All notes for Subtopic 301.02000 – Pre-Impasse
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2906E |
Oakland Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
The Board overruled four decisions from the 1980s suggesting that a pre-impasse strike must be a “last resort,” finding that a “last resort” requirement is inconsistent with the modern Board’s observation that there “is no question that a strike provoked by an employer’s unfair labor practices is protected at any time it occurs during the negotiating process.” (Regents of the University of California (2019) PERB Order No. IR-62-H, p. 8; Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 28.) The four overruled cases are: Fremont Unified School District (1980) PERB Decision No. 136; Rio Hondo Community College District (1983) PERB Decision No. 292, p. 23; Sacramento City Unified School District (1987) PERB Order No. IR-49; Santa Maria Joint Union High School District (1989) PERB Order No. IR-53. (pp. 25-29.) more or view all topics or full text. |
49 | 26 | 06/28/24 |
| 2906E |
Oakland Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
Determining whether an unfair practice at least partially motivated a strike requires reviewing the totality of circumstances. (Rio Hondo Community College District (1983) PERB Decision No. 292, p. 23.) The most important category of evidence comprises the content of a union’s strike announcement or notice, picket signs, leaflets, press releases, social media posts, and other messaging, as well as witness testimony explaining the strike’s context and purposes. (Ibid.) A strike’s timing relative to the employer’s alleged violation can also be relevant. (Ibid.) However, close temporal proximity is not necessary to rebut the presumption against a pre-impasse strike; it is more important to consider whether the alleged violation remains unresolved at the time of the strike, because frustration may build the longer an unfair practice remains unresolved. Other factors that may be relevant if they are lacking include a union’s failure to file an unfair practice charge or to protest serious or material unfair conduct. (Ibid.) (p. 25.) more or view all topics or full text. |
49 | 26 | 06/28/24 |
| 2906E |
Oakland Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
A union seeking to rebut the presumption against pre-impasse strikes faces two main obstacles. First, if the employer successfully defends against the unfair practice charges against it, then the presumption stands. (Sweetwater Union High School District (2014) PERB Order No. IR-58, p. 9.) Second, to establish that a proven unfair practice “provoked” a strike, the union must show that the employer’s conduct was one material or substantial cause of the strike. (Regents of the University of California (2019) PERB Order No. IR-62-H, p. 3 [inquiry is whether strike was “in part precipitated or provoked by a public employer’s alleged unfair conduct”]; San Ramon Valley Unified School District (1984) PERB Order No. IR-46, pp. 10-11 [strike activity must be motivated “at least in part” by unfair practices]. (p. 24.) more or view all topics or full text. |
49 | 26 | 06/28/24 |
| 2906E |
Oakland Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
A union seeking to rebut the presumption against pre-impasse strikes faces two main obstacles. First, if the employer successfully defends against the unfair practice charges against it, then the presumption stands. (Sweetwater Union High School District (2014) PERB Order No. IR-58, p. 9.) Second, to establish that a proven unfair practice “provoked” a strike, the union must show that the employer’s conduct was one material or substantial cause of the strike. (Regents of the University of California (2019) PERB Order No. IR-62-H, p. 3 [inquiry is whether strike was “in part precipitated or provoked by a public employer’s alleged unfair conduct”]; San Ramon Valley Unified School District (1984) PERB Order No. IR-46, pp. 10-11 [strike activity must be motivated “at least in part” by unfair practices]. (p. 24.) more or view all topics or full text. |
49 | 26 | 06/28/24 |
| 2906E |
Oakland Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
A union’s duty to bargain in good faith qualifies its right to strike. If a union engages in a pre-impasse strike, viz., a strike while the parties have not yet reached an impasse (or have reached an initial impasse but have not yet exhausted required impasse resolution procedures), there is “a rebuttable presumption that the union has breached its duty to bargain in good faith.” (County of Trinity (2016) PERB Decision No. 2480-M, p. 3.) The presumption applies only when a strike is pre-impasse. (Ibid.) The most common circumstance in which a strike is not pre-impasse is that the parties have already reached an impasse and completed any required post-impasse procedures. Alternatively, if the employer cannot identify any negotiation for which the union has a duty to bargain, the strike is definitionally not “pre-impasse.” When the presumption applies, it “is rebuttable by proof that the strike was provoked by the employer’s unfair practices and that the employee organization in fact negotiated and/or participated in impasse procedures in good faith.” (Id., p. 3, fn. 3.) Thus, there “is no question that a strike provoked by an employer’s unfair labor practices is protected at any time it occurs during the negotiating process.” (Regents of the University of California (2019) PERB Order No. IR-62-H, p. 8; Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 28.) (p. 23.) more or view all topics or full text. |
49 | 26 | 06/28/24 |
| 2906E |
Oakland Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
The right to strike is qualified. Modesto City Schools (1983) PERB Decision No. 291 noted that the right is qualified only to the extent that it is inconsistent with another EERA provision—the duty to bargain in good faith. (Id. at pp. 62-63.) Specifically, a strike is a bad faith pressure tactic to the extent that it: (1) imminently and substantially threatens the public health or safety (County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564); County of San Mateo (2019) PERB Order No. IR-60-M, pp. 6-9; Sacramento County Superior Court (2015) PERB Order No. IR-59-C, pp. 2-4); (2) uses tactics in which employees retain the benefits of working and striking at the same time (Regents of the University of California (2019) PERB Order No. IR-62-H, pp. 6-10; Sweetwater Union High School District (2014) PERB Order No. IR-58, p. 16, fn. 11); (3) constitutes a unilateral change in the status quo as set forth in an operative no-strike agreement (San Francisco County Superior Court & Region 2 Court Interpreter Employment Relations Com. (2018) PERB Decision No. 2609-I, pp. 7-10 [discussing allegation that union deviated from contractual no-strike clause when employees honored picket lines of another union]; City of San Jose (2013) PERB Decision No. 2341-M, pp. 34-36 [strike over reopener bargaining does not normally violate no-strike clause]); or (4) constitutes bad faith bargaining because it is a pre-impasse attempt to bring economic pressure on an employer to make concessions in collective bargaining. (pp. 20, 23-33.) more or view all topics or full text. |
49 | 26 | 06/28/24 |
| I061M |
County of San Mateo
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
A strike that occurs prior to impasse and completion of any statutorily-required impasse resolution procedures creates a rebuttable presumption that the union has breached its duty to bargain in good faith. (County of Trinity (United Public Employees of California, Local 792) (2016) PERB Decision No. 2480-M, p. 3 (Trinity).) After bargaining parties have reached a bona fide impasse and exhausted any mandatory impasse resolution procedures, public sector strikes are governed by the same rules as apply in the private sector (City of San Jose (2013) PERB Decision No. 2341-M, p. 39), except that an employer’s “substantial concession” post-impasse might temporarily re-institute the aforementioned rebuttable presumption, until a new impasse is reached. (Trinity, supra, PERB Decision No. 2480-M, p. 5.) PERB denied County’s requests to enjoin strikes, finding no reasonable cause to believe that rebuttable presumption against pre-impasse strikes applied to the noticed strikes. Board therefore did not consider whether union could rebut such a presumption, nor did Board consider whether an injunction prohibiting union from proceeding with its strikes might be just and proper. more or view all topics or full text. |
44 | 17 | 06/27/19 |
| I058E |
Sweetwater Union High School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
A union’s strike preparations undertaken before impasse procedures have been exhausted do not constitute “reasonable cause” to believe that an unfair practice has been committed sufficient to justify PERB seeking injunctive relief from the courts in the absence of evidence that the union lacked the intent to reach an agreement. Unlike an actual work stoppage, preparing for a strike is more akin to speech protected by EERA. PERB has long held that speech in the workplace that is related to the legitimate concerns of employees is protected activity within the meaning of EERA section 3543. A union’s communications to bargaining unit members and to the employer regarding strike preparation, including strike threats and strike votes, without a work stoppage are not coercive activities under EERA. more or view all topics or full text. |
39 | 31 | 08/20/14 |
| I053E |
Santa Maria Joint Union High School District * * * OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 * * *
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
***OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 to extent decision indicates that a pre-impasse strike must be a “last resort.” ***
Injunction denied where the association engaged in a one-day pre-impasse strike and it was not shown that the association was provoked by district unfair labor practices or that it struck as a last resort. more or view all topics or full text. |
13 | 20225 | 11/02/89 |
| I049E |
Sacramento City Unified School District * * * OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 * * *
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
***OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 to extent decision indicates that a pre-impasse strike must be a “last resort.” ***
Strike that occurs prior to the exhaustion of impasse procedures creates a rebuttable presumption that the employee organization is either refusing to negotiate in good faith and/or refusing to participate in impasse procedures; p. 3. Even in the presence of an employer's alleged unfair practice, the employee organization must show a causal connection between the employer's action and the strike. As pre-impasse strike does not appear to have been provoked by the district and was not undertaken as a last resort, Board orders General Counsel to seek an injunction to halt the strike; p. 7. more or view all topics or full text. |
11 | 18053 | 02/17/87 |
| I048E |
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
Board finds injunctive relief is just and proper where (1) work stoppage is in progress, and (2) the parties have not completed the statutory impasse procedures; p. 2. more or view all topics or full text. |
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| I046E |
San Ramon Valley Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
Given the complicated factual record, the contradictory claims of the parties, the unsettled state of the law, and the absence of a full evidentiary hearing, the Board determined the district has not demonstrated reasonable cause to believe that the association committed an unfair practice by engaging in strikes; p. 11. more or view all topics or full text. |
8 | 15187 | 10/12/84 |
| I010E |
San Francisco Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
As work stoppage commenced prior to completion of impasse procedures, Board orders the General Counsel to seek injunctive relief against a work stoppage called, engaged in, and encouraged by the association; p. 5. more or view all topics or full text. |
3 | 10141 | 10/29/79 |
| I009E |
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
Board orders the General Counsel to seek injunctive relief against (1) any work stoppage engaged in, supported by or encouraged by the association; and (2) any disciplinary action by the district based on employees' participation in such work stoppage pending determination of the unfair practice charges against the employer; pp. 5-6. more or view all topics or full text. |
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| 0292E |
Rio Hondo Community College District * * * OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 * * *
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
***OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 to extent decision indicates that a pre-impasse strike must be a “last resort.”***
One-day pre-impasse strike motivated by economic considerations to gain concessions at bargaining table amounts to a refusal to bargain in good faith in violation of section 3543.6(c) and (a); p. 30. more or view all topics or full text. |
7 | 14091 | 03/08/83 |
| 0277E |
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
As Association neither alleged nor proved that its pre-impasse strike was provoked by the District's conduct, the work stoppage was an economic strike and constituted a refusal to negotiate and to participate in impasse; pp. 15-16. more or view all topics or full text. |
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| 0208E |
Fresno Unified School District
301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse
A strike during negotiations and prior to exhaustion of impasse proceedings constitutes a failure to negotiate in good faith. Although not a per se violation, in the absence of any sustainable allegation of provocation by the employer, the strike violated subsection 3543.6(c); pp. 11-12. A pre-impasse strike creates a rebuttable presumption that it is a violation of 3543.6(c). more or view all topics or full text. |
6 | 13110 | 04/30/82 |