PERB holds that strikes constitute protected activities under public sector labor laws

In Fresno County In-Home Supportive Services, PERB recently held that strikes and strike-related conduct constitute protected activities under the Meyers-Milias-Brown Act and other public sector labor-relations laws.

In 1985, the California Supreme Court stated that public employees have a basic right to strike, unless it is clearly shown that the strike poses a substantial, imminent threat to public health and safety.  That case was called County Sanitation District No. 2 of Los Angeles County v. Los Angeles County Employees’ Association, or “County Sanitation” for short.  County Sanitation clearly established that a strike in the public sector is not illegal, absent a clear threat to public health and safety.  However, it was up to PERB to decide whether or not the public sector labor laws affirmatively protect strikes and strike-related conduct (such as preparations for strikes).

In Fresno County In-Home Supportive Services, PERB has provided a clear answer to that question.  The employer had bargained to impasse and had imposed its last, best, and final offer.  During the negotiations, the employer and the union reached a tentative agreement on a no-strike clause, but they were unable to agree upon wages and benefits.  The last, best and final offer included the no-strike clause.

PERB held that public employees enjoy a “statutorily-protected right to strike“ under public sector labor laws, and for that reason an employer cannot impose a no-strike clause, even after bargaining in good faith to a genuine impasse.  An employer is required to remove a no-strike clause when imposing a last, best and final offer.  “[P]ermitting one side to compel a waiver of a statutorily-protected right…would undermine the fundamental principles of collective bargaining.”

The determination that labor law protects strikes and related conduct also means that a union may support a strike without being charged with failing to bargain in good faith, assuming its conduct is otherwise lawful.  In addition, it means that a public employer may not legally discipline employees for engaging in a lawful strike.

For more information regarding public sector law and strikes, contact your labor law counsel.

By Anne Yen | June 23, 2015

Legal Developments