Decision I060C – San Mateo County Superior Court (Service Employees International Union Local 521)

Employer alleged that union’s planned strike would constitute an unfair practice because it included employees the Employer believed provide services essential to public health and safety. A union violates its duty to bargain in good faith if it causes a strike by one or more employees whose absence from work imminently and substantially threatens public health or safety. (City of San Jose, supra, 49 Cal.4th at pp. 606-608; Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, p. 2 (Sacramento County Superior Court).) (p. 3)

Employer alleged that union’s planned strike would constitute an unfair practice because it included employees the Employer believed provide services essential to public health and safety. A union violates its duty to bargain in good faith if it causes a strike by one or more employees whose absence from work imminently and substantially threatens public health or safety. (City of San Jose, supra, 49 Cal.4th at pp. 606-608; Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, p. 2 (Sacramento County Superior Court).) (p. 3)

Because the right to strike “goes to the essence of labor law,” Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 268, if a PERB-covered employer believes a strike should be enjoined, it usually must ask PERB to seek an injunction on its behalf. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 611 (City of San Jose) [city could not establish exception to rule requiring it to seek injunctive relief through PERB, because union gave city 72 hours’ notice of upcoming strike, which was sufficient time for PERB to determine whether to seek injunctive relief and to obtain such relief if warranted]; see San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 13 [recognizing that PERB has “discretion to withhold as well as pursue” a strike injunction]; accord, Ahearn ex rel. NLRB v. International Longshore and Warehouse Union, Locals 21 and 4 (9th Cir. 2013) 721 F.3d 1122, 1130 [private sector employer seeking to enjoin union activity must pursue injunction through the National Labor Relations Board (NLRB)].)

When an employer asks PERB to seek an injunction against a strike that includes allegedly essential employees, PERB makes a preliminary determination as to whether certain positions satisfy the County Sanitation standard. (Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, pp. 3-4, citing County Sanitation District No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564.) PERB assesses each position on a case by case basis.

n assessing whether certain positions satisfy the County Sanitation standard, PERB considers the nature of the services the alleged essential employees perform and whether the employer has clearly demonstrated that disruption of such services for the length of the strike would imminently and substantially threaten public health or safety. (Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, pp. 2-3, citing County Sanitation District No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564.) If the employer has made this showing, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public even after fully accounting for all possible service reductions and coverage options, including: (1) planning to use supervisors, managers, non-bargaining unit personnel, and bargaining unit employees that the union has exempted from the strike or who have affirmatively indicated that they plan to work during the strike; (2) contacting all companies or other entities potentially able to provide replacement employees or services, and contracting with such entities if they indicate they can provide replacements; and (3) documenting the extent to which each of the aforementioned options may or may not be feasible, including the available companies or agencies offering temporary replacements, their responses when contacted, and any resulting contracts. (Id. at pp. 3-4; San Francisco County Superior Court & Region 2 Court Interpreter Employment Relations Committee (2018) PERB Decision No. 2609-I, p. 13.) Finally, for those employees that PERB preliminarily determines to be essential to public health or safety based on the above-described analysis, PERB considers what arrangements will protect the public while infringing as little as possible on employees’ protected rights.

If a union exempts from a planned strike certain employees or positions that PERB has preliminarily found to be essential, such an exemption will normally mean that (1) there is no “reasonable cause” to believe that the union is threatening an unfair practice as to those positions, and (2) injunctive relief is not “just and proper” as to those positions. Nonetheless, both of these criteria may be satisfied—notwithstanding the union’s commitment to exempt certain positions from its strike—if the employer demonstrates that the union has violated or threatened to violate its commitment, or has offered an exemption that is insufficiently broad to protect public health and safety.

There was no reasonable cause to believe a county employee strike would constitute an unfair practice and no basis to seek injunctive relief where the union exempted from the strike each position that PERB preliminarily determined to be essential under the County Sanitation standard.

PERB did not initiate injunction proceedings where the union exempted from the strike each position PERB preliminarily determined to be essential under the County Sanitation standard. PERB explained that if the union had not exempted all of the positions that it preliminarily determined to be essential, it would have sought a temporary restraining order as to the non-exempted essential positions. PERB described methods by which union could notify PERB, the employer, and the affected employees of its decision to exempt certain positions from a strike. PERB would seek immediate injunctive relief if the employer had presented information that the union violated or threatened to violate its agreement to exempt certain positions from the strike.

Because the right to strike “goes to the essence of labor law,” Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 268, if a PERB-covered employer believes a strike should be enjoined, it usually must ask PERB to seek an injunction on its behalf. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 611 (City of San Jose) [city could not establish exception to rule requiring it to seek injunctive relief through PERB, because union gave city 72 hours’ notice of upcoming strike, which was sufficient time for PERB to determine whether to seek injunctive relief and to obtain such relief if warranted]; see San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 13 [recognizing that PERB has “discretion to withhold as well as pursue” a strike injunction]; accord, Ahearn ex rel. NLRB v. International Longshore and Warehouse Union, Locals 21 and 4 (9th Cir. 2013) 721 F.3d 1122, 1130 [private sector employer seeking to enjoin union activity must pursue injunction through the National Labor Relations Board (NLRB)].)

PERB cannot seek an injunction unless it finds (1) “reasonable cause” to believe an unfair practice has been or will be committed; and (2) that injunctive relief is “just and proper.” (Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 895-896 (Modesto); City of Fremont (2013) PERB Order No. IR-57-M, p. 17.) Courts considering PERB’s injunctive relief requests have recognized that PERB’s preliminary determinations are generally afforded deference because PERB is California’s expert public sector labor relations agency, is experienced in assessing complex labor disputes and their impact on the public, and has a dedicated staff of attorneys to study the parties’ submissions in light of previous experience, precedent, and competing interests. (pp. 2-3)

Because the right to strike “goes to the essence of labor law,” Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 268, if a PERB-covered employer believes a strike should be enjoined, it usually must ask PERB to seek an injunction on its behalf. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 611 (City of San Jose) [city could not establish exception to rule requiring it to seek injunctive relief through PERB, because union gave city 72 hours’ notice of upcoming strike, which was sufficient time for PERB to determine whether to seek injunctive relief and to obtain such relief if warranted]; see San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 13 [recognizing that PERB has “discretion to withhold as well as pursue” a strike injunction]; accord, Ahearn ex rel. NLRB v. International Longshore and Warehouse Union, Locals 21 and 4 (9th Cir. 2013) 721 F.3d 1122, 1130 [private sector employer seeking to enjoin union activity must pursue injunction through the National Labor Relations Board (NLRB)].)

When an employer asks PERB to seek an injunction against a strike that includes allegedly essential employees, PERB makes a preliminary determination as to whether certain positions satisfy the County Sanitation standard. (Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, pp. 3-4, citing County Sanitation District No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564.) PERB assesses each position on a case by case basis.

In assessing whether certain positions satisfy the County Sanitation standard, PERB considers the nature of the services the alleged essential employees perform and whether the employer has clearly demonstrated that disruption of such services for the length of the strike would imminently and substantially threaten public health or safety. (Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, pp. 2-3, citing County Sanitation District No. 2 v. Los Angeles County Employees Assn. (1985) 38 Cal.3d 564.) If the employer has made this showing, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public even after fully accounting for all possible service reductions and coverage options, including: (1) planning to use supervisors, managers, non-bargaining unit personnel, and bargaining unit employees that the union has exempted from the strike or who have affirmatively indicated that they plan to work during the strike; (2) contacting all companies or other entities potentially able to provide replacement employees or services, and contracting with such entities if they indicate they can provide replacements; and (3) documenting the extent to which each of the aforementioned options may or may not be feasible, including the available companies or agencies offering temporary replacements, their responses when contacted, and any resulting contracts. (Id. at pp. 3-4; San Francisco County Superior Court & Region 2 Court Interpreter Employment Relations Committee (2018) PERB Decision No. 2609-I, p. 13.) Finally, for those employees that PERB preliminarily determines to be essential to public health or safety based on the above-described analysis, PERB considers what arrangements will protect the public while infringing as little as possible on employees’ protected rights.

If a union exempts from a planned strike certain employees or positions that PERB has preliminarily found to be essential, such an exemption will normally mean that (1) there is no “reasonable cause” to believe that the union is threatening an unfair practice as to those positions, and (2) injunctive relief is not “just and proper” as to those positions. Nonetheless, both of these criteria may be satisfied—notwithstanding the union’s commitment to exempt certain positions from its strike—if the employer demonstrates that the union has violated or threatened to violate its commitment, or has offered an exemption that is insufficiently broad to protect public health and safety.

There was no reasonable cause to believe a county employee strike would constitute an unfair practice and no basis to seek injunctive relief where the union exempted from the strike each position that PERB preliminarily determined to be essential under the County Sanitation standard.

PERB did not initiate injunction proceedings where the union exempted from the strike each position PERB preliminarily determined to be essential under the County Sanitation standard. PERB explained that if the union had not exempted all of the positions that it preliminarily determined to be essential, it would have sought a temporary restraining order as to the non-exempted essential positions. PERB described methods by which union could notify PERB, the employer, and the affected employees of its decision to exempt certain positions from a strike. PERB would seek immediate injunctive relief if the employer had presented information that the union violated or threatened to violate its agreement to exempt certain positions from the strike.

PERB did not initiate injunction proceedings where the union exempted from the strike each position PERB preliminarily determined to be essential under the County Sanitation standard. PERB explained that if the union had not exempted all of the positions that it preliminarily determined to be essential, it would have sought a temporary restraining order as to the non-exempted essential positions. PERB described methods by which union could notify PERB, the employer, and the affected employees of its decision to exempt certain positions from a strike. PERB would seek immediate injunctive relief if the employer had presented information that the union violated or threatened to violate its agreement to exempt certain positions from the strike.