The election in 1983 of Albert Rodda to the Los Rios Community College Board of Trustees gave him an opportunity to continue his public service by sharing his deep knowledge of state law—particularly in terms of the Education Code—and helping people to appreciate the historical record. The Senator gave a presentation in February 1990 at a symposium at the University of California, Los Angeles. Here are his remarks, taken directly from his prepared text. The only change that I made in transferring the original 12-page document to this post was to embed a footnote at the point in the text where it was cited.
Paper Presented at UCLA Symposium
on
Collective Bargaining
February 23, 1990
Albert S. Rodda, PhD
Member, Los Rios Community College District
Board of Trustees
Collective Bargaining for Educators Under SB 160
The progress which has been achieved in the enhancement of the professional status of teachers since the thirties of this century is remarkable. More progress needs to be made and the current problem is essentially that of delineating the issues which confront public education and developing and implementing the changes appropriate for the enhancement of the status and professionalism of public educators.
When I began teaching in a local high school in 1934, the teachers had no status outside of the classroom as far as the school district was concerned. Teachers were hired by the district superintendent at a salary level determined by the superintendent in an arbitrary manner. There were no fringe benefits and there was no salary schedule and salaries varied among the teachers without regard for any meaningful criteria. There was no tenure and teachers could be terminated at the will of the superintendent and the school board. I taught in the district for four years and took a leave in order to pursue a PhD at Stanford University. Frankly, 1 was annoyed at the low level of the professional status of the faculty.
I remained in teaching, obtained my doctorate, served as a gunnery officer during the Second World War, and in 1946 became an instructor at Sacramento Junior College. My subjects were economics and history. I became active in faculty affairs and affiliated with Local 31 of the AFT and the college Faculty Council. Faculty relations with the administration and school board were not as negative as they had been in the high school district, but faculty involvement in educational matters outside of the classroom was quite insignificant, and decisions affecting educational programs were usually made in an inconsiderate and arbitrary manner.
The City Unified School Board, which governed the college, was almost disdainful of the faculty, especially those of an independent perspective. For example, I was requested by the Superintendent to present several resolutions to the Board which Local 31 of the AFT had adopted. One of the resolutions requested that a faculty member be placed upon the school district's Budget Advisory Committee. When I appeared before the Board, I was “badgered” by several members who ignored the resolution and demanded information about Local 31, its members, its purpose, and a justification for its involvement in district policy matters. After about fifteen minutes of unfriendly questioning, I told the board of my disappointment and displeasure and left the “non-hearing.” No action was taken, of course, on the proposals that I had submitted to the Board.
Several years later I was elected to the State Senate and represented the County of Sacramento. The legislature met every other year during the Spring semester and I was granted a semester leave. A former faculty member, Senator John Swan, served from 1946 to 1950 and the Board refused his request for a leave, which created an almost impossible situation and contributed to his decision not to seek reelection to the Senate.
An interesting court decision rendered in 1950 provides some understanding of the status of teachers at that time. A Sacramento High School teacher, Ed McGrath, refused to attend a football game held on Thanksgiving Day in the Hughes Stadium and discipline the students at the game. He claimed that the assignment was not an appropriate assignment to impose upon a teacher and that it was an infringement upon his rights and his free time. McGrath was disciplined for his refusal to comply with the assignment and he then entered an appeal on his behalf in a Sacramento Superior Court. The case was decided against him and the decision rendered was that the members of the faculty did not have a contract relating to their responsibilities and, therefore, a school board could assign district teachers a non-teaching responsibility as long as the duty was in accord with the law and local ordinances and that such duties could be imposed upon the faculty any time in the day, any day in the week, and any month in the year. The decision was upheld on appeal and became the law of the state.
Obviously, the decision was most disturbing to local teachers. It was further evidence of the lack of professional status on the part of the teaching profession.
Because of a serious funding problem and the demand for new sites for state colleges and university campuses in 1959, a resolution was approved by the Legislature which called for the development of a Master Plan for Higher Education in California. In 1960 the legislature responded with the enactment of SB 33X, Miller-Rodda, in a Special Session of the Legislature. It became the Donahoe Higher Education upon the demise during the session of Assemblywoman Dorothy Donahoe, who had been significantly involved in the development of the legislation. A significant provision was the creation of the California State College system which was placed under the management of a newly created State College Board of Trustees. The state colleges were changed from being primarily teaching colleges to general education institutions and were authorized to grant the Masters Degree and the Doctorate if the doctorate degree was developed as a cooperative program with the University of California or a qualified private institution of higher education.
The junior colleges remained under the direction of the state Superintendent of Education and the Board of Educator.
Being aware of the importance of shared governance as practiced in the University system through the Academic Senate, I expressed an interest in the establishment of an Academic Senate in the State College system. Senator George Miller also supported the idea and he authored a resolution, of which I was the principle co-author, which required the State College system to establish an academic system and to encourage shared governance. The concept of shared governance, however, did not develop to the degree it had in the University system, where years of practice and experience resulted in an Academic Senate system which gave the faculty a great deal of influence in the determination of issues relating to the University's involvement in education and research. It was recognized at the time that the State College system would have a great distance to travel to achieve a comparable program of shared governance, but the creation of the Academic Senate was a significant step in that direction.
In the mid-sixties the Legislature became concerned about the governance of the junior colleges and that concern led, after a number of interim hearings, to the enactment of the Stiern Act in 1967, which created the Board of Governors for the Community Colleges and removed the junior colleges from the jurisdiction of the State Board of Education and the State Department of Education. The new Board of Governors was granted nominal powers. In 1969 legislation was enacted which clarified the role of the Board of Governors and gave it power to coordinate and advise the independent junior college districts and to establish educational standards and to administer certain functions and state programs. The legislation further clarified the role of the district boards and directly gave them the responsibility of administering the junior colleges.
While these changes were being introduced into the state's system of higher education, significant educational reforms were implemented in the schools, K-12. There had developed in the state in the fifties a strong feeling of public dissatisfaction over the impact of what was referred to as “liberal or progressive” education or “learning by doing,” a reflection of the educational philosophy of John Dewey, which was having a strong influence upon the departments of education in the colleges and universities, especially in the West. The result was the authorization of a massive study and review of public education in California which was undertaken in 1957. The recommendations of the study were made available for the Legislature to consider in 1961 and the outcome was the enactment of three basic reforms.
They were: (1) the Fisher Act, which significantly modified the teacher credentialing law, (2) the Casey Act, which changed the curriculum requirements in the schools, K-12, by placing more emphasis upon fundamentals, and by the elimination of “folderol” courses, as one of my Senate colleagues commented, and (3) the Winton Testing Act, which mandated that schools administer a statewide testing program each year.
In the same year, the Winton Collective Bargaining Act was signed into law. It authorized education employees in grades, K-14, to meet and confer with district administrators on educational issues. There was no exclusive negotiation and the scope of negotiations was very broad. The act contained the language which the judiciary had traditionally interpreted to mean the denial of the strike, but the act did not define or provide for the settlement of an impasse situation, nor did it require a written contract. In addition, there was no agency created to interpret and administer the act. The law merely authorized the employees to meet and confer with the representatives of the school district. Because of its lack of clarity and a meaningful definition of scope and its failure to provide for exclusive negotiation and a modus operandi for the settlement of an impasse situation, I voted against the bill when it was presented in the Senate for consideration.
Known as the Winton Act, the law governed faculty and non-certificated employee relations until the enactment of the Russell-Rodda amendments in 1970, as I recall. The Russell Act represented a significant improvement over the original act; however, it failed to provide for a written contract, exclusive negotiations, nor did it adequately define the scope of negotiations. It did provide for mediation and a limited fact-finding procedure and the traditional language with reference to the right to strike. Negotiations were to be engaged in a “conscientious effort to achieve an agreement.” It did not establish an agency to interpret and enforce the act. Despite its improvements over the original legislation, it contained a number of deficiencies which surfaced within a short period of time.
As a consequence of the problems which related to the act and a serious teachers' strike which occurred in the Los Angeles District, as Chairman of the Senate Education Committee, I held a number of interim hearings on the issue of collective bargaining. My staff and I also met with two local school board members and several local, school administrators and evaluated from their perspective the deficiencies in the law and the features needed for the enactment of a more comprehensive act.
Their concerns were several, of which the major ones were the lack of an exclusive bargaining agency, the vagueness of the definition of scope, an inadequate mechanism for the resolution of impasse, the lack of a state administrative agency, and the lack of a written contract requirement.
The local educators submitted a model collective bargaining proposal and my staff rewrote the proposal and submitted it for review to those involved in school district negotiations-administrators, school boards, and employee organizations. The outcome was a proposal which became the model for consideration by the Legislature. It contained the following elements: (1) application to grades, K-14, (2) provision for a more precise definition of the scope of negotiations, (3) language to provide protection of the role of community college Academic Senates, (4) creation of a state agency to administer the act, (5) definition of impasse and provision for meaningful resolution of the differences, (6) elections which would identify the organization authorized to engage in exclusive negotiations, (7) inclusion of the traditional language which had been interpreted by the judiciary to prohibit the right to strike, (8) embodiment of negotiation agreements in the form of a written contract, and (9) inclusion of a responsible statement of management rights.
At the time there was a determination on the part of a number of special interest groups in public education to achieve the enactment of legislation which would constitute a more comprehensive change in the law and one which would include, not only the schools, K-14, but also the two segments of higher education and state government.
It is interesting that the Office of the Legislative Analyst published a document on “Collective Bargaining in California Public Jurisdictions” in February, 1975 in which the recommendation was made that the legislation enacted should be a “single comprehensive law applicable to all state and local public employees with as few exemptions as practicable.” The Office reasoned that such a “comprehensive law would minimize confusion and misunderstanding.” It also suggested the enactment of a law which would be sufficiently “general to enable public employers and employee organizations to develop innovative approaches and solutions keyed to their specific problems and circumstances.”
I rejected the comprehensive approach because I perceived a number of problems which I believed should be addressed on a separate basis in the language of the relevant collective bargaining legislation. My concerns related to two significant issues: one, the different funding concepts which related to the financing of agencies of government on a statewide basis, and on a local or district funding basis, and, two, the need for meaningful language within the legislation to promote the role of the academic senates of the three segments of higher education as a means of encouraging shared governance.
1 was aware of the different procedures involved in funding the state of California, the two segments of higher education, and the schools, K-14, and this knowledge convinced me that a separate approach should be adopted: or one for the state, one for the two segments of higher education, and one for the schools, K-14. Incidentally, during the lengthy negotiations which were involved in the development of a reasonable approach to the collective bargaining issue, I discovered that my colleagues, most of whom had not served on the Senate Finance Committee, were unaware of the procedure involved in determining annually the level of compensation for employees of the state and the two segments of higher education.
For example, the relevant language in AB 1781, Z'Berg, 1975, provided that collective bargaining agreements between state employee negotiating organizations and the Governor which authorized state expenditure increases and, therefore, had to have legislative approval were to be presented to the legislature for its action prior to March. The legislation contained no language which delineated the conditions under which the Legislature would respond, or how any action taken by the Legislature would relate to the state budget, the approval of which was required before July 1 and which was not usually approved until the last week in June.
It was the vagueness in the language of the legislation which concerned me and prompted me to prepare and distribute a paper in which I briefly outlined the steps necessary to act upon expenditure augmentations which traditionally were a part of the annual state budget Incidentally, this problem was addressed specifically in the Dills and Berman bills which became law and applied to state government employees and the employees of the two segments of higher education.
In 1975, after all of the comprehensive collective bargaining bills under consideration by the Legislature were defeated, I took up SB 160, which was in the Senate Finance Committee, and gained its approval of the Senate and the Assembly and also the Governor's signature.
The first version of the K-14 legislation was SB 1857, 1974, and it was defeated in the Assembly as a consequence of the opposition of the CTA, the AFT, and the California Professional Teachers Organization. In 1975 I reintroduced the legislation as SB 160, and it was opposed by the same organizations. It was supported, as was the previous legislation, by the United Teachers of Los Angeles, the Classified School Employees of Los Angeles, the School Administrators Association and the School Boards Association. Both of the Los Angeles employee organizations were determined to modify the Winton-Russell Act because of their disappointment over the negative impact of a strike by school employees in the Los Angeles District in l973 and their hope that a change in the law would improve the situation in the future.
When it was obvious to the AFT and the CTA that SB 160 had excellent prospects for enactment, they requested two amendments and then gave the legislation their support. The amendments added class size to the definition of scope and provided for an agency shop if it were made a part of the contract and approved by a vote of the affected employees.
John Bukey, the Senate Education Committee consultant, was assigned by me, the Committee Chairman, the responsibility of drafting the legislation. He was involved in all of the interim hearings and in the negotiations with the affected organizations, employer and employee. Mr. Bukey focused upon several problems which were regarded as of importance and about which there was some disagreement in the field of education. The following are the issues which were considered in the development of the legislation.
(1) Scope. In developing the language relating to this aspect of collective bargaining care was taken to provide as reasonable assurance as possible that the community college academic senates or faculty councils were protected in so far as their involvement in shared governance was concerned. It was a difficult objective because of the then ambiguous role of the senates within the community college system.
Prior to this effort I had authored SB 1147 in 1969 to achieve that goal. The legislation was vetoed by Governor Reagan. The protective language in SB 160 was Article I, Section 3540, and was very broad and general. It provided much less precise protection than was included in the Higher Education Collective Bargaining Act authored by Assemblyman Berman in 1978. The intent was clear, but because of the lack of preciseness in the language in.the collective bargaining act, the Academic Senates in some of the community colleges are being practically eliminated and the issues normally resolved or addressed through shared governance procedures are being subsumed as part of the collective bargaining negotiations. The development is partly attributable, of course, to the broad interpretation of the provisions of SB 160 by PERB and the judiciary.
That issue might be addressed through an amendment to SB 160, or the enactment of special legislation directly focusing upon the scope definition as it relates to the community colleges. Unless such a course of action is taken there is a real possibility that a further erosion of the role of the Academic Senates will occur, especially in those districts where such a transformation is taking place and has the support of the faculty and the administration. Of course, in those districts where there is a commitment to shared governance, there is no such issue. In those districts progress has been made in the implementation of reasonable programs of shared governance. The Los Rios District is such a district and through the cooperation of the administration and the faculty, a responsible program for involving the Los Rios Academic Senate in decision-making in areas of concern not relating to the collective bargaining is being implemented. It is a program well received within the District.
Another scope issue was that relating to the role of the non-certificated employees in the collective bargaining process. It was clear, as the collective bargaining legislation was being developed, that the definition of scope needed to be more specific as it related to the noncertificated employees. Unfortunately, that segment of the public education, which was represented by 'the California School Employees Organization, rejected the invitation to be meaningfully involved in the development of the collective bargaining legislation. As a consequence, a meaningful definition of scope as it related to the non-certificated was not incorporated into the legislation. In 1980, my last year in the Senate, the classified employees came to me with a request to enact a clarification in the scope definition. I introduced the bill with the understanding that unless a compromise was worked out between the interested parties, I would not further involve myself in the legislation. No agreement was achieved, and so the bill perished, and, as far as I know, the controversy with respect to the scope language remains in the law.
(2) Strike. It was my determination that teachers should not be granted the right to strike. For that reason the language which traditionally had been interpreted by the judiciary to deny the right to strike, was incorporated into the legislation. At that time, it was generally accepted as not authorized and that opinion had been sustained in interpretations of the original Winton Act and the Russell-Winton Act The issue related to Labor Code Section 923 (West, 1971) which had been incorporated in all of the collective bargaining legislation that had been enacted into law as it affected the public schools. At the time, I received a Legislative Counsel's Opinion in which it was stated that even in the absence of language with reference to Section 923 of the Labor Code, strikes would be unlawful and that under specific conditions the termination of employment would be an appropriate penalty to impose upon those involved. [Enclosed is an Addendum in a letter which explains how the strike issue was interpreted at that time.]
(3) Impasse. While the collective bargaining legislation was being developed, my staff was in serious communication with the School Boards Association, the School Administrators Association, and the United Teachers of Los Angeles. All three organizations supported the concepts being embodied in the legislation. The AFT and the CTA, as previously noted were opposed, since they favored a comprehensive approach to the collective bargaining issue and desired that the legislation be silent on the right to strike. All three groups with which we were in serious communication desired a responsible mechanism for the settlement of impasse situations. As a consequence the legislation defined the circumstances which were interpreted as an impasse and provided that two approaches to resolution of the impasse would be available. The first was that of mediation and the second was fact-finding with public notification of the results of fact-finding. At the time, there was pressure upon the Legislature to amend into the Meyers, Milias. Brown Act, which applied to local governments, a provision with respect to safety officers and those involved in fire fighting which would require mandatory arbitration with binding award if an impasse were not resolved. This was an entirely unacceptable option from my perspective and was not included in the legislation as an amendment to the Meyers, Milias, Brown Act, it was defeated in the Senate Industrial Relations Committee. It was hoped that as a consequence of the approach to the settlement of impasse, success would be experienced in bringing disputes to the table for meaningful negotiation and resolution. To a significant degree I believe that has resulted, though there are school situations in which a resolution of differences has not been achieved and resort to the strike has occurred, a consequence it was hoped to minify through the enactment of the legislation.
(4) Administrative Board. It was generally recognized that the success or effectiveness of the legislation would be enhanced through the creation of an independent board which would have the responsibility of advising school districts with respect to the law, negotiating review negotiation procedures, making rulings with respect to the appropriateness of procedures, and ruling on issues when there seemed to be a course of action taken which was contrary to the statute. When the legislation was being enacted and the language which created the Education Employment Review Board was considered, no consideration was given with respect to the qualifications of the members of the Board. The responsibility for the appointment of members was given the Governor with legislative approval in the Senate required. The original legislation would have created a five person Board, but Governor Brown indicated that only a three person Board would be acceptable; so the legislation was amended to comply with the Governor's request.
The Board, now PERB, has performed well over the years, though there is some criticism of its failure to act quickly enough and there has been severe disagreement with respect to some of his decisions, especially those in relation to the strike issue. If a change were made, perhaps, professional experience in the practice of law should be required as a qualification for appointment to the Board.
An issue which developed as a consequence of the authorization of agency shop was the determination of the dollar service fee payment required as condition of continued employment by an employee who refused affiliation with the organization recognized as the exclusive bargaining representative. It has been interpreted by the judiciary and PERB that the service fee may not include payment for activities beyond the organization’s representational obligations, or lobbying and electioneering expenses and costs involved in the recruitment of new members. This interpretation of the act by PERB was upheld by the Supreme Court in 1989 and the decision related specifically to the provision in the act that the service fee that may be imposed upon a non-member of the exclusive bargaining representative must be an amount not to “...exceed the standard initiation fee, period dues, and general assessments of such organization for the duration of the agreement, or a period of three years from the effective date of such agreement, whichever comes first.” The language is in Section 3540.1 (i) (2).
Despite this interpretation of the Educational Employment Reasons Act, which is more restrictive than the language in the State Employer-Employee Relations Act, some districts are experiencing difficulty in precisely determining the amount which may be deducted from a nonmembers salary compensation as a payment for the services provided by the bargaining organization. At the time of the enactment of the legislation, it was not perceived that the language relating to this issue would be subject to such disagreement and controversy.
COLLECTIVE BARGAINING FOR STATE EMPLOYEES
THE DILLS ACT AND BERMAN ACT
After the enactment of SB 160, two collective bargaining acts affecting public employees were signed into law. The first was the Dills Act which applied to state employees. The second, the Berman Act, applied only to the two segments of higher education.
SB 1839, the Dills Act, gained legislative approval and was signed by the Governor in 1977. The Dills legislation applied to state government and state employee organizations which qualified for employer-employee negotiations in matters relating to their employment and compensation. The Dills bill was essentially an extension of the Meyers, Milias, Brown Act, which covered local government employees, to state government, excluding the two segments of higher education. The administration and interpretation of the Dills legislation was made the responsibility of EERB, which was renamed the Public Employment Relations Board.
The Dills legislation required that agreements relating to state costs or expenditures which were achieved through the bargaining negotiations were to be presented to the Legislature in the form of a Memorandum of Understanding and that when submitted to the Legislature, authorization for all such expenditure would require approval by the Legislature in the annual State Budget Act, as did changes in any matters within the scope of negotiations which required legislative action. This requirement provided a time schedule and a definitive procedure for the ultimate approval of any agreement that the Governor's Office and the employee bargaining organizations had achieved through the collective bargaining negotiations.
The Dills Act did not authorize a written contract or an agency shop agreement, and the definition of the scope of negotiations was much more limited than that defined in the public school legislation, SB 160. It virtually eliminated the historic role of the State Personnel Board in matters relating to employee compensation. In the event of a failure to achieve an agreement the establishment of an impasse situation was authorized with a requirement that mediation be undertaken. While the negotiations are taking place, a “sunshine clause” provision in the law required that all initial proposals and counter-proposals were to be made public within seven days.
In 1978, the year following the enactment of the Dills Act, legislation authored by Assemblyman Berman, was enacted after considerable deliberation in the Senate before the Education Committee. The deliberation related to the view that the Assembly version failed to protect the role of the Academic Senate and would, as a result, create a situation in which the issues traditionally resolved through the exercise of shared governance would be subsumed under the scope of matters subject to collective bargaining negotiations and would result, as a consequence, in the ultimate demise of a meaningful role for the Academic Senate. After amendments were approved, basically as a condition for approval of the legislation by the Senate Education Committee, the Berman legislation proceeded to the Governor and was signed into law. The University of California was only nominally interested because shared governance had become such a strongly established and entrenched aspect of University affairs that it was not regarded as threatened. The California State College and University, however, was deeply involved and totally opposed to the Berman legislation absent the amendments.
The legislation created the Higher Education Employment Relations Act and withdrew the two segments of higher education from the provisions of the Brown Act. The law prohibited the Academic Senates from performing as exclusive negotiating organizations and provided for a definition of scope of negotiations which was so worded that it was certain that the two systems would reserve certain educational matters for resolution through the shared governance procedure.
The Berman Act had many similarities to the Dills Act, a similarity easy to understand since they both dealt with collective bargaining within state government, though with different segments of government.
There was no written contract mandated and similar use was made of the concept of a Memorandum of Understanding and similar language was utilized to define an impasse condition, though under the Berman Act mediation, followed by fact finding, if necessary, was authorized. Also included was the language with respect to the right to strike which was included in SB 160. Because of the effectiveness of shared governance in the University of California, collective bargaining remains practically non-existent. It was an option largely rejected by University employees when the law became effective. Within the California State College and University system, however, it has become a useful mechanism for resolving employer-employee differences.
CONCLUDING COMMENTS
In 1976, Attorney Lee T. Patterson, who was involved in collective bargaining issues, commented at a conference held by the Institute of Industrial Reasons, UCLA, on the provisions of SB 160 in a rather positive manner, though he did indicate that despite the enactment of the law, there were still serious problems to be addressed. He concluded his comments with the following observation:
“...the Rodda Act is neither a panacea nor a poison. It is neither a management bill nor a labor bill. It is neither a solution nor a cause. It is neither the beginning of a brave new world nor the end of a glorious era. The Rodda Act is quite simply the opportunity for change and a challenge to employers and to employee organizations.”
His statement was certainly correct; there are issues yet to be resolved and hopefully they will be addressed by the employer and employee groups in a constructive manner.
I must observe that the history of collective bargaining indicates that much progress has been made in bringing about an improvement in the status of teachers in the public system of education. If you reflect upon the conditions that I described as prevailing in the thirties and fifties, you will recognize the positive achievements that have been made. Today, the faculties in the various segments of education are meaningfully involved in making many critical education decisions and their professional status, therefore, has been enhanced. Hopefully, they will recognize this remarkable change and in the future act realistically and constructively in manner in which they perform their enhanced role.
From my perspective, the most serious issue confronting the state and the public schools is the tendency, when the impasse experienced during employer-employee negotiations is not resolved through the utilization of mediation and fact-finding, the employees resort to concerted action, or the strike, and contend that in so doing they are conforming to the provisions of the law and, therefore, are engaging in a legal course of action. Their justification for this contention, of course, is the interpretation of the law as it-relates to the strikes.
I would appreciate it very much if the impasse situation were more effectively resolved, though I would not approve of the resolution of impasse through mandatory arbitration with binding award. Perhaps, the fact-finding phase of impasse negotiations should be abandoned and total reliance placed upon mediation as a means of resolving differences. Significant evidence, 1 am advised, indicates that fact-finding has not proven effective and has weakened, because it is an option, mediation as a means of resolving an impasse situation.
1 am definitely convinced, however, absent a change in the response of PERB and the judiciary to strike action resorted to by the employees, consideration should be given to an amendment to the law - an amendment which would strengthen the non-strike provision, but precisely delineate those conditions under which strike action would be acceptable. I will admit that such action by the legislature will not be easy to achieve.
Interpretations by the judiciary of the meaning of the collective bargaining act for K-14 with respect to the issue of the right to strike have so consistently concluded that the right to strike is not in violation of the collective bargaining act that employees today consistently affirm that there is within this state a right to strike. This is, from my perspective, a clear denial of the original intent of the law and the meaning of the law as enacted.
In 1974, or as I previously commented, when the collective bargaining legislation was under consideration, I received an opinion from the Legislative Counsel's Office to the effect that the language in the bill, SB 157, which precluded the application of Labor Code Section 923 constituted a prohibition of the right to strike and that opinion, which was relevant to SB 160, was very influential in convincing those of us involved in the legislation that it did prohibit the right to strike.
The Opinion contained the following language:
“In the absence of express legislative authorization, or implied authority such as the right to engage in other concerted activities for the purpose of collective bargaining, public employees do not have a right to strike.”
It was also concluded that injunctive action could be applied to those involved in an illegal strike action, though such action was interpreted under California law as not constituting criminal behavior. The willful disobedience of an injunction which restrained unlawful strike activities was regarded as criminal contempt, a misdemeanor, punishable as such by the court which issued the injunction.
As previously stated, despite this-interpretation or understanding of the meaning of the language in the collective bargaining act, the law has been interpreted commonly under given conditions to accept the strike as legal. That being the case, the only realistic option to keep the use of the strike within responsible limits is through the enactment of appropriate legislation.
Perhaps, however, the most constructive approach to the problem is the implementation of more effective procedures for conducting collective bargaining negotiations on the school district level. Such a course of action, accompanied with a determination on the part of school districts to make available objective and accurate fiscal data during the negotiations, would contribute to more amicable resolution of issues. Another option is the implementation of three year contracts and the utilization of what is referred to as the “bucket and trombone” approach. Under this procedure revenues recognized as certain and ongoing are divided according to a percentage distribution formula among the various segments involved—the district, faculty, and non-certificated. In other words, the “bucket” revenues are divided on the basis of an agreed upon formula. With respect to other district revenues, those which are not certain and vary consistently from year to year, the “trombone” concept is applied. In other words, given all circumstances, the uncertain or variable revenues are divided on the basis of agreed upon needs within the district, with those of the greatest need given the highest status or priority.
Hopefully, a responsible implementation of such a course of action would make the negotiations non-adversarial and therefore more constructive. It is an approach utilized in the Los Rios District and it has enhanced the ability of the District to resolve difficult fiscal problems and to address in a constructive manner the fiscal issues confronting the District. It also has the effect, of strengthening the policy that the Los Rio's District is pursuing with respect to the implementation of shared governance.
The action taken to implement a meaningful shared governance program resulted from the collective bargaining negotiations in 1984 and resulted in the creation of a Faculty/Administration Shared Governance Committee. The Committee consists of faculty union representatives, faculty senate representatives and administrators. Closely affiliated with the Shared Governance Committee is a District Goals and Budget Committee and its goal is to provide a broad base for district-wide participation in the process at the district level.
The utilization of the two, constructive and responsible collective bargaining negotiations and shared governance, is contributing to the development of an improvement in the relations between the faculty leaders and the administration. It has enhanced the self-image of the faculty and has been, therefore, a significant step in the growth of the professionalism of their activities outside of the classroom.
ADDENDUM
August 3, 1989
Peter Schrag, Editor Sacramento Bee
I was distressed over the letter written by Ed Foglia, President of the California Teachers Association, in which he contended that the Rodda Act was purposefully silent on the strike issue as a means of achieving a compromise and with the intent that the judiciary should determine the issue.
That is not an accurate statement. The Rodda Act contained the language with respect to Labor Code Section 923 (West, 1971). Similar language was included in the Winton and Russell-Rodda Acts, which preceded the Rodda Act. It was not silent.
Labor Code Section 923 was enacted in 1937 and legalized the right for employees in the private sector to engage in concerted action and to strike. The exclusion of public employees from the provisions of the act was traditionally interpreted by the judiciary as a purposeful decision by the state to exclude public employees from the strike authorization.
During the lengthy legislative negotiations over collective bargaining. Senator George Moscone authored SB-400, in 1973. It was opposed by the local school boards and school administrators, and also by both systems of higher education, since they were included in the bill. One of the reasons for the opposition was the fact that the legislation was silent on the strike issue. Those who sponsored SB 400, basically the employee organizations, were convinced at the time that the judiciary would resolve the strike issue in favor of the employees if the law were silent. The bill was placed on the desk of Governor Reagan and he vetoed it.
The United Teachers of Los Angeles and the Los Angeles Classified School Employees supported the Rodda legislation, SB 160, despite its rejection of the Labor Code Section which authorized the right to strike for employees in the private sector. Section 3549 of the Rodda Act specifically provided that “...this chapter shall not be construed as making the provisions of Section 923 of the Labor Code applicable to public school employees...”
The legislation was opposed by the CTA and the AFT for a number of reasons, including the strike issue, until it was obvious that SB 160 was the only viable legislation under consideration. At that time, they shifted their position to one of support and the bill was approved by the Legislature and signed into law by Governor Jerry Brown.
Since the enactment of the Rodda Act, the judiciary has interpreted the law to authorize the strike under limited conditions, basically when a school administration has acted contrary to the law in the conduct of collective bargaining negotiations.
Sincerely,
ASR
