City of Pasadena (PERB A406M)

OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PASADENA MANAGEMENT ASSOCIATION,
Charging Party,
v .
CITY OF PASADENA,
Respondent.
V.
	Administrative Appeal
CITY OF PASADENA, 	PERB Order No. Ad-406-M
Respondent. 	January 28, 2014
Case No. LA-CE-574-M
Administrative Appeal
PERB Order No. Ad-406-M
January 28, 2014
Jeffrey
W.
Natke, Attorney, for Pasadena Management Association; Liebert
Cassidy Whitmore by Bruce
A.
Barsook and Jennifer M. Rosner, Attorneys, for City
of
Pasadena.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the City
of
Pasadena (City) to the attached decision (Decision)
of
a
PERB Board agent. The Decision determined that the City has not complied with the Board's
previous order, in City
of
Pasadena (2011) PERB Decision No. HO-U-1023-M, for the City to
compensate its underground crew supervisors with back pay and interest for financial losses
suffered as a result
of
an on-call rotation schedule, which the City unilaterally implemented, in
violation
of
the Meyers-Milias-Brown Act (MMBA or Act), Government Code sections 3503,
3505 and 3506.
The City now advances several arguments as to why the underground supervisors
affected by the on-call rotation schedule incurred no financial losses, and thus why no amount
of back pay is appropriate. The Pasadena Management Association (PMA) is the exclusive
The MMBA is codified at Government Code sections 3500 et seq.
PASADENA MANAGEMENT ASSOCIATION,
Charging Party, 	Case No. LA-CE-574-M
Appearances:	Appearances: Jeffrey W. Natke, Attorney, for Pasadena Management Association; Liebert
Cassidy Whitmore by Bruce A. Barsook and Jennifer M. Rosner, Attorneys, for City of
Pasadena.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the City of Pasadena (City) to the attached decision (Decision) of a
PERB Board agent. The Decision determined that the City has not complied with the Board's
previous order, in City of Pasadena (2011) PERB Decision No. HO-U-1023-M, for the City to
compensate its underground crew supervisors with back pay and interest for financial losses
suffered as a result of an on-call rotation schedule, which the City unilaterally implemented, in
violation of the Meyers-Milias-Brown Act (MMBA or Act), Government Code sections 3503,
3505 and 3506.1
The City now advances several arguments as to why the underground supervisors
affected by the on-call rotation schedule incurred no financial losses, and thus why no amount
of back pay is appropriate. The Pasadena Management Association (PMA) is the exclusive
1
The MMBA is codified at Government Code sections 3500 et seq.

of
the underground supervisors and was the charging party in the underlying
unfair practice proceedings. PMA disputes each
of
the City's arguments and proposes three
alternative formulas for determining the appropriate amount
of
back pay. PMA also argues
that the City's brief in opposition to the Decision was untimely filed and should therefore not
be considered.
representative
unfair practice proceedings. PMA disputes each of the City's arguments and proposes three
alternative formulas for determining the appropriate amount of back pay. PMA also argues
that the City's brief in opposition to the Decision was untimely filed and should therefore not
We hold that the City's brief was not a "statement
of
exceptions" subject to the 20-day
time limit prescribed by PERB Regulations 32980, subdivision (c), and 32300, but an appeal
of
an administrative decision, subject to the 10-day timeline prescribed by PERB
Regulations 32350 and 23260.
We hold that the City's brief was not a "statement of exceptions" subject to the 20-day
time limit prescribed by PERB Regulations 32980, subdivision (c), and 32300, but an appeal
of an administrative decision, subject to the 10-day timeline prescribed by PERB
Regulations 32350 and 23260." Nevertheless, under the circumstances of this case, we find
2 Nevertheless, under the circumstances
of
this case, we find
good cause to excuse the City's untimely-filed brief. We agree, however, with PMA that
several of the arguments included in the City's brief are either time-barred or, more precisely,
precluded from consideration at this stage
of
the proceedings because the City did not
previously except to the findings
of
fact and conclusions
of
law included in City
of
Pasadena,
supra, PERB Decision No. HO-U-1023-M. To the extent we consider the arguments raised by
the City's brief, we find no merit in them and adopt the back pay computation method used in
the Decision, subject to the following discussion.
good cause to excuse the City's untimely-filed brief. 	We agree, however, with PMA that
several
of
the arguments included in the City's brief are either time-barred or, more precisely,
PROCEDURAL HISTORY
On November 9, 2009, PMA filed the underlying unfair practice charge in this case.
On December
1,
2010, PERB's Office
of
the General Counsel issued a complaint, which
alleged that, on or about September 2, 2009, the City had unilaterally changed its policy for
contacting and assigning underground supervisors during off-duty hours to respond to
emergencies involving underground power lines. The essence of the policy change, as alleged
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
of the underground supervisors and was the charging party in the underlying
be considered.
precluded from consideration at this stage of the proceedings because the City did not
previously except to the findings of fact and conclusions of law included in City of Pasadena,
supra, PERB Decision No. HO-U-1023-M. To the extent we consider the arguments raised by
the City's brief, we find no merit in them and adopt the back pay computation method used in
the Decision, subject to the following discussion.
PROCEDURAL HISTORY
On November 9, 2009, PMA filed the underlying unfair practice charge in this case.
On December 1, 2010, PERB's Office of the General Counsel issued a complaint, which
alleged that, on or about September 2, 2009, the City had unilaterally changed its policy for
contacting and assigning underground supervisors during off-duty hours to respond to
emergencies involving underground power lines. The essence of the policy change, as alleged
2
PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
N

the complaint, was that the City eliminated its roster call-out procedure, whereby a
dispatcher would attempt to contact each underground supervisor on the roster until one
of
the
qualified employees was able and willing to respond to an emergency, and in its place
implemented a stand-by call-out procedure (also referred to as an "on-call rotation schedule"),
whereby underground supervisors were individually assigned to respond to emergencies
occurring during a designated time frame.
After a two-day hearing, a PERB administrative law judge (ALJ) issued a proposed
decision on October 27, 2011, which concluded that, by replacing the roster call-out procedure
with the on-call rotation schedule, the City had unilaterally altered its policy for contacting and
assigning underground supervisors to respond to emergencies occurring during their off-duty
hours, in violation
of
the MMBA. The ALJ specifically found that no employees were
disciplined under the pre·vious roster system, even
\Vhen
they failed to return telephone
messages requesting that they respond to an emergency. Under the roster call-out procedure
when an underground supervisor failed to respond to a call, the dispatcher simply moved to the
next individual on the City's roster
of
qualified employees, and continued to do so, until an
underground supervisor responded who was able and willing to respond to the emergency.
By contrast, the ALJ noted that a September 2, 2009 memo announcing the newly-
implemented stand-by call out schedule informed employees that participation in the stand-by
rotation schedule was "mandatory," and that, "[f]ailure to respond to an outage as directed is
considered dereliction
of
duty and insubordination." While the stand-by call-out schedule
included no "fixed" or specified time period in which underground supervisors were required
to respond to an emergency call, the ALJ found that they were, nonetheless, required to
respond and could face disciplinary action
if
they failed to do so.
3
in the complaint, was that the City eliminated its roster call-out procedure, whereby a
dispatcher would attempt to contact each underground supervisor on the roster until one of the
qualified employees was able and willing to respond to an emergency, and in its place
implemented a stand-by call-out procedure (also referred to as an "on-call rotation schedule"),
whereby underground supervisors were individually assigned to respond to emergencies
occurring during a designated time frame.
After a two-day hearing, a PERB administrative law judge (ALJ) issued a proposed
decision on October 27, 2011, which concluded that, by replacing the roster call-out procedure
with the on-call rotation schedule, the City had unilaterally altered its policy for contacting and
assigning underground supervisors to respond to emergencies occurring during their off-duty
hours, in violation of the MMBA. The ALJ specifically found that no employees were
disciplined under the previous roster system, even when they failed to return telephone
messages requesting that they respond to an emergency. Under the roster call-out procedure
when an underground supervisor failed to respond to a call, the dispatcher simply moved to the
next individual on the City's roster of qualified employees, and continued to do so, until an
underground supervisor responded who was able and willing to respond to the emergency.
By contrast, the ALJ noted that a September 2, 2009 memo announcing the newly-
implemented stand-by call out schedule informed employees that participation in the stand-by
rotation schedule was "mandatory," and that, "[flailure to respond to an outage as directed is
considered dereliction of duty and insubordination." While the stand-by call-out schedule
included no "fixed" or specified time period in which underground supervisors were required
to respond to an emergency call, the ALJ found that they were, nonetheless, required to
respond and could face disciplinary action if they failed to do so.
w

the ALJ found that, whereas under the previous roster system, "no single
employee was responsible for answering and responding to a specific call from the City
dispatcher," under the newly-implemented stand-by rotation schedule, "one unit member at a
time was primarily responsible for responding to all after-hours calls." The ALJ concluded
that this additional element
of
individual accountability for employees assigned to the on-call
rotation "fundamentally altered the process for distributing after-hours assignments," and that
the effect
of
this change on unit members constituted a "significant and adverse change to
working conditions."
In its post-hearing brief, the City asserted that underground supervisors were already
required, as part
of
their existing job duties, to respond to emergencies whenever necessary,
including during their off-duty hours. However, the ALJ specifically considered and rejected
this argument. He reasoned that the policy change at issue in this case affected how the City
notified and assigned off-duty employees to respond to emergencies, not whether underground
supervisors were assigned new or additional job duties. The ALJ observed that, "although unit
members in the Underground division were expected to respond to after-hours power outages,"
under the previous roster call-out procedures, "no single employee was responsible for
answering and responding to a specific all from the City dispatcher." Consequently, "unit
members in the Underground division occasionally did not report for duty even after receiving
a call," yet "[n]one
of
these employees were disciplined." By contrast, under the standby
rotation schedule, "one unit member at a time was primarily responsible for responding to all
after-hours calls" and, by the City's own admission, an employee's "failure to respond to an
outage as directed" would be "considered dereliction of duty and insubordination."
The ALJ's proposed decision included a remedial order which, among other things,
required the City to make whole the affected underground supervisors by compensating them
4
Additionally, the ALJ found that, whereas under the previous roster system, "no single
employee was responsible for answering and responding to a specific call from the City
dispatcher," under the newly-implemented stand-by rotation schedule, "one unit member at a
time was primarily responsible for responding to all after-hours calls." The ALJ concluded
that this additional element of individual accountability for employees assigned to the on-call
rotation "fundamentally altered the process for distributing after-hours assignments," and that
the effect of this change on unit members constituted a "significant and adverse change to
working conditions."
In its post-hearing brief, the City asserted that underground supervisors were already
required, as part of their existing job duties, to respond to emergencies whenever necessary,
including during their off-duty hours. However, the ALJ specifically considered and rejected
this argument. He reasoned that the policy change at issue in this case affected how the City
notified and assigned off-duty employees to respond to emergencies, not whether underground
supervisors were assigned new or additional job duties. The ALJ observed that, "although unit
members in the Underground division were expected to respond to after-hours power outages,"
under the previous roster call-out procedures, "no single employee was responsible for
answering and responding to a specific all from the City dispatcher." Consequently, "unit
members in the Underground division occasionally did not report for duty even after receiving
a call," yet "[njone of these employees were disciplined." By contrast, under the standby
rotation schedule, "one unit member at a time was primarily responsible for responding to all
after-hours calls" and, by the City's own admission, an employee's "failure to respond to an
outage as directed" would be "considered dereliction of duty and insubordination."
The ALJ's proposed decision included a remedial order which, among other things,
required the City to make whole the affected underground supervisors by compensating them

back pay, plus interest, for financial losses,
if
any, suffered as a direct result
of
the City's
unilateral change from the roster call-out policy to the stand-by call-out policy. The proposed
decision did not include a specific formula or method for computing the amount
of
back pay
owed.
Neither party filed exceptions to the proposed decision within the 20 calendar days
from the date
of
the proposed decision, as prescribed by PERB Regulation 32300.
Accordingly, on November 23, 2011, it was designated City
of
Pasadena, supra, PERB
Decision No. HO-U-1023-M and became final and binding on the parties.
In response to inquiries from PERB's Office
of
the General Counsel, on November
23
and December 20, 2011, the City filed initial and follow-up statements
of
compliance. The
City's statements
of
compliance either failed to specify what measures had been taken to
comply with the back pay award ordered by City
of
Pasadena, supra, PERB Decision
No. HO-U-1023-M, or asserted that no amount
of
back pay was owed, because none
of
the
affected employees suffered financial loss while assigned to the stand-by call-out procedure.
In support
of
its position, the City asserted that PMA had presented no quantitative evidence or
testimony as to the amounts
of
monetary loss incurred by the underground supervisors, and,
consequently, that any award
of
"damages" would be too "speculative."
On January 4, 2012, PMA filed a statement with PERB, which identified four
underground supervisors affected by the unilateral policy change and which asserted that each
identified employee was owed back pay calculated at "time-and-a-half compensation (i.e. their
overtime rate) for all off-duty hours served" over the course of the 27-month period when the
stand-by schedule was in effect, plus interest computed at 7 percent.
On March 8, 2012, a Board agent conducted a status conference with the parties to
determine whether the City had complied with the remedy specified in City
of
Pasadena,
5
with back pay, plus interest, for financial losses, if any, suffered as a direct result of the City's
unilateral change from the roster call-out policy to the stand-by call-out policy. The proposed
decision did not include a specific formula or method for computing the amount of back pay
owed.
Neither party filed exceptions to the proposed decision within the 20 calendar days
from the date of the proposed decision, as prescribed by PERB Regulation 32300.
Accordingly, on November 23, 2011, it was designated City of Pasadena, supra, PERB
Decision No. HO-U-1023-M and became final and binding on the parties.
In response to inquiries from PERB's Office of the General Counsel, on November 23
and December 20, 2011, the City filed initial and follow-up statements of compliance. The
City's statements of compliance either failed to specify what measures had been taken to
comply with the back pay award ordered by City of Pasadena, supra, PERB Decision
No. HO-U-1023-M, or asserted that no amount of back pay was owed, because none of the
affected employees suffered financial loss while assigned to the stand-by call-out procedure.
In support of its position, the City asserted that PMA had presented no quantitative evidence or
testimony as to the amounts of monetary loss incurred by the underground supervisors, and,
consequently, that any award of "damages" would be too "speculative."
On January 4, 2012, PMA filed a statement with PERB, which identified four
underground supervisors affected by the unilateral policy change and which asserted that each
identified employee was owed back pay calculated at "time-and-a-half compensation (i.e. their
overtime rate) for all off-duty hours served" over the course of the 27-month period when the
stand-by schedule was in effect, plus interest computed at 7 percent.
On March 8, 2012, a Board agent conducted a status conference with the parties to
determine whether the City had complied with the remedy specified in City of Pasadena,
5

PERB Decision No. HO-U-1023-M, including that portion
of
the decision ordering back
pay,
if
any, to the affected employees. The record does not indicate whether this "status"
conference was designated or convened as an "inquiry" or "investigation," nor whether, in
addition to the Board agent's fact-finding role, any attempt was made at this time to propose or
mediate a settlement
of
any outstanding issues between the parties. However, at the Board
agent's request, on April 23, 2012, the parties provided a stipulation
of
facts, which listed the
number
of
hours each
of
the four underground supervisors identified by PMA had been
assigned to "stand-by" duty before the unilaterally-imposed policy was rescinded. On May I,
2012, the parties filed an amended stipulation
of
facts, which identified the applicable pay rates
for each affected employee throughout the period when the unlawful policy was in effect. The
parties further agreed that the back pay issues in dispute could be decided without a hearing on
the basis
of
the above stipulated facts.
Following the submission
of
briefs on or about June 26, 2012, on September 10, 2012,
the Office
of
the General Counsel issued its Decision, which was designated a "proposed
decision." The cover letter accompanying the Decision instructed the parties that any
"statement
of
exceptions to the proposed decision" should be filed within 20 days, and in
accordance with PERB's regulation governing exceptions to proposed decisions. However, the
Decision itself informed the parties that any "appeal" from the decision to the Board itself
should be filed in accordance with the 10-day timeline and procedures specified in PERB
Regulation 32360 for processing appeals from "administrative decisions."
On September 18, 2012, the Office of the General Counsel issued a notice of errata and
additional instructions to the parties, which specified that any "statement of exceptions" to the
Decision should be so designated and filed within the 20-day timeline specified in PERB
Regulation 32300.
6
supra, PERB Decision No. HO-U-1023-M, including that portion of the decision ordering back
pay, if any, to the affected employees. The record does not indicate whether this "status"
conference was designated or convened as an "inquiry" or "investigation," nor whether, in
addition to the Board agent's fact-finding role, any attempt was made at this time to propose or
mediate a settlement of any outstanding issues between the parties. However, at the Board
agent's request, on April 23, 2012, the parties provided a stipulation of facts, which listed the
number of hours each of the four underground supervisors identified by PMA had been
assigned to "stand-by" duty before the unilaterally-imposed policy was rescinded. On May 1,
2012, the parties filed an amended stipulation of facts, which identified the applicable pay rates
for each affected employee throughout the period when the unlawful policy was in effect. The
parties further agreed that the back pay issues in dispute could be decided without a hearing on
the basis of the above stipulated facts.
Following the submission of briefs on or about June 26, 2012, on September 10, 2012,
the Office of the General Counsel issued its Decision, which was designated a "proposed
decision." The cover letter accompanying the Decision instructed the parties that any
"statement of exceptions to the proposed decision" should be filed within 20 days, and in
accordance with PERB's regulation governing exceptions to proposed decisions. However, the
Decision itself informed the parties that any "appeal" from the decision to the Board itself
should be filed in accordance with the 10-day timeline and procedures specified in PERB
Regulation 32360 for processing appeals from "administrative decisions."
On September 18, 2012, the Office of the General Counsel issued a notice of errata and
additional instructions to the parties, which specified that any "statement of exceptions" to the
Decision should be so designated and filed within the 20-day timeline specified in PERB
Regulation 32300.
6

October 5, 2012, the City filed and served a brief captioned "Statement
of
Exceptions to Administrative Law Judge's Proposed Decision Dated September 10, 2012."
The City's brief included four enumerated "exceptions."
On October 17, 2012, PMA filed its response, which PMA styled as a "Response to the
City's Administrative Appeal," and which argued, that the City's brief should be rejected as
untimely under the 10-day deadline for filing appeals from administrative decisions.
THE BOARD AGENT'S DECISION
The Decision included findings
of
fact from the parties' stipulations and City
of
Pasadena, supra, PERB Decision No. HO-U-1023-M. It identified by name the four
underground supervisors affected by the stand-by schedule and indicated for each employee
the number
of
hours assigned to stand-by duty and their regular hourly rates
of
pay, as
stipulated by the parties.
The Decision identified two issues: whether any employees represented by PMA had
suffered financial loss as a direct result
of
the City's unilateral adoption
of
the stand-by
schedule, and how the amount(s)
of
such loss,
if
any, should be calculated.
The Decision also included several conclusions
of
law. Foremost among these was the
conclusion that, although "off-duty," the underground supervisors performed a service for the
City while they were assigned to remain on stand-by for emergencies. The Decision noted
that, while assigned to the stand-by rotation schedule, underground supervisors were required
to stay geographically close to City facilities, remain in a constant "work-ready" state, and
respond to any calls on a City-issued pager which the employees were required to carry and
maintain at all times during their assigned stand-by shifts. The Decision characterized these
responsibilities as "mandatory additional duties for which [the employees] were not paid"
7
On October 5, 2012, the City filed and served a brief captioned "Statement of
Exceptions to Administrative Law Judge's Proposed Decision Dated September 10, 2012."
The City's brief included four enumerated "exceptions."
On October 17, 2012, PMA filed its response, which PMA styled as a "Response to the
City's Administrative Appeal," and which argued, that the City's brief should be rejected as
untimely under the 10-day deadline for filing appeals from administrative decisions.
THE BOARD AGENT'S DECISION
The Decision included findings of fact from the parties' stipulations and City of
Pasadena, supra, PERB Decision No. HO-U-1023-M. It identified by name the four
underground supervisors affected by the stand-by schedule and indicated for each employee
the number of hours assigned to stand-by duty and their regular hourly rates of pay, as
stipulated by the parties.
The Decision identified two issues: whether any employees represented by PMA had
suffered financial loss as a direct result of the City's unilateral adoption of the stand-by
schedule, and how the amount(s) of such loss, if any, should be calculated.
The Decision also included several conclusions of law. Foremost among these was the
conclusion that, although "off-duty," the underground supervisors performed a service for the
City while they were assigned to remain on stand-by for emergencies. The Decision noted
that, while assigned to the stand-by rotation schedule, underground supervisors were required
to stay geographically close to City facilities, remain in a constant "work-ready" state, and
respond to any calls on a City-issued pager which the employees were required to carry and
maintain at all times during their assigned stand-by shifts. The Decision characterized these
responsibilities as "mandatory additional duties for which [the employees] were not paid"
7

original emphasis), and concluded that, the affected employees had suffered financial loss as a
direct result
of
the City's unlawful unilateral change in emergency response procedures.
The Decision considered and rejected what it characterized as the City's "uncertainty
defense," i.e., the assertion that any amount
of
back pay would be too uncertain and
speculative to include in an award. The Decision noted that any uncertainty as to the
appropriate amount
of
back pay owed to the affected employees was due to the City's
own
failure to fulfill its bargaining obligation, and thus should not serve as a reason to absolve the
City
of
liability for its unlawful conduct. While acknowledging that it would be "impossible to
know with certainty
what
amount
of
compensation the parties may have agreed to had they
participated in negotiations as required by law," the Decision concluded that some amount
of
compensation must be awarded to compensate employees for the financial loss
of
performing
"extra work" or additional tasks assigned during off-duty hours, as a result
of
the City's change
in emergency response procedures.
After rejecting
PMA's
suggestion that back pay be calculated at either time-and-one
half or at each employee's regular hourly rates
of
pay for all hours assigned to the stand-by
schedule, the Decision determined that the appropriate formula was to compensate employees
at 35 percent
of
their regular hourly rate for all hours assigned to the stand-by schedule. This
figure was arrived at as a rough average
of
the formulas for on-call compensation included in
collective bargaining agreements for employees in other jurisdictions, including bargaining
units
of
managers and certain non-exempt electrical distribution employees in the City and the
nearby cities
of
Glendale and Burbank. The Board agent relied on private-sector authority for
the use
of
alternative methods for computing back pay, including "reasonable approximations
and averages," when more traditional methods
of
determining back pay are unavailable or
impractical. (NLRB Case Handling Manual, Part Three, Compliance Proceedings (NLRB
8
(original emphasis), and concluded that, the affected employees had suffered financial loss as a
direct result of the City's unlawful unilateral change in emergency response procedures.
The Decision considered and rejected what it characterized as the City's "uncertainty
defense," i.e., the assertion that any amount of back pay would be too uncertain and
speculative to include in an award. The Decision noted that any uncertainty as to the
appropriate amount of back pay owed to the affected employees was due to the City's own
failure to fulfill its bargaining obligation, and thus should not serve as a reason to absolve the
City of liability for its unlawful conduct. While acknowledging that it would be "impossible to
know with certainty what amount of compensation the parties may have agreed to had they
participated in negotiations as required by law," the Decision concluded that some amount of
compensation must be awarded to compensate employees for the financial loss of performing
"extra work" or additional tasks assigned during off-duty hours, as a result of the City's change
in emergency response procedures.
After rejecting PMA's suggestion that back pay be calculated at either time-and-one
half or at each employee's regular hourly rates of pay for all hours assigned to the stand-by
schedule, the Decision determined that the appropriate formula was to compensate employees
at 35 percent of their regular hourly rate for all hours assigned to the stand-by schedule. This
figure was arrived at as a rough average of the formulas for on-call compensation included in
collective bargaining agreements for employees in other jurisdictions, including bargaining
units of managers and certain non-exempt electrical distribution employees in the City and the
nearby cities of Glendale and Burbank. The Board agent relied on private-sector authority for
the use of alternative methods for computing back pay, including "reasonable approximations
and averages," when more traditional methods of determining back pay are unavailable or
impractical. (NLRB Case Handling Manual, Part Three, Compliance Proceedings (NLRB
8

§§ 10540, 10548; Intermountain Rural Elec. Assn. (1995) 317 NLRB 588, 588-
589; Great Lakes Chemical Corp. (1997) 323 NLRB 749, 756.)
The Decision also explained that the formula used to calculate back pay should reflect
an hourly increase received by each
of
the affected employees, beginning on or about
January 4, 2010, i.e., during the 27-month period when the unilaterally-adopted policy was in
effect. The amounts
of
each employee's hourly pay rates, including the January 2010 salary
increase, were included in the parties' stipulation.
DISCUSSION
PMA's Timeliness Objections
Because they affect whether the Board should consider the City's arguments at all, we
first address PMA's timeliness objections before proceeding to the substantive arguments
raised in the parties' briefs.
	P~T1.i\
..
asserts t\x;o reasons
\x;hy
the City's arguments are time-
barred and/or should not be considered. First, PMA correctly notes that,
if
considered an
administrative appeal, which is subject to the 10-day timeline specified by PERB
Regulations 32980, subdivision (b ), and 32360, plus the 5-day extension
of
time for service by
mail pursuant to PERB Regulation 32130, subdivision (c), the City's brief was untimely,
because it was not filed until October 5,
2012-more
than
15
days after the Decision issued on
September 10, 2012. Additionally, even
if
September 18, 2012 is considered the date the
Decision-in
its corrected
form-was
ultimately "issued," the City's brief would still be
untimely, since it was not filed within the 10 days required for appealing an administrative
The compliance provisions of the National Labor Relations Board's (NLRB) Case
Handling Manual are available at: http://www.nlrb.gov/sites/default/files/attachments/basic-
page/node-1727/CHMIII-2013 .pdf
9
Compliance) , $5 10540, 10548; Intermountain Rural Elec. Assn. (1995) 317 NLRB 588, 588-
589; Great Lakes Chemical Corp. (1997) 323 NLRB 749, 756.)
The Decision also explained that the formula used to calculate back pay should reflect
an hourly increase received by each of the affected employees, beginning on or about
January 4, 2010, i.e., during the 27-month period when the unilaterally-adopted policy was in
effect. The amounts of each employee's hourly pay rates, including the January 2010 salary
increase, were included in the parties' stipulation.
DISCUSSION
PMA's Timeliness Objections
Because they affect whether the Board should consider the City's arguments at all, we
first address PMA's timeliness objections before proceeding to the substantive arguments
raised in the parties' briefs. PMA asserts two reasons why the City's arguments are time-
barred and/or should not be considered. First, PMA correctly notes that, if considered an
administrative appeal, which is subject to the 10-day timeline specified by PERB
Regulations 32980, subdivision (b), and 32360, plus the 5-day extension of time for service by
mail pursuant to PERB Regulation 32130, subdivision (c), the City's brief was untimely,
because it was not filed until October 5, 2012-more than 15 days after the Decision issued on
September 10, 2012. Additionally, even if September 18, 2012 is considered the date the
Decision-in its corrected form-was ultimately "issued," the City's brief would still be
untimely, since it was not filed within the 10 days required for appealing an administrative
The compliance provisions of the National Labor Relations Board's (NLRB) Case
Handling Manual are available at: http:/www.nirb.gov/sites/default/files/attachments/basic-
page/node-1727/CHMIII-2013.pdf

plus 5 additional days for service by mail. PMA also correctly observes that the City
Second, PMA observes that, "to the extent the City is really trying to appeal [City
of
Pasadena, supra, PERB Decision No. HO-U-1023-M] itself, which awarded back-pay and
interest," the arguments included in the City's brief are also "time-barred," because the factual
and legal issues previously determined by the ALJ became final under Regulation 32305, as
of
November 23, 2011. As explained below, we understand
PMA's
second argument to assert not
so much an issue
of
timeliness, as whether a matter that has already been decided and not
appealed is procedurally precluded from reconsideration by PERB regulations and/or by the
law
of
the case doctrine. We therefore discuss this issue below, separate from the issue
of
timeliness.
PER.B
Regulation 32980 governs decisions regarding compliance matters and appeals
therefrom. Subdivision (a)
of
the regulation authorizes the General Counsel or his/her designate
to "conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning
any compliance matter." Subdivisions (b) and (c)
of
the regulation clearly set forth the different
procedures and different timelines for appealing an adverse decision involving compliance issues
to the Board itself, depending upon whether the decision being appealed is an "administrative
decision based on an investigation" or a "proposed decision based on a hearing." Specifically,
subdivision (b) states that, "[i]f an administrative decision based on an investigation is issued, the
decision may be appealed to the Board itself pursuant to Chapter
1,
Subchapter 4, Article 3
of
these regulations," which contains PERB's regulations governing administrative appeals, and
which specifies a I 0-day deadline for filing and serving such appeals. Conversely,
subdivision (c) of PERB Regulation 32980 states that, "[i]f a proposed decision based on a
hearing is issued, the decision may be appealed to the Board itself pursuant to Chapter 1,
10
decision plus 5 additional days for service by mail. PMA also correctly observes that the City
has not asserted any grounds for finding "good cause" to excuse a late filing in this case.	has not asserted any grounds for finding "good cause" to excuse a late filing in this case.
Second, PMA observes that, "to the extent the City is really trying to appeal [City of
Pasadena, supra, PERB Decision No. HO-U-1023-M] itself, which awarded back-pay and
interest," the arguments included in the City's brief are also "time-barred," because the factual
and legal issues previously determined by the ALJ became final under Regulation 32305, as of
November 23, 2011. As explained below, we understand PMA's second argument to assert not
so much an issue of timeliness, as whether a matter that has already been decided and not
appealed is procedurally precluded from reconsideration by PERB regulations and/or by the
law of the case doctrine. We therefore discuss this issue below, separate from the issue of
timeliness.
PERB Regulation 32980 governs decisions regarding compliance matters and appeals
therefrom. Subdivision (a) of the regulation authorizes the General Counsel or his/her designate
to "conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning
any compliance matter." Subdivisions (b) and (c) of the regulation clearly set forth the different
procedures and different timelines for appealing an adverse decision involving compliance issues
to the Board itself, depending upon whether the decision being appealed is an "administrative
decision based on an investigation" or a "proposed decision based on a hearing." Specifically,
subdivision (b) states that, "[ilf an administrative decision based on an investigation is issued, the
decision may be appealed to the Board itself pursuant to Chapter 1, Subchapter 4, Article 3 of
these regulations," which contains PERB's regulations governing administrative appeals, and
which specifies a 10-day deadline for filing and serving such appeals. Conversely,
subdivision (c) of PERB Regulation 32980 states that, "[iff a proposed decision based on a
hearing is issued, the decision may be appealed to the Board itself pursuant to Chapter 1,
10

4, Article 2 of these regulations," which is the article governing exceptions to a
Board agent's proposed decision, and which requires that exceptions be filed and served within
20 days of the proposed decision.
In the present matter, no notice of hearing was issued and no hearing was convened in
accordance with PERB regulations. By default, the compliance proceedings conducted by the
Board agent were therefore an "investigation" resulting in an "administrative decision," rather
than a "proposed decision" pursuant to PERB Regulation 32215. Although PERB
Regulation 32207 permits parties to submit stipulated facts in lieu of a hearing, because no notice
of hearing ever issued, Chapter 1, Subchapter 3 of PERB's regulations, which govern hearings
and proposed decisions resulting from hearings, never came into play. Accordingly, pursuant to
PERB Regulation 32980, subdivision (b ), the Decision should have been deemed an
"administrative" decision and any appeal therefrom should have been filed within 10-day time
limit governing "administrative appeals." Because the City's brief was not filed within this time
period, PMA is correct that it was untimely.
However, pursuant to PERB Regulation 32136, the Board may excuse a late filing for
"good cause." The Board has generally found good cause when the explanation for the late
filing was "reasonable and credible" and the delay did not cause prejudice to any party.
(Barstow Unified School District (1996) PERB Order No. Ad-277.) For example, the Board
has excused late filings caused by "honest mistakes," such as mailing or clerical errors. (See
Regents of the University of California (2012) PERB Order No. Ad-396-H, pp. 2-3, and cases
cited therein.) Because the Office of the General Counsel gave conflicting, and incorrect
instructions to the parties, and because PMA has offered no evidence that it was prejudiced by
the City's delay in filing its brief, the Board finds "good cause" and will accept the City's brief.
11
Subchapter 4, Article 2 of these regulations," which is the article governing exceptions to a
Board agent's proposed decision, and which requires that exceptions be filed and served within
20 days of the proposed decision.
In the present matter, no notice of hearing was issued and no hearing was convened in
accordance with PERB regulations. By default, the compliance proceedings conducted by the
Board agent were therefore an "investigation" resulting in an "administrative decision," rather
than a "proposed decision" pursuant to PERB Regulation 32215. Although PERB
Regulation 32207 permits parties to submit stipulated facts in lieu of a hearing, because no notice
of hearing ever issued, Chapter 1, Subchapter 3 of PERB's regulations, which govern hearings
and proposed decisions resulting from hearings, never came into play. Accordingly, pursuant to
PERB Regulation 32980, subdivision (b), the Decision should have been deemed an
"administrative" decision and any appeal therefrom should have been filed within 10-day time
limit governing "administrative appeals." Because the City's brief was not filed within this time
period, PMA is correct that it was untimely.
However, pursuant to PERB Regulation 32136, the Board may excuse a late filing for
'good cause." The Board has generally found good cause when the explanation for the late
filing was "reasonable and credible" and the delay did not cause prejudice to any party.
Barstow Unified School District (1996) PERB Order No. Ad-277.) For example, the Board
has excused late filings caused by "honest mistakes," such as mailing or clerical errors. (See
Regents of the University of California (2012) PERB Order No. Ad-396-H, pp. 2-3, and cases
cited therein.) Because the Office of the General Counsel gave conflicting, and incorrect
instructions to the parties, and because PMA has offered no evidence that it was prejudiced by
the City's delay in filing its brief, the Board finds "good cause" and will accept the City's brief.
11

next tum to the merits
of
the City's appeal. We first review the scope
of
the Board's
authority to make remedial orders and then consider the grounds raised by the City for
challenging the Decision.
The Board's Remedial Authority
MMBA section 3509 grants PERB broad authority to investigate, adjudicate and
remedy unfair practices, as the Board deems necessary to effectuate the policies and purposes
of
the Act. Generally, an administrative agency's remedial orders will not be disturbed by a
reviewing court "unless it can be shown that the order is a patent attempt to achieve ends other
than those which can fairly be said to effectuate the policies
of
the Act." (Virginia Elec. &
Power
Co.
v.
NLRB (1943) 319 U.S. 533,540; Santa Monica Community College Dist.
v.
Public Employment Relations
Bd.
(1980) 112 Cal.App.3d 684 (Santa Monica CCD);
JR.
Norton
Co.
v.
Agricultural Labor Relations Bd. (1987) 192 CaLApp.3d 874.)
In addition to a cease-and-desist order and posting requirement, the standard remedy for
an employer's unilateral change is to order the employer to rescind the new or changed policy,
to bargain with the exclusive representative upon request, and to make affected employees
whole for any losses incurred as a result
of
the unlawful conduct. (California State
Employees' Assn.
v.
Public Employment Relations Bd. (1996)
51
Cal.App.4th 923, 946.)
When employees' work time is increased without a proportionate increase in pay, the
employees are being paid less per unit
of
time worked than previously bargained for. 	In
such circumstances, it is appropriate to make the affected employees whole for any
additional time worked as a result
of
the unlawful action, either through compensatory time
off, an award
of
back pay, or some combination thereof, as may be appropriate to the
circumstances. (Mark Twain Union Elementary School District (2003) PERB Decision
12
We next turn to the merits of the City's appeal. We first review the scope of the Board's
authority to make remedial orders and then consider the grounds raised by the City for
challenging the Decision.
The Board's Remedial Authority
MMBA section 3509 grants PERB broad authority to investigate, adjudicate and
remedy unfair practices, as the Board deems necessary to effectuate the policies and purposes
of the Act. Generally, an administrative agency's remedial orders will not be disturbed by a
reviewing court "unless it can be shown that the order is a patent attempt to achieve ends other
than those which can fairly be said to effectuate the policies of the Act." (Virginia Elec. &
Power Co. v. NLRB (1943) 319 U.S. 533, 540; Santa Monica Community College Dist. v.
Public Employment Relations Bd. (1980) 112 Cal.App.3d 684 (Santa Monica CCD); J.R. Norton
Co. v. Agricultural Labor Relations Bd. (1987) 192 Cal.App.3d 874.)
In addition to a cease-and-desist order and posting requirement, the standard remedy for
an employer's unilateral change is to order the employer to rescind the new or changed policy,
to bargain with the exclusive representative upon request, and to make affected employees
whole for any losses incurred as a result of the unlawful conduct. (California State
Employees' Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 946.)
When employees' work time is increased without a proportionate increase in pay, the
employees are being paid less per unit of time worked than previously bargained for. In
such circumstances, it is appropriate to make the affected employees whole for any
additional time worked as a result of the unlawful action, either through compensatory time
off, an award of back pay, or some combination thereof, as may be appropriate to the
circumstances. (Mark Twain Union Elementary School District (2003) PERB Decision
12

1548 (Mark Twain); Oak Grove School District (1986) PERB Decision No. 582; Fountain
Valley Elementary School District (1987) PERB Decision No. 625.)
As with other remedies available to the Board, its leeway in computing back pay
awards is fairly broad. So long as they have a rational basis and are not so excessive as to be
punitive, back pay awards may appropriately serve both compensatory and deterrent functions.
(Mark Twain, supra, PERB Decision No. 1548; State
of
California (Secretary
of
State) (1990)
PERB Decision No. 812-S; see also NLRB Compliance,§ 10536.1.) 	That is, they both
reimburse employees for losses incurred as the result
of
an unfair practice and reduce an
employer's financial incentive for refusing to honor its statutory duty to bargain collectively,
by ensuring that the respondent does not retain the fruits
of
its wrongful conduct. (Bertuccio
v.
Agricultural Labor Relations Bd. (1988) 202 Cal.App.3d 1369, 1390-1391; International
426 F.2d 1243.)
In determining the appropriate measure
of
damages, a back pay award should restore
the economic status quo that would have obtained but for the respondent's wrongful
act. (Santa Clara Unified School District (1979) PERB Decision No. 104, pp. 26-27.) The
scope
of
the agency's authority thus includes "measures designed to recreate the conditions
and relationships that would have been had there been no unfair labor practice," even when
doing so necessarily entails some degree
of
uncertainty as to the precise relationships. (Franks
v.
Bowman Transp.
Co.
(1976) 424 U.S. 747, 769; NLRB
v.
J H Rutter-Rex Mfg. Co. (1969)
396 U.S. 258, 263; see also Los Gatos Joint Union High School District (1980) PERB
Decision No. 120 (Los Gatos), p. 4, fn. 3.)
The Board may not sit in judgment of the substantive terms agreed to by parties, nor
impose its own contractual terms, however desirable or reasonable they may appear to the
13
No. 1548 (Mark Twain); Oak Grove School District (1986) PERB Decision No. 582; Fountain
Valley Elementary School District (1987) PERB Decision No. 625.)
As with other remedies available to the Board, its leeway in computing back pay
awards is fairly broad. So long as they have a rational basis and are not so excessive as to be
punitive, back pay awards may appropriately serve both compensatory and deterrent functions.
(Mark Twain, supra, PERB Decision No. 1548; State of California (Secretary of State) (1990)
PERB Decision No. 812-S; see also NLRB Compliance, $ 10536.1.) That is, they both
reimburse employees for losses incurred as the result of an unfair practice and reduce an
employer's financial incentive for refusing to honor its statutory duty to bargain collectively,
by ensuring that the respondent does not retain the fruits of its wrongful conduct. (Bertuccio v.
Agricultural Labor Relations Bd. (1988) 202 Cal.App.3d 1369, 1390-1391; International
Union of Electrical, Radio & Machine Workers v. NLRB (Tiidee Products )) (D.C. Cir. 1970)
426 F.2d 1243.)
In determining the appropriate measure of damages, a back pay award should restore
the economic status quo that would have obtained but for the respondent's wrongful
act. (Santa Clara Unified School District (1979) PERB Decision No. 104, pp. 26-27.) The
scope of the agency's authority thus includes "measures designed to recreate the conditions
and relationships that would have been had there been no unfair labor practice," even when
doing so necessarily entails some degree of uncertainty as to the precise relationships. (Franks
v. Bowman Transp. Co. (1976) 424 U.S. 747, 769; NLRB v. J. H. Rutter-Rex Mfg. Co. (1969)
396 U.S. 258, 263; see also Los Gatos Joint Union High School District (1980) PERB
Decision No. 120 (Los Gatos), p. 4, fn. 3.)
The Board may not sit in judgment of the substantive terms agreed to by parties, nor
impose its own contractual terms, however desirable or reasonable they may appear to the
13

(Dublin Professional Fire Fighters
v.
Valley Community Services Dist. (1975)
45 Cal.App.3d 116, 119; Los Angeles County Employees Assn., Local 660
v.
County
of
Los Angeles (1973) 33 Cal.App.3d
1,
8 (County
of
Los Angeles); H
K.
Porter
Co.
v.
NLRB
(1970) 397 U.S. 99, 106
(HK.
Porter).) However, absolute certainty is not required for
computing the appropriate amount
of
back pay necessary to remedy unfair practices. A back
pay award inevitably involves some ambiguity and estimation and is therefore "only an
approximation, necessitated by the employer's wrongful conduct." (Cobb Mechanical
Contractors (2001) 333 NLRB 1168, quoting Bagel Bakers Council
of
Greater New York
v.
NLRB (2d Cir. 1977) 555 F.2d 304,305; Los Gatos, supra, PERB Decision No. 120,
p.
4, fn. 3.)
It follows from the rule prohibiting the Board from imposing contract terms that back pay
cannot be awarded in cases involving bad faith bargaining because there is no objective
way
of
determining what the parties would have agreed to, had they bargained in good faith.
(Ex-Cell-O Corp. (1970) 185 NLRB 107; H
K.
Porter.) The same is not true, however, in cases
involving unilateral changes, where. the employer's unilaterally implemented policy or practice
provides some objective measure against the previous status quo, even
if
the precise measure
of
damages that resulted from the change may require estimates or approximations. (Corning
Union High School District (1984) PERB Decision No. 399, pp. 7-8.)
Finally, pursuant to PERB's regulations and general principles
of
orderly process,
parties are not free to use compliance proceedings to re-litigate factual issues previously
decided in the same action. PERB recognizes and adheres to the policy that litigation shall not
be had in a piecemeal fashion, so that when a party has a particular claim or defense in a
pending cause
of
action, it must assert it in those proceedings, or it will be waived. (Brawley
Union High School District (1983) PERB Decision No. 266a, pp. 3-4.)
14
Board. (Dublin Professional Fire Fighters v. Valley Community Services Dist. (1975)
45 Cal.App.3d 116, 119; Los Angeles County Employees Assn., Local 660 v. County of
Los Angeles (1973) 33 Cal.App.3d 1, 8 (County of Los Angeles); H. K. Porter Co. v. NLRB
(1970) 397 U.S. 99, 106 (H. K. Porter).) However, absolute certainty is not required for
computing the appropriate amount of back pay necessary to remedy unfair practices. A back
pay award inevitably involves some ambiguity and estimation and is therefore "only an
approximation, necessitated by the employer's wrongful conduct." (Cobb Mechanical
Contractors (2001) 333 NLRB 1168, quoting Bagel Bakers Council of Greater New York v.
NLRB (2d Cir. 1977) 555 F.2d 304, 305; Los Gatos, supra, PERB Decision No. 120, p. 4, fn. 3.)
It follows from the rule prohibiting the Board from imposing contract terms that back pay
cannot be awarded in cases involving bad faith bargaining because there is no objective
way of determining what the parties would have agreed to, had they bargained in good faith.
(Ex-Cell-O Corp. (1970) 185 NLRB 107; H. K. Porter.) The same is not true, however, in cases
involving unilateral changes, where the employer's unilaterally implemented policy or practice
provides some objective measure against the previous status quo, even if the precise measure of
damages that resulted from the change may require estimates or approximations. (Corning
Union High School District (1984) PERB Decision No. 399, pp. 7-8.)
Finally, pursuant to PERB's regulations and general principles of orderly process,
parties are not free to use compliance proceedings to re-litigate factual issues previously
decided in the same action. PERB recognizes and adheres to the policy that litigation shall not
be had in a piecemeal fashion, so that when a party has a particular claim or defense in a
pending cause of action, it must assert it in those proceedings, or it will be waived. (Brawley
Union High School District (1983) PERB Decision No. 266a, pp. 3-4.)
14

City's Grounds for Appeal
Whether the Stand-By Rotation Schedule Involved Additional Duties.
The City first disputes the Decision's finding that "the affected employees
...
were
forced to perform mandatory additional duties for which they were not paid." (Original
emphasis.) According to the City, under the previous roster call-out procedure, the
underground supervisors were already required during their off-duty hours to stay close to City
facilities, to remain in a work-ready state, to carry a City-issued pager, and to respond to pages
regarding emergency situations. The City thus objects to this finding in the decision because,
it asserts, "the evidence shows that placing [u]nderground [c]rew [s]upervisors on a stand-by
rotation schedule did not subject them to additional duties."
We decline to pass on the merits
of
this argument, pursuant to PERB Regulation 32300,
subdivision (c), which requires that exceptions to a proposed decision be timely raised, or else
they are waived in subsequent proceedings before the Board. In the underlying decision in this
case, City
of
Pasadena, supra, PERB Decision No. HO-U-1023-M, the ALJ determined that
the City's change in practice from the roster call-out procedure to the stand-by call-out
schedule "fundamentally altered the process for distributing after-hours assignments,
including overtime assignments," and, that "the fact that uriit members could no longer simply
decline to respond to a dispatch call demonstrates a significant and adverse change to working
conditions." (Emphasis added.)
In the ALJ's view, this change in the established practice was not merely tangential or
de minimus because
of
the qualitatively different nature or degree of individual employee
accountability that was introduced by the stand-by call-out procedure, and because, by the
City's own admission, disciplinary action would result for an employee's failure to respond to
an emergency dispatch after the new procedure went into place. In arriving at this conclusion,
15
The City's Grounds for Appeal
Whether the Stand-By Rotation Schedule Involved Additional Duties.
The City first disputes the Decision's finding that "the affected employees . . . were
forced to perform mandatory additional duties for which they were not paid." (Original
emphasis.) According to the City, under the previous roster call-out procedure, the
underground supervisors were already required during their off-duty hours to stay close to City
facilities, to remain in a work-ready state, to carry a City-issued pager, and to respond to pages
regarding emergency situations. The City thus objects to this finding in the decision because,
it asserts, "the evidence shows that placing [underground [crew [supervisors on a stand-by
rotation schedule did not subject them to additional duties."
We decline to pass on the merits of this argument, pursuant to PERB Regulation 32300,
subdivision (c), which requires that exceptions to a proposed decision be timely raised, or else
they are waived in subsequent proceedings before the Board. In the underlying decision in this
case, City of Pasadena, supra, PERB Decision No. HO-U-1023-M, the ALJ determined that
the City's change in practice from the roster call-out procedure to the stand-by call-out
schedule "fundamentally altered the process for distributing after-hours assignments,
including overtime assignments," and, that "the fact that unit members could no longer simply
decline to respond to a dispatch call demonstrates a significant and adverse change to working
conditions." (Emphasis added.)
In the ALJ's view, this change in the established practice was not merely tangential or
de minimus because of the qualitatively different nature or degree of individual employee
accountability that was introduced by the stand-by call-out procedure, and because, by the
City's own admission, disciplinary action would result for an employee's failure to respond to
an emergency dispatch after the new procedure went into place. In arriving at this conclusion,
15

ALJ expressly considered and rejected the City's argument that underground supervisors
were already required to respond to emergencies, either by the previous roster call-out
procedure, or as a consequence
of
the City's discretion to assign new job duties reasonably
encompassed by the underground supervisor classification. However, the ALJ reasoned that
"The primary issue in this case is not whether unit members were assigned new job duties, but
whether the City unilaterally changed the process for assigning work to unit members."
Thus, the finding
of
liability for a unilateral change in this case was not based on a
theory
of
newly-added duties which were not reasonably comprehended by the existing
classification, but on the ALJ's conclusion that additional and significant responsibilities or
burdens were placed on employees during their "off-duty" hours as a result
of
the unilateral
change in the City's emergency response assignment procedures. Underlying the ALJ's
conclusion is the premise,
vvhich
lies
at
the heart
of
the
~,,11\.1B.A'",
that the employees'
representative may have wished to bargain for some form
of
additional compensation, or for
alternatives to the change in emergency response procedures, but that it was unable to do so,
given the City's decision to implement those procedures without notice and reasonable
opportunity for bargaining. (County
of
Santa Clara (2013) PERB Decision No. 2321-M; see
also NLRB
v.
Katz (1962) 369 U.S. 736; San Francisco Community College District (1979)
PERB Decision No. 105.)
The City filed no exceptions to the ALJ's proposed decision and, consequently, on
November 23, 2011, that decision became final and binding on the parties to this case.
(PERB Reg. 32305.) Under PERB Regulation 32300, subdivision (c), the City is not now free
to re-litigate legal or factual issues previously decided in this case, absent "extraordinary
circumstances," such as newly-discovered evidence or an intervening change in law, that
would justify reconsideration of the ALJ's decision, pursuant to PERB Regulation 32410. The
16
the ALJ expressly considered and rejected the City's argument that underground supervisors
were already required to respond to emergencies, either by the previous roster call-out
procedure, or as a consequence of the City's discretion to assign new job duties reasonably
encompassed by the underground supervisor classification. However, the ALJ reasoned that
"The primary issue in this case is not whether unit members were assigned new job duties, but
whether the City unilaterally changed the process for assigning work to unit members."
Thus, the finding of liability for a unilateral change in this case was not based on a
theory of newly-added duties which were not reasonably comprehended by the existing
classification, but on the ALJ's conclusion that additional and significant responsibilities or
burdens were placed on employees during their "off-duty" hours as a result of the unilateral
change in the City's emergency response assignment procedures. Underlying the ALJ's
conclusion is the premise, which lies at the heart of the MMBA, that the employees'
representative may have wished to bargain for some form of additional compensation, or for
alternatives to the change in emergency response procedures, but that it was unable to do so,
given the City's decision to implement those procedures without notice and reasonable
opportunity for bargaining. (County of Santa Clara (2013) PERB Decision No. 2321-M; see
also NLRB v. Katz (1962) 369 U.S. 736; San Francisco Community College District (1979)
PERB Decision No. 105.)
The City filed no exceptions to the ALJ's proposed decision and, consequently, on
November 23, 2011, that decision became final and binding on the parties to this case.
(PERB Reg. 32305.) Under PERB Regulation 32300, subdivision (c), the City is not now free
to re-litigate legal or factual issues previously decided in this case, absent "extraordinary
circumstances," such as newly-discovered evidence or an intervening change in law, that
would justify reconsideration of the ALJ's decision, pursuant to PERB Regulation 32410. The
16

has pointed to no such "extraordinary circumstances" or any other reasons that would
excuse the untimeliness
of
a request for reconsideration made more than 20 days after City
of
Pasadena, supra, PERB Decision No. HO-U-1023-M became final on November 23, 2011.
Although the Board may consider a legal or factual issue which a party has failed to raise in a
timely-filed exception (Rio Hondo Community College District (1979) PERB Decision No. 87,
p. 3, fn. 3), it generally refrains from doing so, unless necessary to prevent an error
of
law or
manifest injustice. (Apple Valley Unified School District (1990) PERB Order No. Ad-209a;
Mt.
Diablo Unified School District (1983) PERB Decision No. 373; Fresno Unified School
District (1982) PERB Decision No. 208.) However, the City has cited no facts to suggest that
the Board must disturb the finality
of
PERB Decision No. HO-U-1023-M in order to prevent
an error
of
law or manifest injustice. Accordingly, we reject this argument.
Whether Employee Organizations May Bargain for Premium Pay Rates or Other Forms
of
Compensation Not Required by Substantive Wage and Hour Laws.
The City next disputes that any amount
of
back pay is owed to the underground
supervisors because they are "exempt" employees, i.e., not subject to state or federal overtime
laws, and because they allegedly performed no actual "work" while on stand-by. Both
arguments lack merit.
First, we reject the City's contention that, as "exempt" employees, who were ostensibly
already required to respond to emergencies during their off-duty hours, the underground
supervisors suffered no financial loss as a result
of
the unilaterally-implemented rotation
schedule. As explained above, City
of
Pasadena, supra, PERB Decision No. HO-U-1023-M
determined that, as a result of the change in emergency response procedures, underground
supervisors faced disciplinary action for their failure to respond to an emergency dispatch,
whereas under the previous "roster call-out" procedure, no underground supervisors had faced
17
City has pointed to no such "extraordinary circumstances" or any other reasons that would
excuse the untimeliness of a request for reconsideration made more than 20 days after City of
Pasadena, supra, PERB Decision No. HO-U-1023-M became final on November 23, 2011.
Although the Board may consider a legal or factual issue which a party has failed to raise in a
timely-filed exception (Rio Hondo Community College District (1979) PERB Decision No. 87,
p. 3, fn. 3), it generally refrains from doing so, unless necessary to prevent an error of law or
manifest injustice. (Apple Valley Unified School District (1990) PERB Order No. Ad-209a;
Mt. Diablo Unified School District (1983) PERB Decision No. 373; Fresno Unified School
District (1982) PERB Decision No. 208.) However, the City has cited no facts to suggest that
the Board must disturb the finality of PERB Decision No. HO-U-1023-M in order to prevent
an error of law or manifest injustice. Accordingly, we reject this argument.
Whether Employee Organizations May Bargain for Premium Pay Rates or Other Forms
of Compensation Not Required by Substantive Wage and Hour Laws.
The City next disputes that any amount of back pay is owed to the underground
supervisors because they are "exempt" employees, i.e., not subject to state or federal overtime
laws, and because they allegedly performed no actual "work" while on stand-by. Both
arguments lack merit.
First, we reject the City's contention that, as "exempt" employees, who were ostensibly
already required to respond to emergencies during their off-duty hours, the underground
supervisors suffered no financial loss as a result of the unilaterally-implemented rotation
schedule. As explained above, City of Pasadena, supra, PERB Decision No. HO-U-1023-M
determined that, as a result of the change in emergency response procedures, underground
supervisors faced disciplinary action for their failure to respond to an emergency dispatch,
whereas under the previous "roster call-out" procedure, no underground supervisors had faced
17

action, even when they declined to respond to a dispatch. Even assuming that
underground supervisors were, by virtue
of
their "exempt" status, "obligated" to respond to
emergencies during their off-duty hours, the additional element
of
individual employee
accountability, backed up by the threat
of
disciplinary action, constituted a new and significant
responsibility for underground supervisors during their "off-duty" hours. Whether characterized
as new duties or additional burdens on their existing off-duty hours, these facts formed the basis
for the ALJ's finding ofliability in PERB Decision No. HO-U-1023-M and, because the City
filed no timely exceptions, we see no reason to disturb the Board agent's reliance on these
same factual findings as the basis for computing the amount
of
back pay owed. 	In short, we
need not determine that the City's change in emergency response procedures transformed
entirely duty-free time into compensable "hours worked" within the meaning
of
state or
No. HO-U-1023-M, and the back pay award computed in the subsequent Decision.
In Healdsburg Union Elementary School District (1994) PERB Decision No. 1033, the
Board concluded that an employer had breached its duty to bargain when it unilaterally
implemented a policy requiring kindergarten teachers to be present in their classrooms and to
supervise students from 7:50 to 8:05 a.m., whereas previously the teachers had been on site, but
had used the fifteen minutes immediately preceding classroom instruction as they saw fit.
Because the additional burdens imposed on the teachers during the previously unstructured time
had an effect on the length
of
the teacher's workday and/or the amount
of
work performed per
unit oftime, the employer's change in policy was negotiable. As part
of
the remedy in
Healdsburg, PERB ordered the employer to provide the affected teachers with compensatory
time off corresponding to the amount of additional hours worked as a result of the newly-
implemented policy or, in the event the parties could not agree on the manner in which to
18
disciplinary action, even when they declined to respond to a dispatch. Even assuming that
underground supervisors were, by virtue of their "exempt" status, "obligated" to respond to
emergencies during their off-duty hours, the additional element of individual employee
accountability, backed up by the threat of disciplinary action, constituted a new and significant
responsibility for underground supervisors during their "off-duty" hours. Whether characterized
as new duties or additional burdens on their existing off-duty hours, these facts formed the basis
for the ALJ's finding of liability in PERB Decision No. HO-U-1023-M and, because the City
filed no timely exceptions, we see no reason to disturb the Board agent's reliance on these
same factual findings as the basis for computing the amount of back pay owed. In short, we
need not determine that the City's change in emergency response procedures transformed
entirely duty-free time into compensable "hours worked" within the meaning of state or
federal wage and hour laws to uphold both the City's liability, as determined in PERB Decision
No. HO-U-1023-M, and the back pay award computed in the subsequent Decision.
In Healdsburg Union Elementary School District (1994) PERB Decision No. 1033, the
Board concluded that an employer had breached its duty to bargain when it unilaterally
implemented a policy requiring kindergarten teachers to be present in their classrooms and to
supervise students from 7:50 to 8:05 a.m., whereas previously the teachers had been on site, but
had used the fifteen minutes immediately preceding classroom instruction as they saw fit.
Because the additional burdens imposed on the teachers during the previously unstructured time
had an effect on the length of the teacher's workday and/or the amount of work performed per
unit of time, the employer's change in policy was negotiable. As part of the remedy in
Healdsburg, PERB ordered the employer to provide the affected teachers with compensatory
time off corresponding to the amount of additional hours worked as a result of the newly-
implemented policy or, in the event the parties could not agree on the manner in which to
18

compensatory time, an award
of
back pay commensurate with the extra hours worked,
plus interest. (Id. at pp. 11-12.) Although the appropriate "make whole" remedy for employees
whose hours
of
work have increased as the result
of
a unilateral change may entail either
compensatory time off, back pay, or some combination thereof (Mark Twain, supra, PERB
Decision No. 1548, pp. 6-9), in the present case neither party has requested compensatory time
off
in lieu
of
back pay, and we find nothing objectionable in the Decision's exclusive focus on
back pay as the appropriate "make whole" alternative under the circumstances.
Thus, whether underground supervisors have ever previously received premium pay
rates for "overtime" while being "on call" is not determinative
of
whether they are entitled to
back pay in the present circumstances. As explained in City
of
Pasadena, supra, PERB
Decision No. HO-U-1023-M, the City sufficiently altered the nature
of
being "on call,"
when it unilaterally abandoned the previous roster call-out procedure and adopted in its place
the on-call rotation schedule which had a "significant and adverse effect" on employee
working conditions. The ALJ in PERB Decision No. HO-U-1023-M did not consider or
decide the case on a theory that the City implemented new or changed overtime compensation
policies. Rather, he determined that the newly-implemented on-call rotation schedule was a
"significant and adverse" change from the previous roster call-out procedure.
The Decision likewise considered but rejected PMA' s argument that overtime pay rates
constituted the appropriate measure
of
damages for all time underground supervisors were
assigned to the rotation schedule. Instead, the Decision looked to collectively-bargained terms
affecting other bargaining units, both within the City's employ and in surrounding
municipalities, to come to an approximate measure of the back pay necessary to make the
underground supervisors whole. The City's reference to "overtime" is therefore both legally
and factually irrelevant to any issues presented by the Decision.
19
provide compensatory time, an award of back pay commensurate with the extra hours worked,
plus interest. (Id. at pp. 11-12.) Although the appropriate "make whole" remedy for employees
whose hours of work have increased as the result of a unilateral change may entail either
compensatory time off, back pay, or some combination thereof (Mark Twain, supra, PERB
Decision No. 1548, pp. 6-9), in the present case neither party has requested compensatory time
off in lieu of back pay, and we find nothing objectionable in the Decision's exclusive focus on
back pay as the appropriate "make whole" alternative under the circumstances.
Thus, whether underground supervisors have ever previously received premium pay
rates for "overtime" while being "on call" is not determinative of whether they are entitled to
back pay in the present circumstances. As explained in City of Pasadena, supra, PERB
Decision No. HO-U-1023-M, the City sufficiently altered the nature of being "on call,"
when it unilaterally abandoned the previous roster call-out procedure and adopted in its place
the on-call rotation schedule which had a "significant and adverse effect" on employee
working conditions. The ALJ in PERB Decision No. HO-U-1023-M did not consider or
decide the case on a theory that the City implemented new or changed overtime compensation
policies. Rather, he determined that the newly-implemented on-call rotation schedule was a
"significant and adverse" change from the previous roster call-out procedure.
The Decision likewise considered but rejected PMA's argument that overtime pay rates
constituted the appropriate measure of damages for all time underground supervisors were
assigned to the rotation schedule. Instead, the Decision looked to collectively-bargained terms
affecting other bargaining units, both within the City's employ and in surrounding
municipalities, to come to an approximate measure of the back pay necessary to make the
underground supervisors whole. The City's reference to "overtime" is therefore both legally
and factually irrelevant to any issues presented by the Decision.
19

City similarly asserts that, under the Fair Labor Standards Act (FLSA), "even non-
exempt employees do not automatically receive pay for being on stand-by." It asserts that
federal law looks to two factors to determine whether time spent
"on
call" is compensable
under the FLSA: (1) the degree to which the employee is free to engage in personal activities;
and (2) the agreement between the parties. The City raised substantially the same arguments in
its post-hearing brief, which were considered and rejected in City
of
Pasadena, supra, PERB
Decision No. HO-U-1023-M. The wage and hour standards included in state and federal laws
impose substantive minima below which employers and employee organizations may not
bargain. Employers and employee organizations may bargain for wage and hour standards that
meet or exceed the minimum standards
of
wage and hour laws. (Barrentine
v.
Arkansas-Best
Freight System, Inc. (1981) 450 U.S. 728; Livadas
v.
Bradshaw (1994) 512 U.S. 107.) In fact,
in its post-hearing biief, the City admitted that, while the undcrgrnund supervisors are "exempt
from overtime provisions
of
the Fair Labor Standards Act
...
as a result
of
prior negotiations
with PMA, the City provides these employees overtime at a rate
of
time and one-half for all
hours worked in response to work-related emergencies which occur beyond an employee's
regular work schedule."
In any event, we are not concerned with enforcing the substantive rights
of
wage and
hour laws. We are concerned with enforcing the procedural rights
of
the employees'
representative to bargain over whether there shall be compensation and,
if
so, how it shall be
calculated when the nature and degree
of
"personal time" afforded employees is fundamentally
altered by a change in the employer's "on call" emergency response procedures. City
of
Pasadena, supra, PERB Decision No. HO-U-1023-M holds that such issues are indeed not
"automatic," and that they must be bargained by public employers with the designated
representatives of their employees. The City's failure to grasp that point has resulted in its
20
The City similarly asserts that, under the Fair Labor Standards Act (FLSA), "even non-
exempt employees do not automatically receive pay for being on stand-by." It asserts that
federal law looks to two factors to determine whether time spent "on call" is compensable
under the FLSA: (1) the degree to which the employee is free to engage in personal activities;
and (2) the agreement between the parties. The City raised substantially the same arguments in
its post-hearing brief, which were considered and rejected in City of Pasadena, supra, PERB
Decision No. HO-U-1023-M. The wage and hour standards included in state and federal laws
impose substantive minima below which employers and employee organizations may not
bargain. Employers and employee organizations may bargain for wage and hour standards that
meet or exceed the minimum standards of wage and hour laws. (Barrentine v. Arkansas-Best
Freight System, Inc. (1981) 450 U.S. 728; Livadas v. Bradshaw (1994) 512 U.S. 107.) In fact,
in its post-hearing brief, the City admitted that, while the underground supervisors are "exempt
from overtime provisions of the Fair Labor Standards Act . . . as a result of prior negotiations
with PMA, the City provides these employees overtime at a rate of time and one-half for all
hours worked in response to work-related emergencies which occur beyond an employee's
regular work schedule."
In any event, we are not concerned with enforcing the substantive rights of wage and
hour laws. We are concerned with enforcing the procedural rights of the employees'
representative to bargain over whether there shall be compensation and, if so, how it shall be
calculated when the nature and degree of "personal time" afforded employees is fundamentally
altered by a change in the employer's "on call" emergency response procedures. City of
Pasadena, supra, PERB Decision No. HO-U-1023-M holds that such issues are indeed not
"automatic," and that they must be bargained by public employers with the designated
representatives of their employees. The City's failure to grasp that point has resulted in its
20

for back pay to the employees, which the Board agent in this case has done her best to
calculate after the fact.
Although stated separately, the City raises a variant
of
the above argument, when it
asserts that underground crew supervisors were "always subject to emergency call outs 24
hours, 7 days a week," and were therefore not subjected to any "additional duties" when the
City unilaterally imposed the on call rotation schedule. We reject this argument for the reasons
explained above.
Whether the Burdens Imposed by the City's On-Call Rotation Schedule Were Included
in the Employees' Previously-Negotiated Salary Structure and Whether a PERB Back
Pay Award Interferes with the City's Authority to Determine Employee Compensation.
The City also argues that computing a back pay award based on what could have been
negotiated between the parties is improper, because it interferes with state constitutional
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employees. We reject this argument as well.
It is well settled that general laws seeking to accomplish an objective
of
statewide
concern may prevail over conflicting local regulations, even
if
they impinge to some extent
on aspects
of
local control. (Professional Fire Fighters, Inc.
v.
City
of
Los Angeles (1963)
60 Cal.2d 276; Baggett
v.
Gates (1982) 32 Cal.3d 128, 140.) Because labor unrest and strikes
produce consequences that extend far beyond local boundaries, the Legislature may adopt
statewide standards for uniform fair labor practices, notwithstanding the constitutionally-
guaranteed authority of local entities to set employee compensation. (Ibid.)
Accordingly, in People ex rel. Seal Beach Police Officers Assn.
v.
City
of
Seal Beach
(1984) 36 Cal.3d 591 (Seal Beach), the California Supreme Court upheld the constitutionality
of the MMBA's requirement that local agencies meet and confer with the exclusive
representatives of their employees before determining employee compensation. As explained
21
liability for back pay to the employees, which the Board agent in this case has done her best to
calculate after the fact.
Although stated separately, the City raises a variant of the above argument, when it
asserts that underground crew supervisors were "always subject to emergency call outs 24
hours, 7 days a week," and were therefore not subjected to any "additional duties" when the
City unilaterally imposed the on call rotation schedule. We reject this argument for the reasons
explained above.
Whether the Burdens Imposed by the City's On-Call Rotation Schedule Were Included
in the Employees' Previously-Negotiated Salary Structure and Whether a PERB Back
Pay Award Interferes with the City's Authority to Determine Employee Compensation.
The City also argues that computing a back pay award based on what could have been
negotiated between the parties is improper, because it interferes with state constitutional
provisions granting public agencies sole authority to determine the compensation of their
employees. We reject this argument as well.
It is well settled that general laws seeking to accomplish an objective of statewide
concern may prevail over conflicting local regulations, even if they impinge to some extent
on aspects of local control. (Professional Fire Fighters, Inc. v. City of Los Angeles (1963)
60 Cal.2d 276; Baggett v. Gates (1982) 32 Cal.3d 128, 140.) Because labor unrest and strikes
produce consequences that extend far beyond local boundaries, the Legislature may adopt
statewide standards for uniform fair labor practices, notwithstanding the constitutionally-
guaranteed authority of local entities to set employee compensation. (Ibid.)
Accordingly, in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach
(1984) 36 Cal.3d 591 (Seal Beach), the California Supreme Court upheld the constitutionality
of the MMBA's requirement that local agencies meet and confer with the exclusive
representatives of their employees before determining employee compensation. As explained
21

Seal Beach "While the Legislature established a procedure for resolving disputes regarding
wages, hours and other conditions
of
employment, it did not attempt to establish standards for
the wages, hours and other terms and conditions themselves."
(Id.
at
p.
597, emphasis added.)
Under Seal Beach, public employers are thus free to exercise their constitutional authority to
determine terms and conditions
of
employment, so long as they fulfill their obligations to
bargain collectively with the representatives
of
their employees.
The City's citation to County
of
Riverside
v.
Superior Court (2003) 30 Cal.4th 278
(County
of
Riverside) is therefore misplaced. In that case, the Supreme Court struck down as
unconstitutional a statute requiring counties to submit to binding arbitration umesolved issues
arising in negotiations with fire fighters and police officers. County
of
Riverside was thus
concerned with whether a third party may compel a public employer to adhere to substantive,
contractual obligations on a prospective basis. The case did not address, much less did it
reject, PERB's well-settled remedial authority to order an award
of
back pay for a public
employer's violation
of
its duty to bargain under the MMBA. As explained in County
of
Riverside, the line drawn by the Supreme Court is between the authority
of
the Legislature to
regulate labor relations and unconstitutional acts that would divest local agencies entirely
of
their authority to set employee compensation. (Id. at p. 287; see also Sonoma County
Organization
of
Public Employees
v.
County
of
Sonoma (1979) 23 Cal.3d 296, 317.) In short,
so long as the Legislature does not seek to impose substantive standards concerning employee
wages, hours or working conditions, it may appropriately delegate its authority to PERB to
administer and enforce the MMBA's procedural requirements for collective bargaining, which
includes the authority to remedy unfair practices through back pay awards. (Seal Beach,
supra, 36 Cal.3d 591, 597; County
of
Los Angeles, supra, 33 Cal.App.3d 1, 8.)
22
in Seal Beach "While the Legislature established a procedure for resolving disputes regarding
wages, hours and other conditions of employment, it did not attempt to establish standards for
the wages, hours and other terms and conditions themselves." (Id. at p. 597, emphasis added.)
Under Seal Beach, public employers are thus free to exercise their constitutional authority to
determine terms and conditions of employment, so long as they fulfill their obligations to
bargain collectively with the representatives of their employees.
The City's citation to County of Riverside v. Superior Court (2003) 30 Cal.4th 278
(County of Riverside) is therefore misplaced. In that case, the Supreme Court struck down as
unconstitutional a statute requiring counties to submit to binding arbitration unresolved issues
arising in negotiations with fire fighters and police officers. County of Riverside was thus
concerned with whether a third party may compel a public employer to adhere to substantive,
contractual obligations on a prospective basis. The case did not address, much less did it
reject, PERB's well-settled remedial authority to order an award of back pay for a public
employer's violation of its duty to bargain under the MMBA. As explained in County of
Riverside, the line drawn by the Supreme Court is between the authority of the Legislature to
regulate labor relations and unconstitutional acts that would divest local agencies entirely of
their authority to set employee compensation. (Id. at p. 287; see also Sonoma County
Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 317.) In short,
so long as the Legislature does not seek to impose substantive standards concerning employee
wages, hours or working conditions, it may appropriately delegate its authority to PERB to
administer and enforce the MMBA's procedural requirements for collective bargaining, which
includes the authority to remedy unfair practices through back pay awards. (Seal Beach,
supra, 36 Cal.3d 591, 597; County of Los Angeles, supra, 33 Cal.App.3d 1, 8.)
22

Decision's back pay award is entirely consistent with the constitutional boundaries
explained in Seal Beach, County
of
Riverside and other cases. Far from usurping the
City's
authority to set employee compensation, the Decision expressly relies on the hourly wage rates
previously set by the City for calculating the amount
of
back pay owed to each affected
employee. The Decision does not seek to compel the City to pay compensation at hourly rates
or in amounts different from the terms that the City has already agreed to, as indicated
in
the
parties' stipulation. Thus, the Decision does not, as the City claims, "improperly impose[] an
overtime pay schedule on the City," nor "deprive[] it
of
the ability to set the compensation for
its employees."
Nor does the Decision seek to award back pay beyond the period
of
liability determined
by the ALJ or at any other time which would impair the City's ability to determine employee
compensation or other substantive standards on a prospective basis. The City is free to bargain
collectively with PMA for any future wages or wage rates, consistent with its obligations under
the MMBA. In short, because the back pay award does not impose a prospective substantive
obligation on the City with respect to employee compensation and seeks only to enforce
PMA's procedural rights to bargain collectively, it does not exceed PERB's authority under
the MMBA nor run afoul
of
well-settled constitutional boundaries. (Seal Beach, supra,
36 Cal.3d 591, 597; County
of
Riverside, supra, 30 Cal.4th 278, 289.)
Whether Similar Burdens Imposed on Other Employees' Off-Duty Hours May Serve as
a Basis for Computing the Amount
of
Back Pay Owed in this Case.
The City also objects to the Decision's reliance on examples
of
"stand-by" work
performed by other employees as a basis for calculating the appropriate amount
of
back pay
owed to the underground supervisors in the present case. The City argues that the stand-by
work performed by its underground supervisors is dissimilar to stand-by work performed by
23
The Decision's back pay award is entirely consistent with the constitutional boundaries
explained in Seal Beach, County of Riverside and other cases. Far from usurping the City's
authority to set employee compensation, the Decision expressly relies on the hourly wage rates
previously set by the City for calculating the amount of back pay owed to each affected
employee. The Decision does not seek to compel the City to pay compensation at hourly rates
or in amounts different from the terms that the City has already agreed to, as indicated in the
parties' stipulation. Thus, the Decision does not, as the City claims, "improperly impose[] an
overtime pay schedule on the City," nor "deprive[] it of the ability to set the compensation for
its employees."
Nor does the Decision seek to award back pay beyond the period of liability determined
by the ALJ or at any other time which would impair the City's ability to determine employee
compensation or other substantive standards on a prospective basis. The City is free to bargain
collectively with PMA for any future wages or wage rates, consistent with its obligations under
the MMBA. In short, because the back pay award does not impose a prospective substantive
obligation on the City with respect to employee compensation and seeks only to enforce
PMA's procedural rights to bargain collectively, it does not exceed PERB's authority under
the MMBA nor run afoul of well-settled constitutional boundaries. (Seal Beach, supra,
36 Cal.3d 591, 597; County of Riverside, supra, 30 Cal.4th 278, 289.)
Whether Similar Burdens Imposed on Other Employees' Off-Duty Hours May Serve as
a Basis for Computing the Amount of Back Pay Owed in this Case.
The City also objects to the Decision's reliance on examples of "stand-by" work
performed by other employees as a basis for calculating the appropriate amount of back pay
owed to the underground supervisors in the present case. The City argues that the stand-by
work performed by its underground supervisors is dissimilar to stand-by work performed by
23

!BEW-represented employees
of
the City or to stand-by work performed
by
employees in nearby municipalities. We reject this argument, as it misstates the factual record,
and is inconsistent with PERB precedent and the policies
of
the MMBA.
First, we agree with the Decision that, in the absence
of
notice and meaningful
opportunity to bargain, PMA could not have anticipated that underground supervisors would
be individually assigned to an on-call rotation schedule and required, upon threat
of
disciplinary action, to respond to emergencies. As determined in City
of
Pasadena, supra,
PERB Decision No. HO-U-1023-M, this new procedure differed from the established practice
that existed when the City and PMA negotiated the underground supervisors' compensation.
There is no basis for accepting the City's assertion that the new responsibilities or burdens
imposed by the stand-by rotation schedule were already contemplated and included in the
u..~derground supervisors' negotiated salary structure.
Moreover, this exception misstates the basis for the ALJ' s finding
of
liability in City
of
Pasadena, supra, PERB Decision No. HO-U-1023-M and the basis for comparison used in the
Decision's back pay award. 	The purpose
of
looking to the compensation structure
of
other
employees whose employers have similar stand-by schedules was not that the other employees
necessarily perform the same or similar job duties as those performed by the City's
underground supervisors, but that, in return for the additional burden
of
being required to be
on a stand-by schedule during ostensibly off-duty hours, the representatives
of
other employees
have negotiated additional forms
of
compensation. What different groups
of
employees are
assigned to do during regular working hours may, as the City argues, be an entirely different
matter, but that is not germane to the facts of this case. As determined in PERB Decision
No. HO-U-1023-M, the City's unilaterally adopted stand-by rotation schedule significantly and
adversely affected working conditions during employees' ostensibly off-duty hours, and thus,
24
non-exempt IBEW-represented employees of the City or to stand-by work performed by
employees in nearby municipalities. We reject this argument, as it misstates the factual record,
and is inconsistent with PERB precedent and the policies of the MMBA.
First, we agree with the Decision that, in the absence of notice and meaningful
opportunity to bargain, PMA could not have anticipated that underground supervisors would
be individually assigned to an on-call rotation schedule and required, upon threat of
disciplinary action, to respond to emergencies. As determined in City of Pasadena, supra,
PERB Decision No. HO-U-1023-M, this new procedure differed from the established practice
that existed when the City and PMA negotiated the underground supervisors' compensation.
There is no basis for accepting the City's assertion that the new responsibilities or burdens
imposed by the stand-by rotation schedule were already contemplated and included in the
underground supervisors' negotiated salary structure.
Moreover, this exception misstates the basis for the ALJ's finding of liability in City of
Pasadena, supra, PERB Decision No. HO-U-1023-M and the basis for comparison used in the
Decision's back pay award. The purpose of looking to the compensation structure of other
employees whose employers have similar stand-by schedules was not that the other employees
necessarily perform the same or similar job duties as those performed by the City's
underground supervisors, but that, in return for the additional burden of being required to be
on a stand-by schedule during ostensibly off-duty hours, the representatives of other employees
have negotiated additional forms of compensation. What different groups of employees are
assigned to do during regular working hours may, as the City argues, be an entirely different
matter, but that is not germane to the facts of this case. As determined in PERB Decision
No. HO-U-1023-M, the City's unilaterally adopted stand-by rotation schedule significantly and
adversely affected working conditions during employees' ostensibly off-duty hours, and thus,
24

other employee organizations have negotiated for a similar burden on other employees'
off-duty hours may appropriately be used for determining the amount
of
back pay owed
in
this
case for the City's failure and refusal to bargain with PMA.
The Decision's back pay award is, in principle, no different from the remedy ordered
by PERB and affirmed by the California Court
of
Appeals in Santa Monica CCD, supra,
112 Cal.App.3d 684. In that case, rival employee organizations, the Santa Monica Faculty
Association (Association), and the Santa Monica United Faculty Association (Part-Time
Faculty), were simultaneously involved in salary negotiations with the employer. Both
organizations had filed petitions to represent both full-time and part-time faculty in one
bargaining unit, while the Association also sought certification
of
a smaller bargaining unit that
would exclude part-time faculty. After each organization had prepared and presented its salary
proposals for both full-time and part-time faculty, the employer authorized an 8 percent salary
increase to full-time and part-time faculty, on the condition that both organizations waive all
collective bargaining rights to additional compensation for the following school year. The
Association accepted this proposal, while Part-Time Faculty refused. The employer then
implemented the proposed pay increase for full-time employees, while salaries for part-time
faculty remained frozen. 	Part-Time Faculty filed a charge, alleging that the employer had
violated its duty
of
neutrality by favoring the Association in salary negotiations. PERB held that
by granting pay increases to full-time faculty, while withholding the same increases from part-
time faculty because
of
the refusal to waive collective bargaining rights, the employer had
unlawfully discriminated in favor
of
the Association and against the Part-Time Faculty in
violation
of
the Educational Employment Relations Act (EERA). 	As part
of
the remedy, PERB
4 EERA is codified at section 3540 et seq.
25
what other employee organizations have negotiated for a similar burden on other employees'
off-duty hours may appropriately be used for determining the amount of back pay owed in this
case for the City's failure and refusal to bargain with PMA.
The Decision's back pay award is, in principle, no different from the remedy ordered
by PERB and affirmed by the California Court of Appeals in Santa Monica CCD, supra,
112 Cal.App.3d 684. In that case, rival employee organizations, the Santa Monica Faculty
Association (Association), and the Santa Monica United Faculty Association (Part-Time
Faculty), were simultaneously involved in salary negotiations with the employer. Both
organizations had filed petitions to represent both full-time and part-time faculty in one
bargaining unit, while the Association also sought certification of a smaller bargaining unit that
would exclude part-time faculty. After each organization had prepared and presented its salary
proposals for both full-time and part-time faculty, the employer authorized an 8 percent salary
increase to full-time and part-time faculty, on the condition that both organizations waive all
collective bargaining rights to additional compensation for the following school year. The
Association accepted this proposal, while Part-Time Faculty refused. The employer then
implemented the proposed pay increase for full-time employees, while salaries for part-time
faculty remained frozen. Part-Time Faculty filed a charge, alleging that the employer had
violated its duty of neutrality by favoring the Association in salary negotiations. PERB held that
by granting pay increases to full-time faculty, while withholding the same increases from part-
time faculty because of the refusal to waive collective bargaining rights, the employer had
unlawfully discriminated in favor of the Association and against the Part-Time Faculty in
violation of the Educational Employment Relations Act (EERA)."4
As part of the remedy, PERB
* EERA is codified at section 3540 et seq.
25

the employer to pay the same 8 percent salary increase to part-time faculty which it had
previously agreed to in negotiations with the Association.
While the underlying theories
of
liability are obviously different, the back pay awards in
Santa Monica CCD, supra, 112 Cal.App.3d 684, and the Decision in the present dispute
ultimately rely on the same underlying principles. In Santa Monica CCD, PERB determined that
back pay was appropriate to compensate one group
of
employees who had suffered financial loss
as the result
of
the employer's unfair practices. There was no way
of
knowing with certainty
what Part-Time Faculty might have negotiated with the employer with respect to salary increases
for part-time faculty in the absence
of
the employer's unlawful conduct. However, rather than
leaving the employer's unfair practices unremedied because
of
some degree
of
uncertainty,
PERB looked to similar circumstances, including salary increases the employer had agreed to
of
back pay for the employees directly affected by the unfair practice. The appellate court
rejected the employer's petition and affirmed the remedy ordered by PERB, including the
retroactive back pay award calculated at 8 percent plus interest for part time faculty members.
(Id. at pp. 691-692.)
So it is here. As acknowledged in the Decision, there is no way
of
knowing with
certainty what the City and PMA may have agreed to, had the City fulfilled its bargaining
obligations and provided PMA with notice and opportunity to bargain before changing its
emergency response procedures. However, rather than permitting the employer to evade liability
because
of
uncertainty caused by the employer's own unlawful conduct, and thus leaving an
unfair practice unremedied, the Decision appropriately looked to similar circumstances,
including what the City has previously agreed to with a representative of other employees, and
what other, nearby municipalities have agreed to with the representatives of their employees, to
26
ordered the employer to pay the same 8 percent salary increase to part-time faculty which it had
previously agreed to in negotiations with the Association.
While the underlying theories of liability are obviously different, the back pay awards in
Santa Monica CCD, supra, 112 Cal.App.3d 684, and the Decision in the present dispute
ultimately rely on the same underlying principles. In Santa Monica CCD, PERB determined that
back pay was appropriate to compensate one group of employees who had suffered financial loss
as the result of the employer's unfair practices. There was no way of knowing with certainty
what Part-Time Faculty might have negotiated with the employer with respect to salary increases
for part-time faculty in the absence of the employer's unlawful conduct. However, rather than
leaving the employer's unfair practices unremedied because of some degree of uncertainty,
PERB looked to similar circumstances, including salary increases the employer had agreed to
with an employee organization representing other employees, to compute the appropriate amount
of back pay for the employees directly affected by the unfair practice. The appellate court
rejected the employer's petition and affirmed the remedy ordered by PERB, including the
retroactive back pay award calculated at 8 percent plus interest for part time faculty members.
(Id. at pp. 691-692.)
So it is here. As acknowledged in the Decision, there is no way of knowing with
certainty what the City and PMA may have agreed to, had the City fulfilled its bargaining
obligations and provided PMA with notice and opportunity to bargain before changing its
emergency response procedures. However, rather than permitting the employer to evade liability
because of uncertainty caused by the employer's own unlawful conduct, and thus leaving an
unfair practice unremedied, the Decision appropriately looked to similar circumstances,
including what the City has previously agreed to with a representative of other employees, and
what other, nearby municipalities have agreed to with the representatives of their employees, to
26

the appropriate amount
of
back pay necessary to compensate the underground
supervisors. Because the nature
of
the City's unilateral change has made it impractical to
determine precisely what amount
of
back pay is owed to the affected employees, rather than
leave the City's unlawful conduct partially unremedied, we agree with the Decision's reliance
on reasonable approximations and averages as an appropriate, non-arbitrary alternative method
for computing back pay. (NLRB Compliance,§ 10548.2; see also Intermountain Rural Elec.
Assn., supra, 317 NLRB 588, 590-91.) PERB is expressly authorized by statute to consider the
compensation and negotiated terms and conditions
of
employment
of
other, similarly-situated
employees as a basis for comparison when making fact-finding recommendations at impasse
(EERA, § 3548.2, subd. (b)(4)), and we find nothing objectionable, in principle, to using the
same procedure here, when the absence
of
a negotiated pay rate is itself due to the respondent's
failure and refusal to bargain.
In private-sector labor relations, the NLRB and the federal courts have long held that
any uncertainties as to the appropriate remedy for an unfair labor practice must be resolved
against the respondent whose unlawful conduct made such doubts possible. (Newcor Bay City
Div. ofNewcor, Inc. (2010) 2010 NLRB LEXIS 190, 102-103; International Brotherhood
of
Teamsters, Local Union No. 469 (Coastal Tank Lines) (1997) 323 NLRB
21
0; Cascade
Employers Assn., Inc. (1960) 126 NLRB 1014, 1016; Medo Photo Supply Corp.
v.
NLRB
(1944) 321 U.S. 678, 686-687.) In Fresno County Office
of
Education (1996) PERB Decision
No. 1171, PERB adopted this rule in the context
of
an employer's assertion that a back pay
award should be offset where the employee has failed to mitigate his or her damages. (Id. at
p. 2, fn. 1, citing J H Rutter-Rex Mfg. Co. (1971) 194 NLRB 19, 24.) We see no reason to
limit the rule's application to mitigation of damages issues.
27
determine the appropriate amount of back pay necessary to compensate the underground
supervisors. Because the nature of the City's unilateral change has made it impractical to
determine precisely what amount of back pay is owed to the affected employees, rather than
leave the City's unlawful conduct partially unremedied, we agree with the Decision's reliance
on reasonable approximations and averages as an appropriate, non-arbitrary alternative method
for computing back pay. (NLRB Compliance, $ 10548.2; see also Intermountain Rural Elec.
Assn., supra, 317 NLRB 588, 590-91.) PERB is expressly authorized by statute to consider the
compensation and negotiated terms and conditions of employment of other, similarly-situated
employees as a basis for comparison when making fact-finding recommendations at impasse
(EERA, $ 3548.2, subd. (b)(4)), and we find nothing objectionable, in principle, to using the
same procedure here, when the absence of a negotiated pay rate is itself due to the respondent's
failure and refusal to bargain.
In private-sector labor relations, the NLRB and the federal courts have long held that
any uncertainties as to the appropriate remedy for an unfair labor practice must be resolved
against the respondent whose unlawful conduct made such doubts possible. (Newcor Bay City
Div. of Newcor, Inc. (2010) 2010 NLRB LEXIS 190, 102-103; International Brotherhood of
Teamsters, Local Union No. 469 (Coastal Tank Lines) (1997) 323 NLRB 210; Cascade
Employers Assn., Inc. (1960) 126 NLRB 1014, 1016; Medo Photo Supply Corp. v. NLRB
(1944) 321 U.S. 678, 686-687.) In Fresno County Office of Education (1996) PERB Decision
No. 1171, PERB adopted this rule in the context of an employer's assertion that a back pay
award should be offset where the employee has failed to mitigate his or her damages. (Id. at
p. 2, fn. 1, citing J. H. Rutter-Rex Mfg. Co. (1971) 194 NLRB 19, 24.) We see no reason to
limit the rule's application to mitigation of damages issues.
27

Upon the findings
of
fact and conclusion
of
law in this case, and the entire record,
the Public Employment Relations Board (PERB or Board) concludes that the City
of
Pasadena (City) failed to comply with the order in City
of
Pasadena (2011) PERB Decision
No. HO-U-1023-M, and the September 10, 2012 decision, as amended on September 18, 2012,
by failing to compensate underground supervisors with back pay as ordered.
Pursuant to the Meyers-Milias-Brown Act (MMBA), section 3509(a) and
section 3541.3(i) and (n)
of
the Government Code, the City, its governing board and its
representatives are hereby ORDERED:
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE
POLICIES OF THE MMBA, THE BOARD'S PRIOR ORDER IN CITY OF PASADENA
(2011) PERB DECISION NO. HO-U-1023-M, AND THE SEPTEMBER 10, 2012
DECISION, AS AMENDED ON SEPTEMBER 18, 2012:
1.
	Within fifteen (15) days
of
the service
of
a final decision in this matter, pay the
following underground crew supervisors-Geoff Barsi, Curtis Schultz, Micko White and
Wayne Reigelman-the appropriate amounts
of
back pay owed, as set forth in the Board's
September 10, 2012 administrative decision, plus interest at the rate
of
seven (7) percent per
annum, for each pay period that the affected employees were scheduled to perform stand-by
work on the City's stand-by rotation schedule.
2. 	Within ten (10) workdays of service of a final decision in this matter, post at all
work locations where notices to employees in the City are customarily posted, copies
of
the Notice attached hereto as an Appendix, signed by an authorized agent
of
the City. 	Such
posting shall be maintained for at least thirty (30) consecutive workdays. In addition to
physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the City to communicate with its
28
ORDER	ORDER
Upon the findings of fact and conclusion of law in this case, and the entire record,
the Public Employment Relations Board (PERB or Board) concludes that the City of
Pasadena (City) failed to comply with the order in City of Pasadena (2011) PERB Decision
No. HO-U-1023-M, and the September 10, 2012 decision, as amended on September 18, 2012,
by failing to compensate underground supervisors with back pay as ordered.
Pursuant to the Meyers-Milias-Brown Act (MMBA), section 3509(a) and
section 3541.3(i) and (n) of the Government Code, the City, its governing board and its
representatives are hereby ORDERED:
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE THE
POLICIES OF THE MMBA, THE BOARD'S PRIOR ORDER IN CITY OF PASADENA
(2011) PERB DECISION NO. HO-U-1023-M, AND THE SEPTEMBER 10, 2012
DECISION, AS AMENDED ON SEPTEMBER 18, 2012:
1. 	Within fifteen (15) days of the service of a final decision in this matter, pay the
following underground crew supervisors-Geoff Barsi, Curtis Schultz, Micko White and
Wayne Reigelman-the appropriate amounts of back pay owed, as set forth in the Board's
September 10, 2012 administrative decision, plus interest at the rate of seven (7) percent per
annum, for each pay period that the affected employees were scheduled to perform stand-by
work on the City's stand-by rotation schedule.
2. 	Within ten (10) workdays of service of a final decision in this matter, post at all
work locations where notices to employees in the City are customarily posted, copies of
the Notice attached hereto as an Appendix, signed by an authorized agent of the City. Such
posting shall be maintained for at least thirty (30) consecutive workdays. In addition to
physical posting of paper notices, the Notice shall be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the City to communicate with its
28

The City, its governing board and its representatives shall take reasonable steps to
ensure that the posted Notice is not reduced in size, defaced, altered or covered by any
material.
3. 	Written notification of the City's actions taken to comply with this Order shall
be made to the General Counsel of PERB, or her designee. All reports regarding compliance
with this Order shall be concurrently served on the Pasadena Management Association, or its
representative, pursuant to PERB regulations.
Chair Martinez and Member Huguenin joined in this Decision.
29
employees. The City, its governing board and its representatives shall take reasonable steps to
ensure that the posted Notice is not reduced in size, defaced, altered or covered by any
material.
3. 	Written notification of the City's actions taken to comply with this Order shall
be made to the General Counsel of PERB, or her designee. All reports regarding compliance
with this Order shall be concurrently served on the Pasadena Management Association, or its
representative, pursuant to PERB regulations.
Chair Martinez and Member Huguenin joined in this Decision.
29

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After an investigation in Unfair Practice Case No. LA-CE-574-M, Pasadena
Management Association v. City of Pasadena, in which all parties had the right to participate,
and a review of the entire record in this matter, the Public Employment Relations Board
(PERB or Board) has found that the City of Pasadena (City) failed to comply with the order in
PERB Decision No. HO-U-1023-M, for the City to compensate its underground crew
supervisors with back pay and interest for financial losses suffered as a result of an on-call
rotation schedule, which was unilaterally implemented, in violation of the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3503, 3505 and 3506.
As a result of this conduct, we have been ordered to post this Notice and we will:
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA, THE BOARD'S PRIOR ORDER IN
CITY OF PASADENA (2011) PERB DECISION NO. HO-U-1023-M, AND THE
SEPTEMBER 10, 2012 DECISION, AS AMENDED ON SEPTEMBER 18, 2012:
1. 	Within fifteen (15) days of the service of a final decision in this matter, pay the
following undergrnund crew supervisoiS-Geoff Barsi, Curtis Schultz, Micko White and
Wayne Reigelman-the appropriate amounts of back pay owed, as set forth in the Board's
September 10, 2012 administrative decision, plus interest at the rate of seven (7) percent per
annum, for each pay period that the affected employees were scheduled to perform stand-by
work on the City's stand-by rotation schedule.
Dated: 	CITY OF PASADENA
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
APPENDIX	APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After an investigation in Unfair Practice Case No. LA-CE-574-M, Pasadena
Management Association v. City of Pasadena, in which all parties had the right to participate,
and a review of the entire record in this matter, the Public Employment Relations Board
(PERB or Board) has found that the City of Pasadena (City) failed to comply with the order in
PERB Decision No. HO-U-1023-M, for the City to compensate its underground crew
supervisors with back pay and interest for financial losses suffered as a result of an on-call
rotation schedule, which was unilaterally implemented, in violation of the Meyers-Milias-
Brown Act (MMBA), Government Code sections 3503, 3505 and 3506.
As a result of this conduct, we have been ordered to post this Notice and we will:
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA, THE BOARD'S PRIOR ORDER IN
CITY OF PASADENA (2011) PERB DECISION NO. HO-U-1023-M, AND THE
SEPTEMBER 10, 2012 DECISION, AS AMENDED ON SEPTEMBER 18, 2012:
1 . 	Within fifteen (15) days of the service of a final decision in this matter, pay the
following underground crew supervisors-Geoff Barsi, Curtis Schultz, Micko White and
Wayne Reigelman-the appropriate amounts of back pay owed, as set forth in the Board's
September 10, 2012 administrative decision, plus interest at the rate of seven (7) percent per
annum, for each pay period that the affected employees were scheduled to perform stand-by
work on the City's stand-by rotation schedule.
Dated: 	CITY OF PASADENA
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
PASADENA MANAGEMENT ASSOCIATION,
Charging Party,
V.
UNFAIR PRACTICE
CASE NO. LA-CE-574-M
CITY OF PASADENA,
PROPOSED DECISION
(COMPLIANCE)
(September 10, 2012)
Respondent.
Jeffrey W. Natke, Attorney, for Pasadena Management Association; Bruce A.
Barsook and Jennifer M. Rosner, Attorneys, Liebert Cassidy Whitmore, for the City of
Pasadena.
Before Mary Weiss, Senior Regional Attorney.
PROCEDURAL HISTORY
On November 22, 2011, the Public Employment Relations Board (PERB) issued PERB
Decision No. HO-U-1023-M in the underlying unfair practice case. The Administrative Law
Judge (ALJ) concluded in his Proposed Decision that the City of Pasadena (City) violated the
Meyers-Milias-Brown Act (MMBA), Government Code sections 3503, 3505, and 3506 	on
September 2, 2009, by unilaterally implementing a Stand-By call-out procedure for bargaining
unit members in the Underground division who are represented by the Pasadena Management
Association (Association). The ALJ ordered the City to, inter alia, take certain affirmative
actions designed to effectuate the policies of the MMBA. At section B of the ALJ's order, the
City was required to:
(2) Compensate any Association unit members in the
Underground division for financial losses, if any, that occurred as
a direct result of the City's unlawful unilateral action. Any
financial losses should be augmented with interest at a rate of
seven percent per annum; [and] (3) Rescind any discipline issued
he MMBA is codified at Government Code section 3500 et seq.
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
PASADENA MANAGEMENT ASSOCIATION,
Charging Party,
v .
CITY OF PASADENA,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-574-M
PROPOSED DECISION
(COMPLIANCE)
(September 10, 2012)
Appearances:	Appearances: Jeffrey W. Natke, Attorney, for Pasadena Management Association; Bruce A.
Barsook and Jennifer M. Rosner, Attorneys, Liebert Cassidy Whitmore, for the City of
Pasadena.
Before Mary Weiss, Senior Regional Attorney.
PROCEDURAL HISTORY
On November 22, 2011, the Public Employment Relations Board (PERB) issued PERB
Decision No. HO-U-1023-M in the underlying unfair practice case. The Administrative Law
Judge (ALJ) concluded in his Proposed Decision that the City of Pasadena (City) violated the
Meyers-Milias-Brown Act (MMBA), Government Code sections 3503, 3505, and 35061
' on
September 2, 2009, by unilaterally implementing a Stand-By call-out procedure for bargaining
unit members in the Underground division who are represented by the Pasadena Management
Association (Association). The ALJ ordered the City to, inter alia, take certain affirmative
actions designed to effectuate the policies of the MMBA. At section B of the ALJ's order, the
City was required to:
(2) Compensate any Association unit members in the
Underground division for financial losses, if any, that occurred as
a direct result of the City's unlawful unilateral action. Any
financial losses should be augmented with interest at a rate of
seven percent per annum; [and] (3) Rescind any discipline issued
1
The MMBA is codified at Government Code section 3500 et seq.	T

Association unit members in the Underground division and
expunge any records of such discipline ....
On November 23, 2011, the City filed its initial statement of compliance and on
December 8, 2011, PERB notified the City that its statement did not provide any information
establishing that the City had complied with sections B.2 and B.3 of the Order.
On December 20, 2011, the City responded and stated as follows, "B2. There were no
financial losses that occurred as a result of the City's actions. 	[The Association] did not
present any quantitative evidence or testimony as to monetary losses for being placed on a
rotation schedule. Indeed, any such damages would be speculative. B3. No discipline was
issued to [Association] members as a result of the City's implementation of the rotation
schedule."
On January 4, 2012, the Association filed a statement with PERB that provided, in
relevant part: "[T]here were four underground crew supervisors who were forced to serve on
Stand-By under the unlawfully imposed policy. Those members are Micko White, Wayne
Reigelman[], Curtis Schultz, and Geoff Barsi .... Compliance has not been achieved, and will
not be achieved, until Mr. White, Mr. Reigelman, Mr. Schultz, and Mr. Barsi are provided
time-and-a-half compensation (i.e., their overtime rate) for all off-duty hours served on Stand-
By, plus 7% interest."
On March 8, 2012, PERB conducted a status conference with the parties to enable the
Board agent to gather infonnation regarding whether compliance had been achieved.
On April 23, 2012, the Parties filed a Joint Stipulation of Facts listing the amount of
hours each of the four affected employees had been placed on Stand-By duty while the policy
was in place. On May 1, 2012, the Parties filed an amended Joint Stipulation of Facts
stipulating as to the pay rates for each affected employee.
2
to Association unit members in the Underground division and
expunge any records of such discipline....
On November 23, 2011, the City filed its initial statement of compliance and on
December 8, 2011, PERB notified the City that its statement did not provide any information
establishing that the City had complied with sections B.2 and B.3 of the Order.
On December 20, 2011, the City responded and stated as follows, "B2. There were no
financial losses that occurred as a result of the City's actions. [The Association] did not
present any quantitative evidence or testimony as to monetary losses for being placed on a
rotation schedule. Indeed, any such damages would be speculative. B3. No discipline was
issued to [Association] members as a result of the City's implementation of the rotation
schedule."
On January 4, 2012, the Association filed a statement with PERB that provided, in
relevant part: "[TJhere were four underground crew supervisors who were forced to serve on
Stand-By under the unlawfully imposed policy. Those members are Micko White, Wayne
Reigelman[], Curtis Schultz, and Geoff Barsi....Compliance has not been achieved, and will
not be achieved, until Mr. White, Mr. Reigelman, Mr. Schultz, and Mr. Barsi are provided
time-and-a-half compensation (i.e., their overtime rate) for all off-duty hours served on Stand-
By, plus 7% interest."
On March 8, 2012, PERB conducted a status conference with the parties to enable the
Board agent to gather information regarding whether compliance had been achieved.
On April 23, 2012, the Parties filed a Joint Stipulation of Facts listing the amount of
hours each of the four affected employees had been placed on Stand-By duty while the policy
was in place. On May 1, 2012, the Parties filed an amended Joint Stipulation of Facts
stipulating as to the pay rates for each affected employee.
2

case was assigned to the undersigned for the purpose of making both legal and
factual determinations, and identifying the steps necessary for the City to achieve compliance
with section B.2 of the ALJ's Order. The Parties agreed to submit the matter for determination
based on the Parties' briefs filed on or about June 26, 2012.
FINDINGS OF FACT
The ALJ's Order required the City to: "Compensate any Association unit members in
the Underground division for financial losses, if any, that occurred as a direct result of the
City's unlawful unilateral action. Any financial losses should be augmented with interest at a
rate of seven percent per annum."
The parties' April 23, 2012 stipulation agreed that during the period the Stand-By
policy was in place, Mr. Barsi was placed on Stand-By duty for 2,639 hours, Mr. Schultz was
placed on Stand-By duty for 2,296.2 hours, I'.1r. \Vhite was placed on Stand-By duty for 2,592
hours, and Mr. Reigelman was placed on Stand-By duty for 2,509.7 hours. The parties' May 1,
2012 stipulation agreed that each of the four affected employees was being paid at the regular
rate of pay of $56.2518 per hour on September 2, 2009, the date the City unilaterally imposed
the Stand-By policy. On January 4, 2010, each of the four affected employees began earning a
regular rate of pay of $58.5019 per hour.
The Association contends that the affected employees suffered a significant hardship
when they were placed on Stand-By duty because the new policy essentially placed the
assigned employee on "house arrest." The performance of Stand-By duty included remaining
close to the City facilities, remaining in a work ready state, maintaining the pager, and
responding to pages. The employee could not travel far and had to limit his activities so that
he would be ready for work and could respond within a certain time. Such availability and
3
The case was assigned to the undersigned for the purpose of making both legal and
factual determinations, and identifying the steps necessary for the City to achieve compliance
with section B.2 of the ALJ's Order. The Parties agreed to submit the matter for determination
based on the Parties' briefs filed on or about June 26, 2012.
FINDINGS OF FACT
The parties' April 23, 2012 stipulation agreed that during the period the Stand-By
policy was in place, Mr. Barsi was placed on Stand-By duty for 2,639 hours, Mr. Schultz was
placed on Stand-By duty for 2,296.2 hours, Mr. White was placed on Stand-By duty for 2,592
hours, and Mr. Reigelman was placed on Stand-By duty for 2,509.7 hours. The parties' May 1,
2012 stipulation agreed that each of the four affected employees was being paid at the regular
rate of pay of $56.2518 per hour on September 2, 2009, the date the City unilaterally imposed
the Stand-By policy. On January 4, 2010, each of the four affected employees began earning a
regular rate of pay of $58.5019 per hour.
The ALJ's Order required the City to: "Compensate any Association unit members in
the Underground division for financial losses, if any, that occurred as a direct result of the
City's unlawful unilateral action. Any financial losses should be augmented with interest at a
rate of seven percent per annum."
The Association contends that the affected employees suffered a significant hardship
when they were placed on Stand-By duty because the new policy essentially placed the
assigned employee on "house arrest." The performance of Stand-By duty included remaining
close to the City facilities, remaining in a work ready state, maintaining the pager, and
responding to pages. The employee could not travel far and had to limit his activities so that
he would be ready for work and could respond within a certain time. Such availability and

was mandatory because an employee's failure to perform Stand-By duty was a basis
for discipline under the new policy.
The Association contends each affected employee is entitled to overtime (1.5 times the
regular pay rate) for each hour the employee served on Stand-By duty. Alternatively, the
Association contends affected employees should be compensated at the regular pay rate or at
rates similar to those paid for similar Stand-By work in nearby municipalities or other City
bargaining units. In support of the latter contention, the Association provided copies of Stand-
By provisions contained in the Burbank and Glendale Memoranda of Understanding (MOUs)
as well as Pasadena's MOU with the International Brotherhood of Electrical Workers, Local 18
(IBEW) represented bargaining unit.
The City contends no monetary damages may be awarded because any award now
would be speculative since the parties never established how Stand-By duty hours would be
compensated. The City also contends no monetary award should be made because bargaining
unit members never received compensation for Stand-By under the prior policy and because
the affected employees are already compensated in their salary structure.
ISSUES
(1) 	Did any unit members represented by the Association suffer financial losses as a
direct result of the City's unlawful unilateral action?
(2) 	If financial losses were suffered, what is the proper amount of compensation?
CONCLUSIONS OF LAW
Financial Losses
The normal remedy for a unilateral change is to restore the status quo by rescinding the
change and making affected employees whole for any losses suffered as a result of the change.
(California State Employees Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th
4
readiness was mandatory because an employee's failure to perform Stand-By duty was a basis
for discipline under the new policy.
The Association contends each affected employee is entitled to overtime (1.5 times the
regular pay rate) for each hour the employee served on Stand-By duty. Alternatively, the
Association contends affected employees should be compensated at the regular pay rate or at
rates similar to those paid for similar Stand-By work in nearby municipalities or other City
bargaining units. In support of the latter contention, the Association provided copies of Stand-
By provisions contained in the Burbank and Glendale Memoranda of Understanding (MOUs)
as well as Pasadena's MOU with the International Brotherhood of Electrical Workers, Local 18
(IBEW) represented bargaining unit.
The City contends no monetary damages may be awarded because any award now
would be speculative since the parties never established how Stand-By duty hours would be
compensated. The City also contends no monetary award should be made because bargaining
unit members never received compensation for Stand-By under the prior policy and because
the affected employees are already compensated in their salary structure.
ISSUES
(1) Did any unit members represented by the Association suffer financial losses as a
direct result of the City's unlawful unilateral action?
(2) If financial losses were suffered, what is the proper amount of compensation?
CONCLUSIONS OF LAW
Financial Losses
The normal remedy for a unilateral change is to restore the status quo by rescinding the
change and making affected employees whole for any losses suffered as a result of the change.
(California State Employees Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th
4

946; accord San Jacinto Unified School District (1994) PERB Decision No. 1078, p. 38
[San Jacinto] ["It is also appropriate to make employees whole for any losses, economic or
otherwise, suffered as a result of the District's unilateral actions"].) An order for back pay will
be made part of a "make whole" remedy only if the record establishes that the unilateral
change caused employees to suffer a financial loss. (See, e.g., Dublin Prof'! Fire Fighters,
Local 1885 v. Valley Community Svcs. Dist. (1975) 45 Cal.App.3d 116, 119 [Dublin]; Long
Beach Community College District (2009) PERB Decision No. 2002 [Long Beach];
Desert Sands Unified School District (2004) PERB Decision No. 1682 [Desert Sands];
San Jacinto, supra, PERB Decision No. 1078.)
In Long Beach, supra, PERB Decision No. 2002, the employer unlawfully imposed a
4/10 work schedule and the ALJ properly ordered the employer to provide back pay to
employees who used vacation credits or compensatory time to avoid working a ten hour day.
(Id. at p. 6.) However, the ALJ refused to award overtime because the record did not establish
that the employer eliminated or reduced overtime hours to which the employees otherwise
would have been entitled. (Id. at p. 18.) 	In San Jacinto, supra, PERB Decision No. 1078,
the employer was ordered to provide back pay when employees lost the opportunity to work
hours the employees were entitled to work.
In Desert Sands, supra, PERB Decision No. 1682, the employer unlawfully transferred
overtime work to other employees. The Board ordered the employer to cease and desist, but
did not order back pay to the employees affected by the unlawful transfer of overtime work
because neither the work hours nor wages of the affected employees were changed because of
the transferred work. (Ibid.) 	In addition, the ALJ noted in her proposed decision that, the
affected employees had even more work after the unlawful transfer. (Ibid.)
5
923, 946; accord San Jacinto Unified School District (1994) PERB Decision No. 1078, p. 38
[San Jacinto] ["It is also appropriate to make employees whole for any losses, economic or
otherwise, suffered as a result of the District's unilateral actions"].) An order for back pay will
be made part of a "make whole" remedy only if the record establishes that the unilateral
change caused employees to suffer a financial loss. (See, e.g., Dublin Profl Fire Fighters,
Local 1885 v. Valley Community Sves. Dist. (1975) 45 Cal.App.3d 116, 119 [Dublin]; Long
Beach Community College District (2009) PERB Decision No. 2002 [Long Beach];
Desert Sands Unified School District (2004) PERB Decision No. 1682 [Desert Sands];
San Jacinto, supra, PERB Decision No. 1078.)
In Long Beach, supra, PERB Decision No. 2002, the employer unlawfully imposed a
4/10 work schedule and the ALJ properly ordered the employer to provide back pay to
employees who used vacation credits or compensatory time to avoid working a ten hour day.
(Id. at p. 6.) However, the ALJ refused to award overtime because the record did not establish
that the employer eliminated or reduced overtime hours to which the employees otherwise
would have been entitled. (Id. at p. 18.) In San Jacinto, supra, PERB Decision No. 1078,
the employer was ordered to provide back pay when employees lost the opportunity to work
hours the employees were entitled to work.
In Desert Sands, supra, PERB Decision No. 1682, the employer unlawfully transferred
overtime work to other employees. The Board ordered the employer to cease and desist, but
did not order back pay to the employees affected by the unlawful transfer of overtime work
because neither the work hours nor wages of the affected employees were changed because of
the transferred work. (Ibid.) In addition, the ALJ noted in her proposed decision that, the
affected employees had even more work after the unlawful transfer. (Ibid.)
5

City contends the affected employees in this case are like the employees in the
cases of Dublin Fire Fighters, supra, 45 Cal.App.3d 116, Long Beach, supra, PERB Decision
No. 2002, and Desert Sands, supra, PERB Decision No. 1682, and should be similarly denied
monetary compensation. The facts at issue here and the facts surrounding the cases cited by
the City, however, are distinguishable. In the cases cited by the City, the employees suffered
the lost opportunity to perform work during the period that the employer maintained a
unilaterally imposed policy. The employees did not actually perform any work for which they
were not paid. In contrast, the affected employees here did not have work taken away, nor did
they lose an opportunity to work. 	Instead, the affected employees here were forced to perform
mandatory additional duties for which they were not paid. The performance of Stand-By duty
included remaining close to the City facilities, remaining in a work ready state, maintaining the
pager, and responding to pages. Failure to respond while on mandatory Stand-By duty was
cause for discipline. It follows that the employees here are distinct from employees in the
above-cited cases who lost work opportunities. Given this distinction, the Board's and Court
of Appeal's refusal to award back pay or monetary damages where employees lost work
opportunities has no application to the facts at issue here.
Certainly the employees here performed a service when they were placed on Stand-By
duty and neither party disputes the fact that the employees were not paid. Indeed, over the 27
months the unilaterally imposed Stand-By policy was in place, each affected employee
performed thousands of hours of Stand-By duty without pay. Performance of duties without
pay is a financial loss.
Proper Compensation for Financial Loss
The City contends that absent negotiation, a back pay award for Stand-By time would
be speculative and uncertain, and for this reason there can be no award of monetary damages.
6
The City contends the affected employees in this case are like the employees in the
cases of Dublin Fire Fighters, supra, 45 Cal.App.3d 116, Long Beach, supra, PERB Decision
No. 2002, and Desert Sands, supra, PERB Decision No. 1682, and should be similarly denied
monetary compensation. The facts at issue here and the facts surrounding the cases cited by
the City, however, are distinguishable. In the cases cited by the City, the employees suffered
the lost opportunity to perform work during the period that the employer maintained a
unilaterally imposed policy. The employees did not actually perform any work for which they
were not paid. In contrast, the affected employees here did not have work taken away, nor did
they lose an opportunity to work. Instead, the affected employees here were forced to perform
mandatory additional duties for which they were not paid. The performance of Stand-By duty
included remaining close to the City facilities, remaining in a work ready state, maintaining the
pager, and responding to pages. Failure to respond while on mandatory Stand-By duty was
cause for discipline. It follows that the employees here are distinct from employees in the
above-cited cases who lost work opportunities. Given this distinction, the Board's and Court
of Appeal's refusal to award back pay or monetary damages where employees lost work
opportunities has no application to the facts at issue here.
Certainly the employees here performed a service when they were placed on Stand-By
duty and neither party disputes the fact that the employees were not paid. Indeed, over the 27
months the unilaterally imposed Stand-By policy was in place, each affected employee
performed thousands of hours of Stand-By duty without pay. Performance of duties without
pay is a financial loss.
Proper Compensation for Financial Loss
The City contends that absent negotiation, a back pay award for Stand-By time would
be speculative and uncertain, and for this reason there can be no award of monetary damages.
6

City's "uncertainty" defense must be rejected for the simple reason that it was the City
itself that implemented the Stand-By policy without providing the Association with notice and
opportunity to negotiate the policy. Had the City negotiated with the Association regarding the
policy, the parties would have had the opportunity to negotiate an appropriate rate of
compensation for serving on Stand-By duty. The City's conduct in imposing the new policy
without meeting and conferring with the Association, which the ALJ found to be in violation of
the MMBA, led to the lack of an established rate of pay. The lack of an established rate of pay
resulting solely from the City's unlawful conduct may not now be relied upon by the City to
support its proposition that no back pay should be awarded. 	Under equitable principles, the
City's "unclean hands" must prevent it from now taking advantage of its own refusal to
negotiate and the Association should not be excluded from recovery because of the employer's
unlawful conduct. (See, e.g., Small v. Avanti Health Sys. (9th Cir. 2011) 661 F.3d 1180,1197
[the Ninth Circuit Court of Appeal rejected the employer's argument that a remedy would be
uncertain and prejudicial because that argument would lead to the conclusion that the court
could never order parties to bargain in good faith. The court held that the union should not
bear the burden ofrecovering from the employer's illegal activities and weighing these
competing interests, the balance of equities favored the relief sought by the union]. )
The parties' failure to reach agreement over what constitutes the proper compensation
does not bar PERB from determining the proper remedy. ( Corning Union High School District
(1984) PERB Decision No. 399 [Corning].) In Corning, the Board stated the ALJ "erred in
finding that the parties' failure to negotiate a fixed formula compensating employees for their
lost preparation periods precludes compensation." (Id. at p. 8.) The Board ordered the
employer to restore the status quo ante by granting each employee paid time off in an amount
It is appropriate for the Board to take guidance from federal labor law, where statutory
principles are similar. (Firefighters v. City of Vallejo (1974) 12 Cal.3d 608.)
7
The City's "uncertainty" defense must be rejected for the simple reason that it was the City
itself that implemented the Stand-By policy without providing the Association with notice and
opportunity to negotiate the policy. Had the City negotiated with the Association regarding the
policy, the parties would have had the opportunity to negotiate an appropriate rate of
compensation for serving on Stand-By duty. The City's conduct in imposing the new policy
without meeting and conferring with the Association, which the ALJ found to be in violation of
the MMBA, led to the lack of an established rate of pay. The lack of an established rate of pay
resulting solely from the City's unlawful conduct may not now be relied upon by the City to
support its proposition that no back pay should be awarded. Under equitable principles, the
City's "unclean hands" must prevent it from now taking advantage of its own refusal to
negotiate and the Association should not be excluded from recovery because of the employer's
unlawful conduct. (See, e.g., Small v. Avanti Health Sys. (9th Cir. 2011) 661 F.3d 1180,1197
[the Ninth Circuit Court of Appeal rejected the employer's argument that a remedy would be
uncertain and prejudicial because that argument would lead to the conclusion that the court
could never order parties to bargain in good faith. The court held that the union should not
bear the burden of recovering from the employer's illegal activities and weighing these
competing interests, the balance of equities favored the relief sought by the union].)2
The parties' failure to reach agreement over what constitutes the proper compensation
does not bar PERB from determining the proper remedy. (Corning Union High School District
(1984) PERB Decision No. 399 [Corning].) In Corning, the Board stated the ALJ "erred in
finding that the parties' failure to negotiate a fixed formula compensating employees for their
lost preparation periods precludes compensation." (Id. at p. 8.) The Board ordered the
employer to restore the status quo ante by granting each employee paid time off in an amount
2
It is appropriate for the Board to take guidance from federal labor law, where statutory
principles are similar. (Firefighters v. City of Vallejo (1974) 12 Cal.3d 608.)
7

to the amount of time lost as a result of the unilateral change, with the parties to
agree as to the manner in which such time off will be granted, or, if the employee was no
longer in the employer's employ or the parties could not agree over the manner, employees
would receive monetary compensation commensurate with the additional hours worked. 	(Id. at
p. 16.)
It is impossible to know with certainty what amount of compensation the parties may
have agreed to had they participated in negotiations as required by law. The Association
contends the rate of pay should be the overtime rate, the regular pay rate, or a rate similar to
those paid in other bargaining units and nearby municipalities. The City does not suggest any
amount or method for calculating a rate of pay for hours employees worked on Stand-By duty.
The objective in determining back pay is to reconstruct as accurately as possible what
employment and earnings the employee would have had during the back pay period had there
not been an unlawful action. (NLRB Case Handling Manual, Part Three, Compliance
Proceedings,§ 10540 [NLRB Compliance].) The detennination of back pay is not based on an
unattainable standard of certainty, rather, it must merely be based on a reasonable method and
reasonable factual conclusions. (Ibid.) Where the parties offer alternative formulas for
determining back pay, the Board must decide which is the most accurate method. (Atlantic
Veal & Lamb, Inc. (2010) 355 NLRB No. 38, fn. 5.) It should be easy to understand and to
apply. (NLRB Compliance, supra, at§ 10540.1.) The method selected for calculating back
pay must depend on the facts and circumstances of the particular case. (Ibid.) Average hours
or earnings and the consideration of earnings of comparable employees is proper. (Id., at §
10540.3.) Back pay must also be based on changes in wage rates or other compensation that
take place during the back pay period. (Ibid.) The Board is required only to utilize a
8
equivalent to the amount of time lost as a result of the unilateral change, with the parties to
agree as to the manner in which such time off will be granted, or, if the employee was no
longer in the employer's employ or the parties could not agree over the manner, employees
would receive monetary compensation commensurate with the additional hours worked. (Id. at
p. 16.)
It is impossible to know with certainty what amount of compensation the parties may
have agreed to had they participated in negotiations as required by law. The Association
contends the rate of pay should be the overtime rate, the regular pay rate, or a rate similar to
those paid in other bargaining units and nearby municipalities. The City does not suggest any
amount or method for calculating a rate of pay for hours employees worked on Stand-By duty.
The objective in determining back pay is to reconstruct as accurately as possible what
employment and earnings the employee would have had during the back pay period had there
not been an unlawful action. (NLRB Case Handling Manual, Part Three, Compliance
Proceedings, $ 10540 [NLRB Compliance].) The determination of back pay is not based on an
unattainable standard of certainty, rather, it must merely be based on a reasonable method and
reasonable factual conclusions. (Ibid.) Where the parties offer alternative formulas for
determining back pay, the Board must decide which is the most accurate method. (Atlantic
Veal & Lamb, Inc. (2010) 355 NLRB No. 38, fn. 5.) It should be easy to understand and to
apply. (NLRB Compliance, supra, at $ 10540.1.) The method selected for calculating back
pay must depend on the facts and circumstances of the particular case. (Ibid.) Average hours
or earnings and the consideration of earnings of comparable employees is proper. (Id., at $
10540.3.) Back pay must also be based on changes in wage rates or other compensation that
take place during the back pay period. (Ibid.) The Board is required only to utilize a

formula designed to produce a reasonable approximation of what is owed. (Great
Lakes Chemical Corp (1997) 323 NLRB 749.)
The City draws a comparison between employees affected under the Stand-By policy
and bargaining unit employees represented by IBEW, arguing that affected employees are
already compensated because they have a City provided vehicle to take home and use if they
need to respond while on Stand-By. 	IBEW represented employees, on the other hand, as non-
exempt employees, must be paid time and a half when they are called out to an emergency,
they must respond within 15 minutes, and they do not have a City provided vehicle. The City
contends affected employees receive a higher base salary than exempt IBEW represented
employees as a negotiated benefit and that the lack of Stand-By pay is part of affected
employees' negotiated salary structure. The City's argument is unpersuasive because the City
provides no evidence demonstrating that the i\~ssociation had knowledge that the City was
going to implement a mandatory Stand-By policy when the parties last negotiated the affected
employees' rates of pay. Without evidence that the Association had knowledge that the
affected employees would be subject to the mandatory Stand-By policy, it is not possible that
the obligation to perform duties under the mandatory Stand-By rotation was part of the
affected employees' negotiated salary structure.
Overtime Pay
In support of its argument that overtime is the appropriate rate of pay, the Association
relies on PERB's decision in Oakland Unified School District (1983) PERB Decision No. 367.
There, the employer unilaterally removed overtime work and PERB ordered the employer to
compensate affected employees at the overtime rate for all overtime hours they would have
worked had it not been for the unilateral change. (Ibid.)
9
nonarbitrary formula designed to produce a reasonable approximation of what is owed. (Great
Lakes Chemical Corp (1997) 323 NLRB 749.)
The City draws a comparison between employees affected under the Stand-By policy
and bargaining unit employees represented by IBEW, arguing that affected employees are
already compensated because they have a City provided vehicle to take home and use if they
need to respond while on Stand-By. IBEW represented employees, on the other hand, as non-
exempt employees, must be paid time and a half when they are called out to an emergency,
they must respond within 15 minutes, and they do not have a City provided vehicle. The City
contends affected employees receive a higher base salary than exempt IBEW represented
employees as a negotiated benefit and that the lack of Stand-By pay is part of affected
employees' negotiated salary structure. The City's argument is unpersuasive because the City
provides no evidence demonstrating that the Association had knowledge that the City was
going to implement a mandatory Stand-By policy when the parties last negotiated the affected
employees' rates of pay. Without evidence that the Association had knowledge that the
affected employees would be subject to the mandatory Stand-By policy, it is not possible that
the obligation to perform duties under the mandatory Stand-By rotation was part of the
affected employees' negotiated salary structure.
Overtime Pay
In support of its argument that overtime is the appropriate rate of pay, the Association
relies on PERB's decision in Oakland Unified School District (1983) PERB Decision No. 367.
There, the employer unilaterally removed overtime work and PERB ordered the employer to
compensate affected employees at the overtime rate for all overtime hours they would have
worked had it not been for the unilateral change. (Ibid.)
9

case does not involve the removal of overtime work. While it is true, as the
Association contends, that Stand-By hours were in addition to regular hours, and as such may
have resulted in "overtime" under an analysis of hours worked per day or week in excess of the
regular time limits, nothing in the parties' stipulation or the order provides evidence of when
Stand-By hours were accrued in addition to regular hours, so it is not possible from the record
to determine how many hours, if any, devoted to the performance of Stand-By duty would have
been entitled to an overtime rate. 	Even if such evidence were provided, there is no precedent
or other evidence demonstrating Stand-By hours, as a rule or example, have been paid at an
overtime rate.
Regular Pay
In support of its argument that the regular pay rate is the appropriate compensation, the
Association relies on Corning, supra, PERB Decision No. 399, wherein affected employees
were awarded time off or regular pay for the unlawfully removed preparation hours. 	Corning
involved a unilateral policy where teachers were forced to give up preparation hours and
instead had to teach additional classes during their former preparation time. The Board
accordingly awarded the teachers regular pay for the lost preparation hours. (Ibid.)
The facts in Corning, supra, PERB Decision No. 399, are similar to the facts here in
that the employees had to perfom1 extra work. However, the facts here are unlike the facts
under Corning to the extent the facts here do not involve the unlawful removal of a fonnerly
compensated time period. Where the court in Corning could look at the preparation time pay
that existed prior to the employer's imposition of an unlawful unilateral policy, there is no such
guidance here. There is simply no Board precedent or other evidence demonstrating Stand-By
hours, as a rule or example, have been paid at a regular time rate.
This case does not involve the removal of overtime work. While it is true, as the
Association contends, that Stand-By hours were in addition to regular hours, and as such may
have resulted in "overtime" under an analysis of hours worked per day or week in excess of the
regular time limits, nothing in the parties' stipulation or the order provides evidence of when
Stand-By hours were accrued in addition to regular hours, so it is not possible from the record
to determine how many hours, if any, devoted to the performance of Stand-By duty would have
been entitled to an overtime rate. Even if such evidence were provided, there is no precedent
or other evidence demonstrating Stand-By hours, as a rule or example, have been paid at an
overtime rate.
Regular Pay
In support of its argument that the regular pay rate is the appropriate compensation, the
Association relies on Corning, supra, PERB Decision No. 399, wherein affected employees
were awarded time off or regular pay for the unlawfully removed preparation hours. Corning
involved a unilateral policy where teachers were forced to give up preparation hours and
instead had to teach additional classes during their former preparation time. The Board
accordingly awarded the teachers regular pay for the lost preparation hours. (Ibid.)
The facts in Corning, supra, PERB Decision No. 399, are similar to the facts here in
that the employees had to perform extra work. However, the facts here are unlike the facts
under Corning to the extent the facts here do not involve the unlawful removal of a formerly
compensated time period. Where the court in Corning could look at the preparation time pay
that existed prior to the employer's imposition of an unlawful unilateral policy, there is no such
guidance here. There is simply no Board precedent or other evidence demonstrating Stand-By
hours, as a rule or example, have been paid at a regular time rate.
10

Regular Pay Rate for Hours Served on Stand-By Duty
In Glendale, Stand-By is paid under the MOU at a rate equal to 35% of the regular rate
for each hour served on Stand-By.
The MOU between the City of Glendale and the Glendale Management Association,
effective July 1, 2010 through June 30, 2011 for General Managers, July 1, 2006 through June
30, 2014 for Sworn Fire Managers and July 1, 2007 through June 30, 2011 for Sworn Police
Managers, provides the following Stand-By provisions in Article III:
B. 	Stand-By Assignment - Glendale Water & Power
(General Managers)
1. 	Payment
Glendale Water & Power General Managers
assigned to off duty Stand-By assignment,
excluding Water Section employees assigned to
Water Stand-By duty, shall be paid an assignment
extra pay equal to 35% of their hourly rate of pay
for each hour on Stand-By during the hours
between the end of the nonnal field work schedule
and the start of the next normal field work
schedule.
2. 	Water Assignment Pay
Glendale Water & Power General Managers in the
classification of Water System Supervisor II shall
not be entitled to Stand-By pay as defined in this
section. In lieu of Stand-By pay, Water System
Supervisor II shall receive an assignment pay, as
defined in Article Two.
C. 	Stand-By Assignment Limitations
1. 	Limitations
Eligible General Managers shall receive Stand-By
pay only for those hours on Stand-By assignment
duty and shall not receive Stand-By pay for any
overtime worked during those assigned Stand-By
hours.
2. 	Non-Work Time
It is understood that such time on Stand-By
assignment is non-work time for the purposes of
determining overtime compensation.
3. 	Full and Entire Compensation
Except as otherwise provided for in this article,
this compensation shall represent full and entire
compensation for Stand-By assignment.
11
35% Regular Pay Rate for Hours Served on Stand-By Duty
In Glendale, Stand-By is paid under the MOU at a rate equal to 35% of the regular rate
for each hour served on Stand-By.
The MOU between the City of Glendale and the Glendale Management Association,
effective July 1, 2010 through June 30, 2011 for General Managers, July 1, 2006 through June
30, 2014 for Sworn Fire Managers and July 1, 2007 through June 30, 2011 for Sworn Police
Managers, provides the following Stand-By provisions in Article III:
B. 	Stand-By Assignment - Glendale Water & Power
(General Managers)
1 . 	Payment
Glendale Water & Power General Managers
assigned to off duty Stand-By assignment,
excluding Water Section employees assigned to
Water Stand-By duty, shall be paid an assignment
extra pay equal to 35% of their hourly rate of pay
for each hour on Stand-By during the hours
between the end of the normal field work schedule
and the start of the next normal field work
schedule.
2. 	Water Assignment Pay
Glendale Water & Power General Managers in the
classification of Water System Supervisor II shall
not be entitled to Stand-By pay as defined in this
section. In lieu of Stand-By pay, Water System
Supervisor II shall receive an assignment pay, as
defined in Article Two.
C. 	Stand-By Assignment Limitations
1 . 	Limitations
Eligible General Managers shall receive Stand-By
pay only for those hours on Stand-By assignment
duty and shall not receive Stand-By pay for any
overtime worked during those assigned Stand-By
hours .
2 . 	Non-Work Time
It is understood that such time on Stand-By
assignment is non-work time for the purposes of
determining overtime compensation.
3. 	Full and Entire Compensation
Except as otherwise provided for in this article,
this compensation shall represent full and entire
compensation for Stand-By assignment.
11

Pay for Specified Number of Hours for Each Day Assigned to Stand-By Duty
The Stand-By provisions contained in the Pasadena IBEW MOU and the Burbank
MOU provide Stand-By pay at the regular rate of pay for a specified number of hours
depending on which day of the week the employee was on Stand-By: two hours ofregular pay
to employees on Stand-By on a weekday, three hours of regular pay for a Saturday, and four
hours for a Sunday in Pasadena's IBEW Bargaining Unit and in Burbank.
The July 1, 2006 to June 30, 2010 MOU between the City of Pasadena and IBEW
provides the following Stand-By provisions for bargaining unit employees who, notably, are
supervised by the underground supervisors at issue herein:
D. 	Stand-By pay
Within 30 days of the City Council's adoption of this
Memorandum of Understanding, Stand-By crews will be
established to provide a guarantee that, in the event there
is a problem on the electrical distribution system or street
light and traffic control systems, there will be qualified
personnel available to respond to system outages or
emergencies. Stand-By crews will be formed on a
volunteer basis. However, this program will only be
implemented in those departments in which management
determines that a sufficient number of employees sign up
for the program. Once an employee signs up to be on
Stand-By, the employee must remain on Stand-By for a
twelve month period and comply with the procedures/
policies that have been established for the program. Prior
to implementing the Stand-By program, Management will
provide a copy of the proposed stand-by procedures and,
upon request, meet and discuss any concerns the Union
may have regarding the proposed procedures.
Employees on Stand-By will receive compensation as
follows:
Two (2) hours ofregular pay for being on Stand-By on a
week day;
Three (3) hours ofregular pay for being on Stand-By on
Saturday or on the employee's scheduled 9/80 day off;
Four (4) hours ofregular pay for being on Stand-By on a
Sunday or on a City recognized holiday.
12
Regular Pay for Specified Number of Hours for Each Day Assigned to Stand-By Duty
The Stand-By provisions contained in the Pasadena IBEW MOU and the Burbank
MOU provide Stand-By pay at the regular rate of pay for a specified number of hours
depending on which day of the week the employee was on Stand-By: two hours of regular pay
to employees on Stand-By on a weekday, three hours of regular pay for a Saturday, and four
hours for a Sunday in Pasadena's IBEW Bargaining Unit and in Burbank.
The July 1, 2006 to June 30, 2010 MOU between the City of Pasadena and IBEW
provides the following Stand-By provisions for bargaining unit employees who, notably, are
supervised by the underground supervisors at issue herein:
D. 	Stand-By pay
Within 30 days of the City Council's adoption of this
Memorandum of Understanding, Stand-By crews will be
established to provide a guarantee that, in the event there
is a problem on the electrical distribution system or street
light and traffic control systems, there will be qualified
personnel available to respond to system outages or
emergencies. Stand-By crews will be formed on a
volunteer basis. However, this program will only be
implemented in those departments in which management
determines that a sufficient number of employees sign up
for the program. Once an employee signs up to be on
Stand-By, the employee must remain on Stand-By for a
twelve month period and comply with the procedures/
policies that have been established for the program. Prior
to implementing the Stand-By program, Management will
provide a copy of the proposed stand-by procedures and,
upon request, meet and discuss any concerns the Union
may have regarding the proposed procedures.
Employees on Stand-By will receive compensation as
follows:
Two (2) hours of regular pay for being on Stand-By on a
week day;
Three (3) hours of regular pay for being on Stand-By on
Saturday or on the employee's scheduled 9/80 day off;
Four (4) hours of regular pay for being on Stand-By on a
Sunday or on a City recognized holiday.
12

The above compensation will be in addition to any normal
shift or overtime compensation as specified in this
Memorandum of Understanding.
added.)
The June 29, 2008 through June 23, 2012 MOU between the City of Burbank and the
IBEW, Local 18, Unit 50 (Burbank IBEW MOU) provides the following Stand-By provisions
at section E.6:
E.6. 	Overtime Pay- Call Out Crew
A call out crew for the Electrical Distribution Section has
been established to provide a guarantee that, in the event
there is a problem on the Electrical Distribution System,
there will be qualified personnel available. Response time
shall be limited to no more than one hour. Therefore, a
forty (40) mile radius from BWP shall be established.
Supervisors will take their assigned City vehicle home.
E.6.b. 	Employees shall be compensated at a rate equal to
two (2) hours pay per day of such assignment
except that Saturday (or its equivalent) shall be
compensated at a rate equal of three (3) hours pay
and Sunday (or its equivalent) shall be
compensated at a rate equal to four (4) hours pay.
Holidays observed pursuant to the Memorandum
of Understanding shall be compensated at the
Sunday rate above. The above compensation will
be in addition to any normal shift or overtime
compensation as spelled out in the Memorandum
of Understanding.
Under the circumstances in this case, where the parties did not negotiate the amount of
compensation for the Stand-By work, the rates paid in other bargaining units and nearby
municipalities would most closely reconstruct the employment and earnings the employees
would have had during the back pay period. (NLRB Compliance,§ 10540.) This will not
result in a level of certainty over what the pay rate or method would have been, had there been
negotiations, but such certainty is not required. (Ibid.) A back pay formula using the rates
paid in other bargaining units and nearby municipalities is a reasonable method. (Ibid.)
13
The above compensation will be in addition to any normal
shift or overtime compensation as specified in this
Memorandum of Understanding.
(Italics added.)
The June 29, 2008 through June 23, 2012 MOU between the City of Burbank and the
IBEW, Local 18, Unit 50 (Burbank IBEW MOU) provides the following Stand-By provisions
at section E.6:
E.6. Overtime Pay - Call Out Crew
A call out crew for the Electrical Distribution Section has
been established to provide a guarantee that, in the event
there is a problem on the Electrical Distribution System,
there will be qualified personnel available. Response time
shall be limited to no more than one hour. Therefore, a
forty (40) mile radius from BWP shall be established.
Supervisors will take their assigned City vehicle home.
...
E.6.b. Employees shall be compensated at a rate equal to
two (2) hours pay per day of such assignment
except that Saturday (or its equivalent) shall be
compensated at a rate equal of three (3) hours pay
and Sunday (or its equivalent) shall be
compensated at a rate equal to four (4) hours pay.
Holidays observed pursuant to the Memorandum
of Understanding shall be compensated at the
Sunday rate above. The above compensation will
be in addition to any normal shift or overtime
compensation as spelled out in the Memorandum
of Understanding.
Under the circumstances in this case, where the parties did not negotiate the amount of
compensation for the Stand-By work, the rates paid in other bargaining units and nearby
municipalities would most closely reconstruct the employment and earnings the employees
would have had during the back pay period. (NLRB Compliance, $ 10540.) This will not
result in a level of certainty over what the pay rate or method would have been, had there been
negotiations, but such certainty is not required. (Ibid.) A back pay formula using the rates
paid in other bargaining units and nearby municipalities is a reasonable method. (Ibid.)
13

Stand-By work perfonned by bargaining unit members in the Underground
division is similar to the Stand-By work performed by IBEW bargaining unit members in
Pasadena and bargaining unit members represented by IBEW in Burbank. The IBEW-
represented bargaining unit members in Pasadena are supervised by the Underground division
employees at issue herein. The Underground division employees on Stand-By duty are
responsible for maintaining the electrical distribution system and respond to system outages or
emergencies just like employees in the IBEW Pasadena bargaining unit and the IBEW Burbank
bargaining unit. The Pasadena IBEW MOU and the Burbank IBEW MOU each provide the
following basic compensation for Stand-By work:
Two (2) hours ofregular pay for being on Stand-By on a
week day;
Three (3) hours ofregular pay for being on Stand-By on
Saturday [or its equivalent or on the employee's scheduled
9/80 day off];
Four (4) hours ofregular pay for being on Stand-By on a
Sunday [or its equivalent or on a City recognized holiday].
It is appropriate to use the above-described method because the work and other
conditions of employment are comparable, and the use of the formula is reasonable and a non-
arbitrary solution to the problem that no level of compensation was ever negotiated between
the parties. (NLRB Compliance, supra, at§ 10540.3; Great Lakes Chemical Corp, supra, 323
NLRB 749.)
PROPOSED COMPLIANCE ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it hereby is ORDERED that within 30 days of this order, the City shall provide data to
the Association and PERB that shows the dates each affected employee performed Stand-By
work between the period from September 9, 2009, the date the City implemented the policy, to
14
The Stand-By work performed by bargaining unit members in the Underground
division is similar to the Stand-By work performed by IBEW bargaining unit members in
Pasadena and bargaining unit members represented by IBEW in Burbank. The IBEW-
represented bargaining unit members in Pasadena are supervised by the Underground division
employees at issue herein. The Underground division employees on Stand-By duty are
responsible for maintaining the electrical distribution system and respond to system outages or
emergencies just like employees in the IBEW Pasadena bargaining unit and the IBEW Burbank
bargaining unit. The Pasadena IBEW MOU and the Burbank IBEW MOU each provide the
following basic compensation for Stand-By work:
Two (2) hours of regular pay for being on Stand-By on a
week day;
Three (3) hours of regular pay for being on Stand-By on
Saturday [or its equivalent or on the employee's scheduled
9/80 day off];
Four (4) hours of regular pay for being on Stand-By on a
Sunday [or its equivalent or on a City recognized holiday].
It is appropriate to use the above-described method because the work and other
conditions of employment are comparable, and the use of the formula is reasonable and a non-
arbitrary solution to the problem that no level of compensation was ever negotiated between
the parties. (NLRB Compliance, supra, at $ 10540.3; Great Lakes Chemical Corp, supra, 323
NLRB 749.)
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it hereby is ORDERED that within 30 days of this order, the City shall provide data to
the Association and PERB that shows the dates each affected employee performed Stand-By
work between the period from September 9, 2009, the date the City implemented the policy, to
PROPOSED COMPLIANCE ORDER
14

11, 2011, the date the City rescinded the policy. The data must also note whether
the dates fell on or after January 4, 2010, when each of the four affected employees received an
increase to their regular rate of pay. The data to be provided must contain sufficient detail to
determine whether each date would be considered a regular weekday, a Saturday, a Sunday, an
"equivalent" Saturday, the employee's scheduled 9/80 day off, an "equivalent" Sunday or a
City recognized holiday. 	The City shall also provide to the Association and PERB the City's
calculation of back-pay for each affected employee based on the formula set forth in this order
and the data regarding the dates the Stand-By work was performed.
Within 60 days of this order the Association is to provide to the City and PERB its
concurrence with or objection to the City's provision of data and its calculation of back-pay for
each affected employee based on the formula set forth in this order and the data regarding the
dates the Stand-By work was performed. If the Association objects to the City's data, the
Association shall specify the perceived deficiency. If the Association objects to the City's
calculation, the Association shall set forth its own calculation based on the formula set forth in
this order and the City provided data and shall state why its calculation is different.
If there is no dispute between the parties as to the amounts owed to the employees, the
City shall pay to each affected employee within 90 days of this order the amount owed plus
interest at the rate of seven percent per annum from each pay period that the Stand-By work
was performed. Upon payment of back-pay and interest to each affected employee, the parties
shall report to the undersigned PERB Agent the payment dates and amounts.
In the event, however, the Association objects to either the data provided or the City's
calculations, PERB will inform the parties of further compliance measures to be taken in this
case.
15
November 11, 2011, the date the City rescinded the policy. The data must also note whether
the dates fell on or after January 4, 2010, when each of the four affected employees received an
increase to their regular rate of pay. The data to be provided must contain sufficient detail to
determine whether each date would be considered a regular weekday, a Saturday, a Sunday, an
"equivalent" Saturday, the employee's scheduled 9/80 day off, an "equivalent" Sunday or a
City recognized holiday. The City shall also provide to the Association and PERB the City's
calculation of back-pay for each affected employee based on the formula set forth in this order
and the data regarding the dates the Stand-By work was performed.
Within 60 days of this order the Association is to provide to the City and PERB its
concurrence with or objection to the City's provision of data and its calculation of back-pay for
each affected employee based on the formula set forth in this order and the data regarding the
dates the Stand-By work was performed. If the Association objects to the City's data, the
Association shall specify the perceived deficiency. If the Association objects to the City's
calculation, the Association shall set forth its own calculation based on the formula set forth in
this order and the City provided data and shall state why its calculation is different.
If there is no dispute between the parties as to the amounts owed to the employees, the
City shall pay to each affected employee within 90 days of this order the amount owed plus
interest at the rate of seven percent per annum from each pay period that the Stand-By work
was performed. Upon payment of back-pay and interest to each affected employee, the parties
shall report to the undersigned PERB Agent the payment dates and amounts.
In the event, however, the Association objects to either the data provided or the City's
calculations, PERB will inform the parties of further compliance measures to be taken in this
case.
15

to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. 	(Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
Mary Weiss
Senior Regional Attorney
16
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, $ 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, $$ 32135, subd. (a) and 32130; see also Gov. Code,
$ 1 1020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. (Cal. Code Regs., tit. 8, $ 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, $$ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $$ 32300, 32305, 32140,
and 32135, subd. (c).)
Mary Weiss
Senior Regional Attorney
16