Modesto City Schools (PERB I011E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY SCHOOLS,
Charging Party,
v.
MODESTO TEACHERS ASSOCIATION/CTA/NEA,
et al
Respondents.
Case No. S-CO-48
PERB Order No. IR-11
March 10, 1980
MODESTO TEACHERS ASSOCIATION/CTA/NEA
Charging Party,
v.
MODESTO CITY SCHOOLS, et al
Respondents.
Case No. S-CE-318,319,320
Appearances; Keith V. Breon, Attorney (Breon, Galgani & Godino)
for Modesto City Schools; Kirsten Zerger, Attorney (California
Teachers Association) for Modesto Teachers Association, CTA/NEA.
Before Gluck, Chairperson; Gonzales and Moore, Members.
DECISION AND ORDER
A work stoppage is now underway in the Modesto City School
District and each side to the dispute has requested the Public
Employment Relations Board (hereafter PERB) to seek injunctive
relief in connection with the strike. The employer has claimed
and charged that the parties have completed mediation and fact-
finding and that the strike is an illegal pressure tactic.

The employee organization has charged, in support of its claim
for injunctive relief, that the employer has unlawfully implemented
unilateral changes of terms and conditions of employment; that
the employer has refused to resume negotiations with the
organization, even though the organization has tried to submit
modified proposals; and, that the employer has discriminated
against striking employees by treating substitutes more favorably
than the treatment last offered some employees by the employer
during negotiations.
We have considered the preliminary investigatory report made
by the general counsel pursuant to Board Rule 3810 0 et seq. (8 Cal.
Admin. Code sec. 38100). We have concluded that there are
insufficient grounds for PERB to seek injunctive relief against
either party at this time. We nevertheless retain jurisdiction
over the unfair practice charges filed with the Board, and direct
the general counsel to supplement his earlier investigation.
The Educational Employment Relations Act contains no provision
which makes strikes after the completion of the statutory impasse
procedures unlawful per se. The California Supreme Court in
San Diego Teachers Association v. Superior Court (1979) 24 Cal.3d 1
at 13 said:
[S]ection 3549 does not prohibit strikes
but simply excludes the applicability of
Labor Code section 923's protection of
concerted activities.
- 2 -

In the same case the court also noted that:
[T]he EERA gives PERB discretion to withhold
as well as pursue, the various remedies at
its disposal. Its mission to foster construc-
tive employment relations (§ 3540) surely
includes the longrange minimization of work
stoppages. PERB may conclude in a particular
case that a restraining order or injunction
would not hasten the end of a strike . . . and,
on the contrary, would impair the success of the
statutorily mandated negotiations between union
and employer. [Id.]
Response to the employer's request for injunctive relief
requires, at least in part, an evaluation of all of the circum-
stances surrounding the organization's action, including the
possibility and implications of the organization being engaged
in an unfair practice strike. Similarly, consideration of the
organization's request is at least partly dependent upon the
precise nature of the employer's actions and the possibility
that those actions do or do not fall within an employer's post-
impasse prerogatives. For these reasons, we ORDER:
1. That the general counsel continue his investigation
and report his further findings to the Board within twenty-four
hours of this order; and,
2. That the chief administrative law judge immediately
proceed with his investigation, notice of complaint, and hearing,
if appropriate and necessary, on the unfair practice charges filed
herein.
By: Harry Gluck, Chairperson Barbara D. Moore, Member
(Member Gonzales has indicated his opposition to the majority's
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interim order retaining jurisdiction in this matter. In light of
the nature of this case the majority has decided to issue its
interim order without benefit of a dissent. Such a dissent may be
forthcoming, assuming Member Gonzales wishes to file one.)
-4-

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY SCHOOLS,
Charging Party,
v.
MODESTO TEACHERS ASSOCIATION/CTA/NEA,
et al
Respondents.
)
)
) Case No. S-CO-48
PERB Order No. IR-11
March 10, 1980
)
)
)
)
)
)
))
)_
)
MODESTO TEACHERS ASSOCIATION/CTA/NEA
Charging Party,
v.
MODESTO CITY SCHOOLS, et al
Respondents.
)
)
) Case No. S-CE-318,319,320
)
)
)
)
)
)
Appearances: Keith V. Breon, Attorney (Breon, Galgani &
Godino) for Modesto City Schools; Kirsten Zerger, Attorney
(California Teachers Association) for Modesto Teachers
Association, CTA/NEA.
Before Gluck, Chairperson; Gonzales and Moore, Members.
Raymond J. Gonzales, Member, dissenting:
The following is my dissent in this case. The majority
ordered its decision released without waiting for my dissent.
Therefore, I am issuing it separately at this time.

The Majority Violates the Rights of a Board Member
In an unprecedented action a majority of the Board (Gluck
and Moore) have denied me the right to attach a dissent to
their order in the Modesto City Schools v. Modesto Teachers
Association CTA/NEA (3/10/80) PERB Decision No. IR-11. In a
gratuitous comment following their order they indicated that
"In light of the nature of this case the majority has decided
to issue its interim order without benefit of a dissent. Such
a dissent may be forthcoming, assuming Member Gonzales wishes
to file one."1
The parties and the public may be interested to know that I
was not afforded an opportunity to offer a dissent. In fact,
the majority decision was not circulated until after the
workday at 5 p.m. on the 10th of March after I had left the
PERB offices. I was informed by phone that the decision was
going out without my dissent.
Additionally, a serious question of impropriety arises in
this matter.2 Apparently, the PERB general counsel was
1Page 4 of the majority decision in Modesto, supra, PERB
Decision No. IR-11.
2 See Government Code section 11120 et seq; see especially
section 11125 and 11128.
An executive session for the PERB is noticed on a daily
basis at 10 a.m. If the Board has no business of an executive
session nature, the scheduled meeting is routinely cancelled or
rescheduled for a time certain. On March 10, 1980 no executive

instructed by a majority of the Board or by the Chairman
unilaterally to ask the parties five specific questions in his
investigation.3 Instructions to the general counsel were
either given at an illegal executive board meeting or in an
illegal consultation with the Chairman of the Board. Whatever
the method, I was not given the opportunity to participate in
the formulation of the questions. I was called by the general
counsel who attempted to read the questions to me, to which I
responded, "It is my opinion that a majority of the Board has
participated in an illegal meeting and I will not be a party to
this."
session of the Board was held at 10 a.m. nor was the session
rescheduled to a time certain.
I give these details to suggest to the parties and the
public that this Board may now be embarking on a dangerous
road, one that may ultimately lead to the repeal of collective
bargaining for public employees, a concept that I still
support, though with some disillusionment. It is clear to me
that the influence of totalitarian behavior, not unlike that
which has dominated some of the largest labor unions and the
management of some school districts, has taken over control of
this Board. I wonder if I will ever be allowed to add a
3 See five questions attached as appendix A.

dissent to a majority decision again or be forced to submit my
comments separately to the parties.
Board's Loss of Neutrality
While I have viewed, over the years that I have served on
the Board, a gradual erosion of the intent of SB 160 (Rodda)
which was to be an equitable forum for school districts and
employees for the resolution of labor-management disputes, I
had continued to hope that the Board by its decisions would
never fall over the precipice and lose its image of
neutrality. I am forced, however, by this decision and those
very important ones that I know will issue in the coming weeks
to lament the loss of objectivity and neutrality by a majority
of this Board.
While many may say that my comments are merely those of a
sore loser or one who is biased in the opposite direction from
that of the majority, I assure the reader that my only
objective is to sound the bell of warning, and suggest that the
concept of an equitable collective bargaining process that I
have always supported may, indeed, be coming to an end. I have
no axe to grind—no hidden agenda—no special interest except
to do all I can to promote quality education in our public
school system and to promote this quality via an even-handed
resolution of labor-management disputes.
Consequently I feel that to remain silent in this case and
others to follow on the broader implications of the legal

issues would be a dereliction of duty on my part. While there
has been a tendency to couch all Board decisions—majority and
minority views—in "legalese" and obfuscating rhetoric, I feel
compelled to go right to the "guts" of the issue: Is this
Board losing its sense of neutrality? I advise the parties,
the public and the Legislature to examine major cases that will
issue soon in the areas of strikes, scope of representation,
union access and the like to see just what neutrality remains
at the PERB.
Additionally I caution the public to compare the comments
made by some Board members for public consumption with the
actual votes in decisions that more accurately suggest the true
philosophy of the individual. On May 1, 1979, at a public PERB
meeting, Chairman Gluck stated "I know Ray is very deeply
concerned with this and very sincere. And it might surprise
him to know that I am not in favor of strikes in the
educational system or in the public sector, but I am a realist
to know that 20 years of illegality has not stopped them."4
While I, too, concede that strikes have not stopped, Chairman
Gluck has now personally reinterpreted California law and is
well on the road to sanctioning strikes, as the following
discussion will show.
4Verbatim statement of Chairman Gluck, taken from a tape
recording of the public meeting of PERB, on May 1, 1979, at
Sacramento, California.

The Issue of Jurisdiction
My decision not to seek an injunction in this case is not
based on any change in my position that strikes by public
school employees are illegal and should be enjoined. I
continue to believe that the Legislature, in enacting the EERA,
did not intend to change the state of the law in California
with respect to public employee strikes: that such strikes,
absent specific legislative authorization, are illegal.5
If PERB had jurisdiction in this case, I would not hesitate
to vote that we seek an injunction against the striking
teachers in Modesto. But the EERA gives PERB exclusive initial
jurisdiction only over strikes that it could properly find were
unfair practices. San Diego Teachers Assn. v. Superior Court
(1979) 24 Cal.3d 1. In order to be able to properly find that
a strike in this case is an unfair practice, PERB must first
determine that the unfair practice charge based on the strike
states a prima facie case. If it does not state a prima facie
5 Pasadena Unified School District v. Pasadena Federation
of Teachers (1977) 72 Cal.App.3d 100, 106; Crowley v. City and
County of San Francisco (1976) 64 Cal.App.3d 450, 454; Los
Angeles Unified School District v. United Teachers (1972) 24
Cal.App.3d 242, 245; Trustees of Cal. State Colleges v. Local
1352, S.F. State etc. Teachers (1970) 13 Cal.App.3d 863, 867;
City of San Diego v. American~Federation of State etc.
Employees (1970) 8 Cal.App.3d 308, 310; Almond v. County of
Sacramento (1969) 276 Cal.App.2d 32, 35; Los Angeles
Metropolitan Transit Authority v. Brotherhood of Railroad
Trainmen (1960) 54 Cal.2d 684, 687; 59 Ops.Cal.Atty.Gen. 197,
200 (1976).

case, then I fail to see how we have any jurisdiction over the
strike, either to seek an injunction or to pursue our normal
Board procedures for adjudicating unfair practice charges.
In the present case, I do not believe that the strike can
properly be found to be an unfair practice under any of the
applicable provisions of section 3543.6. The parties have
completed all impasse procedures set forth in the EERA, so that
the strike cannot be a refusal to participate in the impasse
procedure in good faith in violation of section 3543.6(d).
Unless there is a continuing duty to negotiate after the
completion of impasse procedures, I do not see how a strike can
be a refusal to negotiate in good faith. The Board has not yet
ruled on this issue, but it seems reasonable that such a duty
should be imposed on the employee organization only if the
employer is also under a duty to negotiate in good faith. I
believe that under normal circumstances, neither party has an
obligation to negotiate after impasse procedures have been
completed. I see nothing in this case that would cause me to
place that obligation on either party. Thus, the strike does
not constitute a violation of the employee organization's
obligation to meet and negotiate in good faith under
section 3543.6(c).
Since the charge does not state a prima facie case, I
believe it should be dismissed, which is our normal procedure

in unfair practice cases.6 while admittedly a case is
usually dismissed by a PERB agent assigned to process the
unfair practice charge, I believe that strike cases in which
injunctive relief has been requested pose special circumstances
to which we should respond as quickly as possible. If we
cannot properly find the strike to be an unfair practice, we
should step out of the way so that the District can pursue
other remedies.
My position in this case is in basic accord with the
opinion of the California Supreme Court in San Diego Teachers
Assn. v. Superior Court, supra, 24 Cal.3d 1. The Court ruled
that the San Diego Unified School District failed to exhaust
its administrative remedies under the EERA before going to
court to seek injunctive relief against a teacher strike,
basing its ruling on three findings: (1) that the strike by
the San Diego teachers could properly be found to be an unfair
practice; (2) that PERB could furnish relief equivalent to that
available in a court action; and (3) that the EERA gives PERB
6 See PERB rule 32620(b)(3), giving PERB agents assigned
to a case the power and duty to "Dismiss the charge or any part
thereof as provided in section 32630 if it is determined that
the charge or the evidence is insufficient to establish a prima
facie case."
PERB rules are codified at California Administrative Code,
title 8, section 31000 et seq.

exclusive initial jurisdiction over remedies against strikes it
could properly find were unfair practices.
In the present case, the District has no administrative
remedies. The strike by the Modesto teachers cannot properly
be found to be an unfair practice since it does not constitute
a prima facie unfair practice violation. Because of this, PERB
cannot seek injunctive relief under section 3541.3(j) which
governs PERB's ability to seek injunctive relief. This section
provides in pertinent part:
Upon issuance of a complaint charging that
any person has engaged in or is engaging in
an unfair practice, the board may petition
the court for appropriate temporary relief
or restraining order.
Clearly, we cannot seek injunctive relief unless we issue a
complaint. We currently have no formal procedures for issuing
a complaint, but the Board, in its brief to the Supreme Court
in the San Diego case, argued that the issuance of a notice of
hearing, which presupposes a finding that the charge states a
prima facie case, is tantamount to issuing a complaint. Thus
if a charge does not state a prima facie case, we cannot issue
a complaint/notice of hearing, cannot seek an injunction, and
therefore cannot furnish relief equivalent to that available in
a court action.
The District properly came to PERB so that we could
determine whether or not a strike under the circumstances in
Modesto could properly be found to be an unfair practice. We

are the appropriate body to make such a determination. But we
owe it to the District, to the public, and most of all, to the
school children of Modesto, to make that determination
quickly. If we can seek injunctive relief against the strike,
I believe we should do so without delay. If we cannot, which I
believe to be true here, we should say so quickly and allow the
District to argue in court that the strike, while not an unfair
practice under the EERA, is nevertheless illegal under
California common law and should be enjoined. If the majority
believes that the strike, while constituting a prima facie
unfair practice violation, should not be enjoined, it should
clearly state its reasons for finding that a continuation of
the strike "will further the public interest in maintaining the
continuity and quality of educational services." (San Diego
Teachers Assn. v. Superior Court, supra, 24 Cal.3d at p. 11.)
The majority opinion, however, provides only a sparse rationale
for its decision not to seek injunctive relief, and no reason
at all for its decision to retain jurisdiction.
The Majority Seeks to Permit Strikes
Regardless of the basis for the majority's decision, the
result is that the strike will continue to disrupt the
education of the children in Modesto. The majority has denied
the District's request for injunctive relief while at the same
time preventing the District from going to court to seek an
injunction on the ground that strikes are illegal under
10

California common law. This irresponsible act allows the
strike to continue without any resolution as to legality or
illegality.
The majority decision should be recognized as effectively
permitting the strike as an acceptable political and economic
weapon in school district labor disputes. Until today,
approval of the strike as a political and economic pressure
tactic in a teacher labor dispute has been withheld. Neither
the Legislature nor the courts have sanctioned it.7 In this
case, the majority attempt to accomplish this administratively.
7 In enacting the Rodda Act in 1976, the Legislature took
care to exclude the strike from the protected activities
guaranteed to school employees by enacting section 3549 which
provides that section 923 of the Labor Code (generally
acknowledged as granting the right to strike for private sector
employees) shall not be applicable.
Section 3549 provides:
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 school
employer from making the final decisions
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 school
employers and the exclusive representative
entered into in accordance with the
provisions of this chapter.
11

The majority avoids explicitly sanctioning the strike as a
legitimate tactic but manages to achieve the same effect by
simply retaining jurisdiction, thus preventing the superior
court from considering the legality of the strike. In
addition, the majority has ordered further "investigation" and
time-consuming administrative processing of the charges.
The net result of the majority's actions is, of course,
that the strike will go on. (Indeed, the strikers can claim
with some justification that it is lawful because the PERB and
the courts will not say otherwise.) It is well recognized that
a strike is most successful for bringing about a favorable
settlement in its first few days. Faced with chaos in the
classrooms, the school board will be under great pressure to
settle and end the strike. On the other hand, if the strike is
not successful in its early days, its ultimate success is
doubtful.
Thus, the first few days of the strike are crucial. Yet
all the flimflam in the majority's decision ensures that no
legal action can be taken against the strike until long after
the strike has succeeded or failed based on its effectiveness
as an economic and political weapon against the school board.
The calculated artfulness of "retaining jurisdiction" and
"insufficient grounds to seek injunctive relief" should not be
allowed to obscure the cleverly disguised impact of the
majority decision to allow the strike to go forward while
12

shielding it from judicial action.8 Even if the strike is
found to be an unfair practice or otherwise illegal many months
later, the strike will have run its course long before. In all
likelihood, no ruling will ever be made, as the charges will
probably be dropped as part of a strike settlement.
Thus, the majority decision not to seek an injunction is
based on what I perceive to be their ultimate desire to make
strikes legal. This is a prime example of administrative
bodies such as PERB assuming the role of Legislature and
court. It is my firm belief that a decision to legalize
strikes far exceeds the authority given to PERB by the
Legislature. Such a major decision should be made by the
Legislature or the courts and not by three members of an
administrative board who are neither elected nor subject to
removal from office for anything short of malfeasance or
dereliction of duty. My decision in this case would place the
majority decisions states in part:
We have concluded that there are
insufficient grounds for PERB to seek
injunctive relief against either party at
this time. We nevertheless retain
jurisdiction over the unfair practice
charges filed with the Board, and direct the
general counsel to supplement his earlier
investigation.
13

ultimate issue of whether a strike that is not an unfair
practice is illegal in the more appropriate forum of the courts,
Raymond J. Gonzales, Member
14

EXHIBIT A
MODESTO:
Factual issues for further investigation.
1. Regarding CTA's renewed bargaining offers: what concessions
were specifically made? what new issues or recommendations put
forward? what was District's response (to the extent not already
indicated in the report)? Answers on these questions should
note whether the concessions were made prior to 2/25 school board
unilateral action, or, after 2/ 25, or both before and after.
Copies of any written proposals made after factfinding.
2. W i t h respect to each employer unilateral action, indicate its
relation to (a) last best offer, (b) factfinder recommendation,
(c) prior collective agreement,and(d) other. Indicate how the
district decided to choose one type of change rather than another
(e.g. last best offer rather than factfinder recommendation)?
3. Indicate any of the unilateral changes that deviate from what
had been tentatively agreed to by the parties, and, if so, what
was the change and on what basis was it made (see no. 2, above)?
4. The report indicates that the grievance procedure has been
eliminated and the fist school board is using a "non-contract"
procedure. What is this procedure? What did the contract provide
for? What was used in the period from the time of contract expira-
tion to the time of the unilateral change? Is the District now
refusing to entertain grievances?
5. The facts in connection with discrimination arising out of
substitute hiring should be amplified: what is the District

justification for differing treatment of substitute salaries from.
those of some members of the unit? And, what is the evidence
regarding the alleged employer threat not to hire substitutes
who refuse to cross the picket line in the present strike?

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MODESTO CITY SCHOOLS,
Charging Party,
v.
MODESTO TEACHERS ASSOCIATION
CTA/NEA, et al
Respondents.
Case No. S-CO-48
ADDENDA TO
PERB ORDER NO. IR-11
March 14, 1980MODESTO TEACHERS ASSOCIATION
CTA/NEA
Charging Party
v.
MODESTO CITY SCHOOLS, et al
Respondents.
)
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)
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Case Nos. S-CE-318,319,320
Appearances: Keith V. Breon, Attorney (Breon, Galgani & Godino)
for Modesto City Schools; Kirsten Zerger, Attorney (California
Teachers Association) for Modesto Teachers Association, CTA/NEA.
Before Gluck, Chairperson; Gonzales and Moore, Members.

Member Moore, addending:
The majority opinion in Modesto City Schools (3/10/80) PERB Order
No. IR-11 does not reflect events leading up to its issuance that are
relevant to Dr. Gonzales's dissent. While I am reluctant to air the
internal workings of the Board, I believe those portions of the dissent
that challenge the legality of the actions of the majority must be
addressed publicly.
The majority position was the product of deliberations that took
place during a lawful executive session held on Friday, March 7, 1980,
and a Board decision and order was prepared accordingly. Before the
order was approved and signed, Dr, Gonzales issued a public statement
of his position in this case. Since Dr. Gonzales's views had already been
publicly released, I saw no reason to hold back the majority opinion for
an official dissent. Withholding the majority opinion would have deprived
the public of the majority rationale in an extremely Important case.
While PERB customarily issues dissents at the same time as the majority
opinion, the enforceability of the Board's order does not depend upon
inclusion of the dissent. Given the keen public interest in strike
situations, the important issues presented and the fact that Dr. Gonzales
had already published his position, I believe the parties and the public
were entitled to speedy issuance of the majority opinion.
In retaining jurisdiction over this case the Board noted that Immediate
further investigation was needed to clarify certain issues. The questions
presented to the general counsel were designed to elicit necessary information.
PERB's general counsel works for the Board itself. It is common for the
general counsel to talk with individual Board members separately and to
act upon the direction of two or more of the members. In this case, the
general counsel sought input from all three Board members, including
Dr. Gonzales.

The majority position was arrived at lawfully. The majority opinion
was issued quickly, consistent with the serious public interests involved
and without unfairness to the dissenting member. While I want to make
this point clear, I choose not to comment further.
By: Barbara D. Moore, Member

Chairperson Gluck, addending:
Subsequent to the release of the majority opinion in Modesto
City Schools (3/10/80) PERB Order No. IR-11, Member Gonzales
submitted his dissent on March 12, 1980. In that dissent, he
challenged the lawfulness of the procedure followed by the Board
majority in deliberating and issuing its order on the matter.
Although his claims are without foundation, the charges leveled
are sufficiently serious to warrant illumination of the facts
surrounding this controversy.
The Board convened on Friday, March 7, 1980, to consider the
general counsel's report and recommendation in that case. Despite
at least one day's advance notice of that meeting, Member Gonzales
chose not to attend the deliberations. Instead, he submitted a
memorandum setting forth his view that the Board was without
jurisdiction to consider the matter. At the Board meeting, the
majority determined that insufficient grounds existed to seek the
injunctive relief requested by either party. This position was
communicated to the parties by the general counsel on the same
day with notice that a further written order would be forthcoming.
On Monday, March 10, 1980, the Board's interim order calling
for further investigation was prepared after discussion and exchange
of draft proposals. This was consistent with normal Board procedures,
Although Member Gonzales knew that the majority was preparing its
order for publication to the parties that same day, and knew that
he would be dissenting, he left the office prior to completion of
4

the majority draft and was unavailable to submit his dissent at the
time the decision was issued. The Board majority, nevertheless,
ordered publication of its decision in light of the serious nature
of the case and its sincere concern that immediate further investi-
gation of the facts was required.
The Board majority, by its order, attempted to sharpen the
focus of necessary additional inquiry by conveying a confidential
communication to its general counsel specifying areas to be probed
in his investigation. Member Gonzales declined to make a contribution
to the formulation of these questions. Thus, in addition to the
misstatements contained in his dissent, Member Gonzales also breached
the confidentiality of the Board's communication with its attorney
by appending the list of questions to his dissent. The allegation
that the majority's individual conferences with its own counsel was
illegal needs no response. In its Board order of Monday, March 10,
the majority specifically indicated that Member Gonzales was dissenting
and that his decision would be forthcoming. Obviously, there was no
effort to deny him the opportunity to express his point of view.
But, the majority could find no good reason to await upon Member
Gonzales' convenience to consider the critical matters before it.
To the foregoing, I would add the following comments. As
Member Gonzales has graciously acknowledged, my personal views on
the matter of strikes have been expressed openly, publicly, and
committed to tape. Indeed, I testified on the matter of strikes
before the Senate Rules Committee conducting my confirmation hearing
early last year. I stated then that unless the Legislature provided

employees with some viable alternative to work stoppages, collective
bargaining would become an undesirable contest of political power
and that, further, the process would prove of little value, if any,
to smaller employee groups who could not compete with the resources
available to public agencies. More importantly, I suggested that
failure to provide such alternatives, or outlawing strikes, would do
nothing to prevent work stoppages, as history has repeatedly
demonstrated.
Whatever Member Gonzales would imply by comparing my public
statement with his interpretation of my vote as a member of this
Board, the fact is that I vote on specific cases as the applicable
statute and the California Supreme Court court require that I vote,
irrespective of whatever philosophical preferences I may hold.
The fact is that nothing in EERA makes post-impasse strikes
illegal per se. Even Member Gonzales has never suggested that such
a provision exists. The California Supreme Court has expressly
denied that section 3549 of EERA makes strikes unlawful and, by
specific reference to his amicus brief, disagreed with Member Gonzales
on this very point. Member Gonzales disagrees with the California
Supreme Court, but fails to offer authority for his position. The
Supreme Court has expressly withheld a determination of the question
of legality of public employee strikes under California common law.
Member Gonzales disagrees with the California Supreme Court and
states categorically that strikes are illegal. The Supreme Court
expressly conferred jurisdiction on this Board to consider injunctive

relief as ancillary to our unfair practice jurisdiction. Member
Gonzales disagrees with the Supreme Court and states that PERB has
no jurisdiction in this case.
I have joined in a finding that the post-impasse strike in
Modesto was not made unlawful per se by EERA and may be a protected
activity. The final determination of this last question depends on
the outcome of the unfair practice charge filed by the District, but
not yet heard by this agency. It appears that Member Gonzales has
already decided the underlying unfair practice charge without
benefit of hearing, testimony, argument or due process to the parties.
He has done so by the simple expedient of usurping the Supreme Court's
authority to decide the ultimate question and has usurped the
Legislative role by writing into EERA his own prohibition against
any and all strikes. His attack on the majority, couched in
campaign-style rhetoric, is the very kind of obfuscation he attributes
to others. By accusing the majority here, he conceals the fact that
he is doing precisely what he charges the majority of doing. As to
his motives and hidden agenda, a matter he raises, I make no comment.
The parties and the public will draw their own conclusions.
By: Harry Gluck, Chairperson son