Regents of the University of California (Lawrence Livermore National Laboratory) (PERB 0212HA)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
LABORERS
	LOCAL
	1276,
	LIUNA, 	AFL-CIO
and
	ALAMEDA
	COUNTY
	BUILDING
	AND
CONSTRUCTION 	TRADES
	COUNCIL,
Charging
	Parties,
V •
REGENTS
	OF
	THE
	UNIVERSITY
	OF
CALIFORNIA,
	LAWRENCE
	LIVERMORE
NATIONAL 	LABORATORY,
Respondent.
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____________________ )
Case
	No.
	SF-CE-2-H
Request
	for
	Reconsideration
PERE
	Decision
	No.
	212-H
PERE
	Decision
	No.
	212a-H
August 	24,
	1982
Appearances:	
Donald 	L.
	Reidhaar,
	James
	N.
	Odle, 	Claudia 	Cate
	and
Susan	
M.	
Thomas,
	Attorneys 	for 	the
	Regents
	of 	the
	University 	of
California.
Before
	Jensen, 	Jaeger
	and
	Tovar,
	Members.
DECISION
The
	Public
	Employment
	Relations
	Board
	(hereafter
	PERB
	or
Board), 	having 	duly 	considered 	the 	request 	for
	reconsideration
filed
	by
	the
	Regents
	of 	the 	University 	of
	California 	(hereafter
Regents), 	hereby 	denies
	that 	request.
DISCUSSION
In 	Regents 	of 	the 	University 	of 	California,
	Lawrence
Livermore
	National 	Laboratory 	(4/30/82)
	PERB
	Decision
No. 	212-H,
	(hereafter
	Regents) 	the
	Board
	held, 	inter 	alia, 	that
Laborers 	Local 	1276, 	Laborers 	International
	Union
	of 	North
America,
	AFL-CIO, 	and 	Alameda 	County 	Building 	and
	Construction

Trades 	Council 	(hereafter 	referred 	to 	jointly 	as 	Charging
Parties) 	had 	the 	right 	to 	access 	to 	the 	employee 	lunchroom 	in
the 	"321" 	exclusion 	area 	with 	reasonable 	advance 	notice 	and
with 	reasonable 	frequency, 	and 	that 	Charging 	Parties 	could 	not
be 	required 	to 	reimburse 	the 	Regents 	for 	the 	cost 	of 	escort
services 	utilized 	when 	gaining 	access 	to 	the 	restricted 	areas
of 	the 	Laboratory. 	(Regents, 	supra, 	at 	pp. 	16-18.) 	Regents,
supra, 	is 	incorporated 	by 	reference 	herein.
To 	demonstrate 	that 	reconsideration 	is 	warranted 	under 	PERB
rule 	32410, 1 the 	Regents 	must 	show 	the 	existence 	of
"extraordinary 	circumstances." 	Livermore 	Valley 	Joint 	Unified
School 	District 	(10/21/81) 	PERB 	Order 	No. 	JR-9. 	The 	Regents
contend 	that 	extraordinary 	circumstances 	exist 	in 	this 	case
because 	they 	were 	denied 	due 	process 	when 	the 	administrative
law 	judge 	denied 	their 	request 	for 	a 	continuance, 	thus
lpERB 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31000 	et 	seq.
Section 	32410 	provides, 	in 	pertinent 	part:
(a) 	Any 	party 	to 	a 	decision 	of 	the 	Board
itself 	may, 	because 	of 	extraordinary
circumstances, 	file 	a 	request 	to 	reconsider
the 	ision 	with 	the 	Board 	itself 	wi
10 	days 	following 	the 	date 	of 	service 	of 	the
decision. 	The 	request 	for 	reconsideration
shall 	be 	filed 	with 	the 	Executive 	Assistant
to 	the 	Board 	and 	shall 	state 	with
specificity 	the 	grounds 	claimed 	and, 	where
applicable, 	shall 	speci 	the 	page 	of 	the
record 	relied 	on. 	Serv 	and
service 	of 	the 	request 	pursuant 	to 	Section
32140 	are 	required.
2

allegedly 	foreclosing
	the
	introduction
	of
	relevant
	evidence
regarding 	the 	access
	rulings
	at
	issue 	herein.
	The
	Regents
requested
	a
	continuance
	on
	August 	4, 	1980,
	during 	the 	course
	of
the 	hearing
	in 	the 	underlying
	case.
	The
	basis
	for 	the
	request
was
	that
	the
	Regents
	believed
	that 	their
	access
	regulations
vis-a-vis
	the 	Laboratory
	would 	be
	altered 	substantially
	by
another 	case
	which
	was
	pending
	at
	that
	time
	involving
California 	State
	Employees
	Association,
	Regents
	of
	the
University 	of
	California
	(9/3/80)
	PERB
	Decision
	No. 	HO-U-82
(hereafter
	the
	CSEA
	order),
	and
	that
	it
	would 	be
	appropriate 	to
delay 	taking 	evidence
	regarding 	the 	access
	rules
	at
	issue
	in
the
	instant
	case
	until 	after
	the
	resolution
	of 	the
	CSEA
	case
and
	the
	attendant
	change
	in 	access
	regulations.
	The
administrative
	law
	judge 	denied
	that
	request 	without
	prejudice,
resting 	his 	decision
	on
	the
	fact 	that
	the
	Regents
	refused,
	at
the
	time
	of
	their
	motion
	for 	continuance, 	to 	disclose
	what
changes 	in 	access
	were
	being 	contemplated.
	The
	Regents
	did 	not
renew
	their
	request 	for 	continuance
	at
	any
	time
	prior 	to 	the
close
	of 	hearing,
	though
	they
	were
	at
	all
	times
	privileged 	to
do	
so.
	The	
Regents 	argue
	that,
	had
	the 	continuance	
been
granted, 	they
	would 	have 	been
	able 	to 	introduce 	evidence
regarding 	operation 	of 	their
	access 	policy 	as 	revised
	by
	the
CSEA	
order, 	supra.
	They	
fail
	to 	indicate, 	generally 	or
specifically,
	what 	evidence 	they
	would
	introduce 	regarding
access 	to 	the
	11
321
11
	lunchroom 	or 	reimbursement 	for 	escort
services. 
3

The 	Regents 	request 	that 	we 	either 	remand 	the 	case 	to 	the
administrative 	law 	judge 	for 	the 	taking 	of 	additional 	evidence
respecting 	those 	issues 	or, 	in 	the 	alternative, 	reverse 	our
findings 	with 	respect 	thereto 	without 	additional 	evidence.
The 	CSEA 	case 	was 	decided 	pursuant 	to 	a 	stipulated 	order 	by
the 	parties. 	The 	administrative 	law 	judge 	treated 	the 	access
regulations 	promulgated 	thereunder 	as 	a 	given 	in 	ruling 	on 	the
reasonableness 	of 	the 	access 	restrictions 	involved 	in 	the
instant 	case. 	Further, 	he 	solicited 	special 	briefs 	by 	the
parties 	to 	enable 	them 	to 	express 	their 	views 	of 	the 	order 	in
that 	case 	and 	its 	impact 	upon 	the 	instant 	case. 	The 	Board
itself 	similarly 	considered 	the 	access 	policies 	established 	by
the 	CSEA order 	as 	the 	status 	quo 	in 	assessing 	the
reasonableness 	of 	the 	policies 	at 	issue 	in 	the 	instant 	case,
and 	reviewed 	the 	arguments 	set 	forth 	in 	the 	supplemental 	briefs
by 	the 	parties 	regarding 	the 	CSEA order.
In 	granting 	limited 	access 	rights 	to 	the 	lunchroom 	in 	the
"321" 	area, 	the 	Board 	applied 	a 	basic 	reasonableness 	test. 	We
considered 	the 	alternative 	meeting 	facilities 	available 	to
charging 	parties 	under 	the 	CSEA order 	in 	assessing 	the 	need 	of
charging 	parties 	for 	access 	to 	the 	lunchroom. 	(Regents, 	supra,
p. 	17.) 	We 	fail 	to 	see 	how 	evidence 	as 	to 	the 	operation 	of
access 	policies 	under 	the 	CSEA order 	could 	have 	altered 	our
determination 	as 	to 	the 	reasonableness 	of 	denial 	of 	access 	to
that 	area 	on 	a 	limited 	basis. 	Further, 	we 	fail 	to 	see 	how 	the
4

Regents
	were
	prevented
	from
	introducing 	other 	relevant
	evidence
regarding
	that
	issue
	by
	the
	administrative
	law
	judge's
	denial
of
	their
	request
	for
	a
	continuance.
	The
	Regents
	were
	not
prevented,
	by
	denial
	of
	that
	request 	or
	for
	any
	other 	reason,
from
	presenting
	evidence 	regarding 	the
	cost
	of
	security
downgrading
	of 	the
	lunchroom
	or
	any
	other
	relevant
	evidence.
Similarly,
	the
	Regents
	were
	in
	no 	manner
	prevented
	from
introducing
	evidence
	regarding 	the
	cost
	of
	escort 	services,
	or
from
	demonstrating 	in
	any
	other
	manner
	that
	it
	would 	be
	unduly
burdensome
	for 	the
	Regents
	to
	bear 	the
	expense
	of
	that
necessary
	security
	measure.
	The
	Regents
	were
	not 	prevented
	by
any
	ruling 	of 	the
	Board
	or 	the
	administrative
	law
	judge
	from
demonstrating
	that
	visitors
	other
	than
	employee
	organizations
are 	required 	to
	reimburse 	the
	Regents
	for
	escort 	services.
	As
with 	the
	lunchroom
	issue,
	we
	fail
	to
	see
	how
	evidence
	regarding
experience
	under
	the
	CSEA
	order
	would
	cause
	us
	to
	modify
	or
reverse
	our
	determination
	that
	the 	reimbursement
	requirement
was
	an
	impermissible 	access
	limitation.
	We
	therefore 	disagree
that
	the 	Regents
	were
	deprived 	of
	due
	process 	through
	the
denial 	of	
their
	request	
for	
a
	continuance 	or 	in
	any	
other
manner.
For
	the 	reasons
	set 	forth
	above, 	and
	the 	record 	as
	a
	whole,
we
	find 	that
	the 	Regents 	have	
failed 	to 	demonstrate 	the
existence 	of 	extraordinary 	circumstances
	which 	would
	warrant
reconsideration.
	We
	thus 	deny
	their 	request 	for
reconsideration. 
5

ORDER
1.
	The
	request
	by
	the
	Regents
	of
	the 	University 	of
California 	that
	the
	Public
	Employment
	Relations
	Board
	grant
reconsideration
	of
	Regents
	of
	the
	University 	of
	California,
Lawrence
	Livermore
	National
	Laboratory 	(4/30/82)
	PERB
	Decision
No. 	212-H
	is
	DENIED.
By:
	VirgiVJ~n/4)n,
	Member 	JoiVi
Jaeger,
	Member
Irene
	Tovar,
	Member
6