Public Sector Case Notes

• Jurisdiction: California,United States
• Author: Kerianne Steele
• Citation: Vol. 37 No. 6
• Publication year: 2023

PUBLIC SECTOR CASE NOTES

AUTHORS^*

Kerianne Steele

Katharine McDonagh

PERB REAFFIRMS PUBLIC SECTOR EMPLOYEES' RIGHT TO STRIKE

City and County of San Francisco, PERB Decision No. 2867-M (2023); judicial appeal pending

On July 24, 2023, the Public Employment Relations Board (PERB) issued its decision in City and County of San Francisco,¹ regarding three consolidated cases brought by the Service Employees International Union, Local 1021 and the International Federation of Professional & Technical Engineers, Local 2. The cases challenged two San Francisco City Charter provisions that prohibit city employees from striking, mandate termination of employees who have engaged in strike activity, and strip such employees of accrued seniority if they are rehired. This decision is the sixth in a similar line of cases related to San Francisco's charter provisions.

Here, PERB reiterated that "strikes by public employees are statutorily protected, except as limited by other provisions of the MMBA [Meyers-Milias-Brown Act] or other public sector labor relations statutes and controlling precedent." It also underscored that: "The limitations on California public sector employees' right to strike are few and carefully defined." As previously explained by the California Supreme Court: "Strikes by public employees are not unlawful at common law unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public."²

Under the MMBA,³ a local agency may adopt reasonable rules and regulations pertaining to resolving collective bargaining disputes. However, for such rules to be lawful, they may not undercut or frustrate the MMBA's policies and purposes. Moreover, as PERB previously determined, the "home rule" doctrine "does not alter the fact that a city's charter must be consistent with the MMBA." In addition, PERB found the right to strike is not subject to regulation by charter cities and counties under the home rule doctrine.

In this case, PERB determined that the entirety of city charter section A8.346 is invalid because it totally conflicts with established precedent recognizing the statutory right to strike. Also, contrary to the city's assertions, the quid pro quo for interest arbitration is that the city can decline to resolve negotiations through interest arbitration after a union has engaged in an economic strike.

Moreover, PERB found that the Declaration of Policy in charter section A8.409—stating that strikes by city employees are not in the public interest and engaging in a strike equals automatic termination—is void and unenforceable and that distributing and requiring employees to sign a form acknowledging these provisions is unlawful and constitutes interference with protected rights. The city charter's ban on unfair labor practices and sympathy strikes was previously deemed void and...