Salinas Valley Memorial Healthcare System (PERB 2433M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NATIONAL UNION OF HEALTHCARE
WORKERS,
Charging Party,
v.
SALINAS VALLEY MEMORIAL
HEALTHCARE SYSTEM,
Res ondent.
Case No. SF-CE-797-M
PERB Decision No. 2433-M
June 15, 2015
Appearances: Siegel, LeWitter & Malkani by Latika Malkani, Attorney, for National Union
of
Healthcare Workers; Law Offices
of
Anne Frassetto Olsen by Anne Frassetto Olsen, Attorney,
for Salinas Valley Memorial Healthcare System.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions to a proposed decision (attached) pursuant to the remand order
contained in Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M
(Salinas Valley I). Salinas Valley I directed the PERB Office
of
the General Counsel to issue a
complaint alleging that the Salinas Valley Memorial Healthcare System (Hospital) failed to
meet and confer over the effects and implementation
of
layoffs before implementing those
layoffs. Specifically, the complaint alleged that the Hospital violated the Meyers-Milias-
Brown Act (MMBA)1 and PERB Regulation 32603(a), (b), and (c)2 by refusing to negotiate
with National Union of Healthcare Workers (NUHW) over the timing, number and identity
of
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

employees to be laid off in December 2010, and over the impact and effects
of
the layoffs on
remaining employees.
After a two-day evidentiary hearing, the administrative law judge (ALJ) dismissed the
complaint, having determined that NUHW had failed to prove that the Hospital had refused to
negotiate over the number, timing and related effects on laid off employees or over the effects
of
the layoff on those employees who remained in the Hospital's employ, or had prematurely
proceeded with the layoff prior to reaching impasse. The ALJ further concluded that the
Hospital had satisfied the test set forth in Compton Community College District (1989) PERB
Decision No. 720 (Compton), i.e., that delay in implementation
of
the layoff would
compromise the Hospital's managerial prerogative to reduce labor costs. NUHW excepted to
the ALJ's proposed decision.
The Board itself has reviewed the record in this matter in its entirety in consideration
of
the issues raised by NUHW' s exceptions, including the pleadings, the hearing record, the
proposed decision, NUHW's exceptions and the Hospital's response. We conclude that the
ALJ's findings
of
fact are adequately supported by the record as a whole, and adopt them as
our own, as supplemented by this decision. We also adopt the ALJ's conclusions oflaw,
except as discussed below.
DISCUSSION
Factual Summary
The essential facts are not in dispute, and NUHW does not except to any factual finding
in the proposed decision. We briefly summarize the facts for the purpose
of
discussion.
NUHW was certified on October 25, 2010,3 as the exclusive representative of a
bargaining unit of service and technical employees, having successfully decertified Service
3 All dates refer to 2010 unless otherwise noted.
2

Employees International Union-United Healthcare West (SEIU-UHW). On November 9 the
Hospital's Chief Operating Officer, Beverly Ranzenberger (Ranzenberger), notified
John Borsos (Borsos), NUHW's vice president/secretary treasurer,
of
an urgent need to meet
and confer over layoffs. She asked NUHW to provide several possible dates within the
following two weeks for discussions. NUHW had not yet assembled a bargaining team.
As early as Summer 2010, the Hospital learned that it would be losing its Blue Cross
Tier 1 status (a preferred reimbursement status) on January
1,
2011, which would lead to
increased costs to patients covered by Blue Cross. Since another hospital in the area would
have Tier 1 status as
of
January
1,
2011, the Hospital predicted that a certain number
of
patients would elect to be admitted to the other hospital in order to take advantage
of
lower
costs, thereby reducing the Hospital's patient census (or number
of
patients occupying beds).
Ranzenberger had determined that independent
of
the loss
of
the Tier 1 status, the Hospital's
patient census had decreased dramatically in 2010 because
of
fewer elective surgeries in light
of
the economic recession. Consequently, there was less work to be done at the Hospital. The
Hospital decided to implement layoffs before January 1, 2011, in part, because
of
these factors.
The parties first met concerning this issue on November 17. Ranzenberger notified
NUHW
of
the Hospital's decision to lay off about 100 bargaining unit members, or 57.7 full-
time equivalents (FTEs), by the end
of
2010 and explained the reasons for the decision,
including the decrease in patient census, and the loss
of
Tier 1 status. NUHW asserted that the
decision to lay off employees was a mandatory subject
of
bargaining and demanded to bargain
over the layoff decision, as well as the effects. According to NUHW Field Representative
Ernie Gonzales (Gonzales), NUHW demanded to bargain over how the work assignments of
the laid off employees would be distributed to the remaining employees, and the safety impact
of the additional workload for remaining employees. However, according to Gonzales, the
3

Hospital only wanted to bargain over the effects on the employees who were going to be laid
off, including recall rights, bumping, and severance payments, but not over the effects on
remaining employees.
The parties did not meet again until December 7, but between the initial meeting and
December 7, the parties exchanged numerous e-mails, most
of
which represented NUHW' s
assertions that the decision to lay
off
was a mandatory subject
of
bargaining and that the
Hospital had not provided sufficient justification for the layoffs. The Hospital disputed both
assertions, and provided requested information regarding
job
classifications to be reduced, the
current number
of
employees, and the number
of
FTEs the Hospital anticipated reducing. The
Hospital also asked NUHW to make proposals on such negotiable effects as seniority, bumping
rights, re-employment rights, severance payments, and continuation
of
health and welfare
benefits. However, the Hospital also maintained that its timeline for implementing the layoffs
was by the end
of
2010.
The parties met again on December 7 and 8. The Hospital reiterated its determination
to move forward with the layoffs, as its patient census was down and it anticipated an
additional drop in patient census after losing Blue Cross Tier 1 status. On December 7, the
Hospital also declined NUHW' s November 22 request to combine negotiations over a
successor memorandum
of
understanding (MOU) with negotiations over the effects
of
layoff,
claiming that it needed to first conclude negotiations on the effects
of
layoffs.4 The Hospital
presented NUHW with a written proposal on December 7, addressing how and when
employees would be notified
of
the layoffs, as well as proposing a six-month rehire list
containing criteria including employee skills, qualifications, pending disciplinary actions, and
4 NUHW renewed its demand on December 6, asserting that negotiations over both
issues were one and the same. On December 7, Ranzenberger·again refused to begin
negotiations on a successor MOU and insisted on discussing the effects of layoff first.
4

seniority. There was no evidence that NUHW responded to this proposal or made a counter-
proposal concerning the timing
of
layoffs.
The parties held another bargaining session on December
8,
butthere is little evidence
about what transpired during this meeting. However, on the same day, Ann Kern (Kern), the
Hospital's executive administrative director, e-mailed Borsos: "In anticipation
of
our
concluding the effects bargaining negotiations on the upcoming reduction in force soon, we are
prepared to enter into contract negotiations with NUHW and would like to receive your
proposal." Kern offered a list
of
seven possible dates between December 10 and December 23.
There is no evidence that NUHW responded to this invitation prior to the end
of
2010.
However, the Hospital rejected NUHW's repeated requests to combine negotiations over
effects
of
layoffs with bargaining over a successor MOU. According to the Hospital, it
declined to combine these negotiations because
of
the timeframe in which the staff reductions
needed to occur and its perception that MOU negotiations could not be completed before the
end
of
2010.
The parties had a total
of
seven bargaining sessions between November 17 and
December 27, all devoted to the impending layoffs. The Hospital firmly maintained its
position that it had the authority to unilaterally determine. that a layoff was required, while
NUHW repeatedly voiced its position that the decision to lay off employees was negotiable.
Particularly significant was the meeting
of
December 21. By this time, the Hospital
had announced that the number
of
FTEs to be reduced by the end
of
the year had decreased
to 11.9, or approximately 20 employees.5 Responding to Borsos' insistence on reviewing each
5 One point of contention between the parties was the Hospital's alleged refusal to
provide to NUHW the names of employees to be laid off. While the Hospital initially provided
NUHW with the total number of employees and the FTE reduction it planned, it did not
initially provide the names because it did not want to pre-empt NUHW's anticipated proposals
for selecting who would be laid off, i.e., by seniority or some other method. Ranzenberger
5

department to more fully understand how the reductions would affect patient care,
Ranzenberger asserted that employee work schedules would not change dramatically, and that
after the layoffs, the Hospital would use per diem employees and other strategies to fill
schedule gaps. The parties discussed preferential re-hire rights, but NUHW offered no
response or counter-proposal to the Hospital's proposal on re-hire rights. The Hospital
expressed urgency concerning the impending notification to employees. NUHW returned from
a caucus, criticized the Hospital's written proposal for purportedly being incomplete, and
proposed the creation
of
a supplemental unemployment benefit, which, according to the
Hospital, would have cost $100,000. NUHW continued to maintain that the Hospital was
obligated to bargain over its decision to lay
off
employees.
The Hospital rejected NUHW's proposal on supplemental .unemployment benefits and
announced that it was "moving forward." Borsos responded, "We're done," which
Ranzenberger interpreted as a declaration
of
impasse by NUHW.
However, the parties returned to the bargaining table on December 27, one day before
the layoffs occurred and five days after the affected employees were notified
of
their layoff.
NUHW had submitted its first written proposal on December 26. This proposal, labeled a
"package proposal," consisted
of
an amended version
of
Article 11, ("SENIORITY")
of
the
expired SEIU-UHW MOU. The proposal also addressed transfers within a classification,
promotions and transfers outside
of
classification, transfer limits, call off and call back, the
Hospital's responsibility to avoid layoffs, temporary reductions in work, long-term or
permanent layoffs, layoff order, alternatives to reductions in force, severance pay, benefits to
testified without contradiction that she explained to two NUHW bargaining team members,
Marilyn Benson and Esther Fierros-Nunez, the Hospital's rationale for not disclosing names,
including a wish not to cause distress to those employees near the holidays. The bargaining
team members did not object. On December 22, the Hospital provided NUHW with the names
of the employees to be laid off.
6

laid
off
employees, a supplemental unemployment benefit fund, recall, credit for prior
seniority, staffing for clusters
of
nurses, a training and upgrade fund, equality
of
sacrifice, an
employee buy-out program, and recognition
of
NUHW at the mammography center.
In light
ofNUHW's
proposal and Borsos' indication that the union had room to move,
Ranzenberger conceded the parties were not at impasse regarding the number
of
positions to be
laid
off
and the date
of
the layoff. Ultimately, the Hospital rejected NUHW's proposal because
it was a package proposal and the Hospital believed acceptance
of
the proposal would be
acquiescing to NUHW' s demand that effects bargaining be combined with bargaining for a
successor MOU. Even though Borsos again indicated NUHW had room to move and asked the
Hospital for a counterproposal, Ranzenberger declared impasse.
On December 28, the Hospital implemented the first round
of
layoffs.6 The parties
continued effects bargaining until at least April 4, 2011.
Proposed Decision
The ALJ concluded that the Hospital did not fail to bargain in good faith about any
of
the effects
of
the layoff. To the contrary, he concluded that NUHW caused significant delay
by, among other things, insisting that it had a right to negotiate over the decision to lay off and
failing to offer any proposals concerning the effects
of
layoff until two days before the layoff
was to occur.
The ALJ also concluded that under Compton, supra, PERB Decision No. 720, the
Hospital was permitted to implement its managerial decision to lay off, even
if
negotiations
over the effects
of
layoff had not been completed.
6 A later round of layoffs occurred in 2011.
7

NUHW' s Exceptions
NUHW generally takes exception to the ALJ's conclusion that the Hospital did not fail
to bargain over the number, timing and related effects
of
the proposed layoff, or over effects on
remaining employees. NUHW disagrees with
th_e
ALJ's conclusion that the Hospital was
reasonable in concluding that negotiations as to the scope
of
the layoffs were at impasse when
the layoffs were implemented on December 27. According to NUHW, no genuine impasse
was reached, and the Hospital was therefore not privileged to implement the layoffs on
December 27.
NUHW has failed to identify the grounds for these exceptions. Rather, it merely
expresses disagreement with the ALJ's conclusion and repeats arguments it made to the ALJ.
The Board need not address arguments that have already been adequately addressed,
particularly where the excepting party has simply reasserted its claims without identifying a
specific error
of
fact, law or procedure that would justify reversal. (Los Angeles Superior
Court (2010) PERB Decision No. 2112-1; Morgan Hill Unified School District (1995) PERB
Decision No. 1120, p. 3; State
of
California (Department
of
Youth Authority) (1995) PERB
Decision No. 1080-S.) For reasons discussed in the proposed decision, we agree with the ALJ
that the Hospital did not fail to bargain in good faith over the number, timing and related
effects on employees to be laid off. Because we conclude that the Hospital satisfied the
Compton factors, it is unnecessary to determine whether the parties were at a genuine impasse
when the layoff occurred.
We address three additional exceptions raised by NUHW. First, NUHW disagrees with
what it characterizes as the ALJ's "Erroneous Premise That The Union Was Required To
Provide and Did Not Provide Alternatives to Achieve Labor Costs Savings." (NUHW
Exceptions, p. 29.) NUHW also asserts that the ALJ wrongly concluded that the Hospital
8

satisfied the factors enumerated in Compton, supra, PERB Decision No. 720 regarding
implementing layoffs prior to the conclusion
of
effects bargaining. Finally, we address
NUHW's claim that the Hospital refused to negotiate over the effects
of
the layoff on the
remaining employees.
1. 	Alternatives to Achieve Labor Cost Savings
We do not agree, as NUHW alleges, that the ALJ concluded that NUHW was required
to provide alternatives to achieve labor cost savings. Instead, he concluded that the Hospital
could not be liable for failing to bargain over the implementation
of
the layoff where NUHW
had not offered any concrete proposals on any negotiable subjects related to the layoffs. After
reviewing the instances in which NUHW declined to discuss various effects
of
layoff such.as
the order
of
layoff, the number
of
employees to be laid off, or an alternative date for the layoff,
the ALJ, in looking at the totality
of
the circumstances presented by the factual record,
concluded:
In light
ofNUHW's
failure to signal any intent to propose
economic concessions that would constitute an alternative to the
Hospital's labor cost reduction goal, offer any concrete proposal
on the timing
of
the layoff, or propose a different configuration
for the reductions, the record fails to demonstrate that the
Hospital exhibited bad faith by resisting bargaining over the
timing, number, and other effects on those to be laid off.
(Proposed Dec., pp. 35-36.)
The ALJ correctly considered NUHW's failure to provide alternative cost-saving
measures as one
of
multiple factors in support
of
the conclusion that the Hospital did not fail to
bargain in good faith over the effects
of
the December 2010 layoff. We agree with the ALJ's
observation:
When NUHW asserts that the Hospital refused over the first four
bargaining sessions to make a genuine attempt to reach agreement
over the particular employees, job classifications, and total
number of employees subject to layoff, it is really referring to the
9

Hospital's resistance to engage
NUHWin
discussions to rebut
[NUHW's] assertions that the layoffs were unnecessary,
....
This is tantamount to a claim
of
right to negotiate the decision to
lay off.
(Proposed Dec., p. 36.)
NUHW also claims that the ALJ failed to consider NUHW' s repeated efforts during
bargaining to discuss whether the number
of
layoffs could be reduced by various alternatives,
such as saving the benefitted positions first by reducing the per diem positions. The evidence
shows that the Hospital rejected the per diem proposal as a viable alternative, because per diem
positions are used to fill in when regular employees cannot work a particular shift. Reducing
per diem employees would do nothing to ultimately save labor costs. Simply because the
Hospital rejected NUHW' s proposal does not mean that
it
refused to negotiate or bargained in
bad faith. 	(See, e.g., Kings In-Home Supportive Services Public Authority (2009) PERB
Decision No. 2009-M, p. 10: "The Board has held that while a party may not merely go
through the motions
of
negotiations, it may lawfully maintain an adamant position on any
issue.")
NUHW also takes issue with what it characterizes in the proposed decision as a
disapproval ofNUHW's attempts to question the Hospital's need for layoffs. We disagree
with this characterization.
Negotiations over the effects
of
layoff may include the exclusive representative's robust
efforts to persuade the employer that layoffs can be avoided. Those efforts may include
economic concessions, or other ideas for cost-savings, or the presentation of facts that
demonstrate the layoff is not necessary or need not be as deep as management proposes.
However,
if
an exclusive representative expects to successfully establish that an employer
failed to negotiate in good faith over the effects and implementation of layoffs, the exclusive
representative must participate in the give-and-take of negotiable proposals, i.e., the effects and
10

implementation
of
the layoff. The union cannot monopolize negotiations with its insistence on
negotiating over a non-negotiable managerial decision, i.e. the decision to lay off, and hope to
delay or prevent the implementation
of
those layoffs by charging the employer with bad faith
bargaining.
We do not read the proposed decision to suggest that NUHW had an obligation to
propose alternatives that help the employer achieve cost savings. An exclusive representative
faced with impending layoffs
of
unit members may choose not to offer economic concessions
in trade for fewer layoffs. But where a layoff is undertaken to reduce labor costs, a union
cannot claim that the employer refused to bargain over the number
of
employees to be laid
off
when the union offers no concessions
of
sufficient value to the employer to obviate the need
for layoffs.7
IfNUHW
had proposed economic concessions, there is no doubt such proposals
would be within the scope
of
bargaining, and the Hospital would be obliged to respond in good
faith. But that is not what occurred here.
NUHW also asserts that it was in a proverbial "catch-22," because the Hospital refused
to bargain over a successor MOU until negotiations over the effects
of
layoff concluded.
According to NUHW, labor cost savings could be fully explored only in the context
of
MOU
negotiations. In short, NUHW asserts that it was the Hospital's unwillingness to combine
layoff negotiations with successor MOU bargaining that stymied NUHW' s ability to present
labor cost savings proposals.
7 While a union is not obligated to propose economic concessions in order to obviate
the need for the layoff or to mitigate the severity
of
the layoff,
if
it chooses to offer
concessions, our case law holds that such proposed alternatives to layoff are appropriate
matters for negotiations. (San Mateo City School District (1984) PERB Decision No. 383,
p. 18; City
of
Sacramento (2013) PERB Decision No. 2351-M, p. 22.) See also Pan American
Grain Co., Inc. v. N.L.R.B.
(1 st Cir. 2009) 558 F.3d 22, 27: employees must be given the
"opportunity to negotiate concessions that reduce overall costs and thus spare jobs."
11

This argument would have some weight
if
NUHW had sent any signal that it was
willing to make a proposal that would have addressed labor costs savings, other than its per
diem proposal. The record supports the ALJ's finding that NUHW failed to propose, or
otherwise indicate to the Hospital that it was interested in exploring making economic
concessions that could have been traded for jobs.
More significantly, the facts do not support NUHW's assertion that the Hospital's
refusal to combine successor MOU negotiations with the effects bargaining prevented the
Union from making job-saving concessions,
if
it had chosen to do so. Borsos first requested
that effects bargaining be combined with successor MOU negotiations on November 22, 2010,
at which time he said the NUHW bargaining team had not yet been selected. He informed the
Hospital that he expected his bargaining team would be in place by December
1.
Borsos
reiterated his demand to combine negotiations on December 5. Three days later, the Hospital
notified Borsos that it was prepared to begin successor MOU negotiations and offered a list
of
seven possible bargaining dates, all in December. NUHW did not respond to the invitation to
open successor negotiations until sometime after the layoff occurred. It cannot now complain
about the employer creating a "catch-22" situation.
NUHW was not prevented from offering economic concessions because
of
the
Hospital's refusal to combine effects bargaining with successor MOU negotiations. The
Hospital offered to begin MOU negotiations as early as December 10, but NUHW ignored this
opportunity, at least during the remainder
of
December.	
But
more significantly, negotiations
over the effects
of
layoffs continued after they were implemented. Nothing prevented NUHW
from proposing concessions in exchange for saving jobs (or recalling laid off employees)
during any of the parties' several negotiating sessions held between January and April 2011.
12

Because the Hospital briefly asserted that effects bargaining over layoffs needed to be
completed before successor MOU bargaining commenced, we take this opportunity to
distinguish this case from City
of
San Jose (2013) PERB Decision No. 2341-M (San Jose),
where we held that piecemeal or fragmented bargaining tactics are an indicia
of
bad faith
bargaining. In San Jose the Board described piecemeal bargaining as a tactic "whereby one
party insists on negotiating certain subjects in isolation from others, or seeks to impose
arbitrary limits on the range
of
possible compromises it will consider."
(Id.
at p. 29.) The
facts alleged in San Jose and the private sector cases on which San Jose relied. all involved
situations in which the employer refused to discuss certain issues until other matters were
resolved, thereby preventing the opportunity for the "horse trading" that characterizes good
faith bargaining. The Board explained that permitting the employer to remove issues from the
bargaining table, one by one, would impair the ability to reach an overall agreement through
compromise.
In San Jose, supra, PERB Decision No. 2341-M, the employer was alleged to have
initially proposed several reductions in the compensation package, including a 10 percent wage
reduction, and elimination
of
the sick leave payout. Although "retirement reform" had been
informally discussed before formal negotiations began and identified by the City as a major
source
of
concessions in "total employee compensation," the City proposed deferring
discussion
of
retirement issues to mid-term bargaining during the future MOU. During the
course
of
negotiations, the union solicited from the City substantive proposals on retirement,
but the City allegedly refused to discuss or offer a substantive proposal on the subject and
insisted to impasse on a side letter that would defer negotiations over retirement until the
parties had reached complete agreement on all other subjects. The Board held in San Jose that
"a party may not refuse to discuss a mandatory subject by insisting on a 'proposal' that
13

postpones negotiations on certain mandatory subjects until agreement on all others is secured."
(Id. at
p.
27.)
The facts in this case differ from those alleged in San Jose, supra, PERB Decision
No. 2341-M. 	Although the Hospital refused NUHW's request to combine negotiations over
effects
of
layoff with successor MOU negotiations, indicating it did not believe the latter could
be completed before the date selected by the Hospital for the layoff, the Hospital did not
condition successor MOU negotiations on an agreement regarding layoff effects. Negotiations
over both matters continued after the layoffs were implemented. Even though Ranzenberger
said in November 2010, that the Hospital wanted to complete effects bargaining before
embarking on the larger task
of
negotiating a complete MOU, in actual fact, the Hospital did
not hold MOU negotiations hostage to agreement on layoff effects, as evidenced by its offer to
commence negotiations on a successor MOU on several dates in December.
Nor do we find that the Hospital's refusal to combine negotiations over layoff effects
with the MOU negotiations constituted an unreasonable delay in bargaining over the successor
MOU. As noted earlier, the delay was actually only between December 1, when Borsos said
his bargaining team would be assembled, and December 8, when Kem e-mailed him with a list
of
dates and a request to begin successor MOU negotiations.
2. 	Implementing Layoffs Prior to the Conclusion
of
Effects Bargaining
The ALJ concluded that the Hospital was reasonable in concluding that the parties were
at an impasse on December 27 with respect to the ''scope
of
the layoff." (Proposed Dec.,
p. 42.) As noted earlier,NUHW excepts to this conclusion. We need not reach this issue,
however, because it is legally irrelevant. Even
if
the negotiations over the effects
of
layoff
were not at impasse, the hospital would nevertheless have been permitted to implement its
14

managerial decision to lay
off
because it satisfied the three-part test
of
Compton, supra, PERB
Decision No. 720.
Compton, supra, PERB Decision No. 720 articulated a test for determining when an
employer may implement a firm, non-negotiable managerial decision before negotiations over
the effects are completed. The Board in Compton held:
[U]nder some circumstances an employer, prior to agreement or
exhaustion
of
impasse procedures, may implement a
nonnegotiable decision after providing reasonable notice and a
meaningful opportunity to bargain over the effects
of
that
decision. In such cases, we will apply the following
requirements:
1. the implementation date is not an arbitrary one, but is based
upon either an immutable deadline (such as the one set by the
Education Code or other laws not superseded by BERA) or an
important managerial interest, such that a delay in
implementation beyond the date chosen would effectively
undermine the employer's right to make the nonnegotiable
decision;
2. notice
of
the decision and implementation date is given
sufficiently in advance
of
the implementation date to allow for
meaningful negotiations prior to implementation; and
3. the employer negotiates in good faith prior to.implementation
and continues to negotiate in good faith after implementation as
to those subjects not necessarily resolved by virtue
of
the
implementation. [Citation omitted.]
(Id. at pp. 14-15.)
NUHW asserts that none
of
these factors were met in this case, and the ALJ therefore erred in
concluding that the Hospital was free to implement the layoff before negotiations over the
effects were completed. We disagree.
In Compton, supra, PERB Decision No. 720, and subsequent decisions applying the
first prong of the Compton test, the Board has found the test satisfied by such factors as a final
15

budget deadline (Compton, p. 16)8 or the elimination
of
state funding by the Legislature,
despite the absence
of
any immutable deadline or determination that a delay in implementation
would effectively undermine the employer's right to implement the layoff. (State
of
California
(Department
of
Corrections & Rehabilitation, Department
of
Personnel Administration)
(2010) PERB Decision No. 2115-S (Corrections).)
In Corrections, supra, PERB Decision No. 2115-S, p. 9, PERB held:
[The] implementation
of
the nonnegotiable decision to lay off
employees prior to the completion
of
negotiations over the effects
of
the layoff is permissible where the decision to implement was •
not arbitrary, the employer gave sufficient notice
of
the
implementation date to provide for meaningful negotiation, and
the employer continues to negotiate in good faith. (Compton.)
(Emphasis added.)
In light
of
how the Board has applied the first Compton factor, we join the ALJ in
concluding that the Hospital's layoff implementation date was not arbitrary, because it was
pegged to the loss
of
Blue Cross Tier 1 status and a reduction in reimbursement rates on
January 1, 2011, factors external to the Hospital's decision-making authority and beyond its
control. The Hospital exercised its management prerogative to reduce staff in light
of
foreseeably lower patient census numbers and a reduction in revenue. We are also persuaded
by the fact that NUHW never proposed an alternative date for the layoffs based on a different
substantive reason other than that cited by the Hospital.9
8 Compton, supra, PERB Decision No. 720 did not make any finding (under the very
test it had just prescribed) that delay in implementing layoffs would have undermined the
school district's right to lay off employees. However, the Board still deemed that the employer
had satisfied the first factor regarding implementing layoffs prior to the conclusion of effects
bargaining, stating: "The District's willingness to negotiate, and the need to reduce its
expenditures prior to the submission of the final budget by September 6, warranted the chosen
implementation dates." (Id. at p. 16.)
9 As the ALJ noted, NUHW did propose a two-week delay in the implementation date
so that negotiations could be completed. Given NUHW's own delaying tactics in these
16

We note that in Salinas Valley!, supra, PERB Decision No. 2298-M, footnote 9, the
Board stated: "[W]e cannot conclude at the pleading stage
of
this case that a brief delay in'the
effective date
of
the layoff would undermine the right
of
the Hospital to ultimately decide to
lay off employees." (Salinas Valley
I,
pp. 20-21, fn. 9.)
Our decision today, based
as
it is on a full evidentiary record, does not conflict with the
Board's observation in the above-quoted footnote. (Salinas Valley
I,
supra, PERB Decision
No. 2298-M.) That case was decided at the pleading stage
of
the case, where "it is not up to
the Board agent to judge the merits
of
the charging party's dispute, but to leave the weighing
of
the evidence to the ALJ at a full evidentiary hearing." (Saddle back Community College
District (1984) PERB Decision No. 433; Lake Tahoe Unified School District (1993) PERB
Decision No. 994.) The Board stated in Salinas Valley I, that "the impending reduction in
revenue does not necessarily meet the Compton CCD test." (Salinas Valley/, pp. 20-21, fn. 9;
emphasis added.) The implication is that the impending reduction in revenue may meet the
Compton test, but that such a finding was inappropriate at the pleading stage. As the Board
now has the full evidentiary record before us, we find that the Hospital has met the first
Compton factor.
With regard to the second Compton factor related to timing
of
notice, the Hospital
provided NUHW with notice
of
the layoffs nearly two months prior to the date
of
the layoffs
and reasonably soon after NUHW's date
of
certification as the exclusive representative
of
the
Hospital's service and technical employees. In Oakland Unified School District (1985) PERB
Decision No. 540, the Board held that the passage of a resolution setting an implementation
date two months hence would not be a per se violation of the duty to bargain, since it afforded
negotiations, the last-minute proposal to postpone the layoffs did not render the Hospital's
deadline arbitrary.
17

the parties an ample opportunity to bargain prior to implementation. Ranzenberger testified
· without contradiction that the Hospital was willing and able to bargain over effects in
November, but that NUHW delayed bargaining because
of
Borsos' schedule conflicts. The
record indicates that the Hospital had the intention
of
bargaining over effects immediately
upon its notification to NUHW
of
the proposed layoffs. We therefore find that the Hospital
has satisfied the second Compton factor.
With regard to the third factor, good faith bargaining prior to and after implementation,
we find the Hospital bargained in good faith about the effects
of
the layoff, both before and
after the layoff, as fully described in the ALJ's proposed decision.
On these grounds, we find that the ALJ did not err in concluding that the Hospital met
all three Compton factors, and therefore was permitted to implement the December 2010
layoff, regardless
of
whether the parties were at impasse over the effects negotiations at the
time
of
implementation.
3. 	Post-Implementation Negotiations
NUHW excepts to the ALJ's conclusion that the Hospital did not fail to bargain over
the effects
of
the layoff on remaining employees, asserting that he erred by declaring that the
Hospital was justified in delaying negotiations over the effects on the remaining employees
until after negotiations were concluded on the effects on employees to be laid off. The NUHW
also avers that the proposed decision ignores evidence that the Hospital failed to meaningfully
engage in effects bargaining over the workload and safety
of
the remaining employees.
However, the evidence supports the ALJ's findings on this point. The parties continued
to bargain over various effects of the layoff after its implementation. In early January 2011,
the parties exchanged proposals concerning the use of laid off employees as per diem
employees. Minutes from a labor-management meeting held on February 11, 2011, show that
18

NUHW was presented with "three prior staffing schedules" in Environmental Services. On
April 26, 2011, Ann Kem wrote to Borsos and other NUHW officials recounting the meetings
and subjects
of
those meeting that had taken place between January
5,
2011 and April 4, 2011.
(Joint Ex. 11, April 26, 2011, letter from Kem (Kem Letter).) Included in that description was
a representation that on February 2, 2011, NUHW was presented with "proposed schedules and
how proposed duties would be redistributed amongst remaining staff. We advised
of
shift
changes and requested a rebid
of
shifts." The Kem Letter describes a meeting on February 8 to
again discuss proposed changes to staffing schedules, and the effect
of
the layoffs on
remaining staff. Several other meetings were described between February 8 and April 4 where
NUHW failed to respond to the Hospital's proposed schedules and request for a rebid. Finally,
the Kern Letter describes the meeting
of
April 4, 2011, in which she asked the NUHW
stewards
if
they had any proposals responsive to the Hospital's proposed schedule changes and
request for rebid. "Your response was to rehire all the employees that had been laid off and
that keep [sic] all positions as they were prior to the December layoffs."
Borsos replied to this letter on April 29, 2011, but he did not contradict any
of
Kern's
factual assertions about the Hospital's schedule and rebid proposals that had been discussed at
the various meetings
s·he
described between January 5 and April 4, 2011. Instead, he disputed
Kern's declaration
of
impasse, complained about the Hospital's refusal to provide requested
information, and its alleged unilateral change in the call off of
staff in environmental services.
These facts fully support the ALJ's conclusion that NUHW failed to prove that the
Hospital refused to bargain over the effects of the layoff on remaining employees.
19

ORDER
The complaint and underlying unfair practice charge in Case No: SF-CE-797-M are
hereby DISMISSED.
Chair Martinez and Member Banks joined in this Decision.
20

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
NATIONAL UNION OF HEALTHCARE
WORKERS,
Charging Party,
V.
SALINAS VALLEY MEMORIAL
HEALTHCARE SYSTEM,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-797-M
PROPOSED DECISION
(6/30/2014)
Appearances: Siegel, Le Witter & Malkani by Latika Malkani, Attorney, for National Union
of
Healthcare Workers; Ottone, Leach, Olsen and Ray, by Anne F. Olsen, Attorney, for Salinas
Valley Memorial Healthcare System.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
National Union
of
Healthcare Workers (NUHW) filed an unfair practice charge and
amended charge under the Meyers-Milias-Brown Act
(MMBA or
Act/
against the Salinas
Valley Memorial Healthcare System (Hospital) on December 17, 2010, and March 21, 2011,
respectively. On April 7, 2011, the Office
of
the General Counsel
of
the Public Employment
Relations Board (PERB or Board) dismissed the charge. On December 12, 2012, PERB
reversed the dismissal in part in Salinas Valley Memorial Healthcare S'ystem (2012) PERB
Decision No. 2298-M. On February 14, 2013, the Office
of
the General Counsel on remand
issued a complaint alleging that the Hospital refused to negotiate over the timing, number, and
identity
of
employees to be laid off, and the effects
of
the layoffs on remaining employees.
1 The MMBA is codified at Government Code section 3500 et seq. Hereafter, all
statutory references are to the Government Code unless otherwise indicated.

This conduct is alleged to violate sections 3503, 3505, and 3506 of the Act and PERB
Regulation 32603(a), (b), and (c). 2
On March 13, 2013, the Hospital filed its answer to the complaint, denying the material
allegations and raising affirmative defenses.
On April 15, 2013, an informal settlement conference was held, but the matter was not
resolved.
On February 26 and 27, 2014, a formal hearing was conducted in Oakland.
On June 2, 2014, the matter was submitted for decision with the submission ofpost-
hearing briefs.
FINDINGS OF FACT
NUHW is an "employee organization," within the meaning of section 350l(a), and an
"exclusive representative" of a bargaining unit of public employees, within the meaning of
PERB Regulation 32016(b). The Hospital is a "public agency" within the meaning of
section 350l(c).
The Hospital provides a full range of acute care, maternal care, and outpatient services.
NUHW's bargaining unit is composed of service and technical employees, with such
classifications as admitting and registration clerks, surgical sterile processing technicians, clerk
typists, cooks, environmental services aides, nutrition services aides, licensed vocational
nurses, nurse aides, transcriptionists, and unit assistants. The Hospital staff includes full-time
and part-time employees (one-half time or greater), all of which receive health and welfare
benefits, as well as per diem employees who do not receive benefits. Part-time employees are
plentiful because the Hospital is a 24/7 facility and those positions are needed to fill gaps in
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 3100 l et seq.
2

coverage. Per diem employees are called upon to fill shifts for regular employees on both
short and extended leaves.
NUHW was certified as the exclusive representative
of
the unit on or about October 25,
2010, following a successful challenge to the Service Employees International Union, United
Healthcare Workers West (SEID). The memorandum
of
understanding (MOU) between SEID
and the Hospital had expired at the time
of
certification.
A number
of
SEID' s former staff and officers assumed positions with NUHW,
including Vice President/Secretary-Treasurer John Borsos, Field Representative Ernest
Gonzales III, and Chief Steward Esther Fierro-Nunez. These agents were aware that the
Hospital had undertaken a reduction in force during the summer
of
2010, induced through
severance package offers to the non-represented ("non-affiliated") staff. However, they were
informed and believed that the Hospital had no intention
of
reducing staffing in NUHW' s
unit. 3
Hospital Chief Operating Officer Beverly Ranzenberger was in charge
of
managing
day-to-day operations. The staff
of
the Human Resources department reported to her,
including Executive Administrative Director Ann Kern.
In 2010, Ranzenberger was given direction to reduce operational costs as a result
of
decreasing patient census and the loss
of
preferred reimbursement status ("Tier One") with
Blue Cross for Monterey County. The change in status followed unsuccessful contract
negotiations with the insurer and was to take effect on January 1, 2011. A rival hospital in the
area maintained Tier One status. This was expected to exacerbate the declining patient census
problem because patients could be served at the other hospital with lower out-of-pocket costs
3 NUHW only provided disputed hearsay evidence of the Hospital's lack of intention to
conduct layoffs.
3

and many of the physicians in the area had admitting privileges at both facilities. The Hospital
estimated a loss of $1.4 million in monthly revenue as a result of losing Tier One status, based
on total monthly operating revenues of $30 million. Even prior to the announced loss of Tier
One status, the Hospital's annual average daily census had dropped in both the 2009 and 2010
fiscal years, ending June 30. The decrease was 11.9 percent in 2010.4
In a letter dated November 9, 2010, Ranzenberger notified Borsos of the "urgent" need
to meet and confer regarding layoffs. 5 Ranzenberger asked for several dates within the next
two weeks. Around this time NUHW was only just beginning to conduct bargaining surveys
for successor contract negotiations and electing its bargaining team members. NUHW was
"caught off guard" by the notice of planned layoffs. A meeting was scheduled for November
17. Approximately 30 bargaining unit representatives attended that meeting on released time.
November 17 Meeting
The first meeting, held on November 17, w~s informational in nature. Chief Financial
Officer Hospital Vice President/Finance John Fletcher made a presentation on the financial
situation prompting the decision to lay off. Borsos, Gonzales, and Fierro-Nunez were among
the NUHW representatives in attendance.
At the time of this meeting, the Hospital had analyzed the workload and determined
that 57.7 full-time-equivalent (FTE) positions needed to be eliminated from the bargaining
4 Hospital records show the census decline began in 2008, after a 20-year period in
which census had never fallen below 2008 levels. During the 2008-2010 period, census did
not recover and remained flat in 2011 and 2012, though the figure for that period was boosted
by increases in (less lucrative) outpatient visits.
5 All meeting dates and correspondence hereafter are in 2010, unless otherwise
indicated.
4

unit. Workload was decreasing as evidenced by the number of "call offs," where employees
are asked to volunteer not to work a scheduled shift, and if there are no volunteers,
management orders the employees not to report.
NUHW responded that it did not believe the claims of financial distress and asserted
that the Hospital was more profitable than most of its peers. NUHW members were informing
the 1mion that census had not dropped significantly. NUHW believed the Hospital was
required to prove a lack of work before it could reach agreement with the union. From the
outset NUHW asserted its right to bargain both the decision and the effects of the proposed
layoff. According to Gonzales, the Hospital made it difficult to bargain effects because it
provided only incomplete information as to such matters as the employees targeted for layoff.
When the union questioned the projected layoff date, the Hospital stated it was exercising its
managerial prerogative on the matter. From the very first meeting the Hospital asserted it was
only interested in bargaining over the effects of the employees to be laid off and not the effects
on those who would remain.
Borsos echoed Gonzales's view that the Hospital carried the burden to prove a lack of
work. Borsos testified that Fletcher's presentation was "pathetic" and "riddled with [million
dollar] errors," and that the Hospital's case was weak in light of excessive levels of executive
compensation. Borsos further maintained that bargaining over the layoffs needed to be
incorporated into the successor agreement negotiations because that was where the money
issues were.
Exchanges After the November 17 Meeting
Kem responded to Borsos regarding the November 17 meeting in a November 19 letter.
Citing PERB precedent, Kem asserted that the Hospital's detennination to proceed with the
5

layoff was not negotiable, only the effects
of
it were. Kem provided responses to NUHW's
information requests and promised to continue providing information going forward.
Information as to the amount
of
savings achieved by the Hospital's summer and fall buyouts
of
non-affiliated employees was provided.
71
non-affiliated staff accepted the buyout in the
summer,
of
which 34 percent were managerial or supervisory.
Also on November 19, Kern emailed NUHW a list
of
the bargaining unit classifications
from which the 57.7 FTE reductions were needed. The list showed 662 total employees (or
558.1 FTE positions), the current employee headcount by classification, and the number
of
FTEs populating those headcounts (number
of
full-time and part-time positions). 6 In addition,
the Hospital provided its recent financial statements. Kem urged NUHW to meet prior before
the end
of
the month to.address the issues and "dialogue at a minimum about the order
of
the
layoffs, bumping rights, and seniority application."
The projected layoff list did not include the names
of
the employees subject to layoff.
The Hospital did not provide the names initially because it did not want to preempt NUHW's
choice
of
the manner
of
selecting employees for layoff, whether it was by seniority or other
factors, or a possible proposal on conversion
of
some staff to per diem status ( allowing
employees to retain a lesser employment status). Ranzenberger considered it possible that
NUHW would propose a wage reduction in lieu
of
some layoffs, as had other units.
Ranzenberger also believed it was more "humane" not to identify employees by name because
of
the emotional trauma, especially around the holidays. Ranzenberger testified without
contradiction that she explained the Hospital's rationale for not disclosing names in an off-the-
6 Gonzales believed the size of the 1mit was well over 700 employees at the time of
certification.
6

table conversation with NUHW stewards Fierro-Nunez and Marilyn Benson, and neither
objected.
In an early morning November 22 email to Kern, Borsos asserted that the Hospital had
"not made its case to proceed with the layoffs, particularly in the wake
of
the buyout." He also
indicated that NUHW would not waive its right to bargain over the decision to layoff. Borsos
requested additional infonnation with a focus on the Hospital's recent contract with a
consulting company named Wellspring, staffing plans in the nursing units and any changes
recently implemented, efforts by the Hospital to increase revenues, other savings measures,
current staffing patterns
of
departments projected to incur layoffs, and ''how the hospital
proposes the work will be performed
if
the position is eliminated." Borsos demanded that the
layoff bargaining be incorporated into the negotiations for the successor agreement rather than
be bifurcated. Although Gonzales testified that as
of
November 22 NUHW had requested the
names
of
the employees to be laid off, Borsos' s email
of
the same date states the union was
only seeking a breakdown by job position, not the actual names.
Borsos sought the Wellspring information because he believed it was a "slash and
burn" consulting group used by hospitals to lower labor costs by forcing increased worker
productivity. While admitting that workforce reductions would be appropriate when patient
census is down, Borsos suspected that Wellspring had recommended changes to the patient
acuity formulae in nursing units 	which detennine the complement
of
staffing by skill level -
in order to impose leaner staffing ratios as a way to achieve cost savings. Implementation
of
lower ratios would have a cascading effect downward to bargaining unit staff. Given the
union's view that census was not dropping, Borsos believed the Hospital was first required to
establish that it was not simply trying to reduce staff in order to achieve cost savings in the
7

manner Wellspring was known for doing. Borsos asserted that the Hospital failed to provide
sufficient information from which NUHW could determine that that was not case. He also
described getting infonnation from the Hospital regarding the potential to eliminate per diem
hours in order to save a benefitted position as like "pulling teeth."
In an email later in the day on November 22, Kem stated the Hospital's disagreement
with NUHW's view that the layoff decision was a shared one. Kern acknowledged that an
agreement might be reached ifNUHW offered concessions achieving the same economic
savings as the layoff, but requested that any such proposal be made at once. She asserted that
"time is of the essence." Kem rejected a change in the timeline so as to accommodate the
commencement of contract negotiations, citing the delay involved. Kern insisted that the
union be "prepared to fully discuss" such effects as "seniority application to layoff, bumping
rights, reemployment rights, [and] effects of the layoff on health and welfare
benefits/severance/unemployment" at the next meeting.
In a November 23 email, Borsos reiterated to _Kern that the decision to layoff was
negotiable because it was driven by labor costs. Borsos stated: "[W]e are concerned that [the]
hospital seems intent to move forward on these proposed changes without fully establishing the
need to take such drastic cuts while lacking what appears to be a well-thought out plan to both
implement the cuts, and perhaps, more importantly, take into consideration how the patients
will best be cared for by those workers who remain." Borsos took issue with the amount of
money spent on the Wellspring contract, the fact that the Hospital was only looking at
non-staff cuts after achieving a 10 percent cost savings from the buyouts, and the decision to
move forward despite continuing profitability.
8

In a November 29 email, Kem requested that NUHW choose two meeting times from
the dates of December 6, 7 and 9. Kem disputed that the Hospital had only just recently begun
to consider non-labor cost savings. Borsos replied the following day that he would be
available on the 7th or 8th.
In a December 3 email, Ranzenberger complained about NUHW' s threat to cancel two
scheduled meetings unless the Hospital agreed to released time for 20 union members.
Gonzales disputed Ranzenberger's insinuation that the union was using released time as tactic
to delay bargaining. 7
The Hospital provided an agenda in advance of the December 7 meeting listing a
financial presentation and the subject of "effects bargaining" that included the topics of
bumping rights (application of seniority), reemployment rights, transfer opportunities, and the
layoff timeline. In a December 4 email, Borsos objected to the agenda as not being jointly
developed, and reiterated the union's objection to limiting the negotiations to effects
bargaining as opposed to decisional bargaining.
In a December 5 email, Kem provided NUHW with the estimated annual savings from
the June/July buy-outs ($8 million) and October buy-outs ($4.3 million). In a December 6
email, Borsos repeated NUHW's demand to combine decisional bargaining and effects
bargaining with contract bargaining.
7 The number of employees required by NUHW to be released for the sessions
appeared to be an irritant to the Hospital to the extent it created scheduling issues. Throughout
the negotiations, the number of released employees was about 20 employees, in addition to
three or four NUHW staff members. Gonzales testified that because the bargaining team was
just being selected, NUHW began by inviting all the stewards to the meetings.
9

December 7 Meeting
The December 7 session began with the Hospital laying out its economic justification
for the layoffs. Vice President Physician and Business Development Liz Lorenzi made a
presentation concerning the loss of Blue Cross Tier One status. Borsos inquired whether
NUHW could use its relationship with teacher unions to assist in the Hospital's negotiations
with Blue Cross. According to NUHW's bargaining notes, Lorenzi responded that due to an
insinuation by Blue Cross of a breach of contract, an orchestrated effort with the teacher
unions was not advisable. 8
Chief Financial Officer Frank Katsuda was then called upon to explain the Hospital's
cash requirements. Katsuda stated the cash balance had dropped from $60 million the previous
year to $40 million in October 2011. Lorenzi cited the need for a seismic retrofit,
improvements to the central energy plant, implementation of an electronic medical records
system, and construction of a parking structure. Ranzenberger testified that the $20 million
decline in the 1
cash balance was due to a decrease in patient yolume and that a prudent cash
reserve needed to operate the Hospital for 90 days amounted to $90 million. 9 As to these
points, Borsos testified that the Hospital never made a convincing argument as to the timing of
8 NUHW introduced bargaining notes of the bargaining sessions of December 7, 21,
and 27. In labor cases, bargaining notes are regarded as business records and maybe received
into the record as substantive evidence of what occurred at bargaining meetings. ( Continental
Can Co. (1988) 291 NLRB 290,294 [hearsay exceptions]; Pacific Coast Metal Trades Dist.
Council (1986) 282 NLRB 239,239 fn. 2 [same]; Mack Trucks, Inc. (1985) 277 NLRB 711,
725 [same, and weight needs to be judged].) The weight to be given the notes should be based
on their quality, detail, and consistency, as well as other relevant circumstances. The
notetaker, Sh.annon Romo, worked at the Hospital as a transcriptionist. Her notes are generally
verbatim, include start and end times, and appear to be contemporaneously drafted.
9 At the hearing Ranzenberger added that following the loss of Tier One status, the
Hospital suffered a decrease in net revenue of $20.8 million in calendar year 2011.
Ranzenberger also conceded that the Hospital generated over $6 million in profits for the same
four month period in 2010 and 2011.

the layoffs. He questioned the seismic retrofit because the legislation mandating it did not
require compliance until 2030.
NUHW's bargaining notes indicate there was then a discussion about Medicare and
Medi-Cal reimbursements and declining patient census, and a statement from Katsuda that due
to rising unemployment, more patients were uninsured. After the Medicare and Medi-Cal
discussion, Ranzenberger asserted that everyone knew patient volume was down. Borsos
insisted the union was "just trying to understand the numbers," that the Hospital's November
17 presentation was "not impressive," and that the union did not think the Hospital had made
its case for the layoffs. Ranzenberger responded that the parties needed to "get the layoff
question resolved," while stressing the Hospital's need to move forward. When Ranzenberger
persisted, Borsos countered that the Hospital does not "get to dictate" and if the Hospital was
not going to answer questions, the meeting would be over. After an assertion by Kem that the
Hospital had given the union "every document," Borsos stated that the union was "not
bargaining by email." Borsos replied that NUHW had found "million dollar errors" in the
materials provided by the Hospital. Attempting to change the subject, Kem then asked for
input on its proposal, and described the subjects: (I) notice by mail; (2) a six-month rehire list
after layoff; (3) preferential rehire to previous employees, subject to skills, qualification,
disciplinary action, and seniority; and (4) a "benefit waiting period for rehire." The Hospital
also sought input on seniority in the event of rehire and a grievance process for the laid off
employees.
Also according to the bargaining notes, after the proposal presentation and a meeting
break, Borsos expressed interest in who was being targeted for layoff and requested that the
Hospital walk the union through the Wellspring contract regarding the labor productivity and
11

cost assessment components. In that vein, Borsos referenced an opening contract negotiations
proposal. Borsos asserted that Wellspring was retained to recommend changes and requested
the Hospital "put [that] on the table so we can go at one time." Ranzenberger objected to
straying from the subject
of
effects. Borsos responded that NUHW had a right to propose
alternatives to the layoff and suggested the parties take a "block
of
days" to "bargain the whole
thing." By way
of
clarification, Borsos stated the union was "responding in [the] context
of
full contract [bargaining]."
10
Ranzenberger objected to the tie-in with contract negotiations.
Later in the meeting Borsos claimed that the prior reductions in force were needed just to pay
the Wellspring contract. Katsuda stated that Wellspring was paid $4 million and saved $12
million. Borsos also stated that it was clear the Hospital wanted layoffs but not clear where
they "need to be," or
if
the Hospital knew, it was "not communicating."
As the meeting drew to a close, Ranzenberger asserted that contract negotiations could
not be completed in the two weeks left before the proposed layoffs went into effect. Borsos
stated the Hospital was "missing an opportunity" in terms
of
the parties'. relationship.
Ranzenberger conceded that might be the case, but the "train had left the station," and the
Hospital was the conductor. Borsos responded, "Then we're the brakes." Borsos added that
NUHW might accept the Hospital's direction
if
it could show the actual decrease in workload
by department, and that currently the decision appeared to be driven by labor costs.
11
Borsos
10 Borsos admitted on cross-examination that the union did not present an early
economic proposal once the contract negotiations began. He later added that an economic
concession proposal to offset the layoffs would similarly not have been advisable until the
Hospital had demonstrated how much it was really saving from all its efforts.
11
Summarizing the exchanges here, Borsos testified: "We had said to the Hospital, if
you can demonstrate that work is not there, we'll talk about how the reductions occur. And the
Hospital was never willing to engage in a discussion on how to demonstrate that the work was
not there." The Hospital did provide NUHW with a statistical report of patient census
12

also demanded a showing
of
shared sacrifice by management, administration, and other
bargaining units.
Ranzenberger testified that she explained that the December
31
layoff implementation
date was based primarily on the loss
of
Tier One status, coupled with the declining census.
The bargaining notes indicate that Ranzenberger stated that the layoffs were occurring "by
[management] right." Despite Kern's November
19
letter stating openness to negotiate effects
without qualification, Gonzales repeated at the hearing his claim that the Hospital was only
willing to negotiate the effects
of
the employees subject to layoff, not the effects on those
remaining. NUHW's bargaining notes
do
not corroborate Gonzales's testimony, at least as to
this meeting. They give no indication
of
a place in the meeting where the issue logically
would have arisen.
12
Ranzenberger testified that she explained the Hospital would follow past
practice in terms
of
rebidding schedules
of
the employees who remained after the layoff but
received no feedback from NUHW.
Borsos testified that he objected to the Hospital's failure to provide the names
of
the
employees to be laid off, as this information was necessary to determine
if
the expired
contract's seniority provisions were being followed. Because the expired contract was "mostly
silent" on the layoff process, including bumping rights, Borsos believed it was necessary to
negotiate these issues. Two important issues were whether work would be transferred to other
units after the layoff and the potential for increased work on remaining employees when
certain shifts were eliminated. Another issue was how work assignments would be made after
comparing the 2009 and 2010, year to date numbers as
of
October. It showed a patient census
decline
of
360 out of total of 17,000 days (or an average of 36 fewer per month).
12 Gonzales testified that at the December 7 meeting and others that followed, NUHW
sought to bargain the effects on the remaining employees before negotiating the effects on the
employees to be laid off, just the reverse order sought by the Hospital.
13

the layoffs were implemented. Borsos explained that NUHW' s desire to combine contract
negotiations with layoff bargaining stemmed from the anticipated concessions the Hospital
would seek in contract negotiations and the unfairness of imposing two sets of concessions
sequentially.
In a December 8 email, Kem informed NUHW of its availability to begin contract
negotiations on eight days in December after concluding effects bargaining, which she
anticipated would be "soon."
December 8 Meeting
As promised by the Hospital at the December 7 session, NUHW received the Hospital's
proposal in writing one day prior to the session. The proposal consisted of one page of text.
The proposal stated the Hospital's intention to layoff "by the end of the calendar year," invited
NUHW to discuss bumping rights, and recapitulated the rehire list proposal with an invitation
for NUHW to define seniority. There are no bargaining notes from the December 8 meeting
and scant testimony explaining what occurred. Borsos testified that the Hospital's assertion
that "time was of the essence" was <;1, "joke" and that the Hospital's presentation "created more
questions what it answered" because it lacked specificity. He asserted the layoff date was "set
arbitrarily" with no input from the union. There is no evidence that NUHW responded to the
Hospital's written proposal at the December 8 meeting, counter-proposed an alternative date
for the layoffs, offered any economic alternatives to the layoffs, or offered a proposal on the
effects. Gonzales testified that the Hospital's proposal and others by the Hospital took too
narrow a view of the range of negotiable effects.
Exchanges Following the December 8 Meeting
14

On December 10, Ranzenberger informed Borsos by email
of
the Hospital's decision to
implement the layoffs on December 28. Ranzenberger testified that the reason for selecting
that date was so that laid
off
employees could receive a paycheck for that pay period. With
notices planned for December
17
and the next meeting scheduled for December 16,
Ranzenberger sought additional meeting dates to bargain effects before December 16.
Ranzenberger also alerted NUHW to transmission
of
more detail on its proposal (i.e., the
layoffs and "possibilities
of
options
of
recall and reinstatement"), and that the Hospital would
be inviting input no later than December 14 in hopes
of
concluding effects bargaining prior to
issuance
of
the layoff notices. Ranzenberger asserted in her email that despite the Hospital's
proposal at the December 8 meeting, NUHW failed to provide the Hospital with "the
opportunity to discuss any
of
the issues."
Gonzales testified that the December
17
notice date was not one to which NUHW had
agreed, and the union objected to the Hospital proceeding without having provided the names
of
the affected employees. NUHW also interpreted the December 28 as a regressive proposal
given the previous statement that the layoffs would occur by the "end
of
the calendar year."
In a December
13
letter, Borsos informed Ranzenberger that the Hospital was in
violation
of
the Worker Adjustment and Retraining Notification Act (WARN) (Lab. Code, sec.
1400 et seq.) in terms
of
inadequate notice to laid off employees, repeated the union's assertion
of
lack
of
justification for the layoffs, and cited the Wellspring-initiated staffing acuity system
changes. Borsos wrote:
We have asked the hospital to make a concrete proposal on the
layoffs as well as other changes that the hospital may be seeking.
To date the hospital has refused.

We have asked the hospital to quantify how much money the
hospital expects to save through its massive layoff it has
announced. To date the hospital has refused.
We have asked the hospital to spell out in detail its proposal for
how the work will be performed
if
the hospital implements its
proposed layoffs. To date the hospital has refused.
We have asked the hospital to immediately commence
negotiations for a full collective bargaining agreement. To date
the hospital has refused.
In a December
14
email to Kem, Borsos made a number
of
information requests
including, among other items, the "exact savings" to be achieved as a result
of
the layoffs, the
process for implementing staffing schedule changes, the number
of
call-offs, estimated savings
as a result
of
staffing matrices changes, and a "detailed accounting
of
how the work contained
in the position being eliminated will be performed."
In a December 15 letter to Borsos, Ranzenberger asserted that the WARN Act does not
apply to the Hospital. She stated that the Hospital had repeatedly informed NUHW that layoffs
would occur within the December time frame, and that while the Hospital asserted the
non-negotiability
of
the decision to layoff, it had always been "willing to meet to discuss the
effects
of
the layoff and its impact on the employees to be laid off and the impact on working
terms and conditions." She asserted that NUHW had maintained its right to negotiate the
decision to lay off but failed to provide any proposal in tenns
of
the effects
of
the layoff.
Ranzenberger concluded by requesting that NUHW focus first on completing effects
bargaining for the employees being laid off and then move to the impact on the remaining
employees.
In a December 15 letter emailed to Borsos, Ranzenberger provided a more detailed
proposal on the effects of the layoffs, contained in two pages of single-spaced text. This
16

document proposed that layoffs would occur by reverse seniority in the classification identified
for reduction, with the possibility of discussion about laid off employees converting to per
diem status and its effect on current per diem staff. The effective date of the layoff remained
December 28. Discussion of bumping rights was also proposed. The previous proposal on the
rehire list included an exclusion of employees with an active disciplinary action except upon
administrative approval. The new proposal contained provisions on seniority calculation for
rehired employees.
The Hospital also provided a revised layoff list as of December 16 containing the
classifications for reduction by headcount and FTE.. For the first time it also proposed transfer
of certain employees to the per diem list. The total FTE reduction was reduced to 51.55. In an
attempt to show the shortfall in available work hours for clinical staff (nurse aide, licensed
vocational nurse, clinical assistant, etc.), the Hospital also provided a list of call-offs during the
month of November.
Despite receiving the Hospital's December 15 revised proposal and reviewing it prior to
the next meeting, NUHW prepared no written counterproposal for the next meeting. The union
still believed the Hospital had no right to lay off until it proved there was insufficient work.
Borsos also testified that NUHW had made a related proposal to the Hospital in early
December for the contract negotiations. The proposal itself was not introduced, and Borsos
only described it as dealing with "a number of issues." By way of explanation, Borsos testified
that negotiations on timing and alternatives to layoffs was contingent upon a determination of
how much the Hospital was saving in total employee compensation, including from wages,
health insurance, and pension benefits.
17

December 16 and 17 Meetings
The next bargaining session occurred on December 16. The Hospital attempted to
explain the trends in call-offs to demonstrate reduced workload. There is no other evidence of
what transpired at that session.
On December 17, the Hospital presented a revised, five-page, single-spaced written
proposal described as a "Proposal for Memorandum of Understanding." It again proposed
reverse seniority in the job classification as the order for the layoff. The effective date of the
layoff was changed to "no later than" December 30, yet another change in Borsos's view. The
proposal offered the right to move to per diem status without loss of seniority hours, with a cap
on the total number per department. Bumping rights were proposed for "remaining employees
after reduction in force." Vacant positions within a department would be identified and the
most senior eligible to bid would be awarded the position. Temporary schedules would be
established pending the bidding. Similar rights were proposed for classifications that were
hospital-wide. The proposal provided reemployment/recall rights to the former classification
based on "skill, qualification, disciplinary action and seniority," with maintenance of the recall
list for one year for both laid off and per diem employees. Gonzales conceded that the
proposal on bumping rights, though "not clear" as to intent, did address the remaining
employees, but it failed to address the issue of the redistribution of work.
During these two sessions, NUHW offered no proposal or counterproposal on the
number or timing of the layoffs, nor did it propose alternatives to the layoff. No concessions
were proposed or signaled, such as those that might support its demand to incorporate the
layoff issues into the contract negotiations.
18

Ranzenberger testified that the Hospital recognized its obligation to negotiate workload
effects on remaining employees. While she asserted the establishment
of
schedules for the
remaining employees was a managerial prerogative, she conceded that once the schedules were
established matters related to workload would be negotiable. Ranzenberger believed that due
to lower census and a comparatively light workload for existing employees, no major increase
in workload would result from the layoffs.
Exchanges Following the December 16 and
17
Meetings
Following the December 17 meeting, NUHW's attorney Jonathan Siegel sent a
December 20 letter to the Hospital's governing board asserting a violation
of
the WARN Act
and charging the Hospital with refusing to bargain a successor agreement, the decision to
layoff, and the effects
of
the layoffs.
Also on December 20, Kem emailed Borsos a sample layoff notice, an updated roster
of
all unit positions by FTE and percentage
of
per diem staffing, and a list
of
the employees to
be laid off by name, FTE, and current seniority hours. The Hospital applied reverse seniority
in selecting the employees for the layoff. Ranzenberger testified that this was the first time
employees had been identified by name because the names were not known until the Hospital
applied the rule ofreverse seniority. The list indicated that the proposed FTE reductions had
been reduced from 47 .15 to 11.90, which amounted to reducing the number
of
employees
affected from 70 to 20. The Hospital decided to postpone additional layoffs to a later date.
The proposed layoff date was returned to December 28, with notices to issue on December
21.
13
Ranzenberger testified the decision to reduce the layoff list was not a product of
the
1 In an attempt to rebut complaints at the bargaining table by Borsos of a lack shared
sacrifice, the Hospital presented statistics showing that between 2009 and 2012, non-affiliated
19

negotiations, adding, "The only rationale was we wanted some layoffs by the end of the
year ... and we wanted to begin dialogue about the effects. And it became obvious to us, until
we could get a number that we thought was acceptable for the initial layoffs, we were going to
have no dialogue with the Union." Ranzenberger testified that NUHW never made a specific
demand for names of the employees to be laid off prior to this time. Although Borsos testified
that he objected to the Hospital's failure to provide names at the December 7 meeting, the
bargaining notes do not corroborate his claim. Given the subject matter discussed on
December 7 and the context of the negotiations, Borsos's testimony on the point is not
credited.
December 21 Meeting
Gonzales testified that little progress had been made when the parties met on December
21, especially as to the effects on the remaining employees, and that the reduction in the scope
of the layoff was made without NUHW's input. NUHW asserted across the table it believed
the Hospital had reduced the number because of the threatened WARN Act litigation. The
Hospital stated that additional layoffs would occur in the future. Gonzales repeated his claim
that the Hospital was unwilling to negotiate the issue of the impact on workload for remaining
employees. Gonzales conceded that NUHW made no counterproposal on the number to be laid
off, and offered no economic concessions or alternatives that would reduce the number to be
laid off. NUHW floated the idea of a supplemental unemployment insurance plan, though no
written proposal was presented, and as noted below the proposal was not fully formed. As to
the Hospital's proposed December 28 layoff date, Gonzales testified that the parties
"discussed" extending it by another two weeks so bargaining could be completed.
staff suffered a reduction of total FTE from 452 to 240, certified nurses from 477 to 397,
service and technical employees from 599 to 514, and operating engineers from 35 to 24.
20

Fierro-Nunez testified that the union proposed eliminating per diems before part-time
staff as an alternative, tp.ough the union proposed no number because the Hospital was
unwilling to discuss such effects as how the remaining work would be accomplished. She
understood that NUHW was proposing to apply savings from contract negotiations to mitigate
the layoffs.
NUHW' s bargaining notes indicate that after Ranzenberger expressed a desire for
"some frank talk about layoff[s]" based on the Hospital's movement on layoff numbers, Borsos
responded that "maybe the flip side is a different outcome than you were anticipating" and that
(
the instant session could end up being "a crossroads
...
threshold moment." Next, Borsos
cited the WARN Act dispute as a species
of
the effects to be bargained (i.e., timing and
notice). Borsos stated that NUHW wanted to "step back and find a better outcome," one that
included a public debate about quality
of
care because the registered nurses were overloaded.
Switching topics, Ranzenberger began walking the union through the pared-down, 11. 9
FTE layoff list. Borsos responded by insisting on going through each department to "more
fully 1mderstand what you're doing," "how it affects patient care," and "how the work gets
done." Borsos cited confusion about housekeeping, which was suffering the greatest number
of
reductions. Ranzenberger stated that the reductions were driven by lower census and
asserted that the schedules were not going to change dramatically. Following the layoffs, the
Hospital would begin with temporary schedules, filled in with per diems as well as the
"stretching"
of
part-time employees, or possibly premium pay. When Borsos objected to lack
of
clarity on scheduling, Ranzenberger responded that it would continue to analyze staffing,
while anticipating dropping census. Later Borsos suggested that NUHW might be able to
show that there were enough hours in a particular department such that the number of per
21

diems retained could
be
converted to a part-time, benefitted position. Just prior to going to a
caucus, Borsos wanted the Hospital to share its analysis,
if
it had one,
of
patient volume.
NUHW's
notes also reflect that after the caucus, Ranzenberger stated the Hospital was
not prepared to make any changes to the revised list. Borsos responded that the parties
continued to have a disagreement about the scope
of
effects bargaining and provided an
illustration
of
how NUHW could demonstrate alternatives to layoffs by using per di ems.
Ranzenberger requested that the parties go through the Hospital's latest written proposal as it
related to relevant provisions in the MOU and pledged that the Hospital would comply with the
MOU in tenns
of
posting schedules for retained employees. When Borsos questioned whether
the Hospital was refusing to bargain effects, Ranzenberger stated that the Hospital was not
willing to further reduce the number
of
reductions in light
of
its recent "dramatic" movement.
She further asserted there is a management right to determine the number
of
staff for the
volume
of
work needed. When she suggested the possibility
of
offering the unit preferential
rehire rights, Borsos answered that the union would be "happy to listen." After Ranzenberger
provided further explanation
of
the Hospital's proposal, Borsos responded that the union
understood the proposal.
NUHW's bargaining notes also indicate that prior to going to a second caucus, Borsos
told the Hospital it needed to "respond to scheduling." Ranzenberger asked ifNUHW was
refusing to bargain over its proposal. Borsos replied that the Hospital was engaging in "classic
bad faith" by only bargaining in a "limited area." Ranzenberger answered that the Hospital
was willing to continue meeting but the "most pressing issue" was the impending notification
of
employees. Borsos stated that the union was considering the proposal but that it was
incomplete. After another caucus, NUHW responded with comments on specific issues in the
22

proposal. Borsos cited the lack of provisions for voluntary layoff, suggested creation of the
"supplemental unemployment benefit" with "some cost to the employer," raised a question on
accumulated sick leave, cited the possibility of saving positions through per diems, and
maintained the union's position on decisional bargaining. The Hospital caucused.
Ranzenberger returned to state that the Hospital had already made a proposal on severance,
that it would add sick leave hours to employees in the mammography center, and that it was
rejecting the supplemental employment benefit proposal. The meeting concluded with Borsos
offering to present a proposal at the next meeting, which was scheduled for December 27, the
day before the layoffs were to take effect.
At the end of the meeting Ranzenberger stated that the Hospital was "moving forward."
Although not reflected in the minutes and disputed by Gonzales, Ranzenberger testified that
Borsos responded, "We're done," which she interpreted as a statement of impasse, at least as to
the number of employees and the date of the layoff.
Events Following the December 21 Meeting
On December 22, the Hospital issued layoff notices for the affected employees and
shared a copy with NUHW. The notice indicated payment of two weeks severance, and
detailed other matters related to termination, such as COBRA benefits and reference letters.
Kern requested a copy of NUHW' s written proposal prior to the next meeting scheduled for
December 2 7.
On December 22, Hospital President Sam Downing issued a memorandum to all staff
seeking to correct the record following news articles regarding the reduction in force.
Referring to a story about the reduced layoff list, Downing wrote that the article incorrectly
stated there was a "change" in the number oflayoffs because the Hospital was still intent on
23

reducing the workforce by six percent. In that regard, he stated only that accommodations had
been made with the unions regarding the "timing" of the layoffs.
In a December 22 email, Ranzenberger informed Borsos that the parties had reached
impasse on the number of employees and the date of the layoff. She stated the Hospital's
intention to honor its proposal on severance pay and expressed regret that the parties had not
reached agreement on a preferential hiring list, potential for per diem positions, and seniority
issues. Ranzenberger expressed openness to further negotiations on these and other issues and
expected NUHW's written proposal. Borsos responded in kind that day asserting the parties
were not at impasse on any issues, and stated the union's desire to negotiate on the decision to
layoff and other effects. He requested that the Hospital reduce its revised proposal to writing.
One minute later, Kem emailed Borsos a list of the employees noticed for layoff and requested
seeing the union's proposal in advance of the December 27 meeting. Kern also proposed dates
for contract bargaining in January.
On December 23, Ranzenberger emailed Borsos to say: "We will ask, as we have all
along to focus our discussion on reaching agreement, if possible, for these affected individuals
[those to be laid off on December 28] and the impact on the remaining employees." She stated
that she could not describe her statements made at the table as "anything other than an
unequivocal statement of impasse." She stated that in light of the Hospital's multiple
outstanding proposals without any written response or verbal agreement, the Hospital would
not be providing any additional proposals.
In a December 26 email to Ranzenberger,Borsos objected to the Hospital's "incredibly
inflexible, and inhospitable, take-it-or-leave bargaining approach" and its contradictory
messages regarding the number of layoffs. He objected to the Hospital's inflexibility on the
24

date
of
the layoff, calling it "artificially created," and to the Hospital's unwillingness to
counter-propose or entertain an alternative target date. Borsos concluded by requesting that
the Hospital delay the layoffs by two weeks in order to complete the bargaining over effects.
In an afternoon December 27 email prior to the next bargaining session, Ranzenberger
provided Borsos a summary
of
the negotiations from the Hospital's perspective. She cited six
meetings since November 17, each lasting three hours. She claimed NUHW had been
provided ample opportunity to present an alternative plan to the layoff, but had failed to do so.
Ranzenberger contended the Hospital's effects proposal was more generous than the one
negotiated with the registered nurses unit. Ranzenberger expressed dismay that the union had
not provided a copy
of
its promised written proposal in advance
of
the meeting. Gonzales
testified it was not NUHW's practice to do so.
December 27 Meeting
NUHW began the meeting complaining about Downing' s memorandum suggesting that
it indicated regressive bargaining as to the number
of
employees to be laid off. Ranzenberger
answered that the Hospital had "not changed our target." Borsos elicited from Ranzenberger
that the next layoff would likely occur in January 2011 and that it would be determined on the
basis
of
further assessments
of
volume and workload. Ranzenberger attempted to close off that
discussion by stating the purpose
of
the meeting was to discuss the December layoffs.
NUHW presented its first written proposal to the Hospital at the December 27 meeting.
The seven-page, single-spaced proposal addressed a number
of
subjects, including but not
limited to, seniority, application
of
seniority, transfers within a classification, promotions and
transfers outside the classification, severance, health benefits for laid off employees, a
supplemental unemployment benefit fund, and recall rights.
25

NUHW' s bargaining notes indicate the meeting began with Borsos stating the parties
were not at impasse on the number employees to be laid off and that NUHW had room to
move. Ranzenberger countered that the notices had already issued. Borsos then got
Ranzenberger to concede the parties were not at impasse regarding the number of positions and
date of the layoff, with the caveat, "but after this evening we may be at a different point."
Borsos immediately asked for the "assignments/schedules for affected employees."
Ranzenberger asserted the schedules were going to remain temporary, that the parties were not
there to discuss "those details" and asked for NUHW's proposal. 	Borsos asserted that effects
bargaining includes "how the work gets done by those who remain." Ranzenberger did not
disagree, but again asked for the proposal. Borsos stated NUHW's intention to do that, but
objected that NUHW was still trying to "figure out your process." Just after obtaining the
Hospital's openness to a proposal on the number of positions to be laid off, Borsos objected to
the Hospital's failure to provide the data relied on by Wellspring to "right size" the
departments, followed by. a demand for clarification of the Hospital's proposal on employees
moving to a different classification if suitably qualified. Borsos followed that with a demand
to discuss seniority lists. He reviewed NUHW's proposal. Borsos asserted the union's
supplemental unemployment insurance plan costing $100,000 was reasonable, and laid out a
nmnber of proposals on recall rights. Borsos requested a discussion about the ratio of
managers to staff and demanded a compensation reduction of 20 percent from all
administrators prior to the layoffs. The Hospital requested a caucus. It returned 30 minutes
later and announced it was rejecting NUHW's proposal because it was a package proposal and
the parties were at impasse. Borsos disputed that, stating the union had room to move on its
26

proposal and expected a counterproposal from the Hospital. Ranzenberger restated that the
parties were at impasse, and the Hospital concluded the meeting.
Gonzales conceded on cross-examination that as
of
December 27 NUHW still held the
· position that the employer did not have the right to lay off employees without negotiating the
decision and that it did not yet have a concrete proposal on the date oflayoffs. He also
admitted that, other than Borsos's proposal to work with the teacher unions on Blue Cross's
contract, NUHW never proposed any economic concessions that might avoid layoffs, such as a
temporary cut in pay or benefits. Gonzales further testified that after the December 27 meeting
NUHW began making proposals regarding the December 20
IO
layoffs in the contract
negotiations.
Events Subsequent to the Layoffs
On January 3, 2011, Kern informed Borsos in an email that the Hospital was willing to
offer per diem positions for NUHW employees laid off in departments that may require them,
but generally not to exceed 20 percent
of
"total individuals in each per diem status." Borsos
responded on January 3, agreeing to per diem positions for any employees interested but
objected to the 20 percent cap. He did not propose further meetings on the subject.
On January 27, 2011, Borsos wrote to Anne Olsen, counsel for the Hospital demanding
that the Hospital restore the status quo prior to December 28. Borsos asserted that the Hospital
had either flat refused to negotiate or surface bargained over the number
of
employees to be
laid off, their identity, the timing
of
the layoff, the workload and safety
of
the remaining
employees, the manner in which the layoff would being implemented, and the elimination
of
work resulting from transfers to other units. He demanded resumption
of
negotiations over
these matters. Borsos cited International Assn.
of
Fire Fighters, Local 188, AFL-CIO
v.
Public
27

Employment Relations Bd. (2011)
51
Cal.4th 259 (City
of
Richmond). Borsos also demanded
compliance with outstanding information requests, including but not limited to the method by
which the Hospital implemented the layoff and the manner in which work would be distributed
to remaining employees.
Olsen responded in a February 10, 2011 letter asserting that the City
of
Richmond
decision supported the Hospital's position because it was not required to bargain over the
decision to layoff, and, citing language from the case, that the reason for allowing a union to
request effects bargaining is to enable the parties to "negotiate concessions that reduce overall
costs and spare jobs." But in this case, she continued, NUHW had "delayed or obstructed the
discussions and attempted to coerce the Hospital to enter into decision bargaining"; made only
one written proposal that called for the Hospital to "give up management rights on layoffs and
condition the layoff on a reduction in the salaries
of
non-bargaining unit members," that it
"failed to make any labor cost concessions that would have mitigated the need for layoffs;"
that it "failed to clearly identify areas
of
impact and meet and confer in good faith on those
areas"; and, that having "failed to enter into effects bargaining prior to the implementation
of
the layoffs," NUHW waived its right to do so. The Hospital reaffirmed its commitment to
meet concerning the impact
of
the layoff on the remaining employees "as it has done since the
layoffs." Kern added that the Hospital had compiled with all reasonable requests for
information.
On February 15, Borsos replied to Olsen in a letter, disputing her characterization
of
the
events, and repeating NUHW's demand for restoration
of
the status quo ante. He stated
NUHW still believed the Hospital was required to bargain over the decision to lay off, though
the Hospital also had an obligation to negotiate over the effects, as stated in City
of
Richmond.
28

Borsos testified that the parties "continued to bargain over the layoffs until [the parties]
settled the contact in January of 2012." But he asserted that after December 27 "the
Hospital refused to bargain over or even discuss it because then they would say it's part of
litigation" and that "[t]hey wouldn't discuss the impact of the layoffs after that." However, the
record contains an April 26, 2011 email from Kern to Borsos, Gonzales, Fierro-Nunez, and
Benson recounting the history of meetings (January 5, January 25, February 2, February 8,
March 2, March 21, March 28, and April 4, 2011) regarding effects bargaining. Kern noted
that she had provided current job duties, current schedules, proposed schedules, and how
proposed duties would be redistributed. According also to the email, Kern asked NUHW on
April 4 for any proposals on the proposed schedule changes and requests for a rebid.
Ranzenberger was aware of these meetings in 2011 and attended some. She testified that
NUHW presented no proposals regarding the effects on the remaining employees. Gonzales
offered only vague testimony on the point, stating that NUHW made some proposals on the
"December layoffs" in the context of the contract negotiations. Borsos responded to Kern's
April 26 email, claiming a number of issues raised byNUHW's December 27 proposal were
still outstanding, and that the Hospital had not provided requested information, including
reports by Wellspring. Borsos again demanded restoration of the status quo ante.
ISSUES
(1) Did the Hospital fail to meet and confer in good faith over the number, timing, and
related effects on laid off employees?
(2) Did the Hospital absolutely fail to meet and confer over the effects on the
employees who remained?
29

CONCLUSIONS OF LAW
PERB Decision No. 2298-M
A brief discussion
of
PERB
's
decision that led to the issuance
of
the complaint
in
this
case is necessary because it constitutes the law
of
the case. PERB identified the issues on
appeal as whether the Hospital violated the MMBA
by
refusing to negotiate the decision to
layoff, refused to negotiate the effects
of
the layoffs on both the laid
off
employees and those
remaining, and failed to provide relevant and necessary information. (Salinas Valley Memorial
Healthcare System, supra, PERB Decision No. 2298-M, p. 13.)
PERB affirmed the Board agent's dismissal as to bargaining over the decision to lay
off
and the information request. As to the former claim, PERB explained that the Hospital's
decision to lay
off
employees was a non-mandatory subject
of
bargaining under the MMBA,
and it rejected the argument as framed by Borsos based on City
of
Richmond, supra, 51 Cal.4th
259 ( City
of
Richmond). Though focusing on the union's argument based on layoff language
in the expired MOU and the Hospital's obligation to maintain the status quo, PERB
nevertheless concluded that the Hospital was not required to bargain over the decision to lay
off
because that decision was within the Hospital's managerial prerogatives. In so holding
PERB relied on City
of
Richmond as well as Fire Fighters Union
v.
City
of
Vallejo (1974) 12
Cal.3d 608, Newman-Crows Landing Unified School District (1982) PERB Decision No. 223
(Newman-Crows Landing), and Mt. Diablo Unified School District (1983) PERB Decision
No. 373. (Salinas Valley Memorial Healthcare System, supra, PERB Decision No. 2298-M,
pp. 9-10, 13-14.) In affirming the dismissal
of
the information request allegation, PERB relied
on NUHW's concession that the Hospital had responded to all requests as information became
available and the union's failure to object to any responses as being inadequate. (Id. at p. 22.)
30

In addition, PERB provided a rationale for the alleged prima facie violations, adhering
to
NUHW's
theory that the Hospital consistently disputed its obligation to negotiate the
"timing, and number and identity
of
the employees to be laid
off
and the impacts and effects
of
the layoff on the workload and safety
of
remaining employees," all while only revealing its
layoff plan in a "piecemeal" fashion. (Salinas Valley Memorial Healthcare System, supra,
PERB Decision No. 2298-M, pp. 17-18.) In regard to the timing-number-identity issues,
PERB relied on the theory that the Hospital unilaterally implemented before a genuine
bargaining impasse.
(Id.
at pp. 19-20, citing Compton Community College District (1989)
PERB Decision No. 720.) In regard to the workload and safety issues, PERB concluded the
charge alleged an unlawful absolute refusal to bargain. (Salinas Valley Memorial Healthcare
System, supra, PERB Decision No. 2298-M, p. 19, citing Sierra Joint Community College
District (1981) PERB Decision No. 179.)
Analysis
As noted above, the decision to lay
off
is non-negotiable because it is within the
employer's managerial prerogatives. (City
of
Richmond, supra,
51
Cal.4th 259.) However, the
effects
of
the layoff are negotiable. (Newman-Crows Landing, supra, PERB Decision No. 223,
pp. 12-13.)
In
addition to the impact on employees subject to the reduction in force, a layoff
"may concurrently impact upon those employees who remain." (Ibid.) When an employer
provides advance notice to the union
of
its decision, the union must request effects bargaining or
risk waiving its right to negotiate. (Sylvan Union Elementary School District (1992) PERB
Decision No. 919, pp. 9-10.) The union's request to bargain effects need not take a particular
form and need not identify the specific effects sought to be negotiated, so long as it
communicates the intention to negotiate the effects as distinguished from the decision itself.
31

(County
of
Sacramento (2013) PERB Decision No. 2315-M, pp. 6-9; Newman-Crows Landing,
supra, PERB Decision No. 223.) Once the union requests bargaining over the effects
of
a
workforce reduction, the employer is obligated to negotiate over all reasonably foreseeable
effects
of
that change. (Regents
of
the University
of
California (1997) PERB Decision No.
1221-H, pp. 6-7.)
Consistent with PERB's decision, NUHW mounts a two-part argument here. First, the
parties negotiated the effects
of
layoffs on the employees to be laid off but failed to bargain to
agreement or impasse based on the Hospital's
(I)
outright refusal during the initial meetings to
negotiate the number, timing, and various other effects on the employees to be laid off while
citing its managerial prerogatives, (2) failure to provide information, (3) regressive bargaining
as a result
of
first reducing the number to be laid
off
but contradicting itself through President
Downing's statement that the Hospital remained committed to reducing the workforce by six
percent, and ( 4) premature unilateral implementation prior to a genuine impasse. (See
Mt. Diablo Unified School District, supra, PERB Decision No. 373, p. 21, citing Stockton
Unified School District (1980) PERB Decision No. 143 [where the parties engage in some
effects negotiating, the question is whether there is sufficient evidence based on the totality
of
the circumstances to establish that the employer lacked subjective intent to reach agreement].)
Second, by taking a narrow view
of
the effects that could be bargained, as reflected in its
proposals, the Hospital absolutely refused to bargain over the effects on the remaining
employees. (See Sierra Joint Community College District, supra, PERB Decision No. 179
.)
The Hospital contends that after providing NUHW notice and an opportunity to engage
in effects bargaining, NUHW waived its right to negotiate by "failing to provide an effective
and valid notice of any legitimate desire to bargain effects as all communications from the
32

Union were hopelessly embedded and contaminated with its constant demand that the Hospital
was obligated to negotiate the decision to lay off employees." As to the negotiations that did
occur, the Hospital argues that it met in good faith and made proposals on effects of the layoff
, as to all matters identified in the complaint, and as a result was privileged to proceed with
implementation of the layoffs under Compton Community College District (1989) PERB
Decision No. 720, which establishes guidelines regarding unilateral implementation in cases of
effects bargaining.
Number, Timing, and Related Layoff Effects
NUHW fails to identify any unequivocal statements by the Hospital at the bargaining
table supporting its contention that the Hospital maintained the number, timing,
implementation, effects of, and alternatives to layoffs were within its managerial
prerogatives. 14 At the parties' first meeting on November 17, the Hospital informed NUHW
of the proposed number of employees to be laid off, namely 57.7 FTEs. NUHW's claim that
the Hospital refused to negotiate the date of the layoff, in part by asserting it was within its
managerial prerogatives, was conclusory and uncorroborated. An employer may select the
layoff date as an initial matter and present it to the union as its proposal for the timing of the
layoff. (See State of California (Department of Corrections & Rehabilitation, Department of
Personnel Administration) (2010) PERB Decision No. 2115-S, pp. 7-8.) In its agenda for the
December 7 meeting, the Hospital identified the layoff timeline as a topic open for discussion.
14 NUHW' s framing of the effects on laid off employees is broader than stated in the
complaint by adding the "implementation" and "numerous [other] specific effects." Although
no amendment to the complaint was sought, the complaint can be reasonably construed to
include these matters, and the test for an unalleged violation is met. (State of California
(Department of Social Services) (2009) PERB Decision No. 2072-S, pp. 3-4.)
33

Relying on its bargaining notes, NUHW asserts that at the December 7 meeting,
Ranzenberger refused to discuss the timing of the layoffs. The notes do not support this
contention. Instead they indicate in the broader context that Ranzenberger only disputed the
union's contention that the decision to lay off was a negotiable matter. When Ranzenberger
stated the "train had left the station," she was rejecting Borsos's demand that the parties couple
the contract negotiations with the effects bargaining in order to provide NUHW with a broader
arena in which to exchange concessions for a smaller number of layoffs, and dismissing his
admonition that the Hospital was missing an opportunity to begin the new relationship on
better footing. NUHW never came to the table with an alternative date for the layoffs. Borsos
did request that the layoffs be delayed for two weeks, but his only justification was the need
for more time to complete the effects bargaining. When NUHW presented its first written
proposal with still one day left prior to implementation of the layoffs, it still did not propose an
alternative date for the layoffs.
While NUHW repeatedly asserted during the bargaining that the Hospital had failed to
reveal the details of its layoff plan, the evidence does not support this contention. Only two
days after the initial meeting, the Hospital provided NUHW with a list identifying the specific
classifications comprising the proposed 57.7 FTE reduction. The infonnation sufficiently
disclosed the number and identity of those targeted for layoffs on the basis of job
classification. Gonzales emphasized the names were needed in order to permit negotiations of
the workload impact on remaining employees. NUHW' s attempt to explain why a list by
classification was insufficient and frustrated its attempt to bargain over effects is
unconvincing. Later, at the December 21 meeting, Ranzenberger walked the lmion through the
pared-down list of 11.9 FTE by department. Consistent with the Hospital's contention that
34

NUHW was unable to distinguish its demand to bargain the decision, Borsos responded by
insisting on going through each department to determine "how the work gets done" and "how
[the layoffJ affects patient care."
Borsos also contended that the names were needed to determine
if
the Hospital was
complying with its obligation to lay off based on seniority. However, the issue
of
compliance
was premature, because, despite the Hospital's attempt to submit the issue to negotiations,
NUHW declined to discuss the order
of
layoff because it desired to drill deeper into the
numbers justifying the Hospital's decision to lay off. After not receiving a proposal on the
order
of
layoff, the Hospital then ann0tmced it would proceed by reverse seniority and
provided the names. Even after presenting its first written proposal, NUHW never gave the
Hospital a counterproposal identifying a different number for the layoffs or a different
configuration for the proposed reduction. (See
1vft.
Diablo Unified School District, supra,
PERB Decision No. 373, p.
51
[effects
of
a layoff are negotiable to the extent "the decision to
lay off would have a reasonably foreseeable adverse impact on employees' working conditions
and [a] proposal is intended to address employee concerns generated by that anticipated
impact" (italics added)]; San Mateo City School District (1984) PERB Decision No. 383
[alternatives to layoffs such as voluntary demotions or reductions in hours are negotiable].) In
contrast, the Hospital demonstrated movement on both the timing and number
of
layoffs by
sharply lowering the number to be laid off in the initial round from 57.7 FTE to 11.90, and
deferring the remaining reductions to January or beyond. On December 17, it offered laid off
employees the right to move to per diem status without loss
of
seniority.
In light ofNUHW's failure to signal any intent to propose economic concessions that
·would constitute an alternative to the Hospital's labor cost reduction goal, offer any concrete
35

proposal on the timing
of
the layoff, or propose a different configuration for the reductions, the
record fails to demonstrate that the Hospital exhibited bad faith by resisting bargaining over
the timing, number, and other effects on those to be laid off. When NUHW asserts that the
Hospital refused over the first four bargaining sessions to make a genuine attempt to reach
agreement over the particular employees,
job
classifications, and total number
of
employees
subject to layoff, it is really referring to the Hospital's resistance to engage NUHW in
discussions to rebut Borsos's assertions that the layoffs were unnecessary, either because
of
labor concessions already achieved throughout the buy-outs, doubts about actual reduced
workload, excessive executive compensation, or the Hospital's sustained profitability. This is
tantamount to a claim
of
right to negotiate the decision to lay off. As late as the December
21
meeting, Borsos was claiming that the parties needed to "step back and find a better outcome,"
one that included a public debate about quality
of
care. In City
of
Richmond, supra,
51
Cal.4th
259, the court reaffirmed the mle that the decision to reduce labor costs through a layoff as a
result
of
"a decline in revenues or other financial adversity" is a managerial prerogative.	
(Id. at
p. 129; see also Newman-Crows Landing, supra, PERB Decision No. 223, p.
13
[determination
oflack
of
sufficient work is a managerial prerogative].) The Hospital's contention that it was
frustrated in its ability to discharge its duty to meet and confer because NUHW insisted there
needed to be agreement on the necessity for layoffs is well taken.
NUHW asserts that the Hospital refused to complete negotiations on all the outstanding
issues raised by its December 27 written proposal and prematurely declared impasse.
Although NUHW claims the amount of severance was still in issue and the Hospital did issue
two weeks of severance when it implemented the layoff, NUHW's written proposal demanded
the same amount. Despite a difference in the length of recall rights, the Hospital did not notify
36

laid off employees that its proposal, as opposed to NUHW's, had been implemented. Although
the Hospital rejected NUHW's package proposal at the December 27 meeting, there is no
evidence it foreclosed future negotiations on any outstanding issues. As of that date, the
Hospital was still trying to achieve resolution on the number and timing issues.
NUHW' s claim also rests on its belief that the Hospital failed to provide more detailed
substantiation for the layoffs or additional information regarding their implementation
(including how the work would be completed by the remaining employees). PERB affirmed
the dismissal ofNUHW's claims based on a refusal to provide information. (Cf. KLB
Industries, Inc. (2011) 357 NLRB No. 8, enfd. (D.C. Cir. 2012) 700 F.3d 551 [failure to
provide information on a significant bargaining subject precludes a valid impasse and the
implementation of a final offer].) Any alleged failure by the Hospital to provide information
cannot constitute an indicium of bad faith bargaining. (Salinas Valley Memorial Healthcare
System, supra, PERB Decision No. 2298-M, p. 22.) Regardless, Ranzenberger answered
questions about how the work would be scheduled for the remaining employees at the
December 21 meeting. She explained essentially that the situation would be fluid; that it
would involve use of both part-time and per diem employees to gap-fill without any dramatic
change in the schedules. Ranzenberger anticipated rebidding and issues related to that. Given
that the December layoffs ultimately reached only 11.9 of the unit's 558.1 total FTE, the
Hospital's prospective view was reasonable. 15 NUHW's position assumed, without any
credible factual basis, that the workload could not be covered by the remaining employees, and
claimed more positions could be saved without ever presenting a concrete proposal to achieve
15 The 11.9 FTE reduction amounted to only 2 percent of the unit.
37

cost savings. 16 Similarly, although it asserts that job duties would change after the layoff and
claims the Hospital refused to bargain over the matter, NUHW never made a proposal to
address the alleged effect. (See Rio Hondo Community College District (1982) PERB
Decision No. 279, pp. 17-18; Davis Joint Unified School District (1984) PERB Decision No.
393, p. 26, fn. 11 [an employee is required to perform all duties reasonably contemplated
within the scope of his/her job description].)
NUHW's contention that the Hospital acted in bad faith by waiting until days prior to
the layoff to produce the names of the employees targeted is rejected. The union believes the
Hospital offered no time to discuss alternatives to layoff or the effects on the remaining
employees. Again, NUHW alternately challenged the Hospital to produce more information to
justify the layoff, disputed the need for it, and demanded combining effects and contract
negotiations, without once signaling a proposal to achieve alternative labor cost savings. The
Hospital was justified in prioritizing the limited negotiating time available to the effects on the
employees to be laid off and deferring the issues concerning the remaining employees. This
became more apparent to the Hospital's bargaining team over time as NUHW refused to
constructively engage on the Hospital's proposals on a range of effects issues typically related
16 City of Richmond holds that the number of layoffs is a negotiable effect, but the
decision to proceed is at the same time within its managerial prerogatives. To the extent the
MMBA envisions negotiations over this subject because it is a labor cost issue, it can only
mean that the union must be willing to propose alternatives that help the employer achieve cost
savings. ( City of Richmond, supra, 51 Cal.4th at p. 273, citing Pan American Grain Co., Inc.
v. N.L.R.B. (1st Cir. 2009) 558 F.3d 22, 27.) In other words, it calls upon the union to elect
between a greater scope of employment and reduced per capita benefits, or the layoffs as
proposed. Though the absence of a true lack of funds or lack of work would appear to
undermine the managerial prerogative insulating the employer from bargaining the decision,
PERB has never held that a union may prove such a pretext as the premise for demanding
bargaining over the decision itself.
38

to employees to be laid off. (Cf. N.L.R.B. v. United Nuclear Corporation (10th Cir. 1967) 381
F.2d 972, 977, cited in Fire Fighters Union v. City of Vallejo, supra, 12 Cal.3d 608.)
The Hospital did not engage in regressive bargaining by scaling back its layoff list to
11.9 FTE while stating its intention not to waver from the initial reduction in force plan.
Downing's statement only clarified that the change related to the timing of the layoffs. The
Hospital had never renounced its intent to proceed with a six-percent reduction, and its
statement to that effect at the December 21 meeting was simply confirmation of the point. As
it asserted in its opening statement, the Hospital was bargaining against itself with respect to
the issues it thought were critical to the effects bargaining.
In sum, the Hospital offered NUHW an opportunity to make proposals regarding the
timing, number, and related effects on the employees to be laid off as well as the effects on
those remaining, and requested immediate disclosure of cost savings proposals. NUHW did
not respond in a manner indicating it wanted to engage the Hospital on the relevant issues.
Consistent with the Hospital's view, it appears that NUHW's overriding concern was to
preserve its right to argue that the decision to lay off was negotiable. There is no evidence the
Hospital refused to continue negotiations as to any outstanding issues related to effects arising
from the layoff itself after it was implemented. What remains is the related issue of whether
the Hospital prematurely proceeded with the layoff in order to meet its January 1 goal.
In Compton Community College District, supra, PERB Decision No. 720, PERB
explained that an employer may implement a non-negotiable decision after providing reasonable
notice and a meaningful opportunity to bargain over the effects of that decision. (Id. at p. 14,
citing Mt. Diablo Unified School District, supra, PERB Decision No. 373 and Oakland Unified
School District (1985) PERB Decision No. 540.) Compton developed a test for an
39

implementation occurring prior to completion of negotiations or impasse that contains the
following elements: ( 1) the implementation date is not an arbitrary one, but is based upon either
an immutable deadline or an important managerial interest, such that a delay in implementation
beyond the date chosen would effectively undermine the employer's right to make the
non-negotiable decision; (2) notice of the decision and implementation date is given sufficiently
in advance to allow for meaningful negotiations prior to implementation; and (3) the employer
negotiates in good faith prior to implementation and continues to negotiate in good faith after
implementation as to those subjects not necessarily resolved by virtue of the implementation.
(Compton Community College District, supra, PERB Decision No. 720, pp. 14-15.)
The Hospital selected the layoff date based on the timing of the loss of Tier One status
with Blue Cross as well as the already declining census. The size of the impending rate change
was substantial and a discrete event outside the control of the Hospital, such that any delay in
implementation would compromise its managerial prerogative to reduce labor costs in response
to declining revenue. (Oakland Unified School District, supra, PERB Decision No. 540, p. 19
[employer's deadline of beginning of the fiscal year not shown to be arbitrary].) The Hospital
attempted to open negotiations early enough to reasonably allow for completion of effects
bargaining as to the employees identified for layoffs. Its initial notice was on November 9,
close to two months prior to its proposed implementation at the end of the calendar year. (See
Oakland Unified School District, supra, PERB Decision No. 540, pp. 16-17 [two months
provided "ample" opportunity to complete effects bargaining].) The Hospital drove the
attempts to schedule sufficient bargaining dates. As reflected in her December 22 email,
Ranzenberger did not assert the parties were at impasse on all issues for the employees to be
laid off, only the number to be laid off and the date of the layoff. Lastly, for the reasons set
40

forth above, NUHW has failed to prove under the totality
of
circumstances that the Hospital
engaged in bad faith bargaining as to the matters relating to the employees to be laid off. The
elements
of
the Compton test are satisfied.
NUHW contends that the elements
of
the Compton test are not met because the
Hospital, by providing the list
of
names
of
employees subject to layoff only a few days before
the notices were sent out, denied the union a reasonable opportunity to negotiate effects. To
the contrary, the Hospital first provided notice
of
the opportunity for negotiations on
November 9 and followed that with a list
of
the classifications targeted for layoff on November
19. (Oakland Unified School District, supra, PERB Decision No. 540, pp. 16-17.) Again, as
noted above, the lack
of
names was inconsequential. Similarly, NUHW' s contention that the
deadline was arbitrary because the Hospital rejected the union's demand to combine layoff and
contract negotiations is unpersuasive. NUHW cites no authority requiring the employer to
accede to such a demand. In addition, NUHW' s demand that the Hospital justify the reduction
in force in minute detail and its failure to present a timely proposal on effects for the laid off
employees demonstrates delay on its part. (See M & M Contractors ( 1982) 262 NLRB
14
72
[employer unilateral implementation justified "[ w]hen a union, in response to an employer's
diligent and earnest efforts to engage in bargaining, insists on continually avoiding or delaying
bargaining"]; Higgins, The Developing Labor Law (5th ed. 2006) chap. 13, p. 906.) On
December 27, the day NUHW finally presented its first written proposal, Ranzenberger
conceded the Hospital's previous assertion
of
impasse as to employees to be laid off was
retracted. Borsos immediately responded by announcing that NUHW was still trying to figure
out the Hospital's work processes and objecting to the Hospital's lack ofresponsiveness on the
Wellspring contract. And instead of a proposal that included cost savings, NUHW presented a
41

package proposal that, as a result
of
its supplemental unemployment insurance proposal,
included new costs
of
$100,000. The Hospital was reasonable in concluding, at least for that
moment, that the parties were at impasse as to the scope
of
the layoff.
17
Effects on Remaining Employees
Turning lastly to the question whether the Hospital absolutely refused to negotiate over
the effects on the remaining employees, it must be noted that in the bargaining preceding the
layoffs the Hospital declined to address the effects on the remaining employees. But this was
occurring at the same time NUHW was demanding a detailed justification for the layoff.
NUHW's failure to engage the Hospital on its effects bargaining proposals as to.the employees
to be laid
off
prompted the Hospital to prioritize those issues over the workload effects on
remaining employees. Ranzenberger reasonably believed the effects on remaining employees
would be minimal based on the reduced scope
of
the layoff, the prediction that patient census
would further decline beginning on January 1 due to lower reimbursements, and the Hospital's
determination to take a wait-and-see approach using temporary schedules following the
layoffs. Under all these circumstances, the Hospital was justified in delaying negotiations over
the effects on the remaining employees.
That said, the record lacks evidence that the Hospital ever categorically refused to
negotiate the effects on the remaining employees throughout the entire period
of
time the
parties were meeting. Gonzales's insistence that the Hospital absolutely refused to bargain the
effects on remaining employees is contradicted by the Hospital's early correspondence
17
The Hospital's contention that NUHW waived its right to negotiate effects by failing
to make an effective demand is rejected. The problem was not that NUHW failed to demand
effects bargaining - it did so immediately- but that it simultaneously demanded, and persisted
in demanding, decisional bargaining, causing it to delay the effects bargaining. However, its
last-minute proposal did preserve its right to bargain those issues.
42

affirming its duty to bargain over this subject.
It
is undermined by NUHW's failure to offer a
proposal regarding distribution
of
the work remaining. Despite at least nine additional effects
bargaining sessions between January and April 2011, during which NUHW was provided
information regarding scheduling and rebidding, NUHW offered no evidence to substantiate its
claim that the Hospital refused to negotiate effects on remaining employees. Thus, NUHW has
failed to meet its burden
of
proving an absolute refusal to bargain over the effects on the
remaining employees.
For all the foregoing reasons, the Hospital did not fail to meet and confer over the
effects
of
the December 2010 layoff.
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in this
case, the complaint and underlying unfair practice charge in Case No. SF-CE-797-M, National
Union
of
Healthcare Workers
v.
Salinas Valley Memorial Healthcare System, is hereby
DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Board itself within 20 days
of
service
of
this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
43

In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB business
day.
(Cal
Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov.
Code,§
11020, subd.
(a).) A document is also considered "filed" when received
by
facsimile transmission before the
close
of
business together with a Facsimile Transmission Cover Sheet or received by electronic
mail before the close
of
business, which meets the requirements
of
PERB Regulation 32135(d),
provided the filing party also places the original, together with the required number
of
copies and
proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see
also Cal. Code Regs., tit. 8, §§ 32090, 32091 and 32130.) Any statement
of
exceptions and
supporting brief must be served concurrently with its filing upon each party to this proceeding.
Proof
of
service shall accompany each copy served on a party or filed with the Board itself. (See
Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140, and 32135, subd. (c).)
44