County of San Joaquin v. Public Employment Relations Bd. ( 2022 )

Filed 9/7/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
COUNTY OF SAN JOAQUIN, C094069
Petitioner, (Case No. SACE1141M)
v.
PUBLIC EMPLOYMENT RELATIONS BOARD,
Respondent;
CALIFORNIA NURSES ASSOCIATION,
Real Party in Interest.
ORIGINAL PROCEEDING: petition for writ of review.
Sloan Sakai Yeung & Wong, Jeff Sloan, Justin Otto Sceva, and Madeline Miller for
Petitioner.
J. Felix De La Torre, Wendi L. Ross, Joseph W. Eckhart, and Brendan P. White, for
Respondent.
Weinberg, Roger & Rosenfeld, Kerianne R. Steele and Corey T. Kniss for Service
Employees International Union, Local 1021, as Amicus Curiae on behalf of Respondent.
Nicole J. Daro, Eric J. Wiesner, and Anthony J. Tucci, for Real Party in Interest.
Leonard Carder, Arthur Liou and Julia Lum for American Federation of State,
County and Municipal Employees, Local 3299; University Professional and Technical
Employees, Communication Workers of America, Local 9119 on behalf of Respondent and
Real Party in Interest.
1
The County of San Joaquin (County) filed a petition for writ of review relief in this
court following a decision of the Public Employment Relations Board (Board), in which the
Board found the County interfered with and discriminated against the protected activity of
the California Nurses Association (Nurses) and its registered nurse members (members).
Specifically, the Board found the County’s policy prohibiting members from returning to
work after a noticed strike based on the County’s contract with a strike replacement
company containing a minimum shift guarantee for replacement workers was conduct
inherently destructive to protected activity. The Board then announced and applied a new
test providing for a defense to the County’s conduct of threatening and implementing the
policy and determined the County could not meet the standard set forth in the test. The
Board also found the County’s refusal to permit members from using accrued leave for the
time the members were prohibited from returning to work and the County’s determination
the absences were unauthorized, thereby subjecting members to discipline, was conduct
inherently destructive to protected activity. Accordingly, the Board ordered several
remedies, including that the County allow members to use accrued leave for the time they
were prohibited from returning to work and for similar absences in the future.
We granted the County’s petition for writ of review relief and issued a writ of review.
The County challenges several of the Board’s legal, factual, and remedial findings. After
considering all of the briefs filed in this case, we affirm the Board’s decision in all respects.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Strike
The County is a public agency within the meaning of the Meyers-Milias-Brown Act
(Gov. Code,1 § 3500 et seq.) (Act) and the Board’s regulations. As one of its functions, the
County operates the San Joaquin General Hospital (Hospital). The Hospital is a general
1 Undesignated section references are to the Government Code.
2
acute care hospital that includes an emergency department, a neonatal intensive care unit,
and the County’s only trauma center. The Hospital serves more indigent patients than any
other hospital in the County and provides inpatient care to incarcerated patients in secure
wards. The County also operates outpatient clinics in other locations within the County’s
boundaries. In the first half of the 2019 to 2020 fiscal year, the Hospital lost substantially
more money than expected. Nurses is an employee organization within the meaning of the
Act and the exclusive representative of a bargaining unit comprised of more than 700
members working at the Hospital and clinics within the County’s boundaries.
The County and Nurses were involved in prolonged labor negotiations to bargain for
a successor agreement to the memorandum of understanding between them. Between June
and August 2019, the County sought proposals from three companies to provide
replacement workers in the event of a strike. In October 2019, the County entered into a
contract with Healthsource Global Staffing (Healthsource) to provide replacement workers
in the event of a strike by Nurses and/or by Service Employees International Union Local
1021 (Service Employees Union), which represented technical workers and other employees
of the Hospital. As part of the strike replacement contract, the County agreed to “ ‘a
minimum of what amounts to five (5) twelve-hour shifts (60 hours) for each Replacement
Staff that commences travel to the Destination City. . . .’ ” Further, “ ‘[o]rientation provided
to the Replacement Staff [was] billed at applicable Compensation Fee rates and [did] not
count toward this minimum number of billable hours.’ ”2
In January 2020, the County and Nurses reached an impasse in bargaining for a new
memorandum of understanding, and postimpasse mediation did not resolve the impasse.
Thus, on February 24, 2020, Nurses notified the County of its intention to strike at 7:00 a.m.
on March 5, 2020, until 6:59 a.m. on March 7, 2020.
2 Further details pertaining to the County’s negotiations of this contract will be
recounted post.
3
Thereafter, the County filed an unfair practice charge and request for injunctive relief
with the Board against Nurses to enjoin essential employees from striking. Following
mediation, Nurses and the County entered into a settlement agreement on February 28,
2020, whereby Nurses exempted multiple members from participating in the strike because
those members were essential to delivering health care services. In advance of the strike,
the County canceled some elective surgeries and outpatient clinic visits, reduced its intake
of trauma patients, and otherwise reduced its overall number of patients. The County also
learned that many employees represented by the Service Employees Union would strike in
sympathy with Nurses.
On March 3, 2020, the chief executive officer of the Hospital, David Culberson
(Culberson), asked the San Joaquin County Board of Supervisors to retroactively approve
the contract with Healthsource and the allocation of $4 million for replacement workers.
The San Joaquin County Board of Supervisors approved Culberson’s request.
On March 4, 2020, Culberson, sent a memorandum to “all [Nurses] Unit Members”
regarding the date striking members could return to work (Culberson memo). The
Culberson memo informed striking members that to ensure the County’s ability to deliver
“necessary health services without interruption, including emergency services, the County
has contracted with an outside company for replacement workers during the strike period.
The company with which the County has contracted, however, will only agree to provide
such replacement workers for a full five day period, and the County has therefore been
forced to agree to pay a minimum of five full days for such workers[.] [¶] Given this
unavoidable commitment, please know that [Nurses] unit members who participate in the
strike will not be able to return to work at the end of the strike period as noticed by [Nurses].
Instead, such participating employees will not be accepted back at work until their first
shift on or after Tuesday, March 10 at 7 a.m., unless called into work at an earlier time
by [the Hospital] management.”
4
The Culberson memo also informed striking members they might be notified not to
return to work because of low patient census, at which time members would be furloughed
pursuant to the memorandum of understanding between the County and Nurses.
The memorandum of understanding between the County and Nurses sets forth
furlough procedures in the event of “[f]luctuations in patient census” to accommodate
“lower staffing needs.” In such an event, “the Hospital Director or designee may furlough
any regular or contract employee . . . for up to thirty six (36) hours during any fiscal year,”
subject to certain conditions. Enumerated as part of those conditions is that the Hospital
“will make every attempt to seek volunteers before imposing mandatory furloughs” and
employees will be called off in a particular order related to their employment status.
Further, “[i]f an employee is notified that he or she is being furloughed and is then asked to
report to work for the same shift, the employee will be guaranteed a full shift whether or not
the employee works a full shift. Such an employee may not be ordered to return to work,
and not required to be available if called.” Finally, “[members] who are furloughed may use
up to 24 hours of vacation, compensatory time off or holiday hours to equal a full shift’s
pay.”
On March 5, 2020, the strike began. During the strike, and for three days after the
strike, the County maintained a lower patient census, such that the number of patients was
reduced from 150 patients to 120 patients. During the strike, the County continued to
operate the Hospital by using Healthsource replacement workers, traveling or registered
nurses already contracted to work for the County before the strike, supervisors and
managers, and two categories of members -- those who were exempted from the strike
pursuant to the settlement agreement and those who chose to work during the strike. The
County did not have sufficient notice to hire replacements for employees represented by the
Service Employees Union who chose to participate in a sympathy strike; however, the
County was able to cover the sympathy strikers’ shifts by using Healthsource replacement
5
workers, supervisory personnel, and nonstriking employees represented by the Service
Employees Union and Nurses.
On March 7, 2020, the strike ended, and members attempted to return to work.3
Between March 7 and March 9, 2020, the County continued to employ Healthsource
replacement workers and barred most members who participated in the strike from returning
to work. The County did not bar any employees represented by the Service Employees
Union from returning to work. During this time, Nurses and multiple members believed the
County had furloughed members under the memorandum of understanding, leading some
members to claim vacation, compensatory time off, or holiday hours for the time they were
barred from returning to work. Ultimately, the County determined members had not been
furloughed under the memorandum of understanding and instead the County marked on
members’ time cards that the leave was unauthorized. During the three days after the strike,
when most members were barred from returning to work, the County attempted to call back
to work some barred members due to understaffing. Many of the members who were called
back refused to return to work, invoking the provision of the memorandum of understanding
that permitted furloughed members to refuse callback requests.
On April 9, 2020, Nurses filed a statement of amended charge with the Board against
the County. On May 18, 2020, the Board issued a complaint against the County. The
complaint alleged that on March 5 and 6, 2020, members exercised rights guaranteed by the
Act by participating in a two-day strike. The complaint further alleged the County took
adverse action against Nurses and its striking members which constituted discrimination
against and interference with protected conduct, as well as a unilateral change in policies
contained in the memorandum of understanding related to the furlough procedures. In its
3 Further details pertaining to members’ efforts to return to work will be recounted
post.
6
answer, the County denied its conduct amounted to adverse actions and raised several
affirmative defenses to the allegations.
II
The Administrative Hearing
A
Contract Negotiations
Chief nursing officer Belva Snyder testified at the administrative hearing on behalf of
the County regarding the process she and her team undertook when selecting a strike
replacement company. Snyder testified she had limited experience with strikes; specifically,
she had been a hospital administrator during a threatened strike that had never materialized.
As it pertained to the successive memorandum of understanding between the County and
Nurses, Snyder was part of the County’s negotiating team and was present during
negotiation sessions. By June 2019, the County and Nurses had been negotiating for quite
some time and each party had brought very different proposals to the table without any
resolution. Thus, in June 2019, Snyder started preparing for an anticipated strike by
researching strike replacement companies. She had her team contact three companies --
Maxim, Autumn, and Healthsource. In Snyder’s experience, the County preferred multiple
proposals (typically, at least three) before contracting with any given company. Snyder did
not contact any other strike replacement company and was unaware of any other companies
in the field.
As it pertained to Snyder’s search for a strike replacement company, Snyder wanted
to find a company that would be able to provide the diversity and number of employees
necessary to replace both the Service Employees Union and Nurses in the event the unions
held a strike at the same time. She also wanted a vendor that was fiscally reasonable
considering the “organization’s financial situation.” Further, Snyder wanted the
replacement workers to have the skill sets needed to replace the various members in the
different departments of the Hospital. It was Snyder’s understanding she would orient
7
replacement workers to the Hospital’s facility and procedures, but not to train them
regarding patient care.
The County had a current and long-standing contract with Maxim, a company that
provided traveling nurses and was not a strike replacement company. Traveling nurses are
typically used to fill vacancies while recruiting for permanent replacements or if there is a
surge in patient census. Snyder removed Maxim from consideration early in the process
because it could not provide replacements for employees represented by the Service
Employees Union and because the Hospital was already having trouble with Maxim
providing sufficient staffing for traveling nurse positions. Maxim did, however, submit a
proposal to the County and required a minimum shift guarantee for its replacement workers
of 48 hours, or four shifts of 12 hours, for each replacement nurse in the event of a two-day
strike.
Snyder and her team also contacted Autumn. Autumn offered a minimum shift
guarantee of 48 hours for a two-day strike as well. Autumn submitted a proposal indicating
that for each nurse ordered through their service, the County would be assessed a $1,200
charge. Then, the County would be charged anywhere from $145 to $180 per hour for each
replacement nurse. Snyder decided not to enter a contract for Autumn’s services because it
was too expensive and because she had never worked with Autumn, making her uncertain
about the level of service it could provide.
Finally, Snyder and her team contacted Healthsource, with whom the County had a
prior relationship during a threatened 2016 Nurses’ strike. While the 2016 strike never
materialized, the County looked favorably on its interactions with Healthsource. Snyder
was not yet an employee of the County at the time of the threatened 2016 strike, but she
relied on the assertions of other Hospital staff that Healthsource had a good reputation. In
Snyder’s conversations with Healthsource representatives, the representatives were
confident they could provide the needed replacement workers for members of Nurses and
for employees represented by the Service Employees Union. Healthsource charged $400
8
per replacement worker ordered, which it was able to do because the County signed a
contract with it early in the strike preparation process. Healthsource required each
replacement nurse to work a minimum of 60 hours, or five 12-hour shifts, for a two-day
strike and receive one day of orientation not included as part of the minimum shift
guarantee. Healthsource charged between $118 and $125 per hour for each replacement
nurse. Snyder decided to enter a contract with Healthsource because it was overall less
expensive than Autumn, Healthsource could confidently provide the broad range of
replacement workers requested, and the County had a prior favorable experience with
Healthsource.
After deciding to enter a contract with Healthsource, Snyder negotiated the substance
of the contract and became aware of several things. First, Healthsource’s minimum shift
guarantee of 60 hours was a standard term in its contracts for two-day strikes. She was told
this when she verbally inquired whether Healthsource could lower the 60-hour minimum.
She did not ask about the minimum in writing or try to negotiate the term beyond being told
it was a standard contract term. Snyder was not aware that Healthsource had agreed to a
lower minimum shift guarantee in a contract with another hospital. Second, Healthsource
did not want its replacement workers to come into contact with members of the union they
would be replacing. To that end, Healthsource required the County to orchestrate the arrival
of the replacement workers. For example, when the replacement workers began work at the
start of the strike, they entered the Hospital through the rear entrance and members were
required to exit the Hospital through the front entrance. Healthsource made an exception to
this rule to allow replacement workers to work alongside essential employees, i.e., members
who were enjoined from striking pursuant to the settlement agreement. Third, Healthsource
required the County to agree to an exclusivity provision, meaning only Healthsource would
provide the strike replacement workers. Healthsource made an exception to this provision
for traveling nurses supplied by Maxim.
9
The contract between the County and Healthsource was entered into at the end of
October, at a time when Snyder did not know how long a potential strike would last. Before
doing so, Snyder negotiated to lower the interest rate for late or delayed payments. During
her administrative hearing testimony, Snyder could not recall whether she told Healthsource
representatives she had inquired with other companies regarding strike replacement
services.
Tabi Elbahou was vice president and general manager of Healthsource at the time it
entered into the contract with the County. He did not recall the County attempting to
negotiate over any term of the contract other than to lower the interest rate related to late or
delayed payments, although most of the negotiations involved his employee and not him.
Elbahou testified the County agreed to the standard contract language Healthsource offered,
which included a term for a 60-hour minimum shift guarantee. Healthsource typically
includes the provision so it can provide an aggressive and appealing compensation package
for replacement workers and attract the right clinicians. To the best of Elbahou’s
knowledge, Healthsource had entered into contracts with other hospitals with lower
minimum shift guarantees. He believed the lower minimums occurred when the strikes in
question were predicted to last fewer than three days; however, when shown a contract with
contrary language, Elbahou could not speak to the circumstances of that contract because it
was before he was employed with Healthsource. Elbahou testified that clients had tried to
negotiate lower minimum shift guarantees, but no testimony was given pertaining to the
outcome of those negotiations.
B
Poststrike Return To Work
Following the two-day strike, members attempted to return to work for the morning
shifts on March 7, 2020. Culberson, along with the Hospital’s security team, blocked
members from entering the Hospital. Culberson testified at the administrative hearing that
he told members shifts were adequately staffed, and they were not needed, except for a few
10
members who were permitted to return to work. Employees represented by the Service
Employees Union, on the other hand, were all permitted to return to work because
Healthsource replacement workers were not filling their positions. This was because the
Service Employees Union did not provide notice of its sympathy strike, thus Healthsource
could not prepare or deploy replacement workers for those striking employees.
Members asked Culberson whether he was furloughing them under the memorandum
of understanding. Culberson referred members to the Culberson memo. It was Nurses’ and
members’ understanding that members were being furloughed under the memorandum of
understanding. Culberson testified he was not clear about the reason members were being
ordered not to return to work and may have misspoke when speaking about the reasons
members were prohibited from returning to work. Culberson testified he never told
members they were not being furloughed under the memorandum of understanding.
Snyder testified it was her understanding the Culberson memo told striking members
they could not return to work because of the replacement workers and would possibly be
prevented from returning to work following the five-day period replacement workers were
at the Hospital because of low patient census. The decision to prevent members from
returning to work for the full five days replacement workers were contracted to work was a
financial decision because the County could not afford to have double staffing at the
Hospital. Snyder testified members were told they may be needed in the three-day period
after the strike while replacement staff was present because patient census could increase or
the Hospital could need members’ expertise. In that event, Snyder testified, the Culberson
memo informed members they would be called into work.
In the three days following the strike, Snyder determined she needed more nursing
staff in addition to the Healthsource replacement workers, essential employees, and
traveling nurses, which Healthsource allowed to continue working during its contract term
with the County. Indeed, the County had contracts with multiple traveling nurse companies
at the time of the strike and three-day overlap period. One reason staff was needed was
11
because essential employees enjoined from striking were not enjoined after the noticed
strike and could no longer be forced to work. Based on the determination that additional
nursing staff was needed, Snyder called multiple members to return to work. Many of those
members refused to return to work believing they could refuse under the furlough provision
of the memorandum of understanding. Snyder testified that, when calling staff to return to
work, she called nurses who possessed the skills to replace the essential employees who
were no longer compelled to work pursuant to the settlement agreement between Nurses and
the County. Thus, in the event she called a traveling nurse instead of a member, it was
because the traveling nurse possessed the skills necessary to replace an essential worker.
When filling out time cards, members attempted to use accrued leave for the three
days following the strike. The County denied members’ attempts to use accrued leave and
instead marked the leave as unauthorized. This was true regardless of whether the member
refused to return to work and applied to all members who had a shift scheduled for the days
following the strike when members were barred from returning to work. The County
decided not to honor members’ accrued leave requests because it would result in the County
paying two sets of staff. Members who were scheduled to be on standby were paid as
standby employees for the three days following the strike.
Unauthorized leave means a member was not present for work when scheduled to
work and the time card notation can be used as a basis for discipline. Because the leave was
unauthorized, some members did not accrue enough working time within the pay period to
entitle them to vacation or retirement benefits and their longevity pay raises were delayed.
III
The Board’s Decision
The Board issued its decision on April 12, 2021. The Board dismissed the unilateral
change claim alleged in the complaint, but concluded the County violated the Act and Board
regulations by discriminating against and interfering with Nurses’ and members’ protected
striking activity. To come to this conclusion, the Board applied the “well-established
12
interference and discrimination standards” to several adverse actions taken by the County.
These adverse actions were the County’s conduct of “threatening to disallow strikers from
work for multiple days after the strike, implementing that action, refusing to allow nurses to
use paid time off for the period following the strike in which they were barred from work,
and designating employees’ strike time and time following the strike as [unauthorized
leave].”4
The Board concluded the first two adverse actions pertaining to the County’s policy
to disallow striking members from returning to work for multiple days after the strike
amounted to conduct that was inherently destructive to protected striking activity. The
Board then recognized it had adopted the affirmative defense framework governing private
sector employers announced in NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26 [18
L.Ed.2d 1027] (Great Dane) to both interference and discrimination cases involving public
employers. The Board explained that it was applying this framework to the unique set of
facts pertaining to the County’s inherently destructive conduct. When applying this
standard, the Board reviewed “[f]ederal decisions [that] have repeatedly considered strike
replacement contracts with minimum [shift] guarantee provisions and, in a parallel line of
cases, partial lockouts featuring alleged discrimination against protected activity. [It
determined, t]hese decisions lay out neither a consistent analytic framework nor an approach
[the Board] f[ou]nd fully persuasive in interpreting the [Act].”
Thus, the Board formed a three-part test under which a public health care employer
that prohibits bargaining unit employees from work after a strike due to a minimum shift
guarantee for strike replacement workers could typically establish an affirmative defense.
The test requires a public health care employer to “prove that: (1) it made a good faith
4 The County later decided not to enforce the unauthorized leave designation as a basis
for discipline. The Board did not consider this a retraction of the adverse action because the
County’s decision occurred five months after the initial conduct, making the decision
untimely, and thus failing to meet the legal standard of a retraction.
13
effort in the marketplace to negotiate a strike replacement contract that would eliminate any
minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately
needed to agree to the minimum shift guarantee in order to maintain critical health care
services; (2) it barred employees from work only because such a contractual commitment
temporarily reduced available work opportunities, and it filled all remaining opportunities
without discriminating against employees based on whether they worked during the strike or
engaged in any other actual or perceived protected activity; and (3) it provided the
employees’ union with timely notice regarding any decision to guarantee replacement
workers a minimum work period or to modify the terms of such a guarantee, and if
requested, bargained in good faith over the potential effects on bargaining unit employees.”
Applying this test, the Board found the County could not avail itself of the
affirmative defense because it did not establish that it made a good faith effort to eliminate
the minimum shift guarantee or shorten it to the greatest degree possible, it granted
preference to members who did not strike when determining who worked after the strike,
and it failed to provide Nurses with adequate notice of Healthsource’s contracted minimum
shift guarantee.
The Board then analyzed whether the County interfered or discriminated against
protected rights when it refused to allow members to use paid leave for the period after the
strike or when designating the time during which they were barred from returning to work
as unauthorized leave. The Board determined the County did interfere with and
discriminate against protected activity and the County could not avail itself of the
affirmative defense outlined in Great Dane under either the inherently destructive standard
or the less burdensome comparatively slight standard because the County could not justify
its conduct with a valid business reason.
As a result of the Board’s findings, it determined the appropriate remedy was to
permit members to use paid leave for the period after the strike, even if members refused to
return to work when called to return. The Board found that while members were not
14
furloughed due to low patient census under the memorandum of understanding, members
were reasonably confused given Culberson’s statements, and members understandably
asserted rights under the memorandum of understanding to not return to work. Given the
policy that remedial orders should make injured parties whole and deter future interference
and discrimination, the Board found it necessary to order the County to allow members to
use accrued leave for the three days they were barred from work. The Board further
ordered, “[u]nless the parties agree otherwise, [the County was to] permit [members] to use
paid leave time for furloughs occasioned by a minimum shift guarantee in a strike
replacement contract to the same extent as is permitted for furloughs resulting from reduced
patient census or other business reasons.”
The County filed a petition for writ of review relief in this court. We granted the
petition and issued a writ of review.
DISCUSSION
I
The Act And Applicable Board Standards
It is the express purpose of the Act “to promote full communication between public
employers and their employees by providing a reasonable method of resolving disputes
regarding wages, hours, and other terms and conditions of employment between public
employers and public employee organizations.” (§ 3500.) Section 3506 provides: “Public
agencies and employee organizations shall not interfere with, intimidate, restrain, coerce or
discriminate against public employees because of their exercise of their rights under Section
3502.” Section 3502 provides in relevant part: “Except as otherwise provided by the
Legislature, public employees shall have the right to form, join, and participate in the
activities of employee organizations of their own choosing for the purpose of representation
on all matters of employer-employee relations.”
Section 3506.5, subdivision (a), similarly makes it unlawful for a public agency to
“[i]mpose or threaten to impose reprisals on employees, to discriminate or threaten to
15
discriminate against employees, or otherwise to interfere with, restrain, or coerce employees
because of their exercise of rights guaranteed by [the Act],” while subdivision (b) of the
same section makes it unlawful for a public agency to “[d]eny to employee organizations the
rights guaranteed to them by [the Act],” including the right of recognized employee
organizations “to represent their members in their employment relations with public
agencies.” (§ 3503; Los Angeles County Employees Assn. v. County of Los Angeles (1985)
168 Cal.App.3d 683, 687; County of Riverside (2010) PERB Dec. No. 2119-M at pp. 20-21,
23 [34 PERC ¶ 108].)
The Act parallels the National Labor Relations Act (29 U.S.C. § 151 et seq.), and
when interpreting the Act, it is proper to look to federal authority for its persuasive value.
(Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382,
391; Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 815.) Over the
years, the Board and California’s courts have developed several tests for analyzing
allegations arising under the above provisions of the Act and the virtually identical language
of other Board-administered statutes. (See, e.g., Campbell Municipal Employees Assn. v.
City of Campbell (1982) 131 Cal.App.3d 416, 424-425; Los Angeles County Superior Court
(2018) PERB Dec. No. 2566-C at p. 15 [43 PERC ¶ 1]; Novato Unified School District
(1982) PERB Dec. No. 0210-E at pp. 3-7 [6 PERC ¶ 13114]; Carlsbad Unified School
District (1979) PERB Dec. No. 0089-E at pp. 10-11 [3 PERC ¶ 10031] (Carlsbad).)
Broadly speaking, the various conduct proscribed by sections 3506 and 3506.5 may be
characterized as either interference or discrimination. (Los Angeles Superior Court, at pp.
24-25, fn. 17.)
When a charging party has established a prima facie case of interference or
discrimination, the burden shifts to the employer to prove an affirmative defense.5 (Great
5 The County does not dispute that Nurses established a prima facie case of
interference and discrimination as to its adverse actions of threatening and then
16
Dane, supra, 388 U.S. at pp. 33-34 [18 L.Ed.2d at pp. 1034-1035].) The Board applies the
same standard established in Great Dane for discrimination claims, but unlike Great Dane,
the standard is applicable to both interference and discrimination claims. (See Campbell
Municipal Employees Assn. v. City of Campbell, supra, 131 Cal.App.3d at p. 423 [applying
the affirmative defense announced in Great Dane to an interference claim].) If the harm to
employee rights is “ ‘ “comparatively slight,” ’ ” then the employer has the opportunity to
provide evidence that its actions were motivated by legitimate and substantial business
justifications. (Campbell, at p. 424, citing Great Dane, at p. 34 [18 L.Ed.2d at p. 1035];
Carlsbad, supra, PERB Dec. No. 0089-E at pp. 10-11.) If, on the other hand, the
employer’s conduct is “ ‘ “inherently destructive” of important employee rights, no proof of
antiunion motivation is needed . . . .’ ” (Campbell, at p. 423.) In those instances, the
employer’s conduct will be excused only on proof that it was occasioned by circumstances
beyond the employer’s control and that no alternative course of action was available.
(Carlsbad, at pp. 10-11.)
II
The Board’s Legal Determinations Were Not Clearly Erroneous6
The County raises several issues pertaining to the Board’s legal determinations.
These claims can be divided into three main issues: (1) the Board improperly determined
the County’s adverse actions of threatening and implementing a policy prohibiting striking
members from returning to work following the strike amounted to inherently destructive
implementing a delayed return-to-work schedule based on the hiring of strike replacement
workers with a minimum shift guarantee.
6 Because we conclude the Board’s decision was not clearly erroneous insofar as it
determined the County’s refusal to allow striking members to return to work amounted to
inherently destructive conduct and announced a new test applicable to public health care
employers who utilize strike replacement services, we need not address the County’s
appellate claim it would have prevailed under a comparatively slight affirmative defense
framework.
17
conduct; (2) the Board’s newly announced test pertaining to contracts with strike
replacement companies is illogical and not supported by Board precedent or federal
authority; and (3) the Board improperly determined the County’s failure to allow members
to use paid leave for the three days following the strike interfered with and discriminated
against protected activity.
When reviewing these claims, “[i]t is settled that ‘[c]ourts generally defer to [the
Board]’s construction of labor law provisions within its jurisdiction.’ ” (Boling v. Public
Employment Relations Bd. (2018) 5 Cal.5th 898, 911.) “ ‘We follow [the Board]’s
interpretation unless it is clearly erroneous.’ ” (Id. at p. 912; County of Los Angeles v. Los
Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 922.) “[W]ithin [the
Board]’s area of expertise, the deferential standard . . . applies to [the Board’s] legal
determinations even if based on undisputed facts.” (Boling, at p. 913.)
A
The Board’s Determination The County’s Delayed Return-To-Work
Policy For Striking Members Amounted To Inherently
Destructive Conduct Was Not Clearly Erroneous
When analyzing the degree to which the County’s conduct infringed on Nurses’ and
members’ protected rights as it pertained to the interference claim, the Board reasoned:
“Denying work opportunities following a strike significantly coerces protected rights by
discouraging employees from authorizing future strikes, and therefore gives rise to a robust
duty to narrowly tailor.” As it pertained to the discrimination claim, the Board further
stated: “if a hospital denied work opportunities to a greater degree for those who have
engaged in protected activity, such conduct is facially discriminatory, and the significantly
coercive impact rises to the level of inherently destructive.”
The County contends this determination was clearly erroneous because the Board’s
analysis failed to distinguish between conduct that is inherently destructive as opposed to
18
inherently discriminatory, failed to comply with its own precedent, and unjustifiably
rejected federal authority. We disagree.
The Board’s stated reasons imply it believed the County’s conduct was not merely
discriminatory, but that the County’s conduct resulted in a negative and prolonged impact
on Nurses’ willingness to strike as a means of bargaining in the future. Indeed, the Board
pointed to the fact that the County’s conduct discouraged future strikes. Although these
reasons do not state a standard or grapple with the tension between the definitions of
discriminatory and destructive conduct to the County’s liking, the County has not directed
us to any requirement the Board must first recite the rules it applies or engage in a specific
analysis before announcing its determinations. To require the Board to do so would elevate
form over substance and fall outside our review of whether the Board’s legal determinations
are clearly erroneous.
The County cites to Berkeley as stating the proper standard to apply when
determining whether an employer’s conduct was inherently destructive or comparatively
slight. (Regents of the University of California (Berkeley) (2018) PERB Dec. No. 2610-H
[43 PERC ¶ 100].) There, the Berkeley Board observed it had “never identified or explained
what distinguishes comparatively slight harm from inherently destructive conduct.”
(Berkeley, at p. 58.) The Berkeley Board then considered several of its own decisions and
National Labor Relation Board decisions. The Berkeley Board stated it defined inherently
destructive conduct as the “ ‘natural and probable consequence’ [of which] would be to
discourage the exercise of [protected] rights” or “would tend to discourage both present and
future protected activity.” (Berkeley, at pp. 58, 59.) As to National Labor Relation Board
decisions, the Berkeley Board observed federal authorities have defined inherently
destructive conduct as that which “typically ‘creat[es] visible and continuing obstacles to the
future exercise of employee rights’ or has ‘far reaching effects which could hinder future
bargaining.’ ” (Berkeley, at p. 86.) With this in mind, the Berkeley Board noted, the
National Labor Relations Board and federal courts “consider the temporal impact or likely
19
duration of [the conduct’s] effect on protected activity.” (Berkeley, at p. 86.) Indeed, the
National Labor Relations Board explained in International Paper Company “that, in
evaluating the temporal impact on protected rights, both ‘the severity of the harm suffered
by the employees for exercising their rights’ and ‘the severity of the impact on the statutory
right being exercised’ should be considered.” (Berkeley, at p. 87, quoting Int’l Paper Co.
(1995) 319 NLRB 1253, 1269.)
The Berkeley Board pointed to several examples of inherently destructive conduct
under both state and federal authority. These examples include: “conduct directed against a
union officer, steward or other employee representative, in his or her capacity as an
employee representative”; “employer speech . . . when it contains express or implied threats,
when it is likely to discourage employees from seeking union assistance, from using the
collectively-bargained grievance procedure, or from engaging in other protected conduct, or
when it conveys the message that collective bargaining is futile”; “an employer’s outright or
facial ban on union or other protected activity in non-working areas and during non-working
time”; “an employer’s prohibition against union officers representing bargaining-unit
employees in investigative meetings”; and “conditioning a pay increase on surrendering
protected rights.” (Berkeley, supra, PERB Dec. No. 2610-H at pp. 59, 60, 61, 87.)
Here, the Board considered the effect the County’s conduct had on future protected
activity and the severity of the County’s conduct on striking members. The Board
determined the County’s conduct was “significantly coercive.” The Board further found the
County’s conduct “discourag[ed] employees from authorizing future strikes.” (Italics
added.) Indeed, the County’s conduct targeted only those members who participated in the
strike, not those members who were exempt or crossed the picket line, whom the County
permitted to work in the days following the strike without qualification. By targeting only
striking members the night before the noticed strike with a delayed return-to-work schedule
that more than doubled the length of the strike, the County demonstrated to Nurses and
members that striking was not an effective means of bargaining, i.e., futile, because the
20
length of the strike and the consequences thereof were unavoidable and out of Nurses’ and
members’ control. This is similar to many of the examples cited by the Board in Berkeley.
(See Berkeley, supra, PERB Dec. No. 2610-H at pp. 59-61, 87.) Accordingly, the Board’s
determination complied with its precedent and was not clearly erroneous on this basis.
Similarly, the Board’s finding the County engaged in inherently destructive conduct
does not impermissibly deviate from federal authority. The County argues the Board
ignored Pacific Mutual Door Co. (1986) 278 NLRB 854 (Pacific Mutual Door) and nearly
every other subsequent National Labor Relations Board decision, finding employer conduct
similar to that of the County’s conduct was not inherently destructive. (Citing
Knightsbridge Heights Rehabilitation Care Center (2008) 352 NLRB 6; Sutter Roseville
Medical Center (2006) 348 NLRB 637; AMI/HTI Tarzana-Encino Joint Venture d/b/a
Encino Tarzana Regional Medical Center (2000) 332 NLRB 914 (Encino Tarzana); Harvey
Mfg., Inc. (1992) 309 NLRB 465.) But the Board addressed these federal decisions,
ultimately finding them inadequate considering the realities of public sector labor relations.
The Board is permitted to depart from federal law when it supplies a reasoned basis
particular to the context of California public sector labor law for doing so. (McPherson v.
Public Employment Relations Bd. (1987) 189 Cal.App.3d 293, 307-308; see Agricultural
Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 412-413.) Further, while the
Act parallels the National Labor Relations Act, federal authority is merely persuasive.
(Social Workers’ Union, Local 535 v. Alameda County Welfare Dept., supra, 11 Cal.3d at p.
391; Vernon Fire Fighters v. City of Vernon, supra, 107 Cal.App.3d at p. 815.)
Here, the Board diverged from federal authority given the differences between the
public employment relationships governed under the Act and the private employment
relationships governed under the National Labor Relations Act. Specifically, the Board
reasoned “[e]mployers and unions under our jurisdiction each face stricter limits on their use
of economic weapons than the restrictions governing their private sector counterparts. For
instance, it is an unfair practice for a public sector union strike to cause an imminent and
21
substantial threat to the public’s health or safety, and a union may lawfully strike pre-
impasse only based upon employer unfair practices. [Citations.] Employers, for their part,
cannot lock out employees or permanently replace strikers, among other restrictions.
[Citation.] These principles not only make inapposite private sector caselaw allowing an
employer to disfavor strikers if it has made permanent new arrangements during an
economic strike, but also aid us in discerning the boundaries that apply to the County’s
conduct, which bears characteristics akin to a lockout.”
The County argues these grounds are insufficient to justify the Board’s
characterization of its conduct as inherently destructive as opposed to comparatively slight
because there is no link between the stricter limits the Board has imposed in the past and the
County’s conduct here. Not so. The Board “bring[s] expertise and uniformity to the
delicate task of stabilizing labor relations.” (San Diego Teachers Assn. v. Superior Court
(1979) 24 Cal.3d 1, 12.) It is guided by the purposes of the Act: “(1) to promote full
communication between public employers and employees, and (2) to improve personnel
management and employer-employee relations. (§ 3500.)” (Claremont Police Officers
Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630.)
To fulfill this purpose, the Board has imposed limitations on the bargaining process
nonexistent in private labor relationships. For example, the Board has prohibited the
permanent replacement of striking workers. (Compare Fremont Unified School Dist. (1990)
PERB Dec. No. 1054-E at pp. 10-11 [14 PERC ¶ 21107] with Vessey & Co. v. Agricultural
Labor Relations Bd. (1989) 210 Cal.App.3d 629, 654, citing National Labor Rel. Bd. v.
Mackay Radio & T. Co. (1938) 304 U.S. 333, 345-346 [82 L.Ed. 1381, 1389-1390] [if a
private employer has permanently filled a position held by an economic striker before
receiving the striker’s offer to return to work, the striker is entitled to reinstatement as jobs
become available].) The Board has also prohibited employees from striking before an
impasse except on specified grounds. (Compare County of Trinity (United Public
Employees of California, Local 792) (2016) PERB Dec. No. 2480-M at p. 3 [40 PERC ¶
22
171] [a strike occurring before an impasse and completion of any required impasse
procedures creates a rebuttable presumption the union has breached its duty to bargain in
good faith] with N.L.R.B. v. Insurance Agents’ International (1960) 361 U.S. 477, 489-491
[4 L.Ed.2d 454, 463-466] [National Labor Relations Board lacks authority to limit a union’s
economic tools, including to prohibit it from striking before an impasse].) The Board has
further allowed employers to enjoin potentially striking employees from striking if the
absence of those employees would harm public health or safety. (City of San Jose v.
Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 611; County Sanitation
Dist. No. 2 v. Los Angeles County Employees’ Assn. (1985) 38 Cal.3d 564, 585-587.)
Given the restrictions in place for public labor relationships that do not exist for their
private counterparts, the County’s conduct would be perceived differently by a public-sector
employee subject to the additional restrictions in comparison to a private-sector employee
not subject to those restrictions. For example, a private-sector employee, like the employees
in Pacific Mutual Door, would not see the inability to return to work for 30 days following
the end of a strike inherently destructive to the right to strike when that same employee risks
permanent replacement, and the inability to return to work at all, by choosing to strike.
(Pacific Mutual Door, supra, 278 NLRB at pp. 855-856.) Similarly, a private-sector union
would not perceive the inability to promptly return to work inherently destructive if it too
had strong economic weapons, like the ability to call a strike before an impasse and for all
its members to strike regardless of their importance to the business’s functionality. Instead,
public-sector employees, like members here, face restrictions on when they can strike and
the detrimental effect of their strike, under the promise they can return to their jobs. This
playing field allows the risk public-sector employees undertake to be more predictable and
within their own control. Taking control from the public-sector employee by extending a
strike period (in this case more than doubling the strike period) serves to unpredictably
increase the risk the employee undertakes and undoubtedly discourages future striking
23
activity to a greater degree than on the federal landscape. Thus, the Board’s departure from
federal authority was justified.
Still, the County disagrees, arguing the Board misjudged the labor negotiation
playing field by failing to consider the narrow conditions necessary for an injunction and the
federal law excepting supervisors from the definition of employees, thus making supervisors
incapable of participating in a strike, unlike the case here. (See Santa Clara County
Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 537). We are not persuaded. As
discussed, the Board’s departure from federal law has a justified basis grounded in the
particulars of California public-sector labor law. Applying the clearly erroneous standard of
review, the County cannot demonstrate the Board acted in excess of its authority when
determining the County’s conduct was inherently destructive.
B
The Board’s Newly Announced Test Pertaining To Contracts With Strike
Replacement Companies In Public Health Care Settings Was Not Clearly Erroneous
The County contends the Board’s newly announced three-part test is clearly
erroneous by attacking all three parts of the test. Again, the test requires a public health care
employer to “prove that: (1) it made a good faith effort in the marketplace to negotiate a
strike replacement contract that would eliminate any minimum shift guarantee or shorten it
to the greatest degree possible, but it ultimately needed to agree to the minimum shift
guarantee in order to maintain critical health care services; (2) it barred employees from
work only because such a contractual commitment temporarily reduced available work
opportunities, and it filled all remaining opportunities without discriminating against
employees based on whether they worked during the strike or engaged in any other actual or
perceived protected activity; and (3) it provided the employees’ union with timely notice
regarding any decision to guarantee replacement workers a minimum work period or to
modify the terms of such a guarantee, and, if requested, bargained in good faith over the
potential effects on bargaining unit employees.”
24
1
Part One
As it pertains to the first part, the County argues the test’s assessment of an
employer’s “good faith effort in the marketplace to negotiate a strike replacement contract
that would eliminate any minimum shift guarantee or shorten it to the greatest degree
possible” necessarily views the hiring of a strike replacement company as inherently
destructive conduct and requires an employer to choose the contract with the shortest shift
guarantee without regard to countervailing interests. This is so, the County argues, despite
the Board’s exception stated within the test itself that the health care employer could
ultimately agree to a longer shift guarantee “in order to maintain critical health care
services.” We disagree.
The Board’s decision does not suggest it believed entering into a replacement
contract containing a minimum shift guarantee would always constitute conduct inherently
destructive to protected rights. The Board determined the County’s use of this type of
contract was inherently destructive. The decision lays out a three-part test to be read in light
of an inherently destructive or comparatively slight finding.
Comparatively slight conduct is excused upon evidence the employer’s actions were
motivated by legitimate and substantial business justifications. (Campbell Municipal
Employees Assn. v. City of Campbell, supra, 131 Cal.App.3d at p. 424.) But, when
considering comparatively slight conduct, the stronger the tendency to harm, the greater the
employer’s burden to show its business need was important and that it narrowly tailored its
actions or rules to attain that purpose while limiting harm to protected rights as much as
possible. (City of San Diego (2020) PERB Decision No. 2747-M at p. 36, fn. 19 [45 PERC
¶ 45].) Thus, while an inherently destructive standard requires the most tailoring,
comparatively slight conduct produces a sliding scale dependent on the level of harm
inflicted by an employer. This sliding scale is consistent with the first part of the test that
balances an employer’s good faith effort to eliminate minimum shift guarantees from
25
contracts with strike replacement companies against its ability to maintain critical health
care services. Indeed, the standards fit together well.
As the County argues, there are various concerns relevant to a health care employers’
efforts to hire replacement workers and maintain critical health care services, including the
quality of the replacement workers offered, a hospital’s prior experience with the
replacement company, the reliability of the replacement staff offered, and how the
replacement company otherwise serves a hospital’s needs. Under a comparatively slight
framework, these considerations are relevant to whether a hospital tailored its legitimate and
substantial business justifications to the need to hire replacement workers with a minimum
shift guarantee and is also relevant to an inherently destructive framework to demonstrate a
hospital acted out of a business necessity. The test announced by the Board allows for the
nuance the County demands and does not treat every employer who enters a strike
replacement contract containing a minimum shift guarantee as having committed inherently
destructive conduct. Nor does the test provide an illusory balancing of hospital interests.
The County also challenges the first part of the test by pointing to various National
Labor Relations Board decisions for the proposition that those decisions did not require
employers to shop around for a strike replacement company with a lower minimum shift
guarantee. (Citing Pacific Mutual Door Co., supra, 278 NLRB at p. 854; Sutter Roseville
Medical Center, supra, 348 NLRB at p. 637; Encino Tarzana, supra, 332 NLRB at p. 914;
Roosevelt Memorial Medical Center (2006) 348 NLRB 1016.) These decisions are the same
decisions the County cited when arguing the Board impermissibly diverged from federal
authority by declaring its conduct inherently destructive. For the same reasons we
concluded that divergence justified, i.e., the stricter limits on public employers’ use of
economic weapons compared to the restrictions governing their private sector counterparts,
we conclude the Board’s divergence from federal authority in this regard justified as well.
(See McPherson v. Public Employment Relations Bd., supra, 189 Cal.App.3d at pp. 307-
308.)
26
2
Part Two
The County challenges the second part of the Board’s test -- that a hospital-employer
is permitted to bar employees from work only when the minimum shift guarantee reduced
work opportunities, but must offer remaining work opportunities without discriminating
against those who participated in protected activity -- on the ground that federal law permits
employers to bar employees from work for the entire duration of the strike replacement
contract regardless of work opportunities in the period between the conclusion of a strike
and the end of the minimum shift guarantee. We agree with the Board that federal authority
pertaining to strike replacement contracts is confusing as to how an employer must offer
available work opportunities in the period following a strike and before the end of a
minimum shift guarantee.
The County relies again on Pacific Mutual Door, Sutter Roseville Medical Center,
Encino Tarzana, and Roosevelt Memorial Medical Center for its argument to undercut the
second part to the Board’s test. While the National Labor Relations Board broadly stated a
rule in Encino Tarzana, supra, 332 NLRB at pages 917-918, and Sutter Roseville Medical
Center, supra, 348 NLRB at page 642, purportedly from Pacific Mutual Door, supra, 278
NLRB at page 856, that until a minimum shift guarantee has been canceled or satisfied, an
employer has a legitimate and substantial business justification for delaying reinstatement of
strikers, that broad rule is not called into question here. Indeed, the Board adopted a
substantially similar standard in the second part of its test by recognizing minimum shift
guarantees as a justified reason to deny work opportunities to striking employees after a
strike has ended.
As it pertains to how an employer offers work opportunities not covered by
replacement workers in the period after a strike but before the end of the minimum shift
guarantee, Pacific Door and Encino Tarzana are silent. (Encino Tarzana, supra, 332 NLRB
at p. 918 [“The only reason that everyone who was scheduled during the Three-Day Period
27
was not needed was the lawful presence of the temporary replacements”]; Pacific Door,
supra, 278 NLRB at pp. 855-856.) “ ‘It is axiomatic that cases are not authority for
propositions not considered.’ ” (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)
Sutter Roseville Medical Center, on the other hand, supports the second part of the
Board’s test. There, the union “conceded the Respondent [Hospital] had a legitimate
business justification for retaining the employment agency-supplied temporary employees
for the period for which they were contracted” but the National Labor Relations Board
found it unlawful to fill available poststrike work opportunities with supervisors and
transferees not affiliated with the employment agency instead of striking employees. (Sutter
Roseville Medical Center, supra, 348 NLRB at pp. 645-647.) Similarly, in Roosevelt
Memorial Medical Center, a union notified a hospital of a strike prompting a hospital
administrator to hire replacement workers with a minimum shift guarantee. The union
thereafter called off the strike and the hospital administrator reworked the schedule to
integrate as many striking employees as possible to work as close to their prestrike hours as
possible. The National Labor Relations Board found the hospital’s conduct comparatively
slight and its unilateral scheduling (because the union refused to participate when requested)
lawful given the efforts taken by the administrator and the few employees who were
affected by the schedule change.7 (Roosevelt Memorial Medical Center, supra, 348 NLRB
at pp. 1017-1021.) Both of these cases stand for the proposition adopted by the Board that
strikers can be denied work based on a minimum shift guarantee, but to the extent work
7 Roosevelt Memorial Medical Center provides an example of how a hospital’s
conduct in hiring strike replacement companies with minimum shift guarantees can be
determined comparatively slight, as opposed to inherently destructive, and a hospital’s
efforts can potentially satisfy the Board’s three-part test. Indeed, the National Labor
Relations Board noted how the hospital administrator’s efforts showed potentially striking
members that striking was not futile or discouraged, and any detriment was felt temporarily
instead of targeted at future protected activity. (Roosevelt Memorial Medical Center, supra,
348 NLRB at pp. 1018-1019.)
28
opportunities arise, those opportunities must be offered on a nondiscriminatory basis. (See
also The Waterbury Hospital (1990) 300 NLRB 992, 1007 [when no permanent
replacements hired, employers must reinstate all employees (both strikers and nonstrikers)
equally].) Accordingly, the second part of the Board’s test is not clearly erroneous.
3
Part Three
The County challenges the third part of the Board’s new test -- that a hospital-
employer provide a union with timely notice of a decision to hire replacement workers with
a minimum shift guarantee, and if requested, bargain in good faith over the potential impacts
on bargaining unit employees -- on seven grounds.
First, the County argues it has the unquestionable right to prepare for a strike of its
health care employees, including by hiring replacement workers. Indeed, the County
argues, the hiring of replacement workers is similar to other strike preparations typically
performed confidentially. But the County fails to cite any legal authority for this
proposition. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [parties must “support each point
by argument and, if possible, by citation of authority” otherwise the contention is forfeited];
McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Moreover, notifying union members
of a minimum shift guarantee for replacement workers or bargaining with them regarding
the impacts of such a decision does not inhibit an employer’s ability to prepare for a strike
or otherwise minimize the disruption to an employer’s business. To be sure, the test does
not require an employer to secure its employees’ permission before entering into a contract
with a strike replacement company. In fact, communicating with employees about the
minimum shift guarantee with replacement workers would have minimized the disruption
here and established clear standards instead of the confusion that resulted from the surprise
minimum term and available leave designations. (See § 3500 [purpose of the Act is to
promote communication between employers and employees].)
29
Second, the County argues part three of the newly enacted test is clearly erroneous
because it imposes a one-sided duty on the employer to provide notice of a minimum shift
guarantee and to bargain with union members regarding the impacts of such a contract term.
To the County, a union would have an incentive to increase costs to the County under these
circumstances, and the County would have no comparable opportunity to minimize the
effects of the strike. Similarly, the County’s remaining arguments pertain to a union’s
incentive to use an employer’s newly enacted duty to bargain over strike impacts as a way to
file more charges before the Board and stall otherwise substantive and productive
negotiations between the union and the employer.
The County has failed to demonstrate how these policy considerations could lead to a
clearly erroneous conclusion on our part. Indeed, the County does not argue this part of the
test is contrary to Board precedent or federal authority. It instead presents multiple policy
considerations in an attempt to guide us to the conclusion the test is a bad idea. But the
Board’s duties are two-fold: “(1) to promote full communication between public employers
and employees, and (2) to improve personnel management and employer-employee
relations.” (Claremont Police Officers Assn. v. City of Claremont, supra, 39 Cal.4th at p.
630.) The third part of the Board’s test clearly seeks to foster these purposes and lead to
better communication and relations between public health care employers and their
employees.
Finally, the County argues the Board’s consideration of this factor is particularly
unfair because there was no allegation in the complaint the County violated the Act by
failing to notify Nurses it entered into a contract with a strike replacement company that
contained a minimum shift guarantee, nor that it failed to bargain over the impacts of such a
decision. Again, we do not see how this consideration leads to a conclusion the test the
Board announced was clearly erroneous in light of its duties under the Act and its precedent.
Instead, the County appears to be arguing the Board abused its discretion by imposing
remedial orders beyond that which were alleged and litigated. We will address this
30
argument post; but, as far as the County’s attempt to demonstrate the Board’s test is
erroneous, we are unpersuaded.
C
The Board’s Determination The County Unlawfully Prohibited Members From Using Paid
Leave For The Three Days After The Strike Was Not Clearly Erroneous
The County contends the Board clearly erred by finding its refusal to allow members
to use paid leave for days they were barred from returning to work constituted
discrimination and interference because there is no evidence the County did so based on
protected activity. To the contrary, the County argues, it treated the three days after the
strike as it would any other time an employee did not work a scheduled shift.
We note the County does not analyze this issue under the well-established
discrimination or interference standards. Instead, it offers what it believes to be
contradictions in the Board’s reasoning without citation to authority or analysis as to how
the Board’s reasoning fails to meet the well-established standards. “To demonstrate error,
appellant must present meaningful legal analysis supported by citations to authority and
citations to facts in the record that support the claim of error. [Citations.] When a point is
asserted without argument and authority for the proposition, ‘it is deemed to be without
foundation and requires no discussion by the reviewing court.’ [Citations.] Hence,
conclusory claims of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
In any event, the Board found the County both interfered with and discriminated
against protected activity when denying use of paid leave for the three days following the
strike. To establish a prima facie interference case, a charging party must show an
employer’s conduct tends to or does result in some harm to union or employee rights
protected by the Act. Importantly, the charging party does not need to show an improper
motive. (City of San Diego, supra, PERB Dec. No. 2747-M at p. 36.) Thus, as far as an
interference claim is concerned, the County’s argument the Board erred because no
evidence demonstrated the County denied paid leave based on Nurses’ and members’
31
exercise of protected rights fails at the outset. The County’s prohibition against the use of
accrued leave by striking members for the three days following the strike resulted in striking
members not being paid, despite a willingness to work, for more than twice as long as
members had anticipated. This harmed Nurses’ and members’ protected rights because it
discouraged future striking activity by expanding the risk involved in striking beyond the
control of those participating in the strike as described ante. There was no need to
demonstrate the County’s acts were motivated by Nurses’ and members’ exercise of
protected rights, and we fail to see how the County’s practice in other contexts is relevant to
how it treated striking employees differently following the strike.
Similarly, a finding of discrimination is not dependent on a showing the County’s
conduct was motivated by a discriminatory intent. Indeed, if an employer’s conduct facially
discriminates based on protected activity, it constitutes “ ‘discrimination in its simplest
form,’ ” and the Board may thus infer unlawful discrimination without further evidence of
motive. (Los Angeles Superior Court, supra, PERB Dec. No. 2566-C at p. 14.) The
Culberson memo explicitly prohibited striking members from returning to work for three
days after the strike and the County then refused to allow those members to use accrued
time to offset the lost time at work. The County did not target nonstriking members in the
days following the strike in the same way; some of the nonstriking members chose not to
work because the essential worker injunction was no longer in effect.
Further, the evidence did not establish the County was prevented from offering
members the use of accrued leave. In fact, the County permitted members to use accrued
time when it prohibited them from working during scheduled shifts because of low patient
census. The fact the memorandum of understanding provided for this type of furlough is of
no consequence. Our focus is on the County’s actions in the face of members’ protected
activity. (§ 3506.) Snyder’s and Culberson’s testimony establish the County’s only concern
was paying for double staff. But Snyder testified accrued leave was already allocated to
members and existed in a pot of money different from that which paid wages. In the only
32
other instance in which the County prohibited members from working scheduled shifts, the
County offered members use of their accrued leave. The fact the County did not similarly
do so in the days following the strike supports the Board’s determination the County’s
prohibition was based on Nurses’ and members’ exercise of protected activity. Thus, the
Board did not clearly err by finding a nexus between protected activity and the adverse
action taken by the County. (See Novato Unified School District, supra, PERB Dec. No.
0210-E at pp. 73-74.)
III
The Board’s Decision Is Supported By Substantial Evidence
The County contends the Board’s decision is not supported by substantial evidence
because no evidence supports its findings the County failed to make a good faith effort to
negotiate for a contract with the least minimum shift guarantee and it discriminated against
strike participants when offering available work following the strike. We disagree.
The Board’s factual findings, which include credibility findings, are conclusive if
substantial evidence on the whole record supports them. (See § 3564, subd. (c).) We do not
reweigh the evidence but accept the Board’s reasonable inferences. (Boling v. Public
Employment Relations Bd. (2018) 5 Cal.5th 898, 912-913.) Even if contrary findings may
seem equally or even more reasonable than the Board’s findings, we uphold the Board’s
decision as supported by substantial evidence if the Board’s findings are reasonable.
(Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d
601, 617.)
A
The Board’s Factual Finding The County Did Not Make A Good Faith Effort
To Reduce The Minimum Shift Guarantee Is Supported By Substantial Evidence
The Board determined “[t]he County did not establish that it made a good faith effort
in the marketplace to negotiate a contract that would eliminate the minimum shift guarantee
or shorten it to the greatest degree possible.” The Board based this finding on the County’s
33
inadequate efforts to collect bids from strike replacement companies, the lack of testimony
supplied by the County demonstrating the industry standard regarding the length of
minimum shift guarantees for strike replacement workers, and the County’s failure to
negotiate the length of the minimum shift guarantee. The County argues insufficient
evidence was presented at the administrative hearing to support the Board’s finding the
County failed to collect a sufficient number of bids and failed to adequately negotiate the
length of the minimum shift guarantee.8
Addressing the County’s efforts to collect bids for strike replacement workers, the
County argues the Board’s observation that the County had plenty of time before the strike
to solicit bids from strike replacement companies penalized the County for planning ahead
to protect its ability to provide patients with vital health services. Not so. The Board did
not hold it against the County that it contracted with Healthsource in October 2019, long
before the strike. The Board considered the four months the County searched for strike
replacement companies between June and October 2019 and determined those four months
were plenty of time in which to research and communicate with multiple strike replacement
companies to find the best one to serve the County’s needs. The Board did not suggest the
County should have taken longer or delayed entering into a contract until closer to the actual
strike.
The County also questions why the Board thought soliciting bids from three strike
replacement companies was insufficient. The Board did not say soliciting bids from three
strike replacement companies was insufficient. The Board thought the County’s solicitation
8 The County also challenges the Board’s finding it “likely knew, or should have
known, that [Nurses] and [the Service Employees Union] commonly hold strikes lasting
fewer than five days at many California hospitals.” We do not address this challenge
because the Board did not consider this fact as evidence the County did not act in good faith.
It considered this fact to question “why the County failed to negotiate over the minimum
shift guarantee before executing a replacement contract.” It is this latter consideration that
supported the Board’s lack of good faith finding, and it is this consideration we review.
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of the three companies at issue was insufficient. Indeed, Maxim was not a strike
replacement company and the County was having problems with Maxim’s services at the
time it requested a bid for strike replacement workers. The evidence on this point supports
the Board’s finding the County never seriously entertained Maxim as an option, and thus the
County did not adhere to its own policy of obtaining three quotes before contracting with a
strike replacement company.
As a practical matter, the County solicited a bid from a prohibitively expensive strike
replacement company and a company with whom it had negotiated in the past. The County
was unaware of any other options in the marketplace and presented no evidence pertaining
to the contents of a typical contract with a strike replacement company for the Board to
compare to the County’s ultimate contract. While the County was unaware of the
particulars of the Board’s new test, it was aware it would need to justify its decision with a
legitimate business reason or business necessity. (See Campbell Municipal Employees
Assn. v. City of Campbell, supra, 131 Cal.App.3d at p. 423.) As discussed ante, and
contrary to the County’s argument here, this requirement does not negate the importance of
the County’s considerations when contracting with a strike replacement company, but
instead balances its efforts with the impacts its decision had on members who exercise
protected activity. The County has raised no arguments undermining the Board’s finding
the County made inadequate efforts to collect bids from strike replacement companies and
has presented no evidence regarding the industry standard pertaining to minimum shift
guarantees.
Addressing the County’s failure to negotiate a shorter minimum shift guarantee, the
County disputes the Board’s finding that “ ‘[h]ad the County negotiated in a timely manner
to change the [minimum shift guarantee] as it sought to change other contract terms, it is
more likely than not that [Healthsource] would have reduced the minimum period in order
to secure the County’s business.’ ” First, the County contends it tried to negotiate a lesser
minimum shift guarantee. The Board agreed the County tried to negotiate a lesser minimum
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shift guarantee; however, the Board’s issue was that the attempt to lower the contractual
term happened after the County had already entered into a contract with Healthsource
containing a five-shift minimum guarantee. At that point, the County’s bargaining power
had already been reduced and Healthsource had no incentive to agree to a different term
than the term already in the contract. This finding, and the reasonable inference regarding
bargaining power flowing therefrom, are supported by Snyder’s testimony she did not
negotiate the substance of the contract with Healthsource until after selecting Healthsource
for the strike replacement contract.
The County also contends there was no evidence Healthsource would have agreed to
a lower minimum shift guarantee given Elbahou’s testimony the five-shift guarantee was
Healthsource’s standard term. But Elbahou’s had no knowledge of other contracts entered
into by Healthsource and he was not involved in many of the negotiations with the County.
The Board took administrative notice of other Healthsource contracts demonstrating
Healthsource had agreed to lower minimum shift guarantees, and the County does not argue
the administrative notice was taken in error. The evidence demonstrated Healthsource had
negotiated lower minimum shift guarantees in the past and may have done so again if the
County had raised the issue before agreeing to enter into a contact with Healthsource. The
County argues the context of the other contracts is much different than the one entered into
with the County. But the County did not supply any evidence on that point, as it was
required to do as the party bearing the burden of proving the affirmative defense. (Great
Dane, supra, 388 U.S. at pp. 33-34 [18 L.Ed.2d at pp. 1034-1035].) Instead, it called
Elbahou to testify and his knowledge was lacking as to the context of the other contracts.
Accordingly, sufficient evidence supports the Board’s finding the County failed to establish
it made a good faith effort to enter into a contract containing as short a minimum shift
guarantee as possible in light of maintaining critical health care services.
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B
The Board’s Factual Finding The County Discriminated Against Strike Participants When
Offering Available Work Is Supported By Substantial Evidence
The Board found the County preferred nonstrikers over strikers when filling available
work opportunities after the strike based on the County’s admissions and deviation from
established practices to offer full-time nurses work opportunities before other types of
nurses. The County disputes this finding, arguing it never admitted or stipulated it treated
striking members differently than nonstriking workers and there was no evidence pertaining
to the County’s established practices. We disagree.
The evidence established the County filled striking members’ shifts during the two-
day strike with strike replacement workers, traveling nurses, and essential employee
members enjoined from striking. When the strike was over and members attempted to work
their scheduled shifts, Culberson told members the shifts were filled and that members were
not needed to fill shifts. It was not until essential employees enjoined from striking refused
to work, because they were no longer under an order to do so, that the County attempted to
fill available work opportunities with striking members. But work opportunities not covered
by strike replacement workers were available after the strike, the County just kept in place
the nonstriking members and traveling nurses it had relied on during the strike. The County
stipulated to this fact and admitted as much during testimony. Based on these admissions,
we need not address the County’s argument the call-off order for low census furloughs
contained in the memorandum of understanding did not constitute the County’s established
practice. Accordingly, sufficient evidence supports the Board’s finding the County
preferred nonstriking workers to fill available work opportunities following the strike.
IV
The Board’s Chosen Remedy Was Not An Abuse Of Discretion
The County contends the Board imposed an overbroad and punitive remedy by
ordering the County to pay members for the period of time they were barred from work, and
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to offer this pay structure in the future. The County raises several arguments in this regard:
that it should not be required to pay members who were offered work opportunities during
the three days after the strike but refused to return to work; that the Board’s remedy of
providing the use of accrued leave contradicts the rule it announced that the County bargain
over the impacts of a minimum shift guarantee that lasts longer than a planned strike; that
the remedy does more than make members whole because, as the Board acknowledged,
members’ absences were not due to low patient census, making vacation pay unavailable in
the first instance; and that Nurses never alleged the County committed an unfair practice by
failing to negotiate the impacts of a delayed return-to-work schedule, thus it was outside the
Board’s authority to remedy an unalleged violation. We disagree.
The Board “has broad powers to remedy a violation of the Act. ([Citations]; see
§ 3509, subd. (b) [‘The initial determination as to whether the charge of unfair practice is
justified and, if so, the appropriate remedy to effectuate the purposes of [the Act], shall be a
matter within the exclusive jurisdiction of [the Board] . . . .’]; see also § 3541.3, subd. (i) . . .
; § 3541.3, subd. (n) . . . .)” (Boling v. Public Employment Relations Bd. (2019) 33
Cal.App.5th 376, 387 (Boling II).)
The Board also has “the power to issue [an] . . . order directing an offending party to
cease and desist from the unfair practice and to take such affirmative action, including but
not limited to the reinstatement of employees with or without back pay, as will effectuate
the policies of this chapter.” (§ 3541.5, subd. (c); see also Cal. Code Regs., tit. 8, § 32325
[“The Board shall have the power to issue a decision and order in an unfair practice case
directing an offending party to cease and desist from the unfair practice and to take such
affirmative action . . . as will effectuate the policies of the applicable statute”].)
We review the Board’s remedial orders for abuse of discretion. (Boling II, supra, 33
Cal.App.5th at p. 387.) “Generally, a ‘remedial order “should stand unless it can be shown
that the order is a patent attempt to achieve ends other than those which can be fairly said to
effectuate the policies of the Act.” [Citations.]’ ([Citations]; Jasmine Vineyards, Inc. v.
38
Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 968, 982 . . . [‘[i]t is only when the
remedies ordered by the Board are patently outside the Board’s authority that a reviewing
court can interfere’].) [¶] Nonetheless, [the Board’s] remedial orders may not be punitive.
[Citation.] They may not violate the separation of powers doctrine. [Citation.] And, they
may not encroach upon statutes and policies unrelated to the Act and, therefore, outside of
[the Board’s] competence to administer.” (Boling II, supra, 33 Cal.App.5th at pp. 387-388.)
The Board’s order that the County allow members to use accrued leave, even if those
members refused to return to work when ordered to do so, was not an abuse of discretion.
The Board grounded this decision in the particular facts of the case, leading us to conclude
the decision was not guided by punitive intentions. When attempting to return to work,
members inquired whether Culberson had invoked the furlough process outlined in the
memorandum of understanding. Culberson testified he was not clear and misspoke. He also
testified he never told members they were not being furloughed pursuant to the
memorandum of understanding. Given this misunderstanding, the Board justifiably treated
members who refused to return to work similar to members who were never requested to
return to work.
The Board imposed the remedy of allowing members to use accrued leave based on
the County’s discriminatory prohibition against it and the County’s discriminatory policy
instituting a delayed return-to-work schedule. As discussed, ante, these determinations were
not clearly erroneous. Accordingly, the use of paid leave makes members whole in the
sense it puts them in the position they expected to be in when notifying the County of the
two-day strike. Indeed, this remedy actually benefits the County in that sense because it
pulls upon a pot of money already allocated to members instead of forcing the County to
pay the wages members expected to make when notifying the County of the strike.
The Board’s order to permit members to use accrued leave in similar future
situations, unless the parties agree otherwise, was also not an abuse of discretion. The
County argues this remedy contradicts the Board’s newly announced rule that it will bargain
39
over the impacts of a minimum shift guarantee. We disagree because the Board’s order is
specific to the County and Nurses and their established practices and not applicable to all
labor disputes involving all health care providers. The County treated members differently
after the strike than it treated them in the only other similar situation in which members are
prohibited from working when they are otherwise able and willing to work -- furloughs due
to low patient census. The County argues the Board erred because the fact members can use
accrued leave in the event of the low patient furloughs was a bargained-for perk specific to
times when the Hospital has a low patient census. But the County has not pointed to any
other circumstance where members are told not to work a scheduled shift through no fault of
their own and then denied pay and the use of accrued leave. Indeed, several members
testified that it was their understanding that whenever they are prevented from working a
scheduled shift but are willing to work, they consider it a “furlough” and are permitted to
use accrued leave. Thus, the only reason members would not be permitted to use accrued
leave under the circumstances present here is because members exercised their protected
right to strike. That is discrimination in its purest form (Los Angeles Superior Court, supra,
PERB. Dec. No. 2566-C at p. 14), and the Board acted within its authority to prevent the
County from engaging in discriminatory practices in the future.
Finally, it is of no concern that Nurses did not allege the County committed an unfair
practice by failing to bargain over the impacts of a delayed return-to-work schedule. The
fact the County did not attempt to lessen the impacts of a delayed return-to-work schedule
was subsumed in Nurses’ allegations the County discriminated against and interfered with
protected activity by threatening and implementing a delayed return-to-work schedule and
by penalizing members for not working scheduled shifts when the failure to work was
outside of their control. The Board’s remedial order remedies the discrimination and
interference resulting from these adverse actions, which could have been lessened by notice
and negotiations over impacts, and the Board did not need to ground its orders in a separate
failure-to-bargain finding.
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V
The Board Did Not Err By Applying Its Newly Announced Test Retroactively
The County contends the Board’s newly announced test should not have been applied
retroactively because the County relied on settled and persuasive National Labor Relations
Board decisions finding contracts with strike replacement companies containing minimum
shift guarantees to be conduct that is comparatively slight and justifying delays in
reinstating workers. We disagree.
“ ‘As a general rule, judicial decisions are given retroactive effect, even if they
represent a clear change in the law. [Citation.] The exception is when considerations of
fairness and public policy are so compelling in a particular case that, on balance, they
outweigh the considerations that underlie the basic rule. [Citation.] This exception applies
in particular when a party justifiably has relied on the former rule.’ ” (Bearden v. U.S.
Borax, Inc. (2006) 138 Cal.App.4th 429, 442.)
As the County points out, the Board has no settled rule regarding contracts with
strike replacement companies. Indeed, the Board has never decided whether an employer’s
conduct in contracting with a strike replacement company requiring a minimum shift
guarantee constitutes inherently destructive or comparatively slight conduct. Even with its
decision here, the Board did not determine that such conduct always constitutes inherently
destructive conduct, but instead determined the inquiry was highly factual and dependent on
the totality of an employer’s conduct and considerations when hiring a strike replacement
company. The County asserts it looked to persuasive authority when entering into a
contract and it was unforeseen that the Board would diverge from that persuasive authority.
The County’s assertions are disingenuous considering the multiple instances in which the
Board has diverged from National Labor Relations Board decisions. (See, e.g., City of San
Jose v. Operating Engineers Local Union No. 3, supra, 49 Cal.4th at p. 611; Fremont
Unified School Dist., supra, PERB Dec. No. 1054-E at pp. 10-11; County of Trinity (United
Public Employees of California, Local 792), supra, PERB Dec. No. 2480-M at p. 3.) Thus,
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the County has not shown a reasonable reliance on the National Labor Relations Board rule,
and the Board did not err by applying its newly-announced test retroactively.
DISPOSITION
The Board’s decision is affirmed. The parties shall bear their own costs.
/s/
Robie, Acting P.J.
We concur:
/s/
Mauro, J.
/s/
Earl, J.
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