Compton Community College District (PERB 0720EA)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	CHAPTER 45 AND
JIMMIE 	THOMPSON,
Charging 	Party,
v.
COMPTON 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-1865
Request 	for 	Reconsideration
PERB Decision No. 	720
PERB Decision No. 	720a
June 19, 	1989
Appearances; 	Lawrence Rosenzweig, 	Attorney, 	for California
School Employees Association, 	Chapter 45 and Jimmie Thompson;
Jones & Matson by Urrea C. 	Jones, 	Jr., Attorney, 	for Compton
Community College 	District.
Before Hesse, 	Chairperson; 	Porter and Craib, 	Members.
DECISION
CRAIB, 	Member: 	The Compton Community College District
(District) 	requests reconsideration of PERB Decision No. 	720,
issued by the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
on March 	1, 	1989. 	Specifically, 	the District requests that the
Board modify 	the date used 	to 	compute 	the 	District's 	liability.
The 	District urges 	that 	its 	liability 	should cease 	on July 	1,
1985, 	the retroactive date of 	its 	lawful 	implementation of 	its
last and best offer. 	However, 	that date does 	not reflect when
the parties 	exhausted 	impasse proceedings 	and when the 	District
could 	lawfully 	implement 	its 	last 	and best 	offer. 	For the
reasons 	stated below, 	we grant the District's 	request 	for
reconsideration and cut off 	the District's 	liability as 	of
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May 	12, 	1987, 	the date on which impasse procedures were exhausted
by the parties.
In Compton Community College 	District 	(1989) 	PERB 	Decision
No. 	720, 	the Board found that the District made an unlawful
unilateral 	change when 	it 	reduced 	its 	contribution to 	the benefit
plan from $2,682 	to 	$2,500 per employee. 	The unilateral 	change
took place 	in the 	context of 	reopener negotiations 	in 	1983,
during the term of the parties' 	1982-1985 	contract. 	Although the
record 	revealed 	that 	the parties 	had 	completed 	factfinding 	on 	the
reopener negotiations, 	there was 	no 	indication of whether 	further
proceedings 	took place. 	The Board took notice of 	the parties'
next 	contract 	and 	ordered 	that 	liability would 	end 	on 	its
effective date of July 	1, 	1988.
The Board's 	normal practice 	is 	to 	cut off 	liability 	if 	and
when the parties 	reach a 	subsequent 	agreement 	or 	exhaust 	impasse
procedures when the 	subject matter is 	covered. 	(See, 	e.g.,
San Diego Community College District 	(1988) 	PERB 	Decision
No. 	662, 	p. 	19; Antioch Unified School District 	(1985) 	PERB
Decision No. 	515, 	pp. 	18-20; 	Pittsburg Unified School District
(1984) 	PERB Decision No. 	318a, pp. 	3-5; 	Rio Hondo Community
College District 	(1983) 	PERB Decision No. 	279a, 	p. 	5.) 	This
policy 	is 	based on the theory that once 	either 	event 	takes 	place,
the 	bargaining 	obligation 	is 	satisfied and 	the 	aggrieved party 	is
"made whole" 	because 	it 	in the 	same position that 	it would have
been in had the violation not occurred. 	(Pittsburg, 	supra. 	PERB
N	
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Decision No. 	318a, 	pp. 	4-5; 	Rio Hondo Community College District.
supra. 	PERB Decision No. 	279a.)
Since we 	now know that 	the parties 	did 	exhaust 	impasse
procedures 	in negotiations 	for a 	successor agreement 	to 	the
1982-1985 	contract, 	that there are apparently no other
intervening 	events 	that would 	affect 	the 	liability period 	and
that 	the 	implemented 	last 	and best 	offer 	includes 	a provision on
the District's 	benefit contribution, 	it 	is 	appropriate to 	end the
District's 	liability on May 	12, 	1987. 	We reject the District's
argument 	that 	the retroactive 	effective date of 	its 	implemented
policy 	should be used as 	the 	cutoff 	date. 	The District's
bargaining obligation was 	not 	satisfied until May 	12, 	1987 	and,
unlike the 	situation of a negotiated contract, 	there was 	no
mutual 	agreement on retroactivity. 	We also 	reject 	the 	argument
of the California School Employees' 	Association 	(CSEA) 	that the
information 	concerning 	the 	exhaustion of 	impasse procedures 	and
unilateral 	implementation was 	not 	newly discovered 	evidence 	that
was 	not previously available, 	as 	required by Regulation
32410(a).1 The critical 	events did not take place until after
this 	case was 	already before 	the Board. 	The 	information was 	not
1PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 	et seq. 	Regulation 32410(a)
provides 	in pertinent part:
The 	grounds 	for 	requesting 	reconsideration
are limited to claims 	[of] 	. 	. 	. newly
discovered evidence . 	. 	. which was not
previously 	available 	and 	could 	not 	have 	been
discovered with the 	exercise 	of 	reasonable
diligence.
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discoverable prior to the 	closing of 	the 	record. 	Furthermore,
the 	lawfulness 	of 	the post-impasse 	implementation was 	at 	issue
until 	the 	issuance 	of 	Compton Community College 	District 	(1988)
PERB Decision No. 	704, on November 22, 	1988.
ORDER
The Order 	in Compton Community College District 	(1989) 	PERB
Decision No. 	720, 	is AMENDED to read as follows:
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire record in this 	case, 	and pursuant to
section 3541.5(c) 	of the Educational Employment Relations Act, 	it
is 	hereby ORDERED 	that 	the 	Compton Community College 	District
(District), 	its Board of Trustees, 	Superintendent and its agents
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and negotiate through 	statutory
impasse 	procedures 	with 	the 	exclusive 	representative 	by 	taking
unilateral 	action on matters within the 	scope of 	representation,
including 	the 	unilateral 	reduction of 	the benefit plan
contribution in September 	1983.
2. 	Denying to the California 	School 	Employees
Association 	(CSEA) 	and its 	Chapter 	45 	rights guaranteed by the
Educational 	Employment Relations Act, 	including the right to
represent members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
A	4

1. 	Compensate any affected unit 	employee 	for monetary
losses 	incurred as 	a result 	of 	the reduction of 	the benefit plan
contributions 	from the date of 	the 	change 	(September 	6, 	1983)
until 	the date the 	District 	could 	legally 	implement 	its 	last 	and
best offer on the benefit plan 	(May 	12, 	1987). 	All monetary
losses will 	include 	interest at the rate of 	10 percent per annum.
2. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision 	is 	no 	longer 	subject to reconsideration, 	post at
all work 	locations 	where 	notices 	to 	employees 	customarily are
placed, 	copies 	of 	the Notice attached as an Appendix hereto,
signed by an authorized agent of 	the 	employer. 	Such posting
shall be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to 	insure that this
Notice 	is 	not reduced in size, 	defaced, 	altered or covered by any
material.
3. 	Written notification of the actions 	taken to 	comply
with this 	Order 	shall be made 	to the 	Los Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with her 	instructions.
IT 	IS 	FURTHER ORDERED that 	that portion of 	the 	complaint
alleging 	that 	the 	Compton Community 	College 	District 	unilaterally
eliminated 	classified positions 	in July 	and 	September of 	1983,
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without 	first 	negotiating the 	effects 	of 	this 	Decision with CSEA,
is DISMISSED.
Chairperson Hesse 	joined 	in this 	Decision.
Member Porter's 	dissent begins 	on page 	7.
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Porter, 	Member, 	dissenting: 	Adhering to my position that
the record 	in this 	case does 	not 	establish an Educational
Employment Relations Act violation, 	I 	cannot 	join my colleagues
in 	imposing 	any penalty 	on Compton Community College 	District.
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APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED BY ORDER OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	LA-CE-1865, 	California
School Employees Association, 	Chapter 45 	and Jimmie Thompson v. 	Compton- .Community College District, 	in which all parties had the right to
participate, 	it has 	been found that 	the 	District violated Government
Code 	section 3543.5, 	subdivisions 	(b) 	and 	(e) 	by unilaterally reducing
its 	benefit plan contributions 	for 	classified unit 	employees 	without
affording 	the 	exclusive 	representative 	notice 	and 	the 	opportunity 	to
negotiate.
As 	a result of this 	conduct, 	we have been ordered to post 	this
notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet 	and negotiate 	through 	statutory 	impasse
procedures with 	the 	exclusive 	representative 	by 	taking 	unilateral
action on matters within the 	scope of 	representation, 	including the
unilateral 	reduction of 	the benefit plan 	contribution 	in 	September
1983.
2. 	Denying to the California 	School 	Employees Association and
its 	Chapter 	45 	rights 	guaranteed by the 	Educational 	Employment
Relations Act, 	including the right to represent members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE 	POLICIES 	OF THE 	EDUCATIONAL EMPLOYMENT RELATIONS ACT:
1. 	Compensate 	any affected unit 	employee 	for monetary 	losses
incurred as 	a 	result of 	the reduction of 	the benefit plan contributions
from the date of the change 	(September 	6, 	1983) 	until the date the
District 	could 	legally 	implement 	its 	last 	and best 	offer 	on the 	benefit
plan 	(May 	12, 	1987). 	All monetary losses will 	include interest at the
rate 	of 	10 percent per annum.
Dated: 	COMPTON COMMUNITY COLLEGE 	DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) 	CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
I)