Kern County Hospital Authority (PERB 2847M)

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 521,
Charging Party,
v.
KERN COUNTY HOSPITAL AUTHORITY,
Respondent.
Case No. LA-CE-1451-M
PERB Decision No. 2847-M
December 20, 2022
Appearances: Weinberg, Roger & Rosenfeld by Kerianne Steele and Corey Kniss,
Attorneys, for Service Employees International Union, Local 521; Karen Barnes, Vice
President and General Counsel, and Liebert Cassidy Whitmore by Adrianna Guzman
and Anni Safarloo, Attorneys, for Kern County Hospital Authority.
Before Shiners, Krantz, and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on both parties’ exceptions to a proposed decision of an
administrative law judge (ALJ). The ALJ found that Respondent Kern County Hospital
Authority violated the Meyers-Milias-Brown Act (MMBA) when it claimed a categorical
right not to process group, class, and consolidated grievances, thereby creating a new
policy, or enforcing or applying an existing policy in a new way, without affording
Charging Party Service Employees International Union, Local 521 (SEIU) notice and
an opportunity to bargain.1
1 The MMBA is codified at Government Code section 3500 et seq.
Undesignated statutory references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

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The Authority excepts to certain liability conclusions in the proposed decision.
SEIU excepts to the ALJ’s proposed remedy, claiming the Authority should provide
notice of this decision to all employees, rather than only to employees SEIU
represents. As explained below, the Authority has not shown any error affecting the
outcome and SEIU has not shown cause to adjust the ALJ’s remedy. We therefore
affirm the proposed decision.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to July 1, 2016, the County of Kern operated Kern Medical, a health care
network including an acute care hospital, primary care clinics, and specialty clinics.
(County of Kern and Kern County Hospital Authority (2019) PERB Decision
No. 2659-M, pp. 3-6 & adopting proposed decision at pp. 3, 9-12, 17-18.) On July 1,
2016, the Authority began operating Kern Medical as the County’s legal successor.
(Id. at pp. 1-3 & adopting proposed decision at p. 1; Kern County Hospital Authority
Act, Health & Safety Code section 101852 et seq. (KCHAA).) At that time, the
Authority became the employer of Kern Medical’s employees.
SEIU has exclusively represented multiple Kern Medical bargaining units at all
relevant times, both before and after the Authority took over operations from the
County. At the time of the transfer of control, the County and SEIU were parties to a
memorandum of understanding (MOU) effective March 2015 to August 2017. The
KCHAA required the Authority to extend the MOU for up to 24 months following the
transfer unless the Authority and SEIU mutually agreed otherwise. (Health & Saf.
Code, § 101853.1, subd. (d).) The MOU therefore continued in effect until July 2018.
The Authority and SEIU ultimately negotiated a successor MOU effective from

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September 2018 through October 2020.
I. 	The MOU’s Grievance and Arbitration Procedures
Article VIII of the parties’ MOU, which details grievance and arbitration
procedures, remained unchanged from the 2015-2018 MOU to the 2018-2020 MOU.
Article VIII included the following relevant provisions.
Section B defines a grievance as a “complaint by an employee, alleging a
violation of this MOU, rules and regulations or policies governing personnel practices
and working conditions” or when “[an] employee believes an injustice has been done
because of an unfair application or deviation from a departmental policy.”
Section C excludes from the grievance and arbitration procedure any grievance
filed more than 20 days after an employee knew of the occurrence, disputes involving
bargaining impasses, and disputes concerning performance evaluations, certain
disciplinary matters and work assignments, as well as classification and salary
decisions.
Section E lists various “rights and restrictions.” Among these are “the right of
any employee to present a grievance individually” and the right to “have a
representative present at all steps of the grievance procedure,” provided the
representative is “from within a recognized employee organization” and the
representative’s identity is “made known to management prior to a scheduled
grievance meeting.” Section E also guarantees employees the right to reasonable
leave for processing a grievance. This provision does not distinguish between an
employee as a grievant and an employee acting as a union representative.
Section E.7 provides: “Grievances of an identical nature concerning the same

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subject matter may be consolidated.” Beyond this sentence, Article VIII says nothing
about grievances involving more than one employee. The record includes no evidence
of bargaining history or discussion in subsequent negotiations of the consolidation
provision in Section E.7, the definition of a grievance, or the rights, restrictions, and
exclusions found in Article VIII.
Sections F and G include a multi-step process for informal and formal grievance
resolution. Following the third step, an employee who is not satisfied with the
Authority’s resolution of a grievance may “submit the grievance through the Union to
arbitration.” If SEIU decides not to advance a dispute to arbitration, “the employee
shall have no independent right to advance the matter to arbitration.”
Section H governs the last step of the process, arbitration. It refers to “the
parties” without defining the term. For example, Sections H.1 and H.2 provide that if
“the parties” are unable to resolve a dispute at prior steps of the process, “the parties”
may select an arbitrator by alternately striking names from a list. Section H.6 makes
the arbitrator’s decision binding on “all parties,” while separately referring to “the
grievant” in defining a limit on the amount of back pay owed. The first sentence of
Section H.7 requires “the Authority and the grievant” to split the arbitrator’s fee, while
the second sentence of this section states: “Each party shall bear its own costs
relating to arbitration, including but not limited to, witness fees, transcriptions and
attorney fees.”
II. 	Evidence of Group, Class, and Consolidated Grievances from 2015-2019
The record includes evidence of four grievances in which SEIU and/or
bargaining unit employees pursued group, class, or consolidated grievances against

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the County and/or the Authority: (1) the Kane grievance, which SEIU filed with the
County in 2015 on behalf of an SEIU bargaining team member and other unnamed
employees; (2) the Venegas grievance, which SEIU steward Encarnacion Venegas
filed in April 2016 on behalf of himself and several other affected Kern Medical
employees; (3) the Lerdo grievance, which consisted of a letter signed by nine SEIU-
represented employees, presented by SEIU staff to the Authority in August 2018; and
(4) the Halsell grievance, signed by Nancy Halsell and 22 other employees, which
SEIU presented to the Authority in July 2019.
In only one of these four cases does the record reflect that the County or the
Authority addressed SEIU’s ability to pursue a group, class, or consolidated grievance.
Specifically, in responding to the Lerdo grievance, Authority Vice President of Human
Resources Lisa Hockersmith wrote SEIU as follows:
“Although the Memorandum of Understanding (MOU) does
not expressly authorize the filing of group grievances, we
recognize that it does allow grievances alleging similar facts
to be consolidated. Accordingly, we are treating this ‘group’
grievance as SEIU’s request to consolidate what would
otherwise be individually filed grievances.”
Hockersmith closed this grievance response by asserting that SEIU needed to supply
further information about the misconduct alleged.
At all relevant times, SEIU used a software database to track grievances, and
the union labeled each grievance in the database as “individual,” “group,” or “class.”
Ronald Hansen, who worked as a paid SEIU staff member from August 2015 until
February 2021, testified that the “group” designation meant a grievance signed onto
by more than one named employee, while the “class” designation meant a grievance
SEIU filed on behalf of unnamed employees usually identified by a description, such

6
as all employees affected by a particular policy. However, the record includes no
evidence that SEIU discussed these designations with the County or the Authority.
Moreover, the record reflects that the parties often used the terms “group,” “class,”
and “consolidated” in such an overlapping manner that it is not possible to delineate
clear boundaries between these terms.
III. 	The Alleged Unilateral Change
In January 2019, SEIU filed a grievance on behalf of Eva-Marie Dominguez, a
technician at Kern Medical. The grievance concerned Dominguez’s four-day absence
from work and whether the Authority should count these days as paid time off or
deduct the time from a different leave bank. In January 2020, shortly before a
scheduled arbitration of the Dominguez grievance, SEIU sought to amend the
grievance by adding at least four other employees whom it alleged were similarly
situated to the grievant. In a letter dated January 13, 2020, the Authority opposed
SEIU’s requested amendment. The Authority focused its opposition on two alternative
grounds, claiming that: (1) the MOU bars group or class grievances altogether and
permits consolidated grievances only by mutual agreement, meaning the Authority had
discretion to refuse all group, class, and consolidated grievances; and (2) in any
event, SEIU had waited so long to amend its grievance that the Authority would be
prejudiced by the amendment.
SEIU counsel responded the next day. She asserted that the Authority’s
position on group, class, and consolidated grievances was a unilateral change that
had a significant impact on the SEIU bargaining units and might give rise to an unfair
practice charge. SEIU thereafter withdrew its request to amend its grievance and

7
asserted that if the arbitrator sustained the grievance, then SEIU would argue for
including similarly situated employees as part of the remedy. However, the arbitrator
denied the grievance on its merits, thereby ending the arbitration process.
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
However, to the extent that a proposed decision has adequately addressed issues
raised by certain exceptions, the Board need not further analyze those exceptions.
(Ibid.) The Board also need not address alleged errors that would not affect the
outcome. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
In its exceptions, the Authority argues that SEIU untimely filed its charge, did
not prove a prima facie case, and waived its right to bargain over processing of group,
class, and consolidated grievances. Although the proposed decision adequately
addressed these issues, we summarize and supplement the ALJ’s analysis on the
most critical points. Lastly, we address SEIU’s contentions about the proper remedy.2
I. 	The Authority’s Statute of Limitations Defense
Absent a recognized exception, PERB cannot issue a complaint with respect to
any charge based upon an alleged unfair practice occurring more than six months
prior to the filing of the charge. (Coachella Valley Mosquito and Vector Control Dist.
2 The parties’ exceptions leave several parts of the proposed decision
unchallenged, including the ALJ’s conclusions that: (1) the record did not prove a
“regular and consistent” or “historic and accepted” practice of allowing or prohibiting
group, class, or consolidated grievances; and (2) an employer’s unilateral change
derivatively interferes with union and employee rights. These issues are therefore not
before us.

8
v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077.) Before a
complaint issues, a charging party bears the burden to allege facts that would, if
proven, establish timeliness. (Los Angeles Unified School District (2014) PERB
Decision No. 2359, pp. 3, 30.) After a complaint issues, a respondent bears the
burdens of pleading untimeliness as an affirmative defense in its answer, and then
proving that the statute of limitations bars the charge. (Id. at p. 30.)
The limitations period begins to run on the date the charging party knew, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community
College District (1996) PERB Decision No. 1177, p. 4.) The limitations period for a
unilateral change allegation begins to run when the charging party has actual or
constructive notice of the respondent’s clear intent to implement the change in policy,
provided there is no conduct after that date evincing a wavering of such intent.
(Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H,
p. 16.)
The Authority contends that Hockersmith’s 2018 response to the Lerdo
grievance put SEIU on notice about the Authority’s position on group, class, and
consolidated grievances, and that no evidence indicated its position subsequently
wavered. However, as noted above, the Authority evaluated the Lerdo grievance on its
merits rather than rejecting it on procedural grounds. Hockersmith did comment on the
procedural posture of the grievance, labeling it as a “‘group’ grievance” and stating
that while the MOU “does not expressly authorize the filing of group grievances, we
recognize that it does allow grievances alleging similar facts to be consolidated.” This
language, however, did not state a firm position on group, class, or consolidated

9
grievances, but merely described what Article VIII does and does not say. Contrary to
the Authority’s argument, Hockersmith’s 2018 grievance response did not assert a
categorical right to reject group, class, or consolidated grievances. Instead, we find it
was too ambiguous to put SEIU on notice that the Authority believed SEIU had no
right to file or pursue a grievance seeking relief for multiple employees.
The Authority’s decision to evaluate the Lerdo grievance on its merits not only
highlighted the ambiguity of Hockersmith’s 2018 grievance response, but also evinced
a wavering of intent. The Authority evidenced further wavering of intent in 2019 when
it processed the Halsell grievance on its merits without objecting to it as a group
grievance or even mentioning that 23 employees signed the grievance. Thus,
Hockersmith’s grievance response, particularly when seen in light of other group,
class, or consolidated grievances that the County and/or the Authority processed
before and after the Lerdo grievance, lent itself to a reasonable belief that SEIU had
the right to have the Authority consider the merits of such grievances. The Authority’s
January 2020 statement, however, stood in stark contrast, stating that SEIU could only
pursue such an approach with the Authority’s approval.
For the foregoing reasons, Hockersmith’s response to the Lerdo grievance does
not prove that SEIU knew or should have known in 2018 that the Authority was
asserting a categorical right to reject group, class, and consolidated grievances. That
notice did not come until January 2020, when the Authority asserted this position in
response to SEIU’s motion to amend the Dominguez grievance. We therefore affirm
the ALJ’s decision to reject the Authority’s statute of limitations defense.

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II. 	SEIU’s Prima Facie Case
The MMBA requires public agencies to meet and confer in good faith with
recognized employee organizations on wages, hours, and other terms and conditions
of employment. (MMBA, § 3505.) A unilateral change to a matter within the scope of
representation is a per se violation of the duty to meet and confer. (Sacramento City
Unified School District (2020) PERB Decision No. 2749, p. 7.) To establish a prima
facie case of an unlawful unilateral change, a charging party must prove that: (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 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).)
In its exceptions, the Authority does not challenge the ALJ’s conclusions as to
the final three elements. Instead, it argues that SEIU cannot prove the first element: a
change in the status quo. There are three primary means of proving that an employer
changed or deviated from the status quo. Specifically, a charging party satisfies this
element by showing any of the following: (1) deviation from a written agreement or
written policy; (2) a change in established past practice; or (3) a newly created policy,
or application or enforcement of existing policy in a new way. (Bellflower, supra, PERB
Decision No. 2796, p. 10.)

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Although SEIU initially argued that it could prove all three types of changes, the
ALJ found that SEIU established only the third type of change: a newly created policy
or application or enforcement of existing policy in a new way. Because neither party
has asked us to review the ALJ’s conclusions as to the first two types of changes, we
consider only the third category.
The Authority asserts that its January 2020 opposition to SEIU’s motion to
amend the Dominguez grievance merely restated the status quo as already reflected
in the parties’ MOU and Hockersmith’s 2018 response to the Lerdo grievance. We
conclude, however, that the Authority’s January 2020 opposition announced a new
policy where there was none before—or applied or enforced existing policy in a new
way—by declaring that the MOU bars group or class grievances and grants the
Authority unilateral authority to refuse to consolidate grievances.
There are multiple factual and legal reasons that the Authority’s position was a
new one. First, Article VIII of the parties’ MOU is ambiguous on the questions at issue.
The Authority argues that Article VIII, Section E.7, which provides that “[g]rievances of
an identical nature concerning the same subject matter may be consolidated,”
indicates that both parties must agree to consolidate grievances and therefore grants
the Authority the right to veto any group or class grievance by simply withholding its
consent to consolidation. However, Section E.7 makes no reference to mutual
agreement and can just as reasonably be interpreted as providing SEIU with a right to
consolidate identical grievances, with or without the Authority’s consent. (See, e.g.,
Deaton Truck Line, Inc. v. Local Union 612, Int’l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (5th Cir. 1963) 314 F.2d 418, 422 [where

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grievance procedure used the word “may” in the phrase “the dispute may be
submitted” to arbitration, the phrase provided each party with the right to require the
other to arbitrate] [citing United Steelworkers of America v. American Mfg. Co. (1960)
363 U.S. 564, 565, fn. 1].) This constitutes one independent basis for finding the
Authority unilaterally instituted a new policy.
Second, we reject the Authority’s argument that the MOU implicitly disallows
group and class grievances by defining a grievance as a “complaint by an employee”
and using other similar singular phrasing. As explained further post at pages 14-16,
Omnitrans (2009) PERB Decision No. 2010-M (Omnitrans I) and related cases hold
that only clear and unambiguous MOU language can bar a union from pursuing
collective relief through a grievance, and an MOU does not satisfy that standard where
it merely defines the grievant as a singular “employee” and does not explicitly exclude
group and class grievances. (Id., adopting proposed decision at p. 5; Chula Vista City
School District (1990) PERB Decision No. 834, p. 22 (Chula Vista) [because
employees have statutory right to act collectively through their chosen representative,
unions have statutory right to challenge contractual violations on a collective basis].)3
The Authority’s position is also untenable because it has failed to consistently
express what differences (if any) it sees between group, class, and consolidated
grievances. As already noted, Hockersmith’s 2018 response expressed that the
“group” Lerdo grievance was equivalent to consolidated grievances. That response,
3 Under PERB precedent, “clear and unmistakable” has the same meaning as
“clear and unambiguous.” (County of Merced (2020) PERB Decision No. 2740-M,
p. 10, fn. 7 (Merced).)

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together with other record evidence regarding the Lerdo, Kane, Venegas, and Halsell
grievances, further confirm that the Authority’s January 2020 position went well
beyond merely reaffirming an allegedly consistent MOU interpretation that the
Authority claims was already in place.4
We therefore conclude that the position the Authority asserted in January 2020,
claiming that the parties’ MOU granted it the right to reject group, class, or
consolidated grievances on purely procedural grounds, materially altered the status
quo in a manner that could affect future cases. (See, e.g., Sacramento City Unified
School District, supra, PERB Decision No. 2749, pp. 8-9 [employer engaged in
unilateral change by refusing to allow arbitrator to decide arbitrability dispute].)5
III. 	The Authority’s Waiver Defense
The Authority asserts contractual waiver and waiver by inaction. As to each of
these arguments, the Authority bears the burden of proving clear and unmistakable
waiver, viz., that SEIU intentionally relinquished its right. (City of Culver City (2020)
PERB Decision No. 2731-M, p. 13, and adopting proposed decision at p. 23 (Culver
4 When considering the meaning of ambiguous contract language—including if
a respondent asserts an MOU-based defense—we consider past practice as one
interpretive tool even absent a practice that is “regular and consistent” or “historic and
accepted.” (Merced, supra, PERB Decision No. 2740-M, p. 13, fn. 9.)
5 As noted above, the Authority raised two arguments in its January 2020
opposition to SEIU’s motion to amend the Dominguez grievance. Beyond asserting its
unilateral discretion to reject group, class, and consolidated grievances, the Authority
also claimed SEIU was tardy in its attempted amendment. SEIU has not asserted that
this second ground was a unilateral change. We express no opinion whether SEIU
waited too long before asking to amend the Dominguez grievance. Moreover, because
the Authority’s exceptions do not assert that PERB should have deferred the instant
charge to arbitration, we do not consider that issue.

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City).) We resolve any doubt against finding waiver. (Merced, supra, PERB Decision
No. 2740-M, p. 10.)
A. 	Contractual Waiver
The Authority relies on MOU Article VIII as a contractual waiver of two different
MMBA rights: SEIU’s right to file union grievances on behalf of multiple employees
and SEIU’s right to bargain before the Authority changes the status quo. We address
the two waiver questions together, because the clear and unmistakable standard
governs each of them. First, however, we review an exclusive representative’s
statutory right to file grievances pursuing collective relief.
Chula Vista, supra, PERB Decision No. 834 held that the Educational
Employment Relations Act (EERA) grants an exclusive representative the right to file
grievances in its own name.6 The Board based this holding on EERA section 3543.1,
subdivision (a), which states in relevant part: “Employee organizations shall have the
right to represent their members in their employment relations with public school
employers.” Critically, Chula Vista noted that this statutory right is based on the
fundamental principle that employees have the right to act collectively through their
union:
“The system of labor relations created by the EERA
envisioned employees acting collectively through a chosen
representative to bargain with their employer about matters
within the scope of representation. The grievance
procedure is a contractual tool for enforcing the results of a
negotiated agreement. For contract violations to be
grievable and arbitrable only by the initiation of an individual
employee runs counter to the EERA’s statutory system of
6 EERA is codified at section 3540 et seq.

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collective action. In a system of collective bargaining, the
ability to challenge contractual [sic] violations must lie with
the party that negotiated the contract, i.e., the exclusive
representative. Any other system makes the viability of the
contract dependent upon the willingness of each unit
member to stand individually.”
(Id. at p. 22; see also, e.g., Mt. Diablo Unified School District (1990) PERB Decision
No. 844, adopting proposed decision at pp. 18-19.)
The MMBA mirrors EERA in providing unions with a “right to represent”:
“Recognized employee organizations shall have the right to represent their members
in their employment relations with public agencies.” (MMBA, § 3503.) In Omnitrans I,
supra, PERB Decision No. 2010-M, we found that the MMBA, like EERA, provides an
exclusive representative with a statutory right to file union grievances seeking relief on
a collective basis. (Id., adopting proposed decision at p. 5.) Any waiver of this union
right must be clear and unmistakable. (Ibid.)
The Authority argues that Article VIII limits the grievance procedure to single
employee grievances, except where the parties mutually agree to consolidate identical
grievances. But as already noted, Article VIII is far from clear and unmistakable on this
point. The article makes no mention of group or class grievances, and it can
reasonably be construed to mean that SEIU has the right to consolidate identical
grievances, with or without the Authority’s consent. (See ante at pages 11-12.)
Evidence concerning past group, class, and consolidated grievances, including the
Lerdo grievance and the Authority’s response thereto, similarly undercut the argument
that Article VIII is a clear and unmistakable waiver. Moreover, while Article VIII defines
a grievance as a complaint by “an employee,” in Omnitrans I, supra, PERB Decision
No. 2010-M, we held that a grievance procedure which repeatedly referred to the

16
grievant as “the employee” did not waive the union’s statutory right to seek collective
relief. (Id., adopting proposed decision at pp. 3, 5, 7.)7
The Board has only once found partial waiver of a union’s right to file certain
types of grievances. In Trustees of the California State University (1995) PERB
Decision No. 1094-H, the grievance procedure stated that a “union grievance” was
available only as to one contract article, and an arbitrator had interpreted that
provision to disallow any other type of union grievance. (Id., adopting warning letter at
pp. 1-2.) Here, in contrast, the MOU does not explicitly mention group grievances,
class grievances, or union grievances, and it allows consolidated grievances.
Furthermore, reading Article VIII, Section B to mean that any grievance must be
a complaint by an employee would leave SEIU with no ability to enforce union rights in
the MOU. Such a result is typically not a fair interpretation of contractual intent, which
is another reason that contractual language referring to the grievant as an employee
does not waive a union’s right to use the grievance procedure to pursue collective
relief. (Omnitrans II, supra, PERB Decision No. 2143-M, p. 7.)
Finally, the Authority’s position violates fundamental principles of contract
interpretation by rendering superfluous Article VIII, Section C.6, which bars SEIU from
7 In Omnitrans (2010) PERB Decision No. 2143-M (Omnitrans II), we
considered the same MOU language at issue in Omnitrans I, this time in the context of
a unilateral change allegation. The employer refused to process a grievance filed by
the union’s president alleging violations of several MOU articles, claiming among other
things that the grievance procedure did not allow the union to file grievances in its own
name and that the union president lacked standing to file a grievance because he was
not himself an “employee” as defined by the MOU. (Id. at p. 7.) We again found no
clear and unmistakable waiver and therefore concluded that the employer unlawfully
changed the status quo by refusing to process the union’s grievance. (Id. at pp. 7-8.)

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using the grievance procedure for impasse resolution. This provision would be
unnecessary if SEIU were already subject to a broader exclusion by virtue of being an
employee organization rather than an “employee.”
For these reasons, we reject the Authority’s contractual waiver defense.8
B. 	Waiver by Inaction
To prove waiver by inaction, it is necessary to prove “conscious abandonment”
of the right to bargain. (Culver City, supra, PERB Decision No. 2731-M, p. 18.)
Showing that a union consciously abandoned its right to bargain typically involves
proof that “the union had clear notice, meaning advance knowledge, of the employer’s
intent to change policy with sufficient time to allow a reasonable opportunity to bargain
about the change and then failed to request negotiations.” (Id., adopting proposed
decision at pp. 25-26 [internal quotation marks omitted].)
The Authority argues that SEIU waived its right to bargain by not demanding
bargaining after Hockersmith responded to the Lerdo grievance in 2018. Before
assessing this argument, we briefly explain how it fits with the related statute of
limitations issue discussed ante. If Hockersmith’s grievance response had announced
a new policy, that would have triggered the statute of limitations on filing a unilateral
change charge. But even in that hypothetical case, announcing a new policy as a fait
8 We need not resolve whether the MOU allows SEIU to file a group or class
grievance, or to consolidate identical grievances over the Authority’s objection,
because as noted ante at p. 11 neither party has asked us to consider whether the
Authority unilaterally deviated from the MOU. Rather, the most we determine is that
the MOU was ambiguous and there was no clear rule or policy prior to January 2020,
meaning that the Authority implemented a new rule, or enforced or applied an existing
rule in a new way.

18
accompli would not trigger a duty to demand bargaining and cannot support a waiver
defense. (Merced, supra, PERB Decision No. 2740-M, p. 20.) Thus, waiver and
timeliness normally apply in separate circumstances: announcing a fait accompli can
trigger the statute of limitations for a unilateral change charge but cannot support a
waiver by inaction defense, while proposing a new policy does not trigger the statute
of limitations but can lead PERB to find waiver by inaction if the union does not
respond to the proposal within a reasonable time.
Here, Hockersmith’s 2018 response to the Lerdo grievance neither announced
nor proposed a new policy. As explained ante, Hockersmith’s grievance response did
not announce a firm policy that the Authority had a unilateral right to reject group,
class, and consolidated grievances, meaning it did not trigger the statute of limitations
for filing a unilateral change charge. Moreover, the Authority does not and cannot
contend that Hockersmith proposed a new policy in her 2018 grievance response,
meaning that SEIU had no obligation to demand to bargain and its failure to make
such a demand thus did not waive any bargaining rights.
IV. 	The ALJ’s Proposed Remedy
The ALJ issued a standard order requiring the Authority to physically post and
electronically distribute a notice to ensure that all affected employees learn the
outcome of this matter. (City of Sacramento (2013) PERB Decision No. 2351-M,
pp. 44 [adding electronic distribution to PERB’s standard notice posting remedy].)
Relying on City and County of San Francisco (2017) PERB Decision No. 2536-M (San
Francisco), SEIU urges the Board to require posting and distribution in a manner
calculated to reach all Authority employees, rather than merely all SEIU-represented

19
employees. We ordered such a remedy in San Francisco because the employer
maintained an unreasonable rule affecting all of its employees, not just those
represented by the charging party union. (Id. at p. 45.) In contrast, here the record
does not prove that the Authority announced a new policy or policy interpretation with
respect to any employees outside the SEIU-represented bargaining units. We
therefore find no cause to order broader notice posting and distribution.
ORDER
Based on the foregoing and the entire record in the case, the Public
Employment Relations Board (PERB) finds that the Kern County Hospital Authority
violated the Meyers-Milias-Brown Act, Government Code section 3500 et seq.
(MMBA), when it unilaterally adopted a new policy, or applied or enforced existing
policy in a new way, without affording SEIU notice and an adequate opportunity to
bargain. By the same conduct, the Authority interfered with the rights of employees to
participate in activities the MMBA protects, and also denied SEIU its right to represent
employees in their employment relations with the Authority. All other allegations are
hereby DISMISSED.
Pursuant to Government Code section 3509, subdivision (b), it hereby is
ORDERED that the Authority, its governing board, and its representatives shall:
A. CEASE AND DESIST FROM:
1. 	Adopting new policies, or applying or enforcing existing policies in
a new way, relating to group, class, or consolidated grievances, without affording
SEIU adequate advance notice and an opportunity to bargain to impasse or
agreement.

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2. 	Interfering with the rights of employees to participate in activities
the MMBA protects.
3. 	Denying SEIU its right to represent employees in their
employment relations with the Authority.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Upon SEIU’s request, meet and confer in good faith about policies
relating to group, class, and consolidated grievances.
2. 	Within 10 workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to SEIU-represented
employees are posted, copies of the Notice attached hereto as an Appendix. An
authorized agent of the Authority must sign the Notice, indicating that the Authority will
comply with the terms of this Order. The Authority shall maintain the posting for a
period of 30 consecutive workdays and shall also distribute it by electronic message,
intranet, internet site, and other electronic means the Authority uses to communicate
with employees in SEIU’s bargaining units. The Authority shall take reasonable steps
to ensure that the Notice is not reduced in size, altered, defaced, or covered with any
other material.9
9 In light of the ongoing COVID-19 pandemic, Respondent shall notify PERB’s
Office of the General Counsel (OGC) 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 Respondent
so notifies OGC, or if Charging Party requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
parties. OGC shall provide amended instructions to the extent appropriate to ensure

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3. 	Provide PERB’s General Counsel, or the General Counsel’s
designee, with written notification of all actions taken to comply with this Order, as well
as any such further reports as the General Counsel or designee may direct; and
concurrently serve SEIU with all such notifications and reports.
Members Shiners and Paulson joined in this Decision.
adequate publication of the Notice, such as directing Respondent to commence
posting within 10 workdays after a majority of employees have resumed physically
reporting on a regular basis; directing Respondent 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 Respondent to mail the
Notice to employees with whom it does not 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. LA-CE-1451-M, Service Employees
International Union, Local 521 v. Kern County Hospital Authority, in which all parties
had the right to participate, the Public Employment Relations Board found that the
Kern County Hospital Authority violated the Meyers-Milias-Brown Act, Government
Code section 3500 et seq. (MMBA), when it unilaterally adopted a new policy, or
applied or enforced existing policy in a new way, without affording Service Employees
International Union, Local 521 (SEIU) notice and an opportunity to bargain.
As a result, we have been ordered to post this Notice, and we will:
A. 	CEASE AND DESIST FROM:
1. 	Adopting new policies, or applying or enforcing existing policies in
a new way, relating to group, class, or consolidated grievances, without affording
SEIU adequate advance notice and an opportunity to bargain to impasse or
agreement.
2. 	Interfering with the rights of employees to participate in activities
the MMBA protects.
3. 	Denying SEIU its right to represent employees in their
employment relations with the Authority.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Upon SEIU’s request, meet and confer in good faith about policies
relating to group, class, and consolidated grievances.
Dated: _____________________ 	KERN COUNTY HOSPITAL AUTHORITY
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.