State of California (Department of Food and Agriculture) (PERB 1290SA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KOFI OPONG-MENSAH,
Charging Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF FOOD AND AGRICULTURE),
Respondent.
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Case No. 	SA-CE-1074-S
Request 	for Reconsideration
PERB Decision No. 	1290-S
PERB Decision No. 	1290a-S
January 14, 	1999
Appearances: 	Kofi Opong-Mensah, 	on his own behalf; 	State of
California 	(Department of Personnel Administration) 	by Warren C.
Stracener, 	Labor Relations Counsel, 	for State of California
(Department of Food and Agriculture).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on a request by Kofi
Opong-Mensah 	(Opong-Mensah) 	that the Board reconsider 	its
decision 	in 	State 	of 	California 	(Department 	of 	Food and
Agriculture) 	(1998) 	PERB Decision No. 	1290-S 	(Food and
Agriculture). 	In Food and Agriculture, 	the Board concluded that
the 	State of 	California 	(Department of 	Food and Agriculture) 	did
not violate section 3519 	of the Ralph C. 	Dills Act 	(Dills Act)1
1The 	Dills Act 	is 	codified at Government Code 	section 	3512
et seq. 	Unless otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 	3519
states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state to do any
of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise

by 	denying Opong-Mensah's 	requests 	for 	information or by
discriminating 	against him 	for 	his 	exercise 	of 	protected
activity.
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
DISCUSSION
PERB Regulation 	324102 permits 	any party to 	a decision of
the 	Board 	itself 	to 	request 	reconsideration of 	its 	decision.
Regulation 32410 	states, 	in pertinent part:
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.
The 	Board has 	strictly 	applied these 	limited 	grounds 	in
considering 	reconsideration 	requests 	specifically 	to 	avoid 	the
use 	of 	the 	reconsideration process 	to reargue 	or relitigate
issues which have 	already been decided. 	(Redwoods 	Community
College District 	(1994) 	PERB Decision No. 	1047a; 	State of
California 	(Department of Corrections) 	(1995) 	PERB Decision
No. 	ll00a-S.) 	Similarly, 	reconsideration will not be granted
based 	on 	a 	claim of 	an alleged prejudicial 	error 	of 	law.
(Jamestown Elementary School 	District 	(1989) 	PERB Decision
2PERB regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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No. 	Ad-187a.) 	In numerous request for reconsideration cases, 	the
Board has 	declined to 	reconsider matters 	previously 	offered 	by
the parties 	and rejected 	in the underlying decision. 	(California
State University 	(1995) 	PERB Decision No. 	1093a-H; 	California
State Employees Association, 	Local 1000 	(Janowicz) 	(1994) 	PERB
Decision No. 	1043a-S; 	California Faculty Association 	(Wang)
(1988) 	PERB Decision No. 	692a-H; 	Tustin Unified School District
(1987) 	PERB Decision No. 	626a; 	Riverside Unified School District
(1987) 	PERB Decision No. 	622a.)
On October 29, 	1998, 	Opong-Mensah filed the instant request
seeking reconsideration of 	the 	Board's 	decision 	in Food and
Agriculture 	based on his 	claim of 	"new evidence," 	consisting of
copies of documents provided to him on June 24, 	1998. 	Opong-
Mensah 	filed the 	original unfair practice 	charge 	in this 	case 	on
January 13, 	1998, 	and amended the charge on July 13, 	1998. 	Since
his 	amended 	charge was 	filed 	after 	the 	date Opong-Mensah 	obtained
the documents he describes as 	"new evidence," 	it 	is clear that
Opong-Mensah could have 	included this 	evidence 	in his 	amended
charge and brought 	it to the attention of the Board agent.
(Regents 	of the University of California 	(1998) 	Decision
No. 	1271-H at p. 	3.)
Opong-Mensah has 	not 	demonstrated 	that 	the 	information he
presents 	as 	new evidence was not previously available with the
exercise of reasonable diligence. 	Additionally, 	some of the
evidence 	included 	in his 	reconsideration request was 	previously
included 	in his 	appeal 	in the underlying case, 	and has 	already
. . -	. . .
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been considered by the Board. 	Therefore, 	Opong-Mensah's request
fails 	to demonstrate 	grounds 	for reconsideration 	sufficient 	to
comply with PERB Regulation 	32410.
ORDER
The request 	for reconsideration 	in 	State 	of 	California
(Department of Food and Agriculture) 	(1998) 	PERB Decision
No. 	1290-S is hereby DENIED.
Members 	Dyer 	and Amador 	joined 	in this 	Decision.
. P . . .
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