Fremont Unified School District * * * OVERRULED IN PART by Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, as recognized in Oakland Unified School District (2024) PERB Decision No. 2906, p. 18. * * * (PERB I054E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
)
)
)
)
)
FREMONT UNIFIED SCHOOL DISTRICT,
Charging Party,
v.
FREMONT UNIFIED DISTRICT TEACHERS
ASSOCIATION,
Respondent.
Case No . SF-CO-380
PERB Order No. IR-54
May 15, 1990
Appearances: Breon, O'Donnell, Miller, Brown & Dannis by
Bridget A. Flanagan, Attorney, for Fremont Unified School
District; California Teachers Association by Ramon E. Romero,
Attorney, for Fremont Unified District Teachers Association.
Before Hesse, Chairperson; Craib, Shank, Camilli and Cunningham,
Members.
DECISION
HESSE, Chairperson: This case is before the Public
Employment Relations Board (PERB or Board) on a Request for
Injunctive Relief filed by the Fremont Unified School District
(District) after three one-day strikes by the Fremont Unified
District Teachers Association (Association).
SUMMARY OF FACTS
The District and the Association are parties to a collective
bargaining agreement effective July 1, 1986 through June 30,
1989. The parties engaged in negotiations for a three-year
successor agreement during June, July, August and September
* * * OVERRULED IN PART by Fresno County In-Home Supportive Services Public
Authority (2015) PERB Decision No. 2418-M, as recognized in Oakland Unified
School District (2024) PERB Decision No. 2906, p. 18. * * *

1989.l After negotiations failed to produce an agreement,
impasse was declared and the parties proceeded through mediation
and factfinding. A factfinding report issued on February 16,
1990,2 and found in favor of the District's position on the
monetary issues.
Pursuant to PERB case law, negotiations resumed after the
issuance of the factfinding report, with eight bargaining
sessions occurring from February 20 to March 1. The Association
declared impasse on March 1 and, in accord with its February 26
notice to the District, the Association engaged in a one-day
strike on March 2.
Following the strike, the District sought assurances from
the Association that a 48-hour notice would be provided for all
future strikes. The Association, declining to give such
assurances, responded that "appropriate legal notice" would be
provided in the future. The Association also stated it had no
current plan to strike again, but would consider doing so only in
response to District unfair practices or if no progress was made
in another round of bargaining.
Based upon the Association's dual actions of the March 2
strike and the failure to promise to give a 48-hour notice of
future work stoppages, the District filed an unfair practice
charge (Case No. SF-CO-380) with PERB on March 7, alleging the
1Approximately 17 bargaining sessions occurred during this
period.
Unless otherwise stated, all dates refer to 1990.

Association failed to bargain in good faith and participate in
good faith in the impasse procedures. On this same date, the
District filed a request for injunctive relief, which was
summarily denied by the Board on March 9.
The parties met again on March 19, and continued to meet
until March 27. During this period, it appears that neither
party was willing to make concessions to reach agreement.
Thereafter, the Association gave the District a two-day notice
and engaged in a second one-day strike on April 4.
On April 4, the District amended its prior unfair practice
charge to include the additional allegations of the Association's
failure to bargain in good faith and participate in good faith in
the impasse procedures.
On April 19, the Association engaged in a third one-day
strike, also after a two-day notice was given to the District.
On May 7, the District filed a second amended unfair practice
charge and, based on the strike activity, a request for
injunctive relief.3 On April 30, May 3 and 7, the parties again
met in negotiations. Prior to April 30, there is no evidence
that either party was ready or willing to negotiate or make
concessions. On May 3, the Association notified the District
that it would engage in a two-day strike on May 8 and 9.
However, no strike occurred on these days.
3Throughout these negotiations, the Association filed at
least eight unfair practice charges against the District.

Between 80 and 90 percent of the teaching staff participated
in the series of one-day strikes. The District has been able to
replace approximately 50 percent of the striking teachers with
substitutes. Student attendance, while down between 50 and 70
percent on strike days, rebounds to near normal attendance on
nonstrike days.
DISCUSSION
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 the Educational Employment Relations Act
(EERA or Act).4 Specifically, PERB has exclusive initial
jurisdiction to determine whether a strike is an unfair practice
and what, if any, remedies the Board should pursue.
In Public Employment Relations Board v. Modesto City Schools
District (1982) 136 Cal.App.3d 881, 896, the appellate court
ruled that a superior court must grant the Board's request for
injunctive relief when two essential requirements have been met:
(1) the Board has "reasonable cause" to believe that the charging
party has committed an unfair practice; and (2) injunctive relief
is "just and proper."
In determining whether there is reasonable cause to believe
an unfair practice has been committed, PERB " . . . need not
establish an unfair labor practice has in fact been committed,"
4EERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code.

but that PERB's theory is ". . . neither insubstantial nor
frivolous." (Id. at pp. 896-897, emphasis in original.) In the
present case, PERB statutory impasse procedures have been
completed. Under Modesto City Schools (1983) PERB Decision
No. 291, the Board held that, after the recommendations of the
factfinder, the parties may remain at impasse or return to the
bargaining table until they reach agreement or again reach
impasse. As stated by the court in Public Employment Relations
Board v. Modesto City Schools District, supra. 136 Cal.App.3d
881, 898-99:
We find nothing in EERA intimating that the
duty to bargain automatically ceases at the
end of the impasse procedures. Even though
section 3548.4 may not mandate post-
factfinding mediation, it does provide that
mediation efforts may continue. Moreover, as
discussed infra, District's contention that,
under the instant circumstances, it had no
duty to bargain after issuance of a
factfinding report is without support in the
law and would undermine the collective
bargaining process established by the EERA to
improve employer-employee relations within
the public school system of California. If,
after exhausting statutory impasse
procedures, an employer's duty to bargain
permanently ceases under all circumstances,
the impasse procedure will, as the
Association contends, become an empty
charade. [Fn. omitted.]
Indeed, it is well settled in the private
sector that a legal impasse can be terminated
by 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." [Citations.]
As the Association contends, and we concur,
since collective bargaining is at the heart
of the EERA scheme, it is necessary that PERB
embrace the concept of the duty to bargain
which revives when impasse is broken. "The
existence of impasse resolution procedures
does not negate this conclusion. Whether one
considers impasse to happen at the beginning,
the end, or throughout the statutory impasse
resolution mechanism, at some point that
impasse can be broken, just as in the private
sector. When it is, the duty to bargain
revives."
(Emphasis in original.)
When the parties reach this second impasse after the statutory
impasse procedures have been completed, PERB has no authority to
recertify impasse or reinvoke the impasse procedures. (Modesto
City Schools, supra. PERB Decision No. 291, p. 38.) The
District's allegations show that the parties completed the
statutory impasse procedures, resumed bargaining after the
factfinder's recommendations, and reached a second impasse on
March 1.5 (Modesto City Schools, supra, PERB Decision No. 291,
pp. 37-38.) After the March 2 one-day strike, the parties
resumed meeting. On March 27, the Association again declared
5A1though the second impasse was declared by the
Association, the District does not dispute that the parties had
reached this impasse.

impasse. On April 4 and 19, the Association engaged in one-day
strikes.
The second amended unfair practice charge, filed on May 7,
alleges that the Association engaged in bad faith bargaining
conduct during the EERA statutory impasse procedures, post-
factfinding negotiations, and post-impasse negotiations. These
allegations include misrepresentations of District bargaining
proposals, submission of regressive bargaining proposals, failure
to provide financial information, slowdowns and work-to-rule
activities, and one-day strikes on March 2, April 4 and 19.6
Under the traditional totality of the circumstances test7
and assuming that the unfair practice charge allegations are
true, such allegations, dating back to mediation and factfinding,
constitute sufficient facts to state a prima facie violation of
6While the second amended unfair practice charge also
alleged that, on May 3, the Association notified the District of
its intention to stage a two-day strike on May 8 and 9, no strike
occurred on these days.
7PERB uses both a "per se" and a "totality of conduct" test
in determining whether a party's negotiating conduct constitutes
an unfair practice, depending on the specific conduct involved
and its effect on the negotiating process. (Regents of the
University of California (SUPA) (1985) PERB Decision No. 520;
Pajaro Valley Unified School District (1978) PERB Decision
No. 51; Stockton Unified School District (1989) PERB Decision
No. 143.) The duty to bargain in good faith requires the parties
to negotiate with genuine intent to reach agreement and a
"totality of conduct" test is generally applied to determine if
the parties have bargained in good faith. This test looks to the
entire course of negotiations to see whether the parties have
negotiated with the required subjective intention of reaching an
agreement. Certain acts have such potential to frustrate
negotiations and undermine the exclusivity of the bargaining
agent that they are held to be unlawful without any finding of
subjective bad faith. These are considered "per se" violations,
(Pajaro Valley Unified School District, supra.)

section 3543.6(c) and (d) of EERA.8 However, the fact that the
District's unfair practice charge states a prima facie violation
of the statute does not necessarily satisfy the higher
"reasonable cause" standard upon which a decision to seek
injunctive relief must be based. (Public Employment Relations
Board v. Modesto City Schools District, supra, 136 Cal.App.3d
881.) In order to meet the reasonable cause standard, the Board
must determine that it is probable that a violation of the Act
has been committed. The requirement of reasonable cause is more
than the mere finding of a prima facie case, which is satisfied
by the charging party stating allegations which, if proven, would
constitute an unfair practice. After examining the unfair
practice charge allegations, and the intermittent nature of the
strike, the Board finds that the reasonable cause standard is
satisfied.9
Section 3543.6 states, in pertinent part:
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).
9In Compton Unified School District (1987) PERB Order
No. IR-50, a majority of the Board found that the strike which
caused a "total breakdown in education, and the lack of even
8

basic instruction" met the reasonable cause standard. However,
Compton does not preclude the Board from finding reasonable cause
exists under either a different theory or different facts.
REASONABLE CAUSE
In contrast to a strike of short duration, the present case
involves an intermittent strike, where the employees are
allegedly retaining the benefits of working and striking at the
same time. In the private sector, partial and intermittent work
stoppages have been consistently held to be unprotected. (First
National Bank of Omaha (1968) 171 NLRB 1145 [69 LRRM 1103],
enforced (8th Cir. 1969) 413 F.2d 921 [71 LRRM 3019].) In First
National Bank of Omaha, the court explained its rationale for
disfavoring partial and intermittent strikes.
Employees may protest and seek to change any
term or condition of their employment, and
their ultimate sanction is the strike. If
they choose to strike over hours of work,
their strike is no different in quality or
essence than is a strike over any other term
of employment. What may make such a work
stoppage unprotected is exactly what makes
any work stoppage unprotected, that is, the
refusal or failure of the employees to assume
the status of strikers, with its consequent
loss of pay and risk of being replaced.
Employees who choose to withhold their
services because of a dispute over scheduled
hours may properly be required to do so by
striking unequivocally. They may not
simultaneously walk off their jobs but retain
the benefits of working.
(Id. at p. 1151.)
In essence, the intermittent strike allows the employees to pick
and choose when they work, and be able to afford to strike
because of the economic benefit earned when not striking. In
Palos Verdes Peninsula Unified School District (1982) PERB

Decision No. 195, the Board held that a partial work stoppage or
slowdown was unprotected, and that an employer did not violate
EERA by disciplining employees for participation in unprotected
conduct. The Board reasoned employees may not pick and choose
the work they wish to do, and that accepting full pay for
services implies a willingness to provide full service.10
Thus, under PERB's case law, these strikes by the
Association are unprotected. The question that has yet to be
answered, however, is whether intermittent strikes are also
unlawful under EERA. Based on the inherent differences between
the public and private sectors, the Board finds that such post-
impasse intermittent strikes are both unprotected and unlawful
under the Act.11
In the private sector, when an economic strike occurs, the
employer is free to hire permanent replacements for the strikers,
10In San Ramon Valley Unified School District (1984) PERB
Order No. IR-46, the Board also discussed the issue of whether
partial and intermittent strikes are unlawful. However, due to
the unsettled state of the law, as well as the lack of evidence
in the record, the Board found that reasonable cause did not
exist to warrant injunctive relief. Consequently, the Board did
not reach the issue of the status of partial and intermittent
strikes.
11The California Supreme Court has noted that section 3549
of EERA does not prohibit strikes, but simply excludes the
application of Labor Code section 923's protection of concerted
activity. Thus, the Board has the authority and discretion to
determine whether a strike constitutes an unfair practice and
injunctive relief is warranted. (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, 573
citing San Diego Teachers Association v. Superior Court, supra,
24 Cal.3d 1, 13; see also, Cumero v. Public Employment Relations
Board (1989) 49 Cal.3d 575, 593, fn. 15.)
10

and may lawfully refuse a striker's request for reinstatement if
he or she has been permanently replaced by the time the strike is
ended. Unlike the private sector employer, the public sector
employer does not have the economic pressure devices available to
respond to an intermittent strike (i.e., lockout, discharge).
The public interest in education, which is mandated by the
California Constitution, and the employees' property rights in
their employment precludes the public employer from exerting
economic pressure by engaging in a lockout. (See American Ship
Building Co. v. NLRB (1965) 379 U.S. 814 [58 LRRM 2672] where the
court held that a private employer did not violate the National
Labor Relations Act when, after a bargaining impasse had been
reached, the employer temporarily shut down the plant and laid
off the employees for the sole purpose of bringing economic
pressure to support his legitimate bargaining position.)
Additionally, due to the nature of the intermittent strike, the
District is prevented from effectively maintaining the continuity
and quality of education by hiring long-term substitutes.
Therefore, the Board finds that intermittent strikes, by their
nature, violate the duty to bargain in good faith.
Although NLRB v. Insurance Agents' International Union
(1960) 361 U.S. 477 [45 LRRM 2704] is instructive on finding that
intermittent strikes are unprotected, the court does not address
the difference between public and private sector strikes, and the
highly divergent missions of private enterprise and public
11

education.12 Unlike the private sector, the public sector, by-
its nature, involves public interest. Under EERA, the public
interest is to maintain the continuity and quality of educational
services,13 and "to promote the improvement of personnel
management and employer-employee relations within the public
school systems in the State of California . . . ." (Gov. Code,
sec. 3540.) Due to this public interest, the Legislature enacted
a comprehensive statutory scheme in EERA to promote bargaining
while safeguarding basic education. (Gov. Code, secs. 3548 et
seq.) As recognized by the court in San Diego Teachers
12The court recognized the use of economic weapons in the
private sector:
The presence of economic weapons in reserve,
and their actual exercise on occasion by the
parties, is part and parcel of the system
that the Wagner and Taft-Hartley Acts have
recognized. 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.
However, in the public sector, the use of such counterbalancing
economic weapons (i.e., strike and strike vis-a-vis lockout) are
not available to the employer and employee organization.
13San Diego Teachers Association y. Superior Court. supra,
24 Cal.3d 1, 11.
12

Association v. Superior Court, supra, 24 Cal.3d 1, 8, the impasse
procedures were included in EERA for the purpose of heading off
strikes. Further, the Board has held that a strike occurring
before the parties have completed the statutory impasse
procedures creates a rebuttable presumption that the strike is an
unlawful pressure tactic constituting a refusal or failure to
meet and negotiate in good faith or participate in good faith in
the impasse procedures. (Fresno Unified School District (1982)
PERB Decision No. 208.)
The Legislature's interest, and the court's acknowledgement
of that interest, on reaching agreement in educational labor
disputes and the importance of a peaceful resolution of such
disputes does not end at the completion of the statutory impasse
procedures. To promote constructive employment relations and
minimize work stoppages, the Board has both the authority and
discretion to determine that the post-impasse intermittent strike
is an unlawful pressure tactic constituting a refusal or failure
to meet and negotiate in good faith. (San Diego Teachers
Association v. Superior Court, supra, 24 Cal.3d 1, 13.) Having
found reasonable cause exists that the Association has committed
an unfair practice, we next move to the second prong of the test;
the requirement that the injunctive relief is just and proper.
JUST AND PROPER
Notwithstanding a finding of reasonable cause to believe
that an unfair practice has been committed, the Board finds that
the District has failed to demonstrate that injunctive relief is
13

just and proper, (i.e., that the purposes of the Act would be
frustrated absent injunctive relief). As explained by the court:
Although injunctive relief is an
extraordinary remedy, it may be used whenever
either an employer or a union has committed
unfair labor practices which, under the
circumstances, would rendered any final order
of PERB meaningless. . . .
(Public Employment Relations Board v. Modesto
City Schools District, supra, 136 Cal.App.3d
881, 903.)
The parties must bear in mind that an injunction is an
extraordinary remedy. (Id. at p. 903.) Courts consistently
proceed only with great caution in exercising their powers, and
have required a clear showing that the threatened and impending
injury is great, and can be averted only by the injunction.
(Wilkins v. Oken (1958) 157 Cal.App.2d 603, 606.)
Relying on the Board's decision in Compton Unified School
District, supra, PERB Order No. IR-50, the District argues that
the disruptive effect of the strikes on the continuity and
quality of education constitutes a violation of EERA and must be
enjoined. In Compton, the majority of the Board found that the
work stoppages violated EERA and that the total breakdown in
education and negotiations constituted just and proper cause to
seek injunctive relief. Unlike the present case, Compton
involved a situation where the harm caused by the strikes could
not be adequately remedied by PERB absent injunctive relief. The
numerous declarations submitted by the District in its request
for injunctive relief fail to include sufficient facts based on
personal knowledge to demonstrate a total breakdown in either
14

education or negotiations. Many of the declarations contain
hearsay statements and statements based on information and
belief, as well as extraneous facts which are irrelevant to
PERB's determination of whether reasonable cause exists or
injunctive relief is just and proper. More importantly, the
declarations fail to include any facts indicating the effect, if
any, on negotiations. For these reasons, the Board concludes the
just and proper standard has not been satisfied.
ORDER
Based on the foregoing, the Fremont Unified School
District's request for injunctive relief is hereby DENIED. It is
hereby ORDERED that the General Counsel shall issue a complaint
in Unfair Practice Case No. SF-CO-380, alleging a violation of
section 3543.6(c) and (d).
Members Shank and Camilli joined in this Decision.
Member Cunningham's concurrence begins on page 16.
Member Craib's concurrence begins on page 22.
Some of the declarations contained information regarding
picket line misconduct. Indeed, pursuant to Code of Civil
Procedure section 527.3, the District sought and obtained a
superior court order limiting picket-line conduct.
15

Cunningham, Member, concurring: I agree with the majority
that the Fremont Unified School District (District) request for
injunctive relief must be denied under the circumstances outlined
below. However, I cannot, in good faith, subscribe to the
majority's insupportable legal analysis for the reasons that
follow.
Initially, I agree that the allegations contained in the
District's charge may constitute sufficient facts to state
a prima facie violation of section 3543.6(c) and (d) of the
Educational Employment Relations Act (EERA or Act).1 (San Ramon
Valley Unified School District (1984) PERB Order No. IR-46,
p. 13.)
On the contrary, however, I cannot concur with the
majority's conclusion that these facts satisfy the "reasonable
cause" prong of the standard enunciated in Public Employment
Relations Board v. Modesto City Schools District (1982)
136 Cal.App.3d 881, 896,2 and further clarified by the Public
Employment Relations Board (Board) in Compton Unified School
District (1987) PERB Order No. IR-50. Compton involved a
prolonged series of work stoppages, lasting from one to five
1See page 7 of majority opinion for text of the Act. The
District's second amended charge incorporates all allegations
contained in its original and first amended statement of the
charge.
2The superior court is required to grant the Board's request
for injunctive relief when two essential requirements have been
met: (1) reasonable cause exists to believe that an unfair
practice has been committed, and (2) injunctive relief is "just
and proper."
16

days each, for a total of 16 days, over a period of five
months. The district was only able to obtain substitutes for
approximately five percent of the striking teachers. Student
attendance was down approximately 70 percent on strike days,
and remained unusually low (40 percent) on nonstrike days,
throughout the entire five-month period. Consequently, the
Compton plurality found that a considerable number of the
district's students received little or no meaningful education
for the entire period during which teachers engaged in
intermittent work stoppages. Based upon these facts, the Compton
plurality determined that the work stoppages resulted in a "total
breakdown in education," satisfied the two-part test described
above, and constituted probable violations of EERA sections
3543.6(c) and 3540, thus warranting injunctive relief.
In the present case, the Fremont Unified District Teachers
Association (Association) engaged in three one-day work stoppages
over the course of two months. An adequate number of substitute
teachers was obtained by the District on strike days, as
evidenced by student/teacher ratios.3 Immediately following
each strike day, student attendance returned to normal levels.
The record evidence does indicate that the strike activity caused
some disruption to the educational process. Additionally, while
there apparently were some incidents of sabotage and vandalism,
3The student/teacher ratio on March 2, 1990, was
approximately 26:1. The student/teacher ratio on April 4
and April 19, 1990, was approximately 9:1.
17

which I certainly do not condone, there is no clear evidence
that these acts were perpetrated, encouraged or approved by the
Association. However, I find that these facts fail to evidence
a "total breakdown in education" consistent with the standard
established by the Compton Board.
The majority appears to drastically depart from the
Compton test by establishing a bright-line rule that three one-
day work stoppages within a two-month period not only constitute
unprotected employee activity, but further constitute a per se
violation of the Act. I find no legal authority for such a
proposition.
The majority primarily relies on Palos Verdes Peninsula
Unified School District (1982) PERB Decision No. 195 in support
of finding intermittent strikes to be unlawful. In Palos Verdes.
as the majority notes, the Board held that a partial work
stoppage or slowdown was unprotected: however, the Board did not
determine that such activity was unlawful within the scope of
EERA. Moreover, the facts in Palos Verdes involved a refusal by
several teachers to give written final examinations in accordance
with established District policy. Again, as the majority points
out, the Board reasoned employees may not pick and choose the
work they desire, and accepting full pay for services implies
a willingness to provide full service. In contrast to the
Palos Verdes factual scenario, in the instant case, the striking
Association members participated in three total work stoppages
18

and received no wages on the three occasions.4 Thus, the policy
concerns regarding work slowdowns expressed by the Palos Verdes
Board have no applicability to these facts. Furthermore,
although the facts involved in Palos Verdes were of a more
egregious nature pursuant to traditional labor principles,
the Board did not hold such conduct unlawful under EERA.
It is also noteworthy that, in San Ramon Valley Unified
School District, supra, PERB Order No. IR-46, the Board cited
the unsettled state of the law, as well as the lack of record
evidence, in finding that the "reasonable cause" prong of the
Modesto test was not met. There, employees engaged in five one-
day strikes, three of which occurred within a one-month period.
4The majority declares that the nature of the strike
activity herein allowed the teachers to be able to afford to go
on strike; however, I question the validity of this assumption
inasmuch as each striking teacher suffered the same economic
loss as he/she would have had he/she gone on strike for three
consecutive days.
5The majority cites First National Bank of Omaha (1968)
171 NLRB 1145 [69 LRRM 1103], enforced (8th Cir. 1969) 413 F.2d
921 [71 LRRM 3019] for the proposition that partial and
intermittent work stoppages are unprotected. The court in
First National Bank of Omaha states:
What may make such a work stoppage
unprotected is exactly what makes any work
stoppage unprotected, that is, the refusal or
failure of the employees to assume the status
of strikers, with its consequent loss of pay
. . . . [Employees] may not simultaneously
walk off their jobs but retain the benefits
of work. . . . [Emphasis added.]
It is this refusal by employees to assume the status of
strikers that is the central issue in the determination of what
constitutes protected activity under federal law.
19

The Board was not willing, however, to find that such a level
of strike activity provided "reasonable cause" to believe that
an unfair practice had been committed. Thus, the majority's
determination, in this instance, that the "inherent nature" of
the strike activity involved herein constitutes a violation of
EERA is clearly without precedent or support.6
I agree with the majority that the Act expresses a public
interest in the continuity and quality of educational services,
as well as the improvement of employer-employee relations in
California schools. The majority's reasonable cause finding is
premised upon a hypothetical set of factual assumptions, that:
(1) the educational process is totally disrupted by an
intermittent strike; and (2) an intermittent strike significantly
affects the bargaining process. As the majority clearly states,
however, these assumptions are simply not supported by the facts
of this case. At pages 13-14 of the majority opinion, it is
stated:
The numerous declarations submitted by the
District in its request for injunctive relief
fail to include sufficient facts based on
personal knowledge to demonstrate a total
breakdown in either education or
negotiations."
6Despite the majority's characterization of the strike
activity involved in this case, it should be noted that, in
the concurring opinion in Compton, the author emphasized that
the approach was "premised on the harm caused by the strike,
regardless of whether it is intermittent in nature or not."
This analysis appears inconsistent with the majority's legal
conclusion in the instant case.
20

In fact, as the majority admits, also at page 14, " . . . the
declarations fail to include any facts indicating the effect, if
any, on negotiations." (Emphasis added.) How can the majority
find reasonable cause to believe, in all probability, that an
unfair practice has been committed,7 when the record admittedly
fails to support the factual assumptions underlying the
majority's conclusion?
Finally, inasmuch as I find that the District has failed
to establish that "reasonable cause" exists to believe that an
unfair practice has been committed in this instance, there is no
need to address the "just and proper" prong of the Modesto test.
7In order to meet the reasonable cause standard, the Board
must determine that it is probable that a violation of the Act
has been committed. (Majority Opinion at p. 7.)
21

Craib, Member, concurring: I concur that the Fremont
Unified School District's (District) request for injunctive
relief must be denied. However, unlike the majority, I would
hold that the intermittent strike activity provides no basis for
finding reasonable cause to believe that an unfair practice has
been committed. Specifically, I disagree that intermittent
strikes are unlawful under the Educational Employment Relations
Act (EERA).
My position on the legal status of intermittent strikes
which take place after the exhaustion of statutory impasse
procedures is fully set forth in my dissent in Compton Unified
School District (1987) PERB Order No. IR-50, and will not be
recounted here. In that opinion, I explained that, while I view
all intermittent strikes to be unprotected, there is no basis in
either the language of EERA or in accepted labor law principles
for finding such work stoppages to be unlawful.
In the present case, the majority correctly cites both
Public Employment Relations Board (Board) and private sector
precedent for the proposition that intermittent strikes, as well
as partial strikes and slowdowns, are unprotected. However, the
majority then takes a huge analytical leap and declares that
intermittent strikes under EERA are both unprotected and
unlawful. Purportedly, this leap is justified by the "inherent
differences between the public and private sectors." What those
differences are and, more importantly, how they affect the
22

collective bargaining process created by the Legislature is left
unclear.
As stated in section 3540,1 the Legislature created EERA in
order to improve labor relations in the public school system. As
the Supreme Court of California has noted, in determining whether
to seek injunctive relief, the Board may appropriately consider
the effect of the conduct at issue upon the continuity and
quality of educational services. (San Diego Teachers Association
v. Superior Court of San Diego County (1979) 24 Ca.3d 1, 11.)
The majority relies strongly on this statement by the court, but
misconstrues it in several ways.
First, the majority fails to recognize that the effect on
educational services is an appropriate consideration in
determining if injunctive relief is just and proper, but this
inquiry is relevant only after first determining that the alleged
conduct violates a provision of EERA. Instead, the majority
confuses the two prongs of the standard for seeking injunctive
1EERA section 3540 states, in pertinent part:
It is the purpose of this chapter 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 relationships
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.
23

relief by relying on hypothetical interference with the
continuity and quality of education to conclude that there is
reasonable cause to believe that an unfair practice has been
committed.
As I explained in my dissenting opinion in Compton Unified
School District, supra, PERB Order No. IR-50, there is no
statutory basis for finding intermittent strikes to be unlawful.
Thus, the majority has nothing to rely on but its own public
policy predilections unartfully disguised as legal analysis. As
I also explained in Compton, since EERA provides no basis for
outlawing strikes occurring after the exhaustion of impasse
procedures, if such a result is warranted, it is properly the
role of the Legislature to amend the statute. Notwithstanding
the majority's incantations, the EERA, as presently written, does
not give the Board such authority. Moreover, as I also explained
in Compton, the fact that the Board has no jurisdiction over
particular strike activity does not leave the public school
employer without recourse. The employer is free to go to court
to seek relief under the common law based on the remaining
prohibitions (or an expansion thereof) set out in County
Sanitation District No. 2 of Los Angeles v. Los Angeles County
Employees Association. Local 660. SEIU. AFL-CIO (1985) 38 Cal.3d
564.
A second major flaw in the majority opinion is its failure
to point to any evidence that intermittent strikes have an
inordinately adverse effect upon either the bargaining process or
24

upon the provision of educational services that would warrant
singling out such conduct for prohibition. The majority relies
solely on the bald assertions that the public school employer is
unable to respond with its own economic pressure devices and that
intermittent strikes prevent the maintenance of the continuity
and quality of education.
It is true that lockouts are impractical in the public
schools; however, the majority's assumption that disciplinary
action is also precluded is not correct. The employer may have
more procedural hoops to jump through, but discipline,
particularly short of dismissal, is a viable option. More
importantly, the majority ignores certain differences in the
public sector that undermine its position. The majority asserts
that intermittent strikes should be unlawful because the employer
has no countervailing economic pressure devices. This ignores
the fact that, in the public sector, a strike does not normally
cause any economic hardship for the employer. Revenues are
generally fixed and, with the exception of monies based on
attendance (which are usually offset by salary savings due to the
strike), do not change due to the absence of striking teachers.
Thus, the need for countervailing economic weapons is lessened.
The majority also ignores two substantial limiting factors
upon the frequency and duration of public employee strikes that
further undermine its implicit assumption that intermittent
strikes provide an unfair advantage to the employees. First,
since the employer normally suffers no net economic loss, but the
25

striking employees do, this naturally limits the employees'
willingness to strike for any significant number of days. The
majority's statement (at p. 9) that an intermittent strike allows
employees to "afford to strike because of the economic benefit
earned when not striking" ignores the economic reality that faces
most public school employees. For those who must live from
paycheck to paycheck, any strike, whether full or intermittent,
represents a substantial financial sacrifice. Few can afford to
engage in an intermittent strike for any substantial length of
time.
Another natural limiting factor on public employee strikes
is public pressure. Unlike the private sector, where the public
may only have peripheral concerns about a labor dispute, in the
public sector the public stake is much higher. Consequently,
both sides feel tremendous pressure to settle their labor
disputes. A strike of significant length, whether for a
continuous period or intermittent, will rarely enjoy the level of
public support that is critical for its success as a pressure
tactic. Therefore, the intermittent strike is not the all-
powerful weapon that the majority apparently assumes that it is.
The majority's assertion that intermittent strikes prevent
the effective maintenance of educational services is belied by
the record in this case, which, ironically, the majority so ably
describes in finding that injunctive relief is not just and
proper in this case. As the majority notes, the declarations
provided by the District do not reflect a substantial breakdown
26

in the educational process nor any adverse effect upon
negotiations. The declarations and exhibits also reveal that a
more than adequate number of substitute teachers were secured for
each strike day. Thus, the majority claims that intermittent
strikes are unlawful because they inherently have an adverse
effect that, nevertheless, the majority finds was not shown here.
Such a holding is, of course, internally inconsistent.
In sum, the majority has failed to provide a convincing
legal analysis for its radical departure from existing law.
Instead, the majority relies on unfounded proclamations as to the
inherent nature of intermittent strikes that are not supported by
either cogent theory or by the record in the present case. I
continue to believe that EERA provides no basis for finding
intermittent strikes to be unlawful, and the analysis put forth
by the majority serves only to confirm that belief. I must,
therefore, disagree with the majority's holding that the
intermittent strike activity provides reasonable cause to believe
that an unfair practice has been committed.
27