Barstow Unified School District (PERB 1138EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	BARSTOW
CHAPTER 	#306,
Charging 	Party,
v.
BARSTOW UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3396
Request 	for Reconsideration
PERB Decision No. 	113 8
PERB Decision No. 	1138a
May 31, 	1996
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)
)
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Appearances: 	California School 	Employees Association by
William C. 	Heath, 	Attorney, 	for California School 	Employees
Association and its Barstow Chapter #306; 	Atkinson, 	Andelson,
Loya, 	Ruud and Romo by Ronald C. 	Ruud, 	Attorney, 	for Barstow
Unified 	School 	District.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on a 	request by the
California 	School 	Employees 	Association and 	its 	Barstow
Chapter #306 	(CSEA) 	that 	the Board 	reconsider its 	decision in
Barstow Unified School District 	(1996) 	PERB Decision No. 	1138
(Barstow USD). 	In that decision, 	the Board found that the
Barstow Unified School District 	(District) 	did not violate
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations Act 	(EERA)1 when it 	refused to negotiate with CSEA and
BERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:

unilaterally 	contracted 	out 	pupil 	transportation 	and vehicle
maintenance 	services 	in June 	1993.
BACKGROUND
In Barstow USD, 	the Board 	interpreted language within the
District 	Rights 	article 	of 	the parties' 	collective bargaining
agreement 	(CBA) 	which gave 	the District 	the 	exclusive 	right 	to
"contract 	out work, 	which may lawfully be 	contracted 	for." 	The
Board determined 	that 	this 	language 	clearly gave 	the District 	the
right 	to 	contract 	out, 	and 	constituted a 	clear and unmistakable
waiver by CSEA of 	its 	right 	to negotiate 	over 	the 	District's
decision to do 	so. 	In reaching 	this 	conclusion, 	the Board was
aware 	of 	separate 	legal 	action 	in which CSEA was 	challenging 	the
lawfulness 	under 	the 	Education 	Code 	of 	the District's 	contracting
out 	of 	transportation services. 	The Board stated at 	footnote 	6:
The Board notes 	that 	the 	question of 	the
lawfulness under 	the 	Education Code 	of
contracting 	out 	transportation 	services 	is
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.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
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being pursued by 	the 	parties 	in a 	separate
legal 	action in the 	courts. 	The Board's
decision here 	addresses 	the 	District's 	right
with 	regard to 	contracting 	out 	which 	is
determined 	to be 	lawful.
In effect, 	the Board 	in Barstow USD determined 	that 	the District
had 	the 	contractual 	right 	to 	contract 	out 	transportation
services, 	assuming 	it was 	lawful 	to do so under the Education
Code. 	The Board did not 	consider the Education Code 	issue, 	which
the 	parties 	were 	already 	litigating before 	the 	Fourth District
Court of Appeal.
The 	Board's 	decision 	in Barstow USD was 	issued on
February 20, 	1996. 	On March 18, 	1996, 	the court 	issued its
decision 	concerning 	the 	Education 	Code 	issue 	which 	reversed 	the
decision 	of 	the 	San Bernardino 	County Superior 	Court 	and 	remanded
the 	case 	to 	the 	lower court with directions. 	(Personnel
Commission of 	the Barstow Unified School 	District v. 	Barstow
Unified School District 	et 	al. 	(1996) 	Cal.App.4th
[50 	Cal.Rptr.2d 797] 	(Personnel 	Commission of 	the Barstow USD).)
Specifically, 	the 	lower 	court was 	directed to 	stay 	its
proceedings 	regarding 	CSEA's 	Education Code 	claims 	pending 	the
exhaustion by CSEA of 	its 	administrative 	remedy at 	PERB.
CSEA'S 	REQUEST 	FOR 	RECONSIDERATION
CSEA's 	request 	for reconsideration 	is based on 	two grounds.
First, 	CSEA argues 	that 	the Board's decision in Barstow USD
contains 	a prejudicial 	error of 	fact 	in the Board's 	finding 	that
the parties' 	CBA contained no 	limitation on the District's
contractual 	authority to 	contract 	out work. 	CSEA argues 	that 	the
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inclusion of 	the phrase 	"which may 	lawfully be 	contracted 	for" 	in
the 	contracting 	out 	provision 	incorporates 	within 	the 	CBA any
Education 	Code prohibitions 	against 	contracting 	out.
CSEA cites 	Roseville 	Joint 	Union High School 	District 	(1986)
PERB Decision No. 	580 	(Roseville Joint UHSD) 	asserting that 	in
the 	face 	of 	similar contracting out 	language within a CBA, 	PERB
noted 	that 	the 	contracting 	out 	of 	janitorial 	work was 	prohibited
by the Education Code. 	Accordingly, 	the Board stated that 	to the
extent 	that 	the District 	had 	contracted out 	janitorial 	work, 	it
had violated 	the 	Education 	Code 	and 	the 	EERA by making 	an
unlawful 	unilateral 	change. 	CSEA argues 	that 	the 	circumstances
here are analogous, 	stating 	that 	"this 	case 	turns 	on the
interpretation of 	the 	Education Code."
CSEA asserts 	that 	"PERB has 	the 	jurisdiction 	to 	interpret
the 	Education 	Code." 	Referring 	to Whisman Elementary School
District 	(1991) 	PERB Decision No. 	868 	(Whisman El. 	SD). 	CSEA
notes 	that 	PERB 	interprets 	the 	Education Code 	as 	necessary 	to
carry out 	its 	responsibility to administer 	the 	EERA. 	CSEA then
argues 	that 	the 	contracting 	out 	of 	transportation services 	in a
merit 	district 	is 	prohibited by the 	Education Code, 	summarizing
the arguments 	included in 	its brief 	to 	the appellate 	court 	on
this 	issue.
The 	second basis 	of 	CSEA's 	request 	for reconsideration 	is
"newly discovered evidence" 	in 	the 	form of 	the 	tentative 	opinion
of 	the 	Fourth District Court 	of Appeal, 	mailed to the parties 	on
January 29, 	1996. 	CSEA asserts 	that 	the opinion tends 	to show
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that 	the 	court 	will 	defer 	to 	PERB 	on 	the 	Education Code 	issue
which 	PERB 	did not 	consider 	in Barstow USD.
DISTRICT'S 	RESPONSE
The 	District 	opposes 	CSEA's 	request 	for reconsideration.
The 	District 	states 	that 	CSEA elected 	to 	litigate 	the 	Education
Code 	issue 	in 	the 	courts 	and not 	in a 	PERB unfair practice 	charge
proceeding. 	In fact, 	the District notes 	that 	CSEA stated during
the hearing before 	the administrative 	law judge 	(ALJ) 	that 	PERB
was 	not being asked to rule 	on the 	Education Code 	issue. 	In 	its
response 	to 	the District's 	exceptions 	to 	the ALJ's proposed
decision, 	CSEA refers 	to 	the 	court's 	consideration of 	the
Education Code, 	stating that 	PERB 	is without 	jurisdiction to
enforce 	the 	Education Code. 	The District 	asserts 	that 	"CSEA now
seeks 	to 	completely 	reverse 	its 	position" 	in its 	reconsideration
request, 	something 	it 	cannot 	do 	since 	the Board will 	not
entertain 	issues 	raised 	for the 	first 	time 	on appeal 	of 	an ALJ
decision. 	(Marin Community College District 	(1978) 	PERB Decision
No. 	55 	(Marin CCD).)
The District 	notes 	that 	the 	tentative 	appellate 	court
decision 	referred 	to by CSEA in 	its 	request 	has 	been 	replaced by
a 	final, 	published decision. 	(Personnel 	Commission of 	the
Barstow USD.) 	Since 	the 	court 	has 	remanded the matter 	to 	the
Superior 	Court 	and 	stayed 	the 	proceedings 	on the 	Education 	Code
issue, 	the District notes 	that 	CSEA is 	free to pursue 	the
Education 	Code 	issue 	in 	court 	after 	exhausting 	its 	administrative
remedy at 	PERB.
5

The District distinguishes Roseville Joint UHSD, 	cited by-
CSEA, 	since 	the parties 	in 	that 	case 	litigated a dispute 	over an
Education Code 	interpretation 	in 	the 	context 	of 	a Board agent's
dismissal, 	while here CSEA chose 	to litigate 	the 	Education Code
issue 	in court, 	and not at PERB.
DISCUSSION
PERB 	Regulation 	32410 	provides 	parties 	with 	the 	opportunity
to request 	reconsideration of a Board decision. 	It 	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.
In Barstow USD, 	the Board did not 	consider the 	issue 	of 	the
lawfulness 	under 	the 	Education Code 	of 	contracting 	out
transportation 	services by the District. 	The Board 	specifically
noted 	that 	that 	issue 	was 	being 	litigated by the 	parties 	in 	the
courts. 	Since 	the 	case was presented to the Board as a contract
interpretation/waiver case, 	and the parties were 	litigating 	the
Education Code 	issue 	in 	court, 	the Board did not 	consider 	that
issue 	in 	the 	interest 	of 	judicial 	economy.
The 	Court 	of Appeal 	has now issued 	its 	opinion 	in which 	it
addresses 	in 	some 	depth the proper role 	of 	PERB and the 	court 	in
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considering 	the 	issues 	raised by a 	case 	such as 	this. 	The 	court
frames 	the question as:
. 	. 	. 	whether CSEA was entitled to proceed in
the 	superior court 	on the basis 	that 	the
pleadings 	in that 	court 	alleged 	only
Education Code violations, 	in spite of 	the
pendency 	of 	CSEA's 	PERB 	charge 	alleging
claims 	over which 	PERB undeniably would have
exclusive 	initial 	jurisdiction.
Citing El 	Rancho Unified School Dist, 	v. 	National 	Education Assn.
(1983) 	33 Cal.3d 946 	[192 Cal.Rptr. 	123], 	the court determines
that 	the 	issue presented 	in the proceedings before 	PERB 	and 	the
court 	is 	fundamentally the 	same 	- 	the 	legality of 	the District's
action to 	contract 	out 	transportation services. 	The 	court 	notes
that, 	while 	PERB 	lacks 	jurisdiction to enforce 	the Education Code
(Oxnard Educators Association 	(Gorcey/Tripp) 	(1988) 	PERB Decision
No. 	664 	(Oxnard Educators Assn.)), 	exhaustion of the
administrative 	remedy at 	PERB 	is 	required even when 	PERB 	lacks
jurisdiction over some 	of 	the 	issues 	involved. 	(Leek v.
Washington Unified School Dist. 	(1981) 	124 	Cal.App.3d 43 	[177
Cal.Rptr. 	196].) 	The court states 	that:
. 	. 	. 	no case has been brought to our
attention, 	and we have 	found none, 	in which a
litigant 	was permitted 	to proceed 	in 	superior
court 	on a 	claim that 	the 	adverse party's
conduct violated the Education Code, 	while
proceeding 	simultaneously before 	PERB 	on a
claim that 	the 	same 	conduct 	violated 	the
EERA.
The 	court 	further notes 	that 	PERB 	in 	this 	case 	could 	furnish
relief 	equivalent 	to 	that which the 	court 	could provide, 	a
consideration which 	further 	requires 	exhaustion of 	the
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administrative remedy. 	(San Diego Teachers Assn. 	v. 	Superior
Court 	(1979) 	24 Cal.3d 1 	[154 Cal.Rptr. 	893].)
It 	is 	important 	to note 	that 	the 	court was 	aware 	of 	the
Board's 	decision 	in Barstow USD when 	it 	issued 	its 	decision.
However, 	the 	court 	notes 	CSEA's 	request 	for reconsideration and
concludes:
Because 	CSEA failed 	to 	exhaust 	its 	remedy,
the 	trial 	court 	lacked 	jurisdiction 	to
proceed, 	and its 	judgment was premature and
is not properly before us 	for review.
As 	noted by the 	court, 	PERB 	is without 	jurisdiction to
enforce the Education Code 	(Oxnard Educators Assn.). 	However,
the 	Board does 	have 	jurisdiction 	to 	interpret 	the 	Education Code
as 	necessary to 	carry out 	its 	duty to administer EERA. 	In doing
so, 	the Board seeks 	to harmonize 	the 	legislative 	intent
underlying 	the 	EERA with 	the 	Education Code provisions.
(San Bernardino 	City Unified School 	District 	(1989) 	PERB Decision
No. 	723; Whisman El. 	SD.)
CSEA correctly asserts 	that 	this 	case 	turns 	on 	the
interpretation of 	the Education Code. 	If 	it 	is 	lawful 	under the
Education 	Code 	for 	the District 	to 	contract 	out 	transportation
services, 	then the language of the parties' 	CBA gives 	the
District 	the 	right 	to do 	so without 	further negotiations 	pursuant
to EERA. 	If 	it 	is 	not 	lawful under the Education Code 	for the
District 	to 	contract 	out 	transportation services, 	then the
District 	did not 	have 	the 	right under 	the 	CBA to do 	so, 	and 	its
action 	constituted an unlawful 	unilateral 	change 	in violation of
the 	EERA.
8

The 	court 	has 	described 	the policy 	considerations 	requiring
parties 	to exhaust 	their administrative 	remedy at 	PERB. 	As 	part
of 	the administrative proceedings at 	PERB, 	it 	is 	clear that 	the
Board may 	interpret 	the 	relevant 	Education 	Code 	provisions 	in
this 	case 	to determine 	if 	an EERA violation occurred. 	The
District 	does 	not 	dispute 	the Board's 	authority to do 	so 	in 	its
opposition to 	this 	request 	for reconsideration, 	stating 	that
"CSEA 	could have 	asked 	for an 	interpretation 	of 	the 	Education
Code in the unfair practice proceeding 	. 	. 	. 	."
With the benefit of 	the guidance of 	the court, 	it 	is
apparent 	now 	that 	the principle 	of 	exhaustion 	of 	administrative
remedies, 	as well as the 	interests of judicial 	economy, 	would
have been well 	served by 	PERB 	interpreting 	the 	Education 	Code
provisions 	as part 	of 	the 	original 	proceedings 	in Barstow USD.
While 	PERB did not do so 	in its 	original 	decision, 	the guidance
of 	the 	court makes 	it 	clear that 	it 	remains 	appropriate 	for PERB
to do 	so now. 	The principles 	of administrative 	exhaustion and
judicial 	economy 	lend 	support 	to 	the 	Board's 	responsibility and
authority 	to 	interpret 	the 	Education 	Code 	provisions 	here 	as
necessary 	to 	determine whether 	an 	EERA violation 	has 	occurred.
Consequently, 	the Board concludes 	that 	the 	opinion of 	the
appellate 	court 	in 	Personnel 	Commission 	of 	the 	Barstow USD
constitutes 	newly discovered 	law which was 	not 	previously
available within 	the meaning 	of 	PERB Regulation 	32410.
Reconsideration by 	the Board 	of 	its 	decision 	in Barstow USD 	is
appropriate, 	with reconsideration limited to the 	sole 	issue 	of
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whether 	it was 	lawful under the Education Code and, 	therefore,
under 	the 	EERA, 	for 	the District 	to 	contract 	out 	transportation
services 	in June 	1993.
The 	primary 	contention of 	the District 	in 	opposing 	this
reconsideration 	request 	is 	that 	CSEA selected 	the 	forum in which
to pursue 	its 	Education Code 	claim, 	choosing judicial 	rather 	than
PERB 	review, 	so 	to allow CSEA 	"to 	completely reverse 	its
position" 	now is 	inappropriate. 	The District 	cites Marin CCD 	for
the proposition 	that 	PERB will 	not 	entertain any 	issue 	raised 	for
the 	first 	time 	on appeal 	of 	an ALJ's 	decision.
First, 	as noted by the court, 	PERB's 	jurisdiction to
interpret 	the 	Education Code 	as 	necessary 	to administer 	the 	EERA
is 	not 	subject 	to 	the 	forum selection preferences 	of 	the parties.
(Fresno Unified School Dist, 	v. 	National 	Education Assn. 	(1981)
125 Cal.App.3d 259 	[177 Cal.Rptr. 	888].) 	Similarly, 	the
determination of 	the 	issues 	to be 	considered 	in an unfair
practice 	proceeding before 	PERB 	is 	made by 	the 	Board and 	its
agents, 	and not by the parties 	to the proceeding.
Second, 	the District's 	citation to Marin CCD 	is misplaced.
That 	case 	involved an appeal 	of 	a Board agent's 	decision 	in which
a party made 	the 	contention 	for 	the 	first 	time 	on appeal 	to 	the
Board 	that 	an 	employee met 	the 	EERA definition 	of 	"confidential
employee" 	rather than 	"management 	employee." 	The 	Board declined
to 	consider 	the 	assertion because 	the 	parties 	had not 	been given
the 	opportunity to present 	evidence 	on the 	issue. 	The 	question
before 	the Board here arises 	in the 	context 	of 	a 	request 	for
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reconsideration, 	the 	standard 	for which 	specifically provides
that 	newly discovered evidence 	or 	law, 	obviously not 	previously
presented by the parties, 	represents 	appropriate grounds 	for
requesting 	reconsideration.
The 	principle 	underlying 	the 	Board's 	action 	in Marin CCD,
that 	the 	parties 	must 	be provided due 	process 	and adequate
opportunity to present 	their 	evidence and arguments, 	is 	relevant
here. 	CSEA has presented argument 	on the 	issue 	of 	the 	lawfulness
of 	the District's 	contracting 	out 	of 	transportation 	services
under the Education Code, 	but 	the District has not. 	It 	is
essential 	that 	both parties 	have 	the 	opportunity 	to present
argument 	on this 	issue upon the Board's 	granting 	of 	this 	request
for reconsideration. 	Therefore, 	it 	is appropriate 	for the Board
to provide 	the parties with 3 0 	days 	to submit written argument 	to
the Board on the 	sole 	issue 	of 	the 	lawfulness 	of 	the District's
contracting 	out 	of 	transportation 	services 	under 	the 	Education
Code and, 	therefore, 	under the EERA.
ORDER
The 	request 	by 	the 	California 	School 	Employees 	Association
and 	its 	Barstow Chapter #3 06 	that 	the 	Public Employment 	Relations
Board 	reconsider 	its 	decision 	in Barstow Unified 	School 	District
(1996) 	PERB Decision No. 	1138 	is hereby GRANTED. 	Reconsideration
is 	granted 	for 	the 	sole purpose 	of 	determining whether 	the
District's 	contracting out 	of 	the 	transportation 	services 	in
June 	1993 	was 	lawful 	under 	the 	Education Code.
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It 	is 	further ORDERED 	that 	the parties 	to 	this matter file
supporting briefs with the Board within 3 0 	days 	of 	service 	of
this 	Order solely on 	the 	issue 	of whether 	the District's
contracting out 	of 	transportation services 	in June 	1993 	was
lawful 	under 	the 	Education Code.
A document 	is 	considered 	"filed" 	when actually 	received by
the 	appropriate 	PERB 	office before 	the 	close of 	business 	on 	the
last 	day 	set 	for 	filing; 	or when addressed 	to 	the proper 	PERB
office, 	sent by telegraph, 	certified or Express United States
mail 	and postmarked not 	later 	than 	the 	last 	day 	set 	for 	filing.
Service 	and proof 	of 	service 	are 	required. 	(PERB Reg.
secs. 	32135 	and 32140.)2
Member Johnson 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	13.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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GARCIA, 	Member, 	concurring: 	I would grant the California
School 	Employees 	Association 	and 	its 	Barstow Chapter 	#309's
request 	for 	reconsideration 	of 	Barstow Unified 	School 	District
(1996) 	PERB Decision No. 	1138 because 	the decision of the Court
of Appeal 	in Personnel 	Commission of 	the Barstow Unified School
District v. 	Barstow Unified School 	District 	et 	al. 	(1996)
Cal.App.4th 	[50 Cal.Rptr.2d 797], 	issued shortly after
PERB Decision No. 	113 8, 	constitutes new law that potentially
modifies 	the 	foundation of Decision No. 	1138. 	Under PERB
Regulation 32410, 	the Board 	can and should reconsider this 	case.
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