(Bloomberg Law) -- A simmering legal battle between the University of California system and its unionized graduate student workers is poised to heat up as thousands of students walk off the job and both sides dig in their heels on claims the other is breaking the law.

Around 2,000 student workers at UC Santa Cruz stopped work May 20 in the first of a series of compounding strikes, according to United Auto Workers Local 4811, which represents some 48,000 graduate students across the university system.

The move follows a vote last week in which 79% of participating members voted to authorize union leadership to call the strike over UC’s response to pro-Palestinian protests on campus. Those actions amount to unfair labor practices in violation of state labor law, the union says.

But the university’s response indicates a readiness to litigate the legality of the strike itself: the school has filed its own unfair practice charges with the California Public Employment Relations Board, accusing the union of violating the no-strike clause of its contract with the UC system.

UC also asked PERB for an injunction blocking the strike.

According to labor observers, the legitimacy of the strike will come down to whether UC broke state labor law by calling in police to break up pro-Palestinian encampments on several campuses and whether the university made material changes to workplace rules without bargaining. Unions are legally permitted to go on strike in response to employers’ unfair labor practices even if the parties have a no-strike clause in an existing collective bargaining agreement.

The fight comes amid a wider push by unions representing academic workers to pressure universities across the country to unwind investments in companies with ties to the Israeli government and hold their institutions accountable for how they’ve handled protests over the Israel-Hamas war at more than 100 campuses.

Unions at Brown University, the University of Southern California, and Harvard University have filed unfair labor practice charges with the National Labor Relations Board, which oversees labor issues in the private sector.

The cases test the boundaries of California and federal labor laws, which both prohibit retaliation against employees for taking collective action connected to their working conditions and protect strikes that are in response to an employer’s unlawful actions.

Workplace Connection

In its unfair practice charge, Local 4811 said it was standing in solidarity with the encampments and “demanding numerous workplace-related changes.”

UC unlawfully cracked down on these concerted activities and unilaterally changed workplace policies, such as effectively prohibiting pro-Palestinian speech on campus, canceling classes, and delaying midterm exams, the union said.

“We are hoping as 4811 that the UC will engage meaningfully with the demands of this broader movement as opposed to continuing to violently and orally repress our youth and workers,” said Jess Fournier, a representative for UAW 4811 at UC Santa Cruz.

Joseph Paller, an attorney with Gilbert & Sackman in California who represents unions, said there appears to be “real linkage” between the university’s response to the protests and the workers’ job terms.

“I think the union is onto something here,” he said. “The universities are under an obligation to bargain either before the changes in policy or directly after and it seems like they failed that duty. These changes reached beyond the protests and impacted every worker.”

In its filing, UC said UAW’s strike justification “lacks support in the applicable facts and law.”

“In today’s climate, if UAW (and other unions) can disregard no-strike clauses, the university—and every other public agency in California—would face constant strikes advancing political and/or social viewpoints,” the university said.

Mark Lerner, a partner at Kasowitz Benson Torres LLP in New York and co-chair of the firm’s Employment Practices and Litigation group, called the strike illegal.

“This is not a permitted basis for a strike,” he said. “It’s purely political and violates the CBA. The university’s reliance on police assistance to remove an encampment does not strike me as discriminatory.”

William Gould, former chairman of the National Labor Relations Board and professor emeritus at Stanford University, said the outcome may boil down to the facts.

The US Supreme Court’s decision in Mastro Plastics v. National Labor Relations Board says the National Labor Relations Act protects strikes when an employer commits certain ULPs.

It will be up to PERB to decide if UC’s changes to campus policies were severe enough to warrant the strike, Gould said.

“A refusal to bargain charge frequently gives rise to unfair labor practice strikes,” he said. “The university is going to argue these are minimal changes but I think that’s difficult to evaluate.”

Legal Risks

In a statement released after the graduate students authorized the union to call a strike, UC said it would pursue “corrective action” against workers participating in the walkout.

The university’s contract with Local 4811 states that any worker who withholds labor in violation of the no-strike clause could face discipline “up to and including termination of employment.”

But Paller said the university could find itself in further legal trouble by firing the strikers.

“If this is a ULP strike, they cannot permanently replace the workers, period,” he said. “If they’re replaced for the duration of the strike, they must be offered their jobs back.”

The union in turn could be held liable for damages that occurred during the strike if their ULPs don’t hold up before PERB, Lerner said.

“When a strike is illegal, the unions can lose their protections, and litigation damages can reach as far as the assets of the union,” he said.

Lerner, whose firm has filed several lawsuits against US universities alleging the schools are violating the civil rights of Jewish students, called the protests “outrageous.”

“They are laced with invidious antisemitic inferences and strong action by the university and universities across the country is not only advisable, but will reduce the amount of disruption to the campuses,” he said.

Added Pressure

Rebecca Givan, an associate professor at Rutgers University’s School of Management and Labor Relations, said the strike gives more leverage to students who are demanding that UC disclose and end its investments in Israeli institutions in response to the Israel-Hamas war.

Other unions in California already are lending their support to the striking graduate students, according to Rebecca Gross, a doctoral candidate in literature who is the unit chair for UAW 4811 at UC Santa Cruz.

UPS delivery workers, who are unionized with the Teamsters, are rerouting parcels that were sent to UC Santa Cruz in a move that will force faculty to travel to affiliated UPS stores to pick up their mail.

Unionized Santa Cruz bus service workers aren’t stopping inside the school and are instead making passengers disembark at the picket lines just outside campus.

“People are organizing right now inside and outside of the workplace, and they want to use all paths that are available to them,” said Givan, who serves as general vice president of her faculty union. “Things like grievances and unfair labor practice charges can be effective, but are also very slow. Strikes can work and sometimes work more quickly.”

To contact the reporters on this story: Parker Purifoy in Washington at ppurifoy@bloombergindustry.com; Maxwell Adler in Los Angeles at madler60@bloomberg.net

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com

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