All notes for Subtopic 802.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Employer alleged that union’s planned strike would constitute an unfair practice because it included employees the Employer believed provide services essential to public health and safety. A union violates its duty to bargain in good faith if it causes a strike by one or more employees whose absence from work imminently and substantially threatens public health or safety. (City of San Jose, supra, 49 Cal.4th at pp. 606-608; Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, p. 2 (Sacramento County Superior Court).) (p. 3) more or view all topics or full text.
4313702/20/19
I059C Sacramento County Superior Court (United Public Employees Local 1)
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
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
2480M County of Trinity (United Public Employees of California, Local 792)
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Because bargaining impasse was not broken, the bargaining obligation was not revived and the exclusive representative did not violate its duty to bargain in good faith by going out on strike; impasse suspends the parties’ obligation to bargain only until “changed circumstances” demonstrate that an agreement may be possible; the making of “concessions” is key to finding a change in circumstances sufficient to revive the duty to bargain; a handful of non-substantive e-mail exchanges exploring the parties’ interest in and availability for a meeting did not rise to the level of changed circumstances sufficient to revive the bargaining obligation, as there was no evidence that either party made a substantial concession from an earlier position and was genuinely committed to a new bargaining position; because the parties were at impasse, the employer had the option to refuse the exclusive representative’s request to meet, to respond to the request with a concession substantial enough to revive the bargaining obligation or to unilaterally impose its last, best and final offer; by instead insisting that the duty to bargain was revived, the employer foreclosed all its options. more or view all topics or full text.
4017104/25/16
I058E Sweetwater Union High School District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
A union’s strike preparations undertaken before impasse procedures have been exhausted do not constitute “reasonable cause” to believe that an unfair practice has been committed sufficient to justify PERB seeking injunctive relief from the courts in the absence of evidence that the union lacked the intent to reach an agreement. Unlike an actual work stoppage, preparing for a strike is more akin to speech protected by EERA. PERB has long held that speech in the workplace that is related to the legitimate concerns of employees is protected activity within the meaning of EERA section 3543. A union’s communications to bargaining unit members and to the employer regarding strike preparation, including strike threats and strike votes, without a work stoppage are not coercive activities under EERA. more or view all topics or full text.
393108/20/14
2141M City of San Jose
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Picketing by building inspectors directed at private employers with the object of inducing private employees to refuse to work, shutting down private construction sites, was an unfair pressure tactic in violation of the MMBA. Tactics were particularly coercive given that the inspectors possessed direct regulatory control over the construction projects they picketed. The disruption of the business of neutral third parties is inconsistent with the public interest in promoting harmonious labor relations as well as the efficient delivery of public services. The absence of specific language in the MMBA prohibiting secondary picketing does not preclude finding picketing constituted an unlawful pressure tactic, since PERB has broad authority to identify unfair pressure tactics that undermine the collective bargaining process, even if such conduct is not specifically prohibited by the governing statute. more or view all topics or full text.
3416711/10/10
2094H Regents of the University of California * * * OVERRULED IN PART by amendment to HEERA section 3563.3, Stats. 2011, Ch. 539
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
HEERA does not prohibit strikes; the lawfulness of a strike is to be determined on a case-by-case basis. A strike prior to the completion of statutory impasse procedures is presumed unlawful. The employee organization may rebut the presumption by proving the strike was provoked by the employer’s unfair practices. Employee organization did not prove employer committed any unfair practices and therefore failed to rebut presumption. A threat to strike and strike preparations are an unfair practice if they: (1) were made in furtherance of an unlawful strike, and (2) were sufficiently substantial to support a reasonable belief by the employer that the strike would occur as noticed. Employee organization gave clear written notice of one-day strike to occur before completion of statutory impasse procedures and engaged in substantial preparations for strike. Under totality of circumstances test, employee organization’s conduct was an unfair practice. more or view all topics or full text.
344102/02/10
1997S State of California (Departments of Veterans Affairs and Personnel Administration)
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
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.
332712/22/08
1859E Grossmont Union High School District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Where there is no evidence that the union encouraged, planned, authorized or ratified a "sick out," no violation of the duty to bargain in good faith will be found. Statistical correlation alone was not enough to establish an inference that Grossmont Education Association, or its agents, either planned or organized the sickout. more or view all topics or full text.
31409/19/06
1638H Regents of the University of California
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
As there is no common law prohibition on strikes, a sympathy strike constitutes an unfair practice only if prohibited by the applicable CBA. more or view all topics or full text.
2816206/09/04
1580M Oxnard Harbor District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
The California Supreme Court has recognized that there is no common law prohibition on strikes by California public sector employees and their unions. Thus, a sympathy strike only constitutes an unlawful unilateral change if prohibited by a collective bargaining agreement. more or view all topics or full text.
285601/09/04

802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Police work stoppages are per se illegal. Application of County Sanitation "threat to public safety" test to police functions would be an impossible task for the trier of fact. more or view all topics or full text.

802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
The maintenance of an illegal strike is not a tort for which damages may be recovered. An employer retains the right to sue for breach of an explicit no-strike clause or for tortious acts occurring during the conduct of a strike. more or view all topics or full text.

802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public. This standard allows exceptions in certain essential areas of public employment (e.g., the prohibition against firefighters and law enforcement personnel) and also requires the courts to determine on a case-by-case basis whether the public interest overrides the basic right to strike. On its face MMBA neither denies nor grants local employees the right to strike. It is not unlawful for public employees to engage in a concerted work stoppage for the purpose of improving their wages or conditions of employment unless it has been determined that the work stoppage poses an imminent threat to the public health or safety.Declined to follow by: Passaic Tp. Bd. of Educ. v. Passaic Tp. Educ. Ass'n, 222 N.J. Super. 298, 536 A.2d 1276, 128 L.R.R.M. (BNA) 3249, 44 Ed. Law Rep. 1185 (N.J.Super.A.D. Dec 16, 1987) (NO. A-0042-86T7) Jefferson County Bd. of Educ. v. Jefferson County Educ. Ass'n, 183 W.Va. 15, 393 S.E.2d 653, 135 L.R.R.M. (BNA) 2144, 61 Ed. Law Rep. 765 (W.Va. Apr 12, 1990) (NO. 19575) Martin v. Montezuma-Cortez School Dist. RE-1, 809 P.2d 1010, 67 Ed. Law Rep. 802 (Colo.App. Jun 28, 1990) (NO. 85CA1553, 85CA1583), certiorari granted (Apr 22, 1991) Provision of MMBA which specifically precludes application of Labor Code section 923 to public employees was not intended as a means to prohibit striking. Common law prohibition against public sector strikes not recognized. Consequently, strikes by public sector employees are neither illegal nor tortious under California common law. more or view all topics or full text.

802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Court must grant Board's request for injunctive relief if court determines that there exists reasonable cause to believe an unfair practice has been committed and that the relief sought is just and proper. [136 Cal.App.3d at 896] In determining whether there is reasonable cause to believe an unfair practice has been committed, PERB is required to sustain a minimal burden of proof. Reasonable cause aspect of the two-pronged test is met if theory is neither insubstantial nor frivolous. [136 Cal.App.3d at 896-879, 902] Injunctive relief is just and proper where either an employer or union has committed unfair labor practices which render any final order of the Board meaningless or so devoid of force that the remedial purposes of EERA will be frustrated. [136 Cal.App.3d at 902-903] more or view all topics or full text.

802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
A strike may be a failure to negotiate in good faith. The question of negotiations in good faith is resolved by determining whether there was a genuine desire to reach agreement. If a strike were an illegal pressure tactic, its happening could support a finding that good faith was lacking. [24 Cal.3d at 8] more or view all topics or full text.
1015E Vallejo City Unified School District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Legal issues concerning a post-impasse strike were presented to the Board in Compton Unified School District (1987) PERB Order No. IR-50. In Compton the Board found that to establish a prima facie case, the District must show the strike caused "a total breakdown of two discrete activities that are guaranteed by statutue and case law: (1) basic education for students and (2) negotiations free from coercive tactics that hold hostage that education." The District failed to satisfy these standards; pp. 2-3, dismissal letter. Although only 100 teachers showed up to work on the strike day, the District was able to recruit a large number of substitutes and did not demonstrate a total breakdown in the educational process. Further, no evidence was presented showing that the two-day strike had an impact on student attendance beyond the week of the strike; p. 3, dismissal letter. on student attendance beyond the week of the strike; p. 3, dismissal letter. negotiations during the strike period. Thus, there was no evidence demonstrating a breakdown in the negotiation process; pp. 3-4, dismissal letter. more or view all topics or full text.
172416609/29/93
0803E Los Angeles Unified School District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Refusal to perform required duties in order to advance the union's position at the bargaining table is tantamount to a partial strike and is an unlawful bargaining tactic; p. 4. more or view all topics or full text.
142108203/30/90
0728E Compton Community College District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
The fact that most union officials also called in sick is, in and of itself, insufficient to demonstrate union involvement in the "sick out;" p. 7. more or view all topics or full text.
132007604/04/89
0537E El Dorado Union High School District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Picketting during on-duty time, even though there were no specific assignments, violated EERA, as a partial work stoppage. Boycott of required extra duty assignment is a violation because the assignments are mandatory, therefore the boycott is a partial work stoppage. more or view all topics or full text.
101700612/02/85
0537Ea El Dorado Union High School District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Strikes are unprotected during impasse resolution process, and violate 3543.6(d) but not 3543.6(c). more or view all topics or full text.
101705702/03/86
0292E Rio Hondo Community College District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
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.
71409103/08/83
0136E Fremont Unified School District * * * VACATED IN PART by Fremont Unified School District (1982) PERB Decision No. 136a
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Strikes are not unlawful per se under EERA. It is the totality of the employee organization's conduct which controls. A work stoppage is a significant factor, but only one factor, to consider. In the context of the case as a whole, the work stoppage here, in response to employer unfair practice and during mediation, did not evidence an intent to avoid or delay agreement and therefore was not unlawful. more or view all topics or full text.
41111806/19/80
0100E Sacramento City Unified School District
802.1000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Board found that the Association stated a prima facie case of discrimination where it alleged that the District refused to pay employees personal necessity leaves because they were allegedly engaged in a work stoppage; pp. 2-3. more or view all topics or full text.
31010908/14/79