State of California (State Personnel Board) (PERB 1491SA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS,
Charging Party,
V.
ST ATE OF CALIFORNIA (STATE PERSONNEL
BOARD),
Respondent.
Case No. SA-CE-1295-S
Request for Reconsideration
PERB Decision No. 1491-S
PERB Decision No. 1491a-S
November
	12,
	2002
Appearances: Van Bourg, Weinberg, Roger & Rosenfeld by Matthew J. Gauger, Attorney, for
International Union
of
Operating Engineers; Kronick, Moskovitz, Tiedemann & Girard
by
Eiise Rose, Dorothy Bacskai Egel and Susan R. Denious, Attorneys, and State
of
California
(Department
of
Personnel Administration) by Linda Diane Buzzini, Labor Relations Counsel,
for State
of
California (State Personnel Board).
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request by the State
of
California (State Personnel Board) (SPB) that the
Board grant a stay
of
proceedings and/or reconsideration
of
State
of
California (State Personnel
Board) (2002) PERB Decision No. 1491-S (SPB). In SPB, the Board remanded the unfair
practice charge to the administrative law judge (ALJ) for a hearing on the merits
of
SPB
's
motion to dismiss and ordered joinder
of
the State
of
California (Department
of
Personnel
Administration) (DPA) as a separate party to this action.
After reviewing the entire record in this matter, including SPB 's request for stay
of
proceedings and/or reconsideration, DP A's response and the International Union of Operating

Engineers' (IUOE) responses to the requests, the Board denies SPB's request for stay
of
proceedings and/or reconsideration.
DISCUSSION
Request for Stay
PERB Regulation 323701 provides:
An appeal will not automatically prevent the Board from
proceeding in a case. Parties seeking a stay
of
any activity may
file a request for a stay with the administrative appeal which shall
include all pertinent facts and justification for the request. The
Board may stay the matter, except as is otherwise provided in
these regulations.
In addition, PERB Regulation 32410(c) provides:
( c) Unless otherwise ordered by the Board, the filing
of
a
Request for Reconsideration shali not stay the effectiveness
of
a
decision
of
the Board itself except that the Board's order in an
unfair practice case shall automatically be stayed upon filing
of
a
Request for Reconsideration.
SPB seeks a stay beyond the automatic stay provided by PERB Regulation section 32410(c ),
stating that such stay falls within the Board's general authority under Section 32320.2
We agree with DPA and IUOE that the issues before the appellate court differ from
those before the Board. Although it may ultimately be necessary to decide whether the
applicable Ralph C. Dills Act (Dills Act)3 provisions can be harmonized with the California
Constitution, Article VII, such a determination may not be dispositive in determining whether
1PERB's Regulations are codified at California Code
of
Regulations, title 8, section
31001 et seq.
2Under PERB Regulation 32320(a)(2), the Board may "take such other action as it
considers proper."
3The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2

SPB's
conduct in this matter violated the Dills Act. In other words, the appellate
court's
ruling
in the htigation involving these parties over the Board
of
Adjustment (BOA) procedures
may
not resolve the Dills Act questions. Furthermore, there is nothing in the injunctive
relief
ordered in State Personnel Board v. Department
of
Personnel Administration, et al.,
Sacramento Superior Court Case No. 01CS00109 that prohibits IUOE and
DPA
from
continuing to pursue this unfair practice charge before the Board. Therefore, we deny
SPB'
s
request for stay beyond that automatically provided under PERB Regulation 32410(c).
Request for Reconsideration
PERB Regulation 32410( a) allows any party to a decision
of
the Board itself, because
of
extraordinary circumstances, to request the Board to reconsider the decision. 	Section
32410(a) 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. 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 ofreasonable 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.
We first reject SPB's contention that the Board's decision in SPB contained prejudicial
errors
of
law and fact in failing to address the Superior Court decision and the effect
of
the
ruling on PERB' s jurisdiction over this matter. Purported errors
of
law are not grounds for
reconsideration. (Apple Valley Unified School District (1990) PERB Order No. Ad-209a
3

(Apple Valley), citing South Bay Union School District (1990) PERB Decision No. 791a, p.
7;
and State
of
California (California Department
of
Forestry and Fire Protection) (1989) PERB
Decision No. 734a-S, pp. 2-3 (California Department
of
Forestry and Fire Protection).) It is
unclear what error
of
fact the SPB is alleging. The Board, in SPB, clearly acknowledged the
litigation among the parties to this charge involving the constitutionality
of
the BOA
provisions. However, as stated above, that may or may not affect the resolution
of
the Dills
Act issues in this matter. It is well established that the Board has initial exclusive jurisdiction
over unfair practice charges involving the Dills Act. (Dills Act section 3514.5.4) 	Without a
hearing on the merits
of
SPB
's
motion to dismiss after which an ALJ would evaluate the legal
and factual arguments
of
all the parties, it is impossible for the Board to evaluate whether SPB
violated the Dills Act or whether its constitutional role might preclude a Dills Act challenge to
SPB's conduct. In other words, the trial court's refusal to stay its proceedings, the pending
status before the Third District Court
of
Appeal
of
the parties' dispute over the BOA
provisions' constitutionality, or the trial court's injunction
of
the parties' implementation
of
the
BOA provisions in the memorandum
of
understanding does not in any way impact or alter the
Board's decision to remand the case for a full hearing on the merits
of
SPB 's motion to
dismiss.
Second, we reject SPB's contention that a finding that SPB is not an "employer" under
the Dills Act would allow SPB to discriminate against employees for protected activities
without consequence is a prejudicial error oflaw. Again, Apple Valley and California
Department of Forestry and Fire Protection preclude reconsideration for an error oflaw. In
4See also, Barstow Unified School District (1997) PERB Decision No. 1138b in which
the Board confirmed its exclusive jurisdiction based on the identical language in the
Educational Employment Relations Act, section 3541.5.
4

addition, SPB mischaracterizes this portion
of
the Board's decision. What the Board stated is
that without a compiete record, it is impossibie to determine whether SPB is an "employer"
under the Dills Act for purposes
of
this case. SPB's contention that it is not subject to the Dills
Act because it does not employ the Unit 12 and
13
employees is not dispositive
of
the matter.
Section 3 519 indeed makes it illegal for the "state," not the "employer," to violate the
protected rights
of
state employees and their exclusive representatives. 5 As DP A noted, the
correct inquiry may be to determine whether, as the "state," SPB's conduct violated the Dills
Act.
Third, we reject SPB's claim that the Board erroneously found disputed issues
of
fact
necessary to evaluate SPB's status as an "employer" under the Dills Act, to be a prejudicial
error
of
fact. 	Again, SPB mischaracterizes the Board's finding. Rather, the Board stated that
there appeared to be disputed issues
of
fact asserted by the parties and that such issues can only
be determined with an adequate record based upon full participation by all the parties. 	The
Board also rejects SPB's contention that the appropriate remedy for aggrieved employees,
should the Board find SPB in violation
of
the Dills Act, is through writ
of
mandate via Code
of
Civil Procedure sections 1084 and 1085. The Board would be relinquishing its statutory
responsibilities under the Dills Act to allow such a result. We agree with DP A and IUOE that
such a result would conflict with legal principles requiring exhaustion
of
administrative
remedies and PERB 's preemptive jurisdiction. It is further important to note that no provision
of the Dills Act has automatically exempted the SPB from the Board's jurisdiction. The Dills
Act further makes no distinction between state agencies, in general, and quasi-adjudicatory or
5Note that in Section 3513(j), the Dills Act defines "state employer" or "employer" as
"the Governor or his or her designated representatives" only "for the purposes of bargaining or
meeting or conferring in good faith." (Emphasis added.)
5

quasi-legislative state agencies. In addition, the Board's desire to obtain a full record that
incorporates the legal and factual perspectives
of
all parties contradicts SPB's claim that not
directly granting DP
A's
petition to file an information brief was prejudicial error. 	(Apple
Valley.) SPB will have sufficient opportunity to respond to the other parties' arguments during
a hearing on the merits
of
its motion.
We therefore conclude that SPB has not provided adequate grounds for the Board to
stay the proceedings in this matter nor has it shown the existence
of
extraordinary
circumstances under PERB Regulation 32410(c) by proving that the Board's decision in SPB
contained prejudicial errors
of
fact or through introduction
of
newly discovered evidence. 	As a
result, the Board denies SPB's request for stay
of
proceedings and/or reconsideration.
ORDER
The State
of
Personnel Board's request for stay
of
proceedings and/or reconsideration
of
the Board's decision in State
of
California (State Personnel Board) (2002) PERB Decision
No. 1491-S is hereby DENIED.
Members Baker and Neima joined in this Decision.
6