Apple Valley Unified School District (PERB A209EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
APPLE 	VALLEY 	UNIFIED 	SCHOOL
DISTRICT,
Employer,
and
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	CHAPTER 	#653,
Exclusive 	Representative,
and
APPLE 	VALLEY 	CLASSIFIED 	EMPLOYEES
ASSOCIATION, 	CTA/NEA,
Employee 	Organization.
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Case 	No. 	LA-D-245
Request 	for 	Reconsideration
PERB 	Order 	No. 	Ad-209
PERB 	Order 	No. 	Ad-209a
September 	19, 	1990
Appearance: 	Harry 	J. 	Gibbons, 	Attorney, 	for 	California·School
Employees 	Association 	Chapter 	#653.
Before 	Craib, 	Shank 	and 	Cunningham, 	Members.
DECISION
CRAIB, 	Member: 	This 	matter 	is 	before 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	a 	request 	by 	the 	California
School 	Employees 	Association 	Chapter 	#653 	(CSEA) 	that 	the 	Board
reconsider 	its 	decision 	in Apple 	Valley 	Unified 	School 	District
(1990) 	PERB 	Order 	No. 	Ad-209. 	In 	that 	decision, 	the 	Board 	found
that 	a 	decertification 	petition 	filed 	by 	the 	Apple 	Valley
Classified 	Employees 	Association, 	CTA/NEA, 	was 	not 	barred 	by 	a
3-month 	contract 	extension 	entered 	into 	by 	CSEA 	(the 	incumbent
exclusive 	representative) 	and 	the 	Apple 	Valley 	Unified 	School
District. 	Overruling 	Alum 	Rock 	Union 	Elementary 	School 	District

(1986) 	PERB 	Order 	No. 	Ad-158 	(Alum 	Rock), 	the 	Board 	held 	that
contracts 	of 	less 	than 	120 	days 	duration 	(i.e., 	those 	which 	are
not 	long 	enough 	to 	create 	their 	own window periods) 	do 	not 	bar
representation 	petitions.
DISCUSSION
PERB 	Regulation 	32410, 	subdivision 	(a) 1 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.
CSEA 	asserts 	that, 	since 	no 	party 	had 	attacked 	the 	validity 	of
the 	Alum 	Rock 	decision, 	the 	Board's 	decision 	to 	overrule 	that
case 	constitutes 	"newly-discovered 	law'' 	about 	which 	CSEA 	should
have 	the 	opportunity 	to 	submit 	argument. 	CSEA 	then 	offers
several 	arguments 	in 	favor 	of 	retaining 	the 	approach 	set 	out 	in
Alum 	Rock. 	In 	addition, 	CSEA 	requests 	that 	the 	Board 	stay 	its
earlier 	order while 	the 	present 	reconsideration 	request 	is 	being
considered, 	in 	order 	to 	avoid 	holding 	a 	potentially 	unnecessary
election. 2
A 	reversal 	of 	precedent 	by 	the 	Board does 	not 	const~tute
''newly-discovered 	law" 	within 	the 	meaning 	of 	Regulation 	32410.
That 	provision 	of 	the 	regulation 	is 	designed 	to 	allow 	a 	party 	to
1PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 	8, 	section 	31001 	et 	seq.
2As 	of 	the 	date 	of 	this 	decision, 	the 	decertification
election 	has 	yet 	to 	be 	scheduled.
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submit 	previously 	unavailable 	legal 	authority 	which 	the 	party
believes 	would 	have 	a 	bearing 	on 	the 	Board's 	underlying 	decision.
Moreover, 	the 	Board 	is 	not 	constrained 	from 	applying 	legal
analysis 	not 	urged 	by 	the 	parties, 	or 	from 	considering 	sua 	sponte
legal 	issues 	not 	raised 	by 	the 	parties 	when 	necessary 	to 	correct
a 	serious 	mistake 	of 	law. 	(Mt. 	Diablo 	Unified 	School 	District
(1983) 	PERB 	Decision 	No. 	373, 	pp. 	39-40; 	Fresno 	Unified 	School
District 	(1982) 	PERB 	Decision No. 	208, 	pp. 	23-24.) 	Nor 	do 	we 	see
how 	CSEA 	could 	have 	been 	prejudiced 	by 	the 	Board's 	determination
that 	it 	did 	not 	desire 	briefing 	on 	the 	merits 	of 	the 	Alum 	Rock
decision.
CSEA 1 s 	remaining 	arguments 	simply 	reflect 	disagreement 	with
the 	Board's 	legal 	rationale 	for 	overruling 	Alum 	Rock. 	As 	such
claims 	do 	not 	involve 	prejudicial 	errors 	of 	fact 	or 	newly-
discovered 	evidence 	or 	law, 	but 	instead 	involve 	only 	purported
errors 	of 	law, 	they 	are 	not 	proper 	grounds 	for 	reconsideration.
(South 	Bay 	Union 	School 	District 	(1990) 	PERB 	Decision 	No. 	791a,
p. 	7; 	State 	of 	California 	(California 	Department 	of 	Forestry 	and
Fire 	Protection) 	(1989) 	PERB 	Decision 	No. 	734a-S, 	pp. 	2-3.)
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ORDER
For 	the 	reasons 	stated 	above, 	CSEA's 	request 	for
reconsideration 	of 	PERB 	Order 	No. 	Ad-209 	and 	its 	request 	for 	a
stay 	of 	that 	order 	are 	hereby 	DENIED. 3
Members 	Shank 	and 	Cunningham 	joined 	in 	this 	Decision.
3 Immediately 	prior 	to 	the 	issuance 	of 	this 	Order, 	the 	Board
received 	a 	request 	from 	the 	Apple 	Valley 	Classified 	Employees
Association, 	CTA/NEA 	(AVCEA) 	that 	the 	Board 	excuse 	the 	late
filing 	of 	its 	response 	to 	CSEA's 	request 	for 	reconsideration.
AVCEA 	claims 	that 	it 	was 	not 	served 	with 	a 	copy 	of 	CSEA's 	request
and 	was 	only 	recently 	made 	aware 	of 	it. 	As 	it 	has 	been
determined 	that 	the 	request 	for 	reconsideration 	must 	be 	denied 	on
its 	merits, 	it 	is 	unnecessary 	to 	address 	AVCEA 1 s 	late 	filing
request 	or 	consider 	its 	response 	to 	the 	request 	for
reconsideration.
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