Eureka City Schools/Eureka High School District (Order) (PERB I014E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EUREKA TEACHERS ASSOCIATION,
Charging Party,
v.
EUREKA CITY SCHOOLS/EUREKA
HIGH SCHOOL DISTRICT,
Respondents.
Case Nos. SF-CE-445, 451
PERB Order No. IR-14
March 26 , 1980
Appearances; Charles R. Gustafson, Kirsten L. Zerger,
Attorneys for Eureka Teachers Association; Richard Smith,
Attorney (Harland & Gromala) for the Eureka City Schools and
Eureka High School District.
Before Gluck, Chairperson; Gonzales and Moore, Members.
ORDER
Pursuant to PERB's interim order in this case (Eureka City
Schools/Eureka High School District (3/25/80) PERB Order
No. IR-13), the general counsel continued his investigation and
reported the results thereof to the Board itself. Based on all
the information before the Board, we decline to seek the
injunctive relief requested by the Association against the
District. A decision giving the Board's rationale and
including Chairperson Gluck's dissent will issue at a later
date.
PER CURIAM

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
EUREKA TEACHERS ASSOCIATION,
Charging Party,
v.
EUREKA CITY SCHOOLS/EUREKA
HIGH SCHOOL DISTRICT,
Respondents.
Case Nos. SF-CE-445, 451
PERB Order No, IR-14
May 29, 1980
Appearances; Charles R. Gustafson, Kirsten L. Zerger,
Attorneys for Eureka Teachers Association; Richard Smith,
Attorney (Harland & Gromala) for the Eureka City Schools and
Eureka High School District.
Before Gluck, Chairperson; Gonzales and Moore, Members.
DECISION
This decision sets forth the rationale supporting PERB
Order No. IR-14 issued March 26, 1980.
FACTUAL SUMMARY
On February 25, 1980, the Eureka Teachers Association,
(hereafter Association) the exclusive representative of the
certificated employees in the Eureka City Schools/Eureka High
School District (hereafter District), filed an unfair practice
charge (Case No. SF-CE-445) against the District alleging
violations of sections 3543, 3543.5, and 3548 of the
Educational Employment Relations Act (hereafter EERA or the

Act).l The Association requested that the Public Employment
Relations Board (hereafter PERB or Board) seek injunctive
relief to restrain the District from making public a
Educational Employment Relations Act is codified at
Government Code section 3540 et seq. All future section
references are to the Government Code unless otherwise
indicated.
Section 3543 provides:
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
effect; provided that the public school
employer 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

factfinding report. This Board did not seek the requested
relief and the factfinding report was made public on or about
March 3, 1980.
has been given the opportunity to file a
response.
Section 3543.5 reads as follows:
It shall be unlawful for a public school
employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
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).
Section 3548 provides:
Either a public school employer or the
exclusive representative may declare that an
impasse has been reached between the parties
in negotiations over matters within the
scope of representation and may request the

board to appoint a mediator for the purpose
of assisting them in reconciling their
differences and resolving the controversy on
terms which are mutually acceptable. If the
board determines that an impasse exists, it
shall, in no event later than five working
days after the receipt of a request, appoint
a mediator in accordance with such rules as
it shall prescribe. The mediator shall meet
forthwith with the parties or their
representatives, either jointly or
separately, and shall take such other steps
as he may deem appropriate in order to
persuade the parties to resolve their
differences and effect a mutually acceptable
agreement. The services of the mediator,
including any per diem fees, and actual and
necessary travel and subsistence expenses,
shall be provided by the board without cost
to the parties. Nothing in this section
shall be construed to prevent the parties
from mutually agreeing upon their own
mediation procedure and in the event of such
agreement, the board shall not appoint its
own mediator, unless failure to do so would
be inconsistent with the policies of this
chapter. If the parties agree upon their
own mediation procedure, the cost of the
services of any appointed mediator, unless
appointed by the board, including any per
diem fees, and actual and necessary travel
and subsistence expenses, shall be borne
equally by the parties.
On March 5, 1980, the Association voted to engage in a
strike against the District.
The Association filed an amendment to the above charge on
March 7, 1980, and requested the Board, among other things, to
seek injunctive relief restraining the District from using the
factfinding report as a basis for negotiations.

The Association commenced a strike against the District on
March 20, 1980. On that same date the Association filed
additional unfair practice charges (Case No. SF-CE-451) against
the District alleging violations of Sections 3543, supra,
3543.l(a) and (b),2 3543.3,3 and 3543.5, supra, of
2 Section 3543.1(a) and (b) read as follows:
(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. Employee organizations may
establish reasonable restrictions regarding
who may join and may make reasonable
provisions for the dismissal of individuals
from membership.
(b) Employee organizations shall have the
right of access at reasonable times to areas
in which employees work, the right to use
institutional bulletin boards, mailboxes,
and other means of communication, subject to
reasonable regulation, and the right to use
institutional facilities at reasonable times
for the purpose of meetings concerned with
the exercise of the rights guaranteed by
this chapter.
3 Section 3543.3 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 the
Education Code, shall meet and negotiate

the Act. The Association again requested that the Board seek
injunctive relief ordering the District to: (1) bargain in
good faith; (2) participate in any bona fide mediation effort;
(3) rescind all unilateral changes in terms and conditions of
employment; (4) refrain from taking any disciplinary action
against employees for engaging in protected activity; and (5)
refrain from imposing or threatening to impose reprisals
against any employee because of the exercise of rights
protected under the EERA.
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.
The cases were consolidated, and the Board itself issued
Interim Order No. IR-13 on March 25, 1980, declining to seek
injunctive relief. The Board did, however, retain jurisdiction
and instructed the general counsel to continue the
investigation into the requests for injunctive relief. Based
on the results of the general counsel's continuing
investigation, a majority of the Board again declined to seek
injunctive relief on March 26, 1980 (PERB Order No. IR-14).4
4 On March 27, 1980, the Association filed additional
unfair practice charges against the District (SF-CE-453) and
requested the Board to again consider seeking injunctive
relief. The Board did not deliberate the merits of this
request for injunctive relief because the parties reached
agreement early in the morning on March 28, 1980.
On April 9, 1980, the charging party withdrew without

prejudice all of the unfair practice charges which it had filed
against the District (SF-CE 445, 451 and 453).
DISCUSSION
An injunction is proper in circumstances mandating
extraordinary relief.5 Included within the prerequisites for
the issuance of an injunction are reasonable cause to believe
that the acts alleged actually occurred and that those acts
likely constitute unfair labor practices, the likelihood of
irreparable harm and inadequacy of a legal remedy.6
With regard to those aspects of the Association's request
that the Board seek injunctive relief ordering the District to
bargain and participate in mediation in good faith, the general
counsel's investigation revealed that, prior to March 18, 1980,
the District had conditioned future negotiations on the
withdrawal by the Association of its threat to strike but that
several unconditional mediation sessions had been held from
March 18 to March 26. Therefore the Board had no evidence
indicating that it was likely that the District was not
mediating in good faith at that time. Thus, negotiations
between the parties regarding the terms of a new agreement had
not broken down but rather were proceeding according to the
5 Wilkins v. Oken (1958) 157 Cal.App.2d 603; West v. Lind
(1960) 186 Cal.App.2d 563.
6Weingard v. Atlantic Savings and Loan Assn. (1970) 1
Cal.3d 806.

statutory scheme of the EERA. An injunction could have
required no more in this respect.
The Association further claimed that it was appropriate to
seek injunctive relief requiring the District to rescind an
"emergency procedures" policy that was unilaterally adopted by
the District and which, if implemented, would have changed
several terms and conditions of employment.
This policy was adopted in November 1978, after the
execution of the existing agreement between the parties which
is still in effect, but the facts indicate that it has not been
in effect continuously since its adoption. By its own terms,
the Superintendent of the District is only authorized to
implement the policy in the event of an employee slowdown, work
stoppage, or employee involvement in other concerted activities.
The policy provides, inter alia, that all employee absences
within the scope of existing leave policies must be
substantiated with a doctor's statement or other authenticated
documentation; that no administrator may give approval to any
employee's request for permission to take personal leave; and
that any certificated employee absent without leave for 5 days
or more without satisfactory explanation shall be deemed to
have resigned. It further provides that any employee
organization that engages in any illegal activity may have its
right to payroll deductions, as well as other rights and
privileges provided in any existing contract or District

policy, terminated. These aspects of the policy appear on
their face to conflict with existing provisions of the
agreement7, namely Article 10 dealing with leaves8 and
7Article 5 sets forth the effect of the agreement between
the parties and reads, in part:
It is understood and agreed that the
specific provisions contained in this
agreement shall prevail over District
practices and procedures and over state laws
to the extent permitted by State law and
that in the absence of specific provisions
in this Agreement such District practices
and procedures are discretionary.
8 HEALTH LEAVE
Unpaid leaves of absence may be requested in instances
where an employee is physically unable to work. A
substantiating statement from a licensed physician may be
required.
PERSONAL LEAVE
For purposes of attending a funeral, wedding or graduation
of a close friend or organizational business, teachers may
make advance requests for a personal leave.
PERSONAL NECESSITY LEAVE
Six days of sick leave may be used by a teacher upon a
prior confirmation, in cases of personal necessity.
(1) "Personal Necessity" means circumstances that are
serious in nature, that the teacher cannot reasonably
be expected to disregard, that necessitates immediate
attention, that cannot be taken care of after work
hours or on weekends, or circumstances of compelling
personal importance.

Article 11 which sets forth responsibilities relating to
membership dues deductions.9
(2) A teacher shall make his request in advance except in
these cases;
a) Death or serious illness of a member of the
immediate family.
b) Accident, involving his person or property, or the
person or property of a member of his immediate
family.
SICK LEAVE
Every teacher shall be entitled to 12 days of paid sick
leave annually.
e. The Board with probable cause, may require a
verification of illness. Generally, five consecutive
working days will pass before such verification is
required.
(Emphasis added)
9 The District will deduct from the pay of Association
members and pay to the Association the normal and regular
monthly Association membership dues as voluntarily authorized
in writing by the teacher on appropriate forms subject to the
following conditions:
1. Such deduction shall be made only upon submission of
the appropriate form to the designated representative
of the District duly completed and executed by the
teacher and the Association.
2. The District shall not be obligated to put into effect
any new, changed or discontinued deduction until the
pay period commencing fifteen (15) days or more after
such submission.
10

Even though the District had cancelled several one-day
leaves of absence for reading teachers to attend a conference,
there was no evidence indicating that other provisions of the
policy had been implemented by the superintendent nor that
further implementation was imminent. The alleged harm to the
reading teachers caused by cancellation of their leaves of
absence could have been remedied through a backpay order. The
mere possibility that the superintendent would implement other
provisions of the policy is not a sufficient basis for finding
the requisite irreparable harm.10
The grant of injunctive relief is an extraordinary power.
It is to be exercised always with great caution and only in
those cases where it fairly appears that the moving party will
suffer irreparable harm in the absence of speedy relief
(Schwarts v. Arata (1920) 45 C A . 596, 601) and where there is
a likelihood of success on the merits of the underlying unfair
practice charge.
Adequate recourse for the alleged violations of the EERA
was available to the Association through the normal unfair
labor practice mechanism (Gov. Code sec. 3541.5 (c); Cal. Admin.
Code, tit. 8, sec. 32600, et seq.) or through court action for
breach of contract and, thus,one of the required elements, the
10 Similarly, the Board itself has directed the general
counsel not to seek relief enjoining a mere threat of a work
stoppage (Chico USD (1979), S-CO-37).
11

existence of irreparable harm that must be present before the
Board itself is warranted in seeking injunctive relief, was
lacking in this case. This was not therefore a proper case for
this Board to seek injunctive relief.
Our decision is limited to the state of the facts in
existence on March 26, 1980.
ORDER
For these reasons the Public Employment Relations Board
declined to direct the general counsel to seek injunctive
r e l i e f pursuant to section 3541.3 (j) in these cases.
By: Barbara D. Moore, Member Raymond J. Gonzales Member
Chairperson Harry Gluck's dissent begins on page 13.
12

Harry Gluck, Chairperson, dissenting:
The Board majority reached its conclusion declining to seek
injunctive relief on March 26, following the general counsel's
further investigation at the Board's direction.1 At that
time, the Board majority had before it a written submission
from the employer conceding that it had officially implemented
and partially applied a resolution that even the majority
perceives as presenting a prima facie conflict with existing
contractual terms. Ante, pp. 9-10.2
1Contrary to the implication of the majority (ante, p. 3)
this Board did not consider the prior Association requests for
injunctive relief regarding the factfinder's report until the
request at issue here was brought to the Board's attention by
its general counsel a few weeks later, when the strike was
already underway.
school board policy was adopted March 6, 1980 and
provided, in full:
EMERGENCY BOARD POLICIES
In the event of an employee work slowdown,
work stoppage or any other concerted
activities, the Superintendent is authorized
to implement the following emergency
policies:
I. EMPLOYEE ABSENCES
All employees absences within scope
of existing leave policies must be
substantiated with a doctor's
statement or other authenticated
documentation acceptable to the
Superintendent. All unauthorized
absences will result in a deduction
of salary for each day of absence for
13

As demonstrated by the general counsel's investigation,
this resolution was first adopted in 1978 in connection with a
certificated and classified
employees. Further, no administrator
may give approval to any employee's
request for permission to take
personal leave even with the loss of
pay.
II. SUBSTITUTES
The Superintendent shall be
authorized to pay up to $85 per day
and reasonable allowance costs for
substitute employees replacing
regular teachers during the period of
time the emergency is in effect and
up to $68 per day and reasonable
allowance costs-—or up to $8.50 per
hour and reasonable allowance cost
for less than eight (8) hours—for
substituting employees replacing
supervisors of children during the
period of time the emergency is in
effect.
III. CLOSING OF SCHOOLS
The Superintendent and/or his
designated authority shall be the
only employee of the Districts
authorized to close any of the
Districts' educational facilities.
Such facility will be closed only
when, in the judgment of the
Superintendent or his delegated
authority, the physical welfare of
the children on that site is
questionable.
IV. PHYSICAL AND EDUCATIONAL PROTECTION
The Superintendent and/or his
designated authority shall have the
14

threatened work stoppage. Thereafter, the policy was
apparently suspended. Early in March, 1980 the policy was
authority to take such immediate
emergency steps as he deems necessary
to insure the physical and
educational well-being of the
students of the Eureka City Schools.
The Superintendent will also have
full authority to take such steps as
he deems necessary to insure and
protect the physical well-being of
all employees of the Eureka City
Schools, as well as the properties
owned by the Districts and supervised
by the Board of Education and its
authorized agent.
V. ABSENT WITHOUT LEAVE
Any certificated employee absent
without leave for five (5) days or
more without satisfactory explanation
shall be deemed to have resigned and
the separation shall be entered on
the official records. Provided that,
if at any time within thirty (30)
days after the date of said
resignation, the employee so
absenting himself/herself shall make
satisfactory explanation to the Board
of Education, he/she may be
reinstated to his/her position.
Any classified employee absent
without leave for one (1) day or more
without a satisfactory explanation
shall be deemed to have resigned and
the separation shall be entered on
the official records.
VI. EMPLOYEE ORGANIZATIONS
In the event any employee
organization engages in any illegal
15

re-adopted as negotiations bogged down and strike talk
increased. However, the resolution was again rescinded later
activity, its rights and privileges
provided in any existing Contracts
and/or Board Policies may be
terminated, including, but not
limited to, payroll deductions.
VII. MANAGEMENT/CONFIDENTIAL EMPLOYEES
It is the responsibility of every
management/confidential employee to
act as an arm of the Board of
Education's administration. Any
member of said group failing to
comply with the directions of the
Board of Education, the
Superintendent and/or delegated
authority during the emergency shall
be considered to have resigned
his/her position and responsibilities
unless within a twenty-four (24) hour
period he/she files with the
Superintendent his/her official
written explanation for failure to
comply with said directives. The
individual will then file within
thirty-six (36) hours a written
request to appear before the Board of
Education at a hearing during which
he/she shall set forth, in writing,
reasons for his/her actions.
The Superintendent shall have the
authority to relieve any management/
confidential employee immediately of
responsibility when, in his opinion,
the management/confidential employee
has failed to carry out the
directives necessary to insure the
operation of the school(s).
The decision of the Board of
Education shall be final in each case.
16

in March when the District perceived that negotiations were
going forward to its satisfaction. Nevertheless, when
negotiations slowed down once more, talk of a strike resumed
and the District re-adopted its policy. Immediately, the
District partially applied the policy by cancelling certain
expected employee leaves of absence. Moreover, the District
never denied or repudiated its intent to fully apply the policy
after the strike commenced, even when expressly asked by the
general counsel during his further investigation.3
VIII. AUTHORITY
These Emergency Board Policies will
supersede all existing Board and
Administrative Policies, governing
the operations of the schools under
normal operating conditions.
The employer distributed the policy statement to
certificated employees, with a cover letter summarizing the
District's view that under California law public employee work
stoppages are illegal. The District letter did not include any
reference to the recent Supreme Court decision in San Diego
Teachers Association v. Superior Court (1979) 24 Cal.3d 1,
giving PERB exclusive initial jurisdiction to consider unfair
practice charges and requests for injunctive relief in
connection with school work stoppages.
The cover letter noted that the adopted policy was "in full
force and effect." The letter also stated:
Compliance with these policies is required.
Any action to the contrary will be subject
to disciplinary measures including, but not
limited to, forfeiture of salary and
benefits and possible termination.
3 The general counsel did not submit a written report of
his re-investigation to the Board or to me in response to my
17

request. Therefore, this factual statement is made on the
basis of my own recollection and notes based on his oral
report. Regardless, the District's prior admission that its
policy was implemented and partially applied constitutes an
adequate ground to base a finding against the District on the
effectiveness of the policy.
Clearly, the majority's understanding of the word
"implemented" must be other than the definition commonly used.
Here, the District had an anti-concerted activity plan, adopted
and re-adopted the plan at will, and put a portion of it into
immediate effect to the detriment of employees. The remainder
of the policy hung in ready position to punish the exclusive
representative and employees engaging in concerted activity.
To me, a promise to terminate employees and a promise to
withhold organizational income, even as threats, are
potentially fatal blows to employee actions which may be
protected.4
It is PERB's duty to seek a resolution of injunctive relief
requests consistent with the statutory purposes of EERA. The
majority argues that this case is the mirror-image
of a case involving an employee organization strike threat.
Ante, p. 11, fn. 10. Three facts distinguish the cases,
however. First, there is no suggestion that a mere threat to
strike is ever unlawful activity under EERA, constitutional
free speech issues aside. Second, the District here had
engaged in more than mere threats. Action had been taken and
even the majority does not discount that fact. In reality,
this case more closely approximates another Board decision to
seek injunctive relief. Esparto Unified School District,
No. S-CE-322, request for injunctive relief granted
April 30, 1980. In that case, a unanimous Board sought an
18

majority concludes that because negotiations were still taking
place at the time relief was sought, damage to the process was
not sufficient to justify emergency relief. Ante, pp. 7-8.
The point, however, is that the Association was negotiating
against a "loaded gun" directed at its membership, as well as
its own organizational purse. This is hardly consistent with
EERA. Nor would it enhance the statutory design to require
employee organizations to accept the majority's implied
invitation to break off negotiations in order to get injunctive
relief whenever an employer has committed an unfair practice.
An employee organization can only be expected to do the best
that it can under such circumstances, including pursuit of a
negotiated agreement if it so chooses, as well as its unfair
practice remedy. It is especially ironic, here, that the
exclusive representative suffers because it sought to use the
lawful process of this agency; whereas the employer implemented
injunction to stop threatened but unscheduled disciplinary
action by an employer against selected employees. The
employees had engaged in an arguably protected refusal to work
when their employer had unilaterally changed the contractually
agreed upon school calendar. Finally, section 3543.5(a) makes
it unlawful for an employer to:
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.
19

a self-help policy and filed no unfair practice charges against
the exclusive representative.
Additionally, the majority result is disturbing because it
is inconsistent with our statutory goal of maintaining the
continuity and quality of educational services. San Diego
Teachers Assn. v. Superior Court, supra, 24 Cal.3d at p.11.
The Board's decision could easily have prolonged and compounded
the strike in Eureka by adding the thorny issue of reprisals to
an ultimate contractual settlement. Indeed, it was hardly
surprising that,immediately after PERB's decision declining to
pursue injunctive relief, the District may have retracted its
previous "no reprisals" offer and taken a harder, punitive
position.5 That the parties eventually did reach agreement
cannot be construed as proof that the majority's decision was
correct.
Finally, the Board's conclusion did not give proper
consideration to the probable bad faith bargaining history in
this case. First, the District had earlier conditioned its
participation in negotiations and mediation on the Association
retracting its strike threat. Granted, the District ultimately
withdrew this condition (as did the Association withdraw its
threat) and the parties resumed their talks, but the condition
5These allegations were the basis for the unfair practice
charge referred to by the majority at p. 6, fn. 4,"ante.
20

had initially been proposed at the time the District's
anti-concerted activity policy was in effect. Second, the
District's policy was adopted without notice to or negotiations
with the exclusive representative, in apparent derogation of
existing contract terms. In my view, these actions would be
inherently destructive of the statutory rights of the exclusive
representative and its members and would probably constitute
unfair practices in violation of EERA. For this reason I would
also conclude that the strike here, in fact, was arguably
protected activity by the employee organization under the terms
of our decision in Modesto City Schools (3/12/80) PERB Order
No. IR-12. As such, the continuing and irreparable harm of the
District's conduct, both as applied and as threatened, should
have been enjoined.
In sum, the majority's conclusion that normal unfair
practice procedures and breach of contract remedies provide
"adequate recourse" for any injury suffered (ante, p. 11)
derogates the collective organizational and employee rights at
stake and ignores the practical realities of the bargaining
relationship under stress. Further, putting aside the
character of the work stoppage here, this Board has previously
indicated that a strike can be a protected activity under the
EERA. By its "too little, too late" approach in this case, the
majority has made it possible for an employer, acting
21

unlawfully, to nullify that protection for an indefinite period
of time with impunity. No final order eventually issued in an
unfair practice case can restore that protection or rectify the
harm done.
Harry Gluck, Chairperson
22