Fall River Joint Unified School District (PERB 1259EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FALL RIVER EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
FALL RIVER JOINT UNIFIED SCHOOL
DISTRICT,
Respondent.
Case No. 	SA-CE-1712
Request 	for Reconsideration
PERB Decision No. 	1259
PERB Decision No. 	1259a
June 	18, 	1998
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Appearance; 	California Teachers Association by Diane Ross,
Attorney, 	for Fall River Education Association, 	CTA/NEA.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on a 	request 	by 	the
Fall 	River Education Association, 	CTA/NEA 	(FREA) 	that 	the Board
reconsider 	its 	decision 	in 	Fall 	River Joint 	Unified School
District 	(1998) 	PERB Decision No. 	1259 	(Fall River JUSD). 	In
Fall 	River JUSD. 	the Board concluded that 	the 	Fall 	River Joint
Unified School 	District 	(District) 	unilaterally 	implemented a
teacher 	swap program without 	providing 	FREA with notice 	or 	the
opportunity to bargain over the decision or its 	effects, 	and
thereby violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment 	Relations 	Act 	(EERA).1 The 	Board
JEERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:

dismissed 	the 	allegation 	that 	by 	involuntarily 	transferring
teacher John Lennon 	(Lennon), 	the District violated the EERA by
retaliating against 	Lennon 	for his 	exercise 	of 	EERA-protected
conduct. 	The Board also dismissed the allegation that 	the
District 	violated 	the 	EERA by unilaterally 	changing 	its 	policy
governing 	the 	involuntary 	transfer 	of 	teachers.
DISCUSSION
In dismissing 	the allegation 	that 	the District 	unlawfully
retaliated 	against 	Lennon when 	it 	involuntarily 	transferred 	him,
the 	Board 	stated:
. 	. 	. 	the involuntary transfer of Lennon
resulted 	from the 	District's 	conclusion 	that
it would be 	in the best 	interests 	of 	the
special 	education program at 	Fall 	River High
School 	because 	of 	the 	deterioration of 	the
relationship between 	Lennon and 	[Fall 	River
High School 	Principal Don] 	Sandberg. 	In view
of 	that 	relationship, 	the transfer would have
occurred regardless 	of 	Lennon's 	EERA-
protected 	activity 	and was 	not 	motivated by
the District's 	desire 	to 	retaliate against
Lennon 	for 	that 	activity.
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
(a) 	Impose 	or threaten to impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
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In dismissing 	the allegation 	that 	the District 	unilaterally
changed 	its 	involuntary transfer policy, 	the 	Board 	concluded 	that
the District 	did not 	breach 	the policy 	established 	in 	the
parties' 	collective bargaining agreement 	(CBA) 	with respect 	to
the 	transfer of 	Lennon.
PERB Regulation 32410(a)2 permits any party to a decision of
the 	Board 	itself 	to 	request 	the Board 	to 	reconsider 	that
decision. 	It states, 	in pertinent part:
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.
On April 	28, 	1998, 	FREA filed the 	instant 	request 	seeking
reconsideration of 	the Board's 	decision 	in Fall 	River JUSD. 	FREA
asserts 	that 	"there 	is 	simply no evidence 	in the 	record" 	to
support 	the 	Board's 	conclusion 	concerning 	the District's 	motive
in transferring Lennon. 	Consequently, 	FREA argues 	that 	"PERB's
finding 	regarding motive was 	a prejudicial 	error."
FREA also 	seeks 	reconsideration based 	on 	the 	Board's
reversal 	in Fall 	River JUSD of 	the 	finding by a 	PERB
administrative 	law judge 	(ALJ) 	that 	the District unilaterally
changed 	its 	policy 	governing 	the 	involuntary 	transfer 	of
teachers. 	FREA asserts 	that 	the District 	took no 	exception to
this 	finding by the ALJ, 	and did not 	argue 	for the 	construction
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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of 	the parties' 	CBA which 	the Board adopted 	in dismissing 	the
allegation. 	Consequently, 	FREA argues 	that 	the Board's 	reversal
of 	the ALJ on 	this 	allegation 	constitutes 	prejudicial 	error.
In considering 	requests 	for reconsideration, 	the Board has
strictly 	applied 	the 	limited grounds 	included 	in 	PERB
Regulation 	32410 	specifically 	to avoid 	the 	use 	of 	the
reconsideration process 	to 	reargue 	or 	relitigate 	issues 	which
have 	already been decided. 	(Redwoods 	Community College 	District
(1994) 	PERB Decision No. 	1047a; 	State of California 	(Department
of Corrections) 	(1995) 	PERB Decision No. 	ll00a-S.) 	Similarly,
reconsideration will 	not 	be 	granted based 	on a 	claim of 	an
alleged prejudicial 	error 	of 	law. 	(Jamestown Elementary School
District 	(19 89) 	PERB Decision No. 	Ad-187a.) 	In numerous 	request
for reconsideration cases, 	the Board has 	declined to 	reconsider
matters 	previously 	offered by 	the 	parties 	and 	rejected 	in 	the
underlying decision. 	(California State University 	(1995) 	PERB
Decision No. 	1093a-H; 	California State Employees Association,
Local 	1000 	(Janowicz) 	(1994) 	PERB Decision No. 	1043a-S;
California Faculty Association 	(Wang) 	(1988) 	PERB Decision
No. 	692a-H; 	Tustin Unified School District 	(1987) 	PERB Decision
No. 	626a; 	Riverside Unified School District 	(1987) 	PERB Decision
No. 	622a.)
In the 	instant 	request, 	FREA asserts 	that 	the 	record in Fall
River JUSD 	contains 	no evidence 	to 	support 	the Board's 	conclusion
regarding 	the District's motive 	in transferring Lennon. 	While
FREA obviously disagrees 	with the Board's 	finding, 	this 	portion
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of 	its 	reconsideration request 	essentially 	seeks 	to 	relitigate
the 	issue of 	the District's motive. 	In reaching 	its 	finding with
regard to 	this 	issue, 	the Board 	fully considered the 	record 	in
Fall 	River JUSD and 	specifically 	referenced 	the 	facts 	of 	the 	case
which led it 	to 	its 	conclusion. 	FREA's 	claim does not
demonstrate 	that 	the 	Board's 	decision 	contains 	prejudicial 	error
of 	fact 	as 	required by PERB 	regulations.
FREA's 	request 	for 	reconsideration 	is 	also based on 	the
assertion that 	the Board's 	reversal 	of 	an ALJ's 	finding 	to which
the District 	did not 	take 	exception constitutes 	"prejudicial
error." 	Since 	FREA does 	not 	claim that 	the Board's 	decision
contains prejudicial 	error of 	fact, 	as 	required by PERB
Regulation 32410, 	its 	request 	fails 	for that reason alone.
Additionally, 	FREA's assertion, 	that 	in considering the 	cases
before 	it 	the Board 	is 	limited exclusively 	to exceptions 	and
arguments 	raised by the parties, 	reveals a misunderstanding of
the authority and role of 	PERB. 	In considering unfair practice
charges 	or alleged violations 	of 	the EERA, 	the Board has 	the
broad authority 	to 	"take 	such action and make 	such determinations
in respect 	of 	these 	charges 	or alleged violations 	as 	the board
deems necessary to effectuate 	the policies" 	of 	the 	EERA
(sec. 	3541.3(i)). 	While the Board ordinarily gives deference to
an ALJ's 	factual 	findings 	which 	incorporate 	determinations 	of
witness 	credibility, 	the Board reviews 	the 	record of 	the 	cases
before 	it de novo, 	and may review issues 	that 	have not been
raised in a party's 	exceptions when 	it 	deems 	it 	appropriate 	to do
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so. 	(Santa Clara Unified School District 	(1979) 	PERB Decision
No. 	104; 	Lake Elsinore School District 	(1987) 	PERB Decision No.
646; 	Mt. 	Diablo Unified School District 	(1984) 	PERB Decision No.
373b.) 	FREA's assertion that 	the Board's 	exercise 	of 	this
authority 	constitutes 	prejudicial 	error 	is 	without merit.
In summary, 	FREA's 	request 	for reconsideration 	fails 	to
demonstrate 	grounds 	sufficient 	to 	comply with 	PERB
Regulation 32410.
ORDER
The 	request 	for 	reconsideration 	in 	Fall 	River Joint 	Unified
School District 	(1998) 	PERB Decision No. 	1259 	is hereby DENIED.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
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