Fresno County Office of Education (PERB 1171E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRESNO 	COUNTY OFFICE 	EDUCATORS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
FRESNO COUNTY OFFICE OF EDUCATION,
Respondent.
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Case No. 	S-C-136
PERB Decision No. 	1171
September 30, 	1996
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Appearances: 	California Teachers Association by Diane Ross,
Attorney, 	for Fresno 	County Office 	Educators Association,
CTA/NEA; 	Stroup & de Goede by Raymond W. 	Dunne, 	Attorney, 	for
Fresno County Office 	of 	Education.
Before Garcia, 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case comes before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed
by the 	Fresno County Office 	of 	Education 	(County) 	and the 	Fresno
County Office 	Educators Association, 	CTA/NEA 	(Association) 	to
a hearing 	officer's 	proposed decision 	(attached) 	ordering 	the
County 	to 	comply with 	the 	Board's 	order 	in an 	earlier unfair
practice 	case. 	The 	Board 	finds 	the hearing officer's proposed
decision 	to be 	free 	of prejudicial 	error and therefore adopts
it 	as 	the decision of 	the Board itself, 	in accordance with the
following 	discussion.
BACKGROUND
In his proposed decision, 	the hearing 	officer decided 	two
issues:
1. 	Have the employees in question 	. 	. 	.
made 	reasonable 	efforts 	to mitigate

their damages 	of 	loss 	of 	pay and
benefits?
2. 	What 	interim earnings, 	if any, 	should be
credited 	against 	the 	front 	pay 	amount
due?
He 	applied the National 	Labor Relations 	Board 	(NLRB) 	standard
with regard to each of 	the 	employees 	in question, 	and 	found
that 	the 	County had not met 	its burden of 	showing 	that 	the
former employees 	failed 	to make 	reasonable 	efforts 	to 	obtain
employment.1 Since 	any uncertainty 	is 	to be 	resolved against 	the
employer under 	the NLRB 	standard, 	the 	hearing 	officer 	ordered 	the
County 	to 	compensate 	the 	former employees 	at 	a 	given 	rate 	for a
given 	time period.
COUNTY'S 	EXCEPTIONS
The 	County 	excepted 	to 	the 	proposed decision 	on numerous
grounds. 	Its 	chief argument 	is 	that 	PERB 	should not adopt NLRB
precedent 	in this area, 	since 	the County has no opportunity to
1Under NLRB precedent, 	in order to receive any offset
against 	the amount 	of back pay due, 	the employer has 	the burden
of 	establishing 	that 	employees 	failed 	to mitigate 	their damages.
(NLRB v. 	IBEW Local Union 112 	(9th Cir. 	1993) 	992 	F.2d 990, 	993
[143 	LRRM 2256]; 	Kawasaki Motors v. 	NLRB 	(9th Cir. 	1988) 	850 	F.2d
524, 	527-528 	[128 LRRM 2913] 	(Kawasaki).) 	The employer must
establish this burden 	(NLRB v. 	Brown and Root 	Inc. 	(8th Cir.
1963) 	311 F.2d 447, 	454 	[52 LRRM 2115]; 	NLRB v. 	Madison Courier.
Inc. 	(D.C. 	Cir. 	1972) 	472 	F.2d 1307, 	1318 	[80 LRRM 3377]), 	and
any uncertainty 	is 	resolved against 	the 	employer 	(J.H. 	Rutter-Rex
Mfg. 	Co. 	(1971) 	194 NLRB 19, 	24 	[78 LRRM 1640]).
In establishing a 	failure 	to mitigate, 	the 	employer must
demonstrate 	that 	the 	claimant 	failed 	to make 	efforts 	"consistent
with 	the 	inclination 	to work and 	to be 	self-supporting."
(Kawasaki, 	p. 	527; 	Sioux Falls Stock Yards Co. 	(1978) 	236 NLRB
543, 	551 	[99 	LRRM 1316].) 	Claimants are not expected to seek a
job more 	onerous 	than the 	one 	from which 	they were 	removed, 	but
rather are 	expected 	to 	seek a 	substantially equivalent 	job.
(Kawasaki, 	p. 	528.) 	The claimant can still prevail 	if the record
shows 	reasonable 	efforts 	to obtain interim employment. 	(Id. 	at
527.)
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conduct pretrial 	discovery; 	alternately, 	PERB 	should conduct 	its
own investigation as 	the NLRB does. 	Unless 	that 	occurs, 	the
County argues 	that 	adopting 	the NLRB 	standard places 	an unfair
burden on 	it, 	since 	it has 	no reliable 	source 	of 	information
regarding 	former employees' 	mitigation efforts. 	The County
asserts 	that 	it 	is 	not an acceptable option to 	call 	the 	laid-off
employees 	as 	adverse 	witnesses 	via 	the 	subpoena process 	during
the hearing, 	because:
. 	. 	. 	few experienced litigators are willing
to 	gamble with 	calling an adverse witness
without 	prior 	discovery 	or 	other 	independent
information about 	the 	likely 	testimony
. 	. 	. 	. 	Like driving with your eyes closed,
you 	can 	only end up 	running 	into 	something
which will 	hurt.
ASSOCIATION'S 	RESPONSE 	TO 	COUNTY'S 	EXCEPTIONS
In response, 	the Association rejects 	the 	County's arguments
and urges 	the 	Board 	to uphold 	the 	hearing 	officer's 	decision.
The Association 	counters 	that 	the NLRB 	standard 	is 	appropriate,
even though PERB does 	not 	have 	the 	same 	type 	of 	discovery
procedures as 	the NLRB, 	since parties 	can use 	PERB procedures
to 	obtain 	necessary 	information.
DISCUSSION
Burden of 	Proof
A main 	issue 	raised by 	the 	County 	in 	its 	exceptions 	is
whether 	it 	is 	appropriate 	for PERB 	to adopt 	the NLRB burden of
proof 	in 	the mitigation context. 	We agree with the 	hearing
officer's 	adoption of 	that 	burden because 	it 	is 	consistent with
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well-established principles 	of 	California 	contract 	law and
employment 	law.
For example, 	California courts have held that when a
breach of 	contract 	occurs, 	the 	injured party is 	required to do
everything 	reasonably possible 	to mitigate 	his 	own 	loss 	and 	thus
reduce 	the damages 	for which the other party is 	liable. 	(See
Johnson v. 	Comptoir 	Franco-Beige 	d'Exportation 	des 	Tubes 	d'Acier
et al. 	(1955) 	135 Cal.App.2d 683, 	689 	[288 P.2d 151]; 	Sackett v.
Spindler 	(1967) 	248 Cal.App.2d 220, 	238 	[56 Cal.Rptr. 	435];
Spurgeon v. 	Drumheller 	(1985) 	174 	Cal.App.3d 659, 	665
[220 Cal.Rptr. 	195]; 	see also 1 Witkin, 	Contracts 	(9th ed. 	1987)
sec. 	857, 	pp. 	773-774. )2 The amount of loss that the injured
party 	reasonably 	could 	have 	avoided by mitigating 	is 	subtracted
from the 	amount 	that 	would 	otherwise 	have 	been 	recoverable 	as
damages. 	(Id. 	at 	774.) 	Although there 	is no recovery for
avoidable 	loss, 	the 	injured party need not 	engage 	in 	impractical
or unreasonable efforts 	to mitigate damages. 	(Id. 	at 	774-775.)
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Accordingly, 	an employee may recover as 	damages 	the amount
he would have 	received under the 	contract 	less 	the amount 	he
earned or might have earned from other employment; 	however, 	the
employee 	does 	not 	have 	to accept work of 	a different 	character
2This 	duty 	to mitigate 	has 	been expressly applied 	to
wrongfully discharged public 	employees 	as 	well. 	(California
School 	Employees Assn. 	v. 	Personnel 	Commission 	(1973)
30 Cal.App.3d 241, 	249 	[106 Cal.Rptr. 	283]; 	Carroll v. 	Civil
Service Com. 	(1973) 	31 Cal.App.3d 561, 	564 	[107 Cal.Rptr. 	557].)
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from that 	covered by 	the 	contract.3 As 	in 	the 	NLRB 	cases 	relied
upon by 	the 	hearing 	officer, 	California 	courts 	require 	the
employer who 	seeks 	a 	reduction 	in damages 	by 	reason of 	other
employment 	opportunities 	to prove 	that 	the 	other employment
was 	comparable, 	or substantially similar, 	to that 	of which the
employee 	has been deprived. 	(Parker v. 	Twentieth Century-Fox
Film Corp. 	(1970) 	3 Cal.3d 176, 	182 	[89 Cal.Rptr. 	73 7 ] ; 	for other
citations see 1 Witkin, 	Contracts, 	supra. 	p. 	776.)
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Although 	the 	issue 	presented by 	this 	compliance 	case 	is 	one
of 	first 	impression at 	PERB, 	the 	cases 	cited demonstrate 	that 	the
underlying 	legal 	principles 	should be well 	known 	to 	experienced
practitioners 	in California. 	Furthermore, 	it 	is appropriate to
apply those principles here, 	since 	the 	issue of proving whether
mitigation has 	occurred 	is 	the 	same 	in 	civil 	breach of 	employment
contract 	cases 	as 	in unfair practice 	cases. 	In both settings,
the goal 	is 	the 	same: 	to make 	the 	injured party whole by
awarding 	the 	amount 	of 	compensation 	to which the 	employee 	would
have been entitled 	for the 	unexpired period 	of 	the 	contract,
recognizing 	that 	the 	employee's 	actual 	damage 	is 	the 	amount 	the
employee 	is 	out 	of pocket by reason of 	the wrongful 	discharge 	or
layoff.4 Therefore, 	we 	reject 	the County's 	contention that 	it 	is
unfair to adopt 	the NLRB burden of proof.
3See 	22 	A.L.R.3d 	1057 	for an overview of 	state 	court 	cases
discussing 	reasonable 	alternative 	employment 	for 	discharged
teachers.
4See 1 Witkin, 	Contracts, 	supra, 	section 861 at supplemental
page 264, 	discussing the 	rationale 	for the mitigation rule.
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Discovery 	Procedures
Another 	issue 	raised by 	the 	exceptions 	is 	whether 	PERB's
discovery procedures 	provide 	the 	County with a 	fair 	opportunity
to prove 	its 	case at 	the 	compliance 	stage. 	The 	County seems 	to
argue 	that 	if 	PERB 	had the 	same prehearing discovery procedures
as 	the NLRB, 	all 	its problems would go away. 	However, 	the Board
is 	not persuaded that 	the differences 	in procedure 	caused the
County's 	present predicament. 	Although we will 	not 	speculate 	on
what 	the 	outcome would have been 	if 	it 	had used other 	tactics,
numerous 	other methods were 	available 	to 	the 	County to procure
information.
It 	is 	often difficult 	to obtain 	information 	from an
adverse party. 	However, 	as experienced litigators, 	the County's
attorneys 	are 	no 	doubt 	familiar with 	the 	task 	facing 	a party
who has 	the burden of proof. 	There are many ways 	to gather
information 	for a 	PERB hearing; 	the 	County's 	attorneys 	either
were 	not 	aware 	of 	them or chose not 	to use 	them.
For example, 	PERB regulations5 provide parties with numerous
ways 	of 	obtaining 	information, 	which may be used at various
stages 	of 	the process. 	These 	include 	PERB Regulation 32180
(right to call, 	examine and cross-examine witnesses); 	PERB
Regulation 32176 	(oral 	evidence 	to be 	taken under oath); 	PERB
Regulation 32205 	(right 	to request 	continuance); 	PERB Regulation
32206 	(right 	to 	request production of 	statement made by witness);
5PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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and 	PERB 	Regulation 	32230 	(right 	to 	request 	witness's 	testimony
be 	stricken 	if witness 	refuses 	to answer question).
Additionally, 	PERB 	Board 	agents 	have 	broad powers 	when
conducting 	a 	hearing. 	PERB 	Regulation 	32170 	provides 	the
following 	opportunities 	for parties 	to 	request 	or 	obtain 	needed
information:
The 	board 	agent 	conducting 	a 	hearing 	shall
have 	the powers 	and duties 	to:
(a) 	Inquire 	fully 	into all 	issues 	and 	obtain
a 	complete 	record 	upon 	which 	the 	decision 	can
be 	rendered;
(b) 	Authorize 	the 	taking of 	depositions;
(c) 	Issue 	subpoenas 	and 	rule upon petitions
to 	revoke 	subpoenas;
(d) 	Regulate 	the 	course 	and 	conduct 	of 	the
hearing, 	including 	the power 	to 	exclude 	a
witness 	from the 	hearing 	room;
(e) 	Hold 	conferences 	for 	the 	settlement 	or
simplification of 	issues;
(f) 	Rule on objections, 	motions and
questions 	of procedure;
(g) 	Administer oaths 	and affirmations;
(h) 	Take 	evidence 	and 	rule 	on 	the
admissibility 	of 	evidence;
(i) 	Examine witnesses 	for the purpose 	of
clarifying 	the 	facts 	and 	issues;
(j) 	Authorize 	the 	submission of briefs 	and
set 	the 	time 	for 	the 	filing 	thereof;
(k) 	Hear oral 	argument;
(1) 	Render and 	serve 	the 	proposed decision
on 	each 	party;
(m) 	Carry 	out 	the 	duties 	of 	administrative
law 	judge 	as 	provided 	or 	otherwise 	authorized
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by 	these 	regulations 	or by 	the 	applicable
Act.
In conclusion, 	the County had the means available 	to
gather information it needed. 	Since 	it did not do so, 	it 	cannot
now complain 	that 	it 	lacks 	the 	evidence 	it 	needed 	to meet 	its
burden of proof. 	Although 	the 	standard applied by 	the 	hearing
officer can be difficult 	for a 	former employer to prove, 	it 	is
appropriate 	and 	fair 	for 	that 	burden 	to be placed 	on 	the party
found 	to 	have 	committed an unfair 	labor practice. 	Given 	that
in adversarial 	proceedings 	before 	PERB 	one party always 	has 	the
burden of proof, 	and given that 	numerous 	discovery options 	are
available 	to parties 	in PERB proceedings, 	we hereby affirm the
hearing officer's adoption of 	the NLRB burden of proof. 	We 	also
find no 	error 	in his 	application of 	that 	standard 	to 	the 	evidence
presented.
ORDER
Pursuant 	to the Educational 	Employment Relations Act 	(Act),
Government Code section 3541.5(c), 	it 	is hereby ORDERED the
Fresno County Office of 	Education 	(County), 	its governing board
and 	its 	representatives 	shall 	take 	the 	following affirmative
actions 	designed to effectuate 	the policies 	of 	the Act:
1. 	Within ten 	(10) 	days 	of 	the date 	this decision is no
longer subject 	to reconsideration, 	make 	initial payments 	to Paula
Hart 	(Hart) 	at 	the rate of 	$4,071.60 per month; 	to Jean Walker
(Walker) 	at the rate of 	$3,840.3 0 per month; 	and to Rick Kirtland
(Kirtland) 	at 	the rate of 	$1,656.80 per month, 	plus 	interest 	for
each at 	the rate of 	seven 	(7) 	percent per annum, 	for the period
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covering 	February 24, 	1995 	and ending on the earliest 	of 	the
following: 	(a) 	the date 	that 	the County bargains 	to agreement
with 	the 	Fresno County Office 	Educators Association, 	CTA/NEA
(Association) 	regarding the 	effects 	of 	the decision to 	lay off
the affected employees; 	(b) 	the date that 	the parties 	exhaust 	the
statutory impasse procedure; 	or 	(c) 	the date on which it becomes
clear 	that 	the Association has 	failed to negotiate 	in good 	faith.
2. 	Following its initial payments, 	if none of the
conditions set forth in Paragraph 1(a), 	(b) 	or 	(c) 	have occurred,
the 	County shall 	continue 	to pay Hart, 	Walker and Kirtland at 	the
rates 	set 	forth 	in Paragraph 	1 	on a monthly basis until 	the
earliest 	of 	the 	following occurs: 	(a) 	the date that 	the County
bargains 	to 	agreement 	with 	the Association 	regarding 	the 	effects
of 	the decision to lay off 	the affected employees; 	(b) 	the date
that 	the parties 	exhaust 	the 	statutory impasse procedure; 	or 	(c)
the date 	on which 	it becomes 	clear that 	the Association has
failed to negotiate 	in good 	faith.
3. 	Written notification of 	the actions 	taken 	to 	comply with
this 	Order shall 	be made 	to 	the 	Sacramento Regional 	Director 	of
the 	Public 	Employment 	Relations 	Board 	in accordance with 	the
director's 	instructions.
Members 	Garcia 	and Dyer 	joined 	in 	this 	Decision.
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STATE OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
FRESNO COUNTY OFFICE EDUCATORS
ASSOCIATION, 	CTA/NEA,
Charging 	P a r t y ,
v.
FRESNO COUNTY OFFICE OF EDUCATION,
Respondent.
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Compliance
Case 	No. 	S-C-136
(HO-U-583 	[S-CE-1571])
PROPOSED DECISION
(11/6/95)
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Appearances: 	Diane Ross, 	Attorney, 	for Fresno County Office
Educators Association, 	CTA/NEA; 	Stroup 	& de Goede by Raymond W.
Dunne, 	Attorney, 	for Fresno County Office of Education.
Before Roger Smith, 	Hearing Officer.
PROCEDURAL 	HISTORY
The 	issue 	to be 	decided 	in this 	case 	is whether 	the 	Fresno
County Office 	of 	Education 	(County) 	has 	fully complied with the
Order 	in Public Employment Relations Board 	(PERB) 	Decision No.
HO-U-583.
The 	decision 	found 	that 	the 	County had violated 	section
3543.5(b) 	and 	(c) 	of 	the Educational Employment Relations Act
(EERA)1 when 	it 	refused the 	request 	of 	the 	Fresno County Office
Educators Association, 	CTA/NEA 	(Union or Charging Party) 	to meet
and negotiate 	about 	the 	effects 	of 	the 	County's 	decision 	to 	lay
off employees 	in the 	spring of 	1993. 	The Order provided that 	to
remedy the 	violation 	the 	County 	should:
Beginning ten 	(10) 	days 	from service of 	the
final decision in this matter, 	pay to unit
members who were 	laid off 	in 	1993 	their
1The EERA is codified at Government Code section 3540 et
seq. 	All 	statutory references are to the Government 	Code unless
otherwise 	noted.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
e
.
..

salary and benefits 	at 	the 	rate 	being paid
prior to 	layoff until 	the 	date 	of 	the
occurrence 	of 	the 	earliest 	of 	the 	following
conditions: 	(1) 	the date the County bargains
to 	agreement with the Union 	regarding 	the
effects 	of 	its 	decision to 	lay off 	the
affected employees; 	(2) 	the date the
statutory impasse procedure 	is 	exhausted; 	(3)
the date upon which it becomes 	clear that 	the
Union has 	failed 	to 	request 	negotiations
within ten 	(10) 	days of 	service of a 	final
decision 	in 	this 	matter or to 	commence
negotiations within five 	(5) 	working days of
notice by the 	County of 	its willingness 	to
bargain or; 	(4) 	the subsequent date upon
which 	it 	becomes 	clear that 	the Union has
failed to negotiate 	in good 	faith.
This decision became 	final on February 14, 	1995.2 On
February 	15, 	the Union requested the 	County to meet 	and negotiate
the 	effects of 	the 	1993 	migrant 	teacher 	layoffs. 	On February 22,
the 	County 	indicated 	its 	willingness 	to meet 	and 	indicated 	it 	was
available 	to meet 	on March 	3 	and 	"willing 	to 	clear our 	calendars
as 	necessary 	should 	the Association be 	available 	to 	negotiate 	on
an earlier occasion." 3 The parties met 	on March 3 	and continued
to meet 	regarding this matter.
On May 17, 	the 	County filed a request 	for 	impasse
2All 	dates 	referenced herein 	are 	in 	calendar year 	1995
unless 	otherwise 	noted.
Respondent, 	for the 	first 	time 	in 	its post-hearing brief
raises 	an argument 	of waiver by the Union. 	The 	County seeks 	to
have 	this hearing officer cut 	off 	liability on March 1, 	or 5
working days 	after 	the 	County advised 	the 	Union of 	its
willingness 	to meet. 	It 	is not 	required that 	the Union request
to meet 	within 	10 	days 	of 	the Order becoming 	final 	and meet
within 	5 	working days 	of 	the 	County's 	expression of willingness
to meet. 	The Order cuts 	off 	liability if 	the Union has not
requested to meet 	or there 	is 	a 	failure 	to meet within 	5 	working
-	days 	of 	the 	County's 	expression of willingness 	to meet. 	The
Union did request 	to meet 	within 	10 	days 	of 	the Order becoming
final 	and the parties met 	within a 	reasonable 	time.
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determination with the 	PERB 	regional 	office pursuant 	to
Regulation 327924 alleging that 	it 	had reached an 	impasse with
the Union on the effects of 	the 	1993 	layoffs. 	On May 22, 	the
request 	for 	impasse was 	approved by the 	regional 	director. 	On
May 23, 	the Union requested that 	PERB enforce 	the Order as 	to the
liability 	for pay and benefits 	to 	the 	laid off 	employees.
On August 	22, 	a 	formal 	hearing was 	conducted in order to
gather 	facts 	and to allow the parties 	to present 	their arguments.
Briefs 	were 	filed and the 	matter was 	submitted 	for decision on
October 25. 	The 	issues which are 	in dispute 	revolve around four
(4) 	teachers of 	the approximately 15 whom were 	laid off. 	The
parties 	stipulated 	that 	all 	other 	employees 	had mitigated 	their
front 	pay and that 	all 	other 	requirements 	of 	the 	Order had been
achieved.
ISSUES
1. 	Have 	the 	four employees 	in question made 	reasonable
efforts 	to mitigate 	their damages 	of 	loss 	of pay and benefits?
2. 	What 	interim earnings, 	if any, 	should be credited
against 	the 	front 	pay amount 	due?
ANALYSIS
The 	four employees 	in question, 	Paula Hart, 	Olga Martinez,
Rick Kirtland and Jean Walker, 	were 	laid off 	as migrant 	education
instructors 	in 	19.93. 	In order to demonstrate that 	these
employees 	failed to mitigate, 	it 	is 	the County's burden to
establish such failure. 	(NLRB v. 	IBEW Local Union 112 	(9th Cir.
4PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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1993) 	992 F.2d 990, 	993 	[143 LRRM 2256]; 	Kawasaki Motors v. 	NLRB
(9th Cir. 	1988) 	850 F.2d 524, 	527 	[128 LRRM 2913] 	(Kawasaki)).5
The 	employer's 	burden 	is 	established by a preponderance 	of 	the
evidence. 	(NLRB v. 	Brown and Root 	Inc. 	(8th Cir. 	1963) 	311 F.2d
447, 	454 	[52 LRRM 2115]; NLRB v. Madison Courier. 	Inc. 	(D.C. 	Cir.
1972) 	472 	F.2d 1307, 	1318 	[80 	LRRM 3377].) 	Any uncertainty is
resolved against the employer. 	(J. 	H. 	Rutter-Rex Mfg. 	Co. 	(1971)
194 NLRB 19, 24 [78 LRRM 164 0] .
In establishing a 	failure 	to mitigate, 	the 	employer must
demonstrate 	that 	the 	claimant 	failed to make 	efforts 	"consistent
with 	the 	inclination 	to work 	and to be 	self-supporting."
(Kawasaki, 	at p. 	527; 	Sioux Falls Stock Yards Co. 	(1978) 	236 NLRB
543, 	551 	[99 LRRM 1316].) 	Claimants are not expected to seek a
job more 	onerous 	than 	the 	one 	from which 	they were 	removed but
rather are 	expected 	to 	seek 	a 	substantially equivalent 	job.
(Kawasaki, 	at p. 	528.)
The 	employer's mitigation test 	can be met 	if 	it 	demonstrates
that 	(1) 	a number of positions were 	available that 	are
substantially equivalent 	to 	the 	one 	previously held by the
claimant; 	(2) 	the claimant would have qualified for one of 	these
positions; 	and 	(3) 	the claimant did not apply for these
positions. 	If the employer passes these three steps, 	a claimant
5See Woodland Joint Unified School 	District 	(1986) 	PERB
Decision No. 	HO-R-108; 	enforcing HO-U-211 which recites 	PERB's
reliance 	upon National 	Labor Relations 	Board 	(NLRB) 	and court
opinions 	in the 	area of mitigation in back-pay cases. 	PERB may
use 	federal 	precedent 	where 	it 	can be 	applied to public 	sector
labor law. 	Firefighters v. 	City 	of Vallejo 	(1974) 	12 	Cal.3d 608
[116 Cal.Rptr. 507].
44

can still prevail 	if 	the 	record shows 	reasonable 	efforts 	to
obtain interim employment. 	Kawasaki, 	at p. 	527.
Paula Hart
Hart 	was 	unemployed during 	the 	relevant 	period 	for purposes
of 	this 	ruling. 	Hart was not 	called as 	a witness. 	The 	County's
witness, 	Lawrence Wilder, 	Assistant Superintendent 	for
Administration 	for the 	County, 	testified that Hart 	applied 	for
the 	position 	of 	resource 	teacher with the 	County 	sometime 	in 	the
spring of 	1994 	for a vacancy upcoming 	in the 	1994-95 	school 	year.
This 	application 	came 	following her being 	laid off 	from a
position 	at 	the West 	Fresno Elementary School 	District 	following
the 	1993-94 	school year.
County Exhibits 	5 	and 	7 	reflect 	that 	Hart 	applied 	for
positions 	with 	the 	Fresno Unified School 	District 	and the 	Clovis
Unified School District on June 	3, 	1994 	and in April 	1994,
respectively. 	Hart's 	income 	from the 	County prior to 	the 	layoff
was 	$4,071.60 	per month on a 	10-month basis.
The 	County argues 	that Hart 	was 	not 	diligent 	in her duty to
search 	for employment 	and relies 	on the 	fact 	that 	in 	1995 	Hart
did not 	renew applications 	she 	had 	submitted 	for 	the 	Fresno
Unified 	School 	District 	and 	the 	Clovis 	Unified 	School 	District 	in
1994. 	The 	County relies 	on a 	declaration 	from Fresno Unified
School District 	Human Resources Analyst Annette Rider, 	stating
that 	an excess 	of 	200 	persons 	were 	hired 	in the 	1994-95 	school
year, 	to 	support 	its 	argument 	that Hart 	did not 	exert 	enough
effort.
55

The 	employer 	further 	contends 	that 	County Exhibit 	8B
demonstrates 	that 	the 	Clovis 	Unified School 	District 	hired 	123
new certificated employees 	in 	the 	1994-95 	school 	year and 	thus
Hart 	failed 	to 	follow 	through with 	enough persistence.6 The
County contends 	that 	it 	has met 	its burden with respect 	to Hart's
failure 	to mitigate.
Under the 	established NLRB 	case precedent, 	discussed above,
the 	County has 	failed to 	demonstrate 	that 	Hart 	failed to make
efforts 	to obtain employment. 	(Kawasaki.) 	The 	County's own
evidence 	demonstrates 	that 	Hart 	applied 	for positions 	with both
the 	Fresno 	and Clovis 	school 	districts 	in the 	spring of 	1994.
In 1994-95, 	of 	the 	200 	teachers 	Fresno Unified hired and the
123 	in Clovis Unified, 	there was no evidence presented as 	to what
credentials were 	held by the 	new hires 	or 	if Hart 	or any of 	the
other 	employees 	subject 	to 	this 	proceeding qualified 	for 	any of
the positions 	filled. 	The 	only other evidence presented was 	a
declaration 	from Jean Fetterhoff, 	Assistant 	Superintendent, 	Kings
Canyon Joint Unified School 	District. 	This 	declaration does 	not
indicate 	for what 	time period 	Fetterhoff 	conducted her 	search 	for
applications nor does 	it 	state 	if 	in fact 	the Kings 	Canyon Joint
Unified 	School 	District 	hired 	any 	certificated 	employees 	that
have 	similar 	credentials 	or training to Hart's. 	The 	declaration
indicates 	that 	applications 	from Hart, 	Rick Kirtland and Jean
Walker could not 	be 	found.
6The 	County directs 	the undersigned to Exhibit 	8B 	at 	page 	3.
That 	exhibit 	at page 	1 demonstrates 	that 	there were 	24
certificated position 	job postings 	from 	7/1/94 	- 	6/30/95 	for
which there were 23 0 applicants.
66

As indicated, 	pursuant to J. 	H. 	Rutter-Rex Mfg. 	Co.. 	supra,
194 NLRB 	19, 	any uncertainty is 	resolved against 	the employer.
Therefore, 	the 	County is 	required to compensate Hart 	at 	the 	rate
of 	$4,071.60 	per month on a 	10-month basis 	for 	the period 	from
February 24, 	until 	the parties 	reach agreement 	or 	impasse
procedures 	are 	completed regarding the 	effects 	of 	its 	decision to
lay-off.7
Olqa 	Martinez
Martinez 	was 	not 	called as 	a witness. 	Charging Party fails
to mention her 	in 	its post 	hearing brief. 	It 	can be presumed
that 	due 	to 	the 	evidence presented through County Exhibit 	4, 	p.
7, 	a County developed extract 	of 	earnings 	reported to State
Teachers 	Retirement 	System 	(STRS), 	that 	Charging Party has
dropped 	its 	claim of 	back-pay liability. 	Exhibit 	4 	demonstrates
that Martinez 	was 	earning a higher salary at 	her new employer,
Fresno Unified School 	District, 	than 	she would have 	earned with
the 	County based on her pre-1993 	layoff 	salary. 	Therefore, 	the
County has met 	its burden. 	Martinez 	is not 	owed any back-pay.
Rick 	Kirtland
Kirtland was not 	called as 	a witness. 	County Exhibit 	3, 	p.
1, 	demonstrates 	that 	Kirtland was 	employed by the 	Fresno Unified
School 	District 	in the 	relevant period. 	His 	salary with the
Fresno Unified School 	District 	was 	$1,647.70 	per month. 	While
1
7The 	record 	indicates 	that 	agreement was 	reached but was
awaiting 	final 	ratification by the Union's 	bargaining unit 	in
early September. 	There was 	agreement 	that 	the 	County would
submit 	documentation 	confirming 	final 	agreement 	on 	the 	effects
bargaining. 	Since that time, 	however, 	the PERB appointed
mediator has 	certified this 	impasse 	to 	factfinding.
77

employed with the 	County, 	Kirtland's 	salary base 	in 	1993 	was
$3,304.50 	per month. 	Based on the 	evidence presented, 	the 	County
has 	failed to meet 	its burden pursuant 	to Kawasaki; 	Therefore,
Kirtland 	is 	entitled to 	the 	difference 	in 	earnings 	from the
Fresno Unified School 	District 	and his 	previous wages 	with the
County, 	$1,656.80 per month based on a 	10-month schedule.8
Jean Walker
Walker was 	called as 	a witness 	by Charging Party. 	She
testified that 	following her being 	laid off 	she 	sent 	out
approximately 	50 	applications 	for work at 	school 	districts
throughout 	California. 	The 	applications were 	not 	all 	submitted
as 	the 	result 	of Walker's 	knowledge 	of 	a vacancy at 	a particular
district, 	but 	rather as a letter of 	interest. 	She was not
employed 	during 	the 	relevant 	back-pay period.9
Walker 	testified 	that 	she 	had 	applied 	for 	a 	teacher position
in 	the 	spring at 	a youth authority school 	in Paso Robles 	and had
made 	it 	to the 	interview stage of 	the 	final 	three 	candidates, 	but
was 	not 	offered the position. 	She 	also 	testified regarding
vacancies 	in 	1994-95 	in school 	districts 	in Sanger, 	Fowler and
Madera 	that 	she 	applied 	for but 	did not 	obtain. 	Walker testified
that 	she 	was 	working 	through a 	County program that 	assists 	job
8 Respondent, through correspondence 	and its briefs, 	seeks 	to
have 	Kirtland's 	front 	pay eliminated as 	a 	result 	of 	the 	fact 	that
he 	is 	only working part-time 	at 	Fresno Unified School 	District.
No 	evidence 	was 	provided 	to 	support 	this 	claim.
9Walker 	testified that 	she 	applied 	for 	and received a
partial 	STRS pension. 	Empire Worsted Mills 	(1943) 	53 NLRB 	683
[17 LRRM 67], 	describes 	interim earnings as earnings received for
actual work or services performed. 	Therefore, 	pension monies 	are
not 	considered as 	interim earnings.
8

hunters 	improve 	their 	skills 	and 	focus 	on positions 	that 	they
might 	qualify for as 	applicants. 	She 	stated she 	had applied to
work at 	several 	private 	schools, 	and other private 	businesses
including publishing companies 	as 	a proof 	reader. 	Walker's pre-
layoff 	salary with the 	County for a 	10-month base was 	$3,840.30.
The 	County again 	argues 	that 	Walker did not 	demonstrate 	that
she made 	serious 	efforts 	to 	seek employment. 	It 	argues 	that
Walker's 	testimony was 	conclusory, 	vague 	and confused. 	The
employer places 	inordinate 	importance 	on Walker's 	testimony 	that
if 	she 	saw a 	CBEST requirement 	on any job announcement, 	she would
not 	apply.10
Walker's 	clear 	testimony relating her 	job 	search at 	over 	50
school 	districts 	throughout 	the 	Central 	Valley and other parts 	of
the 	state, 	her 	interview with the 	California Youth Authority in
Paso Robles, 	and her registration with a 	County run 	job placement
program, 	demonstrates 	that 	she 	attempted to 	find other employment
despite 	the 	on-set 	of 	health-related problems. 	Her recent
efforts 	to 	locate work at private 	Christian schools 	is 	not
evidence 	that 	she 	has 	removed herself 	from the 	job market, 	but
rather reflects 	the widening of 	her 	search zone. 	The 	County has
not 	demonstrated 	that 	Walker was 	inactive 	in her 	job 	search or
failed to mitigate 	nor 	that 	her 	reliance 	on 	CBEST 	requirements
limited her 	search 	zone 	so 	as 	to 	limit mitigation. 	The 	reliance
on Walker's 	health problems 	as 	evidence 	of 	her unavailability 	for
work does 	not 	meet 	the 	standard necessary to use 	illness 	as
10CBEST is 	a basic 	skills 	test 	applied to 	teachers who do
not 	have 	active 	credentials.
99

offsetting 	for back-pay. 	The NLRB 	Casehandling Manual 	(Part
Three) 	(1989) 	section 10618.2 	instructs us that discriminatees
are 	to be 	considered unavailable 	for work when 	they are 	ill 	for
periods 	of 	over three 	days. 	Walker's uncontroverted testimony
was that 	she was 	in the hospital 	for 	"a couple of days," 	for
treatment 	of 	a manic depressive 	condition. 	This 	does not
demonstrate 	that 	Walker was 	unavailable 	for work.
The 	County, 	in order to comply with the order, 	should
compensate Walker at 	the 	rate 	of 	$3,840.30 	per a 	10-month base
from February 24, 	until 	a 	final 	agreement 	is 	reached between the
parties 	or the 	statutory 	impasse procedures 	have 	been 	exhausted.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record 	in this 	case 	and pursuant 	to 	the 	(EERA)
Government Code section 3541.5(c), 	it 	is hereby ORDERED that the
Fresno County 	Office 	of 	Education 	(County) 	shall 	take 	the
following affirmative 	action 	to 	effectuate 	the policies 	of 	the
EERA:
1. 	Make whole 	Paula Hart 	at 	the 	rate of 	$4,071.60 	per month
on a 	10-month basis 	from February 24, 	1995 	through the date 	that
the 	underlying 	disputed 	issue 	regarding 	layoff 	is 	resolved by
agreement 	or exhaustion of 	the 	statutory 	impasse procedures. 	The
County shall make 	its 	initial payment 	to Hart within 5 	days 	of
this 	decision becoming final. 	This payment 	shall 	encompass 	the
period from February 24, 	1995 	through the nearest payroll 	date of
this 	decision becoming 	final.
2. 	Make whole Jean Walker at 	the rate of 	$3,84 0.3 0 per
10

month on a 	10-month basis 	from February 24, 	1995 	through the 	date
that 	the 	underlying disputed 	issue 	regarding 	layoff 	is 	resolved
by agreement 	or 	exhaustion of 	the 	statutory 	impasse 	procedures.
The 	County shall 	make 	its 	initial 	payment 	to Walker within 	5 	days
of 	this 	decision becoming 	final. 	This payment 	shall 	encompass
the period 	from February 24, 	1995 	through the 	nearest 	payroll
date 	of 	this 	decision becoming final.
3. 	Make whole Rick Kirtland at 	the 	rate 	of 	$1,656.80 	per
month on a 	10-month basis 	from February 24, 	1995 	through the 	date
that 	the 	underlying disputed 	issue 	regarding layoff 	is 	resolved
by agreement 	or 	exhaustion of 	the 	statutory 	impasse procedures.
The 	County shall 	make 	its 	initial 	payment 	to Hart within 	5 	days
of 	this 	decision becoming 	final. 	This payment 	shall 	encompass
the period 	from February 24, 	1995 	through the nearest payroll
date 	of 	this 	decision becoming 	final.
4. 	Following the initial payments 	to Hart, 	Walker and
Kirtland, 	continue making monthly payments, 	if any, 	until the
underlying 	issue 	regarding 	layoffs 	is 	resolved by agreement 	or
the 	exhaustion of 	the 	statutory 	impasse 	procedures 	or 	the
subsequent 	date upon which it 	became 	clear that 	the 	Fresno 	County
Office Educators Association, 	CTA/NEA has 	failed to negotiate 	in
good 	faith.
5. 	Upon this decision becoming final, 	make written
notification of 	the 	actions 	taken 	to 	comply with 	this 	order 	to
the 	Sacramento Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance 	with his 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
11

section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
2 0 	days of 	service of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on the
last 	day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the 	last 	day set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy 	served on 	a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
ROGER 	SMITH
Hearing 	Officer
12