Cottonwood Union Elementary School District (PERB 2026E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COTTONWOOD TEACHERS ASSOCIATION,
Charging Party, 	Case No. SA-CE-2399-E
V . 	PERB Decision No. 2026
COTTONWOOD UNION ELEMENTARY 	May 15, 2009
SCHOOL DISTRICT,
Appearances: California Teachers Association by Priscilla Winslow, Attorney, for
Cottonwood Teachers Association; Lozano Smith by Thomas E. Gauthier, Attorney, for
Cottonwood Union Elementary School District.
Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION
NEUWALD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Cottonwood Teachers Association (Association) to
an administrative law judge's (AL]) proposed decision. The charge alleged that the
Cottonwood Union Elementary School District (District) violated the Educational Employment
Relations Act (EERA)' by: (1) failing to bargain in good faith and making a unilateral change
by reneging on implementation of a negotiated salary formula; (2) repudiating the negotiated
grievance procedure in refusing to process a grievance; and (3) failing to bargain in good faith
and bypassing the exclusive representative by sending a grievance response to all bargaining
unit employees. The Association alleged that this conduct constituted a violation of EERA
section 3543.5, subdivisions (a), (b) and (c).
EERA is codified at Government Code section 3540 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COTTONWOOD TEACHERS ASSOCIATION,
Charging Party,
V.
COTTONWOOD UNION ELEMENTARY
SCHOOL DISTRICT,
Respondent.	Respondent.
Case No. SA-CE-2399-E
PERB Decision No. 	2026
May 15, 2009
Appearances: 	California Teachers Association by Priscilla Winslow, Attorney, for
Cottonwood Teachers Association; Lozano Smith by Thomas E. Gauthier, Attorney, for
Cottonwood Union Elementary School District.
Before McKeag, Neuwald and Dowdin Calvillo, Members.
DECISION
NEUWALD, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Cottonwood Teachers Association (Association) to
an administrative law judge's (ALJ) proposed decision. 	The charge alleged that the
Cottonwood Union Elementary School District (District) violated the Educational Employment
Relations Act (EERA) 1 by: (1) failing to bargain in good faith and making a unilateral change
by reneging on implementation of a negotiated salary formula; (2) repudiating the negotiated
grievance procedure in refusing to process a grievance; and (3) failing to bargain in good faith
and bypassing the exclusive representative by sending a grievance response to all bargaining
unit employees. 	The Association alleged that this conduct constituted a violation of EERA
section 3543.5, subdivisions (a), (b) and (c).
1 EERA is codified at Government Code section 3540 et seq.

Following the issuance of the proposed decision, the Association, pursuant to PERB
Regulation 32300," filed timely exceptions. Thereupon, the parties entered into settlement
negotiations. A settlement agreement was reached and, subsequently, the Association
requested a withdrawal of its exceptions on March 25, 2009. The District did not file
exceptions or a response to the Association's exceptions. On April 9, 2009, the Appeals
Assistant sent the parties a letter requesting clarification as to whether the parties also intended
to vacate the proposed decision.
The Association responded on April 23, 2009, stating that the settlement agreement did
not encompass vacating the proposed decision but rather, simply, withdrawing the exceptions.
That same day, the District filed a response requesting the Board to enter an order
withdrawing the unfair labor practice charge in its entirety including vacating the decision and
not merely just the exceptions. The District noted for the Board that the settlement agreement
stated "withdraw any remaining ULPs." The District pointed out that in two other pending
unfair practice charges, the Association withdrew its unfair labor practices. Yet, in the instant
case, the Association refused to do so. The District argued, therefore, that the doctrine of
judicial estoppel prevents the Association from trying to take inconsistent positions in this case
from the other two cases. The District also stated, in a desire to cease litigation, that if the
Board does not agree with the its position, "[alt the very least the [ALJJ's decision should
stand and the Association's belated withdrawal of its 'exceptions' to the judge's decisions
should be accepted. It's time to move on."
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
Following the issuance of the proposed decision, the Association, pursuant to PERB
Regulation 32300,2 filed timely exceptions. Thereupon, the parties entered into settlement
negotiations. A settlement agreement was reached and, subsequently, the Association
requested a withdrawal of its exceptions on March 25, 2009. The District did not file
exceptions or a response to the Association's exceptions. On April 9, 2009, the Appeals
Assistant sent the parties a letter requesting clarification as to whether the parties also intended
to vacate the proposed decision.
The Association responded on April 23, 2009, stating that the settlement agreement did
not encompass vacating the proposed decision but rather, simply, withdrawing the exceptions.
That same day, the District filed a response requesting the Board to enter an order
withdrawing the unfair labor practice charge in its entirety including vacating the decision and
not merely just the exceptions. The District noted for the Board that the settlement agreement
stated "withdraw any remaining ULPs." The District pointed out that in two other pending
unfair practice charges, the Association withdrew its unfair labor practices. Yet, in the instant
case, the Association refused to do so. The District argued, therefore, that the doctrine of
judicial estoppel prevents the Association from trying to take inconsistent positions in this case
from the other two cases. The District also stated, in a desire to cease litigation, that if the
Board does not agree with the its position, "[a]t the very least the [ALJ]'s decision should
stand and the Association's belated withdrawal of its 'exceptions' to the judge's decisions
should be accepted. It's time to move on."
2
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

After reviewing this request and the entire record in this matter, the Board finds that
granting the Association's request to withdraw its exceptions is in the best interests of the
parties and consistent with the purposes of EERA.
DISCUSSION
Sometimes after a case has reached the Board itself, there is a request from the parties
to withdraw the case at the Board level. The Board reviews each request of this nature to
determine whether granting it would be consistent with the governing statute and in the best
interests of the parties. (Orange Unified School District (2001) PERB Decision No. 1437.)
In cases where exceptions have been filed, the Board is guided by PERB
Regulation 32320, which provides, in pertinent part:
(a) The Board itself may:
(1) 	Issue a decision based upon the record of hearing, or
(2) 	Affirm, 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.
It is clear that the Board has the discretion to grant or deny the request and to allow the
withdrawal of a charge and complaint, and to vacate a proposed decision. (ABC Unified
School District (1991) PERB Decision No. 831b.)
In this case, the Association has requested to withdraw its appeal of the ALJ's proposed
decision. Therefore, the substance of the ALJ's proposed decision and the decision itself
stands. The Board concludes that it effectuates the purposes of EERA to permit withdrawal of
the exceptions related to the appeal of the ALJ's proposed decision in this case.
3
After reviewing this request and the entire record in this matter, the Board finds that
granting the Association's request to withdraw its exceptions is in the best interests of the
parties and consistent with the purposes of EERA.
DISCUSSION
Sometimes after a case has reached the Board itself, there is a request from the parties
to withdraw the case at the Board level. The Board reviews each request of this nature to
determine whether granting it would be consistent with the governing statute and in the best
interests of the parties. (Orange Unified School District (2001) PERB Decision No. 1437.)
3
In cases where exceptions have been filed, the Board is guided by PERB
Regulation 32320, which provides, in pertinent part:
(a) 	The Board itself may:
( 1) 	Issue a decision based upon the record of hearing, or
(2) 	Affirm, 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.
It is clear that the Board has the discretion to grant or deny the request and to allow the
withdrawal of a charge and complaint, and to vacate a proposed decision. (ABC Unified
School District (1991) PERB Decision No. 831b.)
In this case, the Association has requested to withdraw its appeal of the ALJ' s proposed
decision. Therefore, the substance of the ALJ's proposed decision and the decision itself
stands. The Board concludes that it effectuates the purposes of EERA to permit withdrawal of
the exceptions related to the appeal of the ALJ' s proposed decision in this case.

ORDER
It is hereby ORDERED that the request by the Cottonwood Teachers Association
to withdraw the exceptions to the administrative law judge's proposed decision in Case
No. SA-CE-2399-E is hereby GRANTED.
Members Mckeag and Dowdin Calvillo joined in this Decision.
4
ORDER
4
It is hereby ORDERED that the request by the Cottonwood Teachers Association
to withdraw the exceptions to the administrative law judge's proposed decision in Case
No. SA-CE-2399-E is hereby GRANTED.
Members McKeag and Dowdin Calvillo joined in this Decision.