Public Employers Must Provide “Specific Evidence” of “Imminent and Substantial Threat to Public Health and Safety” to Stop a Strike

In Sacramento Superior Court (PERB Order No. IR-59-C), the Public Employment Relations Board (PERB) denied the employer’s request to stop certain workers from going on strike based on the employer’s claim that the workers were “essential employees.”  PERB reaffirmed that public employees have the right to strike, unless it can be clearly demonstrated “on a case-by-case basis that their participation in a strike would create an imminent and substantial threat to public health and safety.”

Under statutes enforced by PERB, like the MMBA, PERB is empowered to determine whether a strike by public employees is unlawful.  Should a public employer wish to prevent, or enjoin, the strike, it must ask PERB to go to Superior Court and seek an injunction.  The public employer must convince PERB that there is reasonable cause to believe that the strike is unlawful, and that an injunction against the strike would be “just and proper.”  The California Supreme Court has found that strikes by public employees are lawful unless it is “clearly demonstrated” that the public employees are so essential that their absence would create “a substantial and imminent threat to the health or safety of the public.”

In this case, employees of the Employer, Sacramento Superior Court (“Employer”), in various classifications including courtroom clerks and court reporters, gave the Employer one-week notice of a planned two-day strike.  The Union contract expired prior to the one-week notice.  The Employer filed a request for a preliminary injunction to stop the strike.

PERB rejected the Employer’s request for injunctive relief because it found the Employer had failed to demonstrate that the allegedly “essential” employees were necessary to preserve public health and safety during a two-day strike.

Among the deficiencies in the Employer’s request, PERB found that the Employer did not demonstrate “that it could not use managers or supervisors to perform the functions of court clerks.”  The Employer also failed to show that it could not “procure sufficient replacement” court reporters from local agencies.  PERB also found that the Employer should have identified “the specific level and nature of services that must be maintained to preserve public health and safety.”  Finally, PERB found that the Employer failed to provide “specific evidence” that one of the departments it sought to keep open was necessary to maintaining public health and safety.  That suggests that it is the employer’s burden to provide specific evidence that the services it seeks to maintain during a strike are necessary to maintain public health and safety.

This important decision clarifies the high burden public employers must meet to convince PERB to seek an injunction against striking workers.  Public employers must provide specific evidence to explain why the services must be preserved, why the workers in question are “essential,” and the efforts the employer has taken to cover for those workers should they go on strike.

For more information about the right to strike under the Trial Court Act, or other public sector labor laws, please contact your labor law counsel.

By Rob Szykowny and Jake White | January 20, 2016

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