South Bay Union School District * * * OVERRULED IN PART by Sweetwater Education Association (2014) PERB Order No. IR-58 (PERB 0815E)

OVERRULED IN PART by Sweetwater Education
Association (2014) PERB Order No. IR-58
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SOUTH BAY UNION SCHOOL DISTRICT,
Charging 	Party,
v.
SOUTHWEST TEACHERS ASSOCIATION,
Respondent.
)
)
) 	Case No. 	LA-CO-468
PERB Decision No. 	815
June 	13, 	1990
)
)
)
)
)
)
Appearance: 	Brown and Conradi by Clifford D. 	Weiler, 	Attorney,
for South Bay Union School 	District.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal by the 	South
Bay Union School District 	(District) 	of 	the Board agent's
dismissal 	of 	its 	amended unfair practice 	charge that alleges 	the
Southwest 	Teachers 	Association 	(Association) 	violated 	section
3543.6(c) 	and 	(d) 	of the Educational Employment Relations Act
(EERA).1 Specifically, 	the 	amended unfair practice 	charge
1EERA is 	codified at Government Code 	section 	3 540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.6 	states, 	in pertinent
part:
(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.
(d) 	Refuse to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
,.~
(

alleges 	that 	the Association refused 	or 	failed 	to 	meet 	and
negotiate 	in good 	faith with 	the 	District 	and refused 	to
participate 	in good 	faith 	in the 	impasse procedures 	by: 	(1)
encouraging, 	preparing 	for, 	and 	implementing preimpasse 	strike
activity, 	i.e., 	threatening to strike; 	(2) 	intentionally
misrepresenting the 	District's 	bargaining positions; 	and 	(3)
refusing to provide to 	the District 	a 	copy of 	an Association
document 	allegedly 	containing a portion of 	the 	District's 	strike
plan. 	We have reviewed the dismissal and find that, 	with the
exception of 	the 	intentional 	misrepresentation and 	refusal 	to
provide 	information allegations, 	the 	amended unfair practice
charge 	states 	a prima 	facie 	case 	that the Association violated
section 3543.6(d) 	of EERA.2
FACTS
In its unfair practice charge, 	the District alleges 	the
following 	facts. 	The Association 	is 	the exclusive representative
of 	a bargaining unit 	of 	approximately 	350 	certificated 	employees.
The 	District 	and 	the Association were parties 	to 	a 	collective
bargaining agreement which expired on June 	30, 	1987.
Representatives 	of 	the 	District 	and Association 	commenced
2 As 	the 	District's 	allegations 	involve events 	occurring
during 	the period 	the parties were 	engaged 	in 	the 	statutory
impasse procedures, 	the appropriate 	inquiry is whether the
Association violated 	section 	3543.6(d) 	by 	failing 	to participate
in good 	faith 	in the 	impasse procedures. 	(Moreno Valley Unified
School 	District v. 	Public 	Employment Relations 	Board 	(1983)
142 Cal.App.3d 	191, 	201-2.) 	Accordingly, 	the District's
allegation that 	the Association violated 	section 	3543.6(c) 	by 	its
refusal 	or 	failure 	to meet and negotiate 	in good 	faith must be
dismissed.
2
2
2

negotiations on a 	successor agreement on June 	23, 	1987. 	On
February 	26, 	1988,3 the District 	filed with PERB a 	"request 	for
impasse 	determination and 	appointment 	of 	mediator." 	PERB
declared 	an 	impasse 	and appointed a 	mediator. 	At 	the 	time 	of 	the
District's 	request 	for 	impasse determination, 	the parties 	had
approximately 	20 	issues 	remaining 	in dispute. 	The parties
participated 	in negotiations, 	both with 	and without 	a mediator,
on April 	4 and 20, 	September 	15 and 21, 	and October 	11 	and 	18.
Coinciding with the time the parties were 	in mediation, 	the
following 	events 	occurred which 	the 	District 	alleges 	were
sponsored 	by 	the Association.
On or about September 22, 	at an Association meeting, 	those
members present voted to take a 	strike vote on October 	6. 	The
strike vote was 	contingent upon the parties 	not obtaining a
settlement of 	their contract by September 	30. 	The District
maintains 	that the 	existence of this 	strike vote was 	of
"widespread knowledge" 	throughout the District due 	to 	the 	fact
that 	everything distributed 	to bargaining unit 	members 	by 	the
Association 	eventually 	came 	to 	the 	attention of 	District
management via 	its 	administrative 	interns.4
On or about 	September 26, 	the Association's 	bargaining team
delivered 	to the 	District's 	board of 	trustees 	a memorandum
containing 	the 	following 	statement:
3Unless 	otherwise indicated, 	all dates refer to 	1988.
4The 	District 	employs 	approximately 	12 	teachers 	in the
position of 	"administrative 	intern." 	These 	individuals, 	although
part of the unit, 	attend management meetings.
w
	3

The Association bargaining 	team 	is 	prepared
to meet with your team, 	with or without a
mediator, 	in an attempt to resolve the
impasse 	and avoid a 	strike.
On approximately September 	28 	the Association distributed 	a
circular 	entitled 	"Table Talk" 	to bargaining unit members. 	The
District 	maintains 	the Association's 	circular 	contained
misrepresentations 	regarding 	the 	District's 	bargaining positions
relating to hours, 	binding arbitration in the grievance
procedures, 	and employee discipline 	for 	just cause.
In the beginning of October, 	the District alleges 	that 	the
Association distributed 	a 	circular 	captioned 	"A Message 	to
Parents 	and Neighbors" 	in English and Spanish, 	which
misrepresented 	the 	District's 	bargaining positions 	regarding
class 	size, 	the right to be disciplined only for 	just cause, 	the
right to be 	informed as 	to the 	identity of 	an evaluator, 	and the
right 	to 	submit 	unsettled 	grievances 	to 	an 	impartial 	advisory
arbitrator. 	On this 	same date 	at 	a parent/teacher association
meeting, 	an Association representative 	circulated 	a document
represented to 	be 	the District's 	strike plan to 	the parents 	in
attendance. 	Although 	several 	management 	representatives
requested a 	copy of 	this Association document, 	the District
alleges 	it never received 	a 	copy.
On October 	4 	the Association 	circulated to 	bargaining 	unit
members 	its 	circular 	"Table Talk" 	which 	stated 	in part:
Substitute teachers, 	who will honor SWTA
picket lines 	in the event of a 	strike, 	have
been 	encouraged 	to 	apply 	for 	the 	advertised
substitute positions.
(Emphasis 	in original.)
44

On October 	7, 	by the Association's 	circulation of 	its publication
"Advocate" 	to bargaining unit members, 	the District alleges 	that
the Association announced 	that 	a 	strike 	headquarters 	was 	opened
at 	715 	9th Street. 	On October 	14 	the District alleges 	the
Association 	distributed 	a 	circular 	to 	bargaining 	unit 	members
which 	included 	the 	following 	statement:
The 	only way 	that 	this 	message 	could be
effective is 	if 	it was 	obvious 	to the 	school
board 	that 	teachers 	are 	truly prepared 	to
strike. 	At the 	same time 	it was 	extremely
important to be 	fully prepared 	if, 	on
October 	17th, 	teachers do vote to 	strike.
Those preparations 	have 	also been made.
Your 	assistance 	in maintaining 	the 	strike
threat 	is 	important to our ultimate 	success.
Watch 	for 	suggested 	activities 	on Monday.
On October 	17 	a packet was 	distributed by the Association to
its 	bargaining unit members. 	The packet 	included a delineation
of 	"last day of 	school" 	procedures. 	These procedures advised, 	in
part, 	for teachers to lock their desks, 	and to take lesson plans,
grade books, 	and keys unless 	specifically directed to turn them
into the office. 	In addition, 	the 	last-day procedures 	suggested
that 	students discuss the 	strike with their parents, 	and advise
their parents 	that 	they may choose 	to 	keep them at home. 	The
last-day procedures 	further 	included a 	suggested 	lesson plan, 	the
contents 	of which dealt 	exclusively with 	the history of 	the 	labor
movement and the South Bay 	labor dispute. 	Finally, 	the packet
instructed teachers 	to 	advise prospective 	substitutes 	that 	they
were 	participating 	in 	strike-breaking 	activities.
5

The 	original 	strike vote 	scheduled 	for October 	6 	was
postponed to October 	17. 	On this 	date a 	strike vote was 	held and
the teachers, 	by one vote, 	voted not to 	strike. 	The District
alleges 	that on October 	18, 	before 	the Association announced the
result of the 	strike vote, 	a tentative agreement was 	reached
between the parties.
The 	District 	alleges 	that 	the 	above-mentioned 	activities 	of
the Association were 	aimed 	at placing pressure 	upon 	the 	District
to make 	concessions within the 	collective bargaining process 	in
order to 	settle 	the 	contract 	and reach an agreement. 	The
District 	also 	alleges 	that 	the Association's 	activities 	resulted
in various 	disruptive 	effects 	on the 	educational 	community 	and
the 	educational process.
DISCUSSION
In determining whether an unfair practice 	charge 	alleges
sufficient 	facts 	to 	state a prima 	facie case, 	the 	charging
party's 	allegations 	are 	assumed to be true. 	(San 	Juan Unified
School District 	(1977) 	EERB Decision No. 	12.5) 	In this case, 	the
District 	alleges 	numerous 	instances 	where 	the Association
distributed memoranda, 	circulars 	and packets which 	contained
statements 	that: 	(1) 	directly or 	indirectly threatened a 	strike;
and 	(2) 	explained the Association's 	strike-preparation
activities, 	i.e., 	strike headquarters, 	last-day-of-school
procedures, 	and notice to 	substitutes. 	The District also alleges
5Prior to January 	1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.
66

that 	the 	Association 	intentionally 	misrepresented 	the 	District's
bargaining positions 	in its 	September 28 	issue of 	"Table Talk"
and October 	circular entitled 	"A Message 	to 	Parents 	and
Neighbors," 	and refused to provide 	necessary 	and 	relevant
information to 	the District.
In analyzing bad faith bargaining 	cases, 	there are two
applicable tests: 	(1) 	the per se test; 	and 	(2) 	the totality of
the 	circumstances 	test. 	As 	the above-alleged conduct does 	not
fall 	into one of the per 	se 	categories,6 the 	facts 	should be
analyzed 	in the 	context of 	the 	totality of 	the 	circumstances
test. 	Under the totality of the circumstances 	test, 	the Board
looks 	to 	the 	entire 	course 	of 	negotiations 	to determine 	the
respondent's 	subjective 	intent. 	(Oakland 	Unified 	School 	District
(1982) 	PERB Decision No. 	275; 	Pajaro Valley Unified School
District, 	supra, 	PERB Decision No. 	51.) 	Surface bargaining
occurs when a party goes 	through the motions 	of 	negotiations,
but, 	in fact, 	engages in other conduct to delay, 	prevent
agreement, 	frustrate or avoid the negotiation process. 	(Ibid.)
6The per 	se categories 	include the 	following: 	(1) 	an
outright 	refusal 	to 	bargain 	(Pajaro Valley 	Unified 	School
District 	(1978) 	PERB Decision No. 	51); 	(2) 	refusal to provide
information that 	is 	necessary and relevant 	to 	the 	employee
organization's 	duty 	to 	represent 	bargaining unit 	employees
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143);
(3) 	insistence to 	impasse on a nonmandatory 	subject of bargaining
(Lake Elsinore School District 	(1986) 	PERB Decision No. 	603;
Modesto City Schools 	(1983) 	PERB Decision No. 	291); 	(4) 	bypassing
the 	employee 	organization's 	negotiators 	(Muroc 	Unified 	School
District 	(1978) 	PERB Decision No. 	80); 	and 	(5) 	implementation of
a unilateral 	change 	in working 	conditions without 	notice 	and
opportunity 	to 	bargain 	(Pajaro Valley Unified 	School 	District,
supra. PERB Decision No. 	51).
V7

Here 	the 	District 	alleges 	that 	the Association's 	strike 	threat
and 	strike 	preparation 	activities 	frustrated 	the 	negotiation
process 	by 	coercing the 	District 	to make 	concessions.
Strike 	Preparation Activities
In the amended unfair practice 	charge, 	the District alleges
that 	the Association's 	conduct was 	"aimed 	at placing pressure
upon the 	employer to 	make 	concessions within the 	bargaining
process," 	and that 	the Association was 	"threatening 	and preparing
for 	illegal 	strike activity during the 	impasse process, 	with the
intent 	to 	coercively gain 	concessions 	within the 	bargaining
process." 	During this period, 	the parties 	continued to negotiate
and, 	in fact, 	reached a tentative agreement 	shortly after the
strike vote, 	but before the Association's 	announcement of 	the
strike vote result. 	The District alleges 	that this 	tentative
agreement was 	reached due to 	concessions 	made by 	the 	District 	as
a 	result 	of 	the Association's 	threatened 	strike 	and 	strike
preparation activities.
Under the totality of the 	circumstances 	test, 	the 	facts
alleged 	in the amended unfair practice 	charge, 	including the
strike threat 	and 	strike preparation activities, 	constitute
sufficient 	facts 	to 	state a prima 	facie violation of 	section
3543.6(d). 	While the District's 	facts regarding the coercive
effect upon the bargaining process 	are minimal, 	the allegations
are 	sufficient 	to warrant 	an evidentiary hearing. 	For 	example,
the 	fact 	that 	the parties 	reached 	a 	tentative 	agreement 	on
October 	18, 	after the strike vote on October 	17, 	might 	suggest,
8

upon a proper 	evidentiary 	showing, 	that 	the Association's 	conduct
was 	intended 	to 	and did place pressure 	on the 	District 	to 	reach
an agreement and, 	therefore, 	had a coercive impact on the
negotiations. 	Additionally, 	a hearing might 	shed 	some 	light 	on
the 	context 	surrounding distribution of 	the Association's
circular containing the words, 	"Your assistance 	in maintaining
the 	strike threat 	is 	important to our ultimate 	success."7
Assuming the 	amended unfair practice 	charge 	allegations 	to be
true, 	we 	find that the alleged 	statements 	state 	a prima 	facie
case 	that 	the Association refused 	to participate 	in good 	faith 	in
the 	impasse procedures 	in violation of 	section 	3543.6(d) 	of
EERA.8
Misrepresentations
The 	District 	alleges 	that 	the Association 	intentionally
misrepresented the 	District's 	bargaining positions. 	The 	District
alleges 	that these misrepresentations were 	"fraught with malice"
and 	intended 	to 	further the Association's 	goal 	of 	obtaining 	a
bargaining 	advantage. 	The 	Board agent 	concluded the 	statements
"are 	most 	likely protected under 	EERA," 	based 	on her 	finding 	that
7	7 We do 	not mean to 	suggest that 	factual 	findings 	on these
particular issues would be determinative of the result, 	but 	only
point out that 	these 	issues 	must be 	explored, 	together with 	other
issues 	raised by the 	factual 	allegations 	in the unfair practice
charge, 	in a hearing to determine whether the totality of 	the
circumstances 	test 	is 	satisfied.
Additionally, 	the Board's 	adoption of the 	standard 	set
forth in section 8(c) 	of 	the National Labor Relations Act 	(NLRA)
further 	supports 	the 	Board's 	holding 	that 	the 	alleged 	strike
threat 	may 	constitute evidence of 	an unfair practice. 	(See
discussion, 	infra.)
9

the Association's 	publications were 	related to matters 	of
legitimate 	concern to 	employees 	and were protected 	as 	not 	being
"opprobrious, 	flagrant, 	insulting, defamatory, 	insubordinate or
fraught with malice." 	While the Board 	finds 	that 	the Board agent
properly dismissed the misrepresentation allegations, 	the 	Board
does 	not 	adopt her analysis. 	Both the District and the Board
agent 	improperly relied 	on reprisal 	or discrimination 	cases 	in
which 	the 	issue was whether the 	employee 	engaged 	in protected
activity. 	(See 	Rancho 	Santiago Community College 	District 	(1986)
PERB Decision No. 	602; 	Mt. 	San Antonio Community College District
(1982) 	PERB Decision No. 	224.) 	Here, 	the issue is whether the
alleged misrepresentations 	violate 	section 	3543.6(d) 	of 	EERA.
In Rio 	Hondo Community College District 	(1980) 	PERB 	Decision
No. 	128, 	pages 	18-20, 	this Board looked to the NLRA for guidance
in 	formulating 	a 	test 	for determining when employer
communications will 	be 	considered violative 	of 	the provisions 	of
EERA. 	Specifically, 	the Board examined 	section 8(c) 	of the NLRA
which provides:
The expressing of any views, 	argument, 	or
opinion, 	or the dissemination thereof,
whether in written, printed, 	graphic, 	or
visual 	form, 	shall not constitute or be
evidence 	of 	an unfair 	labor practice under
any of the provisions of this Act, 	if 	such
expression contains 	no 	threat 	of 	reprisal 	or
force or promise of benefit.
10

While 	the 	Board 	noted that 	EERA 	contains 	no provision parallel 	to
section 8(c),9 the Board 	specifically recognized that 	"a public
school 	employer 	is 	entitled to 	express 	its 	views 	on employment
related matters 	over which 	it has 	legitimate 	concerns 	in order to
facilitate 	full 	and knowledgeable debate" 	and adopted a 	standard
derived 	from 	the 	NLRA:
The 	Board 	finds 	that 	an employer's 	speech
which 	contains 	a 	threat of 	reprisal 	or 	force
or promise of benefit will be perceived as 	a
means 	of violating the Act and will,
therefore 	lose 	its 	protection and 	constitute
strong evidence 	of 	conduct which 	is
prohibited by 	section 	3543.5 	of 	the 	EERA.
[Fn. omitted.]
(Id, at p. 	20.)
The National 	Labor Relations 	Board 	(NLRB) 	and the 	courts 	apply
section 8(c) 	of the NLRA to employee organizations, 	as well as
employers. 	(International 	Brotherhood of 	Electrical Workers 	v.
National Labor Relations Board 	(1951) 	341 U.S. 	694, 	704 	[28 LRRM
2115]; 	Boaz Spinning Company v. 	NLRB 	(6th Cir. 	1971) 	439 F.2d
876, 	878 	[76 LRRM 2956], 	citing The Bendix Corp. 	v. 	NLRB 	(6th
Cir. 	1968) 	400 F.2d 141, 	146 	[69 LRRM 2157]; 	see also Morris, 	The
9Section 	3571.3 	of 	the 	Higher 	Education Employer-Employee
Relations Act 	contains 	language virtually 	identical 	to 	that 	of
section 8(c) 	of the NLRA:
The expression of any views, 	arguments, 	or
opinions, 	or the dissemination thereof,
whether in written, 	printed, 	graphic, 	or
visual form, 	shall not constitute, 	or be
evidence of, 	an unfair labor practice under
any provision of 	this 	chapter, 	unless 	such
expression contains 	a threat of 	reprisal,
force, 	or promise of benefit; 	provided,
however, 	that the employer shall not express
a preference 	for one 	employee 	organization
over another 	employee 	organization.
11

- -
Developing Labor Law 	(2d Ed. 	1983) 	p. 	42.)1 0 Accordingly, 	the
Board holds 	that 	the 	standard 	established 	in Rio 	Hondo 	Community
College District, 	supra, 	PERB Decision No. 	128 is equally
applicable 	to 	employers 	and 	employee 	organizations.
In the present case, 	the alleged misrepresentations 	of
District 	bargaining positions 	fail 	to 	constitute 	either 	a 	threat
of reprisal or force or promise of benefit. 	Accordingly, 	the
misrepresentation allegations 	must 	be 	dismissed 	for 	failure 	to
state 	a prima 	facie violation of 	EERA.
Refusal 	to 	Provide 	Information
With regard 	to 	the 	alleged 	refusal 	to provide 	information,
we 	agree with 	the 	Board 	agent's 	conclusion that 	the 	District
failed to 	state why the 	requested 	information was 	necessary 	and
relevant to the bargaining process 	and, 	therefore, 	affirm the
Board agent's 	dismissal 	of this 	allegation. 	In her discussion,
the 	Board 	agent 	recognized 	that 	the 	Board has 	not 	yet 	addressed
the 	effect 	of 	an employee organization's 	refusal 	to provide
information to 	an employer. 	In reaching her conclusion that 	the
information requested was 	not 	relevant 	to 	the 	District's
negotiations, 	the 	Board agent 	relied upon Detroit Newspaper
Printing and Graphic Communications Union. 	Local 	13 	(1977) 	233
NLRB 994 	[97 LRRM 1047], 	affirmed 	(D.C. 	Cir. 	1979) 	598 F.2d 257
[101 LRRM 2036]. 	In Detroit Newspaper, 	supra. 	the NLRB held that
10While PERB is 	not bound by decisions 	of the NLRB, 	the
Board will 	take 	cognizance of 	them where 	appropriate. 	(Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89; 	Los Angeles
Unified 	School 	District 	(1976) 	EERB Decision No. 	5.)
12

the 	employee 	representative 	violated 	the 	NLRA by 	refusing 	to
provide 	requested 	information that was 	necessary 	and 	relevant 	to
the 	employer's 	structuring of 	economic 	proposals 	at 	the
bargaining table.
In cases 	where 	the 	employer has 	refused to provide
information to 	an employee organization, 	the Board has 	held 	the
exclusive representative 	is 	entitled to 	all 	information that 	is
"necessary 	and 	relevant" 	to 	the 	representative's 	statutory duty
to represent employees. 	Specifically, 	the Board has 	held that
information pertaining to 	mandatory 	subjects 	of 	bargaining 	is 	so
intrinsic 	to the 	core of 	employer-employee relations 	that 	it 	is
considered presumptively 	relevant, 	and 	that 	such 	information must
be 	disclosed unless 	the 	employer 	can establish that 	the
information 	is 	plainly 	irrelevant 	or 	can provide 	adequate 	reasons
why 	it 	cannot 	furnish the 	information. 	(Stockton Unified 	School
District, 	supra. 	EERB Decision No. 	143.)
In the amended unfair practice 	charge, 	the District alleges:
The document 	at 	issue was 	necessary and
relevant to the 	negotiation process 	in view
of 	respondent's 	conduct 	referenced 	throughout
this 	charge 	and 	especially 	since union
representative(s) 	were 	indicating to parents
that the document was 	a portion of the
District's 	strike plan.
The District's 	allegation 	fails 	to 	state why the 	information 	is
necessary 	and 	relevant 	to 	either 	the 	District's 	statutory duties
under Stockton Unified School 	District, 	supra, 	or the District's
structuring 	of 	economic 	proposals 	at 	the 	bargaining 	table 	under
Detroit Newspaper, 	supr- - 	- - 	af 	233 NLRB 994. 	Therefore, 	as the
13

District has 	failed to 	allege the 	relevance of 	the 	requested
information, 	the Board affirms 	the Board agent's 	dismissal 	of
this 	allegation.
ORDER
For the reasons 	stated above, 	the Board AFFIRMS 	the Board
agent's 	dismissal 	of 	the 	allegations 	that 	the 	Southwest 	Teachers
Association unlawfully 	misrepresented 	the 	South 	Bay 	Union 	School
District's 	bargaining positions, 	refused to provide 	the 	South 	Bay
Union 	School 	District with 	the 	necessary 	and relevant
information, 	and refused or 	failed to meet 	and negotiate 	in good
faith pursuant to 	section 	3543.6(c) 	of 	the Educational 	Employment
Relations Act. 	The Board hereby REVERSES 	the 	Board agent's
dismissal 	of 	the 	allegation that 	the 	Southwest 	Teachers
Association refused 	to participate 	in good 	faith 	in 	the 	impasse
procedures 	by encouraging, 	preparing for, 	and implementing
preimpasse 	strike 	activity, 	and REMANDS 	the 	Board agent's
dismissal of this 	allegation to the General Counsel. 	The Board
hereby ORDERS 	the General Counsel 	to 	issue 	a 	complaint 	alleging a
violation of 	section 3543.6(d) 	of 	the Educational 	Employment
Relations Act.
Member Shank 	joined 	in this 	Decision.
Member Craib's 	concurrence 	and dissent begins 	on page 	15.
14

Member Craib, 	concurring and dissenting: 	While 	I 	concur
that the 	South Bay Union School 	District 	(District) 	failed 	to
state 	a 	prima 	facie violation 	for bad 	faith bargaining based 	upon
the 	Southwest 	Teachers 	Association's 	(Association)
misrepresentations 	and refusal 	to provide 	the 	District with 	a
copy of 	an alleged District 	strike plan, 	I 	must dissent 	from my
colleagues' 	decision to 	issue a 	complaint against the Association
based 	solely on 	its 	alleged threat 	to 	strike.
In describing the appropriate test to apply, 	the majority
correctly cites 	Oakland Unified 	School 	District 	(1982) 	PERB
Decision No. 	275 	and Pajaro Valley Unified School 	District 	(1978)
PERB Decision No. 	51 	for the Public 	Employment Relations 	Board's
(Board) 	approach 	in applying 	the totality of the 	circumstances
test. 	(Majority opn. 	at p. 	7.) 	The majority then, 	without
citing 	any authority, 	appears 	to hold that 	surface bargaining 	can
be 	evidenced by 	engaging 	in conduct which 	is 	aimed 	at 	coercing
the other party to make concessions. 	(Majority opn. 	at pp. 	8-9)
While 	the 	Board has 	indeed 	found that 	surface 	bargaining 	occurs
when a party engages 	in conduct 	to delay or prevent agreement,
this 	is 	the 	first 	time the 	Board has 	held that 	conduct which has
the 	effect of 	coercing a party to make 	concessions 	to 	reach
agreement 	is 	indicative 	of 	surface bargaining. 	Conduct which 	is
aimed at 	seeking agreement, 	regardless 	of 	its 	coercive nature, 	is
quite different 	from 	surface bargaining. 	Surface bargaining, 	as
the phrase implies, 	is 	conduct aimed at not reaching agreement.
15

I 	find the 	majority's 	sub 	silentio 	change 	in the 	standard 	for
surface 	bargaining 	disturbing.
The 	illogic 	of 	the majority's 	application of 	surface
bargaining analysis aside, 	it is true that, 	in some
circumstances, 	a threat to 	strike prior to the exhaustion of
statutory 	impasse procedures 	could be 	evidence 	of 	bad 	faith.
However, 	this would be true only where the threat was 	used as 	a
method of delaying or avoiding agreement, 	or otherwise
interfering with 	the 	negotiations 	process. 	As 	the 	"totality of
the circumstances" 	test implies, 	the entire course of
negotiations 	must be 	examined to determine 	if 	a party has
negotiated with 	the 	requisite 	subjective 	intent 	of 	reaching 	an
agreement. 	(Pajaro Valley Unified School District, 	supra. 	at
p. 	5.)
In the 	case before the Board, 	the 	Association's 	alleged
conduct does 	not rise to the 	level 	of a 	cognizable threat. 	The
alleged 	facts 	indicate 	only that 	the Association 	engaged 	in
strike preparation activities. 	Notably, 	there are no allegations
that 	the Association 	ever directly 	told 	the 	District 	that 	unless
the District met the Association's demands, 	it would 	strike.
More 	importantly, 	there are no allegations 	that the Association's
strike preparations 	interfered with bargaining. 	There 	are 	no
allegations, 	for example, 	that the Association refused to come to
the table or refused to respond to proposals. 	Indeed, 	the
parties 	continued 	to 	bargain throughout 	the period 	of 	strike
preparations. 	The majority believes 	that
16

the 	fact that 	the parties 	reached a 	tentative
agreement . 	. 	. might suggest . 	. 	. that the
Association's 	conduct was 	intended to 	and did
place pressure on the District 	to reach 	an
agreement and, 	therefore, 	had a coercive
impact on the negotiations.
(Majority opn. 	at pp. 	8-9.) 	Under the circumstances presented by
the District's 	allegations, 	the opposite assumption is more
appropriate, 	i.e., 	the Association's 	strike preparation
activities 	had little or no 	impact on the parties' 	bargaining
process; 	hence, 	the parties were able to reach agreement.
In 	sum, 	the District has 	failed to allege 	facts which
reflect 	that 	the 	alleged 	strike 	threat 	had 	any 	adverse 	impact
upon negotiations. 	Without 	such allegations, 	no prima 	facie
violation is 	stated under a totality of 	the 	circumstances 	test.
The majority, 	instead, 	appears to believe that it is appropriate
to 	issue 	a 	complaint 	and give 	the 	District 	the 	opportunity to
prove 	the 	critical 	facts which 	it 	failed to 	allege 	in the 	first
place. 	On the 	contrary, 	the District had the opportunity to
amend 	its 	charge 	to 	state a prima 	facie 	violation, 	but did 	not
do 	so 	successfully. 	Therefore, 	I would affirm the 	Board agent
and dismiss 	this 	charge.
17