North Orange County Community College District (PERB 1342EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
e
ELIZABETH 	KISZELY,
Charging Party,
v.
NORTH 	ORANGE 	COUNTY 	COMMUNITY
COLLEGE DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3965
Request 	for Reconsideration
PERB Decision No. 	1342
PERB Decision No. 	1342a
December 	2, 	1999
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Appearances: 	Elizabeth Kiszely, 	on her own behalf; 	Parker,
Covert 	& Chidester by Cathie L. 	Fields, 	Attorney, 	for North
Orange 	County 	Community 	College District.
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 North Orange 	County Community College District 	(1999) 	PERB
Decision No. 	1342 	(NOCCD). 	In NOCCD. 	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 	North Orange 	County 	Community 	College 	District 	(District)
retaliated against 	Kiszely 	for 	her participation 	in protected
activities, 	in violation of section 3543.5(a) 	and 	(b) 	of the
Educational 	Employment Relations Act 	(EERA).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:

(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.
After 	reviewing 	the 	entire 	record, 	including 	Kiszely's
request 	and 	the 	District's 	response, 	the 	Board hereby denies 	the
request 	for 	reconsideration.
DISCUSSION
In NOCCD, 	the 	Board 	concluded 	that 	Kiszely's 	repugnancy
review 	request 	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 	arbitrator's 	decision was 	"clearly
repugnant" 	or 	"palpably wrong," 	as 	required. 	(Fremont 	Unified
School District 	(1994) 	PERB Decision No. 	1036 	at p. 	5.)
2 EERA 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 NOCCD. 	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. 	ll00a-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 North Orange 	County 	Community 	College
District) 	(1999) 	PERB Decision No. 	1342 	is hereby DENIED.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
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