Oakland Unified School District (PERB 0367EB)

STATE 	OF CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
Case 	No. 	SF-CE-469
Request 	for 	Reconsideration
PERB Decision No. 	367
PERB Decision No. 	367b
May 23, 	1984
Appearances; 	Andrew Thomas 	Sinclair, 	Attorney for 	Oakland
School Employees Association; 	Nancy Lowenthal, 	Attorney for
Oakland 	Unified 	School 	District.
Before Hesse, Chairperson; 	Tovar and Morgenstern, 	Members.
DECISION
MORGENSTERN, 	Member: 	The Public Employment Relations Board
(PERB or 	Board), 	having duly considered the request for
reconsideration1 filed 	by 	the 	Oakland 	Unified 	School 	District
(District), hereby denies that request.
1PERB 	rules 	are 	codified 	at California Administrative
Code, 	title 	8, 	section 31001 et seq. 	PERB rule 32410(a)
provides:
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.
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DISCUSSION
Claiming 	that 	the 	Board committed 	prejudicial 	errors 	of
fact 	constituting 	extraordinary 	circumstances 	under 	rule
32410(a), 	the District requests reconsideration of that portion
of Oakland Unified 	School 	District 	(12/16/83) 	PERB Decision
No. 	367 	in which we 	found 	that 	the 	District unilaterally
changed 	its 	subcontracting 	policy 	in violation 	of 	subsections
3543.5 (a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA).2
In the disputed portion of Decision No. 	367, 	PERB affirmed
the Administrative 	Law Judge's 	findings 	that 	the 	subject 	of
subcontracting 	unit 	work 	is 	negotiable 	(Arcohe 	Union 	School
District 	(11/23/83) 	PERB Decision No. 	360) , 	and that the extent
2The 	EERA 	is 	codified 	at Government Code 	section 	3540 	et
seq. 	All 	statutory 	references herein are 	to 	the Government
Code 	unless 	otherwise 	indicated.
Section 3543.5 provides, 	in relevant part:
It 	shall be unlawful 	for 	a public 	school
employer 	to:
(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.
(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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of 	the 	District's 	subcontracting 	increased 	substantially 	during
the 	1979-80 	school year. 	Citing 	figures 	provided by 	the
District 	of monthly expenditures 	for 	temporary 	services 	during
the 	1979-80 	school year, 	the 	Board 	found 	specifically as
follows:
The 	evidence 	indicates 	that expenditures 	for
subcontracting 	increased 	almost 	tenfold
during 	this period. 	We 	find 	that an
increase of 	this magnitude 	evidences 	a
change 	in 	the quantity and 	kind 	of
subcontracting 	in 	the 	District 	and
constitutes 	a unilateral change 	in
established policy. 	Grant Joint 	Union High
School 	District 	(2/26/82) 	PERB Decision
No. 196.
In addition, 	we 	found 	that adverse 	impact on employees 	in 	the
unit 	is demonstrated, 	and 	that 	the conditions 	listed 	in
Westinghouse Electric Corp. 	(Mansfield Plant) 	(1965) 	150 NLRB
1574 	[58 	LRRM 1257] 	as 	rendering 	subcontracting 	lawful are not
present in the instant case. 	We, 	therefore, 	ordered the
District 	to 	"Restore 	the 	status quo ante with 	regard 	to 	the
subcontracting 	of white collar 	unit work 	to 	the 	level which
existed 	in June 	1979 	prior 	to 	the 	District's 	unilateral
increase 	in 	subcontracting 	activity."
The 	District 	first objects 	to PERB's 	alleged 	finding 	"of an
almost 	tenfold 	increase 	in 	subcontracting 	activity." 	It 	argues
that 	such 	finding 	is 	erroneous 	because 	the data 	showing 	a
tenfold 	increase 	in 	expenditures 	for 	subcontracting 	represents
amounts 	paid 	rather 	than 	services 	performed 	in a given month
and does 	not 	take 	into 	account 	seasonal 	fluctuations.
w	3

The District's 	argument 	is 	fallacious. 	PERB did not make
the finding to which the District objects. 	Rather, 	we 	found
(p. 	24) 	that 	"the extent of the District's 	subcontracting
increased 	substantially during 	the 	1979-80 	school year," 	and
that 	"The 	evidence 	indicates 	that 	expenditures 	for
subcontracting 	increased 	almost 	tenfold 	during 	this 	period."
(Emphasis 	added.) 	Inasmuch 	as 	the District does not contest
the findings actually made by PERB, 	its contention 	is 	frivolous.
The 	District 	next claims 	that PERB erred 	by 	failing 	to
consider 	and make 	factual 	findings 	regarding 	the 	District's
past practice 	of 	subcontracting 	in 	the 	1977-78 	and 	1978-79
school years. 	According 	to 	the District, 	evidence 	"ignored by
PERB" 	demonstrates 	a 	significant decrease 	in 	the growth 	rate of
temporary 	use.3
The 	Board 	fully 	considered 	the 	figures 	cited 	by 	the
District 	and determined 	that 	they were not necessary 	to our
decision for 	several reasons. 	First, 	the decision 	is based on
a 	substantial 	increase within 	the 	1979-80 	school year.
Secondly, 	the District's 	figures 	themselves demonstrate a
substantial 	increase 	in 	the 	1979-80 	school year 	as 	compared 	to
3The 	District cites 	the 	following 	total 	annual
expenditures 	for 	subcontract employees:
1977-78
1978-79
1979-80
$ 	96,349
150,862
208,937
3
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either 	1977-78 or 	1978-79, 	thereby supporting, 	not refuting,
our 	decision. 	Thirdly, 	if the District 	is 	implicitly arguing
that, 	because 	it 	increased 	its subcontracting 	in 1978-79,
therefore, 	the additional 	increase 	in 	1979-80 was not a
unilateral change 	or 	the 	Oakland School Employees Association
(Association) 	acquiesced 	to 	the 	change and waived 	its 	right 	to
negotiate, 	such argument must be rejected. 	No acquiescence or
waiver 	on 	the part of 	the Association can be 	found, 	inasmuch 	as
the Association had no notice 	of 	the 	earlier 	increase 	because,
as we 	found, 	and the District does not contest, 	the 	District
unlawfully 	refused 	to 	provide 	information 	about 	its
subcontracting. 	Further, 	the Westinghouse line of cases
expressly 	address 	the duty 	to negotiate 	about a 	specific
subcontracting 	decision 	given 	a 	history 	of 	subcontracting.
These 	cases 	relieve 	an employer 	of 	the duty to negotiate 	only
in 	the 	limited circumstances where 	the 	five enumerated
conditions 	exist. 	We 	expressly 	found 	that 	those conditions 	are
not 	satisfied here, 	not only because 	the 	subcontracting - does
"vary 	significantly 	from prior 	established 	practices," 	but 	also
because 	it does have 	a 	"demonstrable 	adverse 	impact on
employees 	in 	the unit," 	and the Association did not have 	an
"opportunity 	to bargain 	about 	changes 	in 	existing
subcontracting 	practices 	at general 	negotiating 	sessions." 	For
all of 	these 	reasons, 	explicit 	findings 	about 	the District's
practice 	in 	1977-78 	and 	1978-79 	could not affect 	the 	result
UT	
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reached. 	Therefore, 	such findings are unnecessary, 	and their
absence 	is not prejudicial 	to 	the District.4
The 	District next argues 	that PERB's 	finding of a 	change 	in
the 	kind of 	subcontracting 	is without 	support 	in 	the decision
or 	the record.
Contrary 	to 	the District's 	contention, 	our 	finding of a
change 	in 	the 	kind of 	subcontracting 	is 	amply supported by 	the
record. 	In 	addition 	to the magnitude of the 	increase 	itself,
the 	increased 	use 	of 	temporary employees 	in 	order 	to maintain
100 	vacancies constitutes 	a change 	in 	the kind of
subcontracting.
Finally, 	the District claims 	that PERB's 	order 	to 	"Restore
the 	status quo 	ante 	. . . 	to 	the 	level which 	existed 	in June
1979 	prior 	to 	the District's 	unilateral 	increase 	in
subcontracting activity" 	is vague, 	ambiguous and
unenforceable. 	We do not find our 	order 	deficient. 	The order
was so phrased because it 	is 	impossible, 	on the evidence
presented, 	to calculate the precise number 	of hours contracted
out 	in the white collar unit in 	1979. 	That 	is, 	we recognized
the problems 	with 	the data provided 	by 	the 	District—namely,
lag time between employment and payment, 	seasonal 	fluctuations,
and 	the 	fact 	that a 	sizeable majority but not all of 	the
4Prejudicial 	error 	is 	error 	which 	causes 	substantial
injury and 	probably affects 	the 	result 	reached. 	The 	Regents 	of
the University of California 	(UCLA) 	(5/17/83) 	PERB Decision No.
267a-H; 	and see California Code of Civil 	Procedure 	section 475.
66

expenditures are attributable to the white collar unit. 	The
data supplied by the District provided no means of calculating
in these factors.
However, 	these deficiencies 	in the record should not
deprive employees of a remedy and in no way prevent full
consideration of these factors and any additional data offered
by the District for 	the purpose of arriving at an accurate
number 	of hours at a compliance 	hearing. 	(See, 	e.g., Alum Rock
Union School District/Mt. 	Diablo Unified School District
(9/22/81) 	PERB Order No. Ad-115; Brawley Union High School
District 	(4/7/83) 	PERB Decision No. 	266a; American Distributing
Co. v. NLRB (9th Cir. 	1983) 	115 LRRM 2046.)
ORDER
Having 	shown no 	"extraordinary circumstances" 	within 	the
meaning of rule 32410(a), 	the request for reconsideration of
PERB Decision No. 	367 is hereby DENIED.
Chairperson Hesse and Member Tovar 	joined 	in this Decision.
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