San Ysidro School District (PERB I004E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SAN YSIDRO SCHOOL DISTRICT,
Respondent,
a n d
SAN YSIDRO FEDERATION OF TEACHERS,
Charging Party, PETITIONER.
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)
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Case No. LA-CE-212
P E R B O r d e r N o • IR 4
Administrative Appeal
August 8, 1978
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Appearances: J. Michael Taggart, Attorney (Paterson & Taggart)
for San Ysidro School District; Lawrence Rosenzweig, Attorney
(Levy, Koszdin, Goldschmid & Sroloff) for San Ysidro Federation
of Teachers, Local 3211, CFT/AFT/AFL-CIO.
Before Gluck, Chairperson; Cossack Twohey and Gonzales, Members.
OPINION
This case before the Public Employment Relations Board
(hereafter Board) is an appeal from the general counsel's denial
of a request by San Ysidro Federation of Teachers for injunctive
relief pursuant to section 3541.3(j) of the Educational Employ-
ment Relations Act (hereafter EERA).1
FACTS
On January 18, 1978 San Ysidro Federation of Teachers (here-
after SYFT) filed an unfair practice charge against the San Ysidro
School District (hereafter District) alleging that the District
The Educational Employment Relations Act is codified in
Gov. Code sec. 3540, et seq. All references are to the Government
Code unless otherwise specified.

had violated sections 3543.5(a), (b) and (c) of the EERA.2 SYFT
amended its charge on February 15, 1978 to include an alleged
violation of section 3543.5(e).3
In essence, SYFT alleged that the District's refusal to grant
the four members of its negotiating team full-day release time on
January 4 and 11, 1978, the January 27, 1978 Notices of Unprofessional
conduct pursuant to Education Code section 44938 issued to the
2Gov. Code sec. 3543.5(a), (b) and (c) provides:
3543.5. It shall be unlawful for a public
school employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to dis-
criminate 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.
3Gov. Code sec. 3543.5(e) provides:
3543.5. It shall be unlawful for a public
school employer to:
*****
(e) Refuse to participate in good faith in
the impasse procedure set forth in Article 9 (commenc-
ing with Section 3548).
4Ed. Code sec. 44938,in pertinent part, provides:
"The governing board of any school district
shall not act upon any charges of unpro-
fessional conduct or Incompetency unless
during the preceding term or half school
year prior to the date of the filing of
the charge, and at least 90 days prior to
the date of the filing, the board or its
authorized representative has given the
employee against whom the charge is filed,
written notice of the unprofessional con-
duct or Incompetency, specifying the nature
thereof with such specific instances of
behavior and with such particularity as
to furnish the employee an opportunity
to correct his faults and overcome the
grounds for such charge."
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three permanent teachers who were members on the negotiating team,
the February 9, 1978 Notice of Dismissal pursuant to Education Code
44949 issued to the one probationary teacher who was a member of
the negotiating team, and deduction of pay from the salaries of
all negotiating team members constitute violations of the EERA.
On February 13, 1978 SYFT filed a request for injunctive
relief with the Board's general counsel. SYFT urged that
Ed. Code sec. 44949, in pertinent part, provides:
"(a) No later than March 15 and before an
employee is given notice by the governing
board that his services will not be required
for the ensuing year, the governing board and
the employee shall be given written notice by
the superintendent of the district... that it has
been recommended that such notice be given to
the employee, and stating reasons therefor....
(b) The employee may request a hearing to
determine if there is cause for not reemploy-
ing him for the ensuing year....
(c) ...The proposed decision shall be pre-
pared for the governing board and shall contain
a determination as to the sufficiency of the
cause and a recommendation as to disposition.
However, the governing board shall make the
final determination as to the sufficiency
of the cause and disposition....
(e) Notice to the probationary employee by the
governing board that his service will not be
required for the ensuing year, shall be given
no later than May 15."
6At the time SYFT filed its request, Board policy was to have
requests for injunctive relief filed with its general counsel. At
the Board's regular monthly public meeting held on July 5, 1978,
the Board modified its policy with respect to requests for injunctive
relief. The Board unanimously adopted the following policy:
Injunctive Relief.
(a) A party who wishes the Board to seek injunctive relief
pursuant to section 3541.3(j) shall file such request for injunctive
relief with the Board itself at the headquarters office. The
request shall contain the following:
(cont.)
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injunctive relief was necessary to maintain the status quo
and to stay the hearing provided under Education Code section
44949 on the Notice of Dismissal of the probationary teacher who
was a member of the negotiating committee. In essence the SYFT
argued that irreparable harm would occur since the District would
be free to terminate the probationary teacher for cause regardless
of the teacher dismissal hearing and before the Board could render
a decision on the pending unfair practice charge. SYFT characterized
the situation as a "collision" between the Educational Employment
(cont.)
(1) A copy of the underlying unfair practice charge;
(2) The date the unfair practice charge was filed;
(3) Affidavits and other appropriate evidence setting
forth the specific facts upon which the request is based;
(4) A full description of the irreparable injury which
the requesting party alleges it will suffer if the request is not
granted;
(5) The basis for contending that the Board's normal
processes and remedies are inadequate;
(6) The legal theory which supports the requesting
party's belief that it will likely prevail on the merits of the
underlying unfair practice charge; and
(7) A statement of the relief sought.
(b) In order to be considered filed, a copy of the request
must have been actually served upon the charged party or parties
prior to filing the request, and a statement of such service shall
accompany the request. "Actual service" as used in this section
means actual receipt by the party or their agent.
(c) The charged party shall have two days, exclusive of
Saturdays, Sundays, and holidays following receipt of the request
within which to present to the Board itself such evidence, including
affidavits, as it may deem proper to rebut the request.
(d) The Board itself with the advice of its general counsel,
shall immediately upon expiration of charged party's rebuttal period
consider the request for injunctive relief and shall determine
whether or not to issue complaint and seek injunctive relief. If
the Board itself determines the request should be denied, it will
so notify all parties in writing.
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Relations Act and the Education Code. Under the Education
Code a final dismissal notice had to be issued, if at all, by-
May 15. A Board decision could not be expected until sometime
after that. The Board general counsel denied the request for
injunctive relief on the basis that SYFT had an adequate remedy
at law under the EERA.
Two hearings were held following the general counsel's denial
of SYFT's request. An expedited Board hearing on the unfair practice
charge was held on March 21 and 22. A teacher dismissal hearing
as provided by Education Code section 44949 was held before an
administrative law judge of the Office of Administrative Hearings
on April 3 and 4.8
On March 13, 1978, SYFT appealed the general counsel's decision
to the Board itself. SYFT alleged that the normal administrative
procedures of the Board were inadequate to provide an effective
remedy even if the charging party prevailed on the merits of the
case. In particular SYFT asserted that the employment of the pro-
bationary teacher was jeopardized when the District's action under
the Education Code could impair a remedy ordered under the EERA.
On April 11 this Board, upon consideration of the appeal,
ordered SYFT to prepare and submit facts in affidavit form
supporting its request for injunctive relief. Board also invited
the District to submit affidavits in response if it so chose.
Discussion
We agree with the general counsel's denial of the requested
injunctive relief.
A hearing officer's proposed decision issued on May 25, 1978
Both SYFT and the District have filed exceptions to the proposed
decision.
8The administrative law judge issued a proposed decision on
April 18, 1978 in which it was ordered that the probationary
teacher who was a member of the negotiating team was to be re-
employed as a certificated employee of the District for the
1978-79 school year.
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An injunction is proper in circumstances mandating extra-
ordinary relief.9 Two of the prerequisites for the issuance of an
injunction, likelihood of irreparable harm and inadequacy of a
legal remedy, were not satisfied here. ' The facts as alleged
in SYFT's affidavits fall short of these minimum requirements.
SYFT has failed to demonstrate that irreparable harm will
result if an injunction is not obtained. SYFT asserts that the
Board's normal remedies, in the event it prevails on the merits
of its charge, cannot restore the integrity of the negotiating
process. However, SYFT has not asserted any specific facts in
support of this conclusory allegation. Furthermore, we take
official notice that SYFT and the District have proceeded to
factfinding. Thus, negotiations between the parties about the
terms of a new agreement have not broken down but rather are
proceeding according to the statutory scheme of the EERA.
Nor is SYFT's bold assertion that it is in jeopardy of losing
its support among members of the negotiating unit as a result of
the District's conduct supported by any evidence. Assuming for
the purpose of discussion that membership in SYFT has declined,
9 Wilkins v. Oken (1958) 157 Cal.App.2d 603; West v. Lind
(1960) 186 Cal.App.2d 563.
Weingard v. Atlantic Savings & Loan Assn. (1970) 1 Cal.3d
806.
11See Aerovox Corporation (1967) 165 NLRB 623 [65 LRRM 1406],
enforced (Fourth Circuit, 1968) 390 F.2d 653 [67 LRRM 2513],
enforcement pendente lite denied, (Fourth Circuit, 1967) 389 F.2d
475 [65 LRRM 2158]. In Aerovox Corporation, the NLRB issued a
bargaining order after concluding that the employer had violated
sections 8(a)(5) and (1) of the National Labor Relations Act.
The Fourth Circuit, however, refused to grant the National Labor
Relations Board's motion pendente lite for a temporary restraining
order pursuant to section 10(j). Referring to circumstances in
which an employer's refusal to bargain coupled with facts showing
erosion of union strength could warrant such relief, the court
described this case, in contrast, as one in which there was no
evidence that the union was being undercut while awaiting the
normal processes of court enforcement.
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the nexus between the decline and the District's conduct has not
been made. Suffice to note that employee organizations may suffer
membership decline for any number of reasons unrelated to reprisals
against the negotiating team.
As a corollary argument, SYFT also asserts that the threatened
discharge of the one probationary teacher who was a member of the
negotiating team has a "chilling effect" on participation of proba-
tionary teachers in employee organization activities. Again,
however, no evidence of reduced participation was offered. In the
absence of any facts to support this assertion, we are unable to
infer that probationary teachers have ceased participating in
employee organization activities.
SYFT claims that there is no adequate legal remedy in this
case. We do not agree. The statute gives the Board broad remedial
powers, and the type of disciplinary action taken by the District
has been remedied countless times by agencies having authority
comparable to that of PERB. If the District is ultimately found
in the unfair practice case to have violated SYFT's and employees'
rights under the EERA, a proper and enforceable remedy will be
ordered.
Finally, we note that the affidavit submitted by SYFT counsel
is entirely hearsay and does not cure the above-discussed defects
of SYFT's request.
ORDER
The Public Employment Relations Board orders that:
The decision of the general counsel to deny the request
for injunctive relief pursuant to section 3541.3(j) is sustained
by the Board itself.
By Jerilou Cossack Twohey, Member Harryy Gluck, Chairperson
Raymond J. Gonzales, Member, concurring:
The general counsel properly denied SYFT's request for injunctive
relief. However, since that time, this issue has become moot in that
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the probationary teacher who was given a notice of dismissal has
been reemployed by the District. I see no reason to issue a
lengthy and very tardy decision resolving an issue which no longer
has any relevance to the parties. I do not think the Board should
enunciate policy in a case which is unlikely to be carefully
scrutinized by the parties and cannot be tested in court. I do not
mean to imply that parties should appeal all Board decisions to the
courts. Nevertheless, the fact that the opportunity exists operates
as a check on Board discretion. In this case, there is no such
check since the issue is moot and courts usually avoid considering
moot issues. In addition, the parties have no incentive to invest
further time and energy on a case which is no longer relevant.
Therefore, I only concur in the Board's order and do not concur in
the rest of the decision.
Raymond J. Gonzales, Member
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STATE OF CALIFORNIA E D M U N D G- B R O W N JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
923 12th Street, Suite 201
Sacramento, California 95814
(916) 322-3088
March 2, 1978
Lawrence Rosenzweig, Esq.
Levy, Koszdin, Goldschmid & Sroloff
3550 Wilshire Blvd., Suite 1020
Los Angeles, Calif. 90010
In re: PERB Case No. IA-CE-212 (San Ysidro Federation of Teachers
vs. San Ysidro School District)
Dear Mr. Rosenzweig:
In response to your letter of February 13, 1978, please be advised that
the above case does not appear to present considerations which would make
it appropriate for this office to petition a court for temporary relief
pending an administrative hearing on the merits of the unfair practice
charge.
The charge which was filed in this matter is primarily concerned with
disciplinary action taken with respect to members of the Federation's
negotiating team. That this is the thrust of the charge is confirmed
quite clearly by your letter. As you are aware, the EERA gives this
agency the authority to order, where appropriate, reinstatement with or
without back pay in cases of discriminatory dismissals. Thus, assuming
the Federation prevails on the merits, it appears that the normal
administrative procedures are adequate to provide an effective remedy.
Although you raise the question of whether this Board's powers of
reinstatement might conflict with the provisions of Education Code
Section 44949, it is difficult to see how the temporary injunctive relief
which you suggest—postponement of a possible Section 44949 hearing-
could help to avoid arguable conflict between the EERA and the Education
Code. Rather, if this office were to seek immediate injunctive relief
of the type you suggest, it would guarantee that the court would have to
consider this possible conflict, and the case would be in a posture which
would be highly unfavorable to a resolution in favor of the Board's
remedial powers. This is because the court would be placed in a position
of having to consider the legal issues where the facts have not been
fully developed, and where the facts, judging from the allegations of the
charge and the documents attached to the charge, will be the subject of
substantial dispute.

Lawrence Rosenzweig, Esq. -2-
In addition, since this agency is young and has not fully formulated its
policies with regard to seeking temporary judicial relief pursuant to
Government Code Section 3541.3(j), it is appropriate to consider the guide-
lines of the General Counsel of the NLRB in determining when to seek
sililar relief under NLRB Section 10(j). Those guidelines are stated in
the General Counsel's Report on Injunction Proceedings for August, 1971 -
July, 1975 (Labor Relations Yearbook, 1975, B.N.A., pp 310-334). The
basic criteria are stated at p. 312:
In determining whether the institution of 10(j) proceedings
is warranted, the major consideration is whether the alleged
unlawful conduct made subject of a complaint is likely to
frustrate the Board's remedial processes in the absence of
interim injunctive relief. And this is related to whether
the unfair labor practices involved can be effectively remedied,
and the status quo restored, by a Board order and its subsequent
enforcement by a court of appeals. Other pertinent considera-
tions include the clarity of the alleged violation, the impact
of the unfair labor practices on the public interest, the
widespread or repetitious nature of the alleged violations, and
the impact of the alleged unfair labor practices on the
charging party and employee rights under the Act.
Without disregarding the seriousness of situations faced by the individuals
faced with disciplinary action in San Ysidro, it is nevertheless quite
apparent that the policy considerations raised by that charge do not meet
the stringent requirements set by the NLRB General Counsel. In addition,
our research indicates that the General Counsel has sought 10(j) relief,
not always with success, in 8(a)(3) cases primarily, if not always, in the
context of widespread and aggravated interference with employee rights
during the crucial organizational period. In such cases, preliminary
injunctive relief is appropriate to preserve the status quo and make
possible a secret ballot election. In the San Ysidro case, of course, the
Federation is already the exclusive representative, and so similar problems
of maintaining the status quo are not present.
Please be assured that I take very seriously requests to invoke this
agency's power to seek temporary judicial relief. It simply does not appear
that the present case warrants this extraordinary remedy. Your request
that this office seek such relief is therefore denied.
You may obtain a review of the denial of your request for temporary relief
by filing an appeal with the Board itself at the Headquarters Office within
ten (10) calendar days after service of this document. The appeal shall be
in writing, signed by the petitioner or its agent, and shall contain the
facts and arguments upon which the appeal is based. Any appeal shall be
served upon each respondent to the above-entitled matter.
Very truly yours,
William P. Smith
General Counsel
cc: Michael Taggart, Esq.
Malaga Cove, Box 1088
Palos Verdes Estates. Ca. 90274
cc: Raoul Teilhet
cc: Andrea Skorepa, Chapter President