Sacramento City Unified School District (PERB 0216E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
SERVICE
	EMPLOYEES
	INTERNATIONAL
	UNION,
LOCAL
	22/SACRAMENTO
	ASSOCIATION
	OF
CLASSIFIED
EDUCATIONAL
	EMPLOYEES,
Charging
	Party,
V •
SACRAMENTO
	CITY 	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
______________________
)
Case
	No. 	S-CE-121
PERB
	Decision
	No. 	216
June 	28,
	1982
Appearances: 	Robert
	J.
	Bezemek,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg	
&	
Roger)
	for 	Service
	Employees
	International
	Union,
Local 	22/Sacramento
	Association 	of
	Classified
	Educational
Employees;
	Clifford
	D.
	Weiler, 	Attorney
	(Brown 	&	
Conradi)
	for
the
	Sacramento
	City Unified
	School
	District.
Before 	Tovar, 	Jaeger
	and
	Jensen,
	Members.
DECISION
The
	Sacramento
	City 	Unified 	School
	District 	(District)
excepts 	to 	the 	hearing
	officer's
	proposed
	decision, 	attached
hereto,
	which
	finds 	that
	the
	District
	violated 	subsection
3543.S(c)
	of 	the 	Educational
	Employment
	Relations
	Act
	(EERA)l
by
	unilaterally 	altering
	its
	policy
	on
	paid 	leave 	time.
	For
the 	reasons
	set 	forth
	below,
	the 	Public
	Employment
	Relations
Board
	(PERB
	or
	Board)
	affirms 	the 	hearing
	officer's
	conclusion.
1The
	EERA
	is 	codified 	at 	section
	3540
	et
	seq. 	of 	theGovernment 	Code. 	Unless 	otherwise 	indicated, 	all 	statutoryreferences 	are 	to 	the 	Government 	Code.

FACTS
The
	Board
	has 	reviewed
	the
	evidentiary
	record 	in
	this
case.
	We
	conclude
	that
	the
	findings 	of
	fact
	set
	forth
	by
	the
hearing
	officer
	in 	the
	proposed
	decision 	are 	free
	from
prejudicial 	error
	and
	therefore
	adopt
	those
	findings
	as
	the
findings
	of 	the
	Board
	itself.
DISCUSSION
The
	hearing
	officer
	found
	that
	the
	District
	board
	of
education,
	by
	adopting 	Resolution
	No.
	552
	notwithstanding 	the
exclusive
	representative's
	demand
	to
	meet
	and
	negotiate,
unilaterally
	changed
	its
	policy
	on
	paid 	leave 	time,
	which
	is
	a
subject
	specifically 	listed
	in
	section
	3543.22	
of
	EERA	
as
2
section
	3543.2 	provides
	as
	follows:
(a} 	The
	scope
	of
	representation
	shall
	be
limited 	to 	matters
	relating 	to
	wages, 	hours
of
	employment, 	and
	other
	terms
	and
conditions	
of	
employment. 	"Terms 	and
conditions 	of
	employment" 	mean
	health	
and
welfare 	benefits
	as 	defined
	by
	Section53200,
	leave, 	transfer
	and
	reassignment
policies, 	safety conditions 	of
	employment,
class 	size,
	procedures 	to
	be
	used
	for 	the
evaluation 	of
	employees,
	organizational
security
	pursuant 	to 	Section 	3546,procedures 	for 	processing 	grievances
pursuant 	to Sections 	3548.5, 	3548.6, 	3548.7,and
	3548.8,
	and
	the 	layoff 	of 	probationary
certificated	
school	
district	
employees,
pursuant 	to 	Section
	44959.5	
of
	the 	EducationCode. 	In
	addition, 	the 	exclusive
representative 	of 	certificated
	personnel	
has
the	
right 	to 	consult
	on 	the	
definition 	of
2

being 	within 	the 	scope 	of 	representation. 	Based 	on 	that
finding, 	he 	concluded 	that 	the 	District 	had 	violated 	subsection
3543.S{c), 	which 	provides 	that 	it 	is 	unlawful 	for 	a 	public
school 	employer 	to 	"[r]efuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative."
educational 	objectives, 	the 	determination 	of
the 	content 	of 	courses 	and 	curriculum, 	and
the 	selection 	of 	textbooks 	to 	the 	extent
such 	matters 	are 	within 	the 	discretion 	of
the 	public 	school 	employer 	under 	the 	law.
All 	matters 	not 	specifically 	enumerated 	are
reserved 	to 	the 	public 	school 	employer 	and
may 	not 	be 	a 	subject 	of 	meeting 	and
negotiating, 	provided 	that 	nothing 	herein
may 	be 	construed 	to 	limit 	the 	right 	of 	the
public 	school 	employer 	to 	consult 	with 	any
employees 	or 	employee 	organization on 	any
matter 	outside 	the 	scope 	of 	representation.
(b) 	Notwithstanding 	Section 	44944 	of 	the
Education 	Code, 	the 	public 	school 	employer
and 	the 	exclusive 	representative 	shall, 	upon
request 	of 	either 	party, 	meet 	and 	negotiate
regarding 	causes 	and 	procedures 	for
disciplinary 	action, 	other 	than 	dismissal,
affecting 	certificated 	employees. 	If 	the
public 	school 	employer 	and 	the 	exclusive
representative 	do 	not 	reach 	mutual
agreement, 	then 	the 	provisions 	of 	Section
44944 	of 	the 	Education Code 	shall 	apply.
(c) 	Notwithstanding 	Section 	44955 	of 	the
Education Code, 	the 	public 	school 	employer
and 	the 	exclusive 	representative 	shall 	upon
request 	of 	either 	party, 	meet 	and 	negotiate
regarding 	procedures 	and 	criteria 	for 	the
layoff 	of 	certificated 	employees 	for 	lack 	of
funds. 	If 	the 	public 	school 	employer 	and
the 	exclusive 	representative 	do 	not 	reach
mutual 	agreement, 	then 	the 	provisions 	of
Section 	44955 	of 	the 	Education Code 	shall
apply.
3

On 	exceptions, 	the 	District 	argues 	that 	the 	charging 	party,
Service Employees 	International 	Union, 	Local 	22, 	Sacramento
Association 	of 	Classified Educational 	Employees 	(Local 	22),
never 	directed 	its 	charges 	at 	the 	violation 	of 	subsection
3543.S(c) 	as 	found 	by 	the 	hearing 	officer 	and 	that 	the 	hearing
officer 	therefore 	acted 	improperly 	in 	addressing 	this 	matter
sua 	sponte.
In making 	this 	argument, 	the 	District 	ignores 	Sacramento
City Unified 	School 	District 	(8/14/79), 	PERB 	Decision No. 	100,
the 	procedural 	predecessor 	to 	the 	instant 	decision. 	In
deciding 	that 	appeal, 	the 	Board 	expressly 	held 	that 	the 	charges
filed 	by 	Local 	22 	properly 	alleged 	a 	violation 	of 	subsection
3543.S(c). 	The 	Board 	framed 	the 	issue 	as 	follows:
The 	hearing 	officer 	found 	that 	no 	prima
facie 	violation 	of 	section 	3543.S(c) 	was
stated 	because 	the 	District's 	failure 	to
meet 	and 	negotiate 	with 	Local 	22 	did 	not
cause 	the 	injury 	complained 	of. 	Yet 	the
failure 	and 	refusal 	to 	meet 	and 	negotiate 	is
itself 	the 	evil 	the 	statute 	seeks 	to
prevent. 	A refusal 	to 	meet 	and 	negotiate
charge 	may 	be 	based 	upon 	an 	employer's
unilateral 	change 	of 	wages, 	hours 	or 	other
terms 	and 	conditions 	of 	employment.
[Citations 	omitted.] 	Local 	22 	charges 	and
the 	District 	admits 	that 	it 	unilaterally
adopted 	and 	implemented 	emergency
regulations. 	Since 	a 	prima 	facie 	case 	is
stated, 	the 	hearing 	officer's 	dismissal 	of
the 	section 	3543.S(c) 	charge 	is 	reversed.
The 	District 	filed 	a 	request 	for 	reconsideration 	of
Decision No. 	100, 	which 	the 	Board 	denied 	on 	October 	5, 	1979.
Having 	fully 	litigated 	this 	question, 	the 	District 	should 	not
now 	be 	heard 	to 	argue 	that 	the 	subsection 	3543.S(c) 	charge 	was
not 	properly 	before 	the 	hearing 	officer.
4

The
	District
	excepts 	to
	the 	hearing
	officer;s
	finding
	that
the
	adoption 	of 	Resolution
	No. 	552
	constituted
	a
	change
	in
	its
existing
	leave
	policy.
	In
	its
	statement
	of
	exceptions
	the
District
	contends
	that
	it
	"was
	merely
	attempting
	to
	inform
employees
	of 	the
	preexisting
	normal
	procedures.
	[Transcript
citation
	omitted.]
	The
	resolution
	was,
	therefore,
	essentially
an
	information
	bulletin
••••
"
The
	District's
	description
	of 	Resolution
	No. 	552
	is
	not
accurate.
	The
	old
	policy
	listed,
	in
	addition 	to
	the 	employee's
illness
	or
	injury, 	six 	different
	"personal 	necessity"
	purposes
for
	which
	paid 	leave
	would 	be
	authorized. 	Resolution
	No. 	552
eliminated 	five 	of 	these 	purposes,
	authorizing 	paid 	leave
	on
	a
"personal 	necessity" 	basis
	only 	for 	reasons 	of
	death,
	injury
	or
illness
	of
	an 	immediate
	family
	member
	or 	because
	of 	accident
involving 	the 	property
	of
	an 	employee
	or 	family
	member. 	Even
this	
purpose	
was
	restricted
	from
	its
	previous
	form
	in
	that
death,
	illness
	or 	property
	loss
	of
	relatives
	outside 	the
immediate
	family 	or 	close 	friends
	was
	eliminated 	as
	an
acceptable 	excuse.
	The
	District's
	argument	
that 	the 	adoption
of
	Resolution	
No. 	552
	did 	not
	effect
	a 	change
	in 	leave
	policy
is 	plainly	
without	
merit.
The	
District	
argues 	that	
even
	if	
the 	adoption
	of 	Resolution
No. 	552
	constituted
	a
	unilateral
	change 	in
	a
	subject 	within 	the
scope 	of 	representation,
	no
	violation 	of 	the
	EERA
	should 	be
found 	because 	circumstances 	of 	operational 	necessity 	excused
5

the 	District 	from 	the 	usual 	obligation 	to 	negotiate 	such
changes, 	citing 	NLRB 	v. 	~atz 	(1962), 	369 	U.S. 	736 	[50 	LRRM
2177].3
The 	Board 	has 	previously 	considered 	defenses 	of 	"necessity"
or 	"emergency" 	in 	the 	context 	of 	economic 	difficulties 	facing 	a
public 	school 	employer. 	See, 	e.g., 	San 	Mateo 	County 	Community
College 	District 	(6/8/79), 	PERB 	Decision 	No. 	94; 	San 	Francisco
Community 	College 	District 	(10/12/79), 	PERB 	Decision 	No. 	105;
Sutter 	Union 	High 	School 	District 	(10/7/81), 	PERB 	Decision
No. 	175. 	More 	recently, 	the 	Board 	dealt 	with 	an 	asserted
defense 	of 	"necessity" 	in much 	the 	same 	context 	as 	presented
here. 	See 	Barstow 	Unified 	School 	District 	(6/11/82), 	PERB
Decision 	No. 	215. 	The 	District's 	argument 	here 	is 	that, 	where
unprotected 	employee 	activity 	obstructs 	or 	clearly 	threatens 	to
obstruct 	a 	public 	school 	district's 	publicly 	mandated 	mission
of 	maintaining 	the 	continuity 	of 	the 	educational 	process,
unilateral 	district 	action 	affecting 	subjects 	within 	the 	scope
of 	representation 	is 	not 	unlawful 	where 	it 	is 	necessary 	to
avert 	the 	interruption of 	educational 	service.
3rn 	that 	case 	the 	United 	States 	Supreme 	Court 	upheld 	an
employee 	organization's 	charge 	that 	the 	employer 	had 	acted
unlawfully 	in 	making 	unilateral 	changes 	in 	certain 	terms 	and
conditions 	of 	employment. 	The 	Court 	noted:
While 	we 	do 	not 	foreclose 	the 	possibility
that 	there 	might 	be 	circumstances 	which 	the
Board 	could 	or 	should 	accept 	as 	excusing 	or
justifying 	unilateral 	action, 	no 	such 	case
is 	presented 	here. 	[NLRB 	v. 	Katz, 	su:erc!, 	at
7 48.]
6

While
	the
	argument
	presented
	by
	the
	District
	is
	an
important
	one
	for
	California
	public
	education,
	this
	case
presents
	no
	opportunity 	to
	reach
	it.
	The
	District
	claims
	that
its
	change
	in 	the 	leave
	policy
	was
	necessary
	to 	avert
	a
	serious
threat
	of
	interruption
	of
	educational
	services.
	Yet
	assuming,
arguendo,
	that
	such
	a
	threat
	was
	apparent,
	no
	factual
foundation 	has
	been
	presented
	to
	demonstrate
	that
	the
District's
	action
	served
	to
	reduce
	that
	threat.
	As
	noted
above,
	the
	District
	policy
	prior
	to
	the 	adoption 	of 	Resolution
No. 	552
	provided
	that
	"sick
	leave 	for 	personal 	necessity"
	could
be
	used
	for
	six
	enumerated
	purposes,
	which
	may 	be
	summarized
	as
follows:
	(1)
	death, 	accident
	or
	illness
	of
	an
	employee's
family
	member,
	relative
	or 	close 	friend,
	or 	for 	property
	loss
of 	the
	same; 	(2)
	inability
	to 	get 	to 	the 	employee's
	assigned
work
	place;
	(3)
	participation
	as
	a
	subpoenaed
	party	
in
litigation:
	(4) 	weddings
	or 	other
	ceremonies 	for 	family
members; 	(5)
	to 	attend 	to
	necessary
	legal 	or 	business 	matters;
and 	(6)
	to
	take 	examinations 	or
	training
	activities
	necessary
for
	performance	
of
	the 	employee's 	job.	
That	
policy 	also
provided
	that:
Sick 	leave 	for	
personal 	necessity
	may
	NOT	
be
used	
for
	any	
of 	the 	following:
	••.
engaging 	in
	a
	strike,	
demonstration,
picketing, 	lobbying,
	rally,
	march, 	campaign
meeting, 	or 	any
	other	
activities 	related 	to
work	
stoppage 	or	
political
	campaigning.
[Emphasis 	in 	the	
original.]
7

The
	effect
	of 	Resolution
	No. 	552
	was,
	inter
	alia,
	to
eliminate
	all
	of 	the
	above-enumerated 	uses
	of 	"personal
necessity 	sick
	leave" 	except 	the
	first,
	which
	was
	only
partially 	restricted.
	Given
	the
	existing
	express
	admonition
that
	"sick
	leave 	for 	personal
	necessity
	may
	NOT
	be
	used
	for
••.
	work
	stoppage
	•••
	,"
	it
	is
	unclear
	how
	the
	District
expected 	the
	withdrawal 	of 	paid 	leave 	for
	employee
	attendance
at
	weddings,
	court
	proceeding,
	and
	the
	like
	to 	operate
	to 	avert
a 	work
	stoppage
	which 	would
	otherwise 	occur.
	In
	any
	event,
	the
District
	has
	not 	demonstrated
	to 	this
	Board
	that
	the
	continuity
of 	educational 	services
	could 	not
	have 	been
	preserved 	without
unilaterally 	restricting
	its
	leave
	policy
	as
	it
	did.
REMEDY
The
	Board 	has	
reviewed
	the
	remedy
	proposed
	by
	the 	hearing
officer,
	and
	affirms 	those 	measures. 	Thus,
	the
	District 	will
be
	ordered	
to 	cease
	and
	desist
	from
	violating	
subsection
3543.S{c) 	by
	unilaterally
	changing
	its
	sick
	leave 	policy 	or
	any
other 	matter 	within 	the
	scope
	of 	representation,
	and
	to 	post
	a
notice	
incorporating 	the
	terms	
of 	that 	Order.
ORDER
Upon	
the 	foregoing 	findings 	of 	fact,
	conclusions 	of 	law,
and
	the	
entire	
record	
in 	this 	case,	
and	
pursuant 	to
	Government
Code
	subsection 	3541.S(c) 	of 	the 	Educational	
Employment
Relations 	Act,	
it
	is	
hereby
	ORDERED
	that 	the 	Sacramento City
Unified 	School
	District
	and
	its 	representatives 	shall:
8

A.
	CEASE
	AND
	DESIST
	FROM:
1.
	Violating
	Government
	Code
	subsection
	3543.S(c)
	by
taking
	unilateral
	action
	with
	respect 	to
	employee
	leave
policies
	or
	other 	matters 	within
	the
	scope
	of
	representation
	as
defined
	by Government
	Code
	section
	3543.2.
2. 	Giving
	any
	force
	and
	effect
	to
	Board
	of 	Education
Resolution
	No.
	552,
	unless
	and
	until
	it
	has
	provided
	to 	the
exclusive
	representative(s)
	of
	affected
	employees
	an
opportunity 	to
	meet
	and
	negotiate
	regarding 	the
	effects
	of
	that
resolution
	on
	matters 	within
	the
	scope
	of
	representation.
B.
	TAKE 	THE
	FOLLOWING
	AFFIRMATIVE ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	ACT:
1.
	Within
	five
	(5)
	workdays
	of 	the 	date
	of
	service 	of
this
	Decision, 	post
	at
	all
	locations
	where
	notices 	to
classified
	employees
	customarily 	are 	placed, 	copies 	of
	the
Notice 	attached
	as
	Appendix
	A
hereto,
	signed 	by	
an
	authorized
agent 	of 	the
	employer.
	Such
	posting
	shall
	be
	maintained 	for
	a
period 	of
	thirty
	(30)
	workdays. 	Reasonable
	steps 	shall
	be
taken
	to 	insure 	that
	the
	notices 	are 	not 	reduced 	in
	size,
altered,
	defaced 	or 	covered 	with
	any
	other 	material.
2. 	Within
	five
	(5) 	workdays
	following 	service 	of 	this
Decision, 	notify 	the 	Sacramento 	Regional 	Director 	of 	the 	Public
Employment
	Relations
	Board
	in 	writing 	of
	what
	steps 	the
employer 	has 	taken 	to
	comply with 	the 	terms 	of 	this
	Order.
Continue 	to 	report 	in 	writing 	to 	the 	regional 	director
9

periodically 	thereafter
	as
	directed.
	All 	reports 	to 	the
Regional
	Director
	shall
	be
	served
	concurrently
	on
	Charging
Party 	herein.
C.
	All
	other 	charges
	filed
	against
	the
	Sacramento
	City
Unified
	School
	District
	in
	Case
	Number
	S-CE-121
	are 	hereby
DISMISSED.
This 	order
	shall
	become
	effective
	immediately
	upon
	service
of
	a
	true
	copy
	thereof
	on
	the
	Sacramento
	Unified
	School
District.
By:
	Irene
	Tovar,
	Member
I
10
Jonn
W•	
Jaeger,
	Member
Virgil Jensen, Member

Appendix
	A
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-CE-121,
Service
	Employees
	International
	Union,
	Local 	22/Sacramento
Association 	of
	Classified
	Educational
	Employees
	v.
	Sacramento
City
	Unified
	School
	District,
	in
	which
	all
	parties
	had
	the
right
	to
	participate,
	it
	has 	been 	found
	that
	the
	Sacramento
City
	Unified
	School
	District
	violated
	subsection
	3543.S(c)
	of
the 	Educational
	Employment
	Relations
	Act
	by
	unilaterally
changing
	its
	sick
	leave 	policy
	on
	April
	27, 	1978.
As 	a
	result	
of	
this
	conduct,
	we
	have 	been
	ordered
	to 	post
this
	Notice
	and
	we
	will
	abide
	by
	the 	following:
A.
	CEASE
	AND
	DESIST
	FROM:
1. 	Violating
	Government 	Code
	subsection
	3543.S(c)
	by
taking
	unilateral
	action
	with
	respect 	to
	employee
leave
	policies
	or 	other 	matters 	within 	the 	scope
of
	representation
	as 	defined 	by
Government 	Code
section
	3543.2.
2.
	Giving	
any
	force	
and
	effect
	to
	Board	
of 	Education
Resolution
	No.
	552,
	unless
	and
	until
	it
	has
provided
	to
	the	
exclusive 	representative(s) 	ofaffected
	employees 	an
	opportunity 	to
	meet 	and
negotiate 	regarding 	the
	effects
	of 	that	
resolution
on
	matters 	within 	the 	scope 	of 	representation.
B.
	TAKE 	THE 	FOLLOWING	
AFFIRMATIVE ACTIONS 	DESIGNED
	TO
EFFECTUATE	
THE	
POLICIES	
OF 	THE	
ACT:
1.	
Within	
five
	(5) 	workdays
	of 	the 	date 	of 	service 	of
this 	decision, 	post 	at 	all 	locations
	where
	notices
1

to
	classified
	employees
	customarily 	are
	placed,
copies 	of
	this
	Notice.
	Such
	posting
	shall
	be
maintained 	for
	a
	period
	of
	thirty
	(30)
	workdays.
DATED:	
SACRAMENTO
	CITY UNIFIED
	SCHOOL
	DISTRICT
By------------------
Authorized
	Agent
THIS 	IS
	AN	
OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN POSTED 	FOR	
30
WORKDAYS 	FROM THE 	DATE 	OF	
POSTING	
AND	
MUST 	NOT 	BE 	REDUCED 	IN
SIZE, 	DEFACED, 	ALTERED 	OR COVERED	
BY ANY	
MATERIAL.
2

PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF
	THE
	STATE
	OF
	CALIFORNIA
SERVICE
	EMPLOYEES
	INTERNATIONAL 	UNION,
LOCAL
	22/SACRAMENTO
	ASSOCIATION
	OF
CLASSIFIED
	EDUCATIONAL
	EMPLOYEES,
Charging
	Party,
V.
SACRAMENTO
	CITY
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
_____________________ )
Unfair
	Practice
Case 	No. 	S-CE-121
PROPOSED
	DECISION
(4/14/80)
Appearances: 	Robert
	J.
	Bezemek,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg 	&	
Roger)
	for
	Service
	Employees
	International
	Union,
Local 	22/Sacramento
	Association 	of
	Classified
	Educational
Employees;
	Clifford
	D.
	Weiler, 	Attorney
	(Brown 	&
Conradi)
for 	the
	Sacramento
	City 	Unified
	School
	District.
Before
	Ronald
	E.
	Blubaugh,
	Hearing
	Officer.
PROCEDURAL
	HISTORY
In
	this
	case 	an
	exclusive 	representative
	challenges 	the
refusal
	of
	a
	public
	school
	employer
	to 	grant 	personal 	necessity
leave 	to
	a 	group
	of
	employees
	who
	did not 	report
	to
	work
	on
April
	26, 	1978.
	Their
	action 	apparently
	was
	taken
	in 	concert
to 	protest 	the 	employer's
	position
	during
	negotiations.
The
	original
	charge 	in 	this
	case
was
	filed
	on
	May
	15, 	1978
by Local
	22
	of 	the 	Service
	Employees
	International
	Union
(hereafter Local 	22). 	The 	charge 	alleged 	that 	the 	Sacramento
City 	Unified 	School
	District 	(hereafter 	District)
	had violated

Government
	Code
	section
	3543.S(a)
	and 	(c)
1
by
	declaring
	a
state
	of
	emergency
	and 	denying
	to 	support
	services
	employees
"the 	personal 	business
	and
	necessity
	leave 	to
	which
	they
were
entitled."
On
	May
	22,
	1978,
	a
	hearing
	officer
	for 	the 	Public
Employment
	Relations
	Board
	(hereafter
	PERB)
	ordered
	Local
	22
to
	particularize
	its
	charge
	by
	providing
	additional 	factual
information.
	On
	June
	6,
	Local
	22
	filed
	a
	supplement
	and
particularization
	to 	the 	charge.
	On
	June 	16,
	the
	PERB
	hearing
officer
	issued
	a
	second
	order
	to
	particularize.
	On
	June 	26,
1978, 	Local
	22
	filed
	a
	response 	to 	the
	second
	order 	to
	partic-
ularize.
	On
	July
	17, 	1978,
	the 	hearing
	officer
	dismissed 	the
charge
	with 	leave 	to
	amend.
	At 	Local
	22's 	request,
	the 	hearing
officer
	construed
	an
	untimely
	filed 	third
	supplement
	to 	the
charge 	as 	an
	amendment
	in
	response 	to 	the 	July
	17
	dismissal.
On
	August 	22, 	1978,
	the hearing
	officer,
	incorporating 	the
first
	dismissal
	by
	reference, 	again 	dismissed 	the
	charge
	for
failure
	to
	state
	a
	prima
	facie
	cause
	of 	action.
	Local
	22
1 Government 	Code
	section
	3543.S(a)
	and 	(c) 	provides
	as
	follows:
It
	shall
	be unlawful
	for
	a
	public 	school 	employer
	to:
(a)
	Impose
	or 	threaten 	to
	impose
	reprisals
	on
employees, 	to 	discriminate 	or 	threaten 	to 	dis-criminate 	against
	employees,
	or 	otherwise 	to
interfere
	with,
	restrain, 	or 	coerce 	employees
because 	of 	their 	exercise 	of 	rights 	guaranteedby
	this 	chapter.
(c) 	Refuse 	or
	fail 	to meet 	and nego
	tegood
	faith 	with 	an 	exclusive 	representative.
-2-

appealed 	the 	dismissal 	and on August 	14, 	1979, 	the 	PERB
issued 	Decision No. 	100 which 	reverses 	the 	hearing 	officer
and 	directs 	that 	the 	charge 	be 	remanded 	for 	settlement 	or
hearing.
A settlement 	conference was 	conducted 	on 	October 	2, 	1979,
but 	it 	proved unsuccessful. 	On 	October 	5, 	1979, 	the 	PERB
denied 	the 	District's 	request 	for 	reconsideration 	of 	Decision
No. 	100. 	A formal 	hearing was 	conducted 	in 	Sacramento 	on
October 	18 	and October 	26, 	1979. 	The 	final 	brief was 	received
from 	the parties 	on 	February 	4, 	1980 	and 	the 	case was 	submitted.
FINDINGS 	OF 	FACT
The 	Sacramento 	City 	Unified 	School 	District 	has 	38,000
students 	who 	are 	enrolled 	in 	58 	elementary 	schools, 	11 	junior
high 	schools 	and 	seven 	senior high 	schools. 	The 	District 	is
the 	public 	school 	employer 	of 	approximately 	2,100 	regular
classified employees. 	On 	November 	18, 	1977, 	Local 	22 was
certified as 	the 	exclusive 	representative 	of 	classified
employees 	in 	an 	office, 	technical 	and business 	services 	unit
and 	an 	operations 	and 	support 	services 	unit. 	Although 	Local
22 	also 	represents 	the 	District's 	other 	classified employees,
only 	employees 	in 	the 	office, 	technical 	and business 	services
unit 	and 	the 	support 	services 	unit 	participated 	in 	the 	events
which 	gave 	rise 	to 	the 	present 	case. 	Local 	22 	maintained 	the
status 	of 	exclusive 	representative 	at 	all 	times 	relevant 	to
the 	present 	case.
-3-

In
	early
	1978,
	the
	parties
	commenced
	negotiations
	for
their
	first
	contract.
	Local
	22
	presented
	its
	opening
	proposal
at
	a
	school 	board
meeting
	on
	January
	23. 	The
	public
	response
to
	Local
	22's
	proposal
	was 	made
	at
	a
	school 	board meeting
	on
February
	6.
	On
	February
	27,
	the
	District
	made
	its
	opening
proposal.
	The
	public
	response
	to
	the
	District's
	proposal
	was
made
	at
	a
	school 	board meeting
	on
	March
	13,
	1978.
Across-the-table negotiations
	began
	on March
	9, 	1978.
At
	their
	first
	meeting,
	the
	parties
	reached
	an
	interim agree-
ment
	that
	the
	District
	would 	"meet 	and
	consult"
	with 	Local
	22
about
	any
	proposed
	change which would
	affect
	wages,
	hours
	or
working
	conditions.
	It
	was
	further
	agreed
	that
	negotiations
on
	all
	matters 	except
	salary
	and
	fringe 	benefits
	for
	1977-78
would 	be 	postponed
	until 	after
	Local
	22
	submitted
	a
	comprehen-
sive
	proposal 	to 	the
	District.
After 	four 	negotiating 	sessions,
	ranging
	in
	length
	from
four 	to 	eight
	hours 	each,
	the parties 	jointly
	declared
	impasse
and 	on March
	30,
	1978
	requested 	the
	appointment
	of
	a
	mediator.
By
	the
	time 	impasse
	was
	declared,
	it
	was
	apparent
	that 	the
parties
	were
	far 	apart
	on money. 	The
	opening
	position 	of
Local
	22 was
	for
	an
	across-the-board 	increase 	of
	$125
	per
month
	for
	all
	members
	of 	the 	negotiating 	unit.
	The
	District's
opening
	offer
	was
	for
	a 	1
	percent 	increase 	retroactive 	for 	the
full
	1977-78 	school 	year.
	By March 	30, 	the 	District
	had
raised 	its 	offer 	to
	a 	pay 	increase 	of
	5%
	percent. 	Local 	22
remained 	at 	its
	proposal 	of
	$125
	across-the-board.
-4-

-5-
Mediation 	began 	on April 	14. 	At 	the 	start 	of mediation,
the 	District 	modified 	its 	position 	to 	a 	pay 	indr.ease 	of 	5.½;
percent 	or 	$37 	across-the-board, 	whichever was 	greater. 	On
April 	17, 	the 	District 	boosted 	its 	offer 	to 	6 percent 	or 	$46
across-the-board, 	whichever was 	greater. 	Local 	22 	made 	a
counterproposal 	of 	6 percent 	or 	$75 	across-the-board, 	whichever
was 	greater. 	For 	the 	following 	weeks, 	the 	parties 	remained
with 	their modified 	positions 	and 	on 	April 	24 	the 	District's
negotiator 	informed 	Local 	22 	that 	6 	percent 	or 	$46 	across-the-
board was 	the 	District's 	best 	offer.
Militancy 	among 	the 	Local 	22 	membership 	had been 	growing
for 	some weeks 	prior 	to 	the 	April 	24 	negotiating 	session.
Before 	the 	start 	of negotiations 	between 	the 	District 	and
Local 	22, 	the 	District 	had 	reached 	an 	agreement 	with 	the
Sacramento 	City 	Teachers 	Association 	resulting 	in 	a 	6 	percent
pay 	increase 	for 	members 	of 	the 	certificated employee 	nego-
tiating 	unit. 	In 	February 	of 	1978, 	the 	District 	granted 	a
6 	percent 	pay 	increase 	to 	its 	management 	employees 	and 	in
March, 	confidential 	employees 	got 	a 	6 	percent 	pay 	increase.
Because 	6 percent pay 	increases 	already 	had been 	granted 	to
other 	District 	employees, 	members 	of 	Local 	22 	were 	annoyed
with 	all 	District 	offers 	to 	them 	of 	less 	than 	6 	percent.
Large numbers 	of 	classified 	employees 	appeared 	at 	District
school 	board meetings 	on 	April 	10, 	April 	17 	and April 	24 	to
protest 	the 	District's 	negotiating 	posture. 	During 	the 	first
-5-

week
	of April
	1978,
	Local
	22
	formed
	a
	strike
	committee.
Initially,
	the
	committee had 	about
	six
	or
	seven
	members
	but
its
	size
	grew
weekly
	and by
	April
	25
	it
	had
	approximately
	30
members.
	In
	a
	letter
	presented
	at
	the 	April
	17
	school 	board
meeting,
	the
	officers
	of
	Local
	22
	warned
	that
	unless 	the
District
	made 	a 	new
	offer 	at
	the 	April
	24
	negotiating 	session,
Local
	22
	would
	"seek
	strike
	sanction"
	from
	the
	Sacramento
Central
	Labor
	Council.
	The
	letter
	also
	states 	that
	the
officers
	"would
	have
	no
	choice"
	but 	to
	recommend
	such
	action
to 	the
	Local's
	membership.
Apparently,
	however,
	the
	Local
	22
	negotiating
	team
	already
had
	contacted 	the 	labor 	council. 	In
	a
	letter
	dated April
	14,
Thomas 	Kenny,
	the 	labor
	council's
	executive
	secretary,
	informed
District
	Superintendent
	Joseph
	Lynn
	that
	the
	Local
	22
	negotiating
team
	"has
	authorized
	a
	request 	for
	strike
	sanction
	.
	and
	is
currently 	in
	the 	process
	of 	polling
	its
	membership
	for 	concur-
rence with 	the 	negotiating
	team's
	position."
	The
	letter
informed
	the
	District 	that 	the 	executive 	board
	of
	the 	labor
council
	would
	consider 	the matter
	on
	April
	25 	and
	invited
	the
District
	to
	send
	a
	representative
	to 	present
	its
	side 	of 	the
controversy~
	The
	labor 	council 	did 	grant
	strike 	sanction 	to
Local
	22 	on
	April
	25.
On
	the 	evening 	of 	April
	25, 	some 	25
	to
	30 members
	of
Local 	22 	met 	to 	discuss 	the 	status 	of 	negotiations 	with 	the
District.
	Some
	of 	these 	persons 	were 	members
	of 	the 	negotiating
-6-

committee,
	some
	were
	members
	of
	the
	strike
	committee 	and
	some
were
	simply
	interested
members
	of
	the
	local.
	During
	the
discussion
	which
	followed,
	several
	employees
	expressed
	the
view
	that
	the
	District
	was
	not
	yet
	convinced
	that
	they
	were
not
	going
	to 	accept
	its
	last
	offer.
	By
	consensus, 	those
present
	reached
	the 	decision
	that
	they 	should
	refuse
	to
	work
the
	following
	day
	and
	claim personal
	necessity
	leave.
	The
two
	originators
	of
	this
	idea
	were
	District
	bus
	drivers.
	George
Lemasters,
	a
	bus
	driver
	who 	was
	present
	at
	the 	April
	25
	meeting,
when
	asked
	what
	conclusions
	were
	reached
	at
	the 	meeting,
testified:
Well,
	my
	conclusion
was
	that
	I
	would
	take
the 	next
	day
	off.
	And 	I
	encouraged
	every-
body
	in
my
	sight
	and
	in
	my
	hearing
	over
the
	telephone
	to
	do
	the
	same
	thing.
Mr.
	Lemasters
	said
he
	called
between
	18
	and
	20
	other
employees.
	A
total
	of 	five
	persons
	made
	calls 	that
	evening 	to
advise 	other
	employees
	about
	the
	consensus 	which 	had been
reached not 	to
	work
	the next
	day.
At
	4:30 	a.m. 	on
	April
	26,
	District 	transportation 	super-
visor
	Robert
	Hill
	received 	telephone
	calls
	from
	his
	two
assistants
	advising
	him
	that
	they
	would be 	taking 	the
	day
	off
for 	personal 	business.
	When
	he
	received 	those
	calls,
	he
"figured
	something
was
	going 	on
	because 	they have 	never
	called
in, 	both 	of
	them,
	at 	the
	same
	time, 	to be
	off."
	He
	went
	to
work 	and
	at
	6:30 	a.m.
	the 	drivers
	began
	calling 	in 	that 	they
would be 	taking 	the 	day
	off 	for 	personal 	business. 	Shortly
-7-

after
	6:30
	a.m.,
	Mr.
	Hill
	called his
	supervisor
who
	arrived
at
	7:30
	a.m.
	Mr.
	Hill
	was
	on
	the
	telephone
	that
	day
	contin-
uously
	from
	6:30
	a.m.
	to
	11:00
	a.m.
	taking
	calls,
	first
	from
drivers
	and
	then
	from
	parents.
	He
	testified
	that
	the 	telephones
became
	so
	hot
	that
	they
	literally
were
	smoking.
Several
	employees
	called 	in
	as
	being
	sick 	but
	most
	of
them
	stated 	that
	they
were
	taking 	the
	day
	off
	for
	a
	personal
necessity.
	The
	parties 	stipulated 	that
	on
	April
	26, 	1978,
both 	of 	the
	transportation
	department
	clerks
	were
	absent
	from
work,
	four 	out
	of 	the 	five
	mechanics 	were
	absent,
	all
	23
	bus
attendants
	were
	absent,
	58
	out
	of
	the
	61
	bus
	drivers
	II
	were
absent,
	all
	35
	of
	the
	bus
	drivers
	I
	were
	absent,
	two
	of 	nine
reproduction 	technicians
	were
	absent,
	all
	seven warehouse
workers
	were
	absent
	and
	all
	three 	delivery
	persons
	were
	absent.
Normally, 	about
	12
	employees 	would
	be
	absent
	fr0m
	the
	trans-
portation
	department. 	Nineteen
	of 	the
	employees
	who
	were
absent
	on
	April
	26, 	1978
	testified 	at
	the 	hearing.
	As
	to
those
	19
	employees,
	the 	parties 	stipulated 	that
	they 	each had
called 	in
	on
	the
	morning
	of April
	26,
	told
	the 	person
	who
answered
	the 	telephone
	that
	they
	would
	not
	be
	present 	at
	work
for 	personal 	reasons
	and
	that
	the 	person
	on
	the 	other
	end
	of
the 	telephone
	either 	told
	them 	"okay"
	or
	made 	some
	acknowledge-
ment
	they had
	called.
	The 	employees 	who were 	absent
	on
April
	26
	for 	personal 	business, 	returned 	to
	work 	on
	April
	27.
As
	of April 	26, 	1978, 	the 	parties
	had 	not 	exhausted 	the
impasse 	procedures 	contained 	in 	the 	Educational 	Employment
-8-

Relations
	Act.
2
Prior
	to
	April
	26, 	1978,
	the
	District
	had
never
	had
	a
	concerted
	absence
	by
	a
	large
	number
	of
	its
employees.
A
special
	meeting
	of 	the
	District
	board
	of
	education
	was
called 	for
	5:00
	p.m.
	on
	April
	27.
	Among
	the
	items
	scheduled
for 	action
was
	Resolution
	No.
	552, 	"Emergency
	Policies
	of
	the
Sacramento
	City 	Unified
	School
	District."
	Resolution
	No. 	552
was
	written
	as
	a
	District
	response
	to
	"any
	strike,
	walk-out,
slowdown
	or
	other
	type
	of
	work
	stoppage
	by
	employees."
	The
resolution 	establishes
	emergency
	regulations
	which
	will
	go
into 	effect
	upon 	a
	declaration
	by
	the
	superintendent. 	In
relevant 	part,
	the 	regulations
	provide
	as
	follows:
3.
	LEAVE 	OF
	ABSENCE.
(a)	
PERSONAL
	BUSINESS
	LEAVE.
	No
	employee
of 	the
	district
	shall
	be
	granted
	a
leave
	of
	absence
	for 	personal 	business.
(b)	
PERSONAL
	NECESSITY
	LEAVE
	OR EMERGENCY
LEAVE.
	Personal
	necessity 	or
	emergency
leaves 	are 	authorized 	for
	district
employees
	only
	when
	the
	same
	is
	taken
due
	to:
(1) 	Death
	or 	serious
	illness
	of
	a
member
	of
	such 	employee'simmediate 	family; 	or
(2)	
Accident 	involving 	such 	employee's
person 	or 	property 	or 	the 	person
or 	property 	of
	a member
	of
	such
employee's 	immediate 	family.
2The 	impasse 	procedures 	of 	the
	EERA
	are 	set 	forth 	in Article
	9
of 	the 	statute,
	Government 	Code
	sections
	3548 	through 	3548.6.
-9-

(c) 	SICK LEAVE.
(1) 	In 	order 	to 	be 	granted 	a 	sick
leave 	for 	any 	absence 	claimed 	to
be 	due 	to 	illness 	or 	injury 	(other
than 	pursuant 	to 	an 	industrial
accident 	or 	illness 	leave), 	a
district 	employee must 	file 	with
the 	Personnel 	Office 	of 	the 	district
a 	statement 	signed by 	his 	or 	her
physician 	or medical 	advisor.
(2) 	In 	the 	event 	there 	is 	a 	suspected
concerted withdrawal 	of 	services
by 	employees, 	it 	shall 	be 	district
policy 	to 	require 	a 	physician's
certification 	from 	any 	employee who
is 	absent 	on 	the 	date 	of 	said 	sus-
pected withdrawal 	of 	the 	services
and who 	files 	a 	claim 	for 	sick 	leave
benefits 	for 	the 	absence.
(3) 	Said 	certificate must 	be 	filed
within 	five 	days 	upon 	return 	to
work. 	In 	the 	event 	a 	district
employee 	fails 	or 	refuses 	to 	furnish
said 	certificate within 	five 	days,
said 	absence 	shall 	be 	treated 	as 	and
be 	deemed 	to 	be 	unauthorized 	leave
without 	pay.
(4) 	Except 	as 	otherwise 	provided herein,
all 	of 	the 	leave 	policies 	and 	regu-
lations 	of 	the 	district 	shall 	remain
in 	full 	force 	and 	effect.
Representatives 	of Local 	22 	appeared 	at 	the 	April 	27
school 	board meeting 	and 	urged 	the 	rejection 	of 	Resolution
No. 	552. 	A letter 	given 	to 	the 	board by 	the 	union's 	repre-
sentatives 	called 	the 	resolution 	'~othing more 	than 	coercion
and 	retribution 	against 	employees 	who 	exercised 	collective
action 	on 	their 	own behalf 	against 	this 	school 	district."
The 	letter 	demands 	that 	the 	District meet 	and 	negotiate 	about
the 	contents 	of 	the 	resolution 	prior 	to 	its 	adoption. 	A
-10-

representative 	of 	the 	Sacramento 	City 	Teachers 	Association,
the 	exclusive 	representative 	of 	certificated 	employees, 	also
appeared 	to 	oppose 	the 	resolution.
Following 	the 	statements 	from 	representatives 	of 	Local
22 	and 	the 	teachers 	association, 	the board 	of 	education went
into 	executive 	session. 	Approximately 	20 	minutes 	later, 	the
board 	returned 	to 	the 	public 	session, 	amended 	Resolution
No. 	552 	so 	that 	it would 	apply 	only 	to 	classified 	employees
ahd then 	adopted 	it. 	In 	conjunction with 	its 	adoption 	of 	the
resolution, 	the 	school 	board 	declared 	a 	state 	of 	emergency
retroactive 	to 	April 	26. 	By 	its 	retroactive 	declaration 	of
emergency 	the 	school 	board 	sought 	to 	make 	the 	regulations
contained 	in Resolution 	No. 	552 	retroactive 	to 	April 	26.
On 	April 	28, 	the 	District 	superintendent 	sent 	a 	message
to 	all 	classified 	employees 	summarizing 	the 	action 	of 	the
school 	board 	and 	stating 	the 	District's 	position 	in 	negotia-
tions. 	In 	relevant 	part, 	that 	Apr£1 	28 	communication 	reads
as 	follows:
All 	classified employees 	should be 	aware 	that:
(1) 	Strikes 	by 	public 	employees 	are 	illegal;
(2) 	Each 	employee 	is 	personally 	responsible
for 	his/her 	decisions, 	actions, 	and
conduct 	during 	this 	state 	of 	emergency;
(3) 	Full 	salary 	deduction will 	be made 	for
each 	day 	of 	unauthorized 	absence.
Beginning April 	26, 	1978, 	absences 	of
classified 	employees 	(excluding manage-
ment, 	supervisory, 	and 	confidential)
are 	authorized 	only 	if 	the 	following
conditions 	are met:
-11-

SICK
	LEAVE:	
A
physician's
	statement
will
	be
	required 	for
	any 	one
	or
	more
days
	of
	absence 	charged
	to
	sick
	leaveduring
	the
	state
	of
	emergency.
	Such
statement
	must
	be
	filed
	with
	thePersonnel 	Services 	Office within
	five
(5) 	days
	following
	return
	to
	work.
In 	the
	event
	an
	employee
	fails
	or
refuses 	to 	furnish
	such
	certification
of
	illness
	or 	accident
	with
[sic] five
	(5)
days,
	said
	absence(s)
	shall
	be
	treated
as
	unauthorized 	leave without
	pay.
PERSONAL
	BUSINESS
	LEAVE:	
No
	employee
shall
	be
	granted 	leave 	of
	absence
	for
personal 	business.
PERSONAL
	NECESSITY
	CHARGEABLE
	TO
	SICK
LEAVE:	
Personal
	necessity
	leave
	shall
be
	granted 	only
	for
	reasons
	of
	death
or 	serious
	illness
	of
	a 	member
	of 	theemployee's
	immediate
	family,
	or 	accident
involving 	the
	employee's 	person 	or
property 	or 	the 	person
	or 	property 	of
a member
	of 	the
	employee's
	immediate
family.
	Employees
	will
	be
	required 	to
file
	with 	the
	Personnel 	Services 	Office
satisfactory
	evidence
	of 	entitlement 	to
such
	leave.
All 	other
	leave
	policies 	of
	the
	district
shall
	remain
	in
	full
	force
	and
	effect,
except
	that
	employees
	will
	be
	requiredto
	file
	with 	the 	Personnel 	Services
Office
	satisfactory
	evidence
	of
	entitle-
ment
	to
	such
	leave.
VACATIONS:	
During
	the
	state
	of
	emergency,no
	vacation
	shall
	be 	approved
	for
	any
employee; 	however,
	vacations
	which were
approved by
	supervisory 	or 	administrative
authority 	prior
	to 	April
	26, 	1978,
	may
	be
taken
	and
	will
	be 	considered 	authorizedabsences.
Employees who
	are 	absent 	without 	authorization 	shall
be 	subject 	to 	discipline
	as 	determined
	by
	the 	Board
of 	Education. 	Such
	unauthorized 	absences 	include,
but 	are 	not 	limited 	to, 	collective 	refusals 	to
provide 	service, 	unauthorized 	use 	of 	leave 	benefits,non-attendance 	at 	required meetings, 	walk-outs,slowdowns, 	or work 	stoppage.
-12-

When
	the
	employees
	returned
	to
	work
	on
	April
	27
	they
were
	given 	copies
	of
	the
	District's
	standard
	employee
	absence
report
	form.
	The
	employees
	who
	appeared
	as
	witnesses
	at
	the
hearing
	testified
	that
	their
	names
	already
	had
	been
written
on
	the
	form 	and
	the
	excuse
	they
	gave
	for
	the
	absence
	on
	the
telephone
	already
	was
	marked 	on
	the
	form.
	This
	was
	in
	accord
with
	the
	usual
	District 	practice.
In 	order 	to 	receive
	pay
	for 	April
	26, 	employees
	had
	to
meet
	the
	requirements
	of
	Resolution
	No. 	552
	as
	explained
	in
the 	superintendent's
	letter
	of April
	28.
	The
	only 	persons
paid 	for 	the
	day
were
	those
	who
	had
	a
	doctor's
	certificate
or
	who
	could prove
	there
	was 	a
	death,
	serious
	illness
	or
accident
	in
	their
	immediate
	family.
	An
	estimated
	10
	to
	15
of
	the
	134 	employees
	who
	were
	absent
	on
April
	26
	met
	those
qualifications
	and were
	paid. 	All 	others
	were 	docked
	for
one
	day's
	pay.
	The
	pay 	dock was 	made
	from
	the
	employees'
May
	31,
	1978
	check.
Prior
	to 	the
	school
	board's 	action 	of April
	27,
	the
District
	had
	a
	long-standing 	sick 	leave 	policy 	in 	effect.
Originally
	adopted
	in
	1968,
	the 	policy
	was 	amended
	in
	1969,
1970 	and 	1974. 	The
	policy 	detailed 	the 	procedures 	under
	whicl-,
an 	employee would be
	required 	to 	furnish
	a
	doctor's
	certificate
in 	order 	to
	be 	paid 	for 	sick 	leave.
	It
	also 	specified 	the
conditions 	under which
	sick 	leave 	could be 	used 	by 	employees
for 	"personal 	necessity." 	In 	relevant 	part, 	the 	policy
provided 	as 	follows:
-13-

Sick
	Leave
1.
	Personal
	illness
	or
	injury
g. 	For
	personal
	illness
	absence
	of
	any
regular
	employee
	exceeding
	ten
	(10)
consecutive
work
	days,
	a
	physician's
statement
	verifying
	the
	illness 	shall
be
	provided
	by
	the
	employee
	in
	addition
to 	the 	regular 	report
	of
	such
	illness.
For
	extended
	illness
	absence,
	a
physician's 	written
	statement
	relative
to
	necessity
	for 	continued
	absence
	is
required.
Nothing
	shall
	be
	deemed
	to
	prevent 	the
superintendent
	or
	the
	assistant
	super-
intendent,
	Personnel 	Services,
	from
requiring
	a
	doctor's
	verification
	as
to 	the
	employee's 	claimed
	illness
	in
any
	situation
	in
which
	there
	is
reasonable
	cause 	to
	believe 	that
	no
valid
	grounds
	exist
	for
	the
	employee's
claim
	for 	sick
	leave.
2.
	Sick 	leave
	for 	personal 	necessity
a.	
Leave
	of
	absence
	not 	to
	exceed
	six
	(6)
days
	per 	year 	granted pursuant 	to
Section
	R-4591
	of 	these 	regulations
may,
	at
	the employee's
	election,
	be
used
	for
	any
	of
	the 	following,
	and
prior
	approval
	shall
	not be
	required,except 	to 	give
	as
	much
	notice
	as
possible 	to 	the 	employee's
	principal
or 	other 	administrator 	in
	charge 	so
that
	a
	substitute
	may
	be 	obtained:
(1) 	Death,
	accident 	or 	illness
involving 	the 	employee's 	immediate
family, 	other 	relatives,
	or 	close
friends; 	accident 	involving 	theemployee's 	personal 	property 	or
the 	personal 	property 	of 	hisimmediate 	family, 	other 	relatives,or 	close 	friends.
-14-

(2) 	Inability 	to 	get 	to 	the 	employee's
assigned place 	of 	duty because 	of
circumstances 	beyond his 	control,
provided 	that 	not 	less 	than 	one
full 	day 	of 	leave may 	be 	used 	for
this 	purpose.
(3) 	Appearance 	in 	any 	court 	or 	before
any 	administrative 	tribunal 	as 	a
litigant, 	party, 	or witness 	under
subpoena 	or 	any 	order made with
jurisdiction.
(4) 	To 	attend weddings, 	ceremonies, 	or
traditional 	observances 	honoring
members 	of 	the 	employee's 	immediate
family.
(5) 	To 	attend 	to 	legal 	or 	business
matters 	necessary 	for 	the well-
being 	of 	the 	employee 	or 	a 	member
of his 	immediate 	family.
(6) 	To 	take 	examinations 	or 	engage 	in
other 	activities 	related 	to 	advanced
training which 	are 	required 	to 	hold
the 	employee's 	position 	in 	the
district 	which 	cannot 	be 	S'.o.heduled
during 	off 	duty hours. 	(In 	such
cases 	the 	employee 	shall 	attach 	to
his 	Employee Absence 	Report 	satis-
factory written 	evidence 	of 	the
requirement.)
b. 	"Immediate 	family" 	as 	used herein 	includes
spouse, 	children, 	parents, 	grandparents,
sisters, 	brothers, 	parents-in-law, 	sons-
in-law, 	daughters-in-law, 	grandparents-in-
law, 	foster 	children, 	grandchildren,
adopted 	children, 	or 	any 	other 	relative
living 	in 	the 	immediate household 	of 	the
employee.
c. 	Sick 	leave 	for 	personal 	necessity may 	NOT
be 	used 	for 	any 	of 	the 	following: 	attendance
at 	or 	participation 	in 	functions 	which 	are
primarily 	for 	the 	employee's 	amusement,
pleasure, 	personal 	convenience, 	or 	religious
observances; 	the 	extension 	of holidays 	or
vacation 	periods; 	accompanying 	a 	spouse 	on
a 	trip when 	such 	travel 	is 	not 	otherwise
-15-

authorized by 	these 	regulations; 	seeking
or 	engaging 	in 	remunerative 	employment;
engaging 	in 	a 	strike, 	demonstration,
picketing, 	lobbying, 	rally, 	march,
campaign meeting, 	or 	any 	other 	activities
related 	to 	work 	stoppage 	or 	political
campaigning.
d. 	The 	employee's 	election 	to 	use 	his 	sick
leave 	credits 	for 	any 	of 	the 	purposes
above 	allowable 	shall 	be 	indicated on
the 	Employee Absence 	Report which 	shall
be 	attached 	to 	the 	Payroll 	Section's
copy 	of 	the 	Monthly 	Absence 	Report 	of
Regular 	Employees. 	The 	Employee Absence
Report 	form 	shall 	show 	the 	reason 	for 	the
personal 	necessity 	leave 	as 	listed 	in
(1) 	through 	(6) 	above, 	on 	the 	reverse
side. 	The 	employee's 	signature 	on 	the
form and 	the 	signature 	of 	the 	appropriate
administrator 	on 	the Monthly Absence
Report 	shall 	attest 	to 	the 	veracity 	of
the 	report.
This 	long-standing 	policy 	is 	reflected 	in 	questions 	asked
on 	the 	District's 	employee 	absence 	report 	form. 	On 	the 	front
side 	of 	the 	form, 	an 	employee 	is 	asked 	to 	indicate whether 	an
absence was 	for 	employee 	illness 	or 	"use 	of 	sick 	leave 	for
compelling 	personal 	importance." 	If 	the 	sick 	leave was 	for
compelling 	personal 	importance, 	the 	employee 	is 	directed 	to
check 	one 	of nine 	reasons 	listed 	on 	the 	reverse 	side 	of 	the
form. 	The 	reverse 	side 	of 	the 	form 	reads 	as 	follows:
Check reason 	for 	use 	of 	sick 	leave 	for
compelling 	personal 	importance:
1. 	Death 	involving 	the 	immediate 	family,
other 	relatives, 	or 	close 	friends.
2. 	Accident 	involving 	the 	immediate
family, 	other 	relatives, 	or 	close
friends.
-16-

3	
Illness
	involving
	the
	immediate
family,
	other
	relatives,
	or
	close
friends.
4.	
Accident
	involving 	personal 	property
of 	the
	employee,
	the
	immediate
	family,
other
	relatives,
	or 	close
	friends.
5.	
Inability
	to
	get
	to 	assigned 	place
of
	duty because
	of
	circumstances
beyond
	control.
6.	
Appearance
	in
	court.
7.	
Attendance
	at 	religious
	observances,
weddings, 	ceremonies,
	or
	traditional
observances 	honoring
	the
	employee
	or
members
	of 	the
	employee's 	immediate
family.
8.	
Attending 	to
	legal
	or 	business 	matters
of
	compelling
	personal
	importance.
9 .	
Taking
	examinations
	related
	to
advanced
	training
which
	cannot 	be
scheduled 	during
	off-duty
	hours
(attach 	to
	this
	form
written
	evidence
of 	the 	requirement.)
The
	following 	are 	not 	considered reasons
	of
compelling
	personal
	importance: 	attendance
	at
or
	participation 	in
	functions
	which
	are 	primarily
for 	the
	employee's
	amusement,
	pleasure, 	personal
convenience;
	the 	extensions 	of holidays 	or vaca-
tion 	periods;
	accompanying
	a
	spouse
	on 	a
	trip
when
	such
	travel 	is
	not 	otherwise 	authorized
by
these
	rules;
	seeking
	or
	engaging
	in 	other
	employ-
ment; 	engaging
	in
	a
	strike
	demonstration,
picketing,
	lobbying,
	rally,
	march, 	campaign
meeting, 	or
	any
	other
	activities 	relating
	towork
	stoppage 	or
	political
	campaigning.
The 	form had been
	in
	use within 	the
	District
	for
	some
	time
prior
	to 	April
	26, 	1978.
Testimony
	at 	the hearing 	established 	that 	in
	accord with
-17-

the 	Education 	Code, 3 the 	District's 	practice 	under 	the 	1968
policy was 	to 	permit 	employees 	to 	use 	up 	to 	six 	days 	of 	sick
leave 	annually 	for 	specified personal 	necessities. 	It was
the 	practice 	that 	if 	an 	employee 	properly 	completed 	the
District 	sick 	leave 	form 	the 	employee 	normally would 	be 	paid
without 	further 	inquiry. 	It was 	the 	District's 	policy
3Education 	Code 	section 	45007 	provides 	as 	follows:
Any 	days 	of 	absence 	for 	illness 	or 	injury 	earned
pursuant 	to 	Section 45191, 	may 	be 	used by 	the
probationary 	or 	permanent 	employee, 	at 	his 	election,
in 	cases 	of 	personal 	necessity, 	including 	any 	of
the 	following:
(a) 	Death 	of 	a 	member 	of his 	immediate 	family 	when
additional 	leave 	is 	required beyond 	that 	provided
in 	Section 	45194 	and 	that 	provided, 	in 	addition
thereto, 	as 	a 	right 	by 	the 	governing 	board.
(b) 	Accident, 	involving 	his 	person 	or 	property,
or 	the 	person 	or 	property 	of 	a 	member 	of 	his
immediate 	family.
(c) 	Appearance 	in 	any 	court 	or 	before 	any 	admin-
istrative 	tribunal 	as 	a 	litigant, 	party, 	or witness
under 	subpoena 	or 	any 	order made with 	jurisdiction.
(d) 	Such 	other 	reasons 	which may 	be 	prescribed
by 	the 	governing 	board.
The 	governing 	board 	of 	each 	school 	district 	shall
adopt 	rules 	and regulations 	requiring 	and pre-
scribing 	the manner 	of 	proof 	of 	personal 	necessity
for 	the 	purpose 	of 	this 	section. 	No 	earned 	leave
in 	excess 	of 	six 	days 	may be 	used 	in 	any 	school
year 	for 	the 	purposes 	enumerated 	in 	this 	section.
Immediate 	family 	has 	the 	same meaning 	as 	provided
in 	Section 45194.
This 	section 	shall 	apply 	to 	districts 	that 	have
adopted 	the merit 	system 	in 	the 	same manner 	and
effect 	as 	if 	it were 	a 	part 	of 	Article 	6 	(com-
mencing with 	Section 	45240) 	of 	this 	chapter.
This 	section 	shall 	also 	apply 	to 	school 	districts
that may 	be 	exempted 	from 	the 	provisions 	of
Section 	45191. 	Authorized 	necessity 	leave 	shall
be 	deducted 	from 	sick 	leave 	earned under 	the
provisions 	of 	the 	exemption 	of 	Section 45191.
_7Q_

to
	assume
	honesty
	on
	the
	part
	of
	its
	employees 	and
	to
	make
no
	further 	inquiries
	unless 	there
	was
	independent 	evidence
indicating
	an 	abuse
	of 	sick
	leave.
	When
	there
	was
	an
	inmica-
tidn
	of
	abuse
	of
	sick
	leave,
	it
	was
	the
	District's
	practice
to
	investigate
	the
	absence
	and
	to
	require 	additional
	informa-
tion
	and/or
	a
	doctor's
	certificate
	before
	making
	payment.
At
	the 	hearing, 	nine
	employee
witnesses
	credibly
	testified
that
	when
	they
	previously
	had
	taken
	personal
	necessity
	leave
they
	had
	explained
	the nature 	of 	the 	personal
	necessity 	to
their
	supervisor. 	Transportation 	supervisor
	Hill 	credibly
testified
	that 	in his
	six
	years
	as
	a
	supervisor
	he
	could
	recall
only
	one 	employee
who
	refused 	to 	explain 	the 	nature 	of
	a
personal
	necessity 	requiring
	a
	leave.
	"I've
	had
	a
	couple
put
	up 	a
	real 	stink
	about
	it,
	but
	then
	finally
	did
	at 	least
mark 	something
	on
	the
	back
	of 	the 	form," 	he
	said.
	Mr.
	Hill
identified
	the
	one
	person
who
	would
	not 	give
	a
	reason
	for
	the
previous 	absences 	as
	George
	Lemasters.
Mr.
	Lemasters,
	who was 	a
	witness
	at
	the 	hearing, 	credibly
testified
	that
	he 	twice 	refused 	to
	identify
	the 	nature 	of
	the
personal 	necessity 	for
	which he 	took 	leave.
	He
	said
he
	was
paid
	on
	both 	occasions.
	He
	also
	testified 	that
	on
	another
occasion he 	did
	identify 	the 	nature 	of 	the 	personal 	necessity
when he 	took 	leave.
	Mr.
	Lemasters
	testified 	that 	the 	three
occasions
	when he 	took 	personal 	necessity 	leave 	comprised 	the
entire
	amount
	of 	sick 	leave he 	has 	taken 	in 	the 	last 	three
-19-

years. 	At 	the 	hearing, 	one 	other 	employee 	testified 	that
she had 	declined 	to 	identify 	the 	nature 	of 	the 	personal
necessity when 	she had 	taken 	leave.'
Robert 	Parker, 	assistant 	superintendent 	for 	business
in 	the 	District, 	credibly 	testified 	that 	sick 	leave 	and 	leave
of 	absence 	policies 	have 	been 	administered 	"on 	the 	assumption
that 	employees 	will 	be 	honest." 	Because 	of 	this, 	he 	said,
someone 	like Mr. 	Lemasters 	could have 	been 	paid 	for 	an
unexplained absence 	if 	his 	supervisor had 	no 	reason 	to 	suspect
an 	abuse.
Subsequent 	to 	April 	26, 	the 	District 	modified 	its 	salary
offer 	to 	a 	pay 	increase 	of 	6 percent 	or 	$55, 	whichever was
greater. 	On May 	6 and 	7, 	1978, 	Local 	22 	conducted a 	vote 	on
the 	District 	proposal. 	A majority 	of 	the 	union's 	members
voted 	to 	accept 	the 	offer 	and 	the 	parties 	reached 	an 	agreement
on May 	8, 	1978. 	On May 	9, 	1978, 	the 	District 	superintendent
wrote 	a 	letter 	to 	classified 	employees 	informing 	them 	that
the 	District 	board 	of 	education had 	declared 	an 	end 	to 	the
state 	of 	emergency 	and rescinded 	the 	emergency 	policies.
LEGAL 	ISSUES
1) 	Did 	the 	District 	by 	its 	adoption 	and 	implementation
of 	Resolution 	552 	thereby 	violate 	Government 	Code 	section
3543.5(a)?
2) 	Did 	the 	District 	by 	its 	adoption 	and 	implementation
of 	Resolution 	552 	thereby violate 	Government 	Code 	section
3543.5(c)?
-20-

CONCLUSIONS
	OF
	LAW
The
	parties
	and
	the 	hearing
	officer
	come
	to
	this
	case
with 	the
	guidance
	of
	Sacramento
	City 	Unified
	School
	District
C8/14/79)
	PERE
	Decision
	No. 	100
which
	reverses
	a
	hearing
officer's 	earlier
	dismissal 	of 	the 	present
	charge. 	In
Decision
	No.
	100,
	the
	PERE
	held
	that
	the
	charge
	in
	the
	present
case
	states
	a
	prima
	facie 	violation
	of 	Section
	3543.S(a)
	and
(c).
	Because
	Decision
	No. 	100
	involved
	an
	appeal
	from
	a
dismissal
	prior
	to
	a
	hearing, 	the
	PERB
	deemed
	the
	factual
allegations 	in 	the
	charge
	to
	be
	true.
	San
	Juan 	Unified
School
	District
	(3/10/77)
	EERB
	Decision
	No.
	12.
	In
	this
proposed
	decision, 	the
	legal 	principles 	set 	forth 	in
	Decision
No. 	100
	will
	be
	applied 	to 	the 	factual 	allegations
	as
	proven.
Alleged
	Violation 	of 	Section
	3543.S(a)
Under 	Government 	Code
	section
	3543.S(a)
	it
	is
	unlawful
for
	a
	public 	school
	employer
	to:
Impose
	or 	threaten 	to
	impose
	reprisals
	on
employees,
	to 	discriminate 	or 	threaten 	to
discriminate 	against
	employees,
	or 	other-wise 	to
	interfere
with,
	restrain,
	or 	coerce
employees
	because
	of 	their
	exercise 	of
rights
	guaranteed
	by
	this 	chapter.
This
	section
must 	be 	read 	in 	conjunction with 	section
3543 	which guarantees 	public 	school 	employees
	the
	"right
	to
form,
	join,
	and
	participate 	in 	the
	activities 	of
	employee
-21-

organizations" 	and 	to 	refuse 	to 	participate. 4 If 	the 	District's
adoption 	and 	implementation 	of 	Resolution 	No. 	552 	"interfere(d)
with, restrain(ed), 	or 	coerce(d) 	employees 	because 	of 	their
exercise" 	of 	section 	3543 	rights, 	it was 	an 	unfair
practice.
In 	Carlsbad 	Unified 	School District 	(1/30/79) 	PERB
Decision 	No. 	89, 	the 	PERB 	set 	forth 	the 	test 	for 	determining
whether 	in 	a 	particular 	situation 	an 	employer 	has 	violated
section 	3543.5(a). 	The 	test 	provides 	as 	follows:
4 Government 	Code 	section 	3543 	provides 	as 	follows:
Public 	school 	employees 	shall 	have 	the 	right 	to 	form,
join, 	and 	participate 	in 	the 	activities 	of 	employee
organizations 	of 	their 	own 	choosing 	for 	the 	purpose
of 	representation 	on 	all 	matters 	of 	employer-employee
relations. 	Public 	school 	employees 	shall 	also 	have
the 	right 	to 	refuse 	to 	join 	or 	participate 	in
the 	activities 	of 	employee 	organizations 	and 	shall
have 	the 	right 	to 	represent 	themselves 	individually
in 	their 	employment 	relations 	with 	the 	public 	school
employer, 	except 	that 	once 	the 	employees 	in 	an
appropriate 	unit 	have 	selected 	an 	exclusive 	repre-
sentative 	and 	it 	has 	been 	recognized 	pursuant 	to
Section 	3544.1 	or 	certified pursuant 	to 	Section
3544.7, 	no 	employee 	in 	that 	unit may meet 	and
negotiate with 	the 	public 	school 	employer.
Any 	employee may 	at 	any 	time 	present 	grievances 	to
his 	employer, 	and 	have 	such 	grievances 	adjusted,
without 	the 	intervention 	of 	the 	exclusive 	represen-
tative, 	as 	long 	as 	the 	adjustment 	is 	reached 	prior
to 	arbitration 	pursuant 	to 	Sections 	3548.5, 	3548.6,
3548.7, 	and 	3548.8 	and 	the 	adjustment 	is 	not 	incon-
sistent with 	the 	terms 	of 	a 	written 	agreement 	then
in 	effect; 	provided 	that 	the 	public 	school 	employer
shall 	not 	agree 	to 	a 	resoiliution 	of 	the 	grievance
until 	the 	exclusive 	representative 	has 	received a
copy 	of 	the 	grievance 	and 	the 	proposed 	resolution
and has 	been 	given 	the 	opportunity 	to 	file 	a
response.
-22-

2. 	Where 	the 	charging 	party 	establishes
that 	the 	employer's 	conduct 	tends 	to 	or
does 	result 	in 	some harm 	to 	employee
rights 	granted under 	the 	EERA, 	a 	prima
facie 	case 	shall 	be 	deemed 	to 	exist;
3. 	Where 	the harm 	to 	the 	employees'
rights 	is 	slight, 	and 	the 	employer 	offers
justification based on 	operational
necessity, 	the 	competing 	interest 	of 	the
employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced and 	the 	charge 	resolved
accordingly;
4. 	Where 	the harm 	is 	inherently 	destructive
of 	employee 	rights, 	the 	employer's 	conduct
will 	be 	excused 	only 	on 	proof 	that 	it was
occasioned by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course 	of 	action was 	available;
S. 	Irrespective 	of 	the 	foregoing, 	a 	charge
will 	be 	sustained where 	it 	is 	shown 	that 	the
employer would not 	have 	engaged 	in 	the
complained-of 	conduct 	but 	for 	an unlawful
motivation, 	purpose 	or 	intent.
The 	Carlsbad 	test 	is 	applied whenever 	the 	employer's
conduct harms 	"employee 	rights 	granted 	under 	EERA." 	Carlsbad
is 	inapplicable 	in 	those 	situations 	where 	an 	employee has
engaged 	in 	conduct which 	is 	not 	protected by 	section 	3543.
The 	statute 	presents 	no 	bar 	to 	an 	employer's 	punishment 	of 	an
employee who 	has 	engaged 	in 	unprotected 	conduct. 	See 	Pittsburg
Unified 	School 	District 	(2/10/78) 	PERB 	Decision 	No. 	47 	and 	the
Board's 	interpretation 	of 	Pittsburg 	as 	set 	forth 	in 	Richmond
Unified 	School 	District 	(8/1/79) 	PERB 	Decision No. 	99. 	The
key 	to 	the 	present 	case, 	therefore, 	is 	whether 	the 	District
through 	the 	adoption 	and 	implementation 	of 	Resolution 	No. 	552
has 	taken 	action 	which 	unlawfully 	infringes 	upon 	employee
participation 	in 	protect~d 	activity.
-23-

In
	its
	brief,
	Local
	22
	contends
	that
	the
	District's
refusal
	to
	pay 	employees
	absent
	from work
	on
	April
	26, 	1978
was
	unlawful 	because
	it
	was
	discriminatory
	and
	because
	it
denied
	employees
	rights
	guaranteed
	to
	them
by
	the 	Education
Code.
	Moreover,
	Local
	22
	argues, 	the
	walkout
was 	a
	protected
response
	to 	the
	District's
	"egregious
	unfair
	labor
	practices."
The
	District
	responds
	that
	the
	walkout
	was
	an
	unprotected
	and
illegal 	strike
which
	occurred
	prior
	to
	the 	exhaustion
	of
impasse
	procedures.
	Furthermore,
	the
	District
	argues,
	there
is
	no
	evidence
	of
	any
	kind 	to 	support 	the
	contention
	that
	the
strike
was
	in
	response 	to
	District
	unfair 	practices.
The
	evidence
	establishes 	that
	the
	work
	stoppage
	on
April
	26, 	1978 was 	a
	concerted
	activity
	to
	protest
	the
District's
	negotiating 	posture.
	The
	decision 	to
	be
	absent
from work
was
	reached
	by 	consensus
	at
	a
	meeting
	of various
employees
	with
members
	of 	the
	strike
	and
	negotiating
	committees.
Following
	this
	consensus
	decision, 	five
	persons
	began making
telephone
	calls
	to 	other
	employees,
	primarily 	in
	the
	transpor-
tation
	department, 	to
	encourage
	them
	not 	to
	report
	to
	work
	the
next
	day.
	The
	officers
	of
	Local
	22
	fully
	supported
	and
	ratified
this 	action. 	Plainly, 	the
	work
	stoppage
	was
	the
	activity
	of
	an
employee
	organization.
	However,
	not
	all 	activities
	of
	employee
organizations 	are 	protected.
	Employer
	discrimination 	against
unprotected activity 	is
	not 	unlawful. 	See
	Pittsburg 	Unified
School
	District, 	supra,
	PERB
	Decision
	No. 	47.
-24-

The
	PERB
	has
	considered 	the
	legality
	of
	work
	stoppages
several
	times 	subsequent
	to 	the
	Supreme
	Court's 	decision
	in
San 	Diego
	Teachers
	As~n.
	v.
	Superior
	Court
	(1979)
	24
	Cal.3d
	1
[154
	Cal.Rptr.
	893].
	See 	Las
	Vd.rgenes
	Unified
	School
	District
(6/12/79)
	PERB
	Order
	No.
	IR-8,
	Val 	Vdrde
	School
	District
(7/18/79)
	PERB
	Order
	No.
	IR-9,
	and
	San
	Francisco 	Unified
School
	District
	(10/29/79)
	PERB
	Order
	No.
	IR-10.
	In
	San
Francisco 	Unified,
	the
	PERB
	wrote:
The
	Board
	considers
	the
	statutory
	enactment
of
	impasse
	procedures
	in
	the
	EERA
	as
	strong
evidence
	of
	a
	legislative 	intent
	to 	head
	off
work
	stoppages
	prior
	to
	the
	completion
	ofthose 	procedures. 	[Footnote
	omitted.
J
	This
policy
	has 	been
	incorporated
	into
	title
	8,
California
	Administrative
	Code
	section
	38100.
[Footnote
	omitted.]
The
	PERB
	then
	incorporated 	the 	following 	analysis•
from
the
	Supreme
	Court's 	decision
	in
	San 	Diego
	Teachers
	Association
v.
	Superior 	Court,
	supra,
	24
	Cal.3d
	1
	at
	8-9:
Since 	they 	(impasse 	procedures)
	assume
deferment
of
	a
	strike 	at 	least 	until 	their
	completion,
strikes
	before
	then 	can
	properly
	be 	found
	tobe
	a
	refusal
	to
	participate 	in 	the
	impasse
procedures
	in
	good
	faith
	and
	thus
	an
	unfair
practice
	under
	section
	3543.6,
	subdivision
	(d).
From
	these 	decisions,
	it
	would 	appear
	that
	an 	employee
work
	stoppage
	prior
	to 	the 	exhaustion 	of 	impasse 	procedures
under 	the
	EERA
will, 	in
	most 	circumstances, 	be 	found
	in
violation 	of 	section 	3543.6(d).
	If
	a 	work 	stoppage
	prior
	to
the 	exhaustion 	of 	impasse 	procedures
	is
	a
	violation 	of 	the
EERA,
	it
	can hard]y be 	claimed 	to 	be 	the 	protected 	activity
of 	an 	employee 	organization. 	The 	only 	apparent 	exception 	to
this 	rule 	is 	where 	the 	employee 	organization's 	work 	stoppage
-25-

was
	preceded
	by
	an
	employer's
	provocative
	unfair
	practices.
In
	such
	a
	case, 	the
	PERB
	has
	written,
	the
	"work
	stoppage
appears
	to
	be
	a
	protected
	response 	to
	an
	employer's
	unfair
practices."
	Modesto
	City
	Schools
	(3/12/80)
	PERB
	Decision
No.
	IR-12.
The work
	stoppage
	in
	the 	present
	case 	occurred
	prior
	to
the 	exhaustion
	of
	impasse
	procedures 	under
	the
	EERA.
	Thus,
it
	cannot
	be
	contended
	that
	the
	work
	stoppage
was
	protected
activity,
	absent
	a
	showing
	that
	it
	was 	provoMed
	by
	District
unfair 	practices.
	Local
	22 makes
	this
	accusation but 	the
flaw
	in
	its
	argument
	is
	the 	paucity 	of
	evidence
	that
	the
District
	committed any
	unfair 	practice 	prior
	to 	the April
	26,
1978 	work
	stoppage. 	In
	its
	brief,
	Local
	22
	refers
	to
	an
	unfair
practice
	charge
	which
	was
	filed
	and
	subsequently
withdrawn.
5
An
	unfair 	practice
	charge
which
	was
	withdrawn
	prior
	to
	hearing
provides 	evidence
	of 	nothing.
	It
	is
	a 	summary
	of 	allegations.
It
	cannot
	later
	be 	used 	as 	proof 	of 	the 	employer's 	misconduct.
Although
	the
	former 	charge
was
	mentioned 	during 	the 	hearing
in 	the 	present 	case
	its
	veracity
	remains
	unestablished.
	There
is 	scarcely
	any
	evidence
	at 	all,
	much
	less
	a
	preponderance 	of
evidence,
	that
	the
	District
	committed any
	unfair 	practices
prior
	to 	the April
	26
	job 	action.
5
Local 	22
	filed
	charge 	S-CE-109
	against 	the 	District
	on
March 	20> 	19,78 	and ·withdrew
it
	on May
	12, 	1978.
-26-

Local 	22 	also 	fails 	in 	its 	contention 	that 	the 	absence
from work 	on 	April 	26, 	1978 	was 	the 	exercise 	of 	rights 	given
to 	employees 	by 	the 	Education 	Code. 	The 	Education Code 	does
not 	authorize 	employees 	to 	take 	personal 	necessity 	leave 	to
protest 	their 	employer's 	stance 	in 	negotiations. 	Education
Code 	section 	45207 	guarantees 	employees 	the 	right 	to 	use 	sick
leave 	for 	personal 	necessities 	involving 	the 	death 	of 	a member
of 	the 	employee's 	immediate 	family, 	accident 	involving 	the
person 	or 	property 	of 	an 	employee 	or 	a 	member 	of 	the 	employee's
immediate 	family, 	appearances 	in 	court 	or 	administrative
tribunal 	and 	"such 	other 	reasons 	as 	may 	be 	prescribed by 	the
governing 	board." 	None 	of 	the 	other 	reasons 	prescribed 	in 	the
Di:s,trict' s 	1968 	policy would permit 	the 	use 	of 	personal
necessity 	leave 	to 	protest 	the,District's 	stance 	in 	negotia-
tions. 	By 	long-standing 	District 	rule, 	personal 	necess.ity
leave 	is 	specifically 	prohibited 	for 	participation 	in 	a 	work
stoppage.
For 	these 	reasons, 	it 	is 	concluded 	that 	the 	job 	action
of April 	26, 	1978 was 	unprotected 	activity. 	Therefore, 	the
District's 	refusal 	to 	pay 	the 	employees 	who were 	absent 	on
that 	day was 	not 	a 	violation 	of 	Rec.tion 	3543.S(a).
Alleged 	Violation 	of 	Section 	3543.S(c)
Under 	Government 	Code 	section 	3543.S(c) 	it 	is 	unlawful
for 	a 	public 	school 	employer 	to:
Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith 	with an 	exclusive 	representative.
-27-

This
	section
must
	be
	read
	in
	conjunction with
	section
3543.2
	which
	lists
	the 	subjects
	which
	are
	within
	the
	scope
of 	representation.
	Among
	the 	subjects
	specifically
	listed
as 	being
	within 	the
	scope
	of 	representation
	is
	"leave,
transfer
	and
reassignment
	policies."
The
	PERB
	has
	held
	that
	it
	is
	a
	failure
	to
	negotiate
	in
good
	faith
	for
	an 	employer
	to
	unilaterally
	change
	a
	matter
within
	scope
	prior
	to
	impasse.
	See
	Davis
	Unified
	School
District
	(2/22/80)
	PERB
	Decision
	No.
	116,
	San
	Francisco
Community
	College
	District
	(10/12/79)
	PERB
	Decision
	No.
	105,
and San
Mateo 	Community
	College
	District
	(6/8/79)
	PERB
Decision
	No.
	94.
In
	Sacramento
	City 	Unified
	School
	District
	(8/14/79)
PERB
	Decision
	No.
	100,
	the 	procedural 	predecessor 	to 	the
present
	proposed
	decision, 	the
	PERB
	observed:
Local
	22
	charges
	and
	the
	District
	admits
that
	it
	unilaterally
	adopted 	and 	implementedemergency
	regulations.
	Since
	a
	prima
	facie
case
	is 	stated, 	the hearing
	officer's 	dis-missal 	of 	the 	section
	3543.5(c) 	charge
	is
reversed.
The
	evidence 	submitted
	at
	the 	hearing
	conforms
	with 	the
pleadings 	before 	the
	PERB
	when
	it
wrote 	Decision
	No.
	100.
The
	District unilaterally
	adopted 	and 	implemented
	Resolution
No. 	552. 	The
	resolution
	concerned 	leave 	policies,
	a
	matter
within 	the 	scope 	of 	representation.
Therefore, 	the District
	made 	a
	unilateral
	change 	about
a
	matter within 	the 	scope 	of 	representation 	in violation 	of
section 	3543.5(c).
-28-

THE
	REMEDY
Local
	22
	asks
	for 	these
	remedies:
	Reimbursement
of
	employees
	who
	were
	docked
	for
	absence
	of April
	26,
1978
	either
	by
	providing
	them
with
	one
	day's
	pay
	or
	crediting
them
with
	one 	day
	of
	sick
	leave;
	interest 	at
	the
	rate
	of
7
	percent 	per
	year;
	the 	posting 	of
	a
	notice;
	an
	order
	that
the
	District
	cease
	and
	desist
	from
	its
	unlawful
	conduct 	and
that
	it
	bargain with
	Local
	22
	prior
	to 	adoption 	of
	any
	new
policies;
	provision
	that
	employees
	"otherwise
	be
made
whole"
for
	any
	losses;
	and
	the
	award
	of 	attorney 	fees.
It
	has 	been
	the
	practice
	of 	the
	PERB
	in
	unilateral
	change
cases 	to 	order 	the
	employer
	to
	restore
	the
	status
	quo
	ante.
If
	restoration
	of 	the
	status
	quo
	requires 	the
	payment
	of
	money,
the
	PERB
	has
	included
	interest 	at
	the
	rate
	of
	7
percent.
In 	the present 	case, 	the
	employer
	rescinded 	the 	disputed
policy
	on
	May
	9, 	1978. 	However, 	some 	119
	to
	124 	employees
suffered 	the 	loss 	of
	one 	day
	of
	pay
	for
	their
	absence
	on
April
	26, 	1978.
	If
	it
	had been
	shown
	that
	the
	employees 	would
have been
	paid but 	for 	the
	employer's 	adoption
	and 	implementa-
tion 	of 	Resolution
	No. 	552,
	the 	appropriate
	remedy would
	be
restoration 	of 	the
	lost
	,;-rnges
	plus
	interest.
	However,
	evidence
presented
	at
	the hearing 	establishes 	that 	the 	employer's 	action
in
	docking 	the 	salaries 	of 	the 	affedted
	employees was
	consistent
with 	District 	practices 	dating 	back
	at 	least
	as 	far
	as 	1968,
There
	is
	no
	question 	that 	long-standing 	District 	policies
-29-

precluded 	the
	use
	of 	personal
	necessity
	leave
	for
	the 	concerted
work
	stoppage.
	The
	evidence
	also 	establishes
	that
whenever
	the
District
	received
	an
	independent
	indication
	of
	sick
	leave
	abuse,
it
	long 	has
	required
	documentation
	before
	paying
	employees
	for
their
	absence. 	In
	the present
	case,
	Local
	22's
	frequent
	strike
warnings
	provided
	ample
	reason
	for
	the
	District
	to
	suspect
	that
its
	long-standing
	policy
	had been
violated.
	The
	District
requested
	documentation
	from
	all
	employees
	who
	were
	absent
	on
April
	26, 	1978.
	Some 	10
	to
	15
	employees
	provided 	the
	docu-
mentation
	and were
	paid.
	The
	others
	were
	docked
	for
	one 	day
of
	pay.
	These
	events
	were
	in
	accord
with 	the
	District's
	long-
standing
	policies
	and
	did 	not
	result
	from
	the 	adoption
	and
implementation
	of 	Resolution
	No.
	552.
Accordingly,
	it
	is
	concluded
	that
	repayment
	of 	the
	lost
wages
	is
	not 	required
	to
	restore
	the
	status
	quo
	ante.
Attorneys 	fees
	are 	appropriate
	where
	the
	conduct
	of 	the
respondent 	involved
	a
	"clear
	and
	flagrant" 	violation 	of 	the
law.
	The
	District's
	adoption
	of
	Resolution
	No. 	552 was 	com-
pleted 	prior
	to 	the
	PERB's
	first
	decision 	about 	the
	legality
6
of
	a
	unilateral
	change. 	Moreover, 	as 	the
	PERB
	noted
	in
	its
earlier 	decision 	in 	the 	present 	case, 	the
	law
	involving 	strikes
and 	employee
	concerted action 	is
	still
	developing.
	If
	it
could not have 	been
	said with
	some
	certainty
	on
	April
	27, 	1978
6
Pajaro 	Valley 	Unified 	School
	District 	(5/22/78)
	PERB
	DecisionNo. 	SL
-30-

that
	the
	District
	was
	violating
	the
	EERA
by
	its
	adoption
	of
Resolution
	No.
	552,
	it
	cannot
	now
be
	said
	that
	the
	District's
action
was 	a	
"clear
	and
	flagrant" 	violation
	of
	the
	law.
	For
this
	reason,
	the 	request 	for 	legal
	fees
	must be
	denied.
The
	other
	remedies 	sought
	by
	Local
	22
	are
	in
	order.
Under 	Government 	Code
	section
	3541.5(c), 	the
	PERB
	is
	given
the
	power
	to
	issue
	a
	decision
	and
	order
	directing
	an
	offending
party
	to 	cease
	and
	desist
	from
	its
	unfair 	practice.
It
	is
	also 	appropriate 	thht
	the
	District
	be
	required
	to
post	
a	
notice 	incorporating
	the
	terms
	of 	the 	order. 	Posting
of
	such	
a	
notice
	will
	provide
	employees
	with
	notice 	that
	the
District
	has
	acted
	in
	an
	unlawful
	manner 	and
	is
	being
	required
to 	cease
	and
	desist
	from
	this 	activity
	and
	to
	restore
	the
status
	quo.
	It
	effectuates
	the 	purposes
	of
	the
	EERA
	that
employees
	be 	informed
	of 	the
	resolution
	of 	the 	controversy
and
will
	announce
	the
	District's
	readiness
	to
	comply
	with 	the
ordered
	remedy. 	See
	Placerville
	Union
School
	District
	(9/18/78)
PERB
	Decision
	No. 	69.
	In
	Pandol 	and 	Sons
	v.
	ALRB
	and
	UFW
	(1979)
98
	Cal.App.3d
	580, 	587,
	the 	California 	District
	Court
	of
	Appeal
approved
	a
	posting 	requirement.
	The
	U.
	S. 	Supreme
	Court
approved
	a
	similar 	posting 	requirement
	in
	NLRB
	v. 	Express
Publishing
	Co. 	(1941) 	312
	U.S.
	426 	[8
	LRRM
	514].
-31-

PROPOSED ORDER
Upon 	the 	fd>.regoing 	findings 	of 	fact, 	conclusions 	of 	law,
and 	the 	entire 	record 	of 	this 	case, 	and pursuant 	to 	Government
Code 	section 	3541.5(c) 	of 	the 	Educational 	Employment 	Relations
Act, 	it hereby 	is 	ordered 	that 	the 	Sacramento 	City 	Unified
School 	District, 	board 	of 	education, 	superintendent 	and
representative 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Taking 	unilateral 	action with 	respect 	to
employee 	leave 	policies 	and 	other matters
within 	the 	scope 	of 	representation 	as 	defined
by 	Government 	Code 	section 	3543.2, 	and 	thereby
violating 	Government 	Gode 	section 	3543.5(c).
2. 	Giving 	any 	force 	and 	effect 	to 	Board
of 	Education Resolution 	No, 	552.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED
TO 	EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	Within 	seven 	calendar 	days 	of 	this 	decision
becoming 	final, 	post 	at 	all 	school 	sites, 	and
all 	other work 	locations 	where 	notices 	to
classified 	employees 	customarily 	are 	placed,
copies 	of 	the 	notice 	attached 	as 	Appendix A,
hereto. 	Such 	posting 	shall 	be maintained 	for
a 	period 	of 	twenty 	(20) 	working 	days. 	Reasonable
steps 	shall 	be 	taken 	to 	insure 	that 	the 	notices
are 	not 	altered, 	defaced 	or 	covered with 	any
other material.
-32-

2.	
Notify 	the
	Sacramento
	Regional
	Director 	of
the 	Public
	Employment
	Relations
	Board,
	in
writing,
	at
	the
	end
	of 	the
	posting 	period,
of
	what
	steps 	the
	District
	has
	taken 	to
	comply
with
	this
	order.
All
	other
	charges
	filed
	against 	the
	Sacramento
	City
Unified
	School
	District
	in
	case
	niumber 	S-CE-121
	are
	hereby
dismissed.
Pursuant 	to
	California
	Administrative
	Code,
	title
	8,
part
	III,
	section
	32305,
	this
	Proposed
	Decision
	and 	Order
shall
	become
	final
	on
	May
	5,
	1980
	unless
	a
	party
	files
	a
timely 	statement 	of 	exceptions.
	See
	California Administrative
Code,
	title
	9,
	part
	III,
	section
	32300. 	Such
	statement
	of
exceptions
	and
	supporting
	brief
must 	be
	actually 	received
	by
the 	executive
	assistant
	to 	the
	Board
	itself
	at
	the 	headquarters
office 	in
	Sacramento
	before 	the 	close 	of 	business
	(5:00
	p.m.)
on
	May
	5,
	1980
	in 	order 	to
	be
	timely
	filed.
	See
	California
Administrative
	Code,
	title
	8,
	part
	III,
	section
	32135. 	Any
statement 	of 	exceptions
	and
	supporting
	brief
must be 	served
concurrently with
	its 	filing
	upon 	each
	party 	to
	this
	proceeding.
Proof 	of 	service 	shall
	be
	filed
	with 	the
	PERB
	itself.
	See
California Administrative
	Code,
	title	
8 1
	sections
	32300
	and
32305, 	as 	amended.
DATED:
	April 	14, 	1980
Ronald 	E. 	Blubaugh
Hearing 	Officer
-33-
(/

Appendix
	A 
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-CE-121,
SEID,
	Local
	22
	v.
	Sacramento
	City 	Unified
	School
	District,
	in
which
	all
	parties
	had
	the
	right
	to
	participate,
	it
	has 	been
found
	that
	the
	Sacramento
	City 	Unified
	School
	District
	violated
the
	Educational
	Employment
	Relations
	Act
	(Government 	Code
section
	3543.5(c)).
As
	a
	result
	of
	this
	conduct,
	we
	have 	been
	ordered 	to 	post
this 	notice
	and
	we
	will
	abide
	by
	the
	following:
A.
	CEASE
	AND
	DESIST
	FROM:
1.	
Taking
	unilateral
	action
with
	respect
	to
employee
	leave
	policies
	and
	other matters
within 	the
	scope
	of
	representation
	as
	defined
in
	Government 	Code
	section
	3543.2, 	and
	thereby
violating
	Government 	Code
	section 	3543.5(c).
2. 	Giving 	any
	force
	and
	effect
	to
	Board
of 	Education Resolution
	No. 	552.
B.
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE ACTIONS 	DESIGNED
TO
	EFFECTUATE
	THE
	POLICIES
	OF 	THE
	ACT:
1. 	Within 	seven 	calendar
	days
	of 	this 	decision
becoming
	final,
	post
	at
	all
	school 	sities,
	and
all
	other
	work
	locations
	where
	notices 	to
classified
	employees
	customarily 	are 	placed,
copies 	of 	the 	notice.
	Such
	posting 	shall
	be
maintained 	for
	a
	period 	of 	twenty 	(20) 	working
days. 	Reasonable 	steps 	shall
	be 	taken 	to
insure 	that 	the 	notices 	are 	not 	altered,defaced, 	or 	covered with
	any
	other material.

2.	
Notify 	the
	Sacramento
	Regional
	Directorof 	the 	Public
	Employment
	Relations
	Board,
in writing,
	at
	the
	end
	of 	the 	posting
period, 	of
	what
	steps 	the
	District
	has
taken 	to
	comply
with
	this
	order.
DATED:
	SACRAMENTO
	CITY 	UNIFIED
	SOHOOL
	DISTRICT
By
THIS 	IS
	AN
	OFFICIAL
	NOTICE.
	IT
	MUST
	REMAIN
	POSTED
FOR
	20
	WORKING
	DAYS 	FROM
	THE
	DATE
	OF
	POSTING
	AND
MUST NOT 	BE
	DEFACED, 	ALTERED
	OR
	COVERED
	BY
	ANY
MATERIAL.