Labor Relations: The Meet and Confer Process

Sympathy Strike: A strike in sympathy with other striking employees. The legality of such a strike depends on whether a “no strike” clause is in effect.

Unfair Practice Strike: A strike to protest employer unfair practices. If precipitated by employer unfair labor practices, such a strike is generally permitted, absent any substantial and imminent threat to health and public safety.

Wildcat Strike: A strike by employees that has not been approved by the exclusive collective bargaining agent or the union.

While many of the above-listed types of strikes are illegal, the alleged illegality of a strike is not a valid defense to a public employer’s refusal to meet and confer. 329

2. Effect of Expiration of Collective Bargaining Agreement The good faith obligation requires that the employer maintain the status quo as to wages, benefits and working conditions during negotiations on a new agreement, after expiration of the predecessor agreement. The status quo includes what was in the expired contract. 330 After the expiration of the contract, the employer may not make a change in terms and conditions of employment, but an arbitration provision will not be extended to require arbitration of post- expiration disputes, unless drafted to require express extension of that provision. 331

Many collective bargaining agreements will include a “no strike” clause. Generally, a “no strike” clause will expire with the contract. Agencies cannot impose a “no strike” clause.

3. Injunctive Relief Injunctive relief may be appropriate where a work stoppage is in progress. 332 However, strike preparation (including strike authorization votes or urging members to picket) or threatened work stoppages before the exhaustion of impasse resolution procedures is likely insufficient for injunctive relief. 333 Where illegal strike activity (i.e., refusal by employees to perform essential services which substantially threaten health or safety) is imminent, an agency should seek an injunction to prevent employees from participating in such a strike. 334 Only strikes that are illegal can be enjoined. 335 Also, when a charging party files an unfair practice charge, it can include a request for injunctive relief. Injunctive relief (i.e., an injunction) is statutorily defined as “a writ or order requiring a person to refrain from a particular act.” 336 Additionally, injunctive relief can compel the performance of an affirmative act. 337 For instance, PERB has sought injunctive relief to order the reinstatement of an employee/union leader, who was placed on administrative leave during a pending union organizing election and ordered to not speak to other employees or come to the workplace. 338 Typically, an injunction is sought to restrain certain conduct pending the outcome of an unfair practice case, such as bad faith bargaining, unlawful unilateral changes, and illegal strikes.

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 76