Decision 0208E – Fresno Unified School District

S-CE-257; CO-33

Decision Date: April 30, 1982

Decision Type: PERB Decision

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Perc Vol: 6
Perc Index: 13110

Decision Headnotes

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

A pre-impasse strike creates a rebuttable presumption that it is a violation of EERA section 3543.6(c).

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

No costs awarded where respondent did not engage in repeated and flagrant violations of the law nor was its defense frivolous and unwarranted.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

Dismissal of claim proper because it was not specifically alleged in the charge.

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.03000 – Union Responsibility

Affiliate of exclusive rep. had no obligation to negotiate with the District, nor could it request or participate in the statutory impasse procedures. Therefore, it cannot be held liable for violation of subsections 3543.5(c) or (d); pp. 23-24.

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.02000 – Exclusive Representatives

Affiliate of exclusive rep. had no obligation to negotiate with the District, nor could it request or participate in the statutory impasse procedures. Therefore, it cannot be held liable for violation of subsections 3543.5(c) or (d); pp. 23-24.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

Affiliate of exclusive rep had no obligation to negotiate with the District, nor could it request or participate in the statutory impasse procedures. Therefore, it cannot be held liable for violations of subsections 3543.5(c) or (d); pp. 23-24.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.07000 – Waiver; Estoppel

Hearing officer's refusal to consider the District's statute of limitations defense was unnecesarily harsh since the same defense can be raised in a demurrer and PERB rules do not provide a procedure for filing demurrers; p. 22.

1500.00000 – MISCELLANEOUS ISSUES; EDUCATION CODE
1500.02000 – Education Code Sections Considered by PERB (By Number)

Waiver of statutory right (Ed. Code section 45060) not lightly inferred.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.02000 – Union’s Waiver of Employee or Organizational Rights

Waiver of statutory right (Ed. Code section 45060) not lightly inferred.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.11000 – Dues Deductions/Check Off/Agency Fee

The employer's interest in agency fees is limited to its willingness to impose on its non-union employees an agency fee requirement and, if so, whether an authorization election is desirable. The employer also has a legitimate interest in negotiating some protection against the liability which might result from its agreement to withhold agency fees in excess of those permitted by law. The district's insistence on negotiating a cap on agency fees was outside its legitimate interest and therefore a violation of subsections 3543.5(c) and (d). Dues and agency fees are a matter of internal union policy; pp. 21-22. Union has a right to dues decuction regardless of its actions regarding strike activity.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.02000 – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)

The employer's interest in agency fees is limited to its willingness to impose on its non-union employees an agency fee requirement and, if so, whether an authorization election is desirable. The employer also has a legitimate interest in negotiating some protection against the liability which might result from its agreement to hold agency fees in excess of those permitted by law. The district's insistence on negotiating a cap on agency fees was outside its legitimate interest and therefore a violation of subsections 3543.5(c) and (d). Dues and agency fees are a matter of internal union policy; pp. 21-22.

1000.00000 – SCOPE OF REPRESENTATION
1000.02007 – Agency Fee; Amount

The employer's interest in agency fees is limited to its willingness to impose on its non-union employees an agency fee requirement and, if so, whether an authorization election is desirable. The employer also has a legitimate interest in negotiating some protection against the liability which might result from its agreement to withhold agency fees in excess of those permitted by law. The district's insistence on negotiating a cap on agency fees was outside its legitimate interest and therefore a violation of subsections 3543.5(d) and (d); pp. 21-22.

1202.00000 – REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY
1202.01000 – In General

Failure to request that PERB seek an injunction against a strike in order to terminate the strike or otherwise reduce the expense of the strike requires that no make-whole remedy be awarded to the district; pp. 24-25. Affiliate of exclusive rep. had no obligation to negotiate with the District, nor could it request or participate in the statutory impasse procedures. Therefore, it cannot be held liable for violation of subsections 3543.5(c) or (d); pp. 23-24.

301.00000 – UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES
301.02000 – Pre-Impasse

A strike during negotiations and prior to exhaustion of impasse proceedings constitutes a failure to negotiate in good faith. Although not a per se violation, in the absence of any sustainable allegation of provocation by the employer, the strike violated subsection 3543.6(c); pp. 11-12. A pre-impasse strike creates a rebuttable presumption that it is a violation of 3543.6(c).

302.00000 – UNFAIR PRACTICE ISSUES; PICKETING
302.01000 – In General

Absent an atmosphere of intimidation and violence, mere namecalling, abusive or vulgar language, and photographing and taking of license numbers did not interfere with nonstrikers exercising their right to refrain from participating in the activities of the Association; pp. 12-14. Test is whether picket line misconduct may reasonably tend to coerce or intimidate employees in the exercise of their rights. Individual feelings are not the measure. Blocking of egress and ingress is coercive when it occurs in conjunction with an atmosphere of intimidation and violence. Isolated examples of photographing or taking license numbers were not coercive.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.05000 – Union Threats; Violence

Absent an atmosphere of intimidation and violence, mere namecalling, abusive or vulgar language, and photographing and taking of license numbers did not interfere with nonstrikers exercising their right to refrain from participating in the activities of the Association; pp. 12-14. Test is whether picket line misconduct may reasonably tend to coerce or intimidate employees in the exercise of their rights. Individual feelings are not the measure. Blocking of egress and ingress is coercive when it occurs in conjunction with an atmosphere of intimidation and violence. Isolated examples of photographing or taking license numbers were not coercive.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.03000 – Promise of or Withholding of Benefits

The contract's penalty clause for a violation of the no-strike provision cannot be invoked where the penalty is revocation of a right guaranteed by statute. Since EERA subsection 3543.1(d) provides an absolute guarantee of dues deductions, the contract cannot be said to "provide" that right; pp. 14-18.

801.00000 – UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION
801.02000 – Employee Right to Refrain from Union Activities

Absent an atmosphere of intimidation and violence, mere namecalling, abusive or vulgar language, and photographing and taking of license numbers did not interfere with nonstrikers exercising their right to refrain from participating in the activities of the Association; pp. 12-14.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.08000 – Other

Board ordered one time double dues deduction by employer where deductions had been stopped.