## Facts

- Fresno Unified School District (the District) and Fresno Teachers Association, CTA/NEA (the Association) were bargaining for a second collective bargaining agreement after the first agreement expired.
- The parties held bargaining sessions regularly for about six months and reached a deadlock.
- The Association declared impasse and asked the California Public Employment Relations Board (PERB) to appoint a mediator under the Educational Employment Relations Act (EERA) impasse procedures.
- After investigating, PERB twice rejected the Association’s impasse request and directed the parties to resume negotiations.
- The Association then discontinued the impasse track and called a strike without a PERB impasse determination and without mediation through the statutory process.
- Negotiations continued during the strike, and the parties reached a tentative agreement shortly after the strike ended.
- About five months later, the District filed an unfair-practice charge alleging the Association violated the EERA by striking before exhausting the statutory impasse procedures.
- At the hearing, the Association’s chief negotiator acknowledged he sought a PERB impasse finding in part to reduce exposure to a potential contract-based damages claim tied to calling a strike, initially thought a mediator might help move bargaining, and later believed the District would use impasse procedures to extend negotiations.
- The Association also indicated it likely would not have joined the District in declaring impasse before the strike even if the District had been willing to do so.
- A hearing officer issued a proposed decision declining to treat the strike as a per se unfair practice; the District filed exceptions.

## Issues

1. Under the EERA, does a teachers’ union commit a per se unfair practice by striking before completing statutory impasse procedures (including mediation), particularly where PERB has declined to find an impasse and has directed the parties to continue bargaining?

## Decision

- PERB rejected the District’s theory that a strike occurring before completion of the EERA impasse procedures is automatically an unfair practice.
- PERB agreed with the hearing officer’s approach that the EERA does not impose a categorical unfair-practice rule based only on the timing of a strike in relation to impasse procedures.
- The unfair-practice charge was dismissed.

## Legal Principles

- The EERA’s impasse procedures are a central part of the statutory bargaining framework, but a union’s failure to complete those procedures does not, by itself, establish an unfair practice.
- Whether strike activity constitutes an unfair practice is evaluated based on the circumstances, including whether the strike reflects a refusal to bargain in good faith or other conduct that violates statutory duties.
- A strike called after PERB has declined to appoint a mediator and has directed continued negotiations is not automatically unlawful on the sole ground that statutory impasse steps were not completed.
- Nonuse or abandonment of impasse procedures may be relevant evidence when assessing bargaining conduct, but it is not dispositive without additional facts showing a statutory violation.
- PERB, as the agency charged with administering the EERA, determines in unfair-practice proceedings whether strike conduct amounts to an unlawful refusal to bargain or similar violation.

## Conclusion

PERB declined to adopt a per se rule that a teachers’ strike is an unfair practice whenever it occurs before completion of EERA impasse procedures, and it dismissed the District’s charge after concluding that timing alone did not establish a statutory violation.


Fresno Unified School District v. Fresno Teachers Association, CTA/NEA, 6 PERC 13110 (1982)