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

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.

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.

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.

* * * 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.

* * * 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.

* * * 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.

* * * 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.