Berkeley Unified School District (PERB 1976E)

OF CALIFORN
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BERKELEY FEDERATION OF TEACHERS,	BERKELEY FEDERATION OF TEACHERS,
Charging Party,	Charging Party,
V .	V.
BERKELEY UNIFIED SCHOOL DISTRICT,	BERKELEY UNIFIED SCHOOL DISTRICT,
Respondent.	Respondent.
Case No. SF-CE-2597-E	Case No. SF-CE-2597-E
PERB Decision No. 1976	PERB Decision No. 	1976
September
9,
2008	September 9, 2008
Appearances:	Appearances: 	Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Berkeley	Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Berkeley
Federation
of
Teachers; Atkinson, Andelson, Loya, Ruud & Romo by David A. Soldani,	Federation of Teachers; Atkinson, Andelson, Loya, Ruu d & Romo by David A. Soldani,
Attorney,	Attorney, for Berkeley Unified School District.	for Berkeley Unified School District.
DECISION
Before McKeag, Rystrom and Dowdin Calvillo, Members.	Before McKeag, Rystrom and Dowdin Calvillo, Members.
DECISION
DOWDIN CAL VILLO, Member: This case is before the Public Employment Relations	DOWD IN CALVILLO, Member: 	This case is before the Public Employment Relations
Board (PERB or Board) on appeal by the Berkeley Federation
of
Teachers (Federation)
of
a	Board (PERB or Board) on appeal by the Berkeley Federation of Teachers (Federation) of a
Board agent's dismissal
of
its unfair practice charge. 	The charge alleged that the Berkeley	Board agent's dismissal of its unfair practice charge. The charge alleged that the Berkeley
Unified School District (District) violated sections 3543.2(a), 3543.S(c), and 3543.7
of
the	Unified School District (District) violated sections 3543.2(a), 3543.5(c), and 3543.7 of the
Educational Employment Relations Act (EERA)	Educational Employment Relations Act (EERA)'1 by refusing to renegotiate a provision in they refusing to renegotiate a provision in the
parties' current collective bargaining agreement (CBA) that establishes a formula for funding	parties' current collective bargaining agreement (CBA) that establishes a formula for funding
the District's State-mandated reserve for economic uncertainties (reserve).	the District's State-mandated reserve for economic uncertainties (reserve) 2
1
EERA	ERA is codified at Government Code section 3540 et seq. Unless otherwise	is codified at Government Code section 3 540 et seq. 	Unless otherwise
indicated, all statutory references are to the Government Code.
2California Code
of
Regulations, title 5, section 15450 requires that each school district	alifornia Code of Regulations, title 5, section 15450 requires that each school district
set aside an amount equal to a certain percentage of its expenditures as a reserve for economic	set aside an amount equal to a certain percentage of its expenditures as a reserve for economic
uncertainties. 	The applicable percentage is determined by the school district's average daily	uncertainties. The applicable percentage is determined by the school district's average daily
attendance. 	Under this formula, the District must keep an amount equalto 3 percent of its	attendance. Under this formula, the District must keep an amount equal to 3 percent of its
expenditures in the reserve fund.
IA
b
.
E
indicated, all statutory references are to the Government Code.
*C
expenditures in the reserve fund.

BACKGROUND
Unfair Practice Charge
The Board has reviewed the entire record in this case, including but not limited to, the	Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge, the District's position	original and amended unfair practice charge, the District's position statement, the Board	statement, the Board
agent's warning and dismissal letters, the Federation's appeal and the District's response	agent's warning and dismissal letters, the Federation's appeal and the District's response
thereto. Based on this review, the Board affirms the dismissal of the charge for the reasons	thereto. 	Based on this review, the Board affirms the dismissal
of
the charge for the reasons
discussed below.	discussed below.
BACKGROUND
Unfair Practice Charge
On February 2, 2007, the Federation filed an unfair practice charge alleging that the	On February 2, 2007, the Federation filed an unfair practice charge alleging that the
District violated EERA by refusing to "re-open"	District violated EERA by refusing to "re-open" negotiations over the CBA's reserve funding	negotiations over the CBA's reserve funding
formula. 	The charge alleged that	formula. The charge alleged that during negotiations for the CBA in the spring of 2005, the	during negotiations for the CBA in the spring
of
2005, the
District told the Federation that it was "legally prohibited" from using parcel tax revenue to	District told the Federation that it was "legally prohibited" from using parcel tax revenue to
fund the reserve. As a result, the reserve would have to	fund the reserve. As a result, the reserve would have to be funded entirely from "unrestricted"	be funded entirely from "unrestricted"
funds, thereby reducing the amount
of
funds available for employee wages and benefits.3 The	he
charge alleged that the District's statements induced the Federation to agree to section 14.2.1.4	charge alleged that the District's statements induced the Federation to agree to section 14.2.1.4
of the CBA, which states in full:	
of
the CBA, which states in full:
The charge also alleged that the District failed to put available unrestricted funds into
the Reserve fund. 	This appears to allege a violation of the CBA. PERB has no authority to
adjudicate an alleged contract violation unless the violation also constitutes an unfair practice.
(Grant Joint Union High School District (1982) PERB Decision No. 196.) However, because
the Federation has not raised this issue on appeal, we need not address it.
2
funds, thereby reducing the amount of funds available for employee wages and benefits.' T
Subtract twenty percent (20%) of any total increase in the	Subtract twenty percent (20%)
of
any total increase in the
additional dollars identified in step 3 and dedicate this amount to	additional dollars identified in step 3 and dedicate this amount to
the reserve fund obligation. This	the reserve fund obligation. This reserve fund deduction shall be	reserve fund deduction shall be
removed from the formula as soon as joint BUSD/BFT budget	removed from the formula as soon as joint BUSD/BFT budget
analysis reveals that the reserve fund obligation has been met	analysis reveals that the reserve fund obligation has been met
with	with the portion of unrestricted dollars, exclusive of parcel taxes.	the portion
of
unrestricted dollars, exclusive
of
parcel taxes.
After the CBA	After the CBA negotiations concluded, the Alameda County Office of Education	negotiations concluded, the Alameda County Office
of
Education
(ACOE) approved the District's fiscal year 2006 budget even	(ACOE) approved the District's fiscal year 2006 budget even though it used parcel tax money	though it used parcel tax money
The charge also alleged that the District failed to put available unrestricted funds into
the Reserve fund. This appears to allege a violation of the CBA. PERB has no authority to
adjudicate an alleged contract violation unless the violation also constitutes an unfair practice.
(Grant Joint Union High School District (1982) PERB Decision No. 196.) However, because
the Federation has not raised this issue on appeal, we need not address it.
2

partially fund the reserve. In the District's approved budget for fiscal year 2007, the reserve	to partially fund the reserve. In the District's approved budget for fiscal year 2007, the reserve
was again funded in part by parcel tax money.	was again funded in part by parcel tax money.
The Board agent dismissed the charge for failure to state a prima facie violation of
EERA. 	The dismissal stated that the charge did not allege facts establishing a violation of
EERA section 3543.2(a), which sets forth the scope of representation under EERA. The
dismissal also said that no facts were alleged to support a violation of Section 3543.7, which
requires the parties to begin negotiations far enough in advance of adoption of the next fiscal
year's final budget to allow for impasse resolution.
3
Sometime in the fall of 2006, ACOE Superintendent Sheila Jordan (Jordan) sent the	Sometime in the fall of 2006, ACOE Superintendent Sheila Jordan (Jordan) sent the
District	District a letter which stated in part: "Without the parcel taxes, the District would be unable to	a letter which stated in part: "Without the parcel taxes, the District would be unable to
meet its financial obligations and the 3% reserve for economic uncertainties." In November or	meet its financial obligations and the 3% reserve for economic uncertainties." In November or
December of 2006, Federation President Barry Fike (Fike) contacted Jordan, who told him that	December of 2006, Federation President Barry Fike (Fike) contacted Jordan, who told him that
the District could legally use parcel tax revenue to fund the reserve.	the District could legally use parcel tax revenue to fund the reserve.
On January 9, 2007, Fike sent a letter to District Superintendent Michele Lawrence	On January 9, 2007, Fike sent a letter to District Superintendent Michele Lawrence
(Lawrence) asserting that the District's message that it could not use parcel tax money to fund	(Lawrence) asserting that the District's message that it could not use parcel tax money to fund
the reserve was either "a miscommunication mistake" or a "knowing and deliberate	the reserve was either "a miscommunication mistake" or a "knowing and deliberate
inaccuracy." The letter demanded that the District re-open negotiations over section 14.2.1.4	inaccuracy." The letter demanded that the District re-open negotiations over section 14.2.1.4
because the Federation agreed to the provision "under false pretenses and we now know the	because the Federation agreed to the provision "under false pretenses and we now know the
truth." On January 17, Lawrence sent Fike a letter refusing the Federation's bargaining	truth." On January 17, Lawrence sent Fike a letter refusing the Federation's bargaining
demand. The charge alleged that the District had refused to bargain with the Federation over	demand. The charge alleged that the District had refused to bargain with the Federation over
section 14.2.1.4 and sought an order compelling the District to do so.	section 14.2.1.4 and sought an order compelling the District to do so.
Dismissal	Dismissal
The Board agent dismissed the charge for failure to state a prima facie violation of
EERA. The dismissal stated that the charge did not allege facts establishing a violation of
EERA section 3543.2(a), which sets forth the scope of representation under EERA. The
dismissal also said that no facts were alleged to support a violation of Section 3543.7, which
requires the parties to begin negotiations far enough in advance of adoption of the next fiscal
year's final budget to allow for impasse resolution.

The Board agent treated the alleged Section 3543.5(c) violation as a bad faith	Board agent treated the alleged Section 3543.S(c) violation as a bad faith
bargaining allegation.	bargaining allegation. 4 The dismissal stated that the only factual allegation supporting this	he dismissal stated that the only factual allegation supporting this
violation was that the District misrepresented its ability to legally use parcel tax revenue to	violation was that the District misrepresented its ability to legally use parcel tax revenue to
fund	fund the reserve. The Board agent concluded that the misrepresentation, standing alone, was	the reserve. The Board agent concluded that the misrepresentation, standing alone, was
insufficient to establish bad faith bargaining under PERB case law.	insufficient to establish bad faith bargaining under PERB case law.5
The Federation's Appeal
On appeal, the Federation has abandoned its assertion that the District intentionally	On appeal, the Federation has abandoned its assertion that the District intentionally
misrepresented its inability to legally use parcel tax revenue to fund the reserve. Instead, the	misrepresented its inability to legally use parcel tax revenue to fund the reserve. Instead, the
Federation relies solely on its claim that section 14.2.1.4 of the CBA "was the product of a	Federation relies solely on its claim that section 14.2.1.4 of the CBA "was the product of a
mutual mistake of fact." In other words, both the Federation and the District mistakenly	mutual mistake of fact." In other words, both the Federation and the District mistakenly
believed that it was illegal to use parcel tax revenue to fund the reserve. Because of this	believed that it was illegal to use parcel tax revenue to fund the reserve. Because of this
mistake, the Federation argues, section 14.2.1.4 must be rescinded and the parties therefore	mistake, the Federation argues, section 14.2.1.4 must be rescinded and the parties therefore
have an obligation to meet and confer over a replacement provision. The Federation contendshave an obligation to meet and confer over a replacement provision. The Federation contends
that the District's refusal to meet and confer under these circumstances violates EERA section	that the District's refusal to meet and confer under these circumstances violates EERA section
3543.5(c).	3543.S(c).6
4EERA	ERA section 3543.5(c) states in relevant part that it is unlawful for a public school	section 3543.S(c) states in relevant part that it is unlawful for a public school
employer to "[refuse or fail to meet and confer in good faith with an exclusive representative."	employer to "[r]efuse or fail to meet and confer in good faith with an exclusive representative."
5Inthe warning letter, the Board agent also noted that the charge was untimely because	the warning letter, the Board agent also noted that the charge was untimely because
it was filed more than six months after the alleged misrepresentation occurred. In the dismissal	it was filed more than six months after the alleged misrepresentation occurred. In the dismissal
letter, the Board agent found this defect cured by the allegation in the amended charge that	letter, the Board agent found this defect cured by the allegation in the amended charge that
Fike first learned of the alleged misrepresentation in November or December 2006 when he	Fike first learned of the alleged misrepresentation in November or December 2006 when he
spoke with Jordan.	spoke with Jordan.
6The	he Federation does not appeal the Board agent's dismissal of the alleged violations of	Federation does not appeal the Board agent's dismissal of the alleged violations of
EERA sections 3543.2(a) and 3543.7. For this reason, we do not address those alleged	EERA sections 3543.2(a) and 3543.7. For this reason, we do not address those alleged
violations.	violations.
4
" T
The Federation's Appeal
6
E
In
'T
4

DISCUSSION
District's Response to Appeal	Response to Appeal
The District argues	The District argues that the charge failed to allege facts establishing that the adoption of	that the charge failed to allege facts establishing that the adoption
of
section 14.2.1.4 was the result of a mistake. The District also notes that the Federation	section 14.2.1.4 was the result
of
a mistake. The District also notes that the Federation
provided	provided no legal authority showing that a mutual mistake regarding a CBA provision	no legal authority showing that a mutual mistake regarding a CBA provision
obligates the parties to bargain over a replacement	obligates the parties to bargain over a replacement provision. Finally, the District asserts that	provision. Finally, the District asserts that
the charge is barred by the statute
of
limitations because the Federation should have known
of	the charge is barred by the statute of limitations because the Federation should have known of
the District's allegedly false statement when ACOE approved the District's fiscal year 2006	the District's allegedly false statement when ACOE approved the District's fiscal year 2006
budget, which used	budget, which used parcel tax revenue to partially fund the reserve.	parcel tax revenue to partially fund the reserve.
DISCUSSION
The Board agent dismissed the Federation's charge	The Board agent dismissed the Federation's charge because it failed to state a prima	because it failed to state a prima
facie case
of
bad faith	facie case of bad faith bargaining. However, it is apparent from both the original and amended	bargaining. However, it is apparent from both the original and amended
charges that the Federation alleged the District violated EERA, not by bargaining in bad faith,	charges that the Federation alleged the District violated EERA, not by bargaining in bad faith,
but by refusing the Federation's demand to re-open	but by refusing the Federation's demand to re-open negotiations over section 14.2.1.4 of the	negotiations over section 14.2.1.4
of
the
CBA. 	Accordingly, the charge is properly analyzed as a refusal to bargain charge.	CBA. Accordingly, the charge is properly analyzed as a refusal to bargain charge.
5
Statute of Limitations	Statute
of
Limitations
EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to	EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the	'"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or	filing
of
the charge." The limitations period begins to run once the charging party knows, or
should have	should have known, of the conduct underlying the charge. (Gavilan Joint Community College	known,
of
the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) A charging party bears the burden of alleging that	District (1996) PERB Decision No. 1177.) A charging party bears the burden
of
alleging that
the charge is timely filed. 	(Tehachapi Unified School	the charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No.	District (1993) PERB Decision No.
1024; State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.)	1024; State of California (Department oflnsurance) (1997) PERB Decision No. 1197-S.)
The Federation has met its	The Federation has met its burden. The charge alleges that on January 9, 2007, the	burden. The charge alleges that on January 9, 2007, the
Federation demanded in writing that the District meet and confer over section 14.2.1.4.	Federation demanded in writing that the District meet and confer over section 14.2.1 .4.
S

6
Attached to the amended charge is a letter dated January 17, 2007, from District	to the amended charge is a letter dated January 17, 2007, from District
Superintendent Lawrence to Federation President Fike, refusing the Federation's demand to	Superintendent Lawrence to Federation President Fike, refusing the Federation's demand to
meet and confer. The charge was filed on February 2, 2007, less than one month after the	meet and confer. The charge was filed on February 2, 2007, less than one month after the
District's refusal to bargain. Therefore, the charge was timely filed.	District's refusal to bargain. 	Therefore, the charge was timely filed.
On appeal, the District asserts that the charge was untimely. According to the District,	On appeal, the District asserts that the charge was untimely. According to the District,
the Federation should have known of the alleged mutual mistake when ACOE approved the	the Federation should have known of the alleged mutual mistake when ACOE approved the
District's fiscal year 2006 budget, which used parcel tax revenue to partially fund the reserve.	District's fiscal year 2006 budget, which used parcel tax revenue to partially fund the reserve.
Thus, the District argues, the Federation was required to file its unfair practice charge within	Thus, the District argues, the Federation was required to file its unfair practice charge within
six months after approval of the 2006 budget and its failure to do so made the charge untimely.	six months after approval of the 2006 budget and its failure to do so made the charge untimely.
PERB has often stated that "the limitations period begins to run once the charging party	PERB has often stated that "the limitations period begins to run once the charging party
knows, or should have known, of the conduct underlying the charge." However, "conduct	knows, or should have known, of the conduct underlying the charge." However, "conduct
underlying the charge" does not refer to any facts alleged in the charge but only to the conduct	underlying the charge" does not refer to any facts alleged in the charge but only to the conduct
alleged to constitute an unfair practice. (See Los Banos Unified School District (2006) PERBalleged to constitute an unfair practice. (See Los Banos Unified School District (2006) PERB
Decision No. 1828 [unfair practice charge must be filed "within six months of the alleged	Decision No. 1828 [unfair practice charge must be filed "within six months of the alleged
illegal act occurring"].) PERB has not recognized mutual mistake of fact as an unfair practice.	illegal act occurring"].) PERB has not recognized mutual mistake of fact as an unfair practice.
Thus, even if the Federation learned, or should have learned, of the mistake when the 2006	Thus, even if the Federation learned, or should have learned, of the mistake when the 2006
budget was approved, the statute of limitations period did not begin to run because the	budget was approved, the statute of limitations period did not begin to run because the
Federation had no cause of action before PERB at that time. Instead, the limitations period	Federation had no cause of action before PERB at that time. Instead, the limitations period
began to run when the conduct alleged to constitute an unfair practice, the District's refusal to	began to run when the conduct alleged to constitute an unfair practice, the District's refusal to
re-open negotiations over section 14.2.1.4, occurred on January 17, 2007. As noted, the chargere-open negotiations over section 14.2.1.4, occurred on January 17, 2007. As noted, the charge
was timely filed within one month of the refusal and therefore the District's statute of	was timely filed within one month of the refusal and therefore the District's statute of
limitations argument fails.	limitations argument fails.
6

In labor law, a party's entitlement to rescind a contract provision based on a mista
7
Duty to Bargain	to Bargain
It is axiomatic that a refusal to bargain is not an unfair practice if the refusing party had	It is axiomatic that a refusal to bargain is not an unfair practice
if
the refusing party had
no duty to bargain. To establish that the	no duty to bargain. To establish that the District had a duty to bargain, the Federation argues	District had a duty to bargain, the Federation argues
that section 14.2.1.4 of the CBA is a product of the parties' mutual mistake of fact regarding	that section 14.2.1.4
of
the CBA
is
a product
of
the parties' mutual mistake
of
fact regarding
the legality of using parcel tax revenue to fund the reserve. The Federation then asserts that	the legality
of
using parcel tax revenue to fund the reserve. The Federation then asserts that
the mistake entitles it to rescind section	the mistake entitles it to rescind section 14.2.1.4 and that, as a result, the District has a duty to	14.2.1.4 and that, as a result, the District has a duty to
meet and confer over a replacement provision.	meet and confer over a replacement provision.
In labor law, a party's entitlement to rescind a contract provision based on a mistake of	ke
of
fact has legal significance only in very limited	fact has legal significance only in very limited circumstances. In San Diego Unified School	circumstances. In San Diego Unified School
District (2007) PERB Decision No. 1883 (San Diego), the Board recognized that "rescission	District (2007) PERB Decision No. 1883 (San Diego), the Board recognized that "rescission
based on a unilateral mistake of fact" could provide a defense to a bad faith bargaining charge.	based on a unilateral mistake
of
fact" could provide a defense to a bad faith bargaining charge.
However, the Board cautioned that the defense should only be allowed "under extraordinary	However, the Board cautioned that the defense should only be allowed "under extraordinary
circumstances." In that case, the employer refused to implement a two-tiered	circumstances." In that case, the employer refused to implement a two-tiered leave accrual	leave accrual
system pursuant to the parties'	system pursuant to the parties' CBA because during negotiations it had mistakenly	CBA because during negotiations it had mistakenly
underestimated	underestimated the cost of the system. The Board found that the employer's failure to exercise	the cost
of
the system. The Board found that the employer's failure to exercise
ordinary diligence during negotiations prevented it from establishing a mistake of fact defense.	ordinary diligence during negotiations prevented it from establishing a mistake
of
fact defense.
7
Similarly, the National Labor	Similarly, the National Labor Relations Board (NLRB) has recognized rescission based	Relations Board (NLRB) has recognized rescission based
on a unilateral mistake of fact as a defense in cases where a party refuses to execute an agreed-	on a unilateral mistake of fact as a defense in cases where a party refuses to execute an agreed
upon CBA. For example, in Apache Powder Company	upon CBA. For example, in Apache Powder Company (1976) 223 NLRB 191 [92 LRRM	(1976) 223 NLRB
191
[92 LRRM
1102], the Board	1 102], the Board recognized rescission based on a unilateral mistake of fact as a defense to a	recognized rescission based on a unilateral mistake
of
fact as a defense to a
charge that the employer engaged in bad faith bargaining by refusing to execute a CBA that	charge that the employer engaged in bad faith bargaining by refusing to execute a CBA that
included an incorrect date for a change in pension	included an incorrect date for a change in pension multipliers. (Id. at p. 191.) In doing so, the	multipliers. (Id. at p. 191.) In doing so, the
Board	Board noted that rescission based on unilateral mistake "is a carefully guarded remedy	noted that rescission based on unilateral mistake "is a carefully guarded remedy
reserved for	reserved for those instances where the mistake is so obvious as to put the other party on notice	those instances where the mistake is so obvious as to put the other party on notice

The NLRB has also addressed rescission based on mutual mistake of fact in the con
8
of an error." (Ibid.; see also Hospital Employees Local 1199 (Lenox Hill Hospital) (1989)	an error." (Ibid.; see also Hospital Employees Local 1199 (Lenox Hill Hospital) (1989)
296 NLRB 322, 326 [132 LRRM 1351] [unilateral mistake of fact did not provide defense to	296 NLRB 322,326 [132 LRRM 1351] [unilateral mistake of fact did not provide defense to
charge that union engaged in bad faith bargaining by refusing to execute CBA where employer	charge that union engaged in bad faith bargaining by refusing to execute CBA where employer
had no reason to know of union's mistake because mistake was not obvious].)	had no reason to know of union's mistake because mistake was not obvious].)
The NLRB has also addressed rescission based on mutual mistake of fact in the context	text
of a bad faith bargaining charge. 	In Teamsters Local 439 (Pittsburgh-Des Moines Steel Co.)	of a bad faith bargaining charge. In Teamsters Local 439 (Pittsburgh-Des Moines Steel Co.)
(1972) 196 NLRB 971 [80 LRRM 1211], a newly-bargained CBA provided that wage rates for	(1972) 196 NLRB 971 [80 LRRM 1211], a newly-bargained CBA provided that wage rates for
plant employees would be increased according to the area rate established by national	plant employees would be increased according to the area rate established by national
negotiations between the employer and the union. (Id. at p. 972.) At the time of contracting,	negotiations between the employer and the union. (Id. at p. 972.) At the time of contracting,
both parties believed that the increase would be $1.10. (Ibid.) However, the final area rate	both parties believed that the increase would be $ 1. 10. (Ibid.) However, the final area rate
required a wage increase of $1.65. (Id. at p. 973.) The employer filed an unfair labor practice	required a wage increase of $1.65. (Id. at p. 973.) The employer filed an unfair labor practice
charge alleging that the union engaged in bad faith bargaining by refusing to execute the CBAcharge alleging that the union engaged in bad faith bargaining by refusing to execute the CBA
because it did not contain the higher wage rate. 	(Id. at pp. 971, 975.)	because it did not contain the higher wage rate. (Id. at pp. 971, 975.)
After finding that the union had in fact executed the CBA, the Board went on to state	After finding that the union had in fact executed the CBA, the Board went on to state
that the parties' "mutual mistake of fact [regarding the wage rate] resulted in a contract which	that the parties' "mutual mistake of fact [regarding the wage rate] resulted in a contract which
could be rescinded at the option of either party." (Id. at p. 975.) The Board then noted that the	could be rescinded at the option of either party." (Id. at p. 975.) The Board then noted that the
employer should be faulted for failing to raise the issue of mutual mistake when it learned of	employer should be faulted for failing to raise the issue of mutual mistake when it learned of
the higher area rate before sending the final draft of the CBA to the union. (Ibid.)	the higher area rate before sending the final draft of the CBA to the union. 	(Ibid.)
Significantly, the Board did not find that the mutual mistake provided a defense to the bad faith	Significantly, the Board did not find that the mutual mistake provided a defense to the bad faith
bargaining charge. Indeed, in light of the Board's finding that the union did in fact execute the	bargaining charge. Indeed, in light of the Board's finding that the union did in fact execute the
CBA, its mutual mistake discussion appears to be dicta.	CBA, its mutual mistake discussion appears to be dicta.
The above cases establish that both PERB and the NLRB recognize the legal	The above cases establish that both PERB and the NLRB recognize the legal
significance of a party's ability to rescind a contract provision based on mistake of fact only	significance of a party's ability to rescind a contract provision based on mistake of fact only
when: (1) the mistake is a unilateral one; and (2) rescission is raised as a defense to a bad faith	when: 	(1) the mistake is a unilateral one; and (2) rescission is raised as a defense to a bad faith
8

9
bargaining charge. Neither board has recognized rescission based on mutual mistake of fact as	charge. Neither board has recognized rescission based on mutual mistake
of
fact as
a defense to an unfair practice charge. Nonetheless, the Federation	a defense to an unfair practice charge. Nonetheless, the Federation urges this Board to find	urges this Board to find
that rescission based on mutual mistake of fact creates an affirmative duty to bargain. Yet the	that rescission based on mutual mistake
of
fact creates an affirmative duty to bargain. 	Yet the
Federation has provided no authority to support this argument, nor has the Board found any	Federation has provided no authority to support this argument, nor has the Board found any
such authority. 	Accordingly, we decline to extend the applicability
of
rescission based on	such authority. Accordingly, we decline to extend the applicability of rescission based on
mistake
of
fact beyond its current boundaries and	mistake of fact beyond its current boundaries and hold that a party's entitlement to rescind a	hold that a party's entitlement to rescind a
contract provision based on mutual mistake of fact does not create a duty to bargain over a	contract provision based on mutual mistake
of
fact does not create a duty to bargain over a
replacement provision.	replacement provision.
Strong policy reasons support this holding. In San Diego, the Board observed that	Strong policy reasons support this holding. 	In San Diego, the Board observed that
"holding the parties	"holding the parties accountable for their preparation is a necessary safeguard to protect the	accountable for their preparation is a necessary safeguard to protect the
integrity of agreements between the parties and preserve stability in labor-management	integrity
of
agreements between the parties and preserve stability in labor-management
relations." Allowing a party to use rescission based on mutual mistake as a means to re-open	relations." Allowing a party to use rescission based on mutual mistake as a means to re-open
the CBA would undermine the integrity and stability
of
the bargaining process by putting	the CBA would undermine the integrity and stability of the bargaining process by putting the	the
CBA in a perpetual state
of
uncertainty.	CBA in a perpetual state of uncertainty. Moreover, such a rule would lead to careless	Moreover, such a rule would lead to careless
bargaining by	bargaining by discouraging parties from verifying each other's statements during negotiations	discouraging parties from verifying each other's statements during negotiations
in the	in the hopes that it will lead to an opportunity to renegotiate an unfavorable contract provision	hopes that it will lead to an opportunity to renegotiate an unfavorable contract provision
in the future. 	Neither	in the future. Neither result is desirable.	result is desirable.
We recognize, of course, that mutual mistakes of fact will occur in the bargaining	We recognize,
of
course, that mutual mistakes
of
fact will occur in the bargaining
process. But the proper place to resolve such mistakes is at the bargaining table. Further,	process. 	But the proper place to resolve such mistakes is at the bargaining table. Further,
when a party is unwilling to voluntarily	when a party is unwilling to voluntarily surrender a windfall it has received as the result of a	surrender a windfall it has received as the result
of
a
mutual mistake, the other party may bring an action in court to rescind the contract. The	mutual mistake, the other party may bring an action in court to rescind the contract. The
Board's holding thus places the duty for correcting a mutual mistake of fact in the hands of the	Board's holding thus places the duty for correcting a mutual mistake of fact in the hands
of
the
parties, where it appropriately belongs, and as a last resort in the courts, with their expertise in	parties, where it appropriately belongs, and as a last resort in the courts, with their expertise in
matters of contract law.	matters of contract law.
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sum, as a matter
of
law the charge	In sum, as a matter of law the charge fails to establish that the District had a duty to re-	fails to establish that the District had a duty to re
open negotiations over section 14.2.1.4. Therefore, the District did not commit an unfair	open negotiations over section 14.2.1.4. Therefore, the District did not commit an unfair
practice by refusing the	practice by refusing the Federation's demand to re-open negotiations.	Federation's demand to re-open negotiations.
ORDER
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ORDER
The unfair practice charge in Case No. SF-CE-2597-E is hereby DISMISSED	The unfair practice charge in Case No. SF-CE-2597-E is hereby DISMISSED
WITHOUT	WITHOUT LEAVE TO AMEND.	LEA VE TO AMEND.
Members Mckeag and Rystrom joined in this Decision.	Members McKeag and Rystrom joined in this Decision.
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