Court rules pre-impasse strikes permissible under law

Oakland USD unsuccessfully challenged employee relations board over its finding

On July 2, the First District Court of Appeal issued a decision in Oakland Unified School District v. Public Employment Relations Board (OUSD v. PERB) holding that PERB did not err in finding that unfair practice strikes, or pre-impasse strikes, are permissible under the Education Employment Relations Act (EERA). This is an unfavorable outcome for local educational agencies throughout the state as these unfair practice strikes allow unions to engage in a strike without fully completing the impasse procedures under the EERA or proving the unfair practice allegedly committed by an LEA. Instead, unions may simply allege an unfair practice has occurred that provoked a strike, and the LEA must challenge that allegation, waiting months or years for the outcome to be reached through PERB’s administrative processes.

PERB has a long-standing practice of permitting these unfair practice strikes without requiring unions to complete the statutory impasse procedures or show proof of the alleged unfair practice through an adjudicative procedure. However, there is no specific authority for such strikes in the EERA. OUSD challenged this practice after the administrative law judge and PERB ruled against OUSD in relation to unfair labor practices charges that OUSD and Oakland Education Association (OEA) brought against each other in 2022.

As background, after the OUSD board voted to close several OUSD schools starting in June 2022, and OEA’s request for bargaining over the impact of the closures was rejected, OEA organized a one-day unfair practice strike. OEA argued that the existing collective bargaining agreement and a related board resolution required a planning period and bargaining before any school closures, and the refusal to bargain constituted an unfair practice. Just before the strike, OUSD filed an unfair practice charge against OEA.

PERB determined that OUSD committed unfair practices in violation of the EERA when it failed to bargain the school closures, but that OEA did not violate the EERA through its unfair practice strike. OUSD did not challenge the first determination by PERB but did challenge the unfair practice strike decision as violating the EERA and state and federal constitutions.

The court held that PERB did not clearly err in determining that OEA’s unfair practice strike was legal, and the EERA allows such strikes. Further, the court concluded that the unfair practice strike did not violate the due process or equal protection clauses, or education rights guaranteed under the state and federal constitutions — arguments made by OUSD. Last, the court held that neither the EERA nor the due process clause of the constitution prohibit pre-impasse unfair practice strikes like the one conducted by OEA before there is a determination by PERB that an unfair practice has indeed occurred.

To reach these determinations, the court provided a detailed review of the EERA, statutory and legal history of case law related to strikes, and the wide discretion accorded PERB as the expert in labor-related matters. This history and discretion of PERB was the basis for upholding the rule that public employees may engage in strikes unless there is a statutory prohibition against such an action, a rule the EERA does not specifically contain. Further, under current legal authority, in situations where public employees striking would pose an imminent threat to public health or safety, or “services essential to the public welfare,” unions may be prohibited from striking.

In this scenario, however, OUSD was not able to show that all strikes by public employees in education would violate the constitutional right to education (an essential service) and therefore public school employees generally have the right to strike. More specifically, the court explained that the California Constitution requires only basic education equality, which does not mandate all education services to be offered in an identical way. As a result, a shortened term of school will not create a denial of the education right guaranteed. Instead, “unless the actual quality of the district’s program, viewed as a whole, falls fundamentally below prevailing statewide standards” there is no violation. According to the court, OUSD did not meet this showing. However, this leaves some room for other LEAs to make this argument, depending on the circumstances of an unfair practice strike.

The court also determined that other constitutional claims failed to meet the threshold of a violation. For example, the court found that OUSD did not have standing to raise a procedural due process claim and the claims of equal protection violations were not viable because PERB’s decision in this case did not cause the strike or any resulting disparate impact on students.

Overall, this decision relies heavily on PERB’s precedents and the discretion it holds for determining matters related to labor disputes. The deference the court afforded to PERB was bolstered by reliance on California Supreme Court precedent and an analysis of legislative intent. Ultimately, the court determined that those legal authorities support a broad deference for PERB and its analysis of labor laws. LEAs should be aware of this broad discretion, as well as the now explicit right for public employees, including those who work in education, to participate in unfair practice strikes without proving the employer has committed an unfair practice and without completing the impasse resolution process.