All notes for Subtopic 301.11000 – Essential Employees
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2975M |
County of Kern and Kern County Civil Service Commission
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
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.) more or view all topics or full text. |
50 | 46 | 07/31/25 |
| 2975M |
County of Kern and Kern County Civil Service Commission
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
Determining “whether a particular employee’s job is so essential that the employee may not legally strike is a complex and fact-intensive matter.” (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 601.) The starting point is “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.” (County of San Mateo (2019) PERB Order No. IR-61-M, p. 8.) (pp. 42-43.) more or view all topics or full text. |
50 | 46 | 07/31/25 |
| 2906E |
Oakland Unified School District
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
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. |
49 | 26 | 06/28/24 |
| 2761M |
County of San Joaquin
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
PERB precedent requires an employer seeking an essential employee injunction to contact all companies or other entities potentially able to provide replacement employees or services. (See County of San Mateo (2019) PERB Order No. IR-61-M, p. 8.) more or view all topics or full text. |
45 | 92 | 04/12/21 |
| I061M |
County of San Mateo
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; 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. more or view all topics or full text. |
44 | 17 | 06/27/19 |
| I061M |
County of San Mateo
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
PERB will exclude from its injunctive relief request to the court any positions that PERB has preliminarily found to be essential if the union agrees to exempt those positions from a planned strike. In some cases, the public may be sufficiently protected if the essential employees are on call, i.e., ready to cross the picket line if needed in the event of an emergency. (San Mateo Superior Court (2019) PERB Order No. IR-60-C, p 5, fn. 3.) A striking union need not use any particular format in notifying PERB, the employer, and the affected employees if the union decides to narrow the scope of its planned strike. (Id. at p. 7.) 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. (Id., p. 5.) more or view all topics or full text. |
44 | 17 | 06/27/19 |
| I061M |
County of San Mateo
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
PERB partially granted injunctive relief request as to public safety dispatchers, a detention facility cook, a supervising stationary engineer, a boiler watch engineer, a juvenile group home administrator, juvenile group home residential counselors, a hazmat emergency response team lead, adult protective services employees, a deputy public guardian, inpatient pharmacists, and clinical laboratory scientists. PERB denied injunctive relief request as to detention facility food service workers, utility workers, autopsy technicians, airport employees, social workers, social work supervisors, benefits analysts, psychiatric social workers, supervising mental health clinicians, case management specialists, mental health program specialists, supervising dieticians, microbiologists, community workers, and the following categories of health care workers: outpatient pharmacists, respiratory therapists, dietitians, physical and occupational therapists, speech pathologists, laboratory assistants, medical and dental assistants, pharmacy technicians, sterile processing technicians, surgical technicians, supply assistants, telephone operators, cooks, and food service workers, as well as radiologic technologists, imaging specialists, and electrograph technicians who conduct and process x-ray, CT, MRI, EEG, EKG, EMG, and ultrasound tests. more or view all topics or full text. |
44 | 17 | 06/27/19 |
| I061M |
County of San Mateo
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
Health care positions that are not filled on certain holidays and weekend days found not essential. more or view all topics or full text. |
44 | 17 | 06/27/19 |
| I061M |
County of San Mateo
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
In considering the nature of the services, one relevant factor is the extent to which the employer is playing a role that is distinct from private entities providing similar services, whose employees are free to strike without any court or regulatory body considering the impact on the public. Medical centers, for instance, frequently move back and forth between the public and private sectors. more or view all topics or full text. |
44 | 17 | 06/27/19 |
| I061M |
County of San Mateo
301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees
If hospital eschews national striker replacement companies or other available options that might wholly or partially obviate the need for an injunction, hospital undercuts its own request for injunctive relief. Cost rationale is insufficient reason to seek injunction rather than use replacements. A hospital employer seeking injunctive relief must provide PERB with its specific requests to local and national companies potentially capable of providing replacement employees, as well as those companies’ specific responses to such requests. As with other information that the parties provide during injunctive relief proceedings, an employer must provide updates as replacement availability changes, as employer is unlikely to have received a final and definitive response to its request by the time the employer first files its initial request for injunctive relief. more or view all topics or full text. |
44 | 17 | 06/27/19 |