Rio Hondo Community College District * * * OVERRULED IN PART by Oakland Unified School District (2024) PERB Decision No. 2906 * * * (PERB 0292E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
RIO 	HONDO 	FACULTY ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
RIO 	HONDO 	COMMUNITY COLLEGE 	DISTRICT,
Respondent.
Case No. 	LA-CE-1158
PERB Decision No. 	292
March 8, 	1983
RIO HONDO 	COMMUNITY COLLEGE 	DISTRICT,
Charging 	Party,
v.
RIO HONDO FACULTY ASSOCIATION,
CTA/NEA,
Respondent.
Case No. 	LA-CO-141
Appearances; 	Charles R. 	Gustafson, 	Attorney for 	the Rio Hondo
Faculty Association, CTA/NEA; 	Patrick D. 	Sisneros, Attorney
(Wagner, 	Sisneros 	& Wagner) 	for Rio Hondo Community College
District.
Before Tovar, 	Jaeger and Morgenstern, Members.*
DECISION
MORGENSTERN, 	Member: 	These consolidated 	cases 	are 	before
the 	Public Employment Relations Board 	(PERB or Board) 	on
exceptions 	filed 	by 	the 	Rio 	Hondo Community College 	District
(District) 	to a hearing officer's 	proposed 	decision 	finding
*Chairperson Gluck 	and Member 	Burt 	did 	not 	participate 	in 	the
determination of 	this matter.
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* * * OVERRULED IN PART by Oakland Unified School District (2024) PERB
Decision No. 2906 * * *

that 	the District violated 	subsections 	3543.5(a), 	(b) 	and 	(c)
of 	the Educational 	Employment 	Relations 	Act 	(EERA)1 by
unilaterally 	adopting 	a 	resolution 	authorizing 	it 	to 	take
certain actions 	in 	the 	event 	of 	a work 	stoppage; 	and 	that 	the
Rio Hondo Faculty Association, CTA/NEA 	(Association), 	did not
violate 	subsection 	3543.6(c)2 by 	engaging 	in 	a 	one-day 	strike
during 	mediation 	proceedings.
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	statutory references 	are 	to 	the Government Code,
unless 	specified otherwise.
Subsections 3543.5(a), 	(b) 	and 	(c) 	provide as follows:
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.
2Subsection 	3543.6(c) 	provides 	as 	follows:
It 	shall 	be unlawful 	for 	an 	employee
organization 	to:
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith with 	a 	public 	school 	employer 	of
any of 	the 	employees 	of which 	it 	is 	the
exclusive 	representative.
N
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

PROCEDURAL 	HISTORY
On May 30, 	1980, 	the Association 	filed a charge 	in Case
No. 	LA-CE-1158 alleging 	that 	the District violated 	subsections
3543.5 (a), 	(b) 	and 	(c) 	by unilaterally changing working
conditions 	of 	members 	of 	the 	bargaining 	unit 	during 	the 	1979-80
school year. 	Hearing was 	held on 	this 	charge on September 	25,
1980.
On October 	10, 	1980, 	the District filed a charge 	in Case
No. 	LA-CO-141 	alleging 	that 	the Association violated 	subsection
3543.6(c) 	by conducting 	a one-day 	strike 	against 	the District.
The Association filed an Answer on November 	10, 	1980, 	alleging
as 	an affirmative 	defense 	that 	the 	strike was 	provoked 	by 	the
unfair 	practices 	of 	the District.
On December 	2, 	1980, 	the Association 	filed a Motion 	to
Incorporate 	the Record 	in Case No. 	LA-CE-1158, 	which motion was
taken 	under 	advisement 	by 	the 	hearing 	officer 	until 	the
District 	had 	presented 	its 	case 	at 	hearing. 	On February 	26,
1981, 	at 	the 	conclusion of 	the 	first 	day's hearing on 	this
matter, 	the 	hearing 	officer 	granted 	the Association's Motion 	to
Incorporate 	the Record 	in Case No. 	LA-CE-1158.
At 	the 	same 	time, 	the Association further 	moved 	to
incorporate 	the 	records of Case Nos. 	LA-CE-1079, 	LA-CE-1101 and
LA-CE-1157. 	On August 28, 	1981, 	the hearing officer 	granted
this motion 	and 	adjourned 	the 	hearing 	for 	thirty 	(30) 	days 	to
permit 	the 	parties 	to evaluate 	the 	records 	in 	those 	cases 	and
to reconvene 	the 	hearing 	if 	necessary.
3

In Case No. 	LA-CE-1079, 	the Association filed charges on
November 30, 	1979. 	Hearing was held on February 6, 	1980; 	the
hearing 	officer's 	proposed decision 	issued on May 	15, 	1980; 	and
the District 	filed exceptions 	on June 	3, 	1980. 	In Rio Hondo
Community College District 	(11/30/82) 	PERB Decision No. 	260,
the 	Board 	affirmed 	the 	hearing 	officer's 	conclusions 	that 	the
district violated subsection 	3543.5(a) 	on October 2, 	1979, 	by
placing 	a 	letter 	of 	reprimand 	in 	the 	personnel 	file of
Leonora Davila 	because 	of 	her 	exercise 	of 	rights 	guaranteed 	by
EERA and 	by processing 	a 	letter 	of 	reprimand 	to Gary Curtis 	in
a manner 	inconsistent with 	its own procedures, 	and 	that 	it
violated 	subsections 	3543.5(a) 	and 	(b) 	by denying Davila and
Curtis 	their 	right 	to 	be 	represented 	and denying 	the
Association 	its 	right 	to 	represent 	its 	members 	at meetings
called 	to 	discuss 	the 	reprimands.
In Case No. 	LA-CE-1101, 	the Association filed charges on
January 8, 	1980, 	and amended 	its charge on January 22, 	1980.
Hearings were held on June 4, 	5, 	12, 	19 and July 9 and 10,
1980. 	The 	hearing 	officer's 	proposed 	decision 	dismissing 	all
charges 	issued on April 	1, 	1981, 	and 	the Association filed
exceptions on April 20, 	1981. 	In Rio Hondo Community College
District 	(12/28/82) 	PERB Decision No. 	272, 	the Board 	found 	that
the district violated subsections 	3543.5(a) 	and 	(b) 	on
January 16 and 18, 	1980, 	by denying employees Vincent Furriel,
Steve Collins 	and Dan Guerrero 	the 	right 	to representation 	by
4

the Association 	at 	the 	informal 	stage of 	the 	grievance
procedure 	where 	the 	employees 	were 	grieving proposed 	changes 	in
their 	schedules, 	and concurrently denying 	the Association 	its
right 	to represent 	its members.
In Case No. 	LA-CE-1157, 	the Association filed charges on
May 27, 	1980. 	Hearing was 	held on March 30, 	31 and April 1,
1981; 	the 	hearing 	officer's 	proposed 	decision 	issued on
April 13, 	1982, 	and the district filed exceptions on April 30,
1982. 	In 	Rio Hondo Community College District 	(12/31/82) 	PERB
Decision No. 	279, 	the Board held that 	the 	district violated
subsections 3543.5(a), 	(b) 	and 	(c) 	by unilaterally changing
various working 	conditions 	of 	certificated 	employees 	during 	the
1979-80 	school 	year.
FACTS
The District 	and 	the Association 	engaged 	in meeting 	and
negotiating 	during 	the 	1979-80 	school year 	for 	a collective
bargaining 	agreement. 	The Association made 	its 	initial
proposal on June 27, 	1979, 	and explained the proposal on
July 17 and 	31, 	1979. 	The District made 	its 	initial proposal
on October 	2, 	1979. 	From October 	16 to November 	26, 	1979, 	the
District 	explained 	its 	proposal.
On December 	6th, 	10th and 	13th, 	the parties met, 	but 	the
District 	refused 	to 	discuss 	single 	items 	until 	the Association
responded 	to 	its 	total proposal.
5

On January 10, 	1980, 	the Association presented a
comprehensive 	counteroffer 	very 	similar 	to 	its 	original
proposal and, 	upon 	the District's request, 	explained 	the
counteroffer on January 17, 	1980. 	On January 18, 	1980, 	the
District 	presented a report 	of 	its 	financial 	status. 	On
February 6, 	1980, 	the District 	itemized 	the cost of 	the
Association's 	proposal 	and 	promised 	to make 	a 	counterproposal.
The 	District 	distributed 	a 	"minicontract" 	on 	economic
issues 	to the Association on February 8, 	1980. 	On February 14,
1980, 	the Association responded 	to 	the minicontract 	and
proposed changes 	to 	it. 	The District 	gave 	the Association
until March 3, 	1980, 	to accept the minicontract as presented
and 	insisted 	on 	a 	merit 	pay 	provision.
The Association 	rejected 	the 	minicontract, 	and 	the 	parties
declared 	impasse on February 22, 	1980. 	At 	that 	time, 	the
parties 	had 	reached 	an 	understanding 	only on 	the 	first 	three
articles 	of 	the 	collective 	bargaining 	agreement - 	the
agreement, 	term and 	recognition clauses.
A mediation 	session was held on March 	24, 	1980. 	The
mediator 	directed 	the 	parties 	back 	to 	bargaining, 	and 	the
parties 	returned to negotiations on April 14, 	1980, 	meeting on
seven occasions 	thereafter. 	The 	District 	continued 	to 	insist
on a 	minicontract 	with 	a merit 	pay provision. 	The Association
agreed 	on May 6, 	1980, 	to allow a District merit plan outside
the contract. 	However, on May 13, 	1980, 	the Association
6

refused 	to 	consider 	the 	minicontract 	and 	renewed 	its
January 10th counteroffer. 	On that 	date, 	both parties agreed
that 	impasse 	had 	been 	reached 	and 	that mediation 	should
continue. 	A 	second mediation 	session was 	scheduled 	for May 	29,
1980.
Also on May 13, 	1980, 	the Association met and 	adopted a
resolution 	authorizing 	the 	executive 	committee 	of 	the
Association 	to call 	a one-day 	"Day of 	Dignity" 	strike 	to
protest 	the 	stalled 	state 	of 	negotiations. 	No date was 	set 	for
the 	Day of Dignity; 	the 	committee 	was 	authorized 	to call 	it
whenever 	it 	deemed 	it would 	be most 	appropriate.
At a special meeting on May 21, 	1980, 	the District's board
of 	trustees 	adopted 	a 	resolution 	authorizing 	certain 	actions 	to
be 	taken 	by 	the 	District 	" . . . 	when 	the 	Superintendent/
President deems 	that a strike, 	walkout, 	slow-down or other 	type
of work 	stoppage 	by 	the 	employees 	of 	the District exists 	or 	is
likely to exist . 	. 	. 	."
Contrary 	to past practice, 	the Association was 	not 	provided
with 	a 	copy of 	the 	resolution 	in 	advance 	of 	the 	board meeting
or 	at 	the meeting. 	Copies 	of 	the 	resolution were made
available 	the 	following 	day. 	A number 	of 	subjects 	covered 	by
the 	resolution were 	included 	in 	the Association's 	bargaining
proposals 	and were on 	the 	table 	at 	the 	time 	the 	resolution was
adopted. 	Immediately prior 	to 	adoption of 	the 	resolution,
7

Association 	President Mary Ann 	Pacheco 	addressed 	the 	board,
urging 	negotiations 	instead 	of 	adoption 	of 	the 	resolution.3
On May 	27, 	1980, 	the 	resolution was 	formally adopted 	by 	the
board 	by approval of 	the minutes 	of 	its 	prior meeting. 	At
approximately 10:00 	that 	evening, 	President Pacheco, 	acting on
behalf of 	the Association's executive committee, 	decided 	to
hold 	the 	Day 	of 	Dignity 	strike 	the 	following 	day.
The Day of Dignity occurred, 	as 	scheduled, 	on the 	28th of
May, 	with 	90 	percent of 	the Association members 	participating
in the 	strike. 	In response, 	the District 	implemented 	the
following 	measures 	prescribed 	by 	the 	resolution 	passed 	by 	the
board 	of 	trustees: 	deducting 	a day's pay and 	fringe 	benefits
from 	the 	next 	salary warrant 	of 	teachers 	participating 	in 	the
Day of 	Dignity; 	hiring 	temporary 	faculty replacement 	employees;
hiring 	security guards; 	refusing 	to pay 	for 	certificated
overload 	assignments 	not 	performed; 	suspending 	an 	employment
policy; 	and refusing to 	grant leaves 	of 	absence.
3Association President 	Mary Ann 	Pacheco 	testified:
. . . 	I 	stated 	that 	the Association's
negotiations 	team was 	present 	at 	that 	time
and 	ready 	to 	negotiate 	on a 	contract 	that
night, all night, 	all the next day, however
long 	it would 	take 	for 	us 	to 	settle. 	And I
urged 	the 	board 	not 	to consider 	the
resolution 	that was 	pending 	before 	it 	and
that, 	rather 	we get 	back 	to negotiating 	to
settle 	our 	differences.
8

The 	District 	did 	not 	implement 	those 	clauses 	of 	the
resolution 	suspending organizational 	privileges, 	suspending
grievance 	procedures, 	and disciplining 	employees 	who
participated 	in 	the 	strike.
The 	parties 	resumed negotiations 	in mediation 	sessions 	on
May 	29 and June 	5, 	1980. 	On June 	5th, 	the parties 	finally
reached 	a collective 	bargaining 	agreement. 	The 	agreement 	was
ratified 	later 	that 	month.
DISCUSSION
The District 	asserts 	that 	the 	hearing 	officer 	erred
principally 	in 	two 	respects:4
1. 	In 	finding 	that 	the 	District 	failed 	to 	show 	legitimate
business 	necessity 	as 	a defense 	to 	its 	adoption 	and 	partial
implementation of 	the 	emergency 	resolution; 	and
2. 	In 	failing 	to 	find 	that 	the Association 	committed 	an
illegal act 	by 	engaging 	in a one-day 	strike.
For 	the 	reasons 	set 	forth 	below, 	we 	affirm 	the 	hearing
officer's 	conclusions 	as 	to 	the 	emergency 	resolution 	but 	on 	the
District's 	second 	exception, 	we 	reverse 	the 	hearing 	officer 	and
find 	that 	the 	Association's 	strike was 	an 	unfair 	practice.
The 	Emergency 	Resolution
This 	issue 	presents 	the 	question of what 	actions 	a school
4The 	District 	additionally excepts 	to 	a number 	of 	the
hearing 	officer's 	factual 	findings. 	We 	find 	these 	exceptions
to 	be either 	without merit or 	inconsequential.
99

district 	is 	justified 	in 	taking 	to prepare 	for 	a 	threatened
work 	stoppage.5 A district 	unquestionably has 	a 	right 	to
prepare 	for 	a 	strike 	by 	taking 	prudent 	actions 	which 	do 	not
violate 	the 	law.6 Nor 	can 	a district 	be 	faulted 	for 	making
such 	preparations 	at a 	time 	when calm and 	reason prevail, 	well
in advance of an actual emergency. 	However, 	if 	in the name of
preparedness 	a 	district 	proceeds 	to 	violate 	legally 	protected
rights 	of employees 	and 	employee organizations, 	then calm and
reason 	have given way to labor 	law violations.
Here, 	legal and prudent measures 	taken 	by 	the 	District
include: 	hiring 	substitutes 	to replace 	strikers 	(Mackay Radio
(1938) 	304 U.S. 	333 	[58 S.Ct. 	904]) 	and suspending the
employment 	policy which 	interfered 	with 	such 	hiring; 	hiring
5The 	Board 	has 	recently addressed 	this 	issue 	in part 	in
Barstow Unified School District 	(6/11/82) 	PERB Decision No. 	215
and 	Sacramento City Unified School District 	(6/28/82) 	PERB
Decision No. 	216, 	and 	previously 	considered 	the 	similar 	issue
of 	preparation 	for 	a 	threatened 	fiscal crisis 	in San Mateo
County Community College District 	(6/8/79) 	PERB Decision
No. 	94; 	San Francisco Community College District 	(10/12/79)
PERB Decision No. 	105; 	and Sutter 	Union High School District
(10/7/81) 	PERB Decision No. 175.
6National 	Labor 	Relations Board 	(NLRB) 	decisions 	are 	in
accord. 	See Betts Cadillac Olds 	(1951) 	96 NLRB 268, 	286 	[28
LRRM 	1509] 	stating 	that 	an 	employer 	may 	take 	"reasonable
measures . 	. 	. where such measures are, under the
circumstances, 	necessary for 	the 	avoidance of economic loss or
business 	disruption 	attendant 	upon a 	strike." 	And 	see Quaker
State Oil Refining Corp. 	v. 	NLRB 	(1958) 	121 NLRB 334, 	270 F.2d
40 	(3d Cir. 	1959), cert. denied 	(1960) 	361 U.S. 	917. 	(It is
for 	the NLRB to determine 	if 	it 	is 	a reasonable response 	to a
reasonably 	feared 	work 	stoppage.)
10

security 	guards; 	authorizing 	appropriate 	legal 	action
(Mid-America Machinery 	(1978) 	238 NLRB 537, 	546); 	and refusing
to 	pay 	strikers 	for 	time 	not worked, 	including 	fringe 	benefits
(Simplex Wire & Cable Co. 	(1979) 	102 LRRM 1452).
In other 	respects, 	however, 	the 	resolution overstepped 	the
bounds 	of 	the 	law.
Threatened 	Suspension 	of 	Employee 	Organization 	Rights 	and
Grievance 	Procedure
The 	emergency 	resolution 	authorized 	the 	suspension 	of
employee organization 	rights, 	including 	dues 	deduction and
access 	to college mail, 	bulletin boards, 	telephones 	and meeting
rooms,7 and 	also authorized 	the 	suspension of 	the 	faculty
7Section 	10 of 	the Resolution provides:
Suspension 	of 	Employee 	Organization
Privileges
Any 	employee 	organization 	which 	urges 	its
members 	to participate 	in a work 	stoppage or
other 	illegal 	activity as 	outlined 	above
shall have 	its 	privileges 	as 	an 	acknowledged
employee 	organization 	withdrawn 	including,
but 	not 	limited 	to:
A. 	Use of College mail 	service.
B. 	Use of College 	bulletin 	boards.
C. 	Use 	of College 	telephone 	facilities 	for
organizational purposes.
D. 	Use 	of College 	premises 	for 	meeting
purposes.
E. 	Privilege 	of 	employee 	organization
officers 	and 	representatives 	to 	visit
11

grievance 	procedure.8 These 	provisions 	of 	the 	resolution
were 	never 	implemented.
Employee 	organization 	rights 	are 	protected 	by 	section
3543.19 and 	include 	the 	right 	to dues 	deductions, 	reasonable
college 	property other 	than 	regularly
assigned 	by 	the District.
F. 	Dues 	deduction.
8Section 	2 of 	the 	Resolution provides:
Suspension of Academic Due Process, 	Faculty
Grievance 	(Certificated 	Personnel) 	C P . 	5005
The 	provisions 	of 	this 	resolution 	and 	the
application 	thereof 	to 	bargaining 	unit
members 	are 	specifically 	determined 	not 	to
be 	subject 	to 	the 	existing 	guideline 	for
"Academic Due Process, 	Faculty Grievance
(certificated personnel)" C P . 	5005. 	No
bargaining 	unit member 	or 	the Rio Hondo
College 	Faculty Association/CTA-NEA 	shall 	be
permitted 	to 	file or 	process 	a 	grievance
regarding 	any 	application 	or 	effect 	of 	this
resolution or 	its 	effect or 	operation 	upon
the Association.
9Section 3543.1 provides, 	in pertinent part:
(a) 	Employee organizations 	shall have 	the
right 	to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except that once 	an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	Section 	3544.1
or 	3544.7, 	respectively, 	only that employee
organization may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer. 	Employee organizations may
establish 	reasonable 	restrictions 	regarding
who may 	join 	and may make 	reasonable
provisions 	for 	the 	dismissal of 	individuals
from membership.
12

access, 	and 	the 	right to represent 	its members 	in grievances.
Mount 	Diablo 	Unified 	School 	District 	(12/30/77) 	EERB10
Decision No. 	44, 	Rio Hondo Community College District
(12/28/82) 	PERB Decision No. 	272.
Clearly, 	then, 	the District's 	resolution 	threatened 	to 	take
away 	the Association's 	statutorily mandated 	rights. 	Apparently
relying 	on 	the 	fact 	that 	these 	provisions 	were 	not 	implemented,
the 	District 	offered 	no 	justification 	for 	the 	threatened
suspension 	of 	these 	statutory 	rights.
A 	threat 	to punitively 	suspend 	statutory 	rights 	tends 	to
undermine 	the 	status 	of 	the 	exclusive 	representative 	and 	has 	a
chilling 	effect 	on employee 	activity. 	This 	is 	so 	because 	an
(b) 	Employee organizations 	shall have 	the
right 	of 	access 	at 	reasonable 	times 	to areas
in which employees 	work, 	the 	right 	to use
institutional bulletin boards, mailboxes,
and other 	means 	of communication, 	subject 	to
reasonable regulation, 	and 	the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the 	purpose 	of 	meetings 	concerned 	with
the 	exercise 	of 	the 	rights 	guaranteed 	by
this chapter.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
(d) 	All 	employee organizations 	shall have
the 	right 	to 	have membership dues 	deducted
pursuant 	to Sections 	13532 	and 	13604.2 of
the Education Code, 	until 	such 	time as an
employee organization 	is 	recognized 	as 	the
exclusive 	representative 	for 	any of 	the
employees 	in an appropriate 	unit, 	and 	then
such 	deduction 	as 	to any 	employee 	in 	the
negotiating 	unit 	shall 	not 	be 	permissible
except 	to 	the 	exclusive 	representative.
10Prior 	to January 1, 	1978, 	PERB was 	known as 	the
Educational 	Employment 	Relations 	Board.
13

employer's 	threat 	is 	backed 	by 	the 	considerable 	power 	that 	an
employer 	holds over 	an employee. 	Even 	if acting 	illegally, 	an
employer 	can 	withhold 	employment 	and 	earnings 	for 	months 	or
even years 	before 	a legal 	remedy can 	be 	effected. 	Faced 	by
such 	potential 	hardship and dire 	consequences, 	an 	employee
might well 	be persuaded 	to 	forego 	rights, 	even 	those 	provided
by 	the 	Legislature 	and 	protected 	by 	the Board, 	rather 	than 	test
the 	employer's 	authority and 	intent.
In Barstow, 	supra, 	the Board 	summarily affirmed 	the hearing
officer's 	finding 	that, 	even without 	implementation, 	the 	threat
to 	suspend 	statutorily 	protected 	employee 	organization 	rights
in 	an 	emergency 	resolution 	constitutes 	a violation of
subsection 3543.5(a). 	The decision states:
The 	District offers 	no 	support 	for 	an
argument 	that 	a 	school district 	has 	a 	right
to 	rescind 	statutory 	rights 	nor 	can 	one
reasonably 	be 	made 	. . . .
Following 	this holding, 	the Board 	finds 	that 	the 	threatened
suspension 	of 	the 	statutorily 	guaranteed 	employee 	organization
rights of dues deductions, 	reasonable access, 	and 	the 	right to
represent members 	in grievances, 	constitute separate violations
of subsection 3543.5(a).
Change 	in Leave Policy
A 	unilateral 	change 	by 	an 	employer 	concerning 	a matter
which 	is a proper 	subject of negotiation 	is, 	absent a valid
affirmative defense, 	a per 	se refusal to negotiate. 	Moreno
Valley Unified School District 	(4/30/82) 	PERB Decision No. 	206;
14

San Mateo Community College District, 	supra; 	Pajaro Valley
Unified School District 	(5/22/78) 	PERB Decision No. 	51.
Leave 	policy 	is 	a 	specifically 	enumerated 	subject 	within
the 	scope of 	representation.11 The 	record 	indicates 	that 	the
Association 	had 	introduced 	a 	proposal 	on 	leave 	policy 	during
the 	course 	of negotiations, 	and 	that Association President
Pacheco 	addressed 	the 	board 	and 	requested 	negotiations 	on 	the
matters 	contained 	in 	the 	resolution 	immediately 	before 	the
board 	adopted 	the 	resolution.
Section 	9 	of 	the 	resolution 	concerns 	leave 	policy.12
While much 	of 	this 	section 	simply 	reiterated 	existing 	policy
11Subsection 3543.2(a) 	provides, 	in pertinent part, as
follows:
(a) 	The 	scope of 	representation shall be
limited to matters relating 	to wages, 	hours
of employment, 	and other 	terms 	and
conditions 	of 	employment. 	"Terms and
conditions 	of employment" 	mean 	health and
welfare benefits 	. 	. 	. leave, transfer and
reassignment policies, 	safety conditions of
employment, class size, procedures to be
used 	for 	the 	evaluation of 	employees,
organizational security . 	. 	. 	, procedures
for processing grievances 	. 	. 	. 	, and the
layoff 	of 	probationary 	certificated 	school
district 	employees 	. . . . 	(Emphasis 	added.)
12section 	9 of 	the 	resolution provides 	as 	follows:
Leaves 	of 	Absence-Certificated
Provisions of Board Policy 5400, 	"Leaves of
Absence 	- Certificated," 	are 	modified 	as
follows:
Leaves 	of Absence 	- All 	employee 	absences
15

authorizing 	the District 	to 	require 	verification of 	illness 	and
to withhold pay 	for 	nonperformance 	of duties, 	in other 	respects
this 	section 	changed 	existing 	board 	policy.
must 	be 	substantiated 	by written 	proof 	of
the 	need 	for 	the 	leave.
a. 	Sick Leave 	- Employees 	requesting 	pay
for 	sick 	leave must 	complete 	a 	signed
affidavit of 	illness 	and 	provide 	a
doctor's 	certificate 	of 	illness 	within
five 	working 	days of 	the 	last 	day of
absence.
b. 	Personal Necessity - Personal Necessity
leave 	will 	only 	be 	allowed 	for 	emergency
reasons 	as 	determined 	by 	the
Superintendent/President.
Unauthorized 	Leave
a. 	Unauthorized 	leave 	is 	defined 	as
non-performance 	of 	those 	duties 	and
responsibilities 	assigned 	by 	the
district 	and 	its 	representatives,
including 	all duties 	and
responsibilities 	as 	defined 	by 	the
Education Code, 	rules 	and regulations of
the 	Governing 	Board 	of 	California
Community Colleges, 	and policies 	and
regulations 	of 	the Board of Trustees 	of
the 	Rio Hondo Community College
District. 	Such 	unauthorized 	leave 	may
include 	but 	is 	not 	limited 	to 	collective
refusals 	to provide 	service,
unauthorized 	use 	of 	sick 	leave,
unauthorized 	use 	of 	other 	leave
benefits, 	non-attendance at required
meetings, 	and 	failure 	to perform
supervisory 	functions 	at
college-sponsored 	activities.
b. 	An 	employee 	is 	deemed 	to 	be on
unauthorized 	leave 	at 	such 	time 	and 	on
such occasions 	as 	the 	employee may
16

Specifically, 	existing 	board 	policy 	5400 	provided 	that, 	while
prior 	approval was 	generally 	required 	for 	personal 	necessity
leave, 	no prior 	approval was 	required 	for 	leave occasioned 	by
the 	death 	or 	serious 	illness 	of 	a member 	of 	an 	employee's
immediate 	family, 	or 	for 	an 	accident 	involving an 	employee's
person 	or 	property or 	that 	of 	a member 	of 	an 	employee's
immediate 	family. 	The 	school 	board 	resolution 	eliminated 	these
exemptions 	from 	the 	prior 	approval 	requirement. 	In addition,
the 	resolution 	adopted 	a 	higher 	standard 	for 	granting 	personal
necessity 	leave, 	changing 	the 	language 	from 	"circumstances
serious 	in nature" 	to 	"emergency reasons."
The 	District 	contends 	that 	its 	need 	to protect 	itself
against 	a 	threatened 	strike 	constitutes 	a 	valid 	business
necessity defense 	to 	its 	unilateral 	change 	in 	leave 	policy.
In Sacramento City Unified School District, 	supra, 	this
Board 	considered 	an 	asserted 	defense 	of 	"necessity" 	where 	the
absent 	himself/herself 	from 	required
duties 	without 	approval.
c. 	Unauthorized 	leave 	shall 	constitute 	a
breach 	of 	contract 	and 	therefore 	may
result 	in 	the 	initiation 	of 	dismissal
procedures, 	loss of 	salary or 	such
disciplinary 	action 	as 	may 	be 	deemed
appropriate 	by 	the Board 	of 	Trustees.
d. 	Beginning 	on 	the 	first 	day 	of
unauthorized leave, 	no warrant shall 	be
drawn 	in 	favor 	of 	any 	employee 	for 	the
days 	for 	which 	he/she 	has 	not 	faithfully
performed 	all 	duties 	prescribed
(Education Code Section 87828) .
17

district 	adopted 	an 	emergency 	resolution 	retroactively 	changing
leave 	policy 	the 	day 	following 	a one-day 	strike. 	The Board
rejected 	the 	district's 	proffered defense, 	finding 	that 	the
change 	in 	leave 	policy was 	not 	necessary 	to avert 	a 	serious
threat 	of 	interruption 	of 	educational 	services.
The 	same 	reasoning 	applies 	to 	the 	change 	in 	leave 	policy
here. 	The District could 	have 	achieved 	the 	same 	result 	by
simply enforcing or 	announcing 	its 	clear 	intent 	to continue 	to
enforce 	the 	existing policy, 	as 	that 	policy did 	not provide
for, 	or 	allow, 	the use of personal leave 	to participate 	in a
work 	stoppage. 	Therefore, 	this change 	in leave 	policy cannot
be 	found 	to 	be 	reasonably 	"necessary 	to 	avert 	a 	serious 	threat
of 	interruption of 	educational 	services" 	and 	is 	not 	justified
by 	business 	necessity.
For 	this 	reason, 	the Board 	finds 	that 	the 	unilateral change
in leave 	policy constitutes 	a refusal 	to 	bargain 	in violation
of subsection 	3543.5(c) 	and 	subsections 	(a) 	and 	(b)
derivatively. 	San Francisco Community College District, 	supra;
Barstow Unified School District, 	supra.
The 	One-Day 	Strike
The 	District 	argues 	that 	public 	employee 	strikes 	are
illegal, 	citing a number 	of Court 	of Appeal cases 	as
authority.13 According 	to 	the District, 	if a strike 	is
13Stationary 	Engineers 	Local 	39 	v. 	San Juan Suburban
Water District 	(1979) 	90 Cal.App.3d 796 	[153 Cal.Rptr. 	666];
18

illegal, 	this Board may not 	find 	it 	to 	be 	justified on any
grounds.
However, 	as 	discussed more 	fully 	in Modesto City Schools
(3/8/83) 	PERB Decision No. 	291, 	the appellate cases relied on by
the 	district 	are 	not 	controlling 	on our 	decision 	here. 	All 	of
these 	cases 	were 	decided 	before 	the 	effective 	date 	of EERA
under 	substantially different 	statutes14 which, 	unlike EERA,
do 	not 	provide 	a 	comprehensive 	bargaining 	scheme 	or 	enforcement
by an expert 	administrative 	agency. 	Indeed, 	in 	the most 	recent
of 	the 	cases cited 	by 	the District, 	the 	court expressly
Pasadena 	Unified 	School District 	v. 	Pasadena 	Federation 	of
Teachers 	(1977) 	72 Cal.App.3d 100 	[140 Cal.Rptr. 	41];
Los Angeles 	Unified School District v. 	United Teachers 	(1972)
24 Cal.App.3d 142 	[100 Cal.Rptr. 	806]; 	Trustees of California
State Colleges v. 	Local 1352, 	San Francisco State Teachers
(1970) 	13 Cal.App.3d 863 	[92 Cal.Rptr. 	134]; 	Los Angeles
Metropolitan Transit Authority v. 	Brotherhood 	of 	Railroad
Trainmen 	(1960) 	54 Cal.App.2d 684 	[8 Cal.Rptr. 	1 ] .
1 4 The Winton Act, 	formerly section 	13080 	et 	seq. 	of 	the
Education Code, 	governed 	employer-employee 	relations 	in
California's public 	schools 	prior 	to 	the 	enactment 	of EERA.
The Meyers-Milias-Brown Act, 	section 3500 et 	seq. 	of 	the
Government 	Code, 	governs 	local government 	employer-employee
relations.
The George Brown Act, 	section 	3525 et seq. 	of 	the
Government Code, 	now governs 	employer-employee 	relations 	for
managerial and 	confidential state 	employees. 	Prior 	to 	the
passage 	of 	the 	State Employer-Employee Relations Act 	(SEERA),
Government 	Code 	section 	3512 	et 	seq., 	and 	the Higher Education
Employer-Employee Relations Act 	(HEERA), 	Government Code
section 	3560 	et 	seq., 	all 	State 	and 	higher 	education 	labor
relations 	were 	governed 	by 	the George Brown Act.
19

acknowledged 	the 	limited 	scope 	of 	its 	holding 	in 	light of 	the
enactment of EERA. 	It 	stated:
We 	leave 	for 	future 	adjudication 	the
question 	of 	whether 	illegal 	strikes 	by
educational employees 	after 	the 	effective
date of 	these 	enactments 	[EERA] 	are 	"unfair
practices" 	within 	the 	exclusive 	jurisdiction
of 	the 	board. 	Pasadena Unified 	School
District, supra, 72 Cal.App.3d 100, 114.
Moreover, 	in San Diego Teachers Association v. 	Superior
Court 	(1979) 	24 Cal.App.3d 1 	[154 Cal.Rptr. 	893], 	the Supreme
Court 	reviewed 	the 	state 	of 	the 	law 	regarding 	public 	school
employee 	strikes 	in California, 	considering 	the Court of Appeal
cases cited 	by 	the District, 	and 	declined 	to grant 	imprimatur
to 	the 	reasoning and holdings of 	those 	cases. 	However, 	the
Court 	did clearly decide, 	based on 	"the 	comprehensiveness 	of
the EERA scheme" 	and 	the 	"marked 	similarities 	between EERA and
the 	[National Labor Relations Act]," 	that 	the preemption
doctrine, which has 	long 	been applied 	to the NLRB, 	applies
similarly to PERB. 	Thus, 	the Court held 	that, 	"PERB has
exclusive 	initial 	jurisdiction 	to determine whether 	a public
school 	employee 	strike 	is an unfair 	practice 	and what, 	if 	any,
remedies PERB should pursue." 	Id., 	at p. 	14.
-
Following 	the 	Supreme Court's San Diego decision, 	this
Board 	has 	exercised 	its 	exclusive 	initial 	jurisdiction 	and
applied 	its 	expertise 	to 	determine 	whether 	public 	school
strikes 	were 	unfair 	practices 	in Fremont 	Unified 	School
District 	(6/19/80) 	PERB Decision No. 	136, 	Fresno Unified School
20

District 	(4/30/82) 	PERB Decision No. 	208, 	Westminster School
District 	(12/31/82) 	PERB Decision No. 	277, 	and Modesto City
Schools, supra.
In the 	instant case, 	the 	hearing officer, 	in a rather
cursory discussion, 	found 	that 	this 	strike 	"falls 	squarely
within 	the 	precedent 	set 	by 	the Board 	itself 	in Fremont." 	He
characterized 	that 	case 	as 	establishing 	a 	"totality of 	conduct"
test, 	and concluded 	that he:
. 	. 	. 	[had] 	little discretion but to
consider 	the 	one 	day 	strike 	of 	the
Association 	as 	only 	one 	significant 	factor
in 	the 	totality of 	the 	employee
organization's 	conduct 	during 	negotiations.
We 	find 	that 	the 	hearing 	officer 	misstated 	our 	holding 	in
Fremont, 	and 	consequently misapplied 	it 	to 	the 	facts of 	this
case. 	In Fremont, 	the 	Board 	determined 	that 	the 	work stoppage
at 	issue 	there did 	not 	constitute 	an 	unlawful 	refusal 	to
participate 	in 	good 	faith 	in 	the 	impasse 	procedures.15
Contrary 	to 	the 	hearing 	officer's 	characterization, 	this
decision was 	based on 	two distinct 	findings: 	(1) 	the 	totality
of 	the 	employee 	organization's 	"overall 	conduct 	during
mediation 	and 	factfinding 	in 	fact 	negate 	an 	inference 	of 	bad
faith," 	and 	(2) 	"the 	work 	stoppage 	was provoked 	by 	the
15In 	an 	unpublished 	opinion, 	the Court of Appeal 	reversed
the Board's 	finding 	that 	the District 	committed 	an 	unfair
practice. 	However, 	it did not disturb the 	rule of 	law 	stated
therein 	nor 	the Board's 	finding 	that 	the 	strike 	was 	protected,
Fremont 	Unified School 	District 	(3/25/82) 	PERB 	Decision
No. 136a.
21

District's 	own 	unlawful 	conduct 	and was 	undertaken 	as 	a 	last
resort."
Conversely, 	in Westminster School District, 	supra, where
"no 	employer 	provocation 	is 	shown 	and 	a 	strike 	is motivated
solely by economic considerations 	to gain concessions 	at 	the
bargaining 	table," 	we 	found 	that 	the 	strike 	itself 	amounts 	to 	a
refusal 	to negotiate. 	If 	undertaken prior 	to 	the onset of
impasse, 	such 	strike violates 	the duty to negotiate 	in good
faith. 	If undertaken during 	impasse, 	such 	a strike also
violates 	the 	duty 	to participate 	in 	good 	faith 	in 	the 	impasse
procedures.
Therefore, 	it 	is necessary to determine whether 	this 	strike
was 	"provoked 	by 	the District's 	own 	unlawful 	conduct 	and was
undertaken as a last resort" 	(Fremont) 	or 	if 	it was motivated
"by 	economic 	considerations 	to 	gain concessions 	at 	the
bargaining table" 	(Westminster).
Provocation 	is 	a question of 	fact. 	Under 	the NLRA, 	for 	a
strike 	to be deemed 	an unfair 	practice 	strike, 	it must 	be
caused 	by an 	unfair 	labor 	practice. 	The mere 	fact 	that 	an
unfair 	labor 	practice 	is 	committed 	prior 	to a 	strike 	does 	not
necessarily 	render 	that 	strike 	an 	unfair 	labor 	practice
strike. 	Latrobe Steel Co. 	v. 	NLRB 	(1980) 	630 F.2d 171 	[105
LRRM 2393, 	2400], 	citing NLRB v. 	Broadmoor Lumber Co. 	(9th Cir.
1978) 	578 F.2d 238, 	242; 	NLR
- B v. 	Colonial Haven Nursing Home,
Inc. 	(7th Cir. 	1976) 	542 F.2d 691, 	704-5 	[93 LRRM 2241].
22

Rather, 	the 	burden 	rests 	with 	the 	striking employee
organization 	to 	prove, 	in 	the 	nature 	of an affirmative defense,
that 	the 	District's 	unfair 	labor 	practice 	in 	fact 	caused 	the
strike. 	To 	ascertain 	the actual cause of a strike, 	it 	is
necessary 	to 	consider 	the 	record 	as 	a whole 	(NLRB v. 	Wichita
Television Corp. 	(1960) 	277 P.2d 579 	[45 LRRM 3096, 	3100]),
cert, 	denied 364 U.S. 	871), 	including such 	indicators as union
statements 	as 	to 	the 	cause 	of 	the 	strike 	in 	testimony 	(Latrobe
Steel, 	supra), 	at the time a strike vote was taken, or 	in the
content 	of 	picket 	signs 	and 	handbills 	used 	during 	the 	strike
(Wichita Television, 	supra), 	the closeness 	in time between the
unfair 	practice 	and 	the 	strike, 	union expression of 	opposition
to 	the 	unfair 	practice 	prior 	to 	the 	strike 	(Jordan Bus Company
(1954) 	107 NLRB 	717), 	and 	the nature and seriousness of 	the
unfair 	practice, 	as well as 	any other 	relevant 	evidence.
In 	the 	instant case, 	the 	hearing 	officer 	did 	not 	address
the 	question of provocation. 	Our 	de 	novo 	review of 	the 	entire
record 	in 	this 	case 	compels 	us 	to conclude 	that 	the Association
has 	failed 	to carry 	its 	burden 	of proof. 	Though 	the 	District
committed 	several 	unfair 	practices 	which 	could 	arguably 	have
provoked 	the 	strike, 	the 	evidence 	presented 	by 	the Association
fails 	to 	establish a 	causal 	connection 	between 	these 	unfair
practices 	and 	this strike. 	Rather, 	the prevailing weight of
evidence 	indicates 	that 	the 	Day of 	Dignity was 	conceived 	and
conducted 	to protest 	the 	stalled 	state 	of 	negotiations 	and
23

thereby 	bring 	pressure 	to 	bear 	on 	the District 	to 	grant
concessions 	at 	the 	bargaining 	table. 	The District's conduct 	in
negotiations 	arguably 	evidences 	surface 	bargaining 	and 	illegal
delay, 	violations which might provoke a strike. 	However, 	the
Association, 	which 	generally 	showed 	no 	hesitancy 	to 	file 	unfair
practice charges, 	never 	charged 	the 	District with 	an unfair
practice 	by 	its 	conduct 	at 	the 	bargaining 	table 	and, 	as 	the
issue was 	not 	fully litigated, 	there 	can 	be no 	finding of an
uncharged 	violation. 	(Santa 	Clara Unified 	School 	District
(9/26/79) 	PERB Decision No. 	104.)
The only 	direct 	evidence 	concerning 	the 	cause 	of 	the 	strike
consists 	of 	the 	testimony of Association President Pacheco, 	two
strike 	leaflets 	introduced 	by 	the Association 	and 	a 	newspaper
article 	introduced 	by 	the 	District. 	As 	the only witness 	on 	the
issue 	of motivation, 	we 	rely 	heavily on 	the 	testimony of
President 	Pacheco.
She 	testified 	that 	"[The] 	primary purpose was 	to get 	out
information 	about 	the 	stalled state of 	our 	negotiations" 	(Case
No. 	LA-CE-1158, RT 19) 	and that, 	"the Association felt that we
were 	not 	getting 	anywhere 	in negotiations 	and 	that 	it was 	very
important 	that we 	get 	the message 	out 	to 	the 	community."
(Case No. 	LA-CE-1158, 	RT 27.) 	Only after a series of leading
questions 	by 	the Association's 	attorney 	did 	Pacheco 	acknowledge
that, 	in addition to the stalled state of negotiations, 	there
were other 	reasons 	for 	the 	strike; 	"the major 	one was 	the
24

passage 	of 	the 	resolution on 	emergency 	procedures." 	(Case
No. 	LA-CE-1158, 	RT 	2 8 . ) 1 6 Then, 	in 	restating 	her 	testimony,
she 	said:
The 	reasons 	for 	the 	day 	of 	dignity were 	to
get 	our 	message 	to 	the 	community 	and 	the
other purpose, primary one, not purpose, 	let
16 The 	transcript 	reveals 	the 	following 	exchange 	at
pp. 	27-28.
Q. 	Did 	the 	fact 	that 	the Board 	of Trustees
had 	passed 	the 	resolution 	on 	a 	—
SISNEROS: 	Objection, Mr. Hearing Officer.
Q. 	(By Mr. 	Gustafson) 	— 	emergency 	policy
rules 	and 	regulations 	on 	—
HEARING OFFICER: 	Just a moment.
Q. 	(By Mr. 	Gustafson) 	— May 	21 	have
anything 	to do with 	the 	decision 	to hold 	a
day 	of 	dignity?
HEARING OFFICER: 	All 	right. 	There's 	—
WITNESS: 	Yes, 	very much.
HEARING OFFICER: 	Hold on. 	There's 	been 	an
objection 	to 	that last 	question.
SISNEROS: 	I 	think he may be 	leading 	the
witness.
HEARING OFFICER: 	Yeah, 	I 	think you were
leading.
GUSTAFSON: 	I didn't suggest 	an 	answer. 	She
can answer 	yes or 	no.
SISNEROS: 	(Inaudible.)
HEARING OFFICER: 	It 	sounded 	leading 	to me.
I'd 	like you 	to 	reask 	that 	question. 	Can
25

me 	rephrase 	that. 	The other 	reason 	for 	it
was 	that 	we 	felt 	that 	we were 	getting
absolutely 	nowhere 	with 	the 	District 	and 	the
passage 	of 	the 	emergency 	resolution was 	a
prime 	example 	of 	how 	the District was
responding 	to our 	good 	faith 	efforts 	to 	try
to negotiate with 	them. 	(Case
NO. LA-CE-1158, RT 29.)
you 	ask 	it 	in 	a 	—
GUSTAFSON: 	Nonleading manner.
HEARING 	OFFICER: 	— 	nonleading 	manner.
GUSTAFSON: 	If you give me a minute, 	I'll
think 	of 	something.
Q. 	(By Mr. 	Gustafson) 	You've already
indicated, Ms. 	Pacheco, one reason why the
Association made 	the 	decision on May 	27 	to
stage 	a day of dignity, 	are 	you aware of any
other 	reasons?
A. 	Yes, 	there were 	other 	reasons?
Q. 	Could 	you 	tell 	us 	what 	those other
reasons 	are?
A. 	The major 	one 	was 	the 	passage of 	the
resolution on 	emergency 	procedures.
At 	no 	time 	did 	Pacheco mention 	any 	unfair 	practices 	prior
to passage 	of 	the 	emergency 	resolution.
Thus, 	it is clear 	that to Pacheco herself, 	the emergency
resolution 	provided 	at most 	only 	a 	secondary 	reason 	for 	the
strike 	in 	that 	it was viewed 	as a 	"prime example" 	of 	the
District's 	intransigence 	in negotiations. 	The 	documentary
evidence 	introduced 	by 	both 	parties 	supports 	this 	conclusion.
The District's Exhibit A in Case No. 	LA-CE-1158 	is 	a reprint of
26

an article 	from the Los Angeles Times dated May 22, 	1980.
There 	Pacheco 	recited 	the Association's 	bargaining 	demands 	and
is 	quoted 	as 	saying 	that 	teachers 	are 	prepared 	to consider
calling 	an 	all-out 	strike 	unless 	negotiations 	are 	resumed 	and 	a
satisfactory agreement 	is 	reached. 	Similarly Association
Exhibits 	7 and 8 	in Case No. 	LA-CO-141, 	two flyers 	used during
the 	strike, 	concentrate on 	bargaining 	issues. 	"Why Are RHC
Teachers Striking?" 	recites certain 	"Facts" 	and concludes,
"Won't you 	join 	us 	in demanding 	that 	the 	board 	provide 	a 	just
and 	fair 	contract 	for 	teachers? " 	Similarly, 	"For 	The Record"
presents 	the 	history of 	negotiations 	in 	greater 	detail 	and
concludes on 	the 	bottom line, 	"We want a 	contract NOW!"
Though 	both 	of 	these 	leaflets 	allude 	to 	various 	unfair
practice 	charges 	that were 	filed 	against 	the District, 	the
reference 	is 	incidental 	to 	the main 	thrust of 	the 	leaflets,
the 	protracted 	negotiations.
In addition, 	Pacheco's 	testimony 	indicates 	that 	the 	strike
was 	planned 	prior 	to 	the 	passage 	of 	the 	emergency 	resolution
and 	cannot 	be 	said 	to 	be caused 	by 	it. 	The 	Faculty Association
passed 	a 	resolution on May 	13,
that 	the 	Faculty Association 	executive
committee 	be 	authorized 	to 	call 	a one-day day
of dignity, 	a work stoppage 	to emphasize 	to a
community, 	in particular 	the problems 	that we
have 	been 	having 	throughout 	the 	year 	of
negotiations. 	(Case No. LA-CO-141, 	RT 138.)
A 	strike 	planning 	committee 	was 	created. 	While 	no 	specific
date was 	set 	at 	that 	time, 	Pacheco stated, 	"The Faculty
27

Association 	had 	the 	authority 	to 	call 	a 	one-day walkout
whenever 	it deemed 	it would 	be most 	appropriate." 	(Case No.
LA-CE-1158, 	RT 76.) 	(Emphasis added.) 	Even before May 	21,
"there 	were 	a 	series of dates 	that 	were 	being 	considered 	and
the 	final 	decision 	had 	not 	yet 	been made." 	(Case
No. LA-CE-1158, RT 75.)
There was 	at 	the 	time 	a 	kind 	of 	lottery and
poll 	that was 	going 	around 	the 	campus 	and
people were 	saying dates 	all over 	the 	place,
if 	somebody happened 	to 	hit 	right on 	the
28th, 	they may have done 	that, 	but the
-	authority to call 	that date was 	in 	the
executive 	committee 	and 	the 	executive
committee 	had 	given 	that 	authority 	to me.
(Case No. LA-CE-1158, RT 81.) 	(Emphasis
added.)
We 	find, 	based 	on Pacheco's 	unwavering 	testimony, 	that 	the
Association 	had 	decided on May 	13 	to hold 	a 	one-day 	strike.
The 	executive 	committee 	and 	Pacheco 	were 	authorized 	only 	to 	set
the 	exact 	date. 	In 	passing 	an emergency resolution 	that
unilaterally 	and 	illegally 	changed 	conditions 	of 	employment 	and
illegally 	threatened 	to 	deprive 	employees 	of 	statutory 	rights,
the 	District 	committed 	a 	serious 	unfair 	practice 	that 	cannot 	be
excused 	by 	its 	failure 	to carry out all 	of 	its 	threat. 	But,
while 	the 	District's passage 	of 	the 	emergency 	resolution may
have 	triggered 	Pacheco's 	decision 	to 	set 	the 	date 	for 	the
following 	day, 	this 	event 	influenced 	only the 	timing 	of 	the
strike, 	not its occurrence.
Moreover, 	the nature of the District's unfair practice, 	an
emergency 	resolution which was 	itself 	a 	response 	to 	the
28

Association's 	well-publicized 	strike 	threat, 	blurs 	the 	chain of
causation. 	Given 	the 	paucity of direct 	evidence 	of motivation,
we 	decline 	to 	invoke 	the 	bootstrapping 	logic 	and 	circular
reasoning 	necessary 	to 	conclude 	that 	this 	strike was 	caused 	by
a 	resolution 	adopted 	to prepare 	for 	it.
In conclusion, while the Association argued 	repeatedly, 	in
its answer, 	brief, 	exceptions and at hearing, 	that the strike
was 	"provoked 	by 	the District's own 	unlawful 	conduct 	and 	was
undertaken 	as 	a last 	resort," 	the Association 	simply 	failed 	to
prove 	its 	argument. 	During 	the 	period 	in which 	the 	parties
were 	engaged 	in negotiations, 	the Association 	filed 	at least
six unfair 	practice charges 	against 	the 	District. 	Three 	of
these 	charges were 	sustained on 	appeal 	to 	this Board 	and 	are
summarized 	in 	the 	Procedural History section of 	this 	decision.
Yet 	at 	no 	time 	did 	the Association 	charge 	that 	the District
engaged 	in 	bad 	faith or 	surface 	bargaining 	at 	the 	table. 	At
the 	hearing on 	this matter, 	Association counsel 	claimed 	to 	have
been caught 	"totally by 	surprise" 	by 	the District's
presentation 	of 	testimony 	regarding 	the 	history 	of 	negotiations
between the parties. 	(Case No. 	LA-CO-141, 	RT 56.) 	In response,
the Association moved 	to 	incorporate 	the 	records 	in 	the
above-noted 	unfair 	practice 	cases. 	That motion was 	granted 	so
that 	the 	records 	in 	those 	cases 	and 	the Board's 	decisions
therein are properly before 	us. 	Nonetheless, 	no evidence 	in
the 	record, 	apart 	from counsel's 	argument, 	supports 	a finding
of a causal connection 	to 	the 	strike. 	Without more, 	the mere
29

fact 	that 	unfair 	practices 	were 	committed 	is 	insufficient 	for
this purpose. 	Latrobe Steel Co. v. NLRB, 	supra.
We 	conclude 	that 	this 	one-day 	strike 	was 	motivated 	by
economic considerations 	to gain concessions 	at 	the 	bargaining
table and, 	therefore, 	amounts to a refusal to bargain in good
faith 	in violation of subsection 	3543.6(c). 	In addition,
because 	the 	strike 	occurred 	while 	statutory 	impasse 	procedures
were underway, 	it also violates 	subsection 3543.6(d).
Westminister School District, 	supra.
REMEDY
-Subsection 	3541.5(c) 	of 	the EERA 	sets 	forth 	the PERB's
remedial authority 	in unfair 	practice cases. 	It provides:
The 	board 	shall 	have 	the power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or 	without
back pay, 	as will effectuate 	the policies of
this chapter.
This 	section 	is 	similar 	to 	section 	10(c) 	of 	the National Labor
Relations Act and, 	therefore, 	in fashioning the appropriate
relief, 	cognizance 	is 	taken of applicable 	federal precedent.
(Fire Fighters Union v. 	City of Vallejo 	(1974) 	12 Cal.App.3d
608 	[116 Cal.Rptr. 	507; 	87 LRRM 2453].)
In 	the 	present case, 	the District 	has unilaterally
disrupted 	the 	status quo. 	A remedy 	requiring 	the 	District 	to
return 	to 	the 	status 	quo 	ante 	is 	appropriate 	to effectuate 	the
policies of 	the EERA because 	it restores, 	to the 	extent
30

possible, 	the 	positions 	the 	parties occupied prior 	to 	the
unilateral change 	in the 	status quo. 	Plycoma Veneer Co. 	(1972)
196 NLRB 1009 	[1008 LRRM 1222]. 	Consequently, 	the District
shall 	be 	ordered 	to restore 	the 	leave 	policies 	as 	they 	existed
on May 	21, 	1980, 	unless 	and until 	the parties have exhausted
the 	statutory 	impasse 	procedures 	or 	agree 	otherwise 	by 	their
adoption of 	a negotiated 	agreement. 	In furtherance of 	this
goal, 	the District 	shall also 	be ordered 	to make 	the affected
employees whole 	by paying 	them the wages 	(i.e., 	leave) 	they
would 	have 	received 	had 	the 	unilateral 	changes 	outlined 	in 	the
decision not 	been made, 	with 	interest at 	the 	rate of 7 	percent
per 	annum. 	Notwithstanding 	the 	above, 	the District, 	pursuant
to 	its 	past practice, 	may require 	verification 	if 	it 	reasonably
suspects 	that 	an 	individual employee 	has 	abused 	his 	or 	her
leave. 	Any 	employee whose 	absence 	did 	not 	conform 	to 	the 	leave
policies 	as 	they existed on May 21, 	1980, 	need 	not 	be paid 	for
that day.
This 	remedy 	is 	consistent 	with NLRA precedent. 	See NLRB v.
Allied Products Corp. 	(1975) 	218 NLRB 1246 	[89 LRRM 1441]
enforced as modified 	(6th Cir. 	1977) 	548 F.2d 	644 	[94 	LRRM
2433] 	where 	a 	similar 	remedy was 	granted 	as 	a 	result of 	the
employer 	unilaterally changing 	the 	status 	quo. 	Furthermore,
the 	record 	discloses no 	evidence 	that 	an order 	restoring 	the
status 	quo 	ante 	here would 	impose 	an 	unfair 	burden on 	the
District. 	NLRB v. 	Allied Products Corp., 	supra.
31

The District will also 	be ordered 	to 	rescind 	sections 	2, 	9
and 	10 	of 	the 	Emergency Resolution 	because 	they 	interfere 	with
rights 	guaranteed 	by 	the EERA.
It 	is 	also 	appropriate 	that 	the 	District 	be 	required 	to
post a 	notice 	incorporating 	the 	terms 	of 	the order. 	Posting
such 	a notice will 	provide 	employees 	with 	notice 	that 	the
District 	has 	acted 	in 	an 	unlawful manner 	and 	is 	being 	required
to cease 	and 	desist 	from 	this 	activity and 	to 	restore 	the
status quo.
The 	Board 	also 	finds 	it appropriate 	in 	this case 	to order
the 	Association 	to 	cease 	and 	desist 	from refusing 	to 	negotiate
in 	good 	faith 	and 	refusing 	to participate 	in good 	faith 	in 	the
statutory 	impasse 	procedures 	by engaging 	in a 	concurrent
strike. 	It 	is necessary that 	all 	unit employees 	be 	fully
informed 	of 	this 	Decision 	and 	thereby 	understand 	that 	the
strike 	which occurred 	here 	violated EERA. 	The 	Rio Hondo
Faculty Association, 	CTA/NEA, 	will 	be 	required 	to post 	the
attached Notice 	at 	all 	places 	throughout 	the 	District where
notices 	are 	customarily placed 	and, 	additionally, 	to distribute
copies 	of 	the Notice 	to all 	employees 	in the 	unit 	through 	the
District's 	internal 	distribution 	system 	if 	that 	is 	the
customary method 	of 	distributing 	Association 	literature.
It 	effectuates 	the purposes of 	the EERA that 	employees 	be
informed 	of 	the 	resolution 	of 	the 	controversy and 	of 	the
parties' 	readiness 	to comply with 	the ordered remedy. 	See
32

Placerville Union School District 	(9/18/78) 	PERB 	Decision
No. 	69; 	Pandol and Sons v. 	ALRB and UFW 	(1979) 	98 Cal.App.3d
580, 587; NLRB v. Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8
LRRM 415].
ORDER
Based 	upon 	the 	foregoing 	facts, 	conclusions 	of 	law and 	the
entire 	record 	in these 	cases, 	it 	is 	found 	that 	the Rio Hondo
Community College District 	has violated 	subsections 	3543.5(a),
(b) 	and 	(c) 	of 	the Educational Employment Relations Act. 	It 	is
hereby ORDERED 	that 	the District 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in good
faith 	with 	the 	exclusive 	representative 	by 	taking
unilateral 	action on matters 	within 	the 	scope of
representation, 	and 	specifically with 	respect 	to 	the
alteration of 	leave 	policies.
2. 	Denying 	the Rio Hondo Faculty Association 	its
right 	to 	represent 	unit 	members 	by 	unilaterally altering
leave 	policies 	without 	meeting 	and 	negotiating 	with 	the
Association.
3. 	Interfering 	with 	employees 	because of 	their
exercise 	of 	their 	right 	to 	select an exclusive
representative 	to meet 	and 	negotiate 	with 	the 	employer 	on
their 	behalf 	by 	unilaterally 	changing 	leave 	policies
without 	meeting 	and 	negotiating 	with 	the 	exclusive
representative.
33

4. 	Interfering 	with 	employees 	because 	of 	their
exercise 	of 	their 	right 	to participate 	in 	the 	activities 	of
an 	employee 	organization 	by 	threatening 	to 	suspend 	the
employee 	organization's 	rights 	guaranteed 	to 	them by 	the
EERA to dues 	deductions, 	reasonable 	access 	and 	to represent
its members 	in grievances.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE PURPOSES 	OF THE EERA:
1. 	Rescind Sections 2, 	9 and 10 of 	the Resolution of
the 	Board 	of 	Trustees 	Adopting Emergency 	Policy Rules 	and
Regulations 	adopted May 	21, 	1980, 	and 	reinstate 	the leave
policy 	in effect prior 	to 	that 	date 	unless 	a new policy has
been 	lawfully 	adopted 	through 	negotiations.
2. 	Make 	the 	affected 	employees 	whole 	by paying 	them
the 	leave 	they would 	have 	received 	had 	the 	unilateral
changes 	not 	been made, 	plus 	interest 	at 	the 	rate of
7 	percent 	per 	annum. 	Payment 	need 	not 	be made 	to 	those
employees 	who 	fail 	to provide 	verification 	requested
pursuant 	to 	the District's 	reasonable 	belief 	that 	such
employees 	had 	abused 	their 	leave 	benefits. 	The
verification 	required may 	not 	exceed 	the 	type 	requested 	of
employees 	in past 	circumstances 	whose 	abuse of 	leave was
suspected.
3. 	Within thirty 	(30) 	days 	from service of 	this
34

Decision, 	post at all school 	sites 	and all other 	work
locations 	where 	notices 	to employees 	customarily are
placed, 	copies of 	the Notice 	attached 	as Appendix 1. 	Such
posting 	shall 	be maintained 	for 	a period 	of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall 	be 	taken 	to
ensure 	that 	said Notices 	are 	not 	reduced 	in 	size, 	altered,
defaced 	or 	covered 	by 	any other 	material.
4. 	At 	the 	end 	of 	the 	posting period, 	notify the
Los Angeles 	regional 	director 	of 	the 	Public Employment
Relations Board, 	in writing, of 	the action taken to comply
with 	this Order. 	Continue 	to 	report 	in writing 	to 	the
regional 	director 	periodically 	thereafter 	as 	directed. 	All
reports 	to 	the 	regional 	director 	shall 	be 	served
concurrently on 	the 	charging 	party 	herein.
It 	is 	further 	found 	that 	the Rio Hondo Faculty Association,
CTA/NEA, 	has 	violated subsections 	3543.6(c) 	and 	(d) 	of 	the
Educational Employment Relations Act. 	It 	is 	hereby ORDERED
that 	the Association 	shall:
A. 	CEASE AND DESIST 	FROM:
Violating 	subsections 	3543.6(c) 	and 	(d) 	by refusing 	to
negotiate 	in 	good 	faith 	and 	refusing 	to participate 	in 	good
faith 	in 	the 	statutory 	impasse 	procedures 	by engaging 	in 	a
strike 	during 	the 	course 	of 	mediation.
35

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF 	THE 	ACT:
1. 	Within 	thirty 	(30) 	days of 	service of 	this Decision,
post 	at 	all 	school 	sites 	and 	all 	other 	work 	locations 	upon
those 	bulletin 	boards 	where 	the 	Rio Hondo Association's
notices 	are customarily placed, 	copies of 	the 	attached
Notice 	to Employees 	(Appendix 	2 ) . 	Such posting 	shall 	be
maintained 	for 	a period of 	thirty 	(30) 	consecutive workdays,.
In 	addition, 	the Association shall distribute copies of
the 	Notice 	to all 	unit 	employees 	through 	the 	District's
internal 	distribution system 	if 	that 	is 	the 	customary
method 	of 	distributing Association 	literature.
2. 	At 	the 	end of 	the 	posting 	period, 	notify 	the
Los 	Angeles 	regional 	director 	of 	the 	Public Employment
Relations Board, 	in writing, 	of 	the 	steps 	taken by the
Rio Hondo Faculty Association, 	CTA/NEA, 	to comply with 	this
Order. 	Continue 	to report 	in writing 	to 	the 	regional
director 	periodically 	thereafter 	as 	directed. 	All 	reports
shall 	be 	served 	concurrently on 	all 	parties.
Members 	Tovar 	and Jaeger 	joined 	in 	this 	Decision.
36

APPENDIX 	1
NOTICE 	TO 	CERTIFICATED 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-1158 	in
which all parties 	had 	the 	right to participate, 	it has 	been
found 	that 	the 	Rio 	Hondo Community College 	District 	has
violated 	subsection 	3543.5(c) 	of 	the Educational Employment
Relations Act 	(EERA) 	by 	refusing or 	failing 	to meet 	and
negotiate 	with 	the 	Rio Hondo 	Faculty Association 	by 	adopting 	an
emergency 	resolution 	in May 	1980 	which 	unilaterally changed
leave policies.
It 	has 	also 	been 	found 	that 	this 	same 	conduct 	violated
subsection 	3543.5(b) 	of 	the EERA since 	it 	interfered with 	the
right 	of 	the 	Rio Hondo Faculty Association 	to 	represent 	its
members.
It 	has 	also 	been 	found 	that 	this 	same 	conduct 	interfered
with 	negotiating 	unit members' right 	to 	be 	represented 	by 	their
exclusive 	representative, 	thus 	constituting a violation of
subsection 3543.5 (a) 	of the EERA.
It 	has 	also 	been 	found 	that 	the 	District 	interfered 	with
employees 	because 	of 	their 	exercise 	of 	their 	right 	to
participate 	in the 	activities of an employee organization, 	in
violation 	of 	subsection 	3543.5(a) 	of 	the EERA by 	adopting 	an
emergency 	resolution 	in May 	1980 	which 	threatened 	to 	suspend 	an
employee 	organization's 	rights 	guaranteed 	to 	them 	by 	the EERA
to dues 	deductions, 	reasonable access 	and 	to represent 	its
members 	in 	grievances 	if 	the organization 	advocated 	that 	its
members 	participate 	in a work 	stoppage.
As 	a result 	of 	this conduct, 	we 	have 	been ordered to post
this Notice, 	and we will 	abide 	by the 	following:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in good
faith 	with 	the 	exclusive 	representative 	by 	taking 	unilateral
action on matters within 	the 	scope of 	representation, 	and
specifically with 	respect 	to 	the 	alteration of 	leave 	policies.
2. 	Denying 	the 	Rio Hondo Faculty Association 	the 	right
to 	represent 	unit 	members 	by 	unilaterally 	altering 	leave
policies 	without 	meeting 	and 	negotiating 	with 	it.
1l

3. 	Interfering 	with 	employees 	because 	of 	their
exercise 	of 	their 	right 	to 	select 	an exclusive 	representative
to 	meet 	and 	negotiate on 	their 	behalf 	by 	unilaterally 	changing
matters 	within 	the 	scope 	of 	representation without meeting 	and
negotiating 	with 	the 	exclusive 	representative.
4. 	Interfering with 	employees 	because 	of 	their
exercise 	of 	their 	right 	to participate 	in 	the activities 	of 	an
employee 	organization 	by 	threatening 	to 	suspend 	an 	employee
organization's 	rights 	guaranteed 	to 	them 	by 	the EERA to 	dues
deductions, 	reasonable access 	and 	to represent 	its members 	in
grievances, 	if 	the organization advocated 	that 	its members
participate 	in a work stoppage.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE EERA:
1. 	Rescind Sections 	2, 	9 and 	10 of 	the Resolution of
the 	Board 	of 	Trustees 	Adopting 	Emergency 	Policy Rules 	and
Regulations 	adopted May 21, 	1980, 	and reinstate 	the leave
policy 	in effect 	prior 	to 	that 	date 	unless 	and 	until 	the
parties 	adopt a 	new policy, 	either 	by reaching 	a negotiated
agreement 	or 	exhausting 	the 	statutory 	impasse 	procedure.
2. 	Make 	the 	affected 	employees 	whole 	by paying 	them
the 	leave 	they would have 	received, 	plus 	interest 	at 	the 	rate
of 	7 	percent 	per 	annum, 	had 	the 	unilateral changes not 	been
made, 	except that payment need not 	be made 	to those 	employees
who 	fail 	to 	provide 	verification 	requested 	by 	the 	District
pursuant 	to 	its 	reasonable 	belief 	that 	such 	employees 	had
abused 	their 	leave 	benefits, 	provided 	that 	such 	verification
may 	not 	exceed 	that 	required 	in 	past 	circumstances 	where 	abuse
of 	leave was 	suspected.
DATE: 	RIO HONDO COMMUNITY COLLEGE 	DISTRICT
By Authorized 	Representative
THIS 	IS AN 	OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
N	2

APPENDIX 	2
NOTICE 	TO CERTIFICATED EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice Case Nos. 	LA-CE-1158 	and
LA-CO-141 	in which all parties 	had 	the 	right 	to participate, 	it
has 	been 	found 	that 	the 	Rio Hondo Faculty Association, 	CTA/NEA,
violated subsection 3543.6(c) 	and 	(d) 	by engaging 	in a 	strike
during mediation. 	As a result of 	this conduct, 	we have 	been
ordered 	to 	post 	this Notice 	and 	abide 	by 	the 	following. 	WE
WILL:
A. 	CEASE AND DESIST FROM:
Refusing 	to 	negotiate 	in 	good 	faith 	and 	refusing 	to
participate 	in good 	faith 	in 	the 	statutory 	impasse 	procedures
by engaging 	in a 	strike during 	the 	course 	of mediation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE EERA:
Post 	and 	distribute 	copies 	of 	this Notice 	to all 	unit
employees.
RIO 	HONDO 	FACULTY ASSOCIATION,
CTA/NEA
Dated: 	By
Authorized 	Agent
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS FROM THE 	DATE 	OF POSTING AND MUST NOT
BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.