San Joaquin County discriminated against health care workers on strike, court says

In 2021, the Public Employment Relations Board made the following findings:

• The county’s policy, which prohibited members from returning to work after a noticed strike, was conduct inherently destructive to the protected activity of the nurses’ association and its registered nurse members;
• The county failed to meet the standard in a new test that the Board announced and applied;
• These actions taken by the county also amounted to conduct inherently destructive to protected activity: its refusal to permit members from using accrued leave for the time they were banned from returning to work, its determination that the absences were unauthorized, and its disciplining of those members.

The Board ordered the county to allow members to use accrued leave for the time they were prohibited from returning to work and for similar absences in the future. The county filed a petition challenging several of the Board’s findings.

In the case of County of San Joaquin v. Public Employment Relations Board, the California Court of Appeal for the Third District reviewed the matter and agreed with all aspects of the Board’s decision. None of the Board’s findings were clearly in error, the court said.

First, the court found that the Board’s newly announced test applicable to contracts with strike replacement companies in public health care settings had no clear errors. Under the new test, the public health care employer should prove the following:

• Despite making a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or that would shorten it to the greatest possible degree, the employer ultimately had to agree to the minimum shift guarantee to maintain critical health care services;
• The employer barred employees from work only because the contractual commitment led to a temporary reduction of available work opportunities, and it filled all remaining opportunities without discriminating based on whether employees worked during the strike or engaged in any actual or perceived protected activity;
• The employer gave the employees’ union timely notice of any decision to guarantee replacement workers a minimum work period or to modify the guarantee’s terms and, if requested, bargained in good faith over the potential effects on the bargaining unit’s employees.

The court also saw no clear errors in the Board’s finding that the county’s delayed return-to-work policy for striking members was inherently destructive conduct and in its finding that the county’s banning of members from using paid leave for the three days after the strike was unlawful.

According to the court, sufficient evidence supported the following conclusions of the Board:

• The county failed to show that it made an effort to enter into a contract containing as short a minimum shift guarantee as possible to maintain critical health care services;
• The county discriminated against strike participants when offering available work;
• The county preferred nonstriking workers to fill available work opportunities after the strike.

The court rejected the county’s argument that the Board’s analysis failed to differentiate between inherently destructive conduct and inherently discriminatory conduct. The court also disagreed with the county’s claim that the Board imposed an overbroad remedy that amounted to punishment.