Decision 2094H – Regents of the University of California * * * OVERRULED IN PART by amendment to HEERA section 3563.3, Stats. 2011, Ch. 539

SF-CE-762-H

Decision Date: February 2, 2010

Decision Type: PERB Decision

 * * * OVERRULED IN PART by amendment to HEERA section 3563.3, Stats. 2011, Ch. 539 * * *

Description: CNA alleged that UC bargained in bad faith by:  (1) refusing to bargain over nurse-to-patient staffing ratios and (2) refusing to provide relevant information on how shift staffing ratios were determined.  UC alleged that CNA bargained in bad faith by threatening a one-day strike prior to bargaining impasse.

Disposition: The Board reversed the ALJ’s proposed decision and remanded for further hearing on damages.  The Board found that staffing ratios are within the scope of representation and that UC engaged in “hard bargaining” over CNA’s staffing ratio proposal.  The Board further found that the information requested by CNA was relevant and that UC complied with its obligation to provide the information by asking the third party software vendors if it could disclose the proprietary information to CNA.  The Board held that CNA’s threatened one-day strike was unlawful because it occurred before impasse and was not provoked by UC’s unfair practices.  The Board remanded to the ALJ for determination of compensable damages.

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Perc Vol: 34
Perc Index: 41

Decision Headnotes

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Employer did not fail to bargain in good faith over employee organization’s proposal to incorporate state regulations setting minimum nurse-to-patient staffing ratios into collective bargaining agreement. Employer’s position that arbitration was not the proper forum for enforcement of regulations was supported by rational arguments and clearly communicated to union at the bargaining table.

1202.00000 – REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY
1202.01000 – In General

* * * OVERRULED IN PART by Stats. 2011, ch. 539 (S.B. 857), § 4, which provides that PERB may not award damages for an unlawful strike. * * *

Damages for unlawful strike activity will not be awarded unless the employer first seeks to stop the strike or mitigate its losses by seeking injunctive relief through PERB.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.14000 – Informational Briefs

The Board requested supplemental briefing on the issue of whether PERB has the authority to award damages as part of a make whole remedy for unlawful strike activity.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.13000 – Administrative and Judicial Notice

The Board may exercise its discretion to take judicial notice of material from outside proceedings when the material is of probative value in the matter before the Board. The Board granted a request to take judicial notice of two legislative committee memoranda relevant to the legislative history of HEERA when PERB’s remedial authority under HEERA was at issue. The Board declined a request to take judicial notice of a temporary restraining order issued against a union that was not a party to the case before it.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.03000 – Remand for Further Hearing; Remand to General Counsel

* * * OVERRULED IN PART by Stats. 2011, ch. 539 (S.B. 857), § 4, which provides that PERB may not award damages for an unlawful strike. * * *

ALJ granted employee organization’s motion in limine to exclude evidence of employer’s damages resulting from strike activity. Having found that the employee organization’s strike threat and preparations were an unfair practice, the Board remanded the matter to the ALJ for hearing on the issue of damages.

1000.00000 – SCOPE OF REPRESENTATION
1000.02159 – Workloads

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Nurse-to-patient staffing ratios relate to the workload of individual nurses on a particular shift.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Nurse-to-patient staffing ratios relate to the workload of individual nurses on a particular shift. Proposal to incorporate state regulations setting minimum nurse-to-patient staffing ratios into collective bargaining agreement was within scope of representation because proposed provision merely reiterated employer’s obligations under law and allowed employee organization to enforce ratios through arbitration.

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.05000 – Unfair Practice Strike

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

A strike prior to the completion of statutory impasse procedures is presumed unlawful. The employee organization may rebut the presumption by proving the strike was provoked by the employer’s unfair practices. Employee organization did not prove employer committed any unfair practices and therefore failed to rebut presumption.

802.00000 – UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES
802.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

HEERA does not prohibit strikes; the lawfulness of a strike is to be determined on a case-by-case basis. A strike prior to the completion of statutory impasse procedures is presumed unlawful. The employee organization may rebut the presumption by proving the strike was provoked by the employer’s unfair practices. Employee organization did not prove employer committed any unfair practices and therefore failed to rebut presumption. A threat to strike and strike preparations are an unfair practice if they: (1) were made in furtherance of an unlawful strike, and (2) were sufficiently substantial to support a reasonable belief by the employer that the strike would occur as noticed. Employee organization gave clear written notice of one-day strike to occur before completion of statutory impasse procedures and engaged in substantial preparations for strike. Under totality of circumstances test, employee organization’s conduct was an unfair practice.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.15000 – Hard Bargaining

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Employer’s refusal to agree to employee organization’s proposal to incorporate state regulations setting minimum nurse-to-patient staffing ratios into collective bargaining agreement constituted “hard bargaining.” Employer’s position was supported by rational arguments and clearly communicated to union at the bargaining table.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Employer did not fail to provide requested information because, while information was presumptively relevant, employer’s contract with software vendor precluded disclosure of the information and vendor refused employer’s request to allow disclosure to employee organization. Nor did employer fail to provide information when it produced its contracts with other software vendors and the employee organization neither reasserted nor clarified its information request in response.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.05000 – Subjects of Information

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

“Formulas and methodology” used by third-party software to generate nurse-to-patient staffing ratios for particular shift are presumptively relevant because nurse-to-patient staffing ratios relate to the workload of individual nurses on a particular shift.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Employer did not fail to bargain in good faith over employee organization’s proposal to incorporate state regulations setting minimum nurse-to-patient staffing ratios into collective bargaining agreement. Employer’s position that arbitration was not the proper forum for enforcement of regulations was supported by rational arguments and clearly communicated to union at the bargaining table.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.02000 – Inflexible Position

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Employer’s refusal to agree to employee organization’s proposal to incorporate state regulations setting minimum nurse-to-patient staffing ratios into collective bargaining agreement constituted “hard bargaining.” Employer’s position was supported by rational arguments and clearly communicated to union at the bargaining table.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.03000 – Predictably Unacceptable Offer

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Employee organization’s amended proposal to incorporate state regulations setting minimum nurse-to-patient staffing ratios into collective bargaining agreement was predictably unacceptable because employer had previously rejected proposal incorporating language of regulations verbatim and amended proposal consisted of same language with code section numbers removed.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.11000 – Failure to Provide Counter-Proposals

* * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4. * * *

Employer not obligated to make counterproposal to proposal that is predictably unacceptable. Employee organization’s amended proposal was predictably unacceptable because employer had previously rejected proposal incorporating language of regulations verbatim and amended proposal consisted of same language with code section numbers removed. Employer thus was not required to respond differently than it had to the original proposal.

1204.00000 – REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION
1204.01000 – In General

* * * OVERRULED IN PART by Stats. 2011, ch. 539 (S.B. 857), § 4, which provides that PERB may not award damages for an unlawful strike. * * *

PERB has authority to make an employer whole for expenses necessarily incurred or economic harm suffered as a direct result of unlawful strike activity. Expenses must have been necessary to maintain continuity of operations during the strike and proper to mitigate foreseeable effects of the strike. Expenses that are speculative or cannot be quantified, or that were only indirectly related to the strike, are not compensable. Expenses and losses are to be offset by any savings the employer realized as a result of the strike activity. Damages will not be awarded unless the employer first seeks to stop the strike or mitigate its losses by seeking injunctive relief through PERB. Case remanded to ALJ for hearing on whether employer sustained compensable damages.

1204.00000 – REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION
1204.03000 – Unlawful Strikes

* * * OVERRULED IN PART by Stats. 2011, ch. 539 (S.B. 857), § 4, which provides that PERB may not award damages for an unlawful strike. * * *

PERB has authority to make an employer whole for expenses necessarily incurred or economic harm suffered as a direct result of unlawful strike activity. Expenses must have been necessary to maintain continuity of operations during the strike and proper to mitigate foreseeable effects of the strike. Expenses that are speculative or cannot be quantified, or that were only indirectly related to the strike, are not compensable. Expenses and losses are to be offset by any savings the employer realized as a result of the strike activity. Damages will not be awarded unless the employer first seeks to stop the strike or mitigate its losses by seeking injunctive relief through PERB. Case remanded to ALJ for hearing on whether employer sustained compensable damages.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.10000 – Other Affirmative Relief

* * * OVERRULED IN PART by Stats. 2011, ch. 539 (S.B. 857), § 4, which provides that PERB may not award damages for an unlawful strike. * * *

PERB has authority to make an employer whole for expenses necessarily incurred or economic harm suffered as a direct result of unlawful strike activity. Expenses must have been necessary to maintain continuity of operations during the strike and proper to mitigate foreseeable effects of the strike. Expenses that are speculative or cannot be quantified, or that were only indirectly related to the strike, are not compensable. Expenses and losses are to be offset by any savings the employer realized as a result of the strike activity. Damages will not be awarded unless the employer first seeks to stop the strike or mitigate its losses by seeking injunctive relief through PERB. Case remanded to ALJ for hearing on whether employer sustained compensable damages.