Los Angeles Unified School District (United Teachers Los Angeles) (PERB 0860EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED TEACHERS 	- 	LOS ANGELES,
Charging Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2751
Request 	for 	Reconsideration
PERB Decision No. 	860
PERB 	Decision No. 	860a
February 	26, 	1991
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Appearances: 	Taylor, 	Roth, 	Bush & Geffner, 	by Jesus E. 	Quinonez,
Attorney, 	for United Teachers 	- Los Angeles; 	O'Melveny & Myers,
by Craig A. 	Horowitz, 	Attorney, 	for Los Angeles Unified School
District.
Before Hesse, 	Chairperson; 	Shank and Cunningham, 	Members.
DECISION
CUNNINGHAM, 	Member: 	The Los Angeles 	Unified School 	District
(District) 	requests reconsideration of PERB Decision No. 	860,
issued 	by the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
on December 	19, 	1990. 	In that decision, 	the Board affirmed and
adopted 	a proposed decision by an administrative 	law 	judge
(ALJ) 	wherein 	it was 	found that the District unlawfully and
unilaterally 	established 	the wage 	rate payable 	to 	certificated
employees 	participating 	in 	an 	after-school 	Early 	Education
Program 	(EEP) 	in violation of 	section 3543.5(b) 	and 	(c) 	of the
Educational 	Employment Relations Act1 (EERA). 	The ALJ also
1 EERA is 	codified at Government Code 	section 	3 540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Prior to January 	1, 	1990, 	section 3543.5
stated, 	in pertinent part:
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concluded 	that 	this 	matter was 	not 	subject 	to 	mandatory deferral
pursuant to 	Lake Elsinore 	School 	District 	(1987) 	PERB Decision
No. 	646. 	The Board adopted this 	conclusion on the ground that
the 	relevant 	contract provision did 	not 	"arguably prohibit" 	the
District's 	conduct in this 	instance; 	thus, 	the standard set 	forth
in Lake Elsinore 	is 	not met by these 	facts.
It 	shall be unlawful 	for a public 	school
employer to:
(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.
DISCUSSION
PERB Regulation 32410(a),2 states, 	in pertinent part:
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.
In its request for reconsideration, 	the District argues:
(1) 	there 	is 	no policy 	justification for deferral purposes
to 	distinguish between 	conduct 	"arguably prohibited" 	by 	a
collective bargaining agreement 	(CBA) 	and 	conduct 	"arguably
required" 	by a CBA; 	(2) 	several critical factual matters, 	not
considered 	in the 	PERB 	decision, 	establish that 	the 	District
2PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq.
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properly 	applied 	Section 	6.0 	of 	the 	CBA to 	the 	EEP 	and,
therefore, 	acted lawfully in this 	instance; 	and 	(3) 	in view of
the express terms of the 	"zipper clause" 	and the 	language of
Section 	6.0 	of the CBA, 	United Teachers 	- 	Los Angeles waived
its 	right 	to negotiate 	about the wage rate 	applicable 	to 	the
EEP during the 	life 	of 	the 	current CBA.
The 	District's 	first 	and third grounds 	for the 	request,
as 	referenced above, 	do not 	contend that the Board's decision
contains prejudicial 	errors 	of 	fact, 	nor do they offer newly
discovered 	evidence or 	law. 	Instead, 	the District argues 	that
the decision contains 	errors 	of 	law. 	This 	ground does 	not 	fall
within the purview of Regulation 32410(a) 	and is, 	therefore, 	an
inappropriate basis 	for this 	request.
As 	to 	the 	second ground 	for 	the 	request 	for 	reconsideration,
the 	District has 	listed ten 	factual 	statements 	allegedly 	not
considered by 	the 	Board 	in arriving 	at 	its 	substantive 	legal
conclusions in this case.
to the District's 	assertions,
however, 	all of the 	factual matters 	set 	forth in its 	request 	for
reconsideration 	are 	directly 	or 	indirectly 	referred 	to 	and
considered 	in the ALJ's 	findings 	of 	fact. 	Those 	findings were
adopted by the Board in its decision. 	Thus, 	the District's
argument 	that 	the 	Board's 	decision 	contains 	prejudicial 	errors
of 	fact must be rejected. 	Moreover, 	although the District has
couched this 	argument 	in terms 	of prejudicial 	error of 	fact,
it 	appears 	that this 	is 	actually a 	legal argument 	in that the
District claims that the relevant contract language or past
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practices permitted its 	conduct 	in this 	instance. 	Again, 	an
alleged 	error of 	law is 	not 	a proper ground 	for a request 	for
reconsideration, 	pursuant to Regulation 32410(a).
ORDER
The request 	for reconsideration of 	PERB Decision No. 	860 	is
hereby 	DENIED.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
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