PERB Order No. I011E•Modesto City Schools (PERB I011E)
Texto completo
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 -3-
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. ) ) ) ) ) ) ) ) ) ) ) ~) ) ) ) ) ) ) ) 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
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