Wednesday, February 10, 2010

PERB Recognizes "Unfair Practice Strike" Under HEERA

California Nurses Association (2010) PERB Decision No. 2094-H (Issued on 2/02/10)

These consolidated cases involved allegations of bad faith bargaining brought by the California Nurses Association (CNA) and the University of California (University) against each other. The dispute culminated in a threatened pre-impasse, one-day strike by CNA. Because pre-impasse strikes are presumptively an unfair practice under PERB precedent, CNA justified its threatened strike by characterizing it as an “unfair practice strike,” as opposed to an economic strike. The ALJ agreed, finding that the University engaged in unfair practices which “provoked” CNA’s strike threat.

On exceptions, the Board rejected the ALJ’s proposed decision. With respect to the threatened strike, the Board, relying on EERA precedent, held for the first time that strikes are not a per se violation of HEERA. The Board also refused to find strikes at health care institutions to be per se violations of HEERA; but the Board did acknowledge the need to address threats to public health and safety on a case-by-case basis. Moreover, the Board recognized that a strike provoked by an employer’s unfair practice (i.e. an “unfair practice” strike) was permissible pre-impasse. The Board held that, “To establish that a strike is an unfair practice strike, the employee organization must prove that: (1) the employer committed an unfair practice; and (2) the employer's unfair practice provoked the strike."  Here, because the Board found that the University did not engage in bad faith bargaining, it necessarily followed that CNA’s strike threat could not be justified as an “unfair practice” strike.  Accordingly, the Board dismissed CNA’s unfair practice charge.

The remainder of the Board’s decision then addressed what damages, if any, PERB could award to the University. After an extensive discussion of court cases and its statutory authority, the Board concluded that it could order damages as part of a make-whole remedy. The Board emphasized that, “our holding does not diminish the importance of seeking injunctive relief to prevent an unlawful strike from occurring nor do we hold or imply that damages are a substitute for injunctive relief. To this end, we reaffirm the Board's holding … that damages will not be awarded unless the employer first seeks "to mitigate its losses or bring about the termination of the strike by requesting that PERB seek an injunction against it." The failure to seek injunctive relief may also be a factor in determining whether the employer sought to mitigate damages arising from a strike threat or strike preparations. The Board then remanded the case to the ALJ to take evidence on any damages suffered by the University.


1.  The major ruling in this case is the Board’s holding that it has the authority to award damages to an employer subjected to an unlawful strike (or unlawful threatened strike). The Board’s decision on this issue is well-written, especially the discussion on the differences between strikes in the public sector versus private sector. Of note is the Board’s statement that, “[F]or all practical purposes, a public employer lacks the "economic weapons" to effectively combat a pre-impasse economic strike”; which is why such strikes are presumptively unlawful under the statutes administered by PERB.

2.  However, the most interesting part of this decision for me is the Board’s recognition of an “unfair practice strike.” Admittedly, the concept of an “unfair practice” strike versus an “economic” strike has long been recognized in the private sector, and by early PERB decisions.  But the early PERB decisions never set forth a sound rationale for recognizing such strikes in the public sector and I was hoping the Board would eliminate "unfair practice" strikes as an exception to the rule against pre-impasse strikes. In my opinion, here are the reasons why:
  • Allowing an “unfair practice” strikes creates a huge exception to PERB’s rule that pre-impasse strikes are presumptively an unfair practice. Indeed, given how easy it is to allege an unfair practice, this exception has the potential to swallow the rule. This problem doesn’t exist under the NLRA which doesn’t have a presumption against the use of economic weapons prior to impasse.  Because PERB departed from the NLRA on pre-impasse strikes it should do the same for "unfair practice" strikes.
  • The very concept of an “unfair practice” strike goes against public policy which discourages people from taking the law into their own hands. In California, the Legislature has provided a remedy for unfair practices: it’s called PERB. Why in the world should a union (or an employer for that matter) be allowed to utilize its economic weapons to remedy a legal violation for which there is a remedy? I can’t think of any other law where someone who believes he or she has been wronged can go and inflict economic pain on the perpetrator and have that sanctioned by the judicial system.
  • While I do again concede that unfair practice strikes have long been recognized in the private sector, the public sector is different. Indeed, in this decision PERB extensively discussed the differences between the public and private sectors. PERB itself noted how public employers simply do not have the same weapons as private employers to respond to unions. That’s why pre-impasse strikes are presumptively an unfair practice. How then does it make sense for PERB to recognize the concept of an “unfair practice” strike? In my humble opinion all pre-impasse strikes—whether characterized as economic or unfair practice—should be presumptively an unfair practice.  If a union believes it is the subject of an unfair practice, then it should file a charge with PERB.  If it needs urgent relief, it should seek injunctive relief.  Given these legal remedies, I see no public policy reason for allowing an "unfair practice" strike.
  • Finally, it is worth noting that in this decision PERB affirmed its standard for determining provocation. Unlike the NLRB, which requires that the unfair practice be a motivating factor for the strike, PERB requires that the unfair practice be a “but for” cause of the strike. This difference in standards will hopefully at least put a partial check on “unfair practice” strikes by unions.  Nevertheless, I am hoping that the Board will re-consider this issue in the future.