PERB Limits Public Employer Use of Scabs
August 9, 2021 by Andrew BakerThe California Public Employment Relations Board has issued a decision clarifying the right of striking public employees to return to work following a strike and limiting the ability of public employers to use the employment of scabs as an excuse not to allow striking employees to return to work (County of San Joaquin, PERB Dec. No. 2761-M (2021)).
Following a two-day strike, San Joaquin General Hospital refused to allow its striking nurses to return to work for three days. The County argued that the five-day guaranteed contracts it had entered into with scabs hired to replace the nurses during the two-day strike justified its decision to hold the striking nurses out of work for the duration of those contracts.
PERB rejected the County’s argument. First, PERB reiterated that, unlike private sector employers, California public employers may not lock out or permanently replace striking employees. PERB then articulated specific standards that a public employer must meet in order to lawfully keep employees off work following a strike based on temporary replacement worker contracts. The employer must prove that:
(1) it made a good faith effort to negotiate a strike replacement contract that would eliminate any minimum shift guarantee or shorten it to the greatest degree possible; (2) it barred employees from work only because such a contractual commitment temporarily reduced available work opportunities; and (3) it provided the employees’ union with timely notice regarding any decision to guarantee replacement workers a minimum work period, and, if requested, bargained in good faith over the potential effects on bargaining unit employees.
This decision will make it much more difficult for California public employers in the future to use scab contracts as an excuse to deny striking employees the opportunity to return to work immediately upon cessation of a strike.
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