San Francisco Unified School District (PERB I010E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT RELATIONS 	BOARD
SAN FRANCISCO UNIFIED SCHOOL DISTRICT,
Charging Party, Petitioner,
v.
SAN FRANCISCO FEDERATION OF TEACHERS,
LOCAL 61, AFL-CIO,
Respondent.
)
)
)
)
)
)
)
)
)
)
Case No. SF-CO-98-78/79
PERB Order No. 	IR-10
Administrative Appeal
(Request for Injunctive
Relief and Request for
Contempt)
October 	29, 	1979
Appearances; 	Keith V. Breon, Attorney (Breon, Galgani and Godino) for
San Francisco Unified School District; Stewart Weinberg, Attorney
(Van Bourg, Allen, Weinberg and Roger) for San Francisco Federation of
Teachers, Local 61, AFL-CIO.
Before Gluck, Chairperson; Gonzales and Moore, Members.
I. 	INJUNCTIVE RELIEF
DECISION
This decision memorializes the Board's decision of September 21, 1979.
On September 10, 1979, the San Francisco Federation of Teachers, Local 61,
AFL-CIO (hereafter Federation), the exclusive representative of the certificated
employees, voted to engage in and sometime thereafter commenced a strike against the
San Francisco Unified School District (hereafter District). 	Classroom teachers
were scheduled to report to work for teacher preparation duties on September 11th.
On that date, District Superintendent Robert Alioto announced that regular school
would not open as previously scheduled on September 12th. 	Thereafter, the
District announced that its elementary schools would open on September 20th.

On September 19th, the District filed an unfair practice charge against
the Union alleging that the continuing work stoppage violated sections 3543.6(c)
and 3543.6(d) 	of the Educational Employment Relations Act 	(hereafter EERA or
Act) 	in that the Federation had failed to negotiate in good faith and
had failed to participate in good faith in the impasse procedures as contemplated
by the Act. 	The District requested that the Board seek injunctive relief.
Following an investigation conducted by the general counsel pursuant to
title 8, California Administrative Code section 38110, the Board determined
that grounds existed for seeking injunctive relief against the work stoppage
in effect. 	These determinations were made upon the following facts emerging
from the investigation:
1. 	Negotiations between the parties to develop a new contract commenced
on July 23, 1979.
2. 	The District laid off 1,200 certificated employees from a unit of
approximately 3,800 regular teachers. 	In addition, the District
proposed no new salary increase.
3. 	On September 10, the Federation voted to strike and notified the
District it was on strike.
4. 	The opening of the District's regular schools was postponed as
a result of the Federation's action and all District schools were
in fact not opened until October 3.
5. 	As of September 10, 1979, neither party had requested a declaration
of impasse pursuant to section 35482 of the EERA.
1The Educational Employment Relations Act is codified at Government Code
section 3540 et seq. 	All future references to statute herein are to the
Government Code unless otherwise stated.
2Section 3548 of the Act 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 than in reconciling their

6. 	On September 13, San Francisco Mayor Diane Feinstein began meeting
with the parties to attempt settlement. 	On September 21, the District
declared that the parties were at impasse. 	Following an investigation,
impasse was declared by the San Francisco regional director on
September 21 and, pursuant to section 3548, a mediator from the
State Conciliation and Mediation Service was appointed on the
same date.
7. 	Unfair practice charges were filed by the Federation alleging that the
District had refused to negotiate in good faith in violation of
section 3543.5 (c) of the Act. 	These charges are appropriately remedied
through normal Board processes in this instance.
The Board considers the statutory enactment of impasse procedures in the
EERA as strong evidence of a legislative intent to head off work stoppages
prior to the completion of those procedures. 	This policy has been incorporated
(cont.)
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.
3Val Verde School District. 	PERB Order No. IR-9 (9/18/79).

A
into title 8, California Administrative Code section 38100. 	The Board's
interpretation of statutory intent is consonant with the California Supreme
Court decision in San Diego Teachers Association v. Superior Court 	(1979)
24 Cal.3d 1, wherein the court held:
Since they 	(impasse procedures) 	assume deferment
of a strike at least until their completion, strikes
before then can properly be found to be a refusal to
participate in the impasse procedures in good faith
and thus an unfair practice under section 3543.6, sub-
division (d). 	p. 8-9.
In this case, 	the investigation reveals that neither party had declared
impasse or had engaged in even the first step of the impasse procedures prior
to the initiation of the instant action by the Federation or the District's
filing of the unfair practice charge. 	The parties had participated in informal
settlement sessions with the San Francisco mayor in an effort to resolve their
dispute. 	However, this action was not a substitute for the impasse procedures
specified by the Act.
4 PERB's rule 38100 provides:
(a) 	Upon the filing of a request, the general counsel shall
conduct an investigation proceeding into the circumstances of
the alleged lockout or work stoppage. 	To expedite the investi-
gation, 	the executive director shall make available to the
general counsel the services of the regional director and the
regional director's staff.
(b) 	The regional director shall make a reasonable effort to
notify the parties that an investigative proceeding will be
conducted, indicating the time and place thereof. 	The
proceeding will be scheduled at such time as provides the
parties with reasonable opportunity to appear. 	Failure of
a respondent to appear shall not preclude the board agent from
conducting the investigative proceeding..
(c) 	The board agent may call and question such persons as
the agent deems necessary to effectuate the investigation.
(d) 	The board agent shall observe the time limitations contained
in section 38115. 	A report shall be submitted to the general
counsel at the conclusion of the investigative proceeding.
4

Based on the evidence adduced by the general counsel and pursuant
to the policy expressed in the Act which contemplates that the parties will
utilize the statutory impasse procedures 	prior to work stoppages, the Board
orders the general counsel to seek the injunctive relief requested by the
District in order to foster the collective negotiations process and to
protect the public interest in maintaining the continuity and quality of
educational services. 	In issuing the following order which conditions
seeking an injunction on the employer's acceptance of a PERB-appointed
mediator, the Board relies on the inherent authority vested by section 3548
and its power to enforce title 8, California Administrative Code sections
36020 and 36070.
ORDER
Based upon the facts elicited in the investigation conducted by the
general counsel upon a request for injunctive relief filed by the San Francisco
Unified School District in unfair practice case number SF-CO-98, the Public
Employment Relations Board orders the general counsel to seek injunctive relief
against a work stoppage called, engaged in, and encouraged by the San Francisco
Federation of Teachers, Local 61, AFL-CIO.
The Board further orders that such relief be conditioned upon the District
accepting the services of a mediator appointed by PERB and meeting with the
mediator at all duly noticed meetings.
Such injunctive relief shall include the seeking of a temporary restraining
order and such preliminary and permanent relief necessary to preserve the Board's
processes in determining the rights of the parties on the merits of the
underlying unfair practice charges.

II. 	CONTEMPT
DECISION
Pursuant to the decision and order on injunctive relief made by the
Board on September 21, 1979, the general counsel sought injunctive relief in
the San Francisco Superior Court on the same date.
On September 24, 1979, the court issued a temporary restraining order
enjoining acts encouraging or continuing the strike. 	On September 24 and 25,
the order was personally served on the Federation and its officers. 	Despite
the court order, employees did not return to work and activities by the
Federation and its agents continued to encourage and support the continuation
of the strike.
On October 2, 1979, the District formally requested the Board to file
a declaration in court seeking contempt sanctions against the Federation and
any of its officers where evidence provided by the District was sufficient
to demonstrate that the court order was being violated. 	On October 3,
the court issued an Order To Show Cause In Re Contempt based upon six
specific incidents of contempt alleged by the general counsel to have been
conducted between September 24 and October 2.
The court issued a preliminary injunction against continuance of the
strike on October 5, 1979.
During the period of October 5 to October 23, the general counsel
continued to accumulate further evidence of activities by the Federation
and its agents in violation of the preliminary injunction based upon evidence
presented by the District. 	Such evidence was to be filed with the court
prior to the contempt hearing scheduled for October 30, 1979.

The parties reached agreement for a two-year employment contract on
October 23, 1979, and the Federation voted to end the strike. 	Employees
returned to work on October 24th.
On October 25, 1979, both the Federation and the District withdrew all
unfair practice charges relating to collective negotiations and strike
activities which preceded execution of an agreement. 	In addition, 	the
District formally requested the Board to refrain from pursuing any contempt
proceedings pending before the court and further requested that the Board
return any evidence presented to the general counsel in support of the contempt
incidents which has not yet been filed in court.
This case presents the first instance where the board has been requested to
and has pursued contempt sanctions for violation of a court order requested by
the agency pursuant to its responsibilities under the Educational Employment
Relations Act.
PERB's responsibility for maintaining labor relations stability in the
public schools was addressed by the Supreme Court in San Diego Teachers
Association v. Superior Court, supra, when it said:
. . 	. The public interest is to minimize
interruptions of educational services. 	Yet did
not an identical concern underlay enactment of the
EERA? 	. 	. 	. PERB's responsibility for administering
the EERA requires that it use its power to seek
judicial relief in ways that will further the public
interest in maintaining the continuity and quality
of educational services, 	(p. 11) . . . Its (PERB)
mission to foster constructive employment relations
(sec. 3540) surely includes the longrange minimization
of work stoppages, 	(p. 13)

However, the Supreme Court further stated:
It does not follow from the disruption attendant in
a teachers strike that immediate injunctive relief
and subsequent punishment for contempt are typically the
most effective means of minimizing the number of teaching
days lost from work stoppages. 	As observed in City and
County of San Francisco v. Cooper, supra, 13 Cal.3d 898, 917,
the question of appropriate sanctions for illegal strike
activity is complex. 	Harsh, automatic sanctions often do not
prevent strikes and are counterproductive. 	EERB's responsi-
bility for administering the EERA requires that it use its
power to seek judicial relief in ways that will further the
public interest in maintaining the continuity and quality
of educational services.
In order to maintain and protect the integrity of its processes, 	the Board
must insure that its orders and the resultant interim relief directed by the
court are complied with.
The Board acknowledges that post settlement punishment may not promote
harmonious employer-employee relations, especially where the parties have made
a decision to put their dispute behind them. 	In the Board's view, a
delicate balance between these competing interests must be reached in order
for the Board to function effectively and for harmonious labor relations to
resume in the San Francisco public schools.
In this case, 	the Board has decided that it should not withdraw the
contempt declaration filed and served against the Federation notwithstanding
the amnesty agreement executed by the parties. 	At the time the District
requested that contempt be sought, 	the Board determined that it was incumbent
on the District to provide evidence sufficient to prove violation of the
court's orders against the Federation. 	The District has provided evidence
which was incorporated in the contempt declaration filed with the court on
October 3, 1979. 	Based on that evidence, the general counsel is therefore
directed to pursue the contempt declaration consistent with this order. 	As

to the evidence presented by the District subsequent to that date, the Board
has determined, in order to further the parties' desire to. re-establish a
cooperative relationship, to forego seeking further contempt citations.
The Board is informed, that, the San Francisco Federation of Teachers,
Local 61, AFL-CIO, will not contest the six incidents of contempt, alleged in
the October 3 declaration in the spirit of restoring harmonious labor
relations between the parties as soon as possible. 	The Board accepts the
Federation's willingness to plead nolo contendere.
ORDER
Based, upon a request to seek contempt charges against the San Francisco
Federation of Teachers,.. Local 61, AFL-CIO, and evidence presented to the
court on October 3, 1979, the Public Employment Relations Board orders the
general counsel to seek sanctions by the court: on the contempt declaration
as; filed on that date. 	The Board further accepts, subject to approval by
the court, the no contest plea by the Federation to the alleged contempt
in any effort to expedite the continuance of a quality and harmonious
educational program in the San Francisco public schools.
Barbara D. Moore, Member
Harry Gluck, Chairperson
Dated: 	O c t o b e r 29, 	1979

Raymond J. 	Gonzales, Member, 	concurring:
I 	agree with 	the 	decision 	that 	PERB 	should have 	sought
injunctive 	relief against 	the 	strike, 	that PERB has 	sought
enforcement 	of 	the 	injunction issued 	in 	its 	behalf, 	and 	in 	the
disposition 	of 	our own 	contempt 	proceedings 	against 	the
Federation. 	However, 	I 	disagree with the majority decision
to 	condition our 	seeking of 	the 	injunction 	against 	the 	strike
on 	the District's 	acceptance 	of a PERB appointed mediator. 	I
also 	believe 	that 	PERB 	should 	take 	the 	initiative 	to 	enforce 	an
injunction 	granted 	in 	its 	own behalf, 	rather 	than acting only at
the 	request 	of 	the 	charging party 	and 	only when 	the 	charging
party will 	furnish 	the 	evidence necessary 	to 	the 	enforcement
proceeding.
Initially, 	I 	do not believe PERB has 	authority in the
circumstances 	of 	this 	case 	to make 	the 	injunction conditional
on 	the District 	accepting 	a PERB appointed mediator. 	The majority
states 	"The 	parties 	had 	participated 	in 	informal 	settlement
sessions 	with 	the 	San 	Francisco mayor 	in 	an 	effort 	to 	resolve
their 	dispute. 	However, 	this 	action was not 	a substitute 	for the
impasse procedures 	specified by 	the Act." 	But 	section 	3548 	of
the 	EERA 	does 	specifically provide 	for 	their 	own mediation
procedure and states, 	in prohibitory language, 	that PERB must
not 	interfere 	to 	impose 	its 	own mediation procedure 	on the
parties. 	Section 3548 	states 	in full:
10

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
(Emphasis is added.)
While 	the 	prohibition 	against 	PERB's 	intervention may be
relaxed where 	the parties' 	use 	of 	their 	own mediator would be
"inconsistent with the policies" 	of the EERA there 	is no
finding or 	other 	explanation by 	the majority of why 	it must not
observe 	this 	statutory prohibition. 	The majority 	states: 	"In
issuing 	the 	following 	order which 	conditions 	seeking 	an 	injunction
on 	the 	employer's 	acceptance 	of a PERB-appointed mediator, 	the
Board relies 	on 	the 	inherent 	authority vested by 	section 	3548
and 	its 	power 	to 	enforce title 	8, 	California Administrative 	Code
sections 	36020 and 36070. "
11

I 	feel 	that 	for 	the majority 	to 	disregard 	such 	a 	statutory
prohibition on the 	basis 	of 	the 	Board's 	"inherent 	authority"
alone, 	is 	a cavalier disregard of the obvious 	legislative 	intent
to allow the parties 	to 	choose 	their own mediator. 	The 	fact 	that
the majority 	does 	not bother 	to 	provide 	any 	explanation
whatsoever as 	to why the parties' use of their own mediator 	is
inconsistent with 	the 	policies 	of EERA only underscores 	the 	fact
that there was, 	in fact, 	no good reason.
In my view, 	there 	is no 	question but 	that 	an 	injunction was
warranted 	in this 	case. 	It 	is 	clear 	that 	the Federation 	struck
the 	District 	and had not 	completed 	the 	statutory 	impasse
procedures which were designed to 	head 	off 	strikes. 	Yet 	apparently
the majority would not 	have 	sought 	the 	injunction unless 	the
District 	acceeded 	to 	the majority's 	condition, 	even 	though 	the
District 	had 	a 	statutory right 	to 	not 	accept 	a PERB 	appointed
mediator. 	I 	continue 	to 	be 	disturbed by the 	continuing willingness
of 	the majority 	to 	sacrifice 	the 	statutory rights 	of parties
for 	the 	intriguing 	injunction 	conditions 	it 	concocts. 	This 	case
presents 	yet 	another 	example 	of 	the majority's 	using 	its 	"exclusive
initial 	jurisdiction" 	to 	seek 	injunctive relief 	in 	strike
situations 	to 	involve 	itself unreasonably 	in 	the relationship
between the parties.
I 	continue 	to 	believe 	that 	the board 	should not make 	its
injunctions 	against 	a party which 	is 	likely 	in violation of 	the
good 	faith 	impasse 	or negotiations 	requirements 	of 	the EERA
12

conditional 	on 	the requesting party doing 	something. 	As 	I 	stated
in Val Verde School District 	(7/18/79) 	PERB Order No. 	IR-9:
When 	injunctive 	relief 	against 	a work 	stoppage
is 	conditioned on the employer's 	conduct, 	the
implication is 	that 	strikes 	by public 	school
employees 	may be 	legitimized 	by 	such 	employer
conduct. 	I disagree.
This 	is 	the 	first 	case 	in which PERB has 	found 	it necessary
to 	seek 	enforcement 	of 	its 	injunction. 	The majority's opinion
seems 	to 	imply that PERB's 	role 	in enforcement 	is 	to 	be 	somewhat
passive, 	dependent 	to 	a 	large 	extent on 	the district's willingness
to 	press 	charges.
I disagree with this view of PERB's 	role. 	I believe 	that
where PERB has 	decided 	to 	seek an 	injunction against 	a 	strike 	or
lockout 	before 	completion of 	impasse procedures, 	PERB 	should 	seek
enforcement 	of 	its 	injunction 	if and as 	soon as 	it 	appears 	that
the 	injunction 	is 	being violated. 	I believe this 	entails PERB's
taking action 	irrespective 	of 	a request 	to 	enforce by 	the party
requesting us 	to 	seek the 	injunction and 	irrespective 	of 	the
charging party's 	willingness 	to 	investigate 	or 	gather 	evidence
necessary 	for 	enforcement 	in our 	behalf.
When the PERB 	decides 	to 	seek such an 	injunction, 	its 	role
becomes 	independent 	of 	that 	of 	the 	employer 	or 	employee
organization, 	and the interest 	it represents 	is 	that of the
public. 	Therefore, 	it 	is PERB and not 	the parties which 	should
control 	the injunction proceedings, 	including enforcement, 	if the
public 	interest 	so requires.
13

Enforcement 	of 	the 	injunction 	should not 	be 	dependent 	on
whether 	the 	charging party requests 	enforcement 	or whether 	the
charging party will 	gather 	sufficient 	evidence 	to 	support
enforcement 	at 	a trial, 	for 	to do 	so would leave 	it 	to them,
and not PERB, 	to 	decide whether 	and how the public 	interest 	is
to be vindicated. 	Obviously, 	even giving responsibility to 	an
employer 	or 	employee organization 	for 	developing 	evidence 	to
support 	enforcement 	is 	to 	allow them to 	control 	enforcement;
no 	one will 	vigorously 	develop 	evidence 	in 	support 	of 	a 	legal
action 	to which 	they are 	opposed.
The purpose 	of our 	seeking 	an 	injunction 	is 	to 	promote
the 	public 	interest 	by protecting 	the 	integrity of 	the 	EERA
impasse procedures 	and PERB's 	remedial powers. 	By 	seeking
the 	injunction, 	in this case, 	the public 	interest is 	served.
By enforcing that 	injunction, 	the public 	interest 	is vindicated.
The valuable 	purpose 	of 	the 	injunction 	is 	diminished when
fettered 	by meddlesome 	conditions 	on 	its 	granting 	and 	enforcement
Raymond 	J. 	GONZALES, 	MEMBER
14