All notes for Subtopic 406.04000 – Post-Strike Furloughs

DecisionDescriptionPERC Vol.PERC IndexDate
2761M * * * JUDICIAL APPEAL PENDING * * * County of San Joaquin
406.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs
County allowed nurses to use paid leave for furloughs that have no relationship to protected activity. Singling out the post-strike furloughs for differential treatment from all other furloughs is both facially discriminatory and inherently destructive of protected rights. The County did not justify such conduct with a valid business necessity, much less one reflecting circumstances beyond its control leaving it with no other alternative. Even applying the Novato framework, the County’s disparate treatment of post-strike days meets the nexus element, while illustrating that the County would likely have permitted nurses to use paid leave, absent protected activity. more or view all topics or full text.
459204/12/21
2761M * * * JUDICIAL APPEAL PENDING * * * County of San Joaquin
406.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs
County engaged in facial discrimination when it granted preference to non-strikers over strikers by prohibiting striking nurses from returning to work at the end of the strike period for three days unless called to work. Singling out employees who honored picket lines during the strike and reducing their post-strike work opportunities—while granting greater opportunities to employees who did not strike—constitutes facial discrimination under PERB’s discrimination standard and inherently destructive conduct under PERB’s interference standard. (Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423 [noting that, under NLRB v. Great Dane Trailers, Inc. (1967) 388 U.S. 26, favoring non-strikers over strikers constitutes “discrimination in its simplest form”].) To meet its affirmative defense burden, the County was required to prove that it acted solely due to circumstances beyond its control and no alternative course of action was available. (Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, pp. 36 & 40.) more or view all topics or full text.
459204/12/21
2761M * * * JUDICIAL APPEAL PENDING * * * County of San Joaquin
406.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs
Executing a contract specifically for strike replacements is not a mandatory subject of bargaining, but the effects of that decision on bargaining unit employees are bargainable, because post-strike work opportunities, post-strike furloughs, use of paid leave, and appropriate payroll codes are bargainable effects on mandatory subjects of bargaining. more or view all topics or full text.
459204/12/21
2761M * * * JUDICIAL APPEAL PENDING * * * County of San Joaquin
406.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs
A public health care employer that prohibits bargaining unit employees from work after an economic or unfair practice strike, due to a minimum shift guarantee for strike replacements, can typically establish an affirmative defense to an interference claim and avoid a finding of discrimination only if it can prove that: (1) it made a good faith effort in the marketplace to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible, but it ultimately needed to agree to the minimum shift guarantee in order to maintain critical inpatient services; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities, and it filled all remaining opportunities without discriminating against employees based on whether they worked during the strike or engaged in any other actual or perceived protected activity; and (3) it provided the employees’ union with timely notice regarding any decision to guarantee replacement workers a minimum work period or to modify the terms of a prior guarantee, and, if requested, bargained in good faith over the potential effects on bargaining unit employees. Applying this standard, Board found employer did not meet any of these three required elements. more or view all topics or full text.
459204/12/21
2761M * * * JUDICIAL APPEAL PENDING * * * County of San Joaquin
406.4000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; Post-Strike Furloughs
Employer harmed protected rights when it prohibited employees from working for multiple days after a strike due to a minimum shift guarantee for strike replacements, prevented employees from using accrued paid leave for these days, and designated both strike days and mandatory days off with a payroll code that can be used for discipline. These actions discouraged employees from authorizing future strikes, and therefore had to be narrowly tailored to a compelling business necessity. more or view all topics or full text.
459204/12/21