Decision 2536M – City and County of San Francisco

SF-CE-981-M

Decision Date: June 30, 2017

Decision Type: PERB Decision

View Full Text (PDF)

Perc Vol: 42
Perc Index: 14

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

The right to strike secured by the MMBA is a matter of statewide concern and is not subject to prohibition under the constitutional home rule doctrine.

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

The right to strike secured by the MMBA is a matter of statewide concern and is not subject to prohibition under the constitutional home rule doctrine.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

Despite differences in wording, the MMBA’s protection of the right to form, join and participate in the activities of employee organizations for the purposes of representation on all matters of employer-employee relations encompasses the same rights as section 7 of the National Labor Relations Act

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.01000 – In General

The employee 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” includes a qualified right to strike, subject to a demonstration of a substantial and imminent threat to public health and safety.

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.06000 – Sympathy

The right to strike encompasses sympathy strikes undertaken in support of either protected unfair practice strikes or protected economic strikes by employees in other bargaining units and of other employers. Employees have a right to refuse to cross a picket line regardless of whether their exclusive representative has called for a sympathy strike. The exclusive representative may waive employees’ rights to engage in a sympathy strike only by clear and unmistakable contract language.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

A finding of interference, coercion or restraint does not require evidence of any ill will or unlawful motive on the part of the employer, or that any employee felt subjectively threatened or intimidated.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.02000 – Express or Implied Threats

Memorandum to employees referring to rule requiring dismissal of employees who engaged in a sympathy strike was not merely informational, nor was it a protected statement of opinion, and therefore interfered with employee rights.

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING
406.01000 – In General

Local rule requiring dismissal of employees who refused to cross a picket line, and memorandum referring to this rule, were inherently destructive of employee rights to engage in a sympathy strike.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

Once a prima facie case of interference is established, the burden shifts to the employer to articulate a legitimate justification for its conduct. The scrutiny with which the employer’s conduct will be examined depends on the severity of the harm. Where the harm to employees’ rights is slight and the employer offers justification based on operational necessity, the competing interests will be balanced. But where the harm is inherently destructive of employee rights, the employer’s conduct will be excused only on proof that it was occasioned by circumstances beyond the employer’s control and that no alternative course of action was available.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.02000 – Conduct Ineffective

Even if employer’s memorandum had not deterred employees from engaging in a sympathy strike, the test of coercion and intimidation is not whether the misconduct proves effective, but whether under the circumstances it may reasonable tend to coerce or intimidate employees in the exercise of rights protected under the Act.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.05000 – Union Consent or Waiver

Any waiver of a statutory right must be established either by: (1) a clear and unmistakable agreement, or (2) by bargaining history showing that the issue was fully discussed and consciously explored, and that the union intentionally yielded its interest in the matter. Because the agreement was not clear and unmistakable, and bargaining history did not show that the union intended to agree that the no-strike clause prohibited sympathy strikes, no waiver was found.

750.00000 – EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE
750.01000 – In General

Because the MMBA gives employees the right to engage in a sympathy strike, a city charter provision banning sympathy strikes under penalty of dismissal is not a reasonable local rule.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.04000 – Continuing Violation

No new wrongful act is required to trigger the statute of limitations where seeking to test an unreasonable rule would risk discipline. Memorandum to employees threatening to enforce a local rule constitutes a new wrongful act for statute of limitations purposes.

1200.00000 – REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS
1200.01000 – In General

Where evidence and argument of parties was directed at litigating the lawfulness of the employer’s prohibition of sympathy strikes, the Board rejected the argument that ALJ’s proposed order erred by failing to address the employer’s prohibition of economic strikes. The appropriate remedy for a city charter provision that conflicts with employees’ rights to participate in a sympathy strike is to declare that provision void and unenforceable. The Board lacks the power to order the provision to be rescinded.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

The appropriate remedy for conduct that interferes with protected rights is to order the employer to cease and desist from such conduct and to make whole any employees adversely affected by the action.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.03000 – Notices; Posting, Reading, and Mailing

Electronic notice posting should be directed to all employees affected by the employer’s unlawful conduct, not only those represented by the charging party.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.07000 – Restoration of Status Quo

The Board may not order that a city charter provision be rescinded. The Board lacks the power to order a legislative act. As remedy for a memorandum that threatens employees with dismissal for participating in a sympathy strike, the Board ordered that the memorandum be rescinded.