Fresno Unified School District/Jefferson School District (PERB I001E)

STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 110,
Charging Party,
vs.
FRESNO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. S-CE-55
JEFFERSON CLASSROOM TEACHERS
ASSOCIATION, CTA/NEA,
Charging Party,
vs.
JEFFERSON SCHOOL DISTRICT,
Respondent.
EERB Order
No. IR-1
Case No. SF-CE-33
ORDER DENYING REQUESTS THAT EERB
GENERAL COUNSEL PETITION THE
SUPERIOR COURT FOR INJUNCTION
The Educational Employment Relations Board hereby declines to direct the General
Counsel to seek temporary relief pursuant to Government Code Section 3541.3(j) in the
above-captioned cases.
Educational Employment Relations Board
by
STEPHEN 'BARBER
Executive Assistant to the Board
6/15/77
Reginald Alleyne, Chairman, concurring:
In both cases, employee organizations request that the EERB petition a court for
temporary relief or a restraining order. Both employee organizations rely on
Government Code Section 3541.3(j). General Counsel denied the request in Fresno. This
appeal followed. In Jefferson, the request was addressed to the Executive Director, who
referred it to the Board. The General Counsel made no ruling in that case.

I believe that the Fresno request was properly denied by the General Counsel
and that the request made in Jefferson should be denied by the Board. Government
Code Section 3541.3(j) provides:
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.
The April 25, 1977 letter from SEIU's attorney in the Fresno case states that
"the language of [EERA] Section 3541.3(j) derives directly from Section 10(j) of the
NLRA" and that pursuant to Firefighters Union v. City of Vallejo, we should construe
the EERA the way the courts construe the NLRA. Actually, if we follow NLRB practice,
as suggested by SEIU counsel, we should determine that our General Counsel correctly
refused to seek an injunction as requested.
Section 10(j) of the NLRA provides:
(j) The Board shall have power, upon issuance of a complaint
as provided in subsection (b) of this section charging
that any person has engaged in or is engaging in an unfair
labor practice, to petition any United States district
court, within any district wherein the unfair labor practice
in question is alleged to have occurred or wherein such
person resides or transacts business, for appropriate tem-
porary relief or restraining order. Upon the filing of any
such petition the court shall cause notice thereof to be
served upon such person, and thereupon shall have juris-
diction to grant to the Board such temporary relief or
restraining order as it deems just and proper.
Under NLRA Section 10(j), injunction proceedings in the federal district courts
are governed by general principles of equity and hence require that the General Counsel
show (1) irreparable injury to the party who would benefit from the injunction if the
injunction is not granted; (2) that the beneficiary of the injunction has no adequate
remedy at law; or (3) extraordinary circumstances. These equity standards apply in
NLRA injunction proceedings against employers under NLRA Section 10(j) and also in
1 12 Cal. 3d 608, 617, 87 LRRM 2453 (1974)
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injunction proceedings against unions under NLRA Section 10(1).
2
Because of the general equity standards in injunction cases, more injunctions
are sought and granted against unions than are sought and granted against employers.
When a union is accused of violating a section of the NLRA prohibiting certain forms
of picketing, the nature of the picketing or secondary boycott is such that an
adequate remedy at law is sometimes not available to the party who would be the
beneficiary of the General Counsel's injunction request under NLRA Section 10(1).
The theory is that unlawful picketing could destroy an employer's business
before the unfair practice procedure requiring a hearing and appeal to the NLRB
could be completed.
In contrast, the injunction against an employer, like those requested in these
cases, is seldom sought by the NLRB's General Counsel because the availability of
an unfair practice hearing and eventually a cease and desist order, with a monetary
award in appropriate cases, is ordinarily regarded as adequate to make injunctive
relief unwarranted.
2NLRA Section 10(1) provides in part:
(1) Whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph
(4)(A), (B), or (C) of section 8(b), or section 8(e) or
section 8(b)(7), the preliminary investigation of such
charge shall be made forthwith and given priority over
all other cases except cases of like character in the
office where it is filed or to which it is referred.
If, after such investigation, the officer or regional
attorney to whom the matter may be referred has
reasonable cause to believe such charge is true and
that a complaint should issue, he shall, on behalf of
the Board, petition any United States district court
within any district where the unfair labor practice in
question has occurred, is alleged to have occurred, or
wherein such person resides or transacts business, for
appropriate injunctive relief pending the final adjudication
of the Board with respect to such matter. Upon filing
of any such petition the district court shall have juris-
diction to grant such injunctive relief or temporary
restraining order as it deems just and proper, notwith-
standing any other provision of law. •..
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NLRB statistics on the number of injunctions requested and granted against
employers and unions tend to reveal the differences between injunction requests in
actions against employers and those against unions. In its fiscal year 1975, the
NLRB received a total of 31,253 unfair labor practice charges of which 20,311 were
filed against employers. Of the 20,311 charges against employers, the NLRB's
General Counsel sought injunctive relief in 13 or 0.064% of those cases. Of the
10,822 charges filed against unions, the NLRB's General Counsel sought injunctive
relief in 324 or 3% of the cases filed. The NLRB's Annual Report does not indicate
the nature of the facts in the 13 cases in which injunctive relief was sought
against employers under Section 10(j) of the NLRA but the facts in such cases are
usually quite extraordinary. Further indication of the extraordinary nature of
the injunction against an employer in an NLRB unfair practice case is the small
number of cases in which injunctions are granted by the courts. In the 13 cases
in which the NLRB's General Counsel sought injunctions against employers in 1975,
NLRA Section 10(j) injunctions may be sought against employers or unions but NLRA
Section 10(1) injunctions are limited to cases against unions. The injunction
figures are derived from the 1975 Annual Report of the National Labor Relations
Board, Table 20, p. 251, which shows Section 10(j) and Section 10(1) injunctions
with the sections of the NLRA alleged to have been violated listed under each section.
The figure 13 for the number of injunctions sought against employers is derived by
subtracting the 8(b) or union violations from the total of 8(a) (employer) and 8(b)
violations. The total number of injunctions requested against unions is derived from
the table by adding the total number of 10(1) injunctions to the number of 8(b)
injunctions listed in Section 10(j).
Federal appellate courts have uniformly rejected the view that probable cause that
the NLRA has been violated is, alone, sufficient to justify injunctive relief. See
McCleod v. General Electric Co., 336 F. 2d 847, 63 LRRM 2065, ( C A . 8, 1966), remanded
to determine whether issue moot, 385 U.S. 533, 64 LRRM 2129 (1967); NLRB v. Aerovox
Corp., 389 F. 2d 477, 67 LRRM 2158 ( C A . 4, 1967); Minnesota Mining & Mfg. Co. v.
Meter, 385 F. 2d 265, 66 LRRM 2444, 2448 ( C A . 8, 1967); Angle v. Sacks, 382 F. 2d 655,
66 LRRM 2111 ( C A . 10, 1967). A case discussing the general topic, distinguishing
NLRA Sections 10(j) and 10(1) and general temporary restraining order standards is
Squillacote v. Food Workers Union, 92 LRRM 2089 ( C A . 7, 1976), particularly pages
2095-2097.
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injunctions were granted in two cases. In the 324 cases in which injunctions
were sought against unions, injunctions were granted in 102 cases.
Fresno and Jefferson appear to be routine refusal-to-bargain cases. In each
case an adequate remedy at law is available to the charging party through the normal
unfair practice procedures available under the EERB's rules. In Jefferson, the facts
alleged as a basis for the charge took place almost one year ago. The charge was
filed on November 15, 1976. The injunction request was made six and a half months
later. As counsel for the employer notes, it is inconsistent to maintain that there
are extraordinary circumstances warranting injunctive relief when the charging party
waits six and a half months to request injunctive relief. The charge amounts to an
allegation that the length of the school year is within the scope of negotiations
within the meaning of Government Code Section 3543.2. I believe that a scope of
negotiations charge is peculiarly amenable to resolution through our unfair practice
procedures. The Fresno case also appears to be a refusal-to-bargain charge that does
not warrant injunctive relief under ordinary equity standards.
II
There are further reasons why the request for injunctive relief ought to be
denied. I do not accept as valid the assumption of the union's attorney in the
Fresno case that the NLRA and the EERA are parallel on the matter of injunctive
relief by the Board. Section 10(j) of the NLRA parallels EERA Section 3541.3(j),
with the exception of a reference in NLRA Section 10(j) to NLRA Section 10(b)
Since the General Counsel never acted upon the injunction request made in the
Jefferson case, it is technically not properly before us. However, since the issue
is properly before us in the Fresno case, the disposition by the Board in the
Fresno case should appropriately serve as the disposition by the Board in the
Jefferson case.
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which, when read with NLRA Section 3(d), specifically authorizes the NLRB's General
Counsel to issue a complaint against "any person" charged with an unfair labor practice
under the NLRA. The EERA contains no such provision.
There is a reference to the issuance of a complaint in Government Code Section
3541.3(j), as previously discussed. Another EERA reference to a complaint appears
in the statute of limitations section on unfair practices, Government Code Section
3541.5(a), which provides that the Board shall not "issue a complaint in respect
of any charge based upon an alleged unfair practice occurring more than six months
prior to the filing of the charge." It seems apparent that the draftsmen of the
EERA, in looking for statute-of-limitations language, went directly to the NLRA
and lifted the statute-of-limitations language from Section 10(b) of the NLRA, which
provides: "No complaint shall issue based upon any unfair practice occurring more
than six months prior to the filing of the charge with the Board...."
Government Code Section 3541.5(a) also provides that the EERB shall not issue
a complaint against conduct also prohibited by provisions of the collective bargaining
agreement, until the grievance provisions of the agreement are exhausted if they
are applicable. That language was taken from the NLRB's decision in Collyer Insulated
Wire and subsequent cases implementing the grievance-arbitration-deferral rules set
out in the Collyer case. The principal objective of the Legislature in copying
NLRA and NLRB language in respect to the statute of limitations and arbitration
deferral, respectively, was to place those two concepts in the EERA. I think nothing
more was intended. Otherwise, the Legislature would have gone further in spelling
out the prosecutorial role of the EERB General Counsel, as does the NLRA in describing
the NLRB's General Counsel.
6 192 NLRB 837, 77 LRRM 1931 (1971).

The functions of the NLRB's General Counsel as a prosecutor are explicitly
stated in Section 3(d) of the NLRA, where it is provided that the General Counsel
"shall have final authority, on behalf of the Board, in respect of the investigation
of charges and issuance of complaints under Section 10, and in respect of the
prosecution of such complaints before the Board...." To maintain the independence
of the NLRB as a neutral agency, the Congress sharply separated the decision-making
function of the NLRB and the prosecutorial functions of the NLRB's General Counsel
by making both members of the NLRB and the NLRB's General Counsel appointees of the
President. To maintain the independence of NLRB administrative law judges from the
prosecutorial function of the NLRB's General Counsel, the NLRA, in Section 3(d),
provides: "The General Counsel of the Board shall exercise general supervision
over all attorneys employed by the Board (other than trial examiners and legal
assistants to Board members) ...." [Emphasis added.]8 In contrast, the EERB's General
Counsel is not independently appointed by the Governor but, under Government Code
Section 3541(e), is appointed by the EERB. As an appointee of the EERB, he is an
agent of the EERB, and under EERB rules serves, among other things, as the EERB's
principal hearing officer.
With no statutory division of decision-making authority and prosecutorial
authority in the EERA, it will not be possible for the EERB to maintain its neutrality
and at the same time to direct its appointed General Counsel to seek injunctions in
unfair practice cases capable of being effectively decided through the EERB hearing
process. Also, the routine prosecution of independent governmental entities, like
school boards, by another agency of government, like the EERB, is so unusual that in my
view only a clear and unequivocal command of the Legislature could authorize it.
For these reasons, I would sustain the denial of the request that we seek an
injunction in the Fresno case and direct the General Counsel to so notify the parties in
the Jefferson case. I would limit our attempts to seek injunctions to those cases in
which an injunction is necessary to protect our jurisdiction and our processes.
7 NLRA Sections; 3(d) and 3(a).
The title "trial examiner" has been changed to "administrative law judge."
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For example, if an employer or employee organization physically attempted to stop the
EERB from holding a hearing, I think that would be an appropriate case for the General
Counsel to seek injunctive relief. Also, once an EERB cease and desist order issued,
I would favor an injunction in appropriate cases, such as those where an employer or
employee organization was about to take action that would make the EERB cease and
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desist order ineffective. In cases not of that general nature, parties in EERB
cases are free to attempt to seek injunctions in the Superior Court without asking
the EERB to seek an injunction for them. Union counsel in Fresno and Jefferson, in
particular, are free to take their injunction requests directly to the Superior
Court, a step a union could not take in an NLRA case, since the NLRB's General Counsel,
as the moving party in all NLRA unfair practice complaint cases, is the only party who
has standing to seek an NLRA Section 10(j) or 10(1) injunction.
Reginald Alleyne, Chairman
Jerilou H. Cossack, Member, concurring:
In these companion cases exclusive representatives filed requests for the Board
9See NLRB v. Interstate Equipment Co., F. , 74 LRRM 2003, ( C A . 7, 1970),
interpreting NLRA Section 10(e), authorizing judicial review of NLRB orders and
application for "appropriate temporary relief or restraining order." Our comparable
Gov. Code Sec. 3542 contains no provision for "temporary relief or a restraining order"
in connection with enforcement of our orders, a serious omission unless, as I
believe, Gov. Code Sec. 3541.3(j) may be read as having that effect.
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to seek temporary relief, pursuant to Government Code Section 3541.3(j), to
restrain their respective employers from implementing alleged unilateral actions.
In both cases, unfair practice charges were timely filed and the complaints are
pending. The Jefferson School District adopted its 1976-1977 calendar June 30,
1976, the day before the Educational Employment Relations Act was fully in effect
and the day before the official school year was to begin. Over five months later,
November 15, 1976, the Jefferson Classroom Teachers Association (Association) filed
its unfair practice charge, alleging the District took unilateral action by increas-
ing the length of the school year by one week. After the answer was filed and an
informal conference held, a formal hearing was scheduled for March 29, 1977. Two
continuances were granted with the consent of both parties, with the hearing actually
held beginning April 28, 1977. By agreement of the parties, posthearing briefs are
due July 8, 1977. On June 3, 1977, the Association filed its request for this Board
to seek temporary relief.
In the Fresno Unified School District charge, the Service Employees International
Union alleged that on March 10, 1977, the District unilaterally changed its vacation
scheduling procedure, imposing a cut-off date of May 15. The SEIU unfair practice
charge was filed April 11, 1977; a hearing was scheduled for June 23. On May 16,
SEIU requested temporary relief. May 19 the District extended the cut-off date to
June 1.
Gov. Code Sec. 3541.3 states:
The board shall have all of the following powers and duties:
(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.
Other statutory references are to the Government Code.
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Among criteria necessary to secure a temporary restraining order from a
superior court are irreparable injury and inadequate remedy at law. The issuance
of a temporary restraining order or preliminary injunction is not a determination
of the merits of a case; however it is the duty of the court to consider the
likelihood the plaintiff would ultimately prevail. The court must also balance
the injury to the defendant from granting temporary relief and the injury to the
plaintiff from refusing it. Continental Baking Co. v. Katz, 68 Cal. 2d 512, 67
Cal. Rptr. 761 (1968); State Board of Barber Examiners v. Star, 8 Cal. App. 3d 736,
(1970); Weingand v. Atlantic Savings & Loan, 1 Cal. 3d 806 (1970). Courts are free
to refuse to issue a TRO where the ultimate outcome is doubtful. 65 Cal. App. 698
(1924).
Temporary relief may be sought under the National Labor Relations Act 2 "upon
issuance of a complaint...charging that any person has engaged in an unfair labor
practice...." Such action will be taken only where there has been a clear and
flagrant violation of the NLRA. Johnston v. Wellington, 49 LRRM 2536 (1961).
In the Fresno request, no allegation was even made that the charging party
would suffer irreparable injury if temporary relief was not available. In the
Jefferson request, we are faced with an allegation of unilateral action which
arose prior to the full implementation date of the EERA. On a determination of
the merits of the case, it is possible that there would have been no duty to
negotiate in good faith prior to July 1, 1976. If the District had no obligation
beyond the Winton Act 3 there may be no unfair practice violation and therefore
no way for the charging party to prevail.
2 29 U.S.C. Sec. 160(j).
3Formerly, Ed. Code Secs. 13080 et seq., repealed by Stats 1975, Ch. 961, Sec. 1.
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Assuming, arguendo, that the District's action on June 30, 1976, was an
unfair practice, does it warrant extraordinary relief now, almost one year later?
The record indicates the Association and the teachers were aware of the District's
action to extend the school year to June 24, 1977. It is hard to find irreparable
injury in regard to plans made for the week of June 20-24 when the teachers have been
on notice for almost one year that they would be expected to report for work that
week. Furthermore, at no time did the District indicate that it had altered its
position to require this attendance.
In both these cases, the alleged unfair practices do not fall in the category
of exceptional or extraordinary situations requiring extraordinary relief. The
unfair practice procedure of this Board should be able to accommodate the parties.
While I believe we can and should avail ourselves of the opportunity to seek
temporary relief in the courts, it is not an action to be taken without sufficient
cause. These cases do not provide that cause.
I disagree with the Chairman in his view of the role of the general counsel.
I believe the Educational Employment Relations Act (EERA) contemplates a prosecuting
general counsel. Section 3541.3(i) authorizes this Board to "investigate unfair
practice charges or alleged violations" of the EERA. Section 3541(e) provides for
a general counsel to assist the Board "in the performance of its functions...."
I do not find it necessarily a conflict of interest nor necessarily a
violation of Board neutrality for the general counsel to seek temporary relief
pursuant to Section 3541.3(j). It is the purpose of the EERA to "promote the
improvement of personnel management and employer-employee relations." If we
should determine it is necessary to implement Section 3543.l(j) in order to
achieve our statutory purpose, we should be free to do so.
Jerilou H. Cossack, Member
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