Regents of the University of California (Berkeley) (PERB 0534HA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION, 	CHAPTER 	41, 	AND
MICHAEL 	BOGAN,
Charging 	Parties,
v.
REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA 	(BERKELEY),
Respondent.
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case 	NO. 	SF-CE-46-H
Request 	for 	Reconsideration
PERB 	Decision 	No. 	534-H
PERB 	Decision 	No. 	534a-H
March 	12, 	1986
Appearances: 	Michael 	Bogan, 	on 	his 	own 	behalf; 	Claudia 	Cate,
Attorney 	for 	the 	Regents 	of 	the ~niversity 	of 	California
(Berkeley).
Before 	Hesse, 	Chairperson; 	Morgenstern, 	Burt, 	Porter 	and 	Craib,
Members.
DECISION
The 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board),
having 	duly 	considered 	the 	requests 	for 	reconsideration 	of 	PERB
Decision 	No. 	534-H 	filed 	by 	both 	Michael 	Bogan 1 and 	the
Regents 	of 	the 	University 	of 	California 	at 	Berkeley
(University), 	hereby 	denies 	those 	requests.
DISCUSSION
In 	the 	underlying 	Decision, 	PERB 	dismissed 	charges 	brought
by 	Bogan 	and 	the 	California 	State 	Employees' 	Association,
lThe 	California 	State 	Employees 	Association, 	Chapter 	41
is 	not 	a 	party 	to 	this 	request 	for 	reconsideration.

chapter 	41 	alleging 	that 	the 	university 	had 	discharged 	and 	then
banned 	Bogan 	from 	certain 	library 	premises 	in 	retaliation 	for
engaging 	in 	protected 	activities. 	The 	Board 	found 	the
administrative 	law 	judge's 	findings 	of 	facts 	and 	conclusions 	of
law 	to 	be 	free 	from 	prejudicial 	error 	and 	adopted 	his 	proposed
decision 	as 	that 	of 	the 	Board 	itself. 	Thus, 	the 	Board 	agreed
that 	Bogan 	had 	failed 	to 	prove 	a 	prirna 	facie 	case 	of
retaliatory 	treatment 	by 	a 	preponderance 	of 	the 	evidence. 	we
also 	agreed 	that, 	even 	if 	Bogan 	had 	established 	a 	prima 	facie
case, 	the 	University 	had 	successfully 	rebutted 	it 	by 	showing 	it
would 	have 	discharged 	and 	banned 	him 	regardless 	of 	any
protected 	activities. 	The 	Board 	rejected 	the 	university's
request 	to 	give 	collateral 	estoppel 	effect 	to 	findings 	of 	the
arbitrator.
2PERB 	Regulation 	32410(a) 	provides, 	in 	pertinent 	part:
Any 	party 	to 	a 	decision 	of 	the 	Board 	itself
may, 	because 	of 	extraordinary 	circumstances,
file 	a 	request 	to 	reconsider 	the 	decision
.•.. 	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.
Bogan 	gives 	the 	following 	grounds 	for 	his 	motion 	for
reconsideration: 	the 	Board 	did 	not 	resolve 	the 	question 	of 	the
2PERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001 	et 	seq.
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use 	of 	solicited 	complaints 	held 	in 	secret 	files; 	it 	illogically
based 	its 	decision 	on 	credibility 	determinations 	while 	denying
the 	need 	for 	such 	determinations; 	it 	failed 	to 	consider 	the 	bad
precedential 	effect 	of 	allowing 	an 	employer 	to 	maintain 	and 	use
secret 	files 	to 	discharge 	a 	union 	activist; 	it 	failed 	to 	correct
factual 	errors 	and 	omissions 	contained 	in 	the 	adopted 	proposed
decision, 	and 	it 	failed 	to 	discuss 	the 	restated 	prirna 	facie 	case
and 	evidence 	of 	reprisal 	contained 	in 	charging 	parties' 	briefs
and 	exceptions 	to 	the 	proposed 	decision.
The 	Board 	has 	previously 	held 	that 	the 	mere 	reassertion 	of
arguments 	considered 	and 	rejected 	by 	the 	Board 	in 	an 	underlying
decision 	do 	not 	constitute 	the 	kind 	of 	"extraordinary
circumstances" 	that 	justify 	granting 	reconsideration. 	See 	state
of 	California 	(Dept. 	of 	Developmental 	services, 	Napa 	state
Hospital) 	(Matta) 	(1984) 	PERE 	Decision 	No. 	378a-S; 	Pittsburg
unified 	school 	District 	(1984) 	PERB 	Decision 	No. 	318a; 	Rio
Hondo 	Community 	College 	District 	(1983) 	PERB 	Decision 	No. 	279a.
Inasmuch 	as 	Bogan's 	motion 	is 	based 	on 	arguments 	and
evidence 	previously 	presented 	and 	considered 	by 	the 	Board 	when
it 	made 	its 	determination 	in 	the 	underlying 	Decision, 	no
extraordinary 	circumstances 	are 	shown 	which 	justify
reconsideration 	of 	that 	decision.
The 	University 	requests 	the 	Board 	to 	reconsider 	and 	delete
dicta 	indicating 	PERB's 	unwillingness 	to 	give 	collateral
estoppel 	effect 	to 	findings 	of 	an 	arbitrator. 	Its 	request 	is
apparently 	grounded 	in 	its 	concern 	that, 	although 	the 	Board's
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statement 	is 	dicta, 	someone 	may 	attempt 	to 	utilize 	it 	as
authority 	for 	not 	granting 	collateral 	estoppel 	in 	a 	future
case. 	We 	note, 	however, 	that 	no 	prejudice 	to 	the 	University 	is
shown. 	The 	Decision 	did 	not 	turn 	on 	that 	language 	and, 	were 	it
deleted, 	the 	result 	would 	still 	be 	the 	same 	- 	in 	the
university's 	favor. 	Thus, 	the 	university 	has 	not 	shown 	proper
grounds 	for 	reconsideration.
ORDER
The 	requests 	for 	reconsideration 	made 	by 	Michael 	Bogan 	and
the 	Regents 	of 	the 	university 	of 	California 	at 	Berkeley 	in 	case
No. 	SF-CE-46-H 	are 	hereby 	DENIED.
By 	the 	BOARD
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