Long Beach Community College District (California School Employees Association) (PERB 1278EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
LONG 	BEACH 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
) 	Case No. 	LA-CE-3824
Request 	for Reconsideration
PERB Decision No. 	1278
PERB Decision No. 	1278a
October 22, 	1998
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Appearances: 	A. 	Alan Aldrich, 	Senior Labor Relations
Representative, 	for California School 	Employees Association;
Parker, 	Covert & Chidester by Spencer E. 	Covert, 	Attorney, 	for
Long 	Beach 	Community 	College 	District.
Before Caffrey, 	Chairman; 	Dyer and Johnson, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before the Public Employment
Relations 	Board 	(PERB or Board) 	on the 	Long Beach Community
College District's 	(District) 	request 	that 	the Board reconsider
its 	decision 	in Long Beach Community College District 	(1998) 	PERB
Decision No. 	1278 	(Long Beach). 	In Long Beach, 	the California
School 	Employees Association 	(CSEA) 	alleged that 	the District
violated section 3543.5(a), 	(b) 	and 	(d) 	of the Educational
Employment Relations Act 	(EERA)1 by requiring unit members 	to
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	Section 3543.5 provides, 	in relevant
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:

attend a 	severance 	presentation by a 	rival 	employee 	organization
known as 	the 	Long Beach Community College 	Police 	Officer's
Association 	(POA) . 	On August 14, 	1998, 	the Board issued a
decision holding 	that 	the 	District's 	actions violated 	EERA
section 3543.5(a), 	(b) and (d).
(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.
(d) 	Dominate or 	interfere with the 	formation
or administration 	of 	any 	employee
organization, 	or contribute 	financial 	or
other support 	to 	it, 	or in any way encourage
employees 	to join any 	organization in
preference 	to another.
BACKGROUND
The District 	is 	a public 	school 	employer within the meaning
of 	the EERA. 	CSEA is 	the exclusive representative of a unit 	of
District 	employees 	which 	includes 	a 	dozen 	College 	Safety Officers
(CSO) 	employed by the District. 	POA is a rival 	employee
organization 	seeking 	to undertake 	representation of 	the
District's CSO's.
During the week of February 24, 	1997, 	the District required
CSO's 	to attend forty 	(40) 	hours 	of 	in-service 	training. 	The
last 	item on the 	official 	schedule 	for the 	training was 	a one-
hour severance presentation by the 	POA. 	At 	4:00 	p.m. 	on Friday,
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February 28, 	1997, 	the District 	informed employees that the
training had ended and that 	they were 	free 	to go. 	The District
representatives 	then 	turned 	things 	over 	to 	POA and 	left 	the
classroom. 	The 	POA presentation 	took place 	immediately 	following
a mandatory 	training 	session, 	in 	the 	classroom reserved 	for 	the
mandatory 	in-service 	training. 	CSEA became vulnerable 	to
decertification 	on 	the 	following 	day.
The Board noted that 	EERA section 3543.5(d) 	imposes 	on the
District 	an unqualified 	requirement 	of 	strict 	neutrality with
respect 	to employee 	choice 	of 	representation. 	(Long Beach at
pp. 	8-9 	citing 	Sacramento City Unified School 	District 	(1982)
PERB Decision No. 	214 at p. 	3.) 	The Board held that 	the
inclusion of 	the 	POA's 	severance presentation on 	the 	official
training 	schedule would 	lead a 	reasonable 	person 	to 	conclude 	that
the District 	favored POA over CSEA. 	(Long Beach at p. 	9.) 	Since
the District 	failed 	to demonstrate 	that 	it 	had 	taken 	sufficient
remedial 	actions 	to undo 	the 	effects 	of 	the 	training 	schedule,
the 	Board held 	that 	the District's 	actions violated section
3543.5 (a), 	(b) 	and (d) . 	(ID. 	at p. 	10.)
REQUEST 	FOR 	RECONSIDERATION
In its 	request 	for reconsideration, 	the District 	contends
that 	the 	Board made 	a number of prejudicial 	errors 	of 	fact 	in
Long Beach. 	The District's arguments 	essentially 	challenge 	three
aspects of 	the Board's decision. 	First, 	the District 	contends
that 	placing 	the 	POA presentation on 	the 	training 	schedule 	could
not 	lead any 	reasonable person 	to 	conclude 	that 	the District
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favored 	POA over CSEA. 	Second, 	the District argues 	that 	EERA
section 3543.l(b)2 required it 	to place 	the POA meeting on the
training schedule. 	Finally, 	the District 	contends 	that 	it 	cured
any appearance 	of 	bias when District 	representatives 	informed the
CSOs 	that 	attendance was 	voluntary and 	left 	the 	classroom before
the presentation began.
CSEA'S 	RESPONSE
CSEA responds 	that 	the District's 	request 	for
reconsideration 	is 	without merit 	and should be 	rejected. 	This 	is
so, 	CSEA argues, 	because the request 	for reconsideration consists
of 	arguments 	already 	considered and 	rejected by 	the 	Board 	in
Long Beach. 	Further, 	CSEA contends, 	the District's request 	is a
thinly veiled attempt 	to 	challenge 	the 	Board's 	conclusions 	of
law, 	rather than its 	findings of 	fact.
DISCUSSION
PERB Regulation section 324103 provides 	that a party to a
2EERA section 3543.1 provides, 	in relevant part:
(b) 	Employee organizations 	shall have the
right 	of 	access at 	reasonable 	times 	to areas
in which employees work, 	the 	right 	to use
institutional bulletin boards, 	mailboxes, 	and
other means of 	communication, 	subject 	to
reasonable 	regulation, 	and the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the purpose 	of meetings 	concerned with
the 	exercise of 	the 	rights 	guaranteed by this
chapter.
3PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et seq. 	PERB Regulation
section 32410 provides, 	in relevant part:
(a) 	Any party to a decision of 	the Board
itself may, 	because of 	extraordinary
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Board decision may 	request 	reconsideration 	on 	the 	grounds 	that
the decision contains prejudicial 	errors 	of 	fact, 	or newly-
discovered evidence 	or law. 	The Board will 	not 	grant 	a request
for 	reconsideration where 	the party making 	the 	request 	has 	failed
to establish any ground set 	forth in PERB Regulation 32410. 	(See,
e.g., 	California State Employees Association. 	Local 	1000
(Janowicz) 	(1994) 	PERB Decision No. 	1043a-S at pp. 	2-3.)
Likewise, 	reconsideration 	is 	not appropriate where a party merely
restates 	arguments 	considered and 	rejected by 	the 	Board 	in 	its
underlying decision. 	(Id.; 	Regents 	of 	the University of	-
California 	(1990) 	PERB Decision No. 	829a-H at pp. 	2-3.)
circumstances, 	file a request 	to reconsider
the 	decision within 20 	days 	following 	the
date of 	service 	of 	the decision. 	An original
and 	five 	copies 	of 	the 	request 	for
reconsideration 	shall 	be 	filed with 	the 	Board
itself 	in the headquarters 	office 	and shall
state with 	specificity 	the 	grounds 	claimed
and, 	where applicable, 	shall 	specify the page
of 	the 	record relied on. 	Service and proof
of 	service of 	the 	request pursuant 	to Section
32140 	are 	required. 	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.
Here, 	the District 	challenges 	the Board's 	conclusion that 	it
violated 	the 	EERA when 	it 	placed 	the 	POA's 	decertification
presentation 	on 	the 	schedule 	for a week 	of mandatory 	in-service
training. 	The District 	contends 	that no 	reasonable person could
conclude 	that 	the 	training 	schedule 	indicated 	support 	for 	the
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POA. 	Further, 	the District 	contends 	that 	the voluntary nature of
the presentation and 	the 	absence 	of 	District 	representatives 	at
the 	presentation 	constitute 	an honestly given 	retraction
sufficient 	to 	cure 	the 	effects 	of 	including 	the 	POA presentation
on the training schedule. 	In the alternative, 	the District
maintains 	that 	EERA section 3543.1(b) 	required it 	to place 	the
POA decertification presentation 	on 	the 	training 	schedule.
As CSEA points out, 	however, 	the District does not actually
challenge any of 	the Board's 	factual 	findings, 	focussing 	instead
on 	the 	legal 	conclusions 	that 	the Board drew from those 	findings.
Further, 	the District's 	request 	for reconsideration restates
arguments 	considered and 	rejected by 	the 	Board 	in 	the 	underlying
decision. 	Accordingly, 	the District's 	request 	for
reconsideration 	fails 	to meet 	the 	standard 	set 	forth 	in 	PERB
Regulation section 32410.
ORDER
The 	request 	for reconsideration in Case No. 	LA-CE-3824 	is
hereby 	DENIED.
Chairman Caffrey and Member Johnson 	joined 	in 	this 	Decision.
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