Decision 2906E – Oakland Unified School District

SF-CO-864-E

Decision Date: June 28, 2024

Decision Type: PERB Decision

Description:  The complaint alleged that Oakland Education Association (OEA) held an unlawful pre-impasse strike. OEA argued that its strike was lawful because the District violated EERA as alleged in a separate unfair practice charge (the “school closure charge”). In a prior decision, the Board resolved the school closure charge in OEA’s favor, finding that the District violated EERA when it: (1) failed to afford OEA notice and an opportunity to bargain before implementing a change in a written District policy that had required a nine-month planning period before the District could implement a school closure decision; and (2) began implementing a school closure decision without observing the nine-month planning period and without affording OEA adequate notice and opportunity to engage in good faith effects negotiations. After the Board resolved the school closure charge, the parties submitted post-hearing briefs in this case, and the ALJ issued a proposed decision dismissing the complaint against OEA. The District filed exceptions, to which OEA responded.

Disposition:  The Board affirmed the proposed decision. EERA includes a qualified right to strike. One qualification restricts pre-impasse strikes pressuring an employer to make concessions in collective bargaining. As a result, there is a presumption against pre-impasse strikes, but a union may rebut the presumption by showing that employer unfair practices materially provoked the strike. The Board found two independent reasons why OEA did not engage in an unlawful pre-impasse strike. First, the presumption did not apply given that the parties were not in contract bargaining, OEA had no duty to bargain effects since the District began implementing its changes without providing notice or an opportunity to bargain, and the District pointed to no other negotiation giving rise to a duty to bargain. In the alternative, OEA rebutted the presumption because District unfair practices materially provoked the strike.

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Decision Headnotes

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

Under EERA, there is a qualified right to strike. The Board overruled four previous decisions to the extent they relied on Compton Unified School District (1987) PERB Order No. IR-50 and thereby failed to properly account for the statutory right to strike. The four decisions are: City of San Jose (2010) PERB Decision No. 2141-M; Regents of the University of California (2010) PERB Decision No. 2094-H; Vallejo City Unified School District (1993) PERB Decision No. 1015; and Fremont Unified School District (1990) PERB Order No. IR-54. (p. 18.)

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

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.)

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

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.)

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

Every protected strike does not necessarily have as its motive either pressuring an employer to make concessions in collective bargaining or protesting an alleged unfair practice. (See, e.g., City and County of San Francisco (2017) PERB Decision No. 2536-M, pp. 54-55 (conc. opn. of Banks, M.) [grievance strikes may be protected]; see also National Labor Relations Bd. v. Washington Aluminum Co. (1962) 370 U.S. 9, 14-15 [strike over poor conditions]; Union Electric Co. (1975) 219 NLRB 1081, 1082 [strikes protesting suspensions].) (pp. 23-24, fn. 12.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.02000 – Pre-Impasse

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.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.02000 – Pre-Impasse

A union’s duty to bargain in good faith qualifies its right to strike. If a union engages in a pre-impasse strike, viz., a strike while the parties have not yet reached an impasse (or have reached an initial impasse but have not yet exhausted required impasse resolution procedures), there is “a rebuttable presumption that the union has breached its duty to bargain in good faith.” (County of Trinity (2016) PERB Decision No. 2480-M, p. 3.) The presumption applies only when a strike is pre-impasse. (Ibid.) The most common circumstance in which a strike is not pre-impasse is that the parties have already reached an impasse and completed any required post-impasse procedures. Alternatively, if the employer cannot identify any negotiation for which the union has a duty to bargain, the strike is definitionally not “pre-impasse.” When the presumption applies, it “is rebuttable by proof that the strike was provoked by the employer’s unfair practices and that the employee organization in fact negotiated and/or participated in impasse procedures in good faith.” (Id., p. 3, fn. 3.) Thus, 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.) (p. 23.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.02000 – Pre-Impasse

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.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.02000 – Pre-Impasse

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.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.02000 – Pre-Impasse

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.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.02000 – Pre-Impasse

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.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.04000 – Unfair Practice

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.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.04000 – Unfair Practice

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.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.04000 – Unfair Practice

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.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.05000 – Intermittent

Regents of the University of California (2019) PERB Order No. IR-62-H clarified that repeated strikes by the same employees are protected if: (1) the strikes, in material part, have separate causes such as striking for economic gains, in solidarity with other employee groups, or to protest one or more separate unfair practices; and/or (2) the time between strikes and the amount of notice given do not indicate that employees are retaining the benefits of working and striking at the same time. (Id. at pp. 6-10.) (p. 20, fn. 9.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.10000 – Notice of Intent to Strike

Regents of the University of California (2019) PERB Order No. IR-62-H held that while California’s labor laws do not require strike notice (id. at p. 9), such notice can be relevant to claims of unlawful intermittent striking (ibid.). Moreover, unusually short notice may mean more employees are essential to public safety if the employer loses the opportunity to contract for replacements or take other precatory actions. Finally, in one case the Board held that a surprise teachers’ strike could leave students unsupervised, and the Board therefore directed OGC to seek an injunction requiring the union to provide 60 hours’ strike notice. (San Ramon Valley Unified School District (1984) PERB Order No. IR-46, pp. 15-16.) (p. 20, fn. 9.)

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.11000 – Essential Employees

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.)

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.05000 – 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.)

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.05000 – 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.)

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.05000 – 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.)

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.05000 – 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.)

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.05000 – 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.)

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.05000 – 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.)

1207.00000 – REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF
1207.02000 – Standards for Obtaining Injunctive Relief

The “total breakdown” in education standard that the District raised is relevant only to determining whether it is just and proper to seek injunctive relief limiting an educational strike, after the employer has already satisfied the reasonable cause standard. Here, however, there was no injunctive relief request before the Board. Even were there a “just and proper” inquiry before the Board, the facts were categorically different from the allegations showing a total breakdown in education in Compton Unified School District (1987) PERB Order No. IR-50. (pp. 33-36.)