Labor Relations: The Meet and Confer Process

leave while not truly ill. 348 And an agency is entitled to impose discipline on employees who take possession of the agency’s premises during a strike. 349 However, an employer cannot use emergency authority to do away with due process rules, because doing so will not alleviate the emergency. 350 Agencies must be careful to follow Skelly and other due process procedures when disciplining employees for participation in illegal strikes. If an employee has taken sick leave during an unprotected work stoppage, the employer can use evidence that the employee participated in picketing, or other evidence of abuse, to support discipline of the employee for abuse of sick leave. Furthermore, unless an agency policy prohibits it, the employer can require that the employee submit sick leave certification from a doctor before returning to the workplace. However, agencies must be careful to treat all employees who commit similar offenses equally to avoid claims for retaliation based on union activity. In the private sector, the distinction between economic strikes and unfair labor strikes is crucial in determining reinstatement rights. 351 Unfair labor practice strikers have an absolute right to reinstatement whereas economic strikers may be permanently replaced if the employer had previously filled the position. 352 Until there is further clarification of the employer’s ability to replace striking public employees, this distinction may apply to the private sector only. California public employee strike rights have not been further materially defined since 1985, possibly because there are so few strikes in the public sector. Issues that may arise in the future include, for example, will private sector law prohibiting partial or intermittent strikes be held to apply? And will it be determined that public employers have the right to temporarily or permanently replace economic strikers as is true under private sector labor laws? c. Strike Contingency Planning The legal sanctioning of strikes further emphasizes the importance that agencies have available a strike contingency plan that is maintained on a current basis at all times. Whether employees engage in a legal or illegal strike, LCW strongly recommends that an agency prepare in advance with a “strike plan” that can be quickly implemented. The strike plan should address issues such as whether the agency will continue to operate, what arrangements must be made to deal with essential public services, what security is needed to deal with picketers impeding operations, security against potential sabotage, and other issues. i. Maintaining Service During a Strike In order to maintain service during a strike, an employer may hire substitute workers. An employer has a right to take prudent actions which do not violate the law. Such legal and prudent measures may include hiring substitutes to replace strikers and suspending the employment policy that interferes with such hiring. 353 ii. Public Relations An agency with striking employees should have a strong public relations campaign, and should consider hiring a public relations firm to handle communication with the press and the public.

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 78