Decision 2536M – City and County of San Francisco
SF-CE-981-M
Decision Date: June 30, 2017
Decision Type: PERB Decision
Description: The ALJ concluded that the respondent violated the MMBA by threatening to enforce an unlawful local rule (contained in the City Charter) that prohibited employees from engaging in sympathy strikes. As a remedy, the ALJ ordered the respondent to remove the offending language from the City Charter. Both parties filed exceptions.
Disposition: The Board affirmed the ALJ’s conclusion that the respondent violated the MMBA. The Board reiterated that the MMBA gives employees a qualified right to strike, and concluded that this includes the right to engage in a sympathy strike. The Board rejected the respondent’s argument that this prohibition was lawful as part of the respondent’s procedures for binding interest arbitration of bargaining disputes. The Board also concluded that the exclusive representative did not waive the employees’ rights to engage in a sympathy strike.
The Board did modify the remedy ordered by the ALJ. The Board agreed with the respondent that the Board could not order the language removed from the City Charter, but instead declared that the language was void and unenforceable. The Board rejected the charging party’s argument that the remedy should affect the entire City Charter provision at issue, not just the prohibition on sympathy strikes. The Board concluded that it was only the sympathy strike language that had been litigated in this case.
Perc Vol: 42
Perc Index: 14
Decision Headnotes
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.
101.02000 – 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.
300.01000 – 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
301.01000 – 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.
301.06000 – 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.
400.01000 – 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.
405.02000 – 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.
406.01000 – 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.
409.01000 – 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.
409.02000 – 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.
409.05000 – 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.
750.01000 – 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.
1101.04000 – 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.
1200.01000 – 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.
1201.01000 – 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.
1205.03000 – 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.
1205.07000 – 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.