How California teachers can circumvent state strike restrictions – San Bernardino Sun

Oakland Unified School District teachers, students and parents march down Fruitvale Avenue from United for Success Academy to Josie de la Cruz Park during the second day of the Oakland Education Association teachers union walkout in Oakland, California on Friday May 5, 2023. (Ray Chavez/Bay Area News Group)

The Oakland teachers’ strike is over, the school year is over, but the legal battle over the 12-day strike that likely violated state bargaining rules may be just beginning.

The unusual case, and a similar legal case settled Thursday in Los Angeles, stemming from a three-day strike by school support staff such as bus drivers, teacher aides and custodians, highlights the imbalance of power in California school strikes. which left tens of thousands of students. no classroom instruction.

The system has become so skewed in favor of the unions that if school workers decide to strike without first following state-mandated bargaining procedures, which include mediation and investigation, there is little district officials can do. to stop them.

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

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

A school district cannot go directly to court for a court order to immediately stop what it considers to be an illegal strike. Only the PERB board can request court action. So the district must persuade PERB to intervene.

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

Beyond a court order, districts and unions can also go before an administrative law judge at PERB to bring claims of bargaining or strike misconduct. The judge’s decision can then be appealed to the board and, eventually, to the state appellate courts, which usually refer to the board.

Therefore, a resolution can take years, long after a strike is resolved. Which is one reason districts and unions often put their grievances aside when settling their strikes.

It wasn’t until Thursday, more than two months after the settlement of the Los Angeles strike, that that district and the union agreed to drop their legal actions against PERB as well. Meanwhile, the PERB cases related to the Oakland strike are still active.

De La Torre says it’s also the first time during his tenure with PERB: the first time districts have resolved their strikes without resolving pending labor practice complaints with the state board. “Normally this happens at the time they settle the contract itself,” he said.

In cases like this, PERB does not have the authority to issue tickets. But you could issue a cease and desist order, essentially a warning not to repeat the offense. De La Torre says that such a decision in favor of a school district could strengthen his arguments before PERB about union conduct if a similar situation arose in a future labor dispute.

In fact, Oakland school board member Sam Davis, who was elected with the backing of the teachers’ union, says he wants his district to get a statement that the strike was illegal “to inhibit people from doing it in the future”.

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

If a union convinces PERB that a school district is using unfair labor practices by not following state bargaining rules, it can go on strike before completing deadlock proceedings.

That was the scenario in Oakland before the strike. A deadlock was never declared, and the negotiations never reached the mediation and fact-finding stages. But the teachers walked out anyway, claiming the district had failed to bargain in good faith by, for example, offering what the union called “predictably unacceptable compensation proposals.”