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

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PERB first found that EERA includes a qualified, statutory right to strike in Modesto City Schools (1983) PERB Decision No. 291 (Modesto), where the Board held that EERA section 3543 authorizes work stoppages except as limited by other EERA provisions. (Id. at p. 62.) Soon thereafter, in County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564 (County Sanitation), the California Supreme Court relied on the MMBA and other authority to find that public employees have a “basic right to strike” unless doing so imminently and substantially threatens public health or safety. (Id. at pp. 586-587.) Four years after Modesto, in Compton Unified School District (1987) PERB Order No. IR-50 (Compton), a plurality of Board panel members combined to overrule Modesto. (Compton, supra, pp. 106 & 160, fn. 31 [lead opn. of Porter, M.]; id. at p. 164, fn. 3 [conc. opn. of Hesse, Chair]).] However, in Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 33 (Fresno), the Board reinstated Modesto, overruling Compton and other Board precedent failing to recognize the statutory right to strike. (Fresno, supra, p. 33.) The Legislature transferred MMBA jurisdiction from the courts to PERB effective July 1, 2001, and thereafter the California Supreme Court decided City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597 (San Jose v. OE3), which cemented the Court’s recognition of PERB’s exclusive jurisdiction to interpret the labor relations statutes under its jurisdiction to determine which strikes are lawful and protected and which constitute statutory violations. (Id. at pp. 604-605.) Relying in part on Modesto, County Sanitation, and San Jose v. OE3, the Fresno Board concluded that the broad statutory right to participate in union activities and the statutory limitation requiring unions to bargain in good faith together form a strong basis for deciding which strikes are statutorily protected and which are statutorily prohibited. (Fresno, supra, pp. 26-33.) Since Fresno, the Board has consistently held that California law’s protection of the right to participate in union activities provides unions and employees with a statutory, qualified right to strike. See also County of San Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, at pp. 1072, 1081, 1088 [right to strike is statutorily protected].) (pp. 13-19.)