California State University, Fresno (PERB 0845HA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATEWIDE 	UNIVERSITY 	POLICE
ASSOCIATION 	and 	GILBERT A.
WASHINGTON, JR.,
Charging Parties,
V.
CALIFORNIA 	STATE 	UNIVERSITY,
FRESNO,
Respondent.
Case No. 	S-CE-35-H
Request 	for 	Reconsideration
PERB Decision No. 	845-H
PERB Decision No. 	845a-H
February 13, 	1991
Appearances: 	Mastagni, 	Holstedt & Chiurazzi by Mark R. 	Kruger,
Attorney, 	for 	Statewide 	University 	Police Association and 	Gilbert
A. 	Washington, 	Jr.; 	William B. 	Haughton, Attorney, 	for California
State University, 	Fresno.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on a request 	for
reconsideration 	filed by 	the 	California 	State 	University, 	Fresno
(CSU) 	of PERB Decision No. 	845-H, 	which issued on October 4,
1990. 	Having duly considered the 	request 	for reconsideration,
the 	Board denies 	the 	request 	for the 	reasons 	that 	follow.
In PERB Decision No. 	845-H, 	the Board 	found that CSU
violated 	section 3571(a) 	and 	(b) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA or Act)1 when it
1 HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are to the
Government Code. 	Section 3571 provides, 	in pertinent part:
It 	shall 	be unlawful 	for 	the 	higher 	education
employer to do 	any of 	the 	following:
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unlawfully discriminated against Gilbert A. 	Washington, 	Jr.
(Washington) 	because of his 	exercise of protected activity.
Specifically, 	the 	Board 	found 	that 	CSU 	rejected Washington 	from
probation 	in retaliation 	for his 	having 	testified 	at 	a 	PERB
formal hearing 	involving a 	fellow campus police officer, 	John
Moseley.
(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.
This 	section was 	subsequently amended, 	effective January 	1, 	1990
This 	change has 	no 	impact on the disposition of 	this 	case.
DISCUSSION
PERB Regulation 32410(a) 	provides, 	in relevant 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 reconsid-
eration 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.
In 	its 	request 	for reconsideration, 	CSU asserts 	that 	the
Board's 	decision contains 	four prejudicial 	errors 	of 	fact.
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Specifically, 	CSU excepts 	to the Board's 	findings 	regarding:
(1) 	the 	loud confrontation with Sergeant Maria Silva 	(Silva);
(2) 	the disruption of the Bush 	security briefing;
(3) 	Washington's derogatory reference to Silva; 	and
(4) 	Washington's past employment history.
In regard to 	the 	loud 	confrontation with Silva, 	CSU 	argues
the 	Board's 	statement that 	"there 	is 	no 	reference 	in either the
informal 	evaluation or memo 	to Washington's 	alleged 	loud
confrontation" 	constitutes a prejudicial 	error of 	fact. 	However,
CSU admits 	there 	is 	no 	reference 	in Washington's 	informal
evaluation to 	any 	loud 	confrontation. 	There 	is 	also 	no mention
in the memo of a 	"confrontation." 	However, 	the June 	7, 	1988
memo, 	prepared by 	Silva pursuant to 	Lieutenant 	Steven King's
(King) 	instructions, 	does mention Washington's 	conduct during the
March 	23, 	1988 	informal 	evaluation meeting.2 The memo describes
Washington's 	reaction to 	the 	discussion regarding his 	informal
evaluation. 	The memo simply states 	"he was upset, 	loud, 	and
22The 	Board 	notes 	the 	factual 	summary 	erroneously 	states 	the
memo 	did 	not 	mention Washington's 	conduct 	during the 	informal
evaluation meeting. 	However, 	in its discussion, 	the Board
accurately 	states 	there 	is 	no 	reference 	in the memo 	to
Washington's 	loud confrontation. 	Additionally, 	Silva testified
the 	confrontation occurred on April 	9, 	1988 	during an 	informal
evaluation discussion. 	Accordingly, 	the Board's 	reference 	to the
March 23, 	1988 	informal evaluation meeting is 	incorrect. 	The
Board also 	stated 	Sergeant James 	Myers 	(Myers) 	and 	Investigator
Michael 	O'Reilly 	(O'Reilly) 	testified 	they heard Washington
shouting 	at 	Silva. 	The 	Board notes 	this 	fact was 	elicited during
Silva's 	and Myers' 	testimony. 	O'Reilly did not testify regarding
this 	fact. 	As 	these errors 	are not prejudicial 	to our decision,
these 	errors 	do 	not 	constitute 	grounds 	for reconsideration.
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pouted."3 The 	Board's 	conclusion that 	the memo does 	not 	refer to
a 	"loud 	confrontation" 	is 	supportable. 	The 	fact that Washington
may 	have 	been 	loud 	and upset 	does 	not 	necessarily 	compel 	a
conclusion that 	there was 	a 	"loud 	confrontation." 	The 	fact 	that
Silva, 	when reporting about the meeting, 	did not mention to 	King
that 	Washington had 	been 	threatening 	or 	verbally 	abusive 	towards
her 	further 	supports 	the Board's 	finding that 	there was 	no 	"loud
confrontation" 	that would 	justify Washington's 	rejection 	from
probation. 	Finally, 	CSU's 	argument that the Board's 	use of 	the
words 	"allegedly" 	and 	"alleged" 	"creates 	a prejudicial 	implied
finding 	that 	the 	loud confrontation may not have 	taken place" 	is
without merit.
With regard to 	the 	disruption of 	the 	Bush 	security briefing,
CSU 	simply disagrees 	with 	the 	Board's 	reading 	of 	the 	testimony.
CSU 	states, 	"any fair reading of 	the transcript requires 	a
resolution of 	the 	conflicting 	testimony 	against Washington."
This 	statement admits 	there 	is 	conflicting testimony. 	In
addition to 	the 	conflicting testimony, 	CSU admits 	the 	incident
3While CSU refers 	to an 	"Exhibit P" 	attached to the June 	7,
1988 memo, 	the record only consists of the June 	7, 	1988 memo.
Apparently, 	the attachments to the June 	7, 	1988 memo were not
part of 	the document entered 	into evidence. 	As 	"Exhibit P" 	is
not part of 	the record, 	CSU's 	argument regarding this 	attachment
is irrelevant.
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was 	not 	included 	in Washington's 	performance 	evaluation.4 As 	the
Board's 	resolution of the 	conflicting 	evidence does 	not
constitute a prejudicial 	error of 	fact, 	CSU's 	argument does 	not
constitute 	grounds 	for 	reconsideration.
CSU next 	argues 	that 	the 	administrative 	law 	judge's 	(ALJ)
conclusion, 	regarding Chief William Anderson's 	(Anderson) 	honest
belief 	that Washington made 	derogatory 	statements 	regarding
Silva, 	is 	entitled to deference by the Board. 	This 	argument 	is
without 	merit. 	The 	fact 	that 	the ALJ 	found Chief Anderson had an
honest belief 	that 	such 	statements were made 	is 	irrelevant 	to 	a
determination whether 	such 	statements were made by Washington.
Since 	the testimony was 	inconsistent, 	the ALJ 	never determined
whether the 	statements were actually made by Washington. 	As 	the
ALJ 	did not make a 	credibility determination, 	the 	Board was 	free
to make 	its 	own findings 	of 	fact and conclusions 	of 	law based on
the evidence.
Finally, 	CSU argues 	the 	Board 	should have 	relied upon
Washington's 	past 	employment 	history 	to 	find 	an 	operational
justification. 	As 	this 	argument does 	not 	constitute 	a
prejudicial 	error 	of 	fact 	or 	newly discovered 	evidence 	or 	law,
this 	argument does 	not constitute 	an appropriate basis 	for
granting CSU's 	request 	for 	reconsideration.
Although CSU 	asserts 	this 	incident was 	included 	in
Attachment I 	of the June 7, 	1988 memo, 	the attachments are not
part of 	the record. 	Also, 	the Board did not refer to this memo
in its decision. 	Rather, 	the Board 	stated this 	"incident was 	not
included 	in Washington's 	performance 	evaluations." 	CSU 	admits
this statement is correct. Thus, this argument is without merit.
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ORDER
There 	being no proper grounds 	for reconsideration 	stated,
the request 	for reconsideration of PERB Decision No. 	845-H 	is
hereby 	DENIED.
Members 	Shank and Camilli 	joined 	in this 	Decision.
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