UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES – In General

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The limitations on California public sector employees’ right to strike are few and carefully defined. As the California Supreme Court explained, “strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public.” (County Sanitation, supra, 38 Cal.3d at p. 586; see San Ramon Valley Unified School District (1984) PERB Order No. IR-46, p. 10 [a strike provoked by an employer’s unfair labor practices would be protected at any time during the bargaining process as long as the striking employee organization has not failed to participate in good faith in the statutory impasse procedure]; CCSF III, supra, PERB Decision No. 2536-M, p. 54 [“an economic strike occurring after exhaustion of statutory or other applicable impasse-resolution procedures” is “statutorily protected”].)
In addition to the County Sanitation standard, there are other instances where a strike can be found unlawful. For example, a strike occurring before the completion of statutory impasse procedures creates a rebuttable presumption that the strike violated the union’s duty to bargain and participate in the impasse procedures in good faith. (Fresno County IHSS, supra, PERB Decision No. 2418-M, p. 28; Sweetwater Union High School District (2014) PERB Order No. IR-58, pp. 9, 18 (Sweetwater).) The presumption may be overcome by the union’s showing that the strike was an “unfair practice strike.” (Rio Hondo Community College District (1983) PERB Decision No. 292, pp. 22-23 [union required to demonstrate that the employer committed an unfair practice and that misconduct provoked the strike].) A strike may also be unlawful if it is found to constitute “unlawful pressure tactics.” (See Regents of the University of California (2019) PERB Order No. IR-62-H, pp. 6-10.) (p. 26.)