Oakdale Union Elementary School District (PERB A046E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
OAKDALE 	UNION 	ELEMENTARY 	SCHOOL 	DISTRICT
Employer,
and
OAKDALE 	UNION 	ELEMENTARY 	TEACHERS
ASSOCIATION
Employee 	Organization,
APPELLANT.
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) 	Case 	No. 	S-R-23
PERB 	Order 	No. 	Ad-46
Administrative 	Appeal
September 	13, 	1978
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_____________________ )
Appearances: 	Myron 	Lieberman, 	Representative 	for 	Oakdale 	Union
Elementary 	School 	District; 	and 	Mark 	S. 	Lewis, 	President 	of
Oakdale 	Union 	Elementary 	Teachers 	Association.
Before 	Gluck, 	ctairperson; 	Gonzales 	and 	Cossack 	Twohey, 	Members.
DECISION
The 	Oakdale 	Union 	Elementary 	Teachers 	Association
(hereafter 	Association) 	has 	appealed 	the 	Sacramento 	regional
director's 	decision 	to 	deny 	its 	request 	for 	post-factfinding
mediation 	between 	the 	Association 	and 	the 	Oakdale 	Union
Elementary 	School 	District 	(hereafter 	District). 	The 	Public
Employment 	Relations 	Board 	(hereafter 	Board) 	affirms 	the
regional 	director's 	decision.
FACTS
The 	District 	voluntarily 	recognized 	the 	Association 	on
July 	1, 	1976, 	and 	the 	parties 	negotiated 	an 	initial 	contract
which 	expired 	June 	30, 	1977. 	They 	began 	negotiating 	for 	a 	new

contract 	on 	May 	5, 	1977, 	but 	after 	over 	30 	hours 	of
negotiation, 	were 	unable 	to 	reach 	agreement. 	On 	October 	11,
1977, 	the 	parties 	requested 	the 	regional 	director 	to 	declare 	an
impasse 	and 	appoint 	a 	mediator 	pursuant 	to 	Educational
Employment 	Relations 	Act 	(hereafter 	EERA) 	section 	3548 1 .
The 	mediator 	met 	with 	the 	District 	and 	the 	Association
until 	February 	22, 	1978, 	at 	which 	time 	he 	recommended
2factfinding 	pursuant 	to 	section 	3548.1 	The 	disputed 	issues
submitted 	to 	the 	factfinding 	panel 	were 	salary, 	duration 	of
agreement, 	grievance 	procedure, 	no 	strike 	clause, 	leaves 	of
lThe 	EERA 	is 	codified 	at 	Gov. 	Code 	sec. 	3540 	et 	seq. 	All
statutory 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.
Sec. 	3548 	p~ovides 	in 	pertinent 	part:
Either 	a 	public 	school 	employer 	or 	the
exclusive 	representative 	may 	declare 	that 	an
impasse 	has 	been 	reached 	between 	the 	parties
in 	negotiations 	over 	matters 	within 	the
scope 	of 	representation 	and 	may 	request 	the
board 	to 	appoint 	a 	mediator 	for 	the 	purpose
of 	assisting 	them 	in 	reconciling 	their
differences 	and 	resolving 	the 	controversy 	on
terms 	which 	are 	mutually 	acceptable. 	If 	the
board 	determines 	that 	an 	impasse 	exists, 	it
shall, 	in 	no 	event 	later 	than 	five 	working
days 	after 	the 	receipt 	of 	a 	request, 	appoint
a 	mediator 	in 	accordance 	with 	such 	rules 	as
it 	shall 	prescribe •.••
2sec. 	3548.1 	provides:
If 	the 	mediator 	is 	unable 	to 	effect
settlement 	of 	the 	controversy 	within 	15 	days
after 	his 	appointment 	and 	the 	mediator
declares 	that 	factfinding 	is 	appropriate 	to
the 	resolution 	of 	the 	impasse, 	either 	party
may, 	by 	written 	notification 	to 	the 	other,
request 	that 	their 	differences 	be 	submitted
to 	a 	factfinding 	panel. 	Within 	five 	days
2

absence, 	hours, 	class 	size, 	adjunct 	duties, 	mileage, 	the
inclusion 	of 	a 	Jarvis-Gann 	clause, 	negotiation 	procedures,
retroactivity, 	placement 	on 	salary 	schedule, 	and 	school
calendar. 	The 	factfinding 	panel 	held 	hearings 	on 	April 	24 	and
25, 	1978, 	and 	issued 	its 	report 	on 	June 	5, 	1978. 	Afterwards,
two 	fruitless 	negotiation 	sessions 	were 	held. 	The 	Association
then 	asked 	the 	mediator 	to 	return 	for 	post-factfinding
me 	.	d 	t'	1a 	10n. 3 	When 	the 	mediator 	contacted 	the 	District 	about
continuing 	mediation, 	the 	District 	said 	that 	it 	did 	not 	wish 	to
participate 	in 	any 	further 	mediation.
The 	Association, 	after 	being 	notified 	by 	the 	mediator 	of
the 	District's 	position, 	requested 	the 	Sacramento 	regional
office 	to 	order 	mediation. 	A Board 	agent 	discussed 	the
situation 	in 	Oakdale 	with 	the 	original 	mediator, 	the
chairperson 	of 	the 	factfinding 	panel, 	the 	District
superintendent, 	the 	president 	of 	the 	Association, 	and 	a
after 	receipt 	of 	the 	written 	request, 	each
party 	shall 	select 	a 	person 	to 	serve 	as 	its
member 	of 	the 	factfinding 	panel. 	The 	board
shall, 	within 	five 	days 	after 	such
selection, 	select 	a 	chairman 	of 	the
factfinding 	panel. 	The 	chairman 	designated
by 	the 	board 	shall 	not, 	without 	the 	consent
of 	both 	parties, 	be 	the 	same 	person 	who
served 	as 	mediator 	pursuant 	to 	Section 	3548.
3The 	EERA provides 	for 	post-factfinding 	mediation 	in
sec. 	3548.4, 	which 	states:
Nothing 	in 	this 	article 	shall 	be 	construed
to 	prohibit 	the 	mediator 	appointed 	pursuant
to 	Section 	3548 	from 	continuing 	mediation
efforts 	on 	the 	basis 	of 	the 	findings 	of 	fact
and 	recommended 	terms 	of 	settlement 	made
pursuant 	to 	Section 	3548.3.
3

California 	Teachers 	Association 	field 	representative. 	Based 	on
the 	information 	gathered 	from 	these 	discussions, 	the 	regional
director 	denied 	post-factfinding 	mediation 	on 	June 	28, 	1978.
DISCUSSION
Section 	3548.1 4 does 	not 	maDdate 	post-factfinding
mediation; 	it merely 	authorizes 	its 	occurrence. 	A party, 	after
participating 	in 	good 	faith 	in mandatory mediation 	and
factfinding, 	may 	not 	wish 	to 	continue mediation., 	In 	that 	case,
when 	the 	other 	party 	requests 	further 	mediation, 	the 	Board
should 	carefully 	examine 	the 	situation 	in 	order 	to 	determine
whether 	post-factfinding 	mediation 	would 	be 	fruitful 	in 	the
face 	of 	expressed 	resistance 	from 	one 	of 	the 	parties.
Mediation 	cannot 	require 	unwilling 	parties 	to 	reach
-
agreement; 	it 	can 	help 	them 	to 	do 	so 	by 	clarifying 	issues 	and
enhancing 	communication. 	After 	factfinding, 	mediation 	may 	no
longer 	be 	useful 	since 	the 	issues 	have 	been 	clarified, 	and 	each
party 	knows 	where 	the 	other 	stands. 	To 	impose 	mediation 	on 	a
resisting party 	in 	that 	situation 	could 	be 	a 	waste 	of 	time 	and
resources. 	In 	addition, 	it 	would 	allow 	the 	party 	seeking
mediation 	to 	prolong 	impasse 	procedures 	indefinitely. 	At 	some
point, 	a 	district 	or 	an 	employee 	organization 	should 	be 	able 	to
call 	a 	halt 	to 	fruitless 	post-factfinding 	efforts.
A determination 	of 	whether 	further 	mediation 	would 	be
productive 	requires 	knowledge 	of 	the 	negotiating 	history 	of 	the
4Ante, 	fn. 	3.
4

parties
	and
	their
	current
	relationship.
	This
	knowledge
	is
	best
available
	to
	the
	regional
	directors
	and
	their
	staffs,
	who
	are
in
	direct
	contact
	with 	both
	the
	parties
	and
	involved
	neutrals.
The 	Board
	therefore
	finds
	that
	the
	decision
	as
	to
	whether
post-factfinding
	mediation
	would
	be
	beneficial
	to 	the
	parties
in 	helping
	them
	reach
	agreement
	is
	best
	left
	to 	the
	discretion
of 	the 	regional
	director
	after 	satisfactory 	investigation.
In
	this
	case,
	the
	regional
	office
	staff
	made 	a
	careful
investigation,
	discussing 	the 	circumstances
	with 	both
	the
parties
	and
	the
	neutrals.
	From
	the
	discussions,
	the
	regional
director
	decided
	that 	further
	mediation
	would
	neither
	help 	the
parties'
	relationship
	nor
	further
	their
	reaching 	agreement.
	He
therefore
	denied
	post-factfinding
	mediation.
	The
	Board
	affirms
that
	decision
•.
However,
	the
	Board
	expressly 	disapproves
	that 	part
	of 	the
regional
	director's
	rationale
	in
	which 	he
	states 	that
	"
•••
one
of
	the
	factors
	to
	be
	considered
	is
	the 	question 	of
retroactivity
	for
	certificated 	salaries
	which 	must 	be
	answered
by
	July 	1,
	1978
...
" 	The 	Board 	does
	not 	decide 	whether 	or 	not
retroactive 	salary 	increases
	must 	be
	granted 	during 	the
	fiscal
year.
	Since
	retroactivity
	was
	not 	the 	only
	subject
	the
	parties
had
	not 	yet 	resolved, 	the
	Board
	finds 	the 	legal 	status
	of
retroactivity 	irrelevant
	to
	a
	determination 	of 	whether
post-factfinding 	mediation
	would 	be
	productive.
	The
	real 	issue
is
	whether 	such 	mediation 	will 	help 	the 	parties
	reach
agreement. 	The
	regional 	director 	determined 	that 	it
	would
	not,
and 	the 	Board 	affirms 	this 	determination 	as 	within 	his
discretion. 
5

ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
The
	Sacramento
	regional
	director•s
	decision
	to
	deny
post-factfinding
	mediation
	between
	the
	Oakdale
	Union
	Elementary
School
	District
	and
	the
	Oakdale
	Union
	Elementary 	Teachers
Association
	is
	affirmed.
GlGck,
	Chairperson
(,fo/ilou
	Cossack
	Twohey,
	Membe&
6

STATE OF
CALIFORNIA
PUBLJC
	EMPLOYMENT
RELAilONS
	BOARD
.-Socromento Regional Office
923 12th Street, Suite 300
Sacrcmento, California 	95814
(916) 322-3198
CERTIFIED
MAIL
June
28, 	1978
Mr.	
Mark
S.
	Lewis
,-p
	.d
res
i
	en
t
Oakdale
Union
Elementary1314 :Huirswood
Way
Modesto,	
CA
	95355
,
,,,,--
;.	
"'
_,j,,.,o,c.i'!:- ,..;... 0..
~-
SQQQQ•
Dt&triet
Dear Mr. 	Lewis:
EDMUND G. SROWN
JR.,
Go,ernor
Based upon
	the
circumstances
sun-ounding
	the
	investigation
of the
negotiations
in the
	Oakdale Union
Elementary School
District,
	post-factfinding
mediation
is
denied.
	Since
one
of the
factors
	to
be
considered
	is
	the
question
of
retro-activity
for
	certificated salaries
which
must'be
answered by
July 1,
	1978,
	we
find
	that 	post-factfinding
mediation
would
not
be
beneficial
for 	the
	negotiatingprocess
	in
	the
Oakdale Union
Elementary School
District.,
This
	position
was
	reached
	from
consultation
with the previously appointed
conciliator,
	chairperson of
	th,e
factfinding
	panel,
	district
superintendent,
local
	president of the
teacher's
organization,
	and
	California Teacher's
Association
field
	representative.
Notice
	is also
	given
that
any
party
may
obtain
a
	review
of
	this
action
	by
filing
	an
appeal with
Mr.
	Charles Cole, 	Executive
Director,
	923 -
	12th
Street,
Suite
	201, 	Sac~amento,
	CA
	95814. 	The
appeal
must be
	filed
within ten calendar
days 	ending on
July
8,
	1978. 	The
appeal should
contain
a
complete
statement
setting
	forth 	the
facts
	and
reasoning
	upon which
	the appeal
is
based. 	Copies
of
any
appeal
must be
served
upon
all
other
	parties
	to 	the
action.
Sincer ely,~
WILLIAf1
:	
ROWN
Regionqfyi.ccI,
r'
By_
~ramento
Regional
	Representative
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