San Bernardino Teachers Association, CTA/NEA (Cooksey) (PERB 1387EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DEBORAH NEWTON 	COOKSEY,
Charging 	Party,
v.
SAN BERNARDINO 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	LA-CO-808
Request 	for Reconsideration
PERB Decision No. 	1387
PERB Decision No. 	1387a
September 	13, 	2000
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Appearance: 	Deborah Newton Cooksey, 	on her own behalf.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
AMADOR, 	Member: 	This 	case 	comes before the 	Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on a 	request 	by
Deborah Newton Cooksey 	(Cooksey) 	that 	the 	Board grant
reconsideration of 	San Bernardino Teachers Association, 	CTA/NEA
(Cooksey) 	(2000) 	PERB Decision No. 	1387 	(San Bernardino TA). 	In
San Bernardino TA, 	the Board dismissed the 	unfair practice
charge, 	which alleged that 	the 	San Bernardino 	Teachers
Association, 	CTA/NEA 	(Association) 	breached its 	duty of 	fair
representation in violation of 	sections 	3544.9 	and 3543.6(a) 	of
the 	Educational 	Employment 	Relations Act 	(EERA) 	and discriminated
against 	Cooksey 	in violation of 	EERA section 3543.6(b).1
1EERA is codified at Government Code 	section 3 54 0 	et 	seq.
EERA 	section 	3544.9 	provides:
The 	employee 	organization 	recognized 	or
certified 	as 	the 	exclusive 	representative 	for
the 	purpose 	of 	meeting 	and negotiating 	shall
fairly 	represent 	each 	and 	every 	employee 	in

After 	reviewing 	the 	entire 	record, 	the 	Board hereby denies
the 	request 	for 	reconsideration.
DISCUSSION
In 	San Bernardino TA, 	the Board concluded that 	many of 	the
allegations 	in 	the 	unfair practice 	charge were 	untimely. 	For
those 	that 	were 	timely 	filed, 	the 	Board held that 	Cooksey had
failed to 	state 	a prima 	facie 	case 	of 	a violation of 	the 	duty of
fair 	representation.
Reconsideration 	requests 	are 	governed 	by 	PERB 	Regulation
32410.2 PERB Regulation 32410(a) 	states:
(a) 	Any party to 	a decision of 	the Board
itself may, 	because of 	extraordinary
circumstances, 	file a request 	to reconsider
the decision within 2 0 	days 	following the
date of service of the decision. 	. 	. 	. 	The
grounds 	for 	requesting 	reconsideration 	are
limited to claims 	that: 	(1) 	the decision of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or 	(2) 	the party has newly
discovered evidence 	or 	law which was 	not
previously 	available 	and 	could not 	have 	been
the 	appropriate unit.
Section 3543.6 provides, 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:
(a) 	Cause or attempt 	to cause 	a public
school 	employer 	to violate 	Section 3543.5.
(b) 	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.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et 	seq.
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discovered with 	the 	exercise 	of 	reasonable
diligence. 	A request 	for 	reconsideration
based upon 	the 	discovery of 	new evidence 	must
be 	supported by 	a 	declaration under 	the
penalty of 	perjury which 	establishes 	that 	the
evidence: 	(1) 	was not previously available;
(2) 	could not 	have been discovered prior to
the 	hearing with 	the 	exercise 	of 	reasonable
diligence; 	(3) 	was submitted within a
reasonable time of its discovery; 	(4) 	is
relevant 	to 	the 	issues 	sought 	to be
reconsidered; 	and 	(5) 	impacts or alters 	the
decision of 	the 	previously decided 	case.
Cooksey now 	seeks 	reconsideration of 	the 	Board's 	decision 	in
San Bernardino TA based on two grounds. 	First, 	she 	repeats 	the
"continuing violation" 	theory raised 	in her 	appeal 	and 	argues
that 	the 	charge was 	timely filed. 	Second, 	she 	offers 	"new
substantive 	evidence." 	These grounds 	will 	be 	discussed 	in turn.
Timeliness
Cooksey argues 	that 	the 	Board's 	decision 	should be
reconsidered based 	on 	application 	of 	the 	"continuing violation"
theory. 	She 	also 	raised this 	argument 	in her 	appeal 	and the
Board 	did not 	find 	it 	convincing.
In reviewing 	requests 	for 	reconsideration, 	the 	Board has
strictly 	applied 	the 	limited grounds 	included 	in 	the 	regulation,
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. 	llOOa-S; 	Fall 	River Joint Unified School
District 	(1998) 	PERB Decision No. 	1259a.) 	In numerous request
for 	reconsideration 	cases, 	the 	Board has 	declined to 	reconsider
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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.)
Based on this 	precedent, 	we 	decline 	to reconsider
San Bernardino 	TA's 	treatment 	of 	the 	timeliness 	issue.
New 	Evidence
Cooksey 	also 	offers 	new evidence 	in 	support 	of 	her 	request
for reconsideration. 	She states, 	in part, 	that:
On May 24, 	2000 	an Administrative Hearing was
held in San Bernardino, 	CA as 	a 	result 	of
false 	charges 	brought 	against 	me 	by my 	former
employer 	San Bernardino 	City Unified 	School
District. 	At 	the 	crux of 	this 	charge was 	the
District's 	assertion that 	I 	had used Extended
Sick Leave Benefits 	improperly. 	At 	the
hearing 	[a District 	representative] 	testified
under oath that 	I, 	indeed, 	was 	entitled to
use 	Extended Leave 	Benefits 	during 	an
accommodation leave. 	This vindication
supports 	my 	claim that 	my Union
Representative, 	Mr. 	Ohlson, 	who negotiated a
settlement 	for me 	in exchange 	for my
resignation, 	rushed to 	judgment 	when he
presumed 	that 	I 	was 	guilty of professional
misconduct 	instead 	of 	considering 	me 	innocent
until 	proven guilty.
PERB Regulation 32410 	is 	quite 	specific 	regarding
reconsideration 	requests 	based on offers 	of 	new evidence. 	It
states, 	in pertinent part:
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A 	request 	for 	reconsideration 	based upon 	the
discovery of 	new evidence 	must 	be 	supported
by 	a 	declaration under 	the 	penalty of 	perjury
which establishes 	that 	the evidence: 	(1) 	was
not previously available; 	(2) 	could not have
been 	discovered prior 	to 	the 	hearing 	with 	the
exercise of reasonable diligence; 	(3) 	was
submitted within 	a 	reasonable 	time 	of 	its
discovery; 	(4) 	is relevant to the issues
sought 	to be reconsidered; 	and 	(5) 	impacts or
alters 	the 	decision of 	the 	previously decided
case.
Although 	the 	first 	four 	requirements 	are 	arguably met 	here,
the 	fifth is not. 	Cooksey's offer of evidence, 	i.e., 	a recent
hearing 	at 	which 	she was vindicated, 	would only constitute
grounds 	for 	reconsideration 	if 	it 	would 	impact 	or 	alter 	the
decision of 	the previously decided 	case. 	Even with the 	new
evidence, 	Cooksey's 	case 	contains 	a 	fatal 	flaw.
As 	stated 	in 	San Bernardino 	TA, 	the 	duty of 	fair
representation 	is 	limited 	to 	contractually based 	remedies 	under
the Association's 	exclusive 	control. 	(San Francisco 	Classroom
Teachers Association, 	CTA/NEA 	(Chestangue) 	(1985) 	PERB Decision
No. 	544 	(Chestanque).) 	PERB has 	long held that 	a union has 	no
duty to 	represent 	an employee where 	it 	does 	not 	have 	the
exclusive right 	to act. 	(See, 	e.g., 	Chestanque 	[no obligation to
represent 	teacher 	in a 	dismissal 	proceeding pursuant 	to 	the
Education 	Code].)
Cooksey's 	offer of 	the new 	"vindication" 	evidence 	arises 	in
the 	context 	of 	an unspecified 	"administrative 	hearing." 	In 	order
to 	satisfy the 	fifth requirement 	in the 	regulation, 	Cooksey must
establish that 	the 	"vindication" 	evidence 	impacts 	or alters 	the
decision of 	the previously decided case. 	It 	is not 	clear that
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the 	hearing or vindication arose 	in the 	context 	of 	a process 	over
which the Association possesses 	exclusive 	control. 	Hence,
Cooksey's 	request 	does not 	establish that 	the 	duty of 	fair
representation was 	triggered or violated, 	and 	the 	result 	in the
case 	does 	not 	change. 	Accordingly, 	the Board cannot 	grant
reconsideration.3
ORDER
Deborah Newton 	Cooksey's 	request 	for 	reconsideration of 	the
Board's 	decision 	in 	San Bernardino 	Teachers Association, 	CTA/NEA
(Cooksey) 	(2000) 	PERB Decision No. 	1387 	is hereby DENIED.
Members 	Dyer 	and Baker 	joined 	in 	this 	Decision.
3If 	a record of 	Cooksey's vindication exists, 	she may have
access 	to 	remedies 	in other 	forums. 	For the reasons 	explained 	in
the 	warning 	and dismissal 	letters 	attached 	to 	San Bernardino 	TA
and in this Decision, 	those remedies 	lie outside 	PERB's
jurisdiction.
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