Palo Verde Unified School District (PERB 0642E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PALO VERDE 	TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
PALO VERDE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-2248
PERB 	Decision 	No. 	642
December 15, 	1987
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Appearances; 	Charles R. 	Gustafson, 	Attorney, 	for Palo Verde
Teachers Association, 	CTA/NEA; Atkinson, 	Anderson, 	Loya, 	Ruud &
Romo by 	Ronald 	C. 	Ruud 	for 	Palo Verde 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Porter, 	Shank and Cordoba, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(hereafter PERB or 	Board) 	on exceptions 	filed
by 	the 	Palo Verde 	Unified 	School 	District 	(hereafter 	District)
to 	the 	proposed 	decision 	(attached hereto) 	of 	the 	PERB
administrative 	law 	judge 	(hereafter ALJ). 	The ALJ 	found 	that
the 	District 	violated 	the 	Educational 	Employment 	Relations 	Act
(EERA or Act) 	section 3543.5(c)1 and, 	derivatively, 	(a) 	and
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to the Government Code. 	Section 3543.5 provides, 	in
pertinent part, 	as follows:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
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(b), 	both by unilaterally 	implementing, 	during negotiations 	for
the 	1985-86 	school 	year, 	a 	six-percent 	salary 	increase 	and by
adopting 	a 	resolution which, 	in 	the 	event 	of 	a 	strike 	called by
the 	Palo 	Verde 	Teachers Association, 	CTA/NEA 	(hereafter
CTA/NEA), 	would affect working conditions.
The Board, 	after 	review of 	the entire 	record, 	finds 	the
ALJ's 	findings 	of 	fact 	to be 	free 	from prejudicial 	error 	and
adopts 	them as 	its 	own. 	With 	the 	exceptions 	noted below, 	we
are 	also 	in agreement 	with 	and hereby adopt 	the 	conclusions 	of
law 	set 	forth 	in 	the ALJ's 	decision.
DISCUSSION
The 	ALJ's 	proposed 	decision 	correctly 	concludes 	that 	the
six-percent 	salary 	increase 	unilaterally 	implemented 	by 	the
District 	while 	the 	parties 	were 	still 	negotiating 	for 	a
collective bargaining 	agreement 	for 	the 	1985-86 	school 	year
violated EERA. 	We disagree, 	however, 	with 	the 	finding and
conclusion 	of 	the ALJ 	that 	the 	resolution 	adopted by 	the
(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
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.
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District, 	at 	the same 	time as 	the 	six-percent 	increase, 	also
violates 	EERA 	for 	the 	following 	reasons:
1. 	The 	adoption of 	the 	resolution was 	not 	charged.
A 	review 	of 	the 	charges 	filed by 	the 	CTA/NEA 	and
incorporated by 	reference 	in 	the 	complaint 	issued by 	the
Board's 	general 	counsel 	do not 	include 	any mention of 	the
resolution. 	Only 	the 	six-percent 	unilateral 	salary 	increase 	is
included.
2. 	The 	resolution was 	not 	introduced 	in evidence.
The 	only 	reference 	to 	the 	resolution at 	the hearing before
the 	ALJ 	occurred 	during 	direct 	examination 	of 	Richard 	Roy,
member of 	the 	District board, 	as 	follows:
Q 	(By Mr. 	Ruud) 	Do you 	recall 	the Board
taking 	action with 	respect 	to 	an 	emergency
resolution 	dealing 	with 	substitute 	teachers
in the 	event of a strike?
A 	Yes, 	I do.
Q 	Did 	the 	Board 	pass 	such 	a 	resolution?
A 	Yes, 	they did.
Q 	When?
A 	I believe 	it was 	September 	6th. 	It 	was 	a
day or 	two after 	that 	September 	4th
negotiation 	session.
The 	District 	excepted 	to 	a 	statement 	contained 	in 	the ALJ's
proposed 	decision which 	reads 	as 	follows:
At 	the 	September 	6 	meeting 	the 	Board 	also
adopted 	an 	emergency resolution 	as 	a
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response 	to what 	it perceived as 	a
threatened 	strike. 	The Association 	alleged,
and 	the 	District 	did 	not dispute, 	that 	this
resolution, 	in the event of a strike, 	would
have 	unilaterally 	changed 	terms 	and
conditions 	of 	employment 	as 	the 	term 	is
defined 	in 	the Act. 	The 	exact 	wording of
such 	resolution 	was 	not 	placed 	into 	evidence
at 	the 	formal hearing 	in this 	case. 	(See
Proposed 	Decision at p. 	13.)
As 	grounds 	for 	this 	exception the 	District 	states:
The 	District 	did 	not 	admit 	or 	otherwise
stipulate 	that 	the emergency resolution, 	in
the 	event 	of a 	strike, 	would unilaterally
have 	changed 	terms 	and 	conditions 	of
employment.
Since 	the 	resolution was 	not 	introduced 	in 	evidence 	and
since 	the 	record 	supports 	the 	District's 	contention 	that 	it
neither 	stipulated 	nor 	admitted 	to 	the 	content 	or 	effect 	of 	the
resolution, 	there 	is 	a complete 	failure of proof with respect
to 	its 	contents 	or 	its 	impact 	in the 	event 	of 	a strike. 	We
further 	note 	that 	neither 	party mentioned 	or 	discussed 	the
resolution 	in 	their post-hearing briefs. 	Without 	the
resolution 	itself 	or 	more 	evidence 	in 	the 	record 	that 	this
matter 	was 	fully 	litigated, 	the 	Board 	is 	simply constrained
from 	determining whether 	it 	was 	improper 	unilateral 	action by
the 	District 	or, 	conversely, 	an appropriate 	emergency response.
(Santa Clara Unified School District 	(1979) 	PERB Dec. 	No. 	104).
We, 	therefore, 	reject all 	references 	to the 	resolution 	in the
proposed 	decision 	and 	adopt 	a 	new 	order 	consistent 	with 	this
Decision.
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We 	would 	reiterate, 	however, 	that we 	expressly affirm 	that
portion 	of 	the ALJ's 	proposed 	decision 	that 	finds 	the
six-percent 	salary 	increase 	unilaterally 	implemented by 	the
District 	during 	negotiations 	to be 	a 	violation 	of 	EERA. 	The
Board has 	consistently held 	that 	"self-help" 	during
negotiations 	that 	concern matters 	within 	scope 	are 	a violation
of 	EERA and may be 	remedied by 	the 	filing 	of 	an 	unfair 	practice
charge 	with 	the 	Board by 	a party who believes 	negotiations 	are
not being conducted 	in good 	faith or, 	in 	the event of 	an actual
strike, 	the 	remedy may be 	a request 	to 	the 	Board 	for 	injunctive
relief 	(Compton Unified 	School 	District 	(1987) 	PERB Order No.
IR-50).
ORDER
Based upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and 	the 	entire 	record 	in 	this 	case, 	it 	is 	found 	that 	the
Palo 	Verde 	Unified 	School 	District 	violated 	section 	3534.5(c)
and, 	derivatively, 	(a) 	and 	(b) 	of the Educational Employment
Relations Act. 	Pursuant to Government Code section 3541(c), 	it
is 	hereby ORDERED 	that 	the 	Palo Verde 	Unified 	School 	District,
its 	governing board and 	its 	representative(s) 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Refusing 	to negotiate prior 	to 	the modification of
subjects 	within 	the 	scope of 	representation, 	such as 	salary and
other 	working 	conditions.

2. 	Imposing or 	threatening 	to 	impose 	reprisals,
discriminating or 	threatening 	to discriminate 	against, 	or
otherwise 	interfering with, 	restraining, 	or 	coercing employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by 	the Act.
3. 	Denying 	to 	the 	Palo Verde 	Teaches Association,
CTA/NEA, 	rights 	guaranteed 	to 	it by the Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	PURPOSE 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Negotiate, 	upon request of the Association, 	any
modification of 	subjects 	within 	the 	scope 	of 	representation,
including 	the 	issue 	of 	any 	salary 	increase 	and/or 	modifications
of 	working conditions.
2. 	Within 	thirty-five 	(35) 	days 	following 	the date
this 	Decision 	is no 	longer 	subject 	to reconsideration, 	post 	at
all 	school 	sites 	and 	all 	other 	work 	locations 	where 	notices 	to
certificated 	employees 	are 	customarily placed 	copies 	of 	the
Notice 	attached hereto as 	an Appendix. 	The Notice 	must be
signed by an 	authorized 	agent 	of 	the 	District 	indicating 	that
the 	District 	will 	comply with 	the 	terms 	of 	this 	Order. 	Such
posting 	shall be 	maintained 	for 	a period 	of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be 	taken 	to
insure 	that 	the Notice 	is 	not reduced 	in size, 	altered, 	defaced
or 	covered by 	any other 	material.
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3. 	Upon 	issuance of 	this 	decision, 	written
notification 	of 	the 	actions 	taken 	to 	comply with 	this 	Order
shall be 	made 	to 	the 	Los Angeles 	Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board 	in 	accordance 	with his
instructions. 	All 	reports 	to 	the 	Regional 	Director 	shall be
concurrently 	served 	on 	the 	Charging 	Party herein.
Chairperson 	Hesse 	and Members 	Porter 	and 	Cordoba 	joined 	in 	this
Decision.
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•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-2248,
Palo Verde Teachers Association, 	CTA/NEA v. 	Palo Verde Unified
School 	District, 	in which all parties had 	the 	right 	to
participate, 	it has been 	found 	that 	the 	District 	violated
Government Code 	section 3543.5(c) 	and, 	derivatively, 	sections
3543.5(a) 	and 	(b) 	when it unilaterally 	implemented
modifications 	in 	salary 	without 	first 	negotiating 	such
modifications 	with 	the 	exclusive 	representative 	of 	its
employees.
As 	a 	result 	of 	this 	conduct, 	the 	District has been ordered
to post 	this 	Notice 	and 	it will:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Refusing 	to negotiate prior 	to 	the modification of
subjects 	within 	the 	scope of 	representation, 	such 	as 	salary and
other 	working 	conditions.
2. 	Imposing or 	threatening 	to 	impose 	reprisals,
discriminating or 	threatening 	to discriminate 	against, 	or
otherwise 	interfering with, 	restraining, 	or 	coercing employees
because 	of 	their 	exercise 	of 	rights 	guaranteed by 	the Act.
3. 	Denying 	to the Palo Verde 	Teaches Association,
CTA/NEA, 	rights 	guaranteed to 	it by the Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED 	TO
EFFECTUATE 	THE 	PURPOSE OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Negotiate, 	upon request of the Association, 	any
modification of 	subjects 	within 	the 	scope 	of 	representation,
including 	the 	issue 	of 	any 	salary 	increase 	and/or 	modifications
of 	working 	conditions.
DATED:
PALO 	VERDE 	UNIFIED 	SCHOOL 	DISTRICT
By_
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
PALO VERDE TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
PALO VERDE UNIFIED SCHOOL DISTRICT,
Respondent.
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PROPOSED DECISION
(6/3/87)
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Appearances: 	Charles R. 	Gustafson, 	Esq., 	California Teachers
Association, 	for the Palo Verde Teachers Association, 	CTA/NEA;
Atkinson, Anderson, 	Loya, 	Ruud & Romo by Ronald C. 	Ruud, 	Esq.,
for 	the Palo Verde Unified 	School 	District.
Before: 	Allen R. 	Link, 	Administrative Law Judge
PROCEDURAL 	HISTORY
On September 25, 	1985, 	the Palo Verde Teachers Association,
CTA/NEA 	(hereafter Association or Charging 	Party) 	filed 	this
Unfair 	Practice Charge with 	the 	Public Employment 	Relations
Board 	(hereafter PERB or Board) 	against 	the Palo Verde Unified
School District 	(hereafter District or Respondent), 	alleging
violations 	of 	the Educational Employment Relations Act
(hereafter EERA or A c t ) 1
The General Counsel of 	the PERB, 	after 	an 	investigation of
the Charge, 	issued a Complaint on October 4, 	1985. 	The
Complaint 	alleged violations 	of 	Government 	Code 	sections
1The 	Educational Employment Relations Act 	is 	codified 	at
section 3540 et seq. 	of the Government Code. 	All section
references, 	unless 	otherwise 	indicated, 	are to the Government
Code.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
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3543.5(a), 	(b), (c) and ( e ) . 2 On October 23, 1985, the
District 	filed 	its Answer 	setting 	forth 	a 	number 	of 	affirmative
defenses.
An informal conference was held on November 	14, 	1985, 	to
explore voluntary settlement 	possibilities. 	As 	no 	settlement
was 	reached, 	the formal 	hearing 	in this matter was 	held before
the undersigned on February 3 	and 4, 	1986. 	Both parties were
given an opportunity to brief 	their 	respective positions. 	The
Association's 	closing brief was 	submitted on June 2, 	1986.
INTRODUCTION
The parties were unable to 	agree to 	a 	1984-85 	collective
bargaining 	agreement 	(hereafter CBA) 	and, 	after completing 	the
impasse procedure 	and 	a 	post-factfinding 	bargaining 	session,
2Sections 3543.5(a), (b), (c) and (e) state:
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
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.
(e) 	Refuse to participate 	in good faith in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).

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the District unilaterally, 	in May 1985, 	implemented
modifications 	in both salary and working 	conditions.
The Association 	filed 	an Unfair 	Practice Charge which was
dismissed by PERB's General Counsel. 	On May 24, 	1985, 	the
Association held 	a 	one-day strike. 	During 	the 	ensuing 	summer
months 	the Association held many meetings 	and engaged 	in the
outward manifestations 	of 	readying 	itself 	for 	a 	strike 	at 	the
beginning of 	the 	1985-86 	school year.
On August 	15 	and September 4, 	1985, 	scheduled negotiating
sessions were held. 	No 	resolution of 	the 	issues was 	reached.
On September 6, 	1985, 	the District's governing board, 	in order
to defuse 	strike momentum, 	unilaterally implemented 	a
six-percent 	salary increase. 	At 	this 	same meeting 	the
governing 	board 	adopted 	an emergency 	resolution 	in 	response 	to
the 	threatened 	strike. 	This 	resolution unilaterally modified
specified working 	conditions 	for 	the 	certificated 	employees,
but would be operative only 	in 	the event 	a work stoppage
occurred.
The Association complains 	that 	the District, 	in both its
salary 	implementation and 	its 	passage of 	the emergency
resolution, 	violated the Act 	in that 	it unilaterally changed
terms 	and conditions 	of 	employment.
JURISDICTION
The parties 	stipulated to 	the Respondent being 	a 	public
school 	employer 	and 	the Charging 	Party being 	an 	exclusive
representative within the meaning of 	section 3540.1 of 	the Act.

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FINDINGS OF FACT
During the 	1984-85 	school year, 	the District 	and the
Association 	failed 	to 	reach 	agreement 	at 	the negotiations 	table
and proceeded 	through statutory impasse procedures, 	including
the 	factfinding 	process. 	A factfinding 	report was 	issued 	on
May 17, 	1985. 	On May 23, 	1985, 	the parties met to consider the
factfinder's 	recommendations 	and no 	agreement was 	reached. 	On
May 24, 	1985, 	the Association called a one-day strike, 	after
which 	all unit members 	returned 	to work for 	the balance of 	the
school year.
On May 29, 	1985, 	the District's Board of Education
unilaterally 	implemented 	both 	salary 	increases 	and 	other
changes 	in the teacher's work year. 	Such modifications were
consistent with 	its 	last position at 	the negotiation table. 	In
response, 	the Association filed an Unfair Practice Charge
challenging the 	legality of 	these 	actions. 	The Charge was
dismissed by PERB's General Counsel who determined, 	after 	an
investigation, 	that the unilateral modifications were
permissible.
In early June 1985, 	the Association began preparations 	for
a 	strike to 	commence 	at 	the beginning of 	the 	1985-86 	school
year. 	The newly-elected Association president, 	Robert Jeppson,
met, 	later 	that month, 	with state CTA representatives
Halle Reising 	and Barbara Kerr 	at 	the Rodeway Inn 	in Blythe 	to
discuss 	a possible 1985-86 strike. 	Robert Procko, 	a CTA field
representative, 	and Gerald Colcun, 	a 	local Association

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representative, 	also 	attended the meeting during which
"financial 	aspects" 	of 	a possible 	strike were discussed.
A June 5, 1985, 	newspaper 	article 	in the Palo Verde Times
quoted Jeppson, 	as follows:
Besides 	voting 	the previous 	evening 	to 	go 	on
strike teachers 	also voted not 	to 	return to
the classroom the next year 	if 	they did not
receive 	a 	contract 	that 	they consider
acceptable. 	Teachers 	reaffirmed that
commitment 	during 	the meeting 	Thursday
according to Bob Jeppson, 	association
president.
Jeppson 	also 	added 	that PVTA plans 	to 	step
up 	activities during 	the summer 	if 	no
progress 	takes place 	in negotiations.
Activities 	can 	include preparing 	news
releases, 	picketing 	and circulating
literature 	in neighborhoods 	to drum up
community 	support.
Jeppson 	acknowledged 	the 	accuracy of most 	of 	this 	article,
but denied that 	a written ballot 	strike vote had been taken
with 	regard 	to 	their 	return to 	the classrooms 	at 	the beginning
of 	the 	1985-86 	school year.
The Association bought 	an advertisement 	in the June 7, 	1985,
edition of 	the Palo Verde Times, 	which 	included the 	following
statement:
A strike vote 	for the 	fall of 	1985 	has 	not
been taken yet 	by the Palo Verde 	teachers.
However, 	teachers have voted to take 	all
actions 	necessary to 	prepare 	for 	the
likelihood 	that 	classrooms will 	not open 	in
the fall unless 	teachers have a 	satisfactory
contract. 	Teachers will work hard to
negotiate a contract; 	they will compromise
where necessary; 	but they do not want the
1985-86 	school year 	to begin until 	the Palo
Verde Unified 	School 	District 	has 	changed
its priorities 	and begins 	to offer 	its

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teachers 	the same 	salaries 	and the 	same
respect 	teachers 	receive 	in other 	school
districts.
The 	"contract" 	referred to was 	the prospective 	1985-86
collective 	bargaining 	agreement.
Toward the end of June, 	Superintendent Leamon E. 	Hanson
asked 	the Association to 	join with him 	in 	starting 	negotiations
on the 1985-86 	school year calendar. 	In response, 	the
Association submitted a 	"Statement" 	of 	its 	position which
included 	the 	following:
. 	. 	. 	all of the 1984-85/1985-86 issues
which were 	carried 	into 	Factfinding 	but
which are not yet 	settled. 	A number 	of
non-calendar 	issues 	need 	to 	be 	settled
before 	it would be meaningful 	to discuss
such calendar 	issues 	as which day teachers
will 	return for work for 	1985-86.
No 	bargaining 	sessions 	occurred during 	the months 	of 	June
and July 1985. 	On July 19, 	1985, 	Association negotiator Scott
Wiseman sent 	a memorandum to unit members 	giving notice of 	an
August 19, 	1985, 	meeting. 	Wiseman's memorandum stated in part:
. 	. 	. 	we are doing all possible to meet with
the District to negotiate 	a 	satisfactory
contract 	before the 	start of 	the 	school
year, 	and at the same time we are putting
the machinery in place for 	a 	strike so we'll
be 	ready if 	that's what 	it comes 	to.
The negotiations 	team is 	asking 	the PVTA
president 	to hold 	a meeting of 	teachers 	on
Monday, August 19, 	at 9 a.m., 	in the high
school 	library. 	At 	that meeting, 	we expect
a vote to be taken either 	(1) 	to 	ratify a
1985-86 	contract—if 	we 	have 	negotiated 	one
by then, 	or 	(2) 	to begin a strike as of
August 20, 	or 	(3) 	to give up and accept
whatever the District wants 	to offer.

7
An August 2, 	1985, 	article in the Palo Verde Times quoted
Jeppson 	as 	confirming 	the 	three 	alternatives 	set 	forth 	in
Wiseman's memo.
Toward the end of July 1985, 	the Superintendent 	contacted
Wiseman 	to 	discuss 	"sunshining" 	initial 	1985-86 	CBA proposals
and to 	begin negotiating 	the CBA for the upcoming 	school year.
To expedite matters, 	because of the strike threat, 	Dr. 	Hanson
asked Wiseman if the Association's 	"Statement" 	of June 26, 	see
supra, 	could be treated 	as 	its 	initial proposal. 	Wiseman
eventually agreed, 	and that June 26 	statement, 	along with the
District's 	initial proposal, 	were 	"sunshined" 	on August 	6. 	The
District's 	initial 	proposal 	contained 	a proposed 	increase 	in
the salary schedule of 	six percent or, 	in the alternative, 	a
downward modification 	in 	the health plan 	and 	an eight-percent
salary schedule 	increase. 	Ordinarily, 	the Association submits
its 	proposal 	first 	and 	the District 	responds with 	its
counter-proposal 	after 	a 	public 	hearing 	on 	the Association's
proposal.
- -
The first negotiating 	session was held on August 	15, 	1985.
Attorney Ron Ruud 	and Cliff 	Hillis 	represented 	the District 	and
Wiseman, 	Jeppson and Jeannie Webber 	served 	as 	the Association's
negotiating 	representatives. 	Most 	of 	the session was 	spent
discussing 	the 	issue of discipline. 	The District 	offered 	a
counterproposal on discipline, 	and Jeppson did not 	recall 	if
the Association offered 	any proposals 	beyond 	its 	June 	26
"Statement."

8
The Association's membership meeting occurred, 	as
scheduled, 	on August 	19, 	1985. 	The 1985-86 	school year was
scheduled to begin the next day. 	Approximately 60 	of 	the 	142
unit members 	attended the meeting. 	A vote was 	taken 	and 	it was
recommended 	that 	a work stoppage not 	take place 	at 	that 	time.
Instead, 	a 	resolution was 	passed 	instructing the negotiating
team to continue negotiating until August 	26, 	when another vote
would be 	taken.
At 	the August 	19 	meeting 	concern was 	expressed 	that 	there
was not sufficient support for a strike. 	At the time, 	the
Association was 	aware that 	the next 	negotiating 	session was 	not
scheduled until 	September 	4, 	but 	the 	leadership 	contemplated
either 	scheduling 	another 	negotiations 	session 	and/or 	going
directly to various members 	of 	the 	school 	board prior 	to
August 	26. 	After the August 	19 Association meeting, 	Jeppson
went 	to 	the 	Superintendent with a 	counterproposal 	from the
Association. 	The 	counterproposal 	included unresolved 	1984-85
issues. 	The Superintendent, 	who was not on the District
bargaining 	team, 	declined 	to 	negotiate 	away from the 	table.
The next day, 	August 20, 	Jeppson sent an "update" 	to unit
members. 	In part, 	this update read as follows:
A general 	teacher's 	meeting was 	held Monday
at 	9 	a.m. 	in the High School 	library.
Teachers were given 	an update on the
progress 	(or lack of) 	of negotiations.
Teachers 	gave 	input 	on 	and 	asked 	questions
about many of the 	issues. 	After much
discussion, 	a motion was made that teachers
work during 	the week of 	orientation and 	that
they meet Monday August 	26th 	at 	6:00 	a.m. 	in

9
the High School Library to decide what
further 	action to 	take. 	The motion was
passed unanimously. 	A Crisis 	Committee
meeting was 	scheduled 	for 	later 	in the day.
Early in the afternoon, 	I met with
Dr. 	Hanson to present our compromise
proposal 	and to 	try to 	set up 	another
negotiations 	session. 	He told me that 	I
should 	just 	hold on to 	our 	proposal until we
could meet with Mr. 	Ruud. 	I 	asked him if we
could meet with him without Mr. 	Ruud 	and
Tom Brown present to 	try to 	settle 	a 	few of
the 	issues. 	He stated that 	he was 	not on
the District's 	Bargaining 	Team and did 	not
want 	to meet with us. 	He 	said that he would
call Mr. 	Ruud and then get back with me. 	I
did 	leave 	a 	copy of 	our proposal 	on his
desk.
While I was talking to Dr. 	Hanson,
Annanias Bowens 	(a Board Member) 	called and
wanted 	to 	know what 	teachers were planning
to do. 	I 	informed him through Dr. 	Hanson of
our intentions. 	Dr. 	Hanson seemed surprised
and 	somewhat 	irritated 	that we would wait
until Monday morning 	to make 	a 	decision on
whether 	to 	strike that day.
During 	the 	orientation period 	between August 	19
and 22, 	1985, 	the Association distributed to all certificated
employees 	a 	two-page handout entitled 	"Teachers 	Strike?" 	The
handout was 	prepared by President 	Jeppson 	and 	other 	leaders 	of
the Association. 	A portion of 	that document 	reads 	as 	follows:
Did you know that:
. 	. 	. 	teachers' 	strike does not hurt students
(1) 	if 	the schools 	are closed during 	the strike;
(2) 	if 	students get their 	regular 180 days of
education after the strike is over; 	and
(3) 	if the schools 	are better because of the
strike?
* * * *
. 	. 	. 	your teachers may strike Monday morning,
August 26, 	because they still do not have a
contract?

10
. 	. 	. your teachers tried to negotiate this
summer 	but 	could not 	get 	the district 	to
negotiate except 	for 	6 	hours 	on August 	15?
. 	. 	. 	since June, 	the district has been preparing
for 	a 	strike 	instead of 	negotiating 	to
avoid 	one?
Jeppson testified that 	the Association's 	"ideal" 	objective
was 	to 	close 	school without 	the 	strikers 	incurring 	any economic
loss. 	This 	could be done by making up 	any days 	lost during 	the
strike 	at 	the end of 	the scheduled 	school year.
On or about August 22, 	1985, 	the Association distributed
another handout 	to 	its members which, 	after 	reminding 	them to
attend the August 26 a.m. 	meeting, 	stated, 	in pertinent part,
as follows:
. 	. 	.If you think a strike is necessary, 	you
will need to be there to vote 	for 	it. 	If
you want 	to give the District more time you
need to be there to vote 	for 	that.
Everybody 	and every vote 	counts.
Approximately 	60 	teachers 	attended 	the August 	26 meeting.
The 	strike 	issue was 	discussed during 	the meeting 	along with
Jeppson's concern that there had not been an opportunity, 	at
the August 	15 negotiations 	session, 	to negotiate over 	issues
for 	the 	1985-86 	school year.
Jeppson was 	concerned 	that 	the Association would be unable
to engage in a successful 	strike at that time. 	Fewer than half
its unit members 	showed up 	at 	the meeting. 	Even 	among 	the 	60
teachers who 	attended, 	there were various viewpoints 	as 	to 	the
appropriate course of action. 	In addition, 	there was 	a fear
the District had 	access 	to 	a 	larger 	than usual 	number of

11
substitutes 	because nearby school 	districts were 	not yet 	in
operation.
At the August 26 meeting, 	a consensus developed that 	there
was 	insufficient momentum for 	a 	strike 	at 	that 	time 	and 	that
another 	attempt to 	reach agreement 	should be made. 	However, 	in
the event of 	failure to 	reach agreement, 	the possibility of 	a
strike 	action would be 	reviewed 	again at 	the end of 	September.
The 	next 	negotiating 	session was 	held 	on September 	4,
during which 	the Association continued 	to 	demand 	salary
increases 	on the order of 	30 	percent 	as well 	as 	concessions 	on
the old 	1984-85 	issues. 	Based upon these demands, 	which the
board perceived 	to be unrealistic, 	the board members became
convinced of 	the Association's 	intent 	to 	instigate 	a work
stoppage. 	Board Member Richard Roy testified on this 	subject,
as follows:
Q 	Now, 	you testified that you perceived
that 	that proposal was 	in some 	respects
unrealistic?
A 	Yes.
Q 	In what 	respects? 	I'm talking 	now 	about
— 	asking 	about 	your 	own 	perception 	as 	a
Board member.
A 	Well, 	it was unrealistic primarily
because 	it continued to discuss 	the
previous year's 	settlement which had
already 	been 	settled, 	and 	—
Q 	You mean the 	1984-85 	issues?
A 	Yes. 	Not 	just 	salary but 	SB-813 minutes
and hours and those issues 	as well. 	And
therefore unrealistic 	in 	its 	salary
demands 	because when you put 	the 	two

12
together 	it was 31 something percent 	to
put on the scale or 	schedule. 	It was
unrealistic 	in many of 	the other demands
but 	I 	perceived those as unrealisms which
are a part of the negotiation process.
Q 	But did you come 	away 	from the
September 	4 	bargaining 	session 	with 	—
what were your perceptions 	about 	the
Association's 	intent 	to 	reach an
agreement based upon their 	proposal 	of
August 	19?
A 	I was 	convinced 	that 	there must 	be 	some
other goal 	in mind 	for 	the PVTA other
than to 	settle at 	any soon date 	in
negotiations.
Q 	What was 	the 	other 	goal?
A 	That 	perhaps 	they were 	trying 	to 	get 	us
to 	reject their 	offer 	and thus 	give them
more ammunition for a strike.
Q 	Was 	it 	the perception of 	the Board 	that
the PVTA 	leadership was more 	interested
in fomenting 	a 	strike than 	reaching
agreement 	at 	the table?
A 	Yes, 	I would say. 	It's 	a matter of
measuring whether 	they were more 	than
this or that, 	but 	it seemed to us that
they certainly were 	preparing 	and
planning 	and 	seeking 	to gain momentum and
backing 	for a 	strike.
Mr. 	Roy also testified, 	with regard to the unilateral
salary increase, 	as follows:
Q 	Why did 	the 	Board 	take 	that 	action?
A 	Well, 	the Board, 	as 	I understood it,
perceived 	that 	by 	taking 	that 	action we
would be best 	serving 	our District 	and
the educational needs of our kids.
We were convinced at 	that point that
further 	negotiations 	— well, 	the 	PVTA
was 	not 	realistic 	in their 	negotiating
procedures, were not, 	in a sense, 	at

13
least 	in our perception, 	negotiating
towards 	solving 	their 	— 	agreeing 	to 	a
contract. 	We were under the threat of 	a
strike. 	The Board very much felt 	that 	a
strike was 	imminent. 	In fact, 	the Board
was 	surprised 	that we weren't 	already
under 	strike at 	that time.
And we 	felt 	that 	if we could 	give 	the
teachers money up 	front 	that A, 	that
would help to 	lessen the chance of 	a
strike, 	and B, 	it would give the teachers
money up 	front where 	if we 	stayed 	to 	our
policy 	of 	non-retroactivity which we 	had
agreed to 	in these negotiations 	they
wouldn't 	be 	the ones 	that would be
penalized by long, 	drawn-out negotiations.
On September 	6, 	1985, 	the board unilaterally implemented
the 	six percent 	salary 	increase. 	This 	action had been
discussed with 	the Association during 	the 	September 	4
negotiations 	session, 	when the Respondent 	announced 	its 	intent
to 	continue 	negotiating 	over 	all 	issues with 	flexibility on
every subject 	except 	retroactivity. 	The 	1985-86 	salary offer
was 	eventually 	raised 	to 	ten percent 	(including 	the 	initial
six percent) 	in 	later negotiating 	sessions.
At 	the 	September 	6 	meeting 	the Board 	also 	adopted 	an
emergency resolution as 	a 	response to what 	it perceived as 	a
threatened 	strike. 	The Association alleged, 	and the District
did not dispute, 	that this 	resolution, 	in the event of a
strike, 	would have unilaterally changed terms 	and conditions 	of
employment as 	the term is defined in the Act. 	The exact
wording 	of 	such 	resolution was 	not 	placed 	into 	evidence 	at 	the
formal hearing 	in this case.

14
Since early summer, 	long before this 	emergency resolution
was 	enacted by the 	school 	board, 	Superintendent Hanson had 	been
preparing 	for 	the possibility of 	a 	strike. 	He met on 	a weekly
basis with principals to develop a 	strike plan, 	and 	ran
newspaper 	advertisements 	for 	substitute 	teachers 	throughout 	the
summer. 	He 	also 	conferred with administrators 	in other
districts, 	developed special 	instructional materials 	and added
extra 	telephone 	lines. 	In order to 	arrange for 	adequate
security, 	the Superintendent was 	in contact with the California
Highway Patrol, 	the Riverside County Sheriff's Department 	and
local police. 	These strike preparation efforts were
time-consuming 	and 	costly.
During 	September and October 	1985, 	the Association
communicated 	directly with 	individual 	board members 	concerning
negotiations 	issues.
Jeppson explained 	the Association's 	reasoning 	in going
directly to 	the 	individual Board members 	as 	a basic 	right 	to
"lobby" 	a public' body. 	Various written materials on
negotiations 	issues were 	sent directly to 	both the
Superintendent 	and 	the 	Board, 	although 	the Association was
aware 	of 	the Respondent's 	authorized 	negotiating 	team.
ISSUES
Did the Respondent violate EERA sections 3543.5(a), 	(b),
(c) 	or 	(e) 	when it unilaterally implemented a six-percent
salary 	increase 	and 	enacted 	the 	subject 	emergency 	resolution?

CONCLUSIONS OF LAW
A unilateral 	change 	in terms 	and conditions 	of 	employment
within the 	scope of 	representation is 	a per se 	refusal 	to
negotiate. 	NLRB v. Katz 	(1962) 	369 U.S. 	736, 	50 LRRM 2177.
PERB has 	long 	recognized 	this 	principle. 	Pajaro Valley Unified
School District 	(1978) 	PERB Decision No. 	51; 	San Mateo County
Community College District 	(1979) 	PERB Decision No. 	94.
A unilateral 	change 	is 	found when 	an employer 	unilaterally
alters 	an established policy. 	That policy may be embodied 	in 	a
collective 	bargaining 	agreement. 	Grant 	Joint Union High School
District 	(1982) 	PERB Decision No. 	196. 	When a contract is
silent or ambiguous as to a policy, 	the existence of a
unilateral 	change may be 	ascertained 	by examining 	past 	practice
or 	bargaining 	history. 	Marysville 	Joint Unified 	School
District 	(1983) 	PERB Decision No. 	314; 	Rio Hondo Community
College District 	(1982) 	PERB Decision No. 	279.
There 	is 	little doubt 	that the unilateral 	implementation of
both a 	salary increase 	and other changes 	in terms 	and
conditions 	of 	employment prior 	to 	the conclusion of 	impasse 	is
a prima facie showing of 	a violation of 	section 3543.5(c). 	It
is 	axiomatic that 	the subject of 	salaries 	is within the
mandatory scope of 	representation. 3 It 	is 	also 	found 	that
15
3Section 3543.2 states, 	in pertinent part, 	as follows:
The 	scope of 	representation 	shall 	be 	limited
to matters relating to wages, 	hours of
employment, 	and other terms 	and conditions
of employment. . 	. 	. 15

16
the 	subjects 	of 	the emergency 	resolution were within 	the
mandatory scope of 	representation. 	The crucial 	issue 	lies with
the Respondent's 	defense to 	its 	admittedly unilateral 	action.
One 	defense 	the Respondent 	propounded was 	that 	irrespective
of 	its 	unilateral 	action on 	salaries 	the District 	continued 	to
negotiate salaries, 	and did, 	in fact, 	eventually agree to a
ten-percent 	salary 	increase 	(four 	additional 	percent 	above 	the
initial 	six-percent). 	This defense was 	rejected by the Board,
itself, 	in Antioch Unified School District 	(1985) 	PERB Decision
No. 	515, when it stated:
The District's 	argument that,
notwithstanding 	its 	unilateral 	salary
reduction, 	it continued to negotiate those
salaries to impasse, 	is at odds with the
well-settled 	labor 	relations 	law of 	both
this 	agency 	and 	the National 	Labor Relations
Board. 	Decisions 	following NLRB v. 	Katz
(1962) 369 U.S. 	736 	[50 LRRM 2177] make
clear 	that where 	an employer 	unilaterally
changes 	a working condition which is 	at 	the
time a subject of negotiations, 	the required
element 	of 	good 	faith on the part 	of 	the
employer is destroyed. 	See, 	e.g., Amador
Valley Joint Union High 	School 	District
(1978) 	PERB Decision No. 	74. 	As a practical
matter, 	it 	is clear that such unilateral
action 	alters 	the balance of 	bargaining
power held by the parties. 	Where, 	as here,
an employer desires 	to change 	the 	status
quo, 	it cannot, 	under the EERA, 	achieve that
end until 	such later time as 	it has
completed 	its 	negotiating 	obligation. 	That
the 	negotiating 	obligation will 	delay
implementation, 	then, 	acts as an incentive
for 	the employer 	to 	expeditiously pursue
negotiations and, 	perhaps, 	even to make
concessions 	sought 	by the union 	in order 	to
bring negotiations 	to a conclusion. 	Where,
however, 	the employer 	first unilaterally
implements 	the change 	it desires 	in the

-
17
status quo, 	its motivation in negotiations
is obviously changed. 	The 	incentive to
reach agreement 	is undermined because 	it has
already achieved what 	it desires. 	(Emphasis
in original.)
Based on this Antioch precedent, 	it 	is determined 	that 	this
defense 	is without merit.
The District, however, 	asserts, 	as its primary defense, 	a
contention 	that 	the Charging 	Party's 	strike preparations 	and
"saber rattlings" were gross misconduct which, 	it 	insists,
proves 	that 	it 	(the Association) 	was 	not engaged 	in a good
faith participation 	in the negotiations 	process 	at 	the time 	the
unilateral change occurred. 	The District 	relies 	on this
defense 	as 	a business or 	legal 	necessity to 	excuse 	it 	from the
duty to 	negotiate prior 	to 	adoption of 	changes 	in matters
within the 	scope of 	representation.
The District 	relies on language in NLRB v. 	Katz, 	supra,
which 	suggests 	that 	there may be 	a 	justification 	for 	an
employer's unilateral action. 	This 	language is 	as 	follows:
Unilateral 	action by an employer without
prior discussion with the union does 	amount
to 	a 	refusal 	to negotiate about 	the affected
conditions 	of 	employment under 	negotiation,
and must 	of 	necessity obstruct 	bargaining,
contrary to 	the congressional policy. 	It
will 	often disclose 	an unwillingness 	to
agree with the union. 	It will 	rarely be
justified by any .reason of substance 	. 	. 	.
While we do 	not 	foreclose 	the possibility
that 	there might 	be circumstances which the
Board could or 	should 	accept 	as 	excusing 	or
justifying unilateral 	action, 	no 	such case
is 	presented 	here 	. . . .

18
The employer also cites NLRB v. 	Cone Mills Corporation, 	413
F. 	2d 445 	(CA4, 	1969) 	and American Federation of Television and
Radio Artists v. 	NLRB. 	395 F. 	2d 622 	(1968) which generally
support 	the above cited section of NLRB v. 	Katz 	in holding that
although unilateral changes may be sufficient, 	standing 	alone,
to support 	a finding of 	refusal to bargain, 	it does not compel
such a 	finding 	in disregard of the 	record as 	a whole. 	These
cases, 	however, 	do not provide any standards as to what
exceptions would be 	appropriate.
The District 	attempts 	to develop these 	standards 	by
emphasizing 	the underlying 	rationale 	and 	spirit 	of 	Katz 	rather
than what 	it 	calls 	the 	"automatic 	and mindless 	application of
the per 	se 	rule." 	In this 	attempt 	it 	references 	San Mateo
County Community College District 	(1979) 	PERB Decision No. 	94.
San Mateo 	sets 	forth four 	reasons 	for 	the Katz 	rule
disfavoring employer unilateral 	action. 	It does 	not 	set up 	a
test or 	insist 	that each of 	these 	reasons must be present 	in
order 	for Katz to be operative, 	but 	rather 	attempts 	to explain
why the decision was 	issued 	and why the PERB chose 	to 	follow 	it.
In 	an abbreviated form, 	the 	four 	reasons why an employer's
unilateral 	actions 	are disfavored 	are as 	follows:
(1) 	it 	creates 	a destabilizing 	and disorienting 	impact 	on
employer-employee 	affairs,
(2) 	it 	interferes with employee freedom of 	choice 	in
selection of 	an exclusive 	representative,

19
(3) 	it 	is counterproductive to the promotion of
negotiating 	equality consistent with 	the 	statutory
design 	and
(4) 	when carried out 	in the context of declining 	revenues,
it may unfairly shift 	community 	and political 	pressure
to 	employees 	and 	their organizations 	and 	at 	the 	same
time 	reduce 	the employer's 	accountability to 	the
public.
The Respondent attempts to show that 	its 	actions, 	when
examined in the context of 	these four different 	reasons, 	do 	not
violate either 	the spirit or the 	letter of 	the Katz decision.
-
With regard to 	the first of the reasons, 	the Respondent
argues that its 	actions did not create, 	but rather calmed, 	a
destabilizing 	and disorienting 	situation. 	It 	cites 	the
Association's 	threatened 	strike threat 	as 	the 	real
destabilizing 	circumstance.
With 	regard to 	the 	second 	and third of 	these 	reasons, 	the
Respondent 	insists, 	in its brief, 	that its unilateral
six-percent 	salary 	increase did not 	interfere with 	either 	the
freedom of 	choice 	in the 	selection of 	an exclusive
representative or negotiating equality. 	It 	sums up the 	impact
of 	its 	action by stating 	that 	"it 	actually put 	the Association
in a 	stronger bargaining position, 	since the issue of 	salary
was 	not 	removed 	from the 	table nor were 	other 	bargaining 	issues
affected. 	In substance, 	respondent merely spotted Charging

20
Party 	six 	percent 	toward 	the beginning 	of 	the 	bargaining
process without 	a 	return concession."
It dismissed the 	fourth reason with the 	rather 	cavalier
statement 	that 	"respondent merely 	implemented 	a 	six percent
increase with no 	strings 	attached. 	This 	could not 	possibly
result 	in a particular disadvantage to Charging Party in the
eyes of 	the public."
The Respondent's 	interpretation of 	its 	actions 	vis-a-vis
the 	first 	reason employs 	a 	somewhat 	selective evaluation
process. 	The District 	insists 	that 	the unilateral 	six-percent
increase calmed 	an otherwise chaotic 	situation. 	It 	is 	true
that 	the 	salary increase may have 	reduced 	support 	for 	a 	strike
or other job action in this 	instance. 	However, 	this 	argument
misses 	the Board's point 	in San Mateo. 	The point being that
"[a]n employer's 	single-handed 	assumption of 	power 	over
employment 	relations 	can" 	trigger 	a 	reciprocal 	employee 	action
such as 	a 	strike or other disruption at 	the work place. 	The
fact 	that 	no 	such employee 	action 	actually occurred 	in this
instance does not, 	retroactively, 	make the employer's 	actions
proper. 	The Board in San Mateo, 	supra 	summed up 	its position
with the 	following 	sentence, 	"This 	one-sided edge 	to 	the
employer 	surely delays, 	and may even totally frustrate, 	the
process of 	arriving at 	a contract."
It 	is 	in the 	area of 	the 	second and third 	reasons 	that 	the
employer's 	arguments 	lose most of 	their credibility.
Unilateral 	action with 	regard to 	both the 	salaries 	and 	the
- -

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emergency 	resolution on the part 	of 	the 	employer 	derogates 	the
authority of 	the exclusive 	representative 	and 	lessens 	it 	in the
eyes of 	the employees. 	Such acts 	suggest to the unit members
that 	the exclusive 	representative 	is 	ineffective 	in protecting
them from the employer's 	actions. 	It 	also disrupts 	the
"sometime delicate political 	framework" 	and
tips 	the negotiating 	balance 	so 	carefully
structured by the various 	provisions 	of 	the
EERA. 	In short, 	the bilateral duty to
negotiate 	is 	negated by the 	assertion of
power 	by one party through unilateral 	action
on negotiable matters. 	(See San Mateo.	------·
supra.)
With regard to 	the fourth reason, 	the Respondent merely
asserts 	that 	the unilateral 	salary increase 	"could not 	possibly
result 	in 	a 	particular disadvantage 	to Charging 	Party 	in the
eyes 	of 	the public." 	This conclusionary statement 	is 	supported
by neither 	logic nor evidence. 	It 	is not 	the unilateral
implementation of 	the 	six-percent 	salary 	increase 	that 	could
unfairly shift 	community pressure to 	employees 	and 	their
organization, 	but 	the insistence by such employees 	and their
organizations 	upon 	a 	larger 	increase 	and 	additional 	benefits.
The unilateral 	increase puts 	the employee organization 	in 	the
inevitable position of either 	(1) 	demanding more benefits 	and
therefore appearing, 	in the eyes of the community, 	as greedy or
(2) 	accepting whatever the District decides to hand out with a
reluctant 	tug 	of 	the 	forelock and 	a 	half-muttered 	"wait 	'til
next year." 	Neither of 	these choices 	enhances 	a 	balance of
rights 	and obligations between the parties.

22
The Respondent 	attempts 	to 	justify its 	actions 	by
underscoring 	its 	motivation 	in unilaterally 	implementing 	the
salary increase. 	Its motivation was 	to discourage 	a 	strike
which would disrupt 	the 	continuity of 	education 	for 	children 	in
Blythe. 	However, 	there was no strike in the District at that
time, 	only a 	rather 	ineffective attempt to threaten one. 	The
legitimate 	answer 	to 	such a 	threat 	is 	to be found 	at 	the
negotiating 	table 	and not 	in 	a unilateral 	salary 	increase 	or
the 	implementation of changes 	in working conditions.
The District 	references 	the 	fact 	that 	PERB 	has 	upheld 	the
right of unions 	to engage 	in work stoppages 	before 	impasse
procedures have been exhausted, 	when, 	and only when, 	such
actions 	are taken in 	response 	to 	an employer's unfair
practice(s). 	See Modesto City Schools 	(1983) 	PERB Decision No.
291. 	It 	argues 	that since employers have no 	reciprocal 	avenue
of self-help, 	such as a 	lockout, 	basic fairness dictates the
employer 	should be 	allowed to 	act 	unilaterally to 	forestall 	the
threat 	of 	an 	illegal 	strike 	if 	the change 	in working 	conditions
does 	not 	"frustrate the EERA's 	purpose of 	achieving mutual
agreement 	through mediation," 	relying 	on Moreno Valley Unified
School District v. 	PERB. 	191 Cal Rptr at 64. 	However, 	in this
case there was only a threat to 	strike.
Although this 	defense 	theory does 	have 	some basis 	in both
logic 	and 	in the 	fact 	that 	reciprocal 	rights 	and obligations
are a goal espoused by the PERB, 	it 	faces 	three primary
stumbling blocks. 	First, 	the Board recently, 	in Compton

. . . .
23
Unified School District 	(1987) 	PERB Order No. 	IR-50, 	expressly
overruled Modesto City Schools, 	supra. 	In addition, 	it is
unlikely Modesto, 	supra, 	would apply, 	even if 	it had not been
overruled 	as 	the 	facts 	show that there was only a 	threat 	to
strike 	and not an "illegal" 	strike. 	It 	seems unlikely that
equity dictates 	the 	employer 	should be given the 	right 	to
unilaterally 	implement 	a 	salary 	increase 	and changes 	in working
conditions 	in response to only a threat. 	Secondly, 	it has been
found that 	the manner 	in which the 	salary 	increase was
unilaterally 	implemented did 	not 	enhance 	but 	rather was 	the
antipathy of 	the concept of mutual 	rights 	and obligations 	the
Act was 	designed 	to 	foster 	in that 	it undermined the
Association's 	ability to effectively represent 	its members.
Lastly, 	the implementation of 	a 	rule such as 	is being 	advocated
by the Respondent would be 	so 	subjective 	as 	to 	allow any
employer 	to 	unilaterally modify working 	conditions whenever 	it
believed 	a 	threatened job 	action would be disruptive 	to 	the
continuity of 	education 	in that district. 	Such a 	rule would be
impossible to 	administer. 	For 	the 	foregoing 	reasons 	this
defense must 	be 	rejected.
For 	all of the foregoing 	reasons 	it 	is determined that the
Respondent 	has 	violated 	section 3543.5(c> 	of the Act. 	The
Association has 	established unlawful 	unilateral 	action by the
District when 	it 	unilaterally 	implemented 	both 	a 	six-percent
salary increase 	and changes 	in working conditions. 	A
unilateral 	failure to negotiate 	in good 	faith also 	is,

24
derivatively, 	a violation of sections 3543.5(a) 	and 	(b) 	in that
it 	deprives 	both employees 	and 	their 	organizations 	of 	rights
guaranteed by the Act, 	i.e. 	the 	right 	to bilaterally negotiate
their 	salaries 	and other working conditions. 	San Francisco
Community College District 	(1979) 	PERB Decision No. 	105.
There was 	no 	evidence 	proffered by the 	Charging 	Party
relative to 	a violation of section 3543.5(e) 	(failure to
participate 	in good faith in the impasse procedure).
Therefore, 	the portion of the Charge and Complaint 	that 	refers
to an alleged section 3543.5(e) 	violation 	is hereby DISMISSED.
REMEDY
PERB, in section 3541.5(c), 	is given:
. 	. 	. 	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.
The 	ordinary remedy 	in unilateral 	change cases 	is 	the
return to 	the 	status 	quo 	ante. 	Rio Hondo Community College
District 	(1983) 	PERB Decision No. 	292. 	However, 	under some
circumstances when the employees 	have 	actually 	received 	a
pecuniary benefit 	from the unilateral 	action, 	even though 	it
was 	accompanied by a negotiations detriment, 	it may be found
that 	such 	a 	remedy would not 	effectuate 	the purposes 	of 	the
EERA. 	Nevada Joint Union High School District 	(1985) 	PERB
Decision No. 	557. 	Under the circumstances of this case it 	is
found that 	a 	status 	quo 	remedy is 	inappropriate and therefore

25
no 	such 	restoration to 	the 	status 	quo 	ante will 	be ordered.
The 	fact 	that 	the parties 	later mutually agreed to 	a
ten-percent 	salary 	increase, 	which 	included 	the unilaterally
imposed 	six percent 	is 	further 	justification for 	this
determination.
It is, 	however, 	appropriate that the District be directed
to cease 	and desist 	from its unfair practices 	and to post 	a
notice 	incorporating the terms of 	this order. 	Posting of 	such
a notice, 	signed by an authorized agent of the District will
provide 	employees with notice 	that 	the District 	has 	acted 	in 	an
unlawful manner, 	is 	being 	required to cease 	and desist 	from
this 	activity, 	and will comply with the order. 	It effectuates
the purposes 	of 	the EERA that 	employees 	be 	informed of 	the
resolution of 	the controversy and 	the District's 	readiness 	to
comply with the ordered 	remedy. 	Davis Unified 	School 	District.
et al 	(1980), 	PERB Decision No. 	116; 	see also Placerville Union
School District 	(1978) 	PERB Decision No. 	69.
PROPOSED ORDER
Based upon the foregoing 	findings of 	fact, 	conclusions of
law and the entire 	record in this case, 	it 	is 	found that 	the
Palo Verde Unified 	School 	District 	violated 	section 	3543.5(c)
and, 	derivatively, 	(a) 	and 	(b) 	of the Educational Employment
Relations Act. 	Pursuant to Government Code section 3541(c), 	it
is 	hereby ORDERED that 	the Palo Verde Unified 	School District,

26
.
its governing board 	and 	its 	representative(s) 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing 	to negotiate prior 	to the modification
of 	subjects within the scope of 	representation,
such as 	salary and other working 	conditions.
2. 	Implementing 	the 	emergency 	resolution 	enacted 	by
the District's 	governing 	board 	at 	its
September 6, 	1985, meeting.
3. 	Imposing or threatening 	to 	impose 	reprisals,
discriminating 	or 	threatening 	to 	discriminate
against, 	or otherwise interfering with,
restraining, 	or coercing employees because of
their 	exercise of 	rights 	guaranteed by the Act.
4. 	Denying to 	the Palo Verde Teachers Association,
CTA/NEA, 	rights guaranteed to 	it by the Act.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	PURPOSE OF THE EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Negotiate, 	upon request of the Association, 	any
modification of 	subjects within the 	scope of
representation, 	including 	the 	issue of 	any salary
increase 	and/or modifications 	of working
conditions.
2. 	Rescind, 	repeal or otherwise negate the enactment
of 	the 	emergency 	resolution enacted 	by the 	Board
of Education at 	its 	September 	6, 	1985 meeting.
3. 	Within ten 	(10) 	workdays of service of a final
decision in this matter, 	post 	at 	all 	school 	sites
and all other work 	locations where notices 	to
certificated 	employees 	are 	customarily placed
copies 	of 	the Notice 	attached hereto 	as 	an
Appendix. 	The Notice must be 	signed by an
authorized 	agent 	of 	the District 	indicating 	that
the District will comply with the terms 	of 	this
Order. 	Such posting 	shall 	be maintained 	for 	a
period of thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be taken to 	insure that
the Notice is not reduced in size, 	altered,
defaced or 	covered 	by 	any other material.
4. 	Upon issuance of 	a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with
this Order to the Los Angeles Regional Director
of 	the Public Employment 	Relations 	Board 	in

accordance with his 	instructions. 	Continue to
report 	in writing 	to 	the Regional Director
thereafter 	as directed. 	All 	reports 	to 	the
Regional 	Director 	shall 	be 	concurrently 	served 	on
the 	Charging 	Party herein.
Pursuant to California Administrative Code, 	title 8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final unless 	a party files 	a 	statement of 	exceptions
with 	the 	Board 	itself 	at 	the headquarters 	office 	in 	Sacramento
within 20 days 	of 	service of 	this Decision. 	In accordance with
PERB Regulations, 	the statement of exceptions 	should 	identify
by page, 	citation or exhibit number 	the portions of 	the 	record,
if 	any, 	relied upon for 	such exceptions. 	See California
Administrative Code, 	title 8, 	part III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the close of business 	(5:00 	p.m.) 	on the 	last day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day 	set 	for 	filing 	. . . " 	See 	California Administrative 	Code,
title 8, 	part 	III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	Any statement of 	exception and
supporting 	brief 	must 	be 	served 	concurrently with 	its 	filing
upon each party to 	this 	proceeding. 	Proof of 	service shall
accompany each copy 	served 	on 	a 	party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305 and 32140.
Dated: 	June 3, 	1987
Allen R. 	Link
Administrative 	Law 	Judge
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