California School Employees Association-Chapter 381 (Parisot) (PERB 0280EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
KENNETH L. 	PARISOT, JR.,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL EMPLOYEES
ASSOCIATION 	and 	its 	SHASTA 	COLLEGE
CHAPTER 	#381,
Respondent.
Case No. 	S-CO-62
Request 	for 	Reconsideration
PERB Decision No. 	280
PERB Decision No. 	280a
March 24, 	1983
Appearances; 	Edward L. 	Mann, Attorney 	(Tillman, 	Beasley & Mann)
for Kenneth L. 	Parisot, Jr.; 	Madalyn J. 	Frazzini, Attorney for
California School Employees Association 	and 	its 	Shasta College
Chapter 	#381.
Before Gluck, 	Chairperson; 	Tovar and Morgenstern, Members.
DECISION
GLUCK, 	Chairperson: 	The California School Employees
Association 	and 	its Shasta College Chapter 	#381 	(CSEA) 	request
that 	the Public Employment Relations Board 	(PERB) 	reconsider
Case No. 	S-CO-62, 	PERB Decision No. 	280 	(1/31/83) 	and 	issue a
stay 	of 	all 	proceedings 	ordered 	in 	that 	decision pending
disposition 	of 	the 	motion 	for 	reconsideration.1 In Decision
No. 	280, 	the Board ordered 	the general counsel 	to 	issue a
1PERB 	rules 	and 	regulations 	are 	codified 	at 	California
Administration Code, 	title 8, 	section 31001 et seq.
Section 	32410 provides 	in part:
(a) 	Any party 	to a decision of 	the Board
itself may, 	because of extraordinary
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complaint on 	the charge 	filed by Kenneth L. 	Parisot, 	Jr. 	The
charge 	alleged 	that 	CSEA violated subsection 	3543.6(b) 	of 	the
Educational Employment 	Relation Act 	(EERA)2 by 	suspending
Parisot 	from membership 	in 	the 	organization 	for 	four 	years 	and
barring 	him 	from holding 	office 	for 	twelve 	years 	because 	he
worked 	to decertify 	the 	organization. 	The Board 	found 	that 	the
charge 	alleged 	facts 	sufficient 	to 	establish 	a prima 	facie 	case,
The 	basis 	for 	the 	request 	for 	reconsideration 	is 	that
"newly discovered 	evidence" 	exists 	which 	render 	the 	issues 	in
the 	unfair 	practice 	charge moot. 	This 	evidence 	states 	that on
June 25, 	1982, 	PERB certified a unit modification which
designated 	Parisot 	a 	supervisor. 	CSEA 	contends 	that 	its
constitution 	precludes 	supervisors 	from membership 	and 	holding
circumstances, 	file a request 	to reconsider
the 	decision within 	20 	days 	following 	the
date of service of 	the decision. 	An
original 	and 	5 	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
(c) 	The 	filing of 	a request 	for
reconsideration 	shall 	not 	operate 	to 	stay
the 	effectiveness 	of a 	decision of 	the Board
itself 	unless otherwise 	ordered 	by 	the Board
itself.
2FERA 	is 	codified 	at Government Code 	section 3540,
et 	seq. 	All 	statutory references 	are 	to 	the Government Code
unless 	otherwise 	noted.
2
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office, 	thereby making 	it 	impossible 	for PERB 	to fashion an
effective 	remedy 	should 	the 	Parisot 	complaint 	be 	upheld.
In his 	response, 	Parisot 	accepts CSEA's 	argument 	that,
because 	he 	is 	a supervisor, 	he does 	not possess 	a present 	right
to membership or 	to hold office. 	Nevertheless, 	he maintains
that 	the 	charge 	is 	not moot 	because of 	the 	imposed 	duration of
the 	suspension 	(12 	years) 	and 	the 	possibility 	that he may once
again occupy 	a classification 	that 	is 	represented 	by CSEA.
The 	charge 	before 	the Board 	has 	not 	become 	moot 	by 	the
approved 	unit 	modification 	request 	excluding Parisot's position
of 	food 	services 	supervisor 	from 	the 	classified 	unit. 	In
Amador Valley Joint Union High School District 	(10/2/78) 	PERB
Decision No. 	74, 	the Board held:
A case 	in controversy becomes 	moot 	when 	the
essential 	nature 	of 	the 	complaint 	is 	lost
because of 	some 	superseding 	act or 	acts 	of
the parties.
The 	essential nature of 	this 	complaint has 	not 	been 	lost.
Although 	supervisors 	may 	be 	precluded 	from membership 	by 	the
CSEA constitution, 	it 	is 	undisputed 	that 	at 	the 	time of
Parisot's dismissal 	from 	the Association he 	was 	a member. 	The
central 	issue 	of 	the 	charge 	was 	whether 	this dismissal was
lawful, 	not whether Parisot has a present 	right 	to continue
membership. 	We have 	recognized 	that 	a case 	is 	not moot 	when
any material 	question concerning 	an 	alleged 	violation 	of 	the
charging party's 	rights 	remains 	to be 	answered. 	The 	fact 	that
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because 	of 	"changed 	conditions 	the 	relief 	originally
sought 	. 	. 	. 	cannot be granted" does not lead to a contrary
result. 	Amador Valley, 	supra; 	Hartke v. Abbott 	(1930) 	106
Cal.App.388. 	One 	court 	has 	said 	regarding mootness 	of 	an
appellate 	hearing:
The 	rather 	general 	and 	oft-repeated 	phrases
that 	just 	because 	a judgment 	by 	the
reviewing 	court 	may 	'prove 	ineffectual' 	or
that 	there 	is 	nothing 	'on which 	its 	judgment
can operate' 	travel in a circle 	. 	. 	. 	the
true 	rule 	is 	that an appellant has 	a 	right
to 	have 	settled on 	appeal whether 	there 	has
been a 	ground 	of 	complaint 	against 	him and,
what 	is more, 	that 	such 	a ground may not 	be
deemed 	to 	be 	waived merely 	because 	a
reversal of 	the 	judgment 	is 	'ineffectual' 	to
reinstate 	the original 	status 	quo. 	People
v. Becker 	(1952) 	108 Cal.App. 	2d 764.
We 	find 	no 	reason 	not 	to 	apply 	the 	same 	principle 	to
Parisot's 	right 	to make his 	case-in-chief.
Further, 	there 	exists 	the possibility 	that 	remedies 	other
than 	reinstatement 	may 	be 	found 	appropriate 	should 	Parisot
ultimately prevail; 	this 	is 	a matter 	which 	the Board 	cannot
properly 	determine 	prior 	to 	a 	hearing.3
3Subsection 	3541.5(c) 	provides 	that:
The 	board 	shall 	have 	the 	power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement of 	employees 	with 	or 	without
back pay, 	as 	will effectuate 	the policies of
this chapter.
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For 	the 	foregoing 	reasons, 	the 	request 	for 	reconsideration
and 	motion 	to 	stay 	are 	denied.
ORDER
The 	request 	of 	the California School Employees Association
and 	its Shasta College Chapter 	#381 	for 	reconsideration 	of 	the
Public Employment Relations Board's Decision No. 	280 	and 	stay
of proceedings 	is DENIED.
Members Tovar 	and Morgenstern 	joined 	in 	this Decision.
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