Rim of the World Unified School District (Corcoran) (PERB A161E)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
RIM 	OF 	THE WORLD 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
RIM 	OF 	THE WORLD 	UNIFIED 	SCHOOL
DISTRICT,
Respondent,
and
DANIEL M. 	CORCORAN,
Intervenor.
Case No. 	LA-CE-2169
Interlocutory Appeal
PERB Order No. Ad-161
December 31, 1986
Appearances; 	Charles 	R. 	Gustafson 	for 	Rim of 	the World
Teachers 	Association, 	CTA/NEA; 	Lawson 	and Hartnell 	by
Raymond N. 	Haynes 	for 	Intervenor 	Daniel 	M. 	Corcoran.
Before Morgenstern, 	Burt and Craib, 	Members.
DECISION
BURT, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or 	Board) 	on an 	interlocutory appeal
filed by 	Rim 	of 	the 	World 	Teachers 	Association, 	CTA/NEA
(Association) 	and 	certified 	to 	the 	Board by an 	administrative
law 	judge 	(ALJ). 	The Association 	charged 	that 	Rim of 	the World
Unified 	School 	District 	(District) 	engaged 	in an 	unlawful
reprisal 	when 	the president of 	its board, 	Daniel 	Corcoran,1 1
threatened 	to and 	then 	did 	file 	a 	libel 	action 	in 	Superior
1Corcoran's 	motion 	to 	intervene 	in 	the 	case 	was 	granted
by the ALJ, 	see 	infra. 	Corcoran will 	be 	referred 	to 	in 	this
decision 	by name, 	rather 	than by the 	term 	"Intervenor."
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Court 	against 	the 	Association's 	president 	and 	chief 	negotiator,
James Gutman, 	for 	statements Gutman made 	in 	an Association
newsletter 	during 	contract 	negotiations. 	After 	an 	evidentiary
hearing on 	the 	charge, 	the ALJ granted 	Corcoran's 	motion 	to
stay 	further 	proceedings 	by PERB, 	pending 	resolution 	of 	the
libel 	action. 	We hold 	that 	the 	Superior 	Court has 	concurrent
jurisdiction 	over 	the 	dispute 	and affirm 	the ALJ's 	decision 	to
stay.
FACTUAL AND 	PROCEDURAL 	HISTORY
The 	District 	and 	the Association 	met 	in 	scheduled
negotiations 	on April 	3, 	1985.2 During the 	session, 	the
Association 	called a 	caucus. 	Gutman 	testified 	at 	the hearing
before 	the ALJ 	that, 	when he 	and 	the other Association
representatives 	returned 	from 	the 	caucus 	to 	the 	meeting 	room,
he 	saw 	Corcoran 	standing 	about 	a 	foot 	away 	from 	the 	bargaining
table, 	on 	the Association's 	side. 	According to Gutman,
Corcoran's 	head 	was 	down 	and he 	appeared 	to be 	looking 	at
materials 	on 	the 	table 	that belonged 	to 	an 	Association 	team
member, 	Hal 	Chapman. 	Gutman 	said 	that he 	then 	saw Corcoran
look 	up 	and 	walk 	quickly back 	to 	the 	District's 	side 	of 	the
table. 	Gutman 	admitted 	that 	Chapman 	told him 	that he 	(Chapman)
did 	not 	see 	Corcoran 	on 	the Association's 	side 	of 	the 	table 	as
Chapman 	entered 	the 	room 	immediately behind 	Gutman.
Two 	days 	after 	the bargaining 	session, 	the Association's
newsletter 	North Wind was 	distributed 	to 	its 	members. 	A
2A11 	dates 	are 	1985, 	unless 	otherwise 	indicated.
2

front-page 	story on 	the bargaining 	session 	contained 	the
sentence: 	"School 	Board 	President 	caught 	reading 	our 	notes
during a 	caucus." 	Gutman 	testified 	that he 	wrote 	the 	story
including 	the 	above-quoted 	statement, 	and believed 	it 	to be
true 	based on his 	own 	observations.
Corcoran's 	testimony 	contradicted 	Gutman's 	and 	was
corroborated by 	that 	of 	two other 	witnesses, 	members 	of 	the
District 	team 	who were present 	at 	the 	session. 	Corcoran
testified 	that 	when Gutman 	entered 	the 	room, 	he 	(Corcoran) 	was
seated with his 	feet 	up on 	the 	table, 	some 	six 	to eight 	feet
away 	from 	the 	place 	at 	the 	table 	where 	the 	nearest 	Association
materials 	were 	located. 	He 	said 	that 	when 	Gutman 	entered, 	he
got 	up 	and walked 	around 	the 	table 	in 	order 	to 	return 	to 	the
seat 	where he had been before 	the 	caucus. 	However, 	referring
to a 	diagram of 	the 	table, 	he 	testified 	that he 	did 	not walk
past 	any of 	the 	Association 	team's 	seats 	in 	order 	to 	return 	to
his 	own. 	Corcoran 	testified 	that he 	did 	not 	read 	any
Association 	materials 	that 	were 	not 	given 	to him.
Gutman 	admitted 	in 	testimony 	that 	the 	only Association
materials 	which 	remained 	at 	Chapman's 	place 	at 	the 	table 	during
the 	caucus 	were 	the 	District's 	two-page bargaining protocols
that 	had 	been 	distributed 	to 	the 	Association 	earlier 	that 	day,
and 	a 	set 	of 	salary 	comparison 	figures 	for 	area 	schools 	that
the 	Association had 	taken 	from 	a 	newspaper 	article 	and
distributed 	to 	the 	District 	negotiators 	shortly 	after 	the
caucus. 	Asked 	about his 	newsletter 	reference 	to Association
"notes," 	Gutman 	said he believed but was 	"not 	sure" 	that 	there
3

were 	"some" handwritten notes on 	the protocols. 	In any event,
since 	the 	materials 	he 	thought 	he 	saw 	Corcoran 	reading 	were
Chapman's, 	any notes 	on 	them would not have been his 	own.
Corcoran 	is 	a 	realtor, 	many of whose 	clients 	are 	teachers;
he has 	also 	run 	for 	political 	office. 	He 	testified 	that he
believed 	Gutman's 	newsletter 	statement 	libeled him 	because 	it
accused him of 	committing 	a 	dishonest 	act 	in 	a 	public 	forum.
On 	April 	16, 	Corcoran's 	privately-retained 	attorney 	sent 	Gutman
a 	letter 	demanding a 	retraction of 	the 	statement, 	advising
Gutman 	that 	failure 	to do 	so would 	lead 	to 	"appropriate 	further
action" 	and 	urging Gutman 	to 	seek an 	attorney's 	advice. 	In
response, 	Gutman 	issued 	a 	retraction 	in 	the April 	18 	issue of
North Wind, 	which read, 	in part:
Our April 	13, 	1985 	article 	said Mr. 	Corcoran
was 	reading our 	notes. 	For 	this 	I
apologize. 	I do not know that he was
reading, 	or 	that he 	can 	read. 	The 	only 	fact
I 	can 	report 	is 	that he was 	on 	our 	side 	of
the 	table, 	head down, 	eyes directed at our
material. 	I apologize 	for 	saying that he
was 	reading.
On April 	24, 	Corcoran's 	lawyer 	filed a 	complaint 	for damages
for 	libel 	against 	Gutman 	and 	Does 	1 	through 	50 	in 	Superior
Court, 	County of 	San 	Bernardino.
In 	response 	to Corcoran's 	lawsuit against Gutman, 	the
Association 	filed 	an 	unfair 	practice 	charge 	against 	the
District 	on May 	3; 	a 	complaint 	issued on 	July 	22. 	On
September 	25, 	the 	first day of the hearing, 	Corcoran moved 	to
intervene 	as 	a 	party and 	the motion 	was 	granted. 	Corcoran 	then
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moved 	to 	stay 	the 	PERB proceeding, 	but 	that 	motion 	was 	denied.
Corcoran 	then 	moved 	for 	a brief 	continuance 	of 	the 	PERB
hearing 	in 	order 	to 	seek 	a 	writ 	of 	prohibition 	from 	the
Superior 	Court 	to prevent 	the 	ALJ 	from 	going 	forward 	with 	the
taking of 	evidence. 	All 	parties agreed 	to, 	and 	the ALJ
granted, 	a 	30-day continuance 	for 	that purpose. 	At 	a 	status
conference 	on 	October 	8, 	the 	Superior 	Court 	ordered a 	stay 	in
the 	libel 	proceeding 	to permit 	PERB 	to act 	on 	the 	charge. 	The
court 	said 	that 	if 	PERB 	did 	not 	resolve 	the matter by
December 	1, 	the 	stay would be 	automatically 	lifted 	and 	the
matter 	would 	proceed.
The 	PERB hearing 	reconvened on October 	24 and 	25, 	1985.
The Association, 	the 	District 	and 	Corcoran were 	each 	allowed 	to
present 	evidence 	and 	call 	witnesses 	and 	cross-examine 	them.
The 	principal 	witnesses 	were 	Gutman 	for 	the Association 	and
Corcoran 	for 	the 	District. 	After 	all 	of 	the 	evidence 	was
presented, 	Corcoran 	again 	moved 	to 	stay 	the 	PERB proceeding
until 	the 	libel 	suit was 	resolved, 	relying on 	the 	U.S. 	Supreme
Court's 	decision 	in 	Bill 	Johnson's 	Restaurants 	v. 	National
Labor Relations Board 	(1983) 	461 	U.S 	731 	[113 LRRM 2647].
The 	ALJ granted 	the motion, 	finding 	that a 	genuine 	issue 	of
material 	fact 	regarding 	the 	events 	of 	the 	April 	3 bargaining
session 	was presented by 	the 	evidence 	and, 	therefore, 	that
Bill 	Johnson's 	required 	that he 	not 	proceed 	further 	(i.e.,
issue a 	proposed decision) 	until 	the 	libel 	suit was 	resolved.
On 	November 	19 	the 	Association 	requested 	that 	the 	ALJ 	certify
55

to 	the 	Board 	an 	interlocutory appeal 	of 	the 	stay order. 	The
ALJ granted 	the 	request 	on 	November 	20, 	and 	that 	appeal 	is 	now
before 	the 	Board.
On 	November 	26, 	the Association 	filed a 	request 	for
injunctive 	relief, 	seeking 	to have 	the 	Board either 	(1) 	order
the 	District 	and 	Corcoran 	to withdraw 	the 	libel 	suit 	filed by
Corcoran, 	or 	(2) 	seek 	injunctive 	relief 	from a 	court 	to the
same 	effect. 	On 	December 	18 	the 	Board 	denied 	that 	request.
There 	is 	no 	information 	in 	the 	record 	about 	the 	current 	status
of 	the 	libel 	action.
DISCUSSION3
Jurisdiction
On 	appeal, 	the 	Association 	argues 	that 	PERB has 	exclusive
jurisdiction 	over 	unfair practices 	and, 	for 	that 	reason, 	should
3The 	Board 	reaches 	the 	merits 	of 	this 	interlocutory
appeal 	over 	Corcoran's 	unsupported, 	almost 	offhand 	assertions
that 	the 	Association's 	request 	for 	a 	Board 	ruling 	on 	the 	ALJ's
decision 	to 	grant a 	stay was 	not 	filed at 	PERB headquarters 	and
was 	not 	timely 	filed 	as 	required by PERB 	Regulation 	32360.
Corcoran's 	reliance 	on 	that 	section 	is 	misplaced. 	PERB
Regulation 	32200 	(codified 	at 	California 	Administrative 	Code,
Title 	8, 	section 	31001 	et 	seq.) 	governs 	interlocutory appeals
of 	Board 	agent 	decisions 	to 	the 	Board 	itself. 	Regulation 	32200
provides 	that 	an 	interlocutory appeal 	may be 	taken 	only when
joined by 	the 	Board 	agent 	and 	that 	the 	party 	seeking 	such 	an
appeal 	must 	make 	a 	written 	request 	to 	the 	Board 	agent 	that he
so 	join. 	The 	section prescribes 	no time 	limits 	for 	the 	making
of 	such 	a 	request. 	The 	record 	reflects 	that on 	November 	19,
1985, 	shortly after 	the 	conclusion 	of 	the 	evidentiary hearing,
the 	Association 	filed with 	the ALJ a 	request 	for 	Board 	ruling
on 	the ALJ's 	decision 	to grant 	a 	stay. 	On 	November 	20, 	the ALJ
certified an 	interlocutory appeal 	of his 	decision 	to 	the 	Board.
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7
not 	stay 	its processes pending 	the 	civil 	litigation. 	The
Association 	cites 	California 	cases 	holding 	that 	PERB has
exclusive 	initial 	jurisdiction 	over 	disputes 	in which 	the
conduct 	involved 	is 	arguably protected 	or 	prohibited 	by 	the
laws 	that 	PERB administers. 	For 	the 	reasons 	that 	follow, 	the
Board 	concludes 	that 	it has 	concurrent 	jurisdiction 	with 	the
Superior 	Court 	over 	the 	conduct 	involved 	in 	the 	present 	case.
No 	California 	court 	or 	PERB 	decision4 directly 	addresses
whether 	PERB has 	exclusive 	jurisdiction, 	thus 	preempting 	the
Superior 	Court's 	jurisdiction 	over 	a 	libel 	action 	arising 	out
of 	the 	same 	facts 	as 	the 	complaint before 	PERB. 	For 	that
reason, 	the Board 	turns 	first 	to 	federal 	case 	law construing
the National Labor Relations Act 	(NLRA). 	5	5	
UT
When 	the 	activity of 	an 	employer 	or 	employee 	that 	a 	state
purports 	to 	regulate 	is 	arguably protected by or 	prohibited by
the NLRA, 	the 	state must defer 	to 	the 	exclusive 	(or
4The 	Association 	incorrectly 	cites 	State 	of 	California
(Department of 	Transportation) 	(1983) 	PERB Decision No. 	304-S
and 	Pittsburg 	Unified 	School 	District 	(1978) 	PERB 	Decision
No. 	47 	for 	the 	proposition 	that PERB has 	previously assumed
exclusive 	jurisdiction 	in 	the 	circumstances 	presented here.
Although 	both 	cases 	involved 	employer 	response 	to 	an 	employee
leaflet, 	and both 	decisions 	discussed 	the 	standard 	for
protected 	speech 	in 	the 	labor 	relations 	context, 	in neither
case had 	a 	civil 	libel 	action been 	filed 	nor was 	there 	any
other 	proceeding 	then 	pending.
5King 	City High 	School 	District Assn., 	CTA/NEA, 	et al.,
(1982) 	PERB Decision No. 	197; 	see San 	Diego Teachers
Association v. 	Superior Court 	(1979) 	24 Cal.3d 	1, 	12-13 	[154
Cal.Rptr. 893].
7

"preemptive") 	jurisdiction of 	the 	National 	Labor 	Relations
Board 	(NLRB) 	"if 	the 	danger 	of 	state 	interference 	with 	national
policy 	is 	to be 	averted." 	San 	Diego Building 	Trades 	Council 	v.
Garmon 	(1953) 	359 U.S. 	236, 	245 	[43 LRRM 2838]. 	However, 	the
preemption 	doctrine 	does 	not 	apply 	to 	activity 	that 	is
otherwise 	within 	the 	scope 	of 	the 	NLRA if the 	activity 	is 	of
"peripheral 	concern" 	to 	the 	NRLA or 	"touche[s] 	interests 	so
deeply 	rooted 	in 	local 	feeling and 	responsibility" 	that, 	absent
"compelling 	congressional 	direction," 	it 	could 	not be 	inferred
that 	Congress 	intended 	to deprive 	the 	states 	of power 	to act.
Id., at 243-244.
Thus, 	in Linn v. 	Plant Guard Workers 	(1966) 	383 U.S. 	53 	[61
LRRM 	2345], 	the 	Supreme 	Court held 	that 	a 	federal 	court had
jurisdiction 	over 	and 	could 	apply 	state 	libel 	law 	to 	allegedly
false 	and 	defamatory 	statements 	about managers, 	made 	in 	a
leaflet 	distributed 	by a 	union 	during 	an 	organizing 	campaign.
Noting 	that 	the 	activity was 	arguably 	protected 	under 	the 	NLRA,
the 	court 	held 	that 	such 	a 	lawsuit 	would 	not 	interfere 	with 	the
federal 	interest 	in permitting 	the 	free, 	and even heated,
exchange 	of 	ideas 	during 	labor 	disputes 	so 	long as 	the 	standard
of 	proof 	for 	defamation 	under 	state 	law 	required 	that
statements 	be 	knowingly 	false 	or 	made 	with 	reckless 	disregard
of 	their 	truth 	or 	falsity. 	The 	court 	found 	that 	allowing 	state
libel 	law 	to be 	applied 	to 	the 	statements 	was 	"merely 	[a]
peripheral 	concern" 	of 	federal 	labor 	law, 	and 	that 	an
"'overriding 	state 	interest' 	in 	protecting 	its 	residents
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from 	malicious 	libels 	should be 	recognized 	in 	these
circumstances." 	Linn, 	383 U.S. 	at 61. 	In such a case, 	the
NLRB 	does 	not 	have 	exclusive 	jurisdiction 	over 	the 	conduct.
More 	recently, 	the 	Supreme 	Court held 	that 	the 	NLRA does
not preempt a 	local 	union member's 	state 	(California) 	court
action 	against 	the 	union 	for 	intentional 	infliction 	of
emotional 	distress. 	Farmer v. 	Carpenters 	(1977) 	430 U.S. 	290
[94 LRRM 	2759]. 	The action 	alleged 	that 	the 	union 	refused 	to
make 	hiring hall 	referrals 	in 	retaliation 	for 	the 	member's
dissident 	activities. 	The 	court 	noted 	that 	the 	NLRA does 	not
protect 	"outrageous" 	conduct 	and 	that 	such 	conduct 	must be
proven 	in 	order 	to 	satisfy 	the 	elements 	of 	an 	emotional
distress 	cause 	of 	action 	under 	California 	law. 	Discussing 	the
development 	of 	the 	Garmon 	doctrine 	of 	exclusive 	jurisdiction,
the 	Farmer 	court 	said:
Our cases 	indicate 	. 	. 	. that
inflexible 	application 	of 	the 	doctrine
is 	to be avoided, 	especially where 	the
State has 	a 	substantial 	interest 	in
regulation 	of 	the 	conduct 	at 	issue 	and
the 	State's 	interest 	is 	one 	that 	does
not 	threaten 	undue 	interference 	with
the 	federal 	regulatory scheme. 	Id.,
430 U.S. 	at 302.
Prior 	to 	1978, 	no California 	decision 	directly addressed
the 	issue 	of 	competing 	jurisdiction 	between 	courts 	and 	labor
agencies. 	However, 	several 	earlier 	decisions 	recognized a
right 	to 	sue 	for 	defamation based 	on 	publications 	issued 	during
labor 	disputes. 	These 	cases held 	that 	such 	a 	right 	was 	not
foreclosed by either 	state 	or 	federal 	labor 	law, 	so 	long as 	the
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only 	unprotected 	statements 	were 	those 	that 	were 	made
maliciously. 	Gregory v. 	McDonnell 	Douglas Corp. 	(1976) 	17
Cal.3d 596 	[131 	Cal.Rptr. 	641], 	citing Emde 	v. 	San Joaquin Etc.
Labor Council 	(1943) 	23 Cal.2d 146 	[143 P.2d 20]; 	Di 	Giorgio
Fruit 	Corp. 	v. 	AFL-CIO 	(1963) 	215 	Cal.App.2d 560 	[30 Cal.Rptr.
350].
In 	1978, 	a state Court of Appeal, 	following the U.S.
Supreme 	Court's 	decision 	in Linn, 	held 	that 	the 	Superior 	Court
was 	not 	preempted 	by 	the 	NLRA 	from hearing 	a 	union's 	libel
action 	against 	a 	private 	sector 	employer. 	Hotel 	and 	Restaurant
Employees 	v. 	Anaheim Operating, 	Inc. 	(1978) 	82 Cal.App.3d 737
[147 	Cal.Rptr. 	510], 	cert. 	den., 	440 U.S. 	914 	(1979). 	An
employer 	leaflet 	had 	alleged 	the 	union's 	"connection 	to 	the
underworld 	and 	organized 	crime." 	The 	union 	first 	filed 	an
unfair 	practice 	charge 	with 	the NLRB, 	which 	refused 	to 	issue 	a
complaint 	on 	the 	ground 	that 	the 	leaflet 	was 	protected
expression 	under 	the 	NLRA. 	When 	the 	union 	filed 	its 	lawsuit,
the 	Superior 	Court 	dismissed 	it 	on 	the 	ground 	that 	only 	the
NLRB had 	jurisdiction 	over 	such disputes. 	The 	Court 	of 	Appeal
examined 	the 	factors 	permitting an 	exception 	to 	the 	Garmon
doctrine 	of exclusive 	jurisdiction 	and 	found, 	as 	the 	Linn 	court
had, 	that 	California 	had a 	strong 	interest 	in protecting
against 	defamatory 	speech 	and 	that 	no 	interference 	with 	the
federal 	regulation 	of 	labor 	disputes 	would 	result 	from 	the
Superior 	Court 	hearing 	the 	libel 	action.
Government 	Code 	section 	3541.5 	provides 	that 	the
determination 	whether 	an 	unfair 	practice 	charge 	is 	justified 	is
10

within 	the 	exclusive 	jurisdiction 	of 	the 	Board.66 	A
Garmon-like 	principle 	of 	preemption 	applies 	to potential
conflicts 	of 	jurisdiction 	between 	California 	courts 	and 	PERB:
the 	Board has 	exclusive 	jurisdiction 	over 	conduct 	that 	is
arguably 	protected 	or 	prohibited by 	EERA. 	San 	Diego 	Teachers
Assn. 	v. 	Superior Court, 	supra. 	"The aim of 	[the Garmon] 	rule
is 	to help bring 	expertise 	and 	uniformity 	to 	the 	delicate 	task
of 	stabilizing labor 	relations." 	Id., 	24 Cal. 3d at 	12.
Through 	the 	preemption 	doctrine,
both 	federal 	and 	state 	courts 	seek 	to avoid
conflicting 	adjudications 	which 	may
interfere 	with 	a 	labor board's 	ability 	to
carry out 	its 	statutory role, 	yet 	[seek] 	to
permit 	court 	action 	when 	the 	board 	cannot
provide 	a 	full 	and effective 	remedy. 	El
Rancho Unified 	School 	Dist, 	v. 	National
Education Assn. 	(1983) 	33 Cal.3d 946, 	961
[192 Cal.Rptr. 123].
This 	principle has been 	applied 	in 	a 	number 	of 	California
cases 	in 	which 	one 	party 	to a 	labor 	dispute 	in public education
has 	sought 	judicial 	relief. 	In all 	of them, 	the conduct
complained of 	was 	arguably prohibited by 	EERA, 	and 	it 	was 	held
that 	PERB had 	exclusive 	initial 	jurisdiction 	to 	determine
whether 	the 	conduct 	was 	an unfair practice. 	See, 	e.g., 	Amador
Valley Secondary Educators Assn. 	v. 	Newlin 	(1979) 	88 Cal.App.3d
254 	[151 	Cal.Rptr.725] 	(school 	district 	salary 	freeze because
of 	lack 	of 	salary agreement 	at 	start 	of 	school 	year); 	Council
6The 	Educational 	Employment 	Relations 	Act 	(EERA) 	is
codified 	at 	Government 	Code 	section 	3540 	et 	seq.
11

of 	School 	Nurses 	v. 	Los Angeles Unified 	School 	Dist. 	(1980) 	113
Cal.App. 	3d 	666 	[169 Cal.Rptr. 	893] 	(provisions of collective
bargaining agreement 	alleged 	to be 	contrary 	to 	Education 	Code);
San 	Diego 	Teachers 	Assn., 	supra 	(strike 	that district 	sought 	to
enjoin 	judicially 	may have 	been 	preceded 	by 	teachers' 	unfair
practices); 	El 	Rancho Unified School 	District, 	supra 	(suit 	for
damages 	arising out of 	strike); 	and Fresno Unified 	School
Dist, 	v. 	National 	Education Assn. 	(1981) 	125 Cal.App.3d 	259
[177 	Cal.Rptr. 	888] 	(nominally 	"tort" 	causes of action were
based 	on 	potential 	unfair practices 	arising out 	of 	strike).
At 	the 	same 	time, 	a 	principle of 	concurrent 	jurisdiction
between 	California 	agencies 	and 	courts 	has 	also been
recognized. 	In Fresno Unified School 	District, 	supra, 	the
court 	of 	appeal 	held 	that 	PERB 	and 	the 	trial 	court 	had
concurrent 	jurisdiction 	over 	the 	conduct 	that 	formed 	the 	basis
of 	the 	employer's 	cause 	of 	action 	for 	breach of 	a 	contract 	not
to 	strike. 	Citing a 	U.S. 	Supreme 	Court 	case,77 the 	Fresno
court 	noted 	that 	section 	301 	of 	the 	federal 	Labor Management
Relations 	Act permits 	judicial 	enforcement 	of 	collective
bargaining agreements, 	and 	found 	that 	federal 	courts had
allowed 	the 	judicial 	vindication 	of 	"uniquely personal" 	rights
of 	employees 	rising out of 	those 	agreements, 	such as wages,
hours, 	overtime pay and wrongful 	discharge. 	The court noted
7Hines v. 	Anchor Motor Freight 	(1976) 	424 U.S. 	554,
561-562 	[91 LRRM 2481].
12

that 	a 	California 	Labor 	Code 	section 	that 	long predated 	EERA
gave 	the 	parties 	to a 	collective bargaining 	agreement 	the
right, 	similar 	to 	that 	in 	section 	301, 	to 	judicially enforce
the 	contract's 	provisions.
The 	Fresno 	court 	also 	quoted 	extensively 	from 	Pacific 	Legal
Foundation v. 	Brown 	(1981) 	29 	Cal.3d 168, 	at 	199-200 	[172
Cal.Rptr. 487]:
Indeed, 	in a 	number 	of recent 	cases
this 	court 	has 	explicitly 	eschewed 	the
"meat 	ax" 	approach 	proposed by
petitioners 	and has 	instead 	applied
harmonizing principles 	in 	dealing with
overlapping 	jurisdictional 	schemes
comparable 	to those 	present 	in 	the
instant case. 	In Vargas 	v. 	Municipal
Court 	(1978) 	22 Cal.3d 902, 	910-913,
916 [150 Cal.Rptr. 	918, 	587 P.2d 714],
for example, 	this 	court 	accommodated
the 	municipal 	court's 	jurisdiction 	over
unlawful 	detainer 	actions 	and 	the
Agricultural 	Labor 	Relations 	Board's
unfair 	labor 	practice 	jurisdiction,
recognizing 	that 	neither 	entity
completely 	ousted 	the 	other
jurisdiction 	under 	all 	circumstances.
Similarly, 	in Kaplan's 	Fruit 	& Produce
Co. 	v. 	Superior Court 	(1979) 	26 Cal.3d
60, 67-75 	[162 Cal.Rptr. 	745, 	603 P.2d
1341], 	we held that the ALRB's
jurisdiction 	over 	unfair 	labor
practices 	did 	not 	prevent 	a 	superior
court 	from 	granting 	equitable 	relief 	in
instances 	"when 	the board 	cannot
provide 	a 	full 	and 	effective 	remedy."
In 	line 	with 	the 	foregoing, 	the 	Board 	therefore 	concludes
that 	it does 	not have 	exclusive 	initial 	jurisdiction 	to
determine 	whether 	an 	unfair 	practice 	has 	been 	committed 	where
one 	party 	to a 	labor 	dispute has 	sued 	for 	libel 	for 	a 	statement
made 	during 	the 	course 	of 	the 	labor-management 	relationship.
Instead, 	the 	Board has 	concurrent 	jurisdiction 	with 	the
13

Superior 	Court 	over 	the 	conduct 	involved. 	The 	Board has
reached 	this 	conclusion 	for 	the 	following 	reasons.
First, 	the 	leading cases holding 	that 	PERB's 	jurisdiction
is preemptive of the 	courts' 	arose 	in 	strike 	situations. 	See
San Diego, 	Fresno and El 	Rancho, 	supra. 	The Board has 	a
special 	expertise 	in 	mediating 	this 	type 	of 	labor 	dispute 	and
it 	can provide a 	remedy that 	is 	"full 	and effective," 	if 	not
identical 	to the 	remedy available 	in court. 	El 	Rancho, 	supra.
In 	contrast, 	no strike 	is 	involved 	in 	the present 	case.
Second, 	the 	nominally 	"tort" 	causes 	of action 	in Fresno,
which 	the 	court held 	to be 	within 	PERB's 	exclusive
jurisdiction, 	were 	found 	to be 	integrally 	related 	to a 	critical
labor 	relations 	issue 	— 	the 	right 	to 	strike. 	The 	court
contrasted 	these 	tort 	claims 	with 	the 	one 	presented 	in 	Farmer
v. 	Carpenters, 	supra. 	There, 	the U.S. 	Supreme Court held that
a 	cause 	of 	action 	for 	intentional 	infliction 	of 	emotional
distress 	was 	of 	sufficiently 	"peripheral 	concern" 	to 	the 	labor
dispute 	that 	an 	exception 	to 	the 	NLRB's 	exclusive 	jurisdiction
could be 	allowed. 	The 	recent 	El 	Rancho 	decision 	reaffirms 	this
distinction, 	holding 	that 	civil 	damage 	actions 	arising out 	of
strikes 	are 	preempted by PERB, 	while 	acknowledging 	that 	certain
types 	of 	violent 	conduct 	in 	strikes 	are permitted 	to be
redressed by court action. 	33 	Cal.3d at 	960, 	fn. 	20.
Third, 	the 	Board 	is 	unable 	to provide 	a 	"full 	and
effective" 	remedy in 	the present case. 	In 	the 	civil 	action,
Corcoran 	seeks 	an 	award 	of 	money damages 	in 	order 	to 	vindicate
14

his 	reputation. 	In contrast, 	even 	if 	the ALJ and 	the Board
were 	to 	find 	that 	the 	District 	committed 	no unfair 	practice,
Corcoran 	would be 	limited 	to 	a 	discretionary 	award 	of 	its 	fees
incurred before PERB.8
Finally, 	the 	court of appeal's 	decision 	in Hotel 	and
Restaurant Employees, 	supra, 	lends 	some 	support 	to the Board's
conclusion 	that 	PERB's 	jurisdiction 	does 	not preempt 	the
Superior 	Court's 	in 	these 	circumstances. 	While 	it 	is 	true 	that
the 	union 	in 	that 	case 	filed 	suit 	only after 	the 	NLRB had
refused 	to 	issue an unfair practice 	charge, 	it 	is 	nonetheless
significant 	that 	the 	court 	found 	that 	no 	interference 	with 	the
federal 	scheme 	of 	regulation 	of 	labor 	disputes 	would 	result
from 	the 	Superior 	Court 	hearing 	the 	libel 	action.
Propriety of 	Stay
Having 	concluded 	that 	there 	is 	no 	jurisdictional 	bar 	to 	the
Superior 	Court's 	proceeding with 	the 	libel 	action, 	the 	Board
must 	now decide 	whether 	it 	should 	affirm 	the ALJ's 	stay until
the 	libel 	action 	is 	concluded.
8This 	is 	only 	the 	clearest 	example 	of 	the 	remedies
problem 	in 	this 	case. 	Even 	if 	the 	ALJ and 	the 	Board were 	to
find both 	that 	Corcoran 	acted 	as 	the 	District's 	agent 	and 	that
he 	committed 	an 	unfair 	practice by 	threatening 	to 	sue 	and
filing 	suit, 	PERB's 	range 	of 	remedies 	is 	limited. 	PERB may be
precluded by the Bill 	Johnson's 	case, 	discussed 	infra, 	from
ordering 	the 	District 	to 	cease 	and 	desist 	from pursuing 	its
suit. 	PERB could, 	in 	theory, 	order 	the 	District 	not 	to
threaten 	the Association with 	suits 	in 	the 	future, 	but 	the
threat 	in 	this 	case has 	already been made 	and was 	followed by
the 	suit which, 	as 	noted, 	PERB may not be able 	to enjoin.
15

In Bill 	Johnson's, 	supra, 	the decision on which 	the PERB's
ALJ relied, 	a 	restaurant 	owner 	sued 	several 	of his 	employees 	in
state 	court. 	He 	alleged 	that 	their picketing 	activity
interfered with his 	business 	and 	threatened public 	safety, 	and
that 	libelous 	statements 	were made 	about him 	in 	leaflets 	they
distributed. 	The 	employees 	filed 	unfair 	practice 	charges 	with
the NLRB, 	alleging, 	inter alia, 	that 	the suit was 	filed 	in
retaliation 	for 	their protected activity. 	After 	a hearing, 	the
NLRB 	found 	that 	prosecution 	of 	the 	suit 	was 	in 	retaliation 	for
the 	employees' 	protected 	activity -- organizing 	and
picketing 	— 	and 	ordered 	the 	employer 	to 	withdraw 	its 	suit.
The 	Ninth 	Circuit 	Court 	of 	Appeals 	enforced 	the 	NLRB's 	order,
but 	the 	U.S. 	Supreme 	Court 	vacated 	the 	order.
Before 	the 	Supreme 	Court, 	the 	NLRB argued 	that 	an 	employer
who 	sues 	an 	employee 	for 	a 	retaliatory motive 	is 	guilty of
violating 	the 	NLRA, 	regardless 	of whether 	the 	suit has 	merit.
The 	Court, 	rejecting 	this 	contention, 	noted 	two 	important
considerations: 	that 	the 	individual 	plaintiff has 	a 	first
amendment 	right of 	access 	to 	the 	courts; 	and 	that 	the 	states
have 	an 	interest 	in 	providing a 	judicial 	remedy 	for 	tortious
conduct 	in 	order 	to maintain domestic peace. 	The 	Court
recalled 	that 	it 	had 	consistently 	allowed 	an 	exception 	to 	the
NLRB's 	exclusive 	jurisdiction 	for 	torts 	occurring 	during 	labor
disputes, 	citing Linn v. 	Plant Guards, 	and Farmer v. 	Carpenter,
supra. 	Therefore, 	the Court 	said, 	to permit 	the board to 	find
16

an 	unfair 	practice 	based 	solely on 	the 	filing of 	a 	lawsuit
without 	regard 	to 	its 	merit 	would 	undermine both 	the
individual's 	and 	the 	state's 	interests. 	For 	that 	reason, 	the
Court held, 	the NLRB 	can 	enjoin 	a 	state 	lawsuit as being an
unfair 	practice 	only when 	it 	finds 	both 	that 	the 	lawsuit 	would
not have 	been 	filed 	but 	for 	the 	plaintiff's 	retaliatory motive
and 	that 	the 	lawsuit 	lacks 	a 	"reasonable 	basis."
According 	to 	the 	Court, 	the 	reasonable basis 	inquiry by 	the
NLRB 	should be 	a 	determination 	of 	whether 	the 	plaintiff 	in 	the
state 	action 	has 	presented 	evidence 	demonstrating 	that his
lawsuit 	raises 	genuine 	issues of material 	fact, 	or mixed
questions 	of 	law and 	fact. 	The Court 	declined 	to 	specify a
required method 	for 	the NLRB's 	inquiry, 	stating 	that 	the
inquiry 	need 	not 	be 	limited 	to 	the 	pleadings 	and 	that 	its
determination 	could 	rest 	solely on 	documentary 	evidence 	or
could be based 	on 	a 	full 	evidentiary hearing. 	If 	the 	NLRB
finds 	that 	the 	lawsuit 	raises 	genuine 	issues 	of material 	fact,
the 	Court 	concluded, 	then 	it 	"should proceed no 	further 	with
the 	unfair 	practice 	proceedings but 	should 	stay 	those
proceedings 	until 	the 	state 	court 	suit has 	been 	concluded."
(Emphasis 	added.) 	113 LRRM at 	2654.
While 	this 	Board 	is 	not bound 	to 	follow Bill 	Johnson's,
which 	construes 	a 	provision of 	the NLRA, 	we 	find 	the 	facts 	of
the 	present 	case 	sufficiently analogous 	to make 	Bill 	Johnson's
instructive. 	Moreover, 	several 	of 	the 	interests 	identified by
17

that 	decision as 	supporting an NLRB 	stay, 	are 	likewise present
here. 	First, 	our 	affirmance 	of 	the ALJ's 	stay would permit
Corcoran 	access 	to 	the 	court 	in 	order 	to vindicate his 	personal
reputation. 	This 	is 	of particular 	concern where 	PERB may be
unable 	to provide 	as 	full 	and effective 	a 	remedy 	for 	the
alleged wrong 	to Corcoran 	as 	can 	the court. 	Second, 	our 	stay
would 	accommodate 	the 	state's 	interest 	in 	providing 	a 	remedy
for 	tortious 	conduct 	in 	order 	to maintain 	the public peace.
Finally, 	the particular conduct 	in 	this 	case seems, 	at best,
peripherally 	involved with 	the 	labor 	dispute 	between 	the
District 	and 	the Association.
Upon 	review of 	the 	transcript 	of 	the hearing 	in 	this 	case,
we 	are 	in 	agreement 	with 	the ALJ's 	finding 	that 	genuine 	issues
of material 	fact were presented. 	Two questions 	are 	crucial 	to
the 	determination of 	the 	libel 	suit: 	(1) 	whether or 	not
Corcoran was 	reading the Association's 	notes; 	and 	(2) 	if 	not,
whether 	or 	not 	Gutman made 	the 	statements 	about 	Corcoran
knowing 	them 	to be 	false 	or 	in 	reckless 	disregard 	of 	their
truth or 	falsity. 	Neither 	is 	resolved by 	the 	PERB 	record. 	The
first 	is a question of 	fact and, 	as 	noted above, 	factual
versions 	of 	what 	transpired at 	the 	April 	3rd bargaining 	session
remain 	at odds. 	The 	second, 	which 	is 	a mixed question 	of 	law
and 	fact, 	is 	likewise at 	issue. 	Gutman's motive 	in publishing
18

the 	statement 	and 	the 	personal 	knowledge 	on 	which he 	did 	so
remain open to debate.999
Therefore, 	we hold 	that 	any 	further proceedings 	in 	the
unfair 	practice 	case 	before 	PERB 	are 	properly 	stayed 	until 	the
libel 	action 	is 	resolved.
ORDER
The 	ALJ's 	stay of 	further 	proceedings 	in 	Rim 	of 	the World
Teachers Association, 	CTA/NEA v. 	Rim of 	the World Unified
School 	District, 	Case No. 	LA-CE-2169, 	until 	the resolution of
the 	libel 	action entitled 	Corcoran 	v. 	Gutman, 	San 	Bernardino
County Superior 	Court No. 	22079, 	is hereby AFFIRMED.
Members 	Morgenstern 	and 	Craib 	joined 	in 	this 	Decision.
9In 	this 	regard, 	the Association 	argues 	that 	the 	evidence
adduced 	at 	PERB's 	hearing 	fails 	to demonstrate 	that 	the 	libel
suit has 	a 	reasonable basis, 	because 	there was 	no showing 	that
Gutman's 	statement was 	either 	false 	or made with malice. 	The
Association 	incorrectly 	characterizes 	the 	degree 	of 	knowledge
required by the malice 	standard. 	The 	issue 	is 	not, 	as 	the
Association 	asserts, 	whether 	Gutman's 	statement was 	made 	with
hatred or 	ill 	will, 	but 	rather whether 	it was made with
knowledge 	that 	it was 	false 	or 	with 	reckless 	disregard 	for 	its
truth or 	falsity. 	As 	the 	District 	correctly points 	out, 	this
definition 	of malice 	for 	cases 	involving public 	figures,
established 	in New York Times 	v. 	Sullivan 	(1964) 	376 U.S. 	254
[11 	L.Ed.2d 686], has 	been 	adopted 	in 	California. 	See 	Good
Government 	Group of 	Seal 	Beach 	v. 	Superior 	Court 	(1978) 	22
Cal.3d 672 [150 Cal.Rptr. 	258].
19