PERB Rules On Public Employee Strikes and Damages Remedy

In a groundbreaking precedent, the California Public Employment Relations Board (PERB) has clarified that employee organizations possess the right to strike, provided the union has gone through bargaining to impasse. If a union calls a strike short of completing the impasse procedure, the action will be unfair labor practice. In such a case, said PERB in California Nurses Association v. Regents of the University of California (PERB Decision 2094-H), the improper strike activity can subject a union to damages suffered by the employer. The case is the first time PERB has ruled on its authority to award strike damages to employers. And although the case involved the Higher Education Employer-Employee Relations Act (“HEERA,” Cal. Gov. Code §§ 3560, et seq.), the language of the decision is quite broad and would appear to cover K-12 employee organizations as well, who are governed by the Educational Employe Relations Act (“EERA,” Cal. Gov. Code §§ 3540, et seq.). As PERB noted, if the parties have bargained through impasse and not resolved their differences, the employee organization can call a strike, but at the same time, the employer is free to implement its last, best and final offer. The problem in the nurse’s case, was that the parties had not completed the impasse procedures and the strike was seen as unfair economic pressure exerted against the employer. The union argued that an exception to the impasse rule applied, contending that there is no illegal strike when an employee organization goes out on an “unfair labor practice strike,” which is concerted action in response to an employer’s unfair labor practice. While PERB acknowledged the point, it noted that the nurses had not demonstrated that the Regents had engaged in an unfair practice. (PERB held that to invoke that “unfair practice strike” doctrine, the employee organization bears a heavy burden to prove not only that the employer actually committed an unfair practice, but also that the unfair practice actually provoked the strike. Detailed proof is required of the circumstances that prompted the strike activity.) In its ruling, PERB specified only “direct” strike-related damages can be awarded. These include the cost of replacement workers and lost income as a direct result of the strike. In addition, the employer can recover strike preparation costs, but only if they were necessary “to maintain continuity of operations during the strike and proper to mitigate any reasonably foreseeable effects of the strike.” Speculative expenses, and costs that cannot be quantified, are not allowed. Finally, PERB clearly stated that that any recoverable damages will be offset by money the employer saves as a result of the strike. This case is important reading for anyone involved in labor negotiations. A copy of the PERB decision is attached for your convenience, but please note that due to the length of the decision, we have split the PERB ruling into two parts, which must be viewed separately. Simply click on California Nurses Association v. Regents of the University of California (PERB Decis. No. 2094-H), Part One and Part Two to review this important case.