Rio Hondo Community College District (PERB 0279EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
RIO 	HONDO 	FACULTY
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
RIO 	HONDO 	COMMUNITY
COLLEGE 	DISTRICT,
Respondent.
Case No. 	LA-CE-1157
Request 	for 	Reconsideration
PERB Decision No, 	279
PERB Decision No. 	279a
May 16, 	1983
Appearances: 	Charles R. 	Gustafson, 	Attorney for Rio Hondo
Faculty Association, CTA/NEA; 	Patrick D. 	Sisneros, Attorney
(Wagner, 	Sisneros 	& Wagner) 	for Rio Hondo Community College
District.
Before Jaeger, Morgenstern and Burt, Members.
DECISION
JAEGER, Member: 	The Public Employment Relations Board
(PERB or Board), 	having duly 	considered 	the Rio Hondo Community
College 	District's 	(District) 	request 	for 	reconsideration
pursuant 	to PERB 	rule 	32410(a)1 hereby 	grants 	that 	request 	in
part 	consistent 	with 	the 	discussion 	below.
1PERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et. 	seq. 	PERB rule 	32410(a)
provides:
(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 	5 	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 	pursuant
to Section 	32140 	are 	required. 	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.
DISCUSSION
The 	Underlying 	Decision
In Rio Hondo Community College 	District 	(12/31/82) 	PERB
Decision No. 	279, 	the Board 	found 	that 	the District violated
subsections 	3543.5(b) 	and 	(c) 	of 	the Educational Employment
Relations Act 	(Act) 	when 	it made 	unilateral 	changes 	in 	various
departments 	of 	the 	college. 	Specifically, 	the 	Board 	found 	that
the District made 	the 	following 	unlawful 	unilateral 	changes:
(1) 	it 	increased 	the 	caseload 	of Cooperative Work Experience
(CWE) 	instructors 	when 	it 	raised 	the number 	of 	students
initially assigned 	to each instructor from 125 to 140; 	(2) 	it
altered 	the method 	of 	computing 	pay 	for 	summer 	school
instructors 	in 	the 	public 	service 	department 	by making 	all
instructors 	10-month 	employees 	and 	paying 	them 	an 	hourly 	wage
for 	summer 	school 	instruction; 	(3) 	it 	increased 	the 	size of
certain courses 	in the 	business 	services 	department; 	and 	(4) 	it
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altered 	the 	compensation 	formula 	for 	physical 	science 	"field
studies" 	course 	instructors. 	The 	Board 	dismissed 	a charge
alleging 	that 	the District 	had 	unlawfully 	required 	CWE
instructors 	to teach 	"career 	development" 	courses. 	The Board
ordered 	the District 	to 	cease 	and 	desist 	from making 	unilateral
changes, 	to restore the 	status quo, 	and 	to pay back wages 	to
affected 	employees 	from 	the 	date 	of 	the 	unlawful 	conduct 	to the
present.
Grounds 	for 	Request
1. 	Increase 	in Workload 	of 	CWE 	Instructors
The District 	argues 	that 	the 	record 	does 	not 	support 	the
Board's 	finding 	that 	the 	increase 	in 	the 	number 	of 	students
initially 	assigned 	to 	each CWE 	instructor 	from 	125 	to 	140
students 	actually 	increased 	the 	caseload 	of 	those 	instructors.
The District disputes 	the Board's 	reasoning 	that, 	since 	each
CWE 	instructor 	was 	required 	to make 	initial 	contact 	with 	all 	of
the 	students 	initially 	assigned 	to him or 	her, 	an 	increase 	in
that 	number 	would 	increase 	the 	number 	of 	initial 	contacts
required 	from 125 	to 140, 	and 	that 	such 	an 	increase 	resulted 	in
a 	change 	in 	the 	workload 	of 	CWE 	instructors.
To 	demonstrate 	that 	reconsideration 	is 	warranted 	under 	PERB
rule 	32410, 	the 	petitioner 	must demonstrate 	the 	existence 	of
"extraordinary 	circumstances." 	Livermore Valley Joint Unified
School District 	(10/21/81) 	PERB Order No. 	JR-9. 	Since 	the
District merely 	reasserts 	an 	argument 	previously 	considered 	and
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rejected 	by 	the Board 	in 	the 	underlying 	decision, 	no
extraordinary 	circumstances 	justifying 	reconsideration 	exist.
Accordingly, 	the District's 	request 	for 	reconsideration of 	this
issue 	is 	denied.
2. 	Change 	in Class 	Size/Business 	Department
The District 	asserts 	that 	the Board 	erred 	in 	finding 	that
it 	unlawfully 	increased 	the 	class 	size 	of 	certain courses 	in
the 	business 	department. 	Once 	again, 	it merely 	restates 	its
argument 	that 	certain pieces 	of 	documentary 	evidence 	establish
that 	no change was made 	in class 	size. 	In the 	underlying
decision, 	the 	Board 	found 	that 	the 	preponderance 	of 	the
evidence 	indicated that class 	size was, 	in fact, 	increased.
Since 	the 	District merely reasserts 	an 	argument 	considered
and 	rejected 	by 	the Board, 	it 	demonstrates 	no 	basis 	upon which
reconsideration of 	this 	issue 	should be granted. 	Therefore,
the District's 	request 	for 	reconsideration of 	this 	issue 	is
denied.
3. 	Change 	in Computation of Pay/Public Service Department
In 	the 	underlying 	decision, 	the Board 	found 	that 	the 	past
practice 	in 	the 	District 	had 	been 	for 	full-time 	employees 	who
taught 	summer 	school 	to 	be 	paid 	by 	continuing 	their 	full-time
salary during 	the 	summer 	session. 	In 1980, 	all 	employees 	were
paid on a 10 month 	basis, 	with 	those 	employees who 	taught
summer 	school 	being 	paid on 	an 	hourly or 	overload 	basis 	for
summer 	school 	courses.
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In 	its 	amended 	charge, 	the Association alleged 	that 	"The
District 	unilaterally changed 	the 	work year 	for 	1980-81 	in 	the
Public 	Service Department. 	. . . " 	The District 	asserts 	that
nowhere 	in 	the Association's 	unfair 	practice 	charge 	is 	it
alleged 	that 	the District 	changed 	the 	computation of 	pay, 	and
that 	the 	Board 	erroneously 	found 	a 	violation 	which 	was 	not
encompassed 	by 	the Association's 	unfair 	practice 	charge.
The 	District's 	argument 	is without merit. 	Although 	the
Association's 	charge 	does 	characterize 	the District's 	conduct
as 	a change 	in "work year" 	or 	"calendar," 	the manner 	in which
the Association 	set forth 	its 	argument 	in 	its 	briefs 	and
presented 	its 	case 	at 	the 	hearing 	clearly 	indicates 	that 	its
concern was 	with 	the District's modification of 	the 	salary
schedule of 	summer 	school 	instructors. 	The District was,
therefore, 	fully on notice of 	the 	thrust of 	the Association's
charge.2 Accordingly, 	we 	find 	no 	basis 	upon which 	to grant
reconsideration on 	this 	issue. 	The District's 	request 	is
denied.
4. 	The Remedy
The 	Board 	ordered 	that 	the 	District make 	affected 	employees
whole 	from 	the 	date of 	the 	unlawful 	conduct 	"to 	the 	present."
2In any 	event, 	the 	Board 	has 	long 	held 	that 	it may
resolve 	Unalleged 	violations 	where 	the 	issue 	has 	been 	fully
litigated 	by 	the 	parties. 	Santa Clara Unified 	School District
(9/26/79) 	PERB Decision No. 	104; Modesto City Schools 	(3/8/83)
PERB Decision No. 	291. 	There 	is no question that 	the 	issue of
the District's 	unilateral 	change 	in 	the wages 	of 	summer 	school
instructors 	was 	fully 	litigated.
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The District 	urges 	the Board 	to 	take 	into 	account 	subsequent
negotiations 	between 	the 	parties 	which 	resulted 	in 	a 1981-83
collective 	bargaining 	agreement.
Subsection 	3541.5(c) 	of 	the Act 	empowers 	the 	Board 	"to
issue 	an 	order 	directing 	an offending 	party 	to 	. . . 	take 	such
affirmative 	action 	. . . 	as 	will 	effectuate 	the 	policies 	of
[the Act]." 	The Board 	has 	previously found 	that where a remedy
will 	not 	effectuate 	the purposes 	of 	the Act, 	reconsideration 	is
justified. 	Delano Union Elementary School District 	(10/15/82)
PERB Decision No. 	213a.
The 	intent 	of 	the 	Board's 	order 	was 	to remedy 	the
District's 	refusal 	to 	negotiate 	prior 	to 	taking 	unilateral
action with 	regard 	to the wages, 	hours, 	and working conditions
of 	bargaining 	unit members. 	To 	the extent 	that 	the District
reached 	agreement 	with 	the 	Association 	concerning 	the 	conduct
found 	to be 	unlawful, 	it 	has 	fulfilled 	its obligation, 	and a
remedy 	failing 	to 	take 	into 	account 	the 	existence 	of 	the
negotiated 	agreement 	does 	not 	effectuate 	the 	purposes 	of 	the
Act. 	Accordingly, 	we grant 	the District's 	request for
reconsideration of 	the 	remedy, 	and modify our 	order 	to permit
termination of 	the 	back pay 	award 	at 	the 	date 	upon which 	the
parties 	reach 	agreement 	or 	impasse.
ORDER
The Order 	in PERB Decision No. 	279 	(12/31/82) 	is AMENDED 	to
read as 	follows:
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Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case 	and 	pursuant 	to Government
Code 	section 	3541.5(c), 	it 	is 	hereby ORDERED 	that 	the Rio Hondo
Community College 	District, 	its 	governing 	board 	and 	its
representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in 	good
faith 	with 	the 	exclusive 	representative 	by 	taking 	unilateral
action 	on matters 	within 	the 	scope 	of 	representation, 	as
defined 	in 	section 	3543.2, 	and 	specifically 	with 	respect 	to:
(a) 	Increasing 	the 	number 	of 	registered 	students
for 	Cooperative Work 	Experience 	instructor/coordinators 	from
125 	to 140.
(b) 	Altering 	contract 	terms 	for 	instructors 	in 	the
public 	services 	department.
(c) 	Increasing maximum class 	size 	of 	specified
courses 	in 	the 	business 	department.
(d) 	Altering 	the 	formula 	for 	compensating 	physical
sciences 	field 	studies 	instructors.
2. 	Denying 	the 	Rio Hondo Faculty Association 	its 	right
to 	represent 	unit members 	by 	failing 	and 	refusing 	to meet 	and
negotiate 	about 	matters 	within 	the 	scope 	of 	representation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF 	THE 	EDUCATIONAL EMPLOYMENT 	RELATIONS
ACT:
1. 	Rescind 	the 	requirement 	that 	Cooperative Work
Experience 	instructor/coordinators 	maintain 	a 	caseload 	in
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excess 	of 	125 	registered 	students. 	Pay 	to Vince Glenn 	and
Irene 	Portillo overload 	compensation 	for 	all 	registered
students 	in excess 	of 	125 	from 	the 	spring 	semester 	1980 	to the
present 	or 	until 	the 	parties 	reach 	a negotiated 	agreement 	or
impasse as 	to this 	issue, 	whichever 	is 	sooner. 	If 	an
instructor 	has 	had 	a classroom 	assignment 	in addition 	to
his/her 	caseload, 	he/she 	shall 	qualify 	for 	overload 	pay 	with 	a
proportionally 	reduced 	caseload, 	consistent 	with 	existing
policy. 	Such 	payment 	shall 	include 	7 	percent 	per 	annum
interest.
2. 	Rescind 	the 	requirement 	that 	public 	services
department 	instructors' 	salaries 	be 	on 	a 10-month 	contract with
payment 	for 	the 	summer 	classes 	to be made 	on 	the 	summer 	school
scale. 	Pay 	all 	public 	services 	department 	instructors
compensation 	for 	summer 	school 	employment 	from 	1980 	to 	the
present 	or 	until 	the 	parties 	reach 	a 	negotiated 	agreement 	or
impasse as 	to this 	issue, whichever 	is sooner, on the basis of
such 	instructors 	having 	had 	a 	regular 	year 	contract 	for 	all
courses 	taught 	rather 	than 	a 	separate 	summer 	school
compensation 	rate 	for 	summer 	school 	courses. 	Such 	payment
shall 	include 	7 percent 	per 	annum 	interest.
3. 	Rescind 	the 	policy which 	increased 	the maximum
number 	of 	students 	permitted 	to 	register 	during 	the
registration 	period 	in 	the 	Introduction 	to Accounting 	and
Principles 	of Accounting A & 	B courses. 	The maximum shall 	be
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returned 	to 	the 	level maintained 	prior 	to spring 	1979. 	Pay 	to
all 	District 	instructors 	of 	Introduction 	to Accounting 	and
Principles 	of Accounting A & 	B 	courses 	overload 	pay for 	all
students 	registered 	in excess 	of 	the 	maximum class 	size 	prior
to such 	spring 	semester 	1979, 	from 	the 	spring 	semester 	1979 	to
the 	present 	or 	until 	the 	parties 	reach 	a negotiated 	agreement
or 	impasse 	as 	to this 	issue, 	whichever 	is 	sooner. 	Such
payment 	shall 	include 	7 percent 	per 	annum 	interest.
4. 	Rescind 	the 	policy which 	altered 	the 	formula 	for
compensating 	physical 	sciences 	field 	studies 	instructors, 	and
pay 	to 	affected 	employees 	the 	difference 	between 	the 	former
rate 	of 	pay 	and 	the 	altered 	rate 	of 	pay 	for 	any losses 	due 	to
the District's 	unlawful 	conduct, 	from 	the 	spring 	semester 	1980
to 	the 	present 	or 	until 	the 	parties 	reach 	a negotiated
agreement or 	impasse as 	to this 	issue, 	whichever 	is 	sooner.
Such 	payment 	shall 	include 	7 	percent 	per 	annum 	interest.
Within 	five 	(5) 	workdays 	after 	the date of 	service of
this 	final decision 	in this matter, 	post 	at 	all work locations
where 	notices 	to employees 	customarily 	are posted, 	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 	ensure 	that 	the 	copies 	are
not 	altered, 	reduced 	in size, 	defaced or 	covered with any other
material.
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Within 	twenty 	(20) 	consecutive workdays 	from the
service of 	this 	decision, 	notify the Los Angeles 	regional
director 	of 	the 	Public Employment Relations Board 	in writing 	of
the 	steps 	the 	employer 	has 	taken 	to comply with 	the 	terms 	of
this Order. 	Continue 	to 	report 	in writing 	to 	the 	regional
director 	periodically 	thereafter 	as 	directed. 	All 	reports 	to
the 	regional 	director 	shall 	be 	served 	concurrently on 	the
charging 	party herein.
C. 	All 	other 	charges 	are 	hereby DISMISSED.
Members Morgenstern 	and Burt 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY 	ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair 	Practice 	Case No. 	LA-CE-1157 	Rio
Hondo Faculty Association, 	CTA/NEA v. 	Rio Hondo Community
College 	District, 	it 	has 	been 	found 	that 	the 	Rio Hondo
Community College 	District 	violated 	the 	Educational 	Employment
Relations Act. 	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 	negotiate 	in 	good 	faith 	with 	the
Association 	by:
(a) 	Increasing 	the 	number 	of 	registered 	students
for 	Cooperative Work 	Experience 	instructor/coordinators 	from
125 	to 140.
(b) 	Altering 	the 	contract 	terms 	of 	instructors
in 	the 	public 	services 	department.
(c) 	Increasing 	the 	maximum class 	size 	of 	courses
in 	the 	business 	department.
(d) 	Altering 	the 	formula 	for 	compensating
physical 	sciences 	field 	studies 	instructors.
2. 	Denying 	the 	Rio Hondo Faculty Association,
CTA/NEA 	its 	right 	to 	represent 	unit members 	by 	failing 	to
negotiate 	in 	good 	faith 	with 	the 	Association.
B. 	TAKE 	THE 	FOLLOWING ACTIONS:
1. 	Rescind 	the 	requirement 	that 	Cooperative Work
Experience 	instructor/coordinators 	maintain 	a 	caseload 	in
excess 	of 	125 	registered 	students.
2. 	Pay 	to Vince Glenn 	and 	Irene Portillo overload
compensation 	for 	all 	registered 	students 	in excess 	of 	125 	from
the 	spring 	semester 	1980 	to 	the 	present 	or 	until 	the 	parties
reach 	a 	negotiated 	agreement 	or 	impasse 	as 	to 	this 	issue,
whichever 	is 	sooner. 	If 	an 	instructor 	had a 	classroom
assignment 	in 	addition 	to 	his/her 	caseload, 	he/she 	shall
qualify 	for 	overload 	pay 	with 	a 	proportionally 	reduced
caseload, 	consistent 	with 	existing 	policy. 	Such 	payment 	shall
include 	7 	percent 	per 	annum 	interest.
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3. 	Rescind 	the 	requirement 	that 	public 	services
department 	instructors' 	salaries 	be 	on 	a 10-month contract 	with
payment 	for 	the 	summer 	classes 	to 	be made 	on 	the 	summer 	school
scale.
4. 	Pay 	to all 	public 	service 	department 	instructors
compensation 	for 	summer 	school 	employment 	from 1980 	to 	the
present 	or 	until 	the 	parties 	reach 	a negotiated 	agreement 	or
impasse 	as 	to this 	issue, 	whichever 	is 	sooner, 	on the basis of
such 	instructors 	having 	had 	a 	regular 	year 	contract 	for 	all
courses 	taught 	rather 	than 	a 	separate 	summer 	school
compensation 	rate 	for 	summer 	school 	courses. 	Such 	payment
shall 	include 	7 	percent 	per 	annum 	interest.
5. 	Rescind 	the 	policy which 	raised 	the maximum
number 	of 	students 	permitted 	to 	register 	during 	the
registration 	period 	in 	the 	Introduction 	to Accounting 	and
Principles 	of Accounting A & 	B 	courses. 	The maximum 	shall 	be
returned 	to 	the 	level maintained 	prior 	to 	spring 	1979.
6. 	Pay 	to all District 	instructors 	of 	Introduction
to Accounting 	and 	Principles 	of Accounting A 	& 	B courses
overload 	pay 	for 	all 	students 	registered 	in excess 	of 	the
maximum class 	size 	prior 	to 	spring 	semester 	1979, 	from 	the
spring 	semester 	1979 	to 	the 	present or 	until 	the 	parties 	reach
a negotiated 	agreement 	or 	impasse 	as 	to 	this 	issue, 	whichever
is 	sooner. 	Such 	payment 	shall 	include 	7 percent per 	annum
interest.
7. 	Rescind 	the 	policy which 	altered 	the 	formula 	for
compensating 	physical 	sciences 	field 	studies 	instructors.
8. 	Pay 	to all 	affected 	physical 	sciences 	field
studies 	instructors 	the 	difference 	between 	the 	former 	rate 	of
pay 	and 	the 	altered 	rate 	of 	pay, 	from 	the 	spring 	semester 	1980
to 	the 	present 	or 	until 	the 	parties 	reach 	a 	negotiated
agreement or 	impasse as 	to this 	issue, whichever 	is 	sooner.
Such 	payment 	shall 	include 	7 	percent 	per 	annum 	interest.
Dated: 	RIO 	HONDO 	COMMUNITY 	COLLEGE 	DISTRICT
By Authorized 	Agent
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.
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