Filed 5/29/20 Certified for Partial Publication 6/26/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

COUNTY OF FRESNO,

Plaintiff and Respondent,

v.

FRESNO DEPUTY SHERIFF’S 

ASSOCIATION et al.,

Defendants and Appellants.

F076417

(Super. Ct. No. 15CECG02375)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Samuel J. 

Dalesandro, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Messing Adam & Jasmine, Gary M. Messing, Jason H Jasmine and Lina 

Balciunas Cockrell for Defendants and Appellants.

Daniel C. Cederborg, County Counsel, Catherine E. Basham, Deputy County 

Counsel, for Plaintiff and Respondent.

-ooOooTwo sheriff’s deputies, through their employee organization, filed a grievance 

challenging their involuntary reassignment from their specialty assignments to patrol 

assignments. They asserted the reassignments violated both the Memorandum of 

Understanding (MOU) between the County of Fresno (the county) and the employee 

organization, and an established past practice that deputies would not be involuntarily 

reassigned in the absence of disciplinary issues, documented performance issues, layoffs,
2.

or pending disability retirement. The administrative hearing of the grievance resulted in a 

decision in favor of the deputies. The county filed a petition for a writ of mandate to 

reverse the decision, and the trial court granted the petition. The employee organization 

and the deputies appeal. We conclude the arbitrator who heard the matter abused his 

discretion because his findings were not supported by substantial evidence. Accordingly, 

we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants Greg Isaac and Kirby Alstrom are employed by the Fresno County 

Sheriff’s Office (the department) as deputy sheriffs. For several years prior to December 

2014,1they held specialty assignments as detectives, with Isaac in the Vice/Intelligence 

Unit (vice intelligence) and Alstrom in the Agricultural Crimes Task Force (ag task 

force).

A specialty assignment is an assignment to a detective unit, a non-patrol function. 

Specialty assignments include positions in units such as the U.S. Marshals Fugitive Task 

Force, the Multi-Agency Gang Enforcement Consortium (MAGEC), the ag task force, 

and vice intelligence. The department fills vacancies in specialty units by sending out 

flyers to the entire department, which announce an opening and specify the minimum 

qualifications, taking applications, and conducting examinations. Any deputy who has 

passed the patrol training program and is a working deputy in the courts or patrol unit is 

eligible to apply.

In April, Isaac’s sergeant told him he was being reassigned from vice intelligence 

to patrol because of his tenure with the unit. In September, Alstrom’s sergeant told him 

he would be returning to patrol in December. Alstrom was told he was being reassigned 

because some detectives had been in the specialty unit for a long time, and patrol deputies 

were complaining of the lack of opportunities to move into specialty assignments.

 

1 Subsequent references to months and dates are to months and dates in the year 2014,

unless otherwise stated.
3.

Each deputy who works in patrol is assigned to a slot that designates the area, 

shift, and days off the deputy will have. Each year, the department has an opportunity to 

reconfigure its patrol shifts in the different areas it covers. It allows deputies to choose 

their patrol shift assignments based on seniority. These annual seniority shift sign-ups 

generally occur every October or November, and the shift changes go into effect every 

December. Isaac and Alstrom both participated in the annual seniority shift sign-ups for 

patrol in October and moved into their patrol assignments in December.

Both deputies testified they did not believe they could be reassigned from their 

specialty assignments to patrol involuntarily, absent documented performance problems 

or grounds for discipline. Neither deputy had disciplinary nor documented performance 

problems; both had received positive performance evaluations. They did not consent to 

reassignment and, through the deputies’ bargaining representative, appellant Fresno 

Deputy Sheriff’s Association (the association), they filed a grievance in protest.

The parties apparently agreed to have the grievance heard by an arbitrator, in lieu 

of the grievance committee provided for in the grievance procedure in the MOU. The 

issues presented to the arbitrator, as framed by the parties, were: “Did the [department]

violate the [MOU] between the [c]ounty and the [association] when [Isaac and Alstrom]

were involuntarily transferred from their special[ty] assignments? And if so, what is the 

remedy?” The arbitrator sustained the grievance, concluding that, in violation of the 

department’s obligation to negotiate terms and conditions of employment, the department 

unilaterally changed its past practice of only involuntarily transferring deputies from their 

specialty assignments on the basis of disciplinary issues, documented performance issues, 

layoffs, or disability retirement. The decision ordered the department to cease and desist 

from involuntarily transferring deputies from their specialty assignments on other 

grounds. It also gave Isaac and Alstrom the opportunity to return to their specialty 

assignments, if they chose to do so.
4.

The MOU provided that the decision on the grievance would be reviewable by 

administrative writ of mandate, pursuant to Code of Civil Procedure section 1094.5.2 

The county petitioned for a writ to reverse the arbitrator’s decision. After considering the 

administrative record of the hearing and the arguments of counsel, both written and oral, 

the trial court granted the petition. It ordered issuance of a writ of mandate vacating the 

administrative decision and denying the grievance filed by the association on behalf of 

Isaac and Alstrom. The association, Isaac, and Alstrom appeal the judgment.

DISCUSSION

I. Standard of Review

When the trial court reviews the decision of an administrative body pursuant to 

section 1094.5, the inquiry “shall extend to the questions whether the respondent has 

proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and 

whether there was any prejudicial abuse of discretion. Abuse of discretion is established 

if the respondent has not proceeded in the manner required by law, the order or decision 

is not supported by the findings, or the findings are not supported by the evidence.” 

(§ 1094.5, subd. (b).)

The appellate court applies substantial evidence review. (SP Star Enterprises, Inc. 

v. City of Los Angeles (2009) 173 Cal.App.4th 459, 469.) If a fundamental vested right 

was involved, and the trial court therefore exercised independent judgment, the appellate 

court reviews the decision of the trial court. (Ibid.) If the trial court “applied substantial 

evidence review because no fundamental vested right was involved, then the appellate 

court’s function is identical to that of the trial court. It reviews the administrative record 

to determine whether the agency’s findings were supported by substantial evidence, 

resolving all conflicts in the evidence and drawing all inferences in support of them.” 

(Ibid.) “If the administrative findings are supported by substantial evidence, the next 

 

2 All further statutory references are to the Code of Civil Procedure unless otherwise 

indicated.
5.

question is one of law—whether those findings support the agency’s legal conclusions or 

its ultimate determination.” (JKH Enterprises, Inc. v. Department of Industrial Relations

(2006) 142 Cal.App.4th 1046, 1058–1059.) Here, the parties agree the case does not 

affect a fundamental, vested right, so we review the decision of the arbitrator and apply 

the substantial evidence standard.3

“Because [memorandums of understanding] are binding agreements between local 

agencies and designated employee representatives, when the meaning of a[ memorandum 

of understanding] is in dispute we apply de novo review, exercising our independent 

judgment. [Citation.] ‘It is a judicial function to interpret a contract or written document 

unless the interpretation turns upon the credibility of extrinsic evidence.’ ” (National 

City Police Officers’ Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1278.)

II. Prior Proceedings

A. Administrative proceedings

On or about September 23, the association, on behalf of Isaac, Alstrom, and “all 

those similarly situated” (capitalization omitted), filed a grievance alleging the deputies 

were adversely affected by the misapplication of (1) the MOU, and (2) a clearly 

established lawful past practice. The association alleged there was no written agreement 

regarding rotation in and out of specialty assignments. However, they asserted there was 

a long-standing past practice of allowing deputies to remain in their specialty assignments 

until they chose to leave, promoted out of the assignment, or retired. The association 

asserted the MOU did not allow the department to involuntarily reassign deputies out of 

their specialty assignments, absent documented performance issues, such as a disciplinary 

transfer. The department, however, believed it could transfer a deputy from a specialty 

 

3

In the trial court, the county argued the independent judgment standard applied because, 

as a charter county, its right to assign and reassign its employees was fundamental and vested 

pursuant to California Constitution, article XI, section 4, subdivision (f). The trial court found 

the right in issue was contractual, rather than fundamental and vested, so it did not apply the 

independent judgment standard. The county does not challenge that conclusion in this appeal, 

and cites the substantial evidence standard as the appropriate standard of review.
6.

assignment based on being in the assignment too long; Isaac and Alstrom were the 

subjects of this type of transfer. The association alleged the involuntary transfers were a 

change from past practice that violated article 53 of the MOU, the waiver clause.

The department denied the grievance, rejecting the contention it misapplied the 

MOU. It asserted it had the right, under article 38 of the MOU, the management rights 

clause, to involuntarily move deputies and sergeants from one assignment to another, 

based on the department’s needs, and it had done so in the past. It asserted: “The ability 

to move employees from one assignment to another is critical to giving employees the 

necessary job knowledge and experience to promote the growth and development of our 

employees and the [department].” It provided a list of some who had been involuntarily 

reassigned.

The arbitrator heard the matter over the course of two days. In his decision, he 

identified the baseline issue as one of contract interpretation—interpreting the application 

of articles 38 and 53 of the MOU. He found “based on the four corners of the MOU the 

[a]ssociation has been persuasive in [its] contention that the [department] violated the 

terms of the MOU. This is due to the fact that the [d]epartment had stepped over the line 

in [its] interpretation of the MOU, when [it] determined that [Isaac and Alstrom] could be 

involuntarily transferred even though they did not want to leave the [specialty]

assignments.” The arbitrator concluded there was a longstanding past practice that 

involuntary transfers out of specialty assignments were limited to transfers based on 

discipline, documented performance issues, layoffs, or pending disability retirement. The 

arbitrator sustained the grievance, concluding: “based on the evidence the arbitrator’s 

finding is that the [d]epartment violated Government Code Section 3505 and [a]rticle 53 

of the MOU, when it unilaterally changed the past practice of involuntar[il]y transferring 

the deputies from their special[ty] assignments based on criteria other than that of 

disciplinary issues, documented performance issues, layoff[s,] or disability retirement.”
7.

B. Trial court proceedings

The county petitioned the trial court for an administrative writ of mandate 

overturning the decision of the arbitrator. It asserted the arbitrator abused his discretion, 

“because the evidence submitted does not support the finding that [the c]ounty 

misapplied any section of the MOU or acted contrary to any lawful past practice.” 

Additionally, the arbitrator’s decision constituted an error of law, because the arbitrator 

“failed to interpret [a]rticles 38 and 53 of the MOU in a manner that harmonized the two 

provisions.”

The trial court granted the petition. It noted that, while the arbitrator identified the 

baseline issue as one of contractual interpretation, he “devoted almost no discussion to 

the relevant MOU provisions.” The trial court analyzed articles 38 and 53 of the MOU. 

It concluded article 38 granted the department “the power to assign, reassign, and 

determine the procedures and standards for reassignment of employees.” Article 38 did 

not limit the department’s power to reassign employees to situations in which there was a 

performance, disciplinary, or similar justification for the reassignment. Article 53 

precluded unilateral changes in matters included in the MOU during its term. It waived 

the parties’ obligation to meet and confer over matters included in the MOU or within the 

scope of negotiation during the term of the MOU; it did not limit the county’s rights as 

set out in the MOU.

Regarding the issue of past practice, the trial court noted the arbitrator did not 

identify any testimony or other evidence that supported his conclusion that the parties had 

a past practice of limiting involuntary transfers out of specialty assignments to situations 

in which the transfer was due to disciplinary reasons, documented performance issues, 

layoffs, or pending disability retirement. It reviewed the evidence in the administrative 

record and applied the test for determining when a past practice has been established by 

the evidence. A binding past practice must be unequivocal, clearly enunciated and acted 

upon, and readily ascertainable over a reasonable period of time as a fixed and 
8.

established practice accepted by both parties. The trial court concluded the 

administrative record did not contain substantial evidence supporting the arbitrator’s 

finding that there was an established past practice of making involuntary transfers only in 

the limited situations he described. Further, it decided the arbitrator exceeded his 

jurisdiction by concluding the department violated Government Code section 3505. The 

arbitrator did not discuss the statute in his decision; the issue was not raised in the 

grievance and was not properly before the arbitrator.

C. Grievance

Article 49 of the MOU sets out the employee grievance procedure, pursuant to 

which the association and the deputies filed their grievance. It provides, in pertinent part:

“A grievance is a complaint relating to any phase of an employee’s 

employment or working conditions which the employee believes has been 

adversely affected because of:

“A misapplication of a Memorandum of Understanding, Ordinance or 

Resolution of the Board of Supervisors, or of the written policies, 

administrative orders, or a clearly established lawful past practice of a 

department, relating to the employment of the individual ....”

The grievance in this case alleged a misapplication of both the MOU and a past 

practice of the department. We analyze both allegations.

III. Violation of the Express Terms of the MOU

Under the Meyers-Milias-Brown Act (MMBA; Gov. Code, §§ 3500–3511),4

public employees have the right to be represented by employee organizations in all 

 

4 We grant appellants’ unopposed requests for judicial notice, filed May 7, 2018, and 

November 27, 2018, and the county’s unopposed request for judicial notice filed September 4, 

2018, all of which request judicial notice of Public Employment Relations Board (PERB) 

decisions applying the MMBA. The MMBA “governs collective bargaining and employeremployee relations for most California local public entities, including cities, counties, and 

special districts.” (Coachella Valley Mosquito & Vector Control Dist. v. California Public 

Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077.) PERB is vested with exclusive 

jurisdiction over most alleged violations of the MMBA, although peace officers are exempt from 

that jurisdiction. (Coachella Valley Mosquito & Vector Control Dist. at p. 1077 & fn. 1; Gov. 
9.

matters of employer-employee relations. (Gov. Code, §§ 3502, 3503.) “The MMBA 

applies to local government employees in California. [Citation.] ‘The MMBA has two 

stated purposes: (1) to promote full communication between public employers and 

employees, and (2) to improve personnel management and employer-employee relations. 

[Citation.] To effect these goals the act gives local government employees the right to 

organize collectively and to be represented by employee organizations [citation], and 

obligates employers to bargain with employee representatives about matters that fall 

within the “scope of representation” [citations].’ [Citation.] The duty to meet and confer 

in good faith is limited to matters within the ‘scope of representation ....’ ” (Claremont 

Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630, fn. omitted.) The 

scope of representation includes wages, hours, and other terms and conditions of 

employment. (Gov. Code, § 3504.)

The public agency employer must meet and confer in good faith with the 

employee organization on matters within the scope of representation prior to arriving at a 

determination of policy or a course of action. (Gov. Code, § 3505.) If the public agency 

and the employee organization reach a tentative agreement, and the governing body of 

the public agency adopts the tentative agreement, “the parties shall jointly prepare a 

written” MOU. (Gov. Code, § 3505.1.) Under the MMBA, an MOU adopted by the 

governing body of a public agency becomes a binding and enforceable contract that 

neither party may change unilaterally. (City of Los Angeles v. Superior Court (2013) 

56 Cal.4th 1086, 1092–1093.)

MOU’s are binding contracts and are interpreted in accordance with the general 

rules of contract interpretation. (National City Police Officers’ Assn. v. City of National 

City, supra, 87 Cal.App.4th at pp. 1278–1279.) The goal of contract interpretation is to 

effectuate the mutual intent of the parties as it existed at the time of contracting insofar as 

 

Code, § 3511.) Accordingly, PERB’s past decisions are relevant to interpretation and application 

of the MMBA.
10.

it is ascertainable and lawful. (Id. at p. 1279.) “ ‘Such intent is to be inferred, if possible, 

solely from the written provisions of the contract. [Citation.] The “clear and explicit”

meaning of these provisions, interpreted in their “ordinary and popular sense,” unless 

“used by the parties in a technical sense or a special meaning is given to them by usage”

[citation], controls judicial interpretation. [Citation.] Thus, if the meaning a layperson 

would ascribe to contract language is not ambiguous, we apply that meaning.’ ” (Hervey 

v. Mercury Casualty Co. (2010) 185 Cal.App.4th 954, 961.) No extrinsic evidence was 

offered regarding the meaning the parties intended be given to articles 38 and 53 at the 

time of contracting. Consequently, we determine the meaning of these provisions de 

novo.

The arbitrator did not interpret the language of the MOU. Although he concluded, 

“based on the four corners of the MOU,” that the department violated the MOU by 

involuntarily transferring Isaac and Alstrom, when they did not fall within any of the 

categories he deemed permissible and they did not want to leave their specialty 

assignments, he did not identify any provision of the MOU prohibiting involuntary 

transfers. The trial court correctly interpreted the language of the MOU, concluding 

article 38 conferred on the county the right to reassign its employees and article 53 did 

not limit that right.

Article 38 of the MOU, the management rights clause, provided, in part:

“A. All [c]ounty rights, powers, functions, and authorities except as 

expressly abridged by this MOU shall remain vested in the [c]ounty 

whether or not they have been exercised in the past. [¶] ... [¶]

“H. The rights, powers, and authorities of the [c]ounty include, but are not 

limited to, the sole and exclusive right to: [¶] ... [¶]

“4. select, train, direct, assign, demote, promote, layoff, dismiss its 

employees; [¶] ... [¶]

“7. relieve its employees from duty or reassign employees because of lack 

of work or for other reasons the [c]ounty considers legitimate; [¶] ... [¶]
11.

“9. determine and change the method, means, personnel, and standards by 

which [c]ounty operations are to be conducted; [¶] ... [¶]

“13. make rules and regulations pertaining to employees consistent with 

this MOU; ...”

Thus, on the face of the MOU, the county, with the agreement of the association, 

reserved to itself all rights not expressly abridged by other provisions of the MOU; the 

MOU specifically granted the county the “sole and exclusive right” to assign its 

employees, and to reassign them for reasons the county considered legitimate.

Article 53 of the MOU, the waiver clause (also referred to as the zipper clause), 

provided:

“The parties acknowledge that, for the life of this MOU, each voluntarily 

and unqualifiedly waives the right, and each agrees that the other shall not 

be obligated, to bargain collectively with respect to any subject or matter 

pertaining to or covered by this MOU, or any other matter within the scope 

of negotiations, notwithstanding any other provisions of law to the contrary. 

Furthermore, the parties agree that neither party shall lobby the board of the 

other party regarding making changes on matters within the scope of 

negotiations that could occur during the term of the MOU.”

“ ‘[T]he general purpose of a zipper clause is to “zip up” the collective bargaining 

agreement. It insulates both parties to the agreement from a demand by the other party to 

reopen negotiations with the intent of modifying or adding to the current contract terms 

or otherwise changing the status quo.’ It does not insulate the unions (or the City) from 

timely requests to begin bargaining about the next [memorandum of understanding].” 

(City of Fresno v. People ex rel. Fresno Firefighters (1999) 71 Cal.App.4th 82, 98.) 

Thus, once the parties have agreed on the provisions of the MOU, the zipper clause locks 

them in place for the duration of the agreement. Neither party can compel the other to 

renegotiate the MOU’s provisions or to negotiate additional provisions until it is time to 

negotiate a new MOU. Because any changes to the agreement must be negotiated, and 

they cannot be negotiated during the term of the MOU, the MOU cannot be unilaterally 

changed during its term.
12.

As the trial court observed, the management rights clause granted the county the 

right to assign and reassign deputies, without limiting the reassignment right to cases of 

discipline, poor performance, and the like. Consequently, the department did not violate 

the express written terms of the MOU by reassigning Isaac and Alstrom involuntarily, 

even in the absence of disciplinary issues, documented performance issues, layoffs, or 

pending disability retirement.

Appellants argue that the MOU reserved to the county its reassignment rights 

“except as expressly abridged by this MOU” (article 38, section A), and the zipper clause 

expressly abridged those rights. We reject this argument. The zipper clause did not 

contain any provisions limiting the county’s reassignment rights. Further, the function of 

a zipper clause is not to abridge or alter the substance of any of the other provisions to 

which the parties agreed in the MOU. Once an agreement is reached on the other 

provisions, the zipper clause locks them in for the duration of the MOU’s term. It 

prevents either party from unilaterally changing those provisions and from compelling 

renegotiation of the agreed upon provisions, unless the parties agree to reopen 

negotiations. It does not change the substance of the other provisions of the MOU. The 

zipper clause in the parties’ MOU did not change or limit the scope or application of the 

rights actually agreed upon in article 38.

Consequently, we conclude the arbitrator incorrectly interpreted the MOU when 

he determined that, “based on the four corners of the MOU the [a]ssociation has been 

persuasive in [its] contention that the [department] violated the terms of the MOU ... 

when [it] determined that [Isaac and Alstrom] could be involuntarily transferred even 

though they did not want to leave the [specialty] assignments.” Appellants did not 

establish a violation by the county of the express terms of the MOU.

IV. Violation of Past Practice

The second ground for appellants’ grievance was their allegation that the parties 

had established a past practice that deputies would not be reassigned out of their specialty 
13.

assignments except for specified reasons, and that the practice was unilaterally changed 

by the department when Isaac and Alstrom were reassigned to patrol. The arbitrator 

found in their favor on that claim.

A public agency may not “[r]efuse or fail to meet and negotiate in good faith with 

a recognized employee organization.” (Gov. Code, § 3506.5, subd. (c).) “An employer’s 

unilateral change in terms and conditions of employment within the scope of 

representation is, absent a valid defense, a per se refusal to negotiate ....” (California 

State Employees’ Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 

934.) An existing and acknowledged practice affecting conditions of employment has the 

same dignity as an existing agreement, when it is sufficiently widespread and of 

sufficient duration. (Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 

817.) Thus, an employer’s unilateral change in a well-established practice may violate its 

duty to meet and negotiate in good faith with the employee organization prior to changing 

the terms and conditions of employment.

“[U]nder standards established by PERB, to prevail on a complaint of illegal 

unilateral change, the union must establish: (1) the employer breached or altered the 

parties’ written agreement, or own established past practice; (2) such action was taken 

without giving the exclusive representative notice or an opportunity to bargain over the 

change; (3) the change is not merely an isolated breach of the contract, but amounts to a 

change of policy, i.e., the change has a generalized effect or continuing impact on 

bargaining unit members’ terms and conditions of employment; and (4) the change in 

policy concerns a matter within the scope of representation.” (California State 

Employees’ Assn. v. Public Employment Relations Bd., supra, 51 Cal.App.4th at p. 935, 

italics added.) The issue argued by the parties in this appeal is whether substantial 

evidence supports the arbitrator’s conclusion on the first element: that the department 

unilaterally altered the parties’ established practice of not involuntarily reassigning

deputies from their specialty assignments, unless the reassignment was the result of
14.

discipline, documented performance issues, layoffs, or pending disability retirement. 

This encompasses two subissues: (1) whether substantial evidence supports the implied 

finding that such an established practice existed; and (2) whether substantial evidence 

supports a finding that the department unilaterally changed the past practice when it 

reassigned Isaac and Alstrom.

A. Alleged trial court error

Appellants argue that the trial court failed to look for evidence supporting the 

administrative decision and substituted its judgment for that of the arbitrator. The 

argument is moot. In this appeal, our review standard is identical to that of the trial court. 

(Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.) We review 

the administrative decision to determine whether substantial evidence supports the 

findings, and whether the findings support the decision. (§ 1094.5, subd. (b).) “Possible 

misapplication of the review standard below has no bearing on the outcome here.” 

(Sierra Club, at p. 611.)

B. Effect of the terms of the MOU

The county argues that, when the language of an MOU is clear and unambiguous, 

it is unnecessary and inappropriate to examine past practice (citing Marysville Joint 

Unified School District (1983) PERB Dec. No. 314 [7 PERC ¶ 14163] (Marysville)). It 

asserts the MOU was clear in setting out the county’s right to assign and reassign 

deputies, so the arbitrator should not have considered past practice in interpreting the 

contract.

In Marysville, the collective bargaining agreement “entitled teachers to ‘one duty 

free lunch break of no less than 30 minutes each day.’ ” (Marysville, supra, PERB Dec. 

No. 314 at p. 8 [7 PERC ¶ 14163, p. 8].) The consistent practice of the district had been 

to allow teachers a 55-minute duty-free lunch break. During a budget crisis, the district 

assigned teachers to supervise students during the lunch period, reducing their duty-free 

lunch break to 30 minutes. (Id. at pp. 3–4.) The teachers challenged this as a unilateral 
15.

change in their hours. The PERB decision stated: “An employer violates its duty to 

negotiate in good faith when it unilaterally changes an established policy affecting a 

negotiable subject matter without affording the exclusive representative a reasonable 

opportunity to bargain. [Citations.] Established policy may be embodied in the terms of 

a collective agreement [citation] or, where a contract is silent or ambiguous as to a policy, 

it may be ascertained by examining past practice or bargaining history. [Citations.] 

However, where contractual language is clear and unambiguous, it is unnecessary to go 

beyond the plain language of the contract itself to ascertain its meaning.” (Id. at pp. 8–9.) 

Because the provision for a duty-free lunch break of no less than 30 minutes was 

unambiguous, PERB concluded the district acted consistently with its contractual 

obligations. Further, “[t]he mere fact that an employer has not chosen to enforce its 

contractual rights in the past does not mean that, ipso facto, it is forever precluded from 

doing so. [Citation.] Accordingly, we find that the Association, by agreeing to a 

contractual provision which plainly permitted the District to grant teachers a lunch period 

of 30 minutes or longer at its discretion, waived its right to negotiate over the District’s 

reduction of the lunch period to 30 minutes.” (Id. at p. 10.)

In Oakland Unified School District (2005) PERB Decision No. 1770 [29 PERC 

¶ 143], the school district, after negotiating a new collective bargaining agreement with 

the school employees’ association, eliminated its police force and entered into a contract

in which it agreed to pay the city to provide police protection. (Id. at p. 3) The school 

employees’ association challenged the change as subcontracting of bargaining unit work 

to a third party, which the district failed to negotiate. The district claimed its action was 

authorized by the management rights clause in the collective bargaining agreement. In 

that clause, the district “retain[ed] the exclusive right to manage the school district 

including, but not limiting, its rights to determine the methods, means and personnel by 

which the District operations are to be conducted; and to determine the missions and 

functions of each of its departments, sites, facilities and operating units, ...” (Id. at 
16.

p. 48.) A prior PERB decision had determined that a broadly based management rights 

clause would not be construed as a waiver of statutory bargaining rights, because any 

waiver of a right to bargain was required to be clear and unmistakable. (San Jacinto 

Unified School District (1994) PERB Dec. No. 1078, p. 18 [19 PERC ¶ 26036, p. 18].) 

The management rights clause in Oakland Unified School District did not specifically 

address either subcontracting or police services. PERB concluded the management 

clause before it was “a generally worded clause without reference to subcontracting or 

police services and therefore [did] not support the unilateral action by the District.” 

(Oakland Unified School District, at p. 9.)

In County of San Bernardino (Office of the Public Defender) (2015) PERB 

Decision No. 2423-M [39 PERC ¶ 165], PERB rejected the public defender’s argument 

that past practice trumped the wording of the memorandum of understanding, stating: 

“[W]hen parties’ past practice conflicts with the wording of their [collective bargaining 

agreement], each party ‘still maintains the right to adhere to and enforce the contractual 

language of the [collective bargaining agreement].’ ” (Id. at p. 53.)

Thus, when the action of the employer that is being challenged is directly 

addressed in the MOU, the parties are bound by the terms of the written agreement even 

when the employer has not exercised its rights previously. When the employer’s action is 

addressed in an ambiguous provision, evidence of a past practice may assist in 

interpreting the ambiguous provision. When the MOU does not specifically address the 

situation, a past practice that is not inconsistent with the terms of the MOU may be 

enforceable if it is sufficiently established.

In this case, as in Oakland Unified School District, the employer relies on a 

management rights provision in the MOU as authorizing the challenged change in 

working conditions. Unlike the general management rights provision in Oakland Unified 

School District, which did not mention subcontracting or police services (the changed 

working conditions), the management rights clause in this case (article 38) specifically 
17.

granted the county the right to assign and reassign employees. Although the clause was 

not as specific to the challenged conduct as the provision for a 30-minute lunch period in 

Marysville, article 38 did expressly permit the county to assign and reassign employees 

for reasons it considered legitimate, and to determine the procedures and standards for 

reassignment. Involuntarily reassigning deputies, even in the absence of disciplinary 

issues, documented performance issues, layoffs, or pending disability retirement was 

consistent with article 38. The association, by agreeing to the management rights clause, 

agreed that the county had the sole and exclusive right to assign and reassign employees 

for reasons it considered legitimate, and to determine the procedures and standards for 

reassignment. The department’s action in reassigning Isaac and Alstrom was consistent 

with these terms of the MOU. By granting the county this authority to reassign 

employees, the association made a clear and unmistakable waiver of its right to 

renegotiate the grounds on which the county was permitted to reassign its employees, and 

the procedures for doing so, during the term of the MOU.

We conclude the association failed to establish that the MOU was ambiguous or 

silent regarding reassignment of employees, and therefore there was no need to consider 

the past practices of the parties to determine whether the county violated its obligation to 

negotiate a change in practice.

C. Existence of a past practice

1. Legal requirements for establishing a past practice

Even if we were to find that the MOU was ambiguous and the arbitrator was 

permitted to consider past practice in determining whether the department failed to 

negotiate prior to changing its reassignment practices, appellants failed to demonstrate 

that the alleged past practice existed and was unilaterally changed by the county.

2. Evidence presented

Isaac testified he was a deputy sheriff and had been employed by the department 

for 16 years. He was assigned to vice intelligence (a specialty assignment) for 
18.

approximately eight years, until he was reassigned to patrol in December. He had no 

record of discipline and no documented performance issues. On April 4, after seeing a 

flyer announcing an available position in MAGEC, he emailed to express interest in 

applying. He notified his sergeant that he had applied, because it was normal protocol for 

a deputy to let the supervisor know when the deputy applied for a position in another 

unit. Isaac told the sergeant he was not unhappy in vice intelligence, and, if he did not 

obtain the position in MAGEC, he would be happy to continue in vice intelligence. After

discussing the matter with his wife, however, Isaac informed his sergeant on April 7, that 

he was going to withdraw his application to MAGEC and remain in vice intelligence. On 

April 8, his sergeant told him it would not be a good idea to withdraw his application to 

MAGEC because their lieutenant had been tasked with removing a deputy and had 

chosen to remove Isaac. The sergeant said Isaac would be replaced; the reassignment 

was due to Isaac’s tenure in the unit, even though other deputies had been there longer. 

Isaac was shocked, because he had been told he was doing a good job. The sergeant told 

Isaac he needed to find a new home, and the sergeant would have nothing but good things 

to say to other supervisors about Isaac, if he applied elsewhere.

Isaac felt he had no option but to leave his name in for MAGEC. Patrol was 

shorthanded, however, and the department did not fill the position in MAGEC. In June, 

Isaac’s sergeant asked if he had found a new home yet. Because he had not, the sergeant 

told him he needed to choose an area for his patrol assignment, or else the sergeant would 

have to choose one. Isaac was told he would be moved less than two weeks later. He 

called the association for help in challenging the reassignment. Isaac continued in his

specialty assignment until, after discussions with his lieutenant and being told he did not 

have a choice, he selected a patrol assignment in October, during the normal seniority 

shift signups. He began his patrol assignment in December.

Isaac testified he did not think he could be transferred without disciplinary or 

performance issues. He had heard of deputies being bullied out of their specialty 
19.

assignments by being threatened with a transfer or a schedule change or something, but 

his situation was different. The culture around the department was that, if the supervisor 

told a deputy to leave the specialty unit, it would happen whether it was voluntary or not. 

Many deputies left “voluntarily” under pressure; Isaac never heard of anyone being 

transferred involuntarily without discipline or performance issues. Isaac then admitted, 

however, that when deputies left under pressure, he considered it involuntary. Isaac 

believed his position was different because he never agreed to leave vice intelligence.

Robert Kandarian testified he was captain of the detective bureau of the 

department. The deputies working under him were in specialty assignments. He was in 

Isaac’s chain of command while Isaac was assigned to vice intelligence. Isaac’s 

lieutenant requested that Isaac be transferred because he was not a good fit in the unit, 

and he did not get along well with the others; Captain Kandarian approved Isaac’s 

transfer. Isaac was not given any choice about the transfer. Initially, Isaac was given a 

deadline by which to move. After discussing the matter with the sheriff and undersheriff, 

however, they decided to wait until the normal annual shift sign-ups and allow Isaac to 

sign up for a shift by seniority. Isaac signed up for a patrol slot.

Alstrom testified he had been working for the department for 23 years, almost all 

of that time as a deputy. He held a specialty assignment in the ag task force from 1999 to 

2003; he voluntarily returned to patrol for four years, then was again assigned to the ag 

task force for about seven years, until he went back to patrol in December. He enjoyed 

his ag task force assignment; he received good evaluations and had no disciplinary or 

performance issues.

The leadership of the ag task force changed in 2014. Several deputies went to the 

new sergeant and asked if they were all going to be able to stay; the sergeant said he had 

no plans to change the unit at that point. Then, on September 11, the sergeant told 

Alstrom he was going to be returning to patrol in December. The reason given was that 

some detectives had been in their positions a long time, and some patrol deputies were 
20.

complaining that there were no positions for them to move into. So, the department was 

going to remove some of the detectives who had been there a long time and allow new 

ones to move into those positions. The annual seniority shift sign-ups were delayed 

because of the grievance Alstrom and Isaac filed. The patrol deputies wanted to know 

what their assignments would be for the next year, so Alstrom asked Eric Schmidt, 

president of the association, to try to arrange to have the shift sign-ups go forward, while 

the grievance was fought in the background. Alstrom was forced to leave his assignment; 

he did not agree. Alstrom explored another specialty position but learned someone else 

had already gotten the job. He took the transfer to patrol but maintained his grievance.

Alstrom testified that, prior to his reassignment, he had heard of deputies being 

bullied out of specialty assignments. He explained that, when a new sergeant or 

lieutenant came in and wanted to make his or her own team, the sergeant would tell a 

deputy it was time to move on, the deputy had been there too long. If the deputy resisted, 

there were things the supervisor could do to push the deputy out, such as give bad writeups or poor evaluations; or the supervisor could help the deputy find a new position. 

Alstrom’s experience was different from that situation because he never agreed to the 

reassignment, but instead filed a grievance.

Alstrom was aware of situations in which a deputy was told to leave and did leave. 

In cases when a supervisor told a deputy it was time to find a new home, the deputy was 

being forced out. If the deputy did not find another specialty assignment, he or she would 

be transferred to patrol or courts. When a deputy was told to leave, it was not the 

deputy’s choice to leave, but normally the deputy would capitulate and go to the new 

assignment. Alstrom agreed with counsel’s definition of capitulation: the deputy went 

along with what he or she was told to do and did not fight it or file a grievance. 

Alstrom’s situation was different because those who capitulated ultimately agreed to their 

transfers; he never agreed, and he filed a grievance.
21.

Ryan Hushaw testified he was a sergeant with the department, assigned to the ag 

task force. On September 11, Sergeant Hushaw told Alstrom he would be signing up for 

patrol in December; this meant Alstrom would be leaving the ag task force. Alstrom 

seemed surprised, and they discussed his future options. Alstrom expressed interest in 

vice intelligence, and Sergeant Hushaw said he would put in a good word for Alstrom 

with the supervisor there.

Sergeant Hushaw told Alstrom the reason for the transfer was because the ag task 

force had become stagnant. The deputies in the unit did not want to leave, and deputies 

outside it complained of not having an opportunity to get in. Alstrom had been there the 

longest, so it made sense for him to leave. Alstrom expressed a desire to stay in the ag 

task force, but Sergeant Hushaw did not give Alstrom any choice in the matter.

James Lyman testified he had been a deputy with the department for 25 or 26 

years. He worked 14 years in MAGEC. He had no discipline issues, just traffic 

accidents. In about 2007, Lyman’s supervisor told him he had been there too long, and 

he needed to move. His supervisor did not move him then. In 2014, Lyman’s sergeant 

asked if he planned to retire in MAGEC. When he indicated he did, the sergeant told him 

he would not retire in MAGEC. Lyman understood that to mean he was being moved out 

of MAGEC; he was not given an option. The next day, Lyman told his supervisor he 

would put in a transfer. He asked to return to patrol. At the time, he believed he could be 

reassigned involuntarily only if the department needed him in a certain part of the 

department because of his deputy IV status.

Brandon Pursell testified he was a lieutenant with the department. He was a 

sergeant with MAGEC when Lyman was there. Lieutenant Pursell asked Lyman how 

much longer he planned to stay in MAGEC. Lyman said he was planning to stay the 

remainder of his career and retire from that position. Lieutenant Pursell told Lyman he 

wanted to remove Lyman from the unit but would give him the opportunity to find 

another position on his own. Lieutenant Pursell made it clear Lyman would be moved 
22.

either way. Lyman was not happy to hear this; he did not want to leave MAGEC. He 

went back to patrol, outside the normal seniority shift sign-ups.

Schmidt, the association president, testified that Lyman was not reassigned 

involuntarily; he put in a request to be returned to patrol.

Scott Plann testified he had been a deputy with the department for 14 years. From 

September 2005 to November 2008, he was assigned to the ag task force. He had no 

discipline or documented performance issues. In 2008, there was a new sergeant in the 

ag task force. Plann took leave when his wife had a baby and, when he returned, the 

sergeant told him it was time for him to leave the unit. Plann said he was not ready to 

leave yet, and the sergeant said if Plann did not go, the sergeant would make his life 

miserable. Plann ultimately went back to patrol. It was not his choice to do so; he 

wanted to stay in the ag task force for the foreseeable future, but he decided not to take 

on the extra stress of fighting the reassignment. It was not a voluntary transfer.

Sergeant Hushaw, who was assigned to the ag task force, testified Plann was 

removed from his position in the ag task force involuntarily before Sergeant Hushaw was 

assigned to the unit. Plann told Sergeant Hushaw his sergeant did not like him and 

wanted him out of the unit. Plann went back to patrol. He told Sergeant Hushaw he 

wanted to return to the ag task force. Captain Kandarian also testified Plann was 

transferred out of his specialty assignment involuntarily.

Lieutenant Pursell testified Plann was told he needed to leave his specialty

assignment. Plann told Lieutenant Pursell he believed he was replaced because the 

sergeant wanted to put a friend in the position. Plann did not tell Lieutenant Pursell he 

left voluntarily because of family issues; he said he left involuntarily.

Greg Gularte testified he was a captain with the department, supervising the patrol 

bureau and the operations support bureau. He testified that, in 2012, deputy Jon Sims 

was moved from a specialty assignment as a robbery property detective to patrol. 

Sergeant Irwin recommended to Captain Gularte, who was then a lieutenant, that Sims be 
23.

moved; Gularte approved the move. Sims did not request the reassignment, and he had 

no disciplinary or documented performance issues. He was moved because Sergeant 

Irwin was restructuring the team and it was time for Sims to go. Sims was not given the 

option of staying. He returned to patrol prior to the regular patrol seniority shift sign-ups, 

to a vacant position that fit his schedule.

According to Schmidt, the association president, Sims was just wrapping up a 

large case and was tired; there was a new sergeant in his unit, and he decided to go back 

to patrol when it came time for shift change. Sims also coached football, and his 

commitment to that was his priority at the time. Schmidt represented that Sims asked for 

the transfer.

Captain Gularte testified Mike Quintanilla was another robbery property detective 

who was asked to move back to patrol. Quintanilla was told the team was being 

restructured and it was time for him to leave. He was not given the option of staying. If 

he had not signed up for a patrol assignment, he would have been moved anyway. 

Captain Gularte explained that being “asked” to leave was preparatory; it meant the 

deputy was told he was being transferred, but was given an opportunity to sign up for a 

patrol position during regular seniority shift sign-ups, rather than being arbitrarily 

transferred into a vacant position that might not work for the deputy. The deputy was 

going to be transferred regardless of whether he signed up for a patrol slot or not.

Captain Gularte further testified that, in 2012, Sergeant Irwin told Anthony/Carlos 

Rodriguez,

5 a deputy assigned to the Boating Enforcement Unit, that he needed to move 

back to patrol. Rodriguez was transferred because he had been there for a period of time 

and the team was being changed; the transfer was also for his own development. 

Rodriguez had been asked to leave the prior year but had been allowed to stay. This time 

he had to leave; he was not given the option of staying. He signed up for patrol.

 

5 Captain Gularte testified Rodriguez used two first names interchangeably.
24.

Captain Gularte identified Steve Valassis as another deputy who was asked to 

leave his specialty assignment several years ago.

Eric Schmidt testified he was a deputy with the department, assigned as president 

of the association since 2008. His understanding was that the department had authority to 

transfer a deputy from a specialty assignment for discipline, for documented performance 

issues, when the deputy requested a transfer to a different specialty assignment, when the 

deputy was promoted, when the position was no longer funded, or when the deputy 

retired. If a new supervisor did not want a deputy in the unit any longer, the supervisor 

could, without involuntarily transferring the deputy, encourage the deputy to leave. If the 

deputy refused, there was nothing the supervisor could do. Schmidt testified he talked 

with Captain Jennifer Horton, who was patrol captain prior to Captain Gularte, and 

Captain Horton stated she was not going to move people involuntarily, if there was no 

disciplinary issue and the person’s job performance was correct.

Schmidt identified deputies who had been reassigned out of their specialty 

assignments at their own request, for administrative reasons, or due to discipline, loss of 

funding for the position, or reduction in the unit due to lack of work. Schmidt 

acknowledged that some deputies were told it was time for them to move on and they 

might want to find another assignment. On some occasions, when a new sergeant,

lieutenant, or captain came to a specialty unit, that new supervisor would want to make 

changes to the unit and would tell a deputy he or she needed to find another home, that is, 

another specialty assignment, or go back to patrol. The deputies Schmidt knew of took 

the hint and either went back to patrol or put in for a different specialty assignment. 

What could happen if a deputy did not take the hint was that the deputy could be 

blackballed; the deputy could be labeled a whiner, a complainer, and not a team player. 

The deputy could also be threatened with write-ups and discipline, which would follow 

the deputy in the future. A deputy could also be bullied into leaving a specialty 
25.

assignment by changing the deputy’s hours, schedule, or the type of crime to which the 

deputy was assigned.

Schmidt testified Isaac and Alstrom were forced out of their specialty positions; 

they were told they were going back to patrol. They said they liked their positions and 

did not want to go back to patrol. Their supervisors told them they had no choice and had 

to go back to patrol. They never agreed to the reassignments.

Schmidt further testified Isaac and Alstrom were told in September that they 

needed to leave the teams they were on. Seniority shift sign-ups for patrol took place 

roughly in October, so they had a period of time to look for vacant positions. Like any 

deputy told by a supervisor that the deputy needed to leave the specialty assignment, 

Isaac and Alstrom had the option of looking for another available specialty assignment.

Schmidt testified that, before the current grievance was filed, if a deputy was told 

he needed to leave an assignment, but he did not wish to go, he had a right to stay in that 

assignment. He based that conclusion on the fact that no deputy, prior to Isaac and 

Alstrom, had ever come to him, as the employee representative, and complained that the 

deputy was being forced out and did not want to go.

Captain Gularte testified the department has the right to assign and transfer 

deputies for the efficiency of the department. Deputies can be reassigned whether they 

have disciplinary or documented performance issues or not. As a supervisor, Captain 

Gularte had told deputies in specialty assignments that they needed to leave those 

assignments. Prior to Isaac and Alstrom, no deputy had filed a grievance because of a 

reassignment out of a specialty assignment.

Rick Ko testified he was a lieutenant with the department, assigned as watch 

commander. In that position, he was the sheriff’s representative on nights and weekends, 

when the executive staff is absent; during the day he oversees day-to-day patrol and field 

operations. In the past, he was the special investigations commander in the Special 

Investigations Division, which included vice intelligence and a number of other units. 
26.

Lieutenant Ko testified there was a process, through disciplinary proceedings and 

evaluations, to remove deputies from specialty units if the supervisor was unhappy with a 

deputy’s work. If there was no disciplinary reason to remove a deputy, Lieutenant Ko 

would want diversity in the unit and would not remove a deputy simply because he did 

not like the deputy.

It was Lieutenant Ko’s understanding, from conversations with the former 

undersheriff, that he could not transfer a deputy out of a unit if the deputy did not want to 

leave, unless there was cause. A deputy could be reassigned to another area, however, if 

the deputy had a special skill that was needed there, such as a pilot being assigned to air

support; Lieutenant Ko would want the employee to agree to the reassignment though, 

because he would not want someone who did not want to be there doing something 

dangerous. Additionally, often when a new sergeant moved into a unit, the sergeant 

would want to put his own signature on the unit or move deputies he had worked with 

before into the unit. Lieutenant Ko’s philosophy was that the sergeant should wait and, if 

in six months or a year a deputy in the unit was not a good fit, the sergeant could tell the 

deputy he might fit better somewhere else. The deputy would usually transfer out on his

own. If the deputy did not, the sergeant might document poor performance if that was an 

issue, or make the deputy’s life so miserable the deputy would transfer. Whether that 

was a voluntary or involuntary transfer was a matter of perception; the department would 

call it voluntary, but in reality it would be involuntary.

Lieutenant Ko acknowledged that other supervisors have told deputies in their 

specialty units that they needed to find a new home, and the deputies then left the units. 

He testified no one made Isaac’s and Alstrom’s lives miserable to get them to transfer.

They were just told they were out, and they were moved.

Lieutenant Pursell testified he understood counsel’s definition of bullying—

making someone’s life miserable so the person would leave a specialty assignment—but 
27.

he had not heard of that happening in the department and knew of no specific instances of 

it.

3. Substantial evidence standard

When a party challenges the evidentiary support for administrative findings, 

“abuse of discretion is established if the court determines that the findings are not 

supported by substantial evidence in the light of the whole record.” (§ 1094.5, subd. (c).) 

“To be ‘substantial,’ evidence must be reasonable in nature, credible, and of solid value.” 

(Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 409–410.) On 

appeal, we do not reweigh the evidence.

“ ‘The “in light of the whole record” language means that the court reviewing the 

agency’s decision cannot just isolate the evidence supporting the findings and call it a 

day, thereby disregarding other relevant evidence in the record. [Citation.] Rather, the 

court must consider all relevant evidence, including evidence detracting from the 

decision, a task which involves some weighing to fairly estimate the worth of the 

evidence. [Citation.]’ [Citations.] That limited weighing is not an independent review 

where the court substitutes its own findings or inferences for the agency’s. [Citation.] ‘It 

is for the agency to weigh the preponderance of conflicting evidence [citation]. Courts 

may reverse an agency’s decision only if, based on the evidence before the agency, a 

reasonable person could not reach the conclusion reached by the agency.’ ” (Sierra Club

v. California Coastal Com., supra, 12 Cal.App.4th at p. 610.)

4. Evidence of past practice

PERB has adopted a rule that, to be a binding past practice, the practice “ ‘must be 

(1) unequivocal; (2) clearly enunciated and acted upon; and (3) readily ascertainable over 

a reasonable period of time as a fixed and established practice accepted by both parties. 

[Citation.] [PERB] has ... described a valid past practice as one that is “regular and 

consistent” or “historic and accepted.” ’ ” (Riverside Sheriff’s Assn. v. County of 

Riverside (2003) 106 Cal.App.4th 1285, 1291.) Pursuant to the terms of the MOU, “[i]f a 
28.

grievance is alleged relating to a [clearly established lawful] past practice ... , the 

grievant must first establish that practice has existed.” Thus, in the administrative 

proceeding, the burden was on the association to establish the existence of the alleged 

past practice.

a. Unequivocal and clearly enunciated

One of the problems with the claim that a past practice existed was that appellants 

could not clearly enunciate an unequivocal practice that they contended was unilaterally 

changed by the department. In the grievance, the association described the alleged past 

practice as a long-standing practice of allowing deputies to stay in their specialty units 

until they chose to leave, promoted out, or retired. The grievance also alleged the MOU 

(rather than any past practice) did not permit the department to “move deputies when it 

has not documented performance issues, etc., i.e., disciplinary transfer.”

In its closing brief in the administrative proceeding, the association redefined the 

alleged past practice as “an established past practice of not involuntarily transferring a 

deputy out of a special[ty] assignment unless there was a disciplinary matter, documented 

performance issues, a layoff[,] or pending disability retirement. In other words, once a 

deputy earns a special[ty] assignment, the position is his or hers until such time as the 

deputy voluntarily leaves it or is transferred under the aforementioned limited 

circumstances.” The evidence, however, did not support such limited circumstances as 

the only grounds for involuntary transfers. Even Schmidt, the president of the 

association, admitted there were occasions when a deputy was told it was time to move 

on or to find another home, and the deputy complied.

The association conceded, in its closing brief in the administrative proceeding, that 

the evidence established another situation in which deputies could be transferred: “where 

the [d]epartment either makes life miserable for the deputy or tells the deputy that she/he 

needs to ‘find a new home,’ usually when new supervisors come into the detective unit.”

According to the association, all the deputies before Isaac and Alstrom “would capitulate 
29.

to the ‘bullying’ and agree to the transfer.” The association recognized that, in reality, 

such transfers were involuntary, because the deputy was told to move when he or she did 

not want to move. The association asserted, however, that “the affected deputies 

capitulated, or at least chose not to challenge this type of transfer. [Citation.] 

Accordingly, for the purposes of this arbitration, transfers resulting from being bullied 

should be considered voluntary.”

Thus, by the association’s own admission, the past practice it alleged—no 

involuntary transfers except for discipline, documented performance issues, layoffs, or 

pending disability retirement—only existed if we redefine the terms “voluntary” and 

“involuntary” to fit its theory. Appellants would have us redefine the term “involuntary” 

to exclude admittedly involuntary transfers similar to the transfers that affected Isaac and 

Alstrom (where a deputy was told he or she was being reassigned and had no choice in 

the matter), in an attempt to distinguish them from the transfers of Isaac and Alstrom.

The common meaning of the word “voluntary” is: “proceeding from the will : 

produced in or by an act of choice” or “not constrained, impelled, or influenced by 

another.” (Webster’s 3d New Internat. Dict. (1981) p. 2564.) “Involuntary is defined as 

“not subject to control of the will : independent of volition.” (Id. at p. 1191.) Substantial 

evidence did not support a conclusion that those who “capitulated” when told they were 

being reassigned were transferred by choice, not constrained, impelled, influenced, or 

controlled by the will of another. The testimony was uniform that those deputies who 

were told to find a new home, or were told they were being reassigned, did not choose to 

leave and were not given the choice of leaving or staying.

Following appellants’ reasoning to its logical conclusion, excluding situations 

involving disciplinary actions, documented performance issues, layoffs, and pending 

disability retirement, every reassignment initiated and required by the department would 

be voluntary if the employee complied by moving to the new position, even if the 

employee fervently wished to remain in the current position and expressed that desire. 
30.

Under this theory, the only involuntary transfers, and the only ones not permitted by past 

practice, would be those that resulted in a deputy filing a grievance. The evidence was 

undisputed, however, that no deputy before Isaac and Alstrom had ever filed a grievance 

when told to find a new home. Consequently, there was no evidence of an established 

past practice that the department would not make involuntary transfers, with the term 

“involuntary transfer” defined as a transfer the deputy challenged by filing a grievance.

Thus, substantial evidence did not establish an unequivocal and clearly enunciated 

past practice that the department would not make involuntary transfers in the absence of a 

disciplinary action, documented performance issue, layoff, or pending disability 

retirement.

b. Readily ascertainable and accepted by both parties

According to PERB, a binding past practice must not only be unequivocal and

clearly enunciated, it must also be acted upon by the parties and “readily ascertainable 

over a reasonable period of time as a fixed and established practice accepted by both 

parties.” In determining whether substantial evidence supported the existence of a past 

practice that was ascertainable, fixed and established, and accepted by both parties, we 

look to the facts to which the witnesses testified, not to the witnesses’ or the attorneys’ 

characterizations of those facts. That is, we look at the facts surrounding the 

reassignments and how they were accomplished, not at characterizations, such as 

voluntary, involuntary, agreed, acquiesced, or capitulated.

Initially we note there was no evidence that, over some reasonably long period of 

time, the only transfers actually made, other than those initiated by the deputy by his or 

her own choice, were those based on disciplinary matters, documented performance 

issues, layoffs, or a pending disability retirement. Rather, there was undisputed evidence 

that some deputies were told they were going to be transferred or they needed to find a 

new position, and they were subsequently transferred. There was no evidence the 

department asked these deputies for their consent to the reassignment, or declined to 
31.

reassign them if they did not consent or capitulate. The testimony was that the deputies 

were not given a choice regarding whether they would be transferred or not. The only 

choice they were given was whether they would return to patrol or apply for another 

specialty assignment.

Lieutenant Ko testified he believed he could not transfer a deputy out of a 

specialty unit unless he had cause. A deputy could be transferred based on performance 

or disciplinary action, or if the deputy had a special skill that would be useful in a 

particular unit. Lieutenant Ko stated his belief that deputies could be reassigned only for 

cause was based on discussions he had with the former undersheriff. Inconsistently, 

however, Lieutenant Ko testified that, four or five years previously, he had thought it 

might be time to move a deputy, John Avila, from his assignment in narcotics (in the 

Special Investigations Division), because Avila had been there 20 years and it might be 

time to give others an opportunity to join the unit. The former undersheriff would not let 

Lieutenant Ko transfer Avila, because Avila’s contacts made him a valuable asset to the 

unit. Notably, despite his professed belief he could not transfer deputies without cause, 

Lieutenant Ko proposed reassigning Avila simply because he had been in the unit a long 

time (the same reason given for Isaac’s and Alstrom’s reassignments), not for 

disciplinary or performance reasons. Further, the undersheriff opposed the reassignment 

because of Avila’s political connections and the value of his contacts with the state, not 

because of any department policy or practice that prohibited involuntary transfers not 

based on discipline or performance.

Lieutenant Ko also acknowledged that other supervisors have told their deputies 

that it is time for them to find a new home, and the deputies have moved to other areas.

Schmidt testified that the department could transfer a deputy out of a specialty 

assignment based on discipline, documented performance issues, loss of funding for the 

position, layoffs, and promotions. If a supervisor did not want a particular deputy in the 

unit, there was no mechanism for transferring the deputy. If the deputy refused to leave 
32.

the unit, there was nothing the supervisor could do. Schmidt conceded, however, that he 

had heard of situations in which a supervisor told a deputy it was time for the deputy to 

move on, to find another place to go, and the deputy moved back to patrol or applied for a 

position in another specialty unit. He acknowledged this had been going on for years.

Schmidt also testified that, before the current grievance was filed, if a deputy was 

told to leave a specialty assignment but did not want to go, the deputy had a right to stay 

in that position. He based this conclusion solely on the fact that no deputy, prior to Isaac 

and Alstrom, had come to him, as the employee representative, and complained of being 

forced out of a specialty assignment. Schmidt did not testify to any instance in which a 

deputy was told he was being reassigned, but was allowed to remain because the deputy 

asserted a right to refuse to be reassigned.

Schmidt also testified Captain Horton told him she was not going to reassign 

deputies without disciplinary reasons. While this may have been her expressed intent, 

there was no evidence she believed she lacked the authority to make reassignments for 

other reasons. There also was no evidence of her actual actions or practice; there was no 

evidence that, during her tenure as patrol captain, the department did not initiate any 

reassignments of deputies out of their specialty assignments against their wishes, for 

reasons other than disciplinary issues.

There was evidence the department reassigned several deputies who did not wish 

to be reassigned; there was no evidence they complained to Schmidt. The evidence 

indicated Lyman, Plann, Sims, Quintanilla, Rodriguez, and Valassis were transferred out 

of their specialty assignments; these deputies did not initiate the transfers.6 They were 

told by their supervisors that it was time to move, they needed to leave, or they needed to 

find a new home. None of these reassignments were based on discipline, documented 

 

6 There was conflicting evidence regarding Sims. Schmidt testified Sims requested the 

transfer and wanted to transfer. Captain Gularte, who was in Sims’s chain of command, testified 

Sims did not request the transfer. Sims’s sergeant told Sims it was time to leave because the unit 

was being restructured; he gave Sims no choice about transferring.
33.

performance issues, layoffs, or pending disability retirement. The evidence indicated the 

deputies did not wish to leave their specialty assignments but were not given the option 

of remaining.

7

 They complied with the department’s reassignment by participating in the 

annual seniority sign-ups for patrol or choosing a patrol shift prior to the annual sign-ups.

The arbitrator appeared to be distracted by testimony referring to bullying.8 The 

grievance did not raise any issue of bullying deputies out of their specialty positions. 

Isaac and Alstrom did not contend they were subjected to bullying, and there was no 

evidence that they were. Some witnesses made general statements that they had heard of 

bullying, but there was no specific evidence identifying any deputy who had actually 

been bullied and had left a specialty unit position as a result. The testimony consisted of 

rumor (what the witness “heard”) and speculation (about what a supervisor hypothetically 

could or might do). Although Plann testified his supervisor threatened to make his life 

miserable, he did not claim he was actually subjected to bullying. Further, there was no 

evidence Lyman, Sims, Quintanilla, Rodriguez, or Valassis was threatened or subjected 

to bullying. They were told they were being transferred, and they were transferred.

We conclude the administrative record does not contain substantial evidence—

evidence that is reasonable in nature, credible, and of solid value—that supports a 

 

7 The exception was Valassis. The only evidence regarding Valassis was testimony he was 

involuntarily reassigned. There was no specific testimony that he wished to remain in his 

position.

8 The arbitrator seemed to be concerned about what the policies and practices of the 

department should be, rather than what they were proven to be. The decision included these 

statements: “In the considered opinion of the arbitrator, the rights and obligations of the 

[department] and the rights and obligations of the employees who provide service to the public 

under the Sheriff[’]s direction must be free of a systemless action, which may appear to those at 

the receiving end as being a ‘bullying’ decision.... Any comment from representatives of 

management, who are identified as having an attitude reflecting that an involuntary reassignment 

would take place regardless of a deputy’s assent is, in the considered opinion of the arbitrator, 

detrimental to the spirit of positive labor/management relations.” Also, “within the working 

environment in which the law enforcement employees perform their services it is essential that 

the staff be free of potential bullying, including the avoidance of inside or outside political 

decision making [sic].”
34.

conclusion that the department had an unequivocal, clearly enunciated and acted upon, 

readily ascertainable, long-term, fixed and established past practice, accepted by both 

parties, of reassigning deputies out of their specialty assignments only based on 

disciplinary issues, documented performance issues, layoffs, or pending disability 

retirement. The finding of the arbitrator that a binding past practice existed is 

unsupported by the record.

D. Unilateral change in past practice

To prevail on a complaint that an employer made an illegal unilateral change to an 

established past practice, an employee or employee representative must establish that the 

employer changed its practice. There was no substantial evidence of a change in the

department’s practice.

The evidence presented in the administrative proceeding indicated that several 

deputies, who did not wish to leave their specialty units, had been reassigned out of their 

specialty units after their supervisors told them they would be transferred or they needed 

to find a new home. Isaac and Alstrom testified they were aware of deputies whose 

supervisors told them they needed to leave their specialty units, and they did leave. They 

acknowledged that these reassignments were not really voluntary; the deputies were not 

given a choice. Alstrom acknowledged this happened many times over the years.

Appellants attempted to distinguish other deputies’ experiences from the 

experiences of Isaac and Alstrom by asserting the other deputies ultimately agreed to, 

acquiesced in, or capitulated to the reassignment, and by labeling their reassignments 

“voluntary.” Appellants claim Isaac’s and Alstrom’s reassignments were different, 

because they never agreed or capitulated, and instead filed a grievance to fight the 

reassignments.

Ignoring labels, such as voluntary, involuntary, and capitulation, and looking only 

at the facts surrounding the reassignments, appellants concede the department’s past 

practice of making reassignments included telling deputies they needed to find a new 
35.

home or were being reassigned, after which the deputies were reassigned to patrol or 

another specialty assignment. Isaac and Alstrom, like Lyman, Plann, Sims, Quintanilla, 

Rodriguez, and Valassis, were told they were being reassigned, had the option of 

applying for another specialty assignment, were given the opportunity to sign up for a 

patrol position during the annual shift sign-ups based on their seniority, and were not 

given the choice of remaining in their specialty units. They all eventually selected a 

patrol assignment. The only difference between the experiences of Isaac and Alstrom 

and the experiences of the other deputies was that Isaac and Alstrom filed a grievance to 

challenge their reassignments. Thus, there was no change in the department’s actions 

from what it had done in the past. The only difference was the employees’ reaction to it: 

they filed a grievance. Consequently, substantial evidence does not support a finding that 

the department made a unilateral change in its own established past practice when it 

reassigned Isaac and Alstrom out of their specialty assignments and back to patrol against 

their wishes.

DISPOSITION

The trial court judgment granting the petition for writ of mandate and vacating the 

arbitrator’s decision is affirmed. The county is entitled to its costs on appeal.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

SMITH, J.

_____________________

MEEHAN, J.
Filed 6/26/20

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

COUNTY OF FRESNO,

Plaintiff and Respondent,

v.

FRESNO DEPUTY SHERIFF’S 

ASSOCIATION et al.,

Defendants and Appellants.

F076417

(Fresno Super. Ct. No. 15CECG02375)

ORDER GRANTING REQUEST 

FOR PUBLICATION

On June 18, 2020, this court received and filed a request for publication of 

the nonpublished opinion filed on May 29, 2020, in the above-entitled matter. It 

appearing that part of the nonpublished opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c), IT IS ORDERED that the opinion 

be certified for publication in the Official Reports with the exception of part IV.C. 

and D. of the Discussion.

_____________________

HILL, P.J.

WE CONCUR:

_____________________

SMITH, J.

_____________________

MEEHAN, J.