Alameda Health System (PERB 2856M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1021,
Charging Party,
v.
ALAMEDA HEALTH SYSTEM,
Respondent.
SABER ALAOUI,
Joined Party.
Case No. SF-CE-1793-M
PERB Decision No. 2856-M
March 23, 2023
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Katharine R.
McDonagh, Attorneys, for Service Employees International Union, Local 1021; Hanson
Bridgett by Gilbert J. Tsai, Winston K. Hu, and Matthew B. Seipel, Attorneys, for
Alameda Health System.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on Service Employees International Union, Local 1021’s
(SEIU or Union) exceptions to the proposed decision of an administrative law judge
(ALJ). The complaint, as amended, alleges that Alameda Health System (AHS)
violated the Meyers-Milias-Brown Act (MMBA)1 by various conduct, including releasing
1 The MMBA is codified at Government Code section 3500 et seq.
Undesignated statutory references are to the Government Code. PERB Regulations

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AHS employee Saber Alaoui from probation in retaliation for his protected activity, and
interfering with MMBA protected rights by releasing Alaoui from probation and by
sending several communications in April 2020.2 The allegedly interfering
communications included verbal comments by AHS Board of Trustees member Joe
DeVries at a public meeting on April 7, a written statement issued by AHS and posted
on Twitter by AHS Board of Trustees member Maria Hernandez on or about April 14
(April 14 statement), and a memorandum to employees issued by AHS Chief
Executive Officer (CEO) Delvecchio Finley on April 22 (April 22 memo). The proposed
decision dismissed the complaint and underlying unfair practice charge in its entirety.
SEIU filed timely exceptions, urging the Board to overturn the ALJ’s dismissal of each
interference allegation. AHS filed a timely response to SEIU’s exceptions, asking the
Board to affirm the proposed decision.3
After reviewing the entire record and the parties’ arguments in light of the law,
we affirm the ALJ’s factual findings and affirm in part and reverse in part the ALJ’s
are codified at California Code of Regulations, title 8, section 31001 et seq.
2 All further dates are in 2020, unless otherwise indicated.
3 No party excepted to the ALJ’s dismissal of the claim that Alaoui’s release
from probation was retaliatory. We therefore decline to address that allegation.
(County of Santa Clara (2018) PERB Decision No. 2613-M, p. 2, fn. 2; PERB
Reg. 32300, subd. (e).) Though SEIU’s exceptions sought to incorporate its post-
hearing briefing, “merely incorporating an earlier brief by reference is not sufficiently
specific to explain a party’s exceptions.” (City of San Ramon (2018) PERB Decision
No. 2571-M, p. 2, fn. 4; citing San Diego Community College District (1983) PERB
Decision No. 368, p. 13.) We accordingly express no opinion about whether the ALJ’s
ruling on retaliation was correct. However, as addressed further post, we accept as
final and binding on these parties the ALJ’s finding that AHS proved its defense that it
had a legitimate nondiscriminatory reason for releasing Alaoui from probation.

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legal conclusions. We find that, in context, DeVries’ statement during the April 7 public
meeting that “political theater is not acceptable” fell outside the safe harbor for
employer free speech and constituted unlawful interference under the MMBA. We
otherwise affirm the proposed decision, subject to the below discussion of SEIU’s
exceptions.
FACTUAL AND PROCEDURAL BACKGROUND4
The Parties and PERB’s Jurisdiction
AHS is a public agency within the meaning of MMBA section 3501,
subdivision (c). AHS is comprised of a series of hospitals and other healthcare
facilities in the Oakland, California area. Its largest location is Highland Hospital,
where the incidents at issue in this case take place. Prior to 1988, Alameda County
managed AHS facilities. At that time, AHS became a public health authority, and its
operations became governed by a Board of Trustees appointed by the County Board
of Supervisors. The AHS CEO oversees day-to-day operations. At the times relevant
to this case, Finley was the CEO.
SEIU is a recognized employee organization within the meaning of MMBA
on 3501, subdivision (b), and an exclusive representative within the meaning of
PERB Regulation 32016, subdivision (b). SEIU is the exclusive representative of
employees in three of AHS’s bargaining units, the Registered Nurse unit (RN Unit), a
general employees unit, and a unit for AHS’s San Leandro Hospital. This case
secti
4 No party excepted to the ALJ’s factual findings. The factual background is
largely drawn from the proposed decision, condensed and supplemented to include
the facts relevant to SEIU’s exceptions.

4
primarily involves the RN Unit. From April 2017 to March 31, 2020, SEIU and AHS
were parties to a Memorandum of Understanding governing terms and conditions of
employment for the RN Unit. SEIU and AHS were in successor negotiations at the
times relevant to this case. Before AHS released him from probation, Alaoui was a
public employee within the meaning of MMBA section 3501, subdivision (d), as a
Clinical Nurse II (CNII), which is in the RN bargaining unit.
During the time period relevant to this case, SEIU raised concerns about
employee safety to AHS management, its Board of Trustees, and the County Board of
Supervisors. Since the start of the COVID-19 pandemic, SEIU voiced particular
concerns about personal protective equipment (PPE) shortages. At the start of the
pandemic, AHS began locking its PPE supplies in areas accessible only to
supervisors.
SEIU also advocated for more County oversight over AHS. As SEIU AHS
Chapter President John Pearson explained, SEIU maintained that AHS’s appointed
Board of Trustees is less accountable to the public than the elected County Board of
Supervisors. SEIU further maintained that County oversight would improve AHS’s
financial situation. SEIU advocated for its goals through public demonstrations and
messaging in both traditional and social media. Pearson, on behalf of SEIU, was
featured in local print and television news outlets. Pearson also used social media
platforms including Facebook, Instagram, and Twitter to publicize union safety
concerns and other issues. SEIU additionally organized donation drives to collect
money and PPE supplies for area hospitals.

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Telemetry and Oncology Unit
Highland Hospital’s Telemetry and Oncology unit is sometimes referred to as
7-ACT because it is the only unit housed on the seventh floor of Highland’s Acute
Care Tower. Nursing in 7-ACT is generally split between two 12-hour shifts: a day shift
running from 7:00 a.m. to 7:00 p.m. of the same day, and a night shift running from
7:00 p.m. to 7:00 a.m. of the following morning. Other staff in the unit include Certified
Nursing Assistants (CNAs), who assist staff nurses with patient care, and
Environmental Services (EVS) employees, who perform custodial and disinfecting
work. The Telemetry and Oncology unit is overseen by a Nurse Manager, who at all
relevant times was Wosilat Busari. The unit also has an Assistant Nurse Manager,
who at all relevant times was Erik Abacan.
Each shift on the Telemetry and Oncology unit is supervised by a charge nurse,
who is a Clinical Nurse IV, and not in any bargaining unit represented by SEIU. The
unit did not have a regular night shift charge nurse and relied heavily on relief charge
nurses during the night shift between November 2019 and March 2020. Maria
Mendoza-Sanchez was a CNII who regularly served as a relief charge nurse in the
Telemetry and Oncology unit. On March 21, Mendoza-Sanchez was hired for the
full-time night shift charge nurse position.
The Garbage Bag Incidents
The on-duty charge nurse is responsible for managing access to the Telemetry
and Oncology unit’s PPE supplies. PPE supplies used in 7-ACT include N95 masks,
surgical masks, fluid-resistant gowns, gloves, face shields, and disinfecting wipes.
Fluid-resistant gowns are commonly called “isolation gowns” because they are part of

6
AHS’s contact isolation precautions, which are special protocols used when caring for
patients with dangerous and highly infectious conditions. Isolation protocols are
designed to reduce the patient’s contact with others. For example, a patient infected or
suspected to be infected with COVID-19 would require isolation precautions. Unlocked
carts with PPE supplies are stationed in the hallways at 7-ACT near patient rooms. If
the unit is caring for any isolation patients, isolation carts stocked with additional PPE
are stationed outside those patient rooms. Excess PPE supplies are locked in the
supervisors’ office which is only accessible by the charge nurses and management.
The charge nurse is responsible for replenishing PPE carts and for requesting
additional supplies from AHS’s Central Supply department.
1. 	The March 28-29 Night Shift
Maria Garcia-Valdivia was the charge nurse for the Saturday March 28 day
shift. That afternoon, Garcia-Valdivia went to the Central Supply department to
replenish PPE supplies for the Telemetry and Oncology unit before the night shift
began. The Central Supply clerk gave her 50 isolation gowns, rather than the typical
allotment of 100. Although the unit was not in short supply of isolation gowns at the
time, Garcia-Valdivia decided that that the unit should conserve the gowns in the
event of a possible surge of COVID-19 patients. Garcia-Valdivia did not inform Busari
or Abacan about her plan because they had just completed their regular work hours
and she did not want to disturb them.
Garcia-Valdivia conducted the huddle5 for the incoming night shift later that day.
5 Each shift in the Telemetry and Oncology unit begins with a meeting for all
nurses on the shift, colloquially called the “huddle.”

7
As the incoming charge nurse, Mendoza-Sanchez attended the huddle as well.
Garcia-Valdivia told staff nurses that isolation gowns would be saved for those caring
for COVID-19 patients and that nurses should wear cloth gowns when caring for other
isolation patients. It is unclear to what extent Garcia-Valdivia explained to nurses that
they could still request isolation gowns.
That shift, Alaoui was assigned a patient who was infected with a Multi-Drug
Resistant Organism (MDRO), and thus required isolation precautions. Alaoui was one
of multiple night shift nurses who expressed concern about the directive to use cloth
gowns for non-COVID-19 isolation patients.
Alaoui did not consider it safe to wear only a cloth gown when caring for the
MDRO patient. Alaoui, who had a young child and an immunocompromised family
member, was concerned about infecting his family with the MDRO. Rather than
wearing a cloth gown, Alaoui decided to take a large plastic garbage bag from EVS
staff, make holes for his arms and head, and wear the bag over his torso. Alaoui
believed that the plastic bag would offer more protection from sprayed fluids than a
cloth gown. He wore a garbage bag for the first time around 8:00 p.m., when visiting
the MDRO patient’s room. Alaoui did not inform Mendoza-Sanchez, Busari, or Abacan
of his plan to wear a garbage bag as PPE, but he also did not conceal what he was
doing, and he readily wore the garbage bag in front of others whenever he visited the
MDRO patient. He also photographed himself wearing the garbage bag. In one photo,
Alaoui’s arms and face can be seen, but most of his face is obscured by a protective
mask. Alaoui saw other staff members wearing garbage bags during the shift.
Mendoza-Sanchez saw him wearing the garbage bag and responded positively,

8
stating something to the effect of “good job, you found a solution to the problem.”
At some point, an SEIU employee representative approached Alaoui and asked
if he would share the picture of himself wearing a garbage bag. Alaoui agreed
because SEIU was advocating about PPE issues, and he thought that the Union might
assist with improving access to isolation gowns. SEIU representatives put a version of
Alaoui’s picture on Facebook, Instagram, and Twitter.
2. 	The March 29 Day Shift
Garcia-Valdivia was the charge nurse for the day shift again on March 29. CNII
Alexis Rivers was assigned to the MDRO patient. Before visiting that patient, Rivers
saw that the supply cart near the patient room was out of isolation gowns and asked
Garcia-Valdivia to replenish it. According to Rivers, Garcia-Valdivia said that isolation
gowns were being saved for COVID-19 patients and that she should wear a cloth
gown when entering the MDRO patient’s room.
Like Alaoui, Rivers believed that wearing a cloth gown was not safe for
preventing infections, so she requested some garbage bags from EVS staff. She
wore a garbage bag as PPE when visiting the MDRO patient’s room for the first part
of her shift. Rivers took pictures of herself wearing a garbage bag but did not share
them with anyone at AHS or SEIU.
Finley visited the Telemetry and Oncology unit during the March 29 day shift to
shadow an EVS employee and learn about their work. The EVS employee told Finley
that a nurse asked for a garbage bag to wear. Other 7-ACT staff also told Finley that
a nurse had worn a garbage bag due to the lack of accessible isolation gowns. Finley
had just received an update that AHS had adequate PPE supplies, so he did not

9
understand why the nurses could not access isolation gowns. Eventually, Rivers saw
Finley at the nurses’ station, and she told him that she had worn a garbage bag as
PPE. She explained to him how Garcia-Valdivia instructed her to wear cloth gowns in
the MDRO patient room, which Rivers considered to be unsafe. She also told Finley
that she photographed herself wearing the garbage bag, but she did not show it to
him. Finley discussed the matter with Garcia-Valdivia, who confirmed that she told
Rivers to wear a cloth gown due to the shipping delay for isolation gowns. After
speaking with Finley, Garcia-Valdivia contacted Abacan at around 10:00 a.m. and
asked if she should release the additional isolation gowns stored in the charge nurse
office. Abacan responded, “of course, why wouldn’t you?” Garcia-Valdivia then went
to replenish the PPE supply cart with isolation gowns, but found that someone else
had already put gowns into the cart. After that, Rivers had enough gowns for the
remainder of her shift.
That afternoon, Rivers texted Abacan about her decision to wear a garbage bag
as PPE and her conversation with Finley. Because March 29 fell on a Sunday, it was
not a regular workday for Abacan. She explained to Abacan that she wore the
garbage bag because she was told not to use isolation gowns. She also told him that
she had spoken to Finley about the matter. Over the course of several texts, Rivers
suggested that Highland Hospital would benefit from updated PPE protocols because
it was unclear where the directive to wear cloth gowns originated. Rivers also
informed Abacan that another nurse wore a garbage bag during the prior night shift,
although she did not identify the nurse as Alaoui. Abacan acknowledged that Rivers
had valid concerns and said that management had not put any new restrictions on

10
accessing isolation gowns. Abacan then held a telephone conference with Busari,
Garcia-Valdivia, and Rivers. During the call, Rivers reiterated her concerns about
lacking clear PPE protocols. She expressed concern that what happened was not an
isolated incident and said she wanted to avoid future occurrences. Busari and Abacan
thanked her for bringing up the matter. Rivers e-mailed Finley that evening, thanking
him for speaking with her and suggesting that AHS develop clear, system-wide
protocols for using and distributing PPE during the pandemic. Finley responded,
thanking her for raising her concerns. Rivers also e-mailed unit management,
repeating her suggestion for developing PPE protocols.
On March 29, after Rivers sent her e-mail, Busari e-mailed all staff in the
Telemetry and Oncology unit. Her message was titled “PPE Concerns this weekend.”
Busari wrote “[i]t was brought to my attention that the staff used trash bags this
weekend to care for one of our patients on MDRO contact isolation.” She explained
management had not directed that to happen, “AHS is doing well with PPE supplies,”
and the incident was caused by a “communication breakdown.” Busari committed to
making sure that staff are prepared to handle PPE shortages. She said that staff
could bring their concerns to her at any time. She did not comment on why staff were
instructed to use cloth gowns as PPE and did not mention Alaoui or Rivers by name.
3. 	The April 2 San Francisco Chronicle Article
On April 2, the San Francisco Chronicle, a San Francisco-based newspaper,
published an article entitled “Coronavirus: Nurses are wearing trash bags at one Bay
Area hospital facing a protective equipment shortage.” The article reported on PPE
shortages for healthcare workers. According to the article, nurses during the night shift

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at the Highland Hospital Telemetry unit were not given protective gowns on March 29,
so they “created their own protective equipment by cutting holes in trash bags and
placing them over their uniforms.” Pearson was interviewed for the article and he said
that nurses were instructed by their supervisors to wear cloth gowns instead of
disposable fluid-resistant gowns. Pearson said that instruction put them at greater risk
for contracting COVID-19. Pearson then opined that supply shortages would cause
other PPE improvisations, which would make the hospital less safe. Neither Alaoui nor
Rivers were interviewed.
The article quoted AHS’s Director of Public Affairs and Community
Engagement, Terry Lightfoot. He stated that AHS had been preparing for a possible
surge of COVID-19 patients by conserving PPE supply consistent with the U.S.
Centers for Disease Control guidelines, and that doing so would ensure that AHS had
available PPE supplies to protect AHS’s patients and staff. No AHS representative
commented in the article about claims that nurses had worn garbage bags.
The article was available for viewing on the San Francisco Chronicle’s website.
The online version of the article includes multiple photographs. At the top is a picture
of a public demonstration over lack of PPE supplies. The article also includes two
photographs of Pearson with his dog. There is also a picture of Alaoui wearing a
garbage bag over his nurse scrubs. The article does not identify Alaoui as the person
in the photograph, and his eyes are cropped out of the picture and his face is
obscured by a mask covering his nose and mouth. The caption indicates that Pearson
posted the photograph on Twitter on March 30. At around 10:20 a.m. that day, ICU
Critical Care Director Cheryl Wilson-Talford e-mailed a link to the article to Busari and

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other AHS managers.
The April 7 Board of Trustees Meeting
On April 7, AHS’s Board of Trustees held a joint public meeting with the County
Board of Supervisors. The meeting took place over videoconference. Part of the
meeting focused on AHS’s response to the pandemic. The group discussed media
reports of the nurse who wore a garbage bag as PPE. DeVries asked Finley if staff
were being denied necessary PPE, and Finley responded that they were not. DeVries
then asked Finley, “for the purpose of political theater, have you required staff to wear
garbage bags?” Finley responded, “no,” and said that he happened to be visiting
7-ACT when the nurse reported wearing a garbage bag. Finley characterized the
incident as an “unfortunate episode” and said that isolation gowns were made
available later in the day. DeVries responded, “that kind of political theater is not
acceptable [in] a time of crisis and we need to keep our heads level and . . . our eyes
on the . . . real problem.”
A County Supervisor asked Finley what he knew about the incident. Recalling
his conversation with Rivers, Finley explained how staff told him that a charge nurse
instructed them to wear cloth gowns and to save isolation gowns for attending to
COVID-19 patients. Finley stated that a nurse elected to wear a garbage bag for
protection because she believed that cloth gowns were unsafe. Later, additional
isolation gowns were found and made available. Finley also reported that AHS did not
have a shortage of PPE isolation gowns. No one mentioned Alaoui or Rivers by name
or displayed their photographs at the meeting. DeVries spoke again, stating that he
did not believe that individual incidents, like the one about the garbage bag, should be

13
used to “suggest a wholesale change in the leadership of the system in the middle of a
pandemic.” He further noted that he “hope[d] we can focus more on the system and
what we can do to support it and less on these one off claims where people um,
sensationalize things by putting plastic trash bags on.” At hearing, DeVries explained
that he was referring to SEIU’s advocacy for disbanding the Board of Trustees and
returning direct control of AHS facilities to the County Board of Supervisors.
The meeting included a public comment period. Community members, including
AHS employees, spoke. Some appeared at SEIU’s request to raise concerns about
mismanagement and lack of PPE at AHS. Certain employees expressed anger at
DeVries’ suggestion that the nurse who wore garbage bags as PPE was engaging in
“political theater.”6
Alaoui’s Work History at AHS and Release from Probation
Alaoui began working the night shift in Highland Hospital’s Telemetry and
Oncology unit around July 2019. Alaoui was initially a traveler nurse.7 In or around
November 2019, a night shift CNII position became available and Alaoui applied for it.
Busari interviewed Alaoui briefly before offering him the position.
Between July 2019 and March 2020, none of Alaoui’s formal or informal
supervisors reported that he had any performance deficiencies. Busari and Abacan
6 A recording of most of the meeting was made available on the Board of
Supervisors’ website. For unknown reasons, 30 minutes of the recording are missing.
7 Travelers are employed by a temporary staffing agency and AHS does not
consider them to be its employees. Travelers supplement the AHS nurse workforce as
needed to maintain adequate staffing levels. The on-duty charge nurse oversees any
travelers during the shift.

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began investigating Alaoui on March 30, when they learned from Mendoza-Sanchez of
anomalies in Alaoui’s care for an alcohol withdrawal patient.
The ALJ made detailed findings about Alaoui’s work performance leading up to
his release from probation, to which no party excepted. These findings included that
during the March 29-30 night shift, Alaoui failed to administer medication to an alcohol
withdrawal patient as required by the patient’s treatment plan and alcohol withdrawal
assessment scores. On the morning of March 30, Mendoza-Sanchez approached
Alaoui for an explanation regarding the patient’s electronic medical record. Alaoui was
“really, really angry,” when Mendoza-Sanchez stressed the importance of following
protocol and the physician’s medication plan. Mendoza-Sanchez reported to Abacan
that Alaoui had not medicated the patient in accordance with the treatment plan. In her
communication with Abacan, Mendoza-Sanchez described this exchange with Alaoui
as “an argument, rather than a conversation.”8 The ALJ also found that Alaoui
improperly pulled medications for more than one patient at the same time in December
2019, and left medication unattended on a patient cart during the April 3-4 night shift.
Starting around April 6, Busari and Abacan began discussing whether to
release Alaoui from his probationary period, ending on May 6, because of his handling
of the alcohol withdrawal patient and patient medications over the preceding week.
They reviewed Alaoui’s previous charting and recent coaching e-mails sent to him. On
the evening of April 6, Busari and Abacan drafted a probationary release letter for
8 While Mendoza-Sanchez also told Abacan that Alaoui failed to perform the
related alcohol withdrawal assessments, the ALJ found that Alaoui did perform them,
but failed to promptly record them in the electronic medical record.

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Alaoui. On April 7, Busari sent the draft letter to Human Resources Business Partner
Paul Liem. His job duties include reviewing management decisions to release
employees from probation. Liem responded on April 9, removing some details
included in the earlier draft. Liem’s version described the basis for Alaoui’s release as
follows: “This action is being taken, because we have coached you on numerous
occasion[s] not to leave medication unattended . . . and not to pull medication for more
than one patient at a time. Moreover[,] on March 29, you failed to follow the
instructions of the [c]harge [n]urse and MD regarding treatment of a patient. These
errors pose a risk to patient safety.” Neither the draft nor the final version of the letter
included any reference to Alaoui’s wearing a garbage bag in lieu of PPE or SEIU
publicizing that incident.
Busari briefed her supervisor, Director of Nursing Menbere Tequame about her
decision to release Alaoui from probation. At hearing, Busari emphasized how the
combination of Alaoui’s misconduct led to her decision. She considered Alaoui arguing
with Mendoza-Sanchez and failing to medicate the alcohol withdrawal patient to be
significant transgressions. She also found Alaoui’s multiple violations of medication
handling policies highly problematic. There was no evidence that the letter, or the
decision itself, was reviewed by anyone else.
On April 13, Busari asked to meet with Alaoui at the end of his shift. They went
to a room where Abacan was already present. Busari handed Alaoui the final version
of the letter informing him that AHS was releasing him from probation, effective
April 23. Busari told Alaoui that his release was because of his handling of the alcohol
withdrawal patient. Alaoui was surprised and tried to explain what happened with that

16
patient but Busari was not receptive. Alaoui then asked, “does this have anything to do
with me wearing the trash bag and going on social media?” Busari responded, “What
are you talking about?” Alaoui responded: “[D]o not worry. You will hear from me.”
Alaoui then collected his belongings, turned in his employee badge and left.
Alaoui’s Conversation with Pearson About His Release from Probation
After leaving 7-ACT, Alaoui notified the on-site SEIU representative, and they
went to speak with Pearson in the Highland Hospital emergency room. Alaoui and
Pearson had not met before. Alaoui confirmed to Pearson that he was the nurse in the
photograph wearing the garbage bag that Pearson and others had been publicizing.
Alaoui explained he believed he was being retaliated against for wearing the garbage
bag. Alaoui also explained that he was scared to lose his medical benefits because of
the impact on his family. Pearson asked whether he could share what happened on
social media. Alaoui agreed.
Pearson’s Social Media Posts About Alaoui’s Release from Probation
Shortly after meeting with Alaoui, Pearson posted a “tweet” on Twitter.
Pearson’s tweet included a video of him announcing that AHS fired the nurse who was
photographed wearing a garbage bag as PPE. Without identifying Alaoui by name,
Pearson described the situation as “an incredibly transparent move by AHS to retaliate
against him for whistleblowing.” Pearson mentioned that the firing affected the nurse’s
wife’s ability to receive medical care for her serious illness and he demanded that AHS
reinstate the nurse. Pearson used profanity in the video. In text written above the
video message, Pearson included Finley’s office telephone number and e-mail
address. Pearson asked viewers to contact Finley and implore AHS to “do the right

17
thing.”
Pearson’s tweet received more than a thousand “likes,” indicating approval, and
more than a thousand “retweets,” indicating that others were sharing Pearson’s tweet.
Several users also commented responding to Pearson’s tweet. Some comments
stated that they had contacted Finley. Some comments expressed their opinions on
the termination. Some comments were media inquiries. Pearson continued to engage
with those who commented on his tweet, adding additional details about Alaoui’s
situation. One of the commenters, whose Twitter username is @GunterNine,
commented, “Calling isn’t going to do shit. Lynch the mother fucker.” Another Twitter
user, Molly Anderson, asked the commenter to delete the message, describing it as
offensive and not helpful; the commenter did not comply.
Pearson does not know who @GunterNine is. Pearson reported the comment
to Twitter under its program for identifying offensive or abusive content. Although
Twitter labeled the comment as containing sensitive material, Twitter did not remove it.
Pearson has no ability to remove other users’ comments on his tweets, short of
deleting his original tweet.
Management’s Initial Response to Pearson’s Tweet
Starting on April 13, Finley began receiving a high volume of telephone
messages and e-mail accusing him of retaliating against the nurse who wore the
garbage bag. Several messages used profane or graphic language. At first, Finley
was not aware that Alaoui had been released from probation. He also had not seen
Pearson’s tweet from that morning or any earlier social media postings featuring
Alaoui’s photo. He saw both later that day. Finley reviewed comments on Pearson’s

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tweet and saw additional messages accusing AHS of retaliation and demanding that
Alaoui be reinstated. He also saw @GunterNine’s “Lynch the mother fucker” comment.
Finley is African American.
Sometime that day, Hernandez responded to Pearson’s tweet, stating that she
was looking into the matter and that AHS appreciates the work of its healthcare staff.
Finley sent a copy of the tweet to the AHS Board of Trustees, informing them that he
was looking into the matter. He then contacted Chief Nurse Executive Janet McInnes
and asked if Rivers had been fired. McInnes, in turn, asked Vice President of Patient
Care Teresa Cooper. McInnes and Cooper are above Tequame in the
chain-of-command. Cooper told McInnes that she was not aware of any nurse
terminations that day. McInnes did not contact Busari or Tequame at the time.
McInnes reported to Finley that she had no knowledge of any terminations. Finley
informed the Board of Trustees that no nurse had been terminated.
McInnes continued to receive inquiries about Pearson’s tweet that day. At
around 10:47 a.m., Tequame e-mailed Cooper with details from Busari’s decision to
release Alaoui from probation. Cooper relayed the message to McInnes, who notified
Finley. This was shortly after Finley e-mailed the Board of Trustees that there had
been no terminations. Finley then informed the Board of Trustees that a nurse had, in
fact, been released from probation and that he would update them when he heard
more. Finley met with McInnes, who explained that Alaoui’s care for an alcohol
withdrawal patient was inconsistent with accepted standards of care. She also told him
that Mendoza-Sanchez had given Alaoui guidance or corrections on other issues.
Because Finley knew Mendoza-Sanchez, he contacted her to discuss what had

19
happened. She provided similar information as McInnes and also told Finley that she
did not know that Alaoui wore a garbage bag or was featured in any media. Finley
next spoke to Busari and Abacan. Busari explained to Finley that it was difficult being
publicly accused of retaliation and poor leadership. She told him that releasing Alaoui
from probation was the right thing to do in the interest of patient safety.
Early that afternoon, Finley followed up to inform the Board of Trustees that a
nurse was released from probation for performance reasons, and that those who
made the decision did not know that he posted images of himself wearing a garbage
bag on social media. He then said, “[t]he optics are bad. However, I can only discern
that the optics do not comport with the underlying facts.”
AHS’s April 14 Statement
By the afternoon, Hernandez requested that Finley develop an official AHS
response to the allegations in Pearson’s tweet, reasoning that “silence is deadly here.”
Lightfoot similarly felt that AHS should respond in order to “set the record straight.” He
also wanted to spotlight the type of offensive comments and messages directed
towards Finley, in particular the “Lynch the mother fucker” comment, which Lightfoot
interpreted as threatening. Lightfoot is also African American. Although he did not hold
Pearson directly responsible for comments made about his tweet, Lightfoot believed
that saying incendiary things on social media tends to elicit inflammatory responses.
At 1:23 p.m., Lightfoot sent the Board of Trustees, Finley, and other AHS
managers the statement he drafted, which had already been approved by Finley. He
also informed the Board of Trustees that he had already begun contacting local
elected officials who may have been notified of Alaoui’s release from probation. The

20
statement is titled “STATEMENT REGARDING RECENT EMPLOYEE
TERMINATION” and reads:
“Claims today by John Pearson, of SEIU 1021 that a nurse
was terminated based on his concerns regarding availability
of personal protective equipment are false and reflect an
ongoing agenda to conflate labor negotiations with a public
health crisis. Sadly, his unsubstantiated claims have
misdirected attention from herculean efforts by Alameda
Health System providers, nurses and staff to address the
COVID-19 pandemic. Furthermore, his irresponsible actions
inflame others to take egregious actions including threats
calling for the lynching of AHS’s chief executive officer. By
practice, AHS does not discuss individual personnel
actions. We make these decisions based on our overriding
priority of delivering patient care and fulfilling our mission of
serving all.”
Hernandez thanked Lightfoot for drafting the statement and asked for
assistance with formatting it in a way that she could post it to her social media
accounts. By the following morning, April 14, Lightfoot confirmed that the statement
was sent to media outlets. Later in the day, Hernandez tweeted a copy of the April 14
statement using her personal Twitter account.9
Finley’s April 22 Memo to AHS Staff
On April 22, Finley issued a memo to all AHS employees. It read:
“So many of you have stepped up in this difficult time and
your efforts reflect the best of our organization. Seeing this
character of AHS reveal itself, I am troubled by the recent
spate of public criticism leveled at our organization and our
people. Unfounded allegation and insinuation — worse yet,
9 While the statement was drafted on April 13, it is not entirely clear when AHS
issued it. However, we refer to this statement as the “April 14 statement,” as that is the
date Hernandez posted it on Twitter, and is consistent with the proposed decision.

21
hate-filled speech, have no place in this organization and
when such occurs, it undermines the good work of AHS and
every employee. I am immensely proud of your excellent
care and service. I will always support anyone acting in a
manner that reflects our values, including defending you
and our organization from unfair attacks. Likewise, I will
also appropriately handle any actions that violate these
same values. As your CEO, I am accountable for leading in
a manner that warrants your trust. This occasionally
involves circumstances where I may be unable to share
pertinent but sensitive facts openly. Consequently, this past
Monday I asked the Chair of our Board of Trustees to use
the recently established Covid-19 Response Task Force to
also look into the allegation of retaliation against an
employee relative to access to PPE. I have recommended
that the Board Chair assign the Chief Compliance Officer —
who reports directly to the Board — to conduct this
investigation and report the facts of what occurred.
Involving the Board and Chief Compliance Officer in a
personnel decision for an employee and frontline managers
is an extraordinary action. However, I am hopeful this
investigation will reassure and underscore our commitment
to transparency and allow all of us to continue to focus on
our patients and the community who count on us each day
and even more so during these challenging times.”
Relevant Procedural History
On April 23, SEIU filed this unfair practice charge.10 On April 29, PERB’s Office
of the General Counsel issued a complaint alleging that AHS interfered with rights
protected under the MMBA by DeVries’ April 7 “political theater” comments about
employees who wore garbage bags , by terminating Alaoui’s employment, by issuing
the April 14 statement that was critical of Pearson, and by Hernandez posting that
10 SEIU simultaneously filed a request for injunctive relief, pursuant to PERB
Regulation 32450. On May 5, the Board denied SEIU’s request for injunctive relief.

22
same and other negative comments about Pearson on Twitter on April 14. The
complaint also alleged that Alaoui’s termination was retaliation for expressing PPE
concerns and sharing with SEIU a photograph of himself wearing a garbage bag as
PPE.
On May 19, AHS filed an answer to the PERB complaint admitting some
allegations, denying others, and asserting multiple affirmative defenses. On June 18,
SEIU filed a motion to join Alaoui as a party to the case. AHS did not oppose said
motion, which was granted on June 20. The formal hearing took place over 16 days
between June 18 and November 10. After the second day of hearing, on July 29, SEIU
filed a motion to amend the PERB complaint. SEIU sought to include the allegation
that AHS further interfered with protected rights by issuing Finley’s April 22 memo. On
August 24, the ALJ issued an amended complaint, adding the requested allegation.
AHS denied the new allegation in an amended answer filed on September 10. Closing
arguments consisted of two rounds of briefs. SEIU and Alaoui filed joint briefs. The
case was fully briefed by February 1, 2021.
On February 15, 2022, the ALJ issued the proposed decision, dismissing all
aspects of the amended complaint and underlying unfair practice charge. Broadly, the
ALJ found that though SEIU had established a prima facie case of retaliation
regarding Alaoui’s release from probation, AHS met its burden of proving Alaoui’s
work performance problems, and not his protected activities, were the true reasons
that AHS released him from probation. The ALJ also dismissed the various
interference allegations, including finding that any harm caused by Alaoui’s release
from probation was outweighed by AHS’s legitimate reasons for the release, and that

23
each of AHS’s allegedly interfering communications fell under the safe harbor for
employer free speech.
SEIU filed timely exceptions, challenging only the ALJ’s dismissal of the
interference allegations.11 Specifically, SEIU argues that it proved its interference
allegations because: (1) the ALJ erred by failing to analyze Alaoui’s release from
probation under the “inherently destructive” standard described post; (2) DeVries’
comment that “political theater is not acceptable” was both threatening and inaccurate;
(3) AHS’s April 14 statement and April 22 memo showed a pattern of brinkmanship;
and (4) applying a new standard for “racially charged” speech that SEIU urges us to
adopt, AHS’s April 14 statement and April 22 memo constituted interference.
AHS filed a timely response, urging the Board to affirm the ALJ’s factual
findings and legal conclusions and dismiss the complaint in its entirety.
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
However, to the extent that a proposed decision has adequately addressed issues
raised by certain exceptions, the Board need not further analyze those exceptions.
(Ibid.) The Board also need not address alleged errors that would not affect the
outcome. (PERB Reg. 32300, subd. (e)(2); City of San Ramon, supra, PERB Decision
No. 2571-M, p. 5.) PERB Regulation 32300 provides that “absent good cause, the
11 Alaoui did not file his own exceptions or response, nor did SEIU name Alaoui
as a party to its exceptions. While Alaoui remains a joined party to the case, we
interpret the exceptions as filed on behalf of SEIU alone.

24
Board itself will not consider . . . issues and arguments not raised in the statement of
exceptions.” (Id., subd. (e)(1).) Further, the Board need not address matters that were
not raised before the ALJ. (See Colusa Unified School District (1983) PERB Decision
No. 296, p. 4 [“It is a well-established rule of administrative appellate procedure that a
matter never raised before the trial judge is not properly reviewed by the appellate
tribunal on appeal”].)
SEIU did not except to the ALJ’s dismissal of the claim that Alaoui’s release
from probation was retaliatory. We therefore consider this claim abandoned, and those
parts of the proposed decision are final and binding only on the parties to this case.
(PERB Reg. 32215; County of Orange (2018) PERB Decision No. 2611-M, p. 2, fn. 2;
City of Torrance (2009) PERB Decision No. 2004-M, p. 12.) In our interference
analysis, we therefore accept the ALJ’s finding that AHS had a legitimate,
non-discriminatory reason for releasing Alaoui on probation, viz., Alaoui’s work
performance problems, and not his protected activities, were the true reasons that
AHS released him from probation.
To establish a prima facie interference case, a charging party must show that
an employer’s conduct tends to or does result in some harm to protected union and/or
employee rights. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36 (San
Diego).) A charging party need not establish that the employer acted because of an
unlawful motive. (Claremont Unified School District (2019) PERB Decision No. 2654,
p. 20.) If a charging party establishes a prima facie case, the burden shifts to the
employer. (San Diego, supra, PERB Decision No. 2747-M, p. 36.) The degree of harm
dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of

25
protected rights, the employer must show that the interference results from
circumstances beyond its control and that no alternative course of action was
available. (Ibid.) For conduct that is not inherently destructive, the respondent may
attempt to justify its actions based on operational necessity. (Ibid.) In such cases,
PERB balances the asserted business need against the tendency to harm protected
rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.)
Within the category of actions or rules that are not inherently destructive, the stronger
the tendency to harm, the greater is the respondent’s burden to show its business
need was important and that it narrowly tailored its actions or rules to attain that
purpose while limiting harm to protected rights as much as possible. (Id. at pp. 36-37,
fn. 19.)
In SEIU’s exceptions asking us to reverse the ALJ’s interference conclusions as
to Alaoui’s release from probation and certain AHS communications, SEIU urges us to
amend and supplement this framework. As discussed below, we decline one of SEIU’s
suggestions and find no need to reach two others, as our traditional standards are
adequate to address this case.
I. 	Alaoui’s release from probation
SEIU, noting that the ALJ found sufficient indications of unlawful motive to
establish a prima facie case of retaliation, urges us to hold that any evidence of
animus triggers the inherently destructive standard. SEIU contends that this approach
“harmonizes the plain language” of Carlsbad Unified School District (1979) PERB
Decision No. 89 (Carlsbad) and Novato Unified School District (1982) PERB Decision
No. 210 (Novato). We disagree and explain.

26
If a charge or complaint alleges interference based upon the same conduct
giving rise to another claim, the interference claim is independent if it can be
established without the other claim being established. (County of San Joaquin (2021)
PERB Decision No. 2761-M, p. 18 (San Joaquin).) In contrast, if it is impossible to
establish interference without establishing the other claim, then the interference claim
is a derivative one. (Ibid.; County of Santa Clara (2021) PERB Order No. Ad-485-M,
p. 9.) Interference can be either an independent violation or derivative of another
violation, depending upon whether the facts at issue permit a charging party to
establish interference without establishing any other violation. (Id. at p. 9, fn. 8.) When
a complaint alleges both interference and retaliation based on the same set of facts,
and PERB sustains a retaliation finding, it will also at least find derivative interference.
(See City of Santa Maria (2020) PERB Decision No. 2736-M, adopting proposed
decision at p. 47 [city’s retaliatory investigation of union executive board members
also interfered with the union’s right to represent bargaining unit members].) While
retaliation claims may be accompanied by derivative interference claims, where
properly pled the same underlying facts may also support an independent interference
claim. (San Joaquin, supra, PERB Decision No. 2761-M, p. 18.)
In Carlsbad, the Board first established its test for interference under PERB
administered statutes. (San Joaquin, supra, PERB Decision No. 2761-M, p. 23, citing
Carlsbad, supra, PERB Decision No. 89, p. 5.) To establish a prima facie interference
claim, Carlsbad does not require evidence of unlawful motive, but rather only that the
employer conduct has a tendency to create at least “slight harm” to protected union
and/or employee rights. (San Joaquin, supra, PERB Decision No. 2761-M, p. 23.)

27
Novato built upon Carlsbad and established the primary framework PERB uses
to assess retaliation claims. (Novato, supra, PERB Decision No. 210, p. 3.) While a
party need not demonstrate motive to establish interference, under the Novato
framework, the charging party’s prima facie case requires each of the following four
elements: (1) one or more employees engaged in activity protected by a labor
relations statute that PERB enforces; (2) the respondent had knowledge of such
protected activity; (3) the respondent took adverse action against one or more
employees; and (4) the respondent took the adverse action “because of” the protected
activity, which PERB interprets to mean that the protected activity was a substantial or
motivating cause of the adverse action. (City of San Diego, supra, PERB Decision No.
2747-M, p. 26; City and County of San Francisco (2020) PERB Decision No. 2712-M,
p. 15 (San Francisco).) If the charging party establishes a prima facie case, and the
evidence also reveals a non-discriminatory reason for the employer’s decision, the
respondent may prove, by a preponderance of the evidence as an affirmative defense,
that it would have taken the exact same action even absent protected activity. (San
Francisco, supra, PERB Decision No. 2712-M, p. 15.) In such “mixed motive” or “dual
motive” cases, the question becomes whether the adverse action would not have
occurred “but for” the protected activity. (Id. at p. 16.)
SEIU relies on a footnote in Novato, which states:
“Unlike . . . the instant case, in interference cases where
motive/intent is not an issue, the charging party need only
make a prima facie showing that the respondent's
conduct tends to or does result in harm to employee rights
granted under EERA. The respondent then has the burden
of producing an operational necessity justification. The
Board will then balance the competing interests of the

28
parties and resolve the charge accordingly.”
(Novato, supra, PERB Decision No. 210, p. 5, fn. 7.) SEIU interprets this footnote to
mean that in interference cases where there is some evidence of unlawful motive, the
Board does not balance the competing interests of the parties, but rather must apply
the inherently destructive standard. That interpretation, however, would upend
decades of Board precedent. Novato merely confirmed that a charging party can
establish a prima facie interference case without evidence of unlawful motive. It did
not mean that any evidence of unlawful motive establishes inherently destructive
conduct, thereby requiring the respondent to show that no alternative course of action
was available. (See San Diego, supra, PERB Decision No. 2747-M, p. 36.)
In 40 years, the Board has never analyzed an interference allegation in the way
SEIU urges. Rather, to decide whether conduct is inherently destructive, the Board
focuses on the conduct’s impact. (San Diego, supra, PERB Decision No. 2747-M,
p. 36, fn. 18.) Thus, an adverse employment action taken against a known union
activist need not be inherently destructive if nondiscriminatory reasons warrant the
action, because in such circumstances the action does not send the message that
union activists will be disadvantaged. For instance, in Office of the Los Angeles
Superintendent of Schools (1982) PERB Decision No. 263 (Los Angeles), the Board
dismissed an allegation that the transfer of a union activist was retaliatory. (Id. at pp.
6-8.) While the Board found a prima facie inference of retaliatory motive based on a
highly critical performance appraisal which referred to the employee’s absences for
union meetings, the Board ultimately found the employer proved that it would have
transferred the employee regardless of her protected activities. (Ibid.) The Board also

29
found the employer’s conduct was neither inherently destructive nor otherwise
constituted interference. (Id. at pp. 8-9.)
Under slightly different circumstances, in State of California (Department of
Consumer Affairs) (2004) PERB Decision No. 1711-S, the Board held that even
though the charging party union established indicia of unlawful motive when the
employer demoted a supervisor who testified on behalf of employees at an arbitration,
the employer had not interfered with employee rights because the employer had a
“legitimate basis for its action.” (Id. at pp. 21-22.)
SEIU offers no compelling reason for a different finding here. This matter is
distinguishable from instances where the Board has found discipline inherently
destructive, such as where an employer disciplined an employee solely for conduct
undertaken as a union steward. (See State of California (Department of Corrections &
Rehabilitation) (2012) PERB Decision No. 2282-S, p. 16 (Corrections).)
SEIU’s proposed interpretation would mean that when a charging party
establishes a prima facie case of retaliation, then it is not enough for the employer to
show it would have taken exactly the same action even absent protected activity, as it
must also show that it had “no alternative course of action.” (San Diego, supra, PERB
Decision No. 2747-M, p. 36.) We find this impermissibly onerous. While there are
instances where animus establishing a prima facie case also triggers the inherently
destructive standard (Corrections, supra, PERB Decision No. 2282-S, p. 16), a
nondiscriminatory personnel action like Alaoui’s release from probation need not be
inherently destructive (see Los Angeles, supra, PERB Decision No. 263, pp. 8-9).12
12 We do not view SEIU’s role in publicizing Alaoui’s release from probation as

30
The ALJ thus did not err by balancing AHS’s asserted business need against
the tendency to harm protected rights caused by Alaoui’s release from probation. This
analysis assessed whether AHS’s interests in ensuring that its patients receive care
consistent with AHS policies and physicians’ orders outweighed the potential harm
caused by the release from probation of an employee who recently engaged in
protected conduct.
We agree with the ALJ that Alaoui’s release from probation, in the context of
both serious work performance issues and contemporaneous protected activity,
tended to cause comparatively slight harm to protected rights.13 Where employer
conduct would reasonably tend to discourage protected activity, this likely chilling
effect may, itself, constitute unlawful interference. (San Diego Unified School District
(1980) PERB Decision No. 137, p. 18.) Ending the employment of an employee who
has recently engaged in protected activity is likely to have a chilling effect on other
employees’ likelihood of engaging in similar actions, though that effect may be
lessened where serious work performance issues justified the employee’s
termination.14 Alaoui drew attention to employee safety concerns by allowing SEIU to
relevant to whether the action was inherently destructive.
13 “Comparatively slight” signifies only that the tendency to harm protected
rights is something less than inherently destructive. (San Diego, supra, PERB
Decision No. 2747-M, pp. 36-37, fn. 19.)
14 To the extent Los Angeles can be read to suggest that an employer’s
affirmative defense to retaliation automatically negates the possibility of harm under a
related but independent interference allegation, we reject any such automatic rule and
clarify that an employer’s business defense is properly considered as part of the
Carlsbad balancing analysis. (See Los Angeles, supra, PERB Decision No. 263,

31
post a picture of himself wearing a garbage bag in lieu of an isolation gown. When he
was released from probation shortly thereafter, it tended to harm protected rights.
We weigh that harm against AHS’s asserted business reasons for the release
from probation. SEIU did not except to the ALJ’s conclusion that AHS had a legitimate
nondiscriminatory reason for releasing Alaoui from probation for purposes of the
retaliation analysis; as noted ante, we do not disturb that conclusion. While there may
be instances when an employer’s established defense to retaliation does not defeat an
independent interference allegation based on the same underlying facts, that is not the
case here. We find the same justifications which the ALJ found, and to which SEIU
does not except, when independently applied to the balancing test, justify AHS’s
conduct sufficient to defeat this interference allegation. That is, the harm caused by
releasing Alaoui from probation shortly after he engaged in protected activity is
outweighed by AHS’s right to release an employee from probation for serious work
performance issues. The retaliation allegation is therefore dismissed.15
II. 	Employer Speech as Interference
In an interference case involving employer speech, the surrounding
circumstances are relevant to determine if an employee or union representative would
pp. 8-9.)
15 This case notably does not fall into the category of cases where the record
demonstrates an employer would not have undertaken an investigation absent
protected activity, which generally precludes the employer from relying on information
it would not have otherwise uncovered. (Regents of the University of California (2020)
PERB Decision No. 2704-H, pp. 35, 42; State of California (California Correctional
Health Care Services) (2019) PERB Decision No. 2637-S, pp. 20-21; California Virtual
Academies (2018) PERB Decision No. 2584, pp. 33-34.)

32
objectively tend to feel that the communication coerces, restrains, or otherwise
interferes with protected rights. (San Diego, supra, PERB Decision No. 2747-M,
p. 37.) Generally, an employer does not commit an interference violation if it
expresses or disseminates its views, arguments, or opinions on employment matters,
unless such expression contains a threat of reprisal or force or promise of benefit.
(Regents of the University of California (2021) PERB Decision No. 2755-H, p. 29
(Regents).) This safe harbor for employer speech does not apply, however, “to
advocacy on matters of employee choice such as urging employees to participate or
refrain from participation in protected conduct, statements that disparage the collective
bargaining process itself, implied threats, brinkmanship, or deliberate exaggerations.”
(Ibid., quoting Hartnell Community College District (2015) PERB Decision No. 2452,
p. 25 (Hartnell).) The Board examines the context of employer statements to
determine whether they convey a threat of reprisal or force, promise of benefit, or
demonstrate a preference for either one organization over another, or one group or
another within a single organization. (City of Arcadia (2019) PERB Decision
No. 2648-M, pp. 28-29; Hartnell, supra, PERB Decision No. 2452, p. 25, citations
omitted.) In cases involving employer speech, PERB considers the accuracy of the
communication in conjunction with the employer’s need to communicate in deciding
whether the employer can establish an affirmative defense. (San Diego, supra, PERB
Decision No. 2747-M, p. 37.)
1. 	DeVries’ April 7 statement that “political theater is not acceptable”
The ALJ found that DeVries’ statements at the April 7 meeting were permissible
expressions of opinion on a controversial topic debated by the employer and the

33
union, and that his statements contained no direct or indirect threats or promises.16
SEIU excepts to this finding, focusing on DeVries’ statement that “that kind of political
theater is not acceptable.” SEIU argues that in context, “political theater” referred to
protected activity, and by stating that activity was “not acceptable,” DeVries lost the
safe harbor for free speech and engaged in conduct which tended to harm protected
rights.17 Viewed in context, we find DeVries’ statement fell outside the range of
16 The ALJ also found that as an appointed member of AHS’s governing body,
acting in his official capacity, DeVries was considered an agent of AHS. No party
excepted to this conclusion, and it is therefore final and binding on these parties. Even
had AHS not waived any further challenge on this issue, we would affirm the ALJ’s
conclusion. “Agency is employed to impose liability on the charged party for the
unlawful acts of its employees or representatives even when the principal is not at
fault and takes no active part in the action.” (Alliance Marc & Eva Stern Math &
Science High School et al. (2021) PERB Decision No. 2795, p. 44 [judicial appeal
pending], citing City of San Diego (2015) PERB Decision No. 2464-M, adopting
proposed decision at p. 39, affd. sub nom. Boling v. Public Employment Relations
Board (2018) 5 Cal.5th 898 (Alliance).) Even had AHS excepted to the ALJ’s
conclusion, we would find that DeVries had at least apparent authority to act on behalf
of AHS. (Ibid.) “The inquiry is best framed as whether under the circumstances a
reasonable employee would believe the alleged agent ‘was reflecting company policy
and speaking and acting for management.’” (Alliance, supra, PERB Decision No.
2795, at p. 48, citing Compton Unified School District (2003) PERB Decision
No. 1518, p. 5, fn. 3, quoting Great Am. Products (1993) 312 NLRB 962, 963.) This is
an objective inquiry. (Ibid., citing City of San Diego, supra, PERB Decision
No. 2464-M, p. 18; Chula Vista Elementary School District (2004) PERB Decision
No. 1647, pp. 8-9.) Members of the AHS Board of Trustees set the agency’s policy
and have authority over AHS executive staff, including over Finley. Under these
circumstances, a reasonable employee would perceive that DeVries had at least
apparent authority to represent the official view of AHS. (See Alliance, supra, PERB
Decision No. 2795, at p. 50.)
17 The complaint paraphrased Devries’ statement, clearly alleging that “political
theater” referred to protected activity but omitting the “not acceptable” portion of
DeVries’ statement. AHS’s response to exceptions does not assert that SEIU’s
argument falls outside of the complaint or is otherwise barred. Further, had AHS

34
permissible employer speech. We explain.
First, we find that the actions DeVries described as “political theater,” in
context, were protected activities. DeVries’ statement occurred amidst an environment
of ongoing union and employee actions around safety and PPE shortages. At the time
of the meeting, employee access to PPE had been a major topic of discussion in both
traditional and social media. Employees were understandably fearful for their health in
the early days of a lethal pandemic, and SEIU publicized that employees wore
garbage bags instead of isolation gowns. SEIU was also holding public
demonstrations protesting lack of access to PPE and other safety issues around the
same time. DeVries believed SEIU was trying to leverage community sympathy over
the need for PPE in hospitals in order to draw more scrutiny from the County Board of
Supervisors of management practices at AHS.
DeVries’ own statements during the meeting further demonstrate that “political
raised such an argument, we would reject it, first, because PERB requires only notice
pleading. (State of California (State Water Resources Control Board) (2022) PERB
Decision No. 2830-S, pp. 14-15; San Joaquin, supra, PERB Decision No. 2761-M,
p. 21.) Moreover, even if the complaint were deficient, this allegation would meet the
standard for an unalleged violation. Nothing precludes the Board from considering an
unalleged violation on exceptions to a proposed decision if all of the necessary criteria
are met. (Alliance College-Ready Public Schools (2017) PERB Decision No. 2545,
p. 13.) “Under the unalleged violations doctrine, PERB has the discretion to consider
allegations not included in the charge or the complaint if: (1) the respondent has had
adequate notice and opportunity to defend against the unalleged matter; (2) the
unalleged conduct is intimately related to the subject matter of the complaint and is
part of the same course of conduct; (3) the matter has been fully litigated; (4) the
parties have had the opportunity to examine and be cross-examined on the issue; and
(5) the unalleged conduct occurred within the same limitations period as those matters
alleged in the complaint.” (Superior Court v. Public Employment Relations Bd. (2018)
30 Cal.App.5th 158, 192-193.)

35
theater” described MMBA-protected conduct. First, DeVries asked Finley whether “for
the purpose of political theater, have you required staff to wear garbage bags?” After
Finley answered no, and explained that he was not sure what led to staff wearing
garbage bags, DeVries continued: “that kind of political theater is not acceptable [in] a
time of crisis and we need to keep our heads level and . . . our eyes on the . . . real
problem.” Finley and others continued the discussion, and then DeVries again spoke
to return to the issue, stating:
“Can I just point out, I’m sorry, can I just point out that these
like individual stories that are being used to suggest a
wholesale change in the leadership of the system in the
middle of a pandemic uhh, is is extremely disturbing so I
hope we can focus more on the system and what we can
do to support it and less on these one off claims where
people um, sensationalize things by putting plastic trash
bags on.”
This follow up statement provided additional context to what DeVries meant by his
repeated use of “political theater” – individual stories and visible actions being used by
employees and SEIU to advocate for changes at AHS. It is well established that
“advocacy on behalf of a group of employees concerning working conditions is
protected activity.” (Berkeley Unified School District (2015) PERB Decision No. 2411,
p. 19.) DeVries’ characterization of the political theater engaged in by employees and
SEIU is at the heart of this type of protected activity – bringing attention to individual
problematic instances to advocate for changes in working conditions.
The MMBA gave DeVries the right to express even unflattering views on SEIU’s
actions so long as his statements did not include any threats of reprisal or promises of
benefit. (See City of Oakland (2014) PERB Decision No. 2387-M, pp. 25-26.) That

36
some employees felt DeVries belittled protected activities by labeling them as “political
theater” did not convert that phrase into a threat or promise. But his direct statement
that protected activity is “not acceptable [in] a time of crisis” sent a different message,
one that was not confined to DeVries’ opinion.
An employee listening to DeVries’ comments at the public meeting could
reasonably infer that he or she would be punished for engaging in the types of actions
which DeVries labeled “not acceptable.” That is because a reasonable employee
would understand “not acceptable” to mean disallowed or prohibited. (Alliance
Environmental Science and Technology High School et. al. (2020) PERB Decision
No. 2717, adopting proposed decision at pp. 24-25 [under PERB’s objective test,
implied threats constitute interference]; Los Angeles Unified School District (1987)
PERB Decision No. 611, adopting proposed decision at p. 50, citing Roadway
Express, Inc. (1979) 241 NLRB 397, 398 [employee who protested working conditions
at a demonstration in Akron, Ohio reasonably felt coerced when his supervisor later
asked him, “don’t you think you have done enough by going down to Akron?”].) While
DeVries did not state explicitly that employees would be punished, we find his use of
the phrase “not acceptable” to be sufficiently coercive to fall outside the safe harbor
for free speech. AHS does not directly assert an affirmative defense to this conduct
outside of arguing DeVries’ statement was a permissible expression of opinion, and in
any case we find the statement’s tendency to harm outweighs AHS’s need to respond
to employees’ or SEIU’s manner of expressing concerns about working conditions. We
thus conclude that DeVries’ April 7 comment that “that kind of political theater is not
acceptable” constituted interference under MMBA section 3506.5, and accordingly

37
order that AHS cease and desist from such conduct and post a notice to employees.
2. 	AHS’s April 14 Statement and April 22 Memo
The complaint, as amended, also alleged that AHS interfered with employee
rights guaranteed by the MMBA when it issued its April 14 statement and Finley’s
April 22 memo. The ALJ dismissed both allegations, finding that in context, those
statements did not rise to the level of threatening or coercive, and thus remained
within the safe harbor of permissible employer speech.
SEIU’s exceptions make two new arguments regarding both statements:
(1) that AHS’s April 14 statement and April 22 memo—taken together and in context—
constitute brinkmanship that establishes interference; and (2) that PERB should adopt
a different standard for assessing interference allegations that include “racially
charged” speech.18 SEIU made neither of these arguments before the ALJ. The Board
generally “decline[s] to review an exception raising an issue that was not presented to
the ALJ.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C,
p. 12; Colusa Unified School District, supra, PERB Decision No. 296, p. 4.)
Furthermore, we need not address these claims in detail, because we find that the
18 As part of urging the Board to apply a brinkmanship analysis to AHS’s
statements, SEIU first argues that the ALJ’s analysis is overly narrow because the
only form of interference he analyzed was whether those statements interfered with
members’ rights to choose their leaders under section 3506.5 subdivision (d), when
the amended complaint alleged a violation of section 3506.5 subdivision (b). As a
threshold matter, SEIU’s assertions are not supported by the contents of the proposed
decision. Further, SEIU does not sufficiently explain how considering all forms of
potential interference would have led to a different outcome, given that the ALJ
concluded that both the April 14 and April 22 communications were permissible
employer speech. We therefore do not analyze this exception further.

38
ALJ adequately addressed each of these allegations under the employer speech
standard (see County of Santa Clara, supra, PERB Decision No. 2629-M, p. 6), and
therefore the alleged errors would not affect the outcome (see City of San Ramon,
supra, PERB Decision No. 2571-M, p. 5). We nonetheless briefly address why SEIU’s
proposed new standards would not change the outcome in this case.
A. 	Brinkmanship
The Board has noted that parties to a collective bargaining relationship must be
afforded wide latitude to engage in “uninhibited, robust, and wide-open debate,” without
incurring liability for every impulsive act or intemperate remark. (Contra Costa County
Fire Protection District (2019) PERB Decision No. 2632-M, p. 31, citing City of Oakland,
supra, PERB Decision No. 2387-M, p. 23.) However, “[b]ecause the employer has
control over the employment relationship and knows it best, it is expected to make its
views known without engaging in implied threats, brinkmanship or deliberate
exaggerations likely to mislead employees” or their representatives. (City of Oakland,
supra, PERB Decision No. 2387-M, p. 25, fn. 5, citing NLRB v. Gissel Packing Co.
(1969) 395 U.S. 575, 619-20 (Gissel).) Beyond consistently noting that brinkmanship
falls outside the safe harbor for free speech, the Board has never found interference
based solely on alleged brinkmanship.19
19 Federal law has addressed the concept of brinkmanship. Under Gissel,
brinkmanship means “conscious overstatements” that an employer “has reason to
believe will mislead [its] employees.” (395 U.S. at p. 620; see Kawasaki Motors Mfg.
Corp. (1986) 280 NLRB 491, 499 [finding that employer engaged in brinkmanship by
“attempt[ing] to use words and pictures” to “escape a charge of intimidation yet benefit
from the coercive effect on its employees”]; Turner Shoe Co., Inc. (1980) 249 NLRB
144, 146 [describing brinkmanship as statements that “hover on the edge of the
permissible and the [im]permissible” and finding that employer’s leaflet in form of

39
SEIU urges us to adopt and apply a dictionary definition of brinkmanship, which
it provides as “[t]he practice, especially in international politics, of seeking advantage
by creating the impression that one is willing and able to push a highly dangerous
situation to the limit rather than concede.” (American Heritage Dict.,
https://ahdictionary.com/word/search.html?q=brinkmanship.) Specifically, SEIU’s
exceptions assert: “On April 13 AHS made cryptic statements tying Pearson to
[@GunterNine’s] comments. The next day, AHS Trustees conferred about how the
Union gave license to bigotry with the support of the Alameda County Board of
Supervisors. By April 22, the AHS’s CEO expressed that AHS was fighting the
adverse effects of ‘hate-filled speech . . . in this organization.’” According to SEIU, this
sequence of events shows that because AHS was “willing and able to push a highly
dangerous situation to the limit [of dishonesty, disparaging collective bargaining,
promises or threats] rather than concede,” it interfered with Pearson’s rights under the
MMBA.
We do not find any reason to adopt a more particular standard for brinkmanship
in this case. Furthermore, we are unpersuaded that the facts of this case fit the
definition of brinkmanship, even under the broad definition SEIU proposes. We thus
do not disturb the ALJ’s conclusion that neither AHS’s April 14 statement, nor April 22
memo, lost free speech protection such that they constitute interference.
B. 	Racially Charged Speech
In challenging the ALJ’s dismissal of the allegations that AHS interfered with
obituary notice and its reference to impending disaster was brinkmanship].)

40
protected rights by its April 14 statement and April 22 memo, SEIU’s exceptions also
ask PERB to adopt a new test to assess racially charged speech in the interference
context.
PERB has not adopted a unique test to assess racially charged speech. The
National Labor Relations Board (NLRB) has held that certain appeals to racial
prejudice may prevent reasoned choice in the context of an election campaign:
“[A]ppeals to racial prejudice on matters unrelated to the
election issues or to the union’s activities are not mere
‘prattle’ or puffing. They have no place in Board electoral
campaigns. They inject an element which is destructive of
the very purpose of an election. They create conditions
which make impossible a sober, informed exercise of the
franchise. The Board does not intend to tolerate as
‘electoral propaganda’ appeals or arguments which can
have no purpose except to inflame the racial feelings of
voters in the election.”
(Sewell Mfg. Co. (1962) 138 NLRB 66, 70.) But the NLRB will not set aside an election
when a party merely “limits itself to truthfully setting forth another party’s position on
matters of racial interest and does not deliberately seek to overstress and exacerbate
racial feelings by irrelevant, inflammatory appeals.” (Id. at pp. 71-72.)
SEIU urges that PERB adopt a modified version of Sewell by holding that
racially charged speech related to a labor issue interferes with protected rights if it is
either misleading or irrelevant to the labor issues in dispute. We need not resolve
whether to apply the NLRB’s precedent on racially charged speech, the modified test
SEIU proposes, or a different standard, because we again find PERB’s
employer-speech doctrine, as applied by the ALJ, adequately resolves the issues
here, where AHS merely responded to a third party’s deeply offensive online speech.

41
Accordingly, the remaining interference allegations are dismissed.
ORDER
Based on the foregoing and the entire record in the case, the Public
Employment Relations Board (PERB) finds that the Alameda Health System (AHS)
violated the Meyers-Milias-Brown Act, Government Code section 3500 et seq.
(MMBA), when it interfered with the rights of employees to participate in activities the
MMBA protects and protected rights of Service Employees International Union, Local
1021 (SEIU). All other allegations are hereby DISMISSED.
Pursuant to Government Code section 3509, subdivision (b), it hereby is
ORDERED that AHS, its governing board, and its representatives shall:
A. CEASE AND DESIST FROM:
1. 	Interfering with the rights of employees to participate in activities
the MMBA protects.
2. 	Denying SEIU its rights guaranteed by the MMBA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Within 10 workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to SEIU-represented
employees are posted, copies of the Notice attached hereto as an Appendix. An
authorized agent of AHS must sign the Notice, indicating that AHS will comply with the
terms of this Order. AHS shall maintain the posting for a period of 30 consecutive
workdays and shall also distribute it by electronic message, intranet, internet site, and
other electronic means AHS uses to communicate with employees in SEIU’s
bargaining units. AHS shall take reasonable steps to ensure that the Notice is not

42
reduced in size, altered, defaced, or covered with any other material.20
2. 	Provide PERB’s General Counsel, or the General Counsel’s
designee, with written notification of all actions taken to comply with this Order, as well
as any such further reports as the General Counsel or designee may direct; and
concurrently serve SEIU with all such notifications and reports.
Chair Banks and Member Krantz joined in this Decision.
20 In light of the ongoing COVID-19 pandemic, Respondent shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If Respondent
so notifies OGC, or if Charging Party requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
parties. OGC shall provide amended instructions to the extent appropriate to ensure
adequate publication of the Notice, such as directing Respondent to commence
posting within 10 workdays after a majority of employees have resumed physically
reporting on a regular basis; directing Respondent to mail the Notice to all employees
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing Respondent to mail the
Notice to employees with whom it does not communicate through electronic means.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-1793-M, Service Employees
International Union, Local 1021 v. Alameda Health System, in which all parties had the
right to participate, the Public Employment Relations Board found that the Alameda
Health System violated the Meyers-Milias-Brown Act (MMBA), Government Code
section 3500 et seq., by interfering with employee protected rights and protected rights
of Service Employees International Union, Local 1021 (SEIU).
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. Interfering with the rights of employees to participate in activities the
MMBA protects.
2. Denying SEIU its rights guaranteed by the MMBA.
Dated: _____________________ 	Alameda Health System
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.