County of San Mateo (PERB I061M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF SAN MATEO,
Charging Party,
v.
Case No. SF-CO-433-M
PERB Order No. IR-61-M
June 27, 2019	AMERICAN FEDERATION OF STATE,
COUNTY & MUNICIPAL EMPLOYEES, LOCAL
829,
Respondent.
Appearances: Liebert Cassidy Whitmore by Richard Bolanos, Attorney, for County of San
Mateo; Beeson, Tayer & Bodine by Andrew H. Baker, Attorney, for American Federation of
State & Municipal Employees, Local 829.
Before Banks, Krantz, and Paulson, Members.
DECISION
KRANTZ, Member: This case came before the Public Employment Relations Board
(PERB or Board) on two requests for injunctive relief that Charging Party County of San
Mateo (County) filed in response to strike notices from Respondent American Federation of
State, County & Municipal Employees, Local 829 (AFSCME). We granted in part and denied
in part the County’s first request, and denied the County’s second request, as explained below.
BACKGROUND
The County is a public agency within the meaning of section 3501, subdivision (c), of the
Meyers-Milias-Brown Act (MMBA).1 AFSCME, a recognized employee organization within
the meaning of MMBA section 3501, subdivision (b), exclusively represents County employees
________________________
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
specified, all statutory references herein are to the Government Code.

2
in the following bargaining units: Health Services Unit, Human Services Unit, Inspection and
Regulation Unit, Institutional Services Unit, Licensed Vocational Nurse Unit, Parks Unit,
Planning Unit, Plant and Equipment Maintenance Unit, Clinical Laboratory Scientist Unit,
Telecommunications Unit, and Communication Dispatchers Unit.
In April 2018, the parties began negotiations for a new memorandum of understanding
(MOU). Negotiations continued regularly thereafter, both before and after the parties’ existing
MOU expired on October 6, 2018. On January 25, 2019, AFSCME declared that the parties had
reached an impasse in negotiations.2
Section XV of the County’s Employer-Employee Relations Policy governs impasse
resolution procedures. It provides that if either the County or a union requests an impasse
meeting, the parties shall promptly meet to “review” their positions “in a final good faith effort
to reach agreement on the disputed issues.” Section XV also provides that if the parties do not
reach agreement at the impasse meeting, then the parties may mutually agree to further dispute
resolution methods, but either party has the right to decline the other party’s proposal to engage
in such additional procedures.
The County asked to hold an impasse meeting, and the parties did so on January 31, but
they were unable to reach an agreement. At the meeting, AFSCME notified the County that it
was not interested in pursuing further dispute resolution methods, and AFSCME provided the
County with 13 days’ written notice of a two-day strike in all AFSCME-represented bargaining
units, to be held on February 13-14.
On February 1, the County provided 24 hours’ notice of its intent to ask PERB to seek
injunctive relief against the scheduled AFSCME strike. On February 5, the County filed an
________________________
2 Unless otherwise specified, all dates herein refer to 2019.

3
unfair practice charge alleging that AFSCME’s planned strike violated the union’s duty to
bargain in good faith because: (1) AFSCME had called a strike prematurely, without allowing
adequate time to consider or participate in dispute resolution methods; and (2) the threatened
strike included employees whose absence from work for two days would imminently and
substantially threaten public health or public safety. The County filed an accompanying
injunctive relief request asking PERB to file suit in superior court and seek a temporary
restraining order against AFSCME. The County filed more than a dozen declarations, together
with other information, in support of its injunctive relief request.3
On February 7, AFSCME opposed the injunctive relief request and filed five
declarations in support of its position. Also on February 7, PERB’s Office of the General
Counsel (OGC) posed written questions to the parties. Both parties responded later that day.
On February 8, OGC notified the parties that the Board had granted in part and denied in part
the County’s injunctive relief request. The Board preliminarily determined that 61 positions
were essential to the public health or safety, 56 of which should be filled for all regular
working hours and five of which should be filled by on-call employees who would be available
to work in the event of an emergency that could not otherwise be safely handled. OGC
________________________
3 The record does not reveal why the County waited until February 5 to file its charge,
injunctive relief request, and supporting information. Pursuant to PERB Regulation 32450,
subdivision (c) (Cal. Code Regs., tit. 8, sec. 32450(c)), a party must provide 24 hours’ notice
before filing an injunctive relief request. While the County arguably could have given such
notice on January 31, even assuming that it was reasonable to provide notice on February 1,
the County could have filed its injunctive relief request on Monday, February 4. There is no
notice requirement for filing an unfair practice charge, meaning that the County could have
filed its charge on January 31 or February 1. Moreover, a party planning to seek injunctive
relief is free to file any relevant information, via declaration or otherwise, as part of its charge.
Although delay is a permissible factor for the Board to consider, the Board did not draw any
adverse inference from the County’s apparent delay here. As noted by way of example at
several points below, our preliminary determinations may very well have been broader in some
areas and narrower in others, if PERB had been given a greater amount of time to investigate.

4
notified the parties that it would not seek to enjoin any such positions that AFSCME agreed to
exempt from the strike by 5:00 p.m. on February 9. AFSCME then timely agreed to grant
exemptions matching the Board’s partial grant, including both the 56 positions to be filled for
all regular working hours and the five positions to be filled with on-call employees. OGC
therefore notified the parties that it would not be filing an injunction action against AFSCME.
The County’s unfair practice charge remained pending.
The parties renewed their negotiations soon thereafter, and as a result AFSCME
canceled the strike scheduled for February 13-14, thereby allowing more time for bargaining.
On February 11, the parties reached a Tentative Agreement (TA) with respect to all eleven
AFSCME-represented units. AFSCME held a ratification vote on February 13-14. All units except
for the Human Services Unit (HSU) voted in favor of ratification. On February 26, AFSCME
provided the County with 7 days’ written notice of a two-day strike of HSU employees, to be
held on March 5-6. On February 27, the parties met in an effort to make progress on an agreement
covering HSU employees, but the parties were unable to reach an agreement. Also on February 27 ,
the County provided 24 hours’ notice of its intent to ask PERB to seek injunctive relief against
the scheduled AFSCME strike.
On February 28, the County amended its pending unfair practice charge to allege that:
(1) AFSCME was threatening a pre-impasse strike that the County believed was presumptively
unlawful; and (2) the threatened strike included employees whose absence from work for two
days would imminently and substantially threaten public health or public safety. The County
filed an accompanying request for injunctive relief and five supplemental declarations. The
County noted that out of the 61 positions that PERB had preliminarily determined to be
essential, 26 were HSU positions. Based on its “essential employee” theory, the County asked
PERB to seek injunctive relief as to those 26 positions, plus 14 additional HSU positions.

5
By letter dated February 28, AFSCME reiterated its willingness to exempt the 26 HSU
employees that the union had exempted on February 9, and the union further exempted six of
the 14 additional HSU positions that the County claimed were essential. By letter dated
March 1, OGC notified the parties that the Board had denied the County’s second injunctive
relief request, without prejudice. OGC’s letter noted that the Board, in reaching this
determination, had taken into account AFSCME’s exemptions.
DISCUSSION
In order for PERB to seek an injunction, it must find (1) “reasonable cause” to believe
an unfair practice has been or will be committed; and (2) that injunctive relief is “just and
proper.” (Public Employment Relations Bd. v. Modesto City Schools Dist. (1982)
136 Cal.App.3d 881, 895-896 (Modesto).) We apply these standards to each of the County’s
allegations.
I. 	The County’s Requests to Enjoin Entirely AFSCME’s Strikes
A strike that occurs prior to impasse and completion of any statutorily-required impasse
resolution procedures creates a rebuttable presumption that the union has breached its duty to
bargain in good faith. (County of Trinity (United Public Employees of California, Local 792)
(2016) PERB Decision No. 2480-M, p. 3 (Trinity).) After bargaining parties have reached a
bona fide impasse and exhausted any mandatory impasse resolution procedures, public sector
strikes are governed by the same rules as apply in the private sector (City of San Jose (2013)
PERB Decision No. 2341-M, p. 39), except that an employer’s “substantial concession” post-
impasse might temporarily re-institute the aforementioned rebuttable presumption, until a new
impasse is reached. (Trinity, supra, PERB Decision No. 2480-M, p. 5.)

6
The County argues that AFSCME demonstrated bad faith by calling a strike on
January 31, at the close of the parties’ mandatory post-impasse meeting. The gravamen of this
allegation is that AFSCME should have engaged in further impasse resolution procedures,
even though such further procedures were not required. This claim is not colorable, as the
County did not establish that it made a substantial concession sufficient to create a renewed
rebuttable presumption against calling a strike. The County’s argument as to AFSCME’s later
HSU strike fails for the same reason. While AFSCME called for the strike even as the parties
were engaged in non-mandatory post-impasse negotiations, there is no evidence that the
County had made a substantial concession sufficient to reinstate the rebuttable presumption
against calling a strike. Because we found no reasonable cause to believe that a rebuttable
presumption against pre-impasse strikes applied to either of AFSCME’s strikes, we did not
consider whether AFSCME could rebut such a presumption, nor did we consider whether an
injunction prohibiting AFSCME from proceeding with its strikes might be just and proper.
II. 	The County’s Requests for Partial Injunctions Covering Allegedly Essential Positions
A union violates its duty to bargain in good faith if it holds a strike by one or more
employees whose absence from work imminently and substantially threatens public health or
safety. (San Mateo County Superior Court (2019) PERB Order No. IR-60-C, p. 3 (San Mateo
Superior Court), citing City of San Jose v. Operating Engineers Local Union No. 3 (2010)
49 Cal.4th 597, 611 (City of San Jose) and other authorities.) This “essential employee”
standard derives from County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn.
(1985) 38 Cal.3d 564 (County Sanitation), and we therefore refer to it herein as the County
Sanitation standard. It “allows exceptions [to the right to strike] in certain essential areas of

7
public employment (e.g., the prohibition against firefighters and law enforcement personnel).”
(Id. at p. 586.)4
In City of San Jose, supra, 49 Cal.4th at p. 611, the Supreme Court ruled that 72 hours’
strike notice is long enough for PERB injunctive relief procedures to apply, and in such
circumstances, a PERB-covered employer can only seek a strike injunction by asking PERB to
seek an injunction on its behalf. When an employer asks PERB to seek an injunction against a
strike that includes allegedly essential employees, we are called upon to make a preliminary
determination as to whether certain positions satisfy the County Sanitation standard. (San
Mateo Superior Court, supra, PERB Order No. IR-60-C, p. 4.)5 In doing so, we assess each
position on a case by case basis. (Ibid.) Courts generally afford PERB deference in its
determinations regarding the extent to which injunctive relief may or may not be needed,
because PERB is California’s expert public sector labor relations agency, is experienced in
assessing complex labor disputes and their impact on the public, and has a dedicated staff of
attorneys to study the parties’ submissions in light of previous experience, precedent, and
competing interests. (City of San Jose, supra, 49 Cal.4th at p. 710 [Trial courts “should afford
due deference to PERB” and issue injunctive relief not sought by PERB “only when it is
clearly shown that PERB’s remedy would be inadequate.”]; San Mateo Superior Court, supra,
________________________
4 The Court described the “firefighters and law enforcement personnel” subject to this
exception as those “whose absence from their duties would clearly endanger the public health
and safety.” (County Sanitation, supra, 38 Cal.3d at p. 587.)
5 County Sanitation initially found that courts fulfilled this function for MMBA-
covered employers. However, the Supreme Court recognized in City of San Jose that when the
California Legislature vested PERB with jurisdiction over the MMBA in 2000, it required
MMBA-covered employers to use PERB injunctive relief procedures, even though those
procedures had previously been inapplicable to MMBA employers and unions. (City of San
Jose, supra, 49 Cal.4th at p. 605.) The Legislature thereby brought strike injunction
procedures for MMBA-covered employers in line with procedures for public entities covered
by labor relations statutes that the Legislature had already placed within PERB’s jurisdiction.

8
PERB Order No. IR-60-C, pp. 2-3, citing El Rancho Unified School Dist. v. National
Educational Assn. (1983) 33 Cal.3d 946, 958 and other authorities.)
Determining “whether a particular employee’s job is so essential that the employee may
not legally strike is a complex and fact-intensive matter.” (City of San Jose, supra, 49 Cal.4th
at p. 601.) We consider the nature of the services the alleged essential employees perform and
whether the employer has clearly demonstrated that disruption of such services for the length
of the strike would imminently and substantially threaten public health or safety. (San Mateo
Superior Court, supra, PERB Order No. IR-60-C, p. 4.)
If we find that a lapse in the public service at issue would imminently and substantially
threaten the public health or safety, we next consider whether the employer has clearly
demonstrated that it requires an injunction to protect the public even after fully accounting for
all possible service reductions and coverage options, including: (1) planning to use
supervisors, managers, non-bargaining unit personnel, and bargaining unit employees that the
union has exempted from the strike or who have affirmatively indicated that they plan to work
during the strike; (2) contacting all companies or other entities potentially able to provide
replacement employees or services, and contracting with such entities if they indicate they can
provide replacements; and (3) documenting the extent to which each of the aforementioned
options may or may not be feasible, including the available companies or agencies offering
temporary replacements, their responses when contacted, and any resulting contracts. (San
Mateo Superior Court, supra, PERB Order No. IR-60-C, p. 4, citing San Francisco County
Superior Court & Region 2 Court Interpreter Employment Relations Committee (2018) PERB
Decision No. 2609-I, p. 13.) Finally, for those employees that we preliminarily determine are
essential to public health or safety based on the above-described analysis, we must consider

9
what arrangements will protect the public while infringing as little as possible on employees’
protected rights.6 (San Mateo Superior Court, supra, PERB Order No. IR-60-C, pp. 4-5.)
Under the County Sanitation and Modesto standards described above, if a union
exempts from a planned strike certain employees or positions that PERB has preliminarily
found to be essential, such an exemption will normally mean that (1) there is no “reasonable
cause” to believe that the union is threatening an unfair practice as to those positions, and (2)
injunctive relief is not “just and proper” as to those positions. (San Mateo Superior Court,
supra, PERB Order No. IR-60-C, p. 5.) In such cases, we have directed OGC to exclude from
its injunctive relief request any positions that the union agrees to exempt from the strike, even
if the union’s offer covers only some of the positions we preliminarily found to be essential
and OGC needs to file for injunctive relief as to the others. (Id. at p. 7.) However, both the
“reasonable cause” and “just and proper” criteria may be satisfied—notwithstanding the
union’s commitment to exempt certain positions from its strike—if the employer demonstrates
that the union has violated or threatened to violate its commitment, or has offered an
exemption that is insufficiently broad to protect public health and safety.7 (Id. at p. 5.)
________________________
6 In some cases, the public may be sufficiently protected if the essential employees are
on call, i.e., ready to cross the picket line if needed in the event of an emergency. (San Mateo
Superior Court, supra, PERB Order No. IR-60-C, p 5, fn. 3.) In other instances, one or more
employees may need to be at work for their entire shift in order to protect the public. (Ibid.)
Like all determinations under County Sanitation, we resolve these issues on a case by case
basis, considering declarations and other information the parties submit. (Ibid.) Notably, at
later stages of litigation, including at an evidentiary hearing following issuance of a complaint
and in subsequent proceedings thereafter, neither PERB nor the parties are bound by
preliminary determinations PERB made based upon the parties’ submissions at the injunctive
relief stage. (Id. at p. 3, fn. 1.)
7 Exemptions, which some unions refer to as “line passes,” take a variety of forms.
Consistent with the discussion in footnote 6, ante, unions have at times issued only partial
exemptions, indicating that certain employees will stand ready to cross the picket line and
assist in the event of an emergency. In those instances in which the exemption indicates only

10
After PERB preliminarily determines that certain positions are essential, there may be
only a short time window available for the union to exempt some or all such positions and
thereby forestall completely, or at least narrow, the need for PERB to file suit for injunctive
relief. (San Mateo Superior Court, supra, PERB Order No. IR-60-C, p. 6.) We have
nonetheless directed OGC to provide such an opportunity to the fullest extent possible. (Ibid.)
A striking union need not use any particular format in notifying PERB, the employer, and the
affected employees if the union decides to narrow the scope of its planned strike. (Id. at p. 7.)
A letter from the union to PERB and the employer is often the clearest and most expeditious
means to exempt from a strike certain positions that PERB has preliminarily found to be
essential. (Ibid.)
Applying these standards to the parties’ submissions during the two rounds of
injunctive relief proceedings in this case, PERB reached the following preliminary
determinations regarding the various areas of County services in which the County sought an
injunction.
A. 	Public Safety Communications Department
Communications Dispatchers: Communications Dispatchers work 365 days per year,
24 hours a day, handling 9-1-1 calls and dispatching emergency services. The County clearly
demonstrated that this service is essential to public health and safety, as any lapse in the
service would mean that emergency services would not be dispatched in a timely manner,
thereby placing the public in immediate and significant risk of serious injury or death.
Because the County schedules no fewer than 18 Dispatcher II’s and 3 Dispatcher I’s in total
each day, and there were no available options to replace either of these classifications, PERB
________________________
that one or more employees stand ready to cross a picket line in the event of an emergency,
PERB must determine if that level of exemption is sufficient to protect the public.

11
found that 18 Dispatcher II’s and 3 Dispatcher I’s should report for their full shifts each day of
the strike.
B. 	Sheriff’s Office and Probation Department
Cooks and Food Service Workers: The County asked PERB to seek an injunction
against four Cooks and three Food Service Workers per day, arguing that these employees
serve a critical function by preparing and serving food to detained adults and juveniles, the
County cannot replace these employees on short notice due to background check requirements,
and there are no available options to cover the work. The County provided only limited
information regarding its ability to replace these employees or have other employees cover the
work, prepare food in advance, bring in food from outside governmental or non-governmental
establishments, or use a combination of these methods. Two of the County’s detention
facilities employ food service staff on weekends and holidays, while other facilities do not.
The County did not provide sufficient information as to whether the methods it uses on
weekends and holidays at certain locations might be sufficient, potentially in combination with
other methods, to cover the work at all locations during the strike. Nonetheless, in the absence
of any information from AFSCME, PERB determined that in this instance it would direct OGC
to seek an injunction requiring one Cook to work a full shift at each of the two detention
facilities that normally employs food service staff during weekends and holidays. In total,
therefore, PERB found that two Cooks and no Food Service Workers should report for their
full shifts each day of the strike. The County did not clearly demonstrate that a greater staffing
level was necessary to prevent an imminent and substantial threat to public health or safety.
Utility Workers: The County asked PERB to seek an injunction against one Utility
Worker and one Senior Utility Worker, arguing that this was the minimum staffing needed to

12
assist detained juveniles by doing laundry, delivering clothing, and performing other day-to-
day tasks. The County did not indicate to what extent Utility Workers normally work during
weekends and holidays. More generally, the County did not clearly demonstrate that the
Utility Workers’ absence would imminently and substantially threaten detained juveniles’
health or safety. Even if the service were essential to juvenile health and safety, the County
did not provide important information such as (1) to what extent the employees can perform
some of their work in advance of a strike, and (2) to what extent managers, supervisors, and
other unrepresented employees could cover remaining work.8 PERB denied the County’s
request.
C. 	Coroner’s Office
Forensic Autopsy Technicians: The County asked PERB to seek an injunction against
one Forensic Autopsy Technician to assist a County-employed pathologist with processing
decedents, collaborating with law enforcement, and releasing bodies for final disposition in a
prompt manner to meet religious and emotional needs of grieving family and friends. The
County did not clearly demonstrate that a lapse in their availability imminently and
substantially threatens the public health or safety, particularly given that Forensic Autopsy
Technicians normally work a Monday through Friday schedule.9 The County also did not
________________________
8 In both its declarations and briefs, the County repeatedly asserted that there were “not
enough” non-striking supervisors and managers who were able enough, or in some cases had
the requisite licensure, to fill in for striking workers. As noted ante, an employer asking for
extraordinary injunctive relief is required to provide PERB with greater information,
documenting the available non-striking supervisors and managers and to what extent they are
able to cover for striking workers, as well as contacting outside companies and agencies and
documenting their responses. This level of detail allows an employer to demonstrate clearly
the extent of remaining need after accounting for all coverage options.
9 In this and other instances in which there are one or more holidays or weekend days
on which County employees in a given classification do not work, the County was unable to
show that a two-day strike would threaten the public, even if that two-day lapse in a service

13
clearly demonstrate that one or more non-bargaining unit pathologists could not adequately
cover the technicians’ tasks. PERB denied the County’s request.
D. 	Department of Public Works
Airport Operations Specialists: The County asked PERB to seek an injunction against
four Airport Operations Specialists to serve as first responders for incidents at San Carlos
Airport and Half Moon Bay Airport. The County did not clearly demonstrate that closing the
airports would imminently and substantially threaten the public’s health or safety. PERB
therefore denied the County’s request. For this reason, PERB did not consider availability of
supervisors, contractors, or others.
Supervisory Stationary Engineers: The County asked PERB to seek an injunction
against three Supervisory Stationary Engineers to supplement managerial personnel in
responding emergently to issues that might arise with heating, cooling, plumbing and alarm
systems at County facilities. PERB found that one Supervisory Stationary Engineer should be
on call in the event of an emergency creating an unsafe condition at a detention facility. The
County did not clearly demonstrate that a greater staffing level was necessary to prevent an
imminent and substantial threat to public health or safety.
Boiler Watch Engineers: The County asked PERB to seek an injunction against three
Boiler Watch Engineers to supplement managerial personnel in monitoring and responding
emergently to issues that might arise with gas-fired hot water and steam boilers at the San
Mateo Medical Center (SMMC) central plant. PERB found that one Boiler Watch Engineer
________________________
were to be added to, and considered in context with, a proximate weekend. Moreover, even if
an employer makes such a showing, PERB must also consider the extent to which the
employer can lessen such impacts by authorizing weekday and weekend overtime work before
and after the strike, including opening or performing certain operations during a weekend
before and/or after a scheduled strike. The County’s failure to address such issues represents a
further lacuna in its position.

14
should be on call in the event of an emergency creating an unsafe condition at the SMMC
central plant. The County did not clearly demonstrate that a greater staffing level was
necessary to prevent an imminent and substantial threat to public health or safety.
E. 	Human Services Agency
Juvenile Shelter Care Counselors and Group Home Administrator: The County asked
PERB to seek an injunction against 13 Juvenile Shelter Care Counselors and one Group Home
Administrator, to operate the Receiving Home where Child and Family Services places
dependents on a temporary basis pending placement with a family member, with a non-relative
foster parent, or at a group home. The Receiving Home is a 24/7 operation, and the County
clearly demonstrated that a lapse in operations would imminently and substantially threaten
public health and safety. Moreover, the County submitted information showing that there are
mandated staffing ratios. Although there may be supervisors and managers capable of
covering some of the work, AFSCME responded to the County’s request by agreeing that the
staff should appear to work in the normally-required numbers. PERB granted this request as to
one Group Home Administrator and seven Counselor positions per day, as the County’s
information indicated that these staffing levels were sufficient.10
Social Workers: The County asked PERB to seek an injunction against 16 Social
Workers, to operate the County’s 24-hour hotline for allegations of child maltreatment and to
investigate such allegations as needed. The County clearly demonstrated that a lapse in the
hotline’s operation would imminently and substantially threaten public health and safety.
________________________
10 The County’s request for 13 Counselors was apparently intended to cover both days
of the strike. If so, then PERB’s order largely mirrors the County’s request, and is simply
expressed on a per-day basis for the sake of consistency. If the County actually sought 13
Counselors per day, then that request is denied in part, as the County’s own information
undercuts the need for that high a staffing level.

15
Although there are supervisors and managers capable of covering some of the work, PERB
ordered that six Social Workers per day should supplement the supervisors and managers,
thereby at least matching the County’s weekend and holiday staffing level. The County did not
clearly demonstrate that a greater staffing level was necessary to prevent an imminent and
substantial threat to public health or safety.
Benefits Analysts: The County asked PERB to seek an injunction against 63 Benefits
Analysts allegedly needed to receive, review, and determine eligibility for immediate need
applications for Medi-Cal, CalFresh, and CalWORKS. The County did not clearly
demonstrate that a lapse in their availability imminently and substantially threatens the public
health or safety, particularly given that the analysts normally work a Monday through Friday
schedule and there are four managers who can fill in. PERB therefore denied the County’s
request as to Benefits Analysts. In advance of the HSU unit strike on March 5-6, the County
submitted a scaled-down request, asking PERB to seek an injunction against eight Benefits
Analysts. However, the County still provided insufficiently persuasive information that the
two-day strike would imminently and substantially threaten the public. Even if 100 percent of
the Benefit Analysts were to honor a two-day strike, and even ignoring the four managers able
to fill in, such a two-day closure would be for a shorter period than the County’s common
three-day and occasional four-day holiday weekends. The County also did not address its
ability to authorize overtime work before and after the strike, both on weekends and on
weekdays. Accordingly, PERB denied the County’s renewed request as to benefit analysts.
F. 	Health System–Behavioral Health & Recovery Services (BHRS)
Access Call Center Employees–SMHCs and PSW/MFT IIs: The County asked PERB to
seek an injunction against one Supervising Mental Health Clinician (SMHC) and four

16
Psychiatric Social Worker/Marriage Family Therapist IIs (PSW/MFT IIs) at the County’s
Access Call Center, which handles calls from individuals experiencing mental health distress,
including some who could present a safety threat to themselves. The County clearly
demonstrated that the service is essential to public health and safety, as any lapse would place
members of the public in immediate and significant risk of serious injury or death. However,
the County provided unclear and insufficient information about the availability of managers to
perform the work. Moreover, the County indicated that the requested staff work only regular
business hours Monday through Friday, and that a contractor covers the calls during other
periods. The County provided unclear and insufficient information regarding contractors’
ability to cover the strike. For these reasons, PERB denied the County’s request.
In advance of the HSU unit strike on March 5-6, the County submitted a scaled-down
request, asking that two PSW/MFT IIs be enjoined to work at the call center during the strike.
The County submitted new information in support of this request. AFSCME agreed to the
County’s scaled-down request for two PSW/MFT IIs. PERB therefore did not consider
whether the County had submitted additional information sufficient to demonstrate clearly that
two PSW/MFT IIs must be enjoined in order to protect the public from an imminent and
substantial health or safety threat.
Alcohol & Other Drug Treatment (AOD) Employees–AOD Supervisors, Lead BHRS
Specialists, and Case Management Specialist IIs: The County asked PERB to seek an
injunction against one AOD Supervisor, one Lead BHRS Specialist/Medication Assisted
Treatment (MAT) Case Manager, and one Case Management Specialist II, arguing that these
employees coordinate access to inpatient and outpatient care for clients with substance use
disorders, including those undergoing withdrawal and those at risk of overdose. The County’s

17
initial papers did not indicate if these employees normally work weekends and holidays, did
not indicate these employees’ roles relative to doctors and other staff, and also failed to
consider whether one of the three positions at issue could fill in for the other two during a
strike, and/or commonly does so on weekends or holidays. PERB sought further information
from the County, but the County did not cure these deficiencies in the time available, and
PERB denied the County’s request.
In advance of the HSU unit strike on March 5-6, the County submitted a scaled-down
request, asking that one BHRS Specialist/MAT Case Manager be enjoined to work during the
strike, indicating that this one individual could cover all emergent work. In supporting this
scaled-down request, the County provided a certain amount of the missing information noted
above. It supplemented and corrected information it had previously provided, noting that the
BHRS Specialist/MAT Case Manager position is filled from 7:00 a.m. to midnight, Monday
through Saturday, and for eight hours on Sunday. The County also provided additional
information about the lack of other options for covering the work. AFSCME thereafter agreed
to the County’s scaled-down request for one BHRS Specialist/MAT Case Manager. PERB
therefore did not consider whether the County had submitted additional information sufficient
to demonstrate clearly that one BHRS Specialist/MAT Case Manager must be enjoined in
order to protect the public from an imminent and substantial health or safety threat, nor
whether any such injunction would be for on-call status.
Regional Clinic Employee–SMHCs: The County asked PERB to seek an injunction
against one SMHC at each of six regional clinics, in order to triage clients for emergent
treatment needs and provide referrals to appropriate providers. The County did not clearly
demonstrate that a lapse in their availability imminently and substantially threatens the public

18
health or safety, particularly given that SMHCs at the regional clinics normally work a
Monday through Friday schedule. Even if the service were essential to health and safety, the
County provided unclear and insufficient information about the availability of managers,
supervisors, non-bargaining unit personnel, and other County and non-County services to
perform the work. PERB denied the County’s request.
Canyon Oaks Youth Center Employee –Residential Counselor IIs: The County asked
PERB to seek an injunction against 10 Residential Counselor IIs at the County’s Canyon Oaks
Youth Center, a residential facility for severely emotionally disturbed youth. Residential
Counselor IIs at the Center must be able to supervise and assist youth in crisis. They work in
eight-hour shifts, covering 24 hours per day, seven days per week. PERB granted the County’s
request as to 10 Residential Counselor IIs.11
School-based Employees–SMHCs, Mental Health Program Specialists & PSW/MFTs:
The County asked PERB to seek an injunction against three SMHCs, one Mental Health
Program Specialist, and one PSW/MFT who provide mental health services to severely
emotionally disturbed students in an educational setting, at the County’s Therapeutic Day
School (TDS) program. This program provides services to students at TDS classrooms
throughout the County. TDS is an important special education program but is not available
every day. The County submitted no evidence suggesting that a lapse in TDS would cause an
imminent and substantial health or safety threat. In resolving injunction requests filed by
school districts, PERB has found no basis to enjoin similar special education employees and
________________________
11 PERB received conflicting information regarding the number of bargaining unit
employees needed and possible coverage options for Residential Counselor IIs during a noticed
strike. This conflicting information included last-minute information from AFSCME on the
morning of February 8. Had PERB received such information earlier, leaving more time to
investigate, it is possible that PERB might have reached a preliminary determination that
involved a more narrowly tailored staffing level for Residential Counselors.

19
other school-based mental health professionals. The County also provided unclear information
about availability of other staff to handle these tasks, asserting that there were “not enough”
managers with the requisite licensing to cover all the work, but failing to provide adequate
specificity for PERB to evaluate this claim. The County did not clearly demonstrate that an
injunction was necessary to prevent an imminent and substantial threat to public health or
safety. PERB therefore denied the County’s request.
In advance of the HSU unit strike on March 5-6, the County submitted a scaled-down
request, asking that one SMHC, one Mental Health Program Specialist, and one PSW/MFT
perform the “school-based” work. In submitting its scaled-down request, the County no longer
sought sufficient employees to provide TDS services to County students generally. Instead,
the County asserted that its request was for employees to work with students at Canyon Oaks
Youth Center, in conjunction with the Residential Counselors discussed ante. According to the
County, while these employees are technically school-based, they respond to emergencies in
the residential setting. AFSCME agreed to the County’s scaled-down request. PERB therefore
did not consider whether the County had submitted additional information sufficient to
demonstrate clearly that one SMHC, one Mental Health Program Specialist, and/or one
PSW/MFT must be enjoined in order to protect the public from an imminent and substantial
health or safety threat, nor whether any such injunction would be for on-call status.
G. 	Health System–Family Health Services Office
Social Work Supervisors: The County asked PERB to seek an injunction against one
Social Work Supervisor who determines financial eligibility for California Children’s Services
and enrolls children in the program. The County did not clearly demonstrate that a lapse in
such services would imminently and substantially threaten the public health or safety,

20
particularly given that these services are available only Monday through Friday. PERB denied
the County’s request.
Supervising Dieticians: The County asked PERB to seek an injunction against two
Supervising Dieticians to counsel participants in the Woman Infants and Children program,
determine eligibility for the program, enroll participants in the program, and issue food
vouchers. The County did not clearly demonstrate that a lapse in such services would
imminently and substantially threaten the public health or safety, particularly given that these
services are available only Monday through Friday. PERB denied the County’s request.
H. 	Health System–Public Health Policy and Planning Office
Microbiologists: The County asked PERB to seek an injunction against one Public
Health Microbiologist and one Supervising Microbiologist, to perform clinical and
environmental testing. The County did not clearly demonstrate that a lapse in such services
would imminently and substantially threaten the public health or safety, particularly given that
these services are available only Monday through Friday. Moreover, the non-bargaining unit
assistant laboratory director indicated in a declaration that he has the required qualifications to
do the work, while asserting that he could not reasonably do the work of multiple striking
microbiologists. PERB denied the County’s request.
Community Worker IIs: The County asked PERB to seek an injunction against one
Community Worker II, to drive a mobile clinic that provides medical care to people
experiencing homelessness. The County did not clearly demonstrate that a brief lapse in such
services would imminently and substantially threaten the public health or safety, particularly
given that the County has made the decision that such services are at most available five days
per week. The County also provided unclear information about the availability of other staff to

21
handle such work, asserting that only those with a Class B license could drive the mobile
clinic, and that it would take “several days, if not weeks,” to train such persons. PERB denied
the County’s request.
I. 	Health System–Environmental Health Services
Hazmat Emergency Response Team Leads: The County asked PERB to seek an
injunction against one Hazmat Emergency Response Team Lead to respond if there is a
hazardous materials spill or other similar emergency. Normal weekend staffing for this
position is one on-call employee. PERB granted this request in part, finding that one Hazmat
Emergency Response Team Lead should be on call in the event of an emergency, as it is a
critical function needed to protect public health and safety, and is not replaceable by any
supervisor, manager, contractor, or otherwise. The County did not clearly demonstrate that a
greater staffing level was necessary to prevent an imminent and substantial threat to public
health or safety.
J. 	Health System–Adult and Aging Services
Adult Protective Services Social Worker IIIs and Deputy Public Guardian IIIs: The
County asked PERB to seek an injunction against two Adult Protective Services Social Worker
IIIs and two Deputy Public Guardian IIIs, to respond to emergency reports of elder abuse,
including reports made via the County’s 24-hour hotline for elder abuse. PERB granted this
request in part, finding that one Adult Protective Services Social Worker III and one Deputy
Public Guardian III should be on call if needed to supplement unrepresented supervisors and
managers capable of covering this work. The County explained that there is great variation in
the number of reports received per day, and the total number is typically around 50-75 per day,

22
with a variable percentage requiring immediate follow-up. AFSCME did not counter this
information. For this reason, PERB granted the County’s request to the extent noted above.
K. 	Health System–San Mateo Medical Center
The County asked PERB to seek an injunction against multiple positions based at
SMMC, including inpatient and outpatient pharmacists, clinical lab scientists, respiratory
therapists, dietitians, physical and occupational therapists, speech pathologists, laboratory
assistants, medical and dental assistants, pharmacy technicians, sterile processing technicians,
surgical technicians, supply assistants, telephone operators, cooks, and food service workers,
as well as radiologic technologists, imaging specialists, and electrograph technicians who
conduct and process x-ray, CT, MRI, EEG, EKG, EMG, and ultrasound tests. SMMC, which
operates a general acute care hospital and a network of 14 clinics, provides a full range of
inpatient and outpatient primary care and specialty services, emergency services, and inpatient
and emergency psychiatric services, among other types of care. SMMC’s hospital is licensed to
operate 69 General Acute Care beds, 34 Acute Psychiatric beds, and 32 Skilled Nursing beds.
SMMC, a level II trauma center, serves patients of all ages, including incarcerated adults and
juveniles.
With respect to SMMC positions that are not filled on certain holidays and weekend
days, including positions at the County’s clinics as well as certain positions at the hospital, the
County did not submit information tending to show that the short threatened strikes at issue
would imminently and substantially threaten the public health or safety. Hospital positions
that are filled seven days a week pose a more complicated analysis, to which we now turn.
We begin with the Supreme Court’s County Sanitation decision establishing that
California public employees may strike unless their absence from work would imminently and

23
substantially threaten public health or safety. In considering the nature of the services, one
relevant factor is the extent to which the employer is playing a role that is distinct from private
entities providing similar services, whose employees are free to strike without any court or
regulatory body considering the impact on the public. County Sanitation cautioned that “the
presumption of essentiality of most government services is questionable at best,” as the law
allows private sector employees to strike in every industry, including in “many of the same
areas in which government is engaged, such as transportation, health, education, and utilities;
in many employment fields, public and private activity largely overlap.” (County Sanitation,
supra, 38 Cal.3d at p. 579, emphasis supplied.) Whether a service is public or private is often
merely “historical accident, subject to future change . . . [s]ervices that were once rendered by
public enterprise may be contracted out to private enterprise, and then by another
administration returned to the public sector.” (Id. at p. 580, internal quotation marks and
citations omitted.) Indeed, PERB is quite familiar with the fact that medical centers frequently
move back and forth between the public and private sectors. (See, e.g., El Camino Hospital
District (2009) PERB Decision No. 2033-M, pp. 14-15 [noting significant change in public
health care workers’ right to strike as a result of County Sanitation, and further noting that El
Camino Hospital privatized and then became public again]; Regents of the University of
California (1999) PERB Order No. Ad-293-H, p. 8 [discussing legislative history of UCSF
Medical Center’s three-year experiment as a private medical center, which began when the
University of California and Stanford University formed a private entity to merge and run their
medical centers, before later abandoning the experiment and demerging].)12
________________________
12 In certain cases, a public entity may be a direct market competitor to private entities.
In ascertaining the extent to which certain public employees wholly or partially lose their right

24
PERB therefore takes into account the extent to which a public health care employer
provides services that are different in nature from the private health care employers that
commonly weather strikes. In practice,
PERB has sought injunctions for greater numbers of healthcare
employees in medical facilities that are primarily focused on
healthcare services for incarcerated persons (including those in
juvenile detention facilities) and indigent persons, as compared to
public academic medical centers whose role more closely
matches that of private academic medical centers.
( Zerger, ed. (2nd ed. 2018) California Public Sector Labor Relations § 11.03[4].)
In this case, SMMC provided information showing that its services are somewhat
different from the private sector, because the vast majority of its patients are either indigent or
low income. However, SMMC still must demonstrate that it has fully pursued other available
means of protecting the public, such as hiring replacements, and that an injunction is necessary
even after accounting for these measures. (County Sanitation, supra, 38 Cal.3d at p. 587 &
fn. 35.) We explain.
Over the course of many health care injunction proceedings, PERB has gained
knowledge and experience about the availability of strike replacements through both local
registries and national striker replacement companies that fly in replacements from other areas
of the state and the country. In many such cases, County medical centers, District medical
centers, and public academic medical centers have each contracted with national striker
replacement companies, and have demonstrated that such companies provide access to a far
greater pool of replacement workers than is available through local registries alone.
________________________
to strike, we do not seek to provide a competitive advantage to a market participant merely
because it is a public entity.

25
A health care employer facing a strike may decide to forego national striker
replacement companies and focus instead on other types of strike contingency plans, such as
canceling elective treatments, decreasing patient census, and providing care using supervisors,
managers, non-striking employees, and local registry employees. However, if it eschews
available options that might wholly or partially obviate the need for an injunction, an employer
undercuts its own request for injunctive relief. Particularly in light of County Sanitation’s
instruction to assess the availability of replacement employees (County Sanitation, supra,
38 Cal.3d at p. 587 & fn. 35), and given that use of national striker replacement companies is
pervasive in the health care industry, the County short-circuited our analysis by declining to
hire replacements through national companies. We do not accept the County’s justification
that it did not have “fruitful discussions with striker replacement agencies, as the costs for such
agencies are prohibitively expensive and can cost in excess of $1 million per day.” Indeed, a
union’s economic strike, like an employer’s decision to impose new terms after impasse, is
economic pressure designed to break the parties’ deadlock, and is fully consistent with good
faith collective bargaining under the legislative scheme we enforce. (County Sanitation, supra,
38 Cal.3d at p. 588; City & County of San Francisco (2017) PERB Decision No. 2536-M,
p. 25.) Pursuant to the County Sanitation standard, an employer is not entitled to an injunction
merely because it would cost the employer a substantial amount of money to hire
replacements.
Even as to local registry companies on whom the County did rely, the County failed to
provide PERB with the County’s specific requests and the company’s specific responses. An
employer seeking injunctive relief must provide PERB with its specific requests to local and
national companies potentially capable of providing replacement employees, as well as those

26
companies’ specific responses to such requests.13 The County’s failure to do so was another
significant hole in its attempt to show the need for its requested injunction.14
The County had more than enough time to seek replacements in this case. Its decision
not to utilize national striker replacement companies, and its failure to provide the
aforementioned documents regarding its reliance on local companies, were each a sufficient
basis for PERB to deny entirely the County’s injunction request at SMMC. Nonetheless,
PERB exercised its discretion and partially granted the County’s injunctive relief request as to
inpatient pharmacists and clinical laboratory scientists. In reaching this conclusion, PERB
drew on knowledge and experience from prior cases, in which medical center employers have
submitted unrebutted information tending to establish that (1) those classifications are not
available through national striker replacement companies or local registry companies and (2)
their work is only coverable by other hospital staff to the extent there may be qualified
supervisors or managers. PERB therefore granted the County’s request as to three inpatient
pharmacists and six clinical laboratory scientists. The County did not clearly demonstrate that
________________________
13 As with other information that the parties provide during injunctive relief
proceedings, an employer must provide updates as replacement availability changes. Indeed,
an employer is unlikely to have received a final and definitive response to its request by the
time the employer first files its initial request for injunctive relief.
14 A recent injunctive relief request before the Board helps to illustrate the evidentiary
considerations in play. There, we sought a broad injunction based on a health care employer’s
representations that insufficient replacements were available. Later, we learned the employer
had requested only a small number of replacements, as it was hoping PERB would obviate the
need for more replacements by obtaining an injunction. The employer told a striker
replacement agency that it would submit a much larger request for replacements if PERB did
not obtain a broad enough injunction. This type of approach is backward; we assess the threat
to the public, if any, after taking into account all available replacements. (County Sanitation,
supra, 38 Cal.3d at p. 587 & fn. 35; San Mateo Superior Court, supra, PERB Order No.
IR-60-C, p. 4.)

27
a greater staffing level was necessary to prevent an imminent and substantial threat to public
health or safety.
III. 	Conclusion
PERB partially granted the County’s initial injunctive relief request, preliminarily
determining that 61 positions were essential to the public health or safety, 56 of which should
be filled for all regular working hours and five of which should be filled by on-call employees
who would be available to work in the event of an emergency that could not otherwise be
safely handled. After OGC notified the parties of PERB’s decision, AFSCME agreed to
exemptions matching PERB’s preliminary determinations. Therefore, there was no cause to
seek an injunction. (San Mateo Superior Court, supra, PERB Order No. IR-60-C, p. 5.)
AFSCME then called a strike of the HSU unit, which included 26 of the 61 positions included
in PERB’s initial determination. The County asked PERB to seek an injunction covering these
26 positions plus 14 more. AFSCME, without waiting for PERB to rule, agreed to expand its
exemption to include six of the additional 14 positions the County sought, leaving only 8
benefit analyst positions in dispute. PERB again concluded that these positions did not satisfy
the County Sanitation standard. Accordingly, PERB denied the County’s second injunctive
relief request.
ORDER
Based on the foregoing findings and conclusions, and the entire record in this case, the
Board GRANTS IN PART AND DENIES IN PART the requests to seek injunctive relief in
Case No. SF-CO-433-M.
Members Banks and Paulson joined in this Decision.