Decision 2418M – Fresno County In-Home Supportive Services Public Authority

Strikes by public employees are not illegal, unless statutorily prohibited, or unless there has been a clear showing that the strike poses a substantial and imminent threat to public health and safety. “[W]hile not absolute, the right to strike falls within the statutorily-protected right of public-sector employees to participate in union activities.” An employer may not unilaterally impose terms that waive or limit these rights, even after bargaining in good faith to impasse. The Board overruled Compton Unified School District (1987) PERB Order No. IR-50 to the extent that it holds there is no statutory right to strike in protest of an employer’s unfair practices.

The right to strike is fundamental to the statutory scheme of collective bargaining between equal partners. In the absence of some means of equalizing the parties’ respective bargaining positions, such as a credible strike threat, both sides are less likely to bargain in good faith, which, in turn, leads to unsatisfactory and acrimonious labor relations and ironically to more and longer strikes. Strikes by public employees are not illegal, unless statutorily prohibited, or unless there has been a clear showing that the strike poses a substantial and imminent threat to public health and safety. “[W]hile not absolute, the right to strike falls within the statutorily-protected right of public-sector employees to participate in union activities.” An employer may not unilaterally impose terms that waive or limit this right. The Board overruled Compton Unified School District (1987) PERB Order No. IR-50 to the extent that it holds there is no statutory right to strike in protest of an employer’s unfair practices.

The right to strike is fundamental to the statutory scheme of collective bargaining between equal partners. In the absence of some means of equalizing the parties’ respective bargaining positions, such as a credible strike threat, both sides are less likely to bargain in good faith, which, in turn, leads to unsatisfactory and acrimonious labor relations and ironically to more and longer strikes. Strikes by public employees are not illegal, unless statutorily prohibited, or unless there has been a clear showing that the strike poses a substantial and imminent threat to public health and safety. Strikes and strike-related conduct may also be statutorily protected by the MMBA and other California public-sector labor relations statutes. An employer may not impose terms that waive or limit this right. The Board overruled Compton Unified School District (1987) PERB Order No. IR-50 to the extent that it holds there is no statutory right to strike in protest of an employer’s unfair practices.

Conduct alleged to constitute a per se violation of the duty to bargain may also indicate the absence of good faith in support of a surface bargaining charge. Although employer’s post-impasse imposition of unratified tentative agreements providing for no strikes and Separability/savings language did not demonstrate an intent to frustrate negotiations or undermine the authority of the representative, because the tentatively agreed to articles affected statutory rights, employer committed per se violations of its duty to bargain by unilaterally imposing them, even after bargaining in good faith to impasse.

The statutory scheme for collective bargaining under the PERB-administered statutes prohibits the unilateral imposition of terms that waive or limit the statutory rights of employees and employee organizations, including the rights to engage in concerted activity and to strike. Employer’s unilateral imposition of unratified tentative agreements providing for no strikes and Separability/savings language did not demonstrate an intent to frustrate negotiations or undermine the authority of the representative, because the tentatively agreed to articles constituted per se violations of the duty to bargain.

Although a no strikes clause is a mandatory subject of bargaining, it also affects statutory rights of employees and employee organizations. While an employer may insist to impasse on a proposal to limit or waive the right to strike, it may not unilaterally impose a waiver of the right to strike, even after bargaining in good faith to impasse.

An employer may condition agreement on no strikes language by insisting, even to the point of impasse, on including a no strikes clause in the agreement. However, because a no strikes clause waives or limits statutory rights, an employer may not unilaterally impose such language, even after bargaining in good faith to impasse.

Conduct alleged to constitute a per se violation of the duty to bargain may also indicate the absence of good faith in support of a surface bargaining charge.

Bargaining proposals that would waive or limit statutory rights cannot be unilaterally imposed, even after bargaining in good faith to impasse. The Board reversed dismissal of allegation that employer committed a per se violation of the duty to bargain by imposing no strikes and Separability/savings language included in unratified tentative agreements. The statutory scheme for collective bargaining between equal partners prohibits the unilateral imposition of terms that waive or limit the statutory rights of employees and employee organizations, including the rights to engage in concerted activity and to strike. Employer was not authorized to impose unratified tentative agreement waiving the right to strike, even after bargaining in good faith to impasse.

Although a no strikes clause is a mandatory subject of bargaining, it also affects statutory rights of employees and employee organizations. While an employer may insist to impasse on a proposal to limit or waive the right to strike, it may not unilaterally impose a waiver of the right to strike, even after bargaining in good faith to impasse.

Although a no strikes clause is a mandatory subject of bargaining, it also affects statutory rights of employees and employee organizations. While an employer may insist to impasse on a proposal to limit or waive the right to strike, it may not unilaterally impose a waiver of the right to strike, even after bargaining in good faith to impasse.

Issuance of a complaint by the Office of the General Counsel signifies that the dispute is not only one that the charging party wishes to pursue, but also one that the agency has determined should be pursued. Identical or overlapping facts supporting more than one theory of liability, each of which is set forth in the complaint, consideration of one theory will generally not replace or subsume consideration of the others. ALJ properly dismissed allegation of surface bargaining under totality of circumstances but failed to consider employer conduct, including imposition of terms that waived or limited statutory rights, as independent per se violations of the duty to bargain.

Issuance of a complaint by the Office of the General Counsel signifies that the dispute is not only one that the charging party wishes to pursue, but also one that the agency has determined should be pursued. Identical or overlapping facts supporting more than one theory of liability, each of which is set forth in the complaint, consideration of one theory will generally not replace or subsume consideration of the others. ALJ properly dismissed allegation of surface bargaining under totality of circumstances but failed to consider employer conduct, including imposition of terms that waived or limited statutory rights, as independent per se violations of the duty to bargain.

Regardless of whether an employer has insisted to impasse on a proposal that would waive statutory rights, or as here, it has obtained a tentative but unratified agreement for such a waiver, it may not unilaterally impose such a waiver, even after bargaining in good faith to impasse.