Fresno Unified School District (PERB 0156E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FRESNO UNIFIED SCHOOL DISTRICT,
Charging Party,
v . 	Case No. S-CO-33
FRESNO TEACHERS ASSOCIATION, 	PERB Decision No. 156
CTA/NEA,
December 31, 1980
Respondent.
Appearances: 	James C. Romo, Attorney (Paterson & Taggart) for
Fresno Unified School District; Ernest H. Tuttle III, Attorney
(Tuttle & Tuttle) for Fresno Teachers Association, CTA/NEA.
Before Gluck, Chairperson; Moore, Member
DECISION
This case comes before the Public Employment Relations
Board (hereafter PERB or Board) on a request by the charging
party, the Fresno Unified School District (hereafter District) ,
that the Board affirm the hearing officer's partial dismissal
of an unfair practice charge filed by the District against the
Fresno Teachers Association (hereafter Association) .
The District alleged that the Association struck in the
face of a contractual provision against strikes and that this
conduct violated section 3543.6 (b) and (c) of the Educational
STATE 	OF 	CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
FRESNO 	UNIFIED 	SCHOOL 	DISTRICT,
Charging 	Party,
v.
FRESNO 	TEACHERS 	ASSOCIATION,
CTA/NEA,
___________________Respondent.
)
)
)
)
)
)
)
)
)
)
)
Case 	No. 	S-C0-33
PERB 	Decision 	No. 	156
December 	31, 	1980
Appearances: 	James 	C. 	Romo, 	Attorney 	(Paterson 	& 	Taggart) 	for
Fresno 	Unified 	School 	District; 	Ernest 	H. 	Tuttle 	III, 	Attorney
(Tuttle 	& Tuttle} 	for 	Fresno 	Teachers 	Association, 	CTA/NEA.
Before 	Gluck, 	Chairperson; 	Moore, 	Member
DECISION
This 	case 	comes 	before 	the 	Public 	Employment 	Relations
Board 	(hereafter 	PERB 	or 	Board) 	on 	a 	request 	by 	the 	charging
party, 	the 	Fresno 	Unified 	School 	District 	(hereafter 	District),
that 	the 	Board 	affirm 	the 	hearing 	officer's 	partial 	dismissal
of 	an 	unfair 	practice 	charge 	filed 	by 	the 	District 	against 	the
Fresno 	Teachers 	Association 	(hereafter 	Association).
The 	District 	alleged 	that 	the 	Association 	struck 	in 	the
face 	of 	a 	contractual 	provision 	against 	strikes 	and 	that 	this
conduct 	violated 	section 	3543.6(b) 	and 	(c) 	of 	the 	Educational

Employment Relations Act (hereafter EERA or Act) . 1 The
hearing officer dismissed without leave to amend that portion
of the District's charge which alleged that a strike in
violation of a collectively negotiated no-strike clause is an
unfair practice. The hearing officer also dismissed without
leave to amend those paragraphs in the District's prayer that
(1) sought a posting order "to the effect that Respondents have
violated a valid collective bargaining agreement in violation
of the Act, " and (2) sought money damages for breach of
contract. These dismissals were made on the grounds that PERB
has no jurisdiction to enforce agreements between the
parties. 2
The EERA is codified at Government Code 3540 et seq.
Unless otherwise noted, all statutory references are to the
Government Code.
Section 3543.6 (b) and (c) provide:
It shall be unlawful for an employee
organization to:
.
(b) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(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.
2section 3541.5 (b) provides:
(b) The board shall not have authority to
enforce agreements between the parties, and
2
Employment
	Relations
	Act
	(hereafter
	EERA
	or
	Act)
.1	
The
hearing
	officer
	dismissed 	without 	leave
	to
	amend
	that
	portion
of
	the
	District's
	charge
	which
	alleged
	that
	a
	strike
	in
violation
	of
	a
	collectively
	negotiated
	no-strike
	clause
	is
	an
unfair
	practice.
	The
	hearing
	officer
	also
	dismissed 	without
leave 	to	
amend	
those 	paragraphs
	in 	the
	District's
	prayer
	that
(1)
	sought
	a
	posting 	order
	"to
	the
	effect 	that
	Respondents 	have
violated
	a
	valid
	collective
	bargaining
	agreement
	in
	violation
of	
the	
Act,"	
and	
(2)	
sought	
money 	damages
	for
	breach
	of
contract.
	These	
dismissals	
were	
made 	on	
the
	grounds	
that
	PERB
has
	no
	jurisdiction
	to	
enforce 	agreements
	between
	the
parties.2
lThe	
EERA
	is
	codified
	at
	Government	
Code 	3540
	et	
seq.
Unless
	otherwise 	noted,
	all
	statutory
	references 	are 	to 	the
Government 	Code.
Section
	3543.6(b)
	and 	(c)
	provide:
It
	shall
	be
	unlawful 	for
	an 	employee
organization 	to:
(b} 	Impose
	or
	threaten 	to
	impose
	reprisals
on 	employees,
	to 	discriminate 	or
	threaten 	todiscriminate 	against
	employees, 	or 	otherwise
to 	interfere
	with,
	restrain,
	or 	coerce
employees 	because
	of
	their 	exercise 	of
rights
	guaranteed
	by
	this
	chapter.
(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.
2
section
	3541.S(b) 	provides:
(b) 	The 	board
	shall 	not 	have 	authority 	toenforce 	agreements 	between 	the 	parties,
	and
2

The District appeals this partial dismissal, urging the
Board itself "to affirm the Hearing Officer's decision in all
particulars." 	(Emphasis added. ) The District filed its
request under PERB rule 32630 (b) , 3 which provides that a
charging party may file an appeal of a dismissal with the Board
itself.
As we noted in Palos Verdes Peninsula Unified School
District/Pleasant Valley School District (7/16/79) PERB
Decision No. 96, "It is well-recognized in civil matters, while
a party may not ordinarily appeal a judgment in its favor, an
appeal is proper if the judgment apparently in a party's favor
is actually against that party."
In this case, the District requests that the Board affirm
the hearing officer's decision in all particulars. Unlike the
shall not issue a complaint on any charge
based on alleged violation of such an
agreement that would not also constitute an
unfair practice under this chapter.
3PERB rules are codified at California Administrative
Code, title 8, section 31000 et seq. PERB rule 32630 (b)
provides in pertinent part:
(b) The charging party may . 	(2) file
an original and four copies of an appeal of
the refusal with the Board itself within 20
days following service. The appeal shall be
filed with the Executive Assistant to the
Board and shall be in writing, signed by the
party or its agent, and contain the facts
and arguments upon which the appeal is
based. Service and proof of service of the
appeal pursuant to section 32140 are
required.
W
shall 	not 	issue 	a 	complaint 	on 	any 	charge
based 	on 	alleged 	violation 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice 	under 	this 	chapter.
The 	District 	appeals 	this 	partial 	dismissal, 	urging 	the
Board 	itself 	"to 	affirm 	the 	Hearing 	Officer's 	decision 	in 	all
particulars." 	(Emphasis 	added.) 	The 	District 	filed 	its
request 	under 	PERB 	rule 	32630(b) ,3 	which 	provides 	that 	a
charging 	party may 	file 	an 	appeal 	of 	a 	dismissal 	with 	the 	Board
itself.
As 	we 	noted 	in 	Palos Verdes 	Peninsula 	Unified 	School
District/Pleasant 	Valley 	School 	District 	(7/16/79} 	PERB
Decision 	No. 	96, 	"It 	is 	well-recognized 	in 	civil 	matters, 	while
a 	party may 	not 	ordinarily 	appeal 	a 	judgment 	in 	its 	favor, 	an
appeal 	is 	proper 	if 	the 	judgment 	apparently 	in 	a 	party's 	favor
is 	actually 	against 	that 	party."
In 	this 	case, 	the 	District 	requests 	that 	the 	Board 	affirm
the 	hearing 	officer's 	decision 	in 	all 	particulars. 	Unlike 	the
3PERB 	rules 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31000 	et 	seq. 	PERB 	rule 	32630(b)
provides 	in 	pertinent 	part:
(b) 	The 	charging 	party may 	... 	(2) 	file
an 	original 	and 	four 	copies 	of 	an 	appeal 	of
the 	refusal 	with 	the 	Board 	itself 	within 	20
days 	following 	service. 	The 	appeal 	shall 	be
filed 	with 	the 	Executive 	Assistant 	to 	the
Board 	and 	shall 	be 	in 	writing, 	signed 	by 	the
party 	or 	its 	agent, 	and 	contain 	the 	facts
and 	arguments 	upon 	which 	the 	appeal 	is
based. 	Service 	and 	proof 	of 	service 	of 	the
appeal 	pursuant 	to 	section 	32140 	are
required.
3

appellant in Palos Verdes, who disagreed with the hearing
officer's rationale but did not dispute the order, the District
in this case has not alleged that it is aggrieved by any
portion of the dismissal or otherwise demonstrated that the
decision will be one of adverse impact. The District in fact
agrees with the dismissal in all respects. Thus, there is no
dispute or other justiciable controversy before the Board.
Under these circumstances, the Board will not review the
hearing officer's dismissal of part of the District's unfair
practice charges.
The Board therefore dismisses the District's appeal and in
so doing, makes no judgment on the merits of the hearing
officer's decision.
ORDER
The Fresno Unified School District's appeal of the partial
dismissal of its charges in Unfair Practice Case No. S-CO-33 is
DISMISSED.
PER CURIAM
appellant 	in 	Palos 	Verdes, 	who 	disagreed 	with 	the 	hearing
officer's 	rationale 	but 	did 	not 	dispute 	the 	order, 	the 	District
in 	this 	case 	has 	not 	alleged 	that 	it 	is 	aggrieved 	by 	any
portion 	of 	the 	dismissal 	or 	otherwise 	demonstrated 	that 	the
decision 	will 	be 	one 	of 	adverse 	impact. 	The 	District 	in 	fact
agrees 	with 	the 	dismissal 	in 	all 	respects. 	Thus, 	there 	is 	no
dispute 	or 	other 	justiciable controversy 	before 	the 	Board.
Under 	these 	circumstances, 	the 	Board 	will 	not 	review 	the
hearing 	officer's 	dismissal 	of 	part 	of 	the 	District's 	unfair
practice 	charges.
The 	Board 	therefore 	dismisses 	the 	District's 	appeal 	and 	in
so 	doing, 	makes 	no 	judgment 	on 	the 	merits 	of 	the 	hearing
officer's 	decision.
OROOR
The 	Fresno 	Unified 	School 	District's 	appeal 	of 	the 	partial
dismissal 	of 	its 	charges 	in 	Unfair 	Practice 	Case 	No. 	S-C0-33 	is
DISMISSED.
PER CURIAM
4