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 * * *

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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

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.

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

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

“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

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

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

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

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.

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

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.

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

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.

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

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.

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

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.

1000.00000 – SCOPE OF REPRESENTATION
1000.02159 – Workloads

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

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

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.

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
1107.14000 – 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.

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

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.

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

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

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

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.