Decision I061M – County of San Mateo

A union violates its duty to bargain in good faith if it holds a strike by one or more employees whose absence from work imminently and substantially threatens public health or safety. When an employer asks PERB to seek an injunction against a strike that includes allegedly essential employees, PERB assesses each position on a case by case basis. In determining whether a particular employee’s job is so essential that the employee may not legally strike, PERB considers the nature of the services the employee performs 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. If PERB finds that a lapse in the public service would imminently and substantially threaten the public health or safety, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public after accounting for all possible service reductions and coverage options. PERB will exclude from its injunctive relief request to the court any positions that PERB has preliminarily found to be essential if the union agrees to exempt those positions from a planned strike.

A strike that occurs prior to impasse and completion of any statutorily-required impasse resolution procedures creates a rebuttable presumption that the union has breached its duty to bargain in good faith. (County of Trinity (United Public Employees of California, Local 792) (2016) PERB Decision No. 2480-M, p. 3 (Trinity).) After bargaining parties have reached a bona fide impasse and exhausted any mandatory impasse resolution procedures, public sector strikes are governed by the same rules as apply in the private sector (City of San Jose (2013) PERB Decision No. 2341-M, p. 39), except that an employer’s “substantial concession” post-impasse might temporarily re-institute the aforementioned rebuttable presumption, until a new impasse is reached. (Trinity, supra, PERB Decision No. 2480-M, p. 5.) PERB denied County’s requests to enjoin strikes, finding no reasonable cause to believe that rebuttable presumption against pre-impasse strikes applied to the noticed strikes. Board therefore did not consider whether union could rebut such a presumption, nor did Board consider whether an injunction prohibiting union from proceeding with its strikes might be just and proper.

A strike that occurs prior to impasse and completion of any statutorily-required impasse resolution procedures creates a rebuttable presumption that the union has breached its duty to bargain in good faith. (County of Trinity (United Public Employees of California, Local 792) (2016) PERB Decision No. 2480-M, p. 3 (Trinity).) After bargaining parties have reached a bona fide impasse and exhausted any mandatory impasse resolution procedures, public sector strikes are governed by the same rules as apply in the private sector (City of San Jose (2013) PERB Decision No. 2341-M, p. 39), except that an employer’s “substantial concession” post-impasse might temporarily re-institute the aforementioned rebuttable presumption, until a new impasse is reached. (Trinity, supra, PERB Decision No. 2480-M, p. 5.)

In City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, the Supreme Court ruled that 72 hours’ strike notice is long enough for PERB injunctive relief procedures to apply, and in such circumstances, a PERB-covered employer can only seek a strike injunction by asking PERB to seek an injunction on its behalf. PERB makes a preliminary determination as to whether certain positions satisfy the County Sanitation standard, viz. the nature of the services the employee performs 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. If PERB finds that a lapse in the public service would imminently and substantially threaten the public health or safety, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public after 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 what arrangements will protect the public while infringing as little as possible on employees’ protected rights.

PERB will exclude from its injunctive relief request to the court any positions that PERB has preliminarily found to be essential if the union agrees to exempt those positions from a planned strike. In some cases, the public may be sufficiently protected if the essential employees are on call, i.e., ready to cross the picket line if needed in the event of an emergency. (San Mateo Superior Court (2019) PERB Order No. IR-60-C, p 5, fn. 3.) A striking union need not use any particular format in notifying PERB, the employer, and the affected employees if the union decides to narrow the scope of its planned strike. (Id. at p. 7.) 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. (Id., p. 5.)

PERB partially granted injunctive relief request as to public safety dispatchers, a detention facility cook, a supervising stationary engineer, a boiler watch engineer, a juvenile group home administrator, juvenile group home residential counselors, a hazmat emergency response team lead, adult protective services employees, a deputy public guardian, inpatient pharmacists, and clinical laboratory scientists. PERB denied injunctive relief request as to detention facility food service workers, utility workers, autopsy technicians, airport employees, social workers, social work supervisors, benefits analysts, psychiatric social workers, supervising mental health clinicians, case management specialists, mental health program specialists, supervising dieticians, microbiologists, community workers, and the following categories of health care workers: outpatient pharmacists, respiratory therapists, dietitians, physical and occupational therapists, speech pathologists, laboratory assistants, medical and dental assistants, pharmacy technicians, sterile processing technicians, surgical technicians, supply assistants, telephone operators, cooks, and food service workers, as well as radiologic technologists, imaging specialists, and electrograph technicians who conduct and process x-ray, CT, MRI, EEG, EKG, EMG, and ultrasound tests.

Health care positions that are not filled on certain holidays and weekend days found not essential.

In considering the nature of the services, one relevant factor is the extent to which the employer is playing a role that is distinct from private entities providing similar services, whose employees are free to strike without any court or regulatory body considering the impact on the public. Medical centers, for instance, frequently move back and forth between the public and private sectors.

If hospital eschews national striker replacement companies or other available options that might wholly or partially obviate the need for an injunction, hospital undercuts its own request for injunctive relief. Cost rationale is insufficient reason to seek injunction rather than use replacements. A hospital employer seeking injunctive relief must provide PERB with its specific requests to local and national companies potentially capable of providing replacement employees, as well as those companies’ specific responses to such requests. As with other information that the parties provide during injunctive relief proceedings, an employer must provide updates as replacement availability changes, as employer is unlikely to have received a final and definitive response to its request by the time the employer first files its initial request for injunctive relief.

PERB denied County’s requests to enjoin strikes, finding no reasonable cause to believe that rebuttable presumption against pre-impasse strikes applied to the noticed strikes. Because Board found no reasonable cause to believe that a rebuttable presumption against pre-impasse strikes applied to noticed strikes, Board did not consider whether union could rebut such a presumption, nor did Board consider whether an injunction prohibiting union from proceeding with its strikes might be just and proper.

In City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, the Supreme Court ruled that 72 hours’ strike notice is long enough for PERB injunctive relief procedures to apply, and in such circumstances, a PERB-covered employer can only seek a strike injunction by asking PERB to seek an injunction on its behalf. PERB makes a preliminary determination as to whether certain positions satisfy the County Sanitation standard, viz. the nature of the services the employee performs 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. If PERB finds that a lapse in the public service would imminently and substantially threaten the public health or safety, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public after 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 what arrangements will protect the public while infringing as little as possible on employees’ protected rights.

PERB will exclude from its injunctive relief request to the court any positions that PERB has preliminarily found to be essential if the union agrees to exempt those positions from a planned strike. In some cases, the public may be sufficiently protected if the essential employees are on call, i.e., ready to cross the picket line if needed in the event of an emergency. (San Mateo Superior Court (2019) PERB Order No. IR-60-C, p 5, fn. 3.) A striking union need not use any particular format in notifying PERB, the employer, and the affected employees if the union decides to narrow the scope of its planned strike. (Id. at p. 7.) 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. (Id., p. 5.)

An employer asking for extraordinary injunctive relief is required to provide PERB with detailed information, documenting the available non-striking supervisors and managers and to what extent they are able to cover for striking workers, as well as contacting outside companies and agencies and documenting their responses. This level of detail allows an employer to demonstrate clearly the extent of remaining need after accounting for all coverage options. In strikes of short duration, PERB will also consider holiday and weekend staffing levels and the extent to which the employer can lessen a strike’s impacts by authorizing weekday and weekend overtime work before and after the strike, or offering evening or weekend services before and/or after a scheduled strike.

PERB will exclude from its injunctive relief request to the court any positions that PERB has preliminarily found to be essential if the union agrees to exempt those positions from a planned strike. In some cases, the public may be sufficiently protected if the essential employees are on call, i.e., ready to cross the picket line if needed in the event of an emergency. (San Mateo Superior Court (2019) PERB Order No. IR-60-C, p 5, fn. 3.) A striking union need not use any particular format in notifying PERB, the employer, and the affected employees if the union decides to narrow the scope of its planned strike. (Id. at p. 7.) 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. (Id., p. 5.)