OAKLAND UNIFIED SCHOOL
A171007 (Public Employment Relations Board Decision No. 2906 Case No. SF-CO-864-E)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 7/2/25
CERTIFIED FOR PUBLICATION
The Oakland Education Association, CTA/NEA (OEA) is the exclusive representative of certain employees of the Oakland Unified School District (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 that PERB erred by excluding evidence of educational harm but that this error was harmless. We therefore affirm.3
We begin with an overview of EERA and its history.
In 1935, Congress adopted the National Labor Relations Act (NLRA;
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 (
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.)
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
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 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.” (
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” (
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-employee relations.” (
As for negotiations over “wages, hours of employment, and other terms and conditions of employment” (
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
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.” (
The factfinding panel “may make inquiries and investigations, hold hearings, and take any other steps as it may deem appropriate.” (
Finally, EERA gives PERB the power “[t]o investigate unfair practice charges or alleged violations of” EERA. (
any determinations . . . [it] deems necessary to effectuate the policies of” EERA. (
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.
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
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
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 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
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
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
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.4th 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
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
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
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
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.” (
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).)
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.
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
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
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. 573Id. 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.”
(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 [
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, 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
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 well as its reasoning concerning MMBA [former]
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
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.)
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 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.)
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 ”
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
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 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.)
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 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
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
This is because the language of
representation on all matters of employer-employee relations“—appears to be broader than the concerted activities language. Not only did PERB reach this
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.” (
Citing statutes from other states that include the language of
Likewise, the District‘s invocation of
Court made this clear in 1979 (see ibid.) and again in 1985 (see County Sanitation, supra 38 Cal.3d at p. 573 [like
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
would have given “‘public employees . . . [a limited] right to strike‘” (County Sanitation, supra, 38 Cal.3d at p. 571, fn. 12)—the District and
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
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 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
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 right of students to a public education under the California Constitution. (
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 show that
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 District 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. 1274Star-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 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
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
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.
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.
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
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 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
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 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
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 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
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
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 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,
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 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 International Federation of Professional & 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 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. 11El 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 Association, 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.” (Association 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” (Inspectors, supra, PERB Dec. No. 2141-M, at p. 13), including the “public interest in education” (Fremont Unified School District Teachers Association (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. 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 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)