County of Monterey (PERB 2821M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA NURSES ASSOCIATION,
Charging Party,
v.
COUNTY OF MONTEREY,
Respondent.
Case No. SF-CE-1886-M
PERB Decision No. 2821-M
June 1, 2022
Appearances: Anthony J. Tucci, Attorney, for California Nurses Association; Janet
L. Holmes, Assistant County Counsel, for County of Monterey.
Before Banks, Chair; Shiners and Krantz, Members.
DECISION
KRANTZ, Member: This unfair practice case is before the Public Employment
Relations Board (PERB or Board) for decision based upon the evidentiary record from
a hearing before an administrative law judge. The parties’ dispute began after
Charging Party California Nurses Association (CNA) filed a unit modification petition
(Petition) with Respondent County of Monterey. Through the Petition, CNA sought to
add unrepresented per diem Registered Nurses (RNs) and per diem Nurse
Practitioners (NPs) to “Unit S,” an existing County bargaining unit of regular RNs and
NPs. The County denied CNA’s Petition and instead created “Unit SPD,” a new
bargaining unit containing solely per diem RNs and per diem NPs. CNA filed this
charge in response, alleging that, in denying the Petition, the County violated its

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Employer-Employee Relations Resolution (EERR), the Meyers-Milias-Brown Act
(MMBA), and PERB Regulations.1
We have reviewed the record and considered the parties’ arguments. For the
reasons explained below, we find the County violated its EERR, the MMBA, and
PERB Regulations. We direct the County to add the per diem RN and per diem NP
classifications to Unit S.
FACTUAL FINDINGS AND PROCEDURAL HISTORY
I. 	Background
The County is a public agency within the meaning of MMBA section 3501,
subdivision (c) and PERB Regulation 32016, subdivision (a). CNA is an employee
organization within the meaning of MMBA section 3501, subdivision (a), and the
exclusive representative of Unit S within the meaning of PERB Regulation 32016,
subdivision (b).
In 2010, the County adopted the EERR pursuant to its authority under MMBA
section 3507, subdivision (a). EERR Sections VII, VIII, and IX, which cover,
respectively, unit determination criteria, modification of established bargaining units,
and appeals, include the following relevant provisions:
“Section VII. POLICY AND STANDARDS FOR
DETERMINATION OF APPROPRIATE UNITS
1 The MMBA is codified at Government Code section 3500 et seq. Unless
otherwise specified, all further statutory references are to the Government Code.
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

3
“The policy objectives in determining the appropriateness of
units shall be the effect of a proposed unit on:
“A. The efficient operations of the County and its
compatibility with the primary responsibility of the County
and its employees to effectively and economically serve the
public, and
“B. Effective representation based on recognized
community of interest considerations.
“C. The appropriate unit shall be the broadest feasible
grouping of positions that share an identifiable community
of interest. Factors to be considered in community of
interest analysis shall be:
“1. The unit shall include the broadest feasible groups of
employees based upon internal and occupational
community of interest. Fragmentation of units is to be
avoided.
“2. Consistency with the organizational patterns of the
County.
“3. The history of employee relations in the unit, among
other employees in the County, and in similar public
employment.
“4. Similarity of duties, qualifications, skills, and working
conditions of employees.
“5. No County employment classification title shall be
included in more than one representation unit. Supervisory
employees and non-supervisory employees shall not be
included in the same unit.
“6. Professional employees shall not be denied the right to
be represented separately from non-professional
employees by a professional employee organization
consisting of such employees.

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“7. Management and/or confidential employees shall not be
included in any unit which includes non-management
and/or non-confidential employees.”
“Section VIII. MODIFICATION OF REPRESENTATION
UNITS
“A. Employees or an employee organization may file a
petition for modification of an established representation
unit. The petition shall be submitted to the Employee
Relations Officer, [2] accompanied by proof of employee
support that the petitioner represents more than fifty
percent (50%) of the employees who, if the petition were
successful would be placed in a separate or another
bargaining unit.
[¶] . . . [¶]
“F. If the Employee Relations Officer and the petitioners do
not agree on the appropriateness of the unit and such
disagreement cannot be resolved by mutual agreement, the
matter will be referred to the appeal process, as provided in
Section IX, for hearing and final decision. If the matter is
resolved by agreement, the Employee Relations [O]fficer
shall certify the modified unit and make appropriate
notification.”
“Section IX. APPEALS
“In the event agreement is not reached between the County
and affected employee organizations concerning the
appropriateness of a proposed representation unit or a
modification thereof the employee organization may, within
ten (10) days of notice thereof request the intervention of
the California State Mediation and Conciliation Service
pursuant to Government Code Sections 3507.1 and 3507.3,
2 The EERR allows the County Administrative Officer to designate who shall
serve as the County’s Employee Relations Officer. At all relevant times, County
Human Resources Program Manager Ariana Hurtado served in that role.

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or may, in lieu thereof or thereafter, appeal such
determination to the County Board of Supervisors for final
decision within fifteen (15) days of notice of the Employee
Relations Officer’s determination or the termination of
proceedings pursuant to Government Code Section 3507.1
or 3507.3, whichever is later.
[¶]
“Appeal to the Board of Supervisors shall be filed in writing
with the Clerk to the Board, and a copy thereof served on
the Employee Relations Officer. The Board of Supervisors
shall begin consideration of the matter within thirty (30)
days of the filing of the appeal. The Board of Supervisors
may, in its discretion, refer the dispute to a third party
hearing process. Any decision of the Board of Supervisors
on the use of such procedure, and/or any decision of the
Board of Supervisors determining the substance of the
dispute shall be final and binding.”
II. 	CNA Petitions to Represent Unit S and Separately Petitions to Modify the Unit
On May 5, 2021, CNA filed two representation petitions with the County.3 The
first petition sought to replace Monterey County Registered Nurses Association
(MCRNA) as the exclusive representative of Unit S, which comprises 14 classifications
at Natividad Medical Center, including Staff Nurse I, II, and III, and NP I, II, and III.
There are approximately 550 employees in Unit S, each of whom must hold an RN
license.
CNA’s second Petition sought to add to Unit S all per diem classifications
requiring an RN license. At the time, the County had three classifications in this
category: Staff Nurse - Per Diem, Staff Nurse - Per Diem COVID-19, and Nurse
3 All dates refer to 2021, unless otherwise specified.

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Practitioner III - Per Diem. The County had not placed these classifications into any
County bargaining unit. Nor had the County placed into a bargaining unit its other per
diem classifications, which did not require RN licensure.4
On May 7, MCRNA disclaimed interest in representing Unit S.
On May 24, the State Mediation and Conciliation Service verified CNA’s proof
of support and determined that CNA submitted sufficient proof of support for each of
its petitions.
On June 8, Hurtado issued a written determination regarding CNA’s petitions.
Hurtado found that, in light of MCRNA’s disclaimer of interest, CNA should be
recognized as the exclusive representative of Unit S.
Hurtado then opined that per diem RNs and NPs do not belong in Unit S. She
stated that the Staff Nurse - Per Diem COVID-19 classification was an emergency
classification that the County would no longer use after the COVID emergency
subsided, and briefly explained why she believed Unit S should not include the other
two petitioned-for per diem classifications:
“[T]he identified per diem classification [sic] do not share
occupational community of interest with the existing Unit S
classifications as they are unbenefited at-will positions. The
addition of the identified per diem classifications to Unit S is
also not consistent with the organizational patters [sic] of
the County or the history of employee relations for Unit S
and other employee groups.”
4 The County has approximately 13 per diem classifications in total. (See
https://www.governmentjobs.com/careers/montereycounty/classspecs?keywords=per
%20diem) [as of May 26, 2022].)

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Hurtado found it more appropriate to establish a new unit comprised solely of the per
diem RN and NP classifications—Unit SPD—and to recognize CNA as Unit SPD’s
exclusive representative.
As part of comparing regular and per diem RNs and NPs in our legal analysis,
post at pp. 13-15, we make additional factual findings regarding each group’s duties,
qualifications, skills, and employment terms and conditions.
III. 	CNA Appeals to the Board of Supervisors
On June 23, CNA appealed Hurtado’s determination to the County Board of
Supervisors (BOS).5 CNA argued that per diem RNs and NPs share a community of
interest with Unit S members and that Hurtado improperly applied the EERR. CNA
asked the BOS to grant its Petition or, in the alternative, conduct a hearing.
On July 22, CNA wrote to the BOS again, inquiring about the status of its
appeal and noting that EERR Section IX requires the BOS to begin consideration of
an appeal within 30 days of its filing.
On August 3, Hurtado e-mailed CNA a one-page BOS decision. The decision,
dated July 20, asserted that the BOS denied CNA’s appeal in a closed session that
day. The County had not notified CNA that the BOS would consider its appeal on
July 20. The County did not, at any stage, offer CNA the opportunity to participate in a
hearing regarding its Petition.
The BOS decision analyzed unit appropriateness in a single paragraph:
5 CNA did not appeal Hurtado’s determination as to the Staff Nurse - Per Diem
COVID-19 classification, and CNA has not addressed that classification in its charge.
We therefore express no opinion on that classification.

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“After consideration of CNA’s appeal and review of the ‘unit
appropriateness’ standards set forth in Section VII of the
EERR, the Board of Supervisors determined that adding the
per diem nurses to Unit S does not meet the identified
standards because, historically the per diem nursing
classifications (1) have not been represented, (2) have not
been eligible for benefits, leaves or special pay provisions
as indicated in the Unit S Memorandum of Understanding,
(3) consist entirely of ‘at-will’ positions and (4) receive
higher base wages, and fewer benefits, than their existing
Unit S counterparts. Due to the significantly different
position the per diem nursing classifications have had
within the County’s organizational structure, adding the per
diem nursing classifications would not meet the unit
appropriateness standards of (1) sharing occupational
community of interest with existing Unit S classifications,
(2) is not consistent with organizational patterns of the
County and (3) is not consistent with the history of
employee relations for Unit S and other employee groups.”
IV. 	CNA Challenges the County’s Decision through this Unfair Practice Charge
CNA filed this charge on August 5. Thereafter, the Board granted CNA’s
unopposed request to expedite the case at all levels. After the County responded to
the charge, PERB’s Office of the General Counsel issued a complaint, and the County
filed an answer.
On December 7, the parties participated in a virtual evidentiary hearing before a
PERB administrative law judge. The parties called witnesses, presented documentary
evidence, and stipulated to certain facts. After the parties filed post-hearing briefs, the
Board transferred the record to the Board itself for decision pursuant to PERB
Regulations 32215 and 32320, subdivision (a)(1).6
6 PERB Regulation 32215 allows the Board itself to direct a Board agent to
“submit the record of the case to the Board itself for decision.” PERB

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DISCUSSION
MMBA section 3507, subdivision (a) authorizes public agencies to “adopt
reasonable rules and regulations after consultation in good faith with representatives
of a recognized employee organization or organizations for the administration of
employer-employee relations.” Such local rules may include provisions for, among
other things, determining appropriate bargaining units. (MMBA, § 3507, subds. (a)(3),
(a)(4); Covina-Azusa Fire Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48,
60; City of Pasadena (2021) PERB Decision No. 2788-M, p. 8 (Pasadena).)
CNA mainly argues that the County unreasonably applied its EERR.7 When
challenging an MMBA employer’s unit determination under its local rules, the
challenging union has the burden of demonstrating the decision was not reasonable.
(Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331,
338 (San Mateo); Pasadena, supra, PERB Decision No. 2788-M, p. 8.) If reasonable
minds could differ over whether the determination comports with the local rules and
the MMBA, PERB should not substitute its judgment for that of the employer. (San
Mateo, supra, 48 Cal.App.3d at pp. 338-339.) PERB finds no unfair practice where the
employer reasonably interprets its own rules in a manner that effectuates the MMBA’s
purposes. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 10, citing City of
Madera (2016) PERB Decision No. 2506-M, p. 5.) The inverse is true if the employer
Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision
based upon the record of hearing.”
7 While CNA also claims that the EERR contains at least one facially invalid unit
criterion, we find no cause to reach that argument. (See post at fn. 14.)

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acted inconsistently with a reasonable interpretation of the rule. (City of Long Beach,
supra, PERB Decision No. 2771-M, p. 10.)
In reviewing an MMBA employer’s unit determination under its local rules,
PERB normally applies a rebuttable presumption that the determination is reasonable.
(Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M,
pp. 21-22.) But when the employer “simply state[s] the standard that applies and then
provide[s] a conclusion without also including the analytical process in its decision,”
the presumption of reasonableness falls away. (City of Livermore (2017) PERB
Decision No. 2525-M, adopting proposed decision at p. 48 (Livermore).) While PERB
may consider evidence presented at the hearing about the employer’s reasoning for
its decision, PERB need not accept post-hoc rationalizations offered to cure defects in
the determination. (Id. at pp. 10-11 & adopting proposed decision at p. 48.)
Here, because Hurtado and the BOS provided minimal analysis in support of
their conclusions, we do not presume reasonableness. And, as the below analysis
demonstrates, even were we to apply the presumption, and fully considering the
additional explanations the County has provided during these unfair practice
proceedings, the County’s application of its local rules to CNA’s unit modification
petition was unreasonable. Any lawful application of the EERR requires the County to
place per diem RNs and NPs in the same unit as regular RNs and NPs.8
8 Since NPs must have an RN license, hereafter we refer to RNs and NPs
collectively as RNs, except where context dictates otherwise.

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I. 	The County Ignored the EERR’s Preference for Broader Units
The EERR repeatedly references the need to determine the broadest feasible
group based on community of interest and explicitly states that “[f]ragmentation of
units is to be avoided.” (EERR, § VII(C) [“The appropriate unit shall be the broadest
feasible grouping of positions that share an identifiable community of interest. Factors
to be considered in community of interest analysis shall be: (1) The unit shall include
the broadest feasible groups of employees based upon internal and occupational
community of interest. Fragmentation of units is to be avoided”].) The EERR thus
tracks settled precedent. (See, e.g., County of Santa Clara (2019) PERB Decision
No. 2670-M (Santa Clara), p. 19 [“[P]ublic sector bargaining units may require
modification to avoid fragmentation and ensure operational efficiency”].) Indeed,
because “[t]he foundation of public sector labor relations is to protect employees’ right
to representation and to balance those rights with public employers’ interest in
maintaining operational efficiency . . . we generally seek to avoid the fragmentation of
employee groups and proliferation of bargaining units.” (Id. at p. 27 & fn. 25; Regents
of the University of California (2017) PERB Order No. Ad-453-H, pp. 23-24; County of
Orange (2016) PERB Decision No. 2478-M, pp. 3-4; County of Yolo (2013) PERB
Decision No. 2316-M, p. 10; City of Glendale (2007) PERB Order No. Ad-361-M,
pp. 5-6; El Monte Union High School District (1982) PERB Decision No. 220, pp. 9-10;
Unit Determination for the State of California (1979) PERB Decision No. 110-S, p. 6.)
Hurtado and the BOS failed to mention this critical factor even a single time.
And their analyses contravene this factor quite significantly, as it is difficult to imagine
a plainer example of unnecessary fragmentation than placing just over 50 County RNs

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in a newly formed unit all their own, rather than in an existing unit comprising over 500
County RNs who perform identical work at the same hospital.9
II. 	The County Ignored the Most Critical Employment Characteristics
The EERR specifies which employment characteristics are most important in
assessing community of interest: “duties, qualifications, skills, and working conditions
of employees.” (EERR, § VII(D).) In this respect, the EERR again tracks precedent by
eschewing reliance on wages, benefits, just cause protection, and other employment
terms typically established through bargaining and instead focusing on less
changeable characteristics. (San Joaquin Regional Transit District (2019) PERB
Decision No. 2650-P, p. 17 (San Joaquin), citing Santa Clara County Office of
Education (1990) PERB Decision No. 839, p. 2 and adopting proposed decision at
p. 12 [community of interest determination should not turn on differences in wages,
benefits, and other terms and conditions of employment that are primarily controlled
by the employer and may be changed through collective bargaining].)
In evaluating employee duties, qualifications, skills and working conditions, we
are mindful that there is always variation between any two classifications in a
bargaining unit, and such variation does not defeat community of interest if there are
sufficient countervailing commonalities. (Santa Clara, supra, PERB Decision
9 While the preference for broader units in the public sector does not warrant
accreting a group of employees into a unit if the exclusive representative objects, that
is not the case here. (Salinas Valley Memorial Hospital District, supra, PERB Decision
No. 2689-M, p. 30, fn. 29 & p. 31, fn. 31; County of Santa Clara, supra, PERB
Decision No. 2670-M, p. 31; Santa Clara Valley Water District (2017) PERB Decision
No. 2531-M, p. 17.)

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No. 2670-M, p. 30; San Joaquin, supra, PERB Decision No. 2650-P, pp. 17-18.)
Indeed, if the opposite were true, each classification would be its own bargaining unit.
Here, commonalities among critical employment characteristics outweigh
differences by a wide margin. The Staff Nurse – Per Diem job description includes
20 duties, and the corresponding Staff Nurse II job description includes all 20 of these
duties, verbatim, plus just one more duty (serving as a charge nurse on occasion, if
necessary). Similarly, the Nurse Practitioner III – Per Diem job description includes
seven duties, and the corresponding regular Nurse Practitioner I/II/III job description
includes the exact same duties, verbatim.
There is also total overlap in qualifications. The Staff Nurse – Per Diem job
description includes one required condition of employment and 18 required
qualifications that may alternatively be met via a combination of education and
experience; the corresponding Staff Nurse II job description has precisely the same
requirements. Similarly, the Nurse Practitioner III – Per Diem job description includes
23 required knowledge or skill items, and the corresponding regular Nurse
Practitioner III description requires precisely the same skills and knowledge.
The County concedes that per diem and regular employees perform the same
work under the same working conditions. Unrebutted testimony from RNs also
confirms this fact. For instance, Scott Brusaschetti, who has worked at Natividad as
both a per diem RN and a regular RN, testified that when he transitioned from per
diem to regular, “it was simply one day I was per diem and the next day I was a staff
nurse,” and based on his experience, “[t]here is really no difference” between the job
of a per diem nurse and that of a regular nurse. Both per diem and regular staff nurses

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are primarily responsible for providing direct bedside care to patients. Per diem RNs
have a high degree of interaction and interchange with regular RNs. Per diem and
regular RNs work on the same shifts, collaborate at patients’ bedsides, hand off
patients to one another at breaks and shift changes, and regularly swap shifts with
one another. All RNs have the same line of supervision; they report to the Supervising
Nurse, who reports to the departmental director, and ultimately to the Chief Nursing
Officer. Brusaschetti also emphasized that all RNs, no matter their employment status,
rely on each other “for assistance and help taking care of our patients safely.”
The commonalities are just as strong among regular and per diem NPs as they
are among regular and per diem RNs. Both per diem and regular NPs are primarily
responsible for examining patients, diagnosing and managing care of patients, and
performing procedures. NP Sandra Mobley noted that when she moved back and forth
between per diem and regular NP positions, she “was performing the exact same job.”
Per diem NPs share common lines of supervision with regular NPs; each NP reports
to the NP Program Manager, who in turn reports to the Medical Director. Per diem and
regular NPs work on the same shifts, regularly swap shifts, perform the same duties
as one another, and “sign off” patients to the oncoming NP, no matter their
employment status. Mobley commented that per diem and regular NPs “work as a
team” to ensure continuity of patient care.
It is common for RNs and NPs to go back and forth between per diem and
regular employee status during their careers, often depending on their life
circumstances. This is clear based on testimony from Brusaschetti, Mobley, and
Assistant Hospital Administrator Luwanda Janine Bouyea. Thus, to suggest that per

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diem and regular RNs do not share a community of interest leads to the absurd
conclusion that an individual RN such as Brusaschetti does not have a community of
interest with himself as he transitions between the two roles.
Hurtado testified as to her belief that per diem employees would have different
perspectives and interests from regular employees. The job descriptions and other
evidence show that the sole characteristics distinguishing per diem and regular RNs
relate to scheduling, compensation, and job protections. As noted above, such
typically bargainable distinctions do not overcome commonalities in characteristics
that are less likely to be subject to bargaining. That is particularly true here, where the
per diem and regular classifications have the same education, skill, and licensure
requirements, as well as the same duties.
Further, the record does not show that collective negotiations are incapable of
addressing the potential divergence of interests between per diem and regular RNs
over issues such as scheduling, compensation, and job protections. (Pasadena,
supra, PERB Decision No. 2788-M, pp. 10-12; Los Rios Community College District
(2018) PERB Decision No. 2587, pp. 4-6 (Los Rios).) Per diem and regular RNs
complement one another in making the hospital work, giving the parties a reason to
ensure that neither type of classification becomes so much more attractive that the
County cannot successfully recruit or retain employees in the other classification.
Negotiating employment terms for per diem and regular employees at one bargaining
table, therefore, will help the parties to craft balanced incentives for each
classification, while securing terms that prevent per diem use from undermining
regular employment or otherwise exploiting employees. (See, e.g., Salinas Valley

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Memorial Healthcare System (2017) PERB Decision No. 2524-M, pp. 5-6 [quoting
collective bargaining provision establishing seniority and layoff rights of full-time,
part-time, and per diem employees].)
Hurtado noted in her testimony that the parties could negotiate contracts for
Unit S and Unit SPD at a single bargaining table. Accepting the logic of joint
bargaining further undercuts the County’s argument by suggesting that the County
recognizes joint bargaining as an efficient approach. Indeed, denying CNA’s Petition
would mean that either party could reject such efficiencies at any time even if CNA
were to remain the exclusive representative of both units, and it would allow
employees in either unit to decertify CNA and eliminate that possibility altogether. The
County apparently did not consider such inefficiencies, contrary to the EERR’s
requirements.
Hurtado’s written determination mentioned two employment terms that are
bargainable and do not appear among the list of relevant terms in the EERR: the
fringe benefits and job protections afforded to regular RNs but not per diem RNs.10
The BOS relied on a slightly broader set of employment terms. However, like Hurtado,
the BOS ignored the critical employment characteristics that are more relevant under
the EERR and precedent, instead focusing on other, bargainable employment terms.
And as shown above, even if we were to treat fringe benefits and job protections as
being on par with job duties, skills, qualifications and working conditions, the extensive
10 We accept for the sake of argument the County’s apparent assumption that
per diem RNs presently have no job protections. Because this issue is not germane to
the issue before us, we make no findings one way or the other on this topic.

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commonalities are still far more than sufficient to require that per diem and regular
RNs be in the same unit.11
III. 	County Organizational Patterns Do Not Warrant a Separate Per Diem RN Unit
Neither Hurtado nor the BOS provided any contemporaneous explanation for
their conclusion that creating Unit SPD was most consistent with the County’s
organizational patterns. As noted above, an MMBA employer’s post-hoc explanations
for its application of its local rules bear little weight. (Livermore, supra, PERB Decision
No. 2525-M, p. 10.) Even after the fact, during unfair practice proceedings, the County
has largely failed to grapple with the fact that CNA’s Petition was consistent with the
County’s organizational patterns because the County has long had only a single
bargaining unit for non-supervisory RNs.
Hurtado testified as to her belief that organizational patterns favored the
County’s position in one respect. Specifically, she analogized per diem employees to
temporary employees, and she noted that the County had placed temporary
employees in their own unit.12
11 In its brief, the County raises one employment characteristic that neither
Hurtado nor the BOS mentioned in their analyses: Per diem RNs can choose when
they wish to work (within limits), while regular RNs have assigned block schedules,
though they may hold as little as a 20 percent part-time position. As noted above,
however, bargainable topics bear less weight in community of interest analysis, and
any two classifications in a bargaining unit invariably differ from one another in some
respects. Also, this post-hoc explanation bears little weight. (Livermore, supra, PERB
Decision No. 2525-M, p. 10.)
12 The temporary employee unit specifically excludes per diem employees.

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Temporary employees are distinct from per diem employees. One difference is
that a temporary employee fills a role with a planned end date, while per diems have
no such end date. But even accepting for the sake of argument that temporary
employees and per diems are somewhat comparable in that neither are regular
employees, the County’s decision to place all temporary employees in a single unit—
irrespective of their duties, qualifications, skills and working conditions—does not
create a pattern supporting the County’s decision to create Unit SPD. Indeed, there is
no evidence of a pattern that supports splitting per diem employees into separate per
diem units based on their duties, qualifications, skills and working conditions.13
IV. 	While the Per Diems’ History of Being Unrepresented Does Not Support Either
Party’s Position, Practice at Other Public Hospitals Supports CNA’s Petition
The BOS believed that because per diem employees were historically
unrepresented, placing them in Unit S would be inconsistent with the County’s
employee relations history. However, where a union petitioning for unit modification
establishes a community of interest between unrepresented employees and the
existing unit, the classification’s history of unrepresented status bears little weight.
(See San Joaquin, supra, PERB Decision No. 2650-P, p. 12, fn. 11; Regents of the
University of California (2010) PERB Decision No. 2107-H, pp. 18-23; Hemet Unified
School District (1990) PERB Decision No. 820.) Employee relations history is more
13 CNA argues that because it subpoenaed the County to produce records
about the origins of the temporary employees unit, and the County failed to produce
such documents, we should draw an adverse inference that the temporary employees
unit does not support the County’s position. There is no need to reach this issue. Even
without such an inference, the temporary employees unit does not change the
outcome of our decision.

19
important when employees have historically been in an established unit—such as
when we consider a severance petition—because under those circumstances,
maintaining continuity weighs against severance absent proof that collective
negotiations are incapable of addressing the needs of a discrete minority within an
existing unit. (Pasadena, supra, PERB Decision No. 2788-M, p. 10; Los Rios, supra,
PERB Decision No. 2587, pp. 4-6.) In any event, even to the extent that one affords
any weight to the history of all per diems (including RNs) being in no unit, carving out
a small new unit for per diem RNs is no more consistent with employee relations
history than is CNA’s Petition.
Moreover, despite the EERR providing that relevant community of interest
factors include “[t]he history of employee relations . . . in similar public employment”
(EERR, § VII(C)(3)), the County did not consider the unit structure at comparable
public hospitals. Most notably, the County did not address CNA’s evidence that at
Salinas Valley Memorial Hospital District, a public hospital located in the County, all
RNs—including per diem RNs—are in a single unit. The BOS also did not address
CNA’s evidence that other northern California counties, including Marin, Sacramento,
San Francisco, San Joaquin, San Mateo, and Santa Clara, include both regular and
per diem RNs in unitary bargaining units.
V. 	No Other Factors Support the County’s Approach
As discussed above, the County unreasonably applied the criteria it purported
to rely on—the first four factors listed in EERR Section VII(C). While the County did
not cite other factors to support its decision, we briefly discuss other potentially
relevant criteria in the EERR.

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EERR Section VII(A) states a policy objective of helping the County serve the
public efficiently and effectively. The record includes no concrete evidence that
creating Unit SPD improves County operations. (Los Rios, supra, PERB Decision
No. 2587, p. 7.) Rather, if anything, the above analysis indicates that it is more
efficient to combine regular and per diem RNs into one unit.
EERR Section VII(B) states a policy objective of providing “[e]ffective
representation based on recognized community of interest considerations.” To the
extent this reference to recognized community of interest factors might allow
consideration of community of interest factors beyond those listed in Section VII(C), it
does not support the County’s position. The record does not show that per diem RNs
will receive more effective representation in their own unit.
EERR Section VII(C)(5) provides that a single classification should generally fall
within a single unit. Technically, the County’s decision does not contravene this factor,
as the County places per diem RNs into a separate, per diem classification.
Nonetheless, splitting non-supervisory RNs who perform the same work across
multiple bargaining units contravenes the spirit of this criterion, which, like others
discussed above, seeks to limit unit fragmentation. Similarly, while EERR
Sections VII(C)(6)-(7) permit fragmentation to allow professional, managerial, and
confidential employees their own units, no such factor supports separating per diems
into their own unit, as both per diem and regular RNs are professional employees.
Therefore, the factors the County claims are irrelevant certainly do not aid its case and
at least marginally undercut it.

21
For the foregoing reasons, the County’s unit determination was not reasonable.
Applying the EERR reasonably and to comport with the MMBA requires placing per
diem RNs and NPs in Unit S.14
ORDER
Based on the foregoing and on the entire record in this case, the Public
Employment Relations Board (PERB) finds that the County of Monterey violated its
Employer-Employee Relations Resolution (EERR), PERB Regulations, and the
Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et. seq., by
unreasonably applying its EERR to deny a unit modification petition filed by California
Nurses Association (CNA). These actions violated MMBA sections 3507 and 3507.1,
and are unfair practices under MMBA section 3509, subdivision (b), and PERB
Regulation 32603, subdivisions (f) and (g). By this conduct, the County derivatively
interfered with the right of employees to participate in the activities of an employee
organization of their own choosing and derivatively denied CNA its right to represent
employees in their employment relations with a public agency, in violation of MMBA
sections 3503, 3506, and 3506.5, subdivisions (a) and (b), and committed an unfair
14 Because we find that reasonable minds could not differ over the
appropriateness of adding per diem RNs to Unit S (Santa Clara Valley Water District,
supra, PERB Decision No. 2531-M, p. 11), we need not reach CNA’s alternative
argument that the County should have granted CNA a hearing on its appeal. For this
same reason, we decline to decide whether EERR Section VII(C)(2) is facially
unreasonable, as CNA claims.

22
practice under MMBA section 3509, subdivision (b) and PERB Regulation 32603,
subdivisions (a) and (b).
Pursuant to MMBA section 3509, subdivision (a), the County, its governing
board, and its representatives shall:
A. 	CEASE AND DESIST from unreasonably applying its Employer-
Employee Relations Resolution in making decisions regarding unit appropriateness
and unit modification.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Grant CNA’s petition for unit modification and recognize CNA as
the exclusive representative of a modified Unit S which includes the Staff Nurse – Per
Diem and Nurse Practitioner III – Per Diem classifications.
2. 	Meet and confer in good faith with CNA over all terms and
conditions of employment for the Staff Nurse – Per Diem and Nurse Practitioner III –
Per Diem classifications accreted into Unit S.
3. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all work locations in the County where notices to employees
represented by CNA 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 30 consecutive workdays. The County shall take reasonable
steps to ensure that the Notice is not altered, defaced, or covered with any other
material. In addition to physically posting this Notice, the County shall post it by

23
electronic message, intranet, internet site, and other electronic means the County
customarily uses to communicate with its CNA-represented employees.15
4. 	The County shall provide written notification of the actions it has
taken to comply with this Order to the General Counsel of PERB, or the General
Counsel’s designee. The County shall provide reports, in writing, as directed by the
General Counsel or designee, and shall concurrently serve all such reports on CNA.
Chair Banks and Member Shiners joined in this Decision.
15 In light of the ongoing COVID-19 pandemic, the County shall notify PERB’s
Office of the General Counsel in writing if, due to an extraordinary circumstance such
as an emergency declaration or shelter-in-place order, a majority of employees at one
or more work locations are not physically reporting to their work location as of the time
the physical posting would otherwise commence. If the County so notifies the General
Counsel’s Office, or if any party requests in writing that the General Counsel alter or
extend the posting period, require additional notice methods, or otherwise adjust the
manner in which employees receive notice, the General Counsel’s Office shall
investigate and solicit input from all parties. It shall provide amended instructions to
the extent appropriate to ensure adequate publication of the Notice, such as directing
the County to commence posting within 10 workdays after a majority of employees
have resumed physically reporting on a regular basis; directing the County to mail the
Notice to all employees who are not regularly reporting to any work location due to the
extraordinary circumstance, including those who are on a short term or indefinite
furlough, are on layoff subject to recall, or are working from home; or directing the
County to mail the Notice to those employees with whom it does not customarily
communicate through electronic means.

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-1886-M, California Nurses
Association v. County of Monterey, in which all parties had the right to participate, the
Public Employment Relations Board (PERB) found we violated the
Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq., by
unreasonably applying our local rules regarding unit determinations and unit
modifications. PERB also found that through this conduct we interfered with employee
rights and the rights of California Nurses Association (CNA) protected under the
MMBA.
As a result of this conduct, PERB ordered us to post this Notice, and we will:
A. 	CEASE AND DESIST from unreasonably applying our Employer-
Employee Relations Resolution in making decisions regarding unit appropriateness
and unit modification.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Grant CNA’s petition for unit modification and recognize CNA as
the exclusive representative of a modified Unit S which includes the Staff Nurse – Per
Diem and Nurse Practitioner III – Per Diem classifications.
2. 	Meet and confer in good faith with CNA over all terms and
conditions of employment for the Staff Nurse – Per Diem and Nurse Practitioner III –
Per Diem classifications accreted into Unit S.
Dated: _____________________ 	COUNTY OF MONTEREY
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.