Morgan Hill Unified School District (PERB 0554EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	MORGAN 	HILL
CHAPTER 	#159,
Charging 	Party,
v.
MORGAN 	HILL 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
) 	Case No. 	SF-CE-844
Request 	for 	Reconsideration
PERB Decision N O . 	554
PERB Decision 	No. 	554a
March 20, 	1986
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Appearances: 	William C. 	Heath 	for 	California 	School 	Employees
Association 	and 	its 	Morgan 	Hill 	Chapter 	#159; 	Littler,
Mendelson, 	Fastiff 	& Tichy by Patricia P. 	White 	for 	Morgan Hill
Unified 	School 	District.
Before Hesse, 	Chairperson; 	Morgenstern and Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	The Public 	Employment Relations 	Board
(PERB or 	Board), 	having duly considered Respondent 	Morgan Hill
Unified 	School 	District's 	(District) 	request 	for 	reconsideration
of PERB Decision 	No. 	554, 	hereby denies 	that 	request 	for 	the
reasons 	that 	follow.
DISCUSSION
In 	Morgan 	Hill 	Unified 	School 	District 	(1985) 	PERB 	Decision
No. 	554, 	the Board affirmed an 	administrative 	law 	judge's 	(ALJ)
proposed 	decision 	finding 	that 	the 	District 	violated 	section
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
1
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______________ )

Act 	(EERA)1 by making 	a 	unilateral 	change 	in 	policy 	concerning
a 	matter 	within 	the 	scope 	of 	representation 	when 	it 	allowed 	a
former 	dispatcher 	to 	include 	her 	dispatcher 	hours 	in 	calculating
her 	seniority 	for 	the 	purpose 	of 	bidding 	on 	bus 	routes. 	More
specifically, 	the 	Board 	found 	that 	the 	Charging Party proved 	by
a 	preponderance 	of 	the 	evidence 	that 	the 	renegotiated 	version 	of
the 	parties1 1980-83 	agreement was 	silent 	on 	the method 	of
seniority 	calculation 	for 	initial 	bus 	route 	bidding 	and 	that 	the
relevant 	provision 	of 	the 	original 	1980-83 	agreement 	continued
to 	reflect 	the 	existing policy.
Pursuant 	to PERB 	Regulation 	32410,2 the 	District 	requests
reconsideration 	of 	the Board's 	decision 	on 	two 	grounds, 	(1)
prejudicial 	errors 	of 	fact, 	and 	(2) 	new 	law unavailable 	at 	the
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein 	are
to 	the Government 	Code.
2PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 	31001 	et 	seq. 	Regulation 	32410 	states,
in pertinent part:
(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. 	. 	. 	. 	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.
N	2

time 	Respondent 	filed 	filed 	its 	exceptions 	to 	the 	ALJ's 	proposed
decision. 	The 	District 	also 	requests 	reconsideration 	by 	the
full 	Board.3
Reconsideration 	by 	the 	Full 	Board
The 	District 	correctly 	states 	that 	a 	request 	for
reconsideration 	may be 	considered 	by 	an 	expanded 	panel 	or 	by 	the
full 	Board. 	While 	it 	is 	Board policy 	to 	assign 	such 	requests 	to
the 	original 	panel 	that 	considered 	the 	underlying 	decision,
other members 	of 	the 	Board may 	join 	the 	panel 	if 	they 	so
desire. 	This 	is 	consistent with 	EERA section 	3541(c).4
Nevertheless, 	there 	is no 	right 	to have a 	request 	for
reconsideration 	considered 	other 	than 	by 	the 	original 	panel.
California 	State university 	(1984) 	PERB 	Decision No. 	351a-H.5
3Additionally, 	the 	District 	requested 	that 	the 	Board's
order 	in 	the 	underlying 	decision 	be 	stayed 	pending 	this
reconsideration. 	The 	Charging 	Party 	opposed 	this 	request.
However, 	such a 	request 	is not 	necessary for, 	pursuant 	to
Regulation 	32410 	(as amended November 9, 	1985), 	the Board's
orders 	in 	unfair 	practice 	cases 	are 	automatically 	stayed 	upon
the 	filing 	of 	a 	request 	for 	reconsideration.
4Section 3541(c) 	states:
The 	board 	may 	delegate 	its 	powers 	to any
group of 	three or more 	board members.
Nothing 	shall 	preclude 	any 	board 	member 	from
participating 	in 	any 	case 	pending 	before 	the
board.
5The 	District 	apparently misreads 	California 	state
University, 	supra, 	to 	stand 	for 	the proposition 	that
reconsideration 	is 	restricted 	to 	the 	original 	panel.
W	
3

Requests 	for 	reconsideration 	are 	brought 	to 	the 	attention 	of 	all
Board 	members 	and 	those 	not 	on 	the 	assigned 	panel 	may 	exercise
their 	right 	to 	join 	in 	the 	consideration 	of 	such 	requests.
The 	Grounds 	for 	Reconsideration
The 	District 	puts 	forth 	two main 	arguments 	in 	support 	of 	its
request 	for 	reconsideration: 	(1) 	The 	agreement 	between 	former
California 	School 	Employees 	Association 	(CSEA) 	chapter 	president
Jay Yinger 	and 	the 	District 	(on 	August 	27, 	1983) 	to allow Vicki
Rivera 	to 	bid 	along with 	the 	other 	bus 	drivers 	on 	August 	31 	by
necessary 	implication 	included 	an 	agreement 	as 	to 	the 	method 	of
calculating Rivera's 	seniority; 	and 	(2) 	the 	language 	of 	the 	1982
renegotiated 	agreement 	reflected 	the 	existing 	policy 	on
seniority 	for 	the 	purpose 	of 	annual 	route 	bidding.
The 	District 	claims 	that 	it 	has 	repeatedly argued 	that 	it
relied 	upon 	an 	agreement 	between 	itself 	and 	Yinger 	as 	a 	defense
to making a 	unilateral 	change 	in 	the method 	of 	calculating
seniority. 	However, 	as 	the Board 	noted 	in 	the 	underlying
decision, 	the 	District 	in 	fact 	has 	never 	before made this
argument.6 The 	District, 	therefore, 	now asserts 	for 	the 	firstC
6In support 	of 	its 	contention, 	the 	District 	cites 	its 	8th,
9th 	and 	10th 	affirmative 	defenses, 	as 	stated 	in 	its 	answer 	to
the 	complaint, 	as 	well 	as 	various 	passages 	from 	its 	earlier
pleadings. 	The 	8th 	affirmative 	defense, 	which mentions 	"the
parties' 	agreement," 	clearly refers 	to the parties' 	collective
bargaining agreement. 	The 	9th 	and 	10th 	affirmative 	defenses, 	as
well 	as 	the 	other 	cited passages, 	specifically 	refer 	only 	to 	the
August 	27 	agreement 	to allow Rivera 	to 	bid 	at 	the 	same 	time 	as
the 	other 	drivers. 	One passage merely describes 	the August 	25
meeting where, 	as 	the District 	agreed previously, 	Yinger 	acted
without 	actual 	or 	apparent 	authority.
4

time 	that 	the 	finding 	that 	Yinger 	acted 	on 	behalf 	of 	CSEA 	at 	the
August 	27 	meeting 	compels 	a 	related 	finding 	that 	he 	also
impliedly 	agreed 	at 	that 	time 	to 	the method 	used 	to 	calculate
Rivera's 	seniority. 	We 	disagree 	that 	such 	a 	finding 	is
compelled, 	In 	fact, 	the weight 	of 	the 	evidence strongly
militates 	against 	such 	a 	finding.
Both 	Yinger 	and 	Director 	of 	Personnel 	Lee 	Cunningham
testified 	that, 	because 	Rivera 	could 	not 	leave 	her 	dispatcher
position 	until 	a 	replacement was 	found, 	the 	only subject
discussed 	at 	the August 	27 	meeting was 	whether 	to 	have 	Rivera
bid 	on 	August 	31 	and 	have 	her 	route 	filled 	by a 	temporary 	driver
or 	to 	have her 	bid 	at 	a 	later 	date. 	Because 	the 	first 	option
was 	both 	less 	disruptive 	and 	consistent 	with 	past practice, 	it
was 	decided 	to 	let 	Rivera 	bid 	on 	August 	31 	along with 	the 	other
drivers. 	There was 	no 	evidence 	of 	any 	discussion 	of 	the method
of 	calculating Rivera's 	seniority. 	While 	it 	is 	true 	that 	Rivera
could 	not 	have 	bid without 	a 	determined 	level 	of 	seniority, 	the
evidence 	reflects 	that 	both 	parties 	viewed 	the 	calculation 	of
Rivera's 	seniority 	and 	the 	timing 	of 	her 	bid 	to 	be 	separate
issues.
The 	evidence 	clearly 	shows 	that 	Rivera's 	seniority was
unilaterally 	determined 	prior 	to August 	27, 	leaving 	only 	the
mechanics 	of 	her 	bidding 	to 	be 	determined. 	Yinger 	testified
that 	the August 	25 	meeting was 	of 	a 	factfinding 	character 	and
that 	it 	produced 	no 	agreement 	as 	to 	Rivera's 	seniority.
Instead, Cunningham 	left 	with 	a 	series 	of 	questions 	posed 	by
5

Rivera, 	which 	she 	explored 	and 	resolved 	prior 	to 	sending 	the
memo 	of 	the 	same 	date 	to Rivera 	informing 	her 	that 	her
dispatcher 	hours 	would 	be 	included. 	Cunningham's 	testimony
confirms 	that 	it was 	she, 	in consultation with 	the
superintendent, 	who made 	the 	decision 	to 	include 	the 	dispatcher
hours. 	It was 	with 	the 	knowledge 	that 	this 	firm decision 	had
already 	been 	made 	by 	the 	District 	that 	the 	parties 	met 	on
August 	27.7 Merely 	by 	agreeing 	to 	let 	Rivera 	bid 	on 	August 	31
and 	have 	her 	route 	filled 	by a 	temporary 	driver, 	CSEA did 	not
expressly 	or 	implied 	acquiesce 	to 	or 	ratify 	the 	District's
earlier 	decision 	as 	to 	the 	method 	of 	calculating 	her 	seniority.
In its 	prior 	pleadings, 	the District made a point 	of
distinguishing 	between Yinger's 	role 	at 	the August 	25 	and
August 	27 	meetings. 	The 	District 	now 	cites 	Ravenswood City
School 	District 	(1984) 	PERB Decision 	No. 	4698 as 	support 	for
its 	new 	assertion 	that 	Yinger 	should 	not 	have 	been 	allowed 	to
remove 	his 	union 	president 	"hat" 	at 	the August 	25 	meeting. 	In
Ravenswood, 	the 	Board 	found 	that 	threatening 	remarks 	from 	an
administrator 	could 	be 	imputed 	to 	the 	district 	even 	though 	the
administrator 	had 	earlier 	assisted 	the 	threatened 	employee 	(in
7An 	employee 	organization 	does 	not 	waive 	its 	right 	to
bargain 	by 	failing 	to 	request 	negotiations 	after 	a 	firm 	decision
has 	already been made. 	Arcohe 	Union 	School 	District 	(1983) 	PERB
Decision N O . 	360, 	Los Angeles Community College District 	(1982)
PERB Decision No. 	252.
8Ravenswood 	did 	issue 	after 	the 	district 	filed 	its
exceptions 	to 	the proposed decision 	and, 	thus, 	we will 	consider
it 	as 	new 	law and 	thus 	a 	proper 	ground 	for 	reconsideration.
66

an 	unofficial 	capacity) 	in 	preparing 	the 	grievance 	that
precipitated 	the 	remarks. 	This 	result 	turned on 	the principle
that 	the 	administrator's 	prior 	role 	in 	assisting 	the 	employee 	as
a 	friend 	did 	not 	preclude 	a 	finding 	that 	she 	later 	acted within
her 	formal 	role 	as 	a 	district 	official. 	The 	evidence 	revealed
that 	the 	threatening 	remarks 	were 	made 	at 	the 	request 	of 	the
administrator's 	superiors; 	thus, 	there was 	no question 	that 	at
that 	time 	the 	administrator 	was 	acting as 	the 	district's 	agent.
The 	Board 	did 	not 	hold 	that 	a 	supervisor 	could 	never 	remove 	his
or 	her 	supervisory 	"hat."
Similarly, 	we 	find no 	reason 	to 	hold 	that a 	union 	president
can 	never 	remove his 	or her 	official 	"hat." 	Normally, 	a 	union
president 	would 	have 	at 	least 	the 	apparent 	authority to act 	on
behalf of 	the union. 	Nevertheless, 	in 	the 	instant case, 	where
it 	was 	understood 	by all 	participants 	that 	Yinger 	was 	not 	acting
in 	an 	official 	capacity at 	the August 	25 	meeting, 	it would be
illogical 	and 	inconsistent 	with 	accepted 	principles 	of 	agency 	to
find 	his 	actions 	binding 	on 	CSEA. 	We 	note 	that 	the 	District 	has
never 	claimed 	that 	Yinger 	acted 	in 	his 	official 	capacity at 	the
August 	25 	meeting, 	nor 	demonstrated 	that 	it 	relied 	on 	his
statements 	at 	the 	meeting 	in 	the 	belief 	that 	they 	reflected 	the
official 	CSEA 	position 	on 	the 	method 	of 	calculating 	Rivera's
seniority. 	Further, 	testimony 	revealed 	that 	at 	the 	beginning 	of
the August 	27 	meeting, 	the District 	representatives 	sought
clarification 	from Yinger 	that 	he was 	then 	acting 	in 	his
official 	capacity.
7
7

The 	District 	next 	asserts 	that 	the 	Board 	erred 	in 	finding
that 	the 	term 	"initial 	assignments" 	refers 	to 	the 	route 	bidding
prior 	to 	each 	school 	year. 	Instead, 	the 	District 	maintains 	that
"initial 	assignment," 	as 	used 	in 	the 	heading 	of Article 	IV,
section C(5) 	of the parties' 	agreement, 	refers only to new
hires. 	From this, 	the District 	apparently argues 	that, 	since
there 	is 	no 	express 	provision 	concerning 	route bidding
seniority, 	it must be governed by sections C(6) 	and 	(7), 	which
provide 	that 	increases 	and 	decreases 	in 	hours 	be 	assigned 	by
seniority 	calculated 	according 	to 	Education 	Code 	section 	45308.
The 	District 	has 	not 	previously 	argued 	that 	"initial
assignment" 	refers 	to new 	hires. 	In 	fact, 	in 	the 	District's
Memorandum 	of Points 	and 	Authorities 	in 	support 	of 	Exceptions,
there 	are 	two 	references 	to 	"initial 	assignments" 	in 	the 	context
of 	the 	annual 	route 	bidding. 	The 	provision 	entitled 	"Initial
Assignment" 	in 	the 	original 	1980-83 	agreement 	clearly pertained
to 	the 	annual 	route 	bidding. 	The 	corresponding provision 	of 	the
renegotiated 	agreement 	was 	also 	entitled 	"initial 	Assignment."
In 	the 	underlying 	decision, 	we 	found 	no 	significance 	in 	the new
provision 	on 	"initial 	assignment" 	because 	it 	contained 	no
mention 	of 	seniority 	and 	neither 	party 	argued 	in 	favor 	of 	its
literal 	interpretation.
If we 	were 	to 	interpret 	the 	new provision 	on 	"initial
assignments" 	to apply only to new hires, 	as 	the 	District 	now
requests, 	this 	would 	simply 	lend 	further 	support 	to 	our
conclusion 	that 	the 	new agreement 	was 	silent 	on 	seniority 	for
Co	
8

annual 	route 	bidding. 	TO 	the 	extent 	that 	the 	District 	argues
that 	the 	absence 	of 	any provision 	requires 	that 	sections 	C(6)
and 	(7) 	should be 	applied, 	this 	is 	an 	improper 	ground 	for
reconsideration. 	In 	the 	underlying 	decision, 	we 	thoroughly
considered 	and 	rejected 	the 	applicability 	of 	these 	sections 	to
the annual route bidding process.9 The District's final argument in favor of reconsider
rests 	upon 	the 	assertion 	that 	general 	principles 	of 	contract
construction 	require 	a 	finding 	that 	the 	1982 	renegotiated
agreement 	superseded 	the 	original 	1980-83 	contract. 	To 	the
extent 	that 	the 	1982 	agreement 	covered 	matters 	also 	covered 	by
the original agreement, 	we of course concur. 	However, 	we found
the 	1982 	renegotiated 	agreement 	to 	be 	silent 	on 	the 	subject 	of
annual 	route 	bidding. 	Established 	policy may be 	embodied 	in 	the
terms 	of 	a 	collective 	agreement, 	but where 	such 	an 	agreement 	is
silent 	or 	ambiguous 	as 	to a policy, 	it may be ascertained 	by
examining 	past 	practice 	or 	bargaining 	history. 	Rio Hondo
Community College District 	(1982) 	PERB Decision No. 	279; 	Pajaro
Valley Unified School District 	(1978) 	PERB Decision N O . 	51.
9 The 	Board 	has 	repeatedly 	held 	that 	arguments 	which 	were
previously 	asserted 	and 	rejected 	are 	not 	proper 	grounds 	for
reconsideration. 	See, 	e.g., 	Pittsburg 	Unified 	School 	District
(1984) 	PERB Decision No. 	318a; 	Rio Hondo Community College
District 	(1983) 	PERB Decision No. 	279a.
99

ORDER
The 	request 	for 	reconsideration 	of PERB 	Decision 	No. 	554
(Case N O . 	SF-CE-844) 	is hereby DENIED.
Member 	Burt 	joined 	in 	this 	Decision.
HESSE, 	Chairperson, 	dissenting: 	I 	again dissent 	from the
majority 	opinion.
10