County of Ventura v. Public Employment Relations Bd. ( 2019 )

Filed 11/21/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
COUNTY OF VENTURA, B294825
(PERB Dec. No. 2600-M)
Petitioner, (PERB Case No. LA-CE-655-M)
v.
PUBLIC EMPLOYMENT
RELATIONS BOARD,
Respondent;
SERVICE EMPLOYEES
INTERNATIONAL UNION,
LOCAL 721,
Real Party in Interest.
Service Employment International Union, Local 721
(SEIU) sought to represent nonphysician employees of satellite
medical clinics (Clinics) owned by private corporations but under
contract with Ventura County Medical Center (VCMC) to provide
medical services. The County of Ventura (the County) refused to
process SEIU’s petition to represent the employees (Clinic
employees) on the ground that private corporations and not the
County were the sole employers. SEIU filed an unfair practice
charge with the Public Employment Relations Board (PERB),
alleging the County’s refusal to process its petition violated the
Meyers-Milias-Brown Act (MMBA) (Gov. Code,1 § 3500 et seq.),
which governs employer-employee relations between public
agencies and public employees. An administrative law judge
(ALJ) found in favor of the County and dismissed the unfair
practice charge. PERB reversed the ALJ’s decision and found the
County is a single employer or, in the alternative, a joint
employer of Clinic employees.
The County filed this petition for a writ of
extraordinary relief from PERB’s decision (§ 3509.5, subds. (a) &
(b)). It argues PERB lacked jurisdiction because Clinic
employees were private employees, and not County employees.
We affirm.
FACTS
The County, through the Health Care Agency, owns
and operates VCMC. VCMC provides a network of ambulatory
care clinics, which consist of either specialty care or primary care
clinics. The primary care clinics consist of 17 privately-owned
Clinics throughout Ventura County. The Clinics provide
outpatient services to the underserved patient population and
advertise these services as affiliated with VCMC.
Each private corporation has a Professional Services
and Operations Agreement (Operations Agreement) with VCMC
to provide medical services. Each corporation is owned by a
physician, who serves as the Clinic’s medical director. The
1 Further
unspecified statutory references are to the
Government Code.
2
medical director’s duties and responsibilities are established
through the Operations Agreement.
Each of the Operations Agreements between VCMC
and the Clinics are “almost identical.” The Operations
Agreements state that VCMC is the “licensed operator” of each
Clinic. Each Clinic identifies itself as a “clinic of [VCMC].” The
Operations Agreements state that Clinic patients are VCMC
patients and patient records are VCMC property.
The County provides and maintains the facilities,
equipment, and furnishings for the Clinics to operate. The
Operations Agreements state the Clinics “shall not do anything
in or about” the facilities that would “obstruct or interfere with
the rights of” VCMC. The County is permitted to use the
facilities for “any purpose,” including maintaining licenses and
permits, coordinating and reviewing medical records or financial
records, administering VCMC programs, and providing services.
Financial Relationship
The County pays each corporation a monthly
administration fee and, in addition, bonuses for achieving certain
goals (e.g., meeting certain patient satisfaction survey scores,
complying with accreditation requirements, or maintaining an
average volume of patient visits that meet Medicare productivity
guidelines).
Before each fiscal year, each Clinic negotiates an
annual operating budget with the County. The operating budget
includes all projected expenses that require the County’s
reimbursement, including employee payroll projections. The
County must approve the operating budget. All expenses are
reported to the County in a monthly financial report. The County
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determines from these monthly reports when supplemental
funding for additional expenses is necessary.
The County owns all revenues and accounts
receivable that the Clinics generate. It establishes all fees for
services provided and handles billing. After the County collects
the revenues from the Clinics, it uses those revenues to cover the
Clinics’ expenses. If the revenues are insufficient to cover a
Clinic’s expenses, the County advances funds to cover the
remaining expenses. One medical director testified that when
requesting advance funds, he must “justify each” request. Each
Operations Agreement sets a maximum annual amount of
“additional operating capital” that is “necessary to meet [Clinic]
operating expenses.” If a Clinic’s average cash balance exceeds
the average monthly operating costs, the County may recoup
excess cash by withholding revenue or requiring the Clinic to
return funds.
The County pays some expenses directly, including
expenses to maintain the facilities, furnishings, medical supplies,
and equipment. It also pays for medical malpractice, general
liability, and workers’ compensation insurance.
Clinic Management
The Operations Agreements state that the private
medical corporations “shall manage [Clinic’s] day-to-day
activities” and provide a “sufficient number of physicians and
staff.” The corporations have the authority to hire, promote,
train, discipline, schedule, and set the compensation of Clinic
employees.
VCMC and the Clinics are collectively accredited by
the Joint Commission on Accreditation of Healthcare
Organizations. VCMC has developed several policies and
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procedures that track the Joint Commission’s standards and
ensure compliance with these standards. The Operations
Agreements require Clinic employees to comply with the Joint
Commission’s accreditation standards, VCMC’s code of conduct,
and over one hundred VCMC policies and procedures.
The County trains Clinic employees on VCMC’s
policies and procedures, which include patient care procedures,
emergency protocol, and administrative procedures. Clinic
employees have access to VCMC’s policies through a link on their
computer desktop. New hires must attend a VCMC orientation
session where they are provided a VCMC protocol and procedure
handbook and information on other County policies, such as work
place harassment and substance abuse policies. Clinic employees
are required to follow other VCMC rules such as dress code and
cell phone policies.
Clinic employees are required to attend an in-person
quality control training session once a year. At these sessions,
the County trains Clinic employees on performing day-to-day job
duties, such as administrating a urine test, collecting blood
samples, and cleaning the machines used for blood samples.
Clinic employees are also required to complete online compliance
training, including a test at the end of each training session.
The County periodically reviews the work of Clinic
employees to ensure compliance with County standards. A
County employee will perform “audits” by inspecting a Clinic
employee’s work space, asking questions regarding various
procedures, and requiring the employee to demonstrate their
ability to perform certain tasks. Clinic employees can be
disciplined if they do not follow VCMC policies and procedures. If
the County believes a Clinic employee’s work is deficient, the
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County will bring the issue to the attention of the medical
director.
Clinic employees are required to obtain and wear a
badge which identifies them as being “affiliated with VCMC.”
They are required to use the VCMC hospital forms for patients,
the County’s in-house mail and e-mail system, and the County’s
information technology (IT) systems for patient services.
The County requires Clinic employees to perform
many clerical and administrative tasks. The County requires
Clinic employees to produce reports on payroll, monthly data (on
patient visits, clinic procedures, and gross revenue), monthly
physician time studies for Medicare, monthly financial/account
statements, and other reports. Upon request, Clinic employees
must perform “any other tasks as required for operation of” the
Clinics.
Under the Operations Agreements, the Clinics are
required to cooperate with other Clinics to ensure minimum
staffing levels are maintained. When a Clinic employee is
transferred from one Clinic to another, the corporations must
follow inter-Clinic billing protocols to reimburse that employee’s
compensation. The Clinics must all participate in a “shared call”
system with VCMC hospitals for “physician coverage and
inpatient hospital services.” Several Clinic employees testified
they worked “interchangeably” at various Clinics and VCMC
hospitals whenever there was a staffing need.
Reporting to Federal and State Agencies
The County submitted Medi-Cal provider
applications to the State of California on behalf of each Clinic.
The County identified itself as the “Legal name of applicant or
provider” and identified the Clinics’ name as the “Business
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name.” Under the subsection entitled “Subcontractor,” the
application asks: “Does the applicant/provider contract or
delegate any management functions or responsibilities for
providing [health care services]?” The County marked “no.” The
County answered the questions in the application under penalty
of perjury.
The County also submitted Medicare Enrollment
Applications to the federal government on behalf of each Clinic.
The application asks the County to list any “managing
organizations,” that “conduct[] the day-to-day operations of the
provider.” The application clarifies that managing organizations
“need not have an ownership interest in the provider in order to
qualify.” The County represents that it has management
responsibilities over each Clinic and does not identify any other
managing organizations. The application also asks the County to
list all “managing employees,” which include “general managers,
business managers, administrators, directors or other individual
who exercises operational or managerial control over . . . the day-
to-day operations of the provider.” The County listed only a
County administrator as a “managing employee.”
The County also applied to designate the Clinics as
“Federally Qualified Heath Centers” (FQHC), which allows the
County to receive a higher reimbursement rate for medical
services and apply for federal grant funding. (42 U.S.C. §
254b(e)(1), (5).) Only a public or a nonprofit entity may apply for
FQHC designation. (42 U.S.C. § 254b(e)(1)(A).) In the County’s
FQHC application, the County represents that the Clinics are
“integrated into” the County’s management structure, and it
provides an organizational chart showing the Clinics’ integration
7
into the County’s healthcare system (as part of VCMC’s
Ambulatory Care Clinics).
PROCEDURAL HISTORY
SEIU filed with the County a petition for recognition
of its representation as a bargaining unit of Clinic employees.
The County refused to process the petition on the grounds that it
was not the “employer, joint or otherwise, of the persons SEIU
purports to represent.” SEIU subsequently filed an unfair
practice charge with PERB.
General Counsel for PERB filed a complaint, alleging
the County violated the MMBA (§§ 3502, 3506, 3507, subd. (c),
3507.1, subd. (c)) when it refused to process SEIU’s petition.
Following a hearing, the ALJ issued a proposed decision, finding
that PERB lacked jurisdiction over the matter because the
County was neither a single-employer nor a joint-employer. The
ALJ dismissed the unfair practice charge.
SEIU filed with PERB a statement of exceptions to
the ALJ’s proposed decision. SEIU argued the ALJ erred when it
determined the County was not an employer of Clinic employees.
In a two-to-one decision, the PERB panel reversed the ALJ’s
proposed decision. The majority found that SEIU “met its burden
under the single employer doctrine and, alternatively, under the
joint employer doctrine.” PERB ordered the County to process
SEIU’s petition to represent Clinic employees.
The County filed this petition for a writ of
extraordinary relief from PERB’s decision pursuant to section
3509.5, subdivisions (a) & (b), which allows “any charging party
. . . aggrieved by a final decision . . . [of PERB] in an unfair
practice case” to file a petition for a writ of extraordinary relief
8
“in the district court of appeal having jurisdiction over the county
where the events giving rise to the decision or order occurred.”
DISCUSSION
Under the MMBA, “public employees shall have the
right to form, join, and participate in the activities of employee
organizations . . . for the purpose of representation on all matters
of employer-employee relations.” (§ 3502.) “No public agency
shall unreasonably withhold recognition of employee
organizations,” and must “grant exclusive or majority recognition
to an employee organization” based on a showing that a majority
of the employees desire representation. (§§ 3507, subd. (c),
3507.1, subd. (c).) The MMBA defines a “‘public employee’” as
“any person employed by any public agency.” (§ 3501, subd. (d).)
A “‘public agency’” includes “every town, city, county, city and
county[,] and municipal corporation.” (§ 3501, subd. (c).)
Here, the County does not dispute it is a public
agency under the MMBA (§ 3501, subd. (c)). However, it
contends that PERB has no jurisdiction because the County is not
an employer within the meaning of the MMBA (§ 3501, subd. (d)).
We disagree.
Standard of Review
“A complaint alleging a violation of [the MMBA] . . .
shall be processed as an unfair practice charge by [PERB].” (§
3509, subd. (b); PERB Regulation No. 32603, subd. (g).) PERB
has the “exclusive jurisdiction” to initially adjudicate an unfair
practice charge under the MMBA. (§§ 3509, subd. (b), 3541.3;
Boling v. Public Employment Relations Board (2018) 5 Cal.5th
898, 911 (Boling).) PERB is “‘“presumably equipped or informed
by experience to deal with a specialized field of knowledge, whose
findings within that field carry the authority of an expertness
9
which courts do not possess and therefore must respect.”
[Citation.]’ [Citation.]” (Boling, at p. 911.)
We defer to PERB’s legal determinations unless they
are “‘clearly erroneous.’” (Boling, supra, 5 Cal.5th at p. 912.) We
review PERB’s factual findings for substantial evidence. (Ibid.; §
3509.5, subd. (b).) We “‘“do not reweigh the evidence. If there is
a plausible basis for [PERB]’s factual decisions, we are not
concerned that contrary findings may seem to us equally
reasonable, or even more so. [Citations.]”’” (Boling, at p. 912.)
Joint-employer Doctrine
The County contends PERB erred when it
determined the County was a joint employer of Clinic employees.
We disagree.
A joint-employer relationship exists when “‘two or
more employers exert significant control over the same
employees—where from the evidence it can be shown that they
share or co-determine those matters governing essential terms
and conditions of employment.’” (United Public Employees v.
Public Employment Relations Bd. (1989) 213 Cal. App. 3d 1119,
1128, adopting the federal test in NLRB v. Browning-Ferris
Industries, Inc. (3d Cir. 1982) 691 F.2d 1117, 1124.) A joint-
employer relationship is established if an entity retains the right
to “‘control both what shall be done and how it shall be done,’”
such that it retains the “‘right to control and direct the activities
of the person rendering service, or the manner and method in
which the work is performed.’ [Citation.]” (Service Employees
Internat. Union v. County of Los Angeles (1990) 225 Cal. App. 3d
761, 769.) Whether a joint-employer relationship exists is a
factual determination that we will uphold if supported by
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substantial evidence. (Poncio v. Department of Resources
Recycling & Recovery (2019) 34 Cal.App.5th 663, 673.)
Substantial evidence supports PERB’s finding that
the County was a joint-employer of Clinic employees. The
County exercised control over compensation and staffing
decisions. Although the medical directors directly hire Clinic
employees and set their salaries, the County has ultimate control
over the Clinics’ financial resources that pay for compensation
and staffing. Clinic employees’ salary and benefits are part of a
Clinic’s annual operating budget, which must be approved by the
County. The County sets the fees for the medical services
provided by the Clinic and owns all revenues and accounts
receivable that a Clinic generates. From that revenue, the
County pays the Clinic’s operating costs and covers any
shortfalls. The County is also responsible for other financial
aspects of the Clinics’ operation, such as obtaining grants and
paying bonuses and administration fees.
Evidence regarding the “shared call” system with
other Clinics and VCMC hospitals show the County exercised its
right to control staffing decisions. The Operations Agreements
required the Clinics to share staff as needed with other Clinics
and VCMC hospitals to ensure minimal staffing levels are
maintained. The Operations Agreements provided a protocol for
reimbursement of employee compensation when an employee is
transferred from one Clinic to another. Several Clinic employees
testified they were required to work “interchangeably” in other
Clinics and VCMC hospitals whenever needed.
The County had a right to control patient care and
personnel policies, training, and other conditions of employment.
The Operations Agreements required Clinic employees to comply
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with VCMC’s policies and procedures and code of conduct. Clinic
employees were required to attend VCMC trainings when hired
and throughout the course of their employment. VCMC policies,
rules, and training requirements govern the manner and method
in which an employee must perform day-to-day patient care
procedures and administrative tasks. Other rules relating to
employee conduct, work place harassment, and dress codes affect
the conditions of their employment. Clinic employees can be
disciplined if they do not follow these policies or rules.
The evidence shows the County enforces its work
performance standards. The County performs in-person quality
control training sessions, online compliance training sessions,
and audits. The County also enforces its minimum quality
standards by bringing deficient work to the attention of the
medical directors.
The County controls other terms and conditions of
employment. Clinic employees are required to wear a badge that
identifies them as affiliated with VCMC; use VCMC mail, e-mail,
and IT systems; and perform various administrative tasks on
behalf of the County. The County provides the facilities and
equipment the employees use in performing their day-to-day
tasks, but places restrictions on the use of the facilities by Clinic
employees and provides that the County may use the facilities for
any purpose.
Finally, the sworn statements on various federal and
state application forms show the County retains a right to control
Clinic operations. In its Medi-Cal and Medicare applications, the
County reports that it has management responsibilities over
Clinic operations. Organizational charts submitted in the
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County’s FQHC application show that the Clinics are “integrated
into” the County’s “management structure.”
In sum, substantial evidence supports the County
retained the right to control the “‘manner and method in which
[Clinic employees’] work is performed.’ [Citation.]” (Service
Employees Internat. Union v. County of Los Angeles, supra, 225
Cal.App.3d at p. 769.) PERB did not err when it found the
County was a joint-employer.2
DISPOSITION
The Public Employment Relations Board decision is
affirmed. Respondent and real party in interest are awarded
costs.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
2 Because we conclude PERB properly found the County
was an employer under the joint-employer doctrine, we need not
decide whether the single-employer doctrine applies.
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Public Employment Relations Board
______________________________
Leroy Smith, County Counsel, Matthew A. Smith,
Assistant County Counsel, for Petitioner.
J. Felix de la Torre, General Counsel, Wendi L. Ross,
Deputy General Counsel, Daniel Trump and Joseph W. Eckhart,
Senior Regional Attorneys, for Respondent.
Weinberg, Roger & Rosenfeld, Monica T. Guizar and
Christina L. Adams, for Real Party in Interest.