County of Riverside (PERB A469M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL
721,
Charging Party,
v.
COUNTY OF RIVERSIDE,
Respondent.
COUNTY OF RIVERSIDE,
Charging Party,
v.
SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL
721,
Respondent.
Case Nos. LA-CE-1168-M,
LA-CE-1170-M, LA-CE-1174-M,
LA-CE-1188-M, LA-CE-1191-M,
LA-CE-1192-M, LA-CE-1198-M,
LA-CE-1199-M, LA-CE-1207-M,
LA-CE-1208-M, LA-CE-1209-M,
LA-CE-1212-M, LA-CE-1213-M,
LA-CE-1214-M, LA-CE-1220-M,
LA-CE-1221-M, LA-CE-1222-M,
LA-CE-1224-M, LA-CE-1231-M,
LA-CE-1232-M, LA-CE-1233-M,
LA-CE-1239-M, LA-CE-1240-M,
LA-CE-1242-M, LA-CE-1306-M
Case No. LA-CO-222-M
PERB Order No. Ad-469-M
November 14, 2018
Appearances: Liebert Cassidy Whitmore, by Frances E. Rogers, Brett A. Overby, and Kevin J.
Chicas, Attorneys, for County of Riverside; Rothner, Segall & Greenstone, by Maria Keegan
Myers, Attorney, for Service Employees International Union, Local 721.
Before Banks, Winslow, Shiners, and Krantz, Members.

________________________
DECISION
WINSLOW, Member: These unfair practice cases are consolidated and assigned for
hearing to two administrative law judges (ALJs).1 They are before the Public Employment
Relations Board (PERB or Board) on the County of Riverside’s (County) request for special
permission to appeal the ALJs’ orders denying the County’s motions to disqualify PERB—
including all Board agents, ALJs, and the Board itself—from hearing and deciding the cases.
The ALJs denied the motions as to themselves but declined to rule on disqualification of the
Board itself or other Board agents, finding that they lacked authority to do so.
In support of its motion for disqualification, the County argues that the Board has
demonstrated bias against the County by granting a request for injunctive relief by Service
Employees International Union, Local 721 (SEIU) based on the allegations in the consolidated
cases, and by the statements and arguments of PERB’s General Counsel while pursuing
injunctive relief in court.
Having reviewed the parties’ filings in this matter, including the County’s request,
appeal, and supporting documentation, SEIU’s opposition, and the County’s reply, we grant
the County’s request for special permission to appeal the ALJs’ orders, but affirm the ALJs’
rulings as to their disqualification and deny the County’s motion to disqualify the Board itself
and all other Board agents from deciding these consolidated cases.
1 Case No. LA-CE-1240-M and a retaliation allegation in Case No. LA-CE-1306-M are
assigned to Chief ALJ Shawn Cloughesy. The remaining allegations in Case No. LA-CE-
1306-M and all of the other captioned cases are assigned to ALJ Valerie Racho.
The County also refers in its appeal to Case No. LA-CE-1270-M, in which a proposed
decision was issued on May 30, 2018 and the County filed exceptions with the Board itself on
July 3, 2018.
2

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BACKGROUND
SEIU is the exclusive representative of several County bargaining units. In September
2016, SEIU and the County began negotiations for a successor memorandum of understanding.
Since then, SEIU has filed a number of unfair practice charges against the County, and the
County has filed one unfair practice charge against SEIU. SEIU’s charges allege that during
this course of bargaining, the County has engaged in bad faith bargaining, interfered with
employee and union rights, and discriminated against SEIU members, in violation of the
Meyers-Milias-Brown Act (MMBA).2
The County’s charge against SEIU arose in relation to a strike. In September 2017,
SEIU announced a two-day strike to protest the County’s alleged unfair practices. Pursuant to
City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597 and County
Sanitation District No. 2 v. Los Angeles County Employees Association (1985) 38 Cal.3d 564,
the County filed an unfair practice charge against SEIU and requested that PERB seek
injunctive relief to prevent certain allegedly “essential” employees represented by SEIU from
participating in that strike. The Board granted the County’s request as to certain County
employees represented by SEIU, and directed the General Counsel to seek injunctive relief
against SEIU. The General Counsel sought and obtained a temporary restraining order from
the Riverside County Superior Court.
In May 2018, SEIU requested injunctive relief against the County. SEIU asked PERB
to seek an injunction: (1) requiring the County to refrain from terminating and/or to reinstate
three SEIU-represented employees who were allegedly subject to termination for participating
in the September 2017 strike; and (2) preventing the County from implementing its last, best,
2 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all further statutory references are to the Government Code.
3

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and final offer (LBFO), which SEIU alleged was unlawful because the County had failed to
bargain in good faith. The Board granted SEIU’s request and directed the General Counsel to
pursue the injunction in court. The Riverside County Superior Court granted a temporary
restraining order enjoining implementation of the County’s LBFO. The court later granted a
preliminary injunction enjoining implementation and requiring the County to reinstate two
terminated employees and to refrain from terminating a third.
The County has filed an appeal of the preliminary injunction, which is pending in the
Court of Appeal. It has also challenged the preliminary injunction by filing a petition for writ
of mandate and a petition for writ of supersedeas. The Court of Appeal denied the petition for
writ of mandate but granted the petition for writ of supersedeas, staying the preliminary
injunction as to the County’s implementation of its LBFO.
Meanwhile, the above-captioned unfair practice charges were assigned to the ALJs and
scheduled for hearing on various dates in October 2018. The County’s motions to disqualify
were denied on September 24 and 25, 2018, respectively. The County timely filed its request
for special permission to appeal, which included briefing on the merits of its disqualification
motion. SEIU filed an opposition to the motion, and the County filed a reply.
DISCUSSION
PERB Regulation 321553 identifies the grounds and procedure for disqualification of
Board members and Board agents. As relevant here, disqualification is required “[w]hen it is
made to appear probable that, by reason of prejudice of such Board member or Board agent, a
fair and impartial consideration of the case cannot be had before him or her.” (PERB Reg.
32155, subd. (a)(4).)
3 PERB Regulations are codified at California Code of Regulations, title 8, section
30001 et seq.
4

With respect to Board agents, including ALJs, “[a]ny party may request the Board
agent to disqualify himself or herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board agent to whom the matter is
assigned.” (PERB Reg. 32155, subd. (c).) If the request is not granted,
[t]he party requesting the disqualification may, within ten days,
file with the Board itself a request for special permission to
appeal the ruling of the Board agent. If permission is not granted,
the party requesting disqualification may file an appeal, after
hearing or investigation and issuance of the decision, setting forth
the grounds of the alleged disqualification along with any other
exceptions to the decision on its merits.
(PERB Reg. 32155, subd. (d).)
With respect to Board members, “[a]ny party to a case before the Board may file
directly with the Board member a motion for his or her recusal from the case when exceptions
are filed with the Board or within ten days of discovering a disqualifying interest provided that
such facts were not available at the time exceptions were filed.” (PERB Reg. 32155, subd. (f).)
I. 	Request for Special Permission to Appeal
The first issue for us to resolve is whether to grant the County special permission to
appeal the ALJs’ orders. The Board has held that it may deny special permission to appeal an
order denying disqualification when it would not effectuate the purposes of the applicable
statute to allow the appeal. (State of California (Department of Personnel Administration)
(2007) PERB Order No. Ad-359-S.) Here, we grant the County special permission based on
the number of consolidated cases involved and the nature of the County’s arguments. Under
the unique circumstances of this case, it would not effectuate the purposes of the MMBA to
require the parties to proceed to hearing prior to resolving the County’s disqualification
request.
5

Because the parties have already briefed the merits of the County’s disqualification
motion, we proceed to analyze that issue.
II. 	Appeal of the ALJs’ Orders Denying Disqualification
As noted above, Chief ALJ Cloughesy and ALJ Racho each denied the County’s
motion to disqualify as to themselves, and declined to rule on the motion as to the Board itself
and other Board agents. The portion of the County’s appeal challenging the ALJs’ refusals to
disqualify themselves is properly before us pursuant to PERB Regulation 32155, subdivision
(c), which concerns disqualification of the Board agent “to whom the matter is assigned.”
We affirm the ALJs’ orders denying their own disqualification. Disqualification is
appropriate only on evidence of a fixed anticipatory prejudgment against a party by the
decisionmaker. (Coachella Valley Mosquito & Vector Control District (2009) PERB Decision
No. 2031-M, p. 24.) Here, the County acknowledges that it has no evidence that Chief ALJ
Cloughesy or ALJ Racho possess a fixed anticipatory prejudgment against the County. The
entirety of the County’s appeal is instead based on its claim that the Board itself is biased
against the County, as demonstrated by its decision to seek injunctive relief and by the General
Counsel’s arguments in pursuit of that relief.
While the County claims that any bias demonstrated by the Board itself or the General
Counsel is imputable to the ALJs, this claim ignores that PERB’s Division of Administrative
Law operates independently of the Board itself and of the Office of the General Counsel. The
ALJs in the Division of Administrative Law play no part in the decision to seek injunctive
relief; that decision is made by the Board itself based on the General Counsel’s
recommendation. (PERB Regs. 32460, 32465.) Moreover, neither the Board itself nor the
Office of the General Counsel has any role in the ALJs’ decision-making processes. The
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Office of the General Counsel’s role in an unfair practice case concludes upon issuance of an
unfair practice complaint. (PERB Reg. 32640.) As for the Board itself, we have no role in a
case while it is pending before an ALJ, except in unusual circumstances where, as here, there is
an interlocutory appeal. (PERB Regs. 32200, 32155, subd. (d).) And, consistent with the
administrative adjudication provisions of the Administrative Procedures Act (APA),4 we do
not communicate with the ALJs concerning the merits of their decisions while the matter is
assigned to them or while it is pending before us. (§ 11430.80.) The ALJs are expected to
base their factual findings and legal conclusions on the record before them and on current
PERB precedent, not on how they imagine the Board itself views the case in light of a grant of
injunctive relief, nor on the General Counsel’s arguments in support of injunctive relief. The
County has presented no reason to suspect otherwise here.5 Therefore, we affirm Chief ALJ
Cloughesy’s and ALJ Racho’s orders refusing to disqualify themselves.6
III. 	Motion to Disqualify the Board Itself
Turning to the County’s motion to disqualify the Board itself, we agree with Chief ALJ
Cloughesy and ALJ Racho that PERB Regulation 32155 does not empower an ALJ or other
4 The APA’s administrative adjudication provisions are codified at section 11400
et seq.
5 Both of the ALJs were clear regarding their independence from PERB’s other
divisions. Chief ALJ Cloughesy explained, in the course of denying the County’s motion,
“I’m not going to be kowtowing to anybody in the General Counsel’s Office or in that case
what the Board says going on injunctive relief. I’m going to do what a judge does. I’m going
to conduct a fair and impartial hearing. I’ve been doing it for many years.” Similarly, ALJ
Racho stated: “[F]rom my perspective, what happens outside of my hearing room is completely
irrelevant to my decisions. Anything that happens in other divisions of PERB has no bearing on
anything that I decide, and I always approach every case the same way, listening to the facts and
deciding whether those facts demonstrate a violation of the law.”
6 Because the consolidated cases are not assigned to any other Board agent, it is
unnecessary for us to determine whether any other Board agents should be disqualified from
hearing them.
7

Board agent to rule on whether a Board member or the entire Board itself should be
disqualified. Specifically, subdivision (g) of Regulation 32155 provides that a decision
regarding Board member recusal is to be made by “the Board member alleged to be
disqualified.” The ALJs therefore did not err by declining to rule on the portion of the
County’s motion directed at the Board itself.
In addition, the County’s motion to disqualify the Board itself is premature as to the
cases currently pending before Chief ALJ Cloughesy and ALJ Racho. PERB Regulation
32155, subdivision (f), contemplates the filing of such a motion, at the earliest, when
exceptions are filed with the Board itself. This interpretation is further buttressed by
subdivision (e), which requires a Board member to declare his or her disqualification
“[w]henever” he or she “ha[s] knowledge of any facts which, under the provisions of this rule,
disqualify him or her to consider any case before the Board.” (Emphasis added.) In other
words, parties are not expected to request disqualification of Board members before a case
reaches the Board itself, and Board members are not required to examine the hundreds of cases
pending at other levels of the agency to determine if they should be disqualified.
Although the County’s appeal also refers to Case No. LA-CE-1270-M, which is
currently pending with the Board, its request to disqualify the Board in that case comes too
late. The County was required to move for recusal at the time it filed its exceptions or within
ten days of learning the grounds for recusal. (PERB Reg. 32155, subd. (f); County of Tulare
(2016) PERB Decision No. 2461a-M, p. 4.) Here, the County filed its exceptions on July 3,
2018, well after the asserted grounds for disqualification arose (and after it originally filed its
8

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motion to disqualify the ALJs, on June 25, 2018), but did not file the present appeal until
October 5, 2018.7
Despite the untimely nature of the County’s motion to disqualify the Board itself, we
opt to address it on its merits rather than create the misleading impression that it has any
potential merit. (Cf. County of Tulare, supra, PERB Decision No. 2461a-M, p. 4.) We address
the County’s arguments seriatim.
The County argues that by granting SEIU’s injunctive relief request, we have either
already adjudicated the merits of this case against the County or have inappropriately acted as
a prosecutor in the case. Neither is true. Rather, in response to SEIU’s request we exercised
our authority under section 3541.3, subdivision (j), to petition the superior court for injunctive
relief against an alleged unfair practice.8 In doing so, we determined that SEIU’s request met
the two-part standard under Public Employment Relations Board v. Modesto City Schools
District (1982) 136 Cal.App.3d 881 (Modesto), to wit: (1) there was reasonable cause to
believe that the County has violated the MMBA; and (2) injunctive relief was just and proper.
The reasonable cause determination is not an adjudication of the merits of the case; reasonable
cause is established if the theory underlying the request “is neither insubstantial nor frivolous.”
(Id. at pp. 896-897, emphasis in original.) As we have previously explained, the Board’s
7 The County made no mention of Case No. LA-CE-1270-M in the motions it filed with
the ALJs, so there is no basis for excusing the County’s failure to file a motion for
disqualification with the Board itself. (Cf. City of Oakland (Oakland Fire Department) (2015)
PERB Order No. Ad-425-M, pp. 9-10.) Nor has the County suggested, much less shown, that
when it filed its exceptions in Case No. LA-CE-1270-M, it did not know of the facts on which
it now relies.
8 Section 3541.3, subdivision (j), which applies to actions under the MMBA according
to section 3509, subdivision (a), provides: “Upon issuance of a complaint charging that any
person has engaged in or is engaging in an unfair practice, the board may petition the court for
appropriate temporary relief or restraining order.”
9

reasonable cause determinations rely “on facts developed in the General Counsel’s
investigation of the [injunctive relief] [r]equest and supporting unfair practice charge,” but the
“ultimate determination of the facts . . . must await the outcome of PERB’s administrative
procedures.” (City of Fremont (2013) PERB Order No. IR-57-M, p. 19, fn. 8; see also NLRB v.
Acker Industries, Inc. (10th Cir. 1972) 460 F.2d 649, 652 [proceeding for injunctive relief by
the National Labor Relations Board (NLRB) under section 10(j) of the National Labor
Relations Act “has a limited evidentiary scope and limited purpose,” “is not intended to
determine which litigant should ultimately prevail,” and is subject to less exacting proof than
in the administrative hearing on the merits].)
The courts have uniformly rejected arguments quite similar to those the County makes
here. In San Diego Teachers Association v. Superior Court (1979) 24 Cal.3d 1 (San Diego
Teachers), the Supreme Court rejected the argument that “PERB cannot direct [its general
counsel] to seek temporary injunctive relief against an unfair practice without compromising
its neutrality in subsequently hearing the merits of the unfair practice charge.” (Id. at p. 10.)
Similarly, in San Diego Municipal Employees Association v. Superior Court (2012)
206 Cal.App.4th 1447 (San Diego Municipal Employees), the Court of Appeal refused to find
that an employer against whom the Board unsuccessfully sought injunctive relief was
thereafter excused from exhausting its administrative remedies. To the employer’s claim that
the Board had already decided the merits of the case, the Court of Appeal responded that this
argument “would effectively strip PERB of its statutorily enumerated power under section
3541.3, subdivision (j), to seek temporary injunctive relief, because . . . any invocation of that
power would divest PERB of any further jurisdiction under the ‘futility’ exception.” (Id. at
p. 1460.)
10

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The County claims that San Diego Municipal Employees, supra, 206 Cal.App.4th 1447,
is distinguishable because it was decided on the grounds of exhaustion, not disqualification.
But the County’s argument here and the employer’s argument in that case rest on the same
erroneous premise: that by deciding to seek injunctive relief, the Board necessarily decides the
merits of the case. And both arguments would lead to the same result: effectively stripping the
Board of its statutory authority to seek temporary injunctive relief.9
The County alternatively attempts to distinguish San Diego Municipal Employees,
supra, 206 Cal.App.4th 1447, because that case involved disputed legal questions and not, as
here, factual ones. However, the argument that an administrative agency has already resolved
the merits of a case seems stronger, not weaker, when the dispositive issue is a question of law.
Regardless, the reasonable cause standard applies both to disputed or novel legal theories
(Modesto, supra, 136 Cal.App.3d 881) and to disputed facts (Sharp ex rel. NLRB v. Webco
Industries, Inc. (10th Cir. 2000) 225 F.3d 1130, 1134 [to establish reasonable cause, NLRB
“must only produce some evidence ‘that [its] position is fairly supported by the evidence’”]).
In rejecting the argument that a decision to seek injunctive relief compromises the
Board’s neutrality when it later must resolve the merits of the case, San Diego Teachers and
San Diego Municipal Employees are consistent with the APA. Section 11425.30,
subdivision (b), allows an agency head to participate “in a determination of probable cause or
other equivalent preliminary determination in an adjudicative proceeding or its preadjudicative
stage,” as well as at later stages of the proceeding. (See also Administrative Adjudication by
9 The County suggests, without any authority or analysis, that we can disqualify
ourselves and “delegate” this case to an ALJ from the California Office of Administrative
Hearings or to a private arbitrator. We have some doubts about these potential alternatives, but
we need not consider them further in light of our disposition of this matter.
11

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State Agencies, 25 Cal. Law Revision Com. Rep. 55 (1995) pp. 157-158; Asimow et al., Cal.
Practice Guide: Administrative Law (The Rutter Group 2017) ¶ 5.335.)
Federal authority is also in accord. In Withrow v. Larkin (1975) 421 U.S. 35
(Withrow), the United States Supreme Court held that there was no due process violation
owing to the fact that an administrative board made an initial determination of probable cause,
leading to the initiation of an administrative case, and then made the ultimate finding on the
merits of the case. The court explained:
The risk of bias or prejudgment in this sequence of functions has
not been considered to be intolerably high or to raise a
sufficiently great possibility that the adjudicators would be so
psychologically wedded to their complaints that they would
consciously or unconsciously avoid the appearance of having
erred or changed position. . . . Here, if the Board now proceeded
after an adversary hearing to determine that appellee’s license to
practice should not be temporarily suspended, it would not
implicitly be admitting error in its prior finding of probable
cause. Its position most probably would merely reflect the
benefit of a more complete view of the evidence afforded by an
adversary hearing.
The initial charge or determination of probable cause and the
ultimate adjudication have different bases and purposes. The fact
that the same agency makes them in tandem and that they relate
to the same issues does not result in a procedural due process
violation.
(Id. at pp. 57-58.)10 And in even more closely analogous circumstances to those here, the
federal courts of appeals have consistently rejected the argument that the NLRB cannot
10 Citing Breakzone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1236
(Breakzone), the County argues that “even a tentative commitment” to a result violates due
process. (Emphasis in original.) However, that case cites Withrow, supra, 421 U.S. 35, for the
proposition “that advance knowledge of adjudicative facts that are in dispute, as well as
participation in the charging function, does not disqualify the members of an adjudicatory body
from adjudicating a dispute; nor does the combination of such functions disqualify them from
(1) determining that further investigation is warranted, (2) issuing the order to appear, and
(3) making the ultimate decision after hearing on the merits. The teaching of Withrow is that
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exercise its authority to seek temporary injunctive relief against alleged unfair practices
without violating the due process rights of the respondent when later deciding the case on its
merits. (Flamingo Hilton-Laughlin v. NLRB (D.C. Cir. 1998) 148 F.3d 1166, 1174; Kessel
Food Markets, Inc. v. NLRB (6th Cir. 1989) 868 F.2d 881, 888; NLRB v. Sanford Home for
Adults (2d Cir. 1981) 669 F.2d 35, 37; Eisenberg for and on Behalf of NLRB v. Holland Rantos
Co., Inc. (3d Cir. 1978) 583 F.2d 100, 104.)11
there must be more, a commitment to a result (albeit, perhaps, even a tentative commitment),
before the process will be found violative of due process.” (Breakzone, supra, at p. 1236.)
Breakzone therefore does not support the view that a determination of reasonable cause
necessary to seek injunctive relief requires our disqualification.
The County also cites a number of cases with facts that bear no relation to this one. In
each, the decision-maker had already announced a decision or taken a firm position on the
ultimate outcome. (See, e.g., Perlman v. Shasta Joint Jr. College Dist. Bd. of Trustees (1970)
9 Cal.App.3d 873 [before hearing on whether to expel student, college board announced that it
had “unanimously decided” to do so]; Mennig v. City Council (1978) 86 Cal.App.3d 341 [city
council members with personal animosity toward police chief unrelated to his job performance
testified against him in a civil service commission hearing in which he was challenging his
termination, and then voted to overturn the commission’s decision reinstating him]; Nasha v.
City of Los Angeles (2004) 125 Cal.App.4th 470 [city planning commissioner wrote article
indicating prejudgment of a proposed project]; In re Adoption of Richardson (1967)
251 Cal.App.2d 222 [before hearing any evidence, judge in child adoption proceedings wrote
letter stating that adoption “should be nipped in the bud”]; Pacific etc. Conference of United
Methodist Church v. Super. Ct. (1978) 82 Cal.App.3d 72 [before motion for preliminary
injunction was pending before him, judge offered gratuitous and premature comments that
plaintiffs were likely to succeed at trial].)
Here, to reiterate, the Board has only made the determinations required by section
3541.3, subdivision (j) and Modesto, that there is reasonable cause to believe the County has
violated the MMBA, and that injunctive relief to maintain the status quo is just and proper.
11 The County claims that the NLRB has avoided due process concerns by delegating its
authority to seek injunctive relief to its general counsel, citing Frankl v. HTH Corp. (9th Cir.
2011) 650 F.3d 1334 (Frankl). This is not the basis for the federal courts’ rejection of the due
process arguments in the cases cited above, and Frankl actually explains that delegation to the
NLRB general counsel is the exception rather than the rule. The case recites that the NLRB,
beginning in at least 1950, required its general counsel to obtain case-specific approval before
seeking injunctive relief, and that the NLRB has deviated from this practice only when, due to
the expiration of members’ terms, it would no longer have a three-member quorum to act. (See
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The County also claims the Board itself must be disqualified because the County has
appealed the preliminary injunction. The County objects to being pitted as litigation
adversaries against PERB while the merits of the cases are being adjudicated by the agency.
However, that adversarial posture concerns the merits of the preliminary injunction, not the
unfair practice cases. Moreover, if the Board could be forced to choose between defending its
injunction on appeal and keeping its jurisdiction over these cases, it would effectively strip
PERB of its authority to seek injunctive relief in the first place. (San Diego Municipal
Employees, supra, 206 Cal.App.4th 1447, 1460.)
The County also argues that Agricultural Labor Relations Board v. Superior
Court (2016) 4 Cal.App.5th 675 calls into question the propriety of the Board’s deciding the
merits of a case after deciding to seek injunctive relief. In that case, the Agricultural Labor
Relations Board (ALRB) approved an action by its general counsel seeking injunctive relief
against an employer.12 The employer then sought copies of communications between the
ALRB and the general counsel, which it claimed were improper ex parte communications. The
Court of Appeal held that those communications were subject to the attorney-client privilege
and exempt from disclosure under the California Public Records Act. The court
acknowledged, without deciding, that the communications could present a due process
problem; because the ALRB’s general counsel prosecutes administrative cases before the
agency, the communications could be considered ex parte. But, the court held, the remedy for
also NLRB Case Handling Manual, Part I, § 10310 [“the Board decides on a case-by-case basis
whether to authorize the Regional Office to seek 10(j) relief”].)
12 Like PERB, the ALRB has authority to seek injunctive relief against alleged unfair
practices under Labor Code section 1160.4.
14

that problem would be to require disclosure of the communications as part of the
administrative record, not through a public records act request.
Here, the County argues that this case presents a similar due process problem, owing to
the Board’s attorney-client relationship with the General Counsel, and the fact that the Board
itself must decide whether to seek injunctive relief. But Agricultural Labor Relations Board v.
Superior Court, supra, 4 Cal.App.5th 675, is entirely distinguishable because PERB’s General
Counsel, unlike the ALRB’s, does not prosecute unfair practice complaints or advocate in
cases pending before the Board. Nor does PERB’s General Counsel advise the Board
concerning cases pending final determination. (County of Contra Costa (2014) PERB Order
No. Ad-410-M, pp. 15-16.) Thus, the Board’s communications with the General Counsel
concerning the decision to seek injunctive relief would not constitute ex parte communications
even under the County’s interpretation of Agricultural Labor Relations Board v. Superior
Court.
The County further argues that statements by the General Counsel and his subordinates
in seeking injunctive relief: (1) are attributable to the Board itself, and (2) disclose that the
Board has prejudged the merits of this case, or harbors “hostility” toward the County.
In this regard, the County asserts that “PERB attested to the Superior Court that it
reviewed the evidence and determined that the evidence established the County engaged in
unfair labor practices.” If the General Counsel had, in fact, characterized the matter in those
terms, such a characterization would have exceeded our approval to seek injunctive relief and
would have been inaccurate. As noted, we make no determination on the merits as part of our
decision to grant injunctive relief. (City of Fremont, supra, PERB Order No. IR-57-M, p. 19,
fn. 8.) We certainly did not authorize the General Counsel to represent that the Board itself
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had resolved conflicting legal or factual contentions and concluded that the County violated the
MMBA in the manner alleged.
As it turns out, however, the County has taken the General Counsel’s statements
completely out of context. The statements cited by the County generally fall into five
categories: (1) statements that explicitly refer to Modesto’s “reasonable cause” prong, and
which do not even imply a prejudgment of the merits13; (2) statements concerning SEIU’s
factual allegations, which do not directly refer to “reasonable cause” but which appear in a
discussion of that prong of the Modesto test14; (3) arguments concerning how SEIU’s
13 For example, the County quotes one sentence of PERB’s complaint for injunctive
relief, which stated that “PERB contends that . . . the County has taken various actions in
violation of the MMBA and that this Court should . . . enjoin and restrain the County . . . from
engaging in this unlawful conduct,” but does not cite the rest of the sentence: “under the
standards established in [Modesto].” The County also ignores the very next sentence, which
states, “Under the Modesto standards, the Board has determined that there is reasonable cause
to believe the County has committed numerous unfair labor practices.”
14 For instance, the County points to the General Counsel’s statement in its brief in
support of the temporary restraining order that “the evidence establishes that the County
interrogated at least eight Registered Nurses about their participation in a strike.” This
statement occurs within a larger discussion of SEIU’s allegations, which makes clear that no
determination has been made on the merits of those allegations. Two paragraphs before the
disputed statement, in the same section of the brief, the General Counsel stated: “SEIU’s
charge alleges that the County interfered with employee rights by coercively interrogating a
number of nurses and other healthcare employees about their participation in the September
2017 strike,” and “[a]ccording to the charge, the County asked these employees a series of
questions designed to uncover their motivation for striking, and thus, interfered with their right
to engage in activities arguably protected by the MMBA.” (Emphasis added.) And one
paragraph after the disputed statement, the General Counsel explained, “While these
allegations are of course subject to proof at trial, at this stage of the administrative process
there is more than sufficient evidence to establish reasonable cause to believe that unfair
practices occurred.” (Id. at p. 9.)
The County also finds fault in the statement that “there is extensive evidence before the
Court supporting PERB’s theory that the County’s declaration of impasse, its threatened
imposition of the LBFO, and its interrogations and terminations of employees were all
unlawful.” Here, the County ignores the reference to “PERB’s theory,” itself a callback to
Modesto’s explanation of the reasonable cause standard. (Modesto, supra, 136 Cal.App.3d
16

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allegations would be analyzed under the appropriate legal standard15; (4) arguments for why
injunctive relief is “just and proper”16; and (5) comments on the likelihood that SEIU will
prevail on the merits of its charges.17 The statements in the first four categories are clearly
appropriate in the context of the Modesto test, while the statements in the fifth category were in
response to the County’s own arguments that injunctive relief should be denied because of an
insufficient showing of a likelihood of success. The County also criticizes the General
Counsel’s prayer for reimbursement of costs in the complaint for injunctive relief, which is
hardly unusual in a court complaint. In sum, although the statements cited by the County
881, 897 [“the key question is not whether PERB’s theory would eventually prevail, but
whether it is insubstantial or frivolous” (emphasis added; original emphasis omitted)].)
15 The County notes that PERB’s brief in support of the temporary restraining order
argued that some of the County’s alleged conduct was “‘inherently destructive’ of employee
rights,” and that asserted business justifications by the County would be viewed with
skepticism because “the County’s investigative techniques bordered on the absurd.”
16 The County cites PERB’s brief in support of the temporary restraining order, which
argued that the County’s actions “threaten to degrade, and ultimately, annihilate the ability of
[SEIU] to bargain collectively,” and that “[i]t is apparent that these actions have had a serious
chilling effect on the bargaining unit, that disaffection has set in, and that employees and their
chosen representative will suffer irreparable harm. . . .” (Id. at p. 13.) The County also quotes
the PERB attorney who argued orally in favor of the temporary restraining order that the
County had “unclean hands,” and, in the context of discussing another case in which the
County was found to have retaliated against an employee in violation of the MMBA, County of
Riverside (2013) PERB Decision No. 2336-M, accused the County of having engaged in
scorched earth litigation tactics, being a recidivist, and being a “very sophisticated part[y] who
know[s] well how to invade the rights of [its] employees.” These statements reflect not a
determination of the merits of the pending cases, but argument for why injunctive relief was
appropriate.
17 At the hearing on the temporary restraining order, PERB’s attorney stated, “we
believe strongly” that SEIU’s unfair practice charges have merit, but immediately qualified this
by stating, “or at least that there are serious questions as to the merits of the County’s
conduct.” PERB’s reply brief in support of the preliminary injunction argued that “the County
has very likely engaged in systematic anti-union conduct and bad faith bargaining,” and that an
argument rejected by the ALJ in Case No. LA-CE-1270-M “will likely also be rejected” in
other pending cases.
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evidence the General Counsel’s zealous advocacy for an injunction, they in no way indicated
that the Board had determined or prejudged the merits of the underlying unfair practice cases.18
The County alternatively claims that the General Counsel’s statements show the County
cannot receive a fair and impartial hearing because “PERB risks being viewed as having
misconstrued the alleged ‘evidence’ in a court of law.” We disagree. The reasonable cause
standard is distinct from the preponderance of the evidence standard of proof that applies to the
merits of the unfair practice cases. (PERB Reg. 32178; cf. NLRB v. Acker Industries, Inc.,
supra, 460 F.2d 649, 652.) A finding, following an evidentiary hearing, that the evidence does
not support SEIU’s allegations would not be inconsistent with the finding of reasonable cause
or with PERB’s arguments in court. (Withrow, supra, 421 U.S. 35, 57-58.)
For similar reasons, we reject the County’s argument that the General Counsel’s
statements revealed that the Board itself (or even the General Counsel) bears “hostility” toward
the County. By vesting the Board with the power to petition a court for temporary relief,
section 3541.3, subdivision (j), necessarily contemplates argument by the Board on behalf of
its requested injunction. The General Counsel cannot be expected to pursue injunctive relief
on the Board’s behalf in a rhetorical straightjacket, for fear that vigorous advocacy may cause
the entire agency to lose jurisdiction over the dispute. If the General Counsel’s arguments
misrepresented the law or the evidence, the County had every opportunity for rebuttal, and if
the superior court was improperly swayed by those arguments, the County’s remedy lies in its
appeal of the preliminary injunction. “Hostile” arguments in the injunctive relief process,
18 The County’s appeal notes that the PERB attorney who argued in support of the
temporary restraining order, Brendan White, was later appointed by the Governor to serve as
the legal advisor to Board Member Banks. Under PERB’s standard practice, a legal advisor or
Board member who participated in a case at another level of the agency is recused from the
matter when it reaches the Board. Consistent with that practice, Mr. White has recused himself
from these consolidated cases, as well as from Case No. LA-CE-1270-M.
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falling short of demonstrating a fixed anticipatory prejudgment, do not require this agency’s
disqualification.19
As additional grounds for inferring the Board’s bias against the County, the County
argues that we have singled the County out by seeking injunctive relief in this case. This
argument lacks merit for several reasons. First, the Board has never held—and we are aware
of no other authority suggesting—that bad faith bargaining charges are categorically
inappropriate for injunctive relief. In fact, in the lead appellate precedent establishing the
deferential standard for assessing PERB’s applications for injunctive relief, the Board sought
an injunction against an employer’s alleged bad faith implementation of new terms following a
bargaining impasse. (Modesto, supra, 136 Cal.App.3d 881.) Moreover, the NLRB and its
General Counsel have recognized that injunctive relief “is often warranted” in cases involving
bad faith bargaining. (See Report on Utilization of Section 10(j) Injunction Proceedings,
March 3, 1998 through January 15, 2001 (Feb. 5, 2001) 2001 WL 988354, at p. 10; see also,
e.g., Whitesell Corp. (2011) 357 NLRB 1119, 1120 [noting that NLRB General Counsel obtained
injunction against employer’s implementation of its final offer].)
Second, our authority to seek injunctive relief is discretionary; section 3541.3,
subdivision (j) provides that “the board may petition the court for appropriate temporary relief
19 The County’s citation to Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights
Commission (2018) 138 S.Ct. 1719 (Masterpiece Cakeshop) is not to the contrary. In that
case, the Supreme Court set aside a final decision by a state agency based on what the court
determined to be the agency’s impermissible hostility toward the respondent’s religious views.
The court held that the commission “violated the State’s duty under the First Amendment not
to base laws or regulations on hostility to a religion or religious viewpoint.” (Id. at p. 1731.)
The County’s Masterpiece Cakeshop argument is missing a main ingredient. The
County, as a state actor, cannot claim the protection of the First Amendment’s free exercise
clause. Stripped of its First Amendment foundations, Masterpiece Cakeshop does not support
the proposition that the barest expression of hostility requires an administrative agency to be
disqualified from deciding a case.
19

or restraining order.” (Emphasis added; see also San Diego Teachers, supra, 24 Cal.3d 1, 13
[PERB has “discretion to withhold as well as pursue, the various remedies at its disposal,”
including injunctive relief]; Kinney v. Pioneer Press (7th Cir. 1989) 881 F.2d 485, 489 [“[T]he
[NLRB] has discretion to disdain this remedy no matter how strong the evidence”].) There is
no evidence that when requested to seek injunctive relief under substantially similar
circumstances, the Board has exercised its discretion differently, and, even if the County had
produced such evidence, it would be to no avail absent evidence of intentional invidious
discrimination. (Cf. Cilderman v. City of Los Angeles (1998) 67 Cal.App.4th 1466, 1470
[“Unequal application of a statute or rule to persons entitled to be treated alike is not a denial
of equal protection ‘unless there is shown to be present in it an element of intentional or
purposeful discrimination’”].)
The County also argues that we displayed bias by granting SEIU’s injunctive relief
request while “fail[ing] to see through the coordinated attempts by SEIU [and its sister locals]
to subvert the good faith bargaining process by filing, at that time, over 20 frivolous unfair
practice charges, same as its sister locals did in other counties.” In support of this argument,
the County claims that between 2016 and 2018, “[a] simple review of the same conduct by
SEIU at the counties of San Diego, Ventura, and Solano reveal[s] that SEIU has a standard
practice of filing dozens of meritless PERB charges in an effort to get what it wants at the
bargaining table.”
This argument is inappropriate for several reasons, the most important of which is that
the merits of SEIU’s charges against the County were not before us in our decision to grant
injunctive relief (City of Fremont, supra, PERB Order No. IR-57-M, p. 19, fn. 8), and they are
not before us now. They are to be resolved through the established administrative process. If
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SEIU’s charges are ultimately shown to have been frivolous and pursued in bad faith, the
County’s remedy is to pursue its attorneys’ fees. (City of Alhambra (2009) PERB Decision
No. 2036-M, p. 19.)20 The County may not make an issue of the merits of those cases through
this disqualification motion.
We therefore reject the County’s arguments that we have demonstrated a fixed
anticipatory prejudgment concerning the cases consolidated here.
ORDER
The County of Riverside’s request for special permission to appeal the orders denying
disqualification in Case Nos. LA-CO-222-M et al. is GRANTED. The County’s appeal of
those orders and its motion to disqualify the Board itself and all other Board agents from
participating in Case Nos. LA-CO-222-M et al. are DENIED.
Members Banks, Shiners, and Krantz joined in this Decision.
20 We also note that the County provided no evidence in support of its claim regarding
the quantity or merit of the charges filed against the Counties of San Diego, Ventura, and
Solano in that timespan. So even if this issue were relevant, we would decline the invitation to
scour our own files for evidence supporting the County’s claim.
21