Oakland Unified School Dist. v. Pub. Employment Relations Bd.

Filed 7/2/25

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

OAKLAND UNIFIED SCHOOL

DISTRICT, A171007

Petitioner,

(Public Employment Relations

v. Board Decision No. 2906

PUBLIC EMPLOYMENT Case No. SF-CO-864-E)

RELATIONS BOARD,

Respondent;

OAKLAND EDUCATION

ASSOCIATION, CTA/NEA,

Real Party in Interest.

Ever since the Legislature began giving public employees the right to

collectively bargain through laws like the Educational Employment Relations

Act (EERA), Gov. Code,1 §§ 3540–3549.3, 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 Oakland Education Association, CTA/NEA (OEA) is the exclusive

representative of certain employees of the Oakland Unified School District

1 All further statutory references are to the Government Code unless

otherwise stated.

1

(District), a public school employer. Following a dispute over school closures2

approved by the District, OEA members conducted a work stoppage (strike)

that lasted one day.

OEA filed an unfair practice charge with the Public Employment

Relations Board (PERB), claiming that the District committed unfair

practices in violation of EERA when it approved the school closures. As often

happens in these labor disputes, the District filed a competing unfair practice

charge with PERB, claiming that OEA’s one-day strike constituted an unfair

practice in violation of EERA. After PERB issued separate complaints based

on these competing charges, the parties agreed to bifurcate the hearing on

their two complaints. In its first decision, PERB held that the District

violated EERA; in its second decision, PERB held that OEA did not.

The District does not challenge the first PERB decision. Instead, it

challenges the second PERB decision, which upheld the legality of OEA’s

strike because it was provoked by the District’s unfair practices (unfair

practice strike) and because OEA negotiated in good faith. We reject the

District’s challenge. In doing so, we conclude that PERB did not clearly err in

finding that unfair practice strikes are allowed under EERA. We further

conclude that OEA’s unfair practice strike—which lasted one day—did not

violate the rights to education, due process, or equal protection and that

neither EERA nor the due process clause prohibits pre-impasse unfair

practice strikes conducted before PERB has determined that the public school

employer has, in fact, committed an unfair practice. Finally, we conclude

2 We use the terms “closure,” “close,” and “closing” to refer to any

closure of, consolidation of, or truncation of grades in schools.

2

that PERB erred by excluding evidence of educational harm but that this

error was harmless. We therefore affirm.3

STATUTORY BACKGROUND

We begin with an overview of EERA and its history.

In 1935, Congress adopted the National Labor Relations Act (NLRA;

29 U.S.C. § 151 et seq.) (Compton Education Assn., CTA/NEA (1987) PERB

Order No. IR-50, p. 16 (Compton), overruled in part on other grounds by

Fresno County In-Home Supportive Services Public Authority (2015) PERB

Dec. No. 2418-M, p. 33 (Fresno County))—which “regulates the employment

relations of companies and their employees when such companies are

engaged in activities in interstate commerce” (California Federation of

Teachers v. Oxnard Elementary Schools (1969) 272 Cal.App.2d 514, 520

(Oxnard)). Under section 7 of the NLRA (Section 7), those “[e]mployees shall

have the right to self-organization, to form, join, or assist labor organizations,

to bargain collectively through representatives of their own choosing, and to

engage in other concerted activities for the purpose of collective bargaining or

other mutual aid or protection . . . .” (29 U.S.C. § 157, italics added.) “ ‘These

“concerted activities” . . . clearly include the right to strike . . . .’ ” (G.C.

3 We grant the District’s unopposed request for judicial notice of

PERB’s decision in this case and its regulations. (See Assn. for Los Angeles

Deputy Sheriffs v. County of Los Angeles (2024) 106 Cal.App.5th 982, 996

[PERB decisions]; Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125,

145 [regulations].) We treat the District’s request for judicial notice of

legislative history materials as “ ‘a citation to those materials that are

published.’ ” (See Madrigal v. Hyundai Motors America (2025) 17 Cal.5th

592, 609, fn. 10.) Finally, we grant amicus curiae California School Boards

Association’s (CSBA) unopposed request for judicial notice of the Final Report

of Assembly Advisory Council on Public Employee Relations (Aaron Report).

(Evid. Code, § 452, subd. (c).)

3

Breidert Co. v. Sheet Metal Workers Internat. Assn. (1956) 139 Cal.App.2d

633, 638–639 (G.C. Breidert).)

Despite the NLRA, California retained the right to “impose upon the

relationship of employer to employee such restrictions as reasonably may be

deemed conducive to the general welfare.” (Oxnard, supra, 272 Cal.App.2d at

p. 520.) Pursuant to this authority, the Legislature in 1937 adopted Labor

Code section 923—which establishes the policy of the state “concerning the

regulation of employment relations in private industry.” (Oxnard, at p. 520.)

That section states in relevant part that “it is necessary that the individual

workman . . . shall be free from the interference, restraint, or coercion of

employers of labor, or their agents, in the designation of such representatives

or in self-organization or in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection.”4 (Lab. Code, § 923,

italics added.) The italicized language (concerted activities language)—which

is identical to language in Section 7—“guarantees to those employed by a

private business purely local in nature . . . the right . . . to participate in

4 Labor Code section 923 states in full: “In the interpretation and

application of this chapter, the public policy of this State is declared as

follows: [¶] Negotiation of terms and conditions of labor should result from

voluntary agreement between employer and employees. Governmental

authority has permitted and encouraged employers to organize in the

corporate and other forms of capital control. In dealing with such employers,

the individual unorganized worker is helpless to exercise actual liberty of

contract and to protect his freedom of labor, and thereby to obtain acceptable

terms and conditions of employment. Therefore it is necessary that the

individual workman have full freedom of association, self-organization, and

designation of representatives of his own choosing, to negotiate the terms and

conditions of his employment, and that he shall be free from the interference,

restraint, or coercion of employers of labor, or their agents, in the designation

of such representatives or in self-organization or in other concerted activities

for the purpose of collective bargaining or other mutual aid or protection.”

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concerted activities to secure legitimate employment benefits”—including

strikes. (Oxnard, at p. 521.) Labor Code section 923 does not, however, apply

“to public employees, who occupy a status in relation to their employer

different from that of their private counterparts . . . .” (Oxnard, at p. 521.)

Against this historical backdrop, the Legislature began responding to

“the demands of public employees for a more effective and substantial voice

in the determination of the terms and conditions of their employment.”

(Oxnard, supra, 272 Cal.App.2d at pp. 521–522.) Beginning in 1957, the

Legislature adopted “a series of enactments designed to regulate separately

various aspects of public employment.” (Id. at p. 522.) In doing so, the

Legislature attempted “to reconcile by selective innovation the divergent

elements inherent in public employer-employee relations including the

acknowledged distinctions in the status and obligations of public and private

employees, as well as the various occupations and professions represented by

public employment.” (Id. at p. 523.)

In 1961, the Legislature adopted the George Brown Act (Brown Act)

(former § 3500 et seq.)—which “granted public employees in California the

right to organize and have their representatives ‘meet and confer’ with their

employers over wages and working conditions.” (City of San Jose v.

Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 603 (San

Jose).) “Although public school employers and employees were originally”

covered by the Brown Act, the Legislature, “in recognition of the unique

relationship between public school employers and employees,” adopted the

Winton Act (Educ. Code, former § 13080 et seq.) in 1965. (Westminster

School Dist. v. Superior Court (1972) 28 Cal.App.3d 120, 127 (Westminster).)

The Winton Act applied “only to public school employers and employees.”

(Westminster, at p. 127.)

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The Winton Act did “not embody the concept of collective bargaining”

(Westminster, supra, 28 Cal.App.3d at p. 128) or grant a right to strike (San

Juan Teachers Assn. v. San Juan Unified School Dist. (1974) 44 Cal.App.3d

232, 249 (San Juan Teachers)). Instead, it gave public school employees the

right “to voice their views and ideas through recognized representatives and

to have these views and ideas considered by the public school employer . . . .”

(Westminster, at p. 128.) To this end, the Winton Act required the employer

to “ ‘meet and confer “with representatives of employee organizations upon

request with regard to all matters relating to employment conditions and

employer-employee relations” ’ ” and “ ‘ “the definition of educational

objectives . . . .” ’ ” (Oxnard, supra, 272 Cal.App.2d at p. 524, quoting Educ.

Code, former § 13085.) It also established “a factfinding procedure for

resolving persistent disagreements.” (San Mateo City School Dist. v. Public

Employment Relations Bd. (1983) 33 Cal.3d 850, 860 (San Mateo).) But “the

results of [that] procedure were not binding” (ibid.), and “all final decisions

[were] left to the public school employer” (Westminster, at p. 128).

After taking public school employees out of the purview of the Brown

Act, the Legislature expanded the rights of public employees still covered by

that Act by enacting the Meyers-Milias-Brown Act (MMBA; § 3500 et seq.) in

1968. (San Jose, supra, 49 Cal.4th at p. 603.) The MMBA authorizes “public

entities and labor representatives not only to confer but also to reach binding

agreements on wages, hours, and working conditions.” (San Jose, at p. 603.)

In 1974, a Court of Appeal held that the Winton Act gave public school

employees the right to meet and confer about budgeting and spending

priorities. (See San Juan Teachers, supra, 44 Cal.App.3d at pp. 257–258.)

The very next year, the Legislature replaced that Act with EERA—which still

governs today. (San Mateo, supra, 33 Cal.3d at p. 861.) The purpose of

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EERA is “to promote the improvement of personnel management and

employer-employee relations within the public school systems in the State of

California by providing a uniform basis for recognizing the right of public

school employees to join organizations of their own choice, to be represented

by the organizations in their professional and employment relationships with

public school employers, to select one employee organization as the exclusive

representative of the employees in an appropriate unit, and to afford

certificated employees a voice in the formulation of educational policy.”

(§ 3540.)

To accomplish this purpose, EERA “establishes a system of collective

bargaining” (San Mateo, supra, 33 Cal.3d at p. 855) that “closely tracks” the

MMBA system (Redwoods Community College Dist. v Public Employment

Relations Bd. (1984) 159 Cal.App.3d 617, 621 (Redwoods)) and has “marked

similarities” to the NLRA system (San Diego Teachers Assn. v. Superior

Court (1979) 24 Cal.3d 1, 12 (San Diego Teachers)). This system gives public

school employees “significantly stronger” rights to bargain than the Winton

Act. (San Mateo, at p. 862.) But in return, EERA limits the scope of matters

subject to bargaining. Those matters—i.e., “matters relating to wages, hours

of employment, and other terms and conditions of employment” (§ 3543.2,

subd. (a), italics added)—are therefore narrower than the matters subject to

meet and confer under the Winton Act—i.e., “all matters relating to

employment conditions and employer-employee relations, including, but not

limited to wages, hours and other terms and conditions of employment” (Educ.

Code, former § 13084, italics added).

Thus, EERA gives “[p]ublic school employees . . . the right to form, join,

and participate in the activities of employee organizations of their own

choosing for the purpose of representation on all matters of employer-

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employee relations.” (§ 3543, subd. (a).) But “[t]he scope of [that]

representation” is “limited to matters relating to wages, hours of

employment, and other terms and conditions of employment.” (§ 3543.2,

subd. (a).) “ ‘Terms and conditions of employment’ mean health and welfare

benefits . . . , leave, transfer and reassignment policies, safety conditions of

employment, class size, procedures to be used for the evaluation of

employees, organizational security . . . , procedures for processing grievances

. . ., the layoff of probationary certificated school district employees . . . , and

alternative compensation or benefits for employees adversely affected by

pension limitations . . . .” (Ibid.) Finally, EERA renders inapplicable “the

provisions of [Labor Code] Section 923 . . . .” (§ 3549.)

As for negotiations over “wages, hours of employment, and other terms

and conditions of employment” (§ 3543.2, subd. (a)), EERA imposes certain

obligations on public school employers and employee unions. For example, an

employer must “meet and negotiate” only “with representatives of employee

organizations selected as exclusive representatives . . . upon request”

(§ 3543.3) and do so “in good faith” (§ 3543.5, subd. (c)). Likewise, a union

must “meet and negotiate in good faith with a public school employer of any

of the employees of which it is the exclusive representative.” (§ 3543.6,

subd. (c).)

To “oversee and facilitate” these negotiations, EERA created PERB, “an

independent board . . . appointed by the Governor with broad powers and

duties to administer [EERA].”5 (San Mateo, supra, 33 Cal.3d at p. 856; see

§§ 3541, 3541.3.) It also established procedures so PERB could assist in

5 The name of the board was originally the Educational Employment

Relations Board. It was renamed PERB in 1977. (San Jose, supra,

49 Cal.4th at pp. 603–604.)

8

resolving impasses during negotiations. Under these impasse procedures,

“[e]ither a public school employer or the exclusive representative may declare

that an impasse has been reached between the parties in negotiations” and

ask PERB to “appoint a mediator for the purpose of assisting them in

reconciling their differences and resolving the controversy on terms which are

mutually acceptable.” (§ 3548.) If PERB “determines an impasse exists,” it

must “appoint a mediator . . . .” (Ibid.) If the mediator “is unable to effect

settlement of the controversy” and “declares that factfinding is appropriate to

the resolution of the impasse, either party may . . . request that their

differences be submitted to a factfinding panel.” (§ 3548.1, subd. (a).) PERB

appoints the “chairperson” of that panel unless the parties “mutually agree

upon” one. (Id., subds. (a), (b).)

The factfinding panel “may make inquiries and investigations, hold

hearings, and take any other steps as it may deem appropriate.” (§ 3548.2,

subd. (a).) It has “the power to issue subpoenas requiring the attendance and

testimony of witnesses and the production of evidence.” (Ibid.) “If the

dispute is not settled . . . , the panel shall make findings of fact and

recommend terms of settlement.” (§ 3548.3, subd. (a).) Those findings and

recommendations are “advisory only” but become “public.” (Ibid.) Both the

public school employer and employee union have a duty to participate in good

faith in these impasse procedures. (§§ 3543.5, subd. (e), 3543.6, subd. (d).)

Finally, EERA gives PERB the power “[t]o investigate unfair practice

charges or alleged violations of” EERA. (§ 3541.3, subd. (i).) “The initial

determination as to whether the charges of unfair practices are justified, and,

if so, what remedy is necessary to effectuate the purposes of this chapter,

shall be a matter within the exclusive jurisdiction of” PERB. (§ 3541.5.) In

response to unfair practice charges, PERB may “take any action and make

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any determinations . . . [it] deems necessary to effectuate the policies of”

EERA. (§ 3541.3, subd. (i), italics added.) This includes the power “to issue a

decision and order directing an offending party to cease and desist from the

unfair practice and to take such affirmative action . . . as will effectuate the

policies of” EERA. (§ 3541.5, subd. (c).) But “in an action to recover damages

due to an unlawful strike,” PERB may not “award strike-preparation

expenses as damages” or “damages for costs, expenses, or revenue losses

incurred during, or as a consequence of, an unlawful strike.” (§ 3541.3,

subd. (i).)

FACTUAL BACKGROUND

A.

Following a seven-day strike in early 2019 and lengthy negotiations

that included an impasse declaration and fact finding, the District and OEA

agreed to a new collective bargaining agreement effective from July 1, 2018

through June 30, 2021 (2019 CBA). During those negotiations, the District

publicly stated that it would have to close some schools to meet OEA’s “wage

demands” and the District’s Board of Education (Board) voted to close one

school.

Even though they discussed their disagreements over school closures

during the negotiations, the District and OEA did not resolve those

disagreements in the 2019 CBA. Instead, they agreed to resolve them

through a resolution introduced by one Board member for the Board’s

consideration. No assurances that the Board would adopt that resolution

were given.

Nonetheless, the Board did adopt that resolution in March 2019.

Under Resolution No. 1819-0178 (2019 Resolution), “no closure, merger, or

consolidation would occur without inclusion of a planning period (no less than

10

a school year or 9 months) between the vote to approve the action and its

implementation . . . .” (Italics added.) The District complied with the 2019

Resolution in closing some schools the next year.

After the 2019 CBA expired, the District and OEA reached a tentative

agreement in November 2021 to extend that CBA until October 31, 2022.6

Less than a month later, the Board introduced Resolution No. 2122-0026

(2022 Resolution)—which directed the District’s superintendent

(Superintendent) to present a list of schools to be closed starting June 2022.

On January 12, 2022, the Board adopted the 2022 Resolution—which waived

the nine-month “planning period” established by the 2019 Resolution.

The Superintendent provided a list of proposed school closures to the

Board on January 31, 2022. Three days later, OEA sent the District a letter

demanding that it bargain over the proposed closures and its decision to

waive the nine-month planning period established by the 2019 Resolution.

On February 8, 2022, the District responded in writing that the

proposed school closures were not “subject to negotiations” and that the 2019

CBA covered the impact of those closures. An hour later, OEA sent an e-mail

to the District, “clarifying and amending” its demand to include a request to

bargain over “the impacts and effects of the decision to close” schools.

Roughly 30 minutes later, the Board held a meeting and voted to approve a

modified version of the Superintendent’s proposal—which included several

school closures for the 2022–2023 school year.

Soon after the Board vote, the District began to implement the

approved school closures. For example, the District notified impacted

families on February 9 and 11, 2022 and met with parents and staff about the

upcoming closures. The District also notified employees about their potential

6 The District ratified the extension in April 2022.

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transfers to new schools and the need to work with impacted families.

Human resources staff met with employees about their upcoming transfers

that same month.

On February 28, 2022, the District responded to OEA’s February 8 e-

mail. In its response, the District reiterated that it had no duty to bargain

but asked OEA to “identify in writing” any effects it believed were

bargainable. The District and OEA then exchanged several e-mails

regarding OEA’s demands.

On April 16, 2022, OEA sent a letter to its members, “announcing the

opening of the [unfair practice] strike vote.” The letter asked OEA members

to authorize a one-day strike on Friday, April 29—which they did. The

District learned about the proposed strike and sent OEA a cease-and-desist

letter on April 23. On April 25, OEA sent the District “a notice of intent to

strike,” explaining that its members had authorized the strike in response to

the District’s “unfair labor practices in connection with its decision on

February 8” to close schools. Roughly 95 percent of OEA’s members “who

work day-to-day” participated in the strike on April 29.

B.

On February 15, 2022, OEA filed an unfair practice charge against the

District. PERB expedited the charge and issued a complaint in response to it

on March 4. The complaint alleged that the District violated EERA by failing

to provide: (1) notice or an opportunity to negotiate before it decided to waive

the planning period established by the 2019 Resolution; and (2) notice and a

“meaningful opportunity to negotiate over the reasonably foreseeable effects

of its decision [to close schools] before implementation.”

Two and a half weeks later, OEA asked PERB to seek injunctive relief

to halt the District’s “plan to close . . . three District schools at the end of the

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2021–2022 school year.” PERB denied the request “without prejudice” but

expedited the “matter.”

On April 27, 2022, the District filed an unfair practice charge against

OEA. The next day, the District asked PERB to seek injunctive relief to

prevent OEA’s planned one-day strike on April 29. PERB denied the request

for injunctive relief “without prejudice” but “order[ed] that this matter be

expedited.”

PERB issued a complaint in response to the District’s charge on May 3,

2022. The complaint alleged that OEA “engaged in a one-day strike” before

completing “the statutorily required impasse procedures” in violation of

EERA.7

The parties stipulated that PERB should resolve OEA’s complaint

before resolving the District’s complaint. PERB granted the stipulation and

placed the District’s complaint “in abeyance, while” OEA’s complaint “[was]

being expedited.”

C.

In Oakland Unified School Dist. (2023) PERB Dec. No. 2875 (Oakland

Unified), PERB held that the District committed unfair practices in violation

of EERA. PERB found that the District “must bargain over notice of a school

closure, either in effects/implementation bargaining over a particular closure

decision or as a mandatory subject if the issue arises as a proposed new or

7 On May 1, 2023, the District moved to amend PERB’s complaint in

this case or to consolidate this case with its other unfair practice complaint

against OEA. Through the motion, the District sought to add another one-

day strike by OEA in March 2023 and another planned strike in May 2023 to

the complaint in this case. PERB denied “[t]he request to amend the

complaint” and “for consolidation.” The District did not challenge this denial.

(See Oakland Education Assn. (2024) PERB Dec. No. 2906, p. 12 (Oakland

Education).)

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changed policy of general application.” (Oakland Unified, at p. 15.)

Concluding that the District’s decision to waive the nine-month “planning

period” established by the 2019 Resolution was a change in policy, PERB

found that the District violated EERA by refusing to bargain before making

that decision. (Oakland Unified, at pp. 17–19.) PERB also found that the

District violated EERA by failing to “provide adequate notice and opportunity

to bargain in good faith over the implementation and effects of its specific

school closure decisions.” (Oakland Unified, at p. 19.) The District did not

challenge this decision by PERB.

D.

After PERB resolved OEA’s complaint, it turned to the District’s

complaint. Affirming the administrative law judge’s (ALJ) dismissal of that

complaint, PERB “conclude[d] that OEA did not violate EERA.” (Oakland

Education, supra, PERB Dec. No. 2906, at p. 2.)

As a threshold matter, PERB rejected the District’s contention that

OEA had no right to engage in an unfair practice strike. Relying on its own

precedents and our Supreme Court’s decision in San Jose, supra, 49 Cal.5th

597 (Oakland Education, supra, PERB Dec. No. 2906, at pp. 14–19), PERB

held that OEA’s “right to strike is statutorily protected” by EERA (Oakland

Education, at p. 19). PERB, however, recognized that this “right is qualified

. . . to the extent that it is inconsistent with another EERA provision—the

duty to bargain in good faith.” (Ibid.)

PERB then held that OEA did not breach its duty to bargain in good

faith because it had no duty to bargain at all. (Oakland Education, supra,

PERB Dec. No. 2906, at pp. 21–22.) According to PERB, “the District failed

to provide adequate notice and opportunity to engage in good faith effects

negotiations before implementing its decisions to change the nine-month

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notice requirement in [the 2019 Resolution] and to close schools . . . after the

2021–2022 school year.” (Id. at p. 22.) Thus, OEA “had no duty to pursue

negotiations” that would have been “futile as a matter of law.” (Ibid.)

PERB also found that OEA did not breach its duty to bargain in good

faith by engaging in a pre-impasse strike. (Oakland Education, supra, PERB

Dec. No. 2906, at p. 30.)

First, PERB concluded that the strike was not “ ‘pre-impasse’ ” because

“the parties were not engaged in [collective bargaining agreement]

negotiations when OEA struck.” (Oakland Education, supra, PERB Dec.

No. 2906, at p. 30.) Indeed, “the District had already implemented its

decision to abandon the nine-month notice period and had begun

implementing its school closure decision” before providing “notice and an

opportunity to bargain.” (Ibid.) According to PERB, “[i]t ma[de] no sense to

require OEA to hold off on a strike until it reached an impasse given that the

District’s violation made good faith bargaining impossible . . . .” (Ibid.)

Second, even if OEA had engaged in a pre-impasse strike, PERB

concluded “that OEA carried its burden in rebutting the presumption against

[such] strikes.” (Oakland Education, supra, PERB Dec. No. 2906, at p. 30.)

To rebut that presumption, OEA had to prove that its strike “ ‘was provoked

by’ ” the District’s unfair practices and that it had negotiated “ ‘in good

faith.’ ” (Id. at p. 23.) Because PERB had already found that OEA had

negotiated in good faith (id., at pp. 21–22, 30), PERB concluded that OEA

rebutted the presumption by establishing that its strike was provoked by the

District’s actions. The District conceded that it had committed unfair

practices when it did not challenge PERB’s earlier decision holding that it

had violated EERA. (Oakland Education, at pp. 30–31.) And there was

15

ample evidence that those unfair practices provoked OEA’s strike. (Id. at pp.

31–33.)

Finally, PERB held that the ALJ did not err by excluding evidence of

educational harm caused by the strike. (Oakland Education, supra, PERB

Dec. No. 2906, at pp. 33, 36.)

Pursuant to section 3542, the District filed a petition for a writ of

extraordinary relief from PERB’s dismissal of its complaint (petition). We

determined that a summary denial of the petition was not warranted and

issued a writ of review.

DISCUSSION

The District contends that PERB clearly erred by upholding the

legality of OEA’s unfair practice strike and affirming the ALJ’s exclusion of

evidence of educational harm caused by the strike. We disagree with the first

contention but agree with the second. Nonetheless, we deny the District’s

petition because we find that the evidentiary error was harmless.

A.

Although “courts retain final authority to ‘ “state the true meaning of

[any] statute,” ’ ” they “ ‘generally defer to PERB’s construction of labor law

provisions within its jurisdiction’ ” like EERA. (Boling v. Public Employment

Relations Bd. (2018) 5 Cal.5th 898, 912, 911 (Boling).) This is because

“ ‘ “PERB is ‘one of those agencies presumably equipped or informed by

experience to deal with a specialized field of knowledge, whose findings

within that field carry the authority of an expertness which courts do not

possess and therefore must respect.” ’ ” (Id. at pp. 911–912.) We therefore

“ ‘follow PERB’s interpretation [of EERA] unless it is clearly erroneous.’ ” (Id.

at p. 912.) We also defer to PERB whenever it makes “legal determinations

even if based on undisputed facts” so long as “the matter falls within PERB’s

16

area of expertise.” (Id. at p. 913.) Finally, “[t]he findings of [PERB] with

respect to questions of fact, including ultimate facts, if supported by

substantial evidence on the record considered as a whole, are conclusive.”

(§ 3542, subd. (c).)

B.

Because of the deference accorded to PERB, we begin with an overview

of PERB’s decisions addressing strikes and the appellate cases that inform

those decisions.

Despite the enactment of EERA in 1975, the “legality of strikes by

public employees in California . . . remained an open question.” (County

Sanitation Dist. No. 2 v. Los Angeles County Employees’ Assn. (1985)

38 Cal.3d 564, 570 (County Sanitation).) In several cases in the early 1980s,

the California Supreme Court held that PERB had initial exclusive

jurisdiction to determine the legality of a strike under EERA without

determining whether public school employees actually had the right to strike.

(See, e.g., El Rancho Unified School Dist. v. Nat. Education Assn. (1983) 33

Cal.3d 946, 961 (El Rancho); San Diego Teachers, supra, 24 Cal.3d at p. 14;

Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136

Cal.App.3d 881, 894 (Modesto).)

Pursuant to this jurisdiction, PERB considered the legality of strikes

under EERA in a series of decisions in the early 1980s.8 In 1980, PERB held

8 Strikes under collective bargaining statutes like EERA may include

“ ‘unfair practice strikes,’ ” “ ‘economic strikes,’ ” and “ ‘sympathy strikes.’ ”

(Compton, supra, PERB Order No. IR-50, at p. 41, fn. 6.) An unfair practice

strike is a strike “in response to an employer’s unfair labor practices.” (Ibid.)

“An economic strike is a ‘cessation of work by employees to enforce economic

demands upon the employer . . . .’ ” (John Morrell & Co. v. Local Union 304A

(8th Cir. 1990) 913 F.2d 544, 548, fn. 4.) A sympathy strike “ordinarily refers

to a strike conducted by workers belonging to one bargaining unit in support

of a primary strike that is conducted by workers belonging to another

17

that “strikes are not unlawful per se under EERA” because they “comport[]

with the entire fabric of a collective negotiations statute that includes

impasse-breaking procedures.” (Fremont Unified Dist. Teachers’ Assn.,

CTA/NEA (1980) PERB Dec. No. 136, p. 23, vacated in part on other grounds

by Fremont Unified Dist. Teachers’ Assn., CTA/NEA (1982) PERB Dec. No.

136a.) “Since strikes occur whether or not they are lawful,” PERB explained

that “an absolute prohibition on strikes would negate the role . . . [it] is to

play in the ‘long range minimization of work stoppages.’ ” (Id. at p. 24.)

Two years later, PERB reaffirmed that “strikes are not unlawful per se

under EERA.” (Westminster School Dist. (1982) PERB Dec. No. 277, p. 14.)

Nonetheless, PERB held that a pre-impasse economic strike “intended to gain

concessions at the bargaining table,” rather than an unfair practice strike

“provoked by the District’s conduct,” violated EERA. (Westminster School

Dist., at pp. 16, 15; see Fresno Teachers Assn., CTA/NEA (1982) PERB Dec.

No. 208, p. 5 (Fresno Teachers).) “In the absence of employer provocation

which itself upsets the bargaining process,” PERB concluded that a union

“must be strictly held to its duty under EERA to press its demands at the

bargaining table and through the statutory impasse procedures.”

(Westminster School Dist., at p. 17.)

In 1983, PERB upheld the legality of an unfair practice strike under

EERA in Modesto Teachers Association, CTA/NEA (1983) PERB Dec. No. 291

(Modesto Teachers). As a threshold matter, PERB observed that “[t]here is no

language in EERA which explicitly proclaims strikes to be illegal” even

though the Legislature included such language in Labor Code section 1962—

bargaining unit at the same plant or shop.” (Children’s Hosp. Medical Center

v. California Nurses Assn. (9th Cir. 2002) 283 F.3d 1188, 1191.) Only unfair

practice strikes are at issue here.

18

which expressly prohibits firefighters from striking.9 (Modesto Teachers, at

pp. 59–60.) Despite this intentional omission by the Legislature, PERB

concluded that it “cannot hold that a work stoppage is protected unless there

is language in EERA which actually authorizes such a decision.” (Id. at p.

61.) PERB reached this conclusion because it believed that “pre-EERA

appellate court decisions stand for the proposition that strikes are illegal

unless authorized by statute.” (Id. at p. 59, underscoring omitted.)

PERB found that statutory authorization in section 3543—which gives

public school employees “the right, free from employer interference, ‘to form,

join, and participate in the activities of employee organizations of their own

choosing.’ ” (Modesto Teachers, supra, PERB Dec. No. 291, at p. 61.)

Although PERB acknowledged that Government Code section 3543 did not

include the concerted activities language found in Section 7 and Labor Code

section 923, it explained that Government Code section 3543, subdivision (a)

“uses plainer and more universally understood language to clearly and

directly authorize employee participation in collective actions traditionally

related to the bargaining process,” such as “work stoppages.” (Modesto

Teachers, at p. 62.)

PERB then observed that “while not all strikes are violative of EERA, a

strike prior to the completion of impasse ‘create[s] something similar to a

rebuttable presumption’ of an unlawful refusal to negotiate and/or participate

in impasse. The presumption of illegality is rebuttable, however, by proof

that the strike was provoked by employer conduct and that, further, the

employee organization in fact negotiated and participated in impasse in good

9 Labor Code section 1962 states in relevant part: “Employees . . . shall

not have the right to strike, or to recognize a picket line of a labor

organization while in the course of the performance of their official duties.”

19

faith. Absent such evidence, the presumption stands, and a violation is

established.” (Modesto Teachers, supra, PERB Dec. No. 291, at pp. 62–63.)

Concluding that the strike at issue “was provoked by the District, and that

the [union] had participated in the collective bargaining process in good

faith,” PERB held “that the strike . . . was not in violation of EERA but was

protected conduct.” (Id. at p. 65.)

Two years later, the California Supreme Court removed the

impediment to public employee strikes created by the “pre-EERA appellate

court decisions” referenced in Modesto Teachers, supra, PERB Dec. No. 291,

at page 59. In County Sanitation, the high court acknowledged that “the

Court of Appeal and various lower courts in this and other jurisdictions have

repeatedly stated that, absent a specific statutory grant, all strikes by public

employees are per se illegal.”10 (County Sanitation, supra, 38 Cal.3d at p.

573.) Despite this, it observed that, under its own precedents, “the legality of

strikes by public employees in California has remained an open question.”

(Id. at p. 570.)

Our Supreme Court then observed that “the Legislature has . . . chosen

to reserve judgment on the general legality of strikes in the public sector.”

10 Although only three justices signed onto the plurality opinion (see

County Sanitation, supra, 38 Cal.3d at p. 592 (plur. opn. of Broussard, J.)

[Mosk, J. and Grodin, J.]), Chief Justice Bird appeared to concur fully in the

reasoning of that opinion (see id. at p. 609 (conc. opn. of C. J. Bird) [“today’s

holding is compelled . . . by common law principles” (italics added)]). She only

wrote separately “to give the Legislature some guidance in an area filled with

constitutional problems” (id. at p. 593) because she believed that public

employees had a constitutional right to strike (id. at p. 594). Since four

justices agreed with the reasoning of the plurality opinion, we treat that

opinion as the holding of our high court. In doing so, we note that our high

court cited the plurality opinion in County Sanitation with approval in 2010.

(See San Jose, supra, 49 Cal.4th at pp. 705–706.)

20

(County Sanitation, supra, 38 Cal.3d at p. 571.) Although “the MMBA

establishes a system of rights and protections for public employees which

closely mirrors those enjoyed by workers in the private sector,” the

Legislature “intentionally avoided the inclusion of any provision which could

be construed as either a blanket grant or prohibition of a right to strike.” (Id.

at p. 573.) “In the absence of clear legislative directive on this crucial

matter,” the high court found itself forced “to determine whether, under the

[common] law, strikes by public employees should be viewed as a prohibited

tort.” (Ibid.)

Answering this question in the negative, our Supreme Court

“conclude[d] that the common law prohibition against public sector strikes

should not be recognized in this state.” (County Sanitation, supra, 38 Cal.3d

at p. 585.) Instead, “strikes by public employees are not unlawful at common

law unless or until it is clearly demonstrated that such a strike creates a

substantial and imminent threat to the health or safety of the public.” (Id. at

p. 586.) Without legislative guidance, courts must “determine on a case-by-

case basis whether the public interest overrides the basic right to strike.”

(Ibid.)

Despite County Sanitation and earlier PERB decisions allowing strikes

under EERA, a split PERB decision in 1987 cast doubt on the scope of the

right to strike, if any, under EERA. In Compton, a majority of PERB’s

commissioners found “ ‘just and proper’ ” cause to “seek [the] enjoinment” of a

post-impasse strike under EERA. (Compton, supra, PERB Order No. IR-50,

at p. 9.)

In the lead opinion, Commissioner Porter held that “EERA does not

grant to public school employees the right to strike for the purpose of

collective bargaining or other mutual aid or protection . . . .” (Compton,

21

supra, PERB Order No. IR-50, at p. 9, underscoring omitted.) After

reviewing the history of California’s collective bargaining statutes and case

law, he found dispositive EERA’s failure to include the concerted activities

language found in Section 7 and Labor Code section 923. (Compton, at pp.

65, 87–88.) According to the commissioner, the Legislature, by intentionally

omitting that language, “withheld and did not grant to public school

employees . . . the right to strike.” (Id. at p. 87, underscoring omitted.) The

commissioner also found that Government Code section 3549, which rendered

Labor Code section 923 inapplicable, “reinforced” this conclusion. (Compton,

at pp. 89–90.)

Commissioner Porter further concluded that recognizing a right to

strike “would bring EERA into direct conflict with the California Constitution

and the Education Code.” (Compton, supra, PERB Order No. IR-50, at p. 90.)

According to the commissioner, “if public school employees may lawfully

engage in a work stoppage for one day, they may lawfully extend it to one

week; and, if a week, then a month; and, if a month, then two months; and so

on. . . . [S]uch interference and disruption in the operation of the public

schools directly contravenes the constitutional and statutory mandates

concerning the operation of the schools and the constitutional rights of the

children.” (Id. at p. 91.)

Commissioner Porter then overruled Modesto Teachers and PERB’s

other decisions recognizing a right to strike under EERA. (Compton, supra,

PERB Order No. IR-50, at pp. 94–97, 102, 122.) He also questioned the

reasoning of County Sanitation: “[W]hile County Sanitation is applicable and

controlling as to public employee strikes no longer being tortious under

California common law . . . , the assumption of the plurality opinion as to the

Legislature’s intent and silence with respect to public employee strikes, as

22

well as its reasoning concerning MMBA [former] section 3509[,] is

unpersuasive.” (Compton, at p. 122, underscoring omitted.) Regardless, he

reasoned that County Sanitation “does not alter our determination that

public school employees do not have a right to strike under EERA” (Compton,

at p. 46), because our high court “did not address” that issue (id. at p. 149,

underscoring omitted). Finally, he concluded that all strikes are unfair

practices under EERA (Compton, at pp. 123, 131, 141, 152–153) and that

“work stoppages that interfere with or disrupt the operation of the public

schools so as to affect the continuity and quality of educational services

present just and proper cause for their enjoinment” (id. at p. 159).

Although Commissioner Hesse joined the lead opinion in authorizing

injunctive relief (Compton, supra, PERB Order No. IR-50, at p. 170), she did

not appear to agree that all strikes are unlawful under EERA. Instead, she

only agreed that Modesto Teachers should be overruled to the extent that it

held that EERA authorizes strikes. (Compton, at p. 164, fn. 3.) But because

EERA did not “expressly . . . prohibit strikes,” she concluded that “[t]he sole

issue before the Board in any strike case is whether the facts of that strike

can lead to a finding that the strike is an unlawful activity under EERA.”

(Compton, at p. 164, fn. 3, italics added). Finding that the strikes at issue

were economic strikes, and not unfair practice strikes (id. at p. 169, fn. 8),

Commissioner Hesse concluded that they violated EERA by causing “a total

breakdown of two discrete activities that are guaranteed by statute and case

law: (1) basic education for students and (2) negotiations free from coercive

tactics that hold hostage that education.” (Compton, at p. 167.) According to

the commissioner, the schools had already “lost at a minimum [of] 16

instructional days” and faced “an unknown number of additional days of

educational idleness.” (Id. at p. 170.) Thus, “a cease and desist order that

23

comes one, two, or, three years after a strike cannot make up for the

disruption and lost educational opportunities suffered by the students at the

time of the strike.” (Ibid.) Commissioner Hesse therefore agreed that

injunctive relief was warranted. (Ibid.)

Commissioner Craib dissented. He found Modesto Teachers

“persuasive” (Compton, supra, PERB Order No. IR-50, at p. 173), including

its holding that “some strikes are protected under EERA” (id. at p. 174).

Nonetheless, he agreed that the strikes at issue, “due to their intermittent

nature,” were “unprotected” by EERA. (Compton, at p. 174, italics added.)

He did not, however, agree that they violated EERA. (Compton, at p. 175.)

Because the strikes did not violate EERA, he concluded that PERB “has no

jurisdiction to seek injunctive relief.” (Compton, at p. 179.) Instead, the

school district must “go directly to court to seek relief on some basis other

than EERA.” (Ibid.) It was also “free to take disciplinary action against the

strikers (consistent with other laws).” (Ibid.)

Despite the uncertainty created by its split decision in Compton, PERB

continued to use the rebuttable presumption framework articulated in

Modesto Teachers to determine whether an unfair practice strike violated

EERA. (See, e.g., United Teachers-Los Angeles (1990) PERB Dec. No. 803,

pp. 2–3 [applying the Modesto Teachers framework]; Santa Maria High

School Dist. Faculty Assn., CTA/NEA (1989) PERB Order No. IR-53, pp. 3–4

[same]; see also Vallejo Education Assn., CTA/NEA (1993) PERB Dec.

No. 1015, p. 2 [affirming dismissal of unfair practice charge alleging an

unlawful strike despite Compton].) In these cases, PERB did not mention,

much less resolve, the split in Compton. (See United Teachers-Los Angeles, at

pp. 2–3; Santa Maria High School Dist. Faculty Assn., at pp. 3–4; see also

Vallejo Education Assn., at p. 2.)

24

Instead, PERB did not acknowledge the uncertainty created by

Compton until 2003, when it observed that it was “unclear . . . how much of

the plurality’s analysis the concurrence [in Compton] joined, beyond its

rejection of the finding in [Modesto Teachers] that EERA confers a statutory

right to strike.” (San Marcos Unified School Dist. (2003) PERB Dec. No.

1508, p. 25 (San Marcos).) Despite acknowledging this uncertainty, PERB

did not address the legality of strikes under EERA because San Marcos

involved “non-disruptive informational picketing.” (San Marcos, at p. 26.)

Similarly, in 2004, PERB asserted without explanation that “the right to

strike is limited” by Compton. (San Joaquin County Correctional Officers

Assn. (2004) PERB Dec. No. 1703-M, p. 5, fn. 4, italics added.)

PERB finally confronted this uncertainty by distinguishing Compton in

2010. 11 In Regents of the University of California (2010) PERB Dec. No.

2094-H (Regents), PERB held that the threat of an unfair practice strike did

not violate the Higher Education Employer-Employee Relations Act

(HEERA). (Regents, at p. 5.) In reaching this holding, PERB did not overrule

Compton or acknowledge the conflict between Compton and Modesto

Teachers. (Fresno County, supra, PERB Dec. No. 2418-M, at pp. 31–32.)

Instead, PERB found that Compton did not control because it “ ‘did not

overrule prior PERB decisions recognizing the legality . . . of unfair practice

strikes.’ ”12 (Fresno County, at p. 33, italics added.)

11 In 2006, PERB declined to consider a request to overrule Compton

and find “a right to strike” because it was not sufficiently alleged in the

unfair practice charge. (Santee Elementary School Dist. (2006) PERB Dec.

No. 1822, pp. 14–15.)

12 Applying the Modesto Teachers rebuttable presumption framework,

PERB held that pre-impasse strike threats and preparations violated

HEERA because the union “failed to prove that” the public employer

25

PERB then eliminated any remaining uncertainty created by Compton,

including its apparent conflict with Modesto Teachers, in 2015. In Fresno

County, PERB overruled Compton “to the extent it holds that there is no

statutorily-protected right to strike in protest against an employer’s unfair

practices.” (Fresno County, supra, PERB Dec. No. 2418-M, at p. 33.)

Reaffirming Modesto Teachers and its rebuttable presumption framework,

PERB held that the “right to form, join and participate in the activities of

employee organization encompasses the qualified right to strike . . .,

including the right to strike in protest against unfair practices.” (Fresno

County, at p. 33.) Thus, “strikes by public employees are statutorily

protected, except as limited by other provisions of . . . public-sector labor

relations statutes and controlling precedent.” (Ibid.) Since Fresno County,

PERB has reaffirmed that public employees have a qualified right to strike.

(See, e.g., City and County of San Francisco (2023) PERB Dec. No. 2867-M,

p. 25.)

C.

The District contends that all unfair practice strikes are illegal under

EERA notwithstanding PERB’s decisions to the contrary. The District

further contends that OEA’s strike violated several constitutional rights,

including the rights to education, due process, and equal protection. We

disagree. Based on our review of EERA and controlling case law, we find

that PERB’s conclusion that unfair practice strikes are allowed under EERA

is not clearly erroneous. We therefore defer to that conclusion. (Boling,

supra, 5 Cal.5th at p. 912.)

“committed any unfair practices.” (Regents, supra, PERB Dec. No. 2094-H, at

p. 33.)

26

1.

According to the District, nothing in EERA authorizes an unfair

practice strike. Thus, PERB clearly erred by manufacturing a right to engage

in such strikes out of whole cloth. 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.

Forty years ago, the California Supreme Court held that “strikes by

public sector employees in this state . . . are neither illegal nor tortious under

California common law” “unless it has been determined that the work

stoppage poses an imminent threat to public health or safety.” (County

Sanitation, supra, 38 Cal.3d at pp. 585, 592.) In 2010, our high court

reaffirmed this holding, reiterating that “[p]ublic employees have a right to

strike unless it is clearly shown that there is a substantial and imminent

threat to public health and safety.” (San Jose, supra, 49 Cal.4th at p. 606.)

The public employees referenced in these two cases ostensibly include public

school employees.

Nonetheless, the District contends that County Sanitation and San

Jose do not apply here because they involved the MMBA, and not EERA. But

neither case relied on the MMBA to find a common law right to strike. (See

County Sanitation, supra, 38 Cal.3d at p. 573; San Jose, supra, 49 Cal.4th at

pp. 605–607.) Moreover, both cases relied on the similarities between EERA

and the MMBA to hold that interpretations of EERA apply to the MMBA.

(See, e.g., County Sanitation, at p. 573 [construing former “section 3509 of the

27

MMBA” the same as “section 3549 of the EERA”]; San Jose, at p. 607

[applying EERA decisions to the MMBA]); see Redwoods, supra, 159

Cal.App.3d at p. 621 [EERA “closely tracks” the MMBA].) Under that same

reasoning, interpretations of the MMBA must also apply to EERA. Indeed,

the District identifies no differences between EERA and the MMBA that

would render those cases inapplicable here.

Likewise, the failure of County Sanitation and San Jose to mention the

constitutional right to education does not, as the District contends, lessen

their relevance here. Both cases, in finding that public employees have a

qualified right to strike, considered whether those employees performed

“services essential to the public welfare.” (San Jose, supra, 49 Cal.4th at p.

608, italics added; see County Sanitation, supra, 38 Cal.3d at p. 586

[considering “essential areas of public employment (e.g., the prohibition

against firefighters and law enforcement personnel)”].) Thus, the reasoning

of our high court in both cases encompasses the educational services at issue

here. In any event, as we explain later, the District cannot establish that all

unfair practice strikes, much less OEA’s one-day strike, violate the

constitutional right to education. (See, post, at pp. 37–39, 53–54.)

Thus, public 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. (See San Jose, supra, 49 Cal.4th at

p. 607 [County Sanitation established “the right of public employees to

strike”].) 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. (See Vernon Fire

Fighters Assn. v. City of Vernon (1986) 178 Cal.App.3d 710, 721 [“in the

absence of some statutory prohibition, public employees have a right to

28

strike”].) 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. As explained below,

EERA does not.13

In determining whether EERA deprives public school employees of

their common law right to engage in unfair practice strikes, we follow our

well-established canons of statutory construction. “ ‘ “ ‘[I]n construing a

statute, a court [must] ascertain the intent of the Legislature so as to

effectuate the purpose of the law.’ [Citation.] In determining that intent, we

first examine the words of the respective statutes: ‘If there is no ambiguity in

the language of the statute, “then the Legislature is presumed to have meant

what it said, and the plain meaning of the language governs.” [Citation.]’ ” ’ ”

(T.M. v. Superior Court (2024) 104 Cal.App.5th 664, 681 (T.M.).) But if that

language is ambiguous, then “courts may resort to extrinsic sources,

including the ostensible objects to be achieved and the legislative history.”

(People v. Coronado (1995) 12 Cal.4th 145, 151.) “Courts may also

‘ “ ‘ “examine the context in which the [statutory] language appears, adopting

the construction that best harmonizes the statute . . . with related

statutes” ’ ” ’ [citation], as well as consider ‘ “ ‘ “public policy” ’ ” ’ [citation].

The end goal is to ‘ “ ‘ “select the construction that comports most closely with

the apparent intent of the Legislature, with a view to promoting rather than

defeating the general purpose of the statute . . . .” ’ ” ’ ” (T.M., at p. 681.)

13 Our conclusion that public school employees retain their common law

right to engage in unfair practice strikes under EERA does not deprive PERB

of initial exclusive jurisdiction over strikes by those employees because their

strikes are still “ ‘arguably . . . prohibited’ ” as an unfair practice under

EERA. (San Jose, supra, 49 Cal.4th at p. 606.)

29

Here, nothing in EERA expressly prohibits public school employees

from engaging in unfair practice strikes. This alone provides a compelling

reason to defer to PERB’s conclusion that EERA allows them. (See San Diego

Housing Com. v Public Employment Relations Bd. (2016) 246 Cal.App.4th 1,

12 [“the most compelling reason” to defer to PERB’s interpretation of “the

Act’s factfinding provisions” is the absence of any “language in the Act

expressly limiting the factfinding provisions to particular types of

impasses”].) Indeed, the Legislature has included language expressly

prohibiting strikes in collective bargaining statutes governing firefighters

(Lab. Code, § 1962) but did not do the same in EERA. This omission strongly

suggests that the Legislature did not intend to ban all strikes, much less all

unfair practice strikes, by public school employees.14 (See People v. Sinohui

(2002) 28 Cal.4th 205, 213 [where the Legislature “knew how to include . . . a

requirement but declined to do so,” we are “confident [it] did not intend to”

impose that requirement].)

Although the California Supreme Court has never determined whether

unfair practice strikes are allowed under EERA, it too strongly suggests that

they are. For example, our high court, in holding “that EERA divests the

superior courts of jurisdiction to entertain a school district’s complaint for

damages arising out of a teachers’ strike,” concluded that an unfair practice

strike “may constitute ‘arguably protected’ activity.” (El Rancho, supra, 33

14 In Modesto Teachers, PERB held that the absence of language in

EERA expressly prohibiting strikes was not sufficient to establish a right to

strike. (Modesto Teachers, supra, PERB Dec. No. 291, at p. 61.) But that

holding was premised on Court of Appeal decisions suggesting that public

employees had no right to strike absent a statutory authorization to do so.

(Id. at p. 53.) Two years after Modesto Teachers, our Supreme Court

dispelled this underlying premise when it held that public employees have a

common law right to strike. (County Sanitation, supra, 38 Cal.3d at p. 585.)

30

Cal.3d at p. 961, 959.) The court explained that its decision in San Diego

Teachers “substantial[ly] support[ed]” this conclusion as did a Michigan

Supreme Court case—which held that unfair practice strikes are allowed

under “that state’s Public Employment Relations Act . . . .” (El Rancho, at p.

958.) More recently, our high court reaffirmed that “[p]ublic employees have

a right to strike” (San Jose, supra, 49 Cal.4th at p. 606) due in part to

EERA’s silence on the legality of such strikes (San Jose, at p. 604).

Our Supreme Court’s reasoning in County Sanitation, when taken to

its logical conclusion, also establishes that a determination regarding the

legality of unfair practice strikes under EERA is properly left to PERB. In

that case, our high court observed that the Legislature “intentionally avoided

the inclusion of any provision which could be construed as either a blanket

grant or prohibition of a right to strike, thus leaving the issue shrouded in

ambiguity.” (County Sanitation, supra, 38 Cal.3d at p. 573.) Because there

was no “clear legislative directive on this crucial matter,” the high court

concluded that “the Legislature has . . . chosen to reserve judgment on the

general legality of strikes in the public sector.” (Id. at pp. 573, 571.) As a

result, the Legislature left it to the judiciary, as part of its effort “to shape the

common law” (Arthur Andersen v. Superior Court (1998) 67 Cal.App.4th 1481,

1507), to determine whether those strikes are prohibited under the common

law (County Sanitation, at p. 573). By parity of reasoning, in the absence of

clear legislative directive on strikes in EERA, the Legislature has left it to

PERB—the agency created by the Legislature to administer that law (San

Mateo, supra, 33 Cal.3d at p. 856; §§ 3541, 3541.3)—to determine whether

strikes are prohibited by EERA. Indeed, “the legality of a public employee

strike” is “an issue that goes to the essence of labor law” (San Jose, supra, 49

Cal.4th at p. 608)—the very subject matter in which PERB has

31

“ ‘ “legislatively designated . . . expertise” ’ ” (Boling, supra, 5 Cal.5th at p.

912).

Thus, both the language of EERA and controlling case law strongly

suggest that EERA does not prohibit all unfair practice strikes. Even if these

suggestions are not conclusive, they, at a minimum, establish that PERB did

not clearly err when it concluded that such strikes are allowed under EERA.

(See Boling, supra, 5 Cal.5th at p. 912.)

Nevertheless, the District argues that PERB did clearly err because

EERA does not include the concerted activities language found in Section 7—

which gives employees the “right . . . to engage in other concerted activities

for the purpose of collective bargaining or other mutual aid or protection.”

(Compare 29 U.S.C. § 157 with § 3543, subd. (a).) According to the District,

this omission means that EERA must prohibit unfair practice strikes. We

agree that the concerted activities language confers a broad right to strike,

including the right to engage in unfair practice strikes. (See G.C. Breidert,

supra, 139 Cal.App.2d at pp. 638–639.) We also agree that the omission of

that language from EERA appears intentional because the Legislature used

it in other laws governing public employees.15 But we do not agree that this

omission establishes a legislative intent to prohibit all unfair practice strikes

by public school employees.

This is because the language of section 3543, subdivision (a)—which

gives public school employees the “right to form, join, and participate in the

activities of employee organizations of their own choosing for the purpose of

15 (See, e.g., Public Utilities Code, §§ 30755 [Southern California Rapid

Transit Dist.], 99563 [Los Angeles County Metropolitan Transportation

Auth.], 100300 [Santa Clara Valley Transportation Auth.], 101340 [Golden

Empire Transit Dist.], 103400 [San Mateo County Transit Dist.], 125520

[North County Transit Dist.].)

32

representation on all matters of employer-employee relations”—appears to be

broader than the concerted activities language. Not only did PERB reach

this conclusion (Modesto Teachers, supra, PERB Dec. No. 291, at pp. 61–62;

Fresno County, supra, PERB Dec. No. 2418-M, at p. 32), so did a Court of

Appeal: “On its face the EERA language [in Government Code section 3543]

. . . is considerably broader than that of . . . [S]ection 7” (Redwoods, supra,

159 Cal.App.3d at p. 623, italics added). Because “the right to strike is so

inextricably intertwined with the . . . right to organize and collectively

bargain” expressly granted by section 3543 (County Sanitation, supra, 38

Cal.3d at p. 589), we question whether PERB could have clearly erred when

it held, consistent with federal NLRA precedent, that section 3543 authorizes

unfair practice strikes (see County of San Joaquin v Public Employment

Relations Bd. (2022) 82 Cal.App.5th 1053, 1069 (San Joaquin) [“it is proper

to look to federal [NLRA] authority for [their] persuasive value”]).

We, however, need not answer this question in order to find that the

omission of the concerted activities language does not establish a legislative

intent to prohibit unfair practice strikes. That language gives employees the

“right . . . to engage in . . . concerted activities” for two purposes:

(1) “collective bargaining” or (2) “other mutual aid or protection.” (29 U.S.C.

§ 157.) We are unable to conceive of any “concerted activities for the purpose

of collective bargaining” (ibid., italics added) that do not constitute “activities

. . . for the purpose of representation on all matters of employer-employee

relations” under section 3543, subdivision (a). (Italics added.) Nor has the

District or any amicus curiae identified any. Thus, the only potentially

material difference between Section 7 and Government Code section 3543,

subdivision (a) is the failure of that subdivision to mention “concerted

activities for the purpose of . . . other mutual aid or protection.” (29 U.S.C. §

33

157.) That omitted language does not, however, encompass unfair practice

strikes—which are not conducted for “mutual aid or protection.”16 (Ibid.) As

a result, the linguistic differences between Section 7 and Government Code

section 3543, subdivision (a) cannot support a prohibition on unfair practice

strikes.

Citing statutes from other states that include the language of section

3543, subdivision (a) and either the concerted activities language or language

expressly prohibiting or authorizing strikes, the District counters that the

language in subdivision (a) “is only an initial grant of basic union rights” that

does not include the right to strike. But statutory language must be

construed in context. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th

183, 192–193.) Thus, the District’s argument that the relevant language of

subdivision (a) has the same meaning in section 3543 as it does in statutes

where the statutory scheme expressly addresses either concerted activities or

strikes is a non sequitur. In any event, the pertinent question is not whether

EERA authorizes strikes but whether it prohibits them. As explained above,

it does not. (See, ante, at pp. 29–34.) And even if the answer was less

conclusive, we still cannot find that PERB clearly erred in finding that EERA

allows unfair practice strikes.

Likewise, the District’s invocation of section 3549 is unavailing. That

statute—which states that EERA “shall not be construed as making the

provisions of Section 923 of the Labor Code applicable to public school

employees” (§ 3549)— “does not prohibit strikes” (San Diego Teachers, supra,

24 Cal.3d at p. 13). Rather, it “simply excludes the applicability of Labor

Code section 923’s protection of concerted activities.” (Ibid.) Our Supreme

16 In reaching this conclusion, we express no opinion as to the

significance, if any, of this omission or its meaning.

34

Court made this clear in 1979 (see ibid.) and again in 1985 (see County

Sanitation, supra 38 Cal.3d at p. 573 [like section 3549, former section 3509

cannot “be read as a legislative prohibition of public employee strikes”]).17

And for the past 40 years, our high court has never offered, much less

suggested, a contrary interpretation.

The District’s contention that PERB erred by ignoring the observation

in San Mateo that “[t]he language of . . . EERA defines a scope that appears

significantly more limited than that under the Winton Act” fares no better.

(San Mateo, supra, 33 Cal.3d at p. 861.) In making this observation, our high

court was simply comparing the scope of matters subject to bargaining under

EERA to the scope of matters subject to meet and confer under the Winton

Act. (See San Mateo, at p. 861.) It was not commenting on the scope of any

bargaining rights conferred by EERA. Indeed, the high court also observed in

San Mateo that “[e]mployees’ rights to bargain under EERA are significantly

stronger than the right to meet and confer established by the earlier Winton

Act.” (Id. at p. 862, italics added and omitted.)

EERA’s legislative history does not help the District either. Citing the

Aaron Report—which was issued in 1973 and proposed various statutes that

17 Contrary to the District’s assertion, the interpretations of section

3549 in San Diego Teachers and former section 3509 in County Sanitation are

not dicta. (See Appel v. Superior Court (2013) 214 Cal.App.4th 329, 340

[“statements of law . . . necessary to the decision” are not dicta].) Indeed,

both interpretations were necessary to our high court’s decision in both cases.

(See County Sanitation, supra, 38 Cal.3d at p. 573 [finding it necessary to

“determine whether . . . strikes by public employees should be viewed as a

prohibited tort” because former section 3509 did not prohibit them]; San

Diego Teachers, supra, 24 Cal.3d at p. 13 [rejecting argument because section

3549 does not prohibit strikes].) In any event, “Supreme Court dicta ‘is not to

be blithely ignored,’ and is typically followed by appellate courts.” (Dept. of

Fair Employment & Housing v. Cisco Systems, Inc. (2022) 82 Cal.App.5th 93,

103.)

35

would have given “ ‘public employees . . . [a limited] right to strike’ ” (County

Sanitation, supra, 38 Cal.3d at p. 571, fn. 12)—the District and amicus curiae

CSBA contend that the Legislature’s failure to adopt these proposed statutes

“supports the conclusion the EERA cannot be read to include a right to

strike.” But “[u]npassed bills, as evidences of legislative intent, have little

value.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43

Cal.3d 1379, 1396.) Indeed, “the failure of the Legislature to adopt proposed

amendments . . . could merely reflect a determination that such amendments

were unnecessary because the law already so provided.” (Eastburn v.

Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1184.)

Similarly, the statement about strikes in the analysis of EERA by staff

of the Senate Committee on Education does not compel a contrary conclusion.

By explaining that “[s]ection 923 of the Labor Code is expressly made

inapplicable to public school employees [through Government Code section

3549] thereby negating the right to strike” (Sen. Com. on Educ., Staff Analysis

of Sen. Bill No. 160 (1974–1975 Reg. Sess.) May 1975, p. 4, italics added), the

Committee likely meant that EERA did not incorporate the full scope of the

right to strike granted by that Labor Code section. (See San Joaquin, supra,

82 Cal.App.5th at p. 1074 [recognizing “limitations” on the right of public

employees to strike that do not exist “in private labor relationships”].) In any

event, our high court held long ago that section 3549 does not prohibit strikes

by public school employees. (County Sanitation, supra, 38 Cal.3d at p. 573;

San Diego Teachers, supra, 24 Cal.3d at p. 13.) We are still bound by that

holding today.

The District’s assertion that PERB has been inconsistent in its rulings

on the legality of unfair practice strikes under EERA also does not withstand

scrutiny. Only one PERB commissioner has ever held that such strikes are

36

prohibited by EERA. (See Compton, supra, PERB Order No. IR-50, at p. 87.)

And that holding in the lead opinion in Compton did not garner a majority

because the other two commissioners did not join it. Indeed, the lone

commissioner who concurred with the lead opinion did not address whether

unfair practice strikes are illegal under EERA because she found that EERA

does not prohibit strikes (Compton, at p. 164, fn. 3) and that the strikes at

issue were economic strikes (id. at p. 169, fn. 8). Thus, PERB has never held

that all unfair practice strikes are illegal under EERA. To the contrary,

PERB has regularly held that EERA allows unfair practice strikes even after

its decision in Compton. (See, ante, at pp. 17–26.)

Finally, by allowing unfair practice strikes, PERB does not contravene

the purpose of EERA. As our high court explained, banning strikes by public

employees does not necessarily “ ‘work to settle [labor] disputes or stop the

strikes, slowdowns, or threats.’ ” (County Sanitation, supra, 38 Cal.3d at p.

582.) Instead, they may “exacerbate[] these conflicts.” (Ibid.) Thus, PERB

“could reasonably conclude that recognizing public employees’ right to strike

may actually enhance labor-management relations.” (Id. at p. 581.)

Although the high court reached these conclusions 40 years ago, they are no

less binding on us today.

In short, neither the language, history, or purpose of EERA nor

controlling case law supports a prohibition on all unfair practice strikes. We

therefore defer to PERB’s many decisions allowing such strikes under EERA.

(See Boling, supra, 5 Cal.5th at p. 912 [must defer to PERB unless it is

“clearly erroneous”].)

2.

In what appears to be a facial challenge, the District and some amici

curiae contend that PERB, by allowing unfair practice strikes, violated the

37

right of students to a public education under the California Constitution.

(Cal. Const., art. IX, §§ 1 & 5; see Educ. Code, § 202, subd. (c) [“Education is a

fundamental right under the California Constitution”].) But even if the

District has standing to assert this constitutional right on behalf of its

students (compare Selinger v. City Council (1989) 216 Cal.App.3d 259, 271

[city has standing to assert its citizens’s constitutional rights to notice and a

hearing] with City of Galt v. Cohen (2017) 12 Cal.App.5th 367, 378 [city has

no standing to assert the constitutional rights of its bondholders]), it has not

established that an unfair practice strike always impairs that right (see In re

D.L. (2023) 93 Cal.App.5th 144, 157 [facial challenge requires that the state

action “ ‘ “ ‘inevitably pose a present total and fatal conflict with applicable

constitutional prohibitions’ ” ’ ”]). We therefore reject this constitutional

challenge.

We do so because the California Constitution only requires “basic

education equality” (Sanchez v. State of California (2009) 179 Cal.App.4th

467, 489) and “does not prohibit all disparities in educational quality of

service” (Butt v. State of California (1992) 4 Cal.4th 668, 686 (Butt)). For

example, it does not mandate “a particular standard of achievement” or “a

particular level of education expenditures” (Campaign for Quality Education

v. State of California (2016) 246 Cal.App.4th 896, 915) or “guarantee

uniformity of term length for its own sake” (Butt, at p. 686). Thus, “[e]ven

unplanned truncation of the intended school term will not necessarily

constitute a denial of ‘basic’ educational equality.” (Ibid.) “Unless the actual

quality of the [school] district’s program, viewed as a whole, falls

fundamentally below prevailing statewide standards, no constitutional

violation occurs.” (Id. at pp. 686–687.) Because a “finding of constitutional

disparity depends on the individual facts” (id. at p. 686), the District cannot

38

show that every unfair practice strike, however long, meets the standard for

a constitutional violation. PERB’s decisions allowing such strikes under

EERA do not therefore violate the right to education.

3.

Although it is less than clear, the District appears to contend that

PERB violated its procedural due process rights because OEA’s strike may

have caused the District to violate its federal obligations. Despite the opacity

of this contention, we understand enough to find that the District lacks

standing to raise it.

The District is a political subdivision subject to the control of the

Legislature. (West Contra Costa Unified School Dist. v. Superior Court (2024)

103 Cal.App.5th 1243, 1274 (West Contra Costa).) “This legislative control

. . . is reflected in the well-established rule that subordinate political entities,

as ‘creatures’ of the state, may not challenge state action as violating the

entities’ rights under the due process . . . clause of the federal Constitution”

(Star-Kist Foods, Inc. v. County of Los Angeles (1986) 42 Cal.3d 1, 6 (Star-

Kist), italics added) and the California Constitution (West Contra Costa, at p.

1274). Because “[p]olitical subdivisions cannot assert ‘constitutional rights

[like the right to due process] which are intended to limit governmental

action vis-a-vis individual citizens,’ ” the District has no standing to assert a

due process claim against PERB on its own behalf. (See Star-Kist, at p. 8.)

Despite this, the District argues that it has standing because its due

process claim is “analogous” to supremacy clause claims exempted from this

“no standing” rule by the California Supreme Court. In support, the District

relies on a single sentence in our decision in West Contra Costa. In that

sentence, we stated that a school district lacked standing to assert its due

process claims because those claims “are not analogous to the supremacy and

39

commerce clause claims exempted by [our high court in] Star-Kist.” (West

Contra Costa, supra, 103 Cal.App.5th at p. 1274, italics added.) According to

the District, that sentence means that it may assert due process claims

against PERB that are analogous to supremacy clause claims.

The District, however, takes our sentence in West Contra Costa out of

context and then reads too much into it. Just two sentences earlier, we

quoted Star-Kist for the proposition that “ ‘[p]olitical subdivisions cannot

assert “constitutional rights which are intended to limit governmental action

vis-a-vis individual citizens.” ’ ” (West Contra Costa, supra, 103 Cal.App.5th

at p. 1274.) And in support of the sentence invoked by the District, we cited

two cases holding that political subdivisions may not assert claims based on

constitutional provisions like the due process clause that protect individuals,

rather than governments and their powers. (See City of Grass Valley v.

Cohen (2017) 17 Cal.App.5th 567, 593; San Diego County Water Authority v.

Metropolitan Water Dist. of Southern California (2017) 12 Cal.App.5th 1124,

1162 (San Diego Water).) Because due process guarantees do not place a

“ ‘structural limit[] on government power in the Supremacy Clause sense’ ”

(San Diego Water, at p. 1162, fn. 24), due process claims, as we stated in West

Contra Costa, at page 1274, “are not analogous to the supremacy . . . clause

claims exempted by Star-Kist.” Accordingly, the District lacks standing to

assert its own due process claim here.18

4.

Citing data showing that roughly 90 percent of the students in the

District are “non-white,” that over 75 percent are “socioeconomically

disadvantaged,” and that over 15 percent have disabilities, the District

18 Because we reject the District’s due process claim on this ground, we

do not address OEA’s other arguments.

40

asserts that “PERB’s [d]ecision also creates a fundamental equal [protection]

violation.” Presumably, the District is asserting that PERB’s decision, by

allowing OEA’s unfair practice strike, had a disparate impact on minority,

socioeconomically disadvantaged, and disabled students because of the high

percentage of those students in the District. The District, however, ignores

the threshold question for any equal protection claim premised on a disparate

impact: Did PERB’s decision “cause” that disparate impact? (Vergara v.

State of California (2016) 246 Cal.App.4th 619, 648 (Vergara) [the “initial

question” in determining whether a disparate impact violates equal

protection is “[d]id the challenged statutes” cause the “disproportionate harm”

to minority students].) Because the answer to that question is no, the

District’s equal protection claim fails.

Indeed, the District presented no evidence that any PERB decision,

much less its decision in this case, caused any disparate harm to minority,

socioeconomically disadvantaged, or disabled students. Union members, not

PERB, vote to strike, and there is no evidence that PERB’s actions

precipitated a strike in any way. This is illustrated by the facts in this case.

OEA members, not PERB, voted to strike. PERB’s actions could not have

precipitated the strike because the District did not even file its unfair

practice charge with PERB until after OEA threatened to strike. OEA also

conducted the strike well before PERB rendered its decision upholding the

legality of the strike. Thus, PERB’s decision in this case could not have

caused the strike, much less any disparate impact resulting from that strike.

In any event, unfair practice strikes like OEA’s strike are likely to

occur even if PERB had held that EERA prohibited them. “[W]ithout the

right to strike, . . . public employees have little negotiating strength. This, in

turn, produces frustrations which . . . often provoke ‘illegal’ strikes.” (County

41

Sanitation, supra, 38 Cal.3d at p. 582, italics added.) This is confirmed by

the many public employee strikes that occurred in the past despite pre-

County Sanitation case law suggesting that those strikes were illegal. (See

id. at p. 581 [“46 strikes occurred during 1981-1983, which actually marks a

significant decline when compared to the number during the 5 previous

years”].) Our high court has also observed that barring strikes may not be

“the most effective means of minimizing the number of teaching days lost

from work stoppages.” (San Diego Teachers, supra, 24 Cal.3d at p. 11.)

Because there is no evidence that PERB’s decisions, as opposed to OEA’s

frustrations over the District’s school closures, caused the strike, there can be

no equal protection violation.19 (See Vergara, supra, 246 Cal.App.4th at p.

651 [no equal protection violation because any “constitutional infringement is

the product of staffing decisions, not the challenged statutes”].)

D.

Even if unfair practice strikes are allowed under EERA, the District

and amicus curiae CSBA contend that PERB clearly erred by allowing OEA

to strike before it had exhausted certain administrative remedies. For

example, the District contends that unfair practice strikes should not be

allowed before PERB has determined that the public school employer has, in

fact, committed an unfair practice. The District and CSBA also contend that

EERA, by establishing rigorous impasse procedures, prohibits pre-impasse

unfair practice strikes. We disagree with both contentions and find that

PERB did not clearly err by allowing pre-impasse unfair practice strikes

before it has fully adjudicated the underlying unfair practice charge.

19 It does not matter whether the District is asserting a facial or an as

applied challenge because both challenges must be rejected for the reasons

stated. We therefore need not address any other arguments raised by OEA.

42

1.

In arguing that EERA prohibits unfair practice strikes before PERB

has adjudicated the underlying unfair practice charge, the District cites no

provision in EERA that actually states this. This is not surprising. EERA is

“silent on [the] subject” of the right to strike. (San Jose, supra, 49 Cal.4th at

p. 604.) Instead, the District claims that EERA’s authorization of “PERB to

adjudicate unfair practice charges” evidences a legislative intent to limit

unfair practice strikes in this manner. But the District identifies no

language in EERA that supports this claim. This is presumably because

EERA gives PERB broad discretion to handle unfair practice charges

however it sees fit. For example, section 3541.3, subdivision (i) gives PERB

the power to “take any action and make any determinations in respect of

[unfair practice] charges . . . as the board deems necessary to effectuate the

policies of this chapter.” (Italics added.) This includes the power to “devise[]

and promulgate[]” almost any “[p]rocedures for investigating, hearing, and

deciding” those charges.20 (§ 3541.5.) In light of PERB’s broad discretion

over unfair practice charges, we cannot conclude that PERB clearly erred by

upholding the legality of unfair practice strikes conducted before its

adjudication of the underlying charge. (Boling, supra, 19 Cal.5th at p. 912.)

Decisions by the National Labor Relations Board (NLRB) interpreting

the NLRA reinforce this conclusion. As the District acknowledges, these

decisions have long established that unions may strike in response to an

employer’s unfair labor practice (ULP) before their underlying ULP charge

has been adjudicated.21 Because EERA “is similar in many ways to the

20 The few statutory limits placed on this power are not relevant here.

(See § 3541.5, subds. (a)–(b).)

21 The District and PERB both cite the following NLRB decisions for

this proposition: Golden Stevedoring Co. (2001) 335 NLRB 410, 411; RGC

43

NLRA” (McPherson v. Public Employment Relations Bd. (1987) 189

Cal.App.3d 293, 305 (McPherson)), “it is proper to look to” these NLRB

decisions “for [their] persuasive value” (San Joaquin, supra, 82 Cal.App.5th

at p. 1069). Indeed, PERB must provide “justifications peculiar to the

educational employment sphere to support” any departure from those federal

decisions. (McPherson, at p. 311.)

According to the District, PERB clearly erred in failing to find a

justification for departing from those NLRB decisions based on the linguistic

differences between EERA and the NLRA. But California courts often do not

find those differences “dispositive” (Redwoods, supra, 159 Cal.App.3d at

p. 624) and have regularly required PERB to follow NLRA precedent “despite

differences in statutory language” (McPherson, supra, 189 Cal.App.3d at p.

311). Where, as here, the linguistic differences between EERA and the NLRA

have no apparent bearing on the legality of unfair practice strikes (see, ante,

at pp. 32–34), we cannot conclude that PERB clearly erred.

The District also contends that the educational harm caused by unfair

practice strikes justifies a departure from NLRA precedent. But the District

ignores other policy considerations that support PERB’s decision to follow

that precedent here. The purpose of EERA is “to promote the improvement of

personnel management and employer-employee relations within the public

school systems in the State of California.” (§ 3540.) Unfair practice strikes

arguably advance this purpose because they give public school employees,

who would otherwise have “little [bargaining] strength,” an outlet for

“frustrations” that may “exacerbate” conflicts with their employers. (County

Sanitation, supra, 38 Cal.3d at p. 582.) Forcing those employees to wait to

(USA) Mineral Sands, Inc. (2001) 332 NLRB 1633, 1633; and Dorsey Trailers,

Inc. (1999) 327 NLRB 835, 855.

44

respond to unfair practices, “ ‘in some instances, years before a final

disposition by [PERB] is rendered,’ ” may send a “ ‘clear message’ ” that

PERB cannot provide meaningful relief. (Modesto, supra, 136 Cal.App.3d at

p. 903.) Where, as here, the employer violated its statutory duty to bargain

in good faith—thereby, relieving its employees of “any duty to bargain”

(Oakland Education, supra, PERB Dec. No. 2906, at p. 21)—that lengthy

delay before a final disposition could make both employers and employees

less likely to comply with their obligations under EERA. This would, in turn,

frustrate the purpose behind EERA. (See Modesto, at p. 903 [forcing public

school employees to wait for meaningful relief from PERB creates “a

significant possibility the Act’s remedial purposes would be frustrated”].)

In deciding whether PERB properly looked to NLRA precedent for

guidance here, we need not weigh these competing policy considerations.

(See San Mateo, supra, 33 Cal.3d at p. 863 [“Particularly in the field of

education a strong public policy renders the welfare of those receiving the

service a primary consideration”].) Indeed, we are not experts in educational

labor relations. But PERB is. And PERB “ ‘bring[s] expertise and uniformity

to the delicate task of stabilizing labor relations.’ ” (San Joaquin, supra, 82

Cal.App.5th at p. 1074.) This is why we “need to defer to the expertise of

PERB so it can perform its mandated duty to effectuate and implement the

purposes” of EERA. (Modesto, supra, 136 Cal.App.3d at p. 894.) Because the

weighing of any competing policy considerations is properly left to PERB, we

do not find that PERB clearly erred by allowing unfair practice strikes under

EERA before it has determined that the employer committed an unfair

practice.

In making this finding, we note that PERB already has the power to

prevent any harm caused by an unfair practice strike before it adjudicates

45

the underlying unfair practice charge. Specifically, PERB “ ‘may petition the

court for appropriate temporary relief or restraining order’ ” enjoining any

strike. (Modesto, supra, 136 Cal.App.3d at p. 895, quoting § 3541.3, subd. (j).)

To obtain that injunctive relief, PERB only has to establish that there is

“reasonable cause to believe an unfair practice ha[s] been committed” and

that the relief sought is “just and proper.” (Ibid.) In determining whether

reasonable cause exists, PERB need not find that “an unfair labor practice

has in fact been committed.” (Id. at p. 902.) Instead, “the key question is . . .

whether PERB’s theory . . . is insubstantial or frivolous.” (Id. at p. 897.) And

in determining whether injunctive relief is just and proper, PERB may

consider any “pertinent” fact, including the harms caused by the strike. (Id.

at p. 903.) Because PERB has the power to prevent any harm caused by a

strike before finding an unfair practice, we cannot conclude that PERB

clearly erred by allowing unfair practice strikes before adjudicating the

underlying charge.

The District discounts PERB’s ability to seek injunctive relief because

“PERB has repeatedly refused to enjoin teacher strikes for decades.”

According to the District, PERB’s standard for injunctive relief “is flawed.”

Even if this is so, it merely suggests that this standard should be changed—

an issue not before us today. It does not establish that PERB erred by

allowing unfair practice strikes before it has determined whether an unfair

practice has, in fact, been committed.

Nonetheless, we share the District’s concern that PERB’s use of an

erroneous standard for injunctive relief or its misapplication of that standard

may go unchecked because its refusal to seek such relief may not be subject to

review by either PERB or the courts. But based on the representations of the

parties at oral argument, it does not appear that the reviewability of that

46

refusal has ever been decided by PERB or a court.22 Our own review of the

relevant case law suggests that this is so. In any event, we need not consider

that issue here because the District did not challenge PERB’s refusal to seek

injunctive relief in its petition.

Finally, we reject the District’s claim that allowing unfair practice

strikes before adjudication of the underlying charge violates the due process

rights of its students. Assuming that the District has standing to assert

these rights (see, ante, at p. 38), it provides no “reasoned argument and legal

authorities” to support this due process claim. (People v. Sorden (2021) 65

Cal.App.5th 582, 603 [“failure to present reasoned argument and legal

authorities in support” of a claim of error forfeits that claim on appeal].) To

the extent that the due process claim is premised on a deprivation of the

constitutional right to education, we have already rejected that premise.

(See, ante, at pp. 37–39.) In any event, we do not see how the mere existence

of educational harm creates a due process right to a final adjudication of the

unfair practice charge before an unfair practice strike may occur. We also do

not see why the availability of injunctive relief is insufficient to alleviate any

procedural due process concerns. We therefore conclude that PERB did not

clearly err in allowing unfair practice strikes before adjudication of the

underlying charges.

22 At oral argument, OEA’s counsel argued that PERB’s refusal to seek

injunctive relief may be judicially reviewed through a writ petition under

section 3509.5 and presumably section 3549. PERB’s counsel, on the other

hand, stated that he was not aware of any fully adjudicated challenges to

such a refusal but suggested, without conceding, that PERB may be able to

address such a challenge when it resolves the underlying unfair practice

charge or that a court may address it through a claim for declaratory relief.

Finally, the District’s counsel questioned whether PERB’s refusal to seek

injunctive relief was reviewable because he had never seen it done before.

47

2.

Citing differences between the impasse procedures in EERA and the

MMBA, CSBA contends that EERA must prohibit unfair practice strikes

before the parties have completed its impasse procedures. We agree that

EERA’s impasse procedures are more extensive than the MMBA’s impasse

procedures. (Compare §§ 3548–3548.8 to §§ 3505.2, 3505.4–3505.7.) But we

disagree that these differences require PERB to prohibit pre-impasse unfair

practice strikes like OEA’s strike. PERB does not prohibit all pre-impasse

strikes provoked by an employer’s unfair practices because it “would reward

unclean hands” and because those practices have “made good faith

bargaining impossible.” (Oakland Education, supra, PERB Dec. No. 2906, at

p. 30.) Neither of those reasons depends on the impasse procedures

themselves. Indeed, once the employer has violated its duty to bargain in

good faith, any impasse procedure—which is “rooted in the duty to bargain”

and depends on the employer’s good faith (ibid.)—becomes pointless and

ineffective. Thus, PERB did not clearly err by allowing pre-impasse unfair

practice strikes notwithstanding EERA’s rigorous impasse procedures.

E.

At the evidentiary hearing on the District’s complaint, the ALJ

excluded any evidence of educational harm caused by OEA’s one-day strike.

The District contends that PERB clearly erred by affirming this evidentiary

ruling. We agree but find the error to be harmless.

1.

We begin by reciting the facts relevant to this evidentiary issue.

Before the evidentiary hearing on the District’s complaint, OEA moved

to exclude evidence of educational harm suffered by the District and its

students due to the strike. According to OEA, that evidence was “irrelevant

48

to the lawfulness of [the] strike and should be excluded.” In its opposition,

the District contended that this harm was relevant “to PERB’s determination

of a proper remedy . . . .” At the hearing on OEA’s motion, the District again

argued that evidence of educational harm was relevant to its remedy. In its

offer of proof, the District stated that it wished to introduce evidence of the

instructional time for “students both in the general education and in the

[s]pecial [e]ducation categories” lost due to the strike. The District did not,

however, argue that this harm was relevant to OEA’s liability. The ALJ

granted OEA’s motion and excluded any evidence of educational harm.

In its posthearing brief, the District again argued that the ALJ erred by

excluding evidence of educational harm caused by the strike because it was

“quintessential to PERB’s determination of a proper remedy.” According to

the District, that harm included “loss of instructional time, loss of time for

legally mandated services to the most vulnerable children, denial of

nutritional services to children, [and] denial of safe spaces during the school

day.” Again, the District did not argue that this harm was relevant to OEA’s

liability under EERA.

Instead, the District made this argument for the first time in its

statement of exceptions to the ALJ’s proposed decision. In that statement as

well as in its reply, the District asserted that evidence of educational harm

was relevant to the issue of “provocation” and “the [l]awfulness of [a]n

[u]nfair [p]ractice [s]trike.” The District also reiterated that this evidence

was “essential to PERB’s determination of a proper remedy for the District.”

In affirming the ALJ’s exclusion of evidence of educational harm caused

by the strike, PERB concluded that the issue of the evidence’s relevance to

remedy was “moot” because “the District has not established liability.”

(Oakland Education, supra, PERB Dec. No. 2906, at p. 33.) PERB then found

49

that the District forfeited its argument that the evidence was relevant to

liability because it did not raise the argument in its response to OEA’s

prehearing motion. (Id. at p. 35.) PERB also rejected the District’s

invocation of the “total breakdown standard” used to determine whether

injunctive relief is warranted because “there is no injunctive relief request

before” it. (Id. at pp. 35–36.) Finally, PERB concluded that, even if that

standard applied here, the evidence proffered by the District did not meet it.

(Id. at p. 36.)

2.

The District contends that evidence of educational harm caused by the

strike was relevant to both OEA’s liability and the District’s remedy. We

agree and find that PERB clearly erred by excluding it.

First, evidence of educational harm was relevant to the remedy if the

District had prevailed. Although PERB concedes this, OEA does not, arguing

that this evidence only “related to infeasible, ambiguous” remedies that the

District could not obtain. Because we must defer to PERB’s interpretation of

EERA unless it is clearly erroneous, we reject OEA’s argument for this

reason alone. (Boling, supra, 5 Cal.5th at p. 912.) In any event, we would

reach the same conclusion without PERB’s concession. “PERB possesses

‘broad’ remedial powers enabling it ‘to take action . . . necessary to effectuate

the policies of’ ” EERA. (Internat. Federation of Prof. & Technical Engineers

v. Bunch (1995) 40 Cal.App.4th 670, 679.) Those policies include furthering

“the public interest in maintaining the continuity and quality of educational

services.” (San Diego Teachers, supra, 24 Cal.3d at p. 11.) Regardless of any

limits on the remedies that PERB may order, PERB cannot effectuate this

policy without considering the educational harm caused by the strike.

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Second, evidence of educational harm was relevant to OEA’s liability

under EERA. As an initial matter, we decline to find that the District

forfeited this argument by failing to raise it below (Oakland Education,

supra, PERB Dec. No. 2906, at p. 35) or in its petition and opening brief. As

PERB concedes, the District did make this argument in its exceptions to the

ALJ’s proposed decision. And the District’s petition and opening brief,

although they could have been much clearer, did arguably assert that

evidence of educational harm was relevant to liability. In any event, we

exercise our discretion to consider the issue because PERB and OEA had

ample notice of it and because of its importance. (In re Alayah J. (2017) 9

Cal.App.5th 469, 479.)

Turning to the merits, we find, as conceded by PERB at oral argument,

that this evidence was relevant to liability. As our high court explained over

55 years ago, EERA “requires” that PERB “use its power . . . in ways that will

further the public interest in maintaining the continuity and quality of

educational services.” (San Diego Teachers, supra, 24 Cal.3d at p. 11.) Thus,

PERB cannot “ignore ‘the larger harm’ involved in a teachers’ strike” when

determining whether that strike violates EERA. (El Rancho, supra, 33

Cal.3d at p. 957.)

This conclusion is buttressed by PERB’s own decisions. As PERB has

explained, “a strike may constitute an unfair practice” if the union fails “to

negotiate in good faith.” (Fresno Teachers, supra, PERB Dec. No. 208, at p.

11.) Indeed, a strike that “amounts to an unlawful pressure tactic” may

constitute “a refusal to bargain in good faith.” (Assn. of Building, Mechanical

and Electrical Inspectors (2010) PERB Dec. No. 2141-M, p. 9 (Inspectors).)

In determining whether a public sector union has bargained in good

faith, PERB has acknowledged that it must consider the “public interest”

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(Inspectors, supra, PERB Dec. No. 2141-M, at p. 13), including the “public

interest in education” (Fremont Unified School Dist. Teachers Assn. (1990)

PERB Order No. IR-54, p. 11 (Fremont Teachers)). Thus, PERB has regularly

“considered the impact of protected activity on third parties.” (Inspectors, at p.

13, italics added.) For example, PERB held that the picketing of “neutral

employers” by a public sector union constituted an “unfair pressure tactic in

violation of the MMBA” (Inspectors, at pp. 13, 12), because it “harmed the

public interest by enmeshing” those employers in the union’s “dispute with”

the public employer (id. at p. 13). Similarly, PERB held that an “intermittent

strike” conducted by public school employees violated their “duty to bargain

in good faith” under EERA because the strike prevented the school district

“from effectively maintaining the continuity and quality of education . . . .”

(Fremont Teachers, at p. 11.)

Considering the harm to students and their families when determining

whether a strike constitutes an unfair practice under EERA only makes

sense because that same harm already limits the “economic pressure devices”

that school districts may use to respond to the strike. (Fremont Teachers,

supra, PERB Order No. IR-54, at p. 11.) As PERB has recognized, school

districts, unlike private employers, may not use lockouts or discharges to

respond to a strike because of “[t]he public interest in education . . . and the

employees’ property rights in their employment . . . .” (Ibid.) If lockouts and

discharges may constitute unfair practices under EERA because of their

impact on students and their families, then the same must be true for strikes.

We therefore find that PERB erred by affirming the ALJ’s exclusion of

evidence of educational harm caused by the strike.

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3.

Although we find that evidence of educational harm caused by the

strike should not have been excluded, we find that this error was harmless

here. 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. 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.

(See, ante, at pp. 17–26, 37–39.) Thus, the exclusion of evidence of

educational harm in this case was harmless.23

In reaching this conclusion, we do not intend to minimize the

disruption caused by OEA’s one-day strike. As amicus curiae Tu Tran

explained on a personal level, OEA’s one-day strike noticeably harmed her

daughter’s education and caused considerable inconvenience and discomfort

23 The District may not rely on the cumulative harm caused by this one-

day strike in 2022 and subsequent strikes conducted by OEA in 2023 because

the District did not challenge the denial of its motion to include those later

strikes as part of this case. (See Oakland Education, supra, PERB Dec. No.

2906, at p. 12.)

53

to her and her children. Indeed, we have no doubt that OEA’s strike caused

real harm to the students and families in the District. We also

wholeheartedly agree that these work stoppages should be prevented at all

costs.

Nonetheless, we cannot conclude, based on the record before us, that

PERB clearly erred in concluding that OEA’s unfair practice strike did not

violate EERA. Because of PERB’s expertise in labor relations, particularly

its expertise in minimizing work stoppages, we must defer to that conclusion

here. (Boling, supra, 5 Cal.5th at p. 912.)

DISPOSITION

The petition is denied.

CHOU, J.

WE CONCUR.

JACKSON, P.J.

BURNS, J.

Oakland Unified School District v. Public Employment Relations Board

(A171007)

54

Oakland Unified School District v. Public Employment Relations Board

(A171007)

Counsel: Fagen Friedman & Fulfrost, Roy A. Combs, Mary

Breffle and Isabella Marra for Petitioner.

Atkinson, Andelson, Loya, Ruud & Romo, Mark Bresee and

Brooklyn Robertson; California School Boards Association,

Kristin Lindgren-Bruzzone, Ethan T. Retan, Dana Scott

and Olabode Owoyele for California School Boards

Association and its Education Legal Alliance as Amicus

Curiae on behalf of Petitioner.

Atkinson, Andelson, Loya, Ruud & Romo, Michael J. Davis,

Scott K. Holbrook and Benjamin R. Wang; Association of

California School Administrators, Iván Carrillo and

Dorothy Johnson for Association of California School

Administrators as Amicus Curiae on behalf of Petitioner.

Tu Tran, in pro. per., as Amicus Curiae on behalf of

Petitioner.

Sloan Sakai Yeung & Wong, Timothy G. Yeung and Jeffrey

Sloan as Amicus Curiae on behalf of Petitioner.

Public Employment Relations Board, J. Felix De La Torre,

Mary Weiss, Joseph W. Eckhart and Gabriel H. Orea for

Respondent.

Weinberg, Roger & Rosenfeld, Kerianne Steele, Katharine

R. McDonagh and R. Maxwell Sinclair for Service

55

Employees International Union, Local 1021 as Amicus

Curiae on behalf of Respondent.

California Teachers Association, Mandy Hu for Real Party

in Interest.

56