Modesto City Schools and High School District (PERB A143EA)

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.
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MODESTO
	TEACHERS ASSOCIATION,
CTA/NEA,
Charging
	Party,
	APPELLANT,
v.
MODESTO
	CITY
	SCHOOLS
	AND
	HIGH
SCHOOL
	DISTRICT,
Respondent.
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___________________
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Case
	No.
	S-CE-485
Request
	for 	Reconsideration
PERB
	Decision
	No. 	414
PERB
	Decision
	No.
	414a
January
	16,
	1985
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,

CTA/NEA
	(Association)
	pursuant 	to
	Board
	Regulation
	32410,
hereby 	denies
	that
	request.
1
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
PERB
	Regulations
	are 	codified
	at 	CaliforniaAdministrative
	Code,
	title
	8,
	secton
	31001
	et
	seq.
	PERB
regulation
	32410(a)
	provides:
1
Any
	party 	to
	a
	decision
	of 	the
	Board
	itself
may,
	because 	of 	extraordinary 	circumstances,
file
	a
	request 	to 	reconsider 	the
	decisionwithin
	20
	days
	following 	the 	date 	of
	service
of 	the
	decision.
	An
	original
	and 	5
	copiesof 	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
32140
	are 	required.
	The
	grounds
	for
requesting 	reconsideration 	are 	limited 	toclaims
	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.
2

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
	PERE
	after
	the
arbitrator's
	decision 	issued.
	The
	arbitrator, 	like
	the
	ALJ,
3

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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