Pittsburg Unified School District (PERB 0318EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	and 	its PITTSBURG
CHAPTER NO. 	44,
Charging 	Party,
v.
PITTSBURG UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	SF-CE-235
Request 	for 	Reconsideration
PERB Decision No. 	318
PERB Decision No. 	318a
April 2, 	1984
Appearances: 	Madalyn J. 	Frazzini, Attorney for California
School Employees Association and 	its Pittsburg Chapter No. 	44;
Mark W. 	Goodson, Attorney 	(Breon, 	Galgani, 	Godino & O'Donnell)
for 	Pittsburg Unified 	School 	District.
Before Tovar, Jaeger, 	and Burt, Members.
DECISION
JAEGER, 	Member: 	The Public Employment Relations Board
(PERB 	or 	Board) 	having duly considered 	the Pittsburg Unified
School District's 	(District) 	request 	for 	reconsideration
hereby grants 	that 	request 	consistent with 	the 	discussion 	below.
DISCUSSION
In Pittsburg Unified School District 	(6/10/83) 	PERB
Decision No. 	318, 	the Board 	affirmed 	the Administrative Law
Judge's 	(ALJ) 	conclusion 	and 	found 	that 	the District 	violated
subsections 3543.5(a), 	(b) 	and 	(d) 	of the Educational
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Employment Relations 	Act1 (EERA or Act) 	by unilaterally
reducing 	the 	work 	year of 	clerical employees 	from 	12 	months 	to
10 	months 	effective 	upon 	expiration of 	a collective 	bargaining
agreement between the parties, 	when 	it had 	an obligation to
remain strictly 	neutral 	and 	to maintain 	the 	status 	quo due 	to
the pendency of 	a question concerning 	representation 	(QCR).
The Board 	ordered 	the District 	to 	reinstate 	the 	status 	quo
and 	to make 	the 	affected 	employees whole 	for 	any 	losses 	they
suffered 	as 	a 	result of 	the District's 	unlawful conduct. 	It
also ordered 	the 	District 	to 	negotiate 	with 	the 	California
School Employees Association and 	its Pittsburg Chapter No. 	44
1EERA 	is 	codified 	at Government Code 	section 	3540
et 	seq. 	All 	statutory references 	are 	to 	the Government Code
unless otherwise 	specified. 	Section 3543.5 	provides 	in
pertinent part:
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.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
(d) 	Dominate or 	interfere with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join 	any organization 	in
preference 	to another.
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(Association) 	concerning 	the work year of employees. 	The
Board's 	Order 	did 	not 	specify 	either 	the 	date 	from which 	the
make-whole 	remedy would 	run or 	under 	what circumstances, 	if
any, 	the District's 	liability 	for 	back 	pay would 	be 	terminated.
PERB 	rule 	32410(a)2 	provides:
Any party 	to 	a 	decision of 	the Board 	itself
may, 	because of extraordinary circumstances,
file 	a 	request 	to 	reconsider 	the
decision. 	. 	. 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.
The District 	requests 	reconsideration 	of 	the Board's
make-whole 	remedy, 	asserting 	that 	liability 	for 	back 	pay 	should
be 	terminated when, 	after 	the QCR was 	resolved, 	the District
and 	the 	exclusive 	representative 	negotiated 	in good 	faith 	and
reached 	agreement concerning 	the 	subject matter 	of 	the
unilateral 	change.
Subsection 3541.5(c) 	of 	the Act empowers 	the Board 	"to
issue 	. 	. 	. 	[an] 	order directing an offending party to 	. . .
take 	such 	affirmative 	action 	. . . 	as 	will 	effectuate 	the
policies of 	[the Act]." 	The Board has previously 	found 	that
where 	a 	remedy will 	not 	effectuate 	the purposes 	of 	the Act,
2pERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
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reconsideration 	is 	justified. 	Delano Union Elementary School
District 	(10/15/82) 	PERB Decision No. 	213a; 	Rio Hondo Community
College District 	(5/16/83) 	PERB Decision No. 	279a.
In Rio Hondo Community College District, 	supra, 	we
determined 	that 	a 	back pay 	award 	for 	violation of 	an 	employer's
duty 	to 	negotiate 	in good 	faith 	should 	be 	terminated 	at 	the
point 	at 	which 	the 	parties 	subsequently 	reached 	agreement
concerning 	the 	subject matter 	of 	the 	unilateral 	change.
Although 	this 	case 	does 	not directly 	involve 	a violation of 	the
duty to negotiate but, 	rather, 	concerns an employer's duty 	to
maintain 	neutrality 	in the 	face of 	a pending QCR, 	it presents
an 	analogous 	situation 	to 	the Rio Hondo 	type 	of 	bargaining
case. 	In both 	instances, 	the employer 	is 	charged with the duty
not 	to make 	unilateral changes until 	it 	affords 	an exclusive
representative 	notice 	and 	an opportunity 	to 	negotiate. 	Where,
however, 	as 	a 	result of 	the 	filing 	of 	a decertification
petition, 	there 	is a pending QCR, 	there 	is no exclusive
representative 	present with which 	the 	employer 	may 	negotiate.
In such circumstances, 	the employer must 	refrain 	from making
unilateral changes 	until 	the QCR 	is 	resolved. 	Once 	the QCR 	is
resolved, 	the employer's duty to negotiate 	is 	revived. 	If,
subsequent 	to 	the 	resolution of 	the QCR, 	the exclusive
representative 	requests 	to 	negotiate 	and 	the parties 	reach
agreement 	concerning 	the 	subject matter 	of 	the 	unilateral
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change,3 employees 	are 	thereby 	restored 	to 	the position 	they
would 	have 	occupied 	had 	the 	employer 	complied with 	its 	duty 	to
maintain neutrality 	in the 	face of 	the QCR. 	It would not
effectuate 	the 	purposes of 	the Act 	to extend 	the 	terms of 	the
remedy 	beyond 	that point. 	Such 	an 	agreement would 	terminate
both 	the make-whole portion of 	the 	remedy 	and, 	inasmuch 	as 	the
parties have 	mutually agreed 	to 	alter 	the 	status quo, 	that
portion of 	the 	remedy 	ordering 	restoration of 	the 	status 	quo
ante.
For 	the 	above 	reasons, 	we 	grant 	reconsideration of 	the
Board's 	remedy 	to clarify 	the Order. 	Accordingly, 	we shall
order 	the District 	to 	restore 	the 	status quo 	ante 	and make
employees 	whole 	for 	any monetary 	losses 	they have 	suffered 	as 	a
result of 	the District's 	unlawful conduct, 	from 	the date of 	the
unilateral 	change 	until 	such 	time 	as 	the 	parties 	reach
agreement or 	negotiate 	through 	completion 	of 	the 	statutory
impasse 	procedure 	concerning 	the 	subject matter 	of 	the
District's 	unlawful 	unilateral 	change.4
3We disagree with 	the Association's 	argument 	that, 	under
Rio Hondo, 	back pay 	should 	terminate 	only when 	a 	subsequently
negotiated 	agreement 	specifically 	addresses 	the 	conduct
complained of 	in 	the 	unfair 	practice 	charge 	itself. 	In order
to 	terminate 	liability for 	back pay, 	a 	subsequently 	negotiated
agreement 	need only 	address 	the 	basic 	subject matter 	of 	the
unilateral change, 	and need not constitute 	a "waiver" 	by 	the
Association of 	its 	claim 	that 	the 	District 	acted 	unlawfully.
4In 	its 	brief 	accompanying 	its 	request 	for
reconsideration, 	the District 	claims 	that 	it 	reached 	agreement
with 	the 	exclusive 	representative 	concerning 	the 	subject matter
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of 	reductions 	in hours 	in November 	1981. 	It 	asserts 	that 	this
agreement, 	reached 	after 	the 	administrative 	law 	judge 	issued
his 	proposed 	decision, 	constitutes 	"newly discovered 	evidence"
within 	the meaning of PERB 	rule 	32410(a) 	and 	that 	the Board
should 	affirmatively 	determine 	whether 	this 	agreement 	should
terminate 	the District's 	back 	pay 	liability. 	The Association
disputes 	the District's 	interpretation of 	the November 	1981
agreement.
While we 	have 	granted 	the District's 	request 	for
reconsideration 	to clarify what we 	have 	found 	to be 	an
ambiguity 	in the Board's Order, 	we 	find 	that 	it would be
inappropriate 	for 	the Board 	to determine 	in a 	request 	for
reconsideration decision whether, 	as a factual matter, 	the
District 	has 	complied with 	that Order. 	The purpose of
requesting 	reconsideration 	on 	the 	grounds 	of 	newly 	discovered
evidence 	is 	to permit 	the Board 	to have 	access 	to evidence
which was 	unavailable 	at 	the 	time 	of 	hearing 	which 	could 	affect
the 	underlying 	determination 	that 	the 	respondent 	did 	or 	did 	not
act unlawfully. 	PERB 	rule 32410(a) 	is not 	intended 	to provide
a party with a 	forum 	in which 	to prove 	that, 	subsequent 	to the
issuance of 	a Board decision, 	it has complied 	in whole or 	in
part with 	the Board's Order. 	Such 	a claim 	is properly 	raised
in a compliance hearing, 	should one be 	required.
The District 	also 	requests 	reconsideration of 	the 	remedy on
the grounds 	that 	it had 	a 	"business 	necessity" 	excuse 	for
making 	unilateral 	changes 	and, 	therefore, 	an 	award of back pay
is 	inappropriate or, 	in the alternative, 	that the award 	should
be 	tolled 	at 	the 	time 	that 	layoffs became 	financially
necessary. 	These 	are 	arguments 	which 	the District 	asserted or
should have 	asserted 	at 	the 	hearing on 	this matter, 	and,
therefore, 	do not constitute 	the 	type of 	"extraordinary
circumstances" 	which 	justify granting 	reconsideration of 	the
Board's 	Decision. 	Livermore Valley Joint Unified School
District 	(10/21/81) 	PERB Order No. 	JR-9; 	Rio Hondo Community
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College District, 	supra; 	South Bay Union School District
(8/19/82) PERB Decision No. 	207a.
Finally, 	the District 	requests 	reconsideration on 	the
ground 	that 	it was 	prejudiced 	by delay 	in 	the Board's
processing of 	this case. 	As 	the Board 	indicated 	in Mt. 	San
Antonio Community College District 	(3/24/83) 	PERB 	Decision
No. 	297, 	delay 	in an administrative 	agency's procedures 	is 	no
basis 	upon which 	to deny employees 	a 	remedy 	for 	an employer's
illegal 	conduct. 	Quoting 	from the United States Supreme
Court's decision 	in NLRB v. 	J.H. 	Rutter-Rex Mfg. 	Co. 	(1969) 	396
U.S. 	258 	[72 LRRM 2881, 	2883], 	we noted, 	"[w]ronged employees
are at least as much harmed by the Board's delay. 	. 	. 	as 	is the
wrongdoing 	employer." 	The District's 	request 	for
reconsideration on the grounds of delay 	is, 	therefore, 	denied.
ORDER
The Order 	in Pittsburg 	Unified School District 	(6/10/83)
PERB Decision No. 	318, 	is AMENDED to read as follows:
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law and 	the entire 	record 	in this case, 	and pursuant 	to
Government Code subsection 3541.5(c), 	it 	is hereby ORDERED that
the Pittsburg Unified School District, 	board of 	trustees,
superintendent, 	and 	their 	respective 	agents 	shall:
1. 	CEASE AND DESIST 	FROM:
(a) 	Interfering with 	employees because of 	the
exercise 	of 	their 	right 	to 	freely 	select 	an 	exclusive
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representative 	to meet 	and 	negotiate 	with 	the 	employer 	by
failing 	to 	maintain 	the 	established 	work 	year 	of 	clerical
employees 	while 	a question of 	representation 	is 	pending
involving 	employees 	in 	the 	negotiating 	unit.
(b) 	Denying 	the California School Employees
Association 	its 	right 	to 	represent 	unit members 	free 	from
employer 	interference 	by 	failing 	to maintain 	the 	established
work 	year 	of 	clerical 	employees 	while 	a question of
representation 	is pending 	involving 	employees 	in 	the
negotiating 	unit.
(c) 	Encouraging 	employees 	to 	join 	an organization 	in
preference 	to 	another 	by 	failing 	to maintain 	the 	established
work 	year 	of 	clerical 	employees 	while 	a question 	of
representation 	is pending 	involving 	employees 	in 	the
negotiating 	unit.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION:
(a) 	Upon 	request, 	meet 	and 	negotiate with 	the
exclusive 	representative 	regarding 	work 	year 	reductions.
(b) 	Reinstate 	the 	12-month work 	year 	and make 	whole
the 	affected 	clerical 	employees 	in 	the 	operations 	and 	support
unit whose 	work 	year, 	pay 	and 	benefits 	were 	reduced 	from 	their
established 	12-month 	work 	year 	for 	any 	and 	all 	losses 	they 	have
suffered 	from 	the 	date 	of 	the 	unilateral 	change 	until 	the
parties 	reach 	agreement 	or 	complete 	the 	statutory 	impasse
procedure 	in 	negotiations 	concerning 	work 	year 	reductions.
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(c) 	Mail 	copies 	of 	the 	attached Notice 	to 	the
employees 	affected 	by 	the 	District's 	conduct 	within 	thirty-five
(35) 	days 	after 	service 	of 	this Decision. 	The mailing 	should
inform 	employees 	of 	reinstatement 	and 	reimbursement 	procedures.
(d) 	Within thirty-five 	(35) 	days 	after 	the 	date of
service 	of 	this 	Decision, 	prepare 	and 	post 	copies 	of 	the Notice
to Employees 	attached 	as 	an 	appendix hereto, 	signed 	by an
authorized 	agent 	of 	the 	employer. 	Such 	posting 	shall 	be
maintained 	for 	at 	least 	thirty 	(30) 	consecutive 	workdays 	at 	the
District's 	headquarters 	office 	and 	at 	all 	locations 	where
notices 	to 	classified 	employees 	are 	customarily 	posted. 	Such
Notices 	must 	not 	be 	reduced 	in 	size 	and 	reasonable 	steps 	shall
be 	taken 	to 	ensure 	that 	they are 	not 	defaced, 	altered or
covered 	by 	any material.
(e) 	Written notification of 	the 	actions 	taken 	to
comply 	with 	this 	Order 	shall 	be made 	to 	the San Francisco
Regional 	Director 	of 	the Public Employment Relations Board 	in
accordance 	with 	her 	instructions.
3. 	It 	is 	further ORDERED 	that 	the 	allegation 	that 	the
Pittsburg 	Unified 	School 	District 	violated 	Government 	Code
subsection 	3543.5(c) 	by 	the 	conduct 	at 	issue 	in 	the 	instant
case 	is 	DISMISSED.
Members Tovar 	and Burt 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO ALL 	EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After 	a hearing 	in Unfair Practice Case No. 	SF-CE-235,
California School Employees Association 	and 	its Pittsburg
Chapter No. 	44 	v. 	Pittsburg Unified School District, 	in which
all parties 	had 	the 	right 	to participate, 	it 	is 	found 	that 	the
Pittsburg 	Unified 	School 	District 	violated 	the 	Educational
Employment Relations Act, 	Government 	Code 	subsections
3543.5(a), 	(b), 	and 	(d), 	by unilaterally reducing the work year
of 	clerical 	employees 	when 	it 	had 	an obligation 	to 	remain
strictly 	neutral 	and 	to maintain 	the 	status 	quo 	due 	to 	the
pendency 	of 	a 	question 	concerning 	representation.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to post 	this
Notice 	and we 	will:
1. 	CEASE AND DESIST FROM:
(a) 	Interfering 	with 	employees 	because 	of 	the 	exercise
of 	their 	right 	to 	freely 	select 	an 	exclusive 	representative 	to
meet 	and 	negotiate 	with 	the 	employer 	by 	failing 	to maintain 	the
established 	work 	year 	of 	clerical 	employees 	while 	a 	question 	of
representation 	is 	pending 	involving 	employees 	in 	the
negotiating 	unit.
(b) 	Denying 	the California School Employees
Association 	its 	right 	to 	represent 	unit members 	free 	from
employer 	interference 	by 	failing 	to maintain 	the 	established
work 	year 	of 	clerical employees 	while 	a question 	of
representation 	is 	pending 	involving 	employees 	in 	the
negotiating 	unit.
(c) 	Encouraging 	employees 	to 	join 	an organization 	in
preference 	to 	another 	by 	failing 	to maintain 	the 	established
work 	year 	of 	clerical 	employees 	while 	a question 	of
representation 	is 	pending 	involving 	employees 	in 	the
negotiating 	unit.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTION:
(a) 	Upon 	request, 	meet 	and 	negotiate with 	the
exclusive 	representative 	regarding 	work 	year 	reductions.

(b) 	Reinstate 	the 	12-month 	work 	year 	and make whole
the 	affected 	clerical employees 	in 	the 	operations 	and 	support
unit whose 	work 	year, 	pay 	and 	benefits 	were 	reduced 	from 	their
established 	12-month 	work 	year 	for 	any 	and 	all 	losses 	they 	have
suffered 	from 	the 	date 	of 	the 	unilateral 	change 	until 	the
parties 	reach 	agreement 	or 	complete 	the 	statutory 	impasse
procedure 	in 	negotiations 	concerning 	work 	year 	reductions.
(c) 	Mail copies 	of 	the 	this Notice 	to 	the 	employees
affected 	by 	the 	District's 	conduct 	within 	thirty-five 	(35)
days 	after 	service 	of 	this 	Decision. 	The 	mailing 	should 	inform
employees 	of 	reinstatement 	and 	reimbursement procedures.
(d) 	Written 	notification of 	the 	actions 	taken 	to
comply with 	the Board's 	Order 	shall 	be made 	to 	the
San Francisco Regional 	Director 	of 	the Public Employment
Relations Board 	in 	accordance 	with 	her 	instructions.
Dated: 	PITTSBURG UNIFIED SCHOOL
DISTRICT
By
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED FOR THIRTY
(30) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE OF 	POSTING AND MUST 	NOT
BE 	DEFACED, 	ALTERED, 	REDUCED 	IN SIZE OR COVERED BY ANY OTHER
MATERIAL.
22