County of Ventura (PERB 2067M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

UNION OF AMERICAN PHYSICIANS &
DENTISTS,
Charging Party, Case No, LA-CE-337-M |
v. PERB Decision No. 2067-M
COUNTY OF VENTURA, September 29, 2009
| Respondent.

Appearances: Lawrence Rosenzweig, Attorney, for Union of American Physicians & Dentists;
Matthew A. Smith, Assistant County Counsel, for County of Ventura.

Before Dowdin Calvillo, Acting Chair; Neuwald and Wesley, Members.
DECISION

WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both the Union of American Physicians & Dentists
(UAPD) and the County of Ventura (County) to the proposed decision (attached) of an
administrative law judge (ALJ). The ALJ found that the County was a joint employer of the
clinic physicians, and as such its failure to process UAPD’s request for recognition under the
County’s local employer/employee relations rules was a violation of Meyers-Milias-Brown Act

(MMBA)! sections 3507(c), 3509(b), 3502 and 3506, * and PERB Regulation 32603(a) and

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

* The ALJ held no violation of MMBA section 3507.1(c), finding that it was premature
to determine whether the County should have granted UAPD exclusive or majority
jurisdiction, as UAPD never got that far in the process, and the issue is beyond the factual
scope of the complaint.

(g). 3 Additionally, the ALJ found that the County did not violate its own local
employer/employee relations rules when it refused to process UAPD's appeal to the Civil
Service Commission, since the local rules specify it is the unit determination that may
be
appealed, and not the refusal to process a request for recognition.4
The Board has thoroughly reviewed the proposed decision and the record in light
of
the
parties' exceptions, responses, and the relevant law. Based on this review, we find the
ALJ's
proposed decision to be a correct statement
of
the law and well reasoned, and therefore
adopt
it
as the decision
of
the Board itself, as supplemented by the discussion below. 5
BACKGROUND
The ALJ' s proposed decision contains a thorough and accurate recitation
of
the facts
underlying the unfair practice charge and complaint. We briefly summarize the facts.
The Ventura County Medical Center (VCMC) oversees the Ventura County Hospital
(Hospital) and its Ambulatory Care Department (Ambulatory Care). Ambulatory Care
provides for outpatient primary care services via eleven Ambulatory Care Clinics (Clinics)
located throughout the County. Each Clinic is operated by a private corporation (usually solely
owned by an individual physician who acts as the Clinic Medical Director), pursuant to a
3 PERB regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq.
4 No exception was filed regarding the ALJ's determination that the County did not
violate its own local employer/employee relations rules when it refused to process UAPD's
appeal to the Civil Service Commission, therefore this issue will not be addressed herein.
5 The County's request for oral argument pursuant to PERB Regulation 32315 is
denied. The Board has historically denied requests for oral argument where an adequate record
has been prepared, the parties had ample opportunity to present briefs and have availed
themselves of that opportunity, and the issues before the Board are sufficiently clear to make
oral argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision
No. 1816-M; Monterey County Office
of
Education (1991) PERB Decision No. 913.) These
criteria are met in this case.
2

contract with VCMC. 	The Clinics in turn enter into employment agreements with physicians
to provide medical services at the Clinics.
In October
of
2006, UAPD filed a petition for recognition with the County, seeking to
represent all full and part-time primary care physicians working at the Clinics. The
County
refused to process the petition, stating that the individual Clinics themselves, and not
the
County, are the employers
of
the physicians.
In November 2006, pursuant to the Ventura County Personnel Rules and Regulations,
UAPD appealed the refusal and requested the County refer the matter to the County Civil
Service Commission. 	The County refused this request as well, stating again that County is not
the employer
of
the physicians, and therefore the matter is not under Civil Service Commission
jurisdiction.
DISCUSSION
MMBA section 350l(d) defines a "Public employee" as follows:
any person employed by any public agency, including employees
of
the fire departments and fire services
of
counties, cities, cities
and counties, districts, and other political subdivisions
of
the
state, excepting those persons elected by popular vote or
appointed to office by the Governor
of
this state.
(Emphasis added.)
The County does not dispute that it is a public agency pursuant to the MMBA. 	Instead,
the County points to provisions
of
the service contracts between the County and the Clinics,
which declare that the physicians are employed by the individual Clinics themselves, and not
by the County, thereby making the MMBA inapplicable to the County in this matter. The
County further argues that new contracts have been executed with each of the Clinics which
3

clarify the intent that the physicians are not "employed by" the County.6 However,
as
the
Board discussed in Ventura County Community College District (2003) PERB Decision
No. 1547 (Ventura), when determining whether or not certain individuals are "employees"
of
an agency, the Board is not bound by the agency's intent, nor by declarations made in contracts
between the agency and a third party. Thus, the County cannot unilaterally circumvent
the
rights guaranteed to its employees by the MMBA through the provisions
of
a contract
with
the
clinic medical directors. The question
of
whether or not the County is the employer
of
the
clinic physicians is for the Board to determine, based on the record and the applicable law.
Joint Employer Analysis
We agree with the ALJ that the County is a joint employer
of
the clinic physicians.
PERB has acknowledged that a "joint employer" situation arises "where two or more
employers exert significant control over the same employees - where from the evidence it can
be shown that they share or co-determine those matters governing essential terms and
conditions
of
employment." (Ventura; United Public Employees
v.
Public Employment
Relations Bd. (1989) 213 Cal.App.3d 1119, 1128 [citing to N.L.R.B.
v.
Browning-Ferris
Industries, Inc.
(3 rd
Cir. 1982) 691 F.2d 1117, 1124].) The joint employer analysis is focused
on the relationship between the County and the physician employees. 	Specifically, the
question is whether or not the County retains the right to "control both what shall be done and
Copies of the new contracts were admitted only to show that subsequent to the filing
of
the petition, the agreements had changed. The County excepts to this ruling, arguing that
the new contracts should have been admitted as evidence
of
the parties intent that the clinic
physicians are not employees of the County. We agree with the ALJ's finding that the new
contracts do not reflect the status
of
the employment relationship at the time the petition for
recognition was filed and are therefore irrelevant for this purpose. Furthermore, as discussed
herein, even if the contracts had been admitted to reflect the intent of the County, the Board is
not bound by the intent of the County, and the County had ample opportunity to put on
evidence regarding the relationship between the County and the clinic physicians at the time
the petition for recognition was filed.
4

how it shall be done," such that it retains the "right to control and direct the activities
of
the
person rendering service, or the manner and method in which the work is performed." (Service
Employees Internat. Union
v.
County
of
Los Angeles (1990) 225 Cal.App.3d 761.)7 This is
essentially a factual determination.
The County argues in its exceptions that by holding that the County raised its lack
of
employer status as an affirmative defense, the ALJ improperly created a presumption
that
the
County is a joint employer
of
the clinic physicians, thus shifting the burden
of
proof to
the
County to prove that it was not a joint employer. The County argues that this improperly
relieved the U APD
of
the burden to prove, as an element
of
its case, that the clinic physicians
were public employees subject to the protections
of
the MMBA. Accordingly, the County
raised numerous factual exceptions, and argues that the UAPD failed to meet its burden
of
proof in this regard.
Based on a thorough review
of
the pleadings, we find that the County did not raise its
lack
of
employer status as an affirmative defense, but rather asserted that the UAPD failed to
establish a prima facie case by failing to establish that the County was the employer
of
the
physicians. 	However, while the decision characterized the County's assertion as an
affirmative defense in the procedural history, it was not treated as such in the analysis. 	The
Board finds nothing in the record or the ALJ' s analysis to suggest that the ALJ shifted the
burden
of
proof as alleged. Therefore, the County's argument in this regard has no merit.
7 The joint employer question is determined irrespective to any determination
of
the
nature of the connection between the two companies in question. This is distinct from the
"single employer" analysis which looks to whether or not two purportedly independent
companies are in actuality a single enterprise, such that they are equally subject to the relevant
labor relations statutes.
5

Additionally, the County argues that the ALJ "failed to apply the correct legal
standard" because under the joint employer analysis UAPD was required to prove "actual
control" over the clinic physicians, and that the ALJ "confuses the contractual obligations that
the clinic operators assumed as part
of
their agreement with the County, with exercise
of
control by the County over clinic physicians." 	These arguments also lack merit.
While the Board in San Jose/Evergreen Community College District (2007) PERB
Decision No. 1928 does discuss the notion
of
"actual control," the Board does not establish an
"actual control" test
of
any kind. Rather, the term is used in discussion when distinguishing
the significance
of
the conduct between the parties from mere recitals in operational
documents. The question
of
whether or not a company exerts sufficient control over the terms
and conditions
of
employment such that it is deemed a joint-employer is primarily factual,
based on the entire record. Ultimately, the County fails to support its assertion
of
an "actual
control" test, arguing instead that the ALJ failed to adequately consider evidence
of
the
conduct between the parties, and that the ALJ' s factual determinations that the County
exercised control over the clinic physician's employment were not supported by the record.
Moreover, while one purpose
of
the services contracts between the County and the
Clinics is to set forth obligations that the clinic operators assume as part
of
their agreement
with the County, this does not preclude the determination that the County retains power over
the physicians as employees. The Board in Ventura, supra, acknowledged the distinction
between the reservation of the right to control the result sought, and the right to control the
manner and means by which this result is accomplished (Ventura citing News Syndicate Co.,
Inc. (1967) 164 NLRB 422). The Board determined that when an agency retains the right to
control the manner and method in which the work is performed, that agency retains its status as
an employer. 	In the case at hand, the ALJ found that the County retained and exercised control
6

in areas such
as
hiring practices, review
of
individual employment agreements, salaries
and
specialty pay, time base reduction, discipline, restrictions regarding patient care, and
operational policies such as fees and dress code. In doing so, the County retained control over
the manner and method in which the work is performed by the clinic physicians, and is
therefore a joint employer
of
the clinic physicians.
Therefore, based on a thorough review
of
the record, we find that the ALJ' s findings
are supported by the record, and that the County is a joint employer
of
the clinic physicians.
Identification
of
Specific Negotiable Terms and Conditions
of
Employment
The County argues that the ALJ erred in making a general finding
of
the County's
status as a joint employer
of
the clinic physicians without identifying the specific terms
and
conditions
of
employment over which the County is required to bargain. This argument is
similarly without merit. The County's status as an employer
of
the clinic physicians such that
the County is subject to the MMBA and the obligation to process UAPD's request for
recognition in accordance with the MMBA and the County's local employer/employee
relations rules, is the proper issue in this matter. A determination
of
specific bargaining
obligations at this point would be both premature and outside the factual scope
of
the
complaint.
U APD' s Exception to the Proposed Remedy
UAPD filed a single exception to the ALJ's proposed remedy, arguing that the order to
proceed through the recognition process in accordance with County employer/employee
relations rules would result in further unfair delay and that the County should be ordered to
move directly to a representational election.
We agree with the ALJ' s reasoning that it is premature to direct the County to
recognize UAPD or to conduct an election. Accordingly, the ALJ's remedy is appropriate.
7

ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, it is found that the County of Ventura (County) violated the Meyers-Milias-Brown
Act (MMBA) when it refused to process the Union of American Physicians & Dentists'
(UAPD) petition for recognition. By this conduct, the County violated Government Code,
MMBA sections 3507(c) and 3509(b), and PERB Regulation 32603(g) (Cal. Code Regs., tit. 8,
§ 31001 et seq.), and interfered with employee rights in violation of MMBA sections 3502 and
3506, and PERB Regulation 32603(a). All other allegations are DISMISSED.
Pursuant to MMBA section 3509(a) and (b), it is hereby ORDERED that the County, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to process U APD 's petition for recognition according to its
local employer/employee relations rules.
2. 	Interfering with the clinic physicians' right to participate in the activities
of an employee organization of their own choosing for the purpose of representation on all
matters of employer/employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within thirty (30) workdays following the date this Decision is no longer
subject to appeal, process the request for recognition by UAPD according to the County's
employer/employee relations rules.
2. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees are customarily posted,
copies of the Notice attached hereto. The Notice must be signed by an authorized agent of the
8

County, indicating the County will comply with the terms
of
this Order. Such posting shall be
maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be
taken
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material. 
3.	
Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board or the General
Counsel's designee. The County shall provide reports, in writing as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on UAPD.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
9

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-337-M, Union of American
Physicians & Dentists v. County of Ventura, in which all parties had the right to participate, it
has been found that the County of Ventura (County) violated the Meyers-Milias-Brown Act
(MMBA) when it refused to process the Union of American Physicians & Dentists' (UAPD)
petition for recognition. By this conduct, the County violated Government Code, MMBA
sections 3507(c) and 3509(b), and PERB Regulation 32603(g) (Cal. Code Regs., tit. 8, § 31001
et seq.), and interfered with employee rights in violation of MMBA sections 3502 and 3506,
and PERB Regulation 32603(a).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to process UAPD's petition for recognition according to its
local employer/employee relations rules.
2. 	Interfering with the clinic physicians' right to participate in the activities
of an employee organization of their own choosing for the purpose of representation on all
matters of employer/employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
I. 	Process the request for recognition by UAPD according to the County's
employer/employee relations rules.
Dated: 	COUNTY OF VENTURA
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DA TE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNION OF AMERICAN PHYSICIANS &
DENTISTS,
Charging Party,
V.
COUNTY OF VENTURA,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-337-M
PROPOSED DECISION
(1/10/2008)
Appearances: Lawrence Rozenzweig, Esq. for Union
of
American Physicians & Dentists;
Noel A. Klebaum, County Counsel, by Matthew A. Smith, Assistant County Counsel for
County
of
Ventura.
Before Shawn P. Cloughesy, Administrative Law Judge.
PROCEDURAL HISTORY
This case alleges a public employer's refusal to process an employee organization's
petition for recognition and subsequent appeal
of
the public employer's refusal to the Civil
Service Commission under a local employer-employee relations rule. The employer denies
committing any unfair practices; as an affirmative defense, it contends that it is not the public
employer
of
the employees the employee organization seeks to represent.
On December 13, 2006, the Union
of
American Physicians & Dentists (UAPD) filed an
unfair practice charge against the County
of
Ventura (County). On March 19, 2007, UAPD
withdrew the allegations that the County violated MMBA section 3543.S(a) and (b). On
March 19, 2007, the Office
of
the General Counsel
of
the Public Employment Relations Board
(PERB) issued a complaint alleging that the County violated the Meyers-Milias-Brown Act
(MMBA or Act) by refusing to process UAPD's petition for recognition on the basis that it was
not the public employer of the physicians providing patient care at the outpatient medical

clinics that UAPD sought to represent, and refusing to process UAPD's appeal
of
the
County's
decision to the County Civil Service Commission pursuant to a local employer-employee
relations rule. It
is
alleged that, by these actions, the County violated MMBA sections 3502,
3506, 3507(c), 3507. l(c), and 3509(b), and PERB Regulation 32603(a), (b), and (g). 1
On April 3, 2007, the County answered the complaint denying any violation
of
the
MMBA, local employer-employee relations rules, or PERB Regulations, and affirmatively
alleging that the charges and relief requested were not within the subject matter jurisdiction
of
PERB as it was not the public employer
of
the employees. An informal settlement conference
was conducted on May 2, 2007, but the case was not resolved.
On June 12, 2007, the County filed a motion to dismiss the complaint on the basis that
the County was not the clinic physicians' employer; the current contracts between the County
and the private corporations operating the outpatient medical clinics were substantially revised
to eliminate any perception that the County is the clinic physicians' employer; and PERB did
not have jurisdiction over the dispute
as
the employer was a private corporation. UAPD filed
its opposition to the motion to dismiss on June 15, 2007, and the County filed its reply on
June 22, 2007. On June 27, 2007, Chief Administrative Law Judge (ALJ) Bernard McMonigle
denied the motion to dismiss as the issues addressed were more properly reserved for formal
hearing. 	On July 19, 2007, Chief ALJ McMonigle transferred the hearing to the undersigned
for formal hearing and determination.
On October 16 and 17, 2007, formal hearing was held. At the end
of
the last day
of
hearing, post-hearing briefs were scheduled for submission on December 14, 2007. On
November 20, 2007, the ALJ requested the pmiies to address a recent PERB joint employer
1 Unless otherwise indicated, all statutory references are to the Government Code.
MMBA is codified at Government Code section 3500 and following. PERB Regulations are
codified at California Code· of Regulations, title 8, section 31001 and following.
2

decision (San Jose/Evergreen Community College District (2007) PERB Decision No. 1928,
issued November 16, 2007). On December 11, 2007, the Charging Parties in that Decision
filed a petition for writ
of
extraordinary relief with the Sixth Appellate District Court
of
Appeal pursuant to Government Code sections 3509.S(b) and 3542, and the appellate court
now has "jurisdiction
of
the proceeding."
FINDINGS OF FACT
Jurisdiction
The County is a public agency within the meaning
of
MMBA section 350l(c).
UAPD
is an employee organization within the meaning
of
MMBA section 350l(a).
Background
The County Health Care Agency (HCA) oversees inpatient and outpatient medical
services to the uninsured and underinsured (Medi-Cal covered)
of
the County. The HCA acts
as an umbrella agency over a number
of
County health care departments including the Ventura
County Medical Center (VCMC). The VCMC administration oversees the VCMC Hospital
(Hospital) and the VCMC Ambulatory Care Department (Ambulatory Care).
The Hospital is licensed as a general acute care hospital by the California Department
of
Health Services and accredited by the Joint Commission on Accreditation
of
Healthcare
Organizations (JCAHO). The licensing and the accrediting agencies each have their own
regulations/standards with which the Hospital must comply to maintain its licensure and
accreditation status. Pursuant to licensure requirements, the Hospital has a hospital privilege
system where a medical practitioner must possess hospital privileges to treat patients at the
hospital.
3

The Hospital's license also authorizes providing outpatient services in other facilities. 2
These outpatient services are administered by VCMC Ambulatory Care which oversees
numerous satellite ambulatory care clinics (Clinics) located throughout the County to provide
primary care to County residents. Those Clinics include the Conejo Valley Family Care
Center; Las Islas Family Medical Group; Magnolia Family Health Center; Mandalay Bay
Children's Medical Center; Moorpark Family Care Center; Pediatric Diagnostic Center; Piru
Family Medical Clinic; Santa Paula Medical Clinic; Santa Paula Medical Clinic-West; Sierra
Vista Family Medical Center; and West Ventura Medical Clinic. The Clinics are viewed as an
integral part of the healthcare safety net provided to County residents.
Since the Clinics derive their licensure from the Hospital, all medical practitioners who
provide outpatient health care services to patients must obtain privileges through the hospital
privilege system set forth in the Medical Staff of VCMC Bylaws (Medical Staff Bylaws). 	The
Medical Staff Bylaws explicitly define VCMC as including not only the inpatient hospital, but
also the Clinics. The patients of the Clinics are defined to be the patients of VCMC and the
license that it operates under. The "medical staff," under the bylaws, include all those
physicians that hold privileges to attend patients at VCMC. While the governance of the
Medical Staff is conducted by a mixture of elected medical staff and HCA/VCMC
administration, the final authority regarding the decision to obtain or revoke privileges belongs
to the "Governing Board," the County Board of Supervisors. The privilege revocation appeal
process is elaborate and requires a hearing.
Each Clinic is operated by a private corporation (Clinic Corporation) which has a
contractual agreement with VCMC to provide primary care to its patients in accordance with
Extending the Hospital's licensure to outpatient facilities allowed the HCA to obtain
federal and state program monies to fund these facilities.
4

the requirements of the Hospital's licensure and accreditation.3 Each Clinic Corporation
employs a Clinic Medical Director, who usually solely owns the corporation and contracts with
physicians through employment agreements to be employed at the Clinics. Each Clinic
Corporation must accept Medi-Cal, Medicare, private insurance, and direct pay patients.
The Clinic Medical Director is responsible for overseeing the delivery of health care to
the patients serviced and operates the individual Clinics in compliance with the agreement with
VCMC. Each month, the Clinic Medical Directors meet as a group with the VCMC
Ambulatory Care administration where quality assurance, licensure, and accreditation
regulations/standards for the Hospital and Clinics are discussed.
Since the end of March/beginning of April 2006, Paul Lorenz (Lorenz), the Deputy
Director of the Ambulatory Care, provided overall administrative oversight to the Clinic
system. Lorenz was assisted by Ambulatory Care Medical Director, Dr. Robert Gonzales
(Dr. Gonzales),4 and two operations managers, Janette Duchai (Duchai) and Kim Graves
(Graves). Dr. Gonzales acted as a resource and medical advisor to the Clinic Medical
Directors. Graves monitored the financial standing and performance of Ambulatory Care and
Duchai assured that the day-to-day operations of the Clinics remained intact.
Agreements between VCMC and Clinic Corporations
At the time of UAPD's request for recognition, the most current agreements between
VCMC and the Clinic Corporations approved by the County Board of Supervisors were
executed between January and July 2005 and were almost identical. According to the
3 While the Clinic may be operated by the private corporation, the Hospital remains the
"licensed operator" of the Clinic.
4 Dr. Gonzales was not a County civil service employee, but an independent contractor.
He did not report to Lorenz on matters of medical policy and the determination of whether the
Clinics were operating within the appropriate standard of care of medicine to satisfy the
JCAHO.
5

agreements, the Clinic Corporations were to identify themselves by the name
of
the
VCMC
clinic and that they were "a clinic
of
the Ventura County Medical Center." The Clinic
was
considered to be a "unit"
of
VCMC. In summary, the Clinic Corporations were to operate the
Clinics by providing the professional medical services to patients in compliance with
VCMC's
governing body, VCMC hospital administrator, the Medical Staff Bylaws, and the
regulations/standards applicable to VCMC's licensure and accreditation.
The Clinic Corporations were to prepare annual operating budgets jointly with and
subject to the approval
of
VCMC, which included monthly projections
of
planned "allowable"
operating expenses. The budget included such budgetary allocations as physicians
compensation. The agreement specified that the physicians hired to provide medical services
at the Clinic were subject to the approval
of
VCMC. The Clinic Corporations were not to pay
its physicians more than Ventura County prevailing rates without VCMC approval. VCMC
owned all revenues and accounts receivable generated by the Clinics and set the fee levels for
services to be provided. VCMC provided monthly cash advances to the clinic so that the
Clinic Corporation could pay for its "allowable" operating expenses. Those allowable
expenses were set forth in the agreement and were to be paid out
of
the Clinic's operating
funds. 	VCMC also directly paid for biohazardous trash removal, general liability insurance,
professional liability insurance, telephone services, and computer access. Depending on the
Clinic, the maximum annual operating advances were not to exceed either $500,000 or
$1,000,000.
VCMC leased, repaired, and maintained the actual physical Clinic facilities and
equipment. The Clinic Corporation was to use those premises/equipment only for the
treatment of Clinic patients unless VCMC had approved otherwise. VCMC also agreed to
provide support services or reimbursement for housekeeping, laundry, utilities, medical record
6

forms, facsimile services, computer systems, software, parking, laboratory services, radiology
services, physical therapy services, occupational therapy services, pharmaceuticals, and
medical supplies. VCMC also agreed to provide the Clinic physicians with educational
opportunities meeting in-service education requirements.
The VCMC agreement also dictated that the Clinic Corporations were to have
written
employment agreements with its physicians specifying compensation and performance criteria.
The physician employment agreements were to be submitted to VCMC for advance approval
if
a Clinic Corporation were to request that a physician's compensation be allowed as expenses.
All revenue received by the Clinic Corporations in excess
of
allowable expenses were
considered the property
of
VCMC.
The Clinic Corporations were to provide a minimum
of
two physicians at any time with
at least ten half-day clinics per week with an average
of
ten patient visits per each half-day.
The Clinics were also to provide physicians that would participate in a "shared call" pool so
that all hospital admission and other in-patient questions as well as off-hour Clinic patient
questions could be answered.
The Clinic Corporations were responsible for paying the Clinic physicians' payroll
taxes and benefits. Various bookkeeping and statistical services were to be reported to VCMC
such as providing monthly reports on payroll, number
of
clinical patient visits, gross revenues,
physician time studies for Medicare, financial statements (balance sheet, income statement and
statement of cash flows), and other accounting statements.
While the Clinic Corporation could independently discipline its physicians, VCMC had
its own contractual disciplinary track regarding Clinic physicians. If VCMC believed the
physician failed to follow VCMC policy and procedures, was disruptive and antagonistic,
and/or performed other acts inconsistent with the proper functioning of the Clinic or VCMC,
7

VCMC merely had to send a "Cause Letter" to the Clinic Corporation specifying the "cause"
for discipline. If VCMC was not satisfied with the remedial action taken by the Clinic
Corporation, the Clinic Corporation had to remove the physician from employment. At all
times, VCMC maintained the authority to take whatever action was reasonably necessary to
operate the Clinic under VCMC licensure and governance.
Agreements between Clinic Corporations and Physicians
A number of physician employment agreements with the Clinic Corporations were
submitted as exhibits; they were executed around April 2006 and had uniform terms with slight
variations on compensation. The physicians were expected to comply with all of the VCMC
regulatory requirements. The physician's work schedule could change at the request of the
physician with approval of the Clinic Corporation. The Clinic Corporations could terminate its
physicians without notice and for cause. The physician employment agreements also allowed
the agreement to be modified by agreement of both physician and the Clinic Corporation.
The Clinic physician was to conduct at least nine half-days of scheduled patients visits
a week. The base pay fluctuated from $7,414.67 to $8,333.34 for which the physician had to
average 18 or 20 patient visits a day. 5 All physician employment agreements required Clinic
physicians to be paid $260 per weekday and $500 per weekend for participating in shared call
work. Each of the physicians had a provision for "incentive-based compensation" based on the
amount of Work Relative Value Units (RVUs) completed by the physician that month. 	The
RVU incentive compensation system assigned a numeric value to a specific medical service
provided to the patient. The more RVUs the physician amassed, the higher the bonus received
as broken down into quantity segments on a table grid in the agreement. The grid reflected the
5 Some physician employment agreements required 18 patient visits a day and some
required 20.
8

amount of RVU s worked and the monetary value bonus assigned to that production level
changed from one employee to the other. After six months, the incentive-based compensation
structure would be re-examined and individualized by the Clinic Corporations with input from
the VCMC Ambulatory Care administration. The agreement usually contained a compensation
enhancement for Spanish language proficiency. The vacation leave and sick leave provisions
were uniform: three weeks for less senior physicians and up to five weeks for the most senior.
Various physicians proposed changes to their physician employment agreements. 	Some
changes were not approved by Ambulatory Care even when the Medical Director had voiced
support for the change. One physician who specialized in deliveries and caesarean sections
was able to obtain extra pay in her initial employment agreement in July 2001 due to her
experience when she approached Dr. Gonzales directly as to the validity of such an increase.
Another physician after speaking with Dr. Gonzales directly was able to work out a student
loan matching repayment program from December 2003 to December 2006. When one of the
physicians wanted his time reduced to 3/4 time, it was finally approved as a job share position
by Dr. Gonzales and not the physician's Medical Director.
VCMC Policies and Practices Between Ambulatory Care and the Clinics
VCMC issued various employment policies to the Clinics which regulated dress, hair,
tattoos, jewelry, uniform style, and personal grooming. 	Other personnel policies issued by
VCMC to Clinics regulated the medical treatment of fellow employees. One of the Medical
Directors testified that he chose to adopt these policies.
The practice of operating the Clinics and the relationships with VCMC and Clinic
physicians were not that different than set forth in the agreements with only a few exceptions.
Regarding the hiring of physicians, the VCMC website posted "physician opportunities" for
physician openings at the Clinics. One Medical Director hired his physicians by indicating his
9

need to Dr. Gonzales who then shared with him the names of physicians which Dr. Gonzales
felt best met the Clinic's need. The Medical Director would interview the candidate and
decide whether to hire the candidate or not. Other physicians who were hired between the
years of 2000 and 2004, testified that in general they were offered their positions directly by
Dr. Gonzales and were then interviewed by the corresponding Medical Director. Some
physicians were recruited by Dr. Gonzales while they were still serving as a resident with the
Hospital. Occasionally, the Medical Directors also had some physician applicants apply to
them directly.
Medical Directors have taken disciplinary/corrective action against the Clinic
physicians. 	On the other hand, VCMC Ambulatory Care administration has met with Clinic
physicians outside the presence of their Medical Directors to discuss productivity.
Occasionally, Medical Directors have offered variations of the physician employment
agreements to a physician such as offering family coverage where normally its coverage had to
be supplemented by the physician.
Every year all of the Clinics operated at a loss. The Clinics were allowed to submit a
justification for an advance if a Clinics' revenues did not cover their expenses. Some clinics
just absorbed the losses themselves.
Request for Recognition and Appeal to Civil Service Commission
The County has its own "Employer/Employee Relations" rules (sections 2001 et seq.)
found in the County Personnel Rules and Regulations. Those rules include unit determinations
(section 2008) and the acknowledgement of employee organizations (section 2009).
Section 2009 provides in part:

Formal Acknowledgement of Recognized Employee
Organizations:
Any employee organization seeking to obtain or retain formal
acknowledgement by the County as a recognized employee
organization or seeking to register as an employee organization, or
filing its petition for certification, shall furnish the Director-Human
Resources with:
A. Its name and mailing address.
G. A petition for certification must be accompanied by
proof of employee approval equal to at least 30 percent of
the employees within the proposed unit. Proof may be
shown by payroll dues deductions, membership cards,
signed authorization cards or petitions or statements of
intent signed by the employees.
H. Description of unit or units requested. The Director-
Human Resources shall file such description with the
Board.
I. Upon receipt of the aforesaid documents from an
employee organization, the Director-Human Resources
shall within 30 days establish a unit or units based upon the
criteria as set forth in Section 2008 of this Article6 and shall
issue a certificate to the employee organization a copy of
which shall be filed with the Board, setting forth such unit
or units, provided that verification of the proof submitted
established that a majority of the employees involved have
designated such employee organization to represent them.
J. If the applying employee organization or any other
employee organization desires to prote[s]t the
determination of the Director-Human Resources, it shall
within 10 days file its protest with the Director-Human
Employer/Employee Relations section 2008 "Units" sets forth the determination of
employee units in terms of setting forth rights of professional employees to belong to their own
unit as well as setting forth the various factors to be considered in determining a unit such as
community of interest, largest feasible units, history of employee relations in the unit within
County and similar public employment, the efficient operation of the County, and the effect of
the classification structure.
11

Resources, requesting a review by the Commission. 7 The
Director-Human Resources may request review upon his
own motion.
K. The Commission may sustain, modify or reverse the
unit determination of the Director-Human Resources. It
may then conduct an election in accordance with the rules
and procedures of the State Conciliation Service and certify
the results therein, or the matter may be returned to the
Director-Human Resources for appropriate action.
(Emphasis added.)
On October 6, 2006, Regional Administrator of UAPD, Joe Bader (Bader), and Lead
Organizer of UAPD, Jorge Rodriguez (Rodriguez), wrote the County's Chief Deputy
Executive Officer John Nicoll (Nicoll) demanding:
In accordance with the provisions of Section 2009 of the Ventura
County Personnel Rules and Regulations and applicable state
law, the Union of American Physicians and Dentists (UAPD)
hereby demands recognition as the exclusive representative for all
regularly employed full and part-time primary care physician
providers working at the various clinics contracted with the
Ventura County Healthcare Agency excluding supervisors, and
irregularly employed and/or on-call employees. We are filing
this demand letter within the window period for filing
certification petitions as defined in Section 2010 of the Ventura
County Rules and Regulations. These physicians are currently
unrepresented and not covered directly or indirectly by the MOU
between the Service Employees International Union and the
County of Ventura or any other MOU. We believe that the
control exercised by the County over the salaries, benefits, and
working conditions of the primary care physicians working with
the contractors who run the outpatient clinics with the Ventura
County, the legal employer of these physicians ....
. . . We are willing to submit proof of our support as the majority
representative for the above-described bargaining unit to a neutral
party for verification, such as the State Mediation and
Conciliation Service ....
Employer/Employee Relations section 2003(D) defines "Commission" as "Civil
Service Commission-Board of Review of the County of Ventura."
12

On
October 31, 2006, Nicoll responded to UAPD by denying its request for
recognition
as the Clinic physicians which UAPD sought to represent were not employees
of
the
County.
Nicoll further explained:
As we previously explained to you, the County does not employ
any employees in the facilities listed in your letter. The County's
Health Care Agency contracts with a number
of
contractors to
operate clinics within the geographic area
of
the County,
including some or all
of
those listed in your letter. The
physicians working in those clinics are the employees or
subcontractors
of
the clinic operator, not the County. Because the
persons you seek to represent are employees
of
subcontractors
of
the clinic at which they work, your request for recognition should
be directed to the operators
of
those clinics. Accordingly, the
County denies your request for recognition.
On November 8, 2006, Bader replied to Nicoll and stated that UAPD believed that:
[T]he control exercised by the County over the salaries, benefits
and working conditions
of
the Physicians working at these
clinics, makes it, and not the clinic operators, the legal employer.
In accordance with Section 2009
of
the Personnel Rules and
Regulations
of
Ventura County, the UAPD appeals your decision
denying recognition to the UAPD as the exclusive representative
of
all regularly employed full and part-time primary care
physician providers working at the various clinics contracted with
the Ventura County Healthcare Agency,
...
On December 8, 2006, Nicoll responded to Bader's appeal by writing:
We have reviewed your letter
of
November 8, 2006. It is the
County's position that the unit for whom you are seeking
recognition consists
of
individuals and jobs that are not County
[e]mployees or positions.8 As such[,] they are not covered by the
Employer/Employee Relations section 2003(U) defines "Public Employee and
Employee" as:
Public Employee and Employee - means any person employed by
the County excepting those persons elected by popular vote or
appointed to office by the Governor of this State.
13

Personnel Policies and Regulations, nor are they under the
jurisdiction
of
the Civil Service Commission.
We therefore respectfully reject the request to have the matter
referred to the Commission.
After receiving the rejection letter from Nicoll, UAPD filed the instant unfair practice
charge
on December 13, 2006.
New Operation Agreements between VCMC and Clinic Corporations
In May 2007, VCMC and its Clinic Corporations entered into new agreements for the
operations
of
the Clinics. The purpose
of
the changes in the new agreement was to remove the
sections
of
the prior agreements upon which the unfair practice charge was filed. The
ALJ
ruled that the new agreements would only be admitted to show that subsequent to the petition
for recognition, the agreements had changed. The specific changes to the agreement and
whether they changed the labor relations landscape
of
whether VCMC was the employer
of
the
physicians employed at the Clinics was irrelevant as the new agreements did not reflect
the
status
of
the employment relationship at the time the petition for recognition was filed
with
the
County.
ISSUES
1.	
Is the County a joint employer, along with the Clinic Corporations,
of
the Clinic
physicians?
2. 	Did the County violate its local employer-employee relations rules by refusing
to process UAPD's appeal
of
its determination to deny recognition to the Civil Service
Commission?
County Personnel Rules and Regulations section 243 defines "Position" as:
Position: An aggregation of tasks and responsibilities requiring
the services of one individual.
14

CONCLUSIONS OF LAW
The existence
of
an employer-employee relationship set forth in the MMBA
is
defined
by the Act itself and by the case law interpreting the Act. A "public agency" and "public
employee" are defined by the MMBA section 3501(c) and (d) as:
(c) Except as otherwise provided in this subdivision, "public
agency" means every governmental subdivision, every district,
every public and quasi-public corporation, every public agency and
public service corporation and every town, city, county, city and
county and municipal corporation, whether incorporated or not and
whether chartered or not. As used in this chapter, "public agency"
does not mean a school district or a county board
of
education or a
county superintendent
of
schools or a personnel commission in a
school district having a merit system
as
provided in Chapter 5
(commencing with Section 45100)
of
Part 25 and Chapter 4
(commencing with Section 88000)
of
Part
51
of
the Education
Code or the State
of
California.
(d) "Public employee" means any person employed by any public
agency, including employees
of
the fire departments and fire
services
of
counties, cities, cities and counties, districts, and other
political subdivisions
of
the state, excepting those persons elected
by popular vote or appointed to office by the Governor of this
state. (Emphasis added.)
UAPD contends that the County is a 'joint employer"
of
the Clinic physicians. PERB has
adopted the following test to determine joint employer status:
"[W]here two or more employers exert significant control over the
same employees -- where from the evidence it can be shown that
they share or co-determine those matters governing essential terms
and conditions
of
employment -- they constitute 'joint
employers.'" (United Public Employees v. Public Employment
Relations Board (1989) 213 Cal.App.3d 1119, 1128, citing to
NLRB v. Browning-Ferris Industries, Etc. (3rd Cir. 1982)
691 F.2d 1117, 1124 (Browning-Ferris).)
Additionally, Browning-Ferris held that: "[A] finding that companies are 'joint employers'
assumes in the first instance that companies are 'what they appear to be' - - independent legal
entities that have merely 'historically chosen to handle jointly
...
important aspects of their
15

employer-employee relationship." (Browning-Ferris,
p.
1122.) The entire record must be
examined in light
of
the statutory language and the Board
is
not bound by contract language
in
determining the level
of
control over the employee. (Ventura County Community College
District (2003) PERB Decision No. 1547,
p.
21). Service Employees International Union v.
County
of
Los Angeles (1990) 225 Cal.App.3d 761, 769 further defined the employment
relationship as:
An employee is an individual who performs services subject to
the right
of
the employer to control both what shall be done and
how it shall be done and an employer is a person for whom an
individual performs services
as
an employee. 	[Citations.] The
essential characteristic
of
employment relationship is the right to
control and direct the activities
of
the person rendering service, or
the manner and method in which the work is performed.
[Citations]. (Emphasis added.)
For the most part, the non-disciplinary day-to-day activities
of
patient care were under
the control
of
the Medical Directors. They were responsible for ensuring that the physicians
complied with the regulations/standards
of
the Medical Staff Bylaws and the licensing and
accrediting agencies. Both the Medical Directors and Ambulatory Care exercised authority to
discipline/terminate Clinic physicians and in that way Ambulatory Care exercised significant
control over patient care. By screening Clinic physicians during the hiring process,
Ambulatory Care was also able to exercise significant control over the delivery
of
patient care
aspect
of
the Clinics. Lastly, Ambulatory Care exercised significant control over the Clinic
physicians in the delivery
of
patient care by setting forth a performance requirement
of
a
minimum number of patient visits to be completed in a half-day shift.
Other than the day-to-day medical care oversight and the terms and conditions
of
employment of the Clinic physicians related to that oversight, VCMC/Ambulatory Care
exercised significant control over the other terms and conditions of the Clinic physicians'
16

employment. Ambulatory Care's control over a number
of
non-patient care areas such as
the
Clinic's budget (prepared jointly and subject to approval
of
Ambulatory Care), the individual
Clinic physician's employment agreement (subject to approval
of
Ambulatory Care), the
revenues, the fees to be charged Clinic patients, and the restriction on the use
of
the facilities
and equipment made it more than a significant player in the control
of
the Clinic physicians'
terms and conditions
of
employment regarding non-patient care. 	Each
of
these areas restricted
the autonomy
of
the Clinic Corporations to act independently and have its own control
over
non-patient care terms and conditions
of
employment
of
the Clinic physicians and the
"bottom
line"
of
the Clinic Corporation. 	The control
of
these areas also impacted any monetary
compensation that a Medical Director could offer a Clinic Physician.
Even with Ambulatory Care's general fiscal control over the Clinic Corporations,
Ambulatory Care also had specific control over the salaries
of
the Clinic physicians.
	Not only
was a Medical Director restricted from paying a Clinic physician above the prevailing
wage
without Ambulatory Care approval, but the individual physician employment agreements for
the Clinic physician must be approved by Ambulatory Care. It is no surprise that some
of
the
physicians started dealing directly with Dr. Gonzales over issues such as specialty pay
(deliveries and caesarean sections), student loan payback, and time base reduction.
Lastly, Ambulatory Care exercised significant control over the Clinic physicians
in
those ancillary terms
of
employment such as educational opportunities as well as prescribing a
guideline for dress and grooming.
Based on Ambulatory Care's significant control over the subject matters described
above, it is concluded that it is a joint employer
of
the Clinic physicians. As Ambulatory Care
was a joint employer of the Clinic physicians, it had a duty to process the petition for
recognition under its local employer-employee relations rules and therefore unreasonably
17

withheld recognizing UAPD for purposes
of
processing a petition for recognition in violation
of
MMBA section 3507(c), constituting an unfair practice under MMBA section 3509(b)
and
PERB Regulation 32603(g). The County's conduct also constitutes a derivative violation
of
interfering with the public employees' rights to participate in the activities
of
an employee
organization
of
their own choosing for the purpose
of
representation on all matters
of
employer-employee relations which violated MMBA section 3502 and 3506 and constituted an
unfair practice under MMBA section 3509(b) and PERB Regulation 32603(a).
It
is not
found
that the County violated MMBA section 3507.l(c).	
It
was premature to determine whether the
County should have granted UAPD exclusive or majority jurisdiction as UAPD never got
that
far in the process, and the issue is beyond the factual scope
of
the complaint.
Refusal to Process UAPD's Appeal to County Civil Service Commission
It
is uncontested that Nicoll refused to process UAPD's November 8, 2006 appeal
of
the County's denial
of
recognition to UAPD as exclusive representative
of
the Clinic
physicians to the County Civil Service Commission. The County refused this request as it
contended the employees/positions in question were not County employees and therefore did
not fall under the jurisdiction
of
the County Civil Service Commission.
A plain reading
of
the language
of
Employer/Employee Relations Section 2009(H)
through (K) indicates that the only issue that can be appealed to the County Civil Service
Commission is the unit determination itself, and not whether the County denied recognition
of
UAPD as the exclusive representative
of
the Clinic physicians. As the unit determination had
not yet been made, the County did not violate its own local employer-employee relations rules
when it refused to process UAPD's appeal to the County Civil Service Commission.
18

REMEDY
Government Code section 3541.S(c), incorporated within MMBA sections 3509(a)
and
(b ), 9 authorizes PERB:
to issue a decision and order directing an offending party to cease
and desist from the unfair practice and to take such affirmative
action, including but not limited to the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
As a remedy for non-recognition, UAPD requests that PERB order the creation
of
a
bargaining unit and either order recognition for that bargaining unit or order that a
representational election be conducted for that bargaining unit. The County argues that its new
agreements executed in May 2007 change the employment relationships with the Clinic
physicians and therefore affect the remedy which UAPD requests.
The denial
of
the petition for recognition came approximately five months before the
changes in the contract. During that window period, the recognition process could have been
completed. Because the violation
of
non-recognition occurred first, it is only logical that the
remedy to that violation should be completed before a new employment relationship is
considered. On the other hand, the remedy should not go further than making the UAPD
whole.
It is therefore appropriate to order the County to take the following affirmative action.
Within 30 workdays following the service
of
a final decision in this case, the County is
9 Section 3509(a) provides that the powers and duties of PERB described in
Government Code section 3541.3 shall also apply to the MMBA, and shall include the
authority of subdivisions (b) and (c ). Section 3509(b) describes the unfair practice jurisdiction
of PERB. Government Code section 3541.3(i) empowers PERB to investigate unfair practice
charges, and to take any action and make determinations as PERB deems necessary to
effectuate the policies of this chapter.
19

directed to process UAPD's request for recognition in accordance with its local
Employer/Employee Relations rules (section 2008 and 2009) and the MMBA.
It is not appropriate to direct the County to recognize UAPD and conduct an election as
these remedies are premature. The establishment of a bargaining unit was not litigated or set
forth in the complaint, and an appropriate unit has not been decided by the County's own local
rules. Under the legislative scheme set forth in the MMBA and PERB Regulations,
recognition, elections and unit determinations are to be resolved according to reasonable rules
adopted by the public agency (MMBA sections 3507(a)(3) and (4), and 3507.l(a)). Challenges
to local rules may be pursued later as an unfair practice charge (MMBA section 3509(b) and
PERB Regulations 32602 and 32603(g)) in that the County allegedly violated its own rule or
the rule itself was violative of the MMBA.
It is also appropriate that the County be ordered to post a notice incorporating the terms
of the order at all locations in the County where notices to public employees are customarily
posted for employees represented by employee organizations as well as the Clinics. Posting
such a notice, signed by the authorized agent of the County, will provide employees with
notice that the County has acted in an unlawful manner, is being required to cease and desist
from such activity, and will comply with the order. It effectuates the purposes of the MMBA
that employees be informed of the resolution of this controversy and the District's readiness to
comply with the ordered remedy. 	(Placerville Union High School District (1978) PERB
Decision No. 69.)
PROPOSED ORDER
Based on the foregoing findings of fact and conclusions of law, and the entire record in
the case, it is found that the County violated the MMBA when it refused to processUAPD's
petition for recognition. By this conduct, the County violated MMBA sections 3507(c),
20

3509(b), and PERB Regulation 32603(g), and interfered with employee rights in violation of
MMBA sections 3502, 3506 and PERB Regulation 32603(a). All other allegations are
dismissed.
Pursuant to section 3509(a) and (b) of the Government Code, it is hereby ORDERED
that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to process UAPD's petition for recognition according to its
local employer-employee relations rules.
2. 	Interfering with the Clinic physicians' right to participate in the activities
of an employee organization of their own choosing for the purpose of representation on all
matters of employer-employee relations.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Within thirty (30) workdays from service of the final decision, process
the request for recognition by UAPD according .to the County's Employer/Employee Relations
Rules.
2. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations 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 District, indicating that it will comply with the terms of this Order. 	Such posting shall be
maintained for a period of thirty (30) consecutive workdays. 	Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced or covered with any other
material.
21

3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on UAPD.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, secs. 32135(a) and 32130; see also Government Code
sec. 11020(a).) A document is also considered "filed" when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135(d),
provided the filing party also places the original, together with the required number of copies
and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b), (c) and (d); see
also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
22

Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. 	Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Shawn Cloughesy
Administrative Law Judge
23