Compton Unified School District * * * OVERRULED IN PART by Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M (PERB I050E)

OVERRULED IN PART by Fresno County In-Home Supportive
Services Public Authority (2015) PERB Decision No. 2418-M
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COMPTON 	UNIFIED 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
COMPTON 	EDUCATION 	ASSOCIATION,
CTA/NEA,
Respondent.
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Case 	No. 	LA-C0-396
PERB 	Order 	No. 	IR-50
March 	17, 	1987
~~~~~~~~~~~~~>
Appearances: 	Jones.& Matson 	by Urrea 	C. 	Jones, 	Jr., 	for 	Compton
Unified 	School 	District; 	Rosalind 	D. 	Wolf, 	Attorney, 	California
Teachers 	Association, 	for 	Compton 	Education Association, 	CTA/NEA.
Before 	Hesse, 	Chairperson; 	Porter 	and 	Craib, 	Members.
DECISION AND ORDER
PORTER, 	Member: 	The 	Compton 	Unified 	School 	(District)
filed 	an 	unfair 	practice 	charge 	alleging 	that 	the 	Compton
Education 	Association, 	CTA/NEA 	(Association) 	violated 	the
Educational 	Employment 	Relations 	Act 1 (EERA 	or 	Ac~) 	section
lEERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein 	are 	to 	the 	Government 	Code.
Section 	3543.6 	states:
3543.6. 	UNLAWFUL 	PRACTICES: 	EMPLOYEE 	ORGANIZATION
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.

3543.6 	(c) 	and 	(d) 	when 	it 	commenced 	strikes 	against 	the
District 	while 	negotiations 	were 	still 	in 	progress 	llowing 	a
fact-finder's 	report. 	In 	addition 	to 	filing 	the 	unfair
practice 	charge, 	the 	District 	seeks 	injunctive 	relief 	pursuant
to 	the 	Public 	Employment 	Relations 	Board's 	(PERB 	or 	Board)
authority 	to 	seek 	such 	relief 	under 	EERA 	section 	3541.3(j). 2
As 	a 	defense, 	the 	Association 	asserts 	that: 	(1) 	it 	is 	striking
"pos 	impasse" 	and 	(2) 	it 	is 	striking 	in 	response 	to 	the
District's 	unfair 	practices.
(d) 	Refuse 	to 	participate 	in 	good 	faith 	in 	the
impasse 	procedure 	set 	forth 	in Article 	9 	(commencing
with 	Section 	3548).
The Association 	filed 	unfair 	practice 	charges 	against 	the
District 	on 	November 	12, 	1986, 	alleging 	that 	the 	District 	was
not 	bargaining 	in 	good 	faith 	by 	not 	providing 	information 	and
by making 	unilateral 	changes 	in 	its 	drug 	and 	alcohol 	abuse
policy 	and 	teacher 	eva 	ation 	procedures. 	The 	Association 	did
not 	file 	a 	petition with 	PERB 	seeking 	injunctive 	relief 	against
the 	District 	for 	this 	conduct.
2section 	3541.3 	states:
3541.3. 	POWERS AND 	DUTIES 	OF 	BOARD
. . . . . . 	.
(j) 	To 	bring 	an 	action 	in 	a 	court 	of 	competent
jurisdiction 	to 	enforce 	any 	of 	its 	orders, 	decisions
or 	rulings 	or 	to 	enforce 	the 	refusal 	to 	obey 	a
subpoena. 	Upon 	issuance 	of 	a 	complaint 	charging 	that
any 	person 	has 	engaged 	in 	or 	is 	engaging 	in 	an 	unfair
practice, 	the 	board 	may 	petition 	the 	court 	for
appropriate 	temporary 	relief 	or 	restraining 	order.
2

Following 	a 	number 	of 	work 	stoppages 	by 	the 	employees, 	the
District 	filed 	this 	unfair 	practice 	charge 	against 	the
Association 	on 	January 	28, 	1987.
On 	January 	30, 	1987, 	PERB's 	General 	Counsel 	issued 	unfair
practice 	complaints 	against 	the 	Association 	and 	the 	District,
respectively. 	On 	February 	12, 	1987, 	the 	Association 	engaged 	in
another 	work 	stoppage. 	On 	February 	17, 	1987, 	the 	District
filed 	its 	request 	with 	PERB 	that 	injunctive 	relief 	be 	sought
against 	the 	Association's 	work 	stoppages.
In 	support 	of 	its 	request 	for 	injunctive 	relief 	the
District 	alleges, 	through 	its 	pleadings 	and 	supporting
declarations, 	the 	following 	summarized 	factual 	scenario. 3
Following 	negotiations, 	impasse, 	mediation 	and
fact-finding, 	the 	three-member 	fact-finding 	panel 	issued 	its
recommended 	decision 	on 	October 	28, 	1986. 	From November 	5,
1986 	through 	February 	19, 	1987, 	the 	District 	and 	the
Association 	engaged 	in 	post 	fact-finding 	negotiations 	on 	24
occasions. 	They met 	for 	the 	last 	5 	of 	those 	24 	days 	with 	a
PERB 	administrative 	law 	judge 	(ALJ) 	acting 	as 	mediator. 	The
District 	alleges 	it 	increased 	its 	salary 	proposals 	throughout
these 	negotiating 	sessions, 	proffering 	various 	combinations 	of
3These 	allegations 	are 	summarized 	only 	to 	reflect
generally what 	was 	occurring 	with 	respect 	to 	the 	strikes; 	the
actual 	facts 	involved 	and 	the 	merits 	of 	the 	underlying 	charges
filed 	by 	the 	Association 	and 	the 	District 	remain 	to 	be
determined 	in 	a 	full 	evidentiary 	hearing 	on 	the 	merits 	and 	are
not 	resolved 	in 	this 	Decision.
3

percentages 	and 	contingencies.
During 	this 	same 	period, 	the 	Association 	struck 	on 	the
following 	days, 	preceeded 	by 	the 	indicated 	notice:
Tuesday, 	November 	11, 	1986 	(notice 	given 	Friday,
November 	7);
Friday, 	November 	14 	(notice 	given 	Thursday,
November 	13);
Monday, 	Tuesday, 	November 	17 	and 	18 	(notice 	given
Friday, 	November 	14 	for 	the 	Monday 	strike; 	no
notice 	given 	for 	the 	Tuesday 	strike);
Wednesday, 	December 	3 	(notice 	given 	Tuesday,
December 	2);
Wednesday, 	December 	10 	(notice 	given 	Tuesday,
December 	9);
Monday, 	January 	12, 	1987 	(notice 	given Wednesday,
January 	7 	that 	if 	no 	agreement 	reached 	by
January 	12, 	the 	Association would 	strike. 	Notice
given 	on 	Friday, 	January 	9 	that 	they would 	indeed
strike 	on 	the 	12th);
Tuesday 	through 	Friday, 	January 	13, 	14, 	15, 	16 	(notice
given 	at 	2:00 	p.m. 	on 	the 	day 	preceeding 	each
strike 	day 	that 	the 	Association would 	be 	out 	on
the 	following 	day);
Tuesday, 	January 	20 	(notice 	given 	on 	Friday,
January 	16);
Wednesday, 	January 	28 	(notice 	given 	on 	Friday,
January 	23);
Thursday, 	February 	12 	(notice 	given 	at 	5:05 	p.m. 	on
Tuesday, 	February 	l~).
The 	District 	asserts 	that 	striking 	teachers 	disrupted 	the
school 	operations 	when 	approximately 	150 	teachers 	occupied 	the
main 	administration 	building 	on 	January 	13, 	1987, 	from
10:00 	a.m. 	to 	5:45 	p.m., 	and 	then 	occupied 	the 	main 	conference
room, 	refusing 	to 	vacate 	to 	allow 	the 	school 	board 	to 	conduct
its 	closed 	session meeting 	until 	the 	Compton 	police were 	forced
to 	arrest 	and 	remove 	several 	teachers. 	Due 	to 	the 	extreme
congestion 	in 	the 	halls 	and 	noise 	made 	by 	the 	striking 	teachers
who 	occupied 	part 	of 	the 	building, 	much 	of 	the 	normal 	work 	of
4

the 	administrative 	staff 	could 	not 	be 	performed. 	Eighty
percent 	of 	the 	District's 	security 	force 	personnel 	were
reassigned 	from 	their 	regular 	patrol 	and 	security 	duties. 	Two
security 	guards 	were 	injured 	in 	the 	fray 	while 	attempting 	to
secure 	the 	building. 	One 	guard 	lost 	three 	days 	of 	work 	and
both 	had 	to 	undergo 	physical 	therapy 	as 	a 	result 	of 	injuries.
The 	average 	number 	of 	teachers 	participating 	each 	day 	of
the 	strike 	was 	898 	out 	of 	a 	bargaining 	unit 	of 	1266. 	The
lowest 	number 	out 	on 	strike was 	817, 	while 	the 	highest 	number
was 	968. 	In 	addition, 	an 	average 	of 	125 	teachers 	called 	in 	ill
on 	each 	day 	of 	the 	strike. 	The 	maximum number 	of 	substitute
teachers 	that 	the 	District 	was 	able 	to 	employ 	on 	a 	strike 	day
was 	43. 	This 	left 	District 	administrators 	covering 	classes 	of
the 	remaining 	850 	or 	so 	teachers.
Between 	the 	first 	day 	of 	school 	on 	September 	9, 	1986 	and
November 	11, 	1986, 	the 	District 	experienced 	one 	building 	fire.
However, 	from 	November 	11 	to 	January 	13, 	there 	were 	four
incidences 	of 	fires 	of 	"suspicious 	origin" 	at 	District 	schools,
one 	of 	which 	caused 	an 	estimated 	$20,000 	damage.
With 	respect 	to 	the 	effect 	on 	the 	students, 	the 	District
asserts 	that 	Association 	members 	encouraged 	school 	age 	children
to 	walk 	picket 	lines 	during 	the 	hours 	that 	schools 	were 	in
session, 	and 	did 	not 	remove 	pupils 	who 	were 	walking 	picket
lines 	during 	school 	hours; 	and 	further 	alleges 	that 	teachers
sent 	students 	home 	from 	school 	after 	they 	arrived 	to 	attend
school 	on 	strike 	days.
5

District 	attendance 	dropped 	off 	dramatically 	during 	the
strike. 	A majority 	of 	district 	students 	did 	not 	attend 	school
on 	strike 	days, 	and 	a 	significant 	number 	continued 	their
absenteeism 	on 	days 	following 	each 	day 	of 	strike. 	On 	normal
school 	days, 	there 	is 	an 	average 	absentee 	rate 	of 	9.75 	percent
of 	the 	student 	enrollment 	of 	28,255. 	On 	strike 	days, 	however,
the 	rate 	rose 	an 	additional 	average 	of 	61.25 	percent
absenteeism. 	On 	three 	of 	the 	strike 	days, 	the 	absentee 	rate
was 	71 	percent. 	Even 	on 	nonstrike 	days 	during 	this 	period
between 	November 	11, 	1986 	and 	January 	20, 	1987, 	29.25 	percent
of 	the 	students 	were 	absent 	in 	addition 	to 	the 	normal 	9.75
percent. 	During 	this 	two 	month 	period 	then, 	nearly 	40 	percent
of 	the 	students 	of 	the 	District 	received 	no 	instruction
whatsoever. 	Because 	of 	this 	pattern 	of 	poor 	attendance, 	38
days 	of 	instruction 	have 	been 	lost 	or 	significantly 	undermined
for 	a 	large 	percentage 	of 	students. 	This 	represents 	21 	percent
of 	the 	180-day 	school 	year. 	In 	addition, 	similar 	absentee
rates 	occurred 	on 	January 	28, 	1987 	(19,031 	students
absent--67.5 	percent), 	and 	on 	February 	12 	(20,019 	students
absent--nearly 	71 	percent).
The 	District 	further 	alleges 	that 	District 	students, 	on 	the
average, 	score 	well 	below 	county, 	state, 	and 	national 	norms,
and 	they 	need 	every 	instructional 	day 	possible. 	As 	a 	result 	of
the 	low 	academic 	achievement 	among 	students 	in 	the 	District,
the 	District 	had 	scheduled 	a 	comprehensive 	program 	of 	inservice
training 	for 	its 	teachers 	and 	staff, 	which 	had 	to 	be 	canceled,
6

since 	the 	training 	sessions 	were 	either 	scheduled 	for 	days 	on
which 	the 	teachers 	were 	on 	strike 	or 	for 	days 	on which 	the
District 	was 	unsure 	of 	whether 	the 	teachers 	would 	be 	on 	strike,
or 	due 	to 	the 	additional 	work 	requirements 	of 	administrators
who 	were 	forced 	to 	cover 	classrooms 	or 	handle 	strike 	related
matters 	rather 	than 	attend 	to 	their 	normal 	duties. 	Also
canceled 	during 	this 	period were 	supervision 	of 	instruction
activities, 	curriculum monitoring 	and 	development 	act 	ties,
and 	educational, 	physical 	and 	psychological 	testing 	activities
and 	competitions. 	Supplementary 	sessions 	for 	high 	school
seniors 	to 	prepare 	them 	for 	the 	California 	Assessment 	Program
test 	administered 	in 	December 	were 	canceled, 	as 	were 	additional
supplementary 	instructional 	activities 	scheduled 	for
approximately 	75 	percent 	of 	the 	District's 	students, 	who 	are
designated 	as 	educationally 	disadvantaged 	due 	to 	low 	test
scores. 	These 	latter 	supplementary 	instructional 	activities
are 	funded 	by 	federal 	and 	state 	programs, 	set 	up 	to 	provide
extra 	reading 	and 	math 	assistance 	through 	special 	labs 	and
tutoring 	and 	assistance 	from 	specialized 	instructional
personnel, 	many 	of 	whom were 	not 	available 	due 	to 	the 	strike.
As 	a 	result, 	this 	supplementary 	help 	r 	low-achieving 	students
was 	unavailable 	for 	these 	students.
For 	those 	students 	who 	did 	attend 	school 	on 	strike 	days,
instructional 	time 	was 	severely 	curtailed 	because 	of 	lack 	of
substitute 	teachers, 	delays 	in 	the 	beginning 	of 	instruction
which 	occurs 	as 	a 	result 	of 	the 	time 	required 	to 	organize 	and
7

consolidate 	class 	groups 	and 	because 	of 	lack of 	teaching
personnel.
According 	to 	the 	documents 	filed 	by 	the 	District:
The 	curtailment 	or 	cancellation 	of 	instruction
time 	and 	activities, 	teacher 	inservice 	training,
enrichment 	activities, 	monitoring 	and 	planning
activities, 	and 	support 	services 	have
significantly 	and 	irreparably 	harmed 	the
quantity 	and 	quality 	of 	knowledge 	and 	learning
that 	District 	pupils 	have 	experienced 	and
acquired 	in 	the 	current 	school 	year. 	As 	a
result 	of 	the 	strikes, 	all 	students 	have
experienced 	a 	significant 	diminution 	in
instruction 	or 	received 	no 	instruction 	at 	all,
and 	a 	severe 	dislocation 	in 	the 	planned 	sequence
of 	instruction, 	in 	the 	re-teaching 	and
enrichment 	required 	for 	the 	mastery 	of 	basic
skills, 	in 	the 	acquisition 	of 	language
proficiency, 	and 	in 	the 	acquisition 	of 	knowledge
of 	course 	content, 	which 	have 	already 	resulted
in 	irreparable 	harm 	to 	the 	progress 	of 	the
pupils' 	instruction 	and 	learning.
The 	Association, 	in 	its 	opposition 	to 	the 	District's
request 	for 	injunctive 	relief, 	does 	not 	deny 	that 	the 	work
stoppages 	were 	disruptive 	to 	the 	educational 	process 	within 	the
District. 	Instead, 	it 	argues 	that 	all 	strikes, 	almost 	by
definition, 	are 	disruptive 	in 	order 	to 	be 	effective.
Questions 	Presented
This 	matter 	presents 	three 	issues:
1. 	Does 	EERA 	grant 	to 	public 	school 	employees 	the 	right 	to
engage 	in work 	stoppages 	such 	as 	"unfair 	practice 	strikes" 	or
"post-impasse 	economic 	strikes'' 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or 	protection?
8

2. 	Do 	"unfair 	practice 	strikes" 	or 	"post-impasse 	economic
strikes" 	constitute 	unfair 	practices 	and/or 	violations 	under
EERA?
3. 	If 	work 	stoppages 	constitute 	unfair 	practices 	and/or
violations 	under 	EERA, 	is 	there 	"just 	and 	proper" 	cause 	to 	seek
their 	enjoinment 	in 	this 	case?
For 	the 	reasons 	which 	follow, 	this 	opinion 	concludes 	that
EERA 	does 	not 	grant 	to 	public 	school 	employees 	the 	right 	to
strike 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other 	mutual
aid 	or 	protection, 	that 	such work 	stoppages 	constitute 	unfair
practices 	and 	violations 	under 	EERA, 	and 	that 	there 	is 	"just
and 	proper" 	cause 	to 	seek 	their 	enjoinment 	in 	this 	case.
Discussion
I. 	INTRODUCTION 	TO ANALYSIS
Present 	at 	the 	threshold 	step 	of 	construing 	any 	legislative
enactment 	are 	certain 	basic 	assumptions. 	First, 	in 	enacting 	a
statute 	the 	Legislature 	knew 	and 	was 	familiar 	with: 	{a) 	the
California 	Constitution; 	(b) 	existing 	and 	related 	statutes, 	and
the 	acts 	of 	previous 	legislatures; 	(c) 	judicial 	decisions 	which
have 	construed 	the 	words, 	phrases 	and 	provisions 	of 	the
California 	Constitution 	and 	the 	statutes; 	and 	(d) 	the 	common
law. 	Second, 	the 	Legislature 	enacted 	the 	statute 	in 	light 	of
such 	knowledge. 	(Estate 	of 	McDill 	(1975) 	14 	Cal.3d 	831,
837-839 	and 	cases 	cited 	therein; 	Bailey 	v. 	Superior 	Court
9

(1977) 	19 	Cal.3d 	970, 	977-978, 	fn. 	10; 	Fuentes 	v. 	Workers'
Compensation 	Appeals 	Board 	(1976) 	16 	Cal.3d 	1, 	7; 	Keeler 	v.
Superior 	Court 	(1970) 	2 	Cal.3d 	619, 	625; 	Los 	Angeles
Metropolitan 	Transit 	Authority 	v. 	Brotherhood 	of 	Railroad
Trainmen 	(1960) 	54 	Cal.2d 	684, 	688-689; 	Buckley v. 	Chadwick
(1955) 	45 	Cal.2d 	183, 	200 	and 	cases 	cited 	therein; 	Sutter
Hospital 	v. 	City 	of 	Sacramento 	(1952) 	39 	Cal.2d 	33, 	38;
Rosenthal 	v. 	Cory 	(1977) 	69 	Cal.App.3d 	950, 	953; 	Favalora 	v.
County 	of 	Humboldt 	(1976) 	55 	Cal.App.3d 	969, 	973; 	American
Friends 	Service 	Committee 	v. 	Procunier 	(1973) 	33 	Cal.App.3d
252, 	260, 	hg. 	den.; 	People 	v. 	Welch 	(1971) 	20 	Cal.App.3d 	997,
1002; 	and 	see 	Civ. 	Code, 	sec. 	13; 	Code 	Civ. 	Proc., 	sec. 	16.)
These 	assumptions 	with 	respect 	to 	the 	Legislature's
knowledge 	of 	relevant 	constitutional, 	statutory 	and 	decisional
law 	are 	inextricably 	tied 	to 	the 	application 	of 	other
fundamental 	rules 	of 	statutory 	construction. 	Namely, 	the
intent 	of 	the 	Legislature 	should 	be 	ascertained 	so 	as 	to
effectuate 	the 	purposes 	of 	the 	law. 	(Tripp 	v. 	Swoap, 	Director
of 	Department 	of 	Social 	Welfare 	(1976) 	17 	Cal.3d 	671, 	679;
Moyer 	v. 	Workmen's 	Compensation 	Appeals 	Board 	(1973) 	10 	Cal.3d
222, 	230; 	West 	Pico 	Furniture 	Co. 	v. 	Pacific 	Finance 	Loans
(1970) 	2 	Cal.3d 	594, 	607; 	Select 	Base 	Materials 	v. 	Board 	of
Equalization 	(1959) 	51 	Cal.2d 	640, 	645; 	Code 	Civ. 	Proc., 	sec.
1859.) 	And 	in 	determining 	such 	intent, 	the 	starting 	point 	is
the 	language 	used 	by 	the 	Legislature 	in 	the 	statute.
(Leroy 	T. 	v. 	Workmen's 	Compensation Appeals 	Board 	(1974)
10

12 	Cal.3d 	434, 	438; 	Moyer 	v. 	Workmen's 	Compensation Appeals
Board, 	supra, 	10 	Cal.3d 	222, 	230; 	Consumer 	Product 	Safety
Commission 	v. 	GTE 	Sylvania 	(1980) 	447 	U.S. 	102, 	108.)
Moreover, 	the 	provisions 	of 	a 	statute 	must 	be 	construed
together, 	significance 	being 	given 	to 	every word, 	phrase,
sentence 	and 	part 	of 	an 	act 	in 	pursuance 	of 	the 	legislative
intent 	and 	purpose. 	(Turner 	v. 	Board 	of 	Trustees, 	Calexico
Unified 	School 	District 	(1976) 	16 	Cal.3d 	818, 	826; 	Moyer 	v.
Workmen's 	Compensation Appeals 	Board, 	supra, 	10 	Cal.3d 	222,
230.)
Thus, 	before 	attempting 	to 	analyze 	and 	apply 	the 	relevant
statutes, 	we 	must 	first 	examine 	what 	the 	existing
constitutional, 	statutory, 	and 	decisional 	law was 	with 	respect
to 	the 	public 	school 	system 	and 	to 	the 	rights 	of 	public
employees--more 	specifically, 	public 	school 	employees--to
engage 	in 	strikes 	at 	the 	time 	the 	Legislature 	enacted 	the
Educational 	Employment 	Relations 	Act 	in 	1975.
The 	Public 	School 	Education 	System
In 	analyzing 	any 	legislative 	enactment 	affecting 	the
operation 	of 	our 	public 	schools, 	one 	must 	recognize 	and 	be 	ever
mindful 	of 	the 	predominant 	position 	of 	the 	public 	school 	system
within 	California's 	constitutional 	and 	statutory 	scheme, 	as
well 	as 	its 	premier 	role 	in 	the 	public 	policy 	of 	this 	State.
(Cal. 	Const., 	art. 	IX; 	Serrano 	v. 	Priest 	(1971) 	5 	Cal.3d 	584,
604-610, 	619, 	appeal 	after 	remand 	18 	Cal.3d 	728 	cert. 	den.
11

432 	U.S. 	907; 	Hartzell 	v. 	Connell 	(1984) 	35 	Cal.3d 	899,
906-909; 	Piper 	v. 	Big 	Pine 	School 	District 	(1924) 	193 	Cal. 	664,
669; 	Hall 	v. 	City 	of 	Taft 	(1956) 	47 	Cal.2d 	177, 	179-181;
Turner 	v. 	Board 	of 	Trustees, 	Calexico 	Unified 	School 	District,
supra, 	16 	Cal.3d 	818, 	825; 	Myers 	v. 	Arcata 	Union 	High 	School
District 	(1969) 	269 	Cal.App.2d 	549, 	556, 	hg. 	den.; 	Akin 	v.
Board 	of 	Education 	of 	Riverside 	Unified 	School 	District 	(1968)
262 	Cal.App.2d 	161, 	167, 	cert. 	den. 	393 	U.S. 	1041; 	In 	re 	Shinn
(1961) 	195 	Cal.App.2d 	683, 	686-687; 	People 	v. 	Oken 	(1958)
159 	Cal.App.2d 	456, 	461, 	hg. 	den.; 	Gonzales 	v. 	State 	of
California 	(1972) 	29 	Cal.App.3d 	585, 	590.)
The 	education 	of 	the 	children 	of 	this 	State 	is 	an
obligation 	which 	the 	State 	took 	over 	to 	itself 	by 	adoption 	of
the 	California 	Constitution. 	(Piper 	v. 	Big 	Pine 	School
District, 	supra, 	193 	Cal. 	664, 	669.) 	The 	California
Legislature 	has 	the 	constitutional 	duty 	to 	provide 	for 	the
education 	of 	California's 	children 	and 	has 	the 	constitutional
duty 	and 	power 	in 	connection 	therewith 	to 	maintain 	and 	operate
a 	system 	of 	free 	public 	education 	in 	this 	State. 	(Cal. 	Const.,
art. 	IX; 	Whitmore 	v. 	Brown 	(1929) 	207 	Cal. 	473; 	Myers 	v. 	Arcata
Union 	High 	School 	District, 	supra, 	269 	Cal.App.2d 	549, 	556;
Akin 	v. 	Board 	of 	Education 	of 	Riverside 	Unified 	School
District, 	supra, 	262 	Cal.App.2d 	161, 	167.) 	Thus, 	as 	was 	stated
in 	Hall 	v. 	City 	of 	Taft, 	supra, 	47 	Cal.2d 	177, 	179:
The 	public 	schools 	of 	this 	state 	are 	a
matter 	of 	statewide 	rather 	than 	local 	or
municipal 	concern; 	their 	establishment,
12

regulation 	and 	operation 	are 	covered 	by 	the
Constitution 	and 	the 	state 	Legislature 	is
given 	comprehensive 	powers 	in 	relation
thereto.
This 	constitutional 	duty 	to 	maintain 	and 	operate 	a 	public
school 	system 	is 	discharged 	through 	the 	public 	school
districts. 	(Gonzales 	v. 	State 	of 	California, 	supra,
29 	Cal.App.3d 	585, 	590.)
The 	unique 	and 	predominant 	status 	of 	the 	public 	school
system 	in 	California 	public 	policy 	and 	within 	the 	public 	sector
is 	expressively 	set 	forth 	by 	the 	Supreme 	Court 	in 	the 	seminal
decision 	of 	v. 	Priest 	(1971) 	5 	Cal.3d 	584, 	appeal 	after
remand 	18 	Cal.3d 	728 	(1976) 	cert. 	den. 	432 	U.S. 	907
(Serrano 	I). 	In 	Serrano 	I, 	the 	Supreme 	Court 	not 	only
recognized 	public 	school 	education 	as 	a 	fundamental 	interest 	of
individuals 	and 	society 	but 	also 	that 	the 	delivery 	of 	public
school 	education 	services 	is 	perhaps 	the 	most 	important
function 	of 	state 	and 	local 	government, 	even 	exceeding 	public
safety 	services 	in 	its 	impact 	on 	the 	welfare 	of 	the 	people 	of
California. 	In 	the 	Serrano 	I 	decision, 	after 	first 	concluding
that 	the 	property-based 	school 	financing 	system discriminated
on 	the 	basis 	of 	the 	wealth 	of 	a 	district 	and 	its 	residents, 	the
Supreme 	Court 	declared 	in 	pertinent 	part:
B
Education 	as 	a 	Fundamental 	Interest
But 	plaintiffs' 	equal 	protection 	attack 	on
the 	fiscal 	system 	has 	an 	additional
dimension. 	They 	assert 	that 	the 	system not
only 	draws 	lines 	on 	the 	basis 	of 	wealth 	but
that 	it 	"touches 	upon," 	indeed 	has 	a 	direct
13

and 	significant 	impact 	upon, 	a 	"fundamental
interest," 	namely 	education. 	It 	is 	urged
that 	these 	two 	grounds, 	particularly 	in
combination, 	establish 	a 	demonstrable 	denial
of 	equal 	protection 	of 	the 	laws. 	To 	this
phase 	of 	the 	argument 	we 	now 	turn 	our
attention.
Until 	the 	present 	time 	wealth
classifications 	have 	been 	invalidated 	only
in 	conjunction with 	a 	limited 	number 	of
fundamental 	interests--rights 	of 	defendants
in 	criminal 	cases 	[citations] 	and 	voting
rights 	[citations]. 	Plaintiffs'
contention--that 	education 	is 	a .fundamental
interest 	which may 	not 	be 	conditioned 	on
wealth--is 	not 	supported 	by 	any 	direct
authority.
We, 	therefore, 	begin 	by 	examining 	the
indispensable 	role 	which 	education 	plays 	in
the 	modern 	industrial 	state. 	This 	role, 	we
believe, 	has 	two 	significant 	aspects:
first, 	education 	is 	a 	major 	determinant 	of
an 	individual's 	chances 	for 	economic 	and
social 	success 	in 	our 	competitive 	society;
second, 	education 	is 	a 	unique 	influence 	on 	a
child's 	development 	as 	a 	citizen 	and 	his
participation 	in 	political 	and 	community
life. 	"(T)he 	pivotal 	position 	of 	education
to 	success 	in American 	society 	and 	its
essential 	role 	in 	opening 	up 	to 	the
individual 	the 	central 	experiences 	of 	our
culture 	lend 	it 	an 	importance 	that 	is
undeniable." 	(Note, 	Development 	in 	the
Law--Equal 	Protection 	(1969) 	82 	Harv.L.Rev.
1065, 	1129.) 	Thus, 	education 	is 	the
lifeline 	of 	both 	the 	individual 	and 	society.
The 	fundamental 	importance 	of 	education 	has
been 	recognized 	in 	other 	contexts 	by 	the
United 	States 	Supreme 	Court 	and 	by 	this
court. 	These 	decisions--while 	not 	legally
controlling 	on 	the 	exact 	issue 	before
us--are 	persuasive 	in 	their 	accurate 	factual
description 	of 	the 	significance 	of 	learning.
The 	classic 	expression 	of 	this 	position 	came
in 	Brown 	v. 	Board 	of 	Education 	(1954)
347 	U.S. 	483, 	which 	invalidated 	de 	jure
segregation 	by 	race 	in 	public 	schools. 	The
14

high 	court 	declared: 	"Todav. 	education 	is
perhaps 	the 	most 	important 	function 	of 	state
and 	local 	governments. 	Compulsory 	school
attendance 	laws 	and 	the 	great 	expenditures
for 	education 	both 	demonstate 	our
recognition 	of 	the 	importance 	of 	education
to 	our 	democratic 	society. 	It 	is 	required
in 	the 	performance 	of 	our 	most 	basic 	public
responsibilities, 	even 	service 	in 	the 	armed
forces. 	It 	is 	the 	very 	foundation 	of 	good
citizenship. 	Today 	it 	is 	a 	principal
instrument 	in 	awakening 	the 	child 	to
cultural 	values, 	in 	preparing 	him 	for 	later
professional 	training, 	and 	in 	helping 	him 	to
adjust 	normally 	to 	his 	environment. 	In
these 	days, 	it 	is 	doubtful 	that 	any 	child
may 	reasonably 	be 	expected 	to 	succeed 	in
life 	if 	he 	is 	denied 	the 	opportunity 	of 	an
education. 	" 	[Citation.]
The 	twin 	themes 	of 	the 	importance 	of
education 	to 	the 	individual 	and 	to 	society
have 	recurred 	in 	numerous 	decisions 	of 	this
court.
When 	children 	living 	in 	remote 	areas 	brought
an 	action 	to 	compel 	local 	school 	authorities
to 	furnish 	them 	bus 	transportation 	to 	class,
we 	stated: 	"We 	indulge 	in 	no 	hyperbole 	to
assert 	that 	society 	has 	a 	compelling
interest 	in 	affording 	children 	an
opportunity 	to 	attend 	school. 	This 	was
evidenced 	more 	than 	three 	centuries 	ago,
when Massachusetts 	provided 	the 	first 	public
school 	system 	in 	1647. 	[Citation.] 	And
today 	an 	education 	has 	become 	the 	sine 	gua
non 	of 	useful 	existence 	. 	In 	light 	of
the 	public 	interest 	in 	conserving 	the
resource 	of 	young 	minds, 	we 	must
unsympathetically 	examine 	any 	action 	of 	a
public 	body which 	has 	the 	effect 	of
depriving 	children 	of 	the 	opportunity 	to
obtain 	an 	education." 	(Fn. 	omitted.)
(Manjares 	v. 	Newton 	(1966) 	64 	Cal.2d 	365,
375-376.)
And 	long 	before 	these 	last 	mentioned 	cases,
in 	Piper 	v. 	Big 	Pine 	School 	Dist., 	supra,
193 	Cal. 	664, 	where 	an 	Indian 	girl 	sought 	to
attend 	state 	public 	schools, 	we 	declared:
"(T)h'e 	common 	schools 	are 	doorways 	opening
15

into 	chambers 	of 	science, 	art, 	and 	the
learned 	professions, 	as 	well 	as 	into 	fields
of 	industrial 	and 	commercial 	activities.
Opportunities 	for 	securing 	employment 	are
often 	more 	or 	less 	dependent 	upon 	the 	rating
which 	a 	youth, 	as 	a 	pupil 	of 	our 	public
institutions, 	has 	received 	in 	his 	school
work. 	These 	are 	rights 	and 	privileges 	that
cannot 	be 	denied." 	(Id. 	at 	p. 	673).
It 	is 	illuminating 	to 	compare 	in 	importance
the 	right 	to 	an 	education with 	the 	rights 	of
defendants 	in 	criminal 	cases 	and 	the 	right
to 	vote--two 	"fundamental 	interests" 	which
the 	Supreme 	Court 	has 	already 	protected
against 	discrimination 	based 	on 	wealth.
Although 	an 	individual's 	interest 	in 	his
freedom 	is 	unique, 	we 	think 	that 	from 	a
larger 	perspective, 	education may 	have 	far
greater 	social 	significance 	than 	a 	free
transcript 	or 	a 	court-appointed 	lawyer.
"(E)ducation 	not 	only 	affects 	directly 	a
vastly 	greater 	number 	of 	persons 	than 	the
criminal 	law, 	but 	it 	affects 	them 	in ways
which--to 	the 	state--have 	an 	enormous 	and
much 	more 	varied 	significance. 	Aside 	from
reducing 	the 	crime 	rate 	(the 	inverse
relation 	is 	strong), 	education 	also 	supports
each 	and 	every 	other 	value 	of 	a 	democratic
society--participation, 	communication, 	and
social 	mobility, 	to 	name 	but 	a 	few." 	(Fn.
omitted.) 	(Coons, 	Clune 	& Sugarman, 	supra,
57 	Cal.L.Rev. 	305, 	362-363.)
The 	analogy 	between 	education 	and 	voting 	is
much 	more 	direct: 	both 	are 	crucial 	to
participation 	in, 	and 	the 	functioning 	of, 	a
democracy. 	Voting 	has 	been 	regarded 	as 	a
fundamental 	right 	because 	it 	is
"preservative 	of 	other 	basic 	civil 	and
political 	rights. 	" 	[Citations.] 	The
drafters 	of 	the 	California 	Constitution 	used
this 	same 	rationale--indeed, 	almost
identical 	language--in 	expressing 	the
importance 	of 	education. 	Article 	IX,
section 	1 	provides: 	"A 	general 	diffusion 	of
knowledge 	and 	intelligence 	being 	essential
to 	the 	preservation 	of 	the 	rights 	and
liberties 	of 	the 	people, 	the 	Legislature
shall 	encourage 	by 	all 	suitable 	means 	the
promotion 	of 	intellectual, 	scientific,
16

moral, 	and 	agricultural 	improvement." 	(See
also 	Piper 	v. 	Big 	Pine 	School 	Dist., 	supra,
193 	Cal. 	664, 	668.) 	At 	a 	minimum, 	education
makes 	more 	meaning 	1 	the 	casting 	of 	a
ballot. 	More 	significantly, 	it 	is 	likely 	to
provide 	the 	understanding 	of, 	and 	the
interest 	in, 	public 	issues 	which 	are 	the
spur 	to 	involvement 	in 	other 	civic 	and
political 	activities.
The 	need 	for 	an 	educated 	populace 	assumes
greater 	importance 	as 	the 	problems 	of 	our
diverse 	society 	become 	increasingly
complex. 	The 	United 	States 	Supreme 	Court
has 	repeatedly 	recognized 	the 	role 	of 	public
education 	as 	a 	unifying 	social 	force 	and 	the
basic 	tool 	for 	shaping 	democratic 	values.
The 	public 	school 	has 	been 	termed 	"the 	most
powerful 	agency 	for 	promoting 	cohesion 	among
a 	heterogeneous 	democratic 	people 	. 	. 	. 	at
once 	the 	symbol 	of 	our 	democracy 	and 	the
most 	pervasive 	means 	for 	promoting 	our
common 	destiny." 	(McCollum v. 	Board 	of
Education 	(1948) 	333 	U.S. 	203, 	216, 	231
(Frankfurter, 	J., 	concurring).) 	In 	Abington
School 	Dist. 	v. 	Schempp 	(1963) 	374 	U.S. 	203,
it 	was 	said 	that 	"Americans 	regard 	public
schools 	as 	a 	most 	vital 	civic 	institution
for 	the 	preservation 	of 	a 	democratic 	system
of 	government." 	at 	p. 	230
(Brennan, 	J., 	concurring).)
We 	are 	convinced 	that 	the 	distinctive 	and
priceless 	function 	of 	education 	in 	our
society warrants, 	indeed 	compels, 	our
treating 	it 	as 	a 	"fundamental 	interest."26
First, 	education 	is 	essential 	in 	maintaining
what 	several 	commentators 	have 	termed 	"free
enterprise 	democracy"--that 	is, 	preserving
an 	individual's 	opportunity 	to 	compete
successfully 	in 	the 	economic 	marketplace,
despite 	a 	disadvantaged 	background.
Accordingly, 	the 	public 	schools 	of 	this
state 	are 	the 	bright 	hope 	for 	entry 	of 	the
poor 	and 	oppressed 	into 	the 	mainstream 	of
American 	society.
Second, 	education 	is 	universally 	relevant.
"Not 	every 	person 	finds 	it 	necessary 	to 	call
upon 	the 	fire 	department 	or 	even 	the 	police
17

in 	an 	entire 	lifetime. 	Relatively 	few 	are
on 	welfare. 	Every 	person, 	however, 	benefits
from 	education. 	" 	(Fn. 	omitted.)
(Coons, 	Clune 	& Sugarman, 	supra,
57 	Cal.L.Rev. 	at 	p. 	388.)
Third, 	public 	education 	continues 	over 	a
lengthy 	period 	of 	lif e--between 	10 	and 	13
years. 	Few 	other 	government 	services 	have
such 	sustained, 	intensive 	contact 	with 	the
recipient.
Fourth, 	education 	is 	unmatched 	in 	the 	extent
to 	which 	it 	molds 	the 	personality 	of 	the
youth 	of 	society. 	While 	police 	and 	fire
protection, 	garbage 	collection 	and 	street
lights 	are 	essentially 	neutral 	in 	their
effect 	on 	the 	individual 	psyche, 	public
education 	actively 	attempts 	to 	shape 	a
child's 	personal 	development 	in 	a 	manner
chosen 	not 	by 	the 	child 	or 	his 	parents 	but
by 	the 	state. 	(Coons, 	Clune 	& Sugarman,
supra, 	57 	Cal.L.Rev. 	at 	p. 	389.) 	"(T)he
influence 	of 	the 	school 	is 	not 	confined 	to
how well 	it 	can 	teach 	the 	disadvantaged
child; 	it 	also 	has 	a 	significant 	role 	to
play 	in 	shaping 	the 	student's 	emotional 	and
psychological 	make-up." 	[Citation.]
Finally, 	education 	is 	so 	important 	that 	the
state 	has 	made 	it 	compulsory--not 	only 	in
the 	requirement 	of 	attendance 	but 	also 	by
assignment 	to 	a 	particular 	district 	and
school. 	Although 	a 	child 	of 	wealthy 	parents
has 	the 	opportunity 	to 	attend 	a 	private
school, 	this 	freedom 	is 	seldom 	available 	to
the 	indigent .
. 	Obviously, 	any 	judgment 	invalidating
the 	existing 	system 	of 	public 	school
financing 	should 	make 	clear 	that 	the
existing 	system 	is 	to 	remain 	operable 	until
an 	appropriate 	new 	system, 	which 	is 	not
violative 	of 	equal 	protection 	of 	the 	laws,
can 	be 	put 	into 	effect.
By 	our 	holding 	today we 	further 	the
cherished 	idea 	of 	American 	education 	that 	in
a 	democratic 	society 	free 	public 	schools
18

shall 	make 	available 	to 	all 	children 	equally
the 	abundant 	gifts 	of 	learning. 	This 	was
the 	credo 	of 	Horace Mann, 	which 	has 	been 	the
heritage 	and 	inspiration 	of 	this 	country.
"I 	believe," 	he 	wrote, 	"in 	the 	existence 	of
a 	great, 	immortal 	immutable 	principle 	of
natural 	law, 	or 	natural 	ethics,--a 	principle
antecedent 	to 	all 	human 	institutions, 	and
incapable 	of 	being 	abrogated 	by 	any
ordinance 	of 	man. 	. which 	proves 	the
absolute 	right 	to 	an 	education 	of 	every
human 	being 	that 	comes 	into 	the 	world, 	and
which, 	of 	course, 	proves 	the 	correlative
duty 	of 	every 	government 	to 	see 	that 	the
means 	of 	that 	education 	are 	provided 	for
all. 	" 	(Original 	italics.) 	(Old 	South
Leaflets 	V, 	No. 	109 	(1846) 	pp. 	177-180
(Tenth Annual 	Report 	to 	Mass. 	State 	Bd. 	of
Ed.), 	quoted 	in 	Readings 	in American
Education 	(1963 	Lucio 	ed.) 	p. 	336.)
Footnote 	26, 	supra, 	set 	forth:
The 	uniqueness 	of 	education 	was 	recently
stressed 	by 	the 	United 	States 	Supreme 	Court
in 	Palmer 	v. 	Thompson 	(1971) 	403 	U.S. 	217,
where 	the 	court 	upheld 	the 	right 	of 	Jackson,
Mississippi 	to 	close 	its 	municipal 	swimming
pools 	rather 	than 	operate 	them 	on 	an
integrated 	basis. 	Distinguishing 	an 	earlier
Supreme 	Court 	decision 	which 	refused 	to
permit 	the 	closing 	of 	schools 	to 	avoid
desegregation, 	the 	court 	stated: 	"Of 	course
that 	case 	did 	not 	involve 	swimming 	pools 	but
rather 	public 	schools, 	an 	enterprise 	we 	have
described 	as 	'perhaps 	the 	most 	important
function 	of 	state 	and 	local 	governments.'
Brown 	v. 	Board 	of 	Education, 	supra, 	at
493." 	(Id. 	at 	p. 	221.) 	This 	theme 	was
echoed 	in 	the 	concurring 	opinion 	of 	Justice
Blackmun, 	who 	wrote: 	"The 	pools 	are 	not
part 	of 	the 	city's 	educational 	system. 	They
are 	a 	general 	municipal 	service 	of 	the
nice-to-have 	but 	not 	essential 	variety, 	and
they 	are 	a 	service, 	perhaps 	a 	luxury, 	not
enjoyed 	by many 	communities." 	(Id. 	at
p. 	229.)
(Serrano 	v. 	Priest, 	supra, 	5 	Cal.3d 	584,
604-610, 	619.)
19

In 	1984, 	the 	Supreme 	Court 	reinforced 	its 	recognition 	in
Serrano 	I 	of 	the 	vital 	importance 	of 	the 	operation 	of 	the
public 	school 	system 	in 	Hartzell 	v. 	Connell, 	supra, 	35 	Cal.3d
899 I 	906-909, 	In 	rejecting 	an 	attempt 	by 	a 	high 	school
district 	to 	require 	students 	to 	pay 	fees 	for 	participation 	in
extracurricular 	music 	and 	sports 	activities, 	the 	Supreme 	Court
stated 	(Id. 	at 	pp. 	906-913):
this 	court 	must 	examine 	the 	role
played 	by 	education 	in 	the 	overall
constitutional 	scheme. 	Because 	the 	nature
of 	the 	free 	school 	concept 	has 	rarely 	been
addressed 	by 	the 	courts, 	it 	will 	be
necessary 	to 	explore 	its 	underpinnings 	in
some 	depth.
The 	free 	school 	guarantee was 	enacted 	at 	the
Constitutional 	Convention 	of 	1878-1879.
Also 	adopted 	was 	article 	IX, 	section 	1,
which 	proclaims 	that 	"[a] 	general 	diffusion
of 	knowledge 	and 	intelligence 	[is] 	essential
to 	the 	preservation 	of 	the 	rights 	and
liberties 	of 	the 	people. 	" 	(Original
italics.) 	Joseph W. 	Winans, 	chairperson 	for
the 	convention's 	Committee 	on 	Education,
elaborated: 	"Public 	education 	forms 	the
basis 	of 	self-government 	and 	constitutes 	the
very 	corner 	stone 	of 	republican
institutions." 	(Debates 	and 	Proceedings,
Cal. 	Const. 	Convention 	1878-1879, 	p. 	1087
[hereafter 	Proceedings].) 	[Fn. 	omitted.]
In 	support 	of 	section 	1, 	delegate 	John 	T.
Wickes 	argued 	that 	"a 	liberal 	education
. 	breaks 	down 	aristocratic 	caste; 	for
the 	man 	who 	had 	a 	liberal 	education, 	if 	he
has 	no 	money, 	if 	he 	has 	no 	wealth, 	he 	can
stand 	in 	the 	presence 	of 	his 	fellow-men 	with
the 	stamp 	of 	divinity 	upon 	his 	brow, 	and
shape 	the 	laws 	of 	the 	people 	"
(Proceedings, 	at 	p. 	1088.)
This 	theme 	runs 	like 	a 	unifying 	thread
through 	the 	writings 	of 	our 	forefathers. 	In
1786, 	Thomas 	Jefferson 	wrote 	from 	France,
then 	a 	monarchy: 	"I 	think 	by 	far 	the 	most
20

important 	bill 	in 	our 	whole 	code 	is 	that 	for
the 	diffusion 	of 	knowledge 	among 	the
people. 	No 	other 	sure 	foundation 	can 	be
devised 	for 	the 	preservation 	of 	freedom, 	and
happiness. 	Preach, 	my 	dear 	Sir, 	a
crusade 	against 	ignorance; 	establish 	and
improve 	the 	law 	for 	educating 	the 	common
people. 	Let 	our 	country.men 	know 	that 	the
people 	alone 	can 	protect 	us 	against 	these
evils 	[of 	kings, 	nobles, 	and 	priests]."
(Jefferson, 	Letter 	to 	George 	Wythe, 	in 	The
Portable 	Thomas 	Jefferson 	(Peterson 	edit.
1979) 	pp. 	399-400.)
John 	Swett, 	California's 	most 	prominent 	free
school 	advocate 	at 	the 	time 	section 	5 was
adopted, 	warned: 	"Our 	destruction, 	should
it 	come 	at 	all, 	will 	be 	. 	[f]rom 	the
inattention 	of 	the 	people 	to 	the 	concerns 	of
their 	government 	. 	I 	fear 	that 	they
may 	place 	too 	implicit 	confidence 	in 	their
public 	servants 	and 	fail 	properly 	to
scrutinize 	their 	conduct 	. 	Make 	them
intelligent, 	and 	they will 	be 	vigilant; 	give
them 	the 	means 	of 	detecting 	the 	wrong, 	and
they will 	apply 	the 	remedy." 	(Quoted 	in
Cloud, 	The 	Story 	of 	California's 	Schools
(194?) 	p. 	20.) 	Without 	education 	for 	all, 	a
majority 	of 	the 	people 	would 	be--in 	the
words 	of 	Horace 	Mann--"the 	vassals 	of 	as
severe 	a 	tyranny, 	in 	the 	form 	of 	capital, 	as
the 	lower 	classes 	of 	Europe 	are 	bound 	to 	in
the 	form 	of 	brute 	force." 	(Mann, 	Twelfth
Annual 	Report, 	in 	Educational 	Ideas 	in
America: 	A Documentary 	History 	(Rippa 	edit.
1969) 	p. 	199.)
Perhaps 	the 	most 	eloquent 	expression 	of 	the
free 	school 	idea 	came 	not 	from 	a 	political
leader 	or 	educator, 	but 	from 	the 	poet, 	Ralph
Waldo 	Emerson: 	"We 	have 	already 	taken, 	at
the 	planting 	of 	the 	Colonies, 	. 	the
initial 	step, 	which 	for 	its 	importance 	might
have 	been 	resisted 	as 	the 	most 	radical 	of
revolutions, 	thus 	deciding 	at 	the 	start 	the
destiny 	of 	this 	country,--this, 	namely, 	that
the 	poor 	man, 	whom 	the 	law 	does 	not 	allow 	to
take 	an 	ear 	of 	corn when 	starving, 	nor 	a
pair 	of 	shoes 	for 	his 	freezing 	feet, 	is
allowed 	to 	put 	his 	hand 	into 	the 	pocket 	of
the 	rich, 	and 	say, 	You 	shall 	educate 	me, 	not
21

as 	you 	will, 	but 	as 	I 	will: 	not 	alone 	in
the 	elements, 	but, 	by 	further 	provision, 	in
the 	languages, 	in 	sciences, 	in 	the 	useful
and 	in 	~legant 	arts." 	(Emerson, 	Education,
in 	Educational 	Ideas 	in America: 	A
Documentary 	History, 	suprQ, 	at 	p. 	176.)
The 	contribution 	of 	education 	to 	democracy
has 	a 	political, 	an 	economic, 	and 	a 	social
dimension.
As 	this 	court 	has 	previously 	noted,
education 	prepares 	students 	for 	active
involvement 	in 	political 	affairs.
(Serrano 	v. 	Priest 	(1971) 	5 	Cal.3d 	584,
607-608 	[96 	Cal.Rptr. 	601, 	487 	P.2d 	1241,
481 	A.L.R.3d 	1187] 	[hereafter, 	Serrano 	I].)
[Fn. 	omitted.] 	Education 	stimulates 	an
interest 	in 	the 	political 	process 	and
provides 	the 	intellectual 	and 	practical
tools 	necessary 	for 	political 	action.
Indeed, 	education 	may well 	be 	"the 	dominant
factor 	in 	influencing 	political
participation 	and 	awareness." 	(San 	Antonio
School 	District 	v. 	Rodriguez 	(1973) 	411 	U.S.
1, 	114, 	fn. 	72 	[36 	L.Ed.2d 	16, 	90, 	93 	S.Ct.
1278] 	(dis. 	opn. 	of 	Marshall, 	J.).) 	With
the 	rise 	of 	the 	electronic 	media 	and 	the
development 	of 	sophisticated 	techniques 	of
political 	propaganda 	and 	mass 	marketing,
education 	plays 	an 	increasingly 	critical
role 	in 	fostering 	"those 	habits 	of
open-mindedness 	and 	critical 	inquiry which
alone 	make 	for 	responsible 	citizens, 	who, 	in
turn, 	make 	possible 	an 	enlightened 	and
effective 	public 	opinion" 	(Wieman 	v.
Updegraff 	(1952) 	344 	U.S. 	183, 	196 	[97 	L.E.
216, 	225, 	73 	S.Ct. 	215] 	(cone. 	opn. 	of
Frankfurter, 	J.).) 	Without 	high 	quality
education, 	the 	populace 	will 	lack 	the
knowledge, 	self-confidence, 	and 	critical
skills 	to 	evaluate 	independently 	the
pronouncements 	of 	pundits 	and 	political
leaders. 	Moreover, 	education 	provides 	more
than 	intellectual 	skills; 	it 	also 	supplies
the 	practical 	training 	and 	experience--from
communicative 	skills 	to 	experience 	in 	group
activities--necessary 	for 	full 	participation
in 	the 	"uninhibited, 	robust, 	and 	wide-open"
debate 	that 	is 	central 	to 	our 	democracy
(New York 	Times 	Co. 	v. 	Sullivan 	(1964)
22

376 	U.S. 	254, 	270 	[11 	L.Ed.2d 	686, 	701,
84 	S.Ct. 	710, 	95 	A.L.R.2d 	1412] .)
Not 	only 	does 	education 	provide 	skills
useful 	in 	political 	activity, 	it 	also
prepares 	individuals 	to 	participate 	in 	the
institutional 	structures--such 	as 	labor
unions 	and 	business 	enterprises--that
distribute 	economic 	opportunities 	and
exercise 	economic 	power. 	Education 	holds
out 	a 	"bright 	hope" 	for 	the 	"poor 	and
oppressed" 	to 	participate 	fully 	in 	the
economic 	life 	of 	American 	society.
(Serrano 	I, 	supra, 	5 	Cal.3d 	at 	p. 	609.)
And, 	it 	is 	"an 	essential 	step 	in 	providing
the 	disadvantaged 	with 	the 	tools 	necessary
to 	achieve 	economic 	self-sufficiency."
(San 	Antonio 	School 	District 	v. 	Rodriquez,
supra, 	411 	U.S. 	at 	p. 	115, 	fn~ 	74
[36 	L.Ed.2d 	at 	p. 	91] 	(dis. 	opn. 	of
Marshall, 	J.).)
Finally, 	education 	serves 	as 	a 	"unifying
social 	force" 	among 	our 	varied 	population,
promoting 	cohesion 	based 	upon 	democratic
values. 	(Serrano 	I, 	supra, 	5 	Cal.3d 	at
p. 	608; 	see 	also 	Ambach 	v. 	Norwick 	(1979)
441 	U.S. 	68, 	77 	[60 	L.Ed.2d 	49, 	56, 	99 	S.Ct.
1589] .) 	The 	public 	schools 	bring 	together
members 	of 	different 	racial 	and 	cultural
groups 	and, 	hopefully, 	help 	them 	to 	live
together 	"'in 	harmony 	and 	mutual 	respect.'"
(Washington 	v. 	Seattle 	School 	Dist. 	No. 	1
(1982) 	458 	U.S. 	457, 	473 	[73 	L.Ed.2d 	896,
909, 	102 	S.Ct. 	3187, 	3196] .)
The 	court 	continued 	by 	discussing 	the 	importance 	of
extracurricular 	activities, 	describing 	them 	as 	constituting
"an 	integral 	component 	of 	public 	education" 	and 	"generally
recognized 	as 	a 	fundamental 	ingredient 	of 	the 	educational
process." 	(Id. 	at 	p. 	909.) 	Consequently, 	the 	court 	held 	that
such 	activities 	fall 	within 	the 	free 	school 	guarantee 	of 	the
Constitution, 	and 	no 	fee 	may 	be 	imposed 	for 	participation 	in
those 	activities. 	Thus, 	it 	is 	clear 	from 	the 	court's
23

discussion 	that 	extracurricular 	activities 	stand 	in 	no
different 	stead 	than 	does 	the 	regular 	instructional 	program 	in
terms 	of 	importance 	to 	the 	provision 	of 	public 	education. 	The
court 	concluded 	by 	saying:
Finally, 	defendants 	warn 	that, 	if 	the 	fees
are 	invalidated, 	many 	school 	districts 	may
be 	forced 	to 	drop 	some 	extracurricular
activities. 	They 	argue 	that 	invalidation
would--in 	the 	name 	of 	the 	free 	school
guarantee--produce 	the 	anomalous 	result 	of
reducing 	the 	number 	of 	educational
opportunities 	available 	to 	students.
This 	court 	recognizes 	that, 	due 	to 	legal
limitations 	on 	taxation 	and 	spending 	(see
ante, 	fn. 	1), 	school 	districts 	do 	indeed
operate 	under 	difficult 	financial
constraints. 	However, 	financial 	hardship 	is
no 	defense 	to 	a 	violation 	of 	the 	free 	school
guarantee.
Perhaps, 	in 	the 	view 	of 	some, 	public
education 	could 	be 	more 	efficiently 	financed
by 	peddling 	it 	on 	the 	open 	market. 	Under
the 	California 	Constitution, 	however, 	access
to 	public 	education 	is 	a 	right 	enjoyed 	by
all--not 	a 	commodity 	for 	sale. 	Educational
opportunities 	must 	be 	provided 	to 	all
students 	without 	regard 	to 	their 	families'
ability 	or 	willingness 	to 	pay 	fees 	or
request 	special 	waivers. 	This 	fundamental
feature 	of 	public 	education 	is 	not
contingent 	upon 	the 	inevitably 	fluctuating
financial 	health 	of 	local 	school 	districts.
A 	solution 	to 	those 	financial 	difficulties
must 	be 	found 	elsewhere--for 	example,
through 	the 	political 	process.
(35 	Cal.3d 	at 	pp. 	912-913.)
It 	is 	therefore 	evident 	that 	the 	operation 	of 	public
schools 	occupies 	a 	preeminent 	position 	in 	California, 	and 	the
right 	to 	an 	education 	has 	been 	determined 	by 	the 	Supreme 	Court
to 	be 	a 	fundamental 	interest. 	In 	looking 	at 	the 	relevant
24

provisions 	of 	the 	California 	Constitution 	which 	bear 	on 	any
statutes--including 	EERA--that 	could 	affect 	the 	operation 	of
the 	public 	school 	system, 	such 	provisions 	must 	be 	viewed 	in
light 	of 	section 	26 	of 	article 	I 	of 	the 	Constitution 	which
prescribes: 	"The 	provisions 	of 	this 	Constitution 	are 	mandatory
and 	prohibitory, 	unless 	by 	express 	words 	they 	are 	declared 	to
be 	otherwise." 	(Cal. 	Const., 	art. 	I, 	sec. 	26.) 	In 	State 	Board
of 	Education 	v. 	Levit 	(1959) 	52 	Cal.2d 	441, 	460, 	our 	Supreme
Court 	pointedly 	emphasized 	the 	necessity 	of 	adhering 	to 	this
constitutional 	mandate 	with 	respect 	to 	article 	IX 	provisions:
Before 	examining 	further 	the 	provisions 	of
section 	7, 	article 	IX 	of 	the 	Constitution,
it 	should 	be 	noted 	that 	the 	Constitution 	of
1879 	provides 	in 	section 	22 	[now 	sec. 	26] 	of
article 	I, 	as 	follows: 	"The 	provisions 	of
this 	Constitution 	are 	mandatory 	and
prohibitory, 	unless 	by 	express 	words 	they
are 	declared 	to 	be 	otherwise." 	As 	early 	as
January 	1881 	this 	court 	held 	in Matter 	of
Maguire, 	57 	Cal. 	604, 	at 	page 	609, 	as
follows: 	"The 	Constitution 	furnishes 	a 	rule
for 	its 	own 	construction. 	That 	rule 	is 	that
its 	provisions 	are 	'mandatory 	and
prohibitory, 	unless 	by 	expressed 	words 	they
are 	declared 	to 	be 	otherwise.' 	(Art. 	I,
sec. 	22.) 	We 	find 	no 	such 	express 	words 	in
the 	Constitution. 	This 	rule 	is 	an
admonition 	placed 	in 	this 	the 	highest 	of
laws 	in 	this 	State, 	that 	its 	requirements
are 	not 	meaningless, 	but 	that 	what 	is 	said
is 	meant, 	in 	brief, 	'we 	mean 	what 	we 	say.'
Such 	is 	the 	declaration 	and 	command 	of 	the
highest 	sovereignty 	among 	us, 	the 	people 	of
the 	State, 	in 	regard 	to 	the 	subject 	matter
under 	consideration." 	Thereafter, 	in 	1886,
in 	Oakland 	Paving 	Co. 	v. 	Hilton, 	69 	Cal.
479, 	this 	section was 	referred 	to 	and 	at
page 	512 	it 	was 	held: 	" 	. 	(U) nder 	our
constitution 	no 	question 	can 	be 	made 	whether
the 	provision 	in 	it 	for 	its 	amendment 	is
mandatory 	or 	directory. 	That 	question 	is
25

settled 	by 	the 	constitution 	itself, 	which
ordains 	in 	the 	most 	solemn 	form 	and 	manner
that 	each 	and 	all 	of 	its 	provisions 	are
mandatory 	and 	prohibitory, 	unless 	by 	express
words 	declared 	to 	be 	otherwise. 	(Art. 	1,
sec. 	22.) 	This 	section, 	in 	our 	judgment,
not 	only 	commands 	that 	its 	provisions 	shall
be 	obeyed, 	but 	that 	disobedience 	of 	them 	is
prohibited. 	Under 	the 	stress 	of 	this 	rule,
it 	is 	the 	duty 	of 	this 	court 	to 	give 	effect
to 	every 	clause 	and 	word 	of 	the
constitution, 	and 	to 	take 	care 	that 	it 	shall
not 	be 	frittered 	away 	by 	subtle 	or 	refined
or 	ingenious 	speculation. 	The 	people 	use
plain 	language 	in 	their 	organic 	law 	to
express 	their 	intent 	in 	language 	which
cannot 	be 	misunderstood, 	and 	we 	must 	hold
that 	they 	meant 	what 	they 	said." 	. 	. 	In
Santa 	Clara 	County v. 	Superior 	Court 	(1949)
33 	Cal.2d 	552, 	this 	court 	again 	held 	in 	no
uncertain 	terms 	at 	page 	554, 	as 	follows:
"Unquestionably, 	it 	must 	be 	recognized 	that
our 	Constitution 	(art. 	I, 	sec. 	22) 	makes 	its
provisions 	'mandatory 	and 	prohibitory,
unless 	by 	express 	words 	they 	are 	declared 	to
be 	otherwise'; 	that 	this 	declaration 	applies
to 	all 	sections 	of 	our 	Constitution 	alike,
and 	every 	one 	subject 	to 	its 	mandate--county
authorities 	as 	well 	as 	departments 	of 	the
state 	government--must 	comply." 	The
provisions 	of 	section 	22 	of 	article 	I 	are
therefore 	binding 	upon 	this 	court 	in 	its
construction 	of 	the 	provisions 	of 	the
Constitution. 	(52 	Cal.2d 	at 	460-461.)
This 	clear 	command 	of 	section 	26 	of 	article 	I 	is 	binding
upon 	all 	branches 	of 	state 	government, 	including 	this 	Board.
(Mosk 	v. 	Superior 	Court 	& Commission 	on 	Judicial 	Performance
(1979) 	25 	Cal.3d 	474, 	493, 	fn. 	17; 	Jenkins 	v. 	Knight, 	Governor
of 	State 	of 	California 	(1956) 	46 	Cal.2d 	220, 	224; 	Unger 	v.
Superior 	Court 	of 	Marin 	County 	(1980) 	102 	Cal.App.3d 	681, 	685,
cert. 	den. 	449 	U.S. 	1131.)
With 	the 	foregoing 	in mind, 	we 	begin with 	section 	1 	of
26

article 	IX 	of 	the 	Constitution which 	provides 	that:
A general 	diffusion 	of 	knowledge 	and
intelligence 	being 	essential 	to 	the
preservation 	of 	the 	rights 	and 	liberties 	of
the 	people, 	the 	Legislature 	shall 	encourage
by 	all 	suitable 	means 	the 	promotion 	of
intellectual, 	scientific, 	moral 	and
agricultural 	improvement. 	(Cal. 	Const.,
art. 	IX, 	sec. 	1, 	emphasis 	added.)
Moreover, 	the 	public 	policy 	expressed 	and 	mandated 	in 	section 	1
of 	article 	IX 	is 	to 	support, 	maintain 	and 	strengthen 	the 	public
school 	system. 	(Whitmore 	v. 	Brown, 	supra, 	207 	Cal. 	473.)
Next, 	and 	of 	major 	significance 	in 	any 	analysis 	of 	EERA
provisions 	relevant 	in 	the 	instant 	matter, 	are 	the 	mandates 	of
section 	5, 	article 	IX:
The 	Legislature 	shall 	provide 	for 	a 	system
of 	common 	schools 	by which 	a 	free 	school
shall 	be 	kept 	up 	and 	supported 	in 	each
district 	at 	least 	six months 	in 	every 	year,
after 	the 	first 	year 	in which 	a 	school 	has
been 	established. 	(Cal. 	Const., 	art. 	IX,
sec. 	5, 	emphasis 	added.)
Section 	6 	of 	article 	IX 	prescribes 	annual 	minimum
salaries 4 for 	full-time 	teachers 	in 	the 	public 	school
system. 	Section 	6 	also 	mandates 	the 	Legislature 	to 	yearly 	add
to 	the 	State 	School 	Fund 	an 	amount 	not 	less 	than 	$180 	for 	every
pupil 	in 	average 	daily 	attendance 	(ADA) 	in 	a 	school 	district
during 	the 	preceding 	school 	term 	and 	to 	apportion 	the 	entire
State 	School 	Fund 	each 	fiscal 	year 	to 	the 	school 	districts 	and
4This 	constitutionally mandated 	minimum 	annual 	salary 	for
full-time 	teachers 	may 	not 	be 	reduced 	by 	contract. 	(See
26 	Ops.Cal.Atty.Gen. 	27, 	28 	(1955).)
27

other 	agencies 	maintaining 	the 	public 	schools, 	including 	to
each 	school 	district 	a 	minimum of 	$120 	per 	pupil 	in ADA 	in 	the
school 	district 5 . 	The 	State 	School Fund 	has 	on 	all
state 	revenues. 	Section 	8 	of 	article XVI 	of 	the 	Constitution
prescribes 	that 	"(f)rom 	all 	state 	revenues 	there 	shall 	first 	be
set 	apart 	the 	monies 	to 	be 	applied 	by 	the 	state 	for 	support 	of
the 	public 	school 	system 	and 	public 	institutions 	of 	higher
education." 	(Cal. 	Const., 	art. 	XVI, 	sec. 	8.) 	Over 	fifty
percent 	(50%) 	of 	California's 	state 	budget 	each 	year 	is
budgeted 	for 	and 	committed 	to 	the 	public 	schools, 	with 	billions
of 	tax 	dollars 	being 	spent 	every year 	to 	maintain 	and 	operate
the 	schools. 	(Serrano 	v. 	20 	Cal.3d
25, 	46, 	fn. 	18.)
To 	implement 	the 	constitutional 	mandates 	of 	section 	5 	and
. other 	sections 	of 	article 	IX, 	the 	Legislature 	enacted 	a
comprehensive 	Education 	Code 	and 	delegated 	to 	the .school-
districts 	the 	operation 	of 	the 	public 	schools. 	(Myers 	v.
Arcata 	Union 	High 	School 	District, 	supra, 	269 	Cal.App.2d 	549,
Association 	v. 	Board 	of 	Trustees 	of 	Fullerton Union 	High 	School
(1978) 	82 	Cal.App.3 	244, 	254, 	hg. 	den.)
5The 	ADA 	sum 	per 	pupil 	is 	actually much 	higher 	due 	to
legislative 	supplements 	designed 	to 	equalize, 	maintain 	and
improve 	school 	operations, 	including 	increasing 	the 	number 	of
instructional 	days, 	reducing 	class 	sizes, 	etc. 	(See 	v.
===-=-=' 	( 	5 	Cal.3d 	584, 	591-595.)
28

In 	complying 	with 	the 	constitutional 	mandate 	of 	section 	5
that 	the 	public 	schools 	be 	maintained 	and 	operated 	"at 	least
six 	months 	in 	every year" 	(Cal. 	Const., 	art. 	IX, 	sec. 	5;
California 	Teachers 	Association 	v. 	Board 	of 	Education 	of 	the
Glendale 	Unified 	School 	District 	(1980) 	109 	Cal.App.3d 	738,
744, 	hg. 	den.; 	Slayton 	v. 	Pomona 	Unified 	School 	District 	(1984)
161 	Cal.App.3d 	538, 	548), 	the 	Legislature 	has 	statutorily
prescribed 	in 	Education 	Code 	section 	41420 	that 	a 	school
district 	must 	maintain 	regular 	school 	days 	for 	at 	least 	175
days 	during 	the 	year. 	Education 	Code 	section 	37201 	provides
that 	a 	"school 	month" 	is 	20 	school 	days 	or 	4 	weeks 	of 	5 	school
days 	each, 	thus 	the 	minimum 	175 	days 	mandated 	by 	section 	41420
equates 	to 	35 	school 	weeks 	or 	8 	and 	3/4 	school 	months, 	nearly 	9
school 	months.
The 	Legislature 	also 	enacted 	the 	Compulsory 	Education 	Law
(Ed .. 	Code,. 	secs. 	48200-48324) ·requiring 	full-time 	attendance
during 	the 	district's 	school 	days 	for 	all 	persons 	between 	the
ages 	of 	6 	and 	16 	years 	(Ed. 	Code, 	sec. 	48200), 	subjecting 	to
arrest 	as 	a 	truant 	any minor 	who 	is 	away 	from 	home 	and 	absent
from 	school 	during 	school 	hours 	(Ed. 	Code, 	sec. 	48264; 	In 	re
Miguel 	G. 	(1980) 	111 	Cal.App.3d 	345, 	349-350, 	hg. 	den.), 	and
making 	it 	a 	crime 	for 	any 	parent, 	guardian 	or 	other 	person
having 	custody 	or 	charge 	of 	any minor 	to 	violate 	the 	Compulsory
Education 	Law 	(Ed. 	Code, 	sec. 	48293).
The 	importance 	of 	the 	Compulsory Education 	Law 	to 	those
constitutional 	mandates 	which 	require 	the 	Legislature 	to
29

provide 	for 	and 	maintain 	public 	schools 	in 	each 	school 	district
for 	at 	least 	six months 	of 	each year 	was 	emphasized 	in
Shinn, 	supra, 	195 	Cal.App.2d 	683, 	a 	truancy 	case 	in which 	the
parents 	had 	prevented 	their 	children 	from 	attending 	public
school 	because 	they 	felt 	the 	children were 	of 	superior
intelligence 	and 	could 	benefit 	more 	by 	a 	home 	education 	program
involving 	correspondence 	courses. 	In 	affirming 	the 	lower
court's 	judgment 	making 	the 	children wards 	of 	the 	juvenile
court 	and 	ordering 	the 	parents, 	under 	bond, 	to 	deliver 	the
children 	to 	public 	school 	and 	to 	keep 	them 	in 	public 	school
during 	the 	school 	year, 	the 	court 	stated 	(195 	Cal.App.2d 	at
686-687):
The 	people 	of 	California 	recognize 	the
maintenance 	of 	a 	democratic 	form 	of
government 	depends 	in 	part 	upon 	an 	educated
citizenry 	and 	declared 	in 	their 	Constitution
that 	a 	general 	diffusion 	of 	knowledge 	and
intelligence was 	essential 	to 	the
preservation 	of 	the 	rights.and 	liberties.of
the 	people. 	They made 	it 	the 	duty 	of 	the
Legislature 	to 	encourage 	by 	all 	suitable
means 	intellectual, 	scientific, 	moral 	and
agricultural 	improvement. 	(Cal. 	Const.,
art. 	IX, 	sec. 	1.) 	As 	a 	means 	of 	achieving 	a
general 	diffusion 	of 	knowlege 	and
intelligence, 	the 	Legislature 	was 	directed
to 	provide 	for 	a 	public 	school 	system of
common 	free 	schools. 	(Cal. 	Const., 	art. 	IX,
secs. 	5, 	6, 	7 	and 	14.) 	In 	obedience 	to 	the
constitutional 	mandate 	to 	bring 	about 	a
general 	diffusion 	of 	knowlege 	and
intelligence, 	the 	Legislature, 	over 	the
years, 	enacted 	a 	series 	of 	laws. 	A primary
purpose 	of 	the 	educational 	system 	is 	to
train 	school 	children 	in 	good 	citizenship,
patriotism 	and 	loyalty 	to 	the 	state 	and
nation 	as 	a 	means 	of 	protecting 	the 	public
welfare. 	(Gabrielli 	v. 	Knickerbocker,
12 	Cal.2d 	85, 	92.) 	The 	Supreme 	Court 	of 	the
30

United 	States, 	in 	the 	case 	of 	v.
Society of 	Sisters, 	268 	U.S. 	510, 	held
that: 	"No 	question 	is 	raised 	concerning 	the
power 	of 	the 	state 	reasonab 	to 	regulate
all 	schools, 	to 	inspect, 	supervise 	and
examine 	them, 	their 	teachers 	and 	pupils; 	to
require 	that 	all 	children 	of 	proper 	age
attend 	some 	school, 	that 	teachers 	shall 	be
of 	good 	moral 	character 	and 	patriotic
disposition, 	that 	certain 	studies 	plainly
essential 	to 	good 	citizenship 	must 	be
taught, 	and 	that 	nothing 	be 	taught 	which 	is
manifestly 	inimical 	to 	the 	public 	welfare."
Included 	in 	the 	laws 	governing 	the
educational 	program were 	those 	regulating
the 	attendance 	of 	children 	at 	school 	and 	the
power 	of 	the 	state 	to 	enforce 	compulsory
education 	of 	children with 	the 	state 	at
some 	school 	is 	beyond 	question. 	{Meyer 	v.
262 	U.S. 	390; 	Ex 	parte 	Liddell,
93 	Cal. 	633, 	640.) 	The 	basic 	compulsory
education 	law 	is 	set 	forth 	in 	Education
Code, 	section 	12101, 	reading: 	"Each 	parent,
guardian, 	ornthe~.person 	having .control 	or
charge 	of 	any 	child 	between 	the 	ages 	of 	8
and 	16 	years, 	not 	exempted 	under 	the
provisions 	of 	this 	chapter 	{commencing 	at
section 	12101), 	shall 	send 	the 	child 	to 	the
public 	ful 	ime 	day 	school 	for 	the 	full
time 	r 	which 	the 	public 	schools 	of 	the
city, 	city 	and 	county, 	or 	school 	district 	in
which 	the 	child 	lives 	are 	in 	session."
Nor 	is 	this 	enforced 	compulsory 	school 	attendance 	by
California's 	children 	for 	at 	least 	8 	and 	3/4 	months 	of 	each
year 	as 	mandated 	by 	the 	Constitution 	and 	the 	Legislature 	all
one-sided. 	California's 	children 	(as 	well 	as 	their 	parents 	and
the 	people 	of 	this 	State) 	are 	constitutionally 	and 	statutorily
guaranteed 	the 	legal 	right 	to 	have 	the 	public 	schools 	in
operation, 	open 	to 	their 	attendance, 	and 	providing
uninterrupted 	instruction 	and 	educational 	activities 	for 	the
minimum 	mandated 	school 	term each 	year. 	{Cal. 	Const., 	art. 	!Xi
31

Ed. 	Code, 	secs. 	41420, 	48200-48324; 	Slayton 	v. 	Pomona 	Unified
School 	District, 	supra, 	161 	Cal.App.3d 	538, 	548-549;
Hartzell 	v. 	Connell, 	supra, 	35 	Cal.3d 	899, 	906-911; 	Serrano 	v.
Priest, 	supra, 	5 	Cal.3d 	584, 	595-596, 	605-610.) 	These
constitutional 	and 	statutory 	educational 	prescriptions 	and
rights 	are 	succinctly 	summarized 	in 	Slayton 	v. 	Pomona 	Unified
School 	District, 	supra, 	161 	Cal.App.3d 	538, 	at 	548-549:
. 	California 	has 	extended 	the 	right 	to
an 	education 	by 	virtue 	of 	two 	constitutional
provisions, 	one 	calling 	for 	legislative
encouragement 	of 	education 	(Cal. 	Const.,
art. 	IX, 	sec. 	1) 	and 	the 	other 	requiring 	the
Legislature 	to 	create 	a 	system 	of 	"free
schools" 	in 	each 	district 	of 	the 	state 	(Cal.
Const., 	art. 	IX, 	sec. 	5) . 	It 	has 	also
extended 	the 	right 	to 	an 	education 	by 	a
statutory 	prescription 	for 	a 	compulsory
full-time 	education 	for 	all 	persons 	between
the 	ages 	of 	6 	and 	16 	(Ed. 	Code, 	sec.
48200). 	The 	early 	case 	of 	Ward 	v. 	Flood
(1874) 	48 	Cal. 	36, 	considered 	the 	provisions
of 	the 	Constitution 	of 	1849 	relative 	to
educational 	affairs 	which, 	in 	all 	material
respects, 	were 	similar 	to 	the 	present
Cons ti tut ion. 	The 	Supreme 	Court 	said: 	"The
opportunity 	of 	instruction 	at 	public 	schools
is 	afforded 	the 	youth 	of 	the 	state 	by 	the
statute 	of 	the 	state, 	enacted 	in 	obedience
to 	the 	special 	command 	of 	the 	constitution
of 	the 	state, 	directing 	that 	the 	legislature
shall 	provide 	for 	a 	system 	of 	common
schools, 	by which 	a 	school 	shall 	be 	kept 	up
and 	supported 	in 	such 	district, 	at 	least
three 	months 	every 	year, 	etc. 	(art. 	XIX,
sec. 	3). 	The 	advantage 	or 	benefit 	thereby
vouchsafed 	to 	each 	child, 	of 	attending 	a
public 	school 	is, 	therefore, 	one 	derived 	and
secured 	to 	it 	under 	the 	highest 	sanction 	of
positive 	law. 	It 	is 	therefore, 	Q 	right--Q
legal 	riqht--as 	distinctively 	so 	as 	the
vested 	right 	in 	property 	owned 	is 	a 	legal
right, 	and 	as 	such 	it 	is 	protected, 	and
entitled 	to 	be 	protected 	by 	all 	the
guarantees 	by which 	other 	legal 	rights 	are
32

protected 	and 	secured 	to 	the 	possessor."
(48 	Cal. 	at 	p. 	50, 	italics 	added; 	quoted 	in
Piper 	v. 	Big 	Pines 	School 	Dist. 	(1924)
193 	Cal. 	664, 	670.)
To 	provide 	for 	the 	mandatory 	nine 	months 	of 	public 	school
education, 	the 	Education 	Code 	requires 	school 	districts 	to
employ 	teachers, 	instructors, 	and 	other 	nonteaching 	personnel,
and 	establishes 	in 	connection 	therewith 	"a 	complete 	system
dealing 	with 	the 	credentials, 	employment, 	tenure, 	leave,
salaries, 	dismissal, 	retirement, 	and 	other 	employee 	rights 	and
obligations 	applicable 	to 	public 	school 	employees."
(California 	Federation 	of 	Teachers, 	AFL-CIO 	v.
Elementary 	Schools 	(1969) 	272 	Cal.App.2d 	514, 	529, 	hg. 	den.)
Insightful 	is 	the 	decision 	in 	Compton 	Community College
Federation 	of 	Teachers, 	AFT 	Local 	3486, 	AFL-CIO 	v. 	Compton
(1985) 	165 	Cal.App.3d 	82, 	hg. 	den.,
where, 	in 	dealing 	with 	the 	issue 	of 	whether 	the 	constitutional
debt 	limitation 	barred 	the 	payment 	by 	the 	school 	district 	of 	a
negotiated 	reactive 	salary 	increase, 	the 	court 	observed
(165 	Cal.App.3d 	at 	92-95):
C. 	California 	Law 	Imposes 	a 	Specific 	Duty
on 	the 	Compton 	College 	District 	to 	Employ
Teachers 	and 	Not 	to 	Reduce 	Their
Compensation 	During 	the 	Contract Year.
The 	Duty 	begins 	with 	the 	California
Constitution which 	makes 	education 	one 	of
the 	highest 	priorities 	of 	state 	and 	local
government. 	(Ca 1. 	Const., 	art. 	IX, 	secs. 	1,
5; 	art. 	XVI, 	sec. 	8; 	v.
(1976) 	18 	Cal.3d 	728, 	763-767, 	cert. 	den.
Clowes 	v. 	Serrano 	(1977) 	432 	U.S. 	907.)
Education 	Code 	section 	72290 	requires 	each
district 	to 	employ 	and 	assign 	instructors
33

and 	other 	personnel. 	Nor 	is 	a 	district 	free
to 	hire 	anyone 	it 	wants 	as 	instructors,
sections 	87211, 	87274-87277 	and 	87289-87290
describe 	the 	qualifications 	and
certification 	required 	of 	persons 	a 	district
employs 	to 	educate 	its 	students. 	Government
Code 	section 	3543.2 	makes 	the 	duty 	still
more 	specific. 	It 	requires 	community
college 	districts 	to 	set 	salary 	schedules
after 	engaging 	in 	good 	faith 	bargaining
about 	"wages, 	hours 	of 	employment, 	and 	other
terms 	and 	conditions 	of 	employment."
(San Mateo 	City 	School 	District 	v. 	Public
Employment 	Relations 	Bd. 	(1983) 	33 	Cal.3d
850, 	856.)
Thus, 	the 	Compton 	College 	District 	had 	a
specific 	duty 	to 	employ 	the 	teachers 	needed
to 	provide 	education 	to 	its 	citizens 	and 	to
pay 	them 	according 	to 	a 	set 	salary
schedule. 	This 	is 	not 	a 	case 	like
~~~~=' 	where 	the 	District 	had 	a 	choice
whether 	to 	engage 	in 	the 	activity which
triggered 	the 	state-mandated expenditure.
Here 	the 	District 	had 	a 	statutory 	duty 	to
provide 	education 	and 	to 	employ 	those 	needed
to 	carry 	out 	that 	function ..
It 	makes 	no 	difference 	how 	the 	board 	arrives
at 	the 	salary 	levels 	for 	the 	year--whether
by 	negotiations 	with 	a 	union 	or 	by
contracting 	with 	individual 	teachers 	on 	a
case 	by 	case 	basis 	or 	by 	establishing 	a
standard 	salary 	schedule. 	Once 	the 	amount
is 	set, 	it 	cannot 	be 	reduced 	during 	that
In 	relation 	to 	construing 	any 	statutory 	rights 	of 	public
school 	employees, 	the 	paramount 	of 	California's 	children
to 	attend 	the 	public 	schools 	and 	obtain 	for 	themselves 	and
society 	the 	benefits 	thereof 	is 	cogently 	recognized 	in
McGrath 	v. 	(1955) 	131 	Cal.App.2d 	367, 	377. 	In 	that
case, 	in 	dealing 	with 	educational 	statutes 	and 	a 	teacher's
34

contract 	of 	employment, 	the 	court 	observed:
. 	. 	. 	It 	must 	be 	borne 	in 	mind 	that 	the
respondent 	school 	authorities 	are 	entrusted
with 	the 	responsibility 	of 	administering 	the
affairs 	of 	the 	school 	district 	and 	that 	as
stated 	in 	Bates 	v. 	Board 	of 	Education,
139 	Cal. 	145, 	at 	page 	148:
"The 	public 	schools 	were 	not 	created,
nor 	are 	they 	supported, 	for 	the 	benefit
of 	the 	teachers 	therein, 	as 	implied 	by
the 	contention 	of 	the 	appellant, 	but
for 	the 	benefit 	of 	the 	pupils 	and 	the
resulting 	benefit 	to 	their 	parents 	and
the 	community 	at 	large."
And 	as 	stated 	in 	Knickerbocker 	v. 	Redlands
High 	School 	District, 	49 	Cal.App.2d 	722~ 	at
page 	727:
"The whole 	system 	of 	legislation
regulating 	the 	educational 	machinery 	is
based 	upon 	the 	consideration 	of 	the
welfare 	and 	best 	interests 	of 	the
children. 	The 	proper 	regulation 	of
tenure 	in 	office 	and 	other 	rights 	of
teachers 	were 	also 	properly 	considered
and 	regulated, 	but 	the 	fundamental
purpose 	and 	primary 	object 	of 	the
legislature 	was 	the 	consideration 	of
the 	welfare 	of 	the 	children. 	This
fundamental 	purpose 	must 	not 	be 	lost
sight 	of 	by 	courts 	in 	the 	construction
of 	legislation 	dealing 	with 	our
education 	system." 	(Emphasis 	added.)
In 	the 	same 	vein 	is 	the 	pronouncement 	of 	our 	Supreme 	Court
in 	Turner 	v. 	Board 	of 	Trustees, 	Calexico 	Unified 	School
District, 	supra, 	16 	Cal.3d 	818, 	825 	(emphasis 	added):
In 	considering 	the 	student's 	need 	for
education, 	the 	teacher's 	need 	for 	job
security, 	and 	the 	school 	board's 	need 	for
flexibility 	in 	evaluating 	and 	hiring
employees 	who 	may 	remain 	40 	years, 	the
Legislature 	may determine 	whether 	a
teacher's 	vested 	right 	shall 	be 	granted,
postponed 	or 	denied. 	(Board 	of 	Regents 	v.
35

Roth 	(1972) 	408 	U.S. 	564, 	577.) 	Our 	school
system 	is 	established 	not 	to 	provide 	jobs
for 	teachers 	but 	rather 	to 	educate 	the
young. 	Establishing 	a 	test 	period 	for
teachers 	to 	prove 	themselves 	is 	essential 	to
a 	good 	education 	system. 	While 	refusal 	to
grant 	total 	job 	security 	at 	the 	time 	of
initial 	hiring 	may 	be 	repugnant 	to 	those
pu~suing 	a 	teaching 	career, 	repeated
statutory 	amendments 	relating 	to
probationary 	teachers' 	rights 	[citation]
reveal 	that 	the 	Legislature 	has 	been 	well
aware 	of 	the 	delicate 	balancing 	necessary 	to
accommodate 	these 	sometimes 	competing
interests.
Consequently, 	in 	construing 	any 	legislation which 	could
affect 	the 	operation 	of 	the 	public 	schools, 	a 	lodestar 	which we
must 	keep 	in 	view 	is 	the 	affording 	of 	educational 	services 	to,
and 	the 	welfare 	of, 	the 	children. 	(Centinela 	Valley 	Secondary
Teachers 	Association 	v. 	Centinela Valley Union 	High 	School
(1974) 	37 	Cal.App.3d 	35, 	42, 	hg. 	den.; 	San Mateo 	City
School 	District 	v. 	Public 	Employment 	Relations 	Board 	(1983)
33 	Cal.3d 	850, 	863; 	Santa 	Barbara 	Federation 	of 	Teachers 	v.
Santa 	Barbara 	High 	School 	District 	(1977) 	76 	Cal.App.3d 	223,
906-911, 	921-922; 	Knickerbocker 	v. 	Redlands 	High 	School
(1942) 	49 	Cal.App.2d 	722, 	727, 	hg. 	den.; 	Serrano 	v.
v. 	Board 	of 	Trustees_L
Calexico 	Unified 	School 	District, 	supra, 	16 	Cal.3d 	818, 	825;
Crawford 	v. 	Board 	of 	Education 	of 	City 	of 	Los 	Angeles 	(1976)
17 	Cal.3d 	280, 	297.)
Thus, 	in 	analyzing 	any 	statute 	which 	relates 	to 	or 	could
affect 	the 	operation 	of 	the 	public 	schools, 	we 	must 	remain
36

cognizant--as 	we 	must 	assume 	the 	Legislature 	was 	of 	the
predominant 	position 	of 	the 	public 	school 	system 	as 	established
by 	our 	Constitution 	and 	implemented 	through 	the 	Education 	Code
(Cal. 	Const., 	arts. 	IX 	and 	XVI, 	sec. 	8; 	Ed. 	Code, 	secs.
1-99176; 	Serrano 	v. 	Priest, 	supra, 	5 	Cal.3d 	584, 	604-610, 	619;
Crawford 	v. 	Board 	of 	Education 	of 	City 	of 	Los 	Angeles, 	supra,
17 	Cal.3d 	280, 	297; 	Hartzell 	v. 	Connell, 	supra, 	35 	Cal.3d 	899,
906 	913; 	California 	Teachers 	Association 	v. 	Board 	of 	Trustees
of 	Fullerton 	Union 	High 	School 	District, 	supra, 	82 	Cal.App.3d
244, 	254), 	the 	required 	operation 	of 	the 	public 	schools 	for 	a
minimum 	school 	year 	term 	of 	at 	least 	6 months 	as 	mandated 	by
the 	Constitution 	(Cal. 	Const., 	art. 	IX, 	sec. 	5; 	Slayton 	v.
Pomona 	Unified 	School 	District, 	supra, 	161 	Cal.App.3d 	538,
548-549; 	California 	Teachers 	Association 	v. 	Board 	of 	Education
of 	the 	Glendale 	Unified 	School 	District, 	supra, 	109 	Cal.App.3d
738, 	744) 	and 	which 	has 	been 	statutorily mandated 	at 	nearly 	9
months 	by 	the 	Legislature, 	with 	attendance 	by 	those 	of 	6 	to 	16
years 	of 	age 	being 	compulsory 	(Ed. 	Code, 	secs. 	41420, 	48200),
and 	the 	constitutionally 	guaranteed 	rights 	of 	California's
children 	to 	attend 	and 	receive 	such 	education 	during 	the
mandated 	school 	year 	term 	(Slayton 	v. 	Pomona 	Unified 	School
District, 	supra, 	161 	Cal.App.3d 	538, 	548-549; 	California
Teachers 	Association 	v. 	Board 	of 	Education 	of 	Glendale 	Unified
School 	District, 	supra, 	109 	Cal.App.3d 	738, 	744-745; 	Serrano 	v.
Priest, 	supra, 	5 	Cal.3d 	584, 	604-608; 	Hartzell 	v. 	Connell,
supra, 	35 	Cal.3d 	899, 	906-913; 	Ward 	v. 	Flood 	(1874) 	48 	Cal. 	36,
37

50; 	v. 	Big 	Pine 	School 	District,
670).
And 	we 	must 	bear 	in 	mind 	that 	it 	is 	the 	shining 	star 	of 	the
children's 	education which 	is 	at 	the 	apex 	of 	the 	statutory
educational 	pyramid 	formed 	by 	a 	icle 	IX 	and 	the 	Education
Code, 	and 	that 	any 	and 	all 	statutes 	affecting 	the 	public
schools 	must 	be 	in 	support 	of 	and 	subservient 	thereto.
(Turner 	v. 	Board 	of 	Trustees, 	Calexico 	Unified 	School 	District,
supra, 	16 	cai.3d 	818, 	825; 	Hartzell 	v. 	Connell, 	supra,
35 	Cal.3d 	899, 	906-916; 	McGrath 	v. 	Burkhard, 	supra,
131 	Cal.App.2d 	367, 	377; 	Centinela 	Valley 	Secondary 	Teachers
Association 	v. 	Centinela 	Valley Union 	High 	School 	District,
supra, 	37 	Cal.App.3d 	35, 	42; 	San Mateo 	City 	School 	District 	v.
Public 	Employment 	Relations 	Board, 	supra, 	33 	Cal.3d 	850, 	863;
Santa 	Barbara 	Federation 	of 	Teachers 	v. 	Santa 	Barbara 	High
School 	District, 	supra, 	76 	Cal.App.3d 	223, 	234;
Knickerbocker 	v. 	Redlands 	High 	School 	District, 	supra,
49 	Cal.App.2d 	722, 	727; 	v. 	Priest,
605; 	Crawford 	v. 	Board 	of 	Education 	of 	City 	of 	Los 	Angeles,
supra, 	17 	Cal.3d 	280, 	297.)
The 	Law 	with 	Respect 	to 	Strikes 	by 	Public 	Employees
To 	understand 	the 	statutory 	labor 	law 	enactments 	of 	the
California 	Legislature, 	and 	to 	put 	them 	in 	their 	proper
context, 	it 	is 	helpful 	to 	outline 	the 	development 	of 	both
private 	and 	public 	sector 	labor 	laws.
38

In 	1932, 	Congress 	enacted 	the 	Norris~LaGuardia Act
(47 	Stat. 	70, 	29 	U.S.C. 	sec. 	102) 	dealing 	with 	the 	injunctive
relief 	jurisdiction 	of 	the 	federal 	courts 	in 	labor 	matters 	and
which 	set 	forth 	statutory 	language 	expressing 	public 	policy
that 	employees 	should 	be 	free: 	(1) 	to 	organize, 	join 	and
assist 	labor 	organizations; 	(2) 	to 	engage 	in 	collective
bargaining 	through 	their 	chosen 	representatives; 	and 	(3) 	"
engage 	in 	other 	concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection."
There 	then 	followed 	section 	7(a) 	of 	the 	National 	Industrial
Recovery Act 	(48 	Stat. 	195, 	198), 	section 	7 	of 	the 	National
Labor 	Relations 	Act 	of 	1935 	(NLRA, 	the Wagner 	Act, 	49 	Stat.
449, 	452), 	and 	section 	7 	of 	the 	Labor Management 	Relations 	Act
of 	1947 	(LMRA, 	the 	Taft-Hartley Act, 	61 	Stat. 	136, 	140, 	29
U.S.C. 	sec. 	157), 	all 	of 	which 	set 	forth 	in 	identical 	statutory
. language 	in 	granting 	to 	employees 	these 	same 	three 	rights:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection, 	and 	shall 	also 	have 	the 	right 	to
refrain 	from 	any 	or 	all 	of 	such 	activities
except 	to 	the 	extent 	that 	such 	right 	may 	be
affected 	by 	an 	agreement 	requiring
membership 	in 	a 	labor 	organization 	as 	a
condition 	of 	employment 	as 	authorized 	in
section 	158(a)(3) 	of 	this 	title.
(29 	u.s.c. 	sec. 	157; 	July 	5, 	1935, 	ch. 	372,
sec. 	7, 	49 	Stat. 	452; 	June 	23, 	1947,
ch. 	120, 	tit. 	1, 	sec. 	101, 	61 	Stat. 	140;
emphasis 	added.)
39

These 	employee 	section 	7 	rights 	"to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection" 	were 	then--and 	are 	now--protected
under 	the 	NLRA 	by 	section 	8(a)(l) 	which 	provides:
(a) 	It 	shall 	be 	an 	unfair 	practice 	for 	an
employer 	. 	. 	.
(1) 	to 	interfere with, 	restrain, 	or 	coerce
employees 	in 	the 	exercise 	of 	the 	rights
guaranteed 	in 	section 	157 	of 	this
title; 	. 	(29 	u.s.c. 	sec. 	158(a)(l);
49 	Stat. 	452, 	ch. 	372, 	sec. 	8).
In 	1937, 	the 	California 	Legislature 	enacted 	chapter 	1,
"Contracts 	Against 	Public 	Policy," 	of 	part 	3 	(Privileges 	and
Immunities), 	division 	2 	of 	the 	Labor 	Code. 	Within 	chapter 	1
was- 	and 	is--Labor 	Code 	section 	923 	which 	covered 	the 	three
sets 	of 	rights 	which 	had 	been 	granted 	to 	employees 	under 	the
NLRA 	(i.e., 	organize 	and 	join 	labor 	organizations, 	collectively
bargain 	through 	chosen 	representatives, 	and 	engage 	in 	other
concerted 	activities 	for 	the 	purpose 	of 	collective 	bargaining
or 	mutual 	aid 	or 	protection):
In 	the 	interpretation 	and 	application 	of
this 	chapter, 	the 	public 	policy 	of 	this
State 	is 	declared 	as 	follows:
Negotiation 	of 	terms 	and 	conditions 	of 	labor
should 	result 	from 	voluntary 	agreement
between 	employer 	and 	employees.
Governmental 	authority 	has 	permitted 	and
encouraged 	employers 	to 	organize 	in 	the
corporate 	and 	other 	forms 	of 	capitol
control. 	In dealing 	with 	such 	employers,
the 	individual 	unorganized 	worker 	is
helpless 	to 	exercise 	actual 	liberty 	of
contract 	and 	to 	protect 	his 	freedom 	of
labor, 	and 	thereby 	to 	obtain 	acceptable
terms 	and 	conditions 	of 	employment.
Therefore 	it 	is 	necessary 	that 	the
40

individual 	workman 	have 	full 	freedom 	of
association, 	self-organization, 	and
designation 	of 	representatives 	of 	his 	own
choosing, 	to 	negotiate 	the 	terms 	and
conditions 	of 	his 	employment, 	and 	that 	he
shall 	be 	free 	from 	the 	interference,
restraint, 	or 	coercion 	of 	employers 	of
labor, 	or 	their 	agents, 	in 	his 	designation
of 	such 	representatives 	or 	in
self-organization 	or 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Lab. 	Code 1 	sec. 	923; 	Stat.
19371 	ch. 	90, 	emphasis 	added.)
The 	aforesaid 	"other 	concerted 	activities" 	which 	employees
had 	the 	right 	to 	engage 	in 	"for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or 	protection" 	were 	held 	to 	mean
and 	include 	strikes, 6 picketing, 	and 	boycotts. 	(United Auto
Workers 	v. 	O'Brien .(1950) 	339 	U.S. 454, 	456.,,-457; 	Amalgamated
Association 	of 	Street, 	Electric 	Railway 	& Motor 	Coach
Employees 	v. 	Wisconsin 	Employment 	Relations 	Board 	(1951)
340 	U.S. 	383, 	389-390; 	James 	v. 	Marinship 	Corp. 	(1944)
25 	Cal.2d 	721, 	728-729; 	Park 	& Tilford 	Import 	Corp. 	v.
International 	Brotherhood 	of 	Teamsters 	(1946) 	27 	Cal.2d 	599,
603-613; 	and 	G. 	C. 	Breidert 	Co. 	v. 	Sheet 	Metal 	Workers
International 	Association 	(1956) 	139 	Cal.App.2d 	633, 	638 	639,
6strikes 	within 	the 	meaning 	of 	"other 	concerted
a 	ivities'' 	include 	"economic 	strikes" 	in 	connection with
collective 	bargaining, 	"sympathy 	strikes," 	and 	strikes 	in
response 	to 	an 	employer's 	unfair 	labor 	practices, 	the 	so-called
"unfair 	practice 	strikes." 	( 	v. 	Peter 	Cailler 	Hohler 	Swiss
Chocolate 	Co. 	(2nd 	Cir. 	1942) 	130 	F.2d 	503 	[10 	LRRM 	852,
854-855]; 	v. 	City Yellow 	Cab 	Co. 	(6th 	Cir. 	1965) 	344 	F.2d
578 	[59 	LRRM 	20011 	2006]; 	v. 	Louisville 	Chair 	Co.
(6th 	Cir. 	1967) 	385 	F.2d 	922 	[66 	LRRM 	2698, 	2703], 	cert. 	den.
390 	U.S. 	1013.)
41

hg. 	den.) 	Addressing 	this 	particular 	provision 	in 	United 	Auto
Workers 	v. 	O'Brien, 	supra, 	339 	U.S. 	454 	at 	456-457, 	the 	U.S.
Supreme 	Court 	held:
In 	the 	National 	Labor 	Relations 	Act 	of 	1935,
49 	Stat. 	449, 	ch. 	372, 	29 	U.S.C.A. 	sec. 	151,
as 	amended 	by 	the 	Labor-Management 	Relations
Act 	of 	1947, 	61 	Stat. 	136, 	ch. 	120,
29 	U.S.C.A. 	sec. 	141, 	Congress 	safeguarded
the 	exercise 	by 	employees 	of 	"concerted
activities" 	and 	expressly 	recognized 	the
right 	to 	strike.
And 	as 	succinctly 	set 	forth 	in 	v. 	Sheet
Metal 	Workers 	International 	Association, 	supra, 	139 	Cal.App.2d
633 	at 	638-639:
Section 	7 	of 	the 	National 	Labor 	Relations
Act, 	as 	amended 	by 	the 	Labor 	Management
Relations 	Act 	provides 	that, 	"Employees
shall 	have 	the 	right 	... 	to 	engage 	in
... 	concerted 	activities 	for 	the 	purpose
of 	collective 	bargaining 	or 	other 	mutual 	aid
or 	protection. 	. 	"
These 	"concerted 	activities" 	protected 	by
Section 	7 	of 	the 	Federal 	Act 	clearly 	include
the 	right 	to 	strike, 	peacefully 	picket, 	and
boycott 	for 	purposes 	and 	by 	methods 	not
prohibited 	by 	Section 	8. 	{Federal
citations.)
California 	appellate 	decisions 	have 	consistently 	held 	that
Labor 	Code 	section 	923's 	provisions--including 	the 	"other
concerted 	activities" 	proviso--codi 	and 	prescribe 	the 	public
policy 	toward, 	the 	rights 	of, 	and 	the 	concomitant 	protections
for 	employees 	in 	California's :i;u;:jvate 	sector 	(C. 	S. 	Smith
Metropolitan Market 	Co. 	v. 	Lyons 	{1940) 	16 	Cal.2d 	389, 	400;
Park 	& Tilford 	Import 	Corp. 	v. 	International 	Brotherhood 	of
Teamsters, 	supra, 	27 	Cal.2d 	599, 	603-613; 	In 	re 	Porterfield
42

(1946) 	28 	Cal.2d 	91, 	115 	118; 	Adams 	v. 	Wolff 	(1948)
84 	Cal.App.2d 	435, 	443, 	hg. 	den.; 	City 	of 	Los 	Angeles 	v.
Los 	Angeles 	Building 	and 	Construction 	Trades 	Council 	(1949)
94 	Cal.App.2d 	36, 	45, 	hg. 	den.; 	Elsis 	v. 	Evans 	(1958)
157 	Cal.App.2d 	399, 	408-409, 	hg. 	den.; 	v. 	Regents 	of
(1958) 	160 	Cal.App.2d 	640, 	647;
Los 	Angeles 	Metropolitan 	Transit 	Authority 	v. 	Brotherhood 	of
Railroad 	Trainmen, 	supra, 	54 	Cal.2d 	684, 	687-689; 	v.
Clearman's 	Golden 	Cock 	Inn 	(1961) 	192 	Cal.App.2d 	793, 	795-798,
hg. 	den.; 	Schwartz-Torrance 	Investment 	Corp. 	v.
Confectionery Workers' 	Union 	(1964) 	61 	Cal.2d 	766, 	769, 	cert.
den. 	380 	U.S. 	906; 	Annenberg 	v. 	Southern 	California 	District
Council 	of 	Laborers 	(1974) 	38 	Cal.App.3d 	637, 	644, 	646;
v. 	Producers 	Guild 	of 	America, 	Inc. 	(1974) 	40 	Cal.App.ad
233, 	246-247; 	v. 	Marshburn 	Brothers 	(1975)
48 	Cal.App.3d 	472, 	481-482; 	Service 	Employees 	International
Union 	v. 	Bollywood 	Park, 	Inc. 	(1983) 	149 	Cal.App.3d 	745,
759-760).
California 	appellate 	decisions 	have 	also 	consistently 	held
that 	Labor 	Code 	section 	923's 	provisions 	do 	not 	apply 	to 	public
employees 	in 	Califo 	a's 	public 	sector. 	(Nutter 	v.
Santa 	Monica 7 (1946) 	74 	Cal.App.2d 	292, 	296-303, 	hg. 	den.;
7This 	1946 	case 	dealing 	with 	Labor 	Code 	section 	923
involved 	an 	unsuccessful 	attempt 	by 	the 	Brotherhood 	of 	Railroad
Trainmen 	to 	require 	the 	City 	of 	Santa 	Monica 	to 	negotiate 	a
contract 	concerning 	the 	rms 	and 	conditions 	of 	employment 	of
43

Adams 	v. 	Wolff, 	supra, 	84 	Cal.App.2d 	435, 	443; 	City 	of
Los 	Angeles 	v. 	Los 	Angeles 	Building 	and 	Construction 	Trades
Council, 	=-=~=• 	94 	Cal.App.2d 	36, 	45; 	State 	of 	California 	v.
Brotherhood 	of 	Railroad 	Trainmen 	(1951) 	37 	Cal.2d 	412, 	417;
Newmarker 	v. 	Regents 	of 	the 	University 	of 	Cali£ornia, 	supra,
160 	Cal.App.2d 	640, 	647; 	Professional 	Fire 	Fighters, 	Inc. 	v.
City 	of 	Los 	Angeles 	(1963) 	60 	Cal.2d 	276, 	294; 	Berkeley
Teachers 	Association 	v.
School 	District 	(1967) 	254 	Cal.App.2d 	660, 	671 	672, 	hg. 	den.)
the 	city's 	bus 	operators. 	See 	the 	subsequent 	1960 	decision 	in
Los 	Angeles 	Metropolitan 	Transit 	Authority 	v. 	Brotherhood 	of
Railroad 	Trainmen, 	supra, 	54 	Cal.2d 	684, 	post, 	involving 	the
1957 	Los 	Angeles 	Metropolitan 	Transit 	Authority Act.
In 	the 	twenty-year 	period 	preceding 	enactment 	of 	EERA, 	1955
to 	1975, 	the 	Legislature 	adopted 	no 	less 	than 	twenty-two 	(22)
public 	employer-employee 	relations 	acts. 	These 	acts 	included 	a
wide 	range 	of 	labor 	relations 	provisions, 	and 	demonstrate 	that
the 	Legislature 	knows 	the 	language 	to 	use 	when 	it 	wants 	to
confer 	a 	right 	to 	strike 	on 	public 	employees.
In 	1955, 	the 	Legislature 	enacted 	the 	Transit 	District 	Law
(Stats. 	1955, 	ch. 	1036; 	Pub. 	Util. 	Code, 	secs. 	24501-27509)
authorizing 	a 	two-county 	transit 	district 	to 	meet 	a
transit 	problem 	in Alameda 	and 	Contra 	Costa 	counties. 	Existing
public 	and 	private 	transportation 	facilities 	in 	the 	two
counties 	could 	be 	acquired 	by 	the 	public 	transit 	district 	with
"special 	provisions 	relating 	to" 	such 	transfers 	"and 	to 	the
44

employees 	of 	these 	facilities." 	(Pub. 	Util. 	Code, 	sec. 	24561;
Behneman 	v. 	Alameda-Contra 	Costa 	Transit 	District 	(1960)
182 	Cal.App.2d 	687, 	692, 	hg. 	den.)
In 	this 	transit 	district 	law, 	dealing 	with 	the 	acquisition
of 	the 	facilities 	of 	existing 	public 	and 	privately 	owned
utilities, 	the 	Legislature 	set 	up 	a 	statutory 	scheme 	of 	labor
relations 	providing 	for 	the 	transit 	district 	board's 	adoption
of 	a 	personnel 	system 	including 	the 	establishment 	of 	positions
along 	with 	salary 	and 	wage 	schedules 	for 	the 	public 	and 	private
transportation 	employees 	of 	the 	facilities 	acquired. 	The 	law
also 	provides 	for 	employee 	representation 	by 	a 	labor
organization 	and 	for 	negotiations 	between 	such 	a 	labor
organization 	and 	the 	transit 	district 	board 	"to 	reach 	agreement
on 	the 	terms 	of 	a 	written 	contract 	governing 	wages, 	salaries,
hours, 	working 	conditions 	and 	grievance 	procedures," 	and 	for
mutually-agreed-to 	"binding 	interest 	arbitration" 	on 	matters
the 	parties 	are 	unable 	to 	resolve. 	(Pub. 	Util. 	Code, 	secs.
24886, 	25051-25053; 	Grier 	v. 	Alameda-Contra 	Costa 	Transit
District 	{1976) 	55 	Cal.App.3d 	325, 	331-332, 	hg. 	den.; 	and 	see
Stockton Metropolitan 	Transit 	District 	v. 	Amalgamated 	Transit
Union 	(1982) 	132 	Cal.App.3d 	203, 	207, 	210, 	213-214, 	hg. 	den.)
Significantly, 	there 	is 	no 	provision 	in 	this 	transit 	district
law 	authorizing 	the 	employees 	to 	engage 	"in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection." 	(See 	Pub. 	Util. 	Code, 	secs.
25051-25053.)
45

Two 	years 	later, 	in 	1957, 	the 	Legislature 	enacted 	two
additional 	public 	transit 	district 	acts. 	The 	first 	of 	these
was 	the 	Los 	Angeles 	Metropolitan 	Transit 	Authority Act 	of 	1957
(Stats. 	1957, 	ch. 	547; 	Pub. 	Util. 	Code, 	appen. 	1, 	secs.
1.1-13.1) 	which 	provided 	for 	a 	"public 	corporatiori" 	transit
authority 	to 	operate 	transportation 	facilities 	in 	four 	southern
California 	counties. 	The 	two 	principal 	transit 	companies 	in
the 	Los 	Angeles 	metropolitan 	area 	at 	the 	time 	were 	privately
owned 	public 	utilities 	with 	private 	employees 	who 	were
exclusively 	represented 	by 	the 	Brotherhood 	of 	Railroad 	Trainmen
and 	who 	had 	the 	right 	to 	strike 	under 	Labor 	Code 	section 	923.
In 	section 	3.6(c) 	of 	the 	Los 	Angeles 	Act, 	the 	Legislature
prescribed 	the 	following 	rights 	for 	the 	employees:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	. 	. 	. 	(Emphasis 	added.)
The 	Act 	also 	provided 	for 	a 	civil 	service 	system,
representational 	elections, 	collective 	bargaining, 	and
mutually-agreed-to 	binding 	arbitration 	for 	unresolved
disputes. 	(Secs. 	3.6, 	4.24.)
After 	the 	transit 	authority 	acquired 	the 	privately owned
transit 	companies 	and 	their 	employees, 	it 	brought 	a 	declaratory
relief 	action 	to 	obtain 	a 	judgment 	that 	the 	employees 	did 	not
have 	the 	right 	to 	strike 	because 	they were 	now 	public 	employees
46

of 	a 	public 	employer. 	The 	trial 	court 	so 	held, 	and 	the
Brotherhood 	of 	Railroad 	Trainmen 	appealed. 	Thus 	came 	to 	the
Supreme 	Court 	the 	issue 	of 	whether 	the 	Legislature 	had
statutorily 	authorized 	and 	granted 	to 	the public 	employees 	of
the 	Los 	Angeles 	Metropolitan 	Transit 	Authority 	the 	right 	to
strike, 	and 	in 	its 	1960 	decision 	in 	Los 	Angeles 	Metropolitan
Transit 	Authority 	v. 	Brotherhood 	of 	Railroad 	Trainmen, 	supra,
54 	Cal.2d 	684, 	our 	Supreme 	Court 	def 	tively 	held 	that 	the
Legislature 	had 	statutorily 	granted 	these 	public 	employees 	the
right 	to 	strike:
In 	the 	absence 	of 	legislative 	authorization
public 	employees 	in 	general 	do 	not 	have 	the
right 	to 	strike 	(see 	31 	A.L.R.2d 	1142,
1159-1161), 	and 	the 	questions 	presented 	here
are 	whether 	the 	act 	creating 	the 	transit
authority 	gave 	its 	employees 	such 	a
right ....
Subdivision 	(c) 	of 	section 	3.6 	of 	the 	act
provides: 	"Employees 	shall 	have 	the 	right
to 	self-organization, 	to 	form, 	join 	or
assist 	labor 	organizations, 	to 	bargain
collectively 	through 	representatives 	of
their 	own 	choosing, 	and 	to 	engage
concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	aid 	or
protection .... Notwithstanding 	any 	other
provision 	of 	this 	act ... the
authority ... shall 	enter 	into 	a 	written
contract 	with 	the 	accredited 	representative
of 	its 	employees 	governing 	wages, 	salaries,
hours 	and 	working 	conditions .... " 	(Italics
added.)
Language 	identical 	with 	the 	italicized words
of 	subdivision 	(c) 	first 	appeared 	in 	section
2 	of 	the 	Norris-LaGuardia 	Act 	(47 	Stat. 	70;
29 	u.s.c., 	sec. 	102), 	and 	it 	has 	been
contained 	in 	section 	923 	of 	our 	Labor 	Code
since 	1937. 	[Fn. 	omitted.] 	The 	identical
language 	was 	also 	used 	in 	section 	7(a) 	of
47

the 	National 	Industrial 	Recovery Act
(48 	Stat. 	195, 	198), 	section 	7 	of 	the
National 	Labor 	Relations 	Act 	of 	1935 	(the
Wagner 	Act, 	49 	Stat. 	449, 	452), 	and 	section
7 	of 	the 	Labor-Management 	Relations 	Act 	of
1947 	(the 	Taft-Hartley Act, 	61 	Stat. 	136,
140; 	29 	U.S.C., 	sec. 	157). 	The 	courts 	have
uniformly 	interpreted 	these 	words 	as
including 	the 	right 	to 	strike 	peacefully 	to
enforce 	union 	demands 	with 	respect 	to 	wages,
hours, 	and 	working 	conditions. 	(Weber 	v.
Anheuser-Busch, 	Inc. 	(1955) 	348 	U.S. 	468,
474-475; 	Amalgamated 	Association 	etc.
M.C.E. 	v. 	Wisconsin 	Employment 	Relations
Board 	(1951) 	340 	U.S. 	383, 	398;
International 	Union 	of 	United 	Automobile
etc. 	Workers 	of 	America 	v. 	O'Brien 	(1950)
339 	U.S. 	454, 	456-457; 	Collins 	Baking 	Co. 	v.
National 	Labor 	Relations 	Board, 	193 	F.2d
483, 	486; 	National 	Labor 	Relations 	Board 	v.
Peter 	Cailler 	Kohler 	Swiss 	Chocolates 	Co.,
130 	F.2d 	503, 	505; 	G.C. 	Breidert 	Co. 	v.
Sheet 	Metal 	etc. 	Association, 	139 	Cal.App.2d
633, 	638.) 	The 	cases 	have 	applied 	the
language 	to 	a 	number 	of 	specific 	stituations
and 	have 	determined 	that 	it 	includes 	other
activities 	as 	well 	as 	strikes 	but 	does 	not
sanction 	all 	collective 	conduct 	of
workingmen 	or 	all 	kinds 	of 	strikes; 	for
example, 	sit-down 	strikes 	have 	not 	been
included 	within 	the 	right 	to 	engage 	in 	other
concerted 	activities. 	(See 	International
Union 	of 	United 	Automobile 	etc. 	Workers 	of
America 	v. 	O'Brien 	(1950) 	339 	U.S. 	454,
457-459; 	International 	Union 	etc. 	A.F.L. 	v.
Wisconsin 	Employment 	Relations 	Board 	(1949)
336 	U.S. 	245, 	255 	et 	seq.; 	Park 	& T.I.
Corp. 	v. 	International 	etc. 	of 	Teamsters,
27 	Cal.2d 	599, 	604-605.)
When 	legislation 	has 	been 	judicially
construed 	and 	a 	subsequent 	statute 	on 	the
same 	or 	an 	analogus 	subject 	is 	framed 	in 	the
identical 	language, 	it 	will 	ordinarily 	be
presumed 	that 	the 	Legislature 	intended 	that
the 	language 	as 	used 	in 	the 	later 	enactment
would 	be 	given 	a 	like 	interpretation. 	This
rule 	is 	applicable 	to 	state 	statutes 	which
are 	patterned 	after 	federal 	statutes.
(Scripps 	etc. 	Hospital 	v. 	California 	Emp.
Com., 	24 	Cal.2d 	669, 	677; 	Holmes 	v.
48

Mccolgan, 	17 	Cal.2d 	426, 	430; 	Union 	Oil
Associates 	v. 	Johnson, 	2 	Cal.2d 	727, 	734.)
Although 	the 	cases 	which 	have 	interpreted
the 	italicized 	words 	involved 	private
employees, 	the 	act 	before 	us 	incorporates
the 	exact 	language, 	consisting 	of 	16 	words,
found 	in 	the 	earlier 	statutes, 	and 	it 	is
unlikely 	that 	the 	same 	words 	would 	have 	been
repeated 	without 	any 	qualification 	in 	a
later 	statute 	in 	the 	absence 	of 	an 	intent
that 	they 	be 	given 	the 	construction
previously 	adopted 	by 	the 	courts.
Terms 	such 	as 	"concerted 	activities" 	are
commonly 	used 	by 	courts 	as 	well 	as
legislative 	bodies 	to 	refer 	to 	strikes.
This 	court, 	for 	example, 	on 	a 	number 	of
occasions 	has 	used 	the 	words 	"concerted
action" 	as 	an 	inclusive 	term 	referring 	to
strikes, 	picketing 	and 	boycotts. 	(See,
e.g., 	Petri 	Cleaners 	Inc. 	v. 	Automotive
Employees 	etc., 	Local 	No. 	88, 	53 	Cal.2d 	455,
469 	et 	seq.; 	v.
International 	etc. 	of 	Teamsters, 	27 	Cal.2d
599, 	603; 	James 	v. 	Marinship 	Corp.,
25 	Cal.2d 	721, 	729.) 	Our 	codes 	provide 	that
technical 	words 	and 	phrases, 	and 	others
which 	have 	acquired 	"a 	peculiar 	and
appropriate" 	meaning 	in 	law, 	are 	to 	be
construed 	according 	to 	such meaning. 	(Civ.
Code, 	sec. 	13; 	Code 	Civ. 	Proc., 	sec. 	16.)
(54 	Cal.2d 	684, 	at 	687-689, 	emphasis 	added
except 	the 	court's 	italizing 	of 	the 	"16
words" 	on 	page 	687.)
Significant 	too 	in 	the 	Los 	Angeles 	Metropolitan 	Transit
Authority decision 	is 	the Supreme 	Court's 	rejection 	of 	the
contention 	that 	the 	Legislature 	had 	engaged 	in 	discriminatory
classification 	by 	granting 	the 	transit 	authority's 	employees
the 	right 	to 	strike 	while 	statutorily withholding 	the 	right
from 	public 	employees 	of 	other 	transit 	systems:
The 	fact 	that 	statutes 	creating 	other
transit 	systems 	do 	not 	contain 	provisions
similar 	to 	the 	one 	involved 	here 	with
respect 	to 	the 	right 	to 	strike 	cannot 	be 	a
49

proper 	basis 	for 	a 	claim 	that 	subdivision
(c) 	is 	discriminatory. 	Section 	1.1 	of 	the
act 	provides 	that 	because 	of 	the 	"unique
problem" 	presented 	in 	the 	Los 	Angeles
metropolitan 	area 	and 	the 	facts 	and
circumstances 	relative 	to 	the 	establishment
of 	a 	mass 	rapid 	transit 	system 	there, 	the
adoption 	of 	a 	"special 	act" 	and 	the 	creation
of 	a 	"special 	authority" 	are 	required.
If 	any 	state 	of 	facts 	can 	reasonably 	be
conceived 	which 	would 	support 	a
classification made 	by 	the 	Legislature, 	the
existence 	of 	that 	state 	of 	facts 	is
presumed, 	and 	one 	who 	challenges 	the
classification 	has 	the 	burden 	of 	showing
that 	it 	is 	arbitrary. 	(State 	v. 	Industrial
Acc. 	Com., 	48 	Cal.2d 	365, 	371-372; 	City 	of
Walnut 	Creek v. 	Silveira, 	47 	Cal.2d 	804,
811.) 	The 	Legislature 	could 	have 	concluded
that 	conditions 	existing 	in 	the 	area
relating 	to 	the 	availability 	of 	transit
workers 	made 	it 	necessary 	to 	give
plaintiff's 	employees 	the 	right 	to 	strike 	in
order 	to 	obtain 	an 	experienced 	and 	efficient
working 	force. 	For 	example, 	at 	the 	time 	the
act 	was 	adopted 	in 	1957, 	transit 	service 	was
principally 	provided 	in 	the 	area 	by
privately-owned 	utilities 	whose 	employees
were 	represented 	by 	labor 	unions 	and 	had 	the
right 	to 	strike, 	and 	many 	of 	these 	employees
might 	have 	refused 	to 	work 	for 	plaintiff 	if
deprived 	of 	that 	right. 	The 	act
contemplated 	that 	plaintiff 	would 	acquire
such 	utilities 	and, 	as 	we 	have 	seen,
provided 	that 	their 	employees 	should 	not
suffer 	any 	loss 	of 	benefits. 	Plaintiff 	has
made 	no 	showing 	that 	the 	conditions 	which
exist 	with 	respect 	to 	other 	transit 	systems
are 	the 	same 	as 	those 	in 	the 	Los 	Angeles
area. 	(54 	Cal.2d 	at 	694.)
During 	the 	very 	same 	1957 	legislative 	session 	in which 	it
had 	enacted 	the 	Los 	Angeles 	Metropolitan 	Transit 	Authority Act,
the 	Legislature 	also 	enacted 	the 	San 	Francisco 	Bay Area 	Rapid
Transit 	District 	Act 	of 	1957 	("BART" 	Stats. 	1958, 	ch. 	1056;
50

Pub. 	Util. 	Code, 	secs. 	28500-29757) 	prescribing 	similar 	labor
provisions 	as 	those 	set 	forth 	in 	the 	1955 	Alameda-Contra 	Costa
Transit 	District 	Act 	(Pub. 	Util. 	Code, 	secs. 	24501-27509)
including: 	personnel 	system, 	representation 	by 	a 	labor
organization, 	collective 	bargaining, 	and 	mutually-agreed-to
binding 	interest 	arbitration 	(Pub. 	Util. 	Code, 	secs. 	28767,
28850-28855). 	There 	is, 	however, 	no 	provision 	in 	the 	1957 	BART
Act 	authorizing 	BART's 	employees 	to 	engage 	"in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection" 	(see 	particularly 	Pub. 	Util. 	Code,
sec. 	28852 	setting 	forth 	the 	employees' 	rights; 	and 	see
San 	Francisco 	Bay Area 	Rapid 	Transit 	District 	v. 	Superior 	Court
(1979) 	97 	Cal.App.3d 	153, 	157-165, 	hg. 	den.; 	Rae 	v. 	Bay Area
Rapid 	Transit 	Supervisory 	& Professional 	Association 	(1980)
114 	Cal.App.3d 	147, 	151-153).
In 	1959, 	in 	response 	to 	firefighters' 	concerns 	over 	having
been 	barred 	from 	organizing 	or 	even 	joining 	a 	labor
organization, 8 and 	against 	the 	statutory 	background 	of 	a
long-established 	public 	safety 	policy 	against 	any 	interruption
8see 	International 	Association 	of 	Fire 	Fighters, 	Local
No. 	1319, 	AFL-CIO 	v. 	City 	of 	Palo 	Alto 	(1963) 	60 	Cal.2d 	295,
300; 	International 	Association 	of 	Fire 	Fighters, 	Local
No. 	1396, 	AFL-CIO 	v. 	County 	of 	Merced 	(1962) 	204 	Cal.App.2d
387, 	390; 	Professional 	Fire 	Fighters, 	Inc. 	v. 	City 	of
Los 	Angeles, 	supra, 	60 	Cal.2d 	276, 	288-289, 	294; 	and 	see
Perez 	v. 	Board 	of 	Police 	Commissioners 	of 	the 	City 	of
Los 	Angeles 	(1947) 	78 	Cal.App.2d 	638, 	hearing 	denied.
51

or 	interference 	in 	the 	delivery 	of 	fire 	fighting 	services, 9
the 	Legislature 	enacted 	what 	has 	since 	been 	ref erred 	to 	as 	the
.Firefighters 	Act. 	(Stats. 	1959, 	ch. 	723; 	Lab. 	Code, 	secs.
1960-1963.) 	This 	act 	gave 	firefighters 	the 	right 	"to 	join 	any
bona 	fide 	labor 	organization 	of 	their 	own 	choice" 	(Lab. 	Code,
sec. 	1960), 	and 	the 	rights 	to 	form, 	organize 	join, 	and 	assist
labor 	organizations, 	to 	present 	grievances 	and 	recommendations
regarding 	wages, 	salaries, 	hours, 	and 	working 	conditions 	to
their 	public 	employer, 	and 	to 	discuss 	such 	matters 	with 	their
public 	employer 	through 	such 	labor 	organizations 	(Lab. 	Code,
sec. 	1962). 	However, 	no 	provision 	in 	the 	Firefighters 	Act
authorizes 	firefighters 	to 	engage 	"in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection," 	and 	the 	last 	section 	of 	the 	Act,
Labor 	Code 	section 	1963, 	states 	that 	the 	enactment 	of 	the
Firefighters 	Act 	"shall 	not 	be 	construed 	as 	making 	the
provisions 	of 	Section 	923 	of 	this 	code 	applicable 	to 	public
employees" 	(Lab. 	Code, 	sec. 	1963). 	Also, 	to 	make 	absolutely
certain 	that 	there 	was 	no 	confusion 	regarding 	the 	right 	of
firefighters 	to 	strike 	or 	observe 	a 	picket 	line, 	the 	act
expressly 	states 	that 	firefighters 	shall 	not 	have 	the 	right 	to
"strike, 	or 	to 	recognize 	a 	picket 	line 	of 	a 	labor 	organization
9see 	Penal 	Code 	section 	148.2, 	subdivisions 	(1) 	and 	(4)
(former 	Pen. 	Code, 	sec. 	385 	enacted 	in 	1872 	and 	former 	Health
and 	Saf. 	Code, 	sec. 	13006 	(Stats. 	1939)); 	Public 	Resources
Code, 	section 	4165; 	and 	53 	Ops.Cal.Atty.Gen. 	324, 	326-327
(1970).
52

while 	in 	the 	course 	of 	the 	performance 	of 	their 	official
duties." 	(Lab. 	Code, 	sec. 	1962.) 10
In 	Professional 	Fire 	Fighters, 	Inc. 	v. 	City 	of 	Los 	Angeles,
supra, 	60 	Cal.2d 	276, 	the 	defendant 	City 	of 	Los 	Angeles
contended 	that 	the 	Firefighters 	Act 	was 	invalid 	in 	that 	it
singled 	out 	and 	treated 	firefighters 	differently 	from 	all 	other
public 	employees 	(60 	Cal.2d 	at 	288), 	to 	which 	our 	Supreme 	Court
responded:
In 	enacting 	the 	instant 	Labor 	Code 	sections
the 	Legislature 	undoubtedly 	had 	in 	mind 	many
logical 	distinctions 	between 	firefighters
and 	other 	public 	employees. 	By Government
Code 	sections 	3500-3509, 	inclusive, 	it
granted 	to 	all 	public 	employees 	the 	right 	to
join 	labor 	unions, 	but 	therein 	provided 	that
the 	employing 	agencies 	might 	except 	police
from 	the 	operation 	of 	the 	statute. 	No 	one
can 	doubt 	that 	the 	denial 	of 	the 	overall
'benefits 	to 	the 	police 	was 	a 	reasonable
denial 	of 	benefits 	and 	privileges 	to 	a 	class
of 	persons 	charged 	with 	duties 	which 	might
be 	inimicable 	to 	union 	membership. 	At 	the
same 	time 	the 	Legislature 	stated 	(Gov. 	Code,
sec. 	3508) 	that 	firefighters 	should 	not 	be
subject 	to 	the 	same 	exceptions 	as 	provided
in 	the 	case 	of 	police. 	Realizing 	that 	the
duties 	of 	firefighters 	differed 	sufficiently
lOwith 	respect 	to 	the 	Legislature 	preventing
firefighters' 	strikes 	and/or 	picketing 	from 	being 	labor
disputes 	or 	controversies, 	see 	53 	Ops.Cal.Atty.Gen. 	324,
325-327 	(1970); 	California 	Emergency 	Services 	Act 	(Gov. 	Code,
secs. 	8550-8668, 	former 	Cal. 	Disaster 	Act 	of 	1943); 	Military
and 	Veterans 	Code, 	section 	1505.
53

from 	those 	of 	public 	employees 	in 	general,
and 	yet 	not 	sufficiently 	to 	except 	them 	in
toto 	from 	the 	benefit 	of 	organization, 	the
Legislature 	set 	forth 	their 	rights 	and
obligations 	in 	a 	similar 	(but 	slightly
different) 	legislative 	enactment 	(Lab. 	Code,
secs. 	1960 	1963). 	It 	cannot 	be 	said 	that
the 	distinctions 	therein 	are 	any 	more
arbitrary 	or 	without 	reasonable 	basis 	than
the 	many 	other 	legislative 	distinctions
predicated 	upon 	specific 	occupations.
(60 	Cal.2d 	at 	289.)
In 	1961, 	the 	Legislature 	enacted 	the 	George 	Brown Act
(Stats. 	1961, 	ch. 	1964; 	Gov. 	Code, 	secs. 	3500-3509 11 ) 	which
authorized 	local 	public 	employees 	"to 	form, 	join, 	and
participate 	in 	the 	activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of 	representation 	on 	all
matters 	of 	employer-employee 	relations~· 	(Gov. 	Code, 	sec .. 3502},
including 	having 	such 	organizations 	represent 	them 	in
conferring 	with 	local 	governing 	bodies 	as 	to 	the 	terms 	and
conditions 	of 	their 	employment 	(Gov. 	Code, 	secs. 	3504, 	3505;
Glendale 	City Employees' 	Association, 	Inc. 	v. 	City 	of 	Glendale,
supra, 	15 	Cal.3d 	328, 	331; 	Los 	Angeles 	County Employees
Association 	v. 	County 	of 	Los 	Angeles, 	supra, 	168 	Cal.App.3d
685, 	687). 	Government 	Code 	section 	3502, 	which 	prescribes 	the
llThe 	George 	Brown Act 	was 	amended 	and 	expanded 	in 	1968
and 	then 	became 	known 	as 	the Meyers-Milias-Brown Act 	(MMBA)
(Stats. 	1968, 	ch. 	1390; 	Gov. 	Code, 	secs. 	3500-3510). 	See
discussion 	post. 	The 	primary 	change 	in 	1968 	was 	the
legislative 	authorization 	for 	local 	public 	labor 	and 	management
representatives 	"not 	only 	to 	confer 	but 	to 	enter 	into 	written
agreements 	for 	presentation 	to 	the 	governing 	body." 	(Glendale
City Employees' 	Association, 	Inc. 	v. 	City 	of 	Glendale 	(1975)
15 	Cal.3d 	328, 	331; 	Los 	Angeles 	County Employees 	Association 	v.
County 	of 	Los 	Angeles 	(1985) 	168 	Cal.App.3d 	683, 	687, 	hg. 	den.)
54

rights 	granted 	to 	local 	public 	employees 	(and 	which 	rights 	are
protected 	by 	Gov. 	Code, 	sec. 	3506), 	does 	not 	include 	the 	right
to 	engage 	"in 	other 	concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection." 	The
last 	section 	of 	the 	act, 	Government 	Code 	section 	3509, 	declared
that 	its 	enactment 	"shall 	not 	be 	construed 	as 	making 	the
provisions 	of 	Section 	923 	of 	the 	Labor 	Code 	applicable 	to
public 	employees." 	Lastly, 	Government 	Code 	section 	3508
authorized 	the 	governing 	body 	of 	a 	public 	agency 	to 	limit 	or
prohibit 	the 	right 	of 	law enforcement 	employees 	to 	form, 	join
or 	participate 	in 	employee 	organizations 	where 	it 	is 	in 	the
public 	interest 	to 	do 	so, 	but 	exempted 	therefrom 	employees
(firefighters) 	who 	were 	subject 	to 	the 	provisions 	of 	Labor 	Code
sections 	1960-1964 	(Gov. 	Code, 	sec. 	3508; 	Professional 	Fire.
Fighters, 	Inc. 	v. 	City 	of 	Los 	Angeles, 	supra, 	60 	Cal.2d 	276,
289).
In 	1961, 	the 	Legislature 	also 	enacted 	the 	Fresno
Metropolitan 	Transit 	District 	Act 	of 	1961 	(Stats. 	1961, 	ch.
1932; 	Pub. 	Util. 	Code, 	appen. 	2, 	secs. 	1-11) 	to 	provide 	a
transit 	district 	for 	the 	City 	of 	Fresno 	and 	parts 	of 	Fresno
County. 	Section 	4.1 	of 	the 	1961 	act 	provided 	certain 	rights
for 	employees 	of 	a 	public 	or 	private 	utility 	acquired 	by 	the
transit 	district, 	but 	did 	not 	grant 	such 	employees 	the 	right 	to
engage 	"in 	other 	concerted 	activities 	for 	the 	purpose 	of
55

1collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection. 112
In 	1963, 	the 	Legislature 	enacted 	the 	Stockton Metropolitan
Transit 	District 	Act 	of 	1963 	(Stats. 	1963), 	ch. 	839; 	Pub. 	Util.
Code, 	secs. 	50000-50507) 	to 	provide 	a 	transit 	district 	for 	the
San 	Joaquin 	County metropolitan 	area. 	In 	its 	labor 	provisions,
the 	Stockton 	Act 	provides 	for 	a 	personnel 	system 	for 	the
employees 	including 	accrued 	credits 	for 	employees 	of 	a 	public
utility 	acquired 	by 	the 	district 	(Pub. 	Util. 	Code, 	sec. 	50122),
and 	that 	when 	a 	majority 	of 	employees 	are 	represented 	by 	a
labor 	organization, 	then 	the 	transit 	district 	and 	the 	labor
organization 	are 	to 	engage 	in 	collective 	barga 	ng, 	with
mandatory 	binding 	interest 	arbitration 	on 	unresolved 	disputes
(Pub. 	Util. 	Code, 	sec. 	50120; 	Stockton Metropolitan 	Transit
v. 	Amalgamated 	Transit 	Union, 	Local 	276, 	AFL-CIO,
supra, 	132 	Cal.App.3d 	203, 	206-207, 	210, 	214). 	The 	Stockton
Act 	does 	not 	grant 	the 	employees 	the 	right 	to 	engage 	"in 	other
concerted 	activities 	for 	the 	purpose 	of 	collective 	bargaining
or 	other 	mutual 	aid 	or 	protection."
In 	the 	First 	Extraordinary 	Session 	of 	1964, 	the 	Legislature
enacted 	three 	acts 	involving 	public 	employees 	and 	labor
relations. 	The 	first 	of 	these 	1964 	acts 	was 	the
12The 	Fresno 	Act 	was 	amended 	in 	1971, 	post, 	and 	the
Legislature 	at 	that 	time 	specifically granted 	the 	district's
employees 	the 	right 	to 	engage 	"in 	other 	concerted 	activities
for 	the 	purpose 	of 	collective 	bargaining 	or 	other 	mutual 	aid 	or
protection." 	(Stats. 	1971, 	ch. 	1335; 	Pub. 	Util. 	Code,
appen. 	1, 	sec. 	4.1.)
56

California 	Rapid 	Transit 	District 	Act 	(Stats. 	1st 	Ex. 	Sess.
1964, 	ch. 	62; 	Pub. 	Util. 	Code, 	secs. 	30000-31520) 	providing 	for
an 	enlarged 	rapid 	transit 	district 	in 	the 	Los 	Angeles 	area 	and
for 	the 	inclusion 	and 	merger 	of 	the 	Los 	Angeles 	Metropolitan
Transit 	District 	(Stats. 	1957, 	ch. 	547; 	Los 	Angeles
Metropolitan 	Transit 	Authority 	v. 	Brotherhood 	of 	Railroad
Trainmen, 	supra, 	54 	Cal.2d 	684, 	687) 	into 	the 	new 	district
(Pub. 	Util. 	Code, 	secs. 	31000-31005, 	30750(b)). 	This 	new
Southern 	California 	Act 	provided 	for: 	a 	personnel 	system 	for
positions 	not 	represented 	by 	a 	labor 	organization 	(Pub. 	Util.
Code, 	sec. 	30257), 	for 	assumption 	of 	all 	existing 	labor
contracts 	upon 	acquisition 	of 	the 	Los 	Angeles 	Metropolitan
Transit 	District 	(Pub. 	Util. 	Code, 	sec. 	30750(b)), 	collective
bargaining 	(Pub. 	Util. 	Code, 	secs. 	30750(a) 	and 	(c), 	30755),
mutually-agreed-to 	binding 	arbitration 	(Pub. 	Util. 	Code, 	sec.
30750(d)) 	and, 	if 	no 	mutual 	agreement, 	referral 	to 	the 	State
Conciliation 	Service, 	followed 	by 	a 	fact-finding 	commission 	for
30 	days, 	th 	a 	final 	fact-finding 	report 	to 	the 	Governor 	and 	a
30-day 	''cooling 	off" 	period 	thereafter 	(Pub. 	Util. 	Code, 	sec.
30756 13 ). 	Public 	Utilities 	Code 	section 	30755 	prescribes:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
13Public 	Utility 	Code 	section 	30756 	was 	amended 	in 	1974
(Stats. 	1974, 	ch. 	51) 	to 	provide 	for 	a 	60-day 	fact-finding
period, 	with 	the 	final 	report 	to 	the 	Governor 	followed 	by 	a
10-day 	"cooling 	off" 	period.
57

choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection." 	(Emphasis 	added.)
The 	second 	1964 	act 	was 	the 	Marin 	County Transit 	District
Act 	of 	1964 	(Stats. 	1st 	Ex. 	Sess. 	1964, 	ch. 	92; 	Pub. 	Util.
Code, 	secs. 	70000-80019) 	involving 	a 	transit 	district 	for 	Marin
County. 	Public 	Utilities 	Code 	section 	70120 	of 	the 	Marin Act
states:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Emphasis 	added.)
The 	Marin Act 	further 	provides 	for 	mutually-agreed-to 	binding
arbitration 	in 	case 	of 	unresolved 	disputes 	and, 	if 	no 	such
mutual 	agreement, 	referral 	to 	the 	State 	Conciliation 	Service,
followed 	by 	a 	fact-finding 	commission. for 	30 	days, 	with 	a 	final
fact-finding 	report 	to 	the 	Governor 	and 	a 	30-day 	"cooling 	off"
period 	thereafter 	(Pub. 	Util. 	Code, 	sec. 	70120).
The 	third 	1964 	act 	was 	the 	West 	Bay 	Rapid 	Transit 	Authority
Act 	(Stats. 	1st 	Ex. 	Sess. 	1964, 	ch. 	104; 	Pub. 	Util. 	Code,
appen. 	2, 	secs. 	1.1-14.3) 	to 	provide 	for 	an 	interurban 	rapid
transit 	system 	in 	the 	County 	of 	San Mateo. 	In 	its 	labor
provisions, 	the 	West 	Bay Act 	provides 	for 	a 	personnel 	system
for 	the 	employees 	(secs. 	13.90(a), 	13.97), 	for 	accrued 	credits
for 	employees 	of 	an 	acquired 	public 	utility 	(sec. 	13.92), 	and
that 	when 	a 	majority 	of 	employees 	choose 	to 	be 	represented 	by 	a
58

labor 	organization, 	then 	the 	transit 	authority 	and 	the 	labor
organization 	are 	to 	engage 	in 	collective 	bargaining 	(sec.
l3.90(a)), 	with 	mutually-agreed-to 	binding 	arbitration 	on
unresolved 	disputes 	(sec. 	13.90(c)) 	and, 	if 	no 	such 	mutual
agreement, 	referral 	to 	the 	State 	Conciliation 	Service, 	followed
by 	a 	fact-finding 	commission 	for 	30 	days, 	with 	a 	final
fact-finding 	report 	to 	the 	Governor 	and 	a 	30-day 	"cooling 	off"
period 	thereafter 	(sec. 	13.96). 	Section 	13.95 	of 	the 	West 	Bay
Act 	prescribes 	the 	following 	employee 	rights:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Emphasis 	added.)
In 	1965, 	the 	Legislature 	enacted 	four 	acts 	involving 	public
employees 	and 	labor 	relations. 	The 	first 	1965 	act 	was 	the
Santa 	Barbara 	Metropolitan 	Transit 	District 	Act 	of 	1965 	(Stats.
1965, 	ch. 	1835; 	Pub. 	Util. 	Code, 	secs. 	95000-97100) 	enacted 	to
provide 	a 	single 	public 	transit 	district 	in 	Santa 	Barbara
County. 	In 	its 	labor 	provisions, 	the 	Santa 	Barbara 	Act
provides 	for 	a 	personnel 	system 	for 	the 	employees 	including
accrued 	sick 	leave, 	vacation 	and 	seniority 	credits 	for
employees 	of 	a 	public 	utility 	acquired 	by 	the 	district 	(Pub.
Util. 	Code, 	sec. 	95652), 	and 	that 	when 	a 	majority 	of 	the
employees 	choose 	to 	be 	represented 	by 	a 	labor 	organization,
then 	the 	transit 	board 	and 	the 	labor 	organization 	are 	to 	engage
in 	collective 	bargaining 	(Pub. 	Util. 	Code, 	sec. 	95650), 	with
59

mandatory 	binding 	arbitration 	on 	unresolved 	disputes 	(Pub.
Util. 	Code, 	sec. 	95650). 	The 	Santa 	Barbara 	Act 	does 	not 	grant
the 	employees 	the 	right 	to 	engage 	"in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection."
The 	second 	1965 	act 	enacted 	by 	the 	Legislature 	was 	the
Orange 	County 	Transit 	District 	Act 	of 	1965 	(Stats. 	1965,
ch. 	1899; 	Pub. 	Util. 	Code, 	secs. 	40000-40617) 	to 	provide 	for
an 	interim 	transit 	district 	in 	Orange 	County 	pending 	Orange
County's 	possible 	inclusion 	in 	the 	Southern 	California 	Rapid
Transit 	District 	(Pub. 	Util. 	Code, 	secs. 	40010, 	40600-40617).
Under 	its 	labor 	provisions, 	the 	Orange 	County Act 	does 	not
grant 	the 	employees 	the 	right 	to 	engage 	in 	"other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mututal 	aid 	of 	protection." 	The 	act does 	provide 	for 	employee
representation 	by 	labor 	organizations, 	for 	collective
bargaining 	and 	for 	binding 	arbitration 	in 	dispute 	resolution.
The 	1965 	enactment 	further 	provided 	that 	if 	binding 	arbitration
was 	not 	agreed 	to, 	then 	referral 	to 	the 	State 	Conciliation
Service, 	followed 	by 	the 	appointment 	of 	a 	fact-finding
commission 	by 	the 	Governor, 	a 	30-day 	fact-finding 	period, 	a
final 	fact-finding 	report 	to 	the 	Governor, 	and 	a 	30-day
"cooling 	off" 	period 	thereafter14 (Pub. 	Util. 	Code, 	sec.
14Public 	Utilities 	Code 	section 	40120 	was 	amended 	in 	1981
(Stats. 	1981, 	ch. 	493) 	to 	specify mutual 	agreement 	for 	binding
arbitration 	and 	to 	repeal 	the 	State 	Conciliation, 	fact-finding
report 	to 	the 	Governor, 	and 	30-d~i 	"cooling 	off" 	provisions.

40120; 	and 	see 	Stockton Metropolitan 	Transit 	District 	v.
Amalgamated 	Transit 	Union, 	Local 	276, 	AFL-CIO, 	supra,
132 	Cal.App.3d 	203, 	214). 	Public 	Utilities 	Code 	section 	40123
prescribes 	that 	the 	transit 	district 	is 	to 	assume 	and 	observe
all 	existing 	labor 	contracts 	of 	public 	utilities 	it 	acquires;
and 	sections 	40127 	and 	40130 	provide 	for 	a 	retirement 	system
under 	the 	Orange 	County 	Employees 	Retirement 	System 	if 	no
retirement 	system 	is 	bargained 	collectively.
The 	third 	1965 	enactment 	by 	the 	Legislature 	was 	the
San 	Diego 	County Transit 	District 	Act 	of 	1965 	(Stats. 	1965,
ch. 	2039; 	Pub. 	Util. 	Code, 	secs. 	90000-93017) 	to 	provide 	a
transit 	system covering 	the 	San 	Diego 	metropolitan 	area 	and
southern 	San 	Diego 	County 	(Pub. 	Util. 	Code, 	secs. 	90020,
90050). 	Public 	Utilities 	Code 	section 	90300(a) 	of 	the
San 	Diego 	Act 	prescribes:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Emphasis 	added.)
The 	San 	Diego 	Act 	further 	provides 	for 	mutually-agreed-to
binding 	arbitration 	to 	resolve 	disputes 	and, 	if 	no 	mutual
agreement, 	referral 	to 	the 	State 	Conciliation 	Service, 	followed
by 	a 	report 	to 	the 	Governor, 	appointment 	by 	the 	Governor 	of 	a
fact-finding 	commission within 	10 	days, 	a 	30-day 	period 	for
fact-finding, 	a 	final 	fact-finding 	report 	to 	the 	Governor 	and
then 	a 	30-day 	"cooling 	off'' 	period 	(Pub. 	Util. 	Code, 	sec.
61

90300(a)). 	The 	transit 	district 	is 	required 	to 	assume 	and
observe 	all 	existing 	labor 	contracts 	of 	any 	public 	utilities 	it
acquires, 	and 	accrued 	sick 	leave, 	vacation, 	seniority 	and
pension 	credits 	for 	employees 	of 	such 	acquired 	public 	utilities
(Pub. 	Util. 	Code, 	sec. 	90300(c)).
The 	fourth 	relevant 	1965 	legislative 	enactment 	was 	the
so 	called 	"Pre-Winton Act" 15 (Stats. 	1965, 	ch. 	2041) 	dealing
with 	employer-employee 	relations 	in 	the 	public 	school 	system,
and 	which 	added 	former 	Education 	Code 	sections 	13080 	through
13088 	to 	the 	Education 	Code. 	Education 	Code 	section 	13082
prescribed 	the 	following 	public 	school 	employee 	rights:
Except 	as 	otherwise 	provided 	by 	the
Legislature, 	public 	school 	employees 	shall
have 	the 	right 	to 	form, 	join 	and 	participate
in 	the 	activities 	of 	employee 	organizations
of 	their 	own choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also 	have 	the 	right 	to
refuse 	to 	join 	or 	participate 	in 	the
activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the 	public 	school 	employer.
This 	section 	did 	not 	grant 	public 	school 	employees 	the 	right 	to
engage 	in 	"other 	concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection."
Education 	Code 	section 	13086 	protected 	public 	school 	employees
15The 	1965 	enactment 	carried 	no 	common 	name 	designation,
but 	upon 	its 	amendment 	in 	1970, 	was 	designated 	the 	"Winton Act"
(Stats. 	1970, 	ch. 	1413, 	former 	Ed. 	Code, 	sec. 	13089).
62

in 	their 	exercise 	of 	rights 	granted 	under 	section 	13082. 	The
pre-Winton Act 	also 	provided 	that 	the 	public 	school 	employer
was 	to 	''meet 	and 	confer" 	with 	the 	employee 	representatives 	on
all 	matters 	relating 	to 	employment 	conditions, 	including 	wages,
hours 	and 	other 	terms 	and 	conditions 	of 	employment, 	as 	well 	as
conferring 	with 	representatives 	of 	certificated16 employees
on 	certain 	educational 	objectives 	(Ed. 	Code, 	secs. 	13084,
13085). 	Education 	Code 	section 	13085 	further 	provided 	that
when 	there 	was 	more 	than 	one 	employee 	organization 	representing
certificated 	employees, 	then 	there 	was 	to 	be 	a 	"negotiating
council" 	composed 	of 	representatives 	of 	the 	various
certificated 	employee 	organizations--in 	a 	proportioned
number--to 	"meet 	and 	confer" 	with 	the 	public 	school 	employer.
To 	"meet 	and 	confer" 	did 	not 	authorize 	collective 	bargaining
but 	afforded 	public 	school 	employees 	the 	right 	to 	voice 	their
views 	and 	concerns 	through 	recognized 	representatives 	and 	have
such 	views 	and 	ideas 	considered 	by 	the 	public 	school 	employer.
(Berkeley ·Teachers 	Association 	v. 	Board 	of 	Education 	of 	the
Berkeley Unified 	School 	District, 	supra, 	254 	Cal.App.2d 	660,
671-672; 	California 	Federation 	of 	Teachers, 	AFL-CIO 	v. 	Oxnard
Elementary 	Schools, 	supra, 	272 	Cal.App.2d 	514, 	523-525,
534-535, 	538-540; 	Westminster 	School 	District 	of 	Orange
16"certificated 	employees" 	are 	those 	public 	school
employees 	required 	by 	the 	Education 	Code 	to 	possess
certification 	(e.g., 	teachers) 	as 	opposed 	to 	noncertificated
personnel--the 	"classified" 	employees 	(e.g., 	clerical, 	bus
drivers, 	cafeteria 	employees, 	etc.).
63

County 	v. 	Superior 	Court 	& Westminster 	Teachers 	Association
(1972) 	28 	Cal.App.3d 	120, 	128, 	hg. 	den.) 	Lastly, 	Education
Code 	section 	13088prescribed 	that: 	"(t)he 	enactment 	of 	this
article 	shall 	not 	be 	construed 	as 	making 	the 	provisions 	of
Section 	923 	of 	the 	Labor 	Code 	applicable 	to 	public 	school
employees."
In 	1967, 	the 	Legislature 	enacted 	the 	Santa 	Cruz
Metropolitan 	Transit 	District 	Act 	of 	1967 	(Stats. 	1967,
ch. 	978; 	Pub. 	Util. 	Code, 	secs. 	98000-98407) 	to 	provide 	a
transit 	district 	for 	the 	Santa 	Cruz 	metropolitan 	area. 	In
its 	labor 	provisions, 	the 	Santa 	Cruz 	Act 	prescribes 	the
establishment 	of 	a 	civil 	service merit 	system 	for 	the
district's 	employees 	(Pub. 	Util. 	Code, 	sec. 	98160), 	and 	that
employees 	of 	an 	acquired 	public 	utility were 	to 	be 	given 	credit
for 	accrued 	sick 	leave 	and 	vacation 	credits, 	seniority, 	and
pension 	rights 	(Pub. 	Util. 	Code, 	secs. 	98163, 	98164). 	Public
Utilities 	Code 	section 	98162 	authorizes 	the 	district 	employees
to 	associate 	together 	in 	connection with 	their 	employment, 	and
to 	"designate 	representatives 	of 	their 	own 	choosing 	and
collectively 	or 	individually 	they may 	exercise 	their 	right 	of
petition 	to 	the 	transit 	district 	board 	concerning 	wages, 	hours,
or 	other 	conditions 	of 	employment." 	The 	Santa 	Cruz 	Act 	does
not 	grant 	the 	district's 	employees 	the 	right 	to 	engage 	"in
other 	concerted 	activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or 	protection."
In 	1968, 	the 	Legislature 	amended 	the 	local 	public 	employee
64

law 	(George 	Brown Act, 	Stats. 	1961, 	ch. 	1964; 	Gov. 	Code, 	secs.
3500-3509), 	with 	the 	amended 	act 	being 	designated 	the
Meyers-Milias-Brown Act 	(Stats. 	1968, 	ch. 	1390; 	Gov. 	Code,
secs. 	3500-3510). 	As 	amended 	in 	1968, 	the 	MMBA 	"authorized
labor 	and 	management 	representatives 	not 	only 	to 	confer 	but 	to
enter 	into 	written 	agreements 	for 	presentation 	to 	the 	governing
body 	of 	a 	municipal 	government 	or 	other 	local 	agency."
(Glendale 	City 	Employees' 	Association, 	Inc. 	v. 	City 	of
Glendale, 	supra, 	15 	Cal.3d 	328, 	331; 	Los 	Angeles 	County
Employees 	Association 	v. 	County 	of 	Los 	Angeles, 	supra,
168 	Cal.App.3d 	683, 	687; 	Chula 	Vista 	Police 	Officers'
Association 	v. 	Cole, 	City Manager 	(1980) 	107 	Cal.App.3d 	242,
247-248.) 	While 	authorizing 	collective 	bargaining 	for 	local
public 	employees, 	the 	amended MMBA does 	grant 	them 	the
right 	to 	engage 	"in 	other 	concerted 	activities 	for 	the 	purpose
of 	collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection"
(see 	Gov. 	Code, 	secs. 	3502, 	3505, 	3505.1; 	Stationery
Engineers 	v. 	San 	Juan 	Suburban Water 	District 	(1979)
90 	Cal.App.3d 	797, 	801), 	and 	Government 	Code 	section 	3509
proscribing 	the MMBA 	from 	being 	construed 	to 	give 	local 	public
employees 	Labor 	Code 	section 	923's 	rights 	and 	protections 	was
retained 	by 	the 	Legislature 	and 	not 	changed.
In 	1969, 	the 	Legislature 	enacted 	the 	Santa 	Clara 	County
Transit 	District 	Act 	of 	1969 	(Stats. 	1969, 	ch. 	180; 	Pub. 	Util.
Code, 	secs. 	100000-100500) 	to 	deal 	with 	public 	transit 	problems
in 	Santa 	Clara 	County. 	In 	its 	employee 	provisions, 	Public
65

Utilities 	Code 	section 	100300 	grants 	the 	following 	rights 	to
district 	employees:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Emphasis 	added.)
The 	Santa 	Clara 	Act 	provides 	for 	collective 	bargaining 	(Pub.
Util. 	Code, 	sec. 	100302), 	mediation 	from 	the 	State 	Conciliation
Service 	(Pub. 	Util. 	Code, 	sec. 	100304), 	mutually-agreed-to
binding 	arbitration, 	including 	"interest 	arbitration," 	for
dispute 	resolution 	(Pub. 	Util. 	Code, 	sec. 	100305) 	and, 	if 	no
such 	mutual 	agreement, 	referral 	to 	the 	State 	Conciliation
Service, 	then 	to 	the 	Governor 	for 	appointment 	of 	a 	fact-finding
commission 	within 	10 	days, 	a 	30-day 	period 	for 	fact-finding,
then 	a 	final 	fact-finding 	report 	to 	the 	Governor 	followed 	by 	a
30-day 	"cooling 	off" 	period 	(Pub. 	Util. 	Code, 	sec. 	100306).
Public 	Utilities 	Code 	section 	100350 	further 	prescribes 	that
the 	transit 	district 	shall 	assume 	and 	observe 	all 	existing
labor 	contracts 	of 	any 	public 	utilities 	it 	acquires.
In 	1971, 	the 	Legislature 	enacted 	two 	acts 	involving 	public
employees 	and 	labor 	relations 	and 	amended 	a 	third 	such 	act.
The 	first 	of 	these 	1971 	acts 	was 	the 	Greater 	Bakersfield
Metropolitan 	Transit 	District 	Act 17 (Stats. 	1971, 	ch. 	1161;
17rn 	1973, 	the 	Act 	was 	amended 	and 	was 	designated 	as 	the
Golden 	Empire 	Transit 	District 	Act 	(Stats. 	1973, 	ch. 	590).
66

Pub. 	Util. 	Code, 	secs. 	101000-101372) 	to 	meet 	public 	transit
problems 	within 	the 	city 	of 	Bakersfield 	and 	adjacent 	Kern
County 	areas. 	In 	its 	labor 	provisions, 	Public 	Ut 	ities 	Code
section 	101340 	grants 	the 	following 	district 	employee 	rights:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	. 	. 	. 	(Emphasis 	added.)
The 	Greater 	Bakersfield Act 	provides 	for 	collective 	bargaining
(Pub. 	Util. 	Code, 	secs. 	101340, 	101348), 	mutually-agreed-to
binding 	arbitration 	for 	dispute 	resolution 	(Pub. 	Util. 	Code,
sec. 	101341) 	and, 	if 	the 	parties 	do 	not 	mutually 	agree 	to
binding 	arbitration, 	r 	erral 	to 	the 	State Conciliation 	Service
for 	mediation, 	then 	to 	the 	Governor 	for 	the 	appointment 	of 	a
fact~finding 	commission, 	30-days 	for 	fact-finding, 	then 	a 	final
fact-finding 	report 	to 	the 	Governor 	followed 	by 	a 	30-day
"cooling 	off" 	period 	(Pub. 	Util. 	Code, 	sec. 	101342). 	Public
Utilities 	Code 	section 	101345 	prescribes 	that 	the 	transit
district 	shall 	assume 	and 	observe 	all 	existing 	labor 	contracts
of 	public 	utilities 	it 	acquires.
The 	second 	1971 	enactment 	by 	the 	Legislature 	was 	the
Sacramento 	Regional 	Transit 	District 	Act 	(Stats. 	1971,
ch. 	1374; 	Pub. 	Util. 	Code, 	secs. 	102000-102700) 	to 	meet 	mass
and 	rapid 	transit 	needs 	of 	the 	Sacramento 	region. 	In 	its
employee 	relations 	provisions, 	Public 	Utilities 	Code 	section
102400 	grants 	the 	following 	employee 	rights:
67

Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Emphasis 	added.)
The 	Sacramento 	Act 	provides 	for 	collective 	bargaining 	(Pub.
Util. 	Code, 	secs. 	102401, 	102407) 	and 	for 	mutually-agreed-to
binding 	arbitration, 	including 	interest 	arbitration, 	in 	dispute
resolution 	(Pub. 	Util. 	Code, 	sec. 	102401). 	Public 	Utilities
Code 	section 	102404 	prescribes 	that 	the 	transit 	district 	shall
assume 	and 	observe 	all 	existing 	labor 	contracts 	of 	public
utilities 	it 	acquires, 	and 	shall 	give 	employees 	of 	acquired
public 	utilities 	their 	accrued 	sick 	leave, 	seniority, 	vacation
and 	pension 	credits. 	Lastly, 	Public 	Utilities 	Code 	section
102410 	prescribes 	that 	if 	the 	employees 	choose 	an 	exclusive
collective 	bargaining 	representative, 	then 	the 	provisions 	of
the 	MMBA 	(Gov. 	Code, 	secs. 	3500-3510) 	are 	not 	applicable 	to 	the
district 	and 	its 	employees.
The 	public 	employee 	law 	amendment 	enacted 	by 	the
Legislature 	in 	1971 	is 	particularly 	significant. 	The
Legislature 	amended 	the 	Fresno 	Metropolitan 	Transit 	District
Act 	of 	1961 	(Stats. 	1961, 	ch. 	1932) 	to 	specifically 	grant 	to
the 	District's 	employees 	the 	right 	to 	engage 	"in 	other
concerted 	activities 	for 	the 	purpose 	of 	collective 	bargaining
or 	other 	mutual 	aid 	or 	protection." 	(Stats. 	1971, 	ch. 	1335;
Pub. 	Util. 	Code, 	appen. 	1, 	sec. 	4.1; 	and 	see 	Anderson 	v.
68

I. 	M. 	Jameson 	Corp. 	(1936) 	7 	Cal.2d 	60, 	67-68.)
In 	1974, 	the 	Legislature 	enacted 	the 	San Mateo 	County
Transit 	District 	Act 	(Stats. 	1974, 	ch. 	502; 	Pub. 	Util. 	Code,
secs. 	103000-103700) 	as 	an 	urgency 	measure 	to 	meet 	public
transit 	problems 	in 	San Mateo 	County. 	In 	its 	employee
relations 	provisions, 	Public 	Utilities 	Code 	section 	103400
grants 	the 	following 	employee 	rights:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Emphasis 	added.)
The 	San Mateo 	Act 	provides 	for 	collective 	bargaining 	(Pub.
Util. 	Code, 	sec. 	103402), 	mediation 	by 	the 	State 	Conciliation
Service 	(Pub. 	Util. 	Code, 	sec. 	103404), 	mutually-agreed~to
binding 	arbitration, 	including 	interest 	arbitration, 	for
dispute 	resolution 	(Pub. 	Util. 	Code, 	sec. 	103405) 	and, 	if 	the
parties 	do 	not 	agree 	to 	binding 	arbitration, 	referral 	to 	the
State 	Conciliation 	Service, 	a 	fact-finding 	commission 	appointed
by 	the 	Governor, 	a 	30-day 	period 	for 	fact-finding, 	and 	then 	a
final 	fact-finding 	report 	to 	the 	Governor 	followed 	by 	a 	30-day
"cooling 	off" 	period 	(Pub. 	Util. 	Code, 	sec. 	103406). 	Public
Utilities 	Code 	sections 	103420 	and 	103421 	further 	provide 	for
appointment 	without 	examination 	of 	employees 	of 	acquired 	public
utilities, 	and 	that 	such 	employees 	be 	credited 	with 	their
accrued 	sick 	leave, 	seniority, 	vacation 	and 	pension 	credits.
69

In 	1975, 	the 	year 	the 	Legislature 	enacted 	the 	Educational
Employment 	Relations 	Act 	(Stats. 	1975, 	ch. 	961), 	it 	also
enacted 	two 	other 	acts 	involving 	public 	employees 	and 	labor
relations, 	and 	one 	act 	involving 	private 	employees. 	The 	first
of 	these 	was 	the 	Mills-Deddeh 	Transit 	Development 	Act 	(Stats.
1975, 	ch. 	294; 	Pub. 	Util. 	Code, 	secs. 	120000-120702) 	to 	provide
for 	public 	mass 	transit 	guideways 	in 	the 	City 	of 	San 	Diego 	and
portions 	of 	southern 	San 	Diego 	County. 	In 	its 	labor
provisions, 	Public 	Utilities 	Code 	section 	120500 	prescribes:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	as 	permitted 	under 	the 	Fede~al
Labor 	Management 	Relations 	Act, 	1947, 	as
amended, 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Emphasis 	added.)
The 	Mills-Deddeh Act 	provides 	for 	collective 	bargaining 	(Pub.
Util. 	Code, 	secs. 	120501, 	120506), 	mutually-agreed-to 	binding
arbitration 	for 	dispute 	resolution 	(Pub. 	Util. 	Code, 	sec.
120502) 	and, 	if 	no 	such mutual 	aqreement, 	referral 	to 	the 	State
Conciliation 	Service, 	then 	to 	the 	Governor 	for 	appointment 	of 	a
fact-finding 	commission within 	10 	days, 	30-days 	for
fact 	finding, 	and 	then 	a 	30-day 	''cooling 	off" 	period 	following
the 	submission 	of 	the 	fact-finding 	report 	to 	the 	Governor 	(Pub.
Util. 	Code, 	sec. 	120503). 	Public 	Utilities 	Code 	sections
120520 	and 	120521 	further 	prescribe 	that 	employees 	of 	acquired
privately 	or 	publicly 	owned 	corporations 	or 	utilities 	shall 	be
70

appointed 	without 	examination 	and 	shall 	be 	credited 	with
accrued 	sick 	leave, 	vacation, 	seniority 	and 	pension 	credits,
and 	that 	the 	district 	board 	shall 	assume 	and 	observe 	all
existing 	labor 	contracts 	of 	the 	acquired 	corporations 	or
utilities.
In 	1975, 	the 	Legislature 	also 	enacted 	the 	North 	San 	Diego
County 	District 	Development 	Board Act 	(Stats. 	1975, 	ch. 	1188;
Pub. 	Util. 	Code, 	secs. 	125000-125561) 	for 	transit 	systems 	in
northern 	San 	Diego 	County. 	In 	its 	labor 	provisions, 	Public
Utilities 	Code 	section 	125520 	prescribes:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain. collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	(Emphasis 	added.)
The 	North 	San Diego Act 	also 	provides 	for 	collective 	bargaining
(Pub. 	Util. 	Code, 	sec. 	125522), 	mediation 	by 	the 	State
Conciliation 	Service 	(Pub. 	Util. 	Code, 	sec. 	125524),
mutually-agreed-to 	binding 	arbitration, 	including 	interest
arbitration, 	for 	dispute 	resolution 	(Pub. 	Util. 	Code, 	sec.
125525) 	and, 	if 	no 	mutual 	agreement 	on 	binding 	arbitration,
referral 	to 	the 	State 	Conciliation 	Service, 	then 	to 	the
Governor 	for 	appointment 	of 	a 	fact-finding 	commission, 	30-days
r 	the 	fact-finding, 	and 	then 	a 	30-day 	"cooling 	off" 	period
following 	the 	submission 	of 	the 	fact-finding 	report 	to 	the
Governor 	(Pub. 	Util. 	Code, 	sec. 	125526). 	Public 	Utilities 	Code
71

sections 	125540 	and 	125541 	further 	provide 	that 	employees 	of
acquired 	publicly 	or 	privately owned 	utilities 	shall 	be
appointed 	without 	examination 	and 	shall 	be 	credited with
accrued 	sick 	leave, 	vacation, 	seniority 	and 	pension 	credits,
and 	that 	the 	transit 	board 	shall 	assume 	and 	observe 	all
existing 	labor 	contracts 	of 	the 	acquired 	utilities.
Finally, 	in 	1975, 	after 	the 	enactment 	of 	the 	Mills-Deddeh
and 	the 	North 	San 	Diego 	acts, 	and 	subsequent 	to 	its 	enactment
of 	EERA 	in 	1975, 	the 	Legislature 	enacted 	the 	Agricultural 	Labor
Relations 	Act 	(ALRA) 	(Stats. 	3d 	Ex. 	Sess. 	1975, 	ch. 	l; 	Labor
Code, 	secs. 	1140-1166.3) 	covering 	private 	agricultural
employees 	and 	establishing 	a 	state Agricultural 	Labor 	Relations
Board 	(ALRB). 	Labor 	Code 	section 	1152 	prescribes 	the
agricultural 	employees' 	rights:
Employees 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	bargain 	collectively
through 	representatives 	of 	their 	own
choosing, 	and 	to 	engage 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
protection. 	. 	. 	. " 	(Emphasis 	added.)
The 	agricultural 	employees' 	right 	to 	engage 	"in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection" 	is 	protected 	by Labor 	Code 	section
1153(a) 	which 	protects 	agricultural 	employees 	"in 	the 	exercise
of 	the 	rights 	guaranteed 	in 	Section 	1152."
72

In 	summary, 	between 	1955 	and 	1975 18 and 	not 	counting
EERA 	or 	ALRA--the 	Legislature 	enacted 	twenty-two 	(22) 	public
employer-employee 	relations 	acts, 	rich 	and 	varied 	in 	their
provisions, 	and 	covering 	a 	wide 	range 	of 	labor 	relation 	and
dispute 	resolution 	matters, 	including: 	(1) 	right 	to 	organize,
join, 	assist 	and 	participate 	in 	labor 	organizations; 	(2)
representation 	by 	labor 	organizations; 	(3) 	bargaining 	ts;
(4) 	elections 	of 	representatives; 	(5) 	"exclusive"
representatives; 	(6) 	right 	to 	"meet 	and 	confer'' 	with 	public
employer; 	(7) 	right 	to 	engage 	in 	collective 	bargaining 	with
public 	employer; 	(8) 	right 	to 	engage 	"in 	other 	concerted
activities 	(including 	strikes) 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or 	protection;" 	(9)
mutually-agreed-to 	binding 	arbitration; 	(10) 	mandatory 	binding
arbitration 	for 	dispute 	resolution, 	including 	interest
arbitration; 	(11) 	mediation 	by 	the 	State 	Conciliation 	Service;
(12) 	when 	binding 	arbitration 	not 	mandatory 	and 	parties 	do 	not
agree 	to 	binding 	arbitration: 	(a) 	mediation 	by 	State
Conciliation 	Service, 	(b) 	fact-finding 	commission 	appointed 	by
18subsequent 	to 	the 	enactment 	of 	EERA 	in 	1975, 	the
Legislature 	enacted 	two 	other 	major 	public 	employer-employee
acts: 	the 	State 	Employer-Employee 	Relations 	Act 	(
(Stats. 	1977, 	ch. 	1159; 	Gov. 	Code, 	secs. 	3512-3524) 	and 	the
Higher 	Education 	Employer-Employee 	Relations 	Act 	(HEEERA)
(Stats. 	1978, 	ch. 	744; 	Gov. 	Code, 	secs. 	3560-3599). 	In 	both
SEERA 	and 	HEEERA 	the 	Legislature 	did 	not 	grant 	the 	covered
state 	employees 	and 	higher 	education 	employees 	the 	right 	to
engage 	"in 	other 	concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection."
73

governor, 	(c) 	fact-finding, 	and 	(d) 	final 	fact-finding 	report
to 	Governor 	with 	30-day 	"cooling 	off" 	period 	thereafter; 	and
(13) 	personnel 	systems, 	including 	merit/civil 	service, 	with
"absorbed" 	former 	private 	employees 	being 	appointed 	without
examination 	and 	receiving 	accrued 	credits, 	etc.
A comparison 	of 	the 	provisions 	of 	the 	various 	public
employee 	acts 	shows 	that 	the 	Legislature 	granted 	the 	right 	to
strike 	in 	twelve 	(12) 	of 	the 	twenty-two 	(22) 	acts. 	Originally,
the 	Legislature 	did 	not 	grant 	the 	right 	to 	strike 	to 	Fresno
Metropolitan 	Transit 	District 	public 	employees 	(Stats. 	1961,
ch. 	1932) 	but 	ten 	years 	later, 	in 	1971, 	amended 	the 	Fresno 	Act
(Stats. 	1971, 	ch. 	1335) 	specifically 	to 	give 	them 	the 	right.
Code
Right
to 	Strike
"16 	Words"
Stats. 	1955, 	ch. 	1036
(Transit 	Dist. 	Law)
PUC 	24501 	-
27509
No
Stats. 	1957, 	ch. 	547
(L.A. 	Met. 	Authority)
PUC Append. 	1 	Yes
Stats. 	1957, 	ch. 	1056
(S.F. 	Bay R.T.)
PUC 	28500 	-
29757
No
Stats. 	1959, 	ch. 	723
(Firefighters)
Lab. 	1960 	-
1963
No
Stats. 	1961, 	ch. 	1964
(Brown Act 	- 	Local)
Gov. 	3500
3509
No
Stats. 	1961, 	ch. 	1932
(Fresno 	Met. 	Transit)
PUC Append. 	2 	No
Stats. 	1963, 	ch. 	839
(Stockton Met. 	Transit)
PUC 	50000 	-
50507
No
Stats. 	1964, 	ch. 	62
(So. 	Calif. 	R. T.)
PUC 	30000 	-
31520
Yes
74

;
\ '
,,
. '
Stats. 	1964, 	ch. 	92
(Marin 	County Transit)
PUC 	70000 	-
80019
Yes
Stats. 	1964, 	ch. 	104
(West 	Bay R.T.)
PUC Append. 	2 	Yes
Stats. 	1965, 	ch. 	1835
(Santa 	Barbara 	Met.)
PUC 	95000 	-
97100
No
Stats. 	1965, 	ch. 	1899
(Orange 	County Transit)
PUC 	40000 	-
40617
No
Stats. 	1965, 	ch. 	2039
(San 	Diego 	Co. 	Transit)
PUC 	90000 	-
93017
Yes
Stats. 	1965, 	ch. 	2041
(Public 	Schools)
Ed. 	13080 	-
13088
No
Stats. 	1967, 	ch. 	978
(Santa 	Cruz 	Met. 	Tran.)
PUC 	98000
98407
No
Stats. 	1968, 	ch. 	1964
(MMBA 	- 	Local)
Gov. 	3500 	-
3509
No
Stats. 	1969, 	ch. 	180
(Santa 	Clara 	County)
PUC 	100000 	-
100500
Yes
Stats. 	1971, 	ch. 	1161
(Gt. 	Bakersfield Met.)
. PUC 	101000
101372
Yes
Stats. 	1971, 	ch. 	1374
(Sacramento 	R.T.)
PUC 	102000 	-
102700
Yes
Stats. 	1971, 	ch. 	1335
(Fresno 	Met. 	- 	Amend)
PUC Append. 	1 	Yes
Stats. 	1974, 	ch. 	502
(San Mateo 	County)
PUC 	103000 	-
103700
Yes
Stats. 	1975, 	ch. 	294
(Mills-Deddeh 	Transit)
PUC 	120000 	-
120702 Yes
Stats. 	1975, 	ch. 	1188
(North 	San 	Diego 	Co.)
PUC 	125000 	-
125561
Yes
We 	turn 	now 	to 	the 	statutory 	provisions 	of 	EERA, 	keeping 	in
mind 	the 	Legislature's 	knowledge 	of 	and 	familiarity 	with 	the
constitutional 	and 	statutory mandates 	with 	respect 	to 	the
operation 	of 	the 	public 	schools 	and 	its 	knowledge 	and
75

familiarity 	with 	the 	statutory 	language 	granting 	the 	right 	to
cases 	cited 	therein; 	Bailey v. 	Sunerior 	Court 	(1977) 	19 	Cal.3d
970, 	977-978, 	fn. 	10; 	Fuentes 	v. 	Workers' 	Compensation 	Appeals
Board, 	supra, 	16 	Cal.3d 	1, 	7; 	Keeler 	v. 	Superior 	Court, 	supra,
2 	Cal.3d 	619, 	625; 	Los 	Angeles 	Metropolitan 	Transit
Authority 	v. 	Brotherhood 	of 	Railroad 	Trainmen, 	supra, 	65 	Cal.2d
684, 	688 	689; 	Buckley v. 	Chadwick, 	supra, 	45 	Cal.2d 	183, 	200
and 	cases 	cited 	therein; 	Sutter 	Hospital 	v. 	City 	of 	Sacramento,
supra, 	39 	Cal.2d 	33, 	38; 	Rosenthal 	v. 	Cory, 	supra,
69 	Cal.App.3d 	950, 	953.)
II. 	PUBLIC 	SCHOOL EMPLOYEE 	RIGHTS 	GRANTED AND 	PROTECTED
BY THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	ACT
Various 	appellate 	court 	decisions 	ably 	identify, 	describe
and 	trace 	the 	status 	of 	public 	school 	employees 	with 	respect
to: 	(1) 	organizing; 	(2) 	bargaining 	collectively 	through 	fheir
chosen 	representatives; 	and 	(3) 	engaging 	"in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection" 	(specifically, 	the 	right 	to 	strike),
in 	the 	years 	preceding 	and 	up 	to 	the 	enactment 	of 	the
Educational 	Employment 	Relations 	Act 	in 	1975 	(Stats. 	1975,
ch. 	9 61) .
In 	California 	Federation 	of 	Teachers, 	AFL-CIO 	v. 	Oxnard
Elementary 	Schools 	(1969) 	272 	Cal.App.2d 	514, 	the 	court 	dealt
with 	an 	attack 	on 	the 	constitutionality 	of 	the 	Winton Act
76

(former 	Ed. 	Code, 	secs. 	13080-13088). 	The Winton Act 	(which
was 	repealed 	and 	superseded 	by EERA) 	prescribed 	certain 	rights
to 	public 	school 	employees 	and 	provided 	for 	a 	"negotiating
council" 	when 	there 	was 	more 	than 	one 	employee 	organization.
The 	Oxnard 	decision, 	in 	discussing 	the 	constitutionality of 	the
Winton 	Act, 	first 	considered 	the 	subject 	matter, 	history 	and
legislative 	purpose 	of 	the 	statute:
California 	in 	1933 	declared 	its 	legislative
policy 	concerning 	the 	regulation 	of
employment 	relations 	in 	private 	industry
(Lab. 	Code, 	secs. 	920 	et 	seq.). 	The 	common
law 	policy 	of 	the 	state was 	codified 	in
Labor 	Code 	section 	923, 	revised 	in 	1937, 	as
follows: 	" 	Therefore 	it 	is 	necessary
that 	the 	individual 	workman 	have 	full
freedom 	of 	association, 	self-organization,
and 	designation 	of 	representatives 	of 	his
own 	choosing, 	to 	negotiate 	the 	terms 	and
conditions 	of 	his 	employment, 	and 	that 	he
shall 	be 	free 	from 	the 	inte 	,
restraint, 	or 	coercion 	of 	employers 	of
·labor, 	or 	their 	agents, 	in 	the 	designation
of 	such 	resentatives 	or 	in 	self
organiz 	on 	or 	in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or
QLotection." 	This 	section 	... 	guarantees
to 	private 	employees 	the 	right 	to 	organize,
to 	engage 	in 	collective 	bargaining
(Shafer 	v. 	Registered 	Pharmacists 	Union,
16 	Cal.2d 	379, 	385), 	and 	to 	participate 	in
concerted 	activities 	to 	secure 	legitimate
employment 	benefits. 	(Petri 	Cleaners,
Jnc. 	v. 	Automotive 	Employees 	etc. 	Local
No. 	88, 	supra, 	53 	Cal.2d 	455, 	469-471.)
Labor 	Code 	section 	923 	does 	not, 	however,
impose 	upon 	the 	employer 	the 	legal 	duty 	to
engage 	in 	collective 	bargaining 	(Petri
Cleaners, 	Inc. 	v.
Local 	No. 	B8, 	suora, 	p. 	474) 	and 	it 	has 	been
judicially determined 	that 	specific
legislation 	is 	required 	to 	extend 	to 	public
employees 	the 	right 	to 	bargain 	collectively
which would 	"establish 	an 	entirely 	new
77

system 	in 	the 	field 	of 	public 	employment."
(Nutter 	v. 	City 	of 	Santa 	Monica,
74 	Cal.App.2d 	292, 	301; 	City of
Los 	Angeles 	v. 	Los 	Angeles 	etc. 	Council
94 	Cal.App. 	2d 	36, 	46; 	State 	of
California 	v. 	Brotherhood 	of 	R.R. 	Trainmen,
supra, 	37 	Cal.2d 	412, 	417, 	cert. 	den. 	342
U.S. 	876.)
Since 	the 	policy underlying 	Labor 	Code
section 	923 	had 	no 	necessary 	application 	to
public 	employees, 	who 	occupy 	a 	status 	in
relation 	to 	their 	employer 	different 	from
that 	of 	their 	private 	counterparts, 	separate
and 	distinctive 	legislative 	treatment 	has
been 	accorded 	the 	regulation 	of 	their
employment 	relations. 	The 	Legislature,
acceding 	to 	the 	demands 	of 	public 	employees
for 	a 	more 	fective 	and 	substantial 	voice
in 	the 	determination 	of 	the 	terms 	and
conditions 	of 	their 	employment, 	has 	only
recently 	been 	confronted with 	the 	need 	to
reconcile 	those 	elements 	which 	differentiate
the 	position 	of 	public 	employees 	relative 	to
their 	employer 	from 	that 	of 	private
employees. 	In 	attempting 	to 	formulate
statutes 	tq 	extend 	to 	public 	employees
appropriate 	opportunitites 	to 	participate ·in
determinations 	relating 	to 	the 	terms 	and
conditions 	of 	their 	employment, 	the
Legislature 	has 	been 	compelled 	to 	reevaluate
procedures 	such 	as 	collective 	bargaining,
exclusive 	representation, 	and 	strikes 	which
fulfill 	a 	traditional 	role 	in 	private 	labor
negotiations 	with 	respect 	to 	the
appropriateness 	of 	their 	application 	not
only 	to 	the 	public 	sector 	generally, 	but 	to
the wide 	variety 	of 	occupations 	and
professions 	encompassed 	within 	the 	field 	of
public 	employment.
The 	separate 	treatment 	of 	public 	school
system employees 	under 	the 	Winton Act 	should
be 	viewed 	in 	its 	sociological 	and 	historical
perspective. 	It 	was 	not 	the 	first
legislative 	attempt 	to 	govern 	public
employment 	relations 	in 	California 	but
evolved 	through 	a 	series 	of 	enactments
designed 	to 	regulate 	separately various
aspects 	of 	public 	employment. 	The 	first 	of
these was 	the 	Los 	Angeles 	Metropolitan
78

Transit Authority Act 	of 	1957 	(Stats. 	1957,
ch. 	547, 	p. 	1609) 	which 	extended 	to
employees 	of 	the 	then 	newly 	organized
Los 	Angeles 	Metropolitan 	Transit 	Authority
the 	right 	to 	form 	labor 	organizations 	and 	to
engage 	in 	collective 	bargaining 	and 	was 	held
constitutional 	in 	the 	face 	of 	charges 	of
arbitrary 	classification. 	(Los 	Angeles 	Met.
Transit 	Authority v. 	Brotherhood 	of 	R.R.
Trainmen, 	54 	Cal.2d 	684, 	694 	[8 	Cal.Rptr. 	1,
355 	P.2d 	905].) 	The 	California 	Fire
Fighters 	Act 	(Lab. 	Code, 	secs. 	1960-1963),
which 	in 	1959 	extended 	to 	the 	fire 	fighters
the 	right 	to 	self 	organization 	to 	present 	to
their 	employer 	grievances 	and
recommendat~ons 	relating 	to 	their 	working
conditions 	but 	specifically 	proscribed 	to
them 	the 	policies 	of 	Labor 	Code 	section 	923,
was 	subsequently held 	constitutional 	against
similar 	charges. 	(Professional 	Fire
Fiohters 	Inc. 	v. 	City of 	Los 	Angeles,
60 	Cal.2d 	276, 	287 	(32 	Cal.Rptr. 	830;
384 	P.2d 	158] .)
In 	1961 	the 	Brown Act 	(Gov. 	Code, 	secs.
3500-3509) 	extended 	to 	employees 	of 	"the
various 	public 	agencies 	in 	the 	State" 	(Gov.
Code, 	sec. 	3500) 	the 	right 	to 	form 	and 	to
join 	employee 	organizations 	which 	had 	as 	one
of 	their 	primary 	purposes 	the 	representation
of 	such 	employees 	in 	their 	relations 	with
the 	public 	agency employer, 	and 	to 	be
represented 	by 	such employee 	organizations
or 	to 	represent 	themselves 	individually
(Gov. 	Code, 	secs. 	3501, 	3502), 	but 	again
Labor 	Code 	section 	923 	was 	specifically
rendered 	inapplicable. 	The Winton Act 	(Ed.
Code, 	secs. 	13080-13087) 	passed 	in 	1965, 	was
patterned 	upon 	and 	is 	in many 	respects
similar 	to 	the 	Brown Act, 	and 	it 	contains
the 	same 	limitation with 	respect 	to 	Labor
Code 	section 	923. 	(Ed. 	Code, 	sec. 	13088.)
It 	removes 	from 	the 	application 	of 	the 	Brown
Act 	and 	treats 	separately 	the 	employees 	of
public 	school 	systems, 	both 	certificated 	and
noncertificated, 	and 	declares 	that 	its
purpose 	is, 	inter 	alia, 	to 	provide
recognition 	of 	the 	right 	of 	public 	school
employees 	to 	be 	represented 	by 	organizations
in 	their 	professional 	as 	well 	as 	their
employment 	relationships, 	and 	"to 	afford
certificated 	employees 	a 	voice 	in 	the
79

formulation 	of 	educational 	policy.'' 	(Ed.
Code, 	sec. 	13080.) 	Although 	the 	Brown Act
was 	amended 	in 	1968 	(Stats. 	1968, 	ch. 	1390)
to 	require 	that 	the 	governing 	body 	of 	a
public 	agency 	should 	"meet 	and 	confer 	in
good 	faith" 	and 	should 	reduce 	its 	employment
agreements 	to 	writing 	(Gov. 	Code, 	sec. 	3505)
only 	the 	Los 	Angeles 	Metropolitan 	Transit
Authority Act~ 	supra, 	has 	adopted 	and
applied 	to 	employees 	in 	public 	service 	in
California 	the 	collective 	bargaining
concepts 	of 	the 	National 	Labor 	Relations 	Act
or 	similar 	state 	statutes. 	The 	California
Legislature 	has 	clearly been 	attempting 	to
reconcile 	by 	selective 	innovation 	the
divergent 	elements 	inherent 	in 	public
employer-employee 	relations 	including 	the
acknowledged 	distinctions 	in 	the 	status 	and
obligations 	of 	public 	and 	private 	employees,
as 	well 	as 	the 	various 	occupations 	and
professions 	represented 	by 	public 	employment.
It 	is 	generally 	acknowledged 	that 	essential
distinctions 	exist 	between 	educational
public 	agencies 	and 	general, 	non-educational
.public 	agencies, 	and 	for 	this 	reason
educational 	agencies 	have 	traditionally
received 	separate 	legislative 	treatment.
(See Minneapolis 	Fed. 	of 	Teachers, 	Loqal
v. 	Obermeyer 	(1966) 	275 	Minn. 	347
[147 	N.W.2d 	358] .) 	The 	Education Code
accordingly 	establishes 	a 	complete 	system
dealing 	with 	the 	credentials, 	employment,
tenure, 	leave, 	salaries, 	dismissal,
retirement, 	and 	other 	employee 	rights 	and
obligations 	applicable 	to 	public 	school
employees. 	(Ed. 	Code, 	secs. 	12901-13777;
24201-24324.) 	This 	legislation, 	separate
from 	statutes 	relating 	to 	state, 	county 	and
other 	public 	agency 	employees,
differentiates 	certificated 	employees 	(Ed.
Code, 	secs. 	13101-13575.7) 	from
noncertificated 	employees 	(Ed. 	Code, 	secs.
13580-13756) 	in 	the 	public 	school 	and 	junior
college 	systems 	and, 	consistently,
differentiates 	academic 	from 	non-academic
·employees 	in 	the 	state 	colleges. 	(Cal.
Admin. 	Code, 	tit. 	5, 	secs.
42700-43700.) 	.
80

The 	Winton 	Act 	is 	constructed 	upon 	the
premise 	that 	all 	groups 	concerned with 	the
subject 	matter 	{teachers 	and 	other 	school
employees 	as 	well 	as 	administrators 	and
school 	board 	members) 	are 	genuinely 	and
primarily 	interested 	in 	the 	welfare 	of
schools 	and 	pupils 	and 	are 	willing, 	given
appropriate 	means, 	to 	work 	harmoniously 	in
order 	to 	secure 	the 	legitimate 	demands 	of
school 	employees 	without 	detriment 	to 	the
educational 	institutions 	.
The 	local 	public 	school 	board, 	which 	is
traditionally 	composed 	of 	elected 	interested
lay 	personnel, 	currently 	finds 	itself 	in 	a
singular 	position 	relative 	to 	its
functions. 	It 	must 	respond 	on 	the 	one 	hand
to 	its 	constituents, 	on 	the 	other 	to 	its
legislative 	peers, 	and 	it 	is 	confronted 	in
every direction 	by 	organizations 	of
certificated 	employees 	which 	have 	recently
risen 	to 	contend 	for 	teachers 	the 	same
rights 	to 	self 	determination 	of 	their
employment 	conditions 	as 	their 	counterparts
in 	private 	industry. 	The 	board 	is, 	as
heretofore 	mentioned, 	charged 	by 	legislative
mandate 	with 	conducting 	the 	affairs 	of 	the
local 	school 	district 	according 	to 	the
comprehensive 	statutory 	scheme 	of 	regulating
salaries, 	leaves, 	certification, 	tenure, 	and
other 	circumstances 	affecting 	teaching
personnel. 	It 	is 	elected 	to 	determine,
elucidate 	and 	implement 	the 	district's
policy 	considerations 	and, 	at 	the 	conclusion
of 	general 	open 	discussion 	and 	the
presentation 	of 	recommendations, 	the 	board
is 	left 	with 	the 	ultimate 	decision. 	While
giving 	consideration 	to 	the 	recommendations
of 	the 	majority 	as 	well 	as 	the 	participating
minority 	organizations 	among 	its
certificated 	employees, 	the 	board 	must
nonetheless 	continue 	responsive 	to 	the 	will
of 	the 	local 	electorate 	and 	the 	legislative
dictates 	relating 	to 	employment 	conditions
and 	curriculum 	requirements 	within 	this
state. 	Finally, 	it 	is 	by 	the 	Winton 	Act
directed 	to 	listen 	and 	respond 	to 	the
suggestions 	of 	employee 	organizations 	and 	it
must 	tread 	carefully 	in 	its 	attempt 	to
reconcile 	all 	these 	imperatives 	in 	an
81

equitable 	manner. 	Clearly, 	the 	board 	in 	its
effort 	to 	negotiate 	these 	hurdles, 	is
compelled 	to 	rely upon 	the 	recognition 	on
the 	part 	of 	the 	district's 	highly 	educated
and 	trained, 	certificated 	employees, 	that
their 	professional 	obligation 	to 	the
community 	demands 	of 	them 	a 	high degree 	of
cooperation, 	responsibility 	to 	render
continuing 	services, 	and 	to 	refrain 	from
interference with 	the 	essential 	operation 	of
educational 	institutions 	even 	in 	times 	of
conflict. 	It 	is 	assumed 	that 	certificated
personnel, 	dedicated 	to 	their 	occupational
goals, 	will 	in 	good 	faith 	participate 	in
whatever 	statutory 	procedures 	may 	reasonably
be 	established 	to 	assure 	a 	free 	exchange 	of
communication, 	both 	interorganizational 	and
between 	the 	board 	and 	the 	employee
organizations 	competing 	within 	the 	District.
"Teachers 	are 	earnest 	and 	devoted 	peop
with 	a 	high 	degree 	of 	professional 	training
and 	experience. 	They 	know 	children 	and 	what
goes 	on 	in 	the 	classroom 	and 	in 	the 	learning
process. 	A 	lay 	board 	should make 	full 	use
of 	their 	willingness, 	and 	their 	knowledge
and 	experience 	in 	matters 	of 	vital 	concern
to 	both. 	Their 	voices 	should 	be 	heard 	and
their 	recommendations 	thoughtfully
considered. 	This 	should 	be 	rudimentary 	in
good 	procedure. 	If 	boards 	and
superintendents 	aren't 	doing 	this, 	they
should. 	The 	critical 	question 	now 	is 	this:
Is 	the 	superimposing 	of 	the 	already 	outgrown
and 	inadequate 	industrial 	bargaining 	theory
and 	techniques 	upon 	this 	quite 	different 	set
of 	conditions 	the 	best 	way 	to 	achieve 	our
purposes? 	Is 	this 	the 	desired 	spirit 	and
procedure? 	Is 	industrial 	type 	'bargaining'
the 	way 	to 	select 	a 	reader 	for 	the 	third
grade, 	or 	decide 	whether 	to 	introduce 	the
new 	math 	for 	the 	eleventh, 	or 	whether 	the
class 	size 	shall 	be 	22 	or 	27, 	or 	which
teacher 	shall 	teach 	in which 	school? 	Can't
we 	find 	a 	better 	way( 	in 	a 	different
context, 	to 	solve 	difficult 	professional
questions 	that 	must 	be 	reasoned 	and 	analyzed
and 	decided, 	but 	not 	'bargained' 	in 	this
ritualistic 	sense?" 	(Hatcher, 	Alexander 	F.
Morrison 	Lecturer, 	42 	State 	Bar 	J.,
pp. 	50-51.)
82

The 	air 	is 	stirring 	with 	the 	demands 	of
public 	employees 	for 	recognition 	and 	the
right 	to 	organize 	in 	the 	interests 	of
influencing 	their 	employment 	conditions, 	and
they 	are 	entitled 	to 	have 	these 	demands
acknowledged 	and 	accorded 	to 	them within
reasonable 	statutory 	bounds 	and
limitations. 	Our 	Legislature 	in 	its
inimitable wisdom 	has 	responded 	to 	the
challenge 	by 	evolving 	the 	negotiating
council, 	which 	incorporates 	provision 	for
representation 	by 	appointed 	members 	of
various 	minority 	organizations, 	in 	order 	to
encourage 	the 	free 	exchange 	of 	ideas 	and 	the
resolution 	of 	internal 	conflicts 	between
these 	novice 	entries 	into 	the 	labor
negotiation 	arena. 	It 	is 	the 	aim 	of 	such
legislation 	to 	encourage 	the 	peaceful
coexistence 	of 	employee 	organizations
representing 	different 	philosophies 	and 	to
allow 	for 	the 	voice 	of 	dissent, 	minimizing
the 	coercion 	of 	minorities 	to 	the 	majority
will. 	"The 	Legislature 	is 	uniquely 	able 	to
amass 	economic 	data 	and 	hold. hearings 	where
it 	can 	give 	heed 	to 	many 	representatives 	of
the 	public 	besides 	parties 	to 	a
controversy." 	v. 	Journeymen
Barbers 	etc. 	International 	Union, 	53 	Cal.2d
873, 	882 	[4 	Cal.Rptr. 	179, 	351 	P.2d 	347].)
Having 	carefully 	considered 	the 	problem 	of
employment 	relations 	in 	the 	public 	school
systems 	the 	Legislature 	arrived 	at 	a 	sound
statutory 	determination 	of 	its 	tentative
solution. 	This 	court 	has, 	under 	the
circumstances, 	the 	duty 	and 	obligation 	to
sustain 	the 	validity 	of 	the 	statutory 	scheme
and 	to 	enjoin upon 	appellants 	the
responsibility 	to 	cooperate 	and 	participate
in 	good 	faith 	in 	order 	to 	enhance 	the
declared 	appropriate 	legislative 	objectives.
(272 	Cal.App.2d 	at 	519-540, 	emphasis 	added.)
Three 	years 	later, 	in Westminster 	School 	District 	of 	Orange
County 	v. 	Superior 	Court 	& Westminster 	Teachers 	Association
(1972) 	28 	Cal.App.3d 	120, 	127-129, 	the 	Court 	of 	Appeal 	stated:
The 	background 	and 	history 	of 	the 	California
Legislature's 	attempts 	to 	deal 	with 	public
employer-employee 	relations 	in 	this 	state,
83

including 	the 	background 	and 	reasons 	for
enactment 	of 	the 	Winton 	Act, 	are 	admirably
reviewed 	and 	discussed 	in 	California
Federation 	of 	Teachers 	v. 	Oxnard 	Elementary
Sch., 	272 	Cal.App.2d 	514, 	520-524, 	529-530,
532-535, 	538-540 	[77 	Cal.Rptr. 	497] 	(see 	also
Berkeley Teachers 	Assn. 	v. 	Board 	of
Education, 	254 	Cal.App.2d 	660, 	663-664
[62 	Cal.Rptr. 	515]), 	and 	it 	would 	serve 	no
useful 	purpose 	to 	repeat 	here 	what 	is 	there
set 	forth. 	Suffice 	it 	to 	summarize 	as
follows. 	"The 	California 	Legislature 	has
clearly 	been 	attempting 	to 	reconcile 	by
selective 	innovation 	the 	divergent 	elements
inherent 	in 	public 	employer-employee
relations 	including 	the 	acknowledged
distinctions 	in 	the 	status 	and 	obligations 	of
public 	and 	private 	employees, 	as 	well 	as 	the
various 	occupations 	and 	professions
represented 	by 	public 	employment."
(California 	Federation 	of 	Teachers 	v. 	Oxnard
Elementary 	Sch., 	supra, 	272 	Cal.App.2d 	at
p. 	523.)
The 	Winton 	Act 	does 	not 	embody 	the 	concept 	of
collective 	bargaining. 	(Ed. 	Code, 	sec.
13088; 	California 	Federation 	of 	Teachers 	v.
Oxnard 	Elementary 	Sch., 	supra, 	272 	Cal.App.2d
at 	pp. 	523, 	534, 	538-540; 	Berkeley Teachers
Assn. 	v. 	Board 	of 	Education, 	supra,
254 	Cal.App. 	2d 	at 	p. 	671.) 	Its 	provisions
make 	clear 	that 	the 	right 	conferred 	upon
certificated 	public 	school 	employees 	is 	to
voice 	their 	views 	and 	ideas 	through
recognized 	representatives 	and 	to 	have 	these
views 	and 	ideas 	considered 	by 	the 	public
school 	employer 	but 	that 	all 	final 	decisions
are 	left 	to 	the 	public 	school 	employer.
(Secs. 	13085, 	13088.)
While 	the 	Winton 	Act 	afforded 	certain 	limited 	rights 	to 	public
school 	employees, 	it 	also 	contained 	Education 	Code 	section
13088 	which 	prescribed 	that: 	"The 	enactment 	of 	this 	article
[Winton 	Act] 	shall 	not 	be 	construed 	as 	making 	the 	provisions 	of
Section 	923 	of 	the 	Labor 	Code 	applicable 	to 	public 	school
employees."
84

Appellate 	decisions 	prior 	to 	1975 	were 	unanimous 	in 	their
holdings 	that 	public 	employees--including 	public 	school
employees--do 	not 	have 	the 	right 	to 	strike 	unless 	statutorily
authorized 	by 	the 	Legislature. 	(Los 	Angeles 	Metropolitan
Transit 	Authority v. 	Brotherhood 	of 	Railroad 	Trainmen, 	supra,
54 	Cal.2d 	684, 	687; 	Newmarker 	v. 	Regents 	of 	the 	University
~~~~~=' 	supra, 	160 	Cal.App.2d 	640, 	646-647; 	Almond 	v.
County 	of 	Sacramento 	(1969) 	276 	Cal.App.2d 	32, 	36-38, 	hg. 	den.;
City 	of 	San 	Diego 	v. 	American 	Federation 	of 	State, 	County 	and
Municipal 	Employees 	(1970) 	8 	Cal.App.3d 	308, 	310-311, 	hg. 	den.;
Trustees 	of 	California 	State 	Colleges 	v.
San 	Francisco 	State 	Teachers 	(1970) 	13 	Cal.App.3d 	863, 	867, 	hg.
den.; 	Los 	Angeles 	Unified 	School 	District 	v. 	United 	Teachers
(1972) 	24 	Cal.App.3d 	142, 	145-146, 	hg. 	den.; 	Berkeley Teachers
Association 	v. 	Board 	of 	Education 	(1967) 	254 	Cal.App.2d 	660,
671, 	hg. 	den.)
In 	1975, 	the 	Legislature 	repealed 	the 	Winton Act 	and
enacted 	the 	Educational 	Employment 	Relations 	Act 	(Stats. 	1975,
ch. 	961; 	Gov. 	Code, 	secs. 	3540-3549.3). 	EERA 	section 	3540 	sets
forth 	the 	intent 	and 	purpose 	of 	the 	Legislature 	in 	enacting
EERA, 	including 	"recognizing 	the 	right 	of 	public 	school
employees 	to 	join organizations 	of 	their 	own 	choice, 	to 	be
represented 	by 	such 	organizations 	in 	their 	professional 	and
employment 	relationships 	with 	public 	school 	employers, 	to
select 	one 	employee 	organization 	as 	the 	exclusive
representative 	of 	the 	employees 	in 	an 	appropriate 	unit, 	and 	to
85

afford 	certificated 	employees 	a 	voice 	in 	the 	formulation 	of
educational 	policy." 	EERA 	sections 	3543.3, 	3543.2 	and
3540.l(h) 	provide 	for 	collective 	bargaining 	between 	the 	public
school 	employer 	and 	the 	exclusive 	representative 	of 	a 	public
school 	employees 	unit 	as 	to 	matters 	within 	the 	scope 	of
representation.
As 	to 	whether 	the 	Legislature 	has 	granted 	public 	school
employees 	the 	right 	to 	strike 	under 	EERA, 	there 	are 	two
pertinent 	EERA 	sections: 	Government 	Code 	sections 	3543 	and
3549. 	EERA 	section 	3543 	prescribes:
Public 	school 	employees 	shall 	have 	the 	right
to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations. 	Public 	school
employees 	shall 	also 	have 	the 	right 	to
refuse 	to 	join 	or 	participate 	in 	the
activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the 	public 	school 	employer, 	except 	that
once 	the 	employees 	in 	an 	appropriate 	unit
have 	selected 	an 	exclusive 	representative
and 	it 	has 	been 	recognized 	pursuant 	to
Section 	3544.1 	or 	certified 	pursuant 	to
Section 	3544.7 	no 	employee 	in 	that 	unit 	may
meet 	and 	negotiate 	with 	the 	public 	school
employer. 	·
Any 	employee 	may 	at 	any 	time 	present
grievances 	to 	his 	employer, 	and 	have
such 	grievances 	adjusted, 	without 	the
intervention 	of 	the 	exclusive
representative, 	as 	long 	as 	the 	adjustment 	is
reached 	prior 	to 	arbitration 	pursuant 	to
Sections 	3548.5, 	3548.6, 	3548.7, 	and 	3548.8
and 	the 	adjustment 	is 	not 	inconsistent 	with
the 	terms 	of 	a 	written 	agreement 	then 	in
effect; 	provided 	that 	the 	public 	school
employer 	shall 	not 	agree 	to 	a 	resolution 	of
86

the 	grievance 	until 	the 	exclusive
representative 	has 	received 	a 	copy 	of 	the
grievance 	and 	the 	proposed 	resolution 	and
has 	been 	given 	the 	opportunity 	to 	file 	a
response.
Significantly, 	EERA 	section 	3549 	provides 	in 	pertinent 	part:
"The 	enactment 	of 	this 	chapter 	[EERA] 	as
making 	the 	provisions 	of 	Section 	923 	of 	the 	Labor 	Code
applicable 	to 	public 	school 	employees 	. 	" 	(Gov. 	Code,
sec. 	3549, 	emphasis 	added.)
Conspicuously 	absent 	and 	intentionally 	omitted 	by 	the
Legislature 	from 	the 	rights 	granted 	to 	public 	school 	employees
in 	Section 	3543 	is 	the 	right 	to 	engage 	"in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
mutual 	aid 	or 	protection." 	Keeping 	in 	mind 	the 	Legislature's
knowledge 	of 	the 	California 	Constitution, 	of 	existing 	and
related 	statutes, 	and 	judicial 	decisions 	construing 	those
statutes, 	in 	addition 	to 	the 	governing 	rules 	of 	statutory
construction, 	it 	is 	patently 	clear 	that 	the 	Legislature
withheld 	and 	did 	grant 	to 	public 	school 	employees 	the 	right
to 	engage 	"in 	other 	concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection," 	which
includes, 	of 	course, 	the 	right 	to 	strike.
The 	Legislature's 	ommission 	from 	EERA 	section 	3543 	of 	the
right 	to 	engage 	in 	"other concerted 	activities 	for 	the 	purpose
of 	collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection,"
must 	be 	construed 	as 	intentional, 	not 	inadvertent. 	Where
statutes 	referring 	to 	one 	subject 	contain 	a 	critical 	word 	or
87

phrase, 	omission 	of 	that 	vital 	word 	or 	phrase 	from 	a 	similar
statute 	on 	the 	same 	or 	related 	subject 	is 	presumed 	to 	have 	been
deliberate 	by 	the 	Legislature 	and 	expressing 	a 	different
legislative 	intent. 	(Estate 	of 	Simpson 	(1954) 	43 	Cal.2d 	594,
600; 	Richfield 	Oil 	Corp. 	v. 	Crawford 	(1952) 	39 	Cal.2d 	729, 	735;
People 	v. 	Valentine 	(1946) 	28 	Cal.2d 	121, 	142; 	Signal 	Oil 	& Gas
v. 	Bradbury 	(1960) 	183 	Cal.App.2d 	40, 	51, 	hg. 	den.;
Craven 	v. 	Crout 	(1985} 	163 	Cal.App.3d 	779, 	783;
Corp. 	v. 	City 	of 	Oxnard 	(1981) 	126 	Cal.App.3d 	814, 	821; 	Estate
of 	Trego 	(1978) 	81 	Cal.App.3d 	530, 	534; 	Marsh 	v. 	Edwards
Theatres 	Circuit 	Inc. 	(1976} 	64 	Cal.App.3d 	881, 	891, 	hg. 	den.;
Hennigan 	v. 	United 	Pacific 	Insurance 	Co. 	(1975} 	53 	Cal.App.3d
1, 	8; 	City 	of 	Burbank v. 	Metropolitan Water 	District 	(1960)
180 	Cal.App.2d 	451, 	461-462; 	and 	see 	v.
Workers' 	Compensation Appeals 	Board 	(1978) 	22 	Cal.3d 	658, 	666;
Balboa 	Insurance 	Co. 	v. 	Aguirre 	(1983) 	149 	Cal.App.3d 	1002,
1007, 	hg. 	den.; 	County of 	Los 	Angeles 	v. 	Department 	of 	Social
Welfare 	(1953) 	41 	Cal.2d 	455, 	459.)
Not 	only do we 	have 	the 	selective 	grant 	by 	the 	Legislature
of 	the 	"16 	words" 	concerted 	activities 	right 	in 	various
statutes 	prior 	to 	1975 	(Los 	Angeles 	Metropolitan 	Transit
Authority 	v. 	Brotherhood 	of 	Railroad 	Trainmen, 	supra,
54 	Cal.2d. 	684, 	687-689; 	Pub. 	Util. 	Code, 	secs. 	30755, 	70120,
90300(a) 	100300, 	101340, 	102400, 	103400}, 	but 	in 	1975, 	the 	very
same 	year 	the 	Legislature 	enacted 	EERA, 	it 	also 	enacted 	two
other 	public 	employee 	acts 	(Stats. 	1975, 	ch. 	294; 	Stats. 	1975,
88

ch. 	1188) 	in which 	it 	granted 	the 	"16 	words" 	concerted
activities 	right 	to 	the 	covered 	public 	employees 	(Pub. 	Util.
Code, 	secs. 	120500, 	125520.) 	Also 	in 	1975, 	subsequent 	to 	the
enactment 	of 	EERA, 	the 	Legislature 	enacted 	the 	Agricultural
Labor 	Relations 	Act 	(ALRA 	- 	Stats. 	1975 	3d 	Ex. 	Sess, 	ch. 	l;
Lab. 	Code, 	secs. 	1140 	1166) 	which 	granted 	private 	agricultural
employees 	(who 	were 	not 	covered 	by 	the 	federal 	NLRA) 	the 	rights
to 	organize, 	to 	bargain 	collectively 	through 	their 	chosen
representatives 	and 	to 	engage 	"in 	other 	concerted 	activities
for 	the 	purpose 	of 	collective 	bargaining 	or 	other 	mutual 	aid 	or
protection" 	(Lab. 	Code, 	sec. 	1152). 	Appellate 	decisions 	have
reiterated 	that 	the 	right 	to 	engage 	in 	"concerted 	activities''
granted 	to 	agricultural 	employees 	under 	Labor 	Code 	section 	1152
includes 	the 	right 	to 	strike, 	picket, 	and 	participate 	in 	other
types 	of 	"concerted 	activities" 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or 	protection. 	(Kaplan's
Fruit 	& Produce 	Co. 	v. 	Superior 	Court 	(1979) 	26 	Cal.3d 	60, 	71;
Nash-Decamp 	Co. 	v. 	(1983) 	146 	Cal.App.3d 	92, 	95·, 	104-112;
ALRB 	v. 	California 	Coastal 	Farms, 	Inc. 	(1982) 	31 	Cal.3d 	469,
482; 	George 	Arakelian 	Farms, 	Inc. 	v. 	(1980) 	111 	Cal.App.3d
258, 	274-277 	hg. 	den.)
The 	Legislature 	circumspectly 	nforced 	its 	intent 	that
public 	school 	employees 	were 	not 	to 	have 	the 	right 	to 	strike
for 	the 	purpose 	of 	collective 	bargaining 	or 	other 	mutual 	aid 	or
protection 	by 	placing 	in 	EERA 	section 	3549 	which 	proscribes
EERA 	from 	being 	construed 	so 	as 	to 	make 	Labor 	Code 	section 	923
89

provisions 	applicable 	to 	public 	school 	employees. 	Since EERA
itself 	grants 	to 	public 	school 	employees 	all 	of 	the 	rights
provided 	by 	Labor 	Code 	section 	923 	save 	and 	except 	the 	right 	to
engage 	"in 	other 	concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection," 	the
prohibitory 	purpose 	of 	section 	3549 	with 	respect 	to 	public
school 	employee 	strikes 	is 	unmistakable.
The 	statutory 	evidence 	is 	overwhelming 	that 	the 	Legislature
did 	not 	grant 	to 	public 	school 	employees 	the 	right 	to 	strike.
Furthermore, 	any 	attempt 	to 	otherwise 	interpret 	or 	read
into 	EERA 	a 	right 	of 	public 	school 	employees 	to 	strike 	or
engage 	in 	other 	concerted 	activities 	interfering 	with 	or
having 	a 	disruptive 	effect 	on 	the 	operation 	of 	the 	public
schools 	would 	bring 	EERA 	into 	direct 	conflict 	with 	the
California 	Constitution 	and 	the 	Education 	Code. 	Article 	IX 	of
our 	Constitution 	mandates 	the 	Legislature 	to 	operate 	the 	public
schools 	at 	least 	six 	months 	each 	school 	year, 	and 	the
Legislature, 	through 	the 	Education 	Code, 	has 	extended 	the
minimum 	operation 	of 	the 	public 	schools 	to 	almost 	nine 	months
each 	school 	year. 	(Cal. 	Const., 	art. 	IX, 	sec. 	5; 	Ed. 	Code,
secs. 	41420, 	48200; 	California 	Teachers 	Association 	v. 	Board 	of
Education 	of 	the 	Glendale 	Unified 	School 	District, 	~upra,
109 	Cal.App.3d 	738, 	744; 	Compton 	Community College 	Federation
of 	Teachers, 	AFT 	Local 	3486, 	AFL-CIO 	v. 	Compton 	Community
College 	District, 	supra, 	165 	Cal.App.3d 	82, 	92-93; 	Slayton 	v.
Pomona 	Unified 	Schbol 	District, 	161 	Cal.App.3d 	538,
90

548-549; 	Hartzell 	v. 	Connell, 	supra, 	35 	Cal.3d 	899, 	906-911;
Serrano 	v. 	, 	supra, 	5 	Cal.3d 	584, 	595-596, 	605-610; 	In 	re
~.=..;,:.~' 	supra, 	195 	Cal.App.2d 	683, 	686 	687.)
We 	may 	not 	presume 	that 	the 	Legislature 	would 	statutorily
authorize 	public 	school 	employees 	to 	engage 	in 	concerted
activities, 	such 	as 	a 	strike, 	which 	could 	violate 	the
constitutional 	and 	statutory mandates 	concerning 	the 	operation
of 	the 	public 	schools 	and 	the 	constitutional 	rights 	of
California's 	children 	to 	attend 	and 	receive 	their 	education.
For 	if 	the 	Legislature 	were 	to 	grant 	public 	school 	employees
the 	right 	to 	strike, 	then 	public 	school 	employees 	could
lawfully 	engage 	in work 	stoppages 	which 	interfere with 	and
disrupt 	the 	operation 	of 	the 	public 	schools. 	And, 	if 	public
school 	employees 	may 	lawfully 	engage 	in 	a 	work 	stoppage 	for 	one
day, 	they 	may 	lawfully 	extend 	it 	to 	one week; 	and, 	if 	a 	week,
then 	a 	month; 	and, 	if 	a 	month, 	then 	two 	months; 	and 	so 	on.
However, 	any 	such 	interference 	and 	disruption 	in 	the 	operation
of 	the 	public 	schools 	directly 	contravenes 	the 	constitutional
and 	statutory mandates 	concerning 	the 	operation 	of 	the 	schools
and 	the 	constitutional 	rights 	of 	the 	children. 	(Cal. 	Const.,
art. 	IX; 	Ed. 	Code, 	secs. 	41420, 	48200-48324; 	Hartzell 	v.
Connell, 	supra, 	36 	Cal.3d 	899, 	906-911; 	Serrano 	v.
supra, 	5 	Cal.3d 	584, 	595-596, 	605-610; 	Slayton 	v. 	Pomona
Unified 	School 	District, 	supra, 	161 	Cal.App.3d 	538, 	548;
California 	Teachers 	Association 	v. 	Board 	of 	Education, 	Glendale
Unified 	School 	District, 	supra, 	109 	Cal.App.3d 	738, 	744.)
91

Case 	law 	has 	firmly 	established 	that, 	even where 	the
operation 	of 	the 	schools 	is 	constitutionally 	defective 	due 	to
racial 	or 	financial 	discrimination, 	schools 	must 	nevertheless
remain 	in 	operation 	and 	continue 	to 	provide 	services 	without
inter 	rence 	or 	disruption 	while 	the 	discrimination 	is 	being
remedied. 	(Serrano 	v. 	Priest, 	supra, 	5 	Cal.3d 	584, 	619;
Crawford 	v. 	Board 	of 	Education 	of 	the 	City 	of 	Los 	Angeles,
supra, 	17 	Cal.3d 	280; 	N.A.A.C.P. 	v. 	San 	Bernardino 	City Unified
School 	District 	(1976) 	17 	Cal.3d 	311; 	People 	v. 	Serna 	(1977)
71 	Cal.App.3d 	229, 	233, 	hg. 	den.) 	This 	is 	due 	to 	the
preeminent 	importance 	of 	the 	uninterrupted 	and 	continued
operation 	of 	public 	schools 	to 	the 	constitutional 	rights 	of 	the
students 	and 	the 	welfare 	of 	the 	people 	of 	this 	State.
Certainly, 	no 	less 	is 	true 	when 	an 	unresolved 	labor 	dispute
threatens 	such 	an 	interruption 	or 	interference. 	(California
v. 	Oxnard 	Elementary 	Schools,
supra, 	272 	Cal.App.2d 	514, 	532, 	539.)
Nor 	may 	this 	Board, 	should 	it 	believe 	that 	the 	right 	to
strike 	is 	a 	necessary 	adjunct 	to 	meaningful 	collective
bargaining 	in 	the 	public 	sector, 	insert 	such 	an 	omitted 	right
into 	EERA 	under 	the 	guise 	of 	statutory 	interpretation 	and
rewrite 	the 	statute 	to 	conform 	to 	an 	assumed 	legislative
intention 	that 	does 	not 	appear 	in 	the 	language 	of 	the 	statute.
This 	is 	particularly 	so 	in 	the 	instant 	matter 	where 	the
Legislature 	has 	not 	only 	intentionally 	omitted 	the 	"concerted
activities" 	right 	from 	the 	statute 	but 	has 	also 	simultaneously
92

enacted 	EERA 	section 	3549 	which 	statutorily 	proscribes 	this
Board 	from 	construing 	or 	interpreting 	the 	enactment 	of 	EERA's
provisions 	so 	as 	to 	afford 	such 	a 	right 	to 	public 	school
employees. 	v. 	Public
Employment 	Relations 	Board 	& Laborers 	Local 	1276, 	LIUNA,
AFL-CIO 	(1985) 	168 	Cal.App.3d 	937, 	942, 	944-945; 	Bailey 	v.
Superior 	Court, 	supra, 	19 	Cal.3d 	970, 	977-978; 	Estate 	of
~t=<..±_-=-=-' 	supra, 	14 	Cal.3d 	831, 	838; 	Signal 	Oil 	& Gas 	Co. 	v.
Bradbury, 	supra, 	183 	Cal.App.2d 	40, 	51; 	Cadiz 	v. 	Agricultural
Labor 	Relations 	Board 	(1979) 	92 	Cal.App.3d 	365, 	371-372,
375-377, 	hg. 	den.; 	Kaiser 	Steel 	Corp. 	v. 	County 	of 	Solano
(1979) 	90 	Cal.App.3d 	662, 	667, 	hg. 	den.; 	v. 	United
Pacific 	Insurance 	Co., 	~~=' 	53 	Cal.App.3d 	1, 	7-8; 	Vallerga 	v.
Department 	of 	Alcoholic 	Beverage 	Control 	(1959) 	53 	Cal.2d 	313,
318; 	Rowan 	v. 	City 	of 	San 	Francisco 	(1966) 	244 	Cal.App.2d 	308,
314, 	hg. 	den.; 	v. 	Waters 	(1975) 	51 	Cal.App.3d 	69, 	73;
People 	v. 	(1950) 	35 	Cal.2d 	471, 	475; 	People 	v. 	One 	1940
Ford V8 	Coupe 	(1950) 	36 	Cal.2d 	471, 	475; 	Seaboard 	Acceptance
Corp. 	v. 	(1931) 	214 	Cal. 	361, 	369; 	Richardson 	v.
San 	Diego 	(1961) 	193 	Cal.App.2d 	648, 	650-651, 	hg. 	den.;
v. 	Pitchess 	(1971) 	5 	Cal.3d 	258, 	282; 	Shaughnessy v.
Wilsona 	School 	District 	of 	Los 	Angeles 	County 	(1972)
29 	Cal.App.3d 	742, 	749; 	Orlandi 	v. 	State 	Personnel 	Board 	(1968)
263 	Cal.App.2d 	32, 	36-37; 	v. 	Enstad 	(1981)
122 	Cal.App.3d 	641, 	653; 	v. 	Eagle 	Star 	Insurance 	Co.
(1963) 	211 	Cal.App.2d 	602, 	605; 	Kirkwood 	v. 	Bank 	of 	America
93

(1954) 	43 	Cal.2d 	333, 	341; 	and 	see Vogel 	v. 	County 	of
Los 	Angeles 	(1967) 	68 	Cal.2d 	18, 	25-26; 	Goins 	v. 	Board 	of
Pension 	Commissioners 	(1979) 	96 	Cal.App.3d 	1005, 	1009 	1010, 	hg.
den.; 	In 	re 	W.R.W. 	(1971) 	17 	Cal.App.3d 	1029, 	1032-1033;
Buss 	v. 	J. 	O. 	Martin 	Co. 	(1966) 	241 	Cal.App.2d 	123, 	132-133;
MacLead 	v. 	City 	of 	Los 	Altos 	(1960) 	182 	Cal.App.2d 	364, 	369i
Code 	Civ. 	Proc., 	sec. 	1858.)
From 	the 	foregoing, 	it 	is 	manifest 	that 	the 	Legislature 	has
not 	authorized 	nor 	granted 	to 	public 	school 	employees 	the 	right
to 	engage 	in 	strikes 	for 	the 	purpose 	of 	obtaining 	their
collective 	bargaining 	goals 	or 	for 	other 	mutual 	aid 	or
protection 	purposes, 	and 	that 	any 	such 	strikes 	or 	concerted
activities 	are 	not 	protected 	by EERA.
Prior 	Board 	Decisions
Earlier 	decisions 	of 	this 	Board 	have 	held 	that 	an 	"economic
strike" 19 engaged 	in 	prior 	to 	the 	completion 	of 	statutory
impasse 	procedures 	violates 	EERA 	subsections 	3543.6(c) 	and 	(d),
since 	it 	constitutes 	a 	refusal 	to 	negotiate 	in 	good 	faith.
(Fresno 	Unified 	School 	District 	(1982) 	PERB 	Decision 	No. 	208,
pp. 	9-14; 	Westminster 	School 	District 	(1982) 	PERB 	Decision
No. 	277, 	pp. 	14-17.)
PERB 	has 	not 	yet 	directly 	ruled 	on 	whether 	public 	school
19see 	discussion, 	infra, 	at 	pages 	123-125 	for 	definitions
of 	pre-impasse 	and 	post-impasse 	economic 	strikes 	and 	unfair
practice 	strikes.
94

employees 	have 	the 	right--and 	thereby 	the 	concomitant
protection--under 	EERA 	to 	engage 	in 	economic 	strikes 	after
statutory 	impasse 	procedures 	have 	been 	exhausted. 	(San 	Ramon
Valley Unified 	School 	District 	(1984) 	PERB 	Order 	No. 	IR-46,
p. 	10; 	Modesto 	City 	Schools 	(1983) 	PERB 	Decision 	No. 	291,
p. 	64, 	fn. 	35.) 	PERE 	has 	ruled 	that 	"unfair 	practice 	strikes"
engaged 	in 	by 	public 	school 	employees 	in 	response 	to 	alleged
unfair 	practices 	by 	public 	school 	employers 	are 	rights
authorized 	by 	the 	Legislature 	in 	EERA 	section 	3543 	and 	are
protected 	by EERA 	regardless 	of 	when 	they may 	occur 	in 	the
bargaining 	process. 	(Modesto 	City 	Schools, 	supra, 	PERB
Decision 	No. 	291; 	San 	Ramon Valley Unified 	School 	District,
supra, 	PERE 	Order 	No. 	IR-46; 	and 	see 	Fresno 	Unified 	School
District, 	supra, 	PERB 	Decision 	No. 	208; 	Westminster 	School
District, 	supra, 	PERE 	Decision 	No. 	277; 	Rio 	Hondo 	Community
College 	District 	(1983) 	PERE 	Decision 	No. 	292.)
In Modesto 	City 	Schools, 	supra, 	PERB 	Decision 	No. 	291, 	this
Board 	held 	that 	EERA 	section 	3543 	authorized 	work 	stoppages
(strikes) 	by 	public 	school 	employees. 	After 	concluding 	that
there 	was 	no 	statutory 	language 	in 	EERA directly 	prohibiting
strikes, 	this 	Board 	stated:
Even 	though 	EERA does 	not 	prohibit 	strikes,
the 	Board 	cannot 	hold 	that 	a 	work 	stoppage
is 	protected 	unless 	there 	is 	language 	in
EERA which 	actually 	authorizes 	such 	a
decision. 	We 	find 	that 	there 	is.
Neither 	the 	NLRA 	or 	section 	923 	of 	the 	Labor
Code 	contain 	plain 	and 	explicit 	language
permitting 	strikes, 	yet 	the 	right 	of
employees 	covered 	by 	these 	statutes 	to
95

strike 	is 	protected. 	As 	the 	Court 	points
out 	in 	San 	Diego 	Teachers 	Association,
supra, 	at 	p. 	6, 	and 	as 	the 	U.S. 	Supreme
Court 	has 	held 	pursuant 	to 	the 	NLRA, 	a
legislative 	"declaration 	that 	workers 	are 	to
be 	free 	from 	employer 	interference 	in
'concerted 	activities 	... 	or 	other 	mutual
aid 	or 	protection' 	is 	generally 	understood
to 	confer 	a 	right 	to 	strike." 	(See, 	e.g.,
v. 	Mackay Radio 	& Telegraph 	Co. 	(1938)
304 	U.S. 	333 	[2 	LRRM 	610]; 	NLRB 	v. 	Thayer
Co. 	(ls-t 	Cir. 	1954) 	213 	F.2d 	748 	[34 	LRRM
2250], 	cert. 	den. 	(1954) 	348 	U.S. 	883
[35 	LRRM 	2100] .)
EERA 	contains 	no 	reference 	to 	concerted
activities. 	It 	does, 	however, 	in 	section
3543, 	guarantee 	public 	school 	employees 	the
right, 	free 	from 	employei 	interference, 	"to
form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing .... "
The 	only 	difference we 	find 	between 	the
right 	to 	engage 	in 	concerted 	action 	for
mutual 	aid 	and 	protection 	and 	the 	right 	to
form, 	join 	and 	participate 	in 	the 	activities
of 	an 	employee 	organization 	is 	that 	EERA
uses 	plainer 	and 	more 	universally 	understood
language 	to 	clearly 	and 	directly 	authorize
employee 	participation 	in 	collective 	actions
traditionally 	related 	to 	the 	bargaining
process. 	Membership 	drives, 	meetings,
bargaining, 	leafletting 	and 	informational
picketing 	are 	activities 	which 	are, 	without
question, 	authorized 	by 	section 	3543.
Similarly, 	work 	stoppages 	must 	also 	qualify
as 	collective 	actions 	traditionally 	related
to 	collective 	bargaining. 	Thus, 	except 	as
limited 	by 	other 	provisions 	of 	EERA, 	section
3543 	authorizes 	work 	stoppages. 	(Modesto
City 	Schools, 	No. 	291, 	pp. 	61-62.)
Such 	an 	interpretation 	and 	administrative 	rewriting 	of 	EERA
section 	3543 	by 	this 	Board 	so 	as 	to 	insert 	into 	the 	statute 	a
right 	intentionally 	omitted 	by 	the 	Legislature 	ignores 	the
applicable 	and 	governing 	rules 	of 	statutory 	construction, 	the
96

relevant 	provisions 	of 	our 	Constitution 	and 	related 	statutes,
the 	proscription 	of 	EERA 	section 	3549, 	and 	the 	applicable
appellate 	decisions. 	We 	must 	assume 	"that 	the 	Legislature was
cognizant 	of 	the 	correct 	meaning 	and 	use 	of 	the 	terms 	and 	that
it 	drafted 	its 	enactment 	in 	the 	light 	of 	the 	code 	provisions
and 	decisions 	of 	the 	courts 	of 	this 	state 	relating 	thereto."
(Anderson 	v. 	I. 	M. 	Jameson Corp., 	supra, 	7 	Cal.2d 	60, 	67;
Estate 	of 	McDill, 	supra, 	14 	Cal.3d 	831, 	837-839; 	Bailey v.
Superior 	Court, 	supra, 	19 	Cal.3d 	970, 	977-978, 	fn. 	10;
Fuentes 	v. 	Workers' 	Compensation Appeals 	Board, 	supra,
16 	Cal.3d 	1, 	7; 	Keeler 	v. 	Superior 	Court, 	gupra, 	2 	Cal.3d 	619,
625; 	Buckley v. 	Chadwick, 	supra, 	45 	Cal.2d 	183, 	200; 	Sutter
Hospital 	v. 	City 	of 	Sacramento, 	supra, 	39 	Cal.2d 	33, 	38.) 	The
aforesaid 	is 	particularly 	true 	where, 	as 	here, 	the 	use 	of
particular 	words 	or 	phrases 	has 	acquired 	a 	particular 	meaning
in 	law 	and 	the 	Legislature 	has 	placed 	them 	in 	some 	statutes 	but
omitted 	them 	from 	others. 	(Los 	Angeles 	Metropolitan 	Transit
Authority 	v. 	Brotherhood 	of 	Railroad 	Trainmen, 	supra, 	54 	Cal.2d
684, 	689; 	Signal 	Oil 	& Gas 	Co. 	v. 	Bradbury, 	supra,
183 	Cal.App.2d 	40, 	51.)
On 	point 	is 	the 	recent 	decision 	in 	Regents 	of 	the
University 	of 	California 	v. 	Public 	Employment 	Relations 	Board 	&
Laborers 	Local 	1276, 	LIUNA, 	AFL-CIO, 	supra, 	168 	Cal.App.3d 	937,
involving 	an 	issue 	of 	whether 	the 	Higher 	Education
Employer-Employee 	Relations 	Act 	(HEERA 	- 	Gov. 	Code, 	sec. 	3560
et 	seq.) 	had 	granted 	to 	"nonexclusive" 	employee 	organizations
97

the 	right 	to 	advance 	notice 	and 	discussion 	of 	employer
work-rule 	changes. 	This 	Board 	interpreted 	the 	statute 	so 	as 	to
find 	such 	a 	right. 	The 	Court 	of 	Appeal 	reversed 	and 	set 	the
Board's 	decision 	aside:
The 	University 	contends 	. 	. 	HEERA 	contains
no 	language 	conferring 	a 	right 	of
representation 	upon 	nonexclusive
representatives. 	The 	University 	suggests
that 	the 	Board, 	in 	interpreting 	HEERA,
"divines 	an 	implied 	legislative 	intent 	to
include 	that 	which was 	omitted 	from 	HEERA."
The 	University 	argues 	that 	an 	interpreter 	of
a 	statute, 	whether 	a 	court 	or 	an
administrative 	agency, 	cannot 	supply what
the 	Legislature 	has 	omitted 	in 	an 	attempt 	to
make 	the 	statute 	conform 	to 	a 	presumed
intent 	of 	the 	Legislature 	which 	is 	not
expressed 	in 	the 	statutory 	language .
. 	the 	Board 	reasoned 	. 	. 	that 	HEERA's
language 	and 	overall 	statutory 	scheme
indicated 	that 	the 	Legislature 	intended 	to
expand 	representational 	rights, 	not 	to
"consign 	nonexclusive 	representatives 	to 	a
state 	of 	powerless 	limbo." 	The 	Board 	found
that 	HEERA's 	express 	provisions 	indicated 	a
legislative 	intent 	to 	preserve
representational 	rights 	for 	the 	employees
and 	employee 	organizations 	until 	such 	time
as 	an 	exclusive 	representative 	was 	selected.
We 	agree 	with 	the 	Board's 	conclusion 	that 	a
non-exclusive 	union 	may 	play 	a 	significant
role 	before 	selections 	of 	an 	exclusive
representative. 	We 	disagree 	with 	the
Board's 	creation 	of 	a 	"right 	to 	represent"
where 	the 	Legislature 	failed 	to 	establish
such 	a 	right.
HEERA 	is 	significant 	not 	so 	much 	for 	what 	it
provided 	as 	for 	what 	was 	omitted.
Beginnning 	in 	1971 	with 	the 	George 	Brown
Act, 	the 	Legislature 	established 	a 	pattern
of 	providing 	for 	the 	em~~oyees' 	rights 	and

the 	employee 	organizations' 	rights 	in 	two
successive 	code 	sections: 	first, 	the
employees' 	right 	to 	". 	. 	form, 	join, 	and
participate 	in 	the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	for 	the
purpose 	of 	representation 	on 	all 	matters 	of
employer-employee 	relations. 	." 	(sec.
3527); 	and 	then, 	in 	the 	next 	code 	section,
that 	the 	"[e]mployee 	organizations 	shall
have 	the 	right 	to 	represent 	their 	members 	in
their 	employment 	relations, 	." 	(sec.
3528.) 	This 	quoted 	language 	was 	used 	again
in 	sequential 	code 	sections 	in 	EERA 	(adopted
in 	1975) 	(secs. 	3543, 	3543.1) 	and 	in 	SEERA
(adopted 	in 	1977) 	(secs. 	3515, 	3515.5). 	In
each 	case 	other 	portions 	of 	the 	sections
differed, 	but 	the 	operative 	langauge 	quoted
above 	was 	identical.
HEERA, 	adopted 	one 	year 	after 	SEERA, 	used
the 	quoted 	language 	to 	establish 	the 	right
of 	employees 	to 	form, 	join, 	and 	participate
in 	employee 	organizations 	(sec. 	3565), 	but
omitted 	entirely 	the 	provision 	establishing
the 	employee 	organization's 	right 	to
represent. 	Later 	in 	the 	Act, 	the
Legislature 	revealed 	that 	it 	had 	not
forgotten 	the 	formula 	for 	its 	three 	previous
public 	employment 	enactments, 	because 	it
again 	used 	the 	quoted 	language 	from 	the
George 	Brown Act, 	amending 	it 	to 	apply 	to
"supervisory 	employees." 	It 	established
both 	the 	supervisory 	employees' 	right 	to
"form, 	join, 	and 	participate" 	(sec. 	3581.1)
and 	the 	organization's 	right 	to 	represent
supervisory 	employees 	in 	higher 	education
(sec. 	3581.2).
We 	cannot 	agree 	with 	the 	Board's 	conclusion
that 	HEERA's 	ommission 	of 	a 	"right 	to
represent" 	was 	without 	significance. 	It 	is
true 	that 	we 	must 	accord 	great 	respect 	to 	an
administrative 	agency's 	interpretation 	of
the 	statute 	it 	is 	charged 	with 	enforcing
[citations]. 	But 	upholding 	such 	a 	reading
would 	go 	well 	beyond 	respect 	for 	the
agency's 	interpretation. 	It 	would 	authorize
the 	Board 	to 	rewrite 	the 	statute 	to 	suit 	its
notion 	of 	what 	the 	Legislature 	must 	have
intended 	to 	say 	about 	organizational
rights. 	It 	would 	do 	this 	in 	the 	face 	of
99

strong 	evidence 	of 	a 	contrary 	legislative
intent: 	the 	Legislature's 	use 	of 	the 	same
constructions 	in 	four 	different 	pairs 	of
statutes, 	and 	its 	failure 	to 	use 	that
construction 	in 	the 	statute 	under 	scrutiny.
(168 	Cal.App.3d 	at 	941 	945, 	emphasis 	added.)
Likewise, 	in 	Westminster 	School 	District 	of 	Orange
County 	v. 	Superior 	Court 	& Westminster 	Teachers 	Association,
supra, 	28 	Cal.App.3d 	120, 	the 	Court 	of 	Appeal 	had 	before 	it 	a
provision 	of 	the 	Winton Act 	involving 	the 	formation 	of 	a
three-member 	"persistent 	disagreement 	committee" 	as 	authorized
by 	former 	Education 	Code 	section 	13087.1. 	To 	aid 	in 	the
resolution 	of 	persistent 	disagreements 	between 	a 	school
district 	and 	its 	employees, 	the 	statute 	prescribed 	that 	each
party 	(the 	school 	district 	and 	the 	employee 	council) 	would
designate 	a 	committee 	member 	and 	the 	two 	designated 	members
would 	then 	select 	the 	third 	member. 	The 	statute 	provided 	no
procedure 	for 	selecting 	the 	third 	member 	if 	the 	two 	designees
could 	not 	agree. 	In 	Westminster, 	the 	two 	designees 	could 	not
agree 	and 	the 	employee 	council 	sought 	to 	have 	the 	superior
court 	appoint 	the 	third 	member, 	which 	the 	superior 	court 	did.
On 	appeal, 	the 	employee 	council 	contended 	that 	the 	statute
created 	a 	substantive 	right 	to 	the 	formation 	of 	a 	persistent
disagreement 	committee 	and 	that 	if 	the 	parties 	could 	not 	agree
on 	the 	third 	member 	of 	the 	committee 	that 	"the 	court 	must 	have
the 	power 	to 	fashion 	a 	remedy 	for 	the 	appointment 	of 	a 	third
member 	under 	such 	circumstances 	because, 	otherwise, 	the
statutorily 	created 	right 	would 	be 	meaningless." 	(28 	Cal.App.3d
100

at 	127). 	In 	rejecting 	the 	employee 	council's 	contention 	and
reversing 	the 	superior 	court, 	the 	Court 	of 	Appeal 	set 	forth:
Having 	carefully 	considered 	the 	problem 	of
employment 	relations 	in 	the 	public 	school
systems, 	the 	Legislature 	has 	enacted 	the
Winton 	Act 	as 	a 	unique, 	experimental
procedure 	representing 	a 	tentative 	solution
[citation]. 	The 	act 	provides 	for 	the
selection 	of 	a 	persistent 	disagreement
committee 	of 	three 	members 	by 	agreement 	of
the 	parties 	and 	their 	representatives. 	(Sec.
13087.1.) 	Obviously, 	it 	was 	foreseeable 	to
the 	Legislature 	that 	the 	parties 	might 	not
be 	able 	to 	agree 	upon 	the 	selection 	of 	the
third 	member 	of 	such 	committee 	[citations],
yet 	the 	Legislature 	has 	provided 	no
procedure 	for 	imposing 	on 	either 	party 	a
member 	of 	such 	committee 	selected 	by 	the
court. 	Both 	the 	philosophy 	underlying 	the
act 	and 	the 	Legislature's 	refusal 	to 	adopt
measures 	designed 	to 	establish 	such 	a
procedure 	persuade 	us 	that 	the 	omission was
intentional, 	not 	inadvertent. 	It 	is
inappropriate 	for 	the 	courts 	to 	alter 	a
comprehensive, 	unique, 	experimental 	scheme
enacted 	by 	the 	Legislature 	by 	interjecting
therein 	procedures 	intentionally 	omitted 	by
the 	Legislature. 	(28 	Cal.App.3d 	at 	p. 	129.)
We 	must 	assume 	that 	the 	Legislature 	knew 	what 	it 	was 	saying
and 	meant 	what 	it 	said; 	that 	the 	Legislature 	knew what 	it 	was
authorizing 	in 	EERA 	section 	3543, 	and 	knew what, 	by 	omission,
it 	was 	not 	authorizing. 	The 	Legislature 	knew 	the 	"formula" 	or
"16-word'' 	language 	to 	use 	if 	it 	wanted 	to 	authorize 	public
school 	employees 	to 	engage 	in 	strikes. 	Had 	this 	been 	its
intent, 	it 	would 	have 	given 	them 	the 	right 	to 	engage 	"in 	other
concerted 	activities 	for 	the 	purpose 	of 	collective 	bargaining
or 	other 	mutual 	aid 	or 	protection." 	(Los 	Angeles 	Metropolitan
Transit 	Authority 	v. 	Brotherhood 	of 	Railroad 	Trainmen, 	supra,
101

54 	Cal.2d 	684, 	687-689.) 	It 	did 	not 	do 	so. 	Furthermore, 	the
Legislature's 	intent 	in 	this 	respect 	is 	further 	emphasized 	and
reinforced 	by 	its 	simultaneous 	enactment 	of 	EERA 	section 	3549,
which 	expressly 	prohibits 	this 	Board 	from 	construing 	EERA 	so 	as
to 	find 	such 	a 	right. 	We 	may 	not 	by 	administrative 	interpreta-
tion 	insert 	into 	the 	statute 	that 	which 	the 	Legislature 	has
omitted. 	(Regents 	of 	the 	University 	of 	California 	v. 	Public
Employment 	Relations 	Board 	& Laborers 	Local 	1276, 	LIUNA,
AFL-CIO, 	supra, 	168 	Cal.App.3d 	937, 	942-945; 	Bailey 	v. 	Superior
Court, 	supra, 	19 	Cal.3d 	970, 	977-978; 	Estate 	of 	McDill, 	supra,
14 	Cal.3d 	831, 	838; 	Signal 	Oil 	& Gas 	Co. 	v. 	Bradbury, 	supra,
183 	Cal.App.2d 	40, 	51; 	Cadiz 	v. 	Agricultural 	Labor 	Relations
Board, 	supra, 	92 	Cal.App.3d 	365, 	371-372, 	375-377; 	Kaiser 	Steel
Corp. 	v. 	County 	of 	Solano, 	supra, 	90 	Cal.App.3d 	662,667;
Hennigan 	v. 	United 	Pacific 	Insurance 	Co., 	supra, 	53 	Cal.App.3d
1, 	7-8; 	Vallerga 	v. 	Department 	of 	Alcoholic 	Beverage 	Control,
supra, 	53 	Cal.2d 	313, 	318; 	Rowan 	v. 	City 	of 	San 	Francisco,
supra, 	244 	Cal.App.2d. 	308, 	314; 	Hutchins 	v. 	Waters, 	supra,
51 	Cal.App.3d 	69, 	73; 	People 	v. 	Knowles, 	supra, 	35 	Cal.2d 	471,
475; 	People 	v. 	One 	1940 	Ford VB 	Coupe, 	supra, 	36 	Cal.2d 	471,
475; 	Seaboard 	Acceptance 	Corp. 	v 	Shay, 	supra, 	214 	Cal. 	361,
369; 	Richardson 	v. 	City 	of 	San 	Diego, 	supra, 	193 	Cal.App.2d
648, 	650-651; 	Blair 	v. 	Pitchess, 	supra, 	5 	Cal.3d 	258, 	282;
Shaughnessy 	v. 	Wilsona 	School 	District 	of 	Los 	Angeles 	County,
supra, 	29 	Cal.App.3d 	742, 	749; 	Orlandi 	v. 	State 	Personnel
Board, 	supra, 	263 	Cal.App.2d 	32, 	36-37; 	Wilcox 	v. 	Enstad,
102

supra, 	122 	Cal.App.3d 	641, 	653; 	Wisdom v. 	Eagle 	Star 	Insurance
Co., 	supra, 	211 	Cal.App.2d 	602, 	605; 	Kirkwood 	v. 	Bank 	of
America, 	, 	43 	Cal.2d 	333, 	341; 	Riebe 	v. 	Budget 	Finance
Corp. 	(1968) 	264 	Cal.App.2d 	576, 	585; 	Woodmansee 	v. 	Lowery
(1959) 	167 	Cal.App.2d 	645, 	652, 	hg. 	den.; 	and 	see 	v.
County 	of 	Los 	Angeles, 	supra, 	68 	Cal.2d 	18, 	25-26; 	v.
Board 	of 	Pension 	Commissioners, 	supra, 	96 	Cal.App.3d 	1005,
1009 	1010; 	In 	re 	W.R.W., 	supra, 	17 	Cal.App.3d 	1029, 	1032 	1033;
Buss 	v. 	J. 	O. 	Martin 	Co., 	, 	241 	Cal.App.2d 	123, 	132-133;
MacLead 	v. 	City 	of 	Los 	Altos, 	supra, 	182 	Cal.App.2d 	364, 	369;
Code 	Civ. 	Proc., 	sec. 	1858.)
Aside 	from 	its 	failure 	to 	adhere 	to 	the 	applicable 	rules 	of
statutory 	construction, 	the 	Modesto 	City 	Schools 	decision 	has
other 	analytical 	flaws. 	First, 	Modesto 	City 	Schools 	adopted 	an
initial 	premise 	that 	"[n]either 	the 	NLRA 	or 	section 	923 	of 	the
Labor 	Code 	contain 	plain 	and 	explicit 	language 	permitting
strikes, 	yet 	the 	right 	of 	employees 	covered 	by 	these 	statutes
to 	strike 	is 	protected." 	This 	initial 	premise 	failed 	to
recognize 	the 	long-standing 	appellate 	decisions 	holding 	that
the 	specific 	"16 	words" 	language 	granting 	employees 	the 	right
to 	engage 	"in 	other 	concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection" 	is 	the
Legislature's 	explicit 	term 	or 	proviso 	for 	the 	right 	to
strike. 	(Los 	Angeles 	Metropolitan 	Transit 	Authority 	v.
Brotherhood 	of 	Railroad 	Trainmen, 	supra, 	54 	Cal.2d 	684,
687-689; 	United 	Auto 	Workers 	v. 	O'Brien 	(1950) 	339 	U.S. 	454,
103

456-457; 	Amalgamated 	Association 	of 	Street, 	Electric 	Railway 	&
Motor 	Coach 	Employees 	v. 	Wisconsin 	Employment 	Relations 	Board,
supra, 	340 	U.S. 	383, 	389-390; 	v. 	Marinship 	Corp., 	supra,
25 	Cal.2d 	721, 	728-729; 	Park 	& Tilford 	Import 	Corp. 	v.
International 	Brotherhood 	of 	Teamsters, 	supra, 	27 	Cal.2d 	599,
603-613; 	G. 	C. 	Breidert 	Co. 	v. 	Sheet 	Metal 	Workers
~~~~'-""-"~"'-=-_.o..:;~~~-"-=~' 	supra, 	129 	Cal.App.2d 	633, 	638 	639.)
Second, 	not 	finding 	any 	right 	to 	strike 	or 	right 	to 	engage
in 	"concerted 	activities" 	language 	in 	EERA, 	this 	Board 	in
Modesto 	City 	Schools 	then 	asserted 	that 	the 	only 	difference
between 	the 	right 	to 	engage 	"in 	other 	concerted 	activities 	for
the 	purpose 	of 	collective 	bargaining 	or 	other 	mutual 	aid 	or
protection" 	and 	Government 	Code 	section 	3543's 	right 	"to 	form,
join, 	and 	participate 	in 	the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	. 	. 	" 	is 	that 	the 	latter
language 	is 	simply 	"plainer 	and 	more 	universally 	understood
language 	to 	clearly 	and 	directly 	authorize 	employee
participation 	in 	collective 	actions 	traditionally 	related 	to_
the 	bargaining 	process." 	And, 	since 	"work 	stoppages 	must 	also
qualify 	as 	collective 	actions 	traditionally 	related 	to
collective 	bargaining," 	Government 	Code 	"section 	3543
authorizes 	work 	stoppages." 	(Modesto 	City 	Schools, 	supra, 	PERB
Decision 	No. 	291, 	pp. 	61-62.) 	However, 	Modesto 	City 	School's
quote 	omitted 	a 	portion 	from 	the 	section 	3543 	right: 	"to 	form,
join, 	and 	participate 	in 	the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	.";that 	is, 	it 	is 	"for
104

the 	purpose 	of 	representation 	on 	all 	matters 	of
employer-employee 	relations." 	(Gov. 	Code, 	sec. 	3543, 	emphasis
added.) 	Moreover, 	the 	quoted 	language 	is 	identical 	to, 	and
comes 	from, 	the 	rights 	language 	contained 	in 	the 	predecessor
Winton 	Act 	(Stats. 	1965, 	ch. 	2011, 	amended 	Stats. 	1970, 	ch.
1412; 	former 	Ed. 	Code, 	secs. 	13080-13088) 	in which 	former
Education 	Code 	section 	13082 	prescribed:
Except 	as 	otherwise 	provided 	by 	the
Legislature, 	public 	school 	employees 	shall
have 	the 	right 	to 	form, 	join 	and 	participate
in 	the 	activities 	of 	employee 	organizations
of 	their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations.
(Emphasis 	added.)
Thus, 	the 	"plainer 	and 	more 	universally 	understood 	language"
relied 	on 	by Modesto 	City 	Schools 	as 	authorizing 	work 	stoppages
by 	public 	school 	employees, 	comes 	in 	haec 	verba 	from 	the 	rights
granted 	to 	public 	school 	employees 	in 	the 	predecessor 	1965
Winton 	Act, 	which 	did 	not 	even 	provide 	a 	right 	to 	engage 	in
collective 	bargaining, 	much 	less 	a 	right 	to 	engage 	in work
stoppages. 	(San Mateo 	City 	School 	District 	v. 	Public
Employment 	Relations 	Board, 	supra, 	33 	Cal.3d 	850, 	860;
California 	Federation 	of 	Teachers, 	AFL-CIO 	v. 	Oxnard 	Elementary
Schools, 	supra, 	272 	Cal.App.2d 	514, 	519-540; 	Westminster 	School
District 	of 	Orange 	County v. 	Superior 	Court 	and 	Westminster
Teachers 	Association, 	supra, 	28 	Cal.App.3d 	120; 	Berkeley
Teachers 	Association 	v. 	Board 	of 	Education 	of 	Berkeley Unified
School 	District, 	supra, 	254 	Cal.App.2d 	660, 	671.)
105

This 	Board's 	decision 	in Modesto 	City 	Schools, 	supra, 	PERE
Decision 	No. 	291 	is 	clearly 	incorrect 	and 	is 	overruled 	insofar
as 	it 	interprets 	EERA 	section 	3543 	as 	authorizing 	work
stoppages 	by 	public 	school 	employees 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection.
Likewise, 	San 	Ramon Valley Unified 	School 	District,
PERE 	Order 	No. 	IR-46 	is 	also 	incorrect 	and 	is 	overruled 	insofar
as 	it 	follows 	Modesto 	City Schools 	and 	holds 	that 	public 	school
employees 	have 	a 	protected 	right 	under 	EERA 	to 	engage 	in 	unfair
practice 	strikes. 	(San 	Ramon Valley Unified 	School 	District,
supra, 	pp. 	9-10.)
County 	Sanitation 	District 	No. 	2
In 	the 	recent 	tort 	case, 	County 	Sanitation 	District 	No. 	2
of 	Los 	Angeles 	v. 	Los 	Angeles 	County 	Employees 	Association,
Local 	660, 	SEIU, 	AFL-CIO 	(1985) 	38 	Cal.3d 	564
Sanitation), 	a 	local 	public 	agency 	employer 	had 	obtained 	a 	tort
damages 	judgment 	against 	a 	local 	public 	employee 	union 	for 	the
union's 	tortious 	involvment 	in 	a 	labor 	strike 	which 	had 	damaged
the 	public 	employer. 	In 	reversing 	the 	tort 	damages 	judgment, 	a
plurality 	of 	a 	divided 	and 	splintered 	court 	held 	that 	the
common 	law 	prohibition 	against 	public 	employee 	strikes 	should
no 	longer 	be 	recognized 	in 	California 	and, 	accordingly, 	that
public 	employee 	strikes 	are 	not 	tortious 	under 	California
common 	law.
106

Three 	members 	of 	the 	court, 	with 	the 	Chief 	Justice
concurring, 	formed 	the 	plurality 	opinion which 	concluded 	that
"the 	common 	law 	prohibition 	against 	public 	sector 	strikes
should 	not 	be 	recognized 	in 	this 	state" 	and 	"[c]onsequently,
strikes 	by 	public 	sector 	employees 	in 	this 	state 	as 	such 	are
neither 	illegal 	or 	tortious 	under 	California 	common 	law".
(38 	Cal.3d 	at 	592-93, 	emphasis 	added.) 	Two 	members 	of 	the
court, 	in 	a 	separate 	opinion, 	reversed 	the 	tort 	damages
judgment 	on 	the 	basis 	that 	peaceful 	strikes 	did 	not 	give 	rise
to 	a 	tort 	cause 	of 	action 	under 	existing 	California 	law 	and
that 	it 	was 	not 	necessary 	to 	reach 	the 	question 	of 	whether 	such
strikes 	were 	legal 	or 	illegal 	under 	California 	common 	law.
(38 	Cal.3d 	at 	592-593.) 	The 	Chief 	Justice, 	in 	a 	separate
opinion, 	contended 	that 	employees 	have 	a 	constitutional 	right
to .strike. 	(38 	Cal. 3d 	at 	593-609.) 	One 	Justice 	dissented 	from
all 	of 	the 	foregoing 	opinions. 	(38 	Cal.3d 	at 	609-613.)
In 	addressing 	the 	common 	law 	prohibition 	against 	public
employee 	strikes, 	the 	plurality 	opinion 	also 	considered 	the
Meyers-Milias-Brown 	Act 	(Gov. 	Code, 	secs. 	3500-3511) 	which 	by
statute--as 	compared 	to 	common 	law--deals 	with 	part 	of 	the
employment 	relations 	between 	local 	public 	agency 	employers 	and
local 	public 	employees. 	In 	concluding 	that 	the 	MMBA 	did 	not
expressly 	prohibit 	strikes 	by 	local 	public 	employees, 	County
Sanitation's 	plurality 	opinion was 	dealing 	with 	whether 	local
public 	employee 	strikes 	were 	prohibited 	and 	thus 	tortious,
under 	the 	statutory 	provisions 	of 	the 	MMBA. 	County 	Sanitation
107

did 	not 	deal 	with 	or 	determine 	whether 	the 	MMBA 	grants 	a 	right
to 	strike 	to 	local 	public 	employees, 	much 	less 	whether 	public
school 	employees 	have 	a 	right 	to 	strike 	under 	EERA 	and/or
whether 	public 	school 	employee 	strikes 	constitute 	unfair
practices 	under 	EERA.
But 	even 	though 	County 	Sanitation 	is 	neither 	applicable 	nor
controlling 	on 	the 	issue 	of 	whether 	public 	school 	employees
have 	a 	right 	to 	strike 	under 	EERA, 	it 	is 	still 	appropriate 	that
we 	examine 	the 	plurality 	opinion's 	analysis 	of 	what 	it 	deemed
the 	Legislature's 	position 	to 	be 	with 	respect 	to 	public
employee 	strikes, 	as 	well 	as 	the 	plurality's 	interpretation 	of
MMBA 	provisions 	which 	are 	similiar 	to 	EERA 	provisions. 	For, 	if
the 	plurality's 	reasoning 	is 	persuasive 	as 	to 	the 	Legislature's
position 	on 	public 	employee 	strikes, 	it 	could 	affect 	this
Board's 	interpretation 	of 	EERA.
Prior 	to 	the 	commencement 	of 	its 	common 	law 	discussion, 	the
plurality 	asserts 	that, 	except 	as 	to 	legislation 	regarding
firefighters,· the 	Legislature 	has 	chosen 	to 	remain 	silent 	as 	to
any 	general 	prohibition 	against 	public 	employee 	strikes
(38 	Cal.3d 	at 	571), 	that 	with 	respect 	to 	local 	public 	employees
the 	Legislature 	in 	enacting 	MMBA 	had 	left 	the 	issue 	"shrouded
in 	ambiguity" 	by 	intentionally 	avoiding 	the 	inclusion 	in MMBA
of 	any 	provision which 	could 	be 	construed 	as 	either 	a 	blanket
grant 	or 	prohibition 	of 	a 	right 	to 	strike 	(38 	Cal.3d 	at
572-573), 	and 	thus 	that 	"In 	the 	absence 	of 	clear 	legislative
directive 	on 	this 	crucial 	matter, 	it 	becomes 	the 	task 	of 	the
108

judiciary 	to 	determine 	whether, 	under 	the 	law, 	strikes 	by
public 	employees 	should 	be 	viewed 	as 	a 	prohibited 	tort."
(38 	Cal.3d 	at 	573, 	emphasis 	added.)
Upon 	judicially examining 	and 	judicially 	rejecting 	the
policy 	reasons 	advanced 	for 	the 	common 	law 	prohibitions 	against
public 	employee 	strikes 	(38 	Cal.3d 	at 	573-583), 	and 	after
reasserting 	that 	the 	Legislature 	has 	been 	silent 	(38 	Cal.3d 	at
584), 	the 	plurality 	opinion 	concludes 	"that 	the 	common 	law
prohibition 	against 	public 	sector 	strikes 	should 	not 	be
recognized 	in 	this 	state" 	and 	"[c]onsequently, 	strikes 	by
public 	sector 	employees 	in 	this 	state 	as 	such 	are 	neither
illegal 	nor 	tortious 	under 	California 	common 	law." 	(38 	Cal.3d
at 	585, 	emphasis 	added.) 	However, 	the 	plurality 	opinion 	places
a 	limiting 	condition 	on 	this 	judicial 	modification 	of 	common
. 	. 	strikes 	by 	public 	employees 	are 	not
unlawful 	at 	common 	law 	unless 	or 	until 	it 	is
clearly 	demonstrated 	that 	such 	a 	strike
creates 	a 	substantial 	and 	imminent 	threat 	to
the 	health 	or 	safety of 	the 	public.
(38 	Cal.3d 	at 	586, 	emphasis 	added.)
It 	is 	readily 	apparent 	that 	the 	plurality's 	judicial
reversal 	of 	the 	California 	common 	law 	prohibition 	against
public 	employee 	strikes 	was 	based 	on 	the 	plurality's 	assumption
that 	the 	Legislature 	has 	been 	as 	to 	either 	any 	general
authorization 	for, 	or 	prohibition 	against, 	public 	employee
strikes, 	and 	that 	the 	Legislature 	has 	not--on 	behalf 	of 	the
people--statutorily expressed 	itself 	on 	the 	right 	of 	public
109

employees 	to 	strike. 20
But, 	did 	the 	plurality 	opinion 	proceed 	from 	an 	invalid
premise 	as 	to 	the 	Legislature's 	silence? 	Has 	the 	Legislature
been 	silent?
Early 	in 	the 	plurality 	opinion, 	in 	referring 	to 	prior
decisions 	of 	the 	Supreme 	Court 	to 	show 	that 	the 	Supreme 	Court
itself 	had 	not 	ruled 	on whether 	public 	employee 	strikes 	were
lawful, 	the 	plurality 	opinion 	cited 	Los 	Angeles 	Metropolitan
Transit 	Authority 	v. 	Brotherhood 	of 	Railroad 	Trainmen, 	supra,
54 	Cal.2d 	684, 	687-688. 	After 	describing 	as 	"dictum" 	the
court's 	statement 	that 	"[i]n 	the 	absence 	of 	legislative
authorization 	public 	employees 	in 	general 	do 	not 	have 	the 	right
to 	strike, 	." 	the 	plurality 	then 	observed 	that 	Los 	Angeles
Metropolitan 	Transit 	Authority 	did 	hold 	"that 	a 	statute
affording 	public 	transit 	workers 	the 	right 	'to 	engage 	in 	other
concerted 	activities 	for 	the 	purpose 	of 	collectively 	bargaining
or 	other 	mutual 	aid 	or 	protection' 	granted 	these 	employees 	Q
right 	to 	strike." 	(38 	Cal.3d 	at 	570, 	emphasis 	added.) 	But 	in
20As 	discussed 	post, 	the 	judiciary may 	change 	or 	modify
the 	common 	law where 	the 	Legislature 	has 	been 	silent, 	provided
that 	the 	judicial 	change 	is 	not 	repugnant 	to 	or 	inconsistent
with 	the 	Constitution 	and 	statutes, 	and 	does 	not 	nullify
existing 	legislation 	or 	frustrate 	legitimate 	legislative
policy. 	(Civ. 	Code, 	sec. 	22.l; 	Ferguson 	v. 	Keays 	(1971)
4 	Cal.3d 	649, 	654; 	Rodriguez 	v. 	Bethlehem 	Steel 	Corp. 	(1974)
12 	Cal.3d 	382, 	394-395; 	Li 	v. 	Yellow 	Cab 	Co. 	(1975) 	13 	Cal.3d
804, 	814; 	Victory Oil 	Co. 	v. 	Hancock Oil 	Co. 	(1954)
125 	Cal.App.2d 	222, 	229, 	hg. 	den.; 	City 	of 	Rohnert 	Park 	v.
Superior 	Court 	(1983) 	146 	Cal.App.3d 	420, 	427-428; 	Lowman 	v.
Stafford 	(1964) 	226 	Cal.App.2d 	31, 	39, 	hg. 	den.; 	Corcoran 	v.
City 	of 	San Mateo 	(1953) 	122 	Cal.App.2d 	355, 	359, 	hg. 	den.)
110

later 	concluding 	that 	the 	Legislature 	had 	been 	silent, 	the
plurality 	inexplicably 	failed 	to 	remember 	the 	Supreme 	Court's
recognition 	in 	Los 	Angeles 	Metropolitan 	Transit 	Authority 	of
the 	Legislature's 	clear 	statutory 	grant 	of 	the 	right 	to
strike. 	Nor 	did 	the 	plurality 	recall 	the 	Supreme 	Court's
response 	in 	Los 	Angeles 	Metropolitan 	Transit 	Authority 	in
answer 	to 	the 	contention 	raised 	therein 	that 	the 	Legislature
had 	engaged 	in 	discriminatory 	classification 	by 	granting 	the
transit 	authority's 	public 	employees 	the 	right 	to 	strike 	while
statutorily withholding 	that 	right 	from 	public 	employees 	of
other 	transit 	systems. 	The 	Supreme 	Court 	had 	held 	that
differing 	circumstances 	faced 	by 	public 	employers 	would 	justify
the 	Legislature's 	granting 	or 	withholding 	of 	the
right 	to 	strike 	among 	various 	groups 	of 	public 	employees.
(54 	Cal.2d 	at 	694.)
This 	recognition 	by 	the 	Supreme 	Court 	in 	Los 	Angeles
Metropolitan 	Transit 	Authority, 	that 	the 	Legislature 	has
necessarily 	taken 	a 	selective 	rather 	than 	a 	general 	approach 	to
public 	employee 	strikes, 	was 	more 	fully 	elaborated 	upon 	in 	the
previously 	cited 	case 	(California 	Federation 	of 	Teachers,
AFL-CIO 	v. 	Oxnard 	Elementary 	Schools, 	, 	272 	Cal.App.2d
514) 	that 	addressed 	public 	school 	employee. rights 	under 	the
Winton Act 	(former 	Ed. 	Code, 	secs. 	13080-13088).
As 	cited 	earlier 	in 	this 	opinion, 	the 	court 	in 	Oxnard
reviewed 	the 	evolution 	of 	labor 	statutes 	in 	this 	state,
concluding 	that 	the 	Legislature's 	treatment 	of 	public 	employee
111

labor 	relations 	reflected 	its 	careful 	consideration 	of 	the
applicability 	of 	traditional 	private 	sector 	procedures, 	such 	as
collective 	bargaining, 	exclusive 	representation, 	and 	the 	right
to 	strike, 	to 	the 	relationship 	between 	public 	employees 	and
their 	employers. 	Not 	only did 	the 	Legislature 	evaluate 	the
appropriateness 	of 	these 	procedures 	for 	public 	employees
generally, 	but 	it 	also 	considered 	the 	"wide 	variety 	of
occupations 	and 	professions 	encompassed 	within 	the 	field 	of
public 	employment." 	The Winton Act, 	with 	its 	separate
treatment 	of 	public 	school 	employees, 	"evolved 	through 	a 	series
of 	enactments 	designed 	to 	regulate 	separately various 	aspects
of 	public 	employment." 	(Oxnard, 	supra, 	at 	p. 	522.) 	The 	court
then 	compared 	various 	acts, 	some 	of 	which 	granted 	the 	right 	to
strike, 	and 	some 	of 	which withheld 	it. 	In 	those 	in which 	the
Legislature 	did 	not 	grant 	the 	right 	to 	strike, 	it 	also
specifically 	stated 	that 	the 	Act 	shall 	not 	be 	interpreted 	so 	as
to 	make 	Labor 	Code 	section 	923 	applicable. 	The 	Winton Act 	fell
into 	this 	latter 	category. 	The 	court 	stated:
The 	California 	Legislature 	has 	clearly 	been
attempting 	to 	reconcile 	by 	selective
innovation 	the 	divergent 	elements 	inherent
in 	public 	employer-employee 	relations
including 	the 	acknowledged 	distinctions 	in
the 	status 	and 	obligations 	of 	public 	and
private 	employees, 	as 	well 	as 	the 	various
occupations 	and 	professions 	represented 	by
public 	employment. 	(272 	Cal.App.2d 	at 	523,
emphasis 	added.)
In 	accord 	with 	the 	foregoing 	recognition 	of 	the
Legislature's 	selective 	approach 	to 	the 	employment 	relations
112

between 	the various 	and 	diversified 	public 	employers 	and 	public
employees 	are: 	Westminster 	School 	District 	of 	Orange 	County v.
Superior 	Court 	& Westminster 	Teachers 	Association, 	supra,
28 	Cal.App.3d 	120; 	Professional 	Fire 	Fighters, 	Inc. 	v. 	City 	of
Los 	Angeles 	(1963) 	60 	Cal.2d 	276, 	289.
This 	selective 	rather 	than 	general 	approach 	of 	the
Legislature 	to 	the 	difficult 	questions 	and 	problems 	concerning
which, 	if 	any, 	public 	employees 	should 	be 	granted 	the 	right 	to
strike, 	could 	explain why 	the 	County 	Sanitation 	plurality
asserted 	that 	the 	Legislature 	had 	been 	silent 	as 	to 	an
authorization 	for 	or 	prohibition 	against 	public 	employee
strikes. 	However, 	there 	appears 	to 	be 	no 	explanation 	for 	the
County 	Sanitation 	plurality's 	having 	ignored 	the 	selective
approach 	of 	the 	Legislature 	in 	its 	extensive 	and 	definitive
granting 	or 	withholding 	of 	the 	right 	to 	strike 	in 	conjunction
with 	a 	multitude 	of 	public 	employee 	labor 	relations
enactments. 	Such 	statutory 	prescriptions 	and 	proscriptions
involve 	numerous 	publi~ employers 	and 	public amployee 	groups,
and 	exhibit 	a 	sophisticated 	legislative 	approach 	to 	rights,
remedies 	and 	procedures 	in 	various 	appropriate 	combinations
involving: 	the 	forming, 	joining 	and 	participating 	in 	employee
organizations; 	representation 	by employee 	organizationsi
"meeting 	and 	conferring" 	with 	public 	employers; 	bargaining
units; 	representation 	elections; 	exclusive 	representation;
collective 	bargaining; 	"other 	concerted 	activities 	(including
strikes) 	for 	the 	purpose 	of 	collective 	bargaining 	or 	other
113

mutual 	aid 	or 	protection"; 	mutually-agreed-to 	binding 	interest
arbitration; 	mandatory 	binding 	interest 	arbitration; 	mediation;
referral 	of 	unresolved 	issues 	to 	the 	Governor 	for 	appointment
of 	a 	fact-finding 	commission; 	30-day 	"cooling 	off" 	period 	after
the 	fact-finding 	report 	has 	been 	submitted 	to 	the 	Governor;
"impasse" 	procedures; 	unfair 	labor 	practices; 	a 	public
employment 	relations 	board 	to 	administer 	and 	enforce 	various
acts; 	etc. 	(Stats. 	1955, 	ch. 	1036 	(Pub. 	Util. 	Code, 	secs.
24501-27509); 	Stats. 	1957, 	ch. 	547 	(Pub. 	Util. 	Code, 	appen. 	1
secs. 	1.1-13.1); 	Stats. 	1958, 	ch. 	1056 	(Pub. 	Util. 	Code, 	secs.
28500-29757); 	Stats. 	1959, 	ch. 	723 	(Lab. 	Code, 	secs.
1960-1963); 	Stats. 	1961, 	ch. 	1964 	(Gov. 	Code, 	secs. 	3500-3509);
Stats. 	1961, 	ch. 	1932 	(Pub. 	Util. 	Code, 	appen. 	2, 	secs. 	1-11);
Stats. 	1963, 	ch. 	839 	(Pub. 	Util. 	Code, 	secs. 	50000-50507);
Stats. 	1964, 	1st 	Ex. 	Sess., 	ch. 	62 	(Pub. 	Util. 	Code, 	secs.
30000-31520); 	Stats. 	1964, 	1st 	Ex. 	Sess., 	ch. 	92 	(Pub. 	Util.
Code, 	secs. 	70000-80019); 	Stats. 	1964, 	1st 	Ex. 	Sess., 	ch. 	104
(Pub. 	Util. 	Code, 	appen. 	2); 	Stats. 	1965, 	ch. 	1835 	(Pub. 	Util.
Code, 	secs. 	95000-97100); 	Stats. 	1965, 	ch. 	1899 	(Pub. 	Util.
Code, 	secs. 	40000-40617); 	Stats. 	1965, 	ch. 	2039 	(Pub. 	Util.
Code, 	secs. 	90000-93017); 	Stats. 	1965, 	ch. 	2041 	(Ed. 	Code,
secs. 	13080-13088); 	Stats. 	1967, 	ch. 	978 	(Pub. Uti 1. 	Code, 	secs.
98000-98407); 	Stats. 	1968, 	ch. 	1964 	(Gov. 	Code, 	secs.
3500-3509); 	Stats. 	1969, 	ch. 	180 	(Pub. 	Util. 	Code, 	secs.
100000-100500); 	Stats. 	1971, 	ch. 	1161 	(Pub. 	Util. 	Code, 	secs.
101000-101372); 	Stats. 	1971, 	ch. 	1374 	(Pub. 	Util. 	Code, 	secs.
114

102000-102700); 	Stats. 	1971, 	ch. 	1335 	(Pub. 	Util. 	Code,
appen. 	1, 	sec. 	4.1); 	Stats. 	1974, 	ch. 	502 	(Pub. 	Util. 	Code,
secs. 	103500-103700); 	Stats. 	1974, 	ch. 	51. 	(Pub. 	Util. 	Code,
sec. 	30756); 	Stats. 	1975, 	ch. 	294 	(Pub. 	Util. 	Code, 	secs.
120000 	120702); 	Stats. 	1975, 	ch. 	1188 	(Pub. 	Util. 	Code, 	secs.
125000-125561); 	Stats. 	1975, 	ch. 	961 	(Gov. 	Code, 	secs.
3540 	549.3); 	Stats. 	1975, 	3d Ex. 	Sess., 	ch. 	1 	(Lab. 	Code,
secs. 	1140-1166.3); 	Stats. 	1976, 	ch. 	961 	(Gov. 	Code, 	secs.
3540-3549.3); 	Stats. 	1977, 	ch. 	1159 	(Gov. 	Code, 	secs.
3512-3536); 	Stats. 	1978, 	ch. 	744 	(Gov. 	Code, 	secs. 	3560-3599).)
Of 	the 	twenty-five 	(25) 	public 	employer-employee 	acts
enacted 	by 	the 	Legislature, 	plus 	their 	amendments, 	prior 	to
County 	Sanitation, 	the 	Legislature 	specifically 	granted 	the
right 	to 	strike 	to 	the 	public 	employees 	covered 	by 	twelve 	(12)
of 	the 	acts, 	while 	withholding 	the 	right 	to 	strike 	from 	the
remainder, 	which 	includes 	the MMBA 	(local 	public 	employees),
EERA 	{public 	school 	employees), 	SEERA 	(state 	employees), 	and
HEERA 	(higher 	education 	employees).
It 	would 	thus 	appear 	that 	the 	County 	Sanitation 	plurality
proceeded 	on 	an 	invalid 	premise 	as 	to 	the 	Legislature's 	silence
with 	respect 	to 	public 	employee 	strikes. 21
21The 	only 	such 	possible 	"legislative 	silence" 	prior 	to
County 	Sanitation was 	its 	silent 	acquiescence 	to 	the 	unanimous
chain 	of 	appellate 	decisions 	holding 	that 	all 	public 	employee
strikes 	were 	illegal 	unless 	statutorily 	authorized 	by 	the
Legislature. 	(See 	City 	& County 	of 	San 	Francisco 	v. 	United
Association 	of 	Journeymen 	of 	United 	States 	& Canada 	(1986)
42 	Cal.3d 	810, 	Lucas, 	J. 	dissenting 	at 	p. 	819.)
115

Turning 	to 	the 	County 	Sanitation 	plurality's 	treatment 	of
MMBA 	section 	3509 	(Gov. 	Code, 	sec. 	3509), 	which 	is 	similar 	to
EERA 	section 	3549 	(Gov. 	Code, 	sec. 	3549), 	the 	plurality
concluded 	that 	section 	3509 	does 	not 	prohibit 	strikes 	by 	local
public 	employees. 	The 	plurality's 	interpretation was 	based 	on
two 	factors. 	First, 	while 	an 	identical 	provision was 	included
in 	the 	Firefighters 	Act, 	the 	Legislature 	also 	included 	therein
an 	express 	prohibition 	against 	strikes. 	Second, 	in 	San 	Diego
Teachers 	Associationn 	v. 	Superior 	Court 	(1979) 	24 	Cal.3d 	1, 	13,
the 	court 	had 	stated 	that 	the 	similar 	EERA 	section 	3549
specifically did 	not 	prohibit 	strikes. 	(County 	Sanitation,
supra, 	38 	Cal.3d 	at 	573.)
As 	to 	the 	Firefighters 	Act 	(Lab. 	Code, 	secs. 	1960-1963),
the 	plurality 	opinion 	contains 	no 	analysis 	of 	the 	circumstances
under 	which 	the 	Firefighters 	Act 	was 	enacted 	in 	1959. 	Prior 	to
its 	enactment, 	and 	in 	furtherance 	of 	the 	long-established
public 	safety 	policy 	against 	any 	interruption 	or 	interference
in 	the 	delivery 	of 	firefighting 	services, 	f 	ighters 	had ~een
barred 	from 	organizing 	or 	even 	joining 	a 	labor 	organization.
(International 	Association 	of 	Fire 	Fighters, 	Local 	1319,
AFL-CIO 	v. 	City 	of 	Palo 	Alto, 	supra, 	60 	Cal.2d 	295, 	300;
International 	Association 	of 	Fire 	Fighters, 	Local 	No. 	1396,
AFL-CIO 	v. 	County 	of 	Merced, 	supra, 	204 	Cal.App.2d 	387, 	390;
Professional 	Fire 	Fighters, 	Inc, 	v. 	City 	of 	Los 	Angeles, 	supra,
60 	Cal.2d 	276, 	288-289, 	294; 	and 	see 	Perez 	v. 	Board 	of 	Police
Commissioners 	of 	the 	City 	of 	Los 	Angeles 	(1947) 	78 	Cal.App.2d
116

638, 	hg. 	den.; 	Pen. 	Code, 	sec. 	148.2, 	subds. 	(1) 	& (4), 	former
Pen. 	Code, 	sec. 	385 	enacted 	in 	1872, 	and 	former 	Health 	& Saf.
Code, 	sec. 	13006 	(Stats. 	1939); 	Pub. 	Resources 	Code, 	sec. 	4165;
53 	Ops.Cal.Atty.Gen. 	324, 	326-327 	(1970); 	Cal. 	Emergency
Services 	Act, 	Gov. 	Code, 	secs. 	8550-8668, 	former 	Cal. 	Disaster
Act 	of 	1943; 	Mil. 	& Vet. 	Code, 	sec. 	1505.)
In 	response 	to 	the 	insistent 	demands 	of 	firefighters 	that
they 	be 	allowed 	to 	join 	labor 	organizations, 	the 	Legislature
enacted 	the 	Firefighters 	Act. 	(Lab. 	Code, 	sec. 	1960-1963.)
The 	act 	begins 	with 	Labor 	Code 	section 	1960, 	which 	proscribe3
the 	state, 	counties 	and 	cities 	from 	prohibiting, 	denying 	or
obstructing 	"firefighters" 	from 	joining 	"any 	bona 	fide 	labor
organization 	of 	their 	own 	choice." 	Labor 	Code 	section 	1962
then 	prescribes 	that 	"employees" 	(defined 	by Lab. 	Code, 	sec.
1961 	as 	employees 	of 	fire 	departments 	and 	fire 	services):
. 	. 	. 	shall 	have 	the 	right 	to
self-organization, 	to 	form, 	join, 	or 	assist
labor 	organizations, 	to 	present 	grievances
and 	recommendations 	regarding 	wages
salaries, 	hours 	and working 	conditions 	to
governing 	body, 	through 	such 	an
organization, 	but 	shall 	not 	have 	the 	right
to 	strike, 	or 	to 	recognize 	a 	picket 	line 	of
a 	labor 	organization while 	in 	the 	course 	of
the 	performance 	of 	their 	official 	duties.
(Lab. 	Code, 	sec. 	1962, 	emphasis 	added.)
Lastly, 	Labor 	Code 	section 	1963 	proscribed 	the 	enactment 	of 	the
Firefighters 	Act 	as 	being 	construed 	so 	as 	to 	make 	the
provisions 	of 	Labor 	Code 	section 	923 	applicable 	to 	public
employees.
The 	Legislature was 	clearly 	concerned 	that, 	in 	granting
117

firefighters 	the 	right 	to 	organize 	and 	become 	involved 	with
labor 	organizations, 	there 	be 	no 	resultant 	disruption 	or
interference 	in 	the 	delivery 	of 	firefighting 	services 	by way 	of
strikes 	or 	in 	the 	on-duty 	observance 	of 	picket 	lines. 	In 	this
1959 	enactment--which was 	prior 	to 	the 	definitive 	1960 	decision
of 	the 	Supreme 	Court 	in Los 	Angeles 	Metropolitan Transit
Authority, 	supra, 	54 	Cal.2d 	684, 	concerning 	legislative
language 	with 	respect 	to 	the 	right 	to 	strike--the 	Legislature
obviously 	acted 	with 	an 	overabundance 	of 	statutory caution 	in
this 	very 	volatile 	area 	of 	firefighting 	services. 	That 	under
such 	circumstances 	the 	Legislature was 	so 	circumspect 	in 	Labor
Code 	section 	1962 	does 	not 	equate 	to 	the 	Legislature 	not
intending 	to 	prohibit 	such 	strikes 	and 	picket 	line 	observances
as 	part 	of 	its 	Labor 	Code 	section 	1963 	proscription 	insofar 	as
such '..::.ype 	of 	activities 	were 	authorized 	by 	the 	provisions 	of
Labor 	Code 	section 	923.
With 	respect 	to 	£gn Diego 	Teachers, 	supra, 	and 	its
interpretation 	of 	EERA 	section 3549 	as 	not 	prohibiting 	strikes,
again 	there 	is 	a 	lack 	of 	any 	analysis 	by 	the 	majority 	in
San 	Diego 	Teachers 	as 	to 	the 	role 	of 	section 	3549 	in 	EERA. 	The
majo 	ty 	opinion 	annulled 	contempt 	orders 	against 	the 	teachers
association 	on 	the 	basis 	that 	PERE 	has 	exclusive 	initial
jurisdiction 	to 	determine 	whether 	a 	strike 	is 	an 	unfair
practice 	under 	EERA 	and 	if 	so, 	what 	remedies, 	if 	any, 	should 	be
pursued. 	Early 	in 	the 	decision, 	the 	majority 	states 	at 	page 	6:
118

The 	trial 	court 	also 	relied 	on 	section 	3549,
which 	states 	that 	the 	EERA 	"shall 	not 	be
construed 	as 	making 	the 	provisions 	of
Section 	923 	of 	the 	Labor 	Code 	applicable 	to
public 	school 	employees." 	Labor 	Code
section 	923's 	declaration 	that 	workers 	are
to 	be 	free 	from 	employer 	interference 	in
"concerted 	activities 	for 	the 	purpose 	of
collective 	bargaining 	or 	other 	mutual 	aid 	or
protection" 	is 	generally 	understood 	to
confer 	a 	right 	to 	strike. 	(Los 	Angeles 	Met.
Transit 	Authority v. 	Brotherhood 	of 	Railroad
Trainmen 	(1960) 	54 	Cal.2d 	684, 	687-688.)
Petitioners 	[teachers' 	association] 	contend
that 	the 	ERRA, 	though 	excluding 	Labor 	Code
section 	923's 	protection 	of 	the 	right 	to
strike, 	does 	not 	itself 	prohibit 	strikes.
The 	exclusion may 	be 	explained, 	it 	is
~-==~' 	by 	a 	concern 	that 	the 	wholesale
introduction 	of 	rules 	protecting 	collective
bargaining 	in 	the 	private 	sector 	into 	the
public 	sector 	might 	conflict 	with 	tenure 	and
other 	aspects 	of 	public 	employment 	that 	fall
outside 	the 	negotiating 	process 	mandated 	by
the 	EERA. 	(Secs. 	3540, 	3540.1, 	subd. 	(h).)
Petitioners 	further 	contend 	that 	strikes 	by
public 	employees 	have 	been 	outlawed 	in 	the
past 	because 	there 	were 	no 	provisions 	for
public 	employment 	collective 	bargaining
[citations]. 	They 	argue 	that 	the 	EERA's
guarantee 	of 	the 	right 	to 	participate 	in
organizational 	activities 	for
"representation 	on 	all 	matters 	of
employer-employee 	relations" 	(sec. 	3543) 	and
for 	the 	negotiation 	of 	written 	contracts
between 	public 	school 	employers 	and 	employee
organizations 	(sec. 	3540.1, 	subd. 	(h)),
implies 	legality of 	strikes 	to 	make 	the
negotiation 	fective 	and 	meaningful.
(Emphasis 	added.)
The 	majority 	then 	proceeded 	to 	discuss 	PERB's 	exclusive
initial 	jurisdiction. 	And, 	later 	in 	the 	opinion 	in 	response 	to
an 	amicus 	contention 	that 	PERB 	had 	no 	exclusive 	initial
jurisdiction 	since 	strikes 	violate 	section 	3549, 	the 	majority,
without 	any 	analysis 	or 	discussion, 	stated 	in 	response:
119

... 	As 	pointed 	out 	above, 	however, 	section
3549 	does 	not 	prohibit 	strikes 	but 	simply
excludes 	the 	applicability of 	Labor 	Code
section 	923's 	protection 	of
concertedactivities." 	{24 	Cal.3d 	at 	p. 	13,
emphasis 	added.)
The 	only 	previous 	mention 	of 	section 	3549 	in 	the 	decision was
merely 	the 	summary 	of 	petitioner's 	arguments, 	which 	the 	court
neither 	adopted, 	rejected 	nor 	even 	discussed. 	The 	lack 	of
analysis 	in 	support 	of 	the 	foregoing 	statement 	by 	the 	majority
is 	cogently 	observed 	by 	Justice 	Richardson 	in 	his 	dissenting
opinion 	{concurred 	in 	by 	Justice 	Clark 	and 	the 	late 	Justice
Wiley Manuel):
Conversely, 	it 	also 	has 	been 	held 	that
legislation which 	purports 	to 	deprive 	a
particular 	class 	of 	employee 	of 	the 	right 	to
engage 	in 	concerted 	activities, 	or 	which
withholds 	the 	applicability 	of 	the
provisions 	of 	Labor 	Code 	section 	923,
demonstrates 	a 	legislative 	intent 	to
withhold 	the 	right 	to 	strike. 	(Pasadena
Unified 	Sch. 	Dist. 	v. 	Pasadena 	Federation 	of
Teachers, 	supra, 	72 	Cal.App.3d. 	100, 	106;
Almond 	v. 	County 	of 	Sacramento 	(1969)
276 	Cal.App.2d 	32, 	37-38.)
The 	majority 	acknowledge 	that 	the 	EERA,
under 	section 	3549 	of 	the 	Government 	Code,
expressly 	provides 	that 	"The 	enactment 	of
this 	chapter 	{regarding 	meeting 	and
negotiating 	in 	public 	educational
employment) 	shall 	not 	be 	construed 	as 	making
the 	provisions 	of 	Section 	923 	of 	the 	Labor
Code 	applicable 	to 	public 	school
employees .... " 	Because 	section 	923
declares 	as 	a 	public 	policy 	the 	right 	of 	a
private worker 	to 	engage 	"in 	other 	concerted
activities," 	judicially 	defined 	as 	including
the 	right 	to 	strike 	(Los 	Angeles 	Met.
Transit 	Authority, 	supra, 	at 	p. 	689) 	it
seems 	to 	me 	inescapable 	that 	the 	foregoing
language 	of 	section 	3549 	conclusively
establishes 	the 	Legislature's 	intent 	to 	deny
120

this 	weapon 	to 	public 	school 	employees.
Indeed, 	this 	very 	language was 	held 	in
Pasadena 	to 	constitute 	a 	legislative
affirmance 	of 	an 	intent 	"to 	withhold 	the
right 	to 	strike 	from 	public 	educational
employees." 	(72 	Cal.App.3d 	100, 	106-107; 	see
Almond 	v. 	County 	of 	Sacramento, 	supra,
276 	Cal.App.2d 	32, 	37 	8.)
The 	majority's 	disposition 	of 	section 	3549
is 	wholly 	unsatisfactory 	in 	its 	insistence
that 	" ... 	section 	3549 	does 	not 	prohibit
strikes 	but 	simply 	excludes 	the
applicability 	of 	Labor 	Code 	section 	923's
protection of 	concerted 	activities." 	(Ante,
p. 	12.) 	In my 	view, 	the 	argument 	is
manifestly wrong, 	as 	the 	above 	quoted
Pasadena 	holding 	indicates. 	To 	the
contrary, 	by withholding 	the 	protection 	of
section 	923 	the 	Legislature 	necessarily
retained 	the 	preexisting 	prohibition 	against
all 	public 	employment 	strikes.
Therefore, 	in 	examining 	those 	sections 	of
EERA 	relied 	on 	by 	the 	majority, 	we 	should
bear 	in mind 	that, 	under 	EERA's 	own
provisions, 	public 	school 	strikes 	remain
unlawful. 	(24 	Cal.3d 	at 	p. 	19, 	emphasis
court's.)
It 	may 	also 	be 	observed 	that 	County 	Sanitation's
interpretation 	of :MMBA 	section 	3509--to 	the 	effect 	that 	the
section merely 	denies 	the 	protectiorr afforded 	by 	Labor 	Code
section 	923 	for 	concerted 	activities--leaves 	treacherous 	shoals
in 	its 	wake 	for 	local 	public 	employees 	who, 	in 	mistaken
reliance 	on 	County 	Sanitation, 	may 	sail 	out 	on 	strike 	waters.
In 	dealing 	with whether :MMBA 	section 	3509 	prohibits 	local
public 	employee 	strikes 	and 	would 	thus 	constitute 	a 	statutory
basis 	for 	a 	cause 	of 	action, 	and 	in 	holding 	that 	section
3509 	did 	not 	so 	prohibit, 	the 	plurality 	did 	not 	hold 	that 	the
:MMBA 	the 	right 	to 	strike 	to 	local 	public 	employees.
121

Inasmuch 	as 	local 	public 	employees 	do 	not 	have 	the 	right 	to
strike 	under 	the 	MMBA, 	they 	accordingly 	have 	no 	MMBA 	protection
for 	any 	strike 	in which 	they 	engage. 	(Gov. 	Code, 	secs. 	3502,
3506; 	Stationary Engineers 	v. 	San 	Juan 	Suburban Water 	District
(1979) 	90 	Cal.App.3d 	796, ·ao1; 	Healdsburg 	Police 	Officers
Association 	v. 	City 	of 	Healdsburg 	(1976) 	57 	Cal.App.3d 	444,
451-452.) 	So, 	if 	they 	engage 	in 	strikes, 	although 	they 	are 	no
longer 	potentially 	liable 	for 	under 	the 	common
, 	they will 	nonetheless 	be 	placing 	their 	government 	jobs 	in
jeopardy 	by 	engaging 	in 	conduct 	unprotected 	by 	the MMBA 	(as
well 	as 	unprotected 	by Lab. 	Code, 	sec. 	923).
Thus, 	while 	County 	Sanitation 	is 	applicable 	and 	controlling
as 	to 	public 	employee 	strikes 	no 	longer 	being 	tortious 	under
California 	common 	law 	(unless 	they 	af 	public 	health 	or
safety), 	the 	assumption 	of 	the 	plurality 	opinion 	as 	to 	the
Legislature's 	intent 	and 	silence 	with 	respect 	to 	public
employee 	strikes, 	as 	well 	as 	its 	reasoning 	concerning MMBA
section 	3509 	is 	unpersuasive 	and 	does 	not 	alter 	our
determination 	that 	public 	school 	employees 	do 	not 	have 	a 	right
to 	strike 	under 	EERA.
III. 	THE 	STATUS 	OF A STRIKE 	BY 	PUBLIC 	SCHOOL 	EMPLOYEES
AS 	UNFAIR 	PRACTICES 	AND/OR VIOLATIONS 	UNDER 	EERA
Since 	public 	school 	employees 	do 	not 	have 	the 	right 	under
EERA 	to 	engage 	"in 	other 	concerted 	activities 	for 	the 	purpose
of 	collective 	bargaining 	or 	other 	mutual 	aid 	or 	protection,"
122

strikes 	by 	public 	school 	employees 	are 	not 	protected 	by 	EERA
(Gov. 	Code, 	sec. 	3543.5). 	There 	remains 	then 	the 	question 	of
whether 	public 	school 	employee 	strikes 	constitute 	unfair
practices 	and/or 	violations 	under 	EERA.
In 	relation 	to 	the 	collective 	bargaining 	process 	under
EERA, 	there 	are 	three 	types 	of 	strikes 22 in which 	public
school 	employees 	might 	engage: 	(1) 	the 	"pre-impasse 	economic
strike," 	a 	strike 	engaged 	in 	to 	achieve 	bargaining 	goals 	prior
to 	impasse 	or 	before 	the 	exhaustion 	of 	the 	statutory 	impasse
procedures 	(Gov. 	Code, 	secs. 	3548-3548.5); 	(2) 	the
"post-impasse 	economic 	strike," 	a 	strike 	engaged 	in 	to 	achieve
bargaining 	goals 	after 	the 	exhaustion 	of 	the 	statutory 	impasse
procedures 	(Gov. 	Code, 	secs. 	3548-3548.5); 	and 	(3) 	the 	"unfair
practice 	strike," 	a 	strike 	engaged 	in 	purportedly 	in 	response
to 	an 	alleged 	unfair 	practice 	by 	the 	public 	school 	employer,
and 	which may 	occur 	pre-impasse, 	during 	impasse, 	or
post-impasse.
As 	to 	"pre-impasse 	economic 	strikes," 	this 	Board 	has
already 	held 	that 	public 	school 	employee 	strikes 	engaged 	in 	to
achieve 	bargaining 	goals 	and 	undertaken 	prior 	to 	impasse 	or
before 	the 	exhaustion 	of 	the 	statutory 	impasse 	procedures
constitute 	unfair 	practices 	under 	EERA 	in 	that 	the 	public
school 	employees 	are 	thereby 	failing 	or 	refusing 	to 	meet 	and
22strikes 	may 	involve 	various 	types 	of 	work 	stoppages
such 	as: 	a 	one-day 	strike, 	a 	"rolling'' 	or 	intermittent 	strike,
a 	continuous 	strike, 	a 	"sick 	out," 	a 	work 	slowdown, 	etc.
123

negotiate 	in 	good 	faith. 	(Gov. 	Code, 	sec. 	3543.6(c) 	and 	(d);
Fresno 	Unified 	School 	District, 	supra, 	PERB 	Decision 	No. 	208,
pp. 	9-14; 	Westminster 	School 	District, 	supra, 	PERB 	Decision
No. 	277, 	pp. 	14-17; 	and 	see 	El 	Dorado 	Union 	High 	School
District 	(1986) 	PERB 	Decision No. 	537a.)
As 	to 	the 	"unfair 	practice 	strikes," 	which may 	occur
pre-impasse, 	during 	impasse, 	or 	post-impasse, 	this 	Board 	has
heretofore 	held 	that 	public 	school 	employees 	have 	a 	right 	under
EERA 	to 	engage 	in 	such 	strikes 	and, 	accordingly, 	that 	such
strikes 	are 	not 	unfair 	practices 	because 	employee 	rights 	under
EERA 	are 	protected 	by EERA. 	(Modesto 	City Schools, 	supra, 	PERB
Decision 	No. 	291, 	pp. 	52-65; 	and 	see 	San 	Ramon Valley Unified
School 	District, 	supra, 	PERB 	Order 	No. 	IR-46, 	pp. 	9-10.) 	But,
as 	already 	discussed, 	, 	EERA 	section 	3543 	does 	not 	grant
public 	school 	employees 	the 	right 	to 	engage 	"in 	other 	concerted
activities 	for 	the 	purpose 	of 	collective bargaining 	or 	other
mutual 	aid 	or 	protection." 	Therefore, 	Modesto 	City 	Schools 	was
incorrectly decided 	as 	to 	public 	school 	employees 	having 	a
right 	under 	EERA 	section 	3543 	to 	engage 	in 	"unfair 	practice
strikes." 	The 	public 	school 	employees' 	remedy 	to 	an 	unfair
practice 	by 	the 	public 	school 	employer 	would 	be 	to 	file 	an
unfair 	practice 	charge with 	this 	Board 	against 	the 	employer.
(Gov. 	Code, 	secs. 	3541.5, 	3543.5.) 	If 	the 	public
school 	employer's 	unfair 	practice 	is 	of 	a 	nature 	necessitating
immediate 	relief, 	the 	public 	school 	employees 	may 	also 	petition
this 	Board 	to 	seek 	injunctive 	relief. 	(Gov. 	Code, 	sec.
124

3541.3(j); 	PERB 	Regs. 	Cal. 	Admin. 	Code, 	tit. 	8, 	secs.
32450-32470; 	and 	see 	Stationery Engineers 	v. 	San 	Juan 	Suburban
Water 	District 	(1979) 	90 	Cal.App.3d 	796, 	801.)
There 	remains 	the 	''post-impasse 	economic 	strike" 	engaged 	in
by 	public 	school 	employees 	to 	force 	from 	the 	public 	school
employer 	a 	change 	or 	changes 	in wages, 	hours, 	duties 	and/or
other 	terms 	and 	conditions 	of 	employment 	which 	they 	have 	not
been 	able 	to 	achieve 	at 	the 	bargaining 	table. 	This 	Board 	has
not 	previously 	ruled 	on whether 	such 	post-impasse 	economic
strikes 	constitute 	unfair 	practices 	under 	EERA. 	(San 	Ramon
Valley 	Unified 	School 	District, 	supra, 	PERB 	Order 	No. 	IR-46,
pp. 	9-10.)
Before 	examining 	the 	situation 	of 	the 	collective 	bargaining
status 	quo 	of 	public 	school 	employers 	and 	employees 	following
the 	exhaustion 	of 	the 	statutory 	impasse 	procedures, 	a 	brief
discussion 	may 	be 	in 	order 	with 	reference 	to 	a 	contention
sometimes 	raised 	by 	public 	school 	employees 	following 	the
expiration 	of 	a 	collective 	bargaining 	agreement, 	that 	they 	have
been working 	"without 	a 	contract," 	apparently mimicking 	their
counterparts 	in 	the 	private 	sector. 	To 	be 	accurate, 	they 	could
say 	they 	have 	been 	working 	without 	a 	collective 	bargaining
agreement, 	but 	the 	law 	is 	well-established 	that 	this 	does 	not
mean 	they 	do 	not 	have 	a 	"contract." 	Due 	to 	the 	nature 	of 	their
public 	employment, 	and 	the 	statutory 	and 	constitutional
protections 	afforded 	them, 	they 	are 	indeed 	under 	contract 	and
their 	failure 	to 	perform 	can 	theoretically 	be 	deemed 	a 	breach
125

of 	contract.
It 	has 	long 	been 	held 	by 	the 	courts 	of 	California 	that, 	the
tenure 	laws 	notwithstanding, 	the 	employment 	relationship
between 	a 	teacher 	and 	the 	school 	board 	is 	contractual. 	Once 	a
teacher 	achieves 	permanent 	status, 	he 	or 	she 	acquires 	a 	vested
right 	to 	teach 	as 	a 	permanent 	instructor 	and 	may 	be 	removed
from 	the 	position 	only 	for 	cause 	pursuant 	to 	statutory
procedures, 	but 	such 	right 	"attaches" 	to 	the 	contract.
As 	stated 	by 	the 	California 	Supreme 	Court 	in Abraham 	v.
Sims 	(1935) 	2 	Cal.2d 	698, 	710-711:
The 	result 	of 	these 	enactments 	[the 	laws
regulating 	tenure] 	was 	not 	to 	make 	the
relation 	any 	the 	less 	one 	originating 	in
contract, 	but 	to 	annex 	to 	contracts 	of
employment 	when 	repeated 	for 	a 	sufficient
time 	certain 	legal 	consequences. 	These
consequences 	are 	not 	contractual 	except 	in
the 	broadest 	sense 	of 	being 	annexed 	by
operation 	of 	law 	to 	the 	contract 	and 	have
been 	said 	to 	be 	"in 	the 	nature 	of 	a 	civil
service 	regulation." 	[Citations.] 	One 	of
the 	consequences 	is 	a 	permanent 	right 	to
teach 	so 	long 	as 	the 	board's 	reasonable
regulations 	are 	complied with. 	The
right 	to 	teach 	is 	an 	incident 	to
classification 	as 	a 	permanent 	teacher 	and
after 	three 	[now 	two] 	consecutive 	years 	of
employment 	and 	service, 	and 	reelection 	by 	the
board 	for 	the 	next 	succeeding 	school 	year,
the 	law 	as 	of 	the 	beginning 	of 	that 	year
automatically 	effects 	the 	classification 	and
nothing 	more 	is 	required 	to 	accomplish 	it
[N]o 	affirmative 	action 	of 	the 	board 	is
requisite 	to 	accomplish 	such 	reemployment
. 	and 	a 	permanent 	teacher 	need 	not 	even
notify 	the 	board 	of 	his 	acceptance.
The 	manifest 	implication 	is 	that 	unless 	he
notifies 	the 	board 	to 	the 	contrary 	or 	fails
to 	appear 	for 	the 	purpose 	of 	teaching 	at 	the
opening 	of 	the 	school 	year, 	he 	must 	be 	deemed
to 	have 	accepted 	the 	reemployment.
126

The 	Court 	of 	Appeal 	stated 	in 	Frates 	v. 	Burnett 	(1970)
9 	Cal.App.3d 	63, 	69:
It 	has 	been 	held 	that 	"rules 	and 	regulations
adopted 	by 	a 	board 	of 	education 	are, 	in
effect, 	a 	part 	of 	a 	teacher's 	employment
contract 	and 	the 	teacher 	is 	entitled 	to
their 	enforcement." 	[Citation.] 	Although
this 	rule 	has 	been made 	on 	behalf 	of
teachers, 	no 	distinction 	is 	seen 	between 	a
teacher 	and 	a 	classified 	employee 	of 	the
district.
With 	the 	advent 	of 	collective 	bargaining, 	July 	1 may 	pass
without 	a 	resolution 	of 	the 	terms 	of 	a 	new 	or 	successor
collective 	bargaining 	agreement. 	While 	there 	are 	no 	specific
cases 	on 	point, 	presumably 	the 	employees' 	individual 	contracts
remain 	in 	effect 	until 	there 	is 	a 	mutual 	agreement 	to 	alter
those 	terms 	reached 	by 	the 	exclusive 	representative 	and 	the
governing 	board. 	However, 	once 	an 	agreement 	is 	reached, 	the
employees 	are 	entitled 	to 	enforcement 	of 	the 	terms 	of 	the
agreement. 	(Compton 	Community 	College 	Federation 	of 	Teachers,
v .. Compton 	Community 	College 	District,
supra, 	165 	Cal.App.3d 	82, 	95.) 	Thus, 	it 	can 	be 	said 	that,
while 	the 	collective 	bargaining 	agreement 	establishes 	various
terms 	and 	conditions 	employment 	within 	scope, 	it 	is 	but 	a
mere 	overlay 	to 	the 	actual 	contract 	of 	employment 	created 	by
operation 	of 	law 	and 	renewed 	annually, 	with 	no 	further 	action
required 	by 	either 	the 	employer 	or 	the 	employee 	to 	make 	it
enforceable, 	presumably 	by 	either 	party.
This 	ongoing 	contractual 	relationship 	creates 	a 	significant
distinction 	between 	private 	sector 	employees 	whose 	collective
127

bargaining 	agreement 	has 	expired, 	and 	public 	school 	employees
in 	the 	same 	situations. 	So, 	after 	the 	expiration 	of 	an
agreement, 	public 	school 	employees 	may 	be 	working 	without 	a 	new
agreement, 	but 	they 	are 	not 	"wo 	ng 	without 	a 	contract."
And, 	while 	private 	sector 	employees--and 	certain
statutorily 	authorized 	public 	employees--have 	a 	protected 	right
to 	engage 	in 	concerted 	activities 	for 	the 	purpose 	of 	collective
bargaining 	or 	other 	mutual 	aid 	or 	protection, 	and 	thus 	may
engage 	in 	post-impasse 	economic 	strikes 	to 	obtain 	their
bargaining 	goals 	without 	committing 	an 	unfair 	practice 	under
the 	respective 	California 	and 	federal 	labor 	laws 	applicable 	to
them 	(see, 	e.g., 	Lab. 	Code, 	secs. 	923, 	1152, 	1153(a); 	Pub.
Util. 	Code, 	secs. 	30755, 	70120, 	90300(a), 	100300, 	101340,
103400, 	120500, 	125520; 	29 	U.S.C.A., 	sec. 	157), 	public 	school
employees 	do 	not 	have 	such 	a 	protected 	right 	under 	EERA.
Work 	Stoppages 	as 	an 	Unfair 	Negotiating 	Pressure 	Tactic
When 	public 	school 	employees 	engage 	in work 	stoppages 	to-
obtain 	their 	bargaining 	demands, 	they 	are 	using 	the 	disruption
and 	interference 	in 	the 	operation 	of 	the 	public 	schools 	as 	a
coercive 	pressure 	tactic 	to 	force 	the 	public 	school 	employer 	to
come 	to 	the 	bargaining 	table 	and 	capitulate 	to 	their 	demands.
Such 	bargaining 	pressure 	tactics 	not 	only 	detrimentally
affect 	the 	negotiating 	process 	between 	the 	parties, 	but 	they
are 	also 	antithetical 	to 	another 	basic 	underlying 	concern 	of
EERA 	as 	well 	as 	a 	recognized 	responsibility 	of 	this 	Board:
128

"[To] 	further 	the 	public 	interest 	in 	maintaining 	the 	continuity
and 	quality 	of 	educational 	services." 	(San 	Diego 	Teachers
Association 	v. 	Superior 	Court 	(1979) 	24 	Cal.3d 	1, 	11; 	El 	Rancho
Unified 	School 	District 	v. 	National 	Education 	Association
(1983) 	33 	Cal.3d 	946, 	957; 	Pittsburg 	Unified 	School 	District 	v.
California 	School 	Employees 	Association 	(1985) 	166 	Cal.App.3d
875, 	887-888, 	hg. 	den.; 	and 	see 	Cal. 	Const., 	art. 	IX.) 	Such
conduct 	by 	the 	public 	school 	employees 	involves 	third 	parties
-- 	the 	public, 	the 	children, 	and 	the 	children's 	parents 	-- 	as
well 	as 	the 	constitutional 	right 	of 	the 	children 	to 	their
education, 	and 	thrusts 	such 	interests 	and 	rights 	into 	the
bargaining 	arena 	in 	an 	attempt 	to 	pressure 	the 	public 	school
employer 	to 	yield 	to 	their 	demands.
While 	public 	school 	employees 	may 	contend 	that 	they 	are
simply 	engaging 	in 	the 	traditionally 	recognized 	"economic
strike" 	to 	bring 	economic 	pressure 	on 	the 	employer 	to 	accede 	to
their 	bargaining 	demands, 	such 	strikes 	in 	the 	public 	schools
simply 	do 	not 	equate 	to 	the 	traditional 	"economic 	strikes" 	in
the 	private 	sector. 	"Economic 	strikes" 	against 	a 	private
employer 	are 	brought 	to 	exert 	true 	economic 	pressure 	on 	the
private 	employer 	to 	cause 	the 	employer 	to 	acquiesce 	to 	the
strikers' 	demands. 	Such 	private 	sector 	striking 	is 	directed 	at
the 	private 	employer's 	products, 	sales 	and/or 	services 	to 	its
customers. 	The 	private 	sector 	economic 	strike 	is 	aimed 	at 	the
employer's 	income 	through 	stopping 	the 	employer's 	production,
preventing 	the 	sale 	of 	products 	or 	services 	to 	the 	employer's
129

customers, 	dissuading 	the 	employer's 	customers 	from 	patronizing
the 	employer's 	business, 	diverting 	customers 	to 	the 	employer's
competitors, 	etc. 	The 	private 	employer 	has 	to 	be 	concerned
with 	loss 	of 	business, 	loss 	of 	profits, 	loss 	of 	its 	regular
customers 	to 	competitors, 	and, 	if 	a 	corporation, 	disgruntled
stockholders. 	Also, 	the 	private 	sector 	employer 	may, 	for
business 	reasons, 	choose 	to 	"lock-out" 	the 	employees 	and/or
"accept" 	a 	strike 	in 	order 	to 	pressure 	the 	employees 	to 	cease
the 	work 	stoppage 	or 	to 	give 	in 	to 	the 	employer's 	bargaining
demands.
Unlike 	private 	employers, 	who 	seek 	their 	income 	from 	their
customers, 	public 	school 	employers 	do 	not 	obtain 	their 	income
from 	a 	business 	and 	have 	nd 	"customers" 	as 	such. 	Rather,
schools 	are 	under 	a 	constitutional 	and 	statutory mandate 	to
provide 	educational 	services 	to 	the 	children 	and 	to 	keep 	the
public 	schools 	in 	operation. 	(Cal. 	Const., 	art. 	IX; 	Ed. 	Code,
secs. 	41420, 	48200-48324.) 	School 	districts 	receive 	their
funding 	from 	the 	state and 	federal 	governments. 	They 	have 	a
mandated, 	compulsory 	"clientele" 	of 	the 	school-age 	children
living 	in 	their 	districts. 	These 	children 	have 	a
constitutional 	right 	to 	attend 	the 	district's 	schools 	and
receive 	educational 	services 	from 	the 	public 	school 	employer.
The 	district's 	children 	and 	their 	parents 	may 	not 	change 	their
"patronage" 	to 	an 	adjoining 	school 	district. 	And, 	unlike
private 	sector 	employers, 	when 	impasse 	is 	reached, 	the 	public
school 	employer 	may 	not 	"lock-out" 	the 	public 	school
130

employees. 	(Cal. 	Const., 	art. 	IX; 	Ed. 	Code, 	sec. 	41420.)
Accordingly, 	the 	"economic 	strike" 	by 	public 	school
employees 	is 	more 	realistically described 	as 	being 	political
rather 	than 	economic 	in 	nature. 	It 	is 	an 	attempt 	to 	bring
political 	pressure 	from 	the 	public 	and 	the 	children's 	parents
on 	the 	elected 	public 	school 	board 	to 	force 	the 	public 	school
employer 	to 	give 	in 	to 	the 	strikers' 	demands 	in 	order 	to 	return
the 	schools 	to 	normal 	operation. 	By 	engaging 	in 	an 	asserted
"economic 	strike" 	to 	obtain 	their 	bargaining 	demands, 	the
public 	school 	employees 	are 	in 	reality 	attempting 	to 	hold
hostage 	the 	children's 	education, 	relying 	on 	the 	resultant
public, 	parental 	and 	statutory 	pressures 	on 	the 	elected 	school
district 	board 	to 	force 	to 	pay 	the 	"ransom" 	-- 	the
bargaining 	demands 	of 	the 	strikers 	-- 	for 	the 	resumption 	of
normal 	school 	operations.
Such 	coercive 	tactics, 	which 	necessarily 	compromise 	the
children's 	right 	to 	an 	education 	by 	interfering 	with 	the
continuity 	and 	quality 	of 	educational serviceE, 	for 	the purpose
of 	forcing 	the 	public 	school 	employer's 	surrender 	to 	the
employees' 	demands, 	are 	unfair, 	in 	bad 	faith, 	repugnant 	to 	the
purposes 	of 	EERA, 	and 	constitute 	a 	failure 	to 	negotiate 	in 	good
faith, 	thereby 	violating 	EERA 	section 	3543.6(c).
Work 	Stoppages 	as 	Unlawful 	Unilateral 	Changes
An 	attempt 	by 	public 	school 	employees 	to 	gain 	their
collective 	bargaining 	goals 	by 	engaging 	in 	post-impasse work
131

stoppages, 	or 	by 	refusing 	to 	attend 	to 	or 	perform 	one 	or 	more
of 	the 	existing 	terms 	and 	conditions 	of 	their 	employment,
obviously 	changes 	the 	then-existing 	status 	quo 	as 	to 	their
hours, 	duties 	and/or 	other 	terms 	and 	conditions 	of 	their
employment. 	Relevant· to 	whether 	such 	changes 	in 	hours, 	duties
and 	terms 	and 	conditions 	of 	employment 	constitute 	unfair
practices 	under 	EERA 	are 	the 	two 	EERA 	unfair 	practice 	sections
3543.5 	and 	3543.6 	which 	prescribe 	in 	pertinent 	part:
3543.5 	It 	shall 	be 	unlawful 	for 	a 	public
school 	employer 	to:
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
(e) 	Refuse 	to 	participate 	in 	good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in Article 	9
(commencing 	with 	section 	3548).
3543.6 	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.
(d) 	Refuse 	to 	participate 	in 	good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in Article 	9
(commencing 	with 	section 	3548).
Prior 	decisions 	of 	this 	Board 	concerning 	whether 	unilateral
changes 	in 	the 	status 	quo 	as 	to 	wages, 	hours, 	or 	other 	terms
and 	conditions 	of 	employment 	constitute 	unfair 	practices 	have
dealt 	with 	unilateral 	changes 	in 	the 	status 	quo 	by 	the 	public
132

school 	employer. 	The 	status 	quo 	is 	the 	existing 	wages, 	hours,
duties, 	and 	other 	terms 	and 	conditions 	of 	employment 	in 	the
employment 	relationship 	between 	the 	public 	school 	employer 	and
the 	public 	school 	employees 	as 	established 	by 	the 	applicable
provisions 	of 	the 	Education 	Code, 	the 	last 	executed 	collective
bargaining 	agreement 	and/or 	the 	established 	past 	practice 	of
the 	parties. 	(Davis 	Unified 	School 	District 	et 	al. 	(1980) 	PERE
Decision 	No. 	116, 	p. 	9; 	Grant 	Joint 	Union 	High 	School 	District
(1982) 	PERE 	Decision 	No. 	196, 	p. 	8.)
This 	Board 	has 	held 	that 	the 	public 	school 	employer 	commits
an 	unfair 	practice 	in 	violation 	of 	EERA 	section 	3543.5 	if 	it
unilaterally 	acts 	to 	change 	the 	status 	quo 	as 	to 	wages, 	hours,
duties, 	or 	other 	terms 	and 	conditions 	of 	employment 	within 	the
scope 	of 	representation. 	The 	public 	school 	employer 	may 	not 	so
unilaterally 	act 	at 	any 	time, 	whether 	it 	be 	during 	the 	life 	of
an 	existing 	collective 	bargaining 	agreement 	or 	during 	the
pre-impasse, 	impasse, 	or 	post-impasse 	Btages 	of 	the 	bargaining
over 	a 	successor 	agreement .. (Modesto 	City 	Schools, 	supra, 	PERE
Decision 	No. 	291, 	p. 	12; 	Oakland 	Unified 	School 	District 	(1983)
PERE 	Decision 	No. 	367, 	p. 	22.) 	The 	only 	exception 	is 	that 	the
public 	school 	employer 	may, 	post-impasse, 	unilaterally 	act 	to
implement 	its 	last 	best 	offer. 	(Modesto 	City 	Schools, 	supra,
at 	pp. 	32-32, 	38; 	Gov. 	Code, 	sec. 	3549.) 	Should 	the 	employer
otherwise 	unilaterally 	change 	the 	status 	quo 	with 	respect 	to
wages, 	hours, 	duties, 	or 	any 	other 	term 	or 	condition 	of
employment, 	it 	would 	commit 	an 	unfair 	practice 	in 	violation 	of
133

EERA 	section 	3543.5(c) 	in 	that 	it 	did 	not 	first 	successfully
negotiated 	the 	change 	with 	the 	public 	school 	employees.
What 	then 	of 	the 	public 	school 	employees? 	Having 	failed 	to
negotiate 	their 	desired 	changes 	in wages, 	hours, 	duties 	or
other 	terms 	and 	conditions 	of 	their 	employment, 	may 	they,
post-impasse, 	unilaterally change 	the 	status 	quo 	in 	their
hours, 	duties, 	or 	other 	terms 	and 	conditions 	of 	their
employment 	in 	order 	to 	pressure 	the 	public 	school 	employer 	and
achieve 	their 	bargainiqg 	goals? 	As 	to 	unilaterally 	changing
the 	status 	quo 	with 	respect 	to 	their 	wages, 	or 	achieving 	some
other 	change 	in 	the 	status 	quo 	which 	they 	could 	not 	effect 	and
which 	would 	necessitate 	employer 	action 	or 	funds, 	the 	answer 	is
obviously no. 	(See 	Associated Musicians 	Local 	802 	(1967)
164 	NLRB 	23 	[65 	LRRM 	1048], 	affd. 	sub 	nom. 	Cutler 	v.
(2d 	Cir. 	1968) 	395 	F.2d 	287 	[68 	LRRM 	2317, 	2319].) 	On 	the
other 	hand, 	by 	engaging 	in 	a 	work 	stoppage, 	public 	school
employees 	do 	make 	and 	effect 	a 	unilateral 	change 	in 	the 	status
quo 	as 	to.their 	hours, 	duties, 	and 	other 	terms 	and 	conditions
of 	their 	employment; 	This 	is 	so 	in 	that 	by 	striking, 	such
employees 	are 	quite 	clearly 	and 	effectively 	unilaterally
changing 	the 	status 	quo 	as 	to 	their 	hours 	(from 	x 	hours 	to 	zero
hours), 	their 	duties 	(absenting 	themselves 	from 	the 	classroom,
instruction, 	etc.), 	and 	their 	other 	terms 	and 	conditions 	of
employment 	which 	they 	are 	obligated 	to 	perform.
If 	a 	unilateral 	change 	in 	the 	status 	quo 	by 	the 	public
school 	employer 	constitutes 	an 	unfair 	practice 	in 	violation 	of
134

EERA 	section 	3543.5(c), 	then 	so 	too 	must 	a 	unilateral 	change 	in
the 	status 	quo 	by 	public 	school 	employees 	constitute 	an 	unfair
practice 	in 	violation 	of 	EERA 	section 	3543.6(c). 	Changes 	in
the 	status 	quo 	must 	be 	by 	bilateral, 	negotiated 	agreement
between 	the 	parties. 	·Public 	school 	employees 	may 	not
unilaterally 	change 	or 	reduce--much 	less 	cease 	performing 	at
all--their 	working 	hours, 	duties 	and 	other 	terms 	and 	conditions
of 	their 	employment 	when 	they 	are 	unable 	to 	successfully
negotiate 	a 	desired 	change 	in 	salary 	or 	other 	term 	and
condition 	of 	employment. 23
23our 	dissenting 	colleague 	cites 	Moreno 	Valley 	Unified
School 	District 	v. 	PERB 	(1983) 	143 	Cal.App.3d 	191 	for 	the
propositions 	that 	1) 	based 	on 	his 	assertion 	that 	there 	is 	a
suspension 	of 	the 	duty 	to 	bargain 	upon 	reaching 	second 	impasse,
there 	can 	be 	no 	(c) 	violation, 	and 	2) 	public 	school 	employee
strikes 	do 	not 	equate 	to 	a 	unilateral 	change. 	However, 	Moreno
Valley 	is 	easily 	distinguishable.
In Moreno 	Valley, 	the 	court 	was 	dealing 	with 	the 	public
school 	employer's 	unilateral 	change 	during 	EERA's 	statutory
impasse 	(Gov. 	Code, 	secs. 	3548-3548.4.) 	PERB 	had
found 	that 	such 	a 	unilateral 	change was 	both 	a 	refusal 	to
participate 	in 	good 	faith 	in 	the 	statutory 	impasse 	procedure
(Gov. 	Code, 	sec. 	3543.5(e)) 	and 	a 	refusal 	or 	failure 	to 	meet
and 	negotiate 	in 	good 	faith 	(Gov. 	Code, 	sec. 	3543.5(c)). 	The
Moreno 	Valley 	court 	held 	that, 	since 	the 	unilateral 	change
occurred 	after 	impasse 	had 	been 	reached 	and 	during 	the
statutory 	impasse 	procedure 	period, 	the 	only 	violation 	was 	of
EERA 	section 	3543.S(e) 	refusal 	to 	participate 	in 	good 	faith 	in
the 	statutory 	impasse 	procedure.
Moreno 	Valley did 	not 	involve 	a 	post-statutory 	impasse
unilateral 	change 	by 	the 	employer. 	The 	latter 	situation 	has
already 	been 	ruled 	on 	by 	this 	Board 	in 	a 	case wherein 	PERB
successfully 	sought 	an 	injunction 	against 	a 	publ 	school
employer's 	post-statutory 	impasse 	unilateral 	change, 	based 	on 	a
violation 	of 	EERA 	section 	3543.5(c)--refusal 	or 	failure 	to 	meet
and 	negotiate 	in 	good 	faith 	(Modesto 	City 	Schools 	District
135

(1980) 	PERB 	Order 	No. 	IR-12, 	affirmed 	in 	PERB 	v. 	Modesto 	City
Schools 	District 	(1982) 	136 	Cal.App.3d 	881, 	894-895, 	900-901,
hg. 	den.).
Moreover, 	the 	dissent 	asserts, 	in 	essence, 	that 	where 	there
is 	no 	duty 	to 	bargain, 	there 	can 	be 	no 	(c) 	violation, 	and
concludes 	that 	the 	duty 	to 	bargain 	is 	suspended 	upon 	the
parties 	reaching 	second 	impasse. 	Thus, 	according 	to 	the
dissent, 	a 	strike 	under 	the 	circumstances 	of 	this 	case 	cannot
constitute 	a 	(c) 	violation. 	The 	flaw 	in 	this 	argument 	is 	that,
while 	the 	employer 	may 	adopt 	its 	last 	best 	at 	this 	stage,
it 	may 	not 	make 	unilateral 	changes 	inconsistent 	with that
offer, 	and 	doing 	so, 	it 	commits 	a 	{.Ql violation. 	(Modesto 	City
Schools 	District, 	id.)
The 	dissent's 	citation 	to 	Moreno 	Valley 	as 	holding 	that 	a
unilateral 	change 	in 	employment 	conditions 	does 	not 	equate 	to 	a
strike 	is 	misplaced. 	The 	case 	came 	to 	the 	court 	on 	the
district's 	appeal 	from 	a 	PERB 	finding 	that 	it 	committed 	an
unfair 	practice 	when 	it 	made 	a 	unilateral 	change 	during 	the
impasse 	procedures. 	The 	district 	had 	argued 	that 	since 	a
strike 	at 	this 	stage 	would 	not 	constitute 	a 	per 	se 	unfair
practice, 	then 	neither 	would 	the 	employer's 	unilateral 	adoption
of 	its 	last 	best 	offer. 	Thus, 	the 	district 	was 	attempting 	to
characterize 	its 	action 	as 	"self-help" 	akin 	to 	the 	strike. 	The
court 	rejected 	the 	analogy, 	finding 	that 	the 	two 	are 	not
equivalent, 	since 	the 	employer's 	analogous 	self-help 	remedy
would 	be 	a 	lock-out. 	The 	court 	explains 	the harm 	inherent 	in
the 	employer's 	unilateral 	change, 	but 	does 	not 	address 	the
legality 	of 	strikes 	generally, 	or 	the 	unavailability 	of 	the
lockout 	as 	an 	employer 	self-help 	action.
That 	employees 	may 	commit 	a 	unilateral 	change 	cognizable 	as
an 	unfair 	labor 	practice 	is 	by no 	means 	a 	novel 	proposition.
The 	National 	Labor 	Relations 	Board 	(NLRB) 	has 	likewise 	held
that 	private 	sector 	employees 	commit 	unfair 	practices 	under 	the
federal 	law when 	they 	unilaterally change 	the 	status 	quo
without 	having 	first 	successfully negotiated 	such 	a 	change, 	or
when 	they 	unilaterally 	change 	the 	status 	quo 	in 	order 	to
achieve 	a 	bargaining 	goal. 	As 	recognized 	in 	basic 	labor 	law
texts:
136

Although 	for 	obvious 	reasons, 	the 	charge 	of
refusal 	to 	bargain 	by 	taking 	"unilateral
action" 	on wages 	and 	working 	conditions 	is
normally 	leveled 	at 	the 	employer, 	there 	are
rare 	cases 	in which 	a 	union 	has 	been 	found
to 	violate 	section 	8(b)(c)24 	by 	forcing 	a
change 	in 	working 	conditions 	without
bargaining 	with 	the 	employer. 	(Gorman,
Labor 	Law 	(1976 	ed.) 	p. 	442.)25
Initially 	it 	may 	be 	observed 	that 	this 	"rarity" 	of 	unfair
unilateral 	changes 	by 	private 	employees--particularly with
respect 	to 	post-impasse 	changes 	in 	the 	status 	quo--is 	the
result 	of 	private 	employees 	having 	a 	protected 	right 	under 	the
federal 	act26 to 	engage 	"in 	concerted 	activities 	for 	the
purpose 	of 	collective 	bargaining 	or 	other 	mutual 	aid 	or
protection." 	Accordingly, 	strikes 	and 	other 	concerted
activities 	of 	private 	employees 	which 	unilaterally 	change 	the
status 	quo 	in 	their 	hours, 	duties, 	and 	working 	conditions 	are
not 	unfair 	labor 	practices 	under 	the 	federal 	act 	because 	of 	the
private 	employees' 	protected 	right 	to 	engage 	in 	"post-impasse
strikes" 	and/or 	"unfair 	practice 	strikes" 	to 	obtain 	their
2429 	U.S.C.A. 	section 	158(b)(3):
(b) 	it 	shall 	be 	an 	unfair 	labor 	practice
for 	a 	labor 	organization 	or 	its 	agents--(3)
to 	refuse 	to 	bargain 	collectively with 	an
employer, 	provided 	it 	is 	the 	representative
of 	his 	employees 	subject 	to 	the 	provisions
of 	section 	159(a) 	of 	this 	title; 	...
25And 	see: 	1 	Morris, 	The 	Developing 	Labor 	Law 	(2d 	ed.
1983) 	pages 	564-566; 	BNA, 	The 	Developing 	Labor 	Law, 	2d 	ed.,
rst 	Supplement 	1982-1984 	(1985) 	pages 	147-148.
2629 	U.S.C.A., 	section 	157.
137

bargaining 	goals 	or 	to 	protect 	themselves 	from 	an 	employer's
unfair 	practice.
In 	System Council 	T-6, 	International 	Brotherhood 	of
Electrical 	Workers 	(1978) 	236 	NLRB 	1209 	[98 	LRRM 	1497]
enforcement 	granted 	NLRB 	v. 	System Council 	T-6 	(1st 	Cir. 	1979).
599 	F.2d 	5 	[101 	LRRM 	2413], 	the 	employer 	had 	an 	established
practice 	of 	temporarily 	assigning 	unit 	members 	to 	supervisory
positions. 	After 	unsuccessfully 	attempting 	to 	get 	the 	employer
to 	stop 	the 	practice, 	the 	union 	promulgated 	an 	internal 	union
rule 	prohibiting 	union 	members 	from 	accepting 	such 	temporary
assignments. 	The 	NLRB 	held 	that 	such 	union 	action 	affected 	the
existing 	status 	guo 	and 	thus 	constituted 	an 	unfair 	labor
practice 	in 	that 	the 	union 	had 	failed 	to 	negotiate 	the 	change.
And 	while 	there 	was 	also 	contractual 	recognition 	of 	the
employer's 	right 	to 	make 	such 	temporary 	assignments, 	the 	NLRB
cogently 	observed:
Furthermore, 	even 	if 	we 	were 	to 	find 	no
contractual 	recognition 	of 	the 	Company's
right 	to 	make 	temporary 	management
assignments, 	the 	Union's 	conduct 	would 	still
violate 	the 	Act. 	Company 	appointment 	of
bargaining 	unit 	employees 	to 	temporary
supervisor 	slots 	is 	a 	common 	and 	established
practice. 	Consequently, 	by 	promulgating 	the
ban 	on 	such 	assignments, 	the 	Union
unilaterally 	changed 	a 	term 	and 	condition 	of
employment 	over 	which 	they were 	required 	to
bargain.
(236 	NLRB 	at 	1210.)
Accord 	Communication 	Workers 	of 	America, 	Local 	1170 	(1972)
194 	NLRB 	872 	[79 	LRRM 	1113] 	enforcement 	granted 	NLRB 	v.
13'8

Communication Workers 	of 	America, 	Local 	1170 	(2d 	Cir. 	1972)
474 	F.2d 	778, 	780-782 	[82 	LRRM 	1201]).
In 	Bay 	Counties 	Council 	of 	Carpenters, 	Local 	478 	(1964)
145 	NLRB 	1775 	[55 	LRRM 	1219], 	remanded 	Associated 	Home
Builders 	v. 	NLRB 	(9th 	Cir. 	1965) 	352 	F.2d 	745 	[60 	LRRM 	2345], 	a
collective 	bargaining 	agreement 	between 	an 	employer 	group 	and 	a
union 	group 	contained 	no 	provision 	or 	mention 	concerning 	any
production 	limitation. 	The 	unions 	unilaterally 	and 	internally
established 	production 	quotas 	and 	fined 	union 	members 	by
deducting 	the 	fines 	from 	their 	union 	dues 	if 	they 	exceeded 	the
quotas. 	The 	NLRB 	held 	that 	the 	unions' 	application 	of 	the 	dues
to 	the 	imposed 	fines 	constituted 	an 	interference 	with 	the
employees' 	rights 	and 	an 	unfair 	practice. 	The 	employers
appealed 	on 	a 	separate 	issue, 	contending 	that 	the 	NLRB 	had 	not
addressed 	or 	rendered 	a 	decision 	on whether 	the 	unions' 	action
also 	constituted 	an 	unfair 	practice 	in 	that 	it 	unilaterally
changed 	the 	terms 	and 	conditions 	of 	employment. 	The 	federal
appeals 	court 	agreed 	that 	it 	was 	such 	a 	unilateral 	change
and--indicating 	that 	the 	unions' 	unilateral 	change 	was 	a
significant 	unfair 	practice 	against 	the 	employers--remanded 	the
case 	back 	to 	the 	NLRB 	for 	further 	appropriate 	proceedings,
findings 	and 	remedy. 	(60 	LRRM 	at 	2350-2353.)
See 	also, 	IATSE, 	Local 	702 	(1972) 	197 	NLRB 	937 	[80 	LRRM
1820] 	[after 	unsuccessful 	effort 	to 	negotiate 	change 	in
employer's 	right 	to 	transfer 	irrespective 	of 	union 	seniority,
union's 	invocation 	of 	internal 	seniority 	rule 	constituted
139

unlawful 	unilateral 	change 	in 	terms 	and 	conditions 	of
employment]; 	Teamsters 	Local 	100 	(1974) 	214 	NLRB 	1094 	[88 	LRRM
1036], 	enforcement 	granted 	NLRB 	v. 	Teamsters 	Local 	100
(6th 	Cir. 	1975) 	526 	F.2d 	731 	[90 	LRRM 	3310] 	[union's 	order 	to
members 	not 	to 	perform other 	assigned 	work 	violated 	provision
of 	the 	collective 	bargaining 	agreement 	and 	was 	held 	to
constitute 	an 	unlawful 	unilateral 	change 	in 	the 	terms 	and
conditions 	of 	employment]; 	Brotherhood 	of 	Painters, 	New York
District 	Council 	No. 	9 	(1970) 	186 	NLRB 	964 	[75 	LRRM 	1465],
enforcement 	granted 	New York 	District 	Council 	No. 	9 	v. 	NLRB
(2d 	Cir. 	1971) 	453 	F.2d 	783 	[79 	LRRM 	2145], 	cert. 	den. 	408 	U.S.
930 	(1972) 	[after 	failing 	to 	achieve 	production 	quota 	in
negotiations, 	union's 	internal 	adoption 	of 	production 	quota
constituted 	an 	unlawful 	unilateral 	change 	in 	terms 	and
conditions 	of 	employment]; 	International 	Chemical 	Workers
Union, 	Local 	29 	(1977) 	228 	NLRB 	1101 	[94 	LRRM 	1696] 	[union's
insistence 	on 	recording 	grievance 	meeting, 	which 	violated
established 	practice, 	found 	to 	constitute 	unlawful 	unilateral
change]; 	Stayton 	Canning 	Company Cooperative, 	supra, 	275 	NLRB
No. 	127, 	p. 	13 	[119 	LRRM 	1236]; 	(1981)
253 	NLRB 	1090 	[106 	LRRM 	1201], 	enforcement 	den. 	sub 	nom.
NLRB 	v. 	Teamsters, 	Local 	582 	(9th 	Cir. 	1982) 	670 	F.2d 	855
[109 	LRRM 	3226]; 	Brotherhood 	of 	Teamsters, 	Local 	70 	(1972)
198 	NLRB 	552 	[80 	LRRM 	1727] 	sub 	nom. 	Nabisco, 	Inc. 	v. 	NLRB
(2d. 	Cir. 	1973) 	479 	F.2d 	770 	[83 	LRRM 	2612]; 	United Mine
Workers 	{1967) 	165 	NLRB 	592, 	593-594 	[65 	LRRM 	1450]; 	Sheet
140

Metal 	Workers 	International 	Association, 	Local 	141 	(1965)
153 	NLRB 	537, 	543 	[5 	LRRM 	1512]; 	United 	Plumbers, 	Local 	420
(1981) 	254 	NLRB 	445 	[106 	LRRM 	1183]; 	and 	Communication Workers
of 	America, 	Local 	1122 	(1976) 	226 	NLRB 	97 	[93 	LRRM 	1161] .)
In 	the 	absence 	of 	a 	negotiated, 	agreed 	change 	in 	their
hours, 	duties, 	and/or 	other 	terms 	and 	conditions 	of 	their
employment, 	public 	school 	employees 	may 	not 	change 	or 	refuse 	to
abide 	by 	the 	status 	quo 	in 	their 	hours, 	duties, 	and 	terms 	and
conditions 	of 	employment 	(Gov. 	Code, 	sec. 	3543.6(c)), 	any 	more
than 	the 	public 	school 	employer 	may unilaterally 	change 	the
status 	quo 	(other 	than 	by 	post-impasse 	adoption 	of 	its 	last
best 	offer). 	(Gov. 	Code, 	sec. 	3543.S(c).) 	Unilateral 	changes
in 	the 	status 	quo 	by 	the 	public 	school 	employees 	engaging 	in
work 	stoppages 	are 	just 	as 	destablizing 	and 	disorienting 	to
employer-employee 	affairs 	as 	are 	unilateral 	changes 	in 	the
status 	quo 	committed 	by 	the 	public 	school 	employer. 	(San Mateo
County 	Community College 	District 	(1979) 	PERB 	Decision 	No. 	94,
pp. 	14-17.)
Acquiring 	Agreement 	Through 	the 	Use 	of 	Work 	Stoppages
Since 	public 	school 	employee 	strikes 	are 	contrary 	to 	public
policy, 	a 	negotiated 	agreement 	secured. in 	part 	on 	the 	basis 	of
the 	striking 	employees 	returning 	to 	work 	and/or 	not 	renewing
their 	work 	stoppage 	is 	based 	on 	unlawful 	consideration, 	and 	the
union 	that 	employs 	such 	unlawful 	consideration 	has 	failed 	to
negotiate 	in 	good 	faith.
141

A collective 	bargaining 	agreement 	is 	a 	contract 	and 	is
subject 	to 	the 	applicable 	contract 	laws 	of 	this 	State.
California 	Civil 	Code 	section 	1607 	prescribes 	as 	to 	contracts:
The 	consideration 	of 	a 	contract 	must 	be
lawful 	within 	the 	meaning 	of 	section 	sixteen
hundred 	and 	sixty-seven.
And 	Civil 	Code 	section 	1667 	prescribes:
That 	is 	not 	lawful 	which 	is:
1. 	Contrary 	to 	an 	express 	provision 	of 	law;
2. 	Contrarv 	to 	the 	policy 	of 	express 	law,
though 	not 	expressly 	prohibited; 	or
3. 	Otherwise 	contrary 	to 	good 	morals.
(Emphasis 	added.)
Thus, 	to 	be 	lawful, 	a 	contract 	cannot 	be 	based 	on 	unlawful
consideration, 	that 	is, 	consideration 	that 	is 	contrary 	to
public 	policy.
The 	public 	policy 	of 	this 	state 	resides 	first 	with 	the
people 	of 	California 	as 	expressed 	in 	their 	Constitution, 	and
then 	with 	the 	representatives 	of 	the 	people--the
Legislature--as 	expressed 	in 	the 	statutes. 	(Civ. 	Code,
secs. 	22, 	22.1; 27 Jensen 	v. 	Traders 	& General 	Insurance 	Co.
27The 	Civil 	Code 	states:
22. 	Law 	is 	a 	solemn 	expression 	of 	the
supreme 	power 	of 	the 	state.
22.1 	The 	will 	of 	the 	supreme 	power 	is
expressed:
(a) 	By 	the 	Constitution
(b) 	By 	the 	statutes.
142

(1959) 	52 	Cal.2d 	786, 	794; 	Brunzell 	Construction 	Co. 	v.
Harrah's 	Club 	(1967) 	253 	Cal.App.2d 	764, 	775; 	Nevcal
Enterprises 	Inc. 	v. 	Cal-Neva 	Lodge, 	Inc. 	(1961) 	194 	Cal.App.2d
177, 	180, 	hg. 	den.) 	Then, 	the 	public 	policy may 	also 	be 	found
in 	the 	common 	law 	and 	judicial 	modifications 	thereto, 	to 	the
extent 	they 	are 	consistent 	with 	the 	express 	provisions 	of 	the
Constitution 	and 	statutes 	and 	the 	underlying 	policies. 28
However, 	as 	expressed 	by 	a 	unanimous 	Supreme 	Court 	in
Ferguson 	v. 	Keays, 	supra:
. 	the 	court 	should 	only 	exercise 	those
common 	law 	powers 	which 	are 	not 	otherwise
repugnant 	to 	or 	inconsistent 	with 	our
Constitution 	and 	statutes; 	inherent 	powers
should 	never 	be 	exercised 	in 	such 	a 	manner
as 	to 	nullify 	existing 	legislation 	or
frustrate 	legitimate 	legislative 	policy.
(4 	Cal.3d 	649, 	654.)
Thus, 	if 	the 	Constitution 	and 	the 	statutes 	are 	silent 	on
the 	subject, 	then 	the 	common 	law, 	including 	its 	modifications
by 	the 	courts 	(Muskopf 	v. 	Corning 	Hospital 	District, 	supra,
55 	Cal.2d 	211; 	Rodriquez 	v. 	Bethlehem 	Steel 	Corp., 	supra,
12 	Cal.3d 	382, 	394-395; 	Liv. 	Yellow Cab 	Co., 	supra, 	13 	Cal.3d
804-814; 	Victory Oil 	Co. 	v. 	Hancock Oil 	Co., 	supra,
125 	Cal.App.2d 222, 	229), 	expresses 	public 	policy, 	but 	only 	so
28civil 	Code 	section 	22.2 	states:
22.2 	The 	common 	law 	of 	England, 	so 	far 	as
it 	is 	not 	repugnant 	to 	or 	inconsistent 	with
the 	Constitution 	of 	the 	United 	States, 	or
the 	Constitution 	or 	laws 	of 	this 	State, 	is
the 	rule 	of 	decision 	in 	all 	the 	courts 	of
this 	State. 	(Emphasis 	added.)
143

far 	as 	it 	is 	not 	repugnant 	to 	or 	inconsistent 	with 	other
provisions 	of 	our 	Constitution 	or 	statutes. 	(Ferguson 	v.
·~--=---~' 	supra, 	4 	Cal.3d 	649, 	654; 	City 	of 	Rohnert 	Park 	v.
Superior 	Court, 	supra, 	146 	Cal.App.3d 	420, 	427-428; 	Lowman 	v.
Stafford, 	, 	226 	Cal.App.2d 	31, 	39; 	v. 	City 	of
San Mateo, 	supra, 	122 	Cal.App.2d 	355, 	359; 	Civ. 	Code, 	sec.
22.2.)
While 	it 	is 	true 	that 	where 	the 	Constitution 	and 	statutes
are 	silent 	on 	a 	subject, 	the 	judiciary may 	declare 	what 	they
perceive 	the 	public 	policy 	to 	be 	(Safeway 	Stores 	v. 	Retail
Clerks 	International 	Association 	(1953) 	41 	Cal.2d 	567, 	574-575;
Altschul 	v. 	Sayble 	(1978) 	83 	Cal.App.3d 	153, 	162; 	Kinner 	v.
World 	Savings 	& Loan 	Association 	(1976) 	57 	Cal.App.3d 	724,
728 	729, 	hg. 	den.), 	when 	the 	Constitution 	declares 	the 	public
policy 	or 	the 	Legislature 	statutorily 	addresses 	the 	subject,
the 	courts 	may 	not 	declare 	the 	public 	policy 	v. 	Gino's,
Inc. 	(1984) 	153 	Cal.App.3d 	379, 	382).
Turning 	to 	the 	California 	Constitution 	and 	the 	state
statutes, 	the 	public 	policy 	is 	clear 	with 	respect 	to 	the
uninterrupted 	operation 	of 	the 	public 	schools 	and 	to 	strikes 	by
public 	school 	employees.
At 	the 	zenith 	of 	California's 	constitutionally 	expressed
public 	policy, 	is 	the 	operation 	of 	the 	public 	schools,
including 	the 	mandate 	that 	they 	be 	operated 	for 	a 	minimum of
six 	months 	each 	year. 	(Cal. 	Const., 	art. 	IX; 	art. 	XVI, 	sec. 	8;
art. 	I, 	sec. 	26; 	State 	Board 	of 	Education 	v. 	Levit, 	supra,
144

56 	Cal.2d 	441, 	460; 	Serrano 	v. 	Priest, 	supra, 	5 	Cal.3d 	584,
604-610, 	619; 	Hartzell 	v. 	Connell, 	supra, 	35 	Cal.3d 	899,
906-909; 	Slayton 	v. 	Pomona 	Unified 	School 	District, 	supra,
161 	Cal.App.3d 	538, 	548-549; 	California 	Teachers 	Association 	v.
Board 	of 	Education 	of 	the 	Glendale 	Unified 	School 	District,
supra, 	109 	Cal.App.3d 	738-744.) 	This 	constitutional 	mandate 	is
carried 	out 	by 	the 	Legislature 	through 	the 	public 	school
districts 	and 	is 	implemented 	and 	reinforced 	through 	the
Education 	Code's 	comprehensive 	statutory 	scheme 	which 	includes
the 	minimum 	school 	year 	of 	nearly 	nine 	months 	and 	compulsory
full-time 	school 	attendance. 	(Ed. 	Code, 	secs. 	1-99176;
California 	Teachers 	Association 	v. 	Board 	of 	Trustees 	of
Fullerton 	Union 	High 	School 	District, 	supra, 	82 	Cal.App.3d 	244,
254; 	Myers 	v. 	Arcata 	Union 	High 	School 	District, 	supra,
269 	Cal.App.2d 	549-556; 	Akin 	v. 	Board 	of 	Education 	of 	Riverside
Unified 	School 	District, 	supra, 	262 	Cal.App.2d 	161, 	167; 	In 	re
Shinn, 	supra, 	195 	Cal.App.2d 	683, 	686-687.)
Furthermore, 	this 	constitutional 	public 	policy, 	with
respect 	to 	the 	operation 	of 	the 	public 	schools 	and 	compulsory
full-time 	school 	attendance, 	is 	mirrored 	by 	the 	recognized
constitutional 	right 	of 	California's 	children 	to 	attend 	school
and 	to 	receive 	such 	public 	school 	education. 	(Slayton 	v.
Pomona 	Unified 	School 	District, 	supra, 	161 	Cal.App.3d 	538,
548-549; 	Hartzell 	v. 	Connell, 	supra, 	35 	Cal.3d 	899, 	906-911;
Serrano 	v. 	Priest, 	supra, 	5 	Cal.3d 	584, 	595-596, 	605-610.)
Since 	strikes 	or 	other 	concerted 	work 	stoppages 	by 	public
145

school 	employees 	necessarily 	interfere 	with 	and 	disrupt 	the
operation 	of 	the 	public 	schools, 	they 	are 	clearly 	contrary 	to
the 	constitutionally 	and 	statutorily established 	public
policies 	of 	California 	concerning 	the 	operation 	of 	the 	public
schools.
Moreover, 	the 	Legislature 	has 	enacted 	a 	series 	of
successive 	acts 	addressing 	public 	school 	employer-employee
labor 	relations; 	the 	former 	pre-Winton 	and 	Winton 	Acts 	(former
Ed. 	Code, 	secs. 	13080 	13088) 	and 	the 	present 	EERA 	{Gov. 	Code,
secs. 	3540-3549.3). 	In 	these 	acts, 	the 	Legislature 	has
specifically withheld 	from 	public 	school 	employees 	the 	right 	to
strike. 	{See 	former 	Ed. 	Code, 	sec. 	13082 	and 	present 	Gov.
Code, 	sec. 	3543; 	Los 	Angeles 	Metropolitan 	Transit 	Authority 	v.
Brotherhood 	of 	Railroad 	Trainmen, 	supra, 	54 	Cal.2d 	684,
687-689.) 	To 	insure 	that 	there 	be 	no 	doubt 	as 	to 	its 	intent
regarding 	public 	school 	employee 	strikes, 	the 	Legislature
specifically 	prohibited 	EERA 	from 	being 	construed 	so 	as 	to 	give
public 	school 	employees 	the 	right 	to 	strike .granted 	to 	other
employees 	by Labor 	Code 	section 	923. 	(Gov. 	Code, 	sec. 	3549;
and 	see 	former 	Ed. 	Code, 	sec. 	13088; 	Westminster 	School
v. 	Superior 	Court 	& Westminster 	Teacher 	Association,
supra, 	28 	Cal.App.3d 	120, 	128.) 	Since 	Labor 	Code 	section 	923's
granting 	of 	the 	right 	to 	strike 	to 	private 	employees 	is 	a
statutory 	declaration 	of 	public 	policy 	(Lab. 	Code, 	sec. 	923;
Schwartz-Torrance 	Investment 	Corp. 	v. 	Bakery 	& Confectionery
Workers' 	Union, 	supra, 	61 	Cal.2d 	766, 	769; 	Glenn 	v.
146

Golden 	Cock 	Inn, 	supra, 	192 	Cal.App.2d 	793, 	796-797;
Annenberg 	v. 	Southern 	California 	District 	Council 	of 	Laborers,
supra, 	38 	Cal.App.3d 	637, 	644; 	Holayter 	v. 	Smith, 	supra,
29 	Cal.App.3d 	326, 	333; 	Elsis 	v. 	Evans, 	supra, 	157 	Cal.App.2d
399, 	408-409), 	the 	deliberate 	ommission 	by 	the 	Legislature 	from
Government 	Code 	section 	3543 	of 	the 	right 	to 	strike 	and 	the
Legislature's 	proscription 	in 	Government 	Code 	section 	3549
against 	construing 	EERA 	so 	as 	to 	give 	public 	school 	employees
the 	right 	to 	strike 	are, 	similarly, 	statutory 	declarations 	by
the 	Legislature 	of 	the 	public 	policy 	against 	public 	school
employee 	strikes 	(Los 	Angeles 	Metropolitan 	Transit 	Authority 	v.
Brotherhood 	of 	Railroad 	Trainmen, 	supra, 	54 	Cal.2d 	684,
687-689, 	694).
As 	to 	County 	Sanitation's 	holding 	that 	public 	employee
strikes 	are 	no 	longer 	illegal 	and 	tortious 	under 	California
common 	law, 	that 	decision 	did 	not 	address 	whether 	public 	school
employees 	have 	a 	right 	to 	strike 	under 	EERA. 	Such 	a 	judicial
.reversal 	of 	the 	California 	common 	law, 	that 	is, 	that 	all 	public
employee 	strikes 	are 	no 	longer 	illegal 	and 	tortious, 	can
neither 	override 	nor 	subvert 	the 	public 	policy 	as 	declared 	by
the 	Constitution 	and 	the 	Legislature. 	(Cal. 	Const., 	art. 	IX,
art. 	I, 	sec. 	26; 	Ed. 	Code, 	secs. 	41420, 	46200-46300,
48200-48810; 	Gov. 	Code, 	sec. 	3549; 	Civ. 	Code, 	sec. 	22.2;
Ferguson 	v. 	Keays, 	supra, 	4 	Cal.3d 	649, 	654; 	City 	of 	Rohnert
Park v. 	Superior 	Court, 	supra, 	146 	Cal.App.3d 	420, 	427-428.)
Accordingly, 	County 	Sanitation 	cannot, 	and 	did 	not, 	change 	the
147

constitutional 	and 	statutory 	public 	policies 	with 	respect 	to
the 	operation 	of 	the 	schools 	and 	public 	school 	employee 	strikes.
Given 	then 	that 	public 	school 	employee 	strikes 	are 	contrary
to 	public 	policy, 	forebearance 	from 	striking 	cannot 	act 	as
consideration 	for 	a 	contract, 	and 	thus 	their 	use 	to 	achieve
negotiation 	demands 	constitutes 	bad 	faith 	bargaining.
To 	obtain 	a 	lawful 	change 	in 	their 	wages, 	hours, 	duties
and/or 	other 	terms 	and 	conditions 	of 	employment, 	public 	school
employees 	must 	meet 	and 	negotiate 	in 	good 	faith--including 	the
proffering 	of 	lawful 	consideration 	to 	the 	public 	school
employer--in 	order 	to 	obtain 	a 	lawful 	agreement 	securing 	a
change 	or 	changes 	in 	their 	wages 	and 	working 	conditions. 	If
they 	fail 	to 	obtain 	such 	lawful 	contractual 	changes 	in 	the
pre-impasse 	bargaining 	(Gov. 	Code, 	secs. 	3540.l(h), 	3543.2,
3543.3, 	3543.5(c), 	3543.6(c), 	3543.7) 	or 	in 	the 	statutory
impasse 	proceedings 	(Gov. 	Code, 	secs. 	3548-3548.4, 	3543.5(e),
3543.6(d)), 	public 	school 	employees 	are 	left 	post-impasse 	with
the 	unchanged 	status 	quo 	in 	their 	wages 	and 	working
con d 1't'ions. 29 	Either 	the 	public 	school 	employer 	or 	the
public 	school 	employees 	will 	have 	to 	make 	some 	positive, 	lawful
"movement" 	in 	their 	respective 	bargaining 	positions 	in 	order 	to
have 	the 	parties 	return 	to 	the 	bargaining 	table 	and 	achieve 	a
29save 	and 	except 	for 	"last 	best 	offer" 	changes 	by 	the
public 	school 	employer 	such 	as 	implementing 	a 	percentage 	wage
increase 	and/or 	a 	health 	and 	welfare 	benefits 	increase 	which
constituted 	the 	employer's 	last 	best 	offer. 	(Modesto 	City
Schools, 	supra, 	PERB 	Decision 	No. 	291.)
148

mutual 	agreement 	as 	to 	any 	changes. 	(Modesto 	City 	Schools,
supra, 	PERB 	Decision 	No. 	291, 	pp. 	52-65.)
But 	public 	school 	employees 	may 	not 	engage 	in 	concerted
activities 	which 	are 	contrary 	to 	public 	policy 	in 	order 	to
pressure 	and 	coerce 	the 	public 	school 	employer 	to 	give 	in 	and
yield 	to 	the 	contract 	changes 	they 	seek 	in 	return 	for 	the
public 	school 	employees 	ending 	their 	strike 	and 	the 	concomitant
interference 	and 	disruption 	in 	the 	operation 	of 	the 	public
schools.
In 	Grasko 	v. 	Los 	Angeles 	City 	Board 	of 	Education 	(1973)
31 	Cal.App.3d 	290, 	a 	pre-EERA 	case 	occurring 	under 	the 	Winton
Act 	(former 	Ed. 	Code, 	secs. 	13080-13088), 	public 	school
teachers 	had 	engaged 	in 	a 	four-and-one-half 	week 	strike 	to
obtain 	a 	written 	agreement 	between 	the 	teachers' 	Negotiating
Council 	{former 	Ed. 	Code, 	sec. 	13085) 	and 	the 	Los 	Angeles
Unified 	School 	District. 	The 	court 	held 	that 	California 	school
districts 	were 	not 	authorized 	under 	the 	Winton 	Act 	to 	enter
into 	binding 	agreements 	with 	teachers' 	negotiating 	councils.
(31 	Cal.App.3d 	at 	300-305.) 	The 	court 	also 	held 	that
notwithstanding 	that 	the 	agreement 	was 	unauthorized, 	the
agreement 	was 	invalid 	in 	that 	part 	of 	the 	consideration 	for 	the
agreement 	was 	the 	teachers' 	termination 	of 	the 	strike. 	Public
school 	strikes 	being 	contrary 	to 	public 	policy, 	the 	termination
of 	the 	strike 	in 	partial 	exchange 	for 	the 	school 	district's
agreement 	to 	the 	teachers' 	demands 	constituted 	unlawful
149

consideration 	and 	invalidated 	the 	agreement. 	As 	set 	forth 	in
Grasko 	in 	31 	Cal.App.3d 	at 	297-298:
The 	Agreement 	Was 	Properly 	Enjoined
as 	Contrary 	to 	Public 	Policy
The 	trial 	court 	found 	that 	had 	the 	illegal
teachers' 	strike 	not 	occurred, 	the 	board 	of
education would 	not 	have 	consented 	to 	enter
into 	the 	agreement 	herein 	involved
In 	view 	of 	the 	length 	of 	the 	strike, 	the
number 	of 	teachers 	involved, 	and 	the 	effect
of 	the 	strike 	upon 	the 	school 	district, 	it
is 	readily 	apparent 	that 	the 	termination 	of
the 	strike 	formed 	a 	substantial 	part 	of 	the
consideration 	for 	the 	proposed 	agreement, 	as
the 	court's 	findings 	clearly 	imply.
The 	agreement 	is 	invalid 	since 	the
consideration was 	not 	lawful. 	(Civ. 	Code
sections 	1607, 	1667.)
We 	think 	the 	reasoning 	of 	the Wyoming
Supreme 	Court 	in 	Campbell 	v. 	Prater, 	64 	Wyo.
293 	(191 	P.2d 	160), 	is 	particularly 	apropos
here.
"It 	has 	been 	said 	that 	'just 	as 	a
contract 	may 	be 	invalid 	because 	it 	is
contrary 	to 	public 	policy 	in 	its 	substance
and 	purposes, 	so 	it 	may 	be 	invalid 	because
it 	is 	contrary 	to 	public 	policy 	in 	respect
of 	the 	coercive 	method 	of 	its 	procurement.'
Salmond 	on 	Contracts, 	1947 	Ed., 	286, 	quoted
from 	an 	earlier 	edition 	in Mutual 	Finance 	v.
John 	Wetton 	& Sons 	(1937) 	2 	K.B. 	389. 	See,
also, 	Restatement 	of 	Contracts, 	section
578." 	(Italics 	added.) 	(64 	Wyo. 	at 	p. 	311,
191 	P.2d 	at 	p. 	166.)
The 	parallel 	is 	obvious, 	and we 	hold 	that 	it
was 	contrary 	to 	public 	policy 	for 	public
school 	employees 	who 	were 	conducting 	an
illegal 	strike 	to 	exact 	a 	consideration 	for
the 	cessation 	of 	that 	illegal 	activity. 	The
subject 	agreement 	was 	therefore 	void 	(not
merely 	voidable) 	and 	the 	trial 	court
properly 	enjoined 	its 	threatened
150

consummation.30
This 	invalidity 	of 	agreements 	when 	the 	consideration 	is
unlawful 	with 	respect 	to 	public 	policy was 	recently 	expressed
in 	Kallen 	v. 	(1984) 	157 	Cal.App.3d 	940, 	949-950:
A contract 	may 	be 	illegal 	or 	in
contravention 	of 	public 	policy 	either 	in 	its
apparent 	substance 	and 	purpose 	[citation] 	or
in 	the 	consideration upon 	which 	it 	is 	based
[citations]. 	Unlawful 	consideration 	is 	that
which 	is: 	"l. 	Contrary 	to 	an 	express
provision 	of 	law; 	2. 	Contrary 	to 	the 	policy
of 	express 	law 	though 	not 	expressly
prohibited; 	or, 	3. 	Otherwise 	contrary 	to
good 	morals." 	(Civ. 	Code, 	secs.
1607-1667.) 	The 	concept 	of 	unlawful
consideration 	embraces 	a 	promise 	to 	refrain
from 	wrongful 	conduct 	directed 	at 	the
promisee 	or 	a 	third 	person 	[citations]. 	As
Campbell 	noted 	in 	a 	different 	factual
context, 	illegal 	consideration 	encompasses
such 	a 	promise 	because 	it 	is 	contrary 	to 	law
or 	public 	policy 	for 	an 	individual 	who 	has
acted 	wrongfully 	to 	the 	injury 	of 	another 	to
exact 	a 	consideration 	for 	relinquishing 	such
conduct. 	In 	other 	words, 	the 	law 	finds
repugnant 	the 	coercion 	inherent 	in 	a 	promise
which 	carries 	the 	implied 	threat 	that,
without 	acquiescence 	in 	the 	return 	promise
exacted, 	the 	wrongful 	conduct 	will 	continue.
[Citations.]
In 	like 	principle, 	if 	public 	school 	employees 	seek 	to 	secure 	an
agreement 	to 	their 	bargaining 	demands 	by 	engaging 	in 	a 	strike
with 	its 	concomitant 	interference 	and 	disruption 	in 	the
operation 	of 	the 	public 	schools, 	and 	the 	strike's 	cessation 	or
30Grasko was 	questioned, 	but 	not 	overruled, 	in 	County 	of
Los 	Angeles 	v. 	Superior 	Court 	(1975) 	13 	Cal.3d 	721, 	728-729;
City 	and 	County 	of 	San 	Francisco 	v. 	Cooper 	(1975) 	13 	Cal.3d
898, 	916 	917. 	Cf 	East 	Bay Municipal 	Employees 	Union 	v. 	County
of 	Alameda 	(1970) 	3 	Cal.App.3d 	578, 	584.
151

nonrenewal 	forms 	part 	of 	the 	consideration 	for 	the 	public
school 	employer's 	acquiescence 	to 	the 	employees' 	demands, 	the
agreement 	so 	obtained 	would 	be 	invalid 	as 	being 	based 	in 	part
on 	unlawful 	consideration. 	(Cal. 	Const., 	art. 	IXi 	Civ. 	Code,
secs. 	1607-1667; 	Ed. 	Code, 	secs. 	41420-48200; 	Serrano 	v.
""'-====-=' 	supra, 	4 	Cal.3d 	584, 	604-610; 	Hartzell 	v.
supra, 	35 	Cal.3d 	899, 	906-909; 	California 	Teachers
Association 	v. 	Board 	of 	Education 	of 	the 	Glendale 	Unified
School 	District, 	supra, 	109 	Cal.App.3d 	738-744; 	City 	& County
of 	San 	Francisco 	v. 	Cooper 	(1975) 	13 	Cal.3d 	898, 	916-918;
Kallen 	v. 	, 	supra, 	157 	Cal.App.3d 	940, 	949 	950; 	Grasko 	v.
Los 	Angeles 	City 	Board 	of 	Education, 	supra, 	31 	Cal.App.3d 	290,
297-298.)
Accordingly, 	it 	is 	an 	unfair 	practice 	under 	EERA 	for 	public
school 	employees 	to 	engage 	in 	strikes 	or 	other 	public 	school
work 	stoppages 	to 	force 	the 	public 	school 	employer 	to
capitulate 	to 	their 	demands 	in 	order 	to 	keep 	the 	public 	schools
,in 	operation. 	By 	engaging 	in 	such 	conduct, 	public 	school
employees 	are 	failing 	and 	refusing 	to 	negotiate 	in 	good 	faith
to 	obtain 	their 	bargaining 	goals. 	(Gov. 	Code, 	sec.
3543.6(c).) 	They 	are 	"negotiating" 	away 	from 	the 	bargining
table 	by 	engaging 	in 	a 	concerted 	action which 	is 	clearly
contrary 	to 	public 	policy 	and 	are 	presenting 	the 	public 	school
employer 	with 	an 	unlawful 	consideration 	(stopping 	the 	strike)
to 	obtain 	their 	demands. 	(Civ. 	Code, 	secs. 	1607, 	1667;
Kallen 	v. 	Delug, 	157 	Cal.App.3d 	940, 	949-950; 	v.
152

Los 	Angeles 	City 	Board 	of 	Education, 	supra, 	31 	Cal.App.3d 	290,
297-298.)
Public 	school 	employee 	strikes 	thus 	constitute 	unfair
practices 	and 	are 	unlawful 	under 	EERA 	in 	that 	the 	employees 	are
failing 	or 	refusing 	to 	meet 	and 	negotiate 	in 	good 	faith 	when
they: 	(1) 	disrupt 	and 	interfere with 	the 	continuity 	and
quality 	of 	educational 	services 	as 	a 	coercive 	pressure 	tactic
to 	obtain 	their 	negotiating 	demands, 	(2) 	make 	a 	unilateral
change 	in 	the 	status 	quo, 	and/or 	(3) 	attempt 	to 	acquire 	an
agreement 	to 	their 	demands 	through 	the 	use 	of 	unlawful
consideration. 	(Gov. 	Code, 	sec. 	3543.6(c).)
Work 	Stoppages 	Constitute 	Violations 	of 	EERA
While 	work 	stoppages 	constitute 	unfair 	practices 	in
violation 	of 	EERA 	section 	3543.6(c) 	for 	the 	reasons 	set 	forth
above, 	they 	likewise 	constitute 	independent 	violations 	of 	EERA
when 	they 	disrupt 	and 	interfere 	with 	the 	continuity 	and 	quality
of 	educational 	services.
EERA was 	established 	"to 	promote 	the 	improvement 	of
personnel 	management 	and 	employer-employee 	relations 	within 	the
public 	school 	systems 	. 	." 	(Gov. 	Code, 	sec. 	3540), 	with 	one
of 	the 	underlying 	reasons 	being 	to 	avert 	the 	disruption 	caused
by 	strikes. 	In 	San 	Diego 	Teachers 	Association 	v. 	Superior
Court 	(1979) 	24 	Cal.3d 	1, 	11, 	the 	court 	stated:
It 	is 	argued 	that 	PERB's 	determination 	to
seek 	an 	injunction, 	as 	well 	as 	its
application 	to 	the 	court, 	would 	reflect 	only
153

a 	narrow 	concern 	for 	the 	negotiating 	process
mandated 	by 	the 	EERA 	and 	would 	ignore
strike-caused 	harm 	to 	the 	public 	and
particularly 	the 	infringement 	on 	children's
rights 	to 	an 	education. 	[paragraph]
That 	argument 	erroneously 	presupposes 	a
disparity 	between 	public 	and 	PERB
interests. 	The 	public 	interest 	is 	to
minimize 	interruptions 	of 	educational
services. 	Yet 	did 	not 	an 	identical 	concern
underlie 	enactment 	of 	EERA? 	. 	. 	PERB's
responsibility 	for 	administering 	the 	EERA
requires 	that 	it 	use 	its 	power 	to 	seek
judicial 	relief 	in ways 	that 	will 	further
the 	public 	interest 	in 	maintaining 	the
continuity 	and 	quality 	of 	educational
services.
Further, 	it 	is 	well-established 	that 	PERB 	has 	jurisdiction
to 	investigate 	and 	remedy 	violations 	of 	EERA 	even when 	such
violations 	do 	not 	fit 	neatly 	into 	the 	provisions 	of 	sections
3543.5 	and 	3543.6, 	which 	specify unlawful 	conduct 	by 	the
employer 	and 	the 	employee 	organization 	respectively.
Government 	Code 	section 	3541.3(i) 	grants 	the 	Board 	the 	power:
To 	investigate 	unfair 	practice 	charges 	or
alleged 	violations 	of 	this 	chapter, 	and 	take
such 	action 	and 	make 	such 	determinations 	in
respect 	of 	these 	charges 	or 	alleged
violations 	as 	the 	board 	deems 	necessary 	to
effectuate 	the 	policies 	of 	this 	chapter.
(Emphasis 	added.)
Case 	law 	has 	established 	that 	such 	power 	in 	the 	Board 	is 	not
limited 	to 	remedying 	allegations 	that 	a 	party 	has 	violated 	the
provisions 	of 	sections 	3543.5 	or 	3543.6, 	but 	also 	includes
alleged 	general 	violations 	of 	EERA. 	(Leek 	v. 	Washington
Unified 	School 	District 	(1981) 	124 	Cal.App.3d 	43, 	48-53, 	hg.
den.; 	Link 	v. 	Antioch 	Unified 	School 	District 	(1983)
142 	Cal.App.3d 	765, 	768-769; 	Mt. 	Diablo 	Unified 	School 	District
154

(1978) 	PERB 	Decision 	No. 	68, 	pp. 	ll-13i 	and 	see 	San 	Jose
Teachers 	Association 	v. 	Superior 	Court 	and 	Abernathy 	(1985)
38 	Cal.3d 	839, 	844, 	861-863, 	fn. 	14 	on 	p. 	861, 	vacated 	and
remanded 	on 	other 	grounds 	U.S. 	(1986) 	89 	L.Ed.2d 	599
[106 	S.Ct. 	1372] 	vacated 	on 	other 	grounds 	42 	Cal.3d 	130
(1986).) 	As 	explained 	in 	Leek 	v. 	Washington 	Unified 	School
District, 	supra, 	124 	Cal.App.3d 	at 	47-53:
[EERA] 	section 	3541.5 	provides, 	inter 	alia,
that 	"[t]he 	initial 	determination 	as 	to
whether 	the 	charges 	of 	unfair 	practices 	are
justified, 	and, 	if 	so, 	what 	remedy 	is
necessary 	to 	effectuate 	the 	purposes 	of 	this
chapter, 	shall 	be 	a 	matter 	within 	the
exclusive 	jurisdiction 	of 	the 	board."
Appellants' 	position 	is 	that 	they 	have 	not
alleged 	charges 	of 	unfair 	practices 	and
indeed, 	that 	their 	grievances 	do 	not
plausibly 	constitute 	unfair 	practices, 	and
PERB 	is 	without 	jurisdiction 	to 	hear 	and
rule 	upon 	the 	complaints. 	Both 	sides 	agree
that 	sections 	3543.5 	(listing 	activities
"unlawful" 	for 	a 	public 	school 	employer) 	and
3542.6 	(listing 	activities"unlawful" 	for 	an
employee 	organization) 	provide 	the 	basic
definitions 	for 	what 	acts 	constitute 	unfair
practices.
As 	formulated 	by 	the 	parties, 	the
preliminary 	and 	crucial 	question 	is 	whther
appellants 	have 	alleged 	plausible 	violations
of 	either 	section 	3543.5 	or 	3543.6.
Respondents 	are 	in 	the 	position 	of 	having 	to
make 	a 	somewhat 	procrustean 	ef 	rt 	to 	fit
each 	of 	appellants' 	allegations 	within 	the
parameters 	of 	unlawfulness 	as 	defined 	by
sections 	3543.5 	and 	3543.6.
We 	conclude 	the 	parties 	have 	based 	their
arguments 	upon 	the 	erroneous 	premise 	that
PERB 	is 	limited 	to 	investigating 	only
charges 	which 	are 	defined 	as 	"unlawful"
under 	sections 	3543.5 	and 	3543.6. 	The
Legislature 	has 	further 	vested 	PERB 	with
authority 	to 	investigate 	other 	alleged
155

violations 	of 	the 	EERA 	and 	to 	make
determinations 	with 	respect 	to 	such 	alleged
violations. 	Section 	3541.3, 	subdivision
(i), 	provides 	that 	the 	board 	shall 	have 	the
power 	and 	duty 	"[t]o 	investigate 	unfair
practice 	charges 	or 	alleged 	violations 	Qf
this 	chapter, 	and 	to 	take 	such 	action 	and
make 	such 	determinations 	in 	respect 	of 	such
charges 	or 	alleged 	violations 	as 	the 	board
deems 	necessary 	to 	effectuate 	the 	policies
of 	this 	chapter." 	[Emphasis 	added 	by 	the
court.] 	Subdivision 	(h) 	of 	section 	3541.3
empowers 	the 	board 	to 	hold 	hearings, 	and
subdivision 	(j) 	permits 	the 	board 	to 	enforce
its 	decision 	or 	ruling 	by 	bringing 	an 	action
in 	a 	court 	of 	competent 	jurisdiction.
Subdivision 	(n) 	empowers 	the 	board 	"[t]o
take 	such 	other 	action 	as 	the 	board 	deems
necessary 	to 	discharge 	its 	powers 	and 	duties
and 	otherwise 	to 	effectuate 	the 	purposes 	of
this 	chapter."
While 	it 	was 	appropriate 	for 	the 	court 	in
San 	Diego 	Teachers 	Assn., 	supra, 	(24 	Cal.3d
1) 	to 	focus 	upon whether 	the 	strike 	therein
could 	be 	considered 	an 	unfair 	practice, 	we
determine 	the 	appropriate 	preliminmary
question 	in 	this 	case 	is 	whether 	the 	matters
complained 	of 	could 	constitute 	either 	unfair
practice 	charges 	or 	alleged 	violations 	of
the 	EERA. 	The 	authority 	of 	the 	board 	to
deal 	with 	matters 	other 	than 	those 	which 	are
"unlawful" 	under 	sections 	3543.5 	and 	3543.6
was 	not 	disputed 	by 	the 	court 	in 	San 	Diego
Teachers 	Assn. 	The~ourt noted 	an 	argument
made 	in 	an 	amicus 	brief 	that 	a 	comparison 	of
section 	3541.5 	to 	section 	3541.3,
subdivision 	(i) 	(giving 	PERB 	power 	to 	deal
with 	"unfair 	practice 	charges 	or 	alleged
violations 	of 	this 	chapter"), 	demonstrates
that 	there 	is 	no 	exclusive 	initial
jurisdiction 	over 	EERA 	violations 	other 	than
unfair 	practices 	and 	was 	unpersuaded,
explaining 	"EERA 	specifies 	no 	'unfair
practices' 	but 	only 	acts 	that 	are 	'unlawful'
(secs. 	3543.5, 	3543.6) 	and 	thus 	does 	not
segregate 	unfair 	practices 	from 	other
violations." 	(Id. 	at 	p. 	13.)
156

. 	As 	noted, 	the 	board 	has 	the 	power 	to
make 	determinations 	with 	respect 	to 	such
charges 	or 	alleged 	violations 	as 	the 	board
deems 	necessary 	to 	effectuate 	the 	policies
of 	the 	EERA. 	(sec. 	3541.3, 	subd. 	(i).)
Under 	subdivision 	(n) 	of 	section 	3541.3 	the
board 	is 	given 	broad 	powers 	to 	effectuate
the 	purpose 	of 	the 	EERA, 	and 	subdivision 	(j)
of 	that 	same 	section 	empowers 	the 	board
"[t]o 	bring 	an 	action 	in 	court 	of 	competent
jurisdiction 	to 	enforce 	any 	of 	its 	orders,
decisions 	or 	rulings 	. 	"
(124 	Cal.App.3d 	at 	47-49, 	52-53, 	emphasis
added.)
The 	public 	school 	employer 	in 	this 	case 	alleges 	that 	the
work 	stoppages 	engaged 	in 	by 	the 	public 	school 	employees 	are
disruptive 	and 	have 	interfered with 	the 	continuity 	and 	quality
of 	educational 	services. 	The 	respondent 	teachers' 	association
does 	not 	deny 	that 	the 	work 	stoppages 	are 	disruptive. 	A basic
underlying 	purpose 	and 	policy 	of 	EERA 	is 	to 	preserve 	and 	foster
the 	continuity 	of 	the 	educational 	process. 	(San 	Diego 	Teachers
Assn. 	v. 	Superior 	Court, 	supra, 	24 	Cal.3d 	at 	11; 	El 	Rancho
Unified 	School 	District 	(1983) 	33 	Cal.3d 	946, 	957; 	Pittsburg
Unified 	School 	District 	v. 	California 	School 	Employees
Association 	(1985) 	166 	Cal.App.3d 	875, 	887-888, 	hg. 	den.; 	and
see 	Serrano 	v. 	Priest, 	supra, 	5 	Cal.3d 	584, 	604-610;
Hartzell 	v. 	Connell 	(1984) 	35 	Cal.3d 	899, 	906-909.)
Accordingly, 	we 	find 	that 	these 	public 	school 	employee 	work
stoppages 	are 	repugnant 	to 	EERA, 	constitute 	violations 	of 	EERA,
and, 	in 	this 	case, 	that 	it 	is 	just 	and 	proper 	to 	seek
injunctive 	relief 	from 	the 	courts 	to 	enjoin 	such work 	stoppages
pending 	a 	hearing 	and 	final 	decision 	by 	this 	Board. 	(Gov.
157

Code, 	secs. 	3540, 	3541.3, 	subds. 	(h), 	(1), 	(j) 	and 	(n); 	Leek 	v.
Washington 	Unified 	School 	District, 	supra, 	124 	Cal.App.3d 	at
48-53, 	hg. 	den.; 	Link v. 	Antioch 	Unified 	School 	District,
supra, 	142 	Cal.App.3d 	at 	768-769; 	Amador 	Valley 	Secondary
Educators 	Assn. 	v. 	Newlin, 	supra, 	88 	Cal.App.3d 	at 	257; 	and 	see
San 	Jose 	Teachers 	Assn. 	v. 	Superior 	Court 	and 	Abernathy, 	supra,
38 	Cal.3d 	at 	844, 	861-863, 	fn. 	14 	at 	p. 	861, 	vacated 	and
remanded 	on 	other 	grounds 	U.S. 	(1986) 	89 	L.Ed.2d 	599
[106 	s.ct. 	1372] 	vacated 	on 	other 	grounds 	42 	Cal.3d 	130 	(1986).)
In 	this 	case, 	because 	the 	Association 	is 	attempting 	to
secure 	an 	agreement 	through 	this 	conduct 	which 	violates 	EERA
generally, 	the 	injunctive 	relief 	request 	is 	enforceable 	also
through 	section 	3543.6(c) 	since 	such 	conduct 	constitutes 	a
failu~e 	to 	negotiate 	in 	good 	faith. 	(See Mt. 	Diablo 	Unified
School 	District, 	PERB 	Decision 	No. 	68, 	pp. 	11-13.)
Furthermore, 	to 	the 	extent 	that 	such work 	stoppages 	cause
the 	public 	school 	employer's 	administrators 	and 	negotiators 	to
devote 	their 	efforts 	to 	attempting 	to 	keep 	the 	schools
operational, 	thereby 	restricting 	their 	ability 	to 	prepare 	for
further 	negotiations 	aimed 	toward 	resolving 	the 	impasse, 	work
stoppages 	violate 	EERA's 	policies 	of 	promoting 	and 	improving
employer-employee 	relations 	(Gov. 	Code, 	sec. 	3540) 	and 	meeting
and 	negotiating 	in 	good 	faith 	(Gov. 	Code, 	secs. 	3540.l(h),
3543.3, 	3543.6(c).)
158

IV. 	PUBLIC 	SCHOOL 	EMPLOYEE 	STRIKES ARE 	INJURIOUS
TO 	THE 	OPERATION OF 	THE 	PUBLIC 	SCHOOLS
Having 	concluded 	that 	public 	school 	employee 	strikes
constitute 	unfair 	practices 	and 	violations 	under 	EERA, 	PERB 	has
exclusive 	initial 	jurisdiction 	to 	seek 	injunctive 	relief 	to
halt 	such 	unlawful 	activity. 	(San 	Diego 	Teachers
Association 	v. 	Superior 	Court, 	supra, 	24 	Cal.3d 	1, 	14.} 	In
seeking 	such 	reli 	, 	the 	courts 	have 	established 	a 	two-prong
inquiry. 	First, 	PERB must 	determine 	that 	it 	is 	likely 	that 	an
unfair 	practice 	has 	been 	committed. 	That 	aspect 	has 	been
demonstrated 	above. 	Second, 	PERB 	must 	show 	that 	injunctive
relief 	is 	just 	and 	proper. 	(Public 	Employment 	Relations
Board 	v. 	Modesto 	City Schools 	District, 	supra, 	136 	Cal.App.3d
881, 	896.}
The 	operation 	of 	the 	public 	schools 	is 	so 	important 	to 	the
State 	and 	to 	California's 	children 	(Cal. 	Const., 	art. 	IX;
Serrano 	v. 	supra, 	5 	Cal.3d 	584, 	604-610, 	619;
Hartzell 	v. 	Connell, 	supra, 	35 	Cal.3d 	899, 	906-909; 	In 	re
Shinn, 	supra, 	195 	Cal.App.2d 	683, 	68~-687; 	Slayton 	v, 	Pomona
Unified 	School 	District, 	supra, 	161 	Cal.App.3d 	538, 	548-549}
that 	work 	stoppages 	that 	inter 	re 	with 	or 	disrupt 	the
operation 	of 	the 	public 	schools 	so 	as 	to 	affect 	the 	continuity
and 	quality 	of 	educational 	services 	present 	just 	and 	proper
cause 	for 	their 	enjoinment.
The 	public 	school 	employee 	work 	stoppages 	in 	this 	case
clearly 	interfered with 	and 	disrupted 	the 	continuity 	and
159

quality 	of 	the 	educational 	services 	to 	children 	in 	Compton
Unified 	School 	District. 	There 	is, 	therefore, 	just 	and 	proper
cause 	for 	their 	enjoinment.
CONCLUSION
We 	conclude 	that 	these work 	stoppages 	violate 	the 	EERA 	and
are, 	therefore, 	unlawful 	under 	EERA. 31 In 	this 	case, 	the
allegations 	support 	at 	least 	four 	bases 	for 	concluding 	that 	it
is 	likely 	that 	the 	work 	stoppage 	constitutes 	an 	unfair
practice: 	(l} 	by 	engaging 	in 	the 	work 	stoppage, 	the
Association 	has 	used 	the 	disruption 	and 	interference 	in 	school
operations 	caused 	by 	the 	work 	stoppage 	as 	a 	coercive
negotiating 	tactic 	to 	attempt 	to 	obtain 	employer 	capitulation
to 	the 	Association's 	bargaining 	demands; 	(2) 	it 	has
unilaterally 	changed 	the 	terms 	and 	conditions 	of 	employment 	of
the 	bargaining 	unit 	members 	who 	participated 	in 	the 	strike 	and
therefore 	allegedly 	has 	failed 	and 	refused 	to 	negotiate 	in 	good
faith; 	(3). it 	has 	attempted 	to 	acquire 	agreement 	through 	the
use 	of 	unlawful 	consideration, 	by 	engaging 	in 	conduct 	that 	is
contrary 	to 	public 	policy 	and, 	therefore, 	allegedly 	has 	failed
or 	refused 	to 	negotiate 	in 	good 	faith; 	and 	(4) 	the 	disruption
and 	interference 	caused 	by 	the 	work 	stoppage 	violated 	one 	of
31As 	noted 	earlier, 	in 	reaching 	this 	conclusion we
overrule 	Modesto 	City 	Schools, 	supra, 	PERB 	Decision 	No. 	291 	and
San 	Ramon 	Valley Unified 	School 	District, 	supra, 	PERB 	Order
No. 	IR-46, 	insofar 	as 	they 	are 	inconsistent with 	the
conclusions 	herein.
160

the 	underlying 	policies 	of 	EERA, 	which 	is 	to 	maintain 	the
continuity 	and 	quality 	of 	educational 	services, 	and, 	since 	in
this 	case 	such 	conduct 	is 	engaged 	in 	to 	secure 	bargaining
concessions, 	it 	also 	constitutes 	a 	failure 	and 	refusal 	to
negotiate 	in 	good 	faith. 	Further, 	we 	find 	on 	this 	record 	that
the 	disruption 	and 	interference 	to 	the 	educational 	services
constitutes 	just 	and 	proper 	cause 	to 	seek 	injunctive 	relief.
ORDER
We 	therefore 	direct 	the 	General 	Counsel 	to 	amend 	the
complaint 	issued 	against 	Respondent 	Association 	to 	include 	the
additional 	grounds 	set 	forth 	above, 	and 	to 	petition 	the
superior 	court 	for 	injunctive 	relief 	against 	further 	work
stoppages 	by 	the 	Respondent 	Association.
Chairperson 	Hesse's 	concurrence 	begins 	on 	page 	162.
Member 	Craib's 	dissent 	begins 	on 	page 	171.
161

Hesse, 	concurring: 	This 	matter 	came 	before 	the 	Board
because 	of 	a 	request 	for 	injunctive 	relief 	filed 	by 	the 	Compton
Unified 	School 	District 	{District). 	This 	request, 	attached 	to
an 	unfair 	practice 	charge, 	comes 	as 	the 	result 	of 	a 	strike 	by
the 	Compton 	Education 	Association 	{CEA 	or 	Association). 	The
strike 	included 	a 	number 	of 	work 	stoppages, 	lasting 	from 	one 	to
five 	days 	at 	a 	time. 1 These 	stoppages 	began 	in 	early
November 	1986 	and 	have 	continued 	through 	March 	1987. 	CEA 	has
given 	no 	indication 	that 	it 	will 	not 	call 	for 	any 	more 	work
stoppages, 	and 	there 	is 	reasonable 	cause 	to 	believe 	that 	the
strike 	will 	continue 	while 	the 	parties 	are 	without 	an 	agreement.
Teachers 	have 	engaged 	in 	a 	work 	stoppage 	on 	16 	separate
days. 	The 	District 	has 	been 	unable 	to 	replace 	the 	strikers 	to
any 	significant 	degree:L
~
Student 	attendance 	on 	strike 	days
lThe 	intermittent 	nature 	of 	the 	strike 	up 	to 	this 	point
has 	presumably 	been 	the 	tactic 	used 	because 	it 	permits 	the
emloyees 	to 	draw 	enough 	salary 	to be 	able 	to 	meet 	financial
obligations 	while 	still 	disrupting 	services. 	Presumably,
employees 	also 	receive 	full 	benefits 	even 	during 	the 	work
stoppages. 	This 	intermittent 	technique 	is 	disfavored 	in 	the
private 	sector 	because 	it 	results 	in 	one 	side, 	management,
suffering 	greatly 	while 	the 	employees 	are 	relatively 	unharmed.
{First 	National 	Bank 	of 	Omaha 	{1968) 	171 	NLRB 	1145, 	en'f 	{8th
Cir. 	1969) 	413 	F.2d 	921.) 	The 	discussion 	in 	this 	opinion,
however, 	is 	premised 	on 	the 	harm 	caused 	by 	the 	strike,
regardless 	of 	whether 	it 	is 	intermittent 	in 	nature 	or 	not.
Member 	Craib's 	reliance 	on 	NLRB 	v. 	Insurance 	Agents•
International 	Union 	(1960) 	361 	US 	477 	fails 	to 	recognize 	the
difference 	between 	public 	and 	private 	sector 	strikes.
2The 	average 	number 	of 	strikers 	on 	any 	given 	day 	was
898. 	The 	average 	number 	of 	substitutes 	employed 	to 	replace 	the
strikers 	was 	43.
162

was 	down 	approximately 	70% 	from 	normal 	pre-strike 	attendance.
Equally 	significant, 	however, 	is 	tbe 	fact 	tbat 	attendance 	on
days 	wben 	no 	work 	stoppage 	was 	in 	progress 	also 	was 	below 	tbe
normal 	attendance 	rate 	tbat 	predated 	tbe 	strike 	activity. 	In
otber 	words, 	once 	tbe 	teachers 	began 	tbeir 	strike, 	attendance
was 	significantly 	affected, 	even 	on 	days 	wben 	tbe 	teachers 	were
in 	tbe 	classrooms. 	A 	reasonable 	assumption 	is 	tbat 	tbe
uncertain 	nature 	of 	tbe 	teachers' 	attendance 	directly 	caused
tbe 	drop 	in 	student 	attendance 	after 	November 	10, 	1986.
If 	tbe 	goal 	of 	a 	work 	stoppage 	is 	to 	disrupt 	tbe
educational 	process, 	one 	can 	only 	conclude 	tbat 	tbe 	CEA 	strike
has 	been 	successful. 	For 	tbe 	period 	November-January, 	nearly
40% 	of 	tbe 	students 	received 	no 	education 	whatsoever 	because
tbey 	did 	not 	attend 	school. 	The 	ones 	wbo 	did 	attend 	classes 	on
tbe 	strike 	days 	were 	largely 	"wareboused. 11 Adequate 	numbers 	of
substitutes 	were 	not 	available 	to 	teacb 	even 	balf 	of 	tbe
students. 	Where 	instruction 	did 	take 	place, 	it 	could 	not 	meet
even 	minimal 	levels 	because 	so 	few 	teachers 	bad 	responsibility
for 	so 	many 	students. 	Due 	to 	tbe 	intermittent 	nature 	of 	tbe
strike, 	continuity 	of 	instruction 	eitber 	by 	substitutes 	or 	by
regular 	teachers 	was 	compromised 	at 	best 	and 	impossible 	at
worst.
In 	addition 	to 	the 	overt 	disruption 	of 	tbe 	students'
instructional 	program, 	tbe 	strike 	bas 	bad 	an 	indirect 	impact 	on
tbe 	educational 	program 	in, 	for 	example; 	tbe 	cancellation 	of
teacher 	training 	programs; 	curriculum 	monitoring 	and
163

development; 	and 	educational, 	physical, 	and 	psychological
testing. 	The 	total 	number 	of 	training 	and 	supplemental
programs 	that 	have 	been 	cancelled 	is 	listed 	in 	the 	declarations
of 	District 	personnel.
CEA 	admits 	in 	its 	papers 	that 	the 	strike 	has 	been
disruptive, 	and 	makes 	the 	argument 	that 	strikes, 	by 	their 	very
nature, 	are 	meant 	to 	be 	disruptive. 	Additionally, 	it 	claims
that 	a 	number 	of 	the 	individual 	work 	stoppages 	were 	provoked 	by
unfair 	practices 	committed 	by 	the 	District. 3
This 	Board 	is 	now 	presented 	with 	the 	issue 	of 	whether
injunctive 	relief 	is 	proper 	in 	this 	case, 	during 	the 	pendency
of 	the 	unfair 	practice 	charge 	proceedings. 	To 	reach 	that
issue, 	we 	must 	rule 	on: 	(1) 	whether 	PERB 	has 	jurisdiction 	over
this 	dispute, 	as 	determined 	by 	whether 	the 	strike 	is 	arguably
unlawful 	under 	the 	Educational 	Employment 	Relations 	Act 	(EERA
or 	Act); 	(2) 	if 	PERB 	does 	have 	jurisdiction, 	whether 	the
actions 	of 	CEA 	constitute 	a 	violation 	of 	EERA 	or 	an 	unlawful
practice 	under 	the 	Act; 	and 	(3) 	whether 	the 	standards 	for
seeking 	injunctive 	relief 	under 	PERB 	v. 	Modesto 	City 	Schools
3As 	set 	forth 	in 	Member 	Porter's 	op1n1on, 	I 	concur 	that
the 	Board's 	earlier 	interpretation 	of 	section 	3543 	is 	incorrect
and 	I 	join 	Member 	Porter 	in 	overruling 	Modesto 	City 	Schools
(1983) 	PERB 	Decision 	No. 	291 	on 	that 	point~ 	But 	just 	as 	EERA
confers 	no 	statutory 	right 	to 	strike; 	neither 	does 	it 	expressly
by 	law 	prohibit 	strikes. 	The 	sole 	issue 	before 	the 	Board 	in
any 	strike 	case 	is 	whether 	the 	facts 	of 	that 	strike 	can 	lead 	to
a 	finding 	that 	the 	strike 	is 	an 	unlawful 	activity 	under 	EERA.
164

District 	(1982) 	136 	Cal.App.3d 	881 	are 	met. 4
I. 	PERB 	has 	Jurisdiction 	Over 	this 	Dispute
Under 	San 	Diego 	Teachers 	Association 	v. 	Superior 	Court
(1979) 	24 	Cal.3d 	1, 	11, 	PERB has 	initial 	exclusive 	jurisdiction
to 	determine 	whether 	parties 	have 	engaged 	in 	conduct 	that 	is 	an
unlawful 	practice 	under 	EERA. 	(See 	El 	Rancho 	Unified 	School
District 	v. 	National 	Education 	Assn. 	(1983) 	33 	Cal.3d 	946,
953-956; 	Sears 	Roebuck 	& Co. 	v. 	Carpenters 	(1959) 	436 	US 	180,
186-188; 	San 	Diego 	Building 	Trades 	Council 	v. 	Garmon 	(1959) 	359
US 	236, 	244-247; 	3 	L.Ed.2d 	775, 	782-784; 	79 	S.Ct. 	773.)
Indeed, 	both 	CEA 	and 	the 	District 	concede 	PERB's 	jurisdiction
in 	this 	case. 	(See 	District's 	Request 	for 	Injunctive 	Relief 	at
p. 	22; 	CEA's 	Opposition 	to 	Request 	for 	Injunctive 	Relief 	at 	p.
37:) 	Typical 	of 	PERB's 	exercise 	of 	jurisdiction 	over 	strikes
are 	cases 	where 	the 	Board 	has 	found 	unlawful 	an 	economic 	strike
that 	occurred 	prior 	to 	exhaustion 	of 	impasse 	procedures 	(Fresno
Unified 	School 	District 	(1982) 	PERB 	Decision 	No. 	208;
Sacramento 	City 	Unified 	School 	District 	(1987) 	PERB 	Order 	No.
IR-49) 	but 	not 	a 	strike 	in 	response 	to 	unfair 	practices
(Modesto 	City 	Schools 	(1983) 	PERB 	Decision 	No. 	291). 	Although
PERB 	has 	had 	no 	prior 	opportunity 	to 	rule 	on 	a 	post-impasse
economic 	strike, 	that 	lack 	of 	opportunity 	does 	not 	mean 	that
4The 	dissent's 	accusation 	that 	this 	Board 	has 	not 	given
equal 	treatment 	to 	employee 	associations 	is 	curious 	in 	light 	of
our 	decisions 	to 	seek 	injunctive 	relief 	in 	Selma 	Unified 	School
District 	S-CE-773 	and 	Buckeye 	Elementary 	School 	District
S-CE-863.
165

the 	teachers' 	conduct 	is 	neither 	"arguably protected 	or
arguably 	prohibited," 	the 	standard 	under 	which 	initial 	exclusive
jurisdiction 	is 	conferred. 5 Indeed, 	PERB's 	willingness 	to
address 	the 	issue 	of 	strikes, 	coupled 	with 	EERA's 	statutory
scheme 	developed 	to 	prevent 	labor 	unrest, 	lead 	inexorably 	to
the 	conclusion 	that 	PERB 	has 	initial 	exclusive 	jurisdiction
over 	this 	dispute.
II. 	The 	Strike 	is 	Arguably 	Unlawful 	Under 	EERA6
As 	noted 	by Member 	Porter, 	this 	Board 	has 	wide 	discretion
in 	determining 	violations 	of 	EERA. 	(San 	Diego 	Teachers 	Assn. 	v.
Superior 	Court, 	supra; 	Leek 	v. 	Washington 	Unified 	School
District 	(1981) 	124 	Cal.App.3d 	43, 	47-49.) 	As 	stated 	by 	the
court 	in 	Leek 	(but 	not, 	apparently, 	agreed 	to by 	the 	dissent),
"The 	authority 	of 	the 	board 	to 	deal 	with 	matters 	other 	than
those 	which 	are 	'unlawful' 	under 	sections 	3543.5 	and 	3543.6 	was
not 	disputed 	by 	the 	[Supreme 	Court.]" 	(Id. 	at 	49.)
5see 	San 	Diego 	Teachers 	Assn., 	supra, 	citing 	San 	Die~o
Building 	Trades 	Council, 	supra. 	(See 	also, 	El 	Rancho 	Unified
School 	District, 	supra.)
61 	would 	distinguish 	the 	instant 	situation 	from 	County
Sanitation 	District 	No. 	2 	of 	Los 	Angeles 	County 	v. 	Los 	Angeles
County 	Employees' 	Assn., 	Local 	660, 	SEID, 	AFL-CIO 	(1985) 	38
Cal.3d 	564, 	because 	that 	tort 	case 	involved 	the
Meyers-Milias-Brown 	Act, 	and 	no 	public 	agency 	oversees 	that
statute. 	The 	Supreme 	Court 	explicitly 	stated 	that 	it 	did 	not
rule 	on 	statutes 	governing 	other 	public 	employees. 	{County
Sanitation, 	supra, 	fn. 	14 	at 	p. 	10, 	and 	fn. 	17 	at 	p. 	13.)
Additionally, 	that 	case 	addressed 	the 	common-law 	prohibition
against 	strikes 	and 	this 	dispute 	addresses 	only 	the 	alleged
statutory 	violation 	of 	EERA. 	Thus, 	County 	Sanitation 	would 	be
instructive 	to 	a 	court 	of 	law 	only 	where 	it 	heard 	a 	dispute
because 	an 	administrative 	agency 	had 	no 	jurisdiction 	over 	that
matter. 	Such 	is 	not 	the 	case 	here.
166

A seminal 	question, 	therefore, 	is 	whether 	the 	tactic 	of
causing 	a 	total 	breakdown 	in 	education, 	and 	the 	lack 	of 	even
basic 	instruction 	in 	Compton, 	so 	vividly 	portrayed 	in 	the
District's 	moving 	papers, 	can 	constitute 	a 	violation 	of 	EERA
and, 	if 	so, 	what 	is 	the 	appropriate 	way 	for 	the 	Board 	to
adjudicate 	such 	an 	alleged 	violation.
I 	find 	that 	the 	strike 	is 	such 	a 	violation 	of 	the 	Act.
This 	conclusion 	is 	reached 	because 	the 	strike 	was 	employed 	to
cause 	a 	total 	breakdown 	of 	two 	discrete 	activities 	that 	are
guaranteed 	by 	statute 	and 	case 	law: 	(1) 	basic 	education 	for
students 	and 	(2) 	negotiations 	free 	from 	coercive 	tactics 	that
hold 	hostage 	that 	education. 	The 	former 	activity 	is 	guaranteed
by 	the 	California 	Constitution, 	by 	numerous 	statutes, 	and 	by
our 	Supreme 	Court 	in 	San 	Diego 	Teachers 	Assn~, 	supra, 	when 	it
stated 	that 	both 	the 	public 	and 	PERB have 	an 	interest 	in
minimizing 	interruptions 	of 	educational 	services. 	(San 	Diego
Teachers 	Assn., 	supra, 	at 	11.) 	Member 	Porter 	has 	written 	at
length 	on 	the 	constitutional 	and 	statutory 	guarantees 	to 	an
education, 	and 	I 	concur 	that 	PERB 	must 	do 	what 	it 	can, 	under
its 	jurisdiction, 	to 	fulfill 	those 	guarantees.
The 	latter 	activity, 	protecting 	parties 	from 	highly
coercive 	tactics 	designed 	to 	force 	concessions 	at 	the
bargaining 	table 	is 	guaranteed by 	section 	3543.6(c), 	the
requirement 	that 	the 	employee 	association 	negotiate 	in 	good
faith. 	Here, 	the 	total 	inability 	of 	the 	District 	to 	provide
even 	basic, 	minimum-day 	education 	by 	using 	substitute 	teachers
167

is, 	surely, 	an 	example 	of 	the 	"larger 	harm" 	stemming 	from 	a
teachers' 	strike 	that 	the 	Supreme 	Court 	expressly 	permits 	PERB
to 	address. 	(El 	Rancho 	Unified 	School 	District, 	supra, 	at
957.} 	Such 	harm 	is 	incompatible 	with 	the 	desire 	for 	good
employer-employee 	relations 	that 	led 	to 	passage 	of 	the 	Act.
Thus, 	this 	strike 	is 	an 	unlawful 	activity 	as 	a 	refusal 	to
bargain 	in 	good 	faith, 	a 	violation 	of 	section 	3543.6(c). 	The
dissent 1 s 	view 	that 	this 	opinion 	condemns 	all 	strikes 	as 	per 	se
refusals 	to 	bargain 	is 	simply 	wrong.
In 	addition 	to 	the 	outright 	violation 	of 	section 	3543.6(c),
the 	strike 	arguably 	has 	resulted 	in 	a 	violation 	of 	section
3540, 	wherein 	EERA 	provides 	for 	the 	improvement 	of
employer-employee 	relations. 	Taking heed 	from 	how 	violations
of 	section 	3544.9 	are 	actionable 	through 	section 	3543.6(b), 	I
concur 	with 	Member 	Porter 	that 	violations 	of 	3540 	are
redressable 	through 	section 	3543.6(c). 7 Use 	of 	the 	unfair
practice 	procedures 	allows 	a 	complaint 	to 	be 	issued 	so 	that 	the
7That 	PERB 	has 	the 	authority 	to 	redress 	violations 	of
EERA 	beyond 	those 	specifically addressed 	in 	sections 	3543.5 	and
3543.6 	is 	evident 	from 	its 	actions 	in 	cases 	alleging 	a 	breach
of 	the 	duty 	of 	fair 	representation, 	wherein 	alleged 	violations
of 	section 	3544.9 	are 	adjudicated 	by 	PERB 	procedurally 	through
section 	3543.6(b). 	(See 	Rocklin 	Teachers 	Professional
Association 	(1980) 	PERB 	Decision 	No. 	124.) 	Allegations 	that
parties 	have 	failed 	to 	comply 	with 	section 	3547, 	public 	notice
provisions, 	are 	also 	adjudicated 	by 	the 	Board. 	(Los 	Angeles
Unified 	School 	District 	(1984) 	PERB 	Decision 	No. 	397.) 	Thus,
where 	allegations 	of 	statutory 	violations 	of 	the 	Act 	are 	made,
and 	especially 	where 	those 	violations 	of 	the 	Act 	result 	in
"strike-caused harm 	to 	the 	public 	and 	particularly 	the
infringement 	on 	children's 	right 	to 	an 	education" 	(San 	Diego
Teachers 	Association, 	supra, 	at 	11), 	PERB 	can 	and 	must 	take
action 	to prevent 	such 	violations.
168

due 	process 	rights 	of 	both 	labor 	and 	management 	are 	safeguarded.
For 	the 	reasons 	above, 	I 	concur 	with 	Member 	Porter 	that
this 	strike 	must 	be 	redressed 	by 	the 	Board 	as 	a 	potential
violation 	of 	the 	Act, 	and 	injunctive 	relief 	should 	be 	sought 	if
the 	standards 	set 	forth 	in 	PERB 	v~ 	Modesto 	City 	Schools, 	supra,
are 	met. 8
III. 	Injunctive 	Relief 	is 	Appropriate
The 	Court 	of 	Appeal 	in 	PERB 	v. 	Modesto 	City 	Schools, 	supra,
delineated 	a 	two-part 	test 	under 	which 	PERB 	may 	seek 	an
injunction 	during 	the 	pendency 	of 	an 	unfair 	practice
proceeding: 	(1) 	where 	it 	is 	probable 	that 	a 	violation 	of 	the
Act 	bas 	been 	committed: 	and 	(2) 	where 	injunctive 	relief 	is 	just
and 	proper. 	In 	light 	of 	the 	above 	discussion 	concerning 	the
tactic 	used 	by 	the 	striking 	employees 	to 	cause 	a 	total
breakdown 	of 	the 	educational 	process~ 	I 	find 	it 	probable 	that 	a
violation 	of 	the 	Act 	bas 	been 	committed:
8Although 	the 	Association 	argues 	that 	some 	of 	the 	one-day
work 	stoppages 	were 	provoked 	by 	employer 	conduct, 	the 	activities
after 	unsuccessful 	mediation 	by 	a 	PERB 	administrative 	law 	judge
can 	reasonably be 	seen 	to 	be 	strictly 	economic 	tactics. 	The
parties 	appear 	to 	have 	reached 	"final" 	impasse 	in 	February
1987, 	after 	unsuccessful 	negotiation/mediation 	that 	followed
release 	of 	the 	factfinders 	report: 	(Gov~ 	Code 	secs. 	3548.2,
3548.3, 	3548.4, 	Modesto 	City 	Schools~ 	supra, 	at 	32.) 	The
employees 	may have 	struck 	prior 	to 	that 	time 	in 	response 	to 	the
employer's 	alleged 	unfair 	practices; 	but 	their 	subsequent
return 	to 	work 	moots 	the 	issue. 	Based 	on 	the 	declarations
before 	us, 	the 	strike 	subsequent 	to 	final 	impasse 	was 	not
provoked. 	We 	leave 	for 	the 	hearing 	on 	the 	merits 	the 	full
litigation 	on 	any 	defense 	to 	the 	District's 	charges 	of 	unfair
practices.
169

In 	addition, 	injunctive 	relief 	is 	just 	and 	proper 	because
any 	remedy 	fashioned 	by 	PERB 	could 	not 	be 	considered 	adequate
at 	law. 	Having 	lost 	at 	a 	minimum 	16 	instructional 	days, 	the
students 	of 	the 	Compton 	school 	system, 	particularly 	the 	number
of 	students 	who 	are 	educationally 	disadvantaged, 	are 	faced 	with
an 	unknown 	number 	of 	additional 	days 	of 	educational 	idleness.
The 	Association's 	suggestion 	that 	such 	lost 	days 	can 	be 	"made
up" 	is 	a 	tacit 	admission 	that 	the 	school 	time 	already 	lost 	is
of 	great 	importance 	to 	the 	students' 	education. 	Extending 	the
school 	year, 	however, 	does 	not 	cure 	the 	lack 	of 	continuity 	in
the 	program 	now. 	The 	inherent 	interruption 	of 	continuity 	and
quality 	that 	occurred 	because 	of 	this 	strike 	needs 	to 	be
redressed 	at 	this 	instant 	in 	order 	to 	meet 	the 	goals 	of 	the
Legislature 	in 	reforming 	the 	state's 	schools. 	(SB 	813; 	Sta ts~
1983, 	Ch. 	498) 	Furthermore, 	a 	remedy 	of 	a 	cease 	and 	desist
order 	that 	comes 	one, 	two, 	or, 	three 	years 	after 	a 	strike
cannot 	make 	up 	for 	the 	disruption 	and 	lost 	educational
opportunities 	suffered 	by 	the 	students 	at 	the 	time 	of 	the
strike.
For 	the 	reasons 	above, 	I 	concur 	that 	the 	General 	Counsel 	be
instructed 	to 	seek 	an 	injunction 	that 	would 	halt 	the 	work
stoppage.
170

Craib, 	Member, 	dissenting: 	I 	must 	respectfully 	dissent 	from
my 	colleagues' 	transparent 	attempt 	to 	distort 	the 	law 	to 	mesh
with 	their 	personal 	abhorrence 	of 	teacher 	strikes. 	While 	I,
too, 	have 	serious 	concerns 	about 	the 	effects 	of 	teacher 	strikes
upon 	the 	educational 	process, 	existing 	law 	simply 	does 	not 	make
such 	strikes 	unlawful. 	I 	submit 	that 	if 	a 	change 	in 	the 	law 	is
warranted, 	it 	is 	properly 	the 	role 	of 	the 	Legislature 	or 	the
courts 	to 	change 	it, 	not 	this 	Board.
Prior 	to 	the 	California 	Supreme 	Court's 	decision 	in 	County
Sanitation 	District 	No. 	2 	of 	Los 	Angeles 	County 	v. 	Los 	Angeles
County Employees 	Association, 	Local 	660, 	SEIU, 	AFL-CIO 	(1985) 	38
Cal.3d 	564 	(County 	Sanitation), 	public 	employee 	strikes 	were
generally 	considered 	unlawful 	absent 	statutory 	authorization.
In 	County 	Sanitation, 	the 	Supreme 	Court 	held 	that 	public 	employee
strikes 	are 	no 	longer 	unlawful 	under 	common 	law, 	with 	the
exception 	of 	those 	strikes 	which 	constitute 	a 	substantial 	and
imminent 	threat 	to 	public 	health 	or 	safety. 	Consequently, 	where
there 	is 	no 	substantial 	and 	imminent 	threat 	to 	public 	health 	and
safety, 	public 	employee 	strikes 	are 	now 	lawful 	in 	California
absent 	statutory 	prohibition. 	The 	relevant 	statute 	here 	is, 	of
course, 	EERA, 	so 	we 	must 	examine 	its 	language 	to 	determine 	the
legality 	of 	the 	strike 	at 	issue.
First, 	I 	can 	say 	categorically 	that 	there 	is 	no 	provision 	of
EERA which 	expressly 	or 	impliedly 	prohibits 	all 	strikes. 1
lThe 	Board 	has 	found 	that 	EERA's 	mandatory 	impasse
resolution 	procedures 	imply 	a 	ban 	on 	economic 	strikes 	prior 	to
171

Member 	Porter's 	reliance 	on 	EERA 	section 	3549 	is 	without
foundation. 	In 	San 	Diego 	Teachers 	Association 	v. 	Superior 	Court
(1979) 	24 	Cal.3d 	1, 	13, 	the 	Supreme 	Court 	rejected 	the 	notion
that 	this 	provision 	can 	be 	read 	as 	a 	blanket 	prohibition 	on
strikes. 	In 	County 	Sanitation, 	the 	Court 	affirmed 	that
interpretation 	by 	similarly 	construing 	an 	identical 	provision 	of
the 	Meyers-Milias-Brown Act. 	Whether 	Member 	Porter 	likes 	it 	or
not, 	this 	issue 	has 	been 	definitively 	resolved. 2 Nor 	is 	there
any 	provision 	in 	EERA which 	expressly 	or 	impliedly 	authorizes
the 	Board 	to 	enjoin 	strikes 	solely 	on 	the 	basis 	that 	disruption
of 	the 	educational 	process 	has 	resulted. 	That 	theory 	of
illegality, 	as 	well 	as 	the 	grossly 	exaggerated 	importance
attached 	by Member 	Porter 	to 	the 	absence 	of 	the 	"16 	magic 	words"
will 	be 	dealt 	with 	in 	greater 	detail 	later 	in 	this 	opinion.
However, 	suffice 	it 	to 	say 	at 	this 	point 	that, 	while 	the 	absence
of 	the 	"16 	magic 	words" 	is 	an 	argument 	for 	finding 	strikes
unprotected 	under 	EERA, 	it 	cannot 	reasonably be 	construed 	as 	a
prohibition 	on 	strikes.
the 	exhaustion 	of 	the 	procedures. 	See, 	e.g., 	Rio 	Hondo
Community College 	District 	(1983) 	PERB 	Decision 	No. 	292. 	In 	the
instant 	case, 	the 	impasse 	procedures 	have 	been 	exhausted.
2whether Member 	Porter 	agrees 	with 	the 	Supreme 	Court 	or
not, 	he 	cannot 	simply 	ignore 	the 	precedential 	force 	of 	its
decisions. 	While 	his 	opinion 	is 	suitable 	as 	a 	brief 	before 	the
Court 	seeking 	reversal 	of 	its 	decisions 	or 	as 	a 	plea 	to 	the
Legislature 	for 	a 	statutory 	prohibition 	on 	teacher 	strikes, 	in
light 	of 	existing 	law 	it 	is 	conspicuously 	out 	of 	place 	as 	a
decision 	of 	PERE.
172

As 	Member 	Porter 	points 	out 	at 	page 	95 	of 	his 	opinion, 	this
Board 	has 	held 	that, 	except 	as 	limited 	by other 	provisions 	of
EERA, 	section 	3543 	authorizes 	strikes. 	Modesto 	City 	Schools
(1983) 	PERB 	Decision 	No. 	291. 	In 	comparing 	section 	3543 	to
section 	7 	of 	the 	NLRA 	and 	section 	923 	of 	California 	Labor 	Code,
the 	Board 	concluded 	that 	the 	EERA uses 	clearer 	and 	more
universally 	understood 	language 	to 	confer 	the 	right 	to 	engage 	in
collective 	activities 	traditionally 	related 	to 	the 	bargaining
process.
While 	acknowledging 	that 	section 	3543 	is 	susceptible 	to
differing 	interpretations, 	I 	find 	the 	Modesto 	interpretation 	the
most 	persuasive. 	Section 	3543 	expressly 	grants 	to 	employees 	the
right 	to 	"form, 	join, 	and 	participate 	in 	the 	activities 	of
employee 	organizations 	of 	their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of 	employer-employee 	relations."
Strikes 	for 	the 	purpose 	of 	exerting 	pressure 	at 	the 	bargaining
table 	are 	classic 	representational 	activities. 	Member 	Porter's
musing 	that 	this 	same 	language 	did 	not 	confer 	the 	right 	to
strike 	when 	contained 	in 	EERA's 	predecessor, 	the 	Winton Act,
ignores 	the 	fundamental 	difference 	between 	the 	two 	acts, 	namely,
that 	the 	Winton Act 	did 	not 	require 	public 	school 	employers 	to
collectively 	bargain with 	employee 	organizations~ 	Therefore,
"representation" 	under 	the 	Winton Act 	had 	a 	fundamentally
different 	meaning. 3
3The 	primacy of 	collective 	bargaining 	rights 	in 	any
statutory 	analysis 	of 	the 	right 	to 	strike 	is 	illustrated 	by 	a
173

major 	pre-County 	Sanitation California 	Supreme 	Court 	case, 	Los
Angeles 	Metropolitan 	Transit 	Authority v. 	Brotherhood 	of
Railroad 	Trainmen 	(1960) 	54 	Cal.2d 	684. 	There, 	the 	Court 	relied
on 	both 	the 	grant 	of 	collective 	bargaining 	rights 	and 	on 	the 	"16
magic 	words" 	noted 	by Member 	Porter. 	The 	Court 	noted 	that,
under 	the 	facts 	of 	the 	case, 	it 	did 	not 	need 	to 	consider 	if 	the
right 	to 	bargain 	collectively 	itself 	gave 	the 	right 	to 	strike,
but 	cited 	several 	cases 	from 	other 	jurisdictions 	where 	it 	was 	so
held.
While 	I 	agree 	with 	the 	Board's 	Modesto 	decision 	that 	some
strikes 	are 	protected 	under 	EERA, 	I 	would 	find 	the 	strikes 	thus
far 	occurring 	in 	the 	Compton 	Unified 	School 	District, 	due 	to
their 	intermittent 	nature, 	to 	be 	unprotected. 4 This 	is
consistent 	with 	the 	view 	of 	the 	NLRB 	and 	the 	federal 	courts.
(See 	generally Morris, 	The 	Developing 	Labor 	Law, 	2d 	Ed., 	pp.
1016-1018. 	And 	see 	NLRB 	v. 	Insurance 	Agents' 	International
Union 	(1960) 	361 	U.S. 	477 	[45 	LRRM 2704] 	(Insurance 	Agents);
NLRB 	v. 	Fansteel 	Metallurgical 	Corp. 	(1939) 	306 	U.S. 	240 	[4 	LRRM
515]; .United Auto 	Workers 	v. 	Wisc. 	Employment 	Relations 	Bd.
(1949) 	336 	U.S. 	245 	[23 	LRRM 	2361]; 	Confectionery 	and 	Tobacco
Drivers 	v. 	(2d 	Cir. 	1963) 	312 	F.2d 	108 	[52 	LRRM 	2163];
Valley City 	Furniture 	Co., 	supra; 	NLRB 	v. 	Blades 	Mfg. 	Corp. 	(8th
Cir. 	1965) 	344 	F.2d 	998 	[59 	LRRM 	2210].)
4Though 	I 	would 	find 	that 	at 	least 	some 	of 	the 	one-day
strikes 	were 	arguably 	provoked 	by District 	unfair 	practices, 	my
view 	of 	intermittent 	str~kes 	as 	unprotected 	does 	not 	vary
depending 	on 	whether 	or 	not 	the 	strikes 	are 	provoked. 	While 	the
NLRB 	once 	viewed 	all 	intermittent 	strikes 	as 	per 	se 	unprotected
(see 	Valley 	City 	Furniture 	Co. 	(1954) 	110 	NLRB 	1589 	[35 	LRRM
1265] 	enf'd 	(5th 	Cir. 	1956) 	230 	F.2d 	947 	[37 	LRRM 	2740]), 	the
NLRB 	now 	looks 	to 	the 	totality 	of 	the 	circumstances 	(see 	GAIU
Local 	13-B, 	Graphic 	Arts 	(1980) 	252 	NLRB 	936). 	Since 	the
distinctions 	between 	intermittent 	and 	full 	strikes 	which 	lead 	me
to 	find 	the 	former 	unprotected 	do 	not 	vary depending 	on
174

the 	existence 	of 	provocation, 	I 	find 	the Valley 	City 	Furniture
approach 	the 	more 	instructive.
The 	rationale 	behind 	finding 	partial 	or 	intermittent 	strikes
unprotected 	stems 	from 	the 	view 	that 	such 	tactics 	interfere with
the 	employer's 	business 	without 	placing 	a 	commensurate 	economic
burden 	on 	the 	employees. 	In 	other words, 	such 	tactics, 	in
contrast 	to 	a 	full 	strike, 	do 	not 	constitute 	the 	complete
withholding 	of 	labor 	but, 	instead, 	are 	tantamount 	to 	working 	and
striking 	at 	the 	same 	time. 	They 	are 	thus 	distinguishable 	from
the 	classic 	strike 	form, 	the 	full 	strike, 	and 	thus 	need 	not 	be
given 	protected 	status 	even where 	the 	right 	to 	strike 	is,
generally 	speaking, 	protected. 	However, 	I 	must 	emphasize 	the
fact 	that 	a 	specific 	form 	of 	strike 	activity 	is 	unprotected 	does
not 	mean 	that 	it 	is 	unlawful.
First, 	I 	note 	that 	the 	instant 	case 	involves 	an 	intermittent
strike 	and 	not 	a 	partial 	strike, 	sit-down 	strike 	or 	slowdown.
While 	in 	the 	private 	sector 	these 	tactics 	are 	also 	generally
regarded 	as 	unprotected, 	the 	intermittent 	strike 	is 	the 	form
which 	most 	closely 	resembles 	the 	protected 	full 	strike. 	Any
argument 	that 	such 	tactics 	are 	unlawful 	necessarily weakens 	as
the 	particular 	strike 	form 	approaches 	the 	form 	of 	the 	full
strike. 	As 	intermittent 	strikes 	do 	constitute 	the 	total
withholding 	of 	labor, 	albeit 	for 	one 	or 	a 	few 	days 	at 	a 	time, 	I
find 	the 	distinctions 	from 	full 	strikes 	to 	be 	insufficient 	to
warrant 	prohibiting 	intermittent 	strikes. 	However, 	the
175

strike's 	traditional 	role 	as 	a 	weapon 	of 	all-out 	war 	brings 	with
it 	the 	notion.of 	economic 	sacrifice, 	i.e., 	"biting 	the 	bullet."
Since 	the 	intermittent 	strike 	does 	not 	require 	such 	sacrifice,
it 	can 	reasonably 	be 	viewed 	as 	distinct 	from 	the 	full 	strike,
and 	thus 	not 	be 	extended 	protected 	status. 	On 	the 	other 	hand,
the 	intermittent 	strike 	is 	not 	sufficiently 	different 	than 	a
full 	strike, 	either 	in 	its 	form 	or 	in 	its 	effect 	upon 	the
bargaining 	relationship, 	to 	justify deeming 	one 	unlawful 	and 	the
other 	one 	not 	only 	lawful, 	but 	protected.
Furthermore, 	an 	attempt 	by 	this 	Board 	to 	deem 	intermittent
strikes 	as 	unlawful 	bargaining 	tactics 	would 	impermissively
inject 	the 	Board 	into 	the 	bargining 	process, 	and 	thus 	have 	the
Board 	take 	on 	a 	role 	which 	traditionally 	has 	not 	been 	extended
to 	similar 	labor 	boards. 	In 	condemning 	the 	NLRB's 	attempt 	to
deem 	such 	strike 	tactics 	as 	unlawful, 	the 	U.S. 	Supreme 	Court 	in
Insurance 	Agents, 	supra, 	stated:
We 	believe 	that 	the 	Board's 	approach 	in 	this
case--unless 	it 	can 	be 	defended, 	in 	terms 	of
sec. 	8(b)(3),5 	as 	resting 	on 	some 	unique
character 	of 	the 	union 	tactics 	involved
here--must 	be 	taken 	as 	proceeding 	from 	an
erroneous 	view 	of 	collective 	bargaining. 	It
must 	be 	realized 	that 	collective 	bargaining,
under 	a 	system where 	the 	Government 	does 	not
attempt 	to 	control 	the 	results 	of
negotiations, 	cannot 	be 	equated with 	an
academic 	collective 	search 	for 	truth--or
even 	with what 	might 	be 	thought 	to 	be 	the
5section 	8(b)(3) 	of 	the 	NLRA makes 	it 	an 	unfair 	labor
practice 	for 	a 	union 	to 	refuse 	to 	bargain 	collectively with 	an
employer. 	EERA 	contains 	a 	similar 	provision 	at 	section
3543.6(c).
176

ideal 	of 	one .... 	Abstract 	logical
analysis 	might 	find 	inconsistency 	between
the 	command 	of 	the 	statute 	to 	negotiate
toward 	an 	agreement 	in 	good 	faith 	and 	the
legitimacy 	of 	the 	use 	of 	economic 	weapons,
frequently 	having 	the 	most 	serious 	effect
upon 	individual 	workers 	and 	productive
enterprises, 	to 	induce 	one 	party 	to 	come 	to
the 	terms 	desired 	by 	the 	other. 	But 	the
truth 	of 	the 	matter 	is 	that 	at 	the 	present
statutory 	stage 	of 	our 	national 	labor
relations 	policy, 	the 	two 	factors--necessity
for 	good-faith 	bargaining 	between 	parties,
and 	the 	availability of 	economic 	pressure
devices 	to 	each 	to 	make 	the 	other 	party
incline 	to 	agree 	on 	one's 	terms--exist 	side
by 	side. 	. 	. 	.
But 	surely 	that 	a 	union 	activity 	is 	not
protected 	against 	disciplinary 	action 	does
not 	mean 	that 	it 	constitutes·a 	refusal 	to
bargain 	in 	good 	faith. 	The 	reason why 	the
ordinary 	economic 	strike 	is 	not 	evidence 	of
a 	failure 	to 	bargain 	in 	good 	faith 	is 	not
that 	it 	constitutes 	a 	protected 	activity 	but
that, 	as 	we 	have 	developed, 	there 	is 	simply
no 	inconsistency 	between 	the 	application 	of
economic 	pressure 	and 	good-faith 	collective
bargaining .... 	Surely 	it 	cannot 	be 	said
that 	the 	only economic 	weapons 	consistent
with 	good-faith 	bargaining 	are 	those 	which
minimize 	the 	pressure 	on 	the 	other 	party 	or
maximize 	the 	disadvantage 	to 	the 	party using
them. 	The 	catalog 	of 	union 	and 	employer
weapons 	that 	might 	thus 	fall 	under 	ban would
be 	most 	extensive .... 	[W]e 	think 	the
Board's 	approach 	involves 	an 	intrusion 	into
the 	substantive 	aspects 	of 	the 	bargaining
process--again, 	unless 	there 	is 	some
specific 	warrant 	for 	its 	condemnation 	of 	the
precise 	tactics 	involved 	here. 	The 	scope 	of
sec. 	8(d) 	are 	exceeded, 	we 	hold, 	by
inferring 	a 	lack 	of 	good 	faith 	not 	from 	any
deficiencies 	of 	the 	union's 	performance 	at
the 	bargaining 	table 	by 	reason 	of 	its
attempted 	use 	of 	economic 	pressure, 	but
solely 	and 	simply 	because 	tactics 	designed
to 	exert 	economic 	pressure were 	employed
during 	the 	course 	of 	the 	good-faith
negotiations. 	Thus 	the 	Board 	in 	the 	guise
of 	determining 	good 	or 	bad 	faith 	in
negotiations 	could 	regulate 	what 	economic
177

weapons 	a 	party might 	summon 	to 	its 	aid.
And 	if 	the 	Board 	could 	regulate 	the 	choice
of 	economic 	weapons 	that 	may 	be 	used 	as 	part
of 	collective 	bargaining, 	it 	would 	be 	in 	a
position 	to 	exercise 	considerable 	influence
upon 	the 	substantive 	terms 	on which 	the
parties 	contract. 	As 	the 	parties' 	own
devices 	became 	more 	limited, 	the 	Government
might 	have 	to 	enter 	even more 	directly 	into
the 	negotiation 	of 	collective 	agreements.
Our 	labor 	policy 	is 	not 	presently 	erected 	on
a 	foundation 	of 	government 	control 	of 	the
results 	of 	negotiations.
The 	role 	of 	this 	Board 	is 	not 	dissimilar 	from 	that 	of 	the
NLRB. 	Like 	the 	NLRA, 	EERA 	simply 	requires 	good 	faith 	bargaining
and 	does 	not 	require 	the 	parties 	to 	reach 	agreement. 	Nor 	is
there 	any 	provision 	of 	EERA which 	authorizes 	the 	Board 	to 	inject
itself 	into 	the 	bargaining 	process 	whenever, 	in 	its 	wisdom, 	the
Board 	determines 	that 	one 	party 	is 	"on 	the 	ropes." 	This 	simple
fact 	fatally 	undermines 	that 	portion 	of 	our 	colleagues' 	approach
which 	would 	find 	a 	public 	school 	strike 	unlawful 	whenever 	it 	is
disruptive, 	i.e., 	whenever 	it 	is 	effective. 	I 	seriously doubt
my 	colleagues 	will 	rush 	in 	to 	equalize 	bargaining 	power 	if 	it 	is
instead 	the 	employee 	organization 	that 	is 	overmatched.
The 	design 	and 	purpose 	of 	this 	Board 	is 	remarkably 	similar
to 	that 	of 	the 	NLRB. 6 The 	Legislature 	was 	fully 	aware 	of
existing 	labor 	law when 	it 	created 	EERA 	and 	PERB 	(as 	Member
Porter 	points 	out). 	It 	was 	thus 	aware 	that 	similar 	boards
6This 	Board 	will, 	of 	course, 	take 	into 	account 	differences
between 	the 	public 	and 	private 	sectors 	in 	interpreting 	the
statutes 	it 	administers.
178

administering 	similar 	statutes 	have 	not 	been 	given 	the 	authority
to 	influence 	the 	balance 	of 	power 	in 	bargaining 	relationships.
The 	Legislature 	could 	have 	created 	a 	statutory 	scheme 	which
contemplated 	such 	a 	role 	for 	PERB, 	but 	it 	did 	not.
As 	my 	colleagues 	have 	noted, 	PERB 	may 	seek 	injunctive 	relief
when: 	(1) 	it 	is 	more 	likely 	than 	not 	that 	a 	violation 	of 	EERA
has 	been 	committed; 	and 	(2) 	injunctive 	relief 	is 	just 	and
proper. 	As 	the 	intermittent 	strikes 	which 	have 	occurred 	in 	the
Compton 	Unified 	School 	District 	are 	not 	arguably 	prohibited 	(nor
protected) 	under 	EERA, 	injunctive 	relief 	is 	not 	available
through 	PERB. 	In 	fact, 	since 	the 	strikes 	involved 	here 	are 	not
arguably 	protected 	or 	prohibited 	under 	EERA, 	PERB 	simply 	has 	no
jurisdiction 	to 	seek 	injunctive 	relief. 	San 	Diego 	Teachers
Association 	v. 	Superior 	Court 	(1979) 	24 	Cal.3d 	1.
Therefore, 	the 	District 	is 	free 	to 	go 	directly 	to 	court 	to
seek 	relief 	on 	some 	basis 	other 	than 	EERA. 	For 	example, 	the
District 	could 	argue 	that 	the 	strike 	is 	unlawful 	at 	common 	law
under 	the .health 	and 	safety 	exception 	carved 	out 	by 	the 	Supreme
Court 	in 	County 	Sanitation 	(or 	seek 	an 	expansion 	of 	that
exception). 	Further, 	as 	the 	strikes 	are 	unprotected, 	the
District 	is 	free 	to 	take 	disciplinary 	action 	against 	the
strikers 	(consistent 	with 	other 	laws). 	While 	I 	recognize 	that
public 	school 	employers 	are 	more 	restricted 	than 	private 	sector
employers 	in 	the 	self-help 	measures 	that 	may 	be 	taken 	in
response 	to 	strikes, 	they 	are 	far 	from 	powerless. 	I 	am
179

confident 	that 	competent 	counsel 	can 	devise 	numerous 	lawful
responsive 	measures.
Now 	that 	I 	have 	outlined my 	position 	on 	the 	legality 	of 	the
strike 	issue, 	I 	will 	more 	fully 	comment 	on 	the 	theories 	advanced
by my 	colleagues. 	Chairperson Hesse 	and Member 	Porter 	argue
that 	intermittent 	strikes 	or, 	indeed, 	any 	strike 	engaged 	in 	by
the 	Compton 	Education 	Association 	is 	an 	unlawful 	refusal 	to
bargain 	and 	therefore 	should 	be 	enjoined. 	Their 	arguments 	bear
some 	comment. 	In 	my 	view, 	they 	depart 	from 	established 	and
workable 	precedent 	and, 	in 	some 	cases, 	tend 	to 	destablize
employer-employee 	relations.
The 	Board 	has 	erroneously 	concluded 	that 	a 	strike 	is 	a 	refusal
to 	bargain. 	In 	this 	case, 	there 	is 	no 	evidence 	that 	a 	strike
has 	frustrated 	the 	negotiating 	process.
Normally, 	the 	Board 	analyzes 	refusals 	to 	bargain 	under 	the
"totality 	of 	circumstances" 	test. 	This 	test, 	long 	used 	by 	the
NLRB, 	was 	adopted 	by 	this 	Board 	in 	Pajaro 	Valley 	Unified 	School
District 	(1978) 	PERE .Decision 	No. 	51. 	As 	explained 	in 	Pajaro
Valley, 	"this 	test 	looks 	to 	the 	entire 	course 	of 	negotiations 	to
determine 	whether 	the 	employer 	has 	negotiated 	with 	the 	requisite
subjective 	intention 	of 	reaching 	an 	agreement." 7 There 	are
certain 	acts, 	however, 	which 	have 	the 	potential 	to 	frustrate
7In 	Pajaro 	Valley, 	supra, 	the 	association 	alleged 	that 	the
employer 	lacked 	the 	requisite 	subjective 	intent 	to 	bargain 	in
good 	faith. 	Because 	employee 	organizations 	are 	under 	the 	same
requirement 	to 	bargain 	in 	good 	faith 	(see 	Government 	Code
section 	3543.6(c)), 	the 	totality 	of 	circumstances 	test 	is
equally 	applicable 	to 	employee 	organizations. 	El 	Dorado 	Union
High 	School 	District 	(1985) 	PERB 	Decision 	No. 	495.
180

negotiations 	and 	to 	undermine 	the 	exclusivity of 	the 	bargaining
agent 	which may 	be 	held 	unlawful 	without 	any 	determination 	of
subjective bad 	faith 	on 	the 	part 	of 	the 	employer. 	Pajaro
Valley, 	supra, 	and 	see 	NLRB 	v. 	Katz 	(1962) 	369 	U.S. 	736. 	The
parties 	engaged 	in 	extensive 	negotiations 	prior 	to 	impasse,
apparently 	engaged 	in 	the 	statutory 	impasse 	procedures 	in 	good
faith 	and 	conducted 	extensive 	post-impasse 	negotiations. 	Once
statutory 	impasse 	procedures 	have 	truly 	been 	exhausted 	and 	a
"second 	impasse" 	has 	been 	reached, 	the 	"impasse 	under 	EERA 	is
identical 	to 	impasse 	under 	the 	NLRA." 	Modesto 	City 	Schools
(1983) 	PERB 	Decision 	No. 	291. 	The 	District 	is 	not 	charging 	that
CEA 	bargained 	in 	bad 	faith 	at 	the 	table, 	only 	that 	the 	failure
to 	give 	sufficient 	notice 	and 	the 	strikes 	themselves 	constitute
unlawful 	practices. 	The 	majority 	has 	accepted 	the 	District's
view 	by 	concluding 	that 	any 	strike 	by CEA 	is 	itself 	a 	refusal 	to
bargain 	in 	good 	faith. 	Because 	it 	cannot 	point 	to 	subjective
bad 	faith, 	the 	Board 	has 	concluded 	that 	this 	strike 	is 	a 	per 	se
unfair 	practice, 	thereby departing 	from 	private 	sector 	precedent
which 	has 	decisively 	rejected 	the 	notion 	that 	striking 	is
inconsistent 	with 	good 	faith 	bargaining. 	NLRB 	v. 	Insurance
Agents 	International 	Union, 	supra.
To 	be 	consistent 	with 	the 	theory 	that 	some 	acts 	have 	such 	a
potential 	to 	frustrate 	negotiations 	that 	they 	may 	be 	classified
as 	per 	se 	violations 	of 	EERA, 	it 	is 	necessary 	to 	conclude 	that
this 	strike, 	which 	is 	taking 	place 	after 	exhaustion 	of 	the
statutory 	impasse 	procedures, 	is 	or 	has 	the 	potential 	to
181

frustrate 	negotiations. 	There 	is 	simply no 	evidence 	that 	this
is 	the 	case. 	Rather, 	the 	evidence 	suggests 	that 	the 	parties
simply 	cannot 	reach 	agreement. 	Nothing 	in 	the 	EERA 	requires
that 	they 	agree. 	Oakland 	Unified 	School 	District 	(1982) 	PERB
Decision 	No. 	275. 	We 	should be 	leery 	of 	injecting 	ourselves
into 	the 	bargaining 	process 	to 	force 	agreement 	in 	the 	name 	of
labor 	peace. 	Thus, 	in 	my view, 	negotiations 	are 	not 	frustrated
by CEA's 	actions; 	rather, 	the 	process 	has 	broken 	down 	in 	this
case 	because 	neither 	p~rty 	is 	willing 	to 	make 	the 	concessions
necessary 	to 	gain 	agreement. 	The 	strike 	is 	a 	symptom, 	not 	the
cause, 	of 	a 	bargaining 	breakdown. 	For 	this 	reason, 	I 	would 	not
view 	CEA's 	actions 	as 	a 	per 	se 	violation 	because 	I 	do 	not 	think
they 	significantly 	contribute 	to 	the 	stalemate 	that 	exists.
Rather, 	consistent 	with 	experience 	under 	the 	NLRA, 	I 	view 	CEA's
tactic 	as 	an 	unprotected 	activity. 	The 	majority 	incorrectly
regards 	the 	strike 	as 	a 	per 	se 	refusal 	to 	bargain 	and 	does 	so 	by
ignoring 	the 	rationale 	developed 	by 	PERB 	and 	the 	NLRB 	for
·concluding 	that 	certain 	acts; 	by 	thei~ nature, 	are 	violations.
Because 	the 	obligation 	to 	bargain 	is 	suspended, 	it 	is 	difficult
to 	conceive 	how 	striking 	can 	be 	a 	refusal 	to 	bargain.
EERA 	does 	not 	specifically 	provide 	that 	the 	duty 	to
negotiate 	ends 	after 	the 	completion 	of 	the 	statutory 	impasse
procedures 	or 	that 	the 	duty 	is 	a 	continuous 	one. 	However, 	in
Public 	Employment 	Relations 	Board 	v. 	Modesto 	City 	School
District 	(1982) 	136 	Cal.App.3d 	881, 	897 	the 	court 	noted:
[I]t 	is 	well 	settled 	in 	the 	private 	sector
that 	a 	legal 	impasse 	can 	be 	terminated 	by
182

nearly 	any 	change 	in 	bargaining-related
circumstances. 	"An 	impasse 	is 	a 	fragile
state 	of 	affairs 	and 	may 	be 	broken 	by 	a
change 	in 	circumstances 	which 	suggests 	that
attempts 	to 	adjust 	differences 	may 	no 	longer
be 	futile. 	In 	such 	a 	case, 	the 	parties 	are
obligated 	to 	resume 	negotiations 	and 	the
employer 	is 	no 	longer 	free 	to 	implement
changes 	in 	working 	conditions 	without
bargaining. 	Just 	as 	there 	is 	no 	litmus-paper
test 	to 	determine 	when 	an 	impasse 	has 	been
created, 	there 	is 	none 	which 	determines 	when
it 	has 	been 	broken. 	. 	. 	. 	Most 	obviously,
an 	impasse 	will 	be 	broken when 	one 	party
announces 	a 	retreat 	from 	some 	of 	its
negotiating 	demands." 	(Gorman, 	Labor 	Law
(1976) 	p. 	449; 	see 	also 	N.L.R.B. 	v. 	Sharon
Hats, 	Incorporated 	(5th 	Cir. 	1961) 	289 	F.2d
628.)
The 	above 	quotation 	clearly 	implies 	that 	the 	employer 	is
free 	to 	implement 	unilateral 	changes 	consistent 	with 	its 	last
best 	offer 	at 	the 	table 	and 	this 	in 	turn 	implies 	that 	the 	duty
to 	bargain 	is 	suspended 	after 	impasse. 	In Moreno 	Valley Unified
School 	District 	v. 	Public 	Employment 	Relations 	Board 	(1983) 	142
Cal.App.3d 	191, 	202, 	the 	court 	made 	exactly 	this 	point. 	Noting
that 	EERA 	comprehends 	that 	an 	impasse 	may 	be 	declared 	only when
meeting 	and 	negotiating 	have 	come 	to 	an 	end, 	the 	court 	conclud~d
that 	". 	the 	start 	of 	impasse 	denoted 	the 	end 	of 	'meeting 	and
negotiating' 	in 	the 	formal 	sense ... 	" 	For 	this 	reason, 	the
court, 	in Moreno 	Valley, 	supra, 	found 	that, 	although 	certain
employer 	acts 	violated 	the 	duty 	to 	participate 	in 	good 	faith 	in
the 	impasse 	process, 	they 	could 	not 	also 	violate 	the 	duty 	to
bargain 	in 	good 	faith. 	In 	Victor 	Valley 	Union 	High 	School
District 	(1986) 	PERB 	Decision 	No. 	565, 	the 	Board 	held 	that 	the
duty 	to 	bargain 	"was 	dormant 	because 	the 	parties 	were 	in 	the
183

midst 	of 	the 	statutory 	impasse 	procedures. 11 	The 	view 	that 	the
obligation 	to 	bargain 	is 	suspended 	once 	impasse 	is 	reached 	is 	a
well-accepted 	tenet 	of 	private 	sector 	labor 	law 	(see, 	generally,
Morris, 	The 	Developing 	Labor 	Law, 	supra, 	at 	p. 	636). 	In 	this
case, 	the 	parties 	have 	exhausted 	impasse 	procedures, 	reached
"true 11 	impasse 	and 	nothing 	has 	broken 	the 	impasse 	between 	the
parties. 	Nevertheless, 	the 	majority 	concludes 	that, 	because
this 	strike 	disrupts 	the 	educational 	process 	(even 	though 	the
bargaining 	obligation 	is 	dormant), 	it 	is 	a 	per 	se 	refusal 	to
bargain.
Although Member 	Porter 	follows 	the 	traditional 	labor
relations 	view when 	he 	says 	that 	the 	employer 	is 	free 	to 	make
certain 	unilateral 	changes 	after 	impasse, 	he 	does 	not 	accept 	the
logical 	consequences 	of 	his 	statement. 	Lawful 	unilateral
changes 	may 	be 	made 	by 	the 	employer 	precisely because 	the 	duty
to 	bargain 	is 	dormant. 8 It 	is 	inconsistent 	to 	hold 	that 	the
duty 	to 	bargain 	is 	suspended 	r 	the 	employer 	but 	active 	for 	the
employee 	association.
Bit 	is 	true 	that 	an 	employer's 	unilateral 	change 	that 	is
inconsistent 	with 	its 	last 	best 	offer 	violates 	the 	duty 	to
bargain, 	even 	during 	impasse. 	However, 	this 	does 	not 	change
the 	fact 	that 	the 	duty 	to 	bargain 	is 	otherwise 	dormant. 	The
inconsistent 	unilateral 	change 	is 	a 	bargaining 	violation
because 	the 	employer 	must 	wait 	for 	a 	break 	in 	the 	impasse, 	then
negotiate 	consistent 	with 	the 	intended 	change 	until 	another
impasse 	(or 	agreement) 	is 	reached 	before 	instituting 	the
change. 	There 	are 	no 	analgous 	restrictions 	on 	the 	right 	to
strike 	because 	an 	otherwise 	lawful 	strike 	does 	not 	in 	any 	way
undermine 	bargaining 	either 	presently 	or 	prospectively.
184

Disruption 	of 	the 	education 	process 	is 	not, 	standing 	alone, 	an
unfair 	practice. 	PERB 	has 	no 	authority 	to 	enjoin 	something 	that
is 	not 	an 	unfair 	practice.
The 	majority 	argues 	that 	strike 	activity 	on 	the 	part 	of 	the
CEA 	is 	proscribed 	by 	its 	view 	that 	the 	general 	thrust 	of 	EERA
prohibits 	disruption 	of 	the 	educational 	process. 	In 	a 	footnote
to 	her 	concurring 	opinion, 	Chairperson 	Hesse 	says, 	"[T]he
discussion 	in 	this 	opinion 	is 	premised 	on 	the 	harm 	caused 	by 	the
strike, 	regardless 	of 	whether 	it 	is 	intermittent 	in 	nature 	or
not." 	In 	the 	main 	portion 	of 	her 	opinion 	she 	notes, 	"A 	seminal
question, 	therefore, 	is 	whether 	the 	tactic 	of 	causing 	a 	total
breakdown 	in 	education 	. 	. 	can 	constitute 	a 	violation 	of 	EERA
and, 	if 	so, 	what 	is 	the 	appropriate 	way 	for 	the 	Board 	to
adjudicate 	such 	an 	alleged 	violation." 	Strikes 	by 	their 	nature
are 	disruptive 	and 	cause 	harm. 	Any 	effective 	teacher 	strike 	is
a 	per 	se 	refusal 	to 	bargain 	according 	to 	Chairperson 	Hesse.
However, 	as 	is 	readily 	apparent 	from 	a 	study 	of 	EERA, 	nothing 	in
it 	directly 	prohibits 	strikes. 	In 	fact, 	as 	mentioned 	above, 	the
Board 	has 	found 	that 	the 	language 	of 	section 	3543 	"uses 	plainer
and 	more 	universally 	understood 	language 	to 	clearly 	and 	directly
authorize 	employee 	participation 	in 	collective 	actions
traditionally 	related 	to 	the 	bargaining 	process. 	Thus,
except 	as 	limited 	by 	other 	provisions 	of 	EERA, 	section 	3543
authorizes 	work 	stoppages." 	Modesto 	Teachers 	Association,
supra, 	at 	p. 	62.
Further, 	nothing 	in 	EERA 	suggests 	it 	is 	anything 	more 	than 	a
comprehensive 	labor 	relations 	statute. 	The 	purposes 	of 	EERA 	are
185

set 	forth 	in 	Government 	Code 	section 	3540:
to 	promote 	the 	improvement 	of 	personnel
management 	and 	employer-employee 	relations
within 	the 	public 	school 	systems 	in 	the
State 	of 	California 	by 	providing 	a 	uniform
basis 	for 	recognizing 	the 	right 	of 	public
school 	employees 	to 	join 	organizations 	of
their 	own 	choice, 	to 	be 	represented 	by 	such
organizations 	in 	their 	professional 	and
employment 	relations 	with 	public 	school
employers, 	to 	select 	one 	employee
organization 	as 	the 	exclusive 	representative
of 	the 	employees 	in 	an 	appropriate 	unit, 	and
to 	afford 	certificated 	employees 	a 	voice 	in
the 	formulation 	of 	educational 	policy.
The 	focus 	of 	EERA 	is 	the 	promotion 	of 	collective 	bargaining.
It 	is 	not 	PERB's 	job 	to 	determine 	educational 	policy.
Unable 	to 	find 	specific 	language 	in 	EERA which 	makes 	strike
activity 	unlawful, 	Chairperson 	Hesse 	expands 	upon 	what 	is 	a
specific 	and 	limited 	legislative 	mandate. 	Citing 	San 	Diego
Teachers 	Association 	v. 	Superior 	Court 	(1979) 	24 	Cal.3d 	1 	and
El 	Rancho 	Unified 	School 	District 	v. 	National 	Education 	Assn.
(1983) 	33 	Cal.3d 	946, 	Chairperson 	Hesse 	concludes 	that 	PERB 	may
seek 	judicial 	intervention whenever, 	in 	its 	view, 	the
continuity 	and 	quality 	of 	educational 	services 	are 	threatened.
Continuity 	and 	quality 	of 	educational 	services 	are 	factors
appropriately 	considered 	by 	the 	Board 	in 	exercising 	its
remedial 	authority. 	Nothing 	in 	San 	Diego 	Teachers 	Association
or 	El 	Rancho 	Unified 	School 	District 	holds 	that 	disruption 	of
the 	educational 	process 	alone 	is 	an 	unfair 	practice. 	Such 	a
broad 	reading 	of 	San 	Diego 	and 	El 	Rancho 	is 	not 	justified 	by
the 	language 	of 	those 	cases.
186

San 	Diego 	Teachers 	Association, 	supra, 	held 	that 	PERB 	had
initial 	exclusive 	jurisdiction 	because 	the 	conduct 	complained
of 	by 	the 	district 	was 	arguably 	an 	unfair 	practice. 	The 	court,
therefore, 	concluded 	that 	it 	was 	necessary 	for 	the 	district 	to
exhaust 	administrative 	remedies, 	i.e., 	to 	seek 	a 	determination
from 	PERB 	that 	the 	association was 	committing 	an 	unfair
practice 	and 	to 	apply 	to 	PERB 	to 	enjoin 	that 	unfair 	practice.
In 	rejecting 	the 	District's 	argument 	that 	the 	relief 	requested
by 	PERB 	"would 	reflect 	only 	a 	narrow 	concern 	for 	the
negotiating 	processes 	mandated 	by 	EERA 	and 	would 	ignore
strike-caused 	harm 	to 	the 	public 	and 	particularly 	the
infringement 	on 	children's 	rights 	to 	education," 	the 	court
concluded 	that 	this 	argument 	erroneously 	presupposes 	"a
disparity 	between 	public 	and 	PERB 	interests." 	Thus, 	in
fashioning 	the 	relief 	requested 	there 	is 	no 	assumed 	disparity
of 	interests 	between 	the 	District 	and 	PERB. 	However, 	the 	court
went 	on 	to 	carefully 	emphasize 	that:
it 	does 	not 	follow 	from 	the 	disruption
attendant 	on 	a 	teachers' 	strike 	that
immediate 	injunctive 	relief 	and 	subsequent
punishment 	for 	contempt 	are 	typically 	the
most 	effective 	means 	of 	minimizing 	the
number 	of 	teaching 	days 	lost 	from work
stoppages. 	(P. 	11.)
Elsewhere 	in 	the 	decision 	the 	court 	noted 	that 	PERB's
mission 	to 	foster 	constructive 	employment
relations 	(section 	3540) 	surely 	includes 	the
long 	range 	minimization 	of 	work 	stoppages.
PERB 	may 	conclude 	in 	a 	particular 	case 	that
a 	restraining 	order 	or 	injunction would 	not
hasten 	the 	end 	of 	a 	strike 	(as 	perhaps
neither 	did 	here) 	and, 	on 	the 	contrary,
187

would 	impair 	the 	success 	of 	statutorily
mandated 	negotiations 	between 	union 	and
employer.
Thus, 	Chairperson 	Hesse 	significantly enlarges 	upon 	the 	meaning
of 	the 	phrases 	extracted 	from 	San 	Diego 	Teachers 	Association,
supra.
Where 	a 	strike 	is 	arguably 	an 	unfair 	practice, 	PERB 	can 	seek
judicial 	relief. 	However, 	PERB must 	first 	establish 	that 	it 	has
reasonable 	cause 	to 	believe 	that 	the 	activity 	it 	seeks 	to 	enjoin
is 	arguably 	prohibited. 	Public 	Employment 	Relations 	Board 	v.
Modesto 	City 	Schools 	(1982) 	136 	Cal.App.3d 	881, 	901-902.
Chairperson 	Hesse 	finds 	that, 	because 	this 	strike 	is 	disruptive,
it 	is 	therefore 	unlawful. 	The 	Chairperson 	has 	not 	explained 	why
this 	strike 	is 	unlawful.
While 	it 	is 	true 	that 	PERB 	has 	authority 	to 	redress
violations 	of 	EERA 	beyond 	those 	specifically 	addressed 	in
section 	3543.5 	and 	3543.6, 	EERA 	specifically 	provides 	for 	the
duty 	of 	fair 	representation 	and 	public 	notice. 	EERA 	section
3544.9 	requires 	the employee 	organization 	to 	fairly 	represent.
all 	employees 	in 	the 	unit. 	Section 	3547 	sets 	forth 	public
notice 	requirements 	and 	specifically 	authorizes 	the 	Board 	to
adopt 	regulations 	implementing 	the 	public 	notice 	statutes.
There 	is 	nothing 	in 	EERA which 	says 	that 	disruption 	of 	the
educational 	process 	is 	itself, 	without 	more, 	a 	violation.
Presumably, 	if 	the 	District 	were 	able 	to 	hire 	adequate
substitutes 	to 	provide 	the 	basic 	minimum-day 	education,
Chairperson 	Hesse 	would 	find 	the 	strike 	to 	be 	lawful 	or 	at 	least
188

not 	prohibited. 	As 	noted 	above, 	a 	rationale 	that 	labels
activity 	unlawful 	only 	if 	it 	is 	effective 	impermissibly
interjects 	the 	Board 	into 	the 	bargaining 	process. 	Further, 	an
ad 	hoc 	rule 	which 	depends 	on 	the 	degree 	of 	disruption 	fails 	to
provide 	parties 	with 	guidance 	for 	future 	conduct.
I 	do 	not 	mean 	to 	imply 	that 	a 	strike 	can 	never 	be
prohibited. 	However, 	to 	be 	prohibited, 	it 	must 	violate 	a
provision 	of 	EERA. 	My 	colleagues 	have 	not 	offered 	a 	plausible
theory 	on which 	to 	find 	such 	a 	violation.
A work 	stoppage 	is 	not 	equivalent 	to 	a 	unilateral 	change.
Member 	Porter 	asserts 	that 	a 	work 	stoppage 	is 	an 	unlawful
unilateral 	change. 	He 	does 	not 	distinguish 	between 	employees
who 	seek 	to 	remain 	on 	the 	job 	and 	receive 	the 	benefits 	of
working 	yet 	unilaterally 	change 	some 	of 	the 	terms 	of 	their
employment 	and 	employees 	who 	are 	willing 	to 	withhold 	their
labor. 	This 	crucial 	distinction 	is 	articulated 	in Moreno
Valley, 	supra, 	at 	p. 	197: 	"[I]t 	is 	manifest 	that 	a 	unilateral
change 	in 	employment 	conditions 	is 	not 	the 	same 	thing 	as 	a
strike, 	at 	any 	stage 	of 	the 	employment 	dispute." 	I 	recognize
that 	Member 	Porter 	equates 	employee 	strikes 	with 	employee
unilateral 	action 	while 	the Moreno 	court 	rejects 	the 	equation 	of
employee 	strikes 	with 	employer 	unilateral 	action. 	What 	is
significant, 	however, 	is 	that 	the Moreno 	court 	correctly 	rejects
the 	view 	that 	unilateral 	acts 	are 	equivalent 	to 	a 	strike. 	The
cases 	cited 	by Member 	Porter 	for 	the 	proposition 	that 	employee
organizations 	can 	make 	unlawful 	unilateral 	changes 	have 	been
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applied 	only where 	the 	employees 	sought 	to 	stay 	on 	the 	job, 	yet
unilaterally 	determine 	the 	content 	of 	the 	job. 	Member 	Porter
recognizes 	this 	but 	assumes 	the 	cases 	he 	cites 	are 	so 	limited
because 	strikes 	are 	protected 	under 	NLRA 	and, 	therefore, 	there
are 	no 	examples 	of 	strikes 	analyzed 	as 	unilateral 	changes. 	A
more 	compelling 	reason 	why 	he 	can 	find 	no 	examples 	is 	that
unilateral 	changes 	in 	terms 	and 	conditions 	of 	employment 	are 	not
the 	same 	as 	the 	withholding 	of 	services. 	Employer 	unilateral
changes 	signal 	the 	end 	of 	mutual 	dispute 	resolution, 	while 	a
work 	stoppage 	is 	a 	pressure 	tactic 	designed 	to 	force 	mutual
agreement. 	See 	Moreno 	Valley, 	supra, 	at 	pp. 	197-198. 	Because
intermittent 	strikes 	of 	the 	kind 	taking 	place 	here 	constitute 	a
withholding 	of 	services 	with 	its 	consequent 	financial 	impact 	on
teachers, 	they 	are 	not 	unilateral 	changes.
The 	argument 	that 	an 	agreement 	in 	exchange 	for 	not 	striking
fails 	for 	want 	of 	lawful 	consideration 	begs 	the 	question.
Member 	Porter's 	argument 	that 	acquiring 	agreement 	through
the 	use 	of 	work 	stoppages 	is 	based 	on 	unlawful 	consideration
begs 	the 	question. 	To 	make 	this 	argument, 	one 	must 	assume 	that
strikes 	are 	unlawful. 	Once 	this 	assumption 	is 	made, 	it
logically 	follows 	that 	an 	agreement 	based 	on 	the 	threat 	of
illegal 	activity 	is 	itself 	unlawful. 	While 	this 	argument 	does
not 	elucidate 	the 	underlying 	reasons 	why 	strikes 	are 	illegal, 	it
carries 	with 	it 	unsettling 	implications. 	Many 	contracts 	contain
no-strike 	clauses. 	Presumably, 	under 	Member 	Porter's 	theory,
such 	clauses 	would 	be 	void 	or 	unenforceable 	since 	a 	promise 	not
to 	strike 	is 	unlawful 	consideration. 	Additionally, 	this
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argument 	implies 	that 	as 	an 	expedient, 	an 	employer 	may 	agree
with 	a 	striking 	employee 	organization 	to 	end 	the 	strike 	and
afterwards 	freely 	repudiate 	the 	agreement, 	conduct 	that 	hardly
promotes 	stability.
The 	absence 	of 	the 	"16 	words" 	does 	not 	preclude 	finding 	strikes
under 	EERA 	protected.
Member 	Porter 	argues 	that 	the 	Legislature 	deliberately 	chose
to 	withhold 	the 	right 	to 	strike 	from 	employees 	covered 	by EERA.
He 	finds 	this 	expression 	of 	legislative 	intent 	by 	the 	absence 	in
EERA 	of 	the 	phrase 	"to 	engage 	in 	other 	concerted 	activities 	for
the 	purpose 	of 	collective 	bargaining 	or 	other 	mutual 	aid 	or
protection," 	a 	recognized 	euphemism 	for 	the 	express 	right 	to
strike. 	While 	I 	agree 	that 	the 	presence 	of 	this 	phrase would 	be
a 	strong 	argument 	that 	the 	Legislature 	intended 	to 	protect
strikes, 	the 	absence 	of 	this 	phrase 	does 	not 	mean 	that 	the
Legislature 	intended 	to 	make 	strikes 	unprotected 	or 	prohibited.
To 	effectuate 	the 	intent 	of 	the 	Legislature, 	every 	statute
should 	be 	construed 	with 	reference 	to 	the 	whole 	system of 	law 	of
which 	it 	is 	a 	part. 	Cannon 	v. 	American 	Hydrocarbon 	Corp. 	(1970)
4 	Cal.App.3d 	639. 	Moreover, 	it 	is 	a 	basic 	rule 	of 	statutory
construction 	to 	give 	effect 	to 	statutes 	according 	to 	the 	usual
import 	of 	the 	language 	employed 	in 	framing 	them. 	Live 	and 	Learn
v. 	City 	of 	Los 	Angeles 	(1986) 	186 	Cal.App.3d 	407. 	In 	my 	view,
we 	should 	look 	to 	the 	entire 	statutory 	scheme 	and 	the 	plain
language 	of 	EERA 	to 	determine 	whether 	strikes 	are 	protected,
unprotected 	or 	unlawful.
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Applying 	these 	principles, 	for 	example, 	it 	is 	simple 	to
conclude 	that 	the 	Firefighters 	Act, 	Labor 	Code 	sections
1960 	1963, 	prohibits 	strikes 	by 	firefighters 	not 	because 	the
statute 	does 	not 	contain 	the 	16 words 	but 	because 	the
Legislature 	has 	expressly 	prohibited 	them. 	Where 	there 	is 	no
ambiguity, 	there 	is 	no 	need 	for 	interpretation. 	"Clear
statutory 	language 	no 	more 	needs 	to 	be 	interpreted 	than 	pure
water 	needs 	to 	be 	strained." 	Holder 	v. 	Superior 	Court 	(1969)
269 	Cal.App.2d 	314, 	317. 	The 	fact 	that 	the 	Legislature 	chose
not 	to 	rely 	on 	the 	absence 	of 	the 	16 words 	suggests 	that 	the
absence 	of 	those 	words 	is 	not 	dispositive.
Member 	Porter 	cites 	numerous 	public 	sector 	labor 	relations
statutes, 	some 	of 	which 	contain 	the 	16 	words 	and 	some 	of 	which
do 	not. 	These 	statutes 	vary 	greatly 	in 	their 	comprehensiveness,
and 	it 	is 	often 	not 	apparent 	why 	some 	statutes 	contain 	the 	16
words 	and 	why 	some 	do 	not. 	However, 	Member 	Porter 	would 	agree
that 	strikes 	under 	statutes 	containing 	the 	16 	words 	are
protected. 	From 	this 	I 	conclude 	that 	the 	Legislature 	has 	not
condemned 	public 	sector 	strikes 	per 	se.
Looking 	at 	a 	statute 	as 	a 	whole 	may 	reveal 	obvious 	reasons
'why 	protection 	for 	strike 	activity 	has 	been 	withheld. 	For
example, 	the 	Winton Act 	(Education 	Code 	sections 	13080-13088),
which 	preceded 	EERA, 	did 	not 	contain 	the 	16 	words. 	But 	the
Winton 	Act 	does 	not 	provide 	for 	collective 	bargaining 	as 	that
term 	is 	normally 	used. 	A strike 	designed 	to 	effectuate 	a
collective 	bargaining 	agreement 	makes 	little 	sense 	in 	this
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context. 	Again, 	the 	absence 	of 	the 	16 words 	is 	not 	dispositive;
rather, 	the 	limitations 	of 	the Winton Act 	itself 	suggest 	strikes
are 	not 	protected.
The 	absence 	of 	the 	16 	words 	does 	not 	prove 	that 	strikes 	are
prohibited 	or 	unprotected. 	Rather, 	I 	would 	look 	to 	what 	EERA
actually 	says. 	I 	find 	that 	the 	language 	of 	section 	3543
provides 	ample 	justification 	for 	the 	view 	that 	strikes 	are, 	in
general, 	protected 	activity. 	I 	therefore 	disagree 	with 	my
colleagues 	that 	strikes 	are 	not 	a 	protected 	activity.
Conflict 	with 	the 	Constitution 	and 	Education 	Code.
Member 	Porter 	argues 	that 	the 	Constitutional 	mandate 	of 	six
months 	of 	instruction 	per 	year 	(Art. 	IX, 	section 	5) 	and 	the
Education 	Code 	requirement 	of 	nearly 	nine 	months 	of 	instruction
(section 	41420) 	are 	in 	direct 	conflict with 	the 	notion 	of 	public
school 	employee 	strikes. 	While 	PERB 	is 	not 	empowered 	to 	enforce
the 	Constitution 	or 	the 	Education 	Code, 9 it 	does 	have
exclusive 	initial 	jurisdiction 	to 	enforce 	the 	statutes 	it
administers, 10 in 	this 	case, 	EERA. 	Furthermore, 	it 	is 	within
an 	administrative 	agency's 	traditional 	authority 	to 	interpret
existing 	law 	in 	the 	course 	of 	discharging 	its 	statutory
obligations. 	Goldin 	v. 	Public 	Utilities 	Commission 	(1979) 	23
Cal.3d 	638; 	Regents 	of 	the 	University of 	California 	v. 	PERB
9see, 	e.g., 	California 	School 	Employees 	Association 	v.
Travis 	Unified 	School 	District 	(1984) 	156 	Cal.App.3d 	242;
California 	School 	Employees 	Association 	v. 	Azusa 	Unified 	School
District 	(1984) 	152 	Cal.App.3d 	580.
lOsan 	Diego 	Teachers 	Association 	v. 	Superior 	Court, 	supra.
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(1983) 	139 	Cal.App.3d 	1037. 	Part 	and 	parcel 	of 	this 	process 	is
the 	harmonizing, 	if 	possible, 	of 	EERA with 	other 	existing 	laws.
Thus, 	it 	is 	proper 	for 	PERB 	to 	consider 	the 	existence 	of
relevant 	provisions 	of 	the 	Constitution 	and 	the 	Education 	Code
in 	interpreting 	EERA.
While Member 	Porter's 	argument 	is 	worthy 	of 	consideration 	in
future 	cases, 	the 	facts 	before 	us 	here 	present 	no 	actual 	or
imminent 	conflict 	between 	the 	teacher 	strikes 	and 	mandatory
minimum 	days 	of 	instruction. 	Even 	if 	one 	assumes 	that
instruction 	effectively ceased 	on 	the 	15 	days 	the 	Association
has 	thus 	far 	been 	out 	on 	strike, 	there 	is 	no 	allegation 	that
those 	days 	cannot 	be 	made 	up. 	In 	fact, 	the 	Association 	alleges
that 	it 	has 	offered 	to 	make 	up 	the 	days 	lost 	so 	far. 	The 	facts
at 	this 	time 	do 	not 	place 	the 	minimum 	number 	of 	instructional
days 	guaranteed 	by 	the 	Constitution 	and 	the 	Education 	Code 	in
jeopardy. 	Thus, 	the 	issue 	of 	potential 	conflict 	between 	such
guarantees 	and 	teacher 	strikes 	is 	simply 	not 	ripe 	for 	our
consideration. 	Member 	Porter's 	assertion 	that 	a 	strike 	could
theoretically 	last 	indefinitely, 	while 	true, 	is 	not 	a 	sufficient
basis 	for 	outlawing 	all 	strikes, 	of 	whatever 	duration.
Furthermore, 	while 	actual 	conflict 	between 	teacher 	strikes 	and
the 	Constitution 	and/or 	Education 	Code 	might 	necessitate 	finding
some 	strikes 	unprotected, 	it 	is 	a 	separate 	issue 	entirely 	as 	to
whether 	such 	conflict 	would 	render 	the 	strikes 	unlawful 	under
EERA. 	In 	any 	case, 	the 	use 	of 	such 	a 	theory 	prematurely 	further
reflects 	the 	desperate 	nature 	of 	my 	colleagues' 	quest 	to 	find 	a
basis 	for 	enjoining 	strikes 	they 	find 	personally distasteful.
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