State of California (Water Resources Control Board) (PERB 1337SA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PROFESSIONAL 	ENGINEERS 	IN
CALIFORNIA GOVERNMENT,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(WATER
RESOURCES CONTROL BOARD),
Respondent.
) 	Case No. 	SA-CE-1083-S
Request 	for Reconsideration
PERB Decision No. 	1337-S
PERB Decision No. 	1337a-S
December 2, 	1999
)
)
)
)
)
)
)
Appearances: 	Gerald James, 	Attorney, 	for Professional Engineers
in California Government; 	State of 	California 	(Department 	of
Personnel Administration) 	by Paul M. 	Starkey, 	Labor Relations
Counsel, 	for State of California 	(Water Resources 	Control
Board).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on a motion 	for reconsideration
filed by 	the 	State 	of 	California 	(Water Resources 	Control 	Board)
(WRCB) 	of 	the Board's decision in State of California 	(Water
Resources Control Board) 	(1999) 	PERB Decision No. 	1337-S 	(Water
Resources 	Control 	Board). 	In that decision the Board found that
the WRCB violated section 3519(b) 	and 	(c) 	of the Ralph C. 	Dills
Act 	(Dills Act)1 when it unilaterally implemented a new
1The Dills Act 	is 	codified at Government 	Code 	section 3512
et seq. 	Section 3519 provides, 	in relevant part:
It 	shall be unlawful 	for the 	state to do any
of 	the following:
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
)
)
)

internet/intranet 	usage 	policy without 	providing 	the 	Professional
Engineers 	in California Government 	(PECG) 	with notice 	or an
opportunity 	to bargain over 	that 	change.
(c) 	Refuse or fail 	to meet and confer in
good 	faith with a 	recognized employee
organization.
DISCUSSION
In Water Resources 	Control 	Board, 	the Board concluded that
the WRCB's 	internet/intranet 	usage 	policy 	constituted a
negotiable 	departure 	from 	its 	existing 	statement 	of 	incompatible
activities. 	In reaching this decision, 	the Board rejected, 	inter
alia, 	WRCB's 	claim that 	the 	charge had been untimely filed,
stating:
The 	earliest 	date 	on which 	the 	record
establishes 	that 	PECG had actually seen any
portion of 	the WRCB's 	internet 	policy 	is
August 	11, 	when PECG faxed a partial 	copy of
the policy 	to 	the WRCB and 	requested an
explanation. 	Based on the 	foregoing, 	we
conclude 	that 	PECG has 	filed 	its 	charge 	in a
timely manner.
PERB Regulation 32410(a)2 permits any party to a decision of
the Board itself, 	because of 	extraordinary circumstances, 	to
request 	the Board to reconsider that decision. 	It 	states, 	in
pertinent part:
The 	grounds 	for 	requesting 	reconsideration
are limited to claims 	that: 	(1) 	the decision
of 	the Board 	itself 	contains prejudicial
errors of 	fact, 	or 	(2) 	the party has newly
discovered evidence which was 	not 	previously
available 	and 	could not 	have 	been discovered
with the 	exercise 	of 	reasonable diligence.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
22

On August 	6, 	1999, 	WRCB filed the 	instant 	request 	seeking
reconsideration of 	the Board's 	decision in Water Resources
Control 	Board. 	WRCB asks 	that 	the Board revisit 	its 	ruling 	in
this matter 	for 	the 	exclusive purpose 	of 	determining whether 	the
Board, 	as a matter of law, 	has 	jurisdiction in this 	case. 	WRCB
maintains 	that 	the 	decision 	contains prejudicial 	errors 	of 	fact
and erroneous 	conclusions 	of 	law. 	The motion 	is 	specifically
limited 	to 	the Board's 	finding 	that 	the 	earliest 	date 	PECG had
actually seen any portion of WRCB's 	internet policy, 	as
established in the record, 	was August 11, 	1997. 	WRCB maintains
that, 	"The date 	that 	PECG 	'had actually seen any portion of 	the
WRCB's 	Internet policy' 	is 	irrelevant." 	It goes on to argue that
it 	is 	"irrefutable" 	that 	PECG had the 	requisite knowledge no
later than July 31, 	1997, 	when PECG made a written demand to WRCB
that 	it withdraw its 	intended 	internet policy, 	and that 	the
letter bearing 	this 	date 	shows 	the 	charge was untimely. 	WRCB
finally 	claims 	that 	by 	failing 	to 	find 	that 	this 	letter 	triggered
the statute of 	limitations, 	the Board has abandoned its 	own
precedent, 	and has 	impermissibly expanded 	its 	statutory
jurisdiction.
These 	are 	not 	appropriate 	grounds 	under which WRCB may
request 	reconsideration 	from the 	Board.
In reviewing 	requests 	for reconsideration, 	the Board has
strictly 	applied 	the 	limited grounds 	included 	in 	PERB 	Regulation
32410, 	supra. 	specifically to avoid the use of the
reconsideration process 	to 	reargue 	or 	relitigate 	issues 	which
33

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; Fall River
Joint Unified School District 	(1998) 	PERB Decision No. 	1259a.)
Similarly, 	reconsideration will 	not 	be granted based on a 	claim
of 	an alleged prejudicial 	error of 	law. 	(Jamestown Elementary
School District 	(1989) 	PERB Order 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.)3
The WRCB has 	raised the 	same argument, 	and has 	relied upon
the same facts, 	at every stage of these proceedings. 	The claim
was 	presented 	to 	the 	administrative 	law judge by WRCB at 	the
3The 	letter of July 31 	is noted in the decision. 	WRCB's
argument, 	which was based upon that 	letter, 	was 	rejected by our
finding 	that August 	11 was 	the 	triggering date 	of 	the 	limitations
period. 	Notice 	of 	a proposed change must be given to an official
of 	an employee 	organization who has 	the 	authority 	to act 	on
behalf 	of 	the 	organization, 	and that 	"notice must be 	communicated
in a manner which 	clearly 	informs 	the 	recipient 	of 	the proposed
change." 	(Emphasis 	added.) 	(Victor Valley Union High School
District 	(1986) 	PERB Decision No. 	565.) 	The Board's review of
the entire 	record in this 	case discloses 	that, 	although PECG was
aware 	that 	something was 	stirring on or about July 31, 	the exact
nature of 	the 	impending 	change by WRCB was unknown. 	The 	letter
of July 31 does not dispel 	this 	conclusion.
•
44

hearing of July 27, 	1998, 	in WRCB's post-hearing brief, 	and in
its 	statement 	of 	exceptions 	to the proposed decision. 	It has now
been 	repetitiously 	renewed 	in 	the motion 	for 	reconsideration.4
WRCB's 	request 	for 	reconsideration 	fails 	to demonstrate
grounds 	sufficient 	to 	comply with PERB Regulation 32410.5
ORDER
The 	request 	for 	reconsideration 	in State 	of 	California
(Water Resources Control Board) 	(1999) 	PERB Decision
No. 	1337-S 	is hereby DENIED.
Member Amador 	joined 	in 	this Decision.
Chairman Caffrey's 	concurrence begins 	on page 	6.
4WRCB has 	also argued during 	the 	course 	of 	these proceedings
that 	PECG was 	notified of 	the 	intended 	change 	on or about
April 	4, 	1997, 	when Dennis Alexander received a letter setting
forth 	the new 	internet policies 	at 	State 	of 	California
(Department of Transportation) 	(Caltrans). 	This argument 	is no
more persuasive, 	regarding actual 	knowledge of 	the pending
changes 	in WRCB policy, 	than is 	the 	claim arising 	from the July
31 	letter. 	The 	information in the April 	4 	correspondence
addressed policies 	which had been adopted by Caltrans. 	It 	was
irrelevant 	to 	changes 	being 	contemplated by WRCB.
5In 	confirming 	our 	finding 	that 	PECG did not 	have 	notice 	of
the proposed changes until August 	11, 	and not on
July 31, 	the Board also rejects WRCB's 	claim that 	PERB has
impermissibly 	expanded 	its 	statutory jurisdiction. 	The Board
denies WRCB's 	request 	for oral 	argument. 	PECG's 	request 	for
costs 	is also denied.
55

CAFFREY, 	Chairman, 	concurring: 	I concur in the majority's
denial 	of 	the 	request by 	the 	State 	of 	California 	(Water Resources
Control Board) 	(State) 	that the Public Employment Relations Board
(Board) 	reconsider its decision in State of California 	(Water
Resources Control Board) 	(1999) 	PERB Decision No. 	1337-S. 	In
numerous 	cases 	cited by the majority, 	the Board has 	explained
that 	reconsideration 	is 	not 	available 	to parties merely seeking
to 	relitigate 	issues 	already decided 	in 	the underlying decision.
In its 	request 	for reconsideration, 	the State 	simply reargues 	the
issue 	of 	the 	timeliness 	of 	the unfair practice 	charge 	filed by
the 	Professional 	Engineers 	in California Government, 	an issue
decided by 	the 	Board 	in 	the underlying decision. 	Consequently,
the 	State has 	failed to demonstrate appropriate grounds 	for
reconsideration and 	its 	request must 	be 	denied.
66