Sutter County In-Home Supportive Services Public Authority (PERB 1900M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
HEALTH CARE WORKERS UNION LOCAL
250,
Charging Party,
v.
SUTTER COUNTY IN-HOME SUPPORTIVE
SERVICES PUBLIC AUTHORITY,
Respondent.
Case No. SA-CE-211-M
PERB Decision No. 	1900-M
A p r i l 	2 5 , 	2007
Appearances: 	Weinberg, Roger & Rosenfeld by Bruce A. Harland, Attorney, for Health Care
Workers Union Local 250; Office of the County Counsel by Robert A. Muller, Attorney, for
Sutter County In-Home Supportive Services Public Authority.
Before Duncan, Chairman; Shek and Neuwald, Members.
DECISION
SHEK, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Sutter County In-Home Supportive Services
Public Authority (IHSS) to a decision by an administrative law judge (ALJ). In the proposed
decision, the ALJ found that IHSS's decision to implement the Criminal Background Check
Policy and Procedure (background check, or policy) was outside the scope of bargaining, but
that IHSS's refusal to negotiate the effects of its policy constituted a violation of the Meyers-
Milias-Brown Act (MMBA),1 sections 3503, 3505, 3506 and PERB Regulation 32603(a), (b)
MMBA is codified at Government Code section 3500, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

and (c).2 The ALJ thereupon ordered IHSS to suspend implementation of its criminal
background check policy until its effects had been negotiated.
The Board has reviewed the entire record in this matter, including but not limited to the
ALJ's proposed decision, IHSS's statement of exceptions and supporting brief, and the
response of the Health Care Workers Union Local 250 (Local 250). As discussed in the
decision below, the Board agrees that the decision to implement background checks was
outside the scope of bargaining, based upon the managerial prerogative. Additionally, we find
that the details of the policy that are primarily related to public safety, and to the quality and
nature of public services, as discussed below, are outside the scope of bargaining based upon
the managerial prerogative. 	The Board finds, however, that the effects that are primarily
related to wages, hours, and terms and conditions of employment, as delineated below, are
within the scope of bargaining.
PROCEDURAL HISTORY
This action was commenced on January 30, 2004, when Local 250 filed an unfair
practice charge, alleging that IHSS made an unlawful unilateral change. The Office of the
General Counsel of the Board followed on June 3, 2004, by issuing a complaint against IHSS.
The complaint alleged that IHSS failed to meet and confer prior to implementing the policy,
requiring a criminal background check and fingerprinting for in-home supportive services
providers who elected to be included in a registry for referral to care recipients, in violation of
MMBA sections 3503, 3505 and 3506 and PERB Regulation 32603(a), (b) and (c). The matter
was not settled at the conclusion of an informal conference on June 22, 2004. 	The parties
submitted a joint stipulation of facts and exhibits in lieu of a hearing on
PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
22

November 24, 2004. Following the filing of briefs, the matter was submitted for decision on
January 24, 2005. The ALJ issued the proposed decision on May 11, 2005.
FINDINGS OF FACTS
Local 250 is an exclusively recognized representative, within the meaning of PERB
Regulation 32016(b), of an appropriate unit which includes some in-home supportive service
providers in Sutter County. 	IHSS is a public agency within the meaning of Government Code
section 3501(c) and PERB Regulation 32016(a). IHSS is statutorily deemed to be the
employer of all in-home supportive services personnel in Sutter County, including those who
are members of Local 250, for the purpose of negotiating wages, benefits, and other terms and
conditions of employment. (Welf. & Inst. Code sec. 12301.6(c)(l).) At all times in question,
IHSS and Local 250 had been negotiating over other wages, terms, and conditions of
employment for all IHSS providers, but had not reached a Memorandum of Understanding.
The Criminal Background Check Policy and Procedure
State law authorizes each county to establish an authority to provide in-home
supportive services3 to aged, blind, or disabled persons. (Welf. & Inst. Code secs. 12300,
3Section 12300(b) defines "supportive services" as follows:
Supportive services shall include domestic services and
services related to domestic services, heavy cleaning,
personal care services, accompaniment by a provider
when needed during necessary travel to health-related
appointments or to alternative resource sites, yard hazard
abatement, protective supervision, teaching and
demonstration directed at reducing the need for other
supportive services, and paramedical services which make
it possible for the recipient to establish and maintain an
independent living arrangement.
Additionally, Section 12300(c) and (d) state that the following "personal care services"
shall be allowed where services are provided in the recipient's home.
33

12301.6.) IHSS is such an authority. The law requires an authority created under this section
to establish a registry of providers, and to investigate the "qualifications and background of
potential personnel." (Id, sec. 12301.6(e)(l)(2).4) The statute does not delineate the scope of
-
the background investigation.
By a separate state law, any recipient of services from an in-home supportive services
provider is entitled to receive from the Department of Justice (DOJ) a copy of the criminal
record of the provider to determine whether the provider has been convicted or incarcerated
within the last ten years as a result of specified criminal convictions. (Welf. & Inst. Code sec.
15660.) The law requires counties to notify any recipient of, or applicant for in-home
supportive services, that a criminal record check on the providers is available and can be
performed by the DOJ, upon his or her "annual redetermination," substitution of providers, or
application for in-home supportive services.
On December 9, 2003, IHSS implemented its policy, which apparently combines
Welfare & Institutions Code sections 12301.6(e) and 15660, by mandating a criminal
(1) Assistance with ambulation.
(2) Bathing, oral hygiene, and grooming.
(3) Dressing.
(4) Care and assistance with prosthetic devices.
(5) Bowel, bladder, and menstrual care.
(6) Repositioning, skin care, range of motion exercises, and
transfers.
(7) Feeding and assurance of adequate fluid intake.
(8) Respiration.
(9) Assistance with self-administration of medications.
4As provided in Section 12301.6(e), the six functions of the IHSS are to: (1) establish a
registry of providers and (2) investigate the qualifications and background of potential
personnel, (3) establish a system for referral of providers to recipients, (4) provide training for
providers and recipients, (5) perform "any other functions related to the delivery of in-home
supportive services, and (6) ensure that the requirements of the personal care option of
Subchapter 19 (commencing with Section 1396) of chapter 7 of Title 42 of the United States
Code are met.
44

background check for all providers who elect to be included in the Section 12301.6(e)(l)
registry. 	As described in the joint stipulation of facts,
The Policy applies to elective 'registry applicants.' 	It requires
those who opt to join the registry to submit to a criminal
background check through the Department of Justice as a
condition for listing on the registry. Under the Policy, those
registry applicants who fail the criminal background check would
not be included in the registry, but have the right to appeal.
Providers may elect not to join the registry and recipients of care
may hire or fire providers who are not members of the registry.
IHSS did not have a criminal background check policy and procedure affecting in-home
supportive services providers before December 9, 2003.
The policy stated that in-home supportive services providers who have been convicted
of any of the following violations at any time, including pleas of no contest, would be excluded
from the registry:
A. 	Sexual offense against a minor.
B. 	Violation of sexual battery; willfully harm or injury to child,
endangering person or health; cruel or inhuman corporal
punishment or injury resulting in a traumatic condition of a child;
infliction of pain or mental suffering or endangering health of
elder or dependent adults; theft or embezzlement of property.
C. 	Offenses that include drug violations.
D. 	Offenses against property, including but not limited to, theft,
robbery, burglary, embezzlement, or extortion.
E. 	Offenses where inclusion or continued participation in the
Registry would, in the judgment of the Public Authority, subject
an IHSS consumer to risk of harm, or otherwise undermine the
functioning of the Registry. A criminal conviction per se will not
be an absolute bar to the Registry. The Public Authority will
consider such things as number of convictions, the nature and
gravity of the convictions, the recentness of the convictions,
evidence of rehabilitation, and the relationship between any
specific criminal conviction and the sensitive, personal, and
confidential relationship of providers and the special vulnerability
of consumers to possible harm. 	The Public Authority shall
determine on a case-by-case basis whether any applicant's
5

convictions render the applicant unsuitable for inclusion to [sic]
the Registry.
(Policy, Penal Code references omitted.)
The lists of offenses in the IHSS policy and Welfare & Institutions Code section 15660 are
partially duplicative, but not identical.
The parties stipulated that IHSS adopted the policy without prior notice to Local 250
and without having afforded Local 250 an opportunity to meet and confer over the decision to
implement the policy or the effects of the policy.
DISCUSSION
The issues in the present case are whether IHSS made an unlawful unilateral change by
adopting the criminal background check policy without meeting and conferring with Local
250, and whether the implementation of the policy was within the managerial prerogative and
thus outside the scope of bargaining under the MMBA.
IHSS argues in its exceptions that there was no change in past practice, and thus no
unilateral change, because, contrary to the ALJ's statement,5 there had been no elective
registry prior to the establishment of the background check. IHSS further argues that the
effects of the decision, as well as the decision itself, should be exempt from bargaining as a
management prerogative.
Local 250 responds to IHSS's exceptions by contending that the ALJ properly found
that there was a change in past practice, and that the effects of the background check were
within the scope of representation.
In reviewing exceptions to an ALJ's proposed decision, the Board reviews the entire
administrative record as well as the parties' appellate papers. PERB reviews the record de
5IHSS alleges in its exceptions that it adopted the registry and the background check
policy simultaneously, and that the ALJ's finding that the registry existed prior to the
implementation of the policy was in error.
66

novo, and is free to draw its own conclusions from the record apart from those made by the
ALJ. (Woodland Joint Unified School District (1990) PERB Decision No. 808a; Santa Clara
Unified School District (1979) PERB Decision No. 104.) The Board ordinarily gives
deference to an ALJ's factual findings, which incorporate credibility determinations based on
considerations such as witness demeanor and appearance. 	(Beverly Hills Unified School
District (1990) PERB Decision No. 789.)
In determining whether a party has violated Government Code section 3505 and PERB
Regulation 32603(c) by making a unilateral change, PERB utilizes either the "per se" or
"totality of the conduct" test, depending upon the specific conduct involved and the effect of
such conduct on the negotiating process. 	(Stockton Unified School District (1980) PERB
Decision No. 143.) Unilateral changes are considered "per se" violations if certain criteria are
met. Those criteria are: 	(1) the employer implemented a change in policy concerning a matter
within the scope of representation, and (2) the change was implemented before the employer
notified the exclusive representative and gave it an opportunity to request negotiations.6
(Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802 [165 Cal.Rptr. 908];
Walnut Valley Unified School District (1981) PERB Decision No. 160; San Joaquin County
Employees Association v. City of Stockton (1984) 161 Cal.App.3d 813 [207 Cal.Rptr. 876];
Grant Joint Union High School District (1982) PERB Decision No. 196.)
The stipulated record established that the employer's action amounted to a change in
policy that had a continuing impact on the terms and conditions of employment, and a breach
of an established past practice of not having a background check. 	IHSS's exception arguing
that there was no change in past practice because there had been no elective registry prior to
In this case, the parties stipulated that IHSS implemented the policy without giving
Local 250 a prior opportunity to negotiate.
77

the establishment of the background check is without merit. 	Even given the lack of a
preexisting registry, IHSS's creation of such a registry and its unilateral implementation of the
background check would constitute a change in past practice. 	IHSS further argues that the
policy has no generalized effect or continuing impact upon existing terms and conditions of
bargaining unit members, because it is an elective registry. The Board finds that it is irrelevant
whether the registry applies to all providers or only to registry applicants, because both would
use the registry as the means of obtaining future clients. 	IHSS's adoption of the background
check therefore constituted a unilateral change of its past practice.
The ALJ, however, found that the decisio
- n to adopt the policy was within the
managerial prerogative, and hence not negotiable. Neither party excepted to this conclusion.
IHSS also excepts to the ALJ's finding that the effects of the policy are subject to
bargaining. 	Local 250 had argued that the following issues, which might arise upon
implementation of the background check, should be subject to bargaining:
1. 	How will information on a person's criminal record, if
any, be handled? Will it be made public? Will it be provided
directly to the prospective homecare client? What measures does
the employer propose to appropriately protect the confidentiality
of such information and workers' good reputation in the
community? If it is to be provided to clients, will the clients be
bound in any way by whatever confidentiality standards the
Public Authority as an agency plans to impose on itself?
2. 	To whom will the requirement apply? Will bargaining
unit members who have been employed for more than 20 years
with exemplary work records be terminated or grand fathered in?
3. Will IHSS workers be required to pay a fee out of their
own pockets for the background checks? If so, what does the
employer propose the fee will be? What happens in cases in
which this fee reduces a provider's pay below minimum wage?
4. 	What will be a worker's appeal rights if s/he believes they
have been incorrectly identified as having been convicted of a
given crime?
88

5. 	What will be a worker's appeal rights if s/he seeks to
present extenuating circumstances which should influence the
employer's decision to exclude them from the registry or from
employment?
6. 	What categories of offenses are reportable? What
categories of offenses result in automatic exclusion from the
registry/employment? The PA's7 policy proposes answers to this
question, but, for example, those answers include overly broad
language such as 'offenses that include drug violations,' and
'Offenses where inclusion or continued participation in the
registry would, in the judgment of the PA, subject an IHSS
consumer to risk of harm, or otherwise undermine the functioning
of the Registry.'
The ALJ found that these issues had "little or nothing to do with public safety," and held that
these "effects" were subject to bargaining. The ALJ stated,
All of these queries concern matters within the terms and
conditions of employment and do not impinge on IHSS'
legitimate concerns over public safety. 	Therefore, they do not
'include consideration of the merits, necessity, or organization of
any service or activity provided by law or executive order,' as
this term is used in section 3504.
Upon review, however, the Board finds that the following four issues from Local 250's
list fall within the managerial prerogative: 	(1) the categories of reportable offenses; (2) the
categories of offenses that will result in exclusion from the registry; (3) to whom the
background checks will apply; and (4) disclosure of the providers' disqualification for and/or
exclusion from the registry to care recipients. These items are integral to the policy. As
discussed below, they fall within the managerial prerogative and are outside the scope of
bargaining.
The managerial prerogative is based upon MMBA section 3504, which defines the
scope of representation to include the following:
7"PA" stands for Public Authority.
99

all matters relating to employment conditions and employer-
employee relations, including, but not limited to, wages, hours,
and other terms and conditions of employment, except, however,
that the scope of representation shall not include consideration
of the 'merits, necessity, or organization of any service or
activity provided by law or executive order.'
(Emphasis added.)
In determining whether the criminal background check policy was within the scope of
bargaining under the MMBA, we apply the balancing test stated in the California Supreme
Court decision in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623
[47 Cal.Rptr.3d 69] (Claremont). In that decision, the Court set forth the following test to
determine whether a management action and its effects are within the scope of bargaining:
In summary, we apply a three-part inquiry. First, we ask whether
the management action has 'a significant and adverse effect on
the wages, hours, or working conditions of the bargaining-unit
employees.' 	[Building Material & Construction Teamsters'
Union v. Farrell (1986) 41 Cal.3d 651, 660 [224 Cal.Rptr. 688]
(Building Material).)] 	If not, there is no duty to meet and confer.
(See sec. 3504; see also ante , at p. 632.) Second, we ask whether
the significant and adverse effect arises from the implementation
of a fundamental managerial or policy decision. If not, then, as in
8The court in Holliday v. City of Modesto (1991) 229 Cal.App.3d 528 [280 Cal.Rptr.
206] (Holliday) discussed the management prerogative as follows:
In Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608
[116 Cal.Rptr. 507, 526 P.2d 971], the Supreme Court attempted
to 'reconcil[e] the two vague, seemingly overlapping phrases of
the statute: "wages, hours and working conditions," which,
broadly read could encompass practically any conceivable
bargaining proposal; and "merits, necessity or organization of any
service" which, expansively interpreted, could swallow the whole
provision for collective negotiation and relegate determination of
all labor issues to the city's discretion.' 	(Id, at p. 615.) The
-
Supreme Court observed that 'the Legislature included the
limiting language not to restrict bargaining on matters directly
affecting employees' legitimate interests in wages, hours and
working conditions but rather to forestall any expansion of the
language of "wages, hours and working conditions" to include
more general managerial policy decisions.' 	( I d , at p. 616.)
-(Holliday. at p. 535.)
10

Building Material, the meet-and-confer requirement applies.
(Building Material, supra. 41 Cal.3d at p. 664.) Third, if both
factors are present—if an action taken to implement a fundamental
managerial or policy decision has a significant and adverse effect
on the wages, hours, or working conditions of the employees—we
apply a balancing test. The action 'is within the scope of
representation only if the employer's need for unencumbered
decisionmaking in managing its operations is outweighed by the
benefit to employer-employee relations of bargaining about the
action in question.' (Building Material, supra. 41 Cal.3d at p.
660.) In balancing the interests to determine whether parties must
meet and confer over a certain matter (§ 3505), a court may also
consider whether the 'transactional cost of the bargaining process
outweighs its value.' 	[(Social Services Union v. Board of
Supervisors. 82 Cal. App. 3d 498, 505 [147 Cal.Rptr. 126].)]
(Claremont, supra, at p. 638.)
The Court in Claremont upheld the concept of effects bargaining; i.e., even if an employer's
decision to make a change is within the managerial prerogative, the effects of that decision
may be subject to bargaining if they are not also within the managerial prerogative. 	(Id, at pp.
633-35.)
Under the first prong of the Claremont test, the Board finds that the background check
has a significant and adverse impact on the terms and conditions of employment, based upon
evidence in the record that in-home supportive service providers use the registry as the means
of obtaining future clients.
Additionally, under the second prong of the Claremont test, the record undisputedly
shows, and we therefore find that the significant and adverse effect arises from the
implementation of a fundamental managerial or policy decision. 	Fundamental managerial
decisions are those that "directly affect the quality and nature of public services." (Building
Material, supra, at p. 664.) On the other hand, decisions that primarily affect wages, hours,
- -
and other terms and conditions of employment would be subject to bargaining. 	In this case,
the decision to implement the background check, and the four policy details cited above,
directly affect the quality and nature of public services.
11

Under the third prong of the Claremont test, to determine whether the details and
effects of the policy are within the scope of bargaining, we must weigh the employer's need for
unencumbered decisionmaking in managing its operations against the benefit to employer-
employee relations of bargaining about the action in question.
In this case, the public services provided by IHSS have an important public safety
component. 	Welfare & Institutions Code section 12301.6(e) expressly authorizes IHSS to
investigate the qualifications and background of providers. 	Additionally, in Welfare &
Institutions Code section 15670, the Legislature expressed the intent to protect the vulnerable
population of in-home supportive services recipients.9
Courts have held that matters relating to public safety are within the managerial
prerogative. 	In San Jose Peace Officer's Assn, v. City of San Jose (1978) 78 Cal.App.3d 935
[144 Cal.Rptr. 638], the court held that a regulation governing the circumstances under which a
police officer would be permitted to discharge a firearm fell within the managerial prerogative
because of its fundamental public safety purpose. 	Similarly, in Berkeley Police Assn. v. City
of Berkeley (1977) 76 Cal.App.3d 931 [143 Cal.Rptr. 255], the Court of Appeal held that a
This section authorized the Department of Social Services to implement a system of
criminal background checks for in-home supportive services providers. (Welf. & Inst. Code
Sec. 15670(g).) According to the legislative findings and declarations in the statute,
"[i]nstances of elder and dependent adult abuse are on the rise, with the majority of the abuse
occurring in the home of elderly or dependent person by noncertified Caregivers." 	(Welf. &
Inst. Code Sec. 15670(a).) "This state has a responsibility to protect these persons and to see
that they are safeguarded from individuals who may pose a threat to their well-being." (Welf.
& Inst. Code Sec. 15670(b).) Additionally:
Criminal background checks of individuals who provide personal
care services to elder and dependent adults, while not ending all
occurrences of abuse, will serve as a factor in reducing some of
these occurrences and giving senior citizens, dependent adults,
and their families a sense of security that care is not being
administered by individuals with dangerous criminal
backgrounds.
(Welf. & Inst. Code sec. 15670(c).)
12

police review procedure implemented by the police chie10
f10was a matter of police-community
relations, and was thus a managerial policy decision outside of the scope of representation.
However, an overall public safety purpose will not exempt a management action from
bargaining where the evidence indicates that the action relates primarily to worker safety or
other terms or conditions of employment. In Holliday. at p. 538, the court held that a drug
testing requirement for firefighters was subject to bargaining because it related primarily to
worker safety or other terms or conditions of employment, and the record lacked evidence of a
public safety purpose.
IHSS argues that the details and effects of the decision should be exempt from
bargaining as a management prerogative because the policy is based upon the "critical" public
safety goal of protecting vulnerable members of society - elderly, disabled, and adults
dependent on in-home supportive personnel. We agree that the employer has a strong interest
in implementing the background checks in this case, to comply with state statutes and to
protect vulnerable recipients of in-home supportive services.
In response, Local 250 argues that the details and effects of the decision to implement
the background check had little to do with public safety, and were more related to conditions of
employment. 	We also agree that the providers have a strong interest in avoiding wrongful
denial of placement on the registry, and in maintaining the confidentiality of their
backgrounds.
In balancing the employer's and employees' interests with regard to criminal
background checks, two federal decisions are instructive. In Exxon Company USA (1996) 321
ToThe procedure allowed: (1) a member of a citizens' police review commission to sit
in at department hearings regarding citizens' complaints against officers, and (2) a department
representative to attend commission meetings to present the department's position and to
provide information from department investigations.
13

NLRB 896 [153 LRRM 1017], the National Labor Relations Board (NLRB) addressed a case
in which the parties had bargained over background checks for employees who sought
placement in positions that were designated as critical for safety.11 The background checks in
that case were audits of employees' drug and alcohol use compliance statements, performed by
comparing such statements against local court records. The union in that case brought a charge
alleging that the employer failed to provide certain information relating to the background
checks, including the names of the employees whose records were audited. The NLRB
ordered the parties to conduct further bargaining over the background checks and information
disclosure, emphasizing the importance of bargaining over such matters.
Additionally, in United Food & Commercial Workers Int'l Union, Local 588 v. Foster
Poultry Farms (9th Cir. 1995) 74 F.3d 169 [151 LRRM 2607], the Ninth Circuit held that the
effects of a drug testing policy were bargainable despite the fact that the Department of
Transportation (DOT) mandated drug testing for commercial motor vehicle operators. 	The
court upheld an arbitrator's award requiring the defendant to reinstate two discharged
employees (drivers) and to bargain over such matters as discipline, reassignment, and
rehabilitation.12 Pursuant to the above authorities, the effects of background checks on wages,
hours, and terms and conditions of employment are undoubtedly subject to bargaining.
Based upon the discussion above, the Board finds that it is within IHSS's management
prerogative to determine the details of the policy that are primarily related to public safety, and
11When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608 [116
Cal.Rptr. 507].)
I2During rulemaking, the DOT had expressly stated that the effects of the mandatory
drug testing (including issues such as termination, reassignment, hiring of temporary drivers to
fill a position, or policies regarding a driver's absence) would be subject to collective
bargaining. (Id., at p. 175.)
14

the quality and nature of public services. 	The details that fall outside the scope of bargaining
are those that are essential to the policy itself, rather than effects on wages, hours, or terms and
conditions of employment. 	Such details include, but are not limited to, the following: (1) the
categories of reportable offenses, (2) the categories of offenses that will result in exclusion
from the registry, (3) to whom the background checks will apply, and (4) disclosure of the
providers' disqualification for and/or exclusion from the registry to care recipients. Under the
Claremont balancing test, the employer's need for unencumbered decisionmaking in managing
its operations in these matters outweighs the benefit to employer-employee relations of
bargaining. According to the provisions of the Welfare & Institutions Code cited earlier, it is
the IHSS's duty to screen in-home supportive services providers based upon their background
and qualifications. 	Recipients of in-home supportive services who obtain a referral from the
IHSS registry have a right to expect that registered providers do not have a criminal
background. 	It is within IHSS's managerial discretion to determine the types of past violations
that would be reportable, or that would preclude a provider from inclusion on the registry.
Similarly, it is within the employer's managerial discretion to determine to whom the
requirements apply. Finally, it is within the IHSS's discretion to determine the terms of
disclosure of a provider's disqualification for and/or exclusion from the registry to a care
recipient. These issues are outside the scope of bargaining because they relate directly to
ensuring the safety of care recipients.
In contrast, the Board finds that the effects of the policy on traditional terms and
conditions of employment, including but not limited to the following, are within the scope of
bargaining: 	how a person's criminal record will be handled, aside from the non-bargainable
issue of disclosure to care recipients (e.g., bargainable issues would include the extent of the
information related to the criminal background checks given to the care recipients, whether to
15

allow public disclosure, and what confidentiality requirements may be included); whether
applicants will be required to pay a fee; and the procedures for providers to appeal any
decisions excluding them from the registry (e.g., based upon considerations such as
meritorious past service, or errors in making the determination). While we hold that appeal
procedures should be bargainable, we hold that the ultimate decision as to whom to include in
the registry falls within the managerial prerogative. Under the balancing test, the benefits to
the employer-employee relationship of bargaining the matters discussed above outweigh the
employer's need for unencumbered decisionmaking.
We intend this decision to be construed narrowly. 	The negotiability of criminal
background check policies should depend upon the facts and circumstances of each situation.
The vulnerability of in-home supportive services recipients makes this an extraordinary case in
which we would apply the managerial prerogative to exclude certain details of the policy from
the scope of bargaining.
CONCLUSION
The Board holds that IHSS's adoption of the criminal background check policy
constituted a unilateral change of past practice. However, the Board holds that the decision to
adopt the policy, and certain details of the policy, as discussed above, are outside the scope of
bargaining based upon the managerial prerogative. 	The Board finds that IHSS's refusal to
negotiate the effects of its background check on wages, hours, and terms and conditions of
employment, as discussed above, denied Local 250 the right to represent the members of its
bargaining unit in their employment relationship with the employer, in violation of MMBA
sections 3503 and 3505, and PERB Regulation 32603(b). In addition, we find that IHSS
derivatively interfered with the rights of bargaining unit employees to be represented by an
16

employee organization of their choice, a violation of MMBA section 3506 and PERB
Regulation 32603(a).
ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, the Public Employment Relations Board (PERB) finds that the Sutter County In-
Home Supportive Services Public Authority (IHSS) violated the Meyers-Milias-Brown Act
(MMBA), Government Code sections 3503, 3505, and 3506, as well as PERB Regulation
32603(a), (b) and (c).
Pursuant to MMBA section 3509(a) and (b), it is hereby ORDERED that IHSS, and its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and confer in good faith with the Health Care Workers
Union Local 250 (Local 250) over the subject of the effects of IHSS's decision to require all of
its caregiver employees to submit to a criminal background check prior to inclusion in the
provider registry. 	The effects subject to bargaining include, but are not limited to, the
following: 	how a person's criminal record will be handled, aside from the non-bargainable
issue of disclosure to care recipients; whether applicants will be required to pay a fee; and the
procedures for workers to appeal any decisions excluding them from the registry. The
following issues are not subject to bargaining: 	(1) the categories of reportable offenses, (2) the
-
categories of offenses that will result in exclusion from the registry, (3) to whom the
background checks will apply, and (4) disclosure of the providers' disqualification for and/or
exclusion from the registry to care recipients.
2. 	Denying to Local 250 rights guaranteed to it by the MMBA.
17

3. 	Imposing or threatening to impose reprisals, discriminating or
threatening to discriminate against, or otherwise restraining or coercing in-home Caregivers,
because of their exercise of rights guaranteed by the MMBA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF THE MMBA:
1. 	Negotiate the effects of IHSS's background check policy with Local 250,
in accordance with paragraph A.1, above.
2. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all IHSS sites were notices are customarily placed for employees,
copies of the notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of IHHS, indicating that it will comply with the terms herein. 	Such posting
shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to insure that the Notice is not reduced in size, altered, defaced, or covered by any other
material.
3. Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. IHSS shall provide reports, in writing, as directed by the General Counsel
or his/her designee. All reports regarding compliance with this Order shall be concurrently
served on Local 250.
It is further Ordered that all other aspects of the charge and complaint are hereby
DISMISSED.
Chairman Duncan and Member Neuwald joined in this Decision.
18
.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
In Unfair Practice Case No. SA-CE-211-M, Health Care Workers Union Local 250 v.
Sutter County In-Home Supportive Services Public Authority, the Public Employment
Relations Board (PERB) has found that the Sutter County In-Home Supportive Services Public
Authority (IHSS) violated the Meyers-Milias-Brown Act (MMBA), Government Code sections
3503, 3505, and 3505, and PERB Regulation 32603(a), (b) and (c).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and confer in good faith with the Health Care Workers
Union Local 250 (Local 250) over the subject of the effects of IHSS's decision to require all of
IHSS's caregiver employees to submit to a criminal background check prior to inclusion in the
provider registry. 	The effects subject to bargaining include, but are not limited to, the
following: how a person's criminal record will be handled, aside from the non-bargainable
issue of disclosure to care recipients; whether applicants will be required to pay a fee; and the
procedures for workers to appeal any decisions excluding them from the registry. The
following issues are not subject to bargaining: 	(1) the categories of reportable offenses, (2) the
-categories of offenses that will result in exclusion from the registry, (3) to whom the
background checks will apply, and (4) disclosure of the providers' disqualification for and/or
exclusion from the registry to care recipients.
2. 	Denying to Local 250 rights guaranteed to it by the MMBA.
3. 	Imposing or threatening to impose reprisals, discriminating or
threatening to discriminate against, or otherwise restraining or coercing in-home Caregivers,
because of their exercise of rights guaranteed by the MMBA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Negotiate the effects of the background check policy with Local 250, in
accordance with paragraph A.1, above.
Dated: 	SUTTER COUNTY IN-HOME SUPPORTIVE
SERVICES PUBLIC AUTHORITY
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.