Labor Relations/Strikes
Oakland Unified School District v. PERB – California Court of Appeal, First Appellate District (A171007)

MEMBER(S) INVOLVED: Oakland Unified School District

IMPORTANCE OF STATEWIDE ISSUE:

Oakland Unified School District (OUSD) appealed a recent California Public Employment Relations Board (PERB) decision upholding a pre-impasse “unfair practice strike” by the Oakland Education Association (OEA), OUSD’s certificated union. The plain language of the Educational Employment Relations Act (EERA) only authorizes a union to strike after first completing the EERA’s impasse procedures. However, PERB has recognized, through its precedential decisions, a union’s right to engage in a strike without completing the impasse procedures when that strike was “provoked” by an employer’s own unfair practice. These pre-impasse strikes — called “unfair practice strikes” — are not explicitly authorized by the EERA or any other California law. Instead, they were created by PERB through its own caselaw, relying loosely on authority from the National Labor Relations Board, PERB’s federal analogue.

Unions are not required to “prove” anything prior to engaging in an unfair practice strike. Instead, these strikes are initially supported through simple allegations that the LEA has engaged in an unfair practice, and that that unfair practice was at least a partial reason for the strike. Neither of these factors need be finally proven until many months (or even years) later, when the strike’s legality is litigated before PERB. In the meantime, the LEA and its students have already suffered from the strike’s disruption.

Despite their shaky legal foundation, unfair practice strikes are utilized statewide and, though not their intended purpose, are often used as a pressure tactic during negotiations. And since the focus of OUSD’s appeal was to challenge the legality of unfair practice strikes, a favorable decision would have benefited LEAs throughout the state.

SUMMARY OF THE CASE AND ACTION TAKEN BY ELA:
Following an alleged unfair practice strike on April 29, 2022, OUSD filed an unfair practice charge against OEA. The administrative law judge (ALJ) assigned to the case denied OUSD’s charge, finding that OEA’s strike was provoked by OUSD’s own unfair practice. The ALJ’s determination was upheld by PERB’s board on June 28, 2024. In doing so, PERB again found that unfair practice strikes were permissible, and found it unnecessary for a union to prove the employer’s unfair practice before engaging in such a strike.

OUSD appealed the case to the First District Court of Appeal on July 26, 2024. OUSD’s appeal primarily challenged PERB’s practice of permitting unfair practice strikes without first completing the statutory impasse procedures and/or requiring adjudication of the unfair practice complaint to be complete so that the union has proved that the LEA in fact engaged in an unfair practice. Additionally, OUSD argued that unfair practice strikes violate students’ due process rights under the California and U.S. constitutions.

The ELA filed an amicus brief was filed on March 23, 2025, and included various arguments including PERB’s failure to consider the fundamental constitutional right to a public education in California, the legislative history that supported a prohibition against unfair practice strikes, and other errors made by PERB in its review of the EERA.

CURRENT STATUS AND/OR OUTCOME:
On July 2, 2025, the First District Court of Appeal issued a decision holding that PERB did not err in finding that unfair practice strikes, or pre-impasse strikes, are permissible under the EERA. Specifically, 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 OUSD made. 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. However, in this scenario, 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.

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.

As of this writing, an appeal to the California Supreme Court has not been filed.

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