UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES – Essential Employees

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Public defenders are akin to other county employees whose right to strike is not absolute due to the critical work they do. This can include not only physicians and certain court personnel, but multiple other county classifications whose incumbents protect the public 24 hours per day, 365 days per year. (See County of San Mateo (2019) PERB Order No. IR-61-M, pp. 10-21 & 26.) Public defenders and other attorneys employed in the public sector are not prohibited from striking, as long as the attorney does not “overstep[] ethical boundaries,” meaning that the attorney “violates actual disciplinary rules, most particularly rules pertaining to the attorney’s duty to represent the client faithfully, competently, and confidentially.” (Santa Clara County Counsel Attorneys Assn. v. Woodside (1994) 7 Cal.4th 525, 552; accord County of San Bernardino (Office of the Public Defender) (2015) PERB Decision No. 2423-M, p. 35 [public defenders have full MMBA rights, provided they do not violate the California Rules of Professional Conduct].) Similarly, physicians employed in the public sector have full MMBA rights, provided they use professional judgment to assure compliance with professional codes. Such consideration may lead to a range of actions to protect clients or patients, including making alternate arrangements, reasonable delays, or negotiating line passes whereby the union exempts employees who play important roles in the criminal justice or health care systems from striking to allow compliance with mandatory court deadlines or, where alternate arrangements cannot be made, to protect against substantial and imminent risk to patients’ health and safety. (pp. 43-47 & fn. 11.)