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    When Is A Strike Legal? And Who Gets To Decide? What's At Stake As UC Strikes Ramp Up

    By Julia Barajas,

    28 days ago
    About 48,000 students are striking for a living wage and in protest of what they say are unfair labor practices by the University of California. (Adolfo Guzman-Lopez)

    The union that represents the University of California’s academic workers launched the first in a series of strikes May 20 — a move that could deal a blow to campus operations just a few weeks ahead of finals.

    UAW 4811 members work at all 10 of the system’s campuses. Last Monday, workers at UC Santa Cruz began the first “stand up” strike. This Tuesday, workers at UCLA and UC Davis are expected to join them, and workers at other campuses stand at the ready.

    The union has filed multiple unfair labor practice charges against UC, arguing that the system violated workers’ rights when deploying police to dismantle encampments formed in protest of Israel's war effort in Gaza.

    Meanwhile, UC also filed its own unfair labor practice charge and asked the state’s Public Employment Relations Board to put an end to the strike. Allowing it to continue, UC said in a press release, “will cause the University and its students irreparable harm.” Members of the union teach, research, and grade, meaning that work will be getting done at fewer and fewer campuses. The academic year ends in mid-June.

    The system also asserts that the work stoppages are illegal, pointing to “no strike” clauses in the union contracts.

    But some labor law experts say those “no strike” clauses are not so cut-and-dried.

    When do employees have a right to strike?

    That depends on where they live and where they work, said Jay Smith, a lecturer at USC’s law school and an attorney who’s represented labor unions throughout the country for nearly four decades.

    If an employee works in the private sector, he said, their right to strike “is protected and governed by federal law exclusively, and any state attempts to govern that are preempted.”

    In contrast, if someone works in the public sector — like the academic workers at the University of California — “all labor relations, including the right to strike, are governed by state law, and sometimes by local law,” Smith added.

    “Some states prohibit all public sector employees from striking,” he said. In those states, public employees risk getting fined, fired, or jailed for walking off the job. In the past 10 years, for instance, bus drivers in Mississippi and teachers in West Virginia took these risks to demand higher wages.

    What are 'no strike' clauses?

    “No strike” clauses are worked into contracts to maintain uninterrupted operations. They also compel unions and employers to settle disputes through arbitration or mediation.

    In the private sector, almost all contracts between unions and their employers have “no strike” clauses during the length of the contract, Smith said.

    Typically, unions go on strike “only when the contract has expired or [when it’s] been terminated, and they're usually striking in favor of getting a better contract from the employer. But they’re doing so at a time when there is no contract in effect,” he added.

    How literal is a 'no strike' clause?

    There is some wiggle room. In 1956, the U.S. Supreme Court decided Mastro Plastics Corp. v. NLRB . From the court’s opinion:

    “Petitioners argue that the words ‘any strike’ leave no room for interpretation and necessarily include all strikes, even those against unlawful practices destructive of the foundation on which collective bargaining must rest. We disagree. We believe that the contract, taken as a whole, deals solely with the economic relationship between the employers and their employees."

    Basically, Smith said, the court “decided that, for employees in the private sector, if their strike is significantly motivated by an employer's commission of serious unfair labor practices, the ‘no strike’ clause doesn't apply — even if there is a contract in effect.”

    What do protests over Gaza have to do with working conditions?

    The union says employees are demanding workplace-related changes, including the right to opt out of military-funded research.

    The union therefore takes issue with the arrest, suspension, and discipline of members who participated in demonstrations at UCLA, UC San Diego, and UC Irvine. The union alleges that UC retaliated against employees for engaging in actions related to working conditions.

    Who determines whether the UC strikes are legal?

    The California Public Employment Relations Board (PERB) enforces collective bargaining laws for the state’s public sector employees. And “California laws and [PERB] typically borrow extensively from both the statute and the legal precedence that exist in the private sector under the federal law,” Smith said — for example, that Supreme Court case.

    After reviewing the UC’s press statement, Smith said the system is “quoting the literal terms of the ‘no strike’ clause. And if you just look at the no strike clause, it certainly looks, on the face of it, like the University of California is correct and the UAW is wrong — but that's only if you don't understand this additional issue.”

    What's been decided so far?

    J. Felix De La Torre, general counsel for PERB, said the agency has offered mediation to UC and the union. On May 23, PERB announced it would not pursue the injunction to stop the strikes, saying UC "has not established that injunctive relief is 'just and proper’” under the standard set by state law.

    However, the agency said it will leave UC's request open, "in the event it learns of evidence or facts" that support the system's request.

    What happens to union members if the strikes are illegal?

    “If PERB seeks an injunction and a judge issues the injunction,” Smith said, union members would be obligated to comply. If they defied it, “a whole cascade of bad things could happen to them,” including fines and being “put in handcuffs for contempt of court.”

    In an email, De La Torre also told LAist that PERB hasn’t reached a decision on UAW 4811’s unfair labor practice charges.

    “PERB must provide UC with an opportunity to file a position statement,” he said. UC must respond to these charges by May 28. Then, a regional attorney will issue a decision.

    De La Torre also noted that “PERB has not determined that UAW’s strike is unlawful.” That’s still being determined, and the process could take months.

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