved sending the letter to bargaining unit
employees.

13
On March 27, a District-initiated conference call took place between Fairman,
DeVoy, and Quiroz. The District informed IBEW that it was looking into sequestration
but did not indicate that it had decided one way or the other to sequester bargaining
unit employees. Fairman responded that “two focal points for sequestration that
[IBEW] had were ensuring nobody was forced to sequester and they would be paid
continuously the entire time that they were sequestered.” Fairman also “talked about
negotiating a policy with the District.”
On April 2, Fairman e-mailed DeVoy, stating: “I was just sent these agreements
that were reached last week at Grant Public Utility District [or PUD], Seattle Public
Utilities, Avista, PUD of [C]helan [C]ounty, and [S]nohomish PUD.”10 Fairman added:
“In case the [District] wants to consider any of these work practices [I’]d be willing to
meet and confer.”
On April 6, Fairman again e-mailed DeVoy. Fairman wrote: “Attached you will
find an agreement we were just able to negotiate with SDG&E [San Diego Gas &
Electric] regarding the sequestration of transmission system operators in RVs for 14
weeks.”11 Fairman added: “I am hearing that [the District] is working on . . . a policy
about this and would like to be involved as early as possible in framing any agreement
10 The four public utilities or utility districts are located in the State of
Washington. Avista is a private energy company.
11 SDG&E is a private energy company. The agreement between IBEW and
SDG&E, which Fairman signed on behalf of IBEW, established two workgroups that
would be sequestered at SDG&E Mission Control “[o]n a fourteen (14) day rotational
basis,” with each day spent in sequestration consisting of a 12-hour “Working Shift”
and a 12-hour “Resting Shift,” and provided that “[a]ll hours that a Sequestered
[employee] spends on Working Shifts, and Resting Shifts, will be paid at double the
[employee] base pay hourly rate.”

14
as important as this.” Fairman closed: “Please let me know if you have any draft
policies you are working on you can share and what, other than the letter we already
approved, has been communicated to our members in the switching control center.”
April 8 to April 13: The Parties Begin to Exchange Proposals Over a Sequestration
Policy.
On April 8, DeVoy e-mailed Fairman, stating: “Please review the attached
documents regarding the ongoing [COVID]-19 emergency, meet & confer, and
proposal regarding sequestration.” DeVoy asked Fairman: “Are you available for a call
at 3:00 p.m. today to discuss?” Attached to the e-mail was a letter from DeVoy to
Fairman bearing the same date, that stated in pertinent part as follows:
“In the interest of transparency and open communication,
this letter is offered to share the District’s position regarding
the meet and confer requirements under the [MMBA] as it
responds to the COVID-19 emergency. In addition, this
letter is intended to notify the Union of the District’s
probable need to change the schedules of certain unit
members in order to ensure that the District can continue to
provide essential services, such as the distribution of
energy and water to customers in the District’s service
territory.
“Pursuant to this authority, over the last two weeks the
District has and will continue to take a number of legislative
and administrative actions to address rapidly changing
events brought on by COVID-19. To the extent these
actions constitute a change in the terms and conditions of
employment in the District’s represented bargaining units,
the District is invoking the provisions of California
Government Code section 3504.5, which authorizes the
District in cases of emergency to take immediate unilateral
action without prior notice or meeting with the recognized
employee organization. The statute also requires the
District to provide the employee organization with notice
and an opportunity to meet at the earliest practicable time
following the unilateral action in question.

15
“The District is requesting to meet with the Union to discuss
the District's probable need to implement schedule changes
for employees within the unit pursuant to the emergency
provisions of Government Code section 3504.5. Despite the
District’s ability to impose these terms without prior notice
or meeting, the District would prefer to reach an agreement,
if possible, with the Union prior to needing to implement the
action. Specifically, the District believes that it will need to
change the schedules of employees within the
classifications identified in the attached proposal and to
require such employees to remain on-duty for
consecutive 24-hour periods. The offer to meet prior to
emergency implementation of a schedule change is not
intended to interfere with the District’s need to implement
such a change pursuant to Government Code
section 3504.5 even if the parties cannot reach an
agreement prior to implementation.”
In addition to the letter to Fairman, DeVoy also attached a proposed letter of
understanding (LOU) entitled “Sequestering During Emergency Operations Specific to
COVID-19 – Coronavirus Pandemic.” The proposed LOU identified a dozen Water and
Energy Department job classifications “required to perform critical functions at Critical
Operations Centers.” Included among these job classifications was, for example, the
Electric Systems Operator classification in the District’s Energy Department. District
Assistant Energy Manager Smelser explained at the hearing that, in line with the
District’s dual function as a balancing authority and a transmission operator, “one
operator is balancing the system to make sure we deliver energy without any issues,
and the [other] operator is monitoring voltage, coordinating switching, etcetera.”
Smelser noted that these positions are difficult to fill as they require extensive training
and, for those in transmission roles, certification by the North American Energy
Reliability Council. Smelser opined that if the employees occupying them were to
become unavailable due to COVID-19, the consequences would be “catastrophic.”

16
District Energy Operations and Infrastructure Manager Escalara similarly testified that
“if we were to all of a sudden have a reduction in available staff [at the gas turbine] in
Niland, we would then have to . . . take those units offline.”12 If this were to happen at
the El Centro Generation Station, Escalara testified, “we would have a lot of large iron
just sitting idly,” representing “about . . . a third of the capacity within [the District],” the
result being that “we would have rolling blackouts.” DeVoy testified that Martinez
directed him “to start . . . meeting with IBEW about potential sequestration” “[i]n a
sense of partnership and transparency and trying to work together to put things in
place before we had to [unilaterally] implement and sequester.”
DeVoy’s April 8 letter was the first time the District expressed its position that it
could impose terms unilaterally, without prior notice or negotiating, pursuant to MMBA
section 3504.5.
Water Manager Pacheco testified that employees in the water-related
classifications listed in the proposed LOU required sequestration. He noted that a
shortage of employees in these hard-to-fill classifications would likewise have “pretty
bad” consequences, up to having to order water once a week rather than once a day,
which would result in “high carryovers”—i.e., the inability to fulfill water orders from
farmers in a timely fashion—and “[w]e would have spilled a lot of water.”
Under the heading “Critical Positions,” the proposed LOU stated:
“Once the District identifies the need for sequestration,
Management will ask for volunteers for pre-identified critical
positions. If more employees volunteer than are needed,
12 The District ultimately decided not to sequester employees in one of these
classifications, Hydro Operator.

17
positions will be filled according to seniority. If an
insufficient number of employees volunteer, Management
will designate individuals to fill the vacant positions by
lowest to greatest seniority, with appropriate qualifications.”
The proposal further stated under the heading “Guidelines”:
“At the time of sequestration, the District will begin
operating under the following guidelines in terms of its
employees:
“1. The District will solicit volunteers in Critical Operational
Centers to be sequestered, at the specified locations on
three-week rotation for the first group with the ability to
extend.
“2. Only predetermined critical positions and job
classifications will be staffed at the Critical Operational
Centers during the sequestration period.
“3. Employees will stay at the worksite 24 hours a day,
seven days a week for the identified sequestration
period. The first sequestration period shall be 21 days
with the ability to extend or rotate another volunteer
group after the initial sequestration period is complete.
“4. At the time of the initial selection process, the District
will establish a list of volunteers to participate in the
three-week sequestration period. This list will be
established in order based upon seniority. Once
selected to be sequestered, volunteers will be
scheduled to work 21 days, 12-hour shifts, followed
by 12 hours of rest-time.
“5. The District may terminate the sequestration period by
providing employees with a 12-hour notice.
“6. This LOU is not intended to set a precedent for [the]
future or intended to permanently modify the terms and
conditions of the Memorandum of Understanding
Agreement currently in place.

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“7. During the sequestration period no visitors will be
allowed at Critical Operational Centers including family
members, friends, and others.”
In addition, under the heading “Sequestration at Work” the proposal stated:
“Employees who fill positions supporting a 24-hour critical
operation will be required to ‘sequester’ for a period of
twenty-one (21) or more days, depending on the
operational needs of the department. During this period the
employee shall be housed in a location provided by the
District and employee shall not leave the work area.
Contact between those in sequestration and those not
sequestered will be highly restricted.”
As later implemented, this sequestration changed the regular work schedule of
employees that were sequestered from 8, 9, 10 or 12-hour shifts to 12-hour shifts
across the board.
Under the heading “Compensation,” the proposal stated: “Employees identified
as ‘Critical’ employees, volunteering to ‘sequestration’ required to support a 24-hour
operation will work 12-hour shifts respectively per day for a predetermined time frame
based on the required ‘sequestration’ time.” This statement was followed by a chart
showing how sequestered employees would be paid for their 12 “Productive Hours”
and their 12 “Non-productive/Rest Period” hours on each of the seven days of each
week in sequestration. Regarding “Productive Hours,” the chart indicated that
sequestered employees would receive 12 hours of “straight” time pay on days one
through three of each week; 4 hours of straight and 8 hours of “one & one-half” time
pay on day four; 12 hours of one and one-half time pay on days five and six; and 12
hours of “double” pay on day seven. Regarding “Non-productive/Rest Period” hours,
the chart indicated that sequestered employees would receive 12 hours of straight

19
time pay on each of the seven days of the week for a total of 84 hours. Thus,
sequestered employees would receive the equivalent of 196 hours at their regular rate
of pay each week.13
Later on April 8, Fairman e-mailed DeVoy that he was not available for a call
that day but would be available the next day. Fairman also stated:
“Every single agreement that I have sent you, both from
public agencies and private utilities, have the workers being
paid doubletime [sic] for the entire time they are
sequestered so I cannot begin to describe my
disappointment in this initial proposal that has our members
being only compensated at the straight time rate like it’s
business as usual. Like they are not sacrificing time away
from their families. Like they can just pick up and go home
to see their kids at any time. [¶] This is NOT business as
usual. This is a one in one hundred year event. Every other
utility and public agency is treating it as such. [Y]ou will
absolutely see that much in any counter proposals we will
consider.”
Fairman also sent DeVoy a sequestration agreement between a different IBEW local
and Southern California Edison (SCE) dated April 2.14
On April 9, the parties convened via conference call. Fairman testified that
District Assistant General Manager Quiroz stated “the District ha[d] to be ready to go
shortly depending on the state of the county.” Quiroz stated “it might be maybe two or
three weeks, that we were getting ready to . . . put[ ] things in place to sequester.” The
District also commented several times during the call that “they reserve[d] the right to
13 (124 x 1 = 124) + (32 x 1.5 = 48) + (12 x 2 = 24) = 196.
14 SCE is a private energy company. The agreement between IBEW and SCE
provided that during sequestration, hours worked and off-duty “Sleep and Rest” hours
would be paid alike at a “Double Time” rate.

20
implement, but they wanted to bargain with [IBEW] to come to an agreement.” During
the meetings that followed as discussed below, the District made similar statements
approximately four or five times. DeVoy stated more than once during these meetings
that the District did not have an obligation to negotiate the sequestration policy prior to
implementation, and Fairman never informed DeVoy that MMBA section 3504.5 or the
District’s invocation of that section was an issue.
Later on April 9, Fairman e-mailed DeVoy IBEW “Counter #1” proposing
additions and deletions to the District’s proposed LOU. In the “Critical Positions”
section, IBEW revised the District’s proposed language as follows:15
“Once the District identifies the need for sequestration,
Management will ask for volunteers for pre-identified critical
positions. If more employees volunteer than are needed,
positions will be filled according to classification seniority. If
an insufficient number of employees volunteer, then the
District may fill shifts with Management employees within
the Department as required to maintain the continuity of
service. If it becomes necessary for a non-represented
employee to perform bargaining unit work, it shall be limited
to only when necessary. In either circumstance, the acting
manager shall notify Human Resources/Labor as soon as
possible but in no more than twenty-four (24) hours. Human
Resources/Labor will make notification to the Union.
Management will designate individuals to fill the vacant
positions by lowest to greatest seniority, with appropriate
qualifications.”16
15 Hereafter, a party’s additions are represented by italics and deletions are
represented by strikethroughs.
16 IBEW Counter #1 also inquired into the number of bargaining unit employees
in each of the job classifications of “[e]mployees required to perform critical functions
at Critical Operations Centers” and thus, per the proposed LOU, subject to
sequestration.

21
In the “Guidelines” section, IBEW Counter #1 added:
“If at any point during their resting-time, a Sequestered
Employee must perform work activities, the Sequestered
Employee will receive pay at double their base pay hourly
rate for all hours worked while on a Resting Shift in addition
to any pay received in accordance with the ‘Compensation’
section of this Agreement.”
Also among these changes were the following additions under “District
Responsibilities”:
“5. 	The District shall provide a family meal delivery
stipend to each employee during their sequestration
in the amount of $100.00 per day of sequestration for
the purchase and delivery of food to the employee’s
home.
“6. 	At the end of the Sequestered Employees 21 day
shift they shall be provided a paid ‘Recovery Time’
off of work for a period of two weeks paid at 80 hours
of the employee’s straight time hourly wage.”
Finally, under the section entitled “Compensation,” IBEW Counter #1 replaced
the chart in the proposed LOU with the following statement: “All hours that a
Sequestered Employee spends on their 12 hour working shifts and 12 hour resting
shifts will be paid at double the employees base pay hourly rate.” Thus, sequestered
employees would receive the equivalent of 336 hours at their regular rate of pay each
week.17
On April 10, DeVoy e-mailed Fairman “District Counter #1,” modifying IBEW
Counter #1, and invited Fairman to a call that day. District Counter #1 accepted in part
and revised in part the IBEW-proposed language under the heading “Critical
17 (7 x 24 = 168) x 2 = 336.

22
Positions” as follows:18
“Once the District identifies the need for sequestration,
Management will ask for volunteers for pre-identified critical
positions. If more employees volunteer than are needed,
positions will be filled according to classification seniority. If
an insufficient number of employees volunteer, then the
District may fill shifts with hourly and[19] Management
employees within the Department as required to maintain
the continuity of service. If it becomes necessary for a non-
represented employee to perform bargaining unit work, it
shall be limited to only when necessary. In either
circumstance, the acting manager shall notify Human
Resources/Labor as soon as possible but in no more than
twenty-four (24) hours. Human Resources/Labor will make
notification to the Union. Management will designate
individuals to fill the vacant positions by lowest to greatest
seniority, with appropriate qualifications.”
As indicated in the quote above, the District accepted IBEW’s insertion of the word
“classification” into the first sentence and its deletion of the last sentence.
District Counter #1 also proposed changes to the IBEW-proposed language
under the headings “Guidelines,” “Employee Responsibilities,” and “District
Responsibilities,” including the following under “Guidelines”:
“If at any point during their resting-time, a Sequestered
Employee must perform work activities, the Sequestered
Employee will receive pay at one and one-half times their
18 The District’s agreements to IBEW-proposed changes were represented by
yellow highlighting, which is replaced hereafter with underlining. The status of
language that was not highlighted or stricken through is unclear, as IBEW proposed
the language, but the District’s formatting did not indicate whether the District
accepted or rejected it.
19 The words “hourly and” were added by the District, although this is not
reflected in the formatting. Hourly employees are bargaining unit employees.

23
base pay hourly rate for all hours worked while on a
Resting Shift in addition to any pay received in accordance
with the “Compensation” section of this Agreement.
Employees will receive payment and not accrue
compensatory time during the sequestration period.”
As indicated in the quote above, the District accepted IBEW’s addition of the first
sentence, but only agreed to one and one-half time pay instead of double time pay,
and proposed to add the last sentence.
In addition, District Counter #1 accepted the IBEW-proposed family meal
delivery stipend of $100.00 per day.
With respect to the IBEW-proposed “Recovery Time,” District Counter #1
instead proposed the following:
“At the end of the Sequestered Employees 21 day shift, the
Employees shall be provided a paid credited with 24 hours
of vacation to be used immediately after the sequestration
period. If the employee does not take the 24 hours of
vacation within the pay-period following the end of their
sequestration period, the employee will forfeit this time.
This time shall not be carried forward. off of work for a
period of two weeks paid at 80 hours of the employee’s
straight time hourly wage.”
Finally, under the heading “Compensation,” District Counter #1 repeated the
District’s original proposal in the proposed LOU (i.e., 40 hours of straight time,
32 hours of one and one-half time, and 12 hours of double time pay for “Productive
Hours” and 84 hours of straight time pay for “Non-productive/Rest Period” hours per
week).20
20 District Counter #1 also identified the number of bargaining unit employees
who would be subject to sequestration, which totaled 29 out of the approximately 900

24
On the same day, April 10, the parties again met via conference call. Later that
day, Fairman e-mailed DeVoy: “[I] am very surprised to see how much language that
we have exchanged we now have consensus on.” Fairman expressed his belief that
there were “only 3 outstanding issues,” namely, (1) “[IBEW’s] opposition to forcing
Employees into sequestration,” (2) “The length of the ‘recovery’ time,” and
(3) “Compensation.” Fairman attached IBEW Counter #2 to his e-mail, which modified
District Counter #1. IBEW Counter #2 accepted the District-proposed language under
“Critical Positions,” with the exception of the words “hourly and,” as well as the
District’s counterproposal that work during a “Rest Shift” would be compensated with
one and one-half time pay instead of double pay. IBEW Counter #2 demanded that the
District-proposed 24 hours of vacation at the end of a sequestered employee’s 21-day
shift be increased to 40 hours. Finally, under the heading “Compensation,” IBEW
Counter #2 repeated IBEW’s original proposal of providing double time pay for all
hours.
Still later that day, DeVoy sent Fairman District Counter #2. That proposal (1)
insisted on the inclusion of the words “hourly and” in the language under “Critical
Positions,” (2) accepted IBEW’s demand that the District-proposed vacation at the end
of a sequestered employee’s 21-day shift be increased to 40 hours, and (3) repeated
the District’s original compensation proposal in the proposed LOU.
On April 11, the parties met again via conference call. Fairman testified that
during this meeting, Quiroz stated that “there was a reduction in revenue because of
District employees represented by IBEW.

25
the COVID-19 pandemic” but did not quantify that reduction.
On April 13, Fairman e-mailed DeVoy IBEW Counter #3 and offered to continue
discussions during the remainder of that day and the next. IBEW Counter #3 proposed
the following regarding “Critical Positions”:
“Once the District identifies the need for sequestration,
Management will ask for volunteers for pre-identified critical
positions. If more employees volunteer than are needed,
positions will be filled according to classification seniority. If
an insufficient number of employees volunteer, then the
District may fill shifts with hourly and Management and/or
salaried[21] employees within the Department as required to
maintain the continuity of service. Understanding that
employees may have circumstances preventing them from
an assignment as challenging as this (i.e. being a single
parent, childcare needs, dependent care, personal medical
constraints, claustrophobia etc.) nobody shall be forced
against their will to sequester against their will. [Sic] If it
becomes necessary for a non-represented employee to
perform bargaining unit work, it shall be limited to only
when necessary.”
IBEW Counter #3 again repeated IBEW’s original proposal that sequestered
employees receive double time pay for all hours.
April 13: IBEW Sends the District an RFI.
In a separate e-mail on April 13, Fairman sent DeVoy an RFI “to properly
understand the effects a ‘sequestration in place’ would have on our IBEW . . .
members employed at the Imperial Irrigation District, and to be able to continue to
negotiate those effects properly and effectively.” IBEW requested the following
information:
“1. Any and all identified protective measures or ‘logistics’
21 Salaried employees are not bargaining unit employees.

26
the [District] will enact to prevent a ‘sequestered
employee’ from coming in contact with a ‘non-
sequestered employee’ working in the same work
location during the 21-day sequestration period . . .
“2. The names, job titles, work locations, and classification
seniority of every [District] employee who has
volunteered to sequester.
“3. Define the positions and number of employee [sic] per
position that will sequester at each site . . .
“4. The name of the facility [the District] is using to test
employees for COVID-19 and a link to their website.
“5. The number of employees at each sequestration
location . . . who will be working their normal shifts while
the sequestered employees will be on site broken down
by classification and job site.
“6. The proposed shift schedule for all of the sequestered
employees and non-sequestered employees for the
duration of the first 21-day sequestration period and
each subsequent event for as long as the District has
forecasted . . .
“7. Photographs of the RVs employees will be sleeping in
and links to the rental company website.
“8. A Map of each location . . . that shows the location of
the sleeping quarters, work locations, and Emergency
Evacuation Plans for employees to follow in the event of
an emergen[c]y while in sequestration . . .
“9. The name of the company the District will use to provide
meal to sequestered employees and a link to their
website.”
IBEW asked the District to provide this information “in an expedited manner.”
The District never responded to IBEW’s April 13 information request nor

27
provided any of the requested information.
April 15: The District Sends Counter #3.
On April 15, DeVoy e-mailed Fairman District Counter #3 and stated his
availability for a call that afternoon.
District Counter #3 responded to IBEW’s latest proposal regarding “Critical
Positions” as follows:
“Once the District identifies the need for sequestration,
Management will ask for volunteers for pre-identified critical
positions. If more employees volunteer than are needed,
positions will be filled according to classification seniority. If
an insufficient number of employees volunteer, then the
District may fill shifts with hourly and Management and/or
salaried employees within the Department as required to
maintain the continuity of service. Understanding that
employees may have circumstances preventing them from
an assignment as challenging as this (i.e. being a single
parent, childcare needs, dependent care, personal medical
constraints, claustrophobia etc.) nobody shall be forced
against their will to sequester against their will. If it
becomes necessary for a non-represented employee to
perform bargaining unit work, it shall be limited to only
when necessary.”
Most significantly, in its third counterproposal the District for the first time changed its
position regarding compensation by eliminating straight time pay for “Productive
Hours.” Specifically, the District now proposed that, for “Productive Hours,”
sequestered employees would receive 12 hours one and one-half time pay on days
one through six and 12 hours of double time pay on day seven. Regarding
“Non-productive/Rest Period” hours, the District proposed as before that sequestered
employees would receive 12 hours of straight time pay on each of the seven days of
the week.

28
Fairman responded to DeVoy that morning, inquiring: “Your counter only talks
about the pay for the first 7 days. Under this proposal what would be the pay for days
7-21?” DeVoy replied later that day, “Each 7-day period is the same.”
April 16: IBEW Sends Counter #4 and a Second RFI.
On April 16, Fairman e-mailed DeVoy IBEW Counter #4. The proposal
regarding “Critical Positions” in the latest counteroffer provided:
“Once the District identifies the need for sequestration,
Management will ask for volunteers for pre-identified critical
positions. If more employees volunteer than are needed,
positions will be filled according to classification seniority. If
an insufficient number of employees volunteer, then the
District may fill shifts with hourly and Management and/or
salaried employees within the Department as required to
maintain the continuity of service. If not enough hourly
and/or salaried employees volunteer then the District and
the Union shall meet and confer immediately with the intent
of exploring every option at our disposal to fill these shifts.
It is neither parties [sic] intent to sequester employees
against their will. If it becomes necessary for a non-
represented employee to perform bargaining unit work, it
shall be limited to only when necessary.”
Compensation remained the only other disagreement between IBEW and the District.
IBEW Counter #4 moved away from demanding double time pay for all hours spent in
sequestration, and instead proposed that for “On Shift Hours” (in lieu of the District’s
“Productive Hours”), sequestered employees would receive 12 hours of straight time
pay on day one, and 12 hours of double time pay on days two through seven.
Regarding “Rest Period” hours (in lieu of the District’s “Non-productive/Rest Period”
hours), IBEW proposed that sequestered employees would receive 4 hours of one and
one-half time pay and 8 hours of double time pay on day one, and 12 hours of double
time pay on all other days.

29
As part of the same April 16 e-mail, Fairman reiterated IBEW’s outstanding
April 13 RFI and propounded a second RFI seeking:
“1. Provisions the [District] plans to follow or enact if they
decide to ‘force’ an employee into sequestration against
their will.
“2. A description of how the [District] would treat an
employee who refuses to ‘sequester’ or ‘shelter in place’
for 21 days for personal, family, or medical reasons.
“3. If an employee is ‘forced’ against their will into
sequestration, what federal law, state law, or local
ordinance does the [District] point to in enacting these
unprecedented measures?
“4. Copies of any and all ‘Sequestration Agreements’ that
any other Utilities . . . have signed that the [District] have
in their possession that have a provision to ‘force’
employees into sequestration if the employer does not
get enough volunteers.
“5. Copies of any and all ‘Sequestration Agreements’ that
any other Utilities . . . have signed that the [District] have
in their possession.
“6. Any historical evidence that the [District] has ever forced
employees to live at work for 21 days in the past 100
years (from 1920-2020).”
As before, IBEW asked the District to provide this information “in an expedited
manner.” As with IBEW’s April 13 RFI, the District never responded to IBEW’s April 16
RFI nor provided the requested information. According to DeVoy, the District failed to
respond to the RFIs because:
“We were buried under just managing through COVID and
the [Emergency Operations Center] was meeting three
times a week. We were really going back and forth with
proposals with IBEW that for me is light speed. And so, we

30
were very busy with trading the proposals back and forth
and then we implemented on the 20th or . . . 25th.
[¶] . . . [¶]
“. . . It was very busy and continued to be very busy actually
through probably January or February of [2021].”
April 17: District Sends Counter #4 and Notice of Implementation; IBEW Sends
Counter #5.
On April 17, DeVoy sent Fairman District Counter #4 and “a letter regarding
implementation.” He told Fairman that he would be available over the weekend to
discuss the matters.
The District’s Counter #4 regarding “Critical Positions” stated:
“Once the District identifies the need for sequestration,
Management will first ask for volunteers for pre-identified
critical positions. If more employees volunteer than are
needed, positions will be filled according to classification
seniority, however, the ultimate determination regarding
staffing of positions will be at the discretion of the District
taking into account the District’s needs.
“If an insufficient number of employees volunteer, then the
District may fill shifts with hourly and Management and/or
salaried employees within the Department as required to
maintain the continuity of service. The District will notify the
union of the District’s need to fill shifts and the District will
commence sequestration of employees until a sufficient
number of employees are scheduled to ensure the
continuity of service. If it becomes necessary for a non-
represented employee to perform bargaining unit work, it
shall be limited to only when necessary.”
During the parties’ meetings prior to District Counter #4, the District never stated that
the ultimate determination regarding staffing of positions should be at the discretion of
the District.

31
The addition to District Counter #4 of the italicized language in the first
paragraph quoted above appears to have resulted from a conversation between
DeVoy and Smelser that took place at an unknown point in time. DeVoy asked
Smelser, “What would work best for systems operations?” Smelser answered, “We
should keep the crews together” because “21 days was going to be a stressful
environment.” Smelser was referring to five existing crews in his area that are “used to
working with each other” and that he felt “would be more familiar and comfortable with
each other to keep them together.” DeVoy confirmed that he had a conversation with
Smelser about staffing by seniority, during which Smelser stated he wanted to keep
his crews together “for efficiency and safety” and that “[t]his seniority thing and
breaking up crews doesn’t work.”
District Counter #4 also reflected a change with respect to compensation. The
District proposed that for “Productive Hours,” sequestered employees would receive
12 hours straight time pay on days one and two, 12 hours of one and one-half time
pay on days three through six, and 12 hours of double time pay on day seven.
Regarding “Non-productive/Rest Period” hours, the District proposed that sequestered
employees would receive 12 hours of straight time pay on day one, 4 hours of straight
time pay and 8 hours of one and one-half time pay on day two, and 12 hours of one
and one-half time pay on days three through seven.
DeVoy attached a “letter regarding implementation” to his April 17 e-mail, which
read:
“The parties have been attempting to reach an agreement
on this Sequestration Policy prior to the District needing to
implement the sequestration of employees pursuant to
Government Code section 3504.5. Due to current
conditions, the District believes the implementation of this

32
policy is imminent. Accordingly, this is likely the last
proposal the District will be able to offer prior to the
emergency implementation of sequestration. If the District
must implement this policy prior to reaching any agreement,
the District will continue to meet with the union regarding
any changes the policy poses to the wages, hours or terms
and conditions of employment.
“Due to the imminent nature of the implementation of this
policy, we remain available to discuss the proposal with the
union at any time.”
Fairman did not believe the District ever indicated that implementation of the
sequestration policy was “imminent” prior to this letter. DeVoy testified that the District
believed implementation was imminent “[b]ecause everything was in place,” i.e., “[t]he
logistics, getting all the RVs in places and permits with the county and electricity . . . to
the RVs and getting all the catering and recreational equipment, everything was in
place.” He added: “We were ready to start testing employees prior to sequestration,
and the general manager was ready to go.”
For his part, Martinez decided to advise IBEW that sequestration was imminent
because he was “looking at the positive rates that we were experiencing in Imperial
County, the number of our own employees . . . testing positive,” and that “[t]he
concern that I had . . . was that some of our critical employees would be impacted and
[that] ultimately at some point [we would] run out of bodies/employees to be able to
sustain the operations for the District.”
Later on April 17, Fairman e-mailed DeVoy:
“Nice letter Dan.
“With the [District] changing the language on the selection
of sequestered employees going away from language we
already agreed upon is regressive bargaining. We agreed

33
[to] offer assignments by classification seniority, now it is
‘. . . seniority, however, the ultimate determination
regarding staffing of positions will be at the discretion
of the District taking into account the District’s needs.’
We have 3 proposals exchanged back and forth with the
classification seniority order language black (signifying
agreement) and now this language appears? On our last
call I made the statement ‘once we have a deal we can go
out and solicit volunteers and if the deal is fair then I am
sure that you won’t have any problems getting volunteers’
and that was not refuted. Whatever the district believes
they need to do with next steps if they exclude the process
we discussed with regards to soliciting volunteers by
classification seniority or in any way retaliates against
anyone for volunteering and then removing their names
from the list we will be forced to take protective measures.
“I also believe that Dan is using the threat of an emergency
as a bargaining strategy which is bad faith. Very bad faith.
“That being said. What you will see in our ‘UNION
COUNTER # 5’ is the most movement that we have made
in this entire process. We agreed to the entire proposed
pay structure for the first 7 days of sequestration (That is
why you will see it in black in our proposal).
“What we do not believe is that after a worker has been
sequestered for 7 days straight, without a day off, that
their 8th day through their 21st day should not be paid at
the same rate that their first days are. We are willing to
make a concession on the sleep time for days 8-21 but the
hours worked should be treated differently for obvious
reasons.
“We have shaved off over 50% of the economic value of our
last proposal.
“We are also still waiting on our information requests.”
(Bold in original.)
DeVoy testified that he was not using the threat of an emergency as a

34
bargaining strategy, as alleged in Fairman’s April 17 e-mail, because “[w]e actually
didn’t have an obligation to bargain before we implemented this.”
IBEW Counter #5 proposed the following regarding “Critical Positions”:
“Once the District identifies the need for sequestration,
Management will ask for volunteers for pre-identified critical
positions. If more employees volunteer than are needed,
positions will be filled according to classification seniority. If
an insufficient number of employees volunteer, then the
District may fill shifts with hourly and Management and/or
salaried employees within the Department as required to
maintain the continuity of service. If not enough hourly
and/or salaried employees volunteer then the District and
the Union shall meet and confer immediately with the intent
of exploring every option at our disposal to fill these shifts.
If it becomes necessary for a non-represented employee to
perform bargaining unit work, it shall be limited to only
when necessary.”
Compensation remained the only other disagreement between the parties. IBEW
Counter #5 proposed that for “On Shift Hours,” sequestered employees would receive
12 hours of straight time pay on days one and two, 12 hours of one and one-half time
pay on days three through six, and 12 hours of double time pay on days seven
through twenty-one. Regarding “Rest Period” hours, IBEW proposed that sequestered
employees would receive 12 hours of straight time pay on day one, 4 hours of straight
time pay and 8 hours of one and one-half time pay on day two, and 12 hours of one
and one-half time pay on days seven through twenty-one.
The District does not dispute that it never responded to IBEW Counter #5.
DeVoy did not schedule another meeting to discuss the proposals because he
believed sequestration was imminent and that the District needed to start testing
employees for COVID-19 beforehand.

35
April 20: The District Abandons Further Negotiations and Implements the
Sequestration Policy.
On the morning of April 20, Fairman e-mailed DeVoy:
“I hope everyone had a good weekend with your loved
ones. I am hearing that the district wants to start
sequestration on Wednesday or Friday. We have sent a
counter on 4/17 and our team is available all day today to
continue discussions. If you would prefer to counter us and
then set up a call please let me know. I believe our recent
counter is a compromise that shows movement, good faith,
and respects the fact that we are in a time crunch.”
Shortly thereafter, DeVoy responded to Fairman: “I’ll be sending you a letter today
from Henry [Martinez] regarding implementation of sequestration.” DeVoy followed up
later that day by e-mailing Fairman: “Please find attached the letter from District
General Manager, Henry Martinez[,] and the Emergency Policy Pursuant to California
Government Code Section 3504.5 Re Sequestration of Critical Employees. Please let
me know of any questions.” Martinez’s letter provided, in relevant part:
“The District has now determined that it must take
immediate steps to secure the delivery of essential and
critical services, such as water and electricity, amidst the
COVID-19 pandemic. As the threat of expansion of COVID-
19 cases continues, these immediate steps include
reducing the risk of critical employees contracting
COVID-19. To achieve this, the District will implement an
emergency policy for sequestration of critical employees
until further notice. This action is taken pursuant to
Government Code section 3504.5 and is consistent with
Resolution No. 11-2020. Sequestration will commence with
the day shift at 6:00 a.m. and the night shift at 6:00 p.m. on
April 25, 2020.
“In summary, the District contemplates that it will be
required to sequester employees for 21-day periods during
which the employee will work a 12-hour shift followed by a

36
12-hour rest time. If sequestering is required beyond the
initial 21-day period, the District will recruit replacement
teams for the additional period and rotate them thereafter.
The District will continuously monitor the need to continue
the sequestration of critical employees in light of current
conditions related to COVID-19. Sequestered employees
will be paid in compliance with applicable law.
[¶] . . . [¶]
“While the District appreciates the considerable time and
effort spent by the Union discussing the terms under which
sequestration would be undertaken, the imminent threat to
the District’s power and water delivery system pre-empts
the desirability of reaching an agreed-upon transition to
sequestration. Pursuant to Government Code section
3504.5, the District will meet and confer with the Union, as
soon as practicable, following implementation of the
sequestration. The terms that will govern the sequestration
of employees are set forth in the attached ‘Emergency
Policy Pursuant To California Government Code Section
3504.5 Re Sequestration Of Critical Employees.’”
Prior to this letter, the District never indicated that it had a target date by which it
wanted to begin sequestration.
In the attached Sequestration Policy, the section entitled “Critical Positions” was
replaced by the following section entitled “Selection of Employees”:
“To best ensure proper staffing of critical positions, prior to
the commencement of each sequestration period, the
District will first ask for volunteers to fill the classifications
identified above.
“If more employees volunteer for any classification than are
needed for the sequestration period, the District will attempt
to select volunteers on the basis of seniority within the
classification. However, consistent with the District’s
management rights, it will retain the discretion to make the
ultimate determination as to staffing of critical positions,

37
taking into account the present circumstances and the
District’s needs. Any employees who volunteered and were
not selected for a sequestration period may receive priority
to be selected for any following sequestration period.
“If an insufficient number of employees volunteer for any
classification than are needed for that sequestration period,
the District will notify the union of the shortage of volunteers
and attempt to fill any shortages as soon as possible.
However, if a shortage of volunteers still exists, the District
will select critical hourly, management and/or salaried
employees for the sequestration period, as required, to
maintain the continuity of service until a sufficient number of
employees are scheduled. If it becomes necessary for a
non-represented employee to perform bargaining unit work,
it shall be limited to only when necessary.”
The remainder of the Sequestration Policy tracked District Counter #4.
The District never responded to IBEW Counter #5 or to Fairman’s April 20
invitation to “continue discussions.” After extending that invitation, IBEW did not again
demand to bargain about sequestration.
The District Sequesters Selected Employees by Department.
Subsequently, the District held three successive 21-day sequestration periods
for affected bargaining unit employees in Energy Balancing and Transmission, all of
which the District staffed with volunteers. By the third round, some of the volunteers
were “duplicates.” During sequestration, employees’ contact with individuals outside of
sequestration was highly restricted.
The District held two rounds of sequestration in Energy Generation; specifically,
two rounds at the Gas Turbine in Niland and none in Hydro Operation. There was no
shortage of volunteers. There were two rounds of sequestration in Water Control and

38
one at Imperial Dam, and the District selected volunteers based on seniority.22
On May 14, DeVoy sent Fairman an e-mail with the subject line “Recovery Time
for Sequestered Employees.” DeVoy advised Fairman that the District was removing
the Sequestration Policy restriction on the 40 hours of post-sequestration vacation
time. The District would now allow employees to bank unused leave time and the
same rules that applied to vacation time would apply to this recovery time. DeVoy did
not raise any other issues in his e-mail and closed by stating, “Please let me know of
any questions.” Fairman did not respond.
There is no evidence that the COVID-19 pandemic caused a financial
emergency for the District, or that the District anticipated that the pandemic would
create one. However, the District experienced unquantified “revenue losses” in missed
payments for electricity by rate payers, as the District suspended disconnections and
collections of late payments during the pandemic. In addition, the minutes of the
June 2 District Board meeting reflect that as of May 22, the “estimated total” of “actual
expenses since the coronavirus began” was $1.93 million. The majority of that amount
was spent on sequestration.23
22 Sequestration started with approximately 30 employees Districtwide.
According to Board minutes, the first round of sequestration involved 32 employees,
the second round involved 28 employees, and the third round involved 10 employees.
Each sequestered employee earned about $30,000 per round of sequestration.
23 It is unknown what portion of these total expenses was due to additional
compensation paid to sequestered employees. Given that sequestration began on
April 25 and approximately 30 employees remained sequestered in the four weeks
through May 22, total compensation paid to sequestered employees would account for
approximately $1.2 million of the total sequestration-related expenses. (30 employees
x 1 ⅓ rounds of sequestration x $30,000 per round of sequestration.) However, it is
unknown how that total compensation compares to the employees’ regular pay that

39
PROCEDURAL BACKGROUND
On October 16, IBEW filed the underlying unfair practice charge against the
District. On December 28, PERB’s Office of General Counsel issued a complaint
alleging that on April 8, the District “invoked” the right to take immediate unilateral
action to implement the Sequestration Policy pursuant to MMBA section 3504.5, and
that on April 20, while meeting and conferring with IBEW about the sequestration
terms, the District made a firm decision to change the status quo by implementing the
Sequestration Policy. The complaint also alleged that the Sequestration Policy
regressed from the District’s prior proposal. Further, the complaint alleged that the
District failed to respond to IBEW’s April 13 and April 16 RFIs. In sum, the complaint
alleged that the District’s aforementioned conduct violated its duty to meet and confer
in good faith with IBEW, interfered with the rights of unit employees to be represented
by IBEW, and denied IBEW the right to represent said employees.
On January 19, 2021, the District filed its answer in which it admitted certain
factual allegations, denied others, and raised several affirmative defenses, including
that its conduct was lawful under MMBA section 3504.5, subdivision (b).
On March 10, 2021, the Office of the General Counsel conducted an informal
settlement conference, but the parties were unable to settle the matter.
The ALJ held a formal hearing on June 29-30 and July 1-2, 2021. After IBEW
and the District filed post-hearing briefs, the ALJ issued a proposed decision on
April 18, 2022, finding that the District failed to bargain in good faith with IBEW by
they would have earned even if they had not been sequestered.

40
unilaterally implementing the Sequestration Policy and failing to respond to IBEW’s
RFIs.24 The District timely filed exceptions and IBEW timely filed cross-exceptions and
a response to the District’s exceptions. The District did not respond to IBEW’s cross-
exceptions.
The District excepts to the ALJ’s conclusions that it unilaterally implemented the
Sequestration Policy and failed to respond to IBEW’s RFIs, and thereby bargained in
bad faith. IBEW excepts to the ALJ’s calculation of hours due to employees during the
sequestration period, as well as to the ALJ’s failure to find that the District’s premature
cutting-off of negotiations on April 20 constituted a per se violation of the duty to
bargain in good faith. We address these exceptions below.
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
Under this standard, we review the entire record and are free to make different factual
findings and reach different legal conclusions than those in the proposed decision.
(City and County of San Francisco (2021) PERB Decision No. 2757-M, p. 8.)
However, the Board need not address issues that the proposed decision has
adequately addressed or that would not impact the outcome. (City of San Ramon
(2018) PERB Decision No. 2571-M, p. 5 (San Ramon).)
Neither party disputes that the COVID-19 pandemic was a bona fide public
24 The ALJ dismissed IBEW’s allegation that the District’s April 8 invocation of
the right to take immediate unilateral action pursuant to section 3504.5 constituted a
per se violation of the duty to meet and negotiate in good faith. IBEW did not except to
this finding, making it final and binding on the parties but otherwise nonprecedential.
(County of Orange (2018) PERB Decision No. 2611-M, p. 2, fn. 2.)

41
health emergency.25 The primary question in this case is whether the public health
emergency, standing alone, privileged the District to unilaterally impose the
Sequestration Policy and compensation rates without first bargaining with IBEW to an
agreement or overall impasse. As our precedent explains, an employer endeavoring to
avail itself of the MMBA’s emergency defense in section 3504.5, subdivision (b) must
meet a high bar: it must not only prove the existence of an actual financial or other
emergency, the employer must also show that the emergency left it with no alternative
to the action taken and allowed insufficient time for meaningful negotiations before
taking action. (Calexico Unified School District (1983) PERB Decision No. 357,
adopting proposed decision at p. 20 (Calexico); Lucia Mar Unified School District
(2001) PERB Decision No. 1440, adopting proposed decision at pp. 46-47.)26 In
25 Pursuant to Evidence Code section 452, subdivision (c), we take permissive
administrative notice of the following as official acts of the executive department of the
State of California (Cabrillo Community College District (2019) PERB Decision
No. 2622, p. 10): (1) the Governor’s March 4, 2020 Proclamation of a State of
Emergency wherein he stated that, as of that date, there were 53 confirmed cases of
COVID-19 in California, more than 9,400 Californians were in home monitoring based
on possible travel-based exposure to the virus, and “officials expect the number of
cases in California, the United States, and worldwide to increase”; and (2) Executive
Order N-33-20, dated March 19, 2020, wherein the Governor noted that “in a short
period of time, COVID-19 has rapidly spread throughout California, necessitating
updated and more stringent guidance from federal, state, and local public health
officials” and ordered all residents to “stay home or at their place of residence except
as needed to maintain continuity of operations of the federal critical infrastructure
sectors.” Additionally, we take permissive administrative notice of the Centers for
Disease Control positive COVID-19 case rates in March 2020. From March 1 through
March 28, 2020, positive rates from public health laboratories and clinical laboratories
in the United States totaled 22,601. (COVIDView: A Weekly Surveillance Summary of
U.S. COVID-19 Activity <https://www.cdc.gov/coronavirus/2019-ncov/covid-
data/covidview/past-reports/04032020.html> [as of May 8, 2023].)
26 PERB recognizes a business necessity defense under all PERB-administered

42
emergencies where immediate adoption of a resolution without meeting and conferring
is necessary, the statute further requires the employer to provide the exclusive
representative “notice and opportunity to meet at the earliest practicable time following
the adoption.” (§ 3504.5, subd. (b).) We first address the parties’ exceptions to the bad
faith bargaining violations, then consider the District’s emergency defense.
I. 	Bad Faith Bargaining – Per Se Violations
In determining whether a party has violated its duty to meet and confer in good
faith, PERB uses a “per se” test or a “totality of conduct” analysis, depending on the
specific conduct involved. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34
(Arcadia).) Per se violations generally involve conduct that violates statutory rights or
procedural bargaining norms. (Id. at pp. 34-35.) Unlike the totality of conduct analysis,
a per se violation requires no inquiry into the respondent’s subjective intent or finding
of bad faith. (Fresno County In-Home Supportive Services Public Authority (2015)
PERB Decision No. 2418-M, p. 15 (Fresno).) The ALJ found that the District
committed two per se violations, both of which the District contests. IBEW also urges
us to find an additional per se violation based on the District’s premature
abandonment of negotiations on April 20.
A. Unilateral Implementation of Sequestration Policy
To establish a prima facie case that a respondent employer made an unlawful
unilateral change, a charging party union that exclusively represents a bargaining unit
must prove: (1) the employer changed or deviated from the status quo; (2) the change
statutes, which serves the same function as the MMBA emergency defense. We
discuss the interchangeability of these defenses in Section III.A, post.

43
or deviation concerned a matter within the scope of representation; (3) the change or
deviation had a generalized effect or continuing impact on represented employees’
terms or conditions of employment; and (4) the employer reached its decision without
first providing adequate advance notice of the proposed change to the union and
bargaining in good faith over the decision, at the union’s request, until the parties
reached an agreement or a lawful impasse. (Bellflower Unified School District (2021)
PERB Decision No. 2796, p. 9 (Bellflower).)
In its exceptions, the District does not dispute that the Sequestration Policy was
within the scope of representation27 and that it had a generalized effect or continuing
impact on terms and conditions of employment. Moreover, the District does not
specifically challenge the ALJ’s finding that it implemented the Sequestration Policy
before reaching an agreement or an overall impasse. Thus, we focus our analysis on
whether the District changed or deviated from the status quo.
There are three primary means of establishing that an employer changed or
deviated from the status quo: (1) a deviation from a written agreement or written
policy; (2) a change in established past practice; or (3) a newly created policy or
application or enforcement of existing policy in a new way. (Bellflower, supra, PERB
Decision No. 2796, p. 10.) Two policy changes are at issue here: changes to
employees’ regular work schedules and compensation.
The District argues the ALJ erred in finding that it changed or deviated from the
status quo by changing employees’ regular work schedules. While the District
27 Nor can there be any dispute that schedule changes fall within the scope of
representation. (State of California (Department of Mental Health) (1990) PERB
Decision No. 840-S, adopting proposed decision at p. 9.)

44
concedes that it changed employees’ regular work schedules under the Sequestration
Policy, it argues that it had the authority to do so pursuant to Policy 4221. We
disagree.
Policy 4221, Section 5.A. states that “[t]he regular work schedule of an
employee may be changed by supervision in response to workload requirements” with
12 hours’ notice. In turn, Section 4.B. defines a workweek as “any seven (7)
consecutive days starting with the same calendar day and time each week.” Section
5.E. provides that there are “four regular work schedules to which employees may be
assigned during the workweek”: a 5/8, 4/10, 9/80, or 6/12 schedule. The District’s
claimed authority to change sequestered employees’ regular work schedules rests on
the term “may” in Sections 5.A. and 5.E. On the one hand, the District argues that the
term “may” in Section 5.A denotes broad permission to change employees’ regular
work schedules at will. It offers a different interpretation of the term “may” in
Section 5.E.; there, the District contends, “may” indicates possibility, such that the
“four regular work schedules” in Section 5.E. should be read as merely suggestive
rather than definitive. In sum, the District asserts that Policy 4221’s lack of an express
limitation on its authority to change employees’ regular schedules vested it with broad,
implied authority to implement any new schedule, provided the change was tied to
workload requirements and that the District provided proper notice.
The District’s suggested interpretation is untenable. It would divest Policy 4221
of any force, rendering the numbering of “four” meaningless and the defined “regular
work schedules” as merely illustrative. Our analysis is supported by the canons of
contract interpretation, including the maxim that we harmonize contract provisions to
give meaning to each provision. (San Francisco County Superior Court & Region 2

45
Court Interpreter Employment Relations Committee (2018) PERB Decision No. 2609-I,
p. 8.)
The District’s interpretation also violates the principle that waiver of statutory
rights must be “clear and unmistakable,” and the evidence must demonstrate an
“intentional relinquishment” of a given right. (Modoc County Office of Education (2019)
PERB Decision No. 2684, p. 11.) To constitute a waiver, the contract language must
“specifically reserve for management the right to take certain action or implement
unilateral changes regarding the issues in dispute.” (Id. at p. 12, internal citations
omitted.) These principles further support the ALJ’s conclusion that Policy 4221, read
as a cohesive whole, allows the District only to change employees’ work schedule to
another of the four enumerated regular schedules in Section 5.E., and not to an
entirely new schedule not contemplated by the policy.
With respect to compensation, the District does not dispute that employees
were paid less pursuant to the Sequestration Policy than they would have been paid
pursuant to Policy 4221. We revisit the specifics of the hours calculations in the
remedy section, post.
Because the District conceded the remaining three elements, we find that IBEW
established a prima facie case of unlawful unilateral change with respect to the
Sequestration Policy.
B. Requests for Information
The District excepts to the ALJ’s finding that it failed or refused meet and confer
in good faith with IBEW by not responding to its April 13 and April 16 RFIs.
An exclusive representative is presumptively entitled to information that is
necessary and relevant in discharging its representational duties or exercising its right

46
to represent bargaining unit employees regarding terms and conditions of employment
within the scope of representation. (Contra Costa Community College District (2019)
PERB Decision No. 2652, pp. 16-17; Petaluma City Elementary School District/Joint
Union High School District (2016) PERB Decision No. 2485, p. 17 (Petaluma).) In this
context, the terms “necessary” and “relevant” do not have separate meanings.
(Petaluma, supra, PERB Decision No. 2485, p. 21.) PERB uses a liberal,
discovery-type standard, like that used by the courts, to determine relevance. (Id. at
p. 17.) A party responding to an information request must exercise the same diligence
and thoroughness as it would in other business affairs of importance. (Sacramento
City Unified School District (2018) PERB Decision No. 2597, pp. 8-9 (Sacramento).)
An unreasonable delay in providing information constitutes as much of a violation as
an outright refusal. (Petaluma, supra, PERB Decision No. 2485, p. 20.)
A responding party’s primary defenses to producing relevant information are
waiver, privacy, undue burden, or an absolute or qualified privilege. (County of
Tulare (2020) PERB Decision No. 2697-M, p. 14, fn. 9 (Tulare); State of California
(Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 13 & 15
(Department of State Hospitals).) A responding party waives any defenses to
disclosure that it fails to raise promptly after receiving a request. (Tulare, supra, PERB
Decision No. 2697-M, p. 14; Department of State Hospitals, supra, PERB Decision
No. 2568-S, p. 16.) Moreover, if an information request requires clarification, is unduly
burdensome, or seeks private information, the responding party is not permitted to
deny the request outright and must instead offer to bargain in good faith regarding an
appropriate accommodation. (Sacramento, supra, PERB Decision No. 2597,
pp. 11-12; Butte-Glenn Community College District (2022) PERB Decision No. 2834,

47
p. 10.)
Here, there is no question that IBEW requested information relevant to
representing unit employees regarding terms and conditions of employment within the
scope of representation. The April 13 RFI requested, among other things, information
relating to protective measures the District would take to ensure the integrity of
sequestration, the number of positions and employees that would be sequestering at
each site, and lodging and food arrangements for sequestered employees. As issues
concerning health and safety, they are within the scope of representation and
therefore presumptively relevant. (County of San Joaquin (2021) PERB Decision
No. 2775-M, p. 41; State of California (Department of Consumer Affairs) (2004) PERB
Decision No. 1711-S, p. 26.)
The same is true of IBEW’s April 16 RFI, which requested information relating
to a potential involuntary sequestration scenario, and specifically, how the District
would handle such circumstances, as well as how it would treat an employee who
refused to sequester. As the ALJ pointed out, discipline is within the scope of
representation “both as to the criteria for discipline and as to the procedures to be
followed.” (County of Monterey (2018) PERB Decision No. 2579-M, pp. 11-12.)
The District has never contested the relevance of IBEW’s requested
information. Rather, the District objects to the ALJ’s characterization of its failure to
respond as a “total abandonment of its obligation to provide necessary and relevant
information to IBEW upon request,” explaining that it was consumed “just managing
through COVID” and the various demands created by the pandemic until at least
January or February 2021. It offers no other basis for its lack of response. Of the
potential defenses available to the District, the only one with possible applicability in

48
these circumstances is undue burden. However, the District waived this defense by
failing to affirmatively and timely assert its concerns to IBEW such that the parties
could bargain over them. We thus affirm the ALJ’s finding that the District failed or
refused to respond to IBEW’s April 13 and April 16 RFIs.
C. Prematurely Cutting Off Negotiations
We evaluate IBEW’s argument that the District’s abandonment of negotiations
on April 20 constituted a per se violation of its duty to meet and confer in good faith,
an issue the ALJ did not consider.
Impasse under the MMBA “exists where the ‘parties have considered each
other’s proposals and counterproposals, attempted to narrow the gap of disagreement
and have, nonetheless, reached a point in their negotiations where continued
discussion would be futile.’” (City of Long Beach (2012) PERB Decision No. 2296-M,
p. 15 [finding the employer implemented its planned furlough despite no evidence that
the parties’ negotiations had reached a point where further negotiations would be futile,
regardless of whether the employer declared impasse].) “An employer may impose new
terms after impasse only if it has bargained in good faith throughout negotiations, from
‘inception through exhaustion of statutory or other applicable impasse resolution
procedures,’ and its ‘conduct is free of unfair labor practices.’” (City of Glendale (2020)
PERB Decision No. 2694-M, p. 60 (Glendale), quoting San Ramon, supra, PERB
Decision No. 2571, p. 6.) A party asserting impasse bears the burden of proving it.
(Glendale, supra, PERB Decision No. 2694-M, p. 61; San Ramon, supra, PERB
Decision No. 2571-M, p. 6.) If there is doubt as to whether an impasse exists, the
party asserting impasse has the burden to seek clarification of the other party’s
position. (County of Merced (2020) PERB Decision No. 2740-M, p. 17 (Merced); City

49
of Salinas (2018) PERB Order No. Ad-457-M, p. 5.)28
An employer that declares impasse without reaching a bona fide impasse after
good faith negotiations, and then refuses to bargain further or proceeds to change
employment terms, commits a per se violation. (City of San Diego (2020) PERB
Decision No. 2747-M, p. 25; San Ramon, supra, PERB Decision No. 2571-M, p. 7,
fn. 9.) In this case, as the ALJ found, the District did not declare impasse, and it would
not have been appropriate for the District to do so given that the parties’ differences
were not “so substantial or prolonged that future meetings would be futile.”29 (City of
Long Beach, supra, PERB Decision No. 2296-M, p. 15.) In the 10 days spanning April
8, when the District sent its first proposal, to April 17, when IBEW sent its fifth
counteroffer, the parties reached agreements on a number of topics including the
classifications and number of employees to be sequestered, an initial staffing selection
process, various employee and District responsibilities, and length of sequestration.
Indeed, by the end of April 10, the parties had already narrowed the issues to two:
IBEW’s opposition to forced sequestration and compensation. The parties had also
substantially narrowed their differences on each of those issues.
While the District did not declare impasse, its April 20 letter was tantamount to an
28 Under the MMBA, only a written impasse declaration triggers a union’s
deadline to seek factfinding. (Merced, supra, PERB Decision No. 2740-M, p. 17,
fn. 12.) Thus, absent a written declaration by either party, it is difficult for an employer
to claim that a union was tardy in requesting factfinding, and by extension it is difficult
for such an employer to assert that it has exhausted its bargaining obligation. (Ibid.)
29 Because the District did not declare impasse, it follows that it did not exhaust
the impasse process in Policy 4227, “Employer-Employee Relations,” which includes
procedures for meeting and conferring with exclusive representatives.

50
impasse declaration in that it indicated the District’s intent to conclude negotiations and
impose its own terms. Even had this letter expressly declared impasse, the District
could not have proven that a bona fide impasse existed as of April 20, as there is
insufficient evidence that further negotiations would have been futile. As in City of
Long Beach, supra, PERB Decision No. 2296-M, pp. 15-16, and San Ramon, supra,
PERB Decision No. 2571-M, adopting proposed decision at pp. 38-39, where the
parties had made considerable movement in negotiations before the employers
abruptly ended bargaining to unilaterally impose terms, here the District was not faced
with a point where continued negotiations would be futile. Far from it. Negotiations
had, in fact, been productive for the nine-day period in which the parties had been
exchanging proposals. By its April 20 letter, the District abandoned any further
negotiations and changed employment terms by implementing the Sequestration
Policy. This conduct not only proves a prima facie case of unilateral change but also a
prima facie case of outright refusal to bargain, a separate per se violation of the duty
to meet and confer in good faith with IBEW.30
II. 	Bad Faith Bargaining – Totality of Circumstances
PERB applies the totality of conduct test to allegations of bad faith bargaining
conduct that do not constitute a per se refusal to bargain. (Arcadia, supra, PERB
Decision No. 2648-M, p. 35.)31 Under the totality test, a party is permitted to maintain
30 Rather than claiming that the parties reached impasse, the District stated in
its April 20 letter to IBEW that it needed to implement the Sequestration Policy
because of “the imminent threat to the District’s power and water delivery system.” In
Section III, post, we evaluate the context of the District’s implementation as part of its
affirmative defense.
31 The phrases “totality of circumstances” and “totality of conduct” are

51
a “hard bargaining” position on one or more issues, if the entire course of its
bargaining conduct, both at the table and away from it, manifests good faith efforts
toward reaching an overall agreement. (San Ramon, supra, PERB Decision No. 2571-
M, pp. 7-8.) The ultimate question is whether the respondent’s conduct, when viewed
in its totality, was sufficiently egregious to frustrate negotiations. (Id. at p. 7.)32
A single indicator of bad faith, if egregious, can be a sufficient basis for finding
that a party has failed to bargain in good faith. (City of San Jose (2013) PERB
Decision No. 2341-M, p. 19 (San Jose).) However, PERB generally considers multiple
factors, including the following potential bad faith indicia: (1) failing to respond to
proposals in a timely manner (State of California (Department of Personnel
Administration) (1989) PERB Decision No. 739-S, pp. 4-5); (2) failing to explain a
bargaining position in sufficient detail or to provide requested information supporting a
bargaining position, without an adequate reason for such failure (City of Davis (2018)
PERB Decision No. 2582-M, pp. 19-20; San Jose, supra, PERB Decision No. 2341-M,
p. 42); (3) regressive bargaining (Tulare, supra, PERB Decision No. 2697-M, pp. 5-7);
(4) reneging on tentative agreements or previously-agreed proposals (Stockton
Unified School District (1980) PERB Decision No. 143, p. 31); (5) maintaining a
interchangeable, and either phrase describes the operative test. (County of
Sacramento (2020) PERB Decision No. 2745-M, p. 9, fn. 8.) While PERB frequently
refers to bad faith bargaining under this test as “surface bargaining,” that label does
not limit the scope of the relevant factors to only those involving superficial bargaining
conduct. (Ibid.)
32 PERB also considers whether the charging party engaged in bad faith
conduct to a degree that mitigates the respondent’s bad faith conduct, if any. (Fresno,
supra, PERB Decision No. 2418-M, p. 52.)

52
take-it-or-leave-it attitude (San Ramon, supra, PERB Decision No. 2571-M, pp. 8-9);
(6) unilaterally setting a time limit on negotiations, rushing to impasse, or prematurely
declaring impasse (Arcadia, supra, PERB Decision No. 2648-M, pp. 37-38; San
Ramon, supra, PERB Decision No. 2571-M, p. 10); and (7) any other conduct that
tends to frustrate negotiations without adequate reason.
Conduct sufficient to amount to one or more separate, contemporaneous unfair
practices also indicates bad faith under the totality test. (San Jose, supra, PERB
Decision No. 2341-M, pp. 21 & 43.) This includes both labor law violations away from
the bargaining table and acts that could amount to a per se violation of the duty to
bargain. (City of Davis, supra, PERB Decision No. 2582-M, pp. 9, 11-13.)
Here, based on indicators the ALJ noted and others we note below, we find that
IBEW proved the District committed not only per se bargaining violations but also
engaged in bad faith bargaining under the totality test. First, the ALJ correctly found that
the District approached negotiations “with an attitude that is incompatible with good faith
bargaining.” On April 8, DeVoy wrote to Fairman, stating: “[O]ver the last two weeks the
District has and will continue to take a number of legislative and administrative actions
to address rapidly changing events brought on by COVID-19. To the extent these
actions constitute a change in the terms and conditions of employment in the District’s
represented bargaining units, the District is invoking the provisions of California
Government Code section 3504.5, which authorizes the District in cases of emergency
to take immediate unilateral action without prior notice or meeting with the recognized
employee organization.” DeVoy further wrote: “The District is requesting to meet with
the Union to discuss the District’s probable need to implement schedule changes for
employees within the unit pursuant to the emergency provisions of Government Code

53
section 3504.5. Despite the District’s ability to impose these terms without prior notice
or meeting, the District would prefer to reach an agreement, if possible, with the Union
prior to needing to implement the action.” Finally, DeVoy stated: “The offer to meet
prior to emergency implementation of a schedule change is not intended to interfere
with the District’s need to implement such a change pursuant to Government Code
section 3504.5 even if the parties cannot reach an agreement prior to implementation.”
The District also commented several times that “they reserve[d] the right to implement,
but they wanted to bargain with [IBEW] to come to an agreement.” During the
meetings that followed, the District made similar statements approximately four or five
times.
These repeated statements ignored the nature of an emergency defense. As
discussed further in Section III, post, even when a sudden emergency resulting from
circumstances beyond an employer’s control leaves it no alternative but to take
immediate action, there remains an obligation to bargain in good faith as time allows.
(Oxnard Union High School District (2022) PERB Decision No. 2803, p. 45 (Oxnard).)
By asserting from the onset of negotiations that it had no obligation to bargain with
IBEW over the Sequestration Policy, and repeating that sentiment, the District
disregarded the above precedent holding that even when an emergency allows
temporary unilateral action, it does not simply extinguish the duty to bargain.
Another bad faith indicator is the District’s reversal of its bargaining position
without any explanation. District Counter #1 accepted IBEW Counter #1’s proposal to
select employees based on classification seniority in the event the District received a
surplus of volunteers. Through multiple subsequent counterproposals by both parties,
the accepted language remained intact. The District then reneged on that agreement

54
in District Counter #4 by adding a conditional statement reserving its own authority to
determine staffing selection: “however, the ultimate determination regarding staffing of
positions will be at the discretion of the District taking into account the District’s
needs.” Moreover, at no point did the District explain its reneged position to IBEW,
thereby depriving IBEW of “sufficient detail to ‘permit the negotiating process to
proceed on the basis of mutual understanding.’” (County of Tulare (2015) PERB
Decision No. 2461-M, adopting proposed decision at p. 9.)
Similarly, we find another indicator of bad faith in the District’s failure to respond
to IBEW Counter #5 in any manner and without any explanation or rationale. (City of
Davis, supra, PERB Decision No. 2582-M, p. 24; Oakland Unified School District
(1981) PERB Decision No. 178, p. 8.) The District admitted at hearing that it neither
scheduled a meeting to discuss IBEW’s proposal nor responded to it.
Lastly, the District’s three per se violations—unilateral implementation of the
Sequestration Policy, failure to respond to IBEW’s two RFIs, and premature
abandonment of negotiations—are separate, contemporaneous unfair practices that
serve as additional indicators of bad faith on the part of the District. (San Jose, supra,
PERB Decision No. 2341-M, p. 21.)
We find, like the ALJ, that the totality of circumstances demonstrates the District
bargained in bad faith with IBEW.
III. The District’s Affirmative Defense
The District asserts that “the growing and imminent threat that the
unprecedented COVID-19 pandemic posed to the District’s ability to maintain critical
operations”—that is, an emergency—absolved it of any duty to meet and confer with
IBEW prior to implementing the Sequestration Policy. MMBA section 3504.5,

55
subdivision (b) provides:
“In cases of emergency when the governing body or the
designated boards and commissions determine that an
ordinance, rule, resolution, or regulation must be adopted
immediately without prior notice or meeting with a
recognized employee organization, the governing body or
the boards and commissions shall provide notice and
opportunity to meet at the earliest practicable time following
the adoption of the ordinance, rule, resolution, or
regulation.”
At the outset, we observe that the District began bargaining before its
emergency implementation. Such level of engagement with IBEW in the face of an
emergency of this magnitude is commendable and a strong management practice.
However, as we proceed to explain, MMBA section 3504.5 allowed the District to
sequester employees temporarily to protect the public, but the District acted far
outside this defense by: (1) altering compensation, which the emergency did not
necessitate; and (2) failing entirely to respond to IBEW Counter #5 and instead
abandoning negotiations altogether.
A. PERB Precedent Regarding the Emergency and Business Necessity Defenses
The MMBA does not define what circumstances constitute an “emergency.” In
Sonoma County Organization etc. Employees v. County of Sonoma (1991)
1 Cal.App.4th 267 (Sonoma), the Court of Appeal found that the term “has long been
accepted in California as an unforeseen situation calling for immediate action.” (Id. at
p. 276.) “[A]n emergency must have a substantial likelihood that serious harm will be
experienced” and “is not synonymous with expediency, convenience, or best
interests.” (Id. at p. 277, internal citations omitted.)
While the statutory emergency defense is unique to the MMBA, the Board has

56
recognized an affirmative defense available under all PERB-administered statutes that
serves the same function. This “business necessity” defense requires the employer to
prove: (1) an actual financial or other emergency that (2) leaves no real alternative to
the action taken and (3) allows no time for meaningful negotiations before taking
action. (Calexico, supra, PERB Decision No. 357, adopting proposed decision at
p. 20; Lucia Mar Unified School District, supra, PERB Decision No. 1440, adopting
proposed decision at pp. 46-47.) In past decisions, the Board has treated the two
defenses as interchangeable by requiring the same elements to establish either
affirmative defense. (See, e.g., Oxnard, supra, PERB Decision No. 2803, pp. 44-45;
accord Santa Clara County Correctional Peace Officers’ Assn., Inc. v. County of Santa
Clara (2014) 224 Cal.App.4th 1016, 1032-1033 (Santa Clara).)
“[N]either exigent circumstances nor a business necessity completely absolves
an employer of its duty to notify and bargain.” (Santa Clara, supra, 224 Cal.App.4th at
p. 1032; accord County of Sonoma (2021) PERB Decision No. 2772-M, p. 50, fn. 25.)
Rather, the employer must bargain “to the extent that the situation permits.” (Santa
Clara, supra, 224 Cal.App.4th at p. 1032.) In a bona fide emergency, the employer
need not await impasse before taking steps urgently needed to mitigate the
emergency, but then the employer must continue bargaining to the extent practicable.
(§ 3504.5, subd. (b).) Because an emergency is not a static event, changes taken in
good faith reliance on a necessity defense should be limited to the timeframe that the
emergency requires, and there remains an obligation to bargain in good faith as time
allows. (Oxnard, supra, PERB Decision No. 2803, p. 45, citing Pittsburg Unified
School District (1983) PERB Decision No. 318, pp. 17 & 20-21 [one aspect of
employer’s unlawful conduct was failure to limit its unilateral change to the period

57
necessitated by the alleged emergency].) For instance, even when a significant
earthquake forced two hospitals to close and “swamped” the only functioning hospital
in West Los Angeles, there was nonetheless time to bargain in good faith over staffing
needs that developed over the ensuing weeks and months, and an employer violated
its bargaining obligation by failing to do so. (Oxnard, supra, PERB Decision No. 2803,
p. 45, citing Regents of the University of California (1998) PERB Decision No. 1255-H,
adopting proposed decision at pp. 8, 35-37.)
In City of Long Beach, supra, PERB Decision No. 2296-M, the city argued that
a fiscal emergency in the form of a $20 million budget shortfall excused it from
bargaining over furlough policies. (Id. at p. 26.) After four months of bargaining over
cost-savings measures, including furloughs, the city claimed “there was simply no
more time available to delay the implementation of the furlough plan” and authorized
implementation of mandatory furloughs. (Id. at p. 27.) The Board, noting that “an
employer’s generalized concerns about its future financial condition does not relieve it
of the obligation to bargain” (id. at p. 26), found the city’s claim of a financial
emergency questionable because (1) the city had determined almost eight months
prior to implementation that furloughs would be necessary, and (2) the city did not
formally declare a fiscal emergency until two months after it unilaterally implemented
its furlough plan. (Id. at p. 27.) Moreover, the Board found that even if the city had
proven the existence of a financial emergency, the city failed to establish that it had no
alternative to unilaterally imposing furloughs rather than completing bargaining. (Id. at
pp. 27-28.) Accordingly, the Board found that the employer did not establish a defense
under the Calexico standard. (Id. at p. 28.)
The Board similarly wove together precedent under the two defenses in County

58
of San Bernardino (Office of the Public Defender) (2015) PERB Decision No. 2423-M
(San Bernardino). There, the union alleged that the county unilaterally changed its
policy concerning the union’s right to designate its own representatives to represent
employees during disciplinary proceedings, as stated in the parties’ MOU. The new
policy effectively limited whom unit members could elect as representatives in such
interviews. The employer asserted that it was excused from bargaining for “legitimate
business reasons” and cited constitutional and ethical concerns with the union’s
selection of representatives. (Id. at p. 54.) The Board considered the employer’s
defense as a hybrid emergency-business necessity claim:
“PERB has recognized that under exceptionally limited
circumstances, an employer may be excused from
negotiating on the basis of true emergency that provides a
basis for claiming that a business necessity excused a
unilateral change. However, to establish ‘operational
necessity’ or ‘business necessity’ as a defense to a
unilateral change, the employer must establish an actual
financial or other emergency that leaves no alternative to
the action taken and allows no time for meaningful
negotiations before taking action. The alleged necessity
must be the unavoidable result of a sudden change in
circumstance beyond the employer’s control.”
(Ibid.) Under this standard, the Board concluded that the employer’s defense failed
because its proffered reasons for the change did not “rise to the required level of an
unforeseen and unavoidable result due to a sudden change in circumstance beyond
the employer’s control.” (Ibid.) The county failed to cite “evidence of any exigent
circumstances that could justify its unilateral action” as it knew at least two years
before it implemented its new policy that the union had appointed deputy district
attorneys to serve as representatives for deputy public defenders in investigatory

59
interviews. (Id. at pp. 54-55.) Consequently, the Board rejected the county’s claim that
it was excused from bargaining by an emergent business necessity.
Similarly, the Court of Appeal recognized the congruity of the business
necessity defense and MMBA emergency exception in Santa Clara, supra, 224
Cal.App.4th 1016. In that case, the parties’ MOU provided for three types of work
schedules, including one called the “12 Plan” consisting of seven 12.25-hour shifts for
a total of 85.75 hours biweekly. (Id. at pp. 1023-1024.) The county, when
subsequently faced with a budget deficit, considered multiple cost-savings measures,
among them reducing the 12 Plan to a total of 80 hours biweekly. (Id. at
pp. 1024-1025.) The parties met and conferred on three occasions over the intended
schedule change but did not reach an agreement before the county implemented the
reduced 12 Plan. The court rejected the county’s business necessity defense,
observing that the county’s ability to engage in several bargaining sessions over a
nearly three-week span undermined its claim that it faced an unforeseen emergency
requiring immediate action. (Id. at pp. 1032-1033.) Under these circumstances, the
court found that the county did not “establish a financial emergency or business
necessity that would temporarily suspend the obligation to meet and confer before
implementing a change . . . the circumstances here were more in the nature of
foreseeable budget cuts than a temporary emergency requiring an immediate
response.” (Id. at p. 1033.)
In sum, an emergency defense is available under MMBA section 3504.5 and
under all other statutes within PERB’s jurisdiction through the business necessity
defense.

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B. Application of the MMBA Emergency Defense
As explained ante, the District had the burden to establish: (1) an actual
financial or other emergency that (2) leaves no real alternative to the action taken and
(3) allows no time for meaningful negotiations before taking action. (Calexico, supra,
PERB Decision No. 357, adopting proposed decision at p. 20; Lucia Mar Unified
School District, supra, PERB Decision No. 1440, adopting proposed decision at
pp. 46-47.)
The District argues that the business necessity defense “only applies to
financial emergencies, not emergencies that threaten health and safety,” whereas the
statutory emergency defense, the District claims, applies to health or safety
emergencies. We have already disposed of this argument based on our explanation of
the interchangeability of the emergency and business necessity defenses, ante.
Indeed, the District’s argument would imply—mistakenly—that a health or safety
emergency has no import under most of the statutes we enforce, since they lack any
provision comparable to section 3504.5. Moreover, while the District bases its
argument on Sonoma, supra, 1 Cal.App.4th 267,33 that decision does not stand for the
proposition that section 3504.5, subdivision (b) applies only to public health and safety
issues.34
33 It is axiomatic that cases are not authority for propositions not considered.
(County of Orange (2019) PERB Decision No. 2657-M, p. 15.)
34 In Sonoma, supra, 1 Cal.App.4th 267, the county was faced with “a series of
unpredictable rolling sickouts and strikes” by employees who were dissatisfied with the
progress of contract negotiations. (Id. at p. 260.) According to the county, the rolling
job actions significantly impaired the function of certain affected departments, in turn
jeopardizing the continuity of public services. To address this issue, the county’s board

61
Here, there was certainly an emergency. The COVID-19 pandemic was nascent
in the United States and rapidly developing. The District’s provision of electricity and
water to residents of Imperial Valley was at risk of disruption. (Oxnard, supra, PERB
Decision No. 2803, p. 45 [onset of COVID-19 pandemic presented an emergency that
temporarily curtailed the employer’s bargaining obligations, allowing it to require
employees to telework “provided it bargained in good faith as time allowed”].)
of supervisors adopted an emergency ordinance, effective immediately, that vested
department heads with the authority to place employees participating in an
“intermittent work stoppage” on “administrative unpaid absence.” (Id. at p. 272.) The
county board declared that the ordinance was necessary “to protect the public health
and safety” and “to prevent the substantial impairment of County departmental
operations.” (Ibid.) After the adoption of the ordinance, the county offered to “meet and
confer” with the union, which declined and instead filed a writ of mandate. The union
alleged that the ordinance and actions taken pursuant to it were invalid because the
county failed to meet and confer with the union prior to adoption of the ordinance.
(Id. at p. 273.) The trial court agreed that no emergency existed at the time the county
adopted the ordinance and issued a writ.
The Court of Appeal reversed. It framed the issue as “whether the County’s
noncompliance was excused by an emergency as expressly contemplated by the
MMBA.” (Sonoma, supra, 1 Cal.App.4th at p. 274.) In response, the appellate court
found ample evidence of an “emergency warranting immediate adoption” of the
ordinance, including the fact that the sickouts occurred in random departments,
leaving the county unable to adequately substitute personnel and maintain public
services. (Id. at pp. 277-278.) The appellate court concluded, “[v]iewing these manifold
consequences, the County was amply justified in concluding that it confronted an
‘emergency of grave character and serious moment’ demanding immediate action.”
(Id. at p. 279, internal citation omitted.)
Contrary to the District’s argument, the Sonoma court “emphasized the peril to
public health as the most obvious factor justifying the County’s determination that
there was a ‘substantial likelihood that serious harm [would] be experienced’ if it took
no action. But the fact that [the union’s] ‘sickouts’ had adverse consequences in other
areas can only have added to the County’s concern.” (Sonoma, supra, 1 Cal.App.4th
at p. 279, italics added.)

62
While the pandemic permitted the District to sequester employees before it
completed negotiations, the District failed to demonstrate that the emergency left it
with no real alternative to altering the compensation framework before completing
negotiations. The ALJ correctly found that the District never declared or faced an
actual financial emergency, and the District does not dispute this finding. We agree
with the ALJ that while the COVID-19 pandemic may have left the District with no
alternative to sequestering employees who were in critical positions, the District did
not prove it had no alternative to cutting off negotiations and unilaterally altering the
pay scheme. Indeed, the record reveals other public and private sector employers
similar to the District that agreed to pay double time for all sequestered hours, or
otherwise reached agreement.
Despite the District’s failure to establish the second prong of the emergency
defense, we consider the third prong as prospective guidance for parties. We
conclude that the circumstances here allowed very limited time before taking action to
sequester employees, but imposed no rapid deadline on bargaining over
compensation. The District was acting swiftly to procure the necessary items to
sequester its employees while negotiating with IBEW. The District imposed the
Sequestration Policy on April 20 because, by DeVoy’s account, “everything was in
place,” i.e., the logistics, including permitting, housing, and catering. DeVoy stated,
“We were ready to start testing employees prior to sequestration, and the general
manager was ready to go.” General Manager Martinez testified that the District
implemented when it did because the positive rates for COVID-19 were climbing and
he was concerned that “some of our critical employees would be impacted.” Unlike the
ALJ, we find these accounts to be mutually reinforcing rather than contradictory. The

63
District decided that implementation was necessary both because the increasing
COVID-19 cases could jeopardize the health and availability of critical employees
needed to sustain District operations, and because the District had the means to
shelter its employees onsite starting April 25.
The District has therefore not established that it was excused from bargaining
compensation under section 3504.5, subdivision (b), because it did not prove the
second and third prongs of the defense. Moreover, even had it done so, the defense
still requires an employer to meet and confer at the earliest practicable opportunity
following implementation (§ 3504.5, subd. (b)), yet the District abandoned negotiations
altogether contemporaneously with its implementation. Such negotiations could also
have addressed how to exit the policies implemented in the face of a real but
temporary emergency.
In its exceptions, the District claims it was under no further obligation to bargain
after implementation because IBEW did not request to continue bargaining after the
District began sequestration on April 25. We disagree. While the MMBA allowed for
emergency implementation of sequestration under the existing compensation scheme,
it required negotiations to continue as soon as practicable thereafter. When the District
implemented sequestration, IBEW Counter #5 was still outstanding. Therefore, it was
incumbent on the District to respond once time allowed.35
35 The District notes that IBEW failed to request bargaining after DeVoy sent
Fairman notice on May 14 that the District would be removing the Sequestration Policy
restriction on usage of the 40 hours of post-sequestration vacation time, thereby
allowing employees to bank unused time. While there is no complaint allegation
relevant to that change, and we find no violation, the District’s argument does not help
it with respect to the complaint’s actual allegations. DeVoy’s e-mail did not refer to the

64
For the foregoing reasons, the District did not establish an emergency defense.
IV. Remedy
The proper remedy for an employer’s unlawful unilateral change normally
includes a cease-and-desist order, restoring the status quo ante,36 a bargaining order,
and make-whole relief including back pay and/or compensatory time off, benefits, and
interest. (Pittsburg Unified School District (2022) PERB Decision No. 2833, p. 14; City
of Pasadena (2014) PERB Order No. Ad-406-M, pp. 12-15.) We order these remedies
here, as we discuss in detail below, where we also identify issues that may be relevant
in compliance.
Both parties challenge the ALJ’s calculations regarding the total number of
hours to which employees are owed. The ALJ found that an employee with a regular
work schedule of five 8-hour days per week (5/8 schedule) who was required to work
seven 24-hour days, each comprised of 12 productive hours and 12
non-productive/rest hours, would have been entitled to compensation equivalent to
282 hours per workweek under Policy 4221. While IBEW’s exceptions state that the
parties’ negotiations or indicate that the District was ready to resume those
negotiations. We find no reason to consider DeVoy’s letter an invitation to resume
bargaining, nor did it put the onus on the union to create another offer in response to
the District’s fait accompli. (County of Santa Clara (2013) PERB Decision No. 2321-M,
p. 24 [once an employer takes unilateral action on a matter within the scope of
bargaining, the union is excused from demanding to bargain over that fait accompli].)
36 An order to rescind the Sequestration Policy is proper, first, based on the
violations found above. Moreover, even had the District followed the law, an
emergency is not a static event, and the short-term pandemic emergency has
subsided. At such point, an employer can no longer rely on a policy it had unilaterally
implemented prior to reaching a bona fide impasse following good faith negotiations.
(See Oxnard, supra, PERB Decision No. 2803, p. 45.)

65
District paid employees the equivalent of 238 hours’ pay for each workweek under the
Sequestration Policy, and the District has not contradicted that point so far, the parties
are free to introduce contrary evidence in compliance.
The District argues that the correct starting point for calculating compensation is
not a 5/8 schedule, but a 12/80 schedule, i.e., six 12-hour days and one 8-hour day
per 80-hour pay period. Based on the District’s calculations, each affected employee
is therefore entitled to only 274 hours’ pay for each week in sequestration. Although
the District did not explain its calculations, this sum appears consistent with applying
Policy 4221’s Sample Overtime Chart as described on pages 8 and 9 of this decision
to a 12/80 schedule.
We conclude that the District’s briefing operates as a waiver, albeit one limited
in scope. Accordingly, we find it appropriate to order the District to compensate each
affected employee for at least 274 hours for each week in sequestration, less any
hours equivalent it already paid to employees during their sequestration period(s). Our
reasons for doing so are multiple. First, in its only exception related to the ALJ’s
proposed remedy, the District summarily agreed that 274 hours’ pay per sequestration
week is appropriate if the Board finds a bargaining obligation. The District thereby
waived any argument that our remedial order should mandate payment for less than
274 weekly hours. (PERB Reg. 32300, subd. (e); Pasadena, supra, PERB Order
No. Ad-406-M, p. 14 [a defense not raised will be deemed waived].) The District
compounded this waiver when it failed to file a response to IBEW’s cross-exceptions
or a reply to IBEW’s response. (PERB Regs. 32310, subd. (a); 32312, subd. (a).) In
compliance, therefore, the District may not introduce evidence in support of liability for
less than the 274 hours per week ordered herein. (Bellflower Unified School District

66
(2019) PERB Order No. Ad-475, p. 13.)
For its part, IBEW argues that we go further and find that all 21 days in
sequestration, or 504 hours, were “hours worked” under the FLSA, 29 U.S.C. § 203 et
seq.37 IBEW’s position is that because sequestered employees “were never relieved of
duty” over the sequestration period, the “Continuous Overtime” provision in
Policy 4221 applied. Under that provision, employees are entitled to one and one-half
times the regular pay rate for the first four hours worked after the end of their regular
schedule, and double time for any additional overtime hours thereafter. Thus, by
IBEW’s estimation, each employee is entitled under Policy 4221 to 331 ⅓ hours at
their regular rate of pay for each week in sequestration.
We cannot agree with IBEW’s reading of the FLSA and Policy 4221. IBEW’s
argument that each 21-day sequestration period constituted a single shift is
incompatible with the reality that the District relieved employees of duty every
12 hours of each day they were in sequestration. Neither party presented us with
significant briefing or record evidence on these points, but parts of IBEW’s own
proposals tend to undercut its position. Beginning with IBEW Counter #1, IBEW
proposed the following language: “If at any point during their resting-time, a
Sequestered Employee must perform work activities, the Sequestered Employee will
37 FLSA provides that a non-exempt employee “must be compensated for all
hours worked,” which includes “[a]ll time during which an employee is required to be
on duty or to be on the employer’s premises or at a prescribed workplace” and “all
time during which an employee is suffered or permitted to work whether or not he is
required to do so.” (29 C.F.R. § 778.223, subd. (a).) “Thus, working time is not limited
to the hours spent in active productive labor, but includes time given by the employee
to the employer even though part of the time may be spent in idleness.” (29 C.F.R.
§ 778.223, subd. (b).)

67
receive pay at double their base pay hourly rate for all hours worked while on a
Resting Shift in addition to any pay received in accordance with the ‘Compensation’
section of this Agreement.” In District Counter #2, the District accepted all the
aforementioned language except the compensation rate, changing it to one and one-
half times the regular pay rate. The District also added that employees would receive
payment for such work rather than accrue compensatory time. IBEW accepted these
proposals in IBEW Counter #2. Thus, IBEW acknowledged that the 12 hours of non-
productive/rest time were distinct from potential “hours worked” during that period.
Moreover, DeVoy testified that he was not aware of any sequestered employee
working in excess of the 12-hour daily schedule during the sequestration period, but
“[t]here may have been one or two occasions or a very small number of occasions
where somebody may have been called in to fill in during their rest time.” In those
instances, DeVoy stated that the District paid employees for one and one-half times
the regular pay rate for “hours actually worked,” in addition to the one and one-half
time the regular pay rate employees were being paid for their rest time. We therefore
reject IBEW’s exception. Even so, we reiterate that the District has ceded any ability to
argue that 238 hours per week was the appropriate measure of compensation.
In sum, we order the District to compensate each affected employee for at least
274 hours for each week in sequestration, less any hours equivalent it already paid to
employees during the sequestration period(s). The parties may negotiate over the
nature and amount of backpay and/or compensatory time off to provide sequestered
employees the most appropriate remedy for their individual situation. (Corning Union
High School District (1984) PERB Decision No. 399, p. 10.) In compliance
proceedings, the hearing officer shall allow the parties to introduce relevant evidence

68
respecting any of the following: which of the four regular work schedules each affected
employee worked prior to sequestration; the actual amount of compensation and
hours equivalent each affected employee was paid for each week in sequestration; the
amount of backpay and/or compensatory time off each employee is entitled to receive
in accordance with Policy 4221 based upon the hours they were regularly scheduled
to work and application of the Sample Overtime Chart as described on pages 8 and 9
of this decision, to the extent greater than 274 hours per week for any individual
employee. The parties may also introduce evidence as to whether employees in
water-related classifications receive overtime pay for work beyond their regular work
schedule and, if so, the amount of compensation they are due.
ORDER
Upon the foregoing factual findings and legal analysis, and the entire record in
the case, the Public Employment Relations Board (PERB) finds that the Imperial
Irrigation District (District) violated the Meyers-Milias-Brown Act (MMBA), Government
Code section 3506.5, subdivision (c), when it failed and refused to meet and confer in
good faith with the International Brotherhood of Electrical Workers Local 465 (IBEW)
and failed to respond to two information requests from IBEW. By this conduct, the
District also derivatively violated section 3506.5, subdivisions (a) and (b).
Pursuant to Government Code section 3509, we hereby ORDER that the
District, its governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with IBEW.
2. 	Interfering with the rights of bargaining unit employees to be
represented by IBEW.

69
3. 	Denying IBEW its right to represent bargaining unit employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE
POLICIES OF THE MMBA:
1. 	After this decision is no longer subject to appeal, within 30 days of
a request from IBEW, supply all outstanding information responsive to IBEW’s April 13
and April 16 information requests.
2. 	Within 10 workdays after this decision is no longer subject to
appeal, rescind the Sequestration Policy.
3. 	Make affected employees whole, including but not limited to
paying them back pay and/or compensatory time off equal to the amount of overtime
pay they lost as a result of the implementation of the Sequestration Policy, plus seven
percent interest.
4. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all District locations where notices to employees in IBEW’s bargaining
unit are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the District, indicating that the District will comply
with the terms of this Order. Such posting shall remain in place for a period of 30
consecutive workdays. The District shall take reasonable steps to ensure that the
Notice is not altered, defaced, or covered with any other material. In addition to
physically posting this Notice, the District shall post it by electronic message, intranet,
internet site, and other electronic means the District uses to communicate with
employees in the bargaining unit represented by IBEW.38.
38 Either party may ask PERB’s Office of the General Counsel (OGC) to alter or

70
5. 	Notify OGC of the actions the District has taken to follow this
Order by providing written reports as directed by OGC and concurrently serving such
reports on IBEW.
Member Paulson joined in this Decision.
Member Krantz’s concurrence begins on page 71.
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC
shall solicit input from all parties and, if warranted, provide amended instructions to
ensure adequate notice.

71
KRANTZ, Member, concurring: I agree with the majority’s liability findings. I also
agree with the majority on the proper non-monetary remedies. As to monetary relief, I
agree that the District’s exceptions constitute a partial waiver. Specifically, the District
wrote as follows:
“Exception is taken to the ALJ’s finding, at page 60 of the
proposed decision, that an employee with a regular work
schedule of five 8-hour days per week would be entitled to
compensation equivalent to 282 hours at his or her regular
rate for each week in sequestration under Policy 4221.
“This finding is excepted to because it mistakenly assumes
that employees subject to sequestration worked a five 8-
hour day schedule. In reality, the subject employees
worked a 12-hour shift under Policy 4221. Therefore, an
employee with a regular work schedule of six 12-hour days
and one 8-hour day per 80-hour pay period would be
entitled to compensation equivalent to 274 hours at his or
her regular rate for each week in sequestration under Policy
4221.”
Because I do not discern a basis for employees to be owed more than stated in
the above concession, I believe it would have been proper to simply direct the
compliance officer to: (1) award 274 hours of weekly pay to sequestered employees
who had worked a 12/80 schedule prior to sequestration or whom the District could
lawfully have moved to a 12/80 schedule at the start of sequestration; and (2)
otherwise award employees 282 hours of weekly pay. Under any scenario, I agree
with the majority that the compliance officer must offset the actual amount of pay
employees earned for each sequestration week and must award seven percent annual
interest.

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. LA-CE-1482-M, International
Brotherhood of Electrical Workers Local 465 v. Imperial Irrigation District, in which all
parties had the right to participate, the Public Employment Relations Board (PERB)
has found that the Imperial Irrigation District (District) violated the Meyers-Milias-
Brown Act (MMBA), Government Code section 3506.5, subdivision (c), when it failed
and refused to meet and confer in good faith with the International Brotherhood of
Electrical Workers Local 465 (IBEW) and failed to respond to two information requests
from IBEW. By this conduct, the District also derivatively violated section 3506.5,
subdivisions (a) and (b).
As a result of this conduct, PERB has ordered us to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer in good faith with IBEW.
2. 	Interfering with the rights of bargaining unit employees to be
represented by IBEW.
3. 	Denying IBEW its right to represent bargaining unit employees.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	After this decision is no longer subject to appeal, within 30 days of
a request from IBEW, supply all outstanding information responsive to IBEW’s April 13
and April 16 information requests.
2. 	Within 10 workdays after this decision is no longer subject to
appeal, rescind the Sequestration Policy.
3. 	Make affected employees whole, including but not limited to
paying them back pay and/or compensatory time off equal to the amount of overtime
pay they lost as a result of the implementation of the Sequestration Policy, plus seven
percent interest.
Dated: _____________________ 	Imperial Irrigation District

2
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.