County of Orange * * * CLARIFIED BY Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90 and Trustees of the California State University (2026) PERB Decision No. 2915a-H * * * (PERB 2594M)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ORANGE COUNTY EMPLOYEES
ASSOCIATION, et al.,
Charging Parties,
v.
COUNTY OF ORANGE,
Respondent.
Case Nos. LA-CE-934-M
LA-CE-935-M
LA-CE-944-M
PERB Decision No. 2594-M
November 6, 2018
Appearances: Donald L. Drozd, General Counsel, for the Orange County Employees
Association; Reich, Adell & Cvitan, by Marianne Reinhold, Laurence S. Zakson, and Aaron G.
Lawrence, Attorneys, for the Orange County Attorneys Association; The Meyers Law Group,
by Adam N. Stern, Attorney, for International Union of Operating Engineers Local 501;
Liebert Cassidy Whitmore, by Adrianna E. Guzman, Attorney, for the County of Orange.
Before Banks, Winslow, Shiners, and Krantz, Members.
DECISION
WINSLOW, Member: These consolidated cases are before the Public Employment
Relations Board (PERB or Board) on exceptions by the Orange County Attorneys Association
(OCAA), the Orange County Employees Association (OCEA), and the County of Orange
(County) to a proposed decision by an administrative law judge (ALJ). The complaints alleged
that the County violated the Meyers-Milias-Brown Act (MMBA)1 by adopting what is referred
to as the Civic Openness in Negotiations (COIN) ordinance, without giving the charging
parties—OCAA, OCEA, and the International Union of Operating Engineers, Local 501
(Local 501)—notice and an opportunity to meet and confer. The ALJ concluded that some of
1 The MMBA is codified at Government Code section 3500 et seq. All statutory
references herein are to the Government Code, unless otherwise specified.
* * * CLARIFIED BY Trustees of the California State University v. Public Employment Relations Bd.
(2026) 118 Cal.App.5th 90 and Trustees of the California State University (2026) PERB Decision No.
2915a-H * * *

________________________
the disputed provisions of the ordinance fell within the scope of representation and were
therefore unlawfully adopted without giving OCAA, OCEA, or Local 501 notice and an
opportunity to bargain. The ALJ also considered, but rejected, OCAA’s theory that MMBA
section 3507 required the County to consult in good faith before adopting the ordinance.
The Board itself has reviewed the record in its entirety and considered the parties’
exceptions and responses thereto. Based on that review, we affirm in part and reverse in part
the ALJ’s decision.
SUMMARY OF FACTS
OCEA, OCAA, and Local 501 are the exclusive representatives of appropriate units of
employees within the meaning of PERB Regulation 32016, subdivision (b),2 and are
recognized employee organizations within the meaning of MMBA 3501, subdivision (b).3 The
County is a public agency within the meaning of MMBA section 3501, subdivision (c) and
PERB Regulation 32016 subdivision (a).
On May 14, 2014, the County posted the agenda for its May 20, 2014 Board of
Supervisors meeting. One of the agenda items was consideration of the first reading of the
proposed COIN ordinance.
At the May 20, 2014 meeting, representatives of OCEA, OCAA, and Local 501
objected to the County’s failure to give notice and an opportunity to bargain before adopting
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3 OCEA represents multiple County bargaining units including the General Unit, Health
Care Professional Unit, Community Services Unit, Office Services Unit, Sheriff’s Special
Officer and Deputy Coroner Unit, Supervising Management Unit, Probation Services Unit, and
Probation Supervisory Management Unit. OCAA represents the Attorney Unit, and Local 501
represents the Craft and Plant Engineer Unit.
2

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the ordinance. The first reading was continued to a meeting in June. Meanwhile, the parties
exchanged correspondence in which OCEA, OCAA, and Local 501 continued to demand
bargaining over the ordinance. The County maintained that the ordinance was outside the
scope of representation and refused to bargain.
The proposed COIN ordinance was amended over the course of several Board of
Supervisors meetings in June and July. At the August 5, 2014 meeting, the Board of
Supervisors approved the ordinance, which added section 1-3-21 to the County’s codified
ordinances, with the following provisions:
• 	Prospective Application: The ordinance shall not apply to
labor contract negotiations which had already commenced
prior to the adoption of the ordinance. (Subd. (a)(1).)4
• 	Independent Principal Negotiator: The County’s principal
negotiator shall not be an employee of the County. The use of
the principal negotiator may only be waived by a majority
vote of the Board of Supervisors. (Subd. (a)(2).)
• 	Description of Negotiable Ground Rules: The ordinance
shall not prevent the negotiation of ground rules to any
MMBA labor contract negotiations. Consistent with the
MMBA, the parties may, but are not required to, negotiate
preliminary procedural matters governing the conduct of
negotiations, including, but not limited to, the time and place
of bargaining, the order of issues to be discussed, the signing
of tentative agreements, the requirement of package
bargaining, or the use of supposals. (Subd. (a)(3).)
• 	Independent Economic Analysis—Opening Proposal: The
County Auditor-Controller shall prepare an independent
economic analysis or report which describes and summarizes
the fiscal costs to the County of benefits and pay currently
provided to bargaining unit members in comparison to the
costs of each term and condition offered in negotiations or set
forth as a supposal in negotiations. The report will itemize
4 All undifferentiated references to a subdivision hereafter refer to the COIN ordinance,
section 1-3-21.
3

the annual and cumulative costs which would result from the
adoption or acceptance of any initial meet and confer
proposal. (Subd. (b)(1).)
• 	Public Disclosure of Economic Analysis of Opening
Proposal—30 Days Before Consideration by the Board of
Supervisors: The report shall be made available for review
by the Board of Supervisors and the public at least 30 days
before consideration by the Board of Supervisors of an
opening proposal to be presented to a recognized employee
organization of an amended, extended, successor or original
Memorandum of Understanding (MOU). (Subd. (b)(2).)
• 	Independent Economic Analysis—Ongoing proposals:
The County Auditor-Controller shall prepare an updated
report itemizing annual and cumulative costs which would
result from the adoption or acceptance of each meet and
confer proposal from the recognized employee organization
or County. Such updates shall compare the compensation
elements with the prior year as well as to prior proposals
made. Reports and updates shall include best estimates as to
the change from currently computed pension unfunded
actuarial accrued liability and retiree medical unfunded
actuarial accrued liability. (Subd. (b)(3).)
• 	Reporting Out of Closed Session-Prior Formal Offers,
Counteroffers and Supposals: The Board of Supervisors
shall timely report out from closed session any and all prior
formal offers, formal counteroffers and supposals made by
either the County or the recognized employee organization
which were communicated to the County during closed
session. Such report shall also include the release of the
names of persons in attendance at, and locations of, and any
pertinent facts regarding the negotiations sessions. (Subds.
(c)(2) and (c)(3).)
• 	Duty to Advise During Closed Session: The Board of
Supervisors’ representatives have a duty to advise the Board
of Supervisors during any closed session of offers,
counteroffers, information provided, statements of position by
recognized employee organization and County representatives
since the last closed session. (Subd. (c)(4).)
• 	Disclosure of all Offers, Counteroffers and Supposals
within 24 hours to the Board of Supervisors and the
Public: All offers, counteroffers and supposals made by
4

either the County or the recognized employee organization(s)
shall be disclosed to the Board and the public within 24 hours
of the making of such proposal. (Subd. (c)(6).)
• 	Adoption of Agreement Only After a Minimum of Two
Board Meetings where Public has opportunity to Review
and Comment: The adoption of an agreement between the
County and the recognized employee organization shall only
take place after the matter has been heard at a minimum of
two board meetings and the public has had an opportunity to
review and comment on the matter. The agreement shall be
posted on the County website along with the final report and
updates made by the County Auditor-Controller. (Subd. (d).)
• 	Severability Clause: If any provision or clause of the
ordinance is held to be unconstitutional or otherwise invalid
by any court of competent jurisdiction, such invalidity will
not affect the other provisions or clauses. (Subd. (f).)
PROPOSED DECISION
The ALJ considered five of the COIN ordinance’s requirements: (1) that the County
Auditor-Controller prepare a pre-negotiations report of the cost of employee wages and
benefits and the cost of any initial proposals to be considered by the Board of Supervisors
(subd. (b)(1)); (2) that the Auditor-Controller’s report be available to the Board of Supervisors
and the public for 30 days before the Board of Supervisors considers its opening bargaining
proposal (subd. (b)(2)); (3) that the report be updated to include the cost of all proposals
throughout negotiations (subd. (b)(3)); (4) that all offers, counteroffers, and supposals made
during negotiations be publicly reported within 24 hours, and that the Board of Supervisors
publicly report out of its closed sessions all offers, counteroffers, and supposals (subds. (c)(2),
(c)(3), (c)(6)); and (5) that the Board of Supervisors may not adopt a tentative agreement until
it has held two public meetings (subd. (d)).
The ALJ analyzed these requirements under the test for negotiability articulated in
Claremont Police Officers Association v. City of Claremont (2006) 39 Cal.4th 623 (Claremont)
5

and applied by the Board in City of Alhambra (2010) PERB Decision No. 2139-M (Alhambra).
He concluded that the requirement of subdivision (b)(2)—which he termed a “30-day non-
negotiations period”—fell within the scope of representation, because it potentially interferes
with section 3505’s command to meet and confer “promptly.” The ALJ also concluded that
the requirements of subdivisions (c)(2), (c)(3), and (c)(6), fell within the scope of
representation, because they preclude an agreement to keep negotiations confidential. He
concluded that the remaining requirements did not fall within the scope of representation, as
they pertained to the County’s internal processes.
As for OCAA’s allegation that the County was required to consult in good faith over
the COIN ordinance pursuant to MMBA section 3507, even if it was not within the scope of
representation, the ALJ considered this allegation under the unalleged violation test, rather
than as a motion to amend the complaint. The ALJ concluded that this allegation met the test
for an unalleged violation, but that it failed on the merits. He determined that “[t]he
restriction[s] on ground rules in COIN do not fall into the same category of dispute resolution
procedures set forth in MMBA section 3507, subdivision (a)(5), which would most likely
include: mediation, factfinding, or interest arbitration” and that “[i]t also does not fall under the
catchall subsection of MMBA section 3507, subdivision (a)(9), as it does not concern
employee organization/employer ‘representation’ matters (recognition, etc.) which is the focus
of MMBA section 3507.”
As a remedy for the County’s failure to bargain, the ALJ ordered that the County
rescind the unlawfully adopted portions of the ordinance and post a notice of its violation by
physical and electronic means “customarily used by the County to communicate with its
employees in the bargaining units represented by OCEA, OCAA, and [Local 501].”
6

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THE PARTIES’ EXCEPTIONS
OCEA and OCAA except to the ALJ’s conclusions regarding subdivisions (b)(1) and
(b)(3) of the ordinance. OCAA also excepts to the ALJ’s conclusion regarding subdivision
(b)(2) as being too narrow, and to the scope of the proposed order. The County excepts to the
ALJ’s conclusions that subdivisions (b)(2) and (c)(2), (c)(3), and (c)(6) are within the scope of
representation.5
DISCUSSION
I. 	Unilateral Change
The ALJ determined that the only element of PERB’s unilateral change test at issue in
this case is whether the COIN ordinance concerned a matter within the scope of representation.
(See County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 18-19.) This is also the
only element raised by the parties’ exceptions.
The scope of representation under the MMBA includes “all matters relating to
employment conditions and employer-employee relations, including, but not limited to, wages,
hours, and other terms and conditions of employment, except, however, that the scope of
representation shall not include consideration of the merits, necessity, or organization of any
service or activity provided by law or executive order.” (§ 3504.) This case does not directly
involve wages, hours, or other terms and conditions of employment, but rather aspects of the
COIN ordinance that are claimed to be negotiable because they constitute ground rules for
negotiations.
5 No party has excepted to the ALJ’s conclusion that subdivision (d) is outside the
scope of representation and the scope of consultation. Therefore, it is not before us. (PERB
Regulation 32300, subd. (c).) Nor has any charging party contended that unilateral adoption of
subdivision (a) of the ordinance was unlawful.
7

The Board has long held that “the parties must bargain collectively about the
preliminary arrangements for negotiations in the same manner they must bargain about
substantive terms or conditions of employment.” (Stockton Unified School District (1980)
PERB Decision No. 143, p. 23 (Stockton), citing General Electric Co. (1968) 173 NLRB 253;
see also Anaheim Union High School District (1981) PERB Decision No. 177, p. 10
(Anaheim), citing Borg-Warner Corp. (1972) 198 NLRB 726; St. Louis Typographical Union
No. 8 (1964) 149 NLRB 750 [no legal basis for distinguishing negotiations on ground rules
from negotiations on substantive issues]; Gonzales Union High School District (1985) PERB
Decision No. 480, adopting proposed decision, p. 47.) Thus, ground rules are “equivalent to a
mandatory subject of bargaining.” (Compton Community College District (1989) PERB
Decision No. 728, adopting proposed decision, p. 56.) We see no reason not to apply this
precedent when interpreting the MMBA. (See Coachella Valley Mosquito & Vector Control
Dist. v. PERB (2005) 35 Cal.4th 1072, 1090.)
Arguing a point not raised by any party in this case, our dissenting colleague would
overrule our longstanding case law holding that ground rules are a mandatory subject of
bargaining and follow the National Labor Relations Board (NLRB) and some other
jurisdictions in treating ground rules as a permissive subject. As we have consistently noted,
PERB may take guidance from the NLRB, but we are not compelled to follow every turn of the
private sector case law, especially where we conclude that it does not effectuate the purposes
of the statutes we are charged with enforcing. (Napa Valley Community College District
(2018) PERB Decision No. 2563, p. 13; Capistrano Unified School District (2015) PERB
Decision No. 2440, p. 28.) In this case, we decline to follow the NLRB rule for several
reasons.
8

At the outset, we note that this Board has treated ground rules as a mandatory subject of
bargaining for 38 years. (Stockton, supra, PERB Decision No. 143.) In Anaheim, supra,
PERB Decision No. 177, pp. 8-12, the Board explained:
It is essential to the negotiating scheme of things that neither side
be afforded, by law, dominance over the process, thus negating
the concept of mutuality and good faith. Allowing the employer
to unilaterally dictate the matter of released time, including the
number of employee negotiators, amounts of compensation and
scheduling of sessions, would give to the employer precisely that
objectionable form of dominance. . . .
. . . . To permit the employer to decide at the outset how many
hours or days will finally be required and at what times
negotiations shall take place and over what duration per session is
to apply an inherently unrealistic formula to these arrangements
and, by definition, to establish an unreasonably inflexible and
mechanistic policy.
[¶ . . . ¶]
[T]here is no legal basis for distinguishing negotiations on
ground rules from negotiations on substantive issues. The duty to
bargain means just that. The employer’s position on procedural
issues, as its position on wages, hours or terms and conditions of
employment, is to be expressed through its own proposals or
counterproposals.
(Emphasis added.) The Board has reaffirmed this rule time and again. (Gonzales Union High
School District, supra, PERB Decision No. 480, p. 47-48; Compton Community College
District, supra, PERB Decision No. 728, adopting proposed decision, p. 56; Sierra Joint
Community College District (1981) PERB Decision No. 179, p. 6 [neither party may
unilaterally dictate scheduling of negotiations]; State of California (Board of Equalization)
(1997) PERB Decision No. 1235-S, p. 3; Children of Promise Preparatory Academy (2018)
PERB Decision No. 2558, p. 26 [ignoring proposal for ground rules considered a flat refusal to
bargain].) This consistent treatment of ground rules as a mandatory subject of bargaining has
9

established a settled expectation among PERB’s constituents. To upset that expectation in a
case in which the issue was not raised by the parties and therefore not briefed by them would
be a disservice to rational adjudication.
These four decades of treating ground rules as a mandatory subject belie the dissent’s
belief that PERB’s rule makes it more likely that a party will insist to impasse on a ground rule
and thereby stifle negotiations in their inception. Our case law discloses no such adverse
consequences. In contrast, one of the cases the dissent cites reveals exactly this consequence
occurring under the rule the dissent proposes. (Lincoln County, 2018 WL 4292910
[Washington Public Employment Relations Commission].) During the term of a collective
bargaining agreement, the employer unilaterally adopted a COIN-type resolution declaring,
among other things, that it would “conduct all collective bargaining contract negotiations in a
manner that is open to the public.” (Id. at p. 1). Thereafter, when the employer and an
employee organization began negotiating a new contract, they vehemently disagreed on
whether to bargain in private as they had in the past, or to follow the employer’s newly passed
resolution and invite the public to negotiations. Each party refused to negotiate unless the
other conceded this ground rule issue, and each filed an unfair practice charge averring that the
ground rule was a permissive subject of bargaining, and that the other party was unlawfully
refusing to negotiate while insisting to impasse on a permissive subject. Twenty months after
the parties’ contract had expired, with the parties still unable to begin negotiations, the
Commission ruled that the topic was a permissive subject of bargaining and that both parties
had therefore unlawfully insisted to impasse on a permissive topic. The Commission then
considered the appropriate remedy. The hearing examiner’s order had directed that the parties
must return to the table and work it out, leading one of the parties to indicate, on appeal, that
10

such an order “begs the question, ‘What do we do now?’” (Id. at p. 8). The Commission
answered as follows: “What the parties do now is . . . [t]he parties must bargain.” (Ibid.)
Thus, faced with each side refusing to bargain over a ground rule, the Commission concluded
that the proper remedy was to treat the ground rule as essentially a mandatory topic, even while
labeling it permissive. (Id. at p. 10.) Indeed, the extent to which the Commission fell back on
treating the issue as essentially a mandatory topic is evident throughout the decision, especially
where the Commission indicates that parties are out of compliance if they “respond[] to the
other party’s proposals on how to conduct the negotiations by simply saying ‘no.’” (Ibid.)
Equally importantly, the Commission recognized that no matter how it labeled the issue, and
no matter how much the parties might try to negotiate, they might still end up disagreeing.
Accordingly, the Commission ordered that if the parties could not reach agreement on public
versus private bargaining during two additional bargaining sessions, they must engage a
mediator, and if they still could not reach agreement at the close of mediation, then the union’s
position would prevail and bargaining would occur in private. (Id. at p. 10.)
Lincoln County, supra, 2018 WL 4292910, thus demonstrates why a bargaining break
down over ground rules is at least as likely, if not more likely, to occur if such topics are
labeled as permissive. The case also highlights that for bargaining parties, the most important
issue may not be whether a topic is mandatory or permissive, but whether there is a default
position established by statute or precedent that impacts parties’ ability to impose or insist
upon their position at various stages. Indeed, for some permissive topics, one side has a
prerogative to make a unilateral change or to insist that none be made, while as to other
permissive topics both parties have the right to insist that no change be made. For instance, if
the parties cannot agree on the permissive topic of unit scope, or one party declines to
11

negotiate on that topic, then neither side may alter the status quo. (Aggregate Industries v.
NLRB (D.C. Cir. 2016) 824 F.3d 1095, 1099.) But if the parties cannot agree on a permissive
matter involving internal union affairs, or a union declines to negotiate on that topic, then the
union has full prerogative to make changes. (Id. at p. 1099, fn. 4.) The same is true as to
certain mandatory topics. (See, e.g., City of San Ramon (2018) PERB Decision No. 2571-M,
pp. 13-14 [contract duration is a mandatory subject, but after impasse employer may not
impose duration for new terms of employment]; Fresno County In-Home Supportive Services
Public Authority (2015) PERB Decision No. 2418-M, pp. 23-24 [although no-strike clause is a
mandatory subject, after impasse an employer may not impose a no-strike clause or other
waivers of statutory rights].)
In declaring that bargaining in private should be the default, Washington’s Commission
is not alone. PERB and other labor agencies have established similar defaults—irrespective of
whether those agencies treat the topics as mandatory or permissive—in order to provide
guidance that supports sound labor relations, and to prevent negotiations from stalling over
preliminary topics. (See, e.g., Petaluma City Elementary School District/Joint Union High
School District (2016) PERB Decision No. 2485, pp. 28-29 & 33-34 (Petaluma) [although
presence of observers at bargaining is negotiable, the legislative scheme provides a default rule
under which there are no such observers, absent agreement, meaning neither party is entitled to
insist on the presence of observers, nor to impose such a condition after impasse].)
Along the same lines, the dissent cites a series of non-California cases holding that a
party may not insist on observers at bargaining, and also may not insist that the other party
agree to audio or stenographic recording of negotiations. (Bartlett-Collins Co. (1978)
237 NLRB 770, 773 & fn. 9, enf. (10th Cir. 1981) 639 F.2d 652 [finding that recording inhibits
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free bargaining, the default should therefore be no recording, and any party’s proposal to
change that default is permissive and may not be insisted upon]; Latrobe Steel Co. v. NLRB
(3d Cir. 1980) 630 F.2d 171, 176 [employer unlawfully insisted on presence of stenographers
as a precondition to bargaining]; Local 342-50, United Food and Commercial Workers Union
(2003) 339 NLRB 148, 155 [applying the Bartlett-Collins Co. default rule to grievance
meetings]; Washington County Consolidated Communications Agency, 2014 WL 3339216, p. 8
[Oregon Employees Relations Board] [“[W]e have decided to adopt the approach taken by the
NLRB on the subject of recording bargaining sessions”]; County of Kane (1988) 4 PERI
¶ 2031 [Illinois State Labor Relations Board] [employer had no right to insist on verbatim
record of negotiations]; City of Deerfield Beach (1981) 7 FPER ¶ 12438 [Florida Public
Employees Relations Commission] [tape recording is permissive subject of bargaining]; Town
of Shelter Island (1979) 12 PERB ¶ 3112 [New York Public Employment Relations Board]
[parties may propose having observers at bargaining, and may seek mediation on the issue, but
may not insist to impasse on that issue].)6
We have no quibble with the above-stated default rule that no party may unilaterally
impose or insist on negotiations being recorded or on inviting observers to bargaining.
However, based on our precedent, including Petaluma, supra, PERB Decision No. 2485, we
6 One case upon which the dissent relies involved a ground rules dispute on a different
topic. In University of Illinois, Chicago (2018) 34 PERI ¶ 173, a non-precedential decision by
the executive director of the Illinois Educational Labor Relations Board, it was concluded that
the parties’ history, in which they had typically commenced successor bargaining in the spring
prior to a summer contract expiration, provided the default for when the parties’ next round of
bargaining should begin. The employer was therefore found to have had no duty to bargain in
response to a union’s demand for early negotiations. We need not delve into whether such
history sets a “default” in any particular set of circumstances, but we disagree that one party’s
request to start successor negotiations earlier than in the past is not a mandatory topic of
bargaining. Such a rule is antithetical to sound labor relations.
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reach that result not by artificially labelling ground rules issues as permissive. As noted above,
labeling a topic as mandatory or permissive does not resolve whether one party may or may not
impose or insist on a particular position. In other words, even as to ground rule issues for
which there is an established default, such as recording negotiations or allowing observers at
negotiations, it makes sense for PERB to maintain its longstanding rule that such topics are
mandatory rather than permissive. Either party must negotiate in good faith regarding such
issues at the other party’s request, but there is a default that applies in the absence of
agreement. This arrangement has worked well in California for decades, and we continue to
believe it serves the parties best in avoiding the consequences the dissent fears.
As to some ground rule topics, there is no default in the absence of an agreement. For
instance, there is no established default that prescribes particular days of the week, times,
intervals, durations, frequencies, topic sequences, or locations for bargaining. As to these
topics, too, we find it preferable to label them as mandatory. Indeed, even in jurisdictions that
label all ground rules as permissive, it is rare to find a decision suggesting that any party may
decline to negotiate over these standard topics.7
There are other flaws in the dissent’s belief that our rule of the last four decades will
suddenly begin to cause contract negotiations to be hung up on ground rules. A disagreement
over ground rules would not privilege either side to declare an overall impasse or to refuse
further meetings. There is no impasse absent an overall deadlock, meaning that a party cannot
separate out just one negotiable subject and declare impasse on that topic alone. (City of
7 No party has the right to impose unilaterally its positon regarding days of the week,
times, intervals, durations, frequencies, topic sequences, or locations for bargaining. (See, e.g.,
Anaheim, supra, PERB Decision No. 177, p. 9.) While the dissent appears to agree, it is
willing only to opine that a party’s refusal to discuss ground rules “could still be evidence of
bad faith bargaining.”
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Roseville (2016) PERB Decision No. 2505-M, p. 33.) In order for an overall impasse to occur
based on a single disagreement, the subject of disagreement must be of overriding importance.
(Ibid.) For that reason, and given that the duty to meet and confer in good faith does not
permit a party to insist, for instance, on unreasonably narrow windows in which to bargain,8 it
is not surprising that California bargaining parties have adapted to the PERB rule and avoided
the ills that the dissent predicts.
Moreover, the dissent ignores that in many cases, including this one, a ground rules
issue arises not during contract negotiations, but rather as part of an employer’s mid-contract
effort to legislate new procedures for the future. (See, e.g., Lincoln County, 2018
WL 1833319, pp. 2, 7, fn. 4 [discussing how employer came to believe it would gain a
strategic bargaining advantage by unilaterally passing a resolution requiring public
negotiations].) While the dissent urges us to overrule longstanding precedent and label ground
rules as a permissive subject of bargaining, it is unclear if the dissent assumes that under such a
revised rule employers would enjoy the right to legislate new ground rules unilaterally.9
8 See, e.g., Gonzales Union High School District, supra, PERB Decision No. 480,
adopting proposed decision at p. 38 [union representing school district employees could not
declare that it was unavailable to bargain during summer break].
9 As discussed ante, it would not be safe to assume this is true for the topics at issue in
the County’s ordinance, as both for certain mandatory topics and for certain permissive topics,
employers are constrained from making unilateral changes. Because in this case the County
passed its ordinance without notice and an opportunity to meet and confer, and the County
refused to meet and confer with OCEA, OCAA and Local 501, we are not called upon to
determine what defaults may or may not apply as to each of the ordinance’s topics, nor must
we decide whether the County could have imposed or insisted on any part of the ordinance
after meeting and conferring in good faith and reaching a bona fide impasse, or as a condition
to signing a new contract. Generally, however, unilateral action as to ground rules will often
have a destructive impact on negotiations by torpedoing such efforts before they get underway.
Such conduct could therefore constitute an indicia of bad faith under the totality of
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circumstances test, even if it did not constitute a per se violation as a unilateral change.
(Stockton, supra, PERB Decision No. 143, p. 24.)
However, two things are clear to us regarding an employer’s mid-contract desire to alter the
parameters of future negotiations. First, treating ground rules as a mandatory topic is the most
straightforward path to improving communication between parties, maximizing their
opportunities to achieve a strong relationship, and preventing unilateral self-help designed to
create a more favorable playing field for one side in future negotiations. Second, such
discussions are a stand-alone negotiation occurring at a time that does not necessarily delay
other negotiations.
In sum, as a matter of policy, we believe treating the general subject of ground rules as
a mandatory subject of bargaining better effectuates the purposes of the MMBA and the other
statutes we administer. The MMBA declares dual purposes in section 3500: “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 to promote
the improvement of employer-employee relations. These purposes are best served by
collective bargaining. We therefore decline to alter our long-held rule that ground rules must
be bargained over just as any other mandatory subject of bargaining.
The ALJ acknowledged the Board’s precedent on the negotiability of ground rules, but
noted that it has not been specifically determined whether ground rules are negotiable under
the MMBA. To answer this question, and to determine whether the specific aspects of the
COIN ordinance were negotiable, the ALJ turned to the three-part test applied by the Board in
Alhambra, supra, PERB Decision No. 2139-M, which is derived from the Supreme Court’s
16

decision in Claremont, supra, 39 Cal.4th 623. We believe this was an unnecessary analytical
step, and not well-suited to determine whether matters within the general topic of ground rules
are negotiable.
Claremont prescribes a three-step balancing test “to determine whether management
must meet and confer with a recognized employee organization . . . when the implementation
of a fundamental managerial or policy decision significantly and adversely affects a bargaining
unit’s wages, hours, or working conditions.” (Claremont, supra, 39 Cal.4th 623, 637.) The
California Supreme Court explained the test as follows:
First, we ask whether the management action has “a significant
and adverse effect on the wages, hours, or working conditions of
the bargaining-unit employees.” . . . If not, there is no duty to
meet and confer. . . . Second, we ask whether the significant and
adverse effect arises from the implementation of a fundamental
managerial or policy decision. If not, then . . . the meet-and-
confer requirement applies. . . . Third, if both factors are present
. . . we apply a balancing test. The action “is within the scope of
representation only if the employer’s need for unencumbered
decisionmaking in managing its operations is outweighed by the
benefit to employer-employee relations of bargaining about the
action in question.”
(Id. at p. 638, citations omitted.) Claremont acknowledged that First National Maintenance
Corporation v. NLRB (1981) 452 U.S. 666 (First National Maintenance) “applied a similar
balancing test.” (Claremont, supra, at p. 637.)
In Alhambra, supra, PERB Decision No. 2139-M, the Board described Claremont as
establishing the “test to determine whether a matter is within the scope of representation under
the MMBA.” (Id. at p. 13.) In that case, the issue was whether the minimum qualifications for
a bargaining unit position was within the scope of representation. Applying Claremont, the
Board determined it was not.
17

A year after Alhambra issued, the California Supreme Court again clarified the test for
determining the scope of bargaining under the MMBA. (International Assn. of Fire Fighters,
Local 188, AFL-CIO v. PERB (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters).) The
Court observed that there are three distinct categories of managerial decisions, each with its
own implications for the scope of representation: (1) “decisions that ‘have only an indirect and
attenuated impact on the employment relationship’ and thus are not mandatory subjects of
bargaining,” such as advertising, product design, and financing; (2) “decisions directly
defining the employment relationship, such as wages, workplace rules, and the order of
succession of layoffs and recalls,” which are “always mandatory subjects of bargaining”
(emphasis added); and (3) “decisions that directly affect employment, such as eliminating jobs,
but nonetheless may not be mandatory subjects of bargaining because they involve ‘a change
in the scope and direction of the enterprise’ or, in other words, the employer’s ‘retained
freedom to manage its affairs unrelated to employment.’” (Ibid.) The Court explained that the
First National Maintenance balancing test applies only to the third category of managerial
decisions:
To determine whether a particular decision in this third category
is within the scope of representation, the high court [in First
National Maintenance] prescribed a balancing test, under
which “in view of an employer’s need for unencumbered
decisionmaking, bargaining over management decisions that have
a substantial impact on the continued availability of employment
should be required only if the benefit, for labor-management
relations and the collective-bargaining process, outweighs the
burden placed on the conduct of the business.”
(Richmond Firefighters, supra, at p. 273, quoting First National Maintenance, supra,
452 U.S. 666, 679.)
18

By explaining that decisions directly defining the employment relationship are always
mandatory subjects of bargaining, Richmond Firefighters provides an important clarification of
the limits of Claremont. It is not necessary to ask whether such a decision has a “significant
and adverse effect” on wages, hours, or other terms and conditions of employment, nor is it
necessary to balance that effect against the employer’s need for unencumbered
decisionmaking. This is consistent with our own case law. (See Huntington Beach Union
High School District (2003) PERB Decision No. 1525, pp. 8-9 [when the Legislature expressly
places a subject within the scope of representation, it is “neither necessary nor proper to . . .
balance[] the potential benefits of negotiating a particular item against the employer’s
management prerogatives”].) And indeed, the literal application of the Claremont test to
decisions directly defining the employment relationship would conflict with decades of settled
labor law. Because a decision to increase employee wages or benefits would not have an
adverse effect on employees, those decisions would be withheld from the scope of
representation. But “[w]hether a change is beneficial or detrimental to the employees is a
decision reserved to the employees as represented by their union.” (Solano County Employees’
Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.) Increases in wages and benefits
are fully negotiable. (See, e.g., NLRB v. Katz (1962) 369 U.S. 736, 743; Ruline Nursery Co. v.
Agricultural Labor Relations Bd. (1985) 169 Cal.App.3d 247, 266; Modesto City Schools (1983)
PERB Decision No. 291, pp. 47-48.) Richmond Firefighters confirms that Claremont did not
signal a departure from this longstanding principle.
Thus, under Richmond Firefighters, a balancing test applies only to employer decisions
that directly affect employment, such as eliminating jobs, but also involve “‘a change in the
scope and direction of the enterprise’ or, in other words, the employer’s ‘retained freedom to
19

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manage its affairs unrelated to employment.’” (Richmond Firefighters, supra, 51 Cal.4th 259,
273; see also International Assn. of Firefighters, Local 230 v. City of San Jose (2011)
195 Cal.App.4th 1179, 1210 [“The scope of representation includes, among other things,
management decisions ‘directly defining the employment relationship, such as wages,
workplace rules, and the order of succession of layoffs and recalls’” (quoting Richmond
Firefighters)].) To the extent Alhambra, supra, PERB Decision No. 2139-M, conflicts with
Richmond Firefighters on this point—specifically, by suggesting that the Claremont test
always applies to determine whether a matter is within the scope of representation under the
MMBA—we disavow it.10
Applying the proper framework, our first inquiry in this case is whether the disputed
provisions of the COIN ordinance constitute ground rules. Ground rules may include “the time
and place for bargaining to start, the order of issues to be discussed, the final settlement
conditions that may be imposed, questions of ratification and approval . . . , and a variety of
similar procedural matters.” (Anaheim, supra, PERB Decision No. 177, p. 9.)11 As another
example, parties sometimes propose that negotiations should remain confidential. (Muroc
Unified School District (1978) PERB Decision No. 80, p. 3; King City Joint Union High
School District (2005) PERB Decision No. 1777, adopting proposed decision, p. 5.) In short,
10While Claremont remains good law, we must acknowledge the Supreme Court’s more
recent pronouncement in Richmond Firefighters that the First National Maintenance-type
balancing test—the same test prescribed by Claremont—applies only to some managerial
decisions, not those directly defining the employment relationship. (Richmond Firefighters,
supra, 51 Cal.4th 259, 273.)
11 Subdivision (a)(3) of the ordinance itself defines ground rules as “preliminary
procedural matters governing the conduct of negotiations including, but not limited to, the time
and place for bargaining, the order of issues to be discussed, the signing of tentative
agreements, the requirement of package bargaining, or the use of supposals.”
20

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ground rules directly regulate the bargaining relationship between the parties. If the provisions
of the COIN ordinance qualify as ground rules, they are negotiable like any other mandatory
subject (Stockton, supra, PERB Decision No. 143, p. 23), regardless of any managerial interest
the County might assert (Richmond Firefighters, supra, 51 Cal.4th 259, 272).
If the ordinance’s provisions do not directly regulate the bargaining relationship,
however, they may still be negotiable if they have a direct impact on the negotiating process,
and if the benefit of negotiations outweighs the County’s need for unencumbered
decisionmaking. (Richmond Firefighters, supra, 51 Cal.4th 259, 272.) On the other hand, if
their impact is indirect and attenuated, they are not negotiable. (Ibid.)
Some fundamental matters related to negotiations are reserved to the parties and
excluded from negotiations, such as the identity of a party’s bargaining representatives.
(Anaheim Union High School District (2015) PERB Decision No. 2434, p. 16.) Moreover,
while ground rules must be negotiated in good faith, for certain ground rules there are, as noted
above, established defaults that neither party may insist on changing. (See, e.g., Anaheim,
supra, PERB Decision No. 177, pp. 13-14 [proposal to charge union for the cost of statutory
released time]; Bartlett-Collins Co., supra, 237 NLRB 770 [stenographic recording of
negotiations]; cf. Petaluma, supra, PERB Decision No. 2485, pp. 33-34 [observers at
negotiations].) Proposed ground rules that conflict with the purpose of the MMBA or any
specific obligation imposed or right secured by the statute would also be considered non-
mandatory.12
12 This case was litigated as a violation of the duty to bargain, and did not allege that
the COIN ordinance was an unreasonable local rule under PERB Regulation 32603,
subdivision (f), which describes as an unfair practice, adopting or enforcing a “local rule that is
21

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not in conformance with MMBA.” We therefore save for another day resolution of whether
certain ground rules would be prohibited because they are unreasonable.
With these principles in mind, we next consider whether the challenged provisions of
the County’s ordinance are ground rules over which the County had a duty to negotiate.
Subdivision (b)(1)
Subdivision (b)(1) of the ordinance requires that before the County makes an opening
proposal, the Auditor-Controller must provide a report of the fiscal costs of the current
compensation and benefits received by the bargaining unit in question, as well as the costs of
possible opening proposals by the County. The ALJ concluded that this provision concerns the
County’s fundamental managerial prerogative and is outside the scope of representation.
OCEA excepts to this conclusion.
We do not believe subdivision (b)(1) is a ground rule that directly regulates the
bargaining relationship between the parties or has any direct impact on procedures for
negotiations. Although it mandates certain actions that must occur before negotiations begin,
these actions have to do with the County’s internal process for arriving at its opening proposal.
Certainly, in the absence of an ordinance, nothing would prevent the County from adhering to
this procedure. An employer is entitled to deliberate privately and fully develop a proposal
affecting negotiable subjects before presenting it to the employees’ representative. (City of
Sacramento (2013) PERB Decision No. 2351-M, p. 30, fn. 15.) We therefore agree with the
ALJ’s conclusion that such matters are within the employer’s managerial prerogative, just as a
proposal that intrudes on a union’s process for formulating its own opening proposals—such as
by surveying their members, researching the existing terms and conditions of employment, and
22

analyzing the costs of possible proposals—would be within the union’s exclusive purview.
(NLRB v. Wooster Div. of Borg-Warner Corp. (1958) 356 U.S. 342, 350.)
In its exceptions, OCEA argues that this provision is negotiable because the entire
COIN ordinance was “deliberately calculated to inhibit” the meet-and-confer process. The
County’s intent, however, is not our concern in determining whether it has committed a per se
violation of the duty to bargain. (City of Montebello (2016) PERB Decision No. 2491-M,
p. 10.) Our concern is with the effect of the provision on the statutory bargaining process.
(Fresno County In-Home Supportive Services Public Authority, supra, PERB Decision
No. 2418-M, p. 13.) Because it merely prescribes the County’s internal process for deciding
on an initial proposal, subdivision (b)(1) is consistent with the MMBA’s collective bargaining
process.
OCEA also argues that “in the Orange County environment,” this provision “could
conflict with the parties’ obligation to meet and confer in good faith, and could lend to the
domination of the bargaining process or unduly delay negotiations.” (Emphasis in original.)
OCEA offers no further argument on this point, and cites no facts in the record regarding the
“Orange County environment.” If these provisions are in fact employed in a way that inhibits
good faith bargaining, the remedy is a surface bargaining charge.
Therefore, we reject OCEA’s exceptions and agree with the ALJ that subdivision (b)(1)
of the ordinance is not within the scope of representation.
Subdivision (b)(2)
Subdivision (b)(2) of the ordinance establishes that the report prepared by the Auditor-
Controller must be made public for 30 days before the Board of Supervisors decides on its
opening proposal for “negotiation of an amended, extended, successor, or original
23

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memorandum of understanding.” The ALJ termed this a “non-negotiations” period, and
compared it to the “sunshine” provisions found in other statutes under PERB’s jurisdiction,
e.g., the Educational Employment Relations Act (EERA), the Higher Education Employer-
Employee Relations Act (HEERA), and the Ralph C. Dills Act (Dills Act).13 The Dills Act
prescribes a 7-day period of non-negotiations, during which the public has an opportunity to
comment on initial proposals, while EERA allows for a “reasonable” period of time for public
comment before negotiations begin. The MMBA requires the parties to meet “promptly” upon
written request by either party and has no “sunshine” provision. Given the disparity between a
seven-day non-negotiations period and a 30-day period, the ALJ determined the 30-day period
was inconsistent and contrary to the obligation to meet “promptly.” The ALJ further noted:
The MMBA’s requirement to meet “promptly” upon request
creates an even greater impetus for the parties to decide together
how soon the parties should meet after an opening proposal is
sunshined. Such bilateral negotiation of a reasonable non-
negotiations period satisfying the “promptly” requirement would
be an example where the benefit to employer-employee relations
of bargaining over this non-negotiations time period would
outweigh the employer’s need for unencumbered decision-
making. . . . Such negotiations would eliminate disputes in the
future as to when bargaining should commence. Therefore, the
non-negotiations time period after the sunshine of an opening
proposal falls within the scope of representation.
We agree with the ALJ. A period of non-negotiations is a procedure that affects the bilateral
negotiations process, and in the absence of a statutory prescription, the parties must determine
bilaterally whether negotiations should be placed on hold while the public has an opportunity
to comment on initial proposals, and if so, for how long. (Cf. Santa Clara County Correctional
Peace Officers’ Assn. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1038-1039 [the
13 EERA is codified at section 3540 et seq. HEERA is codified at section 3560 et seq.
The Dills Act is codified at section 3512 et seq.
24

MMBA does not specify how long parties must meet and confer, but parties may “agree in
advance on a period of time that they consider reasonable to allow them to freely exchange
information and proposals and endeavor to reach agreement”].) By banning negotiations on
wages, hours and working conditions for at least 30 days, the County unilaterally dictated this
important procedural issue in violation of its duty to negotiate in good faith over ground rules.
(Stockton, supra, PERB Decision No. 143, pp. 8-12.)
The County excepts to the ALJ’s characterization of this 30-day period as one of “non-
negotiations,” arguing that not all negotiations are prohibited during this time. For example,
according to the County, the parties could discuss “ground rules” and information requests, and
explain or clarify initial bargaining requests. We reject this exception. The provision prohibits
the County from submitting its opening proposal for at least 30 days. Without seeing an
opening proposal, the unions are unduly hampered in making information requests. There are
no initial proposals to explain or clarify. A moratorium on presenting an opening substantive
proposal on wages, hours and working conditions is a “non-negotiations” period for all intents
and purposes, and the ALJ did not err in naming it as such.
Subdivision (b)(3)
Subdivision (b)(3) of the ordinance requires the Auditor-Controller to regularly update
the report to “itemize the annual and cumulative costs that would or may result from adoption
or acceptance of each meet and confer proposal.” We presume this includes proposals made
by either the County or the unions. The ALJ noted the unions’ concerns that this requirement
would lead to delays in bargaining, but determined that the lawfulness of those delays would
be best addressed on a case-by-case basis through a surface bargaining analysis. The ALJ also
25

determined that there was no requirement that these on-going updated reports from the
Auditor-Controller be made public. OCAA excepts to these conclusions.
OCAA’s exceptions raise several concerns about how subdivision (b)(3) will operate in
practice. It argues that the provision can be read to require: (1) publication of the report; (2) a
cessation of bargaining after every proposal, to allow the Auditor-Controller’s report to be
updated and publicized; and (3) a particular level of specificity in the parties’ proposals, which
would prevent them from adopting an interest-based bargaining approach, which typically
generates less specific proposals. Although, as the County points out, the plain language of
subdivision (b)(3) does not require any of these actions, neither are OCAA’s concerns
unreasonable. The overall purpose of the ordinance supports OCAA’s reading of subdivision
(b)(3). For instance, the ordinance’s hortatory preamble refers at least four times to the need
for enhanced transparency in negotiations between employees and public agencies: it praises
the “transparency of th[e] methods of communication” used by employees and public agencies,
mentions the County’s duty as a public agency to its residents of “transparency in its decision-
making,” declares that information and knowledge is enhanced “by virtue of employees and
public agencies undertaking their duties and obligations pursuant to the Act [MMBA] in an
open and transparent manner,” and adopts the finding “that the communication between the
County and its employees required by the Act regarding changes in wages, hours and other
terms and conditions of employment would benefit from public scrutiny.”
The County asserts in response that nothing in subdivision (b)(3) requires the Auditor-
Controller’s updates to be publicly disclosed throughout the course of the negotiations. It
points to subdivision (d) concerning the adoption of the MOU, which provides in relevant part:
“Not less than seven (7) days prior to the first board meeting where the matter shall be heard,
26

the County shall post on its website the memorandum of understanding under consideration for
adoption, along with any final report and updates made by the Auditor-Controller pursuant to
subsection (b) herein.” According to the County, this section means that the Auditor-
Controller updates are not made public during negotiations. 	We are not persuaded by this
attempted post-hoc interpretation. Simply because the updates must be placed on the website
when the MOU is being considered for adoption, does not preclude those updates from being
disclosed throughout the process. One act is not mutually exclusive of the other.
The County further asserts that subdivision (b)(3) is an exercise of managerial
prerogative, one that it is entitled to implement “to gather all possible information and to make
the best decisions to ensure the County’s financial well-being.”
In light of this emphasis on public scrutiny and transparency, it is entirely foreseeable
that the County could interpret subdivision (b)(3) in the manner OCAA fears—to require a
public reporting of each updated report and a hiatus in negotiations until the report is made
public and/or until the public has commented on the report. However, we are still left with no
clear evidence of how the County will implement this particular rule.
The ambiguity of subdivision (b)(3) demonstrates why negotiations over its terms
might have solved this dilemma. It is well settled that the parties have a duty to utilize the
bargaining process to resolve any ambiguities in their bargaining proposals. (Bellflower
Unified School District (2014) PERB Decision No. 2385, p. 7; Rio Hondo Community College
District (2013) PERB Decision No. 2313, p. 5 [refusing demand to bargain without attempting
to clarify ambiguities and whether matters fall within scope of representation violates duty to
bargain in good faith]; Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375, p. 9 (Healdsburg).)
27

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An employer has a duty to “voice its reasons for believing that a proposal is outside scope, and
to enter into negotiations on those aspects of proposals which it finally views as [within
scope].” (Jefferson School District (1980) PERB Decision No. 133, p. 11 (Jefferson).)
Proscribed “is the perfunctory refusal to consider matters which are not patently negotiable
without affording the opportunity for clarification or explanation. The obligation to negotiate
includes the obligation to express one’s opposition in sufficient detail to permit the negotiating
process to proceed on the basis of mutual understanding.” (Ibid.)14
Depending on how the County implements subdivision (b)(3), it may be negotiable
because it would affect the bilateral process of negotiations over substantive terms by
potentially impeding the flow of negotiations, restricting the authority of the County’s
bargaining representatives, and preventing any agreement regarding confidentiality of the
bargaining process. On the other hand, if this provision is implemented as the County implies
it will be—as merely a directive to the Auditor-Controller similar to subdivision (b)(1), and not
to require publication of the updates or a hiatus in negotiations while the updates are
prepared—we would agree with the County that the provision is not negotiable for the same
reasons we conclude that subdivision (b)(1) is not negotiable. But by outright refusing the
unions’ demands to bargain over COIN, the County did exactly what Jefferson, supra, PERB
Decision No. 133, and its progeny prohibit—precluding the possibility of either party
clarifying or inquiring about the parameters of the negotiable aspects of the ordinance. As we
have said in Healdsburg, supra, PERB Decision No. 375 and County of Santa Clara, supra,
14 In Jefferson, supra, PERB Decision No. 133, as in this case, the Board was unable to
determine the precise limits of negotiability because the employer refused to discuss proposals
it declared to be outside the scope of representation. Nevertheless, the Board determined the
employer violated its duty to bargain in good faith by refusing to seek clarification.
28

PERB Decision No. 2321-M, such conduct is itself a refusal to bargain in good faith and the
employer acts at its own peril when it acts unilaterally.
Subdivision (c)
Subdivision (c) of the ordinance is titled “Civic Openness in the Meet and Confer
Process.” Subdivisions (c)(2) and (c)(3) require that after the Board of Supervisors meets in
closed session with its labor negotiators, the Board of Supervisors must report to the public all
offers, counteroffers, and supposals made by the parties during negotiations. Subdivision
(c)(6) further requires that the County disclose to both the Board of Supervisors and the public
all offers, counteroffers, and supposals made during negotiations, within 24 hours. The ALJ
determined that these provisions were negotiable because they prevent the parties from
agreeing to keep negotiations confidential.
As we noted above, parties sometimes propose a confidentiality arrangement, and other
times propose inviting observers to bargaining. (See, e.g., King City Joint Union High School
District, supra, PERB Decision No. 1777, adopting proposed decision, p. 5; San Ysidro School
District (1980) PERB Decision No. 134, pp. 7, 15; Muroc Unified School District, supra,
PERB Decision No. 80, p. 3.) Because one party cannot unilaterally insist on either of these
arrangements, the default is that observers are not permitted, but the parties are permitted to
report to the public or the press regarding what occurred in negotiations, absent an agreement
to the contrary. (See, e.g., Ross School District Board of Trustees (1978) PERB Decision
No. 48, adopting proposed decision, p. 9 (Ross); Petaluma, supra, PERB Decision No. 2485,
pp. 27-29 [negotiations are to occur solely between parties’ representatives, absent agreement
to the contrary; union cannot insist on negotiations being open to members who are not on the
bargaining team].) These two cases arose under EERA, which expressly exempts negotiations
29

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from the open meeting requirements of the Ralph M. Brown Act (Brown Act),15 an exemption
absent from the MMBA. However, their reasoning was also grounded in more general
principles, not just the express open-meeting exemption. In particular, Ross cited several
authorities from other jurisdictions noting the disruptive effect outsiders could have on
bargaining by inhibiting the give and take necessary for successful bargaining. (Ross, supra,
adopting proposed decision, pp. 7-8; see also Bartlett-Collins Co., supra, 237 NLRB 770.)16
While subdivision (c) of the COIN ordinance does not literally invite the public into
bargaining sessions, requiring disclosure of every proposal, counterproposal and supposal to
the public within 24 hours, has a very similar effect to the practices condemned in Ross, supra,
PERB Decision No. 48, and Petaluma, supra, PERB Decision No. 2485. Mandating that every
step of the negotiating process be made public invites the same potential disruption to
negotiations that having outside observers present during negotiations sessions, viz., inhibiting
the free flow of frank discussions, encouraging “grandstanding” for the benefit of perceived
interest groups, and stifling informal exploration of ideas that could lead to mutual agreement.
While nothing in our holding prevents a party from reporting to the public what occurs
in negotiations if there is no applicable confidentiality agreement, in this case the County
unilaterally tied its own hands before bargaining, thereby preventing the parties from ever
discussing confidentiality. Indeed, it is often the case that parties agree to a temporary media
blackout when negotiations get serious near their close, and the County permanently took that
15 The Brown Act is codified at section 54950 et seq.
16 The California Attorney General has also recognized the problems inherent in public
negotiations, opining that the Legislature did not intend to require local agencies subject to the
MMBA “to do their labor bargaining in a fish bowl.” (61 Ops.Cal.Atty.Gen. 1, 5-6, (1978).)
30

possibility off the table before bargaining even began. In other words, the County
preemptively refused to bargain over a mandatory topic.
Because the ordinance directly regulates the bargaining process by precluding the
parties from bargaining over or mutually agreeing to keep negotiations confidential, we agree
with the ALJ that subdivisions (c)(2), (c)(3), and (c)(6) are negotiable. (Richmond
Firefighters, supra, 51 Cal.4th 259, 272; Huntington Beach Police Officers’ Assn. v. City of
Huntington Beach (1976) 58 Cal.App.3d 492 [local agency cannot use rulemaking power to
remove a negotiable subject from the scope of representation].)
The County argues that this conclusion conflicts with the Brown Act. The Brown Act
generally requires a local agency’s governing body to conduct its business in an open, public
meeting. (Brown Act, § 54953.) But it provides an exception allowing that the governing
body “may” meet in closed session with its designated representatives “regarding the salaries,
salary schedules, or compensation paid in the form of fringe benefits . . . and . . . any other
matter within the statutorily provided scope of representation.” (Id., § 54957.6.)
Emphasizing the permissive nature of Brown Act section 54957.6, the County argues
that its Board of Supervisors “has the legislative authority to determine for itself whether to
meet with its labor negotiators in open session.” This may be true under the Brown Act. But
such authority does not mean confidentiality is outside the scope of representation. Where
external law touches upon matters within the scope of representation, those matters “remain
negotiable to the extent of the employer’s discretion, that is, to the extent that the external law
does not ‘set an inflexible standard or insure immutable provisions.’” (Fairfield-Suisun
Unified School District (2012) PERB Decision No. 2262, p. 13, quoting San Mateo City School
Dist. v. PERB (1983) 33 Cal.3d 850, 864-865.) Here, the Brown Act allows, but does not
31

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require, the Board of Supervisors to hold open sessions with its designated representatives.
Simply because the Brown Act gives the Board of Supervisors discretion, does not remove
confidentiality ground rules from the scope of representation.
The County also argues that the Board of Supervisors itself could serve as the County’s
negotiating team, in which case the Brown Act would require the negotiations to be held in
open session. We need not determine whether a confidentiality ground rule would be
negotiable in this scenario, because it is not contemplated by the COIN ordinance. Instead,
subdivision (a)(2) of the ordinance specifically requires that the Board of Supervisors appoint a
“principal negotiator,” who is not a County employee and who has demonstrated expertise in
negotiating labor agreements on behalf of public entities.17
The dissent argues that subdivision (c) does not prevent the parties from entering into a
confidentiality agreement because it does not prohibit, for instance, a mutual agreement not to
issue press releases or disclose “bargaining table conversations.” While the ordinance does
leave some interstitial space for narrow confidentiality agreements in certain respects, this does
not change the ordinance’s broad requirements to publicly disclose all offers, counteroffers,
and supposals—the essence of negotiations. In doing so, the ordinance substantially restricts
the flexibility of negotiations and reduces the range of ground rules that may be mutually
agreed upon.
Therefore, we conclude that subdivisions (c)(2), (c)(3), and (c)(6) are negotiable.
17 Should a local agency subject to the MMBA elect to serve as its own negotiating
team, the governing board would be unable to meet in closed session to discuss negotiations.
As the Attorney General has noted, this would give the employee organization a significant
advantage in being able to caucus in private. (Cf. 61 Ops.Cal.Atty.Gen., supra, at p. 5.)
32

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II. 	Violation of Section 3507
Because we have concluded that the County had no duty under MMBA section 3504 to
meet and confer over subdivision (b)(1), which requires the Auditor-Controller to prepare a
pre-negotiations report on the cost of current benefits and pay, we turn to OCAA’s argument
that this provision is within the scope of consultation under section 3507.18
Section 3507, subdivision (a) provides that “[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.” (Emphasis added.) The broad range of subjects that may be addressed in
these rules and regulations include:
(1) Verifying that an organization does in fact represent employees
of the public agency.
(2) Verifying the official status of employee organization officers
and representatives.
(3) Recognition of employee organizations.
(4) Exclusive recognition of employee organizations formally
recognized pursuant to a vote of the employees of the agency or an
appropriate unit thereof, subject to the right of an employee to
represent himself or herself as provided in Section 3502.
(5) Additional procedures for the resolution of disputes involving
wages, hours and other terms and conditions of employment.
(6) Access of employee organization officers and representatives to
work locations.
(7) Use of official bulletin boards and other means of
communication by employee organizations.
18 As noted, the ALJ concluded that OCAA’s argument met the unalleged violation test.
The County has not excepted to that conclusion, and it is not before us. (PERB Regulation
32300, subd. (c).)
33

(8) Furnishing nonconfidential information pertaining to
employment relations to employee organizations.
(9) Any other matters that are necessary to carry out the purposes
of this chapter.
(Ibid.) These “‘mandatory subjects’ for consultation” are distinct from the mandatory subjects of
bargaining under section 3504. (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 30.)
The ALJ rejected OCAA’s argument that any provision of the COIN that was not within
the scope of negotiations under MMBA section 3504 must also be considered under MMBA
section 3507. According to the ALJ, subdivision (a)(5) of section 3507 is limited to procedures
such as mediation, factfinding, or interest arbitration, while subdivision (a)(9) includes only rules
governing representation matters.
We disagree with this overly narrow reading of MMBA section 3507, subdivisions (a)(5)
and (a)(9). The meet-and-confer process is itself a procedure for resolving disputes regarding
wages, hours, and other terms and conditions of employment. This is reflected in the MMBA’s
primary purpose “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.” (MMBA, § 3500, subd. (a).) When the MMBA was enacted with this language,
meeting and conferring in good faith was the only dispute resolution process mandated.
Mediation was permitted but not required, and there were no provisions for factfinding or
interest arbitration. (Stats. 1968, ch. 1390, pp. 2725-2729.) Thus, rules that regulate the meet-
and-confer process would fall within the scope of section 3507, subdivisions (a)(5) and (a)(9),
assuming they are not within the scope of sections 3504 and 3505. (City of Palo Alto, supra,
PERB Decision No. 2388a-M, p. 30.) Such rules adopted pursuant to MMBA section 3507
34

would also be subject to review for reasonableness. (County of Monterey (2004) PERB Decision
No. 1663-M; City and County of San Francisco (2017) PERB Decision No. 2536-M.)
Nevertheless, subdivision (b)(1) does not constitute a “procedure for the resolution of
disputes involving wages, hours, and other terms and conditions of employment.” This provision
solely concerns how the County analyzes and reports the costs of current benefits and of ongoing
meet-and-confer proposals. This provision does not place any restrictions on recognized
employee organizations or on the interactions between the parties in the negotiating process.
Therefore, we deem it beyond the scope of MMBA section 3507, and the County was not
required to consult with OCAA in good faith before enacting it.
III. 	The Remedy
A. 	Severability
We next turn to OCAA’s exceptions concerning whether the negotiable provisions of the
COIN ordinance are severable from those that are non-negotiable. We conclude they are.
OCAA argues that the ordinance’s severability clause does not contemplate severability
in the event of invalidation by an administrative agency such as PERB, but only by a “court of
competent jurisdiction.” (Subd. (f).) Although PERB is not a court, it is the quasi-judicial
agency with exclusive initial jurisdiction over the MMBA. There is no reason to believe the
County’s Board of Supervisors intended that a court could sever any invalid provisions of the
ordinance, but that an administrative agency must invalidate the whole thing. Moreover, invalid
legislative provisions may be found severable even in the absence of a severability clause.
(County of Sonoma v. Super. Ct. (2009) 173 Cal.App.4th 322, 352.) Therefore, we reject the
argument that we may not find portions of the ordinance severable.
35

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To be severable, “the invalid provision must be grammatically, functionally, and
volitionally separable.” (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821
(Calfarm).) The first requirement, grammatical severability, means that the invalid provision
may be removed without affecting the wording of the remaining provisions. (Id. at p. 822.)
This requirement is met here. Subdivisions (b)(2), (b)(3), (c)(2), (c)(3), and (c)(6) are distinct
provisions. Their removal does not alter the wording of any remaining provisions.
The requirement of functional severability means that the remaining provisions can
operate without the excised ones. (Calfarm, supra, 48 Cal.3d 805, 822.) This requirement is
also met. Subdivisions (b)(2), (b)(3), (c)(2), (c)(3), and (c)(6) concern the non-negotiations
period, the Auditor-Controller’s ongoing updates to the cost report, and the County
negotiator’s obligation to report proposals, counter-proposals, and supposals to the public and
to the Board of Supervisors.19 The remainder of the ordinance, including its provisions for an
initial cost report, an outside principal negotiator, and approval of a tentative agreement after
two public meetings, are not affected by the removal of the negotiable provisions.
The final requirement, volitional severability, is also met. This means the remaining
provisions “would likely have been adopted” had the legislative body foreseen the partial
invalidity of the enactment. (Calfarm, supra, 48 Cal.3d 805, 822; see also Santa Barbara
School Dist. v. Super. Ct. (1975) 13 Cal.3d 315, 331.) OCAA argues that the removal of the
19 Subdivision (c)(3) requires the disclosure of more than just offers, counteroffers, and
supposals, but also “a list of names of all persons in attendance during the negotiation sessions,
the date of the sessions, the length of the sessions, the location where the sessions took place
and any pertinent facts regarding the negotiations that occurred in a particular session.” The
ALJ did not determine, and the unions do not argue, that disclosure of these other facts is
negotiable. However, the ALJ’s remedy addressed the entirety of the subdivision (c)(3). The
County, while excepting to the conclusion that it was negotiable, does not argue that only
certain portions of this provision should be severed. The County has thus waived that issue
(PERB Reg. 32300, subd. (c)), so we do not consider it.
36

invalid portions undermines the fundamental purpose of the ordinance so substantially that the
Board of Supervisors would not have adopted the remainder, but we disagree. The purpose of
increasing public transparency is served by the disclosure of the Auditor-Controller’s initial
report, reflecting the current costs as well as the costs of possible opening proposals by the
County. That purpose is also served by the requirement of two public meetings before the
adoption of a tentative agreement by the Board of Supervisors. Other provisions of the
ordinance serve purposes not directly related to transparency, including the use of an outside
negotiator, which is claimed to reduce the potential for conflicts of interest.
OCAA argues that the County did not need to enact an ordinance to implement these
remaining provisions. Presumably, OCAA means that the County could have enacted these
policies by resolution instead. That may be true, but we are not concerned with the form of the
County’s legislative action, but with whether it took those actions in accordance with the process
required by the MMBA.
Therefore, we conclude that subdivisions (b)(2), (b)(3), (c)(2), (c)(3), and (c)(6) are
severable from the remainder of the ordinance.
B. 	Scope of the Remedy
The ALJ ordered the County to rescind the various provisions of the COIN ordinance he
determined were within the scope of representation. We amend this portion of the remedy to
declare void and unenforceable those portions of the COIN ordinance which we have
concluded are unlawful.
At the time he issued the proposed decision, the ALJ did not have the benefit of our
decision in City of San Luis Obispo (2016) PERB Order No. Ad-444-M, concerning the scope
of the remedy in a unilateral change case such as this one. We explained that:
37

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When an employer’s conduct is alleged to constitute a unilateral
change or other bargaining violation simultaneously affecting
more than one bargaining unit, the exclusive representative of
each unit must file a charge and litigate on behalf of the
employees in its respective unit. [Citations.] In such
circumstances, the Board’s usual practice is to limit the remedy to
only the unit or units where the designated representative has
successfully litigated the case. [Citations.] This approach is
necessary to protect the rights of the respondent to notice of the
allegations against it and to protect the rights of other employee
organizations who, for whatever reason, may prefer to acquiesce
to an employer’s conduct rather than file and litigate unfair
practice charges.
(Id. at p. 6.)
The County’s unilateral change in this case primarily affects the rights of the exclusive
representatives of County employees to meet and confer in good faith. (MMBA, §§ 3505,
3506.5, subd. (c).) We are aware of at least three exclusive representatives of County
bargaining units that are not parties to these consolidated cases.20 Although there may be
grounds for those exclusive representatives to challenge the COIN ordinance in the future,21 by
20 The record in this case mentions the Orange County Managers Association, which
represents the Administrative Management Unit. In addition, exceptions are pending
concerning proposed decisions in two cases involving other County bargaining units,
represented by the American Federation of State, County & Municipal Employees, Local 2076,
and the Association of Orange County Deputy Sheriffs, respectively. (See El Monte Union
High School District (1980) PERB Decision No. 142 [the Board may take administrative
notice of its own files].)
21 For instance, the ALJ questioned whether it would be lawful for the County, even
after bargaining to impasse, to enact an ordinance and “cement a ground rule in perpetuity
rather than allow the parties to negotiate ground rules during the beginning of each successor
MOU negotiations.” The ALJ also observed that, despite his conclusion that the County was
not required by section 3507 to consult in good faith before enacting the COIN ordinance,
the County would not be allowed pursuant to MMBA section
3507 to set parameters as to the bargaining process which
conflicted with other sections of the MMBA, such as the
obligation to bargain in good faith under MMBA section 3505 as
38

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this decision we conclude only that the County violated the MMBA by failing to give OCAA,
OCEA, and Local 501 the opportunity to meet and confer over the negotiable provisions of the
ordinance. Therefore, we confine our remedy to declaring those provisions void and
unenforceable as to OCEA, OCAA, and Local 501. As our remedy affects only OCEA,
OCAA, and Local 501, we order that the electronic distribution of the notice to employees be
confined to the employees represented by those employee organizations and deny OCAA’s
request for a broader posting order directed at all County employees.
the disputed local rule or its application would be inconsistent
and contrary to the express provisions of the MMBA.
(International Brotherhood of Electrical Workers, Local 1245 v.
City of Gridley (1983) 34 Cal.3d 191; [Huntington Beach Police
Officers’ Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d
492]; City of San Rafael (2004) PERB Decision No. 1698-M;
County of Monterey (2004) PERB Decision No. 1663-M.)
Because the parties have not addressed these or any other theories in this case, we express no
opinion on how they would apply to the provisions of the COIN ordinance.
ORDER
Upon the foregoing findings of fact, conclusions of law, and the entire record in this
case, it has been found that the County of Orange (County) violated the Meyers-Milias-Brown
Act (MMBA), Government Code sections 3505 and 3506.5, subdivision (c), and PERB
Regulation 32603, subdivision (c), by adopting subdivisions (b)(2), (b)(3), (c)(2), (c)(3), and
(c)(6) of the Civic Openness in Negotiations (COIN) ordinance, without affording the Orange
County Employees Association (OCEA), the Orange County Attorneys Association (OCAA)
and the International Union of Operating Engineers Local 501 (Local 501), an opportunity to
meet and confer over the decision or effects of the proposed ordinance. By this conduct, the
County also interfered with the right of unit employees to participate in the activities of OCEA,
39

OCAA, and Local 501, in violation of Government Code sections 3506 and 3506.5,
subdivision (a), and PERB Regulation 32603, subdivision (a), and denied OCEA, OCAA, and
Local 501 the right to represent employees in their employment relations with a public agency
in violation of Government Code sections 3503 and 3506.5, subdivision (b), and PERB
Regulation 32603, subdivision (b).
Pursuant to section 3509, subdivision (a), of the Government Code, it is hereby
ORDERED that subdivisions (b)(2), (b)(3), (c)(2), (c)(3), and (c)(6) of the COIN ordinance are
void and unenforceable in the County’s negotiations with OCEA, OCAA, and Local 501, and
that the County, its governing board, and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Enforcing subdivisions (b)(2), (b)(3), (c)(2), (c)(3), and (c)(6) of the
COIN ordinance.
2. 	Implementing an unlawful unilateral change and refusing to meet and
confer with OCEA, OCAA, and Local 501 prior to adopting a proposed ordinance concerning
matters within the scope of representation.
3. 	Interfering with the right of bargaining unit employees to be represented
by OCEA, OCAA, and Local 501.
4. 	Denying OCEA, OCAA, and Local 501 their right to represent
employees in their employment relations with the County.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays after this decision is no longer subject to
appeal, post at all work locations in the County, where notices to employees customarily are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
40

authorized agent of the County, indicating that the County will comply with the terms of this
Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays. In
addition to physical posting of paper notices, the Notice shall be posted by electronic message,
intranet, internet site, and other electronic means customarily used by the County to
communicate with its employees in the bargaining units represented by OCEA, OCAA, and
Local 501. (City of Sacramento, supra, PERB Decision No. 2351-M.) Reasonable steps shall
be taken to ensure that this Notice is not reduced in size, altered, defaced or covered with any
other material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board or the General
Counsel’s designee. The County shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be served
concurrently on OCEA, OCAA and Local 501.
Members Banks and Krantz joined in this Decision.
Member Shiners’ concurrence and dissent begins on p. 42.
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SHINERS, Member, concurring and dissenting: I agree with my colleagues that
Section 1-3-21, subdivision (b)(1), of the County of Orange’s Civic Openness in Negotiations
(COIN) ordinance is not within the scope of representation under section 3504 of the Meyers-
Milias-Brown Act (MMBA),22 and not subject to the consultation requirement in MMBA
section 3507. I respectfully but strongly dissent, however, from the majority’s conclusions that
subdivisions (b)(2), (c)(2), (c)(3), and (c)(6) of the COIN ordinance are within the scope of
representation, and that the County violated its duty to meet and confer in good faith by not
bargaining with Charging Parties over those subdivisions, as well as subdivision (b)(3), before
adopting the ordinance.23 As explained below, I would find all of the COIN ordinance
provisions at issue to be outside the scope of representation, and accordingly would dismiss the
complaints in these consolidated cases.
1. 	Ground Rules and the Scope of Representation
The scope of representation under the MMBA includes “all matters relating to
employment conditions and employer-employee relations, including, but not limited to, wages,
hours, and other terms and conditions of employment.” (MMBA, § 3504.) The majority
admits that the provisions of the COIN ordinance at issue do not involve “wages, hours, or
other terms and conditions of employment.” (Maj. Opn. p. 7.) Nevertheless, the majority finds
subdivisions (b)(2), (c)(2), (c)(3), and (c)(6) to be within the scope of representation as ground
rules for negotiations. The majority is wrong for two reasons.
22 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
specified, all statutory references are to the Government Code.
23 All undifferentiated references to a subdivision hereafter refer to the COIN
ordinance, section 1-3-21.
42

First, these subdivisions are not ground rules. Ground rules typically cover such topics
as “the time and place for bargaining to start, the order of issues to be discussed, the final
settlement conditions that may be imposed, questions of ratification and approval of [agency]
officials, and a variety of similar procedural matters.” (Anaheim Union High School District
(1981) PERB Decision No. 177, p. 9 (Anaheim).) Similarly, subdivision (a)(3) of the COIN
ordinance itself defines ground rules as “preliminary procedural matters governing the conduct
of negotiations including, but not limited to, the time and place for bargaining, the order of
issues to be discussed, the signing of tentative agreements, the requirement of package
bargaining, or the use of supposals.” The COIN provisions at issue are not akin to the
“procedural matters” described above because they do not govern how negotiations will
proceed.
Subdivision (b)(2) requires that a financial report be available for review at least 30
days before the Board of Supervisors considers its opening bargaining proposal. This
requirement applies only to the County before negotiations commence; it does not govern the
parties once negotiations begin and therefore is not a ground rule.
Subdivisions (c)(2), (c)(3), and (c)(6) require public disclosure of proposals made in
bargaining and certain facts about each bargaining session, such as location, attendees, etc.,
within a certain time after each negotiating session. Although these provisions obviously
apply during negotiations, they do not determine the procedure by which negotiations will take
place. Instead, they merely require the County’s negotiator to provide the Board of
Supervisors and the public with objective data about negotiations. These after-the-fact reports
are not ground rules governing how the parties’ negotiations must proceed.
43

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Second, the authority the majority relies upon to find subdivisions (b)(2), (c)(2), (c)(3),
and (c)(6) to be within the scope of representation is based on long-overruled law and is out of
step with every other jurisdiction. The majority cites Stockton Unified School District (1980)
PERB Decision No. 143 (Stockton) and Anaheim, supra, PERB Decision No. 177 for the
proposition that ground rules are within the scope of representation. (Maj. Opn. pp. 8-9.) Both
decisions cited to National Labor Relations Board (NLRB) precedent in support of this
proposition: Stockton to General Electric Co. (1968) 173 NLRB 253, and Anaheim to St.
Louis Typographical, Local 8 (Graphic Arts Ass’n) (1964) 149 NLRB 750. But in Bartlett-
Collins Co. (1978) 237 NLRB 770, the NLRB overruled those two decisions and held that
“threshold matter[s], preliminary and subordinate to substantive negotiations,” i.e., ground
rules, are outside the scope of representation. (Id. at pp. 772-773; see Latrobe Steel Co. v.
NLRB (3d Cir. 1980) 630 F.2d 171, 176 (Latrobe Steel Co.) [acknowledging and approving
NLRB’s overruling of General Electric and St. Louis Typographical].)
The doctrinal foundation for the rule that ground rules are a mandatory subject of
bargaining was demolished 40 years ago—two and three years, respectively, before Stockton
and Anaheim relied on these overruled NLRB decisions without explaining why it was
appropriate for PERB to adopt this rejected rule.24 I cannot support the majority’s imposition
of a duty to bargain over ground rules based on long-overruled precedent.
24 Additionally, Anaheim relied on a second NLRB decision, Borg-Warner Controls, A
Division of Borg-Warner Corporation (1972) 198 NLRB 726 (Borg-Warner), to support the
rule that ground rules are a mandatory subject. That case, however, involved a surface
bargaining allegation, not an allegation that the employer refused to bargain over ground rules.
Specifically, the employer refused to mutually arrange meeting times and locations, which
would be an indicator of surface bargaining under PERB precedent. (E.g., Oakland Unified
School District (1983) PERB Decision No. 326, pp. 33-34.) Borg-Warner thus does not
support imposing a statutory obligation to bargain over ground rules.
44

Instead, I find persuasive the NLRB’s reasons for deeming ground rules to be outside
the scope of representation. The NLRB’s reasoning for changing the law 40 years ago was
based, in part, on the fact that ground rules do not affect “wages, hours, and other terms and
conditions of employment.” (Bartlett-Collins Co., supra, 237 NLRB at p. 772.) But perhaps
more importantly, the NLRB recognized that if ground rules were a mandatory subject, either
party could insist to impasse on them, thereby “stifl[ing] negotiations in their inception over
such a threshold issue.” (Id. at p. 773.) In upholding the Bartlett-Collins rule, one court of
appeal noted: “It would be contrary to the policy of the Act, which mandates negotiation over
the substantive provisions of the employer-employee relationship, to permit negotiations to
break down over [the] preliminary procedural issue.” (Latrobe Steel Co., supra, 630 F.2d at
p. 177.)
Today, a majority of jurisdictions deem ground rules to be outside the scope of
representation. (E.g., Local 342-50, United Food and Commercial Workers Union (Pathmark
Stores, Inc.) (2003) 339 NLRB 148, 155; Lincoln County, 2018 WL 4292910, p. 5
[Washington Public Employment Relations Commission]; University of Illinois, Chicago
(2018) 34 PERI ¶ 173 [Illinois Educational Labor Relations Board]; Washington County
Consolidated Communications Agency, 2014 WL 3339216, p. 8 [Oregon Employees Relations
Board]; County of Kane (1988) 4 PERI ¶ 2031 [Illinois State Labor Relations Board]; City of
Deerfield Beach (1981) 7 FPER ¶ 12438 [Florida Public Employees Relations Commission];
Town of Shelter Island (1979) 12 PERB ¶ 3112 [New York Public Employment Relations
Board].) A small number of jurisdictions hold that ground rules are presumptively within the
scope of representation but the presumption may be rebutted by showing the proposed ground
rule would impede the bargaining process. (U.S. Food & Drug Administration (1998) 53
45

________________________
FLRA 1269, 1291-1292 [Federal Labor Relations Authority]; University of the District of
Columbia, 1992 WL 12601368, p. 2, fn. 3 [District of Columbia Public Employee Relations
Board].) California thus is the only jurisdiction with a categorical rule that ground rules are a
mandatory subject of bargaining. I see no compelling reason for PERB to remain out of step
with other jurisdictions on this issue. Consequently, the categorical rule should be abandoned.
The majority devotes many pages to criticizing the above legal authority but ultimately
decides to retain the categorical rule for policy reasons.25 I agree that it is beneficial for parties
to discuss and try to reach mutual agreement on ground rules. Unlike my colleagues, I do not
believe this policy is best served by deeming ground rules a mandatory subject of bargaining.
Rather—as every other federal and state labor board that has addressed the issue in a reported
decision has done—I would hold that ground rules are outside the scope of representation.26
Of course, a party’s refusal or failure to discuss ground rules could still be evidence of bad
faith bargaining. (Oakland Unified School District, supra, PERB Decision No. 326, pp. 33-
34.) Thus, if a party’s intransigence over ground rules impedes negotiations, the other party
still would have a remedy under our extant decisional law.
25 The majority dismisses my concern that deeming ground rules a mandatory subject of
bargaining may allow a party to torpedo negotiations before they start. First, this concern is
consistently expressed in the labor board and court of appeal decisions cited above as a reason
for deeming ground rules to be outside the scope of representation. Second, there is no
evidence before us showing that PERB’s categorical rule has in fact prevented negotiations
from breaking down over ground rule disagreements, as the majority claims. It is equally
possible that parties do not find ground rules a significant enough issue to let disagreement
over them stall negotiations, or that they choose not to use them at all.
26 Contrary to the majority’s characterization, such a holding would not be “follow[ing]
every turn of the private sector case law.” (Maj. Opn. p. 8) The NLRB adopted this rule forty
years ago and it has withstood the frequently oscillating currents of that board’s decisional law
to this day.
46

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In sum, I do not find the COIN ordinance provisions at issue to be ground rules. I also
would overrule Stockton and Anaheim, and adopt the Bartlett-Collins rule that ground rules are
outside the scope of representation—as most other jurisdictions have done. Either way, I
would find the disputed provisions of the COIN ordinance to be outside the scope of
representation and thus would conclude that the County had no obligation to meet and confer
with Charging Parties before adopting them.
2. 	Application of the Claremont Test
I agree with the majority’s harmonization of the California Supreme Court’s decisions
in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623 (Claremont),
and International Assn. of Fire Fighters, Local 188, AFL-CIO v. PERB (2011) 51 Cal.4th 259
(Richmond Firefighters). I disagree, however, with the majority’s conclusion that Claremont
does not apply in this case.27
In Richmond Firefighters, the Court identified three categories of managerial decisions:
(1) “decisions that ‘have only an indirect and attenuated impact on the employment
relationship’ and thus are not mandatory subjects of bargaining,” such as advertising, product
design, and financing; (2) “decisions directly defining the employment relationship, such as
wages, workplace rules, and the order of succession of layoffs and recalls,” which are “always
27 Unlike my colleagues, I see no need to disavow any part of City of Alhambra (2010)
PERB Decision No. 2139-M (Alhambra). In Alhambra, the Board held that a particular change
in minimum qualifications was not within the scope of representation. At that time, neither
PERB nor the courts had held minimum qualifications to be a mandatory subject of bargaining,
nor are they obviously so. The Board thus had to apply the Claremont test to determine
whether the city had an obligation to meet and confer over the change at issue. To the extent
my colleagues fault Alhambra for failing to mention the other two categories of managerial
decisions enumerated in Richmond Firefighters, that omission was immaterial to the Board’s
decision. Accordingly, I do not find Alhambra incompatible with the majority’s clarification
of the test for mandatory bargaining subjects under the MMBA.
47

mandatory subjects of bargaining”; and (3) “decisions that directly affect employment, such as
eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because they
involve ‘a change in the scope and direction of the enterprise’ or, in other words, the
employer’s ‘retained freedom to manage its affairs unrelated to employment.’” (Richmond
Firefighters, supra, 51 Cal.4th at pp. 272-273.) The majority finds ground rules to be in the
second category of decisions that are always within the scope of representation. But that
category consists of “decisions directly defining the employment relationship.” As indicated
by the examples the Court cited, i.e., “wages, workplace rules, and the order of succession of
layoffs and recalls,” the “employment relationship” is between employees and their employer,
not between the union and the employer. (Id. at p. 272.) Thus, ground rules do not fall within
the second category.
Instead, ground rules fall into the third category—decisions that may be negotiable
under certain circumstances—which requires application of the Claremont test. Under that
test, a management action is negotiable when (1) it has “a significant and adverse effect on the
wages, hours, or working conditions of the bargaining-unit employees”; (2) that effect does not
“arise[] from the implementation of a fundamental managerial or policy decision”; and (3) “the
employer’s need for unencumbered decisionmaking in managing its operations is outweighed
by the benefit to employer-employee relations of bargaining about the action in question.”
(Claremont, supra, 39 Cal.4th at p. 638.) The provisions of the COIN ordinance at issue here
fail to meet the first prong because they do not affect wages, hours, or working conditions in
any way, much less in a significant or adverse way. Thus, the challenged provisions are not
within the scope of representation.
48

3. 	Effect of Disputed Provisions on the Bargaining Process
The majority concludes that subdivisions (b)(2), (c)(2), (c)(3), and (c)(6) are within the
scope of representation because they either “directly regulate the bargaining relationship” or
“have a direct impact on the negotiating process.” The majority’s erroneous conclusion that
these subdivisions are ground rules which “directly regulate the bargaining relationship” was
addressed in section 1 above. Before addressing why these subdivisions do not directly impact
the negotiating process, I must point out that the majority offers no direct legal authority for its
statement that proposals which “have a direct impact on the negotiating process” are within the
scope of representation. In support of this proposition, the majority cites only Richmond
Firefighters. (Maj. Opn. p. 21.) But that decision categorizes subjects of negotiations based
on their impact on the “employment relationship” (Richmond Firefighters, supra, 51 Cal.4th at
pp. 272-273)—which necessarily is between employees and their employer, not between the
union and the employer. Thus, Richmond Firefighters provides no support for the majority’s
new rule. Furthermore, jurisdictions that deem ground rules to be presumptively within the
scope of representation allow the presumption to be rebutted by a showing that the proposed
ground rule would impede the bargaining process. (U.S. Food & Drug Administration, supra,
53 FLRA at pp. 1291-1292; University of the District of Columbia, 1992 WL 12601368, p. 2,
fn. 3.) The majority’s rule is just the opposite: a proposal is within scope if it would impede
negotiations. Because it lacks any foundation in existing precedent, I cannot accept the
majority’s proffered rule.
I also disagree with the conclusions the majority reaches by applying its newly-created
rule to the COIN ordinance provisions in dispute. The majority finds that subdivision (b)(2) is
49

within scope because it creates a 30-day “non-negotiations period” before bargaining can
begin. (Maj. Opn. pp. 24-25.) Subdivision (b)(2) states:
The [County Auditor-Controller’s] report shall be completed and
made available for review by the Board of Supervisors and the
public at least thirty (30) calendar days before consideration by
the Board of Supervisors of an opening proposal to be presented
to any recognized employee organization regarding negotiation of
an amended, extended, successor, or original memorandum of
understanding.
Nothing in this language says that during the 30-day period the parties cannot engage in
aspects of the negotiation process such as discussing ground rules, propounding and
responding to information requests, or even meeting and conferring over union proposals. In
contrast, many of the statutes under PERB’s jurisdiction clearly preclude negotiations for a
certain period of time after the parties’ initial proposals have been made public. (E.g., Gov.
Code, §§ 3523, subd. (b) [Dills Act; “not less than seven consecutive days”]; 3547, subd. (b)
[EERA; “a reasonable time”]; 3595, subd. (b) [HEERA; “a reasonable time”]; Pub. Util. Code,
§ 99569, subd. (b) [TEERA; “a reasonable time”].) There is no such prohibitory language in
subdivision (b)(2). Moreover, the record before us does not contain facts showing the County
intended subdivision (b)(2) to preclude all negotiation activity during the 30-day period or has
applied the subdivision in such a manner. Absent clear language or extrinsic evidence showing
that subdivision (b)(2) would in fact prohibit any negotiating activity for 30 days, the
majority’s conclusion is based on mere speculation.
Additionally, under the statutes that provide a “reasonable time” for public
consideration of initial proposals before negotiations begin, PERB has found anywhere from
eight days to three weeks to be reasonable. (E.g., Los Angeles Unified School District (1993)
PERB Decision No. 1000, pp. 12-13 [eight days]; Los Angeles Unified School District (1990)
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PERB Decision No. 852, p. 4 [two weeks]; Los Angeles Unified School District (1994) PERB
Decision No. 1044, p. 6 [three weeks].) It is difficult to see how allowing the public 30 days to
review the County Auditor-Controller’s report before the County makes its initial proposal
crosses the line into unreasonableness. Thus, even if subdivision (b)(2) does prohibit
negotiations for 30 days, that in itself is insufficient to show a significantly adverse impact on
negotiations to bring the subdivision within the scope of representation under the majority’s
newly-minted rule.
Turning to the disclosure provisions, subdivisions (c)(2) and (c)(3) require the Board of
Supervisors to report during an open public meeting all offers, counteroffers, and supposals
which were communicated to the Board during the closed session portion of that same
meeting. The report also must include the names of persons who attended the negotiations, the
location of negotiations, “and any pertinent facts regarding the negotiations [sessions].”
Subdivision (c)(6) further requires that all offers, counteroffers, and supposals made during
negotiations shall be disclosed to the Board and the public within 24 hours of being presented
at the bargaining table.
The majority finds these provisions negotiable on the ground that they prevent the
parties from entering into a confidentiality agreement as part of their ground rules. (Maj. Opn.
p. 31.) This conclusion is based on an overly broad reading of subdivisions (c)(2), (c)(3), and
(c)(6). These subdivisions require public disclosure only of (1) proposals, counterproposals
and supposals, (2) who attended a bargaining session, and (3) where the session took place.
Disclosure of what was said during negotiations is not required, and the parties therefore could
mutually agree not to publicly disclose bargaining table conversations. Similarly, nothing in
subdivisions (c)(2), (c)(3), or (c)(6) precludes the parties from agreeing not to issue press
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releases or otherwise publicly comment upon ongoing negotiations. (See, e.g., Muroc Unified
School District (1978) PERB Decision No. 80, p. 3 [parties agreed not to issue press releases
during negotiations].) Thus, although these subdivisions require public disclosure of proposals
themselves and certain factual details about each bargaining session, the parties still would be
free to mutually agree to prohibit or limit public disclosure of all other aspects of negotiations.
Subdivisions (c)(2), (c)(3), and (c)(6) therefore do not, as the majority claims, prevent the
parties from entering into a confidentiality agreement.
The majority also characterizes the disclosure provisions as akin to conducting
negotiations in public (Maj. Opn. p. 30), but this comparison is inapt. As the majority notes,
the presence of outside observers during negotiation sessions potentially inhibits the free
exchange of ideas that could lead to mutual agreement, as negotiators may feel obligated to
conform their statements to the observers’ expectations or desires. But requiring public
disclosure of the parties’ proposals does not make the public privy to the give and take of
bargaining table discussions; it merely allows the public to see what has already been
proposed. The parties remain free to confidentially discuss the proposals and explore possible
areas for compromise and agreement away from the public eye. Subdivisions (c)(2), (c)(3),
and (c)(6) consequently do not open the County’s labor negotiations to the public. As a result,
the authority the majority cites to strike down the disclosure provisions is inapposite.28
28 This authority also does not support the majority’s conclusion that the COIN
ordinance’s disclosure provisions are a mandatory subject of bargaining. In Ross School
District Board of Trustees (1978) PERB Decision No. 48, the Board held that the district
unlawfully insisted to impasse on labor negotiations being conducted in public, a permissive
subject of bargaining because under the EERA public negotiations may only be conducted by
mutual agreement. (Id., adopting proposed decision, pp. 6-9.) In Petaluma City Elementary
School District/Joint Union High School District (2016) PERB Decision No. 2485, the Board
declined to decide whether the presence of employee observers at negotiations is within the
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scope of representation. (Id. at p. 34.) Neither decision found a proposal to conduct public
negotiations—to which the majority likens the disclosure provisions—to be within the scope of
representation.
In sum, neither the COIN ordinance’s 30-day initial report review provision
(subdivision (b)(2)), nor its disclosure provisions (subdivisions (c)(2), (c)(3), and (c)(6)), “have
a direct impact on the negotiating process.” None of these provisions necessarily delays
negotiations nor poses an impediment to full and frank discussion between the parties of their
bargaining positions and potential compromises. Nothing in the record supports the majority’s
speculation that these provisions will prevent the County from engaging in meaningful
negotiations with its employee organizations. Of course, if problems arise from application of
these provisions in the future, PERB can address those problems on the basis of the record
before it at that time. But I cannot find that on their face subdivisions (b)(2), (c)(2), (c)(3), and
(c)(6) have a direct impact on negotiations such that they would fall within the scope of
representation under the majority’s newly-minted legal standard.
4. 	Failure to Bargain over Subdivision (b)(3)
Finally, the majority concludes that the County violated its duty to meet and confer
with Charging Parties over subdivision (b)(3), which requires the County Auditor-Controller to
prepare updated financial reports as the parties make proposals in negotiations. The majority
admits that it cannot determine whether subdivision (b)(3) is within scope, but nonetheless
imposes liability on the County under the theory that it had a duty to meet and confer with
Charging Parties over whether the provision is within the scope of representation. (Maj. Opn.
pp. 28-29.)
Again, the majority’s conclusion is not supported by the authority upon which it relies.
The majority primarily relies on Jefferson School District (1980) PERB Decision No. 133 and
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Healdsburg Union High School District and Healdsburg Union School District/San Mateo City
School District (1984) PERB Decision No. 375 (Healdsburg/San Mateo), where the Board
held that an employer has a duty to meet with an employee organization to clarify the terms of
an ambiguous union proposal to determine whether the proposal concerns a subject within the
scope of representation; the employer cannot perfunctorily declare the proposal outside scope
and refuse to bargain over it. (Jefferson School District, supra, PERB Decision No. 133, p. 11;
Healdsburg /San Mateo, supra, PERB Decision No. 375, pp. 9-10.) The majority also relies
on County of Santa Clara (2013) PERB Decision No. 2321-M and Bellflower Unified School
District (2014) PERB Decision No. 2385, in which the Board held that an employer has a duty
to meet with an employee organization to clarify whether the union’s demand to bargain the
effects of a non-negotiable management decision encompasses any effects within the scope of
representation. (County of Santa Clara, supra, PERB Decision No. 2321-M, pp. 31-32;
Bellflower Unified School District, supra, PERB Decision No. 2385, p. 7.)
These decisions address the employer’s obligation to seek clarification of a union
proposal or demand that may or may not encompass subjects within the scope of
representation. No decision says that when an employer takes an action it believes to be
outside the scope of representation, it must meet and confer with employee organizations over
whether the action is in fact a mandatory bargaining subject. But that is the rule the majority
adopts today.
The majority’s new rule creates two big problems. First, it allows employee
organizations to demand bargaining over non-negotiable management decisions in the guise of
“clarifying” whether the decision is within the scope of representation. This necessarily
undermines the employer’s right to make the non-negotiable decision.
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Second, the majority’s new rule absolves charging parties of their burden of proof in
unilateral change cases like this one. In a unilateral change case, the charging party bears the
burden of proving that the challenged employer action concerned a subject within the scope of
representation. (County of Santa Clara, supra, PERB Decision No. 2321-M, p. 13; PERB
Reg. 32178.)29 If PERB is unable to determine from the record whether the employer’s action
was within the scope of representation, the charging party has not met its burden and the
allegation must be dismissed. Here, as the majority admits, the record does not prove that
subdivision (b)(3) is within the scope of representation. Yet the majority nonetheless finds a
unilateral change violation. Unlike the majority, I would follow—not upend—PERB
Regulation 32178 and dismiss the unilateral change allegation as to subdivision (b)(3) because
Charging Parties failed to prove that provision is within the scope of representation.
5. 	Conclusion
The majority’s imposition of a bargaining obligation over the challenged provisions of
the COIN ordinance (with the exception of subdivision (b)(1)) rests on a shaky legal
foundation. The majority’s perpetuation of a categorical rule that ground rules are within the
scope of representation—the initial adoption of which was based upon previously invalidated
federal precedent—is out of step with every other jurisdiction in the country. Similarly, there
is no legal basis for the majority’s determination that the challenged provisions are not subject
to the Claremont test, nor for its decision to make employer actions that “have a direct impact
on the negotiating process” subject to mandatory negotiations. And the majority provides no
29 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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reason for creating a new bargaining obligation over non-negotiable decisions instead of
enforcing the burden of proof set out in PERB’s Regulations.
Ultimately, however, the majority’s legal sleight of hand does not produce a rabbit
because, as explained above, the challenged provisions are neither ground rules nor do they
impede labor negotiations. Rather, these provisions merely allow the taxpayers who will
shoulder the cost of any County labor contract to obtain sufficient information to understand
the potential financial ramifications of what their elected representatives may agree to in
negotiations. Accordingly, I would dismiss the consolidated complaints because none of the
challenged provisions of the COIN ordinance are within the scope of representation.
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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 Nos. LA-CE-934-M, LA-CE-935-M, and
LA-CE-944-M, Orange County Employees Association, et al. v. County of Orange, in which
all parties had the right to participate, it has been found that the County of Orange (County)
violated the Meyers-Milias-Brown Act (MMBA), Government Code sections 3503, 3505,
3506, and 3506.5, subdivisions (a), (b), and (c), and PERB Regulation 32603, subdivisions (a),
(b), and (c), by adopting subdivisions (b)(2), (b)(3), (c)(2), (c)(3), and (c)(6) of the Civic
Openness in Negotiations ordinance (COIN), without prior notice to the Orange County
Employees Association (OCEA), the Orange County Attorneys Association (OCAA) and the
International Union of Operating Engineers, Local 501 (Local 501), and affording them an
opportunity to meet and confer over the decision or effects of the proposed ordinance.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
1. 	Enforcing subdivisions (b)(2), (b)(3), (c)(2), (c)(3), and (c)(6)of the
COIN ordinance.
2. 	Implementing an unlawful unilateral change and refusing to meet and
confer with OCEA, OCAA, and Local 501 prior to adopting a proposed ordinance concerning
matters within the scope of representation.
3. 	Interfering with the right of bargaining unit employees to be represented
by OCEA, OCAA, and Local 501.
4. 	Denying OCEA, OCAA, and Local 501 their right to represent
employees in their employment relations with the County.
Dated: _____________________ 	COUNTY OF ORANGE
_________________________________	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.