— I respectfully dissent. Petitioners were properly adjudged in contempt for conducting a strike in violation of the express terms of a temporaiy restraining order and preliminary injunction. As will appear, the strike was clearly unlawful under California law. No statutory right to strike was granted to public employees by the legislative adoption of the Education Employment Relations Act (EERA) (Gov. Code, §§ 3540-3549.3). Contrary to the majority’s holding, the Legislature has not conferred upon the Public Employment Relations Board (PERB), or any other administrative agency, the authority to deprive a public school employer of its right to seek and obtain injunctive relief to restrain such unlawful activities and to protect the public’s interest in the uninterrupted operation of its public schools.
The district’s complaint for injunctive relief in the present case alleged that the impact of the illegal teachers’ strike would cause irreparable injury to the district’s educational program and a significant loss of state funds (which are based upon average daily school attendance). Under prior California case law it was well established that a public employer could obtain immediate injunctive relief from the courts to prevent or reduce such irreparable injury or loss. (E.g., City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41 [137 Cal.Rptr. 883].) The majority now severely limits the public employer’s judicial remedy to protect the public interest and requires that it request and obtain PERB’s permission in order to invoke judicial relief. The majority suggests that PERB not only has exclusive jurisdiction over strikes by public educational employees but even possesses discretion to refuse to enjoin such strikes consistent with “[i]ts mission to foster constructive employment relations.” (Ante, p. 13.) Despite the obvious potential irreparable injury *15caused by a public employee strike and the evident need for guidance in this area, the majority studiously declines to decide whether the employer may pursue its judicial remedy in the event PERB either refuses to act, or unreasonably delays in doing so. I suggest that, having cast doubt on the recourse of the public employer to its traditional judicial remedies to protect a demonstrable public interest in these cases, we owe the public a full explanation of whatever rights and remedies, if any, it retains to protect itself.
As will appear, I disagree with the majority’s premise, reasoning, and result.
1. Public Employee Strikes are Unlawful
The majority opinion itself cites five Court of Appeal cases which, without equivocation, hold that public employees have no right to strike in California. (Ante, pp. 5-6.) Indeed, we ourselves have fully acknowledged the rule that “In the absence of legislative authorization public employees in general do not have the right to strike . . . .” (Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 687 [8 Cal.Rptr. 1, 355 P.2d 905].) Yet despite past unanimity of judicial opinion on the subject, the majority finds it “unnecessary here to resolve the question of the legality of public employee strikes . . . .” (Ante, p. 7, italics added].) Contrary to the majority’s suggestion, however, there remains no such “question” to decide, for prior cases which have carefully and thoughtfully analyzed and resolved the issue have ruled that public employee strikes are unlawful in the absence of legislation to the contrary.
I quote at some length from Justice Coughlin’s opinion in City of San Diego v. American Federation of State etc. Employees (1970) 8 Cal.App.3d 308 [87 Cal.Rptr. 258], wherein he painstakingly reviewed the prior authorities in California and in other states, concluding that in the absence of some statutory authorization, public employees have no right to strike against the public. He observed that “This California common law rule is the generally accepted common law rule in many jurisdictions. [Citations, including cases from 24 states.]
“The common law rule has been adopted or confirmed statutorily by 20 states and the federal government. [Citations.]
“The reasons for the rule are many; apply public policy; relate generally to the fundamental differences between private and public employment as regards the processing and settlement of labor demands *16and disputes; take into account the authority of the public employer respecting both the method for fixing and the substance of the terms and conditions of public employment is limited to that prescribed by law; include a consideration of the overriding duty of the public employer to perform prescribed governmental functions; and furnish a constitutionally approved basis for classification in the premises. [Citations.] Of particular significance is the fact the employer-employee relationship in public employment is the product of law — constitutional, legislative and decisional — rather than the product of a contract as in private employment. [Citations.] The terms and conditions of public employment are fixed by the public through the process of law, and acceptance of such employment requires acceptance of the processes by which the terms and conditions of employment are fixed, i.e., by law rather than by contract [citation]; confers benefits not available to the private employee which are the product of the processes of law, such as civil service tenure status and a vested right to retirement benefits [citations]; but also imposes a distinct responsibility attendant upon public service [citations]; and results in the relinquishment of certain rights enjoyed by private employees. [Citations.]
“. . . The common law rule public employees do not have the right to bargain collectively or to strike is predicated expressly on the necessity for and lack of statutory authority conferring such right. Where a statute authorizes collective bargaining and strikes it includes them within the methods authorized by law for fixing the terms and conditions of employment. Those who advocate the right of public employees to strike should present their case to the Legislature. [Italics added.]
'66
“Wherever the issue has been raised, it has been held laws governing the rights of public employees to engage in union activities, collective bargaining, strikes and other coercive practices, not equally applicable to private employees, and vice versa, are premised on a constitutionally approved classification; and, for this reason, are not violative of the constitutional guarantee of equal protection of the law. [Citations.] [¶] The reasons for the law denying public employees tlie right to strike while affording such right to private employees are not premised on differences in types of jobs held by these two classes of employees but upon differences in the employment relationship to which they are parties. The legitimate and compelling state interest accomplished and promoted by the law denying public employees the right to strike is not solely the need for a particular governmental service but the preservation of a system of government in the ambit of public employment and the proscription of *17practices not compatible with the public employer-employee relationship. [Citation.]” (8 Cal.App.3d at pp. 311-315.)
In the context of teachers’ strikes, one commentator has cogently observed that a sound public policy underlies the foregoing established rule. “The use. of the. strike against the school boards, as against private employers, amounts to an exercise of economic pressure — the stoppage of services to force concessions. But to the extent teachers can wield the strike against the school boards, they wield it also against the public. Should the public be subjected to economic pressure? From a political view, the answer would seem to be an unequivocal no. The public should be and is subject to political pressure that is exercised in open channels in the legislative and executive branches of the government. This pressure is tolerable, indeed desirable, because all interested organized groups have access to the same channels of communication and are able to use the same methods of pressure, subject to limitations in relative strength and interest. The people, through the political organs of government, remain the ultimate decisionmakers. Utilization of economic pressure via the strike leaves no room for the free interchange of groups with differing views. The impact on the public can be severe, dramatic, and immediate. The school board, having an obligation to the public to provide a continuing service, has little discretion in its adjustment to the strike. To halt the stoppage, some concession will usually have to be made; and, when such steps are taken, the teachers and not the board decide the issues. At that point, public sovereignty is at its lowest ebb. Though the board is still accountable to the electorate, the power of the strike enables the teachers to compel decisions possibly inconsistent with the wishes of the public’s representatives.
“Since the teacher’s expertise is a justification for his power to bargain collectively, one may argue that the same rationale should be applied to his use of the strike, particularly since this power is used to make collective bargaining effective. Except for the fact that the powers of bilateral control and the strike are exercised in much different situations, the argument might carry considerable weight. In the case of bilateral control, the board has the power to make concessions and to determine the shape of its counterproposals. This freedom of action is greatly constricted when the board must make decisions under the pressure of a strike. Against the expertise of the teacher must be balanced the interest of the public in retaining control over educational decisionmaking in the hands of its representatives. Although teacher expertise might justify a role for teachers in the decisionmaking process, it cannot justify the use of an economic weapon that places the balance of power in the hands of the teachers. This is particularly true when the strike is used to compel higher *18wages, a matter only peripherally related to teacher expertise.” (Note, Collective Bargaining and the California Public Teacher (1969) 21 Stan.L.Rev. 340, 375-376, italics in original, fn. omitted.)
It is well and widely accepted that education ranks among the highest and most important of public purposes. We ourselves have said that public education is a fundamental interest (Serrano v. Priest (1976) 18 Cal.3d 728, 766 [135 Cal.Rptr. 345, 557 P.2d 929]) which is “essential to the preservation of the rights and liberties of the people . . . .” (Cal. Const., art. IX, § 1.) It follows, accordingly, that a strike which might be tolerated in the private sector as a legitimate economic weapon, must necessarily be held unlawful when it becomes a strike against the sovereign public itself as applied to educational employment, for it is pointed and directed against a function essential to “the rights and liberties of the people.” (Ibid.)
Since the majority elects not to pursue the point, I will forego further discussion beyond noting, however, that as recently as 1977, in a case declaring unlawful a strike by public school employees, the appellate court reiterated the views of a 1972 case that “ ‘no benefit... would result from our reanalyses of the same issues which the ... (omission in original) cited opinions have exhaustively treated, with extensive citation of authority.’ ” (Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers (1977) 72 Cal.App.3d 100, 107 [140 Cal.Rptr. 41].) We unanimously denied a hearing in the Pasadena case. If there are lurking majority reservations regarding an important principle of law which has been treated as settled for so long, surely there is an obligation to set forth those views openly and candidly.
In reexpressing the reasons for the long established conclusion that public employee strikes are illegal, we could repeat with Justice Coughlin the words of the late President Franklin D. Roosevelt, long recognized as an historic friend of labor: “ ‘Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees .... [A] strike of public employees manifests nothing less than an intent on their part to prevént or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.’ [Citations.]” (8 Cal.App.3d at p. 316.)
2. Right to Strike Under the EERA
As indicated above, the prior cases have held that despite the illegality of public employee strikes at common law, the Legislature may, if it so *19chooses, act to grant the right to strike to some or all public employees. For example, we held in Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen, supra, 54 Cal.2d 684, 687-689, that legislation which confers on a particular class of employee the right to engage in “concerted activities” for the purpose of collective bargaining or mutual aid or protection (see, e.g., Lab. Code, § 923, as to private employees), would confer the right to strike peacefully to enforce union demands.
Conversely, it also has been held that legislation which purports to deprive a particular class of employee of the right to engage in concerted activities, or which withholds the applicability of the provisions of Labor Code section 923, demonstrates a legislative intent to withhold the right to strike. (Pasadena Unified Sch. Dist. v. Pasadena Federation of Teachers, supra, 72 Cal.App.3d 100, 106; Almond v. County of Sacramento (1969) 276 Cal.App.2d 32, 37-38 [80 Cal.Rptr. 518].)
The majority acknowledges that the EERA, under section 3549 of the Government Code, expressly provides that “The enactment of this chapter [regarding meeting and negotiating in public educational employment] shall not be construed as making the provisions of Section 923 of the Labor Code applicable to public school employees . . . .” (Italics added.) Because section 923 declares as a public policy the right of a private worker to engage “in other concerted activities,” judicially defined as including the right to strike (Los Angeles Met. Transit Authority, supra, at p. 689), it seems to me inescapable that the foregoing language of section 3549 conclusively establishes the Legislature’s intent to deny this weapon to public school employees. Indeed, this very language was held in Pasadena to constitute a legislative affirmance of an intent “to withhold the right to strike from public educational employees.” (72 Cal.App.3d 100, 106-107; see Almond v. County of Sacramento, supra, 276 Cal.App.2d 32, 37-38.)
The majority’s disposition of section 3549 is wholly unsatisfactory in its insistence that “. . . section 3549 does not prohibit strikes but simply excludes the applicability of Labor Code section 923’s protection of concerted activities.” {Ante, p. 12.) In my view, the argument is manifestly wrong, as the above quoted Pasadena holding indicates. To the contrary, by withholding the protection of section 923 the Legislature necessarily retained the preexisting prohibition against all public employee strikes.
Therefore, in examining those sections of EERA relied on by the majority, we should bear in mind that, under EERA’s own provisions, public school strikes remain unlawful.
*203. PERB’s Exclusive Jurisdiction Over Unfair Practices
Section 3541.5 of the Government Code vests exclusive jurisdiction in PERB with respect to “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 . . . .” The majority interprets this language as authorizing PERB to decide initially, to the exclusion of the courts, whether a public employee strike should or should not be enjoined. To the contrary, nothing in EERA would support the view that the Legislature intended to divest courts of their traditional equitable jurisdiction over public strikes or any other unlawful activities which threaten irreparable injury. Such injunctive relief would not impair PERB’s functions in any way, but would simply preserve the status quo while the parties mediate the merits of their dispute through PERB proceedings.
As becomes readily apparent from an examination of its provisions, EERA was designed to provide a commendable forum whereby disputes between public school employees and employers might be discussed, mediated and resolved. The unfair and unlawful practices which fall within PERB’s jurisdiction include such acts as discrimination or coercion of employees, refusal to negotiate or participate in impasse procedures, and interference with employee organizations. (See Gov. Code, §§ 3543.5, 3543.6.) However, EERA nowhere mentions a strike by public school employees as one of the practices which is subject to PERB’s jurisdiction, and the Legislature’s express refusal to validate such concerted activity {id, § 3549) necessarily would preclude PERB from exercising jurisdiction over such strikes, or doing any act which might encourage or prolong such unlawful conduct.
The principal thesis of the majority holding is that “the EERA gives PERB discretion to withhold as well as pursue, the various remedies at its disposal .... PERB may conclude in a particular case that a restraining order or injunction would not hasten the end of a strike . . . and, on the contrary, would impair the success of the statutorily mandated negotiations between union and employer: A court enjoining a strike on the basis of (1) a rule that public employee strikes are illegal, and (2) harm resulting from the withholding of teachers’ services cannot with expertise tailor its remedy to implement the broader objectives entrusted to PERB.” {Ante, pp. 12-13.) By thus construing EERA, the majority permits PERB to validate a public strike by refusing to enjoin it. The *21majority thereby indirectly accomplishes precisely the result which the Legislature so carefully and specifically sought to prevent — the conferral of a right to strike on public school employees. Therefore, despite the majority’s declaration that it leaves the “question” of public strikes open for future decision, the public as employer seeking to enjoin such strikes may henceforth find the courtroom doors firmly closed.
The majority opinion is deeply troubling in one further respect. The majority concludes that it “need not decide” whether a school district may pursue its traditional judicial remedies if PERB should decline either to seek injunctive relief on its own or to issue an unfair practice complaint against the striking employees. (Ante, p. 13.) The fair implications of such a principle are indeed startling. Consideration of this issue, in my view, should not be deferred but demands our immediate attention so that the lower courts will have guidance, for one can readily envision the following circumstances occurring with frequency: A strike is called hurriedly to coerce a settlement of the strikers’ demands; irreparable harm ensues; the district rushes to PERB requesting immediate relief; PERB delays or withholds action pending its discretionaiy consideration of the “broader objectives” which the majority now places within its exclusive jurisdiction, or for other reasons satisfying to itself. Meantime, the entire public school system and its programs are held hostage to a combination of strikers’ demands and PERB’s inertia. It is inconceivable to me that the Legislature would seriously have intended such public impotence.
In this instance, teachers’ union officials studiously, with full knowledge of the consequences and with full ability to comply, chose to defy an express order of a court whose powers were properly invokéd in the field of education, an area of continuing and consuming public interest. I cannot believe that the Legislature under such circumstances intended to strip from courts their traditional equitable powers, thereby leaving the public helpless and without a remedy to protect itself.
In such a situation petitioners should be treated no differently than any other contemner. I would affirm the orders of contempt.
Clark, J., and Manuel, J., concurred.
Respondent’s petition for a rehearing was denied May 10, 1979. Bird, C. J., did not participate therein. Kaus, J.* participated therein. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.
Assigned by the Acting Chairperson of the Judicial Council.