El Dorado Union High School District (PERB 0537EB)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EL DORADO UNION HIGH SCHOOL DISTRICT.
Charging 	Party.
v.
EL 	DORADO UNION HIGH 	SCHOOL 	DISTRICT
FACULTY ASSOCIATION. 	CTA/NEA.
Respondent.
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) 	Case No. 	S-CO-117
Request 	for 	Reconsideration
PERB Decision No. 	537a
PERB Decision No. 	537b
May 	5, 	1986
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Appearances: 	Littler. 	Mendelson, 	Fastiff 	& Tichy by Thomas M.
Griffin for 	the El Dorado Union High School District; 	Kirsten L.
Zerger. 	Attorney for 	the El 	Dorado Union High 	School 	District
Faculty Association, 	CTA/NEA.
Before Hesse. 	Chairperson; 	Morgenstern, 	Burt, 	Porter and Craib,
Members.
DECISION
CRAIB, 	Member: 	The El Dorado Union High School District
Faculty Association, 	CTA/NEA 	(Association) 	requests
reconsideration of 	Decision No. 	537a 	issued 	by the Public
Employment Relations Board 	(PERB 	or 	Board) 	on February 	3,
1986. 	The 	request 	is 	based 	on the 	contention that Decision
No. 	537a 	contains 	errors 	of 	both 	law and 	fact. 	For 	the 	reasons
which follow, 	we 	deny the 	request.
DISCUSSION
In a 	hearing 	before 	an administrative 	law 	judge 	of 	this
agency, 	it was 	shown that 	the Association and 	its 	members 	had
engaged 	in the 	following conduct: 	(1) 	a 	boycott 	of 	extra-duty
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assignments 	beginning September 	11. 	1984 	and 	ending October 	11.
1984; 	and 	(2) 	a 	refusal 	to 	begin work duties 	for 	the first 	30
minutes 	of 	the workday on October 	8 and 	10. 	1984. 	It was also
shown 	that 	the 	parties 	reached 	impasse 	in 	their 	negotiations 	at
the close of 	a 	bargaining session on September 	12, 	1984.
In PERB Decision No. 	537, 	the Board 	found 	that 	both types
of 	conduct violated 	section 	3543.6(c) 	of 	the Educational
Employment Relations 	Act 	(EERA or 	Act) l and 	issued 	an order
so 	stating. 	In PERB Decision No. 	537a, 	the Board 	reconsidered
Decision No. 	537 	at 	the 	request 	of 	the Association. 	We
concluded 	that, 	while we 	had 	committed 	no 	error 	in 	finding 	that
the Association had 	violated 	the EERA, 	we 	had 	incorrectly
identified 	the 	specific 	sections 	of 	the Act 	violated 	by 	each
1
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et. 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to 	the Government 	Code.
Section 	3543.6 	provides 	in pertinent 	part 	as 	follows:
It 	shall 	be unlawful 	for 	an employee
organization to:
(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	
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type of Association conduct. 	Thus, 	the Board's Order 	in
Decision No. 	537. 	which stated 	that 	the Association had
violated only section 3543.6(c), 	was 	in error.
Our 	conclusion 	in Decision No. 	537a was 	based 	on the 	court
of 	appeal 	decision 	in Moreno Valley Unified 	School 	District 	v.
PERB 	(1983) 	142 Cal.App.3d 	191. 	In that 	case, 	the court made
clear 	that 	a 	party's 	failure 	to 	participate 	in good 	faith 	in
the 	statutory 	impasse 	procedures 	will 	violate 	subdivision 	(e)
of 	section 3543.5 	(for 	employers) 	or 	subdivision 	(d) 	of 	3543.6
(for employee organizations). 	It will not, 	however, 	give rise
to 	a violation of 	the mutual 	duty 	to 	meet 	and 	negotiate 	since,
where 	impasse 	has 	been reached, 	that duty 	is 	suspended.
In the 	case 	before PERB, 	the 	facts 	showed 	that 	the
Association 	had 	begun to 	engage 	in 	boycott 	activity 	on
September 	11. 	at a 	time when 	it 	still 	had an obligation to meet
and 	negotiate 	in good 	faith. 	After 	impasse was 	declared 	on
September 	12, 	additional 	boycott activity occurred, 	at a 	time
when 	the Association 	then had 	an obligation 	to 	participate 	in
good faith in the 	impasse procedures. 	So. 	too. 	the 	refusal 	on
two 	occasions 	to 	report 	to work 	for 	30 minutes 	occurred 	during
this 	latter period. 	In Decision No. 	537a, 	therefore, 	the Board
amended 	its 	Order 	in 	the 	case 	consistent with 	the 	following
conclusions: 	(1) 	that 	boycott 	activity which occurred 	prior 	to
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the declaration of 	impasse violated 	section 3543.6(c); 	and
(2) 	boycott 	activity subsequent 	to 	that declaration, 	together
with 	the 	refusals 	to 	report 	to work, 	violated 	section 	3543.6(d)
In Decision No. 	537a. 	the term 	"post-impasse" 	was used 	to
characterize 	that 	Association 	conduct 	which 	occurred 	after
impasse was 	reached on September 	12, 	1984. 	In the 	instant
request 	for 	reconsideration, 	the Association adamantly 	asserts
that 	the Board's 	description of 	events 	after 	September 	12 	as
"post-impasse" was erroneous. 	In fact, 	says the Association,
that 	conduct 	occurred 	"during 	the 	impasse-resolution 	process."
(Emphasis 	in 	the 	original.)
Plainly, 	the Association has 	mistaken the Board's 	meaning.
It 	has 	apparently 	interpreted 	the 	term 	"post-impasse" 	as
referencing 	the 	period 	following 	the 	exhaustion 	of 	the 	impasse
procedures. 	No 	such meaning was 	intended.
ORDER
Finding no error 	of 	fact 	or 	of 	law in Decision No. 	537a,
the 	instant 	request 	for 	reconsideration of 	the Decision 	is
DENIED.
Members Morgenstern, 	Burt 	and Porter 	joined 	in this Decision.
Chairperson Hesse's 	concurrence 	begins 	on page 	5.
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Hesse, 	Chairperson, 	concurring: 	I 	concur with 	the result
reached 	by my 	colleagues. 	I 	find 	it 	unnecessary 	to 	rely on
Moreno Valley Unified 	School 	District 	v. 	PERB 	(1983) 	142
Cal.App.3d 	191. 	In 	that 	case, 	the Court 	of 	Appeal 	held 	that
the 	employer's 	institution 	of 	its 	last 	best 	offer 	after 	the
parties' 	declaration 	of 	impasse was 	only a 	violation of
Government 	Code 	section 	3543.5(e) 	but 	not 	(c).1 In 	this
case, 	the 	employee 	organization 	violated 	EERA by 	its 	unlawful
partial 	strike. 	Significantly, 	the 	court 	in 	Moreno Valley
noted 	that
It 	is manifest 	that 	a 	unilateral 	change 	in
employment 	conditions 	is 	not 	the 	same 	thing
as a 	strike, 	at 	any stage of 	an employment
dispute. 	. 	. 	." 	(Id. 	at p. 	197.)
The 	court 	noted 	this 	distinction 	because 	the 	employer's
institution 	of 	its 	last best 	offer 	"signals 	an 	end 	to 	the
mutual 	dispute 	resolution 	process 	regarding 	those 	terms. 	The
employer 	loses 	incentive 	to 	participate 	in 	the 	dispute
resolution process, 	because 	it 	has 	imposed 	terms 	it has 	deemed
satisfactory." 	(Id. 	at 	197-98.)
A strike, 	however, 	is 	designed to be 	used as a tool 	during
negotiations, 	indeed, 	an 	economic 	strike 	only has meaning 	in
the 	setting of 	the parties' 	attempts 	to 	reach 	agreement. 	A
strike 	is 	a 	lever 	to 	force 	the 	employer 	to make a 	change 	in 	a
1Section 	3543.5 	sets 	forth 	employer 	unfair 	practices.
The 	equivalent 	description 	of 	employee 	organization 	unfair
practices 	is set forth at section 3543.6(c) 	and 	(d).
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negotiation 	stance, 	just as 	a 	lockout 	is 	designed 	to make 	a
union 	change 	its 	position. 	To 	sever 	the 	strike 	tactic 	from 	the
negotiation 	process 	is 	impossible 	because 	the 	strike 	is
designed 	"to 	exert 	economic 	pressure 	on 	the 	other 	party to
resolve disputed 	issues." 	(Id. 	at 	197, 	emphasis added.) 	This
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necessarily 	implies 	that 	the 	duty to 	negotiate 	in 	good 	faith 	is
vulnerable 	to 	the 	accusation 	that 	an 	illegal 	strike 	abrogates
that 	duty.
I 	am 	not 	persuaded 	that 	Moreno Valley 	stands 	for 	the
proposition 	that 	any 	unfair 	practice 	committed 	after 	impasse
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has 	been 	declared 	can 	only be 	a 	violation 	of 	the 	duty 	to
participate 	in 	impasse 	procedures. 	The 	decision 	merely holds
that 	an 	employer's 	unilateral 	change 	is 	a 	violation 	of 	section
3543.5(e). 	But 	the 	decision 	simply did not 	address 	the 	duty 	to
bargain 	in good 	faith 	when 	an 	unlawful 	strike 	occurs.2 Thus,
I 	find 	Moreno Valley 	distinguishable, 	and 	therefore 	not
controlling 	here.
Instead, 	I 	believe 	the 	record 	supports 	a 	finding that 	a
partial 	work 	stoppage 	prior 	to 	the 	exhaustion 	of 	impasse
procedures 	violates 	the 	duty 	to 	negotiate 	in 	good 	faith 	and 	the
duty 	to 	participate 	in 	impasse 	procedures 	because 	the 	presence
2 The 	court 	did 	state 	that 	the 	refusal 	to 	participate 	in
the 	meeting 	and 	negotiating 	process 	must 	be 	a 	separate
violation 	from 	the 	refusal 	to 	participate 	in 	impasse
procedures, 	otherwise sections 	3543.5(e) 	and 3543.6(d) 	would be
superfluous. 	By 	the 	same 	token, 	I 	would find 	that 	this quality
of 	separateness 	also means 	that 	the 	duty 	to 	bargain 	is 	not
always 	subsumed 	by 	the 	duty to 	participate 	in 	impasse
procedures.
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of 	strikers 	in 	this 	setting 	skews 	the 	negotiations 	process,
interferes with 	the 	very act 	of meeting 	together, 	and 	exerts
economic 	pressure 	on 	the 	employer 	while 	shielding 	the 	employees
from any 	real 	hardship because 	they 	continue 	to 	draw salaries.
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