All notes for Subtopic 806.05000 – Unfair Practice Strike
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2906E | Oakland Unified School District 806.05000: UNION UNFAIR PRACTICES; DEFENSES; Unfair Practice Strike The Board overruled four decisions from the 1980s suggesting that a pre-impasse strike must be a “last resort,” finding that a “last resort” requirement is inconsistent with the modern Board’s observation that 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.” (Regents of the University of California (2019) PERB Order No. IR-62-H, p. 8; Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 28.) The four overruled cases are: Fremont Unified School District (1980) PERB Decision No. 136; Rio Hondo Community College District (1983) PERB Decision No. 292, p. 23; Sacramento City Unified School District (1987) PERB Order No. IR-49; Santa Maria Joint Union High School District (1989) PERB Order No. IR-53. (pp. 25-29.) more or view all topics or full text. | 06/28/24 | ||
| 2906E | Oakland Unified School District 806.05000: UNION UNFAIR PRACTICES; DEFENSES; Unfair Practice Strike Determining whether an unfair practice at least partially motivated a strike requires reviewing the totality of circumstances. (Rio Hondo Community College District (1983) PERB Decision No. 292, p. 23.) The most important category of evidence comprises the content of a union’s strike announcement or notice, picket signs, leaflets, press releases, social media posts, and other messaging, as well as witness testimony explaining the strike’s context and purposes. (Ibid.) A strike’s timing relative to the employer’s alleged violation can also be relevant. (Ibid.) However, close temporal proximity is not necessary to rebut the presumption against a pre-impasse strike; it is more important to consider whether the alleged violation remains unresolved at the time of the strike, because frustration may build the longer an unfair practice remains unresolved. Other factors that may be relevant if they are lacking include a union’s failure to file an unfair practice charge or to protest serious or material unfair conduct. (Ibid.) (p. 25.) more or view all topics or full text. | 06/28/24 | ||
| 2906E | Oakland Unified School District 806.05000: UNION UNFAIR PRACTICES; DEFENSES; Unfair Practice Strike A union seeking to rebut the presumption against pre-impasse strikes faces two main obstacles. First, if the employer successfully defends against the unfair practice charges against it, then the presumption stands. (Sweetwater Union High School District (2014) PERB Order No. IR-58, p. 9.) Second, to establish that a proven unfair practice “provoked” a strike, the union must show that the employer’s conduct was one material or substantial cause of the strike. (Regents of the University of California (2019) PERB Order No. IR-62-H, p. 3 [inquiry is whether strike was “in part precipitated or provoked by a public employer’s alleged unfair conduct”]; San Ramon Valley Unified School District (1984) PERB Order No. IR-46, pp. 10-11 [strike activity must be motivated “at least in part” by unfair practices]. (p. 24.) more or view all topics or full text. | 06/28/24 | ||
| 2906E | Oakland Unified School District 806.05000: UNION UNFAIR PRACTICES; DEFENSES; Unfair Practice Strike 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 806.05000: UNION UNFAIR PRACTICES; DEFENSES; Unfair Practice Strike 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 806.05000: UNION UNFAIR PRACTICES; DEFENSES; Unfair Practice Strike 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 | ||
| 2094H | Regents of the University of California * * * OVERRULED IN PART by Stats. 2011, Ch. 539 (See HEERA sec. 3563.3 and comparable parts of other laws); and OVERRULED IN PART by Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, as recognized in Oakland Unified School District (2024) PERB Decision No. 2906, p. 18 * * * 806.05000: UNION UNFAIR PRACTICES; DEFENSES; Unfair Practice Strike * * * OVERRULED IN PART ON OTHER GROUNDS by Stats. 2011, ch. 539 (S.B. 857), § 4, and OVERRULED IN PART by Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, as recognized in Oakland Unified School District (2024) PERB Decision No. 2906, to the extent that decision relied on Compton Unified School District (1987) PERB Order No. IR-50 and thereby failed to properly account for the statutory right to strike. * * *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. more or view all topics or full text. | 34 | 41 | 02/02/10 |