County of Santa Clara (PERB 2820M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
REGISTERED NURSES PROFESSIONAL
ASSOCIATION,
Charging Party,
v.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-1872-M
PERB Decision No. 2820-M
May 12, 2022
Appearances: Weinberg, Roger & Rosenfeld by Xochitl Lopez, Attorney, for
Registered Nurses Professional Association; Mary Malysz, Deputy County Counsel,
for County of Santa Clara.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Registered Nurses Professional Association (RNPA)
from the dismissal of its unfair practice charge against County of Santa Clara. RNPA’s
charge, as amended, alleged that the County violated the Meyers-Milias-Brown Act
(MMBA) by unilaterally issuing Clinical Nurses new assignments without providing
RNPA notice and an opportunity to bargain over the decision or its effects.1 PERB’s
Office of the General Counsel (OGC) found that the new assignments were
reasonably comprehended within the nurses’ existing assignments, and therefore
1 The MMBA is codified at Government Code section 3500 et seq. Unless
otherwise indicated, all further statutory references are to the Government Code.

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dismissed the amended charge for failure to state a prima facie case.
We review OGC’s dismissal de novo. (City and County of San Francisco (2020)
PERB Decision No. 2712-M, p. 2.) At this stage of an unfair practice case, the
charging party’s burden is not to produce evidence, but merely to allege facts that, if
proven true in a subsequent hearing, would state a prima facie violation. (Ibid.) We do
not resolve conflicting factual allegations or make conclusive factual findings. (Ibid.)
Rather, we assume that the charging party’s factual allegations are true, and we view
them in the light most favorable to the charging party. (Ibid.) We therefore do not rely
on the respondent’s factual statements if they explicitly or implicitly create a material
factual conflict with charging party’s version of events, even if the respondent’s
contentions appear better supported, or more persuasive, than the charging party’s
contrary allegations. (Ibid.) We direct OGC to issue a complaint if we find one or more
contested, outcome-determinative facts (or mixed questions of law and fact), or if the
parties’ positions reveal contested, colorable legal theories. (Id. at p. 3.)2
Applying these standards to the allegations in this case, we grant RNPA’s
appeal and direct OGC to issue a complaint consistent with this decision.
FACTUAL ALLEGATIONS
The County is a public agency within the meaning of MMBA section 3501,
subdivision (c). RNPA, a recognized employee organization within the meaning of
MMBA section 3501, subdivision (b), exclusively represents the County’s registered
2 OGC must issue a complaint based on all legal theories for which the alleged
facts state a prima facie case, even if a charging party has neglected to assert one or
more colorable theories. (San Jose/Evergreen Federation of Teachers, AFT Local
6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB
Decision No. 2744, p. 23; Hartnell Community College District (2015) PERB Decision
No. 2452, pp. 53-54.)

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nurse (RN) bargaining unit. RNPA and the County are parties to a memorandum of
understanding, effective January 27, 2020, through October 29, 2023.
The RN bargaining unit includes Clinical Nurses working at Santa Clara Valley
Medical Center. Clinical Nurses primarily perform bedside nursing, which includes
monitoring individual patients’ heart rhythms by reviewing EKG or telemetry strips, as
part of caring for the “whole patient.”
The County also employs Monitor Technicians, who are in a bargaining unit
represented by Service Employees International Union Local 521. Monitor
Technicians, who are supervised by RNs, typically work in a central monitoring room
(CMR) where they simultaneously monitor EKG or telemetry strips from up to 40
patients at a time.
The County’s Nursing Standards Manual includes a telemetry policy adopted
between 2008 and 2012. The policy states:
“Patients will be placed on telemetry, monitored and
responded to in a methodical process that allows for safe
care. Daily management of telemetry patients (i.e.
completing patient assignment sheet, printing strips) will be
completed using a prescribed sequence of steps. To
ensure safe care, individual roles and responsibilities, when
applicable, will be identified in each section of the policy.
Cardiac rhythm is observed continuously by a trained
telemetry monitor technician or RN. Any significant alarms
or changes are escalated to an RN. Registered nurses can
be designated as the monitor technician if they have
completed the VMC telemetry class and competency.”
[¶] . . . [¶]
“. . . In a situation when there is no [Monitor Technician]
available, an RN who works as a telemetry nurse can work
as the [Monitor Technician].” (Emphasis supplied.)

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The gravamen of RNPA’s case consists of two allegations. RNPA first states
that, prior to the events giving rise to this case, the County did not “regularly” assign
Clinical Nurses to the CMR to watch multiple telemetry monitors for an entire shift. The
County seemingly concurs to one degree or another, alleging that it assigned nurses
to fill in for Monitor Technicians only when they were taking breaks or out sick. To the
extent there may be a difference in these factual assertions, at this stage RNPA’s
allegations control.
RNPA further alleges that around late December 2020 or early January 2021, it
learned the County had begun regularly assigning Clinical Nurses to work shifts in the
CMR that the County had previously assigned to Monitor Technicians. The County
responds to this allegation as follows: “The only change RNPA alleges is that Clinical
Nurses are now being required to watch multiple telemetry monitors at once for a whole
shift. Even if this were true (which it is not), such an assignment is reasonably
comprehended within the scope of existing job duties; therefore, RNPA cannot
demonstrate a duty to negotiate the alleged change.” (Emphasis original.)
DISCUSSION
To establish a prima facie case that a respondent employer made an unlawful
unilateral change, a charging party union that exclusively represents a bargaining unit
must prove: (1) the employer changed or deviated from the status quo; (2) the change
or deviation concerned a matter within the scope of representation; (3) the change or
deviation had a generalized effect or continuing impact on represented employees’
terms or conditions of employment; and (4) the employer reached its decision without
first providing adequate advance notice of the proposed change to the union and
bargaining in good faith over the decision, at the union’s request, until the parties

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reached an agreement or a lawful impasse. (Bellflower Unified School District (2021)
PERB Decision No. 2796, p. 9.)
Regarding the first element, there are three primary means of establishing that
an employer changed or deviated from the status quo: (1) a deviation from a written
agreement or written policy; (2) a change in established past practice; or (3) a newly
created policy or application or enforcement of existing policy in a new way.
(Bellflower Unified School District, supra, PERB Decision No. 2796, p. 10.) Here,
RNPA alleges that the County changed an established past practice or, alternatively,
created a new policy or applied or enforced an existing policy in a new way.
OGC found that RNPA failed to allege facts that would, if proven, establish that
the County materially changed nurses' assignments. We review applicable precedent
and apply that precedent to RNPA’s allegations.
I. 	Precedent Regarding Changes to Work Assignments3
If an employer changes employee assignments or duties without providing the
exclusive representative union with notice and an opportunity to meet and confer,
outside of any contractual right it may have, there are several means by which a union
can establish a unilateral change. (See Cerritos Community College District (2022)
PERB Decision No. 2819, p. 30 (Cerritos) [discussing alternate means of establishing
prima facie case].) Here, since there is no allegation that the County materially altered
nurses’ overall workload, changed performance standards, or transferred work within
3 The term “assignment” has different meanings depending on context. It can
mean an individual job duty or task, a position or post, or, as here, a set of duties an
employer requires an employee to perform on a given day. (https://www.merriam-
webster.com/dictionary/assignment#:~:text=Definition%20of%20assignment,by%20au
thority%20a%20homework%20assignment [as of May 9, 2022];
https://www.thesaurus.com/browse/assignment [as of May 9, 2022].)

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or away from the nurses’ bargaining unit, the critical question is whether the County
issued nurses new assignments that were not “reasonably comprehended” within their
existing assignment or set of duties. (Id. at pp. 30-31; Oakland Unified School District
(2003) PERB Decision No. 1544, pp. 5-8 & adopting warning letter at p. 2 (Oakland).)4
PERB precedent does not provide an exact meaning of “reasonably
comprehended.” And it is not possible to articulate a definition that anticipates every
potential future scenario. It is clear, however, that “reasonably comprehended” is an
objective standard that refers to what a reasonable employee would comprehend
based on all relevant circumstances, including, but not limited to, past practice,
training, and job descriptions. (Rio Hondo Community College District (1982) PERB
Decision No. 279, pp. 17-18 [while catchall language in job description is insufficient to
overcome evidence of contrary past practice, PERB interprets job descriptions in the
context of employees’ overall role].) For instance, the Board has found new duties
were not reasonably comprehended within an existing assignment when they required
employees to obtain additional credentialing. (Mt. San Antonio Community College
District (1983) PERB Decision No. 297, p. 11.)
Past PERB decisions have stated that if a new assignment is reasonably
comprehended within employees’ existing assignments, the new assignment is not
4 While we apply the “reasonably comprehended” standard if an employer adds
a job duty or issues a new assignment, we may apply other means to determine
materiality in other circumstances. As we noted in Cerritos, supra, PERB Decision
No. 2819, p. 30, such other contexts include, but are not limited to, changes that
impact workload or performance standards (see, e.g., County of Kern (2018) PERB
Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11), or changes that
transfer duties to other employees within the bargaining unit or outside the unit (see,
e.g., Desert Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4).

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within the scope of representation. (See, e.g., Davis Joint Unified School District
(1984) PERB Decision No. 393, p. 26.) Placing the “reasonably comprehended”
question in the scope of representation inquiry is, in part, an historical artifact. For
much of PERB’s history, Board precedent consolidated the unilateral change test into
just two elements. The first element was whether the employer implemented a change
in policy concerning a matter within the scope of representation, thereby
simultaneously asking whether the employer made a change and, if so, whether it fell
within the scope of representation. (See, e.g., Oakland, supra, PERB Decision
No. 1544, p. 5 & adopting warning letter at p. 2.) The Board now uses the four-part
test set forth ante at pp. 4-5, where change to status quo and scope of representation
are separate elements. Under the modern, four-part test, the “reasonably
comprehended” question is more integral to determining whether the employer
changed the status quo than it is to deciding whether a specified topic is a mandatory
or permissive subject of bargaining. In future unilateral change cases, Board agents
should recognize job duties and assignments as generally falling within the scope of
representation and apply the “reasonably comprehended” standard as part of
determining whether an employer changed or deviated from the status quo.5
5 While this distinction is unlikely to change the outcome in a unilateral change
case, it would matter more in a failure to bargain case arising during contract
negotiations. For instance, if a bargaining party proposes to change existing job
duties, and the other party claims that it is a permissive subject of bargaining and
refuses to negotiate, PERB must determine whether the refusing party was privileged
to do so. While Davis, supra, PERB Decision No. 393, fell into that category, its
analysis appears unsound, suggesting a party’s bargaining proposals on employee
duties could alternately qualify as mandatory or permissive depending on scant
wording changes. Notably, Cerritos, supra, PERB Decision No. 2819, disavowed any
broad reading of Davis (id., at p. 31), and we have no cause in this case to consider
whether a bargaining party can lawfully decline to bargain merely because its

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II. 	Application to RNPA’s Allegations
As the above discussion indicates, to apply the “reasonably comprehended”
standard we compare past duties or assignments to new duties or assignments,
through the eyes of a reasonable employee. Doing so here, we find there are one or
more material facts in dispute, meaning that OGC must issue a complaint and the
case must proceed to a hearing, absent settlement.
A. 	Clinical Nurses’ Past Assignments
RNPA claims that, prior to the events giving rise to this case, the County had
not regularly assigned Clinical Nurses to work full shifts in the CMR alongside or in
place of Monitor Technicians. The County responds that “it has been the consistent
practice that [nurses trained in telemetry] fill in for technicians when none are
available, i.e., on meal or rest breaks or out sick.” As noted ante, it is unclear to what
extent the County’s position conflicts with RNPA’s allegation that the County had in
the past not “regularly” assigned Clinical Nurses to work in the CMR for entire shifts.
At this stage of proceedings, we do not rely on the respondent’s responses where, as
here, they may create a material factual conflict with charging party’s allegations.
Moreover, even assuming for the sake of argument there is no dispute that Clinical
Nurses have in the past filled in for Monitor Technicians when they are on meal or rest
breaks or call out sick, this practice would not necessarily provide the County with a
defense if it thereafter began issuing Clinical Nurses assignments to fill Monitor
Technician shifts on a truly “regular” basis, viz., when Monitor Technicians are not on
breaks or out sick.
counterpart proposes to change employees’ existing duties.

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B. 	Clinical Nurses’ Alleged New Assignments
RPNA alleges that the County has deviated from an established past practice,
created a new policy, or applied an existing policy in a new way by regularly assigning
Clinical Nurses to work full Monitor Technician shifts in the CMR. As noted above, the
County denies that it began regularly assigning Clinical Nurses to work full shifts in the
CMR and, in the alternative, argues that such allegations do not state a prima facie
case. The County’s factual denial is of no import because at this stage we assume
RNPA’s allegations are correct and view them in the light most favorable to RNPA.
Nor does the County succeed in its alternative argument that, accepting
RNPA’s allegations, the changes at issue were “reasonably comprehended” within
nurses’ traditional assignments. Depending on the extent of the change (if any) that
the ultimate record in this matter reveals, we are unable to rule out the possibility that
reasonable nurses would find such a change to be a material one.
While the County points to the telemetry policy included in its Nursing
Standards Manual, that policy does not, by itself, necessarily establish that regularly
assigning nurses a full day of such monitoring in the CMR, alongside or in place of
Monitor Technicians, is reasonably comprehended within nurses’ previous
assignments. For instance, depending on how the County applied the policy in the
past, it may only establish that nurses read EKG and telemetry strips intermittently as
part of a wide array of bedside duties, while perhaps also filling in for Monitor
Technicians in the CMR in limited circumstances.6 As noted already, RNPA may or
may not be able to establish a violation, depending on the nature of those
6 We express no opinion whether a patient care policy bears the same weight
as a job description in applying the “reasonably comprehended” standard.

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circumstances, and the nature of nurses’ current assignments. We are therefore not
able to resolve this case without factual findings based on a full evidentiary record.7
Because there are one or more contested, outcome-determinative facts (or
mixed questions of law and fact), OGC should issue a complaint alleging that the
County violated the MMBA by materially changing Clinical Nurse job assignments
without providing RNPA notice and an opportunity to meet and confer.
ORDER
Case No. SF-CE-1872-M is hereby REMANDED to the Office of the General
Counsel for further case processing consistent with this decision.
Chair Banks and Member Paulson joined in this Decision.
7 The record will also permit us to resolve any other disputes the County may
raise regarding RNPA’s prima facie case, as well as any affirmative defense the
County chooses to assert. (See, e.g., City of Culver City (2020) PERB Decision
No. 2731-M, p. 18 [A clear and unambiguous contract provision can establish a waiver
defense. A unilateral employer policy cannot establish a waiver, but an employer may
establish waiver by showing that it provided an exclusive representative with advance
notice and an opportunity to bargain over a proposed policy, and the exclusive
representative then agreed to the policy or declined to bargain over it. In the latter
instance, there is no written waiver, as it is the union’s conduct that would establish
waiver]; County of Kern, supra, PERB Decision No. 2615-M, p. 8 [if a respondent
follows a nondiscretionary pattern of change, then it acts consistently with the dynamic
status quo and therefore does not commit a unilateral change].)