UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES – Pre-Impasse

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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.)