1

Filed 9/ 7/22 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

---- COUNTY OF SAN JOAQUIN ,

Petitioner,

v. PUBLIC EMPLOYMENT RELATIONS BOARD,

Respondent;

CALIFORNIA NURSES ASSOCIATION,

Real Party in Interest. C0 94069
( Case No. SACE1141M )

ORIGINAL PROCEEDING: petition for writ of review. Sloan Sakai Yeung & Wong, Jeff Sloan , Justin Otto Sceva, and Madeline Miller for Petitioner.
J. Felix De La Torre, Wendi L. Ross, Joseph W. Eckhart , and Brendan P. White , for Respondent. Weinberg, Roger & Rosenfeld, Kerianne R. Steele and Corey T. Kniss for Service Employees International Union, Local 1021 , as A mic us C uriae on behalf of Respondent. Nicole J. Daro, Eric J. Wiesner, and Anthony J. Tucci, for Real Party in Interest.

Leonard Carder , Arthur Liou and Julia Lum 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.2

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 f ound the County interfered with and discriminated against the protected a ctivity of
the California Nu rses Association (Nurses) and its registered nurse members ( m embers)

. Specifically, the Board found the County ’s polic y prohibiting members from returning to work after a noticed strike based on the County’s contract with a strike replacement company contain ing a minimum shift guarantee for replacement workers was conduct inherently destructive to protected activity

. T he 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 coul d 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 memb ers to discipline, was conduct inherently destructive to protected activity. Accordingly, the Board ordered several remedies, including that the C o unty allow members to use accrued leave for the time they were prohibited from returning to work and for sim ilar abse n ces 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, w e affirm the Board’s decision in all respects

.

FACTUAL AND PROCEDURAL BACKGROUND
I
The 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

1 Undesignated section references are to the Government Code.3

acute care hospital that includes an emergency department, a neonatal intensive care unit, and the County’s only trauma center. The Hospital serv es 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 Ho spital 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 t o 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 postimpasse mediation did not resolve the impasse. Thus, o n February 2 4 , 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.

2 Further details perta in ing to the County’s negotiations of this contract will be recounted post

.4

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 participati ng 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 Employee s Union would strike in sympathy with Nurses. On March 3, 2020, the c hief e xecutive o fficer of the Hospital, David Culberson (Culberson), asked th e 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, Culb erson, sent a memo randum to “ all [Nurses] Unit Members ” regarding the date striki ng 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 witho ut 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 worke rs 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 k now 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 calle d into work at an ea rlier time by [the Hospital] management. ”5

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 Direct or or designee may furlough any regular or contract employee . . . for up to thirty six (36) hours du ring any fiscal year,” subject to certain conditions. Enumerated as part of those conditions is that the Hospital

“ will make every attempt to seek volunte ers 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 2 4 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, t he 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 us ing 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 Employee s Union who chose to participate in a sympathy strike; however, the County was able to cover the sympathy strikers ’ shifts by using Healthsource replacement6

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 co ntinued to employ Healthsource replacement workers and barred mos t 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 , Nu rses and multiple members believed the County had furloughed members under the memorandum of understanding, leading some members to claim vacation, compensatory time off, or holiday hours for the time they were barred from returning to work. Ultimately, t he County determined members had not been furloughed under the memorandum of understanding and instead the County marked on members’ time card s that the leave was unauthorized . During the three days after the strike,
when most members were barred from ret urning to work, the County attempted to call back
to work some barred members due to understaffing. Many of the members who were called
back refused to return to work , invoking the provision of the memorandum of understanding that permitted furloughed mem bers to refuse callback requests. On April 9, 2020, Nurses filed a statement of amended charge with the Board against the County

. On May 18, 2020, the Board issued a complaint against the County. The complaint alleged that on March 5 and 6, 2020, members exercised rights guaranteed by the Act by participating in a two

- day strike. The complaint further alleged the County took
advers e action against Nurses and its striking members which constitute d discrimination against and interference with protected conduct, as well as a unilateral change in policies contained in the memorandum of understanding related to the furlough procedures. In its

3 Further details pertaining to members’ efforts to return to work will be recounted post

.7

answer, the County denied its conduct amounted to adverse actions and raised several affirmative defenses to the allegations.
II The Administrative Hearing

A Contract Negotiations
Chief n ursing o fficer Belva Snyder testified at the administrative hearing on behalf of the County regarding the process she and her team undertook when selecting a strike replacement company. Snyder testified she had limited experience with strikes ; specifically,
she had been a hospital administrator during a threatene d strike that had never materialized. As it pertained to the successive memorandum of understanding between the County and
Nurses , Snyder was part of the County’s negotiating team and was present during negotiation sessions. By June 2019, t he County and Nurse s had been negotiating for quite some time and each party had brought very different propos al s to the table withou t any resolution

. Thus, in June 2019, Snyder started preparing for an anticipated strike by researching strike replacement companies. She had her team contact three companies

-- Maxim, Autumn, and Healthsource . I n Snyder’s experience , the County preferred multiple
proposa ls (typically, at least three) before contracting with any given company. Snyder did

not contact any other strike replacement compan y and was unaware of any other companies
in the field. As it pertained to Snyder’s search for a strike replacement compan y, Snyder wa nted to find a company that would be able to provide the diversity and number of employees necessary to replace both the Service Employees Union and Nurses in the event the unions
held a strike at the same time. She al so wanted a vendor that w as fiscally reasonable considering the “organization’s financial situation

. ” Further, Snyder wanted the replacement workers to have the skill set s needed to replace the various members in the different departments of the Hospital . It was Snyder’s understanding she would orient8

replacement workers to the Hospital’s facility and procedures , but not to train them regarding patient care

. The County had a current and long

- s tanding contract with Maxim, a company that provided traveling nurses and was not a strike replacement company

. Travel ing nurses are typically used to fill vacancies while recruiting for permanent replacements or if there is a surge in patient census. Sn yder removed Maxim from consideration early in the process
because it could not provide replacements for employees represented by the Service Employee s Union and because the Hospital was already having trouble with Maxim providing sufficient staffing for t raveling nurse positions

. Maxim did, however, submit a proposal to the County and required a minimum shift guarantee for its replacement workers of 48 hours, or four shifts of 12 hours , for each replacement nurse in the event of a two

- day
strike

. Snyder and her team also contacted Autumn . Autumn offered a minimum shift guarantee of 48 hours for a two

- day strike as well

. Autumn submitted a proposal indicating that for each nurse ordered through their service, t he County would be assessed a $1,200 charge. Then, the County would be charged anywhere from $145 to $180 per hour for each replacement nurse. Snyder decided not to enter a contract for Autumn’s services because it was too expensive and because she had ne ver worked with Autumn , making her uncertain about the level of service it could provide

. Finally, Snyder and her team contacted H ealthsource , with whom the County had a prior relationship during a threatened 2016 Nurses’ strike. While the 2016 strike n ever materialized , the County looked favorably on its interactions with Healthsource. Snyder was not yet an employee of the County at the time of the threatened 2016 strike, but she
relied on the assertions of other Hospital staff that Healthsource had a good reputation. In Snyder’s conversations with Healthsource representatives, the representatives were confident they could provide the needed replacement workers for members of Nurses and for employees represented by the Service Employee s Union. Healthsource charged $4009

per replacement worker ordered , which it was able to do because the County signed a
contract with it early in the strike preparation process. Healthsource required each replacement nurse to work a minimum of 60 hours, or five 12

- hour shifts , for a two

- day
strike and receive one day of orientation not included as part of the minimum shift guarantee. Healthsource charged between $118 and $125 per hour for each replacement

nurse. Snyder decided to enter a contract with Healthsource because it was overall less expensive than Autumn , Healthsource could confidently provide the broad range of replacement workers requested, and the County had a prior favorable experience with
Healthsource. After deciding to enter a contract with Healthsource, Snyder negotiated the substance
of the contra ct and became aware of several things

. First, Healthsource’s minimum shift guarantee of 60 hours was a standard term in its contract s for two

- day strikes. She was told this when she verbally inquired whether Healthsource could lower the 60

- hour minimum. She did not ask about the minimum in writing or try to negotiate the term beyond being told
it was a standard contract term. Snyder was not aware that Heal thsource had agreed to a lower minimum shift guarantee in a contract with another hospital

. Second, Healthsource did not want its replacement workers to come into contact with members of the union they would be replacing

. To that end, Healthsource requir ed the County to orchestrate the arrival of the replacement workers . For example , when the replacement workers began work at the start of the strike, they entered the Hospital through the rear entrance and members were required to exit the H ospital throug h the front entrance

. Healthsource made an exception to this rule to allow replacement workers to work alongside essential employees , i.e., members who were enjoined from striking pursuant to the settlement agreement

. Third, Healthsource required the Cou nty to agree to an exclusivity provision, meaning only Healthsource would provide the strike replacement workers. Healthsource made an exception to this provision for traveling nurses supplied by Maxim.10

The contract between the County and Healthsource w as entered into at the end of
October , at a time when Snyder did not know how long a potential strike would last

. Before doing so, Snyder negotiated to lower the interest rate f or late or delayed payments. During her administrative hearing testimony, Snyder could not recall whether she t old Healthsource representative s she had inquired with other companies regarding strike replacement
services.
Tabi Elba hou was v ice p resident and g eneral m an ager of Healthsource at the time it
entered into the contract with the County. He did not recall the County attempting to negotiate over any term of the contract other than to lower the interest rate related to late or delayed payments , although most of the negotiations invol ved his employee and not him.
Elbahou testified the County agreed to the standard contract language Healthsource offered,
which included a term for a 60

- hour minimum shift guarantee

. Healthsource ty p ically includes the p rovision so it can provide an aggr essive and appealing compensation package for replacement workers and attract the right clinicians. To the best of Elbahou’s knowledge, Healthsource ha d entered into contracts with other hospitals with lower
minimum shift guarantees. He believed the lower minimums occurred when the strikes in question were predicted to last fewer than three days; however, when shown a contract with contrary language, Elb ahou could not speak to the circumstances of that contract because it was before he was employed with Healthsource

. Elbahou testified that client s ha d tried to negotiate lower minimum shift guarantees , but no testimony was given pertaining to the

outcome of those negotiations

. B
Post s trike Return To Work Following the two

- day strike, members attempted to return to work for the morning
shift s on March 7, 2020

. Culberson , along with the Hospital’s security team, blocked members from entering the Hospital. Culberson testified at the administrative hearing that
he told members shifts were adequately staffed, and they were not needed , except for a few11

members who were permitted to return to work

. Employees represented by the Service Employee s Union , on the other hand, were all permitted to return to work because Healthsource replacement workers were not filling their positions

. This wa s because the Service Employee s Union did not provide notice of its sympathy strike, thus Healthsource could not pr epare or deploy replacement workers for th ose strik ing employees

. Members asked Culberson whether he was furloughing them under the memorandum of understanding. Culberson referred members to the Culberson memo. It was Nurses’ and members’ understanding that members were being furloughed under the memorandum of understanding

. Culberson testified he was not clear about the reason members were being
ordered not to return to work and may have misspoke when speaking about the reasons members were prohibited from returning to work

. Culberson testified he never told members they were not being furloughed under the memorandum of understanding. Snyder testified i t was her understanding the Culberson m emo told striking members they could not return to work because of the replacement workers and would possibly be prevented from returning to work following the five

- day period replacement workers were at the Hospital because of low patient census. Th e decision to prevent members from returning to work for the full five days replacement workers w ere contracted to work was a financial decision because the County could not afford to have double staffing at the Hospital

. Snyder testified members were told they may be needed in the three

- day period
after t he strike while replacement staff was present because patient census c ould increase or
the Hospital c ould need members’ expertise . In that event , Snyder testified, the Culberson
memo informed members they would be call ed in to work

. In the three days fo llowing the strike, Snyder determined she needed more nursing
staff in addition to the Healthsource replacement workers , essential employees, and traveling nurses, which Healthsource allowed to continue working during its contract term with the County

. Indeed, the County had contracts with multiple traveling nurse companies
at the time of the strike and three

- day overlap period. One reason st aff was needed was12

because essential employees enjoined from striking were n ot enjoined after the noticed strike and could no longer be forced to work. Based on th e determination that additional nursing staff was needed , Snyder called multiple me mbers to return to work. Many of th o se members refused to return to work believing they could refuse under the furlough provision
of the memorandum of understanding

. Snyder testified that, w hen calling staff to return to
work , she called nurses who possessed the s kills to replace the essential employees who

were no longer c ompelled to work pursuant to the settlement agreement between Nurses and the County . Thus, in the event she called a traveling nurse instead of a member, it was because the traveling nurse poss essed the skills necessary to replace an essential worker. When filling out time cards, members attempted to use accrued leave for the three days following the strike. The County denied members’ attempts to use accrued leave and
instead marked the leave as unauthorized. This was true regardless of whether the member
refused to return to work and applied to all members who had a shift scheduled for the days following the strike when members were barred from returning to work

. The County decided not to honor members’ accrued leave requests because it would result in the County paying two sets of staff. Members who were scheduled to be on standby were paid as standby empl oyees for the three days following the strike.
Unauthorized leave means a member was not present for work when scheduled to
work and the time card notation can be used as a basis for discipline

. Because the leave was
unauthorized , some members did not accrue enough working time within the pay period to
entitle them to vacation or retirement benefits and their longevity pay raises were delayed

. III The Board’s Decision The Board issued its decision on April 12, 2021. The Board dismissed the unilateral change claim alleged in the complaint, but concluded the County violated the Act and Board regulations by discriminating against and interfering with Nurses’ and members’ protected striking activity

. To come to this conclusion , the Board applied the “well

- established13

in ter ference and discrimination standards ” to several adverse actions taken by the County

. These adverse actions were the County’s conduct of “threatening to disallow strikers from work for multiple days after the strike, implementing that action, refusing to allow nurses to use paid time off for the period following the strike in which they were barred from work, and designating employees’ strike time and tim e following the strike as [ unauthorized
leave ].” 4 The Board concluded the first two adverse actions pertaining to the County’s policy
to disallow striking members from returning to work for multiple days after the strike
amounted to conduct that was i nherently destructive to protected striking activity. The
Board then recognized it had adopted the affirmative defense framework governing private sector employers announced in NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26 [ 18 L.Ed.2d 1027] ( Great Dane ) to both interference and discrimination cases involving public employers

. T he Board explained that it was apply ing this framework to the unique set of
facts pertaining to the County’s inherently destructive conduct

. When applying this
standar d, the Board reviewed “[f]ederal decision s [ that ] have repeatedly considered strike replacement contracts with minimum [shift] guarantee provisions and, in a parallel line of cases, partial lockouts featuring alleged discrimination against protected activi ty. [It determined, t] hese decisions lay out neither a consistent analytic framework nor an approach [the Board] f[ou]nd fully persuasive in interpreting the [Act].”
Thus , the Board formed a three

- part test under which a public health care employer
that prohibits bargaining unit employees from work after a strike due to a minimum shift guarantee for strike replacement workers could typically establish an affirmative defense. The test requires a public health care employer to “prove that: (1) it made a good faith

4 The County later decided not to enforce the unauthorized leave designation as a basis for discipline . The Board did not consider this a retraction of the adverse action because the County’s decision occurred five months after the initial conduct , making t he decision untimely, and thus failing to meet the legal standard of a retraction.14

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 mai ntain 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.” Applying this test, the Board found the County could not avail itself of the
affirmative defense because it did not establish that it made a good faith effort to eliminate the minimum shift guarantee or shorte n it to the greatest degree possible , it granted preference to members who did not strike when determining who worked after the strike,
and it failed to provide Nurses with adequate notice of Healthsource’s contracted minimum shift guarantee

. The Board then analyzed whether the County interfered or discriminated against protected rights when it refused to allow members to use paid leave for the period after the
strike or when designating the time during which they were barred from returning to work
as unauthorized leave

. The Board determined the County did interfere with and discriminate against protected activity and the County could not avail itself of the
af firmative defense outlined in Great Dane under either the inherently destructive standard or the less burdensome comparatively slight standard because the County could not justify
its conduct with a valid business reason.
As a result of the Board’s findings , it determined the appropriate remedy was to permit members to use paid leave for the period after the strike, even if members refused to
return to work when called to return. The Board found that while members were not15

furloughed due to low patient census under the memorandum of understanding, members were reasonably confused given Culberson’s statements , and members understandably asserted rights under the memorandum of understanding to not return to work . Given the policy that remedial orders should make injured parties whole and deter future interference and discrimination, the Board found it necessary to order the County to allow members to use accrued leave for the three days they were barred from work. The Board further
ord er ed, “[u]nless the parties agree otherwise, [the County was to] permit [members] to use paid leave time for furloughs occasioned by a minimum shift guarantee in a strike replacement contract to the same extent as is permitted for furloughs resulting from reduced patient census or other business reasons.” The County filed a petition for writ of review relief in this court. We granted the petition and issued a writ of review.
DISCUSSION
I
The Act And Applicable Board Standards It is the express purpose of the Act “to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations.” (§ 3500.) S ection 3506 provides: “Public agencies and employee organizations shall not interfere with, intimidate, restrain, coerce or discriminate against public employees becaus e of their exercise of their rights under Section
3502.” Section 3502 provides in relevant part : “Except as otherwise provided by the Legislature, public employees shall have the right to form, join, and participate in the activities of employee organiza tions of their own choosing for the purpose of representation on all matters of employer

- employee relations. ” Section 3506.5, subdivision (a), similarly makes it unlawful for a public agency to “[i]mpose or threaten to impose reprisals on employees, to di scriminate or threaten to16

discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by [the Act ],” while subdivision (b) of the same section makes it unlawful for a public a gency to “[d]eny to employee organizations the rights guaranteed to them by [the Act ],” including the right of recognized employee organizations “to represent their members in their employment relations with public agencies.” (§ 3503; Los Angeles County E mployees Assn. v. County of Los Angeles (1985) 168 Cal.App.3d 683, 687; County of Riverside (2010) PERB Dec

. No. 2119

- M at pp. 20

- 21,
23 [34 PERC ¶ 108] .) The Act parallels the National Labor Relations Act (29 U.S.C. § 151 et seq.) , and
when interpreting the Act , it is proper to look to federal authority for its persuasive value

. ( Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 391; Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 815.) Over the
years, the Board and California ’ s courts have developed several tests for analyzing allegations arising under the above provisions of the Act and the virtually identical language
of other Board

- administered statutes. ( See, e.g., Campbell Municip al Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 424

- 425 ; Los Angeles County Superior Court (2018) PERB Dec

. No. 2566

- C at p. 15 [43 PERC ¶ 1 ]; Novato Unified School District (1982) PERB Dec

. No. 0 210

- E at pp. 3

- 7 [ 6 PERC ¶ 13114] ; Carlsbad Unified School
District (1979) PERB Dec

. No. 00 89

- E at pp. 10

- 11 [3 PERC ¶ 10031] ( Carlsbad ).) Broadly speaking, the various conduct proscribed by sections 3506 and 3506.5 may be
characterized as either interference or discrimination. ( L os Angel es Superior Court , at pp. 24

- 25, fn. 17.)
When a charging party has established a prima facie case of interference or discrimination, the burden shifts to the employer to prove an affirmative defense. 5 ( Great

5 The County does not dispute that Nurses established a prima facie case of interference and discrimination as to its adverse actions of threatening and then17

Dane , supra , 388 U.S. at pp. 33

- 34 [18 L.Ed.2d at pp. 1034

- 1035].) The Board applies the

same standard established in Great Dane for discrimination claims , but unlike Great Dane , the standard is applicable to both interference and discrimination claims. ( See Campbe ll Municipal Employees Assn. v. City of Campbell , supra , 131 Cal.App. 3d at p. 423 [applying
the affirmative defense announced in Great Dane to an inter ference claim]. ) If the harm to employee rights is “ ‘ “ comparatively slight,” ’ ” then the employer has the opportunity to provide evidence that its actions were motivated by legitimate and substantial business justifications. ( Campbell , at p. 424, citing Great Dane , at p. 34 [18 L.Ed.2d at p. 1035] ; Carlsbad , supra , PERB Dec

. No. 00 8 9

- E at pp. 10

- 11 .) If, on the other hand, the employer ’ s conduct is “ ‘ “ inherently destructive ” of important employee rights, no proof of
antiunion motivation is needed

. . . . ’ ” ( Campbell , at p. 4 23 .) In those instances, the employer ’ s conduct will b e excused only on proof that it was occasioned by circumstances beyond the employer ’ s control and that no alternative course of action was available. ( Carlsbad , at pp. 10

- 11

. )
II

The Board’s Legal Determinations Were Not Clearly Erroneous 6 The County raises several issues pertaining to the Board’s legal determinations

. These claims can be divided into three main issues : ( 1) the Board improperly determined the County’s adverse actions of threatening and implementing a policy prohibiting striking members from returning to work following the strike amounted to inherently destructive

implementing a delayed return

- to

- work schedule based on the hiring of strike replacement workers with a minimum shift guarantee

.
6 Because we conclude the Board’s decision was not clearly erroneous insofar as it determined the County’s refusal to allow striking members to return to work amounted to inherently destructive conduct and announced a new test applicable to public health care employers who utilize strike replacement services, we need not address the County’s appellate claim it would have prevailed under a comp aratively slight affirmative defense framework

.18

conduct ; ( 2) the Board’s newly announced test pertaining to contracts with strike replacement companies is illogical and not supported by Boa rd precedent or federal authority; and ( 3) the Board improperly determin ed the County’s failure to allow members

to use paid leave for the three days following the strik e interfered with and discriminated against protected activity

. When reviewing these claims, “ [i] t is settled that ‘[c]ourts generally defer to [the Board]’ s construction of labor law provisions within its jurisdiction.’ ” ( Boling v. Public Employment Relations Bd. (2018) 5 Cal.5 th 898, 911.) “ ‘We follow [the Board] ’s interpretation unless it is clearly erroneous.’ ” ( Id . at p. 912; County of Los Angeles v. Los Angeles County Employee Relations Com . (2013) 56 Cal.4 th 905, 922.) “[W]ithin [the Board]’ s area of expertise, the deferential standard .

. . applies to [ th e Board’s ] legal determinations even if based on undisputed facts.” ( Boling , at p. 913.)
A
The Board ’s Determination The County’s Delayed Return

- To

- Work Policy For Striking Members Amounted To Inherently
Destructive Conduct Was Not Clearly Erroneous When analyzing the degree to which the County’s conduct infringed on Nurses ’ and members’ protected rights as it pertained to the interference claim , the Board reasoned: “Denying work opportunities following a strike significantly coerces protected rights by discouraging employees from authorizing future strikes, and therefore gives rise to a robust duty to narrowly tailor. ” As it pertained to the discrimination claim, the Board further
stated : “if a hospital denied work opportunities to a greater degree for those who have engaged in protected activity, such conduct is facially discriminatory, and the significantly coercive impact rises to the level of inherently destructive.” The County contends this determination was clearly erroneous because the Board’s analysis failed to distinguish between conduct that i s inherently destructive a s opposed to19

inherently d iscriminatory , failed to comply with its own precedent, and unjustifiably rejected federal authority. We disa gree. T he Board’s stated reasons imply it believed the County’s conduct was not merely discriminatory , but that the County’s conduct resulted in a negative and prolonged impact
on Nurses ’ willingness to strike as a means of bargaining in the future

. Indeed, t he Board pointed to the fact that the County’s conduct discouraged future strikes

. Although these
reasons do not state a standard or grapple with the tension between the definitions of discriminatory and destructive conduct to th e County’s liking , th e County has not directed us to any requirement the Board must first recite the rules it applies or engage in a speci fic analysis before announcing its determinations . To require the Board to do so would elevate
form over substance an d fall outside our review of whether the Board’s legal determinations are clearly erroneous

. The County cites to Berke ley as stating the proper standard to apply when determining whether an employer’s conduct was inherently destructive or co mparatively slight. ( Regents of the University of California (Berkeley) (2018) PERB D ec . No. 2610

- H [43 PERC ¶ 100].) T he re, the Berkeley Board obser ved it had “never identified or explained
what distinguishe s comparatively slight harm from inherently destructive conduct .” ( Berkeley , at p. 58

. ) The Berkeley Board then considered several of its own decisions and
National Labor Rela tion Board decisions

. T he Berkeley Board stated it defined inherently
destructive conduct as the “ ‘natural and probabl e consequence’ [of which] would be to discourage the ex ercise of [protected] rights” or “would tend to discourage both present and future protected activity.” ( Berkeley , at pp. 58 , 59

. ) As to National Labor Relation Board
decisions , the Berkel e y Board observed federal authorities have defined inherently
destructive conduct as that which “typically ‘creat[es] visible and continuing obstacles to the future exercise of employee rights’ or has ‘far reaching effects which could hinder future bargaining.’ ” ( Berkeley , at p. 86

. ) With this in mind , the Berkeley Board noted, the
National Labor Relations B oard and federal courts “consider the temporal impact or likely20

duration of [the conduct’s] effect on protected activity.” ( Berkeley , at p. 86. ) Indeed, the National Labor Relations Board explained in International Paper Com pany “that, in evaluating the temporal impact on protected rights, both ‘the severity of the harm suffered by the employees for exercising their rights’ and ‘the severity of the impact on the statutory right being exercised’ should be considered.” ( Berkel ey , at p. 87, quoting Int ’l Paper Co. (1995) 319 NLRB 1253, 1269.)
The Berkeley Board pointed to several examples of inherently destructive conduct
under both state and federal authority . These examples include: “ conduct directed against a
union offic er, steward or other employee representative, in his or her capacity as an employee representative ”; “employer speech . . . when it contains express or implied threats, when it is likely to discourage employees from seeking union assistance, from using the collectively

- bargained grievance procedure, or from engaging in other protected conduct, or when it conveys the message that collective bargaining is futile”; “an employer’s outright or facial ban on union or other protected activity in non

- working areas and during non

- working time”; “an employer’s prohibition against union officers representing bargaining

- unit employees in investigative meetings ”; and “conditio ning a pay increase on surrendering protected rights

. ” ( Berkeley , supra , PERB Dec. No. 2610

- H at pp. 59 , 60, 6 1 , 87

. )
Here , t he Board consider ed the effect the C o unty’s conduct had on future protected activity and the severity of the County’s conduct on striking members. The Board
determined the County’s conduct was “significantly coercive

. ” The Board further found the County’s conduct “discourag[ed] employees from authorizing future strikes.” (Italics added.) Indeed, the County’s conduct targeted only those members who participated in the
strike , not those members who were exempt or crossed the picket line, who m the County
pe r mitted to work i n the days following the strike without qualification

. By targeting o nly striking members the night before the noticed strike with a delay ed return

- to

- work schedule
that more than doubled the length of the strike , the County demonstrated to Nurses and members that striking was not an effective means of bargaining, i.e., fut ile, because the21

length of the strike and the consequences ther e of were unavoidable and out o f Nurses’ and members’ control. This is similar to many of the examples cited by the Board in Berkeley. (See Berkeley , supra , PERB Dec. No. 2610

- H at pp. 59

- 61, 87 .) Accordingly, the Board’s determination complied with its precedent and was not clearly erroneous on this basis

. Similarly, the Board’s finding the County engaged in inherently destructive conduct
does not impermissibly deviate from federal authority

. The County argues the Board ignored Pacific Mutual Door Co. (1986) 278 NLRB 854 ( Pacific Mutual Door ) and nearly every other subsequent National L abor Relations Board decision, finding employer conduct
similar to that of the County’s conduct was not inherently destructive. ( Citing Knightsbridge Heights Rehabilitation Care Center (2008) 352 NLRB 6; Sutter Roseville
Medical Center (2006) 348 NLRB 637 ; AMI/HTI Tarzana

- Encino Joint Venture d/b/a
Encino T arzana Regional Medical Center (2000) 332 NLRB 914 ( Encino Tarzana) ; Harvey Mfg., Inc. ( 1 992) 309 NLRB 465

. ) But the Board address ed th ese federal decisions , ultimately finding them inadequate considering the realities of public sector labor relations

. T he Board is permitted to depart from federal law when it supplies a reasoned basis particular to the context of California public sector labor law for doing so. ( McPherson v.
Pub lic Emp loy ment Rel ation s Bd. (1987) 189 Cal.App.3d 293, 307

- 308; s ee Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 412

- 413 .) Further , while the
Act parallels the National Labor Relations Act , federal authority is merely persuasive

. ( Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. , supra , 11 Cal.3d at p. 391; Vernon Fire Fighters v. City of Vernon , supra , 107 Cal.App.3d at p. 815.) Here, the Board diverged from federal authority given the differences between the publ ic employment relationships governed under the Act and the private employment relationships governed under the Na tional Labor Relations Act. Specifically, the Board reasoned “ [e]mployers and unions under our jurisdiction each face stricter limits on their use of economic weapons than the restrictions governing their private sector counterparts. For instance, it is an unfair practice for a public sector union strike to cause an imminent and22

substantial threat to the public’s health or safety, and a union m ay lawfully strike pre

impasse only based upon employer unfair practices

. [Citations.] Employers, for their part, cannot lock out employees or permanently replace strikers, among other restrictions. [Citation.] These principles not only make inapposite private sector caselaw allowing an employer to disfavor strikers if it has made permanent new arrangements during an economic strike, but also aid us in discerning the boundaries that apply to the County’s conduct, which bears characteristics akin to a lo ckout.” The County argues these grounds are insufficient to justify the Board’s characterization of its conduct as inherently destructive as opposed to comparatively slight
because the re is no link between the stricter limits the Board has imposed in th e past and the County’s conduct here

. Not so. The Board “bring [s] expertise and uniformity to the delicate task of stabilizing labor relations.” ( San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12.) It is guided by the purposes of the Act : “ (1) to promote full communication between public employers and employees, and (2) to improve personnel management and employer

- employee relations. (§ 3500.) ” ( Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630

. )
To fulfill this purpose , the Board has imposed limitations on the bargaining process nonexistent in private lab or relationships . For example, the Board has prohibited the permanent replacement of striking workers

. ( C ompare Fremont Unified School Dist. (1990)
PERB Dec. No. 1054

- E at pp. 10

- 11 [14 PERC ¶ 21107 ] with Vessey & Co. v. Agricultural
Labor Relations Bd. (1989) 210 Cal.App.3d 629, 654, citing National Labor Rel

. Bd. v.
Mac k ay Radio & T. Co. (1938) 304 U.S. 333, 345

- 346 [ 82 L.Ed. 1381 , 1389

- 1390 ] [ i f a private employer has permanently filled a position held by an economic striker before receiving the striker ’ s offer to return to work, the striker is entitled to reinstatement as jobs
become available ]

. ) The Board has also prohibit ed employees from striking before an impasse except on specified grounds

. ( C ompare County of Trinity (United Public Employees of California, Local 792) (2016) PERB Dec. No. 2480

- M at p. 3 [ 40 PERC ¶23

171 ] [a strike occurring before an impasse and completion o f any required impasse procedures creates a rebuttable presumption the union has breached its duty to bargain in good faith] with N

. L

. R

. B. v. Insurance Agents ’ Internat ional (1960) 361 U.S. 477 , 4 8 9

- 491 [ 4 L.Ed.2d 454, 463

- 466 ] [ National Labor Relations Board lacks authority to limit a union ’ s economic tools, including to prohibit it from striking before an impasse ]

. ) The Board has
further allow ed employers to enjoin potential ly striking employees from striking if the
absence of those employees would harm public health or safety

. ( City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 611 ; County Sanitation Dist. No. 2 v. Los Angeles County Employees ’ Assn. (1985) 38 Cal.3d 564 , 585

- 58 7

. )
Given the re strictions in place for public labor relationships that do not exist for their private counterparts, the County’s conduct would be perceived different ly by a public

- sector employee subject to the additional restrictions in comparison to a private

- sector employee not subject to those restrictions

. For example , a private

- sector employee , like the employees
in Pacific Mutual Door , would not see the inability to return to work for 30 days following
the end of a strike inherently destructive to the right to strike when that same employee risks permanent replacement, and the inability to return to work at all , by choosing to strike

. ( Pacific Mutual Door , supra , 278 NLRB at pp. 8 55

- 856.) Similarly , a private

- sector union
would not perceive the inability to promptly return to work inherently destructive if it too had strong economic weapons , like the ability to call a strike before an impasse an d for all
its member s to strike regardless of their importance to the business’s functionality

. Instead, public

- sector employees, like members here, face restrictions on when they c an strike and
the detrimental effect of their strike , under the promise they can return to their jobs . This playing field allows the risk public

- sector employee s undertake to be more predictable and
within their own control

. Taking control from the public

- sector employee by extending a strike period (in this case more than doubling the strike period ) serves to unpredictably
increase the risk the employee undertakes and undoubtedly discourage s future strik ing24

activity to a greater degree than on the federal landscape. Thus , the Board’s departure from federal authority was justified

. Still, t he County disagrees , arguing th e Board misjudged the labor negotiation playing field by failing to con sider the narrow conditions necessary for an injunction and the
federal law excepting supervisors from the definition of employees, thus making supervisors incapable of participating in a strike , unlike the case here

. ( S ee Santa Clara County
Couns el Attys. Assn. v. Woodside ( 1994) 7 Cal.4th 525, 537)

. We are not persuaded. As discussed, t he Board’s departure from federal law has a justified basis grounded in the particulars of California public

- sector labor law . A pplying the clearly erroneous standard of
review , the County cannot demonstrate the Board acted in excess of its authority when determining the County’s conduct was inherently destructive

. B The Board’s Newly Announced Test Pertaining To Contracts With Strike Replacement Companies In Public Health C are Settings Was Not Clearly Erroneous The County contends the Board’s newly announced three

- part test is clearly

erroneous by attacking all three parts of the test

. Again, the test requires a public health care employer to “prove that: (1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any mini mum 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 commit ment 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 bargaini ng unit employees.”25 1
Part One As it pertains to the first part , the C o unty argues the test’s assessment of an employer’s “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 ” necessarily views the hiring of a strike replacement company as inherently
destructive conduct and requires an employer to choose the contract with the shortest shift guarantee without regard to coun tervailing interests. This is so, the County argues , despite the Board’s exception stated within the test itself that the health care employer could ultimately agree to a longer shift guar a ntee “ in order to maintain critical health care
services .” We dis agree. T he Board’s decision does not suggest it believed entering into a replacement

contract containing a minimum shift guarantee would always constitute conduct inherently destructive to protected rights . The Board determined the County’s use of th is type of

contract was inherently destructive

. The decision lays out a three

- part test to be read in light
of a n inherently destructive or comparatively slight finding

. C omparatively slight conduct is excused upon evidence the employer’s actions were

mot ivated by legitimate and substantial business justifications. ( Campbell Municipal Employees Assn. v. City of Campbell , supra , 131 Cal.App.3d at p. 424

. ) But , when considering comparatively slight conduct, the stronger the tendency to harm, the greater th e employer’s burden to show its business need w a s important and that it narrowly tailored its
actions or rules to attain that purpose while limiting harm to protected rights as much as possible. ( City of San Diego (2020) PERB Decision No. 2747

- M at p. 36, fn. 19 [ 45 PERC ¶ 45] .) Thus, while an inherently destructive standard require s the most tailoring, comparatively slight conduct produces a sliding scale dependent on the level of harm inflicted by an employer

. This s liding scale is c onsistent with the first part of the test that
balances an employer’s good faith effort to eliminate minimum shift guarantees from26

contracts with strike replacement companies against its ability to maintain critical health
care services

. Indeed, the stand ards fit together well. As the County argues , there are various concerns relevant to a health care employers ’ efforts to hire replacement workers and maintain critical health care services , including the quality of the replacement workers offere d , a hosp ital’s prior experience with the replacement company, the reliability of the replacement staff offered , and how the replacement company otherwise serves a hospital’s needs

. Under a comparatively slight framework, these considerations are relevant to whether a hospital tailored its legitimate and
substantial business justification s to the need to hire replacement workers with a minimum shift guarantee and is also relevant to an inherently destructive framework to demonstrate a hospital act ed out of a business necessity

. The test announced by the Board allows for the nuance the County demands and does not treat every employer who enters a strike replacement contract containing a minimum shift guarantee as having committed inherently
destruc tive conduct

. N or does the test provid e an illusory balancing of hospital interests

. The County also challenges the first part of the test by pointing to various National
Labor Relations Board decisions for the proposition that those decisions did not require employers to shop around for a strike replacement compan y with a lower minimum shift guarantee. (Citing Pacific Mutual Door Co. , supra , 278 NLRB at p. 854; Sutter Roseville
Medical Center , supra , 348 NLRB at p. 637; Encino Tarzana , supra , 332 NLRB at p. 9 14;
Roosevelt Memorial Medical Center ( 2006) 348 NLRB 1016 .) These decisions are the same decisions the County cited when arguing the Board impermissibly diverged from federal authority by declaring its conduct inherently destructive. For the same reasons we conclude d that divergence justified , i.e., the stricter limits on public employers ’ use of economic weapons compared to the restrictions governing their private sector counterparts ,

we conclude the Board’s divergence from federal authority in this regard justified as well. ( See McPherson v. Public Employ ment Relations Bd. , supra , 189 Cal.App.3d at pp. 307

- 308.)27 2
Part Two The County challenges the second part of the Board’s test

-- that a hospital

- employer is permitted to bar employees from work only when the minimum shift guarantee reduced
work opportunities, but must offer remaining work opportunities without discriminating against those who participated in protected activity

-- on the ground that federal law permits employers to bar employees from work for the entire duration of the strike replacement

contract regardless of work opportunities in the period between the conclusion of a strike and the end of the minimum shift guarantee

. We agree with the Board that federal authority pertaining to strike replacement contracts is confus ing as to how an employer must offer
availa ble work opportunities in the period following a strike and before the end of a minimum shift guarantee. The County relies again on Pacific Mutual Door , Sutter Roseville Medical Center , Encino Tarzana , and Roosevelt Memorial Medical Center for its argum ent to undercut the second part to the Board’s test. While the National Labor Relations Board broadly stated a rule in Encino Tarzana , supra , 332 NLRB at pages 917

- 918 , and Sutter Roseville Medical
Center , supra , 348 NLRB at p age 642 , purportedly from Pacific Mutual Door , supra , 278 NLRB at p age 856 , that until a minimum shift guarantee has been canceled or satisfied , an employer has a legitimate and substantial business justification for delaying reinstatement of
striker s , that broad r ule is not called into question here. Indeed, the Board adopted a substantially similar standard in the second part of its test by recognizing minimum shift guarantees as a justified reason to deny work opportunities to striking employees after a
strike h as ended. As it pertains to how an employer offer s work opportunities not covered by replacement workers in the period after a strike but before the end of the minimum shift guarantee, Pacific Door and Encino Tarzana are silent. ( Encino Tarzana , supra , 332 NLRB

at p. 918 [“The only reason that everyone who was scheduled during the Three

- D ay P eriod28

was not needed was the lawful presence of the temporary replacements”]; Pacific Door , supra , 278 NLRB at p p

. 855

- 856 .) “ ‘It is axiomatic that cases ar e not authority for propositions not considered.’ ” ( In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)
Sutter Roseville Medical Center , on the other hand , supports the second part of the Board’s test. There, the union “conceded the Respondent [ H osp ital] had a legitimate business justification for retaining the employment agency

- supplied temporary employees for the period for which they were contracted” but the National Labor Relations Board found it unlawful to fill available poststrike work opportu nities with supervisors and transferees not affiliated with the employment agency instead of striking employees . ( Sutter
Roseville Medical Center , supra , 348 NLRB at pp. 645

- 647.) Similarly, in Roosevelt
Memorial Medical Center , a union notified a hospital of a strike prompting a hospital administrator to hire replacement workers with a minimum shift guarantee. The union
thereafter called off the strike and the hospital administrator reworked the schedule to integrate as many st riking employees as possible to work as close to t heir prestrike hours as possible. The National Labor Relations Board found the hospital’s conduct comparatively slight and its unilateral scheduling (because the union refused to participate when requested )
lawful given the efforts taken by the administrator and the few employee s who were affected by the schedule change. 7 ( Roosevelt Memorial Medical Center , supra , 348 NLRB at pp. 1017

- 1021.) Both of these cases stand for the proposition adopted by the Bo ard that
strikers can be denied work based on a minimum shift guarantee, but to the extent work

7 Roosevelt Memorial Medical Center provides a n example of how a hospital’s conduct i n hiring strike replacement companies with minimum shift guarantees can be determined comparatively slight, as opposed to inherently destructive, and a hospital’s efforts can potentially satisfy the Board’s three

- part test. Indeed, the National Labor Relations Board noted how the hospital administrator’s efforts showed potentially striking members that striking was not futile or discouraged , and any detriment was felt temporarily instead of targeted at future protected acti vity . ( Roosevelt Memorial Medical Center , supra , 348 NLRB at p p

. 1018

- 1019.)29

opportunities arise, those opportunities must be offered on a nondiscriminatory basis. (See
also The Waterbury Hospital (1990) 300 NLRB 992, 1007 [ when no perm anent replacements hired, employers must reinstate all employees (both strikers and nonstrikers) equally ].) Accordingly, the second part of the Board’s test is not clearly erroneous.
3
Part Three The County challeng es the third part of the Board’s new test

-- that a hospital

employer provide a union with timely notice of a decision to hire replacement workers with a minimum shift guarantee , and if requested, bargain in good faith over the potential impacts on bargain ing unit employees

-- on seven grounds. First, the County argues it has the unquestionable right to prepare for a strike of its
health care employees , including by hiring replacement workers . Indeed, the County argues, the hiring of replacement workers is similar to other strike preparations typically performed confidentially

. B ut the County fails to cite any legal authority for this proposition

. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [parties must “support each point by argument and, if possible, by citation of authority” otherwise the contention is forfeited];
McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Moreover , notifying union me mbers of a minimum shift guarantee for replacement workers or bargaining with them regarding
the impacts of such a decision does not inhibit an employer ’ s ability to prepare for a strike or otherwise minimize the disruption to an employer’s business. T o b e sure, t he test does not require an employer to secure its employees’ permission before entering into a contract with a strike replacement company. In fact, communicating with employees about the minimum shift guarantee with replacement workers would hav e minimized the disruption
here and established clear standards instead of the confusion that resulted from the surprise
minimum term and available leave designations. (See § 3500 [purpose of the Act is to promote communication between employers and employees].)30

Second, the County argues part three of the newly enacted test is clearly erron e ous because it imposes a one

- sided duty on the employer to provide notice of a minimum shift guarantee and to bargain with union members regarding the impacts of such a contract term

. To the County, a union would have an incentive to increase costs to the County under these
circumstances , and the County would have no comparable opportunity to minimize the
effects of the strike

. Similarly, the C o unty ’s remaining a rgu ments pertain to a union ’ s incentiv e to use an employer’s newly enacted duty to bargain over strike impacts as a way to file more charges before the Board and stall otherwise substantive and productive negotiations between the union and the employer

. T he County has failed to demonstrate how these policy considerations could lead to a clearly erroneous conclusion on our part. Indeed , the County does not argue th is part of th e test is contrary to Board precedent or federal authority. It instead prese nts multiple policy
considerations in an attempt to guide us to the conclusion the test is a bad idea. But the Board’s duties are two

- fold: “ (1) to promote full communication between public employers and employees, and (2) to improve personnel management and employer

- employee
relations. ” ( Claremont Police Officers Assn. v. City of Claremont , supra , 39 Cal.4th at p. 630.) Th e third part of the Board’s test clearly seeks to foster these purposes and lead to
better communication and relations between publi c health care employers and their employees

. Finally, the County argues the Board’s consideration of this factor is particularly
unfair because there was no allegation in the complaint the County violated the Act by failing to notify Nurses it entered i nto a contract with a strike replacement company that
contained a minimum shift guarantee , nor that it failed to bargain over the impacts of such a
decision

. Again, we do not see how this consideration leads to a conclusion the test the Board announced was clearly erroneous in light of its duties under the Act and its precedent. Instead, the County appears to be arguing th e Board abused its discretion by impos ing remedial orders beyond that which w ere alleged and litigated. We will address this31

argument post ; but, as far as the County ’s attempt to demonstrate the Board’s test is erroneous, we are unpersuaded.
C The Board’s De termination T he County Unlawfully Prohib it ed Members From Using Paid
Leave For The Three Days After The Strike Was Not Clearly Erroneous The County contends the Board clearly erred by finding its refusal to allow members to use paid leave for days they were barred from returning to work constituted
discrimination and interference because there is no evidence the County did so based on protected activity

. To the contrary, the County argues, it treated the three days after the
strike as it woul d any other time an employee did not work a scheduled shift. We note the County does not analyze this issue under the well

- established discrimination or interference standards. Instead, it offers what it believes to be contradictions in the Board’s reas oning without citation to authority or analysis as to how the Board’s reasoning fails to meet the well

- established standards. “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and
citations to fact s in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ [Citations.] Hence,

co nclusory claims of error will fail.” ( In re S.C. (2006) 138 Cal.App.4th 396, 408. ) In any event, the Board found the County both interfered with and discriminated against protected activity when denying use of paid leave for the three days following th e strike. T o establish a prima facie interference case, a charging party must show an employer’s conduct tends to or does result in some harm to union or employee rights protected by the Act. Importantly, the charging party does not need to show an impro per motive. ( City of San Diego , supra , PERB Dec. No. 2747

- M at p. 36.) Thus, as far as an interference claim is concerned, the County’s argument the Board erred because no evidence demonstrat ed the County denied paid leave based on Nurses’ and members’32

exercise of protected rights fails at the outset. The County’s prohibition against the use of
accrued leave by striking members for the three days following the strike resulted in striking members not being paid , despite a willingness to work , for more than twice as long as members had anticipated. This harmed Nurses’ and members’ protected right s because it discouraged future striking activity by expanding the risk involved in striking beyond the control of those participating in the strike as described ante

. There was no need to
demonstrate the County’s acts were motivated by Nurses ’ and members ’ exercise of protected rights , and we fail to see how the County’s practice in other contex ts is relevant to how it treated striking employees differently following the strike

. Similarly, a finding of discrimination is not dependent on a showing the County’s conduct was motivated by a disc riminatory intent. Indeed, if an employer’s conduct f acially discriminates based on protected activity, it constitutes “ ‘ discri mi nation in its simplest form, ’ ” and the Board may thus infer unlawful discrimination without further evidence of motive. ( Los Angeles Superior Court , supra , PERB Dec. No. 2566

- C at p. 14.) The Culberson memo explicitly prohibited striking members from returning to work for three days after the strike and the County then refus ed to allow those members to use accrued
time to offset the lost time at work

. The County did not target nonstriking members in the days following the strike in the same way; some of the nonstriking members chose not to
work because the essential worker injunction was no longer in effect

. Further , the evidence did not establish the County was prevented from offering members the use of accrued leave. In fact, the County permitted members to use accrued
time when it prohibited them from working during schedule d shifts because of low patient

census

. The fact the memorandum of understanding provided for this type of furlough is of
no consequence. Our focus is on the County’s actions in the face of members’ protected activity. ( § 3506.) Snyder’s and Culberson’s testimony establish the County’s only concern was paying for double staff. But Snyder testified accrued leave was already allocated to members and existed in a pot of money different from that which paid wages. In the only33

other instance in which the County prohibited members from working scheduled shifts, the County offered members use of their accrued leave. The fact the County did not similarly do so in the days following the strike supports the Board’s deter mination the County ’s prohibition was based on Nurses ’ and members ’ exercise of protected activity. Thus, the Board did not clearly err by finding a nexus between protected activity and the adverse action taken by the County. (See Novato Unified School D istrict , supra , PERB Dec. No.
0210

- E at p p. 73

- 74 .)
I II

The Board’s Decision I

s Supported By Substantial Evidence The County contends the Board’s decision is not supported by substantial evidence
because no evidence support s its findings the County failed to make a good faith effort to negotiate for a contract with the least minimum shift guarantee and it discriminated against strike participants when offering available work following the strike

. We disagree.
The Board ’ s factual findings, which include credibility findings, are conclusive if substantial evidence on the whole record supports them. (See § 3564, subd. (c).) We do not reweigh the evidence but accept the Board’s reasonable inferences

. ( Boling v. Public Emp loyment Relations Bd. (2018) 5 Cal.5th 898, 912

- 913 .) Even if contrary findings may seem equally or even more reasonable than the Board ’ s findings, we uphold the Board ’ s decision as supported by substantial evidence if the Board’s findings are reasonable

. ( Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 617.)
A The Board’s Factual Finding The County Did Not Make A Good Faith Effort To Reduce The Minimum Shift Guarantee Is Supported By Substantial Evidence
The Board determined “[ t ] he County did not establish that it made a good faith effort in the marketplace to negotiate a contract that would eliminate th e minimum shift guarantee or shorten it to the greatest degree possible. ” The Board based this finding on the County’s34

inadeq uate efforts to collect bids from strike replacement companies, the lack of testimony supplied by the County demonstrating the indu stry standard regarding the length of minimum shift guarantees for strike replacement workers, and the County’s failure to negotiate the length of the minimum shift guarantee. The County argues insufficient
evidence was presented at the administrative hea ring to support the Board’s finding the County failed to collect a sufficient number of bids and failed to adequately negotiate the length of the minimum shift guarantee. 8 Addressing the County’s efforts to collect bids for strike replacement workers, the County argues the Board’s observation that the County had plenty of time before the strike
to solicit bids from strike replacement companies penalized the County for planning ahead to protect its ability to provide patients with vital health services. Not so. The Board did not hold it against the County that it contracted with Healthsource in October 2019, long
before the strike . The Board considered the four months the County searched for strike replacement companies between June and October 2019 and determined those four months

were plenty of time in which to research and communicate with multiple strike replacement companies to find the best one to serve the County’s needs . The Board did not suggest the County should have taken longer or delay ed entering into a contract until closer to the actual
strike. The County also questions why the Board thought soliciting bids from three strike replacement companies was insufficient. T he Board did not say soliciting bids from three strike replacement companies was insufficient. The Board thought the County’s solicitation

8 The County also c hallenges the Board’s finding it “likely k n ew, or should have known, that [Nurses] and [ the Service Employees Union] commonly hold strikes lasting fewer than f

ive days at many California hospital s

. ” We do not address this challenge because the Board did not consider this fact as evidence the County did not act in good faith

. It considered this fact to question “why the C o unty failed to negotiate over the minim um shift guarantee before executing a replacement contract .” It is this latter consideration that supported the Board’s lack of good faith finding , and it is this consideration we review

.35

of the three companies at issue was insufficient. Indeed, Ma xim was not a strike replacement company and the County was having problems with Maxim’s services at the time it requested a bid for strike replacement workers. The evidence on this point supports the Board’s finding the County never seriously entertained Maxim as an option, and thus the County did not adhere to its own policy of obtaining three quotes before contracting with a strike replacement company. As a practical matter , the County solicited a bid from a prohibitively expensive strike replacement company and a company with whom it had negotiated in the past. The County was unaware of any other option s in the market place and presented no evidence pertaining

to the contents of a typical contract with a strike replacement company for the Board to

com pare to the County’s ultimate contract

. While the County was un aware of the particulars of the Board’s new test, it was aware it would need to justify its decision with a legitimate business reason or business necessity

. (See Campbell Municipal Employees Assn. v. City of Campbell , supra , 131 Cal.App.3d at p. 423.) As discussed ante , and contrary to the County’s argument here, th is requirement does not negate the importance of the County’s considerations when contracting with a strike replacement company , but
instead balances its efforts with the impacts its decision ha d on members who exercise protected activity. The County has raised no arguments undermin ing the Board’s finding the County made inadequate efforts to collect bids from strike repl acement companies and
has present ed no evidence regarding the industry standard pertaining to minimum shift guarantees

. Addressing the County’s failure to negotiate a shorter minimum shift guarantee, the County disputes the Board’s finding that “ ‘[h]ad t he County negotiated in a timely manner to change the [minimum shift guarantee] as i t sought to change other contract terms, it is more likely than not that [Healthsource] would have reduced the minimum period in order
to secure the C o unty’s business.’ ” First, the County contends it tried to negotiate a lesser minimum shift guarantee

. The Board agreed the County tried to negotiate a lesser minimum36

shift guarantee; however, the Board’s issue was that the attempt to lower the contractual term happened after the County had already entered into a contract with Healthsource containing a five

- shift minimum guarantee . At that point, the County’s bargaining power had already been reduced and Healthsource had no incentive to agree to a different term
than the term already in the contract. This finding, and the reasonable inference regarding bargaining power flowing therefrom, are supported by Snyder’s testimony she did not negotiate the substance of the contract with Healthsource until after selecting Healthsource for the strike replacement contract. The County also contends there was no evidence Healthsource would have agreed to
a lower minimum shift guarantee given Elbahou’s testimony th e five

- shift guarantee was Healthsource’s standard term. But Elbahou’s had no knowledge of other contracts entered
into by Healthsource and he was not involved in many of the negotiations with the Count y. T he Board t ook administrative notice of other Healthsource contracts demonstrating Healthsource had agreed to lower minimum shift guarantees , and the County does not argue
the administrative notice was taken in error

. The evidence demonstrated Healths ource had negotiated lower minimum shift guarantees in the past and may have done so again if the County had raised the issue before agreeing to enter into a contact with Healthsource. The County argues the context of the other contracts is much different than the one entered into with the County . But the County did not supply any evidence on that point, as it was required to do as the party bearing the burden of proving the affirmative defense. ( Great
Dane , supra , 388 U.S. at pp. 33

- 34 [ 18 L.Ed.2d at pp. 1034

- 1035].) Instead , it called Elbahou to testify and his knowledge was lacking as to the context of the other contracts

. Accordingly, sufficient evidence supports the Board’s findi ng the County failed to establish it made a good faith effort to enter into a contract containing a s short a minimum shift guarantee as possible in light of maintaining critical health care services

.37 B The Board’s Factual Finding The County Discriminated A gainst Strike Participants When

Offering Available Work Is Supported By Substantial Evidence
The B oard found the County preferred nonstrikers over strikers when filling available work opportunities after the strike based on the C o unty’s admissions and deviation from established practices to offer full

- time nurses work opportunities before other types of

nurses

. The County disputes this finding, arguing it never admitted or stipulated it treated striking members differently than no nstriking workers and there was no evidence pertaining to the County’s established practices. We disagree. The evidence established the County filled striking members ’ shifts during the two

day strike with strike replacement workers, traveling nurses, an d essential employee
members enjoined from striking

. When the strike was over and members attempted to work their scheduled shifts, Culberson told members the shifts were filled and that members were
not needed to fill shifts

. It was not until essential employees enjoined from striking refused
to work , because they were no longer under an order to do so, that the County attempted to fill available work opportunities with striking members. But work opportunities not covered by strike replacement workers w ere available after the strike , the County just kept in place the nonstriking members and traveling nurses it had relied on during the strike. The County stipulated to this fact and admitted as much during testimony. Based on these admissions,
we need not address the County’s argument th e call

- off order for low census furlough s contained in the memorandum of understanding did not constitute the County’s established practice

. Accordingly, sufficient evidence supports t he Board’s finding the County preferred nonstriking workers to fill available work opportunities following the strike.
I V The Board’s Chosen Remedy Was Not An Abuse O f Discretion The County contends the Board imposed an overbroad and punitive remedy by

or dering the County to pay members for the period of time they were barred from work , and38

to offer this pay structure in the future . The County raises several arguments in this regard : that it should not be required to pay members who were offered work opp ortunities during the three days after the strike but refused to return to work ; that the Board ’ s remedy of providing the use of accrued leave contradicts the rule it announced that the County bargain over the impacts of a minimum shift guarantee that last s longer than a planned strike ; that the remedy does more than make members whole because, as the Board acknowledged, members’ absence s w ere not due to low patient census , making vacation pay unavailable in
the first instance ; and that Nurses never alleged the County committed an unfair practice by failing to negotiate the impacts of a delayed return

- to

- work schedule, thus it was outside the Board’s authority to remedy an unalleged violation. We disagree.
The Board “has broad powers t o remedy a violation of the Act. ( [Citation s] ; see § 3509, subd. (b) [ ‘ The initial determination as to whether the charge of unfair practice is justified and, if so, the appropriate remedy to effectuate the purposes of [the Act], shall be a
matter within the exclusive jurisdiction of [ the Board ] .

. . . ’ ]; see also § 3541.3, subd. (i ) . . . ; § 3541.3, subd. (n)

. . . .) ” ( Boling v. Pub lic Emp loyment Rel ation s Bd. (2019) 33 Cal.App.5th 376, 387 ( Boling II )

. )
The Board also has “ the power to issue [an] .

. . order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this ch apter

. ” (§ 3 541.5, subd. (c); see also Cal. Code Regs., tit. 8, § 32325 [“ The Board shall have the power to issue a decision and order in an unfair practice case directing an offending party to cease and desist from the unfair practice and to take such
af firmative action .

. . as will effectuate the policies of the applicable statute”].)
We review the Board’s remedial orders for abuse of discretion. ( Boling II , supra , 33 Cal.App.5th at p. 387 .) “ Generally, a ‘ remedial order “ should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can be fairly said to effectuate the policies of the Act. ” [Citations.] ’ ([Citations] ; Jasmine Vineyards, Inc. v.39

Agricultural Labor Relations Bd. (1980) 113 Cal.App.3d 968, 982

. . . [ ‘ [i] t is only when the remedies ordered by the Board are patently outside the Board ’ s authority that a reviewing
court can interfere ’ ].) [¶] Nonetheless, [the Board’s] remedial orders may not be punitive. [Citation .] They may not violate the separation of powers doctrine. [Citation.] And, they may not encroach upon statutes and policies unrelated to the Act and, therefore, outside of [the Board’s] competence to administer. ” ( Boling II , supra , 33 Cal.App.5th at p p. 387

- 3 88

. ) The Board’s order that the County allow members to use accrued leave , even if those
members refused to return to work when ordered to do so , was not an abuse of discretion. The Board grounded this decision in the particular facts of the case , leading us to conclude
the decision was not guided by punitive intentions. When attempting to return to work, members inquired whether Culberson had invok ed the furlough process outlined in the memorandum of understanding

. Culberson testified he was not clear and misspoke. He also testified he never told members they were not being fu r loughed pursuant to the memorandum of understanding

. Given this misunderstanding, the Board justifiably treated
members who refused to retur n to work similar to members who were never requested to
return to work

. The Board imposed the remedy of allowing members to use accrued leave based on the County’s discriminatory prohibition against it and the County’s discri minatory policy instituting a delayed return

- to

- work schedule. As discussed, ante , these determinations were not clearly erroneous . Accordingly , the use of paid leave makes members whole in the sense it puts them in the position they expected to be in when notifying the County of t he

two

- day strike. Indeed, this remedy actually benefits the County in that sense because it pulls upon a pot of money already allocated to members instead of forcing the County to pay the wages members expected to make when notifying the County of the st rike

. T he Board’s order to permit members to use accrued leave in similar future
situations , unless the parties agree otherwise , wa s also not an abuse of discretion. The County argues this remedy contradicts the Board’s newly announced rule that it will bargain40

over the impacts of a minimum shift guarantee

. We disagree because the Board’s order is specific to the County and Nurses and th eir established practices and not applicable to all labor disputes involving all health care providers. The County treated members differently
after the strike than it treat ed them in the only other similar situation in which members are prohibited from work ing when they are otherwise able and willing to work

-- furloughs due

to low patient census. The County argues the Board erred because the fact members can use
accrued leave in the event of the low patient furlough s was a bargained

- for perk specific to
ti mes when the Hospital has a low patient census. But the County has not pointed to any other circumstance where members are told not to work a scheduled shift through no fault of
their own and then denied pay and the use of accrued leave. Indeed, several members testified that it was their understanding that whenever they are prevented from working a scheduled shift but are willing to work , they consider it a “furlough” and are permitted to use accrued leave. Thus, the only reason members would not be per mitted to use accrued
leave under the circumstances present here is because members exercised their protected right to strike. That is discrimination in its purest form ( Los Angeles Superior Court , supra , PERB. Dec. No. 2566

- C at p. 14 ), and the Board acted within its authority to prevent the County from engaging in discriminatory practices in the future. Finally, it is of no concern that Nurses did not allege the County committed an unfair practice by failing to bargain over the imp acts of a delayed return

- to

- work schedule. The fact the County did not attempt to lessen the impacts of a delayed return

- t o

- work schedule

was subsumed in Nurses’ allegations the County discriminated against and interfered with protected activity by threat ening and implementing a delayed return

- to

- work schedule and by penalizing members for not working scheduled shift s when the failure to work was
outside of their control . The Board’s remedial order remedies the discrimination and interference resulting fr om these adverse actions , which could have been lessened by notice and negotiations over impacts, and the Board did not need to ground its orders in a separate
failure

- to

- bargain finding.41 V The Board Did Not Err By Applying It s Newly Announced Test Retroactiv ely The County contends the B oard’s newly announced test should not have been applied retroactively because the County relied on settled and persuasive National Labor Relations Board decisions finding contracts with strike replacement companies containing minimum shift guarantees to be conduct that is comparatively slight and justif y ing delays in reinstating workers

. We disagree. “ ‘As a general rule, judicial decisions are given retroactive effect, even if they represent a clear change in the law. [Citation.] The exception is when considerations of fairness and public policy are so compelling in a particular case that, on balance, they outweigh the c onsiderations that underlie the basic rule. [Citation.] This exception applies in particular when a party justifiably has relied on the former rule.’ ” ( Bearden v. U.S.
Borax , Inc. (2006) 138 Cal.App.4th 429, 442.) As the County points out, the Board h as no settled rule regarding contracts with strike replacement companies. Indeed, the Board has never decided whether a n employer’s
conduct in contracting with a strike replacement company requiring a minimum shift guarantee constitute s inherently destruc tive or comparatively slight conduct. Even with its decision here, the Board did not determine that such conduct always constitute s inherently destructive conduct, but instead determined the inquiry was highly factual and dependent on the totality of an e mployer ’ s conduct and considerations when hiring a strike replacement
company. The County asserts it looked to persuasive authority when entering into a
contract and it was unforeseen that the Board would diverge from that persuasive authority. The County’s assertions are disingenuous considering the multiple instances in which the Board has diverged from National Labor Relations B oard decisions. (See , e.g., Ci ty of San Jose v. Operating Engineers Local Union No. 3 , supra , 49 Cal.4th at p. 611 ; Fremont Unified School Dist. , supra , PERB Dec. No. 1054

- E at pp. 10

- 11 ; County of Trinity (United Public Employees of California, Local 792) , supra , PERB Dec. No. 2480

- M at p. 3.) Thus,42

the County has not shown a reasonable reliance on the National Labor Relations B oard rule , and the Board did not err by applying it s newly

- announced test retroactively

. DISPOSITION The Board’s decision is affirmed. The parties shall bear their own costs.

/s/ Robie, Acting P.J.

We concur:

/s/ Mauro, J.

/s/ Earl, J.