All notes for Subtopic 301.04000 – Unfair Practice
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2906E | Oakland Unified School District 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice The right to strike is qualified. Modesto City Schools (1983) PERB Decision No. 291 noted that the right is qualified only to the extent that it is inconsistent with another EERA provision—the duty to bargain in good faith. (Id. at pp. 62-63.) Specifically, a strike is a bad faith pressure tactic to the extent that it: (1) imminently and substantially threatens the public health or safety (County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564); County of San Mateo (2019) PERB Order No. IR-60-M, pp. 6-9; Sacramento County Superior Court (2015) PERB Order No. IR-59-C, pp. 2-4); (2) uses tactics in which employees retain the benefits of working and striking at the same time (Regents of the University of California (2019) PERB Order No. IR-62-H, pp. 6-10; Sweetwater Union High School District (2014) PERB Order No. IR-58, p. 16, fn. 11); (3) constitutes a unilateral change in the status quo as set forth in an operative no-strike agreement (San Francisco County Superior Court & Region 2 Court Interpreter Employment Relations Com. (2018) PERB Decision No. 2609-I, pp. 7-10 [discussing allegation that union deviated from contractual no-strike clause when employees honored picket lines of another union]; City of San Jose (2013) PERB Decision No. 2341-M, pp. 34-36 [strike over reopener bargaining does not normally violate no-strike clause]); or (4) constitutes bad faith bargaining because it is a pre-impasse attempt to bring economic pressure on an employer to make concessions in collective bargaining. (pp. 20, 23-33.) more or view all topics or full text. | 06/28/24 | ||
| 2906E | Oakland Unified School District 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice 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.) more or view all topics or full text. | 06/28/24 | ||
| 2906E | Oakland Unified School District 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice EERA provides employees with “the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.” (§ 3543, subd. (a).) This language, which appears in each labor relations statute PERB enforces, confers a qualified, statutory right to strike, including “the right to strike in protest against unfair practices.” (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 33.) (p. 13.) more or view all topics or full text. | 06/28/24 | ||
| 2761M | County of San Joaquin 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice It is an unfair practice for a public sector union strike to cause an imminent and substantial threat to the public’s health or safety, and a union may lawfully strike pre-impasse only based upon employer unfair practices. (Regents of the University of California (2019) PERB Order No. IR-62-H, pp. 8 & 10-11; County of San Mateo (2019) PERB Order No. IR-61-M, pp. 5-6.) more or view all topics or full text. | 45 | 92 | 04/12/21 |
| 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) 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice Two out of five strikes at issue in employer’s request for injunctive relief were preceded by the filing of various unfair practice charges. 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, and the Board is not at liberty to ignore such charges when faced with a request to enjoin strike activity. Thus, the Board could not infer an unlawful intent to engage in an intermittent strike when the employer’s alleged unfair practices were squarely at issue. Indeed work stoppages that respond to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for a single goal, and are therefore protected. (p. 8.) more or view all topics or full text. | 44 | 94 | 11/07/19 |
| I061M | County of San Mateo 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice A strike that occurs prior to impasse and completion of any statutorily-required impasse resolution procedures creates a rebuttable presumption that the union has breached its duty to bargain in good faith. (County of Trinity (United Public Employees of California, Local 792) (2016) PERB Decision No. 2480-M, p. 3 (Trinity).) After bargaining parties have reached a bona fide impasse and exhausted any mandatory impasse resolution procedures, public sector strikes are governed by the same rules as apply in the private sector (City of San Jose (2013) PERB Decision No. 2341-M, p. 39), except that an employer’s “substantial concession” post-impasse might temporarily re-institute the aforementioned rebuttable presumption, until a new impasse is reached. (Trinity, supra, PERB Decision No. 2480-M, p. 5.) more or view all topics or full text. | 44 | 17 | 06/27/19 |
| 1997S | State of California (Departments of Veterans Affairs and Personnel Administration) 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice The parties’ expired MOU contained a no-strike provision. While the Board found that SEIU may have: (1) “condoned” the sick-out; (2) failed to provide notice to union staff of the no-strike provisions of the MOU; and (3) failed to provide sufficient encouragement for “sick” employees to return to work, the Board found that such did not constitute a unilateral change by SEIU of the no-strike provision. The Board did not find that SEIU implemented a new policy, breached the provision in the past or would do so in the future, or that the breach had a generalized effect upon bargaining unit members. more or view all topics or full text. | 33 | 27 | 12/22/08 |
| I046E | San Ramon Valley Unified School District 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice A strike provoked by an employer's unfair labor practices would be protected at any time at which it occurs in the bargaining process so long as the striking employee organization has not failed to participate in good faith in the statutory impasse procedures; p. 10. more or view all topics or full text. | 8 | 15187 | 10/12/84 |
| I049E | Sacramento City Unified School District * * * OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 * * * 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice ***OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 to extent decision indicates that a pre-impasse strike must be a “last resort.”***Even in the presence of an employer's alleged unfair practice, the employee organization must show a causal connection between the employer's action and the strike. As pre-impasse strike does not appear to have been provoked by the district and was not undertaken as a last resort, Board orders General Counsel to seek an injunction to halt the strike; p. 7. more or view all topics or full text. | 11 | 18053 | 02/17/87 |
| I053E | Santa Maria Joint Union High School District * * * OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 * * * 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice ***OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 to extent decision indicates that a pre-impasse strike must be a “last resort.” ***The Board ordered that a complaint should issue based upon the association's one-day, pre-exhaustion of impasse strike activity. more or view all topics or full text. | 13 | 20225 | 11/02/89 |
| I012E | Modesto City Schools 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice As work stoppage appears to be a protected response to an employer's unfair practices, Board orders General Counsel to seek injunctive relief to "maintain the continuity and quality of educational services;" pp. 3-4. Board determined that employer's obligation to resume negotiations and to rescind its unlawful unilateral actions should be conditioned upon the reciprocal obligation of the association to end its work stoppage; p. 5. more or view all topics or full text. | 4 | 11034 | 03/12/80 |
| 0292E | Rio Hondo Community College District * * * OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 * * * 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice ***OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 to extent decision indicates that a pre-impasse strike must be a “last resort.”***As Association did not charge that District engaged in bad faith or surface bargaining at the table and no evidence supports a finding of causal connection between unfair practice charges and strike, Board found that one-day strike was not provoked by District's unlawful conduct; p. 29. more or view all topics or full text. | 7 | 14091 | 03/08/83 |
| 0291E | Modesto City Schools 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice As the strike engaged in the Association was provoked by the District and the Association had participated in the collective bargaining process in good faith, Board held that strike by the Association was not in violation of EERA but was protected conduct; p. 65. more or view all topics or full text. | 7 | 14090 | 03/08/83 |