Chula Vista Elementary School District (PERB 1232EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CHULA VISTA ELEMENTARY 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
CHULA VISTA ELEMENTARY 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3777
Request 	for Reconsideration
PERB Decision No. 	1232
PERB Decision No. 	1232a
February 	19, 	1998
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Appearances; 	California Teachers 	Association by Rosalind D.
Wolf, 	Attorney, 	for Chula Vista Elementary Education Association,
CTA/NEA; 	Parham & Rajcic by Mark R. 	Bresee, 	Attorney, 	for Chula
Vista 	Elementary 	School 	District.
Before Caffrey, 	Chairman; 	Dyer and Jackson, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the Public Employment
Relations 	Board 	(PERB or Board) 	on 	the 	Chula Vista Elementary
Education Association, 	CTA/NEA's 	(Association) 	request 	that 	the
Board reconsider 	its 	decision 	in Chula Vista Elementary School
District 	(1997) 	PERB Decision No. 	1232 	(Chula Vista). 	In Chula
Vista, 	the Association alleged that 	the 	Chula Vista Elementary
School District 	(District) 	violated section 3543.5(a), 	(b) 	and
(c) 	of the Educational Employment Relations Act 	(EERA or Act)1
JEERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 provides, 	in relevant
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:

when 	it 	discriminated against 	four unit members 	and 	changed 	its
policy 	regarding 	the Association's 	use 	of 	District 	facsimile
machines. 	After investigation, 	the Board's Office of 	the General
Counsel 	dismissed the 	charge and refused to 	issue a 	complaint.
The Board adopted 	that 	dismissal 	in 	Chula Vista.
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
BACKGROUND
The Association's 	charge 	in Chula Vista 	can be broken 	into
two parts. 	First, 	the Association contended that 	the District
unlawfully 	discriminated against 	four unit 	employees 	because
those 	employees participated 	in activities 	protected by 	the Act.
Second, 	the Association 	contended 	that 	the District violated the
Act when 	it 	changed 	its 	policy regarding 	the Association's use 	of
District 	facsimile machines.
The 	Board 	dismissed 	the 	discrimination allegations 	because
the 	Association had 	failed 	to 	show a 	sufficient 	connection
between the 	employees' 	protected activities 	and the District's
actions. 	(See Bakersfield City School District 	(1997) 	PERB
Decision No. 	1191 at warning letter, 	p. 	2; 	Novato Unified School
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District 	(1982) 	PERB Decision No. 	210 at p. 	6.) 	The Board
dismissed 	the 	allegations 	regarding 	the 	change 	in 	facsimile
policy because 	the 	collective bargaining agreement 	(CBA) 	between
the 	parties 	contained a 	grievance 	and arbitration procedure 	which
covered 	the 	alleged 	conduct 	and 	culminated 	in binding
arbitration. 	(EERA sec. 	3541.5(a)2; 	Lake Elsinore School
District 	(1987) 	PERB Decision No. 	646 at pp. 	26-27 	(Lake
Elsinore).)
REQUEST 	FOR 	RECONSIDERATION
In its 	request 	for reconsideration, 	the Association contends
that 	the 	Board's 	decision 	in Chula Vista 	contains 	prejudicial
errors 	of 	fact because 	the Board 	failed to make a 	"determination"
regarding 	each allegation 	contained 	in 	the 	charge. 	(Citing 	EERA
sec. 	3541.3(i).)3 Specifically, 	the Association notes that the
2Section 3541.5 provides, 	in relevant part:
[T]he board shall 	not 	do either of 	the 	following:
(2) 	Issue a complaint against 	conduct also
prohibited by 	the provisions 	of 	the 	agreement
between the parties 	until 	the 	grievance
machinery of the agreement, 	if 	it exists and
covers 	the matter at 	issue, 	has been
exhausted, 	either by settlement 	or binding
arbitration.
3Section 3541.3 provides, 	in relevant part:
The board shall 	have 	all 	of 	the 	following
powers 	and duties:
(i) 	To investigate unfair practice charges
or alleged violations of 	this 	chapter, 	and
take 	such 	action and make 	such determinations
in 	respect 	of 	these 	charges 	or alleged
violations 	as 	the board deems 	necessary to
effectuate 	the policies 	of 	this 	chapter.
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charge alleged that 	the District's 	change 	in facsimile policy-
constituted both an unlawful 	unilateral 	change 	in violation 	of
EERA section 	3543.5(c) 	and unlawful 	interference with 	the
Association's 	right 	of access 	to unit members 	in violation of
EERA section 3543.5(b). 	(See EERA sec. 	3543.l(b).)4 The
Association 	contends 	that 	the Board dismissed 	the 	alleged
3543.5(c) 	(unilateral 	change) 	violation but 	failed to rule on the
alleged 3543.5(b) 	(interference) 	violation.
DISTRICT'S 	RESPONSE
The 	District 	responds 	that 	the 	Board 	thoroughly and
correctly 	ruled 	on 	each and 	every allegation 	contained 	in 	the
charge when 	it 	adopted the Board agent's 	findings 	of 	fact 	and
conclusions 	of 	law. 	The District 	contends 	that 	the Board agent
properly 	deferred both 	the 	unilateral 	change 	and 	interference
allegations 	to 	the 	CBA's 	grievance 	and arbitration machinery.
DISCUSSION
PERB Regulation 	section 	32410 	provides 	that 	a party 	to 	a
Board decision may 	request 	reconsideration on 	the 	grounds 	that
the decision contains prejudicial 	errors 	of 	fact, 	or newly
4Section 3543.1 provides, 	in relevant part:
(b) 	Employee organizations 	shall have the
right 	of 	access 	at 	reasonable 	times 	to areas
in which employees work, 	the right 	to use
institutional bulletin boards, 	mailboxes, 	and
other means of 	communication, 	subject 	to
reasonable 	regulation, 	and the 	right 	to use
institutional 	facilities 	at 	reasonable 	times
for 	the purpose 	of meetings 	concerned with
the 	exercise 	of 	the 	rights 	guaranteed by 	this
chapter.
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discovered 	evidence 	or law.5 The 	Board will 	not 	grant 	a 	request
for 	reconsideration where 	the party making the 	request 	has 	failed
to 	establish any ground set 	forth in PERB Regulation 32410. 	(See,
e.g., 	California State Employees Association. 	Local 	1000
(Janowicz) 	(1994) 	PERB Decision No. 	1043a-S at pp. 	2-3.)
Likewise, 	reconsideration is not 	appropriate where a party merely
restates 	arguments 	considered 	and 	rejected by 	the 	Board 	in 	its
underlying decision. 	(Id.; 	Regents 	of 	the University of
California 	(1990) 	PERB Decision No. 	829a-H at pp. 	2-3.)
In Chula Vista, 	the 	Board adopted 	the Board agent's 	finding
that 	CBA Article 	4 	defined the Association's 	right 	of 	access 	to
unit employees. 	In addition, 	Article 4.1.8 	of 	the CBA provides:
The Association shall 	have 	reasonable
opportunity 	to prepare 	and present 	a position
5PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et seq. 	PERB Regulation
section 32410 provides, 	in relevant 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 five 	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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in 	the 	event 	of 	any proposed policy 	change 	or
new policy.
The 	Board 	found 	that Article 	4.1.8 	of 	the 	CBA arguably prohibited
the 	conduct 	complained of by 	the Association: 	that 	the District
had 	implemented a new facsimile policy. 	Since 	the 	CBA contains 	a
grievance procedure 	ending 	in binding arbitration, 	the Board
dismissed and deferred 	that 	portion 	of 	the 	charge 	to 	the 	CBA's
grievance and arbitration procedure. 	(EERA sec. 	3541.5(a)(2).)
In its 	request 	for reconsideration, 	the Association contends
that 	the 	District's 	allegedly unilateral 	change 	in 	facsimile
policy constituted both a violation of 	EERA section 	3543.5(b) 	and
3543.5(c). 	The Association claims that, 	although the Board
dismissed the unilateral 	change allegation, 	the Board 	failed to
make 	a 	"determination" 	regarding 	the 	alleged interference
violation. 	The Association argues 	that 	this 	failure 	constitutes
a ground 	for 	reconsideration under 	PERB Regulation 	32410. 	We
disagree.
As 	the 	Board agent 	noted, 	EERA section 	3541.5(a)(2)
precludes 	the 	Board 	from 	issuing 	a 	complaint 	against 	conduct
covered by a 	negotiated 	grievance 	procedure 	culminating 	in
binding arbitration. 	(Lake Elsinore at pp. 	26-27.) 	Where such a
grievance procedure 	covers 	the 	conduct alleged in the 	charge, 	the
Board will 	defer 	to 	arbitration 	every potential 	violation
stemming 	from that 	conduct. 	(State 	of 	California 	(Department 	of
Corrections) 	(1995) 	PERB Decision No. 	1100-S at p. 	14.) 	Here,
the 	same 	conduct 	underlies 	both 	the Association's 	unilateral
change 	allegation and 	the Association's 	interference 	allegation.
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Because 	the 	CBA's 	grievance and arbitration procedure 	covers 	that
conduct, 	the 	Board properly dismissed and deferred both 	charges
to 	that procedure. 	Accordingly, 	the Association's assertion that
the 	Board 	failed 	to make 	a determination with 	regard 	to 	the
interference allegation 	is 	incorrect.
ORDER
The 	request 	for 	reconsideration 	in 	Chula Vista 	Elementary
School District 	(1997) 	PERB Decision No. 	1232 	is hereby DENIED.
Chairman 	Caffrey and Member Jackson 	joined 	in 	this 	Decision.
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