El Dorado Union High School District (PERB 0537EA)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

EL DORADO UNION HIGH SCHOOL DISTRICT. )
Charging Party. ) Case No. S-CO-117
Vv. ) Request for Reconsideration
) PERB Decision No. 537
EL DORADO UNION HIGH SCHOOL DISTRICT )
FACULTY ASSOCIATION, CTA/NEA, ) PERB Decision No. 537a

Respondent. ) February 3, 1986

Appearances; Girard & Griffin by Thomas M. Griffin for the

El Dorado Union High School District; Diane Ross, attorney for
the El Dorado Union High School District Faculty Association,
CTA/NEA.

Before Hesse, Chairperson; Jaeger and Burt, Members.
DECISION

JAEGER, Member: The El Dorado Union High School District
Faculty Association, CTA/NEA (Association) requests
reconsideration of Decision No. 537 issued by the Public
Employment Relations Board (PERB or Board) on December 2, 1985.
The request is based on the contention that the Board committed
an error of law in Decision No. 537 in holding (inter alia)
that the Association and its members violated section 3543.6 (c)
of the Educational Employment Relations Act (EERA or Act)? by

refusing to report to the required worksite for the first 30

“EERA is codified at Government Code section 3540
et seq. Unless otherwise indicated, all statutory references
herein are to the Government Code. Section 3543.6(c) provides
that it is unlawful for an employee organization to fail to
negotiate in good faith.

minutes 	of 	the workday on October 	8, 	1984, 	thereby engaging 	in
a 	partial 	strike 	prior 	to 	the 	exhaustion of 	impasse 	procedures
set 	forth 	in EERA section 	3548.
The 	Board 	has 	reviewed 	the Association's 	arguments 	in 	light
of 	its Decision No. 	537 	and grants 	reconsideration. 	Except 	to
the 	extent modified 	hereafter, 	the Board's 	findings 	of 	fact 	and
conclusions 	of 	law set forth 	in 	its Decision No. 	537 	are
incorporated 	herein.
DISCUSSION
The 	Association's 	request 	rests 	on decisions 	issued 	by the
United 	States 	Supreme 	Court 	and 	various 	federal 	courts 	holding
that 	unprotected work 	stoppages 	do 	not 	necessarily 	constitute
unlawful 	refusals 	to 	bargain.2 The 	difficulty 	the Board
finds 	in 	the Association's 	arguments 	and 	case 	citations 	is
their 	failure 	to 	take 	into 	account 	substantial 	distinctions
between EERA and 	the National 	Labor Relations Act. 	and
decisions 	of 	the 	California 	Supreme 	Court 	and 	one District
Court which 	bear 	directly on 	the 	issue 	at 	hand.
In 	San Diego 	Teachers 	Association v. 	Superior 	Court 	(1979)
24 Cal.3d 1 	[154 Cal. Rptr. 	893], 	the Court noted EERA's
2 E.g.: 	NLRB v. 	Insurance Agents 	International Union
(1960)
361 U.S. 	477 	[45 LRRM 2704]; 	Textile Workers Union of America v.
NLRB 	(1955) 	227 F.2d 409 	[36 LRRM 2778].
22

inclusion of 	statutory 	impasse 	procedures, 	not 	present 	in 	the
NLRA, 	and 	the 	related 	provision 	at 	section 	3543.6 	that
It 	shall 	be unlawful 	for 	an 	employee
organization to:
(d) 	Refuse 	to 	participate 	in good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in Article 	9
(commencing with section 3548).
The 	Court 	stated:
An unfair 	practice 	consisting 	of 	"refus[al]
to 	participate 	in good 	faith 	in 	the 	impasse
procedure" 	(sec. 	3543.6(d)) 	could be
evidenced 	by a 	strike 	that was 	otherwise
legal.
Since 	they 	[impasse 	procedures] 	assume
deferment 	of 	a 	strike 	at 	least until 	their
completion, 	strikes 	before 	then can properly
be 	found 	to 	be a 	refusal 	to 	participate 	in
the 	impasse 	procedures 	in good 	faith 	and
thus 	an unfair 	practice under
section 3543.6. 	subdivision (d).
Although 	the 	Court 	did 	not 	expressly find 	strikes 	prior 	to
the 	exhaustion of 	the 	statutory procedures 	to violate 	the Act,
the Board 	has 	found 	in the 	Court's 	analysis 	a 	convincing
argument, 	barring extenuating circumstances, 	for 	such
holdings. w3
In 	its Decision No. 	537. 	the Board concluded 	that 	the
Association's 	partial work 	stoppage violated 	section 	3543.6(c).
In so doing, 	it made no 	reference 	to Moreno Valley Unified
3 See. 	Rio Hondo Community College District 	(1983) 	PERB
Decision No. 	292; 	Westminister School District 	(1982) 	PERB
Decision No. 	277.
33

School District v. 	PERB 	(1983) 	142 Cal.3d 	191. 	There, 	the
District 	Court 	expressly 	found 	that 	the 	employer's 	unilateral
changes 	of 	matters 	subject 	to 	negotiation after 	the 	parties 	had
declared 	impasse 	but 	before 	the 	exhaustion of 	the 	statutory
procedures, 	did not violate section 3543.5(c).4 The Court
interpreted 	section 	3548 	to 	mean 	that 	the District's 	duty 	to
bargain 	in 	good 	faith 	terminated 	when 	the 	parties 	declared
impasse. 	However, 	the District was 	found 	to have violated 	its
duty 	to 	participate 	in good 	faith 	in 	the 	statutory 	impasse
55	procedures.5
Consequently, 	the Board 	now dismisses 	the 	charge 	that, 	by
refusing 	to 	report 	to 	the 	school 	premises 	until 	8:30 	a.m., 	the
Association violated 	section 	3543.6(c) 	and 	finds 	instead 	that
this 	partial 	work 	stoppage 	prior 	to 	the 	exhaustion of 	the
impasse 	procedures violated 	section 3543.6(d). 	For 	the 	same
reasons, 	we 	reinstate 	the 	administrative 	law 	judge's 	finding
that 	the Association violated 	section 	3543.6(d) 	by 	its
post-impasse 	boycott 	of 	required 	extra-curricular 	duties.
ORDER
Based 	on the 	entire 	record 	in 	this 	case, 	including 	the
request 	for 	reconsideration of Decision No. 	537 	filed 	by the
El 	Dorado 	Union High 	School 	District 	Faculty Association,
4 This 	section makes 	it unlawful 	for 	an employer 	to 	refuse
to 	negotiate 	in good 	faith.
5 Section 3543.5(d) 	is 	the employer 	equivalent 	of
section 3543.6(d).
4

CTA/NEA, 	the Public Employment Relations 	Board ORDERS 	that 	the
Association and 	its members 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Violating section 3543.6(c) 	of 	the Educational
Employment Relations Act 	by 	instigating, 	encouraging or 	engaging
in an employee 	boycott 	of 	required 	extra-curricular 	duties while
under 	an 	obligation 	of 	law to 	negotiate 	in good 	faith with 	the
El Dorado Union High School District; 	and
2. 	Violating section 3543.6(d) 	of 	the Educational
Employment Relations Act 	by 	instigating, 	encouraging 	or 	engaging
in: 	1) 	an employee 	boycott 	of 	required 	extra-curricular 	duties
or; 	2) 	a 	concerted 	refusal 	to 	report 	to 	the El Dorado High
School 	premises 	during any part 	of 	the 	required workday, 	thereby
engaging 	in a 	partial 	strike while under 	an obligation of 	law to
participate 	in good 	faith 	in 	impasse 	procedures 	with 	the
El 	Dorado Union High School 	District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF 	THE 	EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	Within thirty-five 	(35) 	days 	following the date 	of 	this
Decision, 	post 	at 	all work 	locations where Association notices
to 	employees 	customarily are placed, 	copies 	of 	the Notice
attached 	as 	an Appendix 	hereto, 	signed 	by an authorized 	agent
of 	the Association. 	Such posting 	shall 	be maintained 	for 	a
period 	of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure 	that 	this Notice 	is 	not 	reduced 	in
size, 	defaced, 	altered or 	covered 	by any material.
s

2. 	Written notification of 	the 	actions 	taken 	to 	comply
with 	this Order 	shall 	be made 	to 	the 	regional 	director 	of 	the
Public 	Employment 	Relations 	Board 	in 	accordance with 	his
instructions.
Member 	Burt 	joined 	in 	this 	Decision.
Chairperson Hesse's 	concurrence 	begins 	on page 	7
6

Hesse, Chairperson: I reiterate and incorporate my

concurrence in Decision No. 537 herein.

APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After 	a 	hearing 	in Unfair 	Practice Case No. 	S-CO-117.
El 	Dorado Union High School District v. 	El 	Dorado Union High
School District Faculty Association. 	CTA/NEA, 	in which all
parties 	had 	the opportunity to 	participate, 	it has 	been found
that 	the El 	Dorado Union High 	School 	District Faculty
Association and 	its 	members 	violated 	section 3543.6(c) 	of 	the
Educational 	Employment 	Relations 	Act 	by 	boycotting 	required
extra-curricular 	duties 	during 	a 	time when 	the Association 	had
an 	obligation 	to 	negotiate 	in good 	faith with 	the El 	Dorado
Union High School District. 	It 	has 	also 	been found 	that 	the
Association and 	its 	members 	violated 	section 3543.6(d) 	by the
same 	conduct, 	and 	by refusing 	to 	report 	to 	the El Dorado Union
High 	School 	premises 	during 	the 	period 	from 	8:00 	a.m 	to 	8:30
a.m. 	on October 	8. 	1984, 	during a 	time when the Association
had 	an 	obligation 	to 	participate 	in good 	faith 	in 	impasse
procedures with the District. 	As 	a 	result of 	this 	conduct, 	we
have 	been 	ordered 	to 	post 	this 	Notice 	and will 	abide 	by 	the
following. 	We will:
CEASE AND DESIST FROM:
A. 	Failing 	to 	participate 	in 	impasse 	procedures 	in good
faith with 	the El 	Dorado Union High School 	District 	by
refusing 	to 	report 	to 	school 	premises 	during 	the 	period 	from
8:00 	a.m. 	to 	8:30 	a.m. 	as 	required 	by the 	parties' 	contract;
B. 	Instigating, 	encouraging, 	or engaging in a boycott of
required 	extra-curricular 	duties.
Dated: 	EL 	DORADO UNION HIGH 	SCHOOL
DISTRICT 	FACULTY 	ASSOCIATION
By: Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT
LEAST THIRTY 	(30) 	CONSECUTIVE WORKDAYS FROM THE DATE OF
POSTING AND MUST NOT BE REDUCED IN SIZE, 	DEFACED. 	ALTERED OR
COVERED BY ANY MATERIAL.
• .	
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