Jefferson School District (PERB A082EA)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
JEFFERSON
	SCHOOL
	DISTRICT,
Employer,
and
JEFFERSON
	FEDERATION
	OF
	TEACHERS,
LOCAL
	3267,
	AFT, 	AFL-CIO
Employee
	Organization,
and
JEFFERSON
	CLASSROOM
	TEACHERS
ASSOCIATION, 	CTA/NEA,
Employee
	Organization,
APPELLANT.
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Case 	Nos.
	SF-D-12;
SF-D-41 	(SF-CO-6;SF-CE-33)
PERB
	Order
	No.
	Ad-82-a
Administrative
	Appeal
July
	17,
	1980
Appearances:	
Willian
	F.
	Kay,
	Attorney 	for
	Jefferson
	School
District;
	Stewart
	Weinberg,
	Attorney
	(Van
	Bourg,
	Allen,
Weinberg
	&
Roger)
	for
	Jefferson 	Federation 	of
	Teachers, 	Local
3267 	AFT, 	AFL-CIO:
	Kirsten
	L.
	Zerger, 	Attorney 	for
	Jefferson
Classroom Teachers
	Association.
Before 	Gluck, 	Chairperson;
	Moore, 	Member.
DECISION
This 	case
	is
	before 	the 	Public
	Employment
	Relations
	Board
(hereafter
	PERB
	or
	Board) 	on 	a
	request 	for 	reconsideration 	of
Jefferson
	School
	District
	(3/7/80)
	PERB
	Order
	No. 	Ad-82
	filed

by
	the
	Jefferson
	Teachers
	Association
	(hereafter
	Association)
0
The
	Board
	denies
	this
	request.
In
	Jefferson,
	a
	majority 	of
	the
	Board
	affirmed
	a
	regional
director's
	determination
	that
	pending
	unfair
	practice
	charges
should
	no
	longer
	block
	a
	decertification 	election
	in
	a
	unit
	in
which
	the 	Association
	was
	the 	exclusive
	representative.
	The
Association
	failed
	to
	win
	this 	election.	
Several
	weeks
later,
	the
	Board
	issued
	Jefferson
	School
	District
	(6/19/80)
PERB
	Decision
	No.
	133, 	finding
	that
	the
	Jefferson
	School
District
	had
	committed
	an
	unfair 	practice	
by	
refusing 	to
negotiate 	certain
	items
	within 	the
	scope
	of 	representation
	with
the 	Association.
	The
	Association 	bases
	its
	request 	for
reconsideration
	on
	the 	issuance 	of
	this
	decision.
l
PERB
	rule
	32410 	gover~s
	requests
	for
	reconsideration.
This
	rule 	provides 	in
	pertinent 	part:
Any
	party 	to
	a
	decision 	of 	the
	Board
	itself
may,
	because
	of 	extraordinary 	circumstances,
file
	a
	request 	to 	reconsider 	the 	decision
with
	the
	Board
	itself
	within
	seven
~alendardays 	following 	the 	date	
of	
service 	of 	the
2
The
	decertification 	election
	was
	conducted
	on
	May
	6,1980.
	The
	results 	of 	that 	election
	have
	not
	been
	certified
pending 	the 	resolution 	of 	objections 	to 	the
	election 	filed	
by
the 	Association.
l
PERB
	rules 	are 	codified 	at 	California 	AdministrativeCode,
	title
	8, 	section
	31000
	et
	seq.
2
2

decision.
	The
	party
	shall 	state
	with
specificity
	the
	grounds
	claimed
	and 	where
applicable
	shall
	specify
	the
	page
	of
	the
record
	relied
	upon.
In
	the
	present 	case,
	the
	Board
	finds
	no
	extraordinary
circumstances
	justifying 	either
	the 	untimely
	filing
	of
	the
Association's
	request
	for
	reconsideration	
or 	the
	request
	for
reconsideration
	itself.
	The
	possibility
	that
	the 	Association
would
	lose
	the
	decertification
	election
	and
	that
	the 	Board
would
	later
	find
	that
	the
	District
	had
	committed
	an
	unfair
practice
	against
	the
	Association
	was
	considered
	by
	the·Board
	in
reaching
	its
	decision
	in 	Jefferson,
	PERE
	Decision
	No.
	133, 	supra.
That
	these 	events 	did
	in 	fact
	occur
	does
	not
	constitute
	an
extraordinary
	circumstance
	justifying
	this
	attempt
	to 	reargue
a
	previously
	decided
	issue.
	The
	Association's 	request
	for
reconsideration
	is
	therefore
	denied.
3
By:
	Barbara
	D.
	Moore, 	Member
Chairperson 	Gluck's 	concurrence 	begins
	on 	page 	4.
The
	Association's 	request 	for 	reconsideration
	was
	filed
on
	July 	2, 	1980,
	more
	than 	three
	months
	after
	the 	time
	limit
set
	for
	such
	requests 	in
	PERB
	rule
	32410.
	PERB
	rule
	32133,which 	governs
	late 	filings,
	provides:
3
A
late 	filing
	may 	be 	excused 	in 	the
discretion 	of 	the 	Board 	only 	under
extraordinary 	circumstances.3

Harry
	Gluck,
	Chairperson, 	concurring:
I
	concur
	in
	the
	denial 	of
	this
	reques·t
	for 	reconsideration.
CTA
	has
	failed
	to
	show
	the
	requisite
	extraordinary
	circumstances
which
	would
	justify
	either
	a
	waiver
	by
	the
	Board
	of
	the 	time
limit
	imposed 	by
	rule
	32410
	or 	the
	reconsideration
	itself.
The
	"extraordinary
	circumstances"
	claimed
	by
	CTA
	is
	the
issuance
	by
	the
	Board
	itself
	of
	an
	unfair 	practice
	decision
finding
	the
	Jefferson
	School
	District
	to
	have
	violated
	EERA
	by
refusing
	to
	negotiate
	in
	good
	faith
	on 	some 	18
	separate
	CTA
proposals.
	That
	decision
	was
	issued
	after
	Ad-82,
	supra, 	upheld 	the
regional
	director's
	decision 	to
	remove 	a
	blocking 	order 	to 	the
decertification 	election
which
	may
	result
	in
	CTA's
	loss
	of
certification.
In
	its
	appeal
	of
	the 	regional
	director's
	election 	order,
	CTA
vigorously
	urged
	on
	this
	Board
	the
	ultimate 	incongruity
	that
	would
obtain
	if
	CTA
	were
	decertified
	and
	if,
	thereafter,
	its
	charges
against
	the
	District
	were
	upheld.
In
	my
	dissent 	in
Ad-82, 	I 	made
	the
	same
	point,
	though
	obviously
unsuccessfully.
	The
	majority 	in
	Ad-82 was
	thus
	fully
	aware
	of
	the
potential 	for 	the 	"extraordinary 	circumstances
11
but
	rejected 	that
possibility
	as 	negating 	the 	employees'
	opportunity 	to
	freely 	exercise
their
	choice 	of 	representative.
	Whether
	that
	conclusion
was
	correct
1
1PERB
	Order 	No. 	Ad-82, 	p. 	35,
	reads:
In 	reaching
	its
	conclusion, 	the 	majority
overlooks 	the 	potential 	incongruity 	of
issuing
	a
	final 	order 	on 	the 	unfair
4

or 	incorrect 	is 	irrelevant. 	The 	decision was 	made 	in 	contemplation
of 	the 	very 	event 	now pleaded by 	CTA 	to 	warrant 	reconsideration.
CTA, 	thus, 	brings 	nothing 	new 	to 	this 	Board's 	attention. 	That 	a
"prophesy" was 	fulfilled 	is 	not 	the 	"extraordinary 	circumstances"
contemplated by 	rule 	32410.
For 	all 	of 	the 	foregoing 	reasons, 	and 	despite my 	continued
conviction 	that 	the 	majority 	erred 	in Ad-82, 	I 	must 	now 	concur
in 	the 	rejection 	of 	CTA's 	instant 	request.
Chairperson
practice 	charge 	affirming 	the 	hearing
officer's 	finding 	that 	the 	District
unlawfully 	refused 	to 	negotiate 	27
items, 	after 	the 	decertification
election has 	been 	conducted 	and 	the
Association 	is 	decertified. 	What
remedy 	would 	the 	Board 	then 	fashion?
Such 	an 	order might 	amount 	to 	little
more 	than 	a 	declaratory 	judgment.
No 	affirmative 	obligation would 	be
imposed 	on 	the 	violator ....
5