South Bay Union School District (PERB 0791EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SOUTHWEST TEACHERS ASSOCIATION,
CTA/NEA
Charging 	Party,
v.
SOUTH 	BAY UNION 	SCHOOL 	DISTRICT
Respondent.
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) 	Case No. 	LA-CE-2750
Request 	for Reconsideration
PERB Decision No. 	791
PERB Decision No. 	791a
April 	19, 	1990
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Appearances: 	Reich, 	Adell & Crost by Marianne Reinhold,
Attorney, 	for Southwest Teachers Association, 	CTA/NEA; 	Brown and
Conradi by Clifford D. 	Weiler, 	Attorney, 	for South Bay Union
School District.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on a request for reconsideration
by the 	South Bay Union School 	District 	(District) 	of 	the 	lead
opinion 	and 	concurrence 	in 	South 	Bay Union 	School 	District 	(1990)
PERB Decision No. 	791. 	The District alleges 	five prejudicial
errors of 	fact, 	six errors 	of 	law, 	and requests 	reconsideration
of 	the remedy. 	It 	further requests 	that all 	five Board members
participate 	in the 	reconsideration 	and that 	the 	Board 	reopen 	the
record to 	admit 	the declaration of 	a District assistant
superintendent.
DISCUSSION
In PERB Decision No. 	791, 	a majority of the panel held that
restrictions 	on an exclusive representative's 	right 	to 	file 	and
(
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process 	grievances 	in its 	own name was 	a nonmandatory 	subject 	of
bargaining.1 The majority thus 	concluded that, 	by 	insisting 	to
impasse 	on a 	restriction of 	the 	Southwest 	Teachers 	Association's
right to 	file grievances 	in its 	own name, 	the District violated
the Educational Employment Relations Act 	(EERA or Act), 	section
3541.5, subdivision (c).2
The 	Board has 	promulgated 	a 	regulation which 	sets 	out 	the
parameters 	for requests 	for reconsideration. 	PERB 	Regulation
32410, 	subdivision (a) provides, 	in pertinent part, that:
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
while 	a 	majority of 	the panel 	concluded that 	restrictions
on an 	exclusive 	representative's 	right 	to 	file 	grievances 	in 	its
own name 	is 	a nonmandatory 	subject of bargaining, 	the two members
did 	so using differing 	legal 	analyses. 	In the 	lead opinion,
Member Craib utilized a 	modified version of 	the 	test 	set 	out 	in
Anaheim Union High School District 	(1981) 	PERB Decision No. 	177,
at pages 	4-5. 	(See South Bay lead opinion at pp. 	13-14.) 	In the
concurrence, 	Member Camilli 	found that, 	pursuant to 	section
3543.1, 	subdivision 	(a), 	an exclusive representative has a
nonwaivable 	statutory right 	to 	file 	and process 	grievances 	in 	its
own name. 	(See concurrence at pp. 	24-25.)
N
2 EERA is 	codified at Government Code 	section 3 540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5, 	subdivision 	(c)
provides:
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.
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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.
With this 	standard 	in mind, 	we will discuss 	the District's
arguments 	in 	support 	of 	its 	request 	for reconsideration.
The 	District 	first 	asserts 	that 	the 	lead opinion contains 	a
prejudicial 	error of 	fact on page 	4, 	where the opinion 	states
that 	the 	District 	refused to 	change 	its 	position on Article
13.415, 	the 	contract provision which 	limits 	the Association's
right to grieve.3 The District contends 	that 	it did, 	indeed,
change 	its 	original position on the 	language of 	section 	13.415.
The 	District 	offered 	to 	modify 	the previous 	contract 	language 	to
include 	a 	clause 	that would have 	required 	the Association's
consent 	before 	a matter 	could be 	taken to 	advisory 	arbitration.
However, 	the proposed modification did not 	alter the 	limitation
on the Association's 	right to 	file 	and process 	a grievance 	in 	its
own name. 	The 	lead opinion's 	bad 	faith bargaining analysis 	did
not 	turn 	on a 	finding that 	the 	District 	took an 	inflexible
position in bargaining but, 	rather, 	on the District's 	insistence
on the 	inclusion of 	a nonmandatory 	subject 	in the contract. 	This
argument, 	therefore, 	is rejected.
The District next argues 	that 	it did not 	insist to 	impasse;
rather, 	it 	contends 	the Association insisted to 	impasse because
3The 	lead 	opinion erroneously 	refers 	to 	section 	13.425 	on
page 4. 	The appropriate contract section, 	13.415, 	was
appropriately cited on page 	3. 	This 	citation error 	is 	not
pertinent 	to 	the 	District's 	argument.
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the Association 	sought 	to 	change 	an 	existing provision 	in 	the
contract. 	The District argues 	that the Association had
compromised on this 	issue 	in the past and 	could have done 	so
during negotiations. 	Furthermore, 	the District contends 	that the
Association requested the 	impasse determination. 	This 	argument,
too, 	must fail. 	First of all, 	this is not a factual issue. 	The
question 	is 	not who 	actually 	requested 	an 	impasse 	determination,
nor 	is 	it a question of whether the 	issue was 	addressed 	in the
parties' 	previous contract. 	At the point of impasse, 	the parties
must 	relinquish 	all 	nonmandatory 	subjects 	of bargaining 	and 	a
failure 	to do 	so gives 	rise to 	a bad 	faith bargaining 	charge.
Insisting 	to 	impasse 	that 	a 	nonmandatory 	subject 	be 	included 	in
the 	contract 	is 	a per se violation of 	the duty to bargain 	in good
faith. 	(Lake Elsinore School District 	(1986) 	PERB Decision No.
603.) 	Once 	the Association communicated 	its 	refusal 	to 	include
the 	nonmandatory 	subject 	and 	the parties 	entered 	impasse
procedures, 	the District was 	obligated to relinquish this 	item.
(See NLRB v. 	Wooster Division of Borg-Warner 	(1958) 	356 	U.S. 	342
[42 	LRRM 2034, 	2037 	(an employer's 	good 	faith 	in negotiating on
mandatory 	subjects 	"does 	not 	license 	[it] 	to refuse to 	enter 	into
agreements 	on the 	ground 	that 	they do 	not 	include 	some proposal
which is not a mandatory subject of bargaining"); 	see also,
Morris, 	The Developing Labor Law, 	p. 	847 	("Either party may
bargain about a permissive topic 	as 	if 	it were a mandatory
subject without 	losing the right, 	at any time before agreement 	is
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reached, 	to 	take a 	firm position that the matter 	shall 	not be
included 	in 	a 	contract 	between the parties.").)
The 	District's 	third 	argument 	alleges 	that 	the 	lead 	opinion
failed to 	consider that 	the parties' 	bargaining history reflected
that 	they had 	always 	considered 	the 	issue 	of 	the Association's
right to grieve 	in its 	own name to be part of 	grievance
procedures 	and, 	hence, 	a mandatory subject of bargaining.
Whether 	the parties' 	past bargaining history reflects 	that 	they
considered the matter to be 	a part 	of 	grievance procedures 	is
irrelevant. 	Therefore, 	omission of the parties' 	prior collective
bargaining history was 	not prejudicial. 	Whether a 	subject 	is
within the 	scope 	of 	representation 	is 	a 	legal 	determination that
must be made by the Board. 	Errors 	of 	law are not a proper ground
for reconsideration pursuant to Regulation 32410, 	subdivision
(a).
In its 	fourth argument, 	the District contends 	that 	there was
no 	factual 	support 	for the 	conclusion 	in the 	lead opinion and the
concurrence 	that 	a 	limitation on the Association's 	right 	to
grieve 	inhibits 	the Association's 	duty to represent. 	This 	is 	not
a 	factual 	finding but 	a 	legal 	conclusion 	interpreting 	section
3543.1, 	subdivision (a) 	and, 	hence, 	not subject to Regulation
32410, subdivision (a).
The 	District's 	final 	factual 	argument alleges 	that 	the 	Board
failed to 	find 	that 	the Association has 	a 	right 	to 	represent 	its
members within existing contractual mechanisms. 	This 	argument 	is
inapposite. 	No 	factual 	finding was 	necessary on this 	issue 	in
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the 	lead opinion. 	Whether the Association can represent 	its
members 	who 	file 	grievances 	does 	not 	address 	the 	issue 	of whether
the Association's 	right to grieve 	in its 	own name 	is 	a mandatory
subject 	of 	bargaining. 	The 	argument more 	appropriately addresses
the analysis 	in the concurrence; 	however, 	no factual 	finding on
this 	issue was 	necessary to reach 	the 	result 	in the 	concurrence.
The 	focus 	of 	the concurrence 	is 	on collective 	action. 	Whether
the Association can grieve on behalf 	of 	individuals 	does 	not
address 	the Association's 	right 	to 	take 	collective 	action 	in 	its
own name.
The 	District 	also argues 	that 	the 	remedy 	improperly 	required
it 	to 	accept 	the Association's proposal 	on 	"Association Rights."
It 	contends 	that 	the 	"proper" 	remedy 	for a bargaining violation
is 	for a bargaining order. 	If the 	existing order is 	to remain,
the 	District 	seeks 	an additional 	order to 	expressly 	require 	the
parties 	to bargain over procedures 	for Association grievances.
It 	contends 	that 	issues 	have arisen over the 	statute of
limitations 	on Association grievances, 	the 	level at which an
Association grievance 	should be 	filed, 	and the 	factual
underpinnings 	of 	the grievance. 	To bolster its 	argument 	that the
existing order is 	causing confusion, 	the District 	submits 	the
declaration of 	an assistant 	superintendent 	and moves 	to 	reopen
the 	record 	to admit 	this 	declaration.
First, 	the remedy adopted 	is 	virtually 	identical 	to that
proposed by the administrative law judge 	(ALJ); 	therefore, 	the
District was 	on notice of 	the possibility 	of 	this 	type 	of 	remedy
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when it 	filed 	its 	exceptions. 	Secondly, 	the alleged problems 	are
more 	appropriately addressed 	in compliance proceedings. 	The
procedures 	for processing Association grievances, 	like the
procedures 	for processing other grievances, 	remain a mandatory
subject 	of 	bargaining. 	The Association's 	grievances 	should be
processed 	in the 	same 	manner 	currently 	required by 	the 	existing
contract. 	Nothing in the Board's 	order suggests 	otherwise. 	If
the Association 	fails 	to 	adequately 	comply with 	appropriate
procedures, 	the District 	is 	entitled to take the 	same measures 	it
would take with any other grievance. 	We, 	therefore, 	decline to
modify 	the 	order 	and 	to 	reopen the 	record 	to 	admit 	the
declaration of 	a 	District 	assistant 	superintendent.4
The 	District 	also alleges 	six 	errors 	of 	law in the 	lead 	and
concurring opinions. 	These are purely legal 	issues 	and, 	hence,
not 	proper 	grounds 	for a 	request 	for reconsideration under 	PERB
Regulation 32410, 	subdivision (a).
Finally, 	the District 	incorporates 	all of the arguments 	it
raised 	in 	its 	initial 	exceptions 	to 	the ALJ's 	proposed decision.
It does 	so 	for the benefit 	of 	the 	Board members who did not
participate 	in the 	original 	decision. 	The District 	recognizes
that 	it 	does 	not have a 	right 	to have 	full 	Board participation
(California 	State 	University 	(SUPA) 	(1984) 	PERB 	Decision No.
351a-H, 	at p. 	3 ) ; however, 	it argues that, because the decision
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4The 	declaration 	is 	neither relevant 	nor necessary to 	the
resolution of the case. 	Furthermore, 	this 	information was
available at the time that the exceptions were 	filed. 	It 	is,
therefore, 	not 	newly discovered nor 	evidence which was 	not
previously available. 	(PERB Reg. 	32410, 	subd. 	(a).)
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contained three divergent 	analyses, 	the 	full Board 	should
participate 	in order 	to 	prevent 	conflicting results 	when the
issue 	is 	addressed 	in 	similar 	cases 	currently pending before 	the
Board. 	Section 3541, 	subdivision 	(c) 	permits 	any Board member to
participate 	in any case pending before 	the 	Board. 	As 	in all
cases, 	all Board members had an opportunity to participate 	in
this 	case. 	The request 	for full Board consideration is,
therefore, denied.
ORDER
The 	South Bay 	Union School 	District's 	request 	for
reconsideration of PERB Decision No. 	791, 	its request for full
Board participation, 	and 	its 	request 	to 	reopen the 	record are
hereby 	DENIED.
Member Camilli 	joined in this 	Decision.
Chairperson Hesse's 	dissent begins 	on page 	9.
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Hesse, 	Chairperson, 	dissenting: 	Contrary to the majority's
conclusion that 	the 	South Bay Union 	School 	District's 	(District)
argument 	on reconsideration that 	the 	Southwest 	Teachers
Association 	(Association) 	insisted to 	impasse 	is 	not a 	factual
issue, 	I 	find that the 	issue of whether the District or
Association 	insisted to 	impasse to be pure 	factual 	issue. 	The
majority argues 	that the District, 	by 	failing to 	relinquish 	the
nonmandatory 	subject 	once 	the Association 	communicated 	its
refusal 	to 	include 	the 	nonmandatory 	subject 	in the 	collective
bargaining agreement, 	engaged 	in bad 	faith bargaining. 	To reach
this 	conclusion, 	one must examine the 	facts 	of this 	case.
As 	stated 	in my dissent 	in South 	Bay Union 	School 	District
(1990) 	PERB Decision No. 	791, 	at pages 29-36, 	I find that there
was 	no 	evidence presented 	that 	the 	District 	insisted 	to 	impasse
on the Association's 	agreement 	to 	a 	counterproposal 	on a
nonmandatory 	subject. 	Rather, 	the record 	shows 	that the
Association, 	not the District, 	insisted to 	impasse on the
inclusion of 	the 	initial 	grievance rights proposal.
Pursuant to PERB Regulation 32410(a),1 I would grant the
District's 	request 	for reconsideration on the 	basis 	that 	the
majority 	erroneously 	found 	that 	the 	District 	insisted 	to 	impasse.
11See page 	2 	of majority opinion for text
99