County of San Joaquin (Health Care Services) (PERB 1524M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

UNION OF AMERICAN PHYSICIANS &
DENTISTS,

Charging Party, Case No. SA-CE-19-M

Vv. PERB Decision No. 1524-M

COUNTY OF SAN JOAQUIN (HEALTH CARE May 14, 2003

SERVICES),

Respondent.

Appearances: Gary Robinson, Executive Director, for Union of American Physicians &
Dentists; Steven B. Bassoff, Attorney, for County of San Joaquin (Health Care Services).

Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the County of San Joaquin (Health Care Services) (County) to
a proposed decision (attached) of the administrative law judge (ALJ). The ALJ held that the
County violated the Meyers-Milias-Brown Act (MMBA)! by retaliating against Dr. David
Gran (Gran) for exercising protected rights. Specifically, the ALJ found that the County
disciplined Gran for allegedly providing deficient patient care and discussing union matters
during clinical hours in retaliation for Gran’s organizational campaign on behalf of the Union
of American Physicians & Dentists (UAPD). After reviewing the entire record in this case,

including the proposed decision, the County’s exceptions and UAPD’s response, the Board

' The MMBA is codified at Government Code section 3500 et seq.

finds the ALJ's proposed decision to be free from prejudicial error and adopts it as the decision
of the Board itself. The Board writes separately to address the County's exceptions to the
proposed remedy.
DISCUSSION
The ALJ ordered the County to rescind the plan of corrective action (PCA) imposed on
Gran, destroy any copies of the PCA, and notify the National Practitioner's Data Bank that the
PCA was improperly issued. The County asserts that the ALJ's remedial order was improper,
because PERB does not have jurisdiction to review the quality of care provided by physicians.
That duty, argues the County, is within the exclusive purview of the hospital's Medical
Evaluation Committee (MEC) pursuant to the Business and Professions Code. The County's
only support for this proposition is Business and Professions Code section 809.05 which
provides that: "It is the policy of this state that peer review be performed by licentiates."
Since PERB is not a "licentiate," the County contends that PERB is without jurisdiction to
conduct peer reviews.
The County's argument is fundamentally flawed because the Board is not engaging in
the "peer review" of physicians. Nothing in the ALJ's decision purports to adjudicate the
charges brought against Gran before the MEC. Rather, the issue before the ALJ was the
motivation behind the charges. The ALJ's focus on the County's motive was proper since
PERB is charged with determining whether the County committed an unfair practice. (MMBA
sec. 3509.) The ALJ concluded that the charges against Gran were motivated by Gran's efforts
to unionize the County's physicians. More importantly, the ALJ concluded that but for Gran's
protected activities, the charges would not have been brought before the MEC. The ALJ's
decision thoroughly documents the overwhelming evidence in support of these conclusions.
2

Because the charges against Gran would not have been brought before the MEC but for Gran's
protected activities, the ALJ properly ordered the County to rescind the PCA.
The ALJ also ordered the County to reimburse Gran for the attorneys' fees that he
incurred defending himself before the MEC. The County argues that the MMBA does not
provide for the award of attorneys fees. 	Even if the MMBA allowed for such an award, the
County cites to Hacienda La Puente Unified School District (1998) PERB Decision No. 1280
(Hacienda) for the proposition that an award of attorneys' fees is only appropriate "where a
case is without arguable merit, frivolous, vexatious, dilatory, pursued in bad faith or otherwise
an abuse of process."
The County's reliance on Hacienda is misplaced. Hacienda involves attorneys' fees
that are incurred by a litigant in proceedings before PERB. Gran is not being awarded
attorneys' fees that he incurred while prosecuting this action before PERB. Rather, Gran is
awarded attorneys' fees incurred as part of the MEC proceedings. The purpose of the award is
to "make whole" Gran for the monetary losses that he suffered as a result of the County's
unfair practices. Contrary to the County's assertions, the Board has broad powers to issue
compensatory or "make whole" remedies in unfair practice proceedings. (MMBA
sec. 3509(a) and 3541.3(i); Mt. San Antonio Community College District v. Public
Employment Relations Board (1989) 210 Cal.App.3d 178 [258 Cal.Rptr. 302].) Here, the ALJ
determined that Gran's attorneys' fees were reasonably incurred to defend against the charges
before the MEC. Because the charges would not have been brought against Gran but for his
protected activities, Gran should be compensated for his attorneys' fees in order to make him
whole.
3

Finally, the County argues that the award
of
attorneys' fees is improper because there is
no evidence as to how much in fees Gran actually incurred. This is an issue that can be
discussed between the parties. To the extent the parties are unable to reach a resolution, the
matter can be submitted to the Office
of
the General Counsel which is responsible for
enforcing the Board's order.
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found that the County
of
San Joaquin (Health Care Services) (County) violated the
Meyers-Milias-Brown Act
(MMBA),
Government Code sections 3503 and 3506 and Public
Employment Relations Board (PERB) Regulations 32603(a) and (b
)2,
by retaliating against Dr.
David Gran (Gran), interfering with his right to participate in activities
of
employee
organizations
of
his own choosing, and denying the Union
of
American Physicians & Dentists
(UAPD) the right to represent employees in their employment relations with public agencies.
Pursuant to section 3509(b)
of
the MMBA, it is hereby ORDERED that the County, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Retaliating against Gran by issuing a plan
of
corrective action dated
October 4, 2001, because
of
his participation in an employee organization
of
his own choosing;
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
4

2. 	Interfering with Gran's right to participate in the activities of an
employee organization of his own choosing by issuing him the August 23, and September 17,
2001, letters of warning, and;
3. 	Denying UAPD its right to represent employees by:
a. 	Retaliating against Gran by imposing its plan of corrective action;
and
b. 	Threatening Gran because of his participation in activities
protected by the MMBA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the October 4, 2001, action of the Medical Executive Committee
(MEC) adopting a plan of corrective action for Gran, destroy all copies documenting such
action, including those contained in Gran's personnel file, and notify the National Practitioners
Data Bank that the referral it made in this regard should be expunged from Gran's record.
2. 	Make Gran whole for monetary losses he may have suffered as a result
of the referral of the complaint to the MEC, including but not limited to the reimbursement of
reasonable attorneys fees and litigation expenses incurred in defending against the charges of
physician malfeasance. This award shall include interest at the rate of seven (7) percent per
annum.
3. 	Rescind the letters of warning issued to Gran on or about August 23, and
September 17, 2001, and destroy all copies thereof.
4. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations at San Joaquin General Hospital (Hospital) and
other clinics at which Hospital physicians practice, where notices to employees customarily are
5

placed, copies of the Notice attached hereto as an Appendix, signed by an authorized agent of
the employer. Such posting shall be maintained for a period of thirty (30) consecutive
workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced in size,
defaced, altered or covered by any other material.
5. 	Written notification of the actions taken to comply with this Order shall
be made to the Sacramento Regional Director of PERB in accordance with the director's
instructions. Continue to report, in writing, to the regional director thereafter as directed. All
reports to the regional director shall be concurrently served on UAPD.
Members Whitehead and Neima joined in this Decision.
6

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SA-CE-19-M, Union of American
Physicians & Dentists v. County of San Joaquin (Health Care Services). in which all parties
had the right to participate, it has been found that the County of San Joaquin (Health Care
Services) (County) violated the Meyers-Milias-Brown Act (MMBA), Government Code
sections 3503 and 3506, and Public Employment Relations Board (PERB) Regulations
32603(a) and (b) (Cal. Code Regs., tit. 8, sec. 31001 et seq.), when it retaliated against
Dr. David Gran (Gran) by issuing him a plan of corrective action dated October 4, 2001, and
interfered with his right to participate in an employee organization of his own choosing by
issuing him two letters of warning dated August 23, and September 17, 2001. This conduct
also denied the Union of American Physicians & Dentists (UAPD) the right to represent
employees in their employment relations with the County.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
1. Retaliating against Gran by issuing a plan of corrective action dated
October 4, 2001, because of his participation in an employee organization of his own choosing;
2. Interfering with Gran's right to participate in the activities of an
employee organization of his own choosing by issuing him the August 23, and September 17,
2001, letters of warning, and;
3. Denying UAPD its right to represent employees by:
a. Retaliating against Gran by imposing its plan of corrective action;
and
b. Threatening Gran hecanse of his p::irtir.ip::ition in ::ir.tivitiPc::
protected by the MMBA.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. Rescind the October 4, 2001, action of the Medical Executive Committee
(MEC) adopting a plan of corrective action for Gran, destroy all copies documenting such
action, including those contained in Gran's personnel file, and notify the National Practitioners
Data Bank that the referral it made in this regard should be expunged from Gran's record.

2. Make Gran whole for monetary losses he may have suffered as a result
of the referral of the complaint to the MEC, including but not limited to the reimbursement of
reasonable attorneys fees and litigation expenses incurred in defending against the charges of
physician malfeasance. This award shall include interest at the rate of seven (7) percent per
annum.
3. Rescind the letters of warning issued to Gran on or about August 23, and
September 17, 2001, and destroy all copies thereof.
Dated: --------- COUNTY OF SAN JOAQUIN (HEALTH CARE
SERVICES)
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.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNION OF AMERICAN PHYSICIANS &
DENTISTS,
Charging Party,
V.
COUNTY OF SAN JOAQUIN (HEALTH CARE
SERVICES),
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-19-M
PROPOSED DECISION
(5/16/02)
Appearances: Gary Robinson, Executive Director, for Union of American Physicians and
Dentists; Steven B. Bassoff, Attorney, for County of San Joaquin (Health Care Services).
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union representing physicians alleges that a county hospital retaliated
against the physician who led its successful organizational campaign by disciplining him for
allegedly deficient care of patients and discussing union matters during clinical hours.
The unfair practice charge initiating the action was filed on October 9, 2001, by the
Union of American Physicians and Dentists (UAPD) against the County of San Joaquin
(Health Care Services) (County). Following an investigation, the Office of the General
Counsel of the Public Employment Relations Board (PERR or Board) issued a complaint on
October 26, 2001. The complaint alleges that by issuing Dr. David Gran disciplinary letters on
August 23, and September 17, 2001, and by issuing him a plan of corrective action on
October 4, 2001, the County retaliated against Dr. Gran because he exercised rights guaranteed

by the Meyers-Milias-Brown Act (MMBA). 1 This conduct is alleged to violate sections 35032
and 35063 of the MMBA and PERB Regulations 32603(a)4 and 32603(b).5 The County
answered the complaint on November 14, 2001, admitting certain jurisdictional allegations, but
1 MMBA is found at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 Section 3503 reads as follows:
Recognized employee organizations shall have the right to
represent their members in their employment relations with
public agencies. Employee organizations may establish
reasonable restrictions regarding who may join and may make
reasonable provisions for the dismissal of individuals from
membership. Nothing in this section shall prohibit any employee
from appearing in his own behalf in his employment relations
with the public agency.
3 Section 3506 reads as follows:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 3502.
4 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Regulation 32603(a) reads as follows:
It shall be an unfair practice for a public agency to do any of the
following:
(a) Interfere with, intimidate, restrain, coerce or discriminate
against public employees because of their exercise of rights
guaranteed by Government Code section 3502 or by any local
rule adopted pursuant to Government Code section 3507.
5 Regulation 32603(b) reads as follows:
It shall be an unfair practice for a public agency to do any of the
following:
(b) Deny to employee organizations rights guaranteed to them by
Government Code section 3503, 3504.5, 3505.1, 3505.3, 3508(c)
or 3508.5 or by any local rule adopted pursuant to Government
Code section 3507.
2

denying the other allegations and denying that it had violated the MMBA. An informal
settlement conference held before PERB on November 14, 2001, failed to resolve the matter.
The formal hearing was conducted in Stockton on February 13, and 14, 2002. The
matter was submitted for decision on April 9, 2002, following submission of the parties' post-
hearing briefs.
FINDINGS OFF ACT
The County is a "public agency" within the meaning of section 3501(c). At all times
relevant, Dr. Gran was a "public employee" of the County within the meaning of section
3501(d). Dr. Gran has been employed since 1994 as a physician in the obstetrics/gynecology
(OB/GYN) department of the County's San Joaquin Community Hospital (Hospital), located in
Stockton. The Hospital provides acute care and fulfills the County's obligations as a health
care provider of last resort. The Hospital is part of the County's wider health care system that
includes primary care and out-patient clinics. The Hospital also serves as a teaching hospital
for residents and interns. Its OB/GYN department provides for the delivery of babies through
twelve labor and delivery rooms. The OB/GYN department also has an emergency room and
an out-patient clinic.
The County's Director of Health Care Services is Roger Speed, who is its chief
administrative officer. At times relevant to this dispute, he was the interim chief. The medical
provider staff of the Hospital is governed by the Medical Executive Committee (MEC). The
MEC is composed of the president and vice-president of the medical staff as well as the chairs
of the Hospital's various departments. The officers are elected by vote of the medical staff
The MEC is procedurally governed by a set of bylaws.
The physicians at the Hospital are part of a bargaining unit that was defined in 1998 by
the County's labor relations office.
3

Dr. Gran's Protected Activities
Sometime around 1999, Dr. Gran was approached by other physicians and asked to be a
candidate for the president of the medical staff. He accepted and was elected, serving from
July 1999 through early 2001. Dr. Gran has also served as the chair of the Independent
Practices Committee, which oversees the activities of mid-level practitioners.
In June 2000, Dr. Gran sought nomination for the position of chair of the OB/GYN
department. As president of the medical staff, he complained to Mr. Smith, the former County
medical director, about the installation of Dr. Gregory Lee as the chair of the department.
Dr. Gran believed that he had been forced to withdraw his name from competition for the
position as a result of the administration's erroneous interpretation of the bylaws. Dr. Gran
threatened legal action or a complaint to the County's board of supervisors. Smith told
Dr. Gran that as president of the medical staff he was part of administration and should abide
by its decisions.
Beginning in late 2000, Hospital physicians approached Dr. Gran in his capacity as
president of the medical staff and asked him to facilitate an effort to unionize the workforce.
Dr. Gran spearheaded the effort by investigating the merits of collective bargaining and
facilitating an ongoing debate. To this end, he contacted both UAPD and the Service
Employees International Union (SEIU). During this time, Dr. Gran communicated with
employees concerning the benefits of union representation and distributed written
communications to the staff. His efforts culminated with invitations of UAPD and SEIU to
make presentations to the medical staff in May 200L
SEIU made the first presentation on May 23. UAPD followed on May 30. Both
meetings were attended by the medical staff, including Dr. Lee Adams. Dr. Adams was
identified by Dr. Gran at the hearing as the "Associate Medical Director" and chair of the
4

anesthesia department. At the meetings, Dr. Gran identified Dr. Adams
as
a representative
of
management and asked him privately to leave the meeting. Gary Robinson, executive director
ofUAPD, also asked Dr. Adams to leave the UAPD meeting. Dr. Adams refused on both
occasions. The parties disputed whether Dr. Adams was a member
of
the bargaining unit
eligible to vote in the certification election. UAPD provided a County list
of
unit employees
that did not contain Dr. Adams' s name. The County presented evidence that the bargaining
unit was defined on the basis
of
a specified level
of
yearly compensation, suggesting that
employees not on the list could have been omitted due to not having met the compensation
requirement, as opposed to their management status. However, the County did not provide the
list
of
voters eligible in the election that was held in July 2001 pursuant to UAPD's petition for
recognition. 	Such a list would have been dispositive on the issue as it pertains to this dispute.
Nor was there any evidence
of
Dr. Adams's level
of
compensation. I find that Dr. Adams was
a member
of
management based on his title as associate medical director and the absence
of
clear proof that he was included in the bargaining unit.
Dr. Rebecca Stanley was a staff physician in the OB/GYN department. She would later
become chair
of
the department in November 2001. Sometime in May 2001, she had a
discussion with Dr. Adams in which Dr. Adams told her, "Dr. Gran has got to go." Dr. Stanley
was intimidated. She considered Dr. Adams's statement to be a threat and reported it to
Dr. Gran.
On June 1, 2001, Dr. Gran distributed a memorandum to the medical staff regarding the
union presentations. Dr. Gran identified himself as the president
of
the employee organization
within the Hospital.
5

Departmental Investigation of Quality of Care Issues
Within days of the June 1 memorandum, Dr. Gregory Lee, then-chair of the OB/GYN
department, notified Dr. Gran that he would be investigating Dr. Gran's patient files to
determine ifthere were quality of care issues. Dr. Gran replied by asking Dr. Lee if this wasn't
a "scare tactic."
Dr. Gran then went on an out-of-town vacation from June 7 through June 16. On
June 8, without prior notice to Dr. Gran, Dr. Lee called a meeting of the OB/GYN staff to
discuss quality of care concerns he had with several of Dr. Gran's patients. Dr. Lee did not
bring any of the patient charts to the meeting. Dr. Lee reported that Dr. Gran had refused to
provide a response to him. Dr. Stanley informed Dr. Gran of the meeting by telephone.
Shortly thereafter, Dr. Lee called a second meeting of the staff for June 17. Dr. Lee
called Dr. Gran on the Sunday evening preceding his return to work and notified him of the
meeting. He did not offer to tell Dr. Gran the reason for the meeting. This meeting also
included an administrator with risk management, Donna Haight, Dr. Adams, and other
department members, including Dr. Sebastian (Dr. Lee's wife). The atmosphere of this
meeting was tense. Dr. Lee had prepared a list of the cases he was investigating. The list
contained the patient identifying numbers, but the charts did not accompany them. Dr. Lee
stated to Dr. Gran on behalf of unspecified attendees, "We find there is a problem with these
cases." The list was pushed across the table to 	Gran. Haight told Dr. Gran, "You might as
well talk now." Dr. Adams and Dr. Sebastian also pressured Dr. Gran to respond. Dr. Gran
refused and stated his belief that it was all a "witch hunt" in reprisal for his union activities.
Dr. Lee had conducted quality improvement meetings within the department on a
regular schedule, but these meetings were not part of that process. Quality of care issues were
typically addressed through a peer review process that starts with the measurement of charts by
6

certain predetermined criteria. If the chart fails the criteria it is sent to a review by the
· departmental peers of the physician under inquiry. The physician who is the subject of the
inquiry would have one month's prior notice and an opportunity to review the charts. At the
' meeting to discuss the case, no administrative personnel would be present; it would beboth
collegial and independent. The result of the meeting could be to treat the subject case as an
opportunity for education or, if more serious, to refer it for further investigation. Dr. Stanley
concluded that the manner in which Dr. Lee had raised these quality of care issues was highly
irregular.
During one of the two meetings, Dr. Lee indicated that he would be referring the matter
to the MEC for formal investigation. At this point, Dr. Stanley considered looking for
employment elsewhere. Dr. Stanley testified:
... I felt that basically that this was inappropriate to accuse a
physician, a staff, without bringing the records to a departmentai
review, and I felt that this was very underhanded and I didn't - I
did not want to work for a chairman like Dr. Lee at that time.
Dr. Phillip Ross, another member of the OB/GYN department who attended the second
meeting, could not recall any other formal referral during his seven years at the Hospital.
Dr. Gran testified that during his years as president of the medical staff only one case was ever
referred to the MEC, and that was done informally. In that case, Dr. Gran alone was asked by
the administration to evaluate a case in which a patient died. No disciplinary action resulted
against the attending physician. Dr. Gran conceded hypothetically that a case of physician
negligence involving serious harm or death to a patient could be referred directly to the MEC,
rather than being processed through the departmental peer review process.
Immediately after the second meeting, on June 17, Dr. Lee referred his charges to the
MEC in writing. The letter was addressed to Dr. Rod Felber, the president of the medical
7

staff. 6 Dr. Lee would tell Dr. Stanley that he referred the charges because Dr. Gran refused to
answer his questions. Dr. Felber accepted the charges for review because in his opinion the
matter could not be resolved at the departmental level. He solicited no input from Dr. Gran as
to this point.
By letter dated June 18, Dr. Lee instructed Dr. Gran to respond to the charges in writing
within 14 days. Dr. Lee identified five patients by their patient number. As to Patient #1, he
asked why Dr. Gran did not perform an examination of the patient or assess whether she was in
labor, and why he prescribed Demerol. As to Patient #2, Dr. Lee questioned why Dr. Gran did
not treat the patient more aggressively for issues of fetal lung maturity given the patient's
elevated liver functions and borderline low platelet count. Failing to post complete notices of
patient conditions or posting inaccurate information on the sign-out board were the issues
raised as to Patients #3 and #4. Failing to perform a pre-operative pelvic examination on a
patient on whom he performed a hysterectomy was the issue as to Patient #5.
Dr. Gran responded by memorandum dated July 2, 2001, claming that 14 days was an
insufficient amount of time in which to review all the charts and provide written responses.7
At this point, Dr. Gran, sensing a legitimate threat to his licensure, retained private counsel.
The MEC Referral and Reprimands for Discussing the Union
Dr. Felber wrote to Dr. Gran on July 12, 2001, stating that the MEC had met in
response to Dr. Lee's letter of complaint and Dr. Gran's failure to respond 	a timely fashion. 8
6 There was a lack of interest on the part of Hospital physicians to succeed Dr. Gran as
president of the medical staff until after he floated the idea of union representation. Dr. Felber
then expressed interest. He was elected and his term began July 1, 2001.
7 OB/GYN physicians typically work 50 to 60 hour weeks.
8 Dr. Felber indicates that Dr. Lee's letter to him cited "multiple clinical practice issues
that have occurred over the period of several months to a year," as reported by Dr. Gran's
8

Dr. Felber indicated that the MEC decided that it would seek an outside entity to conduct an
investigation. Dr. Felber proposed to use an independent medical examiner from the Institute
of Medical Quality. However, under advice of counsel, Dr. Gran declined this proposal. After
failing to obtain Dr. Gran's agreement on an outside investigator, Dr. Felber chose to refer the
matter to consultants from the University of California (U. C.) at Davis Medical Center.
Instead of just the five patients identified in Dr. Lee's June 18 letter to Dr. Gran, Dr. Felber's
list of referred patients included two additional patients. The scope of the inquiry was also
expanded to include review of certain other confidential complaints by coworkers and an
assessment of Dr. Gran's "professional behavior."
On July 23, 2001, the ballots for the election whether to certify UAPD as the exclusive
representative were mailed out to the voters. On July 24, Roger Speed placed Dr. Gran on
administrative leave based on his conduct toward other OB/GYN staff. Dr. Gran was alleged
to have created a climate of fear by telling staff a "war" was about to begin, telling employees
they were about to be terminated, lying about who chose the date for the election, and
attempting to initiate a second election process for the medical staff president. He also
allegedly cancelled clinic appointments to attend meetings to advocate for physician
unionization. Speed ordered Dr. Gran "not to talk to hospital staff or come to the workplace."
This action prompted the filing of a separate unfair practice charge with PERB (Case No.
SA-CE-6-M) by UAPD on Dr. Gran's behalf and a request for injunctive relief. PERB granted
the request, and the general counsel's office sought and obtained a temporary restraining order
from San Joaquin County Superior Court Judge Peter K. Saiers on August 8, 2001. The
restraining order expired on August 23.
"peers," "the nursing staff and consulting attendings from U.C. Davis." These issues exceeded
the scope of Dr. Lee's June 18 letter to Dr. Gran.
9

The votes for the representation election were counted on August 10, and UAPD
prevailed by a vote of 24 to 17. An August 17, 2001, settlement agreement was arranged as to
the related unfair practice charge, whereby the County agreed, among other things, to withdraw
the notice of administrative leave in exchange for UAPD's withdrawal of the underlying
charge.
On August 23, 2001, Speed issued Dr. Gran a memorandum, whose subject line read:
"Union Activities During Working Hours." Speed wrote:
I have received a letter from Community Medical Centers
regarding your activities. Please see Attachment # 1.
I draw your attention to the restraining order issued by Judge
Peter K. Saiers regarding union activities during working hours. I
expect you to comply with this order. Please see Attachment #2.
Attachment #1 was a letter from Michael H. Kirkpatrick, the chief operating officer of
Community Medical Centers, Inc., stating that on August 20 Dr. Gran was observed
conversing with clinic staff on the medical floor regarding his "current employment situation
and his activity with the physician's [sic] union." Kirkpatrick asserted that as a result of these
discussions, the clinic fell behind in its patient schedule. Attachment #2 contained that portion
of the judge's restraining order requiring that Dr. Gran have access to employees so long as he
did not discuss union matters during working hours.
On September 12, 2001, the Davis consultants, Drs. Dena Towner and Gary
Leiserowitz, returned their report to Dr. Felber. The one case where the consultants concluded
that Dr. Gran had been negligent was Patient #1. According to their review, this patient had
been admitted to the Hospital two weeks prior to the birth of her child for examination of a
cervical device, called a cerlage,9 that had been implanted. It was recommended that she have
9 A cerclage is a nonabsorbable suture place around an incompetent cervix.

it removed, but she refused. Two weeks later, while still hospitalized, she complained of pain.
Dr. Gran did not perform a speculum or vaginal examination. He made a diagnosis and
prescribed Demerol. The patient delivered prematurely but successfully. A rupture of the
cervix caused blood loss and required surgical repair, a complication the consultants deemed
preventable. However, the consultants noted that Dr. Gran's plan had been to perform a
Caesarian birth "due to the cerclage being in place." They wrote in conclusion that the
management of the patient was negligent and substandard: "[t]he preterm delivery was not
avoidable, but the patient injury was."
The consultants declined to find substandard treatment as to Patients #2, #3 and #4.
They noted that all four of these cases related to the night shift undertaken by Dr. Gran from
May 31, to June 1, 2001. They noted:
There is some indication that Labor and Delivery was particularly
busy on that evening. Although the medical care provided by Dr.
Gran was clearly less than ideal in these four cases, a mitigating
consideration could be the extraordinary volume of clinical work
that night.
Dr. Gran had been working a 24-hour shift on this evening. Dr. Gran was the only
physician on duty that night, and he had worked 20 hours straight before these incidents.
Responsibility for 30 patients during that shift is common. There are typically as many as
seven to eight deliveries per night and as many as four to six happening at any one time.
Under these conditions, the department is forced to rely on a team approach where interns have
responsibility for seeing the patients, taking the medical history, and evaluating. Nurses also
are responsible for reporting significant conditions to the attending physician. There is a
nursing shortage and the interns on duty are not well trained.
The Davis consultants also did not find substandard care for Patients #5, #6, and #7.
The consultants did find areas where Dr. Gran could improve his practice.
11

On September 17, 2001, Speed again wrote to Dr. Gran concerning a complaint he
received about talking to physicians during work hours. The letter concluded that "[a]nother
incident of this nature may result in dismissal." Dr. Gran admitted he discussed the union
effort, for about "one minute." Dr. Gran testified that while on break during a 24-hour shift, he
approached two physicians who did not appear to be with patients. Dr. Marc Krueger, who
had a medical condition of his own, was chatting with Dr. Greg Rossellini. Dr. Gran sought
out Dr. Krueger to check on his condition. Dr. Rossellini asked Dr. Gran how the union
campaign was going, to which Dr. Gran recalls saying, "slow but sure." Dr. Gran left after
their brief conversation. A complaint by a third physician, Dr. Richard Buys, the medical staff
president preceding Dr. Gran, was made to Speed regarding this incident.
Dr. Buys' s letter to Speed states that Dr. Gran approached the two physicians while
they were on duty seeing patients, made statements critical of the administration, urged
Dr. Rossellini to join the union, and made the two feel uncomfortable based on the content of
the conversation. The statements in Dr. Buys's letter are hearsay. Since I have no basis to
assess the credibility of the witnesses cited in the letter and find Dr. Gran to be a credible
witness, I credit Dr. Gran's version of the incident, particularly as to the claim that the
conversation interfered with the physicians' performance of clinical duties.
Dr. Gran's Leave to Prepare a Written Response to the MEC
On September 18, 2001, Dr. Felber ordered Dr. Gran 	review the patient charts and
respond to him regarding the concerns raised by the Davis report. By letter dated
September 19, Dr. Felber notified Dr. Gran that he had been placed on an immediate 14-day
leave with pay for the purpose of allowing him time to respond to the concerns raised in the
Davis report. Dr. Felber noted Dr. Gran's previous refusals to respond to the clinical concerns,
"initially by Dr. Lee, then by the Department of Obstetrics CQI functions, and then by Medical
to
12

Executive Officers and then by the [Davis] Consultant, Dr. Dena Towner."10 Upon advice of
counsel, Dr. Gran requested the charts.
On September 22, 2001, Dr. Felipe Dominguez, chair of the pediatrics department,
contacted Dr. Gran proposing a meeting with two other Hospital physicians, Drs. Dee Pak
Shrivastava and James Pucelik, at Dr. Gran's house. The purpose of the meeting was to speak
with Dr. Gran about the MEC inquiry. It occurred on a Sunday late in September, either the
23 rd or the 30 th . Dr. Gran testified that Dr. Dominguez stated he would "guide [Dr. Gran]
through the process and save his job." However, Dr. Dominguez told Dr. Gran that he
essentially would have to "grovel" before the committee if they were to help him.
Dr. Dominguez also told Dr. Gran that he "would be okay if he would keep quiet for a year."
Dr. Gran's wife, Patrice, who sat in on the meeting, testified that the physicians told Dr. Gran
that some on the MEC were "out to get him." She heard them advise her husband to "lay low,"
"wear a tie," and "not talk about the union." Both Dr. Gran and his wife testified that the three
other physicians considered the quality of care issues not to be significant.
Dr. Dominguez denied that anyone downplayed the seriousness of the quality of care
issues, and to the contrary, that they advised Dr. Gran to address them in a professional way.
Dr. Dominguez's intent was to convey the idea that the issues might be resolved in a "quality
improvement" manner. Dr. Gran was receptive at first, but became resistant over the course of
the meeting. Dr. Dominguez could not recall if anyone made a reference to union activity.
Dr. Shrivastava, is a pulmonologist and internist, who was also vice-president of the
medical staff and chair of the Quality Improvement Committee at the time of the inquiry. He
accepted Dr. Dominguez's invitation to the meeting out of concern that the issues had
escalated, at least in part because of Dr. Gran's failure to respond to the allegations. He
10 Dr. Gran was interviewed by the Davis consultants.
13

conceded that he may have believed the charges were exaggerated and he personally believed
that Dr. Gran was a qualified physician. Dr. Shrivastava agreed that someone advised
Dr. Gran to wear a tie. He could not recall
if
anyone told him not to discuss the union.
Dr. Pucelik is an orthopedic surgeon. According to his testimony, the main point
Dr. Pucelik tried to convey to Dr. Gran was that he should respond to the allegations even
if
he
believed the investigation to be a witch hunt.
In resolving the conflicts, I note that all the witnesses appeared for the most part
credible and that some
of
the conflicts can be attributed simply to differences in how certain
statements were interpreted or recollected. Dr. Dominguez was guarded and nervous while
testifying, and I find his testimony the weakest. Dr. Gran and his wife appeared to have a
much firmer recollection and ability to relate the details
of
what was said during the meeting
than any
of
three County witnesses. Significant for purposes
of
this case, I find that Dr. Gran
was advised to be compliant in the process and not discuss the union. I believe there were
some statements that the medical issues were not significant, but were probably offered in the
"assuming-for-purposes-of-argument" vein. I also believe Dr. Gran was warned there were
members
of
the MEC who were not sympathetic to him.
Dr. Gran prepared a written response to Dr. Felber dated October 3, 2001. As to
Patient
#1
he noted that due to the busy schedule he was not able to see her until 2:00 p.m.
after arrival on the shift at 7:30 a.m. He was called to evaluate the patient again at 1:00 a.m.
Dr. Gran noted pain for a couple
of
hours, and ordered fetal heart monitoring to indicate the
onset
of
labor. He denied that either the attending nurse or first-year intern advised him
of
any
complications. As to the Patient #6, Dr. Gran asserted that the treating physician was not
himself but Dr. Lee. While acknowledging his full legal responsibility as the team leader, he
14

noted the nursing shortage and issues related to training. He admitted that improvements in the
flow of information were needed and vowed he would endeavor to correct that situation.
The October 4, 2001, MEC Meeting and Adoption of the Plan of Corrective Action
On the day after Dr. Gran submitted his response, the MEC met to make its findings
regarding the quality of care issues. The meeting began with Dr. Gran being given an
opportunity to address the full committee. He was queried by the committee regarding the
cases reviewed by the Davis consultants. Dr. Gran provided further explanations of his actions
with regard to each of the cases. Dr. Gran was then excused and the committee deliberated
before resolving to take action. 11
At the outset of the meeting it was revealed that Dr. Lee was the attending physician
who came on duty the morning following Dr. Gran's 24-hour shift ending on June 1, 2001, and
that several of the patients involved in the investigation were patients during that shift.
It would also be revealed that Dr. Lee was unable to speak to Dr. Gran following the
end of Dr. Gran's shift and that this led to confusion about the status of several of the patients
remaining in the ward. As to Patient #1, Dr. Gran provided further testimony in defense of the
accusation by the Davis report that surgery to repair the cervical rupture was avoidable.
11 Proceedings of the MEC are confidential under the terms of Evidence Code section
1157. This statute protects the peer review process from inquiry for litigation purposes so that
the salutary purposes of such activities are not inhibited or thwarted. However, this privilege
has been construed as applying essentially only to private suits against physicians and
discovery of the material is not beyond the reach of governmental agencies pursuing inquiries
on behalf of the public. (See People v. Superior Court (Memorial Medical Center) (1991) 234
Cal.App.3d 363 [286 Cal.Rptr. 478].) Therefore, I have ruled that the proceedings of the MEC
are admissible in this case, but will be sealed from public view. In addition, anonymity for the
participating physicians (with the exception of Dr. Gran), will be preserved by identifying each
with a letter of the alphabet from A to L. The letters shall be assigned by reference to the
roster of attendees noted on the minutes of the October 4, 2001, meeting, beginning at the top
of the first column of names (A-D), proceeding next to the top of the middle column (E-H),
and finishing with the right column (I-L).
15

Dr. Gran noted that he had discussed with the patient at length the risks of not removing the
cerclage prior to birth, that she had been so advised previously, but had repeatedly refused to
have it removed. Dr. Gran also indicated that the chart revealed that Dr. Lee was informed
about the patient's condition by another member of the staff.
As to Patient #2, Dr. A guided the discussion by suggesting that the issue concerned
the failure to diagnose a possible "HELP" syndrome, which might have benefited from the
administration of steroids. The HELP syndrome is identified by blood tests indicating a drop
in platelet count. Dr. Gran noted that the patient had been transferred from Tracy, where she
had been under a physician's care. Thus, she arrived with a two-day medical history. Dr. Gran
reviewed the second of three blood tests and acknowledged the dropping platelet count. He did
not order medication, but instead ordered a third lab test halfway through his shift. He
contacted U. C. Davis at 6:00 p.m. on June 1, at which time he received confirmation of the
HELP condition. Dr. Gran noted that Dr. Lee contacted U. C. Davis earlier in the afternoon, at
which time Dr. Lee was advised to begin steroids. In response to the charge that he delayed
seeing the patient for more than 12 hours, Dr. Gran indicated that an intern saw the patient
following her admission and reported to him. Dr. Gran believed he saw the patient himself,
but acknowledges he failed to document that in the chart.
As to Patient #3, the committee agreed that the issue concerned the failure to diagnose
elevated blood pressure and proteinuria. Dr. Gran asserted that this failure resulted from the
department's practice ofrelying on nurses to report the condition and the fact that his shift was
extremely busy - a fact confirmed by the Davis report. He also noted that in many cases the
attending physician does not see a patient who delivers. In this case, the nurse did not report
the symptoms, the internist missed the diagnosis, and physician who followed Dr. Gran also
missed the diagnosis despite the patient's elevated blood pressure throughout that shift.
16

Finally, the third attending physician made the diagnosis. The patient delivered successfully,
with no complications noted. Dr. Gran also challenged the Davis opinion by citing the nursing
shortage at the Hospital and the County's failure to address that situation, as well as the
comparatively lower number of deliveries and higher number of interns available to monitor
patients at Davis.
Dr. A introduced the next three cases as involving a pattern of failing to give pelvic
exams. Dr. Gran admitted the situation may have involved his failure to document. In
mitigation he explained that he has performed hundreds of surgeries and that it was his custom
to give pelvic exams in all cases. As to the first patient, Dr. Gran claimed that he did perform
the exam; as to the second, one was performed by the surgical resident; and as to the third, the
physician performing the surgery examined the patient.
Dr. A then opened the floor to discussion of more general concerns. Dr. H volunteered
that in his department no one checks out personally to the new physician coming on. The new
physician has to "figure it out" himself. Dr. E questioned why Dr. Gran's case was even
brought before the MEC. Dr. H believed it was because Dr. Gran refused to respond to
Dr. Lee by reviewing the charts. Dr. H offered that in his department, the chair would
approach a physician individually with a serious quality of care issue. To this, Dr. Gran
responded that Dr. Lee approached him at a stressful time. He had just completed an
exhausting shift and was just one day away from his scheduled out-of-town vacation. And
Dr. Lee had also threatened Dr. Gran with formal administrative action if he did not respond.
Dr. Gran went on to explain that his initial reaction to Dr. Lee was to believe a witch
hunt was occurring. In support of this claim, Dr. Gran noted that there were no medical issues
of an acute or long-term nature and there were no sentinel events (i.e., malfeasance leading to
severe or potentially severe patient outcomes, including disability or death). He noted the
17

compressed time frame of the meetings Dr. Lee scheduled, the demand for an immediate chart
review (contrary to the normal departmental quality improvement activities), and the
inquisitorial nature of the demand for answers at the meeting the day he returned from
vacation. Dr. Gran invited the committee to interview other members of his department for
their opinions. He indicated that Dr. Stanley became very upset during the meeting at which
answers were demanded of him and that she and Dr. Ross told him they were glad he refused
to answer the questions. Dr. Gran also asserted that Dr. Lee's investigation came "specifically
at the time the union was coming together."
The committee was skeptical. Dr. H opined that the other department members were
intimidated and would be reluctant to speak. Dr. K asserted that Dr. Lee did talk with
physicians on an individual basis about quality of care issues, and that Dr. Lee had told him
that Dr. Gran promised Dr. Lee he would address the issues following his return from vacation.
Dr. Gran disputed this, claiming he proposed that Dr. Lee have a departmental meeting where
global issues could be discussed. Dr. K claimed that Dr. Lee would have addressed the MEC
regarding Dr. Gran but was out of town on this date.
Dr. J asked if there was some event that triggered the witch hunt, and if so, was the
inquiry purely vengeful and without any substance whatsoever. Dr. A suggested that these
relatively minor issues could have been resolved if Dr. Gran had just met with Dr. Lee earlier.
Dr. B demanded proof that Dr. Gran was targeted. In response to these questions, Dr. Gran
offered the fact that he had lodged the written complaint to the former medical director
concerning the election of Dr. Lee as chair of the department in June 2000. Within two or
18

three days of that complaint, Dr. Lee demanded that Dr. Gran address certain "behavioral"
issues in writing. 12 He stated others told him he had reason to be fearful and he believed them.
At this point, Dr. B took a particularly aggressive tack with Dr. Gran. She asserted that
Dr. Gran was paranoid and that his paranoia extended well beyond the department, implying to
the MEC as well. She accused Dr. Gran of continually "putting up hurdles" and asked him if
he would admit he had contributed to the problem in this instance. Later, Dr. B accused
Dr. Gran of being "intimidating" and "not interacting well with others." She told him that she
had heard that people do not want to work on his shift and suggested that he "look in the
mirror." She asked if Dr. Gran would be willing to change his attitude, seek out some remedy
for his problem, and be more "cooperative," "compliant" and "professional." Dr. H was
somewhat in agreement, suggesting that Dr. Gran appeared to have been dismissive of the
quality improvement process, citing Dr. Gran's July 2 memorandum to Dr. Lee, a leading point
made by the Davis report under the heading addressing "professional behavior." To this,
Dr. Gran stated that the memorandum was simply a follow-up request for more than the two
weeks he had been granted to respond in writing, without the benefit of any time off from his
duties. In a more general vein, Dr. Gran requested for the third time that the committee
interview his fellow physicians.
Dr. D then spoke in a more conciliatory tone. Dr. D stated that Dr. Gran's responses to
the committee were good and that there was no breach of the duty of care. He believed the
extremely heavy caseload excused Dr. Gran's less than adequate chart documentation.
However, Dr. D believed that the committee's inquiry could have been avoided if Dr. Gran had
12 The Davis report rejected Dr. Gran's claim that the investigation was in retaliation
for his union activities, claiming that his "behavioral" issues were first documented on
June 8, 2000, at a time predating any union activity.
19

been more forthcoming earlier. Following Dr. D's statements, the committee excused
Dr. Gran.
The chair of the committee began the discussion by offering the committee a chance to
take time to consider the wealth of information presented. But there was no interest in
postponing a decision. Dr. J began the discussion, agreeing with Dr. D that there were no
sustainable medical issues contained in the Davis report. Dr. J suggested that despite the lack
of medical issues, the committee needed to convince Dr. Gran that no one was vindictive
toward him. Dr. B asserted that the issue with Dr. Gran concerned his professional attitude;
that Dr. Gran was always going to "butt heads and be angry." Dr. X13 agreed there were no
medical issues and wished there was something more substantive. Dr. B insisted that the
behavioral issue needed to be addressed and that Dr. Gran needed professional help to address
his paranoia. Dr. K again spoke on behalf of Dr. Lee and stated that if you spoke with
Dr. Gran about "some of his language with nurses" he would improve for awhile but then
revert.
The committee developed a consensus that no one was not out to get Dr. Gran but that
the committee could not ignore the problems with his professional attitude. The chair then
suggested the committee look at possible corrective actions listed in the bylaws. Dr. I
suggested that Dr. Gran met the California Medical Association's profile of a "disruptive"
physician. Others concurred. Consensus was developed that an appropriate corrective action
would involve monitoring regarding pelvic examinations for some duration along with
behavioral counseling and sexual harassment training. Near the end of the meeting, Dr. H
asked if there was some action the committee could take that would not be reportable to the
13 There is one doctor whose name does not appear on the roster heading the minutes,
but does appear in the body of the text.
20

National Practitioner's Data Bank, which maintains a public record of disciplinary actions
taken against physicians. Voicing again her strong opinion that Dr. Gran be dealt with
seriously, Dr. B revealed that an intern complained about Dr. Gran's sexual jokes and asked
that no women ever be assigned to work with Dr. Gran. The committee then voted and
unanimously approved a plan of corrective action for Dr. Gran. This included a 90-day period
for monitoring Dr. Gran's clinical performance. By taking such action, the Hospital
considered it a legal duty to report the matter to the National Practitioner's Data Bank.
Dr. Gran appealed the MEC's decision, as was his right under the MEC bylaws. A due process
hearing was scheduled but not held at the time of the formal hearing in this matter.
The MEC reported its disciplinary action to the National Practitioner Data Bank.
Phylis Barenchi, the medical staff coordinator for the Hospital with responsibility for ensuring
compliance with the medical staff bylaws, contacted the Bank and was advised to report the
action notwithstanding that it was not yet final. However, the bylaws ( sec. 7. 7-1) state in
pertinent part:
The authorized representative shall report an adverse action to the
National Practitioner Data Bank only upon its adoption as final
action and only using the description set forth in the final action
as adopted by the Governing Board.
"Governing Board" is defined as the Board of Supervisors of San Joaquin County.
(Sec. 1.3-4.)
ISSUES
1. 	Did the County retaliate against Dr. Gran for his protected activities when the
MEC imposed its plan of corrective action?
2. 	Did the County retaliate against Dr. Gran or otherwise interfere with his right to
engage in activities on behalf ofUAPD by issuing him the two memoranda dated August 23,
and September 17, 2001, regarding his discussion of the union with other employees?
21

CONCLUSIONS OF LAW
The Plan of Corrective Action
The complaint in this case alleges that the County imposed a plan of corrective action
on Dr. Gran "because of' his exercise of activities that were protected under the MMBA.
Section 3506 of the MMBA and PERB Regulation 32603(a) prohibit such conduct. To
establish a prima facie case of discrimination under these provisions, the charging party must
show that: 	(1) the employee exercised rights under MMBA; (2) the employer had knowledge
of the exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employee because of the exercise of those rights. 	(Campbell Municipal Employees
Association v. City of Campbell (1982) 131 Cal.App.3d 416 [182 Cal.Rptr. 461] (Campbell);
San Leandro Police Officers Association v. City of San Leandro (1976) 55 Cal.App.3d 553
[127 Cal.Rptr. 856] (San Leandro).)
To prove this violation, UAPD bears the initial burden of showing evidence that
Dr. Gran engaged in protected activity, that the County knew of the activity, and that the
protected activity was a "motivating factor" in the County's decision to impose the plan of
corrective action. (California State University, Hayward (1991) PERB Decision No. 869-H;
Novato Unified School District (1982) PERB Decision No. 210.) 14 Motivation may be proven
14 Since the language of the MMBA defining employee rights and the unfair practice of
discrimination is substantially similar to that found in the National Labor Relations Act
(NLRA) (29 U.S.C., sec. 141 et seq.) and the other statutes administered by the PERB, it is
proper to rely on cases construing the other acts in analyzing these terms. 	(Fire Fighters v.
City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507].) 	In addition to the MMBA, PERB
administers the Educational Employment Relations Act (Gov. Code, sec. 3540 et seq.), Ralph
C. Dills Act (Gov. Code, sec. 3512 et seq.), and the Higher Education Employee-Employer
Relations Act (Gov. Code, sec. 3560 et seq.).
22

by either direct or circumstantial evidence, or a combination of both. (Carlsbad Unified
School District (1979) PERB Decision No. 89.) To establish that the employer was motivated
to impose reprisals because of the exercise of protected rights, the charging party may rely on
circumstantial evidence, such as a departure from standard procedures (Campbell, supra, 131
Cal.App.3d at p. 424), disparate treatment (San Leandro, supra, 55 Cal.App.3d at pp. 557-558;
Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683,
688 [214 Cal.Rptr. 350]), inadequate justification (Campbell, supra, 131 Cal.App.3d at p. 424),
the closeness in time of the retaliatory act to the protected activity (Santa Clara Unified School
District (1985) PERB Decision No. 500), inadequate investigation prior to the imposition of
discipline (State of California (Department of Parks and Recreation) (1983) PERB Decision
No. 328-S), and employer animosity towards union activists (Marin Community College
District (1980) PERB Decision No. 145).
Once protected activity is established to be a motivating factor, the burden shifts to the
employer to demonstrate that it would have taken the same action even in the absence of the
protected conduct. (Novato Unified School District, supra, PERB Decision No. 210; Martori
Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 730 [175
Cal.Rptr. 626].)
The evidence of unlawful motive most notable in this case is the close timing between
Dr. Gran's protected activity and the commencement of disciplinary action against him. The
pattern began approximately one year prior to Dr. Lee's June 2001 investigation. In June
2000, within days of Dr. Gran's complaint to the former medical director protesting Dr. Lee's
installation as department chair, Dr. Lee documented "behavioral" problems on Dr. Gran's
part. Dr. Gran's complaint on this occasion constituted self-representation within the meaning
of section 3502 and was therefore protected. (Pleasant Valley School District (1988) PERB
23

Decision No. 708.) One year later, within days after the June 1 memorandum from Dr. Gran to
the staff regarding the UAPD presentation, Dr. Lee identified quality
of
care issues involving
Dr. Gran. Dr. Gran's campaign organizing was protected activity. (Regents
of
the University
of
California (1983) PERB Decision No. 329-H; Marin Community College District, supra,
PERB Decision No. 145.)
There was also compelling evidence
of
disparate treatment and departure from standard
procedures in regard to the initial investigation
of
the quality
of
care issues. This evidence was
essentially unrebutted. No evidence was offered by the County illustrating other charges
referred to the MEC or the types
of
issues leading to such referrals,
if
indeed there were any.
From this record, I find that the formal referral
of
Dr. Gran to the full committee was
unprecedented. Most
of
the issues first raised by Dr. Lee, including Dr. Gran's poor record
keeping, noncompliance with check-out procedures, failure to perform pelvic examinations,
and failure to closely monitor the condition
of
patients resulted in no significant harm to
patients. The Davis report conceded that, apart from the cervical rupture, the issues could have
been departmental ones owing to the stressed resources
of
the OB/GYN department and the
heavy responsibilities
of
the attending physicians. Dr. Gran justifiably asserted that these
issues should have been brought up in the normal internal quality improvement process.
Dr. Lee was also the physician who came on duty immediately after Dr. Gran's exhausting
24-hour shift. At no time did he reveal this to other department members. Indeed, even in his
own June 18 letter to Dr. Gran, he did not identify by name the physician who allegedly
suffered due to Dr. Gran's inadequate check-out information. Dr. Lee did not bring any
of
the
charts to the either of the departmental meetings. OB/GYN department physicians believed
these meetings were irregular and threatening.
24

Dr. Lee quickly determined that he would refer the case to the MEC, no later than the
time of the second departmental meeting. After this "rush to judgment," he made the June 18
demand for a written response from Dr. Gran, the response to which both he and the MEC
would later deem to be "dismissive" of the process. Dr. Lee's referral to Dr. Felber expanded
the scope of the inquiry without notice to Dr. Gran. Two additional patients were added (one
of whom was not his patient), other confidential complaints were identified, and Dr. Gran's
professional behavior became a subject of inquiry. There ultimately proved to be little basis in
fact for the allegations against Dr. Gran, as the MEC concluded that there were no material
deficiencies with respect to Dr. Gran's medical performance. (See Hall v. NLRB (8 th Cir.
1991) 941 F.2d 684, 688 [138 LRRM 2266] [pretextual discipline where reasons have no basis
in fact, are implausible, false or shifting].)
There is also evidence of anti-union animus in the threat by Dr. Adams issued very
shortly before the investigation of Dr. Gran commenced. Dr. Adams, a close ally of Dr. Lee
who attempted to interrogate Dr. Gran in the second departmental meeting and who, as
associate medical director, would have had reason to be upset with Dr. Gran for attempting to
exclude him from the union presentations, expressed his desire to have Dr. Gran removed from
the department.
The County contends that the referral of Dr. Lee's concerns to the MEC was justified
by Dr. Gran's refusal to respond at the departmental level in a timely manner, that the U. C.
Davis report independently identified quality of care issues, and that based on the finding of
substandard care in the Davis report, the MEC was required to take some punitive action
against Dr. Gran pursuant to its peer review responsibilities and the County's responsibility to
provide quality care to its patients.
25

PERB has held that an employer may avoid liability for an adverse action where
unlawful motive is established as to an agent who recommends disciplinary action but where
the discipline itself is imposed by another agent who has conducted an independent and
impartial investigation. (Konocti Unified SchoolDistrict (1982) PERB Decision No. 217
(Konocti).) That rule does not apply in this case. Konocti is distinguishable because in this
case, the MEC's investigation fell short of a full and impartial inquiry. For example, as to the
key issue of whether Dr. Gran in essence precipitated the referral to the MEC by his refusal to
respond to Dr. Lee's inquiry in a timely manner, the MEC refused despite three requests on
Dr. Gran's part to have his department colleagues canvassed as to their'opinion of whether
Dr. Lee's inquiry was tainted. The committee relied on the hearsay assertions of one of its
more biased members who in effect testified on behalfof Dr. Lee. Its aggressive questioning
of Dr. Gran stands in stark contrast with its unquestioning acceptance of what Dr. Lee would
reputedly have claimed regarding his treatment of quality improvement issues within the
department had he been present at the October 4 meeting to testify. In addition, after rendering
its decision, the MEC failed to accord Dr. Gran the protections of the bylaws when it relied on
advice from its medical staff coordinator in referring the matter to the National Practitioners
Data Bank.
It is also clear from the record that the MEC was not required to act on the Davis report
because it rejected the report's only explicit adverse finding as to Patient #1. After several
members of the committee concluded, based on Dr. Gran's written submission and verbal
responses to the committee, that there were no quality of care issues, the committee agreed to
impose the plan of corrective action based on perceived behavioral or attitudinal problems on
Dr. Gran's part. The basis for these problems came largely from the committee members'
knowledge of uncorroborated complaints against Dr. Gran. Indeed, the transcending theme
26

developed during the committee's deliberation was that Dr. Gran's belief that he was the target
of Dr. Lee's witch hunt15 resulted from his unjustified paranoia and general belligerence. The
committee ultimately concluded that Dr. Gran had been disruptive by failing to respond to
Dr. Lee in a more professional or collegial manner. Even assuming that the MEC itself did not
harbor animus toward Dr. Gran for his protected activities and based its decision primarily on
Dr. Gran's alleged hostility toward the peer review process, the MEC's adoption of this view
without fair consideration of Dr. Gran's contention that Dr. Lee was engaged in a witch hunt
amounted to a ratification or adoption of Dr. Lee's initial unlawfully motivated referral. 	(See
Antelope Valley Community College District (1979) PERB Decision No. 97; Compton
Community College District (1987) PERB Decision No. 649.)
Moreover, further assuming Dr. Gran was disciplined solely for his disruptive behavior
and defiance of Dr. Lee, Dr. Gran's response to Dr. Lee was provoked by the circumstances
under which Dr. Lee initiated his investigation. A well established line precedent under the
NLRA justifies this conclusion. In these cases, the National Labor Relations Board (NLRB)
and the courts begin by recognizing the need to balance the employer's right to run its office as
it pleases against the employees' right to engage in protected activities without fear of
retaliation. (Trustees of Boston University v. NLRB (1977) 548 F.2d 391, 393 [94 LRRM
2500].) In Trustees of Boston University, a clerical employee employed at a student health
center was found to have been terminated as a result of her participation in concerted activity.
The employee's personality clash with her supervisor and offensive conduct in dealings with
supervisors and fellow employees, including the brandishing of a pair of scissors, was cited by
the employer in justification for the dismissal. But the NLRB found that the employee's
15 The American Heritage Dictionary defines "witch hunt" as "a political campaign
launched on the pretext of investigating activities subversive to the state."
27

misconduct was triggered by the employer's own wrongful conduct. (Id. at pp. 392-393.) 	In
balancing the competing interests of employee and employer, the appellate court, in affirming
the NLRB's decision, noted that:
if an employee's conduct is not egregious there is "some leeway
for impulsive behavior", NLRB v. Thor Power Tool Co., 351
F.2d 584, 586-87 (7th Cir. 1965). Crown Cent. Petroleum Corp.
v. NLRB, 430 F.2d 724, 730 (5 th Cir. 1970); see Hugh H. Wilson
~ v. NLRB, 414 F.2d 1345, 1356 (3 rd Cir. 1969), cert. denied,
397 U.S. 935, 90 S.Ct. 943, 25 L.Ed 2d 115 (1970). And the
leeway is greater when the employee's behavior takes place in
response to the employer's wrongful provocation.
"An employer cannot provoke an employee to the point
where she commits such an indiscretion as is shown here
and then rely on this to terminate her employment.
(Citation omitted.) The more extreme an employer's
wrongful provocation the greater would be the employee's
justified sense of indignation and the more likely its
excessive expression."
NLRB v. M & B. Headwear Co., 349 F.2d 170, 174 (4 th Cir.
1965). Further, at least so long as the employee's indiscretions
are not major, it is immaterial that the employee's misconduct
would constitute a sufficient reason for discharge if the actual
reason for discharge is the employee's participation in concerted
activity. Hugh H. Wilson Corp. v. NLRB, supra, 414 F.2d at
1352. [Fn. omitted.]
(See also Rio Hondo Community College District (1982) PERB Decision No. 260, quoting
NLRB v. Thor Power Tool Company (7 th Cir. 1965) 351 F.2d 584 [60 LRRM 2237].)
Similarly, in NLRB v. Florida Medical Center, Inc. (5 th Cir. 1978) 576 F.2d 666 [98
LRRM 3144], the NLRB found that a union activist was threatened and then discharged during
an organizational campaign. The employer claimed that the employee's work suffered during
the campaign, specifically by her displaying a "poor attitude." In discharging her, the
employer relied heavily on the employee's statement that the chief administrative officer was a
"Mafia director." That statement was spurred by her belief that the employer was
downgrading her work because of her union activity. The court of appeals enforced the
28

NLRB' s order, stating "[ t]he hospital may not rely upon allegations of poor work attitude in
the face of a record that demonstrates that poor attitude and union participation were, in its
view, synonymous." (Id. at p. 672.) 	The court also noted that the disciplinary referral
happened extremely quickly, and that no reasonable person would have taken the charge
seriously. (Ibid.)
The same principle was also applied in Wilson Trophy Co. v. NLRB (8 th Cir. 1993) 989
F.2d 1502 [143 LRRM 2008]. There the employee who engaged in protected activity was
interrogated and reprimanded one day following her contacting a union. The employee took
offense and the relationship between her and her supervisor deteriorated immediately
thereafter. The supervisor then began documenting the employee's bad attitude and disruptive
behavior. The employee was fired because of her poor attitude despite there having never been
any complaints about her behavior prior to the protected activity. (Id. at pp. 1505-1506,
1509.)16
Under these authorities, I conclude that even if the MEC was not motivated by
Dr. Gran's protected activity, its decision to discipline him for his bad attitude rested on
responses from Dr. Gran that were provoked by Dr. Lee's retaliatory investigation of him.
Dr. Gran's passive-aggressive behavior in responding to Dr. Lee's investigation was justified
under the circumstances. His response was even less defiant than those actions illustrated by
the cases cited above.
The County also contends that Dr. Gran's exclusive remedy for challenging the plan of
corrective action is through the appeal procedure in the medical staff bylaws and the court
review process thereafter. The discipline, it claims, was imposed pursuant to the peer review
16 See also ABF Freight System, Inc. v. NLRB (1994) 510 U.S. 317, 319-322 [145
LRRM 2257] [firing of union activist for lying about tardiness was a pretext, as indicated by
the fact that supervisors had warned him that management as "gunning" for him].)
29

process, a procedure authorized by the Business and Professions Code, 17 and the findings as
they relate to issues of patient care are beyond PERB' s expertise. The County cites no case
authority for this argument, and accordingly, I reject it. PERB has held that decisions which
are otherwise vested by statute exclusively within the discretion of public employer may
nevertheless be overturned if the discretion was exercised in violation of rights guaranteed by
the state's collective bargaining statutes. (McFarland Unified School Dist. v. Public
Employment Relations Bd. (1991) 228 Cal.App.3d 166 [11 Cal.Rptr.2d 405] [affirming
PERB's decision that school board decisions to deny tenure to probationary teachers are not
insulated from review for discriminatory animus].) The MEC's decision is not insulated from
PERB review simply because it was made pursuant to the peer review process.
I therefore find that the plan of corrective action was imposed on Dr. Gran because of
his protected activities in violation of section 3506 and PERB Regulation 32603(a). This
conduct also denied UAPD its right to represent employees in their employment relations with
the County by frustrating its attempts to organize the unit employees, in violation of section
3503 and PERB Regulation 32603(b).
The Letters Regarding Union Campaigning at the Worksite
The complaint alleges that Interim Director Speed's August 23, and September 17,
2001, warning letters to Dr. Gran were issued in retaliation for his union activities. The
County contends that the letters were not disciplinary in nature because they simply warned
Dr. Gran to comply with terms of the court order not to engage in union activities on work time
and that, if they were disciplinary, they were not issued because of his union activities. UAPD
contends that the letters were threatening and that they were disciplinary, because, at the very
17 See Business and Professions Code sections 809.1 to 809.6.
30

least, they evidenced an attempt to build documentation for more serious discipline. UAPD
also cites evidence indicating that the letters were pretextual in nature.
I do not believe it to be seriously in issue whether the letters were issued "because of'
Dr. Gran's union activities, as required by section 3506. The matters cited in the letters -
Dr. Gran's discussion of the union at the work site - were union activities. In order to
demonstrate a violation of interference with rights guaranteed by the MMBA or retaliation for
the exercise of those rights, it must be shown that there was a causal connection between union
activities and the employer's action challenged in the unfair practice. (Carlsbad Unified
School District, supra, PERB Decision No. 89 [unified test for discrimination and
interference].) 	That causal connection is demonstrated here.
The pertinent question in an interference/discrimination case is whether at least slight
harm to the exercise of guaranteed rights occurred. (Carlsbad Unified School District, supra,
PERB Decision No. 89.) I find that the letters constituted at least implied threats of
disciplinary action for further union activities. (Los Angeles Unified School District (1988)
PERB Decision No. 659.) Indeed, the September 17 letter was explicit in that manner, stating:
"Another incident of this nature may result in dismissal." I also find that because the letters
evidenced an attempt to document misconduct, "a reasonable person under the same
circumstances" would consider such letters to be adverse. 	(Newark Unified School District
(1991) PERB Decision No. 864.)
Whether viewed as discrimination or interference, the critical issue is whether the
County's conduct was justified by legitimate business reasons. 	(Public Employees Assn. v.
Board of Supervisors (1985) 167 Cal.App.3d 797,807 [213 Cal.Rptr. 491]; Carlsbad Unified
School District, supra, PERB Decision No. 89.) This issue essentially turns on the veracity of
31

Speed's contention that Dr. Gran was engaged in union solicitation during working hours or in
a manner otherwise disruptive to the County's operations.
In this regard, the County has failed to carry its burden. In both cases, Speed relied on
vague complaints by two individuals. He apparently did no further investigation of the matters
and failed to inquire of Dr. Gran regarding his version of the events. As to the first incident,
for example, in which the director of a medical clinic asserted that Dr. Gran's discussion of the
union caused the clinic to fall behind in its schedule, the County offered no evidence to
substantiate that claim. Nor did it offer any evidence substantiating the claim that Dr. Gran or
the person or persons with whom he was speaking were required to be working at the time.
Similarly, as to the second incident, no evidence was offered to rebut Dr. Gran's testimony that
he approached Drs. Rossellini and Krueger at a time when they were not treating patients, that
the conversation was very brief, and that he only brought up the union in response to a
question by one of the physicians. 18
I therefore find that the County violated section 3506 by issuing Dr. Gran the
August 23 and September 17, 2001, letters of warning. This conduct also denied UAPD its
right to represent employees in their employment relations with the County by frustrating its
attempts to organize the unit employees, in violation of section 3503 and PERB Regulation
32603(b).
8 Speed also claimed that the two complaints he cited were corroborated by other
complaints that Dr. Gran spoke about the union during clinic hours and brought union
representatives into clinics during clinic hours. None of this clearly demonstrates that
Dr. Gran was engaging in unauthorized union activities that were disruptive to County
operations.
32

REMEDY
Pursuant to section 3509(a), the PERB under section 3541.3(i) is empowered to:
...
take any action and make any determinations in respect
of
these charges or alleged violations as the board deems necessary
to effectuate the policies
of
this chapter.
The County has retaliated against Dr. Gran because
of
his activities protected by the
MMBA, in violation
of
section 3506 and PERB Regulation 32603(a), as a result
of
issuing him
a plan
of
corrective action on October 4, 2001.	
It
is appropriate to order the County to rescind
and withdraw its plan
of
corrective action and restore Dr. Gran to the position he held before
the unlawful action. (Rancho Santiago Community College District (1986) PERB Decision
No. 602 [rescission
of
notice
of
unprofessional conduct]; Trustees
of
Boston University
v.
NLRB, supra, 548 F.2d 391, 393-394 [upholding modification
of
remedial order from
reinstatement to equivalent position in a different department to the same position despite
acknowledged personality conflict between employee and supervisor]; NLRB v. M & B
Headwear Co. (4
th
Cir. 1965) 349 F.2d 170 [59 LRRM 2829] [reinstatement
of
employee in
provocation-of-insubordination case].) This would include contacting the National
Practitioner's Data Bank and notifying it that the plan
of
corrective action was improperly
issued, as well as removing and destroying all copies
of
the plan
of
corrective action that may
be retained in County files. 	In addition, Dr. Gran incurred $20,000 or more in fees after hiring
an attorney to represent him in the proceedings before the MEC.	
It
is necessary to require the
County to reimburse Dr. Gran for his reasonable attorneys fees and litigation expenses incurred
as a result
of
having to defend his license to practice against the charges
of
malfeasance
initiated by the chair of the OB/GYN department. These proceedings would not have occurred
but for Dr. Lee's retaliatory motive. If there were issues as to Dr. Gran's medical practices,
they would have been raised, if at all, through the normal quality improvement process as
33

described by UAPD witnesses. Dr. Gran's retention
of
an attorney was reasonable under the
circumstances, and requiring him to suffer the sizeable monetary expense
of
his defense
without compensation would amount to a significant deterrent to union activities as to Dr. Gran
and others similarly situated.
In addition, the County has interfered with Dr. Gran's right to engage in activities
protected by the MMBA by issuing him the August 23, and September 17, 2001 letters
of
warning, in violation
of
section 3506 and PERB Regulation 32603(a). The appropriate remedy
is for the County to cease and desist from its interference with protected rights, to remove the
letters from Dr. Gran's personnel file, and to destroy all copies.
As a result
of
each
of
the above-described violations, the County has also denied UAPD
its right to represent employees in their employment relations with public agencies in violation
of
PERB Regulation 32603(b). The appropriate remedy is to cease and desist from such
unlawful conduct.
Finally, it is the ordinary remedy in PERB cases that the party found to have committed
an unfair practice be ordered to post a notice incorporating the terms
of
the order. Such an
order ordinarily is granted to provide employees with a notice, signed by an authorized agent
that the offending party has acted unlawfully, is being required to cease and desist from its
unlawful activity, and will comply with the order. Thus, it is appropriate to order the County
to post a notice incorporating the terms
of
the order herein at the San Joaquin General Hospital
and other clinics at which hospital physicians practice. Posting
of
such notice effectuates the
purposes
of
the MMBA that employees be informed
of
the resolution
of
this matter and the
County's readiness to comply with the ordered remedy.
34

PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it has been found that the County of San Joaquin (County) violated the Meyers-Milias-
Brown Act (Act), Government Code sections 3503 and 3506 and Public Employment Relations
Board (PERB or Board) Regulations 32603(a) and 32603(b ), 19 by retaliating against Dr. David
Gran, interfering with his right to participate in activities of employee organizations of his own
choosing, and denying Union of American Physicians and Dentists (UAPD) the right to
represent employees in their employment relations with public agencies.
Pursuant to sections 3509, subdivision (b) of the Government Code, it hereby is
ORDERED that the County, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Retaliating against Dr. David Gran by issuing a plan of corrective action
dated October 4, 2001, because of his participation in an employee organization of his own
choosing;
2. 	Interfering with Dr. David Gran's right to participate in the activities of
an employee organization of his own choosing by issuing him the August 23 and
September 17, 2001, letters of warning; and
3. 	Denying UAPD its right to represent employees by:
a. 	retaliating against Dr. Gran by imposing its plan of corrective
action; and
b. 	threatening Dr. Gran because of his participation in activities
protected by the MMBA.
19 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
35

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Within ten (10) workdays
of
service
of
a final decision in this matter,
rescind the October 4, 2001, action
of
the Medical Executive Committee adopting a plan
of
corrective action for Dr. David Gran, destroy all copies documenting such action, including
those contained in Dr. Gran's personnel file, and notify the National Practitioners Data Bank
that the referral it made in this regard should be expunged from Dr. David Gran's record.
2. 	Make Dr. Gran whole for monetary losses and losses he may have
suffered as a result
of
the referral
of
the complaint to the Medical Executive Committee,
including but not limited to the reimbursement
of
reasonable attorneys fees and litigation
expenses incurred in defending against the charges
of
physician malfeasance. This award shall
include interest at the rate
of
7 percent per annum.
3. 	Within ten (10) workdays
of
service
of
a final decision in this matter,
rescind and withdraw the letters
of
warning issued to Dr. Gran on or about August 23, and
September 17, 2001, and destroy all copies thereof.
4. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations at San Joaquin General Hospital (Hospital) and other clinics at which
Hospital physicians practice, where notices to employees customarily are posted, copies
of
the
Notice attached hereto as an Appendix. 	The Notice must be signed by an authorized agent
of
the 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. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
36

5. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the Sacramento Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
Pursuant to PERB Regulation 32305, this Proposed Decision and Order shall become
final unless a party files a statement of exceptions with the PERB itself within 20 days of
service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (PERB Regulation 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(PERB Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of PERB Regulation 32135(d), provided the filing party
also places the original, together with the required number of copies and proof of service, in
the U.S. mail. (PERB Regulation 32135(b), (c) and (d); see also PERB Regulations 32090 and
32130.)
37

Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See PERB Regulations 32300, 32305, 32140, and
32135(c).)
Administrative Law Judge
38