State Center Community College District (PERB 1471EA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, STATE CENTER
CHAPTER 379,
Charging Party,
V.
STATE CENTER COMMUNITY COLLEGE
DISTRICT,
Res ondent.
Case No. SA-CE-1908-E
Request for Reconsideration
PERB Decision No. 1471
PERB Decision No. 1471a
February 	28, 	2002
Appearances: 	California School Employees Association by Douglas Herbek, Attorney, for
California School Employees Association, State Center Chapter 379; Law Firm of Zampi and
Associates by Mary E. Foster, Attorney, for State Center Community College District.
Before Amador, Baker and Whitehead, Members.
DECISION
BAKER, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on a request by the State Center Community College District (District) that
the Board grant reconsideration of State Center Community College District (2001) PERB
Decision No. 1471 (State Center). In State Center, the Board adopted the proposed decision of
an administrative law judge (ALJ) which found the District violated section 3543.5(a), (b) and
(c) of the Educational Employment Relations Act (EERA) 1 by withholding unit members'
1 EERA is codified at Government Code section 3540 et seq. Section 3543.5 provides,
in pertinent part:
It shall be unlawful for a public school employer to do any of the
following:

home telephone numbers from the California School Employees Association, State Center
Chapter 379 (CSEA).
After reviewing the entire record in this matter, including the District's request for
reconsideration and CSEA's response to the request, the Board denies the request for
reconsideration based on the following.
DISCUSSION
PERB Regulation 3241 O(a)2 permits any party to a decision of the Board itself, because
of extraordinary circumstances, to request the Board to reconsider that decision. It states, in
pertinent part:
The grounds for requesting reconsideration are limited to claims
that: 	(1) the decision of the Board itself contains prejudicial
errors of fact, or (2) the party has newly discovered evidence
which was not previously available and could not have been
discovered with the exercise of reasonable diligence.
In reviewing requests for reconsideration, the Board has strictly applied the limited grounds
included in PERB Regulation 32410, specifically to avoid the use of the reconsideration
(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 ofrights 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.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. The regulations and statutes administered by the Board may be found at
www.perb.ca.gov.
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process to reargue or relitigate issues which have already been decided. 	(Redwoods
Community College District (1994) PERB Decision No. 1047a.)
In its request for reconsideration, the District claims that the Board's State Center
decision contains prejudicial errors of fact. 	According to the District:
The predominant error is that the meaning which the CSEA
attributed to the nondisclosure clause of an existing settlement
agreement was that understood by the parties at the time of
contracting.
The District argues that once the Board concluded that the meaning attributed to the
nondisclosure clause by CSEA was the correct one, the Board readily found that the clause did
no more than reiterate existing law regarding disclosure of personal information to CSEA,
thereby rendering the settlement agreement a nullity.
The "prejudicial error of fact" argument made by the District first requires a finding
that weighing extrinsic evidence for the purpose of contract interpretation presents a question
of fact. 	Basically, the District argues that because the Board adopted the ALJ' s proposed
decision which concluded the settlement language was ambiguous, the ALJ (and then the
Board through adoption of the ALJ' s decision) must have weighed the conflicting evidence
presented by the parties and decided that CSEA, through its witness Derek Pullinger
(Pullinger), presented persuasive proof of the parties' actual understanding of the disputed
contract term.
The District's request for reconsideration lists three alleged prejudicial errors of fact
made by the Board in support of its argument that the Board accepted CSEA's position:
(1) The Board erred in concluding that Mr. Pullinger believed
that the 1997 settlement agreement did nothing more than
incorporate statutory requirements for disclosure.
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(2) The Board erred in finding that the District condends that the
parties understood the District Directory form to be the sole basis
for withholding telephone numbers under the 1997 settlement
agreement.
(3) The Board erred in finding facts regarding the intent of
individual CSEA bargaining unit members in order to determine
the meaning of the 1997 settlement agreement.
CSEA responds that the District has not pointed to anything in the record where the
District made clear to CSEA that it would not have to disclose home phone numbers of
members who asked that such numbers not be given to particular entities other than CSEA, if
those members did not specify CSEA. CSEA argues the District's position relies on subjective
evidence not in the record. CSEA responded to each of the District's three specific "prejudical
error of fact" arguments and can be summarized as: (1) PERB did not err in stating
Pullinger' s intent, and the District has failed to prove that his intent was other than PERB has
already found. 	Rather, PERB properly focused on the insufficiency of the District Directory
form as a means of deciding when to withhold employees' home contact information as the
pivotal issue; (2) CSEA argues that even assuming the ALJ and the Board misstated the
District's argument, it is not an error of fact, since argument is not fact and even if it were, the
District has failed to show how it suffered prejudice as a result of the alleged error, and (3)
CSEA argues that the District not only had an opportunity to present evidence regarding the
intent of individual employees, but actually did present evidence on this point. CSEA argues it
is the employees who decide who gets their home contact information and the settlement
agreement governs how such requests are interpreted and honored, therefore the information
was highly relevant.
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The District argues that had the Board found the parties intended that the District could
refuse to disclose home contact information for any employee who submitted any request that
the District not release the information, CSEA's case would have been dismissed. Rather, the
Board found that the parties agreed to require release
of
the information except where
an
employee requested nondisclosure either to CSEA or to anyone. The District further argues
that this conclusion was based largely on the error
of
fact as to Pullinger' s understanding at the
time
of
entering into the 1997 settlement agreement. The District claims that "Ultimately, this
error
of
fact was the basis for concluding that the District Directory did not satisfy the intent
of
the parties as to requests for privacy."
The Board need not resolve whether the District's argument that this situation presents
a question
of
fact is correct because neither the ALJ nor the Board accepted
CSEA's
evidence
regarding intent in reaching the 1997 settlement agreement as true in adjudicating the dispute.
Instead, the dispute was resolved against the District based on the content
of
the District
Directory form itself even when read in the context
of
the 1997 settlement agreement.
	At
pages 4-5
of
State Center the Board stated:
The form, titled 1999 District Directory Data Entry Form, very
clearly on its face concerns nothing more than the District
Directory which includes home addresses and phone numbers.
Nowhere on this form is there an indication that an employee's
expression on this form intends to express his or her statutory
right to withhold this information from CSEA or from anywhere
other than the District home directory.
As neither the ALJ nor the Board relied upon Pullinger' s testimony in reaching the
decision, it is not possible that the Board's decision contains a "prejudicial error
of
fact" and
therefore, the District's request for reconsideration merely reargues the case, thus failing to
demonstrate grounds sufficient to comply with PERB Regulation 32410(a).
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The District also argues in its request for reconsideration that:
Once the ALJ found that the District contended that the parties
understood the District Directory form to be the sole basis for
withholding personal information under the 1997 settlement
agreement, he then held the District to proving the point.
(Emphasis added.)
This argument misrepresents the position
of
the ALJ and the Board. The word "sole" does not
appear in the ALJ's decision nor in the Board's decision. 	The Board's decision is essentially
that notwithstanding the settlement agreement and its "in any case" language, the District
Directory form is insufficient to extinguish CSEA's right to the information.
On its face, the District Directory form concerns only publishing the home contact
information in the District Directory, not withholding the information from CSEA or from
anywhere other than the District Directory. The oniy issue before the ALJ and the Board was
whether the District was justified in withholding the home numbers from CSEA based upon
the District Directory form. 	The Board very clearly held the District is not justified in doing
so. In other words, the Board decision did not make a judgment as to what type
of
form or
other written manifestation
of
intent could be used to determine whether an employee has
expressed his or her statutory right to withhold information; it only held that the District
Directory form on its face was insufficient to express the statutory right.
The parties' 1997 settlement agreement reads:
[T]elephone numbers will not be provided in any case where the
unit member has requested such information not be disclosed by
the District.
In its request for reconsideration, the District states "[t]hat the District's position is that
in 1997 the parties agreed to continue the past practice whereby the District would not disclose
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a home telephone number to CSEA for any employee who had made any request that the
number not be disclosed."
In order for the District to prevail in this matter, the Board would have to accept that
"for any employee who had made any request" means that once any request is made, no matter
how narrow or specific, that request could be interpreted by the District to extinguish
CSEA's
right to the information. For example,
if
an employee provided a written statement to the
District stating narrowly that she did not want her home contact information released to a
supplemental life insurance carrier, the District could use this narrow request to also keep the
information from CSEA. Clearly, neither the supplemental life insurance carrier hypothetical
nor the District Directory form at issue in this case is sufficient to express an employee's desire
to withhold information from CSEA under Government Code section 6254.3. As such, the
District's position in this case is untenable and the request for reconsideration must be denied.
ORDER
The State Center Community College District request for reconsideration
of
the Board's
decision in State Center Community College District (2001) PERB Decision No. 1471 is
hereby DENIED.
Member Whitehead joined in this Decision.
Member Amador's concurrence begins on page
8.
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AMADOR, Member, concurring: 	I concur in the majority's conclusion that the State
Center Community College District (District) has failed to demonstrate grounds sufficient to
comply with PERB Regulation 32410(a).
As I wrote a dissent to the underlying decision, I disagree with portions
of
the
majority's rationale in the instant reconsideration request. I would not grant this
reconsideration request because I view it as an attempt to reargue issues which have already
been decided
by
the Public Employment Relations Board. (Redwoods Community College
District (1994) PERB Decision No. 1047a.)
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