Redwoods Community College District (PERB 1047EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COLLEGE 	OF THE 	REDWOODS 	FACULTY
ORGANIZATION,
Charging 	Party,
v.
REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1583
Request 	for Reconsideration
PERB Decision No. 	1047
PERB Decision No. 	1047a
October 13, 	1994
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Appearances: 	Law Offices 	of Robert J. 	Bezemek by Robert 	J.
Bezemek, 	Attorney, 	for College of 	the Redwoods 	Faculty
Organization; 	School 	and College 	Legal 	Services by Patrick D.
Sisneros, 	Attorney, 	for Redwoods Community College District.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on a 	request 	for reconsideration
by the College 	of 	the Redwoods 	Faculty Organization 	(CRFO)1 of
the Board's 	decision 	in Redwoods 	Community College District
(1994) 	PERB Decision No. 	1047 	(Redwoods CCD). 	In that decision,
the 	Board dismissed 	the 	unfair practice 	charge 	filed by 	CRFO,
finding 	that 	the 	Redwoods 	Community 	College District 	(District)
did not violate section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
1The Board denied CRFO's 	request 	for 	oral 	argument 	which was
filed with 	the 	request 	for 	reconsideration. 	Informational 	briefs
supporting 	CRFO's 	request 	for 	reconsideration were 	submitted by
the AFT College Guild, 	Local 1521, 	CFT, 	AFT, 	AFL-CIO; 	the
California 	Community College 	Independents Association; 	and 	the
California 	School 	Employees Association.
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Employment Relations Act 	(EERA)2 when it adopted a policy-
affecting 	the hiring of part-time, 	temporary instructors 	in
future semesters.
DISCUSSION
PERB Regulation 	324103 provides parties 	the 	opportunity 	to
request 	the Board to reconsider its decisions. 	It 	states, 	in
pertinent 	part:
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.
The 	Board has 	strictly applied 	these 	limited grounds 	in
acting upon requests 	for 	reconsideration. 	PERB has 	denied
requests 	for 	reconsideration which merely 	repeat 	legal 	arguments
already offered, 	or which argue 	that 	the 	Board decision 	contains
errors 	of 	law. 	(Riverside Unified School District 	(1986) 	PERB
Decision No. 	562a; 	Jamestown Elementary School 	District 	(1989)
PERB Order No. 	Ad-187a.) 	To a great extent, 	CRFO's
reconsideration 	request 	repeats 	arguments 	already presented 	and
offers 	additional 	legal 	argument 	in 	opposition 	to 	the 	conclusions
reached by the 	Board 	in Redwoods 	CCD. 	These 	legal 	arguments 	are
not 	newly discovered 	and were 	previously available 	to 	CRFO.
2EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code.
3PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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Therefore, 	they do not 	represent appropriate grounds 	for
requesting 	reconsideration 	of 	the 	Board's 	decision under 	PERB
Regulation 32410.
CRFO does 	assert 	that 	the Redwoods 	CCD decision contains 	a
specific 	prejudicial 	error of 	fact 	in that 	it misconstrues 	facts
concerning 	cancellation of 	classes 	in the District. 	CRFO asserts
that 	class 	cancellation procedures 	have 	been negotiated by 	the
parties 	and 	embodied 	in 	their 	collective 	bargaining 	agreement
(CBA) 	at Article 3.2. 	CRFO argues 	that 	this Article governs
class 	cancellation in the District, 	and that 	the Board erred in
finding 	that 	classes 	may be 	cancelled as 	a 	result 	of 	the 	exercise
of management prerogative.
This argument 	is without merit. 	CBA Article 	3.2 	is 	entitled
"Minimum class 	size." 	It 	contains 	a provision stating 	that
minimum class 	size 	in the District 	shall 	be 	20 	registrants 	for
most 	classes 	and provides 	for exceptions. 	Article 	3.2 	does 	not
contain a 	comprehensive 	class 	cancellation policy, 	nor does 	it
indicate 	that 	the parties 	intended 	through 	this 	article 	to define
the 	only 	circumstances 	under which 	classes 	could be 	cancelled.4
Therefore, 	CRFO's assertion that 	the Board's Redwoods 	CCD
decision 	contains 	a prejudicial 	error of 	fact because 	the Board
ignored a 	negotiated 	class 	cancellation policy 	is 	simply
incorrect 	and 	is 	rejected.
4The 	Board has 	held 	that 	decisions 	to 	cancel 	classes 	fall
within management's prerogative. 	(Mt. 	San Antonio Community
College District 	(1983) 	PERB Decision No. 	297.)
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CRFO also asserts 	that 	the Board's 	consideration of past
practice 	in Redwoods 	CCD 	contains prejudicial 	errors 	of 	fact
because 	the District 	did not 	dispute 	that 	a 	change 	in policy and
practice was adopted in this 	case. 	CRFO argues 	that 	the
District's 	unilateral 	change 	unlawfully affected 	the 	negotiated
limitation on the number of hours part-time, 	temporary
instructors 	could teach, 	which was 	60 percent 	of a 	full-time
teaching 	load as 	described 	in 	CBA Article 	3.9.
This 	argument 	begs 	the 	question posed by 	the underlying
case. 	It 	is undisputed that 	the District adopted a new practice
and/or policy 	in this 	case. 	The 	issue 	considered by the Board 	in
Redwoods 	CCD was 	whether 	that 	adoption 	constituted a unilateral
change 	in a matter within the 	scope 	of 	representation 	in
violation of 	EERA. 	In addressing this 	issue, 	the Board applied
the 	test 	it 	enunciated in Grant 	Joint Union High School 	District
(1982) 	PERB Decision No. 	196, 	and gave consideration to the terms
of 	the parties' 	CBA and the practice within the District with
regard to part-time, 	temporary instructors.
CBA Article 	3.9 	states, 	in pertinent part:
Part-time 	faculty will 	not 	be 	assigned 	to
teach courses 	in excess of 	60% 	of 	the 22.5
TLU's per semester 	(13.5 TLU's).
This 	article 	incorporates 	into 	the 	CBA the 	limitation of
Education Code 	section 	87482.5.5 The parties 	stipulated 	that
5Education Code section 87482.5 	states, 	in pertinent part:
Notwithstanding 	any 	other provision 	of 	law,
any person who 	is 	employed 	to 	teach adult 	or
community 	college 	classes 	for not more 	than
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part-time, 	temporary instructors 	are hired on a 	semester-by-
semester basis 	pursuant 	to 	this 	Education Code provision.
Article 	3.9 	establishes 	the maximum level 	at which any part-time,
temporary 	instructor may be hired. 	It 	does 	not 	address 	the
assignment 	of 	any particular part-time, 	temporary 	instructor to
teach any particular course, 	nor does 	it address 	the assignment
of 	any specific 	or minimum level 	of 	teaching load units 	(TLU) 	to
a part-time, 	temporary instructor. 	The Board 	in Redwoods 	CCD
concluded 	that 	the 	District 	applied 	financial 	and management
considerations 	and 	adopted a policy 	regarding 	the 	future 	hiring
of part-time, 	temporary 	instructors. 	That policy did not alter
the maximum number of 	TLU's 	for which part-time, 	temporary
instructors 	could be hired and, 	therefore, 	does not 	represent a
breach of 	CBA Article 	3.9, 	which remains 	fully in effect. 	CRFO's
assertion 	that 	the 	Board made 	a prejudicial 	factual 	error 	in not
concluding 	that 	the 	policy adopted by 	the 	District 	altered 	the
maximum assignment 	level 	described 	in Article 	3.9 	is 	rejected.
60 	percent 	of 	the hours per week 	considered a
full-time 	assignment 	for 	regular 	employees
having 	comparable 	duties 	shall 	be 	classified
as a temporary employee 	. 	. 	.
CRFO also argues 	that 	the 	Board erred 	in 	failing 	to
recognize 	that 	CRFO demanded 	that 	the 	District 	negotiate 	not 	only
over the new policy, 	but 	also over 	the method of 	calculating work
hours per week 	for part-time, 	temporary instructors, 	a negotiable
effect of 	its 	change 	in policy. 	In Redwoods CCD, 	the Board
reversed 	the proposed decision of 	a 	PERB 	administrative 	law
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judge 	(ALJ). 	The ALJ did not address 	this 	issue 	in his proposed
decision. 	CRFO did not 	except 	to the ALJ's 	decision, 	and did not
raise 	this 	issue 	in 	its brief 	opposing 	the 	exceptions 	to 	the
proposed decision 	filed by the District. 	Exceptions 	to a
proposed decision are 	the 	subject 	of 	PERB Regulation 323 00 	which
states 	that 	"An 	exception not 	specifically urged 	shall 	be
waived." 	Accordingly, 	since 	CRFO 	failed to raise 	this 	issue as
an exception to 	the ALJ's 	proposed decision, 	the Board 	finds 	that
this 	argument 	does 	not 	constitute proper grounds 	for a 	request
for 	reconsideration.6
ORDER
The 	request 	for 	reconsideration 	in Redwoods 	Community
College District 	(1994) 	PERB Decision No. 	1047 	is DENIED.
Chair Blair 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	7.
6The Board 	in Redwoods 	CCD. 	and 	in acting on this 	request
for reconsideration, 	does not 	reach the 	issue of whether CRFO
issued a valid demand 	to negotiate 	over 	the method of 	calculating
work hours per week of part-time, 	temporary 	instructors 	which was
refused by the District; 	or whether that 	refusal 	represents 	a
breach of 	the District's 	duty 	to bargain 	in good 	faith over a
matter within the 	scope 	of 	representation, 	in violation of 	EERA.
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GARCIA, 	Member, 	concurring: 	Without jurisdiction there 	is
nothing 	to 	reconsider. 	As 	stated 	in my dissent 	in Redwoods
Community College District 	(1994) 	PERB Decision No. 	1047, 	the
Public 	Employment 	Relations 	Board does 	not 	have 	jurisdiction 	over
this 	case until 	the 	College 	of 	the Redwoods 	Faculty Organization
shows 	that 	it 	has 	either 	exhausted 	the 	grievance 	agreement 	which
covers 	the dispute 	or that pursuit 	of 	the grievance process 	would
be 	futile. 	Had the grievance process been pursued, 	many of 	the
contractual 	issues 	could have 	become more 	clearly defined 	or
resolved.
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