An emphatic ruling from a state public employment board has eviscerated San Francisco’s half-century-old City Charter sections forbidding public employees from striking — and enabling the city to fire workers who do.
The California Public Employment Relations Board (PERB) on July 24 returned a resounding decision against the city and in favor of the Service Employees International Union 1021 and International Federation of Professional & Technical Engineers Local 21. This ruling affirms — and expands — a decision handed down last year by an administrative law judge, and appealed to the PERB panel.
That state panel on Monday found that the charter provisions enacted following chaotic 1970s-era public employee walkouts, and subsequently modified by voters over the course of the ensuing decades, to be wholly incompatible with California law. While the state panel does not have the power to rescind portions of the San Francisco City Charter, it can — and, now has — declared significant swaths to be “void and unenforceable.”
As such, the ramifications of this ruling could be extremely significant: Mission Local wrote this week of the looming political bloodbath coming in 2024, as the city faces vastly diminished revenues and Mayor London Breed ostensibly pushes an austerity budget. This will, notably, come during the closing stanza of her re-election campaign — while, simultaneously, most public-employee contracts will have expired and require re-negotiation.
This week’s ruling, which further enables disgruntled San Francisco public employees to strike, would only render an explosive situation all the more volatile.
“This needs to be taken seriously. Workers struck in Oakland in 2017,” notes longtime Bay Area political consultant Jim Ross. “There is now a chance there could be a strike that shuts down San Francisco. And the thing about the city of Oakland strike is that Oakland is just a city. San Francisco is a city and county. If there’s a strike, it could be so far-reaching.”
It could also have far-reaching effects on the mayor’s re-election bid.
“Incumbents, in general, want to project that they’re competent and caring,” Ross continues. “When Joe Alioto ran for re-election, I love his slogan: ‘It’s a tough job and Alioto’s doing it!’”
“The city shutting down is the opposite of doing the job.”
The City Attorney’s office states that it is reviewing the decision and considering its next steps. Should it wish, Monday’s ruling could be appealed to the California Courts of Appeal.
“The unlawful hurdles the city has created to tie our hands do not exist anymore,” said David Canham, the executive director of SEIU 1021. “We’ve gone to PERB on several pieces of the charter. This was the last remaining unlawful piece. It is a huge deal.”
Canham noted that his union has struck some 30 times in the past decade throughout Northern California, but never in San Francisco, due to the provisions now eliminated by this ruling.
“We have always taken the position, even before this decision, that [the city’s anti-strike provisions] were unlawful. This confirms we were right,” he said. “Going into bargaining, it’ll be clear to our members throughout the city that they have a right, if they so choose, to strike.”
Monday’s outright voiding of the anti-strike provisions within San Francisco’s City Charter is the latest and most sweeping in a series of state-level decisions chipping away at the city’s longstanding blanket ban on public-sector strikes. In 2017, PERB ruled that the city could not prevent its workers from engaging in “sympathy strikes.” That same year, the Public Employment Relations Board ruled that “An employer may not impose terms that waive or forfeit the statutory rights of employees or their organizations to engage in concerted activity, including the right to strike. Public employees have a qualified right to strike. … there can be no unilateral forfeiture of the right to strike.”
In 2020, PERB largely nullified charter-mandated deadlines that unions long complained made the notion of even considering a strike to be untenable.
As ruling after ruling touched on the central question of San Francisco’s broad no-strike policy without opting to address it head on, the state employment body clearly signaled where it was going: It “reiterated that it was leaving for another day whether the charter’s strike prohibition was unlawful … and that the City acts at its peril in maintaining that position.”
Monday’s outcome, a long time coming, was both predicted, and predictable.
“I think the people who run this city are really very smart. Do they honestly believe the charter language will stand up when it’s challenged?” then-San Francisco Labor Council executive director Rudy Gonzalez asked Mission Local in 2019. “They should work with us and figure out how to amend the charter.”
This did not come to pass, and now the charter’s anti-strike language has been declared “void and unenforceable” by the state.
Monday’s ruling affirmed every tenet of the 2022 decision — and even took things a bit further. While the administrative law judge’s decision last year did not void a city declaration of policy that “strikes by city employees are not in the public interest,” the panel did nix this language, finding it “unlawful.”
Despite the indications through the years from the state that San Francisco’s anti-strike provisions were unlawful, the city continued to mandate that employees sign forms stating they do not have the right to strike, and can be terminated if they do. This was a particularly irksome matter for SEIU leader Canham.
Workers “would tell us, ‘We signed the damn form;’ they were worried, no matter what we said to them,” he said. “It is a huge, huge sea change in terms of members knowing they have all their rights under the law.”
San Francisco has, since the 1990s, mandated binding arbitration with its unions in lieu of allowing strikes. This process was not wholly scrapped by Monday’s ruling. But the city’s position that binding arbitration is, in and of itself, an ample substitute for the right to strike was roundly rejected: “The City’s total ban improperly allows one of two negotiating parties to unilaterally impose interest arbitration while depriving its counterpart of the choice whether to strike or engage in interest arbitration.”
It is unclear if this case will find its way to the Court of Appeal. But, if it does so, union attorneys say they could not have hoped for a more favorable decision than the one PERB delivered them on Monday.
“PERB explicitly stated again that public sector employees, including City employees, have the right to strike, and the limitations on this right are few and carefully defined,” said Katie McDonagh, an attorney at Weinberg, Roger & Rosenfeld and counsel for SEIU Local 1021 in this case.
“PERB ruled in this case that the complete strike ban in the City Charter totally conflicts with established precedent recognizing the statutory right to strike.”