Elk Grove Unified School District (PERB 0856EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DR. 	KATHRYN JAEGER AND THE 	ELK
GROVE 	PSYCHOLOGISTS AND 	SOCIAL
WORKERS ASSOCIATION,
Charging Parties,
v.
ELK GROVE 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1347
Request 	for Reconsideration
PERB Decision No. 	856
PERB Decision No. 	856a
March 	6, 	1991
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Appearance: 	Mullen, 	Sullivan & Newton by Craig Rasmussen,
Attorney, 	for Dr. 	Kathryn Jaeger and the Elk Grove Psychologists
and Social Workers Association.
Before Hesse, 	Chairperson; 	Shank and Cunningham, 	Members.
DECISION
SHANK, 	Member: 	Dr. 	Kathryn Jaeger 	(Jaeger or Appellant) 	and
the 	Elk Grove 	Psychologists 	and 	Social 	Workers 	Association
(Association) 	filed a request 	for reconsideration, 	pursuant to
California Code of Regulations, 	Title 8, 	section 32410, 	of the
Public 	Employment 	Relations 	Board 	(PERB or Board) 	decision and
order dismissing the underlying unfair practice 	charge. 	In that
decision, 	the 	Board 	found that Jaeger had no 	standing to 	appeal
the 	regional 	attorney's 	dismissal 	of 	that portion of 	the 	unfair
practice 	charge 	alleging 	that 	the 	Elk Grove 	Unified 	School
District 	(District) 	violated section 3543.5(c) 	of the Educational
Employment Relations Act 	(EERA or Act).1 In reaching its
1 EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code.
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conclusion, 	the Board noted that the Association, 	the only
charging party with 	standing 	to 	allege 	a 	violation 	of 	section
3543.5(c), 	had not 	joined in the appeal. 	The dissent took the
position that despite 	the 	fact 	the Association had 	not 	joined 	in
the appeal, 	once an appeal 	is before the Board, 	the Board may
examine all 	issues 	in the charge, 	de novo, 	to ascertain whether
the allegations 	stated any prima 	facie violation of 	the Act. 	The
dissent 	then proceeded to 	find that 	the 	unfair practice 	charge
stated a prima 	facie violation of 	section 3543.5(c).
Taking 	its 	cue 	from the dissent, 	the Association now alleges
it 	has 	an 	"interest 	in the determination of 	its 	section 	3543.5(c)
claim," 	and that 	it was 	"the 	intent and purpose 	of 	[the
Association] 	to 	join in the appeal 	and 	seek a determination by
PERB of 	its 	section 	3543.5(c) 	violation charges." 	The Association
argues 	that the 	Board's 	"mistaken belief 	that 	the Association had
not 	joined 	in the appeal" 	constitutes 	an 	"extraordinary
circumstance" 	and 	"prejudicial 	error of 	fact" 	justifying the
Board's 	reconsideration of 	its 	decision pursuant 	to 	PERB
Regulation 32410.2
22PERB Regulation 32410, 	states, 	in pertinent part, 	that;
Any party 	to 	a 	decision to 	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. 	. 	. 	.
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An examination of the appeal 	itself, 	however, 	reveals 	that
the Association, 	while 	it may have 	intended to appeal, 	did not do
so. 	Nowhere 	in the appeal 	is 	the Association referred to as 	an
appellant. 	The attorneys 	are 	identified as 	"attorneys 	for
plaintiff" 	in the 	singular, 	and the caption identifies 	Jaeger as
the only plaintiff. 	In fact, 	the appellant, 	Jaeger, 	is referred
to 	as 	"plaintiff" 	in the 	singular throughout the appeal.
Nowhere 	in the 	introductory paragraph of 	the 	appeal 	is 	there
any mention of 	the Association or 	its 	claim that 	the 	3543.5(c)
charge was 	erroneously dismissed. 	In fact, 	the 	introductory
paragraph of the appeal 	states, 	in its 	entirety:
The plaintiff, 	DR. 	KATHRYN JAEGER, 	appeals the
June 6, 	1990, 	decision of the Public
Employment 	Relations 	Board not 	to 	issue 	a
complaint against defendant, 	ELK GROVE UNIFIED
SCHOOL 	DISTRICT 	("EGUSD") 	for 	violation 	of
3543.5 	of 	the Government Code 	("EERA"). 	The
decision alleged 	that 	the plaintiff 	had 	not
pled 	sufficient 	facts 	to 	constitute 	a prima
facie case under the 	statute. 	The plaintiff
disputes 	this 	contention and reiterates 	such
facts 	as 	follows 	to demonstrate that as a
result of 	her 	exercise of her rights 	under the
EERA, 	the School District unilaterally,
arbitrarily, 	and without 	justification reduced
her 	step placement 	standing as 	a 	reprisal 	for
her actions and, 	further, 	unilaterally
discriminated 	against 	her by 	reducing 	her 	in
step placement.
Thus, 	the appeal 	is premised 	solely on the theory that 	the
District violated EERA 	section 	3543.5(a) 	when 	it reduced Jaeger's
step placement, 	thereby discriminating against her, 	as a reprisal
for her 	engaging 	in protected activity. 	The references 	to 	the
District's 	conduct vis-a-vis 	the Association, 	contained 	in the
appeal, 	appear merely as background to Jaeger's 	claim.
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The declaration filed by Robbe Henley 	(Henley), 	president of
the Association for the year 	1989-90, 	is 	insufficient to establish
that 	the 	omission of 	the Association's 	name 	from the 	appeal was 	a
mere procedural oversight. 	In the declaration, 	Henley merely
states 	that 	the Association decided to appeal 	the decision to
dismiss 	the 	section 3543.5(c) 	claim and that 	it was 	never the
Association's 	intent 	or desire 	to 	abandon the 	section 	3543.5(c)
violation. 	Nowhere 	in the declaration does 	Henley indicate what
steps were taken by the Association to effectuate an appeal, 	nor
is 	there 	any 	evidence that 	the 	attorneys 	representing 	Jaeger were
instructed 	to 	appeal 	the dismissal 	on behalf 	of 	both Jaeger 	and
the Association.
As 	the 	Board 	finds 	the 	record 	insufficient 	to 	establish 	that
the Association was 	a party to the appeal, 	the Board concludes
that 	no 	extraordinary 	circumstances 	nor prejudicial 	errors 	of 	fact
exist 	to 	justify 	reconsideration.
ORDER
The 	request 	for reconsideration 	is 	hereby 	DENIED.
Member Cunningham 	joined 	in this 	Decision.
Chairperson Hesse's 	dissent begins 	on page 	5.
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Hesse, 	Chairperson, 	dissenting: 	For the reasons 	stated in
my dissent 	in Elk Grove 	Unified 	School 	District 	(1990) 	PERB
Decision No. 	856, 	I would grant Dr. 	Kathryn Jaeger 	(Jaeger) 	and
the 	Elk Grove 	Psychologists 	and 	Social Workers 	Association's
(Association) 	request for reconsideration. 	The amended unfair
practice 	charge was 	filed 	jointly by Jaeger and 	the Association.
Therefore, 	I 	find the allegations 	state a prima 	facie violation
of 	section 	3543.5(c) 	based on a unilateral 	change 	theory.
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