County of Riverside (PERB 2233M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,

Charging Party, Case No. LA-CE-470-M
Vv.
COUNTY OF RIVERSIDE, PERB Decision No. 2233-M
Respondent. January 23, 2012
COUNTY OF RIVERSIDE,
Charging Party, Case No. LA-CO-85-M
v.

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721,

Respondent.

Appearances: Weinberg, Roger & Rosenfeld by Alan G. Crowley, Attorney, for Service
Employees International Union, Locai 721; The Zappia Law Firm by Edward P. Zappia and
Brett M. Ehman, Attorneys, for County of Riverside.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County of Riverside (County) to a proposed decision

by a PERB administrative law judge (ALJ) (attached). The ALJ considered unfair practice

charges cross-filed under the Meyers-Milias-Brown Act (MMBA)' by the County against

‘ MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

Service Employees International Union, Local 721 (SEIU)2 and by SEIU against the County.3
The central issue in both charges is the nature and extent of SEIU' s access to the County's
Regional Medical Center (RCRMC). SEIU alleged that the County prohibited SEIU from access
to the union's designated bulletin boards and to non-work areas to confer with employees, and
that the County's prohibitions were imposed unilaterally without notice or an opportunity to
meet and confer. The County alleged that SEIU violated the bulletin board and access provisions
of its Employee Relations Resolution (ERR).
The ALJ determined that both parties committed unfair practices and proposed
appropriate relief. 	Only the County filed exceptions, which SEIU opposed.4 The County's
exceptions address only the ALJ' s conclusions of law, and present for our consideration the same
legal arguments made to and treated appropriately by the ALJ. 5
The Board has reviewed the entire record in this matter. The ALJ' s findings of fact are
supported by the record and unchallenged by either party. We therefore adopt the ALJ's findings
of fact as the findings of the Board itself except as noted expressly below. 6
2 Case No. LA-CO-85-M.
3 Case No. LA-CE-470-M.
4 The County filed a tardy request for oral argument in this matter. SEIU also requested
oral argument. Historically, the Board has denied requests for oral argument when an adequate
record has been prepared, the parties had ample opportunity to present briefs and have availed
themselves of that opportunity, and the issues before the Board are sufficiently clear to make
oral argument unnecessary. ( United Teachers of Los Angeles (Valadez, et al.) (2001) PERB
Decision No. 1453; Monterey County Office of Education (1991) PERB Decision No. 913.)
Based on our review of the record, all of the above criteria are met in this case. Accordingly,
the parties' respective requests for oral argument are denied.
5 In support of its exceptions, the County resubmitted its brief filed with the ALJ.
6 PERB Regulation 32300(c) states "[a]n exception not specifically urged shall be
waived." PERB regulations are codified at California Code of Regulations, title 8,
section 3100 l et seq.
2

We conclude that the ALJ correctly determined violations
of
the MMBA, and adopt the
ALJ's
conclusions
oflaw,
as supplemented by our discussion below.
DISCUSSION
The
ALJ's
Decision and the County's Exceptions
Relying on The Regents
of
the University
of
California, University
of
California at
Los Angeles Medical Center (1983) PERB Decision No. 329-H (UCLA Medical Center), the
ALJ determined that: (1) SEIU' s non-employee agents enjoy a presumptive right
of
access to
non-work areas in the RCRMC (bulletin boards, employee lounges and break rooms) and to
hallways which must be traversed by SEIU's agents to reach these non-work areas, and (2) the
County failed to establish that the presence
of
SEIU agents in the non-work areas and the
hallways disrupted medical services or disturbed patients. Thus, by insisting that SEIU agents
secure prior permission for their access to these areas, the County interfered with employee and
•
SEIU rights. 	Similarly, by imposing the advance permission requirement unilaterally and
without affording SEIU notice and an opportunity to meet and confer, the County unlawfully
changed its access rule.
The County excepts to these conclusions, urging again as it did to the ALJ, that UCLA
Medical Center is inapposite, arising under the Higher Education Employer Employee Relations
Act (HEERA)7, and thus reflects a different legislative policy design for non-employee union
agent access than does the MMBA.
The ALJ detennined that SEIU violated the County's ERR when SEIU's non-employee
agents entered RCRMC work areas for 	purpose
of
speaking with employees and to access
non-union bulletin boards without making advance arrangement as the ERR required, thereby
7 HEERA is codified at Government Code section 3560 et seq.
3

violating MMBA section 3509(b). The ALJ also determined that other alleged misconduct
by
SEIU's non-employee agents (twice attempting unsuccessfully to post union material on
non
union bulletin boards) did not amount to a violation
of
the ERR. The County excepts as
well
to
this latter conclusion.
MMBA Access Standards
The ALJ determined that under MMBA unions enjoy a presumptive right
of
access to
non-work areas subject to reasonable regulation by an employer. 8 We concur.
MMBA contains a specific provision for access
of
employee organization officers and
representatives to employee work locations. (Gov.
Code§
3507(a)(6).) Enacted in 1961 as
section 3507(c)
of
the George Brown Act, and reenacted in 1968 as MMBA section 3507(d), this
provision facilitates employee organization access to the work place as a means
of
promoting the
9
right
of
employee representation established in Section 3502.
We construe MMBA to afford employee organization officers and representatives a
presumptive right
of
access. By so doing we adopt an interpretation consistent with our other
statutes, 10
and in accordance with both MMBA's express access provision and its purpose
of
8 The ALJ relied on cases cited in City
of
Porterville (2007) PERB Decision
No. 1905-M (Porterville) at pp. 7-8. In Porterville, the Board reversed the ALJ's conclusion
that the city had violated the union's MMBA access rights. Thus, while Porterville recites
cases confirming union access rights under Educational Employment Relations Act (EERA),
Ralph C. Dills Act (Dills Act) (previously State Employer-Employee Relations Act or SEERA)
and HEERA, Porterville is not clear precedent holding that the MMBA affords to unions
access rights equivalent to those under EERA, Dills Act and HEERA. Thus, we do not rely
here on Porterville for that proposition. (EERA is codified at Government Code section 3540
et seq. Dills Act is codified at Government Code section 3512 et seq.)
9 Regents
of
the University
of
California, Lawrence Livermore National Laboratory
(1982) PERB Decision No. 212-H (Lawrence Livermore National Laboratory), Proposed
Decision, p. 52; 45 Ops.Cal.Atty.Gen. 74 (1965).
10 State
of
California (California Department
of
Corrections) (1980) PERB Decision
No. 127-S (Corrections); Richmond Unified School District/Simi Valley Unified School
4

improving employer-employee relations by facilitating communication between employees,
through their organization, and their public agency employer. Our prior MMBA access
decisions are in accord.
In Omnitrans (2009) PERB Decision No. 2030-M (Omnitrans), after reviewing access
provisions
ofEERA,
HEERA, the Dills Act and the National Labor Relations Act (NLRA),
11
the
Board stated:
Like the other PERB-administered statutes and the NLRA, the
MMBA prohibits interference with, or discrimination based on, a
public employee's exercise
of
rights under the Act. (Gov. Code,
§ 3506; Cal. Code Regs., tit. 8, § 32603, subd. (a).) Thus, the
above authority weighs strongly in favor
of
recognizing an implied
right
of
access under the MMBA. Additionally, a provision
of
the
MMBA that has no parallel in either the Dills Act or the NLRA
provides further support for recognizing a right
of
access.
Section 3507, subdivision (a),
of
the MMBA provides in relevant
part that:
A public agency may adopt reasonable rules and
regulations after consultation in good faith with
representatives
of
a recognized employee organization or
organizations for the administration
of
employer-employee
relations under this chapter. The rules and regulations may
include provisions for all
of
the following:
(6) Access
of
employee organization officers and representatives
to work locations.
The above language contemplates a right
of
access that is subject
to reasonable regulation much like the statutory access right under
EERA and HEERA. Considering the language
of
the MMBA in
light
of
the well-established implied right
of
access grounded in the
non-interference and non-discrimination provisions
of
other labor
relations statutes, we hold that the MMBA grants a recognized
employee organization a right
of
access to a public agency's
District (1979) PERB Decision No. 99; Long Beach Unified School District (1980) PERB
Decision No. 130; Marin Community College District (1980) PERB Decision No. 145;
Lawrence Livermore National Laboratory.
11
NLRA is codified at 29 U.S.C. section 151 et seq.
5

facilities for the purpose
of
communicating with employees subject
to reasonable regulation by the public agency.
(Omnitrans at p. 16.)
In Omni trans the access rights at issue were those
of
Omnitrans' employees. We then expressly
reserved to future consideration access rights under
MMBA
of
non-employee representatives
of
an
employee organization. (Omnitrans at p. 17, fn. 11.)
Thereafter, in Salinas Valley Memorial Healthcare System (2010) PERB Order
No. Ad-387-M (Salinas Valley), we approved the following portion
of
the board agent's
administrative ruling on election objections:
The
MMBA
grants employee organizations a right
of
access,
subject to reasonable regulation. (Omnitrans (2009) PERB
Decision No. 2030-M.) The
MMBA
provides that public agencies
may adopt reasonable rules and regulations for, among other
things, access
of
organization officers and representatives to work
locations. [Footnote omitted.] Employee organizations are
generally entitled to reasonable access to employees during
employees' non-working time, including before and after work and
during breaks and lunches, subject to advance notice to the
employer and provided that such access does not impede
employees' performance
of
duties. (California Department
of
Transportation (1981) PERB Decision No. 159b-S; Marin
Community College District (1980) PERB Decision No. 145;
Long Beach Unified School District (1980) PERB Decision
No. 130; California Department
of
Corrections (1980) PERB
Decision No. 127-S.)
Access to employee work locations is subject to reasonable
restrictions, particularly in the hospital setting, where
considerations
of
patient care, privacy and security have primacy.
(Regents
of
the University
of
California (2004) PERB Decision
No. 1700-H; UCLA Medical Center (1983) PERB Decision
No. 329-H.)
(Salinas Valley at p. 22.)
Here, we reach the question left unanswered in Omnitrans and addressed indirectly in Salinas
Valley, namely, the MMBA access rights of non-employee agents of a union.
6

The County urges us to read MMBA as the National Labor Relations Board (NLRB) and
the courts read the NLRA, to wit, approving employer restrictions on non-employee access
absent proof by the union that alternative communication channels are insufficient or that the
employer's restrictions discriminate against the union. (NLRB v. Babcock & Wilcox Co. (1956)
351 U.S. 105.) We long ago considered and rejected this regime, noting: (1) absence in the
NLRA of express language regarding union access, and (2) the inherent and substantial
distinction between the property interest of the private employer which drives access policy
under the NLRA and the public nature of facilities operated in the public interest by employers
subject to our statutes. 12
Our statutes contain express reference to access rights and express a common legislative
purpose to promote communications and improve employer-employee relations between public
employers and their employees through recognition of the employees' right to join and be
represented by employee organizations. 13 We therefore have formulated a presumptive right of
access to California's public facilities by union agents, subject to reasonable regulation upon the
employer's showing that a particular regulation is: (1) necessary to the efficient operation of the
employer's business and/or the safety of its employees and others; and (2) narrowly drawn to
avo1'd overbroa d, unnecessary mter1erence	. 	.(:: 	wit. b1 tb1e exercise	. 	o f statutory ngnts.	· ' 	14
We apply this right of access without distinction both to employee and non-employee
union representatives. We conclude that by expressly placing in the MMBA the provision for
Corrections at pp. 6-8; Lawrence Livermore National Laboratory, Proposed Decision
at pp. 53-55; UCLA lvfedical Center at pp. 7-8, Proposed Decision at p. 38.
13 Government Code sections 3500(a), 3512, 3540, 3560(e); Lawrence Livermore
National Laboratory, Proposed Decision at pp. 51-53.
14 Lawrence Livermore National Laboratory at pp. 13-15, Proposed Decision at
pp. 51-53; UCLA Medical Center at pp. 4-6, Proposed Decision at pp. 37-38.
7

organizational access, the Legislature intended to and did assure employees the right to confer
with non-employee organizational representatives at their work locations, subject only to
reasonable regulation. This construction harmonizes MMBA with our other statutes providing
expressly for access by employee organization officers and representatives to employee
work
locations. Had the Legislature intended to rely solely on the implied and limited right
of
access
found by the NLRB in the NLRA, it could have omitted (or removed) any express access
provision from the MMBA. It did not do so.
In sum, we construe the MMBA to afford employee and non-employee representatives
of
employee organizations alike, access to areas in which employees work. This access is subject
to reasonable employer regulation upon the employer's showing that a particular regulation is
both necessary to the efficient operation
of
the employer's business and/or the safety
of
its
employees and others, and narrowly drawn to avoid overbroad, unnecessary interference
with
the
exercise
of
statutory rights.
Application
of
these standards will depend on the circumstances
of
each case. In general,
however, non-employee representatives
of
employee organizations enjoy access to non-work
areas, and may solicit for union membership or activity, or distribute literature to, employees in
such areas on the employees' non-work time. Employer restrictions,
if
any, must be reasonable,
that is, both necessary to the employer's efficient operations and/or safety
of
employees or
others, and narrowly drawn to avoid unnecessary interference. For example, we have found
reasonable an employer's rule requiring that a union representative identify himself upon arrival.
(San Ramon Valley Unified School District (1982) PERB Decision No. 230.) But a rule
requiring a union representative to secure advance permission to meet with employees on their
non-work time in non-work areas was overbroad and unreasonable. (Ibid.)
8

Access in Public Hospitals
We apply these access rules to public hospitals operating under our statutes, but with
adjustments taking into consideration the sensitive work there performed. (Salinas Valley,·
UCLA Medical Center.) A public hospital may limit solicitation and distribution activities by
non-employee organization representatives to the employees' non-working time in non-working
areas, and the employer bears the burden
of
proof that its restrictions on access are reasonable.
A public hospital may limit access by non-employee representatives
of
employee organizations
in immediate patient care areas as necessary to prevent disruption
of
patient care or disturbance
of
patients,
15
and the employee organization bears the burden
of
proof that such restrictions are
unreasonable. (UCLA Medical Center.) Where a hospital uses its public passageways
(walkways, corridors, elevators and the like) both for patient care and for access to non-work
areas or designated organizational access areas such as bulletin boards, the hospital must permit
non-employee representatives to traverse the public passageways in order to access the non-work
areas and other designated access areas, and the employer bears the burden
of
proof that its
restrictions as to these passageways are reasonable. (UCLA Medical Center.) The availability
of
alternative non-work venues (cafeterias, classrooms, and the like) within or near the hospital in
which non-employee representatives
of
organizations may meet employees on their non-work
time, may be considered in assessing the reasonableness
of
the employer's limitations on non
employee access to more traditional non-work venues (break rooms, locker rooms and the like).
Disturbance of patients includes but is not limited to disclosure of patient medical
information beyond that incidental disclosure countenanced under the Health Insurance
Portability and Accountability Act of 1996 (HIPAA). The record below and ALJ's decision
reflect an appropriate balance between medical information confidentiality and access by non
employee agents of SEIU. (ALJ's Proposed Decision at pp. 18, 26.)
9

The employer bears the burden
of
proof that such alternative venues are a reasonable substitute
for more traditional venues. (UCLA Medical Center.)
We turn now to the particular issues in this case. 	Since SEIU filed no exceptions,
we
limit our discussion to the County's exceptions to the ALJ's decision, and only the particular
access ordered by the ALJ is at issue herein. (UCLA Medical Center.)
Access to Designated Organizational Bulletin Boards.
The ALJ determined that the County prevented SEIU's non-employee agents from
traversing some work areas and some patient care areas in order to post and update SEIU
materials on union bulletin boards designated for SEIU use under the County's ERR. In so
doing, the County acted contrary to the County's MOU with SEIU,
16
in violation
of
SEIU's
MMBA access rights, and without reasonable justification for this access restriction. It thereby
enforced its ERR section
18
bulletin board provisions in contradiction
of
MMBA section 3 5 07,
and by the same conduct violated Sections 3506 and 3503, and committed unfair practices under
Section 3509(b). The County excepts to these conclusions.
We concur with the ALJ. To post and update (i.e., "maintain") materials on the
organizational bulletin boards designated in the County's ERR, non-employee agents
of
SEIU
were obliged to traverse public passageways used by the hospital both for patient care and for
The "maintenance in a timely fashion"
of
organizational bulletin board postings was
a duty imposed on SEIU under section 1
of
SEIU's memorandum
of
understanding (MOU)
with the County, as well as by a memorandum
of
agreement between the County and SEIU.
Access to the bulletin boards was thus necessary in order for SEIU to meet its contractual
undertakings. 	We note that in discussion
of
this violation at page 22
of
the proposed decision
the ALJ referred to MMBA section 3507(a) and our decision in UCLA Medical Center as
though we were construing MMBA in that decision. However, UCLA Medical Center arose
and was decided under HEERA. Nonetheless, this apparent mistake is of little moment, since
we construe both statutes to afford the same access rights to non-employee representatives of
employee organizations.
10

access to employee work and non-work areas. The County excluded SEIU's non-employee
agents altogether from such passageways.
17
The ALJ ruled that in
so
doing the County
improperly denied SEIU access to SEIU's designated bulletin boards.
We conclude, with the ALJ, that a public hospital may establish reasonable restrictions
limiting access by the public, including non-employee representatives
of
employee
organizations, to immediate patient care areas. However, it may not deny non-employee
representatives
of
employee organizations access to designated organizational bulletin boards.
Such representatives may traverse passageways also used for patient care
if
necessary to access
organizational bulletin boards and to access non-work areas to confer with employees. The
employer may prohibit employees from conferring in such passageways with non-employee
representatives
of
employee organizations, and may prohibit non-employee representatives from
lingering or stationing themselves in passageways also used for patient care to the extent such
activity would disrupt patient care or disturb patients.
18
And,
if
an employer permits the public
access to such passageways, it may not deny access to non-employee representatives
of
employee organizations. (UCLA Medical Center.)
7 We note that the ALJ determined not to consider the content
of
complaints reportedly
made to Human Resources Manager Berninia Bradley (Bradley) by several members
of
her
staff regarding conduct
of
SEIU agents. 	Bradley herself received these complaints by phone
and was not a percipient witness to the reported conduct. The County did not present
percipient witness testimony about the conduct of the SEIU agents in these several instances.
The ALJ determined Bradley's testimony as to these particular events was hearsay, offered for
the truth of the matter, i.e., the conduct
of
the SEIU agents. The testimony is not hearsay
if
offered only to establish that the supervisors did in fact call Bradley, what she heard them say,
and her state of mind upon hearing their reports. Regardless, testimony of the percipient
supervisors making the telephonic reports to Bradley would have been more persuasive
testimony. 	The ALJ reasonably deemed the record evidence insufficient to make a finding
about the alleged conduct of the SEIU agents.
18
See footnote 15 infra.
11

Advance Arrangements
The ALJ determined that the County ejected SEIU representatives from non-work
locations, allegedly for failing to arrange in advance for access.
19
In so doing, the County acted
contrary to its ERR and its MOU with SEIU, in violation
of
SEIU's MMBA access rights, and
without reasonable justification for this access restriction. In so doing, the County enforced its
ERR
section 20 in contradiction to MMBA section 3507, and by the same conduct violated
Sections 3506 and 3503, and committed unfair practices under Section 3509(b). The County
excepts to these conclusions.
The County's ERR
section 20, provided for employee organization access to employees
in employee work areas on the condition that the employee organization made advance
arrangements. On its face, this rule is reasonable. The County, however, deemed the entire
hospital a work area, and on that basis demanded advance arrangement for non-employee
representatives
of
SEIU to access any area, including traditional non-work areas such as
employee break rooms, locker rooms and the grounds adjacent to employee entrances to hospital
buildings. We conclude, with the ALJ, that the County may not reasonably characterize the
entire hospital as a work area. We conclude, with the ALJ, that break rooms, locker rooms and
adjacent grounds were non-work areas, and that ejection
of
non-employee representatives
of
SEIU from these traditional non-work areas for failure to make advance arrangement was not
justified by ERR section 20, or by legitimate concerns for the hospital's operation. Such ejection
In her testimony, the County's human resources manager stated that she advised
supervisors calling her to report presence
of
SEIU non-employee agents to send the SEIU
agents to the cafeteria
if
they were being disruptive, leaving it up to the discretion
of each
supervisor to decide whether work was being disrupted and thus whether to demand that the
SEIU agent proceed to the cafeteria. The ALJ' s summary of Bradley's testimony at page 10 of
the proposed decision omitted the underscored language. We conclude this omission, while
meriting mention, does not detract from the ALJ' s findings.
12

amounted to unnecessary and overbroad construction of the ERR and improperly denied SEIU
non-employee agents access to non-work areas.
The ALJ also determined that in four instances, non-employee agents of SEIU did access
work locations20 without making the required advance arrangement, thereby violating the
County's advance arrangement access rule, and that such violation constituted an unfair labor
practice. 	SEIU did not except to this conclusion.
We conclude, with the ALJ, that a public hospital's rule limiting access by non-employee
representatives of employee organizations must be reasonable, narrowly drawn, and consistently
enforced. 21 Although the County failed to establish that application of its advance arrangement
rule to the entire hospital was reasonable and narrowly drawn, it did establish that as to work
areas, the rule was reasonable. 	SEIU failed to demonstrate that application of the advance notice
rule to the work areas unreasonably interfered with access of its non-employee agents to
employees on their non-work time in non-work areas.
Unilateral Change in Access Policy
The ALJ determined that: (1) without meeting and conferring with SEID, the County
imposed the access restrictions described above; (2) the restrictions changed unilaterally the
policies stated in ERR sections 18 and 20; and (3) the changes have had a generalized effect and
continuing impact limiting unit employee access to SEIU representatives and information in
SEIU flyers. 	Thus, determined the ALJ, the County violated MMBA section 3505. The County
excepts to these conclusions.
20 Proposed Decision at p. 26.
21 We stress consistency since it appears here that the County, hospital staff and SEIU's
non-employee representatives differed markedly in their expectations about access.
13

We concur with the ALJ. We note that West Side Healthcare District (2010) PERB
Decision No. 2144-M, articulates a more recent formulation of our test for unilateral change than
do the decisions cited and relied on by the ALJ. Relying on our more recent decision, we concur
with the ALJ's conclusion that the County unilaterally changed policies stated in ERR
sections 18 and 20, and that these changes violated MMBA section 3505.
SEIU's Posting Flyers on Non-Union Bulletin Boards
The ALJ determined that in accessing the non-union bulletin boards in employee work
areas without advance arrangement, SEIU non-employee agents did violate the advance notice
access rule in ERR section 20. SEIU did not except to this conclusion.
The ALJ also determined that SEIU did not intentionally misuse its ERR and MOU
bulletin board rights when its non-employee representatives twice mistakenly posted SEIU flyers
on non-union bulletin boards. In each case, the SEIU material was quickly removed and the
SEIU representatives escorted to the appropriate SEIU bulletin boards. The County excepts to
this conclusion.
We conclude, with the ALJ, that by entering an employee work area twice without
advance arrangement and posting material on bulletin boards not designated for SEIU materials,
SEIU non-employee agents did transgress the hospital's advance arrangement rule. However,
since the SEIU materials posted inappropriately promptly were removed and hospital staff
promptly re-directed the SEIU agents to appropriate union bulletin boards, we conclude, with the
ALJ, that the two bulletin board posting incidents were themselves inadvertent and de minimis,
and did not amount to a MMBA violation.
To summarize, except as expressly noted herein, we affirm the ALJ's findings of fact and
conclusions of law.
14

ORDER
Based on the findings of fact and conclusions of law and the entire record in this matter,
the Public Employment Relations Board (PERB or Board) finds in Case No. LA-CE-470-M that
the County of Riverside (County) violated the Meyers-Milias-Brown Act (MMBA), Government
Code section 3500 et seq. The County violated MMBA section 3507 by enforcing its
Employment Relations Resolution (ERR) to prohibit access by representatives of Service
Employees International Union, Local 721 (SEIU) to its designated bulletin boards at the
Riverside County Regional Medical Center (RCRMC) and to RCRMC employees on non-work
time in non-work areas. The County also violated MMBA section 3505 by unilaterally changing
the policies set forth in ERR without giving SEIU prior notice or opportunity to bargain. By the
same conduct, the County also interfered with the rights of employees in violation of MMBA
section 3 506 and deprived SEIU of its right to represent employees in violation of Section 3 503.
By all of this conduct, the County committed unfair practices under MMBA section 3509(b).
Pursuant to MMBA section 3509(b), it hereby is ORDERED that the County, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Prohibiting SEIU access to its designated bulletin boards;
2. 	Prohibiting SEIU access to non-work areas for the purpose of speaking
with small numbers of employees on non-work time;
3. 	Making unilateral changes in union access policies without providing
SEIU with prior notice or opportunity to bargain regarding such changes.
15

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF MMBA:
1.	
Allow SEIU access to its designated bulletin boards, notwithstanding that
such access may involve traversing hallways, work areas, and patient care areas;
2.	
Allow SEIU access to non-work areas to speak with small numbers
of
employees on non-work time without requiring advance arrangement;
3.	
Provide SEIU with notice and opportunity to bargain prior to making any
changes in access policies;
4.	
Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees
of
RCRMC customarily are posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the County, indicating that it will comply with the terms
of
this Order. Such posting shall be
maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be taken to
ensure that the Notice is not reduced in size, altered, defaced or covered with any other materiai;
5.	
Written notification
of
the actions taken to comply with this Order shall be
made to the General Counsel
of
PERB, or the General Counsel's designee. The County shall
provide reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on SEIU.
The Board also finds 	Case No. LA-CO-85-M that SEIU violated ERR section 20 by
allowing its agents to access RCRMC work areas for the purpose
of
speaking with employees
without making advance arrangement, in violation of MMBA section 3509(b).
Pursuant to MMBA section 3509(b) of the Government Code, it is hereby ORDERED
that SEIU, its governing board and its representatives shall:
16

A. 	CEASE AND DESIST FROM:
1.
Allowing its agents to access RCRMC work areas for the purpose
of
speaking
with employees without making advance arrangements with the County as required by
ERR
section 20.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF MMBA:
1.	
Conform to the advance arrangements required by ERR section 20 prior to
sending any agent to speak with employees in work areas
of
the RCRMC.
2. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to employees
of
the RCRMC customarily are posted,
copies
of
the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent
of
the County, indicating that it will comply with the terms
of
this Order. 	Such
posting shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with
any other material;
3. 	Written notification
of
the actions taken to comply with this Order shall be
made to the General Counsel
of
PERB, or the General Counsel's designee. SEIU shall provide
reports, in writing, as directed by the General Counsel or his/her designee. All reports regarding
compliance with this Order shall be concurrently served on the County.
Members McKeag and Dowdin Cavillo joined in this Decision.
17

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-470-M, Service Employees
International Union, Local
721
v.
County
of
Riverside, in which all parties had the right to
participate, it has been found that the County
of
Riverside violated the Meyers-Milias-Brown
Act (MMBA), Government Code section 3500 et seq. by enforcing local rules regarding union
access in contradiction to the MMBA and by unilaterally changing its union access policies
without providing Service Employees International Union, Local
721
(SEIU) prior notice or
opportunity to bargain.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A.	
CEASE AND DESIST FROM:
1.	
Prohibiting SEIU access to its designated bulletin boards;
2.	
Prohibiting SEIU access to non-work areas for the purpose
of
speaking
with small numbers
of
employees on non-work time;
3.	
Making unilateral changes in union access policies without providing
SEIU with prior notice or opportunity to bargain regarding such changes.
B.	
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF MMBA:
1.	
Allow SEIU access to its designated bulletin boards, notwithstanding
that such access may involve traversing hallways, work areas, and patient care areas;
2.	
Allow SEIU access to non-work areas to speak with small numbers
of
employees on non-work time without requiring advance arrangement;
3.	
Provide SEIU with notice and opportunity to bargain prior to making any
changes in our access policies.
Dated: 	COUNTY OF RIVERSIDE
By:
---------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CO-85-M, County of Riverside v.
Service Employees International Union, Local 721, in which all parties had the right to
participate, it has been found that Service Employees International Union, Local 721 (SEIU)
violated the Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq. by
allowing its agents to access work areas of the Riverside County Regional Medical Center
(RCRMC) without making advance arrangements with the County of Riverside (County), as
required by Employee Relations Resolution (ERR) section 20.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Allowing SEIU agents to access RCRMC work areas for the
purpose of speaking with employees without making advance arrangements with the County as
required by ERR section 20.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF MMBA:
1. 	Conform to the advance arrangements required by ERR
section 20 prior to sending any agent to speak with employees in work areas of the RCRMC.
Dated: --------- SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 721
By: --------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SEIU LOCAL 721,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
COUNTY OF RIVERSIDE,
Charging Party,
V.
SEIU LOCAL 721,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-470-M
PROPOSED DECISION
(August 3, 2009)
UNFAIR PRACTICE
CASE NO. LA-CO-85-M
Appearances: Weinberg, Roger & Rosenfeld by Alan
G.
Crowley, Attorney, for SEIU Local
721; The Zappia Law Firm by Edward P. Zappia, Attorney, for County
of
Riverside.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
On July 14, 2008, SEIU Local 721 (SEIU) filed an unfair practice charge against the
County
of
Riverside (County) in Case No. LA-CE-470-M, claiming that the County unlawfully
applied its Employee Relations Resolution (ERR) to prohibit SEIU from access to areas at its
Riverside County Regional Medical Center (RCRMC) where SEIU bulletin boards (BBs) are
located, and from access to non-work areas
of
the RCRMC. 	SEIU also alleged that the County
unilaterally changed its policies on access to BBs and to non-patient-care areas during non
working time, without giving SEIU prior notice or opportunity to bargain. On September 25,
2008, the office of General Counsel of the Public Employment Relations Board (PERB or

Board) issued a complaint alleging that by this conduct, the County violated the Meyers
Milias-Brown Act (MMBA or Act) sections 3505 and 3507, and by the same conduct violated
sections 3503 and 3506, thereby committing unfair practices under section 3509(b). 1 In its
answer to the complaint, the County denied all wrongdoing and claimed, as affirmative
defenses, that the Union sought unlawful access and violated lawful patient care policies.
On September 9, 2008, the County filed an unfair practice charge against SEIU in Case
No. LA-CO-85-M, claiming that SEID violated the BB and access rules of the ERR. 	On
September 26, 2008, the office of General Counsel of PERB issued a complaint alleging that
by this conduct, SEID committed an unfair practice under section 3509(b ). 	In its answer to the
complaint, SEIU denied all wrongdoing and claimed, as affirmative defenses, that the ERR is
unlawful and that the County unlawfully applied it.
An informal settlement conference was held on October 30, 2008, in the Los Angeles
office of PERB, but the matter was not resolved. Formal hearing was held before the
1 The MMBA is codified at Government Code section 3500 et seq. 	Section 3505
requires that "[t]he governing body of a public agency ... meet and confer in good faith
regarding wages, hours, and other terms and conditions of employment with representatives of
such recognized employee organizations .... "
Section 3507(a) provides that "[a] public agency may adopt reasonable rules and
regulations after consultation in good faith with representatives of a recognized employee
organization ... for the administration of employer-employee relations under this chapter,"
including provisions for "(6) Access of employee organization officers and representatives to
work locations," and "(7) Use of official bulletin boards and other means of communication by
employee organizations."
Section 3503 guarantees to employee organizations the right to represent their members
in their employment relations with public agencies.
Section 3506 states that "[P]ublic agencies ... shall not interfere with, intimidate,
restrain, coerce or discriminate against public employees because of their exercise of their
rights .... "
And section 3509(b) makes a violation of any of the above sections, as well as a
violation of any lawful employer rule or regulation, an unfair practice.
2

undersigned on these consolidated cases on April 7, 8, and 9, 2009. After the submission of
post-hearing briefs, the matter was submitted for decision on July 9, 2009.
FINDINGS OF FACT
The County is a public agency within the meaning of MMBA section 350l(c). The
RCRMC is a public hospital and medical center occupying a five-story building in El Monte,
California, operated by the County. SEIU is a recognized employee organization within the
meaning of MMBA section 350l(b). It represents over 6,000 employees of the County in four
bargaining units, one of which is Registered Nurses (RNs) working at RCRMC.
I. 	Governing documents
Three documents, in effect at all material times, provide the framework for the issues
herein. (1) The County's ERR, adopted in consultation with SEIU:
Section 18. USE OF BULLETIN BOARDS. Space may be
made available to registered employee organizations on
department bulletin boards within the representation unit
provided such use is reasonable and does not interfere with the
needs of the department. Notices shall be dated and signed by the
employee organization or its representative responsible for their
issuance. The privilege does not extend to individual members of
an organization.
Section 19. USE OF MEETING PLACES. Employee
organizations shall be granted the use of County facilities for
meetings composed of County employees, provided such
meetings are held outside regularly scheduled working hours for
the group which is meeting and provided space can be made
available without interfering with County needs. Employee
organizations desiring to use County facilities for such meetings
shall obtain the permission of the appropriate County officials
before using such facilities. Meeting places shall be left in an
orderly manner upon completion of the meeting.
Section 20. ACCESS TO WORK AREA. Representatives of
qualified employee organizations may be allowed access to work
locations when necessary to represent an employee on a
grievance or to communicate briefly with an employee on matters
within the scope of representation, provided that advance
3

arrangement including disclosure of the purpose is made with the
department head or supervisor in charge of the work area, and
that the visit does not unreasonably interfere with County
business nor use an excessive amount of time.
(2) The parties' Memorandum of Understanding (MOU), Article XXXI, Union Rights:
Section 1. Bulletin Boards: Space will be made available to
SEIU on a reasonable number of departmental bulletin boards
designated for such purpose, provided such use is reasonable.
Notices shall be dated and signed by a SEIU representative. The
privilege does not extend to the individual members of SEIU.
The posting and removal of bulletin board material must be
maintained in a timely fashion. 	The County, through the Human
Resources Director, or designee, reserves the right to suspend or
cancel bulletin board privileges for abuse.
Section 4. 	Worksite Access: The Union will maintain its
existing right to enforce their rights to worksite access.
The Union shall also be provided, upon request, a meeting room
at all work locations, to conduct meetings with represented
employees before and after work and during lunch periods (non
working time). 	Where facilities like RCRMC exist and make
impracticable the ability of employees on other floors to be able
to attend a meeting due to limited lunch breaks, the County
agrees to make every effort to provide additional meeting rooms
to address this issue. All meetings will be scheduled through
Human Resources, and, at the time the request is made the
request will be granted, provided that the meeting room requested
has not been previously scheduled.
(3) A memorandum dated October 5, 2005, from RCRMC management to the nursing
department. 	This memorandum was the result of a "walk-thru" the RCRMC conducted by
Human Resources Director Tom Prescott (Prescott), accompanied by SEIU Shop Steward
Marward Sullivan-Taylor (Sullivan-Taylor) and SEIU Executive Director Rebecca Miller, to
locate and identify the BBs:
After much discussion, the SEIU/RCRMC Labor Management
Meeting reached agreement on the following placement of SEIU
bulletin boards:
4

• 	Outside the cafeteria
• 	Between the staff elevators on each floor
• 	In the following locker rooms
o 	Emergency Department 	F1052
o 	PCU 	C2088
o 	Operating Room 	F2041, F2038,
F0113 and
F0l
15
o 	ACCU 	D2021
o 	NICU/L&D 	F3052
o 	3A 	A3088
o 	3C 	C3088
o 	OB/NB 	E3017
o 	4C 	C4088
[2]
• 	In the break rooms
of
the following areas
o 	Clinical Lab
o 	Diagnostic Imaging
o 	Respiratory Care
o 	Pharmacy
o 	IT
o 	Clinics
o 	Physical and Occupational Therapy/Rehabilitative
Services
Bulletin boards shall not be used for personal reasons. Notices
shall be dated and signed by a SEIU Local 1997 [Local 721
's
predecessor] representative. The County reserves the right to
suspend or cancel bulletin board privileges for qualifying abuse,
inclusive
of
profanity, inappropriate pictures, personal comments
or lewd remarks. 	Memos, letters or fliers that contain a strong
communication against the County or management are not
considered a qualifying abuse for which privileges may be
suspended.3
2 The various units are designated as follows: 	PCU - Progressive Care Unit; ACCU -
Adult Critical Care Unit; NICU - Neonatal Intensive Care Unit; L&D - Labor & Delivery; 3A,
3C, 4C - General Surgery; OB/NB - Obstetrics.
3 The County also maintains locked BBs near the staff elevator banks on each floor,
where employees could post notices of parties, showers, etc. SEIU also used these BBs from
time to time to post general meeting announcements; agents were able to obtain keys from
management, and when the keylocks were changed to keypads, they were given the security
codes.
5

II. 	RCRMC Layout
A description of the hospital layout is necessary for an understanding of the issues.
Lower level/Fourth floor
The lower level houses the Clinical Laboratory, Mail Services, Transportation, Plant
Operations, Environmental Services, Information Services, and Materials Management.
Although BBs are located here, patients are not treated on this level, and it is not in contention.
Nor is the fourth floor, which contains the psychiatric "lock-down" unit.
First floor
The main public entrance to the hospital is located at the south end of this floor. 	To the
immediate right is the Infusion Center, bordered by a public walkway. To the north of the
public entrance is a Medical Mall, beyond which are medical offices, Physical Therapy,
Occupational Therapy, Diagnostic Services, and the pharmacy; this entire area is bordered by a
public walkway. To the north of this area is the cafeteria. To the east of the main entrance are
the Emergency Room (ER) and Diagnostic Imaging, bordered together by a public walkway.
Second floor
This floor houses the Progressive Care Unit (PCU), Adult Critical Care Unit, Same-Day
Surgery, Respiratory Therapy, Operating Room (OR), Family Medical Department, and
Administration. Each of these units, except for the OR, is bordered by a public walkway. To
reach the PCU, you must use a buzzer to open the door, which is done by visiting families as
well as SEIU.
Third floor
This floor contains the Surgical Acute Unit, Pediatrics Critical Care Unit, Surgical
Specialties and Obstetric Acute Unit. Each of these units is bordered by a public walkway.
6

Dr. Arnold Tabuenca (Dr. Tabuenca), a County physician/surgeon, testified to the
various hospital areas. He explained that RCRMC is a "trauma center," i.e., when there
are
serious injuries due to, e.g., a traffic accident, emergency vehicles will take patients to
RCRMC rather than to a hospital which may be closer but not equipped or trained for
trauma
treatment. 	There is no special access required to go through the public entrance to the ER.
However, the ER sees over 90,000 patients per year, and therefore must use the hallways
where, on a triage basis, the least critical patients often sit and wait for treatment. Trauma
carts, blood pressure monitors, x-ray machines and other instruments are often in this hallway
area. 	Beyond the public hallway is an inside door leading to treatment rooms. In this
treatment-rooms area, physicians and RNs walk in and out
of
the rooms to get medications
from the nurses' station and to go from one patient to another, and technicians are moving
equipment from room to room. 	Families can be in this area for a short time, or they can wait in
the patient's room, the outer waiting room, or near the elevators.
Dr. Tabuenca testified that the Medical Mall is open to the public. 	Other areas,
including the ACCU, OR, Pediatrics, and Labor & Delivery, have locked doors which require
key cards or intercom permission to access. As to hospital hallways, Dr. Tabuenca explained
that visitors, custodial workers, and food service employees, inter alia, use the hallways, as do
medical staff on break. 	But even while on duty, an RN could give someone a brief greeting in
a hallway, tell them where the restrooms are located, etc. He explained that the union must
traverse the hallways, including those adjacent to patient rooms, to get to the break rooms or
locker rooms where its BBs are located, and they would not disrupt patient care or on-duty
staff
if
they did not engage them in conversation. He also acknowledged that there is no
patient care in the break rooms or locker rooms, and that the union would not disturbstaff or
patient care by posting flyers there, although he opined that it would be better
if the union
7

notified the nurses' station in advance of its visits. Further, according to Kim Baumgarten
(Baumgarten), assistant director of nursing, HIP AA, 4 which protects against the disclosure of
confidential patient information, contains an exception to patient information casually
overheard in public-access hallways.
III. 	Access and bulletin boards
Historically, SEIU agents had easy access to the designated BBs in employee break
rooms and locker rooms located throughout the RCRMC, as well as to the staff BBs near the
elevator banks, and could briefly speak with off-duty unit members without giving the hospital
advance notice. To reach many of the BBs, agents must traverse walkways also used by
visitors, patients, patients' families, medical providers, and other hospital employees.
Shop Steward Sullivan-Taylor testified without contradiction that between October
2005 and her retirement in October 2007, she frequently posted current materials on the BBs.
In doing this, she often spoke briefly with unit employees during break times in break rooms or
locker rooms about the flyers or about their workplace concerns, and was never asked to leave.
She was joined in these activities by SEIU Representatives Tanya Arnaiz (Arnaiz), Judy
Hermasillo, and later Gregorio Daniels (Daniels), whom she introduced to the charge nurses
and nurse managers of the various departments, and all of whom she claimed also had easy
access. 	After her retirement from the County, she continued these activities in the employ of
SEIU.
Daniels also testified. He has been with SEIU since January 2006 and was assigned to
RCRMC from March until September 2008. He worked there with Arnaiz and Sullivan
Taylor, distributing SEIU literature in the break rooms and locker rooms, which usually took
4 Health Insurance Portability and Accountability Act of 1996.
8

him about two hours per visit. He might also have brief conversations with off-duty unit
members during these walk-throughs, but if someone wanted to have a longer conversation, he
would arrange to meet in the cafeteria. If he wanted to hold a formal membership meeting, he
would make arrangements with the County's Human Resources Department. Daniels testified
that in the first few months had no access problems.
Gualdalupe Palma, SEIU' s assistant director for internal organizing, testified that in
early 2007, SEIU changed its organizing methods, from having its business agents just wait for
members to call when they had a problem at work, to actively visiting the jobsites to talk with
unit employees, "get to know them more, get to understand what their issues are and how they
would like to see their union not only represent them but ... for the union to truly be their
organization." The ultimate goal was to have unit members run their own meetings and
resolve some of their own problems, as well as to organize new members.
In early 2007 SEIU embarked on an organizing campaign to represent the County's
several thousand temporary workers (TAP) employed at various County locations including
the RCRMC. The campaign culminated in SEIU' s request for card-check recognition in
March 2008, which the County denied. Various litigation actions were initiated by both
parties, including an unfair practice charge filed by SEIU in Case No. LA-CE-413-M, which is
currently pending. 	In the spring of 2008,5 SEIU began another organizing campaign to
represent the County's per diem workers employed at various County locations, including the
RCR_MC.6 Around that time SEIU was also trying to fend off an effort by California Nurses'
Association (CNA) to represent its registered nurses (RNs). For those purposes, SEIU sent
5 All dates refer to the year 2008 unless otherwise specified.
6 Case No. LA-CE-497-M, regarding the County's denial of SEIU's per diem petition,
is also pending.
9

into the RCRMC more than its usual complement
of agents-some
like Sullivan-Taylor,
Arnaiz, and Daniels to interface with the already-represented unit employees, and some to
gather support among the temporary and per diem employees. 	There is no dispute that SEIU
did not call ahead to notify the County or seek permission to visit the RCRMC.7
County evidence
Human Resources Manager Berninia Bradley (Bradley) testified that in April/May she
began receiving several complaints, from employees and supervisors in all hospital
departments, that SEIU agents were talking to staff while they were working; Bradley
herself
did not witness any such incident Bradley would tell the caller to send the SEIU agents to the
cafeteria;
if
a supervisor called often, she left it up to the supervisor's discretion to determine
whether work was being disrupted and to take appropriate action. 	She did not issue a written
directive.
County witnesses testified to the following incidents: Kim Baumgarten, assistant
director
of
nursing for the past six months and before that, nurse manager in ER, testified to
three incidents in the relevant time period: (1) Employees told her that an SEIU representative
was disturbing ER staff by talking to them during work time. 	She went to find out for herself,
and saw an unidentified man standing in the outer hallway near the break room; he did not
have any flyers with him. 	She passed him several times over a one-hour period, at first
thinking he was with a patient but then realizing he was with SEIU.8 She did not see him
speak with any employee, but relying on employee reports, she told him to leave. He said he
had a right to be there. 	She then escorted him to Administration, and does not know where he
7 SEIU did, however, submit written requests several weeks in advance to hold general
membership meetings at County facilities, including the RCRMC.
8 By description, this was SEIU organizer Ramon Martinez.

went after that. 	Baumgarten contended that the hallway is a patient care area because patients
are sometimes holding there, giving personal information to staff. (2) One evening as she was
exiting the employee door (near the ambulance/helipad entrance) she saw SEIU agents talking
to employees going in and out. 	She told the agents it was not the place to talk to employees, as
they were working. 	However, she also explained that work begins and ends when one nurse
"hands off'' her assignment to another nurse; this obviously occurs inside the building. 	(3) On
one occasion she saw an SEIU agent covering some staff announcements posted on the
staff
Educational BB in the ER break room, by tacking union posters over them. 	This is not a
designated union BB. 	Baumgarten told the agent to take the posters down, then escorted her to
the locker room where the SEIU BB was located.
Louise O'Rourke (O'Rourke), nurse manager, testified to three incidents during the
relevant time period: (1) In the pre-op holding room
of
the OR area she saw an SEIU agent,
among several other people. She did not describe what he was doing. 	She told him to go to
the cafeteria; he argued with her, and she then escorted him to the elevator. She claims that
area is open to patients, physicians, RNs, family members, police officers and prisoners, that
patients may be giving confidential medical information to medical staff, and may be in
various states
of
undress. 	She did not say that any patients were in the area at that time. 	(2)
On one occasion she saw two SEIU agents in Same-Day Surgery, standing 5-10 feet from the
door to the break room trying to speak with RNs. 	She did not say whether the RNs were on
duty, were providing patient care, or were even talking to the SEIU agents. 	She told the agents
to go to the cafeteria; they argued, but left the area. 	She described two doors to this area, one
where patients enter with their families, and another where patients are wheeled out for
surgery; the break room is between these two doors. 	There are also dressing rooms in this area
where patients undress for surgery; she did not say whether any patients were in the area at that
11

time. 	(3) On one occasion she saw Daniels in the GI Lab area talking to RNs near the staff
elevator. 	She told him to leave; at first he refused, then he left. 	She claimed patients give
confidential medical information in the GI Lab area and are in various states of undress, but
did not claim that this was done in the close vicinity of the staff elevators, nor did she say
whether any patients were in that area at the time. Daniels also testified to this incident; he
claimed that in July/ August he was talking with only one off-duty RN who hadjust come off
the elevator, when O'Rourke told him to leave. 	O'Rourke testified that for the pasttwo years,
whenever she sees an SEIU representative in the hospital, she tells them they are only allowed
in the cafeteria. She claimed that everywhere else is a patient care area.
Rick Tomlin (Tomlin) is a Radiology supervisor. He testified to the following: 	(1)
During the TAP campaign, an SEIU agent came to the window at the public registration area
of Radiology, asking to speak with certain named TAP employees. 	Only one was on duty at
that time, and he was working. 	Tomlin went to the window and told the agent, per instructions
from his manager, that SEIU could meet only in the cafeteria, or in the break room bypre
arrangement. (2) In September/October he saw Sullivan-Taylor, in what "appeared to be
scrubs," sitting and talking to on-duty staff in the hallway near Radiology. He asked what she
was doing there; she replied that she was delivering a shirt which an employee won in a union
raffle. 	He said she needed permission to enter the area; she apologized and left.
Sullivan-Taylor also testified: 	She was not wearing scrubs, but was holding a scrub
top, which is what the employee won in the raffle. 	She had first phoned to tell the employee
she had his shirt, but he was on duty, so she decided to go to Radiology to deliver it to him.
When she got there, other employees said they would like to have a shirt like that, so she
engaged in a brief conversation with them. 	She said she has never worn scrubs to the hospital
since her last day of County employment, August 18, 2007. (3) Approximately two-to-three
12

months ago, Tomlin saw Sullivan-Taylor in the Radiology "control area," again in scrubs. 	He
did not say what she was doing there, how long she was there, or whether he spoke to her.
Tomlin testified that to reach Radiology, one must go through a public door, then a
staff
door;
patient charts and x-rays are in this area.
Letishia Jackson, nurse manager
of
PCU, testified that in approximately March 2009
she saw several SEIU flyers scattered all over the table and some on the staff BB in the
PCU
break room. 	She gathered them up. 	An SEIU agent who had been in the break room returned
and said SEIU had a right to post the flyers. 	Jackson said the flyers could not be in
that
location, but she would assist in taking them to the locker room where the union BB
was
located. The agent said the door to the locker room was locked, so Jackson assisted
her by
unlocking it. Abbie Blumberg (Blumberg), an SEIU representative assigned to work
with
SEIU Local 721 during the relevant time, was the agent involved; her testimony was
essentially the same as Jackson's. Jackson said she regularly takes SEIU flyers, which she
claims are distributed all over the nurse's station, to the locker room. Jackson contends that
the union should not talk to employees in the break room because, even though they areon
break, they might not want to talk to the union, and because it might delay them from returning
to their shift.
Michele Balisi (Balisi), a human resources analyst, testified that in August she saw
SEIU flyers affixed to hospital walls. 	She does not know how they got there, and did not
conduct an investigation.
Ken Beckerle (Beckerle) is manager
of
Ambulatory Care, responsible for all hospital
clinics including the Infusion Center, which treats patients for oncology, hydration, blood
transfusions and other infusion procedures. To reach the Center, one must go through two
doors, the first opening into an interior waiting room, and the second to the patient care area.
13

He contends that the waiting room contains "sensitive" material including lab reports, patient
referrals, and other confidential information. He testified that he saw four people in the
waiting room at the Center, three RNs and one SEIU agent. Two RNs were working and the
third was talking with the SEIU agent. Beckerle did not say whether the third RN was on duty
or whether there were any patients in the area. He asked the agent and the RN to leave and go
to the break room or the cafeteria; the SEIU agent said it was not a patient care area, but they
did leave. Beckerle went to his office and viewed a prior email from the chief nursing officer
which stated that the cafeteria was the "authorized" place for the union to meet with
employees. He then he told his nurse manager to quickly find the two and tell them they could
only go to the cafeteria. Blumberg was the SEIU representative involved. She testified that an
RN had pulled her into a "small office" at the Infusion Center and asked her to stay for the
staff meeting about to commence. The clinic manager came in and told her to leave, which she
did.
The County argues that all areas within the hospital walls, as well as the outside
ambulance/helipad area, where hospital staff enter and exit, are patient care and work areas, as
patients may be passing through hallways, lobbies, and waiting rooms, going in and out
of
elevators, and entering the emergency room while medical staff may be treating them,
obtaining confidential information from them, or talking to them. Nevertheless, the County
claims that 	SEIU had provided advance notice, it would have been accommodated.
SEIU evidence
SEIU representatives testified to several additional instances when they were ejected
from their intended areas and directed to the cafeteria, and that the doors to areas which they
formerly walked through without incident became locked and "staff only" signs were posted
thereon.
14

Sullivan-Taylor testified as follows: 9 (1) In late June she was headed for the BB in the
locker room of the PCU, when she was stopped by a nurse supervisor who said she had orders
that Sullivan-Taylor could not be on the floor. 	Sullivan-Taylor then recalled that therewere
staff announcements on the union BB, and she told the charge nurse to get them off and she
would return later. When she returned, she found the door to the PCU locked and a "staff
only" sign posted thereon. (2) In early July she was outside the hospital handing employees
flyers announcing a general membership meeting. Jackson approached and told her she could
not be there, but Sullivan-Taylor insisted that she was on public property and continued her
activity. She testified that three unit employees at first held out their hands for a flyer, but
upon seeing Jackson, withdrew their hands and said, "No thank you." (3) In
August/September she was visiting a sick friend in PCU. When she walked out of his room
into the hallway, Jackson approached and said, "You know you're not allowed here." When
Sullivan-Taylor explained that she was visiting a friend, Jackson said she didn't know that and
Sullivan-Taylor could remain.
Blumberg testified to two additional incidents during her attempts to meet with RNs at
the RCRMC: 	(1) In July, a nurse manager evicted her from the break room in theMedical
Acute Unit. (2) One evening a security guard told her she was not allowed on the floors at
night, but only in the cafeteria, and threatened to call the police. Later, while she was talking
with unit employees in the cafeteria, a police officer approached and told them they were only
allowed to talk in that room. In addition, Blumberg testified that several nurse managers,
including Jackson, in OR, ER, ACCU, Labor & Delivery, and Obstetrics, as well as in the
Administration area, told her that she could not visit the SEIU BBs and threatened to call
All three incidents occurred after Sullivan-Taylor's retirement, when she was
employed by SEIU.
15

security if she did not leave. Blumberg testified that when she went through public walkways
adjacent to patient rooms, she never paused and never looked into the rooms. 	She said she was
aware of union flyers affixed to hospital walls, but had no idea how they got there.
George Daniels10 has been SEIU regional director, Riverside, for the past two years.
He testified that on a Sunday in June he was distributing flyers outside the hospital, between
the parking lot and the buitding. Two security guards approached and told him to leave. 	He
said he was on public property, and continued his activity. The guards went inside and
returned with a Moreno Valley police officer, who told him he could not be there. 	The officer
put his hand behind his back and escorted him through the hospital to the human resources
office, in view of visitors and unit employees. 	Someone in the HR office made a few phone
calls and then told him he could distribute flyers outside, which he proceeded to do.
Ramon Martinez is an SEIU organizing coordinator. He testified to two incidents: (1)
On August 21, he went to Same-Day Surgery accompanied by an RN who had just come off
shift. He stood at the door next to the break room while the RN began telling her colleagues
that they could meet with him on their breaks. Nurse Manager Louise O'Rourke (O'Rourke)
became very angry, yelling and screaming at him that he was not allowed there and that he
must leave immediately. 	O'Rourke escorted him to the elevator and then to the first floor,
stating that he could only be in the cafeteria. He then left the premises.
Gregorio Daniels was assigned to work with the represented unit members on 	per
diem campaign and the CNA raiding activity, from March 2007 until September 2008. 	He
testified to two incidents in addition to the one described above near the staff elevator: (1) In
early May, he was on his way to post flyers on the BB located in the OR. 	O'Rourke told him
Not to be confused with SEIU organizer Gregorio Daniels.
16

he could not have access, and that she would post his flyers. 	(2) One weekend day he
was
outside the building distributing flyers, when a Moreno Valley police officer told him
he
could
not be on any
of
the floors, but only in the cafeteria. He then went to the cafeteria.
SEIU argues that because
of
the County's new restrictions, its agents were unable to
speak with unit employees not only in the break rooms and locker rooms, but in the cafeteria as
well, as employees had only short breaks with not enough time to go from their stations to the
cafeteria. 	They were also unable to post current materials, including notices
of
SEIU meetings,
on the designated BBs, which resulted in their inability to conform to Article XXXI, Section I
of
the MOU, requiring that "[T]he posting and removal
of
bulletin board material must
be
maintained in a timely fashion." SEIU contends that its agents never disrupted work, that they
spoke to employees only on their breaks or,
if
working, merely exchanged greetings, and that
the areas which they traversed to get to the break rooms or locker rooms are public access
areas where family members and others often pass through. 	SEIU also contends that the
County changed its policies regarding BBs and access beginning in May 2008 by requiring the
union to provide prior notice to post flyers or speak briefly with unit employees.
SEIU also contends that the ERR Section 20 is unlawful on its face, because its
reference to "work areas" is too vague, given the County's interpretation that it applied to all
areas inside the hospital, except for the cafeteria, as well as outside the employee entrance.
This allegation is not included in the complaint. However, the issue
of
work areas and non
work areas is intimately related to the issues in the complaint and was fully litigated by the
parties at the hearing. I shall therefore make findings and conclusions on this unalleged
violation. (Santa Clara Unified School District (1979) PERB Decision No. 104.)
17

The County complains that SEIU, by its increased and aggressive presence, disrupted
working staff and patient care, and it was justified in limiting access. The County also
contends that it did not change any policy but was merely trying to enforce the current policies.
ISSUES
1. Did the County unlawfully restrict SEIU access to bulletin boards and employees?
2. Is the ERR unlawful on its face?
3. Did the County unilaterally change its policies on SEIU access to bulletin boards
and employees?
4. Did SEIU violate the ERR by distributing flyers and speaking with employees in
lawfully prohibited areas?
CONCLUSIONS OF LAW
Access restrictions
SEIU relies on The Regents of the University of California, University of California at
Los Angeles Medical Center v. SEIU Local 660 (1983) PERB Decision No. 329-H (UCLA
Medical Center), for the proposition that forbidding union access to BBs, employee lounges
and break rooms, even where hospital hallways must be traversed, is unlawful interference.
The County argues that UCLA Medical Center is irrelevant, as it was decided under the Higher
Education Employer-Employee Relations Act (HEERA), which specifically guarantees union
access, 11 while the MMBA does not provide such a guarantee but at section 3507(a) leaves it
up to the employer to "adopt reasonable rules and regulations."
11 HEERA is codified at Government Code section 3560 et seq. Section 3568
provides:
Subject to reasonable regulations, employee organizations shall
have the right of access at reasonable times to areas in which
employees work, the right to use institutional bulletin boards,
18

I disagree with the County. In the fairly recent City
of
Porterville (2007) PERB
Decision No. 1905-M (Porterville), decided under the MMBA, the Administrative Law Judge
(ALJ) found that the city/employer had unlawfully restricted union rights by requiring prior
permission for access to non-work areas. On appeal, the city contended, inter alia, that the
MMBA contains no specific statutory right
of
access. In its appellate decision, PERB noted
with approval the ALJ's reliance on access cases decided under other PERB statutes, i.e., the
Educational Employment Relations Act (EERA) and the Ralph
C.
Dills Act (Dills Act), 12
specifically State
of
California (California Department
of
Corrections) (1980) PERB
Decision No. 127-S, where, despite the absence
of
an explicit statutory right
of
access in the
Dills Act, PERB found that such a right is implicit therein. PERB also noted with approval the
ALJ's citation to Regents
of
the University
of
California, Lawrence Livermore National
Laboratory (1982) PERB Decision No. 212-H, where PERB stated: "the fact that a provision
of
general application contained in [other statutes] is not mirrored by a similar or identical
provision in HEERA does not mean that the policy embodied by such provision is not
applicable to HEERA."
13
I therefore conclude that unions have a right
of
reasonable access under MMBA section
3507(a), and that UCLA Medical Center, supra, PERB Decision No. 329-H, is appropriate
precedent with regard to hospital access. There is much relevant language there:
mailboxes and other means
of
communication, and the right to
use institutional facilities at reasonable times for the purpose
of
meetings concerned with the exercise of the rights guaranteed by
this act.
12
EERA is codified at Government Code section 3540 et seq. The Dills Act is
codified at Government Code section 3 512 et seq.
13
However, in Porterville, supra, PERB Decision No. 1905-M, PERB overruled the
ALJ and found no violation in one instance because the city had a legitimate business reason
and in another because the claim was barred by res judicata and collateral estoppel.
19

[The record] reflects that large numbers
of
patients, family
members, and friends, as well as medical students and attending
physicians frequent the corridors and patient rooms. The
speculative evidence offered by UC does not, in our view, establish
that the presence
of
small numbers
of
union organizers occasionally
traversing the corridors
of
the patient care floors would materially
enhance the potential for infection
....
Similarly, the record does not indicate that the presence
of
nonemployee organizers passing through the patient floor corridors
enroute to areas where access is permitted would cause additional
confusion. There has been no showing that such an occasional
presence would disrupt patients or interfere with delivery
of
health
care .
. . . UC has demonstrated that corridors are commonly used for
physical therapy by ambulating patients, and for transportation
of
patients between treatment areas. We agree with UC's assertion
and would characterize them as patient care areas. 	Similarly, we
note that the sitting rooms on the patient floors are used by family
and friends
of
patients for consultation with medical personnel,
visits with patients, and rest and recuperation
...
We would
characterize them as patient care areas where bans on employee
organization solicitation would be presumptively lawful.
Nonemployee representatives are thus allowed to utilize corridors
on the patient floors only for the purpose
of
traveling to and from
permissible access areas.
We do not characterize the employee lounges, locker rooms, and
classrooms as patient care areas
...
UC's restrictions on access to
the lounges, locker rooms and classrooms are therefore
pn~,mmptivt>ly nnl::iwfol.
UC argues that, in any event, it has demonstrated that disruption would
occur
if
access were allowed to the patient floors and "A" level
of
the
operating room. It argues that, due to overcrowding and limited space,
all areas of the acute care hospital are pressed into service on an
"as-needed" basis
....
We agree
...
that it would not be appropriate to open up all such
multi-purpose areas to access by non-employee representatives
because such access would disrupt such functions. The ALJ
appropriately denied access to many such rooms. However, as to
20

the particular areas at issue herein, there was no showing that the
employee lounges and locker rooms are used for such purposes
[or that] patients or their families use such areas.
The Board further found in UCLA Medical Center that evidence
of
certain incidents
when
union agents approached nurses while engaged in medical procedures or talked to them
in
the
corridors while on duty was not accompanied by evidence
of
any disruption
of
patient care,
and that a limited right
of
access would not necessarily lead to that result. The Board also
considered the "availability
of
alternative access" as an important factor "in striking a
reasonable balance regarding access to health care facilities," citing Beth Israel Hospital
v.
NLRB (1978) 437 U.S. 483 (Beth Israel). 	The Board credited evidence that the employer had
provided "extremely extensive al.ternative access," but it also found:
that many employees cannot leave the immediate vicinity
of
the
patient floors during their shift due to patient needs, and that many
of
those who may be able to leave their work areas do not
characteristically do so, due to the shortness
of
their breaks.
(UCLA Medical Center, supra, PERB Decision No. 329-H.)
The County also cites Beth Israel, for its holding that hospital rules prohibiting
solicitation in "immediate patient care areas" are exempted from the presumption
of
invalidity
which applies to solicitation bans during non-work time in non-work areas, declared in
St. John's Hospital & School
of
l-.fursing (197 6) 222 NLRB 1150 (St. John's).
Bulletin boards
ERR Section 18 and MOU Article XXXI Section 1 provide that BB space be made
available to SEIU, and the County's October 5, 2005, memorandum designates the locations
for those BBs. There is no dispute that SEIU representatives must traverse some work areas
and some patient care areas in order to reach those BB' s. Yet the County has prevented them
from doing so. Evidence from both parties shows that in June, Sullivan-Taylor was headed for
21

the BB in the locker room of the PCU when she was ejected by a nurse supervisor, and when
she returned she found the door locked and a "staff only" sign posted thereon; Blumberg was
stopped several times in several areas of the hospital by nurse managers who told her she could
not visit the union BBs and who threatened to call security if she did not leave; and in May
Gregorio Daniels was on his way to post flyers on the BB in the OR when O'Rourke told him
he could not have access. In addition, O'Rourke admitted that she has regularly ejected any
SEIU representative from the hospital floors and told them to go to the cafeteria.
These actions by the County are contrary to MOU Section 1, which requires SEIU to
keep BB postings "maintained in a timely fashion"; to the October 5, 2005, memorandum,
arrived at through agreement with SEIU; and to MMBA section 3507(a), as analyzed by PERB
in UCLA Medical Center, supra, PERB Decision No. 329-H.
The County has shown no reasonable justification for its restrictions. Bradley testified
to several complaints by staff, but these are hearsay and I do not credit the truth of these
complaints. Only three percipient witnesses testified to alleged BB infractions: 	Baumgarten
said she once saw an SEIU agent covering staff announcements with union flyers on a non
union BB; she told the agent to take them down, then escorted her to the locker room where the
SEIU BB was located. Jackson once saw union flyers scattered on the table and on a non
union BB in the PCU break room; when the agent returned to the room, Jackson told her that
was not a union BB, and led her to the SEIU BB in the PCU locker room. These two incidents
hardly constitute an invasion of the hospital or an intentional misuse of BB access rights. 	The
agents in both cases were attempting to use the wrong BBs, and were promptly led to the right
ones. 	Balisi saw SEIU flyers on hospital walls, but she does not know how they got there; I
therefore cannot hold SEIU liable. Thus, despite the County's claim that SEIU had changed its
22

tactics and become disruptively aggressive, there is no evidence here
of
any general misuse
of
BB access rights.
Accordingly, I find that by restricting SEIU's access to its designated BBs, the County
enforced ERR section
18
in contradiction
of
MMBA section 3507, that by the same conduct
the County interfered with the rights
of
unit employees in violation
of
section 3506 and denied
SEIU the right to represent its members in violation
of
section 3503, and that the County
thereby committed unfair practices under section 3509(b
).
Access to employees
ERR section 20 requires that SEIU make "advance arrangement" prior to visiting
employees in work areas. 	The County contends that all areas
of
the hospital are work areas as
well as patient care areas, and therefore SEIU should have given advance notice. However, in
UCLA Medical Center, supra, PERB Decision No. 329-H, the Board declared that staff break
rooms and locker rooms are not work areas, and that traversing hallways where other members
of
the public walk would not disturb staff or patient care. Dr. Tabuenca's testimony is
in
accord with this analysis. 	Further, Dr. Tabuenca acknowledged that staff engaging in
brief
casual conversation even while on duty would not disrupt their work. The County has shown
no evidence here
of
SEIU representatives visiting employees in work areas, nor
of
any
disruption
of
either work or patient care.
As noted above, O'Rourke has ejected all SEIU representatives from the hospital
whenever she sees them and has ordered them to the cafeteria. 	Sullivan-Taylor, George
Daniels, Gregorio Daniels, and certain unnamed SEIU agents, who were distributing flyers and
speaking with employees outside the hospital building, were all told by either supervisors or
Moreno Valley police officers called by management, that they could be there; further, when
George Daniels refused to leave, a police officer put his hand behind his back and escorted him
23

to the human resources office, in view of visitors and unit employees. 	Yet according to
Baumgarten's explanation of when a shift begins and ends, i.e., at the "hand-off' inside the
building, employees entering or exiting the building are neither on work time nor in awork
area.
Blumberg was ejected from a break room, a non-work area, by a nurse manager; and
one evening she was ejected by a security guard who said she was not allowed on the hospital
floor at night but could only be in the cafeteria, after which a police officer approached her
while she was talking with a unit employee in the cafeteria and said she was restricted to that
room. 	She was also ejected by Beckerle from the waiting room of the Infusion Center where
she was speaking with an RN while waiting for a staff meeting to commence; at first Beckerle
told them to go either to the break room, a non-work area, or the cafeteria; but upon reviewing
a supervisor's prior email, he told a nurse manager to find them and tell them they could only
go to the cafeteria. Martinez was standing near a break room, a non-work area, while an off
duty RN told her colleagues they could talk to him in the break room on their break; O'Rourke
yelled at him that he was allowed only in the cafeteria and must leave immediately.
Baumgarten saw Martinez in the ER hallway over a long period of time, but did not see him
speak with any employee or do anything disruptive, yet she told him to leave; when he said he
had a right to be there, she escorted him to Administration. 	O'Rourke saw an SEIU agent in
the OR area, but did not describe what he was doing. 	She saw two agents near the Same-Day
Surgery break room, a non-work area, trying to talk with RNs, but she did not say whether the
RNs were on duty, were providing patient care, or were even responding to the agents. 	She
saw Daniels near the staff elevator in the GI Lab area talking with RNs, but she did not say
how many RNs or whether they were on duty. For his part, Gregorio Daniels testified that he
was talking with only one off-duty RN who hadjust come off the elevator. I credit his
24

testimony, as it is more complete. There is no evidence that the areas outside the staff elevator
banks are work areas, that patients use these elevators, or that medical equipment is kept in
these areas. 	I therefore do not find them to be work areas.
Tomlin witnessed an SEIU agent at the Radiology registration window asking to speak
with TAP employees, but the one TAP employee assigned to that department at the time was
on duty so Tomlin directed the agent to the cafeteria. He once saw Sullivan-Taylor talking to
on-duty staff in the Radiology hallway; when he told her to leave, she apologized and left. 	He
did not say how long she was there or whether the employees were performing work at the
time. 	For her part, Sullivan-Taylor explained that she was there to deliver a shirt which a unit
employee won in a union raffle, and other employees were saying they would like a shirt like
that. 	Tomlin also saw Sullivan-Taylor recently in the Radiology area; he did not say
how
long
or what she was doing there. He claimed that both times he saw her she was wearing scrubs,
but she testified that she had never worn scrubs since her retirement from the County in
October 2007; the shirt she brought for the Radiology employee was a scrub shirt. I credit her
testimony as it was forthright and clear.
The County complains
of
massive and aggressive appearances by SEIU to all areas
of
the hospital, but the record does not bear this out. The County cites on brief a portion
of
the
transcript where Blumberg was asked on cross-examination how frequently she tried "sneaking
into the hospital," and she answered, "Only whenever I had something set up;" which the
County argues is her admission of wrongdoing. 	However, the County omits that portion
of
the
transcript between the question and the answer, i.e., an objection by SEIU counsel and the
overruling
of
the objection. I therefore do not read Blumberg as admitting to "sneaking into
the hospital," but rather as responding to how often she went there.
25

With regard to the above incidents, I find Baumgarten justified in expelling Martinez
from the ER hallway, where he had lingered for over an hour, as "[N]on employee
representatives are thus allowed to utilize corridors on the patient floors only for the purpose of
traveling to and from permitted access areas." (UCLA Medical Center, supra, PERB Decision
No. 329-H.) I also find Tomlin justified in expelling SEIU agents from the Radiology
registration window and expelling Sullivan-Taylor from the Radiology hallway, and find
Beckerle justified in expelling an SEIU agent from the waiting room of the Infusion Center, as
these are considered work areas. (Ibid.)
However, the other expulsions occurred when SEIU agents were in non-work areas
seeking to speak with employees on non-work time, which cannot be restricted without
legitimate justification. (St. Johns, supra, 222 NLRB 1150.) Further, O'Rourke ejected SEIU
agents any time she saw them in the hospital, and Beckerle's Chief Nursing Officer issued a
directive to send all SEIU agents to the cafeteria.
The County contends that SEIU should have given advance notice under ERR section
20. However, sec.tion 20 requires notice for access to work locations; there is no advance
notice requirement in the ERR or the MOU or the MMBA for access to non-work locations.
The County argues that ERR section 19, Use of Meeting Places, applies. However, section 19
clearly refers to general membership meetings or meetings with large numbers of employees,
not to brief conversations with one or two employees. If section 19 included the latter, there
would be no need for section 20. The County contends that at risk are patient rights to prevent
the disclosure of confidential information. However, Baumgarten acknowledged that there is
an exception in HIP AA to patient conversations overheard in public hallways. The County
claims that access to employees in the cafeteria is a reasonable alternative. However, the
cafeteria is some distance from many work areas and, as in UCLA Medical Center, supra,
26

PERB Decision No. 329-H, many RCRMC employees "who may be able to leave their work
areas do not characteristically do so, due to the shortness of their breaks."
I therefore do not credit the Distirct's contentions, and do not find that it has sustained
its burden of showing legitimate justifications for any of these expulsions, as required in Beth
Israel, supra, 437 U.S. 483. I find particularly egregious George Daniels' expulsion from a
place where he had a right to be, and being escorted through the hospital by the police, with his
hand held behind his back, in view of patients, visitors, and unit employees.
Accordingly, I find that the County enforced ERR section 20 in contradiction to
MMBA section 3507, that by the same conduct the County interfered with the rights of
employees in violation of section 3506 and denied SEIU the right to represent its members in
violation of section 3503, and that the County thereby committed unfair practices under section
3509(b).
The ERR on its face
SEIU argues that section 20 is vague and overbroad and therefore contrary to the
MMBA.
MMBA section 3507(a) allows an employer to adopt a local rule regarding, e.g., access,
but requires that it be "reasonable." PERB Regulation 32603(f) 14 declares it an unfair practice
for an employer to "[ a]dopt or enforce a local rule that is not in conformance with MMBA."
This regulation has been held to require that the employer's rule not "frustrate the declared
policies and purposes of the [MMBA]," (International Brotherhood of Electrical Workers v.
City of Gridley (1983) 34 Cal.3d 191,202).
14 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
27

I find that ERR section 20 can be interpreted and applied in a lawful manner, i.e., to
restrict SEIU' s access to work areas as defined by legal precedent. The County's misconduct
here was its interpretation and application
of
section 20, not the language itself. I therefore do
not find ERR section 20 to be unreasonable or unlawful on its face. 	(County
of
Monterey
(2004) PERB Decision No. 1663.)
Unilateral change
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c), PERB utilizes either the "per se" or "totality
of
the conduct" test,
depending on the specific conduct involved and the effect
of
such conduct on the negotiating
process. (Stockton Unified School District (1980) PERB Decision No. 143.)
15
Unilateral
changes are considered "per se" violations
if
certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802; Walnut Valley Unified School District (1981) PERB
Decision No. 160; San Joaquin County Employees Assn.
v.
City
of
Stockton (1984)
161
Cal.App.3d 813; Grant Joint Union High School District (1982) PERB Decision No. 196.)
Here, SEIU's evidence is undisputed, that prior to May/June 2008, its agents had easy
access to both BBs and employees in break rooms. It is also undisputed that since that time, its
access to both has been severely restricted, with the County consistently ejecting SEIU agents
and insisting that the union must make prior arrangements. It is also undisputed that the
15
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
28

County's restrictions have been imposed without providing SEIU with prior notice or
opportunity to negotiate.
I find that the County has thereby unilaterally changed the policies stated in ERR
sections 18 and 20, and that those changes have had a generalized effect and continuing impact
on unit employees, whose access to SEIU representatives and to information provided in SEIU
flyers is now limited.
As to whether access is within the scope of representation, MMBA section 3504
includes:
[A]ll matters relating to employment conditions and
employer-employee relations, including, but not limited to,
wages, hours, and other terms and conditions of
employment ....
This language is similar to, but even broader than the definition in HEERA section 3562(q)(l):
"wages, hours of employment and other terms and conditions of employment .... " In
Trustees of the California State University (2007) PERB Decision No. 1926-H, decided under
HEERA, PERB clearly held that union access rights were negotiable. As for EERA, section
3543.2 defines the scope ofrepresentation as "(a) ... limited to matters relating to wages,
hours of employment, and other terms and conditions of employment," and goes on to
enumerate several terms and conditions of employment included therein; access rights are not
among them. However, in, e.g., Woodland Joint Unified School District (2005) PERB
Decision No. 628, Standard School District (1987) PERB Decision No. 1775, and Davis Joint
Unified School District (1984) PERB Decision No. 474, PERB held that union access rights
were included as "non-enumerated subjects" under the test set forth in Anaheim Urzion High
School District (1981) PERB Decision No. 177. I therefore find access rights similarly
negotiable under the MMBA.
29

Accordingly, I conclude that the County has failed to meet and confer with SEIU
regarding changes to its BB and access policies, in violation of MMBA section 3505.
SEIU activity
As analyzed above, the record reflects two instances when SEIU agents posted union
flyers on non-union BBs; both times they were quickly corrected and escorted to the proper
union BBs. 	There are also four instances when SEIU agents were in work areas without
advance permission, i.e., the ER hallway, the Radiology registration window, the Radiology
hallway, and the waiting room at the Infusion Center. As analyzed above, I do not find the two
BB incidents to be an intentional misuse of BB privileges. However, having found above that
the County lawfully expelled the four SEIU agents from work areas, I must also find that SEIU
violated the access rules of ERR section 20, which require prior notice.
Accordingly, I conclude that SEIU committed unfair practices under MMBA section
3509(b).
REMEDY
Pursuant to Government Code sections 3509(a) and 3541.3(i), PERB is given the
power:
To investigate unfair practice charges or alleged violations of this
chapter, and take any action and make any determinations in respect
of these charges or alleged violations as the board deems necessary
to effectuate the policies of this chapter.
It has been found that the County unlawfully applied the bulletin board and access
policies of its ERR, and unilaterally changed the policies set forth therein, by disallowing
SEIU access to its designated bulletin boards at the Riverside County Regional Medical Center
(RCRMC) and to RCRMC employees in non-work areas on non-work time. It has also been
found that SEIU unlawfully violated ERR section 20 by allowing its agents to appear at work
30

areas
of
the RCRMC for the purpose
of
speaking with employees, without advance
arrangement. The appropriate remedy is to order the parties to cease and desist from their
unlawful actions.	
It
is also appropriate to order the County to rescind its current restrictive
policies.
It
is also appropriate to order the parties to post a notice incorporating the terms
of
the order.
It
effectuates the purposes
of
the MMBA that employees be informed by a notice,
signed by an authorized agent, that the respective respondents have acted unlawfully, are being
required to cease and desist from their unlawful activity, and that they will comply with the
order. (Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found in Case No. LA-CE-470-M that the County
of
Riverside (County) violated the
Meyers-Milias-Brown Act (MMBA) Government Code section 3500 et seq. The County
violated MMBA section 3507 by enforcing its Employment Relations Resolution (ERR)
sections
18
and 20 to prohibit access by representatives
of
SEIU Local 721 (SEIU) to its
designated bulletin boards at the Riverside County Regional Medical Center (RCRMC) and to
RCRMC employees on non-work time in non-work areas. The County also violated MMBA
section 3505 by unilaterally changing the policies set forth in ERR sections 18 and 20 without
giving SEIU prior notice or opportunity to bargain. By the same conduct, the County also
interfered with the rights
of
employees in violation
of
MMBA section 3506 and deprived SEIU
of
its right to represent employees in violation
of
section 3503. By all
of
this conduct, the
County committed unfair practices under MMBA section 3509(b).
Pursuant to section 3509(b) of the Government Code, it hereby is ORDERED that the
County, its governing board and its representatives shall:
31

A. 	CEASE AND DESIST FROM:
1. 	Prohibiting SEIU access to its designated bulletin boards;
2. 	Prohibiting SEIU access to non-work areas for the purpose of speaking
with small numbers of employees on non-work time;
3. 	Making unilateral changes in union access policies without providing
SEIU with prior notice or opportunity to bargain regarding such changes.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Allow SEIU access to its designated bulletin boards, notwithstanding
that such access may involve traversing hallways, work areas, and patient care areas;
2. 	Allow SEIU access to non-work areas to speak with small numbers of
employees on non-work time without requiring advance arrangement;
3. 	Provide SEIU with notice and opportunity to bargain prior to making any
changes in access policies;
4. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees of the Riverside County Regional
Medical Center (RCRMC) customarily are posted, copies of the Notice attached hereto as an
.Appendix. The Notice must be signed by an authorized agent of the County, indicating that it
will comply with the terms of this Order. Such posting shall be maintained for a period of
thirty (30) consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is
not reduced in size, altered, defaced or covered with any other material;
5. 	Written notification of the actions taken to compiy with this Order shail
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
32

the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on SEIU.
It is also found in Case No. LA-CO-85-M that SEIU violated ERR section 20 by
allowing its agents to access RCRMC work areas for the purpose of speaking with employees
without making advance arrangement, in violation of MMBA section 3509(b).
Pursuant to section 3509(b) of the Government Code, it is hereby ORDERED that
SEIU, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. Allowing its agents to access RCRMC work areas for the purpose of
speaking with employees without making advance arrangements with the County as required
by ERR section 20.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
I . 	Conform to the advance arrangements required by ERR section 20 prior
to sending any agent to speak with employees in work areas of the RCRMC.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees of the Riverside County Regional
Appendix. The Notice must be signed by an authorized agent of the County, indicating that it
will comply with the terms of this Order. Such posting shall be maintained for a period of
thirty (30) consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is
not reduced in size, altered, defaced or covered with any other material;
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
33

or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on SEIU.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof of service, in the
U.S. mail. 	(Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
34

on a party or filed with the Board itself. (See Cal. Code Regs., tit.
8,
§§
32300, 32305, 32140,
and 32135, subd. (c).)
35
Ann L. Weinman
Administrative Law Judge