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Antonucci: Is the Sacramento teacher strike legal, and will it open the floodgates to new strikes, even re-upping them in L.A. and Oakland?

Mike Antonucci | April 9, 2019

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Mike Antonucci’s Union Report appears weekly at LA School Report.

Another California school district in financial crisis is facing a teacher strike, but Thursday’s one-day walkout in Sacramento is something different than what we’ve seen so far this year, and it might not be legal.

But that’s not stopping the Sacramento City Teachers Association from hinting at national implications.

“Will L.A., Oakland and Denver be forced to strike again if agreements recently reached aren’t honored?,” the SCTA declared in a news release last week.

Although it’s tempting to view this week’s one-day strike against the Sacramento City Unified School District as another in a string of public school employee job actions, this one is different.

The strikes in Los Angeles and Oakland occurred only after the prescribed steps in state law were followed. Impasses were declared, mediation took place, fact-finding reports were issued, and proper notices were given.

All of these things occurred in Sacramento as well, but in 2017. Though the union threatened to strike, it reached a contract agreement with the district four weeks after the fact-finding report was completed. That agreement is still in force, and it contains a no-strike clause.

Article 3.7 reads: “The Association and the District agree that differences between the parties shall be settled by peaceful means as provided in this Contract. For the duration of this Contract, the Association, in consideration of the terms and conditions provided herein, will not engage in, instigate or condone any strike or work stoppage of members of the bargaining unit.”

That seems ironclad, but there is a loophole. SCTA is engaging in what is commonly referred to as an “unfair labor practice strike.” That is, SCTA contends the district is unlawfully violating the contract and it has no recourse but to strike in response.

When such strikes occur in the private sector they are regulated by the National Labor Relations Board. Things are murkier in the public sector, but in 2010 the California Public Employment Relations Board (PERB) ruled in a landmark case that unfair labor practice strikes were permissible.

PERB held that, “To establish that a strike is an unfair practice strike, the employee organization must prove that: (1) the employer committed an unfair practice; and (2) the employer’s unfair practice provoked the strike.”

The first is not an insurmountable hurdle. SCTA claims the district has “engaged in at least 30 unlawful, unfair labor practices.” The second is trickier, since the district has offered to hold discussions with the union about their differences.

The key is that SCTA cannot unilaterally decide the district violated the contract and labor law. PERB must make that determination. But state agencies don’t operate at the speed of light, and the strike will have come and gone before we hear anything from PERB.

SCTA has made clear by its actions that it understands what is necessary to make the best case. Robert Schwartz, a union labor lawyer and author, created a list of tactics for unions to use in unfair labor practice strikes in an article for Labor Notes in 2012. Although the article focuses on private sector unions, SCTA appears to have taken many of these steps.

“Before the members vote to authorize a strike, the union should educate them about the employer’s unfair labor practices, using handbills, newsletters, rallies, and meetings,” Schwartz wrote. He also recommended that the strike vote itself and all communications with management reference the unfair labor practices.

Press releases, interviews and even picket signs should emphasize the unfair labor practices, he wrote.

Sacramento City Unified, which is facing a possible state takeover, plans to hire replacement teachers during the strike. This irked David Fisher, president of SCTA. “They can find resources to pay up to $500 a day, but they can’t find the resources to help us stay out of this budget crisis and to avoid a strike,” he said.

The district will be able to afford to pay a few hundred substitutes $500 a day because it won’t be paying the 2,800 teachers and other professionals who will be out on strike.

The district is legally permitted to hire replacement workers during the strike — and receive restitution from the union for the net expense, if any — but only if PERB rules the strike illegal. Again, this won’t happen overnight.

SCTA hedged its bets by making the strike for one day only. In the event of an adverse PERB ruling, it limits the union’s potential liability.

The effect on Sacramento parents and students will also be minimal. The worry is that unfair labor practice strikes will become popular among the state’s teacher unions, leading to strikes and disruptions whenever and wherever the union sees fit, regardless of contract status — even, again, in Los Angeles and Oakland.

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