Cnty. of San Joaquin v. Pub. Emp't Relations Bd.

• Docket Number: C094069
• Decision Date: 07 September 2022
• Citation: 82 Cal.App.5th 1053,299 Cal.Rptr.3d 166
• Parties: COUNTY OF SAN JOAQUIN, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; California Nurses Association, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 1053

299 Cal.Rptr.3d 166

COUNTY OF SAN JOAQUIN, Petitioner,

v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent;California Nurses Association, Real Party in Interest.

C094069

Court of Appeal, Third District, California.

Filed September 7, 2022

Sloan Sakai Yeung & Wong, Jeff Sloan, Justin Otto Sceva, and Madeline Miller, Sacramento, for Petitioner.

J. Felix De La Torre, Wendi L. Ross, Sacramento, Joseph W. Eckhart, and Brendan P. White, for Respondent.

Weinberg, Roger & Rosenfeld, Kerianne R. Steele, Alameda, and Corey T. Kniss for Service Employees International Union, Local 1021, as Amicus Curiae on behalf of Respondent.

Nicole J. Daro, Eric J. Wiesner, and Anthony J. Tucci, for Real Party in Interest.

Leonard Carder, Arthur Liou, Oakland, and Julia Lum, Oakland, for American Federation of State, County and Municipal Employees, Local 3299; University Professional and Technical Employees, Communication Workers of America, Local 9119 on behalf of Respondent and Real Party in Interest.

Robie, Acting P.J.

The County of San Joaquin (County) filed a petition for writ of review relief in this court following a decision of the Public Employment Relations Board (Board), in which the Board found the County interfered with and discriminated against the protected activity of the California Nurses Association (Nurses) and its registered nurse members (members). Specifically, the Board found the County's policy prohibiting members from returning to work after a noticed strike based on the County's contract with a strike replacement company containing a minimum shift guarantee for replacement workers was conduct inherently destructive to protected activity. The Board then announced and applied a new test providing for a defense to the County's conduct of threatening and implementing the policy and determined the County could not meet the standard set forth in the test. The Board also found the County's refusal to permit members from using accrued leave for the time the members were prohibited from returning to work and the County's determination the absences were unauthorized, thereby subjecting members to discipline, was conduct inherently destructive to protected activity. Accordingly, the Board ordered several remedies, including that the County allow members to use accrued leave for the time they were prohibited from returning to work and for similar absences in the future.

We granted the County's petition for writ of review relief and issued a writ of review. The County challenges several of the Board's legal, factual, and remedial findings. After considering all of the briefs filed in this case, we affirm the Board's decision in all respects.

FACTUAL AND PROCEDURAL BACKGROUND

IThe Strike

The County is a public agency within the meaning of the Meyers-Milias-Brown Act ( Gov. Code,¹ § 3500 et seq. ) (Act) and the Board's regulations. As one of its functions, the County operates the San Joaquin General Hospital (Hospital). The Hospital is a general acute care hospital that includes an emergency department, a neonatal intensive care unit, and the County's only trauma center. The Hospital serves more indigent patients than any other hospital in the County and provides inpatient care to incarcerated patients in secure wards. The County also operates outpatient clinics in other locations within the County's boundaries. In the first half of the 2019 to 2020 fiscal year, the Hospital lost substantially more money than expected. Nurses is an employee organization within the meaning of the Act and the exclusive representative of a bargaining unit comprised of more than 700 members working at the Hospital and clinics within the County's boundaries.

The County and Nurses were involved in prolonged labor negotiations to bargain for a successor agreement to the memorandum of understanding between them. Between June and August 2019, the County sought proposals from three companies to provide replacement workers in the event of a strike. In October 2019, the County entered into a contract with Healthsource Global Staffing (Healthsource) to provide replacement workers in the event of a strike by Nurses and/or by Service Employees International Union Local 1021 (Service Employees Union), which represented technical workers and other employees of the Hospital. As part of the strike replacement contract, the County agreed to " ‘a minimum of what amounts to five (5) twelve-hour shifts (60 hours) for each Replacement Staff that commences travel to the Destination City....’ " Further, " ‘[o]rientation provided to the Replacement Staff [was] billed at applicable Compensation Fee rates and [did] not count toward this minimum number of billable hours.’ "²

In January 2020, the County and Nurses reached an impasse in bargaining for a new memorandum of understanding, and post–impasse mediation did not resolve the impasse. Thus, on February 24, 2020, Nurses notified the County of its intention to strike at 7:00 a.m. on March 5, 2020, until 6:59 a.m. on March 7, 2020.

Thereafter, the County filed an unfair practice charge and request for injunctive relief with the Board against Nurses to enjoin essential employees from striking. Following mediation, Nurses and the County entered into a settlement agreement on February 28, 2020, whereby Nurses exempted multiple members from participating in the strike because those members were essential to delivering health care services. In advance of the strike, the County canceled some elective surgeries and outpatient clinic visits, reduced its intake of trauma patients, and otherwise reduced its overall number of patients. The County also learned that many employees represented by the Service Employees Union would strike in sympathy with Nurses.

On March 3, 2020, the chief executive officer of the Hospital, David Culberson (Culberson), asked the San Joaquin County Board of Supervisors to retroactively approve the contract with Healthsource and the allocation of $4 million for replacement workers. The San Joaquin County Board of Supervisors approved Culberson's request.

On March 4, 2020, Culberson, sent a memorandum to "all [Nurses] Unit Members" regarding the date striking members could return to work (Culberson memo). The Culberson memo informed striking members that to ensure the County's ability to deliver "necessary health services without interruption, including emergency services, the County has contracted with an outside company for replacement workers during the strike period. The company with which the County has contracted, however, will only agree to provide such replacement workers for a full five day period, and the County has therefore been forced to agree to pay a minimum of five full days for such workers[.] [¶] Given this unavoidable commitment, please know that [Nurses] unit members who participate in the strike will not be able to return to work at the end of the strike period as noticed by [Nurses]. Instead, such participating employees will not be accepted back at work until their first shift on or after Tuesday, March 10 at 7 a.m., unless called into work at an earlier time by [the Hospital] management. "

The Culberson memo also informed striking members they might be notified not to return to work because of low patient census, at which time members would be furloughed pursuant to the memorandum of understanding between the County and Nurses.

The memorandum of understanding between the County and Nurses sets forth furlough procedures in the event of "[f]luctuations in patient census" to accommodate "lower staffing needs." In such an event, "the Hospital Director or designee may furlough any regular or contract employee ... for up to thirty six (36) hours during any fiscal year," subject to certain conditions. Enumerated as part of those conditions is that the Hospital "will make every attempt to seek volunteers before imposing mandatory furloughs" and employees will be called off in a particular order related to their employment status. Further, "[i]f an employee is notified that he or she is being furloughed and is then asked to report to work for the same shift, the employee will be guaranteed a full shift whether or not the employee works a full shift. Such an employee may not be ordered to return to work, and not required to be available if called." Finally, "[members] who are furloughed may use up to 24 hours of vacation, compensatory time off or holiday hours to equal a full shift's pay."

On March 5, 2020, the strike began. During the strike, and for three days after the strike, the County maintained a lower patient census, such that the number of patients was reduced from 150 patients to 120 patients. During the strike, the County continued to operate the Hospital by using Healthsource replacement workers, traveling or registered nurses already contracted to work for the County before the strike, supervisors and managers, and two categories of members -- those who were exempted from the strike pursuant to the settlement agreement and those who chose to work during the strike. The County did not have sufficient notice to hire replacements for employees represented by the Service Employees Union who chose to participate in a sympathy strike; however, the County was able to cover the sympathy strikers’ shifts by using Healthsource replacement workers, supervisory personnel, and nonstriking employees represented by the Service Employees Union and Nurses.

On March 7, 2020, the strike ended, and members attempted to return to work.³ Between March 7 and March 9, 2020, the County continued to employ Healthsource replacement workers and barred most members who participated in the strike from returning to work. The County did not bar any employees represented by the Service Employees Union from returning to work. During this time, Nurses and multiple members believed the County had furloughed members under the memorandum of understanding, leading some members to claim vacation, compensatory...