American Federation of State, County and Municipal Employees (Shek) (PERB 1173HA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN SHEK,
Charging 	Party,
v.
AMERICAN 	FEDERATION OF 	STATE,
COUNTY & MUNICIPAL EMPLOYEES,
COUNCIL 57,
Respondent.
) 	Case No. 	SF-CO-46-H
Request 	for Reconsideration
PERB Decision No. 	1173-H
PERB Decision No. 	1173a-H
February 5, 	1997
)
)
)
)
)
)
Appearance: 	John Shek, 	on his own behalf.
Before Garcia, 	Johnson, 	and Dyer, Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations Board 	(PERB or Board) 	on John Shek's 	(Shek) 	request
that 	the 	Board 	reconsider 	its 	decision 	in American 	Federation 	of
State. 	County & Municipal Employees. 	Council 57 	(Shek) 	(1996)
PERB Decision No. 	1173-H 	(AFSCME, 	Council 	57).1 In that 	case,
1Shek makes 	his 	request pursuant 	to 	PERB Regulation 32410.
PERB 	regulations 	are 	codified at 	California Code 	of 	Regulations,
title 	8, 	section 31001 et 	seq. 	PERB Regulation section 32410
provides, 	in relevant part:
(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 	five 	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

the Board 	found 	that 	the American Federation of 	State, 	County &
Municipal 	Employees, 	Council 	57 	(AFSCME) 	did not violate section
3571.1(b) 	of 	the Higher Education Employer-Employee Relations Act
(HEERA2 when 	it 	represented Shek 	in a 	series 	of 	grievances
against his 	employer, 	the University of 	California at 	San
Francisco.
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.
BACKGROUND
In AFSCME. 	Council 	57. 	Shek contended that AFSCME breached
its 	duty 	of 	fair 	representation by 	inadequately 	representing 	him
in a number of 	grievances dating back to 	1993. 	(See HEERA
section 3578.)3 The Board dismissed the bulk of 	Shek's
2HEERA is 	codified at Government 	Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3571.1 states, 	in relevant part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	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.
3Section 3578 	states:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative
shall 	represent 	all 	employees 	in the unit,
fairly and 	impartially. 	A breach of 	this
N	2

allegations 	as 	untimely because 	they occurred beyond HEERA's 	six-
month limitations period. 	(HEERA section 3563.2(a).)4 The
remaining allegations 	concerned 	the 	grievance AFSCME 	filed 	to
challenge 	Shek's 	termination.
duty shall 	be 	deemed to have 	occurred 	if 	the
employee 	organization's 	conduct 	in
representation is arbitrary, 	discriminatory,
or 	in bad 	faith.
Shek 	contended 	that 	AFSCME 	had 	failed 	to 	supply him with
documents 	necessary 	to 	challenge his 	termination and had 	failed
to adequately pursue 	the 	grievance. 	The Board held that AFSCME
had no duty to provide 	information to Shek. 	(See Oxnard School
District 	(1988) 	PERB Decision No. 	667 at p. 	9.) 	The Board also
held 	that 	Shek had 	failed 	to allege 	facts 	sufficient 	to 	support 	a
finding that AFSCME's 	conduct had been arbitrary, 	discriminatory,
or 	in bad 	faith. 	(See United Teachers 	of 	Los Angeles 	(Collins)
(1982) 	PERB Decision No. 	258 at p. 	5.)
SHEK'S 	REQUEST 	FOR 	RECONSIDERATION
In his 	request 	for reconsideration, 	Shek contends 	that 	the
Board abused 	its 	discretion by 	failing 	to 	follow its 	"Governing
Statute" 	(apparently HEERA) 	and by 	"Converting 	'Substantial
evidence'." 	Specifically, 	Shek claims: 	(1) 	that 	the Board based
its dismissal 	only on information submitted by AFSCME; 	(2) 	that
the 	Board 	ignored 	the undisputed 	fact 	that AFSCME 	refused 	to
4HEERA section 3563.2(a) 	states, 	in relevant part:
. 	. 	. 	the board shall not issue a complaint
in 	respect 	of 	any 	charge based upon an
alleged unfair practice 	occurring more 	than
six months prior to the 	filing of 	the 	charge.
33

provide 	Shek with documents 	necessary 	to 	challenge 	his 	dismissal;
and 	(3) 	that 	the Board's October 31, 	1996 dismissal 	incorrectly
states 	that 	Shek attended a hearing.
DISCUSSION
PERB Regulation 32410 	provides 	that 	a party to a Board
decision may 	request 	reconsideration on 	the 	grounds 	that 	the
decision contains prejudicial 	errors 	of 	fact, 	or newly discovered
evidence 	or law. 	The Board will 	not 	grant 	a request 	for
reconsideration where 	the 	party making 	the 	request 	has 	failed 	to
establish any ground set 	forth in PERB Regulation 32410. 	(See,
e.g., 	California State Employees Association. 	Local 	1000
(Janowicz) 	(1994) 	PERB Decision No. 	1043a-S at pp. 	2-3.)
Further, 	reconsideration 	is 	not 	appropriate where a party merely
restates 	arguments 	considered and 	rejected by 	the 	Board 	in 	its
underlying decision. 	(Id.; 	Regents 	of 	the University of
California 	(1990) 	PERB Decision No. 	829a-H at pp. 	2-3.)
As noted above, 	Shek raises 	three arguments 	in his 	request
for reconsideration. 	We will 	address 	these 	serially.
Without 	any 	citation 	to 	the 	record or 	to 	any 	specific
portion of 	the Board's decision, 	Shek challenges all 	of 	the
Board's 	factual 	findings. 	Shek contends 	that 	the Board based 	its
findings 	solely 	on 	information 	submitted by AFSCME. 	A review of
the record, 	however, 	indicates that 	the Board's 	factual 	findings
stem from Shek's 	unfair practice 	charge 	and 	the 	exhibits 	attached
thereto. 	(See Regents of 	the University of 	California 	(1996)
PERB Decision No. 	1157-H at pp. 	3-4.) 	Shek's blanket 	challenge
4

to 	the Board's 	factual 	findings 	has 	no basis 	in 	fact 	and does 	not
comply with PERB Regulation 32410. 	Accordingly, 	Shek's 	first
challenge 	is 	insufficient 	to 	support 	a 	request 	for
reconsideration.
Shek next 	argues 	that 	the 	Board 	ignored his 	claim that
AFSCME denied his 	requests 	for information. 	As noted above, 	the
Board agent 	specifically addressed 	this 	claim on page 	3 	of 	the
dismissal 	letter. 	Because 	Shek's 	second argument 	has 	no basis 	in
fact 	and does not 	comply with PERB Regulation 32410, 	it 	is also
insufficient 	to 	support 	a 	request 	for 	reconsideration.
Shek's 	final 	contention is 	somewhat 	of a mystery. 	Shek
appears 	to believe 	that 	the Board held a hearing before 	it 	issued
PERB Decision No. 	1173-H.5 Shek apparently contends 	that 	he was
prejudiced because he was not present 	at 	the Board's 	hearing.
Since 	the Board rendered 	its 	decision without a hearing, 	Shek's
final 	assertion 	is 	also 	insufficient 	to 	support 	a 	reconsideration
request.
ORDER
The 	request 	for reconsideration in Case No. 	SF-CO-46-H is
hereby DENIED.
Members 	Garcia and Johnson 	joined 	in 	this 	Decision.
5Shek's 	misapprehension may 	stem from the 	fact 	that 	his 	name
is 	listed in the decision's 	"Appearances" 	section. 	This 	section
identifies 	those 	individuals 	who 	filed written pleadings 	with 	the
Board 	itself.
55