Board: Employees Have Statutory "Right To Strike"

Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M (Issued on 03/30/15)

This case involves bargaining that occurred during the recession in 2009 and 2010. Like many employers during that time period, the employer in this case proposed concessions. The union refused to agree to them. The employer then declared impasse and imposed its last, best, and final offer (LBFO). The union then filed an unfair practice charge alleging that: 1) the employer engaged in bad faith bargaining leading up to impasse; and 2) the employer unlawful imposed a no-strike provision as part of its LBFO. After a hearing, the administrative law judge (ALJ) issued a proposed decision dismissing the charge in its entirety. The union then filed exceptions with the Board.

The Board affirmed the ALJ’s dismissal of the bad faith bargaining charge. For anyone interested in reading a case that summarizes the state of the law on bad faith bargaining, this is it. The Board spends a lot of time setting forth all the factors to be considered in a bad faith bargaining case. While this decision contains a lot of good learning points, I found the second half of the decision much more fascinating.

In the second half of the decision, the Board overruled the ALJ and held that the employer’s imposition of a no-strike clause at impasse was unlawful. The holding itself is actually not a shock to me, or I suspect, to most experienced practitioners. What was interesting to me was the Board’s rationale for its holding; particularly it’s discussion about the “right to strike.”

The Board begins by noting that the Meyers-Milias-Brown Act (MMBA) is silent on the right to strike. The Board also notes that the MMBA expressly states that it is not intended to make Labor Code 923 applicable to public employees. Labor Code 923 codifies language from the National Labor Relations Act guaranteeing employees the right to engage in “concerted activities.” The Board then reviews past PERB and Court decisions to conclude that, “while not absolute, the right to strike falls within the statutorily-protected right of public-sector employees to participate in union activities.” In reaching this conclusion, the Board expressly overruled the maddeningly confusing Compton case, PERB Decision No. IR-50, to the extent it holds to the contrary. In Compton, Member Porter famously argued that the absence of the phrase “concerted activities” from the statutes administered by PERB signaled a Legislative intent to prohibit public sector strikes.

After concluding that the MMBA contains a right to strike, the Board had little trouble holding that an employer cannot waive or limit such a right when it imposes its LBFO. The Board held that, “Because the right to strike is fundamental to the federal scheme of collective bargaining, it cannot be relinquished by employees, except by consent, in the form of specific contractual language.”

Comments

I have no doubt that one of the goals of this Board is to firmly ensconce the “right to strike” into PERB’s jurisprudence so that there will be no doubts going forward. However, what I found lacking in the Board’s analysis was the same issue that the California Supreme Court left unanswered in County Sanitation. And that is this: Doesn’t the absence of the phrase “concerted activity” mean something? What about the statutory sections that expressly state that Labor Code 923 isn’t applicable? In my humble opinion, the absence of the phrase “concerted activity” must be given some meaning. Indeed, even the Board in this decision characterizes the right to strike as “qualified” and “limited.” I would agree with that. I believe that if there is a right to strike under the MMBA, or any of the other acts administered by PERB, it must be more limited than the right to strike under the NLRA.
What’s an example of a more limited right to strike? Notice, for example. Under the NLRA there is no requirement (other than a statutory exception in a hospital setting) to provide advance notice of a strike. I think PERB precedent holds to the contrary and I’m hopeful that this Board will agree that some amount of notice must be given before a public sector strike. But if you believe that the right to strike under the MMBA is the same as that under the NLRA, how do you impose a notice requirement? That’s why I think the Board needs to provide some guidance on the “limits” of the right to strike.
When I read that the Board overruled Compton, I was sad at first. I still remember trying to decipher the holding in Compton as a new attorney; a task that is next to impossible. Indeed, one of the ways that new labor law attorneys get “hazed” is to assign them to read Compton. So I was sad that I lost this tool of torture. However, I then realized that the Board didn’t completely overrule Compton. Instead, it just overruled Compton to the extent it held there is no right to strike. In essence, the Board erased Member Porter’s portion of the decision. But when you think about it, that just makes the decision even harder to decipher. Indeed, given that Member Porter’s portion of the case is gone, what is left of Compton? I have absolutely no idea.
Lastly, it should be noted that Chair Martinez filed a separate concurrence. Chair Martinez took issue with the majority’s analysis of “waiver.” Accordingly to the concurrence, “The majority’s waiver analysis supports an unprecedented notion that an exclusive representative may be found to have waived collective bargaining rights in the context of a post-impasse unilateral imposition of terms and conditions by the employer depending on the facts of a particular case. The majority’s acceptance of waiver as an appropriate analytical issue in the setting of a post-impasse imposition is the subject of my disagreement.” This is the first time Chair Martinez has filed either a concurrence or dissent; and the first concurrence or dissent by any Member in over a year. I’m not sure how to read into this concurrence but it’s interesting to read.