Regents of the University of California (California Nurses Association) (PERB 1255H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA NURSES 	ASSOCIATION,
Charging 	Party,
v.
THE REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
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) 	Case No. 	LA-CE-413-H
PERB Decision No. 	1255-H
March 20, 	1998
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Appearances: 	Eggleston, 	Siegel and LeWitter by M. 	Jane Lawhon,
Attorney, 	for California Nurses Association; 	Office of 	the
General 	Counsel by Susan H. 	von Seeburg, 	Attorney, 	for The
Regents 	of 	the University of 	California.
Before Johnson, 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by both The
Regents 	of 	the University of 	California 	(University) 	and the
California Nurses Association 	(Association) 	to a PERB
administrative 	law judge's 	(ALJ) 	proposed decision 	(attached).
In his proposed decision, 	the ALJ held that 	the University
violated section 3571(a) 	and 	(c) 	of 	the Higher Education
Employer-Employee Relations Act 	(HEERA)1 when it hired
It 	shall be unlawful 	for the higher education
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
1HEERA	HEERA is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3571 provides, 	in relevant part:

cardiovascular 	technicians 	to perform duties 	exclusively-
performed by unit members, 	refused to bargain over said change,
refused 	to provide 	necessary and 	relevant 	information 	to 	the
Association, 	and discriminated against 	an Association activist
because 	of his protected activities.
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with an 	exclusive 	representative.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	the hearing transcript, 	and the
University and Association's 	exceptions 	and 	responses 	to
exceptions. 	The Board finds 	the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	from prejudicial 	error and adopts
them as 	the decision of 	the Board 	itself.
ORDER
Upon the findings of 	fact, 	conclusions of law, 	and the
entire 	record in this 	case, 	it 	is 	found that The Regents 	of 	the
University of 	California 	(University) 	violated 	the Higher
Education Employer-Employee Relations Act 	(HEERA), 	Government
Code section 3571(a) 	and 	(c). 	The University violated section
3571(c) 	by unilaterally 	transferring bargaining unit work 	to
employees 	outside 	of 	the bargaining unit without providing 	the
California Nurses Association 	(Association) 	with notice 	and an
opportunity 	to bargain over 	this 	issue 	and when 	it 	failed 	to
22

provide 	necessary and 	relevant 	information upon 	the Association's
request. 	This 	same 	conduct 	also 	interfered with the 	right 	of
unit members 	to be 	represented by 	the Association 	in violation of
section 3571(a). 	It 	is also found that 	the University retaliated
against Michael 	Leptuch 	(Leptuch) 	for his 	involvement 	in
protected activities. 	This action violated section 3571(a).
Pursuant 	to section 3563.3 	of 	the HEERA, 	it 	is hereby
ORDERED 	that 	the University, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally transferring 	duties 	of 	bargaining
unit 	employees 	outside of 	the bargaining unit, 	failing to provide
relevant 	and necessary 	information, 	or 	retaliating against
employees 	for 	their exercise 	of 	rights 	protected by 	the 	HEERA.
2. 	By the 	same 	conduct, 	denying bargaining unit
employees 	the 	right 	to be 	represented by the Association.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	HEERA:
1. 	Upon demand of 	the Association, 	meet and confer
about duties of registered nurses 	(RN).
2. 	Restore 	the 	conditions 	of 	RN duties 	that prevailed
prior 	to 	the hiring of 	Cardiovascular Technicians.
3. 	Remove and destroy the August 	15, 	1994 	letter of
reprimand 	to 	Leptuch.
4. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no 	longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
3

placed, 	copies 	of 	the Notice attached as an Appendix hereto,
signed by an authorized agent 	of 	the University, 	indicating 	that
the University will 	comply with the 	terms 	of 	this 	Order. 	Such
posting 	shall 	be maintained 	for a period 	of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall 	be 	taken to 	insure
that this Notice is not reduced in size, 	defaced, 	altered or
covered by any material.
5. 	Written notification of 	the actions 	taken to
comply with 	this 	Order shall 	be made 	to 	the 	San 	Francisco
Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with the director's 	instructions. 	All 	reports 	to
the 	regional 	director 	shall 	be 	concurrently 	served on 	the
Association.
All 	other aspects 	of 	the 	charge and complaint 	are hereby
DISMISSED.
Members 	Johnson and Amador 	joined 	in 	this Decision.
4

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State of 	California
After a hearing in Unfair Practice Case No. 	LA-CE-413-H,
California Nurses Association v. 	The Regents 	of 	the University of
California, 	in which all parties had the right 	to participate, 	it
has been 	found that 	The Regents 	of 	the University of 	California
(University) 	has violated Government 	Code section 3571(a) 	and 	(c)
of the Higher Education Employer-Employee Relations Act 	(HEERA).
The University violated 	section 	3571(c) 	by unilaterally
transferring bargaining unit 	work 	to 	employees 	outside 	of 	the
bargaining unit 	without 	providing 	the 	California Nurses
Association 	(Association) 	without 	notice and an opportunity to
bargain 	over 	this 	issue 	and when 	it 	failed 	to provide 	necessary
and relevant 	information upon the Association's 	request. 	This
same 	conduct 	also 	interfered with 	the 	right 	of 	unit members 	to be
represented by the Association 	in violation of 	section 3571(a).
It 	is 	also 	found 	that 	the University 	retaliated against Michael
Leptuch 	(Leptuch) 	for his 	involvement 	in protected activities.
This action violated section 3571(a).
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	transferring duties 	of 	bargaining
unit 	employees 	outside of 	the bargaining unit, 	failing to provide
relevant 	and necessary 	information, 	or retaliating against
employees 	for 	their 	exercise 	of 	rights protected by 	the 	HEERA.
2. 	By the same 	conduct, 	denying bargaining unit
employees 	the 	right 	to be 	represented by the Association.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF HEERA.
1. 	Upon demand of 	the Association, 	meet and confer
about duties of registered nurses 	(RN).
2. 	Restore 	the 	conditions 	of 	RN duties 	that prevailed
prior to 	the hiring of 	Cardiovascular Technicians.
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3. 	Remove and destroy the August 	15, 	1994 	letter of
reprimand 	to 	Leptuch.
Dated: 	THE 	REGENTS 	OF 	THE 	UNIVERSITY
OF 	CALIFORNIA
By:.
Authorized 	Agent
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA NURSES ASSOCIATION,
Charging 	Party,
v.
THE REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA, 	-
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	LA-CE-413-H
PROPOSED DECISION
(6/3 0/97)
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Appearances: 	Eggleston, 	Siegel and LeWitter, 	by M. 	Jane Lawhon,
Esq., 	for California Nurses Association; 	Office of 	the General
Counsel by Susan von Seeburg, 	University Counsel, 	for the Regents
of 	the University of 	California.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	examines 	the 	impact 	of 	the University's
appointment 	of 	cardiovascular technicians 	(CVT) 	whose duties
overlapped with incumbent 	registered nurses 	(RN),. 	and a letter of
reprimand given 	to 	a RN who 	complained of 	tasks 	being performed
by the 	technicians.
On December 9, 	1994, 	the California Nurses Association 	(CNA)
filed an unfair practice 	charge 	against 	the 	Regents 	of 	the
University of 	California 	(University or U C ) . 	After two
subsequent 	amendments 	to the unfair practice 	charge, 	the Office
of 	the General 	Counsel 	of 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	investigated the matter and 	issued a complaint 	on
June 12, 	1995.1
1Prior to 	issuing the 	complaint, 	the general 	counsel 	issued
a 	refusal 	to 	defer 	the matter 	to 	the 	grievance machinery of 	the
parties' 	memorandum of understanding.
•

The 	complaint 	alleged 	four 	causes 	of 	action 	against 	the
University. 	The 	first three were 	that: 	(1) 	in July of 	1994, 	the
University 	unilaterally 	transferred 	duties 	of 	scrub 	nurses 	to
employees 	outside 	of 	the bargaining unit; 	(2) 	on September 	14,
1994, 	the 	University refused CNA's 	request 	to meet 	and confer on
the 	decision 	and 	effects 	of 	the 	change 	in policy on 	duties 	of
scrub nurses; 	and 	(3) 	on or about August 	5, 	1994, 	CNA requested
information 	relevant 	and 	necessary 	to 	discharge 	its 	duty 	to
represent 	employees. 	The 	information 	requested was 	job
descriptions 	for 	CVTs 	and RNs; 	any modifications 	of 	RN duties;
and 	any 	communications 	with 	outside 	agencies 	concerning 	the 	use
of 	CVTs. 	It 	was 	alleged 	that 	the 	University did not 	respond 	to
CNA's 	request 	until 	November 28, 	1994, 	and then 	it 	only provided
the 	CVT 	job description. 	The 	conduct 	described 	above 	was 	said 	to
be 	a 	violation 	of 	the 	Higher 	Education 	Employer-Employee
Relations Act 	(HEERA or Act) 	section 3571(a), 	(b) 	and 	(c).2
2HEERA 	is 	codified 	at 	Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to 	the
Government 	Code. 	In relevant part, 	section 3571 	states 	that 	it
is 	unlawful 	for 	the 	University 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	this 	chapter.
For purposes of 	this 	subdivision, 	"employee"
includes 	an 	applicant 	for 	employment 	or
reemployment.
(b) 	Deny to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
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The 	fourth cause 	of 	action alleged that 	the University-
issued 	a 	written warning 	against 	Michael 	Leptuch 	(Leptuch)
because 	he 	exercised 	rights 	guaranteed by HEERA by objecting 	on
behalf 	of RNs 	to a CVT's performance of duties previously
performed only by RNs. 	This 	action was 	said to be 	a violation of
section 3571(a).
The University filed its answer on July 24, 	1995, 	denying
certain 	allegations 	and 	any violation 	of 	HEERA and 	raising
defenses 	that will 	be 	considered 	in other parts 	of 	this proposed
decision.3
A settlement 	conference 	did not 	resolve 	the 	dispute. 	Formal
hearing was held on July 22, 	23, 	24 and 25, 	and October 25, 	1996,
in Los Angeles, 	California. 	With the 	filing of post-hearing
briefs on March 6, 	1997, 	the matter was 	submitted for decision.
FINDINGS 	OF 	FACT
The 	University 	is 	a higher education 	employer within 	the
meaning of 	the Act. 	CNA is 	the 	exclusive 	representative 	of
nurses 	employed by 	the University. 	The University operates
highly specialized laboratories for heart patients. 	In 1993, 	at
the University's 	Los Angeles Medical 	Center there were 	three
laboratories, 	the adult 	cardiac catherization laboratory 	(ACCL),
the 	4 West 	Procedure Laboratory 	(4West 	Lab) 	and a pediatric
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with 	an 	exclusive 	representative.
3The 	University again moved 	for 	dismissal 	on 	deferral
grounds. 	That motion was 	denied by the undersigned on July 2,
1996.
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catherization 	laboratory, 	all 	dedicated to heart patients.4 Both
diagnostic 	and 	interventional 	procedures 	are 	performed 	in 	the
labs.
For all 	times relevant, 	Lawrence Yeatman 	(Yeatman) 	has
served as 	director of 	the ACCL and Frances 	Ridlehoover
(Ridlehoover) 	has been associate director of the medical 	center.
Until 	the 	summer of 	1994, 	Laboratory Technologist Heidi Noriyuki
(Noriyuki) 	was ACCL manager. 	Around June of 1994, 	Beth Schraad
(Schraad) 	became the nurse manager of ACCL. 5 Leptuch is 	an
employee 	of 	the 	University within 	the 	meaning of 	the Act 	and has
been employed 	full-time 	as 	an RN in the ACCL since 	1988. 	For all
times relevant, 	Jose Sanchez 	(Sanchez) 	has been a radiation
technologist 	at 	the ACCL.
As more particularly described below, 	in the 	spring of 	1994,
following an earthquake 	in Los Angeles, 	the University hired CVTs
into 	the ACCL and the 	4West 	Lab. 	Their duties 	included some 	of
those previously done by RNs.
A 	second 	laboratory was 	planned 	for 	completion 	in 	September
1994. 	Because of 	the 	tremendous 	increase 	in patients 	and the
4This 	case 	focuses on the ACCL, 	however, 	some evidence was
received on the 	4West 	Lab. 	The 	only common procedure 	for both
labs 	is 	the 	right 	heart 	catherization. 	Pacemaker insertions,
bronchoscopies, 	and cardioversions 	are performed 	in the 	4West
Lab. 	While radial 	technologists do not work in 4West, 	it 	appears
RNs 	did 	serve 	as 	scrub nurses 	to assist 	the 	attending physician
in pacemaker procedures. 	CVTs 	later began to 	scrub and assist 	in
this procedure.
5Schraad came 	from St 	John's Hospital 	where 	she was 	the
catherization 	laboratory manager.
4

request 	of 	the 	first 	lab staff, 	the 	contractor's 	finished the
second lab in time 	for it 	to open in May 1994.
The 	Past 	Staffing 	Practice
For all 	times relevant, 	prior to the 	spring of 	1994,
staffing 	for predominately performed 	left 	heart 	catherization
cardiac 	procedures 	in the ACCL 	consisted of 	the 	attending
physician, 	a fellow,6 a radiation technologist, 	and one or two
RNs.7
The 	diagnostic procedures 	(about 	80 	percent 	of 	the work done
in the ACCL) 	include 	the 	left heart 	catherization where 	a
catheter 	is 	introduced into one 	of 	the patient's 	arteries,
through the 	groin or in the 	arm, 	and is 	threaded to the heart 	and
into one 	of 	the 	coronary arteries.8 Contrast media 	consisting of
a 	dye 	is 	injected 	into 	the 	arteries 	and x-ray recordings 	are 	made
tracing the dye. 	In addition, 	a 35 millimeter film records 	the
continuous 	x-ray 	film.
If 	a problem is 	indicated, 	the patient 	is 	scheduled for some
interventional 	procedure 	such as 	angioplasty, 	which comprises 	90
6A fellow is 	a medical 	doctor 	still 	in training 	in the
specialty.
7It 	appears 	that 	the 	daily staffing of 	RNs was 	such that 	one
commenced work at 	7 	a.m., 	a 	second around 10 	a.m. 	and a 	third
some 	time 	later. 	The effect 	of 	this 	scheduling was 	such that
during the mid-day, 	there were 	two RNs on duty.
8This procedure 	includes 	the use of 	a sheath, 	which is
inserted 	into 	the 	artery and 	into which the 	catheter 	is 	inserted.
The 	sheath can be 	left 	in the patient 	for more 	than one
procedure. 	It 	remains 	in the patient 	after the procedure 	is
completed 	and 	is 	removed when 	the 	blood 	clotting 	factor 	is
determined to be 	suitable.
55

percent 	of 	interventional procedures. 	If no problem is 	indicated
the patient 	is 	returned to his 	room.
Initially, 	for the diagnostic procedure, 	the patient 	comes
into 	the 	lab on a hospital 	bed and 	is moved onto 	the x-ray exam
table. 	The patient 	is then hooked up to 	a blood pressure 	cuff, 	a
pulse oximeter and a electrocardiogram 	(EKG) 	machine. 	The
patient's 	groin 	is 	then 	shaved. 	The nurse or other 	staff 	then
scrub.9 After scrubbing, 	the nurse 	then completes 	the
sterilization of 	the 	groin area with a 	disinfectant 	and 	then
"draped" 	the patient 	with a 	sterile paper 	sheet with only the
patient's 	face 	and the actual 	surgical 	field in the 	groin area
exposed. 	The patient 	is given an intravenous 	(IV) 	under pressure
that 	can be 	used to 	inject 	contrast 	through 	a manifold which 	can
also be used to measure pressure. 10 The nurse 	also usually
prepares the medications, 	such as heparin, 	an anti-coagulant used
to defer the blood's 	tendency to 	clot 	when the 	catheter 	is
inserted.
Usually, 	the 	attending physician and 	fellow then arrives 	to
commence 	the procedure.11 The 	RN assists 	both donning 	their
9Scrub means use 	of 	a 	special 	sink and brushes where 	the
employee 	scrubs 	their hands 	in a 	specified 	fashion 	for 	ten
minutes. 	Thereafter 	the 	employee 	dons 	a 	sterile gown and sterile
rubber gloves 	and mask.
10The manifold 	is 	connected to 	the 	groin area.
11Leptuch's testimony is not 	that 	RN's 	actually assisted the
attending physician, 	but 	rather 	they stayed 	scrubbed until 	the
fellow arrived. 	He personally has 	stayed on, 	but not 	through the
entire procedure. 	In one 	incident, 	Leptuch complained in a
grievance 	that 	he 	had 	arrived ten minutes 	early 	and Yeatman
called him and asked 	if 	he 	could bring a patient 	in.
66

sterile gowns 	and then break 	scrub, 	that 	is 	take off 	their own
sterile gown. 	Thereafter, 	the RN stands by to administer
medications, 	do charting and monitor the patients vital 	signs 	on
the available television screens. 	Meanwhile, 	the radiation
technologist 	is 	in the 	control 	booth monitoring the procedure 	and
might 	inject 	the 	contrast 	through 	the 	manifold.
Upon completion of 	the procedure, 	the attending physician
leaves 	and the 	fellow prepares 	to 	remove 	the 	sheath. 	This
process 	includes 	ascertaining 	the 	clotting 	time 	by use 	of 	the
activating clotting time 	(ACT) 	device, 	and the 	injection of
protamine 	(to 	counter-act 	the 	heparin and 	control 	the 	bleeding
when the 	sheath is 	removed). 	Protamine was drawn up and
administered by the 	nurse, 	or by the 	fellow later 	in the 	holding
room where 	the patient 	is 	taken after leaving the ACCL.
Suturing the 	sheath was 	done 	by the 	fellow or 	specially
trained 	RNs.12 This procedure 	is 	designed 	to 	tie 	the 	sheath 	in
so 	it 	will 	not 	come 	out while 	the patient 	was waiting for later
interventional 	procedures 	following 	the 	diagnostic procedure.
The 	CVTs
Prior to 	1994, 	two hospitals 	in the west Los Angeles area,
St. 	Johns 	and Santa Monica, 	had ACCLs 	staffed with attending
physicians 	and CVTs. 	It 	is undisputed that 	CVTs 	are not
certified by any 	state 	agency.
12A policy put 	into 	effect 	in 	1991 	expressly allowed 	sheath
removal 	by RNs who met 	certain conditions 	not 	relevant 	here.
7?

Yeatman testified that prior to the January 17, 	1994,
earthquake, 	the ACCL was 	contemplating fewer hours of 	service by
fellows 	and was 	considering alternative 	means 	of 	providing
assistance 	to the 	attending physician.13 However, 	the 	earthquake
severely damaged St. 	Johns 	and Santa Monica hospitals 	and they
were 	closed. 	Within days 	of 	the 	earthquake, 	Yeatman was meeting
with doctors 	from those 	hospitals 	and arranging 	for 	their use 	of
the ACCL. 	Those 	doctors 	related that 	CVTs would 	lose 	their 	jobs
at 	the 	closed hospitals. 	By early February, 	Yeatman had
interviewed Alicia Beach 	(Beach) 	and Mike Lyman 	(Lyman), 	who were
CVTs 	at 	the 	time and had been working at 	St. 	Johns or Santa
Monica hospitals. 	Beach 	started 	in the 	4West 	Lab on February 7,
and Lyman around March 1, 	1994.
The 	lab was 	"fairly 	swamped," 	said Yeatman with 	the 	increase
in patients 	caused by the 	closure 	of 	the 	other two hospitals.
In April 	of 	1994, 	Yeatman generated a job description for
CVTs. 	It 	described their duties as 	follows:
1. 	Circulating in cath lab 	in support 	of
procedures.
2. 	Monitoring physiological 	status of 	the
patient 	during procedures 	and operating 	the
physiological 	recorder.
3. 	Removing sheaths 	in HU, 	00U, 	and hospital
units 	and achieving hemostasis.
13There 	had been underway a 	program 	for 	cross-training 	staff
in the various 	specialized procedures. 	For example, 	Leptuch was
assigned to work 	in 	the 	4West 	Lab on pace maker 	installations.
There 	is no evidence of the extent, 	if any, 	attending physicians
or 	fellows were 	involved 	in 	this 	cross-training endeavor.
8

4. 	Performing other tasks 	at 	the direction
of 	the ACCL Supervisor, 	such as ordering,
stocking, etc.
5. 	Scrubbing for cases 	to assist 	the 	Cath
Attending.
Yeatman 	testified he 	gave 	this 	to Ridlehoover 	to begin 	the
process 	of 	creating a policy on use 	of 	CVT's 	in the 	lab.14
In June of 	1994, 	the ACCL processed three 	requisition forms
for hiring CVTs 	to begin by June 	23 	or as 	soon as possible. 15
Two more 	requisitions 	were 	completed 	in August 	and October 	for
additional CVTs.
RN 	Duties
During the 	hearing, 	the parties 	used a duty statement 	to
ascertain whether 	certain procedures 	related 	to 	the ACCL 	were
performed exclusively by RNs.16 The parties were 	at 	odds 	whether
the 	duty statement 	is 	still 	operative.
14Although titled 	"Job description", 	the University never
provided 	CNA with the 	document 	until 	the 	hearing, 	and then only
through the witness.
15The 	duties 	to be performed were:
Provide 	technical 	support 	and patient 	care
assistance 	for 	the 	Cardiac 	Catheterization
Laboratory 	and 	Cardio 	Pulmonary 	Procedures
Laboratory. 	Assist 	with preparation of
patients 	for procedures 	and helping
physicians 	stabilize patients 	post-procedure.
16This policy statement was 	in effect 	from July 1988 	and
specifically referred to 	the 	functions 	as 	RN duties. 	The policy
also 	noted that 	one 	RN would 	function as 	an 	assistant 	to 	the
operator and a 	second RN would serve 	as 	a 	circulating nurse.
Leptuch testified that 	in May of 	1994, 	RNs did not 	function as
assistant 	to the operator, 	but 	rather, 	that was done by the
fellow.
99

Not 	in dispute, 	however, 	is evidence of RN duties 	set 	forth
in a performance 	evaluation given to Leptuch in 	1993. 	The
evaluation 	contained duties 	of 	the 	RN 	that 	closely paralleled
those 	set 	forth in the 	disputed duty statement.
Primary duties 	for RNs 	listed 	in 	the 	evaluation 	include:
prepare 	room and set up sterile 	instrument 	table; 	review patient
chart 	for consent 	and lab data; 	explain procedures, 	answer
questions 	and establish rapport 	with patients; 	administer
medications and start 	IVs; 	under sterile conditions, 	prep and
drape patients, 	set up all 	IV lines, 	pressure monitoring lines
and manifold; 	assist 	attending physician as 	scrub nurse 	when
fellow not available; 	as circulating nurse, 	monitor and record
patient's vital 	signs, 	administer medications 	and record nursing
notes; 	recognize 	and react 	to emergent 	situations 	and assist 	the
physician; 	keep medical records current; 	and have working
knowledge of various 	equipment 	such as 	cardiac 	output, 	waters
oximeter and pulse oximeter, 	etc.
I 	find 	that 	certain duties 	were performed by RNs
exclusively, and only incidentally by others. The testimony17 and
17I give great weight 	to the testimony of Sanchez, 	Richard
Kroesing 	(Kroesing) 	and Noriyuki 	in making these 	findings.
Noriyuki 	has 	no 	interest 	in the matter as 	she was 	never a nurse
and is retired. 	Sanchez 	is not 	in the bargaining unit, 	yet
remains 	at 	the work 	setting. 	Kroesing has moved 	from the 	RN
classification to a management position. 	All 	gave 	straight-
forward and uncontradicted testimony, 	which, 	coupled with their
absolute 	interest-free perspective, 	rendered their observations
trustworthy. 	On the 	other hand, 	the ACCL director was
contradicted 	in 	several 	respects 	by the 	testimony of 	Sanchez 	and
Lyman, 	a UC witness. 	In addition, 	he displayed a partiality
suggesting deep bias 	against 	nurses. 	He 	denied knowing that
nurses had a patient 	advocacy role, 	although as 	a manager 	it
10

documentary evidence present 	a 	scenario where 	the 	RNs 	routinely
performed these 	services, 	but 	on occasion 	laboratory technician
Noriyuki 	and or 	the 	radiation 	technologist 	might 	be 	called upon
to perform these 	services. 	Thus, 	but 	for exceptional
circumstances, 	these duties were exclusively the duties of RNs:
a. 	Setting up the 	catherization table. 	This 	duty consists
of 	preparing 	the 	table with 	sheets 	and equipment 	before 	the
arrival 	of 	the patient.
It 	is 	found the 	catherization table 	set-up was primarily the
duty of 	the RN. 	This 	is based upon the 	1988 	job description, 	as
augmented by Leptuch's 	1993 	performance 	evaluation. 	In addition,
Schraad called Leptuch's attention, 	in September of 	1994, 	to the
fact 	that 	this was 	a primary function of RNs.
On occasion, 	Noriyuki or Sanchez would set up the 	table.
After their arrival, 	CVTs undertook to set up the
catherization 	table.
b. 	Position patient 	for catherization procedure. 	This
includes 	transferring the patient 	onto the 	table.
This 	duty was 	done by RNs, 	and on occasion they were
assisted by the 	radiation technologist. 	After their arrival,
CVTs did this 	chore.
c. 	Prepare operative 	site. 	This 	task 	includes washing and
shaving 	the 	groin area where 	the 	sheath and 	catheter would be
inserted into the main aorta. 	After the 	shaving, 	a hygienic
would be 	most 	logical 	that 	responsibility be 	understood. 	He
denied any knowledge of 	CVTs manipulating catheters, 	even when
Sanchez 	had 	reported 	such an 	incident 	to 	him.
11

material was 	swathed onto the area. 	In addition, 	IV lines were
set up by the 	RN.
This 	function was performed by RNs. 	Neither Noriyuki 	or the
x-ray technologist 	performed these 	tasks. 	After their arrival,
CVTs would shave 	the 	groin area 	and drape 	the patient. 	CVTs 	even
set 	up 	IV lines 	but 	were 	later 	instructed to cease 	that 	chore.
d. 	Patient 	supervision during 	the procedure 	which 	includes
monitoring all vital 	signs: 	EKG, 	blood pressure, 	respiration,
pulse, 	temperature, 	and IV.
The 	RN had monitoring 	and 	charting 	responsibility. 	There
were others doing charting, 	however, 	from different perspectives
such as 	the 	fellow on procedures 	and 	the 	x-ray technologist 	on
the 	x-ray machine.
It appears that 	CVTs undertook some of these chores.
According to Leptuch, 	CVTs hook up monitors, 	hook up blood
pressure 	and the pulse oximeter, 	EKG and also change 	settings 	on
the 	IV devises.
e. 	Operate equipment 	such as the blood gas analyzer, 	etc.,
during the procedure.
One 	component 	was 	the 	blood clotting 	time 	which 	is
significant 	to determine when 	the 	sheath may be 	removed. 	Prior
to May of 	1994, 	only RNs performed this 	task.18 After their
arrival, 	CVTs performed the task. 	According to Beach, 	a CVT,
this was an RN task, 	but 	she did it 	if 	the RN did not do it.
18According to Leptuch, 	special 	training 	for RNs was 	required
to do this task.
12

Several 	other duties, 	ostensibly 	in contention during the
hearing, 	appear to be 	conceded by CNA as not 	exclusive 	to RNs.
They will 	only briefly be 	referenced 	and 	the 	reason 	for 	the
finding:
a. 	Comfort patient 	and provide psychological 	support.
This 	duty cannot 	be 	said to be 	the primary duty of 	the RN.
Indeed, 	the whole 	staff 	in contact with the patient 	ought 	to be
charged with this 	task. 	It 	cannot 	be 	found that 	the 	attending
physician, 	the 	fellow, 	or the x-ray technician would not 	comfort
the patient.
b. 	Administer medications 	as 	indicated by physician.
While 	it 	is 	clear that 	the 	attending physician, 	the 	fellow
and the RNs were authorized to do this, 	it 	is not 	established
that, 	but for the issue of contrast, 	discussed below, 	CVT's
undertook 	the 	administration of medicine.
c. 	Dress 	surgical 	site 	after completion of 	catherization.
Leptuch testified that 	in May of 	1994 	this was 	not 	a 	regular
duty of 	the 	RN but 	rather 	the 	fellow would generally perform 	this
function to make 	sure 	the 	sheath was 	secured. 	No 	findings 	are
thus made on this 	task.
e. 	Sterilization of all 	instruments, 	catheters, 	and all
other 	supplies 	used during the 	procedure.
This 	job was 	basically eliminated by the 	employment 	of
disposable 	equipment.
13

Other duties 	were not 	established by CNA to be 	the 	exclusive
work of 	RNs 	or that 	CVTs 	assumed performing the 	duties. 	These
included:
f. 	Maintain operating table 	and all 	other equipment 	in
asceptic 	condition.
g. 	Calibrate 	all 	non-radiologic 	equipment 	daily.
h. 	Keep record of patient status, 	procedure, 	complications,
and results 	of procedure.
i. 	Send blood samples 	to clinical 	labs 	if patient 	is having
surgery or 	any other 	indicated 	tests.
j. 	Maintain a 	readily accessible 	supply of 	cardiovascular
and analgesic 	drugs.
k. 	Maintain equipment needed for resuscitation, 	intubation,
and 	cardiac 	resuscitation.
Leptuch's 	Activities
Leptuch has been outspoken about Yeatman. 	In 	1990 	he
complained about 	Yeatman's 	coughing 	into 	a 	clean pan.
In March of 	1994, 	Leptuch wrote to the chief of the
cardiology unit 	complaining that 	Yeatman was 	rushing 	staff. 	The
complaint 	was 	to be 	considered a grievance. 	A copy went 	to
Ridlehoover.19
19In this writing, 	Leptuch wrote 	that 	he yelled into the
phone 	"stop rushing the 	staff". 	He noted that 	he was 	"screaming
at 	Doctor Yeatman" 	on his way home. 	He 	said he had talked to
other 	staff who also 	complained about Yeatman. 	He went 	on to
say:
With his 	constant 	meddling and 	interference,
Dr. 	Yeatman is driving the staff crazy. 	I
want you to put 	a stop to this. 	Have him
14

Leptuch filed a grievance 	in April 	of 	1994, 	complaining to
Ridlehoover about 	Yeatman's 	rushing 	and verbally 	"baiting" 	lab
staff. 	Among other complaints, 	Leptuch referred to risks
associated with physicians 	starting 	the 	procedure 	before 	the
equipment 	is 	ready, 	and risking 	sticking the nurse with needles
or 	splashing blood upon them, 	both HIV dangers.
Sometime 	in May 1994, 	a meeting was held in the new lab that
had 	just 	opened. 	Leptuch raised the 	issue 	of 	CVTs 	scrubbing as
certified but 	unlicensed personnel. 	Yeatman testified 	that 	a 	CVT
gave 	"a 	fairly succinct 	but 	cogent 	response." 	Yeatman also
stated at 	that 	meeting that 	it 	was 	accepted community practice
that 	CVTs 	scrub.
CVT presence 	in the 	laboratory and 	the 	duties 	they performed
became 	a matter of 	discussion at 	staff meetings.20 Leptuch was
the 	informal 	spokesperson. 	While Yeatman and Ridlehoover thought
leave 	the 	staff 	alone 	and 	let 	them do 	their
jobs! 	The 	staff will not 	tolerate this
harassment 	any 	longer.
This 	is 	a written notice 	to management 	that
Dr. 	Yeatman's hurrying of 	and constant
interfering with 	the 	staff 	is 	causing mental
distress 	to 	staff members. 	The 	staff 	expects
this to stop. 	If it does not, 	please
consider this as Step 	I 	of 	the grievance
process.
20Prior to Schraad's 	arrival, 	ACCL staff meetings were 	called
as needed. 	Schraad, 	however, 	issued a schedule of weekly
meetings 	of 	the ACCL staff.
15

that 	Leptuch 	spoke 	for himself,21 it 	is 	clear from the 	testimony
of 	Sanchez and Kroesing, 	another RN, 	that Leptuch spoke of 	issues
of 	concern to RNs 	and the x-ray technologist. 	Sanchez 	and
Kroesing as well as Joyce Enomoto, 	another RN, 	also spoke on the
issues. 	Leptuch would describe 	some 	event where 	a 	CVT had
performed 	a 	task 	Leptuch 	thought 	was 	beyond 	their 	authority 	and
Schraad would say that 	it was 	legal. 	Leptuch later gave 	Schraad
a 	copy of 	title 	22 	and 17 	that were 	copied by Kroesing. 	Again,
the 	RNs were 	told 	that 	the 	CVT 	activities 	were 	accepted community
practice.
Yeatman 	came 	to 	a meeting and 	said he 	knew the 	CVTs 	did not
have 	state 	licenses but 	that 	it was 	a 	legislative oversight 	and
was 	being 	corrected.
Leptuch wrote 	to 	the 	director of 	nursing Heidi 	Crooks
(Crooks) 	on July 22 	indicating that 	on his 	last 	rotation to the
4West 	Lab he was 	asked by the physician to 	"fluoro" 	the position
of the balloon. 	He wrote that 	this was 	illegal 	and that he
refused to do 	it. 	Another nurse did the procedure. 	He 	further
wrote 	that 	CVTs were observed suturing in sheaths, 	running ACTs,
mixing heparin, 	"panning" 	the x-ray table, 	setting up fluoro
shots 	and 	injecting x-ray contrast. 	He wrote 	that 	he 	had told
his 	supervisor who told him it was 	accepted practice. 	It 	was
illegal, 	he 	said, 	and questions could be directed to the State of
California 	(State) 	Department 	of Radiology.
21Neither Yeatman 	or Ridlehoover 	regularly 	attended 	the 	staff
meetings, 	nor did they testify as 	to Leptuch's behavior at 	any
meeting in the 	summer of 	1994.
16

Leptuch also wrote to Dr. 	Neil Parker 	(Parker), 	director of
quality management 	services, 	on August 	2. 	Parker responded on
August 	5 	acknowledging Leptuch's 	letter of August 	2, 	and
telephone 	conversation of August 	4 	expressing the 	following
concerns:
1. 	Nurses 	and CVT's panning 	the 	table 	and operating the
fluoro 	switch.
2. 	CVT's 	injecting protamine 	and contrast 	into coronary
arteries 	through the 	cardiac 	catheters.
3. 	CVT's 	suturing sheaths 	in place.
4. 	CVT's performing 	laboratory testing specifically ACTs
which was 	previously done 	by 	trained RNs.
4. 	CVT's 	inserting and manipulating right 	and 	left 	cardiac
catheters .22
Leptuch 	also 	told Yeatman 	that 	a 	CVT 	had activated 	the 	x-ray
equipment 	and panned 	the 	table 	during 	the procedure.
After investigation, 	UC determined that, 	while 	it may have
been community practice, 	it was not 	supported by regulations.
Therefore, 	UC 	curtailed the practice by memo 	to 	the 	staff 	on
August 5, 	1994. 	Yeatman wrote:
For the present 	time 	it 	is 	the operational
policy of 	the ACCL 	that 	only physicians
licensed as 	operators 	of 	xray equipment 	and
radiation 	technologists 	may activate 	xray
22Yeatman 	specifically denied 	that 	CVTs 	manipulated 	cardiac
catheters. 	In fact, 	Lyman testified that he did a biopsy.
Yeatman denied that 	CVTs 	ever 	inserted catheters. 	Sanchez
described 	such a 	situation and 	testified 	that 	he 	reported 	the
incident 	to Yeatman.
17

equipment 	for the purpose 	of 	making xray
images or pan the 	table. 	Others 	in the 	lab
may turn on the 	equipment 	and move 	the 	image
intensifiers 	into place.
On August 	5, 	1994, 	Leptuch filed an 	"Assignment Despite
Objection" 	form with Schraad, 	objecting to CVTs 	doing 	illegal
procedures. 	In this 	form, 	Leptuch alleged that 	Lyman did an R.V.
biopsy, 	advanced wires 	into 	a patient's 	heart 	and 	injected
contrast. 	On the 	form, 	he 	indicated he had notified risk
management 	and the 	State 	Department 	of Health Services.
On August 	12, 	Ridlehoover responded to Leptuch's 	earlier
letter to 	Crooks 	regarding RN and CVT 	functions. 	She noted a
1993 	memo 	regarding 	a 	list 	of 	functions 	nurses 	could perform with
regard to the 	fluoroscopy equipment. 	She 	then outlined a planned
review of 	CVT duties 	and 	assignments 	to 	insure 	their 	compliance
with Title 	22 	of 	the 	California Administrative 	Code. 	She wrote
she was 	going to establish a 	committee 	of physicians 	and 	staff 	to
also 	include 	review of 	his 	letter.
The 	committee 	was 	established 	in August 	to 	review CVT 	job
duties. 	State 	regulations were 	reviewed and Leptuch's 	concerns
were 	discussed. 	There was never a publication of 	the 	committee's
work.
The Adverse 	Letter
Leptuch got 	a warning letter 	from Schraad on August 	15,
1994, 	regarding his 	alleged 	"unsatisfactory interpersonal
relations and unprofessional 	behavior" 	in recent weeks. 	The
letter 	stated:
18

On Monday, 	August 	1st 	1994 	a cardiologist 	and
a 	cardiovascular 	technician 	came 	to 	me
stating 	that 	Mike 	Leptuch had 	confronted 	the
cardiologist 	in 	the patient 	care 	area
regarding 	the 	cardiologists 	actions 	during
the procedure 	(see attached). 	Both the
cardiologist 	and 	the 	cardiovascular
technician 	stated 	that 	the 	confrontation was
regarding procedures 	performed by Alan 	Vieths
that you perceive to be 	illegal. 	The
Cardiovascular technician was 	standing at 	the
patient bedside, 	approximately 15 	feet 	away,
and was 	able 	to hear your 	conversation with
the 	cardiologist. 	He was 	greatly concerned
about 	the 	possibility 	that 	the 	patient 	was
also 	able 	to hear the 	statements 	regarding
the perceived 	illegal 	behavior. 	Both of 	these
people 	stated 	that 	the 	confrontation was
presented 	in a 	loud, 	unprofessional 	and
aggressive manner. 	Confronting co-workers
with this 	type 	of 	information 	in a patient
care 	area with patients who 	are 	awake 	and
aware of 	their surroundings 	is 	serious
unprofessional behavior. 	The acceptable 	and
professional 	behavior 	is 	to present 	this 	type
of 	information outside 	the patient 	care 	area
and/or 	in an area with no patients present 	in
a non-threatening, 	beneficial manner.
On August 	3, 	1994, 	I was 	informed by Susan
Johnson, 	Department of Nursing, 	that 	she had
received a 	letter, 	addressed to Heidi 	Crooks,
from you dated July 22, 	1994, 	regarding work
policies 	in the Adult 	Cardiac 	Cath Lab. 	This
is 	the 	first 	that 	I 	had heard of 	this 	letter
and its 	contents. 	I 	received a copy of 	the
letter on August 	8, 	1994. 	Over two weeks
were 	lost 	in addressing these 	concerns 	due 	to
the 	delay 	in 	sending this 	letter 	to 	another
department 	before 	the 	concerns 	were 	reviewed
by management 	in Cardiodiagnostics. 	This 	is
inappropriate 	and unacceptable. 	The
appropriate lines of communication are 	1st 	-
Nurse Manager, 	2nd 	- Manager of
Cardiodiagnostics, 	3rd - Associate Director
of 	Cardiodiagnostics. 	All 	communication of
questions, 	opinions 	or concerns regarding the
Adult 	Cardiac 	Cath Lab and the
Cardiopulmonary 	Procedure 	Room 	should 	first
follow these lines. 	This will 	assist us 	in
the 	ability to expeditiously address 	your
questions and concerns. 	In fact, 	a review of
19

your work policy concerns 	was 	immediately
initiated 	after 	first 	being 	referred 	to
Associate 	Director Ridlehoover.
The 	letter went 	on to note 	that 	during the past 	five 	staff
meetings July 14, 	19, 	26, 	and August 2 and 11, 	1994, 	Leptuch
allegedly:
. 	. 	. 	initially sat 	in a corner away from the
main group 	and 	I 	have 	had to ask you 	to 	join
the group. 	Also during the 	two most 	recent
staff 	meetings 	you have 	consistently
displayed 	confrontational 	behavior 	towards 	me
and have been disruptive 	to the problem-
solving process. 	During the August 2, 	1994,
staff 	meeting you were 	confrontational 	on
every issue brought 	to 	the 	staffs 	attention.
For example, 	when I was discussing
communication skills you loudly stated, 	"I
want 	to clarify that 	- 	are you 	speaking
directly to me? 	Because 	if you are 	then 	I
want you to know..". 	Also, 	when I was
discussing 	room 	turnaround 	time 	you 	loudly
stated 	"This 	sounds 	like 	something 	coming
from Larry Yeatman, 	its not true! 	We work
damn hard here!". 	On August 	11, 	1994, 	at the
end of 	the 	staff 	meeting you 	stated 	that 	you
wanted to discuss 	lunch breaks, 	you felt 	they
should be 	one hour in duration, 	and that you
were not 	getting your 	15 minute breaks. 	My
response was we 	then need to work on you
getting your breaks. 	You 	then 	loudly stated
"Well 	then, 	you will,be hearing from the
Union about 	this!". 	When my further response
was 	that 	this was 	fine 	- 	I would discuss 	the
issue with the Union when they called, 	you
stated 	in a 	loud voice 	"They wil
calling!". 	These 	are 	all 	unsatisfactor	
- l 	be y
interpersonal 	relations 	and unprofessional
behavior. 	During staff meetings 	I 	expect you
to 	join the 	group and 	interact 	in a positive,
beneficial 	manner 	in order to 	address 	issues
brought 	to the groups attention. 	If you have
an 	item 	that 	you Would 	like 	discussed during
these meetings, 	you should speak to me prior
to 	the meeting 	so 	that 	I 	may add the 	item to
the agenda.
In addition to your conduct at meetings, 	I
have 	also 	been 	advised by 	another 	co-worker
20

of 	additional 	unprofessional 	comments 	you
have made 	about me 	that 	are 	disruptive 	to 	the
work group. 	Specifically you 	commented that
"she 	is walking into a hornets nest" 	and 	"she
doesn't 	know who 	she's 	dealing with" 	(see
attached). 	This is intimidating and
disruptive to the team. 	Comments of this
nature 	to 	coworkers while 	in the work area
should be 	discontinued. 	[Emphasis 	in
original.]
Schraad 	invited Leptuch 	to 	consult 	with the 	staff 	and
faculty service 	center for 	free 	counseling. 	She 	then wrote:
Please be 	aware 	that 	immediate 	and sustained
improvement 	is necessary. 	It 	is expected that
your views 	and opinions 	be presented 	so 	that
the 	impact 	is useful 	in building and
enhancing 	the 	team 	instead 	of 	creating
divisiveness, 	disruption, 	and negatively
impacting 	the 	team.
Please be warned, 	that 	further behavior of
the 	type 	described above 	could result 	in
further 	disciplinary action up 	to 	and
including dismissal. 	You have 	the right 	to
request 	a 	review of 	this 	action 	in accordance
with the 	provision of 	the 	collective
bargaining agreement 	in effect 	between the
University of 	California 	and 	CNA.
Yeatman testified that 	this 	letter was 	in part 	caused by
him. 	Dr. 	Sherman spoke to Yeatman, 	after the patient 	incident.
Yeatman testified that Dr. 	Sherman was 	"livid," 	and told him that
it was 	completely inappropriate.23 Dr. 	Sherman wanted Yeatman to
do 	something about 	it. 	Yeatman said Dr. 	Sherman told him he was
very close 	to the patient, 	and the patient 	could hear.24
23Ridlehoover 	testified 	that 	she 	spoke 	with 	Sherman 	and 	he
mentioned only a 	fluoroscopy and not 	sheath 	incident.
^Yeatman's 	testimony 	is 	contradicted not 	only by 	charging
party's evidence, 	but CVT Allen Vieths' 	(Vieths) 	written
statement 	as well. 	Charging party exhibit no. 	11 	is a diagram
drawn by Leptuch 	showing 	Sherman at 	the 	extreme 	end of 	the 	inside
21

Yeatman 	called Schraad and asked her 	to 	take 	the 	appropriate
steps. 	Schraad did not 	testify at 	the hearing. 	She did not
secure a written statement 	from Dr. 	Sherman, 	nor did she
interview Leptuch or Sanchez 	about 	the 	incident.
Both Leptuch and Sanchez 	testified about 	the 	incident. 	The
patient 	was 	undergoing a 	rotoblade procedure 	and Leptuch was 	the
RN assigned. 	CVT Allen Vieths 	(Vieths) 	had replaced Lyman who
was 	absent 	for lunch. 	Dr. 	Sherman was 	reviewing the videos 	of
the patient 	in the 	control 	room. 	Leptuch was 	also 	in the 	control
room. 	They were 	inside 	the 	control 	booth on the 	other 	side 	of
the 	glass 	(leaded about 	1/2 	inch thick) 	separating 	the 	control
both 	from the 	lab. 	The 	room is 	noisy from the power hum of 	the
equipment.
Vieths had asked Dr. 	Sherman 	if 	he wanted Vieths 	to 	suture
the 	sheaths.25 Dr. 	Sherman replied in the 	affirmative. 	Leptuch
told Sherman that was 	illegal. 	Dr. 	Sherman said he did not 	think
it was 	illegal but 	he would ask Schraad. 	Vieths 	sutured the
sheaths.
of the control booth. 	Next to him is Sanchez, 	and then Leptuch.
At 	the door of 	the 	control 	booth is Vieths. 	The patient was
situated 	in 	the 	laboratory such 	that 	his 	feet 	were 	closer 	to 	the
control 	room than the head, 	which was 	farthest 	from the 	control
room. 	Leptuch and Sanchez 	both testified that 	this was 	the
physical 	setup, 	and that 	Sherman was 	in the control 	room.
Veith's 	statement, 	likewise, 	asserts that both Sherman and
Leptuch were 	in the 	control 	room.
^Leptuch's 	drawing has Vieths 	at 	or near the 	door of 	the
control booth. 	Sanchez 	said Vieths was nearer the patient, 	but
he, 	Sherman and Leptuch were all 	in the 	control booth.
22

According to Leptuch, 	Dr. 	Sherman did not 	state 	that 	he was
upset. 	In fact, 	Leptuch testified that Dr. 	Sherman called him
personally after Leptuch had received the August 	15 	letter
expressing disavowal 	of 	the 	letter.
During the procedure 	Sanchez 	was 	in the 	control 	room. 	He
confirmed that 	Leptuch and Dr. 	Sherman were both 	in 	the 	control
room. 	Sanchez 	testified that 	Leptuch expressed his 	concern 	and
did not 	appear to be 	angry. 	He 	spoke 	in his normal 	tone which is
louder than 	Sanchez. 	Leptuch did not 	make 	any unprofessional
statements to Dr. 	Sherman, 	and his manner could not be
characterized as 	aggressive. 	Sanchez 	said Leptuch uses 	his voice
"in order 	to 	get 	their attention and make 	sure 	they are paying
attention to his 	request."
Sanchez 	described the 	control 	room and testified that 	he
speaks 	to 	the 	attending physician 	in 	the 	laboratory by way of 	a
microphone 	with 	a 	switch 	that 	must 	be 	activated by pressing 	a
bar. 	Without 	the 	intercom system, 	he 	cannot hear what was 	said
by one 	standing at 	the head of 	the patient. 	Sanchez 	said he 	has
never been 	concerned about 	the patient 	hearing what 	was 	said 	in
the 	control 	room because 	of 	the 	"ambient 	noise 	from the
equipment."
Moreover, 	patients 	are usually sedated during the procedure.
In addition, 	the particular procedure 	involved 	included a
dual 	cooling 	system 	creating 	noise 	behind 	and under 	the 	patient's
head. 	Even the doctor, 	positioned at 	the 	level 	of the patient's
23

hip, 	said Sanchez, 	had to 	speak loud to the patient 	to get 	him to
respond.
Regarding the matter of 	Leptuch's behavior at meetings,
Sanchez 	attended meetings 	in 	summer of 	1994 	and he 	testified 	that
he 	did not 	see 	Leptuch engage 	in 	confrontational 	or disruptive
behavior, 	or make 	loud outbursts. 	Sanchez 	said Leptuch was
normal 	and articulated concerns 	about 	CVT activities. 	Sanchez
said Leptuch 	is 	very clear about 	his 	points 	and did not 	mince
words. 	Leptuch is 	"very short 	and concise," 	said Sanchez.
Regarding 	Schraad's 	criticism of 	Leptuch going outside 	of
command, 	Leptuch said he 	had brought 	the matters 	up at 	staff
meetings 	numerous 	times. 	Regarding Schraad's 	contention that 	he
was 	confrontational, 	Leptuch thought 	any criticism of 	the 	lab was
viewed by 	Schraad 	as 	confrontational.26
Leptuch testified that 	as 	an RN it 	was 	his 	obligation to
advocate 	on behalf 	of 	the patient, 	and protest 	unlicensed people
from working on the patient. 	It was part 	of his 	licensure 	that
he 	is 	supposed to advocate.
Nurses 	employed at 	UC Los Angeles 	are 	required to maintain 	a
current 	license as an RN, 	under the auspices of 	the State
Department 	of 	Consumer Affairs, 	Board of Registered Nursing. 	It
26As pointed out 	by CNA in closing briefs, 	the University
presented no 	direct 	evidence 	of 	Leptuch's 	behavior 	in meetings
embraced 	in 	Schraad's memo. 	Although Ridlehoover 	and Yeatman
testified, 	neither testified about 	attendance at 	any of 	these
meetings. 	The obvious percipient potential witness, 	Schraad, 	did
not 	testify nor was 	any explanation 	for 	her absence 	offered.
24

is 	undisputed 	that 	the 	license 	could be 	jeopardized 	if 	the 	nurse
failed, 	among other things, 	to serve as the patient's advocate.
Among 	standards 	of 	competent 	performance 	set 	for 	in the
California Administrative Code, 	Title 16, 	Chapter 14, 	section
1443.5(6) 	is the following:
. 	. 	. Acts as the client's advocate, 	as
circumstances 	require, 	by initiating action
to 	improve 	health care 	or to 	change 	decisions
or activities 	which are 	against 	the 	interests
or wishes 	of 	the client, 	and by giving the
client 	the 	opportunity to make 	informed
decisions 	about 	health care before 	it 	is
provided.
Although Leptuch 	said the August 	15 	letter 	"stilled" 	his
outspokenness 	about 	conditions 	at 	the ACCL, 	he did file 	a
grievance on August 	19, 	just 	four days 	from the date of 	the
warning 	letter. 	This 	grievance 	charged that unlicensed 	staff
were giving medicine 	intraarterially, 	and 	"drawing up" 	drugs.
The next month, 	on September 	19, 	Leptuch and four other RNs
co-signed 	a 	letter 	seeking 	assistance 	from personnel 	in 	being
relocated to other hospital 	work areas. 	The 	letter cited the
conditions 	of 	work 	in the ACCL and complained of 	the 	change
allegedly brought 	about 	by Schraad's 	arrival.
Leptuch 	filed a grievance 	on the August 	15 	letter. 	After an
arbitration hearing, 	UC was 	ordered to 	remove 	the 	letter 	from
Leptuch's personnel 	file.
Leptuch was 	laid off 	in December of 	1994.
Management 	Rights 	Clause
Article 	33 	of 	the memorandum of understanding 	(MOU) 	provides:
25

A. 	Management 	of 	the University is vested
exclusively in the University. 	The parties
agree 	that 	all 	rights 	not 	specifically
granted 	in 	this Agreement 	are 	reserved 	solely
to the University. 	Except 	as 	otherwise
provided in this Agreement, 	the Association
agrees 	that 	the University has 	the 	right 	to
make 	and 	implement 	decisions 	relating 	to
areas 	including but 	not 	limited 	to 	those
enumerated below. 	Although 	the 	University
may upon 	request 	consult 	with 	the Association
concerning the 	following areas, 	the
University 	is 	not 	obligated to bargain with
the Association as 	to 	such areas 	during the
term of 	this Agreement.
Enumerated examples 	in the MOU are:
1. 	to establish the University's missions,
programs, objectives, activities, and
priorities;
2. 	to plan, 	direct 	and control 	the use of
resources 	to 	achieve 	the 	University's
missions, programs, objectives, activities,
and priorities;
4. 	to 	establish and administer procedures,
rules 	and regulations 	and determine 	the
methods 	and means 	by which operations 	are
carried on;
5. 	to 	introduce new or 	improved methods,
programs, 	equipment, 	or facilities or change
or eliminate existing methods, 	equipment, 	or
facilities;
6. 	to determine 	the 	location or relocation,
reorganization, 	or discontinuance of
operation; 	to determine where Nurses 	shall
work; 	or subcontract 	all 	or any portion of
any operation;
7. 	to assign and schedule work; 	to determine
the need 	for overtime;
11. 	to establish, 	modify, 	and enforce
standards of performance, 	conduct, 	and safety
26

for Nurses; 	and to determine 	the process by
which Nurse performance 	is 	evaluated;
14. 	to determine and modify job
classifications 	and 	job 	descriptions.
This 	clause 	has been on the 	table 	numerous 	times without
revision. 	The MOU does not 	contain a 	"work preservation" 	clause.
The 	Demand 	to Negotiate And Request 	for 	Information
On August 	5, 	Peggy Skotnes, 	CNA labor representative, 	wrote
to Maure Gardner 	(Gardner), 	manager of 	labor relations 	for UC,
regarding 	the 	alleged transfer of 	bargaining unit 	work 	to 	CVTs
without 	notice 	to 	CNA or 	affording 	it 	an opportunity to 	negotiate
the 	impact. 	CNA also expressed concern about 	the 	impact 	on
patient 	care. 	It 	then demanded UC 	cease 	and desist 	from
unilaterally 	transferring 	RN work 	to 	non-RN personnel 	and 	asked
for 	certain 	information. 	The 	information requested was:
1. 	Copies 	of all 	job descriptions or other
documents 	containing 	or 	reflecting duties 	to
be 	performed 	by newly 	hired 	Cardiovascular
Techs;
2. 	Copies of RN job descriptions;
3. 	A description of 	any modification 	in
RN job 	duties 	or responsibilities 	that
will 	occur or be necessary as 	a 	result 	of
the 	introduction of 	the 	Cardiovascular
Techs . 	. 	. ;
CNA 	also 	requested 	a 	complete 	description 	of 	RN obligations
regarding supervision, 	direction, 	monitoring, 	training, 	quality
control 	or other 	responsibility 	for 	the performance 	of 	duties 	to
be 	transferred to the CVTs, 	and copies of 	communications with
27

specified outside 	agencies 	regarding planned use 	of 	CVTs 	in 	the
lab.
Gardner responded to Skotnes' 	demand on September 14, 	1994.
UC's position was 	that 	the ACCL 	duties 	were 	not 	exclusive 	to RNs
and that 	any of 	the 	staff performed the 	tasks. 	Further, 	the
University relied upon the management 	rights article 	(33),
particularly, 	the University's 	rights 	to 	"establish and manage
its methods 	of 	operation and use 	of 	the work 	force was 	essential
to maintaining an effective, 	efficient 	and economic 	system of
health 	care 	delivery."
Information on 	job descriptions 	came 	to Gardner's 	office 	in
mid-September and 	she 	looked at 	them 	in mid-October. 	Gardner
forwarded the 	job descriptions 	to CNA in 	late November. 	Although
these documents were marked 	"draft" 	they were the 	same 	ones 	sent
in 	late November. 	Final 	job descriptions 	were 	sent 	to 	CNA on
February 17, 	1995.
The parties 	submitted the 	following 	stipulations:
1. 	The University never gave notice 	to the
California Nurses Association 	("CNA") 	nor did
it 	meet 	and confer with CNA concerning 	the
use of 	[CVT's] 	in the 	[ACCL] 	or the 4 West
Cardiopulmonary Procedure 	Room at 	the 	UCLA-
Medical 	Center at 	any material 	time. 	The
parties 	disagree 	as 	to whether the University
had an obligation to give notice 	to, 	or meet
and confer with, 	CNA concerning the use 	of
CVT's.
2. 	CNA first 	raised the 	issue 	of 	alleged
changes 	in the 	duties 	assigned to RN's 	in 	the
[ACCL] 	or the 4 West 	Procedure Room at 	the
UCLA Medical 	Center 	in a 	letter 	from Labor
Representative 	Peggy Skotnes 	to Ms. 	Maure
Gardner, 	the Manager of Labor Relations,
dated August 5, 1994. 	. 	. 	.
28

3. 	Ms. 	Gardner, 	on behalf 	of 	the Medical
Center, 	first 	responded to 	Skotnes's
August 	5, 	1994 	letter in a 	letter dated
September 14, 1994. 	. 	. 	.
4. 	The documents 	referred to 	in Ms.
Gardner's September 14, 	1994 	letter as being
"forwarded under separate 	cover" 	were 	sent 	to
CNA in a 	fax transmission on November 	28,
1994 	and in a 	letter dated February 17,
1995. . . .
ISSUES
The 	issues 	in this 	case 	are whether the University violated
the HEERA when it: 	(1) 	unilaterally commenced hiring CVTs to
perform RN duties; 	(2) 	refused to meet 	and confer with CNA about
the performance of 	certain tasks by CVTs; 	(3) 	failed or refused
to provide 	information requested by CNA; 	or 	(4) 	issued Leptuch a
letter of warning 	in retaliation 	for his 	activities?
CONCLUSIONS 	OF LAW
The 	Statute 	of 	Limitations
The 	University urges 	the 	complaint 	be 	dismissed on 	the
grounds 	of 	the 	statute of 	limitations. 	Section 3563.2(a)
provides 	that 	the 	PERB may not 	issue 	a 	complaint 	"in respect 	of
any charge 	based upon 	an 	alleged unfair practice 	occurring more
than six months prior to 	the 	filing of 	the 	charge."
In this case, 	the charge was filed on December 9, 	1994.
Hence, 	to be 	timely filed, 	the matters 	complained of must 	have
occurred on or after June 	9, 	1994.
The 	University argues 	that 	the 	first 	two CVTs 	were 	hired in
February and March, 	eight 	and nine months before 	CNA filed 	its
charge. 	Leptuch and other nurses were 	in cross-training and were
29

aware of the employment of CVTs. 	In addition, 	urges UC, 	Leptuch
filed a grievance 	in the 	spring of 	1995, 	with a copy to CNA.
Hence, 	CNA was 	involved in the ACCL.
The 	University relies 	on Eureka 	City School 	District 	(1985)
PERB Decision No. 	481 	(Eureka), 	where PERB stated:
Thus, 	in a case such as this, 	in order to
establish a prima 	facie 	violation of 	the Act
based on 	an unlawful 	transfer of 	unit 	work
theory, 	the Association 	should have 	filed 	its
charge 	at 	the 	time 	that 	nonunit 	employees
first 	began performing unit work, 	not 	long
after 	such a practice 	became 	established.
[Emphasis 	in original.]
However, 	an additional element, 	knowledge of the change, 	is
also 	required to 	effectuate 	commencement 	of 	the 	statute 	of
limitations. 	In a case 	involving the University,27 PERB 	stated
the rule thus:
. 	. 	. 	The statute of limitations begins to
run on the 	date 	the 	charging party has 	actual
or 	constructive 	notice 	of 	the 	respondent's
clear 	intent 	to 	implement 	a unilateral 	change
in policy, 	providing that 	nothing 	subsequent
to that 	date evinces 	a wavering of 	that
i n t e n t . . . .
It 	is not 	disputed that 	the University did not 	give 	notice
to CNA about 	the 	appointment 	of 	CVTs 	to the ACCL. 	The UC
stipulated that 	no notice 	was 	given 	to 	CNA about 	the 	appointment
of 	CVTs.
UC 	argues 	that 	Leptuch and others 	knew about 	the 	use 	of 	CVTs
as 	they were 	in 	cross 	training and 	saw CVTs 	performing work.
27The Regents of 	the University of California 	(1990) 	PERB
Decision No. 	826-H.
30

As 	charging party points 	out, 	PERB has 	held that 	notice 	to
the 	exclusive 	representative will 	not 	be 	imputed because 	a
substantial 	number of 	employees 	were 	affected by the 	change.28
The 	fact 	that 	nurses 	worked 	in 	the ACCL and 	saw CVTs 	employed
there 	does 	not 	impart 	awareness 	to 	CNA that 	the University has
adopted a policy of 	employing CVTs 	to do RN work. 	PERB 	has 	held
that 	notice must 	be 	acquired by an official 	of 	the 	employee
organization who has 	the 	authority to 	act 	on behalf 	of 	the
organization. 	(Victor Valley Union High 	School 	District 	(1986)
PERB Decision No. 	565.) 	There 	is no 	showing that 	the nurses were
agents 	of 	CNA. 	(See 	Los Angeles 	Community College 	District
(1982) 	PERB Decision No. 	252; 	Regents of the University of
California 	(1991) 	PERB Decision No. 	907-H.)
The 	fact 	that 	Leptuch 	filed a grievance with a 	copy to 	CNA
does not 	give 	rise 	to notice 	that 	the ACCL had engaged 	in a
. policy determination to hire CVTs. 	There 	is no basis 	for
concluding 	the 	CNA 	should have 	known 	that 	the 	employer had
adopted an appointments policy to hire 	CVTs.
In addition, 	the other two 	significant 	aspects 	of 	this
unfair practice 	complaint 	are 	the 	refusal 	to provide 	information
and the 	letter of warning 	issued to Leptuch, 	both of which
occurred after June 5, 	1994.
Accordingly, 	the University's 	contention that 	the unfair
practice 	charge 	is 	time-barred 	is 	rejected.
. .. . .
28Victor Valley Community College District 	(1986) 	PERB
Decision No. 	570.
31

The 	Unilateral 	Change
An 	employer's 	unilateral 	change 	in terms 	and 	conditions 	of
employment within the 	scope of 	representation 	is, 	absent 	a valid
defense, 	a per se 	refusal 	to negotiate 	and violative of HEERA
section 3571 (c). 	(Regents of 	the University of California 	(1985)
PERB Decision No. 	520-H; 	Pajaro Valley Unified School District
(1978) 	PERB Decision No. 	51.)
To prevail 	on a complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	that
(1) 	the 	employer breached or altered the party's written
agreement 	or own established past practice; 	(2) 	such action was
taken without 	giving the 	exclusive 	representative 	notice 	or an
opportunity to bargain over the change; 	(3) 	the change 	is not
merely an 	isolated breach of 	the 	contract, 	but 	amounts 	to a
change 	of policy 	(i.e., 	having a generalized effect 	or continuing
impact upon bargaining unit members' 	terms 	and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within the 	scope 	of 	representation. 	(Grant 	Joint 	Union High
School District 	(1982) 	PERB Decision No. 	196; 	Pajaro Valley
Unified School District, 	supra, 	PERB Decision No. 	51; 	Davis
Unified School District, 	et al. 	(1980) 	PERB Decision No. 	116.)
The 	Transfer
. ..
In Eureka, 	PERB stated:
. 	. 	. 	In our view, 	in order to prevail on a
unilateral 	transfer of work theory, 	the
charging party must 	establish, 	as 	a threshold
matter, 	that duties were, 	in fact,
transferred out of the unit; 	that 	is, 	that
unit 	employees 	ceased 	to perform work which
32

they 	had previously performed 	or 	that 	nonunit
employees 	began 	to perform duties previously
performed 	exclusively by unit 	employees.
However, 	where, 	as here, 	unit and nonunit
employees 	have 	traditionally 	had 	overlapping
duties, 	an employer does not violate 	its duty
to negotiate 	in good 	faith merely by
increasing 	the 	quantity of 	work 	which nonunit
employees 	perform and 	decreasing 	the 	quantity
of work which unit 	employees perform. 	[Fn.
omitted.]
The 	University argues 	that 	since 	other employees 	outside 	of
the 	bargaining unit 	performed RN duties 	before 	the 	appointment 	of
CVTs, 	RNs did not 	have a claim of 	exclusivity of performance of
those 	duties 	required by Eureka.
The 	facts 	here 	are 	similar to Eureka, 	but 	not 	altogether the
same. 	The 	findings 	suggest 	that 	some 	of 	the duties performed by
RNs may have been performed by others, 	but 	at 	no 	time were 	those
duties ever performed by CVTs. 	CVTs 	did not 	exist 	on the
employee 	roster at 	the ACCL prior to spring 1994. 	Whereas, 	in
Eureka, 	a teacher's aide assignment was expanded, 	that 	is to say,
she 	did more 	of 	the work 	she 	did before 	the 	complained-of 	action,
no 	such expansion took place 	here. 	Neither the 	laboratory
technician nor 	the 	x-ray technologist 	increased performance 	of
the amount of RN duties. 	Moreover, 	there 	is no showing that
either 	the 	attending physician nor 	the 	fellow took 	on 	increased
RN duties. 	In fact, 	the record shows 	that 	there was a virtual
fade out 	of 	fellows working in the 	laboratories. 	They were, 	in
effect, 	replaced by a new class 	of 	employees not previously
employed by the University. 	Hence, 	unlike 	the 	situation in
Eureka, 	where 	incumbent 	nonunit 	employees were 	assigned an
33

increase 	in duties previously performed, 	here, 	no 	incumbent
employees 	experienced such 	increase 	in duties 	previously
performed, 	but 	rather there was 	introduced a new class 	of
employees, 	CVT's, 	who were assigned RN duties.29
Moreover, 	the 	record does not 	establish that 	particular
duties were 	traditionally overlapping. 	That 	is 	to 	say, 	only on
rare 	occasions 	did 	the 	laboratory technician or 	the 	radiation
technologist 	ever 	set 	up 	the 	catherization table. 	This 	task was
primarily the 	duty of 	the RN. 	Schraad wrote 	in her chronology
book that 	she 	advised Leptuch in September of 	1994, 	that 	setting
up tables was part 	of his duties.
Positioning the patient, 	including moving the patient 	onto
the 	table was 	also primarily the duty of 	the RN, 	and was not
traditionally overlapping with 	other 	employees.
Preparation of 	the operative site, 	washing, 	shaving the
groin area, 	hygienic washing and 	setting up of 	IV lines 	were 	not
traditionally overlapping duties. 	RNs 	did these as primary
tasks. 	Another duty 	found not 	traditionally overlapping was 	the
performance of 	the blood clotting time 	(ACT). 	Only RNs performed
this 	task prior to the hiring of 	CVTs who then commenced
conducting 	the 	test.
Thus, 	quite apart 	from the 	fact 	that 	CVTs were not 	among
employees 	who might 	have 	previously performed some 	of 	the
29UC 	attempted 	to 	demonstrate 	that 	non-licensed personnel 	in
other hospital 	arenas perform overlapping duties with nurses.
This 	argument 	is 	not 	relevant 	nor persuasive 	for purposes 	of 	the
ACCL.
34

disputed duties, 	the 	record demonstrates 	that 	under the 	second
aspect of 	the Eureka test, 	there were duties done by RNs not
traditionally 	overlapping with 	other 	employees.
I 	conclude 	that 	this 	case does 	not 	fall within the 	ruling of
Eureka, 	and that 	CNA established that 	the UC transferred
bargaining unit 	work 	to 	employees 	outside 	of 	the 	bargaining unit
in violation of 	its 	obligation 	to give 	CNA notice 	and an
opportunity 	to meet 	and confer over 	the 	issue.
The 	University raises 	defenses 	that 	include business
necessity and waiver as 	additional 	defenses. 	They will 	be
considered 	separately.
Business 	Necessity
The 	University contends 	that 	employment 	of 	CVTs 	was
justified by the 	devastating 	emergency of 	the 	earthquake. 	As 	the
only functioning hospital 	in the West 	Los Angeles 	area, 	it 	had to
hire 	the 	CVTs 	to assist 	the 	increase 	in patients 	serviced by the
ACCL.
In a 	case 	of 	first 	impression created by the 	effects 	of 	tax
revenue 	changes 	caused by Proposition 	13,30 PERB 	stated:
Even when a District 	is 	in 	fact 	confronted by
an economic 	reversal 	of unknown proportions,
it may not 	take unilateral 	action on matters
within the 	scope of 	representation, 	but must
bring 	its 	concerns 	about 	these matters 	to 	the
negotiating table. 	. 	. 	.
In Oakland Unified School 	District 	(1994) 	PERB Decision
No. 	1045, 	PERB adopted an administrative law judge's 	(ALJ) 	review
30San Francisco 	Community College 	District 	(1979) 	PERB
Decision No. 	105.
35

on the defense 	of 	necessity. 	The ALJ first 	noted that 	under
Calexico Unified School 	District 	(1983) 	PERB Decision No. 	357
(Calexico), 	the employer must show:
. 	. 	. 	an actual financial emergency which
leaves no 	real 	alternative 	to 	the 	action
taken and allows 	no 	time 	for meaningful
negotiations before 	taking action. 	[Fn.
omitted.]
The 	ALJ 	then 	covered 	Compton 	Community 	College 	District
(1989) 	PERB Decision No. 	720, 	where PERB held that dire 	financial
straits 	of 	the 	district 	did not 	prevent 	the 	possibility of
formulation of a budget without unilateral 	cuts, 	thus, 	the
district 	had not 	established 	a 	necessity defense.
It 	cannot 	be 	disputed that 	an earthquake 	capable 	of 	closing
two hospitals was 	not 	anticipated and devastating. 	The
University's 	responses 	no 	doubt 	could be 	called 	emergency
responses. 	Yet, 	the employment of 	the CVTs did not 	take on the
emergency response 	(about 	which there 	is 	no evidence) 	that was
sure 	to 	have 	occurred 	in 	the 	general 	hospital 	non-specialized
areas.
There 	is 	no 	showing that 	RNs were not 	available 	for hire 	to
assist ACCL meet 	the 	increased patient 	influx. 	There 	is 	no
showing 	the 	UC was 	faced with 	a 	financial 	emergency of 	paying RNs
as opposed to CVTs.
Rather, 	in discussions with physicians 	from the 	closed
hospitals 	desiring 	to bring 	their patients 	to ACCL UC 	learned
that 	CVTs 	would be 	available 	to 	assist 	the 	laboratory work.
36

The 	emergency nature 	of 	the 	employment 	of 	CVTs 	is 	not
supported by the 	record. 	UC 	first 	took 	steps 	to hire 	CVT Beach
on February 7, 	1994, 	nearly three weeks after the earthquake.
Lyman was not 	hired until 	three weeks 	later, 	nearly six weeks
after the 	earthquake. 	Requisitions 	for additional 	CVT 	staffing
did not 	appear until 	June, 	then August 	and then October of 	1994.
This 	time 	schedule 	did not 	preclude meeting and conferring with
CNA on 	the 	impact 	of 	hiring CVTs 	on bargaining unit 	work.
Even prior to 	the 	earthquake, 	UC knew that 	fellows would be
withdrawing 	from the ACCL. 	They continued to work 	in the 	lab
until 	sometime 	in the 	summer of 	1994. 	At 	the 	time UC knew of 	the
reduction in fellow staffing, 	prior to the earthquake, 	it 	could
have put 	CNA on notice 	and provided an opportunity to meet 	and
confer.
Finally, 	the University continued to 	employ CVTs 	after the
impact 	of 	the earthquake had subsided. 	After the 	St. 	Johns 	and
Santa Monica hospitals reopened, 	and there was 	no 	longer pressure
on UC 	to 	allow outside physicians 	or patients use 	the ACCL, 	UC
continued 	to 	employ CVTs.
For all 	the 	forgoing reasons, 	I 	conclude that UC has not met
the burden required by Calexico, 	to 	show financial 	emergency,
justifying bypassing notice 	to 	CNA or 	the 	opportunity to meet 	and
confer over the 	impact of 	CVTs performing nursing duties.
Waiver
37

The University contends 	that 	assignment 	of 	these 	duties 	to a
new non-nursing 	classification outside 	of 	the 	bargaining unit 	is
within the 	MOU management 	rights 	clause.
UC contends 	that 	its 	rights 	to: 	establish its missions 	and
priorities; 	to direct the use of resources 	to achieve those
priorities; 	to determine 	the methods 	and means by which
operations 	are 	to be 	carried on; 	to change or eliminate existing
methods 	[of operation]; 	to assign and schedule work; 	to establish
the 	size, 	composition and qualifications of the work force; 	to
establish, 	modify and enforce 	standards 	of 	safety for nurses; 	to
discipline nurses 	for 	failure 	to perform satisfactorily; 	and to
determine 	and modify 	job 	classifications 	and job 	descriptions;
all 	embrace 	the 	authority to 	transfer to 	CVTs 	duties 	done by RNs.
The University's authority, 	it urges, 	is essential and
requires 	inherent 	flexibility to determine 	methods 	of 	operation,
utilization 	of 	the work 	force 	to maintain an effective 	and
economic 	system of 	health care delivery. 	The MOU is 	designed to
be 	an 	integral 	part 	of UC Los Angeles 	Medical 	Center's 	mission of
providing health care, 	teaching and research 	- 	not 	a 	stumbling
block. 	Further, 	the 	fact 	that 	the agreement does not 	contain a
work preservation 	clause 	further 	enhances 	its 	flexibility.
Here, 	argues the University, 	it adjusted its priorities by
meeting the 	community needs 	as 	a result 	of 	the 	earthquake. 	To
that 	end 	it 	was 	entitled to 	change 	existing methods 	of 	operation
including a 	different 	approach to work the procedures 	as 	in the
ACCL, 	such as 	redistributing and assigning work as 	called 	for.
38

The University exercised 	its 	right 	to 	establish 	the 	qualification
of 	the work 	force 	in that 	it 	determined to hire 	CVTs 	who had
appropriate 	training and experience 	to work at ACCL. 	Finally, 	it
exercised 	its 	rights 	to determine 	the 	job 	classification of 	CVTs
and to develop 	job descriptions 	for 	the 	classification.
Accordingly, 	argues UC, 	CNA, 	by the management rights clause, 	has
waived its 	right 	to 	complain about 	the University's 	action.
Waiver of 	statutory rights must 	be 	"clear and unmistakable"
and will 	not 	be 	lightly 	inferred. 	(Amador Valley Joint 	Union
High School District 	(1978) 	PERB Decision No. 	74; 	Placentia
Unified School District 	(1986) 	PERB Decision No. 	595.)
A waiver 	of 	bargaining rights 	is 	determined by examining 	the
express 	contractual 	terms 	as well 	as 	evidence 	of 	negotiating
history to 	ascertain whether 	there 	has 	been a 	conscious
abandonment 	of 	the 	right 	to bargain over a particular 	subject.
(Palo Verde Unified School District 	(1983) 	PERB Decision No.
321.)
A generally-worded management 	rights 	clause 	will 	not 	be
construed as 	a waiver of 	statutory bargaining rights. 	(San
Jacinto Unified School District 	(1994) 	PERB Decision No. 	1078.)
Taking 	each of 	the 	contentions 	raised by UC within 	the
management 	rights 	clause 	in review does not present 	a 	case 	for
clear and unmistakable waiver of 	the 	right 	to bargaining unit
work.
The UC's 	right 	to establish 	its missions 	and priorities 	or
to direct 	the use 	of 	resources 	to achieve 	those priorities 	does
39

not 	address 	the 	question of 	transferring bargaining unit 	work
from one unit 	to another, 	where the 	same patient 	service 	is being
rendered, 	but 	different personnel 	are being employed to render
that 	service. 	If 	it 	chose 	to close 	the ACCL or to redirect 	the
function of 	the ACCL, 	such decision might 	be 	embraced within
these provisos. 	The University had established the mission of
operating the ACCL 	and directed 	the 	use 	of 	RNs 	to perform
portions of 	the patient 	service. 	Nothing in its powers 	on
mission or priorities 	allows 	the UC 	to 	change 	that 	mission or
resources 	without 	giving 	CNA its 	statutory right 	to meet 	and
confer 	over 	changes 	directly 	impacting bargaining unit 	work.
Likewise, 	the University's 	right 	to determine 	the methods
and means 	by which operations 	are 	to be 	carried on or 	to 	change
or eliminate 	existing methods 	(of 	operation) 	does 	not 	enable UC
to maintain operations but 	change 	personnel 	to perform those
operations. 	Nor does 	the 	authority to 	change or eliminate
methods 	of 	operation address 	transferring bargaining unit 	work.
Clearly, 	UC has 	the 	authority to 	change 	the method of 	heart
diagnosis or to eliminate present methods 	of 	such procedure, 	but
that does not 	embrace the matter of 	changing personnel, 	once
established, 	to perform the 	same procedures where 	an exclusive
representative 	is 	in place 	representing the personnel.
The 	right 	to 	"assign and schedule work" 	or 	"to establish the
size, 	composition and qualifications 	of 	the work force" 	does not
embrace bargaining unit 	work 	transfers 	in derogation of 	an
exclusive 	representative's 	rights 	to 	represent 	its members
40

concerning work duties. 	The 	right 	to assign or schedule work, 	or
the right 	to establish the 	size, 	composition and/or
qualifications 	of 	the work 	force 	is 	not 	impeded by requiring UC
to give notice 	to 	and afford CNA an opportunity to meet 	and
confer about 	the 	transfer of 	bargaining unit 	work 	from the 	unit
represented by CNA to 	a 	classification of 	employees 	outside 	of
the bargaining unit.
The 	rights 	pertaining to 	standards 	of 	safety 	for nurses 	or
to 	discipline 	nurses 	for 	failure 	to perform satisfactorily 	is
totally unrelated 	to 	transfer of 	bargaining unit 	work.
The 	right 	to 	"determine 	and modify job classifications 	and
job descriptions" 	does not 	relate 	to 	transfer of bargaining unit
work. 	UC may have 	the power to 	delete 	duties 	of 	nurses within
their 	job descriptions under this provision, 	but 	such power does
not 	extend 	to 	recreating 	another 	classification 	of 	employees
outside 	of 	the bargaining unit 	to perform those 	same 	duties.
The management 	rights provisions do not, 	in their totality,
or components, 	manifest 	a 	"clear and unmistakable waiver" 	of
CNA's 	rights 	to bargain 	a proposed 	transfer of 	bargaining unit
work. 	Hence, 	the UC arguments 	in this regard are rejected.
The 	assignment 	of RN duties 	to non-unit 	employees 	in 	this
instance was 	done without 	notice 	to 	CNA, 	nor did CNA have 	an
opportunity to meet 	and confer about 	the 	decision or 	its 	effects.
This was 	a violation of 	the University's 	duty to meet 	and confer
in good faith required by section 3571(c) . 	This 	same conduct
also 	interfered with 	the 	RN's 	rights 	to 	have 	CNA represent 	them
41

in their employment 	relations with their employer, 	a violation of
section 3571(a). 	There was 	no evidence 	that 	any statutory right
of 	CNA was 	denied by the 	University's 	unilateral 	transfer of
bargaining unit work, 	the 	allegation of 	a violation of 	section
3571 (b) 	must be dismissed.31
The 	Information Request
The 	University 	claims 	that 	it 	provided all 	information
requested when 	it became 	available. 	When CNA requested CVT and
RN job descriptions; 	modifications of RN duties 	and
communications with outside 	agencies 	concerning use 	of 	CVTs,32 no
such documents 	existed.
UC also refers 	to a 	"breakdown" 	in communications between UC
and CNA, 	although there 	is 	no evidence 	in the 	record to 	support
such an argument.
The 	evidence 	shows 	that 	at 	the 	time of 	the 	request, 	the UC
was developing job descriptions 	for the 	CVTs. 	This 	commenced
with the 	draft 	from Yeatman to Ridlehoover 	in April 	1994. 	This
effort 	did not 	produce 	further documentation on 	job descriptions
until 	mid-September when Gardner received drafts 	of 	job
31HEERA contains 	no provision 	comparable 	to 	Educational
Employment 	Relations Act 	section 3543.5(a) 	which grants 	employee
organizations 	the 	right 	to represent 	their members. 	(See
generally, 	Regents 	of 	the University of 	California v. 	Public
Employment Relations Board 	(1985) 	168 	Cal.App.3d 	937 	[214
Cal.Rptr. 	698].)
32No 	evidence was 	even alluded to 	of 	UC written 	contact 	with
outside 	agencies 	regarding CVTs. 	This portion of 	the 	information
request should, 	therefore, 	be dismissed.
42

descriptions 	for CVTs. 	She 	reviewed the 	documents 	nearly a month
later. 	CNA received these 	drafts 	in 	late November.
The 	only other documentation on 	CVTs 	appears 	to be 	the
requisition forms to hire 	CVTs. 	One was 	created in March, 	three
in June, 	one 	in August and one 	in October. 	These 	forms 	listed
expected 	CVT duties 	which would be 	relevant 	to 	CNA's 	inquiry
regarding CVT 	job descriptions. 	Ridlehoover was 	a 	signatory to
most of these 	forms.
The 	exclusive 	representative 	is 	entitled 	to 	all 	information
that 	is 	necessary and relevant 	to 	collective bargaining.
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143.)
The 	refusal 	to 	furnish requested 	information meeting 	these
standards is, 	in itself, 	an unfair practice, 	and may also support
an 	independent 	finding of 	surface 	bargaining. 	These 	requirements
apply to 	employees 	governed by HEERA. 	(Trustees 	of 	the 	California
State University 	(1987) 	PERB Decision No. 	613-H.)
The documentation shows that 	in March, 	June and August, 	UC
was 	processing 	employee 	requisition 	forms 	that 	outlined 	tasks
expected of 	CVTs. 	In addition, 	in September, 	Gardner had in hand
draft 	job descriptions 	for CVTs. 	Yet 	in response 	to CNA's
specific 	request 	for CVT 	job descriptions 	in August, 	UC did not
provide 	job descriptions 	for CVTs until 	late November, 	and never
provided 	the 	requisition 	forms.
The 	latter were 	relevant 	to 	establish what 	was 	expected of
CVTs. 	The 	job descriptions were 	clearly necessary to enable 	CNA
43

to 	ascertain what 	overlapping duties 	might 	occur with 	the
appointment of CVTs.
It 	appears 	the 	UC 	simply 	ignored CNA's 	statutory right 	to
information. 	Although 	CNA requested 	information 	that 	UC had 	in
September of 	1994, 	it did not provide 	the 	job descriptions until
November 	1994. 	It never did supply the 	employee 	requisition
forms until 	the 	formal 	hearing in this matter. 	The UC's 	failure
to provide 	the 	CVT 	job descriptions 	or the 	employee 	requisition
forms 	in a 	timely matter was 	a violation of 	CNA's 	right 	to meet
and confer provided by section 3571 (c). 	This 	same 	conduct
interfered with bargaining unit 	members 	rights 	to 	be 	represented
by CNA in violation of 	section 3571(a).
The 	Letter of 	Warning
In order to prevail 	on a 	retaliatory adverse 	action charge,
the 	charging party must 	establish that 	the 	employee 	was 	engaged
in protected activity, 	the activities were known to the 	employer,
and 	that 	the 	employer 	took 	adverse 	action because 	of 	such
activity. 	(Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato).) 	Unlawful motivation is essential 	to charging
party's 	case. 	In the absence of direct 	evidence, 	an inference of
unlawful 	motivation may be drawn from the 	record as 	a whole, 	as
supported by circumstantial 	evidence. 	(Carlsbad Unified 	School
District 	(1979) 	PERB Decision No. 	89.) 	From Novato and a number
of 	cases 	following it, 	any of 	a host 	of 	circumstances may justify
an 	inference 	of unlawful motivation on the part 	of 	the 	employer.
Such circumstances 	include: 	the 	timing of 	the 	adverse action 	in
44

relation 	to 	the 	exercise 	of 	the 	protected activity 	(North
Sacramento School District 	(1982) 	PERB Decision No. 	264); 	the
employer's 	disparate 	treatment 	of 	the 	employee 	(State 	of
California 	(Department of Transportation) 	(1984) 	PERB Decision
No. 	459-S); 	departure from established procedures or standards
(Santa Clara Unified School District 	(1979) 	PERB Decision No.
104); 	inconsistent 	or contradictory justification 	for its 	actions
(State of 	California 	(Department 	of 	Parks 	and Recreation) 	(1983)
PERB Decision No. 	328-S); 	or employer animosity towards union
activists 	(Cupertino Union Elementary School 	District 	(1986) 	PERB
Decision No. 572).
Once an inference 	is made, 	the burden of proof 	shifts 	to the
employer to 	establish that 	it 	would have 	taken the 	action
complained of, 	regardless of the employees' 	protected activities.
(Novato; 	Martori Brothers Distributors v. 	Agricultural 	Labor
Relations Board 	(1981) 	29 Cal.3d 721 	[175 	Cal.Rptr. 	626].) 	Once
employee misconduct 	is demonstrated, 	the employer's action,
. 	. 	. 	should not be deemed an unfair labor
practice 	unless 	the 	board determines 	that 	the
employee would have been 	retained 	"but 	for"
his 	union membership 	or his 	performance 	to
other protected activities. 	Flbid.1
The University argues 	that 	it 	was 	unaware 	that 	Leptuch was
involved 	in any protected activity. 	Because 	it 	was 	not 	until
August 	or 	September when Leptuch notified 	CNA about 	the 	warning
letter, 	management 	had no 	knowledge 	that 	Leptuch had 	included CNA
in any of 	his 	activities 	related to CVTs. 	Management 	did not 	see
Leptuch attempting 	to 	enforce 	some 	aspect 	of 	the 	MOU and his
45

concerns did not 	relate to wages, 	hours or terms and conditions
of 	employment. 	Nor was management 	aware 	that 	Leptuch was
speaking 	for other employees. 	Schraad was 	new to 	the ACCL and
what 	developed was 	a personality conflict 	between her 	and
Leptuch. 	Ridlehoover and Yeatman 	saw Leptuch's 	complaints 	as 	his
own. 	Finally, 	argues the University, 	from Leptuch's history of
complaints 	about 	Yeatman and Schraad's 	supervision, 	and use 	of
CVTs, 	management 	had to assume he was 	complaining about 	himself
and not 	in a protected context.
CNA contends 	Leptuch was 	engaged 	in protected 	activity by
embracing the provisions 	of 	the MOU. 	The MOU requires 	Leptuch to
be 	in good standing as a RN. 	To maintain that 	status, 	he must
perform the 	obligations 	of 	a 	nurse 	which 	include patient
advocacy. 	All 	of 	Leptuch's 	complaints were 	related to proper
treatment, 	or the avoidance of 	improper procedures 	over patients.
Thus, 	by advocating patient 	safety, 	Leptuch was 	expressing his
contractual 	right 	to maintain his 	license 	as 	a 	condition of
continued 	employment.
CNA also 	contends 	that 	a 	special 	relationship 	is 	created by
the 	contractual 	creation of 	a 	"Practice 	Committee" 	in the
agreement 	by which RNs 	are 	charged with 	considering and
constructively 	recommending 	to management 	"ways 	and means 	to
improve nursing practice 	and patient 	care." 	(Article 	7 	of 	the
MOU.) 	No evidence was 	introduced however, 	that 	ties Leptuch as 	a
member of 	the committee, 	hence 	I 	do not 	rely on this 	argument.
46

I 	conclude 	that 	Leptuch was 	engaged 	in protected activity
when 	he 	spoke 	out 	about 	CVTs 	performing unauthorized tasks 	and
expressed 	concern 	about 	RNs 	doing unauthorized work.
Leptuch wrote 	to director of 	nursing Crooks 	on July 22,
complaining about 	the request 	that 	he 	"fluoro" 	the balloon, 	a
procedure 	he 	contended was 	illegal. 	He 	complained that 	CVTs 	were
suturing in sheaths, 	running ACT's, 	mixing heparin, 	"panning" 	the
x-ray table, 	setting up 	flouro 	shots 	and 	injecting x-ray
contrast.
Leptuch complained again, 	on August 	2, 	to Parker, 	the
director of 	quality management 	services, 	about 	RNs 	being asked to
pan the 	table 	and to 	operate 	the 	flouro 	switch. 	He 	complained to
Parker that 	CVTs were 	injecting protamine 	and contrast, 	suturing
sheaths 	in place 	and performing ACT's 	a 	test 	formerly done by
RNs.
The 	contract 	required 	the 	RN to maintain 	licensure.
Clearly, 	when an RN does an unauthorized procedure, 	their license
could be 	jeopardized.33 Further, 	it was 	the 	duty of 	the 	RN to be
a patient 	advocate. 	Failure 	to 	speak 	to patient 	safety could
endanger 	the 	RNs 	continued 	licensure. 	Leptuch 	spoke 	out 	and
wrote 	letters 	regarding 	CVTs 	performing unauthorized procedures.
Moreover, 	Leptuch spoke on 	issues of 	concern to his
colleagues and co-employees. 	Kroesing, 	another RN, 	and Sanchez,
the 	radiation technologist, 	both spoke out 	on these 	issues.
33Yeatman 	subsequently 	issued 	a memo 	that 	clarified 	only 	the
attending physician 	or 	the 	x-ray 	technologist 	could perform 	the
panning chore. 	Thus, 	the UC agreed with Leptuch's 	contention.
47

Finally, 	Leptuch 	spoke 	directly on 	CVTs 	doing bargaining unit
work when he wrote 	to 	Parker 	complaining 	that 	CVTs 	were
performing ACTs, 	a procedure 	formerly done by RNs.
For all 	the 	foregoing reasons, 	I 	find Leptuch was 	engaged in
protected activity.34 Clearly, 	Schraad, 	the 	author of 	the 	letter
of 	reprimand was 	aware of 	his undertakings 	as 	she was 	at meetings
where he 	spoke on these 	issues, 	and she got 	Leptuch's 	letter to
Crooks wherein he raised these 	same 	issues. 	Indeed, 	she 	took
umbrage 	at 	his writing outside 	of 	the 	chain of 	command.
CNA 	finds 	an 	inference 	of 	unlawful 	motivation based upon 	the
timing of 	the warning 	letter. 	Within days 	of 	receiving CNA's
expressed concern of the use of CVTs on August 	11, 	1994, 	Leptuch
was 	given the 	letter of 	warning. 	A second basis 	is what 	CNA
calls 	a 	"shoddy" 	investigation of 	the August 	1 	incident 	involving
Leptuch and Dr. 	Sherman. 	Witness 	Sanchez was never questioned
about 	the 	event, 	nor did the UC get 	a written statement 	from
Dr. 	Sherman, 	although one was 	secured from the CVT who was
present.
CNA also 	finds 	an 	inference 	based upon 	the 	contents 	of 	the
letter of 	warning 	in 	that 	the 	second expressed 	reason 	for 	the
letter was 	that 	Leptuch had sent 	his 	letter protesting the use 	of
CVTs 	to someone outside of 	the 	chain of 	command, 	and that 	the one
34The 	University 	argues 	strongly against 	Leptuch's
credibility. 	It 	is 	clear he 	took 	strong umbrage at Yeatman's
behavior, 	to the point of 	"screaming" 	at Yeatman on his way home
from work, 	no evidence 	in the 	record repudiates 	his 	complaints.
His 	profound 	frustration 	at 	Yeatman does 	not 	undermine 	the
testimony of 	Leptuch as 	corroborated by the 	documentation and
testimony of 	Sanchez 	and Kroesing.
48

"confrontation" 	described 	in 	the 	letter was 	when Leptuch 	said he
was 	going to 	the union about 	the 	dispute.
I 	find an 	inference 	of 	unlawful 	motivation 	in UC's 	issuance
of 	the 	letter of 	reprimand on the proximity of 	time 	of 	the 	letter
to his protected activity, 	the 	cursory investigation done by
Schraad, 	and the 	total 	lack of 	independent 	evidence 	for 	support
of her basis of discipline.
The 	letter of 	reprimand was 	issued on August 	15, 	1994, 	just
days after CNA's 	letters regarding CVTs, 	an issue Leptuch had
been complaining of 	since 	Schraad became manager. 	The 	letter
followed 	a 	series 	of 	meetings 	where 	Leptuch was 	complaining about
the 	CVTs 	doing unauthorized procedures, 	and doing the work of
RNs. 	Although timing alone will 	not 	support 	an 	inference 	of
unlawful 	motivation 	(Charter Oak Unified 	School 	District 	(1994)
PERB Decision No. 	4 04), 	it may, 	along with other factors, 	be
considered 	(North Sacramento School District, 	supra, 	PERB
Decision No. 	264). 	Here, 	the cursory investigation by Schraad of
the August 	1 	incident 	is 	further grounds 	for finding an unlawful
inference. 	Although Sanchez was 	a percipient witness 	to the
incident, 	Schraad did not 	question him about 	the 	events before
issuing the 	letter. 	Nor was 	Leptuch asked about 	the
circumstances. 	Finally, 	Dr. 	Sherman, 	who Yeatman said was
"livid" 	over the 	incident, 	did not 	submit 	anything 	in writing
such as 	the 	CVT involved did. 	Even the 	CVT's version of 	events
places 	Dr. 	Sherman and Leptuch well 	inside 	the 	control 	both and
with Sanchez's 	explanation, 	well 	beyond patient 	hearing.
49

As 	to the other grounds 	for the 	letter, 	the UC did not
establish 	independent 	evidence 	that 	Schraad's 	contentions 	were
well 	taken. 	Both Sanchez 	and Kroesing were 	examined at 	hearing
and direct 	testimony of 	Schraad's 	contentions 	of 	Leptuch's
alleged behavior was 	not 	elicited.
I 	conclude 	that 	the 	letter was 	issued 	in 	retaliation 	for
Leptuch's protected activity. 	The burden now shifts 	to the UC to
establish that 	it 	would have 	issued 	the 	letter 	of 	reprimand
notwithstanding 	Leptuch's 	complaints.
The 	University put 	on no 	independent 	evidence 	of 	what
transpired at 	the August 	1, 	1994, 	incident or how Leptuch behaved
at 	staff meetings. 	Schraad did not 	testify. 	Leptuch, 	Kroesing
and 	Sanchez 	did 	testify and were 	subject 	to 	cross-examination,
but 	no 	testimony was 	elicited 	that 	would back 	Schraad's
contentions 	raised 	in her August 	15 	letter. 	Her 	letter 	is
hearsay. 	(See Woodland Joint Unified School District 	(1987) 	PERB
Decision No. 	628.)
Schraad's August 	15 	letter took umbrage 	that 	Leptuch went
outside 	the 	chain of 	command, 	and she 	complained that 	it was not
until August 	3 	that 	she heard of his July 22 	letter to Crooks 	and
that 	over two weeks were 	lost 	in addressing concerns 	he 	had
raised.
Leptuch's 	direct 	testimony was 	that 	he 	raised 	these 	concerns
to 	Schraad 	in 	staff 	meetings 	and 	she 	said 	they were 	acceptable
community practice. 	Kroesing and Sanchez 	confirmed that 	Leptuch
brought 	these 	issues 	to the 	staff meetings. 	There was no
50

competent 	evidence 	to 	support 	Schraad's 	contention 	to 	the
contrary. 	Hence, 	Leptuch's 	testimony as 	supported by Kroesing
and Sanchez 	goes 	unchallenged.
Finally, 	Leptuch's behavior at 	the 	staff meetings was not
supported by any competent 	evidence. 	Sanchez' 	testimony about
not 	observing Leptuch 	in unprofessional 	behavior 	is 	unchallenged.
The University 	failed to 	establish that 	it 	would have 	given
Leptuch a 	letter of 	warning even absent 	his 	involvement 	in
protected activity. 	This 	conduct 	is 	a violation of 	Leptuch's
rights under section 3571(a).
REMEDY
It 	has 	been 	found that 	the 	University unilaterally
transferred bargaining unit 	work 	from RNs 	to CVTs, 	without
providing 	CNA with notice 	or an opportunity to meet 	and 	confer on
the 	issue. 	This conduct 	is a violation of section 3571(c). 	This
same 	conduct 	denies 	unit 	members 	their 	right 	to be 	represented by
CNA in violation of section 3571(b) 	and 	(a). 	It 	is also found
that 	the 	University unlawfully 	failed 	to provide 	relevant 	and
necessary information to CNA in a timely fashion. 	It 	has 	further
been 	found 	that 	the 	University unlawfully 	retaliated 	against
Leptuch because 	he 	engaged 	in protected activity. 	This 	is 	a
violation of 	section 3543(a). 	It 	is appropriate to order the
University to 	cease 	and desist 	in 	its unlawful 	conduct, 	and to
meet and confer with CNA, 	upon request, 	on the use of 	CVTs 	in the
ACCL. 	It 	is 	further appropriate 	to order the University to
restore 	RN duties 	to 	those 	conditions 	that 	prevailed before 	the
51

unlawful 	change. 	(See 	Compton Unified School 	District 	(1989)
PERB Decision No. 	784.) 	It 	is 	further appropriate to order the
UC to remove and destroy the August 	15, 	1994, 	letter of 	reprimand
from Schraad to Leptuch. 	(See Mt. 	San Antonio Community College
District 	(1982) 	PERB Decision No. 	224.)
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the Regents
of 	the University of 	California 	(University) 	violated Government
Code 	section 3571 (c) 	of 	the Higher Education Employer-Employee
Relations Act 	(Act). 	The University violated the Act by
unilaterally 	transferring 	bargaining 	unit 	work 	to 	employees
outside 	of 	the bargaining unit. 	This 	action was 	done without
notice 	to or affording the 	California Nurses Association 	(CNA) 	an
opportunity to meet 	and confer on the 	issue. 	This 	same 	conduct
interfered with unit 	employees 	to be 	represented by CNA 	in
violation of 	3571(a). 	It has 	further been found that 	the
University violated section 3571(c) 	when 	it 	failed to provide
relevant 	and 	necessary 	information 	to 	CNA concerning
cardiovascular technician 	(CVT) 	duties. 	It 	is also 	found that
the University retaliated against 	Michael 	Leptuch 	(Leptuch) 	for
his 	involvement 	in protected activities. 	This 	action was 	in
violation of section 3571)a).
Pursuant 	to 	section 3563.3 	of 	the Government 	Code, 	it 	hereby
is 	ORDERED that 	the University, 	its 	governing board and its
representatives 	shall:
52

A. 	CEASE AND DESIST FROM:
1. 	Unilaterally transferring duties 	of 	bargaining unit
employees 	to employees outside of 	the bargaining unit, 	failing to
provide 	relevant 	and necessary 	information 	or 	retaliating 	against
employees 	for 	their exercise 	of 	rights 	protected by the Act.
2. 	By the 	same 	conduct, 	denying bargaining unit
employees 	their 	right 	to be 	represented by CNA.
3. 	Retaliating against 	unit 	employees 	for protected
activities.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT.
1. 	Upon demand of 	CNA, 	meet 	and confer about 	duties 	of
registered nurses 	(RN).
2. 	Restore 	the 	conditions of RN duties 	that prevailed
prior to 	the hiring of CVTs.
3. 	Remove and destroy the August 	15, 	1994, 	letter of
reprimand 	issued 	to 	Leptuch.
4. 	Within ten 	(10) 	workdays of 	the service of 	a 	final
decision in this matter, 	post 	at 	all work locations where notices
to members 	of University employees 	are 	customarily posted, 	copies
of 	the notice 	attached hereto as 	an Appendix. 	The notice must 	be
signed by unauthorized agent 	of 	the University, 	indicating 	that
the University will 	comply with the 	terms 	of this Order. 	Such
posting 	shall 	be 	maintained 	for a period of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be 	taken to ensure
that 	the Notice 	is not reduced in size, 	altered, 	defaced or
covered with any other material.
53

5. 	Upon issuance of a 	final 	decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	the 	Order 	to 	the
San Francisco Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in 	accordance 	with 	the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
20 	days of 	service of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should identify by page
citation or exhibit 	number the portions of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before 	the close of business 	(5 p.m.) 	on the 	last day
set 	for 	filing 	". 	. 	. o r when 	sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing 	. 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each copy served on 	a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
Gary Gallery
Administrative Law Judge