Decision 2904Ea – Clovis Unified School District

An employer must make a diligent effort if it hopes to erase the effects of its interference via an “honestly given retraction.” (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 31.) Indeed, a retraction is irrelevant unless it is: (1) timely; (2) unambiguous; (3) specific in nature to the coercive conduct; (4) free from other illegal conduct; (5) adequately publicized to the affected employees; (6) not followed by other illegal conduct; and (7) accompanied by assurances the employer will not interfere with protected rights in the future. (Ibid.) The District’s partial, tardy actions to pull back on conduct which tended to influence employee free choice of bargaining representative did not meet any of the above criteria, much less all of them. (pp. 15-17.)

While a Board agent has authority to receive evidence by declaration if warranted (City of Santa Clara (2016) Decision No. 2476-M, pp. 9-10), witness evidence tends to be more dependable when it is subject to cross-examination. (p. 7, fn. 4.)

A party who has failed to file exceptions may not use a reconsideration request “to make up for shortcomings in their previous filings.” (Alliance College-Ready Public Schools, et al. (2018) PERB Decision No. 2545a, p. 5.) (p. 6.)

Requests for reconsideration are subject to the strict standard set forth in PERB Regulation 32410. A request for reconsideration may be filed because of extraordinary circumstances. The grounds for requesting reconsideration are limited to claims that: (1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence. A request for reconsideration based upon the discovery of new evidence must be supported by a declaration under the penalty of perjury which establishes that the evidence: (1) was not previously available; (2) could not have been discovered prior to the hearing with the exercise of reasonable diligence; (3) was submitted within a reasonable time of its discovery; (4) is relevant to the issues sought to be reconsidered; and (5) impacts or alters the decision of the previously decided case. (PERB Reg. 32410(a).) (p. 4.)

An error or omission in a remedial order can be a proper subject of reconsideration under the newly discovered evidence standard. (County of Ventura (2021) PERB Decision No. 2758a-M, p. 2.) However, this represents “a narrow avenue” allowing corrections to inadvertent errors, and it “does not allow parties to reassert remedy arguments that [the Board has] already considered and rejected.” (Id. at pp. 2-3; see also id. at p. 3, fn. 2 [reconsideration request is proper where certification order included an incorrect classification, backpay order mistakenly began relief on day of termination rather than day of administrative leave, or PERB otherwise made an inadvertent remedial error].) Thus, whether a reconsideration request focuses on the Board’s remedy or any other aspect of a Board decision, a party may not use the reconsideration process “to register its disagreement with the Board’s legal analysis, to re-litigate issues that have already been decided, or simply to ask the Board to try again.” (Id. at p. 3 [internal quotation marks and citations omitted].) (pp. 4-5, 36.)

The District’s reconsideration request was procedurally improper. First, the District sought to relitigate legal issues or application of law to facts. Moreover, the District raised issues that it had long since waived by not filing exceptions to the ALJ’s conclusions. Further, those portions of the District’s reconsideration request that relied on new evidence were flawed. Even had the District established that its new evidence was relevant, the District failed to establish PERB Regulation 32410’s other four requirements for submitting new evidence in a reconsideration request. The District’s declarations failed to specify when the District discovered the new facts, how soon thereafter it sought to reopen the record or otherwise bring the facts to the Board’s attention, or why it could not have done so earlier. And it was clear from the nature of the assertedly new evidence that it was previously available, could have been discovered with the exercise of reasonable diligence, and was not submitted close to the time of discovery. Accordingly, the Board excluded the District’s proposed new evidence from the record. (pp. 6-7.)

The District’s argument that an employer statement of its views falls within a legal safe harbor if “the communication does not on its face carry the threat of reprisal or force or promise of benefit” was improper in a reconsideration request as it challenged a legal conclusion.

The District’s argument that the Board’s remedial order requiring recently appointed superintendent to read PERB’s notice verbatim would violate superintendent’s constitutional rights was not a proper basis for reconsideration. To the extent the District asked the Board to consider new evidence—the fact that the District changed superintendents a year before---the District did not timely seek to reopen the record when it knew that fact, nor would taking note of that fact change the Board’s order.

EERA section 3543.5, subdivision (d) makes it unlawful for an employer to “[d]ominate or interfere with the formation or administration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another.” Disestablishment is the standard remedy for domination violations, even when the domination has ended. (Clovis Unified School District (2024) PERB Decision No. 2904, p. 62. Thus, even were the Board to consider new evidence submitted by the District as part of its reconsideration request, showing that the District eventually discontinued paying stipends and release time to the Faculty Senate, disestablishment of the Faculty Senate would still be necessary because the District’s longstanding, significant monetary support to the Senate provided it with an expensive head start that no other organization could match. (Id. at pp. 58-63.) Indeed, disestablishment is far superior to ordering the employer to level the playing field by providing a competing organization with substantial monetary and in-kind support allowing it to build its organization to the same degree as the formerly dominated organization. (Id. at p. 59 [“To do so would simply replace one employer dominated employee organization with another.”].) (pp. 7, 12; see also p. 41 [disestablishment is necessary even when domination has ended]).)

The District cited no supporting authority for its argument that disestablishment infringes on its employees’ associational rights, and PERB has long since rejected such argument. (Redwoods Community College District (1987) PERB Decision No. 650, p. 67). (p. 42.)

As explained in Clovis Unified School District (2024) PERB Decision No. 2904 (Clovis), spoken notice is appropriate if customary notice methods, in combination with other remedies, are insufficient. (Id. at p. 65.) To partially level the playing field after decades of District domination of the Faculty Senate, the Board ordered the District to create a video showing the superintendent reading PERB’s notice, and to play the video at regularly scheduled meetings of teachers at each school, during the school year. Although the Board’s only other spoken notice order did not specify video recording or a particular speaker (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 43), that case involved a smaller employer with fewer sites, and the violation was retaliation against two faculty members. Because the District is larger with far more sites, and the violations are more longstanding and wide reaching, the circumstances warranted a video recording by the District’s superintendent. (pp. 37-40.)

The District’s argument--that the Board’s remedial order requiring recently appointed superintendent to read PERB’s notice verbatim would violate superintendent’s constitutional rights—was contrary to precedent. (See, e.g., Barke v. Banks (9th Cir. 2022) 25 F.4th 714, 719 [public officials’ statements in their official capacities do not implicate individual constitutional rights].) Choosing the superintendent to read the notice does not reflect any finding of bad intent on the superintendent’s part, as intent is irrelevant to the violations found. (Clovis Unified School District (2024) PERB Decision No. 2904, p. 36.) Rather, the superintendent is the District official whose participation in the spoken notice will have the greatest tendency to convince listeners that the District will, in fact, comply with the law going forward. (pp. 38-39.)

While PERB considers decisions of the National Labor Relations Board (NLRB) only for their persuasive value, NLRB precedent supports specifying exactly how an employer must provide notice of a decision against it. (See, e.g., HTH Corporation (2014) 361 NLRB 709, 713-716 [specifying the high level executives, supervisors, and managers who must attend spoken notice readings, with sign-in sheets required; and further requiring that notice of NLRB’s findings and separate explanation of rights be electronically posted and physically posted at worksite for three years, mailed to all employees, supervisors, and managers, published twice weekly for eight weeks in two local publications chosen by the NLRB, and provided to all new employees, supervisors, and managers within 7 days of hiring, for three years); United States Service Industries (1995) 319 NLRB 231, 232 [requiring that notice must be translated to Spanish, and specifying that operations manager must read the notice or be present while NLRB agent reads it, “because the record indicates that the employees view him as the personification of the Company.”]) (p. 40, fn. 14.)