Decision I062H – Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 and University Professional and Technical Employees Communication Workers of America Local 9119)

When an employer refuses to yield, whether on questions concerning its bargaining proposals or alleged unfair conduct, a strike becomes the ultimate, and often only, recourse available to employees. While the right to strike may be qualified depending on the circumstances, e.g., pre- or post-impasse, the protected activity itself is always meant to impose a cost on the employer. In other words, every strike is meant to inflict economic harm on the employer to achieve the union’s collective goals. If the Board were to accept the notion that a protected strike becomes unprotected (or unlawful, as the University here contends) simply because it threatens “disproportionate” economic harm to the employer, then public employees would have the right to engage only in those work stoppages that their employers are economically prepared and willing to resist. This would blunt the ultimate tool for forcing the employer to bargain in good faith, and for no other purpose than to save employers money. Furthermore, it would encourage a rule which focuses on the proportionality of harm suffered by the employer versus striking employees, without any metric to consider the risks and costs borne by individuals. In other words, far from encouraging a resolution, an injunction to prevent vigorous strike activity would tend only to prolong the parties’ dispute. (pp. 10-11.)

The Board found that the record of five short-duration strikes over the course of one year did not provide reasonable cause to believe the Unions’ presumptively protected activities were unlawfully intermittent because the walkouts were: (1) called by different bargaining units, with others going out in sympathy; (2) in part precipitated or provoked by a public employer’s alleged unfair conduct; (3) preceded by a notice period of sufficient length to permit the University to prepare for continued operations during the strike; and (4) separated by variable intervals of time sufficient to dispel the notion that the Unions planned their activities in advance or embarked on a coordinated strategy of rolling economic strikes. While the presence of any of these indicia may be sufficient to rebut an intermittent strike allegation, insofar as the Unions’ strikes presented all four, there was no reasonable cause to believe their activities were unlawful. Finally, even if there was reasonable cause to believe an unfair practice occurred, the University’s contention that these strikes would cause disproportionate economic harm did not demonstrate that an injunction would be just and proper. (pp. 2-3.)

The Board relied on facts developed in the General Counsel’s investigation of the University’s injunction request and supporting unfair practice charges to assess the existence of reasonable cause. In doing so, the Board found no pattern of conduct that it believed constituted an unlawful pressure tactic. First, the first three strikes were called by different bargaining units, with the remainder choosing to give notice of their intent to respect the primary picket line and strike in sympathy. Second, the two most recent of these strikes were preceded by the filing of various unfair practice charges. 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. Indeed work stoppages that respond to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for a single goal, and are therefore protected. Third, the Unions gave ample notice of their intent to strike, thus enabling the University to prepare continuity plans well in advance of each walkout. Finally, a significant period of time elapsed between each strike, indicating again that the Unions did not intend to pick and choose when to work without any regard for the safe and efficient operation of the workplace. (pp. 7-9.)

Three out of five strikes at issue in employer’s request for injunctive relief were called by different bargaining units, with the remainder choosing to give notice of their intent to respect the primary picket line and strike in sympathy. This series of primary and sympathy strikes could as easily be characterized as a reflection of the University’s decision to bargain separately with each bargaining unit. That is, each bargaining unit maintained a separate and distinct right to take what actions it considered necessary to protect its members and position at the bargaining table. The Board would not infer impermissible coordination based solely on the University’s “information and belief” that such coordination must be present [citation], because such unsupported allegations could not overcome the Unions’ established and presumptive right to exercise the ultimate recourse to strike and to stand in solidarity with their sister employee organizations. (pp. 7-8.)

Two out of five strikes at issue in employer’s request for injunctive relief were preceded by the filing of various unfair practice charges. 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, and the Board is not at liberty to ignore such charges when faced with a request to enjoin strike activity. Thus, the Board could not infer an unlawful intent to engage in an intermittent strike when the employer’s alleged unfair practices were squarely at issue. Indeed work stoppages that respond to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for a single goal, and are therefore protected. (p. 8.)

The Unions gave ample notice of their intent to strike, thus enabling the University to prepare continuity plans well in advance of each walkout. While such notice is not statutorily required, the fact that the Unions gave more than 10-days’ notice for each strike indicates that they did not convert their protected activities into an unlawful pressure tactic. At the very least, this advance notice was completely inconsistent with the notion that these were “‘hit and run’ strikes engaged in as part of a planned strategy intended ‘to harass the company into a state of confusion[.]’” [Citation.] (p. 9.)

Like any type of protected concerted activity, strikes require a certain degree of coordination to be successful. That degree necessarily increases when unions commit to giving the employer advanced notice of their intent to strike, as occurred here. The Board could not understand the University’s charge to have alleged that any and all such coordination was evidence of an unlawful pressure tactic because such an assertion would undermine the very possibility of concerted activities like sympathy strikes, which are clearly protected under PERB law. (p. 7, fn. 6.)

When an employer refuses to yield, whether on questions concerning its bargaining proposals or alleged unfair conduct, a strike becomes the ultimate, and often only, recourse available to employees. While the right to strike may be qualified depending on the circumstances, e.g., pre- or post-impasse, the protected activity itself is always meant to impose a cost on the employer. In other words, every strike is meant to inflict economic harm on the employer to achieve the union’s collective goals. If the Board were to accept the notion that a protected strike becomes unprotected (or unlawful, as the University here contends) simply because it threatens “disproportionate” economic harm to the employer, then public employees would have the right to engage only in those work stoppages that their employers are economically prepared and willing to resist. This would blunt the ultimate tool for forcing the employer to bargain in good faith, and for no other purpose than to save employers money. Furthermore, it would encourage a rule which focuses on the proportionality of harm suffered by the employer versus striking employees, without any metric to consider the risks and costs borne by individuals. In other words, far from encouraging a resolution, an injunction to prevent vigorous strike activity would tend only to prolong the parties’ dispute. (pp. 10-11.)

The Board relied on facts developed in the General Counsel’s investigation of the University’s injunction request and supporting unfair practice charges to assess the existence of reasonable cause. In doing so, the Board found no pattern of conduct that it believed constituted an unlawful pressure tactic. First, the first three strikes were called by different bargaining units, with the remainder choosing to give notice of their intent to respect the primary picket line and strike in sympathy. Second, the two most recent of these strikes were preceded by the filing of various unfair practice charges. 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. Indeed work stoppages that respond to distinct employer actions or issues, even if close in time, are simply not pursuant to a plan to strike intermittently for a single goal, and are therefore protected. Third, the Unions gave ample notice of their intent to strike, thus enabling the University to prepare continuity plans well in advance of each walkout. Finally, a significant period of time elapsed between each strike, indicating again that the Unions did not intend to pick and choose when to work without any regard for the safe and efficient operation of the workplace. (pp. 7-9.)

Like any type of protected concerted activity, strikes require a certain degree of coordination to be successful. That degree necessarily increases when unions commit to giving the employer advanced notice of their intent to strike, as occurred here. The Board could not understand the University’s charge to have alleged that any and all such coordination was evidence of an unlawful pressure tactic because such an assertion would undermine the very possibility of concerted activities like sympathy strikes, which are clearly protected under PERB law. (p. 7, fn. 6.)

The statutory limitation on the Board’s remedial authority to award damages should it later conclude that the Unions’ strikes were unlawful in no way renders meaningless the Board’s procedures or power in general. For instance, if the University’s charges merit complaints and its evidence ultimately supports an unfair practice finding, the Board would, at a minimum, order each offending party to cease and desist its unlawful conduct. In reminding the Board that it lacks the power to issue strike damages, Government Code section 3563.3 does not undermine the efficacy of such customary remedies or otherwise alter the equitable balance it must strike in these cases. Likewise, the Legislature’s limitation of the Board’s authority does not create a new expansive mandate to seek injunctions against striking employees and their organizations. (pp. 11-12.)

The Board found that the record of five short-duration strikes over the course of one year did not provide reasonable cause to believe the Unions’ presumptively protected activities were unlawfully intermittent because the walkouts were: (1) called by different bargaining units, with others going out in sympathy; (2) in part precipitated or provoked by a public employer’s alleged unfair conduct; (3) preceded by a notice period of sufficient length to permit the University to prepare for continued operations during the strike; and (4) separated by variable intervals of time sufficient to dispel the notion that the Unions planned their activities in advance or embarked on a coordinated strategy of rolling economic strikes. While the presence of any of these indicia may be sufficient to rebut an intermittent strike allegation, insofar as the Unions’ strikes presented all four, there was no reasonable cause to believe their activities were unlawful. Finally, even if there were reasonable cause to believe an unfair practice occurred, the University’s contention that these strikes would cause disproportionate economic harm did not demonstrate that an injunction would be just and proper. (pp. 2-3.)

“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.’” (San Mateo County Superior Court (2019) PERB Order No. IR-60-C, p. 2, citing Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 895-896.) (p. 2.)

The presence of any one of the countervailing indicia of lawful intent could well establish that a union’s series of strikes was motivated by distinct, lawful reasons. Here, the fact that the Unions’ walkouts occurred under circumstances indicating several indicia of lawful intent strongly militated against the necessary finding of reasonable cause, i.e., it was far from “probable that a violation of the Act has been committed.” [Citation.] Conversely, direct, incontrovertible evidence of unlawful intent could well require an intermittent strike finding even in the presence of these and other indicia of lawful intent. (pp. 9-10.)

In addition to its failure to establish a substantial or non-frivolous theory of an unfair practice, the University’s charges raised no colorable claim that “there exists a probability that the purposes of the [HEERA] will be frustrated unless temporary relief is granted . . . [or] the circumstances of a case create a reasonable apprehension that the efficacy of the Board’s final order may be nullified, or the administrative procedures will be rendered meaningless.” [Citation.] This is because the University complained only that the strikes would inflict “a disproportionate level economic harm,” which, even if true, did not warrant injunctive relief in this case. (p. 10.)

The University’s “disproportionate economic impact” theory also failed because it did not marshal meaningful evidence to support the argument’s factual predicate. The only evidence the University presented about disproportionate economic impact came from one paragraph in a declaration from the University’s Executive Director of Labor Relations, that he is “informed and believe[s] that virtually all the private companies that provide replacement workers during a strike require at least a 36-hour commitment” and that he is “informed and believe[s]” the cost of a replacement is “at least 1 to 3 times more than the cost of a University employee.” Neither of these statements gave evidence about the actual cost of the University’s replacement workers for the strikes at issue. (p. 11, fn. 9.)

The Board would not infer impermissible coordination based solely on the employer’s “information and belief” that such coordination must be present [citation], because such unsupported allegations could not overcome the unions’ established and presumptive right to exercise the ultimate recourse to strike and to stand in solidarity with their sister employee organizations. (p. 8.)