Alliance College-Ready Public Schools et al. (PERB 2545EA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED TEACHERS LOS ANGELES,
Charging Party,
v.
ALLIANCE COLLEGE-READY PUBLIC
SCHOOLS, ALLIANCE SUSAN & ERIC SMIDT
TECHNOLOGY HIGH SCHOOL, and
ALLIANCE RENEE & MEYER LUSKIN
ACADEMY HIGH SCHOOL
Respondents.
Case Nos. LA-CE-6025-E
LA-CE-6027-E
Request for Reconsideration
PERB Decision No. 2545
PERB Decision No. 2545a
June 20, 2018
Appearances: Bush Gottlieb by Jesús E. Quiñonez, Erica Deutsch, Dexter Rappleye and
Megan Degeneffe, Attorneys, for United Teachers Los Angeles; Robert Escalante, Attorney,
for Alliance College-Ready Public Schools, Alliance Susan & Eric Smidt Technology High
School, and Alliance Renee & Meyer Luskin Academy High School.
Before Banks, Krantz, and Winslow, Members.
DECISION
WINSLOW, Member: These consolidated cases are before the Public Employment
Relations Board (PERB or Board) on United Teachers Los Angeles’s (UTLA) request for
reconsideration of the Board’s decision in Alliance College-Ready Public Schools (2017)
PERB Decision No. 2545. As relevant here, the Board in that decision reversed the
administrative law judge’s (ALJ) conclusion that Alliance College-Ready Public Schools
(Alliance), Alliance Susan & Eric Smidt Technology High School (Smidt Tech), and Alliance
Renee & Meyer Luskin Academy High School (Luskin Academy) (collectively, Respondents)
constituted a “single employer.” Relying on California Virtual Academies (2016) PERB
Decision No. 2484, p. 66 (CAVA), and disapproving in part El Camino Hospital District (2009)
PERB Decision No. 2033-M (El Camino), the Board determined that it could not use a single-

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employer finding to exercise jurisdiction over the charter management organization, Alliance,
which is a private entity not defined as a “public school employer” under the Educational
Employment Relations Act (EERA).1 The Board considered UTLA’s argument—made for the
first time in this case in its opposition to Respondents’ cross-exceptions—that Smidt Tech and
Luskin Academy could be found liable for Alliance’s conduct based on an agency theory.
However, the Board concluded that this theory did not satisfy PERB’s unalleged violation test,
because UTLA gave no notice of this theory during the unfair practice hearing, in its motion to
amend the complaints, or its post-hearing briefs to the ALJ. The Board, therefore, dismissed
the allegations in the unfair practice complaints against Alliance.
In its request for reconsideration, UTLA argues that the Board’s conclusion that the
unalleged violation test was not satisfied rests upon prejudicial errors of fact, and that the
Board should either address UTLA’s agency theory on the merits or request supplemental
briefing from the parties.
The Board has reviewed UTLA’s request for reconsideration and supporting
documentation and Respondents’ response thereto. Based on this review, the Board denies
UTLA’s request for reconsideration for the reasons explained below.
DISCUSSION
Requests for reconsideration of a final Board decision are governed by PERB
Regulation 32410, subdivision (a),2 which states:
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. . . . [T]he request for reconsideration shall . . . state
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
specified, all statutory references are to the Government Code.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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with specificity the grounds claimed and, where applicable, shall
specify the page of the record relied on. . . . 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. . . .
Because reconsideration may only be granted under the extraordinary circumstances
specified above, the Board strictly applies the regulation’s criteria. (Regents of the University
of California (2000) PERB Decision No. 1354a-H; King City Joint Union High School District
(2007) PERB Decision No. 1777a, pp. 3-4.) “[A] request for reconsideration is not simply an
opportunity to ask the Board to ‘try again.’” (Chula Vista Elementary School District (2004)
PERB Decision No. 1557a, p. 2.) Reiterating the same facts and arguments made on appeal
does not satisfy the requirements of PERB Regulation 32410, subdivision (a). (San Leandro
Unified School District (2007) PERB Decision No. 1924a; Oakland Unified School District
(2004) PERB Decision No. 1645a.) Nor does asserting errors of law. (Jurupa Unified School
District (2015) PERB Decision No. 2450a, p. 3.)
UTLA argues that the Board’s decision contains a prejudicial error of fact in its
conclusion that Respondents were not adequately placed on notice of UTLA’s agency theory
for purposes of the unalleged violation test. As we summarized:
UTLA provided no clear notice that it intended to litigate the
issue of . . . whether Alliance is an agent of any of those schools
(including the other named Respondents, Luskin Academy and
Smidt Tech). . . . In its post-hearing briefs to the ALJ, UTLA
primarily argued that Alliance, Luskin Academy, Smidt Tech,
and Gertz-Ressler constituted a single employer, and it did not
argue any theory of agency. The ALJ found that Alliance, Luskin
Academy, and Smidt Tech comprised a single employer, and
made no findings of agency. UTLA’s exceptions did not
challenge the ALJ’s findings or lack of findings in this regard, or
his partial denial of UTLA’s motion to amend the complaint.
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Thus, because UTLA raised these arguments for the first time in
its response to the cross-exceptions, the unalleged violation
doctrine is not satisfied.
(Alliance College-Ready Public Schools, supra, PERB Decision No. 2545, pp. 13-14, footnotes
omitted.)
UTLA’s request for reconsideration does not dispute any of these facts, but points out
three others that the Board did not take notice of: (1) in a superior court complaint filed after
the Board granted UTLA’s request for injunctive relief related to these and two other unfair
practice cases, the Board alleged that Alliance was the agent of the schools in its network;
(2) during Alliance’s3 opening statement at the formal hearing in this case, its counsel
acknowledged that UTLA “has been advocating an agency theory”; and (3) Respondents
argued in their post-hearing opening brief to the ALJ that Alliance was not an agent of the
schools. Based on these facts, UTLA argues that we should find that Respondents had
adequate notice of UTLA’s agency theory, and proceed to consider the merits of the
allegations we previously dismissed.
We reject UTLA’s request for reconsideration for several reasons. First, UTLA’s
request primarily asserts a legal error—the Board’s application of the unalleged violation
doctrine—not a factual one. Our decision made no findings of fact regarding the contents of
PERB’s superior court complaint, Alliance’s opening statement, or Respondents’ opening brief
to the ALJ. Rather, in attempting to determine whether the unalleged violation doctrine was
satisfied, we looked to UTLA’s statements and filings to determine whether UTLA had
provided notice of or attempted to litigate its agency theory. Underpinning UTLA’s request
for reconsideration is the proposition that the Board misapplied the unalleged violation test by
looking at UTLA’s statements and filings, instead of Respondents’. But this is a purported
3 At the time of the opening statement, Alliance was the only respondent named in the
complaints.
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error of law, for which reconsideration is not available. (Jurupa Unified School District,
supra, PERB Decision No. 2450a, p. 3.)
Second, to the extent this is in part a factual question, reconsideration is not available
because UTLA made no attempt to bring the facts purportedly satisfying the unalleged
violation test to our attention before we issued our prior decision. The Board has denied
parties’ attempts to use requests for reconsideration to make up for shortcomings in their
previous filings. (Castaic Union School District (2010) PERB Order No. JR-25, p. 3 [“[A]
party cannot use a request for reconsideration to make its first opposition to an appeal”];
Lindsay Unified School District (1992) PERB Decision No. 936a, p. 2 [“Failure by a party to
present a well[-]organized case to a Board agent, or on appeal to the Board, does not constitute
appropriate grounds under which that party may request reconsideration from the Board”].)
The intent of the reconsideration procedure is to allow the correction of prejudicial
factual errors that appear in the Board’s decision through no fault of the party requesting
reconsideration. Such a procedure serves the purposes of promoting justice and fairness, and
conserving administrative and judicial resources by averting unnecessary resort to the courts.
Allowing a party to bring facts to the Board’s attention for the first time in a request for
reconsideration, on the other hand, does not serve those purposes, but only encourages delay
through piecemeal litigation.4 Because UTLA previously failed to present the facts
4 As has been explained in the analogous context of a petition for rehearing following a
decision by an appellate court:
Generally, “[i]t is much too late to raise an issue for the first time
in a petition for rehearing.” [Citation.] Counsel must ensure that
all points are properly presented in the original briefs and
argument before the matter is submitted [citation], for once the
case is submitted, we assume that counsel “have presented all the
reasons upon which they rely for an affirmance or a reversal of
the judgment.” [Citation.] Our general refusal to consider
arguments first presented on rehearing serves both judicial
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purportedly allowing us to consider the unalleged violation, it may not make up for that failure
now by requesting reconsideration of our decision.
Third, the Board’s superior court complaint against Alliance is not part of the “record”
of this case,5 and therefore cannot be relied on to establish a prejudicial error of fact to warrant
reconsideration.
Besides prejudicial errors of fact, the only other basis for reconsideration is newly
discovered evidence. However, UTLA’s request for reconsideration fails in this regard as
well. The “prejudicial error of fact” ground for reconsideration presupposes that the correct
fact has support in the record—hence the regulation’s requirement that the request “where
applicable, shall specify the page of the record relied on.” (PERB Regulation 32410,
subd. (a).) As a result, the superior court complaint is properly considered “new evidence,” in
which case UTLA was required, but failed, to provide “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.” (Ibid.)
economy and fairness. It prevents counsel from arguing cases “in
a piecemeal fashion.” [Citation.] And it protects the opposing
party from having to defend against new theories that were not
previously put in issue or raised at trial. [Citation.] Thus,
arguments first raised on rehearing are usually forfeited.
(Alameda County Management Employees Assn. v. Super. Ct. (2011) 195 Cal.App.4th 325,
339.)
5 The ALJ denied UTLA’s request to take official notice of the pleadings in the superior
court litigation. UTLA did not except to this ruling, and therefore waived any error. (PERB
Regulation 32300, subd. (c).)
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Request for Further Briefing
As an alternative to proceeding to a decision on the agency issue, UTLA urges us to
request further briefing from the parties in light of CAVA, supra, PERB Decision No. 2484 and
our prior decision in this case disapproving El Camino, supra, PERB Decision No. 2033-M.
UTLA states:
[It] is unaware of any case in which PERB, the NLRB, or any
other adjudicative body held that the unalleged violation doctrine
requires outright dismissal of a party’s complaint where the
parties and the ALJ framed their analysis of a jurisdictional issue
in reliance on a legal theory that was viable at the time, the theory
was undermined by case law decided after the hearing, and the
record contains sufficient evidence to resolve the jurisdictional
issue using the analysis endorsed by the new case law.
(Emphasis omitted.) UTLA asserts that before our decision in this case, it “had reason to
believe that its single-employer theory was supported by PERB’s precedents at the time it
briefed this case.”
UTLA also cites to Massey Energy Company (2012) 358 NLRB 1643 (Massey). In that
case the National Labor Relations Board (NLRB) requested further briefing before deciding
whether two entities alleged in the complaint to have an agency relationship were actually a
single employer.6 According to UTLA, Massey supports the proposition that where the
underlying statutory violation is the same, the Board can find liability based on a theory not
specified in the complaint without satisfying the more demanding standards of the unalleged
violation test.
We are not persuaded that any of these points support a request for supplemental
briefing at this stage of this case. We have no doubt of our authority to request supplemental
briefing before rendering a final decision in an unfair practice case. The Board possesses
6 The ALJ in Massey, supra, 358 NLRB 1643, concluded that the parent company was
liable for the unfair practices of a subsidiary under a “direct participation” theory, rather than
an agency theory, or under a single employer theory.
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broad statutory authority in the resolution of unfair practice charges (EERA, § 3541.3, subds.
(i), (n)), and broad regulatory authority on review of a proposed decision (PERB Regulation
32320, subd. (a) [the Board may “[i]ssue a decision based upon the record of hearing” or
“[a]ffirm, modify or reverse the proposed decision, order the record re-opened for the taking of
further evidence, or take such other action as it considers proper”]). We have exercised this
authority to request supplemental briefing sua sponte (see, e.g., Salinas Valley Memorial
HealthCare System (2017) PERB Decision No. 2524-M, pp. 11-12; United Teachers Los
Angeles (Raines, et al.) (2016) PERB Decision No. 2475, p. 8), to accept supplemental briefing
submitted on a party’s own initiative (City of Long Beach (2012) PERB Decision No. 2296-M,
pp. 10-11), and to grant a party’s request to submit supplemental briefing (Regents of the
University of California (2015) PERB Decision No. 2422-H, p. 4). It may well also be the
case that by soliciting supplemental briefing, we may find a violation based on a theory of
liability not alleged in the complaint or litigated by the parties, as the NLRB did in Massey,
supra, 358 NLRB 1643.
However, these cases are inapposite here. In each of them the supplemental briefing
was solicited or provided before PERB (or the NLRB, in the case of Massey) rendered a final
decision. After a final decision has been issued, our authority to request supplemental briefing
on issues raised or addressed by that decision is necessarily more limited to issues that have
been raised in a valid request for reconsideration. Otherwise, the strictly limited circumstances
for reconsideration could be circumvented by requests to submit supplemental briefing.
Parenthetically, we note that UTLA had more than adequate opportunity to propose
further briefing on the agency issue. CAVA, supra, PERB Decision No. 2484, was decided
more than two months before UTLA submitted its opposition to Respondent’s cross-exceptions
(in which UTLA cited CAVA extensively), and nearly a year-and-a-half before our decision in
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this case. Under any fair reading, CAVA plainly raised doubts about the validity of the single
employer holding in El Camino, supra, PERB Decision No. 2033-M, or at least its
applicability to EERA, by endorsing the proposition that “PERB cannot assert its jurisdiction
over a matter involving the question whether two entities constitute a single employer where
one of the entities is a private entity because private entities do not fall within EERA’s
definition of public school employer.” (CAVA, supra, at p. 66.) Under any fair reading, this
passage raised doubts about the validity of the single employer holding in El Camino, supra,
PERB Decision No. 2033-M. UTLA therefore had ample time to ask to submit supplemental
briefing in this case before the Board issued a final decision.
For these reasons, we decline to request further briefing in this case.
ORDER
United Teachers Los Angeles’s request for reconsideration of the Board's decision in
Alliance College-Ready Public Schools (2017) PERB Decision No. 2545 is hereby DENIED.
Members Banks and Krantz joined in this Decision.
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