Salinas Valley Memorial Hospital District (PERB 2689M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
INTERNATIONAL FEDERATION OF
PROFESSIONAL & TECHNICAL
ENGINEERS, LOCAL 20 (ENGINEERS &
SCIENTISTS OF CALIFORNIA),
Charging Party, 	Case No. SF-CE-1620-M
v. 	PERB Decision No. 2689-M
January 13, 2020	SALINAS VALLEY MEMORIAL HOSPITAL
DISTRICT,
Respondent.
Appearances: Danielle A. Lucido, Chief Counsel, for International Federation of
Professional and Technical Engineers, Local 20 (Engineers and Scientists of
California); Littler Mendelson, by Robert G. Hulteng and Luis F. Arias, Attorneys, for
Salinas Valley Memorial Hospital District.
Before Banks, Shiners, and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions to the proposed decision of an Administrative
Law Judge (ALJ) issued on June 14, 2019. This proposed decision was the third to
conclude that the Salinas Valley Memorial Hospital District (Hospital) violated the
Meyers-Milias-Brown Act (MMBA or Act)1 by unreasonably interpreting and applying
its local rules in order to deny recognition of the International Federation of
________________________
1 The MMBA is codified at Government Code section 3500 et seq. Unless
otherwise specified, all statutory references herein are to the Government Code.

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Professional and Technical Engineers, Local 20 (Engineers and Scientists of
California) (ESC), which has sought to become the exclusive representative of the
Hospital’s laboratory scientists since filing its petition for recognition on September 16,
2014.
Having reviewed the full record of this matter, as well as the two prior related
cases,2 we agree that the Hospital violated the MMBA and that it must recognize and
bargain with ESC. That is, we affirm the most recent ALJ’s conclusion that in June
2018 the Hospital again unlawfully withheld recognition of ESC as the exclusive
representative of a proposed unit of laboratory employees by unreasonably enforcing
its local rule on unit determination.
In the Third Proposed Decision now before us, the ALJ definitively ordered the
Hospital to recognize and bargain with ESC. While we agree that is the appropriate
remedy, in affirming this decision we depart from the ALJ’s conclusions of law by
explicitly assessing the June 2018 unit determination in the context of the Hospital’s
past unfair conduct toward ESC.3 Thus, we do not adopt the full proposed decision in
________________________
2 PERB may take official notice of the contents of its own records. (Antelope
Valley Union High School District (2000) PERB Decision No. 1402; County of
Riverside (2012) PERB Decision No. 2280-M; Workforce Investment Board (2014)
PERB Order No. Ad-418-M.) We therefore take notice of PERB’s records in Case
Nos. SF-CE-1287-M (First Proposed Decision), issued November 15, 2015, and
SF-CE-1391-M (Second Proposed Decision), issued November 30, 2017. We refer to
the decision issued on June 14, 2019 as the Third Proposed Decision.
3 The most recent complaint and proposed decision immediately before us—but
the third in the series—also address whether the Hospital dominated or interfered with
the administration of ESC by engaging in conduct that encouraged employees to join
another employee organization. Neither party excepted to the finding dismissing this
allegation. Accordingly, this conclusion is not before the Board, and the ALJ’s

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this matter, but we do endorse the result reached therein, and adopt the ALJ’s factual
findings, found at pages 2 through 17 of the proposed decision, as clarified and
summarized below.
FACTUAL AND PROCEDURAL SUMMARY
The Hospital’s Structure and Local Rules
Salinas Valley Memorial Hospital District is a public healthcare district governed
by the MMBA; it operates Salinas Valley Memorial Hospital, an acute care hospital.
Under its current configuration, the Hospital has three represented bargaining units.
The largest is represented by the National Union of Healthcare Workers (NUHW).
NUHW’s unit is large and diverse, containing 810 employees in clerical, service,
technical, and professional classifications. The NUHW unit includes some laboratory
employees, but its memorandum of understanding notes the unit explicitly excludes
“laboratory technologists (scientists).” The California Nurses Association (CNA)
represents all of the Hospital’s registered nurses in the second unit, containing 683
employees. The International Union of Operating Engineers, Stationary Engineers,
Local 39, AFL-CIO (IOUE) represents 29 employees in various engineering related
classifications. 390 employees remain unrepresented.4
________________________
conclusions regarding this issue are binding only on the parties. We do not speculate
as to whether those findings are supported by the record and consistent with
applicable law. (PERB Regs. 32215, 32300, subd. (c); City of Torrance (2009) PERB
Decision No. 2004-M, p. 12. PERB Regulations are codified at California Code of
Regulations, title 8, section 31001 et seq.)
4 Some of these persons occupy positions that may not be eligible for
membership in a represented bargaining unit. The evidence does not show the

4
Pursuant to section 3507 of the MMBA, the Hospital adopted a local employer-
employee relations ordinance (ERO). In the resolution formally adopting the ERO,
Resolution 92-02, the Hospital’s Board of Directors declared that “[t]he appropriate
officers of the District and the Chief Executive Officer are hereby authorized and
directed to take all steps necessary to carry out the full intent of this Resolution.”
Various amendments to the MMBA since the adoption of the ERO have
rendered the Hospital’s local rules outdated.5 The only local rule with any relevance
to these proceedings is Regulation 2 of the ERO, which contains the following
language:
“APPROPRIATE UNIT. The Board of Directors will decide
the extent of the appropriate unit. The hospital has
historically recognized three employee organizations who
represent approximately 80% of the employees in the
hospital. Any additional units must take into account a) the
appropriateness of the unit in relation to the organizational
structure of the hospital, the possibility of proliferation of
units, and the history of labor relations in the hospital. . . .”6
________________________
precise number of such employees but the ALJ estimated that, at most, 15 percent of
the workforce eligible for organization remains unrepresented.
5 For instance, the ERO is titled, “Ordinance Regarding Election of Labor
Organizations,” and all 17 subparts, referred to as numbered “Regulations,” purport to
require a secret ballot election as the exclusive method for an employee organization
to establish majority support through a secret ballot election. Since 2001, section
3507.1, subdivision (c) has required MMBA-governed employers like the Hospital to
“grant exclusive or majority recognition to an employee organization based on a
signed petition, authorization cards, or union membership cards showing that a
majority of the employees in an appropriate bargaining unit desire the representation.”
(MMBA, § 3507.1, subd. (c).)
6 The Hospital adopted this language in 1992, as part of its original ERO. After
the second proposed decision found a portion of Regulation 2 to be invalid, the

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The Underlying Request for Recognition
On September 16, 2014, Dominic Chan (Chan), an organizer for ESC, sent a
letter to the Hospital’s Senior Administrative Director for Human Resources, Michelle
Childs (Childs), requesting that the Hospital recognize it as the exclusive employee
organization and collective bargaining representative of all Clinical Laboratory
Scientists. Two days later, Chan sent a second letter amending his initial request to
include Medical Laboratory Technicians. Chan’s request also stated that ESC had in
its possession proof of majority support among the employees, and he suggested that
State Mediation and Conciliation Service (SMCS) conduct a card check to verify that
support.
The employees in the proposed bargaining unit all work for the Hospital’s
laboratory, the principal purpose of which is to analyze various specimens for clinical
purposes. The laboratory has divisions that include chemistry, hematology, urinalysis,
blood bank, and microbiology. At the time of ESC’s request for recognition, the
proposed unit included 30 laboratory employees: 22 clinical laboratory scientists, three
lead clinical laboratory scientists, two certified medical laboratory technicians, and one
non-certified medical laboratory technician. One certified histology technician and one
lead histology technician were included in the unit upon Childs’ request. 42 laboratory
employees were excluded from the unit, including eight pathology clerks, 27 laboratory
technician assistants (phlebotomists), two lead laboratory technician assistants, one
________________________
Hospital amended the ERO in February 2018, striking the illegal portion but retaining
the pertinent quoted language.

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laboratory aide, one receptionist, two supervisors, and one director. The pathology
clerks, laboratory technician assistants, and the receptionist are represented by
NUHW.
There is no dispute that Childs, in her capacity as Senior Administrative
Director, was “an appropriate officer” whom the Hospital “authorized and directed to
take all steps necessary to carry out the full intent of . . . Resolution [2],” including
receipt and processing of requests for recognition like that of ESC. However, Childs’
initial reaction was to dispute ESC’s proposed card-check process and to request that
the matter of majority support be determined through a secret-ballot election under the
local rules.7 Several rounds of remonstrations followed. Childs testified that she
ultimately relented and agreed to permit SMCS to conduct a card check “in the interest
of moving the process forward.”
Parties’ Card-Check Agreement
With the assistance of an SMCS Mediator, Kenneth Glenn (Mediator), the
parties moved the process forward. On November 3, 2014, ESC furnished the proof
of support to the Mediator, while the Hospital produced a list of classifications and the
names of the incumbents. On November 11, 2014, the parties executed a
“Card/Petition Cross-Check Election Agreement” (card-check agreement), expressly
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7 This was improper, as the MMBA mandates card-check procedures for
recognition where, as here, the employee organization seeks it. As a statute, the
MMBA controls over the local rule. (See MMBA,Gov. Code § 3507.1, subd. (c); Los
Angeles County Firefighters Local 1014 v. City of Monrovia (1972) 24 Cal.App.3d 289,
295 ["[I]f the rules and regulations of a public agency do not meet the standard
established by the Legislature, the deficiencies of those rules and regulations as to
rights, duties and obligations of the employer, the employee, and the employee
organization, are supplied by the appropriate provisions of the act.”])

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authorizing SMCS to conduct the card check and setting out all substantive terms of
the process:
“2. [the parties jointly request SMCS to make a] cross-
check among all employees in the Unit [Clinical Laboratory
Scientists] who appear on the Employer’s payroll for the
period indicated below [ending date of 11/9/14, list
furnished by Hospital on 11/3/14], to determine whether or
not they desire to be represented by [ESC] for purposes of
collective bargaining.
“3. In the event [ESC] establishes a majority in the Cross-
Check, the [Hospital] agrees to recognize the Employee
Organization as the exclusive representative for the Unit
defined below [i.e., Clinical Laboratory Scientists.]
[¶. . .¶]
“7. Report on Cross-Check Election: Election Supervisor
shall conduct the cross-check and will issue a Report on
Cross-Check Election, finding and determining whether the
Union has been designated and selected as the exclusive
bargaining representative of all employees in the Unit.
“8. Binding Results: It is agreed that the results of this
Cross-Check Election shall be accepted as binding on both
parties.
“For the [Hospital]: /s/ Michelle Childs [Senior Administrative Director of
Human Resources]
“For [ESC]: /s/ Dominic Chan [Organizer]”
(Emphasis added.)
The Mediator conducted the card check that same day in accordance with the
parties’ agreement. The letter publicly certifying the results stated:

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“The employer and the employee organization have agreed
upon the Unit and the employees that constitute that Unit.
The agreed number of employees in the Unit is 31. The
majority designation would be 16 of the signed
authorization to bargain cards/petitions against the
employer submitted employee records. After the
comparison, the undersigned found that the petitioning
employee organization met or exceeded the majority
designation.”
The Hospital filed no objections to the process, nor did it contest the results of the
card check.
After taking no action for more than a month, on December 19, 2014, the
Hospital announced that the unit named and defined in the agreement was not an
appropriate unit for collective bargaining purposes and simply refused to recognize
ESC. Instead, the Hospital offered to submit its unit appropriateness objection to
PERB for decision, followed by a writ of review in the court of appeal. The parties
again argued the issue extensively, but ultimately the Hospital simply refused to
recognize and bargain with ESC absent a court order compelling it to do so.
On February 12, 2015, ESC filed the first unfair practice charge, SF-CE-
1287-M. On April 23, 2015, PERB’s Office of the General Counsel issued the first
complaint, which was later set for hearing before an ALJ.
Case No. SF-CE-1287-M: The First Proposed Decision
The First Proposed Decision found that the Hospital refused to recognize ESC
after a duly authorized SMCS Mediator concluded the union enjoyed majority support
among the employees which the parties had mutually agreed belonged to the
proposed unit. The factual findings further noted that Childs contacted Chan in
approximately December 2014 regarding a disciplinary matter involving a clinical

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laboratory scientist, provided Chan with the employee’s disciplinary records, and that
Chan represented the employee in that matter.8
As to the merits of the Hospital’s failure and refusal to recognize ESC, the First
Proposed Decision found that the Hospital gave no explanation other than to repeat
that it believed the unit contained in the card-check agreement was somehow
inappropriate. Indeed, ESC filed the original unfair practice charge in this matter
because the Hospital simply refused to bargain or take any action to resolve its then-
undefined concerns about the appropriateness of the stipulated unit. On the basis of
these facts, to which no party excepted, the ALJ concluded that ESC was indeed the
recognized employee organization and ordered the Hospital to cease and desist failing
to recognize ESC. The ALJ further ordered the Hospital to follow its own local rules by
rendering a unit appropriateness determination, and subsequently meet and confer
with ESC.
________________________
8 Additional evidence in the record suggests other instances where the Hospital
engaged with ESC as if it was a recognized employee organization. The Hospital’s
answer to the complaint in that matter admitted that it had responded fully to various
requests for information from ESC. Complaint paragraph 14 of Case No. SF-CE-
1287-M alleged that ESC requested the following: wage rates, hours status, medical
and pension benefits, and vacation, sick-time, and overtime policies for Clinical Lab
Scientists, Medical Laboratory Technicians, and Histology Technicians employed by
Respondent. The Hospital’s answer provided an Attachment A, showing that the
information provided to ESC included the following: Retirement Plan Summary Plan
Descriptions; Summary of benefits for all Salinas Valley Medical Hospital employees,
including Non-affiliated lab employees; Health Plan Summary Plan Description for
Non-affiliated employees; Paid Time Off Policy for Non-affiliated employees; Current
employee listing with FTE and pay rate. The record reflects that ESC ultimately
declined to pursue this portion of the complaint.

10
On remand, the Hospital’s efforts to comply with this order and cure its legal
violations resulted in a conclusory written determination that the proposed unit was
inappropriate issued by its Board of Directors on December 17, 2015.9 The one-page
memorandum briefly explained the Hospital’s determination and noted that “splitting a
single department into groups of employees represented by separate unions and
those unaffiliated with any union would increase the probability of conflict or work
disruption,” and “maintain[ing] the long-standing balance of three established
bargaining units” would be a more reasonable use of the Hospital’s resources.
Accordingly, the Hospital decided that because it determined the unit was
inappropriate, it had no further obligations. Faced with this response, ESC demanded
that the matter be submitted to SMCS for a determination on the composition of the
unit, but the Hospital declined to participate in mediation.10 Additionally, the Hospital
once more affirmatively refused to recognize ESC, asserting that ESC had no right to
bargain on behalf of the unit and denying its duty to respond to ESC’s additional
information requests. ESC filed another charge again alleging that the Hospital had
unlawfully failed to recognize it, which resulted in another PERB complaint and
hearing.
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9 In its correspondence to PERB regarding compliance with the order in the
first proposed decision, the Hospital stated that “because there are no ‘represented
employees,’ the Hospital is not required to meet and confer with the Union . . .
[A]ccordingly, the Hospital need not undertake any action to be compliant with . . . the
Order.”
10 The version of Regulation 2 in effect at that time included procedures to
utilize SMCS in the event of such a dispute.

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Case No. SF-CE-1391-M: The Second Proposed Decision
In the Second Proposed Decision, the ALJ again found the Hospital had not
reasonably applied its local rules.11 The proposed decision offered detailed guidance
on unit appropriateness decisions under the National Labor Relations Board (NLRB)
for private hospital facilities, including a discussion of the Health Care Rule.12 As a
remedy, the ALJ again remanded the matter to the Hospital, this time with specific
directions as to how to reasonably reach and support the unit determination. The ALJ
expressed significant reluctance in sending the case back to the Hospital:
“Given that three years have already lapsed, during which
time the Hospital has failed on more than one occasion to
provide the Union with an articulated rationale for its
continued failure to recognize the proposed bargaining unit,
I am loathe [sic] to remand the case yet again to
Respondent with an order for it to exercise its discretion.
Respondent has already demonstrated its unwillingness to
exercise its discretion over the matter, as it did so only after
it was ordered to do so in SF-CE-1287-M; as well as its
reluctance to provide an adequate rationale for its asserted
exercise of discretion, as this most recent unfair practice
charge demonstrates.”
Nevertheless, the ALJ declined to find that the petitioned-for unit described in the
card-check agreement was appropriate. Neither party excepted to the findings of the
Second Proposed Decision, leading to the instant dispute.
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11 The ALJ made the following jurisdictional finding, consistent with her
conclusion in the First Proposed Decision: ESC is the “Recognized Employee
Organization of the proposed unit of Laboratory Employees, as described in MMBA
section 3501, subdivision (b).”
12 See Appropriate Bargaining Units in the Health Care Industry, 29 C.F.R.
§ 103.30 (2005).

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Case No. SF-CE-1620-M: The Third Proposed Decision
Given its third chance, the Hospital repeated its past practice—it decided the
unit was inappropriate and refused to recognize ESC, this time in a unit determination
adopted by the Hospital’s Board of Directors on June 18, 2018.13 The Hospital
followed this vote with the release of a seven-page “Factual Background & Analysis
Report: Unit Appropriateness Determination” on June 27, 2018, justifying the vote.
ESC promptly filed another charge, leading to the Third Proposed Decision now before
us.
At the third hearing, a new ALJ reviewed the Hospital’s latest, and until then,
most thorough explanation for its refusal to recognize and bargain with ESC. The
Hospital’s June 27, 2018 report identified four factors it considered in the analysis: (1)
the organizational structure of the Hospital; (2) the possibility of proliferation of units;
(3) the history of labor relations in the Hospital; and (4) the community of interest and
disparity of interest, as reflected by departmental structure, supervision, frequency of
contact and workspace, skills and training, job functions and duties (i.e. nature of
functions, functional integration, overlap and interchange of duties), and terms and
conditions of employment. The first three of these factors were drawn directly from
the Hospital’s local rules. The last factor was based on the Second Proposed
Decision. The Hospital found each of the four factors weighed against finding the unit
appropriate, as follows.
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13 A bare majority voted to reject the agreed-to unit only after one Board
Member changed his vote, claiming he misunderstood the motion.

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The Hospital found that its organizational structure did not support the proposed
unit as it included neither all unrepresented laboratory employees, nor all
unrepresented professional and technical employees, and therefore it was “non-
conforming” according to the Health Care Rule of the NLRB. Because members of the
proposed unit shared core functions with members of NUHW’s unit within the
laboratory, the Hospital noted concerns with “work jurisdiction disputes and other work
conflicts resulting from that will undermine the smooth functioning of the Laboratory.”
The Hospital found the potential for unit proliferation constituted additional
grounds for denying the proposed unit, stating that proliferation would be “practically
unavoidable if the Hospital decided to recognize a small, non-conforming unit within a
single department of the Hospital.” In response to ESC’s argument that the unit was
contained within a single department, the Hospital reasoned that “if that made a unit
appropriate, the [Hospital] would be unable to deny the petitions of any other union
seeking to represent employees in any one of the 42 separate departments of the
Hospital.” The report stated:
“While the Hospital did acknowledge the existence of two
non-conforming units (CNA and NUHW), these are very
large traditional units that are Hospital-wide. They are not
at all comparable to the Petitioned Unit here, which is small
and encompasses only a portion of one department.”
The Hospital found that the history of labor relations and the unprecedented
organization of the proposed unit weighed against appropriateness. In describing the
Hospital’s collective bargaining history, the report only cited the fact that bargaining
within the Hospital had been limited to three units. In relation to the history of
bargaining as it pertained to the laboratory, the report stated:

14
“[T]he Hospital has not exclusively collectively bargained
with half of the Lab as a single unit. It has only done so for
Lab employees who are represented in a much larger unit
(the NUHW unit) that exceeds the boundaries of the Lab.
There is therefore no precedent set for bargaining with only
a portion of the Lab independently. Moreover the Hospital
Report confirms that it could not find any legal precedent for
recognizing a unit with the same composition as the
Petitioned Unit.”
As to community of interest/disparity of interest, the Hospital found “some base
level of commonality between the employees in the Petitioned Unit because they are
all employees of the Laboratory,” but found that base level insufficient to require a
finding that the unit was appropriate. The Hospital noted that frequency of contact and
shared workspace failed to support the proposed unit because histology technicians
worked on a different floor from other employees in the proposed unit, and in another
workspace, meaning proposed unit employees worked alongside excluded. According
to the Hospital, interaction between histology technicians and others in the unit was
not frequent because of their work location.
In reaching its determination that the unit was inappropriate, the Hospital
notably made no reference to the parties’ card-check agreement in which it agreed to
recognize ESC as the exclusive representative upon proof of majority support of the
employees in the unit. The Hospital also did not consider the fact that it permitted
ESC to represent at least one of those employees in a disciplinary matter, and that it
had responded to at least some of ESC’s requests for information before categorically
refusing to recognize and bargain. Instead, the Hospital determined, yet again, that it
would not recognize ESC or the previously agreed-to unit.

15
On October 25, 2018, ESC again filed an unfair practice charge against the
Hospital in response to the new unit determination and corresponding report.14 On
December 17, 2018, PERB’s Office of the General Counsel issued the related
complaint, alleging in part that the Hospital acted inconsistently with its local rules and
unreasonably withheld recognition of ESC as the exclusive representative of the
Hospital’s laboratory scientists. A three-day hearing was held in February 2019. With
issuance of the Third Proposed Decision, PERB rejected the Hospital’s determination
for a third time. Referring to the clear conflict of interest underpinning any employer’s
unit determination, and especially this employer, the ALJ concluded that the Hospital’s
rationale should be subject to heightened scrutiny. He then concluded that the
Hospital’s analysis of each Regulation 2 factor was either self-serving, one-sided,
easily refuted by counterevidence, or all three. Simply put, neither the evidence nor
the law supported the Hospital’s conclusions. As noted, the ALJ disregarded the
Hospital’s determination as unreasonable, found that the requested unit was
appropriate under the MMBA, and again certified ESC as the exclusive representative
of that unit.
The Hospital timely filed exceptions to the Third Proposed Decision, arguing
that the ALJ had exceeded PERB’s jurisdiction under the MMBA by making a unit
appropriateness determination and ordering it to recognize the union. Additionally, the
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14 Simultaneously on October 25, 2018, ESC initiated compliance proceedings
related to the Second Proposed Decision, alleging that the Hospital failed to comply
with the ALJ’s second remedial order. Though the Hospital alleged its compliance
with each order, PERB's records show that compliance with both the first and second
remedial order remain open.

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Hospital contends that the ALJ erroneously overruled the Hospital’s reasonable
determination that the unit was not appropriate.15 ESC timely filed its responses to the
exceptions, urging the Board to reject the Hospital’s exceptions and affirm the
proposed decision.16 On December 3, 2019, the Board, via an Order to Show Cause
(OSC), directed the Hospital to provide any legal reason why it should not order the
Hospital to recognize ESC as the exclusive representative of the unit of Clinical
Laboratory Scientists, in accordance with the plain terms of the parties’ November 11,
2014 card-check agreement and the remedial order of the First Proposed Decision.
The Hospital timely filed responsive briefing, and ESC filed a timely reply.
DISCUSSION17
The Hospital argues that the contents of its third attempt to justify its persistent
refusal to recognize and bargain with this union are sufficient to satisfy the purposes of
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15 The Hospital’s exceptions also allege that the ALJ wrongly relied on collective
bargaining agreements and other documents not in evidence. Because the footnoted
citations the Hospital excepted to are merely examples added to testimony from the
record, and thus would not impact the outcome in this matter, we decline to address
this alleged error. (See City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
16 ESC also requested that a decision be expedited and reminded the Board
that the matter had been expedited at the lower levels of PERB’s process. We have
granted this request, in the interest of a timely resolution given the long history of
litigation on this topic.
17 The Hospital has requested oral argument in this case; ESC opposes the
request. The Board typically denies such requests 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
as to make oral argument unnecessary. (County of Santa Clara (2018) PERB
Decision No. 2613-M, p. 6, fn. 3.) Because these criteria are met here, we deny the
request for oral argument.

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the MMBA, and in accordance with its local rules, specifically Regulation 2 of the
ERO. We disagree.
As the facts of this long journey have already revealed, neither the Hospital’s
local rules nor the policies of the MMBA entitle it to hold the collective bargaining
rights of these employees in suspense for more than five years while it evades ESC’s
lawful demands to recognize and bargain. Exercising our authority to consider all
evidence before us, including taking administrative notice of our own records, we find
that the Hospital’s most recent application of its local rule in these circumstances was
unreasonable and in conflict with the MMBA.
The Board applies a de novo standard of review when evaluating exceptions to
a proposed decision. (City of Milpitas (2015) PERB Decision No. 2443-M, p. 12.) The
Board also may decline to address alleged errors that would not impact the outcome.
(City of San Ramon, supra, PERB Decision No. 2571-M, p. 5.) 	As part of its de novo
review, the Board may affirm, modify or reverse a proposed decision, order the record
reopened for the taking of further evidence, or take such other action as it considers
proper. (PERB Reg. 32320; Los Rios College Federation of Teachers, Local 2279
(Deglow) (2003) PERB Decision No. 1515, p. 5.) On the other hand, we may address
issues not raised by the parties when necessary to correct a serious mistake of law
and thus prevent an erroneously-decided issue from becoming Board precedent.
(State Employees Trades Council United (Ventura, et al) (2009) PERB Decision
No. 2069-H, pp. 6-7; Morgan Hill Unified School District (1985) PERB Decision
No. 554, pp. 21-22, fn. 13; Fresno Unified School District (1982) PERB Decision
No. 208, pp. 23-24.) Although the Board will generally defer to the issues decided by

18
the ALJ and raised in the parties’ briefing, the Board is not precluded from reviewing
unappealed matters or applying legal analysis not urged by the parties. (Fall River
Joint Unified School District (1998) PERB Decision No. 1259a, pp. 5-6; Apple Valley
Unified School District (1990) PERB Order No. Ad-209a, p. 3; ABC Unified School
District (1991) PERB Decision No. 831b, p. 4.) The ultimate “determination of the
issues to be considered in an unfair practice proceeding before PERB is made by the
Board and its agents, and not by the parties to the proceeding.” (Barstow Unified
School District (1996) PERB Decision No. 1138a, p. 10.)
The Hospital’s June 2018 Unit Determination
We affirm the finding of the Third Proposed Decision that the Hospital
unreasonably applied its ERO in its June 2018 unit determination and effectively
denied employees and ESC their rights guaranteed by the MMBA. Specifically, the
Third Proposed Decision found that the Hospital’s unit determination unreasonably
applied the factors set forth in Regulation 2 and failed to properly analyze the other
factors an employer must consider in the context of a residual unit. The Hospital’s
exceptions and supporting brief set forth two overarching arguments: 1) the ALJ
cannot order the Hospital to recognize ESC because the MMBA provides the agency,
not PERB, with the authority to make unit appropriateness determinations; and 2) if
the MMBA empowers PERB to make unit appropriateness determinations, the ALJ
erroneously overruled the Hospital’s reasonable determination.
We reject both of these arguments. While the Third Proposed Decision only
implicitly recognizes the unique circumstances presented by the two prior unfair
practice findings against the Hospital, we take this opportunity to address explicitly the

19
appropriate deference to be applied to the unit determination in light of those unique
facts. That is, we rely on the Board’s authority and specialized experience in these
matters to scrutinize the Hospital’s most recent unit determination in its full context,
i.e., as the third in a series of related unfair practices. Considered in this proper
context, it is clear that the Hospital again applied its local rule in order to deny
employees their right to representation and ESC’s concomitant right to bargain on
their behalf. Such repeated and methodical unfair practices are anathema to the
purposes and policies of the MMBA. Therefore, we find ample legal and factual
support to justify the ALJ’s conclusion and remedial order in the Third Proposed
Decision.
A. 	PERB is Empowered by the MMBA to Enforce and Apply Local Rules
The MMBA gives public agencies the right to adopt reasonable rules and
regulations for the administration of employer-employee relations, including rules on
recognition of employee organizations. (MMBA, § 3507.) The MMBA also empowers
PERB to enforce and apply a public agency’s rules governing unit determinations.
(Id., § 3509 subd. (c).) In order to be lawful, an agency’s rules and regulations may
not undercut or frustrate the MMBA’s policies and purposes. (International Federation
of Professional & Technical Engineers, Local 21 v. City & County of San Francisco
(2000) 79 Cal.App.4th 1300, 1306 (IFPTE); Huntington Beach Police Officers’
Association v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 501-502.) In other
words, and contrary to the Hospital’s assertions, public agencies do not have an
unqualified right under the MMBA to apply their rules to unit determinations. PERB is

20
further empowered by the MMBA to determine the appropriate remedy for an unfair
practice under the Act. (MMBA, § 3509, subd. (b).)
Before reaching the merits of the Hospital’s latest unit determination, we
consider the applicable standard of review in this context. The MMBA differs from
other statutes under our jurisdiction in that it allows public agencies to establish
reasonable local rules for managing labor relations. (MMBA, § 3507, subd. (a).)
Thus, a public agency governed by the MMBA is in the position of setting rules to
which it, as an employer, will be subject. This dual role allows local tailoring and
diversity of local rules, but it also creates the risk that an employer intent on subverting
its employees’ fundamental rights will misuse its authority to achieve improper ends.
Thus, while the MMBA does not preempt local regulation, any local rule or application
thereof that frustrates its purposes is unlawful. (IFPTE, supra, 79 Cal.App.4th at
p. 1305.) Accordingly, our review of the application of local rules must consider the
purpose of section 3507’s grant of authority and the relevant purposes of the MMBA.
“The power reserved to local agencies to adopt rules and regulations was
intended to permit supplementary local regulations which are consistent with, and
effectuate the declared purposes of, the statute as a whole.” (International
Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 202,
internal quotations and citation omitted.) Among these statutory purposes are public
employees’ “right to form, join, and participate in the activities of employee
organizations of their own choosing for the purpose of representation on all matters of
employer-employee relations.” (MMBA, § 3502.)

21
In the typical dispute concerning a unit determination, where reasonable minds
could disagree, the Board does not substitute its judgment for that of the local agency.
(United Clerical Employees v. County of Contra Costa (1977) 76 Cal.App.3d 119, 125,
citing Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d
331, 338-39.) Under this deferential standard, the Board will uphold a unit
determination as reasonable unless there is proof to the contrary (Id.) Similarly, the
courts instruct us to apply the substantial evidence test to a local agency’s unit
determinations and to scrutinize it for an abuse of discretion. (See Covina–Azusa Fire
Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, 61 [a city’s appropriate-unit
determination regarding its firefighter employees is to be reviewed by the superior
court for an abuse of discretion, and superior court should not determine on its own
review of the evidence what the appropriate unit is].) Under this substantial evidence
test, the agency’s findings are presumed to be supported by the administrative record
and the challenging party has the burden to show that they are not (JKH Enterprises,
Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1062.) thereby
allowing the Board to avoid disturbing municipal autonomy while also guarding against
local rules or applications that frustrate the Act.
However, the Board has never applied such a deferential standard of review to
the unit determinations of an employer that has on more than one prior occasion
unreasonably applied its same local rule in such a manner as to frustrate the
fundamental organizational rights of employees and their union.18 In view of the two
________________________
18 Neither have the courts, which is why the dissent’s reliance on judicial
interpretations of the appropriate standard for review is misplaced. Insofar as those

22
prior unfair practice findings against the Hospital that center on its unreasonable
application of its local rules to deprive these employees of representation, we believe
the Hospital’s latest unit determination in this matter is not entitled to customary
deference. Stated another way, to the extent the Hospital’s determination is entitled to
a presumption of correctness, the Hospital’s past misconduct is more than sufficient to
rebut that presumption. Accordingly, we conclude that ESC met its burden of showing
that the Hospital’s reasons for its latest determination fail to withstand scrutiny in light
of its past unfair practices and constituted an abuse of discretion, as explained below.
B. 	The Hospital Unreasonably Applied Regulation 2
The Hospital argues that the ALJ erred in substituting PERB’s judgment for the
reasonable judgment of the Hospital. We disagree. The ALJ appropriately rejected
the Hospital’s application of Regulation 2 because it undercut the purpose of the
MMBA and denied employees and ESC fundamental rights guaranteed by the Act.19
________________________
cases deal with employers that have not demonstrated a proclivity to violate the
MMBA, they tell us nothing about whether the unit determinations of a recidivist
employer are entitled to customary deference. Unlike Member Shiners, we will not
pretend as if the Hospital comes to these proceedings with clean hands nor will we
ignore its history of unfair practices.
19 While the Hospital excepts to nearly each of the ALJ’s findings of law related
to the application of unit criteria to the proposed unit as “erroneous,” we decline to
analyze some findings to the extent they do not alter the outcome. (City of San
Ramon, supra, PERB Decision No. 2571-M, p. 5.)

23
a. 	The Hospital Frustrates the Purposes of the MMBA and
Employees’ Statutory Rights to Representation
Foremost, the Hospital failed to apply its unit determination criteria in
accordance with the purposes of the MMBA.20 Citing County of Riverside (2010)
PERB Decision No. 2119-M, p. 13. (County of Riverside), the Hospital relies on the
proposition that because reasonable minds could differ regarding its application of the
unit criteria, PERB may not substitute its judgment for the judgment of the agency. As
noted ante, we reject the applicability of that proposition to this case, in light of the
history of unfair practices. In any event, although the Hospital repeats County of
Riverside’s ruling, it fails to consider the other pertinent inquiry underlying an unfair
practice charge arising from the application of a local rule under the MMBA: whether
the rule or its application is consistent with and effectuates the purposes or express
provisions of the MMBA. (See County of Amador (2013) PERB Decision No. 2318-M;
County of Imperial (2007) PERB Decision No. 1916-M; International Brotherhood of
Electrical Workers, Local Union 1245 v. City of Gridley , supra, 34 Cal..3d 191, 202.)
In enacting the MMBA, the Legislature stated its purpose of “providing a uniform basis
for recognizing the right of public employees to join organizations of their own choice
and be represented by those organizations in their employment relationships with
________________________
20 We reject the dissent’s contention that our determination places the Hospital
at odds with the Second Proposed Decision, or places it in a Catch-22 situation. We
do not fault the Hospital for applying the criteria indicated by that ALJ, but rather note
that despite the efforts of the Second Proposed Decision to direct the Hospital to
reasoned decision-making, it instead applied those criteria in a demonstrably self-
interested and unlawful manner. Rather than a Catch 22 for the employer, it would be
more appropriate to refer to this saga as a Kafkaesque quagmire for the employees
whose rights the Hospital has held in suspense for 5 years.

24
public agencies.” (MMBA, § 3500). The Hospital ignored and frustrated the stated
purpose of the MMBA and the rights granted to employees when it applied the unit
criteria specified in its ERO.
In assessing and applying unit criteria under its statutes, PERB notes that those
criteria must be applied holistically, not mechanistically, with a view to fulfilling the
purposes of the statute. (See Regents of the University of California (2015) PERB
Decision No. 2422-H, pp. 5-6 (Regents).) Regents is instructive here, even though,
unlike under the MMBA, unit determinations under the Higher Education Employer-
Employee Relations Act (HEERA)21 are determined by PERB using criteria
established by statute. (See MMBA, § 3521).22 Notably, however, the holistic
approach in Regents considers not only the statutory criteria, but also the obligation to
harmonize those criteria with the remainder of the statute—the same task set to PERB
when reviewing an agency’s application of a local rule. (See City of Long Beach
(2012) PERB Decision No. 2296-M, p. 19 [obligation to attempt to harmonize local
________________________
21 HEERA is codified at Government Code section 3560 et seq.
22 The Hospital repeatedly excepts to citations under statutes other than the
MMBA. While the MMBA does have unique attributes, where the statutes are similar,
agency and court interpretations under one statute are instructive under another and
may establish applicable precedent. (See Zerger, ed. (2nd ed. 2019) California Public
Sector Labor Relations § 2.10, fn 1; Los Angeles County Superior Court (2018) PERB
Decision No. 2566-C, p. 25, fn. 17, citing Coachella Valley Mosquito and Vector
Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072, 1090
[Board endeavors to harmonize, when possible, the various statutes under its
jurisdiction]; Alameda County Medical Center (2004) PERB Decision No. 1620-M, p. 2
[“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” quoting Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d
608].)

25
rules with the requirements of the MMBA].) The ALJ correctly noted that the
importance of a balanced analysis is elevated under the MMBA because the employer
exercises a quasi-judicial function while possessing a vested interest in the outcome.
(Grodin, Public Employee Bargaining in California: The Meyers-Milias-Brown Act in
the Court (1972) 23 Hastings L.J. 719, 741-742.) Here, the employer’s vested interest
in the outcome is even more pronounced when viewed through the lens of the two
prior proposed decisions that found the Hospital unreasonably applied its unit
determination rule in violation of the MMBA. The Hospital explained in relative detail
how it applied the surrounding facts to its four unit determination criteria, but there was
no indication in the factual record that the Hospital considered or balanced its own
desires—operational efficiency, possible unit proliferation, the hospital’s history of
labor relations, and community/disparity of interest—alongside the fundamental
employee rights to form and join employee organizations and to be represented by
those organizations in their employment relationships. (See MMBA, § 3500.) In our
view, this failure to give weight to the interests of its own employees is consistent with
the Hospital’s past unfair conduct and thus patently unreasonable.
Indeed, a review of the extensive record underlying this dispute reveals
substantial evidence to support the factual findings of the Hospital’s repeated bad faith
and unlawful conduct toward ESC. In the first case, the Hospital simply refused to
recognize or bargain with ESC after declaring the petitioned-for unit inappropriate
without any written determination under its local rules. In the second case, the
Hospital issued a conclusory determination, declaring the unit inappropriate without
any rational analysis. These findings are conclusive for purposes of this case; the

26
Hospital cannot deny committing these unfair practices since it took no exception to
the underlying proposed decisions. (PERB Reg. 32305, subd. (a).) In all instances,
including this latest determination now on review, the Hospital made no reference to
its card-check agreement with ESC and thus never explained whether or how its
agreement to recognize ESC as the exclusive representative of the unit functioned in
its determination to declare the unit inappropriate. The Hospital’s repeated failure to
give any weight to its agreement to recognize ESC evinces a wanton disregard for
significant facts and evidence. It should go without saying that a unit determination
that ignores the central evidence, like an employer’s agreement to grant recognition, is
unreasonable and an abuse of discretion.23
Further, the record also contains evidence that the Hospital’s determination was
motivated by its desire to maintain its current structure of three units and three
unions.24 The MMBA does not give the Hospital the right to determine which
employees get the benefit of the statute or which must remain unrepresented, and it
certainly does not empower it to determine the number and identity of the employee
organizations that represent its employees. (See MMBA, § 3502.) By considering
each of its four factors in a vacuum, and willfully disregarding the organizational rights
________________________
23 The dissent strangely suggests that relying on the card-check agreement
creates a due process concern. We note that the card-check agreement was admitted
into evidence at the hearing. Furthermore, we provided the parties an opportunity to
brief whether the card-check agreement and/or remedial order resolves the current
dispute.
24 The Hospital’s report notes that the history of labor relations weighs against
ESC based on the fact that the employees had not previously been organized or
represented, and further that bargaining within the Hospital had been limited to three
units.

27
of employees and ESC, the Hospital unlawfully focused on its desired outcome at the
expense of rights conferred by the MMBA.
Our dissenting colleague cites to City & County of San Francisco (2017) PERB
Decision No. 2540-M (City & County of San Francisco) for the proposition that intent is
irrelevant in PERB’s review of a local rule. We find this statement from City & County
of San Francisco inapposite to the present facts, as well as unsupported by any other
caselaw.25 In City & County of San Francisco the union alleged that the employer’s
local rule violated the MMBA on its face. (Id. at p. 19.) The employer countered that it
had bargained in good faith with the union regarding the impact of the rule, thus
excusing it from such a facial challenge. (Id. at p. 23.) It was in response to this
argument that the Board found the employer’s good faith irrelevant in assessing
whether a local rule violated the MMBA on its face. (Ibid.) In other words, the
presence of a good faith motivation did not immunize the rule from a finding that it
violated the Act.26
________________________
25 While County of Monterey (2014) PERB Decision No. 1663-M, p. 18, which
City and County of San Francisco, supra, PERB Decision No. 2540-M cites for this
proposition, indeed does not include a requirement of intent in its discussion
assessing the local rule, it only references the irrelevance of intent in discussing
domination, which uses a distinct analysis. (County of Monterey (2004) PERB
Decision No. 1663-M, p. 18.) We are aware of no other PERB matter that has directly
addressed the relevance of motivation or intent in assessing a local rule.
26 The Board simultaneously noted that it did not rely on comments by the
County Supervisor that suggested the proposition behind the rule was intended to be
anti-labor, in part because these statements could not be imputed to the voters who
ultimately enacted the rule. (City & County of San Francisco, supra, PERB Decision
No. 2540-M, p. 23 at fn. 14.) This finding appears to turn on the sufficiency of the
evidence, which is also distinguishable.

28
Here, ESC alleges that the Hospital unreasonably applied its local rule when
making the unit determination at issue. PERB’s review of an as-applied challenge, by
its definition and as contrasted with a facial challenge, requires evidence regarding the
manner in which an employer rule or policy was actually enforced. In considering
whether an employer has unreasonably applied a local rule, evidence of an
employer’s conduct and motivation is clearly relevant to the analysis. To insist the
Hospital’s motivations are irrelevant in this context is to willfully disregard the
circumstances surrounding its application of Regulation 2.27 The circumstances
surrounding the Hospital’s application of the rule, including its intentions, are indeed
relevant here where it is apparent that the Hospital’s repeated unlawful conduct and
results-oriented approach deprived employees and the employee organization of their
rights under the MMBA to choose a representative and be represented in their
dealings with the employer. (MMBA, § 3500.)
b. 	The Hospital’s Specific Application of the Unit Criteria is Also
Unreasonable
The Hospital’s analysis fails on a more granular level as well, since it
unreasonably applied each of the four factors it considered in its determination:
(1) the organizational structure of the Hospital; (2) the possibility of proliferation of
________________________
27 We disagree with Member Shiners’ dissent, which characterizes this line of
analysis as a potential due process concern. The history of the Hospital’s repeated
unfair practices toward ESC has always been squarely at issue in this proceeding.
We note that ESC did indeed argue in its opening statement that the Hospital had an
“unlawful motive” for the unit determination, giving the Hospital specific notice that its
intent was at issue.

29
units; (3) the history of labor relations in the Hospital; and (4) the community of
interest and disparity of interest.
The Hospital’s analysis of organizational structure found the unit to be
inappropriate because it failed to include all remaining unrepresented employees
throughout the Hospital, or all remaining unrepresented professional and technical
employees. In the absence of such breadth, the unit was deemed to be “non-
conforming” under the so-called Health Care Rule of the NLRB.28 The Hospital further
noted that with the shared core functions between the proposed ESC employees and
members of NUHW’s unit within the laboratory, the Hospital had concerns with “work
jurisdiction disputes and other work conflicts that will undermine the smooth
functioning of the Laboratory.” The Hospital’s analysis exemplifies the mechanistic
approach that is to be avoided. (See Regents, supra, PERB Decision No. 2422-H,
pp. 5-6.) A more rational approach would acknowledge that the current unit
configurations are already non-conforming, meaning that the Hospital never cared
about achieving conformity with the NLRB’s rules in the past. Thus, a unit cannot be
declared inappropriate on this basis alone. Recognizing this, the Hospital further
argued that its existing non-conforming units are appropriate for collective bargaining
purposes because they are large. But this simply means that the Hospital’s collective
bargaining program is sufficiently agile and robust to tolerate a lot of nonconformity; it
does not mean that a smaller non-conforming unit is inappropriate for collective
bargaining purposes. Further, the potential for work jurisdiction disputes is already
present under the existing organizational structure. Some members of the laboratory
________________________
28 See 29 C.F.R. § 103.30 (2005).

30
are represented by NUHW while some are unrepresented, and some employees like
licensed vocational nurses represented by NUHW work alongside registered nurses
represented by CNA. The Hospital offered no evidence to support its alarmist
concerns about any increased potential for friction between workers.
The ALJ correctly found that the Hospital’s concern with the potential for future
unit proliferation—the factor upon which the Hospital relies most heavily—is flawed
and unreasonable. The Hospital’s analysis fails to consider and weigh the fact that
the current configuration of three units dates back many decades, indicating little
outside interest in organizing the residual unrepresented employees.29 Moreover, the
small size of ESC’s proposed unit is not a disqualifying factor alone: it contains the
same number of employees as IUOE’s unit.
The Hospital challenges the ALJ’s determination that decisional law regarding
severance petitions (e.g. City of Glendale (2007) PERB Order No Ad-361-M; County
of Orange (2016) PERB Decision No. 2478-M, which the Hospital cited to support its
determination), can be distinguished from unit determination matters where
unrepresented employees seek a new unit. We concur with the ALJ that the instant
facts are distinguishable from severance matters, and further note that requiring the
Hospital to recognize the distinction is not tantamount to ordering it not to consider all
of the factors contained in Regulation 2, including the history of labor relations at the
________________________
29 NUHW Organizer Grant Hill testified at hearing that NUHW lacked interest in
organizing such a small group of employees.

31
hospital.30 The Hospital’s problem is that it unreasonably interpreted its history of
labor relations to mean it may only maintain the current three units and three unions.
Decisions regarding severance petitions are not relevant here because employees
seeking to sever from an existing unit are already represented, and thus already
exercising their basic right to join and be represented in their dealings with the
employer. And it is true that unit determination criteria applied in the severance
context may be consistent with a preference for broad units over a proliferation of
smaller units. (See, e.g., County of Orange, supra, PERB Decision No. 2478-M, pp.
3-4; City of Glendale, supra, PERB Order No. Ad-361- M, pp. 5-6.) But unlike a
severance petition, ESC does not seek to dilute and fragment an existing unit. Rather
it seeks to represent employees who historically have had no representation or
bargaining rights. Where the decision to deny certification of the unit is tantamount to
deciding the employees must remain unrepresented in practical perpetuity, the
employer must meaningfully grapple with this impact when applying its local rule.31
Having failed to do so, the Hospital’s determination is unreasonable.
________________________
30 The Hospital argues that the ALJ’s analysis that severance matters can and
must be distinguished from initial representation matters was akin to ordering it to
ignore the history of labor relations at the hospital as part of its unit determination.
31 The ALJ dismissed the allegation of domination, and we do not revisit it here.
Notably, however, the Hospital repeatedly suggests that the only appropriate way for
the petitioned-for lab scientists to be represented is by NUHW, which the record
reflects neither the employees of the proposed unit nor NUHW support. While the
legal question of domination is not before us, the record evidence on this topic
provides additional compelling support for ESC’s assertion that the Hospital
unreasonably applied ERO Regulation 2. The dissent dismisses the deprivation of
representation as speculative; we find that to be wishful thinking which ignores record
evidence. Such a result turns a blind eye to the facts and the Hospital’s conduct,

32
Though employees have a right to choose their employee organization, PERB
has noted they do not have a similar right to choose their bargaining unit. (Regents of
the University of California (2017) PERB Order No. Ad-453-H, p. 9; County of
Riverside, supra, PERB Decision No. 2280-M at p. 9.) The circumstances here,
however, require a more nuanced consideration of these overlapping concepts.
Where the Hospital misuses the unit appropriateness determination as a smokescreen
to thwart employees’ choice of representative—effectively forcing them, through its
recurring unlawful conduct, to continue to have no union at all—the systematic and
repeated denial of the unit becomes inextricable from employee choice.
The Hospital’s conclusion that the proposed unit lacks sufficient community of
interest is likewise flawed. All of the employees in the laboratory work in relatively
close proximity to one another, have the same supervision, have frequent contact with
each other, and share a common function. They share substantial mutual interest in
matters subject to meeting and conferring.32 (See Monterey Peninsula Community
College District (1978) PERB Decision No. 76, p. 13.) That there is also interchange
with non-bargaining unit employees in the laboratory is not sufficient to defeat the
overall community of interest in this context because the duties of employees within
the unit are distinct, and the mere fact that they work with others outside the unit is not
evidence that their respective interests will collide or merge.
________________________
including the historic exclusion of these employees from any unit, despite past
accretions and unit modifications to NUHW’s unit.
32 The Hospital itself adjusted the composition of the unit by adding histology
technician classifications to its list for the card-check, so it may not now rely on those
additions to attack the community of interest within the unit.

33
Finally, we cannot agree with the Hospital’s conclusion that the creation of this
unit would negatively impair its operations. In cases where unit proliferation is at
issue, the employer may rely on the adverse impact on its operational efficiency in its
unit determination analysis. (Pleasanton Joint School District/Amador Valley Joint
Union High School District (1981) PERB Decision No. 169, p. 4.) However, if
dismissing the petition effectively denies employees the right to representation, the
employer's rejection based on the inappropriateness of the unit is generally warranted
only where there is “convincing evidence in support of the . . . claim that efficiency of
its operations would be impaired.” (Ibid.) Here, as with potentially disruptive
jurisdictional disputes, the Hospital’s evidence was purely speculative and insufficient
to demonstrate concrete operational harm. That is, there is no reason to conclude
that negotiations with a fourth bargaining unit would unduly impact the Hospital’s
ability to conduct its business or manage its employees.
In summary, the Hospital applied its unit determination criteria in a manner that
cannot withstand rational scrutiny and thus constituted an abuse of discretion. Rather,
in each instance the Hospital aggrandized selected facts to arrive at a self-serving
conclusion. From its history of unfair practices, we surmise that the Hospital never
intended to act in good faith in considering ESC’s unit appropriateness, and that its
primary purpose has always been to deny these employees their right to
representation. Consequently, its latest determination was unreasonable and
unlawful.

34
c. 	The Hospital Failed to Consider Evidence that the Unit Is
Appropriate
In addition to applying its unit determination criteria in an unreasonable manner,
the Hospital failed to consider significant evidence of its history of labor relations that
favors establishment of the unit. First and foremost, the Hospital utterly disregarded
the card-check agreement in which it agreed to recognize ESC as the exclusive
representative of the unit. Secondly, the Hospital failed to consider the fact that it had
bargained with ESC in several instances after the card-check. Together, this evidence
militates strongly in favor of the establishment of the unit. The Hospital’s failure to
account for this evidence or even address it is further proof that its unit determination
was unreasonable.33
The parties’ card-check agreement stated in clear and unambiguous terms that
“[i]n the event [ESC] establishes a majority in the [card-check], the [Hospital] agrees to
recognize [ESC] as the exclusive representative for the [Laboratory Unit].” The First
Proposed Decision concluded that this provision did not constitute a waiver of the
Hospital’s opportunity to determine the appropriateness of the unit; thus followed the
first order remanding the matter for a unit determination under the Hospital’s local
rules.34 However, in conducting both the first determination and the one now before
us, the Hospital never acknowledged its agreement to recognize ESC as the exclusive
________________________
33 Ignoring this evidence is particularly egregious as the Hospital’s analysis of
the history of labor relations relies on a lack of evidence viz. no history of separate
representation and no precedent for bargaining with half the lab independently.
34 Since no party took exception to the First Proposed Decision, that conclusion
is not precedential. We therefore take no position on the correctness of the ALJ’s
legal analysis.

35
representative of the employees in the unit. One should expect that a prior agreement
to recognize ESC as the exclusive representative of the putative bargaining unit would
at least factor into a determination of that unit’s appropriateness for collective
bargaining purposes, even if only to explain the agreement’s relative weight in the
overall analysis. But instead, the Hospital simply ignored its agreement. As explained
ante, we conclude that the Hospital’s failure to account for the card-check agreement
was an abuse of discretion and renders its unit determination unreasonable.
Indeed, the card-check agreement tips the balance strongly in favor the unit’s
appropriateness. According to the plain terms of the agreement, the Hospital
promised to recognize ESC upon a showing of majority support. The agreement
contains a description of the unit along with an attached list of all employees in the
unit. The Hospital’s promise to recognize ESC as the exclusive representative
necessarily implies a promise to bargain. That the Hospital itself made this promise is
strong evidence that the unit is appropriate for collective bargaining purposes. Thus,
not only are the Hospital’s arguments opposing the unit unavailing, the Hospital’s own
promise to bargain supports the establishment of the unit. The Hospital was not free
to ignore this promise in its determination.
This is not all. As recounted in the First Proposed Decision, the Hospital did in
fact take actions consistent with an intent to voluntarily recognize ESC after the card-
check when it permitted an ESC representative to appear on behalf of and represent a
unit employee during a disciplinary investigation. (See Capistrano Unified School
District (2015) PERB Decision No. 2440, generally [public employers must permit the
recognized employee organization to represent its members during investigatory

36
interviews].) Moreover, as the Hospital admits in its answer to the first complaint, it
furnished information to ESC in response to ESC’s requests.35 (See City of Burbank
(2008) PERB Decision No. 1988-M [a recognized employee organization is entitled to
all information that is necessary and relevant to discharging its duty to represent unit
employees].) Thus, whether or not the card-check agreement constituted a waiver of
its opportunity to contest the unit’s appropriateness, the Hospital’s decision to deal
with and treat ESC as the exclusive representative is palpable proof of the unit’s
appropriateness.
Taken together, the Hospital’s agreement to recognize ESC and its voluntary
decision to deal with ESC as the recognized employee organization strongly weigh in
favor of the establishment of the unit. We highlight this evidence in order to illustrate
the unreasonableness of the Hospital’s latest determination and to make clear our
reasons for setting that determination aside.
The Hospital has now had three separate opportunities to reasonably apply its
own rule in assessing ESC’s proposed unit; it has failed to do so in each instance. In
view of the Hospital’s history with ESC, and its own clearly demonstrated self-interest
in the result, a reasonable interpretation of Regulation 2 cannot fail to acknowledge
that the local rule must be applied consistent with and in consideration of the rights
guaranteed by the MMBA. The evidence weighs in favor of the unit’s appropriateness,
and the Hospital’s determination does not withstand scrutiny. Therefore the Hospital
________________________
35 The Hospital appears to have provided ESC with sensitive employee
information, like disciplinary records, which would only be released to an exclusive
representative.

37
unreasonably withheld recognition and unlawfully applied its local rules, in violation of
the MMBA.
REMEDY
The Hospital also challenges PERB’s authority to institute a remedy, and
specifically its authority to order the Hospital to recognize ESC and commence
bargaining. The Legislature has delegated to PERB broad authority to effectuate the
remedies it deems necessary to fulfill the purposes of the MMBA. (MMBA, §§ 3509,
subd. (b), 3510; City of San Diego (2015) PERB Decision No. 2464-M, p. 42, affirmed
sub nom. Boling v. PERB (2018) 5 Cal.5th 898, 920, rehearing denied (Oct. 10, 2018);
Mt. San Antonio Cmty. Coll. District v. Public Employment Relations Board (1989) 210
Cal.App.3d 178, 189-190.) MMBA section 3509 subdivision (b) authorizes PERB to
order “the appropriate remedy necessary to effectuate the purposes of this chapter.”
(MMBA, § 3509, subd. (b); Omnitrans (2010) PERB Decision No. 2143-M, p. 8.) The
Board cannot ignore, and the ALJ was right to consider, the Hospital’s repeated failure
to apply its own rule reasonably, resulting in an “exhaustive history of litigating” similar
issues.36
This same petition for recognition has now been before an ALJ on three
occasions, and in each instance the ALJ found the Hospital’s conduct unlawful.
Indeed, the first proposed decision ordered the Hospital to cease and desist its failure
“to recognize [ESC] as the Recognized Employee Organization of the proposed unit of
________________________
36 The dissent claims that we are punishing the Hospital by putting an end to its
five-year flight from its legal obligations. We do not seek to punish the Hospital; we
seek to vindicate the rights the MMBA guarantees to these public employees and their
employee organization.

38
Laboratory Employees,” an order with which it has never complied.37 It may be
common among agencies subject to the MMBA for the final decision on representation
issues to be made by the local agency. (See Zerger, ed. (2nd ed. 2019) California
Public Sector Labor Relations § 4.46.) However, where, as here, the employer has
over the course of five years repeatedly refused to reasonably apply its own rules in
order to deny a group of employees representation and an opportunity to bargain, it is
well within PERB’s broad jurisdiction to consider the specific circumstances and to
order a conclusive resolution.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record
in this case, it is found that the Salinas Valley Memorial Hospital District (Hospital)
violated the Meyers-Milias-Brown Act (Act). The Hospital unreasonably withheld
recognition of International Federation of Professional and Technical Engineers, Local
20 (Engineers and Scientists of California) (ESC) as the exclusive representative of a
proposed unit of Laboratory employees, by unreasonably enforcing its local rule as it
pertained to unit determinations. These actions violated section 3507, subdivision (c),
and Public Employment Relations Board (PERB or Board) Regulation 32603,
subdivision (g). (Cal. Code of Regs., tit. 8, § 31001 et seq.). By this conduct, the
Hospital also interfered with the right of employees to participate in the activities of an
employee organization of their own choosing, in violation of Government Code
section 3506 and PERB Regulation 32603, subdivision (a), and denied ESC its right to
________________________
37 The Hospital admitted as much in its response to the OSC, insisting the first
remedial order did not actually require it to cease and desist its failure to recognize
ESC.

39
represent employees in their employment relations with a public agency, in violation of
Government Code section 3503 and PERB Regulation 32603, subdivision (b). All other
allegations are dismissed.
Pursuant to MMBA section 3509, subdivision (a), it hereby is ORDERED that
the Hospital, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unreasonably applying Regulation 2 of the Hospital’s employer-
employee relations ordinance regarding unit appropriateness.
2. 	Unreasonably withholding recognition of ESC as the exclusive
representative of the proposed unit of Laboratory employees.
3. 	Interfering with bargaining unit members’ right to participate in the
activities of an employee organization of their own choosing.
4. 	Denying ESC its right to represent employees in their employment
relations with the Hospital.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind the June 27, 2018, unit determination decision and denial
of ESC’s request for recognition of the proposed unit of Laboratory employees.
2. 	Grant ESC’s petition for recognition, and proceed to meet and
confer over terms and conditions of employment upon request.
3. 	Within 10 workdays of the service of a final decision in this matter,
post at all work locations in the Hospital, where notices to employees customarily are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be
signed by an authorized agent of the Hospital, indicating that the Hospital will comply

40
with the terms of this Order. Such posting shall be maintained for a period of 30
consecutive workdays. In addition to the physical posting of notices, notice shall be
posted by electronic message, intranet, internet site and other electronic means
customarily used by the Hospital to communicate with its employees in the bargaining
unit proposed to be represented by ESC. Reasonable steps shall be taken to ensure
that the Notice is not reduced in size, altered, defaced or covered with any other
material. 	(City of Sacramento (2013) PERB Decision No. 2351-M.)
4. 	Within 30 workdays of service of a final decision in this matter,
notify the General Counsel of PERB, or his or her designee, in writing of the steps
taken to comply with the terms of this Order. Continue to report in writing to the
General Counsel, or his or her designee, periodically thereafter as directed. All
reports regarding compliance with this Order shall be served concurrently on ESC.
Member Banks joined in this Decision.
Member Shiners’ dissent begins on p. 41

41
SHINERS, Member, dissenting: This case arises from a determination by the
Salinas Valley Memorial Hospital District (Hospital) that a proposed bargaining unit of
laboratory employees petitioned for by the International Federation of Professional
and Technical Engineers, Local 20 (Engineers and Scientists of California) (ESC) was
not an appropriate unit for collective bargaining. The complaint issued by PERB’s
Office of the General Counsel (OGC) in this case alleges, in pertinent part, that the
Hospital’s unit determination violated the Meyers-Milias-Brown Act (MMBA or Act)
because it was inconsistent with the Hospital’s employer-employee relations
ordinance (ERO). Following an evidentiary hearing, the administrative law judge (ALJ)
concluded the Hospital violated the MMBA as alleged in the complaint.
Under long-established precedent, PERB must defer to a public agency’s
reasonable unit determination, even if it would reach a different result on the same
facts. Applying that standard to the factual record developed at the hearing in this
case, I would defer to the Hospital’s unit determination, and dismiss the complaint and
underlying unfair practice charge.
The majority, in contrast, finds the Hospital abused its discretion because the
determination was the product of the Hospital’s bad faith conduct toward ESC—an
issue not litigated at the hearing. The majority then proceeds to conduct its own unit
determination analysis that goes far beyond traditional unit determination criteria. I
decline to join my colleagues in their unprecedented grafting of an intent consideration
onto the long-standing objective test for determining when a public agency has acted
reasonably regarding its local rules, simply to allow PERB to overturn a unit

42
determination with which it disagrees. Because I cannot join in the majority’s
unwarranted departure from established law, I dissent.
A. 	The Hospital’s Unit Determination Was Reasonable and Must be Upheld
The majority finds the Hospital unlawfully withheld recognition from ESC by
unreasonably applying its local rule to reach its unit determination. In so finding, the
majority departs from existing precedent by adding an entirely new—and in this case
dispositive—intent consideration in determining whether a public agency’s application
of its local rules was reasonable. Further, the majority’s conclusion that the Hospital
improperly applied the unit determination criteria is wrong, as well as inconsistent with
the governing legal standard.
1. 	Legal Standard for Determining the Reasonableness of a Public
Agency’s Unit Determination
The MMBA allows public agencies like the Hospital to adopt “reasonable rules
and regulations . . . for the administration of employer-employee relations.” (MMBA,
§ 3507, subd. (a).) Such rules may include criteria for determining what constitutes
“an appropriate unit” of employees for collective bargaining purposes. (MMBA,
§ 3507, subd. (a)(4); City of Glendale (2007) PERB Order No. Ad-361-M, p. 4.)
“The power reserved to local agencies to adopt rules and regulations was
intended to permit supplementary local regulations which are consistent with, and
effectuate the declared purposes of, the statute as a whole.” (International
Brotherhood of Electrical Workers, Local Union 1245 v. City of Gridley (1983) 34
Cal.3d 191, 202, internal quotations and citation omitted.) “A local public agency
employer may not adopt or enforce a local rule that is contrary to or frustrates the
declared policies and purposes of the MMBA.” (Oak Valley Hospital District (2018)

43
PERB Decision No. 2583-M, p. 9.) Thus, a public agency’s local rule is “reasonable”
under the Act unless it “abridges the exercise of a fundamental right, or frustrates the
fulfillment of an affirmative duty, prescribed by the MMBA.” (County of Monterey
(2004) PERB Decision No. 1663-M, , adopting proposed decision at pp. 28-29; see
International Federation of Professional & Technical Engineers v. City & County of
San Francisco (2000) 79 Cal.App.4th 1300, 1311 [a local rule is unreasonable when it
violates a standard set by the MMBA that “cannot be varied by local rules or
regulations and is jurisdictionally exclusive within its field”].)
Here, the Hospital adopted a local rule, Regulation 2, for determining
appropriate bargaining units. The complaint does not allege that Regulation 2 is
unreasonable on its face. Rather, the issue in this case is whether the Hospital
applied Regulation 2 to ESC’s representation petition in a reasonable manner.
As we recently affirmed:
“PERB and judicial authority requires that, when evaluating
the reasonableness of a public agency’s unit determination
made pursuant to a local rule, the party challenging the unit
determination bears the burden of demonstrating that the
decision was not reasonable. (Organization of Deputy
Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331,
338.) Thus, if reasonable minds could differ over the
appropriateness of a determination, PERB should not
substitute its judgment for that of the local agency. (Id. at
pp. 338-339; see also County of Riverside (2010) PERB
Decision No. 2119-M, p. 13; City of Glendale (2007) PERB
Order No. Ad-361-M, p. 4; Alameda County Assistant
Public Defenders Assn. v. County of Alameda (1973) 33
Cal.App.3d 825, 830.)”
(Santa Clara Valley Water District (2017) PERB Decision No. 2531-M, p. 11.)

44
Although PERB has stated these legal rules in many cases, the Board has
never clearly articulated a standard for how they govern review of a local agency’s unit
determination. Binding California appellate court decisions, however, elucidate the
proper standard.38
In Organization of Deputy Sheriffs v. County of San Mateo (1975) 48
Cal.App.3d 331 (County of San Mateo) the court affirmed the county’s decision to
place management employees of the sheriff’s department in a separate bargaining
unit from the department’s non-management employees. (Id. at p. 339.) In reaching
this conclusion, the court applied the general rule that legislative actions by a local
agency’s governing board “are presumed to be reasonable in the absence of proof to
the contrary.” (Id. at p. 338.) The court then explained: “If reasonable minds may be
divided as to the wisdom of the board’s action, its action is conclusive and courts
should not substitute their judgment for that of the board.” (Id. at pp. 338-339.)
In United Clerical Employees v. County of Contra Costa (1977) 76 Cal.App.3d
119 (County of Contra Costa), the court applied the “reasonableness” rule from
County of San Mateo to conclude that the county’s local rule deeming supervisors to
be “management employees” was reasonable.39 (Id. at pp. 127-129.) In so
concluding, the court observed that showing “a different regulatory definition of
________________________
38 The MMBA provides that “[t]he provisions of this chapter shall be interpreted
and applied by the board in a manner consistent with and in accordance with judicial
interpretations of this chapter.” (MMBA, § 3510, subd. (a).)
39 MMBA Section 3507.5 allows public agencies to “adopt reasonable rules and
regulations providing for designation of the management and confidential employees
of the public agency.”

45
‘management employee’ would have been equally reasonable” would not have been
sufficient for the court to find the county’s local rule unreasonable. (Id. at p. 129.) The
court then applied a substantial evidence standard of review to the county’s
application of the local rule to particular employees. (Id. at pp. 130-131.)
In Covina-Azusa Fire Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48
(City of Azusa), the court found the evidentiary record insufficient to determine
whether the city’s decision to exclude fire captains from the firefighters’ bargaining unit
was reasonable. (Id. at p. 61.) Remanding the matter to the trial court, the appellate
court rejected the union’s argument that the trial court “should determine on its own
review of the evidence what the appropriate unit is.” (Ibid.) The court then stated:
“The city’s determination may be upset by the courts only for an ‘abuse of discretion,’
applying the traditional tests associated with a mandate action brought under Code of
Civil Procedure section 1085.” (Ibid.)
As this binding judicial precedent instructs, the standard for reviewing a public
agency’s unit determination is one of deference to the public agency. This comports
with PERB’s longstanding decisional law holding that a public agency’s discretion in
representation matters governed by its local rules is limited only by the requirement
that its conduct not “abridge[] the exercise of a fundamental right, or frustrate[] the
fulfillment of an affirmative duty, prescribed by the MMBA.” (County of Monterey,
supra, PERB Decision No. 1663-M, adopting proposed decision at pp. 28-29.)
Harmonizing PERB’s decisional law with California appellate court decisions the
MMBA compels PERB to follow, it is appropriate to apply an abuse of discretion
standard under which the public agency’s unit determination is reasonable unless the

46
challenging party proves: (1) the public agency applied the wrong law, (2) its factual
findings are not supported by substantial evidence in the record, or (3) its weighing of
interrelated factors “exceed[ed] the bounds of reason or contravene[d] the
uncontradicted evidence.” (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th
301, 316 (County of Kern); see International Brotherhood of Electrical Workers v.
Aubry (1996) 42 Cal.App.4th 861, 869-870 (Aubry) [adopting substantial evidence
standard for review of transit district unit determinations made by the Director of the
Department of Industrial Relations].)
The majority finds an abuse of discretion here based on the Hospital’s conduct
leading up to the unit determination. The majority’s thesis appears to be that a public
agency’s intent to deprive employees of statutory rights, as shown by circumstances
surrounding the agency’s application of its local rule, takes precedence over whether
the agency’s application of the rule objectively conflicts with the MMBA. The majority
cites no authority for this new motive element because there is none.
The only time the Board has addressed the motive issue, it held “there is no
requirement of intent when assessing the reasonableness of a [local] rule.” (City &
County of San Francisco (2017) PERB Decision No. 2540-M, p. 23.)40 In City &
________________________
40 Although County of Monterey, supra, PERB Decision No. 1663-M, which City
& County of San Francisco cites for this proposition, explicitly references the
irrelevance of intent in discussing domination of an employee organization, the
concept is implicitly embraced in its subsequent analysis of the as-applied challenge
to the County’s application of its local rule. There, the decision focuses solely on the
objective effect of the alleged unreasonable application on rights granted by the
MMBA. (Id., adopting proposed decision at pp. 27-30.) The analysis in this seminal
case contains no discussion of the County’s motivation or intent in applying its local
rule, and we are aware of no other PERB decision so attempting to alter this long-
established objective standard.

47
County of San Francisco, we found the proposed decision’s conclusion that the local
rule “was intended to be ‘anti-labor’” irrelevant to the reasonableness analysis and
declined to rely on it. (Id. at p. 23, fn. 14.) As the majority points out, City & County of
San Francisco involved a facial challenge to a local rule. But there is no reason to
draw a distinction between facial challenges and as-applied challenges. A public
agency’s intent would be just as relevant when it adopts a local rule as when it applies
the rule. Indeed, a public agency’s unlawful intent in adopting a local rule could
impact employee rights more than unlawful intent in applying that rule in a specific
situation. Yet the Board has never held intent should be considered in facial
challenges, and there is no more compelling reason to do so in as-applied challenges.
The majority insists that consideration of intent or motive is necessary here to
avoid “willfully disregard[ing] the circumstances surrounding [the Hospital’s]
application of Regulation 2.” Be that as it may, the controlling legal standard does not
include the public agency’s intent as a relevant consideration in determining whether
the agency’s application of its local rule is reasonable. (City & County of San
Francisco, supra, PERB Decision No. 2540-M, p. 23.) Rather, our review is limited to
determining whether, as an objective matter, the specific application of the local rule is
inconsistent with the MMBA. (Santa Clara Valley Water District, supra, PERB
Decision No. 2531-M, p. 11.) No precedent supports deviating from that long-standing
rule based on the public agency’s subjective intent in applying its local rule in a
particular way.
Additionally, the majority suggests that public agency unit determinations
should be subject to heightened scrutiny because the agency has “a vested interest in

48
the outcome.” This observation was first raised by Justice (then-Professor) Joseph
Grodin in his early commentary on the MMBA, Public Employee Bargaining in
California: The Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719,
741-742. Yet, despite citing Professor Grodin’s article for various propositions, the
courts of appeal adopted a deferential standard of review for public agency unit
determinations. (Aubry, supra, 42 Cal.App.4th at p. 869; City of Azusa, supra, 81
Cal.App.3d at p. 61; County of Contra Costa, supra, 76 Cal.App.3d at pp. 129-131.)
When the Legislature gave PERB jurisdiction over the MMBA in 2001, it did not modify
the existing statutory scheme to give PERB a greater role in reviewing public agency
unit determinations than the courts had performed.41 Of particular importance, as part
of the transfer of jurisdiction the Legislature enacted MMBA section 3510, subdivision
(a), which explicitly requires PERB to interpret and apply the MMBA consistent with
court decisions. Thus, despite the criticism of allowing public agencies to determine
appropriate bargaining units, the Legislature explicitly preserved the existing standard
________________________
41 In contrast, other statutes under PERB’s jurisdiction—the Ralph C. Dills Act
(Dills Act) (§ 3512 et seq.), Educational Employment Relations Act (EERA) (§ 3540 et
seq.), Higher Education Employer-Employee Relations Act (HEERA) (§ 3560 et seq.),
Judicial Council Employer-Employee Relations Act (JCEERA) (§ 3524.50 et seq.), and
Transit Employer-Employee Relations Act (TEERA) (Public Util. Code (PUC), § 99560
et seq.)—grant PERB plenary authority to determine appropriate bargaining units in
accordance with specific unit determination criteria. (§§ 3521 (Dills Act); 3544.7,
subd. (a); 3545 (EERA); 3575-3577, subd. (a), 3579 (HEERA); 3524.77 (JCEERA);
PUC § 99565 (TEERA).) Under those statutes PERB is afforded great flexibility in
weighing and balancing the statutory criteria. (E.g., Unit Determination for Technical
Employees of the University of California (1982) PERB Decision No. 241-H; Unit
Determination for the State of California (1979) PERB Decision No. 110-S; Antioch
Unified School District (1977) EERB Decision No. 37.) (Before January 1, 1978,
PERB was known as the Educational Employment Relations Board or EERB.)

49
of review applicable to those determinations. (See Gutierrez v. Carmax Auto
Superstores California (2018) 19 Cal.App.5th 1234, 1254 [“when the Legislature
reenacts the statute without changing the interpretation given to the statute by the
courts, the Legislature is presumed to have been aware of, and acquiesced in, the
courts’ construction of that statute”].) Nor has the Legislature changed that standard
in any of the subsequent amendments to the Act. (See People v. Scott (1987) 194
Cal.App.3d 550, 554 [“The amendment of a statute ordinarily has the legal effect of
reenacting (thus enacting) the statute as amended, including its unamended
portions.”].) Given this history, I cannot join my colleagues’ departure from the long-
standing objective standard of review to allow greater scrutiny of a unit determination
when PERB suspects it was the product of improper motivation.
2. 	Reasonableness of the Hospital’s Unit Determination
“[T]he party challenging the unit determination bears the burden of
demonstrating that the decision was not reasonable.” (Santa Clara Valley Water
District, supra, PERB Decision No. 2531-M, p. 11.) On the record before us, I would
find that ESC has not met its burden to prove the Hospital’s unit determination is
unreasonable under the abuse of discretion standard.
a. 	The Hospital’s Determination Applied the Correct Law
In making its determination, the Hospital assessed the three factors in
Regulation 2—the Hospital’s organizational structure, possible proliferation of units,
and history of labor relations—as well as the community of interest among employees
in the proposed unit. These are common factors used to determine whether a
proposed bargaining unit is appropriate. (See, e.g., Santa Clara County District
Attorney Investigators Association v. County of Santa Clara (1975) 51 Cal.App.3d 255,

50
260 (County of Santa Clara) [appropriate unit factors include “whether there is a
sufficient ‘community of interest’ among those placed within the unit, the employer’s
authority to bargain effectively at the level of the unit, and the effect of a unit on the
efficient operation of the public service”]; County of San Mateo, supra, 48 Cal.App.3d
at p. 339, fn. 6 [appropriate unit factors include “community of interests; history of
bargaining; desires of employees; nature and organization of business; public interest,
etc.”]; City of Glendale, supra, PERB Order No. Ad-361-M, p. 2, fn. 2 [local rule’s unit
determination criteria included “community of interest of the employees,” “history of
employee relations in the unit,” and “[t]he effect of the unit on the efficient operations
of the public service and sound employee relations”].) Thus, the Hospital applied the
correct legal standard.
In fact, the Hospital applied the legal standard articulated at length by the ALJ
in the proposed decision in Case No. SF-CE-1391-M, which involved this same
petition. By penalizing the Hospital for following that decision, the majority sends the
message that a party acts in accordance with a final and binding PERB decision at its
own peril. This leaves a party in the Hospital’s position with a choice between two
equally undesirable alternatives: (1) deviate from the decision and risk being found
out of compliance, or (2) follow the decision and risk being found to have committed
an unfair practice. Such “catch-22” situations are to be avoided in a fair adjudicative
system.42 (Ung v. Koehler (2005) 135 Cal.App.4th 186, 204; In re Steven H. (2001) 86
Cal.App.4th 1023, 1031.)
________________________
42 Merriam-Webster defines “catch-22” as “a problematic situation for which the
only solution is denied by a circumstance inherent in the problem or by a rule” or,

51
b. 	The Hospital’s Determination Was Supported by Substantial
Evidence
In applying the substantial evidence standard, we must examine all relevant
evidence in the record, contradicted or uncontradicted, to determine whether it
adequately supports the public agency’s findings. (Doe v. University of Southern
California (2016) 246 Cal.App.4th 221, 248-249 (Doe).) “[W]e do not reweigh the
evidence[, and i]f there is a plausible basis for the [public agency’s] factual decisions,
we are not concerned that contrary findings may seem to us equally reasonable, or
even more so.” (Boling v. PERB (2018) 5 Cal.5th 898, 912.) The standard of review
is satisfied if the record contains “evidence of ponderable legal significance, evidence
that is reasonable, credible and of solid value,” from which a reasonable mind could
make the same finding as the public agency. (Doe, supra, 246 Cal.App.4th at p. 249;
Vessey & Co. v. Agricultural Labor Relations Bd. (1989) 210 Cal.App.3d 629, 642.)
The Hospital’s unit determination contains factual findings about the duties and
working conditions of employees in the proposed unit, the relationship and interaction
of those employees with other employees inside and outside of the laboratory, the
hospital’s organizational structure, and the history of representation of the laboratory
employees. ESC did not challenge these factual findings before the ALJ, nor does it
challenge them on appeal. The majority does not identify any findings that are
unsupported by the record, and my own review reveals none. Accordingly, the
________________________
alternatively, “a situation presenting two equally undesirable alternatives.” (“catch-22.”
Merriam-Webster https://www.merriam-webster.com (last updated 15 Sept.
2019). The term was coined by Joseph Heller in his 1961 novel Catch-22, in which an
army psychiatrist explains that any pilot requesting an insanity evaluation to escape
combat duty demonstrates his sanity by making the request.

52
Hospital’s unit determination is supported by substantial—and in fact,
uncontradicted—evidence.
c. 	The Hospital Reasonably Applied the Appropriate Criteria to the
Evidence
In analyzing this factor, we must determine whether, given the established
evidence, the public agency’s decision falls within the permissible range of options
under the applicable legal criteria. (Bank of America, N.A. v. Superior Court (2013)
212 Cal.App.4th 1076, 1089.) As prior decisions have recognized, unit determination
“involves a judgmental assessment of a number of relevant criteria” (Aubry, supra,
42 Cal.App.4th at p. 870), and thus “criteria may receive different weight and
consideration in different factual settings” (Regents of the University of California
(2015) PERB Decision No. 2422-H, pp. 5-6).
The Hospital’s written determination, as described in the majority opinion,
shows the Hospital considered the evidence relevant to each criterion and balanced
the criteria in this specific factual setting to reach its conclusion that the proposed unit
of laboratory employees is not appropriate. While reasonable minds may disagree
about how the applicable criteria should be balanced in this case (as shown by the 3-2
vote of the Hospital’s Board of Directors on the unit determination decision, as well as
the disagreement among this Board panel), the record does not show the Hospital’s
determination was arbitrary or contrary to the evidence. (County of Kern, supra,
246 Cal.App.4th at p. 316; compare, e.g., Reinbold v. City of Santa Monica (1976)
63 Cal.App.3d 433, 441 [unreasonable to exclude police chief from management
bargaining unit that included assistant police chief]; Alameda County Assistant Public
Defenders Association v. County of Alameda (1973) 33 Cal.App.3d 825, 832

53
[unreasonable to place public defenders in general professional bargaining unit when
they shared little community of interest with other unit employees].) Accordingly, ESC
has not met its burden to prove the Hospital’s determination is unreasonable.
d. 	The Majority’s Objections to the Unit Determination
The majority raises several objections to how the Hospital applied the unit
determination criteria. Although under the proper deferential standard of review mere
disagreement with how the public agency applied the relevant criteria is not enough to
overturn a unit determination (County of Contra Costa, supra, 76 Cal.App.3d at p. 129;
Santa Clara Valley Water District, supra, PERB Decision No. 2531-M, p. 11),
I nonetheless address the majority’s objections, which in my view lack merit.
First, the majority contends the Hospital gave too much weight to the
proliferation of units criterion. Specifically, the majority recognizes proliferation as a
concern when a group of represented employees seeks to sever from an existing
bargaining unit, but downplays the concern when a residual group of unrepresented
employees seeks to create a new unit. Yet in establishing initial bargaining units for
the University of California, the Board established a single unit of residual health care
professionals specifically to avoid a proliferation of units along patient care discipline
lines. (Unit Determination for Professional Patient Care Employees of the University
of California (1982) PERB Decision No. 248-H, pp. 10-11.) It therefore was
appropriate for the Hospital to give potential unit proliferation significant weight in its
unit determination analysis.
Second, contrary to the majority’s conjecture, the evidence in this case does
not establish that the petitioned-for employees would remain unrepresented forever if

54
ESC’s petition is denied. The memorandum of understanding between the Hospital
and the National Union of Healthcare Workers (NUHW) excludes the petitioned-for
employees from the NUHW unit. At hearing, NUHW organizer Grant Hill testified that
once ESC began its organizing campaign, NUHW chose not to interfere by attempting
to represent the petitioned-for employees. This evidence leaves open the possibility
that NUHW may attempt to represent the petitioned-for employees in the future, or
that the Hospital may find some other unit configuration including those employees to
be appropriate.43 Thus, the majority’s finding that the petitioned-for employees will
never have another opportunity to be represented is speculative.
The majority also improperly conflates unit determination with employees’
choice of representative. As the court observed in County of Santa Clara: “A clear
distinction must be drawn between public employees’ rights to organize and their right
to separate bargaining units. As this court stated in Organization of Deputy Sheriffs
[citation]: ‘We have noted that MMB[A] differentiates between the designation of
appropriate bargaining units and the formation of employee organizations.’” (County
of Santa Clara, supra, 51 Cal.App.3d at p. 264.) Likewise, PERB has recognized that
“[w]hile employees have the right to choose which employee organization, if any, will
represent them in their employment relations, they have no right to choose the
bargaining unit in which their classification or position is placed.” (Regents of the
University of California (2017) PERB Order No. Ad-453-H, p. 9; County of Riverside
(2012) PERB Decision No. 2280-M, p. 9; see also San Diego Metropolitan Transit
________________________
43 Indeed, in the proposed decision in this case the ALJ observed that “nothing
prevents the hospital from establishing a unit of all residual unrepresented employees
through section 3507 rulemaking.”

55
System (2019) PERB Decision No. 2667-P, pp. 33-34 [employee preference is just
one factor to be considered in a unit determination].) Indeed, PERB has long
recognized that in the public sector employee choice may be subordinated “to the
overriding policy of avoiding proliferation of bargaining units.” (Regents of the
University of California (2010) PERB Decision No. 2107-H, pp. 23-24; San Joaquin
Regional Transit District (2019) PERB Decision No. 2650-P, pp. 13-14; Los Angeles
Unified School District (1998) PERB Decision No. 1267, pp. 5-6 and adopting
proposed decision at pp. 64-65.) The majority’s conflation of these two concepts not
only is contrary to precedent, but also exposes a public agency to liability any time it
determines a proposed unit of unrepresented employees is not appropriate.
Third, the majority finds employees within the proposed unit share a community
of interest with each other and that the disparity of interest with employees outside the
proposed unit does not weigh against finding the unit appropriate. On the one hand,
the petitioned-for employees work in proximity to one another, share some common
supervision, have frequent contact, and perform similar functions. On the other hand,
they also work close to and have frequent contact with employees outside the
proposed unit and share supervision with those employees. If this case was before us
under a statute that grants PERB plenary authority to determine appropriate
bargaining units, I might agree with the majority that the facts establish a sufficient
community of interest. But under the governing deferential standard of review, I find
there is substantial evidence to support the Hospital’s determination that the
community of interest is not strong enough to outweigh other criteria pointing away
from an appropriate unit. (See, e.g., St. HOPE Public Schools (2018) PERB Order

56
No. Ad-472, pp. 5-8 [finding “weaker than average” community of interest did not
outweigh extent of employee organization criterion].)
Finally, the majority faults the Hospital for failing to consider, as part of its
analysis of the history of labor relations criterion, the November 2014 card check
agreement and the Hospital’s provision of information to ESC in December 2014 about
a disciplinary matter.44 Given that no prior PERB or court of appeal decision involving
a unit determination has ever suggested such evidence is relevant in determining an
appropriate unit, it is not surprising the Hospital did not address it. Thus, I find no
error in the Hospital’s failure to account in its unit determination for the card check
agreement or response to ESC’s information request. In fact, this is not really a unit
determination issue at all but simply another iteration of the majority’s position that the
Hospital’s perceived bad faith conduct renders the unit determination unreasonable.
Additionally, the majority’s reliance on the card check agreement and the
Hospital’s provision of information to ESC—and its exploration of the Hospital’s intent
in general—is troubling from a due process perspective. Intent has never been an
element or relevant factor in determining whether a public agency has reasonably
applied its local rule. The complaint in this case did not allege any violation that would
implicate the Hospital’s intent. Nor did ESC indicate in its opening statement at the
________________________
44 While the majority claims to “take no position on the correctness of the ALJ’s
legal analysis” in Case No. SF-CE-1287-M regarding the card check agreement, it
nonetheless finds the agreement constituted a “promise to bargain” with ESC, thereby
implying the Hospital agreed to recognize the proposed unit “as is.” Yet the ALJ in
Case No. SF-CE-1287-M did not order the Hospital to find the unit appropriate or to
meet and confer with ESC, which would have been the expected means to enforce the
Hospital’s purported promise.

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hearing or its questioning of witnesses that it considered the Hospital’s motive to be
relevant to the alleged violation in this case. The record thus does not show the
Hospital was on notice that its intent in rendering its unit determination would be
litigated in this proceeding. This lack of notice raises the concern I expressed in my
concurrence in City of Davis (2018) PERB Decision No. 2582-M, viz., that a violation
may be found based on evidence the respondent did not know would be used to
establish its intent, in violation of its due process right to “notice of ‘the facts and
conduct alleged to constitute an unfair practice’ (PERB Reg. 32615, subd. (a)(5).” (Id.
at p. 37, fn. 19.)
B. 	Conclusion
In its zeal to punish the Hospital for what they perceive as bad faith conduct
toward ESC, the majority engages in unprecedented legal contortions to justify
overturning the Hospital’s unit determination. Specifically, the majority creates from
whole cloth a new rule that a public agency’s intent in applying its local rule in a
particular way—rather than the objective effect of that application—is a relevant
consideration. In this case, it turns out to be the dispositive consideration. Despite
the majority’s assurance that this is a unique case, I am concerned it is the camel’s
nose under the tent toward allowing PERB to sidestep the well-established deferential
standard of review whenever it disagrees with a public agency’s unit determination.
While I am mindful of my colleagues’ concerns about the Hospital’s conduct
regarding ESC’s petition over the past five years, I nonetheless feel constrained to
apply existing precedent in this case. On the record before us, the Hospital’s unit
determination is not in conflict with the language or purposes of the MMBA, nor does it
“exceed the bounds of reason” under the applicable legal criteria. Because the

58
Hospital’s determination is reasonable under the deferential standard of review
mandated by controlling precedent, I would dismiss the complaint and underlying
unfair practice charge.

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-1620-M, in which all parties
had the right to participate, it has been found that the Salinas Valley Memorial Hospital
District violated the Meyers-Milias-Brown Act (MMBA or Act). The Hospital
unreasonably withheld recognition of International Federation of Professional and
Technical Engineers, Local 20 (Engineers and Scientists of California) (ESC) as the
exclusive representative of a proposed unit of Laboratory employees by unreasonably
applying its local rule on unit determinations. This action violated section 3507,
subdivision (c), and Public Employment Relations Board (PERB or Board) Regulation
32603, subdivision (g). (Cal. Code of Regs., tit. 8, sec. 31001 et seq.). By this
conduct, the Hospital also interfered with the right of employees to participate in the
activities of an employee organization of their own choosing, in violation of
Government Code section 3506 and PERB Regulation 32603, subdivision (a), and
denied ESC its right to represent employees in their employment relations with a
public agency, in violation of Government Code section 3503 and PERB Regulation
32603, subdivision (b).
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Unreasonably applying Regulation 2 of the Hospital’s employer-
employee relations ordinance regarding unit appropriateness.
2. 	Unreasonably withholding recognition of ESC as the exclusive
representative of the proposed unit of Laboratory employees.
3. 	Interfering with bargaining unit members’ right to participate in the
activities of an employee organization of their own choosing.
4. 	Denying ESC its right to represent employees in their employment
relations with the Hospital.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the June 27, 2018, unit determination decision and denial
of ESC’s request for recognition of the proposed unit of Laboratory employees.
2. 	Grant ESC’s petition for recognition, and proceed to meet and
confer over terms and conditions of employment upon request.

2
Dated: _____________________ 	Salinas Valley Memorial Hospital District
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.