South San Francisco Unified School District (PERB 0830E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SOUTH 	SAN 	FRANCISCO 	UNIFIED
SCHOOL 	DISTRICT,
Charging 	Party,
v.
SOUTH 	SAN 	FRANCISCO CLASSROOM
TEACHERS ASSOCIATION, 	CTA/NEA,
Respondent.
Case No. 	SF-CO-381
PERB Decision No. 	830
July 	26, 	1990
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Appearances: 	Teresa R. 	Tracy and Cynthia M. 	Walker, 	Attorneys,
for South San Francisco Unified School District; 	A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for South San Francisco Classroom
Teachers Association, 	CTA/NEA.
Before Shank, 	Camilli and Cunningham, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the 	South
San Francisco 	Unified School 	District 	(District) 	of 	a Board
agent's 	dismissal 	of 	its 	charge 	filed against 	the 	South
San Francisco Classroom Teachers Association, 	CTA/NEA
(Association).
In its 	charge, 	the District alleged that the Association
violated 	the public 	notice provisions 	of 	the 	Educational
Employment Relations Act 	(EERA)1 when it proposed, 	during
JEERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government Code. 	Specifically, 	the District alleged the
Association violated EERA 	section 	3547(d) 	which provides:
New 	subjects 	of 	meeting 	and 	negotiating
arising 	after the presentation of 	initial
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mediation, 	that the 	contract 	settlement 	for the 	1989-90 	school
year 	include 	salary provisions 	for the 	1990-91 	school year. 	The
gravamen of 	the District's 	charge was 	that the Association had
not 	included 	the 	salary proposal 	for the 	1990-91 	school 	year 	in
its 	original 	sunshine package 	and 	had made 	no public 	presentation
of 	its proposal 	to 	expand the 	scope of negotiations 	to 	include
salary provisions 	for 	1990-91 	prior 	to 	making 	that proposal
during mediation. 	After 	giving 	the 	District an opportunity 	to
amend 	its 	charge, 	and having received no 	amended 	charge 	from 	the
District, 	the 	Board agent dismissed the 	charge 	for 	failure 	to
state a prima 	facie 	case.
We have reviewed the entire record 	in this 	case, 	including
the District's 	appeal2 and the Association's 	opposition thereto
and, 	for the reasons 	set 	forth below, 	affirm the decision of the
Board 	agent 	dismissing 	the 	charge.
DISCUSSION
As 	noted above, 	the gravamen of the District's 	charge 	is
that 	the Association violated 	the public 	notice 	requirements
when, 	during a mediation session, 	it presented a 	salary proposal
proposals 	shall 	be made public 	within 	24
hours. 	If a vote 	is taken on such subject by
the public 	school employer, 	the vote thereon
by 	each member voting 	shall 	also be made
public within 24 hours.
2The 	District 	also 	filed a reply to 	the Association's
opposition on June 	12, 	1990. 	As 	PERB regulations do not provide
for the 	filing of 	a reply to a 	statement 	in opposition to an
appeal 	of dismissal, 	we do not consider the reply 	in the
disposition of this 	appeal. 	(See PERB Regulation 32635. 	PERB
Regulations 	are 	codified at California Administrative Code, 	title
8, 	section 31001 	et 	seq.)
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that had not been previously 	sunshined. 	It 	is well 	established
that 	public 	notice 	complaints 	shall 	not 	be 	adjudicated 	in the
context 	of 	unfair practice proceedings, 	but must be 	filed 	in
accordance with 	regulations 	governing public 	notice 	complaints.
(PERB Regulations 	32900-32960; 	Los Angeles 	Community College
District 	(1983) 	PERB Decision No. 	309, pp. 	4-5; 	Los Angeles
Community College District 	(1981) 	PERB Decision No. 	167.) 	Thus,
even assuming 	arguendo 	that 	the Association's 	conduct 	violated
EERA 	section 	3547(d),3 this 	Board has 	no authority 	in an unfair
practice proceeding to 	render a 	decision 	concerning 	a possible
public 	notice 	violation.
While 	this 	Board may be without 	authority 	to 	find 	a
violation of 	EERA 	section 	3547(d) 	in an unfair practice
proceeding, 	the 	Board has 	found 	compliance with public 	notice
requirements 	to 	be 	a 	factor which may be 	considered 	in 	evaluating
whether 	a party 	has 	been acting 	in good 	faith during 	the
negotiations process. 	(See Oakland 	Unified 	School 	District
(1983) 	PERB Decision No. 	326, 	p. 	40.) 	In a proper case, 	a
party's 	failure 	to 	comply with public 	notice 	requirements 	might
also 	be 	a 	consideration 	in determining whether 	that party 	is
participating 	in good 	faith 	in the 	impasse procedures. 	In this
3The Association contends, 	in its response to the District's
appeal, 	that EERA section 3547(d) 	imposes 	a duty upon the public
school employer, 	but not upon the exclusive representative. 	The
statutory 	language 	is 	unclear as 	to whether the 	exclusive
representative 	is 	a proper party respondent 	in a 	3547(d)
complaint, 	the Board 	itself has 	not 	specifically decided the
issue, 	and we need not address 	the 	issue here as we 	find the
charge defective on other grounds.
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case, 	however, 	the District did not, 	in its charge, 	specifically
allege 	that 	the Association 	failed 	to participate 	in good 	faith
in the 	impasse procedures. 	Neither did the 	District 	set 	forth
any other 	factual 	allegations 	that, 	considered together with 	the
failure 	to 	sunshine allegation, 	would 	support 	a 	finding that 	the
Association 	failed 	to participate 	in good 	faith 	in 	the 	impasse
procedures 	in violation of EERA section 3543.6(d).4
Significantly, 	the Board agent alerted the 	District 	to this
deficiency but the District, 	when given the opportunity to do 	so,
did not 	amend 	its 	charge.
In its 	appeal, 	the District argues 	for the first time that
the alleged 	conduct by the Association constitutes 	a per 	se
violation of EERA 	section 3543.6(d). 	The District now contends
that by proposing, 	during mediation, 	that the parties 	agree to
salaries 	for 	1990-91, 	without first sunshining that proposal, 	the
Association was 	asking the 	District to 	negotiate 	a proposal 	it
could not 	lawfully negotiate. 	The District 	contends 	that, 	by
this 	conduct, 	the Association insisted to 	impasse on a 	non-
mandatory 	subject 	of 	bargaining 	and 	committed 	a per 	se 	violation
4section 3543.6(d) 	states:
It 	shall 	be unlawful 	for an employee
organization to:
(d) 	Refuse to participate 	in good 	faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
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of 	the duty to participate 	in good 	faith 	in the 	impasse
procedures.55
PERB 	Regulation 	32635 	sets 	forth the procedures 	for Board
review of 	a dismissal 	of 	an unfair practice 	charge by a 	Board
agent. 	Subdivision 	(b) 	provides:
Unless good cause 	is 	shown, 	a charging party
may not present 	on 	appeal 	new charge
allegations 	or 	new 	supporting 	evidence.
The purpose of PERB Regulation 	32635(b) 	is 	to require the
charging party to present 	its 	allegations 	and 	supporting 	evidence
to 	the Board agent 	in the 	first 	instance, 	so that the Board agent
can 	fully 	investigate the 	charge prior to 	deciding whether 	to
issue a 	complaint or dismiss 	the case. 	In the 	instant case, 	the
District is attempting, 	through its appeal, 	to amend its unfair
practice charge to allege, 	for the 	first time, 	a per se violation
of EERA 	section 3543.6(d). 	The District has offered no good
cause 	for 	its 	failure to present this 	new legal 	allegation,
together with 	supporting 	factual 	allegations, 	in its 	original
charge or 	in an amended 	charge.6 Thus, 	we 	find that the
5The 	District 	cites 	Lake 	Elsinore 	School 	District 	(1986)
PERB Decision No. 	603 	and Modesto City Schools 	(1983) 	PERB
Decision No. 	291 	and argues 	that the principles 	set 	forth therein
apply by 	analogy to the 	instant 	case.
The 	Board has 	not yet determined whether the 	failure 	to
sunshine a proposal 	constitutes 	a 	"per 	se" 	violation of 	the duty
to participate 	in good 	faith 	in the 	impasse procedures. 	As we
dismiss 	this 	case on procedural grounds, 	we need not decide 	this
issue here.
6Since we 	find 	that 	the 	District's 	allegations 	of 	a
violation of 	EERA 	section 	3543.6(d) 	were 	not properly raised
before the Board agent, 	we do not decide whether, 	if properly
raised, 	they would 	state a prima 	facie case.
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District's 	appeal 	does 	not have merit and that the 	Board 	agent
acted properly 	in dismissing 	the 	unfair practice 	charge.
ORDER
Based upon the 	entire 	record 	in this 	case, 	and 	consistent
with the discussion above, 	it 	is hereby ORDERED that the unfair
practice charge 	in Case No. 	SF-CO-381 	is 	DISMISSED WITH
PREJUDICE.
Members 	Camilli 	and Cunningham 	joined 	in 	this 	Decision.
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