Modesto City Schools and High School District (PERB 0414EA)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
MODESTO 	TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
MODESTO CITY 	SCHOOLS AND 	HIGH
SCHOOL DISTRICT,
Respondent.
Case No. 	S-CE-485
Request 	for 	Reconsideration
PERB Decision No. 	414
PERB Decision No. 	414a
January 16, 	1985
. .
. . . . ' . ."#4'
MODESTO 	TEACHERS ASSOCIATION,
CTA/NEA,
Charging Party, APPELLANT,
v.
MODESTO 	CITY 	SCHOOLS AND 	HIGH
SCHOOL DISTRICT,
Respondent.
and
Case No. 	S-CE-485
Request 	for 	Reconsideration
PERB Order No. Ad-143
PERB Order No. Ad-143a
January 16, 	1985
Appearances; 	Kenneth W. 	Burt 	II, Attorney for Modesto Teachers
Association, CTA/NEA; Breon, Galgani, Godino & O'Donnell by
Mark W. 	Goodson for 	Modesto City Schools 	and High School District.
Before Tovar, 	Jaeger and Burt, Members.
DECISION
BURT, 	Member: 	The Public Employment Relations Board 	(PERB
or Board), 	having duly considered the 	request for
reconsideration 	filed by 	the Modesto 	Teachers Association,
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CTA/NEA (Association) pursuant to Board Regulation 3 2410,1/
hereby denies 	that 	request.
DISCUSSION
On 	reconsideration, 	the Association argues 	that 	the Board
should defer 	to 	findings 	in 	the 	arbitrator's 	decision 	issued 	in
May 	1984, 	allegedly 	resolving 	the 	same 	issues 	addressed 	by 	the
Board 	in its decision here. 	In 	so urging, 	the Association
raises 	a deferral 	issue 	that 	the Modesto City Schools 	and High
School District 	(District) 	sought 	to 	raise 	initially.
The parties' 	negotiated agreement, 	submitted as an exhibit
in this case, 	contains provision for 	a grievance procedure
including 	advisory 	arbitration. 	The 	superintendent may 	appeal
1/PERB Regulations are codified at California
Administrative Code, 	title 	8, 	secton 31001 et seq. 	PERB
regulation 32410(a) 	provides:
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. 	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 	upon. 	Service 	and proof 	of
service 	of 	the 	request pursuant 	to 	Section
3 2140 	are required. 	The grounds 	for
requesting 	reconsideration 	are 	limited 	to
claims 	that 	the decision of 	the Board 	itself
contains prejudical 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.
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the decision of 	the 	arbitrator 	to 	the board 	of 	education, 	and
the decision of 	that board 	is 	final.
When 	these 	charges were 	originally 	filed, 	the 	District
sought 	by way 	of 	letter 	to 	the 	administrative 	law judge 	(ALJ)
to 	have 	these 	proceedings deferred 	until 	the 	advisory
arbitration process was complete.
The ALJ 	responded, 	by 	letter, 	correctly citing Board 	law to
the 	effect 	that 	the 	Board would defer 	only 	to 	a procedure
culminating 	in binding 	arbitration, 	or 	in 	response 	to a motion
from both of 	the parties. 	Since 	there was 	no evidence 	that 	the
Association agreed 	to defer, 	the ALJ concluded 	that 	the 	case
should 	proceed.
The Association 	here 	tries 	to convert 	the 	arbitration 	in
question 	to 	binding 	arbitration 	by 	attaching 	an 	agreement
signed 	by 	the 	District 	in which 	it 	agreed 	to accept 	the
arbitrator's 	award. 	It 	is clear 	from the agreement, 	however,
that 	the District's 	acceptance goes 	to 	this particular 	award
only and 	is 	in no 	sense 	a waiver 	or 	settlement of 	the 	unfair
practice 	proceeding.
Not 	only 	could 	the Association 	have 	joined 	with 	the
District 	in 	its 	initial 	request to defer 	and did not do 	so, 	but
it could 	also 	have 	withdrawn 	its charges with PERB 	after 	the
arbitrator's decision 	issued. 	The arbitrator, 	like 	the ALJ,
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noting 	that 	the 	District's 	allegedly 	unlawful 	change 	actually
resulted 	in more minutes 	of duty-free 	lunch on an 	annual 	basis,
refused 	to award any back pay. 	Presumably, 	the Association
chose 	to 	continue 	the proceeding 	before PERB 	in 	the 	hope 	that
the Board would 	award back pay. 	Having 	lost 	the 	entire 	case
before PERB, 	the Association now argues 	that 	the Board 	should
defer 	to 	an 	arbitration 	award which 	it 	had 	ample 	opportunity 	to
accept as 	final but 	refused to do 	so. 	We 	see no 	reason to
defer 	to 	the 	arbitrator's decision, 	nor 	are we 	in any way bound
by particular 	findings, 	and we decline 	to 	reconsider 	on 	that
ground.
The Association's 	remaining 	grounds 	for 	reconsideration
fail 	to 	demonstrate 	the 	"extraordinary circumstances" 	required
by PERB's 	regulations, 	and are 	therefore 	also denied.
ORDER
For 	the 	reasons 	set forth above, 	the Modesto Teachers
Association, 	CTA/NEA's 	requests 	for 	reconsideration of 	PERB
Decision No. 	414 	and PERB Order No. Ad-143 	are hereby DENIED.
Members 	Tovar 	and Jaeger 	joined 	in 	this 	Decision.
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