Alum Rock Union School District/Mt. Diablo Unified School District (PERB A115E)

STATE
	OF
	CA.LIFORNIA
DECIS
I
CN
	OF
	THE
PUBLIC
EMl?LOYMENI'
	RELATIONS
	BOARD
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION,
	CHAPTER
	30
5,
Charging
	Party,
v.
ALUM ROCK 	UNION SCHOOL
	DISTRIC'r,
Respondent.
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_________________ )
C as e
No
• 	SF
-CE-1
7 0
MT. 	DIABLO EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging
	Party,
and
JOilli 	MILLS,
	PETER
	MOLINO,
	CA.ROL
YOUNG,
	CATHERINE
	AV
INGI'CN,
LA
URIE 	PETE
RS
rn
	and	
LES 	GROOB
IN,
Inter
venors,
v.
MT. 	DIABLO
	UNIFIED
SCHOOL
DIST
RI CT, 
Res
pendent.
Case
No. 	SF-CE-452
PERB
Decision
No.
	Ad-115
September 22, 	1981
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MT. 	DIABLO 	FEDERATICN 	OF
'l'EA CHE RS , 	LOCAL 	19 0 2 ,
	CFT
/AFT
,
AFL-CIO
,-
JOHN
	MILLS, 	PETER 	MOLINO,CAROL 	YOUNG, 	CATHERINE 	AVINGI'CN,
LAURIE 	PETERSON 	AND 	LES 	GROOBIN,
Charging
	Parties,
v.
MT. 	DIABLO
	UNIFIED
SCHOOL
DISTRICT,
Respondent.
Case No. 	SF-CE-455
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_________________ )

~_Eearances: 	John
	L.
	Bukey,
	Attorney
	for
	Alum
	Rock
Union
School
	District.
	Kirsten
	L.
	Zerger, 	Attorney
	for
	Mt.
	DiabloEducation
Association,
	CTA/NEA;
	Margaret
	E.
	O'Donnell,
	Attorney
(Breon,
	Galgani	
&
Godino)
	for
	Mt.
	Diablo Unified
	School
District;
	W.
	Daniel
Boone,
	Attorney
	(Van
	Bourg,
	Allen,
	Weinberg
&	
Roger)
	for
	the
	individually
	named
	charging
	parties
	and
Mt.
	Diablo Federation 	of
	Teachers,
	Local 	1902,
	CFI'/AFT,
	AFL-CIO.
Before
	Jaeger,
	Moore 	and
	Tovar,
	Members.
DECISION
These
	cases
	come
	before 	the
	Public
Employment
	Relations
Board
	(hereafter
	PERB
	or
	Board)
	on
	appeal
	from
	the
	chief
administrative
	law
	judge's 	(hereafter
	CALJ)
	denial
	of
	separate
motions
	filed
	by
	the
Alum
Rock
Union
School
	District
	and
	the
Mt.
	Diablo Unified
	School
	District
	(hereafter
	District
	or
Districts)
	to
	reopen
	the 	record
	and
	clarify
	the
	remedy
	in
	two
separate 	unfair 	practice 	cases.
	Both
	unfair 	practice
	cases 	are
currently
	on
	the
	Board's
	appellate
	docket 	concerning
	exceptions
filed
	to 	hearing
	officer
	proposed
	decisionsl 	in
	the
respective 	cases. 	In
	each
	case,
	after
	issuance
	of
	the 	proposed
decision,
	the
	Districts 	filed
	motions 	with 	the
	chief
admi n
is tr
a
ti
ve
	1
aw
	j ud ge .
lPERB
	administrative 	regulations 	are 	located 	in
	the
California Administrative
Code,
	title
	8, 	sections
	3100
	et 	seq.(hereafter
	PERB
	Rules).
	Proposed
	decisions 	are 	provided
	for 	in
PERB
	Rule 	32215, 	which
	states 	in 	relevant 	part:
At 	the
	close
	of 	the 	formal 	hearing 	the 	case
shall
	be
	submitted 	to 	the
	Board 	agent
conducting 	the 	hearing 	or 	another 	Board
agent 	assigned
	by
	the Chief Administrative
Law
	Judge
	who
	shall 	issue
	a
	proposed
decision 	or 	submit 	the 	record 	of 	the 	case 	to
the 	Board
	itself
	for 	decision 	pursuant 	to
instructions
	from 	the 	Board
	itself.
2

The
	CALJ
	concluded
	that
	he
	had
	no
	jurisdiction
	to
	consider
the 	motions 	because
	his 	authority
	over
	an
	unfair
	practice
matter
	ceases
	upon
	issuance
	by
	the 	hearing
	officer
	of
	a
proposed
	decision.2	
He
	certified
	his 	denial
	of 	the
respective
	motions
	as
	an
	administrative 	decision
	which
	the
parties
	may
	appeal
	to
	the 	Board.3	
These 	motions
	involve
similar 	issues,
	and
	the
	Board 	has
	consolidated
	them
	for
purposes
	of
	this
	decision.
	For
	the 	reasons
	set 	forth
	below,
the
Districts'
	motions 	are 	denied.
PROCEDURAL
	HISTORY
AND 	FACTS
On
January 18,
	1978,
	the
	California
s_chool
Employees
Association,
	Chapter
	305
	(hereafter
	CS~A)
	filed
	unfair
	practice
charges
	against 	the
Alum Rock
Union
School
	District.
	The
com
plaint
	alleged
	that
	the
	District
	unlawfully
	ref
used
	to
negotiate
	regarding 	the
	impact 	of
	a
	reclassification
	scheme
i ns
ti
tut
ed
	by
	the
	D
is
tr
i
ct
.
2The
	CALJ
	cited
	PERB
	Rule 	32215, 	as 	the
	basis 	for
	his
conclusion. 	See
	footnote 	1, 	supr~, 	for
	text.
3PERB
	Rule
	32350
	states 	in 	relevant 	part:
(a) 	An
	administrative 	decision 	is
	any
det
ermi
nation
	made 	by
	the
	• 	• 	•
	Chief
Admi
nistr ati
ve
	Law
Judge
	• 	• 	•
	other 	than
	a
ref
us
al
	to 	issue
	a 	com
plaint 	in
	an
	unfair
practice
	case 	pursuant
	to Section
	32630,
	or
a
	decision 	issued 	pursuant
-to
Section
	32654(e) 	or
	a
	decision
	which
	results
trom 	the 	conduct 	of
	a
	formal 	hearing.
PERB
	Rule 	32360
	states 	in 	relevant 	part:
(a)
	An
	appeal
	may 	be
	filed 	with 	the 	Board
3

itself
	from
	any
	administrative 	decision,
except
	as
	noted
	in 	section
	32380.
The
	matter
	was
	held
	in
	abeyance
	pending
	the
	Board's
decision
	in
	a
	similar
	case.4	
At
	the 	request
	of
	CSEA,
	the
matter
	was
	taken 	out 	of
	abeyance
	and
	formal
	hearing
	was
	held
	on
April
	16
	and
	17,
	1980.
	In 	the
	proposed
	decision,
	issued
	on
April 	6,
	1981,
	the 	hearing
	officer
	sustained
	the
	unfair
practice
	charge,
	finding 	violations
	of
	section
	3543.S(a),
	(b)
and
	(c)
	of
	the Educational
Employment
Relations
Act
	(hereafter
EERA) • 5	
The
	District
	filed
	exceptions
	on
	April
	27, 	1981.
6
4Healdsbur
	Union 	Hi
	h
	School
	District
	and
	HealdsburUnion
School
	District
	(6/19
	80) 	PERB	
Decision
No.
	132.
5'11
he EERA	
is
	codified 	in
Government
	Code
	sections
	3540
et
	seq. 	All
	statutory
	references
	are 	to
	the
	Government Code
unless 	otherwise 	noted. 	Sections 	3543.S(a),	
(b)	
and 	(c}
provide: 
(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) 	Ref use 	or
	fail
	to
	meet
	and
	negotiate 	in
good
	faith
	with
	an
	exclusive 	representative.
6The
	proposed
	decision
	and
	exceptions 	are
	part
	of
	a
separate 	unfair 	practice 	file
	of
	which
	PERB
	may
	take
administrative 	notice. 	Santa
	Monica Community
College
	District
(9/21/79)	
PERB
	Decision
No.
	103.
4

On
	April 	29,
	1981,
	the
	District
	filed
	its
	motion
	entitled
"Motion
	for
	Clarification
	of
	the
	Order
	and
	Reopening
	of 	the
Record
	to
rrake
Evidence
	on
	Subsequent
Events That
Affect
	the
Remedy
	(Amended)."
	The
	Alum
	Rock
	District
	requested
	that 	the
hearing 	record
	be
	reopened
	to
	clarify
	the 	hearing
	officer's
order
	and
	introduce
	new
	evidence
	relevant
	to 	the
	remedies
ordered
	by
	the 	hearing
	officer.
	That
	motion
	was
	denied
	by
	the
CALJ
	on
	the
	same
	day
	it
	was
	filed
	and
	the
	instant
	appeal
	was
filed
	on
May
	11,
	1981.
On
March
	25,
	1980,
	the
	Mt.
	Diablo Education
	Association
(hereafter
Association)
	filed
	an
	unfair
	practice
	charge
	against
the
	Mt.
	Diablo Unified
	School
	District
	charging
	a
	violation
	of
sections
	3543.5
{a),
	(b)
	and
	(c)
	of
	the
	EERA.
	The
	charge
alleged 	that
	the
	District
	refused 	to
	meet
	and
	negotiate 	with
the Association 	regarding 	the
	implementation
	and
	impact 	of
layoffs
	which
	took
	place
	in
	the
	spring
	of
	1980.
	On
April 	7,
1980,
	the
Mt.
	Diablo Federation 	of
Teachers, 	Local 	1902,
CFT/AFT, 	AFL-CIO
	(hereafter 	Federation)
	and
	certain
Mt.
	Diablo
teachers
	who
	were members
	of
	the Federation
	filed
	an
	unfair
practice
	charge
	against
	the
	District
	alleging 	that
	the
District's
	unilateral
	adoption 	of
	the 	same-date-of-hire
criteria
	violated 	sections
	3543.S(a)
	and
	(c).
	Formal
	hearing
on
	the 	unfair 	practice
	charges
	was
	held
	on August 	11-15,
	18,,
S~pternber 	15-18,
	and 	October 	1-3, 	1980.
	The
	proposed
	decision
was
	issued
	on
	April 	3, 	1981. 	The
District 	filed 	exceptions
5

to 	the
	proposed
	decision
	and
	filed
	its
	motion,
	entitled
	"Motion
to
	Reopen
	the
	Case
	for
	Further
	Proceedings"
	on
	the
	same
	date,
April
	14,
	1981.
	•rhe
Mt.
	Diablo
	motion
	contained 	the
	same
request
	as
	the
	Alum
	Rock
	District's
	but
	also 	asserted
	that
	the
new
	evidence
	would
	establish
	its
	reduced
	liability
	in
connection
	with 	the 	underlying
	unfair 	practice
	charges.
	The
motion
	was
	denied
	by
	the
	CALJ
	on
	April 	16,
	1981 	and
	the
	instant
appeal
	was
	filed
	April
	27,
	1981.
DISCUSSION
EERA
	mandates
	and 	empowers
	PERB
	to 	determine 	the
	validity
of
	unfair 	practice
	charges.?	
The
	Board 	has
	delegated 	to 	the
CALJ
	and
	his
	agents
	specific 	responsibility
	for 	processing
	and
hearing
	such
	cases.8	
Once
	a
	proposed
	decision
	has 	been
7EERA
	section
	3541.
5
	states
	in 	pertinent 	part:
The
	initial
	determination
	as
	to
	whether
	the
charges
	of
	unfair 	practices
	are
	justified
and,
	if
	so,
	what 	remedy
	is
	necessary 	to
effectuate
	the 	purposes 	of
	this
	chapter,
shall
	be
	a
	matter 	within 	the 	exclusive
j
ur
i
sdi
cti
on
	of 	the 	Board.
8pERB
	Rule
	32118
	states 	in 	pertinent 	part:
The
Chief
Admi
nistr ati
ve
	Law
Judge
	is 	the
officer
	designated
	by
	the
	Board
	its
elf
	to
preside
	over
	the Division 	of Administrative
Law. 	The
	Board
	delegates 	to 	the 	Chief
Administrative
	Law
Judge
	all 	responsibility
for 	processing
	and
	hearing 	unfair 	practicematters 	including 	informal 	conferences, 	the
issuance 	of 	dismissals
	and
	written 	decisions
following 	hearing.
6

issued
	or,
	al
tern
a
ti
vely, 	the
	record
	of
	the
	case
	has
	been
submitted
	directly
	to
	the
	Board
	for
	decision,
	the
	CALJ
	and
	his
agents
	have
	no
	further 	authority
	over 	the
	case.
9	
Neither
	the
CALJ
	nor
	his
	agents
	are
	empowered
	to
	reopen
	the 	hearing
	record
after
	issuance
	of
	a
	proposed
	decision.
	The
	Board
	therefore
upholds
	the
	decision
	by
	the
	CALJ
	refusing
	to 	consider 	the
motion
	on
	its
	merits
.10
The
	Board 	has
	general
	statutory 	authority
	to 	grant
	relief
which
	it
	deems
	necessary
	to
	effectuate
	the 	purposes 	of
	the
EERA.11	
However,
	the
	Board
	declines
	to
	exercise
	its
authority 	in
	this
	instance
	because
	the
	relief
	requested
	would
9PERB
	Rule
	32215. 	See
	footnote 	1,	
~EE!.~·
10The
	situation 	presently
	before
	the
	Board
	is
	to
	be
distinguished
	from 	one
	wherein
	a
	request 	to
	reopen
	the 	record
is
	made
	2rior
	to 	issuance
	by
	the
	hearing
	officer
	of
	a
	proposed
decision.
	For 	example,
	in
	Beverly
Hills
	Unified
	School
District
	(8/8/78)
	PERB
	Decision
	No. 	63,
	the 	hearing
	officer
contemplated 	such
	relief
	but 	denied
	same 	on
	the
	ground
	that
	a
proper
	showing 	had
	not
	been
	made 	and
	that, 	in
	general,
	such
	a
procedure
	is
	discouraged.
Additionally,
	this 	situation 	is
	to
	be
	distinguished
	from
that 	in
	which 	a
	request 	to 	submit
	new 	and
	additional 	evidence
and
	argument
	pertaining
	to 	the 	case
	is
	made
	subsequent 	to 	theBoard's 	decision. 	Santa Clara Unified
	School
	District
	(5/7
/80)
PERB
	Decision
	No.
	104(a).
llsection
	3541.3
	states 	in 	relevant 	part:
The 	board
	shall
	have
	all
	of 	the 	followingpowers 	and
	duties:
• 	• 	• 	• 	• 	• 	• 	•
	ti	
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• •
(n) 	To
	take 	such
	other 	action
	as
	the 	boarddeems
	necessary 	to 	discharge
	its
	powers 	and
7

merely
	duplicate
	existing
	means
	of
	addressing
	the
Districts'
concerns.
duties
	and
	otherwise 	to
	effectuate
	the
purposes 	of
	this
	chapter.
The
	Districts'
	grounds
	for 	the
	motions
	being
	considered 	are
twofold:
	the
	remedy
	ordered
	by
	the 	hearing
	officer 	is
ambiguous;
12	
and,
	the
	remedy
	is
	inadequate 	without 	the
introduction
	of
	further
	evidence.
	These
	objections 	will
	be
considered
	separately.
First,
	the
	clarification
	of 	the 	remedies'
	alleged
ambiguities
	does
	not
	require 	the 	introduction
	of
	new
	evidence.
The
	Board
	may
	resolve
	the
	issue
	when
	it
	evaluates
	the
Districts'
	exceptions,
	and 	any
	remaining
	uncertainties
	can
	be
resolved 	vi
a 	a
	compliance
	hearing.
	Con
tr
ar
y
	to
	the
	Mt.
	D
iablo
District's
	assertions,
	PERB
	has
	utilized
	compliance
	hearings.
S
►
ee	
Santa
Monica 	Canmunity
College
	District
	(9/21/79)
	PERB
Decision
No.
	103; 	San
Francisco
Community
College
District
(10/12/79)
	PERB
	Decision
	No.
	105;
	and
	Santa Clara Unified
School
	District,
	supr~.
	To
	reopen
	the 	hearing 	record
	at
	this
juncture 	for 	the 	purpose 	of
	clarifying
	the 	order
	is 	therefore
unnecessary
	and 	would
	serve
	no
	statutory objective.
12The Alum Rock
	District
	claims 	that 	the
	remedy
	is
a~biguous 	because
	internally 	inconsistent,
	while 	the
Districtin
Mt.
	Diablo 	asserts 	that 	the 	ambiguity
	results
	from
	vagueness.
8

S_econd,
	the
	Districts
	also
	allege
	that
	the
	remedies
	ordered
are 	inadequate
	because
	it
	does
	not
	take
	account
	of
	the 	par
ti
es'
current
	circumstances.
	The
Districts
	point
	out
	that
	many
	of
the
	effects
	were
	not
	known
	at
	the 	time 	of 	the
	hearing
	and
	urge
that
	the
	record
	be
	reopened 	so
	that
	additional
	details
	can 	be
presented.
The
	Mt.
	Diablo
District
	urges
	that
	the
	remedy
	as
	set
	forth
in
	the 	order
	is 	deficient
	because
	it
	does
	not
	specify
	the
instances 	in
	which
	compensation
	is
	owing
	to
	affected
employees.
	In
	NL~ v. 	Rutter-Rex
Mfg. 	Co.
	(5th
Cir.
	1957)
	134
F.2d
	594 	[40
	LRRM
	22131.
	the 	court
	considered
	an
NLRB
	decision
in
	which
	an
	employer
	objected
	to 	the
	validity
	of
	the 	order
	on
the
	ground
	that
	the 	record 	did
	not
	reveal
	the
	full
	extent 	of
its 	liability.
	The
Court
	of
	Appeal, 	reviewing
	the
	NLRB'
s
order, 	held
	that
	the
	employer
	had 	no
	right
	to
	demand,
..•
	that
	all
	the matters
	be
	thrashed 	out
in
	the
	initial
	Board
	proceeding.
U
nderta
king 	to
	ascertain
	the
	myriad 	of
details
	respecting
	the
	right 	to,
	and
	the
extent 	of,
	the
	remedy
	as
	to
	each
	specific
striker
	out 	of
	a
	large 	labor 	force
	would
canplicate 	the 	proceeding
	and
	perhaps
	make
it
	endless.
	The
	final
	order 	declaring
	it
	to
be 	an
	unfair 	labor
	strike
	cannot
	be
	obtained
unless 	the 	hearing
	on
	the 	main
	issues
	can
end.
	NLRB
	V.
	Rutter-Rex
	Mfg.
	Co.,	
§_~,
134
	F.2d
	at 	p.
	598 	[40
	LRRM
	at 	p. 	2216].
Whatever
	uncertainties
	are 	perceived 	to
	exist 	in
	the 	Board's
ultimate
	remedy 	can
	be
	resolved 	in
	a
	compliance 	hearing.
9

The Board concludes, in light of the above-des cribed
alternatives, that the record of the hearing on the merits in
the two cases need not contain all of the details of the impact
arising from the Districts• alleged unfair practices. The
parties' interests are adequ ately protected without reo pening
the record at this stage of the proceedings.
ORDER
Upon the foregoing decision and the entire record in this
case, the Public Emplo yment Relations Board ORDERS that t he
m otions to reopen the hearing record, made by the Alum R ock
Union School District and the Mt. Diablo Unified School
District, respectively, shall be D ENIE D.
By: �hn W. Jaeger Melnber	,or Barbara D. Moore, Member
C
Irene Tovar, Member
10