County of Ventura (PERB 2272M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
F
UNION OF AMERICAN PHYSICIANS &
DENTISTS,
Charging Party,
V.
COUNTY OF VENTURA,
Respondent.
Case No. LA-CE-615-M
PERB Decision No. 2272-M
June 14, 2012
Appearances: Lawrence Rosenzweig, Attorney, for Union
of
American Physicians & Dentists;
Matthew A. Smith, Assistant County Counsel, for County
of
Ventura.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the County
of
Ventura (County) to the proposed
decision
of
a PERB administrative law judge (ALJ) arising out
of
an unfair practice charge
filed by the Union
of
American Physicians & Dentists (UAPD). The complaint and underlying
charge alleged that, during negotiations for an initial memorandum
of
understanding, the
County refused to bargain with UAPD over released time and refused to provide UAPD with a
list
of
issues over which the County had authority to negotiate as a joint employer. It was
alleged that the County, by engaging 	this conduct, failed and refused to bargain in good faith
in violation
of
the Meyers-Milias-Brown Act (MMBA) 1 section 3505; interfered with the rights
of
bargaining unit employees to be represented by UAPD 	violation
of
MMBA section 3506;
and denied UAPD its right to represent bargaining unit employees in violation of MMBA
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

section 3503. It was further alleged that this conduct constituted unfair practices under
MMBA section 3509, subdivision (b) and PERB Regulation 32603, subdivisions (c), (a) and
(b).2
The Board has reviewed the entire record in this case, and given full consideration to
the issues raised on appeal and the arguments
of
the parties. Based on our review, the Board
hereby vacates the proposed decision and remands the case to the ALJ to conduct a further
expedited formal hearing on the matter. The Board directs the ALJ to develop a full and
complete evidentiary record on the jurisdictional issue
of
whether the. County is a joint
employer
of
the physician employees such that these employees may be deemed "employed
by" the County as a matter
of
law; and further directs the ALJ to make a determination on that
legal issue in a new expedited proposed decision consistent with the Board's decision herein.
This remand is ordered to ensure that there is a firm jurisdictional foundation upon which to
impose a bargaining order and any other appropriate remedy should the County be found to be
a joint employer
of
physician employees. The reasons for our decision are set forth below.
BACKGROUND AND SUMMARY OF FACTS
The County's Local Rules
Labor relations in the County are governed by Article 20, entitled Employer/Employee
Relations,
of
the County's Personnel Rules and Regulations (local rules). The pertinent
prov1s10ns are:
Sec. 2003 	Definitions:
...
K. 	Employee Organization - means any organization or union
includes employees of the County and which has as one of its primary
purposes representing such employees in their employee relations with
the County.
2
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

U. 	Public Employee and Employee - means any person employed by the
County, excepting those persons elected by popular vote or appointed to
office by the Governor
of
this State.
V. 	Recognized Employee Organization - means an employee organization
formally acknowledged by the County as representing an [sic] majority
of
employees in an appropriate unit.
Sec. 2009 	Formal Acknowledgement
of
Recognized Employee
Organizations:
...
I. 	Upon receipt
of
the aforesaid documents from an employee organization,
the Director-Human Resources shall within 30 days establish a unit
or
units based upon the criteria as set forth in Section 2008
of
this Article
and shall issue a certificate to the employee organization a copy
of
which
shall be filed with the Board, setting forth such unit or units, provided
that verification
of
the proof submitted established that a majority
of
the
employees involved have designated such employee organization to
represent them.
J.	
If
the applying employee organization or any other employee
organization desires to protect [sic] the determination
of
the Director-
Human Resources, it shall within 10 days file its protest with the
Director-Human Resources, requesting a review by the Commission.
The Director-Human Resources may request review upon his own
motion.
K. 	The Commission may sustain, modify or reverse the unit determination
of
the Director-Human Resources. It may then conduct an election in
accordance with the rules and procedures
of
the State Conciliation
Service and certify the results therein, or the matter may be returned to
the Director-Human Resources for appropriate action.
L. 	The unit or units thus certified may not be protested, modified or
decertified until the expiration
of
one year 	the date
of
the
certification.
Sec. 2012 	Modification Procedure:
A	
If
a representation unit has been established, that unit shall not be
contested for at least one year from the date
of
determination.
procedure for modifying a unit shall be the same as found in Section
2011
of
this Article [Decertification Procedure]. In the cased of a multi-
year agreement, a unit modification can only occur during the second
and subsequent years of the agreement.
3

Sec. 2013 	Withdrawal
of
Certification: The County shall not deny,
suspend, or withdraw its certificate without a showing
of
a failure to
comply with this Article and until the County has first given 30 days
notice to the recognized employee organization
of
the deficiency and has
further given it a reasonable opportunity to make any modification or
amendments or take any action that may be require [sic].
The Prior PERB Proceedings
The dispute between the County and UAPD is longstanding. It goes back five and
one-half years. The first phase
of
the dispute was the subject
of
prior administrative litigation
at PERB, which resulted in a decision
of
the Board itself in County
of
Ventura (2009) PERB
Decision No. 2067-M (Ventura I). For a full understanding
of
the issues in the instant case, the
origins
of
the parties' dispute, as gleaned from the Board's decision in Ventura
I,
are
summarized here.
On October 6, 2006, UAPD sought formal recognition under the County's local rules as
the exclusive representative for primary care physicians working at outpatient clinics operating
under contract with the County. On October 31, 2006, the County denied UAPD's request for
recognition. The County asserted that the physicians were not employed by the County, but by
the clinic operators. Under the local rules, UAPD appealed the County's decision, requesting
review by the Civil Service Commission - Board
of
Review and Appeals
of
the County
of
Ventura (Commission). The County rejected UAPD's appeal, declining to refer the matter to
the Commission for review as requested.
On December 13, 2006, UAPD filed an unfair practice charge against the County. 	On
March 19, 2007, the Office of the General Counsel issued a complaint alleging that the County
violated the MMBA by refusing to process UAPD's petition for recognition and by refusing to
process the appeal. The County answered the complaint, asserting that it was not a public
4

employer
of
the physicians. An informal settlement conference was conducted on May 2,
2007, but the parties were unable to resolve their differences. On June
12,
2007, the County
filed a motion
to
dismiss the complaint on the grounds that the County was not the physicians'
employer; the contracts between the County and the clinic operators had been revised in 2007
to reflect the same; and given that the employers
of
the physicians were private corporations,
PERB lacked jurisdiction to hear the dispute. The motion was denied by the Chief ALJ who
found that these issues were more properly reserved for formal hearing. The formal hearing
took place on October
16
and 17, 2007. On January 10, 2008, the ALJ issued a proposed
decision.
In reaching his conclusion that the County was a joint employer
of
the physicians, the
ALJ relied, in part, on contracts between the County and the clinic operators executed between
January and July 2005, approximately one and one-half years prior to UAPD's request for
recognition. In referring to the fact that the County and the clinic operators entered into new
contracts in May 2007, the ALJ found that "[t]he purpose
of
the changes in the new agreement
was to remove the sections
of
the prior agreements upon which the unfair practice charge was
filed." (Ventura
I,
supra, proposed decision, p. 14.) The new contracts were received into
evidence only to show that the parties' agreements had changed after the request for
recognition was filed, but not for the purpose
of
determining whether there had been a change
in the employment relationship between the County and the physician employees.
found:
(Ibid.)
specific changes to the 	and whether they changed
the labor relations landscape of whether VCMC [Ventura County
Medical Center] was the employer of the physicians employed at
the Clinics was irrelevant as the new agreements did not reflect
the status of the employment relationship at the time the petition
for recognition was filed with the County.
5

UAPD urged that the appropriate remedy would be to order the creation of a bargaining
unit of physicians and to order the County to recognize UAPD as the exclusive representative
of that bargaining unit. The ALJ found otherwise:
It is not appropriate to direct the County to recognize UAPD and
conduct an election as these remedies are premature. The
establishment of a bargaining unit was not litigated or set forth in
the complaint, and an appropriate unit has not been decided by
the County's own local rules. Under the legislative scheme set
forth in the MMBA and PERB Regulations, recognition, elections
and unit determinations are to be resolved according to
reasonable rules adopted by the public agency (MMBA
sections 3507(a)(3) and (4), and 3507.l(a)).
(Ventura I, supra, proposed decision, p. 20.)
The ALJ did not direct the County to recognize UAPD, but rather to process UAPD's
request for recognition under the local rules. As the ALJ found, "[b ]ecause the violation of
non-recognition occurred first, it is only logical that the remedy to that violation should be
completed before a new employment relationship is considered." (Ventura I, supra, proposed
decision, p. 19.) The ALJ also found that the County did not violate the local rules in failing to
process UAPD's appeal because the appeal procedure was limited to unit determinations, and
no unit determination had yet been made.
The proposed decision of the 	was adopted by the Board in Ventura I, which issued
on September 29, 2009. In responding to the County's exceptions objecting to the ALJ's joint
employment finding on the grounds that the new contracts entered into by the parties in May
2007 showed otherwise, the Board found:
Copies of the new contracts were admitted to show that
subsequent to the filing of the petition, the agreements had
changed. The County excepts to this ruling, arguing that the new
contracts should have been admitted as evidence of the parties
6

intent that the clinic physicians are not employees of the County.
We agree with the ALJ's finding that the new contracts do not
reflect the status of the employment relationship at the time the
petition for recognition was filed and are therefore irrelevant for
this purpose.
(Ventura I, supra, p. 4, fn. 6.)
Neither UAPD nor the County appealed the Board's decision.
The Current PERB Proceedings
Pursuant to the order of the Board, the County's Director-Human Resources (DHR)
processed UAPD's request for recognition and found that "while the UAPD had met most
touchstones required of a petition demanding recognition," the DHR could neither accurately
determine the appropriate unit nor the level of employee support. Based on those deficiencies,
the DHR denied UAPD's request for recognition. On December 9, 2009, pursuant to
Section 2009-J of the local rules, the DHR forwarded the matter to the Commission,
recommending that the Commission deny UAPD's request for recognition. 	At the January 28,
2010, business meeting of the Commission, the Commission rejected the DHR's
recommendation and ordered the DHR to accept and review a package of authorization cards
offered by UAPD.
In a letter to the Commission dated February 23, 2010, the County's Program
Management Analyst, James A. Dembowski (Dembowski), stated:
Analysis of the now (as of January 28, 2010) completed/perfected
October 2006 petition has led to the following findings:
THE BARGAINING UNIT
UAPD seeks to represent a bargaining unit comprised of
physicians employed in the County's satellite outpatient clinics.
The DHR has determined that it is appropriate to refer to the
proposed bargaining unit as the "Satellite Clinic Physicians
Bargaining Unit." The unit shall be comprised of all full and
part-time, licensed medical primary care physicians employed in
the County's satellite outpatient clinics, and over whom the
7

County exercises some authority as a joint-employer with the
owners and /or operators of the satellite clinics, as determined by
the PERB in Ruling 2067-M, excluding supervisors and
managers. 	For purposes of determining what persons and
positions are included in the bargaining unit, only the following
clinics shall be considered to have been a satellite outpatient
clinic of the County on October 6, 2006.
"APPROPRIATENESS" OF BARGAINING UNIT
As per section 2008 of the PR&Rs, and in accord with PERB
Ruling 2067-M, the "Satellite Clinic Physicians Bargaining Unit"
is an appropriate, stand-alone unit. Its "community of interest" is
based on the criteria of the incumbents being non-
supervisorial/non-managerial, full and part-time professional
licensed physicians who were "jointly employed" (as per the
above-referenced PERB Ruling) in October 2006 at the specified
outpatient satellite clinics.
SUPPORT FOR PETITION
Analysis of those cards submitted on January 28, 2010 revealed
that of the forty-three (43) submitted, only thirty-two (32) were
signed by full and part-time primary care physicians working in
2006 at the various satellite clinics contracted with the Ventura
County Healthcare Agency.... Thus, it now appears to be
evident that the October, 2006 petition by which the UAPD
attempted to demand recognition was supported by 52.5% of the
individuals in what is now considered to have been the
appropriate unit.
CERTIFICATE OF RECOGNITION
In accord with Sections 2008 & 2009 of the PR&Rs
and Section 3507.l(c) of the Meyers-Milias-Brown Act,
the Union of American Physicians and Dentists (UAPD) is hereby recognized as the
"exclusive bargaining representative" for the above-defined
"Satellite Clinic Physicians Bargaining Unit."
In light of 	foregoing, there does not appear to be any need for
further action by your Commission....
At the Commission's regular business meeting on February 25, 2010, the Commission
took up as old business the DHR's request for review of its determination on UAPD's petition
8

for recognition. The Commission acknowledged Dembowski's letter of February 23, 2010,
"indicating that the unit has been certified." UAPD's attorney was present at the meeting and
agreed to accept the County's certificate of recognition. To conclude the matter, the
Commission voted unanimously to relinquish its jurisdiction.
Soon thereafter, UAPD requested bargaining with the County, and a session was
scheduled for May 5, 2010. By e-mail of April 26, 2010, UAPD requested that Dembowski
make sure that certain physicians were released from their shifts so that they could participate
in the bargaining session. Dembowski replied that the County could not cause the physicians
to be released from their duties and that those arrangements had to be made with the clinic
operators.
The parties met for bargaining sessions on May 5, May 25, June 8 and June 15, 2010.
Very little is known about what the parties discussed at these sessions. UAPD representative
David Trujillo (Trujillo) testified that during the negotiating sessions, the County took the
position that it had no authority to negotiate any mandatory issues. Trujillo also testified that
the County did not identify the issues over which the County did have authority to negotiate.
The parties were supposed to meet again on July 29, 2010, but that bargaining session
never occurred and no further sessions were scheduled. Dembowski had sent Trujillo a letter
on July 27, 2010, which stated 	pertinent part:
At the outset, it has truly been a pleasure engaging 	dialogue
with you in the attempt to attain clarity as to what, if any,
substantive relationship may exist between the County and the
UAPD .... [,r] As you have acknowledged, these circumstances
are, indeed, unique. Nevertheless, the County has maintained that it
is not required to bargain any terms and conditions of employment
over which the County does not have control and the County has
never accepted the UAPD's assertion that PERB's ruling made the
County a joint employer for all purposes and for all time. 	[if] While
the County has met with UAPD, the County has also been assessing
the current status and relevance of the "joint employer" ruling.
PERB's decision left open the question of whether subsequent
9

changes made in the County's contracts with the clinic operators
would affect the County's current status as a joint employer
of
the
clinic physicians. In fact, the County does not have control over the
terms and conditions
of
the clinic physicians' employment. The
physicians are employed by the corporations that operate the clinics.
Control over the terms and conditions
of
employment rests with
those entities. [if] Accordingly, it is the County's position that it is
not a joint employer
of
the clinic physicians and has no duty or
authority to bargain with UAPD over the terms and conditions
of
the
Clinics' physicians' employment. 	Thus, the County will not meet
further with UAPD and will not bargain over the wages, hours,
terms and other conditions
of
employment applicable to the
physicians employed by the independent clinic owner/operators.
On June 29, 2010, UAPD filed an unfair practice charge against the County.3
The
Office
of
the General Counsel issued a complaint on July 30, 2010. The County answered the
complaint on August 24, 2010, denying that it is
"an employer
of
the physicians in the alleged
bargaining unit." After the parties were unable to settle their differences at an informal
settlement conference on August 17, 2010, PERB held a formal hearing on November 30,
2010.4 After receipt
of
post-hearing briefs, on February 4, 2011, the ALJ took the case under
The unfair practice charge was filed after the parties' bargaining session on June 15,
2010, but before the last scheduled bargaining session
of
July 29, 2010, and Dembowski's
letter
of
July 27, 2010, stating that the County was opposed to further bargaining. A copy
of
the July 27, 2010, letter was filed with PERB as a separate submission on July 30, 2010. On
November 1 	2010, UAPD filed a motion to amend the complaint to allege the County's
opposition to bargaining as communicated in Dembowski's letter.
4 On September 8, 2010, UAPD filed a motion for summary judgment and/or motion in
limine, and a memorandum
of
points and authorities in support thereof, seeking to preclude the
County from disputing either the appropriateness
of
the bargaining unit or its joint employment
status. On October 18, 2010, the County filed its response, and in support thereof also filed
(1) declarations executed by Dembowski, a clinic operator and the former deputy director
of
ambulatory care for the County's Health Care Agency; (2) copies
of
the 2007contracts; and
(3) a copy
of
an amended contract entered into in 2010. After the luncheon recess during the
formal hearing, the ALJ granted UAPD's motion in limine. The ALJ explained that, under the
County's local rules, an established unit cannot be contested for one year from the date
of
determination. 	The ALJ viewed the County's efforts to demonstrate that it was not ajoint
employer at the time of the alleged violation as an effort to modify the unit in violation
of
its
own local rules.
10

submission. 	The ALJ issued a proposed decision on August 24, 2011, which is the subjectof
this appeal.
THE ALJ'S PROPOSED DECISION
The ALJ found that by granting UAPD recognition under the County's local rules, the
County accepted the obligation to bargain in good faith under MMBA section 3505 and to
provide released time for the physicians under MMBA section 3505.3. The ALJ concluded
that the County's refusal to bargain with UAPD violated MMBA section 3505. The County's
conduct also violated MMBA section 3503, which guarantees employee organizations the right
to represent employees, and MMBA section 3506, which prohibits interference with employee
rights guaranteed under MMBA section 3502. The ALJ rejected the County's argument that it
was not a joint employer for the same reason the ALJ refused to entertain the County's
evidence on this point at the formal hearing. 	The ALJ reasoned that to entertain the County's
argument would be to allow the County to violate its own local rules prohibiting representation
unit modifications or contests for one year.
To remedy the County's refusal to bargain, the ALJ proposed: (1) a cease and desist
order; (2) an order that the County request that employees be released for bargaining; (3) an
order that the County recognize UAPD as the exclusive representative for one year from the
date of finality of the decision; (4) an order that the County post a notice; and (5) an order that
the County pay UAPD's attorney's fees and costs.
THE COUNTY'S EXCEPTIONS
The County filed exceptions to several parts of the proposed decision, which boil down
to one essential argument, i.e., the County since at least May 2007 has had no right to control
the terms and conditions of the physician's employment and therefore it is not a joint employer
and consequently has no duty to bargain under the MMBA. 	The County contends that the ALJ
11

erred in granting UAPD's motion in limine to exclude evidence bearing on the joint
employment issue. The County also excepts to the one-year duration
of
the recognition order
as
violating the local rules; the order requiring the County to pay UAPD's attorney's fees as
unwarranted under PERB precedent; and the order requiring the County to request released
time given the County's lack
of
control over the terms and conditions
of
the physicians'
employment.
U APD' S RESPONSE
UAPD takes no exception to the proposed decision. Because the County did not appeal
the Board's decision in Ventura I and chose to recognize UAPD under the County's local rules,
UAPD argues that the County's joint employer status as determined by the Board in Ventura I
cannot be re-litigated and obligates the County to bargain. 5
DISCUSSION
PERB Jurisdiction
The analysis
of
the ALJ and the arguments
of
the litigants address legitimate concerns
raised by the unique labor relations issues and procedural history
of
this case. The ALI' s
concern is that, given the County's claim that it is not a joint employer, the County's
recognition
of
UAPD as the exclusive bargaining representative
of
the physician employees
was misleading and nothing more than a "sham" perpetrated by the County on the
Commission. The 	s solution is to apply the local rule governing 	modification, which
prohibits parties from contesting an established unit for one year from the date of
5 UAPD also asserts that the County's exceptions are based 	part on facts not
contained in the record and that the County did not except to several key findings in the
proposed decision. Neither extra-record evidence nor exceptions never before raised have
been considered on appeal. Only matters contained in the record are before the Board (PERB
Reg. 32300, subd. (b)); and exceptions not specifically urged are waived (PERB Reg. 32300,
subd. (c)).
12

determination. The ALJ includes the County's dispute over its joint employment status as a
"contest" so prohibited thereunder.
For UAPD's part, it sought recognition from the County in 2006 and the parties have
been at a virtual standstill ever since as the parties have been engaged in administrative
litigation and Board review. When the opportunity for collective bargaining arose,
negotiations petered out before they ever left ground. UAPD's solution is to hold the County
to the joint employer determination made by the Board in Ventura I because the County never
challenged Ventura I in court and instead formally recognized UAPD without advising the
Commission of its objections.
For the County's part, by its certification of UAPD, it believed it was merely
complying with the Board's directive in Ventura I to "process the petition." The County did
not challenge Ventura I in court because it was willing to accept that it was a joint employer as
a matter oflaw as of the date UAPD requested recognition on October 6, 2006. During the
administrative litigation of both PERB charges that followed, the County's attempts to
establish that it was no longer a joint employer were defeated. The County's solution is to
resist collective bargaining by further arguing this point.
While we are cognizant of the various concerns as summarized above, we see the issue
presented here as whether PERB has jurisdiction, not whether the County is in compliance
local rules governing representation matters like unit modification.6 the County is
a "public agency" within the meaning of MMBA section 3501, subdivision (c ), a further
jurisdictional question is whether 	employees are "employed by" 	County
We note, however, that the County's local rules are in conformity with the MMBA on
the jurisdictional issue presented here. 	Compare MMBA section 3501, subdivision (d), which
defines "[p ]ublic employee" to mean "any person employed by any public agency" with the
County's iocai rules, section 2003, subdivision (U), which defines "[p]ublic [e]mployee and
[e]mployee" to mean "any person employed by the County."
13

within the meaning
of
MMBA section 3501, subdivision (d). The answer turns on whether the
County exercises sufficient control as a joint employer over the physician employees at the
satellite clinics on negotiable matters, i.e., wages, hours and other terms and conditions
of
employment. 7
We recognize that this very question was answered in Ventura
I.	
We also recognize
that the Board in Ventura I made clear that the limited issue before the Board was whether the
County was obligated to process UAPD's request for recognition, which turned on the legal
status
of
the employment relationship between the County and the physician employees at a
fixed point in time, i.e., October 6, 2006, the date the request for recognition was filed. In
other words,
if
a bona fide change in the employment relationship had occurred subsequent to
the filing
of
the request, it was not relevant to that determination. The ALJ in Ventura I
explicitly contemplated the possibility that PERB might one day be required to revisit the
employment relationship issue in concluding that "[b ]ecause the violation
of
non-recognition
occurred first, it is only logical that the remedy to that violation should be completed before a
new employment relationship is considered." ( Ventura
I,
supra, proposed decision, p. 19.)
The issue here is whether the physician employees are "employed by" the County as a
matter
of
law.
	If
answered in the affirmative, PERB has jurisdiction to impose a bargaining
order and any other relief deemed necessary to effectuate the purposes
of
the MMBA.
	If
answered in 	negative, it must be concluded that 	has no jurisdiction to decide the
issues raised by the unfair practice charge. 	While ordinarily we would prefer an approach that
resolves rather than prolongs the parties' dispute, the circumstances
of
this case are
See Fresno Unified School District (1979) PERB Decision No. 82. There, employees
of
a private company that contracted to provide transportation services to the school district
were not "public employees" within the meaning of the Educational Employment Relations
Act (codified at§ 3540, et seq.) and therefore PERB had no jurisdiction over the claims.
14

Joint employment relationships between public and private entities are inherently complex and
may be subject
to
change; and, to add to the complexity,
of
the two "joint employers" only one
falls within PERB' s MMBA jurisdiction.8
By this decision, we
do
not condone the County's actions. The County indubitably
compounded the problem by not appealing Ventura
I,
thereby choosing not to avail itself
of
the
opportunity to present its argument that it was
no
longer the joint employer
of
the physician
employees at the satellite clinics. Instead, the County chose to certify UAPD, thereby creating
a set
of
expectations that the County was prepared to bargain over matters within the scope
of
representation for which it had control.
We think it unwise, however, to compound the problem any further by overlooking the
opportunity to resolve doubt concerning PERB 's jurisdiction to proceed. Should UAPD
prevail on remand, any bargaining and/or other appropriate orders issued by PERB will enjoy a
firm jurisdictional foundation. 	Conversely, should the County establish on remand that a joint
employer relationship no longer exists, a PERB order relieving it
of
the obligation to bargain
will be supported by competent evidence in the record. 	To address UAPD's concern that there
is nothing to stop the County from repeatedly raising this issue with PERB in the future, we
closely will examine those circumstances should they materialize to ensure there has been no
litigation conduct constituting an abuse
of
process.
Technical Refusal to Bargain
In opposing the County's exceptions, UAPD relies on a line of Board decisions
involving unit determination challenges raised 	to bargain charge. 	In
We note that there is a federal-law regulatory scheme similar to the MMBA governing
private sector labor relations. See National Labor Relations Act (NLRA) codified at United
States Code, title 29, section 151 et seq. 	We express no opinion, however, as to the specific
applicability of the NLRA to this case.
15

those cases, employers cited to decisions
of
the National Labor Relations Board (NLRB) and
the Agricultural Labor Relations Board in support
of
their contention that an employer may
engage in a "technical refusal to bargain" as an alternative means
of
challenging the
composition
of
a certified unit. 	(The Regents
of
the University
of
California (1989) PERB
Decision No. 722-H.) Technical refusal to bargain proceedings developed under the federal
labor relations scheme because unit determinations made by the NLRB are generally not
subject to direct judicial review; by engaging in a technical refusal to bargain, the employer
can obtain judicial review
of
the unit determination through its defense
of
the unfair labor
practice charge. (See, e.g., Boire
v.
Greyhound Corp. (1964) 376 U.S. 473.)
The Board has held that a technical refusal to bargain cannot be used as a means to
challenge the parameters
of
a bargaining unit. Where an employer has engaged in such a
tactic, the Board will not make any factual findings on the unit configuration issues as part
of
the unfair practice proceeding, and the challenged unit determination remains binding on the
parties. The Board rationale is that unit modification is more appropriately accomplished
either by agreement
of
the parties or through unit modification procedures. (Los Angeles
Unified School District (2007) PERB Decision No. 1884.)
The circumstances
of
this case are distinguishable. The County is not seeking to
modify the bargaining unit nor does it challenge the composition
of
the bargaining unit in
any other way. Moreover, in contrast to a unit modification dispute, a jurisdictional dispute
can neither be resolved by agreement of the parties nor by a representation proceeding.
(North Orange County Regional Occupational Program (1990) PERB Decision No. 857
[where 	is without jurisdiction, jurisdiction cannot be acquired by the parties' consent,
agreement, stipulation or acquiescence, or by waiver or estoppel].) By requiring the ALJ in
this matter to resolve a jurisdictional challenge, we do not disturb the validity or vitality of the
16

cases cited by UAPD in which a technical refusal to bargain was used
as
a tactic to challenge
the composition
of
the bargaining unit in an unfair practice proceeding.
Moreover, were we to apply Board precedent developed in cases involving unit
modification disputes, we find the more analogous precedent to be the "changed
circumstances" line
of
cases. In those cases, the Board was called upon to determine whether a
change in circumstances was sufficient to warrant a variation in a previously established unit.
The Board has held that "parties have the right to relitigate representation matters by
demonstrating a change in circumstances." (Regents
of
the University
of
California (1995)
PERB Order No. Ad-269-H, citing Regents
of
the University
of
California (1986) PERB
Decision No. 586-H; Regents
of
the University
of
California (Lawrence Livermore National
Laboratory) (1993) PERB Decision No. 974-H; Regents
of
the University
of
California (1993)
PERB Decision No. 993-H.)
Here, the County asserts that there was a change in the County's employment
relationship with the physician employees at the satellite clinics subsequent to UAPD's request
for recognition in 2006. Applying the logic
of
the "changed circumstances" line
of
cases, the
ALJ here would consider whether the asserted change in circumstances warrants an
affirmance, modification or reversal
of
the joint employment determination rendered by the
Board in Ventura
I.	
As expressed above, the unique circumstances
of
this case lead us to the
conclusions reached herein, and, while there is no Board precedent directly on point, neither is
there any Board precedent that compels us to conclude otherwise.9
See, for example, Los Angeles Unified School District/Lynwood Unified School
District (1982) PERB Order No. Ad-132 (LA USD), which involved the issue whether two
SEIU locals were the same employee organization for purposes of determining whether one of
the locals could seek representation of supervisory classified employees when the other already
represented certain units of rank and file classified employees. The identical issue had been
raised in another matter in which the Board's finding that the same two entities were not the
same employee organization was overturned by the court. On remand from the court of
17

Joint Employment
The legal issue to be determined on remand is whether the County is a joint employer
of
the physician employees at the satellite clinics. A "joint employer" situation arises "where
two or more employers exert significant control over the same employees - where from the
evidence it can be shown that they share or co-determine those matters governing essential
terms and conditions
of
employment." (Ventura County Community College District (2003)
PERB Decision No. 1547 (Ventura County CCD); United Public Employees
v.
Public
Employment Relations Bd. (1989) 213 Cal.App.3d 1119, 1128 citing to National Labor
Relations Board
v.
Browning-Ferris Industries, Inc.
(3
rd
Cir. 1982) 691 F.2d 1117, 1124; see
also Plumas Unified School District
and
Plumas County Superintendent
of
Schools (1999)
PERB Decision No. 1332 Ooint employer relationship found where two employers share in the
control
of
labor relations and working conditions
of
employees].)
The joint employer analysis is focused on the relationship between the County and the
physician employees at the satellite clinics. Specifically, the question is whether the County
retains the right to "control both what shall be done and how it shall be done." 	(Service
Employees International Union
v.
County
of
Los Angeles (1990) 225 Cal.App.3d 761.)
"The essential characteristic
of
employment relationship is the right to control and direct the
activities
of
the persons rendering service, or the manner and method in which the work is to
be performed." (Ibid.)
appeal, and consistent with the ruling of the court of appeal, the Board held that "on the facts
of that case, and as
of
the date
of
the original decision (3/25/80), the Local and Local 99 were
the same employee organization" (underlining omitted). In LA USD, the district argued that the
court's (unpublished) ruling in the other matter was conclusive as to the "sameness" of the two
locals based on principles of collateral estoppel and res judicata and therefore re-litigation of
that issue should be barred. The Board disagreed, holding that a "former judgment on an
identical issue is not res j udicata if
the factual relationship of the parties changes in a relevant
way between the date of the first judgment and the relevant period of the second action."
18

The County appears to place emphasis on new contracts executed with the clinic
operators in 2007, which, as the County argues, clarify that the physician employees are not
"employed by" the County. The joint employment control test, however, requires
consideration of much more than just the contracts, and the Board is not bound solely by
contract language in determining the level of control exercised by the public agency over the
employee. Relying on Ventura County CCD, the Board in Ventura I stated that when
determining whether certain individuals are employees of a public agency, the Board "is not
bound by the agency's intent, nor by declarations made in contracts between the agency and a
third party." The Board went on to conclude that "the County cannot unilaterally circumvent
the rights guaranteed to its employees by the MMBA through the provisions of a contract with
the clinic medical directors."
As the Board in Ventura I stated, that the contracts set forth obligations assumed by the
clinic operators in their relationship with the County "does not preclude the determination that
the County retains power over the physicians as employees." The Board in Ventura I
explained as follows:
The Board in Ventura, supra, [referring to Ventura County CCD]
acknowledged the distinction between the reservation of the right
to control the result sought, and the right to control the manner
and means by which this result is accomplished ([ Ventura County
CCD] citing News Syndicate Co., Inc. (1967) 164 NLRB 422).
The Board determined that when an agency retains the right to
control 	manner and method in which 	work is performed,
that agency retains its status as an employer.
In Ventura I, the Board's conclusion that the County was a joint employer as a matter
of law was based on factual findings 	ALJ that the County retained and exercised control
over the manner and method in which the work was performed by the physician employees.
19

The factual findings covered areas such
as
hiring practices, review
of
individual employment
agreements, salaries and specialty pay, time base reduction, discipline, restrictions regarding
patient care and operational policies such as fees and dress code. 	On remand, this list should
not be considered exhaustive but rather a starting point from which to develop a full and
complete evidentiary record on the question
of
control. Other areas with possible relevance
include supervision, training and personnel policies.
When deciding whether the County is a joint employer, the record is to be examined in
light
of
the statutory language and purposes
of
the MMBA.	
If
there is not sufficient control
over negotiable subjects there can be no joint employer finding and that would excuse the
County from bargaining obligations under the MMBA.
If
there is sufficient control, the
County's refusal to bargain will be deemed a per se violation
of
its duty to meet and confer in
good faith under MMBA section 3505 and appropriate remedies will be ordered. (See, e.g.,
Sierra Joint Community College District (1981) PERB Decision No. 179 [the district's
categorical refusal to negotiate released time violated duty to bargain].)10
The Bargaining Obligation May Be Limited by Joint Empioyer Status
The County is correct that, even as a joint employer, its bargaining obligations might be
limited. ( United Public Employees
v.
Public Employment Relations Bd. (1989) 213
Cal.App.3d 1119 ( United Public Employees).)
If
it is determined that the County is a joint
employer, a well-developed evidentiary record 	greatly aid the 	in determining the
County's bargaining obligations, including the issue raised by UAPD in the unfair practice
· 	When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting NLRA and California labor relations statutes with parallel provisions. (Fire
Fighters Union
v.
City of Vallejo (1974) 12 Cal.3d 608.)
20

charge over released time. In United Public Employees, the court found that the San Francisco
Community College District and the City and County
of
San Francisco were joint employers
of
classified employees who worked in the district. In terms
of
the joint employers' respective
bargaining obligations, the court in United Public Employees held:
Our conclusion that the City and the District are joint employers
will not affect the status quo. The Union will continue to bargain
with the District over those matters in which the District exerts
authority and control, and with the City over the areas within its
purview.
(Id. at pp. 1131-1132.)
Under the unusual circumstances presented here, where the County's bargaining
obligations would be limited to only those negotiable matters over which the County
exercises control and where only the County is subject to PERB' s jurisdiction, we recognize
there may be hurdles to finding common ground and reaching agreement. The bargaining
obligation, however, only requires that the parties "try to agree on matters within the scope
of
representation." (Los Angeles County Civil Service Com.
v.
Superior Court (1978)
23 Cal.3d 55, 61-62; italics added.) As the NLRB has stated regarding bargaining obligations
in a joint employment setting:
In our view, it is for the parties to determine whether bargaining
is possible with respect to other matters and, in the final analysis,
employee voters will decide for themselves whether they wish to
engage in collective bargaining under those circumstances.
(Management Training Corp. (1995) 317 NLRB 1355.)
ORDER
Upon the foregoing discussion and the record as a whole, the Public Employment
Relations Board VACATES the proposed decision of the administrative law judge (ALJ) in
21

Case No. LA-CE-615-M and REMANDS the case to the ALJ to conduct a further expedited
formal hearing and issue a new expedited proposed decision consistent with this Decision.
Members Dowdin Calvillo and Huguenin joined in this Decision.
22