County of San Joaquin (Health Care Services) (PERB 1649M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

UNION OF AMERICAN PHYSICIANS
DENTISTS,

Charging Party, Case No. SA-CE-64-M

V. PERB Decision No. 1649-M

COUNTY OF SAN JOAQUIN (HEALTH CARE June 29, 2004

SERVICES)

Respondent.

Appearances: Gary Robinson, Executive Director, for Union of American Physicians &
Dentists; Steven B. Bassoff, Attorney, for County of San J oaquin (Health Care Services).

Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Union of American Physicians & Dentists (UAPD) to a
proposed decision (attached) of the administrative law judge (ALJ). The complaint alleged
that the County of San Joaquin (Health Care Services) (County) violated the Meyers-Milias-
Brown Act (MMBA)! by retaliating against Dr. David Gran (Gran) for his protected activities.
Specifically, UAPD alleged that the County terminated Gran’s employment because of his
organizing efforts on behalf of UAPD. Although the ALJ found that the County was partially
motivated by anti-union animus, the ALJ ultimately concluded that the County would have
terminated Gran’s contract even absent any protected activity. As a result, the ALJ dismissed

the complaint.

‘The MMBA is codified at Government Code section 3500, et seq.

The Board has reviewed the entire record in this matter, including the ALJ' s proposed
decision, UAPD's exceptions and the County's response. The Board finds the ALJ's findings
of
fact and conclusions
oflaw
to be free
of
prejudicial error and adopts the proposed decision
as the decision
of
the Board itself, subject to the discussion below.
DISCUSSION
In its exceptions, UAPD argues that the ALJ relied in part upon inadmissible hearsay in
violation
of
PERB Regulation 321762• Specifically, UAPD argues that part
of
the evidence in
the record that complaints were made against Gran consisted
of
hearsay statements. UAPD
argues that those hearsay statements would be inadmissible in a civil action, and thus, are
inadmissible here.
UAPD's argument must be rejected. First, the findings
of
the ALJ are not based solely
on hearsay. Indeed, even
if
the disputed evidence is not considered, the Board finds sufficient
admissible evidence in the record to support the decision. Second, for the hearsay evidence
that was admitted, the ALJ properly applied exceptions to the hearsay rule. Third, the
County's evidence that numerous complaints were made against Gran was not admitted for the
truth
of
the matter, but to demonstrate the state
of
mind
of
the County's decision-makers.
Submitted for this purpose, such evidence is not hearsay.
Next, UAPD urges the Board to take notice
of
its decision in County
of
San Joaquin
(Health Care Services) (2003) PERB Decision No. 1524-M (San Joaquin). In that decision, the
Board found that the County had unlawfully retaliated against Gran because
of
his protected
activities. UAPD argues that Gran's subsequent termination, which is the subject
of
the
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

current complaint, is nothing more than a continuation
of
the County's retaliatory conduct. As
a result, UAPD urges the Board to reach a similar finding.
The Board agrees that it may take notice
of
its decision in San Joaquin. However,
each separate unfair practice complaint must be decided on the merit
of
its own record. 	While
the ALJ found that anti-union animus played some role in the decision to terminate Gran, the
ALJ also found that the County would have taken this action anyway. The Board agrees.
Here, testimony established that Gran had numerous problems with his treatment
of
patients. There was also a pattern
of
complaints about offensive comments made by Gran
during patient examinations, where sensitivity is paramount. The Board finds that because
of
these problems, the County would have terminated Gran even absent any protected activity.
Accordingly, the complaint and underlying unfair practice charge must be dismissed.
ORDER
The unfair practice charge and complaint in Case No. SA-CE-64-M is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Duncan and Member Whitehead joined in this Decision.
3

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
UNION OF AMERICAN PHYSICIANS &
DENTISTS,
Charging Party,
V.
COUNTY OF SAN JOAQUIN (HEALTH CARE
SERVICES),
Res ondent.
UNFAIR PRACTICE
CASE NO. SA-CE-64-M
PROPOSED DECISION
(4/2/03)
Appearances: Gary Robinson, Executive Director, for Union of American Physicians and
Dentists; Steven B. Bassoff, Attorney, for County of San Joaquin (Health Care Services).
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union representing physicians alleges that a county hospital retaliated
against the physician who led its successful organizational campaign by refusing to renew his
term of employment.
The unfair practice charge initiating the action was filed on May 29, 2002, by the Union
of American Physicians and Dentists (UAPD) against the County of San Joaquin (Health Care
Services) (County). 1 Following an investigation, the Office of the General Counsel of the
Public Employment Relations Board (PERB or Board) issued a complaint on July 26, 2002.
The complaint alleges that by terminating Dr. David Gran's employment on May 15, 2002, the
UAPD amended its charge. On July 26, 2002, UAPD withdrew an
the County refused to meet and confer with respect to Dr. David Gran's
temlination.

County retaliated against Dr. Gran because he exercised rights guaranteed by the Meyers-
Milias-Brown Act (MMBA). 2 This conduct is alleged to violate sections 35033 and 35064 of
the MMBA and PERB Regulations 32603(a)5 and 32603(b).6 The complaint further alleged
2 MMBA is found at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
3 Section 3503 reads as follows:
Recognized employee organizations shall have the right to
represent their members in their employment relations with
public agencies. Employee organizations may establish
reasonable restrictions regarding who may join and may make
reasonable provisions for the dismissal of individuals from
membership. Nothing in this section shall prohibit any employee
from appearing in his own behalf in his employment relations
with the public agency.
4 Section 3506 reads as follows:
Public agencies and employee organizations shall not interfere
with, intimidate, restrain, coerce or discriminate against public
employees because of their exercise of their rights under
Section 3502.
5 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. Regulation 32603(a) reads as follows:
It shall be an unfair practice for a public agency to do any of the
following:
(a) Interfere with, intimidate, restrain, coerce or discriminate
against public employees because of their exercise of rights
guaranteed by Government Code section 3502 or by any local
adopted pursuant to Government Code section 3507.
6 Regulation 32603(b) reads as follows:
It shall be an unfair practice for a public agency to do any of the
following:
(b) Deny to employee organizations rights guaranteed to them by
Government Code section 3503, 3504.5, 3505.1, 3505.3, 3508(c)
2

that the County interfered with UAPD's right of access by removing union literature from
employee mailboxes and ordering Dr. Gran to remain off hospital grounds. This conduct is
alleged to violate sections 3503 and 3506 of the MMBA and PERB Regulations 32603(a) and
32603(b). 	The County answered the complaint on August 12, 2002, admitting certain
jurisdictional allegations, but denying the other allegations and denying that it had violated the
MMBA.
A formal hearing was conducted by the undersigned in Sacramento on October 2, 3, 28,
29 and 30, 2002. The matter was submitted for decision on December 17, 2002, following
submission of the parties' post-hearing briefs.
FINDINGS OF FACT
The County is a "public agency" within the meaning of section 3501(c). At all times
relevant, Dr. Gran was a "public employee" of the County within the meaning of section
3501(d).
The County's Health Care Services operates a hospital in Stockton known as San
Joaquin Community Hospital (Hospital). The Hospital provides acute care and fulfills the
County's obligations as a health care provider oflast resort. The Hospital has an obstetrics and
gynecology (OB/GYN) department with a staff of seven physicians, who deliver babies and
provide necessary care for new and expectant mothers. The OB/GYN physicians also see
patients on an out-patient basis.
or 3508.5 or by any local rule adopted pursuant to Government
section 3507.
3

Dr. Gran has been employed since 1994 as a physician in the County's OB/GYN
department. Dr. Gran completed his residency in 1986. He has been in private practice, is
licensed in other states, and has teaching experience.
Director of Health Care Services Roger Speed is the agency's chief administrative
officer. Speed is not a physician.
The medical provider staff of the Hospital is internally governed by a set of bylaws and
the Medical Executive Committee (MEC), which administers those bylaws. The MEC serves
as a peer review process for complaints about substandard treatment of patients. The officers
are elected by vote of the medical staff. Dr. Gran served as the president of the medical staff
from July 1999 through early 2001. Dr. Gran has also served as the chair of the Independent
Practices Committee, which oversees the activities of mid-level practitioners.
The physicians at the Hospital are part of a bargaining unit currently represented by
UAPD.
Dr. Gran's Protected Activities
Beginning in late 2000, Hospital physicians approached Dr. Gran in his capacity as
president 	the medical staff and asked him to facilitate an effort to unionize
Dr. Gran spearheaded the effort by investigating the merits of collective bargaining and
facilitating an ongoing debate. To this end, he contacted both UAPD and the Service
Employees International Union (SEIU). During this time, Dr. Gran communicated with
employees concerning the benefits of union representation and distributed written
communications to the staff. His efforts culminated with invitations of UAPD and SEIU to
make presentations to the medical staff in May 2001.
4

made the first presentation on May 23. UAPD followed on May 	Both
meetings were attended by the medical staff, including Dr. Lee Adams. Dr. Adams was the
associate medical director and chair of the anesthesia department. At the meetings, Dr. Gran
identified Dr. Adams as a representative of management and asked him privately to leave the
meeting. 	Gary Robinson, executive director of UAPD, also asked Dr. Adams to leave the
UAPD meeting. Dr. Adams refused on both occasions. Dr. Adams testified that he responded
to the two by stating that as a member of the medical staff and in light of his belief that the
bargaining unit had not been established, he had a right to attend. He expected to become a
member of UAPD if it were certified as the exclusive representative. After the meetings, he
!earned 	would not be in the bargaining unit.
On June 1, 2001, Dr. Gran distributed a memorandum to the medical staff regarding the
union presentations. Dr. Gran identified himself as the president of the employee organization
within the Hospital.
In late June 2001, and subsequently in November 2001, Dr. Gran drafted petition letters
protesting working conditions in the OB/GYN department, citing low morale and
management's lack of responsiveness to employee concerns. His signature appears on both
letters.
On July 24, 2001, the day after ballots were sent out for the UAPD representation
election, Speed placed Dr. Gran on administrative leave based on his conduct toward other
Gran was alleged to have created a climate of fear by 	staff a
was about to begin, telling employees they were about to be terminated, lying about who
the date for the representation election, and attempting to initiate a second election process for
the medical staff president. He also allegedly cancelled clinic appointments to attend meetings
5

to advocate for physician unionization. Speed ordered Dr. Gran "not to talk to hospital staff or
come to the workplace." This action prompted the filing of a separate unfair practice charge
with PERB (Case No. SA-CE-6-M) by UAPD on Dr. Gran's behalf and a request for injunctive
relief. PERB granted the request on the basis of a showing of reasonable cause that an unfair
practice had been committed, and the general counsel's office sought and obtained a temporary
restraining order from a San Joaquin County Superior Court judge on August 8, 2001. An
August 17, 2001, settlement agreement was arranged as to the related unfair practice charge,
whereby the County agreed, among other things, to withdraw the notice of administrative
leave.
A representation election was held in July 2001, and the results certified in August
2001. Dr. Gran was an observer at the ballot count.
UAPD filed another unfair practice against the County on October 9, 2001, alleging
that the County issued Dr. Gran two warning letters related to discussions of union matters at
the work site and ordering him to comply with a plan of corrective action that was issued by
the MEC for performance-related issues (Case No. SA-CE-19-M). The warning letters, the
second of which threatened termination, were issued on August 23, and September 17, 2001.
Speed, who issued the letters, relied in both instances on complaints forwarded to him by staff
physicians. The allegations of the unfair practice charge were litigated before the undersigned,
who issued a decision on May 16, 2002, finding in favor of Dr. Gran on all counts. 7 The
formal hearing was held on February 13 and 14, 2002, and Dr. Gran testified at that hearing.
In that case, I found that there was sufficient evidence to infer unlawful intent as to the MEC's
7 The County has filed exceptions to the proposed decision, but the Board has not
rendered a decision in the case.
6

decision to impose a plan of corrective action. I concluded that primary evidence of unlawful
intent centered around the initial departmental investigation that led to a formal
recommendation to the MEC and that the MEC as a committee, though it deliberated in a
manner that did not reflect overt discriminatory intent, essentially ratified that original
discriminatory referral by failing to conduct a full and impartial hearing.
UAPD established a bargaining team for the initial contract negotiations that included
Dr. Gran. The negotiations began in the fall of 2001 and continued through the summer of
2002. After reaching impasse, the parties, on July 17, 2002, agreed to terms for an initial
MOU. 	Dr. Gran was an active and vocal member of the team. Pam Reynolds, a County
bargaining team member, acknowledged to Patricia Hernandez, a UAPD representative and
member of the bargaining team, that Speed was aware of Dr. Gran's participation on the team.
Early Complaints Against Dr. Gran
Dr. Adams was a member of the OB/GYN department for many years. He was
department chair from 1994 through 2000. In 2001, he became the Hospital's associate
medical director. In this capacity he is the director of anesthesia, approves outside referrals,
recruits physicians for the Hospital and fills in for duty in the OB/GYN department.
Dr. Adams took credit for recruiting Dr. Gran into the department.
Dr. Adams identified an April 1998 patient complaint of unprofessional conduct against
Dr. Gran. According to the written complaint, the patient had been seeing Dr. Adams on a
s during her pregnancy. Dr. Gran was substituting on this occasion.
the room and introducing himself, Dr. Gran asked the patient why her pants were off when
due date wasn't for over two months. 	She explained that, as a result of complications in her
previous pregnancy, Dr. Adams had wanted her cervix examined on a weekly basis to ensure
7

that it was not dilated. At this point, Dr. Gran began making a series
of
remarks that were
offensive and rude to her, including ones
of
a sexual nature. Then Dr. Gran issued orders
contradicting Dr. Adams, who he said with a chuckle "was supposed to be his mentor." After
saying the Dr. Adams was "old school" he ordered the patient
off
disability and returned to
work, causing the patient to become extremely upset. The letter
of
complaint was forwarded
to
management.
Dr. Adams testified that he spoke with Dr. Gran about the complaint and recalled him
explaining that he was very tired and could not recall making the statement attributed to him.
Dr. Gran claimed that the patient was overreacting and taking things out
of
context. At the
hearing, Dr. Gran denied that anyone spoke to him about this complaint. I credit Dr. Adams on
this point. Dr. Adams recollection was clearer and more detailed than Dr. Gran's. Following
the complaint, Dr. Adams wrote to the patient advising her that all follow-up visits would be
scheduled with him. 	Copies were forwarded to Hospital administrators.
In March or April 2000, around the time that he was winding down his chairmanship,
Dr. Adams had occasion to relay some staff complaints about Dr. Gran to then-Director
of
Health Care Services Michael Smith and Dr. Dale Bishop. Dr. Bishop is the County's medical
director. He serves in an administrative capacity in overseeing the operations
of
the medical
staff, attending to such matters as supervision
of
the business aspects
of
patient care, including
such matters as reimbursement
of
fees, malpractice, and harassment.
Drs. Lee and Sebastian, two OB/GYN physicians, had complained to Dr. Adams
about Dr. Gran's check-out procedures. When an OB/GYN physician is completing one of
24-hour rotations in labor and delivery, he is required to adequately document the conditions of
the patients whom he has treated. There were other complaints about Dr. Gran's relationships
8

with the Family Practice Medicine group and less than exemplary availability in supervising
residents. Several meetings were held with Dr. Gran to discuss these matters. They included
Drs. Bishop, and Adams, Smith, and Administrative Director Elaine Hatch.
During the same time frame of these events, or approximately June 2000, Dr. Gran, as
medical staff president, called a meeting of the nominating committee of the medical staff.
Dr. Bishop attended, among others. Dr. Gran was unhappy about the nominating process for
chair of the OB/GYN department. He perceived that there was a faction supporting Dr. Lee's
nomination to succeed Dr. Adams. The practice at the Hospital is for the department staff to
develop a consensus nominee. In this case, no consensus had developed. Dr. Lee was
nominated by Dr. Rebecca Stanley. Dr. Gran was nominated by Dr. Philip Ross. Dr. Bishop
questioned why there was no consensus. Dr. Stanley explained that Dr. Gran's supporters
viewed themselves as the "non-administration track." As an example of the disaffection of this
group, Dr. Stanley cited a complaint that the staff was not involved in the interviewing of
Dr. Kirby Tran, a new hire. Dr. Bishop testified that he had heard that Dr. Tran reported to
Dr. Adams that her interview with Dr. Gran had gone really well, a reason why she had
decided to accept the Hospital's offer.
Dr. Gran testified that not just Dr. Stanley but the entire department considered the
problem oflack of participation in the interviewing process to be an ongoing one.
Dr. Bishop testified that when he asked Dr. Gran at the meeting if he had been involved
m the interview, Dr. Gran denied that he was. Dr. Bishop reported the results of the meeting
and Dr. Gran's statement to Smith immediately after it concluded. Smith affirmed to
Dr. Bishop that Dr. Gran had been involved in the interviews. Dr. Bishop testified that Smith
was upset that Dr. Gran would create the falsehood regarding his nomination to be chair.
9

Smith told Dr. Bishop he could no longer work with Dr. Gran because of his duplicity. 	He also
directed Dr. Bishop to inform Dr. Gran that his name would be removed as a nominee.
Dr. Bishop further testified that when he spoke with Dr. Gran two hours after the meeting,
Dr. Gran claimed he could not remember any discussion at the meeting concerning Dr. Tran.
Dr. Bishop described Dr. Gran's interaction in these terms:
And it was in the context of what Dr. Adams had said before,
Dr. Adams['s] complaints through the Spring were that it seems
like there's this constant tendency of Dr. Gran to get people kind
of against him or against each other, so that the Department kind
of falls apart. It gets polarized. And Mr. Smith's interpretation
of that comment, mine also was it was kind of a polarizing
comment.
Dr. Gran acknowledged in his testimony that he met Dr. Tran prior to her hiring during
one of his 24-hour shifts, and he talked informally with Dr. Tran, on and off, for an hour or
two. He did not consider this an adequate process for interviewing potential hires. 8
When Dr. Gran denied he interviewed Dr. Tran, Dr. Bishop suggested that Dr. Gran
remove his name voluntarily and produced a letter to that effect for Dr. Gran's signature. He
agreed to sign it but asked what would happen if he didn't sign it. In the prior PERB case,
Dr. Gran testified that he complained to Smith after the installation of Dr. Lee as chair
department and suggested that the administration manipulated the process for selecting
department chairs. Dr. Gran also believed that his withdrawal from the competition was the
result of the administration's erroneous interpretation of the MEC bylaws. Dr. Gran threatened
legal action or a complaint to the County's board of supervisors. According to Dr. Gran, Smith
8 Dr. Tran would testify that she was not involved in a "formal" interviewing process.
10

told him that as president of the medical staff he was part of administration and should
by its decisions.9
Dr. Gran had requested a meeting with the administration to discuss the nominations
controversy. The meeting was attended by Smith, Hatch, Dr. Bishop, and Dr. Adams.
Dr. Bishop testified that Smith tried to open the meeting on a constructive note. Dr. Gran was
anxious about the performance concerns surrounding him. 	At some point, Smith claimed he
could not work with Dr. Gran because he created divisions within the staff. He cited
complaints made to him earlier by Dr. Adams. Smith called Dr. Gran a "70 percenter."
Dr. Gran asserted to Smith that the medical president was more important that the medical
to which Smith responded that he viewed it entirely the opposite. Dr. Bishop believed
that this destroyed what chances remained for repair of the Smith-Gran relationship.
Within a week or two after the chair election meeting with Smith, a counseling
memorandum dated July 8, 2000, drafted jointly by Drs. Adams and Bishop, was issued to
Dr. Gran concerning the recent staff complaints. 10 It acknowledged Dr. Gran's value to the
department but listed eight bullet points regarding areas where improvement in performance
was expected. The eight points were: (1) better availability following his rotation in Labor and
Delivery to facilitate transfer of important clinical information on patients; (2) more positive
relationships with family practice faculty; (3) better availability to residents and closer clinical
(4) more sensitivity to patient needs and self-awareness about possibly insensitive
9 This background information is taken from my proposed decision in Union of
American Physicians & Dentists v. County of San Joaquin (Health Care Services) (Case
No. SA-CE-19-M).
10 Smith suggested earlier, in April, that Dr. Adams issue the counseling memorandum
to an inquiry from the doctor.
11

verbal comments; (5) dressing in more professional manner by limiting scrubs to Labor and
Delivery duty; (6) being less divisive in role as president of medical staff by avoiding casting
blame without investigating problems; (7) being supportive of Dr. Lee in his new role as
department chair; and (8) better understanding of the roles of medical staff in relation to
management as contemplated by the medical staff bylaws. The memorandum alluded to the
dispute regarding the department chair position, which was deemed a separate matter.
In addition to the matters noted above, the memorandum requested that Dr. Gran
interact more "positively" with administration given his new position as president of the
medical staff, and speak with more sensitivity in patient encounters. 	Dr. Adams told
Dr. Bishop he was reluctant to issue the letter because of Dr. Gran's positive role in recruiting
Dr. Tran. Although the decision was made to issue the letter, Dr. Bishop spoke to Dr. Gran
before its issuance to advise him of it in advance and to reiterate that it was issued in the spirit
of constructive criticism.
Dr. Adams testified that the memorandum was also issued progressively, that is, after
previous informal counselings beginning in 1995 had been only intermittently effective.
Dr. Adams believed that Dr. Gran's performance improved for a short period of time following
the memorandum, but then "the same problems began to reappear." Dr. Adams testified that
Dr. Gran's response to other physicians' requests to improve his sign-outs was to deny any
problem and assert that his partners were as bad or worse. By comparison, other physicians
responded positively to constructive criticism, in Dr. Adams's opinion. Dr. Adams also
asserted that Dr. Gran had from the outset raised baseless complaints about other physicians.
Dr. Gran was upset about receiving the letter and asked if he was going to be terminated as a
result of the matter.
12

In the fall
of
2000, Hatch reported to Dr. Bishop that Dr. Gran had been spreading the
rumor that nurse practitioners had been excluded from a noon conference planned
by
Dr. Gran
and Hatch. 	This caused the administration to receive a number
of
complaint calls from nurse
practitioners and upset Hatch. Dr. Gran did not recall this incident well enough to formulate a
response. Similar complaints were rnceived from nurse mid-wives around the same time.
They reported that Dr. Gran had told them they were not invited to Dr. Tran's welcoming
dinner. Dr. Bishop sent a counseling memorandum to Dr. Gran regarding improving
his
relationships with others in the department.
In January 2001, Dr. Bishop became aware
of
complaints from Phyllis Barenchi, the
lead secretary in administration and secretary for the medical staff meetings. Barenchi
complained to Hatch, her supervisor, on several occasions. Each time, Hatch testified that
Barenchi was extremely upset when she spoke with her. Barenchi did not testify at this
hearing. One complaint involved an allegation by Dr. Gran that Barenchi had steamed open
secret ballots in the election for president in which Dr. Rodney Felber and Dr. Gran were
competing against one another, and Dr. Felber had won. Dr. Gran made this allegation at
several meetings attended
by
medical staff, but never offered any evidence to substantiate the
claim.
Hatch advised Barenchi to put her complaints in writing, and she began to do so.
Barenchi complained that Dr. Gran suggested that she get a bigger chair, a reference to
Barenchi's size in her opinion, in a conversation in which she indicated that she 	not
retiring anytime soon. Dr. Gran recalled that conversation differently. 	testified 	he
offered one
of
two, unused executive chairs in his office out
of
sympathy for her needing to
continue working. Barenchi complained that Dr. Gran made remarks to others that Barenchi
13

and her staff were being "vultures and scavengers" because Barenchi invited her staff to
partake in the lunch buffet provided at physician committee meetings. Barenchi did not want
the excess food to go to waste. 	On another occasion, Barenchi asked Dr. Gran about a speaker
for a medical staff quarterly meeting. Barenchi informed him about a request from an analyst
from the state Department of Social Services who had requested the opportunity to speak about
operational efficiencies in dealing with disabled patients. Dr. Gran dismissed the topic as not
valuable. When Barenchi attempted to read some lines from a description of the presentation
and stumbled over some words, Dr. Gran told her, "I can read better than you and I have been
up 24 hours." In the fourth of the documented complaints, Barenchi wrote that she, Dr. Gran
and another staff member were discussing practices of the medical staff, and Barenchi asserted
that some practices had always been in place. Dr. Gran objected to the status quo. When he
stated that "administration" needs to "butt out," Barenchi responded that the practice was
required by licensing authorities. 11 Dr. Gran's retort was, "Its like having sex with your
husband, once you have done it, it never changes." Barenchi was offended.
After Barenchi had complained to Hatch three times, Hatch met to discuss the
complaints with Dr. Gran. Dr. Gran told Hatch that he was only trying to be humorous and he
denied his statements carried any implied meaning that should have been offensive to
Barenchi.
At the hearing, Dr. Gran denied that the incident regarding the proposed speaker was
brought to his attention. Dr. Gran had requested several times of Hatch that he have a
secretary not in administration to do his typing and other tasks while he was the medical staff
president. Based on his requests as well as statements by Barenchi made to OB/GYN
11 Dr. Gran once told Hatch that he did not trust members of the administration.
14

secretaries that only she would do Dr. Gran's typing, Dr. Gran concluded Barenchi may have
been biased against him because of the dispute. He believed the issue of ballots was another
source of controversy between them because he had spoken to her about them on several
occasions. Without being specific, Dr. Gran suggested that there was a problem with the ballot
system being run by the administration.
Dr. Sheila Kapre, who currently holds several positions including chair of the internal
medicine department, director of the internal medicine residence program, director the
intensive care unit and medical director, was once told by Dr. Gran during his tenure as
medical staff president that he thought the hospital was "an impossible place," where nothing
gets done and staff is unhappy. Dr. Kapre was led to believe that this view, as well as
Dr. Gran's repeated statement to her that the president's position was unappreciated, prompted
his statement of intention not to run for a second term as president. This was on the occasion
when Dr. Felber was elected president of the medical staff in May 2001. According to
Dr. Kapre, at the time he was nominated by his fellow physicians, Dr. Felber did not believe
Dr. Gran was interested in running for the position. Indeed, Dr. Gran approached him and
asked him why he was interested in the position since it was a "big headache." Yet, after
asking Dr. Kapre to seek the position and being rebuffed, Dr. Gran told Dr. Kapre that he
intended to advise Dr. Felber not to run because it was not a worthwhile position. After
Dr. Felber was nominated at a nominating committee meeting attended by Dr. Gran, during
which Dr. Gran expressed no interest in the position, Dr. Gran commenced a write-in
campaign to elect himself to the position.
Dr. Kapre also related that a second-year resident complained to her that while doing
her gynecology rotation she became very uncomfortable by comments made by Dr. Gran to a
15

patient during an examination observed by the resident. The experience prompted her at the
time to wish that her gynecology rotation would end. Dr. Kapre also testified that another
physician complained to her about being uncomfortable about Dr. Gran approaching her
individually to request her vote for UAPD. This physician and others apparently thought
Dr. Gran's tactics were intrusive.
The First MEC Investigation
Dr. Stanley has been a staff physician in the OB/GYN department for seven years.
Sometime in May 2001, she had a discussion with Dr. Adams in which Dr. Adams told her,
"Dr. Gran has got to go." Dr. Stanley admitted in the prior hearing that she was intimidated
and considered looking for other employment. Dr. Adams did not testify in the prior hearing.
In this hearing, Dr. Adams recalled having a conversation with Dr. Stanley about Dr. Gran, but
claimed it would be atypical
of
him to make a statement like Dr. Gran "has got to go." He
believed Dr. Stanley's testimony may have resulted from taking the conversation out
of
context
and suggested that it was Dr. Stanley who had brought "serious concerns" to him about
Dr. Gran. Because Dr. Stanley did not corroborate the latter claim, testifying in this hearing
only that the conversation was a "general" one, I find that Dr. Adams did make the statement
and that Dr. Stanley understood it to mean that Dr. Adams wanted Dr. Gran terminated.
Although l do not find Dr. Adams credible on this point, I otherwise found him to be a credible
was formal yet congenial, mild in disposition, yielding at times, and not revealing
of
any bias, at least overtly.
In June 2001, Dr. Lee, then-OB/GYN department chair, again accused Dr. Gran
of
failing to properly check-out patients which Dr. Lee inherited as the physician following
16

Dr. Gran's shift. 12 Dr. Lee convened two meetings of the OB/GYN staff, which also included
Hatch. At these meetings, Dr. Lee demanded that Dr. Gran explain patient care issues
involving a number of patients, whose charts he was given. In my previous decision, I found
that the manner in which Dr. Gran was questioned about these patients was irregular, the
timing of the investigation, Dr. Adams's "got to go" statement, and other points established
evidence of unlawful animus. Dr. Lee referred his concerns to the MEC for a formal inquiry.
The MEC concluded its inquiry in October 2001, following the presentation of a
defense by Dr. Gran. The MEC found that Dr. Gran did not fail to render competent care to
the patients whose cases were referred. However, the MEC, based on other concerns raised by
various members of the committee, ordered that Dr. Gran's clinical activities be monitored for
90 days and that he be required to participate in sexual harassment counseling and psychiatric
counseling.
Complaints Against Dr. Gran Following the MEC Investigation
Dr. Stanley succeeded Dr. Lee as chair of the OB/GYN department in November 2001.
As chair, Dr. Stanley's duties included directing the department, scheduling physicians
their call schedules and clinic schedules, and overseeing the quality of care. Following the
MEC plan of corrective action, Dr. Stanley was given responsibility to oversee the 90-day
monitoring process. Dr. Stanley met with Dr. Gran and expressed confidence in his clinical
assured 	that she had never had any problems with his sign-outs. During the
monitoring period, there were no issues regarding Dr. Gran's delivery of patient care.
12 This background information is taken from my proposed decision in Union of
American Physicians & Dentists v. County of San Joaquin (Health Care Services)
l
17

However, Dr. Stanley did receive two written complaints from patients around November or
December 2001, regarding Dr. Gran's alleged lack
of
professionalism in dealing with them.
The first patient complained that Dr. Gran made disparaging jokes during his
examination
of
her, which included a rhetorical question to her about whether she believed in
the Immaculate Conception since she was Catholic. The second patient complained that
Dr. Gran accused her husband
of
being sexually active with other partners, and speaking to her
in a very demeaning tone. Dr. Stanley discussed the complaints with Dr. Gran and told him
she believed his conduct was inappropriate and unprofessional. Dr. Gran told her that he did
not recall the patients and essentially denied responsibility. Dr. Stanley did concede that
because the second patient complained
of
pelvic pain, it would have been appropriate to
inquire as to whether the patient's husband was sexually active outside
of
the marriage.
In January 2002, Dr. Adams reported to Hatch that a physician named Dr. Miro
Grgurevic complained about Dr. Gran making an offensive and sarcastic remark to him.
During a heated discussion about the posting
of
salaries reflecting additional compensation for
extra hours, Dr. Gran told Dr. Grgurevic that he "sounded like a Communist." Dr. Grgurevic
has a family that suffered in a country under communist rule. Dr. Grgurevic objected to the
posting
of
the salaries because it revealed he had earned a substantial amount
of
additional
compensation. Dr. Gran couldn't recall ever calling Dr. Grgurevic a communist and no one
from management reported the complaint to him.
In a February 8, 2002, memorandum from Dr. Felber on behalf
of
the MEC, Dr. Gran
was warned that his continued failure to complete sexual harassment training and psychiatric
counseling, as directed by the October 2001 notice of corrective action, could result in further
disciplinary action. 	Dr. Gran testified that he had appealed the corrective action through the
18

procedure provided in the medical bylaws and had not yet had his hearing on the matter.
Also, the PERB hearing on the matter of the MEC's action was set for formal hearing on
February 13, and 14, 2002. 	Nevertheless, Dr. Gran made several attempts to schedule the
sexual harassment training through the County. However, he did not get a response from the
contact person he called. On February 19, 2002, Dr. Gran received the sexual harassment
training registration form from the County contact person, who had been off work for several
weeks. Because he was scheduled to be on vacation for the first class in March, he scheduled
the next class on May 28, 2002. Dr. Gran was given notice of his termination on May 15,
2002, and so he did not attend the training. Dr. Gran also attempted to schedule the psychiatric
counseling, but after learning that the sessions would entail 10 to 12 hours, he balked at the
potential cost and asked his attorney to contact the County to determine who would accept the
bill. His attorney got no answer.
In a February 12, 2002, memorandum, Dr. Felipe Dominguez, chair of the pediatrics
department, wrote to Dr. Bishop reporting that several members of the department were
uncomfortable around Dr. Gran because of repeated inappropriate, unwelcome comments and
his intimidating demeanor. 13 He asserted that most of the providers would "definitely not"
consider referring young female patients to Dr. Gran. Copies were forwarded to Drs. Stanley
as 	as Speed. The underlying complaints were not raised with Dr. Gran, and
believes that Dr. Dominguez had become very angry recently with him, and, without being
specific, he attributed this to his union activities.
13 One incident was documented by a nurse in the unit. The nurse complained that
Dr. Gran interjected himself into a conversation she was having with another doctor, and on
another occasion, whispered an unwelcome comment into her ear. At the hearing, Dr. Gran
recalled the nurse asking, and himself answering, questions about employment opportunities.
He denied doing anything to intimidate her.
19

In February 2002, Dr. Stanley had occasion to speak with Dr. Gran about improper
"check-out" procedures as to a patient admitted for elevated blood pressure, a condition of
pregnancy. 	When an OB/GYN physician rotates off the hospital floor, he is required to alert
the incoming physician to problematic patients and, when necessary, describe a plan of
management to follow. 	Pregnant patients exhibiting high blood pressure are considered high
priority. At the time of check-out, more than 12 hours after the patient had been admitted,
Dr. Gran had failed to see her, write any notes in the chart, review any care management with
the patient, or have any plan of management. When Dr. Stanley confronted Dr. Gran, he had
no explanation for not seeing the patient. Dr. Stanley ordered Dr. Gran to see the patient and
develop a plan of management before responsibility for her case was transferred.
Dr. Stanley also received complaints about Dr. Gran from Dr. G. Cavallaro, the chair of
Family Practice, regarding his supervision ofresident interns. Dr. Cavallaro did not testify at
the hearing. Family Practice trains residents in the OB/GYN practice and part of the training
involves learning to deliver babies. In February 2002, Dr. Cavallaro passed on a complaint
from a resident who was having difficulty with a high-risk delivery and called for Dr. Gran's
assistance several times. Dr. Gran was slow to respond. When he did respond, he allegedly
did nothing to assist the intern.
Dr. Gran testified that he responded to the case by running into the delivery room,
where the premature baby was delivering rapidly. Dr. Gran gave the intern instructions on
how to deal with the high-risk delivery. 	Dr. Gran did not have time to find another pair of
gloves to put on himself and so he had the intern handle the delivery with his consultation.
The baby was transferred to neonatology but did fine.
20

In March 2002, Dr. Cavallaro related another incident to Dr. Stanley involving
Dr. Gran. The nurse in charge of labor and delivery approached Dr. Cavallaro regarding
Dr. Gran's cavalier response to another intern having difficulty with a delivery: in this case,
the baby's head had come out, but the shoulders were not delivering. Dr. Gran had allegedly
been called several times on the intercom system and on his personal pager twice. Dr. Gran
was seen in the hallway conversing with others. When he arrived, the baby had already
delivered.
Dr. Gran claimed that due to some problem with signing out, he was not informed that
the intern was handling the second delivery. He responded to the emergency page and walked
briskly to the delivery room. When he arrived, he asked ifthere were any problems but
everyone was smiling and no one requested any assistance from him. Dr. Stanley testified that
she found these complaints credible because of her own personal observations of Dr. Gran as
someone who was lax and likely to just "sit in his chair." Dr. Stanley did not speak to
Dr. Gran about either of these cases.
On March 6, 2002, Dr. Stanley called Dr. Gran to inquire whether he knew the names
of two physicians who had retired. At the end of the conversation, Dr. Gran concluded the
conversation with the words, "hugs and kisses," and then hung up the telephone. Dr. Stanley
wrote to Speed insisting that someone speak to Dr. Gran about the inappropriate remarks to his
supervisor. Dr. Gran offered to apologize to Dr. Stanley personally and never repeated that
phrase to her.
In April 2002, Dr. Tran complained to Dr. Stanley that Dr. Gran had not red-flagged a
potentially serious patient when checking out to her. The patient had a vaginal delivery but her
was retained. The patient experienced a significant amount of bleeding, followed by a
21

drop in blood pressure. 	She required multiple blood transfusions and required an additional
surgical procedure to remove the placenta. The delivery was performed by Pam Long, a mid-
wife, but Dr. Gran was in charge that shift.
Dr. Tran testified that Dr. Gran's notes on the sign-out sheet only indicated that the
patient had post-partum hemorrhaging, a routine complication. About four hours after
Dr. Tran came on duty, or around noon, it was reported to her that the patient had a very low
urine output. Dr. Tran ordered an emergency lab test. As a result, she ordered a blood
transfusion, and the patient responded. About 5 :00 p.m., Dr. Tran was called to see the patient
urgently. 	She saw the patient experiencing seizures. Entering her vagina, Dr. Tran removed
some of the placenta. Upon further investigation, Dr. Tran learned from the nursing crew that
the patient had bled much more than was indicated on the chart and that only "minimal things"
were done for her before Dr. Tran came on duty. Although Dr. Tran had never experienced a
similar problem following Dr. Gran, she believed that Dr. Gran appears not "to know all the
patients very well" and that there are matters to which he could attend while on-call, which fail
to get done.
Long told Dr. Tran that she reported the retained placenta to Dr. Gran. Dr. Gran
ordered a medication to stimulate expulsion of the placenta. The placenta came out
approximately 90 minutes after the delivery of the baby. She reported in the chart that the
placenta was in pieces. Dr. Gran did not appear in the patient's room until this time. Long
told Dr. Tran that she asked Dr. Gran to inspect the birth canal to determine 	the placenta
come out completely. She didn't learn if Dr. Gran actually did that.
Subsequently, the patient was transferred to the intensive care unit where she suffered
renal compromise and required additional blood transfusions. Dr. Tran's complaint was that
22

Dr. Gran had not adequately presented the case to her when he checked out of his rotation, had
not adequately treated the patient's blood loss, and his failure to remove a large part of the
placenta exacerbated the patient's hemorrhaging. Dr. Tran asserted to Dr. Stanley that the
patient almost died because of negligence on Dr. Gran's part. I found Dr. Tran to be a credible
witness.
Dr. Gran testified that Long was a very competent nurse midwife. The delivery was
expected to be routine. Dr. Gran had gone to sleep at the time of the delivery around 5:00 a.m.
In a call it was reported to him that the placenta was retained. Dr. Gran responded that the
attending providers should wait a little longer. Thirty minutes later, he received the same
report. Dr. Gran inquired about significant blood loss and the response was negative. He
ordered drugs to hasten the delivery of the placenta. When further complications were
reported, Dr. Gran attended. A loss of blood pressure was countered with fluids. Blood loss
was noted, as was the pain reported by the patient. When Dr. Tran came on, Dr. Gran advised
her that he had been administering fluids. He claimed that Long advised Dr. Tran that
was significant blood loss and that the patient should be monitored. He checked twice more on
the patient before checking out with Dr. Tran and leaving, at around 10:00 a.m. Dr. Gran
believed that the nurse mid-wife's chart note on blood loss was too conservative.
The patient's deterioration was considered a possible "sentinel event," triggering a
"morbidity and mortality" review of the case. The case was presented to the nurses and
physicians involved in the case for a quality-assurance discussion. It was reported that
Dr. Gran had once again been paged three times before responding to the patient. Dr. Gran
refused to accept any responsibility in the matter.
23

As a result, on April 16, 2002, Dr. Stanley took Dr. Gran out of the rotation, ordered
him to review the patient's chart, and suspended his hospital privileges pending further review
of all of Dr. Gran's problem cases. She referred the case to the MEC for review. During
Dr. Gran's tenure as president of the medical staff and member of the MEC (a total of six
one other referral not involving himself had been made to the MEC for
investigation, and that involved the death of a patient.
The MEC reviewed Dr. Stanley's referral and ultimately found that the patient's case
did not warrant disciplinary action based on substandard care. 14 On July 2, 2002, the MEC
agreed to reinstate Dr. Gran's hospital privileges. Based on recommendations of the MEC 's
internal review committee and an outside reviewer, the MEC also identified a list of concerns
to be addressed by Dr. Gran, if he desired "to have a successful practice at this hospital as a
member of the Medical Staff, " and ordered that he complete an out-of-state, professional
evaluation program prior to the expiration of his current term of employment. Among the
concerns were adequacy of patient work-ups and diagnoses, excessive reliance on staff to alert
him to patient care issues, 15 responses to pages, supervision of residents, and sensitivity toward
patients, and cooperation in the peer review process. The letter concluded with the caveat that
the MEC expected Dr. Gran's acknowledgement "for the first time" that his performance could
be improved, and that had this been shown at Dr. Gran's hearing before the committee on
April 23, there "likely would have been no action to restrict [his] privileges."
14 Long told the MEC that she expressed concern to Dr. Gran that the placenta did not
look right. Dr. Gran told the MEC that he assumed that Long did not want him to look at the
placenta because she did not insist that he do so.
15 The MEC asserted that Dr. Gran was wrong to assume that Long did not want him to
look at the placenta.
24

Dr. Gran responded in a September 27, 2002 letter, expressing dismay that he had not
been fully reinstated based upon the lack of clinical concerns sufficient to justify continued
restriction of his privileges and indicating that this, in part explained his failure to respond to
the list of concerns. Dr. Gran nevertheless did respond to the list of concerns. He also
proposed a class for improving communications skills, but asked the County to assume the
expense due to financial hardship. He cited the undersigned's decision in his favor in regard to
the point about cooperation with the peer review process. He did not indicate completion of
the program recommended by the MEC. 16
the time she made her referral to the MEC, Dr. Stanley no longer wished to have
Dr. Gran in the department and testified that she would not send a loved one to Dr. Gran. She
had come to the point where she refused to accept patients from Dr. Gran because of his lax
check-out procedures. Although this is a hospital setting, Dr. Stanley felt unreasonably at risk
for malpractice because of what she felt was a lack of reliable information from Dr. Gran
regarding the patients on his watch. Dr. Stanley believed that Dr. Gran's failure to conduct
exams of all patients during his shifts and poor check-outs were repetitive in nature. She was
aware that Dr. Lee had similar issues with Dr. Gran. However, she conceded that her concerns
about Dr. Gran only became serious in the last year of Dr. Gran's employment. Even at this
however, she was not prepared to recommend that Dr. Gran be terminated.
Dr. Bishop believed that Dr. Stanley previously had no agenda against
only came to have serious concerns about Dr. Gran around this time. Dr. Bishop knew from
Dr. Stanley that her colleagues were very upset by the April check-out problem and that
16 Dr. Bishop indicated that a malpractice action had been filed against Dr. Gran in
spring of 2002 regarding an ectopic pregnancy. No other details were provided.
25

Dr. Stanley came to her position about no longer working with Dr. Gran as a result. He also
knew that this was the third department chair to voice objections to working with Dr. Gran as a
team member. Dr. Bishop stated that the providers in labor and delivery have a very close
relationship because their work is complicated and difficult; poor communication places
patients at risk. In addition, Long reported to Dr. Bishop that she felt intimidated by Dr. Gran
and that Dr. Gran was so hostile to some other members of the department that patient care was
at extreme risk. In one conversation, Long was in tears discussing the hostility and anger
within the department with Dr. Bishop. I found Dr. Bishop to be probably the most credible of
the County's witnesses. He testified without hesitation and appeared to be a committed
professional, who was non-confrontational and could be objective. For example, Dr. Bishop
explained that when Dr. Gran challenged his credentials to be medical director and asserted he
knew a member of the board of supervisors who might assist in terminating certain unworthy
administrators, he withdrew from further interactions with Dr. Gran. Dr. Bishop testified that
no other physician had been cited with as many complaints as Dr. Gran.
noted above, Dr. Ross is also a member of the OB/GYN group. Dr. Ross
that Dr. Gran is capable of providing "good, competent care." In his opinion, Dr. Gran's
check-outs were "satisfactory" and that Dr. Gran flagged critical cases. Dr. Ross disputed
Dr. Stanley's contention that physicians in the OB/GYN department have the right to refuse
from the previous shift, because all of them work as a "team." Dr. Ross
also recounted his testimony from the previous hearing regarding the meetings in May 2001
when Hatch and Dr. Lee held the adversarial meeting with Dr. Gran regarding a list of patient
issues. He recalled Dr. Stanley being upset with the aggressive questioning at that meeting and
stating that she "couldn't handle" it.
26

Dr. Patricia Apolinaro, a Hospital pediatrician and fellow member on the UAPD
bargaining team, worked with Dr. Gran in labor and delivery on at least two occasions during
her eight years of employment with the County. She had never heard any complaints about
Dr. Gran from other staff members, and never had reason to complain about Dr. Gran's
handling of patients.
Cynthia Wood, a nurse who has worked with Dr. Gran in labor and delivery, believed
that Dr. Gran's behavior was always appropriate and that he was an effective member of the
team. Dr. Lee called Wood once for her assistance in identifying a patient that Dr. Gran had
seen, and she wondered why Dr. Lee was not asking Dr. Gran about the patient directly.
On April 22, 2002, Dr. Cavallaro reported to Dr. Bishop that Dr. Gran had told a newly
hired obstetrician that "he was foolish to accept a job at [the] Hospital and even more foolish
to buy a house because his job is at risk." On that day, Dr. Stanley also complained that
Dr. Gran was undermining her when he told the nursing supervisor that she should not follow
Dr. Stanley's recommendation to hire a particular nurse because the nurse had failed a class
nine times. Dr. Stanley made the hiring decision despite awareness that the nurse had had
some academic difficulties. Dr. Gran claimed he was only passing along information he knew
personally that the nurse had not been a serious student at one time.
At the MEC's February 19, 2002 meeting, the MEC had agreed to have Dr. Felber write
a letter of concern to Speed regarding Dr. Gran. For reasons not explained 	but perhaps
related to the April referral~ Dr. Felber delayed writing the memorandum until April 26, 2002.
In it, Dr. Felber claimed he was frustrated with the legal delays as well as the fact that new
complaints continued to be lodged against Dr. Gran. Dr. Felber stated that the MEC was
attempting to transfer responsibility for any future professional misconduct to Speed and the
27

board of supervisors, because the MEC's inability to reach closure on the October 2001, plan
of corrective action with respect to Dr. Gran's behavioral treatment, as well as liability
concems. 17 Dr. Gran appealed the decision, as provided in the bylaws procedures, but
Dr. Felber claimed that Dr. Gran had delayed and frustrated the process, in part by changing
his legal counsel. The appeals hearing was to have occurred within 60 days, but the entire
process had been delayed by over six months. Dr. Felber asserted that two department chairs
and several other staff physicians had resigned as a result of some of the issues related to
Dr. Gran. Dr. Felber himself suggested he might resign.
On April 29, 2002, Dr. Frederic Krueger, the director of Family Practice Residency
Program, complained to Dr. Bishop about Dr. Gran's whistling the tune "Popeye the Sailor
Man" whenever he approached. Dr. Krueger, a retired naval officer, felt this to be sarcastic
and irritating. 	Dr. Gran admitted whistling in the hallways, but was evasive as to whether the
tune was the "Popeye" tune, saying, "I usually whistled what's called the Sailor or the Pilot
Song or something - similar melody. It's trivial." He could not recall ever whistling the tune
in Dr. Krueger's presence. Dr. Gran denied he ever did anything toward Dr. Krueger that was
sarcastic or irritating and claimed he had several "quite pleasant" conversations with him.
Dr. Krueger was one of the physicians involved in a reported complaint about Dr. Gran's
work-time union campaigning discussed in the previous case.
On May 2, 2002, Dr. Gran had a number of conversations with another physician,
Dr. Lance Maki, during the day at an out-patient clinic. Dr. Maki was disturbed by
17 The copy of the memorandum entered into evidence included a two-page addendum
listing various complaints lodged against Dr. Gran. Dr. Felber testified that this was not
attached to the original sent to Speed. UAPD claims that Speed contradicted Dr. Felber by
testifying that it was. I do not read Speed's testimony as a direct admission of that, and I do
not find that the matter bears on the credibility of either witness.
28

reported them to Dr. Adams. Dr. Maki reported that Dr. Gran attempted to engage him
(Dr. Maki) in discussions about Dr. Gran's legal issues (which Dr. Maki rebuffed) and to show
him legal papers. Dr. Gran also spent time talking with his attorney during clinic hours.
Gran told Dr. Maki that he thought he had a great job with great pay and little work to do.
Dr. Gran implied that he was happy with what had transpired with his union and
because it was costing the County a great deal of money. In a memorandum to Speed,
documenting Dr. Maki' s complaint, Dr. Adams concluded: "This is another demonstration of
Dr. Gran's disruptive behavior and the apparent pleasure his [sic] getting from it." Dr. Gran
acknowledged discussing the union with Dr. Maki but insisted that they occurred "in between
patients on break" and "off-work times."
On May 8, 2002, Dr. Dee Pak Shrivastava, who is ofindian descent, lodged a
complaint with Dr. Bishop that Dr. Gran told him that he looked "like someone who can fly an
airplane, but can't land one," which Dr. Shrivastava interpreted was an insinuation he could be
an 	,_,,u,-,uu. terrorist. Dr. Gran denied making this statement, adding,
making that comment." He was not confronted with the complaint.
The County's Decision to Terminate Dr. Gran
Speed was responsible for making the recommendation for Dr. Gran's
separation to the board of supervisors. Beginning in December 2001, he instructed Dr. Bishop
to forward all complaints regarding Dr. Gran to him. In January 2002, Speed decided to
initiate an investigation of Dr. Gran because of the number of complaints that Dr. Bishop and
others had been receiving. The County's equal-employment-opportunity officer recommended
an investigator who would be seen as neutral. Speed retained the investigator.
29

Speed made his decision, set forth in a memorandum dated May 14, 2002, before the
outside investigator's report was completed. Speed could recall only one other instance in
which an outside investigator had been hired, and that case involved a physician's possible
Medi-Cal fraud.
The memorandum itself did not state the reasons for the termination. Dr. Gran and
UAPD tried unsuccessfully to ascertain the reasons after the notice was delivered to Dr. Gran
on May 15, 2002 at the Hospital. 	On that day, Speed requested that Dr. Gran meet with him.
Dr. Gran refused to such a meeting without union representation. Speed nevertheless
approached Dr. Gran, handed him the memorandum, told him to get his belongings, and
ordered him off the premises immediately. The notice advises Dr. Gran that he may no longer
treat patients on behalf of the Hospital, although he retains hospital admitting privileges. The
notice also provides for pay through August 12, 2002, or the expiration of the 90-day notice
period for non-renewal of the employment contract. Dr. Gran's contract, typical of those of
other physicians at the Hospital was for an initial one-year term, ending on June 30, 1999, and
self-renewing for successive years, subject to termination by either party with 90 days notice.
At the hearing, Speed offered his reasons for the decision. These included the number
of complaints against Dr. Gran that led Speed to believe that Dr. Gran was not a good
employee, used poor judgment, and spread falsehoods intended to create dissension within the
staff. At the same time, Speed was aware of the patient care issues surrounding Dr. Gran, and
he made the decision even though the MEC later reinstated Dr. Gran's medical privileges. He
was told of Dr. Stanley's position on Dr. Gran through Dr. Bishop. Speed believed Dr. Stanley
to be objective and that her opinion was corroborated by Dr. Felber's April 26 letter on behalf
of the MEC. He interpreted that letter as a "no-confidence" vote by Dr. Gran's colleagues, and
30

he was concerned with the threat of more physicians resigning because of Dr. Gran. Speed
called the letter unprecedented and he was "shaken" after reading it.
With respect to poor judgment in interacting with patients, Speed cited Dr. Gran's
inappropriate comments of a sexually suggestive nature, and insensitive ethnic comments. 18
With respect to the falsehoods, Speed cited Dr. Gran's assertion that Barenchi had
steamed open the ballot envelopes during the medical staff president's election, his claim made
at the prior PERB hearing that the physicians who met to counsel him prior to the September
2001 MEC meeting warned him that he could lose his house if he did not play a submissive
role before the committee, 19 and his statements to staff that the Hospital was firing all of the
old doctors.
With respect to creating dissension, Speed cited Dr. Gran's characterization of the
hospital as "not a good place to work" and one where you had to "watch your back." Speed
also cited Dr. Gran's claim that he was protected by a member of the board of supervisors who
was a friend.
At the hearing, Dr. Bishop added that he was of the opinion that Dr. Gran was
competent to practice medicine but that "on a relationship level" he was deficient. He believed
that Dr. Gran's poor relationship skills did compromise his patient care to some extent.
Dr. Bishop cited Dr. Gran's conflicts with Drs. Stanley, Adams and Lee. He noted that
Dr. Stanley refused to work with Dr. Gran any longer.
18 Dr. Bishop had received complaints that Dr. Gran showed a lack of cultural
sensitivity to Spanish-speaking patients.
19 Speed was not present at the meeting at which Dr. Gran was counseled
colleagues.
31

Post-Termination Events
After Dr. Gran left the County he was briefly retained by the Gill Group, a private
OB/GYN group practice. Dr. Raymond Bums of the Gill Group testified that in July 2002, a
patient complained to a nurse practitioner about Dr. Gran. The patient claimed that she
suffered sexual harassment during her visit with Dr. Gran. Interviews with other staff
members who had worked with Dr. Gran were then conducted. Finally, Dr. Burns met with
Dr. Gran to discuss the patient's complaint. Dr. Burns testified they had a "lengthy
discussion" at the conclusion of which, he terminated Dr. Gran and advised him to undergo
counseling. It was later reported to Dr. Burns that the patient continued to undergo counseling
therapy at the time of this hearing. Dr. Bums testified that Dr. Gran did not deny the
accusation. Dr. Gran was noncommittal about seeking counseling, according to Dr. Bums.
Dr. Gran acknowledged having the discussion with Dr. Burns about the patient
complaint. He claimed that his questioning of the patient was of a routine nature relating to
whether she was sexually active. He wanted to know if she was active with men or women.
He recalled Dr. Burns stating that things just "weren't working" and that Dr. Gran's parting
was a mutual separation. He denied that Dr. Burns recommended counseling regarding sexual
harassment. Dr. Gran was evasive during this line of questioning, stating that Dr. Burns may
have suggested that he attend a "meeting on communication skills." I credit Dr. Burns's
testimony in this matter. He testified forthrightly, without hesitation, and his recollection of
the events appeared sharp. Dr. Bums had no apparent interest in these proceedings. Dr. Gran,
on the other hand, was evasive and slow to respond to questions concerning the matter.
32

ISSUE
Did the County retaliate against Dr. Gran for his protected activities when the County
terminated him from employment?20
CONCLUSIONS OF LAW
The complaint in this case alleges that the County terminated Dr. Gran from
employment "because of' his exercise of activities that were protected under the MMBA.
Section 3506 of the MMBA and PERB Regulation 32603(a) prohibit such conduct. To
establish a prima facie case of discrimination under these provisions, the charging party must
show that: 	(l) the employee exercised rights under MMBA; (2) the employer had knowledge
of the exercise of those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained or coerced
the employee because of the exercise of those rights. 	(Campbell Municipal Employees
Association v. City of Campbell (1982) 131 Cal.App.3d416 [182 Cal.Rptr. 461] (Campbell);
San Leandro Police Officers Association v. City of San Leandro (1976) 55 Cal.App.3d 553
[127 Cal.Rptr. 856] (San Leandro).)
To prove this violation, UAPD bears the initial burden of showing evidence that
Dr. Gran engaged in protected activity, that the County knew of the activity, and that the
protected activity was a "motivating factor" in the County's decision to impose the plan of
20 I find that UAPD has waived its claims, as alleged in the complaint, that the County
interfered with employee rights by removing union literature from employee mailboxes and
banning Dr. Gran from Hospital grounds. No evidence was presented as to the mailbox issue,
nor was it argued in UAPD's post-hearing brief. As to the ban on Dr. Gran, the issue was not
argued in UAPD's post-hearing brief, nor was any remedy requested in that regard. 	In any
event, as to the latter claim, there is insufficient evidence on which to base any finding against
County.
33

corrective action. (California State University, Hayward (1991) PERB Decision No.
Novato Unified School District (1982) PERB Decision No. 210.) 21 Motivation may be proven
by either direct or circumstantial evidence, or a combination of both. (Carlsbad Unified
School District (1979) PERB Decision No. 89.) To establish that the employer was motivated
to impose reprisals because of the exercise of protected rights, the charging party may rely on
circumstantial evidence, such as a departure from standard procedures (Campbell, supra, 131
Cal.App.3d at p. 424), disparate treatment (San Leandro, supra, 55 Cal.App.3d at pp. 557-558;
Los Angeles County Employees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683,
688 [214 Cal.Rptr. 350]), inadequate justification (Campbell, supra, 131 Cal.App.3d at p. 424),
the closeness in time of the retaliatory act to the protected activity (Santa Clara Unified School
District (1985) PERB Decision No. 500), inadequate investigation prior to the imposition of
discipline (State of California (Department of Parks and Recreation) (1983) PERB Decision
No. 328-S), and employer animosity towards union activists (Marin Community College
District (1980) PERB Decision No. 145).
Once protected activity is established to be a motivating factor, the burden shifts to the
employer to demonstrate that it would have taken the same action even in the absence of the
protected conduct. (Novato Unified School District, supra, PERB Decision No. 210; Martori
21 Since the language of the MMBA defining employee rights and the unfair practice of
discrimination is substantially similar to that found in the National Labor Relations Act
(NLRA) (29 U.S.C., sec. 141 et seq.) and the other statutes administered by the PERB, it is
proper to rely on cases construing the other acts in analyzing these terms. 	(Fire Fighters v.
City of Vallejo (1974) 12 Cal.3d 608 [116 Cal.Rptr. 507].) 	In addition to the MMBA, PERB
administers the Educational Employment Relations Act (Gov. Code, sec. 3540 et seq.), Ralph
C. Dills Act (Gov. Code, sec. 3512 et seq.), and the Higher Education Employee-Employer
Relations Act (Gov. Code, sec. 3560 et seq.).
34

Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 730 [175
Cal.Rptr. 626].)
I find that Dr. Gran engaged in protected activities and that the County, specifically,
Speed, who made the decision to recommend Dr. Gran's termination, was aware of those
activities. Dr. Gran led the organizational campaign leading to the certification of UAPD as
the exclusive representative of the County's physicians in August 2001. Thereafter he
continued to engage in protected activities by prosecuting three PERB unfair practice charges
and participating on the UAPD bargaining team. Speed knew of these activities as well.
As to the disputed issues in the case, UAPD contends that a prima facie case is
supported by several indicia of unlawful animus. Dr. Gran received disparate treatment in the
manner in which he was investigated for alleged disciplinary problems because Speed took the
unusual step of hiring a private investigator and because the two patient care referrals to the
MEC were suspect. Speed then recommended Dr. Gran's termination to the board of
supervisors before he received the investigator's report. 	Speed did not provide Dr. Gran
an explanation for his termination at the time he was notified and despite attempts thereafter to
obtain that information through UAPD. The justification Speed offered at the hearing was
shifting and contradictory because he relied on complaints by other physicians, despite the
MEC's restoration of medical privileges following the second referral. Then he spoke of poor
judgment in dealing with others and Dr. Gran's fomenting of dissension among staff. In
addition, UAPD relies on the pattern of animosity toward Dr. Gran which began after he
became active in its organizing campaign. Assuming a prima facie case, UAPD contends that
the County has failed to carry its burden of demonstrating that it would have terminated
his protected activities, citing the MEC's clearance of Dr. Gran as to the
35

allegations of substandard care and the County's reliance on a series of trivial second-hand
complaints against Dr. Gran. UAPD notes that many of these complaints involve hearsay and
multiple hearsay, and many were never investigated.
The County contends that Speed had legitimate business reasons for recommending
Dr. Gran's termination to the board of supervisors, and that his contract would have been
terminated regardless of his involvement in protected activities. Speed relied principally on
recommendations from Dr. Gran's peers, including Dr. Stanley, who as the department chair
had completely lost confidence in him, as well as the MEC's concerns over the inadequacy of
his patient work-ups and diagnoses, responses to pages, charting of patient files, supervision of
residents, and questionable demeanor toward patients and staff. These concerns had arisen
before, and Dr. Gran had proven himself to be incorrigible with respect to rectifying these
matters. In addition, Speed found Dr. Gran to be dishonest.
I agree with UAPD's contention that the manner in which the complaints against
Dr. Gran were processed suggests unlawful animus. In my previous decision I found that
Dr. Lee's July 2001 referral of his complaint about Dr. Gran's clinical practices as they related
to check-outs and charting was irregular because of the timing of the referral in relation to
Dr. Gran's organizing activity, Dr. Adams's threatening statement that Dr. Gran "has to go,"
the confrontational manner in which the cases were presented to Dr. Gran, and other factors.
This has to be tempered somewhat, however, by further illumination of those events 	this
case. Specifically, to my mind it appears that Dr. Lee's more likely motivation to retaliate
related to Dr. Gran's attempt to challenge his election to the position of chair rather than his
UAPD activity. Also, Dr. Lee had raised concerns about Dr. Gran's check-outs with
Dr. Adams the previous year, before any UAPD activity. Regardless of whether Dr. Gran's
36

activity in regard to challenging Dr. Lee's chair position may be considered protected under
the MMBA as individual employee activity in the nature of grievance adjustment, it appears
now that the manner in which Dr. Gran undertook that activity involved disingenuous tactics
(lying about, or at least exaggerating, his lack of participation in the recruitment of Dr. Tran as
a way to justify his nomination). 	(See Trustees of Boston University v. NLRB (1977) 548 F.2d
391 [94 LRRM 2500] [discussing rule balancing employer's right to discipline an employee
for offensive conduct in dealing with other employees during the course of protected activity].)
Nevertheless, it can be inferred that Dr. Lee was closely associated with Dr. Adams, and
Dr. Adams, despite his protestations of neutrality, does appear to have been closely allied with
management.
In this case, however, the focus is on Speed and his motivations, not Dr. Lee's. 	The
timing of Speed's order placing Dr. Gran on administrative leave (raised in Case No.
SA-CE-6-M), in the midst of the voting period for the representation election is suspicious.
(See County of San Joaquin (Health Care Services) (2001) PERB Order No. IR-55-M.)
Further, although not discussed in my previous decision, some unlawful animus on Speed's
part is evidenced by his issuance of the two warning letters for Dr. Gran's discussion of union
matters at the work site, particularly the close timing of them in relation to his prosecution of
the unfair practice charges. Nothing was presented in the prior case to show that Speed
interviewed 	Gran for his side. (Trustees of the California State University (1990) PERB
Decision No. 805-H [inadequate investigation].) Nevertheless, additional evidence taken in
this case mitigates that showing somewhat because of the repeated complaints by staff
members that Dr. Gran imposed himself on others inappropriately. Granted, the demarcation
time and non-work time for purposes ofregulating organizational activities is
37

less clear in the hospital setting with physicians, who typically do not have clearly defined
breaks. But it now appears that Speed did have some basis to doubt Dr. Gran's ability to self-
police his organizing activities. By way of example, I note the subsequent complaint that
Dr. Gran spoke to Dr. Maki repeatedly during the day and attempted to educate him about his
actions with the County.
Speed's employment of the independent investigator is also questionable, not due to his
hiring of one, but because he made his decision to terminate Dr. Gran before he received the
report. 	Speed testified that he decided upon an outside investigator because he did not want to
be perceived as being biased in light of the County's ongoing litigation with Dr. Gran. This I
find to be at least plausible on the surface, and so I reject UAPD's claim that its unprecedented
nature suggests animus. 	Speed had been personally named in some of the previous unfair
practice charges. Nor do I find the timing of this decision suspect. The County had received
two patient complaints about Dr. Gran's lack of professionalism in the fall of 2001, and
Dr. Bishop credibly testified that he had begun receiving a number of informal complaints
from staff about Dr. Gran's inappropriate behavior. The administration was aware of
complaints dating back to the July 2000 counseling memorandum, and the October 2001 MEC
plan of correction action included concerns about sexual harassment on Dr. Gran's part. 	Still,
Speed decided to recommend Dr. Gran's tem1ination before receiving the investigator's report
no explanation for the timing of his decision in light of that obvious question.
Dr. Gran was never contacted by the investigator for his side of the matter.
I do not find the second MEC referral based on the patient with the retained placenta to
be irregular, notwithstanding the fact that the only other MEC referral in recent times not
involving Dr. Gran was one in which a patient died. In this case, the patient nearly died,
38

multiple blood transfusions were required, and the MEC had already been alerted to problems
with Dr. Gran's check-out procedures. Dr. Stanley had had a good relationship with Dr. Gran
prior to the events in early 2002 and testified for him in the prior case.
The failure of Speed to offer a justification for his decision to terminate Dr. Gran is
another indicia of unlawful animus I find present in this case. (Novato Unified School District,
supra, PERB Decision No. 210.) Also, I believe Speed lost his temper when Dr. Gran refused
to meet with him on May 15, 2002 without union representation, because he ordered Dr. Gran
to gather his belongings and leave the premises immediately, despite the fact that the notice of
termination was prospective for 90 days. 22 My observations of Speed's demeanor in both cases
corroborates this inference. I conclude that Dr. Gran's refusal to even meet with him was
largely the reason why Speed refused to explain his reasons for terminating Dr. Gran. At the
same time, I note that Dr. Gran's contract of employment with the County, like those of other
physicians, is an at-will contract which can be terminated upon 90-days notice. The language
of the contract obviates any claim that just cause is needed for termination. Though it is
possible that Speed may have been advised that no reasons were required to exercise the right
of non-renewal, no rebuttal was offered by the County on this point.
I also agree with UAPD's contention that Speed exhibited unlawful animus when he
testified that Dr. Gran's lying was a factor in his decision, citing specifically Dr. Gran's
m 	pnor 	hearing regarding the statements Dr. Gran attributed to Drs.
Dominguez, Pucelik and Shrivastava at the informal meeting just prior to the October 2001
22 A discrepancy I am unable to reconcile is the fact that the notice of termination states
that Dr. Gran retains his hospital privileges, but Dr. Stanley testified that she terminated those
privileges pending a review by the MEC, which was not completed until July.
39

MEC meeting that resulted in the plan of corrective action.23 This admission by Speed, as well
as his treatment of Dr. Gran when delivering the notice of termination, reflect either his lack of
understanding about the rights of employees to engage in protected activity or animosity
toward those rights, and to some extent probably both.
Based on the foregoing, I find that UAPD has demonstrated a prima facie case that
unlawful animus was a factor motivating the County's decision to terminate Dr. Gran.
The County's justification for the termination begins with Dr. Stanley's opinion that
Dr. Gran was a liability to the OB/GYN department. At first blush, Dr. Stanley's testimony
appears problematic. In the prior hearing, she testified that Dr. Gran was a competent
physician, and she repeated that to Dr. Gran during the 90-day monitoring period. In this case,
she testified in the most emphatic terms possible, that she could no longer work with Dr. Gran.
She testified that she would not refer a loved one to Dr. Gran and that by the time she had
made her referral to the MEC in April, she refused to accept patients from Dr. Gran because of
his lax check-out procedures. In contrast, Dr. Ross testified that Dr. Gran's check-outs were
adequate and that because all of the OB/GYN physicians are part of a team it is not possible to
refuse to accept patients as a result of a change in the rotation.
What does distinguish Dr. Ross's opinion and Dr. Stanley's prior opinion from her
current one is that Dr. Stanley is now the department chair. As chair, she is responsible for
fielding and responding to complaints from other physicians. During her term as chair, she
became aware of a number of complaints about Dr. Gran's lack of diligence in treating
23 I credited some but not all of Dr. Gran's testimony regarding that meeting, as against
the testimony of all three of the physicians. After the current hearing, I am less convinced of
Dr. Gran's credibility as a witness. I made no specific finding in the prior case as to
Dr. Gran's claim that others told him he could lose his house if he was not compliant before
the MEC, the statement specifically cited by Speed at the hearing in this case.
40

patients. As to the case involving the patient with the retained placenta, I attribute the
problems to a lack of attentiveness by Dr. Gran. Dr. Gran relied on the fact that the delivery
itself was being handled by Long, whom he described as a "very competent" midwife. 	I note
because Long complained in tears to Dr. Bishop that Dr. Gran was intimidating staff and
poisoning morale within the department. Dr. Stanley was no doubt aware of these concerns as
chair.
In the prior case, Dr. Gran made a point, with which I was somewhat sympathetic, that
physicians on the 24-hour rotation rely greatly on the midwives and residents to assist with
deliveries in what is an extremely busy environment. Nevertheless, there is one physician who
has supervisorial responsibility for the entire staff during the rotation. Ultimate accountability
rests with that physician. Dr. Stanley had observed on her own that Dr. Gran was apt to be
seen sitting in his chair, that is, that he was not constantly making the rounds. While chair, she
personally inherited a patient who had not been seen by Dr. Gran during his rotation despite
having been admitted for 12 hours. Dr. Stanley confronted Dr. Gran with this issue and he
offered no explanation for not having seen the patient. Dr. Gran's problems with inadequate
check-outs and failing to see patients had been noted earlier and were documented. Then, too,
there were the corroborating complaints from the director of Family Practice that on two
occasions that Dr. Gran failed to respond promptly to pages for assistance by residents. Thus,
Dr. Stanley simply had much more evidence including first-hand knowledge on which to base
her change of opinion.
The fact that the MEC restored Dr. Gran's hospital privileges in July 2002 does not, in
my opinion, vindicate Dr. Gran's claim of competence as against that of Dr. Stanley. One of
specific conditions of restoring privileges was a response from Dr. Gran as to how he
41

would improve patient work-ups, avoid excessive reliance on staff to alert him to patient care
issues, and better supervise interns. Dr. Bishop explained that the OB/GYN staff is a team that
requires cooperation for the delivery of competent care.
As chair, Dr. Stanley was also made aware of the two patient complaints during the 90-
day monitoring period that Dr. Gran had made crude and offensive remarks during
examinations. This would constitute another reason why Dr. Stanley would not want to refer a
loved one to Dr. Gran. It relates to a matter that goes not strictly to medical competence, but is
no less important. As evidenced by the "hugs and kisses" sign-off, Dr. Stanley had personal
experience with Dr. Gran's predilection for making comments of a sexual nature that were
positioned right at the border of offensiveness. Especially given that the "hugs and kisses"
comment came within weeks of her counseling of Dr. Gran on the patient she inherited from
his shift, Dr. Stanley had reason to question Dr. Gran's motives in making that statement.
The "hugs and kisses" comment is also highly significant in terms of the pattern of
complaints of Dr. Gran's indiscretions when discussing sexual matters with patients and staff.
If there is any position where sensitivity in this area is paramount it is one in the OB/GYN
department of a public, hospital-of-last-resort.
While I had occasion as a result of my participation in both of the PERB cases to
question Dr. Stanley's objectivity because I suspect that Dr. Stanley may have a tendency to
to situations, especially those of a controversial nature, and because her two
opinions were so drastically different, if she were being arbitrary in rejecting Dr. Gran, I have
little reason to conclude that she formed that opinion on the basis of anti-union animus. 	(See
Moreland Elementary School District (1982) PERB Decision No. 227 ["lack of 'just cause' is
42

... not synonymous with anti-union animus"].) Dr. Stanley did, after all, testify for Dr. Gran
in the first hearing.
The "hugs and kisses" comment is also one constituting part of a pattern of Dr. Gran's
interactions which Dr. Bishop aptly described as "polarizing." This pattern became much
more pronounced in the last few months prior to Dr. Gran's notice of termination. The
"Popeye the Sailor" whistle in the presence of Dr. Krueger, the Dr. Shrivastava, Al Qaeda
reference, and the intrusions into Dr. Dominguez's department, were all directed at individuals
whom Dr. Gran had apparently come to identify as being against him in his effort to defend
himself against alleged retaliation by the Hospital. Similar behavior was reported in the
complaints by Barenchi, a person whom Dr. Gran viewed as biased toward the administration,
and the incidents where Dr. Gran placed blame on the administration with regard to Dr. Tran's
recruitment and welcoming dinner.
The campaign literature and some of the petitions suggest that the County was failing to
address the vital concerns of staff and that some staff felt intimidated by management
the organizational campaign. And I believe union organizers deserve latitude with respect to
their subjective views of management during an organizing campaign. But, apart from the
litigation surrounding Dr. Gran, there is little evidence that the UAPD campaign was unusually
vitriolic. Moreover, Dr. Gran's "we-they" attitude predates the UAPD campaign, and there is
evidence that Dr. Gran used this as a tactic at times to advance his personal political agenda.
An example of this was Dr. Gran's attempt to influence Dr. Felber not to run for president of
the medical staff. 	Though seemingly bound up with protected activity, I agree with the
County that such conduct is unprofessional, divisive and corrosive on morale. Dr. Kapre noted
staff constitutes a small community of physicians relative to other facilities.
43

Speed based his decision on Dr. Stanley's input, relayed through Dr. Bishop, the
MEC's no-confidence vote, as reflected in Dr. Felber's April 26, 2002 letter, and his opinion
that Dr. Gran was not a "good employee," used poor judgment, especially as it related to
patient interactions, spread falsehoods and created dissension within the staff. 	The spreading
of falsehoods and creation of dissension was well-documented, notwithstanding UAPD's
claims that the matters were trivial. They are not trivial considered in their totality. I am
unable to find that the allegations of Dr. Gran's poor attitude and his union participation were
in the County's view synonymous. (Cf. NLRB v. Florida Medical Center, Inc. (5 th Cir. 1978)
576 F.2d 666 [98 LRRM 3144].)
I hasten to add that the matters that do concern me are Speed's heavy reliance on
Dr. Felber's letter, his citing Dr. Gran's prior testimony before PERB as an example of
Dr. Gran's lying, and his dispensing with the results of the investigator. I was not particularly
impressed by the quality of Dr. Felber's testimony in either of the two hearings, in part because
· 	demeanor. 	I sensed he was not fully objective in dealing with the issues surrounding
Dr. Gran. The contents of Dr. Felber's letter reflect irritation with Dr. Gran's internal appeal
of the notice of corrective action and his prosecution of the previous unfair practice charge,
actions which I construe to be protected activity. I also note the somewhat exaggerated tone of
his expression of concern in the letter, as found, for example, in his description of the potential
for significant County financial liability for Dr. Gran's "unprofessional conduct," and his own
threat to resign. On the other hand, Dr. Gran's attempt to undermine Dr. Felber's nomination
as president of the medical staff, which I construe to be unprotected conduct, seems the more
likely answer to my concerns about Dr. Felber's objectivity than anti-union animus.
s 	to alienate his colleagues is well established in this record. Because there
44

were so many sources
of
complaints against Dr. Gran, I do not give great weight to the
reservations I have cited. 24
Based on the content and quality
of
Speed's testimony, his demeanor, and his prior
actions vis-a' -vis Dr. Gran, I infer that he liked to make decisions decisively, without a lot
of
hand-wringing. I take this as an indication not so much
of
arbitrariness as it relates to union
activity but as corroboration that he read Dr. Felber' s letter simply as a vote
of
no-confidence
by
Dr. Gran's peers. I rely on the same analysis in explaining his dispensing with the
investigator's report. Based on the timing
of
Speed's decision, it appears that Dr. Felber's
letter, on the heels
of
the report from Dr. Stanley, triggered Speed's decision to forego the
report
of
the investigator. The reservations I have noted about Speed's motivations are isolated
when viewed in the totality. As I have found, anti-union animus played some role in the
decision, but I also find that Speed had sufficient grounds otherwise to non-renew Dr. Gran's
contract. In this regard, I do not penalize Speed for failing to testify more expansively
or
persuasively in explaining the reasons he terminated Dr. Gran. Furthermore, the fact that the
County has maintained physicians on renewing, at-will contracts suggests that it does so in
order to have a lower threshold triggering termination.
Finally, I reject UAPD's contention that Speed's justification was inconsistent or
contradictory. There was great consistency as to the types
of
complaints lodged against
Dr. Gran. 	Similarly, I dismiss UAPD's contention that the County's reliance on hearsay, and
24 I noted in my previous decision a concern that Dr. Gran might have been too
dismissive
of
the peer review process, engaging in a form
of
passive-aggressive behavior that
was possibly unprotected, but justified, under the circumstances. Here, the County presented
evidence that 	Gran had not accepted constructive criticism even before his protected
activities. And while fresh complaints arose regarding his unprofessional conduct with patients
involving sexual harassment after the first MEC referral, he continued to deny the problem and
procrastinate in obtaining counseling.
45

multiple hearsay claims
of
unprofessional conduct
by
Dr. Gran, some
of
which were not
investigated, establishes evidence
of
unlawful animus. I find it sufficient that the nature
of
the
complaints was highly consistent over a long period
of
time. The individual complaints were
corroborative
of
the truth
of
Dr. Gran's alleged deficiencies. And their sheer number was
unmatched, according to Dr. Bishop. Though not specifically noted above, I do not find
Dr. Gran's explanations
of
these incidents to be credible because he was vague and evasive on
most occasions. Ultimately, the issue is not whether the events underlying these complaints
occurred as the complainants alleged, but whether the County's motive to terminate Dr. Gran
was based on his union activity. I conclude on the basis
of
this record that, despite evidence
of
unlawful animus, Dr. Gran would have been terminated regardless
of
his union activity.
In sum, I find that the County did not retaliate or discriminate against Dr. Gran in
violation
of
MMBA section 3506 and PERB Regulation 32603(a). Accordingly, I also find
that the County did not violate UAPD's rights under MMBA section 3503 and PERB
Regulation 32603(a). Therefore, the underlying charge and complaint must be dismissed.
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. SA-CE-64-M, Union
of
American Physicians & Dentists v. County
of
San Joaquin (Health Care Services), are hereby
DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service
of
this
Board's address is:
46

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
(5
p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered
to
a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit.
8,
secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close
of
business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements
of
California Code
of
Regulations, title 8,
section 32135(d), provided the filing party also places the original, together with the required
number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b ),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof
of
service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Administrative Law Judge
47