Decision 1255H – Regents of the University of California (California Nurses Association)
LA-CE-413-H
Decision Date: March 20, 1998
Decision Type: PERB Decision
Description: University and Union appealed decision finding University violated HEERA by making a unilateral change, refusing to provide relevant information to Union and discriminating against Union activist because of his protected activities.
Disposition: Violations found. University ordered to cease and desist from violating HEERA and to meet and confer and restore employees whose duties had been unilaterally changed.
Perc Vol: 22
Perc Index: 29066
Decision Headnotes
1101.03000 – Computation of Six-Month Period
Six-month time limitation for unilateral change allegation begins to run when Association has actual or constructive knowledge of the unilateral change, not when change actually occurs; p. 30, proposed dec. Board refuses to impute knowledge of unilateral change by unit members to the Association unit member filing grievance over issue when copy to Association was not sufficient to start statute running; pp. 30-31, proposed dec.
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses
Broadly-worded Management-Rights clause does not entitle University to unilaterally transfer work out of bargaining unit - waiver must be clear and unmistakable; p. 41, proposed dec.
300.04000 – Individual/Concerted/Activities/Self-Representation
Nurse engaged in protected activity when he spoke out about non-bargaining unit employees performing unauthorized tasks and expressed concern about nurses doing unauthorized work because the MOU requires nurses to maintain a license and these things jeopardized it.
501.01000 – In General; Elements of Prima Facie Case
Once charging party has established an inference of unlawful motivation for an adverse action, the burden shifts to the respondent to demonstrate that it would have taken the action despite the individual's protected activity; p. 45, proposed dec. Board rejects respondent's assertion that it would have taken the action in absence of employee's protected activity where respondent failed to present evidence demonstrating its rationale for discipline except for the disciplinary memorandum, itself, which was unsupported hearsay; pp. 50-51, proposed dec.
501.02000 – Burden of Proof; Evidence
Board rejects respondent's assertion that it would have taken adverse action in absence of employee's protected activity where respondent failed to present evidence demonstrating its rationale for discipline except for the disciplinary memorandum, itself, which was unsupported hearsay; pp. 50-51, proposed dec.
503.01000 – In General
Letter of reprimand is adverse action constitutes adverse action for purposes of reprisal allegation; p. 48, proposed dec.
503.03000 – Warning Letters, Reprimands, Evaluations
Letter of reprimand constitutes adverse action for purposes of reprisal; p. 48, proposed dec.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Broadly-worded Management-Rights clause does not entitle University to unilaterally transfer work out of bargaining unit - waiver must be clear and unmistakable; p. 41, proposed dec.
1000.02147 – Transfer of Work Out of Unit
Transfer of primary duties from registered nurses to cardiovascular technicians (CVT) constitutes a negotiable change in a term or condition of employment of bargaining unit employees; p. 35, proposed dec; These facts do not fall under the Eureka test because CVT's had not been previously employed by employer.
1101.01000 – In General
Six-month time limitation for unilateral change allegation begins to run when Association has actual or constructive knowledge of the unilateral change, not when change actually occurs, p. 30, proposed dec.
504.04000 – Timing of Action
Board finds that timing indicates unlawful motivation where letter of reprimand was issued just days after union raised issue previously pursued only by affected employee; p. 49, proposed dec.
504.08000 – Cursory Investigation
Employer's failure to interview disciplined employee or other percipient witnesses about incident purportedly giving rise to discipline supports inference of unlawful motive; p. 49, proposed dec.
602.01000 – In General
Transfer of primary duties from registered nurses to cardiovascular technicians (CVT) constitutes a negotiable change in a term or condition of employment of bargaining unit employees; p. 35, proposed dec; These facts do not fall under the Eureka test because CVT's had not been previously employed by employer.
604.01000 – In General
Request for job descriptions of and job requistion forms for non-unit employees suspected of performing bargaining unit work is necessary and relevant to union's representational activities; pp. 42-43, proposed dec. In the absence of justification or excuse, University's two-month delay in providing necessary and relevant information constitutes a violation of University's duty to meet and confer in good faith; pp. 43-44, proposed dec.
604.05000 – Subjects of Information
Request for job descriptions of and job requistion forms for non-unit employees suspected of performing bargaining unit work is necessary and relevant to union's representational activities; pp. 42-43, proposed dec.
608.03000 – Business Necessity; Emergency Exception
While earthquake created unanticipated and devastating situation, Board finds no business necessity where University maintained unilaterally implemented change after emergency had subsided and no facts support emergency transfer of work; p. 37, proposed dec.