and stating that proper medical verification was needed to be paid, and without it ASE
strikers absence from work would be “unapproved.” (
attachment E) 9. By these actions, the University of California has deprived Academic Student Employees of their rights under HEERA Section 3565, and violated Section 3571 (a) by interfering with, restraining, and coercing employees because of their exercise their right to engage in a lawful sympathy strike.
11. In 1985, the California Supreme Court recognized that a strike by public employees is lawful
under the common law unless the strike “creates a substantial and imminent threat to the health or safety of the public.” [
Los Angeles County Sanitation District #2 v. Los Angeles County Employees' Assn, 38 Cal.3d 564, 586 (1985)]. 12.
PERB has held that “HEERA does not prohibit strikes by employees of higher education employees.” It added that “whether a strike constitutes an unfair practice
is to be determined on the
facts of the particular case.” [
California Nurses Association v. Regents of the University of California, PERB Decision 2094-H (2010), 30-31]. 13. As the University is well aware, PERB also held in a prior case involving the University and the
Nurses Association that “engaging in a sympathy strike constitutes an unfair practice only if prohibited by the applicable CBA” (Collective Bargaining Agreement) [
Regents of the University of California v. California Nurses Association, PERB Decision 1638-H (2004), 4. See also, Oxnard Harbor District v. SEIU Local 998, PERB Decision 1580-M (2004), 6-7]. 14. The applicable CBA in this case between the Union and the University terminated November 5, 2013, fifteen days before the one-day sympathy strike on November 20, 2013. Thus, there was no prohibition on sympathy strikes from the Memorandum of Understanding. 15.
PERB's decisions regarding “pre
Impasse” strikes are inapplicable here. PERB's decisions
declaring strikes of public employees illegal prior to the exhaustion of statutory Impasse deal solely with those strikes in which the issue involves a union's effort to pressure or leverage an employer to
resolve negotiations. Indeed, each case explicitly refers to the necessity of “concluding Impasse” and/or participating in “good faith” in negotiations and/or the impasse proceedings. Since “Impasse”
is a procedure that is required and applicable to HEERA and other California public employee statutes
when resolving and concluding negotiations, the requirement to conclude Impasse procedings before a Union may strike is irrelevant to whether a union can legally engage in a lawful sympathy strike, which, of course, has no procedure for Impasse, mediation, fact-finding or post-fact-finding negotiations.(see for example: Sacramento City Unifed School District (1987) PERB Order No. IR-49; Westminster School District (1982) PERB Decision No. 277; Fresno Unifed School District (1982) PERB Decision No. 208; Fremont Unifed School District (1980) PERB Decision No. 136, California Nurses Association v. Regents of the University of California, PERB Decision 2094-H, (2010). 16. PERB has held that unlawful intent need not be proven in interference cases to find that a public employer violated an employees' right to be free from interference, restraint, and coercion when exercising their rights.
(Omnitrans PERB Decision No. 2030-M (2009);
Santee Teachers Association v. Santee Elementary School District, PERB Decision 1822 (2006) @10-11; Novato Federation of