Modesto City Schools and High School District (PERB 0518EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	TEACHERS 	ASSOCIATION,
CTA/NEA.
Charging 	Party.
v.
MODESTO CITY 	SCHOOLS 	AND HIGH
SCHOOL DISTRICT.
Respondent.
Case No. 	S-CE-741
Request 	for 	Reconsideration
PERB Decision No. 	518
PERB Decision No. 	518a
June 20, 	1986
Appearances: 	Kirsten L. 	Zerger 	for Modesto Teachers
Association, 	CTA/NEA; 	Breon, 	Galgani, 	Godino & O'Donnell by
Daniel 	R. 	Fritz 	for Modesto 	City Schools 	and High School 	District.
Before Hesse. 	Chairperson; 	Burt and Craib, Members.
DECISION
BURT, 	Member: 	The Modesto 	City Schools 	and High School
District 	(District) 	requests 	reconsideration of Decision
No. 	518 	issued 	on August 	26, 	1985 	by the Public Employment
Relations Board 	(PERB or Board). 	In that decision. 	PERB found
that 	the District had violated section 3543.5(a). 	(b) 	and 	(c)
l
of 	the Educational Employment Relations Act 	(EERA or Act) 	by
lEERA 	is 	codified 	at Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein are 	to 	the Government Code.
Section 	3543.5 	provides 	in pertinent 	part:
It 	shall 	be unlawful 	for 	a 	public 	school
employer 	to:
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failing 	to 	provide 	the Modesto Teachers Association. 	CTA/NEA
(Association), 	with 	information relevant 	to 	the processing of
two 	employee 	grievances.
PERB's 	remedial 	order, 	among other 	things, 	required 	the
District 	to 	provide 	the 	information upon 	request 	by 	the
Association, 	and 	to 	refrain 	from 	interposing any procedural
objection 	such as 	timeliness 	or 	res 	judicata 	should 	the
Association 	seek 	to 	reopen either 	matter. 	The District's
Request 	for 	Reconsideration asks 	the Board 	to 	modify 	these
provisions 	of 	the 	order with respect 	to 	one 	of 	the 	grievances.
Having 	duly considered 	the District's 	request, 	the Board
hereby 	grants 	reconsideration and 	modifies 	its 	order 	with
respect 	to 	the District's 	request 	that 	a 	time 	limit 	be
established 	for 	the Association's 	right 	to 	reopen 	the
Leonard 	Choate 	grievance. 	Consistent with 	the 	discussion
below, 	the Board 	otherwise 	denies 	the Request 	for
Reconsideration.
(a) 	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.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith with 	an 	exclusive 	representative.
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BACKGROUND
The 	issue 	before 	the Board 	in Decision No. 	518 was whether
the 	District 	unlawfully 	failed 	to 	provide 	information 	relevant
to 	the 	evaluation and 	pursuit 	of 	grievances 	by 	employees
Patricia Gurney and Leonard 	Choate. 	In 	both matters, 	the
District 	failed 	or 	refused 	to 	provide 	information 	requested 	by
the Association at 	early stages 	of 	the parties' 	grievance
procedure. 	The Gurney grievance, 	nonetheless, 	was 	eventually
arbitrated 	and 	a 	decision denying 	it 	rendered 	prior 	to 	the 	time
of 	the unfair 	practice 	hearing. 	At 	the 	time 	of 	the 	hearing,
the 	Choate 	grievance was 	still 	pending after 	denial 	at 	the
second 	step of 	the grievance procedure. 	In Decision No. 	518,
the Board, 	with Chairperson Hesse 	concurring, 	concluded 	that
the 	requested 	information was 	relevant 	to 	the 	processing 	of
both grievances, 	and 	that 	the District's 	refusal 	to 	provide 	the
information violated section 3543.5(a), 	(b) 	and 	(c) 	of the EERA.
The District's 	Request 	for 	Reconsideration 	is 	directed 	at
paragraph 2 	of 	the Board's 	remedial 	order, 	which required 	it 	to:
(a) 	Upon request 	by the Modesto Teachers
Association, 	CTA/NEA, 	provide to the
Association the requested information 	. 	. 	.
regarding 	partial 	paid 	and 	personal
necessity 	leave.
(b) 	If 	the Modesto Teachers Association,
CTA/NEA, 	seeks 	to reopen the grievances
filed 	by Patricia 	Gurney and 	Leonard 	Choate,
or 	seeks 	to 	reopen an arbitration proceeding
concerning 	those 	grievances, 	refrain from
interposing 	any 	procedural 	objection 	such 	as
timeliness 	or 	res 	judicata 	to 	the 	reopening
sought 	by 	the Association.
w	3

The 	District 	has 	submitted 	unsworn 	documents 	to 	demonstrate
that 	it 	supplied 	the 	relevant 	information 	to 	the Association
prior 	to 	the 	arbitration of 	the Choate grievance, 	which took
place 	shortly 	after 	the ALJ 	issued 	his 	proposed 	decision 	in
this 	case. 	It argues 	that 	this 	obviates 	the need 	for
paragraph 2(b) 	of 	the Board's 	order, 	and asks 	that this
paragraph 	be 	deleted.
The Association 	responds 	that 	the District 	did 	not 	supply
it with 	all 	of 	the 	information 	encompassed 	by 	the 	Board's 	order
and 	that, 	in any event, 	the District's 	claim is 	appropriately
deferred 	to 	compliance 	proceedings 	under 	applicable 	Board
precedent.
DISCUSSION
2
Section 32410(a) 	of 	PERB's Regulations 	provides 	that:
The 	grounds 	for 	reguesting 	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.
1. 	Newly Discovered Evidence
In Pittsburg Unified 	School 	District 	(1984) 	PERB Decision
No. 	318a. 	PERB held 	that the 	purpose 	of 	reguesting
reconsideration 	based 	on 	newly-discovered 	evidence 	is 	to 	permit
2PERB Regulations 	are 	codified 	at 	California
Administrative Code, 	title 8. 	section 31001 et seg.
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the Board 	to 	have 	access 	to 	evidence which was 	unavailable 	at
the 	time 	of 	hearing 	and 	could 	affect 	the 	underlying
determination 	that 	the 	respondent 	did 	or 	did 	not 	violate 	the
Act. 	Pittsburg, 	supra, 	footnote 4.
However, 	reconsideration 	is 	not 	appropriate 	to determine
whether, 	as 	a factual matter, 	the respondent has 	complied with
the Board's order, 	in whole or 	in part. 	Rather, 	this 	issue
should 	be 	left 	to 	a 	compliance 	hearing 	if 	one 	is 	necessary.
Otherwise, 	the Board would 	have 	to 	resolve 	factual 	disputes
based 	upon evidence which 	is 	neither 	part 	of 	the 	original 	case
record 	nor 	subject 	to 	cross-examination. 	San Mateo 	City 	School
District 	(1984) 	PERB Decision No. 	375a.
This 	is 	consistent with 	the National 	Labor 	Relations
Board's 	approach to 	reconsideration of 	its 	decisions. 	See
Local 	5125. 	United Brotherhood 	of 	Carpenters and Joiners 	of
America 	(Grace Co.) 	(1979) 	241 NLRB 1043. 	at footnote 1.
The District 	here 	fails 	to 	meet PERB's 	test 	for
reconsideration 	based 	on newly-discovered 	evidence. 	It 	does
not 	challenge 	the Board's 	finding of 	a violation, 	nor 	does 	it
argue 	that 	the Board's 	remedy 	is 	not 	properly 	tailored 	to 	the
violation found. 	See Grace Co.. 	supra. 	Rather, 	it argues 	that
it has 	complied with paragraph 2(a) 	of 	the Board's 	order, 	and
that 	the 	event 	contemplated 	by paragraph 2(b) 	of 	the 	order--
conduct 	of 	the 	Choate 	arbitration 	based 	on 	full 	disclosure 	of
relevant 	information 	to 	the Association--has 	already 	taken
place.
s

The District's 	motion here 	is 	comparable 	to 	the 	arguments
made in San Mateo, 	supra, 	and Pittsburg, 	supra, 	in which
respondents 	argued 	that 	PERB 	should 	rescind 	orders 	to 	restore
the 	status 	quo 	ante 	in unilateral 	change 	cases 	because 	the
parties 	had 	complied with 	the Board's 	orders 	to 	bargain and 	had
reached 	collective 	agreements 	concerning 	the 	changes. 	As 	in
those 	cases. 	PERB would 	have 	to 	resolve 	the 	factual 	question of
alleged 	partial 	compliance with 2(a) 	of 	its 	order 	in order 	to
grant 	the District's 	request 	to 	delete 	2(b). 	This PERB 	cannot
do 	based 	on 	the 	unsworn 	record 	before 	it.
The District's 	arguments 	are 	simply an elaborate 	manner 	of
asserting 	that 	full 	compliance with 	the 	Board's 	order 	has
already 	occurred. 	All 	of 	these 	issues 	can and 	should 	be
resolved 	in compliance 	proceedings, 	subject 	to appeal 	to 	the
3
Board 	under 	its 	newly-adopted 	compliance 	regulation.
(Section 	32980 	became 	effective November 	9. 	1985.)
3Regulation 	32980 	states:
The General 	Counsel 	is 	responsible 	for
determining 	that 	parties 	have 	complied 	with
final Board 	orders. 	The General 	Counsel 	or
his 	designate 	may 	conduct 	an 	inquiry,
investigation, 	or 	hearing under Division 1.
Chapter 	3 	of 	these regulations, 	concerning
any 	compliance 	matter.
(a) 	In each case 	in which a 	compliance
investigation or 	hearing 	is 	conducted, 	a
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written determination 	shall 	be 	served 	on 	the
parties.
(b) 	A determination 	based 	on an
investigation may 	be 	appealed 	to 	the Board
itself 	pursuant 	to Division 1, 	Chapter 	4.
Article 2 	of 	these regulations.
(c) 	A determination 	based 	on a 	hearing may
be 	appealed 	to 	the 	Board 	itself 	pursuant 	to
Division 1. 	Chapter 	4, 	Article 	1 of 	these
regulations.
2. 	Clarification of 	the Board's Order
If 	it 	is 	determined 	in compliance 	proceedings 	that 	the
District 	must 	produce 	further 	information 	to 	comply with 	the
Board's 	order, 	the Association may exercise 	its 	right 	to 	revive
the Choate proceedings 	pursuant 	to 	paragraph 2(b) 	of 	the
order. 	Thus, 	the District's 	arguments 	that 	that 	paragraph is
ambiguous 	must 	be 	addressed.
PERB 	has 	held 	that 	reconsideration 	is 	justified where 	a
remedy will 	not 	effectuate 	the 	purposes 	of 	the Act. 	San Mateo.
supra; 	Pittsburg, 	supra. 	In essence, 	the District contends
that 	an 	order 	permitting 	the Association 	an unlimited 	time 	to
reopen the Choate 	grievance 	and 	permitting 	it 	to 	"retry" 	the
Choate 	grievance 	before 	a 	new arbitrator 	will 	not 	effectuate
the 	purposes 	of 	the Act.
a. 	The 	Time Limit
Both parties 	concur 	that 	a 	time 	limit 	on 	the Association's
right 	to 	reopen 	the 	Choate 	grievance 	is 	appropriate. 	Since 	the
arbitral 	process 	is 	favored 	in part 	because 	it 	allows 	for
7

prompt 	resolution of 	disputes, 	a 	time 	limit 	is 	consistent with
the 	purposes 	of 	the Act. 	The Board's 	order 	permitting
reopening 	of 	the 	grievance 	serves 	the 	purpose 	of 	permitting 	the
Association 	to 	base 	its 	decision whether 	to 	arbitrate 	the
grievance 	on all 	the 	information to which 	it 	is 	entitled.
Therefore, 	an appropriate 	time 	limit 	is 	one which allows 	the
Association 	a 	reasonable 	period 	in which 	to 	evaluate 	any
additional 	information 	produced 	by 	the District.
The District 	proposes 	a 	limit 	of 	30 	to 	45 	days 	from the
date 	of 	PERB's 	final 	order 	in this 	case. 	Since 	the 	parties
dispute whether 	the District 	has 	complied with 	the 	order 	to
produce 	information, 	any time 	limit 	based 	on the 	date 	of 	the
Board's 	final 	order 	must 	allow for 	resolution of 	this 	dispute
in compliance 	proceedings 	and 	for 	production of 	additional
information by the District. 	As 	noted above, 	the District has
contended 	that 	production 	of 	this 	information will 	be 	time
consuming. 	Thus. 	30 	to 	45 	days 	from the final 	order 	may well
be 	too 	short 	a 	time for 	this 	purpose.
The Association proposed 	a 	limit 	of 	60 	days 	from 	the 	date
of 	the District's 	compliance with PERB's 	order 	to 	produce
information 	in the Choate 	grievance. 	Sixty days 	is 	an
excessive 	period, 	given the 	limited 	nature 	and 	purpose 	of 	the
information. 	The Association needs 	only 	to 	determine whether
the 	information 	as 	to 	leaves 	denied 	sufficiently 	strengthens
its 	disparate 	treatment 	theory as 	to warrant 	reopening 	the
8

grievance. 	Once the Association receives 	the 	information, 	it
will 	hardly need 	60 	days 	to make 	this 	determination.
An order 	granting 	the Association 	30 	days 	from 	the 	date 	of
the District's 	compliance with 	the 	order 	to 	produce 	information
in which 	to 	reopen 	the 	grievance will 	achieve 	the Board's
purposes 	in this matter.
b. 	Reopening of 	the Arbitration
The District asserts 	that 	the Board's 	order 	is 	ambiguous 	in
that 	it 	could 	be 	read 	to 	permit 	the Association 	to 	file 	a 	new
Choate grievance, 	leading 	to arbitration before a 	new
arbitrator. 	It 	argues 	its 	proposed 	restriction on 	the
Association's 	right 	to 	reopen the Choate matter will 	effectuate
the 	purposes 	of 	the Act 	because 	it will 	meet 	the 	concerns which
prompted 	the 	remedial 	award 	without 	unduly 	punishing 	the
District, 	and will 	avoid 	instability 	in the 	collective
bargaining 	relationship 	by giving 	the 	appropriate 	measure 	of
finality 	to 	the 	decision 	of 	the 	mutually-selected 	arbitrator.
The District 	suggests 	that 	the 	issue 	is 	strictly an
ambiguity 	in 	the Board's 	order 	which depends 	solely on 	the
Board's 	intent. 	Under 	this approach, 	resolution of 	the
ambiguity would 	not 	depend 	on 	the 	taking 	of 	additional
evidence, 	and 	it 	could 	be 	resolved 	on a motion for
4
reconsideration. 	However, 	we 	have 	concluded 	that 	this
4see Alum Rock Union School 	District/Mt. 	Diablo 	Unified
School District 	(1981) 	PERB Order No. 	Ad-115, 	in which
respondents 	filed 	a motion to 	reopen a 	hearing for 	purposes 	of
99

aspect 	of 	the 	District's 	request 	is 	inseparable 	from the
newly-discovered 	evidence 	attached 	to 	its 	pleadings, 	and 	that,
under Pittsburg, 	supra, 	and San Mateo, 	supra, 	it is properly
deferred 	to 	compliance. 	We 	reach 	this 	conclusion 	for 	the
following 	reasons.
taking 	additional 	evidence 	to 	clarify an ALJ's 	proposed 	order.
PERB 	denied 	the motion on grounds 	that 	ambiguities 	in 	the 	order
could 	be 	clarified 	by the Board 	in ruling on exceptions 	or, 	if
the 	taking 	of 	additional 	evidence were 	required 	to 	resolve
them, 	they could 	be 	resolved 	in compliance proceedings. 	Thus,
the 	critical 	question under Alum Rock 	is whether 	resolution of
an 	asserted 	ambiguity 	requires 	the 	taking 	of 	additional
evidence.
When the Board 	issued 	this 	order, 	it 	had 	before 	it 	the
Choate grievance, 	which was 	pending after 	Step 	II 	of 	the
parties' 	grievance procedure, 	and the Gurney grievance, 	in
which arbitration had 	been completed. 	In this 	context, 	the
Board 	ordered 	the District 	as 	to 	both cases 	to 	refrain 	from
interposing 	procedural 	objections 	to 	the 	reopening 	of 	the
55grievances 	or. of 	an arbitration proceeding. 	If 	the Board
-
intended 	for 	the Association 	to 	have 	the 	option 	to 	reopen 	the
Gurney grievance 	at 	either 	the 	grievance 	or 	arbitration 	stage,
this 	same 	provision would 	logically 	apply 	to 	the 	Choate
grievance. 	This would 	certainly 	be 	consistent with 	the
underlying 	rationale 	of 	the Board's 	decision, 	that 	information
must 	be 	provided 	in order 	to 	permit 	the Association 	to 	evaluate
5lt 	should 	be 	noted 	that 	the District 	did 	not 	argue 	in
its 	exceptions 	to 	the ALJ's 	proposed 	decision 	that 	the Board's
Order 	should 	require 	that 	the 	Gurney 	grievance 	be 	reopened
before 	the 	arbitrator 	who 	had 	originally 	heard 	it.
10

and 	process 	grievances 	and 	to 	decide whether 	to 	arbitrate
them. 	In order 	to 	restore the status quo ant----e 	in this 	case, 	it
is 	appropriate 	to 	place 	the Association 	in the 	position 	it
would 	have 	been 	in 	had 	the District 	provided 	the 	information
when 	it was 	originally requested. 	The District 	took 	the 	risk
that 	the Association would 	get 	this 	second 	bite 	at 	the 	apple
when 	it 	went 	forward 	with 	the 	arbitration with 	full 	knowledge
that 	the ALJ's 	proposed 	order, 	which was 	then on appeal 	to 	the
Board, 	might 	be enforced 	in full.
Although 	its 	policy 	arguments 	logically 	apply 	equally 	to
the Choate 	and Gurney grievances, 	the District 	apparently has
no 	objection 	to 	settling 	in 	compliance 	proceedings whether 	the
Association may file 	a 	new Gurney grievance 	or 	is 	required 	to
reopen that matter 	before 	the 	same arbitrator. 	In effect, 	the
District 	is 	asking 	the Board 	to 	give 	some weight 	to 	the
Association's 	apparent 	choice 	to 	proceed 	to 	arbitration 	in 	the
Choate 	matter 	even 	though 	the ALJ's 	order 	was 	still 	on 	appeal.
The District's 	argument 	must 	be 	evaluated 	in 	light 	of 	evidence
relevant 	to 	the Association's 	decision to 	proceed, 	which 	is 	all
that 	distinguishes 	the 	Choate 	grievance 	from 	the 	Gurney
grievance.
The District 	does 	not 	dispute 	that 	reopening 	the 	Choate
proceedings 	at 	an appropriate 	stage 	is 	a 	proper 	remedy 	for 	its
violation of 	the Act. 	Rather, 	it presents 	an argument as 	to
what 	is 	the 	appropriate 	stage 	for 	reopening 	in 	light 	of 	events
which occurred 	after 	the 	hearing 	in 	this 	case. 	Arguments 	that
11

subsequent 	events 	have 	affected 	the 	scope 	of 	compliance
obligations 	are 	properly 	presented 	in 	compliance 	proceedings
pursuant 	to 	section 	32980. 	The 	fact 	that 	the 	factual 	issues
may 	be 	complex 	and 	may 	involve 	questions 	related 	to 	broader
issues 	of 	effectuation of 	the Act's 	purposes 	does 	not 	preclude
deferring these matters 	to 	compliance proceedings, 	particularly
since 	the Board 	now has 	in place Regulation section 	32980. 	See
NLRB v. 	Ironworkers. 	Local 433 	(9th Cir. 	1979) 	[101 LRRM 3119],
at 	3124, 	where 	the 	court 	notes 	an extensive 	list 	of 	cases 	in
which 	complex 	factual 	determinations 	have 	been 	deferred 	to
compliance 	proceedings.
NATURE 	OF 	THE VIOLATION
In her 	dissent. 	Chairperson Hesse 	discusses 	an 	issue 	not
raised 	by any party to 	this 	proceeding, 	either 	in 	the
underlying case, 	or 	as a 	request for 	reconsideration. 	Relying
on minor 	differences 	of 	language 	between 	the National 	Labor
Relations Act 	(NLRA) 	and 	the EERA, 	she would 	find 	that 	the
refusal 	to 	produce 	information 	relevant 	to 	the 	processing 	of
grievances 	during 	the 	term of 	an agreement 	should 	be 	a
violation of 	3543.5(a) 	and 	(b) 	and does 	not violate 	the duty to
meet 	and 	negotiate 	in good 	faith.
In so finding, 	she relies on NLRB v. 	Acme 	Industrial Co.
(1967) 	385 U.S. 	432 	for 	the proposition that specific 	language
peculiar 	to 	the NLRA dictates 	that 	the 	duty 	to 	bargain
collectively 	continues 	beyond 	contract 	negotiations. 	Since
12

that 	language 	is 	not present 	in EERA, 	she reasons 	that 	the duty
does 	not 	extend 	to 	labor-management 	relations 	during 	the 	life
of 	the contract, 	and she would, 	therefore, 	find that the
refusal 	to 	turn over 	information here was 	not 	a violation of
the 	duty 	to 	meet 	and 	negotiate 	in 	good 	faith.
We believe 	the dissent misinterprets Acme, 	supra. 	The
court 	there 	begins 	its 	discussion 	by acknowledging 	that:
There 	can be no 	question of 	the 	general
obligation of 	an employer 	to 	provide
information 	that 	is 	needed 	by the 	bargaining
representative 	for 	the 	proper 	performance 	of
its duties. 	NLRB v. 	Truitt Manufacturing
Co. 	(1956) 	351 U.S. 	149 	[38 LRRM 2042].
Similarly, 	the duty to 	bargain
unquestionably 	extends 	beyond 	the 	period 	of
contract 	negotiations 	and 	applies 	to
labor-management 	relations 	during 	the 	term
of 	an agreement. 	NLRB v. 	C & C. 	Plywood
(1967) 	385 U.S. 	421 	[64 LRRM 2065]. 	NLRB V.
F. W. Woolworth Co. 	(1956) 	352 U.S. 	938 	[39
LRRM 2151]. 	The only real 	issue 	in this
case, 	therefore, 	is whether 	the Board must
await 	an arbitrator's 	determination of 	the
relevancy 	of 	the 	requested 	information
before 	it 	can enforce 	the union's 	statutory
rights under section 8(a)(5).
The 	court went 	on to 	review various 	sections 	of 	the 	law
defining 	collective 	bargaining 	in order 	to 	find 	that 	the 	Board
was 	not 	deprived 	of 	its 	jurisdiction because 	of 	the 	existence
of 	the 	arbitration procedure. 	The 	court 	did 	not 	find 	that 	the
duty 	to 	bargain 	extended 	beyond 	the 	signing 	of 	the 	contract
because 	of 	the 	language 	on which the 	dissent 	relies.
The 	Supreme 	Court's 	view that 	the 	duty 	to 	bargain 	is
consistent with 	its 	earliest 	decisions 	interpreting 	the NLRA.
-
13

See NLRB V. 	Sands Mfg. 	Co. 	(1939) 	806 U.S. 	332 	[4 LRRM 530].
It 	is 	also 	consistent with 	the 	court's 	understanding 	of
collective 	bargaining 	as 	expressed 	in 	cases 	arising under 	other
statutes. 	For 	example, 	in a 	somewhat different context 	the
court 	explicitly 	stated 	that:
Collective 	bargaining 	is 	a 	continuous
process. 	Among other 	things, 	it 	involves
day-to-day adjustments 	in 	the 	contract 	and
other working rules, 	resolutions 	of new
problems 	not 	covered 	by existing 	agreements,
and 	the 	protection of 	employee 	rights
already secured 	by 	contract. 	Conley v.
Gibson 	(1957) 	355 U.S. 	41 	[41 LRRM 2089].
Conley was 	decided under 	the Railway Labor Act, 	which 	is
also 	devoid 	of 	the NLRA 	language upon which 	the 	dissent 	relies.
Collective 	bargaining 	could 	not 	be 	otherwise 	than ongoing.
The 	Board 	previously made 	this 	point. 	In Jefferson 	School
District 	(1980) 	PERB Decision No. 	133. 	rev.den. 	(7/1/83)
1 Civil 	50241. 	the Board 	stated:
. 	. 	. 	It is well settled that administration
of 	the 	contract 	is 	an essential 	part 	of 	the
collective 	bargaining 	process 	. . . .
Jefferson, supra, at p. 	54.
The 	signing of 	a 	contract 	does 	not 	extinguish 	the 	duty 	to
bargain, 	but 	rather memorializes 	the parties' 	agreement on
matters 	about which they have 	negotiated. 	It may serve 	as 	a
waiver 	of 	the duty to 	bargain, 	but 	the 	extent 	of 	the waiver 	is
itself 	negotiated. 	The 	contract 	may not 	cover 	all 	matters
within scope; 	new issues will 	often arise which were 	not
contemplated 	by the parties 	to 	the 	agreement. 	Further, 	the
14

signing of 	the 	contract, 	and 	the 	agreement 	to 	be 	bound 	by 	its
provisions, 	implies 	an ongoing 	role 	for 	the 	exclusive
representative 	in assuring that 	its members, 	as well 	as 	the
employer, 	live up to the bargain.
The 	entire 	statutory 	scheme 	of 	EERA 	is 	consistent with 	this
result. 	Section 	354O(h)6 defines 	meeting and 	negotiating 	to
include 	not 	only good-faith efforts 	to 	reach agreement, 	but
also 	provision for 	the 	execution of 	a 	contract 	to 	incorporate
the agreement 	of 	the 	parties, 	if 	requested 	by either 	party.
Clearly, 	the 	statute 	contemplates 	not 	simply meeting and
conferring 	to 	reach agreement, 	but 	an 	executed 	agreement whose
terms 	bind 	the parties 	over 	an agreed-upon 	length of 	time. 	To
us. 	there 	is no question that 	the parties' 	duty to negotiate
does 	not 	simply end 	upon 	reaching 	agreement, 	because
6Section 3540(h) 	provides:
(h) 	"Meeting and 	negotiating" 	means
meeting, 	conferring, 	negotiating, 	and
discussing 	by 	the 	exclusive 	representative
and 	the 	public 	school 	employer 	in a 	good
faith 	effort 	to 	reach agreement 	on matters
within 	the 	scope 	of 	representation and 	the
execution, 	if 	requested by either party, 	of
a 	written 	document 	incorporating 	any
agreements 	reached, 	which document 	shall,
when 	accepted 	by 	the 	exclusive
representative 	and 	the 	public 	school
employer, 	become 	binding upon both parties
and, 	notwithstanding Section 3543.7, 	shall
not 	be 	subject 	to 	subdivision 2 	of 	Section
1667 	of 	the Civil Code. 	The agreement may
be 	for 	a 	period 	of 	not 	to 	exceed 	three years
15

section 	354O(h) 	does 	more 	than focus 	only on that 	time when 	the
parties 	strive 	to 	reach agreement.
For 	the 	reasons 	above, 	we 	believe 	that 	the duty to
negotiate 	continues 	beyond 	the 	execution 	of 	the 	contract 	and
include 	labor 	relations 	during the 	term of 	the 	contract. 	We,
therefore, 	find 	that 	failure 	to 	provide 	information necessary
and 	relevant 	to 	the 	processing 	of 	grievances was 	properly found
to be a violation of section 3543.5(c) 	and, 	derivatively, 	of
subsections 	(a) and (b).
ORDER
The 	Board 	hereby GRANTS 	reconsideration of 	its 	Decision 	in
Modesto 	City Schools 	and High School District 	(1985) 	PERB
Decision No. 	518 	for 	the 	limited 	purpose 	of 	clarifying 	its
Order 	to 	provide 	that 	the Association may 	reopen 	the
Leonard 	Choate matter 	pursuant 	to 	paragraph 	2(b) 	of 	the Board's
Order within 	30 	days 	of 	the Modesto 	City Schools 	and High
School District's 	compliance with paragraph 2(a). 	In order 	to
effectuate 	the 	purposes 	of 	the EERA, 	this 	codification will
apply 	to 	the Patricia Gurney 	grievance 	as 	well.
The Order 	in this 	case 	is, 	therefore, 	modified 	to 	read as
follows:
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in the 	case, 	it 	is 	hereby ORDERED that
the Modesto 	City 	Schools 	and High 	School 	District 	and 	its
representatives 	shall:
16

1. 	CEASE AND DESIST FROM:
(a) 	Failing and 	refusing 	to 	provide 	the Modesto
Teachers Association. 	CTA/NEA, 	with all 	relevant 	information
and 	documents 	needed 	by 	the 	Association 	to 	prosecute 	contract
grievances 	on 	behalf 	of 	certificated 	employees 	of 	the District.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF 	THE ACT:
(a) 	Upon request 	by the Modesto 	Teachers Association.
CTA/NEA, 	provide 	to 	the Association 	the 	requested 	information
regarding art 	classes 	at Downey High 	School, 	and 	regarding
partial 	paid 	and 	personal 	necessity 	leaves.
(b) 	If. 	within 30 days 	of 	full 	compliance by the
District with the 	terms 	of 	paragraph 2(a) 	above, 	or within
30 days 	of 	the date of 	this Order, 	whichever 	is 	later, 	the
Modesto Teachers Association, 	CTA/NEA, 	seeks 	to reopen the
grievances 	filed 	by Patricia 	Gurney and 	Leonard 	Choate. 	or
seeks 	to 	reopen 	an 	arbitration 	proceeding 	concerning 	those
grievances, 	refrain from 	interposing 	any procedural 	objection
such as 	timeliness 	or 	res 	judicata 	to 	the 	reopening 	sought 	by
the Association. 	If 	the District 	claims 	that 	it 	substantially
complied with 	paragraph 	(a) 	during 	the 	arbitration 	proceedings,
and 	if 	it 	is 	determined 	in compliance 	proceedings 	that 	the
District 	did 	so, 	there 	shall 	be no 	right 	to 	reopen.
(c) 	Within thirty-five 	(35) 	days 	following the date
of 	service 	of 	this Decision, 	post 	at 	all work 	locations where
notices 	to 	employees 	customarily are placed, 	copies 	of 	the
17

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.
(d) 	Written notification of 	the 	actions 	taken to
comply with 	this 	Order 	shall 	be 	made 	to 	the 	Sacramento 	regional
director 	of 	the 	Public Employment 	Relations 	Board 	in accordance
with his 	instructions.
Member 	Craib 	joined 	in 	this 	Decision.
Chairperson Hesse's 	Concurrence 	and Dissent 	begins 	on page 	19.
18

Hesse, 	Chairperson, 	concurring and dissenting: 	I 	concur
with 	the 	majority 	ruling 	that 	a 	request 	for 	reconsideration 	is
not 	the 	appropriate 	method 	for 	resolving 	whether 	the 	District
has 	complied with the 	Board order 	in PERB 	Decision No. 	518. 	If
the 	parties 	cannot 	reach 	agreement 	on 	this 	and 	related 	issues,
resolution must 	be 	accomplished 	through 	a 	compliance 	proceeding.
In 	the proceeding, 	the parties 	may 	introduce 	evidence 	and
make 	arguments 	as 	to whether 	the 	District has 	substantially
complied with 	the 	Board order. 	It 	is 	there 	that 	the parties 	can
best 	resolve 	whether 	evidence 	regarding 	leaves 	denied, 	as 	opposed
to granted, 	is 	necessary and 	relevant 	to the Choate 	grievance.
Nevertheless, 	I 	disagree with portions 	of 	the majority's
decision. 	The majority defers 	to PERB's 	compliance procedure
the 	policy 	decision of 	whether 	the Association may pursue 	the
arbitrations before 	new arbitrators, 	or whether 	it 	is 	limitedrto
reopening 	the 	record with 	the 	same 	arbitrators. 	It 	is highly
inappropriate 	to 	assign 	this 	type 	of 	decision 	to a 	compliance
officer. 	This 	is 	not 	the 	kind of 	issue 	in which an evidentiary
hearing would be beneficial. 	When 	the 	original 	order 	was 	issued,
the 	Board 	intended 	either 	to 	allow 	a 	completely 	new 	grievance 	and
arbitration process, 	or 	to limit 	the parties 	to reopening 	the
cases 	with the 	original 	arbitrators. 	I 	would 	find 	that 	the 	Board
intended 	the parties 	to reopen 	the 	matters 	before 	the 	arbitrators
that 	they previously chose 	for 	the 	resolution of 	these 	disputes.
Also, 	I 	am concerned by the Association's 	stance 	at 	the
Choate 	arbitration. 	While 	the 	Board 	itself was 	deliberating on
19

exceptions 	taken 	to 	the 	decision of 	PERB's 	administrative 	law
judge, 	the Association processed a grievance 	through arbitration.
Prior 	to the arbitration, 	and at the arbitrator's 	request, 	the
District 	produced 	information pertaining 	to 	requests 	for
"personal 	necessity 	leave" 	and 	"partial 	paid 	leave," 	where 	those
requests 	were granted. 	The District, 	however, 	did not produce
records 	of 	those 	leave 	requests 	which were 	denied.l
Although 	this 	issue 	remained unresolved, 	the Association
wanted 	to proceed 	with 	the 	arbitration, 	with 	the 	understanding
that 	the 	arbitrator's 	award would be 	subject 	to vacation, 	and
that 	the 	record 	would be 	subject 	to being 	reopened 	for 	the
taking of 	additional 	evidence. 	The District, 	instead, 	wanted a
continuance pending 	the 	outcome 	of 	the 	Board's 	decision 	in 	the
case. 	The 	arbitrator denied 	the 	District's 	request, 	thus 	forcing
it 	to 	litigate 	the 	Choate 	grievance 	as 	the Association wished.
However, 	the 	District prevailed at 	the 	Choate 	arbitration. 	Now,
instead 	of 	asking 	to 	reopen 	the 	record 	before 	Arbitrator
Donald H. 	Wollett, 	the Association wants 	to process 	the 	Choate
grievance 	and 	obtain 	a 	de 	novo hearing before 	a new 	arbitrator.
The Association has 	no basis, 	statutorily or 	contractually,
to relitigate 	the Choate arbitration. 	Rather, 	it 	steadfastly
maintained 	the 	right 	to present 	any new 	evidence 	(new 	to 	the 	old
-
arbitrator) 	the 	District may be 	forced 	to provide. 	It 	is 	also
apparent 	that 	the 	Association 	agreed 	to 	reopen 	the 	decision 	with
•'-The 	arbitrator 	ruled 	that 	the 	information need 	not be
provided.
20

the 	same arbitrator, 	i.e., 	Arbitrator Wollett. 	Since 	I 	find
that 	this 	was 	the Board's 	intent 	in the original 	order, 	I would
limit 	the 	Association's 	right 	to 	reopening 	the 	record 	and
processing 	the 	Choate 	arbitration before 	the 	same 	arbitrator.
2
I 	have 	reviewed 	the 	original 	charges 	and 	now 	find 	that
the ALJ and 	the 	Board erred 	in 	its 	Decision No. 	518 	finding of
an EERA section 3543.5(c) 	violation 	in this 	case. 	I 	still
concur 	with 	the 	decision on 	the 	finding 	that 	the 	District
violated 	EERA by 	its 	failure 	to provide 	necessary 	and 	relevant
information. 	But, 	I 	simply disagree with the 	finding of 	a
3543.5(c) 	violation. 	In reconsidering the 	facts 	in this case, 	I
would hold 	that 	a 	finding 	of 	a 	violation 	of 	EERA 	section
3543.5(a) 	and 	(b) 	is warranted. 	In reaching this conclusion, 	I
find 	the 	ALJ 	and 	the 	Board 	analysis 	and 	application of 	NLRA
section 8(d) 	to EERA section 	3540.l(h) 	to 	the 	facts 	of 	this 	case
are 	inaccurate, 	and 	reliance 	on 	Stockton Unified 	School 	District
(1980) 	PERB Decision No. 	143, 	which also 	includes 	the NLRA
section 8(d) 	comparison, 	is flawed.
The 	Board 	relied 	on 	Stockton 	and NLRB 	precedent 	for 	the
proposition 	that 	an 	employer's 	failure 	to provide 	relevant 	and
necessary 	information 	concerning 	two 	employee 	grievances 	is 	a
refusal 	to bargain or violation of EERA section 	3543.5(c). 	But
reliance on Stockton 	is 	inappropriate, 	because 	this 	case 	and
22where	Where 	a serious 	error 	of 	law has 	occurred, 	the 	Board
reviews 	original 	charges. 	(See El 	Dorado Union High School
District 	(1986) 	PERB Decision No. 	537a.)
21

Stockton 	are 	distinguishable 	on 	their 	facts.
In 	Stockton, 	the 	employer 	refused 	to provide health benefit
information during mid-contract, 	reopener negotiations. 	In 	that
factual 	context, 	the 	employer's 	failure 	to provide 	necessary and
relevant 	information 	constituted 	a 	failure 	to meet 	and 	negotiate
in 	good 	faith. 	The 	Stockton employer 	would 	not 	disclose
information relevant 	to the Association's 	fulfillment 	of 	its
duties 	as 	the bargaining 	representative 	of 	the 	employees 	in
negotiations, 	and, 	thus, 	the Stockton Association was hampered
in 	its 	duty 	to 	intelligently negotiate health benefits.
The 	instant case, 	by contrast, 	involves a request 	for
information 	that 	was 	relevant 	and 	necessary 	to 	initiating 	and
processing of 	two 	grievances 	through 	the 	negotiated 	grievance
procedure.
Since 	this 	case 	involves 	contract administration, 	as
distinct 	from 	contract 	negotiations, 	Stockton 	cannot be 	relied
on 	for 	authority 	for 	finding a 	"(c)" 	violation in this 	case.
The 	Board 	extrapolates 	general 	similarities 	between NLRA
section 8(d) 	and EERA section 	3540.l(h) 	in order 	to adopt NLRB
precedent 	to 	support 	the 	proposition 	that 	the 	failure 	to provide
information 	relating 	to two grievances 	is 	a 	refusal 	to
bargain. 	w	3
3 EERA section 3540.1(h) provides, in relevant part:
"Meeting 	and negotiating" 	means 	meeting,
conferring, 	negotiating, 	and discussing by
the 	exclusive 	representative 	and 	the 	public
22

To 	reach 	this 	"unholy alliance," 	the 	Board 	found 	that
section 	3543.5(c) 	of 	the 	EERA 	is 	similar 	to section 8(a)(5) 	of
the 	NLRA, 	which also prohibits 	an employer's 	refusal 	to bargain
4A	in good 	faith. 	The 	Board 	then bootstrapped 	this 	similarity
school 	employer 	in a good 	faith 	effort 	to
reach 	agreement 	on matters 	within 	the 	scope
of 	representation and 	the 	execution, 	if
requested by either party, 	of 	a written
document 	incorporating 	any 	agreements
reached, 	which document 	shall, 	when accepted
by 	the 	exclusive 	representative 	and 	the
public 	school 	employer, 	become binding upon
both parties 	and, 	notwithstanding 	Section
3543.7, 	shall not be subject 	to subdivision 2
of 	Section 	1667 	of 	the Civil 	Code. 	The
agreement 	may be 	for 	a period of 	not 	to
exceed 	three 	years.
NLRA section 8(d) 	states, 	in relevant part:
For 	the purposes 	of 	this 	section, 	to bargain
collectively 	is 	the performance 	of 	the
mutual 	obligation of 	the 	employer 	and 	the
representative of 	the 	employees 	to meet 	at
reasonable 	times 	and 	confer 	in good 	faith
with respect to wages, 	hours, 	and other
terms 	and conditions 	of employment, 	or 	the
negotiation of an agreement, 	or 	any question
arising 	thereunder, 	and 	the 	execution of 	a
written 	contract 	incorporating 	any 	agreement
reached 	if 	requested by either 	party.
(Emphasis 	added.)
44EERA	EERA 	section 3543.5 	states, 	in pertinent part:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith 	with 	an 	exclusive 	representative,
NLRA section 8(a)(5) 	states, 	in relevant part:
23
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

to 	justify 	finding 	"similarities" 	between 	the 	very different
section 3540.1(h) 	of 	the 	EERA and 	section 8(d) 	of 	the NLRA, 	both
of 	which define 	the 	generalized duty of 	the parties 	to meet 	and
negotiate.
But, 	one 	very 	important 	difference between EERA section
3540.l(h) 	and NLRA section 8(d) 	distinguishes 	these 	two
sections. 	The 	duty 	to bargain 	collectively with 	respect 	to 	"any
question 	arising 	thereunder" 	is 	not 	employed 	in EERA section
3540.l(h). 	In NLRB v. Acme Industrial Co. 	(1967) 	385 U.S. 	432,
the 	U.S. 	Supreme 	Court 	found 	the phrase 	"any question arising
thereunder" 	to mean 	that 	"to bargain collectively" 	extended
beyond 	the 	period 	of 	contract 	negotiations 	and 	included
labor-management 	relations 	during 	the 	term of 	the 	contract.
Since 	the 	critical 	phrase 	on which 	the 	court bases 	its holding
is 	not 	found 	in EERA section 3540.l(h), 	I am unwilling to read
this 	into 	EERA section 3540.l(h) 	and 	thus 	into section 3543.5(c).
There 	is 	no doubt 	that by definition 	collective bargaining
as 	a 	process 	relies 	on 	cooperation and 	an open exchange 	on a
55continuous basis. 	But 	I 	do not 	interpret 	that 	covenant 	to
It 	shall 	be 	an unfair 	labor 	practice 	for 	an
employer—
(5) 	to 	refuse 	to bargain collectively with
the 	representatives 	of his 	employees,
subject 	to the provisions of 	section 9(a).
5 The 	majority misreads 	the 	dissent. 	The 	cases 	cited by
24

mandate 	equating NLRA section 8(d) 	to EERA section 3540.l(h).
the 	majority do 	not 	respond 	to my concerns 	and are 	not
controlling. 	Conley 	v. 	Gibson 	is 	a declaratory relief 	action
brought 	by 	"negro" 	employees 	under 	the 	Railway Labor Act 	who
sought 	to 	enforce 	their 	statutory right 	not 	to be 	treated
unfairly 	and 	discriminated 	against by 	the 	union. 	In 	NLRB 	v.
Sands, 	the 	court 	finds 	that 	the employer did not 	refuse 	to
bargain 	and 	again 	relies 	on 	the 	interpretation 	of 	section
8(d). 	As 	noted 	infra, 	EERA does not have 	the 	same 	language as
8(d).
Therefore, 	the 	District's 	unlawful 	refusal 	to provide
information 	in 	this 	case 	was 	not 	a 	violation of 	EERA section
3543.5(c). 	The 	refusal 	to bargain violation and 	its 	traditional
remedy 	simply do not 	fit 	the 	facts 	of 	this 	case. 	To what
purpose 	should 	the 	District 	be 	ordered 	to 	"meet 	and 	negotiate"
with 	the 	Association 	concerning 	the 	duty 	to produce 	information
that 	this 	Board has 	deemed 	necessary 	and 	relevant 	to 	the
Association's 	duties? 	Obviously to no purpose, 	as 	the majority,
although 	finding a 	(c) 	violation, 	fails 	to remedy that
violation. 	Therefore, 	even 	the majority must acknowlege 	that
the 	wrong 	committed 	is 	not 	a 	failure 	to meet 	and negotiate. 	It
is 	a 	failure 	to produce 	records 	which 	results 	in 	interference
with 	association 	and 	employee 	rights, 	an EERA section 	3543.5(a)
and 	(b) 	violation.66
^EERA section 	3543.5 	states, 	in pertinent part:
It 	shall be 	unlawful 	for a public 	school
employer 	to:
(a) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate 	against
employees, 	or otherwise 	to 	interfere with,
restrain, 	or coerce employees because of
25

their 	exercise 	of 	rights 	guaranteed by 	this
chapter.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
Rather, 	I do 	find the 	District 	in the 	instant case
unlawfully 	failed 	to provide 	necessary 	and 	relevant 	information
that 	the Association 	requested. 	Such a 	failure 	is patently a
violation 	of 	the 	Association's 	right 	to 	represent 	the 	members 	of
the bargaining unit, 	i.e., 	a violation of 	EERA section 	3543.5(a)
and (b) .
26

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. 	S-CE-741.
Modesto 	Teachers Association. 	CTA/NEA v. 	Modesto 	City Schools
and High School District, 	in which all 	parties 	had 	the 	right 	to
participate, 	it 	has 	been found 	that 	the Modesto City Schools
and 	High 	School 	District 	violated 	Government 	Code
section 3543.5(a). 	(b) and (c).
As 	a 	result 	of 	this 	conduct, 	we have 	been ordered 	to post
this Notice 	and will 	abide 	by the 	following. 	We will:
1. 	CEASE AND DESIST FROM:
(a) 	Failing and 	refusing 	to 	provide 	the Modesto
Teachers Association, 	CTA/NEA, 	with all 	relevant 	information
and 	documents 	needed 	by 	the Association 	to 	prosecute 	contract
grievances 	on behalf 	of 	certificated 	employees 	of 	the District.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE ACT:
(a) 	Upon reguest 	by the Modesto 	Teachers Association,
CTA/NEA, 	provide 	to 	the Association the 	reguested 	information
regarding art 	classes 	at Downey High School, 	and 	regarding
partial 	paid 	and 	personal 	necessity 	leaves.
(b) 	If. 	within 30 days of 	full compliance by the
District with the terms 	of 	paragraph 2(a) 	above, 	or within
30 days 	of 	this Order, 	whichever 	is 	later, 	the Modesto Teachers
Association, 	CTA/NEA, 	seeks 	to 	reopen the grievances 	filed 	by
Particia Gurney and Leonard Choate, 	or 	seeks 	to 	reopen an
arbitration proceeding 	concerning 	those 	grievances, 	the
District 	will 	refrain 	from 	interposing 	any 	procedural 	objection
such as 	timeliness 	or 	res 	judicata 	to 	the 	reopening 	sought 	by
the Association.
Dated: 	MODESTO 	CITY 	SCHOOLS 	AND HIGH
SCHOOL 	DISTRICT
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS FROM THE DATA OF 	POSTING AND MUST NOT
BE REDUCED 	IN SIZE. 	DEFACED. 	ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
•