Governor Brown has signed AB 857 which prohibits PERB from awarding damages “for costs, expenses, or revenue losses incurred during, or as a consequence of, an unlawful
strike.” In essence, this bill abolishes any monetary liability of unions for staging, or threatening to stage, an unlawful strike.
The Governor provided the following signing message:
I am signing Senate Bill 857.
This measure corrects a recent decision by PERB that it has the authority to award damages in response to a threatened strike. The PERB decision was not faithful to current law and could not have reasonably been anticipated by the parties in the underlying dispute.
For the future, I however, would favor legislation authorizing PERB to award damages to a public employer in the event of an unlawful strike or strike threat that necessitates expenditures by the employer to preserve the health and safety of the public. The employer should be required to prove that the claimed expenses were reasonable, were necessary to preserve the public health and safety, and that the employer had no alternative to respond to the emergency without incurring the claimed expenses.
Notably, AB 857 states that it is declaratory of existing law.
This bill was motivated by the California Nurses Association’s threatened strike against the University of California (UC) in 2005. That threatened pre-impasse strike was found to be an unlawful pressure tactic by PERB in 2010. (California Nurses Association (2010) PERB Decision No. 2094-H.) As part of that decision, PERB ordered CNA to pay for any damages suffered by UC. The damages were purportedly going to be in the millions.
The Governor was clearly aware of the CNA case as he mentions it in his signing message. I disagree with the Governor’s statement that the parties could not have reasonably anticipated PERB’s decision as there are many PERB and NLRB decisions suggesting such a result. Because there is PERB and NLRB precedent for the CNA decision, it is not clear to me that the Legislature’s declaration that AB 857 is declaratory of existing law is binding on the courts. In McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, the California Supreme Court held that although the Legislature can change the law going forward, a statutory change “cannot be given an obviously absurd effect, and the court cannot accept the Legislative statement that an unmistakable change in the statute is nothing more than a clarification and restatement of its original terms.” Thus, while AB 857 certainly changes the legal landscape going forward, whether it is entitled to retroactive effect remains to be seen.