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HomeMy WebLinkAbout11/20/2009 B A K E R S F I E L D CITY MANAGER'S OFFICE MEMORANDUM TO: Honorable Mayor and City Cou cif November 20, 2009 FROM: Alan Tandy, City Manager SUBJECT: General Information i MISCELLANEOUS CITY NEWS -� Update on u comi ng retirements/vacancies. • Water Resources Manager Flom Core has indicated that he will be retiring at the end of the year. He has done an excellent job for us and will be missed! We congratulate him and wish him the best. -� The end of 2009 is bringing an unprecedented number of high ranking and great quality employees that will be leaving us due to retirements or other career moves, including: • Bill Rector, Police Chief • Bryan Lynn, Assistant Police Chief • Gary Hutton, Deputy Fire Chief • Stan Grady, Development Services Director • Jim Movius, Planning Director (retired earlier this year) • Javier Lozano, Human Resources Manager • Janet McCrea, Human Resources Supervisor • Pam McCarthy, City Clerk • Flom Core, Water Resources Manager We extend our best wishes to them and to all of our departing employees not mentioned above - all will be missed! -� There are two attachments (a summary from the California PERB Blog and the details provided in the Decision of the Public Employment Relations Board) that discuss an interesting set of circumstances that have unfolded relating to the City of Clovis, labor negotiations. The details are difficult to summarize but make for a very interesting read! -� Quiet Zone progress - Staff has submitted the Detail Plan to the Federal Railroad Administration, which was necessary to establish the Quiet Zone. The vacation of the railroad crossings identified in this plan will likely be on the December 16, 2009 City Council agenda. In addition, Public Works staff is working with Cornerstone Engineering on the design of the street improvements to close the crossing at Beale Ave and 2111 Street/Gage Street. Staff anticipates that the design will be complete in December 2009 so we can move forward with BNSF on the construction of the street improvements to close the crossings. In order to meet the requirements of the Detail Plan, the closures must be complete by July 2010. Staff anticipates this will happen well before that time. Honorable Mayor and City Council November 20, 2009 Page 2 Steve Lafond, Hydrographic Supervisor in the Water Resources Department received the highly regarded "Snowflake Award" from the California Cooperative Snow Surveys section. The award was presented at the 551h Annual Cooperators Conference. The award is given to those individuals that have demonstrated meritorious support of the snow operations and advancing the science and art of river snowmeltforecast forecasting. Inc den ally, Steve will be retiring at the end of the year after 33 years with the City and his insight and knowledge of the Kern River will be sorely missed. -� Need an opportunity to get some exercise in to burn off those extra Thanksgiving Day calories? McMurtrey Aquatic Center will be open for lap swim on Thanksgiving Day from 6:00 to 9:00 a.m. Bring your family for lap swimming before you indulge in turkey and football. For more information, please call 852-7430. -� McMurtrey Aquatic Center will be closed to the public from November 30'h through December 61h for annual maintenance and will reopen on December 7th -� A letter from AT&T regarding a programming change for U-Verse TV customers is enclosed. The following reports are enclosed: • The Construction Division's weekly update of the roadway paving projects. • The Streets Division work schedule. The following is an update on the status of our park construction projects: • Mill Creek: The pre-fabricated restroom was placed at Central Park this week which nearly completes the first segment of the project; we anticipate being ready to bid out the Friendship Gardens project early next year. In addition, construction of the Mexicali fagade wall has begun. Most of the work on the north and south areas of the linear park is complete. Remaining work includes final landscaping, canal railing, benches, trash cans, and water fountains. The project becomes more attractive with each finishing touch - it is a great addition to our downtown area. • Design of the streetscape improvements on Q Street, from Truxtun to 241h Street, is complete; we expect to put the construction bids out in March. • Mesa Marin: Construction on this project, which includes four lighted softball fields, a restroom/concession building, landscape, irrigation, and other lighting improvements began in mid-October. Earthwork and grading should take about 4 to 6 weeks. We will keep you informed on progress; completion is anticipated next July. • Sports Village: Initial work started this week on the Phase I construction, which consists of 8 soccer fields, restrooms, concession stand, parking, irrigation, site fixtures and water feature elements. Honorable Mayor and City Council November 20, 2009 Page 3 • Kern River Upland and River Edge Restoration Project: Design is complete, with the construction documents now in process. We anticipate bidding this project in early 2010 and doing the contract award in March. MORE ON THE BUDGET The Legislative Analyst's Office (LAO) released a report this week regarding California's fiscal outlook for the remainder of FY 2009-10 and the FY 2010-11 budget. The LAO's forecast indicates that the State needs to address a $20.7 billion General Fund deficit consisting of a $6.3 billion projected deficit for 2009-10 and a $14.4 billion gap in 2010-11 . In the current year (2009-10), the state's General Fund tax projections are off by $500 million and the remainder of the deficit result from savings and revenue generating items which are not likely to materialize. The LAO's projection also assumes that the "state eventually prevails in active, budget-related cases" which include issues such as the budgeted shift of local redevelopment funds. The Governor is expected to propose across-the-board cuts to erase some of the shortfall and we anticipate some proposals that will negatively affect the City. Looking to the future, the LAO projects that the State will continue to have operating shortfalls to the tune of at least $20 billion each year through 2014-15. The City of Auburn recently imposed its `last, best and final' offer on the Auburn Firefighters Association after seven months of negotiation and a mediator determined negotiations to be at impasse. The firefighters' contract expired June 30 of this year and the new contract calls for a 3.15% pay cut to base salary and employees will have to pay the full 9 percent EPMC, which totals for a 12 percent reduction in pay and benefits. A T:rk cc: Department Heads Pamela McCarthy, City Clerk Roberta Gafford, Assistant City Clerk rnia PERB Blog: City Not Required to Implement Last, Best, Final Offer Pagel of 3 Share Report Abuse Next Blog)) Create Blog Sign In California PERB Blog Commentary and analysis of the latest Court and Public Employment Relations Board (PERB) decisions and Legislation affecting public sector labor relations . . . Presented by Tim Yeung of Renne Sloan Holtzman Sakai LLP. SUNDAY, NOVEMBER 8, 2009 Subscribe via RSS City Not Required to Implement Last, Best, Final Subscribe in a reader Offer City of Clovis (2009) PERB Decision No. 2074-M (Issued on Subscribe via email 10/30/09) Enter your email address: This case involved an allegation by the Clovis Public Works Employees' Affiliation (Union)that the City of Clovis committed an unfair practice by refusing to implement its last, best, and final offer of a three percent wage increase. Delivered by FeedBurner Facts: Twitter Updates The parties began negotiations on a wage re-opener in May 2007. After multiple bargaining sessions the parties were unsuccessful in follow me on Twitter reaching agreement. On July 13, 2007, the City proffered its last, best, and final offer of a three percent salary increase, effective July 1, 2007. On July 17, 2007, the Union rejected the offer and declared impasse. After unsuccessful mediation attempts the parties resumed ' RuNNEawGro HaL►ZMA1!SAtfgfLLp �! Rub11C Law Group negotiations but made no progress. On September 28, 2007, the Union's chief negotiator sent a letter to the City's chief negotiator Renne Sloan Holtzman Sakai LLP stating that the City's proposal had been voted down by provides legal representation for the membership and the Union again declared impasse. Soon cities, counties, school districts, thereafter the Union also informed the City that it intended to file an universities, special districts, state unfair practice charge. agencies, and non-profit organization in The Union's chief negotiator assumed that the City would implement employments and areas labor, its last, best, and final offer of a three percent salary government law. Visit our website increase. However, by late January 2008, the City had not at http // .".rshslaw.com/ or implemented the three percent wage increase. On February 1, 2008, call us at 415.678.3800 (San after discussions with union membership, the Union's chief negotiator Francisco), 916.273.1710 left the City's chief negotiator a message stating that the Union would dismiss the pending unfair practice charge if the City would Angeles)(Sacramento) or 213.629.7005 (Los implement the three percent salary increase contained in its last, best, and final offer. About Me ........................................................-............................................ At the PERB hearing, the City's chief negotiator testified that he Tim Yeung understood the Union's proposal to be nothing more than a settlement offer of the unfair practice charge. However, based on the facts described above the ALJ found that the Union's message was an acceptance of the City's last, best and final offer and Tim Yeung is an attorney with httn://canerb.blogspot.com/2009/11/citv-not-reouired-to-implement-lacr htm] California PERB Blog: City Not Required to Implement Last, Best, Final Offer Page 2 of 3 therefore created a binding agreement between the parties. Because Renne Sloan Holtzman Sakai LLP the City didn't implement the offer, the ALJ concluded that the City in Sacramento, California. He committed an unfair practice, exclusively practices labor and employment law, with a The Board's Decision particular focus on the public sector. For the first time this year (2009-2010), the Board rejected the ALJ's View my complete profile proposed decision. First, the Board noted that under MMBA section 3505.4, once an impasse has been properly reached between the yi �, `i parties, a public agency"may implement its last, best, and final WOW offer." (Emphasis added.) The Board held that this provision is �F California Public Sector permissive, not mandatory. Therefore the City was under no Employment Links obligation to implement its last, best, and final offer at impasse. ............... Public Employment Relations. Next, the Board found that the evidence at hearing was inadequate to Board PERB� ............. ..... .......... establish an unconditional acceptance of the City's offer. More State Mediation_and Conc_�hation_ importantly, the Board held that even if the Union had validly Service (SCMS) accepted the City's last, best, and final offer, that alone did not California Public Employee create a binding and enforceable agreement under the MMBA. This is Relations Program (CPER) because MMBA section 3505.1 requires that any agreement be reduced ....1........ to writing and ratified by the City Council before it becomes binding alifornia Public Employer Labor g Rel..ations_Associat)on ((alPELRA) on the parties. Accordingly, the Board rejected the proposed decision and dismissed the complaint. Center for Collaborative_ Solutions Comments: Public Retirement-Journal Internati_onaI Pu_b_..l.ic Management 1. The Board's decision is absolutely correct. Because the Board Association for Human Resources rejected the ALJ's decision, a copy of the proposed decision was not (IPMAA) attached. You have to go to the "CA-PER"database in Westlaw to find the ALJ's proposed decision. When you look at the ALJ's proposed Blog Archive decision, you will see that the ALJ exclusively cited to private sector NLRB cases. But there is a huge difference between the NLRB and V 2009 (45) MMBA when it comes to the concept of who has the ultimate authority V November (1) to bind the employer. Under NLRB precedent, it is potentially an City__N.ot_Required_to unfair practice to send a negotiator who doesn't have authority to Implement Last, Best, Final_ bind the employer. However, under MMBA section 3505.1, it is plain ''' that only the governing body of a local agency has the authority to ratify an agreement for the City. In the same way the union's ► October (4) membership can reject a contract, a City Council or County Board of ► September (4) Supervisors can also reject a contract. Thus, the City's chief ► August (3) negotiator did not have the authority to "bind" the City in the manner the ALJ found. ► July (3) ► June (8) 2. This is (I believe) the first case under the MMBA that expressly ► May 6 affirms two very important principles. One, under the MMBA only the y ( ) governing body of a local agency can bind the agency. As mentioned 0- April (5) above, this is a critical difference between the MMBA and the NLRB, ► March (5) and to some extent even with the other public sector statutes. Second, the imposition of an employer's last, best, and February (3) final offer is not mandatory, but rather permissive. Thus, where a ► January (3) union rejects an offer of a raise because it isn't enough, it bears the ► 2008 (27) http://caperb.blogspot.com/2009/1 1/city-not-required-to-implement-last.html California PERB Blog: City Not Required to Implement Last, Best, Final Offer Page 3 of 3 risk that the employer will choose not to implement any raise at all. Here, in retrospect, I'm sure the Union wishes it would have What is PERB? accepted the 3%offer back in 2007. The California Public Employment Posted by Tim Yeung at 10:53 PM Relations Board (PERB) is the administrative agency charged with Labels: Decisions administering the collective bargaining statutes covering over 2,000,000 public sector employees Home throughout the state of Claifornia. Older Post PERB's jursidiction includes employees of 's schools, colleges, and universities, employees of the State of California, employees of California alocoal publliic agencies (cities, counties and special districts), trial court employees and supervisory employees of the Los Angeles County Metropolitan Transportation Authority. PERB's official website is located here: http://www.perb.ca.Qov/ Other Legal Resources California Public Sector Labor Relations Published by the Labor and Employment Law Section of the State Bar of California, this is the treastise on California public sector labor law. There is no substitute - if you practice in this area, you need this book! "Pocket Guides"by the California Public Employee Relations Program "Pocket guides" are available on a variety of public sector labor $ employment law areas. These are great as a handy reference on everyday issues. The Fine Print O.K., I'll try to avoid legal jargon. The fact that you are reading this blog does not mean that I am your attorney or that I am giving you legal advice. I make every effort to get things right on this blog. But there may be times when I get something wrong, and if I do, you've been forewarned that you shouldn't rely on the postings here as it they constituted real legal advice that you paid for, which you didn't. }ittn•//!'AnPrh hinaCn(nt rnm/?f)nQ/i )/(_i}-v_nnt-re..f111irP(j-to-lmnlf-mPnf-laef}tml STATE OF CALIFORNIA SE" fy 4 . f DECISION OF THE ±'m PUBLIC EMPLOYMENT RELATIONS BOARD , ��ll•O RN� OPERATING ENGINEERS LOCAL 3, Charging Party, Case No. SA-CE-513-M V. PERB Decision No. 2074-M CITY OF CLOVIS, October 30, 2009 Res ondent. Appearance: Lozano Smith by David M. Moreno, Attorney, for City of Clovis. Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members. DEC_ WESLEY, Member: This case is before the Public Employment Relations Board (PERB or Board) on exceptions filed by the City of Clovis (City) to the proposed decision of an administrative law judge (ALJ). The ALJ found that the City violated the Meyers-Milias- Brown Act (MMBA)' when it failed to resume negotiations with Operating Engineers Local 3 (also referred to as Clovis Public Works Employees' Affiliation or CPWEA) after impasse was broken, and failed to implement the City's last, best, and final offer after it was accepted by CPWEA. The proposed decision ordered the City to implement a three percent salary increase effective July 1, 2007. The Board has thoroughly reviewed the proposed decision and the record in light of the City's exceptions and the relevant law.2 Based on this review, the Board finds that CPWEA MMBA is codified at Government Code section 3500 et seq. Unless otherwise indicated, all statutory references herein are to the Government Code. 2 The City's request for oral argument is denied. The Board has historically denied requests for oral argument where an adequate record has been prepared, the parties had ample opportunity to present briefs, and the issues before the Board are sufficiently clear to make oral failed to establish that the City violated MMBA sections 3503, 3505, 3506 and 3509(b),and PERB Regulation 32603(a), (b) and (c).3 Therefore, for the reasons stated herein, we reverse the proposed decision and dismiss the complaint. FINDINGS OF FACT CPWEA is the exclusive representative of a unit of City employees who work in the Public Works Department. CPWEA and the City are parties to a memorandum of understanding (MOU) effective July 1, 2005 through June 30, 2008. The MOU includes a provision that on or about March 2007, the parties would re-open negotiations regarding wages for July 2007 through June 2008, the third year of the MOU. The parties began negotiations on the wage re-opener in May 2007. After multiple bargaining sessions the parties were unsuccessful in reaching agreement. On July 13, 2007, the City proffered its last, best, and final offer of a three percent salary increase, effective July 1, 2007. On July 17, 2007, CPWEA rejected the offer and declared impasse. Following unsuccessful mediation sessions, the parties met to resume negotiations on September 21, 2007. The City proposed a three percent salary increase effective July 1, 2007, or in the alternative, a three percent salary increase effective October 1, 2007 plus a one-time payment of$400. CPWEA countered with a proposal for a four percent wage increase. The City rejected this proposal and informed CPWEA that the three percent salary increase effective July 1, 2007 constituted its last, best, and final offer. On September 28, 2007, CPWEA chief negotiator Doug Gorman (Gorman) sent a letter to the City's chief negotiator, Jeff Cardell (Cardell), stating that the City's proposal had been argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision No. 1816-M; Monterey County Office of Education (199 1) PERB Decision No. 913.) 3 PERB regulations are codified at California Code of Regulations, title 8, section 31001 et seq. 2 voted down by the union membership and the union again declared impasse. The letter also informed the City that CPWEA intended to file an unfair practice charge alleging that the City had engaged in surface bargaining. On October 9, 2007, the City Manager sent a memorandum to employees represented by CPWEA regarding the status of negotiations, stating in part: Given the current fiscal conditions of the City, the declining economy in general, and considering the competitiveness of the existing wage scales for this unit in the marketplace, I believe that the City's offer of a 3.0% wage increase retroactive to July 1, 2007, for all employees in this unit, was a very good offer. CPWEA's labor representative informed the City's labor negotiators that the unit members who voted on the City's most recent wage proposal voted not to accept it. In view of the fact that CPWEA representatives/membership has rejected various versions of the City's wage offer several times, and considering that CPWEA representatives have declared on two (2) occasions that the negotiation process is at impasse, the City has decided to conclude its efforts to reach agreement on this issue. On October 24, 2007, CPWEA filed an unfair practice charge alleging that the City had engaged in bad faith bargaining with respect to the wage re-opener. After receiving the City Manager's October 9, 2007 memorandum, Gorman assumed the City would implement its last, best, and final offer of a three percent salary increase. Gorman was aware that the City had imposed final offers on other bargaining units. However, by late January 2008, Gorman realized the City had not implemented the three percent wage increase. On February 1, 2008, after discussions with union membership, Gorman left a voicemail message advising Cardell that CPWEA would dismiss the pending unfair practice charge if the City would implement the three percent salary increase contained in its last, best, and final offer. 3 In response, on February 7, 2008, Cardell sent a letter to Gorman that stated, in part: Thank you for your telephone call of February 1, 2008, regarding resolution of the Unfair Labor Practice Charge (ULPC) filed by [CPWEA]. As I understand your proposed resolution, in recognition of improved labor relations made in the Public Utilities Department, CPWEA is willing to dismiss the ULPC in exchange for implementing the City's "last best and final offer" of three (3) percent effective July 1, 2007, which was offered by the City during the last meet and confer process. The City appreciates CPWEA's interest in resolving the ULPC. The City also desires to resolve this issue; however, we must decline the offer as stated above in view of the fact that CPWEA previously rejected the City's wage offer and declared the negotiations process to be at impasse. The City considers the negotiations concerning wages for the third year of the 2005- 2008 MOU to be concluded. Additionally, the City considers the assertions made by CPWEA in the ULPC to be without merit, and therefore, not subject to the type of"trade off' you have proposed. Cardell concluded the letter by stating that the City looked forward to opening negotiations on a successor MOU in the near future. CPWEA did not respond to the City's February 7, 2008, letter. On March 11, 2008, CPWEA amended its charge to allege that the City's February 7, 2008 letter was an unlawful rescission of the last, best, and final offer, and a further indicator of surface bargaining. On March 27, 2008, the PERB General Counsel issued a complaint that alleged that by failing to implement its last, best, and final offer of a three percent wage increase for the third year of the MOU, the City had committed an unfair practice.4 CPWEA withdrew all other allegations, leaving only the allegation regarding the refusal to implement the last, best, and final offer. 4 DISCUSSION MMBA section 3505 provides that local government agencies and recognized employee organizations "shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment." The parties in this matter engaged in negotiation efforts on the wage re-opener from May 2007, through September 28, 2007, when CPWEA rejected the City's last, best, and final offer of a three percent salary increase, and declared impasse. The proposed decision held that Gorman's subsequent voicemail message effectuated a valid acceptance of the City's offer, which automatically created a binding, enforceable agreement between the parties. In its appeal, the City contends that the evidence does not support finding that CPWEA accepted the City's offer. The Board agrees with the City and concludes the record does not establish that CPWEA made a valid acceptance of the City's last, best, and final offer.5 At the hearing on this matter, the entirety of Gorman's testimony on this issue is as follows: Q . . . when you made the phone conversation to Jeff Cardell, was it your intent to accept the last, best and final offer? A Yes, it was. The record is void of any direct testimony by Gorman (or any other CPWEA witness) as to the actual content of the voicemail message. The remainder of the CPWEA "testimony" on this issue is made by CPWEA's attorney, primarily during opening arguments, and thus cannot be considered evidence in support of CPWEA's charge. Pursuant to MMBA section 3505.4, once an impasse has been properly reached between the parties, a public agency "may implement its last, best, and final offer." This provision is permissive, not mandatory. Therefore, while the parties are properly at impasse, the City is not obligated to implement its last, best, and final offer. 5 The bulk of the direct witness testimony as to the content of the voicemail message comes from Cardell, who testified as follows: Q Can you explain the nature of that contact? A Mr. Gorman gave me a telephone call and made a proposal that in exchange for dismissal of the unfair labor practice charge that we should go ahead and implement the 3 percent offer retroactive to July 1 St. And it was with the spirit of, or the recognition that the reason for the call was that things were going well at the Public Utilities Department and let's try to put this behind us and let's, so let's try to make this go away by we'll dismiss this if a, [sic] if the 3 percent is provided back to July 111 Cardell further testified that he understood Gorman's proposal to be nothing more than a settlement offer of the unfair practice charge. The only other evidence of the content of Gorman's voicemail message is reflected in Cardell's February 7, 2008 letter. In the letter, Cardell summarized his understanding of the purpose of the call and CPWEA's proposal to settle the charge. The City declined CPWEA's settlement offer via the February 7, 2008 letter, explaining why it did not believe the offer to be an appropriate resolution to the unfair practice charge. Gorman's testimony, simply responding "yes"to the CPWEA attorney's characterization of Gorman's subjective intent in making the telephone call to Cardell, is wholly insufficient to demonstrate the actual content of the voice message. Therefore, in the absence of evidence on the record to demonstrate that Gorman's telephone message was anything more than an attempt to open settlement negotiations with respect to the unfair practice charge, as reported by Cardell, we simply cannot make the leap to find that the 6 telephone message was a specific, and unconditional, acceptance of the City's last, best, and final offer, that created an agreement between the parties.' Moreover, MMBA section 3505.1, provides that: If agreement is reached by the representatives of the public agency and a recognized employee organization or recognized employee organizations, they shall jointly prepare a written memorandum of such understanding, which shall not be binding, and present it to the governing body or its statutory representative for determination. Consequently, even if Gorman's voicemail message represented a valid acceptance of the City's last, best, and final offer, the proposed decision's finding that it created a binding and enforceable agreement is in error. As the City correctly asserted in its appeal, Section 3505.1 requires that the agreement be reduced to writing and ratified by the City before it will become binding on the parties. Numerous cases have discussed and approved this interpretation. In Long Beach City Employees Association, Inc. v. City of Long Beach (1977) 73 Cal.App.3d 273, the court denied a petition to compel the city to adopt a memorandum of understanding, and soundly rejected the union's argument that it was bad faith for the city council to refuse to ratify the agreement. The Court explained that the MMBA, . . . expressly provides that the memorandum `shall not be binding' but shall be presented to the governing body of the agency or its statutory representative for determination, thus reflecting the legislative decision that the ultimate determinations are to be made by the governing body itself. (Long Beach, p. 278, citing Bagley v. City of Manhattan Beach (1976) 18 Cal.3d 22.)7 The absence of evidence that CPWEA made any attempt to respond to the City's February 7, 2008 letter to clarify its intent to accept the last, best, and final offer, as opposed to making a settlement offer on the unfair practice charge, further supports our finding herein. Also citing Glendale City Employees'Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, and Crowley v. City and County of San Francisco (1977) 64 Cal.App.3d 450. 7 In the case at hand, the record is void of any evidence that an agreement was reduced to writing and ratified by the City. Therefore, a finding that a binding agreement was created which mandates implementation of the three percent salary increase is contrary to law.8 Unalleged Violation The City also excepts to the ALPs conclusion that Gorman's voicemail message amounted to changed circumstances that broke the impasse between the parties, such that the City's failure to resume bargaining was a violation of the duty to bargain in good faith.9 We conclude that no findings can be made as to the allegation that the City violated its duty to bargain in good faith when it failed to resume negotiations as a result of a significant concession by CPWEA because it was not alleged in the complaint. The Board may only review unalleged violations when the following criteria are met: (1) adequate notice and opportunity to defend has been provided the respondent; (2) the acts are intimately related to the subject matter of the complaint and are part of the same course of conduct; (3) the unalleged violation has been fully litigated; and (4) the parties have had the opportunity to examine and be cross-examined on the issue. (Fresno County Superior Court(2008) PERB The proposed decision cites Local 512, Warehouse & Office Workers' Union v. NLRB (9" Cir. 1986) 795 F.2d 705, in support of the finding that acceptance of the City's last, best and final offer by CPWEA creates a binding, enforceable agreement. However, this case is distinguished, because the private sector parties in Local 512 were not covered by a statutory scheme that mandated ratification of the parties' agreement. Furthermore, although the parties in Local 512 were subject to a stipulation that any agreement reached would be binding only if ratified by the employees and approved by the employer, the court made a specific finding that these conditions had been satisfied. 9 In Modesto City Schools (1983) PERB Decision No. 291, the Board held that "impasse suspends the bargaining obligation only until `changed circumstances' indicate an agreement may be possible." Changed circumstances include concessions "which have a significant impact on the bargaining equation." (Ibid.) The duty to bargain in good faith is thus revived. Where concessions are made by one party, they must be given consideration by the other, and a good faith effort must be made to determine the potential for agreement. (Ibid.) 8 Decision No. 1942-C.) The unalleged violation also must have occurred within the applicable statute of limitations period. (Ibid.) These criteria have not been met in this case. As stated previously, the complaint alleged only that the City violated its duty to bargain in good faith by failing to implement its last, best, and final offer. The claim that Gorman's voicemail message constituted a"changed circumstance" that revived the City's duty to bargain was not alleged in CPWEA's charge, was not alleged in the complaint, was not introduced at hearing, and was not raised by CPWEA until its post hearing brief. The City was not provided notice, or adequate opportunity to fully litigate the issue, and did not have the opportunity to examine and cross-examine witnesses on this issue. Therefore, we cannot consider whether the City's February 7, 2008, letter constituted an unlawful failure to resume bargaining in response to changed circumstances, in violation of the MMBA. ORDER Based on the foregoing findings of fact and conclusions of law and the entire record in this matter, the complaint and underlying unfair practice charge in Case No. SA-CE-513-M are hereby DISMISSED. Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision. 9 at&t AT&T U-verse November 17, 2009 RECEIVED N 0 V 1 4 ?n"r-'f City Manager's Off'js., City Manager Alan Tandy City of Bakersfield 1600 Truxtun Ave Ste 300 Bakersfield, CA 93301-5184 Dear City Manager Tandy: AT&T California ("AT&T") hereby advises you of the following information regarding a programming change for AT&T U-verses"' TV customers. We wanted to make you aware that as of December 28, 2009, Universal HD, on channel 1104, will now be available to U100 and higher subscribers who also subscribe to the HD Technology Fee. Universal HD was previously only available in the HD Premium Tier to subscribers who also subscribed to the HD Technology Fee. Customers will be notified of this change in separate mailings. If you have any questionE', please contact your local AT&T External Affairs manager, Jan Bans on 661-327-6565. Sincerely, Rhonda J. Johnson Vice President, AT&T California Regulatory Affairs © 2009. AT&T Intellectual Property. All rights reserved. AT&T and the AT&T logo are trademarks of AT&T Intellectual Property. CONSTRUCTION DIVISION WEEKLY UPDATES ROADWAY PAVING PROJECTS Status update of the roadway paving projects currently awarded as of November 20, 2009: Stockdale High M - California to Wetherl and -'ountry Club Lane to Ashe Road Roadway reconstruction operations are currently underway between Wetherly Dr. and California Ave. Traffic is currently limited to one lane in each direction; however, we expect to have two lanes of traffic reestablished in each direction by November 241h. We expect the roadway reconstruction portion of this project to last another 2 to three weeks. The scheduled completion date of this project is February 10, 2010. AMERICAN RECOVERY AND REINVESTMENT ACT PROJECTS: Mt Vernon Ave -SR178 to Universit Avenue Paving operations on Mt. Vernon Ave. are complete. The contractor will be raising manholes to grade and reestablishing traffic detection loops at the traffic signals. This project is expected to be complete on December 7, 2009. Ashe Road -White Lane to Ming Avenue Reconstruction operations are currently underway on the west side of the street. Construction delineation and temporary traffic signage will be configured to allow one lane of traffic in each direction while this operation is being performed. This project is expected to be complete on December 7, 2009. Wilson Road -White Lane to Planz Road Reconstruction operations are currently underway on the west side of the street. Construction delineation and temporary traffic signage will be configured to allow one lane of traffic in each direction while this operation is being performed. This project is expected to be complete on December 16, 2009. Hughes Lane - White Lane to Planz Road Reconstruction operations are currently underway on the west side of the street. Construction delineation and temporary traffic signage will be configured to allow one lane of traffic in each direction while this operation is being performed. This project is expected to be complete on December 16, 2009. W1ble Road - Pacheco Road to White Lane Work in this street is not scheduled to begin on November 30th. A street will be done at night between the hours of 7:00 PM to 7: onstruction work on the 00 All ll construction This project is expected to be complete on December 16, 2009. 1 1/20/2009 1:04:38 PM C:\DOCUME-1\RKIRK W-1\LOCALS-'\Temp\XPgrpwise\RoadwayProjeclsUpdates_November 20.doc CDBG-R Pavement Rehabilitation Project Paving operations have been delayed to allow California Water Service to relocate a mainline on Beale Ave. Paving operations are expected to resume on Monday (11/23). All paving is expected to be in place by the end of next week (weather permitting). The streets being done as part of this project are as follows: • King Street- Chico St. to E. 18th Street • Chico Street- Owens Street to King Street • Owens Street - Chico St. to E. 181h Street • Eureka Street- Owens Street to King Street • Dolores Street- Gage Street to Beale Avenue • Beale Ave. - Chico Street to Eureka Street This project is scheduled to be complete by December 18, 2009. 1 1/20/2009 1:04:38 PM C:\DOCUME-1\RKIRK W-1\LOCALS-1\Temp\xPgrpwise\RoadwayProjectsUpdates_November 20.dcc Page 1 of 2 STREETS DIVISION — WORK SCHEDULE WEEK OF NOVEMBER 23, 2009 — NOVEMBER 27, 2009 Resurfacing/Reconstructing streets in the following areas (as weather permits) Reconstructing streets in the area south of 178 Highway, west of Fairfax Road. Blade sealing "P" Street between California Avenue & 4th Street. Miscellaneous Streets Division projects• Installing a storm line and catch basins on "K" Street between California Avenue & 5th Street (CDBG FUNDED PROJECT). Installing curb & gutters in the area between California Avenue & 4th Street, east of Chester Avenue (CDBG FUNDED PROJECT). Working on the installation of a sewer line on Ming Avenue, east of Hughes Lane. This is part of the Ming Avenue widening project. THIS SPACE INTENTIONALLY LEFT BLANK Week of November 232009 Work Schedule Page 2 of 2 STREETS SWEEPING SCHEDULE Monday, November 23, 2009 Between Coffee Rd. & Verdugo Ln. — Brimhall Rd., south to the Kern River boundary. Cul-de-sacs, west of Windsong St., between Brimhall Rd. & Thistlewood Ct. City areas between Rosedale Hwy. & Stockdale Hwy. — Verdugo Ln. to the west City limits. Between Jenkins Rd. & Allen Rd. — Stockdale Hwy. & Birkenfeld Ave. Between Hosking Rd. & Astro Ave. — So. "H" St. & Union Ave. Tuesday, November 24, 2009 City areas between Olive Dr. & Downing Ave. — Coffee Rd. & Knudsen Dr. / Mohawk St., including Patton Way from Weldon Ave. to Meany Ave. Between W. Columbus St. & 34th St. — Chester Ave. & San Dimas St. Between Union Ave. & Madison St. — Casa Loma Dr. & White Ln. Between Westwold Dr. & So. Laurelglen Blvd. — Gosford Rd. & Woodglen Dr. Wednesday, November 25, 2009 City areas between Snow Rd. & Rosedale Hwy. — Jewetta Ave., west to the City limits. Between Ming Ave. & So. Laurelglen Blvd. — Coffee Rd. & El Portal / Laurelglen Blvd. Thursday, November 26, 2009 Holiday— No sweeping service. Friday, November 27 2009 Holiday— No sweeping service. Week of November 23_2009_Work Schedule Analyst expected to project $21 billion state budget deficit - Sacramento Politics - California Politics 5... Page 1 of 1 TIE SACWIEm BEE sact*excsn Analyst expected to ect proj $21 bi Ilion state budget deficit smith @sacbee.com Published Wednesday, Nov. 18, 2009 Despite revenue projections that are holding relatively firm, California faces a $21 billion state budget shortfall over the next year and half, according to sources who have been briefed on a projection from the Legislature's budget analyst. The shortfall will be detailed in a report due to be released today by Legislative Analyst Mac Taylor. Sources said the report will show that the state will fall short by $6.3 billion in the fiscal year that began July 1, due largely to failed projections in the spending plan lawmakers cobbled together in July. Lawmakers and Gov. Arnold Schwarzenegger failed to reduce the corrections budget enough to balance the budget, underestimated school funding by $1 billion, overestimated savings in the massive Medi-Cal health program for the poor and counted $1 billion from the sale of the State Compensation Insurance Fund that will not occur. Moreover, courts have blocked some cuts in transit programs and the in-home care program. Those faulty premises will be carried over in the fiscal year that begins next July, along with a $7 billion structural difference that budget writers had predicted all along. On the bright side, sources reported, Taylor will project that the sour economy will lower state tax revenue projections by only about $500 million in the current year. Still, the looming $21 billion hole is likely to force even deeper cuts in the $84.6 billion spending plan this fiscal year and more pain in the coming year. Schwarzenegger and legislators agreed to cuts to education and social services, as well as temporary tax hikes, in two budget deals earlier this year. "We are not out of the woods yet," Schwarzenegger acknowledged last week in a meeting with the Fresno Bee editorial board. "The key thing is, we have to go and still make cuts and still rein in the spending." Schwarzenegger has since said he would propose across-the-board cuts to erase some of the shortfall. Call Bee Capitol Bureau Chief Dan Smith, (916) 321-5249, h ttp://www.sacbee.com/capitolandcalifomia/v-print/story/23 31876.htm1 11/18/2009 Budget Gap Widens in Sacramento-WSJ.com Pagel of 2 t ill i � opr Janes Reprints 7 has copy is for your pe R r5('.�ai, ^oi -,armnem 3I a 5e;onry t �raier pic4er#anon:ready copie s distr�hatian to your colleagues clients ar rustrmers,user tt7e Ordor Epnrt#s tool of the botturn any article(,)r V�,o www.djreprints.com '..or See a sample reprint in PDF format. Order a reprint of this article now is +ti€LLJ [ill, WsJAnm ........ .. .......... NOVEMBER 19..7009 Budget Gap Widens in Sacramento $21 Billion Fiscal Shortfall Could Mean More Clots,Higher Taxes and the Return Of to Meet Obligations By STU WOO California is deep in red ink again,according to a new report projecting that the cash-strapped state faces a$21 billion budge shortfall through June 2011. The report,published Wednesday by the California legislature's nonpartisan analyst, finances--with a$6 billion gap forecast in the current fiscal year that goes until June 2010 and grim nother$14 billion deficit falling in the 2010-2011 fiscal year. The state's Democratic controller,John Chiang,said on Wednesday that California could have trouble making payments as early as spring 2010 if tax revenue remains below forecasts,among other reasons. Until at least June 2015,the report projected California will face annual budget shortfalls of about$2o billion. Facing so much fiscal red ink,Californians could see another round of spending cuts and tax increases. Since September 2008,state lawmakers have enacted three budgets to close a cumulative through spending cuts and tax increases,but also with federal-stimulus funds and one-time accounting g mmiicks largely through point,California was so close to insolvency it was forced to issue IOUs. The report's conclusions now raise the likelihood of another lengthy impasse among the state's hyper-partisan legislators tha could threaten California's solvency and force officials to again resort to IOUs. Republicans,including Gov.Arnold Schwarzenegger,are opposing tax increases.Democrats,who control the state legislature but fall short of the two-thirds majority needed to pass budgets,vow to resist new spending cuts. "It's going to be,as Yogi Berra says,d6ja vu all over again,"said Tom Harman,a Republican state senator. "The numbers cry loudly for California to focus on rebuilding our tax base,"said Democrat Darrell Steinberg,the Senate president. "The only tried and true way to do so is to use our fiscal levers to increase the number of high-wage jobs." Regarding the prospect of delayed payment of its obligations,Mr. Chiang,the state's controller,said: "We don't want to revisit the dangerous scenario we were in twice last year....It's all in the governor's and legislature's hands,and if they're serious about protecting Californians,they'll resolve it quickly." But state legislators don't expect swift resolution. "Given the conduct of the Democrats and their strong refusal to look at reasonable cuts, [IOUs]are probably something that we might see again,unfortunately,"said Mr.Harman,who added that Republicans want to look at reining in spending on social programs that have expanded in past years. http://online.wsi-com/article/SB 125856632697953969.html?mod=rss_Page_One 1 1/2(1/�nn4 Budget Gap Widens in Sacramento - WSJ.com Page 2 of 2 Mr. Schwarzenegger,who will release a budget proposal Lacking Funds Mr. early January,has said the state needs more across-the- Callfornaar's Legislative Analysts Offlte expects that the state will board cuts. "I think it's important not to raise revenues, continue to have mating shortfalls In the coming years. General l"uncfs not to raise taxes,"he said Wednesday at a conference in C?(�r0tit7�511pd'ti°�i15,in billions Actual deficit ■Forecastead shortfalls Milan,Italy. "We have to live within our means." 20D940 2D10-21 2011-12 ZD12-13 201344 301415 The new budget report said $6 billion of the projected -$5 shortfall in the current fiscal year is largely due to unrealistic budget assumptions about tax revenue and -10 spending on schools and prisons.A chunk of the 2tl1€1`ll► remaining$14 billion deficit forecast for the 2010-2011 -15 srrtfaM fiscal-year budget would result from the expiration of 2009-113► -20 deficit temporary budget solutions,such as use of federal- stimulus funds and accounting gimmicks,according to the -25 report. sauru:CMifOrnI&5 t cg151Alw AddlrA's ofar Economist Bill Watkins,director of the Center for Economic Research and Forecasting at California tax-revenue growth and spending cuts to solve its problems. Lutheran University,said the state needs a combination of "What the state needs to start fundamentally thinking about is how to generate economic activity,because without economic activity, [lawmakers]will never get the situation under control,"Mr.Watkins said. Write to Stu Woo at Stu.Woo @wsj.com Printed in The Wall Street Journal,page A6 This copy is for your personal,non-commercial Copyright D u a only.Distribution andRusetof this material are governed by our Subscriber Agreement and by copyright law.For non-personal use or to order multiple copies,please contact Dow Jones Reprints at 1-800-843-0008 or visit www.djreprints.com http://online.wsj.com/article/SB 125856632697953969.html?mod=rss_Page_One 11/20/2009 Imposed firefighter contract includes 12% cut in pay, benefits -Auburn Journal Pagel of 2 PRINT THIS • CLOSE WINDOW 10/26/09 1 119 comments ( 2122 views _ SHARE Imposed firefighter contract includes 12% cut in pay, benefits City calls it 'last, best and final' offer By Michelle Miller-Carl Journal News Editor After months of negotiations, the city of Auburn has implemented a contract with the Auburn Firefighters Association that will result in a 12 percent loss in pay and benefits. rt` Firefighters and their family members packed the council chambers Monday night to watch the council unanimously approve the city's"last, best and final"offer to firefighters. The association has been in negotiations with the city since March and a mediator has determined negotiations to be at an impasse. The firefighters'previous contract expired June 30. File "We have made every effort we could to reach an agreement with them,"Mayor Mike Holmes said at Monday's Auburn Mayor Mike meeting. "The negotiator has not proposed anything new, we're waiting. If something new is put on the table Holmes we will take a look at it." 4 The association has recently retained Reed and Associates to represent it. Richard A. Reed said Monday night that he has sent two letters to the city requesting further conference. "Auburn city has decided they do not want to meet with us,"he said. The city's offer includes up to a 3.15 percent reduction in base salary and 9 percent of the employee's PERS contribution. The city's offer states the pay and benefits would be restored if the city's economic situation improves. No layoffs would occur while this plan is in place. In other business Monday, the council heard a status report from Councilmembers Kevin Hanley and Bill Kirby on the city's 14 commissions and committees. The report, requested by Holmes, was to evaluate and update the groups'missions and practices. "I attended a number of meetings for a number of these groups and they seem a little disorganized and did not understand the rules for how a meeting is to be conducted,"Kirby said. Among the recommendations for these commissions were that they: -Receive a summary of meeting guidelines including information on the Brown Act and ethics. -Rotate the chair position on a yearly basis -Make biannual reports to the council -Provide minutes to city council -Operate on an annual budget cycle The report was given to staff and will be put forth for action at a future council meeting. Michelle Miller-Carl can be reached at michellem @goldcountrymedia.com. ----------------------------------- Auburn City Council In other business Monday,the Auburn City Council: http://auburnjournal.conVdetall/133374.html?sub_ld=133374&print=l 11/19/2009 Imposed firefighter contract includes 12% cut in pay, benefits -Auburn Journal Page 2 of 2 •Authorized participation in the 2009 Proposition 1A Securitization Program, allowing the city to receive upfront in cash the$353,000 in property tax money withheld by the state to balance its budget. •Appointed vacancies on the Auburn Arts Commission to Brian Jagger,Aloha Baumgarten, Mary Beauchamp, Marti Niles and Randy Mealhow. Councilman Bill Kirby cast a dissenting vote on Baumgarten and Beauchamp because they were not Auburn citizens. • (Acting as the Auburn Urban Development Authority)approved the three remaining members to the Streetscape History and Art Advisory Committee. Restaurant owner Ty Rowe will represent the Old Town Business Association; Business owner Harvey Roper will represent the Auburn Endurance Capital Committee; and Marti Niles will represent the Auburn Arts Commission. http://aubumjoumal.com/detail/i 33374.html?sub_id=133374&print=l 11/19/2009