Los Angeles Unified School District (United Teachers Los Angeles) (PERB 1041EA)

STATE 	OP 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED TEACHERS 	- 	LOS ANGELES,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
)
) 	Case No. 	LA-CE-3227
Request 	for Reconsideration
PERB Decision No. 	1041
PERB Decision No. 	1041a
June 	15, 	1994
)
)
)
)
)
)
)
)
Appearances: 	Taylor, 	Roth, 	Bush & Geffner by Leo Geffner,
Attorney, 	for United Teachers 	- 	Los Angeles; 	O'Melveny & Myers by
Steven M. 	Cooper, 	Attorney, 	for Los Angeles Unified School
District.
Before Blair Chair; 	Carlyle and Garcia, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on a 	request 	for reconsideration
filed by the United Teachers 	- 	Los Angeles 	(UTLA) 	of 	the Board's
decision 	in Los Angeles Unified School District 	(UTLA) 	(1994)
PERB Decision No. 	1041. 	The Board in its prior decision affirmed
the proposed decision of 	an administrative 	law judge 	(ALJ) 	which
held 	that 	a 	subject 	of 	an amendment 	to a 	complaint was 	not
included 	in any of 	the various 	unfair practice 	charges 	filed by
UTLA nor was 	any 	evidence 	introduced during UTLA's 	case-in-chief
to warrant 	such amendment, 	thus 	denying 	such amendment 	as
untimely and 	dismissing 	the 	complaint 	in question.
Having 	duly 	considered UTLA's 	request 	for 	reconsideration
and the Los Angeles Unified School 	District's 	response, 	the Board
hereby denies 	the 	request 	for the 	reasons 	that 	follow.

DISCUSSION
PERB Regulation 32410(a)1 states, 	in pertinent part:
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 was 	not 	previously
available 	and 	could not 	have been discovered
with the 	exercise 	of 	reasonable diligence.
In its 	request 	for reconsideration, 	UTLA makes 	several
claims 	that 	the matter 	it 	raised 	in 	the proposed amendment was
part 	of 	its 	amended 	charges 	and 	complaint 	and was 	included 	in 	the
evidence and testimony of 	the 	case. 	However, 	these 	same
arguments 	were 	previously 	rejected by 	the ALJ and 	the 	Board
itself. 	Further, 	UTLA attempts 	to rely on Member Garcia's
dissent 	in the underlying 	case 	to 	substantiate 	its position.
Reconsideration 	is 	not 	appropriate when a party simply
restates 	arguments 	which were 	considered 	and 	rejected by 	the
Board 	in 	its 	underlying decision. 	(California State 	Employees
Association 	(Janowicz) 	(1994) 	PERB Decision No. 	1043a-S;
California Faculty Association 	(Wang) 	(1988) 	PERB Decision
No. 	692a-H, 	p. 	4; 	Tustin Unified School District 	(1987) 	PERB
Decision No. 	626a, 	p. 	3; 	Riverside Unified School District 	(1987)
PERB Decision No. 	622a, 	p. 	2.)
UTLA's 	arguments 	were properly 	rejected by 	the 	Board 	in 	the
underlying decision. 	No newly discovered evidence 	or law is
1PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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cited. 	Relative 	to presenting evidence 	of prejudicial 	errors 	of
fact, 	the Board has 	reviewed Member Garcia's dissent 	in the
underlying decision as 	relied upon by UTLA. 	Unfortunately 	for
UTLA, 	if 	there has been the 	commission of prejudicial 	errors 	of
fact, 	it 	is 	not 	located in either the ALJ's denial 	of amendment
and dismissal 	of 	complaint 	or 	in the majority decision.
Accordingly, 	the Board finds 	that UTLA's 	request 	for
reconsideration does 	not meet 	the 	criteria 	in 	PERB Regulation
32410(a).
ORDER
There 	being 	no proper grounds 	for 	reconsideration 	stated,
the 	request 	for 	reconsideration of 	Los Angeles 	Unified School
District 	(UTLA) 	(1994) 	PERB Decision No. 	1041 	is hereby DENIED.
Chair Blair 	joined 	in 	this 	Decision.
Member Garcia's 	dissent begins 	on page 4.
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GARCIA, 	Member, 	dissenting: 	I dissent because I 	find that
the United Teachers 	- 	Los Angeles 	(UTLA) 	has met 	the 	criteria set
forth 	in 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
regulation governing 	grounds 	for 	reconsideration.1
UTLA is 	not merely 	seeking 	to have 	the 	Board 	reconsider
issues 	previously 	considered and rejected by the 	Board, 	as 	in 	the
cases 	cited by the majority. 	Instead, 	UTLA's 	request 	for
reconsideration 	identifies 	prejudicial 	errors 	of 	fact 	contained
in the administrative 	law judge's 	(ALJ) 	decision adopted by 	the
Board.
As 	I 	stated in my original 	dissent, 	the term 	"salaries"
should be 	read as 	including 	the 	concept 	of 	differentials 	based on
several 	sources 	in 	the 	file.2 The Board's 	handling of 	this
1PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et seq. 	See PERB Regulation
32410(a), 	which states, 	in pertinent part:
Any party 	to a decision 	of 	the 	Board 	itself
may 	. 	. 	. 	file a request to reconsider the
decision within 20 	days 	following 	the date 	of
service of 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.
2See PERB Regulation 32320, 	which states, 	in pertinent part:
(a) 	The Board itself may:
(1) 	Issue a decision based upon the 	record
of hearing, 	or
(2) 	Affirm, 	modify or reverse 	the proposed
decision, 	order the 	record reopened 	for the
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evidence amounted 	to a prejudicial 	error of 	fact. 	Those 	sources
included:
taking of 	further evidence, 	or take 	such
other action as 	it 	considers proper.
1. 	The District's 	final 	offer, 	which covered:
. 	. 	. 	all salary schedules and rates,
including 	those which are 	not 	calculated as 	a
percentage 	of 	regular base 	salary, 	such as
differentials, 	professional expert rates,
substitute rates, 	temporary personnel 	rates,
etc. 	[District's 	Final 	1992-93 	Economic
Offer, 	implemented October 2, 	1992; 	emphasis
added.]
2. 	The District's hearing testimony. 	During 	the hearing,
the District's 	Chief 	Negotiator 	testified as 	follows:
Q. 	At 	some point 	after 	the 	September 22
offer was made, 	did the District 	offer
to 	change 	the way 	it 	treated non-hourly
based 	differentials?
A. 	Yes. 	. 	. 	. 	our proposals up to this
point had been to reduce 	. 	. 	. 	the pay-
out 	by the District 	on 	the basic 	salary
account 	and 	so 	. . . 	we 	had made 	a
proposal 	previously 	about 	picking 	up
other payments 	that 	are made 	to
employees 	. . .
Q. 	What 	do you mean by other payments made
to 	employees?
A. 	Differentials. 	lump 	sum and hourly
rated 	differentials 	of 	various
kinds 	and we had 	[up 	to 	that point]
really 	just 	made 	proposals
affecting 	. 	. 	. 	base pay and not
things like 	. 	. 	. what they call
differential 	pay 	for performing
additional 	services, 	so what we
suggested was 	a 	so[-]called
broadening 	[of] 	the base 	for cuts.
And what 	that 	amounted to was,
instead of 	just 	zeroing 	in on basic
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pay, 	that we would propose 	that all
pay rates, 	including all 	the
differentials. 	. 	. 	. all of these
payments 	for extra duties, 	should
themselves 	be 	reduced by 	the 	same
percentage 	that 	the 	salary 	schedule
itself was being hit. 	[R.T., 	Vol.
V, pp. 	121-122; 	emphasis added.]
This 	testimony proves beyond question that, 	at 	the 	time 	it
implemented 	its 	Final 	Offer, 	the District 	intended differentials
to be 	included in the description of 	salary 	- - 	both types of pay
were 	to be 	cut by the 	same percentage, 	since both were 	"pay
rates."
3. 	The settlement between the parties. 	On May 25, 	1993,
the parties 	executed a 	settlement 	document 	containing 	this 	key
language:
Both parties 	shall withdraw/dismiss all 	1992-
93 negotiations-related litigation, 	or
claims, 	whether asserted or unasserted,
including . 	. 	. 	PERB charges, 	except for
UTLA's 	PERB 	complaint 	regarding 	coordination
of 	benefits 	under 	the 	health plan and 	the
dispute 	over bilingual 	salary 	differential
reduction. 	[Agreement, Art. 	II, 	sec. 	1.0.]
Given the evidence in the 	file, 	I 	find that 	the 	intent 	of
the underlined 	language 	conforms 	to 	the 	interpretation advanced
by UTLA, 	which is, 	the parties agreed to pursue the 	PERB
complaint 	containing two unsettled issues. 	If 	the parties 	had
intended 	to 	separate 	from the 	complaint 	the 	dispute 	over 	the
bilingual 	salary differential 	reduction, 	they 	could have 	done 	so
by 	recasting 	the 	language 	to more 	clearly delineate 	the 	two
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categories. 	As written, 	the phrase 	"PERB complaint" 	included
both 	issues 	and 	the parties 	agreed 	to 	reserve UTLA's 	right 	to
have 	PERB adjudicate 	the 	health and differentials 	issues.
The ALJ's 	failure to 	focus 	on evidence 	of 	the parties'
intent, 	such as 	the items 	listed above, 	was prejudicial 	error,
which 	the 	Board 	continued when 	it 	adopted 	the ALJ's 	decision as
the decision of 	the Board 	itself, 	and continues 	today by denying
UTLA's 	request 	for reconsideration. 	Furthermore, 	since 	the Board
does 	not 	require 	technical 	precision 	in pleading3 and since 	it
has 	the power to look at all 	documents 	in the 	file, 	it was
appropriate 	to 	carefully 	consider 	the 	types 	of 	evidence 	listed
above 	in 	construing 	the meaning of 	the 	term 	"salary." 	While 	it
can be 	expected 	in 	the 	environment 	of 	an adversarial 	hearing 	that
the ALJ will 	focus 	on 	the 	evidence 	proffered by each adversary,
and let 	each develop 	its 	own 	case, 	the 	review board has 	a broader
responsibility under 	PERB 	regulations. 	UTLA has 	identified
3See Moreno Valley Unified School Dist, 	v. 	Publi	-----	c Employmen	-- ---t
Relations Bd. 	(1983) 	142 Cal.App.3d 191, 	202-203, 	citing National
Labor 	Relations 	Board precedent:
Actions before 	the 	[NLRB] 	are not 	subject 	to
the 	technical 	pleading 	requirements 	that
govern private lawsuits. 	[Citation.] 	The
charge 	need not 	be 	technically precise 	as
long as 	it 	generally 	informs 	the party
charged of 	the nature 	of 	the alleged
violations. 	[Citations.]
Similarly, 	PERB Regulation 32615(a)(5) 	only requires 	that 	the
charge 	contain 	"[a] 	clear and concise 	statement 	of 	the 	facts 	and
conduct 	alleged to 	constitute an unfair practice." 	UTLA's 	charge
clearly 	and 	concisely 	referenced 	the 	District's 	unilateral
implementation of 	its 	offer as 	the 	conduct 	giving 	rise 	to 	the
alleged unfair practice.
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prejudicial 	errors 	of 	fact 	in the prior Board decision, 	and the
request 	for 	reconsideration 	should be 	granted.
8
a