Service Employees International Union, Local 99 (Wardlaw) (PERB 1219EA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
IRA WARDLAW,
Charging 	Party,
v.
SERVICE 	EMPLOYEES 	INTERNATIONAL
UNION, 	LOCAL 99,
Respondent.
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) 	Case No. 	LA-CO-738
Request 	for Reconsideration
PERB Decision No. 	1219
PERB Decision No. 	1219a
February 	19, 	1998
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Appearance: 	Ira Wardlaw, 	on his own behalf.
Before Caffrey, 	Chairman; 	Johnson and Jackson, 	Members.
DECISION
JACKSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on a 	request 	for reconsideration
by Ira Wardlaw 	(Wardlaw) 	of 	the Board's 	decision 	in Service
Employees International Union. 	Local 99 	(Wardlaw) 	(1997) 	PERB
Decision No. 	1219. 	In the appeal 	of dismissal 	in PERB Decision
No. 	1219, 	Wardlaw alleged that 	the Service Employees
International Union, 	Local 	99 	(Local 	99) 	breached its duty of
fair representation 	in violation of 	section 3544.9 	of 	the
Educational 	Employment Relations Act 	(EERA).1
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1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3544.9 	provides:
The 	employee 	organization 	recognized 	or
certified as 	the 	exclusive 	representative 	for
the purpose 	of meeting and negotiating 	shall
fairly 	represent 	each and 	every 	employee 	in
the appropriate unit.
_____ )
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Specifically, 	Wardlaw alleged that 	Local 	99 	representative
Floyd Lewis 	(Lewis) 	failed to 	file Wardlaw's grievance 	in a
timely manner, 	causing a procedural 	default. 	He alleged further
that 	Lewis 	acted arbitrarily 	in a 	Skelly2 meeting, 	and 	failed to
negotiate on Wardlaw's behalf, 	to 	talk to witnesses 	on Wardlaw's
behalf 	and 	to 	represent 	him 	fully and 	fairly.
The 	Board dismissed 	the 	allegations 	because Wardlaw had
failed 	to allege 	a prima 	facie 	case 	regarding 	Local 	99's 	failure
in 	its 	duty to 	represent 	him. 	Wardlaw was unable 	to allege 	how
Local 	99 	acted 	in bad faith or discriminated against him. 	(United
Teachers of Los Angeles 	(Collins) 	(1982) 	PERB Decision No. 	258.)
Also, 	the Board noted that 	PERB's 	decisions 	do not 	extend the
duty of 	fair representation to extra-contractual 	forums, 	such as
Skelly meetings. 	(Los Angeles Unified School District 	(1994)
PERB Decision No. 	1061.)
REQUEST 	FOR 	RECONSIDERATION
In his 	request 	for 	reconsideration of 	PERB Decision
No. 	1219, 	Wardlaw contends 	that 	the decision contains prejudicial
errors 	of 	fact. 	Wardlaw contends 	that 	the Board stated that
Lewis 	"declined" 	to 	file a grievance 	on Wardlaw's behalf when
Lewis 	actually 	"refused." 	In addition 	to 	repeating arguments
made 	in his appeal 	of 	the dismissal 	in PERB Decision No. 	1219,
Wardlaw seeks 	to 	introduce 	five audio 	tapes 	of 	testimony which he
2Skelly v. 	State Personnel Bd. 	(1975) 	15 Cal.3d 194
[124 Cal.Rptr. 14].
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claims 	will 	prove 	that 	he 	should not 	have 	been disciplined or
terminated by his 	employer.
DISCUSSION
PERB Regulation section 324103 provides 	that 	a party to a
Board 	decision may 	request 	reconsideration 	on 	the 	grounds 	that
the decision contains prejudicial 	errors 	of 	fact, 	or on the
grounds 	of 	newly discovered evidence 	or 	law which was 	not
previously 	available.
The 	Board will 	not 	grant 	a 	request 	for 	reconsideration where
the party making 	the 	request 	has 	failed to 	establish any grounds
set 	forth 	in PERB Regulation 32410. 	(California State 	Employees
Association. 	Local 	1000 	(Janowicz) 	(1994) 	PERB Decision
3PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq. 	Section 32410
provides, 	in relevant 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. 	An original
and 	five 	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.
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No. 	1043a-S at pp. 	2-3, 	(Janowicz).) 	Reconsideration is not
appropriate 	where 	a party merely 	restates 	arguments 	considered
and rejected by 	the Board 	in 	its underlying decision. 	(Janowicz;
Regents 	of 	the University of 	California 	(1990) 	PERB Decision
No. 	829a-H at pp. 	2-3.)
Wardlaw has merely repeated his 	original 	assertions 	or
disagrees 	with 	the 	specific wording 	chosen by 	the 	Board agent.
Further, 	he 	fails 	to explain why the 	five audio tapes were
submitted now 	instead 	of 	submitting 	them during 	the 	investigation
of his unfair practice charge. 	Accordingly, 	he 	fails 	to meet 	the
Board's 	standard 	for 	reconsideration 	requests.
ORDER
The 	request 	for reconsideration 	in Servic	-------	e 	Employees
International Union, 	Local 99 	(Wardlaw) 	(1997) 	PERB Decision
No. 	1219 	is hereby DENIED.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
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