facebook twitter linkedin youtube

Oakland: 510.625.9700 | Sacramento: 916.325.2100

PERB Affirms Public Employee Right to Strike

April 27, 2015 by

A nagging technical question that has been buried in the bowels of the California court and PERB decisions addressing public employee strikes has now been answered squarely and resoundingly by a PERB decision affirming the protected right of public employees to strike.

Ever since the California Supreme Court in 1985 declared that nothing in California law prohibits public employees from striking (with the exception of firefighters and essential employees whose work stoppage would create “a substantial and imminent threat to the health or safety of the public”), it has been generally assumed that California’s public employees have a protected right to strike.  But that Supreme Court decision stopped short of acknowledging a right to strike based on the Meyers-Milias-Brown Act, and an old PERB decision from 1987 actually suggested that EERA-covered employees (e.g., school employees), do not have an EERA-protected right to strike.

But in a decision involving the Fresno County In-Home Services Authority issued March 30, PERB declared unequivocally that “strikes by public employees are statutorily protected, except as limited by other provisions of the MMBA or other public-sector labor relations statutes and controlling precedent.”  In so ruling, PERB expressly overruled the 1987 decision to the extent it ruled there is no statutorily-protected right to strike.

Given that it has been understood that California law does not prohibit strikes, why does it matter that PERB has now clarified that public employees have a protected right to strike?  Well, in the case that generated this decision, PERB used its finding of a protected right to strike to rule that the Fresno County Authority could not impose a ban on strikes following an impasse in MOU negotiations.  More broadly, it is clear now that if a public employer disciplines or discharges or otherwise discriminates against an employee simply for engaging in what is otherwise lawful strike activity, the employee has a valid claim for relief against the employer with PERB.

There has been recent activity to pass legislation to ban strikes of BART employees (Contra Costa Times). Such a ban may have difficulty passing but there will continue to be legal challenges to the rights of unions representing both public and private employees.  You can follow some of the legal trends and efforts to protect job rights of all employees through Beeson, Tayer and Bodine’s (BT&B) blog and newsletter.

For an interesting look at the right to organize and strike and the connection to civil rights in general, we recommend the referenced article Labor Law Won’t Save Us: The strike is still our strongest weapon, by Joe Burns.  Below we provide some other related articles.

The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.