San Joaquin Delta Community College District (PERB 0261EB)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	and 	its 	DELTA 	COLLEGE
CHAPTER 	359,
Charging 	Party,
v.
SAN 	JOAQUIN 	DELTA 	COMMUNITY
COLLEGE 	DISTRICT,
Respondent.
Case No. 	S-CE-360
Request 	for 	Reconsideration
PERB Decision No. 	261
HERB Decision No. 	261b
March 16, 	1983
Appearances: 	Peter A. 	Janiak, 	Attorney for 	the California
School Employees 	Association 	and 	its 	Delta College 	Chapter 	359;
and J. 	Michael 	Phelps, 	Attorney 	for 	the 	San Joaquin Delta
Community 	College 	District.
Before Gluck, Chairperson, Jaeger 	and Burt, Members.
DECISION
BURT, Member: 	The Public Employment Relations Board 	(PERB
or 	Board), 	having duly considered 	the 	request 	for
reconsideration 	filed 	by 	the 	San 	Joaquin Delta Community
College District 	(District), 	hereby denies 	that 	request.
DISCUSSION
In San Joaquin Community College 	District 	(11/30/82) 	PERB
Decision No. 	261, 	the Board 	held 	that 	the District
discriminatorily 	transferred 	Burton 	Gray 	from 	the 	campus 	police
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force 	to 	the 	grounds 	crew, 	thus 	violating 	subsections 	3543.5(a)
and 	(b) 	of 	the 	Educational Employment 	Relations 	Act 	(EERA).1
PERB Decision No. 	261 	is 	incorporated 	by 	reference 	herein.
To demonstrate 	that 	reconsideration 	is 	warranted 	under 	PERB
rule 	32410,2 the 	District must 	show 	the 	existence 	of
"extraordinary 	circumstances." 	Livermore Valley 	Joint 	Unified
School District 	(10/21/81) 	PERB Order No. 	JR-9. 	The District
1EERA 	is 	codified 	at 	Government 	Code 	sections 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless otherwise 	noted. 	Subsections 	3543.5(a) 	and 	(b) 	provide
as follows:
It 	shall 	be 	unlawful 	for 	a public school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, or 	coerce
employees 	because 	of 	their 	exercise of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
2pERB 	rules 	and 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 	et 	seq. 	Section
32410 provides 	as 	follows:
(a) 	Any party 	to a decision of 	the Board
itself 	may, 	because of extraordinary
circumstances, 	file a 	request 	to 	reconsider
the decision 	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
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contends 	that 	extraordinary 	circumstances 	exist 	in 	this 	case
because 	the 	Board 	committed 	prejudicial errors 	of 	fact, 	and
further 	argues 	that 	newly 	discovered 	evidence 	should 	be
considered 	by 	the 	Board.
The 	District 	first 	argues 	that 	the 	Board 	erred 	in 	its
factual 	finding 	that 	the District 	was 	aware 	of 	Burton Gray's
participation 	in 	his 	wife 	Shirley Gray's 	affirmative 	action
appeal. 	It 	argues 	that, 	while 	other District officials may
have 	had 	such 	knowledge, 	the 	two District officials 	who made
the 	decisions 	regarding Gray's 	discipline, 	Bandley 	and DeRicco,
were 	unaware of 	such participation. 	In 	this 	regard, 	we note
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.
W
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that 	the May 9, 	1980 	petition 	from other 	officers, 	which
prompted 	the 	disciplinary action 	against 	Burton Gray, 	made 	a
direct 	reference 	to 	that 	affirmative 	action grievance.
Gray 	was 	summoned 	to 	a meeting 	by 	District 	officials 	on
May 14, 	1980 	and 	confronted 	by, 	among 	others, 	Bandley 	and
DeRicco, 	who 	questioned 	him about 	the 	allegations 	in 	the 	letter
and 	petition. 	We 	thus 	reject 	the 	allegation 	that Bandley 	and
DeRicco 	lacked 	knowledge 	of 	Gray's 	role 	in 	the 	affirmative
action 	grievance 	filed 	by Shirley Gray. 	The 	record 	amply
demonstrates 	that 	the 	administration of 	the 	District 	in
general, 	and Bandley 	and DeRicco 	in particular, 	were 	aware of
Burton Gray's 	participation 	therein.
The 	next 	error 	of 	law 	alleged 	by 	the District 	is 	the
Board's 	conclusion 	that 	DeRicco 	expressed 	animus 	against 	Gray
for 	his 	activities 	on 	behalf 	of 	California School Employees
Association 	(CSEA). 	The District's 	arguments 	in this 	regard
are 	nothing 	more 	than a 	restatement of 	its 	arguments 	at 	trial
and 	in post-hearing 	briefs 	and 	exceptions. 	Nothing 	in the
District's 	current 	presentation of 	these 	arguments 	convinces
the 	Board 	that 	it 	erred 	in concluding 	that 	DeRicco's 	remarks
were 	an expression of 	anti-union 	animus.
Next, 	the District 	alleges 	that 	the Board's 	finding 	that
Gray's 	discipline 	was 	connected 	to 	his 	monitoring 	of 	the CSO
program 	and 	criticism 	thereof 	was 	an 	error 	of 	fact. 	That
finding 	was 	based 	upon 	our 	consideration of 	circumstantial
evidence. 	The 	District 	presents 	no 	new material regarding 	this

issue, 	but merely 	attempts 	to reargue matters 	raised 	in 	its 	.
exceptions 	and 	fully considered 	by 	the 	Board. 	Nothing 	in 	the
District's 	reargument 	causes 	us 	to 	reconsider 	our 	earlier
finding .
The 	next claim 	by 	the 	District 	in support 	of 	its 	request 	is
that 	tape 	recordings 	and 	other 	material 	elicited 	in 	the
discovery phase 	of 	a 	civil 	rights 	suit 	filed 	by 	the 	Grays
constitute 	newly discovered 	evidence. 	The 	tape 	recordings,
made 	by CSEA, 	are of 	testimony taken at 	the July 24, 	1980
District disciplinary 	hearing. 	Among 	the 	bases 	for 	PERB's
underlying 	decision was 	that 	the 	evidence 	of Gray's 	wrongdoing
presented 	at 	that 	hearing 	was 	extremely 	weak. 	The District 	was
provided 	with 	a 	full 	and 	fair 	opportunity 	to present 	PERB 	with
evidence 	as 	to 	what 	transpired 	at 	that 	hearing. 	At 	the 	PERB
hearing 	in November 	and December 	of 	1980, 	the District did
introduce 	testimony of 	the 	witnesses 	who 	testified 	before 	the
District 	at 	the 	disciplinary hearing. 	Those witnesses 	had 	a
full 	opportunity 	to 	relate 	their 	recollection 	as 	to 	what 	their
testimony was 	at 	that 	disciplinary 	hearing. 	The 	District 	then
had 	a full 	and 	fair 	opportunity 	to brief 	that 	issue, 	along 	with
the other 	issues 	in 	the 	case, 	to 	the 	administrative 	law 	judge
(ALJ) 	in 	its 	trial brief, 	submitted April 6, 	1981. 	The ALJ's
decision 	issued May 	8, 	1981. 	The 	District 	filed 	exceptions 	to
the Board on May 	28, 	1981. 	PERB's Decision 	and Order 	issued on
November 30, 1982.
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According 	to 	the District, 	"the 	reasonableness of 	its
discipline 	of 	Burton Gray 	must 	be 	judged 	from 	the 	testimony
given, 	and 	the 	evidence 	reintroduced 	at 	the July 	24, 	1980
disciplinary hearing, 	rather 	than 	the 	testimony given 	at 	the
PERB hearing." 	According 	to 	the District, 	the 	tapes 	show 	that
the 	testimony of 	certain witnesses 	at 	the 	disciplinary hearing
contradicted 	their 	recollection of 	that 	testimony, 	which 	was
given 	under 	oath 	at 	the 	subsequent PERB hearing. 	Thus,
according 	to 	the District, 	the 	evidence 	in 	tape-recorded 	form
is 	more 	damaging 	to Burton Gray 	than 	testimony of 	those 	same
witnesses 	before 	the 	PERB hearing. 	The District 	in 	essence
seeks 	to 	impeach 	the 	testimony given 	by 	its 	own 	witnesses 	at
the 	PERB 	hearing 	through 	introduction of 	allegedly 	newly
discovered 	evidence 	on 	reconsideration.
According 	to 	the District, 	the 	tape 	recordings 	in question
were 	obtained 	from CSEA pursuant 	to 	the 	discovery process 	in
the civil rights suit ". 	. 	. 	in or about early July, 	1981."
PERB 	first 	received 	notice 	of 	the 	existence 	of 	such material on
December 	20, 	1982, 	when 	the 	instant 	request for 	reconsideration
was 	filed, 	approximately 18 months 	after 	the 	tapes 	came 	into
the District's 	possession.
We 	decline 	to 	consider 	this 	allegedly 	newly 	discovered
evidence, 	for 	the 	reasons which follow.
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Under 	the 	test 	for 	discrimination 	set 	forth 	in Novato
Unified School District 	(4/30/82) 	PERB Decision No. 	210, 	once
the 	charging 	party 	raised 	the 	inference 	that 	the 	transfer 	of
Gray 	was 	improperly motivated, 	the 	burden 	shifted 	to 	the
District 	to 	demonstrate 	that 	it 	would 	have 	so disciplined Gray
regardless 	of 	his 	protected 	activity. 	The District 	thus 	had
the 	burden of 	producing 	evidence 	regarding 	its 	basis 	for
discipline.
It did 	introduce 	such 	evidence, 	including 	the 	recollection
of 	its 	own 	witnesses 	as 	to 	their 	testimony 	at 	the PERB
hearing. 	PERB considered 	that 	evidence 	and 	reached 	its
conclusion. 	In 	urging 	PERB 	to 	consider 	the 	"newly discovered"
evidence 	herein, 	the District 	does 	not 	argue 	that 	PERB 	reached
an 	unjustifiable 	result 	based 	upon 	the 	evidence 	before 	it.
Rather, 	the 	District 	seeks 	to have PERB consider 	its 	"new"
evidence 	and 	reach 	a 	contrary 	conclusion.
In deciding 	whether 	to 	consider 	the 	taped 	evidence, 	we 	have
been 	guided 	by 	applicable 	statutes 	and 	precedent 	governing 	such
claims 	in civil cases.
As 	noted 	supra, 	PERB's rule 	32410 provides, 	in pertinent
part, as follows:
. 	. 	. 	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. . . .
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That 	language 	parallels 	the 	standard 	utilized 	by 	civil
courts 	in 	determining 	whether 	to 	grant 	a new 	hearing 	on 	the
basis of 	newly discovered 	evidence. 	The California Code 	of
Civil Procedure provides, 	at section 657.4:
The 	verdict may 	be 	vacated 	and 	any 	other
decision may 	be modified or 	vacated, 	in
whole 	or 	in 	part, 	and a 	new or 	further 	trial
granted 	on 	all or 	part of 	the 	issues, 	on 	the
application of 	the 	party 	aggrieved, 	for 	any
of 	the 	following 	causes, 	materially
affecting 	the 	substantial 	rights 	of 	such
party;
4. 	Newly discovered 	evidence, 	material 	for
the party making 	the 	application, 	which 	he
could 	not, 	with 	reasonable diligence 	have
discovered 	and 	produced 	at 	the 	trial.
In discussing 	the 	above-cited 	statutory 	language, 	the 	leading
authority 	on California 	law 	indicates 	that 	"because 	of 	the
possibility 	that 	the 	moving 	party may 	have 	been 	guilty of
neglect, 	this 	ground 	is 	looked 	upon with 'distrust and
disfavor', and 	a 	strong 	showing 	of 	the 	essential 	requirements
must be made." 	Witkin, California Procedure 	(1971) 	vol. 	5, 	at
p. 	3606. 	A recent 	appellate 	court 	decision 	restated 	this
general 	rule, 	holding 	that 	the 	party 	asserting 	newly discovered
evidence 	as 	a ground 	for 	a motion 	for 	a new 	trial must
establish 	that 	the evidence 	(1) 	is 	newly discovered; 	(2) 	that
reasonable diligence 	has 	been 	exercised 	in 	its 	discovery and
production; 	and 	(3) 	that 	it 	is material 	in the 	sense 	that 	it 	is
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likely 	to produce 	a different 	result. 	Horowitz v. 	Noble 	(1978)
79 Cal.App.3d 120 	[144 Cal.Rptr. 	710]. 	The District's
submission clearly 	fails 	to 	satisfy 	the 	first 	two 	requirements.
As 	to 	the 	requirement 	that 	the 	evidence 	be 	newly
discovered, 	we 	note 	that 	the 	evidence 	which 	the District 	seeks
to 	introduce 	is 	not 	new, 	and 	is 	newly discovered only 	in the
limited 	sense 	that 	its 	existence 	in 	tape-recorded 	form 	had 	not
been 	discovered 	by 	the District 	at 	the 	time of 	the PERB
hearing. 	However, 	the declarants of 	the 	evidence 	in question
were 	present 	and 	available 	to 	testify, 	and 	did 	in fact 	testify,
at 	the PERB hearing. 	Presumably, 	they were 	aware of 	the
content 	of 	their 	own 	testimony 	at 	the 	District 	disciplinary
hearing. 	Thus, 	the 	evidence 	itself 	is 	not 	newly discovered 	by
the District 	at 	all.
The 	second 	requirement, 	that 	of 	diligence 	in presentation
of 	newly discovered 	evidence, 	is 	strongly emphasized 	in 	the
cases. 	Lack 	thereof 	is 	a frequent 	reason 	for 	denial of 	new
trial motions 	and/or 	reversals of 	orders 	for 	new 	trials.
Witkin, 	supra, 	p. 	3609. 	As one court of appeals noted
recently, 	". 	. 	. 	it 	is evident that 	the parties seeking
reconsideration must 	provide 	not 	only new evidence, 	but 	also 	a
satisfactory explanation 	for 	the 	failure 	to produce 	that
evidence 	at 	an 	earlier 	time." 	Blue Mountain Development
Company v. 	Chester Carvill 	(1982) 	132 Cal.App.3d 1005, 	at 1013.
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Here, 	the District 	had 	the 	allegedly 	newly discovered
evidence 	in 	its 	possession 	for 	18 months 	before 	presenting 	it
to 	the 	trier 	of 	fact. 	The 	evidence 	could 	have 	been submitted
to PERB at 	or 	near 	the 	time 	the District 	received 	it, 	in July
of 	1981, 	slightly 	more 	than a month 	after 	the District 	filed
its 	exceptions 	and 	well 	in advance 	of 	issuance 	of 	PERB's
decision. 	The 	Board 	might 	have 	been 	amenable 	to 	reopening 	the
record 	and 	considering 	such 	evidence 	at 	that 	time. 	The
District 	provides 	absolutely 	no 	explanation 	for 	waiting 	18
months 	before 	disclosing 	such 	evidence. 	For 	this 	reason, 	we
decline 	to 	consider 	the 	alleged 	newly-discovered 	evidence
submitted 	by 	the 	District.
Having 	thus 	rejected 	each 	of 	the 	District's 	arguments 	in
support of 	its 	request for 	reconsideration, 	for 	the 	reasons 	set
forth 	above, 	we 	find 	that 	the District has 	failed 	to
demonstrate 	the 	existence 	of 	extraordinary 	circumstances
warranting 	reconsideration.
ORDER
The 	request 	by 	San Joaquin Delta 	Community College 	District
that 	the 	Public Employment Relations 	Board 	grant
reconsideration 	of 	San Joaquin Delta 	Community College 	District
(11/30/82) 	PERB Decision No. 	261, 	is DENIED.
Chairperson 	Gluck 	and 	Member 	Jaeger 	joined 	in 	this 	Decision.
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