Oakland Unified School District (PERB 0818EA)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
OAKLAND 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1275
Request 	for 	Reconsideration
PERB Decision No. 	818
PERB Decision No. 	818a
September 	17, 	1990
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Appearances: 	Andrew Thomas Sinclair, 	Attorney, 	for Oakland
School Employees Association; 	Peter N. 	Hagberg, 	Attorney, 	for
Oakland 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This matter is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on a request by the Oakland
School 	Employees Association 	(Association) 	that the Board
reconsider 	its 	decision 	in Oakland 	Unified 	School 	District 	(1990)
PERB Decision No. 	818. 	In that decision, 	the Board held that 	the
Oakland Unified 	School 	District 	(District) 	did not violate 	its
duty to 	bargain 	in good 	faith when 	the 	District's 	governing board
passed 	a 	resolution 	requiring 	that 	nonvested 	forfeitures
accumulated 	in a 	supplemental 	annuity plan 	(Plan) 	be used 	to
reduce 	future 	District contributions. 	The 	Board 	found that 	the
resolution was 	consistent with the terms 	of the Plan, 	which was
incorporated by reference 	into 	the parties' 	collective bargaining
agreements.

In its 	request 	for reconsideration, 	the Association claims
that the Board erred by finding that: 	(1) 	the Plan was 	a money-
purchase plan, 	rather than a profit-sharing plan,1 (2) 	section
6.01 	of 	the 	Plan requires 	that 	administrative 	expenses 	be paid
out of employer contributions, 	and 	(3) 	the Association failed to
carry 	its 	burden of proof 	to 	show that 	the parties 	agreed that
nonvested 	forfeitures were 	to 	remain 	in the 	Plan.2 For the
reasons 	that 	follow, 	we deny the request 	for reconsideration.
DISCUSSION
The Association 	claims 	that 	the 	Board 	mischaracterized 	the
testimony of 	the parties' 	expert witnesses with regard to the tax
status 	of 	the 	Plan. 	The Association claims 	that 	the witnesses
both 	testified 	that 	the 	Plan 	could 	have 	changed 	from 	a 	money-
purchase plan to 	a profit-sharing plan 	if 	the parties 	had agreed
in 	1977 	that 	nonvested 	forfeitures 	were 	to remain 	in the 	Plan.
We 	do not 	agree 	that 	the Association's 	characterization of 	the
expert testimony 	is 	more 	accurate 	than that 	expressed 	in the
underlying decision. 	In any event, 	the Association's 	argument
1 In accordance with the 	Internal 	Revenue Code 	and 	its
implementing regulations, 	if the Plan is a money-purchase plan,
nonvested 	forfeitures 	must be used to 	reduce 	future 	employer
contributions.
The Association also 	claims 	to rely 	"on all 	arguments 	set
forth 	in 	its papers 	already on 	file." 	Assuming that 	the
Association 	is 	asking the 	Board 	to 	re-examine the 	arguments 	made
to 	the Board prior to 	the 	issuance of 	the underlying decision, 	we
decline 	to do 	so. 	Arguments previously considered and rejected
do 	not constitute proper grounds 	for reconsideration. 	(Morgan
-Hill Unified School District 	(1986) 	PERB Decision No. 	554a, 	p. 	9;
Rio 	Hondo Community College District 	(1983) 	PERB Decision No.
279a, 	pp. 	3-4.)
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fails 	because 	it did not prove that 	the parties 	did agree 	to 	any
change 	in the 	Plan that 	could have 	converted 	it to 	a profit-
sharing plan. 	Thus, 	it is more appropriate to focus on the
Association's 	claim 	that 	the 	Board 	failed 	to properly 	consider
evidence that the parties did, 	in fact, 	agree 	in 	1977 that
nonvested 	forfeitures were 	to remain 	in the 	Plan.
The Association relies 	on the 	testimony of 	two 	of 	its
witnesses 	who 	claimed that 	the 	District's 	position 	in
negotiations 	was 	that the 	forfeitures would remain 	in the 	Plan.
The 	Board 	considered 	that 	testimony, 	along with documentary
evidence 	showing that, 	while the District at one time 	expressed
such a position, 	a 	later District proposal 	called 	for the
forfeitures 	to revert to the District. 	Neither proposal was 	made
a part of the 	collective bargaining agreement. 	Therefore, 	the
Board 	concluded 	that 	the 	evidence was 	insufficient 	to 	show that
the parties 	had agreed to a 	change 	in the 	Plan.
The Association 	acknowledges 	that 	the 	agreement 	eventually
reached 	contained 	no 	provision 	on 	the 	disposition 	of 	nonvested
forfeitures, 	but argues 	that this 	indicates 	that the District's
later proposal was 	rejected by the Association. 	This 	argument
ignores 	the Board's 	finding, 	which the Association does 	not
contest 	in its 	reconsideration request, 	that, 	prior to the 	1977
negotiations, 	the Plan was 	unquestionably a money-purchase plan.
Thus, 	it was 	the Association's burden to prove that the 	1977
negotiations 	resulted 	in an agreement 	to 	change 	the 	character of
the 	Plan. 	Evidence that 	the Association refused to 	accept 	a
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District proposal 	is 	insufficient to demonstrate a 	change.
Absent persuasive 	evidence 	that 	the District agreed to 	a 	change,
it 	must be 	concluded that the 	status 	quo prevailed.
Next, 	the Association claims 	the 	Board 	erred 	in 	stating 	that
the Association's 	claim, 	that 	the 	amounts 	assigned to 	employee
accounts 	could vary, 	is 	inconsistent with 	its position in an
earlier 	Board decision. 	In Oakland 	Unified 	School 	District
(1982) 	PERB Decision No. 	236, 	the Board found that the District
was 	obligated to 	contribute a 	fixed amount 	of 	eight percent per
year 	to 	the 	Plan and violated 	its 	duty 	to 	bargain by deferring
part 	of 	that 	contribution to the 	succeeding 	fiscal 	year. 	The
Association 	asserts 	that 	there was 	nothing 	inconsistent with 	its
earlier position that 	the 	District 	could 	not 	reduce 	the 	eight
percent 	contribution and 	its 	present position that 	the 	Plan was 	a
profit-sharing plan. 	The Association reasons 	that 	the 	eight
percent 	figure 	could be 	a minimum, 	to be 	supplemented by 	the
nonvested 	forfeitures.
Assuming 	that 	such 	a profit-sharing plan would be 	legally
permissible, 	the Association's 	claim of 	error on the part of 	the
Board is 	nonetheless 	misplaced. 	There 	is 	no indication that,
prior to 	the 	instant 	case, 	the Association ever claimed that 	the
eight percent 	figure was 	a minimum, 	rather than a 	fixed amount.
In addition, 	neither the 	language of 	the 	collective bargaining
agreements3 nor 	the 	evidence 	of 	bargaining history 	support 	the
3The 	language 	of 	the 	relevant 	agreements which 	governs 	the
contribution rate states, 	in pertinent part:
A	
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conclusion that 	the parties 	ever 	agreed 	the 	stated 	contribution
rate was 	a minimum, 	to be 	supplemented by nonvested 	forfeitures.
The 	District agrees 	to 	continue 	its
contributions 	to 	the Annuity Program 	for
employees 	covered by 	this 	agreement 	at 	the
rate of 	an amount equal 	to 	8% 	of the
employee's 	salary.
Lastly, 	the Association questions 	the Board's 	authority to
interpret the terms of the Plan, 	specifically, 	section 6.01,
which the 	Board 	construed 	as 	mandating that 	administrative 	costs
be paid out 	of 	the District's 	contributions. 	The Association
asserts 	that 	the 	trustees 	of 	the 	Plan are 	the definitive
interpreters 	of the Plan, 	and requests 	that the record be
reopened 	to 	accept 	a declaration of 	an attorney 	for 	the 	trustees
who 	claims 	the 	trustees 	do 	not 	interpret 	section 	6.01 	to 	require
that 	administrative 	costs 	be 	paid 	exclusively 	from 	District
contributions.
The Association's 	claim that 	the 	Board 	exceeded 	its
authority by 	interpreting the 	terms 	of 	the Plan 	is 	simply
incorrect. 	The 	Plan was 	incorporated by reference 	into 	the
parties' 	collective bargaining agreements and was, 	therefore,
part 	of 	the 	negotiated 	status 	quo which 	the 	District 	could 	not
change unilaterally. 	The Association has 	charged 	that 	the
District 	committed 	such 	an unlawful 	unilateral 	change 	by 	altering
the terms of the Plan and has, 	therefore, 	placed the 	issue before
the Board. 	The 	Board has 	the 	authority to 	interpret 	contracts 	in
order to determine 	if an unfair practice has 	been committed.
(Grant Joint Union High School 	District 	(1982) 	PERB Decision No.
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196, 	pp. 	7-9; 	Inglewood Unified School District 	(1986) 	PERB
Decision No. 	593, 	pp. 	3-4.) 	By interpreting relevant provisions
of 	the Plan, 	the Board has 	merely 	carried out 	the duty placed on
it 	by the Association's 	filing of 	the unfair practice 	charge.
The Association 	also 	argues 	that 	the 	Board 	should 	give
deference to the 	interpretation of 	the trustees 	of 	the Plan, 	as
evidenced by 	the declaration the Association 	seeks 	to 	have 	the
Board consider. 	PERB Regulation 32410, 	subdivision 	(a)4
provides, 	in pertinent part:
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.
(Emphasis 	added.)
We 	find 	that 	the declaration offered by the Association does
not 	meet 	the 	newly-discovered 	evidence 	standard 	set 	out 	above.
The 	terms 	of 	the Plan were placed 	in 	issue by 	the 	nature of 	the
Association's 	charge. 	The propriety of using nonvested
forfeitures 	to pay administrative 	expenses was 	also 	an 	issue
intrinsic 	to this dispute, 	as 	reflected 	in the discussion of 	the
issue 	in 	the proposed decision 	issued by 	a 	PERB 	administrative
law judge. 	Furthermore, 	as the party bearing the burden of
proof, 	it was 	the obligation of 	the Association to provide
evidence 	that 	the 	District's 	actions were 	inconsistent with 	the
terms 	of 	the Plan. 	The proper 	interpretation of 	section 	6.01 	of
4PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et seq.
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the 	Plan would obviously have been relevant 	to 	such 	a 	showing.
As 	there 	is 	no 	indication that witnesses 	or documentary 	evidence
to 	support 	the Association's 	interpretation were 	unavailable 	or
could not have 	been discovered with 	the 	exercise 	of 	reasonable
diligence at the time of the hearing, 	there is 	no basis 	for
concluding 	that 	the 	evidence 	the Association now proffers 	is
"newly 	discovered."
ORDER
For the reasons 	explained above, 	the Association's 	request
for reconsideration of PERB Decision No. 	818 	is hereby DENIED.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
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