City and County of San Francisco (PERB 2846M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 1021,
Charging Party,
v.
CITY AND COUNTY OF SAN FRANCISCO,
Respondent.
Case No. SF-CE-1884-M
PERB Decision No. 2846-M
November 17, 2022
Appearance: Weinberg, Roger & Rosenfeld by Kerianne R. Steele, Attorney, for
Service Employees International Union Local 1021.
Before Banks, Chair; Shiners, Krantz, and Paulson, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Service Employees International Union
Local 1021 (SEIU) from the partial dismissal of its unfair practice charge by PERB’s
Office of the General Counsel (OGC). The charge, as amended, alleged that the City
and County of San Francisco (City)1 violated the Meyers-Milias-Brown Act (MMBA),
the Prohibition on Public Employers Deterring or Discouraging Union Membership
(PEDD), and PERB Regulations by adopting a policy requiring employees to be
vaccinated against COVID-19 and implementing various measures to enforce the
1 The charge also named the City’s Municipal Transportation Agency (SFMTA)
as a respondent. All references in this decision to the City include SFMTA, except
where indicated otherwise.

2
policy.2 OGC dismissed the allegations that the City violated the MMBA and PERB
Regulations by: (1) unilaterally deciding to adopt the mandatory COVID-19
vaccination policy; (2) requiring employees to disclose their vaccination status; and
(3) refusing to allow employees to submit SEIU-created vaccination ascertainment
forms in lieu of the City’s form.3
SEIU appealed the partial dismissal, arguing that OGC erred in analyzing the
decisional bargaining allegation regarding the mandatory COVID-19 vaccination
policy. The appeal also argues the allegation that the City required employees to
disclose their vaccination status adequately stated a prima facie case of both
unilateral change and direct dealing violations. The appeal further argues that OGC
erred in dismissing the allegation that the City interfered with MMBA-protected rights
when it required employees to use a City-generated self-certification form instead of
an alternate form SEIU created. The City did not file a statement in opposition to the
appeal.
2 The MMBA is codified at Government Code section 3500 et seq. PEDD is
codified at Government Code section 3550 et seq. PERB Regulations are codified at
California Code of Regulations, title 8, section 31001 et seq.
3 Concurrently, OGC issued a complaint alleging that the City violated the
MMBA and PERB Regulations by adopting the vaccination policy without first meeting
and conferring with SEIU over the policy’s negotiable effects, bypassing SEIU by
requiring employees to sign a form consenting to discipline for failure to comply with
the vaccination policy, unilaterally adding a COVID-19 vaccination requirement to the
minimum qualifications in job descriptions without effects bargaining, unilaterally
changing its policy on implementing religious exemptions to the vaccination policy,
and failing to provide SEIU with information about bargaining unit members’
applications for and receipt of exemptions to the vaccination policy. Around this same
time, SEIU withdrew without prejudice its PEDD allegations.

3
Based on our review of the entire case file, we affirm the dismissal of the direct
dealing allegation, but reverse the dismissal of the remaining allegations and remand
this matter to OGC to issue an amended complaint consistent with this decision.
FACTUAL ALLEGATIONS4
On or around June 11, 2021,5 the City’s Health Officer, Susan Philip, issued
Order of the Health Officer No. C19-07x (Order), wherein she directed employees of
businesses and governmental entities who regularly work in “High-Risk Settings” to be
fully vaccinated with one of the COVID-19 vaccines within 10 weeks of the U.S. Food
and Drug Administration’s (FDA) final approval of such a vaccine. The only
exemptions from this vaccination mandate were for employees who demonstrate that
they have declined the vaccine based on “Religious Beliefs” or “Qualifying Medical
Reasons” as defined in the Order.
On or around June 22, the City’s Employee Relations Manager, Jonathan
Wright, e-mailed representatives of all City employee organizations, including SEIU,
attaching a “draft” vaccination policy and “draft” face covering policy (collectively
referred to in the charge as the “Policy”). Wright wrote: “We’re providing this in
advance of issuing them city-wide in the morning.”
On June 23, the City issued the Policy in final form to all City employees. The
4 In the present procedural posture, we assume the charging party’s factual
allegations are true, and we view them in the light most favorable to the charging
party. (Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8
(Cabrillo I).) We recite here only alleged facts pertinent to the allegations dismissed by
OGC.
5 All dates are in 2021, unless otherwise indicated.

4
Policy states that, as a condition of employment, all employees must disclose their
vaccination status to the City under penalty of perjury and provide proof of vaccination
or eligibility for an exemption by July 29. Additionally, all employees must provide
proof that they were fully-vaccinated no later than 10 weeks following final FDA
approval of a COVID-19 vaccine. The Policy states that “[f]ailure to comply with the
policy may result in discipline up to and including termination.” That same day, the City
issued a memorandum to department heads and department personnel officers
explaining how to implement and enforce the mandate that employees report their
vaccination status by July 29.
On July 8, Philip updated the Order6 to give businesses and governmental
entities until September 15 to ascertain the vaccination status of employees in
High-Risk Settings and ensure those who routinely work onsite were fully vaccinated
against COVID-19.7 Under the Order, any employee who declined the vaccine for
exempted reasons was required to submit to COVID-19 testing at least once a week.
On July 20, Philip amended the Order to add an October 13 deadline for
businesses and governmental entities to identify and ascertain vaccination status for
employees “who are not permanently stationed or regularly assigned to a High-Risk
Setting but who in the course of their duties may enter or work in High-Risk Settings
6 The updated Order changed to No. C19-07y, but will be referenced as the
Order throughout.
7 The Order defined “High-Risk Settings” as “certain care or living settings
involving many people, including many congregate settings, where vulnerable
populations reside out of necessity and where the risk of COVID-19 transmission is
high, consisting of general acute care hospitals, skilled nursing facilities, residential
care facilities for the elderly, homeless shelters, and jails.”

5
even on an intermittent or occasional basis or for short periods of time.”
On July 28, the City’s Human Resources Director, Carol Isen, issued a
memorandum titled “Condition of Employment: COVID-19 Vaccination Requirements,”
which said “COVID-19 vaccinations will be required as a condition of employment for
all City and County of San Francisco employees working in high-risk settings, unless
otherwise exempted.” The memorandum also required all City employees to be fully
vaccinated as a condition of employment 10 weeks after the FDA approves at least
one COVID-19 vaccine.
On August 10, the City e-mailed SEIU that the City had issued a revised
vaccination policy, and that it would issue notices of potential disciplinary action (or
other employment action) to all employees who failed to report their vaccination status
by August 12. The letter the City intended to send to non-compliant employees
threatened “progressive disciplinary action, up to and including termination, or other
employment action.”
On or around August 13, SFMTA rejected an employee’s submission of an
SEIU-created self-attestation form. Unlike the City’s self-attestation form, the form
created by SEIU allowed employees to decline to state their vaccination status and
thereby be treated the same as those disclosing that they were unvaccinated. SFMTA
said the employee must “immediately report your vaccination status in conformity with
the Vaccination Policy.” SFMTA attached the Policy to this e-mail.
On August 23, Isen issued department heads a memorandum stating that the
FDA had fully approved the Pfizer COVID-19 vaccine and set a November 1 deadline
for all City employees to be vaccinated, or sooner for healthcare or High-Risk Setting
employees.

6
On September 10, Philip issued an updated Order that extended the
vaccination deadline for some employees in High-Risk Settings to September 30. The
Order also stated: “Nothing under the Order limits the ability of a Business or
governmental entity under applicable law to determine whether they are unable to
offer a reasonable accommodation to unvaccinated Personnel with an approved
exemption[.]”
On September 15, Isen sent SEIU an “Updated Vaccination Policy” that
required employees “as a condition of employment [to]: (1) report their vaccination
status to the City; and (2) be fully vaccinated and report that vaccination status to the
City no later than either the applicable deadline under the San Francisco Health
Order, if it applies, or 10 weeks after the Federal Food & Drug Administration (FDA)
giv[es] final approval to at least one COVID-19 vaccine (November 1, 2021).” The
Policy stated, “[f]ailure to comply with this Policy may result in disciplinary action, or
non-disciplinary separation from employment for failure to meet the minimum
qualifications of the job.”
On or about September 29, SEIU learned that San Francisco International
Airport management had required employees to sign an acknowledgement form
stating: “I understand that failure to comply with the Policy will result in my separation
from City employment.”
On or about October 7, in response to SEIU’s request for information, a
representative of the City’s Department of Public Health sent SEIU a template letter
entitled “Notice of Proposed Employment Action and Skelly Meeting (Skelly Notice),”8
8 Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 requires that permanent

7
which the City intended to issue to unvaccinated healthcare employees.
On or about October 14, the City’s Human Services Agency required an
employee to sign a “COVID-19 vaccination discussion acknowledgement,” which
includes a paragraph stating: “I understand that complying with the City’s Covid-19
Vaccine Policy is a requirement for my position and a condition of City employment. I
understand that failure to comply with the Policy will result in my separation from City
employment.”
On October 22, Isen issued a letter to all City employees who had not yet
reported their vaccination status or who had reported as unvaccinated. The letter,
titled “October 18 th Deadline to Receive Final Dose of COVID-19 Vaccine,” provided:
“You are receiving this notice because city records reflect
that you have either not yet notified the city of your
COVID-19 vaccination status or you have reported that you
are unvaccinated. Pursuant to the City and County of San
Francisco COVID-19 Vaccination Policy, all city employees
are required to be fully vaccinated by November 1, 2021 (or
on an earlier deadline if required by local health order). In
order to meet the November 1, 2021 deadline, the final day
to receive a final dose of any vaccine was Monday, October
18 th .
“If you have been vaccinated, recently updated your
vaccination status, or believe you have received this notice
in error, please confirm with your department’s human
civil service employees be given notice of significant proposed disciplinary action, the
reasons for the action, a copy of the charges and the materials upon which they are
based, and an opportunity to respond to the charges either orally or in writing before
discipline is imposed. (Id. at p. 215.) A “Skelly hearing” refers to the employee’s
opportunity to respond to the charges and essentially results in a determination of
whether there are reasonable grounds to believe the charges against the employee
are true and support the proposed action. (Cleveland Bd. of Educ. v. Loudermill (1985)
470 U.S. 532, 545-546.)

8
resources representative that your personnel record
accurately reflects your vaccination status. If you have a
pending exemption application, you should also confirm
with your human resources representative that your
personnel record reflects that you are currently
unvaccinated.
“More than 96% of your fellow City Employees are already
vaccinated. Please don’t wait any longer. The health and
wellbeing of City employees, their families, and the public
we serve are top priorities during our response to COVID-
19. The City has repeatedly notified you of this vaccination
requirement. You will receive additional communication
from your department about the process for separation from
your job if you do not comply with the City’s COVID-19
Vaccination Policy.” (Emphasis omitted.)
On October 27, the City issued an amended Policy stating that “[e]mployees
who are not fully vaccinated by November 1, 2021 may not enter the workplace after
that date,” but allowing limited exceptions for partially vaccinated employees when
necessary to “maintain continuity of City operations.”
DISCUSSION
In resolving an appeal of a dismissal, we review OGC’s decision de novo,
applying the same legal standard OGC applied to the allegations in the charge. (City
and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2.) At this stage
of litigation, “the charging party’s burden is not to produce evidence, but merely to
allege facts that, if proven true in a subsequent hearing, would state a prima facie
violation.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) We
thus assume the charging party’s factual allegations are true, and we view them in the
light most favorable to the charging party. (Cabrillo I, supra, PERB Decision No. 2453,
p. 8; Cabrillo Community College District (2019) PERB Decision No. 2622, p. 4

9
(Cabrillo II).) We do not rely on the respondent’s responses if they explicitly or
implicitly create a factual conflict with charging party’s allegations, even if the
respondent’s contrary responses are stated more persuasively or appear as if they
may be backed up by more supporting evidence, when compared to charging party’s
allegations. (Cabrillo I, supra, PERB Decision No. 2453, p. 8; Salinas Valley Memorial
Healthcare System (2012) PERB Decision No. 2298-M, p. 13.) Thus, at this stage of
the case we generally do not resolve conflicting allegations, make conclusive factual
findings, or judge the merits of the dispute. (Cabrillo II, supra, PERB Decision
No. 2622, pp. 4-5; County of Santa Clara, supra, PERB Decision No. 2321-M, p. 12.)
Rather, if there are one or more contested facts (or mixed questions of law and fact)
that could affect the outcome, or there are contested, colorable legal theories, a
complaint should issue, with the disputed issue(s) to be resolved at a formal hearing.
(County of Santa Clara (2022) PERB Decision No. 2820-M, p. 2; Salinas Valley
Memorial Healthcare System, supra, PERB Decision No. 2298-M, p. 13.)
I. 	Decision Bargaining Over Mandatory COVID-19 Vaccination Policy
SEIU’s charge alleged that the City’s decision to adopt the Policy constituted an
unlawful unilateral change. To establish a prima facie case that a respondent
employer made an unlawful unilateral change, a charging party union that exclusively
represents a bargaining unit must prove: (1) the employer changed or deviated from
the status quo; (2) the change or deviation concerned a matter within the scope of
representation; (3) the change or deviation had a generalized effect or continuing
impact on represented employees’ terms or conditions of employment; and (4) the
employer reached its decision without first providing adequate advance notice of the
proposed change to the union and bargaining in good faith over the decision, at the

10
union’s request, until the parties reached an agreement or a lawful impasse.
(Bellflower Unified School District (2021) PERB Decision No. 2796, p. 9 (Bellflower);
County of Merced (2020) PERB Decision No. 2740-M, pp. 8-9 (Merced).)
OGC dismissed the allegation that the City’s decision to adopt the Policy
constituted an unlawful unilateral change on the ground that the decision was outside
the scope of representation.9 Before turning to whether dismissal of that allegation
was proper, we clarify the scope of representation test under the MMBA.
A. 	MMBA Scope of Representation Test
MMBA section 3504 defines the scope of representation as:
“[A]ll matters relating to employment conditions and
employer-employee relations, including, but not limited to,
wages, hours, and other terms and conditions of
employment, except, however, that the scope of
representation shall not include consideration of the merits,
necessity, or organization of any service or activity provided
by law or executive order.”
The California Supreme Court has interpreted this provision in four critical
cases. Despite repeatedly acknowledging that the Legislature intended section 3504
to incorporate into the MMBA the scope of representation jurisprudence under
section 8(d) of the National Labor Relations Act (NLRA),10 these decisions
nonetheless have created confusion about the applicable test. We discuss the
9 As noted ante, the complaint alleged that the City unlawfully implemented the
mandatory COVID-19 vaccination policy without giving SEIU an opportunity to meet
and confer over the policy’s effects on subjects within the scope of representation.
10 The NLRA is codified at 29 U.S.C. § 151 et seq. NLRA section 8(d) is
codified at 29 U.S.C. § 158, subdivision (d).

11
evolution of this uncertainty before clarifying the scope of representation test in a way
that harmonizes these decisions.
The Court first considered section 3504 in Fire Fighters Union v. City of Vallejo
(1974) 12 Cal.3d 608. There, the Court observed that section 3504 directly borrows
from the NLRA in mandating negotiations over “wages, hours, and other terms and
conditions of employment,” and further noted that the second half of section 3504
borrows from “federal precedents under the NLRA.” (Id. at pp. 615-616.)
The Court reiterated these points in Building Material & Construction
Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651 (Building Material):
“the phrase ‘wages, hours, and other terms and conditions
of employment’ was taken directly from the [] NLRA (29
U.S.C. § 158(d)). Although the NLRA does not contain
wording similar to the second key phrase in section 3504—
which excepts the ‘merits, necessity, or organization’ of
government services from the scope of representation—this
phrase was added by the Legislature to incorporate the
limitations on the scope of mandatory bargaining that had
been developed by the federal courts. Thus, because the
federal precedents reflect the same interests as those
underlying section 3504, they furnish reliable authority in
construing that section.”
(Building Material, supra, 41 Cal.3d at p. 658, citations omitted.)
In setting forth the MMBA’s scope of representation test, Building Material cited
with approval First National Maintenance Corp. v. NLRB (1980) 452 U.S. 666 (First
National). (Building Material, supra, 41 Cal.3d at p. 660.) There, the United States
Supreme Court delineated three categories of employer decisions for purposes of
determining whether a decision is within the NLRA’s scope of representation:
“Some management decisions, such as choice of
advertising and promotion, product type and design, and

12
financing arrangements, have only an indirect and
attenuated impact on the employment relationship.
[Citation.] Other management decisions, such as the order
of succession of layoffs and recalls, production quotas, and
work rules, are almost exclusively ‘an aspect of the
relationship’ between employer and employee. [Citation.]
The present case concerns a third type of management
decision, one that had a direct impact on employment,
since jobs were inexorably eliminated by the termination,
but had as its focus only [economic profitability of a
contract], a concern under these facts wholly apart from the
employment relationship.”
(First National, supra, 452 U.S. at pp. 676-677.) Following this framework, Building
Material held that if an employer decision falls in the third category, the employer must
bargain the decision (rather than merely the effects thereof) only if its “need for
unencumbered decisionmaking in managing its operations is outweighed by the
benefit to employer-employee relations of bargaining about the action in question.”
(Building Material, supra, 41 Cal.3d at p. 660.)
Notably, Building Material involved a transfer of work from bargaining unit
employees to non-unit employees. Citing federal transfer-of-work cases, the Court
observed that “[i]t is clear that the permanent transfer of work away from a bargaining
unit often has a significant effect on the wages, hours, and working conditions of
bargaining-unit employees.” (Building Material, supra, 41 Cal.3d at p. 659.) The Court
went on to note that, under this same federal transfer-of-work precedent, “[t]he
employer is required to bargain . . . only if the work transfer adversely affects the
bargaining unit in question.” (Ibid.)11 The Court then discussed several cases where it
11 For the adverse effect requirement, the Court cited Road Sprinkler Fitters
Local Union No. 669, United Ass’n of Journeymen and Apprentices of the Plumbing

13
was necessary to determine whether a transfer of bargaining unit work to non-unit
workers adversely affected the bargaining unit. (Id. at pp. 660-662.) The Court
ultimately concluded that the transfer of work in the case before it adversely affected
the bargaining unit and that the employer failed to show the decision to transfer the
work was a fundamental policy decision that would exclude it from the scope of
representation. (Id. at pp. 662-664.)
In its third decision interpreting section 3504, Claremont Police Officers Assn. v.
City of Claremont (2006) 39 Cal.4th 623 (Claremont), the Court reiterated that Building
Material defined the “applicable test” under First National’s third category, i.e., when “a
fundamental decision significantly affects the terms and conditions of employment.”
(Id. at pp. 635-637.) The Court then summarized the test it would apply to the category
three decision before it:
“First, we ask whether the management action has ‘a
significant and adverse effect on the wages, hours, or
working conditions of the bargaining-unit employees.’ . . . If
not, there is no duty to meet and confer. . . . Second, we
ask whether the significant and adverse effect arises from
the implementation of a fundamental managerial or policy
decision. If not, then . . . the meet-and-confer requirement
applies. . . . Third, if both factors are present . . . we apply a
balancing test. The action ‘is within the scope of
representation only if the employer’s need for
and Pipefitting Industry of the U.S. and Canada, AFL-CIO etc. v. NLRB (D.C. Cir.
1982) 676 F.2d 826, 833-834 [addressing transfer of work from bargaining unit to
employer’s non-unionized workers]; Office and Professional Emp. Intern. Union, Local
425, AFL-CIO v. NLRB (D.C. Cir. 1969) 419 F.2d 314, 321 [transfer of auditing work to
non-unit workers]; and International Union, United Auto., Aerospace and Agr.
Implement Workers of America v. NLRB (D.C. Cir. 1967) 381 F.2d 265, 266
[contracting out “had an adverse impact on the bargaining unit since it diminished by
six the whole number of jobs performed by its members”].)

14
unencumbered decisionmaking in managing its operations
is outweighed by the benefit to employer-employee
relations of bargaining about the action in question.’”
(Id. at p. 638, citations omitted.)
Unlike Building Material, Claremont was not a transfer-of-work case. Rather, it
involved a requirement that police officers fill out a pre-printed form with questions
about the driver’s “race/ethnicity” after each traffic stop. (Claremont, supra, 39 Cal.4th
at p. 629.) Although federal precedent requires consideration of whether a decision
has a significant and adverse effect on the bargaining unit only in transfer-of-work
cases, Claremont, without explanation, imposed a “significant and adverse effect”
requirement on all third category decisions. (Id. at p. 638.)12
Five years after Claremont, the Court issued its most recent decision
interpreting section 3504, International Assn. of Fire Fighters, Local 188, AFL-CIO v.
12 Claremont’s “significant and adverse effect” requirement is anomalous
because no other California public sector labor relations statute requires the finding of
such an effect before balancing the union’s and employer’s interests. (Compare San
Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850,
858-859 [affirming PERB’s test for determining whether unenumerated subjects are
within the scope of representation under the Educational Employment Relations Act
(Gov. Code, § 3540 et seq.): “[A] subject is negotiable even though not specifically
enumerated if (1) it is logically and reasonably related to hours, wages or an
enumerated term and condition of employment, (2) the subject is of such concern to
both management and employees that conflict is likely to occur and the mediatory
influence of collective negotiations is the appropriate means of resolving the conflict,
and (3) the employer’s obligation to negotiate would not significantly abridge his
freedom to exercise those managerial prerogatives (including matters of fundamental
policy) essential to the achievement of the District’s mission”].) This is just the type of
anomaly the California Supreme Court has recognized should not be part of “a
coherent and harmonious system of public employment relations laws.” (Coachella
Valley Mosquito and Vector Control Dist. v. California Public Employment Relations
Bd. (2005) 35 Cal.4th 1072, 1089-1090.)

15
Public Employment Relations Bd. (2011) 51 Cal.4th 259 (Richmond Firefighters). The
Court reiterated that First National defines how to approach the three categories of
employer decisions:
“In relation to mandatory subjects of bargaining under the
federal NLRA, the United States Supreme Court has
identified three categories of management decisions. [citing
First National, supra, 452 U.S. at pp. 676–680.] In the first
category are decisions that ‘have only an indirect and
attenuated impact on the employment relationship’ and thus
are not mandatory subjects of bargaining. (Id. at
p. 677[].) Examples of decisions in this category are ‘choice
of advertising and promotion, product type and design, and
financing arrangements.’ (Id. at pp. 676–677[].)
“In the second category are decisions directly defining the
employment relationship, such as wages, workplace rules,
and the order of succession of layoffs and recalls.
Decisions in this second category are always mandatory
subjects of bargaining. [citing First National, supra, 452
U.S. at p. 677.]
“In the third category are management decisions that
directly affect employment, such as eliminating jobs, but
nonetheless may not be mandatory subjects of bargaining
because they involve ‘a change in the scope and direction
of the enterprise’ or, in other words, the employer’s
‘retained freedom to manage its affairs unrelated to
employment.’ [citing First National, supra, 452 U.S. at
p. 677.] Bargaining is not required for decisions in this
category if they do not raise an issue that is ‘amenable to
resolution through the bargaining process’ (id. at p. 678
[]), although the employer is normally required to bargain
about the results or effects of such decisions (id. at p. 677
[]). To determine whether a particular decision in this third
category is within the scope of representation, the high
court prescribed a balancing test, under which ‘in view of an
employer’s need for unencumbered decisionmaking,
bargaining over management decisions that have a
substantial impact on the continued availability of

16
employment should be required only if the benefit, for labor-
management relations and the collective-bargaining
process, outweighs the burden placed on the conduct of the
business.’ (Id. at p. 679 [].)”
(Richmond Firefighters, supra, 51 Cal.4th at pp. 272-273.) The Court did not, however,
attempt to reconcile the First National framework with Claremont, instead citing
Claremont only for general propositions about the MMBA’s duty to meet and confer
over subjects within the scope of representation. (Id. at pp. 271-272.)
Against the backdrop of the California Supreme Court’s four decisions
interpreting section 3504, we decided County of Orange (2018) PERB Decision
No. 2594-M (Orange). There, we noted that Richmond Firefighters and decades of
labor law precedent contextualize Claremont, dictating that its “significant and
adverse” standard applies only as part of the balancing test in category three cases,
because category two decisions—those that “directly defin[e] the employment
relationship”—must be bargained even if they are not adverse to bargaining unit
members. (Id. at p. 19 [for example, an employer cannot increase wages or benefits
without bargaining, even though such a change has no adverse impact on
employees], citing NLRB v. Katz (1962) 369 U.S. 736, 743; Ruline Nursery Co. v.
Agricultural Labor Relations Bd. (1985) 169 Cal.App.3d 247, 266; Modesto City
Schools (1983) PERB Decision No. 291, pp. 47-48.) Although we recognized this
limitation on Claremont’s application, we did not explicitly delineate a post-Richmond
Firefighters scope of representation test.
Earlier this year, County of Sonoma v. Public Employment Relations Board
(2022) 80 Cal.App.5th 167 (Sonoma) considered an employer’s duty to bargain over
decisions falling into the third Richmond Firefighters category. The Sonoma court

17
remanded the matter to PERB to apply the balancing test that governs category three
decisions, including to assess whether the charging parties had proven that one or
more of the changes significantly and adversely affected bargaining unit members’
wages, hours, or other terms or conditions of employment. (Sonoma, supra,
80 Cal.App.5th at pp. 185, 193.) To the extent Sonoma suggested that Claremont
applies to category two decisions—those that “directly defin[e] the employment
relationship”—any such suggestion was dicta as neither party challenged on appeal
PERB’s conclusion that the changes at issue fell within category three.13 In any event,
we are bound to follow the California Supreme Court’s latest formulation of the MMBA
scope of representation test in Richmond Firefighters, which unequivocally declares
that all category two decisions fall within the scope of representation.
In light of the confusion the above decisions engendered, we clarify the scope
of representation test under the MMBA. In determining whether an employer’s
decision is within the scope of representation under MMBA section 3504, we first
determine which of the three categories of managerial decisions identified in
Richmond Firefighters the decision falls into: (1) “decisions that ‘have only an indirect
and attenuated impact on the employment relationship’ and thus are not mandatory
subjects of bargaining,” such as advertising, product design, and financing;
(2) “decisions directly defining the employment relationship, such as wages, workplace
rules, and the order of succession of layoffs and recalls,” which are “always mandatory
13 The same is true of other post-Richmond Firefighters decisions applying
Claremont to category three changes. (E.g., Association of Orange County Deputy
Sheriffs v. County of Orange (2013) 217 Cal.App.4th 29, 40-46.)

18
subjects of bargaining”; and (3) “decisions that directly affect employment, such as
eliminating jobs, but nonetheless may not be mandatory subjects of bargaining
because they involve ‘a change in the scope and direction of the enterprise’ or, in
other words, the employer’s ‘retained freedom to manage its affairs unrelated to
employment.’” (Orange, supra, PERB Decision No. 2594-M, p. 18, quoting Richmond
Firefighters, supra, 51 Cal.4th at pp. 272-273.)
When a decision falls into the third category, we first determine whether the
decision has “a significant and adverse effect on the wages, hours, or working
conditions of the bargaining-unit employees” that “arises from the implementation of a
fundamental managerial or policy decision.”14 (Claremont, supra, 39 Cal.4th at p. 638;
Orange, supra, PERB Decision No. 2594-M, pp. 19-20.) If both requirements are met,
we determine whether “the employer’s need for unencumbered decisionmaking in
managing its operations is outweighed by the benefit to employer-employee relations
of bargaining about the action in question.” (Claremont, supra, 39 Cal.4th at p. 638;
Orange, supra, PERB Decision No. 2594-M, pp. 17, 19-20.)15
14 In most cases, the considerations that lead to placing the decision in category
three will easily satisfy these requirements. (See Claremont, supra, 39 Cal.4th at
p. 637, quoting First National, supra, 452 U.S. at p. 677 [recognizing that category
three decisions have “a direct impact on employment” though the decision is “‘not in
[itself] primarily about conditions of employment. . . . ’”].) Nonetheless, there may be
cases where one or both requirements are not obviously satisfied and the analysis will
need to be conducted.
15 Like federal precedent, we continue to apply subject-specific standards for
subcontracting, a recurrent category three decision. (City of Glendale (2020) PERB
Decision No. 2694-M, pp. 44-45 & fn. 22.) These subcontracting standards implement
the overall balancing test by defining when the benefits of bargaining outweigh the
burden placed on management, including by defining when a change reduces a unit’s

19
By harmonizing Richmond Firefighters and Claremont in this way, we preserve
longstanding precedent requiring negotiations over changes that directly define the
employment relationship regardless of whether the change is detrimental or beneficial
to bargaining unit employees, while giving effect to the California Supreme Court’s
decisions interpreting MMBA section 3504.
B. 	The City’s Mandatory COVID-19 Vaccination Policy
Here, absent an evidentiary record, we cannot determine the outcome of the
MMBA scope of representation test outlined ante. This is true, in part, because our
precedent to date does not include any categorical rule covering all employer
decisions regarding vaccination.
In Regents of the University of California (2021) PERB Decision No. 2783-H
(Regents), we found that a mandatory influenza vaccination policy issued before a
COVID-19 vaccine was available was not within the scope of representation. In
dismissing SEIU’s decision bargaining allegation, OGC found the City’s Policy
similarly outside the scope of representation. In the partial dismissal letter, OGC
highlighted that the Regents Board reached this conclusion because “the need to
protect public health was not amenable to collective bargaining or, alternatively,
bargaining power and thereby significantly and adversely affects wages, hours, or
terms and conditions of employment. (Ibid.) Like the National Labor Relations Board,
we have noted that these standards promote consistency and predictability by
obviating the need to “reinvent the wheel” and assess what types of facts are
important each time we resolve a subcontracting case. (Id. at p. 45, fn. 22.) The same
is true for PERB’s subject-specific test that applies when an employer transfers work
from one group of its employees to another such group. (Id. at pp. 38-39, fn. 19.)
Absent such consistent standards, employers would not know in advance whether the
law requires it to bargain a decision.

20
outweighed the benefits of bargaining over the policy as to University employees.” (Id.
at pp. 2-3.) OGC found this “same reasoning applies with equal, if not greater, force in
the present case over a COVID-19 vaccine mandate.”
SEIU points to several reasons why OGC should not have dismissed the
decision bargaining allegation based on Regents, supra, PERB Decision No. 2783-H.
First, SEIU contends Regents’ holding was based on the particular facts of that case
and did not hold that mandatory vaccination policies are always outside the scope of
representation. SEIU points to the “unprecedented circumstances” that existed at the
time, including the lack of COVID-19 vaccines, and a “potential confluence of the
COVID-19 global pandemic and an outbreak of the influenza virus [that could cause]
catastrophic outcomes and needless loss of life.” (Regents, supra, PERB Decision
No. 2783-H, p. 25.)16
Second, SEIU notes that the mandatory vaccination policy at issue in Regents
was more than a mere work rule because it applied not only to employees but to “all
individuals who work, live, or study on University premises.” (Regents, supra, PERB
Decision No. 2783-H, p. 26.) Here, although parts of the Policy tracked the various
iterations of the Health Officer’s Order (which applied to both private and public
16 In Regents, the Board had the benefit of expert witness testimony which gave
insight into the rationale behind the decision, in particular the potential for significant
negative impacts on public health if COVID-19 and influenza patients overwhelmed
the University’s healthcare facilities. (Regents, supra, PERB Decision No. 2783-H,
p. 25.) This evidence supported the conclusion that “requiring the University to
negotiate the decision to require influenza vaccination would abridge its right to
determine public health policy during a pandemic.” (Ibid.)

21
employers within the City), other parts of the Policy were unique to City employees.17
Third, SEIU argues that, unlike in Regents, the City adopted its Policy once
COVID-19 vaccines became widely available. As courts have recognized, “the
[COVID-19] pandemic has been ‘dynamic’ and constantly evolving.” (Western Growers
Assn. v. Occupational Safety and Health Standards Bd. (2021) 73 Cal.App.5th 916,
940.) Thus, while the City adopted its Policy only one year after the University’s
adoption of the policy in Regents, SEIU asserts that circumstances may have changed
significantly enough in that year to warrant a different conclusion on the scope of
representation issue.
Based on the facts alleged in the charge, we cannot say as a matter of law that
SEIU cannot overcome Regents. Rather, these arguable legal and factual disputes
weigh in favor of issuing a complaint on the decision bargaining allegation. (See
County of Santa Clara, supra, PERB Decision No. 2820-M, p. 2 [if there are one or
more contested facts (or mixed questions of law and fact) that could affect the
outcome, or there are contested, colorable legal theories, a complaint should issue,
with the disputed issue(s) to be resolved at a formal hearing].)
17 SEIU argues that the decision was within the scope of representation
because the City used the threat of discipline to enforce compliance with the Policy.
As we found in Regents, supra, PERB Decision No. 2783-H, the disciplinary
consequences of failure to comply with a mandatory vaccination policy are negotiable
as effects, even if the underlying decision itself is outside the scope of representation.
(Id. at p. 28; see County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 18-22
[rules that are primarily about investigation and discipline are subject to decision
bargaining, but even when a rule is primarily about public safety, such as one
involving law enforcement officers’ use of force, disciplinary issues are still subject to
effects bargaining].)

22
Additionally, although not addressed in the partial dismissal letter, by alleging in
the complaint that the City failed to bargain over the effects of adding COVID-19
vaccination to the minimum qualifications in City job descriptions, OGC implicitly
dismissed the allegation that the City was obligated to meet and confer over the
decision to make that change. Changes to job specifications, including qualifications,
“are within the scope of representation unless the changes at issue do no more than is
required to comply with an externally-imposed change in the law.” (County of
Sacramento (2020) PERB Decision No. 2745-M. p. 17; see County of Orange (2019)
PERB Decision No. 2663-M, p. 15 [minimum qualifications are typically within the
scope of representation].) Based on the allegations in the charge, it is not clear that
this change was necessary “to comply with an externally-imposed change in the law.”
A complaint therefore should issue on this allegation as well.
II. 	Mandatory Disclosure of COVID-19 Vaccination Status as Unilateral Change
SEIU’s charge alleged that, on June 23, the City issued its final Policy that
required employees to disclose “their vaccination status under penalty of perjury” by
July 29. In listing the remedies sought, SEIU said “PERB should order the City and
SFMTA to cease and desist from in anyway enforcing its unilaterally adopted July 29,
2021 mandate to disclose one’s vaccination status.” (Italics added.) OGC dismissed
this allegation on the grounds that PERB does not enforce laws governing employees’
privacy and that questions about employees’ vaccination status do not implicate their
rights under the MMBA. On appeal, SEIU argues that OGC misconstrued this
allegation and should have analyzed it as a unilateral change. We agree.
There are three primary types of policy changes that may constitute an unlawful
unilateral change: (1) a deviation from the status quo set forth in a written agreement

23
or written policy; (2) a change in established past practice; and (3) a newly created
policy or application or enforcement of existing policy in a new way. (Merced, supra,
PERB Decision No. 2740-M, p. 9.) Prior to July 29, the City did not require employees
to disclose whether or not they were vaccinated against COVID-19. On and after
July 29, employees were required to disclose their vaccination status under threat of
discipline. SEIU’s charge thus clearly alleged that the City changed or deviated from
the status quo by creating a new policy requiring employees to reveal their vaccination
status where previously there had been no such policy. (Bellflower, supra, PERB
Decision No. 2796, p. 10.) Further, in light of our conclusion that there are contested,
colorable legal theories as to whether the Policy falls within the scope of
representation, the same is true of the City’s disclosure requirement.18 From the
charge allegations, it is clear that this new policy had a continuing impact on
bargaining unit members and that the City did not give SEIU notice or an opportunity
to meet and confer before adopting the policy. Because the charge established a
prima facie case of a unilateral change violation, a complaint must issue on this
allegation.
III. 	Direct Dealing with Employees Regarding Mandatory Disclosure of
COVID-19 Vaccination Status
SEIU’s appeal argues that the City’s decision to require employees to disclose
their COVID-19 vaccination status also constituted unlawful direct dealing with
employees. While SEIU did not plead this particular legal theory in its charge, “OGC
18 As discussed at footnote 17 ante, even if a vaccination requirement is
ultimately deemed outside the scope of representation, disciplinary issues are still
subject to effects bargaining.

24
must issue a complaint based on all legal theories for which the alleged facts state a
prima facie case, even if a charging party has neglected to assert one or more
colorable theories.” (County of Santa Clara, supra, PERB Decision No. 2820-M, p. 2,
fn. 2.) The charge allegations, however, do not establish a prima facie case of direct
dealing with regard to mandatory disclosure of vaccination status.
There are two alternate means of establishing a direct dealing or bypassing
violation. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 14 & fn. 9.)
First, an employer violates the duty to bargain in good faith if it directly approaches
employees to effect a change in terms or conditions of employment within the scope of
representation. (Walnut Valley Unified School District (1981) PERB Decision No. 160,
p. 4.) Thus, a charging party may demonstrate unlawful bypassing by showing that the
employer dealt directly with its employees (1) to create a new policy of general
application, or (2) to obtain a waiver or modification of existing policies applicable to
those employees. (Id. at p. 6.) Second, an employer may not communicate directly
with employees to undermine or derogate a union’s exclusive authority to represent
unit members. (Muroc Unified School District (1978) PERB Decision No. 80,
pp. 19-20.)
The charge does not allege that the City approached any employees to obtain a
waiver or modification of an existing policy. Nor does it allege that the City approached
employees with a proposal for a new vaccination disclosure policy without first
presenting such a proposal to SEIU. (Petaluma City Elementary School District/Joint
Union High School District (2016) PERB Decision No. 2485, p. 31.) Rather, the charge
allegations show that the City presented the new vaccination disclosure policy to
employees (and to SEIU) as a fait accompli. Therefore, the allegations in the charge

25
fail to establish a prima facie case of direct dealing and we affirm the dismissal of this
allegation.
IV. 	Interference with Protected Activity
SEIU’s charge alleged that the City interfered with MMBA-protected rights when
it insisted that employees use only a City-created vaccination ascertainment form and
refused to accept an SEIU-created alternate form. A prima facie case of interference,
coercion or restraint exists where the respondent’s conduct would reasonably tend to
or did in fact result in at least slight harm to protected rights. (City of Commerce (2018)
PERB Decision No. 2602-M, p. 3; Santee Elementary School District (2006) PERB
Decision No. 1822, pp. 10-11.) Under this test, a violation may only be found if the
pertinent PERB-administered statute, in this case the MMBA, guarantees the right(s)
allegedly interfered with. (Hartnell Community College District (2018) PERB Decision
No. 2567, p. 5; Regents of the University of California (2006) PERB Decision
No. 1804-H, adopting warning letter at p. 5.)
The MMBA grants employees “the right to form, join, and participate in the
activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations.” (§ 3502.) While
employees’ use of a vaccination ascertainment form created by their union may qualify
as MMBA-protected activity, SEIU’s appeal states that the outcome of its interference
claim turns on whether the City took unilateral action on a matter within the scope of
representation. We therefore find it amounts to a derivative interference claim. (County
of San Joaquin (2021) PERB Decision No. 2761-M, p. 18 [PERB finds an interference
claim to be “independent” or “derivative” depending on whether a charging party can
prove it without proving any other claim].)

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In the complaint, OGC alleged that the City did not complete effects bargaining
before it issued “various mandates” in June through October 2021, and that this
conduct violated the duty to meet and confer in good faith and derivatively interfered
with protected rights. Once OGC amends the complaint to allege a failure to bargain
over these decisions, it will adequately address SEIU’s derivative interference claim.
ORDER
The Board AFFIRMS in part and REVERSES in part the Office of the General
Counsel’s partial dismissal in Case No. SF-CE-1884-M, and REMANDS the case to
the Office of the General Counsel for issuance of an amended complaint consistent
with this Decision. All other allegations in Case No. SF-CE-1884-M that are not
included in the amended complaint arising from this Order are DISMISSED WITHOUT
LEAVE TO AMEND.19
Chair Banks and Members Krantz and Paulson joined in this Decision.
19 To be clear, we intend that the amended complaint include both the
allegations remanded by this Decision and the allegations contained in the original
complaint.