County of San Bernardino (PERB 2556M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 721,
Charging Party, 	Case No. LA-CE-923-M
v. 	PERB Decision No. 2556-M
COUNTY OF SAN BERNARDINO, 	March 6, 2018
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by Monica T. Guizar and Jacob J. White,
Attorneys, for Service Employees International Union Local 721; Renne Sloan Holtzman Sakai
by Timothy G. Yeung and Erich W. Shiners, Attorneys, for County of San Bernardino.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on the County of San Bernardino’s (County) exceptions to a proposed
decision (attached) by an administrative law judge (ALJ). The ALJ found that the County
violated the Meyers-Milias-Brown Act (MMBA)1 and the County’s Employee Relations
Ordinance (ERO) by: (1) prohibiting non-employee representatives of Service Employees
International Union, Local 721 (SEIU) from accessing non-working areas of County facilities;
and (2) photographing County employees meeting with SEIU organizers.2 The County excepts
to the first conclusion, contending that SEIU had no right of access under the MMBA because
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
2 The ALJ also dismissed allegations that the County unlawfully favored another
employee organization over SEIU. SEIU has not excepted to the dismissal of those
allegations, so we do not consider them here.

it was not a recognized employee organization. It excepts to the second conclusion,
contending that the photographing did not interfere with employee rights.
The Board itself has reviewed the administrative hearing record in its entirety and
considered the County’s exceptions and SEIU’s responses thereto. The record as a whole
supports the ALJ’s factual findings, and the proposed decision is well reasoned and consistent
with applicable law. Accordingly, the Board affirms the ALJ’s rulings, findings and
conclusions of law and adopts the proposed decision as the decision of the Board itself, subject
to the discussion of the County’s exceptions below. We also modify the order to require
electronic posting of the notice to employees, in accordance with our decision in City of
Sacramento (2013) PERB Decision No. 2351-M.
SUMMARY OF FACTS
The facts relevant to the County’s exceptions are not in dispute. At all times relevant to
this case, SEIU was an employee organization within the meaning of MMBA section 3501,
subdivision (a), but not a recognized employee organization within the meaning of MMBA
section 3501, subdivision (b). In late 2013, SEIU began an organizing campaign aimed at
employees in some of the eight County bargaining units represented by the San Bernardino
Public Employees Association (SBPEA). As part of its campaign, SEIU dispatched organizers
and rank-and-file members to speak with employees at various County facilities, in an effort to
persuade them to decertify SBPEA.
The only provision of the County’s ERO that mentions access by employee
organizations of any kind is section 13.0213(d), which states:
Access to County work locations and the use of County paid-
time, facilities, equipment, hardware or software and other
resources by exclusive recognized employee organizations shall
be authorized only to the extent provided for in a memorandum of
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understanding and/or applicable administrative procedures and
shall be limited to activities pertaining directly to the employer-
employee relationship and shall not interfere with the efficiency,
safety and security of County employees or County operations.
Access to and use of County paid time, facilities, equipment and
other resources shall not be authorized for such activities as: any
that violates County Policy, soliciting membership, soliciting
business by or for any non-County sponsored/sanctioned
company, campaigning for office, selling insurance plans,
organizing elections, or other similar activities.
(Emphasis added.)
On May 9, 2014, Andrew Lamberto, the County’s director of human resources, issued a
memorandum titled “CAMPAIGN/SOLICITATION ACTIVITIES”to department heads and
other management staff. The memorandum stated in relevant part:
Over the last several months the County bargaining team has
been negotiating with [SBPEA] on a successor Memorandum of
Understanding. On April 24, 2014, a Tentative Agreement was
reached between the parties, and SBPEA is currently reaching out
to their membership to communicate the details of the
Agreement.
In an aggressive effort to disrupt those communications, certain
organizations, including the Service Employees International
Union (SEIU), have been visiting various County facilities to
solicit County employees to vote no on the Tentative Agreement.
As a reminder, the following is the County’s position with respect
to access for all campaign/solicitation activities:
i 	There will be no access allowed by any organization
representatives in non-public areas for purposes of campaign
or solicitation activities, including access to bulletin boards
reserved for County use or for employee organizations.
“Non-public areas”include, but are not limited to, offices,
employee work sites, break rooms, employee lunch rooms,
and employee parking lots.
i 	Campaign/solicitation activities may not occur in work areas,
including the distribution and/or posting of literature, and
must not disrupt County business. “Work areas”would
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include offices, employee work sites, break rooms, employee
lunch rooms, and employee parking lots.
i 	County employees that are off duty shall have no greater
access to non-work areas for the purpose of engaging in
campaign/solicitation activities than other off duty County
employees who are not engaging in such activities.
The County will act to insure the continued delivery of public
services. As managers and supervisors, you have an important
role to play. While maintaining a neutral role, you must work to
insure that service to the public is not disrupted by campaign/
solicitation activities. Further, you must act to insure that your
employees adhere to the limits placed on such activities.
On at least two occasions in May 2014, SEIU organizers entered non-working, non-
public areas of County facilities. On the first occasion, May 8, 2014, Robin Feldhaus
(Feldhaus), a County manager, asked the SEIU organizers to leave. When they did not do so,
Feldhaus posted a security guard next to the area. She later returned and used her cell phone to
take a photograph of the organizers speaking with employees. When the SEIU organizers
objected, Feldhaus deleted the photograph immediately and told one of the organizers, Adriel
Peterson (Peterson), that she had done so, offering to show him her phone. Feldhaus left the
area, and the SEIU group eventually left as well. On the second occasion, May 22, 2014, three
SEIU organizers were asked to leave an employee breakroom and were ultimately escorted
from the premises.
DISCUSSION
I. 	Access by Unrecognized Employee Organizations
The ALJ concluded that the County’s policy prohibiting access to non-work areas for
the purposes of campaign or solicitation activities, as well as its enforcement of that policy,
interfered with SEIU’s right of access to County facilities under the MMBA. The County
excepts to this conclusion, arguing that “unrecognized”employee organizations— such as
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SEIU— have no access rights under the MMBA, that is, unrecognized organizations have only
the same right of access as does the public at large.3 We disagree. Without determining the
contours of access for unrecognized organizations in every context, we conclude that in this
case, the County violated the MMBA by denying SEIU access to non-working areas of the
County’s premises to solicit for union membership and distribute literature to employees
during their non-work time.4
The various labor relations statutes within PERB’s jurisdiction do not treat the subject
of employee organization access rights uniformly, but we find no basis in our case law or in
the purposes of the MMBA that supports the County’s contention that non-recognized
organizations have no right of access under the statute. Both the Educational Employment
Relations Act (EERA)5 and the Higher Education Employer-Employee Relations Act
(HEERA)6 expressly grant all employee organizations a “right of access at reasonable times to
areas in which employees work.” (EERA, § 3543.1, subd. (b); HEERA, § 3568.) The
Ralph C. Dills Act (Dills Act),7 on the other hand, contains no express access right.
3 As the County asserts in its exceptions: “. . . unrecognized employee organizations
have no statutory right to access non-public areas of a public agency employer’s premises.”
(Exceptions, p. 1.)
4 For convenience, this decision refers to this right as a “right of access”or an “access
right.” Our use of this phrase is not intended to mean that unrecognized employee
organizations are necessarily entitled to the same access as recognized or exclusively
recognized employee organizations. (Cf. F & P Growers Assn. v. Agricultural Labor Relations
Bd. (1985) 172 Cal.App.3d 1127, 1132 [right of access after a union’s certification as
employees’bargaining representative springs from different source than pre-certification
“organizational”access]; State of California (Departments of Personnel Administration,
Developmental Services, and Mental Health) (1986) PERB Decision No. 601-S.)
5 EERA is codified at section 3540 et seq.
6 HEERA is codified at section 3560 et seq.
7 The Dills Act is codified at section 3512 et seq.
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Nonetheless, the Board has found that the Dills Act includes an implied right of access, based
on the statute’s purpose and intent, and the language of section 3519, subdivision (a), which
prohibits interference with employee rights under the statute. (State of California (Department
of Transportation) (1983) PERB Decision No. 304-S, adopting proposed decision at pp. 17-18;
State of California (California Department of Corrections) (1980) PERB Decision No. 127-S,
pp. 5-6 (Corrections).) In Corrections, which involved unrecognized employee organizations,
the Board noted:
The right of employees to join and participate in an employee
organization of their choice necessarily implies that organizations
have the right to communicate with employees and members at
their work site, where they are generally most accessible. Access
to employees to facilitate an exchange of information is clearly a
threshold concern not only in an organizing campaign but during
the course of the ongoing relationship between the employee
organization and its members.
(Id. at p. 5, emphasis added.)
Like the Dills Act, the MMBA contains no express right of access. However, the Board
has consistently held that there is a presumptive right of access, beginning with Omnitrans
(2009) PERB Decision No. 2030-M. In that case the Board found that such a right is implied
in section 3506— the MMBA’s prohibition against interference with employee rights— as well
as in section 3507, subdivision (a). As relevant here, that section provides:
A public agency may adopt reasonable rules and regulations after
consultation in good faith with representatives of a recognized
employee organization or organizations for the administration of
employer-employee relations under this chapter. The rules and
regulations may include provisions for all of the following:
[¶… ¶]
(6) Access of employee organization officers and representatives
to work locations.
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(§ 3507, subd. (a).) Observing that this section “has no parallel”in the Dills Act, the Board
noted that this language “contemplates a right of access that is subject to reasonable regulation
much like the statutory access right under EERA and HEERA.” (Omnitrans, supra, at p. 16.)8
It concluded:
Considering the language of the MMBA in light of the well-
established implied right of access grounded in the non-
interference and non-discrimination provisions of other labor
relations statutes, we hold that the MMBA grants a recognized
employee organization a right of access to a public agency’s
facilities for the purpose of communicating with employees
subject to reasonable regulation by the public agency.
(Ibid.) Despite finding the access right in the broader statement of employee rights, the Board
appeared to limit its holding to employee representatives of an employee organization. (Id. at
p. 17, fn. 11.)
Three years later, in County of Riverside (2012) PERB Decision No. 2233-M, the Board
held that the right of access extends to non-employee agents of employee organizations, a
matter not decided in Omnitrans:
We conclude that by expressly placing in the MMBA the
provision for organizational access, the Legislature intended to
and did assure employees the right to confer with non-employee
organizational representatives at their work locations, subject
only to reasonable regulation. This construction harmonizes
MMBA with our other statutes providing expressly for access by
employee organization officers and representatives to employee
work locations. . . .
In sum, we construe the MMBA to afford employee and non-
employee representatives of employee organizations alike, access
to areas in which employees work.
8 In fact, the Board recognized this language as supporting an implied right of access in
the MMBA even before the Legislature placed the MMBA under PERB’s jurisdiction. (See
Corrections, supra, PERB Decision No. 127-S, p. 6, fn. 6.)
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(County of Riverside, supra, pp. 7-8.) The Board explained the scope of this right as follows:
In general, . . . non-employee representatives of employee
organizations enjoy access to non-work areas, and may solicit for
union membership or activity, or distribute literature to,
employees in such areas on the employees’non-work time.
Employer restrictions, if any, must be reasonable, that is, both
necessary to the employer’s efficient operations and/or safety of
employees or others, and narrowly drawn to avoid unnecessary
interference.
(Id. at p. 8.)
In this case, the ALJ relied on Omnitrans, supra, PERB Decision No. 2030-M and
County of Riverside, supra, PERB Decision No. 2233-M to conclude that the right of access
extends to unrecognized employee organizations. The County argues that those cases are
inapplicable because they dealt with recognized employee organizations. While it is true that
the facts of those cases involved recognized organizations, nothing in the reasoning of those
decisions suggested that access rights belong only to recognized organizations. Omnitrans and
County of Riverside would be persuasive authority even if they are not factually on all fours
with this case. (See generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 511.) As we
explain below, the ALJ was correct that both decisions are based on statutory language that
draws no distinction between recognized and unrecognized employee organizations, and,
contrary to the County’s arguments, we find no basis for such a distinction in our case law
interpreting our other statutes or in the purposes of the MMBA itself.
First, we consider whether the text of the MMBA supports a distinction between the
access rights of recognized and unrecognized employee organizations. As the ALJ pointed
out, both Omnitrans and County of Riverside relied on section 3507, subdivision (a)(6), which
does not distinguish between recognized and unrecognized employee organizations. Rather,
that section authorizes local rules regulating “[a]ccess of employee organization officers and
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representatives to work locations.” (§ 3507, subd. (a)(6), emphasis added.) This language is
significant because the terms “[e]mployee organization”and “[r]ecognized employee
organization”are separately defined in the MMBA (§ 3501, subds. (a) & (b)),9 and certain
other MMBA provisions grant rights only to recognized employee organizations.10 If the
Legislature had similarly intended to grant access rights only to recognized employee
organizations, it knew how to do so.
The County argues that reliance on section 3507, subdivision (a)(6), is misplaced,
because the provision itself does not grant access rights. According to the County, Omnitrans
determined that access rights “flow”from the MMBA’s non-interference and non-
9 As relevant here, section 3501 provides:
(a) “Employee organization”means either of the following:
(1) Any organization that includes employees of a public agency
and that has as one of its primary purposes representing those
employees in their relations with that public agency.
(2) Any organization that seeks to represent employees of a
public agency in their relations with that public agency.
(b) “Recognized employee organization”means an employee
organization which has been formally acknowledged by the
public agency as an employee organization that represents
employees of the public agency.
10 For instance, recognized employee organizations have the rights to: (1) negotiate an
agency shop agreement with the public agency (§ 3502.5, subd. (a)); (2) obtain an agency shop
arrangement by secret ballot election (§ 3502.5, subd. (b)); (3) “represent their members in
their employment relations with public agencies”(§ 3503); (4) receive “reasonable written
notice to each recognized employee organization affected of any ordinance, rule, resolution, or
regulation directly relating to matters within the scope of representation proposed to be
adopted by the governing body or the designated boards and commissions”and meet with the
governing body, board, or commission (§ 3504.5, subd. (a)); (5) “meet and confer in good faith
regarding wages, hours, and other terms and conditions of employment”with the public
agency (§ 3505); and (6) consult in good faith before the public agency adopts local rules (§
3507).
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discrimination provisions, while section 3507, subdivision (a)(6), is only “evidence of the
implied access right, . . . not the source of the access right itself.” We are unable to find
such a distinction in Omnitrans, which relied on both section 3506 and section 3507,
subdivision (a)(6), as evidence that the MMBA includes an implied right of access.
(Omnitrans, supra, PERB Decision No. 2030-M, p. 16.) Moreover, County of Riverside relied
even more clearly on section 3507. (County of Riverside, supra, PERB Decision No. 2233-M,
p. 7.) Therefore, we agree with the ALJ that the Legislature’s use of the phrase “employee
organization,”rather than “recognized employee organization,”in section 3507,
subdivision (a)(6), supports the conclusion that all employee organizations enjoy a right of
11
access.
Despite the County’s insistence that section 3506 is the sole source of the MMBA’s
implied right of access and restricts that right to recognized employee organizations,
section 3506 offers further support for our conclusion that the right of access applies to
unrecognized employee organizations. Section 3506 makes it unlawful for a public agency to
“interfere with, intimidate, restrain, coerce or discriminate against public employees because of
11 The County argues that giving recognized and unrecognized employee organizations
the same access rights leads to an absurd result. According to the County, because only
recognized employee organizations would be subject to local rules regulating access,
recognition would become “not a benefit, but a disability.”
This argument is based on a mistaken premise and confuses the duty to meet and
consult with a recognized organization with the permissible reach of a reasonable regulation
concerning access applicable to all employee organizations. The right of access is always
subject to reasonable regulation, and section 3507, subdivision (a)(6), makes explicit that an
employer may adopt reasonable rules and regulations concerning access by “employee
organizations,”not just “recognized employee organizations.”
Moreover, we need not and do not decide whether recognized and unrecognized
employee organizations have the same right of access in all circumstances. We are concerned
here only with unrecognized employee organizations’right of access to solicit for union
membership and to distribute literature to employees in non-work areas during non-work time.
10

their exercise of their rights under Section 3502.” Section 3502, in turn, protects the right of
employees “to form, join, and participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of employer-employee
relations.” (Emphasis added.) Once again, we assume that the Legislature used the defined
term “employee organization”— rather than “recognized employee organization”— for a
reason. The Board has long recognized that “[t]he right of employees to join and participate in
an employee organization of their choice necessarily implies that organizations have the right
to communicate with employees and members at their work site, where they are generally most
accessible.” (Corrections, supra, PERB Decision No. 127-S, p. 5.) Accordingly sections 3502
and 3506 provide additional evidence that the Legislature intended to grant a right of access to
unrecognized employee organizations.
We therefore conclude that the language of the MMBA demonstrates the Legislature’s
intent to grant a right of access to all employee organizations.
This conclusion is consistent with the case law interpreting other statutes within our
jurisdiction. We look to that case law mindful that by vesting PERB with jurisdiction over the
MMBA, the Legislature intended “a coherent and harmonious system of public employment
relations laws.” (Coachella Valley Mosquito and Vector Control Dist. v. Public Employment
Relations Bd. (2005) 35 Cal.4th 1072, 1090.)
The Board has considered the access rights of employee organizations under EERA,
HEERA, and the Dills Act. Like the MMBA, these statutes differentiate between employee
organizations based on whether they have been formally certified or recognized as the
exclusive representative. Under all three, an “[e]mployee organization”is not required to be
formally recognized or certified (EERA, § 3540.1, subd. (d); HEERA, § 3562, subd. (f)(1);
11

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Dills Act, § 3513, subd. (a)); under EERA and HEERA, an “[e]xclusive representative,”is an
employee organization certified by the Board or recognized by the employer (EERA, § 3540.1,
subds. (b), (e), (l); HEERA, § 3562, subds. (c), (i), (p)); and under the Dills Act, a
“[r]ecognized employee organization”is “an employee organization that has been recognized
by the state as the exclusive representative of the employees in an appropriate unit”(Dills Act,
§ 3513, subd. (b)). And the two statutes with an express right of access— EERA and
HEERA— grant that right to “employee organizations.” (EERA, § 3543.1, subd. (b); HEERA,
§ 3568.)
A review of our case law under these statutes confirms that the Board has found that
unrecognized employee organizations have access rights. This was stated most directly in
Clovis Unified School District (1984) PERB Decision No. 389: “EERA guarantees a
nonexclusive representative[12] certain statutory rights— the right to represent its members, the
right of reasonable access to school facilities, and the right to dues deduction.” (Id. at p. 5.)
The Board has also found violations of an unrecognized employee organization’s access rights
in a number of cases. (See, e.g., The Regents of the University of California (1985) PERB
Decision No. 504-H, revd. in part on other grounds by Regents of the University of California
v. PERB (1986) 177 Cal.App.3d 648; The Regents of the University of California, University of
California at Los Angeles Medical Center (1983) PERB Decision No. 329-H; State of
California (Department of Transportation), supra, PERB Decision No. 304-S; Regents of the
12 An “[e]xclusive representative”under EERA is “the employee organization
recognized or certified as the exclusive negotiating representative of public school
employees, . . . in an appropriate unit of a public school employer.” (§ 3540.1, subd. (e).)
Thus, “nonexclusive representative”refers to an employee organization, as defined by
section 3540.1, subd. (d), that has not been recognized or certified as the exclusive
representative. (See, e.g., Mt. Diablo Unified School District (1978) PERB Decision No. 68,
p. 9.)
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University of California, Lawrence Livermore National Laboratory (1982) PERB Decision
No. 212-H; Marin Community College District (1980) PERB Decision No. 145.)13 In
University of California at Berkeley (1984) PERB Decision No. 420-H, reversed on other
grounds by Regents of the University of California v. Public Employment Relations Bd. (1988)
485 U.S. 589, the Board explained:
Employee organizations possess access rights irrespective of
whether they are exclusive representatives or, . . . nonexclusive
representatives. Since the right of access is a statutory right, it
exists whether the employer and the employee organization have
a formal, informal, good, bad, or no relationship at all.
(Id. at p. 27.)
The County argues that other PERB cases “suggest”that unrecognized employee
organizations have only the same access rights as members of the public. For instance, it notes
that in both West Contra Costa Healthcare District (2010) PERB Decision No. 2145-M and
Salinas Valley Memorial Healthcare System (2010) PERB Order No. Ad-387-M (Salinas), the
unrecognized employee organization, which had filed a decertification petition, was denied
13 The County argues that the ALJ erroneously cited Regents of the University of
California, Lawrence Livermore National Laboratory, supra, PERB Decision No. 212-H to
support the proposition that PERB case law does not distinguish between recognized and
unrecognized employee organizations. The County claims that this case involved recognized
employee organizations. However, the employee organizations had previously been
recognized under the Brown Act, former section 3525 et seq., which HEERA supplanted. (See
id. at p. 4.) This recognition was legally irrelevant, because HEERA’s definition of
“[e]mployee organization”does not include a recognition requirement. (HEERA, § 3562,
subd. (f)(1).) Therefore, the ALJ correctly relied on this case.
The County’s objection to the ALJ’s reliance on State of California (Departments of
Personnel Administration, Mental Health and Developmental Services) (1985) PERB Decision
No. 542-S fails for similar reasons. In that case, the employer purported to “recognize”the
employee organization as an “[e]mployee organization”under Dills Act section 3513,
subdivision (a). As with HEERA, however, the Dills Act’s definition of “[e]mployee
organization”does not require employer recognition. As a result, the employer’s recognition
was legally irrelevant, and the ALJ’s reliance on this case was proper.
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access to employee break rooms. However, as the County notes elsewhere in its exceptions,
these cases actually involved the rights of the exclusive representative. Both cases arose from
election objections filed by the exclusive representative, meaning the lawfulness of the denial
of access to the unrecognized employee organization was not at issue. We find nothing in
either case— and the County does not cite anything— that even implies the Board’s approval of
the proposition that unrecognized organizations enjoy no greater access than the general
public.14
Nor do we find anything suggesting Board approval of this proposition in State of
California (Department of Personnel Administration) (1992) PERB Decision No. 948-S, also
cited by the County. That case involved several election objections filed by an unrecognized
employee organization after it lost a decertification election. Among the objections addressed
by the ALJ were that representatives of the organization were prevented from accessing secure
facilities in the middle of the night or without making advance arrangements. The ALJ
dismissed those objections, but sustained a different objection concerning voter eligibility, and
ordered a re-run of the election based on that objection alone. The exclusive representative
then filed exceptions with the Board, challenging the ALJ’s conclusion regarding the voter
eligibility objection. Thus, the Board’s decision only addressed the ALJ’s treatment of the
voter eligibility issue and his order to re-run the election. It does not address or imply approval
of the ALJ’s treatment of the access objections.
The California State University, Chico (1989) PERB Decision No. 729-H (Chico I) is
also unavailing to the County. The issue in that case was whether the employer applied a
14 To the contrary, the Board in Salinas, supra, PERB Order No. Ad-387-M, adopted
the administrative determination that stated: “The MMBA grants employee organizations a
right of access, subject to reasonable regulation.” (Admin. Determination, p. 22, emphasis
added.)
14

verification requirement, which was a prerequisite to access to the internal mail system, in a
discriminatory or inconsistent manner. The Board found a violation of the organization’s
access rights under HEERA due to “discriminatory and inconsistent application”of this
verification requirement. (Id. at pp. 6-7.) On a request for reconsideration, the Board then
determined that there was insufficient evidence of discriminatory application of the verification
requirement. (The California State University, Chico (1989) PERB Decision No. 729a-H, p. 3
(Chico II).)
The County observes that the Board in Chico I did not find that the verification
requirement itself was an unreasonable regulation of employee organization access rights.
While true, this does not support the County’s argument that unrecognized employee
organizations have no greater access rights than members of the public, for two reasons. First,
the Board did not consider whether the verification requirement itself was unreasonable, either
in Chico I or in Chico II. “Cases are not authority for propositions not therein considered.”
(Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 58.) Second, even if the Board’s
silence regarding the verification requirement could be read as “suggesting”approval, the
verification requirement was not the equivalent of certification as an exclusive representative
under HEERA. To be “verified”an employee organization was required to provide its name,
the names and addresses of its officers and authorized representatives, the classifications it
sought to represent, a copy of its constitution and bylaws, and a statement affirming that one of
its purposes was to represent employees. (Chico I, supra, PERB Decision No. 729-H, p. 5, fn.
5.) The verification requirement therefore did not prevent unrecognized employee
organizations, i.e., nonexclusive representatives, from accessing the mail system.
15

Finally, Long Beach Unified School District (1980) PERB Decision No. 130 (Long
Beach), also cited by the County, does not support the proposition that unrecognized employee
organizations have no greater access rights than members of the public. The facts in that case
arose before an exclusive representative was chosen. The Board considered several rules that
were alleged to violate the unrecognized employee organization’s right of access. One rule
imposed more onerous identification requirements on non-employee union representatives than
it did on members of the public. (Id. at p. 15.) The Board found this rule unlawful because it
discriminated between members of the public and union representatives “without justification.”
(Id. at p. 16.)
Long Beach, supra, PERB Decision No. 130 therefore stands for the proposition that an
employer may not discriminate between union representatives and members of the public. In
other words, an employee organization has at least the same rights as members of the public.
It does not follow, however, that unrecognized employee organizations have no more rights
than members of the public. And, in fact, the Board in Long Beach struck down another rule
without reference to the public. That rule limited a union representative to meeting informally
with no more than three employees at a time without advance arrangements. (Id. at pp. 18-22.)
The Board held that “the organization’s right of access which extends to nonworking
employees in nonworking areas cannot be subjected to an artificial limitation based on the
number of employees with whom the representative meets.” (Id. at p. 19.) The Board’s
rationale regarding this rule does not rely on (or even mention) discrimination between union
representatives and members of the public. Accordingly, Long Beach does not support the
County’s argument.
16

In sum, we agree with the ALJ that PERB’s case law has recognized a right of access
for unrecognized employee organizations.
Our final consideration is whether a statutory right of access for unrecognized
employee organizations is consistent with the MMBA’s purposes. Like any statute, the
MMBA cannot be interpreted in a manner inconsistent with its purpose. (San Diego Housing
Commission v. Public Employment Relations Bd. (2016) 246 Cal.App.4th 1, 18.)
Section 3500, subdivision (a), describes the MMBA’s two general purposes: (1) “to promote
full communication between public employers and their employees by providing a reasonable
method of resolving disputes regarding wages, hours, and other terms and conditions of
employment between public employers and public employee organizations”; and (2) “to
promote the improvement of personnel management and employer-employee relations within
the various public agencies in the State of California by providing a uniform basis for
recognizing the right of public employees to join organizations of their own choice and be
represented by those organizations in their employment relationships with public agencies.”
In County of Riverside, supra, PERB Decision No. 2233-M, we determined that the
general right of access is consistent with these purposes:
Our statutes contain express reference to access rights and
express a common legislative purpose to promote
communications and improve employer-employee relations
between public employers and their employees through
recognition of the employees’right to join and be represented by
employee organizations. We therefore have formulated a
presumptive right of access to California’s public facilities by
union agents, subject to reasonable regulation . . . .
(Id. at p. 7, fn. omitted.) A right of access for unrecognized organizations is equally consistent
with the MMBA’s purposes. Employees’right to choose their representative is central to the
legislatively-declared purposes of improving public agencies’personnel management and
17

employer-employee relations. This concept is reinforced in MMBA section 3502, which, as
we have noted, secures the right of public employees to “form, join, and participate in the
activities of employee organizations of their own choosing for the purpose of representation on
all matters of employer-employee relations.” Providing all employee organizations access to
the workplace, subject to reasonable regulation, is a practical, obvious, and entirely sensible
method of facilitating employees’right to choose the employee organization to represent them.
“Access to employees to facilitate an exchange of information is clearly a threshold concern
not only in an organizing campaign but during the course of the ongoing relationship between
the employee organization and its members.” (Corrections, supra, PERB Decision No. 127-S,
p. 5; cf. NLRB v. Magnavox Co. of Tennessee (1974) 415 U.S. 322, 326-327.)
The County urges a more blinkered view of the MMBA’s purposes, which it claims are
fulfilled only when employee organizations obtain recognition and serve as the representatives
of a public agency’s employees. We acknowledge that these are also among the MMBA’s
purposes, but the County does not articulate— and we do not perceive— how an access right for
unrecognized employee organizations conflicts with those purposes.
Instead of pointing to an actual conflict, the County argues only that the MMBA
relegates unrecognized employee organizations to a “lesser status.” The difference in status is
undeniable, given that the MMBA reserves its most significant rights for recognized employee
organizations. (See footnote 10, ante.) Such is necessary in a statutory scheme that provides
for exclusive representation. But a lesser status with respect to bargaining and representational
rights does not mean that access rights for unrecognized employee organizations conflict with
the MMBA’s purpose. As our earlier cases have noted, employees cannot meaningfully
exercise their right to choose their own representatives unless non-incumbent organizations are
18

________________________
permitted access to the work site, subject to reasonable regulation. To completely ban from the
work site an organization seeking to ultimately decertify a recognized organization is not a
reasonable regulation, and violates employee and organizational rights guaranteed by the
MMBA.
After concluding that the MMBA’s right of access extended to unrecognized employee
organizations, the ALJ considered the specific details of the County’s access policy and how it
was applied in this case. The ALJ concluded that the blanket prohibition on organizational
activities in non-working areas was unreasonable, and that both of the instances in which the
County enforced its policy involved non-working areas. The County has not excepted to those
conclusions.15 Therefore, we affirm the ALJ’s conclusion that the County denied SEIU its
right of access.
II. 	Surveillance
The County’s second exception is to the ALJ’s conclusion that the County interfered
with employee rights when Feldhaus took a photograph of SEIU organizers meeting with
County employees.
MMBA section 3506 prohibits public agencies from interfering with or discriminating
against public employees because of the exercise of their rights under MMBA section 3502.
15 We note that the ALJ concluded that ERO section 13.0213(d) was confined to
“exclusive recognized employee organizations,”and did not regulate access by unrecognized
employee organizations. The County argues that this conclusion was clearly “erroneous,”
without advancing a specific exception on this point or explaining how it would change the
result. The only significance we perceive is that, if section 13.0213(d) were applied to
unrecognized employee organizations, the County would “enforce a local rule that is not in
conformance with [the] MMBA.” (Cal. Code Regs., tit. 8, § 32603, subd. (f).) But because the
ALJ’s proposed order did not refer to section 13.0213(d), and SEIU has not filed any
exceptions, we do not consider this issue further. We affirm the ALJ’s proposed order
directing that the County cease and desist denying employee organizations their right of
access, which would preclude the County from enforcing ERO section 13.0213(d) to deny
access to any employee organization.
19

“If the employer’s conduct interferes with protected conduct, the burden shifts to the employer
to articulate a legitimate justification for its conduct. The scrutiny with which the employer’s
conduct will be examined depends on the severity of the harm.” (County of San Bernardino
(Office of the Public Defender) (2015) PERB Decision No. 2423-M, p. 36.) If the harm to
employee rights is slight, a violation will be found unless the employer’s business justification
outweighs the harm to employee rights. (Stanislaus Consolidated Fire Protection District
(2012) PERB Decision No. 2231-M, pp. 22-23.) If the employer’s conduct is, instead,
inherently destructive of employee rights, it “‘will be excused only on proof that it was
occasioned by circumstances beyond the employer’s control and that no alternative course of
action was available.’” (Id. at p. 23, quoting Carlsbad Unified School District (1979) PERB
Decision No. 89.)
In its only decision addressing allegations of unlawful surveillance, the Board turned to
case law developed under the National Labor Relations Act:
The National Labor Relations Board (NLRB) has generally found
that an employer has engaged in unlawful surveillance when the
employer photographs or videotapes employees or openly
engages in recordkeeping of employees participating in union
activities. (F.W. Woolworth Co. (1993) 310 NLRB 1197.) The
mere observation of open, public union activity on or near the
employer’s property, however, does not constitute unlawful
surveillance. (National Steel & Shipbuilding Co. (1997) 324
NLRB 499.)
(Lake Tahoe Unified School District (1999) PERB Decision No. 1361, adopting warning letter
at p. 2.) Photographing and recordkeeping are proscribed because of their “tendency to
intimidate.” (F.W. Woolworth Co., supra, 310 NLRB 1197, 1197.)
The County argues that Feldhaus’s action of taking a photograph did not interfere with
employee rights because Feldhaus quickly deleted the photograph and announced that she had
20

done so. In light of this, according to the County, the employees present “could not have
reasonably believed that Feldhaus would use the photograph to enact reprisals on them.”
The ALJ rejected this argument on the grounds that even creating the impression of
surveillance would have been unlawful, citing NLRB v. Simplex Time Recorder Co. (1st Cir.
1968) 401 F.2d 547. We agree that harm to employee rights occurred if employees saw
Feldhaus taking or appearing to take a photograph. That she deleted the photograph only after
the SEIU organizers objected establishes that she was observed taking the photograph and that
enough time passed for a reasonable employee to have been intimidated by her action.
Moreover, the fact that Feldhaus informed Peterson that she had deleted the photograph
was not sufficient to repudiate or retract her conduct. Claims that an employer’s interference
with employee or employee organization rights was negated by subsequent actions have been
analyzed under the Board’s retraction doctrine. Under that doctrine, “an honestly given
retraction can erase the effects of a prior coercive statement if the employer retraction was
made in a manner that completely nullified the coercive effects of the earlier statement.”
(Jurupa Unified School District (2015) PERB Decision No. 2458, p. 12, internal quotation
marks omitted.) An effective retraction must be: (1) timely; (2) unambiguous; (3) specific in
nature to the coercive conduct; (4) free from other illegal conduct; (5) adequately publicized to
the affected employees; (6) not followed by other illegal conduct; and (7) accompanied by
assurances that the employer will not interfere with their protected rights in the future. (Ibid.,
citing Passavant Memorial Area Hospital (1978) 237 NLRB 138, 138-139.)
Here, Feldhaus testified that in response to Peterson’s protests, she deleted the
photograph “[r]ight away”and offered to show him that it was no longer on her phone. These
actions were not unambiguous; Feldhaus did not acknowledge any wrongdoing. They were
21

also not free from other illegal conduct, as they occurred in the context of Feldhaus’s attempts
to enforce an unlawful policy denying SEIU access to the area. Nor were they adequately
publicized to the affected employees, since they were directed only at Peterson. And they were
not accompanied by any assurances against future acts of interference. Therefore, there was no
effective retraction or repudiation of Feldhaus’s surveillance.
The County also argues that Feldhaus did not engage in “premeditated surveillance,”
having decided to take the photograph “on the spur of the moment,”and that the evidence
shows that the SEIU organizers were able to “successfully intimidate management into doing
as they wished,”i.e., deleting the photograph. Feldhaus’s state of mind, including her lack of
premeditation, is irrelevant to the question of whether employee rights were harmed. (See
County of Merced (2014) PERB Decision No. 2361-M, p. 9 [unlawful motive or intent not
required].) The employer that interferes with employee rights on a whim is no less culpable.
(City & County of San Francisco (2017) PERB Decision No. 2536-M, p. 29.) In addition,
even if employees were not actually intimidated by Feldhaus’s original actions, “‘[t]he test of
coercion and intimidation is not whether the misconduct proves effective.’” (Clovis Unified
School District (1984) PERB Decision No. 389, p. 14, quoting NLRB v. Triangle Publications,
Inc. (3d Cir. 1974) 500 F.2d 597, 598.) Therefore, we reject these arguments and conclude
that at least slight harm to employee rights has been established.
Because there was at least slight harm, the burden shifts to the County to introduce a
legitimate business justification for its actions. Photographic or video surveillance may be
justified as necessary to gather evidence when the employer reasonably believes that union
organizers or employers are engaging in misconduct. (See, e.g., Rahn Sonoma Ltd. (1997)
322 NLRB 898, 902 [trespassing claim]; Roadway Express (1984) 271 NLRB 1238, 1244
22

[injunctive relief action to enforce contractual no-strike clause].) The County argues that
Feldhaus had a reasonable, objective belief that SEIU organizers were violating the County’s
access policy, which justified her actions. We disagree. It is undisputed that the SEIU
organizers were violating the access policy, but that policy was unlawful. Documenting a
violation of an unlawful policy cannot be a cognizable justification for engaging in
surveillance. To hold otherwise would allow the County to justify Feldhaus’s actions by her
presumed lack of intent to interfere with employee rights. An employer’s lack of intent to
interfere with employee rights, when coupled with a legitimate business justification, may
serve as a valid defense to an interference allegation. (Community Learning Center Schools,
Inc. (2017) PERB Order No. Ad-448, p. 9.) But mere lack of intent, standing alone, does not.
Because SEIU has demonstrated slight harm to employee rights and the County has
failed to introduce a legitimate business justification, we affirm the ALJ’s finding that the
County interfered with employee rights by engaging in surveillance.
ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, it is found that the County of San Bernardino (County) violated the Meyers-
Milias-Brown Act (MMBA), Government Code sections 3502, 3506, and 3506.5,
subdivisions (a) and (b); Public Employment Relations Board (PERB) Regulation 32603,
subdivisions (a) and (g) (Cal. Code Regs., tit. 8, sec. 31001 et seq.); and section 13.0211(a)(1),
of the County’s Employee Relations Ordinance by adopting an unlawful policy governing the
organizational activities of unrecognized employee organizations and applying this policy to
deny representatives of Service Employees International Union Local 721 (SEIU) access to
County facilities in May 2014. It has also been found that the County interfered with
23

employee rights by denying them the ability to speak to SEIU’s representatives and by
photographing employees as they were speaking to SEIU’s representatives. All other
allegations in the unfair practice charge filed by SEIU are dismissed.
Pursuant to MMBA section 3509, subdivision (b), it is hereby ORDERED that the
County, its governing board, and its representatives shall:
A. CEASE AND DESIST FROM:
1. 	Denying employee organizations the right to access County facilities for
the purpose of engaging in organizational activities.
2. 	Interfering with the right of employees to be represented by the
employee organization of their own choosing.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the current access policy for unrecognized employee
organizations as articulated in the memorandum from Andrew Lamberto dated May 9, 2014.
2. 	Within ten (10) working days of the service of a final decision in this
matter, post copies of the Notice attached hereto as an Appendix at any County facility where
SEIU engaged in organizational activities between January and June of 2014, including the
TAD office and the Behavioral Health Services building. The Notice must be signed by an
authorized agent of the County, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced, or covered
with any other material. The Notice shall also be posted by electronic message, intranet,
internet site, and other electronic means customarily used by the County to communicate with
employees.
24

3. 	Written notice of the actions taken to comply with this Order shall be
made to the General Counsel of PERB, or the General Counsel’s designee. The County shall
provide reports in writing, as directed by the General Counsel or her designee. All reports
regarding compliance with this Order shall be concurrently served on SEIU.
Chair Gregersen and Member Banks joined in this Decision.
25

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 721,
UNFAIR PRACTICE
Charging Party, 	CASE NO. LA-CE-923-M
v. 	PROPOSED DECISION
(October 9, 2015)
COUNTY OF SAN BERNARDINO,
Respondent.
Appearances: Weinberg, Roger & Rosenfeld by Jacob J. White, Attorney, for Service
Employees International Union Local 721; Renne Sloan Holtzman Sakai by Timothy G. Yeung
and Erich W. Shiners, Attorneys, for County of San Bernardino.
Before Kent Morizawa, Administrative Law Judge.
In this case, an employee organization alleges that a public employer violated the
Meyers-Milias-Brown Act (MMBA) and Public Employment Relations Board (PERB or
Board) Regulations1 by refusing to allow it access to the employer’s facilities and by showing
preference for one employee organization over another. The employer denies any violation.
PROCEDURAL HISTORY
On May 12, 2014, the Service Employees International Union Local 721 (Local 721)
filed an unfair practice charge against the County of San Bernardino (County) with subsequent
amendments on May 27 and June 16, 2014. On July 24, 2014, the San Bernardino Public
Employees Association (SBPEA) filed a motion to be joined as a party in the case.
1 MMBA is codified at Government Code section 3500 et seq. PERB regulations are
codified at California Code of Regulations, title 8, section 31001 et seq.

________________________
On December 15, 2014, Local 721 withdrew from its charge allegations asserting that
the County’s Employee Relations Ordinance violated the MMBA and PERB Regulations. The
following day, PERB’s Office of the General Counsel issued a complaint alleging that the
County violated the MMBA and PERB Regulations when: (1) a County agent told Local 721’s
organizers to leave an outdoor rest area and took a photo of the organizers; (2) the County
issued a memorandum limiting Local 721’s access to the County’s facilities; (3) a County
agent prohibited Local 721’s organizers from speaking to a County employee in a breakroom;
and (4) a County agent drafted a declaration in support of an application for a temporary
restraining order filed by SBPEA against Local 721.
On January 12, 2015, the County answered the complaint denying any violation of the
MMBA or PERB regulations and setting forth its affirmative defenses. On April 1, 2015, the
parties participated in an informal settlement conference, but the matter was not resolved.
On June 18, 2015, SBPEA filed a renewed motion for intervention to be joined as a
party in the case. Both SBPEA’s original and renewed motions for intervention were denied
the following day.2
Formal hearing was held on July 6 and 7, 2015. At the hearing, the complaint was
amended to state that the facts alleged in the complaint to have violated the MMBA and PERB
Regulations also violated the County’s Employee Relations Ordinance. 	The matter was
submitted for proposed decision with the submission of closing briefs on September 18, 2015.
FINDINGS OF FACT
The Parties
2 On June 26, 2015, SBPEA appealed the denial of its motions to the Board. On July 3,
2015, the Board denied the appeal for failure to comply with PERB Regulation 32200.
2

Local 721 is an employee organization within the meaning of MMBA section 3501,
subdivision (a).
The County is a public agency within the meaning of MMBA section 3501, subdivision
(c), and PERB Regulation 32016, subdivision (a).
Background
In late 2013, Local 721 began an organizing campaign with the goal of convincing
workers in several County bargaining units to decertify SBPEA and elect Local 721 as their
exclusive representative. At the same time, the County and SBPEA were in the process of
negotiating a successor memorandum of understanding (MOU) for eight bargaining units in the
County. In April 2014, SBPEA and the County reached a tentative agreement on an MOU,
subject to ratification by SBPEA’s membership.
As part of its organizing campaign, Local 721 dispatched organizers and rank-and-file
members to speak with employees at various County facilities. These individuals discussed a
number of issues with County employees, including urging them to reject the tentative
agreement between SBPEA and the County. Local 721’s organizers typically met with County
employees in public areas, such as parking lots.
Pursuant to the County’s Employee Relations Ordinance (ERO), an employee
organization may file a decertification petition within the period 30 days prior to the expiration
of an existing MOU or at any time when a valid MOU is not in effect. In late June 2014, Local
721 filed a petition to decertify SBPEA as the exclusive representative for at least one County
bargaining unit.
The County’s Access Policy
3

Bob Windle is the County’s Assistant Director of Human Resources. He testified that
he became aware of Local 721’s organizing activities in March 2014, and Local 721’s
activities were discussed in subsequent staff meetings. At these meetings, the County
reminded managers of its solicitation and distribution policy, which Windle testified has
always been to prevent any employee organization, whether incumbent or an employee
organization seeking to become an exclusive representative, from conducting solicitation
activities in non-public areas. Windle testified that this policy is memorialized in ERO section
13.0213, subdivision (d), which states:
Access to County work locations and the use of County paid-
time, facilities, equipment, hardware or software and other
resources by exclusive recognized employee organizations shall
be authorized only to the extent provided for in a memorandum of
understanding and/or applicable administrative procedures and
shall be limited to activities pertaining directly to the employer-
employee relationship and shall not interfere with the efficiency,
safety and security of County employees or County operations.
Access to and use of County paid time, facilities, equipment and
other resources shall not be authorized for such activities as: any
that violates County Policy, soliciting membership, soliciting
business by or for any non-County sponsored/sanctioned
company, campaigning for office, selling insurance plans,
organizing elections, or other similar activities.
Pursuant to this language, the County has negotiated access language into all of its MOUs.
Windle testified that as of May 2014, the language in the MOUs for bargaining units
represented by SBPEA permitted that organization, with sufficient notice to the County, to
enter non-public areas in County facilities for the purpose of what he called “representational
activities,”which include meetings with employees for grievance and disciplinary meetings.
On May 9, 2014, Andrew Lamberto, the County’s Director of Human Resources, issued
a memorandum titled “Campaign/Solicitation Activities”to department heads and other
management staff. The memorandum stated in relevant part:
4

Over the last several months the County bargaining team has
been negotiating with [SBPEA] on a successor [MOU]. On April
24, 2014, a Tentative Agreement was reached between the
parties, and SBPEA is currently reaching out to their membership
to communicate the details of the Agreement.
In an aggressive effort to disrupt those communications, certain
organizations, including the Service Employees International
Union (SEIU), have been visiting various County facilities to
solicit County employees to vote no on the Tentative Agreement.
As a reminder, the following is the County’s position with respect
to access for all campaign/solicitation activities:
i 	There will be no access allowed by any organization
representatives in non-public areas for purposes of
campaign or solicitation activities, including access to
bulletin boards reserved for County use or for employee
organizations. “Non-public areas”include, but are not
limited to, offices, employee work sites, break rooms,
employee lunch rooms, and employee parking lots.
i 	Campaign/solicitation activities may not occur in work
areas, including the distribution and/or posting of
literature, and must not disrupt County business. “Work
areas”would include offices, employee work sites, break
rooms, employee lunch rooms, and employee parking lots.
i 	County employees that are off duty shall have no greater
access to non-work areas for the purpose of engaging in
campaign/solicitation activities than other off duty County
employees who are not engaging in such activities.
The County will act to insure the continued delivery of public
services. As managers and supervisors, you have an important
role to play. While maintaining a neutral role, you must work to
insure that service to the public is not disrupted by
campaign/solicitation activities. Further, you must act to insure
that your employees adhere to the limits placed on such activities.
The County felt it necessary to remind managers of its policy as the vote on the tentative
agreement drew nearer because it had begun receiving numerous reports of activity that
5

violated the solicitation/distribution policy, such as individuals getting access to employees
during work time and in work areas.
Local 721’s Access to County Facilities
On May 8, 2014, Adriel Peterson, a Local 721 organizer, and several of Local 721’s
rank and file members arrived at a Transitional Assistance Department (TAD) office to speak
to County employees. The TAD office is open to the public and provides a number of
services, including helping families in need and assisting people get access to health insurance.
Peterson and those with him stationed themselves in several areas outside the building,
including an outdoor break area, where they spoke to employees about joining Local 721.
The outdoor break area is located in the back of the TAD office adjacent to a parking
lot used by employees and members of the public. Although the break area is covered by a
roof, it is otherwise open to the elements and contains several picnic tables and benches.
Employees use the break area to eat or smoke cigarettes. On occasions when members of the
public are found in the break area, they are asked to leave. However, there is no gate to enter
the break area or any signage indicating the break area is exclusively for the use of County
employees.
While Peterson’s group was speaking to County employees in the outdoor break area,
they were approached by Robin Feldhaus, a District Manager in charge of the TAD office.
Feldhaus testified she was aware the group was affiliated with Local 721 and that on prior
occasions when Local 721 organizers were at the facility, they had limited their activities to the
parking lots. When she saw Peterson’s group in the outdoor break area, she told them that they
were not permitted to be there. Peterson replied that it was a public area, and the group had the
6

right to be there. Feldhaus entered the building, and Peterson’s group resumed speaking to
employees.
Once inside, Feldhaus directed a security guard to post outside near the outdoor break
area. She then checked her emails to confirm her understanding of the County’s policy
regarding organizing activities at County facilities. Her search yielded the following March
24, 2014 email from a TAD Assistant Director, which stated:
Just a reminder that SEIU is not allowed in the work area or
break areas of our offices, including outside break areas. They
can be in public parking lots. Please ensure that we are following
this. I was told that they were at a few more offices as well as
some other departments. Please see attached memo for further
details and info. Let me know if you have any questions. Thanks.
She forwarded this email to the TAD Deputy Director and requested guidance on how to
proceed with Peterson’s group.
At some point after sending the email to the TAD Deputy Director, Feldhaus went to
the outdoor break area to take a break. Peterson’s group was still there talking to County
employees. Feldhaus testified that Peterson’s group became rowdy and obnoxious when she
entered the break area. Peterson testified that he was measured but firm in his position that his
group had the right to be where they were. Feldhaus photographed the group to document
what she perceived to be inappropriate behavior. Peterson told her that what she had done was
illegal, and Feldhaus deleted the picture. She then returned inside the TAD office. Peterson’s
group left some time thereafter.
On May 22, 2014, Daniel Lopez, a Local 721 organizer, visited the County Behavioral
Health Services building to speak to an employee working in the Westside Clinic, which is
among three County departments housed in the County Behavioral Health Services building.
7

Lopez had spoken to the employee on a prior occasion in the building’s parking lot, and they
arranged to meet on May 22 during the employee’s lunch break.
When Lopez arrived at the County Behavioral Health Services building, he entered the
main entrance and spoke to the receptionist in the public lobby area. Although he had visited
the building several times before, this was his first time inside. The receptionist escorted him
to the employee breakroom located towards the back of the building. Getting to the breakroom
required Lopez to pass through several locked doors and traverse one of two hallways, one
adjacent to a mental health facility and the other adjacent to an alcohol and drug services
clinic. Lopez’path to the breakroom did not require him to pass through the Westside Clinic
itself, which is physically detached from the public lobby area, both of the previously
described hallways, and the breakroom itself. Once in the breakroom, the receptionist left
without giving Lopez any directions. Lopez then located the employee he was there to meet
and began speaking to her.
Akemy Bon-Flores, another Local 721 organizer, arrived at the County Behavioral
Health Services building shortly after Lopez. He entered the main entrance and spoke to the
receptionist, who escorted him to the breakroom where Lopez was already meeting with the
employee. Although Bon-Flores had visited the building on prior occasions, this was his first
time inside. Bon-Flores traveled the same path as Lopez to get to the breakroom. Once inside
the breakroom, the receptionist left without giving Bon-Flores any directions. Bon-Flores
joined Lopez and the employee at their table. Bon-Flores testified that there were about 15
employees in the breakroom when he entered. While in the breakroom, he got up to speak to
employees at other tables. Some were receptive to him and others were not. He ultimately
ended up back at the first table with Lopez and the employee who had invited them both there.
8

While Bon-Flores and Lopez were speaking to employees, a security guard approached
them and asked what their purpose was for being in the breakroom. Bon-Flores responded that
they were speaking to employees about joining Local 721. The security guard asked them to
leave, and Bon-Flores replied that he would do so when they had finished their conversation.
The security guard then left. A short time later, another security guard approached Bon-Flores
and Lopez, again asking the pair what their business was in the breakroom. Bon-Flores gave a
similar response as before, and the guard then stood post in the breakroom.
At some point in time, Sherwin Farr, the building manager, received complaints that an
employee organization was in the breakroom bothering employees. When Farr went to the
breakroom to investigate, he found Bon-Flores and Lopez speaking to County employees. Farr
informed them that they were not permitted to be in the breakroom. Bon-Flores stated they
would leave when they were done with their conversation. Farr returned to his office and
emailed his boss, who replied that Bon-Flores and Lopez were not permitted to be in the
breakroom and needed to remain in the parking lot. Farr returned to the breakroom and
showed Bon-Flores the email from his boss, after which Bon-Flores and Lopez were escorted
out of the building.
Windle’s Declaration
The Employee Management and Compensation System (EMACS) is the County’s
payroll system. The County considers employees’personal information stored in EMACS,
such as home addresses, home telephone numbers, and emergency contact information, to be
confidential and prohibits such information from being disclosed unless required to by law.
In May 2014, the County began receiving complaints from employees that Local 721
had sent mailers to their home addresses and placed phone calls to their personal telephone
9

numbers, some which were listed as their emergency contact numbers. Some of the employees
surmised that the only source of such contact information was EMACS and blamed the County
for providing their personal information to Local 721. The County launched an investigation
to ascertain whether or not someone had made unauthorized access to EMACS for the purpose
of obtaining employees’personal information.
After about a week and a half into the County’s investigation, Windle was contacted by
Michelle Hribar, an attorney for SBPEA. Hribar inquired about EMACS and whether the
County had disclosed employees’personal information. After a discussion with Windle about
the particular of EMACS, she asked him to submit a declaration. Windle agreed, and Hribar
sent him a draft declaration, which he revised with the assistance of County Counsel. On May
21, 2014, Windle signed a final version of the declaration, which states in pertinent part
3. 	The Service Employee International Union
(“SEIU”) has requested from the County the names and
work contact information of County employees in certain
units represented by the San Bernardino Public Employees
Association (“SBPEA”), but has never requested from the
County the home or personal contact information of any
County employees.
4. 	The County of San Bernardino has never provided
the SEIU or any of its affiliates or agents with the work or
home addresses, work or home telephone numbers, or
other work or personal contact information of any County
employees, including those employees represented by
SBPEA.
5. 	In or about May 2014, County staff and SBPEA
staff informed me about, and in some instances forwarded
to me, complaints made by County of San Bernardino
employees in which these employees complained that they
had received unsolicited and unwarranted mailers at their
home addresses from SEIU, or had received unsolicited
and unwanted telephone calls from SEIU to their personal
telephone numbers. Some of these County employees
10

________________________
raised concerns about the possibility that their personal
contact information had been disclosed to SEIU.
6. 	As a result of these complaints, the County of San
Bernardino commenced an investigation. Based on the
results of the investigation to date, the County of San
Bernardino believes that there is a more than reasonable
possibility that the personal telephone numbers and home
addresses of County employees have been accessed,
without authorization from the County of San Bernardino,
from the County’s electronic database containing such
information and provided to SEIU.
Windle had no further communications with Hribar after submitting his declaration.
At the time Windle filed his declaration, the County was still in the midst of its
investigation. It had not obtained any evidence that Local 721 was responsible for any
unauthorized access to EMACS. Windle testified that at the time he signed the declaration he
was unaware what SBPEA sought to do with it. However, the County admits in its answer that
the declaration was submitted in support of an application for temporary restraining order filed
by SBPEA against Local 721, which the San Bernardino County Superior Court ultimately
granted.3 Furthermore, the draft declaration itself contains a caption indicating that the
declaration is being made in connection with a lawsuit brought by SBPEA against Local 721.
Therefore, I find it more likely than not that Windle knew that his declaration was being
submitted in furtherance of SBPEA’s lawsuit.
The County concluded its investigation on June 27, 2014, and was unable to
substantiate one way or the other whether someone made unauthorized access to EMACS
because EMACS does not log each and every instance when an employee accesses the system.
It only logs usage when an employee saves any accessed information. Therefore, even if an
3 As of the date of the formal hearing in this matter, the litigation between SBPEA and
Local 721 was ongoing.
11

employee had improperly accessed employees’personal contact information, if he or she did
not save the information, EMACS would not have logged the query. Because of these gaps in
the way EMACS tracks employee usage, the County could not make any definitive findings as
to whether someone had accessed EMACS without authorization. The County did not follow
up with SBPEA to inform it of the findings from its investigation nor did Windle submit a
supplemental declaration regarding those findings.
ISSUES
1. 	Does the litigation privilege apply to Windle’s declaration?
2. 	Did the County unlawfully deny Local 721 access to County facilities?
3. 	Did the County unlawfully interfere with employee rights?
4. 	Did the County provide unlawful assistance to SBPEA?
5. 	Did the County violate its ERO?
CONCLUSIONS OF LAW
Litigation Privilege
The rules of privilege apply in formal hearings for unfair practice cases. (PERB
Regulation 32176.) At issue here is whether the litigation privilege set forth in Civil Code
section 47, subdivision (b), shields the County from liability based on Windle’s declaration.
The litigation privilege applies to “any communication: (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects
of the litigation; and (4) that have some connection or logical relation to the action. [citations
omitted.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege is absolute, and its
application does not depend on the publisher’s motive or intent. (Kashian v. Harriman (2002)
98 Cal.App.4th 892, 913.) The purposes of the litigation privilege include affording litigants
12

and witnesses access to the courts without fear of being subsequently harassed by derivative
tort actions, encouraging open channels of communication, promoting complete and truthful
testimony, giving finality to judgments, and avoiding unending litigation. (Jacob B. v. County
of Shasta (2007) 40 Cal.4th 948, 955.) To further these purposes, the privilege has been
broadly applied. (Ibid.) Any doubt as to whether the privilege applies is resolved in favor of
applying it. (Kashian, supra, 98 Cal.App.4th at 913.)
Windle’s declaration meets all the requirements to be subject to the litigation privilege.
It was made in a judicial proceeding before the San Bernardino County Superior Court as part
of litigation initiated by SBPEA against Local 721. Windle’s statements in the declaration are
made as a witness under penalty of perjury and are squarely within the type statements that the
litigation privilege seeks to immunize from future liability. Finally, the declaration had a
logical connection to SBPEA’s lawsuit since SBPEA presented it as evidence in support of a
temporary restraining order against Local 721.
Local 721 argues that Windle’s declaration is not subject to the litigation privilege
because Windle did not have a substantial interest in the outcome of the litigation. In support
of its argument, Local 721 cites to Costa v. Superior Court (1984) 157 Cal.App.3d 673
(Costa). There, a local chapter of an international lodge brought a libel suit against the
international lodge based on a letter the international lodge wrote to members of the local
chapter. (Id. at 676-677.) In finding that the letter was subject to the litigation privilege, the
court found that the members of the local chapter to whom the letter was addressed possessed a
substantial interest in the outcome of the pending litigation and were therefore authorized
participants in the litigation. (Id. at 678.)
13

It is unclear that a showing of “substantial interest”is required in this case since
witness testimony is exactly the type of activity that the litigation privilege seeks to shield
from future liability. In Costa, supra, 157 Cal.App.3d 673, the court made a finding of
substantial interest in order to extend the litigation privilege to non-litigants who were not
actively involved in the case, but merely potential beneficiaries of the litigation. Since Windle
was more than a passive beneficiary to the litigation, Costa is inapposite to resolving whether
his declaration falls within the scope of the privilege, and the County is not required to make a
showing of substantial interest in order to invoke the privilege. Furthermore, even assuming a
showing of substantial interest is required, the County has met its burden. Windle and the
County have a substantial interest in the outcome of the litigation between SBPEA and Local
721 since it deals with an alleged breach of EMACS. Any facts disclosed about the breach as a
result of the litigation would benefit the County, particularly in light of the inconclusive
findings of its own internal investigation.
Based on the above, Windle’s declaration meets the requirements of the litigation
privilege and its use in this proceeding is absolutely precluded. Preventing its use here furthers
the purposes of the privilege, namely to foster witness testimony and prevent an endless cycle
of litigation. Accordingly, all claims in the complaint relating to Windle’s declaration are
dismissed.
Denial of Access
In Omnitrans (2009) PERB Decision No. 2030-M, the Board first held that the MMBA
grants employee organizations a right of access to a public agency’s facilities for the purpose
of communicating with employees subject to reasonable regulation by the public agency. In
reaching this conclusion, the Board noted the importance of interpreting each California labor
14

relations statute with reference to the others to maintain “a coherent and harmonious system of
public employment relations laws.” (Ibid. at p. 13, citing Coachella Valley Mosquito and
Vector Control Dist. v. Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1089-1090.)
It then stated that in addition to creating an implied right of access, the MMBA section 3507,
subdivision (a), also contains an express provision further supporting a right of access for
employee organizations. (Ibid.) That section provides in relevant part:
A public agency may adopt reasonable rules and regulations after
consultation in good faith with representatives of a recognized
employee organization or organizations for the administration of
employer-employee relations under this chapter. The rules and
regulations may include provisions for all of the following:
[* * *]
(6) 	Access of employee organization officers and
representatives to work locations.
Because the facts in Omnitrans only involved the employer’s denial of access to an employee,
the Board left unanswered the question of non-employee union representatives’access rights
under the MMBA. (Ibid.)
In County of Riverside (2012) PERB Decision No. 2233-M (Riverside), the Board
addressed the question left unanswered in Omnitrans, supra, PERB Decision No. 2030. It
reaffirmed that MMBA section 3507, subdivision (a)(6), is a specific provision providing
employee organizations and their representatives access to employee work locations. (Ibid.) It
then formulated a presumptive right of access by non-employee union agents, subject to
reasonable regulation, upon the employer’s showing that a particular regulation is: (1)
necessary to the efficient operation of the employer’s business and/or safety of its employees;
and (2) narrowly drawn to avoid overbroad, unnecessary interference with the exercise of
statutory rights. (Ibid.) In general, non-employee representatives of employee organizations
15

________________________
enjoy access to non-work areas and may solicit for union membership or activity and distribute
literature to employees in such areas on the employees’non-work time. (Ibid.) A reasonable
regulation might include a requirement of advance notice prior to accessing non-work areas or
a requirement that a union representative identify himself upon arrival. (Ibid.) The Board
noted that its holding is consistent with the other statutes it administers and “in accordance
with the MMBA’s express access provision and its purpose of improving employer-employee
relations by facilitating communication between employees, through their organization, and
their public employer.” (Id. at p. 5.)
The County argues the right of access set forth in Omnitrans, supra, PERB Decision
No. 2030, and Riverside, supra, PERB Decision No. 2233, only applies to an employee
organization that is a “recognized employee organization.”4 Since Local 721 was not a
recognized employee organization as of May 2014, it only had the same access rights as
members of the public. However, Omnitrans and Riverside firmly root the access rights of
employee organizations to MMBA section 3507, subdivision (a)(6), which makes no
distinction between recognized and unrecognized employee organizations. Additionally,
nothing in those two cases suggests that the Board sought to treat access rights under the
MMBA differently than it does under its other statutes, where it makes no distinction between
recognized and unrecognized employee organizations. (See State of California (Departments
of Personnel Administration, Mental Health and Developmental Services) (1985) PERB
Decision No. 542-S; Regents of the University of California, Lawrence Livermore National
Laboratory (1982) PERB Decision No. 212-H; Long Beach Unified School District (1980)
4 MMBA section 3501, subdivision (b), defines “recognized employee organization”as
“an employee organization which has been formally acknowledged by the public agency as an
employee organization that represents employees of the public agency.”
16

________________________
PERB Decision No. 130.) Accordingly, the County’s argument that Local 721 possessed a
lesser form of access rights as an unrecognized employee organization is rejected.
Lamberto’s May 9 memorandum sets forth the County’s solicitation policy for
unrecognized employee organizations and prohibits all organizational activities by any
employee organization in “non-public”areas, which are defined to include “employee work
sites, break rooms, employee lunch rooms, and employee parking lots.” The policy further
prohibits such activities by any employee organization in all “work areas,”which are defined
to include “offices, employee work sites, break rooms, employee lunch rooms, and employee
parking lots.” The County asserts that its access policy for unrecognized employee
organizations flows from ERO section 13.0213, subdivision (d). Nothing in the plain language
of that ERO section indicates it applies to unrecognized employee organizations. That ERO
provision consists of only two sentences. It is unlikely that the drafters would have written the
first sentence to address only the rights of exclusive recognized employee organizations5 then,
without any transition or other signal, written the second sentence to address the rights of all
employee organizations. Windle’s testimony that ERO section 13.0213, subdivision (d),
applies to all employee organizations is unpersuasive in light of the fact that the County never
cites to that ERO section in its memoranda or other correspondence as the source of its policy
prohibiting solicitation activities by unrecognized employee organizations. Accordingly, I find
it more likely than not that the County’s solicitation policy for unrecognized employee
5 ERO section 13.0202, subdivision (k), defines “exclusive recognized employee
organization”as “an employee organization that has been certified by the County as the
employee organization, which received the majority of votes in a valid representation election
for an authorized employee representation unit.”
17

organizations does not flow from ERO section 13.0213, subdivision (d), but developed
elsewhere.
The record is unclear as to the genesis of the County’s policy regarding access rights of
unrecognized employee organizations. However, as early as March 2014, County managers
had articulated in writing that Local 721 was not permitted to engage in organizational
activities in work areas or break areas, including outdoor break areas, and were limited to
public parking lots. As set forth in Lamberto’s memorandum and implemented by its
managers, the County’s access policy for unrecognized employees is invalid on its face as
overbroad. Not only does the County’s policy deny access to nonpublic areas, but it also
precludes access to areas where employee organizations traditionally have access, such as
break rooms, by defining them as “work areas.” The Board has held that is unreasonable for
an employer to deem an entire facility a “work area.” (County of Riverside, supra, PERB
Decision No. 2233-M.) Even assuming some regulation of access by representatives of
unrecognized employee organizations is necessary, particularly to healthcare facilities, the
County has not met its burden to show that a blanket prohibition on access to all County
facilities is necessary to further the County’s efficient operations or the safety of its employees.
As applied to the events at issue in this case, the County has not adequately articulated
a justification for denying access to Local 721’s representatives. The outdoor break area at the
TAD office is undoubtedly a non-work area that employees use exclusively for non-work
activities. It is unclear why Local 721’s representatives should be denied access to this area,
especially since the County takes minimal steps to ensure that members of the public stay out
of the area. The only countermeasure to a member of the public accessing the area is an
employee telling them to leave.
18

________________________
Similarly, the breakroom in the Behavioral Health Services building is also
undoubtedly a non-work area that employees use exclusively for non-work activities. The
County asserts that it denied Lopez and Bon-Flores access to the breakroom because traveling
to the break room required passage through patient care areas. However, when a public health
facility uses its public passageways for both patient care and for access to non-work areas, it
must permit non-employee representatives to traverse the public passageways in order to
access the non-work areas. (The Regents of the University of California, University of
California at Los Angeles Medical Center (1983) PERB Decision No. 329-H.)6 Since the
hallways that Lopez and Bon-Flores traversed are used to access both patient care clinics and
the breakroom, the County was required to permit Lopez and Bon-Flores to use those hallways
to access the break room. Although Lopez and Bon-Flores had to pass through locked doors to
gain entry into the hallways, so do members of the public.7 There was no evidence that their
use of the hallway caused any disruption to the delivery of patient care nor was there any
evidence that Lopez and Bon-Flores were engaged in conduct that warranted their ejection
from the break room, such as causing a disturbance, camping out there all day, or harassing
employees.8
6 When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)
7 The record does not reflect whether members of the public are also escorted to their
destination by a County employee.
8 Although Farr testified that he received a report that a “union”was in the break room
bothering people, his testimony is uncorroborated hearsay and cannot be relied upon to make a
finding that Lopez or Bon-Flores were causing a disturbance. (See PERB Regulation 32176.)
Lopez and Bon-Flores were the only percipient witnesses to testify regarding their interactions
with employees, and Bon-Flores testified that when an employee made clear she did not want
to speak to him, he respected her wishes.
19

Based on the above, the County violated Local 721’s access rights when it denied its
representatives access to the breakroom at the Behavioral Health Services building and the
outdoor break area at the TAD office. While I am cognizant of the need for the County to
regulate access to its facilities, a categorical restriction on access is impermissible under the
MMBA.
Interference
The test for whether a respondent has interfered with the rights of employees under the
MMBA does not require that unlawful motive be established, only that at least slight harm to
employee rights results from the conduct. The courts have described the standard as follows:
All [a charging party] must prove to establish an interference
violation of section 3506 is: (1) That employees were engaged in
protected activity; (2) that the employer engaged in conduct
which tends to interfere with, restrain or coerce employees in the
exercise of those activities, and (3) that employer’s conduct was
not justified by legitimate business reasons.
(Public Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare
County (1985) 167 Cal.App.3d 797, 807.)
1. 	Employee communication with Local 721’s organizers
MMBA section 3502 grants employees “the right to form, join, and participate in the
activities of employee organizations of their own choosing for the purpose of representation on
all matters of employer-employee relations.” The County inhibited employees from exercising
this right when it prevented Lopez and Bon Flores from speaking to an employee inside the
breakroom at the Behavioral Health Services building and when it openly took the position
with Peterson’s group that they were not permitted inside the outdoor break area at the TAD
office. As discussed in more detail above, the County did not articulate a legitimate business
reason for its blanket prohibition on solicitation by employee organizations anywhere on
20

County facilities, including those traditionally deemed appropriate for such activities.
Accordingly, the County’s conduct vis-à-vis Local 721 organizers at the Behavioral Health
Services building and the TAD office constituted unlawful interference with employee rights.
2. 	Photographing County employees
An employer engages in unlawful surveillance when the employer photographs or
videotapes employees or openly engages in record keeping of employees participating in union
activities. (F.W. Woolworth Co. (1993) 310 NLRB 1197.) The mere observation of open,
public union activity on or near the employer’s property does not constitute unlawful
surveillance. (National Steel & Shipbuilding Co. (1997) 324 NLRB 499.) However, an
employer violates an employee’s right to engage in protected activity if it creates the
impression among employees that it is engaged in surveillance. (NLRB v. Simplex Time
Recorder Co. (1968) 401 F.2d 547.)
Feldhaus admitted to taking a photograph of Peterson speaking to County employees in
the outdoor break area. The fact that she deleted the photograph does not cure the harm
because the mere impression of surveillance is sufficient to chill the exercise of protected
activities. The County argues that Feldhaus was justified in taking the photograph based on
her belief that Peterson and other Local 721 representatives were engaged in inappropriate
behavior. However, Feldhaus’testimony describing Peterson’s alleged inappropriate behavior
seems exaggerated under the circumstances. By the time she went outside and took the
picture, a security guard had already been posted near the outdoor break area. It seems
unlikely that with the guard present Peterson would act in the way Feldhaus described or that
the guard would take no action to assist Feldhaus if Peterson was acting in the manner
Feldhaus described. The fact that the security guard was present also eliminates any need to
21

document Peterson’s alleged inappropriate behavior since the security guard could corroborate
Feldhaus’account if necessary. Accordingly, Feldhaus unlawfully interfered with employee
rights when she photographed Peterson speaking to County employees.
Unlawful Assistance
To state a prima facie violation of MMBA sections 3502 and 3503 and PERB
Regulation 32603, subdivision (d), the charging party must allege facts which demonstrate that
the employer’s conduct tends to interfere with the internal activities of an employee
organization or tends to influence the choice between employee organizations. (Santa Monica
Community College District (1979) PERB Decision No. 103 (Santa Monica CCD); Redwoods
Community College District (1987) PERB Decision No. 650 (Redwoods CCD).) Proof that an
employer intended to unlawfully dominate, assist or influence employees’free choice is not
required. Nor is it necessary to prove that employees actually changed membership as a result
of the employer’s act. (Santa Monica CCD, supra, PERB Decision No. 103; Redwoods CCD,
supra, PERB Decision No. 650.) The threshold test is “whether the employer’s conduct tends
to influence [free] choice or provide stimulus in one direction or the other.” (Santa Monica
CCD, supra, PERB Decision No. 103 at p. 22.)
Local 721 asserts that the County’s access policy for unrecognized employee
organizations violated its duty of strict neutrality. While Lamberto’s May 9 memorandum and
the County’s correspondence directly reference Local 721’s organizational activities, there is
nothing in the record to reflect that Local 721 was specifically targeted for exclusion from
County facilities. To the contrary, the County granted Local 721 and SBPEA the same level of
access to its facilities for organizational activities— none. There was no testimony or other
evidence that SBPEA representatives were granted access to County facilities for the purpose
22

of engaging in organizational activities. This is consistent with ERO section 13.0213,
subdivision (d), which creates a blanket prohibition on all solicitation activities by SBPEA and
mirrors the restrictions placed on Local 721. Although Windle testified SBPEA accessed
County facilities for the purpose of engaging in “representational activities”as set forth in
ERO section 13.0213, subdivision (d), allowing this type of access did not constitute unlawful
support for SBPEA since the exclusive representative has certain responsibilities, such as
processing grievances, that a challenging employee organization does not have. (See generally
State of California (Departments of Personnel Administration, Developmental Services, and
Mental Health) (1986) PERB Decision No. 601-S.) Accordingly, Local 721 did not establish a
prima facie case for unlawful assistance.
Violation of Local Rules
PERB Regulation 32603, subdivision (g), makes it an unfair practice for a public
agency to violate any local rule adopted pursuant to MMBA section 3507. At the formal
hearing, the complaint was amended to assert that the County’s conduct as already alleged in
the complaint violated ERO section 13.0211, subdivisions (a)(1) and (2). Those ERO
provisions state:
(a) It shall be an unfair labor practice for the County:
(1) To impose or threaten to impose reprisals on
employees, to discriminate or threaten to discriminate against
employees, or otherwise to interfere with, restrain, or coerce
employees because of their exercise of rights guaranteed by this
chapter.
(2) To dominate or interfere with the formation of any
employee organization or contribute financial support to it,
provided the rights recognized or granted to employee
organizations in this chapter shall not be construed as financial
support.
23

ERO section 13.0204 mirrors MMBA section 3502 and states:
(a) All employees shall have the following rights which may be
exercised in accordance with state law, the County Charger, and
applicable ordinances, rules and regulations or as provided in a
current memorandum of understanding that is in full force and
effect.
(1) The right to form, join, and participate in the activities
of employee organizations of their own choosing for the purpose
of representation on all matters of employer-employee relations.
(2) The right to refuse to join or participate in the
activities of employee organizations and the right to represent
themselves individually in their employment relations with the
County.
Subdivisions (a)(1) and (2) mirror unfair practices under MMBA section 3506.5, subdivisions
(a) and (d), respectively. Both parties agree that a violation under the MMBA would constitute
a derivative violation under the corresponding section of the ERO.
As discussed above, the County unlawfully interfered with employee rights in the way
it applied its access policy to Local 721’s organizers and by photographing Local 721’s
organizers speaking to employees. Accordingly, this conduct also interfered with employee
rights as articulated in ERO section 13.0204, subdivision (a), and violated ERO section
13.0211, subdivision (a)(1).
REMEDY
Pursuant to Government Code sections 3509, subdivision (a), and section 3541.3,
subdivision (i), PERB is given the power:
To investigate unfair practice charges or alleged violations of this
chapter, and take any action and make any determinations in
respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter.
24

It has been found that the County violated the MMBA, PERB Regulations, and its ERO
by adopting an unlawful policy governing the organizational activities of unrecognized
employee organizations and applying this policy to deny Local 721’s representatives access to
County facilities in May 2014. It has also been found that the County interfered with
employee rights by denying them the ability to speak to Local 721’s representatives and by
photographing employees as they were speaking to Local 721’s representatives. The
appropriate remedy is to order the County to cease and desist from such unlawful conduct.
(City of Torrance (2008) PERB Decision No. 1971-M.)
It is also appropriate to order the County to rescind its current restrictive policies
governing the access rights of unrecognized employee organizations as set forth in Lamberto’s
May 9, 2014 memorandum.
Finally, it is also appropriate to order the County to post a notice incorporating the
terms of this order. Since the County’s policy applied to Local 721’s organizing efforts across
the County, the notice must be posted at all locations where notices are usually posted to
employees at any County facility where Local 721 engaged in organizational activities between
January and June of 2014, including the TAD office and the Behavioral Health Services
building. Posting such a notice, signed by the authorized representative of the County, will
provide employees with notice that the County acted in an unlawful manner, that it is required
to cease and desist from such activity, and that it will comply with the order. It effectuates the
purposes of the MMBA that employees be informed of the resolution of this controversy.
(Omnitrans (2010) PERB Decision No. 2143-M.) In addition to physical posting of paper
notices, the notice shall be posted by electronic message, intranet, internet site, or other
electronic means customarily used by the County to communicate with employees at the
25

County facilities where Local 721 engaged in organizational activities between January and
June of 2014, including the TAD office and the Behavioral Health Services building. (City of
Sacramento (2013) PERB Decision No. 2351-M.)
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, it is found that the County of San Bernardino (County) violated the Meyers-
Milias-Brown Act (MMBA or Act), Government Code sections 3502, 3506, and 3506.5,
subdivisions (a) and (b); Public Employment Relations Board (PERB or Board) Regulation
32603, subdivisions (a) and (g) (Cal. Code Regs., tit. 8, sec. 31001 et seq.); and section
13.0211, subdivision (a)(1), of the County’s Employee Relations Ordinance by adopting an
unlawful policy governing the organizational activities of unrecognized employee
organizations and applying this policy to deny representatives of Service Employees
International Union Local 721 (Local 721) access to County facilities in May 2014. It has also
been found that the County interfered with employee rights by denying them the ability to
speak to Local 721’s representatives and by photographing employees as they were speaking to
Local 721’s representatives. All other claims in the unfair practice charge filed by Local 721
are dismissed.
Pursuant to MMBA section 3509, subdivision (b), it is hereby ORDERED that the
County, its governing board, and its representatives shall:
A. CEASE AND DESIST FROM:
1. 	Denying employee organizations the right to access County facilities for
the purpose of engaging in organizational activities.
26

2. 	Interfering with the right of employees to be represented by the
employee organization of their own choosing.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind the current access policy for unrecognized employee
organizations as articulated in the memorandum from Andrew Lamberto dated May 9, 2014.
2. 	Within 10 working days of the service of a final decision in this matter,
post copies of the Notice attached hereto as an Appendix at any County facility where Local
721 engaged in organizational activities between January and June of 2014, including the TAD
office and the Behavioral Health Services building. The Notice must be signed by an
authorized agent of the County, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of 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 notice of the actions taken to comply with this Order shall be
made to the General Counsel of PERB, or the General Counsel’s designee. The County shall
provide reports in writing, as directed by the General Counsel or her designee. All reports
regarding compliance with this Order shall be concurrently served on Local 721.
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
27

Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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, § 32300.)
A document is considered “filed”when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered “filed”when received by facsimile transmission before the close of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 32135, subdivision (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, § 32135, subds. (b), (c), and (d); see also
Cal. Code Regs., tit. 8, §§ 32090, 32091 and 32130.)
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, §§ 32300, 32305, 32140, and
32135, subd. (c).)
28

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-923-M, Service Employees
International Union Local 721 v. County of San Bernardino, in which all parties had the right
to participate, it has been found that the County of San Bernardino (County) violated the
Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq., PERB
Regulations (Cal. Code Regs., tit. 8, § 31001 et seq.), and its Employee Relations Ordinance
by adopting an unlawful policy governing the organizational activities of unrecognized
employee organizations, applying this policy to deny representatives of Service Employees
International Union Local 721 (SEIU) access to County facilities, and photographing
representatives of SEIU speaking to County employees.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Denying employee organizations the right to access County facilities for
the purpose of engaging in organizational activities.
2. 	Interfering with the right of employees to be represented by the
employee organization of their own choosing.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the current access policy for unrecognized employee
organizations as articulated in the memorandum from Andrew Lamberto dated May 9, 2014.
Dated: _____________________ 	COUNTY OF SAN BERNARDINO
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.