* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara (PERB 2900M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 521,
Charging Party,
v.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-1859-M
PERB Decision No. 2900-M
April 23, 2024
Appearances: Weinberg, Roger & Rosenfeld by Kerianne R. Steele and Shane Reed,
Attorneys, for Service Employees International Union Local 521; Nancy J. Clark and
Raphael N. Rajendra, Attorneys, for County of Santa Clara.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on both parties’ exceptions to a proposed decision of an
administrative law judge (ALJ). The complaint alleges that Respondent County of
Santa Clara violated the Meyers-Milias-Brown Act (MMBA) by refusing to meet and
confer with Charging Party Service Employees International Union Local 521 (SEIU).1
Specifically, SEIU claims the County unlawfully refused to bargain before its Board of
1 The MMBA is codified at Government Code section 3500 et seq. Undesignated
statutory citations refer to the Government Code. To “meet and confer” under the
MMBA means to bargain. (County of Santa Clara (2021) PERB Decision No. 2799-M,
p. 15, fn. 9.) We use the term “bargain” except when quoting sources that use the
phrase “meet and confer.”
* * * JUDICIAL APPEAL PENDING * * *

2
Supervisors (BOS) approved the County medical staff organization’s proposed bylaw
revisions, which included new standards for SEIU-represented physician assistants
(PAs) to receive or maintain practice privileges at County hospitals.2
The ALJ found the County did not have a duty to bargain over the BOS decision
to approve the bylaw revisions. However, the ALJ found the County violated its duty to
bargain with SEIU, prior to the BOS vote, over the decision’s effects on terms and
conditions of employment. Having considered the issues de novo, we affirm in part
and reverse in part. As we proceed to explain, the County violated its bargaining
duties both with respect to the BOS decision and the effects thereof. Finally,
addressing SEIU’s exceptions on remedial issues, we reject SEIU’s suggested change
to PERB precedent on litigation expenses, but we clarify make-whole principles
relevant to determining damages for bargaining and representation costs.
FACTUAL AND PROCEDURAL BACKGROUND
When this dispute arose, SEIU and the County were parties to a memorandum
of agreement (MOA) effective from March 2020 through June 2023. The MOA covered
eight County bargaining units, including the Administrative, Professional, and
Technical (APT) unit. Through the MOA’s recognition clause, the County recognized
SEIU as the exclusive representative of all APT unit employees, including PAs.
I. 	The County’s Hospital System and its Medical Staff Organization
The County owns and operates Santa Clara Valley Healthcare (SCVH), which
includes three acute care hospitals and various outpatient clinics. The County BOS
2 “Practice privileges” means permission to render services to patients.

3
serves as the governing board of SCVH. The BOS, as part of its overall administrative
and professional responsibility for SCVH under state and federal law (Health & Saf.
Code, § 1250, subd. (a); 42 U.S.C. § 482.12), must “take all reasonable steps” to
assure compliance with the MMBA and other applicable laws. (Cal. Code Regs., tit. 22,
§ 70701, subd. (a)(5).)
California law requires SCVH to have an “organized medical staff,” which means
that acute care hospital physicians, dentists, podiatrists, and clinical psychologists have
certain self-government rights through their medical staff organizations. (Health & Saf.
Code, §§ 1250, subd. (a), 32128, subd. (a); Bus. & Prof. Code, § 2282; Cal. Code
Regs., tit. 22, § 70701, subd. (a)(1)(F).) PAs have no voting rights in such
organizations. (Cal. Code Regs., §§ 70701, subd. (a)(1)(E), 70703, subd. (a)(1).)
A medical staff organization’s bylaws, rules or regulations must establish
criteria and standards for medical staff membership and practice privileges. (Bus. &
Prof. Code, § 2282.5, subd. (a)(1); Cal. Code Regs., tit. 22, § 70703, subd. (b).) Such
bylaws, rules, and regulations are subject to approval by the hospital’s governing board,
but the board may not unreasonably withhold approval. (Bus. & Prof. Code, § 2282.5,
subd. (a)(6); Cal. Code Regs., tit. 22, § 70701, subd. (a)(8).) Both the governing board
and the medical staff organization “shall act exclusively in the interest of maintaining
and enhancing quality patient care.” (Bus. & Prof. Code, § 809.05, subd. (d).)
In this decision, we refer to the SCVH medical staff organization as the
“Enterprise Medical Staff” (EMS) or, when quoting the parties, the “Medical Staff.” We
refer to its executive committee as the “Enterprise Medical Executive Committee”

4
(EMEC). The practice privilege criteria in the EMS bylaws apply to all medical
providers wishing to practice at SCVH, including PAs.
II. 	State Licensing Requirements for PAs
PAs are Allied Health Professionals (AHPs), which means they are
non-physicians who render services to patients pursuant to physician supervision.
(Cal. Code Regs., tit. 22, § 70706.1, subd. (b).) To practice in California, a PA must
hold a license from the Physician Assistant Board, a division of the California
Department of Consumer Affairs.
III. 	Standards for PAs to Receive or Maintain SCVH Practice Privileges as of 2020
Prior to the events giving rise to this dispute, the EMS bylaws stated that AHPs
were eligible for practice privileges at SCVH “if they hold a license, certificate or other
credentials in a category of AHPs that the Governing Body (after securing [EMEC]
comments) has identified as eligible, and only if the AHPs are professionally
competent and continuously meet the qualifications, standards and requirements set
forth in the Medical Staff Bylaws and Rules.”
IV. 	The Parties’ 2019-2021 Grievance Proceedings Over Discipline Against a PA
In 2019, SEIU filed a grievance on behalf of a County PA named Susan Irizarry.
The grievance challenged the County’s decision to place Irizarry on unpaid leave for
allegedly failing to maintain a required professional certification. An arbitrator
sustained SEIU’s grievance in a March 2021 decision. Since that decision is now final,
and the parties were the same as they are in this case, we accept the arbitrator’s
relevant factual findings as true. (Code Civ. Proc., § 1287.6 [“An award that has not
been confirmed or vacated has the same force and effect as a contract in writing

5
between the parties to the arbitration”]; see also JPV I L.P. v. Koetting (2023) 88
Cal.App.5th 172, 192 [collecting cases on collateral estoppel effect of arbitration
decisions]; State of California (Correctional Health Care Services) (2024) PERB
Decision No. 2888-S, pp. 23-28 [discussing PERB’s application of collateral estoppel]
[judicial appeal pending].)
As relevant here, the arbitrator found as follows. When Irizarry began working in
SCVH’s surgery department in 2015, EMS granted her practice privileges. At that
time, she held both a license from the Physician Assistant Board and a certificate from
the National Commission on Certification of Physician Assistants (NCCPA). The
applicable renewal criteria for surgery privileges required a PA either to maintain
NCCPA certification or to complete 50 continuing education credits in a two-year
renewal cycle. Although Irizarry maintained her PA license at all relevant times, and
she completed at least 50 continuing education credits in the 2017-2019 renewal
cycle, pregnancy complications prevented her from obtaining additional credits she
would have needed to maintain her NCCPA certification at that time. On this basis, the
County placed her on unpaid leave. In the arbitration hearing, County Director of
Advanced Practice Karen Ketner testified that the County’s PA job description and the
EMS bylaws required Irizarry to maintain her NCCPA certification. However, the
arbitrator concluded this testimony was incorrect.3
3 The arbitrator found Ketner testified in an aspirational manner, as she had
repeatedly asked the County to require PAs to maintain NCCPA certification. The
arbitrator, noting that Ketner had not yet succeeded in establishing that requirement,
concluded that if “that requirement was necessary for patient safety standards,” then
“presumably there would have been a much more vigorous effort to approve it than the
languishing requests to do so for now three years.”

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V. 	SEIU’s Request to Bargain Before the BOS Voted on EMS Bylaw Revisions
On August 27, 2020, EMEC preliminarily approved substantial revisions to the
EMS bylaws. With respect to practice privileges for AHPs, the revisions included the
following language:
“An AHP is eligible for Practice Privileges in the hospital if
the AHP meets all of the following:
“(a) Holds a license and certificate, or other legal credential
in a category of AHPs in which the Governing Body has
identified as eligible to apply for Practice Privileges as
stated in these Bylaws:
“1. Any license and certification, or other legal credential
that is required for initial licensing or Practice Privileges
must be maintained at all times for an AHP to be eligible for
Practice Privileges.”
On August 31, 2020, the County sent SEIU a copy of the bylaw revisions EMEC
had preliminarily approved. On September 1, 2020, SEIU demanded to bargain and
requested relevant information. By e-mail dated September 9, 2020, County Labor
Relations Director Matthew Cottrell provided certain information SEIU had sought and
indicated that he “would like to set up a meeting with SEIU to explain how the medical
staff side of the hospital works.”
VI. 	The County’s Refusal to Bargain
On September 21, 2020, the parties met regarding the proposed bylaw
revisions. The County admitted that BOS approval was necessary for the revisions to
take effect. However, the County flatly refused to bargain with SEIU, instead insisting
that the meeting was purely informational. SEIU asked whether PAs who do not
qualify for practice privileges under the revised bylaws could work for the County, and

7
the County stated that they could not. SEIU noted that while the existing EMS bylaws
used disjunctive language in requiring AHPs to hold a license, certificate, or other
credentials, the proposed revisions would require AHPs to hold “a license and
certificate, or other legal credential” (emphasis supplied). SEIU asked whether the
County would grandfather in everyone who did not meet the new standard or
alternatively give them a grace period to obtain any newly required certificate. The
County stated that EMS, not the County, would make all such determinations.
After the parties met on September 21, 2020, SEIU repeatedly sought to
schedule further meetings in advance of the BOS vote on the bylaw revisions. But the
County never agreed to meet for a second time. Although Cottrell e-mailed SEIU on
October 7, 2020, stating that another County representative would schedule such a
meeting, no County representative ever followed through on this promise. SEIU tried
again to schedule additional meetings by sending an e-mail dated November 8, 2020,
but the County never responded. On December 15, 2020, the BOS approved the
revised EMS bylaws.
VII. 	The Parties’ Litigation History
When SEIU initiated this case in February 2021, the parties were already
litigating two related legal proceedings. First, as noted above, SEIU filed a grievance
in 2019 after the County placed Irizarry on unpaid leave. That proceeding ended with
the arbitrator’s March 2021 decision.

8
Also in 2019, SEIU filed an unfair practice charge based in part on the County’s
actions vis-à-vis Irizarry (Case No. SF-CE-1764-M). 	After SEIU amended the charge
multiple times, PERB’s Office of the General Counsel (OGC) issued a complaint
alleging (among other things) that the County’s actions regarding Irizarry unilaterally
changed policy by requiring PAs to maintain NCCPA certification as a condition of
continued employment.
4
On July 6, 2021, four months after the arbitrator sustained the Irizarry
grievance, the parties settled Case No. SF-CE-1764-M. The settlement agreement
required the County to post a notice stating as follows:
“We are providing this communication at the request of
SEIU Local 521 pursuant to a settlement agreement
reached through a process administered by the Public
Employment Relations Board.
“Pursuant to an Arbitration Decision in SEIU Grievance
No. 79989-2019 (SEIU Local 521/Susan Irizarry v County of
Santa Clara), the Arbitrator found that the County violated
the MOA by not permitting Ms. Irizarry to work ‘because of
a claimed requirement that [the County] continued to inform
PAs about that they maintain their NCCPA certification,’
and that ‘[t]here was no opportunity for the Union to meet
and confer on the imposition of such a requirement.’ Based
upon his findings, the Arbitrator ordered the County to
restore Ms. Irizarry’s lost wages and benefits and return
Ms. Irizarry to active employment.
“Last month, the County proposed to amend the Physician
Assistant job description. The County and SEIU Local 521
will meet and confer over the County’s proposal.”
4 We take administrative notice of the record in Case No. SF-CE-1764-M. (Lake
Elsinore Unified School District (2019) PERB Decision No. 2633, adopting proposed
decision at p. 3, fn. 2.)

9
As indicated in the above-quoted language, in June 2021 the County had
proposed to amend its PA job description, and SEIU then demanded to bargain over
the County’s proposal. The record does not reflect whether or how those negotiations
concluded. Nor is there any allegation in this case that either party violated the MMBA
while bargaining over the PA job description.
In January 2022, OGC issued a complaint in this case. The complaint alleges
the following facts regarding the parties’ interactions over the EMS bylaw revisions:
“5. On or about September 1, 2020, Charging Party
demanded to meet and confer regarding the proposed
revisions to the Bylaws.
“6. On or about September 21, 2020, Respondent met with
Charging Party to discuss the proposed revisions to the
Bylaws, but Respondent asserted that the meeting was
strictly informational and that it was not required to meet and
confer regarding the Bylaws.
“7. On or about October 1, October 7, and November 8,
2020, Charging Party requested to schedule a time to meet
and confer regarding the proposed revisions to the Bylaws,
but Respondent has made no attempt to schedule the
requested meet and confer.
“8. On or about December 15, 2020, Respondent’s Board of
Supervisors approved the proposed revisions to the Bylaws
concerning minimum qualifications for employment and the
minimum requirements to possess privileges to practice.
“9. Respondent engaged in the conduct described in
paragraph 8 without having negotiated with Charging Party
to agreement or through completion of negotiations
concerning the decision to implement the change in policy
and/or the effects of the change in policy.”

10
Prior to the formal hearing in this matter, the ALJ issued a ruling that limited the
scope of an SEIU subpoena. The ALJ then held the formal hearing in July 2022 and,
after receiving post-hearing briefs, issued the proposed decision in August 2023.
SEIU filed four exceptions to the proposed decision, challenging: (1) the ALJ’s
decision to limit the scope of an SEIU subpoena;5 (2) the ALJ’s conclusion that the
County had no decision bargaining obligation; (3) the ALJ’s failure to find that the
County and EMS have a single-employer and/or joint-employer relationship with PAs;
and (4) the ALJ’s proposed remedy.
The County filed a single cross-exception, which relates to the ALJ’s conclusion
that the County violated its effects bargaining obligation. In this exception, the County
objects to the scope of effects the ALJ found bargainable, but the County concedes
that the ALJ properly found a violation as to one category of effects. Specifically, the
County argues: “Had the ALJ limited her discussion about bargainable effects to
SEIU’s concern about what happens to a PA’s County employment if they do not
maintain NCCPA certification and therefore lose privileges, there would be no reason
for this cross-exception . . . The County does not dispute its obligation to meet and
confer now, at SEIU’s request, regarding SEIU-identified effects on County
employment of Medical Staff’s Bylaw revisions.” In contrast, the County’s exception
5 The ALJ found that records reflecting deliberation over revisions to the EMS
bylaws fell within the qualified internal collective bargaining protection explained in
Pasadena Area Community College District (2022) PERB Order No. Ad-490, pp. 6-18.
However, there is no cause to address this exception in the present procedural
posture, as SEIU prevailed even without obtaining all the records it sought.

11
asks us to conclude that the ALJ erred by including EMS’s “disciplinary and
investigatory processes” as bargainable effects.
DISCUSSION
In resolving exceptions, the Board applies a de novo standard of review. (City of
San Ramon (2018) PERB Decision No. 2571-M, p. 5.) However, the Board need not
address alleged errors that would not affect the outcome. (Ibid.)
Here, the only conduct alleged in the complaint is that the County refused to
bargain before its BOS approved the EMS bylaw revisions. SEIU did not seek to
amend the complaint to cover other conduct. Nor has SEIU at any point argued that
the ALJ or the Board should address other conduct pursuant to the unalleged
violations doctrine. Accordingly, we confine our liability analysis to whether the County
violated the MMBA when it refused to bargain before its BOS approved the EMS
bylaw revisions. Given the limited nature of the complaint’s claims, there is no cause
to decide whether EMS ever serves as a County agent in any respect or has an
employer-employee relationship with PAs, for collective bargaining purposes, pursuant
to the single-employer doctrine and/or the joint-employer doctrine.
Because the County concedes that it had a duty to bargain certain effects, and
that it refused to bargain, the main questions before us are: (1) whether the County
also had a decision bargaining duty (see Part I, post); (2) the scope of bargainable
effects (see Part II, post); and (3) the appropriate remedy (see Part III, post).
I. 	Decision Bargaining Analysis
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

12
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. (Kern County Hospital Authority v. Public
Employment Relations Bd. (2024) 100 Cal.App.5th 860, __, 2024 WL 1154291, at *10
(KCHA v. PERB); City and County of San Francisco (2022) PERB Decision
No. 2846-M, pp. 9-10 (San Francisco I).)
Moreover, where it is unclear whether the employer has a duty to bargain, it must
meet with the exclusive representative in good faith to clarify the extent to which all or
part of its contemplated change is subject to bargaining. (Healdsburg Union High
School District and Healdsburg Union School District/San Mateo City School District
(1984) PERB Decision No. 375, p. 10 [failure to seek clarification violates the duty to
negotiate in good faith]; accord City of Palo Alto v. Public Employment Relations Bd.
(2016) 5 Cal.App.5th 1271, 1309 [a party asserting it need not bargain over a topic has
a duty to meet with its counterpart, give its rationale, and enter into negotiations over
any aspects that, after clarification, fall within the scope of bargaining]; Cerritos
Community College District (2022) PERB Decision No. 2819, pp. 23-24, fn. 9 [employer
obligation to clarify]; State of California (Department of Personnel Administration) (1986)
PERB Decision No. 574-S, p. 16 [same].)

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In its submissions to the Board, the County does not contend that it bargained in
good faith to impasse or agreement. Nor does it claim that the bylaws revision on AHP
practice privileges lacked a generalized effect or continuing impact. Accordingly, we
consider the other elements of a unilateral change charge, beginning with whether the
BOS decision to approve a bylaw revision on AHP practice privileges fell within the
scope of representation, as that question lies at the heart of the parties’ dispute.6
A. 	Scope of Representation
Under the MMBA, the scope of representation “shall include all matters relating
to employment conditions and employer-employee relations, including, but not limited
to, wages, hours, and other terms and conditions of employment, except, however, that
the scope of representation shall not include consideration of the merits, necessity, or
organization of any service or activity provided by law or executive order.” (§ 3504.)
If precedent does not already delineate whether a matter falls within the scope of
representation, the first analytical step is to place the matter in one of three categories,
each with its own implications for the scope of representation: (1) “decisions that ‘have
only an indirect and attenuated impact on the employment relationship’ and thus are not
mandatory subjects of bargaining,” such as advertising, product design, and financing;
(2) “decisions directly defining the employment relationship, such as wages, workplace
rules, and the order of succession of layoffs and recalls,” which are “always mandatory
subjects of bargaining”; and (3) “decisions that directly affect employment, such as
6 There is no reason to analyze whether any other part of the bylaw revisions
fell within the scope of representation, as the complaint does not challenge any of the
other revisions.

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eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because
they involve ‘a change in the scope and direction of the enterprise’ or, in other words,
the employer’s ‘retained freedom to manage its affairs unrelated to employment.’” (San
Francisco I, supra, PERB Decision No. 2846-M, pp. 15-18, citing International Assn. of
Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011)
51 Cal.4th 259, 272-273 (Richmond Firefighters).)
Accordingly, the threshold question is to determine which of the three categories
described in Richmond Firefighters applies. (San Francisco I, supra, PERB Decision
No. 2846-M, pp. 17-18.) Further analysis is necessary only if a decision falls into the
third category. In that instance, PERB first determines whether the decision has “a
significant and adverse effect on the wages, hours, or working conditions of the
bargaining-unit employees” that “arises from the implementation of a fundamental
managerial or policy decision.” (Id. at p. 18, citing Claremont Police Officers Assn.
v. City of Claremont (2006) 39 Cal.4th 623, 638.) The “significant and adverse” standard
requires PERB to look at effects from the perspective of a reasonable employee.
(County of Sonoma (2023) PERB Decision No. 2772a-M, pp. 16-22.) If there are
significant and adverse effects, the remaining question is whether “the employer’s need
for unencumbered decision-making in managing its operations is outweighed by the
benefit to employer-employee relations of bargaining about the action in question.”
(Id. at pp. 14 & 23; San Francisco I, supra, pp. 18-19.)
For most types of decisions, we need not “reinvent the wheel” by applying the
Richmond Firefighters framework from scratch, because precedent establishes subject-
specific standards that show how the framework applies to a given topic. (County of

15
Santa Clara (2023) PERB Decision No. 2876-M, pp. 24-25 [judicial appeal pending];
Oakland Unified School District (2023) PERB Decision No. 2875, p. 16, fn. 11
(Oakland); San Francisco I, supra, PERB Decision No. 2846-M, p. 18, fn. 15.) One such
standard, relevant here, is that job qualifications fall within the scope of representation
unless the employer does no more than comply with an externally imposed change.
(County of Sacramento (2020) PERB Decision No. 2745-M, pp. 17-18 (Sacramento
County).) “[W]hen external law establishes immutable provisions in an area otherwise
within the scope of representation, matters are negotiable only to the extent of the
employer’s discretion, that is, to the extent that the external law does not ‘set an
inflexible standard or [e]nsure immutable provisions.’” (Id. at p. 18 [quoting Berkeley
Unified School District (2012) PERB Decision No. 2268, p. 9 and San Mateo City
School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 864-865].)
Practice privilege qualifications are not identical to job qualifications, but the two
topics are closely related, as shown by the Irizarry arbitration and the County’s post-
arbitration efforts to change its PA job description to require PAs to maintain NCCPA
certification. Thus, while there is no PERB precedent specific to practice privileges, the
circumstances of this case show why precedent on job qualifications is a persuasive
guide. SEIU raised with the County that the BOS was preparing to vote on bylaw
revisions that would change qualifications for PAs to hold practice privileges. SEIU
specifically pointed out to the County a proposed revision that would change disjunctive
language to conjunctive language, requiring PAs to earn and maintain both a license
and a certificate or other credential to have practice privileges. SEIU asked whether
PAs who do not qualify for practice privileges under the revised bylaws could work for

16
the County, and the County stated that they could not. In these circumstances, we find
the standard set forth in Sacramento County, supra, PERB Decision No. 2745-M,
p. 18, applies equally to practice privileges.
The County’s reply in support of its cross-exception accedes to the standard set
forth in Sacramento County, supra, PERB Decision No. 2745-M, while arguing that
“external law leaves the County no relevant discretion.” But the record does not bear
this exaggerated conclusion. The fact that the County’s BOS has a limited role in
changing EMS bylaws does not equate to the existence of an immutable, externally
imposed mandate. (Id. at p. 18.) Rather, BOS retained certain discretion and the
County had to negotiate to the extent of that discretion. (Ibid.) Here, the extent of the
County’s discretion was that its BOS could not unreasonably withhold approval. (Bus.
& Prof. Code, § 2282.5, subd. (a)(6); Cal. Code Regs., tit. 22, § 70701, subd. (a)(8).)
Thus, while the County might lawfully tell SEIU in negotiations that its BOS had little
choice absent clear problems with the proposed revisions, that is not what the County
did. Indeed, at a minimum, the County had a duty to continue meeting with SEIU to
clarify the extent of any decision bargaining obligation and to bargain effects. Instead, it
flatly refused to bargain.7
7 Selectively quoting from precedent such as Hongsathavij v. Queen of
Angels/Hollywood Presbyterian Med. Ctr. (1998) 62 Cal.App.4th 1123, 1130, fn. 2, the
County suggests that a medical staff organization must be fully independent of the
hospital’s governing board. These citations, often taken out of context, do nothing to
undermine the nuanced legal framework explained ante at page 3, which rendered the
EMS proposed bylaw revisions ineffective absent approval by the BOS, while also
mandating that the BOS could not unreasonably withhold its approval.

17
Nor would the County prevail even if we had found practice privileges to be
distinct enough from job qualifications that we should disregard precedent on
qualifications. Specifically, and as an alternative conclusion, applying the Richmond
Firefighters framework afresh (and assuming for the sake of argument that the
County’s changes fall within the third Richmond Firefighters category), the County had
a decision bargaining duty for multiple reasons. First, from the perspective of
reasonable employees, changes that make it more difficult to earn and maintain
practice privileges have a significant and adverse impact, potentially even causing
them to lose their employment altogether. And the County does not have a need for
unencumbered decision-making that outweighs the benefit to employer-employee
relations of bargaining. In fact, as the arbitrator in the Irizarry matter aptly noted, the
relaxed pace of proposed changes in this area belies any argument that patient safety
would be at risk if the County had to slow down enough to bargain before its BOS
voted on bylaws that changed practice privilege standards.
Moreover, it is instructive to compare this case to an earlier one that also
involved action by the County’s BOS. In County of Santa Clara, supra, PERB Decision
No. 2799-M, the BOS ordinance at issue primarily concerned protecting County
residents’ privacy by limiting use of surveillance technology. Thus, although the
ordinance could affect County employees’ terms and conditions of employment, it
focused on constituent privacy rather than on employment-related matters. (Id. at
pp. 18-24.) The ordinance was therefore akin to a law enforcement agency’s use-of-
force policy or decision to adopt body-worn cameras, which trigger effects bargaining,
and it was unlike a decision focused on improving public safety via changing

18
investigation or discipline practices for law enforcement officers. (Id. at pp. 20-21.)
Accordingly, the Richmond Firefighters balancing test for category three decisions
tipped against finding a decision bargaining obligation, and we found the County
needed to bargain effects but not the decision. (Id. at p. 22.) This comparison further
confirms that qualifications for practice privileges fall within the ambit of a traditionally
bargainable subject, because they operate directly on employee requirements, rather
than focusing on another topic and only indirectly impacting employees.8
As noted, the new AHP practice privilege qualifications tie in with two issues the
County admits fall within the scope of representation: its adverse action against
Irizarry and its related effort to change the PA job description. To require decision
bargaining only over the job description changes, but not over the BOS decision
whether to approve new practice privilege qualifications, would put form over
substance. And it would allow the BOS to create facts on the ground without engaging
in decision bargaining, potentially rendering futile the parties’ negotiations over the PA
job description. Labor law is not “nearly so brittle, arbitrary, or inconsistent.” (County of
San Joaquin (2021) PERB Decision No. 2761-M, p. 45, fn. 23.) Accordingly, we
8 Furthermore, in County of Santa Clara, supra, PERB Decision No. 2799-M,
we found it relevant that a superior court had already found the privacy ordinance
applied to non-employees as well as employees, and the union had not appealed that
decision. (Id. at p. 23.) Here, the County’s briefs regarding the parties’ exceptions
make no explicit argument based on whether AHPs who are not County employees
practice at SCVH. But even had the County not waived any such argument, and
assuming the record could support such an argument, the AHP practice privilege
revisions were manifestly focused on an employment-related issue and primarily
operated on County employees, which would distinguish this case from County of
Santa Clara, supra, PERB Decision No. 2799-M.

19
effectuate the MMBA’s purposes by finding that the County must bargain, to the extent
of the discretion vested in its BOS, over bylaw revisions on AHP practice privileges.
During such negotiations, SEIU may discuss with the County any reasons why the
BOS could reasonably withhold approval absent adjustments. While the scope of
negotiations may be more constrained than in other negotiations with the County, this
constraint does not permit the County to flatly refuse to bargain.9
Finally, the County claims its BOS is not bound by the MMBA when it operates
as the SCVH governing board. The County cites Vanoni v. County of Sonoma (1974)
40 Cal.App.3d 743, 750-751 (Vanoni) for the proposition that BOS “actions as the
Hospitals’ Governing Board cannot be imputed to the County government.” But Vanoni
involved separate boards of separate entities—a county’s board of supervisors and a
flood control and water conservation district board of directors—where the same
members sat on the two bodies. (Ibid.) The County BOS is a unitary governing body,
unlike the separate entities in Vanoni. Moreover, Vanoni did not interpret the MMBA,
and the decision is also inapposite given that the County owns and operates SCVH.
More generally, it would be unreasonable, decades after the MMBA’s enactment, to
suddenly interpret it to contain such a significant exception. Indeed, MMBA section
3504.5, subdivision (a) explicitly requires any governing body of a public agency, or
board or commission designated by law, to provide notice and an opportunity to
9 In the alternative, even assuming for the sake of argument there was basis to
doubt the extent of its bargaining duty, the County at least had a duty to meet with SEIU
in good faith and seek to clarify. (See ante at p. 12.) Instead, it engaged in an outright
refusal to bargain, and after promising to continue meeting, it blatantly broke that
promise.

20
bargain before enacting any ordinance or regulation relating to any matter within the
scope of representation.10
B. 	Change in or Deviation from the Status Quo
There are three primary means of establishing that an employer changed or
deviated from the status quo. (San Francisco I, supra, PERB Decision No. 2846-M,
p. 23.) Specifically, a charging party satisfies this element by showing any of the
following: (1) a change in or deviation from a written agreement or written policy; (2) a
change in established past practice; or (3) a newly created policy or application or
enforcement of existing policy in a new way. (Id. at pp. 22-23; accord KCHA v. PERB,
supra, 100 Cal.App.5th 860, __, 2024 WL 1154291 at *10; id. at *19, fn. 23.)
Taking the bylaw revisions on AHP practice privileges at face value, they make
all three types of changes. At earlier stages of this case, the County claimed there was
no material change in practice privilege requirements. However, as noted ante, we
have accepted as true the arbitrator’s March 2021 decision finding that this claim was
false, at least during fall 2020 when the County refused to bargain. 11
In any event, the County’s submissions to the Board abandon any claim that
there was no material change. The County now admits the change, stating that the
bylaw revisions “require AHPs to hold and maintain both a ‘license’ and a ‘certificate,’”
10 While MMBA section 3504.5, subdivision (a) includes an emergency
exception, the County makes no argument based on that exception.
11 The record does not reflect whether the County subsequently changed its PA
job description after bargaining with SEIU as part of settling Case No. SF-CE-1764-M.

21
meaning that they “need to maintain certification issued by [NCCPA], even if they also
held a PA license.”
Instead of arguing that the bylaw revisions made no material change to practice
privilege qualifications, the County now makes a different claim: that the revisions did
not alter “disciplinary and investigative processes” such as “the extent to which PAs
and other medical professionals could be represented during the Medical Staff’s
investigatory interviews or hearings associated with the peer-review process.” But it
does not matter whether the bylaw revisions altered EMS investigative or enforcement
processes, as no such issue is before us. Rather, as noted, the only change at issue
in the complaint is that the BOS “approved the proposed revisions to the Bylaws
concerning minimum qualifications for employment and the minimum requirements to
possess privileges to practice.” Moreover, as discussed post at pages 23-24, the fact
that the change at issue related to practice privilege standards does not prevent SEIU
from proposing procedural enhancements that might counteract any negative
consequences of the new standards.
For the foregoing reasons, SEIU has established that the County violated its duty
to bargain in good faith, and its duty to clarify its decision bargaining obligation, before
its BOS decided whether to approve the bylaw revisions. We therefore overrule the
ALJ’s determination that the County had no decision bargaining duty. While normally
this distinction impacts the remedy we order (The Accelerated Schools (2023) PERB
Decision No. 2855, pp. 18-19 [distinguishing between standard decision bargaining
remedy and standard effects bargaining remedy]), here that is not the case. For the

22
reasons explained post at page 26, we do not void the BOS decision at issue but rather
hold employees harmless until good faith bargaining is complete.
II. 	Effects Bargaining Analysis
Irrespective of whether a decision falls within the scope of representation, if the
decision has reasonably foreseeable effects on represented employees’ terms and
conditions of employment, the employer must provide adequate advance notice and
opportunity to bargain in good faith over the decision’s implementation and effects.
(Richmond Firefighters, supra, 51 Cal.4th at pp. 265 & 276.) For the sake of brevity, we
use the word “effects” as shorthand for the broad category that comprises both the
effects and implementation of a decision on a non-mandatory bargaining subject.
(Oakland, supra, PERB Decision No. 2875, p. 10.) Negotiations over implementation
typically include proposed alternatives. (Id. at p. 11.) For instance, even though an
employer has no duty to bargain over a decision to lay off employees, the California
Supreme Court has noted that the scope of required effects bargaining includes “the
timing of layoffs and the number and identity of the employees affected.” (Richmond
Firefighters, supra, at pp. 265, 276.) Thus, one purpose of effects bargaining is to permit
the exclusive representative an opportunity to persuade the employer to consider
alternatives that may diminish the impact of the decision on employees. (Oakland,
supra, p. 11.) Effects bargaining violations are equally harmful as decision bargaining
violations, as each disrupts and destabilizes employer-employee relations. In other
words, the effects bargaining obligation is not an inferior duty. (Ibid.)
Here, the Irizarry case amply demonstrates how AHP practice privilege
standards can foreseeably impact employees. Moreover, there is no question that the

23
County failed to provide adequate notice and opportunity to bargain over effects. Nor
does the County claim that it can establish a defense under Compton Community
College District (1989) PERB Decision No. 720 (Compton), which allows an employer to
implement its decision before completing effects negotiations if it can establish each of
three elements: (1) the implementation date was based on an immutable deadline or an
important managerial interest, such that a delay in implementation beyond the date
chosen would effectively undermine the employer’s right to make the decision; (2) the
employer gave sufficient advance notice of the decision and implementation date to
allow for meaningful negotiations prior to implementation; and (3) the employer
negotiated in good faith prior to and after implementation. (Id. at pp. 14-15.)12
The County now admits that it had a duty to bargain effects and that it failed to
comply with that duty. The County’s admission is a nuanced one, however. As noted
ante, the County admits a duty to bargain over certain effects, including topics related
to County employment consequences for loss of practice privileges. Such proposals
might cover, for instance: (1) a grace period before any disciplinary consequence for
loss of practice privileges, to allow a PA to regain such privileges; and/or (2) other
assistance with respect to earning, maintaining, or regaining practice privileges.
12 In any event, we agree with the ALJ that no Compton defense is available on
these facts for two independent reasons. First, while one County witness believed it
was important to implement the bylaw revisions promptly, no record evidence
indicated any set deadline for implementation, much less that the BOS had to act in
December 2020. Second, even when a party can establish such a deadline, it still
must bargain as practicable before implementation, and continue bargaining
thereafter, but the County did neither.

24
In contrast, the County urges that it has no duty to bargain over proposals about
investigation or enforcement mechanisms for ascertaining whether an AHP meets
practice privilege standards, because responsibility for making changes to such
mechanisms lies foremost with EMS and the County cannot make changes on its own,
without EMS. This claim ignores both the requirement that an employer bargain to the
extent of its discretion, as well as an equally important principle: a bargaining party
can lawfully make a proposal that is contingent on its counterpart attempting in good
faith to convince a third party to take a specified action. (See, e.g., State of California
(Department of Personnel Administration) (1998) PERB Decision No. 1249-S,
adopting warning letter at p. 4 [employer lawfully proposed that union support
specified future legislation].) Particularly given that certain changes are impossible
absent approval from both EMS and the County BOS, and since the governing legal
framework requires the two entities to collaborate with one another, we find no cause
to impose artificial limits on the types of proposals SEIU may make pertaining to the
effects of changing practice privilege standards. As with proposals over the BOS
decision to approve the bylaw revisions, the County may lawfully explain in bargaining
why certain changes might require multiple steps, including one or more in which it
might have at most a persuasive role.13
13 As noted ante at p. 11, the complaint only alleges that the County failed to
bargain before its BOS voted to approve the bylaw revisions, and we therefore
express no opinion whether EMS ever acts as a County agent or has an employer-
employee relationship with PAs pursuant to the single-employer or joint-employer
doctrines. Thus, there is no cause to consider how any such conclusion might change
the nature of the parties’ negotiations.

25
For these reasons, we affirm the ALJ’s conclusion that the County violated its
effects bargaining duty and we decline the County’s request to make certain topics off
limits in such negotiations.
Finally, the County’s bargaining violations derivatively interfered with protected
union and employee rights. (City and County of San Francisco (2023) PERB Decision
No. 2858-M, p. 14, fn. 8 (San Francisco II).)
III. 	SEIU’s Exceptions as to the Proper 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 Comm. 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.) Moreover, a “properly designed remedial
order seeks a restoration of the situation as nearly as possible to that which would
have obtained but for the unfair labor practice.” (Modesto City Schools (1983) PERB
Decision No. 291, pp. 67-68.)14
14 Notably, PERB augments customary remedies if they are inadequate based
on unique aspects of a violation or set of violations. (Regents of the University of
California (2021) PERB Decision No. 2755-H, p. 56 [non-customary remedies are
“appropriate in a variety of circumstances, including: where conduct was egregious,
intentional, systematic, or repeated; or whenever customary remedies are insufficient,
including but not limited to as a result of the nature of the conduct, workforce language
or literacy issues, or significant time has passed since the violation”].)

26
SEIU raises multiple issues in its exceptions related to the proper remedy. First,
SEIU points out that PERB’s standard remedy for a unilateral change includes
invalidating a decision made in violation of the duty to bargain. However, this case
involves unusual circumstances. SEIU-represented PAs are a small fraction of those
covered by the EMS bylaw revisions, and the complaint targets only one paragraph of
the extensive bylaws. For these unique reasons, our order enforces the MMBA by
requiring the County to hold SEIU-represented PAs harmless until good faith
negotiations are complete, akin to our order in County of Santa Clara, supra, PERB
Decision No. 2799-M, p. 31.15
Second, SEIU asks us to augment customary means of affording employees
notice of this decision by ordering the County to provide spoken notice. However,
SEIU has not established that customary notice mechanisms are insufficient. (See
County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No. 2619-M,
p. 14, fn. 14; Alliance College-Ready Public Schools et al. (2017) PERB Decision
No. 2545, pp. 17-18; cf. Mt. San Jacinto Community College District (2023) PERB
Decision No. 2865, pp. 42-43 [spoken notice needed to “blunt the impact of the
District’s unlawful conduct, which may otherwise persist to some degree”].) Moreover,
footnote 22 on page 39, post, allows SEIU to ask OGC to augment our notice post
order, if needed.
15 When the record closed, the County and SEIU were negotiating over PA job
specifications, and we do not know the outcome of those negotiations. The parties
may argue to the compliance officer as to the import (if any) of the negotiation over PA
job specifications and any outcome of that negotiation. (See County of Santa Clara,
supra, PERB Decision No. 2799-M, p. 30, fn. 15.)

27
In its main arguments regarding the proper remedy, SEIU urges that we amend
our established make-whole standards to include attorney fees based on hours spent
successfully litigating this case, and SEIU further requests that we apply existing
standards to grant it an array of bargaining and representation damages related to the
County’s violation. We address these arguments below.
A. 	Make-Whole Principles
To serve the dual purposes of a remedial order noted above, PERB must
expunge the consequences of an unfair practice and restore “the economic status quo
that would have obtained but for the respondent’s wrongful act.” (County of Kern &
Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 26 (Kern
County); City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13 (Pasadena).
cf. Local Joint Executive Bd. of Las Vegas v. NLRB (9th Cir. 2018) 883 F.3d 1129,
1139-1140 [failure to afford full make-whole relief was abuse of discretion].)16 We
therefore attempt to “recreate the conditions and relationships that would have been
had there been no unfair labor practice, even when doing so necessarily entails some
degree of uncertainty as to the precise relationships.” (Pasadena, supra, PERB Order
No. Ad-406-M, p. 13.) While make-whole relief therefore must typically rely on
estimates, such estimates are preferable to allowing uncertainty—caused by unlawful
16 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. (El Centro Regional Medical Center (2024) PERB Decision
No. 2890-M, p. 8, fn. 6 (El Centro).)

28
conduct—to leave an unfair practice without a fully effective remedy. (San Francisco II,
supra, PERB Decision No. 2858-M, pp. 14-15.)
For all categories of make-whole relief, a charging party normally has the
burden to establish in compliance proceedings the nature and extent of compensable
harms that resulted in material part from the respondent’s violations. (San Francisco II,
supra, PERB Decision No. 2858-M, p. 15; Antelope Valley Community College District
(2023) PERB Decision No, 2854, p. 7; Regents of the University of California (2021)
PERB Decision No. 2783-H, p. 32 (Regents).)
1. 	Current Standards on Costs of Litigation, Bargaining, and Representation
Except in cases in which there is a statutory right to attorney fees (see
§ 3551.5, subd. (b); § 3558, subd. (d)(4)), PERB usually follows the “American Rule,”
pursuant to which a successful party normally has no claim to fee shifting.
(Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 12
(Sacramento City).) Rather, a party in a PERB case seeking to recover attorney fees
and costs for litigation work done in relation to the same case must normally show that
its opponent maintained a claim, defense, or motion, or engaged in another action or
tactic, that was without arguable merit and pursued in bad faith. (Palomar Health
(2024) PERB Decision No. 2895-M, p. 63 (Palomar) [judicial appeal pending].)
However, we apply a different standard when deciding if a respondent found to
have committed an unfair practice must pay attorney fees and costs related to a
separate proceeding—whether the proceeding is in court, in arbitration, or in a
separate PERB charge or representation matter. (City and County of San Francisco
(2024) PERB Decision No. 2891-M, p. 24 (San Francisco III).) A charging party need

29
not establish an egregious violation; instead, the charging party need only establish
that it (or a party in privity with it) engaged in the separate proceeding in material part
to remedy, lessen, make up for, or stave off the impacts of the unfair practice at issue.
(Ibid., citing Victor Valley Union High School District (2022) PERB Decision No. 2822,
pp. 23-24 (Victor Valley); Sacramento City, supra, PERB Decision No. 2749,
pp. 11-12; City of San Diego (2019) PERB Decision No. 2464a-M, p. 4 (San Diego);
Omnitrans (2009) PERB Decision No. 2030-M, p. 30; County of San Joaquin (Health
Care Services) (2003) PERB Decision No. 1524-M, p. 3 (San Joaquin Health).)
Similarly, a charging party can obtain damages for increased bargaining or
representation costs, resource diversion, or waste of resources resulting in material part
from a violation, irrespective of whether the violation was egregious. (See, e.g., San
Francisco III, supra, PERB Decision No. 2891-M, pp. 24-25, citing San Francisco II,
supra, PERB Decision No. 2858-M, pp. 15-17 and Alliance Judy Ivie Burton
Technology Academy High et al. (2022) PERB Decision No. 2809, pp. 14, 31-32 & 34
(Alliance).) Moreover, particularly given SEIU’s focus on legal expenses in its
exceptions, it is noteworthy that bargaining or representation damages may include
fees based on consulting with an attorney, and/or an attorney’s appearance at the
bargaining table or in another representational context. (See, e.g., National Labor
Relations Bd. v. Ampersand Publishing, LLC (9th Cir. 2022) 43 F.4th 1233, 1238-
1239.) However, such damages normally do not include fees for any stage of
researching or drafting the charge at issue, nor work on later stages of the case (ibid.),
except in unusual circumstances not at issue here (see, e.g., Bellflower Unified School

30
District (2022) PERB Decision No. 2544a, p. 51, fn. 32 [discussing ancillary
enforcement proceedings] (Bellflower).)
2. 	SEIU’s Argument for Fee-Shifting as a Standard Remedy
SEIU claims that a successful charging party in a PERB proceeding should
recover attorney fees in that case without showing that its opponent maintained a
litigation stance that was without arguable merit and pursued in bad faith. One basis
for SEIU’s argument is that litigation costs are a direct harm, or at least an indirect,
foreseeable harm, of the violation.
SEIU primarily points our attention to a decision of the National Labor Relations
Board (NLRB): Thryv, Inc. (2022) 372 NLRB No. 22 (Thryv). There, the NLRB clarified
that make-whole relief includes both “direct” and “indirect but foreseeable” economic
harms resulting from a violation (id. at p. 7), a principle that the NLRB summarized as
constituting a “direct or foreseeable” standard (id., passim). The NLRB then provided
examples of harms falling under this standard, including, but not limited to: lodging,
food, child care, and transportation expenses incurred because of an unlawful
termination; legal costs and fees incurred after an employer unlawfully caused an
employee to be arrested; costs incurred because of unlawfully assigned new duties;
costs associated with searching for work, or with accepting and performing an interim
job, after an unlawful termination; harms associated with a defined contribution plan,
including both lost contributions and resulting lost investment growth; medical costs
incurred because of a violation, including out-of-pocket bills, premiums, copayments,
coinsurance, and deductibles; interest and late fees on credit cards; penalties from
early retirement withdrawals needed to cover living expenses; harms related to

31
hardships in paying off a mortgage or car loan; and adverse tax consequences from
receiving a lump-sum award. (Id. at pp. 7-9 & 13-14.) However, the NLRB noted that it
does not apply the “direct or foreseeable” standard to cover a successful party’s claim
for automatic fee shifting. (Id. at p. 12, fn. 13.)17
SEIU also cites a second NLRB decision: Grill Concepts Services (2022) 372
NLRB No. 30 (Grill Concepts). There, the NLRB ordered an employer to reimburse
bargaining costs to both the charging party union and its employee negotiators. (Id. at
pp. 2-3.)
To contextualize SEIU’s arguments, we begin by noting that PERB remedial
standards already cover most direct or foreseeable harms resulting in material part
from a violation. The American Rule on fee shifting is an exception to this principle, as
are the prohibition on awarding monetary relief for emotional pain and suffering
(Trustees of the California State University (East Bay) (2013) PERB Order
17 Thryv, supra, 372 NLRB No. 22 notes that the NLRB had initially solicited
party and amici briefs regarding “consequential damages,” but after further
consideration it determined that label is not the most apt means to describe indirect
but foreseeable harms flowing from a statutory violation. (Id. at pp. 8-10.) This is
primarily true, the NLRB explained, because “consequential damages” is a common law
term, but the NLRB’s mission is to safeguard public rights and its remedies are statutory
ones not grounded in common law, leaving it unfettered by causation principles that
apply to remedying private injuries. (Id. at pp. 9-10.) The NLRB observed that in
performing this mission, it learns from experience and frequently updates its remedial
approach. (Id. at p. 9.) Moreover, the NLRB noted that while compliance proceedings
can often occur without a hearing, an evidentiary hearing is a fully acceptable means of
resolving complex compliance matters. (Id. at p. 12.) Because an NLRB compliance
officer requires evidence of harm, such proceedings are not an opening for speculative
remedies. (Ibid.)

32
No. IR-56-H, p. 4, fn. 5) and the statutory bar against damages or expenses an
employer incurs in relation to a strike.18
Outside of these exceptions, a successful charging party can normally recover
compensation for direct or foreseeable harms resulting in material part from a
violation. (See, e.g., Palomar, supra, PERB Decision No. 2895-M, pp. 63-67 [legal
expenses related to defending against employer’s lawsuit seeking to enjoin certain
union activity]; San Francisco III, supra, PERB Decision No. 2891-M, p. 26 [potential
recovery of costs resulting from failure to provide information]; San Francisco II, supra,
PERB Decision No. 2858-M, p. 17 [bargaining costs]; Victor Valley, supra, PERB
Decision No. 2822, pp. 23-24 [cost of deposition defense]; Alliance, supra, PERB
Decision No. 2809, pp. 14 & 31-32 [organizing and bargaining costs materially caused
by unfair practice]; Bellflower, supra, PERB Decision No. 2544a, pp. 46-50 [lost dues];
Sacramento City, supra, PERB Decision No, 2749. p. 21 [attorney fees for litigating
petition to compel arbitration necessitated by employer’s violation]; San Diego, supra,
PERB Decision No. 2464a-M, p. 4 [fees for litigating quo warranto suit to rescind voter
initiative unlawfully placed on the ballot]; Omnitrans, supra, PERB Decision
No. 2030-M, p. 30 [fees union paid for defense of criminal case resulting from
employer’s unfair practice].)19
18 The bar on strike-related damages is codified at MMBA section 3509,
subdivision (b), and in comparable provisions in the other statutes we enforce.
19 PERB also compensates harms that employees incur in material part from a
violation, irrespective of whether the employees themselves were charging parties.
(See, e.g., Bellflower, supra, PERB Decision No. 2544a, pp. 33-41, 44-46 [medical
and retirement losses, costs associated with job search or new job, and tax
neutralization]; Regents, supra, PERB Decision No. 2783-H, p. 32 [costs associated

33
with discipline or unpaid leave and out-of-pocket vaccine costs]; State of California
(Correctional Health Care Services) (2021) PERB Decision No. 2760-S, pp. 36-48
[retroactive reclassification]; County of Ventura (2021) PERB Decision No. 2758-M,
pp. 54-56 [fees paid to tax preparer or other professionals because of violation]; Lodi
Unified School District (2020) PERB Decision No. 2723, p. 21 [compensating
employees who were deprived of choice as to when to use accrued leave]; City of San
Gabriel (2020) PERB Decision No. 2751-M, pp. 32-33 [order to reinstate unlawfully
withdrawn proposal, afford union option to accept it, and (if accepted) retroactively
provide wage increases]; Kern County, supra, PERB Decision No. 2659-M, pp. 24-27
[rescinding subcontract and noting that make-whole relief is proper when subcontract
causes layoff or subcontractor’s employees would have earned more had they been
public employees]; Contra Costa County Fire Protection District (2019) PERB Decision
No. 2632-M, p. 62 [to remedy employer’s discriminatory bargaining, damages are
based on benefit provided to comparator employee group that did not engage in
protected activity]; Capistrano Unified School District (2015) PERB Decision No. 2440,
pp. 45-53 [reinstatement and back pay for discharge caused in part by refusal to allow
union representation] (Capistrano); Pasadena, supra, PERB Order No. Ad-406-M, p. 8
[compensation for extra work estimated based on pay to other employee groups and
at other employers]; San Joaquin Health, supra, PERB Decision No. 1524-M, p. 3
[fees incurred for defense before hospital’s medical evaluation committee]; Los
Angeles Unified School District (2001) PERB Decision No. 1469, p. 11 [back pay and
front pay to private sector employee terminated due to school district’s violation]; San
Jacinto Unified School District (1994) PERB Decision No. 1078, p. 4 & adopting
proposed decision at pp. 38-39 [overtime due estimated based on average hours
worked prior to unilateral change]; San Mateo City School District (1984) PERB
Decision No. 375a [salaried teachers assigned more work owed extra hourly wages];
Corning Union High School District (1984) PERB Decision No. 399, pp. 16-17 [same].)
While PERB’s remedial standards already encompass the categories of relief
explained in Thryv and Grill Concepts, SEIU urges that PERB should as a matter of
course order reimbursement of litigation expenses to a successful charging party in a
PERB proceeding. SEIU argues that this rule would vindicate the principle that
“California public sector labor relations precedent protects employee and union rights
to a greater degree than does federal precedent governing private sector labor
relations.” (San Francisco II, supra, PERB Decision No. 2858-M, p. 16, fn. 9.)

34
It is true that, at times, broader remedies are available under California public
sector labor relations law, compared to the federal framework governing the private
sector. For instance, in San Francisco II, supra, PERB Decision No. 2858-M, we noted
that PERB awards bargaining-related damages without any need for the charging
party to show that the respondent’s violation was egregious. (Id. at p. 16, fn. 9.) As
another example, in Capistrano, supra, PERB Decision No. 2440, pp. 45-53, we
explained that PERB’s make-whole standard for denial of representational rights is
broader than the federal standard, in part because the NLRB altered its earlier
precedent. (Id. at pp. 48-51.) In other instances, the exact relation of federal and
PERB precedent is still less than clear.20
Significantly, however, there is no blanket rule that all California public sector
remedial standards are necessarily broader than their federal counterparts. While
PERB, like the NLRB, learns from experience and regularly reviews its remedial
standards (see, e.g., El Centro, supra, PERB Decision No. 2890-M, pp.19-25
[adopting daily compound interest, in lieu of simple interest, for all monetary awards]),
at this juncture we find no cause to deviate from the American Rule on fee shifting.
20 For instance, we express no opinion as to the circumstances in which we
should or should not apply the restriction on certain monetary damages for failure to
bargain in good faith that the NLRB explained in Ex-Cell-O Corp. (1970) 185 NLRB
107 (Ex-Cell-O) [in the absence of a flagrant violation, improper to presume what
contract terms employer would have reached via timely, good faith negotiations].
While we have cited Ex-Cell-O infrequently and in passing, the decision has drawn
criticism (see, e.g., International Union of Elec., Radio and Mach. Workers, AFL-CIO
v. NLRB (D.C. Cir. 1970) 426 F.2d 1243, 1249) and is potentially subject to further
review at the NLRB (see, e.g., Omni Excavators, Inc. (2024) 373 NLRB No. 18, p. 4,
fn. 8).

35
B. 	Application to SEIU’s Claims
Applying our existing rule on attorney fees as a litigation sanction, the record
does not indicate that the County asserted a frivolous, bad faith defense, and we
therefore reject SEIU’s attorney fees claim.
However, SEIU seeks other compensation that is consistent with make-whole
principles. First, SEIU argues that the County must compensate PAs “for all costs
associated with [NCCPA] licensing and testing,” including “training and testing,” as well
as “transportation costs, internet expenses, cell phone expenses, etc.” We agree that
these categories are compensable to the extent SEIU can establish that the bylaw
revision on AHP practice privileges materially increased such costs in a manner that is
reasonably feasible to estimate.
Second, SEIU requests that we order compensation for bargaining and
representation costs that increased, or which SEIU wasted or diverted, because of the
County’s violation.21 We concur that such damages are compensable if they are
reasonably feasible to estimate. Examples of damages due to SEIU and/or SEIU-
represented employees include, but are not limited to: (1) compensation for wages or
leave that SEIU-represented employees lost—or that SEIU reimbursed to employees—
due to their efforts to bargain over AHP practice privileges (including reasonable
bargaining preparation time) or because of their representational activities to stave off,
lessen, remedy, ameliorate, or counteract the County’s bargaining violation; and
21 Notably, the charging party in County of Santa Clara, supra, PERB Decision
No. 2799-M waived such arguments. (Id. at p. 28, fn. 14.) Similarly, in other past
cases the charging party has not asked for bargaining and representation costs and/or
not asked us to delineate what bargaining and representation costs are compensable.

36
(2) compensation SEIU paid for the purposes just mentioned to its own employees, or to
contractors, attorneys, or other professionals (excluding litigation of this case), if such
compensation increased, or reflected diverted or wasted resources, resulting in material
part from the County’s violation.
The parties met only a single time, on September 21, 2020, to discuss the
pending bylaw revisions. SEIU’s costs for that meeting are compensable, as the
County’s flat refusal to bargain meant that SEIU wasted resources on a futile meeting
that could not serve its critical purpose of good faith bargaining. In compliance
proceedings, SEIU has the burden of proving these damages and any other increased
bargaining or representation costs, resource diversion, or waste of resources that it
claims resulted in material part from the County’s violation. For instance, SEIU has the
burden of proof to the extent it claims the County’s bargaining violation materially
caused compensable harm during the parties’ later negotiations over PA job
specifications, and we express no opinion on that question at this stage.
For SEIU to satisfy its burden as to any damages category, it must establish a
reasonably feasible means to estimate compensation. And if the County argues that a
reasonable person could not have foreseen that a type of harm might ensue from a
violation, the compliance officer shall assess whether the County’s showing is
sufficient to shield the County, in whole or in part, from that damages category.
ORDER
Based upon the foregoing and the entire record in this case, the Public
Employment Relations Board (PERB) finds that the County of Santa Clara violated the
Meyers-Milias-Brown Act, Government Code section 3500 et. seq. (MMBA) when its

37
Board of Supervisors (BOS) voted to approve revisions to the bylaws of the medical
staff organization at Santa Clara Valley Healthcare (SCVH), without providing Service
Employees International Union Local 521 (SEIU) adequate notice and an opportunity
to bargain over the decision and/or the reasonably foreseeable impacts thereof.
Pursuant to MMBA section 3509, subdivision (b), it is hereby ORDERED that
the County, its governing body, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Taking adverse employment actions against SEIU-represented
physician assistants (PAs) based on their failure to earn or maintain practice
privileges, if such failure resulted in material part from the bylaw revisions the BOS
approved on December 15, 2020, unless and until the County has bargained in good
faith with SEIU over the matter of Allied Health Professional practice privileges and the
effects and implementation thereof (to the extent of the discretion held by the County
and its BOS), and the County has either: (a) reached agreement with SEIU and used
best efforts to take all necessary and prudent steps toward finalizing and implementing
all aspects of that agreement; or (b) concluded negotiations because SEIU has failed
or refused to bargain in good faith or because the parties have reached a bona fide
impasse and exhausted all required or agreed upon impasse resolution procedures.
2. 	Failing or refusing to afford SEIU adequate notice and opportunity
to bargain in good faith over decisions involving mandatory bargaining subjects or
bargainable effects of decisions involving non-mandatory bargaining subjects.
3. 	Interfering with protected union and employee rights.

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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Rescind any adverse employment action already taken against
any SEIU-represented PA based on failure to earn or maintain practice privileges, if
such failure resulted in material part from the bylaw revisions the BOS approved on
December 15, 2020; and make whole any SEIU-represented PA who was subject to
such adverse action.
2. 	For the period lasting from September 1, 2020, until the condition
set forth in paragraph A(1) is satisfied, make whole SEIU and SEIU-represented
County employees for harms resulting in material part from the County’s refusal to
bargain before its BOS approved practice privilege changes on December 15, 2020.
Consistent with this decision, such harms shall include, but not be limited to: (a) extra
costs for training, testing, licensing, and associated transportation, internet, or cell
phone service that any SEIU-represented PA incurred in material part because of the
practice privilege changes in the bylaw revisions; and (b) damages for increased
bargaining or representation costs, resource diversion, or waste of resources, resulting
in material part from the County’s violation.
3. 	Augment any amounts due under this Order by providing interest
accrued to the date of payment at an annual rate of seven percent, compounded daily.
4. 	Within 10 workdays after this decision is no longer subject to
appeal, post at all work locations where notices to SEIU-represented SCVH
employees are posted, copies of the Notice attached hereto as an Appendix. An
authorized agent of the County must sign the Notice, indicating that the County will

39
comply with the terms of this Order. The County shall maintain the posting for a period
of 30 consecutive workdays. The County shall take reasonable steps to ensure that
the Notice is not reduced in size, altered, defaced, or covered with any other material.
In addition to physically posting this Notice, the County shall communicate it by
electronic message, intranet, internet site, and other electronic means the County
uses to communicate with SEIU-represented SCVH employees.22
5. 	Notify OGC of the actions the City has taken to follow this Order
by providing written reports as directed by OGC and concurrently serving such reports
on SEIU.
Chair Banks and Member Paulson joined in this Decision.
22 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. SF-CE-1859-M, Service Employees
International Union Local 521 v. County of Santa Clara, in which all parties had the
right to participate, the Public Employment Relations Board found that the County of
Santa Clara violated the Meyers-Milias-Brown Act, Government Code section 3500 et
seq. (MMBA) when our Board of Supervisors (BOS) voted to approve revisions to the
bylaws of the medical staff organization at Santa Clara Valley Healthcare, without
providing Service Employees International Union Local 521 (SEIU) adequate notice
and an opportunity to bargain over the decision and/or the reasonably foreseeable
impacts thereof.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Taking adverse employment actions against SEIU-represented
physician assistants (PAs) based on their failure to earn or maintain practice
privileges, if such failure resulted in material part from the bylaw revisions the BOS
approved on December 15, 2020, unless and until we have bargained in good faith
with SEIU over the matter of Allied Health Professional practice privileges and the
effects and implementation thereof (to the extent of our discretion), and we have
either: (a) reached agreement with SEIU and used best efforts to take all necessary
and prudent steps toward finalizing and implementing all aspects of that agreement; or
(b) concluded negotiations because SEIU has failed or refused to bargain in good faith
or because the parties have reached a bona fide impasse and exhausted all required
or agreed upon impasse resolution procedures.
2. 	Failing or refusing to afford SEIU adequate notice and opportunity
to bargain in good faith over decisions involving mandatory bargaining subjects or
bargainable effects of decisions involving non-mandatory bargaining subjects.
3. 	Interfering with protected union and employee rights.

2
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF THE MMBA:
1. 	Rescind any adverse employment action already taken against
any SEIU-represented PA based on failure to earn or maintain practice privileges, if
such failure resulted in material part from the bylaw revisions the BOS approved on
December 15, 2020; and make whole any SEIU-represented PA who was subject to
such adverse action.
2. 	For the period lasting from September 1, 2020, until the condition
set forth in paragraph A(1) is satisfied, make whole SEIU and SEIU-represented
County employees for harms resulting in material part from our refusal to bargain
before the BOS approved practice privilege changes on December 15, 2020,
including:
(a) extra costs for training, testing, licensing, and associated transportation,
internet, or cell phone service that any SEIU-represented PA incurred in material part
because of the practice privilege changes; and
(b) damages for increased bargaining or representation costs, resource
diversion, or waste of resources, resulting in material part from the County’s violation.
3. 	Augment any amounts due by providing interest accrued to the
date of payment at an annual rate of seven percent, compounded daily.
Dated: _____________________ 	County of Santa Clara
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.