Oxnard Educators Association (Gorcey and Tripp) (PERB 0664EA)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JUDITH MAE 	GORCEY,
Charging 	Party,
v.
OXNARD 	EDUCATORS 	ASSOCIATION,
Respondent.
Case No. 	LA-CO-369
Request 	for 	Reconsideration
PERB Decision No. 	664
JAN MARIE 	TRIPP,
Charging 	Party,
v.
OXNARD 	EDUCATORS ASSOCIATION,
Respondent.
PERB Decision No, 	664a
August 26, 	1988
Case No. 	LA-CO-370
Appearances; 	Rosenmund 	& 	Rosenmund by Michael 	A. 	Morrow 	for 	Jan Marie
Tripp and Judith Mae Gorcey; 	Schwartz, 	Steinsapir, 	Dohrmann & Sommers
by Michael 	R. 	Feinberg 	for 	Oxnard 	Educators 	Association.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	The Public 	Employment 	Relations 	Board 	(PERB
or 	Board) 	initially 	ruled on an appeal 	of 	the partial 	dismissal
of Oxnard 	Educators Association 	(1988) 	PERB Decision No. 	664,
holding, 	inter alia, 	that 	the Regional Attorney erred 	in
dismissing 	an 	alleged 	violation 	of 	section 	3544.9 	of 	the
Educational 	Employment 	Relations 	Act 	filed by 	Judith 	Mae 	Gorcey
and Jan Marie 	Tripp 	(Charging 	Parties) 	against 	Oxnard 	Educators
Association 	(OEA) 	and 	remanded 	the 	case 	to 	the 	General 	Counsel
for 	issuance 	of 	a 	complaint.
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OEA has 	asked 	the 	Board 	to 	reconsider 	the 	partial 	dismissal
pursuant 	to 	Regulation 	32410,1' 	based 	on 	"newly 	discovered"
evidence. 	OEA alleges 	that 	at 	a hearing on 	the merits 	in a
related 	charge, 	evidence 	was 	presented 	and 	a proposed 	decision
issued 	that 	should have been 	considered by 	the 	Board.2
The 	Board 	in 	San 	Joaquin 	Delta 	Community 	College 	District
(1983) 	PERB Decision No. 	261b 	set 	forth 	a 	three-part 	test 	to
determine 	whether 	to 	grant 	a new hearing 	on 	the basis 	of 	newly
discovered 	evidence. 	The party 	requesting 	reconsideration 	on
the basis 	of 	newly discovered 	evidence must 	establish 	that 	the
evidence 	(1) 	is newly discovered, 	(2) 	that reasonable diligence
has been 	exercised 	in 	its 	discovery and production, 	and 	(3)
that 	it 	is material 	in the 	sense 	that 	it 	is 	likely to produce 	a
different 	result.
1PERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 31001 et 	seq. 	Regulation
32410 	states 	in pertinent part:
(a) 	. 	. 	. 	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.
2 The 	Board has 	since 	issued 	its 	decision 	affirming 	the
proposed 	decision 	and 	dismissed 	the 	allegation 	that 	OEA 	failed
to 	adequately 	communicate 	with 	or 	receive 	input 	from 	unit
members 	before 	agreeing 	to 	a 	new 	salary 	schedule 	that 	adversely
affected 	the 	Charging 	Parties. 	Oxnard 	Educators 	Association
(1988) 	PERB Decision No. 	681.
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OEA's 	request must 	fail 	in the 	instant 	case because 	it has 	not
shown 	"reasonable 	diligence" 	in 	the production of 	newly
discovered 	evidence.
The 	requirement 	of diligence 	in 	the 	presentation 	of 	newly
discovered 	evidence 	has 	been 	strongly 	emphasized. 	The 	parties
seeking 	reconsideration must 	provide 	not 	only new 	evidence, 	but
also a 	satisfactory explanation 	for 	the 	failure 	to produce 	the
evidence 	at 	an earlier 	time. 	San Joaquin 	Delta Community
College 	District 	(1983) 	PERB Decision No. 	261b, 	citing Blue
Mountain 	Development 	Company v. 	Chester 	Carvill 	(1982) 	132
Cal.App.3d 1005, 	at 	1013.
Here, 	OEA had 	the 	allegedly newly discovered 	evidence 	in
its 	possession 	for 	10 months before presenting 	it 	to the
Board. 	The Administrative 	Law Judge's 	(ALJ) 	proposed 	decision
could have been brought 	to 	the 	Board's 	attention 	at 	or 	near 	the
time OEA received 	it, 	in July, 	1987, 	well 	in advance of the
issuance of PERB's 	decision. 	Indeed, 	Charging Parties 	served
OEA with 	a 	copy 	of 	a 	request 	to augment 	the 	record 	on 	appeal 	in
January, 	1988. 	OEA provides 	absolutely no explanation 	for
waiting 	10 	months 	before 	disclosing 	such 	evidence.
OEA endeavors 	to 	introduce 	evidence 	from 	the 	prior hearing
that 	it 	did not breach 	its 	duty of 	fair 	prepresentation by
failing 	to 	adequately 	communicate 	with 	and 	receive 	input 	from
unit 	members 	during 	the 	negotiations 	process 	leading up 	to
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ratification. 	Here, 	the 	issue 	is whether 	or not OEA acted
arbitrarily, 	discriminatorily or 	in bad 	faith with 	regard 	to
the 	targeting of 	certain 	steps 	on 	the 	salary schedule.
Therefore, 	the 	focus 	in the 	instant 	case 	is 	somewhat different,
i.e., 	OEA's 	motivation 	in negotiating 	the 	new salary 	schedule
rather 	than 	its 	interactions 	with 	unit 	members.
Therefore, 	having 	rejected OEA's 	argument 	in 	support 	of 	its
request 	for 	reconsideration, 	for 	the 	reasons 	set 	forth above,
we 	find 	that 	the 	OEA has 	failed 	to demonstrate 	extraordinary
circumstances warranting reconsideration.3
ORDER
The 	request by Oxnard 	Educators 	Association 	that 	the 	Public
Employment 	Relations 	Board 	grant 	reconsideration 	of 	Oxnard
Educators 	Association 	(1988) 	PERB Decision No. 664 	is 	DENIED.
Member 	Craib 	joined 	in 	this 	Decision.
Chairperson Hesse's 	concurrence begins 	on page 	5,
33our	our 	denial 	of 	OEA's 	request 	for 	reconsideration does 	not
mean 	that 	we 	view 	the 	dismissal 	in 	the 	related 	case 	to be
irrelevant. 	To 	the 	contrary, 	the ALJ may properly apply 	the
doctrine 	of 	collateral 	estoppel 	to prevent 	the parties 	from
relitigating matters 	decided 	in 	Oxnard 	Educators 	Association
(1988) 	PERB Decision No. 	681. 	(See 	Kern County Office of
Education 	(1987) PERB Decision No. 	630, 	at footnote 2 ) .
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Hesse, 	Chairperson, 	concurring: 	I concur with the decision
insofar as 	the request 	for reconsideration is denied. 	However, 	I
respectfully disagree with 	the 	decision by 	the 	Board 	itself 	to
defer the case to an ALJ 	after a complaint 	is 	issued. 	While ALJs
typically 	conduct 	a 	hearing prior 	to 	review by 	the 	Board 	itself,
this 	case 	lends 	itself 	to an alternative procedure. 	Pursuant to
Government Code sections 	3541.3(h) 	and 	(i), 	I would issue an
order to 	show cause 	as 	to why the 	case 	should not be decided
based 	on 	the 	record presented 	in Oxnard 	Educators 	Association
(1988) 	PERB Decision No. 	681. 	Although the central 	issue 	in the
Oxnard decision 	concerns 	the 	duty 	of 	fair 	representation 	in the
contract 	ratification process, 	the Oxnard record is 	replete with
testimony 	and 	references 	to 	the 	bargaining history 	and 	the
Association's 	motives 	and 	conduct 	therein. 	Contrary 	to my
colleagues 	assertion, 	counsel 	for Charging Party 	saw 	little
distinction between the 	bargaining 	and 	ratification 	conduct. 	In
relevant part, 	counsel argued:
Morrow: 	. 	. 	. 	They took away a guaranteed
right in that contract, 	and without any
notice.
So 	I 	think that 	is 	evidence of arbitrary
conduct 	engaged 	in by 	this 	union between
November 	8th and November 	20th. 	And 	for
those reasons, 	and those reasons only, 	what I
wish 	to 	introduce 	any 	evidence 	regarding
45028, 	in particular whether or not the people
who were 	negotiating 	or presenting 	the
contract 	to 	their own membership 	knew anything
about it. 	[Sic] 	(Trans. Vol. 	I, p. 	27.)
Counsel 	for respondent 	later 	countered:
Feinberg: 	The 	evidence that we've been
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presenting 	concerning 	bargaining 	history
throughout 	1985 	all 	goes 	to the union's
obligations 	to be 	a proper 	collective
bargaining 	representative 	and 	to 	fairly
represent. 	The alternative, 	which is
apparently discussed at the October 	3rd, 	1985
rep 	counsel meeting 	for 	filing a 	lawsuit,
while certainly a possibility 	for 	-- 	I 	mean
the OEA has 	the 	standing to bring 	a 	lawsuit 	in
fact, 	but it is not part of its collective
bargaining authority 	to bring a 	lawsuit. 	That
is 	not an obligation at any time of the union,
to bring a lawsuit. 	(Trans. Vol. 	II, p. 	60.)
In the interest of 	judicial economy, 	I would not defer action, 	I
would 	consider 	the 	case 	now.
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