Hart District Teachers Association (Mercado and Bloch) (PERB 1456EA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MARIO MERCADO,
Charging Party,
V.
HART DISTRICT TEACHERS ASSOCIATION,
Respondent.
CANDICE BLOCH,
Charging Party,
V.
HART DISTRICT TEACHERS ASSOCIATION,
Respondent.
Case No. LA-CO-801-E
Request for Reconsideration
PERB Decision No. 1456
PERB Decision No. 1456a
November
	20,
	2001
Case No. LA-CO-802-E
Appearances: Mario Mercado and Candice Bloch, on their own behalf.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request by Mario Mercado (Mercado) and Candice Bloch (Bloch) that
the Board grant reconsideration
of
its decision in Hart District Teachers Association (Mercado
and Bloch) (2001) PERB Decision No. 1456 (HDTA). In HDTA, the Board upheld the
dismissai
of
Mercado and Bloch's unfair practice charges which alleged that the Hart District
Teachers Association (Association) breached its duty of fair representation in violation
of
sections 3544.9 and 3543.6(b) of the Educational Employment Relations Act (EERA). 1
1EERA is codified at Government Code section 3540 et seq. Section 3544.9 provides
that:

After reviewing the entire record, the Board denies the request for reconsideration.
DISCUSSION
In HDT A, the Board concluded that the exceptions to the administrative law judge's
(ALJ) proposed decision were without merit and adopted the ALJ's decision as its own. 	The
ALJ had concluded that the Association had not breached its duty of fair representation when it
settled grievances filed on behalf of Mercado and Bloch without notice to them and without
their consent. Also dismissed was an allegation that the Association failed to provide Mercado
and Bloch with post-settlement information.
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 20 days following the date of service of the
decision. An original and five copies of the request for
reconsideration shall be filed with the Board itself in the
headquarters office and shall state with specificity the grounds
claimed and, where applicable, shall specify the page of the
record relied on. Service and proof of service of the request
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 the
appropriate unit.
Section 3543.6 provides, in relevant part that:
It shall be unlawful for an employee organization to:
(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 3100 l
et seq.
2

pursuant to Section 32140 are required. 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 which was not
previously available and could not have been 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.
Mercado and Bloch now seek reconsideration of the Board's decision on the grounds
that there is newly discovered evidence which demonstrates that the Association entered into
the settlement of the grievances with knowledge that Bloch's preference for new assignments
was for Valencia High School, Hart High School or a new school which was to be built at a
Stevenson Ranch site.
Mercado and Bloch offer new evidence in support of their request. They state, in part,
that:
... the Association had reason to know that Golden Valley High
School and not Stevenson Ranch was the next comprehensive
high school to open in the District. The evidence in the record
will show that Bloch had never expressed to the Association a
desire to go to Golden Valley. Also, that the Association never
discussed with Bloch at any time the subject of Golden Valley as
a possible resolution option. The evidence will further show the
Association was in possession of information as early as
November 9, 1998 that indicated that Stevenson Ranch would not
be the next comprehensive high school to open in the District. ...
Additionally, the evidence will show that the actions of the
Association in reaching settlement were arbitrary. Finally, in
reaching settlement the Association showed a total disregard for
Bloch's health and safety by agreeing to offer her a position,
without her knowledge or input, at a school site that the public at
large had concerns whether the site posed a serious health and
safety risks [sic] to persons.
3

The evidence provided in support of Mercado and Bloch's request includes a copy of
the District's mailing list. The mailing list includes the Association's president and negotiating
chairperson as individuals that receive agendas and minutes of all District board meetings.
Mercado and Bloch draw the inference that the Association representatives, because they were
on the District's mailing list, were in possession of and had read and understood District
minutes for November 9, 1998 which indicate that Golden Valley was the next tentatively
funded high school site to be built.
Mercado and Bloch attempt to portray the Association's settlement of a grievance as
arbitrary because Bloch did not receive an offer to transfer to Valencia, Hart or Stevenson
Ranch sites. Mercado and Bloch had ample opportunity at the hearing to question the
Association president regarding his knowledge of the District's plans. The newly discovered
mailing list may be evidence of how the Association is apprised of District business, however,
Mercado and Bloch had the opportunity and capability of discovering the existence of the
mailing list at the time of the hearing and could have questioned Association witnesses as to
their knowledge of District building plans. The fact that Mercado and Bloch only recently
discovered that Association officers are on a District mailing list does not warrant granting
Mercado and Bloch's request.3 Hence, Mercado and Bloch's request does not establish that
3The other evidence submitted postdated the conclusion of the hearing in this matter
and is not relevant to the Association's settlement of the grievances in January 1999.
4

there is new evidence which was not previously available and could not have been discovered
with the exercise of reasonable diligence as required by PERB Regulation 32410.
ORDER
Mario Mercado and Candice Bloch's request for reconsideration of the Board's decision
in Hart District Teachers Association (Mercado and Bloch) (2001) PERB Decision No. 1456 is
hereby DENIED.
Members Amador and Baker joined in this Decision.
5