County of Santa Clara (PERB 2120M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA COUNTY REGISTERED
NURSES PROFESSIONAL ASSOCIATION,
Charging Party,
V.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-229-M
PERB Decision No. 2120-M
June 25, 2010
Appearances: 	Wylie, McBride, Platten & Renner by Mark S. Renner, Attorney, for Santa
Clara County Registered Nurses Professional Association; Renne, Sloan, Holtzman & Sakai by
Jeffrey Sloan, Attorney, for County of Santa Clara.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeals by both the County of Santa Clara (County) and the Santa Clara
County Registered Nurses Professional Association (RNP A) of a proposed decision by an
administrative law judge (ALJ). In the underlying charge, the RNP A alleged the County
violated the Meyers-Milias-Brown Act (MMBA) 1 by placing two charter amendments on the
November 2004 ballot without meeting its duty to meet and confer in good faith. RNP A
alleged this conduct violated MMBA sections 3505, 3509(b) and PERB Regulation 32603(c)2.
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise noted,
all statutory references are to the Government Code.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 3 1001 et seq.

This case begins with a ballot initiative (hereinafter referred to as the BIA Initiative)
sponsored by RNP A and two other labor organizations. The BIA Initiative proposed to amend
the Santa Clara County Charter (County Charter) to require the County and the initiative's
union sponsors to submit disputes regarding wages, hours and other terms and conditions of
employment to binding interest arbitration. In response to the BIA Initiative, the County
placed two proposed charter amendments on the November 2004 ballot. One of the County's
ballot measures (hereinafter referred to as the Interest Arbitration Measure) proposed the
addition of Section 715 to the County Charter which would have modified the interest
arbitration set forth in the BIA Initiative. The other ballot measure (hereinafter referred to as
the Prevailing Wage Measure) proposed an amendment to Section 709 of the County Charter
which would have changed the calculation of prevailing wages used in the determination of
rates of pay for County employees.
The ALJ found that both ballot measures were within the scope of representation and,
therefore, the County had a duty to meet and confer with RNP A prior to placing them on the
ballot. The ALJ further found that the County failed to fulfill its bargaining obligation before
placing the measures on the ballot. Accordingly, the ALJ concluded that the County breached
its duty to bargain in good faith.
Both the County and RNP A appealed the proposed decision. On appeal, the County
argued the ballot measures were not within the scope of representation and, therefore, it had no
duty to meet and confer with RNP A prior to placing the measures on the ballot. Additionally,
even if the measures were within scope, the County argued it fulfilled its bargaining obligation
prior to placing the measures on the ballot. RNP A, on the other hand, argued it should have
2

received an award for the out-of-pocket losses it suffered that flowed directly from the
County's violations.
We have reviewed the entire record and find the Interest Arbitration Measure was not a
mandatory subject of bargaining. Accordingly, the County did not breach its duty to bargain in
good faith when it placed this measure on the ballot. On the other hand, we find the Prevailing
Wage Measure was within the scope of representation and that the County improperly placed
the measure on the ballot prior to the completion of bargaining. Accordingly, we find the
County breached its duty to bargain in good faith when it unilaterally placed the Prevailing
Wage Measure on the ballot. With regard to the remedy for this violation, we find an award
for out-of-pocket losses is not appropriate based on the facts of this case.
FINDINGS OF FACT
The County is a public agency within the meaning of MMBA section 3501(c) and
PERB Regulation 32016(a). RNPA is an employee organization within the meaning of
MMBA section 3501(a), a recognized employee organization within the meaning of MMBA
section 3501 (b ), and an exclusive representative within the meaning of PERB
Regulation 320 l 6(b) for a bargaining unit of nurses.
With their memorandum of understanding (MOU) set to expire in August 2003, the
parties began negotiations for a successor MOU in May 2003. 	Still without a contract in early
2004, RNP A, together with the Government Attorneys Association and the Correctional Peace
Officers' Association circulated a petition to place an initiative on the November 2004 ballot.
The BIA Initiative was entitled, "Initiative For Compulsory Binding Arbitration In Labor
Disputes Between County and Employee Organizations Representing Certain County
Registered Nurses, Certain County Attorneys, and County Correctional Officers." The BIA
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Initiative sought to amend the County Charter to require the County and specified unions to
submit disputes regarding wages, hours and other terms and conditions of employment to
binding interest arbitration. A notice of intent to circulate the petition was filed on April 2,
2004.
In response to the BIA Initiative, County Human Resources Director Luke Leung
(Leung) sent a letter to RNP A President Rosemary Knox (Knox) on May 21, 2004 stating:
This serves as notice that the Board of Supervisors plans to
submit to the voters in the fall certain charter amendments
affecting County employees.
To the extent that the proposed charter amendments, if adopted
by the voters, potentially have an impact on your bargaining unit,
we wish to afford you an opportunity to meet and confer with
County representatives. It is our desire to complete and conclude
any meet and confer in the next two months so as to meet the
timeline for placement of the measures on the November ballot.
The conclusion of the letter indicated that the County would contact RNP A to determine
whether it wanted to "meet and confer with the County over these amendments."
One of the measures, the Interest Arbitration Measure, proposed to add Section 715 to
the County Charter if the BIA Initiative passed. Two separate versions of that section were
under consideration by the County. One alternative sent an interest arbitration award to the
voters if the award resulted in "greater cost" to the County than its last offer. The other
permitted the County to reject an arbitration award if it determined the award would
substantially interfere with the County's ability to manage its financial affairs.
The other County Charter amendment, the Prevailing Wage Measure, proposed to
amend Section 709 which provided that "[r]ates of pay shall be fixed by the Board of
Supervisors which are commensurate with those prevailing throughout the county for
comparable work." The amendment proposed to change four aspects of Section 709:
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(1) 	Only public sector salaries would be used to calculate the prevailing wage,
private sector salaries would be excluded;
(2) 	"Wages" would be defined to include all employer paid costs;
(3) 	The terms "comparable" and "commensurate" would be defined to mean
substantially similar or substantially in conformity with; and
(4) 	In calculating the prevailing wage, those employees paid a base wage of
$100,000 would be conclusively presumed to earn the prevailing wage.
This presumption would be in addition to the existing one for rates of pay
contained in a collective bargaining agreement with recognized employee
organizations.
Although Leung did not believe the County's proposed charter changes required
bargaining, he assigned employer representatives to negotiate the changes with the sponsoring
unions. With regard to the RNP A negotiations, Leung assigned Priscilla Hood (Hood) and
Louis Chiaramonte (Chiaramonte) to represent the County. Leung directed the representatives
to insist that the charter proposals be handled separately from ongoing MOU negotiations so
that they could be placed on the November 2004 ballot with the BIA Initiative.
Hood has been a principal labor relations representative for the County since 2001 and
was the County's chief spokesperson for the discussions with RNP A regarding the proposed
charter amendments. A week after Leung sent the May 21, 2004, notice to the unions, Hood
called RNP A to arrange meetings. She was told that RNP A would prepare a schedule. 	The
first meeting was scheduled for June 24, 2004, the first day that the RNPA attorney,
Christopher E. Platten (Platten) was available.
According to Hood, the County representatives were instructed to meet and confer with
RNPA to the extent they could prior to an August deadline for placing the County initiatives
on the November ballot. Chiaramonte told RNP A representatives that he could be available
anytime.
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Hood testified that she believed she had the authority to negotiate and make
counterproposals at the meetings. However, the County took the position that it was not
necessary to use the County charter impasse procedures (mediation) because they were only
required for MOU negotiations.
Among attendees at the June 24, 2004 meeting were Platten and Knox for RNPA and
Hood and Chiaramonte for the County. The meeting lasted less than an hour. Platten made
requests for information and was assured of a County response. He stated that the union would
be unable to produce a counterproposal until the requested information was provided and
requested that it not be produced in a piecemeal fashion. 	Hood provided some of the
information at the meeting and directed RNP A to the County website.
The parties next met on July 6, 2004, with Chiaramonte and Labor Relations
Representative William Ganley (Ganley) representing the County. Platten's information
request was discussed; Ganley stated he would respond in writing.
Hood was present for a meeting on July 13, 2004, that lasted less than an hour. 	There
was some discussion regarding court cases involving interest arbitration. RNP A reiterated that
it would not submit a counterproposal until the information requested had been provided. No
additional proposals were exchanged.
A fourth meeting took place on July 20, 2004. It lasted an hour and a half. Hood was
presented with a written information request of 45 items that concluded with a statement that
all items had been requested a month earlier with little result. The parties reviewed the
request. By letter on the same day, Platten sent three additional information requests to Hood.
On July 27, 2004, Hood sent a letter to Platten responding to each of the 48 information
requests. 	She reminded Platten that RNP A was provided notice of the County's ballot
6

measures on May 21, 2004 and was clearly afforded an opportunity to meet and confer over
the potential impact of these measures. In addition, Hood claimed that RNP A engaged in
delay tactics by its delay in setting meetings and its lengthy information request. She also
stated that while County representatives had no obligation to use the current charter impasse
resolution procedures, they would agree to mediation if completed by August 3, 2004.
At some point, Platten informed the County that RNP A would not submit a
counterproposal on the Interest Arbitration Measure until it was told which of the County's
two alternatives had been selected. According to Hood, that decision was delayed by meetings
with other unions.
The parties met on July 28, 30 and August 2, 2004. Hood did not attend but received
reports from County representatives.
On July 28, 2004, Chiaramonte informed RNP A that the County had eliminated the
$100,000 presumption from its original charter proposal on the Prevailing Wage Measure. At
one point in her testimony, Hood referred to this change as "minor." Later, in response to a
leading question, she testified that it was "significant." The change resulted from RNPA input
Additionally, Chiaramonte informed RNP A that the County had determined to proceed with
the version of the Interest Arbitration Measure that required voter approval of an interest
arbitration award only if it was more expensive than the County's final offer.
At the July 30, 2004 and August 2, 2004 meetings, RNP A made counterproposals to
both of the County's ballot measures. They were rejected by County representatives, and no
changes were made to either measure.
7

On August 2, 2004, RNPA demanded mediation under the County's Employee
Management Relations Ordinance, but the County refused. County representatives presented
what they believed to be the final draft of the charter amendments to RNP A.
On August 3, 2004, prior to their meeting, the County Board of Supervisors received a
letter from Platten urging them to comply with the "meet and confer" requirements of MMBA
before placing their final language on the ballot. Platten contended that the County had not
exhausted its bargaining obligation, and had not participated in required impasse procedures.
However, the County's proposed charter amendments were approved by the Board of
Supervisors on August 3, 2004. Hood testified that the final versions contained language that
was not identical to the prior version given to RNP A.
The union-supported BIA Initiative and both of the County measures were rejected by
the voters in the November 2004, election.
ISSUE
Did the County violate its duty to bargain when it submitted proposed charter
amendments to Sections 709 and 715 of the County Charter for the November 2004 ballot?
DISCUSSION
MMBA section 3505 requires public agencies to meet and confer in good faith with
employee organizations regarding matters with the scope of representation. In determining
whether a party has violated MMBA section 3505 and PERB Regulation 32603(c), PERB
utilizes either the "per se" or "totality of the conduct" test, depending on the specific conduct
8

involved and the effect of such conduct on the negotiating process. (Stockton Unified School
District (1980) PERB Decision No. 143.)3
Unilateral changes are considered "per se" violations if certain criteria are met. 	Those
criteria are: 	(1) the employer breached or altered the parties' written agreement or its own
established past practice; (2) such action was taken without giving the other party notice or an
opportunity to bargain over the change; (3) the change was not merely an isolated breach of the
contract, but amounts to a change in policy (i.e., it has a generalized effect or continuing
impact upon bargaining unit members' terms and conditions of employment); and (4) the
change in policy concerns a matter within the scope ofrepresentation. (Vernon Fire Fighters
v. City of Vernon (1980) 107 Cal.App.3d 802; Walnut Valley Unified School District (1981)
PERB Decision No. 160; San Joaquin County Employees Assn. v. City of Stockton (1984) 161
Cal.App.3d 813; Grant Joint Union High School District (1982) PERB Decision No. 196.)
The rule is applicable when a party seeks to change a matter within the scope of
representation through the initiative process. Prior to placing the matter before the voters, the
party seeking the change must first satisfy its obligation to bargain. (People ex rel. Seal Beach
Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591.) Thus, the first issue to be
addressed in this case is whether the County's ballot measures were within the scope of
representation. If not, the County did not have a duty to meet and confer prior to submitting
the measures for the November 2004 ballot.
3 When 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.)
9

A. 	The Interest Arbitration Measure Was Not Within Scope
As indicated above, the Interest Arbitration Measure proposed the addition of
Section 715 to the County Charter if the BIA Initiative passed. This measure would have
amended the interest arbitration procedures contained in the BIA Initiative by requiring an
interest arbitration award to be approved by the voters if the award resulted in "greater cost" to
the County than its last offer.
The ALJ found this provision to be within scope. However, while this matter was
pending before the Board, a lawsuit was filed against the County alleging the County
improperly spent public funds for partisan electoral purposes when it bargained for the union's
non-support of the BIA Initiative. On January 22, 2010, the Sixth District Court of Appeal
issued its decision in DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236
(DiQuisto), dismissing the lawsuit. Relevant to this discussion, the court held that interest
arbitration provisions in general, and the BIA Initiative in particular, are permissive subjects of
bargaining. (Ibid.)
In the instant case, the County sought to ameliorate the harsh consequences of the BIA
Initiative with the addition of Section 715 to the County Charter. Section 715, as proposed,
would have become part of the binding interest arbitration procedure proposed by the BIA
Initiative. Based on DiQuisto, we find the Interest Arbitration Measure was a permissive
subject of bargaining. As such, the County did not have an obligation to provide RNP A with
notice and an opportunity to bargain prior to placing it on the ballot. Accordingly, we find the
County did not breach its duty to bargain when it placed the Interest Arbitration Measure on
the November 2004 ballot.

B. 	The Prevailing Wage Measure
1. 	The Prevailing Wage Measure was Within Scope
In its appeal, the County reiterates its position that City of Fresno v. People ex rel.
Fresno Firefighters (1999) 71 Cal.App.4th 82 (Fresno) compels a finding that the Prevailing
Wage Measure was not within scope. In Fresno, the court considered whether the City of
Fresno (City) had a duty to meet and confer prior to repealing a City charter provision that
required a survey of eight other jurisdictions to set a minimum salary for police and
firefighters. 	The court found that because the charter provision merely determined the City's
initial bargaining position, and did not set wages, it was not a mandatory subject of bargaining.
(Ibid.) The court compared the City's charter provision at issue from prevailing wage charter
sections that "purport to set wages" and concluded that the unions "had no stake under the
MMBA in determining ... an opening bargaining position to be assumed by the City's labor
negotiators." (Ibid., at p. 96.)
In Fresno, the relevant portion of the City's charter at issue provided as follows:
salaries of the members of the police and fire departments of the
city shall be fixed annually at an amount not less than the average
monthly salaries .... [Underlining in original; emphasis added.]
We find the "not less than" language is a key component of this provision. As noted by the
court in Fresno, this language clearly established an initial bargaining position for the City. It
did not, however, establish a maximum rate of pay nor did it set the wages for the employees
in question.
The Prevailing Wage Measure, however, did not include the "not less than" or similar
language. Instead, the measure provided:
Rates of pay for county employees shall be fixed by the Board of
Supervisors and shall be commensurate with rates of pay that are
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prevailing throughout the county for comparable public sector
employees.
Absent the "not less than" language, we find that this provision did not establish an initial
bargaining position. Instead, it established the wages of the employees in question based on
the prevailing wages throughout the County. Because this provision purports to set wages, we
find the Prevailing Wage Measure is within the scope of representation. Accordingly, the
County had a duty to satisfy its obligation to bargain over the Prevailing Wage Measure prior
to placing it on the ballot.
Thus, the remaining question in this case is whether the County breached its duty to
bargain and that determination must be made by application of the unilateral change test.
Because we have determined that the Prevailing Wage Measure was within the scope of
representation, the fourth element of the test is satisfied. The first three elements of the
unilateral change test are addressed below.
2. 	The Prevailing Wage Measure Constituted an Alteration in the Parties' Written
Agreement or its Own Established Past Practice
The first element in the unilateral change test is whether the respondent breached or
altered the parties' written agreement or its own established past practice. The County argues
that its proposed changes to Section 709 sought only to clarify the existing prevailing wage
provision and, therefore, did not trigger an obligation to bargain. However, these changes
sought, among other things, to limit the salaries that would be considered in determining the
prevailing wage and also to redefine what constituted "wages." We find these changes go
beyond mere clarification and constitute substantive changes to Section 709. Accordingly, we
find the first element of the unilateral change analysis is satisfied.
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3. 	The County Failed to Complete Bargaining Over the Prevailing Wage Measure
The second element in a unilateral change test is whether the respondent's action was
taken without giving the other party notice or an opportunity to bargain over the change. 	The
Board has held that the obligation to meet and negotiate in good faith is one that must be
fulfilled before implementing changes to matters within the scope of representation. (Calexico
Unified School District (1983) PERB Decision No. 357 (Calexico).) Indeed, MMBA
section 3505 provides, in relevant part:
'Meet and confer in good faith' means that a public agency, or
such representatives as it may designate, and representatives of
recognized employee organizations, shall have the mutual
obligation personally to meet and confer promptly upon request
by either party and continue for a reasonable period of time in
order to exchange freely information, opinions, and proposals,
and to endeavor to reach agreement on matters within the scope
of representation prior to the adoption by the public agency of its
final budget for the ensuing year. The process should include
adequate time for the resolution of impasses where specific
procedures for such resolution are contained in local rule,
regulation, or ordinance, or when such procedures are utilized by
mutual consent. 	[Emphasis added.]
Thus, absent a waiver by the exclusive representative, an employer violates its duty to
meet and confer in good faith when it makes a unilateral change to a matter within scope prior
to the completion of bargaining. (Omnitrans (2009) PERB Decision No. 2001-M.) This duty
is satisfied if the parties either reach agreement or bargain to impasse and participate in any
applicable impasse procedures.
In the instant case, the County met with RNP A on seven separate occasions to bargain
both the Prevailing Wage Measure and the Interest Arbitration Measure but failed to reach
agreement on either measure. However, rather than declaring impasse, or continuing to
13

bargain, the County choose to put the Prevailing Wage Measure on the November 2004 ballot.
Accordingly, we find the second element of the unilateral change analysis is satisfied.
4. 	The Prevailing Wage Measure Constituted a Change of Policy
The third element of a unilateral change test is whether the change was not merely an
isolated breach of the contract, but amounted to a change in policy (i.e., it has a generalized
effect or continuing impact upon bargaining unit members' terms and conditions of
employment). In this case, the Prevailing Wage Measure would have changed the calculation
of prevailing wages used in the determination of rates of pay for County employees. Clearly,
such a change would have an ongoing and generalized effect on the terms and conditions of
employment. Under these circumstances, we find the Prevailing Wage Measure constituted a
change in policy. Accordingly, the third element of the unilateral change test is satisfied.
Because all four elements of the test have been met, we find the County breached its
duty to meet and confer in good faith when it failed to bargain the Prevailing Wage Measure to
agreement or impasse prior to placing it on the ballot, unless that obligation was waived by
RNP A or was otherwise excused.
a. 	RNPA's Conduct did not Excuse the County from Completing
Negotiations
The County argues that RNP A demonstrated bad faith by its lack of interest, dilatory
tactics, insisting on irrelevant information requests and refusing to comment on the measures
until the County responded to all the information requests; and, by this conduct, RNPA waived
its right to bargain. The Board, however, has held that a waiver of bargaining rights will not
be found absent clear and unmistakable language or demonstrative behavior waiving a
reasonable opportunity to bargain over a decision not already firmly made by the employer.
(Sutter Union High School District (1981) PERB Decision No. 175.) Moreover, any doubts
14

regarding waiver must be resolved against the party asserting it. (Placentia Unified School
District (1986) PERB Decision No. 595.)
Here, the parties held seven meet and confer sessions, and there is little evidence that
these sessions suffered from a lack of interest by RNP A. Moreover, there is insufficient
evidence to establish either that RNP A engaged in delay tactics or that more meetings would
have resulted in actual bargaining. Accordingly, we find the County failed to establish waiver
in this case.
Additionally, the Board has held that "self-help" during negotiations regarding matters
within scope is unlawful. (Palo Verde Unified School District (1987) PERB Decision No. 642
(Palo Verde).) Instead, when a party believes its counterpart is not conducting its negotiations
in good faith, the party may file an unfair practice charge. (Ibid.) 	In the instant case, the
County claims RNPA did not bargain over the County's ballot measures in good faith, yet the
County did not file an unfair practice charge against RNP A. Instead, the County resorted to
self-help by unilaterally placing the Prevailing Wage Measure on the ballot. Based on
Palo Verde, we find RNPA's alleged misconduct at the table did not excuse the County's
obligation to bargain in this case.
b. 	The County was not Excused from Bargaining Based on a Statutory
Deadline for Submitting Initiatives for the Ballot
The County also argues that it was "privileged to act" because it was confronted with a
statutory deadline for submitting its initiatives for the November 2004 ballot. The County cites
Compton Community College District (1989) PERB Decision No. 720 (Compton) for the rule
that an employer may implement a change prior to completion of bargaining where there exists
an imminent need for the employer to act. In that case, the employer was free to initiate
layoffs based on an immutable deadline, as long as it had bargained in good faith prior to
15

implementation and continued to negotiate after implementation. With regard to effects of
layoff, the Board found that continued bargaining could be of some value to the union and the
affected employees.
Here, the Prevailing Wage Measure, unlike the Interest Arbitration Measure, was not
directly related to the BIA Initiative. Therefore, it does not appear that the County was faced
with an imminent need to act prior to the statutory deadline for submitting the measure for the
ballot. Additionally, continued negotiations after enactment of the Prevailing Wage Measure
would be of little or no value. Accordingly, we find the County was not privileged under
Compton to place the Prevailing Wage Measure on the ballot prior to the completion of
bargaining.
c. 	The County was not Excused from Bargaining Based on a Business
Necessity
At times, a compelling operational necessity can justify an employer acting unilaterally
before completing its bargaining obligation. (Calexico.) However, the employer must
demonstrate "an actual financial emergency which leaves no real alternative to the action taken
and allows no time for meaningful negotiations before taking action." ( Oakland Unified
School District (1994) PERB Decision No. 1045.)
In support of its claim for immediate action, the County claimed it "could not wait for a
future election cycle, because by that time potentially incalculable damage could have been
done, both to the financial resources of the County and to the County's labor relations
program." The County presents no facts and little argument to support this bare assertion. The
Board of Supervisors did not declare an emergency or make a statement of serious harm
threatened. Rather, according to Leung, the County acted because it wanted its provisions on
the same ballot as that of the union-sponsored measure.
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As indicated above, it does not appear that the County was faced with an imminent
need to act prior to the statutory deadline for submitting the Prevailing Wage Measure for the
ballot. The mere fact that the County thought the inclusion of the measure on the November
2004 ballot was desirable does not constitute a compelling operational necessity sufficient to
set aside its bargaining obligation.
Based on the foregoing, we find the County failed to satisfy its bargaining obligation
when it placed the Prevailing Wage Measure on the ballot. Accordingly, we conclude the
second element of the unilateral change test is satisfied.
CONCLUSION
We find the Interest Arbitration Measure was not a mandatory subject of bargaining
and, therefore, RNP A failed to establish all four elements of a unilateral change claim.
Accordingly, we find the County did not breach its duty to bargain when it placed this measure
on the ballot. On the other hand, we find the Prevailing Wage Measure was a mandatory
subject of bargaining, and we find RNP A established all four elements of a unilateral change
claim for this measure. Accordingly, we find the County committed an unlawful unilateral
change when it placed the Prevailing Wage Measure on the ballot prior to the completion of
bargaining.
REMEDY
PERB is authorized to remedy violations of the MMBA. In relevant part,
Section 3509(b) states:
The initial determination as to whether the charge of unfair
practice is justified and, if so, the appropriate remedy necessary
to effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board.
17

Where a violation is found in unilateral change cases, PERB has the authority and long
standing practice of ordering a restoration of the status quo ante for unilateral change
violations. (County of Sacramento (2008) PERB Decision No. 1943-M.) This is typically
accomplished by requiring the employer to rescind the unilateral change and make employees
whole for losses suffered as a result of the unlawful unilateral change. (Desert Sands Unified
School District (2004) PERB Decision No. 1682.) The monetary losses compensable are "out-
of-pocket losses." (Temple City Unified School District (1990) PERB Decision No. 841.)
In its appeal, RNP A claims that the ALJ erred when he failed to award "out-of-pocket
losses suffered by RNP A that flowed directly from the County's violations." While it is true
that out-of-pocket expenses are compensable, such costs are only recoverable if they are a
direct consequence of the violation. In the present case, RNP A failed to establish that its
political expenditures were necessary to defeat the County's ballot measures. Instead, the
record shows that RNP A was engaged in a political campaign, and its resources were
voluntarily spent on achieving political victory. Accordingly, we find RNP A's alleged losses
too remote to warrant recovery in this case.
It is also noteworthy that the record contains no evidence that either RNP A or its
members suffered any out-of-pocket expenses or other type of harm in connection with the
County's ballot measures. Indeed, both measures failed and, therefore, an order to return to the
status quo is not necessary. Consequently, an award for out-of-pocket losses is not
appropriate.
We, therefore, find the appropriate remedy in this case is an order for the County to
cease and desist from its unlawful conduct. It is also appropriate to order the County to post a
notice incorporating the terms of the order. Posting of such a notice, signed by an authorized
18

agent of the County, will provide employees with a notice that the County has acted in an
unlawful manner, is being required to cease and desist from this activity, and will comply with
the order. It effectuates the purposes of the MMBA that employees be informed of the
resolution of this controversy and of the County's readiness to comply with the order.
(Placerville Union School District (1978) PERB Decision No. 69.)
ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this matter, the Public Employment Relations Board (Board) hereby dismisses the allegation
that the County of Santa Clara (County) unlawfully placed the Interest Arbitration Measure on
the November 2004 ballot. Further, the Board finds the County violated the Meyers-Milias-
Brown Act (MMBA), Government Code section 3505 et seq., when it placed the Prevailing
Wage Measure on the ballot prior to the completion of bargaining.
Pursuant to section 3509(b) of the MMBA, it hereby is ORDERED that the County, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
Submitting charter amendment initiatives regarding prevailing wages for
placement on an election ballot without fulfilling its duty to bargain in good faith.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
1. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations where notices to employees in the bargaining unit
represented by the Santa Clara County Registered Nurses Professional Association (RNP A)
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the County, indicating that it will comply with the terms of
19

this Order. Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material.
2. 	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. Respondent 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 the RNP A.
Chair Dowdin Calvillo and Member Wesley joined in this Decision.
20

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-229-M, Santa Clara County
Registered Nurses Professional Association v. County of Santa Clara, in which all parties had
the right to participate, it has been found that the County of Santa Clara violated the Meyers-
Milias-Brown Act, Government Code section 3505 et seq., by unilaterally submitting a charter
amendment initiative regarding prevailing wages for placement on an election ballot without
fulfilling its duty to bargain in good faith.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
Submitting charter amendment initiatives regarding prevailing wages for
placement on an election ballot without fulfilling the duty to bargain in good faith.
Dated: 	COUNTY OF SANTA CLARA
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, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.