1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NICOLE J. DARO SBN 276948 KYRSTEN B. SKOGSTAD SBN 281583 ANTHONY J. TUCCI SBN 288819 CALIFORNIA NURSES ASSOCIATION LEGAL DEPARTMENT 155 Grand Avenue, 2nd Floor Oakland, CA 94612 (510) 273-2200 (telephone) (510) 663-4822 (facsimile) Attorneys for Charging Party CALIFORNIA NURSES ASSOCIATION THE STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD CALIFORNIA NURSES ASSOCIATION, Charging Party, and COUNTY OF SANTA CLARA. Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SF-CE-1648-M CALIFORNIA NURSES ASSOCIATION’S REQUEST FOR INJUNCTIVE RELIEF AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [8 Cal. Code Reg. § 32450]
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NICOLE J. DARO SBN 276948 KYRSTEN B. SKOGSTAD SBN 281583 ANTHONY J. TUCCI SBN 288819 CALIFORNIA NURSES ASSOCIATION LEGAL DEPARTMENT 155 Grand Avenue, 2nd Floor Oakland, CA 94612 (510) 273-2200 (telephone) (510) 663-4822 (facsimile) Attorneys for Charging Party CALIFORNIA NURSES ASSOCIATION
THE STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD CALIFORNIA NURSES ASSOCIATION,
Charging Party, and COUNTY OF SANTA CLARA.
Respondent.
) ) ) ) ) ) ) ) ) ) ) ) )
Case No. SF-CE-1648-M CALIFORNIA NURSES ASSOCIATION’S REQUEST FOR INJUNCTIVE RELIEF AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [8 Cal. Code Reg. § 32450]
CNA’s Request for Injunctive Relief
PERB Case No. SF-CE-1648-M
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................ii
I. INTRODUCTION .................................................................................................... 1
II. REQUEST FOR INJUNCTIVE RELIEF ................................................................. 3
III. SUMMARY OF RELEVANT FACTS .................................................................... 3 IV. ARGUMENT .......................................................................................................... 4
A. There Is Reasonable Cause To Believe That The County Has Committed Unfair Labor Practices, Warranting Injunctive Relief. ................................... 5 1. Reasonable Cause Exists that the County Violated the MMBA by
Failing to Recognize and Bargain with CNA as the Exclusive Representative of the Nurses and Case Managers at the Purchased Hospitals ....................................................................................................5
i. The County will hire a “Substantial and Representative
Complement” of Verity’s workforce .............................................7 ii. There will be “Substantial Continuity of Operations” between
Verity’s operations of the purchased Hospital’s and the County’s operations.......................................................................8
iii. The unit of RNs at the purchased Hospitals will remain
separate and appropriate after the sale .........................................10 2. Injunctive Relief Is Appropriate Because there Is Reasonable Cause
to Believe that the County Committed and Unfair Labor Practice By Processing a Unit Modification of the County RNPA Unit without a Petition and Proof of Majority Support ....................................................17
3. There Is Reasonable Cause to Believe that the County Has
Unlawfully Assisted RNPA and CEMA through, inter alia, Accreting CNA-Represented RNs and Case Managers without Following Its Local Rules or PERB Regulations ...........................................................21
B. Injunctive Relief Is Necessary And Proper. ................................................. 22
1. Absent Injunctive Relief the MMBA’s Purposes will Be Frustrated .......23 2. Absent Injunctive Relief the Efficacy of a Board Final Order will Be
Nullified ...................................................................................................24 3. Absent Injunctive Relief the Board’s Administrative Procedures will
Be Rendered Meaningless .......................................................................25
V. CONCLUSION ...................................................................................................... 25
CNA’s Request for Injunctive Relief
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TABLE OF AUTHORITIES
Cases
Capistrano USD (2015) PERB Decision No. 2240 ........................................................................................ 6 Children’s Hosp. (1993) 312 NLRB 920 ................................................................................................ 12, 13 City of Fremont (2013) PERB Order No. Ad-403-M .................................................................................... 5 City of Fremont (2013) PERB Order No. IR-57-M .................................................... 5, 17, 21, 22, 23, 24, 25 City of Parlier (2015) PERB Decision No. 2318-M ................................................................................. 17 Community Hosp’s of Central California (2001) 335 NLRB 1318 ................................................................................................ 9, 13 Community Hosp’s of Central California (2001) 335 F.3d 1079 ........................................................................................9, 10, 11, 15 County of Monterey (2004) PERB Decision No. 1663-M ................................................................................. 21 County of San Bernardino (2018) PERB Decision No. 2556-M ................................................................................... 6 County of Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No. 2113-M ................................................................................. 17 County Sanitation District No. 2 v. Los Angeles Employees’ Ass’n (1985) 38 Cal.3d 564 .......................................................................................................... 6 Deaconess Med. Ctr. (1994) 314 NLRB 677 .......................................................................................... 11, 12, 15 Dean Transp. Inc. (2007) 350 NLRB 48 ........................................................................................................ 13 Dunbar v. Onyx Precision Servs. (W.D.N.Y. 2000) 129 F. Supp 2d 230 ................................................................................ 7
CNA’s Request for Injunctive Relief
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E.I. DuPont de Nemours (2004) 341 NLRB 607 .................................................................................................. 6, 11 Fairfield-Suissun USD (1083) PERB Decision No. 370 ........................................................................................ 19 Fall River Dyeing & Finishing Corp. v. NLRB 482 U.S. 27 (1987) ................................................................................................... 5, 9, 16 Heritage Park Health Care Ctr. (1997) 324 NLRB 447 ...................................................................................................... 10 Int’l Bhd. Of Elec. Workers v. City of Gridley (1983) 34 Cal.3d 191 ........................................................................................................ 17 Kings County Office of Educ. (1990) PERB Decision No. 801 ........................................................................................ 19 Lammert Indust. V. NLRB (7h Cir. 1978) 578 F.2d 1223 ............................................................................................ 15 NLRB v. Burns Int’l Security Services 406 U.S. 272 (1972) ........................................................................................................... 5 NLRB v. Winco Petrol. Co. (8th Cir. 1982) 668 F.3d 973 ............................................................................................. 13 Oak Valley Hosp. Dist. (2018) PERB Decision No. 2583-M ............................................................................. 1, 17 PERB v. Modesto City School Dist. (1982) 136 Cal.App.3d 881 .......................................................................................... 5, 22 Regents of U.C. (1989) PERB Decision No. 722-H ...................................................................................... 6 Regents of U.C. (1994) PERB Decision No. 1039-H ........................................................................ 6, 15, 16 Regents of U.C. (1992) PERC Proposed Decision ¶23155 .......................................................................... 16 Santa Clarita Comm. Coll. Dist. (College of the Canyons) (2003) PERB Decision No. 1506 .......................................................................... 19, 20, 21
CNA’s Request for Injunctive Relief
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Scott v. Catholic Health W. South Bay (N.D. Cal. 2000) 2000 U.S. Lexis 11113 ................................................................ 9, 10, 22 Small v. Avanti Health Systems, LLP (9th Cir. 2011) 661 F.3d 1180 ........................................................................................... 22 State of California (Dept. of Personnel Admin.) (1989) PERB Decision No. 776-S .............................................................................. 19, 20 Teamsters Local 690 v. Spokane Airport Board (1980) PERC Decision 919................................................................................................. 7 Teamsters Local 764 v. Milton Borough Regional Sewer Authority (2003) 34 PPER P159 ......................................................................................................... 7 Trident Seafoods v. NLRB (D.C. Cir. 1996) 101 F.3d 111 .......................................................................................... 11 UGL-UNICCO Svc. Co. (2001) 357 NLRB 801 ...................................................................................................... 16 In Re Petition of United Faculty of Florida (2003) 2003 FL PERC Lexis 218........................................................................................ 7 Victor County Comm. Coll. Dist. (2003) PERB Decision No. 1543 ...................................................................................... 22 W. Contra Costa County Health Care Dist. (2011) PERB Decision No. 2164-M ................................................................................. 21 West Michigan Comm. Mental Health Sys. And Public Employees Union of Southwest Michigan, Local 586, SEIU (1997) 1997 MI ERC Lexis 33 ........................................................................................... 7
Count of Santa Clara, Code Chapter IV, §A25 .................................................................. 16 Other Authorities
California Nurses Association’s Objection to Debtors’1113 Motion, Docket No. 1269, Case 2:18-bk-20151, In Re Verity Health Sys. of California, Inc., et al. (Bankr. C.D. Cal. January 16, 2019) ................................................................................. 24
1 CNA’s Request for Injunctive Relief
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I. INTRODUCTION
The California Nurses Association (“CNA”) files this request for injunctive relief to
preserve the status quo ante by enjoining the County of Santa Clara (the “County”) from
withdrawing recognition of and refusing to bargain with CNA as the exclusive representative
of approximately 750 registered nurses (“RNs”) at two hospitals, O’Connor Hospital and
Saint Louise Regional Hospital (the “Purchased Hospitals”) it will acquire on or about March
1, 2019 as the result of a bankruptcy sale. CNA also files this request for injunctive relief to
prevent the County from recognizing the Registered Nurses Professional Association
(“RNPA”), a small unaffiliated union which only represents nurses employed by the County,
predominantly at a single hospital, and the County Employees Management Association
(“CEMA”) as the exclusive representatives of the nurses at the Purchased Hospitals. The
County’s illegal actions are precisely the type of wrongs for which injunctive relief exists
since the parties’ may not be returned to the status quo ante if the County is allowed to
persist in failing to recognize the 750 nurses’ chosen representative and forcing
representation upon them by a union they never chose and with whom they have no history.
PERB precedent is clear: An employer may only withdraw recognition of an
exclusive representative following a decertification election. (Oak Valley Hosp. Dist. (2018)
PERB Decision No. 2583-M.) In the present case, the County has taken the extraordinary
step of unilaterally recognizing RNPA and CEMA as the exclusive representative of CNA-
represented employees without even the semblance of a vote or any indication that CNA-
represented members at the Purchased Hospitals wish to leave their union. The County has
withdrawn recognition in defiance of the U.S. Supreme Court-approved successorship
doctrine, which PERB should apply. Moreover, the County has unlawfully added CNA-
represented nurses to the County RNPA unit despite its own Local Rules and PERB
Regulations that require proof of majority support of the added employees. The County’s
actions are designed to award exclusive representation of the currently CNA-represented
nurses at the Purchased Hospitals to its favored employee organizations without any evidence
of employee support for these organizations whatsoever, contrary to section 3502 of the
2 CNA’s Request for Injunctive Relief
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Meyers–Milias–Brown Act (MMBA) Gov’t Code § 3500 et seq. that guarantees public
employees the “right to form, join, and participate in the activities of employee organizations
of their own choosing.” (emphasis added.)
As discussed below, CNA is able to establish that there is reasonable cause to believe
that the County has committed unfair labor practices and that injunctive relief is necessary
and proper. Given that the County is set to take over operations at the Purchased Hospitals
by the end of next week and withdraw recognition of CNA, injunctive relief is just and proper
to prevent these egregious violations of the nurses’ fundamental rights to participate in the
activities of the employee organization of their own choosing. The nurses have already
survived a difficult and tumultuous bankruptcy process; their collective voice should not be
further ignored based on the County’s refusal to accept its obligations as a successor
employer and CNA as the exclusive representative of the nurses at the Purchased Hospitals.
(Intentionally Left Blank)
3 CNA’s Request for Injunctive Relief
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II. REQUEST FOR INJUNCTIVE RELIEF
Pursuant to section 3563(i) of the California Government Code and Article 5, section
32450, et. seq. of the Regulations of the Public Employment Relations Board, CNA hereby
requests that the Public Employment Relations Board (“PERB”) seek a court order enjoining
the County from withdrawing recognition of CNA as the exclusive representative of the
registered nurses working at the Purchased Hospitals, upon the closing of the sale of these
hospitals from Verity Health Systems of California, Inc., to the County; and (2) from
awarding RNPA and CEMA recognition as the exclusive representative of these employees.
CNA also requests that PERB seek a court order requiring the County to maintain the status
quo ante by recognizing CNA as the exclusive representative of the registered nurses,
including nurse case managers in its current bargaining units at the Purchased Hospitals until
the underlying unfair practice is resolved.
III. SUMMARY OF RELEVANT FACTS1
For decades CNA has represented approximately 750 registered nurses
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1 For a comprehensive review of the facts surrounding this request for injunctive relief and the evidence supporting them please refer to the facts section of the underlying UPC Charge SF-CE-1648-M. A copy of the UPC has been filed concurrently with this request for injunctive relief pursuant to 8 Cal. Code Reg. § 32450.
at the
Purchased Hospitals. In 2018, Verity Health Systems of California, Inc. (“Verity”) as the
current owner and operator, chose to put these hospitals into bankruptcy and sell them as
going concerns in a bankruptcy auction. The County was ultimately the only bidder in the
bankruptcy auction and the bankruptcy court approved the sale of these facilities to it for
approximately $235 million. (See Order Authorizing Sale, UPC SF-CE-1648-M [“UPC”], Ex.
1). The sale of the Purchased Hospitals to the County is expected to close on or about March
1, 2019.
2 This 750 figure consists of the 544 RNs and 10 case managers with registered-nurse
licenses in the CNA bargaining unit, and the 204 RNs and 10 case managers in the CNA bargaining unit at Saint Louise Hospital.
4 CNA’s Request for Injunctive Relief
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The Asset Purchase Agreement (“APA”) governing the sale requires the County to
hire substantially all of the current CNA-represented nurses to staff its nursing operations at
the Purchased Hospitals. (See UPC, Ex. 10). After the sale closing, the County will continue
to operate the hospitals as acute care facilities as the successor employer. (Id.)3
Since October of 2018, CNA has sought confirmation that after the sale closing date,
the County will recognize CNA as the exclusive representative of the nurses at the Purchased
Hospitals. (See Declaration of Andrew Prediletto In Support of CNA’s Request for Injunctive
Relief [“Prediletto Decl.”], ¶ 16). The County repeatedly failed to provide such
confirmation. On or about January 25 to February 5, 2019, the County mailed employment
offer letters to current CNA-represented RNs at the Purchased Hospitals and informed them
that RNPA and CEMA would be their exclusive representatives respectively. (See Prediletto
Decl., ¶¶ 19&22). In response, on or about February 11, CNA members authorized a strike at
the Purchased Hospitals over the County’s failure to recognize CNA as their representative,
along with concerns over the diminished pay and benefits they would receive under the RNPA
and CEMA contracts compared to their current level of compensation under the CNA contract
as well as patient care and service concerns. (See Prediletto Decl., ¶33)
IV. ARGUMENT
PERB should grant CNA’s request for injunctive relief to prevent the County from
irreparably violating the rights of the nurses at the Purchased Hospitals to be represented by
the union of their choosing. Both conditions for injunctive relief are met in the instant case
since: (1) there is reasonable cause to believe an unfair practice has been committed given that
CNA is the appropriate representative of these employees under the successor doctrine; and
(2) that the injunctive relief is just and proper given that this charge involves a matter for
which injunctive relief is frequently sought, namely the failure to recognize an exclusive
3 See Exhibit 1 to this request “Santa Clara County buys two financially struggling hospitals for $235 million” Mercury News, December 10, 2018, downloaded on February 4, 2019 at https://www.mercurynews.com/2018/12/10/santa-clara-county-acquires-two-hospitals-winning-auction-by-default.
5 CNA’s Request for Injunctive Relief
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representative. (Public Employment Relations Bd. v. Modesto City Schools Distr. (1982) 136
Cal. App. 3d 881, 895 (Modesto City); City of Fremont (2013) PERB Order No. Ad-403-M.)
A. There Is Reasonable Cause To Believe That The County Has Committed Unfair Labor Practices, Warranting Injunctive Relief.
Injunctive relief is warranted because there is reasonable cause to believe the County
committed unfair labor practices (“ULPs”) by: (1) refusing to recognize and bargain with
CNA as the exclusive representative of RNs and case managers at the Purchased Hospitals,
(2) unreasonably applying its Local Rules to accrete CNA-represented RNs into the RNPA
unit without proof of majority support, and (3) providing unlawful assistance to RNPA and
CEMA.
1. Reasonable Cause exists that the County Violated the MMBA by Failing to Recognize and Bargain with CNA as the Exclusive Representative of the Nurses and Case Managers at the Purchased Hospitals.
As will be shown below, because the County is a successor employer to Verity, it
violated MMBA sections 3503, 3505, and 3506.5(d) by refusing to recognize CNA as the
exclusive representative of the Purchased Hospitals nurses and granted unlawful assistance to
RNPA by recognizing it instead. (See, e.g., City of Fremont (2013) PERB Order No. IR-57-
M, at pp. 22–23).
The successor employer doctrine first approved by the U.S. Supreme Court in NLRB v.
Burns International Security Services, 406 U.S. 272 (1972), and further clarified in Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987), requires a successor employer to
recognize and bargain with the union that represented the predecessor employer’s workforce.
Successor status is established if majority of the new employer’s employees in the relevant
bargaining unit are a “substantial and representative complement” of the predecessor
employer’s workforce and if there is a substantial continuity of operations between the two
employers. Id. An employer may defeat a showing of successor status by establishing that
after the acquisition, the predecessor’s unit is no longer appropriate and so may be accreted
into the successor’s larger unit representing the employees in question. However, there is a
6 CNA’s Request for Injunctive Relief
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strong presumption against accretion because it denies employees’ their basic rights to select
their own representative. (E.I. DuPont de Nemours (2004) 341 NLRB 607, 608.) Thus, the
NLRB has found such action is only appropriate when the predecessor’s employees “have
little or no separate identity and share an overwhelming community of interest with the
preexisting unit to which they are accreted.” (Id.)
While PERB has not yet had the opportunity to definitively state whether it will apply
NLRB successorship principles,4
Furthermore, while issues of successor employer status have not arisen in California
PERB decisions, other states’ public employee relations boards dealing with this issue have
PERB relies heavily on NLRB precedent especially in
situations such as the instant one when its own case law is lacking and both the public
employment statute at issue and the NLRA are silent regarding the question at hand. (See,
e.g., Regents of the University of California (1989) PERB Decision No. 722-H, at pp. 7–10)
[extensively citing NLRB decisions to find that the employer could not unilaterally transfer
alleged supervisors out of a CNA bargaining unit]; County of San Bernardino (2018) PERB
Decision No. 2556-M.) Indeed, the California Supreme Court has endorsed relying on NLRB
precedent to interpret the MMBA since the rights afforded to employees in both statutes are
nearly identical. (County Sanitation District No. 2 v. Los Angeles County Employees’ Assn
(1985) 38 Cal. 3d 564, 573 [“(T)he MMBA establishes a system of rights and protections for
public employees which closely mirrors those enjoyed by workers in the private sector.”]; see
also (Capistrano USD (2015) PERB Decision No. 2440, at p. 15.) [“[W]here the California
statutes were clearly intended to serve a similar purpose as their federal counterparts, [PERB]
may follow federal precedent, even in the absence of directly analogous language.”]) Thus,
NLRB case law provides relevant guidance in this case.
4 In Regents of the University of California (1994) PERB Decision No. 1039-H, PERB explicitly stated that it has not reached whether the successorship doctrine applies under California’s public-sector labor statutes. In Regents of the University of California, it assumed arguendo, without definitively adopting the successor doctrine, that it applied to the public sector. This case will be discussed further below. No other PERB cases have dealt with successor issues in “reverse privatization” also referred to as “municipalization.”
7 CNA’s Request for Injunctive Relief
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approvingly applied NLRB successor principles. (See, e.g., Teamsters Local 764 v. Milton
Employee Relations Board decision finding that the regional sewer authority was a successor
employer and dismissing employer’s exception that NLRA successorship should not apply in
the public sector]; In Re Petition of United Faculty of Florida to Amend Certification No. 502
(2003) 2003 FL PERC Lexis 218, *9-11 [Florida Public Employee Relations Commission
applying NLRB successorship principles over employer’s argument that only 20% of the
predecessor’s unit employees were members and so the union did not have majority status];
West Michigan Community Mental Health System and Public Employees Union of Southwest
Michigan, Local 586, SEIU (1997) 1997 MI ERC Lexis 33, *4 [Michigan Employment
Relations Commission decision finding successorship status over employer’s exception that
NLRA successorship principles should not apply to public employers]; Teamsters, Local 690
v. Spokane Airport Board (1980) Decision 919, *8-14 (PECB) [Washington Public
Employment Relations Commission decision finding the successor employer was bound to
bargain with union representing the predecessor’s employees under NLRA precedent despite
its belief that the union no longer had majority status].).
i. The County will hire a “Substantial and Representative Complement” of Verity’s workforce.
The first prong of the successor test is established if a “majority of the new employer’s
workforce, in an appropriate unit, consists of the predecessor’s employees when the new
employer has reached a substantial and representative complement.” (Dunbar v. Onyx
Precision Servs. (W.D.N.Y. 2000) 129 F. Supp. 2d 230, 235 [citing Fall River Dying, supra,
482 U.S. at 43].) As applied to the instant situation, because the County has agreed to hire
“substantially all” of the CNA-represented nurses at the Purchased Hospitals, CNA can easily
prove that the County has hired a majority of the current CNA unit to staff its operations at
these facilities. Specifically, the Asset Purchase Agreement between the County and Verity
establishes that:
5.3.1 Subject to Purchaser’s standard hiring practices (including, but not limited to, those practices and procedures), Purchaser
8 CNA’s Request for Injunctive Relief
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agrees to offer provisional employment, effective as of the Effective Time, to substantially all employees of Hospital Sellers who are listed on Schedule 5.3.1 who are actively employed and in good standing with a Hospital Seller as of Closing (the “Seller Employees”), in County positions consistent with those positions provided by the Hospital Sellers as of Closing; provided, however, (a) Seller Employees must meet the minimum qualifications for the specific position offered, and (b) standard Purchaser pre-employment screenings will be performed on all Seller Employees as a condition to employment with Purchaser. Any of the Seller Employees who accept a provisional offer of employment with Purchaser as of or after the Effective Time shall be referred to in this Agreement as the “Hired Employees.” Purchaser’s labor contracts with its employee labor organizations may require the Purchaser to make available and/or offer current Purchaser employees the opportunity to transfer to a comparable position at one of the Hospitals. Once this process is complete, if required, Purchaser will afford Hired Employees the opportunity to apply for permanent-track positions with Purchaser. [emphasis added].
(See Exhibit 10 to UPC SF-CE-1648-M, at pp. 41–42.) While Schedule 5.3.1 was not
publically submitted to the bankruptcy court, it is undisputed that the CNA-represented
nurses at the Purchased Hospitals were included on such schedule. Additionally, while
some of the CNA nurses may not accept the County’s offer of employment, in order to
lose its majority status over 300 of these nurses would need to decline the County’s offer
given that the bargaining unit is approximately 750 registered nurses. Given this unlikely
outcome, the CNA nurses will clearly constitute a majority of registered nurses at the
Purchased Hospitals.
ii. There will be “Substantial Continuity of Operations” between Verity’s operations of the purchased Hospitals and the County’s operations.
The factors the NLRB uses to determine whether substantial continuity exists between
the two operations are: “whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process,
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produces the same products, and basically has the same body of customers.”
Fall River Dyeing, 482 U.S. at 43. Under these factors, because the County will
operate the Purchased Hospitals with the same departments, presumably using the
same equipment and serve the same community there will be a substantial
continuity of operations between the two employers. Presumably, to ensure a
smooth transition the County will hire several of the day-to-day nurse supervisors
previously employed by Verity. In any event, a change in supervisors is not
enough to defeat the continuity prong of the successorship test. (Community
Hospitals of Central California (“Community Hospitals”) (2001) 335 NLRB
1318, 1332, enf’d in pertinent part (D.C. Cir. 2003) 335 F.3d 1079 [citing Sierra
Reality Corp. (1995) 317 NLRB 832, 835 for the proposition that hiring new
supervisors will still subject an employer to successorship if the other factors are
met]). Additionally, the fact that the hospitals would convert from private to
public entities does not affect the continuity prong of the successorship test.
(Community Hospitals, supra, 335 F.3d at 1084.)
Furthermore, in 2000, the CNA nurses at Saint Louise Regional Hospital found
themselves in a nearly identical situation to the instant one when Catholic Healthcare West
(“CHW”), which later became Daughters of Charity and was the predecessor to Verity,
purchased South Valley Hospital (located in Gilroy) from Healthcare Corporation of
America/Columbia and consolidated it with its existing operation, Saint Louise Hospital
(located in Morgan Hill). This consolidation created the current Saint Louise Regional
Hospital in Gilroy. Catholic Healthcare West refused to recognize CNA and so the NLRB
sought a preliminary injunction in federal district court on CNA’s behalf. (Scott v. Catholic
Health W. South Bay (N.D. Cal. 2000) 2000 U.S. Dist. LEXIS 11113.) In granting the
NLRB’s request for an injunction, the court found that the there was a substantial continuity
of operations under what are essentially the same facts as the instant situation:
Evaluation of the above factors strongly supports a finding of substantial continuity. First, the business of both hospitals is
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essentially the same. Like South Valley, the consolidated St. Louise Regional is an acute care hospital serving patients in the South Santa Clara County. Second, the employees are doing the same jobs, in the same conditions under many of the same supervisors. The South Valley nurses who joined the staff at St. Louise Regional continue to do the work of a registered nurse. Furthermore, since CHW assumed the Gilroy site for the consolidated hospital, the former South Valley nurses continued to work at the same facility. The original patient care units at the facility remain intact, and no additional units have been created.
(Id. at *10.) The court then explained that even though the upper management of the new
Saint Louise Regional Hospital was predominately CHW employees and only two of the
six nursing supervisors were former South Valley employees, there was substantial
continuity. The court based its conclusion on the finding that “from the perspective of
former South Valley nurses employed at the consolidated facility, their position remained
essentially unaltered.” (Id.) Thus, just as the South Valley nurses had essentially the
same position after the acquisition by the CHW, the Purchased Hospitals’ nurses will also
perform basically the same job functions for the same population.
iii. The Unit of RNs at the purchased Hospitals will remain separate and appropriate after the sale.
In a successor situation, the issue is not whether a new combined unit of the RNPA-
represented and Purchased Hospital nurses would be appropriate, but whether the original unit
remains a separate and appropriate unit after the sale. (See, e.g. Heritage Park Health Care
Center (1997) 324 NLRB 447, 451 enfd. (2d Cir. 1998) 159 F.3d 1346.) Two presumptions
support finding that the nurses at the Purchased Hospitals would be an appropriate bargaining
unit after the County takes ownership and so may not be accreted into the County’s RNPA
unit. First, there is a presumption that “a group of employees with a significant history of
representation by a particular union” are an appropriate bargaining unit. (Community Hosps.,
supra, 335 F.3d at 1085.) In the instant situation the nurses at the Purchased Hospitals have a
long bargaining history of representation by CNA. As noted above, the Saint Louise Regional
Hospital nurses have had CNA as their representative through many employers spanning
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decades and the O’Connor Hospital nurses have had CNA as their representative since at least
2002.5
The Board favors the maintenance of these historical units unless “compelling
circumstances” exist such as that the units are unworkable or will cause discord. (Trident
Seafoods v. NLRB (D.C. Cir. 1996) 101 F.3d 111, 118.) There is no indication that an RN-
only unit at the Purchased Hospitals would be disharmonious or difficult to manage given the
similarity of working conditions and job functions. Additionally, it is inconsequential that
the Saint Louise and O’Connor nurses are currently part of a larger bargaining unit with Seton
and St. Vincent since a subset of a prior larger historic unit is still appropriate. (Community
Hosps., supra, 335 F.3d at 1085.)
(See, e.g., Deaconess Medical Center (1994) 314 NLRB 677, 680 [“The bargaining
history of the situation creates a strong bias against accretion, as the Union was solidly
established as a representative of the [Union] for a goodly number of years.”].)
Secondly, a “single facility unit” of nurses within a larger healthcare system is
presumptively appropriate. (Deaconess Medical Center, supra 314 N.L.R.B. at 680.) These
presumptions may be overridden by accretion factors such as “geographic proximity,
employee interchange and transfer, functional integration, administrative centralization,
common supervision and bargaining history” between the larger hospital system and the
single facility. (Community Hosps., supra, 335 F.3d at 1085.) The most important factors to
rebut the presumption of appropriateness are interchange and common day-to-day
supervision. (E.I. DuPont, supra, 341 NLRB at 608.) With respect to interchange, it does not
appear that the County intends to have the nurses float between its only currently held
hospital, Santa Clara Valley Medical Center (“SCVMC”), and the Purchased Hospitals as
evidenced by the fact that the nurses’ offer letters assign them to a specific hospital. (See
UPC, Exs. 12, 13). Thus, very little interchange is expected. Because significant interchange
is required to override this presumption that single facilities are appropriate, this factor leans
against accretion. (Deaconess Medical Center, supra, 314 NLRB at 681 [“The factor of
5 See 2002-2005 CBA between O’Connor Hospital and CNA, Exhibit A to the Prediletto Declaration.
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interchange as an element of an accretion contention cannot be artificial, but instead must
represent the ordinary assignment rhythms of a dual location business.”].) Furthermore, given
the fact that Saint Louise Regional Hospital in Gilroy is 39 miles from the County’s only
currently held hospital, Santa Clara Valley Medical Center, interchange does not seem likely.
O’Connor Hospital and Santa Clara Valley Medical Center are closer, but again, no regular
interchange has been discussed with the nurses.
Furthermore, the County has announced no plans that it intends to have the nurses’
supervisors float between facilities and extended offer letters to the current nurse managers
and other immediate supervisors at will not have common day-to-day supervision with the
RNPA unit. Hence, it is highly unlikely that the RNPA nurses will have the same supervision
as the nurses at the Purchased Hospitals.
Moreover, the factors regarding functional integration and administrative
centralization take less priority in the healthcare context when both the purchaser’s existing
facilities and newly acquired operations will remain “full service acute care facilities” after
the sale as is the case in the instant situation. (Children’s Hospital (1993) 312 NLRB 920,
929.) In Children’s Hospital the NLRB further explained:
Accordingly, notwithstanding factors indicating centralization and standardization subsequent to the merger, noting that, as each campus of Respondent remained a full-service acute care medical facility and as both continue to offer largely duplicative health care, the probability of a disruption of services caused by labor problems involving the single facility registered nurses unit is nil, that CNA and Children’s Hospital had a longstanding collective-bargaining history, in a unit encompassing only its registered nurses, dating back to 1947, that there is little employee interchange between the California and Pacific campuses, and that the merger brought about no change in the daily work activities of the former Children’s Hospital registered nurses, who continue to perform the same jobs and to have the same immediate supervision and utilize the same California campus facilities as before the merger, I believe the record, as a whole, warrants the conclusions that the Board’s presumption of single-facility appropriateness has not been rebutted herein and that Respondent’s staff registered nurses at its California campus (the former Children’s Hospital registered nurses) remained an appropriate unit.
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Id. Relying on its decision in Children’s Hospitals, in Community Hospitals, the NLRB
also found that despite centralized management and labor relations over all segments of the
successor’s hospital system including “nursing, janitorial, maintenance and clericals,” that the
purchasing employer could not rebut the presumption that the single-facility remained an
appropriate unit after the sale. (335 NLRB at 1336 [“However, I note that the organizational
structure of the employer’s operation is not controlling. . . the Board must all assure to
employees the fullest freedom in exercising the rights guaranteed by the Act.”].)
Additionally, the NLRB found that a separate unit of the predecessor’s nurses was appropriate
because a work stoppage at the predecessor’s facility would not impact the successor’s other
facilities. (Id. at 1136 [“On the contrary, FCH and CCH [employer’s prior facilities] are fully
equipped, just as they were before the transaction, to function independently by making only
minor adjustments in staffing, scheduling, and other facts of their operation.”].) Thus, even
though the County may centralize its labor relations, given the separate bargaining history of
the Purchased Hospitals’ nurses it cannot rebut the presumption that a separate unit for the
Purchased Hospitals is appropriate.
Furthermore, the fact that nurses at other County facilities are represented by separate
unions, namely RNPA, CEMA and SEIU Local 521 does not change the analysis. (Dean
Transp. Inc. (2007) 350 NLRB 48, 59 [successor employer was required to recognize a single-
facility unit of bus drivers despite employer’s argument that a different union already
established represented drivers at its other facilities and so should represent the predecessor’s
employees].) Nor it is relevant that the hospital is acquiring a two-hospital unit instead of
single facility. (NLRB v. Winco Petroleum Co. (8th Cir. 1982) 668 F.3d 973 [finding that
employer who purchased three gas stations represented by a single union was a successor
because the acquired gas stations were separate and distinct from the employer’s existing
stations].)
Nor does the result in Regents of the University of the California (1994) PERB
Decision No. 1039-H compel a different finding. In this case, PERB found that because
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HEERA section 3379(e) requires that the University of California only recognize large PERB-
approved, system-wide bargaining units it could not recognize a separate patient care
technical unit for the employees at a single-facility because such a unit would be
inappropriate. (Id.) Under the MMBA, the County has no such legislative constraints in the
amount of bargaining units it may recognize. In contrast with the discrete system-wide units
PERB established for the University of California system through HEERA, the County’s
creation of classifications appears to have more to do with historical nuance, than an attempt
to limit the proliferation of bargaining units. For example, Public Health Nurses are
represented by SEIU Local 521,6 Case Manager Nurses are represented by CEMA7 and other
types of registered nurses are represented by RNPA. Similarly, Public Health Physicians are
represented by Union of American Physicians and Dentists8 and Staff Physicians are
represented by the Valley Physicians Group.9
6 See MOA between the County of Santa Clara and SEIU Local 521, Appendix C, p. 187 which describes the public health nursing unit. The MOA is available online at:
These divisions evidence that the County’s
practice is to recognize many bargaining units as a means to promote stable labor relations
and allow for free choice in employees’ selection of representatives. Thus, a separate
7 See MOA between the County of Santa Clara and the County Employees Management Association, p.5 which lists Patient Services Case Coordinators as nurses covered in the CEMA unit. The MOA is available at: https://www.sccgov.org/sites/esa/labor/Documents/mou-moa/CEMA-2013-final-draft-101013-km.pdf
8 See MOA between the County of Santa Clara and the Union of American Physicians and Dentists, p. 2 which includes Public Health Physician III as a classification included in the unit. The MOA is available at: https://www.sccgov.org/sites/esa/labor/Documents/Union-American-Physicians-Desntists-UAPD-070714-103016.pdf
9 See MOA between the County of Santa Clara and the Valley Physicians Group, p.1
which includes the classification of Physician as part of the unit. The MOA is available at: https://www.sccgov.org/sites/esa/labor/Documents/mou-moa/valley-physicians-group-VPG-summary-of-changes050916-051621.pdf
bargaining unit of nurses at the Purchased Hospitals would be in line with its past practice and
appropriate.
Furthermore, the dicta in Regents of the University of California (PERB Decision No.
1039-H) which reasoned that accretion of the single-facility patient-tech care unit was
appropriate is completely inapplicable to the instant situation and incompatible with more
recent NLRB case law which has a strong presumption against accreting historical single-
facility healthcare units.10 (See, e.g. Community Hosps., supra, 335 F.3d at 1085.) First, the case
PERB relied upon to find that accretion was appropriate, Lammert Industries v. NLRB (7th Cir.
1978) 578 F.2d 1223, 1226, involved the accretion of nine previously unrepresented
10 In any event, as detailed below, PERB applies its unit-modification procedures for accretion cases, making accretion without proof of majority support inappropriate.
employees into a larger represented-unit when the employer consolidated two manufacturing
facilities into a single workshop. Thus, Lammert Industries is wholly inapplicable to cases
under the successor doctrine since it did not involve the accretion of previously represented
employees. Additionally, it did not involve employees at separate healthcare facilities with
separate bargaining histories. Accordingly, in relying on Lammert Industries, the factors that
PERB evaluated did not heavily weigh a separate bargaining history against a finding of
accretion or focus on common day-to-day supervision and significant interchange as the main
factors which would overcome the presumption that single-facility units are appropriate. (See,
e.g., Deaconess Medical Center, supra, 314 NLRB at 680.) Instead, in Regents of the
University of California, PERB evaluated a host of basic community of interest factors (e.g.,
similar skill sets, centralized management) equally which is wholly inappropriate for a case in
which there is a union already representing the healthcare employees in question at a separate
facility. Furthermore, its interpretation of interchange focused on whether the employees’
skills were interchangeable from one facility to the next, not on whether the employees
actually and routinely interchanged with each other at separate facilities as required by the
NLRB. Id. at 681.
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Additionally, unlike the factual situation in Regents of the University of California, the
number of nurses at the Purchased Hospitals is very substantial compared to the overall
RNPA unit. In Regents of the University of California, 5,268 employees composed the
established unit to which 262 Mount Zion employees were accreted. (Proposed Decision
(1992) 16 P.E.R.C. ¶ 23155.) Hence, the employees to be accreted represented less than five
percent of the established unit. In the instant matter, on the other hand, the County would add
728 CNA-represented RNs to the County RNPA unit that consists of between 1,500 and 2,300
nurses.11
Finally, the County’s Ordinance Code provisions, A25, Chapter IV, regarding how
labor unions should petition to recognize existing County employees who have not already
selected their representatives are also completely irrelevant to the instant situation because the
nurses at the Purchased Hospitals have already chosen CNA as their exclusive representative.
In contrast to the situation contemplated by the County’s Ordinance in which current
employees seek representation by a union through an election or card-check, a successor
employer cannot demand that the new employees have an election to “re-vote” in the union or
force the union to make any showing of support. (Fall River Dyeing, supra, 482 U.S. at 39
[“(D)uring this unsettling transition period, the union needs presumptions of majority status to
which it is entitled to safeguard its members’ rights and to develop a relationship with the
successor.”].) The NLRA unit determination and election rules simply do not apply since the
successor has an obligation to recognize the union. (Id.) Furthermore, another union cannot
challenge the validity of the successor union for a period of six months to a year under what is
called the “successor” bar. (UGL-UNICCO Service Co. (2011) 357 NLRB 801, 809.) Hence,
As explained below, this amounts to between 32 and 49 percent of the established
County RNPA unit, which would be a substantial structural change to the RNPA unit, calling
into question RNPA’s majority status in stark contrast to the small percentage of employees
accreted into the larger systemwide unit in Regents of the University of California.
11 CNA has submitted a California Public Records Act request to the County to determine the number of current RNPA unit members. CNA uses the 2,300 estimate because that was the number asserted in RNPA’s Application for Joinder to PERB on February 15, 2019 in the instant UPC.
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just as the NLRB’s election rules are inapplicable in a successor situation, so are the County’s
Ordinance provisions.
2. Injunctive Relief Is Appropriate Because there Is Reasonable cause to Believe that the County Committed an Unfair Labor Practice by Processing a Unit Modification of the County RNPA Unit Without a Petition and Proof of Majority Support.
There is reasonable cause to believe that the County impermissibly modified the
County RNPA unit by adding the CNA-represented RNs at the Purchased Hospitals to it
without a petition according to its Local Rules and a showing of proof of majority support,
which had the effect of withdrawing recognition of CNA as the exclusive representative. An
employer may only withdraw recognition of an exclusive representative after a decertification
election. (Oak Valley Hosp. Dist. (2018) PERB Decision No. 2583-M.) PERB will grant
requests to seek injunctive relief when an employer disregards its local rules and improperly
processes representation petitions that have the effect of withdrawing recognition of an
exclusive representative. (City of Fremont, supra, PERB Order IR-57-M, at 19–20.)
MMBA employers that adopt local rules must ensure that they are reasonable and
applied consistently with the purposes and provisions of the MMBA. (Gov’t Code § 3507;
City of Parlier (2015) PERB Decision No. 2318-M.) It is an unfair labor practice when an
employer “disregard[s] its own local rules by processing an improperly-filed and incomplete
[representation] petition.” (See id. at 20.) PERB will also find an unfair labor practice when
an employer applies its local rules inconsistently with the employees’ statutory right to
participate in the organization of their own choosing. (Int’l Bhd. of Electrical Workers v. City
of Gridley (1983) 34 Cal. 3d 191, 198.) When an employer’s local rules are silent on a
particular representation issue, PERB will apply PERB Regulations. (County of
Siskiyou/Siskiyou County Superior Court (2010) PERB Decision No. 2113-M.)
For unit modifications, the County Local Rules provide that a petition be filed:
between 150 and 120 days prior to the termination of an existing memorandum of understanding between the Board of Supervisors and the recognized employee organization which represents the unit containing the classes in the petition. Where the classes in the petition are included in more than one unit, the
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unit with the memorandum of understanding with the latest termination date will determine the submission period for the petition. . . . All12
unit modification petitions filed pursuant to this section must be accompanied by proof of employee approval equal to greater than 50 percent of the employees covered by the petition.
(See UPC, Ex. 5, at p. 54.)
There is reasonable cause to believe that the County committed unfair labor practices
because it modified the RNPA unit inconsistent with its Local Rules, denying CNA-
represented RNs their statutory right to participate in the activities of the employee
organization of their own choosing. First, there was no petition for a unit modification,
evidenced by RNPA’s, and seemingly the County’s argument that that this is a matter of
simple accretion. (RNPA App. for Joinder, at p. 2.) Even if there were a valid petition to add
the CNA-represented RNs to the RNPA unit, such a petition is barred until the window opens
on May 23, 2019.13
12 PERB Regulations only require a showing of proof of majority support of the “persons employed in the classifications or positions to be added” when the “addition of classifications or positions to an established unit . . . would increase the size of the established unit by ten percent or more.” (PERB Reg. 61450(e).)
Most importantly, there is no showing of proof of majority support
among the CNA-represented RNs to be added to the RNPA unit. The County’s Local Rules
require all unit modifications to be “accompanied by proof of employee approval equal to
greater than 50 percent of the employees covered by the petition,” which the County does not
have. Proof of majority support is also required under the more lenient PERB Regulations
since there is no dispute that the addition of the CNA-represented RNs will increase the size
of the County-wide unit by greater than ten percent. Accordingly, there is reasonable cause to
believe that the County committed unfair labor practices by disregarding its Local Rules and
processing a unit modification that is contrary to the will of the majority of the covered
employees.
13The current RNPA contract will expire on October 20, 2019. (See UPC, Ex. 6.)
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Proof of majority support is necessary because the addition of the CNA-represented
RNs would dramatically increase the size of the RNPA unit, calling into question whether
RNPA maintains majority support. PERB applies its unit-modification procedures for cases
of accretion. (See, e.g., Kings County Office of Educ. (1990) PERB Decision No. 801; State
of California (Department of Personnel Administration) (1989) PERB Decision No. 776-S;
Fairfield-Suisun USD (1983) PERB Decision No. 370.) PERB law makes clear that an
employer violates the labor statute when it modifies a unit without a showing of majority
support when the added positions increase the size of the unit by greater than ten percent.
(PERB Reg. 61450(e); Department of Personnel Administration, supra, PERB Decision No.
776-S.) A unit-modification agreement will not protect an employer from ULP liability when
the size of the added positions substantially increases the size of the unit. (Santa Clarita
Community Coll. Dist. (College of the Canyons) (2003) PERB Decision No. 1506.)
Even in accretion cases, PERB requires a showing of proof of majority support when
the added positions will increase the unit size by greater than ten percent. (PERB Reg.
61450(e); Department of Personnel Administration, supra, PERB Decision No. 776-S.)
Before PERB adopted Regulation 61450, it found that an increase of unit size by twenty-two
percent required a showing of proof of majority support. (Department of Personnel
Administration, supra, PERB Decision No. 776-S.) In Department of Personnel
Administration, the exclusive representative of a unit of employees sought to accrete 2,000
employees into an established unit of 9,000. (Id. at 2.) The union sought accretion because of
“changed circumstances” in that the 2,000 employees no longer performed supervisory duties,
making it appropriate to add them to the established unit. (Id.) The union did not submit
proof of majority support of the 2,000 employees in its petition to accrete these positions.
(Id.) PERB found that such proof was necessary because the increase in size of twenty-two
percent was “substantial and could reasonably be expected to change the structure of the unit
added thereto.” (Id. at 4.) As the concurrence explained, the purpose of such a showing is to
“ensur[e] that employee rights are protected.” (Id. at 6) (Camilli, concurring.) Since the
ruling in Department of Personnel Administration, PERB has promulgated rules lowering the
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threshold at which a showing of proof is required, and the Local Rules go much further by
requiring such proof for all unit modifications.
In the instant matter, proof of majority support is necessary even under RNPA’s
asserted figure of the established unit. The County RNPA unit is between 1,500 and 2,300
employees. The County is attempting to accrete approximately 728 CNA-represented RNs
from the Purchased Hospitals, representing between 32 and 49 percent of the established
County RNPA unit. In other words, even on the lower end, the County’s unit modification
that increases the RNPA unit by 32 percent is “substantial, and could reasonably be expected
to change the structure of the unit if added thereto.” According to Department of
Administration, such an accretion requires proof of majority support of the CNA-represented
RNs that they choose to accrete to the RNPA unit. The County’s failure to require such proof
of support before modifying the unit constitutes an unfair labor practice, which compels
injunctive relief in order to protect employees’ statutory right to participate in the employee
organizations of their choosing.
As detailed above, there is reasonable cause to believe that the County committed an
unfair labor practice by failing to require proof of majority support, and it makes no difference
whether it had an agreement with RNPA to include the CNA-represented RNs. “[V]oluntary
extension of exclusive representative status to unrepresented employees requires evidence that
unrepresented employees support such representation.” (College of the Canyons, supra,
PERB Decision No. 1506, at p. 26 [citing Safeway Stores, Inc. (1981) 256 NLRB. 917].) In
College of the Canyons, the employer and a union representing an established unit entered
into a unit-modification agreement that added new classifications that would have tripled the
size of the established unit. (Id.) While College of Canyons is a case involving ULPs over an
employer’s unlawful assistance to an employee organization, it is instructive as to when proof
of majority support of the accreted employees is necessary. PERB stressed that the unit-
modification rules must be read in harmony with employees’ statutory right to “participate in
the activities of employee organizations of their own choosing.” (Id. at 19 [citing Gov’t Code
§ 3543] [emphasis in original].) In other words, proof of majority support trumps PERB
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Regulations or Local Rules that allow for unit modification by agreement when the addition
would make a substantial change to the structure of the unit. (Id.) As explained above, PERB
has recognized that a ten-percent addition to an established unit is a substantial change
necessitating proof of majority support. Accordingly, the accretion of the CNA-represented
RNs amounts to a substantial change, which requires proof of majority support even in the
face of any agreement between the County and RNPA.
3. There Is Reasonable cause to believe that the County has Unlawfully assisted RNPA and CEMA through, inter alia, Accreting CNA-Represented RNs and Case Managers without Following Its Local Rules or PERB Regulations.
Injunctive relief is necessary because there is reasonable cause to believe that the
County committed unfair labor practices by providing unlawful assistance to RNPA and
CEMA. It is an unfair labor practice for an employer “recognize one of two competing unions
while the employees’ choice between them is demonstrably in doubt.” (College of the
Canyons, supra, PERB Decision No. 1506.) The employer must maintain “strict neutrality”
between the rival organizations. (Id. at 23 [quoting Santa Monica Community Coll. Dist.
(1979) PERB Decision No. 103]; County of Monterey (2004) PERB Decision No. 1663-M;
City of Fremont, supra, PERB Order No. IR-57-M.) To determine unlawful assistance, PERB
evaluates whether the employer’s conduct tends to influence the choice between employee
organizations. (W. Contra Costa County Health Care Dist. (2011) PERB Decision No. 2164-
M.) PERB will find unlawful assistance when an employer deviates from representational
rules to recognize one organization over the other, namely when the employer fails to require
proof of majority support of accreted employees into an established unit. (College of
Canyons, supra, PERB Decision No. 1506, at pp. 19–26.) What is more, PERB has found
reasonable cause in the injunctive-relief context that an employer “violated its duty of strict
neutrality” when it “disregarded its own local rules by processing an improperly-filed and
incomplete [representation] petition.” (City of Fremont, supra, PERB Order No. IR-57-M.)
There is reasonable cause to believe that the County has nakedly favored RNPA and
CEMA over CNA, going so far as to recognize them outright as the representative of CNA-
22 CNA’s Request for Injunctive Relief
PERB Case No. SF-CE-1648-M
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represented RNs and case managers. As detailed above, the County has done this by
withdrawing recognition of CNA as the exclusive representative of the nurses at O’Connor
and Saint Louise Hospitals, disregarding its own local rules and PERB’s representation
regulations by improperly processing a unit modification during a closed period, without a
petition, and without a showing of proof majority support among the CNA-represented
employees. This conduct is in violation of its duty to maintain strict neutrality between CNA
and RNPA and CEMA. According to City of Fremont and established PERB precedent, there
is reasonable cause to believe that the County committed unfair labor practices, warranting
injunctive relief.
B. Injunctive Relief Is Necessary And Proper. In the context of failure to recognize employees’ chosen representative, injunctive
relief is “just and proper” under the standards laid out in Modesto City because the failure to
do so: (1) frustrates the purposes of the MMBA; (2) there is a “reasonable apprehension” that
the effect of a Board order will be nullified; and (3) the administrative process will be
rendered meaningless. (136 Cal. App. 3d at 890.) Indeed, the County’s unfair practice of
refusing to recognize CNA and instead recognizing RNPA represents a violation of one of the
most core rights of employees and if allowed to continue is impossible to undo. Thus, this
type of violation is perhaps one of the most obvious examples of cases for which PERB and
the NLRB seek injunctive relief from courts. (See, e.g., City of Fremont, supra, PERB Order
No. IR-57-M [granting request to petition for an injunction when the city improperly
processed a decertification petition and refused to recognize the incumbent union]; Victor
Valley Community College District (2003) PERB Decision No. 1543 [granting injunction
request when employer and union agreed to accrete part-time faculty into the full-time faculty
unit absent consent]; Small v. Avanti Health Systems, LLP (9th Cir. 2011) 661 F.3d 1180,
1185, 1191 [granting NLRB’s request for injunctive relief when purchaser of hospital in a
bankruptcy sale refused to recognize CNA as the exclusive representative]; Scott v. Catholic
Healthcare W. South Bay, (N.D. Cal. 2000) 2000 U.S. Dist. Lexis 11113 [granting NLRB’s
23 CNA’s Request for Injunctive Relief
PERB Case No. SF-CE-1648-M
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request for injunctive relief when purchasing employer failed to recognize CNA under the
successor doctrine].)
1. Absent Injunctive Relief the MMBA’s Purposes will Be Frustrated.
PERB reasoned in City of Fremont that in order to effectuate the purposes of the
MMBA, employees must have the right to select “their representative free of employer
interference” and the selected representative must have the right to engage the employer in
negotiations over wages, hours and employment terms and conditions.” (PERB Order No. IR-
57-M at p. 25). As was the case in City of Fremont and is the case in the instant situation, an
employer’s failure to recognize the selected union prevents it from performing any of its
representational functions. In fact, wages are significantly lower under RNPA’s contract.
(See Prediletto Decl. ¶ 21.) Thus, the refusal to recognize the employees’ chosen
representative “strikes at the heart of the MMBA’s collective bargaining regime by preventing
the employees’ chosen representative from working on their behalf.” (Id.)
The CNA-represented RNs at the Purchased Hospitals have consistently reiterated that
they want to be represented by CNA and not a union foisted upon them by the County. As
recently as February 11, the nurses authorized a strike of these hospitals because of the
County’s withdrawal of recognition of the exclusive representative of their own choosing in
favor of RNPA and CEMA. The frustration of the MMBA’s purpose is all the more prevalent
in the County’s refusal to recognize CNA given that now is the time to set the tone with the
County and negotiate the first contract. The employees at the Purchased Hospitals chose
CNA, a national union, to negotiate for better terms and conditions using their collective
power, which they do not believe RNPA and CEMA maintains. What is even more striking is
that RNPA has used a pleading as basic as its application for joinder to negatively criticize
CNA members’ efforts to obtain appropriate damages for the nurses in the Verity bankruptcy
case as “interfering.”14
14 CNA has repeatedly stated in its pleadings to the bankruptcy court that it did not seek to challenge the sale of the Purchased Hospitals to the County; however, it did seek damages from Verity’s bankruptcy estate due to the fact that the Verity breached the successor
The nurses at the Purchased Hospitals chose CNA as their exclusive
24 CNA’s Request for Injunctive Relief
PERB Case No. SF-CE-1648-M
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representative, and RNPA’s conduct thus far has shown that it does not represent their
interests to maintain their current level of benefits and wages. Thus, the purposes of the
MMBA will be frustrated if the County is allowed to withdraw recognition of CNA and
unilaterally recognize RNPA and CEMA as the exclusive representative of CNA-represented
employees at the Purchased Hospitals.
2. Absent Injunctive Relief the Efficacy of a Board Final Order will Be Nullified.
As PERB and the NLRB have long recognized, the failure to bargain implicit in an
employer’s refusal to recognize the selected representative “is likely to irreparably injure
union representation.” (City of Fremont, supra, PERB Order No. IR-57-M, p. 26 [citing
Avanti, 661 F.3d at 1191].) The factual pattern in City of Fremont is again analogous given
that the city in that case was negotiating a successor MOU with a representative the
employees did not choose. In holding that the efficacy of a final board order would be
nullified if this practice were allowed to persist, PERB found that “the Board would be unable
to provide the unit employees a remedy which compensates them from the delay in economic
or non-economic benefits the employees might have received were the City negotiating now
with SEIU [the appropriate union] for a successor MOU. (Id.) Additionally, PERB found that
it would be highly problematic to unwind a contract negotiated in the interim with the
incorrect union. (Id.) A make-whole remedy could not compensate the employees for the
non-economic benefits they would lose in the interim such as representation in grievance
processes by their selected union. (Id.) Finally, PERB reasoned that the selected union will
lose support as the case works its way through the administrative process and such damages
cannot be corrected through a board order. Id.
For all of the reasons PERB found that it could not grant satisfactory retroactive relief
to the charging party in City of Fremont for a withdrawal of recognition, PERB can not issue
clause of its contract by selling the Purchased Hospitals to an entity that wholly refused to assume the agreements. See, e.g., CNA’s Objection to Debtors’ 1113 Motion, Docket No. 1269, p. 24, Case 2:18-bk-20151-ER (Bankr. C.D. Cal. January 16, 2019).
25 CNA’s Request for Injunctive Relief
PERB Case No. SF-CE-1648-M
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an order granting appropriate relief to CNA absent an injunction. Specifically, a remedy for
the difference in wages and benefits CNA would have be able to negotiate versus what is
currently in the RNPA and CEMA contracts is extremely difficult to calculate even in
hindsight. It would also be an administrative disaster to unwind the RNPA and CEMA
contracts once they are applied to the Purchased Hospitals. Moreover, it is impossible to
know what harm the current CNA nurses will face if they are not represented in the grievance
process by CNA. Finally, CNA’s support will be undermined during the administrative
process as the nurses witness CNA unable to represent them in any capacity.
3. Absent Injunctive Relief the Board’s Administrative Procedures will Be Rendered Meaningless.
As stated by the Board in City of Fremont, PERB is the expert agency charged with
administering the MMBA and in this capacity has initial exclusive jurisdiction to determine if
an unfair practice has occurred and determine the appropriate remedy. (Id.) Given that a
Board order would be nullified unless injunctive relief is granted, it also follows that PERB’s
ability to adjudicate and remedy unfair labor practices would be severely compromised absent
such relief. Therefore, absent temporary relief to restore the status quo ante, PERB cannot
meaningfully correct the harm done to the CNA nurses due to the County’s failure to
recognize it while the County impermissibly recognizes and bargains with RNPA and CEMA.
V. CONCLUSION
Because there is reasonable cause to believe the County has committed unfair labor
practices and an injunction against the ongoing commission of such practices is just and
proper, CNA urgently requests that PERB request an injunction from superior court to enjoin
the County from refusing to recognize and bargain with CNA and its unlawful recognition of
RNPA and CEMA.
//
// // // //
Exhibit 1
Exhibit 1
2/4/2019 Santa Clara County buys hospitals for $235 million
Santa Clara County buys twoSanta Clara County buys twoSanta Clara County buys two�nancially struggling hospitals for�nancially struggling hospitals for�nancially struggling hospitals for$235 million$235 million$235 millionO’Connor in San Jose, St. Louise Regional in SouthO’Connor in San Jose, St. Louise Regional in SouthO’Connor in San Jose, St. Louise Regional in SouthCounty to relieve overcrowding at county-runCounty to relieve overcrowding at county-runCounty to relieve overcrowding at county-runValley Medical Center and expand public system’sValley Medical Center and expand public system’sValley Medical Center and expand public system’sreachreachreach
383838
The entrance facade of O’Connor Hospital in San Jose. (CourtesyThe entrance facade of O’Connor Hospital in San Jose. (CourtesyThe entrance facade of O’Connor Hospital in San Jose. (CourtesyO’Connor Hospital)O’Connor Hospital)O’Connor Hospital)
By By By TRACEY KAPLANTRACEY KAPLANTRACEY KAPLAN | | | [email protected]@[email protected] | Bay Area News Group | Bay Area News Group | Bay Area News GroupPUBLISHED: PUBLISHED: PUBLISHED: December 10, 2018 at 11:35 amDecember 10, 2018 at 11:35 amDecember 10, 2018 at 11:35 am | UPDATED: | UPDATED: | UPDATED: December 11, 2018 at 8:39 amDecember 11, 2018 at 8:39 amDecember 11, 2018 at 8:39 am
Santa Clara County has succeeded in buying two �nancially struggling hospitalsSanta Clara County has succeeded in buying two �nancially struggling hospitalsSanta Clara County has succeeded in buying two �nancially struggling hospitalsfor $235 million, the cornerstone of its plan to relieve overcrowding at thefor $235 million, the cornerstone of its plan to relieve overcrowding at thefor $235 million, the cornerstone of its plan to relieve overcrowding at thecounty-run Valley Medical Center and expand services to central San Jose andcounty-run Valley Medical Center and expand services to central San Jose andcounty-run Valley Medical Center and expand services to central San Jose andsouth county.south county.south county.
The purchase came after the county entered the only bid in Friday’s auction ofThe purchase came after the county entered the only bid in Friday’s auction ofThe purchase came after the county entered the only bid in Friday’s auction ofO’Connor Hospital in San Jose and St. Louise Regional Hospital in Gilroy,O’Connor Hospital in San Jose and St. Louise Regional Hospital in Gilroy,O’Connor Hospital in San Jose and St. Louise Regional Hospital in Gilroy,including the De Paul Health Center in Morgan Hill.including the De Paul Health Center in Morgan Hill.including the De Paul Health Center in Morgan Hill.
ADVERTISINGADVERTISINGADVERTISING
The county had offered to buy the group as part of a bankruptcy reorganizationThe county had offered to buy the group as part of a bankruptcy reorganizationThe county had offered to buy the group as part of a bankruptcy reorganizationby the hospitals’ parent company, Verity Health System of California. After aby the hospitals’ parent company, Verity Health System of California. After aby the hospitals’ parent company, Verity Health System of California. After ajudge approved the auction, county of�cials were the �rst to bid. Verity hadjudge approved the auction, county of�cials were the �rst to bid. Verity hadjudge approved the auction, county of�cials were the �rst to bid. Verity hadbeen in discussion with more than 100 organizations looking at various parts ofbeen in discussion with more than 100 organizations looking at various parts ofbeen in discussion with more than 100 organizations looking at various parts ofthe hospital system, but none put in a bid, allowing the county to win bythe hospital system, but none put in a bid, allowing the county to win bythe hospital system, but none put in a bid, allowing the county to win bydefault.default.default.
“It’s pretty exciting,” said County Executive Jeff Smith, who also is a physician.“It’s pretty exciting,” said County Executive Jeff Smith, who also is a physician.“It’s pretty exciting,” said County Executive Jeff Smith, who also is a physician.“The whole county population is increasing, and we need additional beds and“The whole county population is increasing, and we need additional beds and“The whole county population is increasing, and we need additional beds andspace.”space.”space.”
VMC is currently at 91 percent capacity, Smith said. The acquisition of the twoVMC is currently at 91 percent capacity, Smith said. The acquisition of the twoVMC is currently at 91 percent capacity, Smith said. The acquisition of the twohospitals will add 456 beds to the system, on top of Valley Medical’s 380 beds,hospitals will add 456 beds to the system, on top of Valley Medical’s 380 beds,hospitals will add 456 beds to the system, on top of Valley Medical’s 380 beds,more than doubling the total number available countywide.more than doubling the total number available countywide.more than doubling the total number available countywide.
2/4/2019 Santa Clara County buys hospitals for $235 million
The bankruptcy court is expected to approve the county’s offer later this month,The bankruptcy court is expected to approve the county’s offer later this month,The bankruptcy court is expected to approve the county’s offer later this month,with the county expected to take over operations by Feb. 25. Verity’s more thanwith the county expected to take over operations by Feb. 25. Verity’s more thanwith the county expected to take over operations by Feb. 25. Verity’s more than1,700 employees will be offered jobs with the county.1,700 employees will be offered jobs with the county.1,700 employees will be offered jobs with the county.
The county is sure to face scrutiny if its �nancial projections for saving a pair ofThe county is sure to face scrutiny if its �nancial projections for saving a pair ofThe county is sure to face scrutiny if its �nancial projections for saving a pair of�nancially beleaguered hospitals don’t pan out. But Smith insists that even�nancially beleaguered hospitals don’t pan out. But Smith insists that even�nancially beleaguered hospitals don’t pan out. But Smith insists that evenunder the worst-case scenario, the county expects to operate the hospitals atunder the worst-case scenario, the county expects to operate the hospitals atunder the worst-case scenario, the county expects to operate the hospitals atless of a loss than the private sector or nonpro�ts. That’s because publicless of a loss than the private sector or nonpro�ts. That’s because publicless of a loss than the private sector or nonpro�ts. That’s because publichospitals such as VMC receive more funding per patient under the state’shospitals such as VMC receive more funding per patient under the state’shospitals such as VMC receive more funding per patient under the state’sversion of the Affordable Care Act.version of the Affordable Care Act.version of the Affordable Care Act.
Verity issued a statement con�rming the county’s offer and detailing theVerity issued a statement con�rming the county’s offer and detailing theVerity issued a statement con�rming the county’s offer and detailing thetechnical steps the court will take in response.technical steps the court will take in response.technical steps the court will take in response.
“Verity Health System con�rms the Final Sale Order hearing with the“Verity Health System con�rms the Final Sale Order hearing with the“Verity Health System con�rms the Final Sale Order hearing with theBankruptcy Court is on December 19 for the assets of O’Connor Hospital, SaintBankruptcy Court is on December 19 for the assets of O’Connor Hospital, SaintBankruptcy Court is on December 19 for the assets of O’Connor Hospital, SaintLouise Regional Hospital and DePaul Health Center. Santa Clara County isLouise Regional Hospital and DePaul Health Center. Santa Clara County isLouise Regional Hospital and DePaul Health Center. Santa Clara County isoffering to purchase these assets for $235 million.”offering to purchase these assets for $235 million.”offering to purchase these assets for $235 million.”
The company’s board of directors previously had made clear that the �rmThe company’s board of directors previously had made clear that the �rmThe company’s board of directors previously had made clear that the �rmpreferred to sell some or all of the hospitals to buyers who would continue topreferred to sell some or all of the hospitals to buyers who would continue topreferred to sell some or all of the hospitals to buyers who would continue toprovide health care, rather than convert the property to housing, of�ces orprovide health care, rather than convert the property to housing, of�ces orprovide health care, rather than convert the property to housing, of�ces orshops.shops.shops.
The purchase comes amid a signi�cant turnaround for Santa Clara County’sThe purchase comes amid a signi�cant turnaround for Santa Clara County’sThe purchase comes amid a signi�cant turnaround for Santa Clara County’spublic health care system, which had been a signi�cant drain on county cofferspublic health care system, which had been a signi�cant drain on county cofferspublic health care system, which had been a signi�cant drain on county coffersbefore California expanded Medi-Cal payments to public hospitals under thebefore California expanded Medi-Cal payments to public hospitals under thebefore California expanded Medi-Cal payments to public hospitals under theAffordable Care Act. The county also has taken steps to improve billing andAffordable Care Act. The county also has taken steps to improve billing andAffordable Care Act. The county also has taken steps to improve billing andincrease ef�ciency at VMC and its clinics, including increasing the number ofincrease ef�ciency at VMC and its clinics, including increasing the number ofincrease ef�ciency at VMC and its clinics, including increasing the number ofpatients its physicians treat.patients its physicians treat.patients its physicians treat.
The health care system previously depended on the county’s general fund for anThe health care system previously depended on the county’s general fund for anThe health care system previously depended on the county’s general fund for anannual subsidy of about $250 million. The subsidy has now shrunk 68 percent,annual subsidy of about $250 million. The subsidy has now shrunk 68 percent,annual subsidy of about $250 million. The subsidy has now shrunk 68 percent,to $80 million annually. The new acquisitions will be funded through a leaseto $80 million annually. The new acquisitions will be funded through a leaseto $80 million annually. The new acquisitions will be funded through a leaserevenue bond, which is a loan backed by the projected revenue generated by therevenue bond, which is a loan backed by the projected revenue generated by therevenue bond, which is a loan backed by the projected revenue generated by thehospitals.hospitals.hospitals.
The system always will be at least slightly in the red, Smith said, because itThe system always will be at least slightly in the red, Smith said, because itThe system always will be at least slightly in the red, Smith said, because ittreats people who are not insured or on Medi-Cal or Medicare. Under the worst-treats people who are not insured or on Medi-Cal or Medicare. Under the worst-treats people who are not insured or on Medi-Cal or Medicare. Under the worst-case scenario, the new hospitals acquired from Verity would put the systemcase scenario, the new hospitals acquired from Verity would put the systemcase scenario, the new hospitals acquired from Verity would put the systemanother $5-$7 million in the red; under the best case, they bring in roughly theanother $5-$7 million in the red; under the best case, they bring in roughly theanother $5-$7 million in the red; under the best case, they bring in roughly thesame amount, Smith said.same amount, Smith said.same amount, Smith said.
The transition will come less than four years after the hospital’s original owners,The transition will come less than four years after the hospital’s original owners,The transition will come less than four years after the hospital’s original owners,Los Alto Hills-based Catholic Daughters of Charity, sold its nonpro�t hospitalLos Alto Hills-based Catholic Daughters of Charity, sold its nonpro�t hospitalLos Alto Hills-based Catholic Daughters of Charity, sold its nonpro�t hospitalgroup, including two Los Angeles hospitals, to an East Coast hedge fund.group, including two Los Angeles hospitals, to an East Coast hedge fund.group, including two Los Angeles hospitals, to an East Coast hedge fund.
2/4/2019 Santa Clara County buys hospitals for $235 million
The hedge fund, Bluemountain Capital Management, then sold its IntegrityThe hedge fund, Bluemountain Capital Management, then sold its IntegrityThe hedge fund, Bluemountain Capital Management, then sold its IntegrityHealthcare division, which manages Verity, to a Culver City company owned byHealthcare division, which manages Verity, to a Culver City company owned byHealthcare division, which manages Verity, to a Culver City company owned bybillionaire doctor and entrepreneur Patrick Soon-Shiong, who also owns the Losbillionaire doctor and entrepreneur Patrick Soon-Shiong, who also owns the Losbillionaire doctor and entrepreneur Patrick Soon-Shiong, who also owns the LosAngeles Times and San Diego Union-Tribune. But the �nancial woes continued.Angeles Times and San Diego Union-Tribune. But the �nancial woes continued.Angeles Times and San Diego Union-Tribune. But the �nancial woes continued.
In October, Verity of�cials praised the county for its interest in acquiring theIn October, Verity of�cials praised the county for its interest in acquiring theIn October, Verity of�cials praised the county for its interest in acquiring thehospitals.hospitals.hospitals.
“O’Connor and Saint Louise are two critically important institutions in the“O’Connor and Saint Louise are two critically important institutions in the“O’Connor and Saint Louise are two critically important institutions in thecommunities they serve, and the county has shown great leadership to ensurecommunities they serve, and the county has shown great leadership to ensurecommunities they serve, and the county has shown great leadership to ensureboth can continue their mission of providing high-quality care to patients wellboth can continue their mission of providing high-quality care to patients wellboth can continue their mission of providing high-quality care to patients wellinto the future,” said Rich Adcock, CEO of Verity Health.into the future,” said Rich Adcock, CEO of Verity Health.into the future,” said Rich Adcock, CEO of Verity Health.
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Tracey KaplanTracey KaplanTracey Kaplan Tracey Kaplan is a reporter for the Bay Area NewsTracey Kaplan is a reporter for the Bay Area NewsTracey Kaplan is a reporter for the Bay Area NewsGroup based at The Mercury News. A former courts reporter, sheGroup based at The Mercury News. A former courts reporter, sheGroup based at The Mercury News. A former courts reporter, sheis now reporting primarily on consumer issues, and welcomes anyis now reporting primarily on consumer issues, and welcomes anyis now reporting primarily on consumer issues, and welcomes anytips/suggestions, especially on how to make ends meet in the Baytips/suggestions, especially on how to make ends meet in the Baytips/suggestions, especially on how to make ends meet in the BayArea. Watch for a series this summer on her personal solution toArea. Watch for a series this summer on her personal solution toArea. Watch for a series this summer on her personal solution tothe housing crisis -- spending her nest egg on turning a cargo vanthe housing crisis -- spending her nest egg on turning a cargo vanthe housing crisis -- spending her nest egg on turning a cargo vaninto what will eventually be her full-time home. For more info,into what will eventually be her full-time home. For more info,into what will eventually be her full-time home. For more info,see @itsavanlife on Instagram and our Facebook group, Fullsee @itsavanlife on Instagram and our Facebook group, Fullsee @itsavanlife on Instagram and our Facebook group, FullHouse: Inside the Bay Area housing shortage.House: Inside the Bay Area housing shortage.House: Inside the Bay Area housing shortage.
PERB Case No. SF-CE-1648-M; Injunctive Relief Request No.
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NICOLE J. DARO SBN 276948 KYRSTEN B. SKOGSTAD SBN 281583 ANTHONY J. TUCCI SBN 288819 CALIFORNIA NURSES ASSOCIATION LEGAL DEPARTMENT 155 Grand Avenue, 2nd Floor Oakland, CA 94612 (510) 273-2200 (telephone) (510) 663-4822 (facsimile) Attorneys for Charging Party CALIFORNIA NURSES ASSOCIATION
THE STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD CALIFORNIA NURSES ASSOCIATION, Charging Party, and COUNTY OF SANTA CLARA, Respondent.
) ) ) ) ) ) ) ) ) ) ) ) )
PERB Case No. SF-CE-1648-M Injunctive Relief Request No. DECLARATION OF ANDREW PREDILETTO IN SUPPORT OF CHARGING PARTY CALIFORNIA NURSES ASSOCIATION’S REQUEST FOR INJUNCTIVE RELIEF
I, Andrew Prediletto, hereby declare as follows:
1. I am the Director of Strategic Campaigns at California Nurses
Association/National Nurses Organizing Committee/National Nurses United (“CNA”). I have
held this position since 2018. Before my current assignment, I was Assistant Director of
Collective Bargaining from 2013 through 2018. My assignment includes responsibilities over
collective-bargaining relationship between CNA and Verity Hospitals, Inc., which includes
O’Connor and St. Louise Hospitals that are located in the County of Santa Clara. Specifically, I
2 Declaration of Andrew Prediletto in Support of
PERB Case No. SF-CE-1648-M; Injunctive Relief Request No.
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have been tasked with the responsibilities of overseeing CNA’s representational activities during
the transition from Verity to the County of Santa Clara (“County”) as the employer following the
bankruptcy sale.
2. In December 2018, the County was the winning bidder by default in a bankruptcy
auction for the sale of O’Connor and St. Louise Hospitals and later extended offers of
employment to substantially all of the CNA-represented nurses and case managers at these
hospitals. The bankruptcy sale is expected to close on or about March 1, 2019. After the
closing, the County will solely own and operate O’Connor and St. Louise Hospitals. Attached as
Exhibit 1 to UPC No. SF-CE-1648 and incorporated by reference herein is a true and correct
copy of In Re Verity Health Systems, Docket No. 1153, “Order (A) Authorizing the Sale of
Certain of the Debtors’ Assets to Santa Clara County Free and Clear of Liens, Claims,
Encumbrances, and Other Interests, etc.,” Case No. 2:18-bk-20181-ER (December 27, 2018).
3. O’Connor and St. Louise Hospitals are acute care hospitals.
4. For many years, the Daughters of Charity Healthcare System (“DCHS”), a private
non-profit, owned and operated O’Connor and St. Louise Hospitals where CNA was recognized
as the exclusive representative of bargaining units of nurses. In the instant situation the nurses at
the Purchased Hospitals have a long bargaining history of representation by CNA. As noted
above, the Saint Louise Regional Hospital nurses have had CNA as their representative through
many employers spanning decades and the O’Connor Hospital nurses have had CNA as their
representative since at least 2002. Attached as Exhibit A to this Declaration and incorporated
herein is a true and correct copy of the CBA between CNA and O’Connor Hospital with a term
of September 17, 2002 through June 30, 2005.
5. In 2015, DCHS entered into a Systems Restructuring and Support Agreement
with BlueMountain Capital Management LLC. Under this agreement, DCHS changed its name
to Verity Hospital System (“Verity”) and BlueMountain invested money into the hospital system
with the hope of obtaining rights to purchase it at a later date. During this period, CNA remained
the exclusive representative of the bargaining units at O’Connor and St. Louise Hospitals.
3 Declaration of Andrew Prediletto in Support of
PERB Case No. SF-CE-1648-M; Injunctive Relief Request No.
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6. CNA and Verity entered into a Master Collective Bargaining Agreement (the
“Master CBA”) to set forth the terms and conditions of employment for the nurses’ bargaining
units at O’Connor and St. Louise Hospitals (as well as for nurses at St. Vincent Medical Center
and Seton Medical Center). Nurses at O’Connor and St. Louise Hospitals are also covered by
supplemental local agreements specific to each facility. The current CBAs have terms of 2016 to
2020. Attached as Exhibit 2 to UPC No. SF-CE-1648-M and incorporated by reference herein is
a true and correct copy of the Master CBA. Attached as Exhibit 3 to UPC No. SF-CE-1648-M
and incorporated by reference herein is a true and correct copy of the CBA for O’Connor
Hospital. Attached as Exhibit 4 to UPC No. SF-CE-1648-M and incorporated by reference
herein is a true and correct copy of the CBA for St. Louise Hospital.
7. Currently, there are approximately 544 nurses in the bargaining unit at O’Connor
Hospital and 204 nurses in the bargaining unit at St. Louise Hospital.
8. The CNA-represented bargaining units at O’Connor and St. Louise Hospitals also
include the classification of case managers. There are currently approximately 10 case managers
in the bargaining unit at O’Connor Hospital and 10 in the bargaining unit at St. Louise Hospital.
Case managers are registered nurses.
9. On or about August 31, 2018, Verity filed for bankruptcy and announced it would
sell the hospitals it owned, including O’Connor and St. Louise.
10. On or about August 3, 2018, the County submitted a letter of intent to Verity to
purchase O’Connor and St. Louise hospitals. Attached as Exhibit 8 to UPC No. SF-CE-1648-M
and incorporated by reference herein is a true and correct copy of the County’s August 3, 2018
letter of intent. The County submitted a revised letter of intent on August 31, 2018. Attached as
Exhibit 9 to UPC No. SF-CE-1648-M and incorporated by reference herein is a true and correct
copy of the County’s August 31, 2018 revised letter of intent.
11. In or about September 2018, the County Board of Supervisors voted to proceed to
purchase O’Connor and St. Louise Hospitals and enter into an Asset Purchase Agreement
(“APA”) with Verity to govern the terms of the sale. Attached as Exhibit 10 to UPC No. SF-CE-
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1648-M and incorporated by reference herein is a true and correct copy of the APA.
12. Under the terms of the APA, the County agreed to hire “substantially all” of the
RNs that currently work at O’Connor and Saint Louise Hospitals. (UPC No. SF-CE-1648-M,
Ex. 10 § 5.3.1. of APA, at pp. 41–42.)
13. Since Verity filed the APA in bankruptcy court, CNA has maintained that it is the
exclusive representative of the nurses’ bargaining units at O’Connor and St. Louise hospitals,
and that the County, as a successor employer, must recognize CNA as such. CNA
communicated this position to the County multiple times.
14. The County currently operates the Santa Clara Valley Medical Center
(“SCVMC”), which employs approximately between 1,500 and 2,300 registered nurses.
15. The County has an established bargaining-unit that includes the registered nurses
at SCVMC. The Registered Nurses Professional Association (“RNPA”) is the exclusive
representative of the County RNPA unit, which consists of approximately 1,500 to 2,300 RNPA
members that are employed at SCVMC. The County also has an established unit for the County
Employees’ Management Association (“CEMA”) represents registered nurse classifications
employed by the County as well.
16. Since the County announced its intent to purchase O’Connor and St. Louise
Hospitals, CNA made clear that it was the exclusive representative of CNA-represented RNs and
case managers at the two hospitals.
17. Beginning in or about October 2018, I participated in a series of meetings with
County officials regarding CNA’s status as the exclusive representative and bargaining going
forward. At these meetings, the County never said it would recognize it CNA as the exclusive
representative of its members at O’Connor and St. Louise Hospitals. In fact, it unambiguously
stated that its “default position” was to place CNA members into the County RNPA and CEMA
units.
18. On November 15, 2018, CNA wrote the County to explain that if it were the
successful bidder at the bankruptcy auction, it would become a successor employer and “would
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be obligated to recognize and bargain with [CNA] and could not require the union to
demonstrate that it had majority support” at O’Connor and St. Louise hospitals. Attached as
Exhibit 11 to UPC No. SF-CE-1648-M and incorporated by reference herein is a true and correct
copy of the November 15, 2018 letter from Kyrsten Skogstad, CNA staff attorney, to James
Williams, County Counsel.
19. On or about January 25, 2019 through February 6, the County sent letters to all or
substantially all of the CNA-represented RNs at O’Connor and St. Louise Hospitals with the
subject line “Conditional Offer of Provisional Employment.” Attached as Exhibit 12 to UPC No.
SF-CE-1648-M and incorporated by reference herein is a true and correct copy of a February 6,
2019 letter from the County of Santa Clara Health System to a CNA-represented RN at
O’Connor Hospital. Attached as Exhibit 13 to UPC No. SF-CE-1648-M and incorporated by
reference herein is a true and correct copy of a February 1, 2019 letter from the County of Santa
Clara Health System to a CNA-represented RN at St. Louise Hospital.
20. In the letters, the County informed the CNA-represented RNs their start date, rate
of pay, and that they would be represented by RNPA. The rate of pay corresponded to the
RNPA wage scales. The letter further informed the CNA-represented RNs that they must accept
these conditions by a date certain.
21. The RNPA wage scales are different than the wage scales under the CNA CBAs
with Verity for O’Connor and St. Louise Hospitals. In many cases, the wages under the RNPA
scales are substantially less than the scales under the CNA CBAs.
22. On or about January 25, 2019 to February 6, 2019, the County sent letters to all or
substantially all of the CNA-represented case managers at O’Connor and St. Louise hospital with
the subject line “Conditional Offer of Provisional Employment” similar to what the County sent
to the CNA-represented RNs. Through my representation of the CNA members, I have learned
that the County intends to hire some if not substantially all of the Verity Hospitals’ managers at
O’Connor and St. Louise Hospitals and place them in the County CEMA unit; CNA does not
currently represent these managers at the Purchased Hospitals.
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23. In these letters, the County informed the CNA-represented case managers their
start date, rate of pay, and that they would be represented by CEMA. The rate of pay
corresponded to the CEMA wage scales. The letter further informed the CNA-represented case
managers that they must accept these conditions by a date certain.
24. The CEMA wage scales are different than the wage scales under the CNA CBAs
with Verity for O’Connor and St. Louise Hospitals. In many cases, the wages under the CEMA
scales are substantially less than the scales under the CNA CBAs.
25. The County failed to notify CNA of its decision to send this letter to its members,
including its decision to reduce the pay of CNA-represented RNs and CEMA and recognize
RNPA as the representative of CNA-represented RNs and CEMA as the representative of CNA-
represented case managers at O’Connor and St. Louise Hospitals. Nor did the County provide
CNA an opportunity to bargain over the decision and/or effects of these changes to RNs’ wages
and working conditions.
26. On January 30, 2019, CNA sent a letter to the County requesting to confirm that
as the successor employer, it will recognize CNA as the exclusive representative of RNs at
O’Connor and St. Louise hospitals. Attached as Exhibit 14 to UPC No. SF-CE-1648-M and
incorporated by reference herein is a true and correct copy of the January 30, 2019 letter from
Julie Tran, Labor Representative for CNA, to Williams and Lisa Dumanowski, Principal Labor
Relations Representative for the County.
27. The County added the approximately 728 CNA-represented positions from
O’Connor and St. Louise Hospitals to the County RNPA unit without a petition for unit
modification and without a showing of support that the CNA-represented employees sought to be
represented by RNPA. CNA never received any notice of a petition with proof of majority
support to accrete CNA-represented members into the County RNPA unit. Lack of such a
petition is also evidenced by RNPA’s, and seemingly the County’s, position that this matter is a
case of simple accretion. (RNPA App. of Joinder to UPC No. SF-CE-1648-M, at p. 2 [filed on
February 15, 2019].)
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28. There has been no decertification election to decertify CNA as the exclusive
representative of RNs and case managers at the O’Connor and St. Louise Hospitals.
29. On February 1, 2019, the County responded that CNA’s request was premature
and CNA would have to file a petition to demonstrate that it had majority support under the
County’s rules. Attached as Exhibit 15 to UPC No. SF-CE-1648-M and incorporated by
reference herein is a true and correct copy of the February 1, 2019 letter from the County to
CNA.
30. On February 4, 2019, CNA again reiterated that it is demanding that the County
recognize CNA because the County is a successor employer. Attached as Exhibit 16 to UPC No.
1648-M and incorporated by reference herein is a true and correct copy of the February 4, 2019
email from Tran to Dumanowski with attachments.
31. On February 6, the County responded to CNA’s February e-mail, stating that it
was unable to respond substantively by February 6 and would do so by February 15. Attached as
Exhibit 17 to UPC No. SF-CE-1648-M is a true and correct copy of the February 6 e-mail from
Dumanowski to Tran.
32. As of the date of my signing of this declaration, neither Dumanowski nor anyone
else at the County, has responded to CNA’s January 30 letter that reiterated our request for
recognition.
33. From February 6 through 11, 2019 CNA held a strike-authorization vote to decide
whether to strike the County over its unfair labor practices. 90 percent of the CNA-represented
members at O’Connor and St. Louise Hospitals voted in favor for strike authorization.
34. I declare under penalty of perjury that the foregoing is true and correct. Executed
on this 20th day of February, 2019, in Oakland, California.
