Escondido Union School District (PERB 0475E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ESCONDIDO ELEMENTARY 	EDUCATORS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
ESCONDIDO 	UNION 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	LA-CE-1792
PERB 	Decision 	No. 	475
December 	31, 	1984
Appearances: 	Michael 	R. 	White, 	Attorney 	for 	Escondido
Elementary 	Educators 	Association, 	CTA/NEA.
Before 	Hesse, 	Chairperson; 	Jaeger 	and 	Morgenstern, 	Members.
DECISION
HESSE, 	Chairperson: 	The 	Escondido 	Elementary 	Educators
Association 	(Association) 	appeals 	the 	regional 	attorney's
dismissal 	of 	its 	unfair 	practice 	charge 	alleging 	that 	the
Escondido 	Union 	School 	District 	(District) 	violated 	section
3543.S(a), 	(b), 	and 	(c) 	of 	the 	Educational 	Employment 	Relations
Act 	(EERA) • l	• s.1..
t.....
lEERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code
unless 	noted 	otherwise.
Section 	3543.5 	reads, 	in 	pertinent 	part, 	as 	follows:
It 	shall 	hi:> 	11n 1 :::iwf111 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals

For
	the 	reasons
	which
	follow,
	we
	affirm
	the
	regional
attorney's
	determination.
	We
	do, 	however,
	find
	the
	existence
of
	a
	procedural
	irregularity
	in
	the 	handling 	of
	this
	case
	and,
therefore,
	dismiss 	the 	charge 	with
	leave
	to
	amend.
FACTS
	AND
	PROCEDURAL
	HISTORY
On
	April
	27, 	1983,
	Kay
	Gibson,
	the
	chairperson 	of 	the
Association's
	bargaining
	team,
	addressed
	the
	Escondido
	Union
School
	District
	Board
	at
	a
	public
	meeting.
	During
	her
presentation,
	she
	was
	interrupted
	by
	Evelyn
	Penfield,
	the
president
	of 	the
	board.
Gibson's 	address,
	as 	recorded
	in 	the
	minutes
	of 	the 	school
board 	meeting,
	consisted
	of 	the 	following:
In
	the
	strike
	settlement
	of 	February
	1982
both
	parties
	agreed
	that
	the 	following 	items
could
	be
	reopened
	for 	bargaining 	for 	the
1983-84
	school
	year.
	The
	issues
	submitted
to
	factfinding
	which
	include 	concerted
activities,
	binding
	arbitration,
	work
	hours
provisions
	relating
	to 	the
	total
	number
	ofduty 	days
	and
	students
	days
	adjunct
	duty
hours, 	elementary
	preparation 	periods
	and
required
	number
	of
	on-site
	duty 	hours,
wages,
	Health
	and
	Welfare
	benefit's
	[sic]
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.
(b) 	Deny
	to
	employee
	organizations 	rightsguaranteed 	to
	them 	by
	this 	chapter.
(c) 	Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
good
	faith
	with 	an
	exclusive 	representative.
2

carriers.
	Consistently
	throughout
	that
bargaining 	period 	the
	Board
	stipulated 	that
the
	agreement
	must 	be
	for
	three 	years
	with
limited
	reopeners.
	In
	the
	interest
	of
settling
	the
	strike
	the
	teachers
	agreed
	to
that 	position.
	Now
	the
	Board
	has
	made
initial
	proposals 	in
	areas
	clearly
	outside
the
	scope
	of 	bargaining
	this
	year
	and
[Interrupted]
Penfield 	interrupted
	Gibson's 	address
	with
	the 	following
statement:
Excuse
	me,
	I'm
	sorry
	we
	are
	not
	allowed
	to
discuss
	bargaining 	in 	public.
	We
	have 	each
of
	us
	agents 	to
	go
	to
	the
	table
	to 	bargain.
An
	(sic)
	if
	you
	wish
	to
	speak
	to 	bargaining
items
	in
	a
	positive
	or
	negative 	fashion
(I'm)
	this 	is
	not 	the 	place
	to
	be
	doing
	that.
Gibson 	responded
	that
	"[y]ou 	(Penfield)
	are
	denying
	the
Association
	the
	right
	to
	give
	input 	then."
Penfield 	replied:
No,
	I'm 	not
	denying
	the 	Association 	the
right
	to 	give
	input.
	What
	I 	am
	saying 	to
you
	is,
	it
	is
	improper
	to 	bargain 	in
public.
	If
	you
	want
	to 	give
	your
	litany
	ofthe
	things
	that
	we
	agreed
	upon
	to 	bargain
that's
	fine,
	but
	if
	you 	want
	to 	give
	me
comments
	about
	what 	your
	position
	is
	and
	so
on
	then
	that 	is
	not.
	This
	is
	not 	the 	arena
for
	that.
	Thank
	you.
The
	board 	minutes
	do
	not
	reflect 	that
	any
	further
discussion
	took
	place,
	or
	that
	Gibson 	took
	the 	opportunity 	to
further
	address 	the 	board, 	or
	that
	she
	was
	denied
	an
opportunity 	to
	do
	so.
On 	May
	12, 	1983, 	the 	Association
	filed
	its
	unfair 	practice
charge 	against 	the
	District.
3

Originally,
	the 	charge 	included
	two
	allegations:
	one
concerning 	the
	District's
	refusal
	to
	permit
	Gibson
	to
	discuss
negotiations
	at
	the
	April
	27,
	1983
	board 	meeting
	(discussed
supra),
	and
	the 	other
	concerning
	statements
	a
	board
	member 	made
at
	the
	April
	11,
	1983
	board.
meeting.
On
	October
	17,
	1983,
	according
	to
	the
	Association,
	its
attorney
	was
	told
	by
	the
	regional 	attorney
	that
	the 	charge
stated
	a
	prima
	facie
	case
	with
	regard 	to 	the
	first
	allegation,
but
	not
	with
	regard 	to 	the
	second
	allegation.
	In
	this
discussion,
	the 	Association
	agreed
	to
	amend
	its
	charge,
deleting
	the
	second
	allegation.
2
On
	October 	21,
	1983,
	the 	Association
	filed
	an 	amended
unfair 	practice
	charge,
	deleting
	the
	second
	allegation.
Notwithstanding 	the 	alleged 	discussion,
	on 	November
	4,
1983,
	the 	regional 	attorney
	dismissed 	the
	amended
	charge.
DISCUSSION
The
	Association
	appealed 	the
	dismissal
	on
	two
	grounds.
First,
	the 	Association
	restates
	its
	allegation 	that
	Gibson
	was
prevented
	from
	addressing 	the 	school 	board
	on
	"matters 	involved
in 	negotiations
	between
	the
	parties
	and
	other 	matters
	relating
to 	employer/employee
	relations."
	The
	Association 	alleges
	that,
contrary 	to 	the 	findings 	of 	the 	regional 	attorney,
	"Gibson
2rn
	its
	appeal, 	the 	Association 	has 	not 	attemoted 	to
renew
	its
	second
	ailegation. 	Therefore,
	we
	need
	not 	determinewhether 	the 	charge
	stated
	a
	prima
	facie 	violation 	with 	regard
to 	the
	second
	allegation.
4

could
	not
	comment
	in
	any
	way
	on
	negotiations
	or
	on
	the 	items
discussed
	in
	negotiations."
	(Emphasis
	added.)
Second,
	the
	Association
	argues
	there
	was
	a
	procedural
	error
in 	the 	regional
	attorney's
	dismissal.
	It
	urges
	that
	"[e]ven
	if
the 	facts
	were 	found
	to
	be
	insufficient,
	the
	General 	Counsel
was
	obligated 	to 	request
	additional 	facts
	to 	support 	the
allegations."
	Such
	a
	request
	would
	have
	allowed
	the
Association
	either
	to
	amend
	the 	charge
	and
	assert 	additional
facts,
	or
	to
	withdraw
	the 	charge
	prior
	to
	dismissal.
Appearance
	at
	School
	Board
	Meeting
The
	Association
	asserts 	that
	it
	was
	prevented
	"from
addressing 	the 	school
	board
	on
	matters
	relating
	to
employer-employee
	relations
	other
	than
	for
	the 	purpose
	of
negotiating
	or
	litigating
	grievances
	or
	arbitrations."
The
	Public
	Employment
	Relations
	Board
	(PERB)
	has
	held
	that
employee
	organizations
	have
	the
	right
	to 	address 	school 	boards
at
	public
	meetings;
	such
	a
	right,
	however,
	is
	limited
	by
	their
concurrent 	obligation
	under
	the
	EERA
	to
	meet 	and
	negotiate
	with
the 	public 	school
	employer.
	An
	attempt 	to 	negotiate
	directly
with 	the 	school 	board
	is
	an
	attempt 	to
	bypass
	the
	District's
negotiators,
	and
	is
	an
	unfair 	practice
	under
	EERA.
	(San
	Ramon
Valley 	Unified 	School
	District
	(8/9/82)
	PERB
	Decision
	No.
	230,
and
	in 	Sierra 	Joint
	Community
	College
	District(9/22/83)
	PERB
Decision
	No.
	345.) 	In 	these 	cases,
	however,
	Association
representatives
	were
	not 	allowed 	to 	address 	the 	respective
boards 	at 	all. 
5

Unlike
	the
	San
	Ramon
	and
	Sierra
	cases,
	in
	the
	present 	case
the
	District
	did
	not
	prohibit
	the 	Association
	from
	addressing
the 	school
	board. 	Indeed,
	Gibson
	discuss~d 	the
	parties'
bargaining
	history
	without
	any
	interference
	by
	the
	board.
	Only
when
	Gibson
	began
	to
	discuss
	the
	District's
	initial
	proposals
was
	she
	interrupted.
	Penfield
	merely
	advised
	Gibson
	that
	the
board
	had
	elected
	to 	bargain
	only 	through
	its
	agents,
	and
	then
she
	told
	Gibson
	her
	understanding 	of 	the
	law;
	that
	is,
	she
	in
essence
	warned
	Gibson
	not
	to 	attempt 	to 	bargain
	with
	the
	board
directly.
The
	dissent
	argues
	that
	Gibson's
	comments
	constituted
"permissible
	advocacy
	rather
	than
	negotiations."
	But
	we
	cannot
know
	that,
	because
	Gibson
	chose
	not 	to 	continue, 	not 	because
she
	was
	forbidden 	to 	speak. 	Since
	Gibson's
	remarks
	at
	the
	time
the
	interruption
	occurred
	were,
	at
	best,
	ambiguous
	in
	their
legality,
	and
	since
	Penfield's
	warning
	in
	and
	of
	itself
	was
merely
	a
	statement 	of
	warning
	and
	not
	a
	prohibition
	from
speaking
	at
	all,
	Gibson 	had
	the
	right
	to 	continue 	her 	remarks.
That 	she 	did 	not 	continue
	was
	her
	choice,
	and
	it
	would 	be
improper
	to
	fault
	the
	employer
	on
	the 	basis 	of
	what
	she 	might
have
	said.
Accordingly,
	we
	find
	that
	the 	Association 	failed 	to 	allege
facts 	sufficient
	to
	state
	a
	prima
	facie 	violation 	of
	EERA.
The
	Dismissal 	Without 	Leave
	to
	Amend
After 	finding 	that
	the 	Association 	failed 	to 	allege
6

sufficient 	facts 	to 	state 	a 	prima 	facie 	case, 	the 	regional
attorney 	dismissed 	the 	charge 	without 	leave 	to 	amend. 	The
Association 	asserts 	that 	the 	general 	counsel 	must 	allow 	the
charging 	party 	an 	opportunity 	"to 	amend 	the 	charge 	to 	cure 	any
perceived 	deficiencies."
3PERB 	Regulation 	32621 	does 	allow 	a 	charge 	to 	be
amended. 	The 	Association 	did 	file 	an 	amended 	charge, 	but 	only
to 	delete 	its 	second 	allegation. 	The 	Association 	claims 	that
it 	did 	not 	rec~ive 	a 	warning 	that 	a 	dismissal 	was 	going 	to 	be
issued. 	The 	regulations 	do 	not 	require, 	nor 	even 	address 	the
issue, 	of 	whether 	the 	general 	counsel 	must 	give 	such 	a 	warning.
It 	appears, 	however, 	that 	the 	regional 	attorney 	possibly
mislead 	the 	charging 	party 	into 	believing 	that 	its 	charge 	as 	to
the 	April 	27 	meeting 	stated 	a 	prima 	facie 	case 	when, 	in 	fact,
it 	did 	not 	so 	state. 	On 	the 	peculiar 	facts 	of 	this 	case, 	to
cure 	any 	possible 	irregularity, 	we 	will 	dismiss 	the 	charge 	with
leave 	to 	amend 	within 	30 	days 	of 	issuance 	of 	this 	decision.
3Regulation 	32621 	states:
Amendment 	of 	Charge. 	Before 	the 	Board 	agent
issues 	or 	refuses 	to 	issue 	a 	complaint, 	the
charging 	party 	may 	amend 	its 	charge 	pursuant
to 	the 	requirements 	specified 	in 	Section
32615.
7

ORDER
Based
	upon
	the 	foregoing
	findings 	of
	fact
	and
	conclusions
of
	law,
	and
	the
	entire
	record 	in
	this
	case,
	the
	Escondido
Elementary 	Educators
	Association's
	charge,
	LA-CE-1792,
	is
DISMISSED
	WITH 	LEAVE
	TO
	AMEND.
Jaeger,
	Member,
	concurring:
	Based
	upon
	my
	reading
	of
the
	facts
	alleged
	in
	the
	Association's 	unfair 	practice
	charge,
I
	would
	find
	that
	its
	spokesperson
	was
	attempting 	to
	negotiate
directly
	with 	the 	governing 	board. 	Therefore,
	I
	find
	that
	the
District's
	denial 	of
	her
	right
	to
	speak
	did 	not
	constitute
	a
prima
	facie 	violation of
	the
	Act.
I
	agree 	with 	Chairperson 	Hesse's
	rationale 	for 	dismissing
the 	charge 	with 	leave 	to
	amend
	to
	cure
	any
	possible 	procedural
defects 	in
	the 	processing
	of
	the 	charge.
Member
	Morgenstern's 	dissent 	begins 	on 	page 	9.
8

Morgenstern,
	Member,
	dissenting:
	The
	Association's
	charge
alleges 	that
	Gibson
	was
	exercising
	her
	"protected
	right
	to
	make
a
	presentation
	on
	behalf
	of 	the
	exclusive
	representative"
	and
"was
	not 	attempting
	to 	negotiate"
	when
	that 	right
	was
	denied
	by
Penfield.
	These
	allegations
	are
	amply
	supported
	by
	the
transcript
	of 	the
	meeting
	which
	is
	attached 	to 	the
	charge
	and
quoted
	in
	pertinent 	part
	in 	the 	majority 	decision.
	Thus,
Gibson's 	a~tual
	remarks
	contain
	nothing
	which
	could
	be
considered
	negotiating
	so
	as
	to
	forfeit
	their
	protected
	status,
while
	Penfield's
	actual
	comments, 	on
	their
	face,
	deny
	Gibson's
right
	to
	engage
	in
	such
	permissible
	advocacy.
My
	colleagues 	ignore
	both
	these 	uncontroverted
	facts
	and
well-established
	law
	to 	find
	no
	prima
	facie 	violation
	in
	these
circumstances.
PERB
	has
	recognized
	that
	an 	employee
	organization's
	right
to 	represent
	its
	members
	necessarily
	includes
	a
	right
	to
advocate
	and
	present
	its
	position
	on
	matters 	of
	employment
relations 	at
	public
	meetings 	of 	the 	school 	board.
	San
	Ramon
Valley 	Unified
	School
	District
	(8/9/82)
	PERB
	Decision
	No.
	230.
Matters 	of
	employment
	relations
	which
	may
	properly
	be
	addressed
to 	the
	school 	board
	include, 	but 	are 	not 	limited 	to, 	negotiable
subjects 	within 	the 	scope
	of 	representation. 	Sierra 	Joint
Community
	College
	District
	(9/22/83)
	PERB
	Decision
	No.
	345.
Further,
	we
	have
	previously
	considered 	the 	very 	circumstances
at 	issue 	here,
	and 	held 	that
	a
	representative 	of
	an 	employee
organization
	may
	lawfully
	comment 	on
	the 	course 	and
	progress 	of
9

negotiations
	which
	are
	underway,
	so 	long 	as
	she 	does
	not
intentionally
	or
	inadvertently 	negotiate
	directly
	with
	the
school
	board, 	thereby
	bypassing
	and
	undermining
	the
negotiations
	process.
	Westminster 	School
	District
	(12/31/82)
PERB
	Decision
	No.
	277.
Thus,
	the
	preliminary 	issue
	here
	is
	whether
	Kay
	Gibson's
statement
	constitutes
	negotiations.
	In
	making
	this
determination 	in
	Westminster,
	we
	carefully
	reviewed
	the
extensive 	statements 	regarding
	negotiations
	made
	by
	the
association 	representatives 	there
	and, 	based
	on
	the 	following
considerations,
	concluded
	that
	they
	constituted
	permissible
advocacy.
1
[The 	commentsJ
	merely
	summarized 	and
explained 	the
	Association's
	most
	recent
proposal,
	adding
	nothing
	which 	had
	not
	been
presented
	and
	discussed
	at
	the 	bargaining
table.
	His 	language
	was
	too
	general 	to
	be
considered
	realistically
	as
	an
	offer.
	Such
statements
	at
	a
	public
	meeting
	require
	no
direct
	response
	from
	the
	board
	and
	cannot
	be
viewed
	as
	substitutes
	for 	the 	give
	and
	take
of
	negotiations.
In
	addition,
	both
	Mann
	and
	Kaelter 	expressed
the
	Association's 	willingness 	to 	negotiate
and
	participate
	in 	mediation
	and
	urged
	theboard
	to
	become
	directly
	involved 	in 	the
negotiation
	and
	mediation 	process.
	They
	did
not,
	however,
	refuse 	to
	meet
	with 	the 	board's
negotiator
	or
	other 	representative.
lThe
	factors 	considered 	in 	Westminster 	are 	those
	whichhave 	long 	been
	applied 	to 	the 	analogous 	employer
	right 	to
communicate
	its
	position
	on
	negotiations 	directly 	to
	its
employees. 	See,
	e.g.,
	Procter
	& Gamble 	Mfg. 	Co.
	(Post 	Ivory)(1966) 	160
	NLRB
	334, 	340; 	Wantagh 	Auto
	Sales, 	Inc.
	(1969) 	177NLRB
	150;
	NLRB
	v. 	J.
	H. 	Banek 	Co. 	(5th 	Cir.
	1970) 	424
	F.2d 	634;
Obie
	Pacif~Inc.
	(1972) 	196
	NLRB
	458, 	459 	[80
	LRRM
	1169].
10

..• 	Nothing 	was 	said 	to 	disparage 	the
District's 	negotiator 	or 	to 	undermine 	the
board's 	confidence 	in 	him ....
In 	sum, 	the 	statements 	of 	the 	Association
representatives 	evidence 	no 	intent 	to
obstruct 	the 	negotiation 	and 	mediation
process 	but, 	rather, 	indicate 	a 	good 	faith
desire 	to 	facilitate 	and 	expedite 	it.
Here, 	when 	Gibson 	was 	interrupted, 	her 	sole, 	allegedly
objectionable 	statement 	was, 	"Now 	the 	Board 	has 	made 	initial
proposals 	in 	areas 	clearly 	outside 	the 	scope 	of 	bargaining 	this
year 	••.• " 	This 	brief, 	innocuous 	comment 	on 	the 	District's
proposals 	does 	not 	offer 	a 	counterproposal, 	requests 	no
response 	from 	the 	board, 	and 	says 	nothing 	to 	disparage 	the
District's 	negotiator, 	to 	undermine 	the 	board's 	confidence 	in
him, 	or 	to 	otherwise 	obstruct 	the 	negotiations 	process. 	Thus,
her 	comments 	constitute 	permissible 	advocacy 	rather 	than
negotiation, 	and 	are 	well 	within 	the 	Association's 	right 	to
represent 	its 	members.
Member 	Jaeger's 	glib 	characterization 	of 	Gibson's 	statement
as 	an 	attempt 	to 	negotiate 	rests 	on 	pure 	speculation 	amounting
to 	a 	flagrant 	prior 	restraint 	of 	speech 	and 	represents 	a
radical 	departure 	both 	from 	traditional 	concepts 	of 	negotiation
and 	from 	the 	specific 	standard 	articulated 	in 	Westminster.
Chairperson 	Hesse 	asserts 	two 	apparently 	inconsistent 	views
of 	Gibson's 	comments. 	On 	the 	one 	hand, 	she 	finds 	it 	impossible
to 	determine 	the 	legality 	of 	what Gibson 	actually 	said 	without
knowledge 	of 	''what 	she 	might 	have 	said" 	if 	permitted 	to
11

continue.
	On
	the 	other
	hand,
	she
	finds
	that
	"Gibson 	had
	the
right
	to 	continue
	her 	remarks,"
	necessarily
	acknowledging
	that
the 	statement
	does
	not
	constitute
	negotiation.
Remarkably, 	however,
	the 	Chairperson 	then
	finds
	that
	Gibson
freely
	"chose
	not
	to 	continue."
	As
	the
	transcript
	of 	the
school
	board 	meeting
	indicates,
	the
	chair,
	board
	President
Penfield, 	interrupted
	Gibson
	almost 	as
	soon
	as
	the
	word
"bargaining"
	was
	mentioned
	and
	told
	her
	that
	"we
	are
	not
allowed
	to 	discuss
	bargaining 	in
	public."
	(Emphasis
	added.)
When
	Gibson
	protested,
	she
	was
	told
	that,
	"if
	you
	want
	to 	give
me
	comments
	about
	what 	your
	position
	is.
	[t]his 	is
	not 	the
arena 	for
	that."
	Having 	been
	interrupted
	and
	twice
	incorrectly
informed
	that
	the
	subject
	she
	wanted
	to 	address 	could 	not
	be
discussed
	or
	commented
	on, 	Gibson 	spoke
	no
	more.
On
	this
	evidence, 	the 	Chairperson
	has
	decided
	that
	Gibson
was
	not
	forbidden 	to
	speak
	but 	quieted
	herself 	voluntarily.
	It
appears
	that
	an 	employee
	representative
	who
	would
	exercise 	the
right
	to 	address
	a
	school 	board
	on 	an
	appropriate 	matter
	must
refuse
	to
	be
	silenced
	until
	bound, 	gagged 	and
	dragged
	from
	the
podium
	before 	the 	Chairperson
	will
	find
	a
	prima
	facie 	case.
I
	fear 	this
	Decision
	will
	do
	little
	to
	enhance
	the
	demeanor
of
	future 	public 	school
	district
	board 	meetings 	in
	this 	State.
As
	to 	the 	Chairperson's 	curious 	observation 	that
	"it
	would
be 	improper 	to
	fault
	the 	employer
	on
	the 	basis 	of
	what 	she
[Gibson] 	might 	have
	said,"
	one 	could 	hardly 	disagree.
	But
	the
12

question
	before
	us
	is
	not
	related
	to
	what
	might
	have
	been
	said
or 	any
	other
	such
	conjecture;
	rather
	we
	must
	decide
	if
	the
employer
	explicitly
	and
	illegally
	prevented
	Gibson
	from
addressing 	the
	school
	board
	even 	though 	she
	had
	said
	nothing
improper.
Had
	Penfield
	merely
	warned
	Gibson
	that
	she
	would
	not
bargain
	in
	public,
	the 	school
	board
	president
	would
	have
	acted
well 	within 	the
	law.
	But
	her
	actual
	remarks
	were
	not
	nearly
	so
limited.
	Rather,
	she
	said 	three
	times
	in 	three
	different
	ways
that
	it
	is
	improper
	to
	"discuss,"
	"speak 	to" 	or
	"comment"
	on
bargaining.
	Under
	the
	authority 	cited
	above,
	this 	is
	an
incorrect
	statement 	of 	the
	law
	as
	it
	existed
	until
	today.
	It
is 	also
	an
	overbroad
	prohibition
	on
	representational
	activity,
and 	a
	prima
	facie 	violation
	of 	the 	Act. 	In
	reaching
	a
	contrary
conclusion,
	my
	colleagues
	simply 	ignore 	the
	actual
	recorded
comments
	of 	the
	parties.
Under
	such
	circumstances, 	the 	grant 	of 	leave 	to
	amend
	seems
without 	purpose.
13