County of Santa Clara (PERB 2613M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA COUNTY CORRECTIONAL
PEACE OFFICERS’ ASSOCIATION,
Charging Party,
v.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-1339-M
PERB Decision No. 2613-M
December 21, 2018
Appearances: Mastagni Holstedt APC by Jeffrey R.A. Edwards, Carl C. Larson, and David L.
Kruckenberg, Attorneys, for Santa Clara County Correctional Peace Officers’ Association;
Cheryl A. Stevens, Deputy County Counsel, for County of Santa Clara.
Before Winslow, Banks and Shiners, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the County of Santa Clara (County) to a proposed decision
of an administrative law judge (ALJ). 	The County excepts to the ALJ’s conclusion that it
violated the Meyers-Milias-Brown Act (MMBA)1 when, upon placing the president of the
Santa Clara County Correctional Peace Officers’ Association (CPOA or Association) on
administrative leave pending an internal affairs investigation, the County directed him to
refrain from discussing the allegations against him with other employees of the Sherriff’s
Department.
The Board itself has reviewed the record in its entirety and considered the County’s
exceptions and CPOA’s responses thereto. Based on that review, we affirm the ALJ’s legal
1 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

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conclusion that the County violated the MMBA when it directed the CPOA president, Lance
Scimeca (Scimeca), not to discuss the allegations against him with various individuals,
including his co-workers, in accordance with our discussion of the County’s exceptions.2
FACTUAL SUMMARY
At all times relevant to this case, Scimeca was the president of the CPOA, a position to
which he was elected in 2012. In this capacity, he was the lead negotiator for the Association,
and routinely met with employees in their workplace during their respective break time in
order to respond to their concerns and answer questions.
CPOA has an office in San Jose that is staffed only by one full-time administrative
employee who is not a bargaining unit member. No CPOA members have release time from
the County to act as union representatives.
In August 2015, the parties were negotiating a successor Memorandum of
Understanding (MOU) and reached a tentative agreement sometime in mid-September. During
this time the County initiated two investigations into workplace misconduct, the most
notorious of which focused on the death of an inmate at the Elmwood Facility who had
allegedly been beaten to death by correctional deputies. The other investigation focused on
Scimeca and two other deputies concerning allegations unrelated to the inmate’s death. The
record is silent as to the nature of the allegations against Scimeca, other than that they
concerned alleged violations of workplace communications policies.
2 The ALJ also concluded that the Association failed to prove that the County violated
the MMBA when it placed the CPOA president on administrative leave, or when it gave him
other directions to stay away from the workplace during that leave. Neither party has excepted
to these conclusions. Therefore they are not before the Board and the ALJ’s conclusions
regarding these issues are binding only on the parties. (PERB Regulations 32215, 32300,
subd. (c). [PERB Regulations are codified at California Code of Regulations, title 8, section
31001, et seq.].)
2

On September 17, 2015, the Sheriff placed Scimeca on “Administrative Leave With
Pay” and directed him not to return to work until further notice and to stay away from the
Sheriff’s Office property and functions, unless specifically directed by a captain to enter or
attend. The part of the letter relevant here, Paragraph 6, reads:
6. You are hereby ordered not to discuss this matter with any
witnesses, potential witnesses, the complainant, or any other
employee of the Sheriff’s Office other than your official
representative.
CPOA objected to the scope of the September 17 letter, complaining in writing to the
County that it prevented Scimeca from meeting with members in the workplace, and from
attending meet-and-confer sessions and other negotiations with the County when those
sessions were held on County property. Undersheriff John Hirokawa (Hirokawa) responded by
letter to Scimeca dated September 23, 2015, clarifying the terms of Scimeca’s administrative
leave. That letter reads, in pertinent part:
While you are on paid administrative leave you may continue to
engage in union activities including but not limited to discussing
union matters with CPOA members; representing CPOA
members in any disciplinary proceedings, participating in meet
and confer sessions with the County and the Department;
participating in contract negotiations; meeting with CPOA
members regarding contract negotiations or other matters related
to anything discussed in a meet and confer session.
Unchanged by Hirokawa’s letter was the directive contained in Paragraph 6. Hirokawa
testified that it was standard practice in the Sheriff’s Office to separate witnesses from officers
that are under investigation to prevent “collaboration and tainting of the witnesses or the
subject officers.” Individuals who, like Scimeca, are placed on administrative leave pending
an investigation for alleged misconduct are all given the same directive contained in
Paragraph 6.
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PROPOSED DECISION
Relying on both private sector case law developed under the National Labor Relations
Act and PERB’s own precedential decisions, the ALJ observed that “a workplace rule that
infringes on [the right of employees to discuss with each other working conditions] may be
valid only where the employer demonstrates a legitimate and substantial business
justification.”
The ALJ found that Paragraph 6 of the September 17 directive, the so-called “gag
order,” restricted Scimeca’s right to communicate with his fellow employees concerning
working conditions, namely the “matter” that caused the Sheriff’s Office to place him on
administrative leave. According to the ALJ, because the harm suffered by Scimeca was
“comparatively slight,” the burden shifted to the County to establish substantial and legitimate
business justification for its directive in Paragraph 6.
The County argued to the ALJ that Paragraph 6 was justified because management
needed to: (1) ensure the investigation was free from improper collusion or coercion by the
subject employee; and (2) treat all employees the same with respect to restrictions when it
conducts an investigation into misconduct. The County also asserted that the order was
necessary because the environment in which correctional deputies work is dangerous with real
threats of violence. The ALJ rejected these justifications because they articulated only general
concerns unconnected with the particular investigation of Scimeca. There were no facts
indicating that the safety of inmates or employees was compromised by his alleged
misconduct, or that he abused inmates or abused his position or intimidated his coworkers or
inmates. The ALJ concluded: “In short, the County gives very little beyond its own
characterization of the conduct as egregious to warrant denying Scimeca his right to meet and
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confer with coworkers about working conditions. The same generalized concerns were
rejected by the Board in Los Angeles Community College District [(2014)] PERB Decision
No. 2404” (Los Angeles CCD).
The ALJ further noted that the County had the opportunity to present more specific
justification for why Scimeca needed to be subject to Paragraph 6 by disclosing the nature of
the allegations against him, either on the record or in camera before the ALJ. It did not do so,
which in the ALJ’s opinion “left PERB without any quantifiable factual evidence that the
County had substantial and legitimate business justification for imposing its broad directives.”
Because the County failed to meet its burden, the ALJ ruled that it violated the MMBA by
restricting Scimeca’s right to discuss with his coworkers working conditions, including the
County’s pending investigation of his alleged misconduct. The ALJ also concluded that
Paragraph 6 interfered with the Association’s right to represent its members because it
restricted employees other than Scimeca from discussing working conditions with each other,
and therefore independently violated the MMBA.
To remedy these violations the ALJ ordered the County to cease and desist from
interfering with Scimeca’s rights under MMBA section 3502 and with CPOA’s rights under
MMBA section 3503, and to rescind Paragraph 6 of the September 17, 2015 directive to
Scimeca and other employees.
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DISCUSSION3
The County’s exceptions to the proposed decision set forth three arguments:
(1) Paragraph 6 did not prohibit Scimeca from performing his duties as Association president
or from discussing working conditions with unit members; (2) the County was prohibited from
establishing the business justification called for because of statutorily established privacy
rights applicable to peace officers that Scimeca refused to waive; and (3) Paragraph 6 did not
prohibit Scimeca from talking to any “official representative” including a co-worker. We
reject each of these arguments for the reasons that follow.
Before turning to the merits, we call to the County’s attention PERB Regulation 32300,
which requires the statement of exceptions to identify the page or part of the decision to which
each exception is taken, state the grounds for each exception, and to designate by page or
exhibit number the portions of the record, if any, relied on for each exception. (PERB Reg.
32300, subd. (a).) Compliance with the regulation is required to afford the responding party
and the Board an adequate opportunity to address the issues raised. (Temecula Valley Unified
School District (1990) PERB Decision No. 836, pp. 2-3.) Failure to comply with this
regulation can result in dismissal of the exceptions without review of the merits of the
excepting party’s claims. (See California State Employees Association (O’Conell) (1989)
PERB Decision No. 726-H, p. 3.)
Despite referring to matters it implies are in the record, such as its “legitimate business
reasons” for the directive in Paragraph 6, the County fails to cite to any portion of the record in
3 The Association has requested oral argument in this case. The Board typically denies
such requests when an adequate record has been prepared, the parties had ample opportunity to
present briefs and have availed themselves of that opportunity, and the issues before the Board
are sufficiently clear as to make oral argument unnecessary. (Antelope Valley Health Care
District (2006) PERB Decision No. 1816-M; Arvin Union School District (1983) PERB
Decision No. 300.) Because these criteria are met here, we deny the request for oral argument.
6

its exceptions. The exceptions also fail to address the central legal issue raised in this case,
viz., whether Los Angeles CCD, supra, PERB Decision No. 2404, applies to public safety
officers and their employers. The proposed decision relied heavily on Los Angeles CCD, yet
the County’s exceptions make no attempt to distinguish it from the facts here, or explain why
our holding in Los Angeles CCD should be overruled. Indeed, the exceptions fail to mention
this case at all. This lapse is particularly puzzling, since the County did discuss the case in its
closing brief to the ALJ, asserting that the conditions placed on Scimeca were in no way
similar to those in Los Angeles CCD. Given the County’s failure to advance this argument in
its exceptions, we conclude that it has abandoned its argument that Los Angeles CCD is
distinguishable from the instant matter. (See PERB Regulation 32300, subd. (c): an exception
not specifically urged is waived; Dieckmeyer v. Redevelopment Agency of Huntington Beach
(2005) 127 Cal.App.4th 248, 260 [“An appellant’s failure to raise an argument in its opening
brief waives the issue on appeal”].)
Despite the County’s deficient exceptions, we acknowledge the public policy favoring
hearing cases on their merits, notwithstanding technical non-compliance with matters of form.
(United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912,
916.) Because of the important issue this case raises, we exercise our discretion to address the
merits.
Prima Facie Case Establishing Interference with Protected Rights
The MMBA forbids an employer from interfering with employees’ exercise of their
rights guaranteed by the MMBA, including the right to form, join, and participate in the
activities of employee organizations of the employees’ own choosing. (MMBA, § 3502.) It is
also unlawful for an employer to deny employee organizations the rights guaranteed to them by
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the MMBA, including the right to represent their members. (MMBA, §§ 3506.5, subd. (b);
3503.)
PERB’s framework for analyzing allegations of unlawful interference is well-settled.
“A prima facie case of interference is established by allegations that an employer’s conduct
tends to or does result in some harm to employee rights under our statutes.” (Jurupa Unifieid
School District (2012) PERB Decision No. 2283, p. 7, citing Carlsbad Unified School District
(1979) PERB Decision No. 89 (Carlsbad).) “If the harm to protected rights is slight and the
employer offers justification based on operational necessity, the competing interests are
balanced. [Citations.] If the harm to employee rights outweighs the asserted business
justification, a violation will be found. [Citation.]” (Cabrillo Community College District
(2015) PERB Decision No. 2453, pp. 13-14.) Where the employer’s conduct is inherently
destructive of protected rights, it will be excused only on proof that it was caused by
circumstances beyond the employer’s control and that no alternative course of action was
available. (County of San Bernardino (Office of the Public Defender) (2015) PERB Decision
No. 2423-M, pp. 36-37.)
As we observed in Los Angeles CCD, supra, PERB Decision No. 2404, there is “no
more fundamental right afforded employees under the statutory scheme than the right to
communicate with others about working conditions.” (Id. at p. 11, fn. 5.) “Working
conditions” include the circumstances underlying and surrounding an investigation into alleged
employee misconduct. (Id. at pp. 11-12; Caesar’s Palace (2011) 336 NLRB 271, 272; see City
of Davis (2016) PERB Decision No. 2494-M, pp. 29-31 [procedures for discipline are within
scope of representation]; Valencia v. County of Sonoma (2007) 158 Cal.App.4th 644 [employer
is bound by MOU provisions concerning discipline].)
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On its face, the directive in Paragraph 6 of the September 17, 2015 letter prohibited
Scimeca from communicating with his co-workers about the matter for which he was being
investigated. He thus was prevented from contacting potential witnesses, or from making other
inquiries that could help him prepare for his investigatory interview. This, in turn, prevented
him from giving effective assistance to CPOA in its representation of him in the investigation.
Additionally, Scimeca’s inability to assert his innocence to Association members during the
investigation could potentially have eroded members’ confidence in union leadership, and
thereby potentially compromised the organizational capacity and effectiveness of the
Association. Thus, the directive in paragraph 6 tended to result in some harm to Scimeca’s
right to discuss working conditions with fellow employees, as well as the Association’s right to
communicate with employees under investigation and therefore with its right to represent
employees.4
We thus conclude that CPOA established a prima facie case that the County interfered
with protected rights when it issued the “gag” rule contained in Paragraph 6. We turn then to
consider whether the County established a legitimate defense.
The County’s Business Necessity Defense
Because the Association established a prima facie case of interference, the County was
required to provide a legitimate justification for the directive in paragraph 6. (Cabrillo
Community College District, supra, PERB Decision No. 2453, p. 13.) We have previously
addressed this requirement in a similar situation. In Los Angeles CCD, supra, PERB Decision
No. 2404, the employer placed an employee on administrative leave pending a fitness-for-duty
4 Because we conclude, infra, that the County failed to offer any legitimate justification
for its directive, it is unnecessary to determine whether the harm was slight or inherently
destructive.
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examination and directed him in the meantime to have no contact with faculty, staff or
students. As in this case, the community college district routinely issued this directive to
employees placed on administrative leave or who were under investigation. In assessing
whether this directive violated EERA, the Board relied on the decision of the National Labor
Relations Board (NLRB) in Banner Health System (2012) 358 NLRB 809, 810, which held:
To justify a prohibition on employee discussion of ongoing
investigations, an employer must show that it has a legitimate
business justification that outweighs employees’ Section 7 rights.
See Hyundai America Shipping Agency, 357 NLRB No. 80, slip
op. at 15 (2011) (no legitimate and substantial justification where
employer routinely prohibited employees from discussing matters
under investigation). . . . [W]e find that the Respondent’s
generalized concern with protecting the integrity of its
investigations is insufficient to outweigh employees’ Section 7
rights. Rather, in order to minimize the impact on Section 7
rights, it was the Respondent’s burden “to first determine whether
in any give[n] investigation witnesses need[ed] protection,
evidence [was] in danger of being destroyed, testimony [was] in
danger of being fabricated, or there [was] a need to prevent a
cover up.” Id. The Respondent’s blanket approach clearly failed
to meet those requirements. Accordingly, we find that the
Respondent, by maintaining and applying a rule prohibiting
employees from discussing ongoing investigations of employee
misconduct, violated Section 8(a)(1) of the Act.
(Emphasis added.) Because the directive in Los Angeles CCD was vague and overbroad, and
the employer offered no explanation as to why or whether confidentiality was necessary to
preserve the integrity of the employer’s investigation or any other justification for the rule, the
Board concluded that the employer failed to carry its burden under Carlsbad, supra, PERB
Decision No. 89, to show business necessity.
The County asserts in its exceptions that it was unable to fully explain the rationale
behind Paragraph 6 “because the employee, Scimeca, refused to waive the privacy rights
unique to peace officers, thus tying the County’s hands and preventing the County from fully
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explaining the significance and importance of Paragraph 6 in this case.” We reject this defense
for multiple reasons.
First, this argument was not raised before the ALJ, despite the fact that the County was
on notice that neither CPOA nor Scimeca intended to waive his privacy rights in the PERB
administrative hearing. CPOA also asserted in the administrative hearing its view that the
County was required to pursue the Pitchess process5 in order to bring to the ALJ’s attention
evidence relating to Scimeca’s personnel file, including the accusations against him and details
of the County’s investigation of his alleged misconduct. The County also was aware of
PERB’s decision in Los Angeles CCD because it argued in its closing brief to the ALJ that the
decision did not apply to the facts here. Yet the County’s closing brief did not raise the
argument that Scimeca’s privacy rights prevented the County from presenting more specific
reasons justifying the “gag’” rule, and the hearing record reveals no attempt to bring this
asserted conundrum to the ALJ’s attention.
As we recently explained in Los Angeles County Superior Court (2018) PERB Decision
No. 2566-C, asserting an argument for the first time before the Board itself “wastes the parties’
time and resources, and deprives the Board of the benefits of the ALJ’s expertise.” (Id. at
pp. 12-13.) Under such circumstances, we would be justified in refusing to consider the merits
of this exception. Yet, as stated earlier, we choose to address the merits of this important
issue, namely whether the rule established in Los Angeles CCD requiring an employer to
provide a case-specific “legitimate and substantial business justification” for a directive not to
5 Named for Pitchess v. Superior Court (1974) 11 Cal.3d 531, this refers to a motion
pursuant to Evidence Code section 1043, which requires “the party seeking . . . disclosure [of a
confidential peace officer personnel file to] file a written motion with the appropriate . . .
administrative body.”
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discuss an ongoing investigation applies to public safety employers, and to explain why we
reject the County’s argument in this instance.
Just as in Los Angeles CCD, the County had a generalized “gag” rule that was not
uniquely applied to Scimeca. The Undersheriff himself testified that the “gag” rule of
Paragraph 6 was routinely issued to employees who were placed on investigatory
administrative leave. Use of this generalized and routine order indicates that the County had
no particular reason for directing Scimeca not to communicate with his co-workers about the
“matter” of his administrative leave. Therefore, whether Scimeca refused to waive his privacy
rights is irrelevant because the County did not assess whether the allegations against him
merited the directive contained in Paragraph 6.
Even if there were facts unique to the investigation of Scimeca’s conduct that would
justify the “gag” order, the County made no attempt to present those facts to the ALJ. As a
custodial officer, Scimeca is protected by the Public Safety Officers Procedural Bill of Rights
Act (POBRA)6 and Penal Code section 832.7,7 which prohibits the disclosure of peace officer
personnel records unless a motion for disclosure is approved by a judicial or administrative
tribunal. Scimeca did not waive his protections under these statutes during the administrative
hearing.
But the County was not without recourse in the face of Scimeca’s refusal to waive his
privacy rights. The CPOA asserts in its response to the County’s exceptions that the County
could have filed a motion pursuant to Evidence Code section 1043, popularly known as a
6 The POBRA is codified at section 3300, et seq.
7 Penal Code section 832.7 provides in pertinent part that peace officer or custodial
officer personnel records are confidential and may not be disclosed in any criminal or civil
proceeding unless a motion is made pursuant to Evidence Code section 1043.
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Pitchess motion. Evidence Code section 1043 requires “the party seeking . . . disclosure [of
peace or custodial officer personnel records to] file a written motion with the appropriate . . .
administrative body.” (Evid. Code, § 1043, subd. (a).) Upon such a motion, the administrative
body must hold an in camera hearing to determine the relevance of the material sought and,
upon a finding of relevance, permit disclosure of the relevant information. (Evid. Code,
§ 1045, subd. (b).) When such disclosure is permitted, the administrative body must order that
the disclosed records not be used for any purpose other than the immediate proceeding. (Evid.
Code, § 1045, subd. (e).)
There is no doubt after the California Supreme Court’s decision in Riverside County
Sheriff’s Department v. Stiglitz (2014) 60 Cal.4th 624, that a Pitchess motion may be filed with
an administrative body and that administrative hearing officers are authorized to rule on such
motions. (Id. at p. 628.) Less clear is whether the custodian of the records in question must
file a Pitchess motion as a prerequisite to presenting the protected information in a hearing to
which it is a party.8 But nothing in PERB’s regulations expressly prohibited the County from
moving for an in camera inspection by the ALJ of documents and/or moving to have certain
testimony and evidence sealed in order to protect Scimeca’s privacy rights.9 (See § 11425.20,
subd. (a)(1) [permitting an administrative hearing officer to issue “protective orders to the
extent necessary and proper” to prevent public disclosure of information protected from
8 The vast majority of judicial decisions regarding Evidence Code section 1043 involve
attempts by third parties such as criminal defendants, civil plaintiffs, or the press, to obtain
police personnel files. (See, e.g., Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272
(newspaper seeking access to civil service disciplinary proceedings against police officer).
9 The County asserts, without citation to any authority, that it could not have disclosed
the underlying facts to the ALJ even in camera. Without further explanation by the County or
discussion of relevant authority, we treat this point as forfeited. (Bellflower Unified School
District (2015) PERB Decision No. 2455, p. 9, fn. 9.)
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disclosure by state law].)10 Yet the County made no attempt to do so. In the face of this
inaction, it may not now credibly claim that it was caught between the proverbial rock and a
hard place with respect to justifying Paragraph 6 as necessary in this particular investigation.
The County also asserts that it was prevented from providing any information
concerning the allegations against Scimeca because “the specifics of the investigation were the
subject of a sealed criminal search warrant.” This also is an argument that was not presented
to the ALJ. In any event, the evidence shows that the Sheriff’s Department directed its Internal
Affairs department to evaluate the information concerning possible policy violations allegedly
committed by Scimeca. This investigation was independent of any criminal charges that may
have been subject to a search warrant. We therefore reject the County’s assertion that it was
the sealed search warrant that prevented it from offering evidence to the ALJ concerning the
allegations against Scimeca.
Because nothing prevents an employer from filing a Pitchess motion or utilizing
another procedure for protecting peace and custodial officer personnel records in a PERB
unfair practice hearing, we conclude that Los Angeles CCD’s requirement that an employer
provide a case-specific “legitimate and substantial business justification” for a directive not to
discuss an ongoing investigation applies to peace and custodial officers and their employers.
Consequently, as the County has failed to offer any specific justification for the proscriptions
of Paragraph 6, its defense to the interference charge fails as a matter of law. (Los Angeles
CCD, supra, PERB Decision No. 2404, p. 13; Hyundai America Shipping Agency (2011)
357 NLRB 860, 874.)
10 Section 11425.20 applies to PERB unfair practice hearings. (§ 3541.3, subd. (h);
City of Torrance (2009) PERB Decision No. 2004, pp. 5-6.)
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Additional Exceptions
The County also contends that Paragraph 6 did not interfere with Scimeca’s rights
because he was only restricted from discussing “this matter”—presumably the subject of the
investigation—with his colleagues and was still free to discuss “union related matters” with his
co-workers and could discuss the investigation with his “official representative.” We join with
the ALJ in rejecting this argument.
The fact that Paragraph 6 did not restrict Scimeca from discussing the larger category
of “union related matters” misses the point of the Association’s objection to the order and
ignores the teaching of Los Angeles CCD. A generalized gag rule harms employee and
organizational rights because it prevents communication about a particular “union related
matter,” namely an employer investigation into alleged misconduct, which could hamper the
subject employee’s ability to prepare for an investigatory interview. In this case, the same
order interferes with the ability of the employee organization to render assistance concerning
this particular matter—investigation of conduct that could result in discipline.
Neither does the County’s assertion that Paragraph 6 did not prevent Scimeca from
speaking to his “official representative” excuse its conduct. The right protected by MMBA
section 3502 and in Los Angeles CCD is the right to communicate with co-workers about
working conditions. Absent legitimate employer justification, that right is not limited only to
an “official representative.” Because CPOA had but one paid staff person who is responsible
for office administration, not representation, Scimeca’s choice for a representative would
logically and foreseeably be a co-worker. By the literal terms of Paragraph 6, he would not
have been able to speak to that person about “the matter,” effectively denying him
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representation.11 Equally problematic is that Paragraph 6, read literally, forces a choice of
“official representative” who is not employed by the Sheriff’s Department. It is not the
employer’s purview or its right to dictate who serves as a representative of an employee
organization or of an individual. (San Bernardino County (Office of the Public Defender),
supra, PERB Decision No. 2423-M, p. 36.)
For all of the reasons discussed above, we affirm the ALJ’s conclusion that the County
violated MMBA section 3506.5, subdivsion (a), when it ordered Scimeca not to discuss the
allegations against him with “any witnesses, potential witnesses, the complainant, or any other
employee of the Sheriff’s Office other than your official representative.” The same conduct
also violated MMBA section 3506.5, subdivision (b), by denying CPOA the right to represent
Scimeca.
REMEDY
Government Code section 3541.3 vests PERB with broad remedial authority to
effectuate the purpose of the Acts it administers. An appropriate remedial order seeks a
restoration of the situation as nearly as possible to that which would have obtained but for the
unfair labor practice. (Modesto City Schools (1983) PERB Decision No. 291.) In this case, it
is appropriate to direct the County to: (1) cease and desist from denying Scimeca his right to
discuss terms and conditions of his employment with co-workers, and (2) cease and desist
from denying CPOA its right to represent members without interference by the County. This
11 The County asserts in its exceptions that Paragraph 6 did not prevent Scimeca from
having a co-worker represent him. This post hoc explanation is undermined by the fact that in
his September 23, 2015 letter to Scimeca clarifying the terms of his administrative leave,
Undersheriff Hirokawa did not mention Paragraph 6 or otherwise offer any assurance that its
true meaning permitted Scimeca to have a co-worker represent him. Employees should not
have to navigate at their own peril the parameters of an employer’s directive, and any
ambiguity in the directive should be construed against the employer. (Hyundai America
Shipping Agency, supra, 357 NLRB 860.)
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includes the right to discuss workplace investigations between and among employees and
their union representatives, absent a showing that confidentiality is justified by circumstances
particular to the subject investigation. Thus, to the extent that Paragraph 6 of the
September 17, 2015 letter is still in effect, the County should be ordered to rescind that
paragraph.
It is also appropriate that the County be ordered to post a notice incorporating the
terms of this order. (Belridge School District (1980) PERB Decision No. 157.) 	However, to
ensure the continued viability of this tool, where the offending party in unfair practice
proceedings regularly communicates with public employees by e-mail, intranet, websites or
other electronic means, it shall be required to use those same media to post notice of the
Board’s decision and remedial order. Any posting of electronic means shall be in addition to
the Board’s traditional physical posting requirement. (City of Sacramento (2013) PERB
Decision No. 2351-M.)
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in
the case, it is found that the County of Santa Clara (County) violated the Meyers-Milias-
Brown Act (Act), Government Code sections 3506.5, subdivisions (a) and (b). The County
violated the Act by interfering with the rights of Scimeca to discuss the terms and
conditions of his employment with co-workers, and also by interfering with the right of the
Santa Clara County Correctional Peace Officers’ Association (CPOA) to represent its
members in their employment relations with the County.
Pursuant to MMBA section 3509, subdivision (a), it hereby is ORDERED that the
County, its governing board and its representatives shall:
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A. 	CEASE AND DESIST FROM:
1. 	Interfering with Lance Scimeca’s (Scimeca) rights to communicate with
other employees about terms and conditions of employment; and
2. 	Interfering with CPOA’s right to represent employees in their
employment relations with the County.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO EFFECTUATE THE POLICIES OF THE ACT:
1. 	Rescind the directive in Paragraph 6 of the September 17, 2015 letter to
Scimeca and others, prohibiting them from discussing workplace investigations with
coworkers.
2. 	Within ten (10) workdays following the date this Decision is no
longer subject to appeal, post at all work locations where notices to employees in the
Sheriff’s Department 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 it
will comply with the terms of this Order. Such posting shall be maintained for a period of
thirty (30) consecutive workdays. In addition to the physical posting of paper notices, the
Notice shall be posted by electronic message, intranet, internet site and other electronic means
customarily used by the County to communicate with its employees in the bargaining unit
represented by CPOA. (City of Sacramento (2013) PERB Decision No. 2351-M.)
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered,
defaced or covered with any other material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel’s designee. Respondent shall provide reports, in writing, as directed by the General
18

Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on CPOA.
Members Banks and Shiners joined in this Decision.
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APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-1339-M, Santa Clara County
Correctional Peace Officers’ Association v. County of Santa Clara, in which all parties had the
right to participate, it has been found that the County of Santa Clara violated the Meyers-
Milias-Brown Act (MMBA), Government Code section 3500 et seq.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with Lance Scimeca’s rights to communicate with other
employees about terms and conditions of employment; and
2. 	Interfering with CPOA’s right to represent employees in their
employment relations with the County
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Rescind the directive in Paragraph 6 of the September 17, 2015 letter to
Lance Scimeca and others prohibiting them from discussing workplace investigations with
coworkers.
Dated: _____________________ 	COUNTY OF SANTA CLARA
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.