PERB Decision No. 2094H

Gesamter Gesetzestext

* * * OVERRULED IN PART by Stats. 2011, Ch. 539 (See HEERA sec. 3563.3 and comparable parts of other laws);
and OVERRULED IN PART by Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision
No. 2418-M, as recognized in Oakland Unified School District (2024) PERB Decision No. 2906, p. 18 * * *
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA NURSES ASSOCIATION,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. SF-CE-762-H
PERB Decision No. 2094-H
February 2, 2010
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Charging Party,
V.
CALIFORNIA NURSES ASSOCIATION,
Respondent.
Case No. SF-C0-124-H
Appearances: M. Jane Lawhon, Pamela Allen, and Marcie Ellen Berman, Legal Counsel, for
California Nurses Association; Littler Mendelson by Robert G. Hulteng, Joshua J. Cliffe, and
Joshua D. Kienitz, Attorneys, for Regents of the University of California; Schwartz, Steinsapir,
Dohrmann & Sommers by Margo A. Feinberg and Henry M. Willis, Attorneys, for Amicus
Curiae International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO; Arnie R. Braafladt, Deputy Chief Counsel, for Amicus Curiae
California School Employees Association; Leonard Carder by Arthur Krantz, Attorney, for
Amicus Curiae University Council - American Federation of Teachers and University
Professional and Technical Employees, CWA Local 9119; Weinberg, Roger & Rosenfeld by
Vincent A. Harrington, Attorney, for Amicus Curiae American Federation of State, County and
Municipal Employees, Local 3299, AFL-CIO.
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION
DOWDIN CALVILLO, Acting Chair: These consolidated cases are before the Public
Employment Relations Board (PERB or Board) on exceptions filed by the Regents of the
University of California (UC) to the proposed decision of an administrative law judge (ALJ).

The amended complaint in Case No. SF-CE-762-H alleged that UC violated the Higher
Education Employer-Employee Relations Act (HEERA) 1 by: (1) insisting to impasse on its
proposal to add language prohibiting sympathy strikes to the parties' collective bargaining
agreement (CBA); (2) conditioning agreement to a successor CBA on the California Nurses
Association's (CNA) acceptance of its proposal to prohibit sympathy strikes; (3) refusing to
bargain over CNA's proposal regarding nurse-to-patient staffing ratios; and (4) refusing to
provide CNA with requested information regarding the patient classification systems (PCS) in
use at the UC medical centers. The complaint in Case No. SF-CO-124-H alleged that CNA
violated HEERA by giving UC notice of its intent to engage in a one-day strike without the
parties having reached an impasse in negotiations.
The ALJ dismissed the allegation that UC refused to bargain over sympathy strike
language but concluded that UC refused to bargain over staffing ratios and refused to provide
the requested PCS information. Based on these conclusions, the ALJ ruled that CNA's strike
threat was lawful because it was provoked by UC's unfair practices.
The Board has reviewed the proposed decision and the record in light of UC's
exceptions, CNA's response to the exceptions, the parties' supplemental briefs and responses
thereto, briefs of amicus curiae and the relevant law. Based on this review, the Board reverses
the proposed decision for the reasons discussed below.2
1 HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 UC requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers
of Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office of
Education (1991) PERB Decision No. 913.) Based on our review of the record, all of the
above criteria are met in this case. Therefore, UC's request for oral argument is denied.
2

BACKGROUND
CNA represents a bargaining unit
of
approximately 9,000 registered nurses, nurse
practitioners and nurse anesthetists who work at UC medical centers in San Francisco, Davis,
Los Angeles, Irvine, and San Diego, and at the student health centers on UC campuses. On
January 27, 2005, UC and CNA began formal negotiations for a successor to the parties' 2002-
2005 CBA, which was set to expire on April 30, 2005. Gayle Cieszkiewicz (Cieszkiewicz)
was the lead negotiator for UC throughout these negotiations; Joe Lindsay (Lindsay) served in
the same role for CNA.
Staffing Ratio Proposal
Article 8
of
the 2002-2005 CBA governed staffing. Section A
of
that article stated in
full: "The University shall have a staffing system based on assessment
of
patient needs in
conformance with applicable state regulations."
At the first bargaining session on January 27, 2005, CNA passed a written proposal to
amend Article 8(A) to state:
The University shall have a staffing system based on assessment
of
patient needs in conformance with applicable state regulations
including AB 394 and the regulations effected January 1, 2004
pursuant to AB 394. Those regulations and AB 394 are
attached hereto as Appendices F and
G.
Appendix F contained the entire text
of
Assembly Bill (AB) 394 as chaptered on
October 10, 1999. Appendix G contained the entire text
of
sections 70217, 70225, and 70455
of
Title 22
of
the California Code
of
Regulations. These regulations, promulgated by the
Department of Health Services (DHS) pursuant to AB 394, established specific nurse-to-
patient staffing ratios effective January 1, 2004. Section 70217 also included staffing ratios for
particular hospital units to take effect on either January 1, 2005 or January 1, 2008.
3

Lindsay testified that CNA made this proposal for two reasons. First, CNA believed
that Governor Arnold Schwarzenegger and UC were attempting to weaken the staffing ratio
regulations. In CNA's view, incorporating the ratios into the CBA would preserve the current
ratios for the term of the agreement regardless of any changes to the regulations. Second,
CNA believed that DHS would not properly enforce the regulations. Thus, CNA wanted to
incorporate the staffing ratios into the CBA so it could enforce them through the contractual
grievance procedure.
UC responded to CNA's staffing ratio proposal during bargaining on February 17,
2005. Cieszkiewicz told Lindsay that UC's Office of the General Counsel (OGC) advised her
that CNA's proposal, as presented, did not constitute a mandatory subject of bargaining. She
acknowledged that any effects of the staffing ratios were subject to negotiation. Cieszkiewicz
also stated she was still discussing the proposal with OGC but wanted to give Lindsay a "heads
up" about OGC's current position. Lindsay responded that he would be "fascinated to hear
what they say." Cieszkiewicz testified her statements were intended to put CNA on notice of
UC's concern over the negotiability of the proposal and to give CNA an opportunity to respond
to that concern.
During bargaining on March 2, 2005, Lindsay attempted to confirm whether UC
believed staffing ratios were not a mandatory subject of bargaining. Cieszkiewicz responded
that she did not "have a formal legal opinion" on the negotiability of the ratios themselves but
reiterated that effects of the ratios, such as "issues of workload, salaries, overtime, [sic] issues,
and assignment issues," were negotiable. She then stated UC was reluctant to incorporate
legislation into the CBA because it would result in an arbitrator, rather than a judge, making a
decision about the law. Lindsay then asked if Cieszkiewicz was "still waiting for a position"
on whether staffing ratios are a mandatory subject of bargaining. Cieszkiewicz responded,
4

"I'm
still waiting to hear from OGC, because
I'm
interested in knowing about this," but stated
that UC is "willing to negotiate over the operational affects
of
the law, but we think
it's
unnecessary to put it in the contract." Lindsay replied, "Staffing is a working condition," and
reiterated CNA's position that staffing ratios are a mandatory subject
of
bargaining.
On March 16, 2005, UC made its first counterproposal regarding Article 8, Staffing.
The written proposal included the language
of
section A as it existed in the 2002-2005 CBA.
The following day, UC made a second counterproposal on Article 8 with the language
of
section A again as it existed in the 2002-2005 CBA.
Cieszkiewicz testified it was the parties' practice during these negotiations to include
the entire relevant article in a written proposal and that
if
no changes were indicated to a
particular provision, the party making the proposal intended that provision to remain as it
existed in the prior CBA. Lindsay confirmed both the parties' practice and their understanding
of
the meaning
of
an unchanged provision in a written proposal.
The staffing ratio proposal was discussed again at the table on April 20, 2005, when
Lindsay indicated CNA was maintaining its position regarding incorporating staffing ratios
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a mandatory J. sub,iect J
of
bargaining." Cieszkiewicz replied:
I think the issues related to staffing workload, schedule, relief,
breaks all those things are mandatory subjects
of
bargaining. The
University doesn't believe that putting bargaining ratios into the
contract is not something you can take us to impasses over. The
law gets interpreted by judges not arbitrators. There is legislative
intent behind this. The only way it could be handled in the
arbitration process is
if
we had a lengthy dialog about what each
and every piece meant. 3
3 This quotation is taken directly from UC's bargaining notes. The spelling,
punctuation and wording are those of the note taker and have not been altered.
5

Lindsay responded that CNA believed staffing ratios were a mandatory subject
of
bargaining, to which Cieszkiewicz replied, "I will talk to my team."
The parties revisited the subject
of
staffing ratios during bargaining on April 29, 2005.
Cieszkiewicz told Lindsay:
Article
8,
Staffing; we are not proposing any change to this
article. We are keeping our commitment to abide by the law,
with regard to staffing ratios. This is already in the contract.
Later in the session, CNA passed a revised proposal on Article 8 that included
amending section A to read in full: 	"The University shall have a staffing system based on
assessment
of
patient needs in conformance with Appendix F." Attached to the proposal was a
revised Appendix F which contained the language
of
DHS Regulation 70217 with minor
omissions, the standards
of
competent performance for nurses taken verbatim from section
1443.5
of
Title
16
of
the California Code
of
Regulations, and language regarding use
of
unlicensed personnel taken directly from AB 394 (and codified at Business and Professions
Code section 2725.3).
Lindsay explained to Cieszkiewicz that CNA drafted the revised proposal in response to
UC's concerns about whether the staffing ratio regulations were a mandatory subject
of
bargaining. 	When Cieszkiewicz asked what part
of
the proposal differed from the law,
Lindsay responded that the revised proposal eliminated references to non-represented
employees but still addressed "issues that are critical to the performance
of
the job."
Cieszkiewicz again asked
if
the revised proposal was "directly lifted from the la\v." Lindsay
replied, "This is our proposal. 	You can prepare a counter."
During bargaining on May 20, 2005, Cieszkiewicz responded to CNA's revised staffing
ratio proposal as follows:
With regard to App F., we took a look at it. What was it about
the provisions you put in there? Is there something we can
6

change? Most
of
App
Fis
a direct reflection
of
the law and we're
not interested in putting it in the contract since we abide by the
law and the overseer is the state agency. An arbitrator doesn't
decide on the rules for patient care.
If
a nurse wants to discover a
particular provision
of
this law, they could find them in the
hospital. We expect the law on staffing and our commitment to
abide by the law is acceptable.
When Lindsay replied that UC's commitment alone was not acceptable, Cieszkiewicz
·responded, "Then we'll have to find something else that is." Lindsay then explained that CNA
wanted the ratios in the CBA so that they would stay in place regardless
of
any change to the
regulations. He further stated,
"If
you need a record to rely on later in front
of
the arbitrator,
we'll give you one. There are arbitrators skilled on hospital issues." Cieszkiewicz then stated
that UC could not define nurse competencies because those are established by law. Lindsay
responded that external law is not a bar to parties negotiating for higher standards in a labor
contract. Cieszkiewicz ended the discussion by stating:
We don't see the necessity to put it in the contract since we've
agreed to abide by the law. Unless you can say something new
that can persuade me then we're not interested in putting it into
the contract.
Article 8(A)
of UC's last, best and final offer (LBFO) was unchanged from the 2002-
2005 CBA.
Request for PCS Information
On September 30, 2004, CNA made a written request for information in anticipation
of
bargaining over a successor to the 2002-2005 CBA. Item 38
of
the request sought:
Detailed descriptions of the patient classification system (PCS)
currently utilized at each facility and unit and any changes under
consideration. Provide written staffing plans developed and
implemented since January
1,
2002, documented on a shift by
shift basis, including: staffing requirements as determined by the
PCS, the actual staff and staff mix provided, and the variance
between required and actual staffing patterns. Provide reliability
testing performed on each system, and the results from such
testing and/or review, from January 1, 2002 to the present.
7

In response to this request, UC produced voluminous records
of
nurses' acuity sheets
for patients and the corresponding staffing determinations from the PCS, as well as analyses
of
the variations between the PCS determinations and actual staffing. UC also produced the
results
of
reliability testing for each PCS.
During bargaining on April 21, 2005, Lindsay clarified CNA's information request:
[T]he issue is that the information provided does not deal with the
heart
of
the issue
of
#3 8 - let me explain what we are looking for.
The request was for information on the patient classification
systems - what we received so far was instructions for nurses for
implementing acuity systems on each unit, not addressing how
the Patient Classification System actually works. To
oversimplify, RNs evaluate the acuity
of
patient illness using
various methods, that information is put through the system and
formulas are applied to determine staffing for the next shift. We
have not gotten the formulas on how it's applied and how the
numbers are determined on the other end.
Lindsay testified that CNA wanted the "formulas and methodology" used by the PCS to
convert the raw acuity data into staffing determinations.
At the April 27, 2005 bargaining session, Sharon Melberg (Melberg), assistant director
of
hospital and clinics at UC Davis Medical Center and a member
of
the UC bargaining team,
presented CNA with information about the Patient Index
of
Nursing Intensity (PINI) PCS in
use at the Davis medical center. Lindsay responded that the information was not responsive
because it did not contain the formulas used by the PINI system to generate staffing
determinations. Melberg replied that the PINI system was leased from a vendor and the
formulas used by the software were proprietary and not available to UC.4 Lindsay responded
4 Melberg testified that her statements to Lindsay were based on being told that
someone at the Davis medical center had written to the vendor requesting the formulas and the
request had been denied. However, the individual who allegedly contacted the vendor did not
testify and no documentary evidence of the request or denial is contained in the record. Absent
this evidence, Melberg's testimony on this point is uncorroborated hearsay that cannot support
a factual finding. (PERB Reg. 32176; PERB regs. are codified at Cal. Code of Regs., tit. 8, §
31001 et seq.)
8

that CNA believed the formulas were necessary "to evaluate proper staffing, CCL [current
contract language] & our proposal."
During bargaining on May 18, 2005, the parties discussed the information that had been
provided in response to CNA's April
21
request. Lindsay stated that all information provided
thus far was nonresponsive and renewed his request for information about how the PCS
operates, "including the actual method
of
translating the daily info into staffing."
At the June 9 bargaining session, representatives from the San Francisco, Los Angeles,
San Diego and Irvine medical centers made presentations about how the specific PCS in use at
those facilities operated. After the presentations, Cieszkiewicz stated:
With regard to the information you seek on staffing, every person
who is here uses a similar model where we really don't have the
formula in our possession. The organizations with whom we
contract have that, as it is proprietary.
Each
of
the medical center representatives confirmed that he or she did not have the
PCS formulas. 	Lindsay then stated: "On the proprietary info to the extent that you're saying
it's proprietary and it's 100%, we request a copy
of
the contracts that indicate that it's
proprietary."
During bargaining on June 22, 2005, Cieszkiewicz presented Lindsay with documents
in response to his June 9 request for PCS contracts. She presented him vvith two letters from
the law firm representing Catalyst Systems LLC (Catalyst), the vendor
of
the Evalisys PCS
used at the Los Angeles and San Francisco medical centers. The nearly identical letters stated
that Catalyst cannot honor UC's request to disclose the contracts to CNA because the
documents "contain confidential and proprietary information and trade secrets" and the terms
and conditions of the contracts prohibit UC from disclosing this material to third parties.
Cieszkiewicz also provided Lindsay with contracts for the PCS used at the Davis and
Irvine medical centers. The Davis contract materials contain a software licensing agreement
9

that obligates UC "to protect the copyright of the Program and to exercise reasonable controls
to protect the confidential nature of the Program and related copyrighted documentation unless
Contractor's written consent has been granted." The Irvine contract materials contain no
provision addressing the confidentiality of the software or its internal workings.
Cieszkiewicz told Lindsay that OGC was still working with the law firm on releasing
the Evalisys contracts for the San Francisco and Los Angeles medical centers and was also
working with the vendor of the PCS in use at the San Diego medical center to obtain that
contract. Lindsay responded: "For you as the employer to say that the critical pieces of
information are proprietary or to say you can't even give us copies of the contracts is mind
boggling, it makes it almost impossible for RNs to do their job." Cieszkiewicz replied:
I don't want you to misquote UC on this. It's not the UC that is
not releasing it, it's the attorney for the contractor. We are
working with OGC to get them, as soon as we can resolve it we
will get them to you. 	We have given you two locations.
Lindsay testified he did not believe Cieszkiewicz' s statements about not being able to
obtain the PCS contracts but admitted he had no objective basis for his belief. He also testified
that he told Cieszkiewicz he found the Davis and Irvine contracts difficult to read but could not
remember any other comments he might have made about them during that bargaining session.
The record does not indicate that CN,A,,_ renewed its request for the PCS formulas or
contracts after June 22, 2005. Nonetheless, UC provided CNA with a copy of the San Diego
medical center PCS contract on August 5, 2005. The software licensing agreement contained
in the contract stated that UC "acknowledges that the licensed program(s) contain valuable
trade secrets of Licensor and agrees to maintain the licensed program(s) confidentially and
secretly." There is no evidence that CNA ever discussed this document with UC after it was
provided.

Threatened Strike
On June 22, 2005, UC presented CNA with its LBFO. After discussing the terms of the
LBFO, Lindsay told Cieszkiewicz, "well we don't have to caucus to let you know that when
the nurses start voting next week we will recommend rejection." Cieszkiewicz asked if CNA
believed the parties were at impasse. Lindsay responded he did not think so "[b ]ecause of the
UC conduct in these negotiations regarding to your refusal to bargain over critical issues, RFI,
ignorance on RFI and your own proposals." According to UC's bargaining notes, UC
presented CNA with the PCS documents immediately after this exchange.
Later that day, CNA posted a recorded message on its negotiations hotline stating UC
had given CNA its LBFO and the bargaining team had informed UC it would be
recommending that its members reject the offer. The message also discussed a possible strike:
We will also recommend that nurses authorize the bargaining
team to call a strike to protest UC's continued bad faith
bargaining. The University has consistently refused to bargain
about our proposals regarding staffing and implications of new
technology; they have delayed or refused to provide necessary
information; and they have showed that they have no desire to
recruit or retain RNs at UC.
On June 23, 2005, CN,A~ issued a bargaining alert that stated, in relevant part:
Because UC's multiple unfair practices are so serious and part of
an overall UC plan to sabotage meaningful negotiations and good
faith agreement, the CNA team is asking nurses to authorize the
team to call a strike if necessary to protest UC's bad-faith
bargaining and their insulting final offer to the nurses. Effective
strike action now may be the only way to get UC to abandon its
illegal and destructive bargaining scheme and restore good faith
to the process so a fair contract can be negotiated and ratified.
From June 28 through July 7, 2005, a strike vote was held in the CNA bargaining unit.
The strike ballot gave members two choices: (1) reject the LBFO and "authorize the CNA
team to call an unfair labor practice strike if necessary;" or (2) accept the LBFO. Ninety-five
percent of those who voted chose the first option.
11

Though the 2002-2005 CBA expired by its terms on April 30, 2005, the parties agreed
during bargaining to extend its effective date until July
8,
2005. On that date, CNA gave UC
written notice
of
a 24-hour strike to begin at 6:45 a.m. on July 21, 2005 at all UC locations that
employ CNA-represented nurses. The notice gave the following reasons for the strike:
This strike will be undertaken to protest serious, substantial, and
pervasive unfair labor practices by the University
of
California
preceding and in the course
of
bargaining with CNA over a
successor agreement covering Registered Nurses employed by the
University in the exclusively, CNA-represented, statewide "NX"
bargaining unit.
UC unfair practices which have provoked this strike, include, but
are not limited to the following unremedied unlawful conduct:
• 	Refusal to bargain for new contract protections for competent
performance
of
professional RN responsibilities, and patient
safety which provide a financial disincentive to UC's chronic
understaffing
of
nurses and practice
of
forcing nurses to
accept patient care assignments under unsafe conditions.
• 	Retaliation against union leaders for exercising their
collective and individual rights intended and having the effect
of
undercutting support for CNA.
• 	Fraudulent concealment
of
unlawful and corrupt methods for
tying RN staffing levels to financial objectives rather than
patient care needs.
• 	Undertaking the conduct and practices described above as
well as other uniawful conduct in furtherance
of
a calculated
scheme to sabotage and avoid meaningful, good faith
bargaining over terms and conditions that are
of
critical
importance to both Registered Nurses and the patients they
care for and protect as patient advocates.
UC's persistent bad faith and deliberate sabotage
of
negotiations
has provoked direct action and strike activity by Registered
Nurses as the only avenue available to CNA-represented nurses to
vindicate their statutory rights and obtain meaningful bargaining
in genuine pursuit of a negotiated agreement.
Sometime after giving this notice, CNA issued a "One Day Strike Manual" to members
of the bargaining unit with a strike date of July 21, 2005. CNA officials' comments about the
pending strike were published in UC campus newspapers in early to mid-July. One of these
12

articles indicated that CNA had established an "emergency task force" to provide emergency
treatment to patients during the strike.
On July 15, 2005, Cieszkiewicz called Lindsay and asked
if
there was anything
UC
could do in negotiations to avoid the strike. Cieszkiewicz asked Lindsay which outstanding
issues were most important to CNA. Lindsay responded that wages, benefits, staffing ratios,
technology and lift teams were
CNA's
main unresolved issues. Cieszkiewicz asked
if
an
increase in
UC's
last offer on wages would avert the strike and Lindsay responded that it
would not.
Unfair Practice Charges and Strike Injunction
On June 16, 2005, just days before UC presented its LBFO, CNA filed its unfair
practice charge in this matter alleging that UC had engaged in bad faith bargaining by insisting
on a CBA provision prohibiting sympathy strikes and had retaliated against unit members by
disciplining them for sympathy strike activity. On June 29, CNA filed a first amended charge
that provided more factual allegations to support the violations alleged in the original charge.
On July 12, 2005, UC filed its unfair practice charge in this matter alleging that CNA
violated its duty to meet and confer in good faith by giving notice
of
its intent to engage in a
pre-impasse strike. UC also requested that PERB seek an injunction to prevent the strike from
occurring. Two days later, on July 14, CNA filed a second amended charge adding new
allegations that UC refused to bargain over staffing ratios and refused to provide requested
information.
On July 19, 2005, the Board granted UC's request for injunctive relief and PERB's
Office
of
the General Counsel issued a complaint on UC's charge. On July 20, the Sacramento
County Superior Court issued a temporary restraining order enjoining the strike. As a result,
CNA conducted a series of rallies at various UC facilities on July 21, 2005, instead of striking.
13

On July 26, 2005,
PERB's
Office
of
the General Counsel deferred to binding arbitration
the allegations in
CNA's
charge that UC violated HEERA by disciplining nurses for
participating in sympathy strike activity. Meanwhile, sometime in late July or early August,
the parties resumed bargaining over a successor CBA.
CNA filed a third amended charge on August 17, 2005, which provided further factual
allegations in support
of
the violations alleged in the second amended charge. On August 25,
the superior court issued a preliminary injunction that barred CNA from striking until the
parties completed the HEERA impasse procedures. On September 1, the parties sought
certification
of
impasse and appointment
of
a mediator by PERB.
On September 29, 2005,
PERB's
Office
of
the General Counsel issued a complaint
alleging that UC violated HEERA by: (1) refusing to bargain over its proposal to add language
prohibiting sympathy strikes to the CBA; (2) refusing to bargain over
CNA's
staffing ratio
proposal; and (3) refusing to provide CNA with requested PCS information. 5
In December 2005, during the statutory factfinding process, the parties reached
agreement on a CBA for the period
of
December 20, 2005 through June 30, 2007. The
grievances over UC' s discipline
of
nurses for participating in sympathy strike activity were
resolved as part
of
the agreement.
Proposed Decision
The ALJ concluded that UC refused to bargain about nurse-to-patient staffing ratios and
refused to provide relevant PCS information, but dismissed the allegations regarding
UC's
insistence on including a prohibition
of
sympathy strikes in the successor CBA. The ALJ
found that the subject
of
staffing ratios falls within the scope
of
representation because ratios
5 At the hearing, the ALJ granted CNA's oral motion to amend the complaint to allege
that UC conditioned reaching an overall agreement on CNA's acceptance of UC's proposal to
add language prohibiting sympathy strikes to the CBA.
14

affect the caseloads
of
individual nurses. He then concluded UC had refused to bargain over
CNA's staffing ratio proposal because "at no time did the University ever propose any
substantive change to the staffing ratio language, make a counterproposal, or affirmatively
acknowledge its obligation to bargain over CNA's proposal." The ALJ found this to be a per
se violation
of
UC's statutory duty to meet and confer in good faith with CNA.
Regarding the request for PCS information, the ALJ found that the "formulas and
methodology"
of
the various PCS were necessary and relevant to CNA's bargaining over
staffing issues. He then concluded UC had not established its defense that the information was
confidential because UC had not made a good faith effort to bargain with CNA over providing
the information in an alternate form that would avoid disclosure
of
confidential material. The
ALJ ordered UC to "[u]pon request, negotiate over the disclosure
of
the formulas and
methodology
of
its patient classification systems."
Turning to the threatened strike, the ALJ found that HEERA does not contain a
prohibition on strikes and therefore a strike provoked by an employer's unfair practices is
lawful under HEERA. He then concluded that CNA's threatened strike constituted an unfair
practice strike because it was provoked by UC's bad faith bargaining.
UC's Exceptions
UC excepts to each
of
the ALJ's conclusions discussed above but does not except to the
dismissal
of
the allegations regarding UC's insistence on including a prohibition
of
sympathy
strikes in the successor CBA. Regarding staffing ratios, UC argues that the subject is not
within the scope
of
representation because staffing decisions are a management prerogative.
Even
if
staffing ratios are within scope, UC contends, the record shows that UC did in fact
bargain over CNA's staffing ratio proposal. As to the information request, UC asserts that it
provided adequate justification for its failure to disclose the PCS formulas and methodologies,
15

as well as the vendor contracts for some of the PCS, because UC requested that information
from the PCS vendors and the vendors refused to provide the information.
UC argues first that a strike prior to the completion of statutory impasse procedures is
per se illegal under HEERA. As an alternative, UC maintains that CNA's threatened strike
was unlawful because the weight of the evidence shows the strike ,vas undertaken to force UC
to make concessions at the bargaining table and not to protest UC's unfair practices. UC also
asserts that the ALJ improperly relied upon evidence ofUC's discipline of nurses for
participating in sympathy strike activity to determine CNA's motive for threatening to strike.
Finally, UC requests that the Board re-open the record in this matter to allow UC to present
evidence to support an award of damages to make UC whole for the losses it incurred as a
result of CNA's unlawful strike threat.
CNA's Response to Exceptions
CN A responds to each of UC' s exceptions but does not raise any exceptions of its own.
CNA argues that its staffing ratio proposal was within the scope of representation because,
while state law may set a minimum standard in a particular area, parties may agree to greater
protections in a CBA. CNA also asserts the ALJ correctly determined that UC had not actually
bargained over the staffing ratio proposal. Regarding the request for PCS information, CNA
contends the evidence failed to establish that confidentiality interests precluded the disclosure
of the PCS formulas and vendor contracts.
As to the threatened strike, CNA points out that PERB precedent clearly recognizes the
lawfulness of an unfair practice strike at any time and argues that CNA need only prove UC's
unfair practices were a motivating factor in its decision to strike, not the sole reason for the
strike. CNA does not address UC's request to re-open the record for the taking of evidence to
support an award of damages.
16

DISCUSSION
Neither party has excepted to the ALJ's dismissal
of
the allegations regarding
UC's
insistence on including a prohibition
of
sympathy strikes in the successor CBA. Accordingly,
those allegations are not before the Board. (PERB Reg. 32300(c).)6 Allegations regarding
UC's
discipline
of
nurses for participating in sympathy strike activity were deferred to binding
arbitration and subsequently resolved. Therefore, those allegations also are not before the
Board.
1.
Staffing Ratio Proposal
The ALJ found that the subject
of
nurse-to-patient staffing ratios is within the scope
of
representation and that UC refused to bargain over CNA's proposal to include specific staffing
ratios in the successor CBA. For the reasons discussed below, we agree that
CNA's
staffing
ratio proposal was within the scope ofrepresentation but conclude that UC fulfilled its
obligation under HEERA to bargain in good faith over the proposal.
a.
Scope
of
Representation
Under HEERA, the scope
of
representation is generally limited to wages, hours, and
other terms and conditions
of
employment. In determining
if
non-enumerated matters fall
within the scope
of
representation as a "term or condition
of
employment," PERB applies a
three-part test. A subject is within the scope ofrepresentation if: (a) it involves the employment
relationship; (b) the subject is
of
such concern to management and employees that conflict is
likely to occur, and the mediatory influence
of
collective negotiations is the appropriate means
of
resolving the conflict; and (c) the employer's obligation to negotiate would not significantly
abridge its freedom to exercise those managerial prerogatives (including matters of fundamental
6 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq. PERB Regulation 32300(c) provides in full: "An exception not specifically
urged shall be waived."
17

policy) essential to the achievement
of
the employer's mission. (Trustees
of
the California State
University (2001) PERB Decision No. 1451-H.)
Applying the nearly identical test for negotiability
of
non-enumerated subjects under
the Educational Employment Relations Act (EERA),7 the Board has "determined that
'workload,' that is, the quantum
of
work to be completed during the workday, is negotiable."
(Mt. Diablo Unified School District (1984) PERB Decision No. 373b.) In Davis Joint Unified
School District (1984) PERB Decision No. 393, the Board held that a certificated employee
organization's proposal to establish a specified ratio between certain specialist employees and
students was within the scope
of
representation. The Board observed that the more students
assigned to each specialist, the more work each specialist would be required to perform during
the workday. The Board also noted that the ratio would not necessarily infringe on the school
district's right to determine staffing levels because the district could control staffing levels by
increasing or decreasing the number
of
students who received the services provided by the
specialist employees.
CNA's staffing ratio proposal is analogous to the proposal in Davis Joint Unified
School District, supra. CNA proposed that Article 8(A) be amended to include the nurse-to-
patient staffing ratios set forth in regulations adopted by DHS pursuant to AB 394. Those
ratios specify that an individual nurse be assigned no more than a certain number
of
patients
per shift based on the type
of
unit and the particular patients' care needs. Because the amount
of
work a nurse must do on a particular shift depends on the number
of
patients to whom he or
she is assigned, nurse-to-patient staffing ratios determine the workload of individual nurses.
Moreover, staffing ratios do not interfere with the employer's prerogative to determine staffing
levels because the employer may control staffing levels by increasing or reducing the number
7 EERA is codified at Government Code section 3540 et seq.
18

of
patients admitted to a particular hospital unit. Accordingly, we find that CNA's proposal to
incorporate specific staffing ratios into the CBA fell within the scope
of
representation under
HEERA.
In its exceptions, UC contends, however, that CNA's proposal was not within the scope
of
representation because the proposal merely sought to incorporate existing law into the
CB.A.
In Healdsburg Union High School District and Healdsburg Union School District/San Mateo
City School District (1984) PERB Decision No. 375, the Board examined an employee
organization's proposal to include in the CBA anti-discrimination language drawn from federal
and state civil rights statutes. The Board found that "inclusion
of
contractual provisions
prohibiting discrimination merely reiterates management's existing obligations under state and
federal law and, therefore, does not invade any managerial prerogative." The Board concluded
that the proposal to add anti-discrimination language was within the scope
of
representation.
Here, CNA's proposal sought to incorporate the language
of
existing state statutes and
regulations into the CBA. UC admitted during bargaining that it had an obligation to comply
with those statutes. Thus, to the extent CNA's proposal merely sought to reiterate UC's
existing legal obligations, it was within the scope
of
representation.
But CNA's proposal also would have allowed CNA to enforce the staffing ratios
contained in external law via the grievance procedures in the CBA. When state law sets a
minimum standard on a particular subject, parties are free to negotiate more generous terms in
a CBA provided the contract term does not circumvent or eviscerate the statutory standard.
(Fremont Unified School District (1997) PERB Decision No. 1240.) Further, PERB has found
that contractual grievance procedures are an appropriate means of settling disputes, such as
discrimination claims, that might otherwise be resolved in the courts. (San Mateo City School
District, supra.) Accordingly, the fact that CNA's proposal sought to make staffing ratios
19

established by outside regulations enforceable through the contractual grievance procedure did
not remove the proposal from the scope
of
representation.
In sum, we conclude that the entirety
of
CNA's staffing ratio proposal was within the
scope
of
representation. Consequently, UC was obligated to meet and confer in good faith
with CNA over the proposal.
b.
Refusal to Bargain
In determining whether an employer has violated HEERA section 3571, subdivision (c)
by refusing or failing to meet and confer in good faith with an exclusive representative, PERB
utilizes either the "per se" or "totality
of
the conduct" test, depending on the specific conduct
involved and the effect
of
such conduct on the negotiating process. (Stockton Unified School
District (1980) PERB Decision No. 143.) An absolute refusal to meet and confer on a subject
within the scope
of
representation is a per se violation. (Sierra Joint Community College
District (1981) PERB Decision No. 179.) PERB has found an absolute refusal to bargain when
the employer failed to provide the union with any rationale for its proposal to maintain the
status quo. (San Mateo County Community College District (1993) PERB Decision No. 1030.)
On
i..1..
thP
,_,
.a....,
othPr \...I..
_...._
....__..._
hanrl ..l-
-.,
--.
!=!rlam!'.lnt
.I..
\A-.1...L
,n_,1·
.1..1..1.U
<!tP.nf'F'
U\..V.I..
""-'"""
An
'-1.l.l.
\A,
ci
barge11'n
.I.
\.I,
.l. 1.l..l.ng pos 1
.I.L.L
+1on.I..L is .I. .I.not necessar1'ly a
refusal to bargain in good faith. (Oakland Unified School District ( 1982) PERB Decision
No. 275.) "The obligation
of
the employer to bargain in good faith does not require the
yielding
of
positions fairly maintained." (National Labor Relations Bd.
v.
Herman Sausage
Co. (5th Cir. 1960) 275 F.2d 229, 231.) PERB has found an employer to have engaged in
"hard bargaining," rather than a refusal to bargain, when the employer's proposal to maintain
the status quo was supported by rational arguments that were communicated to the union
during bargaining. (California State University (1990) PERB Decision No. 799-H; Oakland
Unified School District (1981) PERB Decision No. 178.) "The obligation to negotiate includes
20

expression
of
one's opposition in sufficient detail to permit the negotiating process to proceed
on the basis
of
mutual understanding." (Jefferson School District (1980) PERB Decision
No. 133.)
An employer's refusal to discuss a proposal based on its perception that the proposal
concerns a subject outside the scope
of
representation is a per se violation
of
the duty to
bargain in good faith. 	(Sierra Joint Community College District, supra.) Here, there was no
refusal to bargain because UC never denied the negotiability
of
CNA's staffing ratio proposal
during bargaining8 and, in fact, discussed its substantive objection to the proposal on numerous
occas10ns.
During the first two bargaining sessions at which the parties discussed the staffing ratio
proposal, February 17 and March 2, 2005, Cieszkiewicz indicated she was still discussing the
negotiability
of
the proposal with OGC. Also at the March 2, 2005 session, Cieszkiewicz told
Lindsay that UC did not want the staffing ratios in the CBA because UC did not want an
arbitrator, rather than a judge, to decide whether the law was violated.
At the April 20, 2005 session, Cieszkiewicz told Lindsay that UC was willing to
bargain over the effects
of
the ratios but that UC did not want an arbitrator interpreting the
staffing ratio law. She also said that incorporating the language
of
AB 394 and the
corresponding DHS regulations into the CBA would require the parties to discuss every part
of
the statute and regulations to create a record
of
the parties' intent for future arbitration. 	During
this discussion, Cieszkiewicz also stated, "The University doesn't believe that putting
bargaining ratios into the contract is not something you can take us to impasses [sic] over."
8 Although UC now argues in its exceptions that staffing ratios are not a mandatory
subject of bargaining, there is no evidence that UC took this position during bargaining with
CNA in 2005.
21

At the opening of bargaining on April 29, 2005, Cieszkiewicz told Lindsay that UC is
not proposing any change to Article 8 and that UC will keep its commitment to abide by
existing law on staffing ratios as reflected in the 2002-2005 CBA. Later in the session, CNA
passed a revised proposal that merely stripped the language of AB 394 and the DHS
regulations of code section references and added a section of standards of competent
performance for nurses taken directly from regulations adopted by the Board of Registered
Nursing. When Cieszkiewicz asked how the proposal differed from the law, Lindsay
responded that UC was free to make a counterproposal.
At the May 20, 2005 bargaining session, Cieszkiewicz told Lindsay that UC had
reviewed CNA's revised proposal, found it to be lifted directly from the law and reiterated
UC's position that it would not agree to incorporate the law into the CBA because it did not
want an arbitrator to interpret the law. Cieszkiewicz again stated UC's position that it wanted
to keep the language regarding staffing ratios contained in the expiring contract. After further
discussion, Cieszkiewicz stated:
We don't see the necessity to put it in the contract since we've
agreed to abide by the law. Unless you can say something new
that can persuade me then v1e're not interested in putting it into
the contract.
Viewed as a whole, UC's conduct during bargaining does not indicate a refusal to
bargain over CNA's staffing ratio proposal. Instead, UC's conduct was strikingly similar to
conduct PERB has found in prior cases to constitute "hard bargaining."
For example, in Oakland Unified School District, supra, PERB Decision No. 178, the
district rejected a proposal to give classified employees earlier notice of layoff and stated that
it would not submit a counterproposal. As reasons for the rejection, the district stated that it
needed to maintain flexibility in light of financial uncertainty resulting from the passage of
Proposition 13 and did not want to interject an arbitrator into the decision to layoff employees.
22

Without ruling on the merits
of
the district's position, the Board found it was supported
by
legitimate and reasonable arguments and that "the District's response was not, on its face,
spurious or superficial, but calculated to inform the Association
of
the problems posed
by
the
proposal." Based on these findings, the Board held that the district had not engaged
in
bad
faith bargaining.
The Board ruled similarly in California State University, supra. In that case, the parties
were bargaining over parking fees. CSU did not make a counterproposal to the union's initial
proposal but stated at the table and in informal discussions with union representatives that it
could not agree to anything other than a uniform parking fee schedule because it needed
revenue to finance construction
of
new parking facilities. The Board found CSU's position
"was not unsupported by rational arguments" and concluded that CSU' s conduct, "when
viewed in the context
of
the parking negotiations, is more like hard bargaining than bad faith
bargaining."
We reach the same conclusion in this case regarding
UC's
conduct. On at least four
separate occasions, UC informed CNA that it would not agree to incorporate staffing ratios
into the CBA because it did not want an arbitrator to decide whether the staffing ratio law had
been violated. Without passing on the merits
of UC's position, we find that it was supported
by rational arguments and thus UC's refusal to move from that position constituted hard
bargaining rather than a refusal to bargain.
CNA argues that UC denied the negotiability
of
the staffing ratio proposal when
Cieszkiewicz stated at the April 20, 2005, bargaining session that UC did not believe CNA
could take UC to impasse over the staffing ratio proposal.9 However, when viewed in the
9 It is an unfair practice for a party to insist to impasse on a proposal concerning a non-
mandatory subject of bargaining. (South Bay Union School Dist.
v.
Public Employment
23

context
of
Cieszkiewicz's statements and conduct before, during and after the April 20
bargaining session, this comment cannot singlehandedly support a finding that UC considered
the proposal to be outside the scope
of
representation.
CNA also contends that UC did not bargain in good faith because it never made a
counterproposal on staffing ratios. Yet the record shows UC presented counterproposals on
March 16 and 17, 2005, in which UC proposed to maintain the existing language
of
Article
8(A). However, even
if
UC had not made a counterproposal on section A, its failure to do so
would not, by itself, have constituted a violation
of
HEERA. (California State University,
supra; Oakland Unified School District, supra, PERB Decision No. 275.)
Nor was UC obligated to make a counterproposal in response to CNA's modified
staffing ratio proposal
of
April 29, 2005. Prior to that date, UC had consistently objected to
incorporating staffing ratio laws and regulations into the CBA verbatim. CNA's April 29
proposal still sought to do just that. Accordingly, in light
of
UC's prior objections, the
April 29 proposal was "predictably unacceptable" and UC was not required to respond
differently than it had to the original proposal. (Oakland Unified School District, supra, PERB
Decision No. 178.)
In sum, we conclude that, with regards to CNA's staffing ratio proposal, UC adamantly
insisted on a bargaining position supported by rational arguments that were communicated to
CNA at the bargaining table. UC never denied the proposal was negotiable or refused to
discuss the proposal. Accordingly, we dismiss the allegation that UC violated HEEPJi~ section
3571, subdivision (c) by refusing to meet and confer in good faith with CNA over the staffing
ratio proposal.
Relations Bd. (1991) 228 Cal.App.3d 502, 507; Lake Elsinore School District (1986) PERB
Decision No. 603.)
24

2. Request for PCS Information
The ALJ found that the PCS formulas and vendor contracts requested by CNA were
necessary and relevant to CNA's bargaining proposals and that UC violated HEERA by
refusing to bargain over how to provide the PCS information in a manner that would avoid
disclosure of confidential information. For the reasons discussed below, we agree that the
information requested by CNA was necessary and relevant but conclude that UC fulfilled its
obligation under HEERA to provide the requested information.
a. Necessary and Relevant Information
The exclusive representative is entitled to all information that is "necessary and
relevant" to the discharge of its duty of representation in collective bargaining. (Stockton
Unified School District, supra.) An employer's refusal to provide such information violates
the duty to bargain in good faith. (Regents of the University of California (1991) PERB
Decision No. 891-H.)
PERB uses a liberal standard, similar to a discovery-type standard, to determine the
relevance of the requested information. (Trustees of the California State University (1987)
PERB Decision No. 613-H.) Information immediately pertaining to a mandatory subject of
bargaining is presumptively relevant. (Regents of the University of California (2004) PERB
Decision No. 1700-H; State of California (Departments of Personnel Administration and
Transportation) (1997) PERB Decision No. 1227-S.)
,A~s concluded above, nurse-to-patient staffing ratios are a mandatory subject of
bargaining. The PCS software used by the UC medical centers determines the appropriate
nurse-to-patient staffing ratio for each shift. CNA's April 21, 2005 request for the "formulas
and methodology" used by the PCS was aimed at determining the means by which staffing
ratios are calculated. Accordingly, because the requested information pertained to a mandatory
25

subject of bargaining, it was presumptively relevant and UC was required to produce the
information absent a valid justification for not doing so.
b. Production of PCS Information
An exclusive representative's right to information is not absolute and PERB has
recognized employer defenses for refusing to provide relevant information based on
"justifiable circumstances." (State of California (Departments of Personnel Administration
and Transportation), supra.) For example, an employer is not obligated to provide
information that is unavailable to it. (King City Joint Union High School District (2005)
PERB Decision No. 1777; State of California (Department of Consumer Affairs) (2004) PERB
Decision No. 1711-S.) As with all defenses to production of relevant information, the
employer bears the burden of proving that the requested information was unavailable.
(Bakersfield City School District (1998) PERB Decision No. 1262.)
"[W]here information requested by a union is in the possession of third parties with
whom an employer has a business relationship, such as a subcontractor, the employer is
obligated to make a good-faith, reasonable effort to obtain the information from such parties."
(NYP Holdings, Inc. (2008) 353 NLRB No. 67, *23.) If the third party refuses to provide the
information, the employer is not required to do anything more to satisfy its statutory
obligation. (Pittston Coal Group, Inc. (2001) 334 NLRB 690, 692-693.)
Applying the above principles, we find that some of the requested information was
unavailable to UC. On June 9, 2005, in response to UC's assertion that the formulas and
methodology for the PCS in use at all of its medical centers were proprietary, Lindsay
requested UC's contracts with the PCS vendors. At the June 22 bargaining session,
Cieszkiewicz provided Lindsay with two letters from the law firm representing Catalyst, the
vendor of the Evalisys PCS in use at the Los Angeles and San Francisco medical centers. The
26

nearly identical letters stated that Catalyst cannot honor UC's request to disclose the contracts
to CNA because the documents "contain confidential and proprietary information and trade
secrets" and the terms and conditions
of
the contracts prohibit UC from disclosing this material
to third parties. These letters show that UC requested the PCS formulas and contracts from the
Evalisys vendor and that the vendor refused to provide both. This satisfied UC's obligation
under HEERA. Therefore, we conclude UC did not refuse to provide requested information
regarding the PCS in use at the Los Angeles and San Francisco medical centers.
As to the Davis and Irvine medical centers, Cieszkiewicz provided Lindsay with
documents during the June 22, 2005 bargaining session that she represented to be the vendor
contracts for the PCS in use at those locations. Lindsay testified that he told Cieszkiewicz the
documents were difficult to read. However, he could not recall any other comments he made
about the documents and neither party's bargaining notes contain any statement by Lindsay
regarding the contracts.
When an employer partially complies with an information request and the exclusive
representative fails to communicate its dissatisfaction, or reassert or clarify its request, no
violation will be found. (Trustees
of
the California State University (2004) PERB Decision
No. 1732-H; Oakland Unified School District (1983) PERB Decision No. 367.) The record
does not indicate that Lindsay expressed dissatisfaction with the documents produced, or
reasserted or clarified CNA's request for PCS information on or after June 22, 2005.
A
l..v'VV.l.U-J..
,.,.,.,.,.r1;ngly J.
' we
CArtr>lnrlA
VJ...i.VJ..U\..i......,
UC
d1'd
..lnot
l,
r""fiU"'"'
V.J..
U"-' tr>
\.V
J:-'.l.
nrov1·d,,
,._,
.l.'\,.'
r
13
qnAct
.,_.._.,....,
13
...,~
r1
;n.cormat1'on
.l.J..
11
.J...l. ahrn,t
V....,_;,
thP \..--'-.i....,
...L
PCS•
in use at the Davis and Irvine medical centers.
Regarding the San Diego medical center, Cieszkiewicz told Lindsay during bargaining
on June 22, 2005, that OGC was still working to obtain a copy of the contract from the vendor.
UC ultimately provided CNA with a copy of the San Diego PCS contract on August 5, 2005.
27

The record does not indicate that CNA ever expressed dissatisfaction with the documents
produced on August 5, or reasserted or clarified its request for PCS information on or after that
date. Consequently, we conclude UC did not refuse to provide requested information
regarding the PCS in use at the San Diego medical center. Further, because UC had to obtain
the vendor's approval to disclose the contract to CNA, we find that UC's delay in providing
the San Diego PCS contract was reasonable and therefore did not amount to a refusal to
provide the information. (See Chula Vista City School District (1990) PERB Decision No. 834
["Unreasonable delay in providing requested information is tantamount to a failure to provide
the information at all."]; Union Carbide Corp. (1985) 275 NLRB 197,201 [delay in producing
requested information may be found reasonable when the delay was justified by the
circumstances].)
In sum, we conclude that UC satisfied its statutory obligation to provide information in
response to CNA's request for the PCS "formulas and methodology" and vendor contracts.
Accordingly, we dismiss the allegation that UC violated HEERA section 3571, subdivision (c)
by refusing to provide CNA with necessary and relevant information regarding the PCS.
3. Threatened Strike
The ALJ found that HEERA does not prohibit strikes and that a strike provoked by an
employer's unfair practices is lawful under HEERA. He then concluded that CNA's
threatened strike was not an unfair practice because it was provoked by UC's bad faith
bargaining, refusal to provide information and discipline of nurses for participating in
sympathy strike activity. For the reasons discussed below, we agree that unfair practice strikes
are lawful under HEERA but conclude that CNA's threatened strike was not an unfair practice
strike and therefore violated HEERA section 3571.1, subdivision (c).
28

a. 	Legality of Strikes under HEERA
Neither PERB nor the courts have addressed the legality of strikes under HEERA. In
the face of this silence, UC urges the Board to adopt the principle expressed in the lead opinion
in Compton Unified School District (1987) PERB Order No. IR-50 that, because the statute
does not explicitly grant a right to strike, any strike is a per se violation of the statute. An
examination of decisions addressing the legality of strikes under EERA is instructive on this
point.
In San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, the California
Supreme Court declined to address the legality of public employee strikes but nonetheless held
that a strike prior to the completion of EERA' s statutory impasse procedures could constitute
an "illegal pressure tactic" in violation ofEERA section 3543.6, subdivisions (c) and (d). 10
(Id. at pp. 8-9.) Four years later, PERB held in Modesto City Schools (1983) PERB Decision
No. 291 that EERA grants public school employees a right to strike. In 1985, a plurality of the
California Supreme Court recognized that a strike by public employees is lawful under the
common law unless the strike "creates a substantial and imminent threat to the health or safety
of the public." (County Sanitation Dist. 1\/o. 2 v. Los Angeles County Employees' Assn. ( 1985)
38 Cal.3d 564, 586.) The Court also found that nothing in the Meyers-Milias-Brown Act
(MMBA) 11 prohibits strikes by employees of local government agencies. (Id. at pp. 572-573.)
In Compton Unified School District, supra, a majority of the Board overruled Modesto
City Schools, supra. The lead opinion found that EERA. prohibits all strikes, even in the face
10 EERA section 3543.6, subdivision (c) makes it unlawful for an employee
organization to "[r]efuse or fail to meet and negotiate in good faith with a public school
employer of any of the employees of which it is the exclusive representative." Subdivision (d)
of that section makes it unlawful for an employee organization to "[r]efuse to participate in
good faith in the impasse procedure set forth in [EERA]."
11 The MMBA is codified at Government Code section 3500 et seq.
29

of
the Court's ruling in County Sanitation District
No. 2,
supra, that the similar language
of
the
MMBA contains no such prohibition. Though it did not rely on County Sanitation Dist. No. 2,
supra, the concurring opinion found no prohibition on strikes in the language
of
EERA and
returned to the approach taken by the Supreme Court in San Diego Teachers' Assn., supra, that
whether a strike is an unfair practice is to be determined by the facts
of
the particular case.
PERB has taken this approach in subsequent decisions addressing strikes. (Santa Maria Joint
Union High School District (1989) PERB Order No. IR-53; Vallejo City Unified School
District (1993) PERB Decision No. 1015.) Furthermore, and
of
particular relevance to this
case, Compton Unified School District, supra, did not overrule prior PERB decisions
recognizing the legality
of
unfair practice strikes.
As the above authority indicates, it is well-established that EERA does not prohibit all
strikes by public school employees. We find nothing in the language
of
HEERA that compels
a different conclusion regarding employees
of
higher education employers. Thus, we reject
UC's argument that any strike constitutes a per se violation
of
HEERA.
In the alternative, UC argues that PERB should declare any strike at a health care
institution to be a per se violation
of
HEER.A "due to the extreme risk to public health and
safety" posed by such a strike. The legality
of
strikes at private sector health care institutions
has been recognized since at least 1974, when the National Labor Relations Act (NLRA) 12
was
amended to bring health care institutions under the jurisdiction
of
the National Labor Relations
Board (NLRB). (See 29 U.S.C. § 158, subd. (g) [requiring union to give 10 days notice prior
to strike at any health care institution].) Moreover, whether a strike at a health care institution
poses an imminent threat to public health or safety is to be determined on a case-by-case basis.
12
The NLRA is codified at 29 U.S.C. section 151 et seq.
30

(County Sanitation Dist.
No.
2,
supra, 38 Cal.3d at
p.
585.) Accordingly, we decline to adopt a
rule that any strike at a health care institution is per se an unfair practice.
Given the similarity between the language and purpose
of
EERA and HEERA, we hold
that HEERA does not prohibit strikes by employees
of
higher education employers. We also
hold that whether a strike constitutes an unfair practice is to be determined on the facts
of
the
particular case.
b.
Legality
of
CNA 's Strike Threat and Preparations
It is undisputed that the strike noticed by CNA would have occurred as scheduled on
July 21, 2005, had the superior court not enjoined it. Because the strike never took place, we
must decide whether the threat to strike and CNA's preparations leading up to the strike
constituted an unfair practice in and
of
themselves.
In South Bay Union School District (1990) PERB Decision No. 815, the Board held that
a strike threat and strike preparations prior to the exhaustion
of
statutory impasse procedures
may constitute an unfair practice
if
the threat and preparations were intended to place pressure
on the employer to reach agreement at the bargaining table. The Board examined the
employee organization's conduct under the "totality
of
the circumstances" test but did not
identify any specific factors to guide PERB's determination
of
when a strike threat and
preparations constitute an unfair practice.
After considering PERB's prior decisions regarding strike activity, we believe that, to
constitute an unfair practice, a strike threat and preparations must be: (1) in furtherance
of
an
unlawful strike; and (2) sufficiently substantial to create a reasonable belief in the employer
that the strike will occur. Our analysis in this case begins with the lawfulness of CNA's
threatened strike.
31

A strike prior to the exhaustion of statutory impasse procedures creates a rebuttable
presumption that the employee organization is refusing either to negotiate in good faith (if the
strike occurs before impasse is declared) or to participate in the impasse procedures in good
faith. (Sacramento City Unified School District (1987) PERB Order No. IR-49; Westminster
School District (1982) PERB Decision No. 277; Fresno Unified School District (1982) PERB
Decision No. 208; Fremont Unified School District (1980) PERB Decision No. 136.) The
presumption of illegality is rebuttable, however, by proof that the strike was provoked by the
employer's unfair practices and that the employee organization in fact negotiated and/or
participated in impasse procedures in good faith. (Westminster School District, supra; Fremont
Unified School District, supra.) Absent such proof, the presumption stands, and a violation is
established. (Westminster School District, supra; Fresno Unified School District, supra.)
To establish that a strike is an unfair practice strike, the employee organization must
prove that: 	(1) the employer committed an unfair practice (Basic Industries, Inc. (2006)
348 NLRB 1267, 1274); and (2) the employer's unfair practice provoked the strike (Rio Hondo
Community College District (1983) PERB Decision No. 292). As the Board explained in
Rio Hondo Community College District, supra:
Provocation is a question of fact. 	Under the NLRA, for a strike
to be deemed an unfair practice strike, it must be caused by an
unfair labor practice. The mere fact that an unfair labor practice
is committed prior to a strike does not necessarily render that
strike an unfair practice strike. 	[Citations.] Rather, the burden
rests with the striking employee organization to prove, in the
nature of an affirmative defense, that the District's unfair labor
practice in fact caused the strike. To ascertain the actual cause of
a strike, it is necessary to consider the record as a whole
[citation], including such indicators as union statements as to the
cause of the strike in testimony [citation] at the time a strike vote
was taken, or in the content of picket signs and handbills used
during the strike [citation], the closeness in time between the
unfair practice and the strike, union expression of opposition to
the unfair practice prior to the strike [citation], and the nature and
32

seriousness
of
the unfair practice, as well as any other relevant
evidence.
We need not reach the issue
of
provocation because CNA has failed to prove that UC
committed any unfair practices. As discussed above, CNA failed to prove that UC bargained
in bad faith over CNA's staffing ratio proposal or refused to provide requested PCS
information. Further, the ALJ's conclusion that UC did not bargain in bad faith over its
proposal to add a prohibition
of
sympathy strikes to the "no strike" clause
of
the CBA stands
because neither party excepted to it. (City
of
Torrance (2009) PERB Decision No. 2004; Palos
Verdes Peninsula Unified School District/Pleasant Valley School District (1979) PERB
Decision No. 96.) Thus, none
of
the unfair practices alleged in the complaint were proven by
CNA.
In addition to the evidence introduced in support
of
the three allegations in the
complaint, the ALJ also considered evidence
of
UC's discipline
of
nurses for engaging in
sympathy strike activity in determining provocation for the strike. UC contends that the ALJ
improperly admitted this evidence over UC's relevance objection and improperly considered it
in the proposed decision. We agree on both points.
As discussed above, to establish that a strike was an unfair practice strike, the employee
Or
fS
nan1zat1nn
.1..L.L
1..1.V.1..1.
mnct
.1..J.\..J...J\,
'-'l.,)I.UV.1..1....:J.l.1.
pc,f,::,1-,],c,1, th<>t
l-.1.H,,tl,
+1,,, 1,.1.J.\o.l \o.1.1.U-J:-'.1
pn-onlouAr
]
'-'.1.
"nmm1'++ed \o.lV.1.1.
J...1.
\,\,
an
unf:a,
J.
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.. p
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\,,'
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.1.
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all,,nat;on
1-.lVf:,
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.l
that UC unlawfully disciplined nurses for engaging in sympathy strike activity was deferred to
binding arbitration on July 26, 2005. Thus, as the ALJ acknowledged in the proposed decision,
PERB could not find that UC's discipline
of
nurses constituted an unfair practice. Therefore,
any evidence regarding that discipline was not relevant and should not have been admitted or
considered by the ALJ.
Based on the totality of the circumstances, we conclude CNA failed to rebut the
presumption that its threatened pre-impasse strike was an unfair practice because it did not
33

prove that UC engaged in any unfair practices that could have provoked CNA's strike.
Instead, we find the record clearly demonstrates that CNA's threat
of
strike and strike
preparations were done for the purpose
of
placing pressure on UC to reach agreement at the
bargaining table prior to the exhaustion
of
statutory impasse procedures.
13
Turning to CNA's strike threat and preparations, it is difficult to imagine pre-strike
conduct more substantial than CNA's in this case. CNA members took a much-publicized
strike vote from June 28 through July 7, 2005, with over
95
percent
of
the bargaining unit
voting in favor
of
a strike. On July 8, 2005, CNA gave UC written notice
of
a 24-hour strike to
begin at 6:45 a.m. on July 21, 2005, at all UC locations that employ CNA-represented nurses.
Sometime after notice was given, CNA issued a "One Day Strike Manual" to members
of
the
bargaining unit with a strike date
of
July 21, 2005. CNA officials' comments about the
pending strike were published in UC campus newspapers in early to mid-July. One
of
these
articles indicated that CNA had established an "emergency task force" to provide emergency
treatment to patients during the strike. Based on this undisputed evidence, we find that CNA's
strike threat and preparations were sufficiently substantial to support a reasonable belief by UC
that the strike would occur as noticed.
For these reasons, we find that CNA failed to meet and confer in good faith in violation
of
HEERA section 3571.1, subdivision (c) by credibly threatening to engage in, and making
extensive preparations for, a pre-impasse economic strike.
14
13
Because we find CNA's threatened strike was unlawful on these grounds, we need
not address whether the strike would have been unlawful under County Sanitation District No.
2, supra, as an imminent threat to public health and safety.
14 Because we find CNA's threatened strike would have constituted an unfair practice,
we need not and do not address whether the threat of, or preparations for, a lawful strike could
constitute an unfair practice.
34

4.
Remedy
Prior to the hearing, CNA filed a motion in limine to exclude evidence
of
strike-related
damages, or in the alternative, to bifurcate the hearing and only take evidence
of
damages
if
it
was determined that CNA's threatened strike was unlawful. The ALJ granted the motion,
ruling that the amount
of
monetary loss can be determined in compliance proceedings and
declining to rule on CNA's argument that PERB has no statutory authority to award strike
damages. In its exceptions, UC contends that
if
the Board finds CNA's strike threat and
preparations violated HEERA, it should reopen the record to allow UC to present evidence
of
damages it sustained as a result
of
CN
A's
unfair practice. To determine
if
further evidence is
necessary, we must first address whether PERB may award damages in this matter.
15
a.
P ERB
's
Authority to Award Make Whole Damages for Unlawful Strike Activity
The Board's remedial powers are set forth in HEERA section 3563.3:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including, but not
limited to, the reinstatement
of
employees with or without back
pay, as will effectuate the policies
of
this chapter.
The issue
of
PERB's authority to award damages for unlawful strike activity has arisen
in several cases. (Los Angeles Unified School District (1990) PERB Decision No. 803;
El Dorado Union High School District (1985) PERB Decision No. 537; Westminster School
District, supra.) In each case, the record failed to establish that the employer suffered any
15
Amicus curiae University Council - American Federation of Teachers and University
Professional and Technical Employees, CWA Local 9119, contend that the Board should
remand this issue to the ALJ. Typically, the Board will remand a case to an ALJ for further
hearing when additional factual evidence is necessary to decide the case. (San Diego Unified
School District (1991) PERB Decision No. 885.) PERB's remedial authority is a purely legal
issue that does not require the presentation of additional facts by the parties. Moreover, the
Board has the authority to issue a decision in a case without an ALJ having previously
rendered a proposed decision. (PERB Reg. 32215.) Accordingly, we find no reason to remand
this issue to the ALJ.
35

actual monetary loss as a result
of
the strike activity. Accordingly, the Board has never ruled
on whether it has the authority to award damages as a component
of
make whole relief for
unlawful strike activity.
UC contends that an award
of
damages is both authorized by HEERA and appropriate
in this case. Conversely, CNA and amici curiae proffer several reasons why the Board lacks
authority to award damages. For the following reasons, we hold that PERB has the authority to
award damages to make an employer whole for expenses necessarily incurred or economic
harm suffered as a direct result
of
unlawful strike activity.
"An administrative agency may - consistently with the 'judicial powers' doctrine -
make restitutive money awards provided (i) doing so is reasonably necessary to effectuate the
administrative agency's primary, legitimate regulatory purposes, and (ii) the 'essential' judicial
power remains ultimately in the courts, through review
of
agency determinations." (McHugh
v.
Santa lvfonica Rent Control Bd. (1989) 49 Cal.3d 348, 359.) In Walnut Creek Manor
v.
Fair
Employment and Housing Comm. (1991) 54 Cal.3d 245, the California Supreme Court
delineated the scope
of
an administrative agency's remedial authority. Applying McHugh,
supra, the Court held that administrative agencies have the inherent authority to award
"restitutive damages," which it defined as "expenditures incurred or economic harm suffered
by one party in consequence
of
another party's violation
of
a law or regulation the agency is
empowered to enforce." (Id. at p. 263.) The Court observed that "[r]estitutive damages, in
short, are akin to special damages, i.e., they are quantifiable amounts
of
money due an injured
private party from another party to compensate for the pecuniary loss directly resulting from
the second party's violation of law." (Ibid.) The Court thus upheld the Fair Employment and
Housing Commission's (Commission) award of "out-of-pocket expenditures for increased rent
and utilities" to a plaintiff who had been unlawfully denied housing because of his race and
36

marital status.	
(Id.
at
p.
266.) The Court found such damages were easily quantifiable and
incidental to the Fair Employment and Housing Act's (FEHA) regulatory purpose
of
preventing discrimination in housing.
16
(Id.
at pp. 263-264.)
The Court further held that, in the absence
of
express statutory authorization,
administrative agencies have no authority to award compensatory or punitive tort damages.
(Id.
at
p.
264.) Rather, those types
of
damages may only be awarded by a court. (Ibid.; Youst
v.
Longo (1987)
43
Cal.3d 64, 80.) Accordingly, the Court ruled that the Commission
exceeded its authority by awarding the plaintiff damages for emotional distress.	
(Id.
at p. 265.)
PERB
's
interpretation
of
its remedial authority has been consistent with the rule set
forth in Walnut Creek Manor, supra. PERB has long recognized that it has broad authority to
award "make whole" relief to remedy an unfair practice, including an award
of
out-of-pocket
expenses. (County
of
San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M;
Los Angeles Unified School District (2001) PERB Decision No. 1469; West Covina Unified
School District (1993) PERB Decision No. 973; Temple City Unified School District (1990)
PERB Decision No. 841.) Nonetheless, PERB's remedial authority is limited to remedies that
address rights granted by the applicable statute. "Not every individual monetary or other
personal loss related to a violation
of
[the statute] is compensable under PERB law."
(Hacienda La Puente Unified School District (1997) PERB Decision No. 1186.) Thus, the
Board has held PERB has no authority to award damages for emotional or psychological injury
resulting from an unfair practice. (State
of
California (Secretary
of
State) (1990) PERB
Decision No. 812-S.) The Board has also recognized that PERB's power to remedy unfair
practices does not allow PERB to award punitive damages. (Mark Twain Union Elementary
16
The FEHA is codified at Government Code section 12900 et seq.
37

School District (2003) PERB Decision No. 1548; State
of
California (Secretary
of
State),
supra.)
CNA and amici curiae assert that PERB cannot award make whole damages for
unlawful strike activity because HEERA does not expressly grant PERB the authority to award
such damages. In support
of
this argument, CNA and amici curiae rely on Dyna-Med, Inc.
v.
Fair Employment and Housing Comm. (1987)
43
Cal.3d 1379, and Peralta Community College
Dist.
v.
Fair Employment and Housing Comm. (1990) 52 Cal.3d 40. In Dyna-Med, supra, the
Court held that the FEHA did not authorize the Commission to award punitive damages.
(43 Cal.3d at p. 1404.) Similarly, the Court ruled in Peralta Community College Dist., supra,
that the FEHA did not grant the Commission authority to award damages for emotional
distress. (52 Cal.3d at p. 60.) Both
of
these decisions involved damages that went beyond
making the injured party whole for monetary losses directly attributable to the statutory
violation. Indeed, the decisions addressed precisely the type
of
damages, punitive and
emotional distress damages, that PERB has expressly held it has no authority to award.
Therefore, because they do not address make whole relief, Dyna-Med, supra, and Peralta
Community College District, supra, do not preclude PERB from awarding "restitutive
damages" to make a public employer whole for expenses necessarily incurred or economic
harm suffered as a direct result
of
unlawful strike activity.
In a similar vein, CNA and amici curiae contend the California Supreme Court has held
that injunctive relief is the only remedy available for unlawful public sector strike activity. \Ve
disagree that El Rancho Unified School Dist.
v.
National Education Assn. (1983) 33 Cal.3d
38

946, 17 and City and County of San Francisco v. United Assn. of Journeymen etc. of United
States & Canada (1986) 42 Cal.3d 810, can be read so broadly.
In El Rancho Unified School Dist., supra, the Court found that PERB's inability to
award the full array of damages available in a civil tort action did not divest PERB of exclusive
initial jurisdiction over ,vhether a strike constitutes an unfair practice. (Id. at p. 960.) In
discussing why PERB is a more appropriate body than the courts for determining the proper
remedy for unlawful strike activity, the Court suggested that an injunction, with the possibility
of contempt sanctions for its violation, would better accomplish the Legislature's goal of
curtailing public school employee strikes than "an after-the-harm-is-done award of damages."
(Id. at p. 961.) However, the Court did not hold, as CNA asserts, that injunctive relief is the
only remedy available for unlawful strike activity.
In City and County of San Francisco, supra, the Court held that "until the Legislature
enacts to the contrary, the illegality of a strike without more is not grounds for a damage suit
by the employer." (Id. at p. 819.) In reaching this conclusion, the Court observed that public
employee strikes are now governed by specific collective bargaining statutes and courts should
not create judicial remedies that conflict with the remedies provided by those statutes. (Id. at
17 UC asks the Board to take judicial notice of three briefs filed with the Supreme Court
in El Rancho Unified School District, supra. PERB may take judicial notice of materials from
other legal proceedings when the materials are relevant to issues before the Board. (The
Regents of the University of California, University of California at Los Angeles Medical
Center (1983) PERB Decision No. 329-H.) Because the Supreme Court's decision in El
Rancho Unified School District, supra, speaks for itself, we find the briefs are not relevant to
this matter and therefore decline to take judicial notice of them.
UC also asks the Board to take judicial notice of two temporary restraining orders. The
first, issued by the Sacramento Superior Court against CNA on July 20, 2005, is already a part
of the record in this matter. The second, issued by the San Francisco Superior Court against
the American Federation of State, County and Municipal Employees, Local 3299, on July 11,
2008, is not relevant to the issues before the Board in this matter. Accordingly, we decline to
take judicial notice of the July 11, 2008 injunction.
39

p. 816.) Nevertheless, the Court also recognized that some types of strike damages fall outside
the purview of collective bargaining statutes and thus may be awarded by the courts, such as
damages for "tortious acts occurring during the conduct of a strike," e.g. personal injury or
property damage, or damages for breach of a contractual "no strike" clause. (Id. at p. 819.)
CNA places particular reliance on the following passage from this decision:
There remain today relatively few cases in which the imposition
of a judicial remedy of tort damages would not impinge directly
upon an established administrative mechanism for resolving
disputes between a public employer and its employees. The
possible scope of a damage remedy has been so greatly narrowed
that one senses that it would be fundamentally unfair to hold a
few public employee unions liable for damage awards when
teachers' unions, state employee unions, and many local
employee unions would not be liable for the same conduct.
(Id. atp. 816.)
We disagree that this language precludes PERB from ordering any damages to remedy
unlawful strike activity. Consistent with .A1cHugh, supra, and Walnut Creek Manor, supra, we
find this passage merely states the Court's view that, because teachers' unions, state employee
unions and other unions under the jurisdiction of PERB would not be liable for the full array of
damages available in a civil tort action, it would be unfair to impose such broad liability on the
union representing the City's plumbers. 18
Taken together, these Supreme Court decisions establish that: 	(1) courts may not award
damages for unlawful strike activity by public employees, except in the limited circumstances
set forth in City and County of San Francisco, supra, and (2) PERB cannot award the full array
of damages available in a civil tort action. Significantly, in none of these decisions did the
18 The striking employees in City and County of San Francisco, supra, were subject to
the MMBA. At the time of the Court's decision, the MMBA was enforced in the courts.
Effective July 1, 2001, the Legislature granted PERB jurisdiction over the MMBA (with a few
exceptions). (Stats. 2000, ch. 901, § 8.)
40

Court hold that PERB has no authority to award damages to make an employer whole for
unlawful strike activity. Consequently, these decisions simply say that it is for PERB, not the
courts, to decide in the first instance whether a monetary make whole remedy would effectuate
the purposes
of
the applicable collective bargaining statute on the facts
of
each case.
19
CNA and amici curiae further argue that PERB lacks authority to award damages for
unlawful strike activity because the Agricultural Labor Relations Board (ALRB) has no such
authority. In support
of
this argument, CNA and amici curiae rely heavily on a court
of
appeal
case interpreting the Agricultural Labor Relations Act (ALRA).20
In United Farm Workers
of
America
v.
Agricultural Labor Relations
Bd.
(1995)
41
Cal.App.4th 303, the court held that
ALRA section 1160.3
21
does not grant the ALRB "the authority to award compensatory
damages to persons injured in their business or property" by a union's unlawful secondary
boycott.	
(Id.
at p. 325.) This case has no bearing on PERB's authority to award strike
damages as part
of
make whole relief for three reasons.
First, United Farm Workers
of
America, supra, did not involve damages as part
of
a
make whole remedy but rather an award
of
compensatory damages to a grocery retailer that
19
An award
of
damages by PERB is subject to judicial review pursuant to HEERA
section 3564, subdivision (b ).
20
The
.(A~LR.{L\
is codified
at
Labor Code section 1140 et seq.
21
ALRA section 1160.3 provides, in relevant part:
If, upon the preponderance
of
the testimony taken, the board shall
be
of
the opinion that any person named in the complaint has
engaged in or is engaging in any such unfair labor practice, the
board shall state its findings of fact and shall issue and cause to
be served on such person an order requiring such person to cease
and desist from such unfair labor practice, to take affirmative
action, including reinstatement of employees with or without
backpay, and making employees whole, when the board deems
such relief appropriate, for the loss of pay resulting from the
employer's refusal to bargain, and to provide such other relief as
will effectuate the policies of this part.
41

suffered monetary losses
as
a result
of
unlawful secondary boycott activity by the farmworkers
union. The instant case, however, does not involve a secondary boycott. Thus, the court
of
appeal's ruling that the ALRB did not have statutory authority to award compensatory
damages for unlawful secondary strike activity does not provide guidance on whether PERB
can award make whole damages for unlawful primary strike activity.
Second, the statutory provisions setting forth the remedial powers
of
the ALRB and
PERB are different. ALRA section 1160.3 "authorizes its make-whole remedy against
employers but not labor organizations." (Ibid.) HEERA section 3563.3 contains no similar
limitation. HEERA was enacted three years after the ALRA. Thus, had the Legislature
intended to include a similar limitation on PERB' s remedial authority in HEERA, it
presumably knew how to do so. (Rojo
v.
Kliger (1990) 52 Cal.3d 65, 75.) Given the
difference in language between the two provisions, we cannot interpret HEERA section 3563.3
to contain the same limitation on the Board's remedial authority that ALRA section 1160.3
imposes on the ALRB. (Cumero
v.
Public Employment Relations Bd. (1989) 49 Cal.3d 575,
596.)
Third, the limitation on the ALRB's remedial authority appears to be unique to the
agricultural labor relations context because unions have been ordered to pay damages to an
employer under other labor relations statutes. For example, the NLRB has ordered a union
found to have bargained in bad faith to pay the employer's negotiation expenses. (Teamsters
Local 122 (August A. Busch & Co.) (2001) 334 NLRB 1190, 1195.) In that case, the NLRB
held that a traditional affirmative bargaining order would not restore the status quo because of
the financial losses suffered by the employer, "financial losses which the Respondent directly
caused, and intended to cause, by its strategy of bad faith bargaining." (Ibid.) The NLRB has
also ordered a union to reimburse an employer for expenses incurred under a CBA when the
42

employer's agreement to the CBA was coerced by the union's illegal strike. (National Labor
Relations
Bd.
v.
Warehousemen's Union Local 17 (9th Cir. 1971)
451
F.2d 1240, 1243; United
Slate, Tile & Composition Roofers, Local 3 6 (Roofing Contractors Assn.
of
So.
Cal.) ( 1968)
172 NLRB 2248, 2252.) Thus, under the NLRA, a union may be ordered to pay damages to
make the employer whole for expenses incurred as a result
of
the union's refusal or failure to
bargain in good faith.
Paralleling their ALRB argument, CNA and amici curiae assert that PERB has no
authority to award damages for unlawful strike activity because the NLRB cannot do so.
However, the cases cited in support
of
this argument do not involve damages as part
of
a make
whole remedy. In both Dyna-Med, Inc, supra, and Peralta Community College District, supra,
the California Supreme Court observed that federal courts have held the NLRA limits the
monetary remedy for an unfair labor practice to back pay. (Dyna-Med, Inc, supra,
43
Cal.3d at
p. 1397; Peralta Community College Dist., supra, 52 Cal.3d at p. 59.) However, the cases
cited in support
of
the Court's observation held that the NLRB has no authority to award
punitive or general compensatory damages, such as emotional distress damages. As noted
above, PERB has previously held it has no authority to award such damages.
Nor are the NLRB decisions cited by amici curiae availing. District 1199, Union
of
Hospital and Health Care Employees (Francis Schervier Home and Hospital) (1979)
245 NLRB 800, and Iron Workers Local No. 783 (BE&K Construction Co.) (1995) 316 NLRB
1306, both held that the NLRB lacked authority to order a union to reimburse an employer for
property damage caused by the union during an unlawful strike. As the California Supreme
Court clearly held in City and County
of
San Francisco, supra, such damages are compensable
in a civil action in California and thus are not awardable by PERB. ( 42 Cal.3d at p. 819.)
43

In National Maritime Union (The Texas Co.) (1948) 78 NLRB 971, a union committed
an unfair labor practice by engaging in a strike that caused the employer to accept a hiring hall
contract that discriminated against non-union members. (Id. at pp. 975-979.) The NLRB held
that the monetary remedy for the unfair labor practice was limited to back pay for the
discharged employees. (Id. at pp. 988-989.) Relying on legislative history, the NLRB found
that by granting federal courts jurisdiction to hear suits seeking damages for certain types of
unlawful strike activity, Congress intended to preclude the NLRB from awarding strike
damages other than back pay. (Id. at pp. 989-991.) Here, the legislative history of HEERA is
silent regarding both strikes and the remedies therefor.22 Thus, unlike National Maritime
Union, supra, there is no clear indication that the Legislature intended to prohibit a make
whole award of damages for unlawful strike activity under HEERA.
Additionally, the argument that PERB should follow the NLRB on this matter fails to
consider important differences between private and public sector collective bargaining. It is
well-established that Congress, in enacting the NLRA, intended to leave certain "economic
weapons" umegulated by the Act. (Machinists v. Wisconsin Employment Relations Comm 'n
(1976) 427 U.S. 132, 143-144.) Hence, one of labor's most important "economic weapons,"
the pre-impasse economic strike, is not an unfair labor practice under the NLRA unless it
violates one of the Act's prohibitions on specific strike activity. (See National Labor
Relations Bd. v. Fleetwood Trailer Co. (1967) 389 U.S. 375, 379 [legal economic strike is
protected activity under NLRA]; 29 U.S.C. § 158, subd. (b) [listing specific types of illegal
22 We grant CNA's request that the Board take judicial notice of two legislative history
documents. The first, Senate Floor Analysis of AB 1091 (which would eventually be enacted
as HEERA), dated August 29, 1978, states that the bill is "[s]ilent on the issue of strikes or
lockouts." The second, an Assembly Republican Caucus memorandum dated May 31, 1977,
notes that AB 1091 "does not mention 'the right to strike' and therefore current law prohibiting
strikes prevail."
44

strike activity].) Similarly, a private employer may lawfully exert economic pressure on a
union before impasse is reached by locking out employees. (American Ship Building
Co.
v.
National Labor Relations Bd. (1965) 380 U.S. 300, 310.) Moreover, a private employer faced
with a pre-impasse economic strike may hire permanent replacement workers. (National
Labor Relations
Bd.
v.
Mackay Radio & Telegraph
Co.
(1938) 304 U.S. 333, 346.)
California's public sector collective bargaining statutes do not establish a similar
scheme
of
unregulated pre-impasse "economic weapons." Both the California Supreme Court
and PERB have long held that an economic strike prior to the completion
of
statutory impasse
procedures is presumptively an unfair practice because it amounts to an "illegal pressure
tactic." (San Diego Teachers Assn., supra, 24 Cal.3d at pp. 8-9; Westminster School District,
supra; Fresno Unified School District, supra.) Additionally, public employers lack the
"economic weapons" that private employers possess. Because a public agency must continue
to provide services to the public, a lockout is usually not a viable option in the public sector.
(Fremont Unified School District (1990) PERB Order No. IR-54.) Moreover, it is rarely
feasible for a public employer to hire permanent replacements for striking workers, particularly
when the bargaining unit, like the one in this case, is geographically extensive and includes
many employees with highly specialized skills. Thus, for all practical purposes, a public
employer lacks the "economic weapons" to effectively combat a pre-impasse economic strike.
Once the parties have exhausted the statutory impasse procedures, a union may lawfully
engage in an economic strike and the employer may lawfully implement terms and conditions
of
employment reasonably comprehended within its last, best and final offer. (Public
Employment Relations Bd.
v.
Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 900,
citing National Labor Relations Bd.
v.
Katz (1962) 369 U.S. 736, 745.) An economic strike
prior to the completion of impasse procedures constitutes a failure to participate in impasse
45

procedures in good faith. (Westminster School District, supra; Fresno Unified School District,
supra; Fremont Unified School District, supra, PERB Decision No. 136.) Likewise, when an
employer unilaterally implements terms and conditions of employment prior to completion of
impasse procedures, it has failed to participate in the impasse procedures in good faith.
(Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983)
142 Cal.App.3d 191, 205.) In such cases, PERB orders the employer to undo the unilateral
change and make employees whole for any losses suffered as a result of the employer's unfair
practice. (E.g., Regents of the University of California (2004) PERB Decision No. 1689-H
[ordering that employees be reimbursed for additional health care premiums paid as a result of
employer's unilateral change in premium contributions]; Oakland Unified School Dist. v.
Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1015 [affirming Board order
requiring school district "to reimburse employees' expenses incurred as a result of the change
in [health plan] administrators"].)
CNA and amici curiae assert that PERB cannot order an employee organization to make
an employer whole for monetary losses caused by an economic strike that constitutes a failure
to participate in impasse procedures in good faith. A system whereby a failure to participate in
impasse procedures in good faith subjects an employer, but not an employee organization, to
monetary liability is contrary to the express purpose of HEERA "to foster harmonious and
cooperative labor relations." (Regents of the University of California (1999) PERB Decision
No. 1359-H.) This is so because absent the potential award of a monetary make whole
remedy, a public sector employee organization could use a pre-impasse economic strike to
pressure the employer into granting bargaining concessions with no potential harm to either the
organization or its members, other than members' loss of pay during the strike, because the
employer can neither lockout employees nor hire permanent replacements. Thus, an award of
46

damages to make the employer whole for unlawful strike activity furthers the purpose
of
HEERA by maintaining the relative bargaining power
of
the parties until the statutory impasse
procedures have been completed.
CNA and amici curiae argue that imposing a remedy in this case would "necessarily
have a chilling effect on the exercise
of
lawful collective bargaining rights and would radically
alter the delicate balance
of
power embedded in HEERA's current form." CNA's plan to
strike, however, was made for the purpose
of
exerting economic pressure on UC by
withholding quality healthcare from California citizens. As such, this conduct was neither
lawful nor protected. To suggest that imposing a remedy for illegally leveraging the health and
safety
of
patients for the purpose
of
economic gain would somehow have a chilling effect on
the exercise
of
lawful collective bargaining rights is, at the very least, disingenuous. Indeed,
the only conduct that might be "chilled" by an award
of
damages in this case is pre-impasse
strike activity that PERB has long held to be an unfair practice.
For the above reasons, we hold that HEERA section 3563.3 grants PERB the authority
to order an employee organization to pay damages to make an employer whole for necessary
expenses incurred and economic losses suffered as a direct result
of
the employee
organization's unlawful strike activity prior to the completion
of
statutory impasse procedures.
This holding encompasses not just damages arising from a strike itself but also any
damages incurred as a direct result
of
the strike threat and preparations. Because a threat of,
and preparations for, an unlawful strike constitute an unfair practice in and
of
themselves, the
remedy for unlawful pre-strike activity is not dependent on the occurrence
of
a strike or on the
existence of recoverable damages resulting from the strike. A contrary holding would allow an
employee organization to escape liability for damages caused by its activity in preparation for
47

an unlawful strike by calling
off
the strike at the last minute or by engaging in such conduct
with the knowledge that a court will likely enjoin the strike.
Additionally, a holding that PERB may award make whole damages for unlawful strike
activity does not mean that PERB must or will award damages in every case. As the California
Supreme Court observed in San Diego Teachers' Assn., supra, PERB' s authority to fashion an
appropriate remedy for an unfair practice includes the "discretion to withhold as well as pursue
the various remedies at its disposal." (24 Cal.3d at p. 13.)
We also emphasize that our holding does not diminish the importance
of
seeking
injunctive relief to prevent an unlawful strike from occurring nor do we hold or imply that
damages are a substitute for injunctive relief. To this end, we reaffirm the Board's holding in
Fresno Unified School District, supra, that damages will not be awarded unless the employer
first seeks "to mitigate its losses or bring about the termination
of
the strike by requesting that
PERB seek an injunction against it." The failure to seek injunctive relief may also be a factor
in determining whether the employer sought to mitigate damages arising from a strike threat or
strike preparations.
b.
	Determination
of
Compensable Damages for Unlawful Strike Activity
For guidance in determining what damages are compensable as make whole relief for
unlawful strike activity, including a strike threat and strike preparations, we turn to the Board's
decision in Westminster School District, supra. In that case, the employee organization
engaged in a one-day strike that the Board found to be an unfair practice. The district sought
to recover the cost
of
substitute teachers for the day, the printing and mailing
of
letters to
parents informing them of the strike, a substitute teacher training session and overtime for
employees who staffed a telephone tree in order to communicate in the event of a strike. The
Board found that the substitute training session and telephone tree were not a direct result of
48

the strike because neither "served to obtain substitutes or otherwise insure student attendance
and compensation therefore." Rather, the benefits derived from them,
if
any, were "highly
speculative and incapable
of
quantification." The Board then found that the district's savings
on striking teachers' salaries was more than the district expended on substitute teachers and the
printing and mailing
of
letters to parents. Accordingly, the Board found "no compensable loss
as a result
of
the strike."
Thus, compensable damages include, but are not limited to, the cost
of
replacement
workers and revenue lost because
of
the unlawful strike activity. The employer's pre-strike
preparations are compensable only
if
they were necessary to maintain continuity
of
operations
during the strike and proper to mitigate any reasonably foreseeable effects
of
the strike. Any
expenses whose benefits were speculative or cannot be quantified, or that were only indirectly
related to the strike, are not compensable. Further, the employer's expenses and losses are to
be offset by any savings realized as a result
of
the strike activity.
Because the ALJ excluded all evidence
of
strike-related damages, the record before us
contains no evidence upon which we can ascertain whether UC is entitled to damages as part
of
a make whole remedy. Accordingly, the record must be reopened to allow UC to introduce
relevant evidence
of
its expenses, losses and savings from July 8, 2005, when CNA gave notice
of
its intent to strike, until July 20, 2005, when the superior court enjoined the strike.
ORDER
Upon the foregoing findings of fact and conclusions
of
law and the entire record in this
matter, it is found that the California Nurses Association violated the Higher Education
Employer-Employee Relations Act (HEERA), Government Code section 3571.1, subdivision
(c) by threatening to engage in a one-day strike on July 21, 2005, and engaging in preparations
for that strike. The Board hereby REMANDS Case No. SF-CO-124-H to the Administrative
49

Law Judge to take evidence on the issue
of
the Regents
of
the University
of
California's
damages and to make recommended findings
of
fact and conclusions
of
law solely
on the
issue
of
damages.
The amended complaint and underlying unfair practice charge in Case
No. SF-CE-762-H are hereby DISMISSED.
Member McKeag joined in this Decision.
Member N euwald' s concurrence and dissent begins on page 51.
50

NEUWALD, Member, concurring and dissenting: 	I agree with my colleagues that the
California Nurses Association (CNA) violated the Higher Education Employer-Employee
Relations Act (HEERA) by threatening to engage in, and preparing for, an unlawful pre-
impasse strike. I respectfully dissent, however, from the determination that an award of strike
preparation damages is appropriate under the circumstances of this case.
In this case, the injunctive relief remedy afforded by HEERA was entirely effective to
terminate CNA's threatened strike activity. CNA gave sufficient notice of its intent to strike to
enable the Regents of the University of California to invoke the Public Employment Relations
Board's (PERB) authority to seek injunctive relief. Given that CNA complied immediately
with the injunction and the parties have now participated in the statutory mediation and
factfinding process and reached an agreement, the legislative goal of developing harmonious
and cooperative labor relations has been achieved. (HEERA, § 3560(a).)1 I believe that in this
case the availability to PERB of injunctive relief and contempt sanctions "are far more likely to
accomplish the Legislature's goal of 'foster[ing] constructive employment relations(§ 3540)'
and 'the longrange minimization of work stoppages' than an after-the-harm-is-done award of
damages." (El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946,
961.) Because the injunction and subsequent utilization of the statutory mediation and
factfinding process were successful in enabling the parties to reach an agreement, awarding a
monetary remedy at this time would not serve to foster harmonious and cooperative labor
relations and is therefore unwarranted.
1 HEERA section 3560(a) states: "The people of the State of California have a
fundamental interest in the development of harmonious and cooperative labor relations
between the public institutions of higher education and their employees."
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