UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES – Essential Employees
Single Topic for Decision I061M
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301.11000 – Essential Employees
In City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, the Supreme Court ruled that 72 hours’ strike notice is long enough for PERB injunctive relief procedures to apply, and in such circumstances, a PERB-covered employer can only seek a strike injunction by asking PERB to seek an injunction on its behalf. PERB makes a preliminary determination as to whether certain positions satisfy the County Sanitation standard, viz. the nature of the services the employee performs and whether the employer has clearly demonstrated that disruption of such services for the length of the strike would imminently and substantially threaten public health or safety. If PERB finds that a lapse in the public service would imminently and substantially threaten the public health or safety, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public after accounting for all possible service reductions and coverage options, including (1) planning to use supervisors, managers, non-bargaining unit personnel, and bargaining unit employees that the union has exempted from the strike or who have affirmatively indicated that they plan to work during the strike; (2) contacting all companies or other entities potentially able to provide replacement employees or services, and contracting with such entities if they indicate they can provide replacements; and (3) documenting the extent to which each of the aforementioned options may or may not be feasible, including the available companies or agencies offering what arrangements will protect the public while infringing as little as possible on employees’ protected rights.