San Diego Unified School District (PERB 0137E)

STATE OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SAN DIEGO TEACHERS ASSOCIATION, CTA/NEA,
Charging 	Party,
and
SAN DIEGO UNIFIED 	SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-194
PERB Decision No. 	137
June 19, 1980
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Appearances; 	Charles R. 	Gustafson, 	Attorney for 	San Diego
Teachers Association; 	Ralph D. 	Stern, Attorney for 	San Diego
Unified School District; 	Richard J. 	Currier, 	Attorney for
Association of California School Administrators, 	amicus curiae.
Before: 	Gluck, Chairperson; Gonzales and Moore, Members.
DECISION
The 	San Diego Unified 	School 	District 	(hereafter 	District)
has 	filed 	exceptions 	to 	the 	attached 	hearing 	officer 	decision.
The 	hearing 	officer 	found 	that 	the District 	violated
section 3543.5 (a) 	of 	the Educational Employment Relations Act
(hereafter 	EERA)1 by placing letters of commendation 	in 	the
personnel 	files of 	the 	approximately 	2,500 	unit 	employees 	who
had 	not participated 	in a strike. 	He 	concluded 	that 	such
conduct 	was 	a discriminatory reprisal 	against 	those who had
1 EERA is 	codified at Government Code 	section 	3540,
et 	seq. 	All 	statutory 	references 	in 	this 	decision 	are 	to 	the
Government Code, 	unless 	noted otherwise. 	EERA is 	administered
by the Public Employment Relations Board, 	or 	PERB. 	(Prior 	to
July 	1, 	1978, 	PERB was 	known as 	the Educational Employment
Relations Board, 	or EERB.)
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participated 	in the strike. 	The hearing officer also found a
violation of section 3543.5(c) 	because the District failed to
disclose 	the existence of the letters during the course of
negotiations after 	the 	strike ended. 	The exclusive
representative, 	the San Diego Teachers Association 	(hereafter
Association), has not filed any exceptions to the decision.
For 	the reasons set forth below, 	the Board 	itself affirms the
findings of fact and the conclusions of the hearing officer, 	as
modified herein.
FACTS
In brief, 	the hearing officer 	found that a strike called by
the Association 	in the District was halted following a
three-two school board vote promising that 	"no sanctions" other
than loss of pay would be taken against strikers 	if they
returned 	to work and 	if negotiations were resumed.2 	These
conditions were met. 	Thereafter, while negotiations continued,
the two dissenting members of the school board, without
informing 	the three members who had approved the 	"no sanctions"
resolution, prepared a letter of commendation to be placed 	in
2The motion approved by the school board at a special
meeting on June 9, 	1977 stated:
That no sanctions other than loss of pay be
imposed on strike participants on the
condition that 	the 	strike end 	today and that
the union negotiators return to the table
tomorrow morning.
N	
2

the 	personnel 	files of 	school 	teachers who had 	not 	been on
strike. 	The 	letter 	was prepared on official 	stationery, 	using
the board members' 	titles, 	and there was a 	testimonial
admission 	by 	the District 	that 	the 	letters might be considered
as 	a 	factor 	affecting 	employee 	promotional 	opportunities.3
3The 	commendation 	letter 	stated, 	in 	full:
August 23, 	1977
'The 	true 	teacher 	defends his pupils
against his own personal 	influence. 	He
inspires 	self-trust. 	He guides 	their 	eyes
from 	himself 	to 	the 	spirit 	that 	quickens
him. 	He will have no disciple. 1
Orphic Sayings 	(1840) 	Amos Bronson Alcott
Dear 	Teacher:
Thank you 	for 	your 	dedication 	to 	the
children of 	San Diego 	during 	the 	recent
teacher's 	strike. 	By continuing 	to 	fulfill
your 	contract 	in 	the 	face 	of many pressures
exerted 	upon you 	to 	join 	the 	ranks 	of 	those
who 	had 	abdicated 	their 	responsibilities,
you 	demonstrated 	clearly 	and 	forcefully 	that
you 	are a 	truly professional 	teacher. 	Yours
was 	a courageous 	stand.
We 	want you 	to 	know 	that we 	shall 	always
be 	grateful 	to you 	and 	to 	all your 	fellow
teachers who 	faced 	up 	to 	their 	obligations.
And 	the 	children 	you 	served will 	remember 	it
long 	after 	we 	are 	gone.
Truly yours,
/s/George W. 	Smith, 	President
Board 	of 	Education
/s/Dorothea Edmiston, 	Member
Board 	of 	Education
cc: 	Personnel Division
Employee 	Personnel 	File
3

Representatives of 	the 	District 	did 	not 	inform 	the
Association 	about 	the 	letter 	during 	negotiations 	although, 	as
the 	testimony disclosed, 	the District's 	chief 	negotiator 	was
also 	the 	personnel manager 	and 	was 	in charge 	of 	receiving 	the
letters 	of 	commendation 	and 	responsible 	for 	placing 	them 	in 	the
teacher 	jackets. 	Contrary to routine practice, 	the decision to
file 	the 	letters 	was 	cleared 	by 	this 	individual 	with 	the
District 	superintendent 	because 	of 	the 	large 	number 	(about
2,500) 	and 	the 	time 	it would 	take 	to 	file 	them. 	Only after 	a
collective 	agreement 	had 	been 	reached 	by 	the 	parties 	in
mid-September 	was 	the Association 	notified 	of 	the 	commendation
letter 	by 	individual 	employees. 	The 	charging 	party 	then
protested 	to 	the 	three 	school board members who 	had 	voted 	for
the 	"no sanctions" 	resolution, 	but 	they took 	no action.
The Association 	filed 	an 	unfair 	practice 	charge 	alleging
violation of sections 3543.5(a), 	(b), 	(c) and (d);4
specifically, 	that 	the District's 	conduct 	in 	connection with
the 	commendation 	letter 	constituted 	a 	discriminatory 	reprisal
against 	employees who had been on 	strike, 	was 	a 	breach of 	the
4 Section 3543.5, in relevant part, provides:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten 	to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
4

"no sanctions" 	agreement, 	amounted 	to a refusal 	to negotiate 	in
good 	faith, 	and 	interfered 	with 	the 	right 	of 	representation 	and
the 	administration of 	the 	employee 	organization.5
DISCUSSION
In 	the 	briefs 	filed with 	the Board, 	the District and 	amicus
make 	three 	basic contentions. 	First, 	they dispute 	the 	finding
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an exclusive 	representative.
(d) 	Dominate or 	interfere with 	the
formation 	or 	administration of 	any 	employee
organization, 	or 	contribute 	financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join 	any organization 	in
preference 	to another.
5 In addition 	to finding 	the 3543.5(a) 	and 	(c) 	violations
mentioned 	above, 	the 	hearing 	officer 	dismissed 	the
Association's 	3543.5(b) 	and 	(d) 	charges. 	He concluded 	that
there 	was 	no 	denial of 	employee 	organizational 	rights 	that 	was
separate 	from 	interference 	arising 	from 	the 	violation 	of
section 3543.5 (c), 	and therefore the charge under
section 3543.5(b) 	should 	be dismissed. 	This 	conclusion may
have 	been 	in 	accord with PERB precedent 	at 	the 	time of 	the
hearing officer's decision (6/2/78), 	but 	is inconsistent with
subsequent 	decisions on the 	scope of 	section 	3543.5(b) 	in
connection with 	a concurrent violation of 	section 3543.5(c).
See, 	e.g., 	San Francisco Community College District 	(10/12/79)
PERB Decision No. 	105. 	For 	this 	reason 	the Board has decided
to sustain 	the 	section 3543.5(b) 	charge, 	even 	though 	the
charging 	party 	took 	no exception 	to 	the 	hearing 	officer's
dismissal. 	On the other hand, 	there 	is no reason to disturb
the 	hearing 	officer's 	dismissal 	of 	the 	charge 	under
section 	3543.5 (d) 	since 	no evidence 	was 	introduced 	to 	support
the 	alleged 	violation. 	The Association did 	not 	take 	exception
to 	the dismissal of 	this charge.
5

that the action of the 	individual school board members writing
the letter of commendation for placement 	in personnel files was
an action of the employer. 	In support of this position they
rely on California 	statutes prescribing procedures 	for 	school
board meetings 6 and conclude that 	the 	individual members,
acting on their own, did not take official, wrongful action in
this case. 	Second, the District argues that the same statutes
preclude a finding that the 	"no sanctions" agreement was a
result of meeting and negotiating, 	entitled to the protection
of EERA, 	because 	the 	three-person majority did 	not 	satisfy the
meeting requirements set forth in those statutes. 	Third, 	the
employer maintains that 	the work 	stoppage was not protected
concerted 	activity for 	the purpose of prohibiting 	the District
from commending other 	employees who did not participate 	in the
work stoppage. 	In this regard, 	the District reasons that a
letter of commendation as 	to certain employees does not
constitute discrimination against others. 	For 	all of these
reasons, 	respondent claims that it did not violate EERA.
Employer Action.
The hearing officer 	found 	that the action by the two school
board members authorizing 	the letter of commendation, 	and
placement of the letters 	in teacher 	files, was action by the
6 See, e.g., Education Code section 35145, et seq., as
well as Government Code section 54950, et seq.
6

employer. 	This 	conclusion 	should 	be 	affirmed. 	Unlike 	the
hearing officer, 	however, 	a 	finding of employer 	action 	is not
based 	solely on 	the 	fact 	that 	by 	failing 	to 	act 	when 	given
notice of 	the 	letter 	of commendation, 	the 	three 	school board
members 	who 	had 	originally 	approved 	the 	"no 	sanctions"
agreement 	effectively 	condoned 	the 	actions 	of 	the 	other
members. 	Additionally, 	a 	finding of employer 	status prior 	to
such 	condonation 	is 	based 	on 	the 	subject matter 	of 	the 	letters
(i.e., 	praise 	by governing officials 	for 	the professionalism of
non-striking 	teachers), 	the 	regular District 	stationery that
was used, 	the 	titles 	identifying 	the 	authors of 	the 	letter 	as
school board members, 	and 	the decision of District managerial
employees 	authorizing 	placement of 	the 	letters 	in personnel
folders. 	Under 	these circumstances employees 	in 	the District
had 	reasonable 	cause 	to believe 	that 	the District's 	personnel
were 	acting 	with 	the 	authority of 	the 	employer 	and 	that 	the
District 	is 	liable 	for 	their 	actions. 	(See Antelope Valley
Community College District 	(7/18/79) 	PERB Decision No. 	97.
Also see NLRB v. 	Donkin's Inn, 	Inc. 	(9th Cir. 	1976) 	532 F2d 138
[91 LRRM 3015]; 	Naccarato Construction Co. 	(1977) 	233 NLRB 1394
[97 	LRRM 1060].)7
7Comparable 	provisions 	of 	the 	federal 	Labor-Management
Relations Act 	(LMRA), 	29 U.S.C. 	151, 	et seq., may be used to
guide 	interpretation 	of 	EERA. 	Sweetwater 	Union High 	School
District 	(11/23/76) 	EERB Decision No. 	4. 	Also see Fire
Fighters 	Union v. 	City of Vallejo 	(1974) 	12 Cal.3d 	608.
Compare the NLRA definitions of employer 	(sec. 	2(2), 	29 U.S.C,
77

This 	determination of 	employer 	status 	is 	reached
notwithstanding 	several 	sections 	of 	the 	Education Code 	relied
upon 	by 	the District 	and 	by 	amicus 	to 	argue 	that 	the 	individual
board 	members' 	letter 	could 	not 	be 	construed 	as official 	action
of 	the 	school board 	itself. 	(Ante, 	n.6.) 	These 	statutes
provide, 	generally, 	for public meetings of school boards and
other 	governing 	institutions, 	with 	agendas 	to be published 	in
advance 	of 	the meeting, 	and 	time 	restrictions on actions 	that
may be 	taken 	at 	special 	sessions. 	Section 	3549.1 of EERA,
however, 	expressly exempts 	meeting 	and 	negotiating 	discussions
from 	these 	requirements:
All 	the proceedings 	set 	forth 	in
subdivisions (a) to (d), 	inclusive, 	shall
be 	exempt 	from the 	provisions 	of 	Sections
965 and 966 of 	the Education Code, 	the
Bagley Act 	(Article 	9 	(commencing with
Section 	11120) 	of Chapter 	1 of Part 	1 of
Division 3) 	and 	the Ralph M. 	Brown Act
(Chapter 	9 	commencing with 	Section 54950) 	of
Part 	1 of Division 2 of Title 	5, 	unless 	the
parties mutually 	agree 	otherwise:
(a) 	Any meeting 	and 	negotiating 	discussion
between a public 	school 	employer 	and 	a
recognized 	or 	certified 	employee
organization.
(b) 	Any meeting of a mediator 	with either
party or 	both 	parties 	to 	the meeting 	and
negotiating 	process.
152(2)) 	and agency determination 	(sec. 	2(13), 	29 U.S.C.
152(13)), 	with EERA's definitions of management employee
(sec. 	3540.l(g)) 	and employer 	(sec. 	3540.1(k)).
8

(c) 	Any hearing, meeting, or 	investigation
conducted 	by 	a 	factfinder 	or 	arbitrator.
(d) 	Any executive 	session of 	the public
school 	employer 	or 	between 	the public 	school
employer 	and 	its 	designated 	representative
for 	the purpose of discussing 	its position
regarding 	any matter 	within 	the 	scope 	of
representation 	and 	instructing 	its
designated 	representatives. 	[Emphasis
added.]
(Sections 	965 and 	966 of 	the 	former Education Code 	are 	now
sections 	35144 and 35145 of 	the 	reorganized code.)8
Nevertheless, 	whether 	the 	individual board members 	were
acting 	with 	proper 	official 	notice 	as 	the 	governing 	board 	is
not 	the 	question 	facing PERB 	in 	regard 	to 	the 	issue of 	employer
status. 	We 	need only 	inquire whether 	their 	actions, 	in
conjunction 	with 	the 	actions 	of 	other 	agents 	placing 	the
8 The 	District 	mistakenly 	relies 	on 	Education Code 	section
35164 	to contest a 	finding of employer 	status. 	That 	section
provides 	that 	a 	five member 	school board may act 	upon 	the
majority 	vote of 	three members. 	This 	requirement 	is 	consistent
with 	the 	finding, 	below, 	that 	the 	school board adopted 	the 	"no
sanctions" 	resolution on a three-two vote; 	but 	it 	is 	irrelevant
to 	the 	finding 	of 	employer 	liability 	for 	preparation 	and
distribution 	of 	the 	letters 	of 	commendation 	by 	persons 	acting
with 	the 	apparent 	agency 	authority of 	the District. 	Other
statutes 	referred 	to 	by 	the District 	add 	nothing 	to 	its
argument. 	Government 	Code 	section 	54952.6 	simply defines 	the
term 	"action 	taken" 	by 	a 	legislative 	body 	as 	a majority
decision, 	and 	section 54959 makes participation 	in an unlawful
meeting a misdemeanor 	if 	action 	is 	taken. 	Furthermore, 	even 	if
the 	individual board members, 	for 	example, 	acted contrary to
provisions of 	the Education Code, 	or provisions of 	the
Government Code 	that 	are 	not part of EERA, 	PERB administers 	and
enforces EERA, 	and 	not other 	statutes.
9

letters 	in personnel files, may be viewed, 	under EERA, 	as acts
of 	the 	employer 	in 	the 	eyes of 	the 	employees.9
Meeting 	and 	Negotiating 	Activity.
A similar 	analysis 	controls 	disposition of 	the 	District's
argument 	that 	the 	"no 	sanctions" 	agreement was 	not a product of
lawful meeting 	and 	negotiating procedures, 	subject 	to 	the
protection of EERA, 	because 	the 	school board 	resolution was 	not
adopted 	pursuant 	to 	statutory 	requirements 	controlling 	public
meetings, 	referred to above.
Rejection 	of 	the District's 	position 	is 	supported 	by
several 	facts 	and 	by 	interpretation of 	relevant 	provisions 	of
EERA. 	Negotiations 	between 	the 	parties 	started 	in May 	1977 	and
continued 	up 	to 	and 	after 	the 	time of 	the 	work 	stoppage 	in June
1977. 	The 	day 	before 	the District 	adopted 	its 	no-reprisals
resolution, 	the 	parties 	unsuccessfully 	attempted 	to negotiate 	a
similar 	settlement. 	Only 	after 	those 	preliminary discussions
did 	the District 	act 	at a public meeting, 	consistent with 	the
9 There 	is 	also no merit 	in 	the 	employer's 	argument 	that
upholding 	its 	liability 	in 	this 	case 	will place 	an 	unreasonable
burden 	upon 	the 	employer 	to disavow 	individual 	letters 	from the
public 	dealing 	with 	employee 	performance. 	The 	facts 	of 	this
case do not 	fall within the District's objection. 	Here, 	the
apparently 	official 	involvement 	of 	individual 	board 	members
(using 	their 	titles and District 	stationery) 	and 	the
involvement 	of 	other 	agents 	of 	the 	District 	(including 	the
superintendent 	and 	the 	chief personnel 	and 	negotiating
officer), 	rebut 	any suggestion 	that 	the 	letter 	of commendation
was 	submitted 	by persons 	apart 	from 	the 	employment 	relationship.
10

obligations 	of 	section 	3547(d) 10 and 	the 	leeway 	afforded 	by
section 	3549.1. 	(Ante 	p.8.) 	The Association's 	representative
was 	present 	at 	the 	school 	board 	meeting 	when 	the 	action 	was
taken, 	expressed 	consent 	with 	the 	conditional 	terms 	of 	the
proposal, 	and 	testified 	that 	the Association 	was 	satisfied 	that
agreement 	had 	been 	reached 	on 	the 	no-reprisals 	issue. 	In 	the
context 	of 	this 	case 	it 	was 	a 	reasonable 	and 	flexible 	response
to 	the 	strike 	situation 	for 	both 	parties 	to 	consider 	means 	of
ending 	the 	strike, 	even 	if 	a measure was 	approved 	the 	same 	day
it 	was 	put 	forward 	in 	public. 	The 	critical 	nature 	of 	an
interruption 	of 	school 	services, 	and 	the 	great 	public 	interest
related 	to 	strikes, 	justifies 	such 	a 	response.
10
On 	a 	negotiations 	issue 	related 	to 	the 	employer's 	argument,
it 	can 	be 	concluded 	that 	the 	"no 	sanctions" 	proposal complied
10 Section 3547, EERA's 	"public notice" provision,
provides:
(a) 	All 	initial proposals of 	exclusive
representatives 	and 	of 	public 	school
employers, 	which 	relate 	to matters within
the 	scope of 	representation, 	shall be
presented 	at 	a 	public meeting 	of 	the 	public
school 	employer 	and 	thereafter 	shall 	be
public 	records.
(b) 	Meeting 	and 	negotiating 	shall 	not 	take
place 	on 	any 	proposal 	until 	a 	reasonable
time 	has 	elapsed 	after 	the 	submission 	of 	the
proposal 	to 	enable 	the 	public 	to 	become
informed 	and 	the 	public 	has 	the 	opportunity
11

with 	section 	3540.l(h) ,11 as 	it was 	adopted 	by 	the 	school
with 	the 	intention of being 	put 	in writing, 	was 	accepted 	by 	the
Association 	representative 	at 	the meeting 	and was 	ultimately
executed 	by 	the Association's 	performance 	of 	the 	District's
to 	express 	itself 	regarding 	the 	proposal 	at
a meeting 	of 	the 	public 	school 	employer.
(c) 	After 	the public has had 	the
opportunity to express 	itself, 	the public
school employer 	shall, 	at 	a meeting which 	is
open 	to the public, 	adopt 	its 	initial
proposal.
(d) 	New 	subjects 	of meeting 	and 	negotiating
arising 	after 	the 	presentation of 	initial
proposals 	shall 	be made public within
24 hours. 	If a vote 	is taken on such
subject by the public school employer, 	the
vote 	thereon 	by 	each member 	voting 	shall
also be made public within 24 hours.
(e) 	The 	board may 	adopt 	regulations 	for 	the
purpose of 	implementing 	this 	section, 	which
are 	consistent 	with 	the 	intent of 	the
section; 	namely 	that 	the 	public be 	informed
of 	the 	issues 	that 	are 	being 	negotiated 	upon
and 	have 	full 	opportunity 	to express 	their
views 	on 	the 	issues 	to 	the public 	school
employer, 	and 	to 	know of 	the positions 	of
their 	elected 	representatives. 	[Emphasis
added.]
11 Section 	3540.1(h) 	defines 	"meeting 	and 	negotiating" 	as;
. 	. 	. meeting, conferring, negotiating, and
discussing 	by 	the 	exclusive 	representative
and 	the 	public 	school 	employer 	in a 	good
faith 	effort 	to 	reach 	agreement 	on matters
within 	the 	scope 	of 	representation 	and 	the
execution, 	if requested by either party, 	of
a 	written 	document 	incorporating 	any
agreements reached, 	which document shall,
when 	accepted 	by 	the 	exclusive
12

proposed conditions. 	Further, 	there was never 	any formal,
timely 	action 	by 	the 	school board 	disclaiming 	its 	original 	"no
sanctions" 	offer 	to the 	striking 	teachers. 	Given 	the
Association's 	justifiable 	reliance 	on 	the 	apparent 	authority of
the 	initial 	public proposal, 	the District 	is 	estopped 	at 	this
date 	from 	arguing 	that 	it 	was 	not 	"negotiating." 	To 	find
otherwise 	would 	sanction 	false 	pretenses 	on 	a matter 	of 	utmost
public 	importance.12
Violation 	of 	Section 	3543.5(a)
The 	hearing 	officer's 	conclusion 	that 	the 	letter 	of
commendation violated 	section 3543.5 (a) 	should be 	upheld. 	In
reaching 	this 	decision 	it 	is 	not 	necessary 	to evaluate 	the
representative 	and 	the 	public 	school
employer, 	become 	binding 	upon both parties
and, 	notwithstanding Section 3543.7, 	shall
not be 	subject 	to subdivision 	2 of Section
1667 of 	the Civil Code. 	The 	agreement may
be 	for 	a period of 	not 	to exceed 	three years.
12concurring Member 	Moore 	contends 	that 	the 	District's
proposal 	at 	a 	public meeting 	removed 	the 	resolution 	from 	the
bilateral 	character 	inherent 	in 	the 	statutory definition of
negotiations. 	First, 	the school board's conditional
resolution 	here 	was only one 	aspect 	of 	the 	process of
bargaining, 	offer 	and 	acceptance 	that 	took place 	before, 	during
and after 	the 	school board meeting. 	Second, 	her 	approach would
impose 	artificial 	timing 	and 	location 	requirements 	on 	the
negotiating parties. 	For 	example, 	if 	a school board 	sunshined
its 	initial proposal at a public meeting, 	and, 	after public
discussion, 	adopted 	the proposal 	at 	a 	subsequent public
meeting, 	at which 	the 	employee 	representative 	announced
acceptance, 	could 	there 	be doubt 	that 	the parties 	were 	engaged
in 	the process 	of 	negotiations 	without 	having 	to go elsewhere?
13

status of 	the 	work 	stoppage 	by Association members, 	an 	issue
raised 	by 	an 	unfair 	practice 	charge 	filed 	by 	the District, 	but
later 	withdrawn. 	The 	employer's 	conduct was 	unlawful whether
the 	strike was 	legal or 	illegal.
It 	is proper 	to conclude, 	as did 	the hearing officer, 	that
a 	violation of 	section 3543.5 (a) 	occurred 	because 	the
District's 	action 	was 	contrary 	to 	the 	terms 	of 	the 	"no
sanctions" 	resolution 	approved 	by 	the 	school board. 	The 	letter
interfered 	with 	the protected 	right 	of 	the 	employee
organization 	and 	its members 	to accept 	in 	good 	faith 	the 	terms
of 	that 	resolution 	by 	returning 	to work, 	resuming 	negotiations
and 	refraining 	from continuation of 	the 	strike. 	This 	right 	is
provided 	in 	section 	3543, 	giving 	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,"13 	as well 	as 	the 	right 	"to 	refuse 	to 	join or
participate 	in 	the 	activities of 	employee 	organizations...."
1 3 The 	potential 	impact 	of post-strike 	sanctions 	on
subjects 	within 	the 	scope of 	representation 	is 	apparent.
Employer 	sanctions 	could 	affect 	hours 	of 	employment,
compensation, 	or 	specific 	terms 	and conditions of employment,
including, 	as 	in this case, 	"procedures 	to be used for 	the
evaluation of employees." 	(Sec. 	3543.2.) 	The 	employer's
failure 	to negotiate 	in good 	faith 	over 	its 	deviation 	from 	the
"no 	sanctions" 	agreement 	is 	discussed more 	fully below as 	a
violation of sec. 3543.5 (c).
14

The 	finding 	of protected 	employee 	activity 	here 	flows 	from
our 	understanding 	of 	actions 	that may 	be 	taken 	to 	improve
employer-employee 	relations 	by 	ending 	disruption of 	the
educational process. 	The 	Legislature's 	recognition of 	this
consideration 	is 	reflected 	in 	section 	3549. 	That 	section
states 	that Labor 	Code 	section 923, 	which has 	been 	interpreted
to 	include a right 	to strike 	(see, 	e.g., 	Los Angeles Met.
Transit Authority v. 	Bro. 	Railroad Trainmen 	(1960) 	54 C.2d 684,
687-688), 	is not applicable to public school employees.
Whether 	or 	not 	inapplicability of Labor 	Code 	section 923 	is
also 	interpreted 	to permit 	public 	sector 	strikes, 	section 	3549
further 	provides 	that:
Nothing 	in 	this 	section 	shall 	cause 	any
court 	or 	the 	board 	to hold 	invalid 	any
negotiated 	agreement 	between 	public 	school
employers 	and 	the 	exclusive 	representative
entered 	into 	in 	accordance with 	the
provisions of 	this 	chapter.
Our 	analysis 	in 	this 	regard 	follows 	the mandate 	of 	the
Supreme Court 	in San Diego Teachers Association v. 	Superior
Court 	(1979) 	24 C.3d 	1,1 4 that PERB 	is 	charged with
responsibility 	for 	furthering 	"the 	public 	interest 	in
1 4 In 	San Diego, 	involving 	the 	same parties 	and work
stoppage 	before PERB 	in 	this case, 	the Supreme Court vacated
contempt 	findings 	imposed 	by 	a court 	against 	the 	striking
teachers, 	holding that PERB, 	not the court, 	has exclusive
initial 	jurisdiction 	to determine whether 	a 	strike 	is 	a
probable 	unfair 	practice 	under 	EERA, 	and 	to 	seek 	injunctive
relief, 	if warranted.
15

maintaining 	the 	continuity 	and 	quality 	of 	educational
services." 	(San Diego, 	supra, 	24 C.3d at 	11.) 	This conclusion
is 	also consistent 	with 	judicial 	enforcement of 	strike
settlement 	agreements, 	even 	if 	the preceding work 	stoppage was
arguably 	unlawful. 	See, 	e.g., 	City and County of 	San Francisco
v. 	Cooper 	(1975) 	13 C.3d 898, 	citing with approval East Bay
-
Municipal 	Employees Union 	v. 	County of Alameda 	(1970)
3 Cal.App.3d 	578.1 5
15 15 Durkin v. 	Board 	of 	Commissioners 	(Wise. 	Cir. 	Ct.
1969) 	[73 LRRM 2213] the court disapproved discriminatory action
following 	the 	settlement 	of 	a 	strike 	by a no-reprisals
agreement. 	The 	argument 	in 	favor 	of protecting 	strike
settlements 	was 	succinctly 	stated:
As 	a 	concession 	to 	achieve 	an 	end 	to 	the
dispute, 	the Council made 	a policy decision
that 	it would 	not 	be 	in 	the public 	interest
to 	take 	disciplinary 	action of 	any 	kind
against 	the men who engaged 	in 	the 	strike.
. 	. 	. 	Such clauses are universally
recognized 	as 	part of 	such 	settlements 	and
part 	of 	the 	collective 	bargaining process.
Many 	bitter 	and 	abrasive 	labor 	disputes 	with
alleged 	improprieties 	and 	illegal 	acts
against 	both 	parties 	have 	been 	terminated 	by
forgiveness 	clauses, 	and 	such provisions may
be 	as 	advantageous 	to 	the 	employer 	as 	the
employees. 	In our 	increasingly complex
society, 	the 	law should 	recognize 	and
encourage 	the 	peaceful 	solution of 	any
strife, 	whether 	it 	is 	in the 	arena of 	labor
relations or 	elsewhere. 	We 	are witnessing 	a
time 	of 	escalating 	disputation 	and we must
seek 	and 	lend 	support 	to 	the 	newest
techniques of 	settlement. 	(73 	LRRM at
2214-2215.)
16
15

Indeed, 	it 	is 	also established 	labor policy 	in 	the private
sector 	that 	a 	strike 	settlement 	agreement 	constitutes 	a
condonation 	of 	prior 	unprotected 	concerted 	strike 	activity,
thereby prohibiting 	an 	employer's 	reliance 	on 	the 	previous
conduct 	for 	the 	purpose of 	justifying 	future 	punishment. 	In
Confectionary Drivers v. 	NLRB 	(2nd Cir. 	1963) 	312 F.2d 	108
[52 LRRM 2163], 	for example, 	the court 	found 	that a strike
settlement:
condoned 	the prior 	unlawful 	actions 	of 	the
striking 	employees. 	Condonation 	requires 	a
demonstrated 	willingness 	to 	forgive 	the
improper 	aspect of a 	concerted 	action, 	to
"wipe 	the 	slate 	clean." 	After 	a condonation
the 	employer 	may 	not 	rely 	upon prior
unprotected 	activities 	of 	employees 	to deny
reinstatement 	to, 	or 	otherwise discriminate
against, 	them. 	(Citations omitted.)
(52 	LRRM at 	2166.)
(Also see Richardson Paint Co. 	226 NLRB 	673 	[93 LRRM 1351] 	and
cases cited therein, 	enf. 	(5th cir. 	1978) 	574 F..2d 1195 	[98
LRRM 	2951].)
Hence, 	whether 	the 	strike 	settlement agreement was 	itself
protected 	activity 	in 	the 	form of 	negotiating 	an 	end 	to 	the
strike 	and 	employees 	returning 	to work, 	or 	whether 	the 	strike
settlement 	condoned 	allegedly 	unlawful 	activity, 	the 	subsequent
action 	of 	the 	employer 	constituted 	a 	discriminatory 	reprisal
against 	those 	employees 	who 	had 	been on 	strike 	by 	favoring,
without 	justification, 	those 	employees who did 	not 	strike.
See, 	e.g., 	Rubatex Corp. 	(1978) 	235 NLRB No. 	113 	[97 LRRM 1534]
17

(cash bonus 	to non-strikers); 	Swedish Hospital Medical Center
(1977) 	232 NLRB 16 	[97 LRRM 1173] 	aff. 	238 NLRB No. 	154 	[98
LRRM 1467] 	(extra day off 	to non-strikers); 	Aero-Motive Mfg.
Co. 	(1972) 	195 NLRB 790 	[79 LRRM 1496] 	(cash bonus to
non-strikers).
This 	finding 	is not based, 	as was 	the hearing officer's, 	on
San Dieguito Unified 	School 	District 	(9/2/77) 	EERB Decision No.
22, 	but 	is premised on 	the 	superseding 	test set 	forth 	in
Carlsbad Unified 	School 	District 	(1/30/79) 	PERB Decision No.
89, 	and 	applicable 	to charges of discriminatory employer
action. 	Under 	the Carlsbad 	test 	the 	charging 	party need 	not
necessarily 	demonstrate 	actual 	discriminatory 	intent 	or 	actual
harmful 	impact 	in connection with 	the 	employer's 	conduct; 	for
example, 	a purposeful 	restriction upon 	a specific promotion
possibility 	in the District. 	Rather, 	the mere threat of
discrimination or 	reprisal 	is 	sufficient 	under 	the 	terms of our
statute. 	(See n.4, ante.) 	It is apparent, 	as well, 	that the
employer's 	letter 	may have 	a 	chilling 	coercive 	effect 	on
employees, 	causing 	them to 	refrain 	from 	any protected
organizational 	activity because 	of 	a 	fear 	that 	such 	involvement
would 	result 	in 	their 	being 	denied 	benefits 	available 	to other
employees. 	Finally, 	even 	if 	the harm to employees 	in 	this case
was 	slight, 	there was 	no evidence presented 	in 	the 	employer's
defense 	that 	its 	action was 	supported 	by 	legitimate 	business
justification.
18

Violation of Section 3543.5 (c).
The 	hearing 	officer's 	finding 	and 	conclusion 	that 	the
District 	violated 	section 3543.5 (c) 	of EERA should 	also be
affirmed. 	The District's 	bad 	faith 	bargaining 	was 	evident 	in
its 	failure 	to disclose 	the 	existence 	of 	the 	commendation
letter 	during 	the 	course of 	negotiations, 	despite 	the 	fact 	that
managerial 	agents 	of 	the District were 	aware 	of 	the 	existence
of 	the 	letter 	at 	that 	time. 	As 	the 	hearing officer 	noted, 	the
District 	had 	a duty 	to 	inform 	the Association 	negotiators 	even
if, 	as 	the employer contends, 	the negotiators did 	not 	first 	ask
about 	the 	existence of 	the 	letter. 	How could 	the Association
demand 	to 	negotiate 	a management 	action which 	it 	was 	not
informed 	of 	until 	long 	after 	the 	action was 	taken?16 The
subject matter 	in dispute 	between 	the parties, 	as 	the 	testimony
indicates, 	had presumably been 	settled, 	eliminating 	any need
for 	further discussion 	unless, 	as 	in this case, 	one of 	the
parties 	attempted 	to 	alter 	a previous 	understanding. 	For 	this
reason, 	too, 	the District's 	action amounted 	to a unilateral
change 	of 	a 	subject 	already agreed 	to by 	the 	parties,
potentially affecting 	a 	wide 	range 	of 	employee 	working
conditions 	without notice 	to or 	negotiations with 	the
exclusive 	representative, 	in violation of section 3543.5(c).
1 6 Still, 	once 	the Association 	knew about 	the 	letters of
commendation, 	it protested without success 	to 	the 	three board
members 	who 	adopted 	the 	original 	"no 	sanctions" 	resolution.
19

See 	San Mateo 	County Community College District 	(6/8/79) 	PERB
Decision No. 	94.17	17
Other 	Issues.
The preceding 	analyses of 	section 3543.5(a) 	and 	(c)
violations, 	contrary to the District's claim, 	is 	not precluded
by section 3541.5(b) 	of EERA, 	which provides:
(b) 	The Board 	shall 	not 	have 	authority 	to
enforce 	agreements 	between the parties, 	and
shall 	not 	issue a 	complaint on 	any 	charge
based 	of 	alleged 	violation 	of 	such 	agreement
that would 	not 	also constitute 	an 	unfair
practice 	under 	this 	chapter.
Thus, 	under EERA, 	where 	conduct which constitutes 	an unfair
practice would 	also be a violation of an agreement, 	the 	latter
fact 	does 	not 	prohibit PERB 	from deciding 	the 	unfair 	practice
charge. 	Absent 	a 	finding 	that 	the 	contractual 	issue 	should 	be
17	17 A conclusion 	that 	an 	employer's 	unilateral 	and
undisclosed 	post-strike 	discriminatory 	reprisal 	may 	also
constitute 	a 	refusal 	to bargain 	in good 	faith 	is 	consistent
with NLRB precedent. 	See, 	e.g., 	Rubatex Corp., 	supra; 	Swedish
Hospital Medical Center, supra; Aero-Motive Mfg. Corp., 	supra.
(See p.17-18, ante.)
Moreover, 	these cases 	support 	the 	further observation, 	in
response 	to 	an 	issue 	raised 	by the District, 	that 	it 	is 	not
necessary 	to 	find 	that 	the 	"no 	sanctions" 	agreement 	complied
with 	the 	notice 	and meeting 	rules 	of 	the 	negotiating process 	in
order 	to 	support 	a conclusion 	that 	a violation of 	section
3543.5(c) 	occurred. 	The District's 	failure 	to 	inform the
Association 	of 	the 	massive 	letter 	writing 	evaluation 	and 	the
employer's 	unilateral 	action 	demonstrated 	a 	failure 	to meet 	and
negotiate 	in good 	faith, 	independent of 	the 	contractual 	status
of 	the 	"no 	sanctions" 	understanding 	as 	an 	interim agreement
between 	the 	parties.
20

deferred 	to an arbitrator, 	pursuant 	to section 3541.5(a), 	the
Board 	is 	free 	to make 	its 	inquiry, 	as 	it has 	in this proceeding.
A 	final 	employer 	argument 	that 	failure 	to 	include 	the 	"no
sanctions" 	provision 	in 	the 	subsequent 	collective 	negotiating
agreement 	constituted 	a waiver 	of 	the 	issue 	by 	the 	Association
should 	also 	be 	rejected. 	The 	testimony 	from both 	parties
showed 	that 	they 	believed 	the 	issue 	had 	already 	been 	disposed
of 	before 	they 	faced 	each 	other 	in 	later 	negotiations, 	and 	that
there 	was 	no 	need 	for 	the 	collective 	agreement 	to expressly
incorporate 	the 	prior 	school board 	statement. 	A waiver 	of
rights 	here 	should 	not 	be 	found 	absent 	a clear 	and 	express
waiver 	by 	the 	Association of 	a matter 	that 	had 	been 	previously
resolved 	by 	the 	parties. 	See Amador Valley Joint 	Union High
. .
School District 	(10/2/78) 	PERB Decision No. 	74.
By: 	Gluck, Chairperson
Member Moore's 	concurrence begins 	on page 	22.
The 	Remedy and Order 	in 	this 	decision 	begin on Page 	28,
21

Barbara D. Moore, Member, 	concurring:
I 	agree 	with 	the 	Chairperson 	that 	the District 	violated
subsections 	(a) 	and 	(c) 	of 	section 3543.5 	by placing 	letters 	of
commendation 	in 	the personnel 	files 	of 	teachers 	who did 	not
participate 	in an Association-sponsored 	work 	stoppage. 	I
disagree, 	however, 	with portions of 	the Chairperson's 	analysis
of 	the 	bases 	for 	finding 	these violations.
In 	responding 	to the District's 	arguments, 	the Chairperson
rejects 	its 	position 	that 	the "no 	sanctions"resolution was 	not
the product of 	lawful meeting 	and 	negotiating. 	He 	finds 	that
the 	resolution 	complied with section 	3540.l(h), 	which defines
meeting 	and 	negotiating, 	and 	that 	the District 	is 	estopped 	from
arguing that 	it was not negotiating. 	(Ante, 	pp. 	11-13.)
Unlike 	the Chairperson, 	I do not 	find 	that 	the 	school
board's 	"no sanctions" 	resolution 	was 	the 	product of meeting 	and
negotiating.! 	Meeting 	and 	negotiating 	is 	a 	bilateral
process. 	(sec. 	3540.l(h).) 	I do not view the 	school board's
passage 	of what 	is 	essentially 	a 	take 	it or 	leave 	it 	"no
sanctions" resolution as 	the 	functional equivalent of meeting and
negotiating 	simply 	because 	an Association 	representative 	was
1 I do 	not 	base my view on 	the 	District's 	argument 	that
this 	is 	so because 	the 	resolution was 	not 	adopted pursuant 	to
Education Code 	requirements 	controlling 	public meetings. 	I
join 	the Chairperson 	in 	rejecting 	this 	argument.
22
' '

present 	at 	the 	school 	board's 	special meeting 	and 	because 	of
the parties' 	unwitting 	compliance with 	the public 	notice
provisions 	of 	the Act.2 	(See 	3547.) 	The 	inherent
reasonability of 	a package proposal 	does 	not 	relieve 	either
party 	from 	its 	duty 	to 	engage 	in 	the 	healthy 	give 	and 	take 	of
negotiating. 	(See NLRB v. 	General Electric Co. 	(2nd Dist.
1969) 	418 F.2d 	736 	[72 	LRRM 2530], 	cert. 	den., 	397 U.S. 	965 	[73
LRRM 2660].) 	Although 	the"no sanctions" 	resolution may have 	been
a reasonable means of attempting 	to 	settle 	the 	strike, 	I do not
see 	its 	unilateral 	adoption as 	reflecting 	the mutual give 	and
take which 	is 	the 	hallmark of 	the 	negotiating 	process.
While 	the employees' 	and 	the Association's performance of
the 	conditions 	specified 	in 	the "no 	sanctions" resolution may
well 	have 	converted 	the District's promise 	into 	an 	agreement
other 	than 	a 	negotiated 	agreement, 	cementing 	the 	District's
obligation 	to abide 	by 	its 	resolution, 	the 	finding 	of 	such 	an
agreement, 	or 	of a negotiated agreement, 	is not necessary to
2The 	Chairperson 	indicates 	that 	the 	Association
representative 	expressed 	consent with 	the 	terms 	of 	the
resolution. 	(Ante, 	pp.11 and 	12.) 	To the extent 	this 	implies
an affirmative 	statement of 	acceptance, 	I disagree with 	this
finding. 	Even 	if 	affirmative consent had 	been expressed, 	I
would 	not 	view 	that as 	transmuting 	the 	course of 	conduct 	into
meeting 	and 	negotiating. 	Denominating 	the 	course 	of 	conduct 	in
this 	case 	as 	meeting 	and 	negotiating 	raises 	substantial
questions 	as 	to 	when parties may make proposals 	away 	from
the 	negotiating 	table, 	what 	are the other 	side's obligations 	to
respond 	to 	such 	proposals 	and 	to what 	extent 	such 	conduct
satisfies 	the obligation 	to meet 	and 	negotiate 	in 	good 	faith 	or
evidences 	bad 	faith 	negotiating.
23

resolving 	the 	issue. 	In my view, 	the 	keen public 	interest 	in
the 	peaceful 	resolution of 	strikes, 	specifically embodied 	in
section 3549, 	requires a district 	to keep even 	its 	unilateral
"no sanctions" promises.
Section 	35493 	of 	the Act authorizes parties 	to negotiate
strike 	settlement 	agreements, 	including 	amnesty provisions 	for
strikers. 	While 	that 	section 	specifically protects 	a
"negotiated 	agreement," 	it 	does 	not preclude 	the 	validity of
other 	agreements, 	including 	those 	that 	strictly 	speaking 	are
not a product of 	the meeting 	and 	negotiating process. 	Nor 	does
the 	plain 	language of 	section 	3549 	preclude 	the 	enforceability
of 	a district's 	unilateral promise 	to 	refrain 	from 	taking
reprisals 	against 	strikers. 	Therefore 	I 	conclude 	that 	the
section 	does 	not 	draw only 	negotiated 	agreements 	within 	the
zone 	of 	statutory protection. 	The 	clear 	purpose of
3Section 3549 	provides:
The 	enactment of 	this 	chapter 	shall 	not 	be
construed 	as making 	the 	provisions 	of
Section 923 of 	the 	Labor 	Code 	applicable 	to
public 	school employees 	and 	shall 	not 	be
construed 	as 	prohibiting 	a public 	school
employer 	from making 	the 	final 	decision 	with
regard 	to 	all matters 	specified 	in
Section 	3543.2. 	Nothing 	in this 	section
shall 	cause 	any court or 	the 	board 	to hold
invalid 	any 	negotiated 	agreement 	between
public 	school 	employers 	and 	the 	exclusive
representative 	entered 	into 	in 	accordance
with 	the provisions of 	this 	chapter.
24

section 3549 	is 	to enable parties 	to end disputes 	that 	have 	led
to 	strikes, 	without continuing bitterness, 	and 	to put their
differences 	behind 	them 	in 	furtherance 	of 	the 	statutory 	goals
of 	EERA to 	promote 	the 	improvement 	of 	employer-employee
relations. 	(sec. 	3540.)4
The 	District 	is 	bound 	by 	its "no 	sanctions"resolution not
because 	it was a 	negotiated 	agreement, 	but because of 	the
Association's 	reliance 	thereon on behalf of 	its members, 	as
evidenced 	by 	the 	employees' 	return 	to work 	and 	the
Association's 	return 	to 	the 	negotiating 	table. 	To now 	allow
the District, 	which chose 	the method of 	settling 	the 	strike, 	to
avoid 	responsibility 	for 	its 	action 	and 	to 	renege 	on 	its
promise 	on 	the 	basis 	that 	the 	resolution was 	not 	the 	product of
meeting 	and 	negotiating 	and 	therefore 	not 	protected 	by 	3549
would 	laud 	form over 	substance 	and 	would 	completely 	undermine
the 	purposes 	of 	section 	3549 	and 	the 	general purposes 	of EERA
"to improve employer-employee relations" 	(sec. 	3540).
In 	a case 	involving 	these 	same parties, 	the California
Supreme 	Court 	declined 	to 	determine 	whether 	public 	school
employee 	strikes 	are 	legal. 	(San Diego Teachers Association v.
4 Section 3540, 	in pertinent part, 	provides:
It 	is 	the 	purpose of 	this 	chapter 	to promote
the 	improvement 	of personnel management 	and
employer-employee 	relations 	within 	the
public 	school 	systems 	in 	the 	State 	of
California. . . .
25

Superior 	Court 	(1979) 	24 C.3d 	1) 	In 	the 	instant case, 	the
parties 	withdrew mutual 	unfair 	practice 	charges 	that 	would 	have
required 	this Board 	to scrutinize 	the 	status 	of 	the
organization's 	strike. 	By withdrawing 	its charge, 	the District
in effect 	evidenced 	some 	intention 	to 	let 	the matter 	drop
rather 	than to subject 	itself, 	its employees, 	and the
Association 	to protracted 	unfair 	practice 	proceedings. 	Having
abandoned 	a course 	of 	conduct 	which 	would 	have 	enabled 	the
appropriate 	administrative 	body 	to 	determine 	whether 	the
Association 	work 	stoppage was 	lawful 	under 	EERA, 	the 	District
did 	not obtain 	any 	right 	to 	determine 	on 	its 	own 	the 	status 	of
the 	strike, 	nor 	any authority to remedy the 	strike, 	if 	it was
an unfair practice, 	by commending nonstrikers.
I 	agree 	with 	the 	Chairperson 	that whether 	the 	strike 	was
legal 	or 	illegal 	the District's 	actions 	violated
section 	3543.5(a) 	and 	essentially 	agree 	with 	his 	discussion on
this 	issue. 	The 	letters 	constituted 	discriminatory 	reprisals
against 	employees 	who 	had 	been on 	strike 	in violation of 	the "no
sanctions" resolution. 	EERA provides 	that employees have 	the
right 	to participate 	or 	refrain 	from participating 	in
organizational 	activity. 	(Sec. 	3543) 	Strike 	settlements 	are
authorized 	by 	section 3549. 	The 	employees, 	through 	their
exclusive 	representative, 	had a 	right 	to accept 	the District's
"no 	sanctions" resolution. 	The District reneged 	and 	treated
employees 	discriminatorily 	thus 	interfering 	with 	the 	exercise
26

of 	their 	right 	to accept 	the 	terms of 	the 	resolution, 	return 	to
the 	negotiating 	table 	and 	refrain 	from continuing 	the 	strike.
Further, 	the effect of 	the District's conduct 	is 	to signal
employees 	that 	if 	they 	engage 	in organizational 	activity 	they
run 	the 	risk 	of 	reprisals 	from 	their 	employer 	even 	when 	the
employer 	has 	promised 	there 	will 	be 	no 	reprisals. 	The 	clear
message 	is 	that participation 	in 	organizational 	activity
exposes 	the 	employee 	to 	potential 	reprisals 	and 	discriminatory
treatment. 	Thus 	the 	letters 	have 	a coercive 	chilling 	effect 	on
employees 	because 	employees 	may 	be 	intimidated 	from engaging 	in
any 	organizational 	activity 	for 	fear 	of 	being 	treated
disadvantageously 	compared 	to 	employees 	who 	do 	not 	engage 	in
such 	activity.5 Accordingly, 	I 	find 	that 	the 	District
violated 	section 	3543.5(a) 	of 	the Act.
Section 	3543.5(c)
I 	agree 	with 	the 	Chairperson 	that 	the 	District's 	conduct
amounted 	to a 	unilateral 	change 	in 	violation of 	section
3543.5 (c). 	The District had 	a duty to meet 	and 	negotiate with
the Association 	regarding 	any change 	in 	the 	"no 	sanction"
resolution 	and 	did 	not 	fulfill 	this 	duty.
I 	join 	in 	the Chairperson's 	opinion 	to 	the 	extent
consistent 	with my 	foregoing 	discussion.
~il/~
Barbara D. 	Moore, Member
Dr. 	Raymond J. 	Gonzales' 	dissent begins on page 	33.
5 I note 	in 	this 	regard 	that 	the 	employees' 	participation
in 	the 	strike 	has 	not 	been 	determined 	to 	be 	legal 	or 	illegal
under 	EERA. 	The 	Supreme Court 	specifically 	declined 	to 	address
this 	issue. 	(See 	San Diego Teachers Association 	v. 	Superior
Court, supra.)
27
---------

REMEDY
For 	the 	reasons 	set 	forth 	above 	the Board 	affirms 	the
remedy 	and 	order 	found 	by 	the 	hearing officer, 	and 	adopts 	his
order, 	as modified 	herein, 	as 	the 	order 	of 	the Board 	itself.1
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record of 	this case, 	it 	is 	found 	that 	the
San Diego 	Unified 	School 	District 	violated 	Government 	Code
section 3543.5(a), 	(b), 	and 	(c). 	The violation occurred when
the District, 	without 	notice 	to or 	negotiations with 	the
exclusive 	representative, 	placed 	letters of commendation 	in 	the
personnel 	files of 	teachers 	who did 	not 	strike 	in June, 	1977,
to 	the potential disadvantage 	of 	teachers 	who had 	been 	on
strike, 	thereby 	contradicting 	the District's previous pledge
that 	no 	sanctions 	would 	be 	taken against members 	of 	the
San 	Diego Teachers 	Association 	after 	the 	strike 	ended 	and
negotiations 	resumed. 	The 	Public 	Employment Relations Board
ORDERS 	that 	the 	San Diego Unified 	School 	District 	and 	its
representatives 	shall:
1 There is 	no 	evidence 	to 	support 	the 	District's 	argument
that 	the 	remedy 	requiring 	recision, 	nullification 	and 	removal
of 	the 	commendation 	letters, 	and posting of 	the Board's order,
will 	revive 	bitter 	feelings 	in 	the District. 	To the contrary,
failure 	to 	take 	such 	action will 	alter 	the 	terms of 	an 	agreed
upon, 	peaceful 	resolution of 	the work 	stoppage, 	potentially
re-opening 	old 	divisions 	and 	hostility. 	The 	order 	effectively
restores 	the 	status quo 	ante.
28

1. 	CEASE AND DESIST 	FROM:
(a) 	Imposing 	or 	threatening 	to 	impose 	reprisals
against 	teachers 	who participated 	in 	a 	work 	stoppage 	during 	the
week 	of 	June 	6, 	1977, 	or 	in 	any manner 	interfering 	with,
restraining, 	or 	coercing 	employees 	of 	the 	San 	Diego Unified
School 	District 	because 	of 	their 	exercise 	of 	rights 	guaranteed
by 	the 	Educational 	Employment 	Relations 	Act:
(b) 	Denying 	the 	San 	Diego Teachers 	Association 	rights
guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act.
(c) 	Failing 	or 	refusing 	to meet 	and 	negotiate 	in 	good
faith 	with 	the 	San Diego 	Teachers 	Association.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE ACT:
(a) 	Rescind, 	nullify 	and 	remove 	the 	letters 	of
commendation 	written 	by 	members 	of 	the 	Board 	of 	Education 	and
dated 	August 	23, 	1977, 	from 	the 	personnel 	files 	of 	all 	teachers
who 	received 	them;
(b) 	Immediately upon receipt of this 	decision,
prepare and post 	copies 	of 	this 	order 	at 	each of 	its
school 	sites 	for 	twenty 	(20) 	workdays 	in conspicuous
places, 	including 	all 	locations where notices 	to 	employees
are 	customarily 	placed;
29

(c) Within twenty 	(20) 	calendar days 	of the
date of 	service of 	this 	decision, 	notify 	the Los Angeles
Regional 	Director 	of 	the 	Public 	Employment Relations
Board of 	the 	actions 	it has 	taken 	to 	comply with 	this
order.
3. 	IT 	IS FURTHER ORDERED that 	the 	charge 	is 	dismissed
with respect 	to Government Code section 3543.5(d).
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
1 steph - BookBy 	J. 	Stephen 	Barber
Executive Assistant 	to 	the 	Board
30

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in unfair 	Practice Case No. 	LA-CE-194, 	in
which 	all parties 	had 	the 	right 	to participate, 	it 	has 	been
found 	that 	the 	San 	Diego Unified 	School 	District 	violated
Government Code section 3543.5(a), 	(b) , 	and 	(c). 	The violation
occurred 	when 	the 	District, 	without 	notice 	to 	or 	negotiations
with 	the 	exclusive 	representative, 	placed 	letters 	of
commendation 	in 	the 	personnel 	files 	of 	teachers 	who 	did 	not
strike 	in June 	1977, 	to 	the potential disadvantage 	of 	teachers
who 	had 	been 	on 	strike, 	thereby 	contradicting 	the 	District's
previous 	pledge 	that 	no 	sanctions 	would 	be 	taken 	against
members 	of 	the 	San 	Diego 	Teachers 	Association 	after 	the 	strike
ended 	and 	negotiations 	resumed. 	As 	a 	result 	of 	this 	conduct,
we 	have 	been ORDERED 	to 	abide 	by 	the 	following:
1. 	WE WILL NOT:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals 	against
teachers 	who 	participated 	in 	a 	work 	stoppage 	during 	the
week of June 	6, 	1977, 	or 	in any manner 	interfer 	with,
restrain, 	or 	coerce 	employees 	of 	the 	San Diego Unified
School 	District 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act.
31

(b) 	Deny 	the 	San Diego Teachers Association 	rights
guaranteed 	by 	the 	Educational Employment 	Relations Act.
(c) 	Fail or 	refuse 	to meet 	and 	negotiate 	in good
faith with 	the 	San 	Diego Teachers Association.
2. 	WE WILL:
Rescind, 	nullify 	and 	remove 	the 	letters of
commendations 	written 	by members 	of 	the 	Board 	of 	Education
and 	dated August 	23, 	1977, 	from the 	personnel 	files of 	all
teachers 	who 	received 	them.
SAN 	DIEGO 	UNIFIED 	SCHOOL 	DISTRICT
By: 	Superintendent
Dated:
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST 	REMAIN 	POSTED FOR TWENTY
(20) 	CONSECUTIVE DAYS 	FROM THE DATE OF 	POSTING AND MUST NOT BE
DEFACED, 	ALTERED, 	OR COVERED BY ANY MATERIAL.
32

Raymond J. 	Gonzales, Member, dissenting:
I 	do 	not 	agree 	that 	the 	authorship 	and placement 	of
commendation 	letters 	in 	the 	personnel 	files 	of 	non-striking
teachers 	constituted 	District 	action 	in 	violation 	of
subsections 	(a) 	and 	(c) 	of section 3543.5.
The 	threshold question 	in 	this 	case 	is whether 	the 	action
of 	the 	two 	school board members 	who 	authored 	the 	letters 	was
action by 	the employer. 	I 	believe 	it was not. 	The definition
of 	employer 	in 	section 	3540.l(k) 	includes 	"governing 	board 	of
the district." 	An examination of 	the 	acts 	alleged, 	in 	the
overall context of 	this 	case, 	leads me 	to the conclusion that 	a
majority 	of 	the 	school 	board 	clearly 	did 	not 	author 	nor
authorize 	the 	letter 	in question. 	The 	only official board
action 	taken was 	the 	adoption of 	the 	"no sanctions" 	resolution
at 	at 	a public meeting.1 	The 	vote was 	three 	to two, 	and 	the
two board members 	who 	rejected 	the 	resolution 	were 	the 	very 	two
who
1 Irrespective of the fact that PERB does not administer
statutes 	governing 	the 	public meetings 	and 	action of 	school
boards, 	I cannot 	ignore 	the notice, 	majority vote and other
requirements 	imposed on such boards. 	(See Educ. 	Code, 	sec.
35145 et seq.; 	see also Gov. 	Code, 	sec. 	54950 et seq.)
Converting 	the 	act of 	two 	individual 	board members 	into
official action 	by 	the 	whole 	board, 	taken 	in violation of 	the
public meetings 	laws, 	would 	subject 	the 	board members 	to
misdemeanor 	charges. 	I presume 	that 	school board members 	in
San Diego 	and 	elsewhere 	are 	well 	advised of 	the 	serious
consequences 	of 	ignoring 	the 	above 	cited 	statutes. 	While 	I
make 	no judgment 	as 	to whether 	the 	District 	in 	this case 	did or
did 	not 	comply with every 	requirement 	of 	the 	public meeting
statutes, 	it 	is clear 	that 	the 	board at no time actually
authorized 	the 	letters.
33

independently 	decided 	to 	send 	the 	commendatory 	letter 	to
non-striking 	teachers. 	This 	act 	directly contravened 	the
officially 	adopted 	resolution. 	In 	fact, 	the majority 	knew
nothing 	of 	the 	letter 	distribution 	until 	it 	was 	accomplished.
That 	the 	disgruntled 	school 	board 	minority 	intended 	their
action 	to 	circumvent 	the 	authority of 	the 	full board 	is
evidenced 	by 	their 	furtiveness 	in preparing 	and 	sending 	the
letter. 	Given 	the 	publicly 	stated 	position 	of 	the 	majority,
the 	minority 	undoubtedly 	recognized 	that 	the 	majority 	would
oppose 	the 	use 	of 	District 	stationery 	and 	board 	titles 	in 	an
act 	that 	wholly 	contradicted 	the 	spirit 	and 	intent 	of 	the 	"no
sanctions" resolution.
Under 	the circumstances, 	I do not 	find 	that 	the employees
had 	reasonable 	cause 	to 	believe 	that 	the 	two 	board members 	were
acting 	on 	behalf 	of 	the 	entire 	board. 	As 	Chairman Gluck 	stated
in his opinion 	in Antelope Valley, 	Community College 	District
(7/18/79) 	PERB Decision No. 	97:
Apparent 	authority 	results 	from conduct 	of
the 	principal upon which 	third 	persons 	rely
in dealing with 	agents. 	The 	liability of
the 	principal 	attaches 	where 	such 	reliance
was 	reasonable 	and 	results 	in a change 	in
position 	by 	the 	third party. 	(at p. 	11.)
Here, 	the 	school board's manifestations 	to employees
unequivocally 	expressed 	the 	board's 	opposition 	to 	sanctions 	of
any 	kind, 	other 	than loss of pay. 	Further, 	the board had 	no
opportunity 	to prevent 	the 	sending 	of 	the 	letter; 	it 	is
difficult 	to 	understand 	how 	the 	majority 	could 	have
34

prevented 	an 	act of which 	they were 	not 	aware 	until 	it was 	a
fait 	accompli. 	After 	being 	informed 	that 	the 	letters 	had 	been
sent, 	the majority expressed 	their 	displeasure 	to the
Association's 	Executive 	Director 	and 	also 	expressed 	concern
about 	reopening 	old wounds.2 	In 	addition, 	at 	least 	one
member 	of 	the majority 	conveyed 	his 	feelings 	to 	the minority.
With 	regard 	to 	the 	action of 	the 	District personnel who
placed 	the 	letters 	in personnel 	files, 	I am not persuaded 	that
this 	act was other 	than 	the 	fulfillment of 	a 	routine duty.
There 	is 	no 	evidence 	that District personnel could 	choose 	not
to accept commendation 	letters 	for 	filing. 	Since 	these 	letters
were 	clearly 	initiated 	by 	independent 	board members, 	and 	I 	have
concluded 	that 	the 	employer 	did 	not 	commit 	an 	unlawful
practice, 	I cannot 	find 	that District personnel acted
unlawfully 	as 	agents 	of 	the 	employer.
2 The 	facts 	in 	the 	present 	case 	contrast 	sharply with
those 	in Antelope, 	where 	the District designated managerial
employees, 	cooperated 	in 	their 	activities, 	accepted and acted
favorably 	on proposals 	presented 	by 	them, 	and 	created 	the
impression 	that 	the 	designees 	acted 	with District approval.
Under 	those 	facts, 	this 	board 	found 	that 	"the designees 	both 	in
fact 	and 	from the 	point 	of 	view of 	the 	employees 	did 	act as
agents of the District 	. 	. 	.."
It 	also 	appears 	that 	the 	standard 	for 	finding 	"apparent
authority" discussed in NLRB v. 	Donkin's Inn, 	Inc. 	(9th Cir.
1976) 	532 F.2d 138 	(97 LRRM 1060), 	calls 	for 	substantial
evidence 	that 	the principal permitted 	his 	agent 	to 	act 	for 	him
and 	that 	the 	agent's 	actions 	arose 	from and 	were 	in 	accordance
with 	the principal's manifestations 	to 	third parties. 	I do not
find 	that 	the 	facts 	in 	this case can 	support 	such 	a 	finding.
35

Notwithstanding 	my 	determination 	that 	there 	was 	no District
action 	here, 	I am compelled 	to assume 	so 	for 	purposes of
discussing 	the 	analysis 	employed 	by my 	colleagues 	in 	finding
the District guilty of committing 	unfair 	practices. 	I 	do 	so
because 	the majority's 	decision 	is yet 	another 	effort 	to pave
the 	way 	for 	an 	absolute 	ruling 	that 	strikes 	by public 	employees
are legal.
First, 	I 	agree 	with Member 	Moore 	that 	the 	no 	sanctions
resolution 	was 	not 	the 	product of 	meeting 	and 	negotiating.
Association 	representatives 	did 	not 	submit 	the 	no 	reprisals
resolution 	in 	the 	negotiating 	process 	but 	sought 	the 	signatures
of Board 	members 	individually. 	The Board 	did 	not 	respond 	to
this 	proposal 	but 	adopted 	its 	own 	resolution 	at 	a public 	board
meeting. 	Furthermore, 	no written document of 	the 	resolution
was executed 	by 	the parties 	nor 	was 	the provision 	included 	in
the 	final contract between 	them. 	(See 	sec. 	3540.l(h).)3
3 Section 3540.l(h) 	provides:
(h) 	"Meeting 	and 	negotiating" 	means
meeting, conferring, negotiating, and
discussing 	by 	the 	exclusive 	representative
and 	the 	public 	school 	employer 	in a good
faith 	effort 	to 	reach 	agreement 	on matters
within 	the 	scope 	of 	representation 	and 	the
execution, 	if 	requested by either party, 	of
a 	written 	document 	incorporating 	any
agreements 	reached, 	which document 	shall,
when 	accepted 	by 	the 	exclusive
representative 	and 	the 	public 	school
employer, 	become 	binding 	upon 	both parties
and, 	notwithstanding Section 3543.7, 	shall
not 	be 	subject 	to 	subdivision 	2 of
36

This 	is 	not 	to say 	that 	the 	District's adoption of 	the
resolution 	was meaningless, 	nor 	that 	I 	would 	condone 	District
action 	taken 	in 	violation of protected 	employee 	rights.
Clearly, 	under 	the 	authority of 	City 	and County 	of 	San Francisco
v. 	Cooper, 	supra, 	a public employer may determine 	the
appropriate 	legislative 	response 	to 	a 	strike. 	The 	employer's
action may 	not 	be 	invalidated, 	albeit 	the 	action was motivated
by 	a desire 	to end 	an 	illegal 	strike, 	where 	there 	are 	no
constitutional, 	legislative or 	charter proscriptions 	against
such strikes. 	(Cooper, 	supra, 	at 912-913.) 	Nevertheless, 	some
critical distinctions 	exist 	between 	the 	facts 	in Cooper 	and
those of 	the present case. 	First of 	all, 	the 	action 	taken 	in
Cooper 	conferred 	direct 	salary 	benefits 	on 	striking 	employees.
The 	challenge 	to 	that 	action 	was 	by 	a 	taxpayer 	who protested
that 	the 	"illegal" 	strike 	coerced 	the 	employer 	into 	an 	improper
response 	to 	the 	strike, 	that 	is, 	a resolution to 	increase
employees' 	pay. 	Secondly, 	the court 	in Cooper 	emphasized 	that
its 	analysis 	rested 	on 	the 	fact 	that 	"the 	resolution 	at
issue 	. 	. 	. 	[was] 	clearly legislative in nature." 	Cooper,
supra, 	at 911.) 	(Emphasis added.) 	Thus, 	the significance of
Cooper 	is 	the protection 	it affords 	public employers 	who
Section 	1667 	of 	the Civil Code. 	The 	agreement may be
for 	a period of 	not 	to exceed 	three 	years.
37

negotiate 	strike 	settlements.4 While 	it 	is 	obvious 	that
negotiating 	requires 	two parties, 	I 	find 	nothing 	in Cooper
which 	guards 	the 	right 	of 	employees 	to 	have 	strike 	settlements
enforced per 	se. 	Thus, 	that case 	is of 	limited value 	to
support 	the 	majority's 	holding 	that 	employees 	are 	entitled 	to
judicial 	enforcement of 	strike 	settlement 	agreements.
I 	also 	find 	unacceptable 	and 	untenable 	the 	Chairman's
reliance 	on NLRB precedent 	which provides 	that 	strike
settlements 	constitute 	condonation 	of 	prior 	unlawful 	strike
activity, 	"thereby prohibiting 	an employer's 	reliance 	on 	the
previous 	conduct 	for 	the 	purpose 	of 	justifying 	future
punishment." 	(Maj. opn., 	at p. 	17) 	A wholesale transfer of
that policy 	to 	the 	public 	sector 	amounts 	to a 	blatant
usurpation of 	legislative 	and 	judicial powers 	which 	are 	not
properly 	exercised 	by 	an 	administrative 	agency 	such 	as 	PERB 	and
is 	simply 	a 	backdoor 	route 	to 	the majority's 	desired 	conclusion
that 	public 	sector 	strikes 	may 	be 	adjudged 	legal 	by 	this
Board.
In any event, 	I would 	not 	find 	that 	the employer 	in 	this
case 	punished 	striking 	employees. 	Nor 	would 	I conclude, 	as does
the majority, 	that 	the 	letters 	discriminated 	against 	striking
employees. 	I 	find 	a 	substantial distinction between 	the
4 Moreover, 	Cooper 	acknowledges 	that 	striking 	employees
may be 	subject 	to a 	variety of 	administrative 	sanctions. 	(At
p. 	912.)
38

tangible, 	measurable 	benefits conferred 	on non-striking
employees 	in 	the 	cases 	cited 	by Chairman Gluck 	(see 	p. 	17-18)
and 	the merest possibility 	that 	the 	letters 	will be 	factors 	in
promotional consideration 	at 	some 	remote 	time 	in 	the 	future.5
Further, 	there 	is 	no causal connection between the 	letters
and 	the 	exercise 	of 	employee 	rights. 	I 	have 	already 	stated
that 	I do 	not 	find 	that 	the parties 	negotiated a 	no reprisals
agreement; 	but 	I 	also cannot 	agree 	with Member 	Moore's
interpretation of 	section 	3549. 	I 	believe 	that 	section 	3549
was 	enacted 	to 	further 	enhance 	the 	sanctity of 	agreements
reached 	between 	parties 	through 	the 	collective 	negotiations
process. 	When read 	in conjunction with section 3541.5(a),
which 	prohibits 	enforcement 	of 	contract 	provisions 	unless 	the
violation of 	the contract 	is 	also an unfair 	practice, 	the
logical conclusion 	is 	that 	the 	Legislature 	intended PERB 	to
have 	a 	limited 	rather 	than 	expansive 	role 	in 	enforcing
agreements 	between the parties. 	Thus, 	I 	see 	no protected 	right
to 	have 	the 	resolution 	enforced.
I 	also dissent 	from 	the 	majority's 	finding 	that 	the
District 	failed 	to 	negotiate 	in good 	faith. 	I 	find 	no grounds
whatsoever 	for a 	(c) 	violation. 	As I 	stated earlier, 	I am in
5 In 	fact, 	testimony 	indicates 	that 	some 	striking 	teachers
have 	received 	promotions 	since 	the 	letters 	were 	distributed,
reinforcing my 	belief 	that 	the 	allegations 	of 	potential 	harm
are 	so 	speculative 	as 	to barely 	rise 	to 	the 	level of
possibility, 	let alone 	"threat."
39

agreement 	with Member 	Moore 	that 	the 	parties 	did 	not 	engage 	in
meeting 	and 	negotiating 	concerning 	the 	adoption 	of 	the 	"no
sanctions" 	resolution. 	Therefore, 	for 	that reason I agree 	that
the 	District 	did 	not 	take 	an 	"inconsistent 	position" 	during 	the
course of 	negotiations. 	However, 	because 	I 	have concluded 	that
neither 	the 	authorship nor 	the 	distribution 	of 	the 	letters 	was
carried 	out 	by 	the 	school 	board 	itself 	or 	by 	agents 	acting 	with
board 	authority, 	I do not 	find, 	as 	the majority does here, 	that
the 	District 	acted 	unilaterally 	to 	change 	a 	previously 	agreed
upon 	item.
All of 	the 	evidence, 	including 	the 	District's 	adoption of
the 	no 	sanctions 	resolution, 	indicate 	to me 	that 	the District
had 	the 	desire 	to 	settle 	its 	differences 	with 	the Association
and 	reach 	agreement. 	Under 	the circumstances, 	I cannot
conclude 	that 	the 	District 	engaged 	in 	bad 	faith 	negotiations.
Byx 	nay 	Raymond J. Gonzales, Member
40

PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
OF 	THE 	STATE OF CALIFORNIA
SAN DIEGO TEACHERS ASSOCIATION/CTA/NEA,
Charging 	Party,
v.
SAN DIEGO UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
)
) Unfair 	Practice
Case 	No. 	LA-CE-194
PROPOSED DECISION
(6/2/78)	(6/2/78)
)
)
)
)
)
)
Appearances: 	Charles 	R. 	Gustafson, 	Attorney 	for San Diego
Teachers Association; 	Ralph 	Stern, 	Attorney for San Diego
Unified 	School 	District.
Before Jeff Paule, 	Hearing Officer.
STATEMENT 	OF THE CASE
On October 	18, 	1977, 	the 	San Diego Teachers Association/
CTA/NEA 	(hereafter 	"Association" 	or 	"charging party") 	filed an
unfair 	practice 	charge with 	the 	Public 	Employment 	Relations
Board 	(PERB). 	The Association 	alleged that 	the San Diego Unified
School District 	(hereafter 	"District" 	or 	"respondent") 	violated
Government Code sections 3543, 3543.1(a), 3543.5(a), 	(b), (c),
1
and 	(d) 	of the Educational Employment Relations Act 	(EERA) 	by
placing 	letters 	of 	commendation 	in 	the 	personnel 	files 	of
negotiating unit members 	who 	did not participate 	in 	a 	strike,
-1-
11All 	section 	references 	are 	to 	the 	Government 	Code 	unless 	other-
wise 	noted. 	Text 	of 	sections 	alleged to have been violated are
printed in 	full 	infra.
)

as 	a reprisal against those who did. 	On November 22, 	19 77, 	the
District 	filed an 	answer 	denying 	the 	illegality 	of its 	action.
On January 23, 	19 78, 	a hearing was held in San Diego,
California.
FINDINGS 	OF FACT
The 	San Diego Teachers Association/CTA/NEA is 	the exclusive
representative 	of the 	certificated employees 	in 	the 	San Diego
Unified School District. 	On or about May 10, 	19 77, 	the Association
and 	the District 	commenced meeting 	and negotiating. 	After 	several
negotiating 	sessions 	the parties 	terminated negotiations 	on
Sunday, 	June 5, 	19 77. 	There was no official declaration of
impasse by either party. 	See 	section 3548. 2
On Monday, 	June 6, 	19 77, 	about 55 percent of the District's
approximately 	5,700 	teachers 	withheld 	their 	employment 	services
from the District. 	Prior 	to 	the 	commencement of the work
stoppage 	the 	District 	obtained 	a temporary 	restraining 	order
from the San Diego 	Superior Court prohibiting the 	strike. 	The
Association and the 	teachers 	continued the 	strike. 	On Wednesday,
June 8, 	19 77, 	a preliminary injunction was 	issued by the court
against 	the 	San Diego 	Teachers Association 	and its 	officers.
-2-
2
Section 3548 of the EERA provides, 	in part, 	that: 	"Either a
public 	school 	employer or 	the 	exclusive representative may 	declare
that 	an 	impasse has been reached between 	the parties 	in negotia-
tions 	over matters within 	the 	scope of representation and may
request 	the board 	[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, 	. . . "
'

Notwithstanding 	this 	legal 	action by 	the District 	to 	end 	the
work 	stoppage 	the 	strike 	continued through Thursday, 	June 	9,
1977.3
On the third day of the strike, 	June 	8, 	19 77, 	Association
representatives 	sought 	the 	signatures 	of 	individual 	Board of
Education members 	on 	a no-reprisal 	agreement 	in 	exchange 	for
the teachers' 	return to work. 	Only one member 	of the school
board 	signed 	the 	proffered 	agreement.4
-3-
4
J Court 	proceedings 	did not 	end with 	the preliminary 	injunction. On
August 	8, 	1977, 	the court 	found the Association and its 	officers
in 	contempt 	of 	court 	for violating 	the 	preliminary 	injunction.
The matter 	is 	currently pending before 	the District 	Court 	of
Appeal.
44 The no-reprisal 	agreement 	submitted by 	the 	Association 	states
that:
"There 	shall be no 	reprisals 	taken 	against 	any
employee 	or student who 	participated in, 	supported,
or 	in 	any way 	aided the 	strike 	called by 	the Board
of Directors 	of 	the 	San 	Diego Teachers Association
and which 	commenced on June 	6, 	1977.
Said employees 	shall 	have 	equal 	opportunity 	for
transfers, 	summer school employment, 	promotion or
any other 	right 	of employees 	in 	the 	San 	Diego 	Unified
School District. 	Furthermore, 	there 	shall be no
letters 	of reprimand 	on 	any 	other 	disciplinary 	action
taken 	against 	the 	aforementioned employees 	and/or
students .
The Board of 	Education 	authorizes 	and 	directs
its negotiators 	and administrative 	agents 	to 	return
to 	the bargaining 	table 	and negotiate 	in 	good 	faith
with the 	San Diego 	Teachers Association. 	This
authorization 	carries with 	it 	full 	authority 	to
negotiate 	and make 	proposals 	and 	counter proposals
on 	all 	issues 	which 	are 	currently 	on 	the bargaining
table. 	This 	includes 	all 	issues 	both monetary 	and
non-monetary.
To 	facilitate 	the bargaining process, 	the 	Board
of Education 	agrees 	to utilize 	the 	services 	of 	the
California Conciliation 	Service."
-3-

At approximately 2:00 p.m. 	on the fourth day of the strike,
June 9, 	19 77, 	the Board of Education held a special school
board meeting. 	During this meeting the 	following motion was
made by board member Philip Halfaker:
That no sanctions other than loss of
pay be imposed on strike participants
on the condition that the 	strike end
today and that 	the 	union negotiators
return 	to 	the table 	tomorrow morning.
The motion passed on a 3 to 2 vote, with school board
president George Smith and member Dorothea Edmiston casting the
"no" votes.
The negotiating unit members 	returned to work the next 	day,
June 	10, 	1977, 	and meet and negotiate sessions 	reconvened that
day. 	A collective 	agreement was 	finally agreed to and signed
by the negotiators on September 9, 	19 77. 	The collective agree-
ment was ratified by the Association on September 15, 	19 77, 	and
by the District's Board of Education on September 20, 	19 77. 	The
collective agreement does not 	contain a no-reprisal 	clause. 	The
executive 	director of the Association, 	Louis 	Boitano, 	testified
that 	a no-reprisal 	clause was not 	discussed during negotiations
because "it was 	assumed that the agreement of June 9 was 	a good
faith agreement. 	. . . " 	The assistant superintendent for the
District, 	George 	Ellis, 	testified that 	there was 	no necessity
for including 	a no-reprisal 	clause 	in 	the 	agreement because
"the reprisal 	issue was 	related to 	the 	[school board's] 	adopted
statement. 	. . . "
While negotiations were in progress, 	on August 23, 	19 77,
the two school board members who voted against the June 9, 	19 77,
- 4 -

no-reprisal motion prepared and mailed a letter using the
District's 	official 	stationery. 	The 	letter was mailed to
those negotiating unit members who 	did not participate 	in the
work stoppage. 	The names 	and addresses 	of those 	teachers were
obtained by the board members by their having access 	to the
school 	district 	payroll 	records. 	The 	letter 	is 	reprinted, 	in
full, 	as 	follows:
August 23, 1977
"The 	true 	teacher 	defends 	his 	pupils 	against 	his
own 	personal 	influence. 	Be 	inspires 	self-trust. 	He
guides 	their 	eyes 	from 	himself 	to 	the 	spirit 	that
quickens 	him. 	He will 	have 	no 	disciple."
Orphic Sayings (1840) 	Amos Bronson Alcott
Dear Teacher:
Thank you for your dedication to the children of San Diego
during the recent teachers' 	strike. 	By continuing to fulfill
your contract in the face of many pressures exerted upon you to
join the ranks of those who had abdicated their responsibilities,
you demonstrated clearly and forcefully that you are a truly
professional teacher. 	Yours was a courageous stand.
We want you to know that we shall always be grateful to you
and to all your fellow teachers who faced up to their obligations.
And the children you served will remember it long after we are gone.
Truly yours,
/s/ George W. Smith, President
Board of Education
/s/ Dorothea Edmiston, Member
Board of Education
DE:dk
cc: 	Personnel Division
Employee Personnel File
-5-

Copies 	of 	the 	signed letter were placed 	in 	the personnel
files 	of approximately 2,500 	teachers. 	District 	administrators,
including the 	superintendent, 	were 	fully aware of the 	action 	taken
by the two 	school board members. 	According to George Ellis,
assistant superintendent 	(personnel division), 	the District
considered the placing of the 	letters 	in personnel 	files
"a routine matter." 	Mr. 	Ellis 	also 	testified that 	the 	letter
sent 	by 	the 	dissenting 	school 	board members would be 	treated just
the 	same as 	other 	letters 	of commendation, 	which are reviewed when
the District 	considers 	the 	employee 	for advancement 	to higher
positions.
The 	president of the Association 	testified that 	the
Association only 	received notification of 	the board members'
letter when 	individual 	employees 	called the Association's
office. 	This 	did not occur until 	late September or early
October, 	19 77. 	The Association apprised the other three school
board members 	of 	the 	letter 	and informed them that 	the Association
felt the 	action by Mr. 	Smith and Ms. 	Edmiston violated the no-
reprisals 	agreement of June 9, 	1977. 	The Association 	asked the
three board members 	if they were 	going 	to 	do anything about 	the
letters. 	The Board of Education took no 	action 	to have 	the
letters 	removed.
ISSUE
The issue 	to be decided is whether the District violated
the EERA when two Board of Education members placed letters of
commendation 	in 	the personnel 	files 	of non-striking teachers.
-6-

CONCLUSIONS OF LAW
The 	Action by 	the 	Two 	School 	Board Members 	C o n s t i t u t e d
Conduct 	by 	the 	San 	Diego 	Unified 	School 	D i s t r i c t .
Section 	3543.5 	s t a t e s 	t h a t 	it 	s h a l l 	be 	unlawful 	for 	a
p u b l i c 	school 	employer 	to 	engage 	in 	c e r t a i n 	u n f a i r 	p r a c t i c e s .
Section 	3540.1(k) 	defines 	p u b l i c 	school 	employer 	as 	a 	"governing
board 	of 	a 	school 	d i s t r i c t , 	a 	school 	d i s t r i c t , 	a 	county 	board 	of
e d u c a t i o n , 	or 	a 	county 	s u p e r i n t e n d e n t 	of 	s c h o o l s . "
In 	the 	i n s t a n t 	case 	the. 	respondent 	argues 	t h a t 	r e g a r d l e s s
of 	the 	substance 	of 	the 	u n f a i r 	p r a c t i c e 	charge, 	" t h e 	sending 	of
t h e 	l e t t e r s 	c o n s t i t u t e d 	a c t i o n 	by 	two 	members 	of 	t h e 	Board 	of
Education 	a c t i n g 	in 	t h e i r 	i n d i v i d u a l 	c a p a c i t i e s . " 	The. 	respond-
e n t ' s 	contention 	is 	t h a t 	the 	f u l l 	school 	board 	did 	not 	take 	any
action regarding the letters 	and that 	the letters 	are similar
to letters of commendation received from community groups such
as the Kiwanis Club.
The respondent's argument is rejected. 	Mr. 	Smith and
Ms. 	Edmiston wrote their letter on school district stationery
and signed their names not as individuals, but as members of the
school board. 	When the other three members of the school board
were apprised of Mr. 	Smith's and Ms. 	Edmiston's action they took
no action to retract the letters. 	Additionally, 	the superin-
tendent 	and other District 	administrators had full knowledge of
the actions of Mr. 	Smith and Ms. 	Edmiston and they, 	too, 	did
nothing to reverse the decision to send the letters 	or to place
them in the teachers' 	personnel files. 	The 	lack of any affirma-
tive action by the three board members and the superintendent
- 7 -

to remove 	the 	letters 	from the teachers' 	personnel 	files 	is 	a
clear 	indication 	that 	these 	individuals 	acquiesced 	in 	the 	action
by Mr. 	Smith and Ms. 	Edmiston.
Accordingly, 	the placing 	of 	the 	letters 	in question 	in
the personnel 	files 	of 	those 	teachers who 	did not 	participate
in the 	strike 	during 	the week of June 6, 	19 77, 	is 	found to be
conduct 	by 	"a public 	school 	employer" within the meaning of
sections 	3543.5 	and 3540.l(k).
Alleged Violation 	of Section 	3543.5(a).
Government Code section 	3543.5(a) 	states 	that:
It 	shall be unlawful 	for 	a public 	school
employer to:
Impose 	or 	threaten 	to 	impose 	reprisals 	on
employees, 	to 	discriminate or threaten to
discriminate 	against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of rights
guaranteed by this 	chapter 	[EERA].
The PERB has examined and interpreted this section in two
cases, 	San Dieguito Union High School District 	(9/2/77) EERB
Decision No. 	22 and Pittsburg Unified School District 	(2/10/78)
PERB Decision No. 47. 	In San Dieguito, 	the PERB concluded that
for a violation to be found it must be shown "at minimum" that
an employer acted either with 	"the 	intent 	to interfere with 	the
rights of employees" or that the employer's 	conduct 	"had the
natural and probable consequence of interfering with the employees
exercise of their rights. 	. 	. 	, 	notwithstanding the employer's
intent 	or motivation."
- 8 -

In the 	instant 	case, 	the 	inquiry is whether the action by
the District 	in placing 	the 	letters 	of commendation in 	the
personnel 	files 	of non-striking 	teachers 	was 	an 	action 	affecting
the 	teachers who 	did strike and if so, 	whether 	this 	action was
a 	reprisal 	against 	those 	teachers.
It 	is manifestly 	clear 	that 	the writing and placing of 	the
letters 	of commendation 	in 	the personnel 	files 	of non-striking
teachers was 	an 	action which affected those 	teachers 	who 	did
participate 	in 	the 	strike. 	Further, 	such action by 	the District
constituted a reprisal 	against 	those 	teachers 	who 	did participate
in the 	strike. 	Written under 	the pretext of a "typical 	letter
of commendation", 	the letter of August 23, 	19 77, 	can only be
construed as 	a veiled attempt 	to 	take reprisals 	of retaliatory
action against 	those 	teachers who 	chose 	to participate 	in 	the
strike. 	This 	conclusion is 	fortified on 	the 	fact that 	the
"letters 	of commendation" 	are 	to be 	considered when promotional
opportunities 	arise 	in 	the District.
This 	finding, 	that 	the 	letter of commendation in 	fact
constituted a 	reprisal 	against 	those 	teachers who 	participated
in the 	strike, 	is not determinative of a violation of section
3543.5(a), 	however. 	The remaining issue is whether there exists
the requisite nexus 	between 	the 	action by 	the District 	and the
exercise 	of rights protected by 	the EERA 	for 	the employees. 	See
San Dieguito Union High School District, 	supra.
The 	"protected activity" by 	the 	teachers 	was not 	their
participation in 	the 	strike, 	but 	their collective 	decision 	to
accept 	the 	terms 	and conditions 	of 	the District's 	resolution of
-9-

no reprisal 	and 	to 	agree 	to 	end 	the 	strike 	and resume meeting
and negotiating. 	If a strike occurs 	as 	a result of a breakdown
in communications between 	the parties, 	then 	clearly 	the 	teachers
have a right, 	protected by the EERA., 	to enter into an agreement
5with their employer 	to 	end the 	strike. 	One of the primary
purposes 	of the 	EERA is 	to promote 	the 	improvement 	of employer-
employee relations 	in the public 	school systems. 	One way of
improving employer-employee 	relations 	is 	to permit 	teachers 	to
enter into 	agreements 	to 	end strikes 	free 	from reprisals 	or
retaliatory 	action 	for any prior 	illegal 	conduct.
The requisite nexus 	in this 	case 	is 	clear. 	On June 9, 	1977,
the 	fourth 	day of the 	strike, 	the District 	school board passed
a motion 	in which no uncertain 	language 	stated 	that no 	sanctions
would be 	imposed on 	striking 	teachers 	if 	the 	strike 	ended on 	that
day 	and 	the Association's 	negotiators 	returned to 	the negotiating
table on June 10, 	19 77. 	The Association accepted the terms and
conditions 	of the 	resolution 	in good faith; 	the 	strike ended and
the Association resumed meeting and negotiating. 	On August 	23,
55 This 	conclusion 	is 	buttressed by 	the recent holding 	in City 	and
County of San Francisco v. 	Cooper 	(1975) 	13 Cal.3d 898. 	There
the California 	Supreme 	Court held that 	an 	agreement 	entered into
between 	a public 	employer 	and its 	employees 	to end an illegal
strike was not 	tainted by the 	illegality of the 	strike.
66The District, 	of course, 	does not have to agree to such an arrange-
ment. 	It 	can pursue its 	legal remedies 	in court to end the 	strike,
or 	it 	can file 	an unfair practice 	charge 	against 	the 	employee
organization when a 	strike 	allegedly has 	resulted 	in a 	termination
of negotiations. 	Cf. 	Fremont Unified School District, 	SF-CO-19, 	20
(4/14/78). 	Here the district 	did not pursue 	its judicial remedies
(although 	the 	San Diego 	Superior Court 	did on its 	own initiative).
Also, 	the District filed an unfair practice charge on May 26, 	19 77,
against 	the Association alleging a violation 	of 	the EERA in that
the Association was 	"threatening to 	call 	a strike." 	As 	part of a
settlement 	agreed to 	during the 	informal 	conference on 	this 	charge,
the District withdrew 	the 	unfair practice 	charge.
-10-
6

19 77, 	during subsequent meeting and negotiating sessions, 	reprisals
were 	taken 	against 	employees who participated in the 	strike 	in 	the
form of 	a 	letter 	of commendation 	to 	those 	teachers who 	did not
strike. 	The 	District's 	action 	clearly had 	the natural 	and
probable 	consequence 	of 	interfering not 	only with 	the 	teachers'
"protected right" 	to agree 	to 	end 	the 	strike, 	but 	also with their
good 	faith 	expectation 	that 	the 	exercise 	of 	that 	right would not
be 	subject 	to 	later reprisals.
For 	the 	foregoing reasons 	the District 	is 	found to have
violated section 	3543.5(a) 	by placing 	in 	personnel 	files 	of 	those
teachers who 	did not 	participate 	in 	the 	strike 	during 	the week 	of
June 6, 	19 77, 	letters 	commending them for not participating in 	the
strike.
Alleged Violation of Section 	3543.5(c).
Government Code section 3543.5(c) 	states 	that:
It 	shall be 	unlawful 	for 	a public 	school
employer to:
(c) 	Refuse or 	fail 	to meet 	and negotiate
in 	good 	faith with 	an 	exclusive 	representative.
The 	charging party 	contends 	that 	the breach 	of 	the no-
reprisals 	agreement by 	the District 	constituted 	"bad 	faith nego-
tiating" 	in that 	the violation of the 	agreement 	occurred during
negotiations 	and without 	the Association's 	knowledge.
The 	question of whether an employer 	is 	acting 	in 	good 	faith
during meeting 	and negotiating 	"must 	be 	determined 	in 	the 	light
of all 	relevant 	facts 	in 	the 	case." 	Joy 	Silk Mills 	v. 	NLRB
-11-
7
7
7This 	conclusion 	is 	not 	to be 	construed as 	asserting 	that 	the
strike 	itself was 	protected activity 	under 	the 	EERA.

(D.C. 	Cir. 	1950) 	185 F.2d 732, 	[27 LRRM 2012]. 	In the instant
case, 	the agreement between the parties 	provided that 	if the
teachers 	ended their 	strike 	the 	District would not 	impose 	any
sanctions 	or 	reprisals 	against 	them. 	Both parties 	presented
testimony 	that 	because 	of 	this 	agreement 	they 	felt 	that 	it was
not necessary 	to 	raise 	the "no 	reprisals" 	issue 	at the negoti-
ating table. 	Therefore, 	the collective 	agreement, 	which was
concluded on September 9, 	19 77, 	does not 	contain a no-reprisals
clause. 	It 	seems 	clear that 	since 	the 	letter in 	issue was
mailed to 	certain teachers 	on August 23, 	1977, 	and shortly
thereafter was placed in those teachers' 	personnel 	files, 	the
District was 	aware 	of 	the 	letter while negotiations 	were 	still
in progress.
The 	duty 	to 	furnish relevant 	information 	to 	the 	exclusive
representative 	to be 	used 	in negotiations 	usually 	arises 	only
after 	there has 	been 	a 	demand or request 	for such 	information.
In the 	instant matter, 	however, 	it was 	reasonable 	for the
Association 	to 	assume 	that 	the 	District would honor 	its 	commit-
ment 	in 	accordance with the school 	board's 	resolution of June 	9,
1977. 	Therefore, 	under the 	facts 	of this 	case, 	the District
had 	a 	duty 	to 	inform the Association of 	its 	action with 	respect
to 	a possible violation of the agreement. 	It 	is not known, 	of
course, 	whether 	the 	letter 	and a 	"no-reprisals 	clause" would
have been 	raised as 	subjects 	of negotiations 	had 	the Association
been 	informed of the District's 	action. 	It is 	clear, 	however,
that 	the 	failure 	of 	the District 	to 	inform the Association 	of
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its 	action of August 23, 	1977, 	while the parties were 	still
negotiating, 	undermined 	the 	integrity of 	the meeting and
negotiating 	process 	and 	constituted bad 	faith negotiating.
For the 	foregoing reasons, 	it 	is 	found that the District
has violated section 3543.5(c).
Alleged Violation of Section 3543.5(b) 	and 	(d).
Government Code section 3543.5(b) 	and (d) 	state 	that:
It 	shall be unlawful 	for a public 	school
employer to:
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by this 	chapter 	[EERA].
(d) 	Dominate or interfere with the 	formation
or 	administration 	of any 	employee 	organization,
or 	contribute 	financial 	or other 	support 	to 	it,
or 	in 	any way 	encourage 	employees 	to join any
organization in preference 	to 	another.
The Association argues 	that 	there 	is 	also 	a violation 	of
section 3543(b) and (d) .
Sections 	3543 	and 	3543.1 	guarantee 	definite 	rights 	to
employee 	organizations 	and to 	exclusive 	representatives 	such 	as
the right 	to 	use 	school bulletin boards 	and to 	released 	time 	for
meeting and negotiating. 	It 	is 	concluded that 	the 	legislative
purpose 	in 	including section 	3543.5(b) 	was 	to 	provide 	a mechanism
for enforcement of those rights, 	rather 	than 	to 	simply add another
statutory basis 	to 	any unfair practice 	found under 	section
3543.5(c). 	Therefore, 	the Association's 	contention that section
3543.5(b) 	has been violated is 	rejected since 	there was 	no
evidence 	that 	the 	District 	interfered with 	any 	rights 	guaranteed
by 	sections 	3543 	and 3543.1.
-13-

Also, 	the Association presented no 	evidence 	that 	the
District 	dominated or 	interfered with 	the 	foundation 	or
administration of the Association. 	Therefore, 	no violation
is 	found under section 	3543.5(d).
District's 	Defenses.
The District 	argues 	that 	even 	assuming that 	there is 	a no-
reprisal 	agreement 	between 	the 	District 	and 	the Association,
"the 	PERB 	is 	prohibited by 	law 	from enforcing 	it." 	The District
relies 	on section 3541.5(b), 	which states 	that:
The board 	[PERB] 	shall not have authority to
enforce 	agreements between the parties, 	and
shall not 	issue 	a complaint 	on 	any 	charge
based of 	alleged violation 	of 	such 	a 	agree-
ment 	that would not 	also 	constitute 	an 	unfair
practice under this 	chapter 	[EERA].
The PERB has 	not 	interpreted 	this 	section of the EERA.
While 	it may 	be 	argued that 	this 	section 	applies 	only 	to 	the
enforcement 	of a 	collective negotiations 	agreement 	it 	is 	not
necessary 	to 	rely on 	this 	interpretation herein. 	Section
3541.5(b) 	itself contains 	a proviso 	that 	if a violation of an
agreement 	is 	also an unfair practice, 	then the PERB has juris-
diction 	to hear and decide 	the 	case. 	If an unfair practice 	is
found, 	as 	in the instant 	case, 	the PERB would not be enforcing
an agreement between the parties, 	as 	the District 	argues, 	but
would be 	remedying an unfair practice. 	See 	section 	3541.5.
-14-
8
8
u
u
Section 3541.5 provides, 	in part, 	that: 	[T]he initial deter-
mination 	as 	to whether 	the 	charges 	of unfair practices 	are
justified, 	and, 	if so, 	what remedy is necessary to effectuate
the purposes 	of 	[the EERA], 	shall be 	a matter within the
exclusive jurisdiction of the [PERB]. 	. 	. 	.

The District 	also 	contends 	that 	the relief sought by 	the
Association, 	removal of the 	letters, 	is 	contrary to public
policy. 	The respondent 	states 	in its brief that, 	"[t]o 	order
the removal of the letters of commendation 	. 	. 	. 	would place
the 	Public 	Employment 	Relations 	Board 	in 	the position 	of
supporting, 	aiding and abetting 	an 	illegal 	strike."
The District 	is 	patently 	incorrect. 	The 	strike which
occurred during the week of June 	6, 	1977, 	was 	an extremely
unfortunate 	event which will not 	easily be 	forgotten. 	It was
the District, 	however, 	which revived the bitter 	feelings between
the District 	and its 	employees when 	it wrote 	the 	letters 	of
commendation. 	Removing 	any physical 	remnants 	of the 	strike,
such as 	the 	letters 	in question, 	not only better serves 	the
public 	interest, 	but 	also 	facilitates 	the parties 	to 	achieve
a more harmonious 	employer-employee 	relationship. 	This 	certainly
cannot 	be 	construed as 	supporting or 	aiding an alleged strike.
REMEDY
Section 3541.5(c) 	provides 	that:
The board 	[PERB] 	shall have 	the power to 	issue a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from the 	unfair
practice 	and to 	take 	such 	affirmative 	action,
including but not 	limited 	to 	the 	reinstatement
of employees with or without back pay, 	as will
effectuate the policies 	of 	this 	chapter 	[EERA],
The 	charging party 	urges 	that 	the 	proper 	remedy 	in 	this
case 	should be 	an 	order 	to 	remove 	the 	letters 	of commendation
from the personnel 	files 	of 	those 	teachers who 	received 	them.
-15-

As 	previously mentioned, 	the 	District 	contends 	that 	such an
order 	"would place 	the 	PERB 	in 	the position 	of supporting,
aiding 	and abetting 	an 	illegal 	strike."
One 	of the primary purposes 	of 	the EERA 	is 	"to 	promote 	the
improvement 	of personnel 	management 	and employer-employee
relations within 	the public 	school 	systems. 	. . . " 	Clearly,
the 	strike 	called by the Association 	against 	the 	San 	Diego
Unified 	School 	District 	did nothing 	to 	further 	this 	objective.
However, 	the 	strike is now history. 	Although 	the 	strike will
not be 	forgotten by 	those who were 	involved therein, 	it will
"effectuate the 	policies 	of the 	EERA" 	if the District 	is 	required,
as 	a remedy for its 	unfair practice, 	to 	take 	action 	consonant
with 	the 	understanding 	of 	the Association 	regarding 	the 	no-
reprisals 	resolution of June 9, 	1977. 	To 	achieve 	such 	a status,
the District will be 	required to remove 	the 	letters 	of 	commenda-
tion 	from the personnel 	files. 	Removal 	of the 	letters will be,
in effect, 	a retraction of 	the reprisals 	taken against 	the 	strike
participants, 	and this 	action by the 	District will help 	to
achieve 	the 	primary purpose 	of 	the 	EERA.
Accordingly, 	the District will be 	required to 	cease 	and
desist 	from imposing 	or 	threatening 	to 	impose 	reprisals 	on 	those
teachers 	who 	participated 	in 	the 	strike 	during 	the week 	of
June 6, 	19 77, 	and to remove the 	letters 	of commendation it
placed in 	the personnel 	files 	of 	those 	teachers who 	did not
participate 	in 	the 	strike.
-16-

Also, 	the District will be 	required to post 	copies 	of the
order. 	Posting copies 	of the 	order 	is 	appropriate 	in 	that 	it
will provide 	employees 	with notice 	that 	the District 	is 	being
required 	to 	cease 	and 	desist 	from the 	activity 	found 	to be
unlawful. 	It 	effectuates 	the purposes 	of 	the EERA that 	employees
be 	informed 	of 	the 	resolution 	of 	this 	controversy. 	A posting
requirement 	has 	been 	upheld by 	the U.S. 	Supreme 	Court 	interpreting
section 10(c) 	of 	the NLRA, 	which 	is nearly 	identical 	to 	section
3541.5(c), 	in NLRB v. Empress Publishing Co. 	(1941) 	312 U.S. 	426,
[8 LRRM 415]. 	A posting requirement has 	also been 	sanctioned 	in
California 	in 	interpreting 	the Agricultural Labor Relations 	Act.
See Pando1 	and Sons 	v. 	ALRB 	(1978) 	77 Cal.App.3d 822. 	Also 	in
New York, 	that 	state's 	highest 	court 	upheld a posting requirement
ordered by 	the 	New York 	PERB 	against 	a public 	agency. 	City of
Albany v. 	Helsby 	(1972) 	327 N.Y.S.2d 658, 	[79 LRRM 2457].
-
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and the entire 	record of this 	case, 	it 	is 	found that 	the 	San
Diego 	Unified 	School 	District 	violated Government 	Code 	section
3543.5(a) 	and (c). 	Pursuant to Government Code section 3541.5(c),
it 	is 	hereby 	ordered that 	the 	San 	Diego Unified School 	District
and its 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Imposing or 	threatening to 	impose 	reprisals 	against
teachers 	who 	participated 	in 	a work 	stoppage 	during 	the week 	of
June 6, 	1977, 	or in any manner interfering with, 	restraining, 	or
-17-

coercing employees of the San Diego Unified School District	coercing 	employees 	of 	the 	San Diego 	Unified 	School 	District
because of their exercise of rights guaranteed by the Educational	because 	of 	their 	exercise 	of 	rights 	guaranteed by 	the 	Educational
Employment Relations Act;	Employment 	Relations 	Act;
(b) Failing or refusing to meet and negotiate in good
faith with the San Diego Teachers Association.
2 . 	TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED
TO EFFECTUATE THE POLICIES OF THE ACT:
(a) Rescind, nullify and remove the letters of
commendation written by members of the Board of Education and
dated August 23, 1977, from the personnel files of all teachers
who received same;
(b) Prepare and post copies of this order at each of
its school sites for twenty (20) workdays in conspicuous places,
including all locations where notices to employees are customarily
placed;
(c) Notify the Los Angeles Regional Director of the
Public Employment Relations Board of the actions it has taken to
comply with this order.
3. IT IS FURTHER ORDERED that the charge is dismissed with
respect to Government Code section 3543.5 (b) and to any other
section included in the charge but not found to be a violation of
the EERA.
Pursuant to California Administrative Code 32305, title 8
this Proposed Decision and Order shall become final on June 30,
1978, unless a party files a timely statement of exceptions.
California Administrative Code 32300, title 8.
Dated: June 2, 1978
Jeff Paule
Hearing Officer
-18-
(b) 	Failing or 	refusing 	to meet 	and negotiate 	in good
faith with 	the 	San Diego 	Teachers 	Association.
2 . 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED
TO EFFECTUATE THE 	POLICIES 	OF THE ACT :
(a) 	Rescind, 	nullify and remove 	the 	letters 	of
commendation written by members 	of 	the 	Board of 	Education 	and
dated August 	23, 	1977, 	from the personnel 	files 	of 	all 	teachers
who 	received 	same;
(b) 	P r epare 	and post 	copies 	of this 	o r de r 	at 	each 	of
its 	school 	sites 	for 	twenty 	(20) 	workdays 	in conspicuous 	places,
including 	all 	locations ·where 	notices 	to 	employees 	are 	customarily
placed;
(c) 	Notify 	the Los Angeles 	Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board of 	the 	actions 	it 	has 	taken 	to
comply with 	this 	order .
3. 	IT 	IS 	FURTHER ORDERED 	that 	the 	charge 	is 	dismissed with
respect 	to 	Government 	Code 	section 	3543.S(b) 	and 	to 	any other
section 	included 	in 	the 	charge 	but not 	found 	to be 	a 	violation of
the 	EERA.
Pursuant 	to 	California Administrative 	Code 	32305, 	title 	8
this 	Proposed Decision and Order shall 	become 	final 	on June 	30,
1978, 	unless 	a party 	files 	a 	timely statement 	of 	exceptions .
California Administrative 	Code 	32300, 	title 	8 .
Dated : 	June 	2, 	1978
-18-
~
Jeff 	Paule
Hearing 	Officer