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Court of Appeal:
Public Employees in California Have Qualified Right to Strike
Justices Reject Challenge to PERB Decision That One-Day Labor Action by Teachers Was Not an Unfair Practice
By a MetNews Staff Writer
Teachers in public schools in California and other government employees have a right to go on strike, where the work action does not create an imminent threat to the public welfare, Div. Five of the First District Court of Appeal has held.
In 2024, the state Public Employment Relations Board (“PERB”) found, in Decision No. 2906, that a one-day unfair labor practice (“ULP”) strike staged in 2022 by the Oakland Education Association (“OEA”), a union, in protest to the closure of seven schools and a merger of two others, did not constitute an unfair practice. The Oakland Unified School District, which brought the charge, sought a writ of mandate in the Court of Appeal challenging PERB’s decision.
Div. Five last March 24 granted a writ of review and, on Wednesday, it declined to disturb PERB’s decision, citing the considerable deference courts lend to those determinations by that agency that are within its area of its expertise.
Chou’s Opinion
Justice Danny Y. Chou wrote:
“Ever since the Legislature began giving public employees the right to collectively bargain through laws like the Educational Employment Relations Act (EERA)…, the issue of whether strikes are legal under those laws has been lurking in the background. Despite this, no California court has squarely addressed this issue. We fix this curious omission and hold that public school employees may engage in unfair practice strikes under EERA.”
The justice noted that the California Supreme Court said in its 1985 decision in County Sanitation Dist. No. 2 v. Los Angeles County Employees Assn. that “the legality of strikes by public employees in California has remained an open question,” that “the common law prohibition against public sector strikes should not be recognized in this state” and courts must “determine on a case-by-case basis whether the public interest overrides the basic right to strike.”
PERB, he pointed out, has taken the stance in its recent decisions that public employees have a qualified right to strike.
School District’s View
The school district argued in seeking writ relief:
“The California Constitution guarantees a fundamental right to education….The language of Article IX requires the Legislature to provide a uniform educational system regarding a course of study and educational progression from grade to grade….Significant disruptions to this constitutional right infringe on students’ rights and school districts’ obligations when they create a real and appreciable impact on educational progression.”
It went on to say:
“By not addressing the constitutional nature of public school employees’ education services, PERB’s long-standing reliance on County Sanitation to justify ULP strikes is misplaced. The services of these public school employees are required to achieve an essential public good: educating the next generation of citizens. Strikes inherently disrupt this mission, harming students’ education and well-being, particularly in underserved communities where families may lack alternatives and which include other particularly vulnerable children, including those with special needs.”
A key issue, as the district phrased it, is:
“[D]oes any provision in the California Constitution, Educational Employment Relations Act…., or other California statute authorize a public school union to conduct an unfair labor practice strike…that deprives public school children of constitutionally and statutorily mandated educational services?”
The answer by the appeals court it proposed was: “No statute in the EERA or elsewhere confers this right.”
True Issue
Chou responded:
“The District, however, misframes the issue before us. The issue is not whether EERA authorizes an unfair practice strike. Rather, the issue, as dictated by California Supreme Court precedents establishing that public employees have a common law right to strike, is whether EERA prohibits unfair practice strikes. Because nothing in EERA clearly prohibits such strikes, we must defer to PERB’s conclusion that EERA allows them.”
He declared:
“[P]ublic school employees, like every other public employee, have a qualified right to strike—including a qualified right to engage in unfair practice strikes—under the common law….They may therefore engage in any unfair practice strike that does not imminently threaten public health or safety so long as no statute or constitutional provision prohibits them from doing so….In other words, public school employees do not lose their common law right to engage in unfair practice strikes under EERA unless EERA actually prohibits them from engaging in that strike….EERA does not.”
Addressing the contention that the California Constitution’s right-to-education provision is defied where teachers go on strike, the jurist set forth:
“[E]ven if the District has standing to assert this constitutional right on behalf of its students…, it has not established that an unfair practice strike always impairs that right….We therefore reject this constitutional challenge.”
Exclusion of Evidence
Then-Chief Administrative Law Judge Shawn P. Cloughesy, now a mediator, excluded evidence the district sought to produce that the one-day strike caused “educational harm,” and PERB, in its June 28, 2024 decision, found no error.
Chou disagreed, expressing the view that “[c]onsidering the harm to students and their families when determining whether a strike constitutes an unfair practice under EERA only makes sense” in light of the potential coercive effect of work stoppages.
Nonetheless, he said, the error was harmless, explaining:
“The exclusion of that evidence had no bearing on the District’s remedy because PERB dismissed the District’s unfair practice complaint. It also had no bearing on OEA’s liability because the harm caused by OEA’s one-day strike was no greater than the harm caused by any work stoppage. In its offer of proof, the District only stated that it wished to introduce evidence of the loss of instructional time and school services caused by the loss of one school day due to the strike. It did not identify anything unusual about the strike or the lost school day.”
He continued:
“Because every strike by public school employees results in the loss of at least one day of school, OEA’s strike caused no more harm than any other strike. Thus, the excluded evidence could not have made a difference here. If it did, all strikes would be prohibited, paradoxically negating the need for that evidence. In any event, we must defer to PERB’s decisions holding that unfair strikes are allowed under EERA notwithstanding the educational harm that may be caused by such strikes.”
The case is Oakland Unified School District v. PERB (Oakland Education Association, CTA/NEA), A171007.
OEA had scheduled another one-day strike for last May 1 but called it off on April 30. Aside from the 2022 one-day strike that was the subject of Wednesday’s Court of Appeal opinion, it staged seven-day strikes in 2019 and 2023.
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