California Faculty Association (Wang) (PERB 0692HA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DR. 	CHENG T. 	WANG,
Charging 	Party,
v.
CALIFORNIA FACULTY ASSOCIATION,
Respondent.
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) 	Case No. 	LA-CO-11-H
Request 	for 	Reconsideration
PERB 	Decision No. 	692-H
PERB Decision No. 	692a-H
December 	29, 	1988
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Appearances; 	Dr. 	Cheng T. 	Wang, 	on his own behalf.
Before Hesse, Chairperson; 	Porter, Craib, and Shank, Members.
DECISION
HESSE, 	Chairperson: 	Dr. 	Cheng T. 	Wang requests
reconsideration of Decision No. 	692-H, 	issued by the Public
Employment Relations Board 	(PERB or Board) 	on July 26, 	1988.
Having duly considered the 	request 	for reconsideration, 	the 	Board
itself 	hereby denies 	the 	request 	for 	the 	reasons 	that 	follow.
In Decision 	692-H, 	the 	Board affirmed the 	Board 	agent's
dismissal 	of 	charging party's 	unfair practice 	charge 	that 	the
respondent, 	California Faculty Association 	(Association),
violated section 	3571.l(b) 	and 	(e) 	of the Higher Education
Employer-Employee Relations Act 	(HEERA or Act).l Finding the
'HEERA 	is 	codified at Government Code 	section 	3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 	are
to the Government Code. 	Section 3571.1 	reads, 	in pertinent part:
It 	shall 	be unlawful 	for the higher education
employer to:
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dismissal 	to be 	free of prejudicial 	error, 	the 	Board adopted it
as 	the 	Decision of 	the 	Board 	itself, 	and dismissed the 	unfair
practice 	charge without 	leave to amend. 	Specifically, 	the 	Board
found 	that 	the Association did not 	breach 	its 	duty 	of 	fair
representation 	in 	its 	representation 	of 	the 	charging party
concerning 	a 	disciplinary dismissal.
DISCUSSION
PERB Regulation 32410(a)2 states, 	in pertinent part:
(a) 	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 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.
In his Motion 	for Reconsideration, 	the charging party 	(1)
requests 	the 	Board 	to reconsider 	its 	decision based 	on 	"new
evidence and law"; 	(2) 	asserts 	that the Board's decision is not
supported by the 	facts; 	and 	(3) 	argued that the Board's
(b) 	Deny to employee 	organizations 	rights
guaranteed to 	them by 	this 	chapter.
(e) 	Refuse to participate 	in good 	faith in
the 	impasse procedure 	set 	forth in Article 	9
(commencing with Section 3590).
2PERB 	regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 	et seq.
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conclusion 	that 	the 	Board agent's 	statements 	are 	free 	from
prejudicial 	error 	is 	erroneous 	and prejudicial.
The 	charging party claims 	that on August 2, 	1988, 	he noticed
that under 	section 3563(h) 	of HEERA, 	PERB is authorized to
investigate 	alleged violations 	of 	HEERA and to 	take 	such 	action
as 	the 	Board deems 	necessary 	to effectuate 	the 	policies 	of 	the
Act. 	The 	charging party alleges 	that 	the 	purposes 	of 	HEERA have
been violated by 	the 	failure 	of 	the 	memorandum of 	understanding
(MOU) 	to provide 	for a 	faculty hearing 	for a 	faculty member
facing disciplinary action, 	in violation of Education Code
section 89542.5(a). 	Additionally, 	the charging party asserts
that 	the Association has 	failed 	to 	adequately represent 	the
charging party 	and 	the 	interest 	of 	other 	faculty members 	in
grievance 	and disciplinary proceedings.3 In adopting 	the 	Board
agent's dismissal as its decision, 	the Board, 	like the Board
agent, 	considered 	charging party's 	allegation that 	the 	MOU's
failure 	to provide 	for 	a 	faculty hearing 	constitutes 	a violation
of 	the 	Education Code. 	The 	Board has 	held, 	based on PERB
3In his 	Motion 	for Reconsideration, 	the 	charging party
requested PERB to 	seek injunctive 	relief to: 	(1) 	restore 	the
rights 	of 	faculty members 	facing dismissal 	charges; 	and 	(2)
reinstate 	the 	charging party 	as 	a 	professor at 	California 	State
University at 	Long Beach. 	This 	request 	for injunctive 	relief was
denied by the General Counsel 	by letter dated August 	9, 	1988,
based on: 	(1) 	the 	fact that there 	is no 	jurisdictional basis 	for
PERB 	to 	seek 	injunctive 	relief 	as 	no unfair practice 	complaint
has 	issued; 	and 	(2) 	the 	failure of the charging party to comply
with 	the 	requirements 	established 	by 	PERB 	Regulation 	32450
(Calif. 	Admin. 	Code, 	title 8, 	secs. 	32450-32470) which sets forth
the 	procedures 	for 	requesting 	the 	Board 	to 	seek 	injunctive
relief.
W
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Regulation 32410(a), 	that reconsideration is not appropriate when
a 	party merely 	restates 	an 	argument 	previously 	considered 	and
rejected by 	the 	Board in 	its 	underlying decision. 	(Rio 	Hondo
Community College District 	(1983) 	PERB Decision No. 	279a.)
Reconsideration 	is 	also 	not 	appropriate 	based 	on 	charging party's
argument that he 	first became aware of 	section 	3563(h) 	of 	HEERA
on August 2, 	1988. 	This argument must fail, 	as 	the provisions of
HEERA do not 	constitute 	law that was 	not previously available, 	or
could not 	have 	been discovered with the 	exercise 	of 	reasonable
diligence.
Charging party next 	contends 	that the 	Board's 	decision 	is
not 	supported by the 	facts, 	and that 	the 	Board agent's 	statements
are 	not 	free 	from prejudicial 	error. 	Charging party disagrees
with the 	Board agent's 	findings, 	and cites 	specific 	examples 	of
prejudicial 	error 	concerning 	the 	Board 	agent's 	statements
contained 	in the 	Board agent's 	dismissal. 	Charging party
concludes 	that, 	had the Board reviewed the 	file, 	the Board would
not 	have made 	its 	decision to dismiss 	the 	unfair practice 	charge
without leave 	to amend. 	In reaching 	its decision in the
underlying case, 	the Board reviewed the 	file, 	including the 	Board
agent's 	dismissal, 	and ultimately adopted the dismissal 	as 	the
decision 	of 	the 	Board 	itself. 	Although 	charging party disagrees
with the 	Board's 	decision, 	there 	is no evidence 	that the 	Board's
decision contains 	prejudicial 	errors 	of 	fact.
Therefore, 	having rejected the 	charging party's 	arguments 	in
support of 	its 	request 	for reconsideration, 	for the reasons 	set
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forth above, 	we 	find that 	the 	charging party has 	failed to
demonstrate 	extraordinary 	circumstances 	warranting
reconsideration.
ORDER
The 	request 	by 	charging party 	that 	the 	Public 	Employment
Relations 	Board 	grant 	reconsideration 	of 	California 	Faculty
Association 	(Wang) 	(1988) 	PERB Decision No. 	692-H is DENIED.
Members 	Porter, 	Craib, 	and Shank 	joined in this 	Decision.
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