Woodland Joint Unified School District (PERB 0808EA)

STATE 	OP 	CALIFORNIA
DECISION OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
WOODLAND EDUCATION ASSOCIATION,
CTA/NEA,
Charging Party,
v.
WOODLAND 	JOINT UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1211
Request 	for 	Reconsideration
PERB Decision No. 	808
PERB 	Decision No. 	808a
August 	17, 	1990
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Appearances: 	Kronick, 	Moskovitz, 	Tiedemann & Girard by Jan K.
Damesyn, 	Attorney, 	for Woodland Joint Unified School District.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	The Woodland Joint Unified School District
(District) 	requests 	reconsideration of Woodland Joint 	Unified
School District 	(1990) 	PERB Decision No. 	808. 	In that decision,
the Public 	Employment Relations 	Board 	(PERB or Board) 	affirmed
the Administrative Law Judge's 	(ALJ) 	conclusion that 	the 	District
violated 	section 	3543.5(a)1 of 	the Educational Employment
1EERA 	is 	codified at 	California 	Government Code 	section
3540, 	et seq. 	Section 3543.5(a) 	states:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
_____ )

Relations Act 	(EERA) 	when 	it discriminated and retaliated 	against
Carol Peart 	(Peart), 	a District teacher, 	for the exercise of
protected activities. 	Specifically, 	the ALJ 	found the District
violated 	EERA by 	requiring 	Peart 	to 	obtain a doctor's 	excuse 	for
four 	consecutive days 	of 	absence, 	when 	such verification had not
been required of other bargaining unit 	employees, 	and was 	imposed
to 	harass 	and 	intimidate her 	for having 	filed 	and 	appealed 	a
grievance.
DISCUSSION
PERB Regulation 32410(a)2 provides, 	in relevant part:
Any party 	to 	a decision of 	the 	Board 	itself
may, 	because of extraordinary circumstances,
file 	a request 	to reconsider 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.
In 	its request 	for reconsideration, 	the District asserted
that 	the 	Board's 	decision 	contained 	approximately 	13 	prejudicial
errors 	of 	fact. 	Each alleged error 	is 	addressed below.
1• 	No Evidence 	Indicating That the District's 	Letter
Formalizing 	Its 	Request 	That 	Peart 	Provide Verification of
Her Absence Was 	Placed 	in Her Personnel 	File.
The 	District 	claims 	that 	the 	Board 	erroneously 	concluded
Peart 	suffered harm when 	two 	letters were placed 	in her personnel
file, 	one 	formalizing the District's 	request that 	she provide
2PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq.
22

verification of her absences.3 The 	District notes 	that 	the ALJ
made 	no 	finding of 	animus 	toward Peart 	resulting 	from 	the 	letters
and 	contends 	there was 	no 	evidence 	indicating 	the 	letter dated
October 	9, 	1987, 	was actually placed in her file. 	Finally, 	the
District 	contends 	that even if the October 	9, 	1987 	letter was
placed 	in Peart's personnel 	file, 	under Education Code 	section
44031 	she 	could have asked 	for 	its 	removal 	and/or 	submitted 	a
rebuttal 	statement. 	Since 	she did neither, 	the District argues
Peart did not 	find the 	letter harmful 	or offensive.
The 	fact the ALJ made no 	finding of 	animus 	as 	a result of
the 	letters 	is 	of no import. 	The Board is 	free to draw its 	own
conclusions 	from the 	record apart 	from those made by 	the ALJ, 	and
did 	so in this 	case. 	(PERB Regulation 32320(a)(1);4 cf 	Santa
3There are, 	in fact, 	three letters 	involved in this 	case.
One dated January 22, 	1988 	is 	from Peart to Assistant
Superintendent Dr. 	Ray Crawford 	(Crawford) 	requesting release
time 	to 	attend 	an arbitration hearing pertaining 	to 	a 	grievance
she had 	filed against the 	District. 	The 	second 	letter 	is 	dated
November 23, 	1987 	and is 	a memo 	from Crawford to Peart
documenting 	that 	she 	failed 	to 	comply with 	requests 	by her
principal Mike Parker 	(Parker) 	to 	submit her objectives 	by
October 5, 	1987 or meet with him by October 	15, 	1987. 	The memo
then directs her to meet with Parker on November 25, 	1987. 	The
third 	letter dated October 	9, 	1987 	is 	from Crawford to 	Peart
requesting 	that 	she provide 	a 	verification 	from her doctor 	that
she was 	unable 	to work from October 	6 	through the date 	of her
return. 	There 	is 	no dispute the 	letters dated January 	22, 	1988
and November 23, 	1987 were 	in Peart's personnel 	file. 	The
District, 	however, 	disputes 	the Board majority's 	finding that the
October 	9, 	1987 	letter was placed 	in her personnel 	file.
4PERB Regulation 	32320 	states 	in pertinent part:
(a) 	The Board itself may:
(1) 	Issue a decision based upon the record
of hearing, 	or
-
33

Clara Unified School District 	(1979) 	PERB Decision No. 	104.)
Further, 	although 	there was 	no direct testimony by any of 	the
witnesses 	that the October 	9, 	1987 	letter was placed 	in Peart's
file, 	the majority of the 	Board 	inferred 	from the weight 	of 	the
evidence that it did occur. 	Specifically, 	Crawford, 	testified as
an adverse witness 	on direct 	examination that 	"sick 	leave
verifications" 	are the types 	of documents 	that are automatically
placed 	in a personnel 	file. 	Crawford also 	testified 	that 	certain
letters 	from 	supervisors 	are 	"routinely 	[placed] 	in a holding
file" 	to 	see 	if a response 	from the employee is 	submitted, 	prior
to 	its 	final 	entry 	into the personnel 	file. 	Crawford 	further
testified 	that 	routine 	correspondence with 	the 	teachers, 	such 	as
letters 	"setting up a meeting," 	or 	"asking the 	teachers 	to 	serve
on a 	committee," 	are placed in the 	file 	"[i]f 	it was 	something
that had some information 	. 	. 	. 	relative to something that they
[the employee] needed to do 	in terms 	of 	their pay 	schedule 	or
something 	like that." 	(Emphasis 	added.) 	Later Crawford
testified 	concerning the 	contents 	of 	the personnel 	files 	that:
"I 	couldn't say exactly if all of the
individual 	forms 	[regarding 	sick leave, 	leave
without pay and release time] 	are put 	in
there, 	but there is some information, 	I
believe, 	in there that deal with that kind of
thing, 	especially if 	its 	something unusual
that has 	to do with 	--like 	in this 	case with
a pa
- - y dock or 	something of 	that nature. 	If
(2) 	Affirm, 	modify or reverse the proposed
decision, 	order the 	record reopened 	for the
taking of further evidence, 	or take 	such
other action as 	it 	considers proper.
(Emphasis 	added.)
44

where 	they would go 	to 	look to 	see 	if 	there
was 	something that was 	relative to that."
(Emphasis 	added.)
Finally, 	Crawford testified that his 	staff will place 	items
in a 	teacher's 	personnel 	file without 	consulting with him which
they understand are 	appropriate 	for placement 	in the 	file. 	Thus,
the 	majority 	of 	the 	Board 	found 	no 	evidence 	to 	indicate 	the
October 	9, 	1987 	letter was 	treated differently 	from any other
correspondence 	between an 	employee 	and 	supervisor 	about 	matters
involving 	sick 	leave 	verification 	or 	a 	subject possibly 	resulting
in a dock in pay.
Concerning 	its 	argument 	that 	Peart 	did not 	find 	the
October 	9, 	1987 	letter offensive or harmful, 	the District misses
the point with respect to placement of 	the 	letters 	in her
personnel 	file. 	The majority of 	the Board concluded that, 	in
this 	case, 	placement of two 	[of the three] 	letters 	in Peart's
file 	conveyed a message: 	appealing grievances 	can result 	in
placement of 	letters 	in personnel 	files. 	Whether this 	conduct
constitutes 	an 	"adverse 	action" 	by the District 	is 	determined by
an objective 	standard. 	(Palo Verde 	Unified 	School 	District
(1988) 	PERB Decision No. 	689.) 	Accordingly, 	Peart's perceptions
about whether 	she was 	harmed 	is 	irrelevant. 	The District's
allegation of prejudicial error is, 	therefore, 	rejected.
55

2. 	The Evidence 	Does 	Not 	Support 	a 	Finding That 	Several
Teachers 	in the Past 	Requested 	Substitutes 	for More 	Than
Three 	Days 	at 	a 	Time at 	Peart's 	School 	and That 	No
Verification 	Had 	Been 	Requested.
By discrediting various 	examples 	in the record, 	the District
attempts 	to 	show the 	evidence does 	not 	support a 	finding that
several teachers at Peart's school, 	in the past, 	requested
substitutes 	for more than three days 	and that no verification had
been requested. 	The 	District 	contends 	it was prejudiced by this
finding because 	it was, 	in part, 	relied upon by the Board
majority, 	in 	finding discriminatory 	enforcement 	of 	the medical
verification 	requirement.
Examples 	of 	teachers 	out with multiple-day absences 	are
reflected in the testimony of Parker, 	Oleta Richardson
(Richardson), 	Parker's 	secretary, 	and Crawford. 	Parker testified
in response 	to questions 	about 	teachers with multiple-day
absences, 	"We have one teacher that was 	out 	for a week, 	one that
has 	requested yesterday to be out 	for the 	remainder of 	the
week."5 (Emphasis 	added.) 	Additionally, 	both Crawford and
Parker testified about another teacher, 	Mr. 	Zuber, 	whose wife
called 	in and 	notified Parker 	"he would be 	out 	for 	some period 	of
time." 	Finally, 	Richardson testified that a teacher called 	in
sick for three days with the 	flu, 	then called 	in again and
reported he would be out 	two 	additional 	days.
5The teacher 	"out 	for the remainder of the week" 	is
identified as 	the teacher whose 	son died. 	This 	example was 	not
relied upon 	in the 	Board's 	decision.
66

There was 	no 	evidence that the 	teacher 	"out 	for the week"
was 	required to provide a medical verification. 	With regard to
Zuber, 	the District contends 	that none of 	the witnesses were
asked 	if 	he was 	required to provide 	a medical verification and
speculates 	that possibly 	such a verification was 	required. 	This
argument, 	however, 	is rejected. 	Parker, 	responding to that very
question posed by Peart's 	counsel, 	testified that he 	could not
recall 	if 	a verification was 	requested of 	Zuber. 	Parker was 	also
asked twice 	(once by Peart's 	counsel 	and once by the ALJ) 	whether
he 	could 	recall 	any 	occasion 	in which he 	had 	requested 	a 	medical
-
verification of 	employee absences. 	In both 	instances 	Parker
replied 	that he 	could not 	recall 	any 	such occasion. 	In addition,
the ALJ 	noted 	in her proposed decision that 	the parties
stipulated to the 	fact that, 	with one exception, 	no 	such
verification had previously 	been requested 	of 	any 	certificated
employee. 	Accordingly, 	the Board properly concluded that no 	such
verification had been requested 	of 	Zuber.
The 	District 	also 	attempts 	to discredit 	Richardson's 	example
by emphasizing that 	the teacher 	"out with the 	flu" 	did not
request more than three days 	at a time per telephone 	call. 	The
District's 	emphasis 	on the 	number of 	days 	requested per 	telephone
call and the role it played in the Board's decision, 	however, 	is
misplaced. 	Neither Crawford 	nor Parker 	testified 	that 	a 	specific
number of 	days 	of 	absence 	requested would 	necessarily prompt
their 	inquiry. 	In fact, 	both Crawford and Parker testified there
was 	no 	specific policy as 	to when a medical 	verification would be
71

required. 	Crawford 	further testified 	that he would 	request 	the
verification whenever 	"we 	feel 	there's 	any question about 	it" 	or
there 	is 	some 	"discrepancy." 	The Board's 	finding of
discriminatory enforcement, 	therefore, 	was based on the 	fact the
teacher was 	out 	for 	five 	consecutive days 	and no medical
verification was 	requested. 	Accordingly, 	the 	finding that
several 	teachers 	in the past had been absent 	for more 	than three
days 	and no verification was 	requested 	is 	correct.
3. 	The Evidence Does Not Support a Finding That on Three
Occasions 	Dating Back to 	1981. 	Peart Was 	111 	for More Than
Three 	Days 	and No Verification Was 	Requested.
The 	District 	argues 	the 	Board 	erroneously 	found 	that 	Peart
was 	absent 	for more 	than three days 	on three 	separate 	occasions
dating back to 	1981. 	Relying on an exhibit prepared by 	Peart 	on
which 	she 	designated 	certain multiple-day 	absences 	with 	an
asterisk, 	and admitted into evidence at the formal hearing, 	the
District 	asserts 	Peart was 	absent 	on only 	one 	occasion 	for more
than three days. 	The District contends 	it was prejudiced by the
Board majority's 	finding, 	because 	it was 	relied upon in
concluding 	discriminatory 	enforcement 	of 	the 	medical 	verification
requirement.
Specific dates 	listed on the exhibit, 	however, 	indicated
that Peart was 	absent 	for three or more days 	on October 	19-28,
1981 	(ten days); 	September 27 	to October 	5, 	1984 	(seven days);
December 	16-18, 	1985 	(three days)6 and January 12-16 	(five days),
6Peart 	testified 	that 	dates 	indicated by 	an 	asterisk 	on 	the
exhibit 	indicated 	illnesses 	for three days 	or more. 	Such an
indication appears next to the dates December 	16-18, 	1985. 	The
8

20-22 	(three days) 	and 27-30 	(four days) 	in 	1987. 	There 	is 	no
evidence 	that 	Peart was 	required to provide 	a medical
verification on any of 	these 	occasions.
Further, 	the District's attempt to 	limit the Board's
consideration only 	to those days 	indicated with an asterisk by
Peart on the exhibit 	is 	unwarranted. 	The 	fact that Peart may
have 	segregated her medical 	absences 	according 	to 	minor
infirmities 	(such as colds, 	flu, 	chest pains, 	etc.) 	versus
hospitalization and 	surgery does 	not preclude 	the 	Board 	from
considering other dates 	on the 	exhibit. 	Accordingly, 	the
evidence 	supports 	a 	finding that 	Peart was 	absent 	on three
occasions 	dating back to 	1981 	for more than three days.
record 	reflects 	that 	the parties were 	given the 	opportunity 	to
examine 	the 	accuracy of 	her prepared document 	through voir dire
examination, 	but 	that the District 	apparently did not 	exercise
its 	opportunity. 	The record also 	indicates 	the 	District
submitted Respondent's Exhibit I 	(R-I) 	as 	its 	official record
covering this 	same period of time. 	There is, 	however, 	no
testimony 	explaining 	the 	handwritten data 	appearing 	on 	the
District's document. 	Further, 	there 	is 	an apparent discrepancy
on R-I with regard to the dates 	of 	the absence 	(i.e., 	[December]
16-18, 	possibly covering three days) 	and the time 	(days) 	taken
(i.e., 	" 2 " ) . 	The attachments to R-I only partially clarify the
ambiguity. 	One attachment refers 	to December 	16, 	1985 	and
indicates 	"one day" 	absent; 	the other refers to December 	18, 	1985
and 	also 	indicates 	"one day." 	There 	is 	no attachment 	covering
December 	17 	and no testimony, 	other than Peart's, 	covering that
date. 	Thus, 	in light of her testimony that her absence on
December 	16-18 was 	for three days, 	the ambiguity that appears 	on
the 	face of 	the District's 	R-I, 	the 	lack of any testimony to
clarify 	the 	data 	entered on R-I 	or 	explaining 	the 	absence 	of 	an
attachment 	covering December 	17, 	the majority 	found Peart's
document more persuasive on the 	issue 	of 	the number of 	days 	she
was 	absent during this period.
9

4. 	The Evidence Does 	Not Support the Board's 	Finding That 	in
the 	One Other 	Instance When Parker Complained to Crawford 	of
Possible 	Sick Leave Abuse 	or Pursued 	a Medical Verification.
It Was 	Discovered the Teacher Also 	Had Filed Grievances.
This 	allegation by 	the 	District 	arguably has 	merit 	but 	does
not 	change the result of 	the decision. 	Parker, 	in providing an
example 	of 	one 	occasion 	in which he 	contacted Crawford 	about 	the
absence 	of 	a teacher, 	testified the 	contact was 	made 	concerning
the multiple-day absence of 	Zuber. 	Specifically, 	Parker was
asked whether he had 	requested 	sick 	leave 	verifications 	in any
instance where 	it was 	brought 	to his 	attention by his 	secretary
that 	a 	teacher would be 	out 	for more 	than one day. 	At 	first 	he
replied, 	"I 	can't think of 	any." 	Parker then testified that
Zuber's 	absence was 	the one 	occasion he 	reported to Crawford 	and,
when 	the 	question and answer was 	reviewed 	in the 	context 	of 	the
previous 	questions, 	he 	implied the contact was 	for the purpose of
determining whether a medical 	verification 	should be 	sought.
However, 	after it was brought to his 	attention that 	Zuber 	filed
several 	grievances 	against the District, 	Parker attempted to
explain 	he 	contacted 	Crawford 	only 	to 	determine 	how 	long 	Zuber
would be 	out 	and/or whether 	it would be 	considered disability
leave. 	Thus, 	Parker initially represented that he was 	seeking
some verification concerning 	Zuber's 	absence, 	and 	it was 	only
after he was 	questioned about 	the 	grievances 	that he 	sought 	to
undo his 	prior testimony.
Nevertheless, 	even assuming the validity of 	the District's
allegation on the above point, 	the Board's 	ultimate 	finding of
discriminatory 	enforcement of 	a work rule 	for the purpose 	of
10

harassment 	and 	intimidation against 	Peart 	is 	supported by 	the
other 	facts 	identified 	in 	footnote 	3 	of 	the 	Board majority's
opinion.
5. 	The Evidence Does Not Support a Finding that. 	10 	to 	15
Minutes After Receiving a 	Response. 	Peart Went to Parker's
Secretary.
The 	District argues 	there 	is 	insufficient 	evidence 	to
support a 	finding that Peart requested a 	substitute 	10 	to 	15
minutes 	after her grievance was 	denied. 	The District 	claims 	the
correct time is 	5 to 	10 minutes and, 	because the specific time
frame 	involved 	is 	critical 	to 	its 	suspicion Peart may have been
abusing 	sick leave, 	it was prejudiced by the Board's 	reference 	of
10 to 	15 minutes.
This 	argument 	is 	rejected because 	the 	Board 	majority's
opinion did 	not 	turn on whether Peart 	requested 	the 	substitute
within 5 	minutes 	or 	15 	minutes 	of receiving the denial of her
grievance. 	While 	the 	importance of 	the 	time 	frame 	justifying the
District's 	suspicion was 	examined by the Board, 	the theory was,
nevertheless, 	rejected in light of the weight of the evidence. 	A
majority 	of 	the 	Board 	concluded 	the 	District's 	alleged 	suspicion
was 	merely a 	sham 	for the 	real 	reason for the 	request 	(i.e.,
harassment). 	We do not find, 	therefore, 	that the District was
prejudiced by 	the 	differing 	characterizations 	of 	the 	time 	frame
identified 	above.
11

6. 	The 	Evidence Does 	Not 	Support 	a 	Finding That 	Peart 	Stated 	to
Parker's 	Secretary That 	She Was 	Having Severe 	Back Pains 	and
Needed to See a Doctor.
The District 	objects 	to 	two references which appear at
footnote 	5 	of the Board's 	opinion. 	Specifically, 	the District
claims 	that Peart did not tell 	Richardson 	she was 	having 	"severe"
back pains 	or that 	she needed to 	see a doctor. 	The District
contends 	it was 	prejudiced by this 	finding because 	it 	erroneously
credits 	Peart with 	conveying 	information 	to 	Richardson 	concerning
her request 	for a 	substitute.
The 	District's 	allegation of prejudice misses 	the point
because 	that 	footnote merely paraphrases 	events 	underlying the
grievance 	and 	leading up to Peart's 	request 	for a 	substitute.7
The use of 	the adjective 	"severe" 	to describe 	in different terms
the 	amount of 	pain or discomfort Peart 	claimed 	she was
experiencing 	is 	not prejudicial to 	the District. 	Peart testified
that 	she told Richardson, 	"My back is killing me. 	I've had it.
Get me a 	sub for the rest of 	the week." 	(Emphasis 	added.)
7Footnote 5 states, 	in pertinent part:
Peart applied for, 	but was denied, 	a transfer from
her 	teaching 	assignment 	to 	another 	teaching
assignment. 	She then initiated a 	step 	1 	grievance
with her principal, 	Mike Parker 	(Parker), 	which
was 	denied as 	untimely 	filed. 	Ten to 	fifteen
minutes 	after receiving the response, 	Peart went
to 	Parker's 	secretary 	and 	requested 	a 	substitute
for the next four days, 	stating 	she was having
severe back pains 	and needed to 	see a doctor.
Parker, 	hearing only that 	she was 	requesting a
substitute, 	contacted Ray Crawford 	(Crawford).
. 	. 	. 	(Emphasis added.)
(Woodland Joint Unified School District, 	supra. 	fn. 	5,
pp. 	4-5.)
12

Richardson also 	testified 	she was 	told by 	Peart 	her back was
"killing" 	her. 	Thus, 	paraphrasing Peart's condition as 	"severe"
back pain is 	not 	incorrect or prejudicial 	to the District.
The District's 	exception to the phrase 	that Peart advised
Richardson 	"she needed to 	see a doctor" 	has merit. 	Nevertheless,
the 	majority of 	the 	Board 	concluded 	that 	the medical 	verification
was 	imposed 	to 	harass 	Peart 	and was 	not 	based on whether
Richardson was 	told by Peart 	she needed to 	see a doctor. 	The
conclusion was based, 	among other things, 	on the 	finding that the
reasons 	given by the District 	for 	requesting the 	verification
were not credible 	in light of the 	fact that: 	(1) 	Peart was
considered 	by Crawford 	and 	Parker to 	be 	a 	capable 	and
conscientious teacher; 	(2) 	Peart's use of 	sick leave was not
extensive 	or beyond 	the 	ordinary use 	of 	any 	teacher 	in the
District; 	and 	(3) 	the District had no 	suspicion prior to
October 	5 	that 	Peart might be 	abusing 	sick 	leave 	or malingering.
Accordingly, 	the Board's 	reference to the doctor did not
prejudice the District and, 	therefore, 	does not justify
reconsideration of 	the decision.
7. 	The 	Evidence 	Does 	Not 	Support 	a 	Finding That 	Parker Made No
Investigation as 	to the 	Reasons 	for the Request and
Suggested 	to 	Crawford 	That 	Some Action Be 	Taken Against
Peart.
The 	District 	argues 	the 	evidence does 	not 	support 	a 	finding
that 	Parker 	"suggested" 	to Crawford that 	some 	action be 	taken
against Peart. 	The District 	contends 	it was prejudiced by this
finding because 	it was 	relied upon by the 	Board majority 	to
support a conclusion of 	animus 	toward Peart. 	The District's
13

argument, 	however, 	is based on a 	selective reading of Parker's
testimony 	and 	ignores 	testimony 	supporting 	an 	alternative
conclusion. 	Specifically, 	Parker responded on cross-examination
to the question, 	"Were you 	suggesting that Mr. 	Crawford 	follow up
on this 	or were 	just reporting the day's 	events?" 	He 	stated, 	"I
was requesting that something should happen. 	. 	. 	. 	Where do we
go from here. 	. 	. 	. 	What's the next step." 	(Emphasis added.)
Thus, 	while 	other testimony was 	elicited 	from Parker and Crawford
to 	rebut the damage done by Parker's 	statement 	that 	something
should happen, 	the 	evidence 	supports 	the 	finding that Parker
suggested 	some 	action should be 	taken against 	Peart. 	In arriving
at this 	conclusion, 	the Board majority was 	not 	finding that
Parker 	suggested 	that Crawford 	take 	a 	specific 	course 	of 	action,
only that 	some action should be taken. 	Accordingly, 	the
District's 	request 	for reconsideration of 	this 	issue 	is 	denied.
8. 	The Evidence Does 	Not Support the Board's 	Finding That
Crawford Asked Peart 	If 	She Was 	Returning to 	School 	on
October 	9.
The District 	argues 	it was 	prejudiced by this 	finding
because 	the 	Board 	relied 	on 	it when 	concluding that Crawford 	had
already 	judged 	Peart guilty of 	sick 	leave abuse. 	The 	District's
allegation, 	however, 	is without merit.
Peart 	testified that Crawford asked her, 	"Are you returning
to 	school?" 	It 	is 	clear 	from Peart's 	testimony that 	she
understood 	this 	question to mean Crawford was 	asking her 	if 	she
was 	returning 	to 	school 	that 	day 	and 	the ALJ 	concluded 	as 	such 	in
her proposed decision. 	Although Crawford 	offered 	testimony 	to
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rebut Peart's 	account of 	the 	conversation, 	the ALJ 	found her more
credible than Crawford on the 	issue. 	Moreover, 	the Board
majority 	found 	no 	evidence 	to 	justify overturning the ALJ's
determination on this 	fact. 	(Santa Clara 	Unified 	School
District. 	supra. 	PERB Decision No. 	104.) 	Accordingly, 	the
District's 	request 	for reconsideration of 	this 	issue 	is 	denied.
The District also 	contends 	in 	its 	request 	for
reconsideration that 	Peart 	misunderstood 	the 	request 	and 	that
Crawford 	did 	not 	intend 	to 	imply that 	she 	should 	return to 	school
on October 	9. 	This 	latest 	argument by the 	District
characterizing Peart's 	and Crawford's 	state of mind, 	however, 	is
unpersuasive 	and 	also does 	not 	justify reconsideration.
9. 	The Evidence Does Not 	Support the ALJ's 	Finding, 	Adopted by
the Board. 	That the Omissions 	in the Transcript Alleged by
the 	District 	in a 	Separate Motion Constituted 	Harmless
Error.
This 	allegation 	is without merit because 	the ALJ did not
deny 	the 	District's 	motion to 	augment 	the 	record 	on the 	grounds
that 	the 	omitted testimony constituted harmless 	error. 	Rather,
the motion was 	denied because 	the 	request was 	untimely under PERB
regulations. 	Moreover, 	the ALJ's 	reference 	in her proposed
decision to 	the 	alleged omission of 	important 	testimony 	as
harmless 	error was 	not 	relied upon by 	the 	Board majority.
10. 	The Evidence Does 	Not Support a Finding That Peart Was
Harmed When the Request Was 	Purportedly Made 	in Front 	of
Other Clerical 	Employees.
To 	demonstrate 	that 	reconsideration 	is 	warranted under 	PERB
Regulation 	32410, 	the petition must 	show the existence of
extraordinary 	circumstances. 	(Rio 	Hondo Community College
15

District 	(1983) 	PERB Decision No. 	279a.) 	Since the District in
this 	argument 	merely 	reasserts 	an 	argument previously 	considered
and 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. 	In addition, 	for these same reasons, 	the
remaining 	allegations 	of 	error 	alleged by 	the 	District 	in 	its
request 	for 	reconsideration 	are 	rejected.
ORDER
Having found no merit 	in the District's 	allegations, 	the
request 	for reconsideration 	is 	DENIED.
Chairperson Hesse 	joined 	in this 	Decision.
Member Shank's dissent begins 	on page 	17.
16

Shank, 	Member, 	dissenting: 	For the reasons 	stated in my
dissent 	in Woodland Joint 	Unified School 	District 	(1990) 	PERB
Decision No. 	808, 	I would grant the request for reconsideration.
17