County of Santa Clara * * * OVERRULED IN PART by County of San Joaquin (2021) PERB Decision No. 2761-M * * * (PERB 2539M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA COUNTY CORRECTIONAL
PEACE OFFICERS’ ASSOCIATION,
Charging Party,
v.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-804-M
PERB Decision No. 2539-M
October 17, 2017
Appearances: Mastagni Holstedt, APC, by Jeffrey R. A. Edwards, Attorney, for Santa Clara
County Correctional Peace Officers’ Association; Cheryl A. Stevens, Deputy County Counsel,
for County of Santa Clara.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
GREGERSEN, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Santa Clara County Correctional Peace Officers’
Association (Association) to a proposed decision by an administrative law judge (ALJ). The
complaint alleged that the County of Santa Clara (County) violated the Meyers-Milias-Brown
Act (MMBA)1 by (1) retaliating against Association President Everett Fitzgerald (Fitzgerald)
by prohibiting his ability to trade shifts because of his protected activities, and (2) failing or
refusing to provide information to the Association regarding a proposed background evaluation
process for incumbent correctional officers.2 The complaint alleged that this conduct
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2 The complaint also included the allegation that the County unilaterally changed the
work schedules of certain classifications, but the allegation was later withdrawn by the
Association.
* * * OVERRULED IN PART by County of San Joaquin (2021) PERB
Decision No. 2761-M * * *

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constituted a violation of MMBA sections 3503, 3505, 3506, 3509, subdivision (b), as well as
PERB Regulation 32603, subdivisions (a), (b), and (c).3
The Board has reviewed the proposed decision and the record in light of the County’s
exceptions, the Association’s response to the exceptions, and the relevant law. Based on this
review, the Board reverses the proposed decision for the reasons discussed below.
BACKGROUND
The County’s Division of Corrections is made up primarily of the Main Jail Complex
(Main Jail) and the Elmwood Correctional Complex (Elmwood). In each complex,
correctional officers (officers) are scheduled to work twelve-hour shifts4 and split up into four
teams (Teams A, B, C, and D). Team A works the day shift Sunday through Tuesday and
every other Wednesday. Team B works the day shift Thursday through Saturday and the
alternate Wednesday that Team A does not work. Team C works the night shift Sunday
through Tuesday and every other Saturday. Team D works the night shift Wednesday through
Friday and the alternate Saturday that Team C does not work. Each team is assigned a team
sergeant.
Section 7.4 of the Memorandum of Understanding (MOU) between the parties allows
officers to trade shifts. It states as follows:
Personnel within a Department will be allowed to voluntarily
exchange days off within a biweekly pay period provided the
County does not incur any overtime or additional costs due to the
voluntary exchanges. All such voluntary exchanges of days off
must have prior administrative review and approval.
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
4 Each shift is technically twelve hours and fifteen minutes long.
2

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In general, the team sergeant is responsible for approving time off for officers on their
designated team. When considering an officer’s proposed shift trade, team sergeants are
concerned with whether the officer has previously failed to pay back the shift trade and
whether the shift trade involves a specialty position such as “visiting” or “control.” Typically,
when an officer fails to pay the shift trade back, the team performs its duties one officer short
that day. An officer’s failure to pay a shift trade back a second time generally results in the
officer not being allowed to trade shifts. When a shift trade involves a specialty position, team
sergeants typically prefer that the two trading officers have the same specialized qualifications.
Fitzgerald is a correctional officer and president of the Association. As the Association
President, Fitzgerald testified that he would often trade shifts to gain access to union members
on different shifts. During breaks or on lunch, Fitzgerald would talk with members about what
was going on and listen to their concerns.
Fitzgerald is also one of the training officers in the specialized “control” unit at
Elmwood and receives a salary augmentation for his training duty. Between January 2011 and
May 2011, Fitzgerald was assigned to train Officer Grumbos (Grumbos) as a control officer.5
Between mid-April and September 2011, the Association and the County were
negotiating a successor MOU. In preparation for negotiations, Fitzgerald, in his capacity as
Association President, was off work on County/union release time for 240.25 hours from
December 2010 to May 15, 2011. Elmwood Captain, Troy Beliveau (Beliveau), received
copies of an e-mail authorizing Fitzgerald’s use of County/union release time.
5 According to Fitzgerald’s testimony, Training Officer Cooper (Cooper) was also
assigned to train Grumbos during this time. In addition, a third officer, Training Officer
Hinkle (Hinkle), also performed some training duties.
3

On May 1, 2011, Fitzgerald requested to trade shifts with another officer, and his
request was approved by the team sergeant and a lieutenant. As a result of the trade, Fitzgerald
was scheduled to work May 12, 2011. On that day, Fitzgerald worked approximately four
hours of his twelve hour shift and then left work for six and one-half hours on union release
time. During the time Fitzgerald was on union release time, his team worked with one less
officer on duty.
Soon thereafter, Elmwood Administrative Sergeant April McHugh (McHugh) and
Assistant Division Lieutenant Kristine Pantiga (Pantiga) were notified that Fitzgerald had
failed to complete his May 12, 2011 shift trade and brought the matter to Beliveau. Concerned
that Fitzgerald’s absences were negatively impacting his team because of his role as a training
officer, Beliveau directed McHugh to conduct an audit of Fitzgerald’s attendance over the
previous six months.
The attendance audit revealed that over six months, Fitzgerald used approximately
140.75 hours of personal/vacation leave, 36.75 hours of sick leave, 18.25 hours of leave
without pay, and engaged in 5.5 shift trades. During this same time period, Fitzgerald used
approximately 240.75 hours of County/union release time. According to the County, the audit
showed that Fitzgerald’s total leave, excluding approved union release time, was more than the
average officer took off work. As a result of the audit, on May 13, 2011, Beliveau sent an
e-mail to the Elmwood sergeants and lieutenants that Fitzgerald would no longer be permitted
to trade shifts. According to Beliveau’s testimony, he took this prohibitory action against
Fitzgerald because Fitzgerald was tasked with training Grumbos, and Grumbos had failed to
complete his requisite training in control.
4

At the end of July 2011, Beliveau was transferred to the Main Jail and Captain Toby
Wong (Wong) became the new Elmwood captain. After this change, Fitzgerald asked Pantiga
if she would approach Wong about reinstating his ability to trade shifts. After consultation
with Wong, Pantiga reinstated Fitzgerald’s ability to trade shifts, but warned Fitzgerald that he
could not “play games.” Fitzgerald was also told he needed to pay back the full shift trade and
that he could not intentionally use union release time to circumvent doing so.
THE ALJ’S PROPOSED DECISION
After a hearing on the merits, the ALJ found that Fitzgerald engaged in protected
activities by holding his position as the Association President and negotiating a successor
MOU on behalf of the Association, and that the County took adverse action against Fitzgerald
by imposing a blanket ban on his ability to trade shifts. The ALJ further found it undisputed
that Beliveau was aware that Fitzgerald was the Association President and a member of the
Association’s negotiating team.
Regarding the necessary connection or “nexus” between the adverse action and the
protected conduct, the ALJ found that the Association met its burden in demonstrating that the
County took adverse action against Fitzgerald because of his protected activity, but that the
County did not violate the MMBA because it established that it would have imposed the
adverse action even if Fitzgerald had not engaged in protected activity.
Accordingly, the ALJ concluded that the County did not retaliate against Fitzgerald
because of his protected activities in violation of MMBA section 3506 and dismissed the
complaint and underlying unfair practice charge.
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THE ASSOCIATION’S EXCEPTIONS AND RESPONSE
On appeal, the Association raises two issues.6 First, the Association excepts to the
ALJ’s determination that the County met its burden to show it would have imposed the adverse
action even if Fitzgerald had not engaged in protected activity. According to the Association,
the County failed to prove that the reason it issued the blanket ban on Fitzgerald’s ability to
trade shifts was to conserve his time as a training officer. Second, the Association argues that
the ALJ failed to analyze the relevant facts under both a theory of interference as well as
retaliation thereby improperly limiting the issue to retaliation only.
DISCUSSION
To demonstrate that an employer discriminated or retaliated against an employee in
violation of MMBA section 3506 and PERB Regulation 32603, subdivision (a), the charging
party must show that: (1) the employee exercised rights under the MMBA; (2) the employer
had knowledge of the exercise of those rights; (3) the employer took adverse action against the
employee; and (4) the employer took the action because of the exercise of those
rights. (Novato Unified School District (1982) PERB Decision No. 210 (Novato).)
1. 	Protected Activity and Employer Knowledge
MMBA section 3502.1 states in pertinent part:
No public employee shall be subject to punitive action or denied
promotion, or threatened with any such treatment, for the exercise
of lawful action as an elected, appointed, or recognized
representative of any employee bargaining unit.
6 The Association does not except to the ALJ’s dismissal of the allegation that the
County also violated the MMBA by failing or refusing to provide information to the
Association. The Board, therefore, affirms this conclusion by the ALJ.
6

Fitzgerald was the Association President. Pursuant to MMBA section 3502.1, he
engaged in protected activity when he lawfully acted in this capacity. (Santa Clara Valley
Water District (2013) PERB Decision No. 2349-M, pp. 16-30.) Fitzgerald was also a member
of the Association’s negotiation team and actively engaged in negotiations for a successor
MOU. Such conduct likewise constituted protected activity. (Healdsburg Union High School
District (1997) PERB Decision No. 1185, p. 47.)
In addition, Beliveau testified that he was aware that Fitzgerald was the Association
President and a member of the Association’s negotiating team, a fact the County has not
disputed. Therefore, the County had knowledge of Fitzgerald’s protected activities.
2. 	Adverse Action
In determining whether evidence of adverse action is established, the Board uses an
objective test and will not rely upon the subjective reactions of the employee. (Palo Verde
Unified School District (1988) PERB Decision No. 689.) In a later decision, the Board further
explained:
The test which must be satisfied is not whether the employee
found the employer’s action to be adverse, but whether a
reasonable person under the same circumstances would consider
the action to have an adverse impact on the employee’s
employment.
(Newark Unified School District (1991) PERB Decision No. 864 pp. 11-12, emphasis added,
fn. omitted.)
On May 13, 2011, Captain Beliveau sent an e-mail to all sergeants and lieutenants at
Elmwood prohibiting Fitzgerald from participating in shift trades. Beliveau’s e-mail
references no end date and therefore amounts to a blanket ban on Fitzgerald’s ability to trade
shifts. This restricts an employee from having flexibility in his or her schedule to take time off
7

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if needed by trading with another officer. For an employee with little to no leave credits, the
ability to trade shifts becomes the sole method in which that employee can enjoy such
flexibility in his or her schedule. In addition, Fitzgerald was arguably denied the benefit
secured by section 7.4 of the MOU. As a result, we agree with the ALJ and find that the
County took adverse action against Fitzgerald by imposing a blanket ban on his ability to trade
shifts.7
3. 	Nexus Between Protected Activity and Adverse Action
“Unlawful motive is the specific nexus required in the establishment of a prima facie
case. . . . Unlawful motive can be established by circumstantial evidence and inferred from the
record as a whole.” (Trustees of Cal. State Univ. v. Public Employment Relations Bd. (1992)
6 Cal.App.4th 1107, 1124.) To guide its examination of circumstantial evidence of unlawful
motive, PERB has developed a set of “nexus” factors that may be used to establish a prima
facie case. Although the timing of the employer’s adverse action in close temporal proximity
to the employee’s protected conduct is an important factor (North Sacramento School District
(1982) PERB Decision No. 264), it does not, without more, demonstrate the necessary
connection or “nexus” between the adverse action and the protected conduct. (Moreland
Elementary School District (1982) PERB Decision No. 227.) Facts establishing one or more of
7 Our concurring colleague would find that the County’s investigation into Fitzgerald’s
attendance constituted an adverse action distinct from its decision to prohibit him from
engaging in shift trades. While it is correct that PERB has recognized that an employer’s
investigation of alleged wrongdoing may constitute an adverse action (State of California
(California Department of Youth Authority) (2000) PERB Decision No. 1403-S; City of
Torrance (2008) PERB Decision No. 1971-M, p. 16), this issue is not raised by the Association’s
exceptions and is therefore not properly before us. (PERB Reg. 32300, subd. (c).) Even if this
issue were before us, the investigation is not alleged in the complaint as an adverse action, the
Association gave no notice to the County that it intended to litigate it as a separate unfair
practice, and the parties have not litigated whether the investigation itself was motivated by
Fitzgerald’s protected activity. As a result, this allegation would not satisfy the unalleged
violation test. (See Fresno County Superior Court (2008) PERB Decision No. 1942-C.)
8

the following additional factors must also be present: (1) the employer’s disparate treatment of
the employee (State of California (Department of Transportation) (1984) PERB Decision
No. 459-S); (2) the employer’s departure from established procedures and standards when
dealing with the employee (Santa Clara Unified School District (1979) PERB Decision
No. 104); (3) the employer’s inconsistent or contradictory justifications for its actions (State of
California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S); (4) the
employer’s cursory investigation of the employee’s misconduct (City of Torrance, supra,
PERB Decision No. 1971-M; Coast Community College District (2003) PERB Decision
No. 1560); (5) the employer’s failure to offer the employee justification at the time it took
action (Oakland Unified School District (2003) PERB Decision No. 1529) or the offering of
exaggerated, vague, or ambiguous reasons (McFarland Unified School District (1990) PERB
Decision No. 786); (6) employer animosity towards union activists (Jurupa Community
Services District (2007) PERB Decision No. 1920-M; Cupertino Union Elementary School
District (1986) PERB Decision No. 572); or (7) any other facts that might demonstrate the
employer’s unlawful motive (North Sacramento School District, supra, PERB Decision
No. 264; Novato, supra, PERB Decision No. 210).
Timing
In the instant case, the ban on Fitzgerald’s shift trades was issued on May 13, 2011, one
day after he had failed to completely “re-pay” a traded shift because he took union release time for
part of that shift. Fitzgerald was the Association’s President between 2003 and June 2011. At the
time the shift trade ban issued, Fitzgerald was actively participating in the parties’ negotiations for
a successor MOU and serving as Association President. Because Fitzgerald was actively
participating in protected activity at the time of the County’s adverse action, we find that the
timing factor has been met.
9

Departure from Established Procedures
Additional factors that support a finding of nexus in this case include the County’s
departure from established procedures and standards when addressing Fitzgerald’s failure to
complete his shift trade. Customarily, when an employee fails to complete a shift trade, the
officer is verbally counseled. Fitzgerald, however, was not provided that opportunity. Instead,
he was prohibited from engaging in any shift trade activity indefinitely. Therefore, we
conclude that the Association has established an unlawful motive for the County’s ban on
Fitzgerald’s ability to trade shifts.
Affirmative Defense
Once a prima facie case is established, the employer bears the burden of proving it
would have taken the adverse action even if the employee had not engaged in protected
activity. (Novato, supra, PERB Decision No. 210; Martori Brothers Distributors v.
Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730 (Martori Brothers); Wright
Line, A Div. of Wright Line, Inc. (1980) 251 NLRB 1083.) Having concluded that the
Association met its burden of establishing a prima facie case, it was incumbent on the County
to show that it would have issued the shift trade ban on Fitzgerald regardless of his
participation in protected activity.
The County identifies three justifications for its decision to ban Fitzgerald’s shift
trading ability: (1) Fitzgerald’s absences were creating a problem with his ability to fulfill his
duties as a training officer; (2) Fitzgerald was allegedly abusing the shift trade policy; and
(3) Fitzgerald was taking excessive sick leave and personal leave. We address each justification
below.
10

The County first claims that Fitzgerald’s absences were interfering with his role as
training officer to Grumbos, thereby necessitating Beliveau’s ban on Fitzgerald’s ability to shift
trade. Fitzgerald was the assigned training officer to Grumbos in the Elmwood control unit
between January 2011 and May 2011. Fitzgerald, however, was not the only training officer
assigned to and/or available to train Grumbos in the control unit. In addition to Fitzgerald,
Cooper and Hinkle were also available and, in fact, did participate in the training of Grumbos.
Because we find that Fitzgerald was not solely responsible for the training of Grumbos, the
evidence does not sufficiently establish how Fitzgerald’s absences interfered with Grumbos’
training necessitating the ban on Fitzgerald’s shift trading ability.
The County also claims that Fitzgerald was abusing the shift trade policy thereby
necessitating its ban Fitzgerald’s ability to shift trade. However, between the months of
December 2010 and May 2011, Fitzgerald only made five shift trades. Of those five shift trades,
only one was not paid back in full. Moreover, the County provided nothing in the record to show
how five shift trades over a six-month period equates to shift trade abuse. We therefore find no
merit to the County’s contention that Fitzgerald was abusing the County’s shift trade policy
justifying the County’s blanket ban on Fitzgerald’s ability to shift trade.
The County’s last claim is that Fitzgerald was taking, on the whole, too much sick leave
and personal leave. Over a seven month period, Fitzgerald utilized sick leave three times. In
that same period of time, Fitzgerald utilized personal leave nine times, vacation twice and took
one-and-a-half days of leave without pay. The County provided no evidence to show that this
amount of sick and personal leave used by Fitzgerald was excessive or objected to by County
management. During the same time period, Fitzgerald had over twenty instances of union and/or
County release time. Beliveau’s claim that he did not consider Fitzgerald’s use of either type of
protected release time when deciding to ban Fitzgerald’s shift trading ability is belied by the fact
11

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that a considerable amount of Fitzgerald’s time away from work was due to his use of
County/union release time, the County cannot then rely solely on Fitzgerald’s other time away as
justification for its action.
Thus, the record does not support the County’s claim that it banned Fitzgerald from
engaging in shift trading because his absences were prohibiting him from training Grumbos, or
that he was abusing the County’s shift trade policy, or that he was taking excessive sick and
personal leave. As a result, the County failed to meet its burden in establishing it would have
restricted Fitzgerald’s shift trading ability notwithstanding his participation in protected activity.
We therefore find that the County banned Fitzgerald from participating in shift trading in
retaliation for his protected activities, in violation of MMBA section 3506 and PERB
Regulation 32603, subdivision (a).
In addition, Fitzgerald’s protected activities were in his capacity as an officer of
the Association. It is well-settled that retaliating against employees for their conduct as union
officers or activists also denies the employee organization its rights to represent employees
(County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M,
adopting proposed decision at p. 30; Newark Unified School District, supra, PERB Decision
No. 864, p. 18), although the Board’s terminology has varied. Some decisions have
described this type of violation as “derivative”8 or “concurrent,”9 while others have used
8 Yolo County Superintendent of Schools (1990) PERB Decision No. 838, p. 12;
McFarland Unified School District, supra, PERB Decision No. 786, proposed decision at
p. 43; North Sacramento School District, supra, PERB Decision No. 264, p. 10.
9 Oakland Unified School District (2007) PERB Decision No. 1880, p. 19; State of
California (Department of Transportation), supra, PERB Decision No. 459-S, proposed
decision at p. 52; San Joaquin Delta Community College District (1982) PERB Decision
No. 261, p. 9; Santa Monica Unified School District (1980) PERB Decision No. 147, p. 2.
12

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neither term.10 Many have found such a violation without any analysis or citation.11
Regardless of vocabulary, however, these cases recognize (either explicitly or implicitly) that
such retaliatory conduct undermines the employee organization’s rights just as surely as it does
the employee’s.
We note that a few Board decisions have held that retaliation against a union officer or
activist is not a violation of the union’s rights unless there is a showing of impact on the union.
For instance, in Novato Unified School District, supra, PERB Decision No. 210, the Board
rejected the proposition that “reprisals against an employee acting as a grievance representative
inherently, and therefore concurrently, deny an employee organization the right to represent its
members.” (Id. at p. 21.) Similar conclusions were reached in Alisal Union Elementary
School District (2000) PERB Decision No. 1412, Pleasant Valley School District (1988) PERB
Decision No. 708, and State of California (Department of Parks and Recreation), supra, PERB
Decision No. 328-S. We believe these cases take too narrow a view of the employee
10 Empire Union School District (2004) PERB Decision No. 1650, proposed decision at
p. 57; Regents of the University of California (1998) PERB Decision No. 1263-H, adopting
proposed decision at p. 73; Livingston Union School District (1992) PERB Decision No. 965,
proposed decision at p. 37; El Dorado Union High School District (1986) PERB Decision
No. 564, p. 31.
11 Palo Verde Unified School District (2013) PERB Decision No. 2337, adopting
proposed decision at p. 22; Escondido Union Elementary School District (2009) PERB
Decision No. 2019, p. 31; Baker Valley Unified School District (2008) PERB Decision
No. 1993, p. 16; City of Torrance, supra, PERB Decision No. 1971-M, p. 30; Jurupa
Community Services District, supra, PERB Decision No. 1920-M, adopting proposed decision
at p. 21; Simi Valley Unified School District (2004) PERB Decision No. 1714, p. 18; State of
California (Department of Corrections) (2001) PERB Decision No. 1435-S, adopting proposed
decision at p. 48; Mountain Empire Unified School District (1998) PERB Decision No. 1298,
adopting proposed decision at p. 36; The Regents of the University of California (1997) PERB
Decision No. 1188-H, p. 29; Trustees of the California State University (1990) PERB Decision
No. 805-H, p. 29; Rancho Santiago Community College District (1986) PERB Decision
No. 602, pp. 14-15; Santa Paula School District (1985) PERB Decision No. 505, proposed
decision at p. 54.
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organization’s rights to act through its officers and members, and we hereby disapprove of
them on this point as contrary to the overwhelming weight of PERB case law on this issue.
Therefore, we find that the County’s retaliatory conduct for Fitzgerald’s protected
activities also denies the Association its rights under MMBA section 3503 and violates PERB
Regulation 32603, subdivision (b).12
Interference with Access to Employees
The Association also asks the Board to find that the County additionally violated the
MMBA by interfering with the Association’s access to members before shifts and on break
periods by banning Fitzgerald from trading shifts. The Association states that this allegation
was contained in paragraph 1813 of the relevant complaint, which alleges that the County
interfered with the union’s right to represent its members in violation of MMBA section 3503
and is an unfair practice under section 3509, subdivision (b), and PERB Regulation 32603,
subdivision (b). According to the Association paragraph 18 constitutes a separate and
independent unfair practice that the ALJ was required to address. We disagree. “A respondent
is entitled to notice of the issues in dispute, so that it can preserve documents and secure
witnesses, or expect repose as to those unfair practice allegations that are dismissed,
withdrawn, abandoned or otherwise disposed of during the Office of the General Counsel’s
investigation.” (City of Roseville (2016) PERB Decision No. 2505-M, p. 15.) “Identifying the
12 It is not necessary to resolve in this case whether such violations are properly viewed
as “concurrent” or “derivative.” In either event, we do not view this violation as “lesser
included.” It is dependent on an underlying finding of retaliation, but this does not mean that
the harm to the employee organization’s rights is less important than the harm to employee
rights.
13 In its statement of exceptions, the Association references paragraph 19 of the
complaint. Since no paragraph 19 exists, we assume the Association intended to instead
reference paragraph 18.
14

essential factual allegations and the theories of liability in a complaint is necessary to provide
adequate notice and ensure a full and fair adjudication of the issues, including an opportunity
for the respondent to raise any affirmative defenses specific to each theory of liability.” (Id. at
pp. 15-16.)
We conclude that the complaint did not place the County on notice of an allegation that
it interfered with the Association’s rights to communicate with its members. Paragraph 17 of
the complaint alleges that the County took the adverse action of directing that Fitzgerald no
longer be approved for requests to trade shifts with other employees “because of [Fitzgerald’s
protected activities], and thus violated [MMBA] section 3506 and committed an unfair practice
under MMBA section 3509[, subdivision] (b) and PERB Regulation 32603[, subdivision] (a).”
Paragraph 18 of the complaint alleges: “This conduct also interfered with Charging Party’s
right to represent employees in violation of Government Code section 3503 and is an unfair
practice under Government Code section 3509[, subdivision] (b) and PERB Regulation 32603[,
subdivision] (b).” Because “[t]his conduct” logically refers back to the retaliation allegation in
paragraph 17, and because there are no additional allegations regarding the Association’s right
to communicate with its members, we do not view paragraph 18 as setting forth an independent
interference allegation. Rather, it is the type of allegation—sometimes referred to as
“derivative,” sometimes as “concurrent,” sometimes as neither—that is commonly found when
an employer has retaliated against a union officer or activist, as we have done above.
The concurrence expresses concern that this conclusion creates obstacles for the Board
to consider an allegation the Office of the General Counsel “has determined should be
litigated.” (Concurrence, p. 38.) We disagree. Paragraph 18 alleges a violation of the
Association’s rights that is predicated solely on a finding that the County retaliated against
15

Fitzgerald for protected activity. Paragraph 18 does not allege a violation predicated on the
fact that Fitzgerald used shift trades to communicate with Association members on behalf of
the Association. That fact was not alleged in the Association’s charge or its amended charge.
It was first raised at the formal hearing before the ALJ. For this reason, we do not see how the
Office of the General Counsel could possibly have determined that such an allegation should
be litigated in this case.
Because we find nothing else in the complaint alleging interference with the
Association’s right to communicate with members as a result of the County’s actions against
Fitzgerald, we may consider this allegation only if it satisfies the unalleged violation test. This
test is met when: “(1) adequate notice and opportunity to defend has been provided [to] the
respondent; (2) the acts are intimately related to the subject matter of the complaint and are
part of the same course of conduct; (3) the unalleged violation has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-examined on this issue.”
(Fresno County Superior Court, supra, PERB Decision No. 1942-C.) The alleged violation
also must have occurred within the applicable statute of limitations period. (Ibid.) For the
following reasons, we find that the Board may consider the unalleged interference violation in
this case.
Though the complaint did not allege a separate allegation that the County interfered
with the Association’s ability to communicate with its members, the County had adequate
notice and opportunity to defend an interference allegation. In addition to simultaneously-filed
post-hearing briefs, the parties were afforded the opportunity to file reply briefs to the ALJ. In
both the Association’s post-hearing brief and reply brief, the Association argued that denying
Fitzgerald’s shift trades independently interfered with the Association’s ability to communicate
with its members. In its reply brief, the County did not argue to the ALJ that this was an
16

unalleged violation, but instead responded to the merits of the Association’s interference
argument. Accordingly, the County had adequate notice and opportunity to defend against a
separate interference allegation.
As for the remainder of the unalleged violation test, the independent interference
allegation involves the same conduct that gave rise to the retaliation allegation in the
complaint. Both parties provided testimony regarding the purpose of Fitzgerald’s shift trading:
the Association presented testimony regarding the benefit of Fitzgerald being able to
communicate with other bargaining unit members on other teams, and the County cross-
examined Fitzgerald on whether communicating with members was the main reason for
Fitzgerald’s shift trades, or merely a side benefit. Finally, because both the retaliation and
interference allegations arise from the same set of facts, and the retaliation allegation was
timely, the interference allegation is also timely.
Interference
The test for whether a respondent has interfered with the rights of employees under the
MMBA does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. The courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer’s conduct was
not justified by legitimate business reasons.
(Public Employees Assn. v. Board of Supervisors of Tulare County (1985) 167 Cal.App.3d 797,
807.)
The MMBA grants a recognized employee organization a right of access to a public
agency’s facilities for the purpose of communicating with employees subject to reasonable
17

regulation by the public agency. (Omnitrans (2009) PERB Decision No. 2030-M.) Likewise,
employees have a protected right to engage in union activity in non-work areas during non-
working time. (State of California (Employment Development Department) (1999) PERB
Decision No. 1365-S.) According to testimony, shift trades were an opportunity for Fitzgerald,
in his capacity as Association President, to contact union members he did not interact with on a
regular basis. During breaks or on lunch, Fitzgerald would talk to bargaining unit members
about union business. Therefore, the Association, through its President, Fitzgerald, and the
officers with whom he spoke when he traded shifts, had a protected right to discuss union
matters during non-working time. (Omnitrans, supra, at p. 22.) By prohibiting Fitzgerald
from trading shifts, the County impeded both his and the Association’s ability to communicate
with employees working on other shifts. This resulted in at least “slight harm” to employee
and Association rights for the purposes of the interference analysis.
If the harm to protected rights is slight and the employer offers justification based on
operational necessity, the competing interests are balanced. (Carlsbad Unified School District
(1979) PERB Decision No. 89.) However, no such balancing is required in this instance.
Consistent with our earlier discussion and rejection of the County’s affirmative defense to the
retaliation charge, the County has provided no justification for its decision to ban Fitzgerald
from trading shifts. As a result, the County’s conduct in denying Fitzgerald’s ability to trade
shifts interfered with, or tended to interfere with, both the Association’s and employees’ rights
under the MMBA.
We therefore find that the County’s conduct in denying Fitzgerald’s ability to trade
shifts independently interfered with employee rights in violation of MMBA section 3506 and
PERB Regulation 32603, subdivision (a). By the same conduct, the County denied the
18

Association the right to represent its members in violation of MMBA section 3503 and PERB
Regulation 32603, subdivision (b).
ORDER
Upon the findings of fact and conclusions of law herein, and the entire record in the case,
it is found that the County of Santa Clara (County) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503, 3509, subdivision (b), and 3506 and Public
Employment Relations Board (PERB) Regulation 32603, subdivisions (a) and (b) (Cal. Code
Regs., tit. 8, § 31001 et seq.), by retaliating against Officer Everett Fitzgerald (Fitzgerald) for
engaging in protected activity by interfering with his protected employee rights under the
MMBA, and by denying the Santa Clara County Correctional Peace Officers’ Association
(Association) its right to represent its member in their employment relations with the County.
Pursuant to the MMBA, Government Code section 3509, subdivision (b), it is hereby
ORDERED that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees in retaliation for their engagement in
protected activity.
2. 	Interfering with employee rights.
3. 	Denying recognized employee organizations the right to represent their
members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the May 13, 2011, e-mail prohibiting Fitzgerald’s ability to trade
shifts, and remove all copies of the e-mail from Fitzgerald’s personnel file.
19

2. 	Within ten (10) workdays of the service of a final decision in this matter, post
at all work locations where notices to employees in the County are customarily 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. In addition to physical posting of paper notices, the
Notice shall be posted by electronic message, intranet, internet site, and other electronic means
customarily used by the County to communicate with its employees in the bargaining unit
represented by the Association. (City of Sacramento (2013) PERB Decision No. 2351-M.)
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. 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 the Association.
Member Winslow joined in this Decision.
Member Banks’ concurrence begins on page 21.
20

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BANKS, Member, concurring: I agree with the majority that the County of Santa Clara
(County) violated the Meyers-Milias-Brown Act (MMBA) by discriminating in terms and
conditions of employment against Correctional Officer Everett Fitzgerald (Fitzgerald) because
of his protected activity as President of the Santa Clara County Correctional Peace Officers’
Association (Association). The County subjected Fitzgerald to closer scrutiny and launched an
investigation into his attendance, including the number of times he traded shifts with other
employees, an established practice and contractual right among employees in Fitzgerald’s unit,
because of Fitzgerald’s contemporaneous use of union released time to fulfil his duties as the
Association’s President. Additionally, the record demonstrates that the County, by its agent
Captain Troy Beliveau (Beliveau), restricted Fitzgerald’s ability to trade shifts with other
employees because of his protected activity on behalf of the Association.1
Although I agree with the majority that this conduct also violated MMBA section 3503
and PERB Regulations by interfering with the Association’s right to represent employees, I
would conclude that, by denying Fitzgerald, in his capacity as the Association President, the
opportunity to trade shifts to communicate the Association’s message with employees on other
shifts, the County concurrently interfered with organizational and employee rights guaranteed
1 While the majority decision does not clearly distinguish between the County’s
investigation into Fitzgerald’s attendance, and its subsequent denial on his use of so-called shift
trades, our case law recognizes both forms of conduct as adverse actions. For investigation
cases, see, e.g., Regents of the University of California (Irvine) (2016) PERB Decision
No. 2493-H, pages 36-37 (investigation into alleged wrongdoing constitutes adverse action,
even when no discipline results) and City of Torrance (2008) PERB Decision No. 1971-M,
page 16 (same). For cases involving the denial of a leave request or eliminating flexibility in
employee schedules, see City of Davis (2016) PERB Decision No. 2494-M, pp. 35-36; City of
Oakland (2014) PERB Decision No. 2387-M, p. 37; and, Regents of the University of California
(1984) PERB Decision No. 403-H; see also Omnitrans (2010) PERB Decision No. 2121-M,
p. 10 (discipline resulting from employee’s use of union released time). Thus, while I agree
with the majority that the County unlawfully discriminated against Fitzgerald, unlike the
majority, I believe the record supports two separate instances of employer discrimination in this
case.
21

by the MMBA. Additionally, because the organizational right of access logically and
necessarily includes a protected right of the employee organization to communicate with its
members in the workplace, the County’s unjustified restriction on Fitzgerald’s ability to use
shift trades to communicate with bargaining-unit employees on behalf of the Association
concurrently interfered with the Association’s right to access and communicate with
employees. (MMBA, §§ 3503, 3506.5, subd. (b).)
I do not agree with the majority’s characterization of this interference violation as
“derivative” of the discrimination allegation involving Fitzgerald as an employee. While the
same set of facts may constitute more than one unfair labor practice, there is no reason to
assume that one violation is “derivative” of the other, when the two allegations involve
separate statutory provisions and/or are analyzed under different tests, as is the case here. As
pointed out by the Association’s statement of exceptions, because PERB typically analyzes
interference allegations under a different standard than that used for employer discrimination,
the County’s liability for interference with protected rights does not depend on the outcome of
the discrimination allegation, as the majority seems to conclude. In short, different does not
necessarily mean lesser included or “derivative.”
Nor do I agree with the majority’s discussion of an unalleged violation, also involving
interference with organizational rights, which, I believe, stems from the majority’s misreading
of the Association’s exceptions. There is one interference allegation at issue in this case.
Because it is expressly set forth in paragraph 18 of the complaint, there is no need to resort to
PERB’s unalleged violations doctrine.
I write separately to explain why this seemingly arcane procedural debate nonetheless
raises significant issues affecting access to the Board’s administrative process to resolve unfair
labor practice allegations. As explained below, I believe the majority’s resort to the unalleged
22

violations doctrine in the present circumstances is contrary to the language and purpose of the
MMBA and other PERB-administered statutes, which recognize an independent statutory right
of employee organizations to represent employees, and which do not regard these
organizational rights as derivative of employee rights.
FACTUAL AND PROCEDURAL BACKGROUND
Paragraph 14 of the PERB complaint alleges that Fitzgerald is a public employee within
the meaning of the MMBA and within PERB’s jurisdiction. Paragraph 15 alleges that Fitzgerald
exercised rights guaranteed by the MMBA by serving as President, a position whose duties
included meeting and conferring with the employer on behalf of the Association. Paragraph 16
alleges that on or about May 16, 2011, the County, through its agent, Beliveau, took adverse
action against Fitzgerald by directing that Fitzgerald’s requests to trade shifts with other
employees (day trades) no longer be approved. Paragraph 17 alleges that the County “took
the actions described in paragraph 16 because of the employee’s activities described in
paragraph 15,” and thus violated MMBA sections 3506 and 3509, subdivision (b), and PERB
Regulation 32603, subdivision (a).
Paragraph 18 alleges that the County’s conduct, as described above, also interfered with
the Association’s right to represent employees, in violation of MMBA section 3503 and PERB
Regulation 32603, subdivision (b). Thus, on its face, the complaint alleges that the County
interfered with the Association’s right to represent employees. The word “derivative” does not
appear in paragraph 18, nor anywhere else in the complaint, and there is no other language
suggesting that paragraph 18’s interference with organizational rights allegation in any way
depends on finding that the County also discriminated against Fitzgerald in his capacity as an
employee, as is alleged in paragraph 17.
23

After concluding that the County had met its burden of showing that it would have taken
adverse action against Fitzgerald, regardless of his protected activity, the proposed decision
dismissed the discrimination allegation. The administrative law judge (ALJ) also dismissed the
interference allegation without, however, identifying or analyzing the relevant facts for this
allegation under the test for interference announced in Carlsbad Unified School District (1979)
PERB Decision No. 89 (Carlsbad) and later applied to alleged violations of organizational rights.
(See, e.g., County of San Bernardino (Office of the Public Defender) (2015) PERB Decision
No. 2423-M, p. 37; County of Riverside (2010) PERB Decision No. 2119-M, pp. 16-23.)
The Association filed a statement of exceptions and supporting brief with the Board.
In relevant part, the Association argues that the ALJ erred by dismissing the interference
allegation without analysis or explanation. The Association does not contend that, by
discriminating in terms and conditions of employment against Fitzgerald, in his capacity as an
employee, the County necessarily or “derivatively” interfered with organizational rights.
Rather, the Association argues that, because PERB uses different standards for analyzing
interference and discrimination allegations, the Association “does not need to win the
retaliation issue to prevail on the interference issue,” regardless of whether the two allegations
arise from the same nucleus of facts. That is, if the County’s conduct unjustifiably tended to
interfere with, restrain or coerce Fitzgerald in the exercise of his rights as the Association
President, then it separately violated the MMBA’s prohibition against interfering with
organizational rights, regardless of whether this same conduct constituted discrimination
against Fitzgerald, in his capacity as an employee of the County.
DISCUSSION
According to the complaint, the discrimination and interference allegations in
paragraphs 17 and 18 arise from the same employer conduct. The majority reasons that the
24

interference allegation must therefore be “derivative” of the discrimination allegation. I find
this reasoning unpersuasive and its implications troubling for several reasons.
Organizational Rights are Separate and Independent, and Not Derivative of Employee Rights
First, the majority’s characterization of paragraph 18 as “derivative” is contrary to the
statutory language and the Legislature’s deliberate policy choice to guarantee certain rights to
employee organizations. The PERB-administered statutes “contain express reference to access
rights [of employee organizations] 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.” (Regents of the University of California (2012) PERB Decision No. 2300-H
(Regents), pp. 18-19, fn. 6; County of Riverside (2012) PERB Decision No. 2233-M, pp. 7-8.)
Even where a statute contains no explicit reference to organizational access rights, the Board
has concluded that, “The right of employees to join and participate in an employee organization
of their choice necessarily implies that organizations have the right to communicate with
employees and members at their work site, where they are generally most accessible.” (State of
California (California Department of Corrections) (1980) PERB Decision No. 127-S, p. 5.)
Moreover, “[a]ccess to employees to facilitate an exchange of information is clearly a threshold
concern not only in an organizing campaign but during the course of the ongoing relationship
between the employee organization and its members.” 	(Ibid.; see also State of California
(Department of Parks and Recreation) (1993) PERB Decision No. 1026-S, p. 5; Regents,
supra, PERB Decision No. 2300-H, p. 19; Petaluma City Elementary School District/Joint
Union High School District (2016) PERB Decision No. 2485, pp. 44-45, and numerous
authorities cited therein.) Given the significance the Legislature has assigned to the rights of
employee organizations to represent employees, including the rights to access and communicate
25

________________________
with employees in the workplace, the majority’s treatment of these rights as “derivative” of
Fitzgerald’s right, as an employee, to be free from employer discrimination seems questionable
at best.
In fact, the term derivative violation appears nowhere in any of the PERB-administered
statutes, nor in our Regulations, and apparently stems from federal practice and procedure before
the National Labor Relations Board (NLRB) and the federal courts. Section 8(a)(1) of the
National Labor Relations Act (NLRA)2 makes it an unfair labor practice for an employer to
“interfere with, restrain or coerce” employees in the exercise of protected rights. Since its
earliest days, the NLRB has treated section 8(a)(1) violations as either independent or derivative,
depending upon whether the conduct at issue violates only section 8(a)(1), or whether it also
violates one of the other employer unfair labor practice provisions found in section 8(a)(2), (3),
(4) or (5). (Higgins, Developing Labor Law, Sixth Ed. Ch. 6.I.C.1 and 2.)3
In this respect, federal law treats every employer unfair labor practice as a section 8(a)(1)
violation, either as an independent violation, or as something akin to a “lesser included” offense
in criminal law. (Ibid.; see also Placerville Union School District (1978) PERB Decision
No. 69 (Placerville), p. 10, fn. 9, overruled by San Francisco Community College District
(1979) PERB Decision No. 105 (San Francisco); and, LEGAL-ELEMENTS TEST, Black’s
Law Dictionary (10th ed. 2014).) As suggested by the term derivative, unless employer conduct
2 The NLRA is codified at 29 U.S.C. section 151.
3 NLRA section 8(a)(2) makes it unlawful for an employer to “dominate or interfere
with the formation or administration of any labor organization or contribute financial or other
support to it,” subject to certain exceptions. Section 8(a)(3) prohibits employer discrimination
“in regard to hire or tenure of employment or any term or condition of employment to encourage
or discourage membership in any labor organization.” Section 8(a)(4) makes it unlawful for an
employer “to discharge or otherwise discriminate against an employee” for participation in the
NLRB’s administrative process. Section 8(a)(5) makes it unlawful for an employer to “refuse
to bargain collectively with the representatives of [its] employees.”
26

________________________
constitutes an independent interference, restraint or coercion violation, as determined by
decisional law, the section 8(a)(1) violation derives from or depends on finding a violation of one
of the other employer unfair labor practice provisions in section 8(a) of the NLRA.
Although the California Legislature drew much of its inspiration from the federal
statute when drafting the MMBA and other PERB-administered statutes, our cases have
repeatedly emphasized that the access, released time and organizational right to represent
employees in their employment relations guaranteed by the PERB-administered statutes, have no
analog in the federal statute. (County of Riverside, supra, PERB Decision No. 2233-M, pp. 7-8;
see also Regents of the University of California, supra, PERB Decision No. 2300-H, pp. 18-19,
fn. 6, and cases cited therein.) To the extent such organizational rights are recognized under
federal law, it is generally because the decisional law of the NLRB and the federal courts have
determined that such rights are implied by and derive from the employee rights expressly
guaranteed by section 7 of the NLRA.4
Unlike the NLRA, however, which makes every employer unfair labor practice a
violation of section 8(a)(1) (interference, restraint or coercion in the exercise of employee rights)
and potentially a derivative violation of other employer unfair labor practice provisions, when
drafting the PERB-administered statutes, the California Legislature chose to include language
4 Section 7 provides:
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized
in section 158(a)(3) of this title.
27

________________________
protecting organizational rights by making interference with such rights separate and
independent unfair labor practices. As we noted in Capistrano Unified School District (2015)
PERB Decision No. 2440, federal law is illustrative but not exhaustive of the representational
rights of employees under California law and federal authorities offer no guidance whatsoever
regarding the separate statutory right of employee organizations to represent employees, which
has no counterpart in the NLRA. (Id. at p. 29, fn. 15.)
MMBA section 3503 expressly guarantees an independent, statutory right of employee
organizations to represent employees, and when read in conjunction with MMBA section 3509,
subdivision (b), and PERB Regulation 32603, subdivision (b), the MMBA makes employer
interference with this right an unfair labor practice, regardless of whether other rights were also
violated. Thus, the majority’s characterization of the Association’s right to represent employees
as “derivative” of other allegations in the complaint appears to rely on a statutory scheme under
federal labor law, but one which the California Legislature has expressly and repeatedly
rejected.5 Other than its observation that the discrimination and interference allegations in
paragraphs 17 and 18 rely on the same conduct, the majority offers no explanation for its
characterization of the interference allegation as “derivative,” nor any attempt to reconcile this
conclusion with the language and purpose of the independent organizational rights guaranteed by
the MMBA and other PERB-administered statutes.
5 In addition to MMBA 3506.5, subd. (b), see also section 3543.1 (organizational rights
under EERA); sections 3568, 3569 (access and released time provisions under HEERA);
section 3515 (organizational rights under Dills Act); section 71815 (organizational rights under
the Trial Court Interpreter Act); section 71633 (recognized employee organization’s right to
represent under the Trial Court Act). (Respectively, these Acts are codified as follows: the
Educational Employment Relations Act (EERA), § 3540 et seq.; the Higher Education
Employer-Employee Relations Act (HEERA), § 3560 et seq.; the Ralph C. Dills Act (Dills
Act), § 3512; the Trial Court Interpreter Employment and Labor Relations Act (Trial Court
Interpreter Act), § 71800; and the Trial Court Employment Protection and Governance Act
(Trial Court Act), § 71600.)
28

The Complaint Does Not Support the Majority’s View that Interference with the Association’s
Rights is Derivative of the County’s Discrimination against Fitzgerald
Second, the complaint does not use the word “derivative” or otherwise designate
paragraph 18’s interference allegation as different in any respect from any other allegation in
the complaint. In the absence of such designation, the majority should explain how it has
determined that the interference allegation in paragraph 18 is derivative, since that is the sole
justification offered by the majority for requiring the Association to meet the more stringent
requirements of the unalleged violations doctrine, simply to have this allegation considered.
The fact that the interference and discrimination allegations may rely on the same nucleus of
factual allegations does not make the interference allegation derivative, since, based on the
language of the complaint, one might just as easily ask why the violation of employee rights in
paragraph 17 is not derivative of the County’s interference with organizational rights, since the
“‘natural and foreseeable consequence’ of permitting an employer to discriminate against
employee representatives is an inevitable chilling effect upon the rights of all employees.”
(Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, pp. 17, 23, italics in
original.) Or, better still, why either allegation should depend on the outcome of the other,
since they rely on different rights guaranteed by separate provisions of the statute.
Although the underlying policy concern in discrimination or reprisal cases is to protect
statutory rights, by ensuring that employees will not suffer a loss of pay, benefits or other
objectively adverse working conditions because of their exercise of protected rights (see, e.g.,
California State University, Hayward (1982) PERB Decision No. 231-H, adopting proposed
decision as modified at p. 19), the immediate focus in a Novato analysis is on the objective
harm done to employment conditions, such as an employee’s pay, benefits, working
conditions, etc. (Palo Verde Unified School District (1988) PERB Decision No. 689
29

(Palo Verde), p. 12; Newark Unified School District (1991) PERB Decision No. 864 (Newark),
pp. 11-12.) In this case, the adverse action was to investigate and then deny Fitzgerald a
negotiated benefit, the opportunity to trade shifts with other employees.
By contrast, the focus of an interference allegation is on the actual or reasonably likely
harm done to statutory rights, which may be either the rights of employees, or an employee
organization, or both. (Carlsbad, supra, PERB Decision No. 89, p. 10 [employer conduct that
tends to or does result in some harm to employee rights]; County of San Bernardino (Office of
the Public Defender), supra, PERB Decision No. 2423-M, p. 55 [policy prohibiting exclusive
representative from representing employees in investigative meetings inherently destructive of
organizational rights]; County of Riverside, supra, PERB Decision No. 2119-M, pp. 20-21, 23
[same test applicable for interference with employee or organizational rights].)
In this case, the harm alleged in paragraph 18 is that of an employee organization’s
access to and ability to communicate with its members in the workplace. Without explanation,
the majority concludes that, in addition to discriminating against Fitzgerald as an employee,
“[b]y the same conduct, the County denied the Association the right to represent its members, in
violation of MMBA section 3503 and PERB Regulation 32603, subdivision (b).” However, it
then inexplicably concludes that the plain language of paragraph 18 does not encompass the
County’s act of preventing Fitzgerald, in his capacity as the Association’s representative, from
speaking with employees on other shifts about union matters. I am at a loss, however, to
understand how the County’s interference with these rights logically derives from its
discrimination against Fitzgerald, in his capacity as an employee and, I fear, that the matter will
likewise cause confusion among the parties, PERB staff and, our constituency.
Suppose, for example, that the Association had failed to prove one or more elements of
the prima facie discrimination case, or that the County had prevailed on its affirmative defense
30

________________________
that it would have investigated Fitzgerald’s leave usage and prohibited him from trading shifts
with other employees regardless of any protected activity. Under the majority’s reasoning, the
allegation in paragraph 18 must necessarily fail as well, because without the discrimination
violation, there can be no “derivative” interference with the Association’s rights to access and
communicate with bargaining-unit employees. Clearly, that is not the law. In cases of alleged
interference, a violation will be found when the employer’s conduct interferes with the
exercise of protected rights, and the employer is unable to justify its actions by proving
operational necessity. (Carlsbad, supra, PERB Decision No. 89, p. 10; State of California
(Department of Parks and Recreation), supra, PERB Decision No. 1026-S, p. 4.)6 This is true,
regardless of whether there are any “independent facts” supporting the interference violation or
whether it relies on the same conduct constituting another employer unfair labor practice in the
same matter. (Sonoma County Superior Court (2017) PERB Decision No. 2532-C, pp. 33-34.)
As the Association correctly points out, because the tests for discrimination and
interference are different, the Association “does not need to win the retaliation issue to prevail
on the interference issue.” In any event the elements of interference and discrimination
allegations, as developed under PERB’s case law, are sufficiently different such that one is not
logically or necessarily derivative of the other, and certainly there is nothing in the language of
the complaint to indicate as much.
6 Although earlier Board decisions suggested that the standard for evaluating harm to
protected rights may be more stringent for organizational as opposed to employee rights (State
of California (Franchise Tax Board) (1992) PERB Decision No. 954-S, p. 4 [“actual” harm
required]), the Board has since repudiated that view and the test is now the same, regardless of
whether the protected rights at issue are those of employees, employee organizations or both.
(County of Riverside, supra, PERB Decision No. 2119-M, pp. 20-21, 23; County of
Sacramento (2014) PERB Decision No. 2393-M, p. 33.)
31

PERB Does Not Automatically Treat Employer Interference as Derivative of Other Violations
Third, the majority’s characterization of the interference allegation in paragraph 18 as
derivative is contrary to Board precedent. In San Francisco. supra, PERB Decision No. 105,
the Board concluded that the employer had violated section 3543.5, subdivision (c), of EERA
by failing to meet and negotiate with the exclusive representative before making changes
affecting negotiable subjects. The Board also held that this conduct “concurrently violated
section 3543.5(b) by denying the Federation its statutory right as an exclusive representative to
represent unit members in their employment relations with the District.” (Id. at p. 19,
emphasis added.)
Use of the word “concurrently” was a deliberate choice. The Board explained that, in
holding that the employer “concurrently” violated separate provisions of the statute, it
disapproved of the logic expressed in Placerville, supra, PERB Decision No. 69, in which the
Board had found it unnecessary to find a section 3543.5, subdivision (b), violation in addition
to a section 3543.5, subdivision (c), violation because such a finding would, according to the
Placerville Board, not afford the charging party additional relief from PERB. In rejecting this
reasoning, the San Francisco Board explained that, “Separate cease and desist orders are
separate remedies, even when each is directed at the same employer conduct.” (Id. at p. 19.)
After discussing the concurrent violation of organizational rights, the San Francisco
decision then concluded that the same employer conduct also interfered with employees’ rights
under Carlsbad, supra, PERB Decision No. 89. The Board’s discussion of this point is also
instructive for the present case, as it noted that the employer’s conduct constituted “at least
slight harm” to the employees’ right to bargain collectively with the employer through their
designated representative, and that the employer had failed to offer a legitimate business
purpose for its conduct. The Board’s application of each step of the Carlsbad test indicates
32

that, even if interference with employee rights was a necessary consequence of a unilateral
change, the Board did not regard the subdivision (a) (interference with employee rights)
violation as merely derivative of the bargaining violation. (Id. at pp. 19-20.) That is, if the
subdivision (a) violation were simply a derivative or a lesser-included allegation, then there
would have been no need for the Board to discuss and apply the specific elements of the
Carlsbad test. If there were any doubt remaining on the point, the Board concluded its
discussion of the concurrent violations of subdivisions (b) and (a) by observing: “Where the
same employer conduct concurrently violates more than one unfair practice provision, it is the
duty of the Board to find more than one violation.” (Id. at p. 19.) This same language from
San Francisco was later quoted, with approval, in State of California (Department of
Corrections & Rehabilitation) (2012) PERB Decision No. 2282-S at page 15.
The majority agrees with me that PERB has not always been consistent in its treatment
of what is a concurrent or derivative violation. However, it neglects to mention County of
Sacramento, supra, PERB Decision No. 2393-M, the most recent discussion of this issue, where
the Board concluded that an employer’s rule prohibiting employees from wearing a union logo
on buttons or clothing in the workplace constituted concurrent violations of subdivisions (a) and
(b) of the MMBA. The Board reasoned that this restriction both interfered with employees’ right
to self-organization and communication with one another in the workplace, and with the
exclusive representative’s presumptive right of access and need to communicate with the
employees it represents. (Id. at p. 33.) The Board explained that the union had “just as much an
interest in having its logo worn as the bargaining unit employees have in wearing it” and,
consequently, that “[t]he harm to employees’ protected rights and the harm to employee
organizations’ protected rights are inseparable in this factual setting.” (Ibid.) It also noted that,
in other facts and circumstances, the Board would have to determine, rather than assume, the
33

proper relationship between an (a) and (b) violation, based on the relative harm to employee and
organizational interests. (Id. at p. 33, fn. 36.)
County of Sacramento also rejected older cases, such as State of California (Franchise
Tax Board), supra, PERB Decision No. 954-S, which had held that no violation of organizational
rights would be sustained without proof of actual harm, as opposed to the Carlsbad standard, i.e.,
reasonably likely harm that could result from the employer’s conduct. (Id. at p. 33; see also
County of Riverside, supra, PERB Decision No. 2119-M [applying same standard for
interference with employee and organizational rights].) Thus, County of Sacramento includes
two holdings which, when read together, seem contrary to the reasoning and conclusions of the
majority opinion. First, the same operative set of facts may constitute separate and independent,
i.e., concurrent, violations of the protected rights of employees and employee organizations.
Second, whether one violation is independent or derivative of another is not subject to a one-
size-fits-all rule, but must be determined on the facts of each case, including whether the harm or
likely harm stemming from the employer’s conduct affects employee rights or organizational
rights predominantly, or both in relatively equal degree.
In light of County of Sacramento, I am not convinced by the majority’s assertion that the
subdivision (b) allegation included in paragraph 18 of the complaint is necessarily derivative of
the allegation encompassed by paragraph 17, since the same operative set of facts may establish
both discrimination and interference (either with employee or organizational rights). (Id. at
p. 33; see also State of California (Dept. of Corrections & Rehabilitation), supra, PERB
Decision No. 2282-S, p. 15.) In particular, the majority does not address County of Sacramento,
the controlling authority on the subject, or attempt to distinguish it and other cases, such as
San Francisco, from the facts of this case.
34

The Record Does Not Indicate that the County’s Interference with Organizational Rights was
Derivative of its Discrimination Against Fitzgerald
Fourth, the majority’s reasoning is undermined by the record in this case. 	To assert,
without further explanation or discussion, that the County’s interference with the Association’s
rights of access to and to communicate with its members in the workplace is derivative of its
discriminatory denial of Fitzgerald’s right, as an employee, to trade shifts with other
employees seems to miss the point. According to the undisputed evidence, Fitzgerald’s
purpose in trading shifts was not to satisfy his personal desire for a change of scenery, but to
serve as the Association’s representative and to interact with members with whom he did not
have contact with on a regular basis. I do not wish to diminish in any way the harm suffered
by Fitzgerald, as an employee, through the loss of a contractual right, and, as I’ve indicated, I
agree with the majority’s conclusion that the County discriminated against him, as an
employee, by taking actions that were objectively adverse to his working conditions because of
his protected activity.
However, in the grand scheme of things, the County’s discrimination against
Fitzgerald’s working conditions seems to me to pale in comparison to the harm to
organizational rights and to the rights of other employees caused by the County denying
Fitzgerald, in his capacity as Association President, the ability to contact unit members and
spread the Association’s message. Applying the logic of County of Sacramento, I would
conclude that the harm done here to organizational rights was at least equal to, if not greater
than, the harm done to Fitzgerald’s rights as an employee, and that it is not only contrary to the
statute, and decisional law but also the record evidence to conclude that the subdivision (b)
violation alleged in the complaint is “derivative” of the County’s discrimination violation.
35

The Majority’s Reasoning Unnecessarily Limits Parties’ Access to the Board’s Processes
Finally, in addition to its confusing and unsupported characterization of paragraph 18’s
interference allegation as derivative, I disagree with the majority’s resort to PERB’s unalleged
violations doctrine to address what appears to me to be the same allegation asserted in the
Association’s statement of exceptions. 	My disagreement with the majority over this
procedural issue may, at first blush, appear academic, particularly where the majority goes on
to find a violation of the “unalleged” matter. However, I am concerned that the majority’s
reasoning will be applied to future cases, thereby impeding the ability of the Board and its
agents to consider allegations that, like the Association’s interference allegation, are clearly
encompassed by the plain language of a PERB complaint.
The Board and its agents determine the legal issues to be considered in unfair practice
proceedings. (Barstow Unified School District (1996) PERB Decision No. 1138, p. 10.)
Issuance of a complaint by the Office of the General Counsel signifies that the dispute is not
only one that the charging party wishes to pursue, but also one that the agency has determined
should be pursued. (County of Fresno (2014) PERB Decision No. 2352-M, p. 4.)
Unlike matters alleged in a complaint, Board consideration of unalleged matters
requires the charging party to show that the respondent had notice and opportunity to examine
witnesses on the subject, that the conduct at issue is intimately related to the subject matter of
the complaint and part of the same course of conduct, that the issues were fully litigated, and
that the allegation is timely. (City of Roseville (2016) PERB Decision No. 2505-M, p. 25.) As
we recently affirmed, “the more elaborate test for considering unalleged violations presumes
prejudice,” and, while the Board and its agents have a duty to consider allegations included in
a complaint, PERB has no obligation to consider unalleged matters, “unless the charging party
can show otherwise” by meeting the more difficult requirements outlined above. (City of
36

Roseville, at p. 22, fn. 15, emphasis omitted; see also City of Montebello (2016) PERB
Decision No. 2491-M, p. 7.)
However, as its name suggests, the unalleged violations doctrine is only necessary, when
an allegation is not already fairly encompassed by the language of the complaint. I am unaware
of any PERB decision or any other authority, and the majority cites to none, which holds that a
matter alleged by the plain language of the complaint must nonetheless meet the criteria of
PERB’s unalleged violations doctrine, in order for the Board to consider it.
Although not explicitly stated, it appears from the majority’s discussion, that to avoid
the unalleged violations doctrine, the Association should have moved to amend the complaint
to allege interference with organizational rights twice: once in its current form as a so-called
“derivative” allegation and once more as an independent allegation. If so, the majority should
offer some guidance on how the language should be amended to indicate that one allegation is
derivative and another independent, when the Office of the General Counsel itself chose not to
use such designations when drafting the complaint. After all, if the Board is going to impose a
higher standard before allowing the Charging party in this case to litigate an allegation already
encompassed by the plain language of the complaint, then I think it owes the Association, our
constituency and PERB staff something more than the conclusory assertion that an allegation is
“derivative” of other allegations in the complaint.
Consistent with its role in determining what charge allegations are sufficient and should
be pursued, if the Office of the General Counsel considers an allegation derivative of another
allegation, it can indicate as much in the complaint. (County of Fresno, supra, PERB Decision
No. 2352-M, p. 4) Because here, the plain language of the complaint clearly alleges interference
with organizational rights, but makes no reference to it as a derivative violation, the majority’s
resort to the unalleged violations doctrine seems unwarranted and contrary to the pleading
37

standards under our Regulations and decisional law. (PERB Reg. 32615, subd. (a)(5); City of
Roseville, supra, PERB Decision No. 2505-M, pp. 12-13.) In particular, it imposes on the
charging party a more stringent standard for consideration of an issue for which the complaint
already gave adequate notice, and it creates additional obstacles for Board consideration of an
allegation that, by virtue of its inclusion in the complaint, the Office of the General Counsel has
determined should be litigated. (Fresno County In-Home Supportive Services Public Authority
(2015) PERB Decision No. 2418-M, p. 20; County of Fresno, supra, PERB Decision
No. 2352-M, p. 4.) In this regard, the majority’s resort to PERB’s unalleged violations doctrine
is also contrary to public policy, inasmuch as it arbitrarily limits parties’ access to the Board’s
administrative process to resolve unfair labor practice allegations.
38

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. SF-CE-804-M, Santa Clara County
Correctional Peace Officers’ Association v. County of Santa Clara, in which all parties had the
right to participate, it has been found that the County of Santa Clara (County) violated the
Meyers-Milias-Brown Act (MMBA), Government Code sections 3503, 3509, subdivision (b),
and 3506, and PERB Regulation 32603, subdivisions (a) and (b) (Cal. Code Regs., tit. 8,
§ 31001 et seq.), by retaliating against Officer Everett Fitzgerald (Fitzgerald) for engaging in
protected activity by interfering with his protected employee rights under the MMBA, and by
denying the Santa Clara County Correctional Peace Officers’ Association (Association) its
right to represent its member in their employment relations with the County.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against employees in retaliation for their engagement in
protected activity.
2. 	Interfering with employee rights.
3. 	Denying recognized employee organizations the right to represent their
members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Rescind the May 13, 2011, e-mail prohibiting Fitzgerald’s ability to trade shifts, and
remove all copies of the e-mail from Fitzgerald’s personnel file.
Dated: _____________________ 	COUNTY OF SANTA CLARA
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.