State of California (Department of Industrial Relations) (PERB 1299SA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PROFESSIONAL 	ENGINEERS 	IN
CALIFORNIA GOVERNMENT,
Charging Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	INDUSTRIAL RELATIONS),
Respondent.
)
)
)
) 	Case No. 	LA-CE-398-S
Request 	for Reconsideration
PERB Decision No. 	1299-S
PERB Decision No. 	1299a-S
January 	14, 	1999
)
)
)
)
)
)
)
Appearance; 	Dennis F. 	Moss, 	Attorney, 	for Professional Engineers
in 	California Government.
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
Professional 	Engineers 	in California Government 	(PECG) 	that 	the
Board 	reconsider 	its 	decision 	in State 	of 	California 	(Department
of Industrial Relations) 	(1998) 	PERB Decision No. 	1299-S
(Industrial Relations). 	In Industrial Relations, 	the Board
dismissed 	the 	unfair practice 	charge 	and 	complaint 	alleging 	that
the 	State 	of 	California 	(Department 	of 	Industrial 	Relations)
(State) 	violated section 3519(a) 	and 	(b) 	of the Ralph C. 	Dills
Act 	(Dills Act)1 by retaliating against 	employee Michael
. .. .
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:

Chevalier 	(Chevalier) 	for his 	exercise 	of protected activity.
DISCUSSION
In Industrial Relations, 	the Board reversed, the decision of
an administrative 	law judge 	(ALJ) 	and dismissed the unfair
practice 	charge and complaint, 	stating:
Based on a 	review of 	the 	record as a whole,
the 	Board 	concludes 	that 	the 	State's 	actions
in 	sending 	Chevalier a performance
deficiencies memorandum, 	rating him
unacceptable 	on his 	second probationary
report, 	and rejecting him on probation were
not 	motivated by 	Chevalier's 	protected
activity, 	and would have 	occurred
irrespective of 	it.
PERB Regulation 32410(a)2 permits 	any party to a decision of
the Board itself, 	because of extraordinary circumstances, 	to
request 	reconsideration of 	the Board's 	decision. 	Regulation
32410(a) 	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.
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
22

On November 24, 	1998, 	PECG filed the 	instant 	request 	seeking
reconsideration of 	the Board's 	decision 	in 	Industrial 	Relations.
PECG asserts 	that 	the Board's 	conclusion that 	the actions 	taken
by 	the 	State 	against 	Chevalier were 	not 	motivated by his
protected activity 	is 	not 	supported by the 	record and, 	therefore,
constitutes 	prejudicial 	error of 	fact. 	PECG also argues 	that 	the
Board 	should have 	deferred 	to 	the 	judgment 	of 	the ALJ who,
according 	to 	PECG:
. 	. 	. 	was clearly in a much better position
to assess 	the motivation of 	the 	[State]
managers who testified, 	than this Board is,
given 	that 	the 	Board 	is 	dealing with no more
than 	transcripts 	and 	exhibits.
In 	considering 	requests 	for reconsideration, 	the Board has
strictly 	applied 	the 	limited grounds 	included 	in 	PERB
Regulation 32410 	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; 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 Decision 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; 	Californi---------a State Employees- 	-
33

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.)
PECG asserts 	that 	the 	record 	in 	Industrial 	Relations 	does
not 	support 	the 	Board's 	conclusion 	regarding 	the 	State's motive
in 	rejecting 	Chevalier on probation. 	While 	PECG obviously
disagrees with the Board's 	finding, 	its 	request 	for
reconsideration essentially seeks 	to 	relitigate 	the 	issue 	of 	the
State's motive. 	The 	Board 	fully 	considered 	the 	record 	in
Industrial 	Relations 	in reaching 	its 	finding on this 	issue.
PECG's 	disagreement 	does 	not 	demonstrate 	that 	the 	Board's
decision 	contains 	prejudicial 	error of 	fact 	as 	required by 	PERB
regulations.
PECG also asserts 	that 	the 	Board erred when 	it 	did not 	defer
to the ALJ's 	judgment 	in assessing the State's motivation. 	This
claim, 	which presumably could be made 	in all 	cases which require
the assessment 	of a party's motivation, 	reveals a
misunderstanding of 	the 	role 	of 	PERB. 	In considering unfair
practice 	charges 	or alleged violations 	of 	the Dills Act, 	the
Board has 	the broad authority 	to 	"take 	such action and make 	such
determinations 	in respect 	of 	these 	charges 	or alleged violations
as 	the board deems 	necessary to 	effectuate 	the policies" 	of 	the
Dills Act. 	(Gov. 	Code sec. 	3541.3(i).) 	Furthermore, 	in
considering 	exceptions 	to a proposed decision by an ALJ, 	the
44

Board may 	"affirm, 	modify or reverse the proposed decision 	. 	. 	.
or take 	such other action as 	it 	considers proper." 	(PERB
Reg. 	3232 0.) 	While 	the Board gives 	deference 	to an ALJ's 	factual
findings 	which 	incorporate 	determinations 	of witness 	credibility,
the Board reviews 	the 	record of 	the 	cases before 	it de novo, 	and
has 	the 	duty and 	responsibility 	to 	take 	the 	actions 	based on 	that
review which 	it 	deems 	appropriate 	to 	take. 	(Santa Clara Unified
School District 	(1979) 	PERB Decision No. 	104; 	Mt. 	Diablo Unified
School District 	(1984) 	PERB Decision No. 	373b; 	Lake Elsinore
School District 	(1987) 	PERB Decision No. 	646.)
PECG's 	request 	for 	reconsideration 	fails 	to demonstrate
grounds 	sufficient 	to 	comply with 	PERB 	Regulation 	32410.
ORDER
The 	request 	for 	reconsideration 	in State 	of 	California
(Department of 	Industrial Relations) 	(1998) 	PERB Decision
No. 	1299-S is hereby DENIED.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
5