Mt. Diablo Unified School District (PERB 0373EC)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MT. 	DIABLO EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
and
JOHN MILLS, 	PETER MOLINO,
CAROL YOUNG, 	CATHERINE AVINGTON,
LAURIE 	PETERSON AND LES GROOBIN,
Intervenors,
v.
MT. 	DIABLO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-452
Request 	for 	Reconsideration
and Stay of
PERB Decision No. 	373b
PERB Decision No. 	373c
October 17, 	1984
MT. 	DIABLO FEDERATION OF TEACHERS,
LOCAL 1902, CFT/AFT, AFL-CIO,
JOHN MILLS, 	PETER MOLINO,
CAROL YOUNG, 	CATHERINE AVINGTON,
LAURIE PETERSON AND LES GROOBIN,
Charging Parties,
v.
MT. 	DIABLO UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-455
Appearances; 	Margaret E. O'Donnell, Attorney 	(Breon, 	Galgani,
Godino and O'Donnell) 	for Mt. 	Diablo Unified School District;
Kirsten L. 	Zerger, 	Attorney for Mt. 	Diablo Education
Association, CTA/NEA.
Before Hesse, Chairperson; Jaeger, Morgenstern, 	and Burt,
Members.
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DECISION
JAEGER, 	Member: 	The Public Employment Relations Board
(PERB or Board), 	having duly considered the request for
reconsideration l 	submitted by the Mt. 	Diablo Unified 	School
District 	(District), 	hereby denies that request for 	the 	reasons
set 	forth 	in 	the discussion below.
DISCUSSION
The 	District 	seeks reconsideration of 	that portion of
Mt. 	Diablo Unified School District 	(8/15/84) 	PERB Decision
No. 	373b 	in which 	the Board 	found that the District made an
unlawful 	unilateral 	change 	in 	the workload of 	librarians 	in 	the
fall of 	1980. 	It asserts 	that the question of 	librarian
workload was 	not 	"fully and 	fairly" 	litigated at 	the 	hearing 	in
this matter 	and that, 	therefore, 	the Board erred in reviewing
the 	librarian 	issue as an 	"Unalleged violation." 	In addition,
the District objects 	to our 	remedy, 	which 	it perceives as
requiring 	it 	to 	rehire laid-off 	librarians.
1 PERB 	rules 	are codified 	at California Administrative
Code, 	title 8, 	section 31001 et seq. 	PERB rule 32410(a), which
governs reconsideration requests, 	provides:
(a) 	Any party to a decision of 	the Board
itself may, 	because of extraordinary
circumstances, 	file a request to reconsider
the decision. 	. 	. 	. 	The grounds for
requesting 	reconsideration 	are 	limited 	to
claims 	that 	the decision of 	the 	Board 	itself
contains prejudicial errors of fact, 	or
newly discovered 	evidence 	or 	law which 	was
not 	previously 	available 	and 	could 	not 	have
been 	discovered with 	the 	exercise 	of
reasonable 	diligence.
N	
2

Unalleged 	Violation
In PERB Decision No. 	373b, 	at pp. 	9-12, 	the Board
determined 	that 	it would 	apply 	the 	test 	for 	reviewing 	Unalleged
violations 	enunciated 	in Santa Clara Unified 	School District
(9/26/79) 	PERB Decision No. 	104 	to conduct which occurred after
the complaint was 	issued.2 It 	thereby reversed 	its
determination 	in 	Decision No. 	373 	that 	it would not extend 	the
Santa Clara 	test 	to post-complaint"conduct.
Applying 	the 	Santa Clara test, 	the Board found 	that 	the
librarian 	workload 	issue 	was 	fully 	and 	fairly 	litigated 	because
the Association 	"introduced 	several 	librarian witnesses 	to
testify 	. . . " 	and 	"[t]he 	District 	had 	the 	opportunity 	to
cross-examine witnesses, 	and with respect 	to several witnesses,
exercised that right." 	Decision No. 	373b at p. 	15. 	However,
later 	in the Decision, 	at p. 	17, 	the Board correctly noted 	that
only one librarian witness, 	Virginia Jouris, 	testified
concerning 	the 	workload 	change.
The District 	asserts 	that 	the 	issue of librarian workload
was not 	"fully and fairly litigated" 	because, 	as a matter 	of
law, 	the 	testimony of one witness 	is 	insufficient 	to carry
2Under 	the Santa Clara 	test, 	the Board may review
Unalleged conduct where: 	(1) 	the Unalleged violation 	is
related to the subject matter of the complaint; 	(2) 	the
allegedly unlawful conduct 	is part of 	the 	same course 	of
action; 	and 	(3) 	the Unalleged violation is fully and fairly
litigated.
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the burden of proof in an unfair practice case. 	As such, 	it
asserts 	that 	the Board made 	a prejudicial error 	in relying on
Jouris' 	testimony.
The District's contention is without merit. 	The
uncontradicted 	and 	unimpeached 	testimony of 	one 	witness 	is
certainly 	legally 	sufficient 	to carry 	the 	burden of proof 	in 	an
unfair practice case. 	Martori Bros. v. 	ALRB 	(1981) 	29 Cal.3d
721. 	The 	record does not reflect that the District called or
attempted to call witnesses to contradict Jouris. 	Moreover, 	in
this case, 	the 	testimony of Jouris was corroborated by
documentary evidence 	indicating 	a 	change 	in 	librarian
workload. 	Since 	the 	testimony of one witness 	is 	sufficient 	to
carry 	the charging party's burden of proof, 	so long as 	the
respondent 	has 	the opportunity 	to cross-examine 	that witness
and produce contradictory evidence, 	the 	"fully and 	fairly
litigated" 	standard 	of Santa Clara has been met.
In this case, 	it is clear, 	and the District does not deny,
that 	it was given 	the opportunity to cross-examine Jouris and
produce contradictory evidence. 	Accordingly, 	we 	find 	that 	the
Board's 	review of 	the 	librarian workload 	issue was proper 	and
no prejudicial error was committed. 	The District's 	request 	for
reconsideration of that issue is, 	therefore, 	denied.
The 	Remedy
By way of 	remedy 	for 	the 	finding 	of 	an unlawful 	unilateral
change 	in 	librarian workload, 	the 	Board ordered 	the 	District 	to
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"restore 	the workload of 	librarians 	as 	it existed prior 	to 	the
fall of 	1980 and meet and negotiate with 	the Mt. 	Diablo
Education Association, 	CTA/NEA concerning 	the workload 	of 	those
librarians."
The District now fears 	that our 	Order 	requires 	it 	to rehire
laid-off librarians. 	The District's fears are groundless. 	Our
Order 	merely requires 	the District 	to restore 	the workload 	of
librarians 	such 	that 	the hours of work 	and work 	schedules 	of
employees are at the pre-1980 	levels, 	pending the outcome of
negotiations. 	It need not rehire laid-off librarians 	to comply
with 	the Order.
ORDER
The Mt. 	Diablo Unified School District's 	request 	for
reconsideration and a 	stay of PERB Decision No. 	373b 	is DENIED.
Chairperson 	Hesse and Member 	Burt 	joined 	in 	this 	Decision.
Member Morgenstern's Dissent begins on p. 	6.
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Morgenstern, 	Member, 	dissenting: 	Consistent with the views
I 	expressed 	in Mt. 	Diablo Unified School District 	(12/30/83)
PERB Decision No. 	373 and 	(8/15/84) 	PERB Decision No. 	373b, 	I
find 	the 	evidence 	insufficient 	to demonstrate 	that 	the
District's 	change 	resulted 	in an 	increase 	in librarians' work
hours.
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