Modesto City Schools (PERB 0291E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MODESTO CITY SCHOOLS,
Charging Party, Case No. S-CO-48

Vv. PERB Decision No. 291

MODESTO TEACHERS ASSOCIATION, CTA/NEA March 8, 1983

Respondent.

Case Nos. S-CE-318
S-CE-319
S-CE-320
S-CE-323
S-CE-324
S-CE-325
S-CE-326
S-CE-328
S-CE-329
S-CE-341

MODESTO TEACHERS ASSOCIATION, CTA/NEA
Charging Party,
Vv.
MODESTO CITY SCHOOLS,

Respondent.

ee Ne et ee Nee St eet Meee eee Sere att Start Set Ste Nit Ste Set Snag Staten” Sina? Samet

Appearances: Kirsten L. Zerger, Attorney for Modesto Teachexs
Lssociation, CTA/NEA; Keith V. Breon and Patricia W. Mills,
Attorneys (Breon, Galgani & Godino) for Modesto City Schools.

Pursuant to PERB rule 32210 (Title 8, California Administrative
Code), petition to file an informational brief was granted to
Christian M. Keiner, Attorney (Biddle, Waters & Bukey) for
California School Boards Association.
Before Tovar, Jaeger and Morgenstern, Members.*
DECISION

MORGENSTERN, Member: The present case is before the Public
Employment Relations Board (PERB or Board) on exceptions to the
hearing officer's proposed decision filed by both parties, the

Modesto City Schools (District) and the Modesto Teachers

Association, CTA/NEA (MTA or Association).

*Chairperson Gluck and Member Burt did not participate in the
determination of this matter.

2
PROCEDURAL HISTORY
Following
	is
	a 	summary
	of
	charges
	filed	
by	
the
	parties.
District
	Charges
On 	March
	4,
	1980, 	the
	District 	filed
	an
	unfair
	practice
charge
	(S-CO-48)
	against
	MTA
	alleging 	violations
	of
	subsections
3543.
6
(a),
	(b},	
(c)	
and 	(d)
	of
	the 	Educational
	Employment
Relations
	Act
	(EERA
	or
	Act)l	
by
	engaging
	in
	"illegal
	pressure
tactics
	and 	a
	strike
	against
	charging
	party."
lEERA
	is
	codified
	at
	Government 	Code
	section	
3540
et
	seq. 	All
	statutory
	references 	are 	to
	the
	Government 	Code
unless 	specified
	otherwise.
It
	amended
	its
	charge
	on
	June
	4,
	1980, 	to
	include
allegations 	that 	striking
	employees
	threatened
	and
	otherwise
Section
	3543.6
	reads
	as
	follows:
It
	shall
	be
	unlawful 	for
	an 	employee
organization 	to:
(a) 	Cause
	or 	attempt 	to
	cause
	a
	public
school
	employer
	to 	violate
	Section
	3543.5.
(b) 	Impose
	or
	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate 	or 	threaten 	to
discriminate 	against
	employees, 	or 	otherwise
to
	interfere
	with,
	restrain,
	or 	coerceemployees 	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.
(d) 	Refuse
	to 	participate 	in
	good
	faith 	in
the 	impasse 	procedure 	set 	forth 	in 	Article
	9
(commencing 	with 	Section 	3548).
N

3
interfered
	with
	substitutes
	and
	non-striking
	employees,
	and
that
	MTA
	illegally
	encouraged
	employees
	to 	refuse 	to
participate
	in
	evaluation 	procedures,
	extra-duty
	assignments
and
	other
	assigned
	tasks.
	Pursuant 	to
	MTA's
	request,
	the
District
	was
	ordered
	by 	a
	PERB
	hearing
	officer
	to
	particularize
its
	amended
	charge.
	The
	District
	complied 	with
	this
	order
	on
June
	23, 	1980,
	and
	submitted	
a	
detailed
	account 	of 	the
	alleged
misconduct.
On
	June 	25, 	1980,
	MTA
	sought
	dismissal 	of 	the
	District's
amended
	charge
	to
	the
	extent 	that
	it
	referred
	to
	and
	alleged
unlawful
	acts
	which
	occurred
	prior
	to
	December
	4,
	1979,
	more
than
	six
	months
	before 	the
	filing
	of 	the
	amended
	charge.
Subsection
	3541.S(a)
(1);
2 	and
	see
	San
	Dieguito
	Union 	High
School
	District
	(2/25/82)
	PERE
	Decision
	No.
	194.
2subsection 	3541.S(a) 	reads 	in
	pertinent 	part:
During
	the
	formal
	hearing
	on
	July 	7,
	1980,
	the 	hearing
officer
	granted
	MTA's
	motion
	and
	dismissed
	that 	portion 	of
	the
District's
	amended
	unfair 	practice
	charge
	referring
	to 	alleged
unlawful
	activities
	occurring
	prior 	to
	December
	4, 	1979.
(a) 	Any 	employee, 	employee
	organization, 	oremployer
	shall
	have 	the
	right 	to
	file
	an
unfair 	practice 	charge, 	except 	that 	theboard
	shall
	not
	•••
	(1)
	issue
	a
	complaint
in respect of any charge based upon an 	upon 	an
alleged 	unfair 	practice 	occurring
	more
	than
six
	months
	prior 	to 	the
	filing
	of 	the
charge;
	•..
W

4
MTA 	Charges
On March 	6, 	1980, 	MTA 	filed 	a 	charge 	{S-CE-318) 	against 	the
District 	alleging 	violations 	of 	subsections 	3543.S{a) 	and 	(b)
of 	EERA. 3 	The 	charge 	alleged 	that 	the 	District 	had 	hired
substitutes 	at 	rates, 	and 	with 	benefits, 	in 	excess 	of 	those
being 	granted 	unit 	members, 	employed 	armed 	guards 	who 	harassed,
intimidated 	and 	coerced 	unit 	members, 	issued 	newsletters
designed 	to 	intimidate 	and 	coerce 	individuals, 	blatantly
attempted 	to 	bargain 	with 	individuals 	by 	presenting 	offers 	not
made 	at 	the 	bargaining 	table, 	and 	instituted 	unilateral 	changes.
3	3section 	3543.5 	of 	EERA 	states:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	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.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
(d) 	Dominate 	or 	interfere 	with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any 	way 	encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
(e) 	Refuse 	to 	participate 	in 	good 	faith 	in
the 	impasse 	procedure 	set 	forth 	in 	Article 	9
(commencing 	with 	Section 	3548).

5
Also
	on
	March
	6, 	1980,
	MTA
	filed
	a
	second
	charge
	(S-CE-319)
against
	the
	District
	alleging 	violations
	of 	subsections
3543.S(b)
	and
	(c)
	of
	EERA. 	The
	charge
	alleged
	that
	the
District
	advised
	MTA
	on
	February 	4,
	1980,
	that
	it
	would 	no
longer
	negotiate
	with
	MTA
	but
	would
	meet 	and
	discuss
	issues.
MTA
	also
	contested
	the
	District's
	refusal
	to 	grant 	released
time
	for 	meetings
	which
	occurred 	subsequent
	to
	February
	4. 	In
its
	answer, 	the
	District
	argued
	that
	it
	was
	under
	no
	obligation
to
	resume
	negotiations 	since
	impasse
	procedures, 	including
factfinding,
	had 	been
	completed.
MTA
	filed
	a
	third
	charge
	(S-CE-320)
	against
	the
	District
	on
March
	6, 	1980,
	alleging 	violations
	of 	subsections 	3543.S(b),
(c)
	and
	(e)
	of
	EERA. 	The
	conduct 	complained
	of
	involved
	the
District's
	decision
	on
	September 	6, 	1979,
	to
	unilaterally
eliminate 	preparation 	periods
	provided 	for 	teachers 	of
grades 	4-6.
On 	March
	24, 	1980,
	MTA
	filed
	four
	additional
	charges
(S-CE-323, 	324,
	325 	and 	326)
	against 	the
	District.
In 	S-CE-323,
	MTA	
alleged 	that
	the
	District
	violated
subsections 	3543.S(a),
	(b) 	and 	(d)
	of
	EERA
	by
	threatening
	MTA
members
	with 	reprimands,
	by
	coercing
	members,
	contrary 	to 	past
practice, 	to 	surrender 	school
	keys 	and
	lesson 	plans,
	and 	by
reprimanding 	teachers, 	again 	contrary 	to 	past 	practice, 	for
failing 	to 	attend
	a
	faculty 	meeting.

S
6
The
	Association
	also
	argued
	at
	the
	hearing
	and
	in
	the
post-hearing
	briefs
	that
	letters
	of
	commendation
	given
	to
non-strikers
	were 	an
	additional 	violation
	of 	subsection
3543.S(a).
	It,
	however,
	made 	no
	specific
	reference 	to 	the
letters
	of
	commendation
	in
	the
	charges.
The
	second
	charge
	that
	MTA
	filed
	on 	March
	24, 	1980,
(S-CE-324) 	was
	withdrawn
	with
	prejudice,
	by
	stipulation
	of 	the
parties,
	on
	July
	15,
	1980.
In 	the
	third
	charge
	(S-CE-325)
	filed
	on March
	24,
	1980,
	MTA
charged
	that
	the
	District
	violated 	section
	3543.3
4 	and
subsections
	3543.S(c)
	and
	3547(d)
. 5 	The
	conduct 	complained
of
	consisted
	of
	regressive 	bargaining;
	reopening
	bargaining
	on
4section
	3543.3
	provides:
5
subsection
	3547(d)
	provides:
A
public
	school
	employer
	or
	such
representatives
	as
	it
	may
	designate
	who 	may,
but
	need
	not 	be,
	subject 	to
	either
certification
	requirements 	or 	requirements
for
	classified
	employees
	set 	forth
	in 	theEducation
	Code,
	shall
	meet 	and
	negotiate
with
	and
	only 	with
	representatives
	of
employee
	organizations 	selected
	as 	exclusive
representatives
	of 	appropriate 	units
	upon
request
	with 	regard 	to 	matters 	within 	the
scope 	of
	representation.
New
	subjects 	of 	meeting 	and
	negotiating
arising 	after
	the 	presentation 	of
	initial
proposals 	shall
	be 	made
	public 	within
24
	hours.
	If
	a
	vote
	is
	taken
	on 	such
subject
	by 	the 	public 	school 	employer, 	the
vote 	thereon 	by 	each 	member
	voting 	shallalso
	be 	made
	public 	within
	24
	hours.
6

7
an
	item
	previously
	agreed
	to
	by
	the
	parties
	on
	June
	16
	and
August
	12,
	1979;
	making 	a 	new 	demand
	at
	the
	table
	regarding
preparation
	periods
	which
	provided 	for
	less
	time 	than
	was
	the
past 	practice;
	contrary 	to
	prior 	tentative
	agreement,
	insisting
that
	MTA
	waive
	its
	right
	to 	represent
	employees
	at
	the
	first
informal
	step
	of 	the 	grievance 	process;
	and,
	as
	a
	reprisal
against
	MTA
	for
	engaging
	in
	protected
	activity,
	unequivocally
conditioning 	settlement
	on MTA's
	acceptance
	of
	a
	no-strike
clause
	and 	a
	change
	in
	preparation 	periods.
In
	S-CE-326,
	MTA
	alleged
	that
	the
	District
	violated
subsection 	3543.S(c).
	The
	charge
	referred
	to
	the
	District's
position
	in 	Superior
	Court
	on March 	12
	opposing
	MTA's
	request
for
	a
	24-hour
	transition
	period 	before 	implementation 	of 	the
court's
	temporary
	restraining
	order
	directing
	the 	resumption 	of
bargaining
	and
	termination 	of 	the
	work
	stoppage.
	MTA
	alleged
that,
	notwithstanding 	the
	District's
	opposition 	to 	the 	24-hour
period,
	the
	District 	failed 	to 	bargain 	with
	MTA
	immediately
following 	the
	court
	proceeding
	and
	subsequently
	excused
	its
conduct
	by
	claiming 	in	
a	
communication
	to
	its
	management
	staff
that
	it
	understood 	the 	court 	to
	have
	authorized
	a
	24-hour
review 	period.
On
	April 	14, 	1980,
	MTA
	filed
	S-CE-341
	alleging 	that 	the
District 	violated 	subsections
	3543 .5
(a),
	(b) 	and 	(c)
	of
	EERA
	by
reprimanding 	teachers 	at
	Mark 	Twain 	School
	who
	failed 	to
perform 	evaluation 	procedures.
	MTA
	asserted 	that 	the
7

8
employees' 	refusal 	to 	perform 	such 	tasks 	was 	protected
activity, 	and 	that 	multiple 	discipline 	imposed 	had 	the 	effect
of 	chilling 	the 	exercise 	of 	rights 	by 	employees 	and 	MTA.
Board 	Actions
In 	conjunction 	with 	MTA's 	three 	charges 	filed 	on
March 	6, 	1980, 	(S-CE-318, 	319 	and 	320) 	and 	the 	District's
charge 	(S-CO-48), 	PERB 	entertained 	requests 	from 	both 	parties
for 	injunctive 	relief. 	At 	the 	time 	the 	requests 	were 	received,
MTA 	was 	engaged 	in 	a 	work 	stoppage. 	The 	District, 	having
perceived 	the 	impasse 	procedure 	to 	be 	exhausted, 	refused 	to
resume 	negotiations 	and 	allegedly 	implemented 	unilateral
changes 	in 	the 	terms 	and 	conditions 	of 	employment. 	On
March 	10, 	1980, 	the 	Board 	initially 	concluded 	that 	insufficient
grounds 	existed 	for 	seeking 	injunctive 	relief 	against 	either
party. 	(Modesto 	City 	Schools 	(3/10/80) 	PERB 	Order 	No. 	IR-11.)
It 	retained 	jurisdiction 	over 	the 	unfair 	practice 	charges 	filed
with 	the 	Board 	and 	directed 	the 	general 	counsel 	to 	supplement
his 	earlier 	investigation.
Thereafter, 	on 	March 	12, 	1980, 	the 	Board 	issued 	Modesto
City 	Schools, 	PERB 	Order 	No. 	IR-12. 	Based 	on 	the 	general
counsel's 	further 	investigation, 	the 	Board 	concluded 	it 	was
probable 	that 	the 	District 	had 	violated 	subsection 	3543.S(c) 	of
EERA 	by 	refusing 	to 	meet 	and 	negotiate 	with 	MTA 	over
concessions 	and 	new 	proposals 	offered 	by MTA 	after 	the
exhaustion 	of 	impasse 	procedures 	and 	by 	unilaterally 	changing
8

some
	terms
	and
	conditions
	of
	employment 	beyond
	the
	District's
prerogative 	arising
	after
	impasse
	was
	exhausted.
	The
	Board
concluded
	that
	MTA's 	work
	stoppage
	was
	conducted
	to
	protest
	the
employer's
	action
	and 	was
	not 	per 	se
	prohibited
	by
	EERA.
In 	fashioning
	its
	injunctive
	relief,
	the
	Board
	adopted
	the
private
	sector 	rule 	prohibiting
	the
	employer
	from 	making
unilateral
	changes
	inconsistent
	with
	proposals
	offered 	to
	and
negotiated
	with 	the
	exclusive
	representative.
	The
	Board
ordered
	the
	District
	to 	rescind
	unilateral
	changes
	which
	were
inconsistent
	with
	its 	last
	best
	offer.
	This
	directive 	of
	the
Board
	was
	conditioned
	on MTA's
	reciprocal 	obligation
	to
	end
	its
work
	stoppage. 6
1.
	The
	District
	violated 	subsection
	3543.S{c)
	and
concurrently 	subsections
	3543.S(a)
	and 	{b)
	of
	EERA
	when
	it
Following
	17
	days
	of 	hearing, 	the 	hearing
	officer's
proposed
	decision 	issued
	on
	May
	5, 	1981. 	Here,
	we
	address
those 	issues
	which 	were
	excepted
	to
	by
	the
	parties.
EXCEPTIONS
9
The District excepts to the hearing officer's findings that:	
findings 	that:
6pursuant 	to 	the 	Board's 	Order,
	and 	on
	its
	behalf, 	the
Superior 	Court 	of 	Stanislaus
	County
	enjoined 	the
	District 	to
resume
	bargaining
	and
	to
	refrain
	from
	instituting 	certain
unilateral
	changes 	conditioned
	on MTA's
	cessation 	of
	its
	work
stoppage. 	This 	order
	was 	upheld 	in
	its 	entirety
	in 	Public
Employment
	Relations
	Board 	v. 	Modesto
	City 	Schools 	(1982)
136 	Cal.App.3d 	881.

10
unilaterally
	eliminated
	preparation 	periods
	for
	teachers 	of
grades 	4-6.
2.. 	The
	District
	violated
	subsections
	3543.S(a)
	and
	{b) 	by
reprimanding
	teachers
	at
	Mark 	Twain
	School
	for
	refusing 	to
participate
	in 	the
	development
	of
	the 	goals
	and
	objectives
phase
	of 	teacher
	evaluations.
3. 	Subsections
	3543.S{a)
	and 	(b)
	were
	violated
	when
	the
District
	reprimanded
	teachers 	for 	refusing 	to 	surrender 	school
keys
	and
	lesson 	plans
	prior
	to
	the
	strike
	and
	for
	failing
	to
attend
	a
	faculty
	meeting
	on
	the
	Friday 	before 	the
	strike
started.
4.
	The
	District's
	action
	of 	issuing
	letters
	of
commendation
	to
	employees
	who
	did 	not
	go 	on
	strike
	was 	a
violation
	of 	subsection 	3543.S(a).
5.. 	The
	District's
	refusal
	to 	negotiate
	and
	grant 	released
time
	after
	factfinding
	but 	before 	the
	injunction
	issued
	on
March 	12
	violated 	subsection
	3543.S(c}
	and
	concurrently
subsections
	3543.S(a)
	and
	(b).
6.. 	The
	District's 	unilateral
	implementation 	of
	policies
on
	February 	25, 	1980,
	inconsistent
	with
	its 	last
	best
	offer,
violated 	subsection
	3543.S(c) 	and
	concurrently 	subsections
3 5 4 3 • 5 (a) 	and 	(b) .
7.
	The
	District's
	newsletter 	of 	February 	14,
	1980
unlawfully 	misrepresented
	its
	bargaining 	position,
	and
	the
March 	3, 	1980, 	"Staff
	Update"
	constituted
	an
	illegal 	threat 	to
employees 	in 	violation 	of 	subsection 	3543.S(a).
10

1. 	MTA 	failed 	to 	raise 	objections 	to 	th
11
8. 	The 	District's 	bargaining 	position 	improperly
conditioned 	agreement 	on MTA's 	waiver 	of 	its 	right 	to 	represent
employees 	at 	the 	informal 	level 	of 	the 	grievance 	procedure 	in
violation 	of 	subsection 	3543.S(c).
9. 	MTA's 	work 	stoppage 	was 	protected 	activity 	and 	did 	not
violate 	EERA.
MTA 	excepts 	to 	the 	hearing 	officer's 	findings 	that:
1 . 	MTA failed to raise objections to the District's District's
issuance 	of 	letters 	of 	reprimand 	to 	employees 	who 	participated
in 	MTA's 	"work-to-rule 	program."
2.. 	It 	is 	inappropriate 	to 	order 	back 	pay 	for 	those
certificated 	employees 	whose 	preparation 	periods 	were
unilaterally 	eliminated.
3.. 	The 	District's 	insistence 	upon 	including 	a 	no-strike
clause 	and 	excluding 	a 	binding 	arbitration 	clause 	in 	the 	final
agreement 	was 	not 	a 	refusal 	to 	bargain.
After 	considering 	the 	entire 	record 	in 	this 	matter, 	the
Board 	adopts 	the 	hearing 	officer's 	findings 	of 	fact 	except 	as
specifically 	modified 	herein. 	We 	affirm 	in 	part 	and 	reverse 	in
part 	the 	hearing 	officer's 	conclusions 	of 	law, 	as 	discussed
below.
DISCUSSION
Because 	of 	the 	complexity 	of 	the 	facts 	and 	the 	numerous
charges, 	we 	consider 	the 	charges 	and 	the 	parties' 	exceptions
thereto 	as 	they 	arose 	within 	the 	collective 	bargaining 	process,
during 	the 	pre-impasse, 	impasse 	and 	post-impasse 	stages.
11

B
12
Pre-impasse
Elimination 	of 	Preparation 	Periods, 	September 	6, 	1979 	(Case
No. 	S-CE-320)
We 	reverse 	the 	hearing 	officer's 	finding 	that 	the 	District
violated 	subsection 	3543.5(c) 	when 	it 	unilaterally 	eliminated
preparation 	periods 	for 	teachers 	of 	grades 	4-6. 	In 	so
concluding, 	we 	do 	not 	depart 	from 	past 	decisions 	where 	the
Board 	has 	followed 	the 	federal 	rule,7 	as 	stated 	in 	NLRB 	v.
Katz 	(1962) 	369 	U.S. 	736 	[50 	LRRM 	2177], 	that 	a 	unilateral
change 	of 	a 	condition 	of 	employment 	within 	the 	scope 	of
representation 	without 	bargaining 	in 	good 	faith 	is 	a 	per 	se
violation 	of 	the 	Act. 	Davis 	Unified 	School 	District 	et 	al.
(2/22/80) 	PERB 	Decision 	No. 	116; 	San 	Francisco 	Community
College 	District 	(10/12/79) 	PERB 	Decision 	No. 	105.
7 It is 	appropriate 	for 	the 	Board 	to 	take 	guidance 	from
federal 	labor 	law 	precedent 	when 	applicable 	to 	public 	sector
labor 	relations 	issues. 	Firefighters 	Union, 	Local 	1186 	v. 	City
of 	Vallejo 	(1974) 	12 	Cal.3d 	608 	[116 	Cal.Rptr. 	507]; 	Los
Angeles 	County 	Civil 	Service 	Commission 	v. 	Superior 	Court
(1978) 	23 	Cal.3d 	65 	[151 	Cal.Rptr. 	547).
The 	threshold 	question 	here 	is 	whether 	the 	elimination 	of
preparation 	periods 	was 	a 	change 	affecting 	a 	matter 	within 	the
scope 	of 	representation. 	The 	Board 	determined 	in 	San Mateo 	City
School 	District 	(5/20/80) 	PERB 	Decision 	No. 	129, 	at 	p. 	19, 	that
preparation 	periods 	are 	within 	the 	scope 	of 	representation 8
8 subsection 	3543.2 	provides, 	in 	part:
(a) 	The 	scope 	of 	representation 	shall 	be
limited 	to 	matters 	relating 	to 	wages, 	hours
12

13
"to
	the
	extent
	that
	changes
	in
	available 	preparation
	time
affect
	the
	length
	of
	the
	employees'
	workday
	or
	duty-free
	time."
However,
	in
	that
	case,
	the
	Board 	found
	that
	preparation
time
	was
	clearly
	an
	obligation
	imposed 	by
	the
	District,
	that
the
	unilateral
	elimination 	of 	preparation
	time 	did
	not
eliminate
	the
	need 	nor
	the
	expectation
	that
	teachers
	would
	use
time
	to
	prepare
	and, 	hence,
	that
	the
	workday 	was
	extended.
Thus, 	the
	unilateral
	elimination 	of
	preparation
	periods
	is
	a
violation
	when
	the 	evidence 	introduced
	by
	the 	charging
	party
demonstrates
	an
	actual
	increase 	in
	workload
	(i.e.,
	that
	the
teachers
	did 	in
	fact
	extend
	their
	working
	hours 	for
	class
preparation).
We
	reject
	the 	hearing
	officer's
	conclusion
	that
	MTA
established
	an
	unlawful
	unilateral
	change
	but
	failed 	to
	justify
lost
	compensation 	based
	on 	a
	lengthened
	workday.
	To
	the
contrary,
	we
	find
	that,
	because
	MTA
	failed
	to 	demonstrate
	that
the
	altered 	preparation 	period 	in 	fact
	extended 	the 	workday,
	it
did
	not, 	therefore,
	meet
	its
	burden
	of 	proof.
	The
	allegation
regarding 	preparation
	time
	is
	dismissed.
Work-to-Rule 	Program
In
	September,
	MTA
	initiated
	a
	"work-to-rule" 	strategy
	and
advised
	its
	members
	to
	"do
	only 	those 	things
	which
	the 	law
absolutely 	requires.
11
	After
	this
	recommendation, 	members
	took
of 	employment, 	and 	other 	terms 	and
conditions 	of 	employment
...•
nd
13

In 	Palos 	Verdes 	Peninsula 	Unified 	School 	District 	(
14
a 	series 	of 	individual 	actions 	in 	which 	they 	refused 	to 	perform
a 	variety 	of 	duties. 	These 	included 	refusal 	to 	participate 	in
teacher 	evaluations, 	refusal 	to 	turn 	in 	keys 	and 	lesson 	plans,
refusal 	to 	attend 	a 	faculty 	meeting, 	and 	refusal 	to 	perform
certain 	other 	activities. 	Teachers 	subsequently 	received
reprimands 	for 	refusing 	to 	perform 	these 	activities, 	and 	allege
that 	such 	reprimands 	constituted 	illegal 	interference 	with, 	and
reprisal 	for, 	participation 	in 	protected 	Association 	activity.
In Palos Verdes Peninsula Unified School District (2/26/82)2/26/82)
PERB 	Decision 	No. 	195, 	at 	p. 	10, 	the 	Board 	found 	that 	the
refusal 	to 	perform 	normally 	required 	duties 	is 	unprotected
conduct 	ntantamount 	to 	a 	partial 	work 	stoppage 	or 	slowdown."
This 	is 	so 	even 	where 	the 	assigned 	duty 	is 	discretionary, 	if
the 	refusal 	is 	nfor 	reasons 	other 	than 	their 	professional
judgment, 	namely, 	as 	a 	pressure 	tactic 	during 	the 	course 	of
negotiations." 	As 	the 	Board 	stated:
Employees 	may 	not 	pick 	and 	choose 	the 	work
they 	wish 	to 	do 	even 	though 	their 	action 	is
in 	support 	of 	legitimate 	negotiating
interests.
Similarly, 	the 	National 	Labor 	Relations 	Board 	(NLRB) 	and 	the
courts 	have 	held 	that 	employees 	may 	not 	"continue 	to 	work 	and
remain 	at 	their 	positions, 	accept 	the 	wages 	paid 	them, 	and 	at
the 	same 	time 	select 	what 	part 	of 	their 	allotted 	tasks 	they
cared 	to 	perform 	of 	their 	own 	volition, 	or 	refuse 	openly 	or
secretly, 	to 	the 	employer's 	damage, 	to 	do 	other 	work." 	NLRB 	v.
14

15
Montgomery Ward 	{8th 	Cir. 	1946) 	157 	F.2d 	486 	[19 	LRRM 	2008];
Elk 	Lumber 	Co. 	{1950) 	91 	NLRB 	333 	[26 	LRRM 	1493]. 	It 	follows
that 	an 	employer 	does 	not 	violate 	the 	Act 	by 	disciplining
employees 	for 	participation 	in 	unprotected 	conduct 	unless 	that
discipline 	is 	motivated 	by 	anti-union 	animus. 	Palos 	Verdes,
supra, 	p. 	11; 	Hammermill 	Paper 	Co. 	v. 	NLRB 	{3d 	Cir. 	1981) 	658
F.2d 	155 	[108 	LRRM 	2001].
Thus, 	as 	to 	each 	activity 	which 	employees 	refused 	to
perform, 	it 	is 	necessary 	to 	determine 	first 	whether 	the
activity 	was 	a 	required 	duty 	or 	a 	purely 	voluntary 	one. 	Where
the 	refusal 	to 	perform 	an 	activity 	is 	found 	to 	be 	protected
conduct 	(i.e., 	the 	activity 	is 	purely 	voluntary), 	it 	is 	then
necessary 	to 	determine 	whether 	discipline 	imposed 	for 	that
conduct 	constitutes 	unlawful 	interference 	or 	discrimination
under 	the 	Act. 	Where 	the 	refusal 	to 	perform 	an 	activity 	is
found 	to 	be 	unprotected, 	further 	inquiry 	may 	be 	required,
nonetheless, 	where 	it 	is 	alleged 	that 	the 	nature 	or 	severity 	of
the 	discipline 	evidences 	improper 	motivation.
The 	hearing 	officer 	applied 	the 	test 	set 	forth 	in 	Carlsbad
Unified 	School 	District 	(1/30/79) 	PERB 	Decision 	No. 	89. 9
99 rn 	Carlsbad, 	the 	Board 	stated, 	at 	pp. 	10-11:
Where 	the 	charging 	party 	establishes 	that
the 	employer's 	conduct 	tends 	to 	or 	does
result 	in 	some 	harm 	to 	employee 	rights
15

16
In 	Novato 	Unified 	School 	District 	(4/30/82) 	PERB 	Decision
No. 	210, 	decided 	subsequent 	to 	the 	hearing 	officer's 	proposed
decision, 	the 	Board 	clarified 	the 	"but 	for" 	test 	set 	forth 	in
Carlsbad, 	supra. 	Under 	the 	Novato 	test, 	where 	an 	unfair
practice 	charge 	alleges 	that 	an 	employer 	discriminated 	or
retaliated 	against 	an 	employee 	for 	participation 	in 	protected
activity, 	the 	charging 	party 	has 	the 	initial 	burden 	of 	raising
the 	inference 	that 	the 	employee's 	protected 	conduct 	was 	a
motivating 	factor 	in 	the 	employer's 	decision 	to 	discipline 	the
employee. 	Since 	motivation 	is 	a 	state 	of 	mind 	which 	is 	often
difficult 	to 	prove 	by 	direct 	evidence, 	a 	charging 	party 	may
establish 	unlawful 	motivation 	by 	circumstantial 	evidence 	and
granted 	under 	the 	EERA, 	a 	prima 	facie 	case
shall 	be 	deemed 	to 	exist;
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;
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;
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.
16

17
inference
	from
	the
	entire
	record. 	Carlsbad, 	supra;
	Republic
Aviation
	Corp.
	(1945) 	324
	U.S.
	793 	[16
	LRRM
	620].
	If
	the
charging
	party
	makes
	such
	a
	showing, 	then 	the
	burden
	of 	proof
shifts
	to
	the
	employer
	to
	demonstrate
	that
	it
	would
	have
	taken
the
	same
	action
	in 	the
	absence
	of 	the
	employee's
	protected
activity.
	Wright
	Line,
	A
Division 	of
	Wright
	Line,
	Inc.
	(1980)
251
	NLRB
	1083 	[105
	LRRM
	1169].
Refusal 	to
	Participate
	in
	Teacher
	Evaluations	
(Case
No. 	S-CE-341)
In
	the
	1979-80
	school
	year,
	13
	teachers
	at
	Mark 	Twain
School
	refused 	to
	participate
	in 	the
	development
	of 	the
	goals
and
	objectives
	phase
	of 	teacher
	evaluations.
	The
	hearing
officer
	found
	that 	this
	conduct
	was
	protected
	because
	it
	was
essentially
	permissive
	activity
	and 	had 	no
	impact
	on
	students
and
	concluded
	that
	the
	District
	violated 	subsections
	3543.S(a)
and 	(b) 	by
	issuing
	reprimands 	for
	this
	conduct.
	We
	disagree.
The
	Stull
	ActlO	
requires 	that
	school
	districts
	throughout
the state establish uniform systems of teacher evaluation.
evaluation.
	The
lOThe
	Stull
	Act
	is
	codified
	at
	Education
	Code
	section
44660
	et
	seq. 	Section
	44660
	provides:
It
	is
	the
	intent 	of 	the 	Legislature 	that
governing 	boards
	establish
	a
	uniform 	system
of 	evaluation
	and
	assessment 	of 	theperformance 	of
	all 	certificated
	personnel
within 	each 	school
	district
	of 	the
	state,
including 	schools 	conducted 	or 	maintained
	by
county 	superintendents 	of 	education.
	The
system
	shall 	involve 	the 	development 	and
adoption 	by 	each 	school
	district 	of
17

18
record
	indicates 	that
	the 	procedure 	in 	the
	Modesto
	City
	Schools
had
	been
	in 	place
	for
	ten
	years.
	In
	their
	previous
	collective
bargaining
	agreement, 	the
	parties
	had
	negotiated
	and
	agreed
	to
incorporate
	an
	evaluation 	policy
	and
	procedure
	sufficient
	to
meet
	the 	requirements 	of 	the
	Stull
	Act.
	Thus,
	participation
	in
the
	evaluation
	procedure
	was 	a
	normal
	and
	required
	duty
	in
	the
District.
In
	1978,
	disagreements
	over
	the
	evaluation
	procedure
	had
arisen
	and
	were
	submitted
	to
	the 	grievance 	procedure. 	In
	1980,
however,
	13
	teachers
	at
	Mark 	Twain
	School
	flatly
	refused 	to
participate.
	The
	teachers
	signed
	a
	letter
	in
	which
	they
	stated
they
	"decline
	any
	further
	participation
	in 	the
	'Stull
Process'."
	The
	letter
	ends: 	"All 	of 	the
	above
	is
	subject 	to
change
	upon
	the 	signing 	of
	a
	binding
	contract
	between
	the
District
	and
	the
	Modesto
	Teachers
	Association."
	The
	intent
	was
clearly
	to 	put 	pressure
	on
	the
	District
	in
	contract
negotiations.
In 	the
	instant 	set
	of 	circumstances, 	the
	refusal 	to
participate
	in 	the
	evaluation
	procedure
	was
	unprotected
objective 	evaluation
	and
	assessment
guidelines
	which 	may,
	at
	the
	discretion 	of
the 	governing 	board,
	be 	uniform 	throughout
the
	district 	or,
	for 	compelling 	reasons,
	be
individually
	developed 	for
	territories
	or
schools 	within 	the
	district,
	provided 	that
all 	certificated 	personnel 	of 	the
	districtshall
	be
	subject 	to
	a 	system 	of 	evaluationand 	assessment 	adopted 	pursuant 	to 	this
article.
18

19
conduct 	in 	the
	nature 	of
	a
	partial
	work
	stoppage
	or
	slowdown.
Palos
	Verdes,
	supra.
	The
	District
	did 	not
	violate
	subsection
3543.S(a)
	or
	(b) 	by
	disciplining
	employees
	for
	this
	unprotected
activity.
The
	argument
	made
	by.the 	Association
	that
	its
	members 	would
have
	performed 	the 	duty
	had
	they
	been
	ordered 	to
	do
	so
	has
	no
merit.
	The
	lack 	of	
a 	new
	directive
	does
	not
	change
	the
	nature
of
	an
	activity
	from 	a
	required 	duty
	to	
a	
voluntary
	exercise.
There
	is
	no
	evidence
	to 	indicate 	that
	the
	District
	revoked
existing
	evaluation
	requirements 	or 	in
	any
	way 	gave
	teachers
leave 	to 	absent
	themselves
	from
	their
	contractual 	obligation.
The
	Association
	argues
	that
	the
	District's
	issuance
	of
successive
	letters
	of
	reprimand
	for 	the
	same
	incident
	raises
	an
inference 	of 	discriminatory 	motivation.
	In
	Marin
	Community
College
	District
	(11/19/80)
	PERB
	Decision
	No.
	145, 	the
	Board
stated, 	at
	p. 	11:
•..
	illegal
	purpose 	harbored
	by
	the
discriminating
	employer
	may 	be
	inferred
	from
the 	circumstances 	surrounding 	the
discipline
	.••.
While
	the 	record
	shows
	that
	a
	letter
	of
	reprimand
	and 	a
follow-up
	memo
	were
	placed 	in 	personnel
	files, 	this
	evidence
	is
insufficient
	to 	raise
	an
	inference 	that 	the 	actions 	taken
	were
discriminatory.
We
	have
	already
	found
	that 	the
	refusal 	to 	participate 	in
required 	duties 	is 	not 	protected 	organizational 	activity.
	we,
19

20
therefore,
	dismiss 	the 	charge
	of
	a
	violation
	of
	subsections
3543.S(a)
	and
	(b).
The
	Association
	also 	alleged
	a
	violation
	of 	subsection
3543.S(d).
	We
	find
	no
	evidence
	to 	support 	the
	allegation 	that
the
	District's
	activity
	was
	an
	attempt 	to
	dominate
	or
	interfere
with 	the
	employee
	organization,
	nor
	did
	it
	amount
	to
	an
encouragement
	to·
join
	one
	organization
	as
	opposed
	to 	another.
we,
	therefore,
	dismiss 	the 	alleged
	violation
	of 	subsection
3543.
5 (d) •
Refusal 	to
	Turn
	in
	School
	Keys	
(Case
	No.
	S-CE-323)
The
	hearing
	officer
	determined
	that
	the
	District
	violated
subsections
	3543.S(a)
	and
	(b) 	by
	issuing
	letters
	of
	reprimand
to 	teachers
	for
	failing 	to 	turn
	in 	school
	keys
	prior
	to 	the
strike.
Again,
	we
	disagree
	with 	the 	hearing
	officer's
	conclusion.
A
District
	policy 	called
	for 	"dismissal
	if
	there
	was
	persistent
refusal
	to 	turn 	in 	keys."
	Thus,
	turning 	in
	keys
	on
	request
	was
a
	normal
	requirement,
	and 	employees
	knew
	that 	discipline
	could
result
	from 	a
	refusal
	to
	do
	so. 	Consequently,
	we
	find
	that
	the
refusal 	to 	turn 	in
	keys
	was
	not 	protected 	conduct.
	Even 	though
the 	request 	to 	turn 	in
	keys
	was 	made
	in 	response 	to 	protected
strike 	activity
	(see
	discussion, 	infra),
	the
	keys 	belonged 	to
the
	District,
	and
	it
	had
	every 	legitimate 	right 	to 	require
their 	return
	as 	a
	security 	precaution.
	Being 	required 	to 	turn
in 	keys 	in
	no 	way
	interfered 	with 	the
	strike. 	Neither was the	
Neither 	was 	the
20

ment
	that
	a
	person
	wou
21
requirement
	imposed
	in
	a
	discriminatory
	manner
	against
strikers,
	since 	the
	request
	was 	made
	of
	all
	teachers 	before
	the
strike
	began.
The Association's argument that a person would have to have
have
	to
	have
received
	a
	previous
	oral
	or
	written
	warning
	to 	get
	a
	reprimand
has
	no
	merit.
	While
	the
	District's
	policy 	required
"persistent" 	refusal
	to
	warrant
	dismissal,
	a
	lesser
	penalty
	was
imposed
	here.
	Moreover,
	the
	absence
	of
	penalties
	in
	prior
routine 	situations
	need
	not
	dictate
	the
	District's
	response
	to
an 	imminent
	strike,
	an
	unprecedented
	and
	dire
	circumstance.
The
	District
	took
	appropriate
	security
	measures
	which
	did 	not
violate
	subsection
	3543.S(a)
	or
	(b)
	of 	the 	Act.
Refusal
	to
	Submit 	Lesson
	Plans	
(Case 	No. 	S-CE-323)
Preparation 	of 	lesson 	plans 	for
	substitute
	teachers
	was 	a
common 	and
	generally
	followed
	practice 	prior
	to
	the
	strike.
The
	day
	before
	an
	absence
	was
	the 	usual 	time
	for 	lesson 	plans
to
	be
	turned
	in,
	and
	reprimands 	for
	failing
	to 	turn 	in 	lesson
plans
	were
	not 	out 	of 	the 	ordinary.
	One
	principal
	testified
that
	reprimands
	were
	not
	used
	very
	often
	because
	teachers
rarely 	failed 	to 	turn 	in 	lesson 	plans.
	Thus,
	we
	find
	that
	the
refusal 	to 	turn 	in 	lesson 	plans
	was
	not 	protected 	conduct.
Additionally, 	the
	District's 	justification
	for 	the 	lesson
plan 	policy
	was
	to 	provide 	continuity 	of 	instruction 	for 	the
students,
	a
	legitimate 	concern.
	The
	hearing 	officer 	maintains
that, 	if
	the
	District
	was 	so 	concerned 	about
	its 	educational
21

22
responsibilities,
	it
	would
	have
	taken
	steps
	sooner
	to
	notify
teachers
	concerning
	lesson 	plans.
	Yet,
	the 	record
	indicates
that
	the
	strike
	vote
	was
	taken
	on Wednesday,
	February
	27;
	memos
concerning
	keys
	and
	lesson 	plans
	were
	issued
	on
	Thursday,
February
	28; 	and
	principals
	asked
	for 	the
	lesson
	plans
	on
Monday, 	March
	3, 	the
	day
	before 	the
	strike.
	The
	District
	could
hardly
	have 	communicated
	its
	expectations
	more
	quickly.
We
	find
	no
	persuasive
	evidence
	that
	the
	District's
motivation
	was
	to 	harass 	or
	retaliate
	against
	the
	teachers
	for
participation
	in 	protected
	activity
	rather
	than
	to 	provide 	for
continuity
	of 	education.
	Thus,
	contrary 	to
	the 	hearing
officer,
	we
	find
	no
	violation
	of 	subsection
	3543.S(a)
	or
	{b}
	in
the
	issuance 	of 	reprimands 	for
	failure
	to
	comply
	with
	the
District's
	order 	to 	prepare 	lesson 	plans.
Refusal
	to
	Attend
	Faculty
	Meeting	
(Case 	No. 	S-CE-323)
The
	District
	also
	issued
	letters
	of
	reprimand
	to 	teachers
who
	did 	not
	attend
	a March 	3
	faculty
	meeting, 	the
	last
	faculty
meeting 	before 	the
	strike.
	The
	record 	demonstrates
	that
faculty
	meetings
	were
	part
	of
	certificated
	employees'
	duties,
and
	that
	teachers
	were
	expected 	to 	attend. 	Therefore,
teachers' 	refusal 	to 	attend 	the 	faculty
	meeting
	is
	not
	a
protected 	activity.
Here,
	MTA
	argues
	that 	the 	normal 	procedure 	of 	merely
informing 	the 	missing 	teachers 	at
	the 	time 	of 	the 	next 	faculty
meeting 	could 	have 	been 	followed, 	and
	alleges 	that 	the
22

23
reprimands
	were
	motivated
	by
	an
	unlawful
	retaliatory
	purpose.
The
	record
	does
	not
	support
	this 	allegation.
	To
	the
	contrary,
the
	District
	claims
	that
	the
	faculty
	meeting
	was
	necessary
	to
its
	preparations 	to 	continue
	classes
	and
	to
	retrieve
	school
keys.
	We
	find
	this 	justification
	sufficient
	to
	uphold
	the
issuing 	of
	reprimands
	and
	dismiss 	the
	violation
	of 	subsections
3543.S(a)
	and 	(b)
	charged
	by
	the 	Association.
Refusal 	to
	Perform 	Other
	Activities
MTA
	excepts 	to
	the 	hearing
	officer's
	failure
	to 	decide
	the
disposition
	of
	letters
	of
	reprimand
	placed
	in 	personnel
	files
for
	nonparticipation
	in
	other
	activities
	in 	the
	work-to-rule
program.
	In
	a
	footnote,
	the 	hearing
	officer 	stated 	that
	MTA
raised
	no
	objection 	to
	the 	reprimands,
	other
	than 	those
	issued
for
	failing
	to 	turn 	in
	keys
	and
	lesson 	plans
	and
	attend
	a
faculty
	meeting,
	all
	of
	which 	were
	filed
	as
	separate 	charges.
He,
	therefore,
	would
	not 	consider 	those 	reprimands.
MTA
	argues
	that
	the 	language
	of
	Charge
	No.
	S-CE-318, 	which
alleged 	violations
	of 	subsections
	3543.S(a}
	and 	(b)
	for
	acts
which 	were
	discriminatory 	to 	teachers
	engaged
	in 	concerted
activities,
	was
	sufficiently
	broad
	to 	include 	consideration 	of
the 	work-to-rule 	reprimands.
	It
	further
	argues
	that
	the 	issue
was
	raised 	at
	every 	step 	of 	the 	proceeding
	and
	fully 	litigated.
,In 	Santa 	Clara 	Unified 	School
	District
	(9/26/79)
	PERB
Decision
	No. 	104, 	the 	Board 	decided 	to 	follow
	NLRB
	precedent
concerning 	unalleged 	violations. 	Unalleged 	violations 	will
	be
23

24
examined
	where
	they
	are 	intimately
	related
	to
	the
	subject
matter 	of 	the 	complaint,
	where
	the
	issues
	have 	been
	fully
litigated,
	and 	where
	the
	parties
	have
	had 	a
	chance
	to
	examine
and
	cross-examine
	witnesses.
	Southwestern
	Bell
	Telephone
	Co.
(1978) 	237
	NLRB
	110 	[99
	LRRM
	1012]; 	Holly
	Manor
	Nursing
	Home
(1978)
	235
	NLRB
	426 	[98
	LRRM
	1291].
	Such
	is
	the 	case
	here.
The
	parties
	have
	clearly
	considered 	the
	reprimands
	an
	issue
	in
contention.
	Witnesses
	were 	examined 	and
	cross-examined
	in
detail,
	and
	the
	issue
	has
	been
	thoroughly
	briefed.
	Therefore,
we
	find
	no
	reason
	to 	refuse 	to 	consider 	the
	issue.
Here,
	teachers
	were
	reprimanded
	for 	refusing 	to
	perform
	a
variety
	of
	duties.
	The
	past 	practice
	in
	the
	District,
	as
established
	in 	the
	record,
	was
	that
	some
	of 	these
	duties
	were
purely 	voluntary
	while
	others
	were
	assigned. 	Period
substitution,
	extra 	sixth-period
	assignments
	and
	taking
	a
student
	teacher
	were
	voluntary
	activities.
	Reading
	and 	math
continua, 	in-service 	faculty 	training
	and
	bulletin
	board
preparation
	were
	assigned
	duties. 	Certain 	other 	assigned 	tasks
were
	called 	adjunct 	duties
	and 	had 	a
	preliminary 	voluntary
stage .	
stage.
	That
	is,
	principals
	would
	ask 	for 	volunteers, 	but
	if
	no
volunteers
	were
	forthcoming, 	they
	would 	make
	assignments
	to
insure 	that
	the
	activity
	was
	performed. 	After-school
activities,
	such 	as
	selling 	tickets 	at 	sporting 	events,
chaperoning 	dances 	and
	assemblies
	and
	advising 	student 	clubs
were 	of 	this 	type.
24

25
The
	refusal
	to
	do
	voluntary
	activities 	is
	protected
conduct,
	while
	the
	refusal
	to
	do
	normally
	required 	assigned
	and
assigned 	adjunct
	duties
	is
	not.
	Palos 	Verdes,
	supra. 	The	The
District's
	issuance 	of
	letters
	of
	reprimand
	for
	refusal 	to
	do
the 	aforementioned 	assigned
	and
	assigned
	adjunct
	duties
	is
	not
a
	violation
	of
	the 	Act.
	However,
	letters
	of
	reprimand
	for
failure
	to
	do
	purely 	voluntary
	activities
	violate
	subsection
3543.S(a).
Applying the Carlsbad test,
test,11	
we
	note
	that
	letters
	of
reprimand 	for
	such
	protected
	activity
	would
	cause
	at 	least
slight
	harm
	to
	the
	organizational 	rights
	of 	the
	employees
	by
interfering
	with
	and
	discouraging
	employees
	in 	the
	exercise
	of
rights
	guaranteed
	by
	the 	Act.
	The
	District
	provides
insufficient 	justification
	to 	counterbalance 	the
	harm.
	Indeed,
the
	District
	advised 	schools 	not 	to 	give 	reprimands 	for
	failure
to
	participate
	in 	voluntary
	activities.
	In
	past
	slowdowns,
reprimands
	were
	not 	issued 	for 	the
	same
	tactics.
	We,
therefore,
	hold
	that
	the 	placing 	of
	letters
	of 	reprimand
	in 	the
personnel
	files
	of 	teachers 	for 	refusing 	to
	do
	period
substitution, 	extra 	sixth-period
	assignments 	or 	to 	accept
	a
student 	teacher 	violated 	subsections
	3543.S(a} 	and
	(b),
	and
	all
such
	letters 	shall
	be 	removed 	from
	the
	files
	and
	destroyed.
11w
hen 	the 	alleged 	violation 	of 	subsection 	3543.S(a)
	is
in 	the 	nature 	of 	unlawful 	interference 	with 	employee
	rights,
the 	Board 	continues 	to 	use 	the 	test
	as 	articulated 	in 	Carlsbad,
supra, 	at 	footnote 	9.
25

in 	per
26
Conditionin~ 	Agreement 	on 	Abandonment 	of 	Association
Representation 	at 	the 	"Informal" 	Level 	of 	the 	Grievance
Procedure 	(Case 	No. 	S-CE-325)
In 	their 	prior 	agreement, 	the 	District 	and 	the 	Association
had 	negotiated 	a 	grievance 	procedure 	which 	included 	a
preliminary 	step 	that 	encouraged 	"useful 	and 	necessary 	private
meetings 	between 	supervisors 	and 	employees. 11 12 	In 	the 	past,
this 	language 	did 	not 	preclude 	the 	presence 	of 	an 	Association
representative 	at 	this 	informal 	level 	of 	the 	grievance
procedure. 	However, 	in 	the 	1979-80 	negotiations, 	the 	District
12The 	parties' 	collective 	bargaining 	agreement 	provides,
in pertinent part:
12
ARTICLE 	III: 	CONTRACTUAL 	GRIEVANCE 	PROCEDURE
Section 	A. 	Purpose
The 	purpose 	of 	this 	procedure 	is 	to 	secure,
at 	the 	lowest 	possible 	administrative 	level,
equitable 	solutions 	to 	the 	problems 	which 	may
from 	time 	to 	time 	arise 	concerning 	the
interpretation 	or 	application 	of 	this
agreement. 	Both 	parties 	agree 	that 	these
proceedings 	will 	be 	kept 	as 	informal 	and
confidential 	as 	may 	be 	appropriate 	at 	any
level 	of 	the 	procedure. 	useful 	and 	necessary
private 	meetings 	between 	supervisors 	and
employees 	they 	supervise 	are 	encouraged. 	It
is 	intended 	that 	this 	grievance 	procedure
shall 	be 	utilized 	only 	after 	other 	means 	to
satisfactorily 	resolve 	problems 	have 	been
unproductive. 	At 	least 	one 	private
conference 	between 	employee 	and 	supervisor
shall 	take 	place 	prior 	to 	initiation 	of 	this
grievance 	procedure. 	Ideally, 	there 	would 	be
a 	number 	of 	informal 	discussions 	and 	a
continuing 	interchange 	of 	views 	between
employee 	and 	supervisor 	before 	filing 	a
formal 	grievance.
26

27
went 	to 	impasse 	maintaining 	the 	position 	that 	this 	language
must 	henceforth 	be 	interpreted 	to 	preclude 	the 	Association 	from
representing 	employees 	at 	the 	informal 	level.
The 	language 	of 	the 	contract 	makes 	it 	clear 	that 	settlement
of 	a 	grievance 	at 	the 	informal 	step 	is 	possible 	and 	indeed
encouraged. 	It 	also 	mandates 	that 	"At 	least 	one 	private
conference 	between 	employee 	and 	supervisor 	shall 	take 	place
prior 	to 	initiation 	of 	this 	grievance 	procedure." 	Even 	though
the 	procedure 	is 	described 	as 	informal, 	it 	is 	an 	integral 	and
mandatory 	part 	of 	the 	dispute 	resolution 	process 	agreed 	upon 	by
the 	parties.
Section 	3543.113 	of 	EERA 	provides 	that 	"Employee
organizations 	shall 	have 	the 	right 	to 	represent 	their 	members
13section 	3543.1 	provides, 	in 	pertinent 	part:
(a) 	Employee 	organizations 	shall 	have 	the
right 	to 	represent 	their 	members 	in 	their
employment 	relations 	with 	public 	school
employers, 	except 	that 	once 	an 	employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit 	pursuant 	to 	Section 	3544.1
or 	3544.7, 	respectively, 	only 	that 	employee
organization 	may 	represent 	that 	unit 	in
their 	employment 	relations 	with 	the 	public
school 	employer •...
. 	. 	. . . 	. . 	. 	. . 	. 	. 	. 	. 	. 	. 	. . . . 	.
(c) 	A reasonable 	number 	of 	representatives
of 	an 	exclusive 	representative 	shall 	have
the 	right 	to 	receive 	reasonable 	periods 	of
released 	time 	without 	loss 	of 	compensation
when 	meeting 	and 	negotiating 	and 	for 	the
processing 	of 	grievances.
27

28
in 	their 	employment 	relations 	with 	public 	school 	employers."
The 	grievance 	procedure 	is 	perhaps 	the 	most 	important 	point 	at
which 	employee 	organizations 	represent 	their 	members 	in 	their
day-to-day 	employment 	relations. 	EERA 	also 	provides 	that 	a
grievance 	may 	be 	settled 	between 	the 	employer 	and 	an 	individual
employee, 	but 	is 	carefully 	drawn 	so 	as 	not 	to 	diminish 	an
employee 	organization's 	right 	to 	fulfill 	its 	representational
duties under the Act. 1t.1 4
14	14section 	3543 	provides, 	in 	pertinent 	part:
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 	representative
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
representative, 	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 	inconsistent 	with
the 	terms 	of 	a 	written 	agreement 	then 	in
28

mployee
	organization
	involveme
29
In
	Mount
	Diablo
	Unified
	School
	District
	et 	al.
	(12/30/77)
EERB
	Decision
	No.
	44,
15	
the
	Board
	held
	that
	the 	grievance
process
	is
	an
	"employment
	relation"
	within
	the
	meaning
	of
subsection 	3543.l(a)
	and,
	therefore,
	employee
	organizations
have
	a
	statutory 	right
	to 	represent
	employees
	in 	the
presentation 	of
	their
	grievances.
	Indeed, 	the
	statutory 	right
of
	unions
	to 	represent
	employees
	in 	grievances
	is
	of
	such
significance 	that
	it
	includes
	not 	only
	negotiated 	grievance
procedures 	but
	non-negotiated
	ones 	as
	well.
	See
	also
	Santa
Monica
	Community
	College
	District
	(9/21/79)
	PERB
	Decision
No.
	103.
	We
	have
	recently
	held
	that 	this 	right
	extends
	to
	the
informal 	stage 	of
	the 	grievance 	procedure.
	Rio 	Hondo 	Community
College
	District
	(12/28/82)
	PERB
	Decision
	No.
	272.
15prior 	to 	January 	1, 	1978,
	PERB 	was 	known 	as 	the
Educational 	Employment 	Relations 	Board.
EERA foresees employee organization involvement in all
in
	all
phases 	of 	the 	grievance 	procedure,
	even
	those 	procedures 	in
which
	an 	employee
	may
	seek
	individual 	representation.
	While
the
	District's
	interpretation
	of 	the
	contract
	may 	be
	correct,
and
	while 	the
	District
	may
	negotiate
	over 	every 	aspect 	of
	the
grievance 	procedure,
	it
	may
	not
	demand
	to
	impasse
	that 	the
Association
effect;
	provided
	that
	the 	public 	schoolemployer
	shall
	not 	agree 	to
	a
	resolution 	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.
29

able,
No-Strik
pts
	to
	the 	hearing
	officer's
	concl
30
abandon
	rights
	guaranteed
	under
	section
	3543.
	To
	do
	so
	is
	a
violation
	of
	the 	duty
	to
	bargain
	as
	to
	that
	item
	and
	evidence
of
	the
	District's
	general 	unwillingness 	to 	bargain 	in
	good
faith.
	As
	the
	NLRB
	stated
	in
	Bethlehem
	Steel
	Company
	(1950)
	89
NLRB
	341 	[25
	LRRM
	1564]:
True,
	a
	grievance
	procedure
	is
	bargain
but
	it
	does
	not
	therefore
	follow
	that
	the
Respondents
	were
	privileged
	to
	exercise
control
	over
	the 	Union's
	statutory 	right
	to
attend
	grievance 	adjustments
	by
	withholding
agreement,
	even
	in
	good
	faith,
	unless 	the
Union
	waived
	this 	right.
	Nor 	do
	we
	perceive
any
	statutory
	policy
	that 	will
	be
	served
	by
recognizing
	such
	control
	in 	the
	Employer.
We
	find, 	therefore, 	that
	the
	District
	violated 	subsections
3543.S(a),
	(b) 	and 	(c) 	by
	conditioning
	agreement
	on
	the
Association's
	abandonment
	of
	its
	right
	of
	representation
	at
	the
informal
	level
	of
	the 	grievance 	procedure.
Conditioning Agreement on Inclusion of a No-Strike Clause and
Clause
	and
Exclusion 	of
	a
	Binding
	Arbitration
	Clause
	(Case 	No.
	S-CE-325)
MTA excepts to the hearing officer's conclusion that the
usion
	that
	the
District
	did 	not 	per 	se
	refuse 	to 	bargain
	by
	insisting
	on
	a
no-strike
	clause 	in 	the
	contract
	while
	at
	the
	same
	time
resisting
	the 	inclusion 	of
	a
	binding
	arbitration
	clause 	in 	the
grievance 	procedure.
	MTA
	cites
	the
	Supreme
	Court's 	holding 	in
Textile
	Workers 	Union 	v.
	Lincoln 	Mills
	(1957) 	353
	U.S. 	448,
	455
[40
	LRRM
	2113]
	that 	"the 	agreement
	to 	arbitrate
	grievance
disputes 	is
	the 	quid 	pro
	quo
	for
	an 	agreement 	not 	to
	strike."
The
	Association's 	position 	is 	that 	this 	decision, 	in
	light
	of
30

ed
	do
	not
	s
The 	evidence 	here 	does 	not 	indicate 	tha
31
later
	NLRB
	decisions
	(Abingdon
	Nursing
	Center
	(1972) 	197
	NLRB
781 	[80
	LRRM
	1470]
	and
	Alba
	Waldensian,
	Inc.
	(1967) 	167
	NLRB
695 	[66
	LRRM
	1145]),
	requires
	a
	finding 	of
	a
	per 	se
	violation
when
	an 	employer
	insists
	to
	impasse
	on 	a
	no-strike 	clause,
	yet
refuses 	to
	agree
	to
	binding
	arbitration
	of 	grievances.
We find, however, that the cases cited do not support the
upport 	the
Association's 	position.
	In
	Textile
	workers
	Union,
	supra,
	the
contract
	between
	the
	parties
	included
	an
	arbitration
	clause
which
	the
	union
	sought
	to
	enforce 	in
	federal 	court.
	The
	court
concluded
	that,
	if
	it
	could 	enforce
	a
	no-strike
	agreement
against
	a
	union,
	it
	could 	enforce
	an
	arbitration
	clause
	against
the
	employer
	by
	virtue
	of
	section
	301
	of
	the
	Labor-Management
Relations
	Act.
In
	NLRB
	v.
	Cummer-Graham
	(5th
	Cir.
	1960) 	279
	F.2d
	757 	[46
LRRM
	2374], 	the
	court
	held
	that
	the
	Textile
	workers
	decision
does
	not
	require
	a
	finding
	that 	failure
	to
	agree 	to
	a
no-strike/arbitration
	combination
	constitutes
	a
	per 	se
	refusal
to 	bargain.
	See
	also
	Drake
	Bakeries	
v.	
Bakery Workers 	(1962)
370
	U.S.
	254 	[50
	LRRM
	2440, 	2443].
	Nor 	do
	the 	cases
	cited
	by
MTA
	require 	that 	conclusion.
	Both
	hold
	that 	failure
	to 	agree,
or 	conditioning
	agreement 	on 	such
	a
	combination,
	may 	be 	an
indication 	of
	bad
	faith 	if
	the 	intent 	of 	the
	adamant
	position
is 	to
	avoid
	a
	contract 	or
	weaken
	the 	union.
The evidence here does not indicate that the District's	
the
	District's
position
	was 	taken 	only 	to 	avoid 	a
	contract. 	In
	fact, 	the
31

32
previous
	contract
	had
	contained
	a
	no-strike
	clause
	and
	did
	not
provide
	for
	arbitration.
We
	find
	that
	the
	District's
	position
	was
	neither
	a
	per
	se
refusal
	to
	bargain
	nor
	evidence
	of
	bad
	faith
	and,
	accordingly,
affirm
	the 	hearing
	officer's
	dismissal 	of
	this 	allegation.
Impasse
Refusal
	to
	Negotiate 	After 	Factfinding	
(Case 	No.
	S-CE-319)
The
	District
	excepts
	to
	the
	hearing
	officer's
	conclusion
that
	its
	refusal
	to
	negotiate,
	after
	publication
	of 	the
factfinder's
	report
	on
	January
	30 	and
	prior
	to 	the
	court
	or<ler
to
	negotiate, 	constituted
	a
	violation
	of 	subsection
	3543.S(c)
and
	derivative 	violations
	of 	subsections
	(a) 	and
	(b).
	The
District
	maintains
	that
	its
	duty
	to 	negotiate 	dissolved 	with
the 	completion 	of 	the
	impasse
	procedure,
	that
	impasse
automatically
	follows 	the 	publishing 	of 	the
	factfinder's 	report
and,
	further, 	that
	EERA
	differs
	from
	the 	National
	Labor
Relations
	Act
	(NLRA)
	in
	that,
	once
	reached,
	a
	deadlock 	under
EERA
	cannot
	be
	broken
	by
	concessions.
We
	disagree.
	As
	discussed 	herein,
	we
	find 	that
	the
statutory
	impasse
	procedures 	are 	exhausted 	only
	when
	the
factfinder's 	report
	has 	been
	considered 	in
	good
	faith,
	and 	then
only
	if 	it
	fails
	to
	change 	the 	circumstances
	and
	provides
	no
basis 	for 	settlement 	or
	movement
	that 	could 	lead 	to
settlement.
	At
	that 	point,
	impasse 	under
	EERA
	is 	identical 	to
impasse 	under 	the
	NLRA;
	either 	party
	may
	decline 	further
32

requests 	to
	bargain,
	and
	the
	employer
	may
	implement
	policies
reasonably
	comprehended
	within 	previous
	offers
	made 	and
negotiated
	between
	the
	parties. 	If
	the
	factfinding
	report,
and/or
	new
	proposals
	made
	after
	the
	report,
	change
circumstances
	and
	bargaining
	is
	subsequently
	resumed
	but
	again
deadlocks, 	the
	Board
	cannot
	recertify
	impasse
	or
	reimpose
	the
already
	exhausted
	impasse
	procedures.
We
	find
	this 	result
	compelled
	by
	the
	clear
	language
	of
Article
	9
	of 	the
	Act 	and
	the
	legislative
	intent
	manifested
therein.
	In
	addition,
	our
	holding
	is
	consistent
	with
	that
	of
the
	Fifth
	Appellate
	District
	Court
	in
	PERB
	v.
	Modesto
	City
Schools, 	supra.
Impasse 	has 	been
	described
	as
	that
	"point
	at
	which
	the
parties
	have
	exhausted 	the
	prospects 	of 	concluding
	an
	agreement
and
	further 	discussions
	would 	be
	fruitless.
	Robert
	A. 	Gorman,
Labor
	Law
	(1976),
	p.
	448.
Under the NLRA:
LRA:
Whether
	bargaining
	impasse
	exists 	is
	a
matter 	of
	judgment.
	The
	bargaining
	history,
the
	good
	faith
	of 	the
	parties
	in
negotiations,
	the 	length 	of 	the
negotiations,
	the 	importance
	of 	the 	issue 	or
issues
	as
	to
	which
	there
	is
	disagreement,
the 	contemporaneous 	understanding 	of
	the
parties
	as 	to 	the
	state
	of 	negotiations 	are
all
	relevant 	factors 	to
	be
	considered 	in
deciding 	whether 	an 	impasse 	in 	bargaining
existed. 	Taft 	Broadcasting
	Co. 	(1967) 	163
NLRB
	475
	enf'd
	sub
	AFTRA
	v.
	NLRB
	395 	F.2d
622 	(D.C.
	Cir. 	1968).
33

34
Impasse
	is 	significant
	in
	that
	once
	it
	is
	reached,
	either
party
	may
	refuse 	to 	negotiate
	further,
	and
	the
	employer
	is
	free
to
	implement
	changes
	already 	offered
	the 	union.
	See
	Hi-Way
Billboards,
	Inc.
	(1973) 	206
	NLRB
	No. 	1 	[84
	LRRM
	1161]
	and
	Fine
Organics, 	Inc.
	(1974) 	214
	NLRB
	No. 	2
	(88
	LRRM
	1130].
However, 	under
	NLRB
	precedent,
	impasse
	suspends
	the
bargaining
	obligation
	only
	until
	"changed
	circumstances"
indicate
	an
	agreement
	may 	be
	possible.
	Hi-Wav
	Billboards,
Inc.,
	supra,
	and
	Providence
	Medical 	Center
	(1979)
	243
	NLRB
No.
	61 	[102
	LRRM
	1099].
	"Changed
	circumstances" 	are 	those
movements
	or
	conditions
	which 	have
	a
	significant
	impact
	on
	the
bargaining 	equation.
	Among
	the 	circumstances
	which
	will
restore
	the
	obligation
	to
	negotiate 	is
	a
	concession 	or
	series
of 	concessions	
by	
one
	of 	the
	parties.
	See
	NLRB
	v. 	Sharon
	Hats,
Inc.
	(5th
	Cir.
	1961) 	289
	F.2d 	628 	[48
	LRRM
	2098]
	enf.
	(1960)
127
	NLRB
	947 	[46
	LRRM
	1128].
	The
	concessions
	need
	only
"indicate 	that 	further 	face-to-face
	bargaining
	might
	be
fruitful."
	R. 	James 	Span 	(1971) 	189
	NLRB
	219 	[76
	LRRM
	1671].
The
	courts
	have 	looked
	to 	the
	NLRB
	to
	establish
	whether
concessions
	were
	substantial
	enough
	to
	"open 	a
	ray 	of
	hope 	with
a
	real 	potentiality
	for 	agreement
	if
	explored 	in
	good
	faith
	in
bargaining 	sessions."
	NLRB
	v.
	Webb
	Furniture
	(4th
	Cir.
	1966)
366
	F.2d
	315 	[63
	LRRM
	2163].
These 	decisions 	of 	the
	NLRB
	spring
	from 	the 	heart 	of 	the
NLRA's 	purpose:
34

•.•
	to 	mitigate
	and
	eliminate
	these
obstructions
	when
	they
	have
	occurred
	by
encouraging 	the
	practice
	and
	procedure 	of
collective
	bargaining
	••.
	for 	the
	purpose
of
	negotiating
	the
	terms
	and
	conditions 	of
their
	employment
.•••
	(29
	u.s.c.
	section
151.)
35
The
	NLRB
	encourages,
	through
	face-to-face
	bargaining, 	the
exploration
	of
	new
	proposals
	which
	may
	provide
	avenues
	to
resolve 	differences
	and
	arrive
	at
	a
	final
	agreement.
EERA
	was
	enacted
	by
	the
	Legislature 	"to
	promote
	the
improvement
	of 	personnel
	management 	and
	employer-employee
relations
	within
	the
	public
	school 	system." 	(Section 	3540.)
EERA, 	no
	less
	than 	the
	NLRA,
	is
	designed 	to
	promote
	and
encourage 	the
	resolution
	of 	disputes
	through
	the 	give
	and
	take
of
	collective
	bargaining.
	Under 	EERA,
	the 	impetus
	to
	keep
	the
parties
	bargaining
	is
	so
	strong
	that
	an
	extensive
	impasse
procedure
	was
	written 	into
	the
	Act
	(Article
	9,
	section
	3548
et
	seq.)
	and
	failure
	"to
	participate
	in
	good
	faith
	in 	the
impasse
	procedures"
	was 	made
	an
	independent
	unfair
	practice
under
	the
	Act
	(subsections
	3543.S(d) 	and
	3543.6(e)).
	Under
Article 	9,
	initial
	impasse
	is
	determined
	by
	the
	Board
	after
	a
request
	by
	either 	party.
	The
	declaration 	of
	impasse
	serves 	to
prohibit 	unilateral 	actions 	while 	the
	parties
	go
	through
mandatory 	procedures 	designed 	to
	facilitate
	agreement.
	The
California
	Supreme
	Court 	has
	indicated 	that
	the 	impasse
procedure
	was
	enacted 	for 	the 	purpose 	of 	heading
	off 	strikes 	at
least 	until 	the 	completion 	of 	the 	procedure. 	San 	Diego
35

36
Teachers
	Association 	v. 	Superior
	Court
	(1979) 	24
	Cal.3d
	1,
	8
[154
	Cal.Rptr.
	893].
The
	impasse
	procedure
	of
	EERA
	contemplates
	a
	continuation
of
	the 	bargaining 	process
	with 	the
	aid 	of
	neutral 	third
parties.
	Moreno
	Valley 	Unified
	School
	District
	(4/30/82)
	PERB
Decision
	No.	
206.	
Mediation
	is
	an
	instrument
	designed
	to
advance
	the
	parties' 	efforts
	to
	reach 	agreement;
	factfinding 	is
a
	second
	such
	tool
	required
	by
	the
	law
	when
	mediation
	fails
	to
bring
	about 	agreement.
	The
	statute
	allows 	for
	up
	to 	ten
	days
to 	pass 	before 	the
	factfinding 	report
	is
	made
	publicl6	
and
also
	allows 	mediation
	efforts
	to 	continue
	after
	the
	findings
	of
fact
	and 	recommended
	terms
	of 	settlement.17	
These
	provisions
allow 	the
	parties
	an
	opportunity 	to
	reach
	an 	accommodation
based
	on
	the
	report
	after
	it
	is
	issued.
	Thus,
	while
	EERA
requires 	that
	the
	recommended
	terms
	of
	settlement
	"shall
	be
advisory 	only",
	and
	neither 	side
	is
	obligated 	to 	accept
	them,
the
	factfinder's
	recommendations
	are
	a
	crucial
	element
	in 	the
legislative
	process
	structured
	to 	bring 	about
	peacefully
negotiated
	agreements.
16subsection 	3548.3(a)
	is 	set 	forth
	at
	footnote 	4.
17
section
	3548.4 	reads 	as 	follows:
Nothing 	in
	this 	article 	shall
	be
	construed
to 	prohibit 	the 	mediator 	appointed 	pursuant
to 	Section
	3548 	from
	continuing 	mediation
efforts
	on 	the 	basis 	of 	the 	findings 	of 	fact
and 	recommended 	terms 	of 	settlement
	made
pursuant 	to 	Section 	3548.3.
36

37
Indeed,
	a
	clear
	purpose
	of 	the
	factfinding 	report
	is
	to
change
	the 	circumstances
	of 	bargaining
	by
	providing
	an
	impetus
for
	settlement
	of 	the
	parties'
	dispute.
	We,
	therefore,
conclude
	that
	the
	factfinder's
	recommendations
	must
	be
	given
good
	faith
	consideration
	by
	the
	parties
	before
	they
	determine
that
	impasse
	persists.18
18The
	testimony
	of 	the
	District's
	legal 	representative,
Keith 	Breon,
	indicates 	that
	he
	reached
	a
	similar 	conclusion
	and
so 	advised 	the
	District
.
Therefore,
	the
	first
	obligation
	of 	the
	parties, 	after
	the
recommendations
	of 	the
	factfinder
	are
	made,
	is
	to
	examine
	the
recommendations
	to
	see
	if
	they
	can
	find 	in
	them 	a
	basis
	for
settlement,
	or 	for
	such 	accommodations,
	concessions, 	or
compromises
	that
	might
	lead 	to
	settlement.
As 	a
	result
	of
	this
	process,
	both
	parties
	may
	decide
	in
good
	faith 	that
	the
	report
	does
	not 	provide
	a
	basis
	for
settlement
	or
	movement
	that
	could
	lead 	to 	settlement.
	The
statutory
	procedures
	have
	then
	failed 	to
	break 	the 	deadlock;
• 	. 	. 	I
	certainly 	told
	them
	[the
	District]that
	they
	have 	an
	obligation 	to
	send
	me
	back
to 	the
	table,
	or
	someone
	representing
	them,
to 	discuss 	that 	factfinding 	report.
	Therewould 	be 	no
	logic 	to 	the
	legislation
	if
	the
parties 	didn't
	get 	together
	and
	seriously
discuss,
	exchange 	whatever 	information 	they
could 	to 	determine 	whether 	or 	not
	an
agreement 	could
	be
	reached 	based 	on
	that
factfinding 	report
	..••
Reporter's 	Transcript 	(R.T.)~Vol. 	XIV,
pp. 	45-46
37

the
	parties
	remain
	at
	impasse.
	At
	this
	point,
	after
	the
statutory
	impasse
	procedures
	have 	been
	completed,
	impasse
	under
EERA
	is
	analogous
	to
	impasse 	under
	the
	NLRA.
	The
	employer
	may
decline 	further
	requests 	to
	bargain
	and
	may
	implement
	policies
reasonably
	comprehended
	within 	previous
	offers
	made
	and
negotiated
	between
	the
	parties.
If,
	on
	the
	other
	hand, 	both
	parties
	find
	a
	basis
	for
settlement
	or
	movements
	towards
	settlement
	in 	the
	factfinder's
recommendations,
	impasse
	is
	broken,
	and
	the
	parties
	must
	return
to
	the 	bargaining
	table
	until
	they 	reach
	agreement 	or
	again
reach
	impasse.
	As
	the
	Fifth
	Appellate
	District
	Court
	stated
	in
PERB
	v. 	Modesto,
	supra,
	136
	Cal.App.3d
	881, 	899:
Under
	District's
	rationale,
	as
	soon
	as
mediation
	and
	factfinding 	are
	completed, 	the
duty
	to 	negotiate
	in
	good
	faith
	evaporates.
We
	find
	no
	authority
	supporting
	this
contention
	nor
	do
	we
	find
	any
	authority
which 	would 	compel 	us
	to
	implement
	section
3549
	giving
	District
	the
	right
	to 	refuse 	to
bargain
	after 	post-factfinding
	concessions
made 	by
	Association
•
• 	• 	• 	(S]
ince
	collective
	bargaining
	is 	at
the
	heart 	of 	the
	EERA
	scheme,
	it
	is
necessary
	that
	PERB
	embrace
	the 	concept 	of
the 	duty 	to 	bargain
	which
	revives
	when
impasse
	is
	broken.
	(Emphasis
	added.)
However, 	once
	the
	statute's
	impasse
	procedures
	have 	been
concluded,
	PERB
	has
	no
	authority 	to
	recertify
	impasse
	or
reinvoke
	impasse
	procedures,
	nor
	is
	any
	purpose
	likely 	to
	be
served
	by
	the 	reimposition 	of 	procedures
	which 	have
	already
failed.
38	38

39
In 	the 	instant 	case, 	one 	party 	believed 	that 	the
factfinder's 	report 	provided 	the 	basis 	for 	agreement 	or
concessions 	leading 	to 	agreement 	and 	the 	other 	did 	not. 	Such 	a
situation 	requires 	that, 	where 	concessions 	are 	made 	by 	one
party, 	they 	must 	be 	given 	consideration 	by 	the 	other. 	New
proposals 	must 	be 	examined 	in 	good 	faith 	to 	determine 	their
acceptability. 	Even 	if 	not 	fully 	acceptable, 	a 	good 	faith
effort 	must 	be 	made 	to 	determine 	if 	the 	new 	proposals 	are
significant 	enough 	to 	"relieve 	the 	impasse 	and 	open 	a 	ray 	of
hope 	with 	a 	real 	potentiality 	for 	agreement 	if 	explored 	in 	good
faith 	bargaining 	sessions." 	NLRB 	v. 	Webb 	Furniture, 	supra.
Having 	already 	gone 	through 	an 	extended 	period 	of 	negotiations
and 	impasse 	proceedings, 	either 	party 	is 	free 	to 	conclude 	that
it 	has 	made 	all 	the 	concessions 	it 	can 	and 	further 	negotiations
are 	futile. 	Where 	this 	determination 	is 	reached 	in 	good 	faith,
NLRA-type 	impasse 	exists. 	The 	parties 	may 	decline 	further
requests 	to 	bargain 	and 	may 	implement 	policies 	reasonably
comprehended 	within 	previous 	offers 	made 	and 	negotiated. 	As
already 	noted, 	once 	exhausted, 	the 	impasse 	procedures 	may 	not
be 	reimposed.
Here, 	MTA 	was 	prepared 	to 	continue 	negotiations 	and 	willing
to 	make 	concessions 	and 	compromise 	toward 	that 	end. 	The
factfinder's 	report 	was 	published 	on 	January 	30 	and, 	at 	the
Association's 	request, 	a 	meeting 	was 	held 	on 	February 	4. 	The
record 	indicates 	that 	MTA 	came 	to 	the 	meeting 	ready 	to 	make
39

40
significant 	concessions. 	These 	included 	acceptance 	of 	the
one-year 	duration 	proposal 	that 	the 	District 	had 	considered
vital 	and 	acceptance 	of 	the 	District's 	pre-factfinding 	position
on 	class 	size 	and 	transfers, 	though 	both 	of 	these 	were 	less
favorable 	than 	the 	status 	quo. 	MTA 	was 	willing 	to 	accept 	the
entire 	factfinder's 	report 	plus 	amnesty 	as 	a 	final 	settlement
and 	to 	perhaps 	make 	even 	further 	accommodations: 	they 	did 	in
fact 	make 	more 	accommodations 	in 	the 	meetings 	of 	March 	2 	and
March 	4.
The 	District 	maintained 	that 	it 	did 	not 	have 	to 	examine 	the
recommendations 	of 	the 	factfinder 	or 	the 	Association's
concessions 	to 	see 	if 	these 	provided 	a 	basis 	for 	settlement 	or
opened 	a 	ray 	of 	hope. 	It 	insisted 	that 	impasse 	was 	automatic
when 	the 	factfinding 	report 	issued, 	that 	the 	obligation 	of 	good
faith 	negotiations 	had 	ended. 	The 	District 	refused 	to
characterize 	the 	February 	4 	meeting 	as 	negotiations, 	defining
it 	as 	a 	"meet 	and 	discuss 	session." 	Before 	meeting, 	it 	refused
to 	give 	Association 	negotiators 	released 	time, 	testifying 	that
the 	granting 	of 	released 	time 	would 	be 	evidence 	the 	parties
were 	back 	in 	negotiations 	instead 	of 	at 	impasse. 	It 	told 	the
Association 	that 	there 	would 	be 	no 	negotiating 	and 	no 	District
proposals, 	that 	the 	Association 	had 	the 	option 	of 	accepting 	the
District's 	position 	or 	having 	it 	imposed 	as 	a 	post-impasse
unilateral 	change. 	In 	short, 	the 	District 	made 	no 	effort 	to
40

R.T. Vol. XIV, 48:19-20.
41
examine
	all
	the 	circumstances
	to
	determine
	whether
	or 	not
	there
was
	hope
	of
	reaching
	agreement.
Notwithstanding
	its
	position 	that
	the 	bargaining
	obligation
had
	already
	ended,
	the
	District
	maintained
	at
	hearing
	that
	it
nonetheless
	did
	bargain
	with 	the
	Association.
	In
	direct
testimony, 	the
	District's
	chief
	spokesperson,
	Mr.
	Breon,
stated,
	"We
	postured 	the
	position
	of 	not 	formally
	negotiating
in
	order 	to 	protect
	the
	legal 	right"
	to
	implement
	unilateral
changes.19	
Elsewhere
	in 	the
	record,
	he
	indicated
	that
	he 	was
negotiating
	but 	not
	calling
	it
	that
	and,
	still
	elsewhere,
	he
testified
	that,
	from 	a
	practical
	point
	of
	view,
	"We
	negotiated
every
	day 	I 	was
	at
	the
	table.
11
20 	The
	District's
	attempt,
	at
hearing, 	to 	characterize
	its
	post-factfinding
	conduct 	as
negotiating
	does 	not
	alter
	the
	fact 	that
	its 	flat
	insistence 	at
the
	table 	that
	it
	would
	not 	bargain
	was
	clearly
	incompatible
with
	good
	faith.
19R.T. 	Vol. 	XIV,	
48:19-20.
20R.T. 	Vol. 	XIV,	
53:3-5.
Not
	only 	did 	the
	District
	allege 	that
	it
	bargained
	after
factfinding,
	it
	further 	stated 	that
	it
	saw 	a
	possibility
	of
progress 	in 	those
	talks.
	The
	record
	indicates 	that
	the
District's
	representative
	felt
	agreement
	was
	possible
	if
	the
Association
	would 	show movement 	on
	the
	key
	issues 	of
	agency
shop 	and
	arbitration
	of 	grievances
	and
	acceptance 	of
	certain
41

42
basic 	points 	put 	forth 	by 	the 	District.21 	Finally, 	the
District 	expressed 	its 	intent, 	based 	in 	part 	upon 	the 	neutral
recommendations, 	to 	increase 	driving 	instructors' 	salaries.
21R.T. 	Vol. 	XVII, 	33:11-17.
In 	all, 	it 	is 	clear 	that 	circumstances 	had 	changed
significantly 	and 	impasse 	was 	broken. 	The 	Association 	offered
to 	make 	substantial 	concessions 	and 	indicated 	a 	willingness 	to
negotiate 	and 	try 	to 	reach 	agreement. 	The 	District 	was 	ready
to 	accept 	at 	least 	one 	recommendation 	of 	the 	factfinder 	that
favored 	the 	Association 	and, 	according 	to 	Mr. 	Breon, 	more
District 	concessions 	and, 	indeed, 	agreement 	was 	possible.
Despite 	all 	this, 	the 	District 	refused 	to 	consider 	whether 	or
not 	the 	factfinder's 	report 	provided 	a 	basis 	for 	ending 	impasse
and 	refused 	to 	bargain 	over 	the 	Association's 	proposals.
Rather, 	the 	District 	declared 	that 	the 	obligation 	to 	bargain
had 	expired 	and 	that 	unilateral 	changes 	were 	the 	only 	course 	it
would 	follow. 	Thus, 	the 	District 	ended 	bargaining 	prematurely,
without 	negotiating 	in 	good 	faith, 	though 	it 	reasonably
appeared 	that 	such 	negotiations 	were 	warranted.
Further, 	the 	District 	stated 	its 	intention 	to 	implement
driving 	instructors' 	salaries 	better 	than 	its 	previous
negotiating 	position, 	but 	this 	was 	put 	forth 	unilaterally 	and
accompanied 	by 	an 	insistence 	that 	it 	was 	not 	negotiating. 	A
party 	has 	the
42

43
right
	to 	maintain,
	while
	in
	a
	negotiating 	posture,
	that
	its
best
	offer
	has
	been 	made, 	and
	that
	it
	will
	make 	no 	more
concessions.
	It
	is
	quite
	another 	matter
	to
	insist,
	as
	the
District
	did
	here,
	that
	the
	bilateral
	process
	has 	ended 	and
	to
offer
	only 	the
	option 	of
	acquiescence
	to
	a
	unilateral
	fait
accompli. 	This
	had
	the
	effect
	of 	derogating 	the
	Association's
stature
	as
	an
	exclusive
	representative
	in 	the
	eyes
	of
	its
members.
The
	District
	defends
	its
	recalcitrance
	and
	its
	admitted
posturing
	after
	the
	issuance
	of 	the
	factfinder's
	report
	by
pointing 	out
	that 	neither
	the
	statute
	nor
	decisions 	of 	the
Board
	had
	yet
	clarified
	the 	path 	they
	would
	have
	to 	follow.
District
	representatives
	maintain
	that
	they 	feared
	reimposition
of
	statutory
	impasse
	procedures.
	They 	add
	that,
	in
	order 	to
avoid
	such
	inordinate 	delay,
	it
	was
	necessary 	to
	insist 	that
impasse
	was
	present,
	even
	while 	they
	were
	actually 	trying 	to
reach 	agreement.
	The
	fact 	that
	no
	precedential
	case 	of
	this
nature
	had
	yet
	been
	decided
	by
	PERB
	is
	no
	defense.
	A
party
takes
	unilateral 	action
	at
	the
	risk
	of
	having
	it
	found
unlawful.
	While
	the 	uncertain
	state
	of 	the
	law 	may
	have
contributed 	to 	the
	District's
	decision 	not 	to 	bargain
	after
	the
factfinder's 	report
	was
	issued,
	its
	decision 	also 	indicates
that
	the
	District
	was 	more 	concerned 	with
	its 	ability
	to
implement
	unilateral
	changes 	than
	it
	was 	with
	its 	obligation 	to
43

44
attempt 	to 	reach 	agreement. 	In 	its 	eagerness 	to 	protect 	its
own 	rights, 	it 	violated 	the 	Association's.
If, 	as 	the 	District 	argues, 	the 	combined 	requirements 	of
the 	statutory 	impasse 	procedures 	and 	NLRB 	precedent 	place 	a
greater 	burden 	on 	the 	parties, 	it 	is 	so 	because 	the 	Legislature
has 	put 	extra 	emphasis 	on 	reaching 	agreement 	in 	educational
labor 	disputes, 	indicating 	the 	importance 	it 	places 	on 	the
peaceful 	resolution 	of 	these 	matters. 	Nor 	are 	these
requirements 	likely 	to 	lead 	to 	stalling 	tactics, 	since 	delay 	is
at 	least 	as 	much 	the 	enemy 	of 	the 	employees, 	whose 	desire 	to
receive 	an 	improvement 	in 	wages 	and 	working 	conditions 	it
forestalls, 	as 	it 	is 	management's 	foe.
The 	District's 	failure 	to 	consider 	the 	factfinder's 	report
or 	the 	Association's 	post-factfinding 	concessions 	constitutes 	a
refusal 	to 	bargain 	in 	good 	faith 	in 	violation 	of 	subsection
3543.S(c} 	and 	concurrently 	violates 	subsections 	3543.S(a)
and 	(b). 	In 	addition, 	the 	District's 	failure 	to 	consider 	the
factfinder's 	report 	also 	constitutes 	a 	refusal 	to 	participate
in 	good 	faith 	in 	the 	impasse 	procedures 	in 	violation 	of
subsection 	3543.S(d).
Refusal 	to 	Grant 	Released 	Time 	(Case 	No. 	S-CE-319)
Because 	the 	District 	erroneously 	maintained 	that
negotiations 	had 	effectively 	ended 	on 	publication 	of 	the
factfinder's 	report, 	it 	thereafter 	refused 	to 	grant 	released
time 	to 	Association 	negotiators.
44

45
Subsection 	3543.l(c)
	of 	the
	Act
	provides 	for
	reasonable
released
	time
	for
	representatives
	of 	the
	exclusive
representative
	to
	participate
	in 	the 	bargaining
	process.22
An
	inflexible 	refusal
	to 	grant 	released
	time
	is
	a
	refusal
	to
bargain
	and 	a
	denial
	of
	rights
	guaranteed 	to 	the
	employee
organization.
	Magnolia 	School
	District
	(6/27/77)
	EERB
	Decision
No.
	19. 	Therefore,
	we
	find
	that
	the
	District's
	attempt
	to
remove
	the
	indicia
	of 	bargaining
	by
	refusing 	released
	time
while
	under 	an
	obligation
	to 	bargain
	constitutes
	both
	a
	refusal
to 	bargain, 	in
	violation
	of 	subsection
	3543.S{c),
	and 	a
	denial
of
	employee
	organization
	rights,
	in
	violation
	of 	subsection
3543.S(b).
22subsection 	3543.l(c) 	provides:
Unilateral
	Implementation
	of
	Policies	
(Case 	No. 	S-CE-318)
After 	publication
	of 	the
	factfinder's 	report,
	the
	District
refused 	to 	negotiate
	and
	instead
	implemented
	certain 	unilateral
changes 	in 	conditions
	of
	employment,
	including
	changes
	in 	the
grievance 	procedure,
	class 	size 	policy
	and
	driving
	instructors'
salaries.
	We
	have 	concluded
	that
	impasse 	did 	not
	exist 	at 	this
time,
	and
	that
	the
	District
	was
	still
	under 	an
	obligation 	to
negotiate.
	An
	employer
	is
	precluded
	from 	making
	unilateral
A
reasonable
	number
	of 	representatives 	of
	an
exclusive 	representative 	shall
	have 	the
right 	to 	receive 	reasonable 	periods 	of
released 	time 	without 	loss 	of 	compensationwhen 	meeting 	and
	negotiating
	and 	for 	the
processing 	of 	grievances.
45

changes
	on
	items
	within
	the
	scope
	of
	representation
	while 	the
bargaining
	obligation
	exists.
	NLRB
	v. 	Katz,
	supra;
San
	Francisco
	Community
	College
	District,
	supra;
	and
	Davis
Unified
	School
	District 	et
	al.,
	supra.
	Even
	if
	the
	District
and
	the 	Association
	had
	been
	at
	impasse, 	the
	action
	taken
	by
the
	District
	on
	February
	25,
	1980
	exceeded
	its
	authority
	under
the
	Act
	and
	violated
	its
	bargaining
	obligation.
46
NLRB
	precedent
	has
	wisely
	limited
	post-impasse
	unilateral
changes
	to
	the 	confines 	of 	pre-impasse
	offers 	rejected
	by
	the
union.
	See
	Morris,
	The
	Developing
	Labor
	Law,
	p.
	330;
	NLRB
	v.
Crompton-Highland
	Mills
	(1948) 	337
	U.S. 	217,
	69
	S.Ct.
	960;
	and
Hi-Way
	Billboards,
	Inc.,
	supra.
	The
	changes 	implemented 	need
not
	be
	exactly
	those
	offered
	during
	negotiations,
	but
	must
	be
reasonably
	"comprehended
	within 	the
	impasse
	proposals." 	Taft
Broadcasting 	Co., 	supra,
	64
	LRRM
	1386, 	1388.
This
	freedom, 	which
	the
	employer 	has
	after,
	but 	not
	before,
impasse, 	springs
	from
	the
	fact 	that,
	having 	bargained 	in
	good
faith,
	it
	has
	satisfied
	its
	statutory
	duty. 	Bi-Rite
	Foods,
Inc.
	(1964) 	147
	NLRB
	59,
	65 	[56
	LRRM
	1150].
	However,
	the
freedom
	to
	unilaterally
	implement
	policies 	pertains
	only 	to
those 	issues
	which
	the
	District
	has
	actually
	had 	on
	the
	table
and
	has 	previously 	bargained 	in
	good
	faith
•
• 	. 	•[I]t is perhaps more precise to say
ecise 	to 	say
•..
	no 	impasse 	can 	be
	said 	to
	have 	been
reached 	when
	the 	reference 	is 	to 	changes
never 	introduced 	into 	the 	collective
bargaining 	arena. 	Bi-Rite 	Foods,
	Inc.,supra,
	147
	NLRB
	59, 	65.
46

Thus,
	matters
	reasonably
	comprehended
	within 	pre-impasse
negotiations
	include
	neither
	proposals
	better
	than 	the
	last
best
	offer
	nor
	proposals
	less
	than 	the
	status
	quo 	which
	were
not
	previously
	discussed
	at
	the
	table.
	Without
	offering
proposals 	or 	bargaining
	at
	the
	table,
	an 	employer
	provides
	no
notice 	that
	it
	is
	contemplating
	changes
	or
	positions
	less
	than
the
	status
	quo. 	Implementation
	of
	such
	unilateral
	changes,
therefore, 	constitutes
	a
	refusal
	to
	negotiate
	and
	circumvents
the
	bargaining 	process 	"as
	much
	as 	does
	a
	flat
	refusal" 	to
negotiate.
	NLRB
	v.
	Katz,
	supra,
	50
	LRRM
	2177, 	2180.
On
	February
	25, 	1980,
	the
	District 	unilaterally
	implemented
a
	variety
	of
	policies,
	one
	of
	which 	was
	taken
	from
	the
factfinder's
	recommendations
	and
	others
	which 	were
	less
	than
the
	status
	quo 	and 	had
	never
	previously
	been
	proposed
	to 	the
Association.
The
	District
	increased 	driving
	instructors' 	salaries
	by
$1,000 	without 	ever
	offering 	this
	increase
	at
	the
	bargaining
table.
	It
	implemented 	a
	grievance 	procedure
	which 	had
	never
been
	discussed
	at
	the
	table
	(in
	fact,
	it
	was
	less
	than
	the
District's
	bargaining 	position)
	and 	which
	substantially
	reduced
Association
	and 	member
	rights
	when 	compared
	to 	the
	status
quo.
23	
Finally,
	the
	District
	implemented 	a
	class 	size 	policy
23As
	the 	Court 	of 	Appeals 	noted 	in
	PERB
	v. 	Modesto,
supra,
	137 	Cal.App.3d 	881, 	901:
Before 	us, 	District
	concedes 	that 	the
"grievance 	procedure 	adopted 	by 	the
	district
supra, 137 Cal . App. 3d 881, 901:
47

48
which, 	in 	part, 	had 	never 	been 	proposed 	and 	which 	was 	less 	than
the 	status 	quo. 	The 	District 	made 	these 	changes 	despite 	the
fact 	that 	they 	could 	not 	be 	comprehended 	within 	its 	last 	best
offer.
The 	implementation 	of 	changes 	not 	offered 	at 	the 	table
"shows 	that 	the 	respondent 	was 	not 	using 	good 	faith 	during
negotiations 	and 	is 	manifestly 	inconsistent 	with 	the 	principles
of 	collective 	bargaining." 	Crompton-Highland 	Mills, 	supra.
Such 	activity 	constitutes 	a 	refusal 	to 	bargain 	and 	has 	the
predictable 	effect 	of 	undermining 	both 	the 	exclusive
representative 	and 	the 	collective 	bargaining 	relationship. 	See
Atlas 	Tack 	(1976) 	226 	NLRB 	222 	[93 	LRRM 	1236]. 	Therefore, 	we
find 	that 	the 	District's 	February 	25 	implementation 	of 	policies
not 	comprehended 	within 	its 	last 	best 	offer 	is 	a 	violation 	of
subsection 	3543.S{c) 	and 	concurrently 	violates 	subsections
3543.S(a) 	and 	(b).
Post-Impasse
"Staff Update", February 14 (Case	"Staff 	Update", 	February 14 No. S-CE-318)	(Case 	No. 	S-CE-318)
The 	District 	excepts 	to 	the 	hearing 	officer's 	decision 	that
on 	February 	25, 	1980, 	does 	contain
variations 	from 	the 	procedure 	embodied 	in
the 	previous 	contract, 	which 	had 	been 	the
district's 	'last-best 	offer'." 	District's
contention 	that 	the 	differences 	concern
"form" 	rather 	than 	"substance" 	is 	without
merit.
48

49
a
	"Staff
	Update
11
24	
distributed
	to
	all
	bargaining
	unit
	members
on
	February
	14 	was 	a
	misrepresentation
	and 	an
	attempt
	by
	the
District
	to
	bargain
	directly
	with 	the
	employees
	and
	bypass
	the
exclusive
	representative.
24The
	February 	14,
	1980.
	"Staff
	Update," 	placed 	in
teachers'
	mailboxes, 	provided 	in
	part:
In
	Muroc
	Unified
	School
	District
	(12/15/78)
	PERE
	Decision
No.
	80, 	the
	Board
	addressed 	the
	issue
	of
	communications
	or
memoranda
	directed
	at
	employees
	as 	follows:
The
	EERA
	imposes
	on
	the
	public
	school
employer
	an
	obligation
	to
	meet
	and
	negotiate
with
	the 	exclusive
	representative,
	and
embodies
	the
	principle
	enunciated 	in
	federaldecisions 	that
	the
	employer
	is
	subject 	to
	a
concomitant
	obligation 	to
	meet
	and
	negotiate
with
	no
	others,
	including 	the
	employees
themselves.	
(See 	Medo
	Photo 	Supply 	Corp. 	v.
NLRB
	(1944) 	321
	U.S.
	678 	[14
	LRRM
	581]).
Consequently ,	
•.•
	actions
	of
	a
	public
school
	employer 	which
	are
	in 	derogation 	of
the
	authority 	of
	the 	exclusive
representative 	are
	evidence
	of
	a
	refusal 	to
negotiate
	in
	good
	faith.
	(NLRB
	v.
	Goodyear
Aerospace 	Corp. 	(6th
	Cir.
	1974) 	497
	F.2d
	747
[86
	LRRM
	2763])
	•••.
The 	Board
	of 	Education 	has
	had 	an
opportunity 	to
	thoroughly 	review
	the
recommendations 	and
	dissents
	of 	the
factfinding 	panel.
	As 	a
	result,
	the
	Boardwould
	like 	to
	inform
	you
	directly
	as 	to
	its
offer 	to 	the
	Modesto 	Teachers 	Association.
If
	accepted
	by
	the
	Modesto 	Teachers
Association,
	we
	would 	have 	a
	contractcovering 	the 	1979-80 	school 	year.
The 	Board
	offers 	to 	include 	the 	following
improvements 	in 	a 	new
	contract 	over 	the
previous 	1977-79
	contract:
	•.••
49

50
Thus,
	we
	determine 	the
	propriety
	of
	an
	employer's
	direct
communication
	with
	employees
	by
	its
	effect
	on
	the
	authority
	of
the
	exclusive
	representative.
From
	February
	4,
	the
	District
	made
	it
	clear 	that
	it
	was 	no
longer
	negotiating
	with
	the 	Association.
	The
	District
	made 	no
written
	proposals
	but
	informed
	MTA
	that
	agreement
	could
	be
reached 	only
	if
	MTA
	acquiesced
	to
	the
	changes
	it
	intended
	to
implement.
	Yet,
	on
	February 	14,
	it
	published
	a
	newsletter
which
	represented
	that
	an
	"offer"
	had 	been 	made
	to
	the
Association.
	In
	fact, 	this
	"offer"
	amounted
	to
	no 	more
	than
	an
oral
	ultimatum.
	Thus,
	the
	District
	presented 	to 	the
	employees
an
	"offer"
	which
	it
	had
	not 	presented 	to
	the
	Association.
	The
publication
	of 	the
	"offer"
	in 	the
	"Staff
	Update"
	created
	the
illusion
	that
	the
	employees
	had
	greater 	negotiating
	power 	and
flexibility
	in 	dealing
	with 	the
	District's
	ultimatum 	than 	did
the 	Association.
The
	District
	refused 	to 	negotiate
	with
	MTA,
	yet
	it
maintained
	a
	posture 	of 	negotiating
	with 	the 	employees. 	It
attempted 	to 	negotiate
	with
	MTA
	through 	the
	employees
	rather
than 	with 	the 	Association 	as
	representative
	of 	the 	employees.
See
	NLRB
	v. 	General
	Electric
	Co. 	(2nd
	Cir.
	1969) 	418
	F.2d 	736,
759 	[72
	LRRM
	2530].
	The
	effect
	of
	this 	tactic
	could 	only
	be 	a
derogation 	of 	the 	exclusive 	representative.
Though
	there
	was
	only 	one 	communication 	of 	this 	nature,
	it
came
	at
	a
	critical 	juncture
	and 	misrepresented 	the 	positions 	of
50

the
	parties
	by
	alleging 	that
	an
	offer
	had 	been
	made
	to 	thethe parties by alleging that an offer had been made to the
Association
	and
	rejected
	by
	it.
	For
	these 	reasons,
	we
	find
that
	the
	February
	14
	letter
	was
	an
	attempt
	to 	derogate 	the
authority
	of
	the
	exclusive 	bargaining 	agent
	and
	evidence
	of
	bad
faith
	bargaining 	in
	violation
	of
	subsections 	3543.S(a),
(b)
	and 	(C)
•
51
"Staff
	Update",
	March 	3	
(Case
	No.
	S-CE-318)
After
	the
	employees
	voted
	to
	go 	on
	strike
	on
	February
	27,
	a
March
	3,
	1980
	"Staff
	Update"
	advised
	employees
	that
	those
	who
participated
	in 	the
	work
	stoppage 	faced
	possible 	dismissal.
Though
	clearly
	intended
	to 	discourage 	the
	teachers
	from
	going
on
	strike,
	the
	fact 	that
	the
	statement
	would 	have
	a
discouraging
	effect
	does
	not
	make
	it
	unlawful.
	The
	issue,
rather, 	is
	whether
	the 	statement 	misrepresents 	the
	law 	and
	thus
constitutes
	an
	illegal 	threat.
	Superior
	Tool
	and
	Die 	Co.
(1961) 	132
	NLRB
	1373 	[48
	LRRM
	1536].
This
	leaflet
	stated 	that 	striking
	employees 	faced
	possible
dismissal.
	This
	message
	was
	consistent
	with 	the 	employer's
interpretation
	of 	the 	law.
	The
	District
	maintained
	that
strikes
	are
	clearly 	illegal
	or
	that, 	at 	best,
	employees 	were
taking 	their
	chances
	on
	the 	ultimate 	legal 	determination 	of 	the
strike.
	The 	law
	in
	this 	area
	is
	not
	easily 	stated
	because
public 	sector 	strike 	doctrine 	is
	complicated
	and
	evolving.
Appellate 	courts
	have 	found 	some
	public
	employee
	strikes 	in
this 	state 	to
	be
	illegal,
	and 	some
	strikers
	have
	lost 	their
51

jobs.
	No
	determination
	had
	been
	made 	by
	PERB
	as
	to
	whether
	or
not 	the
	intended
	strike
	would
	or
	could
	violate
	EERA.
	We
	do
	not
find
	that
	the
	District's
	interpretation
	so
	misrepresented 	the
law
	as
	to
	constitute
	an
	illegal
	threat.
	It
	represented
	the
District's
	position,
	a
	position 	that
	could,
	at
	that
	time,
reasonably
	be
	held.
	We
	dismiss 	the
	violation
	of 	subsection
3543.S(a) 	charged
	by
	the 	Association
	and 	found
	by
	the
	hearing
officer.
The
	Strike
	(Case 	No.
	s-co-48)
Finally,
	the
	District
	takes 	exception 	to 	the 	hearing
officer's
	conclusion
	that
	"[A]
	strike,
	provoked
	by
	the
District's
	bad
	faith
	conduct,
	is
	not
	a
	violation
	of
	the
	EERA."
The
	District
	characterizes
	this
	finding
	as
	an
	improper
determination
	that 	public
	school
	employees 	under
	EERA
	have
	a
right
	to
	strike,
	and
	it
	excepts 	to
	such
	a
	finding
	on
	the
	basis
that
	"
	.••
	the
	case 	law, 	the
	EERA
	and
	the
	Constitution 	of
California
	all
	•••
	establish 	that
	public 	school
	employees
	do
not
	have
	the
	right 	to
	strike."
52
At
	the
	outset,
	we
	consider 	but
	must
	reject
	the
	District's
constitutionally-based
	arguments.
	Its
	contention 	that
Article
	IX
	of 	the 	Constitution 	gives 	the 	Legislature
	direct
control
	over 	the 	establishment
	and
	supervision 	of 	the 	schools
and, 	thus, 	bars 	school 	employee
	strikes, 	is 	unpersuasive.
	As
the
	District 	fails 	to 	cite
	a
	single 	instance 	of 	any
	California
court 	upholding
	this 	theory,
	we
	leave 	this 	constitutional
52

53
contention 	to
	a
	higher
	judicial
	body
	for
	determination.
Richmond
	Unified
	School
	District/Simi
	Valley 	Unified
	School
District
	(8/1/79)
	PERB
	Decision
	No.
	99.
The
	District's
	second
	constitutional
	argument
	is 	that
	the
power
	to
	legislate
	remains
	exclusively
	with 	the
	Legislature,
which 	has
	not
	and
	cannot
	delegate 	to
	PERB
	the
	authority 	to
"declare 	public
	employee
	strikes 	legal."
	PERB
	claims
	neither
the
	authority 	to
	legislate
	nor 	any
	delegated
	power
	to
	alter
	or
improve
	upon
	the
	work
	of
	the
	Legislature.
	We
	are
	mandated,
however,
	to
	interpret
	and
	enforce
	the
	provisions
	of
	EERA. 	As
discussed
	more
	fully 	herein,
	our
	finding
	that 	this 	strike 	is
protected
	under
	EERA
	is
	based
	on
	the 	language 	of 	the
	statute
and
	the
	legislative 	intent
	manifested
	therein.
The
	District
	next
	cites
	a 	number
	of
	appellate 	court 	cases
which,
	it
	is
	generally 	agreed,
	indicate 	that
	absent
	legislative
authorization,
	public
	employees 	have 	no
	right
	to
	strike.
25
Moreover,
	it
	argues
	that
	EERA
	does
	not
	authorize
	strikes
because:
25Los
	Angeles 	Unified 	School
	District
	v. 	United 	Teachers
(1972) 	24
	Cal.App.3d
	142 	[100
	Cal.Rptr.
	806]; 	Pasadena
	UnifiedSchool
	District
	v. 	Pasadena
	Federation 	of 	Teachers
	(1977) 	72
Cal.App.3d
	100 	[140
	Cal.Rptr.
	41]; 	City 	of
	San 	Diego
	v.American
	Federation 	of 	State,
	Count 	and 	Munici
	al
	Em
	lo
	ees
(1970) 	8
	Cal.App.
	0 	87
	Cal.Rptr.
	;
	StationaryEngineers, 	Local
	39
	v.
	San
	Juan 	Suburban 	Water
	District
	(1979)
90
	Cal.App.3d
	796 	[153
	Cal.Rptr.
	666] 	and
	City
	and 	County 	of
San
	Francisco 	v. 	Evankovich 	(1977) 	69
	Cal.App.3d 	41 	[137
Cal.Rptr. 	883]; 	Los 	Angeles 	Metropolitan 	Transit 	Authority 	v.
Brotherhood 	of 	Railroad 	Trainmen 	(1960) 	54
	Cal.2d
	684
[8
	Cal.Rptr. 	1].
The
	legislature,
	in 	enacting
	Gov. 	Code
Section
	3549
	excluding 	public 	school
53

54
employees
	from
	the
	protections
	of
	Labor
	Code
Section
	923,
	was
	presumably
	aware
	of
	prior
interpretations
	of
	identical
	language
	in
prior 	statutory
	enactments
	as
	prohibiting
strikes.
The
	District 	is
	correct
	when
	it
	points
	out
	that
	the
language
	of
	section
	354926	
is
	identical
	to
	that
	found
	in
prior 	legislative
	enactments,
	and
	that
	it
	was
	this
	very
language
	which
	resulted
	in 	the
	appellate 	court 	decisions
	that
held 	public
	employee
	strikes
	illegal.
	Nonetheless,
	we
	reject
the
	District's
	argument
	for 	the 	following
	reasons.
26section
	3549
	provides:
First,
	the
	Supreme
	Court 	has
	now
	firmly
	rejected
	the
contention
	that 	section
	3549 	makes
	strikes
	per 	se 	unlawful
under
	EERA.
	In
	San 	Diego
	Teachers
	Association, 	supra, 	the
Court, 	in 	precise
	and
	unmistakable 	language,
	states:
...
	section
	3549
	does
	not
	prohibit 	strikes
but 	simply 	excludes 	the
	applicability
	of
Labor
	Code
	section 	923's
	protection
	of
concerted
	activities.
	(Emphasis
	added.)
The
	enactment
	of
	this
	chapter
	shall
	not
	be
construed 	as
	making
	the 	provisions 	of
Section
	923
	of 	the
	Labor 	Code
	applicable 	to
public 	school
	employees
	and
	shall
	not
	be
construed 	as
	prohibiting
	a
	public 	schoolemployer 	from 	making
	the
	final
	decision
	with
regard 	to
	all
	matters 	specified 	in 	Section
3543.2.
Nothing
	in
	this 	section 	shall
	cause
	any
court 	or 	the 	board
	to
	hold
	invalid
	any
negotiated
	agreement 	between
	public 	schoolemployers 	and
	the 	exclusive 	representativeentered 	into 	in 	accordance 	with 	the
provisions 	of 	this 	chapter.
54

55
Thus,
	section
	3549 	means
	simply
	that
	EERA's
	statutory
	scheme,
not
	section
	923
	of 	the
	Labor 	Code,
	dictates
	the
	state's
	labor
policy
	as
	to 	public
	school
	employees.
Secondly,
	these
	appellate 	court
	cases
	were
	rendered
	under
statutory
	schemes 	which
	create
	different
	rights
	and
	are
	less
compehensive
	than
	EERA.
	Los
	Angeles
	Unified
	School
	District
	v.
United 	Teachers,
	supra,
	and
	Pasadena
	Unified
	School
	District
	v.
Pasadena
	Federation 	of
	Teachers, 	supra,
	arose
	under
	the
	Winton
Act ;
27	
City 	of
	San
	Diego
	v.
	American
	Federation 	of
	State,
County
	and
	Municipal
	Employees,
	supra, 	arose
	under
	the
George
	Brown
	Act.
28	
These
	statutes
	stop 	short 	of 	providing
the
	collective
	bargaining
	rights
	found
	in
	EERA;
	neither
	allows
for 	exclusive
	representation,
	good
	faith
	negotiations 	or
labor-management
	contracts. 	Stationary
	Engineers 	Local
	39
	v.
San
	Juan
	Suburban 	Water
	District,
	supra,
	and
	City
	and
	County
	of
San
	Francisco 	v.
	Evankovich,
	supra, 	arose
	under
	the
27 The 	Winton
	Act, 	enacted 	in 	1965,
	was
	codified
	atsection
	13080
	et
	seq. 	of 	the 	Education
	Code.
	Prior 	to 	thepassage 	of
	EERA,
	the
	Winton 	Act 	governed 	employer-employee
relations
	in
	California's
	public 	schools.
28The 	George 	Brown
	Act, 	enacted 	in 	1961,
	is 	codified
	at
section
	3525
	et
	seq. 	of 	the
	Government 	Code 	and
	governs
employer-employee
	relations
	for
	certain 	professional,managerial
	and
	confidential 	State
	employees.
	The 	Brown
	Act
governed 	employer-employee
	relations
	in
	local
	government
agencies
	until
	the 	Meyers-Milias-Brown 	Act 	passed 	in 	1969.
Prior 	to 	the 	passage 	of 	the 	State
	Employer-Employee
	RelationsAct 	(SEERA), 	Government 	Code
	section
	3512
	et 	seq.,
	and
	theHigher 	Education 	Employer-Employee 	Relations 	Act 	(HEERA),
Government 	Code
	section
	3560
	et 	seq., 	all 	State
	and
	higher
education 	labor 	relations
	were 	governed 	by 	the 	Brown 	Act.
55

56
Meyers-Milias-Brown
	Act.
29 a
This
	law
	does
	permit
	exclusive
representation
	and
	negotiated
	agreements
	but,
	like
	the
above-cited
	laws,
	it
	does
	not
	establish
	an
	administrative
agency 	charged 	with 	the
	responsibility
	of
	enforcing,
interpreting
	and
	administering 	the
	act.
	Under
	all
	of
	these
statutes,
	these 	functions 	are
	left
	in 	the
	hands
	of 	the
	courts.
29The 	Meyers-Milias-Brown 	Act
	is 	codified 	at 	section
	3500
et
	seq. 	of 	the
	Government 	Code, 	and
	governs
	local
	government
employer-employee
	relations.
These
	appellate 	decisions
	have
	held
	that,
	where
	the
Legislature
	has
	refused
	to
	"enact
	a
	comprehensive
	scheme 	and
	an
administrative
	apparatus 	for 	the
	regulation 	of
	labor
	relations
in 	the 	public
	sector,"
	legislative
	authorization
	to
	strike
cannot
	be
	inferred.
	City
	and 	County
	of
	San
	Francisco
	v.
Evankovich,
	supra,
	69
	Cal.App.3d
	41, 	52.
In
	contrast,
	EERA
	is
	a
	comprehensive
	statutory
	scheme. 	In
San 	Diego
	Teachers
	Association, 	supra,
	at
	p. 	12, 	the
	Supreme
Court
	noted
	"the
	comprehensiveness
	of
	the
	EERA
	scheme" 	and
	the
"marked
	similarities
	between
	EERA
	and 	NLRA." 	The
	Court
observed
	that
	both
	EERA
	and
	NLRA
	are 	administered
	by
	full-time
boards
	which 	have
	authority
	over
	questions 	of
	representation,
employ
	general 	counsels,
	and 	can
	investigate, 	adjudicate
	and
remedy
	unfair 	practices. 	Judicial
	review 	of
	both
	boards'
orders
	must 	hold 	the 	findings 	conclusive
	if
	supported
	by
substantial
	evidence.
T
56

57
Consequently, 	in
	San 	Diego
	Teachers
	Association,
	supra,
	the
Court
	concluded
	that
	the
	preemption
	doctrine,
	which
	has 	long
been
	applied 	to
	the
	NLRB,
	applies
	similarly
	to
	PERB.30 	The
Court
	stated 	that
	PERE
	has
	exclusive
	initial
	jurisdiction
	to
determine
	whether
	a
	strike 	is
	an
	unfair
	practice
	and
	what,
	if
any,
	remedies 	should
	be
	pursued.
	The
	Court
	delineated 	the
rationale
	for 	preemption, 	quoting
	from 	Motor 	Coach
	Employees
	v.
Lockridge
	(1971) 	403 	u.s. 	274, 	286-288
	[91
	s.ct.
	1909].
30see San Diego Building Trades Council et al. v. Garmon
v.
	Garmon
(1959) 	359
	U.S.
	2 6 	[79
	s.ct.
	773]; 	Garner 	v. 	Teamsters 	Union
(1953) 	346
	u.s.
	485 	[74
	s.ct.
	161].
The
	rationale
	for 	pre-emption, 	then,
	rests
in
	large
	measure
	upon
	our
	determination
	that
when
	it
	set
	down 	a
	federal
	labor 	policy
Congress
	plainly
	meant
	to
	do 	more
	than
simply
	to
	alter
	the
	then-prevailing
substantive
	law.
	It
	sought 	as
	well 	to
restructure
	fundamentally 	the 	processes 	for
effectuating 	that 	policy, 	deliberately
placing
	the
	responsibility
	for 	applying
	and
developing
	this
	comprehensive
	legal
	system
in 	the
	hands
	of
	an
	expert 	administrative
body
	rather
	than 	the
	federalized
	judicial
system.
PERB,
	then,
	has
	been
	given 	the
	responsibility
	of 	using
	its
labor 	expertise 	to
	interpret
	EERA.
	While
	perhaps 	"an
ouncil
	et 	al
The
	Court
	also 	notes 	section
	3541.5 	which
	provides, 	in
pertinent 	part,
	as 	follows:
The
	initial
	determination 	as 	to
	whether 	the
charges 	of 	unfair 	practices 	are
	justified,
and,
	if
	so,
	what 	remedy
	is 	necessary 	to
effectuate 	the 	purposes 	of 	this 	chapter,
shall
	be 	a
	matter 	within 	the 	exclusive
jurisdiction 	of 	the 	board
•...
57

58
unremarkable
	application
	of 	standard
	collective
	bargaining
concepts,
11
31	
EERA
	is
	the
	first
	such
	statute
	applying
	to
California
	school
	employees
	and,
	thus,
	for 	these
	employees,
	it
represents
	an
	effort
	to
	"restructure
	fundamentally"
	prevailing
law.
	Motor 	Coach
	Employees
	v.
	Lockridge,
	supra. 	Decisions
reached
	under
	substantially 	different 	statutes
	representing,
	as
they 	do, 	fundamentally
	different
	approaches
	to
	labor-management
relations,
	can
	have
	only
	limited 	significance
	in 	the
interpretation
	of
	EERA.
31in 	San 	Lorenzo 	Education 	Association,
	CTA/NEA
	v. 	Wilson(1982) 	32
	Cal.3d 	841, 	the 	Court
	stated 	that:
In
	addition,
	in
	San 	Diego
	Teachers
	Association, 	supra,
	the
Supreme
	Court 	not 	only
	asserted
	PERB's
	right
	to
	withhold
	a
strike
	injunction,
	it
	also
	found
	that
	harsh 	automatic
	sanctions
have
	not 	prevented
	strikes
	in 	the
	past
	and
	may 	be
counterproductive,
	as
	may 	be
	rigid 	rules
	as
	to
	the
	legality
	of
public
	employee
	strikes.
	It
	concluded
	that,
	in 	order 	for
	PERB
to
	perform
	its
	mission
	of 	fostering 	constructive
	employment
relations
	(which
	surely 	includes 	the 	long-range 	minimization 	of
work
	stoppages),
	PERB
	may
	refrain
	from
	intervention 	in
	a
•.•
	[I]n 	enacting 	the
	EERA,
	the
Legislature 	did 	not 	purport 	to 	invent
	anew
the
	law
	of 	labor 	relations.
	Much
	of 	the 	act
is
	no 	more
	than 	an 	unremarkable
	applicationof 	standard 	collective 	bargaining 	concepts
well 	established 	in 	other 	private
	and
	public
sector 	contexts 	to 	public 	educationemployment.
58

59
particular
	strike.
	And,
	as
	it
	had
	twice
	before,
	the 	Court
refused 	to
	uphold
	the
	appellate
	court 	findings
	that
	public
employee
	strikes
	were
	per 	se
	illega1.32
n	
re 	Berry 	(1968) 	68
	Cal.2d 	137, 	151 	[65
	Cal.Rptr.
273]; 	City
	and 	County 	of 	San 	Francisco 	v. 	Cooper 	(1975) 	13
Cal.3d 	898, 	912 	[120
	Cal.Rptr. 	707].
Similarly,
	in
	upholding
	PERB's
	handling
	of
	the
	injunction
request
	in
	this
	case,
	the
	appellate 	court 	in
	PERB
	v.
	Modesto,
supra,
	departed
	significantly
	from
	these
	earlier
	appellate
court 	decisions.
As
	already 	noted,
	there
	is
	general
	agreement
	that
	pre-EERA
appellate
	court 	decisions
	stand 	for 	the
	proposition
	that
strikes
	are
	illegal
	unless 	authorized	
by	
statute.
	Thus,
	a
finding 	of 	the
	legality
	of 	the
	work
	stoppage 	in 	the
	instant
case
	does
	not
	require 	reconsideration 	of
	the
	pre-EERA
	decisions
but,
	rather,
	requires
	only
	a
	determination
	of 	the
	applicability
of
	those 	cases 	to 	the
	new
	governing
	statute,
	EERA. 	When
considered 	in
	light
	of 	the
	decisions 	in
	San 	Diego
	Teachers
Association, 	supra,
	and
	PERB
	v.
	Modesto,
	supra,
	and
	the
structure
	of
	EERA,
	it
	is
	clear 	that
	the
	pre-EERA
	appellate
court 	decisions 	holding
	public
	employee
	strikes
	to
	be
	illegal
do
	not
	compel
	the
	same
	conclusion
	under
	EERA. 	Nor does the	Nor 	does
	the
language
	of
	EERA
	compel 	such
	a
	conclusion.
There
	is
	no
	language 	in
	EERA
	which
	explicitly
	proclaims
strikes
	to
	be
	illegal.
	When
	the 	Legislature
	sought 	to 	insure
59
32	3 2I

60
that
	firefighters
	would
	not
	have
	the
	right
	to
	strike,
	it
enacted
	Labor
	Code
	section
	1962,
	which
	expressly 	provides
	that
employees
	"shall
	not
	have
	the
	right
	to
	strike
	or
	to
	recognize
	a
picket 	line
	of
	a
	labor 	organization
	while
	in
	the 	course
	of
	the
performance 	of
	their
	official
	duties."
	The
	Legislature
	did 	not
include
	this
	or
	similarly
	direct
	language
	in
	EERA.
The
	absence
	of
	an
	express
	strike
	ban
	is
	significant
	given
the
	fact
	that,
	shortly
	before 	passing
	EERA
	in
	1975,
	the
Legislature
	had
	considered 	but
	refused 	to 	enact
	several
	bills
which
	would 	have
	barred 	or
	restricted
	public 	sector
strikes.
33	
Further,
	we
	take
	administrative 	notice 	of
	two
extensive 	studies
	prepared
	by
	the
	Legislature
	on
	the
	rights
	of
public
	employees
	to 	bargain
	collectively
	and
	to
	strike,
	"To
Meet 	and
	Confer"
	by
	Senator
	Dills
	in
	1972,
	and 	"The
	Final
Report 	of 	the
	Assembly
	Advisory 	Council
	on
	Public
	Employee
Relations" 	in
	1973. 	These
	reports 	deal 	with
	most
	of 	the
concepts
	and
	include
	much
	of 	the
	actual
	language
	found
	in
	EERA.
33senate
	Bill
	1440
	(Dills)
	would 	have
	subjected 	school
employees
	to 	language 	similar 	to,
	but 	stronger 	than, 	the 	clear
strike
	bar 	language 	found 	in 	section
	1962
	of 	the 	Labor 	Code.
The 	Dills-Berman
	bill
	would 	have 	mandated 	the 	courts 	to 	enjoin
a
	strike
	where 	any
	citizen 	could 	successfully 	argue 	that 	the
strike 	violated
	community
	health 	or 	safety.
Thus,
	when
	considering
	EERA,
	the 	Legislature
	had
	available
and
	utilized
	extensively 	these
	proposed
	bills
	and
	reports,
	but
it
	rejected
	language 	in
	them
	that
	would 	have
	definitively
outlawed
	strikes.
	This
	would 	seem
	to
	belie
	the
	assertion 	that
60

61
the
	Legislature
	intended
	that
	EERA
	should
	serve
	as
	a
	legal
	bar
to
	all
	public
	school.employee
	strikes.
Even
	though
	EERA
	does
	not
	prohibit
	strikes,
	the
	Board
cannot
	hold
	that
	a 	work
	stoppage
	is
	protected 	unless
	there
	is
language 	in
	EERA
	which
	actually
	authorizes
	such
	a
	decision.
	We
find
	that
	there
	is.
Neither
	the
	NLRA
	or
	section
	923
	of 	the
	Labor
	Code
	contain
plain
	and
	explicit
	language
	permitting
	strikes,
	yet
	the
	right
of
	employees 	covered
	by
	these
	statutes
	to
	strike 	is
	protected.
As
	the
	Court
	points
	out 	in
	San 	Diego
	Teachers
	Association,
supra,
	at
	p. 	6,
	and
	as
	the
	U.S.
	Supreme
	Court
	has
	held
	pursuant
to 	the
	NLRA,
	a
	legislative
	"declaration 	that
	workers
	are
	to
	be
free
	from
	employer
	interference
	in 	'concerted
	activities
	.
or
	other
	mutual
	aid 	or
	protection'
	is
	generally
	understood
	to
confer
	a
	right
	to
	strike."
	See,
	e.g.,™
	v.
	Mackay
	Radio	
&
Telegraph 	co.
	(1938) 	304
	U.S.
	333 	[2
	LRRM
	610];
	NLRB
	v.
	Thayer
Co.
	(1st 	Cir.
	1954) 	213
	F.2d
	748 	[34
	LRRM
	2250],
	cert.
	denied
(1954) 	348
	U.S.
	883 	[35
	LRRM
	2100].
EERA
	contains
	no
	reference 	to 	concerted
	activities.
	It
does,
	however,
	in 	section
	3543,
	guarantee 	public 	school
employees 	the
	right, 	free
	from 	employer
	interference, 	"to
	form,
join,
	and
	participate
	in 	the
	activities
	of
	employee
organizations 	of 	their
	own
	choosing
•.•.	
34	u
34
4see 	footnote 	12
	supra.
61

62
The
	only
	difference
	we
	find
	between
	the
	right
	to
	engage
	in
concerted 	action
	for 	mutual
	aid
	and
	protection
	and
	the
	right
	to
form,
	join
	and
	participate
	in 	the
	activities
	of
	an
	employee
organization
	is
	that
	EERA
	uses
	plainer
	and 	more
	universally
understood
	language
	to
	clearly
	and
	directly
	authorize
	employee
participation
	in
	collective
	actions
	traditionally
	related
	to
the
	bargaining 	process.
	Membership
	drives,
	meetings,
bargaining,
	leafletting
	and
	informational 	picketing 	are
activities
	which
	are,
	without
	question, 	authorized
	by
	section
3543.
	Similarly,
	work
	stoppages
	must
	also 	qualify
	as
collective
	actions
	traditionally
	related
	to
	collective
bargaining.
	Thus,
	except 	as
	limited
	by
	other 	provisions 	of
EERA,
	section
	3543
	authorizes
	work
	stoppages.
However,
	while
	EERA
	does 	not
	prohibit 	strikes
	per
	se,
	it
does
	contain
	restrictions
	such 	as 	the
	impasse
	procedures 	not
found
	in 	the
	NLRA
	or
	section
	923
	of 	the
	Labor 	Code.
PERB
	has
	already 	considered
	work
	stoppages
	under
	EERA
	in
Fremont
	Unified
	School
	District
	(6/19/80)
	PERB
	Decision
No.
	136, 	Fresno Unified 	School
	District
	(4/30/82)
	PERB
	Decision
No.
	208,
	and
	Westminster 	School
	District
	(12/31/82)
	PERB
Decision
	No. 	277. 	These
	cases 	establish 	that,
	while 	not
	all
strikes
	are 	violative 	of
	EERA, 	a
	strike 	prior 	to 	the 	completion
of 	impasse
	"create[s]
	something
	similar 	to	
a	
rebuttable
presumption" 	of
	an 	unlawful 	refusal 	to 	negotiate 	and/or
participate 	in 	impasse. 	The 	presumption 	of 	illegality 	is
62

63
rebuttable,
	however,
	by
	proof
	that
	the
	strike
	was
	provoked
	by
employer
	conduct
	and
	that,
	further,
	the
	employee
	organization
in
	fact
	negotiated
	and
	participated
	in
	impasse
	in
	good
	faith.
Absent
	such
	evidence, 	the 	presumption
	stands,
	and 	a
	violation
is
	established.
Fremont, 	Fresno
	and
	Westminster,
	supra, 	are
	all
	cases 	in
which
	a
	strike
	occurred 	before
	the 	completion 	of 	impasse.
Where,
	as
	in
	Fremont,
	an
	employer 	has
	upset 	the 	bargaining
process
	by
	engaging
	in 	provocative 	conduct,
	then
	a
	strike
	in
response
	to,
	and
	in
	protest 	of, 	that
	conduct
	does
	not
conclusively
	demonstrate
	bad
	faith
	on
	the
	part
	of 	the
	union.
Rather,
	it
	is
	then
	necessary 	to 	consider
	the
	totality
	of
	the
union's
	conduct
	to
	determine 	the
	union's 	subjective
	good
	or
	bad
faith.
However,
	where, 	as
	in
	Fresno
	and
	Westminster,
	no
	employer
provocation
	is
	shown 	and 	a
	strike 	is
	motivated
	solely
	by
economic
	considerations 	to 	gain 	concessions 	in 	bargaining,
	then
the
	strike 	is
	a
	refusal 	to 	negotiate.
	An
	independent
investigation 	into 	overall
	good
	faith 	is
	unnecessary.
	If
undertaken 	during 	impasse, 	such 	a
	strike
	also 	violates
	the 	duty
to
	participate
	in
	good
	faith
	in 	the
	impasse
	procedures.
Here,
	we
	find 	that 	the 	Association
	has 	met
	the 	dual 	burden
established 	in 	these 	cases.
	The
	record
	shows
	that
	the
	strike
was 	provoked 	by 	a
	series 	of 	unfair 	practices
	by
	the
	District.
The
	District 	refused 	to 	bargain 	in
	good
	faith
	by 	engaging 	in
63

64
surface
	bargaining, 	conditioning
	agreement
	on
	abandonment
	of
representation
	rights,
	bypassing 	the
	exclusive
	representative
and
	attempting
	to 	negotiate
	directly
	with
	the
	employees,
	and 	by
refusing 	to 	grant 	released
	time
	and
	to 	bargain
	after
publication
	of 	the
	factfinder's
	report.
	The
	District
	refused
to
	participate
	in
	good
	faith
	in 	the
	impasse
	procedure
	by
refusing 	to 	consider
	the
	factfinder's
	report.
	The
	strike
finally
	resulted
	when
	the
	District
	implemented
	illegal
unilateral
	changes.
	The
	District's
	conduct
	was 	more
	than
sufficient
	to
	provoke
	a
	direct
	response
	by
	the
	Association.
That
	this 	strike
	occurred
	after
	impasse 	does
	not
	alter
	the
	fact
that
	it
	was
	provoked.35	
we,	
therefore,
	look
	to
	the
	second
prong
	of 	the
	test
	to
	determine
	if
	the 	Association
	had
	acted 	in
good
	faith
	in 	the 	bargaining 	process.
	We
	find
	that
	it
	did.
	It
made
	concessions
	from
	the 	beginning 	of 	bargaining;
	it
	agreed 	to
work
	without
	a
	contract
	while 	continuing 	to
	seek 	agreement;
	it
participated
	in
	good
	faith
	in 	the 	mediation
	and
	factfinding
procedures;
	and
	it
	made
	additional
	concessions
	after
publication
	of 	the
	factfinder's 	report.
35 Inasmuc 	as
	we
	find 	that 	this 	strike
	was 	provoked 	by
the
	District's 	unfair 	practices,
	it
	is 	not 	necessary 	and 	we
expressly 	decline 	to 	decide 	whether 	a
	purely 	economic
	strike
after
	impasse 	would 	contravene 	the 	requirements 	of 	the 	Act.
We
	have 	noted
	that
	some
	teachers
	engaged
	in 	unprotected
activity
	and
	that 	the
	District
	was
	justified
	in 	reprimanding
those 	teachers.
	However,
	there 	is
	no
	indication 	that 	the
64

65
unprotected
	activity
	was
	taken
	to
	short-circuit
	the
	bargaining
process,
	nor
	did
	it
	have
	that
	effect.
	we,
	therefore,
	find
	from
the
	totality
	of 	the 	circumstances
	that
	the 	Association
	had
	the
serious 	intent
	to 	adjust 	differences
	and
	"entered
	into
discussion
	with
	a
	fair
	mind 	and
	sincere
	purpose
	to 	find
	a
	basis
of 	agreement."
	Globe
	Cotton
	Mills 	v.
	NLRB
	(5th
	Cir.
	1939) 	103
F.	
F.2d 	91,
	94 	[4
	LRRM
	621];
	NLRB
	v.
	Herman
	Sausage
	Co.
	(5th
	Cir.
1960)
	277
	F.2d
	793
	[45
	LRRM
	3072].
We
	conclude
	that
	the
	strike
	engaged
	in
	by
	the
	Association
was
	provoked
	by
	the
	District,
	and
	that
	the
	Association
	had
participated
	in 	the
	collective
	bargaining 	process 	in
	good
faith.
	We,
	therefore,
	hold
	that
	the
	strike
	by
	the 	Association
was
	not 	in
	violation
	of
	EERA
	but
	was
	protected
	conduct.
	The
alleged 	violations
	of 	subsections
	3543.6
(a), 	(b),
	(c) 	and 	(d)
which
	relate
	to
	the
	Association's
	conduct
	are 	therefore
dismissed.
Letters
	of
	Commendation
	to 	Non-Strikers
After
	the	
work	
stoppage,
	letters
	of
	commendation 	were
	sent
to
	some
	faculty
	members 	who
	crossed 	picket 	lines 	to 	teach
during 	the
	strike.
	The
	Association 	did 	not 	formally 	charge
that 	this
	conduct
	was 	a
	violation 	of 	the 	Act.
	However,
	the
Association 	argued 	in
	its
	briefs 	that 	the
	letters
	of
commendation
	constituted
	a
	violation 	of 	subsection 	3543.S(a) 	of
the 	Act. 	Witnesses 	were 	examined 	and 	cross-examined 	on
	the
issue,
	and 	both
	parties 	extensively 	discussed 	the 	question 	in
65

66
post-hearing
	briefs.
	The
	hearing
	officer
	examined
	the
allegation
	and 	made 	a
	determination
	on
	the
	merits.
	Therefore,
it
	is
	proper 	here
	to
	examine
	this
	unalleged
	violation
	which
	is
intimately 	related
	to
	the
	subject
	matter 	of 	the 	complaint
	and
which
	has
	been
	fully
	litigated.
	Santa
	Clara 	Unified
	School
District,
	supra.
It
	has 	long
	been
	held
	that
	providing
	certain 	benefits
	to
non-strikers 	constitutes
	unlawful
	interference
	with
	employees
in 	the 	exercise 	of 	Frotected
	activities.
	San
	Diego
	Unified
School
	District
	(6/19/80)
	PERB
	Decision
	No.
	137; 	Rubatex
	Corp.
(1978) 	235
	NLRB
	833 	[97
	LRRM
	1534);
	Aero-Motive
	Mfg. 	Co. 	(1972)
195
	NLRB
	790 	(79
	LRRM
	1496]
	(cash
	bonus);
	and 	Swedish
	Hospital
Medical 	Center
	(1977) 	232
	NLRB
	16 	[97
	LRRM
	1173]
	aff.
	238
	NLRB
1087 	[99
	LRRM
	1467]
	(extra
	day
	off).
	This
	strike
	has 	been
found
	to
	be
	protected
	conduct.
	The
	District's
	action 	of
granting
	the
	benefit
	of
	letters
	of
	commendation
	only
	to 	those
who
	refrained
	from
	participation
	in 	protected 	organizational
activity
	tends 	to 	discourage
	employees 	from
	engaging 	in
protected
	activity
	in 	the
	future.
While
	there
	is
	no
	conclusive 	evidence
	that
	the
	letters
	of
commendation
	will
	be 	used 	for 	promotions,
	transfers,
evaluations 	or 	future 	job 	references,
	the 	existence 	of 	these
letters
	in 	the 	personnel
	files 	constitutes
	a
	continuing 	threat
that 	they 	will
	be 	employed
	for 	such 	uses.
	Such 	a
	threat 	has 	a
chilling 	effect
	on 	employee
	participation 	in 	future
66

67
organizational
	activity,
	thereby 	causing
	at 	least 	slight
	harm
to
	employee
	rights.
The
	District's
	argument
	that
	the
	letters
	of
	commendation
were
	issued
	because
	the
	employees
	continued
	to
	perform
	their
jobs
	under
	adverse
	conditions
	does
	not
	alter
	the
	fact
	that
	a
benefit
	was
	conferred
	on
	non-strikers
	and
	denied
	to
	strikers.
Neither
	can
	the
	District's
	explanation 	for
	its
	conduct
reasonably
	be
	construed
	as
	operational 	necessity
	sufficient
	to
outweigh
	the
	harm
	to
	employee
	rights.
	The
	fact 	that
	the
District
	provoked
	the
	strike
	by
	its
	own
	unfair
	practices 	also
weighs
	the 	balance
	against
	it.
	We,
	therefore,
	conclude
	that
the
	letters
	of
	commendation
	constitute
	an
	interference
	with
employee
	rights
	in
	violation
	of 	subsection
	3543.S(a)
	of 	the
	Act.
REMEDY
The 	Board
	has 	broad
	remedial
	power
	to 	effectuate
	the
purposes
	of
	the 	Act. 	Subsection 	3541.S(c)
	of
	EERA
	sets 	forth
PERB's
	remedial
	authority
	in 	unfair 	practice 	cases.
	It
provides:
The
	board
	shall
	have
	the
	power
	to 	issue
	a
decision
	and
	order
	directing
	an
	offending
party 	to 	cease
	and
	desist
	from
	the 	unfair
practice
	and
	to 	take 	such
	affirmative
action, 	including 	but 	not
	limited 	to 	the
reinstatement 	of
	employees 	with 	or 	withoutback 	pay, 	as
	will 	effectuate 	the
	policies 	of
this 	chapter.
A
properly 	designed 	remedial 	order 	seeks
	a
	restoration 	of
the
	situation
	as 	nearly 	as 	possible 	to 	that
	which 	would 	have
67

68
obtained 	but 	for 	the 	unfair 	labor 	practice. 	Santa 	Clara
Unified 	School 	District, 	supra; 	Phelps 	Dodge 	v. 	NLRB 	(1941) 	313
u.s. 	177 	[61 	s.ct. 	845].
The 	Board 	must 	remedy 	any 	discriminatory 	action 	taken
against 	Association 	members 	for 	participating 	in 	this 	strike.
The 	strike 	in 	this 	case 	does 	not 	constitute 	an 	unfair 	practice
because 	it 	was 	both 	provoked 	by management 	and 	occurred 	after
good 	faith 	participation 	in 	bargaining 	and 	impasse 	procedures.
We 	have 	further 	rejected 	the 	charge 	that 	this 	strike 	violated
California 	common 	law 	and 	thus 	reject 	the 	argument 	that 	it 	was
unlawful/unprotected.36
36Even 	if 	it 	had 	been 	determined 	that 	the 	conduct 	of 	the
Association 	was 	unprotected, 	we 	would 	still 	have 	power 	to
remedy 	discrimination 	against 	these 	strikers. 	NLRB 	v. 	Thayer
Co., 	supra; 	Rockwell 	v. 	Board 	of 	Education 	(1975) 	20 	CCH 	357;
AFSCME, 	Local 	481 	v. 	Town 	of 	Sanford 	(1980) 	37 	CCH 	615.
In 	Thayer 	Co., 	supra, 	34 	LRRM 	2250, 	2253, 	the 	U.S. 	Court 	of
Appeal 	stated:
• 	. 	• 	[W] here, 	as 	in 	the 	instant 	case, 	the
strike 	was 	caused 	by 	an 	unfair 	labor
practice, 	the 	power 	of 	the 	Board 	to 	order
reinstatement 	is 	not 	necessarily 	dependent
upon 	a 	determination 	that 	the 	strike
activity 	was 	a 	"concerted 	activity" 	within
the 	protection 	of 	section 	7. 	Even 	if 	it 	was
not, 	the 	National 	Labor 	Relations 	Board 	has
power 	under 	section 	lO(c) 	to 	order
reinstatement 	if 	the 	discharges 	were 	not
"for 	cause" 	and 	if 	such 	an 	order 	would
effectuate 	the 	purposes 	of 	the 	Act 	.•.•
The 	point 	is 	that 	where 	collective 	action 	is
precipitated 	by 	an 	unfair 	labor 	practice, 	a
finding 	that 	that 	action 	is 	not 	protected
under 	section 	7 	does 	not, 	ipso 	facto,
68

69
In
	order
	to
	remedy
	the
	unfair
	practices
	of 	the
	District
	and
to 	prevent
	it
	from
	benefiting
	from
	its
	unfair
	labor
	practices,
and
	in
	order
	to
	restore
	the
	status
	quo
	so 	as
	to
	effectuate
	the
purposes
	of
	EERA,
	we
	order
	the
	District
	to
	remove 	from
	employee
personnel
	files
	all
	letters
	of
	commendation
	issued 	to
non-strikers.
We
	further
	find
	that
	an
	appropriate
	remedy
	to 	the
District's
	unilateral
	changes
	is
	to 	order 	the
	reinstitution
	of
preclude
	an
	order
	reinstating
	employees
	who
have 	been
	discharged
	because
	cf 	their
participation	
in 	the 	unprotected
	activity.
The 	same
	reasoning
	has
	been
	applied 	to
	two
	state
	public
employment
	relations 	statutes.
	Michigan's 	Public
	Employment
Relations
	Act
	expressly
	prohibits
	strikes.
	Nonetheless, 	the
Supreme
	Court
	of
	Michigan
	held
	that
	the
	Michigan
	Employment
Relations
	Commission
	could, 	despite
	the
	illegality
	of
	a
teachers'
	strike,
	order 	reinstatement 	of
	strikers
	where
	the
school
	district
	committed 	an
	unfair 	labor
	practice
	which
provoked
	the
	strike.
	The
	Court
	found
	that
	such
	remedy
	would
effectuate
	the
	policies
	of 	the
	Act
	for
	two
	reasons:
First,
	the 	employer's 	antecedent 	unfair
labor 	practices
	may 	have 	been
	so
	blatant
that
	they 	provoked
	the
	employees
	to
	resort
to 	unprotected
	action.
	Second,
reinstatement
	is
	the 	only 	sanction
	which
prevents
	an 	employer
	from
	benefitting
	from
his 	unfair 	labor 	practices
	through
discharges
	which 	may 	weaken
	or 	destroy
	a
union.
	Rockwell
	v.
	Board
	of 	Education,
supra,
	20
	CCH
	357, 	362.
In
	Town
	of 	Sanford, 	supra, 	the
	Maine
	Superior
	Judicial
Court 	upheld 	the 	order 	of 	the
	Maine 	Labor
	Relations
	Board
(MLRB)
	requiring 	the 	reinstatement 	of 	municipal 	employees 	who
had 	engaged 	in 	an
	illegal 	strike
	in 	response 	to
	an
	employer's
unlawful 	bad
	faith 	bargaining.
	The 	Court 	found
	reinstatement
to
	be 	a 	proper 	exercise 	of 	the
	MLRB's
	remedial 	power
	to 	restore
the 	status 	quo.
69

70
the 	status 	quo 	prior 	to 	the 	changes 	and 	to 	order 	the 	District
to 	bargain 	over 	those 	changes. 	The 	District 	shall 	bargain 	over
policies 	unilaterally 	implemented 	on 	February 	25, 	1980.
We 	also 	find 	it 	appropriate 	that 	the 	District 	be 	ordered 	to
destroy 	those 	letters 	of 	reprimand 	which 	relate 	to 	the 	refusal
to 	do 	voluntary 	duties.
We 	also 	find 	it 	appropriate 	to 	order 	the 	District 	to 	cease
and 	desist 	from: 	refusing 	to 	negotiate 	in 	good 	faith, 	refusing
to 	participate 	in 	good 	faith 	in 	the 	impasse 	procedure, 	denying
the 	Association 	its 	right 	to 	represent 	unit 	members 	and
interfering 	with 	employees 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act.
It 	is 	also 	appropriate 	that 	the 	District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the 	order. 	Posting
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
of 	the 	parties' 	readiness 	to 	comply 	with 	the 	ordered 	remedy.
See 	Placerville 	Union 	School 	District 	(9/18/78) 	PERB 	Decision
No. 	69; 	Pandol 	and 	Sons 	v. 	ALRB 	and 	UFW 	(1979} 	Cal.App.3d 	580,
587; 	NLRB 	v. 	Express 	Publishing 	Co. 	(1941} 	312 	U.S. 	426 	[8 	LRRM
415] •
70

71
Where
	the
	parties
	have
	entered
	into
	a
	negotiated
	agreement
which
	relates
	to
	any
	of
	the
	remedies
	ordered
	by
	this
	Board,
	the
parties
	may
	stipulate
	that
	the
	pertinent
	language
	of 	the
agreement
	fulfills
	the 	requirements
	of
	this
	Decision
	or,
	in
	the
event 	of
	a
	failure
	to 	agree,
	the
	negotiated
	instrument
	may 	be
submitted
	as	
a	
relevant
	document
	in
	a
	compliance
	hearing.
ORDER
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
	law
	and
the
	entire
	record 	of
	this
	case,
	it
	is
	hereby
	ORDERED
	that
	the
Modesto
	City
	Schools
	and
	its
	representatives
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
1..	
Refusing
	and
	failing
	to
	meet 	and
	negotiate 	in
good
	faith
	with 	the
	Modesto
	Teachers
	Association.
2.
	Denying
	the
	Modesto
	Teachers
	Association
	its
right
	to 	represent 	unit
	members.
3.
	In
	any 	manner
	restraining,
	discriminating 	against
or 	otherwise
	interfering
	with 	the
	rights
	of
	employees
	because
of 	the 	exercise 	of
	their 	rights
	under
	the 	Educational
Employment
	Relations 	Act.
4. 	Refusing
	to
	participate
	in
	good
	faith 	in 	the
impasse 	procedure.
B .	
TAKE 	THE 	FOLLOWING
	AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
	RELATIONSACT:
1.. 	Upon
	request, 	bargain 	with 	the 	Modesto 	Teachers
Association, 	as 	the 	exclusive 	representative 	of
	all
	employees
in 	the 	appropriate 	unit.
71

72
2.
	Upon
	request,
	provide 	the
	Modesto
	Teachers
Association
	reasonable
	amounts
	of 	released
	time
	to
	participate
in
	negotiations.
3. 	Rescind
	the
	policy
	on
	class 	size
	and
	the
	policy
on
	grievance
	adopted
	on
	February
	25, 	1980,
	and
	restore
	the
procedures
	reflecting
	the
	status
	quo
	as
	of
	the
	prior
	school
year.
4.
	Remove 	and
	destroy
	all
	letters
	of
	reprimand
issued 	for
	refusal
	to
	participate
	in 	voluntary
	duties.
5.. 	Remove 	and
	destroy
	all 	letters
	of
	commendation,
or
	any
	reference
	thereto,
	issued 	to
	those
	teachers
	who
	did
	not
participate
	in 	the
	strike.
Within 	ten
	(10)
	workdays
	after
	the 	date 	of 	service 	of
	this
Decision, 	prepare
	and
	post 	copies 	of 	the 	Notice
	to
	Employees,
attached
	as
	an
	appendix
	hereto,
	signed
	by 	an
	authorized 	agent
of 	the
	employer.
	Such
	posting
	shall
	be
	maintained 	for
	at 	least
thirty
	(30)
	consecutive
	workdays
	at
	all
	school
	sites
	and
	all
other
	work
	locations
	where
	notices 	to
	certificated
	employees
customarily 	are 	placed.
	Such
	Notice
	must
	not
	be
	reduced
	in
size
	and
	reasonable 	steps 	shall
	be
	taken
	to 	ensure
	that
	it
	is
not 	defaced, 	altered
	or 	covered
	by 	any
	material.
Within
	thirty
	(30) 	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.
72

Continue
	to 	report
	in
	writing
	to 	the
	regional
	director
periodically 	thereafter
	as
	directed.
	All
	reports
	to 	the
regional
	director
	shall
	be
	served
	concurre~tly
	on
	the
	charging
party 	herein.
73
IT
	IS
	FURTHER
	ORDERED
	THAT:
1..	
Charge 	S-CO-48,
	filed
	by
	the
	Modesto
	City
Schools,
	is
	DISMISSED.
2..	
Charges
	S-CE-320 	and
	341,
	filed
	by
	the
	Modesto
Teachers
	Association, 	are
	DISMISSED
	in
	their 	entirety.
3. 	That
	portion 	of
	Charge 	S-CE-318,
	filed
	by
	the
Modesto
	Teachers
	Association,
	referring
	to
	the
	March 	3
	"Staff
Update"
	is
	DISMISSED.
4.
	Those
	portions
	of
	Charge 	S-CE-323,
	filed
	by
	the
Modesto
	Teachers
	Association,
	referring
	to
	reprimands
	for 	the
refusal
	to 	surrender 	school
	keys
	and
	lesson 	plans
	and
	to 	attend
a
	faculty
	meeting
	are
	DISMISSED.
5. 	That
	portion 	of
	Charge 	S-CE-325,
	filed
	by
	the
Modesto
	1eachers 	Association, 	referring
	to 	conditioning
agreement
	on
	acceptance 	of
	a
	no-strike 	clause
	is
	DISMISSED.
Members 	Tovar 	and
	Jaeger 	joined 	in 	this
	Decision.
73

APPENDIX NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State
	of
	California
After
	a
	hearing
	in
	Case
	Nos. 	S-CO-48,
	S-CE-318,
	319, 	320,
323,
	324, 	325, 	326, 	328, 	329, 	341,
	Modesto
	City 	Schools, 	in
which
	all
	parties
	had
	the
	right
	to
	participate,
	it
	has
	been
found
	that
	the
	Modesto
	City
	Schools
	violated
	the
	Educational
Employment
	Relations
	Act
	by
	failing
	and
	refusing 	to
	meet
	and
negotiate
	in
	good
	faith
	with
	its
	employees'
	exclusive
representative,
	the
	Modesto
	Teachers
	Association.
	These
violations
	occurred
	when
	the
	District:
1 .	
Refused
	to 	consider 	in
	good
	faith
	the
	factfinder's
report
	and
	concessions
	made 	by
	the
	Modesto
	Teachers
	Association
after
	factfinding;
2..	
Denied
	the 	bargaining
	representatives
	of
	Modesto
Teachers
	Association 	released
	time
	contrary 	to
	the 	requirements
of
	the 	Educational
	Employment
	Relations
	Act;
3. 	Conditioned 	agreement
	on
	the
	Association's
	abandonment
of
	its
	representative 	capacity
	at
	the 	informal
	step 	of 	the
grievance 	procedure;
4. 	Bypassed
	the
	exclusive 	representative
	and
	attempted 	to
negotiate
	directly
	with
	members
	of 	the 	bargaining
	unit
	through
the
	"Staff
	Update"
	of 	February 	14,
	1980;
	and
5..	
Unilaterally
	adopted
	a
	grievance 	policy
	and 	a
	class
size
	policy 	without 	providing 	the
	exclusive
	representative
	with
notice
	and 	an
	opportunity 	to 	negotiate.
It
	has
	further
	been 	found
	that
	by
	this
	same
	conduct 	the
District
	denied 	the 	exclusive 	representative
	its
	right 	torepresent 	unit
	members
	in
	their
	employment
	relations
	with 	the
District.
It
	has
	further
	been 	found
	that
	the
	District 	interfered
	with
employees 	because 	of
	their 	excercise 	of
	rights 	protected
	by
	the
Educational
	Employment
	Relations
	Act 	by:
1..	
Refusing
	and
	failing
	to
	meet 	and
	negotiate 	in
	good
faith
	with 	the 	exclusive 	representative 	selected
	by
	theemployees 	to
	meet 	and
	negotiate
	on
	their 	behalf;
2.
	Issuing
	letters
	of 	reprimand 	for
	participation 	in 	the
work-to-rule
	program 	of 	the 	Modesto 	Teachers 	Association 	in
which 	teachers 	refused 	to 	participate 	in 	voluntary 	duties;
	and

2
3.
	Issuing
	letters
	of
	commendation
	to
	those
	teachers
	who
did 	not
	participate
	in
	the
	strike
	of
	March 	4
	through
	March
	12,
1980.
It
	has
	further
	been
	found
	that
	the
	District
	refused
	to
participate
	in
	good
	faith
	in 	the
	impasse
	procedure
	by
	failing
to 	give
	good
	faith
	consideration 	to
	the
	factfinding
	report.
As
	a
	result
	of
	this
	conduct,
	we
	have 	been
	ordered
	to 	post
this
	notice,
	and
	WE
	WILL:
A.
	CEASE
	AND
	DESIST
	FROM:
1.
	Refusing
	and
	failing
	to
	meet
	and
	negotiate
	in
	good
faith
	with
	the
	Modesto
	Teachers
	Association.
2.
	Denying
	the
	Modesto
	Teachers
	Association
	its
	right
	to
represent 	unit
	members
	in
	their
	employment
	relations
	with 	the
District.
3.
	Interfering
	with
	employees
	because
	of
	their 	exercise
of
	rights
	guaranteed
	by
	the 	Educational
	Employment
	Relations
Act. 
4. 	Refusing
	to
	participate
	in
	good
	faith
	in 	the
	impasse
procedure.
B.
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE
	ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	EDUCATIONAL
	EMPLOYMENT
	RELATIONS
ACT:
1.
	Rescind
	the 	policy
	on
	class 	size
	and
	the
	policy
	on
grievance
	adopted
	on
	February 	25, 	1980,
	and
	restore
	the
procedures
	reflecting
	the
	status
	quo
	as
	of
	the
	prior 	school
year.
2.
	Remove 	and
	destroy
	all 	letters
	of
	reprimand,
	or
	any
reference 	thereto,
	issued 	to 	teachers 	for
	failing
	to 	perform
voluntary 	duties.
3.
	Remove 	and
	destroy
	all 	letters
	of
	commendation,
	or
	any
reference 	thereto,
	issued 	to 	those 	teachers
	who
	did 	not
participate
	in 	the
	strike.
DATED:	
MODESTO
	CITY
	SCHOOLS
By:
Authorized 	Agent
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED 	FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE
	WORKDAYS 	FROM 	THE 	DATE 	OF
	POSTING
	AND
MUST 	NOT 	BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED 	OR COVERED 	BY ANY
MATERIAL.
2

4.