Regents of the University of California Professional Librarians (PERB 0247HC)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
IN 	THE MATTER OF:
UNIT 	DETERMINATION 	FOR PROFESSIONAL
LIBRARIANS 	OF 	THE 	UNIVERSITY OF
CALIFORNIA 	PURSUANT 	TO CHAPTER 744
OF 	THE 	STATUTES 	OF 	1978 	(HIGHER
EDUCATION 	EMPLOYER-EMPLOYEE
RELATIONS 	ACT)
Case 	Nos.
SF-PC-1001 et al.
Request 	for 	Reconsideration
PERB Decision No. 	247b-H
PERB Decision No. 	247c-H
August 19, 	1983
Appearances: 	Robert J. 	Bezemek, Attorney 	(Bennett 	& Bezemek) 	for
the University Council, 	American Federation of Teachers;
Douglas H. 	Barton, 	Kent Jonas and Mary Maloney Roberts, 	Attorneys
(Corbett, Kane, Berk & Barton) 	and James N. Odle, Associate Counsel
for 	the 	Regents 	of 	the University of California.
Before: 	Tovar, Jaeger, Morgenstern and Burt, Members.*
DECISION
On March 	23, 	1983, 	the Public Employment Relations Board
(PERB or 	Board) 	issued 	a 	decision1 under 	the Higher Education
Employer-Employee 	Relations Act 	(HEERA)2 determining 	the
supervisory 	and 	managerial 	exclusions 	from 	the 	professional
*Chairperson Gluck 	did 	not participate 	in 	this 	decision.
1In the 	Matter 	of: 	Unit 	Determination 	for 	Professional
Librarians 	of 	the University of 	California 	Pursuant 	to
Chapter 	744 	of 	the Statutes 	of 	1978 	(Higher 	Education
Employer-Employee Relations Act) 	(3/23/83) 	PERB Decision
No. 247b-H.
2The 	HEERA 	is 	codified 	at Government Code 	section 	3560
et 	seq.
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librarians 	bargaining 	unit 	at 	the University of 	California
(UC). 	Thereafter, 	the University Council, American Federation
of Teachers 	(AFT) 	filed 	a 	request 	for 	reconsideration of 	the
Board's 	exclusionary decisions. 	UC 	filed 	a 	response 	to 	this
request 	urging 	that 	the 	Board 	deny 	reconsideration.
AFT makes 	several objections 	to 	the Board's 	exclusionary
decisions 	in 	the professional librarians 	unit. 	It raises 	the
previously 	argued 	objection 	that 	the 	UC 	declarations 	are 	merely
conclusory 	and 	lack 	sufficient 	facts 	to 	establish 	a prima 	facie
case 	for 	exclusion 	of 	supervisory 	and 	managerial 	employees.3
AFT 	concomitantly 	objects 	that 	the 	Board 	first 	announced 	its
standard 	of 	a prima facie case 	in the March 	23, 	1983 decision,
so 	that AFT was 	not 	afforded 	an opportunity 	to provide 	rebuttal
evidence 	to UC's declarations. 	Finally, 	AFT argues 	that 	it was
not possible 	to obtain counter-declarations 	to 	rebut 	the
declarations 	submitted 	by UC 	because 	it was 	difficult 	to
communicate 	with 	employees 	designated 	supervisory 	and
managerial. 	In 	its 	request 	for 	reconsideration, AFT also
indicates 	that 	it 	has 	obtained 	counter-declarations 	from
approximately 100 	individuals 	who 	have 	been 	determined 	to 	be
3The 	procedure 	regarding 	declaration 	evidence 	was
previously described 	in 	the Board's 	decision, 	In 	the Matter
of; 	Unit Determination 	for 	Professional Scientists 	and
Engineers, 	Lawrence Livermore National Laboratory, 	of 	the
University of 	California 	Pursuant 	to 	Chapter 	744 	of 	the
Statutes 	of 	1978 	(Higher 	Education Employer-Employee 	Relations
Act) 	(3/8/83) 	PERB Decision No. 	246b-H.
N
	2

supervisory or 	managerial. 	It 	asserts 	that PERB 	should 	now
consider 	these 	counter-declarations 	and 	permit 	all 	of 	the
contested 	individuals 	to 	vote 	challenged 	ballots 	in 	the 	election
or 	reverse 	its 	prior 	decision 	and 	decide 	the 	exclusions 	based 	on
the 	information 	now available.
UC 	argues 	in 	its 	response 	to AFT's 	request 	for
reconsideration 	that 	AFT 	has 	not 	shown 	any 	"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" 	within 	the meaning of PERB
rule 	32410.4 	UC 	also notes 	that 	the 	entire 	procedure
4PERB 	rule 	32410, 	governing 	requests 	for 	reconsideration,
provides:
(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. 	An
original 	and 	5 	copies of 	the 	request 	for
reconsideration 	shall 	be 	filed 	with 	the
Board 	itself 	in 	the 	headquarters 	office 	and
shall 	state 	with 	specificity 	the 	grounds
claimed and, 	where applicable, 	shall specify
the 	page 	of 	the 	record 	relied 	on. 	Service
and proof of 	service 	of 	the 	request pursuant
to Section 	32140 	are 	required. 	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.
(b) 	Any party shall have 	20 days 	from
service 	to 	file 	a 	response 	to 	the 	request
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regarding 	the 	establishment of 	a prima 	facie 	case 	was 	explained
in 	the Board's 	September 	15 	Supplement 	to Pre-hearing Notice 	and
Order 	of August 12, 	1982, 	so 	that AFT was on notice 	that 	it
could 	elect 	either 	to 	object 	to UC's 	declarations 	on prima 	facie
grounds 	or, 	in 	the 	alternative, 	to 	file counter-declarations.5
for 	reconsideration. 	An 	original and 	5
copies of 	the 	response 	shall 	be 	filed 	with
the Board 	itself 	in 	the 	headquarters
office. 	Service 	and proof of 	service of 	the
response pursuant 	to Section 	32140 	are
required.
(c) 	The 	filing of a 	request 	for
reconsideration 	shall 	not operate 	to 	stay
the 	effectiveness 	of 	a decision of 	the Board
itself 	unless otherwise 	ordered 	by 	the Board
itself.
PERB 	rules 	are 	codified 	at 	California Administrative 	Code,
title 	8, 	section 	31001 et 	seq.
5The 	September 	15 	Supplement 	to 	Pre-hearing Notice 	and
Order 	of August 	12, 	1982, 	provided 	in pertinent part:
[E]mployee 	organizations 	must 	submit 	legally
sufficient counter-declarations 	. 	. 	. 	unless
they 	choose 	to 	oppose 	a proposed 	exclusion
by 	specifying 	the 	basis 	for 	asserting 	that 	a
prima 	facie case 	has 	not 	been 	stated. 	I
wish 	to make 	it clear 	that 	this 	is an
either/or 	option. 	If 	an organization
chooses, 	in this investigation, 	to oppose a
proposed 	exclusion 	based 	on 	the 	failure 	of
the University 	to 	state 	a prima 	facie 	case,
it will 	not 	be 	granted 	an 	additional
opportunity 	to oppose 	the 	exclusion on 	the
merits. 	(Emphasis 	in original.)
4

UC 	also points 	out 	that 	the AFT 	counter-declarations 	could 	have
been 	obtained 	and 	submitted 	before 	rather 	than 	after 	the 	Board's
decision 	issued.
The 	Board 	denies AFT's 	request 	for 	reconsideration 	for
failure 	to 	show 	"extraordinary circumstances" 	within 	the meaning
of 	PERB 	rule 	32410, 	supra. 	The Board 	fully considered 	the
sufficiency of 	the UC declarations 	in Decision No. 	247b-H,
supra. 	It 	found 	the declarations 	adequate, 	especially 	in 	the
absence 	of 	counter-declarations 	which 	could 	have 	been 	submitted
by AFT. 	The 	fact 	that AFT was 	able 	to obtain counter-
declarations 	after 	the 	issuance of 	the Board's 	decision 	negates
its 	argument 	that 	they were 	unobtainable 	in 	the period 	before
the Board's 	decision. 	Finally, 	AFT was on notice 	that 	it had
the 	election 	of 	challenging 	the 	prima 	facie 	validity of 	UC's
declarations or, 	in the alternative, 	submitting counter-
declarations. 	This 	was 	explained 	in 	the Board's September 	15
Supplement 	to Pre-hearing Notice 	and Order 	of August 	12, 	1982,
supra. 	AFT made 	its 	election 	and 	did 	not 	submit counter-
declarations.
Thus, 	AFT has 	not 	shown 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. 	Its 	request 	for 	reconsideration 	is
denied.
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ORDER
Upon 	the 	foregoing Decision 	and 	the 	entire 	record 	in 	this
case, 	the Public Employment Relations Board ORDERS 	that 	the
request 	for 	reconsideration of 	the 	supervisory 	and 	managerial
exclusions 	from 	the 	professional 	librarians 	bargaining 	unit 	at
the University of California, 	filed 	by 	the University Council,
American Federation of Teachers, 	is 	DENIED for 	failure 	to 	show
extraordinary 	circumstances.
By 	the 	BOARD
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