All notes for Subtopic 1204.03000 – Unlawful Strikes

DecisionDescriptionPERC Vol.PERC IndexDate
I062H Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 and University Professional and Technical Employees Communication Workers of America Local 9119)
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
The statutory limitation on the Board’s remedial authority to award damages should it later conclude that the Unions’ strikes were unlawful in no way renders meaningless the Board’s procedures or power in general. For instance, if the University’s charges merit complaints and its evidence ultimately supports an unfair practice finding, the Board would, at a minimum, order each offending party to cease and desist its unlawful conduct. In reminding the Board that it lacks the power to issue strike damages, Government Code section 3563.3 does not undermine the efficacy of such customary remedies or otherwise alter the equitable balance it must strike in these cases. Likewise, the Legislature’s limitation of the Board’s authority does not create a new expansive mandate to seek injunctions against striking employees and their organizations. (pp. 11-12.) more or view all topics or full text.
11/07/19
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
Because the right to strike “goes to the essence of labor law,” Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 268, if a PERB-covered employer believes a strike should be enjoined, it usually must ask PERB to seek an injunction on its behalf. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 611 (City of San Jose) [city could not establish exception to rule requiring it to seek injunctive relief through PERB, because union gave city 72 hours’ notice of upcoming strike, which was sufficient time for PERB to determine whether to seek injunctive relief and to obtain such relief if warranted]; see San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 13 [recognizing that PERB has “discretion to withhold as well as pursue” a strike injunction]; accord, Ahearn ex rel. NLRB v. International Longshore and Warehouse Union, Locals 21 and 4 (9th Cir. 2013) 721 F.3d 1122, 1130 [private sector employer seeking to enjoin union activity must pursue injunction through the National Labor Relations Board (NLRB)].) more or view all topics or full text.
4313702/20/19
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
When an employer asks PERB to seek an injunction against a strike that includes allegedly essential employees, PERB makes a preliminary determination as to whether certain positions satisfy the County Sanitation standard. (Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, pp. 3-4, citing County Sanitation District No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564.) PERB assesses each position on a case by case basis. more or view all topics or full text.
4313702/20/19
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
n assessing whether certain positions satisfy the County Sanitation standard, PERB considers the nature of the services the alleged essential employees perform 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. (Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, pp. 2-3, citing County Sanitation District No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564.) If the employer has made this showing, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public even after fully 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 temporary replacements, their responses when contacted, and any resulting contracts. (Id. at pp. 3-4; San Francisco County Superior Court & Region 2 Court Interpreter Employment Relations Committee (2018) PERB Decision No. 2609-I, p. 13.) Finally, for those employees that PERB preliminarily determines to be essential to public health or safety based on the above-described analysis, PERB considers what arrangements will protect the public while infringing as little as possible on employees’ protected rights. more or view all topics or full text.
4313702/20/19
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
If a union exempts from a planned strike certain employees or positions that PERB has preliminarily found to be essential, such an exemption will normally mean that (1) there is no “reasonable cause” to believe that the union is threatening an unfair practice as to those positions, and (2) injunctive relief is not “just and proper” as to those positions. Nonetheless, both of these criteria may be satisfied—notwithstanding the union’s commitment to exempt certain positions from its strike—if the employer demonstrates that the union has violated or threatened to violate its commitment, or has offered an exemption that is insufficiently broad to protect public health and safety. more or view all topics or full text.
4313702/20/19
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
There was no reasonable cause to believe a county employee strike would constitute an unfair practice and no basis to seek injunctive relief where the union exempted from the strike each position that PERB preliminarily determined to be essential under the County Sanitation standard. more or view all topics or full text.
4313702/20/19
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
PERB did not initiate injunction proceedings where the union exempted from the strike each position PERB preliminarily determined to be essential under the County Sanitation standard. PERB explained that if the union had not exempted all of the positions that it preliminarily determined to be essential, it would have sought a temporary restraining order as to the non-exempted essential positions. PERB described methods by which union could notify PERB, the employer, and the affected employees of its decision to exempt certain positions from a strike. PERB would seek immediate injunctive relief if the employer had presented information that the union violated or threatened to violate its agreement to exempt certain positions from the strike. more or view all topics or full text.
4313702/20/19
I059C Sacramento County Superior Court (United Public Employees Local 1)
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
Unless statutorily prohibited from striking, the California Supreme Court’s County Sanitation standard requires that it be “clearly demonstrated,” on a case-by-case basis, that public employees’ participation in a strike would create an imminent and substantial threat to public health and safety. The availability of replacement workers goes into the determination of whether an employee or a class of employees is “essential” to public health and safety and may be enjoined from striking. The Board denied a trial court employer’s request to seek an injunction against a planned two-day strike by court employees because the court’s declarations did not clearly demonstrate that, without employees in the seven positions at issue, the Court's essential functions could not or would not be performed. The Court did not demonstrate that it could not use managers or supervisors to perform the functions of court clerks and its moving papers did not disclose how many supervisors or managers were qualified and available to perform the work of those employees the Court identified as “essential.” It also failed to identify the specific level and nature of services that must be maintained to preserve public health and safety. more or view all topics or full text.
4011412/30/15
2094H Regents of the University of California * * * OVERRULED IN PART by amendment to HEERA section 3563.3, Stats. 2011, Ch. 539
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
PERB has authority to make an employer whole for expenses necessarily incurred or economic harm suffered as a direct result of unlawful strike activity. Expenses must have been necessary to maintain continuity of operations during the strike and proper to mitigate foreseeable effects of the strike. Expenses that are speculative or cannot be quantified, or that were only indirectly related to the strike, are not compensable. Expenses and losses are to be offset by any savings the employer realized as a result of the strike activity. Damages will not be awarded unless the employer first seeks to stop the strike or mitigate its losses by seeking injunctive relief through PERB. Case remanded to ALJ for hearing on whether employer sustained compensable damages. more or view all topics or full text.
344102/02/10
0642E Palo Verde Unified School District
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
"Self-help" during negotiations via unilateral imposition of a six- percent salary increase in response to a threatened strike violates EERA section 3543.5(c) and, derivatively, (a) and (b). In the event of an actual strike, the remedy for the other party may be a request to the Board for injunctive relief. more or view all topics or full text.
121900812/15/87
0277E Westminster School District
1204.3000: REMEDIES FOR UNFAIR PRACTICES; REMEDIES AGAINST UNION; Unlawful Strikes
District's claimed expenses for substitute training and telephone tree were neither consequence of the strike nor proper mitigation measures, and are not properly chargeable to Association; p. 19. more or view all topics or full text.
71403412/31/82