The short answer is that neither the Governor nor the district has any authority to suspend collective bargaining. It would take a specific act of the legislature to repeal the EERA or temporarily suspend the EERA.

Several months ago the Governor declared a fiscal emergency. Then, as now, the Governor had no authority to suspend collective bargaining and collective bargaining was not suspended. Some of the confusion may be a result of some districts blatantly refusing to negotiate because of uncertainty over the state budget or districts following the recommendations of outside consultants who recommended postponing negotiating salary and benefits until a state budget had been signed. While some districts did in fact refuse to negotiate for these reasons, neither reason has any legal authority. Refusal to bargain is a per se unfair labor practice which can be addressed and remedied through PERB proceedings. Some chapters chose to file unfair practice charges, some chose to wait it out, and some actually bargained through the period of declared fiscal emergency to emerge with salary and benefits increases. Again, neither a Gubernatorial declared fiscal state of emergency nor the looming state budget deficit provide a district with any legal authority to refuse to bargain.

Even in the cases where a school district has a qualified or negative certification, the COE has refused to approve the district’s budget, or the district is under state receivership, collective bargaining remains alive and well, although somewhat altered. For negative certifications the COE can assign a fiscal advisor who has stay or rescind power over board actions that are inconsistent with fiscal recovery. However, the education code specifically prohibits a fiscal advisor from abrogating any provision of a collective bargaining agreement entered into prior to the date that the COE assumed authority. This means that you may have to bargain with the COE fiscal advisor but collective bargaining is still required and the fiscal advisor cannot abrogate any existing CBA provision. See Ed Code section 45127.6(g).

Under state receivership, the authority of the school board is limited even further than when a district has a negative certification. State receivership will occur when a school district requests an emergency loan from the state because it is unable to meet its financial obligations. Even in this dire circumstance, the appointed state administrator/trustee is obligated to bargain with the exclusive representative. Since the appointed state administrator serves at the pleasure of the State Superintendent of Instruction and the local school board is relegated to an advisory body only, the ability of the local to influence the state administrator is limited; however, the state appointed administrator remains obligated to engage in collective bargaining. There is nothing in the ed code sections that authorize emergency loans and state receivership that rescind the requirements of the EERA.

Does this mean districts will not refuse to bargain or will not unilaterally cut salaries and benefits? No. The law doesn’t really prevent a party from behaving badly; rather, it provides a process for obtaining a remedy for that bad behavior. Of course, that remedy may be a few years down the road….but by no means is that bad behavior simply excused because there is a fiscal crisis at the local, state, or national level.

In terms of tactics or strategies, it would be absurd for a school district to self-certify a negative budget when it had substantial reserves or request an emergency loan when it did not need one. In fact, no district has requested an emergency loan that wasn’t truly cash flow insolvent. The reason it would be absurd is because a negative certification or an emergency severely limit the authority of the local administration and school board. Bargaining is ultimately about control - maintaining or increasing control over contractual provisions and the other party’s behavior; and self-certifying as negative or requesting an emergency loan lessens the control the district will have over all aspects of its management, not just collective bargaining, without alleviating the requirement of bargaining in good faith.

In a nutshell, when times are lean, there may be nothing to bargain for (and you may be bargaining against cuts), but collective bargaining is still the law.