Decision 1255H – Regents of the University of California (California Nurses Association)

LA-CE-413-H

Decision Date: March 20, 1998

Decision Type: PERB Decision

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Perc Vol: 22
Perc Index: 29066

Decision Headnotes

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
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.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
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.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
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.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
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.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
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.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.01000 – In General

Letter of reprimand is adverse action constitutes adverse action for purposes of reprisal allegation; p. 48, proposed dec.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.03000 – Warning Letters, Reprimands, Evaluations

Letter of reprimand constitutes adverse action for purposes of reprisal; p. 48, proposed dec.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
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.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
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.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.03000 – Business Necessity; Employer Financial Position

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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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.

1000.00000 – SCOPE OF REPRESENTATION
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.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
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.