How California teachers can bypass state strike restrictions

The Oakland teachers strike is over, the school year has ended, but the legal battle over the 12-day walkout that probably violated state bargaining rules could be just beginning.

The unusual case and a similar legal case settled Thursday in Los Angeles, stemming from a three-day strike of school support staff such as bus drivers, teacher aides and custodians, highlight the power imbalance in California school strikes that left tens of thousands of students without classroom instruction.

The system has become so heavily tilted in favor of labor unions that if school workers choose to strike without first following state-mandated negotiation procedures, which include mediation and fact-finding, there’s little district officials can do to stop them.

The first arbiter of disputes over the legality of strikes is the labor-friendly California Public Employment Relations Board, known as PERB, whose members are appointed by the governor.

Currently four of the five board seats are filled. The appointees of Jerry Brown and Gavin Newsom are two former union presidents, a former union lawyer and a former Democratic assemblyman.

A school district cannot go directly to court seeking an injunction to immediately stop what it considers an illegal strike. Only the PERB board can seek court action. So, the district must persuade PERB to intervene.

J. Felix De La Torre, PERB’S general counsel, said the board has received six injunction requests from school districts during his eight-year tenure but has not pursued any of them in court.

Beyond an injunction, districts and unions can also go before an administrative law judge at PERB to pursue claims of improper bargaining or strike behavior. The judge’s decision can then be appealed to the board and eventually to the state appellate courts, which usually defer to the board.

So a resolution can take years, long after a strike is settled. Which is one of the reasons why districts and unions usually drop their complaints when they settle their strikes.

It took until Thursday, more than two months after the settlement of the Los Angeles strike, for that district and the union to agree to also drop their legal actions before PERB. Meanwhile, the PERB cases pertaining to the Oakland strike are still active.

De La Torre says that, too, is a first during his tenure with PERB — the first time districts have settled their strikes without resolving the pending labor-practices complaints before the state board. “Normally this happens at the time they settle the contract itself,” he said.

In cases such as this, PERB does not have authority to issue fines. But it could issue a cease-and-desist order — essentially a warning to not repeat the offense. De La Torre says such a finding in favor of a school district could bolster its arguments to PERB about union conduct if a similar situation arose in a future labor dispute.

Indeed, Oakland school board member Sam Davis, who was elected with teacher-union backing, says he wants his district to obtain a declaration that the strike was illegal “to inhibit people doing it in the future.”

PERB has held that employees are barred from striking before going through impasse procedures, which include mediation and fact-finding. But PERB “has recognized an exception that swallows the rule,” says Tim Yeung, a labor and employment lawyer who publishes the “California PERB Blog.”

If a union persuades PERB that a school district is using unfair labor practices by failing to follow state bargaining rules, it can strike prior to completing the impasse procedures.

That was the scenario in Oakland before the strike. No impasse was ever declared, and the negotiations never got to the mediation and fact-finding stages. But the teachers walked out anyhow, claiming the district had failed to bargain in good faith by, for example, offering what the union called “predictably unacceptable compensation proposals.”

For those who followed the strike closely, the union’s claim was dubious. The substantial economic portion of the contract that was eventually agreed to was very similar to what had been offered before the teachers went out on strike.

The fight during the strike was over so-called “common good” issues: school closures, reparations, housing and transportation, environmental justice and school governance. Those issues should not be part of a labor contract.

They were eventually resolved outside the contract in separate memorandums of understanding that contained small changes to current district practices. Davis, in an excellent review of the walkout, says those issues “could easily have been agreed to without recourse to a strike.”

But the Oakland teachers union was hellbent on its members walking out just three weeks before the end of the school year despite the effect on students, especially those approaching graduation.

And, by lodging questionable accusations against the district of unfair bargaining practices, the teachers ensured there was little that could be done to stop their strike.

Daniel Borenstein is editor of the East Bay Times opinion pages. Reach him at dborenstein@bayareanewsgroup.com