Regents of the University of California (Bawal, et al.) (PERB 1354HA)

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STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BHANU BAWAL,
Charging 	Party,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case NO. 	LA-CE-476-H
Request 	for
Reconsideration 	of
PERB Decision No. 	1354-H
PERB Decision No. 	1354a-H
May 24, 	2000
HENRY HAO, 	SALLY JO MICHAEL,
LOURDES 	INCHAUSPI, 	ALLEN FUKUCHI,
et al.,
Charging 	Parties,
v.
REGENTS 	OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case NOS. 	LA-CE-478-H,
LA-CE-479-H, 	LA-CE-480-H
and 	LA-CE-481-H
Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by James
Rutkowski, 	Attorney, 	for Bhanu Bawal, 	Henry Hao, 	Sally Jo
Michael, 	Lourdes Inchauspi, Allen Fukuchi, 	et al.; Atkinson,
Andelson, 	Loya, 	Ruud & Romo by James C. 	Romo, 	Attorney, 	for
Regents 	of 	the University of California.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
AMADOR, 	Member: 	These 	consolidated cases 	come before 	the
Public Employment Relations Board 	(PERB 	or Board) 	on a 	request by
the Regents 	of 	the University of 	California 	(University) 	that 	the
Board grant 	reconsideration of 	Regents 	of 	the University 	of
California 	(1999) 	PERB Decision No. 	1354-H 	(Regents). 	In that
case, 	the Board affirmed the administrative 	law judge's 	(ALJ)
finding that 	the University violated section 3571(a) 	of 	the
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Higher Education Employer-Employee Relations Act 	(HEERA)1 when it
failed 	to meet 	and discuss 	a 	layoff 	and 	rehire 	program in good
faith with University 	Professional 	and 	Technical 	Employees
(UPTE).
After reviewing the 	entire 	record, 	including 	the
University's 	request 	and 	the 	response 	filed by Bhanu Bawal,
Henry Hao, 	Sally Jo Michael, 	Lourdes Inchauspi, 	Allen Fukuchi,
et al., 	the Board hereby denies 	the request 	for reconsideration.
DISCUSSION
Reconsideration 	requests 	are 	governed by 	PERB 	Regulation
32410,2 which states, 	in part:
(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
HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references herein are
to the Government Code. 	Section 3571 provides, 	in pertinent
part, that:
It 	shall 	be unlawful 	for the higher education
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.
2PERB 	regulations 	are 	codified at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
.
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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 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. 	[Emphasis added.]
On October 22, 	1999, 	the University filed the 	instant
request 	seeking 	reconsideration of 	Regents. 	The University
challenges 	the Board's 	statement at page 	3, 	which states 	that
"The University offers no exceptions 	to 	the ALJ's 	finding of 	a
violation 	concerning 	the 	alleged 	refusal 	to provide 	information"
[emphasis added]. 	The University claims that 	this 	is a
prejudicial 	error of 	fact 	which requires 	the Board 	to 	reconsider
the decision.
The 	Board has 	never 	ruled definitively 	on what 	constitutes
"extraordinary 	circumstances." 	This 	reconsideration 	request 	does
not 	identify any 	circumstances 	that would 	fall 	under 	the 	common
understanding of 	the 	term 	"extraordinary"; 	however, 	the Board
will 	analyze 	the 	request 	further.
Grounds 	Offered 	for 	Reconsideration
1. 	Prejudicial 	Error of 	Fact
.. .
The University correctly notes 	that 	the 	statement 	at page 	3
of 	Regents 	that 	"The University offers 	no exceptions 	to 	the ALJ's
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finding 	of 	a violation 	concerning 	the 	alleged refusal 	to provide
information" 	is 	inaccurate. 	That 	language 	reflects 	a production
error.
The 	University did 	in 	fact 	file 	exceptions 	relating 	to 	the
information request allegation, 	among other exceptions. 	In
Regents. 	after reviewing the entire 	record, 	the Board held:
The Board 	finds 	the ALJ's 	findings 	of 	fact 	to
be 	free 	of prejudicial 	error and hereby
adopts 	them as 	the 	findings 	of 	the Board
itself. 	[At p. 	2; 	emphasis added.]
In the next paragraph, 	the Board made 	reference 	to the ALJ's
finding 	of 	a violation 	concerning 	the 	alleged 	refusal 	to provide
information 	and 	held:
This 	Board 	finds 	this 	conclusion of 	law
[regarding 	the alleged refusal 	to provide
information] 	to be 	free of prejudicial 	error
and hereby adopts 	it 	as 	the decision of 	the
Board itself. 	[.Id. 	at p. 	3; 	emphasis added.]
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In making 	those 	two 	rulings, 	the Board clearly 	indicated that 	it
had 	read and 	considered 	the 	"entire 	record" 	in 	reaching 	its
conclusion that 	the ALJ's decision was valid. 	This 	review, 	of
necessity, 	included the exceptions and response.
Other statements 	in Regents 	confirm this 	conclusion. 	For
example, 	on page 2 	of Regents, 	the Board notes that 	its review
included the 	"filings 	of 	the parties." 	Immediately afterwards,
the 	Board acknowledged 	that 	"The 	University 	challenges 	the ALJ's
factual and legal 	conclusions and the remedy. 	. 	." 	Logically,
such 	references 	could only pertain 	to all 	of 	the 	exceptions 	filed
by 	the University to 	the 	findings 	of 	the ALJ.
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When viewed in context, 	it 	is 	clear that 	the 	inclusion of
the word 	"no" 	in the 	sentence 	challenged by the University was 	a
production 	error. 	An errata deleting 	the 	erroneous 	language has
issued with 	this 	Decision.
The 	University 	characterizes 	the 	error as 	a 	"prejudicial
error of 	fact." 	We disagree. 	We 	instead 	find that 	Regulation
32410 	does 	not 	encompass 	errors 	of 	the 	type which appeared 	in 	the
original 	printing of 	Regents. 	The Board 	therefore denies 	those
portions 	of 	the University's 	reconsideration request 	insofar as
they assert prejudicial 	errors 	of 	fact.
2. 	Other Grounds
The 	remainder of 	the University's 	reconsideration 	request 	is
largely 	comprised of 	arguments 	that 	have 	been previously
considered and 	rejected. 	In 	reviewing 	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
1
; 	State of
California 	(Department of Corrections) 	(1995) 	PERB Decision
No. 	ll00a-S; 	Fall 	River Joint Unified School District 	(1998) 	PERB
Decision No. 	1259a.) 	The Board has ruled, 	frequently, 	that
arguments 	which were 	previously asserted 	and 	rejected are 	not
grounds 	for reconsideration. 	(See, 	e.g., 	California State
University 	(1995) 	PERB Decision No. 	1093a-H; 	California State
Employees Association. 	Local 	1000 	(Janowicz) 	(1994) 	PERB Decision
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No. 	1043a-S; 	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 the
University's 	request 	fails 	to 	comply with 	PERB Regulation 	32410
and hereby denies 	the University's 	request 	for 	reconsideration 	of
Regents.
ORDER
The Regents 	of 	the University of 	California's 	request 	for
reconsideration of 	the Board's 	decision 	in Regents 	of 	the
University of California 	(1999) 	PERB Decision No. 	1354-H is
hereby 	DENIED.
Members 	Dyer and Baker joined 	in 	this 	Decision.
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