Decision 2867M – * * * JUDICIAL APPEAL PENDING * * * City and County of San Francisco

The limitations on California public sector employees’ right to strike are few and carefully defined. As the California Supreme Court explained, “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.” (County Sanitation, supra, 38 Cal.3d at p. 586; see San Ramon Valley Unified School District (1984) PERB Order No. IR-46, p. 10 [a strike provoked by an employer’s unfair labor practices would be protected at any time during the bargaining process as long as the striking employee organization has not failed to participate in good faith in the statutory impasse procedure]; CCSF III, supra, PERB Decision No. 2536-M, p. 54 [“an economic strike occurring after exhaustion of statutory or other applicable impasse-resolution procedures” is “statutorily protected”].)
In addition to the County Sanitation standard, there are other instances where a strike can be found unlawful. For example, a strike occurring before the completion of statutory impasse procedures creates a rebuttable presumption that the strike violated the union’s duty to bargain and participate in the impasse procedures in good faith. (Fresno County IHSS, supra, PERB Decision No. 2418-M, p. 28; Sweetwater Union High School District (2014) PERB Order No. IR-58, pp. 9, 18 (Sweetwater).) The presumption may be overcome by the union’s showing that the strike was an “unfair practice strike.” (Rio Hondo Community College District (1983) PERB Decision No. 292, pp. 22-23 [union required to demonstrate that the employer committed an unfair practice and that misconduct provoked the strike].) A strike may also be unlawful if it is found to constitute “unlawful pressure tactics.” (See Regents of the University of California (2019) PERB Order No. IR-62-H, pp. 6-10.) (p. 26.)

Strikes by public employees are statutorily protected, except as limited by other provisions of the MMBA or other public-sector labor relations statutes and controlling precedent. (p. 25)

Charter subsections that require actual surveillance of employees engaging in strike activities and create the appearance of surveillance found unlawful. Surveillance of protected activity, or creating the appearance of surveillance, totally conflicts with the MMBA. (County of San Bernardino (2018) PERB Decision No. 2556-M, p. 20 [employer photographing or videotaping employees or openly engaging in recordkeeping of employees participating in union activities is unlawful surveillance because of the tendency to intimidate employees].) (pp. 31-32.)

Charter subsections that require actual surveillance of employees engaging in strike activities and create the appearance of surveillance found unlawful. Surveillance of protected activity, or creating the appearance of surveillance, totally conflicts with the MMBA. (County of San Bernardino (2018) PERB Decision No. 2556-M, p. 20 [employer photographing or videotaping employees or openly engaging in recordkeeping of employees participating in union activities is unlawful surveillance because of the tendency to intimidate employees].) (pp. 31-32.)

Under the MMBA, a local agency may adopt reasonable rules and regulations pertaining to resolving collective bargaining disputes. (MMBA, § 3507, subd. (a)(5).) In order to be lawful, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. Therefore, if a local agency has adopted its rules, regulations, or charter provisions, whether by a vote of its electorate, a vote of its governing board, or by any other means, the resulting policies must be consistent with the MMBA. (p. 24.)

A facial challenge to a rule is based solely on the text of the rule. “There are at least two possible standards for evaluating a facial challenge. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126.) Under the stricter standard, we should reject a facial challenge to a rule unless it totally and fatally conflicts with the MMBA. (Ibid.) Courts often follow a more lenient standard, however, wherein a facial challenge to a rule can be sustained if it conflicts with the MMBA “in the generality or great majority of cases.” (Ibid.) Under either test, a party alleging a facial violation cannot prevail merely by suggesting that the challenged rule may run afoul of the law in “some future hypothetical situation.” (Beach & Bluff Conservancy v. City of Solana Beach (2018) 28 Cal.App.5th 244, 264.) (pp. 27-28.)

Charter section dedicated to prohibiting employee strikes, mandating City management surveil employees during a strike and terminate any employee found to have engaged in strike activity found unlawful. Its across-the-board approach to prohibiting all employee strikes is contrary to PERB’s narrow, restrained methodology for determining the lawfulness of a strike, as dictated by County Sanitation, supra, 38 Cal.3d at p. 586. (County of San Mateo, supra, PERB Order No. IR 61-M, pp. 6-8.)

When a local rule is challenged as unlawful, we start from a position of presuming that an employer’s rule is reasonable and lawful, which means that the burden of proof is on the party challenging such a rule. (pp. 24-25.)

The Board may exercise its discretion not to resolve that claim because the remedial order already requires the City cease and desist distributing the Charter acknowledgement forms. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 3 [exercising discretion not to resolve or remand a claim that would not materially alter the remedy if proven], citing City of Bellflower (2021) PERB Decision No. 2770-M, p. 10; see also County of San Joaquin (2021) PERB Decision No. 2761-M, p. 83; City of Glendale (2020) PERB Decision No. 2694-M, pp. 58-59.) (p. 42.)

Respondents request the parties be provided a reasonable period of time to negotiate a remedy that effectuates the purposes of the MMBA, which is opposed by Charging Parties. The Board has a longstanding policy favoring voluntary settlement of disputes. (Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a.) Because the unlawful provisions affect City employees beyond the Charging Parties’ bargaining units, the number of interested parties makes a potential alternative resolution ill-suited for negotiation by only two of the many unions representing City employees. We do not find it appropriate to provide the parties with additional time to negotiate, but to the extent the parties are now able to reach mutually agreeable terms that substantially comply with the Board’s remedial order, they may present the settlement agreement to the OGC, to be considered during compliance. (p. 56.)

Because PERB is a quasi-judicial agency, the separation of powers doctrine prevents PERB from compelling legislative action by a city or county. (City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1310 (Palo Alto).) Therefore, PERB lacks the authority to order the City to rescind charter provisions. However, it is “appropriate and within PERB’s authority to declare void and unenforceable portions of the Charter that conflict with the MMBA. Unlike ordering the language ‘rescinded,’ such an order does not amount to ‘rewriting’ the Charter, but merely enjoins enforcement of the illegal regulation.” (CCSF III, supra, PERB Decision No. 2536-M, p. 39.) (pp. 53-54.)

An action in quo warranto is the exclusive means to invalidate a ballot initiative that was passed in violation of the MMBA’s meet-and-confer requirement. (See Boling v. Public Employment Relations Bd. (2019) 33 Cal.App.5th 376, 384-386.) But when the order does not remedy a procedural irregularity in the legislative process that resulted in the enactment of any portions of the City Charter, quo warranto would not be available to remedy the violations alleged in this case. Where a local ordinance conflicts with the MMBA, it is void or invalid. (See LA County, supra, 160 Cal.App.3d at p. 908; see also Huntington Beach Police Officers’ Assn. v. City of Huntington Beach, supra, 58 Cal.App.3d at p. 503.)

When void and unenforceable Charter provisions impacted City employees beyond the bargaining units represented by Charging Parties, Board ordered the notice to be posted City-wide.

“The party asserting and seeking to benefit from the laches bar bears the burden of proof on these factors.” (Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 188.) In unfair practice proceedings, laches requires a respondent to show: (1) the charging party has unreasonably delayed in prosecuting its case, and (2) either the charging party has acquiesced in the acts about which it complains, or the respondent has suffered prejudice as a result of the charging party’s unreasonable delay. (Santa Ana Unified School District (2017) PERB Decision No. 2514, p. 22, citing Mt. San Antonio Community College Dist. v. Public Employment Relations Bd., supra, 210 Cal.App.3d at p. 188; Vernon Fire Fighters Assn. v. City of Vernon (1986) 178 Cal.App.3d 710, 719; Santa Monica Mun. Employees Assn. v. City of Santa Monica (1987) 191 Cal.App.3d 1538, 1546-1547.) (pp. 51-52.)

Collateral estoppel precludes the relitigation of an issue already decided in another proceeding where: “(1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding.” (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481; see also City and County of San Francisco (2022) PERB Order No. Ad-497-M, p. 27.)