Decision 2761M – * * * JUDICIAL APPEAL PENDING * * * County of San Joaquin

SA-CE-1141-M

Decision Date: April 12, 2021

Decision Type: PERB Decision

Description: California Nurses Association called a two-day nurses strike at San Joaquin County. Five months earlier, the County had signed a staffing agency contract guaranteeing strike replacements five days’ work. As a result, the County barred most striking nurses from work for the three days after the strike, prohibited them from using accrued leave during these three days, and filled out nurses’ timecards with a payroll code that could potentially lead to adverse consequences. The complaint alleged that the County’s conduct amounted to discrimination against and interference with protected conduct, as well as a unilateral change in employment terms without notice and an opportunity to meet and confer.

Disposition: The Board held that a public health care employer that prohibits bargaining unit employees from work after a strike, due to a minimum shift guarantee for strike replacements, can typically establish an affirmative defense to an interference claim and avoid a finding of discrimination only if it can prove that: (1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately needed to agree to the minimum shift guarantee in order to maintain critical health care services; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities, and it filled all remaining opportunities without discriminating against employees based on whether they worked during the strike or engaged in any other actual or perceived protected activity; and (3) it provided the employees’ union with timely notice regarding any decision to guarantee replacement workers a minimum work period or to modify the terms of such a guarantee, and, if requested, bargained in good faith over the potential effects on bargaining unit employees. Applying this holding, the Board found the County discriminated against and interfered with protected conduct. Finally, while the Board clarified an employer’s notice and effects bargaining obligations when it guarantees strike replacements a minimum work period, the Board dismissed the unilateral change claim presented in the complaint.

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Perc Vol: 45
Perc Index: 92

Decision Headnotes

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.04000 – Unfair Practice

It is an unfair practice for a public sector union strike to cause an imminent and substantial threat to the public’s health or safety, and a union may lawfully strike pre-impasse only based upon employer unfair practices. (Regents of the University of California (2019) PERB Order No. IR-62-H, pp. 8 & 10-11; County of San Mateo (2019) PERB Order No. IR-61-M, pp. 5-6.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.11000 – Essential Employees

PERB precedent requires an employer seeking an essential employee injunction to contact all companies or other entities potentially able to provide replacement employees or services. (See County of San Mateo (2019) PERB Order No. IR-61-M, p. 8.)

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

The Board first established its current interference test in Carlsbad Unified School District (1979) PERB Decision No. 89, p. 5 (Carlsbad). To establish a prima facie interference case under the Carlsbad standard, a charging party must show that an employer’s conduct tends to or does result in some harm to union and/or employee rights protected under the statutes we enforce. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36.) A charging party need not establish that the employer held an unlawful motive. (Ibid.) Once a charging party has established a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive (which we sometimes label “comparatively slight”), the respondent may attempt to justify its actions based on operational necessity. (Ibid.) In such cases, we balance the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, we find a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Id. at p. 36, fn. 19.) PERB precedent considers interfering conduct and employer justifications on a continuum, holding that if conduct rises to the level of “inherently destructive,” then the employer must justify it by demonstrating circumstances beyond its control, leaving it with no alternative course of action. (Carlsbad, supra, PERB Decision No. 89, pp. 10-11.)

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.01000 – In General

A California public sector employer cannot lockout or permanently replace its employees. (Fremont Unified School District (1990) 29 PERB Order No. IR-54, pp. 10-11.)

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.02000 – Employer Policies or Actions Regarding Strikes or Picketing

Employer harmed protected rights when it prohibited employees from working for multiple days after a strike due to a minimum shift guarantee for strike replacements, prevented employees from using accrued paid leave for these days, and designated both strike days and mandatory days off with a payroll code that can be used for discipline. These actions discouraged employees from authorizing future strikes, and therefore had to be narrowly tailored to a compelling business necessity.

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.03000 – Lockouts and Permanent Replacement of Strikers

A California public sector employer cannot lockout or permanently replace its employees. (Fremont Unified School District (1990) 29 PERB Order No. IR-54, pp. 10-11.)

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.04000 – Post-Strike Furloughs

Employer harmed protected rights when it prohibited employees from working for multiple days after a strike due to a minimum shift guarantee for strike replacements, prevented employees from using accrued paid leave for these days, and designated both strike days and mandatory days off with a payroll code that can be used for discipline. These actions discouraged employees from authorizing future strikes, and therefore had to be narrowly tailored to a compelling business necessity.

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.04000 – Post-Strike Furloughs

A public health care employer that prohibits bargaining unit employees from work after an economic or unfair practice strike, due to a minimum shift guarantee for strike replacements, can typically establish an affirmative defense to an interference claim and avoid a finding of discrimination only if it can prove that: (1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately needed to agree to the minimum shift guarantee in order to maintain critical inpatient services; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities, and it filled all remaining opportunities without discriminating against employees based on whether they worked during the strike or engaged in any other actual or perceived protected activity; and (3) it provided the employees’ union with timely notice regarding any decision to guarantee replacement workers a minimum work period or to modify the terms of a prior guarantee, and, if requested, bargained in good faith over the potential effects on bargaining unit employees. Applying this standard, Board found employer did not meet any of these three required elements.

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.04000 – Post-Strike Furloughs

Executing a contract specifically for strike replacements is not a mandatory subject of bargaining, but the effects of that decision on bargaining unit employees are bargainable, because post-strike work opportunities, post-strike furloughs, use of paid leave, and appropriate payroll codes are bargainable effects on mandatory subjects of bargaining.

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.04000 – Post-Strike Furloughs

County engaged in facial discrimination when it granted preference to non-strikers over strikers by prohibiting striking nurses from returning to work at the end of the strike period for three days unless called to work. Singling out employees who honored picket lines during the strike and reducing their post-strike work opportunities—while granting greater opportunities to employees who did not strike—constitutes facial discrimination under PERB’s discrimination standard and inherently destructive conduct under PERB’s interference standard. (Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423 [noting that, under NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26, favoring non-strikers over strikers constitutes “discrimination in its simplest form”].) To meet its affirmative defense burden, the County was required to prove that it acted solely due to circumstances beyond its control and no alternative course of action was available. (Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, pp. 36 & 40.)

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.04000 – Post-Strike Furloughs

County allowed nurses to use paid leave for furloughs that have no relationship to protected activity. Singling out the post-strike furloughs for differential treatment from all other furloughs is both facially discriminatory and inherently destructive of protected rights. The County did not justify such conduct with a valid business necessity, much less one reflecting circumstances beyond its control leaving it with no other alternative. Even applying the Novato framework, the County’s disparate treatment of post-strike days meets the nexus element, while illustrating that the County would likely have permitted nurses to use paid leave, absent protected activity.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

PERB uses one of two tests in assessing discrimination cases. If an employer’s conduct facially discriminates based on protected activity, that is “discrimination in its simplest form,” and PERB may infer unlawful discrimination without further evidence of motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (LA Superior Court).) Common examples of facial discrimination include: (1) providing different pay, benefits, or other working conditions based explicitly on union membership or other protected activity; or (2) changing policies in response to protected activity where the operative comparison is not between two different groups of employees, but between an employer’s policies before and after the exercise of protected rights. (Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, p. 40 (Contra Costa); City of Yuba City (2018) PERB Decision No. 2603-M, pp. 10-11.) Thus, the conduct at issue may, but need not, involve disparate conduct toward different employee groups. (Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 81; LA Superior Court, supra, PERB Decision No. 2566-C, p. 15.) Although inherently destructive conduct and facial discrimination do not always equate to one another, the same conduct can meet both standards, and in such circumstances the employer’s affirmative defense is the same under the two standards. (See, e.g., Contra Costa, supra, PERB Decision No. 2632-M, pp. 36 & 40.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

PERB uses one of two tests in assessing discrimination cases. When the conduct at issue is not facially discriminatory, PERB applies the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its progeny. (Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, p. 76; Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, pp. 14-15.) To establish a prima facie case under the Novato framework, a charging party must prove four elements: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more of the employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26.) If the charging party has established a prima facie case but the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent has the burden to prove that it would have taken the exact same action even absent protected activity. (Ibid.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Ibid.)


504.14000 – Other/In General

An employer’s conduct around notice or bargaining can evidence discrimination. (See, e.g., City and County of San Francisco (2020) PERB Decision No. 2712- M, p. 26 [allegation that employer refused to respond to bargaining request in a timely and adequate manner suggested discriminatory motive behind related employer conduct]; County of Orange (2018) PERB Decision No. 2611-M, p. 17 [unilateral change evidenced discriminatory animus].) Context is critical in determining whether particular conduct is persuasive proof of discrimination or an independent interference allegation. Where bargaining conduct evidences discrimination, PERB considers it irrespective of whether it was ever alleged or litigated in an unfair practice charge and irrespective of whether it falls within the statute of limitations. (City of Oakland (2014) PERB Decision No. 2387-M, pp. 35-36.)

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

Advance notice and bargaining are the primary means by which the MMBA promotes its central purpose—communication—and would lead to greater understanding and harmony going forward. Work opportunities, hours, and mandatory furlough periods are within the scope of representation. (See, e.g., Modoc County Office of Education (2019) PERB Decision No. 2684, p. 10; City of Long Beach (2012) PERB Decision No. 2296-M, p. 23; County of Fresno (2010) PERB Decision No. 2125-M, adopting warning letter at p. 3.) A decision to contract with a striker replacement company had foreseeable effects on these mandatory subjects of bargaining. The employer therefore was required to provide notice and a meaningful opportunity to bargain over the reasonably foreseeable effects of its decision before implementation. (County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12.)

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

A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (County of Merced (2020) PERB Decision No. 2740-M, pp. 8-9.) Three primary types of policy changes are sufficient to prove the first element: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Id. at p. 9.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.02000 – Investigation of Charge

PERB does not penalize a charging party for failing to label a theory that may fit the factual allegations in its charge; rather, PERB’s Office of the General Counsel must issue a complaint based on all legal theories for which the alleged facts state a prima facie case. (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23; Hartnell Community College District (2015) PERB Decision No. 2452, pp. 53-54.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.02000 – Investigation of Charge

If PERB’s Office of the General Counsel (OGC) does not address an allegation in a charge, PERB makes no assumption that OGC rejected the allegation. (See, e.g., Trustees of the California State University (2017) PERB Decision No. 2522-H, pp. 6, 18-19 [remand to OGC for further investigation where Board determined that dismissal did not address alternate theory of violation]; Trustees of the California State University (2014) PERB Decision No. 2384-H, pp. 4-5 [remand to OGC for further investigation of any factual or legal issues that were not fully or properly considered]; PERB Reg. 32620, subd. (d).)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.01000 – In General

In a case involving a post-strike furlough resulting from a replacement contract containing a minimum shift guarantee, the complaint alleged discrimination against union and employee rights, as well as an independent claim for interference with union’s rights, but only a derivative claim for violation of employee rights.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.01000 – In General

Notice pleading principles do not impose severe requirements in providing a respondent general notice of the claims alleged, especially given that PERB “is not a court, but an administrative agency” and favors “hearing cases on their merits.” (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 22, fn. 7.)

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.12000 – Concurrent or Derivative Violations

Where a complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent rather than derivative if the interference claim can be established without the other claim being established. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) In a case involving a post-strike furlough resulting from a replacement contract containing a minimum shift guarantee, an independent interference claim is cognizable.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.12000 – Concurrent or Derivative Violations

Where conduct set forth in earlier complaint paragraphs could constitute a violation irrespective of motive, the phrase “this conduct also interfered” does not limit a charging party to litigating only a derivative interference theory. The Board partially overruled County of Santa Clara (2017) PERB Decision No. 2539-M, to the extent it can be read to suggest that “this conduct” always refers only to the immediately preceding paragraph of the complaint rather than to the underlying conduct set forth in earlier complaint paragraphs. PERB precedent, as properly construed, does not impose the artificial, deleterious obstacles that the concurrence discerned in County of Santa Clara, supra, PERB Decision No. 2539-M.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

PERB favors a liberal right to amend pleadings, so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities. (Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 (EMWD).) A party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (Ibid.; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8.) Notably, “prejudice typically means that a party has been prevented from preparing or presenting evidence or argument. It does not typically mean that an amendment improves one party’s pleadings and thereby presents an additional obstacle to the opposing party; were that the case, nearly every proposed amendment would be prejudicial.” (EMWD, supra, PERB Decision No. 2715- M, pp. 11-12.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Id. at p. 8.) This standard remains the same even if a charging party moves to amend its complaint after resting its case-in-chief. (EMWD, supra, PERB Decision No. 2715-M, p. 9, citing Contra Costa Community College District, supra, PERB Decision No. 2669, p. 8.) Thus, at any stage, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? (EMWD, supra, PERB Decision No. 2715-M, p. 9.) In some cases, moreover, a proposed amendment may cause so little prejudice that there is no need for a continuance. (Ibid.)

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

ALJ should have granted union’s motion to amend. The ALJ ruled on the merits of the issue prior to the close of the hearing, which is only appropriate if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing on one or more issues unnecessary. (Eastern Municipal Water District (2020) PERB Decision No. 2715-M, pp. 13 & 15.) While there can be occasions in which an ALJ may, on her or his own accord, raise potential summary judgment on a claim, the ALJ here did so without notice to the parties and without an adequate substantive basis. Because the ALJ sought to resolve a theory on the merits without hearing evidence on it, he should have applied “the standard governing the pre-complaint investigation of an unfair practice charge.” (Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) In those circumstances, a hearing is required if there were, as here, “contested, colorable legal theories.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.07000 – Administrative and Judicial Notice

PERB frequently takes administrative notice of its own records and files. (See, e.g., Alliance Judy Ivie Burton Technology Academy High, et al. (2020) PERB Decision No. 2719, p. 2, fn. 3; Regents of the University of California (2019) PERB Decision No. 2646-H, p. 3, fn. 4; Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 2, fn. 3.)

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

Although the ALJ should have granted union’s motion to amend complaint, the Board declined to remand for the parties to litigate the additional unilateral change claim. This decision best effectuates the MMBA’s purposes because remand would substantially delay the outcome of the matter without providing an opportunity for different make-whole relief. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 58-59.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

While the complaint in the instant case adequately alleged an independent claim of interference with union’s rights, even setting that conclusion aside, the unalleged violation doctrine provided a basis for the Board to consider interference with both employee and organizational rights. (See, e.g., County of Santa Clara (2017) PERB Decision No. 2539-M, pp. 16-17 [applying unalleged violation doctrine to independent interference claim, after having found complaint did not adequately allege it].)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

In a case involving a post-strike furlough resulting from a replacement contract containing a minimum shift guarantee, PERB ordered the County to provide all lost compensation, including but not limited to wages, differentials, accruals, and other benefits, to those nurses who were scheduled to work on the three post-strike days, but whom the County barred from work on such a scheduled day. PERB’s Order included nurses who were subsequently called back to work but did not return during that period, given that it was reasonable for employees to believe they had the contractual right not to return once they were furloughed.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.01000 – In General

A “properly designed remedial order seeks a restoration of the situation as nearly as possible to that which would have obtained but for the unfair labor practice.” (Modesto City Schools (1983) PERB Decision No. 291, pp. 67-68.) An appropriate remedy therefore should make whole all injured persons or organizations for the full amount of their losses and should withhold from the wrongdoer the fruits of its violation. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13.) In addition to serving restorative and compensatory functions, a Board-ordered remedy should also deter future misconduct, so long as the order is not a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the labor relations laws the Board enforces. (Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 10-11.)

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
503.15000 – Other

Employer’s use of “Leave Unauthorized” payroll code was adverse action because employees reasonably believed it could lead to discipline.