Public Employees Right To Strike Clarified by California Supreme Court

When, if ever, can public employees strike in California?  The California Supreme Court has clarified this important issue in the case of City of San Jose v. Operating Engineers Local Union No. 3

In a nutshell, the court confirmed yet again that public employees have the right to strike.  However, the court also noted that there is a countervailing public interest that may outweigh that right in cases where the public welfare is at issue. Therefore, while state law “allows public employees to go on strike to enforce their collective bargaining demands” they cannot do so if the employees “perform jobs that are essential to public welfare.”

The test is whether the strike “creates a substantial and imminent threat to the health or safety fo the public.” Whether a given group of employees perform a job that is so essential as to preclude striking “is a complex and fact-intensive matter, and one on which public employee organizations and public entities may disagree.”

The classic cases involve police and fire department personnel.  Generally, they can’t go on strike because such a move would create a serious threat to public safety.  Tougher cases involve nurses at public hospitals and teachers who provide services to school children.

In the San Jose case, the crucial issue was one of jurisdiction.  If there is a threatened public employee strike, can the employing agency proceed to court to get an immediate injunction, or must the employer first pursue remedies before the Public Employment Relations Board (PERB).  The court held that PERB has primary jurisdiction to determine if a given strike is an unfair labor practice.  This rule had been announced years ago in the San Diego Teachers case (24 Cal.4th 1 (1979)) but this case applied it across the board to unions governed by the Meyers-Milias-Brown Act (MMBA).

The only way for a public employer to bypass PERB’s primary jurisdiction is to prove that the administrative remedies would be inadequate (for example, because they are too slow to be effective).

A copy of the court’s opinion is attached for your convenience.

Our firm regularly advises employers and employees, as well as unions, about employment-related issues.  Feel free to contact our office if you need assistance in this area.

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