A Hospital Unfairly Discouraged Employees From Striking By Barring Them From Returning To Work And Denoting Their Absences As Unauthorized

CATEGORY: Client Update for Public Agencies
CLIENT TYPE: Public Employers
DATE: Oct 06, 2022

In 2019, the San Joaquin County Hospital and the California Nurses Association (Nurses) were having protracted negotiations for a successor memorandum of understanding. The Hospital contracted replacement nurses in the event of a strike. As part of that contract, the Hospital agreed to guarantee the replacement nurses five days of shifts.

In January 2020, the Hospital and the Nurses reached an impasse. The Nurses notified the Hospital that they would strike for two days.

One day before the strike, the Hospital CEO sent a memorandum to the Nurses stating that, because the Hospital was forced to guarantee five days of shifts for the replacement workers, and the Nurses were only striking for two days, and Nurses who participated in the strike would not be able to work for an additional three days after the conclusion of the strike.

At the conclusion of the two-day strike, the Hospital barred the Nurses from returning for three additional days. The Hospital denied the Nurses the use of accrued leave for the three days and instead marked the leave as unauthorized.

The Nurses filed an unfair practice charge with the Public Employment Relations Board.  The striking Nurses alleged that the Hospital had taken adverse action against them to discriminate and interfere with their protected conduct.

The Board concluded that threatening to disallow strikers from work for multiple days after the strike, and then doing so, was inherently destructive to protected striking activity.

The Hospital offered an affirmative defense.  The defense stated that the Hospital had no choice but to 1)  hire the replacement nurses, and 2) acquiesce to the contract requirement that the replacement nurses be guaranteed five days of work.  The Hospital alleged that this was the only reason the Nurses were denied work after the strike.

The Board also found that the Hospital was not entitled to use that affirmative defense. The Board articulated the test for using this affirmative defense as follows: The public health care employer must prove that: “(1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately needed to agree to the minimum shift guarantee in order to maintain critical health care services; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities, and it filled all remaining opportunities without discriminating against employees based on whether they worked during the strike or engaged in any other actual or perceived protected activity; and (3) it provided the employees’ union with timely notice regarding any decision to guarantee replacement workers a minimum work period or to modify the terms of such a guarantee, and, if requested, bargained in good faith over the potential effects on bargaining unit employees.”

The Board ordered that the Nurses be allowed to use paid leave for the period after the strike and in the future if they were kept out of work by a minimum shift guarantee in a strike replacement contract.  The Hospital appealed, but the Court of Appeal affirmed the Board’s decision.

The Hospital first argued that it was clearly erroneous for the Board to decide that the Hospital’s threat to disallow striking Nurses from working after a strike was inherently destructive to their protected striking activity. The Court of Appeal disagreed because threatening to withhold work from a striking employee discourages that employee from participating in future strikes.

The Hospital argued that the test the Board used to deny its affirmative defense was both erroneously constructed and improperly applied. The Court of Appeal disagreed and found that the new test that the Board applied was not clearly erroneous. The Court pointed to various factual findings that indicated that the Hospital failed to negotiate the length of the minimum shift guarantee, and failed to adequately collect bids from strike replacement companies. Thus, the Hospital failed to prong one of the affirmative defenses. The Hospital failed prong two of the defense because it kept non-striking Nurses in the remaining opportunities to the exclusion of striking Nurses. The Court of Appeal did not agree with the Hospital’s arguments related to the third prong regarding timely notice.  Given that the Board’s new test for the affirmative defense was not erroneous, the Court did not consider the Hospital’s argument that it would have prevailed under a different test.

The Court of Appeal also held that the Board was correct in finding that prohibiting Nurses from using paid leave for the three days after the strike was inherently destructive to protected striking activity.   The Court pointed to the evidence that the Hospital’s action to withhold work for over twice as long as the actual strike, would discourage employees from participating in future strikes, especially if they are then unpaid for those days.

Finally, the Court of Appeal held that the Board’s remedial action was proper.  The Board has broad remedial power, including the powers to remedy employer violations and issue orders directing an offending party to stop unfair practices.  Moreover, a remedial order must generally stand unless it is a “patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the [Meyers Millias Brown] Act.”  Here, the order was tailored to stop the Hospital’s specific violations of the Act, and nothing more, so the remedial action was proper.

Cnty. of San Joaquin v. Pub. Emp. Rels. Bd.,  82 Cal.App.5th 1053 (2022).


This case illustrates PERB’s expansive power to adjudicate unfair practice charges and order remedial action. Agencies must be very careful to ensure that the consequences of their strike preparations do not amount to an unfair practice.


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