Understanding strikes to help ensure minimal impact

Recent school district employee strikes in Oakland and Los Angeles will likely serve as guides to labor unions entering into negotiations for the 2019-20 school year. It is likely that we will see more concerted labor action this year, particularly given the limited school resources with which many districts are currently dealing. However, it is important to understand that in addition to certain legal limitations on striking, collective bargaining agreements between districts and teachers’ unions can also restrict the ability of represented employees to strike. What needs to happen before a teachers’ union can call a strike?

A teacher strike is a work stoppage used as a form of protest. A strike typically occurs when contract negotiations break down, though they sometimes also occur in response to unfair alleged labor practices on the part of the employer. California law mandates that teacher unions must participate in good faith in the negotiation process, including the “impasse process” utilized when agreement is not initially reached. (California Government Code sections 3543.6 and 3548.) This means that strikes that occur during negotiations or before the district and union exhaust impasse procedures are presumptively unlawful as they demonstrate a failure of “good faith.” Prior to striking, a teachers’ union must receive the support of members for a strike, typically through education and a vote, and must give the district reasonable notice of an intent to strike.  When is a strike unlawful?

• A strike is unlawful when the item the teachers seek through the strike is unlawful.
  
• A strike is unlawful when a collective bargaining agreement expressly prohibits a strike.
• A strike is typically unlawful when it occurs prior to the parties exhausting the impasse process.
• A strike may be unlawful when it results in a “total breakdown of education,” such that students cannot receive a basic education and the strike amounts to a coercive tactic holding education hostage.
• A strike is unlawful when it is a “surprise strike,” and the district did not receive any prior notice.

What action short of a strike is unlawful: work to rule and partial strikes Districts typically cannot discipline teachers who lawfully engage in a legal strike. However, there are other concerted actions that are not legally protected and thus can result in discipline. This would include slowdowns, certain “work-to-rule” actions and partial strikes if they result in teachers failing to perform normally required duties and assigned adjunct duties. In a work to rule, employees do nothing more than the literal terms required by their formal obligations as employees. Thus, teachers may refuse to perform any duties not specifically within their job descriptions or specifically required by law, the collective bargaining agreement, or some other written rule. 

In a partial strike, employees may refuse to complete a specific portion of their assigned job duties, such as providing recess supervision, arriving a specific amount of time before work, or completing an adjunct duty. These partial strikes and work-to-rule actions are unprotected if they result in failure of the staff to perform normally required assigned duties and assigned adjunct duties. Some of these duties may include before and after school supervision and attending team meetings. An example of a prohibited concerted activity that was framed as a “partial strike” involved teachers who engaged in informational picketing on the sidewalks outside school during the 30 minutes prior to the start of class. In that case, the Public Employment Relations Board (“PERB”) determined this was a “partial work stoppage” because by picketing, the teachers were not actually providing the supervision necessary before the school day. (El Dorado Union High School District (1985) PERB Dec. No. 537, 10 PERC Para. 17006, pp. 19-20.) Preparing for an impending strike The more prepared the district, the less likely a strike is to occur or become prolonged. In planning, the key areas of focus should be twofold: first, to keep the district open and functional during the strike period and second, to ensure student safety during any strike. Early on, the district administration should create a strike team and a strike plan they can implement to keep the schools open and functional in the event of a strike. To ensure comprehensive planning, the strike team will likely include consultants and attorneys experienced in managing strikes; this may include representatives from the County Office of Education. Part of the strike team duties include meeting with key site staff to ensure readiness in the event the strike plan must be implemented. The strike team should consider how to continue district operations during a strike, including ensuring student safety, maintaining meal service, and ensuring ongoing education. A district may consider whether it can modify current volunteer practices to permit additional external support during a strike. As a strike becomes more imminent, district leadership will need to increase messaging to inform the community about the district’s negotiation proposals to the union, answering questions about what a strike means for students, describing what the district is doing to prepare for the strike (e.g., obtaining substitutes and planning to utilize district office administrators with credentials in classrooms) and describing what the district is doing to attempt to settle with the union. If a strike is imminent, the strike team must also work with each school site to implement personnel deployment plans, safety plans, and individualized communication plans. As the potential for a strike becomes more imminent, a district board should pass an emergency strike resolution outlining authority delegated to the superintendent to keep the district open and functioning during a work stoppage.  All district administrators should know it is inappropriate to ask employees about what they discuss during union meetings or inquire about whether the association has authorized a strike. If an administrator notices conduct or behavior signaling a strike, they should immediately contact the district’s human resources department to ensure legal and consistent responses. While no one can order an individual employee to participate in a strike, no one can order the employee not to participate. Statements made about “an employee’s right to choose” can be perceived as retaliating against an employee for exercising their right to strike. Thus, administrators should never make statements to employees that may be perceived as interfering with an employee’s right to strike.  District business during a strike Absent a different directive from district leadership, all schools are expected to follow normal schedules and to provide regular services to students. In some cases, districts may send students from multiple campuses to a single location, modifying this practice. While sites may need to temporarily have larger classes or utilize administrators in teaching roles, districts should ensure adequate supervision and, as much as possible, continued student learning. District leadership should remember that many students rely on schools for before and after school care, and for meals, working hard to maintain consistency in these services.  District business after a strike Employers should consult with legal counsel prior to withdrawing a pre-strike proposal after a strike has commenced. Courts disapprove of employers removing pre-strike offers, unless the removal of the offer is justified by a legitimate economic or business reason. An employer’s withdrawal of a pre-strike proposal after a strike has commenced is generally considered an unfair labor practice: refusal to bargain in good faith. (Randle-Eastern Ambulance Service and Transport Workers, Local 500, (1977) 230 NLRB 69, 95 LRRM 1332.) In Randle-Eastern, the board found that the employer’s withdrawal of the pre-strike offer converted an economic strike into an unfair labor practice strike. According to the board, the employer’s “dramatic step of withdrawing all prior offers from the bargaining table” constituted a refusal to bargain in good faith.  However, a district employer has a right to withdraw pre-strike proposals to reflect the changed economic background. Thus, absent evidence of changed economic conditions, it is highly probable that an employer’s withdrawal will be seen as a bad faith refusal to bargain, justifying an unfair labor practice charge against the district. To determine if this applies, the district may ask itself, “would it have made this changed proposal or withdrawn the proposal if the strike had not occurred?” If the answer is yes, the action is likely lawful. Conclusion Given the competing interests for limited school resources, it is likely that several public school districts will face the threat of a teachers’ union engaging in a strike. Since California case law on public school employee strikes is complicated and fact-specific, working with your labor attorney is key to determining the legality of a strike. Once a strike’s legality is established, districts can both ease the impact of and minimize the effectiveness of a strike by being prepared and working quickly to communicate plans with stakeholders. To do that, it is important for districts to quickly seek legal guidance, and to also seek support from educational consultants, in addition to communicating with other districts who have weathered a strike storm. Doing so will help ensure smooth operations and student safety.

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Bill Diedrich and Sara Young work for the law firm of Atkinson, Anderson, Loya, Ruud & Romo.