Decision 3006M – County of San Diego

MMBA section 3505.3 is one of multiple PERB-administered statutes requiring employers to provide reasonable release time to a reasonable number of employees, without loss of compensation or benefits. For those two aspects of release time, the PERB-administered statutes provide an enforceable statutory right in the absence of any collective bargaining agreement, but if an operative agreement specifies the number of employees to be released, then it controls as to that specific term, and the same is true if there is operative agreement as to the number of days or hours of release time afforded. (San Mateo County Community College District (1993) PERB Decision No. 1030, pp. 14-16.) Indeed, this principle is true irrespective of whether the governing statute includes a provision stating that an operative agreement will control as to the number of employees released and/or the amount of release time provided; certain PERB-administered statutes include such a provision while other statutes do not, but PERB interprets these disparate laws in the same manner. (Ibid.) (pp. 7-8.)

MMBA section 3505.3 is one of multiple PERB-administered statutes requiring employers to provide reasonable release time to a reasonable number of employees, without loss of compensation or benefits. The number of employees released and/or the amount of release time provided are bargainable. However, the requirement that release time be provided without loss of compensation and benefits constitutes a measurable, non-waivable minimum statutory guarantee. (County of Riverside (2013) PERB Decision No. 2307-M, pp. 29-30.) (p. 8.)

San Mateo County Community College District (1993) PERB Decision No. 1030 (San Mateo) held that a union cannot prevail in a PERB charge alleging that its negotiated agreement provides a substandard “quantity” of release time. (Id. at p. 16 (emphasis supplied).) County of Riverside (2013) PERB Decision No. 2307-M (Riverside I) clarified San Mateo in an important respect, limiting its holding to its specific context—a union challenging an agreement’s provision as to the quantity of allowable release time. (Riverside I, at pp. 29-30.) Taking San Mateo and Riverside I together, the Board further clarified that a union cannot challenge an operative collective bargaining agreement setting the number of employees released for bargaining or the quantity of allowable release time, as those topics are bargainable. In contrast, the right to receive release time without loss of compensation or other benefits is a non-waivable minimum statutory guarantee. (pp. 7-8.)

Where MMBA section 3505.3 and similar PERB-administered statutes require employers to provide reasonable release time to a reasonable number of employees, without loss of compensation or benefits, the Board construes “‘loss” as measured against the amount of pay the employee would have earned if the employee had not been released for bargaining. (County of Riverside (2013) PERB Decision No. 2307-M, p. 32 (Riverside I); see also County of Riverside (2018) PERB Decision No. 2573-M, p. 26 (Riverside II) ([“loss of compensation or other benefits” must always be measured against what employees would have received if they had not been released for bargaining].) In sum, the statutory standard—“without loss of compensation or other benefits”—requires that release time and associated benefits at least equals what the released employees would have earned had they not been released for bargaining or another purpose set forth in section 3505.3. However, the statutory standard does not require employees to be paid for time spent in collective bargaining negotiations if that time exceeds the regular work hours they are missing due to negotiations. In other words, section 3505.3(a) holds employees harmless for replacing regular work time with release time but does not mandate that they are better off financially for having done so. Moreover, the same principles apply to release time for bargaining as to other forms of release time that MMBA section 3505.3 protects. (pp. 5, fn. 15 & pp. 9-12, 17.)

An employer’s failure to provide full compensation for work hours missed due to negotiations would create a chilling effect on the exercise of protected rights. An employer cannot provide full compensation for work hours missed due to negotiations, measured against released employees’ regular compensation, if it withholds hourly leave accruals, pension service credit, credit toward overtime, or other compensation or benefits that derive from total hours. “To construe it otherwise would exact a penalty on employees for engaging in formal negotiations, and create a chilling effect on the exercise of protected employee rights, i.e., participation in organizational activities.” (County of Riverside (2013) PERB Decision No. 2307-M, pp. 32-33.) Moreover, the same principles apply to release time for bargaining as to other forms of release time that MMBA section 3505.3 protects. (pp. 5, fn. 15 & 13-14.)

A union may not waive the right to receive release time without loss of compensation or benefits. Parties, however, are not prevented from agreeing to release-time terms that are more generous than those required by MMBA section 3505.3(a). (See San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, p. 22 [where a statutory right is non-waivable, parties may nonetheless agree to more generous terms].) Moreover, the same principles apply to release time for bargaining as to other forms of release time that MMBA section 3505.3 protects. (pp. 5, fn. 15 & 15-16.)

Bargaining release time covers not only time spent negotiating but also reasonable time for preparation and internal union caucuses. (Oroville Union High School District (2019) PERB Decision No. 2627, pp. 14-18 [vacated in part on other grounds].) (p. 5, fn. 5.)

MMBA section 3505.3 is one of multiple PERB-administered statutes requiring employers to provide reasonable release time to a reasonable number of employees, without loss of compensation or benefits. For those two aspects of release time, the PERB-administered statutes provide an enforceable statutory right in the absence of any collective bargaining agreement, but if an operative agreement specifies the number of employees to be released, then it controls as to that specific term, and the same is true if there is operative agreement as to the number of days or hours of release time afforded. (San Mateo County Community College District (1993) PERB Decision No. 1030, pp. 14-16.) Indeed, this principle is true irrespective of whether the governing statute includes a provision stating that an operative agreement will control as to the number of employees released and/or the amount of release time provided; certain PERB-administered statutes include such a provision while other statutes do not, but PERB interprets these disparate laws in the same manner. (Ibid.) (pp. 7-8.)

MMBA section 3505.3 is one of multiple PERB-administered statutes requiring employers to provide reasonable release time to a reasonable number of employees, without loss of compensation or benefits. The number of employees released and/or the amount of release time provided are bargainable. However, the requirement that release time be provided without loss of compensation and benefits constitutes a measurable, non-waivable minimum statutory guarantee. (County of Riverside (2013) PERB Decision No. 2307-M, pp. 29-30.) (p. 8.)

San Mateo County Community College District (1993) PERB Decision No. 1030 (San Mateo) held that a union cannot prevail in a PERB charge alleging that its negotiated agreement provides a substandard “quantity” of release time. (Id. at p. 16 (emphasis supplied).) County of Riverside (2013) PERB Decision No. 2307-M (Riverside I) clarified San Mateo in an important respect, limiting its holding to its specific context—a union challenging an agreement’s provision as to the quantity of allowable release time. (Id. at pp. 29-30.) Taking San Mateo and Riverside I together, the Board further clarified that a union cannot challenge an operative collective bargaining agreement setting the number of employees released for bargaining or the quantity of allowable release time, as those topics are bargainable. In contrast, the right to receive release time without loss of compensation or other benefits is a non-waivable minimum statutory guarantee. (pp. 7-8.)

Where the County violated MMBA section 3505.3(a) by failing and refusing to credit release time for the purpose of determining overtime eligibility, the Board ordered that the County must: (1) prospectively comply with MMBA section 3505.3(a) by crediting release time for the purpose of determining overtime eligibility; and (2) make whole any employee who would have earned overtime by working over 40 hours within a single workweek in the absence of negotiations, yet saw such overtime reduced or eliminated because certain work hours were replaced by release time and therefore not credited for the purpose of determining overtime. (p. 17.)

When one union decertifies another and replaces it as a bargaining unit’s exclusive representative, the succeeding union is not contractually bound by its predecessor’s MOA absent an explicit agreement to be bound. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 11, fn. 6.) Most terms of the predecessor MOA nonetheless constitute the status quo, meaning neither party can deviate from such terms before bargaining to a good faith impasse or agreement. (Ibid.) But statutory rights waivers are an exception; they are purely contractual and therefore normally do not form part of the status quo. (See San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 26-27 (San Bernardino).) (p. 15, fn. 8.)