PERB Describes Bargaining Obligation When Medical Staff Bylaws are Amended to Alter Working Conditions

In an April 2024 decision, the Public Employment Relations Board (“PERB”) found the County of Santa Clara violated the Meyers-Milias-Brown Act when it refused to meet and confer before heightening the credentialing requirements to work in the County’s hospital system. PERB’s ruling illustrates when an employer has a duty to bargain over the decision and effects of a change in working conditions.

The County owns Santa Clara Valley Healthcare (SCVH), and California law requires SCVH to have an “organized medical staff,” which means providers, like physician assistants, have certain self-government rights through their medical organizations. The medical staff organization’s bylaws must include standards and criteria for their medical staff.

In response to a sustained grievance concerning the required certification of a County physician assistant, the County proposed revisions to the medical staff bylaws, subject to the approval of the Board of Supervisors. The proposed revisions would require physician assistants to both hold a license and other credentials. Prior to the adopted revisions, physician assistants had “practice privileges”—permission to practice at the County’s hospital system—if they held a license, certificate, or other credentials. During the one meeting that took place between the County and the union, the County made clear that any physician assistant who did not meet the revised eligibility requirement could no longer work for the County. After the one meeting with the union, the County repeatedly refused to bargain in advance of the Board of Supervisors’ vote on the bylaw revisions.

The main questions before PERB were (1) whether the County had a duty to bargain over the decision; (2) the scope of bargainable effects; and (3) the appropriate remedy.

On question one, PERB found that practice privileges, like job qualifications, were within the scope of representation and the County had a duty to bargain over the decision. The County argued that because a medical staff organization must have autonomy in crafting standards of patient care, the County had no discretion over practice privilege standards, and therefore no duty to bargain.  PERB rejected the County’s argument, holding that the employer “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.” PERB made clear that the County had to bargain to the extent of its discretion, as any change to the medical staff bylaws would be subject to the Board of Supervisors’ approval. The Board of Supervisors had the authority to reasonably withhold approval of revisions to the bylaws, so the union should have had the opportunity to discuss with the County any reasons why the Board of Supervisors could reasonably withhold approval absent adjustments.  Instead, the County flatly refused to negotiate.

For question two, the County admitted it had a duty to bargain some effects, including topics related to employment consequences for loss of practice privileges, but failed to comply with that duty. The County sought to exclude some bargainable effects, such as mechanisms for ascertaining whether a physician assistant meets the eligibility standards, claiming that a medical staff organization must decide such mechanisms. PERB disagreed, reasoning that in bargaining, a party may make a proposal that is contingent on the other attempting in good faith to persuade a third party to take a specified action. The medical staff organization and the County Board of Supervisors are required to collaborate with one another, so PERB found no basis to impose any artificial limits on the types of proposals the union could make pertaining to the effects of changing practice privilege standards.

Finally, on the third question, PERB ruled the County must compensate physician assistants for all costs associated with licensing and testing, to the extent that the bylaw revision materially increased such costs. PERB explained that appropriate remedies to the union include compensation for increased bargaining and representation costs, resource diversion, or waste of resources resulting from an unlawful refusal to bargain, so long as the damages are reasonably feasible to estimate. Further, the County cannot take any adverse action against represented physician assistants based on their failure to meet the revised bylaws unless the County has bargained in good faith.

This decision establishes a decision and effects bargaining obligation when “Medical Staff Bylaws” are amended in a way that affects workers’ working conditions. WRR represented the union in this case.

For more information, contact your labor law counsel.