Pending Legislation Hinders Ability of Public Agencies to Maintain Essential Services During a Strike

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Oct 02, 2023

Editorial note: On October 8, 2023, Governor Newsom vetoed AB 504. His veto message stated, “Unfortunately, this bill is overly broad in scope and impact. The bill has the potential to seriously disrupt or even halt the delivery of critical public services, particularly in places where public services are co-located. This could have significant, negative impacts on a variety of government functions including academic operations for students, provision of services in rural communities where co-location of government agencies is common, and accessibility of a variety of safety net programs for millions of Californians.

Pending California Assembly Bill 504 (Reyes) proposes to establish a fundamental right for public employees to engage in a “sympathy strike.” The bill would amend the Government Code to provide the right of public employees to demonstrate solidarity with other public employees by honoring a strike, or by refusing to enter upon the premises of or perform work for a public employer engaged in a primary strike. The bill has been passed by the state legislature and presented to the Governor for signature.

Under current law, public employers and unions can agree to “no strike” provisions that prohibit sympathy strikes. Under the pending legislation, such agreements would be voided and parties would be required to negotiate new provisions.

This blog post critiques AB 504, which is currently awaiting signature by the Governor. The post first describes how existing law prevents “essential services” workers from striking, and how public employers can negotiate line worker agreements and petition PERB to seek an injunction when such workers threaten to do so. This post describes that, under existing, law, this process is already burdensome and in many cases ineffective. This post then explains how AB 504 will make the process even more unworkable, and thereby disserve the public interest. The right of workers to strike is valuable, but AB 504 is not the way honor it.

Current Limitations on the Ability of Essential Employees to Strike

California public employees represented by labor unions have the legal right to strike. There are a few exceptions where certain employees are prohibited from striking because they are essential to public health and safety.

“Essential services” are services essential to protect the health or safety of the public during a strike. Police officers and firefighters are obvious examples of employees who are essential to public safety. However, other public servants have also been found to be essential during a labor strike. These are typically positions staffed around the clock, such as 911 dispatchers, cooks in detention facilities, staff of special care homes, social workers in charge of emergency child welfare, and animal control officers. Essential positions may also include legal processors in criminal courts, water treatment operators, victim advocates, and IT professionals in charge of public safety technology.

The Current Procedure to Maintain Essential Services During a Strike

Whether employees are essential is considered a “complex and fact-intensive matter.” An employer must clearly demonstrate that disruption of services for the length of the strike would imminently and substantially threaten public health or safety. This determination requires a case-by-case analysis to determine whether the public interest overrides the right to strike.

During a strike, PERB requires that employers make all possible service reductions and consider all “other personnel” who can perform the essential services. “Other personnel” include supervisors, managers, exempted line workers, temporary employees, unrepresented employees, employees represented by non-striking bargaining units, and contractors. If “other personnel” can perform the duty in the event of a strike, generally PERB will not pursue injunctive relief to enjoin striking employees on behalf of the public employer.

Because the extent to which “other personnel” are available to provide essential services is relevant to a request to enjoin essential employees, the ability of any employee to participate in a sympathy strike complicates an employer’s efforts to maintain essential services during a strike.

Procedural Flaws Already Risk the Ability of Employers to Maintain Essential Services

Even with the law as it exists now, the process for an employer to have essential employees enjoined from striking is lengthy and in many cases ineffective. The steps are:

(1) An employer must consider “other personnel” available for coverage, and attempt to negotiate with the striking union to voluntarily exempt some employees from striking (“line workers”);

(2) An employer must file an unfair practice charge (UPC) with PERB asserting that a strike which will threaten public health or safety is imminent, along with a list of any essential positions not covered by “other personnel” or “line workers;”

(3) PERB will evaluate the UPC and decide whether to pursue injunctive relief in superior court to enjoin essential workers from striking;

(4) If PERB agrees that a strike threatening public health or safety is imminent, PERB will file a petition with superior court to enjoin essential employees from striking; and

(5) The superior court will rule on petition for injunctive relief.

This procedure is already in many cases ineffective for a number of reasons. For example:

  • The California Supreme Court has determined that 72 hours’ notice of a strike gives PERB sufficient time to process a petition and seek injunctive relief. While PERB may be able to file a petition in superior court within 72 hours, it is questionable whether a court can make and enforce a ruling within that time frame. Likely, the parties will still be litigating injunctive relief in court after the strike has begun.
  • There is no real recourse for employers to address line workers who fail to appear for work during a strike. While an employer can consider post-strike discipline or an unfair practice charge, by then, the damage to public health and safety is already done.

Likely Confusion from AB 504

AB 504 will create further delay and difficulty in an already burdensome process, further threatening an employers’ ability to maintain essential services.

1. An Employer’s Assessment of “Other Personnel” Available for Coverage Will Be Thwarted.

PERB requires employers to consider coverage options from “other personnel” before petitioning to enjoin a striking employee. However, if any of the “other personnel” can go out on a sympathy strike at any time, it is unclear how employers can make this determination. An employer cannot reasonably rely on “other personnel” if they can decide to go out on a sympathy strike at any time.

If an employer is required to negotiate with, and/or petition to enjoin “other personnel” who can perform essential services during a strike, this will delay an employer’s ability to petition PERB to enjoin essential employees.

Employers will have no timely recourse to address “other personnel” who at first voluntarily agree to cover essential services, and later decide to sympathy strike, putting essential services at risk.

2. Jurisdiction is Unclear.

A public entity’s claim that a threatened public employee strike is illegal generally constitutes an unfair labor practice claim, and therefore the claim, along with the determination of which employees are essential to public health and safety, comes within PERB’s initial jurisdiction.

The amended legislation states that it “does not alter existing law relating to strikes by essential employees as set forth in judicial decisions and decisions of PERB, as promulgated or revised from time to time.” And, PERB has jurisdiction over the chapter of the Government Code which would authorize sympathy strikes under AB 504.

However, under the pending legislation, where an unrepresented employee decides to assert the right to engage in a sympathy strike, no unfair practice will have been committed. Arguably, if an unfair practice claim is not at stake, PERB may not have jurisdiction to decide whether to pursue injunctive relief to enjoin a potential sympathy striker from striking who is (1) represented by a non-striking union or (2) unrepresented. It may be that the employer should file such petitions directly in superior court rather than with PERB. At this point, jurisdiction is murky.

3. Additional Steps Convolute an Already Dysfunctional Process.

The likely additional steps required of a public employer under AB 504 to negotiate with individual sympathy strikers and potentially file separate petitions to enjoin sympathy strikers adds to the already burdensome process employers must follow to protect essential services during a strike. This increases the likelihood that essential workers will not be enjoined before a strike starts, and that public health and safety services will go uncovered.

While the right to strike is an important protected right, it should not be at the cost of public health and safety. If this bill is signed by the Governor, these procedural questions will need to be addressed without delay in order to protect the public and vulnerable residents of local communities.

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