PERB Order No. A067E•Bassett Unified School District (PERB A067E)
Bassett Unified School District (PERB A067E)
PERB Order No. A067ECalperb03.07.1979
Gesamter Gesetzestext
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD BASSETT UNIFIED SCHOOL DISTRICT, Employer, and BASSETT EDUCATORS ASSOCIATION, CTA/NEA, Employee Organization, and BASSETT FEDERATION OF TEACHERS,AFT LOCAL 727, AFL-CIO, Employee Organization. ) ) ) ) Case No. LA-R-587 PERB Order No. Ad-67 Administrative Appeal July 3, 1979 ) ) ) ) ) ) ) ) ) ) ) ) ) ____________________ ) Appearances: Richard N. Fisher, Atto~ney (O'Melveny & Myers) for Bassett Unified School District; Charles R. Gustafson, Attorney for Bassett Educators Association, CTA/NEA; Lawrence Rosenzweig, Attorney (Levy & Goldman) for Bassett Federation of Teachers, AFT Local 727, AFL-CIO. Before: Gluck, Chairperson; Gonzales and Moore, Members. DECISION This case comes before the Public Employment Relations Board (hereafter PERB or Board) on appeal by the Bassett Federation of Teachers (hereafter BFT) from the Executive Assistant's dismissal of BFT's request for reconsideration of PERB's decision in Bassett Unified School District (3/23/79) PERE Order No. Ad-63. Ad-63 resulted from the Board's reconsideration of its decision in Bassett Unified
School
District
{l/30/79)
PERB
Order
No.
Aa-57.l
The
Executive
Assistant
dismissed
BFT's
request for
reconsideration
because:
[T]here
is
no
prov1s1on
in the
California
Administrative
Code,
Title
8,
Part
III,
enabling the
Board
itself
to reconsider
its
order
(Ad-63),
issued
following
the
reconsideration of
its
decision
in
Ad-57,
...
•.•
The
Board
disagrees
with
the Executive
Assistant's
interpretation
of
PERB's
rules
in
this
case;
but
finds
no
extraordinary
circumstances
justifying
a
reconsideration
of
its
decision in
Ad-63,
and
thus dismisses
BFT's Motion
for
Reconsideration.
FACTS
On
April
3,
1978,
BFT
filed
a
decertification petition
in
a
unit represented
by
the
Bassett
Educators
Association
(hereafter
BEA). A
dispute
arose
as
to
whether
the
petition
was
timely
filed
under
section
3544. 7 (b)
(1)
of the Educational
Employment
Relations
Act
(hereafter
EERA)
, 2
since
the
lThis decision
was
vacated in
Ad-63. See
Bassett Unified
School
District
(3/23/79)
PERB
Order
No. Ad-62
for the Board's
decision
to reconsider
Ad-57.
2The
EERA
is codified at
Government Code
section
3540
et
seq. Unless otherwise indicated,
all statutory references areto the
Government Code.
Section 3544.7(b) (1) provides:
No
election shall
be held
and
the
petition shall
be
dismissed whenever:
(1) There
is currently in effect
a
lawful writtenagreement negotiated
by the public school employer and
2contract between the Bassett Unified School District (hereafter District) and BEA expired on June 30, 1980. The Board, in Ad-57, decided that, given the language of the reopener clause in the contract, a window period during which a decertification petition could be filed existed in 1978. In finding the petition timely filed, the Board noted in a footnote that the window period closed on April 1, a Saturday, so that the filing on the following Monday, April 3, was timely. another employee organization covering any employees included in the unit described in the request for recognition, or unless the request for recognition isfiled less than 120 days, but more than 90 days, priQr to the expiration date of the agreement · BEA and the District filed requests for t'econsideration under PERB rule 32410.3 Among the grounds for reconsideration presented by BEA was the argument that March 31, a Friday, was the final day of the window period and that the decertification petition had been untimely filed. The ,_ Board granted reconsideration in Ad-62, supra, basing its decision on the argument that substantial errors in law or fact such as the alleged error by the Board in calculating the deadline for filing the decertification petition consititute grounds for reconsideration. .... 3 PERB rules are codified at California Administrative Code, title 8, section 31000 et seq. PERB rule 32410 provides in pertinent part: Any party to a decision of the Board itself may because of extraordinary circumstances file a request to reconsider the decision with the Board itself .... 3
In Ad-63, supra, the Board acknowledged that it had made a mistake in calculating the filing deadline. It therefore vacated Ad-57 and dismissed BFT's decertification petition. On March 26, 1979, BFT filed a request for reconsideration of Ad-63~ the request was dismissed by the Executive Assistant for the reasons noted above, and BFT has appealed that dismissal to the Board itself. DISCUSSION PERB overrules the decision of the Executive Assistant to dismiss the request for reconsideration. Under the circumstances of the case, PERB rule 324104 gives BFT the right to have its request for reconsideration reviewed by the Board itself. As we interpret our rule, the same party cannot repeatedly file requests for reconsideration. If the Board had rejected BEA 1 s request for reconsideration of Ad-57, for example, BEA would have had no right to file another request for reconsideration of the same decision. Such a right would waste the time and resources of the Board and the parties. In this case, however, the situation is different. The Board has issued a completely revised decision in Ad-63, supra, in which BFT has become the aggrieved party. BFT should now have an opportunity to present any extraordinary circumstances which might convince the Board to reconsider its revised decision. 4PERB rule 32410 is quoted in pertinent part at note 3, ante. 4
As the California Supreme Court stated in Goodrich v. Ind. Acc. Com. (1943) 22 Cal.2d 604, 611: Generally, if a party does not prevail on the original hearing and his petition for rehearing is denied, he may not again petiton for a rehearing. He must seek relief in the courts. [Citations.] However, if one party prevails in the original hearing and on rehearing the other party prevails, the first party may petition for rehearing of the order because he has for the first time become the aggrieved party ... though it may be that such petition is not a condition precedent to court review. PERB rule 32410 does not require a different result. It makes no distinction in its reference to a "decision of the Board itself" between an original decision and a new decision issued after a reconsideration. Therefore, the Board finds that it can properly entertain BFT's request for reconsideration. The Board has reviewed the request for reconsideration filed by BFT. Under PERB rule 32410, such a request must be based on extraordinary circumstances. In Ad-62, supra, the Board held that "[s]ubstantial errors of law or fact constitute grounds for reconsideration." After full consideration of the arguments presented by BFT in its request for reconsideration, the Board finds that BFT has not made the necessary strong showing that the Board made a substantial error in Ad-63, supra, nor has it presented any extraordinary circumstances justifying a reconsideration of that decision by the Board. PERB therefore denies BFT's request. 5
ORDER The Public Employment Relations Board ORDERS that the Bassett Federation of Teachers' request for reconsideration of Bass ett Unified School District_ (3/23/79) PERB Order No. Ad-63 is denied. By: /aymo;r6 J. Gonz;t'le?, Member Barbara D. Moore, Member 6
( STAfE OF CALlFORr-.lA PUBLIC EMPLOYMENT RELATIONS BOARD -eodquarters Office /23 12th Street, Suite 201 Sacramento, California 95814 (916) 322-3088 CERTIFIED HAIL March 30, 1979 Lawrence Rosenzweig Levv and Goldman 355b Wilshire Blvd., Ste. 1020 Los Angeles, CA 90010 Richard Fisher O'Nelveny & Myers 611 W. 6th Street Los Angeles, CA 90017 Charles R. Gustafson 1125 W. 6th Street Los Angeles, CA 90017 Re: BASSETT UNIFIED SCHOOL DISTRICT a:1.d BASSETT EDUCATORS ASSOCL~TIO~, CTA/~E.A, and BASSETT FEDERATION OF TEACHERS, AFT LOCAL 727, AFL-CIO - Case No. Ll..-R-587 - MOTION FOR RECONSIDERATION OF·BOARD DECISION Ad-63 . EOMUNO G. BROWN JR., Gov,.rnor Dear Parties: The following is a memorialization of a !!l.ailgram sent to all the parties in the above-captioned case on March 29, 1979. "Re: Bassett Unified School District; Hotion for Reconsideration of Board Decision Ad-63 Upon advice of General Counsel, there is no pro- vision in the California Administrative Code, Tit 1 e 8 , Part I I I , e·n ab 1 i ng the Bo a rd its e 1 f to reconsider its order (Ad-63), issued following the reconsideration of its decision in the above- captioned case, Ad-57, therefore, I dismiss the motion.
~otion for Reconsideration of Board Decision Ad-63 - 2 - Further, even in the event that such a procedure were determined to be available, there is no evidence that other_parties to this case have been served pursuant to Section 32410 of the California Administrative Code. This failure ·co comply with Section 32410 causes the filing to be deficient on its face and cannot other- wise be submitted to the Board itself. Please be advised that pursuant to Sections 32350 and 32360 of the California Administrative Code, you have a right to appeal this decision to the Board itself. Should you choose to do so, your appeal is due in this office on or before ten (10) days from date of service of this mailgram, April 9, 1979." Sincerely, J~ STEPHEN BARBER Executive Assistant to the Boara cc: Bassett USD, Dr. L. C. Pacheco, Supt. Bassett Federation of Teachers, Harold E. Day, Pres. California Teachers Assn., Gerald W. Pearson Bassett Teachers Assn., CTA/NEA Bassett Educators Assn., Xs. Penny Howard, Pres. Raoul Teilhet, California Federation of Teachers Attachment (Proof of Service)
?ROOF OF SERVICE 3Y :!.-\I: C.G.P. 102.Ja add~ess encitled cause; ~y business is 923 Sac=amenco, Galifar:tia 95814. On Marer 3n I 1 9 70 , I served the attached letter regarding Bassett Unified School District and Bassett Educators Association, CTA/NEA, and Bassett Federation of Teachers, AFT Local 727, AFL-CIO - Case No. LA-R-587 - XOT10~ FOR RECONSIDEP...A.TlON OF BOARD DECISION Ad-63 en che oarties to the case by plac~~g a tr~e copy thereof enclosed .;~ 1 · ... :: pos cage t h e::-e.on .i..u- 11 ... y prepai\.;,, •..J l.n • tn.e • _ .... a sea_ea 1 • enve ope w:..t: ... i.., follows: Uni::e.d States a.t Sacramento, California ac.ci:::-essed. as M.ai.l Lawrence Rosenzweig Levy and Goldman 3550 Wilshire Blvd., Ste. 1020 Los Angeles, CA 90010 .chard Fisher u '11el. veny & Hyers 611 W. 6th Street Los Angeles, CA 90017 Raoul' TeilhetCalifornia Federation of Teachers 2412 \Jest Magnolia Blvd. Burbank, CA 91506 Charles R. Gustafson 1125 W. 6th Street Los Angeles, CA 90017 Bassett Unified School District Dr. L. C. Pacheco, Supt. 904 N. Willow Avenue LaPuente, CA 91746 Bassett Federation of Teachers Harold E. Day, Pres. AFT Loc~l 727, AFL-CIO P. 0. Box 214 LaPuente, CA 91746 California Teachers Association Gerald W. Pearson, Services Consultant 1125 W. 6th Street Los Angeles, CA 90017 CTA/NEA Bassett Teachers Association, 315 N. Azusa Avenue West Covina, CA 91790 Bassett Educators Association Ms. Penny Howard, President 315 N. Azusa Avenue, Suite 1 West Covina, CA 91790 I declare u::cer penalty or ?e:jur7 that t~e fo~egoing is true anc co~~ect, a.~d t::..at: t:b.is decl.a.rat:ion was executed en March 30, 19 79 at: Sacramento , C.a.li=or::ia. ---------------- JACQUELHTE D IEGLE JACQUELHTE D IEGLE JACQUELHTE D IEGLE
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