Oakland Unified School District (PERB 0275EB)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
OAKLAND UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-408
Request 	for 	Reconsideration
PERB Decision No. 	275
PERB Decision No. 	275b
May 24, 	1984
Appearances; 	Andrew Thomas Sinclair, 	Attorney 	for 	Oakland
School Employees Association; 	Sharon D. 	Banks, 	Attorney 	for
Oakland 	Unified 	School 	District.
Before Hesse, 	Chairperson; Jaeger, 	Morgenstern and Burt,
Members.
DECISION
BURT, 	Member: 	The Public Employment Relations Board 	(PERB
or 	Board) 	having 	duly 	considered 	the 	Oakland School Employees
Association's 	(Association or OSEA) 	request 	for
reconsideration, 	hereby grants 	that 	request 	in part, 	consistent
with 	the 	discussion 	below.
PROCEDURAL 	HISTORY
On October 	4, 	1979, 	the Association 	filed charges 	in Case
No. 	SF-CE-408, 	alleging, 	inter 	alia, 	that the Oakland Unified
School District 	(District) 	had 	failed 	or 	refused 	to bargain 	in
good 	faith 	regarding Association 	proposals 	for 	a 	four-hour
workday 	for 	paraprofessional 	employees, 	personnel 	selection
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criteria 	to 	fill 	vacant 	positions 	within 	the 	negotiating 	unit,
and 	in-service 	training. 	Hearing 	was 	held on November 	20, 	1979 •
On May 27, 	1980, 	the Association filed charges 	in Case No.
SF-CE-469, 	which were 	amended on July 8, 	1980 	to 	include 	an
allegation 	that 	the 	District 	unilaterally 	implemented 	a
standardization 	of 	hours 	policy 	for 	paraprofessional 	employees
and 	refused 	to provide 	information 	about 	the 	policy. 	Hearing
commenced on September 2, 	1980.
On September 	12, 	1980, 	on the Association's motion, 	the
hearing 	in SF-CE-408 	was 	reopened 	to 	admit 	new evidence
concerning 	the 	credibility of 	a District 	witness. 	In 	addition,
by agreement of 	the parties, 	the ALJ 	took 	official 	notice of
that portion of 	the 	record 	in Case No. 	SF-CE-469 	relating 	to
standardization of paraprofessional 	hours.
On December 	29, 	1982, 	the Board's decision 	issued 	in Case
No. 	SF-CE-408, 	Oakland Unified School District, PERB Decision
No. 	275, 	dismissing 	all charges against 	the District. 	The
Board 	reversed 	the 	administrative 	law 	judge's 	(ALJ) 	finding
that 	the District had violated subsections 3543.5(a), 	(b) 	and
(c) 	of 	the Educational Employment Relations Act 	(EERA)1 by
failing 	or 	refusing 	to 	negotiate 	in good 	faith 	about 	a
four-hour 	workday 	for 	paraprofessional 	positions 	and 	personnel
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
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selection 	criteria. 	Although 	the 	ALJ 	also 	found 	that 	the
District 	had 	failed 	to 	negotiate 	in 	good 	faith 	about 	elements
of 	the Association's 	in-service 	training 	policy, 	that 	finding
was 	not 	excepted 	to, 	and 	the Board 	made 	no 	finding 	about 	that
issue.
REQUEST 	FOR 	RECONSIDERATION
The 	Association 	requests 	reconsideration 	of 	the 	Board's
decision 	in Oakland, 	supra, 	on 	the 	ground 	that 	the Board 	failed
to 	consider 	material 	aspects 	of 	the 	record 	in SF-CE-469,
pursuant 	to 	a 	stipulation 	of 	the 	parties. 	The 	Association 	also
contends 	that 	the Board 	erred 	in 	its 	failure 	to 	consider
portions 	of 	the 	ALJ's 	decision 	regarding 	in-service 	training.
The 	District 	responds 	that 	the 	Association 	has 	not 	alleged
"extraordinary 	circumstances" 	within 	the 	meaning 	of PERB's
et 	seq. 	All 	statutory 	references 	herein 	are 	to 	the 	Government
Code 	unless 	otherwise 	indicated.
Section 	3543.5 	provides 	that 	it 	shall 	be 	unlawful 	for 	a
public 	school 	employer 	to:
(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.
(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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regulation 	specifying 	the 	criteria 	for 	reconsideration2 	and,
in addition, 	it contends 	that 	the Board did 	not err 	in 	the
underlying 	Decision.
DISCUSSION
Standardization 	Policy
The ALJ 	found 	that 	the 	District's 	failure 	to 	inform OSEA of
its 	existing 	standardization 	policy 	inhibited 	the 	effectiveness
of 	negotiations 	between 	the 	parties 	during 	1979 	and 	was
evidence 	of 	its 	failure 	to bargain 	in good 	faith. 	The Board
disagreed, 	finding 	neither 	a deliberate 	withholding 	of 	relevant
information 	from 	the Association 	nor 	a 	duty 	on 	the 	District's
part 	to provide 	information 	in 	the 	absence 	of a 	request.
We have 	reviewed 	the 	record 	in SF-CE-469, 	and we 	find 	that
there 	is 	nothing 	therein which 	contradicts 	or 	substantially
adds 	to our 	findings 	in 	this case. 	Since we do not 	find 	that
substantial, 	relevant evidence was overlooked 	in Case
2PERB's 	regulations 	are 	codified 	at California
Administrative Code, 	title 8, 	section 31001 et 	seq.
PERB 	rule 32410(a) 	provides 	that:
Any party 	to 	a 	decision of 	the Board 	itself
may, 	because 	of extraordinary circumstances,
file 	a 	request 	to 	reconsider 	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.
A
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Nos. 	SF-CE-408 	or SF-CE-469 	which would compel us 	to 	reach 	a
different 	result 	in this case, 	we 	conclude 	that no
extraordinary 	circumstances 	exist 	which 	justify 	granting 	OSEA's
request 	for 	reconsideration 	of 	the 	standardization 	policy 	issue.
In-Service 	Training
The Association 	also 	contends 	that 	the Board 	erred 	by
failing 	to consider 	that portion of 	the ALJ's 	decision
concerning 	in-service 	training 	in 	reaching 	its 	conclusion 	that
the District 	had 	not 	failed 	to 	negotiate 	in good 	faith.
The ALJ 	found 	that 	a 	required 	minimum of 	in-service
training 	was 	nonnegotiable 	because 	it 	was 	required 	by 	state 	and
federal 	guidelines 	governing 	the 	funding 	for
paraprofessionals. 	He 	found 	the 	rest of 	the proposal
negotiable, 	however, 	and 	found 	that 	the District's 	refusal 	to
negotiate 	about 	the 	subject was 	a violation of EERA 	subsections
3543.5 (a), (b) and (c) .
The District did 	not 	except 	to 	this 	finding. 	The Board
noted 	in 	a 	footnote 	in 	the 	underlying 	decision 	that 	this 	issue
was not before 	it on exceptions. 	However, 	it did not 	then
include 	the 	finding of violation 	in 	its 	order.
We 	find 	that 	this 	omission was 	an 	error 	and 	that 	that
portion 	of 	the ALJ's 	decision 	and 	order 	should 	have 	been
affirmed 	pro 	forma. 	We 	shall modify our 	Order 	accordingly.
ORDER
Upon 	the 	foregoing 	findings of 	fact 	and 	conclusions 	of 	law
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and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to 	subsection
3541.5(c), 	it 	is 	found 	that 	the Oakland Unified School District
has violated Government Code subsections 3543.5(a), 	(b) 	and 	(c).
It 	is 	hereby ORDERED 	that 	the 	Oakland 	Unified 	School
District, 	its 	governing 	board 	and 	its 	representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in good
faith 	with 	the 	exclusive 	representative 	regarding 	in-service
training 	(except 	for 	a 	required 	minimum 	amount).
(2) 	Interfering 	with 	employees 	because of 	their
exercise 	of 	rights 	guaranteed 	by 	the 	Educational Employment
Relations Act, 	including 	the 	right 	to 	select 	an 	exclusive
representative 	to 	negotiate 	on 	their 	behalf; 	and
(3) 	Denying 	to 	the 	Oakland 	School Employees
Association 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations Act, 	including 	the 	right 	to 	represent 	its 	members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
(1) 	Upon 	request, 	meet 	and 	negotiate with 	the Oakland
School Employees Association within 	thirty-five 	(35) 	days 	after
issuance 	of 	this 	Decision 	regarding 	in-service 	training 	(except
for 	a 	required minimum amount).
(2) 	Within 	thirty-five 	(35) 	days 	following 	the 	date of
service of 	this 	Decision, 	post 	at 	all 	work 	locations 	where
notices 	to 	employees 	customarily 	are 	placed, 	copies 	of 	the
Notice 	attached 	as 	an Appendix 	hereto, 	signed 	by 	an 	authorized
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agent of 	the 	employer. 	Such posting 	shall be maintained 	for 	a
period of 30 	consecutive workdays. 	Reasonable 	steps 	shall 	be
taken 	to 	ensure 	that 	this Notice 	is 	not 	reduced 	in 	size,
defaced, 	altered or 	covered 	by 	any material.
(3) 	Written notification of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall 	be made 	to 	the 	San Francisco
Regional 	Director 	of 	the Public Employment 	Relations Board 	in
accordance 	with 	her 	instructions.
Chairperson Hesse 	and 	Members 	Jaeger 	and 	Morgenstern 	joined 	in
this 	Decision.
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APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
After 	a hearing 	in unfair practice case No. 	SF-CE-408, 	in
which 	all parties had 	the 	right 	to participate, 	it has been
found 	that 	the Oakland Unified 	School 	District 	has 	violated
subsections 3543.5(a), 	(b), and 	(c) 	of the Educational
Employment Relations Act. 	As 	a 	result of 	this 	conduct, 	we 	have
been 	ordered 	to post 	this Notice 	and 	we will:
A. 	CEASE 	AND DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in 	good
faith 	with 	the 	Oakland 	School Employees Association 	concerning
in-service 	training 	(except 	for 	a 	required minimum amount).
2. 	Denying 	the 	Oakland 	School Employees Association the
right 	to 	represent 	its 	members 	by 	failing 	and 	refusing 	to meet
and 	negotiate 	in good 	faith.
3. 	Interfering 	with 	employees 	in 	the 	exercise 	of
rights 	guaranteed 	to 	them by 	the 	Educational Employment
Relations Act 	by 	failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith.
B. 	TAKE 	THE 	FOLLOWING ACTIONS 	DESIGNED TO EFFECTUATE 	THE
POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	ACT:
1. 	Upon 	request, 	meet and 	negotiate with 	the Oakland
School 	Employees 	Association 	regarding 	in-service 	training
(except 	for 	a 	required minimum amount).
Dated: 	Oakland 	Unified 	School 	District
By Authorized 	Representative
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF POSTING AND MUST NOT
BE DEFACED, 	ALTERED, 	REDUCED 	IN SIZE OR COVERED BY ANY OTHER
MATERIAL.