Decision 2600M – County of Ventura

LA-CE-655-M

Decision Date: December 7, 2018

Decision Type: PERB Decision

Description: Union excepted to a proposed decision dismissing an unfair practice charge alleging that County violated MMBA by refusing to process Union’s petition for certification to represent Clinic employees. The ALJ found that the petitioned-for employees are solely employed by private for-profit corporations that contract with the County.  The ALJ found that the single employer and joint employer tests are not satisfied.

Disposition: The Board reversed the proposed decision, finding that the Union met its burden under the single employer doctrine and, alternatively, under the joint employer doctrine.  Since the County is a public agency within the meaning of the MMBA, and it satisfies the single employer and joint employer tests with respect to Clinic employees, PERB maintains jurisdiction over the County.  The Board ordered the County to process the Union’s certification petition and any future petition the Union may file with respect to Clinic employees, to provide reasonable lists of Clinic employees and associated information, and to cease and desist from enforcing a personnel rule limiting the timeframe that the Union may file petitions.

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Perc Vol: 43
Perc Index: 87

Decision Headnotes

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.04000 – Joint Employer, Single Employer, and Alter Ego Doctrines

In assessing a single employer claim, PERB looks at four factors: (1) functional integration of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or common financial control. (California Virtual Academies (2016) PERB Decision No. 2484, p. 64 (CAVA).) Single employer status “does not require the presence of all four factors.” (Ibid.) This is especially the case given that our inquiry must take into account not only how many of the factors are present, but also to what extent they are present. (pp. 18-19.) Single employer relationship found where County and clinic corporations do not operate at arm’s length.

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.04000 – Joint Employer, Single Employer, and Alter Ego Doctrines

In assessing a single employer claim, centralized control of labor relations does not necessarily depend on centralized authority over day-to-day matters. (El Camino Hospital District (2009) PERB Decision No. 2033-M, pp. 20-21 (El Camino) [entity has centralized control by virtue of its right to ratify collective bargaining agreements, even though it neither negotiated such agreements nor exercised day-to-day authority].) (pp. 20-21.) Moreover, common management can be found even in the presence of a dispersed management structure. (California Virtual Academies (2016) PERB Decision No. 2484, p. 73 (CAVA); accord Sakrete of Northern California, Inc. v. NLRB (9th Cir. 1964) 332 F.2d 902, 907, cert. den. (1965) 379 U.S. 961 [common management, centralized control of labor relations, and integration of operations can be demonstrated at the executive or top level, even where there is separation at a more localized level].) Practical and economic realities of the entities’ relationship also taken into account. (p. 24-25.) Strong evidence of common ownership and financial control exists between County and private for-profit Clinic corporations where County owns all Clinic premises, as well as all Clinic equipment and all Clinic revenues. All such revenues, and many Clinic expenses, are integrated into the County’s budget. The County covers all Clinic losses. The Clinics’ operating expenses exceed their revenues every year, and the County absorbs this shortfall. (p. 26.)

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.04000 – Joint Employer, Single Employer, and Alter Ego Doctrines

In order to demonstrate that two entities constitute joint employers, union must show that they share influence over, or co-determine, one or more terms or conditions of employment. (County of Ventura (2009) PERB Decision No. 2067-M, p. 4. Evidence satisfies this standard if the County retains “the right to control the manner and method in which the work is performed.” (Id. at p. 6) PERB follows the “right to control” test, meaning it is irrelevant whether an employer having such a right of control chooses to use it by exerting actual control over employment terms or conditions. (pp. 28-29.) Board disapproves any suggestion that a joint employer finding depends on actual control, and endorses the right of control test as articulated in PERB caselaw and consistent with both California appellate precedent and the NLRB’s full explanation of the right of control test in in Browning-Ferris Industries of California, Inc. (2015) 362 NLRB No. 186 (Browning-Ferris II). A public entity with a right of control maintains its status as an employer regardless of the extent to which it exercises actual control. (p. 31-32.)

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.04000 – Joint Employer, Single Employer, and Alter Ego Doctrines

A joint employer is required to bargain only with respect to those terms over which it possesses at least a partial right of control. (A joint employer is required to bargain only with respect to those terms over which it possesses at least a partial right of control. (County of Ventura (2012) PERB Decision No. 2272-M, pp. 20-21 (Ventura II).)

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.04000 – Joint Employer, Single Employer, and Alter Ego Doctrines

Board maintains jurisdiction over an employer covered under a PERB-administered statute when it enters into a single employer or joint employer relationship with an entity over which PERB does not assert jurisdiction. Thus, PERB maintains jurisdiction over the County, as it is covered by the MMBA and has entered into both a single employer and joint employer relationship role with respect to private non-profit Clinic employees, even if Clinic corporations fall outside PERB jurisdiction. (p. 39-40.) A single employer relationship, like a joint employer relationship, is not a formal merger of separate entities, but rather is a legal construct for collective bargaining purposes. (California Virtual Academies (2016) PERB Decision No. 2484, p. 67 (CAVA) [“Under the single employer doctrine, the ‘single employer’ is . . . an analytical construct that is imposed under judicially developed doctrines on legally distinct but nominally separate and functionally integrated entities solely for the purpose of representation and collective bargaining” (Emphasis in original)].) (pp. 40-41.) Just as PERB will not assert jurisdiction over a private sector entity merely because it enters into a joint employer or single employer relationship with a PERB-covered entity, PERB also does not lose jurisdiction over an entity that enters into a single employer or joint employer relationship with an entity over which we do not assert jurisdiction. This conclusion follows from the principle that a single employer or joint employer relationship is a legal construct for purposes of collective bargaining; it does not mean that two separate entities have legally merged into one. (p. 41.)

1203.00000 – REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS
1203.01000 – In General

The Board ordered the County to process the Union’s certification petition and any future petition the Union may file with respect to Clinic employees, to provide reasonable lists of Clinic employees and associated information, and to cease and desist from enforcing a personnel rule limiting the timeframe during which petitions may be filed by Union. An order to provide such lists is appropriate given that the County has substantially frustrated employee rights by refusing to comply with the Board’s 2009 order and relitigating the extent to which it is an employer of Clinic employees. Board does not issue the more severe remedy—a bargaining order—because it has no basis to conclude that Union attained majority status. In the absence of a bargaining order it is appropriate for the County to provide a list of Clinic employees. While Board cannot undo past delays, this remedy will help to minimize future delays while balancing all competing interests. (p. 44 & fn. 50.)

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.01000 – In General

Board ordered the County to process the Union’s certification petition and any future petition the Union may file with respect to Clinic employees, to provide reasonable lists of Clinic employees and associated information, and to cease and desist from enforcing a personnel rule limiting the timeframe that petitions may be filed by the Union.