San Marcos Unified School District (PERB 1508E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,

Charging Party, Case No. LA-CE-4214-E

Vv. PERB Decision No. 1508

SAN MARCOS UNIFIED SCHOOL DISTRICT, January 16, 2003

Respondent.

Appearances: Madalyn J. Frazzini, Attorney for the California School Employees Association;
Atkinson, Andelson, Loya, Ruud & Romo by Ronald C. Ruud, Attorney, for San Marcos
Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the California School Employees Association (CSEA) to a
proposed decision of an administrative law judge (ALJ) which found that the San Marcos
Unified School District (District) unlawfully threatened to cease deduction of employee
organization dues from employee paychecks and dismissed the balance of the complaint.

The complaint alleged that the District violated Educational Employment Relations Act

(EERA) section 3543.5(a), (b), and (c)' by imposing or threatening to impose reprisals for

' RERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Government Code. Section 3543.5 states, in pertinent part:

It shall be unlawful for a public school employer to do any of the
following:

protected activity, interfering with employees' protected rights, interfering with CSEA's
protected rights, and committing an unlawful unilateral change in a matter within the scope
of
representation when it threatened to discipline employees, suspend union dues deductions, and
suspend employees' rights under the collective bargaining agreement between the District and
CSEA because employees had engaged in "picketing.2"
After reviewing the entire record in this case, including the proposed decision, CSEA's
exceptions, and the District's response, the Board partially affirms and partially reverses the
decision
of
the ALJ.
BACKGROUND
In December 1999 and January 2000, the parties were at impasse in negotiations over a
successor collective bargaining agreement (CBA). During this period, employees represented
by CSEA assembled outside City
Hal13 prior to two public meetings
of
the District's governing
(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. For
purposes
of
this subdivision, "employee" includes an applicant
for employment or reemployment.
(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.
2 As discussed below, the parties disagree over the meaning and scope of this term.
3 Stipulation of Facts, paragraphs 7, 8.
2

board. Some unit members passed out informational flyers and others carried signs which
characterized the nature of the impasse and contained phrases such as "fair contract now."
Approximately 65 bargaining unit members participated in this activity on December 13, 1999;
approximately 90 members participated on January 10, 2000. Several bargaining unit
members also made presentations to the governing board at both meetings.
Prior to its February 14, 2000, meeting, the District gave CSEA a letter stating, in
pertinent part:
You are hereby put on notice that any unit member who continues
to picket or otherwise violate Article 17 [of the parties' CBA]
will be subject to disciplinary action as provided in Section 17.3.
In addition, as provided in Section 17.4, the District will
withdraw all contractual rights, privileges and services provided
to any unit member and the Association if vioiations continue.
Among other things, this means the District will discontinue
payroll deduction of Association dues. [Emphasis added.]
Section 17 of the parties' agreement stated:
17 .1 	It is agreed and understood that there will be no strike,
work stoppage, slow-down, picketing or refusal or failure to fully
and faithfully perform job functions and responsibilities, or other
interference with the operations of the District by CSEA or its
officers, agents, or members, during the term of this Agreement,
including compliance with the request of other labor
organizations to engage in such activity.
17.2 	CSEA recognizes the duty and obligation of its
representatives to comply with the provisions of the Agreement
and to make every effort toward including all unit members to do
so. In the event of a strike, work stoppage, slow-down, or other
interference with the operations of the District by unit members
who are represented by CSEA, CSEA agrees in good faith to take
all necessary steps to cause those unit members to cease such
action.
17.3 	It is agreed and understood that any unit member violating
this Article may be subject to discipline up to and including
termination by the District.
3

17.4 	It is understood that in the event this Article is violated the
District shall be entitled to withdraw any rights, privileges or
services provided for in this Agreement or in District policy from
any unit member and/or CSEA. 	[Emphasis added.]
Approximately 60 CSEA members engaged in similar conduct, including carrying signs
as described above, prior to the February
14
meeting.
On February 15, 2000, CSEA sent the District's superintendent a written demand for
retraction
of
the District's February 14, 2000 letter on grounds that it violated employees'
rights under BERA and other laws. In a letter to classified employees dated February 22, 2000,
the District's superintendent said the February 14 letter was intended to notify employees
of
their contractual agreement to refrain from picketing and that employees' attendance at
governing board meetings was "encouraged" and "welcome."
The District took no disciplinary action against any
of
its employees, nor did it
discontinue payroll deductions
of
CSEA dues.
ALJ'S PROPOSED DECISION
The ALJ identified and ruled on four issues in the proposed decision:
(1) When the District threatened to discontinue deducting dues
for CSEA, did it violate subdivision (b)
of
section 3543.5?
(2) When the District threatened to discipline employees for
picketing, did it violate subdivision (a)
of
section 3543.5?
(3) When the District threatened its employees with the
discontinuation
of
their CSEA dues deductions, did it violate
subdivision (a)
of
section 3543.5?
( 4) When the District sent its February 14, 2000, letter, did it
violate subdivision (c) of section 3543.5?
4

Threatened Discipline for Picketing
Regarding the charge under EERA section 3543.S(a), the ALJ stated in the proposed
decision that "the entire case rests ... on whether CSEA and its members 'picketed' in the three
cited instances." He further noted, "The definition
of
'picketing' is crucial to a determination
of
whether the District was justified in its claim that CSEA was in violation
of
their CBA when
it carried placards in the vicinity of, and immediately prior to, the District's governing board
meeting." He then set forth excerpts from definitions
of
"picketing" in Black's Law
Dictionary and Roberts Dictionary
of
Industrial Relations and turned to the parties' arguments.
CSEA argued that employees have a protected right under EERA and the First
Amendment to engage in peaceful informational picketing. Divestment
of
such statutory and
constitutional rights can only be effected by a "clear and unmistakable waiver," contended
CSEA. Under that standard, CSEA argued that its agreement to section 17
.1
did not constitute
a waiver
of
employees' rights to engage in the conduct at issue in this case.
After tracing the historical development
of
the concept
of
picketing in the labor context,
CSEA argued before the ALJ that currently, the commonly understood definition is "walking a
picket line while on strike, withholding services, blocking ingress/egress, disruptive
or
violent
behavior and discouraging business with the employer." CSEA also noted that the employees'
actions at issue took place outside a meeting
of
the District's board
of
directors, not at a school
site and not during school hours. Accordingly, argued CSEA, "the demonstration carried none
of the indicia
of
traditional labor picketing." CSEA also cited Civil Code section 1645 for the
proposition that "a contract's technical words are to be interpreted as usually understood by
persons in the profession or business to which they relate, unless clearly used in a different
sense."
5

The District characterized CSEA's argument as contending that "informational and
other forms
of
peaceful picketing are not picketing at all." In response, the District
acknowledged that the authorities cited by CSEA recognize different kinds
of
picketing.
Nevertheless, argued the District, "peaceful or violent, lawful or unlawful, picketing is still
picketing." The District conceded that "Black's Law Dictionary defines the terms picketing,
informational picketing and unlawful picketing as words with different meanings." However,
argued the District, "all are forms
of
picketing."
Finding no mention
of
"picketing" in EERA and no definition in PERB case law, the
District said that private sector case law could "shed some light" on the meaning
of
the term.
The District cited several National Labor Relations Board (NLRB) cases where various forms
of
conduct were found to constitute picketing, and quoted the NLRB as stating:
The important feature
of
picketing appears to be the posting by a
labor organization or by strikers
of
individuals at the approach to
a place
of
business to accomplish a purpose which advanced the
cause
of
the union, such as keeping customers away from the
employer's business. [Quoting Lumber & Sawmill Workers
Local No. 2797 (1965) 156 NLRB 388
[61
LRRM 1046].]
Immediately following that quotation, the District stated, "In the public sector, as is the
case here, the picketers seek to advance the union's cause, not by driving customers away but
rather by putting pressure on elected bodies to meet the contract demands
of
the union." The
District then said, "it cannot be disputed that employees massed in front
of
the employer's
premises, carrying placards with labor dispute-related messages is garden variety picketing."
[Emphasis in original.]
The District next argued, "By any definition, significant numbers
of
unit members did
engage in picketing activity at the December and January Board meetings. They acted in
6

concert, carried placards on the end of a stick depicting the labor dispute, and stationed
themselves outside the main entrance to the Board meeting."
The District also submitted argument regarding constitutional free speech principles,
contending that the issues addressed by employees' signs in this case were not "matters of
public concern" entitled to First Amendment protection.
During the hearing, the ALJ requested "legally supportable ... facts" to help him make a
decision as to the definition of "picketing." He also opined that the Board might provide a
definition. In the proposed decision, the ALJ said CSEA submitted "comprehensive, well-
thought-out and very analytical briefs that went into great detail concerning the differences
between informational, peaceful, and disruptive picketing."
Regarding CSEA's argument that picketing in the labor context involves "walking a
picket line while on strike, withholding services, blocking egress/ingress, disruptive or violent
behavior and discouraging business with the employer," the ALJ said, "this contention is not
supported" by the excerpts from Blacks and Roberts.
The ALJ was unpersuaded by CSEA's observation that the activity in this case took
place after school hours and off school premises and rejected CSEA's argument that the
activity "carried none of the indicia of traditional labor picketing."
"The only credible authority" in support of CSEA's argument, said the ALJ, was Civil
Code section 1645, requiring that a contract's technical words are to be interpreted as usually
understood by persons in the profession or business to which they relate. That authority did
not aid CSEA, however, found the ALJ. "The word 'picketing' is not so technical that it
requires a speciai in-house definition. It has a general, common meaning among the public,
even when used in a labor relations sense." Finding an "absence of any adjectives limiting the
7

breadth
of
the word 'picketing,"' the ALJ concluded that CSEA, through inclusion
of
the word
"picketing" in Article 17, "agreed to refrain from picketing in all its various forms."
Regarding the text
of
Article 17, CSEA argued that the clause "or other interference
with the operations
of
the district," as found in sections
17
.1
and 17 .2
of
the CBA limited the
definition
of
the listed prohibited activities, including picketing, such that the "picketing"
prohibition was in effect only
if
it constituted an interference with the operations
of
the
District. The ALJ rejected this notion, agreeing with the District that the phrase "or other
interference" was a "catchall prohibition" that added to, but did not limit, the specific
prohibited behaviors listed in the section.
CSEA further submitted that a waiver should not be found where, as here, the District
did not provide a quid pro quo for such a waiver in the form
of
an agreement to submit contract
disputes to binding arbitration. The ALJ agreed with the District that CSEA's argument was
foreclosed by the Board's ruling in Modesto City Schools (1983) PERB Decision No. 291
(Modesto), p. 30 (district's insistence on waiver
of
right to strike unaccompanied by offer to
submit to binding arbitration did not constitute failure to bargain in good faith, unless district's
demand constitutes attempt to either avoid contract or weaken union.)
The District's arguments did not address whether non-disruptive informational
picketing is protected activity under EERA. The District's brief to the ALJ referred to the
"right to picket," but did not specify the authority for such a right. The ALJ's analysis noted
CSEA's claim of an "EERA right to peaceably picket," but did not directly address whether
EERA confers such a right.
The District noted CSEA's contention that the waiver "of the right to picket" must be
clear and unmistakable. Although it did not express agreement with that waiver standard, the
8

District asserted that the waiver in Article 17 "is not only clear and unambiguous, it is also
well settled that a union may waive such rights" (citing Long Beach Unified School District
(1987) PERB Decision No. 608 (Long Beach). The District also argued that such a waiver
would not violate employees' rights because "[p]icketing is but one of many pressure tactics a
public employee union may use to demonstrate and publicize its bargaining objectives."
The ALJ did not expressly address CSEA' s contention that the rights at issue could
only be divested through a "clear and unmistakable waiver." The ALJ, as well as the District,
cited Long Beach (No. 608) for the proposition that "PERB has long held that a union has the
authority to agree to waive collective bargaining provisions that guarantee an employee's right
to engage in specified union activities, so long as such agreement does not seriously impinge
on rights provided by the EERA." The ALJ found that the ban on picketing does not
"seriously impinge or limit a union's ability to communicate with the public over its
employment issues" because other means of communication remained available.
Finding that CSEA contractually waived its members' rights to picket and that
"picketing" included CSEA's members' conduct in this case, the ALJ concluded that, when
the District threatened the employees with discipline for "picketing," it did not violate EERA
section 3543.5(a).
Threatened Discontinuance of Dues Deduction - Employees
The District argued that a union may contractually waive employees' statutory rights,
such as the right to dues deductions, as long as the employer does not insist to impasse on such
a waiver. (Citing South Bay Union School District (1990) PERB Decision No. 791 (South
Bay) (district violated BERA by insisting to impasse on provision barring union's protected
right to file grievances on its own behalf); Chula Vista City School District (1990) PERB
9

Decision No. 834 (Chula Vista) (district violates EERA by insisting to impasse on non-
mandatory subjects of bargaining).) The District contended that such a waiver resulted from
CSEA's assent to Article 17.
The ALJ found that the District violated EERA section 3543.S(a) when it threatened the
discontinuance of dues deductions (citing Fresno Unified School District (1982) PERB
Decision No. 208 (Fresno)). In Fresno, the Board held that employees (by virtue of Ed. Code
sec. 45060) and employee organizations (by virtue ofEERA sec. 3543. l(d)) have absolute
statutory rights to dues deductions that are not divested by a union's allegedly prohibited
conduct. The Board also held that the statutory rights to dues deductions can only be forfeited
by a clear and unmistakable waiver. A union's agreement to a penalty clause in a collective
bargaining agreement that arguably terminated dues deductions in the event of certain conduct
by the union was found insufficient to constitute a clear and unmistakable waiver of the
employees' or union's statutory rights to dues deductions. The penalty provision was more
reasonably interpreted as referring to rights secured through negotiations, not rights conferred
by statute, found the Board. Therefore, the Board in Fresno ruled that the employer's cessation
of dues deductions as punishment for a strike violated Section 3543.S(b ).
The Board in Fresno did not rule on a Section 3543.S(a) allegation with regard to the
dues deductions. Here, extrapolating from Fresno, the ALJ held that employees enjoy a
statutory right to dues deductions and that, regardless of the union's actions, the right was not
waived by the penalty clause in section 17 .1.
The District argued that Fresno was distinguishable because the employer there actually
ceased dues deductions, which had not occurred in this case, but did not persuade the ALJ.
The ALJ did not specifically address the District's citations to South Bay and Chula Vista.
10

However, the ALJ's emphasis on the fact that absolute statutory rights were at issue in this
case and in Fresno inherently distinguished South Bay and Chula Vista, which did not involve
an alleged waiver
of
such absolute statutory rights. Ultimately, the ALJ found that,
by
threatening to stop dues deductions, the District violated BERA section 3543.S(a).
Threatened Discontinuance
of
Dues Deduction 	CSEA
The ALJ found that the threat to discontinue dues deductions did not violate
Section 3543.S(b
).
	The ALJ reasoned that Section 3543.S(b) does not literally prohibit
interference with organizational rights; it prohibits a denial
of
organizational rights.
Section 3543.S(b) provides,
"It
shall be unlawful for a public school employer to do any
of
the
following: ... (b) Deny to employee organizations rights guaranteed to them by this chapter."
Therefore, because the threat
of
discontinuance
of
dues was never implemented, the
ALJ apparently reasoned that it constituted, at most, "interference," but did not constitute
"denial"
of
organizational rights prohibited by Section 3543.S(b
).
Threatened Discontinuance
of
Dues Deduction for Employees as a Unilateral Change
CSEA argued that, by threatening to discontinue dues deductions
of
employees who
engaged in the informational picketing, the District violated BERA section 3543.S(c)
by
unilaterally changing its policy contained in section 17. The District countered that there was
no unilateral change because the District did not change a policy, it "merely gave notice
of
its
intent to enforce the longstanding picketing prohibition in Article 17" (citing Grant Joint Union
High School District (1982) PERB Decision No. 196 (Grant)). The ALJ found the threat to
deprive employees of their statutory right to dues deduction was not a unilateral modification
of a matter within the scope of representation and, therefore, that there was no obligation to
negotiate.
11

CSEA'S
EXCEPTIONS
In its exceptions, CSEA contends, in sum, that the ALJ erred by: (1) failing to find a
violation
of
EERA section 3543.5(a) when the employer threatened employees with discipline
for engaging in protected activity; (2) deciding that resolution
of
the Section 3543.5(a) charge
rested entirely on whether CSEA and its members had picketed the governing board meetings;
(3) viewing the definition
of
"picketing" as crucial to determining whether CSEA violated the
parties' agreement; (4) incorrectly applying Civil Code section 1645; (5) giving improper
consideration to the clause
"or
other interference with the operations
of
the District"
and
failing to apply it to the term "picketing" in section 17 .1; (6) failing to hold the District
to
the
burden
of
proving a clear and unmistakable waiver
by
CSEA; (7) finding that "picketing" is
not vague or ambiguous and that it has a common meaning among the public; (8) concluding
that the contract language waived the right to picket; (9) misapplying Board precedent;
(10) failing to find a unilateral change; and (11) imposing a waiver
of
constitutional rights
absent a knowing, voluntary, and intelligible waiver, in violation
of
public policy.
Absent a waiver,
CSKA~
contends that it is "indisputable that unit members' activity was
an exercise
of
concerted conduct protected by EERA and the First Amendment." Accordingly,
the District carried the burden
of
proving a waiver
of
those rights, argues CSEA, but
it
failed to
satisfy that burden. CSEA further argues the waiver defense must meet a higher standard than
ordinary waiver
of
statutory rights due to the potential chill
of
First Amendment freedoms that
a waiver in this case would entail. CSEA further submits that, even
if
the CBA did restrict
First Amendment rights, it would be unenforceable as contrary to public policy.
CSEA submits that the clause "or other interference" in section 17 .1 limits and defines
the nature
of
the prohibited activities listed before it, including picketing, such that those
12

activities are prohibited only
if
they cause disruption to District operations. In support,
CSEA
cites Civil Code section 1641, which states, "The whole
of
a contract is to
be
taken together, so
as to give effect to every part,
if
reasonably practicable, each clause helping to interpret the
other." CSEA contends the
ALJ's
interpretation would violate that principle
of
textual
construction because interpreting the contract as waiving the right to all picketing would read
the word "other" out
of
the contract.
To illustrate, CSEA asserts that
if
the word "other" were omitted from section 17 .1, it
would read, in pertinent part: "picketing,
...
or interference with operations
of
the District."
This phrasing would have made "interference with operations
of
the District" an action
separate and distinct from picketing. However, the contract contains the word "other," which,
if
it is to be given effect, means "interference with operations
of
the District" refers
back
to,
and modifies, the list
of
prohibited actions, including the action
of
picketing.
CSEA also invokes the canon
of
textual construction known as "noscitur a sociis" (it is
known by its associates),4 for the principle that "picketing" should be interpreted in a
manner
consistent in definition and scope with the other items in the list
of
prohibited activities. 	Those
other items clearly would interfere with operations
of
the District, so picketing should
be
interpreted in a similar manner, contends CSEA. That would exclude the conduct in this case,
which did not interfere with the operations
of
the District.
CSEA further argues that the contract is susceptible to more than one meaning
and
that
the word "picketing" is vague on its face, providing an insufficient basis for a waiver. 	In
4 This is "a canon of construction holding that the meaning of an unclear word
or
phrase
should be determined by the words immediately surrounding it." (Black's Law Diet. (7th ed.
1999) p. 1084.) 
13

support
of
this position, CSEA cites two criminal law cases where an ordinance prohibiting
"picketing" on a public highway or private property in connection with a strike was held to be
too indefinite and uncertain to provide a basis for a criminal prosecution. Analogously, CSEA
contends that "picketing" is too vague and ambiguous to support a finding
of
clear and
unmistakable waiver
of
First Amendment rights by contract in this case.
In a conceptually related argument, CSEA submits that a contract provision containing
the term "picketing" is unconstitutionally vague and, therefore, even
if
it purports to waive
First Amendment rights, it cannot support disciplinary action against public employees.
Finally, CSEA argues that, even
if
the contract did effect a waiver, PERB should refuse
to enforce it because to do so would harm the public interest. For authority and illustration,
CSEA cites a judicial decision that refused to enforce a portion
of
a settlement agreement that
waived an individual's constitutional right to run for public office. (Davies v. Grossmont
Union High School District (9 th Cir. 1991) 930 F.2d 1390 (Davies).) The court, in Davies,
reasoned that "to treat political rights as economic commodities corrupts the political process"
and was therefore violative
of
public policy. (Davies at p. 1398.) CSEA contends,
analogously, that finding a waiver in this case would improperly indicate that the political
rights
of
free speech and redress
of
grievances to a duly elected school board can be treated as
commodities waiveable by contract in exchange for a wage and benefit package, which PERB
should avoid. Nor has the District shown any legitimate reason for such a significant waiver,
notes CSEA.
Moreover, notes CSEA, as a matter of federal constitutional right, public employees
cannot be disciplined for speech on matters of public concern absent a showing that it
constitutes a disruption to operations of the public agency. (See, e.g., Kirchmann v. Lake
14

Elsinore School Dist. (1997) 57 Cal.App.4 th 595, 609 [67 Cal. Rptr. 2d 268), modified
on
other
grounds and rehearing den. (2000)
83
Cal.App.4 th 1098 [100 Cal.Rptr.2d 289]; review den.
(2001) S092671; cert. den. (2001) 533 U.S. 902 [150 L.Ed.2d 231] (Kirchmann); Waters v.
Churchill (1994)
511
U.S. 661, 675, 682; 128 L.Ed.2d 686] (Waters).) Accordingly, only an
interpretation
of
the parties' agreement that prohibits disruptive picketing would survive
constitutional muster, contends CSEA.
DISTRICT'S RESPONSE TO CSEA'S EXCEPTIONS
The District responds that CSEA's arguments, or variations thereof, were rejected
by
the ALJ who concluded that the contract prohibited picketing, that unit members had engaged
in picketing activities within the commonly understood definition
of
the term, and that the
District acted properly and within its authority when it gave notice that future violations would
subject unit members to disciplinary action.
The District contests CSEA's argument that the words "other interference" limit the
picketing prohibition to only that picketing which interferes with District operations. 	The term
"other" in section
17
refers to "all unspecified conduct, not included within the scope
of
the six
specifically prohibited activities, which interferes with District operations." Thus, argues the
District, the ALJ correctly reasoned that "or other interference" is a "catchall" phrase that adds
to the list
of
prohibited activities.
The District argues that none of the authorities regarding statutory and contractual
construction cited by CSEA stand for the proposition that a general catchall phrase following a
list of specific items should modify, restrict, or limit the listed items. Moreover, noted the
District, such canons of construction come into play only if the meaning of language in the
15

contract is "questionable." As "picketing" has a plain, generally understood meaning, there is
no basis for applying rules
of
statutory construction to interpret it.
The District also observes that the title
of
section
17
includes the term "concerted
activities," which, according to dictionary definition, encompasses more than activity that
interferes with District operations.
In opposition to CSEA's public interest argument, the District submits that in Davies,
the sole case cited by CSEA, the contract language at issue forever waived the individual's
right to seek or accept any office in the District, foreclosing all pathways to elected office.
Thus, the District contends, nothing in that case suggests that a union may not, as was done
here, temporarily waive but one
of
many available methods to publicly communicate its
position on labor issues. Accordingly, argues the District, the waiver here, unlike in Davies,
left other means available for employees' to exercise their rights, so it does not harm any
public interest.
The District also argues that CSEA is not helped by cases finding that there is a First
Amendment right to picket, as none
of
those cases state that the right cannot be waived.
Reliance on cases articulating public employees' rights to comment on matters
of
public concern are equally unavailing, contends the District. Those cases carefully distinguish
between matters
of
general, broad public concern, relative to which an employee enjoys a
constitutional right to free speech in the workplace, and matters
of
individual concern, such as
an employee's private grievances, about which employees do not have a constitutional right to
speak at work. Comments on collective bargaining fall into the unprotected category, so there
is no constitutional impediment to the contractual provision at issue here, according to the
District.
16

Consistent with that position, the District submits that the ALJ correctly applied Long
Beach (No. 608) in concluding that CSEA had waived its right to engage in picketing.
	The
District argues that, in Long Beach, PERB ruled that such waivers, negotiated in good faith,
are valid and enforceable so long as the contract does not seriously impinge upon rights under
EERA. The fact that a constitutional right is arguably at issue in the instant case should not
change the outcome, argues the District, because the activities at issue in Long Beach
"may
be
constitutionally protected" and the waiver analysis is equally applicable in the instant case.
Finally, the District contests CSEA's argument that the term "picketing" is
unconstitutionally vague, noting that even
if
the criminal law standards cited by CSEA are
applicable, the record "clearly shows unit members and other picketers understood perfectly
the concept
of
picketing" contemplated by the prohibition in section 17 .1. As evidence, the
District notes that, after being provided with notice and a copy
of
section 17 .1, many unit
members "suddenly stopped" the conduct.
DISCUSSION
Pursuant to its statutorily defined jurisdiction, the Board's ultimate adjudicatory
responsibility in this case, as with all cases brought before it on statements
of
exceptions, is to
review the ALJ's decision in light
of
the record and the parties' arguments, independently
assess whether the proposed decision accurately applies EERA to the facts
of
the case, and
determine an appropriate disposition in light of the purposes
of
EERA and,
if
necessary, utilize
the Board's remedial and administrative powers. Fulfillment
of
that responsibility is
not
a
simple matter in this case, however.
As the parties' arguments demonstrate, adjudication of this case under EERA requires
careful consideration of the language, fundamental purposes and doctrinal foundations
of
that
17

statute; relevant public policy embodied in fundamental federal and state constitutional and
labor law precedent; as well as exploration
of
the nature
of
the rights implicated herein and the
legal standards governing their waiver.
Although the parties disagree on the meaning
of
the term, they both characterize the
disputed activity in this case as "picketing" and they both direct the Board to private sector
precedent for guidance. Adjudication
of
CSEA's charges and the District's actions relative to
that disputed activity depends initially upon determination
of
its status under EERA. 	To
properly address that issue, we begin as the parties suggest, by considering relevant
fundamental public policy, reflected in analyses
of
the federal and state courts, the NLRB, and
PERB.
Relevant Public Policy
It is a well-settled general principle that "peaceful picketing for a lawful purpose is an
activity safeguarded by the First Amendment." (Miller
v.
UFCW Local 498 (9
th
Cir. 1983)
708 F.2d 467 [113 LRRM 3107] (Miller); see generally, Thornhill v. Alabama (1940) 310
U.S. 88 [84 L.Ed. 1093] (Thornhill); see also, McKay v. Retail Auto. S. L. Union No. 1067
(1940) 16 Cal.2d 311, 319-320 [7 LRRM 702], cert. denied (1991) 313 U.S. 566: "[T]he right
to picket peaceably and truthfully is one
of
organized labor's lawful means
of
advertising its
grievances to the public, and as such is guaranteed by the Constitution as an incident
of
freedom
of
speech." [citations omitted].) The right to picket is entitled to even greater
protection when it occurs in a public place. (Pittsburgh Unified School Dist. v. California
School Employees Assn. (1985) 166 Cal.App.3d 875, 891 [213 Cal.Rptr. 34].) Picketing can
nevertheless be regulated because it involves not only speech but also an element of conduct.
(Miller at p. 471.) However, such regulation can only be imposed by a legislature for a
18

compelling governmental purpose and must be justified in light of the affected free speech
rights of employees. (In re Berry (1968) 68 Cal.2d 137, 154 [65 Cal.Rptr. 273].) Article I,
section 2 of the California Constitution provides more stringent speech protections than does
the First Amendment. (Robbins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 908 [153
Cal.Rptr. 854], affd (1980) 447 U.S. 74 [100 S.Ct. 2035; 64 L.Ed.2d 741].)
The employer at issue in this case is a public entity and, by operation of the First and
Fourteenth Amendments, is subject to free speech restrictions. (Thornhill at p. 94: "The
freedom of speech and of the press, which are secured by the First Amendment against
abridgment by the United States, are among the fundamental personal rights and liberties
which are secured to all persons by the Fourteenth Amendment against abridgment by a
State.")
When, as here, the government is serving as an employer, it has somewhat wider
latitude to regulate speech of its employees than of the general citizenry. (Connick v. Myers
(1983) 461 U.S. 138 [75 L.Ed.2d 708] (Connick).) Nevertheless, public employees retain First
Amendment rights to comment on matters of public concern. (Waters; Connick; Perry v.
Sinderman (1972) 408 U.S. 593; 33 L.Ed.2d 570] (Perry); Kirchmann.) For purposes of public
employees' constitutional speech rights, "matters of public concern" include, inter alia,
statements related to unionization, union-management relationships, and loss of confidence in
the management of the public entity. (See Chico Police Officers' Assn. v. City of Chico
(1991) 232 Cal.App.3d 635, 646 (283 Cal.Rptr. 610] (Chico); Gilbrook v. City of Westminster
(9 th Cir. 1999) 177 F.3d 839, 866.) As discussed below, the courts have developed stringent
standards governing waiver of such basic rights, whether by the employees or their exclusive
representative.
19

In this case, the placards employees carried addressed the nature
of
the impasse and
demanded a "fair contract now." CSEA contends that activity is protected by the First
Amendment. The District argues that employees' First Amendment rights to comment
on
matters
of
public concern are not implicated in this case because "an employee's private
grievances" were found not to be a matter
of
public concern in Connick. However, the
argument lacks merit because, as the Supreme Court declared in the seminal Thornhill case:
The merest glance at state and federal legislation on the subject
demonstrates the force
of
the argument that labor relations are not
matters
of
mere local or private concern .... "Members
of
a union
might, without special statutory authorization by a State, make
known the facts
of
a labor dispute, for freedom
of
speech is
guaranteed by the Federal Constitution." [Thornhill at p. 103,
citations omitted.]
Thus, the expressions
of
the CSEA members at issue in this case addressed a general labor
dispute involving a public employer, not a single employee's "private grievance." California
cases are in accord. (See, e.g., Chico at p. 647.) Accordingly, conduct
of
the type at issue here
falls within the ambit
of
federal and California constitutional free speech protections,5 evincing
a strong, longstanding public policy in favor
of
protecting the right to engage in non-disruptive
informational picketing. With that policy in mind, we turn to the first critical question in this
case: whether non-disruptive informational picketing is a protected activity under EERA.
Status
of
Non-Disruptive Informational Picketing Under EERA
The Board has never ruled whether EERA confers a right to engage in peaceable
informational picketing. The very few PERB cases that have discussed the issue have
5 The Board is mindful of its mandate in this case to rule on whether EERA was
violated. While Constitutional sources do not provide the authority for the Board's order,
examination of the Constitutional status of informational picketing and the principles
applicable to public employee speech reveals and illuminates important historical, public
policy and analytic background. For further related discussion, see footnote 8, infra.
20

but	acknowledged the fundamental nature
of
the right to picket and have observed, 	have not
held, that such a right is protected under EERA. For example, in Modesto, the Board noted the
similarity between rights guaranteed under the National Labor Relations Act (NLRA) and
and informational	EERA and said, "Membership drives, meetings, bargaining, leafletting
picketing are activities which are, without question, authorized by section 3543." (Modesto at
Decision
p. 62, emphasis added; see also, El Dorado Union High School District (1985) PERB
No. 537 (El Dorado) (right to picket is "arguably protected activity").)
directly 	issue	Given that the status
of
"picketing" under EERA is 	at 	under the facts
of
that the observations in Modesto and El Dorado regarding the	the instant case, the Board finds
BERA-protected status
of
informational picketing merit evaluation in light
of
subsequent case
below, Modesto andlaw and the fundamental purposes ofEERA. However, as discussed
El Dorado do not constitute binding precedent regarding whether informational picketing is
protected activity under EERA.
in	Modesto was a case about strikes, not picketing. Similarly, the issue 	El Dorado was
was unlawful.whether teachers had engaged in a partial strike and,
if
so, whether their conduct
protected" activity under EERA,	The Board, in El Dorado, stated that picketing was "arguably
"the Board does not consider the question before it to be whether the
but expressly stated
picketing, in itself, violated the Act." Thus, neither Modesto nor El Dorado ruled that
informational picketing is a protected right under EERA.
informational	Rather, the observations in Modesto and El Dorado regarding 	picketing
decisions of the Board based on the records in those cases. "Dicta" iswere dicta, not binding
"general argument or observation unnecessary to the decision which has no force as
precedent." (United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d
21

823, 834 [209 Cal.Rptr. 16], citations omitted.) PERB, like the courts, is not bound by dicta.
(See, e.g., Baldwin Park Unified School District (1991) PERB Decision No. 903.) Stated
differently, PERB does not issue "advisory opinions," meaning generalized declarations of law
on issues that are not raised by the facts of a case or necessary for its resolution. (See, e.g.,
Long Beach Community College District (2002) PERB Decision No. 1475 and cases cited
therein.)
To treat Modesto or El Dorado, without further analysis, as authority for finding that
EERA confers a right to engage in non-disruptive informational picketing would elevate dicta
to binding precedent or construe picketing-related language in those cases as binding advisory
opinions, contrary to longstanding Board precedent and fundamental principles of appellate
jurisprudence. Based on the foregoing, we respectfully disagree with the concurrence, infra,
that citation to dicta in Modesto and El Dorado is sufficient to establish that informational
picketing is protected activity under EERA.
Accordingly, we now examine Modesto in light of relevant subsequent case law and the
purposes of EERA, in the interest of determining the status of non-disruptive informational
picketing under EERA in the context of this case. The Board in Modesto observed that, unlike
theNLRA,
EERA contains no reference to concerted activities. It does,
however, in section 3543, guarantee public school employees the
right, free from employer interference, 'to form, join, and
participate in the activities of employee organizations of their
own choosing .... '
The only difference we find between the right to engage in
concerted action for mutual aid and protection [protected by
section 7 of the NLRA] and the right to form, join and participate
in the activities of an employee organization is that EERA uses
plainer and more universally understood language to clearly and
22

directly authorize employee participation in collective actions
traditionaliy related to the bargaining process. [Modesto at
pp. 61-62, ellipses in original,
fn.
omitted.]
Citing private sector cases
on
the subject
of
strikes, the Board in Modesto found that,
just
as
the basic purposes
of
the NLRA mandated a determination that the right to strike was protected
under that act, the substantively similar purposes
of
EERA mandated a finding that the right to
strike is protected under EERA. The Board in Modesto also reasoned that the purposes
of
EERA mandated that informational picketing should be found a protected right under EERA.
However, as the issue
of
picketing was not presented on the facts
of
Modesto, the Board did
not expressly hold that EERA confers a right to engage in non-disruptive informational
picketing.
The analysis in Modesto was revisited in the Board's split decision in Compton Unified
School District (1987) PERB Order No. IR-50 (Compton). There, ruling on a request for
injunctive relief to block a teacher strike, a plurality
of
the Board overruled Modesto insofar
as
it held that employee strikes are a protected activity under EERA. Although strikes are
not
at
issue in the instant case, the analysis in Compton must be examined to assess whether
and
how
it affects the viability
of
Modesto's observations regarding picketing.6
The Compton case produced three separate written discussions: a lengthy lead analysis
by the plurality author, a concurrence by a second Board member agreeing to portions
of
the
plurality author's analysis and conclusions, and a dissent by the third Board member.
Compton purported to overrule Modesto. Although strikes, not picketing, were at
issue in both cases and informational picketing is at issue herein, it remains necessary to
examine Compton to determine whether its analysis of the rationale in Modesto regarding
protected rights under EERA, although directed to strikes, obviated the question of whether
Modesto correctly observed that informational picketing is an BERA-protected right.
23

Reviewing public sector labor relations statutes, most
of
them in transit districts, the
plurality discussion in Compton noted that, in some statutes but not in others, the Legislature
included the following language found in the definition
of
protected activity in section 7
of
the
NLRA, "to engage in other concerted activities for the purpose
of
collective bargaining or
other mutual aid or protection." Examining patterns
of
the co-occurrence
of
that language and
a finding in the private sector and under various California statutes
of
the right to strike, the
plurality assumed that the "other concerted activities" language was legislative code for the
right to strike. Citing the absence
of
that language in EERA, concerned with avoiding
interruption to public education, and finding that other judicial case law had not resolved the
status
of
strikes under EERA, the plurality held that teacher strikes are not protected activity
under EERA. Regarding Modesto, the plurality stated,
This Board's decision in [Modesto] is clearly incorrect and is
overruled insofar as it interprets EERA section 3543 as
authorizing work stoppages by public school employees for the
purpose
of
collective bargaining or other mutual aid or protection.
[Compton at p. 106.]
The plurality discussion then determined that the strike in Compton constituted an
unfair labor practice for four reasons: (1) the union used disruption and interference in school
operations as a coercive tactic to "obtain employer capitulation" in bargaining; (2) the union's
use
of
the strike unilaterally changed the terms and conditions
of
striking teachers'
employment, which constituted a failure to bargain in good faith; (3) the union attempted to
achieve bargaining goals in a manner the Board found violative
of
public policy, which was a
failure to bargain in good faith; and (4) the strike violated "one of the underlying policies
of
EERA, which is to maintain the continuity and quality of educational services," and, because
violation of that policy was designed to achieve bargaining demands, again constituted a
24

failure to bargain in good faith. 	In a footnote to the section where those four reasons were
summarized, the plurality discussion stated that Modesto was overruled "insofar as [it is]
inconsistent with the conclusions herein." (Compton at p. 160.)
The plurality's lengthy analysis in Compton carried only the vote
of
its author. A
second Board member wrote a concurring opinion, agreeing with the plurality that the strike in
Compton constituted a failure to bargain in good faith. The basis for that agreement
by
the
concurrence was that:
[T]he strike was employed to cause a total breakdown
of
two
discreet [sic] activities that are guaranteed
by
statute and case
law: (1) basic education for students and (2) negotiations free
from coercive tactics that hold hostage that education.
(Compton at page 167.)
The concurrence also said the strike "arguably violated" the mandate in Section 3540 to
improve employer-employee relations, but did not expressly base its concurrence on that
comment. Regarding Modesto, the concurrence stated in a footnote:
As set forth [in the plurality discussion], I concur that the Board's
earlier interpretation
of
section 3543 is incorrect and I
join
[the
plurality author] in overruling [Modesto] on that point. But just
as EERA confers no statutory right to strike, neither does it
expressly
by
law prohibit strikes. The sole issue before the Board
in any strike case is whether the facts
of
that strike can lead to a
finding that the strike is an unlawful activity under EERA.
It is unclear from that statement how much
of
the plurality's analysis the concurrence
joined, beyond its rejection
of
the finding in Modesto that EERA confers a statutory right to
strike. Neither the plurality nor the concurrence addressed the observation in Modesto that
non-disruptive informational picketing is protected activity under EERA.
The plurality decision was reached over a strongly worded dissent which viewed the
plurality's analysis as the "16 magic words" approach (referring to the 'other concerted
25

activities" language) and as evincing "a quest to find a basis for enjoining strikes they find
personally distasteful." The dissent noted that the statutes examined by the plurality differed
from EERA not only in terms of the "other concerted activities" language emphasized by the
plurality, but in other substantive respects as well.
None of the three opinions in Compton expressly rejected or disapproved the statement
in Modesto that EERA protects informational picketing. In terms of substantive analysis, none
of the Board members' analyses, including the plurality's expressed reasons for overruling
Modesto, disturbed the observation in Modesto that informational picketing is protected
activity under EERA. The public policy concerns repeatedly emphasized by the plurality's
lead discussion in Compton, the primary of which was avoiding disruption of public education
potentially occasioned by a strike, are not implicated by non-disruptive informational
picketing. A piuraiity of two Board members in Compton agreed that the strike was unlawful,
but only on the grounds that the strike disrupted the educational process and the union used
that disruption for purposes of coercion in negotiations, which they agreed constituted a failure
to bargain in good faith. 	Those concerns are not implicated by non-disruptive informational
picketing, which, by definition, does not disrupt the operations of the district.
Thus, neither the ruling in Compton nor the plurality's criticism of the analysis in
Modesto disturbed the Board's earlier observation in Modesto that EERA confers the right to
engage in non-disruptive informational picketing. Mindful of the Compton plurality's general
observation that the Board must remain attentive to the text of EERA when ruling on cases
arising under it, the Board now turns to the language and purposes of that statute to assess
whether the statement in Modesto, that informational picketing is a protected activity under
EERA, accurately reflects the purposes of that act.
26

BERA expressly provides employees with 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." (BERA sec. 3543(a), emphasis added.) Non-
disruptive informational picketing is a means of communication that has long been protected in
judicial and administrative enforcement of the First Amendment and foundational labor law
principles, as discussed in detail supra. It is a classic form of participation by employees in the
activities of employee organizations for the purpose of representation on matters of employer-
employee relations. The informational picketing at issue in the instant case is a perfect
illustration of this point: the employees were carrying signs before a public policy making
body, expressing their beliefs as bargaining unit members regarding the impasse and state of
contract negotiations.
Thus, non-disruptive informational picketing is a collective activity both
constitutionally protected and long recognized in foundational labor law to be intimately
related to the ability of employees to engage in union activities, a right literally conferred by
the text of BERA. Accordingly, as the issue is squarely presented on the facts of this case, the
Board now holds what it correctly observed in Modesto, that non-disruptive informational
picketing is protected activity under BERA. The Board need not and does not speculate
regarding the status or definition of other forms of picketing under EERA.
Clear and Unmistakable Waiver Standard
Statutorily and constitutionally protected rights - such as the right to engage in non-
disruptive informational picketing,7 can only be divested, by employees or their exclusive
7 The Board does not speculate herein regarding what sort of waiver would suffice to
divest employees of any claimed right to engage in other forms of picketing.
27

representative, through a "clear and unmistakable waiver." (Wright
v.
Universal Maritime
Service Corp. (1999) 525 U.S. 70, 80 [159 LRRM 2769]; California State Employees' Assn.
v.
Public Employment Relations Bd. (1996)
51
Cal.App.4 th 923, 938 [59 Cal.Rptr.2d 488];
Metropolitan Edison Co.
v.
NLRB (1983) 460 U.S. 693, 708 [112 LRRM 3265] (Metropolitan
Edison) (waiver
of
employee rights by union must be clear and unmistakable); Oakland
Unified School Dist.
v.
Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1011
[175 Cal.Rptr. 105].)8
The need to prove a clear and unmistakable waiver in this case is underscored
by
the
breadth and severity
of
the penalty set forth in the contract for engaging in "picketing."
Invoking section 17.4
of
the CBA and using language arguably even broader than that
contractual provision, the District, through its letter, threatened to discipline employees, cease
dues deductions, and "withdraw all contractual rights, privileges and services provided to any
unit member and the Association ... " (emphasis added.) Thus, the penalty for informational
picketing, under the District's interpretation
of
the contract, would include forfeiture
of
all
benefits
of
the negotiated CBA. The legality
of
such a penalty provision, one that arguably
infringes on employee and employee organization rights protected under EERA, although
questionable, is not before the Board. However, the remarkable breadth and severity
of
section 17.4 and the arguably more severe threat in the District's letter make even clearer that
the rights to engage in non-disruptive informational picketing protected by EERA (and the
8 The Board finds that the stringency
of
this waiver requirement accommodates the
public policy concerns CSEA contends are implicated by the disputed waiver in this case.
Accordingly, the Board need not address the parties' contentions regarding Davies, supra. The
courts have found that even fundamental rights can be waived, but have protected those rights
(and the public interest) by requiring that a waiver, to be effective, must be clear and
unmistakable.
28

First Amendment) 9 can only be found forfeited in this case on proof
of
a clear and
unmistakable waiver.
The ALJ did not address the relevance or application
of
the clear and unmistakable
waiver standard. Instead, the proposed decision cited Long Beach (No. 608), for the principle
that a union may waive "collective bargaining provisions that guarantee an employee's right to
engage in specified union activities" provided the agreement does not "seriously impinge on
rights provided by the EERA." The ALJ's approach was erroneous for two reasons.
First, the interest potentially waived here is not just a right contractually secured
through bargaining, but a fundamental right that derives from EERA and the federal and state
constitutions. Thus, the ALJ's explication
of
a standard governing a union's waiver
of
contractual rights is inapposite. Moreover, the principle articulated by the ALJ, that a union
can waive employee rights, does not obviate the basic rule that it can only effect such a waiver
through clear and unmistakable means. In Metropolitan Edison, the U.S. Supreme Court
articulated a standard similar to the one described by the ALJ herein and held that a union may
waive employees' statutory rights as long as it does not violate the duty
of
fair representation
or impair employees' ability to choose their representative. (Metropolitan Edison at p. 708.)
However, the Court went on to explain, "[W]e will not infer from a general contractual
provision that the parties intended to waive a statutorily protected right unless the undertaking
is 'explicitly stated.' More succinctly, the waiver must be clear and unmistakable." (Ibid.,
9 While this Board does not rule on disputes regarding waiver
of
First Amendment
rights, those cases are noteworthy because they reveal public policy that is consistent with the
principles guiding the Board's analysis herein. Whether applied by a court charged with
enforcing federal Constitutional rights or by the Board when enforcing rights protected by
BERA, the waiver standard applicable to section 17
.1
of the parties' agreement is the same: to
divest employees of their important rights to engage in non-disruptive informational picketing
in either forum, the waiver must be clear and unmistakable.
29

emphasis added.) Thus, even
if
the waiver did not violate the union's duty
of
fair
representation or impinge on employees' ability to choose their representative, it still would
have to be clear and unmistakable to be effective.
Second, as discussed above, the provision at issue here arguably does "seriously
impinge on rights provided
by
the EERA," not only because it potentially affects employee
rights to engage in non-disruptive informational picketing and participate in union activities,
but because the threatened penalty for engaging in the protected activity is forfeiture
of
"all
contractual rights." The right to choose a representative is
of
little significance
if
that
representative bargains away employees' right to have representation and exercise concerted
activity.
Thus, even
if
the clear and unmistakable waiver requirement were ignored, application
of
the waiver language relied on by the ALJ from Long Beach, or the similar language from
Metropolitan Edison, would not clearly mandate a finding that the waiver was enforceable, as
the proposed decision suggests. Application
of
that standard is not dispositive, however,
because federal and California case law make clear that a waiver
of
employees' statutory or
constitutional rights, whether by the employees or their representative, to be effective, must be
clear and unmistakable. That is the standard the Board applies herein.
Application
of
Clear and Unmistakable Waiver Standard to This Case
The District argues, and the ALJ found, that CSEA waived by contract its employees'
rights to picketing in all its forms, including the conduct at issue in this case. It must
be
determined, therefore, whether section 17
.1
effected such a waiver
of
the right to engage in the
conduct at issue here.
30

Section 17.1 states, in pertinent part,
It is agreed and understood that there will be no strike, work
stoppage, slow-down, picketing or refusal or failure to fully and
faithfully perform job functions and responsibilities, or other
interference with the operations
of
the District
by
CSEA or its
officers, agents, or members, during the term
of
this Agreement,
including compliance with the request
of
other labor
organizations to engage in such activity. 	[Emphasis added.]
For the reasons discussed below, the Board finds that this language does not constitute
a clear and unmistakable waiver by CSEA
of
the BERA-protected rights
of
these employees to
engage in non-disruptive informational picketing. 10
Meaning and Scope
Of
the Term "Picketing"
As the decision
of
the ALJ and the parties' arguments reflect, assessment
of
whether
section 17.1 constituted a waiver
of
employees' right to engage in the conduct at issue
in
this
case depends in large part on the meaning
of
the word "picketing" and whether agreement to
that term in the waiver clause clearly and unmistakably waived employees' rights to engage in
the conduct at issue herein.
During the hearing, the ALJ stated,
I want legally supportable ... facts that will help me make my
decision as to what is picketing, number one, and two, whether or
not you picketed. And three, whether or not the contract
prohibits whatever that kind
of
picketing you did,
if
in fact you
did picketing.
As noted above, the District submitted dictionary definitions
of
picketing from Black's
Law Dictionary and Roberts Dictionary
of
Industrial Relations and argued that they
10 The Board does not examine or comment on the effects of the waiver clause at issue
herein with regard to other forms of picketing that are not presented on the facts of this case.
31

encompassed the conduct at issue in this case. Summarizing his understanding
of
the
definitions from
Black's
and Roberts, the ALJ stated,
Neither
of
the definitions set forth alternative circumstances that
are present in most picketing situations
....
Neither
of
them insists
that in order to have picketing, there must be (1) withholding
of
services, (2) blocking egress/ingress, (3) disruptive
or
violent
behavior, and (4) discouraging business with the employer. The
definitions describe picketing as a circumstance in which
employees demonstrate with signs
.or
placards in front
of
an
employer's establishment with an intent to notify the public a
labor dispute is in progress, with the ultimate intent
of
bringing
pressure on the employer to grant them whatever benefit they are
seeking. 	[Emphasis added.]
Rejecting
CSEA's
argument that non-disruptive informational picketing falls outside
the ambit
of
traditional labor picketing, the ALJ said, "this contention is not supported"
by
the
excerpts from Blacks and Roberts. However, the ALJ did not ultimately rely on the dictionary
definitions, but instead said, "The word 'picketing' is not so technical that it requires a special
in-house definition. It has a general, common meaning among the public, even when
used in a
labor relations sense." Finding an "absence
of
any adjectives limiting the breadth
of
the word
'picketing,"' the ALJ concluded that CSEA "agreed to refrain from picketing in all its various
forms" when it agreed to the language in Article 17 .1. The ALJ did not set forth the content or
source
of
the "general, common meaning among the public" on which he relied.
PERB is statutorily charged with initial, exclusive jurisdiction to interpret and enforce
the statutes it administers because
of
the Board's expertise in labor law and policy. (San Diego
Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12 [154 Cal.Rptr. 893]; South
Bay
Union
School Dist. v. Public Employment Relations Bd. (1991) 228 Cal.App.3d 502, 506 [297
Cal.Rptr. 135].) The Board does not fulfill that mandate by relying on dictionary definitions or
an undefined "general, common meaning among the public" when, as discussed in detail
32

below, dispositive language and concepts have been discussed and defined through decades of
labor law and history. The Board's duty here is to examine the circumstances of this case in
light of that precedent to determine whether inclusion of the word "picketing" in section 17 .1
clearly and unmistakably waived employees' rights to engage in the public governing board
meeting conduct.
Even assuming, for purposes of analysis, that reference to dictionary definitions such as
Roberts would be appropriate in this case, the ALJ's explained understanding of those
definitions does not accurately reflect the dictionary passages to which it refers. The text from
Roberts quoted by the District and ALJ recognizes the important distinction between non-
disruptive informational picketing and picketing designed to disrupt employer operations. 11
That distinction is critical to assessing whether inclusion of the word "picketing" in
section 17.1 constitutes a clear and unmistakable waiver in this case.
Moreover, the ALJ's understanding of the dictionary definition of picketing is
inconsistent with federal and state labor law and policy because, as discussed below, (1) the
presence of "signs or placards" is not dispositive of whether conduct constitutes picketing, and
(2) picketing designed to publicize the fact of a labor dispute is treated in law and public policy
11 Roberts also separately defines "informational picketing" as follows:
A form of publicity picketing. It is a protected activity under
Section 8(b )(7)( C) of the National Labor Relations Act for a
union to conduct informational picketing "for the purpose of
truthfully advising the public (including consumers) that an
employer does not employ members of, or have a contract with, a
labor organization." Informational picketing, thus, is legal if a
union's actions constitute an appeal or communication to the
public, and the information conveyed is accurate and truthful.
Such picketing is illegal when it disrupts, interferes, or curtails an
employer's business.
33

differently from picketing designed to disrupt an employer's operations. Factually, the
ALJ's
understanding
of
the dictionary definition is
of
limited relevance to this case because, here, the
employees were in front
of
City Hall, not the employer's establishment. There also was no
evidence the employees' conduct was intended to coerce concessions from the employer. 	In
addition, to define "picketing" as conduct intended to "bring pressure" on the employer would
set a vague standard, would conflict with fundamental public policy protecting public
employee expression, and would be at odds with the record evidence indicating that the
District's governing board "has always encouraged employees" to attend public meetings.
Even
if
Roberts dictionary is consulted for guidance, examination
of
the circumstances
of
this case in light
of
public policy expressed in labor precedent would be required before the
effect
of
including "picketing" in the waiver clause could be assessed. In language quoted by
the ALJ, the discussion in Roberts goes on to state:
The definitions [
of
picketing] have been developed from case law,
and what constitutes recognitional or organizational picketing ...
depends almost entirely on the particular circumstances
of
the
case.
Thus, regardless
of
whether the Board, as expert agency, examines this case in terms
of
fundamental labor law precedent or looks to Roberts dictionary for guidance, the same inquiry
is necessitated: to determine the status
of
the conduct at issue here and the effect
of
inclusion
of
"picketing" in the waiver clause, the circumstances
of
this case must be examined
in
light
of
case law exploring the concepts, definitions, and public policy regarding conduct alleged to be
"picketing." The ALJ quoted the language from Roberts dictionary mandating such an inquiry,
but the proposed decision failed to conduct it.
The Board finds that neither dictionary definition, nor the ALJ's written understanding
of those definitions, are dispositive. As the ALJ disclosed neither the source nor the content of
34

the "general, common meaning among the public" on which he ultimately relied, the Board
turns now to consider the circumstances
of
this case in light ofrelevant fundamental precedent.
Case Law Definitions
of
Picketing
A large body
of
precedent from federal courts and the NLRB has grappled with
"definitional problems" arising when the word "picketing" is applied to various combinations
of
conduct and expression. (See, e.g., NLRB
v.
United Furniture Workers
of
America (2d. Cir.
1964) 337 F.2d 936, 939 [57 LRRM 2347].)
12
Those cases reveal two fundamental reasons
why the word "picketing" has no clear meaning or scope unless it is interpreted in light
of
modifying language or contextual information from which its intended meaning can be
deduced.
First, clear, fundamental distinctions in law and policy have been drawn between forms
of
picketing and corresponding levels
of
protection based upon the intended or reasonably
perceived purpose
of
the activity or its effects on the employer.
13
Picketing for the purpose
of
12 The California Supreme Court has noted that private sector precedent provides
"reliable
if
analogous" authority when interests adjudicated in the private sector are, as here,
similar to those at issue in cases involving California's collective bargaining statutes. (Fire
Fighters Union v. City
of
Vallejo (1974)
12
Cal.3d 608, 616-617 [116 Cal.Rptr. 507].)
13
For example, federal courts and the NLRB have long distinguished between
recognitional, organizational, area-standards, and purely informational picketing, and have
given them different levels
of
protection. (See, e.g., NLRB v. Calkins (9 th Cir. 1999) 187 F.3d
1080 [161 LRRM 3121]; NLRB v. Drivers, Chauffeurs, and Helpers Union Local 639 (1960)
362 U.S. 274 [45 LRRM 2975]; Carpenters Local 2361 (1980) 248 NLRB 313 [103 LFRM
th
1444], aff'd without opinion (9 	Cir. 1981) 652 F.2d 61.) Picketing designed to inform the
public that an employer does not employ union members or does not have a contract with a
union is protected activity, unless it is designed to force recognition
of
the union by the
employer (absent union certification or a pending representation retition) and disrupts the
employer's operations. (See, e.g., NLRB v. Musicians Union (9t 	Cir. 1992) 960 F.2d 842, 845
[140 LRRM 2017], Labor Management Relations Act [LMRA] Section 8(b)(7)(A), (B), and
(C).) Picketing designed to inform the public that an employer does not pay wages in
accordance with area standards is protected regardless of effect on employer operations.
(Houston Building & Construction Trades Council (1962) 136 NLRB 321 [49 LRRM 1757].)
35

truthfully advising the public regarding the existence or nature
of
a labor dispute is treated very
differently from picketing with the purpose or effect
of
disrupting an employer's operations. 14
On the other hand, the definition
of
"picketing" cannot be reduced to a clear or
consistent description
of
physical conduct. Even the presence or absence
of
stereotypical
behavior associated with picketing, such as patrolling with placards - is not, alone, dispositive
regarding whether an activity constitutes "picketing" and,
if
so,
of
what variety. The same
physical conduct can lead to conflicting decisions, depending on other factors, such as the
participating employees' purpose, which must be determined by examining the circumstances
of
the entire case.
15
Absent qualifying language or information, a ban on "picketing" could refer to such
divergent factual scenarios as (a) a group
of
people walking around in the vicinity
of
an
Picketing to publicize unfair labor practices by the employer, to demand reinstatement
of
unlawfully discharged employees, or for the purpose
of
work preservation all are protected.
14 For example, when assessing informational picketing, the NLRB has distinguished
between "signal picketing" - designed to encourage unions or union members to avoid work
that benefits the picketed employer - which is impermissible regardless
of
effect
if
it is
conducted for a representational purpose, and "publicity picketing" - designed to effectuate a
consumer boycott - which is permissible unless it disrupts the employer's operations. 	(See,
e.g., NLRB v. International Brotherhood
of
Electrical Workers Local 3 (2d Cir. 1964) 339 F.2d
600; Carpenters Local 2133 (1965) 151 NLRB 1378, enforced (9 th Cir. 1966) 356 F.2d 464 [58
LRRM 1617].) See also, discussion regarding protected status
of
non-disruptive informational
picketing, supra.
15
The absence
of
placards has been treated by some courts as militating against a
finding of picketing (see, e.g., Danielson v. Local No. 99 (S.D.N.Y. 1974) (not published in
official reports) 87 LRRM 3005). However, the presence
of
a large number of employees near
an employer's business carrying no placards and posting no signs has been deemed picketing
by other courts. (See, e.g., Mine Workers Dist. 30 (1967) 163 NLRB 562, enforced by
unpublished decision (6 th Cir. 1968) [69 LRRM 2792].)
36

employer with placards; 16 (b) a group of people standing still without any placards near an
employer's premises who appear (at least in the determination of a court in later litigation) to
be assembled to encourage action against the employer 17; ( c) placement of signs in a snowbank
near an employer's premises while employees sit in cars nearby 18; and (d) placement of a sign
on an employer's trailer while employees distribute handbills nearby. 19 Determining whether
some of those factual scenarios constitute "picketing" has depended on various factors other
than physical conduct, such as the employees' subjective purpose and the effects of their
·cond uct or express10n. 20
Highlighting the fundamental legal significance of whether picketing is conducted with
the purpose, or has the effect, of disrupting an employer's operations, the Ninth Circuit has
overturned court orders that prohibit all picketing for a specified period to remedy unlawful
recognitional picketing. In Miller, the Ninth Circuit held that picketing could be enjoined only
to the extent that it perpetuated the effects of the unlawful picketing. To enjoin all picketing
would run afoul of employees' statutory and Constitutional rights. (Miller at p. 470, 472.)
16 See, e.g., Danielson v. Ladies Garment Workers Local 99 (S.D.N.Y. 1974) (not
published in official reports) [87 LRRM 3005].
17 See, e.g., Mine Workers Dist. 30 (Terry Elkhorn Mining Co.) (1967) 163 NLRB 562,
enforced by unpublished decision (6 th Cir. 1968) [69 LRRM 2792].)
18 See, e.g., Teamsters Local 182 (1962)135 NLRB 851, enforced (2d. Cir. 1963) 314
F.2d 53.
19 See Lawrence Typographical Union No. 570 (1968) 169 NLRB 279, enforced (10 th
Cir. 1968) 402 F.2d 452 [69 LRRM 2591].
2
°For example the dispositive factor for the court in Terry Elkhorn Mining Co., supra,
was whether the employees appeared to be gathered for the purpose of encouraging action
against the employer. (Ibid.)
37

The Ninth Circuit ruled similarly in Johansen v. Carpenters San Diego County District
Council (9 th Cir. 1984) 745 F.2d 1289 [117 LRRM 3028] (Johansen). There, the court
held
that a blanket "hiatus" injunction banning all picketing to remedy an unlawful secondary
boycott impermissibly infringed on employees' First Amendment speech rights. 	(Johansen at
p. 1295.) To avoid First Amendment problems, the court required that any remedial
ban be
narrowly tailored to prevent only unlawful picketing, not broadly proscribing all picketing.
Thus, a voluminous body
of
case law distinguishes the types
of
picketing and
corresponding levels
of
protection, focusing on whether the purpose
of
the picketing is to
provide information to the public, disrupt the employer's operations, or compel recognition
of
a union, and on the effects
of
the activity. At the same time, the word "picketing" applies to a
wide, and sometimes inconsistent, range
of
physical activity, including several kinds
of
activity
that do not involve the stereotypic image
of
employees carrying placards.
It must be remembered that the word "picketing" in this case exists in the context
of
a
collectively bargained labor agreement. "Picketing" in the labor context has been examined
and applied in the labor context by courts and the NLRB in myriad factual scenarios, as
discussed above. CSEA is correct that informational picketing is treated fundamentally
differently in the labor context than picketing with the purpose or effect
of
disrupting employer
operat10ns.·	
21
21
This distinction pervades labor policy in California. See, e.g., Code
of
Civil
Procedure section 527.3(a), which declares legal and prohibits a court from issuing an
injunction to prohibit the following activity:
(1) Giving publicity to, and obtaining or communicating
information regarding the existence of, or the facts involved in,
any labor dispute, whether by advertising, speaking, patrolling
any public street or any place where any person or persons may
38

The ALJ erred by relying on a
"a
general, common meaning among the public" as a
dispositive definition
of
"picketing" in this case for several reasons. First, the source and
content
of
the ALJ's understanding
of
this "general, common meaning" is not identified. He
offered a definition purportedly, but not actually, summarizing the definitions from the Roberts
and Blacks dictionaries, but it is not clear that he was referring even to his own definition when
he spoke
of
the "common meaning."
Second, "picketing" in "general," refers to a very wide range
of
conduct including
constitutionally protected, non-labor related activity, such as patrolling with placards
expressing personal or political opinions. (See, e.g., Paradise Hills Associates
v.
Procel (1991)
235 Cal.App.3d 1528, 1544
[1
Cal. Rptr. 2d 514] (homeowner carrying sign complaining
of
inferior building conditions was engaged in constitutionally protected picketing:	
"It
is
established that peaceful picketing or handbilling carried on in a location open generally to the
public is, absent other factors involving the purpose or manner
of
the picketing, protected by
the First Amendment." (Citations omitted.)) The District's own witness during the ALJ
hearing testified that he derived his understanding
of
the definition
of
picketing as "getting in
lawfully be, or by any other method not involving fraud, violence
or breach
of
the peace.
(2) Peaceful picketing or patrolling involving any labor dispute,
whether engaged in singly or in numbers.
(3) Assembling peaceably to do any
of
the acts specified in
paragraphs (1) and (2) or to promote lawful interests.
That provision does not apply to public employees. (Code Civ. Proc. sec. 527.3(d).)
Nevertheless, it demonstrates the strong public policy in California of distinguishing between
non-disruptive informational picketing, which is protected, and disruptive picketing, which can
be limited, consistent with the authorities cited, supra.
39

line and gathering as a group, holding a sign, card
...
" based on experience gleaned during his
"younger days
of
the Civil Rights movement .... "
In light
of
the extremely broad application
of
the word "picketing" and the differences
in legal status
of
various activities falling within the ambit
of
that generalized term, the
Board
finds that inclusion
of
the word "picketing," alone, in the collectively bargained provision at
issue here, is insufficient, absent modifying language or other information giving it a
discemable meaning, to constitute a clear and unmistakable waiver
of
the BERA-protected
right to engage in non-disruptive informational picketing.
Same Outcome Under Both Parties' Interpretations
of
Section 17
.1
Both parties presume that the agreement effected a successful waiver
of
at least some
picketing rights.22 Their dispute is over whether the waiver covers the conduct at issue here.
The prohibition
of
"picketing" in section 17
.1
is contained within a list
of
disruptive activities,
followed by the phrase
"or
other interference with the operations
of
the District." The parties
submitted careful and diametrically opposed textual-construction arguments regarding
the
scope
of
the waiver they claim was effected by that language. The crux
of
their interpretive
disagreement is over whether the phrase "or other interference with the operations
of
the
District" modifies the list
of
prohibited activities as CSEA contends, or constitutes an
independent catchall phrase, as the District argues.
However, in light
of
the foregoing discussion regarding the divergent definitions
of
the
word "picketing," the difference between the parties' suggested constructions is immaterial;
under either reading
of
the provision, the contractual language would fail to waive the
22
The Board does not affirm or dispute the validity of this presumption beyond
assessing the effect of section 17 .1 on employees' rights to engage in non-disruptive
informational picketing under the facts of this case.
40

employees' protected right to engage in the conduct at issue in this case.	
If
the District's
argument were accepted, inclusion
of
the word "picketing" in section 17
.1
of
the parties'
agreement would be, for the reasons discussed above, insufficient on its own to effect a clear
and unmistakable waiver
of
employees' BERA (and First Amendment) rights to engage
in
non-
disruptive informational picketing. Under CSEA's argument, the waiver would be narrowly
constrained to picketing that interferes with District operations and would not cover the
protected conduct at issue in this case.
Dispute Regarding Construction
of
Article
17
Separate from and in addition to the above ruling, the Board notes that ascertaining the
meaning
of
section
17
.1,
if
possible, would be helpful to resolution
of
the parties' dispute.
Questions regarding the precise meaning
of
the word "picketing" aside,
if
CSEA's
interpretation were correct that the waiver is limited by the phrase "or other interference with
the operations
of
the District," there clearly would be no waiver by contract
of
the right to
engage in the conduct at issue in this case. As the parties submitted no evidence
of
bargaining
history, the Board finds that the most reasonable way to discern the meaning
of
section i 7
.1
is
to examine the contractual language in light
of
the legal and historical context within which the
agreement was negotiated.
23
23 PERB precedent requires the Board to interpret collective bargaining agreements
according to their plain meaning
if
the language is clear. (Trustees
of
the California State
University (1996) PERB Decision No. 1174-H; Marysville Joint Unified School District
(1983) PERB Decision No. 314.)
If
the language is ambiguous, then the Board may consider
extrinsic evidence, such as bargaining history, to ascertain the meaning
of
contractual terms.
(Los Angeles Unified School District (1984) PERB Decision No. 407.) Here, as discussed
above, it is not clear what the word "picketing" means absent modifying language or
contextual information. However, as the parties submitted no evidence of bargaining history,
the Board must look to contextual information for assistance in understanding the meaning of
the contractual language at issue here. 
41

Legally, this agreement arose within a context where the distinction between
informational and disruptive picketing had long been recognized in a multitude
of
decisions by
the NLRB, the federal courts, and early PERB analyses, such as in Modesto. Historically, as
reflected in the plenitude
of
litigation resulting in the judicial and administrative decisions that
articulated the distinctions between various forms
of
picketing summarized, supra, a great
many labor negotiations and disputes involving various forms
of
conduct deemed to be
picketing have permeated the experiences
of
labor relations practitioners across the country for
decades.
Thus, section 17
.1
must be examined in a collective bargaining context wherein (1) the
waiver could potentially affect constitutionally and statutorily protected informational
picketing rights, (2) California and federal case law contain a strict requirement that, to
be
effective, a waiver
of
such rights must be "clear and unmistakable," (3) there is a fundamental
distinction in law and labor history between non-disruptive informational picketing and
picketing with the purpose or effect
of
disrupting employer operations, and (4) that basic
distinction has been firmly and consistently established across divergent factual scenarios both
in legal precedent and national historical labor-relations experience for decades as the courts
have defined "picketing" in light
of
fundamental labor policy and First Amendment
protections.
Reading "or other interference" as modifying "picketing" reflect<:
thi<:
r.hi<:.<:ir.
distinction 	labor law and policy between non-disruptive informational picketing and
picketing with the purpose or effect of disrupting an employer's operations. (Compare
NLRB v. Calkins at p. 1089 (truthful informational picketing protected) with Johansen at
p. 1294 (informational picketing designed to "signal" disruptive secondary action against
42

employer found unlawful); see also, Retail Clerks Local 324 (1962) 138 NLRB 478, review
denied (9 th Cir. 1964) 328 F.2d 431 [55 LRRM 2544].) Therefore, in accordance with this
classic distinction in labor law and policy reflected in the language
of
section 17 .1, the Board
finds the provision excludes non-disruptive informational picketing.24 This finding is
consistent with the grammatical structure
of
the sentence, gives effect to all the words
of
the
provision (consistent with the mandate in Civil Code sec. 1641 ), reflects the nature
of
the
rights and waiver requirements implicated
by
it, is consonant with the legal and historical
context within which the agreement arose and exists, and is required in order to give effect to
the waiver. Application
of
the canon
of
"noscitur a sociis," as argued
by
CSEA, corroborates
this understanding, because it reads picketing in a manner consistent with the other terms listed
in section 17 .1.
No Clear and Unmistakable Waiver
Whether the focus is placed on the meaning
of
the word "picketing" or on the
proper
reading
of
the entire waiver clause, one dispositive fact is apparent: there is substantial,
reasonable disagreement regarding meaning
of
the contractual language at issue in this case.
Accordingly, that language is ambiguous and does not constitute a clear and unmistakable
waiver
of
the BERA-protected right to engage in non-disruptive informational picketing.
Unfair Practice Allegations
It is undisputed that, here, the employees' governing board meeting actions were
conducted off school property, after school hours, and were peaceable and non-disruptive.
Having found no waiver
of
the union's right to engage in such non-disruptive informational
24 The Board makes no ruling or comment regarding the scope or effect of the waiver
clause relative to the subjects listed in section 17.1 other than "picketing."
43

picketing, the Board now turns to the substance
of
CSEA's
claim that the District's threat to
discipline employees for engaging in the picketing at issue herein violated
EERA
section 3543.S(a).25
Threatened Discipline for Non-Disruptive Informational Picketing
To demonstrate a violation
of
EERA section 3543.S(a), the charging party
must show
that: 	(1) the employee exercised rights under EERA; (2) the employer
had
knowledge
of
the
exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained
or
coerced
the employees because
of
the exercise
of
those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB
Decision
No. 89 (Carlsbad).)
Applying the Novato test here: 	(1) the CSEA members,
by
conducting non-disruptive
informational picketing, were, as discussed above, engaged in protected activity; (2) it
is
undisputed that the employer was aware
of
that protected activity; (3) that it threatened adverse
action in the form
of
discipline and withdrawal
of
contractual rights; and (4) that it
did so
because
of
the protected activity. Thus, under the Novato test, the District threatened to
25
EERA section 3543.S(a) provides:
It shall be unlawful for a public school employer to do any
of
the
following:
(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 ofrights guaranteed by this chapter. For
purposes
of
this subdivision, "employee" includes an applicant
for employment or reemployment.
44

impose reprisals against CSEA's members because
of
their exercise
of
rights protected
by
EERA, in violation
of
section 3543.S(a).26
The test for whether a respondent has interfered with the rights
of
employees under
EERA does not require that unlawful motive or actual harm be established, only a showing that
the employer's conduct "tends to or does result in some harm to employee rights granted under
EERA." (State
of
California (Department
of
Developmental Services) (1983) PERB Decision
No. 344-S, citing Carlsbad; Service Employees International Union, Local 99 (Kimmett)
(1979) PERB Decision No. 106.)
A threat
of
discipline for engaging in protected activity, here the activity
of
non-
disruptive informational picketing, "tends to or does result in some harm to employee rights
under EERA." The District's threat interfered both with employees' BERA-protected rights to
engage in such picketing and, more fundamentally, with the rights granted to employees by the
literal text
of
EERA - to "participate in the activities
of
the employee organizations
of
their
own choosing for the purpose
of
representation on all matters
of
employer-employee
relations." (EERA sec. 3543(a).) Moreover, here, it is undisputed that the number
of
employees participating in the protected activity
of
non-disruptive informational picketing was
substantially reduced after the District issued its letter threatening discipline for any employee
who continued the conduct. The District argues that this indicates the employees understood
that the prohibition against "picketing" in the contract included informational picketing
because, when apprised
of
imminent discipline, most ceased the offending conduct. Under all
26 Frequently, in cases arising under EERA section 3543.S(a), there is no direct
evidence of a "nexus" or causal connection between the adverse action and the charging
party's protected activity. Where, as here, there is evidence in writing that the adverse action
was undertaken in response to the protected activity, no such analysis of circumstantial
evidence of nexus is required. 
45

the circumstances
of
this case, however, the Board finds the more reasonable inference to
be
that the District's threats chilled employees' exercise
of
protected rights.
Once interference is shown, the District can offer a rebuttal by showing that its actions
were justified by operational necessity. However, since only non-disruptive informational
picketing at a public meeting was at issue here, there is no support for such an argument.
Accordingly, the Board reverses the decision
of
the ALJ and finds that, by issuing its
February 14, 2000, letter, the District threatened to impose reprisals for protected activity and
interfered with employees' exercise ofrights under EERA, thereby violating EERA
section 3543.5(a).
Threat to Discontinue Dues Deductions: Employees
For the reasons contained in the summary
of
the decision
of
the ALJ, supra, the Board
affirms the ALJ's conclusion that, under the reasoning
of
Fresno, the District violated BERA
section 3543.5(a) by threatening to discontinue dues deductions.
Threat to Discontinue Dues Deductions: CSEA
Regarding the allegation that the threatened discontinuance
of
dues deductions violated
CSEA' s rights under Section 3543 .5(b ), the Board disagrees with the ALJ that violation
of
Section 3543.5(b) can never be established by showing interference with the union's rights.
Interference can, depending on the facts
of
a case, effectively result in denial
of
the union's
rights. Charges asserting a Section 3543.5(b) violation based on allegations
of
interference
must be examined on their facts to determine the nature and effect
of
the alleged interference.
Longstanding Board precedent contemplates this approach. (See, e.g., the adopted ALJ's
decision in State of California (Franchise Tax Board) (1992) PERB Decision No. 954-S
(Franchise Tax Board), at p. 51, "The Board has found a section (b) violation where the
46

employer's conduct interfered with,
or
tended to interfere with, the
union's
ability and right to
represent bargaining unit employees" (citing San Francisco Unified School District (1978)
PERB Decision No. 75, and Santa Monica Community College District (1979) PERB Decision
No. 103).)
The ALJ correctly noted that Section 3543.5(b) provides that an employer cannot
"deny" an employee organization's rights. In recognition
of
that language, the Board in
Franchise Tax Board emphasized that
"a
showing
of
theoretical impact"
on
a
union's rights is
insufficient to state a Section 3 543 .5(b) violation. Here, the record reveals that the
District's
improper use
of
the collective bargaining agreement to threaten discipline for protected activity
chilled employees' exercise
of
their rights to engage in union-sponsored picketing.
Negotiation
of
an effective CBA is the fundamental means
by
which a union exercises
its
right
to represent its members. The employer's use
of
the CBA as a tooi to interfere with
employees' exercise
of
their protected rights effectively denied CSEA the right to represent
employees. Thus, the Board overrules the ALJ and finds that the District violated
EERA
section 3543.S(b) when it threatened to discontinue dues deductions.
Unilateral Change
The Board finds that neither
of
the parties, nor the decision
of
the ALJ, adequately
developed the issue
of
whether the District, by threatening to deprive employees
of
their
statutory rights to dues deductions, committed a unilateral change in a matter within
the scope
ofrepresentation. CSEA contends, in essence, that by threatening to discipline employees for
informational picketing, the District unilaterally changed the grounds for discipline without
affording CSEA notice or an opportunity to bargain.
47

In determining whether a party has violated EERA section 3543.5(c), PERB utilizes
either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations if:
(1) the employer implemented a change in policy concerning a matter within the scope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Walnut Valley Unified
School District (1981) PERB Decision No. 160; Grant.)
Grounds and procedures for discipline fall within the scope of representation under
EERA. 	(Arvin Union School District (1983) PERB Decision No. 300.) The District
announced its clear intent to discipline employees who engaged in non-disruptive,
informational picketing without affording CSEA notice or an opportunity to bargain. Although
discipline was not imposed, the District's clear statement of intent to implement the
disciplinary policy was sufficient to constitute implementation of the change in violation of its
duty to bargain with CSEA. (See Clovis Unified School District (2002) PERB Decision
No. 1504; Milpitas Unified School District (1997) PERB Decision No. 1234 (party need not
await actual implementation of policy change and should not rest on its rights).)
Accordingly, the Board reverses the decision of the ALJ and finds that the District
violated EERA section 3543.5(c) when it unilaterally implemented a change in grounds for
discipline by threatening to withdraw employees' dues deduction as punishment for engaging
in the protected activity of non-disruptive informational picketing.
48

ORDER
Based on the foregoing findings
of
fact, conclusions
oflaw,
and the entire record
in
this
case, it is found that the San Marcos Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.S(a), (b) and (c)
by
interfering with employees' exercise ofrights guaranteed by EERA; by threatening to impose
reprisals for protected activity;
by
threatening to cease dues deductions; and by unilaterally
changing the grounds for discipline when it threatened to impose discipline and cease dues
deduction in retaliation for employees' exercise
of
their rights to engage in non-disruptive
informational picketing.
Pursuant to EERA section 3541.S(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Threatening to impose discipline, cease dues deductions, or otherwise
impose reprisals because
of
employees' exercise
of
their rights to engage in non-disruptive
informational picketing;
2. 	Interfering with employees' exercise
of
their rights to engage in non-
disruptive informational picketing;
3. 	Threatening to cease employee organization dues deductions;
4. 	Unilaterally altering the grounds for discipline without affording CSEA
notice and an opportunity to bargain.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
49

1.	
Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all locations where notices are customarily posted, copies
of
the
notice attached hereto as an Appendix.
2. 	Written notification
of
the actions taken to comply with this Order shall
be made to the San Francisco Regional Director
of
the Public Employment Relations
Board
in
accordance with the director's instructions. Continue to report in writing to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on the California School Employees Association.
It is further Ordered that the proposed decision
of
the administrative law judge
in
Case
No. LA-CE-4214-E is hereby REVERSED in part, and AFFIRMED in part, consistent
with
the
discussion herein.
Member Whitehead joined in this Decision.
Member Baker's concurrence begins on page 51.
50

BAKER, Member, concurring: Although I reach the same conclusion as the majority, I
write separately to provide
my
rationale as well as to explain
my
differences.
Unlike the majority opinion, I find that this case may be decided relatively easily
by
application
of
well settled Public Employment Relations Board (PERB) precedent and
common sense. California School Employees Association (CSEA) alleges that the San Marcos
Unified School District (District) violated the Educational Employment Relations Act (EERA)
section 3543.S(a)
by
threatening to discipline employees who held informational signs
and
handed out flyers outside the civic center building which houses the District administrative
offices prior to school board meetings. The complaint also alleges that the District violated
EERA section 3543.S(b) and (c)
by
threatening to suspend
CSEA's
dues deductions and other
employees' rights under the collective bargaining agreement for the same conduct.
To demonstrate a violation
of
EERA section 3543.S(a), CSEA had to show that:
(1) employee picketing was an exercise ofrights under EERA; (2) the employer was aware
of
the picketing; and (3) the employer threatened to impose reprisals against the employees
because
of
the picketing. (Novato Unified School District (1982) PERB Decision No. 210;
Carlsbad Unified School District (1979) PERB Decision No. 89.)
Distribution
of
leaflets espousing CSEA' s view
of
negotiations accompanied
by
individuals marching with protest signs in front
of
a school district administration building is
"picketing" under either a layman's or experienced labor law expert's definition
of
the word.
Such informational picketing by employees on behalf
of
their exclusive representative is
conduct protected by the EERA as participation in an employee organization. (Modesto City
Schools (1983) PERB Decision No. 29l(Modesto); El Dorado Union High Schooi District
51

(1985) PERB Decision No. 537.)1 An employer's threats to discipline employees, withdraw
rights under the agreement and suspend union dues deductions are adverse actions. If the
District took the adverse actions because of the picketing, it would violate the EERA.
However, there may be no violation of EERA if CSEA has waived through the collective
bargaining agreement employee rights to engage in such conduct. Thus, the central question
raised is whether the agreement in section 17.1 waives the right to picket.
Section 17.1 of the agreement provides:
It is agreed and understood that there will be no strike, work
stoppage, slow-down, picketing or refusal or failure to fully and
faithfully perform job function and responsibilities, or other
interference with the operations of the District by CSEA or its
officers, agents, or members, during the term of the Agreement,
including compliance with the rnquest of other labor
organizations to engage in such activity.
Any waiver by CSEA must be expressed in clear and unmistakable terms, particularly
where the waiver of a statutory right is asserted. (Amador Valley Joint Union High School
District (1978) PERB Decision No. 74.) In this case, the waiver would take the form of a clear
prohibition of all picketing by employees or CSEA.
Applying common sense and Civil Code section 1645, I find that the agreement does
not prohibit all forms of picketing but rather only picketing that, like strikes and work
stoppages, interferes with the operation of the District. This clause prohibits CSEA officers,
agents, or members from refusing to perform their job functions and responsibilities or in other
ways interfering with operations of the District during the term of the agreement. It also
1 I find it unnecessary to resolve the question of whether Compton Unified School
District (1987) PERB Order No. IR-50 reversed Modesto on the question of whether EERA
incorporates the right of employees to engage in concerted activity. Informational picketing on
behalf of one's employee organization is clearly participation in the activities of the employee
organization protected under EERA section 3543.
52

prohibits CSEA from promoting such activity. To read the agreement as urged by the District
and administrative law judge would prohibit all picketing by employees regardless
of
its
impact on the District. This would allow the District to discipline employees who, for
example, participated in a retail clerk's picket line in front
of
a local supermarket. There is no
evidence that the parties intended such a consequence when they negotiated the agreement.
The activity in question here consisted
of
employees represented by CSEA picketing
outside the civic center building, which houses District headquarters, prior to two public
meetings
of
the District board. There was no evidence in the record that the employees'
activity interfered with the operations
of
the District. Rather the activity took place
off
school
property, after school hours, and without incident. No job functions or responsibilities went
underperformed or unperformed. Thus, the agreement does not prohibit the activity. Because
the conduct is protected by EERA, the District's letter threatening discipline and other changes
is a violation
of
EERA.
53

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-4214-E, California School
Employees Association v. San Marcos Unified School District, in which all parties had the
right to participate, it has been found that the San Marcos Unified School District (District)
violated the Educational Employment Relations Act (EERA), Government Code
section 3543.5(a), (b) and (c) by interfering with employees' exercise of rights guaranteed by
EERA; by threatening to impose reprisals for protected activity; by threatening to cease dues
deductions; and by unilaterally changing the grounds for discipline, when it threatened to
impose discipline and cease dues deduction in retaliation for employees' exercise of their
rights to engage in non-disruptive informational picketing.
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. CEASE AND DESIST FROM:
1. Threatening to impose discipline, cease dues deductions, or otherwise
impose reprisals because of employees' exercise of their rights to engage in non-disruptive
informational picketing;
2. Interfering with employees' exercise of their rights to engage in non-
disruptive informational picketing;
3. Threatening to cease employee organization dues deductions;
4. Unilaterally altering the grounds for discipline without affording CSEA
notice and an opportunity to bargain.
Dated: SAN MARCOS UNIFIED SCHOOL DISTRICT	---------
By: ---------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.