County of San Joaquin (PERB 1703M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF SAN JOAQUIN,
Charging Party, 	Case No. SA-CO-12-M
v . 	PERB Decision No. 1703-M
November 5, 2004
SAN JOAQUIN COUNTY CORRECTIONAL
OFFICERS ASSOCIATION,
Respondent.
Appearance: Renne, Sloan, Holtzman & Sakai by Jeffrey Sloan, Attorney, for County of San
Joaquin.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the County of San Joaquin (County) of a Board agent's
dismissal (attached) of the County's unfair practice charge. The charge alleged that the
San Joaquin County Correctional Officers Association (Association) violated the Meyers-
Milias-Brown Act (MMBA)' by engaging in a sick-out from December 8 through
December 11, 2002. The County alleged that this conduct constituted a violation of PERB
Regulation 32604(d) and the San Joaquin County Employer-Employee Relations Policy
Sections 12 and 13.3
MMBA is codified at Government Code section 3500, et seq.
PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
Section 12 covers Resolution of Impasses and section 13, Unfair Employer-Employee
Relations Practices.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COUNTY OF SAN JOAQUIN,
Charging Party,
V.
SAN JOAQUIN COUNTY CORRECTIONAL
OFFICERS ASSOCIATION,
Respondent.
Case No. SA-CO-12-M
PERB Decision No. 	1703-M
November 	5, 	2004
Appearance: Renne, Sloan, Holtzman & Sakai by Jeffrey Sloan, Attorney, for County of San
Joaquin.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the County of San Joaquin (County) of a Board agent's
dismissal (attached) of the County's unfair practice charge. The charge alleged that the
San Joaquin County Correctional Officers Association (Association) violated the Meyers-
Milias-Brown Act (MMBA)1 by engaging in a sick-out from December 8 through
December 11, 2002. The County alleged that this conduct constituted a violation of PERB
Regulation 32604(d)2 and the San Joaquin County Employer-Employee Relations Policy
Sections 12 and 13.3
1MMBA is codified at Government Code section 3500, et seq.
2PERB regulations are codified at California Code of Regulations, title 8, section
31001, et seq.
3Section 12 covers Resolution oflmpasses and section 13, Unfair Employer-Employee
Relations Practices.

By letter dated October 20, 2004, the County provided a new Notice of Appearance that
the County has changed its legal representative and is jointly represented by Jeffrey Sloan of
the law firm Renne, Sloan, Holtzman & Sakai LLP and by David Wooten, assistant County
counsel. In the October 20 letter, the County also requested that the unfair practice charge and
appeal be withdrawn with prejudice. Attached to the letter is a notice that the parties have
jointly agreed to a comprehensive settlement agreement covering this unfair practice charge
signed by David Wooten, representing that Gary Padula, president of the Association, agrees to
the request for withdrawal.
Having reviewed the record in this matter, the Board finds the withdrawal to be in the
best interests of the parties and to be consistent with the purposes of the MMBA. Accordingly,
the Board grants the withdrawal.
ORDER
The request by the County of San Joaquin to withdraw its appeal in Case No.
SA-CO-12-M is hereby GRANTED. Therefore, the appeal and unfair practice charge is
hereby WITHDRAWN WITH PREJUDICE.
Chairman Duncan and Member Neima joined in this Decision.
2
By letter dated October 20, 2004, the County provided a new Notice of Appearance that
the County has changed its legal representative and is jointly represented by Jeffrey Sloan of
the law firm Renne, Sloan, Holtzman & Sakai LLP and by David Wooten, assistant County
counsel. In the October 20 letter, the County also requested that the unfair practice charge and
appeal be withdrawn with prejudice. Attached to the letter is a notice that the parties have
jointly agreed to a comprehensive settlement agreement covering this unfair practice charge
signed by David Wooten, representing that Gary Padula, president of the Association, agrees to
the request for withdrawal.
Having reviewed the record in this matter, the Board finds the withdrawal to be in the
best interests of the parties and to be consistent with the purposes of the MMBA. Accordingly,
the Board grants the withdrawal.
ORDER
The request by the County of San Joaquin to withdraw its appeal in Case No.
SA-CO-12-M is hereby GRANTED. Therefore, the appeal and unfair practice charge is
hereby WITHDRAWN WITH PREJUDICE.
Chairman Duncan and Member Neima joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-6377
February 28, 2003
Harry G. Lewis, Attorney
Curiale, Dellaverson, Hirschfeld, Kelly & Kraemer
727 Sansome Street
San Francisco, CA 94111
Re: 	County of San Joaquin v. San Joaquin County Correctional Officers Association
Unfair Practice Charge No. SA-CO-12-M
DISMISSAL LETTER - 2" Amended Charge
Dear Mr. Lewis:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 13, 2002. The County of San Joaquin alleges that the
San Joaquin County Correctional Officers Association violated the Meyers-Milias-Brown Act
(MMBA)' by engaging in a "sick out" from December 8 through December 11, 2002.
I indicated to you in my attached letter dated January 10, 2003, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to January 31, 2003, the charge would be
dismissed.
I received a letter and a first amended charge on February 3, 2003 and a letter and a second
amended charge on February 13, 2003. The amended charges contained additional facts and
the letters contained additional argument which is summarized below.
The first amended charge reiterated that the Association sponsored a sick out by correctional
officers that violated MMBA section 3505, was an unfair practice under PERB Regulation
32604(d) and violated San Joaquin County Employer-Employee Relations Policy Sections 12
and 13. It added in the pertinent part of paragraph 3:
During the two weeks preceding the sick out, certain Association
representatives approached other correctional officers and
informed them that they would be engaging in a "sick out" from
December 8 through December 12 and instructed them not to
come to work on these days. These Association representatives
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
STATE OF CALIFORNIA 	c- =·=============='- -··=-,•====G=RA=Y=D=A=V=I==S,==·G=o=v=er=n=o=r	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-63 77
February 28, 2003
Harry G. Lewis, Attorney
Curiale, Dellaverson, Hirschfeld, Kelly & Kraemer
727 Sansome Street
San Francisco, CA 94111
Re: 	County of San Joaquin v. San Joaquin County Correctional Officers Association
Unfair Practice Charge No. SA-CO-12-M
DISMISSAL LETTER - 2nd Amended Charge
Dear Mr. Lewis:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 13, 2002. The County of San Joaquin alleges that the
San Joaquin County Correctional Officers Association violated the Meyers-Milias-Brown Act
(MMBA)1 by engaging in a "sick out" from December 8 through December 11, 2002.
I indicated to you in my attached letter dated January 10, 2003, that the above-referenced
charge did not state a prima facie case. You were advised that, if there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. You were further advised that, unless you amended the charge
to state a prima facie case or withdrew it prior to January 31, 2003, the charge would be
dismissed.
I received a letter and a first amended charge on February 3, 2003 and a letter and a second
amended charge on February 13, 2003. The amended charges contained additional facts and
the letters contained additional argument which is summarized below.
The first amended charge reiterated that the Association sponsored a sick out by correctional
officers that violated MMBA section 3505, was an unfair practice under PERB Regulation
32604(d) and violated San Joaquin County Employer-Employee Relations Policy Sections 12
and 13. It added in the pertinent part of paragraph 3:
During the two weeks preceding the sick out, certain Association
representatives approached other correctional officers and
informed them that they would be engaging in a "sick out" from
December 8 through December 12 and instructed them not to
come to work on these days. These Association representatives
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

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Page2
told the other correctional officers that they would be paid for
their absences so long as they obtained doctors notes and advised
them on how to obtain such notes. At least one of the
Association representatives specifically indicated that the "sick
out" was being coordinated by the Association and that he was
acting at the direction of the Association President Gary Padula.
The 1" amended charge also stated in paragraph 7 that the parties had participated in mediation
with State Mediator Paul Roose from February 26 to July 22, 2002. When mediation was
unsuccessful, the parties mutually agreed to submit the matter to fact finding. The fact-finding
hearing commenced on January 28, 2003 and was expected to be completed on February 3,
Finally in paragraph 8, the 1" amended charge reiterates that the Association provided a
memorandum to its members urging them to return to work as required by section 13(1)(C) of
the County Employer-Employee Relations Policy. The 1" amended charge then adds that:
The County alleges that this memorandum was either not sent at
all to the membership, or not sent on a timely basis.
A letter accompanying the 1" amended charge argues that the above-described allegations are
sufficient to demonstrate that the Association was responsible for the sick out and that this
conduct was a violation of the Association's duty to participate in good faith in the County's
impasse procedures. The letter continues that the Association's failure at once to order its
members to return to work also constituted a violation of the County Policy.
The second amended charge rewrites paragraph 3 to read:
During the two weeks preceding the sick out, certain
Association representatives, including Correctional Sergeant
Steven Williams, approached other correctional officers and
informed them that the Association had authorized a "sick out"
from December 8 through December 12 and that Association
members should stay home from work on those dates.
Williams and other Association representatives told the other
correctional officers that they would be paid for their absences so
long as they obtained doctors notes and advised them on how to
obtain such notes.
On at least one occasion, Williams specifically indicated that
the message about the "sick out" came directly from Association
President Gary Padula.
(
told the other correctional officers that they would be paid for
their absences so long as they obtained doctors notes and advised
them on how to obtain such notes. At least one of the
Association representatives specifically indicated that the "sick
out" was being coordinated by the Association and that he was
acting at the direction of the Association President Gary Padula.
The 1st amended charge also stated in paragraph 7 that the parties had participated in mediation
with State Mediator Paul Roose from February 26 to July 22, 2002. When mediation was
unsuccessful, the parties mutually agreed to submit the matter to fact finding. The fact-finding
hearing commenced on January 28, 2003 and was expected to be completed on February 3,
2003.
,
2003.
Finally in paragraph 8, the 1st amended charge reiterates that the Association provided a
memorandum to its members urging them to return to work as required by section 13(1)(C) of
the County Employer-Employee Relations Policy. The 1st amended charge then adds that:
The County alleges that this memorandum was either not sent at
all to the membership, or not sent on a timely basis.
A letter accompanying the 1st amended charge argues that the above-described allegations are
sufficient to demonstrate that the Association was responsible for the sick out and that this
conduct was a violation of the Association's duty to participate in good faith in the County's
impasse procedures. The letter continues that the Association's failure at once to order its
members to return to work also constituted a violation of the County Policy.
The second amended charge rewrites paragraph 3 to read:
a.	a. During the two w,eeks preceding the sick out, certain
Association representatives, including Correctional Sergeant
Steven Williams, approached other correctional officers and
informed them that the Association had authorized a "sick out"
from December 8 through December 12 and that Association
members should stay home from work on those dates.
·
b.	b. Williams and other Association representatives told the other
correctional officers that they would be paid for their absences so
long as they obtained doctors notes and advised them on how to
obtain such notes.
c.	c. On at least one occasion, Williams specifically indicated that
the message about the "sick out" came directly from Association
President Gary Padula.

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Page3
Charging party also provided a letter that argues that County Sanitation District No. 2 v. Los
Angeles County Employees Assn. (1985) 38 Cal.3d 564 does not address the issue of whether
a strike during the pendency of an impasse procedure is an illegal pressure tactic and thus an
unfair practice. The letter continues that the MMBA under PERB's administration is like the
Educational Employment Relations Act (EERA) under which a strike during impasse
procedure could evidence the unfair practice of refusing to participate in good faith in the
impasse procedures. (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 8.) The
letter also argues that the sick out was an unfair practice as a partial strike. (El Dorado Union
High School District (1985) PERB Decision No. 537.) Finally, the letter asserts that the sick
out was an unfair practice as a violation of the County's Employer-Employee Relations Policy
that specifically prohibits strikes.
The 2" amended charge and accompanying argument raise 5 issues. First, is there sufficient
information to find that the Association was responsible for instigating the sick out? Second,
regardless of responsibility for the strike, did the Association's failure to send out "at once" a
memorandum to its members regarding the sick out violate the County's Employer-Employee
Relations Policy? Third, if the Association was responsible for the sick out, was it an unfair
practice as a violation of the Association's duty to participate in the impasse procedures?
Fourth, was the sick out an unfair practice as a partial strike? Fifth, was the sick out an unfair
practice as a violation of the County's Employer-Employee Relations Policy?
Association Responsibility
PERB will apply common law agency principles to determine whether an individual acts as an
"agent" of the employee organization. (Compton Community College District (1989) PERB
Decision No. 728.) A union will not be held liable unless one or more persons in authority
were responsible for what transpired. (Longshoremen and Warehousemen v. Hawaiian
Pineapple Co. (9th Cir. 1955) 226 F.2d 875.) Thus, the charge must demonstrate that agents of
the union participated in, ratified, instigated, encouraged, condoned, or in some way directed
the action for the union to be held liable. (Compton Community College District (1989) PERB
Decision No. 728.) The burden of proving such an agency relationship is on the charging
party. (Mount Diablo Unified School District (1978) PERB Decision No. 44.)
Here charging party alleges that Correctional Sergeant Steven Williams approached other
correctional officers and informed them that the Association had authorized a "sick out" from
December 8 through December 12, that Association members should stay home from work on
those dates, that they would be paid for their absences so long as they obtained doctors notes,
advised them on how to obtain such notes, and on at least one occasion, specifically indicated
that the message about the "sick out" came directly from Association President Gary Padula.
EERA is codified at Government Code section 3540 et seq.
The charge also alleges that other Association representatives told correctional
officers that they would be paid for their absences so long as they obtained doctors notes and
advised them on how to obtain such notes. Without the identity of these representatives, it is
impossible to determine whether they were agents of the Association. In addition, the
(
Charging party also provided a letter that argues that County Sanitation District No. 2 v. Los
Angeles County Employees Assn. (1985) 38 Cal.3d 564 does not address the issue of whether
a strike during the pendency of an impasse procedure is an illegal pressure tactic and thus an
unfair practice. The letter continues that the MMBA under PERB' s administration is like the
Educational Employment Relations Act (EERA)2 under which a strike during impasse
procedure could evidence the unfair practice of refusing to participate in good faith in the
impasse procedures. (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 8.) The
letter also argues that the sick out was an unfair practice as a partial strike. (El Dorado Union
High School District (1985) PERB Decision No. 537.) Finally, the letter asserts that the sick
out was an unfair practice as a violation of the County's Employer-Employee Relations Policy
that specifically prohibits strikes.
The 2 nd amended charge and accompanying argument raise 5 issues. First, is there sufficient
information to find that the Association was responsible for instigating the sick out? Second,
regardless of responsibility for the strike, did the Association's failure to send out "at once" a
memorandum to its members regarding the sick out violate the County's Employer-Employee
Relations Policy? Third, if the Association was responsible for the sick out, was it an unfair
practice as a violation of the Association's duty to participate in the impasse procedures?
Fourth, was the sick out an unfair practice as a partial strike? Fifth, was the sick out an unfair
practice as a violation of the County's Employer-Employee Relations Policy?
Association Responsibility
PERB will apply common law agency principles to determine whether an individual acts as an
"agent" of the employee organization. (Compton Community College District (1989) PERB
Decision No. 728.) A union will not be held liable unless one or more persons in authority
were responsible for what transpired. (Longshoremen and Warehousemen v. Hawaiian
Pineapple Co. (9th Cir. 1955) 226 F.2d 875.) Thus, the charge must demonstrate that agents of
the union participated in, ratified, instigated, encouraged, condoned, or in some way directed
the action for the union to be held liable. (Compton Community College District (1989) PERB
Decision No. 728.) The burden of proving such an agency relationship is on the charging
party. (Mount Diablo Unified School District (1978) PERB Decision No. 44.)
Here charging party alleges that Correctional Sergeant Steven Williams approached other
correctional officers and informed them that the Association had authorized a "sick out" from
December 8 through December 12, that Association members should stay home from work on
those dates, that they would be paid for their absences so long as they obtained doctors notes,
advised them on how to obtain such notes, and on at least one occasion, specifically indicated
that the message about the "sick out" came directly from Association President Gary Padula.3
2 BERA is codified at Government Code section 3540 et seq.
3 The charge also alleges that other Association representatives told correctional
officers that they would be paid for their absences so long as they obtained doctors notes and
advised them on how to obtain such notes. Without the identity of these representatives, it is
impossible to determine whether they were agents of the Association. In addition, the

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Sergeant Williams is not identified as an Association officer or official so it must be assumed
that he does not hold such office. There is no evidence that Sergeant Williams was acting for
the Association under either a theory of actual or apparent authority. Thus, Sergeant Williams
cannot be found to be an agent of the Association. (Los Angeles Community College District
(1982) PERB Decision No. 252; Aladdin Hotel Corp. (1977) 229 NLRB 499 (The mere fact
that an employee prominent in the organizing campaign may have engaged in unlawful
conduct is not alone sufficient to establish agency.).)
There are no allegations that the Association's officers participated in the sick out or in any
other way supported it. The only other allegations related to agency concern President
Padula's statements to the press. As discussed in the Warning Letter, these statements merely
recognized that a job action was in progress and attempted to explain it to the public.
Therefore, there has not been a showing that the Association was responsible for the sick out
and the allegation must be dismissed
Association's Memorandum to its Members
Section 13(1)(C) of the County's Employer-Employee Relations Policy reads in pertinent part:
Upon notification confirmed in writing by the County to the
recognized employee organization that certain of its members are
engaged in a work stoppage, the recognized employee
organization shall, at once, in writing direct such members to
return to work immediately. Such notification by the recognized
employee organization shall not constitute an admission by it that
a strike is in progress or has taken place or that any particular
member is or has engaged in a work stoppage. The notification
shall be made solely on the request of the County. In the event
that a work stoppage occurs, the recognized employee
organization agrees to take all reasonably effective and
affirmative action to secure the members return to work as
promptly as possible. Failure of the recognized employee
organization to issue such order and or take such action shall be
considered in determining whether or not the recognized
employee organization caused or authorized the strike.
Charging party asserts that the Association failed to comply with its obligation under the
policy to "at once, in writing direct such members to return to work immediately." This is
based on a statement in the charge that "The County alleges that this memorandum was either
not sent at all to the membership, or not sent on a timely basis."
statements attributed to these representatives do not advocate that officers participate in the
sick out, but only that they would receive sick leave if they provided a doctor's note and how
to obtain such notes.
Sergeant Williams is not identified as an Association officer or official so it must be assumed
that he does not hold such office. There is no evidence that Sergeant Williams was acting for
the Association under either a theory of actual or apparent authority. Thus, Sergeant Williams
cannot be found to be an agent of the Association. (Los Angeles Community College District
(1982) PERB Decision No. 252; Aladdin Hotel Corp. (1977) 229 NLRB 499 (The mere fact
that an employee prominent in the organizing campaign may have engaged in unlawful
conduct is not alone sufficient to establish agency.).)
There are no allegations that the Association's officers participated in the sick out or in any
other way supported it. The only other allegations related to agency concern President
Padula' s statements to the press. As discussed in the Warning Letter, these statements merely
recognized that a job action was in progress and attempted to explain it to the public.
Therefore, there has not been a showing that the Association was responsible for the sick out
and the allegation must be dismissed.
Association's Memorandum to its Members
Section 13(1 )(C) of the County's Employer-Employee Relations Policy reads in pertinent part:
Upon notification confirmed in writing by the County to the
recognized employee organization that certain of its members are
engaged in a work stoppage, the recognized employee
organization shall, at once, in writing direct such members to
return to work immediately. Such notification by the recognized
employee organization shall not constitute an admission by it that
a strike is in progress or has taken place or that any particular
member is or has engaged in a work stoppage. The notification
shall be made solely on the request of the County. In the event
that a work stoppage occurs, the recognized employee
organization agrees to take all reasonably effective and
affirmative action to secure the members return to work as
promptly as possible. Failure of the recognized employee
organization to issue such order and or take such action shall be
considered in determining whether or not the recognized
employee organization caused or authorized the strike.
Charging party asserts that the Association failed to comply with its obligation under the
policy to "at once, in writing direct such members to return to work immediately." This is
based on a statement in the charge that "The County alleges that this memorandum was either
not sent at all to the membership, or not sent on a timely basis."
statements attributed to these representatives do not advocate that officers participate in the
sick out, but only that they would receive sick leave if they provided a doctor's note and how
to obtain such notes.

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(
It is unclear whether this allegation is sufficient to demonstrate that the Association failed to
comply with the County rule because it does not allege a fact but rather one fact and in the
alternative a contradictory fact and a legal conclusion. PERB Regulation 32615 requires:
(a) A charge may be filed alleging that an unfair practice or
practices have been committed. The charge shall be in writing,
signed under penalty of perjury by the party or its agent with the
declaration that the charge is true, and complete to the best of the
charging party's knowledge and belief, and contain the following
information:
(5) A clear and concise statement of the facts and conduct
alleged to constitute an unfair practice;
The allegation does not appear to be a clear and concise statement of facts. However, it is
unnecessary to decide whether the allegation meets the requirement of the regulations because
it is legally insufficient to state a prima facie violation of the MMBA. That is, even assuming
that the Association refused to send out the memorandum, such conduct is not an unfair
practice based on the reasons that follow.
As mentioned in the Warning Letter, under the MMBA, employees and their unions have a
right to strike unless and until it is clearly demonstrated that such a strike creates a substantial
and imminent threat to the health or safety of the public. (County Sanitation District No. 2 v.
Los Angeles County Employees Assn. (1985) 38 Cal.3d 564.)" Charging party argues that this
ruling does not prohibit PERB from finding the sick out to be an unfair practice. MMBA
section 3509 reads in pertinent part:
(b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 shall be processed as an unfair practice charge by
the board. The initial determination as to whether the charge of
unfair practice is justified and, if so, the appropriate remedy
necessary to effectuate the purposes of this chapter, shall be a
matter within the exclusive jurisdiction of the board. The board
shall apply and interpret unfair labor practices consistent with
existing judicial interpretations of this chapter.
*Board decisions under the Educational Employment Relations Act have found that the
right to strike is limited based in part on relevant Education Code provisions. (Compton
Unified School District (1987) PERB Order No. IR-50; Sacramento City Unified School
District (1987) PERB Order No. IR-49.)
It is unclear whether this allegation is sufficient to demonstrate that the Association failed to
comply with the County rule because it does not allege a fact but rather one fact and in the
alternative a contradictory fact and a legal conclusion. PERB Regulation 32615 requires:
(a) A charge may be filed alleging that an unfair practice or
practices have been committed. The charge shall be in writing,
signed under penalty of perjury by the party or its agent with the
declaration that the charge is true, and complete to the best of the
charging party's knowledge and belief, and contain the following
information:
(5) A clear and concise statement of the facts and conduct
alleged to constitute an unfair practice;
The allegation does not appear to be a clear and concise statement of facts. However, it is
unnecessary to decide whether the allegation meets the requirement of the regulations because
it is legally insufficient to state a prima facie violation of the MMBA. That is, even assuming
that the Association refused to send out the memorandum, such conduct is not an unfair
practice based on the reasons that follow. ·
As mentioned in the Warning Letter, under the MMBA, employees and their unions have a·
right to strike unless and until it is clearly demonstrated that such a strike creates a substantial
and imminent threat to the health or safety of the public. (County Sanitation District No. 2 v.
Los Angeles County Employees Assn. (1985) 38 Cal.3d 564.)4 Charging party argues that this
ruling does not prohibit PERB from finding the sick out to be an unfair practice. MMBA
section 3509 reads in pertinent part:
·
(b) A complaint alleging any violation of this chapter or of any
rules and regulations adopted by a public agency pursuant to
Section 3507 shall be processed as an unfair practice charge by
the board. The initial determination as to whether the charge of
unfair practice is justified and, if so, the appropriate remedy
necessary to effectuate the purposes of this chapter, shall be a
matter within the exclusive jurisdiction of the board. The board
shall apply and interpret unfair labor practices consistent with
existing judicial interpretations of this chapter.
4 Board decisions under the Educational Employment Relations Act have found that the
right to strike is limited based in part on relevant Education Code provisions. (Compton
Unified School District (1987) PERB Order No. IR-50; Sacramento City Unified School
District (1987) PERB Order No. IR-49.)

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Subsection (b) describes an unfair practice as "any violation of this chapter or of any rules and
regulations adopted by a public agency pursuant to Section 3507..." It goes on to require that
PERB find conduct to be an unfair practice consistent with existing judicial interpretations of
the MMBA. It would be contrary to these Legislative mandates to find a strike to be an unfair
practice where the California Supreme Court has determined that it did not violate either the
MMBA or the common law. This is especially true given the direction provided in MMBA
section 3510(a): "The provisions of this chapter shall be interpreted and applied by the board
in a manner consistent with and in accordance with judicial interpretations of this chapter."
Charging party argues that the Court in Sanitation Workers did not consider the facts as
presented by this case, i.e. an employee organization striking while it is required to participate
in good faith in the impasse resolution procedures. Charging party is correct that the strike in
Sanitation Workers did not occur during impasse procedures. However, the act of striking, in
the absence of other indicia of bad faith, does not demonstrate a violation of the Association's
obligation to participate in the impasse procedures in good faith. (National Labor Relations
Board v. Insurance Agents' International Union, AFL-CIO (1960) 361 U.S. 477) There the
court found that "...there is simply no inconsistency between the application of economic
pressure and good-faith collective bargaining."
This is consistent with the treatment of this issue by the California Supreme Court under
EERA which provides for mandatory impasse procedures. In San Diego Teachers Assn. v.
Superior Court (1979) 24 Cal.3d 1 the Court found that "if [ the Association's] strike were held
legal it would not constitute a failure to negotiate in good faith. As an illegal pressure tactic,
however, its happening could support a finding that good faith was lacking." (emphasis in the
original.)" Therefore striking during the statutorily mandated impasse procedure might support
a finding of bad faith but by itself is insufficient to demonstrate bad faith. Here, there is no
other indicia of bad faith participation by the Association and thus the sick out was not an
unfair practice.
It would be antithetical to the employees' right to participate in a legal strike under the MMBA
to require at the same time their union to order the employees back to work. Thus, if the sick
out was not illegal then Section 13(1)(C) of the County's Employer-Employee Relations Policy
requiring the Association to order its members back to work is inconsistent with the MMBA.
MMBA section 3509(f) states:
(f) The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a public
agency if that rule or regulation is itself in violation of this
chapter. This subdivision shall not be construed to restrict or
The court's decision was premised on the determination that the statutory impasse
procedures were included in EERA for the purposed of heading off strikes in the public
schools. Under MMBA there is no statutory impasse procedure. Rather the employer may
under section 3505 and 3507 adopt reasonable rules for such procedures.
Subsection (b) describes an unfair practice as "any violation of this chapter or of any rules and
regulations adopted by a public agency pursuant to Section 3507 ... " It goes on to require that .
PERB find conduct to be an unfair practice consistent with existing judicial interpretations of
the MMBA. It would be contrary to these Legislative mandates to find a strike to be an unfair
practice where the California Supreme Court has determined that it did not violate either the
MMBA or the common law. This is especially true given the direction provided in MMBA
section 3510(a): "The provisions of this chapter shall be interpreted and applied by the board
in a manner consistent with and in accordance with judicial interpretations of this chapter."
Charging party argues that the Court in Sanitation Workers did not consider the facts as
presented by this case, i.e. an employee organization striking while it is required to participate
in good faith in the impasse resolution procedures. Charging party is correct that the strike in
Sanitation Workers did not occur during impasse procedures. However, the act of striking, in
the absence of other indicia of bad faith, does not demonstrate a violation of the Association's
obligation to participate in the impasse procedures in good faith. (National Labor Relations
Board v. Insurance Agents' International Union, AFL-CIO (1960) 361 U.S. 477) There the
court found that " ... there is simply no inconsistency between the application of economic
pressure and good-faith collective bargaining."
·
This is consistent with the treatment of this issue by the California Supreme Court under
BERA which provides for mandatory impasse procedures. In San Diego Teachers Assn. v.
Superior Court (1979) 24 Cal.3d 1 the Court found that "if [the Association's] strike were held
legal it would not constitute a failure to negotiate in good faith. As an illegal pressure tactic,
however, its happening could support a finding that good faith was lacking." (emphasis in the
original.)5 Therefore striking during the statutorily mandated impasse procedure might support
a finding of bad faith but by itself is insufficient to demonstrate bad faith. 	Here, there is no
other indicia of bad faith participation by the Association and thus the sick out was not an
unfair practice.
It would be antithetical to the employees' right to participate in a legal strike under the MMBA
to require at the same time their union to order the employees back to work. Thus, if the sick
out was not illegal then Section 13(l)(C) of the County's Employer-Employee Relations Policy
requiring the Association to order its members back to work is inconsistent with the MMBA.
MMBA section 3509(f) states:
(f) The board shall not find it an unfair practice for an employee
organization to violate a rule or regulation adopted by a public
agency if that rule or regulation is itself in violation of this
chapter. This subdivision shall not be construed to restrict or
5 The court's decision was premised on the determination that the statutory impasse
procedures were included in BERA for the purposed of heading off strikes in the public
schools. Under MMBA there is no statutory impasse procedure. Rather the employer may
under section 3505 and 3507 adopt reasonable rules for such procedures.

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(
expand the board's jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive.
Because, under the circumstances of this case, the rule itself violates the MMBA, the
Association's failure to comply with the rule is not an unfair practice. Accordingly, this
allegation must be dismissed.
If one assumes for sake of argument that it was demonstrated that the Association was
responsible for the sick out, then three questions remain: was the sick out an unfair practice as
a violation of the Association's duty to participate in the impasse procedures, as a partial
strike, or as a violation of the County's Employer-Employee Relations Policy.
Sick Out as Unfair Practice
As discussed above, based on Sanitation Workers and Insurance Agents the sick out was not an .
unfair practice under the MMBA. Thus, the Association did not commit an unfair practice
even if it was responsible for the sick out.
Sick Out as Partial Strike
Next the charging party argues that the sick out should be an unfair practice as a partial strike.
It has long been recognized that a partial strike where employees attempt to strike and work at
the same time is illegal under the EERA. (Los Angeles Unified School District (1990) PERB
Decision No. 803.) However, charging party was unable to provide any authority for the
proposition that a sick out was the equivalent of a partial strike. Nor was I able to locate any
authority supporting this theory. Logically, a sick out is not a partial strike because the
employees are not at the work location doing a portion of the job. Rather, they are away from
the job site and substitutes are performing their work. Thus, this theory does not state a prima
facie violation of an unfair practice under the MMBA.
Sick Out as Violation of County Rule
Finally the charging party asserts that the Association's conduct should be an unfair practice
because it violates the County's Employer-Employee Relations Policy against striking.
The County Policy section 13(1)(C) reads in pertinent part:
It is recognized by the County and all recognized employee
organizations that strikes, work stoppages, lock outs and other
forms of concerted work action are inimical to stable, harmonious
employer-employee relations and that all parties will strive
towards a working environment which will preclude
consideration of such actions. No employee or employee
organization, its representatives or member shall cause, engage,
or participate in, instigate, or encourage concerted acts of work
expand the board's jurisdiction or authority as set forth in
subdivisions (a) to (c), inclusive.
Because, under the circumstances of this case, the rule itself violates the MMBA, the
Association's failure to comply with the rule is not an unfair practice. Accordingly, this
allegation must be dismissed.
If one assumes for sake of argument that it was demonstrated that the Association was
responsible for the sick out, then three questions remain: was the sick out an unfair practice as
a violation of the Association's duty to participate in the impasse procedures, as a partial
strike, or as a violation of the County's Employer-Employee Relations Policy.
Sick Out as Unfair Practice
As discussed above, based on Sanitation Workers and Insurance Agents the sick out was not an-
unfair practice under the MMBA. Thus, the Association did not commit an unfair practice
even if it was responsible for the sick out.
Sick Out as Partial Strike
Next the charging party argues that the sick out should be an unfair practice as a partial strike.
It has long been recognized that a partial strike where employees attempt to strike and work at
the same time is illegal under the EERA. (Los Angeles Unified School District (1990) PERB
Decision No. 803.) However, charging party was unable to provide any authority for the
proposition that a sick out was the equivalent of a partial strike. Nor was I able to locate any
authority supporting this theory. Logically, a sick out is not a partial strike because the
employees are not at the work location doing a portion of the job. Rather, they are away from
the job site and substitutes are performing their work. Thus, this theory does not state a prima
facie violation of an unfair practice under the MMBA.
Sick Out as Violation of County Rule
Finally the charging party asserts that the Association's conduct should be an unfair practice
because it violates the County's Employer-Employee Relations Policy against striking.
The County Policy section 13(1 )(C) reads in pertinent part:
It is recognized by the County and all recognized employee
organizations that strikes, work stoppages, lock outs and other
forms of concerted work action are inimical to stable, harmonious
employer-employee relations and that all parties will strive
towards a working environment which will preclude
consideration of such actions. No employee or employee
organization, its representatives or member shall cause, engage,
or participate in, instigate, or encourage concerted acts of work

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SA-CO-12-M
February 28, 2003
Page 8
(
stoppage or strikes, however, under no circumstances shall an
employee's statutory or constitutional rights be unlawfully
infringed.
Because Sanitation Workers gives employees a right to strike under the circumstances of this
case, the policy, constrained by its own language from infringing on employee rights, does not
prohibit the strike. Thus, participation in a legal strike does not violate the policy.
Therefore, I am dismissing the charge based on the facts and reasons contained in this letter
and my letter of January 10, 2003.
Right to Appeal
Pursuant to PERB Regulations," you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of Regulation 32135(d), provided the filing party also places the
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b).)
. PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
stoppage or strikes, however, under no circumstances shall an
employee's statutory or constitutional rights be unlawfully
infringed.
Because Sanitation Workers gives employees a right to strike under the circumstances of this
case, the policy, constrained by its own language from infringing on employee rights, does not
prohibit the strike. Thus, participation in a legal strike does not violate the policy:
Therefore, I am dismissing the charge based on the facts and reasons contained in this letter
and my letter of January 10, 2003.
Right to Appeal
Pursuant to PERB Regulations, 6 you may obtain a review of this dismissal of the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service of this
dismissal. (Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies of all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on tlie postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close of business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements of Regulation 32135(d), provided the filing party also places the
original, together with the required number of copies and proof of service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Regulation 32635(b ).)
6 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

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(
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
Robert Thompson
General Counsel
Attachment
cc: Paul Q. Goyette, Attorney
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
Robert Thompson
General Counsel
Attachment
cc: Paul Q. Goyette, Attorney

STATE OF CALIFORNIA 	GRAY DAVIS, Governor	( 	.. _
- 	============
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-637	
PERB
January 10, 2003
Harry G. Lewis, Attorney
Curiale, Dellaverson, Hirschfeld, Kelly & Kraemer
727 Sansome Street
San Francisco, CA 94111
Re: 	County of San Joaquin v. San Joaquin County Correctional Officers Association
Unfair Practice Charge No. SA-CO-12-M
WARNING LETTER
Dear Mr. Lewis:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 13, 2002. The County of San Joaquin alleges that the
San Joaquin County Correctional Officers Association violated the Meyers-Milias-Brown Act
(MMBA)' by engaging in a "sick out" from December 8 through December 11, 2002.
The County employs approximately 200 Correctional officers and Sergeants in a bargaining
unit exclusively represented by the Association. They work 12-hour shifts in several locations
in the County, including the Main Jail, South Jail and Honor Farm. Approximately 42
employees work on each shift.
The Association and the County began negotiating a new contract in August 2001 to replace a
contract that expired on December 12, 2001. After jointly declaring impasse on November 7,
2001, the parties completed several days of mediation with State Mediator Paul Roose and are
presently scheduled to participate in a fact-finding hearing before arbitrator Joe Henderson
beginning on January 28, 2003.
On November 27, 2002, Assistant Sheriff Stan Hein sent a letter to all County Correctional
Officers and Correctional Sergeants notifying them that the Sheriff's Administration had
received information concerning a planned "sick-out". The letter continued that such
concerted activity would be illegal as a threat to public safety and that all officers would be
required to submit a note from a health care provider if the officer called in sick.
On December 8 and continuing through December 11, 2002 an average of 65% of the
bargaining unit members called in sick for each shift. The normal percentage of employees
who call in sick is 5 to 7% (2 to 3 employees). None of the Association's officers called in
sick. Pursuant to Section 13(1)(C) of the County's Employer-Employee Relations Policy the
The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
STATE OF CALIFORNIA 	( 	,~
===========~. 	================
GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8381
Fax: (916) 327-63 77
January 10, 2003
Harry G. Lewis, Attorney
Curiale, Dellaverson, Hirschfeld, Kelly & Kraemer
727 Sansome Street
San Francisco, CA 94111
Re: 	County of San Joaquin v. San Joaquin County Correctional Officers Association
Unfair Practice Charge No. SA-CO-12-M
WARNING LETTER
Dear Mr. Lewis:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 13, 2002. The County of San Joaquin alleges that the
San Joaquin County Correctional Officers Association violated the Meyers-Milias-Brown Act
(MMBA)1 by engaging in a "sick out" from December 8 through December 11, 2002.
The County employs approximately 200 Correctional officers and Sergeants in a bargaining
unit exclusively represented by the Association. They work 12-hour shifts in several locations
in the County, including the Main Jail, South Jail and Honor Farm. Approximately 42
employees work on each shift.
The Association and the County began negotiating a new contract in August 2001 to replace a
contract that expired on December 12, 2001. After jointly declaring impasse on November 7,
2001, the parties completed seyeral days of mediation with State Mediator Paul Roose and are
presently scheduled to participate in a fact-finding hearing before arbitrator Joe Henderson
beginning on January 28, 2003.
On November 27, 2002, Assistant Sheriff Stan Hein sent a letter to all County Correctional
Officers and Correctional Sergeants notifying them that the Sheriff's Administration had
received information concerning a planned "sick-out". The letter continued that such
concerted activity would be illegal as a threat to public safety and that all officers would be
required to submit a note from a health care provider if the officer called in sick.
On December 8 and continuing through December 11, 2002 an average of 65% of the
bargaining unit members called in sick for each shift. The normal percentage of employees
who call in sick is 5 to 7% (2 to 3 employees). None of the Association's officers called in
sick. Pursuant to Section 13(1)(C) of the County's Employer-Employee Relations Policy the
1 The MMBA is codified at Government Code section 3500 et seq. The text of the
MMBA and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

SA-CO-12-M
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January 10, 2003
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( 	(
County requested the Association to direct its members to return to work." The Association's
attorney responded on December 11, 2001 that the Association had no part in organizing or
promoting the sick out by its members. The letter contained an undated memo addressed to
Association members from the Association Board of Directors that quoted Section 13(1)(C) of
the County's policy and formally requested them to return to work if they were medically
capable to do so.
On December 10, Association President Gary Padula was reported in the Stockton Record as
saying that the sick-out was unsanctioned and "[blut when you're in a dangerous job and you
feel you're not getting the respect from the people above you, that's frustrating." He also
commented on the County's offer of a 2.4% raise over two and a half years, saying, "[wje
won't accept that, the problem is, we're the only one at the table who's bargaining." The same
day the Lodi News-Sentinel quoted Mr. Padula as saying, "[the members took it upon
themselves (to strike)." The story also stated, "Padula said he wasn't sure how many - if any -
county correctional officers will call in sick today." Padula was quoted as saying, "I really
would like to see resolution."
Based on these factual allegations, the charge does not state a prima facie violation of the
MMBA for the reasons that follow.
Under the MMBA, employees and their unions have a right to strike unless and until it is
clearly demonstrated that such a strike creates a substantial and imminent threat to the health or
safety of the public. (County Sanitation District No. 2 v. Los Angeles County Employees
2 Section 13(1)(C) reads in pertinent part:
Upon notification confirmed in writing by the County to the
recognized employee organization that certain of its members are
engaged in a work stoppage, the recognized employee
organization shall, at once, in writing direct such members to
return to work immediately. Such notification by the recognized
employee organization shall not constitute an admission by it that
a strike is in progress or has taken place or that any particular
member is or has engaged in a work stoppage. The notification
shall be made solely on the request of the County. In the event
that a work stoppage occurs, the recognized employee
organization agrees to take all reasonably effective and
affirmative action to secure the members return to work as
promptly as possible. Failure of the recognized employee
organization to issue such order and or take such action shall be
considered in determining whether or not the recognized
employee organization caused or authorized the strike.
County requested the Association to direct its members to return to work.2 The Association's
attorney responded on December 11, 2001 that the Association had no part in organizing or
promoting the sick out by its members. The letter contained an undated memo addressed to
Association members from the Association Board of Directors that quoted Section 13(1)(C) of
the County's policy and formally requested them to return to work if they were medically
capable to do so.
On December 10, Association President Gary Padula was reported in the Stockton Record as
saying that the sick-out was unsanctioned.and "[b ]ut when you're in a dangerous job and you
feel you're not getting the respect from the people above you, that's frustrating." He also
commented on the County's offer of a 2.4% raise over two and a half years, saying, "[w ]e
won't accept that, the problem is, we're the only one at the table who's bargaining." The same
day the Lodi News-Sentinel quoted Mr. Padula as saying, "[t]he members took it upon
themselves (to strike)." The story also stated, "Padula said he wasn't sure how many- if any-
county correctional officers will call in sick today." Padula was quoted as saying, "I really
would like to see resolution."
Based on these factual allegations, the charge does not state a prima facie violation of the
MMBA for the reasons that follow.
Under the MMBA, employees and their unions have a right to strike unless and until it is
clearly demonstrated that such a strike creates a substantial and imminent threat to the health or
safety of the public. (County Sanitation District No. 2 v. Los Angeles County Employees
2 Section 13(1)(C) reads in pertinent part:
Upon notification confirmed in writing by the County to the
recognized employee organization that certain of its members are
engaged in a work stoppage, the recognized employee
organization shall, at once, in writing direct such members to
return to work immediately. Such notification by the recognized
employee organization shall not constitute an admission by it that
a strike is in progress or has taken place or that any particular
member is or has engaged in a work stoppage. The notification
shall be made solely on the request of the County. In the event
that a work stoppage occurs, the recognized employee
organization agrees to take all reasonably effective and
affirmative action to secure the members return to work as
promptly as possible. Failure of the recognized employee
organization to issue such order and or take such action shall be
considered in determining whether or not the recognized
employee organization caused or authorized the strike.

SA-CO-12-M
January 10, 2003
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SA-CO-12-M
January 10, 2003
Page 3
( 	(
Assn. (1985) 38 Cal.3d 564.)" It is not clear that there are sufficient facts presented here to
determine whether the sick out constituted an illegal strike. However, even assuming that the
sick out was illegal, this charge must be dismissed for other reasons.
Before an employee organization can be held legally responsible for a sick out, it must be
demonstrated that the participants were acting as agents of the organization rather than as
individuals. (Compton Community College District (1989) PERB Decision No. 728.) In that
case the Board was faced with determining whether a union was responsible for an employee
sick out. It found that two passages from North River Energy Corporation v. United Mine
Workers (11" Cir. 1981) 664 F.2d 1184 described the charging party's burden regarding
agency of the union:
In showing union complicity, the company must therefore prove
that the agents of the union participated in, ratified, instigated,
encouraged, condoned, or in any way directed the authorized
strike for the union to be held liable.
It is necessary, however, that the acts of a union agent be
committed within the scope of this general apparent authority and
on behalf of the union . . . . The only activity which North River
relies upon which is indicative of union authorization,
ratification, or approval, is the fact that all of the union officials
and committeemen failed to work their shifts in each of the six
subsequent strikes. This fact, in itself, cannot be construed as
participation and authorization by the union as an entity in the
strike.
In the present case, the Association's officers did not call in sick during the period December 8
through December 11, 2001. Nor are there any facts that indicate that the Association ratified,
instigated, encouraged or condoned the sick out. Charging Party asserts that Association
President Padula's comments concerning the sickout as recorded in the local newspapers on
December 10 support a finding of agency. I am unable to find any statement in these reports
that instigate or give support to the employees who called in sick. Rather I find that these
comments merely recognize that the job action is in progress and attempt to explain to the
public the reasons for the employees' conduct.
Finally, there are no allegations that the Association failed to comply with its obligations under
Article 13(1)(c) of the County's Employer-Employee Relations Policy. Thus, the Association
cannot be held responsible for the sick out.
Board decisions under the Educational Employment Relations Act have found that the
right to strike is limited based in part on relevant Education Code provisions. (Compton
Unified School District (1987) PERB Order No. IR-50; Sacramento City Unified School
District (1987) PERB Order No. IR-49.)
Assn. (1985) 38 Cal.3d 564.)3 It is not clear that there are sufficient facts presented here to
determine whether the sick out constituted an illegal strike. However, even assuming that the
sick out was illegal, this charge must be dismissed for other reasons ..
Before an employee organization can be held legally responsible for a sick out, it must be
demonstrated that the participants were acting as agents of the organization rather than as
individuals. (Compton Community College District (1989) PERB Decision No. 728.) In that
case the Board was faced with determining whether a union was responsible for an employee
sick out. It found that two passages from North River Energy Corporation v. United Mine
Workers (11 th Cir. 1981) 664 F .2d 1184 described the charging party's burden regarding
agency of the union:
In showing union complicity, the company must therefore prove
that the agents of the union participated in, ratified, instigated,
encouraged, condoned, or in any way directed the authorized
strike for the union to be held liable.
It is necessary, however, that the acts of a union agent be
committed within the scope of this general apparent authority and
on behalf of the union .... The only activity which North River
relies upon which is indicative of union authorization,
ratification, or approval, is the fact that all of the union officials
and committeemen failed to work their shifts in each of the six
subsequent strikes. This fact, in itself, cannot be construed as
participation and authorization by the union as an entity in the
strike.
In the present case, the Association's officers did not call in sick during the period December 8
through December 11, 2001. Nor are there any facts that indicate that the Association ratified,
instigated, encouraged or condoned the sick out. Charging Party asserts that Association
President Padula's comments concerning the sickout as recorded in the local newspapers on
December 10 support a finding of agency. I am unable to find any statement in these reports
that instigate or give support to the employees who called in sick. Rather I find that these
comments merely recognize that the job action is in progress and attempt to explain to the
public the reasons for the employees' conduct.
Finally, there are no allegations that the Association failed to comply with its obligations under
Article 13(1)(c) of the County's Employer-Employee Relations Policy. Thus, the Association
cannot be held responsible for the sick out.
3 Board decisions under the Educational Employment Relations Act have found that the
right to strike is limited based in part on relevant Education Code provisions. (Compton
Unified School District (1987) PERB Order No. IR-50; Sacramento City Unified School
District (1987) PERB Order No. IR-49.)

SA-CO-12-M
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SA-CO-12-M
January 10, 2003
Page4
(
Charging Party asserts that the National Labor Relations Board ruling in Jeddo Coal Company
2001) 334 NLRB No. 86 support a finding of agency. In Jeddo the NLRB adopted an
Administrative Law Judge's decision concerning a coal strike involving picketing at secondary
employers. The NLRB General Counsel presented two theories of agency regarding Mine
Workers' Local 803. The first is based on series of cases beginning with Mine Workers
(Garland Coal Co.) (1981) 258 NLRB 56 in which the NLRB found agency between the
International Union, the district and local mine committee based on a delegation of contractual
duties. The decision explains that these findings are consistent with the Supreme Court's
decision in Carbon Fuel Co. v. Mine Workers (1979) 444 U.S. 212 which held that the
International was not liable in damages where it did not instigate, support, ratify, or encourage
the wildcat strikes. This theory is consistent with PERB's analysis of this issue and the analysis
above. Thus it does not mandate a different result than the one reached above.
The second theory was premised on the NLRB's longstanding rule that when a union
authorizes a picket line, it is required to retain control over the picketing. The second theory is
not applicable to this case.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
corner of the charge form. The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before January 31, 2003, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Robert Thompson
General Counsel
Charging Party asserts that the National Labor Relations Board ruling in Jeddo Coal Company
(2001) 334 NLRB No. 86 support a finding of agency. In Jeddo the NLRB adopted an
Administrative Law Judge's decision concerning a coal strike involving picketing at secondary
employers. The NLRB General Counsel presented two theories of agency regarding Mine
Workers' Local 803. The first is based on series of cases beginning with Mine Workers
(Garland Coal Co.) (1981) 258 NLRB 56 in which the NLRB found agency between the
International Union, the district and local mine committee based on a delegation of contractual
duties. The decision explains that these findings are consistent with the Supreme Court's
decision in Carbon Fuel Co. v. Mine Workers (1979) 444 U.S. 212 which held that the
International was not liable in damages where it did not instigate, support, ratify, or encourage
the wildcat strikes. This theory is consistent with PERB's analysis of this issue and the analysis
above. Thus it does not mandate a different result than the one reached above.
The second theory was premised on the NLRB' s longstanding rule that when a union
authorizes a picket line, it is required to retain control over the picketing. The second theory is
not applicable to this case.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amended charge must have the case number written on the top right hand
comer of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before January 31, 2003, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
Robert Thompson
General Counsel