Eureka City Schools/Eureka High School District (PERB I014EA)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
EUREKA 	TEACHERS 	ASSOCIATION,
Charging 	Party,
v.
EUREKA CITY 	SCHOOLS/EUREKA
HIGH 	SCHOOL 	DISTRICT,
Respondents.
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) 	Case 	Nos. 	SF-CE-445, 	451
PERB 	Order 	No. 	IR-14
May 	29, 	1980
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_____________ )
~Ee~arances: 	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) .1 	The 	Association 	requested 	that 	the 	Public 	Employment
Relations 	Board 	(hereafter 	PERB 	or 	Board) 	seek 	injunctive
relief 	to 	restrain 	the 	District 	from 	making 	public 	a
-·---------
l 1
I'he 	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
2

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
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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.
4

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, 	~~~,
3543.l(a) 	and 	(b) ,2 	3543.3,3 	and 	3543.5, 	supr~, 	of
2section 	3543.l(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 	employero 	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.
3section 	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
5

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
4on 	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
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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
5wilkins 	v. 	Oken 	(1958) 	157 	Cal.App.2d 	603; 	west 	v. 	Lind
(1960) 	186 	Cal.App.2d 	563.
·6weingard 	v. 	Atlantic 	Sa~~ngs 	and 	Loan 	~ssn.....!.. 	(1970) 	1
Cal.3d 	806.
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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
8

policy, 	terminated. 	These 	aspects 	of 	the 	policy 	appear 	on
their 	face 	to 	conflict 	with 	existing 	provisions 	of 	the
agreement, 7 namely 	Article 	10 	dealing 	with 	leaves8 and
?Article 	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.
8HEALTH 	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~~ be
required.
• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 0 • • • • • • • • • • • • •
PERSONAL 	LEAVE
For 	purposes 	of 	attending 	a 	funeral, 	wedding 	or 	graduation
of 	a 	close 	friend or 	organizational 	business, 	teachers~~
make 	advance 	requests 	for 	a 	personal 	leave.
PERSONAL 	NECESSITY 	LEAVE
Six~~ 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.
9

Article 	11 	which 	sets 	forth 	responsibilities 	relating 	to
membership 	dues 	deductions.9
(2} 	A teacher 	shall 	~ake 	his 	reguest 	in 	advance 	ex~t 	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.
e O O e e • 8 e e O O • e O e e e O e O e 9 0 0 e 8 e 9 O O e e e e e O e O O O O O O O O O O e O e O O O O O O O e O O
SICK 	LEAVE
Every 	teacher 	shall 	be 	entitled 	to 	12 	days 	of 	paid 	sick
leave 	annually.
C O O O O O O O O O O O O O O O O O O O e O O e O O O O O O O O O O e O O O O O O O O $ O O O O O O O O O e e O o e O e
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)
9The 	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
(pchwarts 	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.S(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
____, __ _
lOsimilarly, 	the 	Board 	itself 	has 	directed 	the 	general
counsel 	not 	to 	seek 	relief 	enjoining 	a 	mere 	threat 	of 	a 	work
stoppage 	(Chico USD 	(1979), 	S-C0-37).
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
relief 	pursuant 	to 	section 	3541.3(j) 	in 	these 	cases.
By: 	""'"fiarbara D. 	Moore, 	Member 	""Raymoijd 	J. 	Goiji"alea7 Meinb'er
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.l 	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
lcontrary·to 	the 	implication 	of 	the 	majority 	(~nt~, 	p. 	3)
this 	Board 	did 	not 	consider 	the 	prior 	Assocation 	requests 	for
injunctive 	relief 	regarding 	the 	factfinder's 	report 	until 	the
request 	at 	issue 	here 	was 	brought 	to 	the 	Board's 	atten-£Ion 	by
its 	generar-c-6unsel 	a:--few weeks 	later, 	when 	the 	strike was
already 	underway.
2The 	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

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
~y.
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
As 	demonstrated 	by 	the 	general 	counsel's 	investigation,
this 	resolution 	was 	first 	adopted 	in 	1978 	in 	connection 	with 	a
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 WITHOU'I' 	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 	S~~Rieg_Q
Teachers 	Association 	v. 	~~erior 	Court 	(1979} 	24 	Cal.3d 	1,
giving 	PERB 	exclusive 	initial 	jurisidction 	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.
3The 	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
4The 	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. 	~~arto 	Unified 	S~hool 	D~~tr~ct,
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. 	~~te, 	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.S(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 Die92.
T~~ers_Ass~~ v. 	sueerior 	Cou~i, 	su:e!l!, 	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 	negotations 	and 	mediation 	on 	the 	Assocition
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 	Ci1=.Y__~~hools 	(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 	(~nte, 	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.
22