Oakland Unified School District (PERB 0236EA)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND SCHOOL EMPLOYEES ASSOCIATION,
Charging 	Party,
v.
OAKLAND UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
)
) 	Case No. 	SF-CE-400
Request 	for 	Reconsideration
PERB Decision No. 	236
PERB Decision No. 	236a
December 	31; 	1982
Appearances; 	Andrew Thomas Sinclair, 	Attorney 	for 	Oakland 	School
Employees Association; 	Ember 	Lee 	Shinn, 	Attorney 	for 	Oakland 	Unified
School District.
Before Gluck, 	Chairperson; Morgenstern and Jensen, 	Members.
DECISION
This 	case 	is 	before 	the Public Employment Relations Board
(hereafter 	Board 	or 	PERB) 	on a motion 	for 	reconsideration 	filed
by 	the 	charging 	party, 	Oakland 	School Employees Association
(hereafter OSEA). 	This Board, 	having 	duly considered 	the
request 	for 	reconsideration 	filed 	by OSEA, 	hereby 	denies 	that
request.
DISCUSSION
In Oakland Unified School District, 	(8/31/82) 	PERB Decision
No. 	236, 	the Board held, 	inter 	alia, 	that Oakland Unified
School 	District 	(hereafter 	District) 	violated 	subsections
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3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act1 (hereafter 	EERA) 	by 	its 	unilateral deferral of 2 	percent
of 	an 	8 	percent 	employee 	tax 	sheltered 	annuity 	(hereafter 	TSA)
plan 	with 	payment of 	the 	deferred 	amount 	to 	be made 	from
anticipated 	reserves 	in 	the 	subsequent 	fiscal year. 	The
hearing 	officer 	ordered 	the 	District 	to 	provide payment 	to 	the
TSA 	fund 	of 	that 	amount 	withheld 	from 	the 	time 	of 	the 	deferral
until 	present 	and 	ordered 	the 	District 	to 	make monthly 	payments
at 8 	percent 	until 	and 	unless 	a different 	timing 	schedule 	or
amount 	is 	agreed 	upon 	between 	the parties.
In 	our 	decision, 	we 	ordered 	the District 	to provide payment
to 	the 	tax 	shelter 	annuity 	fund 	(TSA) 	for 	members of 	the 	units
represented by OSEA, 	of 	that amount withheld, 	if 	any, 	from
September 	1979 	to present, 	with 	interest 	at 	the 	rate of
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq.
Subsections 3543.5(a), 	(b), 	and 	(c) 	provide as follows:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(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) 	Refuse or 	fail 	to meet and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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7 	percent 	per 	annum, 	and 	henceforth 	make 	its TSA 	contributions
at 8 	percent 	in 	accordance with past practice, 	pursuant 	to 	its
collective 	negotiating 	agreement 	with 	OSEA 	rather 	than 	on 	a
monthly basis, 	as 	ordered 	by 	the hearing officer.
To demonstrate 	that 	reconsideration 	is 	warranted 	under 	PERB
rule 	32410,2 	OSEA must 	show 	the 	existence 	of 	"extraordinary
circumstances." 	Livermore Valley 	Joint 	Unified 	School 	District
(10/21/81) 	PERB Order No. 	JR-9. 	OSEA contends 	that 	the Board's
Order 	specifying 	that 	the District make 	payment of 	interest 	at
the 	rate 	of 	7 	percent per 	annum of 	the 	amount withheld 	by 	the
District 	actually 	benefits 	the District. 	OSEA 	argues 	that 	this
2 PERB 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31000 	et 	seq. 	Unless
otherwise 	specified, 	all 	reference 	shall be 	to 	the
Administrative 	Code.
Section 32410 provides, 	in pertinent part:
(a) 	Any party 	to a 	decision of 	the Board
itself may, 	because of extraordinary
circumstances, 	file a 	request 	to 	reconsider
the decision 	within 20 	days 	following 	the
date of 	service of 	the 	decision. 	An
original and 	5 	copies of 	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 	on. 	Service
and 	proof of 	service 	of 	the 	request 	pursuant
to Section 	32140 	are 	required. 	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.
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Order 	allows 	the 	District 	to pay 	less 	interest 	than 	it 	would
otherwise 	be 	required 	to3 	and 	therefore 	the 	District 	is
benefiting 	by 	its 	wrongdoing.
This 	argument 	does 	not 	claim 	errors 	of 	law 	or 	fact 	or 	newly
discovered 	evidence 	which 	would 	bear 	on 	the 	Board's 	Order.
OSEA 	simply 	disagrees 	with 	the 	remedy 	PERB 	provided. 	But, 	the
hearing 	officer's 	proposed 	order 	included 	no 	interest 	payment
whatsoever, 	yet 	OSEA 	did 	not 	raise 	that 	issue 	in 	its 	exceptions
to 	his 	decision.4 Neither 	a 	party's 	disagreement 	with 	PERB's
3 OSEA 	asserts 	that 	a 	rate 	of 	interest 	is 	paid 	which 	is
set 	by 	the 	contract 	between 	the 	Board 	of 	Trustees 	and 	Union
Mutual, 	and 	this 	rate 	is 	considerably higher 	than 7 	percent.
4 Section 	32300 	provides:
(a) 	A 	party may 	file 	with 	the Board 	itself
an 	original 	and 	five 	copies 	of 	a 	statement
of 	exceptions 	to 	a Board 	agent's 	proposed
decision 	issued 	pursuant 	to 	Section 	32215,
and 	supporting 	brief, 	within 	20 	days
following 	the 	date 	of 	service 	of 	the
decision 	or 	as provided 	in 	Section 	32310.
The 	statement 	of 	exceptions 	and 	briefs 	shall
be 	filed 	with 	the 	Board 	itself 	in 	the
headquarters 	office. 	Service 	and 	proof of
service 	of 	the 	statement 	and 	brief 	pursuant
to 	Section 	32140 	are 	required. 	The
statement 	of 	exceptions 	shall:
(1) 	State 	the 	specific 	issues 	of
procedure, 	fact, 	law or 	rationale
to 	which 	each 	exception 	is 	taken;
(2) 	Identify 	the 	page 	or 	part of
the 	decision 	to 	which 	each
exception 	is 	taken;
(3) 	Where possible, 	designate 	by
page 	citation 	or 	exhibit 	number
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discretionary 	judgment 	nor 	its 	effort 	to 	accomplish 	what 	it
initially 	neglected 	to do constituted 	"extraordinary
circumstances" 	which warrant 	reconsideration. 	OSEA's 	request
is DENIED.
the portions 	of 	the 	record 	relied
upon 	for 	each 	exception;
(4) 	State 	the grounds 	for 	each
exception.
(b) 	No 	reference 	shall 	be made 	in 	the
statement of 	exceptions 	to 	any 	matter
not 	contained 	in 	the 	record 	of 	the 	case,
(c) 	An 	exception 	not 	specifically
urged 	shall 	be 	waived.
ORDER
The 	request 	by 	the 	Oakland 	School Employees Association
that 	the 	Public 	Employment 	Relations Board 	grant
reconsideration 	of 	Oakland Unified 	School 	District, 	(8/31/82)
PERB Decision No. 	236 	is 	DENIED.
By 	the BOARD.
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