The Pending Strike

From 2022.

Blog readers will likely know that UAW 4811 - which represents a variety of UC student-workers and researchers - has called what it terms an "unfair labor practice strike" starting Monday. The strike revolves around recent campus events concerning the encampments. Unlike the big 2022 strike - see the image - this one apparently will be on a rotating basis starting at Santa Cruz. In federal law - which in many ways served as a model for the state statute covering UC and CSU - a ULP strike is differentiated from an "economic strike," the latter being a strike over wages, hours, and working conditions, typically when a new contract is being negotiated and no existing contract is in place. A ULP strike - because it is seen as defending legal rights under the relevant statute - gives individual workers protection from being permanently replaced. 

But as is often the case in law, there is a catch. The ultimate judge as to whether a given strike is a ULP strike or something else rests with the California Public Employment Relations Board (PERB). So, whether the ULP strike protections apply is typically determined after the strike has begun. Adjudication of such matters can take time. Thus, the union and its members in a proclaimed ULP strike are taking a risk. PERB might not agree.

If PERB ruled that the rotating work stoppage was not a ULP strike, the union would then likely face liability for violating the no-strike clause in its current contracts with UC.* Such clauses typically specify that disagreements over the meaning of the contract during the duration of the contract are to be settled using a specified grievance-and-arbitration process.** No-strike clauses are generally seen as important to maintenance of good labor relations from the management viewpoint. 

We usually think of a grievance as a situation in which a worker has been subject to discipline (including perhaps termination), and complains through a specified process. In union situations, the union takes the case on behalf of the worker through a series of steps with management officials. If the matter cannot be resolved, it goes to a neutral arbitrator for a binding decision. The arbitrator holds a hearing somewhat similar to a court, but with less formality. The union's case in such situations rests on a clause in the contract which will usually require that discipline will only be undertaken "for cause." Essentially, such clauses are interpreted by arbitrators as requiring due process. Arbitrators over many years have developed guidelines concerning what that means in the context of a workplace. But the important point is that what the union is alleging in a typical individual grievance is that the contract is being violated by improper discipline, i.e., the discipline was not for cause.

Contract violations are not confined, however, to individual discipline situations and can refer to any contract violation.

There is also a concept in labor law regarding the "scope of bargaining." Typically, anything that falls under "wages, hours, and working conditions" is within the scope of bargaining. Unions can press for such matters to the point of impasse and can strike over them (when there is no bar due to a no-strike clause). Issues that fall under the category of wages, hours, and working conditions are deemed mandatory items of bargaining and both sides must negotiate in good faith about them. Unions can "discuss" other non-mandatory matters with management, but not to the point of impasse and strike. Again, it is left to PERB to determine what is mandatory and what is not, and what good faith means - and it can take time for the legal process to play out.

If there is a bottom line to this quick course in labor relations, it is that labor law and practice involves many ambiguities such as the meaning of "working conditions," discipline "for cause," and "good faith," that adjudicating such matters can take time, and that "trust" in a labor-management relationship can be as important as the legal niceties. There is more to be said, but enough for now.

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*At Harvard, the local union is testing this issue by filing a complaint with the NLRB (the relevant authority for the private sector) rather than striking. It thus will get a ruling without the risks entailed in testing the issue by striking. See https://www.thecrimson.com/article/2024/5/17/hgsu-encampment-unfair-labor-practices/. UAW 4811 at UC filed a ULP charge with PERB on May 10, prior to the planned strike:

https://drive.google.com/file/d/1N1Luo2YQrWjD9qrN6B1aR1rIR2imRzjt/view. 

UC filed a countercharge with PERB on May 17: https://www.universityofcalifornia.edu/press-room/uc-files-unfair-labor-practice-charge-against-uaw-illegal-strike.

**UC published a copy of the no-strike clause from one of its UAW contracts at:

https://ucnet.universityofcalifornia.edu/wp-content/uploads/labor/bargaining-units/ra/docs/ra_2019-2022_15_no-strikes.pdf.