Modesto City Schools (PERB I012E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY SCHOOLS,
Charging Party,
v.
MODESTO TEACHERS ASSOCIATION,
CTA/NEA, et al
Respondents.
Case No. S-CO-48
PERB Order No. IR-12
March 12, 1980
MODESTO TEACHERS ASSOCIATION,
CTA/NEA,
Charging Party,
v.
MODESTO CITY SCHOOLS, et al
Respondents.
Case No. S-CE-318,
319, 320
Appearances: Keith V. Breon, Attorney (Breon, Galgani &
Godino) for Modesto City Schools; Kirsten Zerger, Attorney
(California Teachers Association) for Modesto Teachers
Association, CTA/NEA.
Before Gluck, Chairperson; Gonzales and Moore, Members.
DECISION AND ORDER
In Modesto City Schools (3/10/80) PERB Order No. IR-11,
the Public Employment Relations Board (hereafter PERB or Board)
asserted jurisdiction over injunctive relief requests by the
parties to this proceeding, based on unfair practices each
alleged the other was committing, and directed the general
counsel to investigate the matter further and report back to
the Board itself within 24 hours. (Gov. Code section

3541.3(j).1 (Also see Board rule 38100 (8 Cal. Admin. Code,
sec. 38100) .)
In our order IR-11 we indicated that PERB had "insufficient
grounds . . . to seek injunctive relief against either party at
this time." The District's pleadings appeared to indicate that
the Modesto Teachers Association (hereafter Association or
MTA), was engaged in an arguably protected economic strike
following completion of mediation and factfinding procedures.
As we said in IR-11, EERA "contains no provision which makes
strikes after the completion of the statutory impasse
procedures unlawful per se." Nevertheless we retained
jurisdiction in order to determine whether, as suggested by the
Association's pleadings, the work stoppage was in fact an
unfair practice strike, and, if so, whether extraordinary
relief is appropriate to effectuate the purposes of the Act.
Based on the results of the general counsel's further
investigation of this matter the Board concludes that it is
probable that the Modesto City Schools (hereafter District)
violated section 3543.5(c)2 by refusing to meet and negotiate
Educational Employment Relations Act (hereafter
EERA) is codified at Government Code section 3540, et seq. All
statutory references in this decision are to the Government
Code, unless noted otherwise.
2 Section 3543.5(c) provides:
It shall be unlawful for a public school

with the exclusive representative over concessions and new
proposals that the Association offered following exhaustion of
statutory procedures prescribed to break impasse.3 (See
section 3548 et seq.) It is also probable that the District
violated section 3543.5(c) by unilaterally changing some terms
and conditions of employment beyond the prerogative extended to
the District to act after impasse procedures have been
exhausted.4
To protest the employer's apparent refusal to negotiate in
good faith the Association thereafter engaged in a work
stoppage. This work stoppage is not per se prohibited by
EERA. (San Diego Teachers Association v. Superior Court (1979)
24 Cal. 3d 1, 13.) Rather, the work stoppage appears to be a
employer to:
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
3 See, e.g., NLRB v. Webb Furniture Corp. (4th Cir. 1966)
366 F.2d 314 [63 LRRM 2163]; NLRB v. Sharon Hats, Inc. (5th
Cir. 1961) 289 F.2d 628 [48 LRRM 2098]; R. James Span (1971)
189 NLRB 219 [76 LRRM 1671]. Comparable provisions and cases
applying the National Labor Relations Act, as amended, 29
U.S.C. 151, et seq., may be used to guide interpretation of
EERA. Sweetwater Union High School District (11/23/76) EERB
Decision No. 4. (Prior to July 1, 1978, PERB was known as the
Educational Employment Relations Board or EERB.) Also see Fire
Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.
4 Atlas Tack Corp. (1976) 226 NLRB 222 [93 LRRM 1236];
Newspaper Printing Corp. (1975) 221 NLRB 811 [91 LRRM 1077];
Idaho Fresh Pak-Inc. (1974) 215 NLRB 676 [88 LRRM 1207]. Also
see Morris, the Developing Labor Law (1971) pp. 330-332.

protected response to an employer's unfair practices.5
The Association has requested PERB to seek injunctive
relief against the employer's continued refusal to meet and
negotiate over concessions and new proposals offered following
mediation and factfinding. The Association has also requested
recision of the probable unlawful unilateral actions. As
ordered below, such injunctive relief is appropriate to
"maintain the continuity and quality of educational services."
San Diego Teachers Association v. Superior Court supra, 24 Cal.
3d 1, 11.
The District maintains that after exhaustion of the
statutory impasse procedures it is free to make unilateral
changes consistent with its last, best offer, the factfinder's
recommendations, or the status quo. This argument raises novel
considerations for PERB. While the NLRA does not contain
comparable impasse procedures, including mediation and
factfinding, the rule in the private sector is that after
impasse an employer may make changes consistent with its last,
best offer. (Ante, n.4.) The Board has had a telescoped time
period in which to evaluate the injunctive relief requests and
frame the order here. An injunctive relief proceeding is not
necessarily the best context in which to develop major new
principles of law. Accordingly, at this juncture, for the
purpose of
5 Mastro Plastics Corp. v. NLRB (1956) 350 U.S. 270 [37
LRRM 2587]. 4

effectuating the relief here, we have determined to follow the
rule of the private sector and prohibit the employer from
making unilateral changes inconsistent with its last, best
offer during negotiations.
But unconditional injunctive relief against the employer
alone would not completely stabilize the negotiating
relationship between the parties. The Association has invoked
the processes of PERB to compel a resumption of negotiations.
It has demonstrated a desire to resolve differences at the
negotiating table by making numerous proposals and
counterproposals on significant issues following factfinding.
While apparently believing it had no duty to enter into further
negotiations, the District has nonetheless met with the
Association to hear MTA ideas and thus a basis for resumption
of negotiations does exist.
The EERA is a collective negotiations statute. An ultimate
purpose of the Act is to promote stability in employer-employee
relations in the public schools. This is best served when the
parties resolve their disputes at the negotiating table. For
this reason we have determined in this case that the employer's
obligation to resume negotiations and to rescind its unlawful
unilateral actions should be conditioned upon the reciprocal
obligation of the Association to end its work stoppage. This
condition is in accord with the direction of the Supreme Court
that PERB may use the various remedies at its disposal "to

foster constructive employment relations . . . including] the
longrange minimization of work stoppages." San Diego, supra,
at 13.
Therefore, the Public Employment Relations Board ORDERS that
1. The Modesto City Schools cease and desist from refusing
to meet and negotiate with the exclusive representative over
concessions and new proposals submitted following completion of
mediation and factfinding.
2. The Modesto City Schools rescind unilateral actions
changing terms and conditions of employment inconsistent with
its last, best offer.
3. The Modesto Teachers Association end its work stoppage
upon the District's statement that it is prepared to abide by
the obligations this ORDER sets forth.
By:Harry Gluck, Chairperson	, Chairperson Barbara D. Moore, Member
Member Raymond J. Gonzales' concurrence and dissent begins on
page 7.
6

Member Raymond J, Gonzales, concurring on seeking the injunctions
against the Association's strike action and against the District
from taking unilateral actions not consistent with its last, best
offer in negotiations, and dissenting on all other conclusions,
rationale and orders.
Although. I voted that PERB lacks jurisdiction over the strike,
as a member of this Board, I recognize that by majority order PERB
has taken jurisdiction. Acceding to this jurisdiction, therefore,
I vote to seek an injunction against the strike because it is an
illegal economic and political pressure tactic in violation of the
EERA. In this context, if the District is also acting improperly
under the EERA, it is appropriate to seek an injunction requiring
it to conform its conduct to the law,
I believe that the District was free to take unilateral action
to implement its last, best offer or to adopt the factfinders'
recommendations in full. It appears that the District, acting
without guidance from PERB in a totally new situation, may have
implemented some of its last offers and some of the factfinders'
recommendations. The District appeared to want scrupulously to
avoid a violation of the EERA, yet was groping in uncharted
waters. On the basis of very skimpy responses, hastily prepared
by the parties in less than a day to five searching questions
propounded by the majority, it appears that the District may have
unknowingly strayed beyond acceptable post-impasse conduct. If
so, an injunction against the District is appropriate,
However, on the basis of the very incomplete information
obtained in the cursory, brief investigation, I am unwilling to
conclude, as the majority has, that the District committed "unlawful

unilateral actions," a conclusion which is unwarranted absent
benefit of a hearing and other formalities which comprise due
process of law,
I also emphatically believe that the District need not be
subjected to having to negotiate indefinitely, and therefore do
not join in the majority's decision which seeks to order the
District to continue to meet and negotiate.
My position is that an employer may make unilateral changes
following completion of mediation and factfinding providing
such changes are consistent with its last, best offer at impasse.
If a union could resurrect the obligation to negotiate simply by
appearing to make a "concession," it could forever block the
employer from taking such lawful unilateral actions. In this
case, it appears that the Modesto District has willingly con-
tinued discussions with the Association, but has carefully attempted
to avoid resurrection of the panoply of legal obligations connected
with formal negotiations,
I am greatly disturbed by the majority's conclusion that:
To protest the employer's apparent refusal to
negotiate in good faith the Association
thereafter engaged in a work stoppage. This
work stoppage is not per se prohibited by EERA.
[Citation omitted,] Rather, the work stoppage
appears to be a protected response to an
employer's unfair practices. [Emphasis added.]
They are doing administratively what no California Legislature
or court has ever done: ruled that a public employee strike is
a "protected activity." The EERA surely does not do this. Among
the rights granted public school employees in the EERA, the right
to engage in concerted activities is conspicuously absent. Further
underlining this omission, section 3549, declares that section 923
8

of the Labor Code, generally recognized as granting the right
to strike in the private sector, shall not be applicable to
public school employees. Nor does any other California statute
declare public strikes to be "protected activity,"
The majority cites the NLRA as authority for this legalization
of the school strike. Does this now mean that the majority will
treat public school employee strikes in the same way the NLRB
regards private sector strikes, where they are specifically
sanctioned, and indeed "protected" by the NLRA?
My approach in these matters has always been that two wrongs
do not make a right. The strike is illegal and should be enjoined.
If District conduct is also illegal, then it also should be enjoined.
One illegal conduct by one party does not legalize conduct by
another which is otherwise illegal.
Finally, I am gratified that my fellow Board members have seen
the rightness of deciding to join me in voting to bring an end to
this strike. No amount of sophistry can obscure the fact that the
Association has led the teachers on strike to pressure the District
into granting concessions that the Association was unable to
achieve in negotiations and impasse procedures. Our action today
will end that strike and send a clear message that the strike by
public school teachers is not an acceptable economic and political
weapon to use in a public school employment dispute, that it does
not promote effective employer-employee relations, and that it is
deleterious to the public welfare.
Raymond J. Gonzales