Sweetwater Union High School District (PERB I058E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SWEETWATER UNION HIGH SCHOOL
DISTRICT,
Charging Party,
v.
SWEETWATER EDUCATION ASSOCIATION,
CTN/NEA,
Respondent.
Case No. LA-C0-1612-E
PERB Order No. IR-58
August 20, 2014
Appearances: Dannis, Woliver & Kelley by Jonathan A. Pearl, Attorney, for
Sweetwater Union High School District; California Teachers Association by
Brenda Sutton-Wills, Attorney, for Sweetwater Education Association, CTA/NEA.
Before Martinez, Chair; Huguenin, Winslow and Banks Members.
DECISION
WINSLOW, Member: This case came before the Public Employment Relations Board
(PERB or Board) on a requ.est for injunctive relief filed by the Sweetwater Union High School
District (District) on March 17, 2014. On the same day, the District filed an unfair practice
charge against the Sweetwater Education Association, CTN/NEA (Association) alleging that it
violated the Educational Employment Relations Act (EERA)1 by threatening to strike and
engaging in preparations for a strike prior to the exhaustion of statutory impasse procedures.
On March 26, 2014, the Board through the Office of the General Counsel denied
the District's request for injunctive relief. We explain our reasons for that denial in this
decision.
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

FACTS
As an initial matter, we note that there has been no evidentiary hearing in this case.
The facts on which we rely are those alleged by the District and contained in sworn
declarations submitted by the District, the exhibits attached thereto, and other facts obtained by
the Office of the General Counsel during its investigation of the District's request. As with all
allegations contained in an unfair practice charge, at this stage of case processing, we presume
the allegations in the charge to be true. (San Juan Unified School District (1977) EERB
Decision No. 12.)2 Should this matter go to a hearing, these alleged facts will be subject to
verification or contradiction.
The parties have been negotiating for a successor collective bargaining agreement
(CBA) since May 2013. In July 2013, the District made a proposal to cap its contribution to
employee health benefits at 68 percent of the cost of those benefits, effective January 1, 2014.
The Association understood this proposal to mean that the 68 percent would be pegged to the
cost of the then-existing basic family plan available through the California Schools Voluntary
Employees Benefits Association (VEBA). 3
In November 2013, the Association directed its members to "work to rule." Members
were engaged in that activity at the time the District filed its request for injunctive relief.
The Association filed a request for impasse determination with PERB on December 9,
2013. PERB determined the parties were at impasse on December 23, 2013, and appointed a
mediator.
2 Prior to January 1978, PERB was known as the Educational Employment
Relations Board or EERB.
3 VEBA is a non-profit entity that administers healthcare benefits for District
employees.
2

On January 1, 2014, the District allegedly unilaterally implemented a proposal that it
had made in October 2013, which capped its contributions to employee healthcare to "68% of
the cost of the Kaiser 10/10 [composite], Safeguard, Vision and Life." As a result of this
implementation, the employer contribution for employee health benefits decreased by
approximately $300 per month per employee. The Association filed an unfair practice charge
on January 28, 2014 (Case No. LA-CE-5893-E) alleging that this implementation of the new
contribution rate violated the duty to bargain in good faith.4
Meanwhile, the parties engaged in mediation. Sessions with the mediator were held on
February 12 and 25, March 6 and 11, and April 5, 2014. The District asserts that it participated
in these sessions in good faith and that progress was made during mediation in narrowing the
differences between the parties. As of the time the District filed its request for injunctive relief
and unfair practice charge against the Association, the parties had not reached agreement on a
CBA and continued to participate in mediation. The District does not assert that the
Association failed to participate in good faith in mediation by engaging in any conduct, other
than the strike preparation described below.
Strike Preparation
On March 17, 2014, the District filed unfair practice charge, Case No. LA-C0-1612-E,
alleging that the Association has been preparing for a "pre-impasse" strike by, among other
things, having its representative council vote on February 25, 2014, to seek a vote by members
to authorize an unfair practice strike authorization vote, urging members to picket and
participate in a rally on February 28, 2014, distributing publications informing members that the
4 The District disputes that the new contribution rate represents a unilateral
change, asserting that the rate implemented in January 2014, was in existence for many
years and that the District's 2012 and 2013 contributions were based on this rate. This
is a dispute we cannot resolve at this stage of the proceedings.
3

representative council approved the strike authorization vote and reminding Association
representatives to organize their sites in preparation for the vote.
The Association established a picket line outside the District's offices on February 28,
2014, and unit members displayed signs with messages such as, "Sweetwater School District
breaks teachers' contract," and "I don't want to strike ... but I will."5 The Association also
posted on its social media sites discussions of the rationale supporting an unfair practice strike
and the need to have an authorization vote prior to striking. Another document on the
Association's web page in a question-and-answer format asserted, "We have already established
that negotiations are meaningless if we allow ·the SUHSD [the District] to disregard our current
contract ... " and "If we wait, the District violates our contract, damaging 100% of our
members, with no consequence. If we wait, the District retains a position of power. If we act,
SEA [the Association] takes control."
On March 7, 2014, the Association held a general membership meeting to discuss the
strike vote. The following day, the Association posted on its social media sites the dates for the
strike vote-March 13 and 14, 2014. Another question-and-answer posting described what the
District had to do to avoid a strike: "immediately agree to contribute $12,068 (68% of the
Kaiser 10/10/Safeguard family plan) retroactive to 1/1/14 to all employees' health-care
premiums." The same posting informed members that the Association was only obligated to
give 24-48 hours "lead time" before a strike begins.
Association President Roberto Rodriguez (Rodriguez) further explained to Association
members via social media on March 11, 2014, that the Association was asking them to vote on
two strike options. The first option was the "Unfair Labor Practice (ULP) strike" over the
5 We presume this was an informational picket, as the District did not allege and
presented no facts showing that the individuals on the picket line urged anyone to
refrain from crossing the line or otherwise cease conducting business with the District.
4

"contract violation of the District's imposed healthcare contribution. This type of strike would
address that specific issue." (District Petition for Injunctive Relief, p. 8.) The second option on
the ballot was a post-factfinding strike. Rodriguez explained that a "Yes" vote on the latter
issue would allow the Association's board of directors to call a strike if the District imposes its
"last, best, and final offer," and would "address all issues (including healthcare) currently being
negotiated." (Op Cit., p. 8.) The Association urged a "Yes" vote on both options.
The strike vote was taken and, according to press reports, 1,443 of the Association's
1,800 members voted, with over 90 percent voting to authorize the Association to call a strike.6
Three days later, the District filed this request for injunctive relief and accompanying
unfair practice charge.
POSITIONS OF THE PARTIES
Position of the District
The District alleges that the Association violated EERA section 3543.6(c) and (d) by
preparing for and threatening to strike prior to the exhaustion of impasse procedures. It cites to
the well-settled law that presumes that economic strikes undertaken before the exhaustion of
EERA's impasse procedures presumptively violate the Association's duty to negotiate in good
faith and/or to participate in the impasse procedures in good faith. (San Diego Teachers Assn.
v. Superior Court (1979) 24 Cal.3d 1, 8 (San Diego); Santa Maria Joint Union High School
District (1989) PERB Order No. IR-53 (Santa Maria); Sacramento City Unified School District
(1987) PERB Order No. IR-49 (Sacramento).)
6 PERB' s investigation does not reveal the tally of votes on each of the two questions
presented, i.e., whether to engage in an unfair practice strike or to authorize the board of
directors to call a post-factfinding strike if the District imposed its last, best and final offer
(LBFO).
5

The District also relies on South Bay Unified School District (1990) PERB Decision
No. 815 (South Bay), which held that a strike threat and strike preparation activities undertaken
before impasse resolution procedures were exhausted could constitute sufficient facts to state a
prima facie violation of EERA section 3543.6(d).7 The District also argues that Regents of the
University of California (2010) PERB Decision No. 2094-H (Regents) establishes that a union
commits an unfair pnictice by preparing for and threatening a pre-impasse strike that was not
provoked by any employer unfair practices. (Regents, pp. 33-34.)
According to the District, PERB is still investigating the Association's unfair practice
charge that the Association claims has provoked its call for a strike, and has thus not determined
whether a prima facie case has been stated by the Association's charge. Because the
Association cannot prove that the District has committed an unfair practice, its current strike
threats and preparations are in furtherance of an unlawful strike, according to the District.
The District also argues that the Association cannot demonstrate that its strike threat was
provoked by the District's alleged unfair practice and that the strike threat is a last resort,
because the parties continued to engage in mediation. Threatening to and preparing for a strike
while the parties are in mediation constitute unlawful pressure tactics to obtain District
concessions at the bargaining table and therefore violate the duty to bargain in good faith,
according to the District.
Injunctive relief is just and proper according to the District, because PERB is without
authority to order the payment of damages should the Association's conduct ultimately be found
to have violated EERA. Absent injunctive relief, the Association will "likely have
accomplished its unlawful objective-to place pressure on the District during the negotiation
7 EERA section 3543.6(d) prohibits an employee organization from refusing to
participate in good faith in impasse procedures.
6

process to concede to SEA's bargaining demands." (District's Petition for Injunctive Relief,
p. 21.)
Finally, the District claims that students will suffer "considerable harm" if the
Association is not enjoined from striking before the completion of impasse procedures because
key student examinations are scheduled to be administered starting on March 17, 2014, and
continuing through the end of the school year. These exams include the High School Exit exam
(CAHSEE), the Smarter Balanced Assessment Consortium (SBAC) exam, Advanced Placement
(AP) exams, several other state standardized tests, and final exams, the interference with which
would affect students' final grades. The District alleges that any strike by teachers before the
end of the school year would be "exceptionally upsetting and unjust to students." (Petition for
Injunctive Relief, p. 11.)
Position of the Association
The Association claims there is no reasonable cause to believe its conduct amounts to an
unfair practice because it has not prepared for or threatened to conduct a pre-impasse strike and
never contemplated conducting a pre-impasse economic strike. It characterizes its
communications to its members as mere polling of its members to ascertain support for a
possible strike, and denies that it has threatened the District with a strike.
DISCUSSION
On March 26, 2014, the Board denied the District's request for injunctive relief. We
take this opportunity to review our previous cases that dealt with threats or preparations for a
presumed pre-impasse strike, in particular South Bay, supra, PERB Decision No. 815 and
Regents, supra, PERB Decision No. 2094-H.
In order to seek injunctive relief from the courts, PERB must be satisfied that two
criteria are met: 	(1) there is "reasonable cause" to believe an unfair practice has been
7

committed; and (2) injunctive relief must be "just and proper." (Public Employment Relations
Board v. Modesto City Schools District (1982) 136 Cal.App.3d 881, 895-896 (Modesto).)
"Reasonable cause" is a higher standard than merely stating a prima facie violation, but PERB
does not have to establish that its theory will ultimately prevail, only that its theory is not
"insubstantial or frivolous." (Modesto, p. 897 .) As the Board noted in Fremont Unified School
District (1990) PERB Order No. IR-54, p. 8 (Fremont): 	"In order to meet the reasonable cause
standard, the Board must determine that it is probable that a violation of the Act has been
committed." (Emphasis in original.)
With that standard in mind, we turn to the issue presented by this request for injunctive
relief: whether the Association's strike preparation activities, including taking a strike
authorization vote of its membership, constitute reasonable cause to believe the Association
violated its duty to participate in EERA's impasse procedures in good faith.
The District alleges and the Office of the General Counsel's investigation established
that the Association was engaged in activities that could reasonably be construed as preparing
for a strike. These preparations were undertaken before the exhaustion of impasse procedures.
The parties dispute whether the potential pre-impasse strike would be in protest of the District's
unfair practices or would be an economic strike. The District denies that it has committed any
unfair practices, and therefore disputes that the Association could be legitimately preparing to
strike in response to any unfair practices.
For purposes of this decision, we need not resolve whether a strike prior to the
exhaustion of impasse procedures by the Association, if it occurs, would be lawful. That
question will likely be resolved in the Association's favor if the Association strikes before the
completion of impasse procedures and it is determined by this agency after an evidentiary
hearing that the District did in fact commit unfair practices and that such unfair practices
8

provoked the strike. Of course, any pre-impasse strike is undertaken at the union's peril. If
PERB ultimately determines that such a strike was not in response to an unfair practice, the
Association will likely be deemed to have violated EERA. (Regents, supra, PERB Decision
No. 2094-H.)
The question placed before us by this request for injunctive relief is whether the
Association's conduct as alleged and described by the District as strike preparations undertaken
before impasse procedures have been exhausted constitutes "reasonable cause" to believe that
an unfair practice has been committed. As we explain below, the Association's conduct does
not constitute reasonable cause to believe it has violated EERA by bargaining in bad faith or by
failing to participate in impasse procedures in good faith.
In San Diego, supra, 24 Cal.3d 1, the Court noted that EERA's impasse procedures were
intended to head off strikes. The Court stated: "Since they 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 [cit. omitted] an unfair practice under
section 3543.6, subdivision (d)." (San Diego, p. 8.) In cases decided by PERB subsequent to
San Diego, the Board has consistently held that there is a rebuttable presumption that strikes
conducted before the completion of impasse procedures are unfair practices. The presumption
can be rebutted by a showing that the strike was provoked by the employer's unfair practice,
which is a mixed question of law and fact. 	(Sacramento, supra, PERB Order No. IR-49;
Modesto City Schools/Modesto City Schools, et al. (1980) PERB Order No. IR-12; Santa Maria,
supra, PERB Order No. IR-53).
Construed together, these cases establish that pre-impasse strikes presumptively violate
EERA. It is not the speech attendant to informing unit members and the public of the
bargaining dispute, urging unit members to show solidarity and support for the union's
9

demands, informing unit members of the progress (or lack thereof) at the bargaining table,
publicizing the employer's alleged unfair practices, taking strike votes, or engaging in what the
District characterizes as strike preparation that is presumptively unlawful conduct. Rather, it is
the pre-impasse work stoppage that is presumptively unlawful. Except under the unique
circumstances in Regents, supra, PERB Decision No. 2094-H discussed below, PERB has not
sought to enjoin a threatened work stoppage on the basis that the strike preparations or threats to
strike have occurred before the exhaustion of impasse procedures. 8
In contrast, PERB has directed the Office of the General Counsel to seek an injunction
against pre-impasse strikes when it was shown that a work stoppage was in progress and that
the work stoppage had not been provoked by an employer's unfair practice. (Las Virgenes
Unified School District (1979) PERB Order No. IR-8 (Las Virgenes); Val Verde School District
(1979) PERB Order No. IR-9 (Val Verde); San Francisco Unified School District (1979) PERB
Order No. IR-10 (San Francisco); San Mateo City Schools (1985) PERB Order No. IR-48;
Sacramento, supra, PERB Order No. IR-49.)9
Unlike an actual work stoppage, preparing for a strike is more akin to speech protected
by EERA. ·PERB has long held that speech in the workplace that is related to the legitimate
8 PERB has sought to enjoin certain individuals from engaging in strikes before
those strikes occur upon a showing that those "necessary" employees' absence from the
job would create an imminent threat to health and safety. (County Sanitation Dist.
No. 2 v. Los Angeles County Employees' Assn. (1985) 38 Cal.3d 564 (County
Sanitation District).) However, the District makes no such claim in this case.
9 In its unfair practice charge, the District cites Santa Maria, supra, PERB Order
No. IR-53 and Sacramento, supra, PERB Order No. IR-49, for the proposition that
PERB has held that strikes "including engaging in strike preparations, before the
completion of statutory impasse resolution" creates a rebuttable presumption that the
union bargained in bad faith. 	However, these decisions do not mention strike
preparations. Santa Maria involved a one-day strike that occurred before the district
sought injunctive relief. Sacramento involved a work stoppage in progress when the
petition for injunctive relief was filed. 	There was no discussion in either of these cases
of any claimed unlawfulness of strike preparations.
10

concerns of employees is protected activity within the meaning ofEERA section 3543.
(Richmond Unified School District/Simi Valley Unified School District (1979) PERB Decision
No. 99 (Richmond/Simi); Konocti Unified School District (1982) PERB Decision No. 217
(Konocti); Rancho Santiago Community College District (1986) PERB Decision No. 602
(Rancho Santiago); Mt. San Antonio Community College District (1982) PERB Decision
No. 224 (Mt. San Antonio); East Whittier School District (2004) PERB Decision No. 1727 (East
Whittier).) As the Board explained in Richmond/Simi Valley, p. 15:
[E]ffective and non-disruptive organizational communications are
an important aspect of employee rights to "form, join, and
participate" in employee groups (section 3543), by serving as
necessary links between employees and their representatives.
Without adequate communications, these employee rights at the
workplace would be largely empty or subject to employer whim
and domination.
While Richmond/Simi Valley did not involve a threatened strike, the principle establishing the
protected nature of "non-disruptive organizational communications" is a useful starting point
for any analysis of a union's communications to bargaining unit members and to the employer
regarding matters relating to employer-employee relations, including preparing for a strike.
In rejecting the employer's claim that the union's strike threats were coercive in
Konocti, supra, PERB Decision No. 217, PERB observed, "Strike votes - like strike talk- are
commonplace in labor relations, particularly in the face of approaching deadlines. They cannot
be viewed as per se violations of the good-faith obligation." (Konocti, p. 12; emphasis in
original.) Konocti also noted that the mere fact that an employer claims to have been coerced
by the union's conduct is insufficient to support such a finding. 	(Id.)
East Whittier, supra, PERB Decision No. 1727 offers particular insight into the
importance of employee and union speech when the parties are engaged in contract
negotiations:
11

It is important to assure that employees can freely voice their
perspectives so that the parties can construct an agreement
everyone may support. It is also important to assure that
employers can ascertain the relative importance of their
employees' concerns at the workplace, so that they can properly
develop and weigh bargaining proposals during the process of
negotiations.
(East Whittier, pp.10-11.)
Although East Whittier, supra, PERB Decision No. 1727 concerned the right of
certificated employees to wear union buttons in the classroom, the observation quoted above
applies equally to communications by an employee organization in the heat of negotiations.
First, it is a fundamental right of the employee organization to communicate to its members
about the progress of negotiations and to urge members to support positions it takes at the table.
This is the essence of organizing. It is what unions do to exercise their power in the collective
bargaining arena. That an employer may claim that "strike talk" or a strike vote is coercive
ignores Konocti, supra, PERB Decision No. 217, and what East Whittier correctly suggests is
valuable information to the employer, information that can be obtained without illegal polling
of employees. How credible is the strike threat? Are the rank-and-file employees truly agitated
about the alleged unilateral change in the health benefits formula, or is the union raising a
chimera of outrage? It is in both parties' interest to know the outcome of any union-sponsored
strike vote.
More critically, the Association's strike preparations, e.g., conducting membership
meetings to urge a strike authorization vote, taking that vote, conducting informational picket
lines, explaining to members why they need to show the District that they support the
Association's bargaining demands, and publicizing the dispute to the public, are all protected by
EERA's guarantee of employees' right to participate in the activities of their employee
organization for the purpose of representation in employer-employee relations. (EERA, § 3543;
12

Rancho Santiago, supra, PERB Decision No. 602; Mt. San Antonio, supra, PERB Decision No.
224.) The same conduct falls within EERA's protection of employee organizations' right to
represent their members in employment relations. (EERA, § 3 543 .1 (a).) Such activity does not
lose its protection simply because it becomes effective, that is, when the employer claims to be
coerced or pressured into making concessions. Nor would we presume that an employer's pre-
impasse preparation for an expected strike, such as advertising for replacements, offering bonus
pay for substitute teachers, or contracting with temporary employment agencies, etc., would by
itself constitute an unfair practice simply because a union asserts that it was pressured into
making concessions when faced with the prospect of the employer's success in blunting the
effects of a strike. (Rio Hondo Community College District (1983) PERB Decision No. 292,
p. 10.)
In sum, we are unwilling to seek injunctive relief against conduct that is clearly
protected by EERA where there has been no work stoppage and where there is no evidence that
the Association lacked the genuine intent to reach agreement on the CBA. Here, as the District
admits, the parties continued to meet in mediation and make progress while the Association was
engaged in its organizing activities.
The precedents relied on by the District, South Bay, supra, PERB Decision No. 815 and
Regents, supra, PERB Decision No. 2094-H, provide at best ambiguous guidance. In
South Bay, the district alleged that the union took a strike vote while mediation was in progress
and before impasse procedures had been exhausted, and engaged in various other organizing
activities designed to publicize the parties' bargaining dispute both to unit members and to
parents. The union announced that the strike vote would take place, contingent on the parties
not reaching an agreement by a certain date. A few days before the vote was to take place, the
union delivered to the district's governing board a memorandum stating that the bargaining
13

team was prepared to meet with the district's team, "with or without a mediator, in an attempt to
resolve the impasse and avoid a strike." (South Bay, p. 4.) The day before the scheduled strike
authorization vote, the union announced that it had opened a strike headquarters. Fliers were
distributed to unit members urging a "Yes" vote, stating, "[t]he only way that this message
could be effective is if it was obvious to the school board that teachers are truly prepared to
strike." (Id. at p. 5.) The union also distributed packets to unit members delineating '"last day
of school', procedures" which advised teachers to lock their desks, take their lesson plans, grade
books and keys and urged them to tell prospective substitute teachers that they were
participating in strike-breaking activities.
The strike authorization vote in South Bay, supra, PERB Decision No. 815 was
postponed, and when it ultimately was taken, the employees voted by one vote not to strike.
Before the union announced the results of this vote, a tentative agreement had been reached
with the district. Nevertheless, the district alleged in its unfair practice charge that the strike
preparation activities were aimed at pressuring the district into making concessions at the
bargaining table and in fact, had coerced the district into making concessions. 10 There was no
claim by the union in South Bay that its strike preparation activities were undertaken in
response to any employer unfair practices. The charge was dismissed by the Office of the
General Counsel and the district appealed that decision to the Board itself.
The Board held in South Bay, supra, PERB Decision No. 815 that under the totality of
circumstances test, the union's strike threat and strike preparation activities stated a prima facie
violation of BERA section 3 543 .6(d). Although the decision noted that the allegations of the
10 Our review of PERB's case file in South Bay, supra, PERB Decision No. 815
reveals that the Office of the General Counsel issued a complaint after the Board's
decision and the matter was set for a formal hearing. The case settled on the eve of that
hearing, so there is no record available to ascertain whether the union also made
concessions after the strike vote failed. 	PERB may take administrative notice of its
own files. (San Ysidro School District (1997) PERB Decision No. 1198, p. 3.)
14

coercive effect of union's conduct were minimal, the Board majority, with very little analysis,
concluded that those allegations were sufficient to warrant the issuance of a complaint. The
underlying assumption in South Bay was that preparing for a strike and directly or indirectly
threatening to strike during impasse procedures could, under a totality of circumstances
standard, constitute a prima facie violation of section 3543 .5(d), where the employer alleges
that the threat of a strike caused it to make concessions. Member Craib dissented, criticizing
the majority for holding that surface bargaining can be evidenced by conduct w)1ich is aimed at
coercing the other party to make concessions. (South Bay, p. 15.) In his view, "[c]onduct
which is aimed at seeking agreement, regardless of its coercive nature, is quite different from
surface bargaining," which is aimed at avoiding agreement. Member Craib would have allowed
a complaint to issue under the facts alleged in South Bay only if the threat of strike was used as
a method of delaying or avoiding agreement, and in his view, the district had not alleged facts
showing that the strike preparations interfered with bargaining or good faith participation in the
impasse procedures.
We agree with Member Craib on this point: "Conduct which is aimed at seeking
agreement, regardless of its coercive nature, is quite different from surface bargaining .... [I]t
is true that, in some circumstances, a threat to strike prior to the exhaustion of statutory impasse
procedures could be evidence of bad faith .... [but] only where the threat was used as a method
of delaying or avoiding agreement, or otherwise interfering with the negotiations process."
(South Bay, supra, PERB Decision No. 815 dissenting opinion, pp. 15-16.) In South Bay, as in
this case, there were no allegations that the union delivered an ultimatum to the employer that
unless the employer met the union's demands, the union would strike on a certain date.
Therefore, to the extent that South Bay, supra, PERB Decision No. 815 stands for the
proposition that a union's strike preparations undertaken prior to the completion of impasse
15

procedures in anticipation of a lawful post-impasse economic strike demonstrate surface
bargaining, we disavow it. Provided the union continues to engage in good faith bargaining or
participates in impasse procedures in good faith, its simultaneous preparation for the
contingency of not reaching agreement does not violate EERA. Strike preparations do not,
per se, constitute illegal coercion. It is the nature of collective bargaining that each side carries
in its tool box elements that have varying degrees of persuasiveness. These tools include
logical argument and reasoned discourse, publicizing the dispute with the intent of persuading
third parties to put pressure on one side or the other, organizing members of the employee
organization to picket, demonstrate or otherwise attempt to persuade the public employer or the
union to alter their bargaining positions, etc. Ultimately, each side has its own weapon of last
resort. Unions may strike, and the public employers may impose their LBFO, or less commonly
in the public sector, lock employees out of the workplace. We fail to see how talk of or
preparations for these potential courses of action constitutes unlawful coercive conduct. 11 The
fact that these tools of persuasion may convince one side or the other to make concessions does
not render their use unlawful under our statutes.
The facts in this case demonstrate the problem created by a rule that prohibits strike
preparation activity. The District's request for injunctive relief was premised on its assumption
that the Association would strike before impasse procedures were exhausted, and it pointed to
the Association's talk of an unfair practice strike to support this assumption. Yet the
11 Threats to engage in a strike that has an unlawful objective or uses an illegal
tactic, such as a sit-down strike, or a partial strike where employees seek to work and
strike at the same time, may be considered to be an illegal pressure tactic unprotected
by EERA. (San Ramon Valley Unified School District (1984) PERB Order No. IR-46
(San Ramon); Fremont, supra, PERB Order No. IR-54; El Dorado Union High School
District (1985) PERB Decision No. 537.) As we held in Regents, supra, PERB
Decision No. 2094-H, p. 31, the strike threat and preparations must be: "in furtherance
of an unlawful strike; and ... sufficiently substantial to create a reasonable belief in the
employer that the strike will occur."
16

investigation of this case revealed no indication that the Association intended to strike prior to
the exhaustion of impasse procedures. The Association's response to the District's request for
injunctive relief contains a sworn statement made under penalty of perjury by Lian Shoemake,
an employee of the California Teachers Association (CTA) whose responsibilities include
assisting CTA chapters in "issues covered under EERA." He declared that "a pre-impasse
strike is not contemplated" by the Sweetwater Education Association. While PERB is not
bound by a party's disclaimers in every case, the Board has declined to seek a strike injunction
when the union has stated under penalty of perjury that it had "no plan, intention or desire to
strike again." (Santa Maria, supra, PERB Order No. IR-53, p. 6.) In the absence of facts
clearly demonstrating such an intent to strike prior to the exhaustion of impasse procedures and
in light of the Association's express disavowal of any plan to engage in a pre-impasse strike, we
decline to seek injunctive relief against otherwise legitimate organizing activity.
The Association's disavowal of an intent to engage in a pre-impasse strike makes this
case very different from Regents, supra, PERB Decision No. 2094-H. Regents came before the
Board on appeal from a proposed decision by a PERB administrative law judge after a full
evidentiary hearing. At issue in that case was whether pre-impasse strike preparation and strike
threats allegedly in response to the employer's unfair practices violated the duty to participate
in impasse procedures in good faith under Higher Education Employer-Employee Relations Act
(HEERA) section 3 571.1 (c ). 12 The Board announced a test in Regents: to constitute an unfair
practice, pre-impasse strike threats and preparation must be:
(1) in furtherance of an unlawful strike; and
(2) sufficiently substantial to create a reasonable belief in the
employer that the strike will occur.
(Regents, p. 31.)
12 HEERA is codified at Government Code section 3560.
17

On the facts in Regents, supra, PERB Decision No. 2094-H, the Board held that the
union's conduct violated HEERA, because the union was not able to prove that the employer
had engaged in any unfair practices. Thus, the union "failed to rebut the presumption that its
threatened pre-impasse strike was an unfair practice because it did not prove that UC engaged in
any unfair practices that could have provoked CNA's strike." (Regents, pp. 33-34.) If the
threatened strike were not in response to the employer's unfair practices, it was therefore
undertaken for the purpose of "placing pressure on UC to reach agreement at the bargaining
table prior to the exhaustion of statutory impasse procedures." (Id. at p. 34.) The union's strike
threat and preparation was deemed to constitute an unfair practice. In a footnote, the Board
reserved for another day the question of whether preparations for a lawful strike undertaken
before the exhaustion of impasse procedures would constitute an unfair practice. (Id. at p. 34,
fn. 14.)13 We hold today that it would not.
Regents, supra, PERB Decision No. 2094-H is distinguishable from the facts alleged
here. First, the decision in Regents did not arise out of an injunctive relief request, but came to
the Board after a full evidentiary record was established, including facts that addressed whether
the employer had committed unfair practices that provoked the threatened strike. As noted
earlier, we cannot determine at this stage the ultimate legality of a hypothetical unfair practice
strike because we do not have the factual record to determine whether the District actually
committed unfair practices, and if it did, whether those unfair practices provoked a strike.
Second, the strike threat in Regents, supra, PERB Decision No. 2094-H was much more
concrete than the organizing activity allegedly engaged in by the Association in this case. As
13 Nor did PERB address the question of whether CNA's strike would have been
unlawful under County Sanitation District, supra, 38 Cal.3d 564, as an imminent threat
to public health and safety. (Regents, supra, PERB Decision No. 2094-H, p. 34, fn.
13.)
18

the Board noted: "[i]t is undisputed that the strike noticed by CNA would have occurred as
scheduled ... , had the superior court not enjoined it." (Regents, p. 31.) The California Nurses
Association (CNA) had notified the employer, the University of California (UC), of the exact
date, time, and duration of the pre-impasse strike; it had established an "emergency task force"
in order to provide emergency nursing services during the strike. These facts, among others, led
the Board to conclude that CNA's strike threat and preparations were "sufficiently substantial to
support a reasonable belief by UC that the strike would occur." (Regents, p. 34.) Since the
Board previously concluded that the threatened strike was not in response to any UC unfair
practice, the Board concluded that CNA violated HEERA section 3571.l(c) by credibly
threatening to engage in and preparing for a pre-impasse economic strike, i.e., an unlawful
strike.
By contrast, here, the District has failed to show that the Association intended to strike
prior to the completion of impasse procedures. The Association never announced a date on
which it would strike, nor did it state that it would strike before the completion of impasse
procedures. The ballot for the strike vote posed the choice of engaging in an unfair practice
strike at some unspecified time, or authorizing the Association's board of directors to call a
strike if the District imposed its LBFO after impasse procedures were exhausted. Most
importantly, the Association stated under penalty of perjury that it did not intend to engage in a
pre-impasse strike.
We, therefore, need not ascertain whether the District's alleged unfair practices
provoked the Association's strike preparations, since there is no substantial evidence supporting
a reasonable belief that a strike would occur before impasse procedures were exhausted. We
leave to the administrative hearing process the question of whether the District's conduct
19

violated EERA. 14 For all these reasons, we cannot accept the District's assertion that the
Association's conduct was therefore in furtherance of an unlawful strike.
Injunctive Relief Would Not Be Just and Proper
Having determined that there is no reasonable cause to believe the Association is
engaged in conduct that violates EERA, we need not reach the "just and proper" prong of the
Modesto test. 15 However, the District advances two arguments that warrant discussion in
support of its claim that an injunction would be just and proper.
First, the District asserts that because EERA section 354I .3(i) deprives PERB of
authority to award damages caused by illegal strike activity or preparation for such a strike,
there is no effective remedy except injunctive relief. According to the District, any final order
after an unfair practice hearing would be meaningless and that final order would be "so devoid
of force that the remedial purposes of EERA will be frustrated." (Petition for Injunctive Relief,
p. 17.)
This argument presumes that an award of damages is the only remedy that will deter
unlawful conduct by the Association and ignores the District's right to return to PERB with a
subsequent request for injunctive relief under circumstances demonstrating an actual work
stoppage has commenced. While each injunctive reliefrequest must be decided on a case-by-
case basis, in the past PERB has granted employers' requests to seek injunctive relief against
14 We take notice of PERB's case files in Unfair Practice Case No. LA-CE-5893-E.
The Office of the General Counsel issued a complaint on this charge in May 2014.
Subsequently, the charge was withdrawn.
15 Modesto, supra, 136 Cal.App.3d 881, described the "just and proper"
standard: "[Where] there exists a probability that the purposes of the Act will be
frustrated unless temporary relief is granted ... [or] the circumstances of a case create a
reasonable apprehension that the efficacy of the Board's final order may be nullified, or
the administrative procedures will be rendered meaningless, [the just and proper
standard is met]." (Modesto, p. 902, quoting Agricultural Labor Relations Ed. v. Ruline
Nursery Co. (1981) 115 Cal.App.3d 1005.)
20

actual strikes that were taking place prior to the exhaustion of impasse procedures
(Las Virgenes, supra, PERB Order No. IR-8; Val Verde, supra, PERB Order No. IR-9;
San Francisco, supra, PERB Order No. IR-10; San Mateo City School District (1985) PERB
Order No. IR-48; Sacramento, supra, PERB Order No. IR-49.) The Board also has sought
injunctive relief against a work stoppage that caused the complete breakdown of education
(Compton Unified School District (1987) PERB Order No. IR-50 (Compton)), and where the
means of the work stoppage amounted to an unlawful pressure tactic. (San Ramon, supra,
PERB Order No. I.R.-46 [series of unannounced surprise strikes undertaken over the course of
two months deemed an unlawful pressure tactic; injunction required adequate pre-strike notice
to the employer]; Fremont, supra, PERB Order No. IR-54 [intermittent strikes].)1 6 In sum, we
have concluded that the District has not yet shown reasonable cause to believe the Association
has committed an unfair practice based on the factual allegations of this charge. This conclusion
does not preclude the District from returning with a new charge and request for injunctive relief
if circumstances change. The constraint on PERB's remedial authority in EERA
section 3541.3(i) does not mean the Board is powerless to seek injunctive relief against an
actual work stoppage when both prongs of the Modesto test are met.
Second, the District claims that students will suffer "considerable harm" if the
Association is not enjoined from engaging in a pre-impasse strike because they must take
16 The Board declined to seek injunctive relief in Fremont, supra, PERB Order
No. IR-54, in part, because the petitioning employer failed to demonstrate that the work
stoppage caused a complete breakdown of education. The lead opinion concluded that
the intermittent strike tactic was unlawful under EERA and there was therefore
reasonable cause to believe the union's conduct violated EERA. Concurring opinions
disagreed that the intermittent strike was illegal under EERA, or that the conduct met
the reasonable cause prong.
21

important examinations between March and the end of the school year. 17 The Office of the
General Counsel's investigation determined as a general matter that none of the examinations
required certificated bargaining unit members to administer the exams, or that a missed exam
would result in any student failing to graduate or matriculate to the next grade.
The Office of the General Counsel determined that high schools are required to
administer the CAHSEE (the high school exit exam) to every tenth grade student. Those who
fail in the tenth grade, have ample opportunity to take the test again at least twice in each
academic year until graduating. Moreover, the CAHSEE scheduled for March 18-19, 2014 was
only for tenth graders. The test was also scheduled for May 13 and 14, 2014, so any seniors
who had not passed the exam by then could take the exam in May. With respect to the
CAHSEE, the District does not contend that a strike during the administration of this test would
prevent graduation, but only that a strike would "limit students' opportunity to take the exam
and they will have less opportunity to determine which areas they need to focus on in order to
pass the exam." Additionally, the District was unable to demonstrate any credible threat by the
Association that it intended to strike in May, 2014.
The SBAC exam is being offered for the first time this school year. According to
information obtained by of Office of the General Counsel's investigation and available from the
State Board of Education, the SBAC is being administered only for field testing purposes at this
time. The SBAC can be administered at any time within a window between April 7 and
May 16, 2014, so the District has flexibility in re-scheduling any part of the SBAC were the
Association to conduct a work stoppage on days during which the SBAC is currently scheduled.
17 The District did not argue that students would suffer irreparable harm and did
not contend that a strike during any examination period would cause a total breakdown
of education, as occurred in Compton, supra, PERB Order No. IR-50.
22

With respect to AP (Advanced Placement) exams, the District has not shown that these
exams must be proctored by certificated unit members. The same is true for final course work
exams. In sum, the District has failed to demonstrate that the adjustments made to testing
schedules or protocols that would be necessary if the Association were to conduct a strike
during testing periods would cause a total breakdown of education. (Compton, supra, PERB
Order No. IR-50.) Injunctive relief under these circumstances would therefore not be just and
proper.
CONCLUSION
We deny the District's request for injunctive relief because it has failed to show
reasonable cause to believe that the Association's strike preparations violated the duty to
bargain in good faith or to participate in impasse procedures in good faith under the first prong
of Modesto, supra, 136 Cal.App.3d 881. 	Under the second prong of Modesto, there is no
showing injunctive relief would be just and proper. The Association's activity, described by the
District as strike preparations, is presumptively protected under EERA. We are unwilling to
seek to enjoin such activity where there has been no showing that an unlawful strike is
imminent.
ORDER
The Sweetwater Union High School District's request for injunctive relief in Case
No. LA-C0-1612-E is DENIED.
Chair Martinez and Members Huguenin and Banks joined in this Decision.
23