Regents of the University of California Professional Scientists and Engineers (Lawrence Livermore National Laboratory) (PERB 0246HC)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
IN THE MATTER OF:
UNIT 	DETERMINATION 	FOR PROFESSIONAL
SCIENTISTS 	AND ENGINEERS,
LAWRENCE 	LIVERMORE NATIONAL
LABORATORY, 	OF THE UNIVERSITY
OF 	CALIFORNIA 	PURSUANT 	TO
CHAPTER 744 	OF THE 	STATUTES 	OF 1978
(HIGHER EDUCATION 	EMPLOYER-
EMPLOYEE 	RELATIONS 	ACT)
) 	Case Nos.
SF-PC-1001-H et 	al.
Request 	for 	Reconsideration
PERB 	Decision No. 	246b-H
PERB 	Decision No. 	246c-H
August 	19, 	1983
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Appearances; 	Philip E. 	Callis, 	Attorney for California State
Employees Association; 	Bonnie Kathleen Gibson 	and
Lynne C. Hermle, Attorneys 	(Corbett, Kane, Berk & Barton), and
James N. 	Odle, 	Associate Counsel 	for 	the Regents of 	the
University 	of 	California.
Before: Tovar, Jaeger, Morgenstern, and Burt, Members.*
DECISION
On March 	8, 	1983, 	the Public Employment Relations Board
(PERB or Board) 	issued 	a 	decision1 under 	the Higher Education
Employer-Employee 	Relations 	Act 	(HEERA)2 determining 	which
employees 	or 	classifications 	should 	be 	excluded 	as managerial
*Chairperson Gluck 	did 	not participate 	in 	this 	decision,
1In 	the Matter 	of: 	Unit 	Determination 	for 	Professional
Scientists 	and Engineers, 	Lawrence Livermore National
Laboratory of 	the University of California, 	Pursuant 	to
Chapter 	744 	of 	the Statutes of 	1978 	(Higher Education
Employer-Employee Relations Act) 	(3/8/83) 	PERB Decision
No. 246b-H.
2The HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq.

or 	supervisory 	in 	the professional 	scientists 	and 	engineers
bargaining 	unit 	at 	the 	Lawrence 	Livermore National 	Laboratory
of 	the University of California 	(UC). 	Thereafter, 	UC and 	the
California State Employees Association 	(CSEA) 	each 	filed 	a
request 	for 	reconsideration 	of 	the 	Board's 	exclusionary
decisions 	relating 	to supervisors. 	Neither 	party 	requested
reconsideration 	of 	the managerial 	exclusions.
More 	specifically, 	UC claimed 	that 	the Board misinterpreted
UC's 	evidence 	submitted 	in 	the 	form of 	declarations 	for 	the
purpose 	of 	establishing 	a prima 	facie 	case 	for 	the 	exclusion of
numerous 	supervisors. 	The 	procedure 	regarding 	declaration
evidence 	was previously described 	in PERB Decision No. 	246b-H,
supra. 	UC 	stated 	that 	the Board's 	alleged misinterpretation
resulted 	from both 	errors of 	fact 	and 	law. 	UC also claimed
that 	the Board 	violated 	UC's 	due 	process 	rights 	by giving 	undue
weight 	to 	the 	few 	counter-declarations 	submitted 	by CSEA.
CSEA, 	in 	its 	request 	for 	reconsideration, 	presented
allegedly 	"newly discovered" 	evidence 	in 	the 	form of 	a
declaration 	and 	urged 	the 	Board 	to 	find 	inadequate 	the UC
declaration 	statements 	relating 	to 	the 	evaluation of
probationary employees. 	In PERB Decision No. 	246b-H, 	supra,
the Board's 	decision 	in 	fact 	found 	such 	statements 	sufficient
to 	establish 	supervisory 	authority.
Both 	the 	UC 	and 	CSEA 	requests 	for 	reconsideration 	are
denied 	for 	failure 	to 	show 	"extraordinary circumstances" 	as
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required 	by PERB 	rule 	32410.3 	The Board 	fully 	considered 	the
substance 	of 	the 	UC 	declarations 	and 	CSEA counter-declarations
and 	the 	due 	process 	concerns 	raised 	by UC 	in 	its 	initial
exclusionary 	decision.
3pERB 	rules 	are 	codified 	at California Administrative
Code, 	title 8, 	section 31001 et seq.
Rule 	32410 provides:
(a) 	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. 	An
original 	and 	5 	copies of 	the 	request 	for
reconsideration 	shall 	be 	filed 	with 	the
Board 	itself 	in 	the 	headquarters office 	and
shall 	state 	with 	specificity 	the 	grounds
claimed and, 	where applicable, 	shall specify
the 	page 	of 	the 	record 	relied on. 	Service
and 	proof of 	service 	of 	the 	request pursuant
to Section 	32140 	are 	required. 	The grounds
for 	requesting 	reconsideration 	are 	limited
to claims 	that 	the 	decision of 	the Board
itself 	contains prejudicial 	errors of 	fact,
or 	newly 	discovered 	evidence 	or 	law which
was 	not 	previously 	available 	and 	could 	not
have 	been 	discovered 	with 	the 	exercise 	of
reasonable diligence.
(b) 	Any party shall have 	20 days 	from
service 	to 	file 	a 	response 	to 	the 	request
for 	reconsideration. 	An original 	and 	5
copies 	of 	the 	response 	shall 	be 	filed with
the Board 	itself 	in 	the 	headquarters
office. 	Service 	and proof of 	service of 	the
response 	pursuant 	to Section 	32140 	are
required.
(c) 	The 	filing of a 	request 	for
reconsideration 	shall 	not 	operate 	to 	stay
the 	effectiveness 	of 	a decision of 	the Board
itself 	unless 	otherwise 	ordered 	by 	the Board
itself.
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The 	Board 	determined 	that 	the 	evidence was 	to be
"conservatively 	approached." 	UC was 	required 	to 	satisfy 	its
burden 	to 	establish 	a prima 	facie 	case 	for 	exclusion of 	each
employee 	it claimed 	to be 	supervisory. 	However, 	the
declarations 	submitted 	by UC 	generally 	contained merely
conclusory 	statements 	which 	lacked 	sufficient 	detail 	which
would 	have 	assisted 	the Board 	in 	understanding 	the 	true 	role of
these employees 	in hiring, 	transfers, promotions, discipline,
grievance 	resolution 	and 	other 	supervisory 	functions. 	In
March 	1983, 	faced with 	these declarations, 	and 	in the midst of
a process 	that had 	begun 	in July 1978, 	the Board 	rendered 	its
decision. 	In 	reviewing 	the 	submitted declarations, 	the Board
was 	able 	to 	find 	sufficient 	supervisory duties 	only 	among 	those
employees 	who 	were 	responsible 	for 	performance 	evaluations
which 	were 	critical 	to 	a 	determination whether 	probationary
employees 	would 	be 	retained 	or 	discharged 	from 	employment.
The 	CSEA 	request 	for 	reconsideration which 	questions 	the
Board's 	findings 	regarding 	performance 	evaluations 	certainly
details 	the 	type 	of 	evidence 	that 	both 	parties might 	have
submitted 	in 	declarations 	containing 	specific 	factual
allegations. 	However, 	the 	facts 	set 	forth 	in CSEA's request
are 	not 	newly 	discovered 	as 	CSEA could well 	have presented 	such
facts before PERB Decision No. 	246b-H, 	supra.
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For 	the 	foregoing 	reasons, 	the 	requests 	for 	reconsideration
submitted 	by UC 	and 	CSEA 	are 	denied.
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment Relations Board ORDERS 	that 	the
requests 	for 	reconsideration 	of 	the 	supervisory 	exclusions 	from
the 	bargaining 	unit 	of professional 	scientists 	and 	engineers 	at
the 	Lawrence 	Livermore 	National 	Laboratory of 	the University of
California, 	filed 	by 	the 	University of California 	and 	the
California State Employees Association, 	are DENIED for 	failure
to 	show 	extraordinary circumstances.
By 	the BOARD
un	
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