In February 2010, PERB issued a decision in California Nurses Association v. Regents of the University of California, PERB Decision No. 2094-H. The case involved competing unfair practice charges filed by CNA and the Regents over the conduct of 2005 contract negotiations. In the midst of the negotiations and before impasse, CNA called for, and then canceled, a one-day strike.

Reversing in part a proposed order by the ALJ, PERB concluded that the threatened strike was unlawful because it was not in response to an unfair labor practice by the University but rather was intended to put pressure on the University to agree to CNA's terms at the bargaining table. In addition, responding to the University's request that the hearing be reopened so that it could introduce evidence of damages it had suffered as a result of the threatened strike, PERB held that it had the authority to award make whole damages to an employer for unlawful strike activity by a union.

The legislature's response began to take shape in June 2011, as a bill on a wholly unrelated topic was amended to address what the legislature considered an attack by appointees of former Governor Arnold Schwarzenegger against the rights of public employees to bargain collectively. The final bill, SB 857, which was signed by Governor Brown on October 7, 2011, declares that PERB shall not have authority to award damages to employers for unlawful strikes. Specifically, PERB shall be without power to award as damages strike-preparation expenses, or "costs, expenses or revenue losses incurred during, or as a consequence of, an unlawful strike."

SB 857 amends each of the statutes administered by PERB -- the MMBA, Dills Act, EERA, HEERA, Trial Court Act, Court Interpreter Act, and TEERA. In addition, in each version of the bill, and in legislative analyses, the legislature affirmed that PERB's decision in the Regents case was complete departure from and in conflict with prior case law. Therefore, SB 857 states that it is "declaratory of existing law" and therefore retroactive in its effect.

Opponents of SB 857 pointed out, to no avail, that the threatened strike at issue in CNA v. Regents was found to be unlawful. Therefore, unions may now feel free to violate the law with impunity. That said, the new law may have the unintended consequence of making it easier for employers to obtain injunctive relief. Employers may now argue that damages are not just inadequate -- they are unavailable. Therefore, employers should still assemble or compile evidence of potential economic harm to use in proceedings for injunctive relief before the Board.