The UC Student-Workers Union (UAW 2865) has a clear-cut right to sympathy strike under California law. All graduate student instructors, readers, and undergraduate tutors at UC Berkeley and on all UC campuses have a right to do no work on November 20, and are not obligated to inform supervisors of their intentions for the day. In fact, student workers are most protected if they do not inform supervisors of their intentions.
The most relevant case in this area is Oxnard Harbor District v. SEIU Local 998:
Oxnard Harbor District v. SEIU Local 998, PERB Decision 1580-M (2004), at pp. 6-7.
“The California Supreme Court has recognized that there is no common law prohibition on strikes by California public sector employees and their unions. (County Sanitation Dist. NO.2 v. Los Angeles County Employees’ Assn. (1985) 38 Cal.3d 564 (214 Ca1.Rpt. 424).)”
Under Oxnard and other relevant law, a sympathy strike is lawful unless it is specifically prohibited by a valid, effective (i.e., not expired) no-strike clause. Here, since the applicable collective bargaining agreement expired on November 5, 2013, UC cannot possibly show that this sympathy strike is unlawful.
As the University is well aware, PERB held in a 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),
In his email to Department Chairs last week, Berkeley Vice Chancellor George Breslauer tried to suggest that, since the UC Student-Workers Union is still engaged in contract negotiations with UC management and has not yet reached “Impasse”, student workers don’t have a right to engage in a sympathy strike. This is a legally baseless claim.
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 the Higher Education Employment Relations Act (HEERA) and other California public employee statutes solely 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).
Furthermore, if any supervisors discourage your or your classmates from striking, including by erroneously informing you that you don’t have a right to strike, this would likely constitute an unlawful attempt to interfere with your statutorily protected right to engage in a sympathy strike. Please contact a union steward if you are being discouraged from striking by a supervisor or other representative of the University.
The NLRB has repeatedly held that if communications to employees and/or work rules would reasonably tend to chill employees in their exercise of section 7 rights, whether they explicitly do so or not, they are unlawful [see TT& W Farm Products Inc and Toney Williams, 358 NLRB #125 (2012); Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)].
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 Teachers Local 1986 v. Novato Unified School District, PERB Decision 210, (1982); University Professional and Technical Employees (UPTE) Local 9119 v. Regents of the University of California, PERB Decision 1188-H (1997)]
Therefore, not only is Vice Chancellor Breslauer’s email based on faulty and groundless legal assertions, it also can be read as encouraging faculty supervisors to interfere unlawfully in the exercise of our rights to take collective workplace action. It is up to us to determine whether we will exercise our right to stand in solidarity with AFSCME workers, who are engaging in an Unfair Labor Practices strike to challenge the intimidation they faced last spring. If we make it so, the strike has the potential to be one of the largest in the history of the UC.