Healdsburg Union Elementary School District (PERB 1033EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
HEALDSBURG 	AREA 	TEACHERS
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
HEALDSBURG 	UNION 	ELEMENTARY
SCHOOL DISTRICT,
Respondent.
) 	Case No. 	SF-CE-1494
Request 	for Reconsideration
PERB Decision No. 	1033
PERB Decision No. 	1033a
April 11, 	1994
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Appearances: 	California Teachers Association by Ramon E. 	Romero,
Attorney, 	for Healdsburg Area Teachers Association, 	CTA/NEA;
Atkinson, 	Andelson, 	Loya, 	Ruud & Romo by Todd A. 	Goluba,
Attorney, 	for Healdsburg Union Elementary School District.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations Board 	(PERB 	or Board) 	on a 	request 	for reconsideration
filed by 	the 	Healdsburg Union Elementary 	School 	District
(District) 	of 	the Board's 	decision 	in Healdsburg Union Elementary
School District 	(1994) 	PERB Decision No. 	1033. 	In that decision
the Board found that 	the District violated section 3543.5(a), 	(b)
and 	(c) 	of the Educational Employment Relations Act 	(EERA)1 by
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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
)
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unilaterally 	requiring 	kindergarten 	teachers 	to 	supervise
students 	for 	15 	minutes prior to 	the 	start 	of 	the 	instructional
day.
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.
DISCUSSION
PERB Regulation 32410(a)2 states, 	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.
In PERB Decision No. 	1033, 	the Board concluded that 	the
District 	unlawfully 	extended 	the workday when 	it 	added a morning
supervision 	requirement 	to 	the 	teaching-related 	tasks performed
by 	the kindergarten 	teachers 	prior 	to 	the beginning 	of 	the
instructional day. 	In its 	request 	for reconsideration, 	the
District 	contends 	that 	the 	decision 	contains prejudicial 	errors
of 	fact 	because 	the District 	did not 	expressly 	require 	the
kindergarten 	teachers 	to perform specific 	tasks 	each morning.
Assuming 	that 	it 	had 	required employees 	to perform various 	tasks,
the District 	argues 	that 	the decision 	contains 	no 	facts
indicating that 	it was 	impossible 	for these 	tasks 	to have been
2PERB 	regulations are 	codified at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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performed at 	other times during the 	teachers' 	workday.
In its 	request 	for reconsideration, 	the District 	essentially
reargues 	the 	evidence which was 	previously 	considered by 	the
Board 	in 	the underlying decision. 	Kindergarten 	teachers
Charlotte McGannon 	(McGannon) 	and Carol Novak 	(Novak) 	testified
about 	the various 	teaching-related duties 	performed 	each morning
before 	the 	instructional 	day began. 	These 	included tasks 	such as
copying classroom materials, 	checking for messages, 	contacting
parents 	and 	conferring with 	other 	teachers 	or 	the principal.
McGannon and Novak also 	testified 	that 	it 	would be 	difficult 	or
impossible 	to 	accomplish 	these 	responsibilities 	at 	other 	times
of 	the day. 	For example, 	the instructional 	schedule of 	the
kindergarten 	teachers 	differed 	from that 	of 	the 	first 	and 	second
grade 	teachers making 	it 	difficult 	to 	contact 	them during 	the
instructional 	day.
The District's 	arguments 	fail 	as 	there 	is no evidence 	in the
record 	that 	the 	District 	rebutted McGannon and Novak's 	testimony
that 	the 	new supervision assignment 	was 	in addition 	to 	the
various 	tasks 	performed by 	the 	kindergarten 	teachers 	each
morning. 	Nor did the District 	attempt 	to 	overcome 	the 	testimony
that 	these 	duties 	could not 	be performed during 	the 	instructional
workday. 	The 	record 	is 	simply devoid of 	any evidence which would
overcome 	the 	testimony of McGannon and Novak.
ORDER
The District has 	not 	established that 	the Board's 	decision
contains prejudicial 	errors of 	fact, 	or that there 	is newly
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discovered 	law 	or 	evidence 	which would 	support 	reconsideration
of 	the decision by the Board. 	Accordingly, 	the District's
request 	for reconsideration in Case No. 	SF-CE-1494 	is hereby
DENIED.
Member Carlyle 	joined in 	this 	Decision.
Member Caffrey's 	concurrence begins 	on page 	5.
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CAFFREY, Member, 	concurring: 	While I continue to support the
position 	stated 	in my 	concurrence 	and dissent 	in Healdsburg Union
Elementary School District (1994) 	PERB Decision No. 1033, 	I believe
that 	the 	Healdsburg Union 	Elementary 	School 	District's 	(District)
request for reconsideration of that decision essentially represents
a request to reargue the case. 	Therefore, 	I concur that the Public
Employment 	Relations 	Board's 	standard 	for 	reconsideration 	of 	the
decision 	has 	not 	been 	met 	and 	the 	District's 	request 	should 	be
denied.
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