Palomar Health (PERB 2895M)

CALIFORNIA NURSES ASSOCIATION,
and
CAREGIVERS & HEALTHCARE
EMPLOYEES UNION,
Charging Parties,
v.
PALOMAR HEALTH,
Respondent.
Case No. LA-CE-1581-M
PERB Decision No. 2895-M
March 15, 2024
Appearances: Nicole J. Daro and Anthony J. Tucci, Attorneys, for California Nurses
Association and Caregivers & Healthcare Employees Union; Daniel J. Kanter,
Associate General Counsel, for Palomar Health.
Before Krantz, Paulson, and Nazarian, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by Charging Parties California Nurses
Association (CNA) and Caregivers & Healthcare Employees Union (CHEU)
(collectively, Unions) and cross-exceptions by Respondent Palomar Health (Palomar)
to the proposed decision of an administrative law judge (ALJ). The underlying unfair
practice charge and complaint, as amended, primarily allege that Palomar violated the
Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq., by
(1) maintaining and enforcing an unreasonable access rule, (2) engaging in unlawful
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

2
surveillance, (3) unilaterally changing its past policy or practice to disallow the Unions
access to certain non-patient care areas by filing a lawsuit1 to enjoin the Unions from
being present in these areas, and (4) interfering with protected rights by filing that
Lawsuit.2 The ALJ found that Palomar maintained and enforced an unreasonable
access rule, engaged in unlawful surveillance, and interfered with protected rights by
pursuing some parts of the Lawsuit, but dismissed the unilateral change allegation, as
well as the allegation that Palomar interfered with protected rights via the trespass
cause of action in its Lawsuit.
Both the Unions and Palomar filed exceptions to the proposed decision. The
Unions except primarily to the ALJ’s dismissal of the unilateral change allegation, his
conclusion that only part of the Lawsuit constituted interference under Bill Johnson’s
Restaurants, Inc. v. NLRB (1983) 461 U.S. 731 (Bill Johnson’s), and perceived
omissions in the remedy. Palomar excepts primarily to the ALJ’s legal conclusions that
Palomar violated the MMBA, including that it maintained an unreasonable access rule,
engaged in unlawful surveillance, and interfered with protected activity by pursuing
any portion of its Lawsuit. Palomar also excepts to one evidentiary determination and
several aspects of the ALJ’s remedial order. After the proposed decision issued and
while the parties’ exceptions were pending, the Court of Appeal issued a published
decision, remanding the Lawsuit to the trial court with an order to dismiss it for lack of
1 Palomar Health v. National Nurses United et al. (Super. Ct. San Diego
County, 2022, No. 37-2022-00017624-CU-MC-NC), hereinafter “Lawsuit.”
2 The MMBA is codified at Government Code section 3500 et seq.
Undesignated statutory references are to the Government Code. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq.

3
jurisdiction, as the Lawsuit is preempted by the MMBA and subject to PERB’s
exclusive jurisdiction. (Palomar Health v. National Nurses United (2023) 97
Cal.App.5th 1189, 1212.)
Based on our review of the proposed decision, the entire record, and relevant
legal authority, we find the record supports the proposed decision’s factual findings.
We affirm in part and reverse in part the proposed decision’s legal conclusions,
sustaining each claim in the complaint.
FACTUAL AND PROCEDURAL BACKGROUND3
A. The Parties, Their Collective Bargaining Agreements, and Palomar’s
Solicitation & Distribution Policy
Palomar is a public agency within the meaning of MMBA section 3501,
subdivision (c), and PERB Regulation 32016, subdivision (a). Palomar operates two
acute care hospitals, or medical centers, one on Citracado Parkway in Escondido
(Escondido Medical Center) and one on Pomerado Road in Poway (Poway Medical
Center), as well as a number of other, smaller facilities.4 CNA is the exclusive
3 Palomar challenges the ALJ’s decision to exclude certain evidence at the
formal hearing but does not otherwise except to any specific finding of fact. This
factual background is drawn from the proposed decision, condensed for relevance to
the issues on exceptions, and supplemented by the record to provide additional
context for the discussion below.
On several points, witnesses provided slightly different accounts which the ALJ
did not explicitly resolve. After a thorough review of the record, we find any slight
differences in the testimony immaterial, except where otherwise noted, and no
conclusion relies on unresolved disputed testimony.
4 Prior to 2020, Palomar operated an acute care hospital on East Valley
Parkway. At some point in 2020, Palomar closed the East Valley Parkway facility and
replaced it with Escondido Medical Center, though there was some unspecified period

4
representative within the meaning of PERB Regulation 32016, subdivision (b), of a
bargaining unit of approximately 1,250 registered nurses (RNs) employed by Palomar.
CHEU is the exclusive representative within the meaning of PERB Regulation 32016,
subdivision (b), of a bargaining unit of approximately 1,600 non-RN caregivers
employed by Palomar.
of time during which both facilities were open.
As of the hearing in this matter, the following personnel held positions within
Palomar and the Unions, respectively. Angela Thill was Palomar’s Labor Relations
Manager. She began working for Palomar as a human resources business partner in
February 2019, and became the Labor Relations Manager in June 2020. Bill Kirby was
Palomar’s Director of Security. He started in that role in March 2022, and began
working for Palomar sometime in 2021. Ginger Faustino was a CNA Labor
Representative at Palomar since June 2018. Sara Gurling was a CHEU Labor
Representative since 2008, except for an eight-month period in 2014. Gurling was
assigned to Palomar several times since 2009. Her most recent assignment to
Palomar started in 2018.
From June 1, 2017, through May 31, 2021, Palomar and CNA were parties to a
collective bargaining agreement (CNA CBA). Article 28, “Association Access,”
provides:
“CNA shall designate up to two (2) authorized
representatives who shall be granted access to Palomar
Health facilities during hours of operation for the purposes
of ensuring compliance with the collective bargaining
agreement, adjusting grievances, and updating Association
bulletin boards. CNA’s designated representatives shall at

5
all times wear Palomar Health-provided identification and
shall not at any time interfere with the employees’ duties or
Palomar Health operations, or meet with any Registered
Nurses during their working time or in patient care areas.
Upon arrival at any Palomar Health facility, the CNA
representative shall notify the Security Department. CNA
may request access for additional individuals, such as CNA
officers, from the Chief Human Resources Officer or
designee for the same purposes as listed above, but such
access will be granted at the sole discretion of Palomar
Health.”
Similarly, Palomar and CHEU were parties to a collective bargaining agreement
covering the same time period (CHEU CBA). Article 6 of the CHEU CBA, “Union
Access,” is identical to the above-quoted portion of CNA CBA Article 28, except that
“CHEU” replaces “CNA” throughout.
Palomar maintains a “Resolution . . . Relating to Employee Relations for
Palomar [ ] Health” (Employee Relations Resolution), which Palomar adopted
February 10, 2003. Section 11 of the Employee Relations Resolution is titled
“Solicitation and Distribution of Written Material on [Palomar] Premises” and provides
in pertinent part that:
“[s]olicitation and the distribution of literature on [Palomar]
premises, including the grounds, premises and parking
areas, shall conform to the guidelines established by the
Employee Relations Office or other appropriate [Palomar]
official.”
Palomar’s “Procedure: Solicitation and Distribution of Literature” (Solicitation &
Distribution Policy) provides in relevant part:
“E. Persons not employed by the Palomar Health may not
solicit or distribute literature or written material on Palomar
Health property at any time for any purpose.

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“1. Human Resources and Security must be contacted with
regard to any solicitation and Security will escort any non-
employees off of the Palomar Health property.
“2. If after business hours, Security shall be contacted
directly.”
The Solicitation & Distribution Policy in the record shows that it was last revised
November 30, 2020.
B. The Unions’ Activities and Access to Palomar’s Facilities Prior to Spring
2022
1. 	Union Activity in Conference Rooms, Cafeterias, Patios & Break
Areas
From June 2018 until March 2020, Faustino visited the Escondido Medical
Center campus in her role as a CNA representative at least three times a week. She
would usually include a visit to the East Valley Parkway campus at least once a week
when it was still open, i.e., until sometime in 2020. In addition, Faustino would visit the
Poway Medical Center at least twice a week. Faustino estimated that, in total, she
visited Palomar facilities four to five times a week. She did so for a variety of reasons:
to attend Weingarten meetings,5 meet-and-confer sessions, or grievance meetings; to
communicate with nurses, update bulletin boards, and hold unit meetings; to table at
the facilities; and to hold education sessions as well as monthly Professional Practice
5 In NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten), the United
States Supreme Court affirmed the decision of the National Labor Relations Board to
afford employees the right, upon request, to union representation during investigatory
interviews. (Id. at p. 256.)

7
Committee meetings. 	Unit meetings, at which safety, scheduling, and other issues
were discussed, took place in the cafeterias or in a conference room. CNA would
request in advance to use conference rooms. Faustino conducted unit meetings once
every other week at the medical centers and once a month at the East Valley Parkway
facility when it was still open. From 2018 to 2020, Faustino would “round” at least once
a week per facility.
6
Faustino would typically encounter at least one manager per
rounding session at each facility, but more often at Escondido Medical Center
because of its size.
7
Faustino described tabling between June 2018 and 2020 in the cafeteria at the
Escondido Medical Center, at the East Valley Parkway campus, and in a conference
room next to the cafeteria at the Poway campus. Faustino conducted separate tabling
sessions for the day shift and the night shift, each of which lasted for at least two
hours. Faustino tabled approximately once every three weeks at each facility and for
each shift. While tabling at Escondido Medical Center, she would encounter members
of management frequently during the day shift and infrequently during the night shift.
At the East Valley Parkway campus, Faustino would encounter about one manager
during the day shift, but none at night. And at Poway Medical Center, Faustino
encountered “maybe about a handful during the day shift but really none at night.”
6 “Tabling” refers to the practice of a union representative sitting at a table with
literature or leaflets, where bargaining unit members may approach and obtain
information or education.
7 “Rounding” refers to the practice of union representatives traveling throughout
a facility to visit breakrooms, update bulletin boards, discuss issues with unit members
on their breaks, and give them written materials.

8
Per Faustino, more than once, and up to five times, management had offered
the Unions use of the conference room in the cafeteria at Escondido Medical Center,
and the Unions used that conference room with prior approval with no restrictions on
their activities. Thill confirmed that the Unions used the conference room on a regular
basis, such as for monthly union meetings.
During Gurling’s most recent CHEU assignment to Palomar, beginning in 2018,
she performed rounds, tabled in the cafeteria, and conducted unit meetings in a break
room, in the cafeteria, or outside in the patio area behind the cafeteria. She would try
to visit all the Escondido facilities on one day and go to the Poway facility on another
day. The Escondido facility on East Valley Parkway was her busiest shop, which she
would visit several times a week, during both day and night shifts. She would visit the
Poway facility once or twice a week to round and meet with members outside or in the
cafeteria or lunchroom. On some of these occasions, she handed out union flyers to
nurses on their break and left some on the lunch table. She would inform members in
advance when she was tabling in the cafeteria. She would perform such activities at
Escondido Medical Center frequently, on both the day and night shifts. Sometimes, on
the night shift, she would have trays with enchiladas set up in the cafeteria, and union
members would come, have enchiladas, and then sit and talk. She also performed
similar activities at Poway Medical Center, which was smaller than Escondido Medical
Center and required less frequent attention. From 2018 until 2020, Gurling tabled
approximately once a month or once every couple of months at each of these two
facilities and conducted unit meetings at least once every couple weeks at one of the
hospitals.

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2. 	Leafletting Outside the Escondido Medical Center Entrance
From 2018 through early 2020, Gurling leafletted a few times a year. Gurling
specifically recalled one occasion where union representatives leafletted at the front
entrances of both medical centers to turn out members for an upcoming action
protesting case manager layoffs. Gurling did this leafletting two or three days before
the action during the times when workers were coming and going, i.e., between 6:00
and 8:00 a.m., 2:00 and 4:00 p.m., and 6:00 and 8:00 p.m. She leafletted at
Escondido Medical Center approximately 20 to 25 feet from the door that serves as
the main entrance to the facility.
The front door at Escondido Medical Center consists of two automatic sliding
halves. The combined door is approximately eight feet wide. A wide walkway leads
straight from this entrance, with another walkway along the left side when exiting the
building. Patients, visitors, and staff use these walkways to enter the building. Usually,
two people would leaflet at two locations on either side of the portion of the walkway
leading straight from the entrance, approximately 20 to 25 feet from the entrance. At a
maximum, five or six people would leaflet in this location.
Before March 2020, Faustino leafletted outside the main entrance of a Palomar
facility approximately once every three or four months. Prior to an informational picket
conducted outside of Escondido Medical Center, she leafletted two or three times to
notify nurses of the upcoming picketing. The leafletting took place about 30-35 feet
from the main entrance doors to Escondido Medical Center. Faustino also leafletted at
the Poway Medical Center for the same purpose, but not at the East Valley Parkway
campus. Each leafletting session typically lasted for about two hours. Each time,

10
Gurling accompanied Faustino. They would leaflet in the morning from 6:00 to 8:00
a.m. and again in the evening from 6:00 to 8:00 p.m. Faustino described this
leafletting as follows:
“[F]rom six a.m. to seven a.m. [¶] [w]e would focus on our
members who are coming into work and using the front
entrance as a means to enter into the facility. And what I
would do is have the stack of leaflets in one arm and hand
them one copy as they are walking past me before they hit
the front entrance. . . . Similar fashion during the six p.m. to
seven p.m. hour as well. [¶] Then between the hours of
seven a.m. to eight a.m., I would be facing towards the front
entrance waiting for our members who are leaving that shift
on their way out to exit the facility to their cars or
transportation. And I would do the same. I would wait for
them to walk past me. I would have the stack of leaflets on
one arm and hand one copy of the leaflet to the outgoing
member. . . . And then for the evening shift, it would be
between seven p.m. to eight p.m.”
Faustino identified the nurses to whom she handed the leaflet by assessing whether
they were wearing scrubs, and whether they had an RN name badge. Faustino’s
interactions with the nurses during leafletting were typically less than 30 seconds. On
occasion, however, incoming staff would stop and chat with her for “about five minutes
. . . if they were early enough before their shift” and outgoing staff would do so for
“between five to eight minutes.” When a member wanted to have a more in-depth
conversation, Faustino and the member would move to the side. While leafletting
during that pre-March 2020 time period, she would occasionally see management
employees entering or exiting Escondido Medical Center through the main entrance.
To Faustino’s knowledge, Palomar never raised any concerns to the Unions regarding

11
their leafletting at, or more generally their access to, Palomar facilities during the
2018-2020 time period.
Gurling described the leafletting process at Escondido Medical Center similarly
to Faustino. Gurling’s interactions with people going in and out of the facility during
leafletting were “[v]ery brief, seconds, mostly salutations,” with conversations lasting
“on occasion . . . 30 seconds” and “very rare[ly] . . . minutes.” For longer interactions,
those leafletting would usually move off to the side. Gurling was able to identify CHEU
members by their badges, which state their job classification.8
Faustino and Gurling distributed a flyer together at the front and back entrances
of Escondido and Poway Medical Centers, respectively, around Halloween 2021. The
flyer asked ““WHAT’S SCARY TO NURSES AND CAREGIVERS?” and answered,
“UNSAFE STAFFING.” (Capitalization in original.) Some managers took the flyer and
the bag of mixed candy that came with it. None raised any issues with the Unions
8 After the declaration of a health emergency in March 2020 due to the outbreak
of the COVID-19 pandemic, union representatives did not access any of the facilities
for a while. CNA and CHEU conducted meetings with bargaining unit members and
management online. However, within weeks, the Unions’ representatives began to go
to the campuses again, to the peripheral exterior open areas to hold actions and other
concerted activities with union members. The Unions held approximately 9 to 12
actions in the 9 to 16-week period after the declaration of the health emergency,
including actions like rallies, press conferences, and car caravans. The first such
action occurred in April 2020; until the end of 2021, leafletting occurred approximately
once every two months, primarily at the Escondido and Poway Medical Centers.
However, union representatives did not table during the early days of the pandemic.
When the Unions did table at Escondido Medical Center after the outbreak of the
COVID-19 pandemic, they did so in the outside patio area behind the Starbucks café
at the far side of the first floor of the facility from the main entrance, typically during
shift changes.

12
distributing the flyer at these locations. The same is true of a Christmas card that had
a candy cane attached to it that Faustino and Gurling distributed at the entrances to
the medical centers in December 2021, wishing RNs and caregivers happy holidays,
and asking them to “Save the Date” for a January 13, 2022 action.9
C. 	Successor CBA Bargaining
Bargaining about successors to the 2017-2021 CBAs commenced in mid-April
2021. From the beginning, the parties conducted successor bargaining jointly for both
units. The union access provisions in the 2017-2021 CBAs—i.e., CNA CBA Article 28,
“Association Access,” and CHEU CBA Article 6, “Union Access”—were not “opened,”
meaning that neither the Unions nor Palomar sought to make any changes to these
provisions. After the predecessor CBAs expired on May 31, 2021, the parties agreed
to a number of extensions on a month-by-month basis, through which the expired
CBAs remained in effect without interruption until the end of February 2022.
Thereafter, Palomar would not agree to any further extensions. Palomar presented the
Unions with its last, best, and final offer and declared impasse in March or
April 2022.10 The Unions conducted a strike authorization vote in May. The parties
reached agreement on successors to the 2017-2021 CBAs around June 21.
9 The ALJ did not credit claims by Palomar that it was unaware of tabling and
leafletting prior to March 2022 in light of extensive testimony by the Unions’ witnesses to
the contrary coupled with the fact that these activities occurred often enough and were,
by their nature, so visible that they must have come to the attention of management,
either through direct observation or through reports from others. Having reviewed the
record de novo, we agree.
10 All further dates are in 2022 unless otherwise noted.

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D. The Unions’ Activities and Access to Palomar in Spring 2022
Around the time that Palomar presented its last, best, and final offer, union
leafletting at Palomar facilities increased to multiple times a week. Starting in mid to
late March, Faustino planned to leaflet at Escondido Medical Center and Poway
Medical Center around three times per week at each location, coinciding with each of
Palomar’s three daily shifts. Faustino did not give Palomar prior notice of these
leafletting sessions. She tabled relatively frequently at Escondido Medical Center, and
tabled on occasion at Poway Medical Center, from the end of March until the
beginning of June. During the latter period, she would table at Escondido Medical
Center at least once or twice every week, with frequency increasing over time.
Faustino did not give Palomar prior notice of these tabling sessions.
The Unions introduced more than a dozen flyers that Gurling, Faustino, and/or
other representatives of the Unions distributed at Palomar facilities between February
and May. On exceptions, no party challenges the ALJ’s summary of the flyers’
content, which include subjects such as “KNOW YOUR RIGHTS: BARGAINING &
STRIKES”; “Nurses & Caregivers – The Heart of Patient Care – Palomar Health Be
Fair!”; “Palomar Warned to Stop Union Busting and Withholding Information!”;
“Palomar Health RNs & Caregivers Tell Palomar: Stop Impeding Progress in
Bargaining, Negotiate in Good Faith!”; dates for strike education; and “I’LL STRIKE
FOR MY PATIENTS & PROFESSION.” (All formatting in originals.)11
11 While an e-mail from Palomar Chief Human Resources Officer Geoffrey
Washburn refers to some set of flyers from this time period as intending to disparage
or demean Palomar, union or employee speech on an employment issue is protected
even if it is intemperate, disparaging, inaccurate, or engenders ill feelings, unless such

14
speech is maliciously dishonest or so insubordinate or flagrant as to cause substantial
disruption in the workplace. (Mt. San Jacinto Community College District (2023) PERB
Decision No. 2865, pp. 21-22.) Palomar made no argument at hearing or on
exceptions that the content of the flyers lost protection under these standards. We
therefore find that the Unions’ efforts to communicate with their bargaining unit
members through these flyers about bargaining and disputes with the employer were
protected activity.
1. 	Union Activity in Conference Rooms, Cafeterias, Patios & Break
Areas
During the daytime on April 5, Faustino, Gurling, CHEU organizer Chris Novoa,
and two RN representatives and bargaining team members were tabling in the outside
patio area behind the Starbucks café on the first floor of Escondido Medical Center.12
The tabling involved education about strike rights. During the outside patio tabling on
April 5, Thill and Kirby approached union representatives including Gurling and
Faustino and told them they were violating Palomar’s Solicitation & Distribution Policy
and needed to leave. At some point that day, Gurling received a telephone call from
Maria Vivanco, the public sector lead for both Unions, who informed her that Palomar
had “some sort of no solicitation [policy] and that they might call the police.” Thill,
whose office is located in a different Palomar facility and who did not visit Escondido
Medical Center daily, had never seen or heard of union representatives tabling there
before.
By e-mail message to Thill dated April 25, Faustino requested to use the
conference room in the cafeteria at Escondido Medical Center to talk to the Unions’
12 Sometime during the first two years of the COVID-19 pandemic, Gurling
mislaid her Palomar-issued ID badge. The ALJ found that Gurling was not wearing a
Palomar-issued ID badge during the April 5 incident, but that there was no basis to
conclude she was not wearing such a badge on any subsequent occasion.

15
bargaining unit members on four days between April 29 and May 5, for between two
and four and one-half hours per day. She further requested to use the conference
room on the third floor next to the cafeteria at Poway Medical Center for the same
purpose for three hours on April 28 and two hours on May 6. Via e-mail reply on
April 26, Thill asked Faustino, “can you help us understand the planned use of the
rooms for 17.5 hours over the course of 6 days?” After several e-mails between
Faustino and Thill, Thill ultimately denied Faustino’s request to use the conference
rooms on the requested days.
On April 29, Faustino was sitting at a long table in the Escondido Medical
Center cafeteria, with flyers on the table. Faustino had just finished talking to some
bargaining unit members, who had gone back to work, when Palomar Chief Security
Officer Anis Trabelsi approached her and told Faustino she was not allowed to be
there. Faustino also noticed that one or two security officers were walking around in
the cafeteria without having their lunch with them, something she had not noticed in
the past when she met with members there.
Via e-mail message dated May 1, Washburn provided Vivanco with Palomar’s
Solicitation & Distribution Policy and “respectfully ask[ed] that union representatives
honor our policy.” Washburn also wrote that “[t]he Association Access article clearly
states the purposes for which access can be used,” to wit, “[e]nsuring compliance with
the collective bargaining agreement,” “[g]rievance representation,” and “[u]pdating
Association bulletin boards.” Washburn’s e-mail added: “Distributing literature on
Palomar Health premises with intent to demean Palomar Health and its leadership and
elevate disruption violates both our policy and union contract.”

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On May 3, Gurling was in the roof-top patio area on the third floor of Escondido
Medical Center outside the cafeteria, sitting by herself and eating lunch. Immediately
prior, she had been sitting in the cafeteria talking with Faustino and some nurses. She
had with her a clipboard and some strike vote pledge cards. She was planning to
leaflet the afternoon shift change at the front entrance to Escondido Medical Center
together with Novoa, who was going to bring the flyers. Thill approached Gurling and
told her that she had no right to be there and was violating Palomar policy and the
CHEU CBA. When Thill exited the facility on the ground floor later, she saw Gurling
sitting on a bench. Thill went back in and returned with Kirby; Thill and Kirby both
approached Gurling. Thill asked Gurling to leave and told her that she had no right to
be there. After some period of time, Gurling moved away from Thill and Kirby. By then,
Novoa had arrived and Gurling briefed him. They began leafletting once bargaining
unit employees started to arrive.13
On the morning of May 5, Gurling, Faustino, Novoa, and RNs and caregivers
participated in an hour-long Facility Bargaining Committee meeting in the cafeteria of
Escondido Medical Center. Within the first ten or fifteen minutes of the meeting, two
security officers arrived and stood at first five and later three feet from the meeting.
13 Kirby’s declaration in support of Palomar’s Lawsuit attached photographs of
the bench area that Kirby took at the time of this incident. The photos show the bench
in question with tall, dense vegetation growing immediately behind it and Thill standing
approximately three feet in front of the bench. On the bench are Gurling’s handbag
with a clipboard next to it and a bag of red union bracelets on top of the clipboard.
Photographs of the immediate vicinity of the front entrance to Escondido Medical
Center, including the leafletting area, do not show the bench in question, suggesting it
was some distance away from the entrance.

17
One or the other security officer was present for the entire meeting. Upon their initial
arrival, Gurling approached them and told them that it was a union meeting and
protected activity, that “they should not be surveilling and listening in on it and
watching,” and that “they should move away and leave.” The security officers first
moved away, but one of them came back to a table three and one-half feet away from
the meeting, where he sat down and placed a two-way radio on the corner of the table
and pointed it at the meeting. When Gurling approached the security officer and told
him to leave or move away from the meeting, he read to her from a piece of paper, “if
you don’t like being watched, then you can take your meeting outside of the hospital.”
The security officer stayed there for the duration of the meeting.
Also on May 5, Ricky Liuchan, who had worked as a security officer at
Escondido Medical Center since March 30, 2022, e-mailed Kirby that he and another
security employee had observed Novoa walk past the Emergency Room (ER) main
entrance in the direction of the ambulance bay. The two security employees followed
Novoa and “[w]hen we came around the corner of the building we observed [Novoa]
talking to a[n] ER nurse . . . with his back facing us directly outside the sleep rooms
patio exit in the ER.” The security employees stopped approximately 18 to 20 feet
away from where Novoa and the ER nurse were conversing. Once Novoa finished his
conversation, Novoa approached the security employees and claimed they were
taking away his right to talk with hospital employees. He walked back to the ER and
left the hospital facilities. Liuchan and Kirby both testified that there are tables and a
seating area in the patio area to which Liuchan’s e-mail message refers. Liuchan has
observed nurses taking their breaks in this patio area, which is “a good 38 feet” away

18
from the first parking spot in the ambulance bay. He confirmed that on the day in
question, he observed Novoa and the nurse in this patio area.
Kirby received two or three reports about union representatives being present in
the Escondido Medical Center cafeteria on various unspecified dates in Spring 2022.
On one such occasion, he responded to the cafeteria and asked the union
representatives to leave, which they refused to do. On several occasions, others
responded to the cafeteria for him.
2. 	Leafletting Outside the Escondido Medical Center Entrance
The proposed decision analyzed the evidence regarding the distance between
the front entrance of Escondido Medical Center and the various union representatives
who leafletted there, finding that they usually stayed approximately 20-25 feet away
from the entrance, only occasionally coming as close as four or five feet to that
entrance. We concur with this finding, and summarize the evidence as follows.
Kirby directed his staff to take photographs of union representatives leafletting
outside the main entrance to Escondido Medical Center in April and May. There are
also cameras permanently installed at the main entrance to Escondido Medical
Center, but these cameras do not work. In addition to the photographs already
discussed in footnote 13, Palomar introduced four photographs that show union
representatives on other occasions in front of the main entrance to Escondido Medical
Center.
Wolfgang Heller was Lead Security Officer at Escondido Medical Center at the
time, and in that position performed an exterior patrol of the facility about once every
hour. Heller testified that the first of these photographs, taken from the outside, shows

19
a male union representative standing approximately ten feet directly in front of the
sliding doors within the main entrance to that facility talking to “a medical staff
member,” who is standing at a similar distance from the side of the entrance.
However, the person identified by Heller as “a medical staff member” in this picture
appears to be the same person whom he identified as a female union representative
in the next picture described below. Identical shadows in these pictures show that they
were taken at the same time of, presumably, the same day.
The second photograph, also taken from the outside, shows the same union
representative standing to the side of the entrance speaking to another medical staff
member, who according to Heller is standing approximately five feet from the
entrance, closer to it than the former, and like him, to its side. Based on Heller’s
testimony and features on the photograph such as shadows, the union representative
appears to be standing perhaps a foot or two closer to the entrance than in the first
photograph but is farther away from the sliding doors because he is standing to the
side. The same photograph also shows a person whom Heller identified as a female
union representative “a little bit more than five feet, maybe eight feet or so” from the
entrance, to the side of the sliding doors, walking across the entrance towards the first
two individuals with a piece of paper in her outstretched hand.
The third and fourth photographs, taken from the inside, show a female union
representative approximately ten feet—according to Heller—from the entrance,
approaching it from the side and walking on a path that would have taken her parallel
across or slightly away from the entrance, again with a piece of paper in her hand.
Asked during direct examination, “how close did you observe union representatives in

20
relation to the front entrance,” Heller answered, “anywhere from five feet and even
closer,” such that “if they had taken an additional step or two [they] would have been
inside the hospital.” Asked subsequently by the ALJ, “what is the closest you
personally observed a union representative approach the door while interacting with
hospital staff,” Heller answered, “around five feet if not less,” without mentioning that
they could have entered the facility by taking one or two more steps.
In April and May, Liuchan observed union representatives anywhere from 4 or 5
feet to 40 to 50 feet from the main door to that facility handing out flyers and
conversing with medical staff who were entering. Liuchan estimated the distance
between the union representative and the main entrance to Escondido Medical Center
in the last two of the four pictures described above as eight to ten feet. He found the
distance between the female union representative and the entrance in the second
picture hard to judge but estimated it to be four or five feet, based on other objects in
the picture. Liuchan identified the individual in the same picture whom Heller identified
as a medical staff member as a union representative. He estimated this individual to
be standing within two feet of the entrance and the individual identified by Heller as a
union representative to be standing between three to four feet from the entrance,
commenting that “it’s a picture, so it’s hard to judge and make a true judgment.”
Liuchan’s “best estimate” of how close he saw union representatives passing out
flyers to the front entrance of Escondido Medical Center in April or May 2002 was
“within five feet.”
The four photographs of front-entrance leafletting introduced by Palomar
duplicate four of a total of 39 photographs that Palomar provided in response to a

21
records subpoena and which the Unions introduced at hearing. No photograph in the
record shows any union representative closer to the entrance than the four to five feet
described by Heller and Liuchan and shown in the four photographs described just
above.
When Kirby observed union representatives leafletting at the main entrance to
Escondido Medical Center in April and May, “they would move forward and backwards
from the front door to about 30 to 40 feet from the door depending upon who they
were talking or walking with,” in constant motion. Gurling typically stood near a rock
located approximately 30 feet from the door, while Faustino would stand by an
employee shuttle sign a little closer to the door but off to the left. Novoa, when not
talking or walking with anybody or making contact with employees, would stand about
the same distance from the entrance as Gurling and Faustino, on the right side. We do
not credit Kirby’s conclusory statement that the union representatives at times “were
blocking the entrance of the hospital,” as his more specific testimony described
observing that people might have to slow down and move around the representatives
as they entered or exited the hospital. This caused people to stop for “five seconds,
15-20 seconds.” On one occasion, Kirby experienced this himself. On that occasion,
the union representative was standing about four feet in front of the right half of the
sliding door.
Prior to April, Thill received no reports of union representatives leafletting in
front of the main entrance to Escondido Medical Center. In Thill’s opinion, leafletting
within 30 feet of the main entrance to Escondido Medical Center was “a distraction for
those that are coming into the community to seek services and allowing us to offer a

22
healing environment for our patients and their family members.”14 However, beyond
Thill’s opinion, she provided no concrete evidence of such “distraction,” let alone any
information to support the claim that these activities interfered with patient care.
On May 5, Gurling leafletted in front of the main entrance to Escondido Medical
Center. Security officers were present, but Gurling had minimal interaction with them
and they did not stay for long. However, according to an e-mail from Kirby on that day,
he observed Gurling and Novoa standing outside the main entrance to the hospital
and asked them to leave, to which Gurling replied they had a right to be on the
property. Further, according to the report contained in Kirby’s e-mail, “[n]o
photographs were taken due to the very low volume of pedestrian traffic in the area.”
RN Joanne Meza recounted that right before the strike vote in May, she and
two other bargaining unit members leafletted for CNA in front of the main entrance to
Escondido Medical Center, approximately 20 feet from that entrance. Two security
14 Palomar attempted to introduce only two pieces of evidence related to Thill’s
“distraction” claim, namely, two May 10, 2022 e-mail messages from an administrator
at Poway Medical Center, who did not testify, detailing a single alleged complaint by a
patient’s family member. Because Palomar failed to authenticate these e-mail
messages, the ALJ did not admit them into evidence. However, the ALJ received
related testimony, including from Washburn that he recalled a report by the
administrators at Poway Medical Center “from a patient’s family member that was
concerned about their mother being able to get care, stated that they’d been, in their
terms, aggressively approached in regards to a potential for a strike.” Such reports
involved at least two levels of uncorroborated hearsay and therefore cannot by
themselves support a finding. (PERB Reg. 32176.) Aside from this evidentiary
infirmity, union activity does not lose protection merely because it “distracts” patients
or their families on their way into a health care facility, and a single incident of such
distraction has even less relevance. It also appears that the single hearsay report was
primarily about concerns that a strike itself would disrupt patient care, a contention
which has no bearing on the matter at hand.

23
employees approached Meza and her colleagues and told them that what they were
doing was illegal and they could get in trouble with human resources. In April and
May, security employees on more than one occasion told union representatives that
they had to move as they could only leaflet “at the employee parking lot down the hill.”
During Spring 2022, the employee parking lot was approximately half a mile
from the front entrance to Escondido Medical Center. Kirby confirmed that each time
he encountered union representatives at the main entrance to Escondido Medical
Center, he would advise them that they were welcome to go to the employee parking
lot to engage with employees. Palomar has since closed that parking lot and
employees now park in a new parking structure approximately 35-80 feet away from
the ER entrance and 1,000 to 1,500 feet from the main entrance to Escondido Medical
Center. While per Kirby, Palomar has imposed no restrictions on the Unions’ ability to
communicate with their members at this new parking structure, on cross-examination,
he confirmed that Palomar’s Solicitation & Distribution Policy prohibits distribution of
union flyers by non-employee union representatives in that parking structure as well.
E. 	Palomar’s Lawsuit Against the Unions
On May 10, Palomar filed a Verified Complaint for Injunctive Relief (Verified
Complaint) against the Unions and Faustino, Gurling, Novoa, and Vivanco
(Defendants) in San Diego County Superior Court. The Verified Complaint alleges two
causes of action: (1) for “trespass,” i.e., that “defendants, their agents or assigns, have
occupied or entered the property of Palomar without right or consent, and with the
intent to injure Palomar”; and (2) for “unlawful picketing,” i.e., that “defendants have
engaged in unlawful disruptive activity on the property belonging to Palomar at

24
[Escondido Medical Center]” and that “defendants’ picketing has caused obstruction to
the ingress and egress to the [Escondido Medical Center] in violation of state law.”
(Capitalization and boldface omitted.) In its prayer for relief, the Verified Complaint
asks, among other things, “[t]hat Defendants . . . be permanently enjoined and
restrained from [¶] [p]icketing, parading, marching, standing, sitting, walking, or
otherwise being present inside or outside” Escondido Medical Center.
On May 11, Palomar filed an Ex Parte Application for Temporary Restraining
Order and Motion for Order to Show Cause Why Preliminary Injunction Should not
Issue (Application for TRO and Motion for OSC). The temporary restraining order and
preliminary injunction sought by Palomar’s Application for TRO and Motion for OSC,
respectively, are identical to the permanent injunction sought by the Verified
Complaint. On May 12, the superior court declined to order a TRO and scheduled a
preliminary injunction hearing for May 23. On May 19, PERB moved for leave to
intervene in the Lawsuit, seeking to have the Lawsuit dismissed for lack of jurisdiction
because the MMBA preempts the Lawsuit and PERB therefore has exclusive
jurisdiction over the matters alleged in the Lawsuit. On May 23 and June 13, the
superior court conducted an evidentiary hearing regarding the requested preliminary
injunction. During the hearing, the superior court judge directed Palomar to return to
court with security camera video recordings of the Unions blocking the entrance to
Escondido Medical Center. When Palomar’s attorney expressed concern that the
Unions and PERB could object to videotaping as surveillance violating the MMBA, the
judge stated that “just because somebody says that you can't video, for a – a legal
proceeding in the judicial system, videotaping, video’ing [sic], recording evidence is a

25
protected activity.” On June 13, the superior court denied Palomar’s requested
preliminary injunction without prejudice.
On June 10, and June 23, respectively, the Defendants filed a demurrer and a
special motion to strike. Also on June 10, the superior court granted PERB’s motion to
intervene. On August 12, the superior court overruled the Defendants’ demurrer and
denied their special motion to strike. In overruling the demurrer, the trial court
recognized that “PERB has exclusive jurisdiction over conduct that is ‘arguably
protected or prohibited’ by the statutes administered by PERB,” but concluded that
“the Court here will not be adjudicating any alleged unfair practices” and that,
therefore, “it has jurisdiction over the claims set forth in the plaintiff’s complaint.” In
addition, the superior court found that “plaintiff has set forth sufficient facts constituting
causes of action for trespass and unlawful picketing” and that “[t]he Court is unable to
determine on this limited record that the defendants have not improperly blocked
access to the hospital and/or trespassed on some portion(s) of plaintiff’s property.”
The trial court therefore overruled the demurrer, but added: “Of course, defendants
may continue to assert these same defenses as the case progresses and [a] more
complete record is developed.”
On September 13, the Defendants filed a Notice of Appeal with the Court of
Appeal, Fourth Appellate District (Court of Appeal), from the superior court’s orders
overruling their demurrer and denying their special motion to strike. On December 18,
2023, the Court of Appeal issued a published decision, finding that Palomar’s claims in
the Lawsuit are preempted and, therefore, the trial court lacks jurisdiction over the
dispute. (Palomar Health v. National Nurses United, supra, 97 Cal.App.5th 1189, 1212.)

26
The Court of Appeal reversed the trial court’s order overruling the demurrer and
remanded the Lawsuit to the trial court with directions to enter an order sustaining the
demurrer without leave to amend, and to dismiss the case on the grounds that it is
subject to the exclusive jurisdiction of PERB. (Ibid.) The Court of Appeal awarded costs
of appeal to appellants. (Ibid.)
F. Relevant PERB Procedural History
On May 11, CNA filed an unfair practice charge with PERB alleging that
Palomar’s Lawsuit “seeks to deny employee and non-employee representatives of
[CNA] access to [Palomar]’s facilities” and that by initiating the Lawsuit, Palomar “has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed by the MMBA.” On May 12, PERB’s Office of the General Counsel (OGC)
issued an Order to Expedite Processing at the OGC level. On May 17, the Unions
amended their charge to add CHEU as a charging party and to allege theories of
unilateral change, unreasonable and overbroad restriction of access, surveillance, and
discrimination. On May 31, Palomar filed a position statement.
On June 1, OGC issued a complaint. On June 3, the Unions filed a Request to
Expedite at All Levels. On June 9, OGC conducted an informal settlement conference,
but the parties were unable to settle their dispute, and the matter was assigned to an
ALJ to conduct a formal hearing. On June 15, the Board granted in part the Unions’
June 3 request to expedite processing, granting the request only at the OGC level,
thereby effectively reiterating OGC’s May 12 Order to Expedite Processing. On
June 20, Palomar timely answered the complaint, admitting the identity of the parties
and the existence of collective bargaining agreements between them but denying the

27
substantive allegations, and raising several affirmative defenses, including waiver. On
July 5, the ALJ scheduled the case for a formal hearing by video conference on
August 11, 26, and 31 and September 16 and 30.
On July 28, the ALJ issued a first amended complaint, which remains the
operative complaint in this matter and includes the four primary claims described ante,
at pages 1-2. On August 12, the Unions filed a Second Request to Expedite at All
Levels. The Unions also requested “that PERB modify the scheduling order for formal
hearing and order that Days 2, 3, and 4 of the formal hearing begin on August 31 and
run for consecutive days through September 2.” On August 24, the Board itself
granted the Unions’ Second Request to Expedite at All Levels, with the exception of
the request to modify the scheduling order for formal hearing, which the Board denied.
The ALJ conducted the formal hearing via video conference on August 26 and
31, September 16 and 30, October 7 and 13, and November 8.15 On January 13,
2023, the parties submitted post-hearing briefs.16 The ALJ issued the proposed
decision on May 12, 2023. After receiving an extension of time, the Unions filed timely
exceptions, and Palomar filed both a response to the Unions’ exceptions and separate
15 At 8:50 p.m. on August 25, the night before the first day of formal hearing in
this case, Palomar moved to strike certain allegations in the first amended complaint
based on the superior court’s August 12 orders overruling the Unions’ demurrer and
denying their special motion to strike. On the first day of hearing, the ALJ orally denied
Palomar’s motion as untimely.
16 On January 25, 2023, the Unions filed a request for a decision from the
Board itself. On February 10, 2023, Palomar opposed the request. On February 16,
2023, the Board denied the request.

28
exceptions of its own. The Unions filed a timely response to Palomar’s exceptions and
the matter was placed on the Board’s docket for resolution.
DISCUSSION
The Board enjoys broad discretion in its review of an ALJ’s proposed decision.
(PERB Reg. 32320; Oakland Unified School District (2007) PERB Decision No. 1880,
p. 2.) When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
However, if 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. (Ibid.)
I. 	Unreasonable Access Rule
A. Prima Facie Case
Palomar challenges the ALJ’s finding that it maintained and enforced an
unreasonable rule, on its face and as applied, via its Solicitation & Distribution Policy.
We agree that Palomar’s Solicitation & Distribution Policy was unreasonable both
facially and as applied.
MMBA section 3507, subdivisions (a)(6) and (7), provide that “[a] public agency
may adopt reasonable rules and regulations after consultation in good faith with
representatives of a recognized employee organization or organizations for the
administration of employer-employee relations under this chapter” and that “[t]he[se]
rules and regulations may include provisions for [¶] . . . [¶] [a]ccess of employee
organization officers and representatives to work locations” and “[u]se of official
bulletin boards and other means of communication by employee organizations.” PERB

29
Regulation 32603, subdivision (f), makes it an unfair practice for a public agency to
“[a]dopt or enforce a local rule that is not in conformance with the MMBA.”
A facial challenge to a local rule is based solely on the text of the rule. (City and
County of San Francisco (2020) PERB Decision No. 2691-M, p. 21 (CCSF), citing
Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) “Even where there is a
plausibly valid interpretation of an employer rule, a facial challenge will still succeed if
the rule has a chilling effect on employees or unions or otherwise interferes with or
impinges on protected rights even before being applied.” (CCSF, supra, PERB
Decision No. 2691-M, p. 49.)
An employer must allow an exclusive representative reasonable access to
employer property to communicate with bargaining unit employees, distribute
literature, investigate workplace conditions, and assess contractual and statutory
compliance. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp. 26-39
(San Joaquin).) An employer bears the burden of proving that a restriction on access
to its premises is: (1) necessary to safe or efficient operations; and (2) narrowly drawn
to avoid overbroad, unnecessary interference with protected rights. (Id. at p. 27.)
These principles apply irrespective of whether the person seeking access is a
bargaining unit member or a union representative who does not work for the employer.
(Ibid.)
An employer generally does not afford reasonable access if it infringes on an
employee’s ability to engage in protected activity either in a nonwork area or during a
nonwork time. (County of Tulare (2020) PERB Decision No. 2697-M, pp. 19-20;
Petaluma City Elementary School District/Joint Union High School District (2016)

30
PERB Decision No. 2485, pp. 45-47 (Petaluma).) For this reason, any employer rule
must clearly allow protected activity in nonwork areas and nonwork time. (County of
Tulare, supra, PERB Decision No. 2697-M, p. 20 [employers must refrain from
overbroad restrictions such as those that apply “during the workday,” without
differentiating between times an employee is working and times an employee is taking
a break]; see also Superior Court v. Public Employment Relations Bd. (2018)
30 Cal.App.5th 158, 195-197 [rule prohibiting protected activities in “working areas”
was unlawfully overbroad because it could be interpreted as categorical ban on all
such activities anywhere on employer’s premises].)
Even if a workplace includes sensitive areas focused on national defense,
acute patient care, or social services, the employer must narrowly tailor its rules and
afford access to the fullest degree possible given its unique constraints. (San Joaquin,
supra, PERB Decision No. 2775-M, pp. 28, 33-34, 38-39 [employer could have
escorted union representative through sensitive area during work time]; see also
County of Riverside (2012) PERB Decision No. 2233-M p. 9 (Riverside); Regents of
the University of California, University of California at Los Angeles Medical Center
(1983) PERB Decision No. 329-H, p. 10 (UCLA); Regents of the University of
California, Lawrence Livermore National Laboratory (1982) PERB Decision No. 212-H,
pp. 13-17.) In assessing an employer’s claim that it has narrowly tailored its rule to a
particularized operational need, PERB considers whether the rule allows access to
alternative venues that are a reasonable substitute for the restricted venue. (San
Joaquin, supra, PERB Decision No. 2775-M, p. 29.)

31
Foundational labor law principles under each PERB-administered labor
relations statute protect nondisruptive picketing (San Marcos Unified School District
(2003) PERB Decision No. 1508, p. 27 (San Marcos USD)), as well as “leafleting to
advertise a labor dispute” (Regents of the University of California (2012) PERB
Decision No. 2300-H, pp. 3 & 16). As summarized in Petaluma, supra, PERB Decision
No. 2485, both unions and employees engage in protected activity when they conduct
“peaceful picketing” or “distribution of leaflets or other materials to advertise
grievances or solicit support from employees and the public.” (Id. at p. 43.)
A hospital’s non-discriminatory restriction on non-business solicitation and
distribution is presumptively valid if it is limited to immediate patient care areas.
(Regents of the University of California (2018) PERB Decision No. 2616-H, p. 11;
Riverside, supra, PERB Decision No. 2233-M, p. 9.) But a hospital must normally
allow both employee and non-employee union representatives to traverse patient care
areas if necessary to reach areas where non-business activities are permitted.
(Riverside, supra, PERB Decision No. 2233-M, pp. 9 & 11; UCLA, supra, PERB
Decision No. 329-H, pp. 9-10, 14, 16-17.)
Palomar’s Solicitation & Distribution Policy specifies that “[p]ersons not
employed by the Palomar Health may not solicit or distribute literature or written
material on Palomar Health property at any time for any purpose.” The relevant portion
of Palomar’s policy appears to be a neutral rule in that it bans all solicitation and
distribution, whether union or otherwise.17 But it is unlawful, first, because it is not
17 While we note that other portions of the Solicitation & Distribution Policy
cover Palomar employees, and include some allowed solicitation and distribution,

32
limited to patient care areas and indeed prohibits union representatives from engaging
in solicitation and distribution in nonwork areas and during nonwork times.
none of these sections modify the language at issue here, and neither party presented
arguments related to those portions of the policy.
Palomar has not even attempted to justify its patently overbroad policy. Indeed,
Palomar’s arguments do not substantively address its written Solicitation & Distribution
Policy. Palomar thus asserts no arguments that this total prohibition is reasonable. We
find Palomar’s Solicitation & Distribution Policy violates the MMBA on its face,
because it fails to allow peaceful picketing and leafletting to communicate with
employees and the public outside of Escondido Medical Center, and because it fails to
afford the Unions reasonable access to communicate with bargaining unit employees,
distribute literature, investigate workplace conditions, and assess contractual and
statutory compliance. (See San Joaquin, supra, PERB Decision No. 2775-M,
pp. 26-39.)
Palomar’s arguments instead focus on its access rules as applied. Palomar
specifically seeks to defend its efforts to prevent two activities at Escondido Medical
Center: (1) leafletting in front of the main entrance; and (2) tabling in the third-floor
cafeteria and the patio area behind the first-floor Starbucks café. Palomar argues that
the ALJ failed to balance the Unions’ access rights with Palomar’s role as a healthcare
employer. According to Palomar, it was reasonable for it to prohibit leafletting in front
of the main entrance and tabling in the third-floor cafeteria and the patio area behind
the first-floor Starbucks café at Escondido Medical Center, “to avoid interference or
disruption with its operation and mission to heal, comfort, and promote health in the

33
communities it serves.” To support its arguments, Palomar cites to PERB precedent
for a number of propositions, including, for example, Riverside, supra, PERB Decision
No. 2233-M, p. 7 [access by non-employee union representatives is subject to
reasonable regulation upon the employer’s showing that a particular regulation is:
(1) necessary to the efficient operation of the employer’s business and/or the safety of
its employees and others; and (2) narrowly drawn to avoid overbroad, unnecessary
interference with the exercise of statutory rights]; and Salinas Valley Memorial
Healthcare System (2010) PERB Order No. Ad-387-M, p. 22 [access to employee
work locations is subject to reasonable restrictions “particularly in the hospital setting,
where considerations of patient care, privacy and security have primacy”].
But none of the cases Palomar cites supports its attempts to bar the Unions
from distributing written materials directly to their bargaining unit members in
indisputably nonwork areas of Palomar’s facilities, and from communicating with
employees and the public outside the main entrance of Escondido Medical Center.
Palomar fails to establish any evidence to support its conclusory claims that the
presence of union representatives leafletting and tabling in non-immediate patient care
areas disrupted its mission; thus its alleged “justifiable concerns” find no evidentiary
support. Nor does it offer any argument that its broad attempts to prevent the Unions
from distributing literature were narrowly drawn. None of the cases Palomar cites alter
the conclusion that its Solicitation & Distribution Policy, on its face and as applied, is
unreasonable and in conflict with the MMBA. For these reasons, we affirm the ALJ’s
findings that this is not a close case, both because Palomar has not remotely shown
that its rules are necessary for safe or efficient operations, and because the record

34
overwhelmingly disproves any possibility that its rules are narrowly drawn to avoid
overbroad, unnecessary interference with protected rights.18 We also affirm the ALJ’s
finding that the employee parking lot option that Palomar offered did not at that time
qualify as a reasonable alternative, and it would not so qualify were it still available
today.
B. 	Palomar’s Waiver Defense
As a defense to its decision to limit access rights, Palomar argues that when
the Unions agreed in their respective CBAs that each of them “shall designate up to
two (2) authorized representatives who shall be granted access to Palomar Health
facilities during hours of operation for the purposes of ensuring compliance with the
[CBA], adjusting grievances, and updating [union] bulletin boards,” they waived their
statutory right to leaflet or table in front of the main entrance and in the third-floor
cafeteria and the first-floor patio area at Escondido Medical Center.
Although PERB does not resolve contract disputes, PERB may interpret
contractual provisions as necessary to resolve unfair practice allegations. (Modoc
County Office of Education (2019) PERB Decision No. 2684, p. 15; San Joaquin,
supra, PERB Decision No. 2775-M, pp. 39-40 [interpreting contract to address
18 While we find no cause to quote Kirby’s testimony at length as the ALJ did,
we affirm the ALJ’s finding that his testimony did not aid Palomar. This is because
having to “slow down and move around” one or two leafletting union representatives
when entering a facility is not categorically different from what occurs naturally during
high traffic times and in any event is to be expected, because protected activity
causes patients and their families to walk more slowly, typically as they decide
whether to accept a leaflet about an ongoing labor dispute. That type of interaction is
the essence of communication the MMBA protects.

35
respondent’s waiver defense].) “A union and employer may agree to restrict union
activity during paid, non-working time, as long as the restriction does not seriously
impair employees’ right to communicate about union matters.” (Omnitrans (2009)
PERB Decision No. 2030-M, p. 21.) However, a “waiver of statutory rights must be
‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional
relinquishment’ of a given right.” (Modoc County Office of Education, supra, PERB
Decision No. 2684, p. 11, quoting Grossmont Union High School District (1983) PERB
Decision No. 313, p. 4.) The party asserting waiver carries “the burdens of production
and persuasion.” (Bellflower Unified School District (2017) PERB Decision No. 2544,
p. 7.) “[A]ny doubts must be resolved against the party asserting waiver.” (County of
Merced (2020) PERB Decision No. 2740-M, p. 10, quoting Placentia Unified School
District (1986) PERB Decision No. 595, p. 8.)
First, Palomar’s waiver defense fails because it ignores that a waiver of
statutory access rights may only apply “as long as the restriction does not seriously
impair employees’ right to communicate about union matters.” (Omnitrans, supra,
PERB Decision No. 2030-M, p. 21.) Here, a blanket prohibition against solicitation and
distribution of literature anywhere on Palomar’s property, without any demonstrated
reasonable alternatives, seriously impairs employees’ rights to communicate about
union matters and would be unlawful even if Palomar otherwise could establish waiver
via the CBAs. (See San Marcos USD, supra, PERB Decision No. 1508, p. 30 [no
waiver where provision impaired protected rights including because it potentially
affected employee rights to engage in non-disruptive informational picketing and
participate in union activities].) Palomar’s inconsistent assertions that it offered the

36
employee parking lot as an alternative fail for multiple reasons, including because a
parking lot a half-mile away is not a reasonable alternative, such alternative was
admittedly barred by the written policy, and that parking lot was defunct at the time of
hearing.
Further, even if Palomar’s restriction did not so seriously impair protected rights
to communicate that the Unions could not waive them, Palomar fails to establish a
“clear and unmistakable” waiver of the Unions’ statutory right to access for purposes
of solicitation and distribution. Palomar claims that by agreeing that access to Palomar
facilities “shall be granted . . . for the purposes of ensuring compliance with the [CBA],
adjusting grievances, and updating bulletin boards,” the Unions waived their statutory
right to access Palomar facilities for any other purposes. But the plain language of this
section does not clearly and unmistakably waive the Unions’ access rights. (See San
Joaquin, supra, PERB Decision No. 2775-M, p. 42.) An agreement that access shall
be granted to a specific number of representatives for specific reasons does not
clearly indicate that the Unions waived access for other representatives or for other
reasons protected by the MMBA.
Indeed, even if we were to consider the CBAs’ language ambiguous, we would
not find it to be a clear and unmistakable waiver of the Unions’ rights to access
non-patient care areas to communicate with their bargaining unit members. For one,
ambiguous language is by its nature not clear and unmistakable.19 For this reason,
public policy disfavors finding waiver by inference. (Rio Hondo Community College
19 The “clear and unmistakable,” standard means the same thing as “clear and
unambiguous.” (County of Merced, supra, PERB Decision No. 2740-M, p. 10, fn. 7.)

37
District (2013) PERB Decision No. 2313, p. 5.) Moreover, where contract terms are
ambiguous, the Board may look to bargaining history and past practice to discern the
parties’ intent. (Lodi Unified School District (2020) PERB Decision No 2723, p. 13.) In
those circumstances, the parties’ past practice under the contract before the dispute
arose, i.e., “[t]he parties’ practical construction of a contract,” provides “important
evidence of their intent.” (Antelope Valley Community College District (2018) PERB
Decision No. 2618, p. 19.) The ample record evidence of the parties’ practices under
CNA CBA Article 28 and CHEU CBA Article 6, which included regular leafletting and
tabling in the areas Palomar now insists such activities are not allowed, further
confirms that the Unions did not clearly and unmistakably waive their statutory access
rights.
In sum, Palomar has not met its burden to demonstrate a waiver as a defense
to its unreasonable and unlawful Solicitation & Distribution Policy. (See San Joaquin,
supra, PERB Decision No. 2775-M, p. 43.) By maintaining and enforcing an
unreasonable access rule, Palomar violated MMBA section 3507. By this conduct,
Palomar also derivatively violated sections 3506, and 3506.5, subdivisions (a) and (b).
II. 	Unilateral Change
A unilateral change to a matter within the scope of representation is a per se
violation of the respondent’s duty to bargain in good faith. (Stockton Unified School
District (1980) PERB Decision No. 143, p. 22.) Because a unilateral change has an
inherently destabilizing and detrimental effect upon the parties’ bargaining
relationship, it is unlawful irrespective of intent. (City of Montebello (2016) PERB

38
Decision No. 2491-M, p. 10; County of Riverside (2014) PERB Decision No. 2360-M,
p.18.)
To establish a prima facie case that a respondent employer made an unlawful
unilateral change, a charging party union that exclusively represents a bargaining unit
must prove: (1) the employer changed or deviated from the status quo; (2) the change
or deviation concerned a matter within the scope of representation; (3) the change or
deviation had a generalized effect or continuing impact on represented employees’
terms or conditions of employment; and (4) the employer reached its decision without
first providing adequate advance notice of the proposed change to the union and
bargaining in good faith over the decision, at the union’s request, until the parties
reached an agreement or a lawful impasse. (Bellflower Unified School District (2021)
PERB Decision No. 2796, p. 9.)
We focus on the first of the above elements—change in or deviation from the
status quo—as the ALJ noted it is the only one that Palomar seriously disputes, and
Palomar did not except to that finding. The Unions except to the ALJ’s dismissal of the
allegation that Palomar made an unlawful unilateral change by seeking an order from
the superior court to deny union representatives access to picket, parade, march, stand,
sit, walk, or otherwise be present in areas inside or outside of Palomar’s facilities, other
than the employee parking lot. Specifically, the Unions allege that the proposed
decision erred by finding an employer does not commit a unilateral change when it
seeks to make such a change through the courts. There are three primary means of
establishing that an employer changed or deviated from the status quo: (1) a deviation
from a written agreement or written policy; (2) a change in established past practice;

39
or (3) a newly created policy or application or enforcement of existing policy in a new
way. (Bellflower Unified School District, supra, PERB Decision No. 2796, p. 10.)
The record establishes a unilateral change under both the second and third
categories. As noted ante, in the past the Unions regularly engaged in protected
conduct in the very areas Palomar now insists such activities are disallowed. This past
practice was sufficiently “regular and consistent” (or alternately “historic and
accepted”) to constitute an established practice. (See Oakland Unified School District
(2023) PERB Decision No. 2875, p. 13; Pittsburg Unified School District (2022) PERB
Decision No. 2833, p. 12.) Moreover, even assuming for the sake of argument that the
record did not establish such a past practice, Palomar created a new policy or applied
or enforced policy in a new way when it for the first time sought to block the Unions
from non-patient areas. (Regents of the University of California, supra, PERB Decision
No. 2300-H, pp. 25-26 [employer previously had no rule against leafletting on sidewalk
alongside driveway immediately outside of acute care hospital]; Regents of the
University of California (2004) PERB Decision No. 1700-H, adopting proposed decision
at p. 62 [employer previously had no policy banning demonstrations inside university
building].)
Notably, a unilateral change does not occur at the point the change takes effect
but at the point when the employer decides to make a change, regardless of whether
the employer falls short of implementation. (City of Sacramento (2013) PERB Decision
No. 2351-M, p. 27.) The triggering event for notice and an opportunity to bargain is
therefore the employer’s firm decision to make a change. Palomar is not excused from a

40
finding that it made a unilateral change because one of its means of asserting that
change was to seek enforcement of its policy via the Lawsuit.
In this respect, Sacramento City Unified School District (2020) PERB Decision
No. 2749 (SCUSD) is instructive. There, the underlying complaint alleged that the
employer unilaterally changed the parties’ grievance arbitration procedure. (Id. at p. 1.)
The parties disagreed about the meaning of a salary schedule provision, and the union
filed a grievance alleging that the employer violated that provision, and subsequently
moved the salary schedule grievance to arbitration. (Id. at p. 4.) After the parties
selected an arbitrator and began scheduling a hearing, the employer filed suit against
the union in Sacramento County Superior Court, seeking a judicial declaration that the
salary schedule agreement did not constitute a valid contract and that the union
therefore had no right to arbitrate an alleged violation thereof. (Ibid.) The union
subsequently filed its own motion in the Sacramento County Superior Court litigation,
seeking an order compelling the employer to arbitrate the parties’ salary schedule
grievance. The court granted the union’s motion.
The employer contended that it did not implement a policy change, because it did
not explicitly indicate any intent as to whether or not it would follow a similar course with
respect to future grievances, and that its conduct therefore amounted to at most an
isolated contract breach. (SCUSD, supra, PERB Decision No. 2749, p. 8.) The Board
disagreed, concluding that the employer deviated from the status quo, changed
established past practice, and/or enforced existing policy in a new way, “because it
asserted a non-existent legal right to decide for itself whether the salary schedule
agreement was a binding contract and whether related disputes were arbitrable.” (Id. at

41
p. 9.) The Board reached this conclusion under facts where the employer deviated from
the contract’s grievance arbitration process, in part, by pursuing a suit in Sacramento
County Superior Court. While SCUSD differs from this matter in that there the employer
defended itself by arguing that the contract breach was isolated rather than a broadly
applicable change in policy, we do not find these differences sufficient to diminish its
import for the proposition that an employer may evidence a change in policy by seeking
enforcement of its policy change via the courts.
Just as the employer in SCUSD evidenced its decision to change policy by
refusing to arbitrate a grievance and initiating related litigation, Palomar evidenced its
change in policy by confronting union representatives engaged in protected activity,
evicting them from locations they had previously been permitted to access, and
pursuing related litigation. The Unions therefore established that Palomar deviated
from the status quo by changing past practice and/or by enforcing an existing policy in
a new way. Because no party excepted to the ALJ’s conclusion that the Unions met all
other elements of a unilateral change, the Unions established Palomar made an
unlawful unilateral change to its access policies, in violation of MMBA sections 3505
and 3506.5, subdivision (c). By the same conduct Palomar also derivatively violated
MMBA sections 3503, 3506, and 3506.5, subdivisions (a) and (b).
III. 	Interference
To establish a prima facie interference case, a charging party must show that a
respondent’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

42
Diego).)20 A charging party need not show that the respondent acted because of an
unlawful motive. (San Joaquin, supra, PERB Decision No. 2775-M, p. 24.)
If a charging party establishes a prima facie case, the burden shifts to the
respondent. (San Diego, supra, PERB Decision No. 2747-M, p. 36.) The degree of harm
dictates the respondent’s burden. (Ibid.) If the harm is “inherently destructive” of
protected rights, the respondent 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. (San Joaquin, supra, PERB
Decision No. 2775-M, p. 25.)
A. Surveillance
The Board has cited with approval case law on surveillance developed under
the National Labor Relations Act when assessing the lawfulness of employer
20 Charging party need only show that the employer engaged in conduct that
tends to or does result in at least slight harm to rights guaranteed by statute. (San
Joaquin, supra, PERB Decision No. 2775-M, p. 24.)

43
surveillance of protected activity.21 (County of San Bernardino (2018) PERB Decision
No. 2556-M, p. 20 (San Bernardino); Lake Tahoe Unified School District (1999) PERB
Decision No. 1361, adopting warning letter at p. 2.)
“The National Labor Relations Board (NLRB) has generally
found that an employer has engaged in unlawful
surveillance when the employer photographs or videotapes
employees or openly engages in recordkeeping of
employees participating in union activities. (F.W. Woolworth
Co. (1993) 310 NLRB 1197.) The mere observation of
open, public union activity on or near the employer’s
property, however, does not constitute unlawful
surveillance. (National Steel & Shipbuilding Co. (1997)
324 NLRB 499.)”
(Lake Tahoe Unified School District, supra, PERB Decision No. 1361, adopting
warning letter at p. 2.) “Photographing and recordkeeping are proscribed because of
their ‘tendency to intimidate.’” (San Bernardino, supra, PERB Decision No. 2556-M,
p. 20, quoting F.W. Woolworth Co., supra, 310 NLRB at p. 1197.)
Palomar excepts to the ALJ’s finding that it engaged in unlawful surveillance
when it photographed union representatives interacting with bargaining unit
employees in front of the main entrance to Escondido Medical Center and when,
during a May 5 meeting of union representatives and bargaining unit members in the
third-floor cafeteria at Escondido Medical Center, it created the impression that it was
21 Although California public sector labor relations precedent frequently protects
employee and union rights to a greater degree than does federal precedent governing
private sector labor relations, PERB considers federal precedent for its potential
persuasive value. (Operating Engineers Local Union No. 3, AFL-CIO (Wagner et
al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10 (OE3); City of Santa
Monica (2020) PERB Decision No. 2635a-M, p. 47, fn. 16; City of Commerce (2018)
PERB Decision No, 2602-M, pp. 9-11.)

44
transmitting, and possibly recording, audio. We address each of Palomar’s arguments
in turn.
i. 	Photographs of Leafletting
Palomar contends that it could not have engaged in unlawful surveillance by
photographing the leafletting outside Escondido Medical Center, because it believed
the union representatives were engaged in misconduct, and because the superior
court judge directed Palomar to record these activities as part of the Lawsuit. Neither
argument succeeds.
In San Bernardino, supra, PERB Decision No. 2556-M, union organizers
entered non-working, non-public areas of the employer’s facilities. (Id. at p. 4.) The
Board rejected the employer’s argument that because a manager deleted a single
photograph she had taken of the organizers speaking with employees, employees
could not have reasonably believed that the manager would use the photograph to
enact reprisals on them, as the fact “that she deleted the photograph only after the
SEIU organizers objected establishes that she was observed taking the photograph
and that enough time passed for a reasonable employee to have been intimidated by
her action.” (Id. at pp. 20-21.) The Board in San Bernardino concluded that “there was
at least slight harm” created by the manager’s actions in that case. (Id. at p. 22.)
Because the union there demonstrated slight harm to employee rights and the
employer failed to introduce a legitimate business justification, the Board held that the
employer interfered with employee rights by engaging in surveillance. (Id. at p. 23.)
Here, the record contains 39 photographs taken by Palomar security
employees, on specific orders by Palomar, of union representatives leafletting in front

45
of the main entrance to Escondido Medical Center. Several of these photographs
show union representatives interacting with individuals who appear based on their
attire to be bargaining unit employees. In light of San Bernardino—where the Board
found interference where the employer took only one photo that it quickly deleted,
versus here where the employer took and preserved multiple photographs—Palomar
taking these photographs tended to cause at least slight harm to employee rights and
therefore, absent a legitimate business justification, interfered with employee rights
under the MMBA.
Palomar argues that it had a legitimate operational need to photograph union
representatives engaged in protected leafletting, in light of its belief such activity was
unprotected, and because the superior court judge presiding over a portion of its
Lawsuit requested evidence of the leafletting. The ALJ properly considered and
rejected Palomar’s first argument. Palomar attempts to rely on the statement in San
Bernardino that “[p]hotographic or video surveillance may be justified as necessary to
gather evidence when the employer reasonably believes that union organizers or
employees are engaging in misconduct.” (San Bernardino, supra, PERB Decision
No. 2556-M, p. 22, citing Rahn Sonoma Ltd. (1997) 322 NLRB 898, 902; Roadway
Express (1984) 271 NLRB 1238, 1244.) But the Board rejected this defense in San
Bernardino, supra, PERB Decision No. 2556-M because the access policy that union
representatives allegedly violated was unlawful, and “[d]ocumenting a violation of an
unlawful policy cannot be a cognizable justification for engaging in surveillance.” (Id. at
p. 23.) Having found ante at pages 28-37 that Palomar’s Solicitation & Distribution

46
Policy was unlawful, we similarly find that Palomar cannot use it as a shield to justify
its surveillance.
Palomar contends that the superior court judge’s direction justified its
photographs. During the preliminary injunction hearing, the superior court judge
directed Palomar to return to court with security video of the Unions blocking the
entrance to Escondido Medical Center. When Palomar’s representative expressed
concern that both the Unions and PERB itself could object to that conduct or assert
that such conduct ran afoul of PERB-administered statutes, the judge assured that
such activities would be protected. Complying with a judge’s request could arguably
support an employer’s claimed operational need.
But Palomar’s defense fails for multiple reasons. First, Palomar failed to raise to
the ALJ that it believed its photographs were justified by the trial court judge’s
direction, and thus waived any such argument. (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”].)
Even if Palomar had not waived the argument, it fails on the merits. Palomar
failed to establish when its security employees took the photographs of leafletting.
However, per Kirby, he directed security employees to photograph union
representatives leafletting in April and May. The trial court judge did not make the
request until June 13; the record does not support Palomar’s contention that it took the
photographs because of the judge’s request. Furthermore, the record does not
support Palomar’s claims about what the judge requested. The superior court judge

47
specifically contemplated that Palomar had existing or ongoing security camera
footage, not photographs taken by security officers. Had Palomar produced security
camera footage from the entrance to Escondido Medical Center recorded after the
judge’s request, its defense might be a closer call. But the security cameras at the
entrance were not functioning, and there is no evidence that Palomar took any actions
to fix or replace them in order to comply with the superior court’s request. And
Palomar’s production of undated still photographs taken by security officers is
sufficiently distinct from the superior court judge’s request that such substitution
cannot justify Palomar directing security officers to take still photographs of employees
engaged in protected activities.
Finally, even if we accepted that the superior court judge’s request gave
Palomar some reason to photograph protected activity, we would next balance the
asserted business need against the tendency to harm protected rights. (San Diego,
supra, PERB Decision No. 2747-M, p. 36.) Security officers actively photographing
protected activity holds a greater potential for harm than a 24-hour security camera,
and that elevated harm, paired with the distinction in the superior court judge’s
request, tips the balance in favor of finding the harm outweighs Palomar’s justification.
ii. 	Radio at May 5 Meeting
Palomar also excepts to the ALJ’s finding that a security officer placing a
two-way radio on a table in the cafeteria during a May 5 union meeting constituted
unlawful surveillance. Palomar reasons that because the Unions did not prove the
radio was recording or transmitting, the finding was in error. But precedent does not
require proof of actual surveillance to sustain a violation. Rather, “an employer violates

48
an employee’s right to engage in protected activity if it creates the impression among
employees that it is engaged in surveillance.” (San Bernardino, supra, PERB Decision
No. 2556-M, adopting proposed decision at p. 21, citing NLRB v. Simplex Time
Recorder Co. (1968) 401 F.2d 547.) By placing a two-way radio visibly near to where
union representatives and employees were meeting, Palomar’s security officer at least
created the impression that the radio was recording the meeting and/or transmitting it
to someone unseen. The appearance of and/or the actual surveillance engaged in at
the May 5 meeting harmed protected rights and had great potential to chill protected
activity by CNA and CHEU bargaining unit members. Palomar offers no business need
for this conduct. Accordingly, the record supports that Palomar engaged in unlawful
surveillance during the May 5 meeting, or at least unlawfully created the appearance
of such surveillance.
By its unlawful surveillance, Palomar interfered with protected rights in violation
of MMBA sections 3506, and 3506.5, subdivisions (a) and (b).
B. Palomar’s Lawsuit
Where a charging party alleges that a respondent has interfered with or retaliated
against protected activities via litigation-related conduct, PERB applies the principles
articulated in Bill Johnson’s, supra, 461 U.S. 731, thereby following “a qualified litigation
privilege that preserves parties’ ability to litigate colorable legal rights while disallowing
baseless, bad faith conduct that tends to harm protected labor rights.” (Victor Valley
Union High School District (2022) PERB Decision No. 2822, p. 10 (Victor Valley), citing
OE3, supra, PERB Decision No. 2782-M, p. 11.) Under these principles, the charging

49
party must prove that the respondent acted without any reasonable basis and for an
unlawful purpose. (OE3, supra, PERB Decision No. 2782-M, p. 8.)22
The Unions make several related arguments for why the entirety of Palomar’s
lawsuit constitutes unlawful interference, and thus the ALJ erred in only finding part of
Palomar’s lawsuit violated the MMBA. The Unions primarily argue that the proposed
decision erred by (1) failing to expand PERB’s Bill Johnson’s interpretation, and
(2) finding that Palomar’s trespass claim did not lack a reasonable basis. Palomar, in
turn, argues the ALJ erred in finding that any part of Palomar’s lawsuit lacked a
reasonable basis, and urges us to reverse the proposed decision and find no violation.
We analyze the underlying facts and the parties’ arguments under the traditional Bill
Johnson’s analysis as previously adopted by the Board, and supplement the proposed
decision’s analysis to affirm in part and reverse in part, concluding that the entirety of
Palomar’s Lawsuit was without a reasonable basis and for an unlawful purpose, and
thus constituted interference under PERB precedent.
i. 	Reasonable Basis
A party acts without any reasonable basis if it either takes a position that is
plainly foreclosed as a matter of law or has not presented evidence raising genuine
issues of material fact, or mixed questions of law and fact, that could allow it to prevail.
(Bill Johnson’s, supra, 461 U.S. at pp. 745-747; Rim of the World Unified School District
(1986) PERB Order No. Ad-161, p. 17.) In analyzing whether Palomar “acted without
22 The absolute litigation privilege in Civil Code section 47, subdivision (b) does
not apply in PERB proceedings. (Victor Valley, supra, PERB Decision No. 2822,
pp. 10-11, fn. 7; OE3, supra, PERB Decision No. 2782-M, p. 10.)

50
any reasonable basis” when it filed and prosecuted the Lawsuit (OE3, supra, PERB
Decision No. 2782-M, p. 8), the ALJ distinguished between the Lawsuit’s cause of
action for trespass, the cause of action for unlawful picketing, and the prayer for relief.
The Lawsuit’s cause of action for trespass turns on the allegation that the Unions
or their agents “occupied or entered” Palomar’s property “without right or consent, and
with the intent to injure” Palomar. As established ante, the Unions at all relevant times
“occupied or entered” Palomar premises by right of access under the MMBA, if not with
Palomar’s consent. While the ALJ found that Palomar had presented evidence raising
genuine issues of material fact, or mixed questions of law and fact, thereby giving it a
colorable trespass claim, we disagree.
Palomar states that it had a reasonable belief it could prevail in its trespass claim
based on CNA CBA Article 28, “Association Access,” and CHEU CBA Article 6, “Union
Access,” each of which provides that the respective union “shall designate up to two
(2) authorized representatives who shall be granted access to Palomar Health facilities
during hours of operation for the purposes of ensuring compliance with the collective
bargaining agreement, adjusting grievances, and updating [union] bulletin boards.” But,
as discussed ante, this alleged belief is contrary to foundational rights guaranteed by
the MMBA, the plain language of the CBAs, and Palomar’s long history of allowing
tabling and leafletting outside and in the non-patient care areas of its facilities. That the
access rights Palomar seeks to label as “trespass” are so fundamental, and that
Palomar did not interpret the CBAs to exclude leafletting and tabling at any point before
Spring 2022, cements that it had no colorable trespass claim.

51
Central to the Lawsuit’s cause of action for unlawful picketing are the allegations
that the Unions “have engaged in unlawful disruptive activity” at Escondido Medical
Center, and that the Unions’ alleged picketing “caused obstruction to the ingress and
egress to the [Escondido Medical Center] in violation of state law.” However, no
documentary evidence or witness account supports that any of the activities the Unions
engaged in were “unlawful[ly] disruptive” or “caused obstruction to the ingress and
egress to [Escondido Medical Center] in violation of state law.”23
Testimony established that union representatives usually leafletted approximately
20-25 feet away from the main entrance of Escondido Medical Center and only
occasionally came within five feet of that entrance. Although Palomar security was
under orders to document such leafletting, none of the numerous photographs that
Palomar attached to their filings in the Lawsuit, submitted into evidence in the present
case, or produced to the Unions in response to a records subpoena, show any union
representative closer than five feet to the front doors. Those doors are eight feet wide,
and consist of two sliding halves, meaning they cannot be easily blocked even if a
person were to stand immediately in front of them. Palomar did not point to a single
concrete incident in which the leafletting would have interfered with employee or patient
23 For this same reason—a total lack of evidence that the Unions or their
representatives blocked ingress or egress on any occasion—we do not consider
Palomar’s exception that the ALJ erred by failing to discuss the Centers for Medicare
and Medicaid Services Life Safety Code section 02.01.20. Said code requires that
hospitals maintain means of egress that are clear and unobstructed; because there
was no credible evidence that the Unions blocked ingress or egress on any occasion,
considering this exception could have no impact on the outcome. (See City of San
Ramon, supra, PERB Decision No. 2571-M, p. 5.)

52
access to the facility, nor did a single one of the aforementioned photographs show
such interference. We affirm the proposed decision’s finding that Palomar’s cause of
action for unlawful picketing lacked a reasonable basis.
The Lawsuit was even more frivolous in its requested remedy, which included an
order preventing the Unions and their representatives from being present for any
purpose inside or outside Escondido Medical Center, other than in the employee
parking lot. Palomar’s prayer for relief is egregiously overbroad in that it would totally
ban the Unions from Escondido Medical Center, even for contractually enumerated and
statutorily protected purposes. This prayer for relief has no reasonable basis and
grossly infringes on MMBA-protected rights.
Palomar did not have any reasonable basis to believe that the Unions had
trespassed or engaged in unlawful picketing, or to seek a total ban of the Unions from
Escondido Medical Center for any and all purposes. The Unions thus have proven the
first element for interference via litigation under Bill Johnson’s.24
24 The Unions also argue that the ALJ erred in failing to address whether the
MMBA preempts Palomar’s Lawsuit as part of assessing whether the Lawsuit had a
reasonable basis. The proposed decision noted that “as the Unions do not argue that
the Lawsuit lacks any reasonable basis or was filed for an unlawful purpose because it
is preempted by the MMBA, the preemption issue need not be addressed further and
is therefore ignored below.” (Emphasis in original.) On exceptions, the Unions assert
that their post-hearing brief did indeed raise this argument. We agree that the Unions
raised this issue clearly enough that we are not excused from addressing it for that
reason. However, having found ante that the Unions established that each part of
Palomar’s Lawsuit lacked a reasonable basis for other reasons, we decline to address
this argument further as it could have no impact on the outcome. (See City of San
Ramon, supra, PERB Decision No. 2571-M, p. 5.)

53
ii. 	Unlawful Purpose
The Unions also established that Palomar filed its Lawsuit for an “unlawful
purpose” (OE3, supra, PERB Decision No, 2782-M, p. 8) or with a “[r]etaliatory motive”
(Bill Johnson’s, supra, 461 U.S. at pp. 748-749). Palomar’s Memorandum of Points and
Authorities in Support of Application for TRO and Motion for OSC described the Unions’
alleged conduct at issue in the Lawsuit in part as follows:
“Defendants, through their agents, have initiated picketing
activity on PCME property. The activity started around
April 5, 2022. . . . Defendant employees have stood outside
[Escondido Medical Center]’s main entrance handing out
flyers to individuals entering and exiting the facility, which
disparage Palomar Health. . . . [Escondido Medical Center]
security has observed these union representatives on the
[Escondido Medical Center] premises outside the main lobby
entrance on multiple occasions, including but not limited to
April 15, 2022, April 18, 2022, April 19, 2022, April 20, 2022,
April 29, 2022, and May 2, 2022. . . . These union
representatives are impeding the entrance and exit of
everyone seeking to ingress or egress from [Escondido
Medical Center]. . . .”
(Citations omitted.)
But at hearing in this matter, Palomar marshaled no credible evidence that “union
representatives [were] impeding the entrance and exit of everyone”—or, indeed,
anyone—“seeking to ingress or egress from [Escondido Medical Center].” Palomar’s
witnesses could not point to any example where this was the case and instead repeated
the conclusory allegations Palomar made in the Lawsuit. Palomar also fails to identify
any photograph that shows union representatives impeding such ingress or egress,
despite its orders to security to photograph leafletting union representatives and despite
39 photographs taken by security of leafletting union representatives. None of these

54
photos show any union representative impeding ingress or egress. We concur with the
ALJ’s conclusion that given the record evidence, preventing union representatives from
impeding the entrance and exit was not Palomar’s motive, or at least not its main
motive, for pursuing the Lawsuit.
Palomar also contends it was motivated to file the Lawsuit because “Defendant
employees have stood outside [Escondido Medical Center]’s main entrance handing out
flyers to individuals entering and exiting the facility, which disparage Palomar Health.”
That asserted justification echoes Washburn’s May 1 e-mail message to Vivanco that
“[d]istributing literature on Palomar Health premises with intent to demean Palomar
Health and its leadership and elevate disruption violates both our policy and union
contract.” In the absence of any other stated purpose or motivation for which there
would be a reasonable basis, Palomar’s remaining justification for pursuing the Lawsuit
is because union representatives handed out flyers to individuals entering and exiting
Escondido Medical Center that, in its view, “disparage[d]” or “demean[ed]” Palomar and
its leadership. But because, as we found ante at pages 13-14 and footnote 11, Palomar
failed to prove or even argue that these flyers lost the protection of the MMBA, we
conclude that Palomar filed the Lawsuit for the unlawful purpose of preventing the
Unions from distributing MMBA-protected flyers.
This conclusion finds further support in the fact that Palomar never objected to
the Unions’ leafletting and tabling before Spring 2022. While the prior actions were more
sporadic, the salient difference between the Unions’ tabling and leafletting that occurred
before March 2022 and that which occurred after and became the target of Palomar’s
Lawsuit, is that the Spring 2022 tabling and leafletting were specifically related to a

55
potential strike; one of the Unions’ main goals was to provide employees with “strike
education” and urge them to pledge to vote yes for a strike, if a strike vote was called.
The ALJ concluded that this difference explains why Palomar did not act to prevent
leafletting and tabling in the past but did so once the Unions were gearing up for a strike
and were reaching out to their members to secure support. Palomar did not except to
the ALJ’s conclusion that Palomar filed the Lawsuit for the unlawful purpose of
interfering with the Unions’ MMBA-protected strike preparation, and we find ample
support in the record for this inference.
The Unions met their burden of showing that Palomar’s Lawsuit was without any
reasonable basis and for an unlawful purpose. (See OE3, supra, PERB Decision
No. 2782-M, p. 8.) Palomar’s Lawsuit thus tended to or did result in harm to employee
and union rights under the MMBA. The injunction sought by the Lawsuit, which would
prohibit union representatives from being present anywhere, and for any purpose, inside
and outside of Escondido Medical Center, except for the remote and now-defunct
employee parking lot, would severely hamper in-person communication between
bargaining unit members and the Unions, including the receipt and distribution of union-
related information via leafletting and tabling, and additionally infringe on the purposes
for union presence on Palomar property expressly enumerated in the CBAs, i.e.,
ensuring compliance with the CBAs, adjusting grievances, and updating union bulletin
boards. In addition, the sought injunction would prevent the Unions from engaging in the
myriad other activities that they historically have engaged in at Escondido Medical
Center, without objection from Palomar, such as rounding, attending Weingarten and
grievance meetings, and attending Professional Practice Committee meetings.

56
Moreover, pursuing trespass and unlawful picketing claims in superior court to obtain
such an injunction tends to discourage union members and union representatives from
engaging in protected activities. Regardless of the level of harm threatened or incurred,
Palomar has mounted no viable affirmative defense.
For all the foregoing reasons, we conclude that by pursuing the Lawsuit, Palomar
interfered with protected rights guaranteed by the MMBA, in violation of MMBA
sections 3506, and 3506.5, subdivisions (a) and (b).
iii. 	Preemption
The Unions’ exceptions also urge us to find that Palomar’s Lawsuit interfered
with MMBA-protected rights because it was preempted. The Unions argue that we
should adopt two related aspects of federal law to reach the following conclusions:
(1) Palomar’s lawsuit was preempted as of the moment OGC issued a complaint,
because the complaint assured that PERB would resolve the legality of Palomar’s
access restrictions, whether they constituted a unilateral change, and whether the
MMBA protected all or part of the Unions’ activities; and (2) continuing to pursue a
preempted lawsuit for more than seven days after OGC has issued a complaint (rather
than dismissing it or agreeing to have it stayed) is conduct that falls outside the Bill
Johnson’s framework and automatically constitutes interference.25 (See 2 Higgins, The
Developing Labor Law (8th ed. 2022) sec. 6.II.B.3.d.(2), citing Can-Am Plumbing
v. National Labor Relations Bd. (D.C. Cir. 2003) 321 F.3d 145, 151 and Loehmann’s
25 In Loehmann’s Plaza (1991) 305 NLRB 663, the NLRB required an employer
to prove it had taken affirmative action to stay a state court proceeding and/or to have
an injunction withdrawn within seven days from when the NLRB’s administrative
complaint issued. (Id. at p. 671.)

57
Plaza, supra, 305 NLRB 663, 669, aff’d in part and rev’d in part on other grounds by
Loehmann’s Plaza (1995) 316 NLRB 109.)
The Unions thereby claim Palomar must reimburse their litigation expenses in
defending the Lawsuit beginning on the eighth day after OGC issued a complaint in this
matter. But as discussed below, the Unions are in fact entitled to reimbursement of
litigation expenses from the outset of the Lawsuit, because the entirety of Palomar’s
Lawsuit meets the standard for interference under the traditional Bill Johnson’s analysis.
Accordingly, the Unions’ arguments regarding preemption would have no impact on the
outcome and we need not resolve them. (See City of San Ramon, supra, PERB
Decision No. 2571-M, p. 5.) However, we briefly review the preemption doctrine,
including the Court of Appeal decision finding the Lawsuit to be preempted, to explain
the current state of the law relative to determining the point in time at which a lawsuit is
preempted.
PERB’s jurisdiction preempts a court’s jurisdiction if the conduct at issue is
“arguably protected” or “arguably prohibited” by a labor relations statute administered by
PERB and the controversy presented to the state court “may fairly be termed the same”
as that presented to PERB. (El Rancho Unified School Dist. v. National Education Assn.
(1983) 33 Cal.3d 946, 953-960 (El Rancho); accord Pittsburg Unified School Dist.
v. California School Employees Assn. (1985) 166 Cal.App.3d 875, 887.) Preemption
prevents and avoids “‘conflicting adjudications which may interfere with [a labor]
board’s ability to carry out its statutory role.’” (El Rancho, supra, 33 Cal.3d at
pp. 960-961, citing Kaplan’s Fruit & Produce Co. v. Superior Court (1979) 26 Cal.3d
60, 75.) “In deciding whether something is an unfair labor practice, and whether PERB

58
consequently has exclusive jurisdiction to hear a matter (Gov. Code, § 3563.2), [the
courts] consider the underlying conduct on which the suit is based rather than a
superficial reading of the pleadings.” (Teamsters Local 2010 v. Regents of University
of California (2019) 40 Cal.App.5th 659, 669.)
In its recent decision, the Court of Appeal articulated its reasons for finding that
Palomar’s Lawsuit is preempted by the MMBA, and properly adjudicated at PERB:
“[t]he conduct at issue, i.e. the alleged trespass by CNA and
CHEU representatives within [Escondido Medical Center]
and leafletting at the hospital’s entrance, will be adjudicated
by PERB as either protected or unprotected by the parties’
agreement and the MMBA. This is the identical question
presented before the trial court in this litigation. There is
unquestionably a risk of conflicting decisions in these two
competing forums. Because the questions are the same, we
agree with the unions that PERB has exclusive jurisdiction of
this dispute.”
(Palomar Health v. National Nurses United et al., supra, 97 Cal.App.5th 1189, 1208.)
The Unions argue that PERB should clarify that the point at which preemption
occurs coincides with OGC’s issuance of a complaint. As the NLRB has explained, the
United States Supreme Court in Sears, Roebuck & Co. v. San Diego County District
Council of Carpenters (1978) 436 U.S. 180 (Sears) issued a split decision on how to
determine when preemption occurs under the “arguably protected” preemption prong in
private sector labor relations cases:
“In a concurrence, Justice Blackmun asserted the view that
preemption operates when an unfair labor practice charge
has been filed. In a separate concurrence, Justice Powell
dated preemption at the time the General Counsel issues a
complaint. The three dissenting justices, Justices Brennan,
Stewart, and Marshall, found preemption even in the
absence of a charge. In sum, reading the majority opinion

59
with Justice Powell’s concurrence, Sears seems to indicate
that the state suit is preempted at least by the time the
General Counsel has acted to place the issue before the
Board by issuing a complaint.”
(Loehmann’s Plaza, supra, 305 NLRB at pp. 669-670.)
Two years after Loehmann’s Plaza, the D.C. Circuit held that under the “arguably
protected” prong, “preemption is triggered by the issuance of a complaint by the
General Counsel, if not earlier.” (Davis Supermarkets v. NLRB (D.C. Cir. 1993) 2 F.3d
1162, 1179.) California precedent generally interprets Sears in the same manner as the
D.C. Circuit. (Hillhaven Oakland Nursing etc. Center v. Health Care Workers Union,
Local 250 (1996) 41 Cal.App.4th 846, 859 & fn. 9; accord Wal-Mart Stores, Inc. v.
United Food & Commercial Workers Internat. Union (2016) 4 Cal.App.5th 194, 215-217;
Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1815.) In contrast,
under the “arguably prohibited” preemption prong, it may be the employer’s decision
whether to file an unfair practice charge, and precedent is clear that the employer
cannot avoid the preclusive effect of PERB jurisdiction by deciding to file in court rather
than at PERB. (City of San Jose v. Operating Engineers Local Union No. 3 (2010)
49 Cal.4th 597, 604-611 [reaffirming that PERB jurisdiction preempts conduct that is
either arguably protected or arguably prohibited, and requiring employer faced with
threatened strike by essential employees to pursue an injunction strictly through PERB
processes in cases where union provides at least 72 hours’ notice of strike].)
In Palomar Health v. National Nurses United, supra, 97 Cal.App.5th 1189, the
court found it relevant that PERB had issued a complaint in this matter, but the court did
not decide the earliest point at which the Lawsuit was preempted. (Id. at pp. 1206-
1210.) It is unclear if the court left that issue open because it would not impact the

60
ultimate order of dismissal, because the court accounted for the possibility that Justices
Brennan, Stewart, and Marshall (or alternatively Justice Blackmun) were correct in
Sears, or because the “arguably prohibited” prong applies given that Palomar could
have filed a PERB charge alleging that the Unions committed a unilateral change by
allegedly violating contractual access provisions. In these circumstances, we decline the
Unions’ invitation to decide what the Court left open, especially as it would not impact
the remedy given that the entire Lawsuit falls within the traditional Bill Johnson’s
principles. (See ante at pp. 48-56.)
V. 	Remedy
The Legislature has vested PERB with broad authority to decide what remedies
are necessary to effectuate the purposes and policies of the MMBA and the other acts
we enforce. (MMBA, § 3509, subd. (b); Mt. San Antonio Community College Dist.
v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189.) PERB
remedies must serve the dual purposes of compensating for the harm a violation
causes and deterring further violations. (County of San Joaquin v. Public Employment
Relations Bd. (2022) 82 Cal.App.5th 1053, 1068; Bellflower Unified School District
(2022) PERB Decision No. 2544a, p. 26.) While remedial orders must rely to a degree
on estimates, that is preferable to allowing uncertainty caused by unlawful conduct to
leave an unfair practice without any effective remedy. (Bellflower Unified School
District, supra, PERB Decision No. 2796, p. 20; Lodi Unified School District, supra,
PERB Decision No. 2723, p. 21, fn. 13; City of Pasadena (2014) PERB Order
No. Ad-406-M, pp. 8, 13-14, 26-27.)

61
The ALJ’s proposed remedy contained three main components. First, that
Palomar cease and desist from its unlawful conduct, including: (1) maintaining and
enforcing the relevant section of its Solicitation & Distribution Policy against the
Unions and their bargaining unit members; (2) engaging in unlawful surveillance, and
(3) prosecuting the cause of action for unlawful picketing and seeking to have the
Unions and their representatives enjoined from being present anywhere inside or
outside Escondido Medical Center other than the employee parking lot. Next, that
Palomar make the Unions whole for its unlawful conduct, including but not limited to:
(1) reasonable legal expenses incurred in defending against the cause of action for
unlawful picketing in the Lawsuit, and that part of the prayer for relief therein seeking
to have the Unions and their representatives enjoined from being present anywhere
inside or outside Escondido Medical Center other than the employee parking lot; and
(2) reasonable legal expenses, if any, incurred in establishing the value of this award
in compliance proceedings following the Unions’ initial papers documenting their
estimate of reimbursable legal expenses. And finally, that Palomar post a notice of its
violations.
Both the Unions and Palomar except to aspects of the remedy. The Unions
seek a remedial order consistent with its arguments for additional violations,
clarification that the order’s make-whole provisions include bargaining costs and other
identified losses in addition to legal fees and costs related to Palomar’s Lawsuit, and
litigation sanctions for Palomar’s misleading conduct. Palomar asserts that the ALJ’s
remedy violates the separation of powers, improperly awarded attorney fees and

62
costs, is overly punitive because it employs the lodestar method, and improperly
prevents Palomar from objecting to the Unions’ fee calculations.
While herein we adjust the remedial order to account for the additional
violations we sustain and the Court of Appeal’s resolution of the Lawsuit, to clarify the
scope of the make-whole remedy, and to conform to standard Board practice, we
otherwise affirm the ALJ’s proposed remedies.26
A. Remedies for Additional Violations
In addition to tailoring the cease-and-desist order and make-whole remedy to
encompass the entire Lawsuit and account for subsequent developments in the
litigation, we order standard remedies to rectify the unilateral change claim
substantiated ante. PERB’s standard remedy for an employer’s unlawful unilateral
change is a cease-and-desist order, a notice posting, restoration of the status quo
ante, and appropriate make-whole relief including back pay and benefits with interest.
(Pasadena Area Community College District (2015) PERB Decision No. 2444,
pp. 23-24.) We order Palomar to cease and desist from (1) unilaterally modifying its
access policies without providing the Unions with notice or an opportunity to meet and
confer in good faith, and (2) failing or refusing to bargain in good faith with the Unions
as required under the MMBA. We also order Palomar, upon the request of CNA,
26 We decline to address in detail Palomar’s exception that the proposed
decision’s order violates the separation of powers by requiring Palomar to rescind an
approved policy, because it rests on a faulty premise. The proposed decision’s order
only requires that Palomar cease and desist enforcing the relevant portion of
Palomar’s Solicitation & Distribution policy against the Unions and their bargaining unit
members, and the Unions have not sought via exceptions to modify this portion of the
order to include rescission.

63
CHEU, or both, to bargain in good faith with the requesting Union(s) over changes to
Palomar’s access policies. As we explain below, the Unions shall have the opportunity
to prove and recover in compliance proceedings any losses which flow from Palomar’s
unfair conduct. Such recovery shall include interest compounded on a daily basis. (El
Centro Regional Medical Center (2024) PERB Decision No. 2890-M, p. 25.)
B. Make-Whole Relief and Legal Expenses
PERB employs two separate standards for determining whether to award legal
expenses. (SCUSD, supra, PERB Decision No. 2749, p. 11.) One applies when PERB
must determine whether to award a party legal expenses because of the opposing
party’s sanctionable conduct in litigating the same case before PERB. (Ibid.) That
standard, which is akin to Rule 11 of the Federal Rules of Civil Procedure, provides
that PERB should make such an award if the offending party maintained a claim,
defense or motion, or engaged in another action or tactic, which was without arguable
merit and pursued in bad faith. (Ibid., citing Bellflower Unified School District (2019)
PERB Order No. Ad-475a, p. 4; City of Palo Alto (2019) PERB Decision No. 2664-M,
p. 7 (Palo Alto); Lake Elsinore Unified School District (2018) PERB Order
No. Ad-446a, p. 5; City of Alhambra (2009) PERB Decision No. 2036-M, p. 19; City of
Alhambra (2009) PERB Decision No. 2037-M, p. 2.) But a different standard applies
when a party seeks to be made whole for legal expenses it reasonably incurred in a
separate proceeding to remedy, lessen, or stave off the impacts of the other party’s
unfair practice. The Board has not required a Rule 11-type showing in such cases and
has instead treated legal expenses the same as medical expenses, lost pay, lost staff

64
time, or any other loss. (SCUSD, supra, PERB Decision No. 2749, p. 11-12, citing
Omnitrans, supra, PERB Decision No. 2030-M, p. 30.)
The ALJ properly concluded that a make-whole award for the Unions must
include legal expenses under the second standard, because the Unions would not
have incurred the costs of defending against the Lawsuit absent Palomar’s unlawful
conduct, viz. interfering with protected rights by pursuing the Lawsuit.27 Palomar’s
arguments that the ALJ’s proposed remedy is overly punitive because it clarifies that
legal expenses should be calculated by the lodestar rate are not well taken. As the
Board articulated in SCUSD, “in general, the most appropriate methodology [for
calculating legal expenses] will be a lodestar approach that focuses on hours
reasonably incurred and does not automatically reduce hourly market rates for
attorneys who work in a nonprofit, government agency, or in-house legal department
and/or who were paid a flat salary, charged discounted rates, or never billed their
client.” (SCUSD, supra, PERB Decision No. 2749, p. 18.) The use of in-house legal
services to defend against Palomar’s Lawsuit does not alter the fact that the lodestar
method remains the most accepted approach—though modifications to the lodestar
figure can be ordered as warranted in particular cases—for all the reasons set forth in
SCUSD, supra, PERB Decision No. 2749, pages 16-19 & footnotes 9-10.28 To the
27 As the Court of Appeal has ordered Palomar to reimburse Defendants for
certain costs on appeal, our make-whole order for legal expenses covers the Unions’
legal expenses not already reimbursed by Palomar.
28 Likewise, the ALJ’s proposed order that legal expenses include those
“incurred in establishing the value of [the] award in compliance proceedings following
the [Unions’] initial papers documenting [their] estimate of reimbursable legal
expenses” is consistent with Board precedent. (SCUSD, supra, PERB Decision

65
extent that the Unions can show in compliance proceedings that these legal expenses
included the work of non-attorneys, they may do so. (Id. at pp. 14-15.)
No. 2749, p. 21.) Normally, “compliance proceedings to establish estimated
reasonable legal expenses should involve review of sworn declarations and should not
lead to protracted litigation.” (Id. at pp. 19-20; Bellflower Unified School District, supra,
PERB Decision No. 2544a, p. 51 & fn. 32.)
The ALJ’s broad make-whole relief proposes that Palomar shall make the
Unions whole “for losses they suffered as a result of Palomar Health’s unlawful
conduct, including but not limited to” the specified legal expenses. An unfair practice
finding creates a presumption that employees suffered some financial loss as a result
of the employer’s unlawful conduct. (Mt. San Jacinto Community College District
(2023) PERB Decision No. 2865, p. 40, citing Bellflower Unified School District (2019)
PERB Order No. Ad-475, p. 10; Desert Sands Unified School District (2010) PERB
Decision No. 2092, pp. 31-32.) Consistent with the presumption, it is appropriate to
give the Unions an opportunity to establish in compliance proceedings that they
suffered losses from Palomar’s proven unlawful conduct, that is, Palomar’s
maintaining an unreasonable access rule against the Unions, making an unlawful
unilateral change, and unlawfully surveilling the Unions and their bargaining unit
members, in addition to its Lawsuit.
To establish compensable harm, a party need only show by a preponderance of
the evidence that the offending party’s conduct caused a harm and that it is
reasonably feasible to estimate the financial impact. (City and County of San
Francisco (2023) PERB Decision No. 2858-M, pp. 15-16, citing Alliance Judy Ivie
Burton Technology Academy High School et al. (2022) PERB Decision No. 2809,

66
pp. 14, 31-32; Oxnard Union High School District (2022) PERB Decision No. 2803,
p. 3; County of Santa Clara (2021) PERB Decision No. 2799-M, p. 28, fn. 14; Regents
of the University of California (2021) PERB Decision No. 2755-H, p. 56; SCUSD,
supra, PERB Decision No. 2749, p. 15; CCSF, supra, PERB Decision No. 2691-M,
p. 51, fn. 32; Palo Alto, supra, PERB Decision No. 2664-M, p. 8, fn. 6.) However,
unlike in City and County of San Francisco, supra, PERB Decision No. 2858-M, here
Palomar’s proven violations do not suggest that its unlawful conduct contributed to a
quantifiable delay in bargaining; indeed, the parties here settled their contract disputes
in June 2022, only a short period of time after the events giving rise to the underlying
unfair practice charge. To the extent the Unions now request bargaining flowing from
the unilateral change allegations, such bargaining is merely a stand-in for bargaining
that could or should have occurred prior to Palomar deviating from the status quo. On
these facts, we do not find a cognizable harm suggesting bargaining was prolonged or
impacted specifically by Palomar’s unlawful conduct in this case, and thus the broad
make-whole relief ordered to remedy the identified violations does not include any set
period of bargaining costs. On the other hand, if the Unions establish by a
preponderance of the evidence that they incurred extra costs to reach the public or
bargaining unit members due to Palomar’s violations, or otherwise had to use more
staff or incur extra costs because of those violations, that shall be compensable.
We do not sustain the Unions’ exception that it is appropriate to award legal
expenses the Unions incurred during the course of this PERB proceeding as a
litigation sanction for Palomar’s conduct prosecuting this matter. To obtain
reimbursement of attorney fees or other expenses as a litigation sanction, the moving

67
party must demonstrate that the opposing party’s claim, defense, motion, or other
action or tactic was “without arguable merit” and pursued in “bad faith.” (Palo Alto,
supra, PERB Decision No. 2664-M, p. 7.) To determine whether a claim, defense,
motion, or other action is frivolous, we examine whether it is so manifestly erroneous
that no prudent representative would have filed or maintained it. (Ibid., citing Lake
Elsinore Unified School District, supra, PERB Order No. Ad-446a, p. 5, and cases
cited therein.) To determine whether a party acted with subjective bad faith, we
examine whether the party’s conduct was dilatory, vexatious, or otherwise an abuse of
process, and we may infer such intent from circumstantial evidence. (Ibid., citing City
of Alhambra, supra, PERB Decision No. 2036-M, p. 19.) The Unions argue for
litigation sanctions on the basis that the proposed decision found Palomar’s
issue-preclusion argument, made in its Motions to Strike and again in its post-hearing
brief, were misleading. Palomar does not repeat its issue preclusion arguments, or
their misleading foundations, in its exceptions. Setting aside whether Palomar’s issue
preclusion argument before the ALJ was without arguable merit, we find insufficient
evidence to conclude its conduct meets the criteria for bad faith, including because
Palomar did not repeat its issue preclusion argument on exceptions to the Board.
ORDER
Based upon the foregoing factual findings and legal analysis, and the entire
record, the Public Employment Relations Board (PERB) finds that Palomar Health
(Palomar) violated the Meyers-Milias-Brown Act (MMBA), Government Code section
3500 et seq. via the following conduct. First, Palomar maintained and enforced an
unreasonable access rule against California Nurses Association (CNA) and

68
Caregivers & Healthcare Employees Union (CHEU) (collectively, Unions). Second,
Palomar unilaterally changed established past practices on access, adopted a newly
created access policy, and/or applied or enforced existing policy in a new way, without
affording the Unions notice and an opportunity to meet and confer in good faith to
impasse or agreement. Third, Palomar interfered with protected union and employee
rights by surveilling protected activity and pursuing a lawsuit in San Diego County
Superior Court (Lawsuit) that inter alia charged the Unions with trespassing and
unlawful picketing and sought to have the Unions and their representatives enjoined
from being present anywhere inside or outside its facility located at 2185 Citracado
Parkway, Escondido, California 92029 (Escondido Medical Center), other than the
employee parking lot.
Pursuant to section 3509 of the Government Code, it hereby is ORDERED that
Palomar, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Maintaining and enforcing against the Unions Section III.E of
Palomar’s “Procedure: Solicitation and Distribution of Literature.”
2. 	Unilaterally modifying established past practices on access,
adopting a newly created access policy, or enforcing existing policy in a new way,
without providing the Unions with notice and an opportunity to meet and confer in
good faith.
3. 	Failing or refusing to bargain in good faith with the Unions as
required under the MMBA.
4. 	Unlawful surveillance of union activities.

69
5. 	Prosecuting the cause of actions for trespass and unlawful
picketing in Palomar Health v. National Nurses United et al., San Diego County
Superior Court Case No. 37-2022-00017624-CU-MC-NC (Lawsuit), seeking to have
the Unions and their representatives enjoined from being present anywhere inside or
outside Escondido Medical Center other than the employee parking lot, or otherwise
pursuing court claims that interfere with MMBA-protected rights.
6. 	Interfering with the exercise of employee rights guaranteed by the
MMBA.
7. 	Denying the Unions the rights guaranteed to them by the MMBA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Upon request by CNA and/or CHEU, bargain in good faith with the
requesting Union(s) over changes to Palomar’s access policies.
2. 	Make the Unions whole for losses they suffered as a result of
Palomar’s unlawful conduct, including but not limited to: (a) reasonable legal expenses
incurred in defending against the Lawsuit, less any legal expenses already reimbursed
by Palomar; and (b) reasonable legal expenses, if any, incurred in establishing the
value of this award in compliance proceedings following the Unions’ initial papers
documenting their estimate of reimbursable legal expenses. This award shall include
interest accrued to the date of payment at an annual rate of seven percent,
compounded daily.
3. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all work locations where notices to employees in the bargaining units

70
represented by the Unions at Palomar are posted, copies of the Notice attached
hereto as an Appendix. The Notice must be signed by an authorized agent of Palomar,
indicating that it will comply with the terms of this Order. Such posting shall be
maintained for a period of 30 consecutive workdays. Palomar shall take reasonable
steps to ensure that the Notice is not altered, defaced, or covered with any other
material. In addition to physically posting the Notice, Palomar shall communicate it by
electronic message, intranet, internet site, and other electronic means Palomar uses
to communicate with employees.29
4. 	Notify OGC of the actions Palomar has taken to follow this Order
by providing written reports as directed by OGC and concurrently serving such reports
on CNA and CHEU.
Members Krantz and Nazarian joined in this Decision.
29 Either party may ask PERB’s Office of the General Counsel (OGC) to alter or
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC shall
solicit input from all parties and, if warranted, provide amended instructions to ensure
adequate notice.

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. LA-CE-1581-M, California Nurses
Association and Caregivers & Healthcare Employees Union v. Palomar Health, in
which all parties had the right to participate, the Public Employment Relations Board
found that the Palomar Health (Palomar) violated the Meyers-Milias-Brown Act
(MMBA), Government Code section 3500 et seq by: (1) maintaining and enforcing an
unreasonable access rule; (2) unilaterally changing established past practices on
access, adopting a newly created access policy, and/or applying or enforcing existing
policy in a new way, without affording the Unions notice and an opportunity to meet
and confer in good faith to impasse or agreement; (3) unlawfully surveilling protected
activity; and (4) pursuing a lawsuit that charged California Nurses Association (CNA)
and Caregivers & Healthcare Employees Union (CHEU) (collectively, Unions) with
trespassing and unlawful picketing and sought to have the Unions and their
representatives enjoined from being present anywhere inside or outside its facility
located at 2185 Citracado Parkway, Escondido, California 92029 (Escondido Medical
Center).
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Maintaining and enforcing against the Unions Section III.E of
Palomar’s “Procedure: Solicitation and Distribution of Literature.”
2. 	Unilaterally modifying established past practices on access,
adopting a newly created access policy, or enforcing existing policy in a new way,
without providing the Unions with notice and an opportunity to meet and confer in
good faith.
3. 	Failing or refusing to bargain in good faith with the Unions as
required under the MMBA.
4. 	Unlawful surveillance of union activities.
5. 	Prosecuting the causes of action for trespass and unlawful
picketing in Palomar Health v. National Nurses United et al., San Diego County
Superior Court Case No. 37-2022-00017624-CU-MC-NC (Lawsuit), seeking to have
the Unions and their representatives enjoined from being present anywhere inside or

2
outside Escondido Medical Center other than the employee parking lot, or otherwise
pursuing court claims that interfere with MMBA-protected rights.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Upon request by CNA and/or CHEU, bargain in good faith with the
requesting Union(s) over changes to Palomar’s access policies.
2. 	Make the Unions whole for losses they suffered as a result of
Palomar’s unlawful conduct, including but not limited to: (a) reasonable legal expenses
incurred in defending against the Lawsuit, less any legal expenses already reimbursed
by Palomar; and (b) reasonable legal expenses, if any, incurred in establishing the
value of this award in compliance proceedings following the Unions’ initial papers
documenting their estimate of reimbursable legal expenses. This award shall include
interest accrued to the date of payment at an annual rate of seven percent,
compounded daily.
Dated: _____________________ 	Palomar Health
By: _________________________________
Authorized Agent
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