United Faculty Association of North Orange County (Kiszely) (PERB 1343EA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELIZABETH 	KISZELY,
Charging Party,
v.
UNITED 	FACULTY ASSOCIATION OF
NORTH ORANGE 	COUNTY,
Respondent.
)
)
) 	Case No. 	LA-CO-773
Request 	for 	Reconsideration
PERB Decision No. 	1343
PERB Decision No. 	1343a
December 	2, 	1999
)
)
)
)
)
)
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Appearance; 	Elizabeth Kiszely, 	on her own behalf.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case 	comes before the Public
Employment Relations 	Board 	(PERB or Board) 	on a request by
Elizabeth 	Kiszely 	(Kiszely) 	that 	the 	Board grant 	reconsideration
of 	United 	Faculty Association 	of 	North Orange 	County 	(Kiszely)
(1999) 	PERB Decision No. 	1343 	(UFA). 	In UFA, 	the Board dismissed
the unfair practice 	charge, 	in which Kiszely made 	a 	request 	for
repugnancy review of 	an arbitration award, 	and also alleged 	that
the United 	Faculty Association 	of 	North Orange 	County
(Association) 	denied her the 	right 	to 	fair and 	impartial
representation 	guaranteed by 	section 	3544.9 	of 	the 	Educational
Employment Relations Act 	(EERA), 	in violation of section
3543.6(b).1
JEERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3544.9 	states:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
________________ )

the purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
Section 3543.6 states, 	in 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.
After 	reviewing the 	entire 	record, 	the Board hereby denies
the 	request 	for 	reconsideration.
DISCUSSION
In UFA, 	the Board concluded that 	Kiszely's 	charge was
untimely because 	she 	had waited over a year after 	learning of 	the
arbitrator's 	opinion before 	filing her charge. 	The 	statute 	of
limitations 	is six months. 	(EERA sec. 	3541.5 (a) (1).)2 The Board
also concluded that, 	even if 	the charge were timely, 	Kiszely had
failed 	to produce 	facts 	which 	demonstrated 	that 	the Association's
handling 	of 	her grievance was 	arbitrary, 	discriminatory or 	in bad
faith, 	as 	required. 	(American Federation of State, 	County and
Municipal Employees, 	Council 	10 	(Olson) 	(1988) 	PERB Decision No.
682-H.)
2EERA section 3541.5(a)(1) 	provides 	that 	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.
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Reconsideration 	requests 	are 	governed by 	PERB 	Regulation
32410(a),3 which states:
(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. 	. 	. 	. 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 	or 	law which was 	not
previously available 	and 	could not 	have 	been
discovered with 	the 	exercise 	of 	reasonable
diligence. 	A request 	for 	reconsideration
based upon 	the 	discovery of 	new evidence must
be 	supported by a 	declaration under 	the
penalty of 	perjury which establishes 	that 	the
evidence: 	(1) 	was not previously available;
(2) 	could not have been discovered prior to
the hearing with 	the 	exercise 	of 	reasonable
diligence; 	(3) 	was submitted within a
reasonable time of its discovery; 	(4) 	is
relevant 	to 	the 	issues 	sought 	to be
reconsidered; 	and 	(5) 	impacts or alters the
decision of 	the previously decided 	case.
On September 13, 	1999, 	Kiszely filed the 	instant request
seeking 	reconsideration of 	the Board's 	decision 	in UFA. 	The
request 	consists 	of 	a 	lengthy document which 	contains 	references
to matters 	outside 	the Board's 	jurisdiction as well 	as matters
outside 	the 	scope of 	this unfair practice 	charge. 	In the
portions 	of 	the 	request which pertain to 	the 	instant 	charge,
Kiszely asks 	that 	the 	Board grant 	reconsideration because 	her
charge 	is 	timely, 	based on the 	same arguments 	she 	raised earlier.
The 	grounds 	offered by Kiszely do not 	constitute 	grounds 	for
reconsideration pursuant 	to 	PERB Regulation 32410. 	In reviewing
3PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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requests 	for reconsideration, 	the Board has 	strictly applied the
limited grounds 	included 	in that 	regulation, 	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. 	ll00Oa-S; 	Fall River Joint Unified School District 	(1998) 	PERB
Decision No. 	1259a.) 	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.)
Based on this precedent, 	the Board concludes 	that 	Kiszely's
request 	fails 	to 	comply with PERB Regulation 32410.
ORDER
Elizabeth Kiszely's 	request 	for 	reconsideration 	of 	the
Board's 	decision 	in United 	Faculty Association 	of 	North Orange
County 	(Kiszely) 	(1999) 	PERB Decision No. 	1343 	is hereby DENIED.
Chairman Caffrey and Member Dyer 	joined 	in 	this 	Decision.
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