Public Employment Relations Board Provides Rare Overview of the Qualified Right to Strike in Context of Pre-Impasse “Protest” Strike

08.05.2024

In Oakland Unified School District (2024) PERB Dec. No. 2906, the Public Employment Relations Board (“PERB” or “Board”) chose to summarize the state of the law concerning unions’ statutory, qualified right to strike, in the context of a pre-impasse strike in which the union protested the Oakland Unified School District’s (“District”) unilateral decision to implement school closures. The Board issued this decision, following an earlier case which had resulted in a finding that the District’s decision to implement a school closure without following a prior nine-month planning period constituted a unilateral change unfair practice.[1]  The Board clearly found that the statutory right to strike is protected under labor law, and provided useful standards for evaluating when a strike retains this protection when the union protests an employer’s alleged unlawful conduct.

Background

This strike-based dispute arose in the context of negotiations, which gave rise to a separate unfair practice proceeding. The District and Oakland Education Association (“Union”) agreed on a resolution entitled “Improving Community Engagement for Proposed School Changes,” which required that the District and Union meet and negotiate for at least nine months (unless agreement were reached) over the effects of the District's proposed decision to close, merge, and/or consolidate public schools. The District maintained that the decision itself to take such action was not negotiable, and the Union did not dispute this.

In December 2021, the Board of Education directed the District Superintendent to present a list of school consolidations to effectuate a specified budgetary saving, through a proposed resolution.  The resolution explicitly waived the requirement that the District meet with the Union for at least nine months before taking such action. On January 31, 2022, the Superintendent provided the Board of Education with such a list, with the proposed closures, mergers, and/or grade truncation set to take effect by June 2022. The District did not provide the Union with notice or the opportunity to bargain before the Board of Education issued the proposed resolution. Further, while the Union demanded to bargain over the Board of Education’s decision to waive the nine-month notice rule, the District refused.  The Board of Education voted several days later (i.e. early February 2022) to finalize the proposed resolution to implement the list of schools slated for closure or merger at the close of the 2021-2022 school year.

On February 15, 2022, the Union filed its initial unfair practice charge, concerning the alleged unilateral decision to waive the nine-month notice rule for school closures.  The District contended that it owed no decisional or effects bargaining obligations on this subject, but nonetheless offered to bargain on effects. The Union chose not to respond.  While this initial UPC dispute was pending before PERB, the Union held a strike vote for membership in late April 2022.  Following an overwhelming vote to authorize a strike, the Union notified the District on April 25, 2022 that it intended to hold a strike for one day (on April 29) to protest the District’s actions concerning the school closures.   The District filed its own unfair practice charge on April 27, 2022, and filed a request for injunctive relief to enjoin the planned one-day strike.  PERB denied the injunctive relief request, but expedited the matter.  The District alleged that the Union failed to bargain on effects arising from the school closure decision, and that the Union engaged in an unlawful pre-impasse strike.

The parties agreed to allow the earlier dispute to proceed before the District’s charge would be adjudicated by an ALJ.  Following the Board’s decision (i.e. Dec. No. 2875), the ALJ issued a proposed decision in this case, finding that the Union engaged in a protected strike by protesting the purported bad faith conduct engaged in by the District.  The District appealed the decision.

PERB’s Decision

a.  The Statutory, Qualified Right to Strike

The Board began by providing an overview of the statutory, qualified right to strike, as the District’s appeal centered on a challenge to the scope of this right.  Specifically, the District argued that “there is no statutory basis for the right to strike in protest of an unfair practice.”  (Oakland USD, supra, Dec. No. 2906, at p. 13.)  The Board chose to address this argument, given its importance to the dispute.

The Board provided a historical overview of the evolution of this right, ultimately concluding that employees have a statutory, qualified right to strike under EERA and the MMBA.[2]  For example, PERB observed that while the underlying reasoning shifted over the years, both the courts (e.g. County Sanitation) and the Board itself (e.g. Fresno County IHSSPA) concluded that the MMBA contained a statutory right to strike subject to certain qualifications or limits.  PERB heavily relied on two California Supreme Court decisions (arising under the MMBA) as providing clear support for this statutory right to strike, which found this right clearly established despite the absence of an express provision in the MMBA or EERA for a right to strike.  (Oakland USD, supra, Dec. No. 2906, pp. 17-18 [citing County Sanitation & City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597].)  The Board also noted that since Fresno County IHSSPA, it has issued numerous decisions finding a qualified, statutory right to strike.[3]

The Board also provided welcome clarity on one qualification or limitation on this statutory right to strike.  PERB held that the right to strike “is qualified only to the extent it is inconsistent with another [statutory] provision – the duty to bargain in good faith.”  (Oakland USD, supra, Dec. No. 2906 at p. 19.)  Thus, a strike loses its statutory protection and constitutes per se bad faith bargaining if one of the following conditions is true: (1) imminently and substantially threatens the public health or safety; (2) uses tactics in which employees retain the benefits of working and striking at the same time;  (3) constitutes a unilateral change in the status quo as set forth in an operative no-strike agreement; 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.  (Ibid, at pp. 19-20 [citing judicial case law and PERB cases involving each instance].)

b.  Application to Case

The Board turned to apply this reiterated legal standard to the facts of the case, namely, whether the Union’s one-day strike constituted an unlawful pre-impasse strike.  If an employer alleges that the union engaged in a strike before the parties reached impasse (or failed to exhaust post-impasse procedures), a rebuttable presumption arises that the union violated labor law.  PERB observed that this presumption “is rebuttable by proof that the strike was provoked by the employer’s unfair practices and that the [Union] in fact negotiated and/or participated in impasse procedures in good faith.”  (Id. at p. 23.)  The Board provided useful clarity on how this presumption operates in the context of parallel unfair practice proceedings. If the employer successfully defends against an unfair practice charge relating to the conduct at issue in the strike, the presumption stands (i.e. the strike is deemed per se unlawful).  (Id. at p. 24.)  Further, the union must provide evidence to show that the employer’s conduct was one “material or substantial cause of the strike”, in order to rebut the presumption and show that the strike constituted a protected “protest” strike.  (Id.)  On this later point, the Board explained that circumstantial evidence informs this question of causality, i.e. that the employer’s alleged unfair practices caused or provoked the strike.  Among other factors, the Board cited to the following as relevant on the question of motive: (a) the Union’s strike announcement or notice; (b) contemporaneous statements, messaging, and materials; (c) witness testimony; (d) the strike’s timing; (e) the violation nature and seriousness; and (f) whether the Union opposed the purported unfair practice prior to engaging in the strike. (Id. at pp. 24-25.) 

The Board found that the Union had clearly rebutted the presumption that its strike was an unlawful pre-impasse strike. Based on the findings of the earlier decision and the record in the case, PERB found that the District had frustrated any ability to engage in effects bargaining (i.e. on the school closure issue) by acting unilaterally, and the Union had contemporaneously (and repeatedly) conveyed its opposition to the District’s actions through public messaging.  The Board also noted that the seriousness of the District’s actions (found to constitute a unilateral change violation in the Board’s earlier decision) supported finding that the Union sought to protest both the school closure decision as well as the District’s bad faith in failing to follow the nine-month meeting rule.  (Id. at pp. 31-32.)  Given the weight of evidence supporting the Union’s contention that the District’s conduct caused the strike, the Board found the presumption rebutted and the strike to be protected.  Consequently, the Board affirmed the ALJ’s conclusion and dismissed the claims.

Implications of Decision

This decision is noteworthy for several reasons.  First, PERB provides a rare and unambiguous overview of the statutory right to strike under both EERA and the MMBA, in the context of the bargaining process.  The decision is helpful in guiding employers and recognized unions in evaluating the contours of this qualified right.

Second, the Board provided helpful circumstantial factors for evaluating whether a union’s pre-impasse strike was “caused” by an employer’s allegedly unlawful conduct, and thus qualifies as a protected “protest” strike.  PERB also directed unions and the management community alike that unions are not required to prove that a pre-impasse strike was a “last resort”, in order to demonstrate that the strike was protected under labor law.  This point had arisen sporadically in past strike-related disputes; it is no longer available to employers.

Finally, the decision illustrates that PERB will broadly view employer-filed unfair practice charges with a skeptical eye, particularly when they pivot on the contention that represented employees lost the protection of labor law by engaging in otherwise-protected activity – such as a strike.  Employers would do well to proceed cautiously in how they respond to such potentially-protected conduct, whether it involves litigation or internal adverse action.

Please feel free to contact the authors of this alert or your regular AALRR counsel with questions or to strategize about the impact of this decision on your agency.

[1] See Oakland Unified School District (2023) PERB Dec. No. 2875.

[2] The Board cited several key decisions in this respect, including County of Sanitation Dist. No. 2 v. Los Angeles Modesto City Schools (1983) PERB Dec. No. 291 (EERA’s statutory language mirrors NLRA, and contains right to strike), County Sanitation District No. 2 v. Los Angeles County Employees Assn. (“County Sanitation”) (1985) 38 Cal. 3d 564 (common law limitation on right to strike under MMBA), and Fresno County In-Home Supportive Services Public Authority (“Fresno County IHSSPA”) (2015) PERB Dec. No. 2418-M (reaffirming statutory right to strike under MMBA and EERA).

[3] See City and County of San Francisco (2023) PERB Dec. No. 2867-M; County of San Joaquin (2021) PERB Dec. No. 2761-M; Regents of University of California (2019) PERB Order No. IR-62-H; Los Angeles County Superior Court (2018) PERB Dec. No. 2566-C; City and County of San Francisco (2017) PERB Dec. No. 2536-M.

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