The judge who ordered striking county nurses back to work this week had wide latitude to decide whether the strike was lawful, or unlawful, depending on whether he felt it posed an “imminent threat” to the public’s health and safety, legal experts said Wednesday.
The task facing Superior Court Judge William Huss would have been simpler if county officials had asked him to stop a strike by firefighters, police officers or prison guards.
Such strikes are clearly banned--in the case of firefighters, by the Legislature--in the case of prison guards and police officers, by the standard set forth in the leading California Supreme Court decision on the issue.
But the legality of the strike by county nurses was in a gray area, said Stanford University law professor William Gould, a labor law specialist, because much health care remained available despite the strike.
By contrast, Wednesday’s coordinated strike by some county flood control, sewer repair and street maintenance workers seems clearly lawful because, according to county officials, the walkout did not place the public in immediate jeopardy.
Experts said a court would probably also uphold the legality of a threatened strike by some county welfare workers--part of the so-called “Rolling Thunder” strategy of the Service Employees International Union, which represents 40,000 county workers under 21 contracts that expired a month ago.
Guiding the courts is a 1985 state Supreme Court decision that held for the first time that strikes by public employees in California were legal “unless or until it is clearly demonstrated that such a strike creates a substantial and imminent threat to the health or safety of the public.”
The decision was in part a recognition that there was sometimes little difference in impact on the public between a lawful strike in the private sector--by workers for a private utility, for example--and an unlawful strike by employees of a public utility.
In the 1985 ruling, the court upheld the legality of a strike by some Los Angeles County sanitation workers.
The nurses--who voted to return to work Wednesday but threatened to strike again Monday--were in the gray area mainly because their strike was not completely successful in shutting down health care.
The striking union represents only 37% of the county nurses, and county officials reported that only 20% of nurses failed to show up for work Wednesday. So all services at the county’s hospitals did not have to be stopped.
In addition, patients in need of some emergency services could be shuttled to private hospitals, although many people who rely on public hospitals could not afford the private care.
County officials argued in court that the nurses’ strike would cause widespread disruption of health care at the county’s six public hospitals and 47 neighborhood clinics.
“I’m not concerned about the county. I’m not concerned about the nurses. I’m concerned about sick people,” Huss said in issuing his order.
The tool Huss used to order the nurses back to work was a temporary restraining order--a form of injunction.
If the nurses resume their strike, the county could ask the judge to enforce his order through civil contempt proceedings.
Huss would have wide powers to fine the union--a flat amount, or a sum for each day it defied him. He could also jail union leaders until they ordered the nurses to return to work, said UCLA law professor Reginald Alleyne, a labor law specialist.
Huss could also fine or jail individual nurses who had been served with copies of his order, although such a move would be unlikely, experts said.
Temporary restraining orders are commonplace in public employee strikes, which, according to a University of California study, averaged about 30 per year statewide in the 1970s and early 1980s, when they were deemed illegal.
Until the 1930s, restraining orders were widely used nationally to curb private sector strikes, which were then commonly viewed by courts as conspiracies to violate employers’ rights.
In the 1930s, however, Congress denied federal courts the power to issue injunctions to stop almost all private strikes. Most states followed suit.
“The rights of public employees have long been on an entirely different track,” said Stanford’s Gould.
It is still technically a crime for federal employees to strike, although former President Ronald Reagan chose to fire striking air traffic controllers, rather than prosecute them.
In nearly 40 states, public employee strikes remain prohibited by law.