Keith Bray Portrait

legal insights

by Keith Bray

California’s labor relations laws need flexibility during the state of emergency


he beat goes on for district and county board members and superintendents. For more than a year, they have been caught in a cycle of proposals, plans, guidance, orders and legislation aimed at safely reopening schools. Increasing the challenge faced by local educational agencies in complying with this ever-changing backdrop, and explaining the changes to stakeholders, is the fact that each change may trigger another round of collective bargaining. Unfortunately, in many cases, this cycle of constant change has worked to impede the reopening of schools.

A recent attempt to legislate through this crisis was Assembly Bill 86, introduced on Feb. 18 and signed into law by Governor Gavin Newsom on March 5. This “grand bargain” was reached two months after Gov. Newsom’s Safe Schools for All plan to reopen schools by Feb. 1 got little traction. Shortly after the Governor released his plan, another guidance issued by the California Department of Public Health made it possible for schools that had opened in the red tier and elementary schools that had obtained a waiver to open in the purple tier to stay open. CDPH also introduced a new color, deep purple, which helped ease up on the requirements to reopen schools in counties where the virus was still considered “widespread.” All of this took place in a span of two months, which in COVID time, seemed like six. And yet, the logjam to reopen schools for all students willing to attend continued.
A flexible pencil tied in a knot and surrounded by a group of wooden pencils pointing toward it

How we got here

A recap for those of you scoring at home. In response to the COVID-19 pandemic, Gov. Newsom invoked his executive power on March 4, 2020, to proclaim a state of emergency. (Gov. Code § 8625.) During the state of emergency, a Governor may suspend state laws, suspend and make regulations, and issue executive orders as necessary. (Gov. Code §§ 8558, 8627.5, 8567.) The emergency lasts until it is lifted either by the Governor or by a concurrent resolution approved by the Legislature. (Gov. Code § 8629.) When the state of emergency was declared, there were no deaths and just over 50 cases of COVID-19 reported in California. One year later, there are over 50,000 deaths and 3.4 million reported cases of COVID-19. This impact is hard to comprehend and one can only wonder what the loss of life in California would have been if public health mitigation measures, such as wearing masks in enclosed public places, had not become such a crucial part of everyday life.

Balancing the health risk associated with COVID-19 with the educational needs of students has been a consistent challenge for leadership teams. Clearly there has been a state and nationwide conflict between those advocating for the immediate return to school and those wanting more time to make sure the coast is clear, with court skirmishes breaking out at the margins. Board members are rightfully concerned about the mental health and academic progress of students who are missing out on the benefits of in-person instruction and socialization. Board members are also justifiably concerned for the teachers and school staff responsible for providing and assisting with instruction and for parents responsible for finding the time during their workday for learning to take place. In the second year under the state of emergency, isolation abounds, and fatigue is setting in.

The response to COVID-19 has exacerbated the inequities in education, internet access, health care, housing and employment experienced by those families living on the lower socioeconomic rungs as well as by families of color. The virus has only widened the gulf between those who can afford to attend private school and those who cannot. This situation, where governing board’s balance concerns about the adverse effects of distance learning with providing a learning environment of unknown health risks and potential legal liability, has led to a standoff with labor in many communities.

What to do?

Since last May, there has been — count em’ — 10 guidances issued for schools by CDPH alone. Each CDPH guidance provoked a new round of bargaining by including several mandatory subjects of bargaining. Of note, “safety conditions of employment” is listed as a mandatory subject of bargaining. (Gov. Code § 3543.2.) But the bargaining carousel is not spinning just by the actions of public health officers, who to their credit have long advocated for “consultation” between labor and management over emergency mitigation measures that double as conditions of employment, but also by Cal/OSHA and by state legislators who included in AB/SB 86 many subjects considered negotiable under the Educational Employment Relations Act (EERA).

The countless hours leadership teams have spent bargaining since the first stay-at-home order last March is a telltale sign that California’s labor law does not function well during a state of emergency. EERA was signed into law 46 years ago by former Gov. Jerry Brown. (Gov. Code §§ 3540 et seq.) Arguably the most noteworthy change in 1975, besides creating the Educational Employment Relations Board, now the Public Employment Relations Board (PERB), was requiring school employers to negotiate, instead of to meet and confer, with their represented employees over the conditions of employment. (Gov. Code §§ 3541, 3543.2.) So, instead of “consultation,” negotiations were tied to a statutory “impasse” process which can delay an employer’s final implementation of its decision until a dispute goes through mediation and factfinding. (Gov. Code §§ 3548- 3548.3.) Regardless of the urgency of the issue being negotiated, the impasse process can take months to complete. And because labor disputes can be the subject of unfair labor practice charges, it can take years for PERB and for appellate courts to finally decide the matter. (Gov. Code § 3541.5.)

A page on a door with the word 'closed' in large red text and 'Coronavirus' underneath in smaller red letters
During this pandemic, employee representatives, some representing the largest bargaining units in the state, have conditioned reopening on a bevy of safety measures, including the “opportunity” for employees to be vaccinated. With vaccine distribution issues, and with the ongoing conflict at bargaining tables over when it is safe to reopen for in-person learning, the question remains whether any action taken under the Capitol dome will be enough to break the logjam.

How, during a state of emergency, can we steer clear of the logjam? By taking action that should have been taken long ago, either by legislation or by executive order, to temporarily suspend the impasse process in EERA for issues relating to the pandemic and replace it with the meet and confer requirement. This temporary suspension would finally move the ball down the field and put the decision to reopen schools — after a credible, transparent and good faith consultation with employee labor groups — in the hands of those who have been elected to ensure that before doing so, the necessary safety protocols and essential mitigation measures are in place.

Keith Bray is general counsel and chief of staff for CSBA.

The information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.