The second fatal mistake of the UC strike ban ✦ OnLabor

This is part two of a two-part series. Part one can be found here.

This post analyzes a second serious error in the University of California (UC)’s recent temporary restraining order (TRO) targeting UAW Local 4811’s unfair labor practice (ULP) strike. The first (discussed previously) concerned the way the court usurped the Public Employment Relations Board’s (PERB) exclusive jurisdiction over ULP decisions; this issue was particularly acute because UC had already petitioned the PERB for a temporary restraining order and been twice turned down. Worse, the court’s rush to enjoin the strike also disregarded a separate statute specifically designed to curb the age-old problem of judicial suppression of worker activism at the behest of the employer, what California law elsewhere describes as “the evils that frequently arise when courts interfere with the normal processes of dispute resolution between employers and recognized worker organizations.”

In 2000, California enacted the Little Norris-LaGuardia Act, which was modeled on the federal law of the same name. The new law amended an earlier state statute. It adopted the earlier statute’s definition of a “labor dispute” but modified it in a way that made it applicable to disputes over collective bargaining agreements in the public sector, unlike the earlier statute.

Borrowing from federal law, California’s Anti-Injunction Act created new procedural hurdles for court-issued injunctions, including preliminary injunctions, in employment disputes. These requirements include specific judicial findings of fact and law that were not made here, as well as several types of exhaustion requirements that UC would have had difficulty meeting precisely because it circumvented the PERB process. In fact, UC’s brief did not even acknowledge the existence of the Little Norris-LaGuardia Act, let alone that it did not apply or could have been met.

The applicability of the Anti-Injunction Act was apparently discussed at the TRO hearing after the UAW raised it in its brief. A full transcript is not available and the court has not issued a written opinion, but media reports suggest that the judge may have skirted the law through a gross legal error. According to these reports, the court expressed doubts about whether the dispute could even be classified as a “labor dispute.”

The notion that an attempt to end a union strike on the grounds that it violates a collective bargaining agreement entered into under California labor law is not a labor dispute is absurd. The most plausible explanation is that the Court confused the relevant term “labor dispute” for purposes of the Anti-Injunction Act with a separate issue concerning the validity of the UAW’s allegations that the UC negotiated ULPs prior to the strike.

On the ULP front, the UC argued that the previous concerted activity of UAW members in connection with the Palestine Solidarity Encampments had been unprotected and that the UC could therefore suppress it without committing ULP. The activity was supposedly unprotected because it was “political” in nature and had nothing to do with workplace matters.

Be that as it may, the question under the Anti-Injunction Act was different: Was there “any disagreement over the terms and conditions of employment” after the UAW went on strike over the alleged ULPs and the UC invoked the CBA’s no-strike clause to quash the strike? The answer is a resounding yes, because the contractual obligation not to strike is an essential “condition” of the employment relationship. This is also evident in the UC’s explicit threats to take disciplinary action against UAW members who participate in what it considers to be a strike prohibited by the CBA. In fact, the U.S. Supreme Court has ruled, based on the essentially identical definitions of the Norris-LaGuardia Act, that an employer’s invocation of a no-strike clause, even in a purely “political” strike, is a “labor dispute” subject to the Act.

This verdict was passed in the early 1980s Soviet boycott Cases, touchstones for the “political strike” doctrine, in which the court applied the law to prevent an injunction against strikes. Bulk terminals in Jacksonville reaffirmed the limits of the so-called Boys’ markets interim injunctions. Boys’ markets had created a controversial, non-textual exception to the federal anti-injunction statute of 1932 based on the principles of the later-enacted National Labor Relations Act (NLRA) and Labor-Management Relations Act (LMRA) § 301. This exception allows a federal court exercising Section 301 jurisdiction to enjoin a strike over a contract dispute in order to compel resolution of the dispute in arbitration required by the CBA. However, later in Buffalo Forgethe Court refused to apply this exception to a case involving a sympathy strike in which the union was striking for reasons other than an alleged breach of contract by the employer. Bulk terminals in Jacksonville This principle was then applied to a “political” strike, even if some of the union’s grievances had been converted into contractual provisions.

These cases thus undermine what appears to be the UC’s best argument: that even in a bona fide Industrial action, a Boys’ markets analysis allows a state court to circumvent the Anti-Injunction Act to enforce a CBA no-strike clause, here under California Labor Code § 1126, the rough analogue to LMRA Section 301 discussed in the previous post. Oddly, the UC has not actually made this argument, and the analogy is imperfect because California’s Little Norris-LaGuardia Act was enacted after Section 1126 of 1941. In addition, the UC has not sought an order requiring arbitration of the UAW’s underlying complaints, a prerequisite for Boys’ markets Ban on strikes.

But even if these wrinkles could be ironed out, the fundamental problem is that this case looks more like Buffalo Forge And Bulk terminals in Jacksonville as Boys’ markets. The dispute that sparked the strike concerns alleged ULPs, not contract violations, and PERB has determined that these ULP allegations merit a lawsuit. Surprisingly, there is little precedent addressing the question of whether the Buffalo Forge reasoning applies to a ULP strike, but the NLRA case, which gets most directly to the point, concludes that it does not.. Only last year Spreckels Sugar Co. v. UFCW Local 135 argued that the merits of the ULP “cannot be decided by the court” and therefore “whether the work stoppage violates the strike ban provision of the collective agreement, Boys’ markets Exception does not apply.” This reasoning is especially valid here because California law further protects PERB’s ULP jurisdiction.

Moreover, the UC does not even portray this as a secret economic strike under the guise of ULP charges. Instead, the UC’s theory is that the UAW is waging a “political” strike over issues outside the collective bargaining agreement: “The individuals involved in the protest activity on campus were not protesting…the terms of their employment. As far as the university knew, the protesters at the camp were students advocating for political change in the Middle East.” This argument could be fatal to the UAW’s ULP strike theory, but that would simply put the UC out of business. Mastro Plastics Frying pan and into the Bulk terminals in Jacksonville Fire. Either way, no Boys’ markets An interim injunction is possible.

All in all, this episode illustrates precisely the dangers that administrative jurisdiction over ULPs and limits on work bans are designed to prevent. These limits are not enforceable by themselves, especially when the timing of a strike is sensitive (here: the crucial stage of final grading), so even a later lifting of an egregiously wrong ban cannot undo its damage. This suggests that even tighter limits on court intervention are needed, and that there are mechanisms in place to force employers like the UC to pay a high price if they do get a court to go against the rules.