Labor Relations: The Meet and Confer Process

6. J URISDICTION The question of whether PERB or the superior courts have initial jurisdiction over “essential employee” strikes that threaten public health and safety was settled by the California Supreme Court in City of San Jose v. Operating Engineers Local Union No. 3 . 339 In that case, the Court found that PERB has exclusive initial jurisdiction over a claim by a public agency that a strike by some or all of its employees is illegal. PERB also has no jurisdiction over employees designated as “management” or over peace officers as defined in Penal Code Section 830.1. 340 Where an agency seeks an injunction over a strike by management or peace officers as defined in Penal Code Section 830.1, the injunction should be filed with the Superior Court. PERB has ruled, however, that it has jurisdiction over unfair practice charges filed by employee organizations composed partially or entirely of Penal Code section 830.1 peace officers. 341 PERB also has no jurisdiction to direct a legislative body to rescind a resolution or to take any other legislative action, which would violate the separation of powers doctrine or to order an agency to invalidate a citizens’ initiative subject to a separate challenge process. 342 a. Damages An employer cannot file a civil tort action to recover damages caused by an illegal strike. 343 However, an employer can sue an employee organization for breach of a “no strike” clause under Labor Code section 1126, which provides remedies for breach of collective bargaining agreements. 344 An employer cannot revoke union recognition as a penalty for the union’s involvement in illegal strike, because revocation interferes with the employee’s right to be represented by an organization of their choice. 345 i. Salary and Benefits An employer can refuse to pay strikers for time not worked, including fringe benefits. 346 When an employee has previously authorized vacation time, personal leave, comp time-off, or floating holiday time scheduled during the time that the strike is taking place, the agency can withdraw authorization and require that the employee attend work. ii. Discipline While no discipline can be imposed against employees engaged in a legal, protected strike, an agency may decide to take disciplinary action against employees who engage in illegal concerted activity. b. Striking Employees

Unauthorized absence due to participation in an illegal strike is a terminable offense. 347 An employer may also initiate disciplinary proceedings if it suspects that employees are using sick

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 77