Labor Relations: The Meet and Confer Process

iii. Work Stoppages – Right to Strike PERB has confirmed that the MMBA provides statutory protection for a qualified right to strike, including the right to strike in protest against unfair labor practices, except as limited by other provisions of the MMBA and controlling precedent. 323 If the union in good faith participates in negotiations to impasse, and participates in good faith in any applicable impasse resolution procedures, it may then engage in a strike to the extent such a strike does not pose a “substantial and imminent threat to public health or safety.” 324 However, a strike prior to the completion of impasse procedures will generally constitute an unfair labor practice and a violation of the duty to bargain in good faith that can be enjoined, although the strike may be permissible if in response to an employer’s unfair labor practices. 325 Only firefighters are prohibited by statute from striking or from recognizing a picket line of a labor organization. 326 By judicial decision, police officers are also prohibited from striking due to the threat to public safety. 327 1. Types of Work Stoppages Below is a list of various types of work stoppages. Note that all illegal or prohibited types of strikes are subject to injunction. Illegal Strike: A strike that poses a substantial and imminent threat to health and public safety (i.e. firefighters’ strike); a strike that violates a “no strike” clause; or a strike prior to completion of impasse resolution procedures. Intermittent Strike: A series of intermittent strikes (i.e. one-day long). A series of one-day strikes within two months following completion of impasse procedures was unprotected and an unlawful partial strike. 328 But an employer cannot respond with a lockout or discharge of economic strikers. Economic Strike: A strike to gain concessions at the bargaining table.

Legal Strike: A strike not prohibited by common or statutory law. A legal strike may still be subject to discipline if the strike is not protected under labor statutes.

Partial Strike: A situation in which employees attempt to work and strike at the same time; partial strikes of short duration are presumptively protected.

Protected Strike: A strike protected by labor statutes (e.g., an unfair practice strike).

Sickouts: A labor action where employees refuse to work claiming they are sick. Sickouts are unprotected concerted activity under California public sector labor laws.

Sit-in Strike: Employees stop work, but remain on the employer’s premises in order to prevent work. This is unprotected activity for which employees may be disciplined.

Slowdown: Employees accept compensation while slowing down their production. This is unprotected activity for which employees may be disciplined.

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 75