State of California (Department of Personnel Administration) (California State Employees Association) (PERB A221SA)

STATE
	OF
	CALIFORNIA
DECISION
	OF	
THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA 	(DEPARTMENT
OF
	PERSONNEL 	ADMINISTRATION),
Respondent.
)
)
)	
Case
	No.
	S-OS-86-S
Request
	for 	Reconsideration
PERB
	Order
	No.
	Ad-221-S
PERB
	Order
	No.
	Ad-221a-S
July
	10,
	1991
)
)
)
)
)
)
)
)
____________________ )
Appearances:	
Howard
	Schwartz,
	Assistant
	Chief 	Counsel,
	for
California 	State
	Employees'
	Association; 	Christopher
	W.
	Waddell,
Chief
	Counsel,
	for 	State
	of
	California,
	Department
	of 	Personnel
Administration.
Before
	Hesse,
	Chairperson;
	Shank 	and
	Camilli,
	Members.
DECISION
HESSE,
	Chairperson:
	This
	case
	is
	before 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	a
	request 	for
reconsideration
	filed
	by
	the 	California 	State
	Employees'
Association
	(CSEA)
	of 	the
	Board's
	decision 	in 	State
	of
	California
(Department
	of 	Personnel 	Administration)
	(1991)
	PERB
	Order
No.
	Ad-221-S.
	In
	that
	decision, 	the
	Board
	affirmed 	the 	Regional
Director's
	decision 	to
	deny
	CSEA's
	motion
	to
	exclude
	certain
employees 	from
	the 	voter
	eligibility 	list.
	The
	Board
	held
	that,
pursuant 	to 	the
	statute, 	regulations
	and 	case 	law,
	PERB
	is
	bound
to 	follow 	the
	terms 	of 	the 	consent 	election
	agreement
	(CEA). 	As
the
	CEA
	is 	clear
	and 	unambiguous 	on
	its
	face, 	the
	Board 	found
that 	the 	election 	should 	proceed 	pursuant 	to 	the 	terms 	of 	the
CEA.

DISCUSSION
PERB 	Regulation 	32410(a) 1 states, 	in 	pertinent 	part:
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 	its 	request 	for 	reconsideration, 	CSEA 	contends 	that
the 	Board 	failed 	to 	examine 	section 	3.C.1. 	of 	the 	CEA, 	which
provides:
The 	following 	groups 	of 	employees 	are 	NOT
eligible 	to 	vote:
1. 	All 	employees 	who 	are 	not 	employed 	in
classifications 	or 	positions 	within 	Unit 	1,
such 	as 	employees 	in 	positions 	which 	have
been 	determined 	to 	be 	managerial,
supervisory, 	confidential 	or 	excluded 	from
coverage 	under 	the 	Dills 	Act 	by 	the 	PERB 	or
by 	written 	agreement 	of 	the 	State 	employer
and 	CSEA.
In 	its 	appeal 	from 	the 	Regional 	Director's 	administrative
decision, 	CSEA 	argued 	that 	section 	3.C. 1. 	applied 	throughout
the 	duration 	of 	the 	election 	and 	operated 	to 	make 	ineligible 	any
individual 	who 	terminated 	their 	employment 	in 	unit 	1 during 	or
prior 	to 	the 	ballot 	count. 	CSEA 	asserts 	the 	Board 	"completely
ignored 	the 	provisions 	of 	section 	3.C.1." 	Rather, 	the 	Board
relied 	upon 	section 	3.A. 	of 	the 	CEA, 	which 	states:
The 	eligible 	voters 	shall 	be 	those 	employees
within 	Unit 	1 who 	were 	employed 	as 	of
January 	31. 	1991. 	"Employed" 	means 	on paid
1PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 	31001 	et 	seq.
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or
	unpaid
	status 	in
	any
	position
	included
	in
Unit
	1.
CSEA
	alleges
	that
	the
	Board
	failed
	to
	read
	section
	3.C.1.
	in
cbnjunction
	with
	section
	3.A.
	of
	the
	CEA.
In
	response
	to
	CSEA 1 s
	argument
	that
	the
	Board
	ignored
	the
provisions
	of
	section
	3.C.l.
	of
	the
	CEA,
	the
	Board
	considered
all
	of
	CSEA 1 s
	arguments
	in
	its
	appeal 	of 	the
	Regional
	Director
1 s
administrative
	decision.
	The
	Board
	first
	examined
	section
3.C.
1.,
	which
	determined
	the
	employees 	employed
	in
classifications
	or
	positions
	excluded
	from
	bargaining
	unit
	1.
Once
	the
	parties
	determined
	the
	employees
	within 	bargaining
unit
	1
	under
	section
	3.C.
	of 	the
	CEA,
	then, 	pursuant
	to 	section
3.A.
	of 	the
	CEA,
	the
	parties
	determined
	voter
	eligiblity
	based
on
	those
	employees
	within 	bargaining
	unit
	1 who
	were 	employed
as
	of
	January
	31, 	1991.
	In
	its
	discussion, 	the
	Board
	considered
the 	pertinent
	sections 	of 	the
	CEA
	to
	determine
	voter
	eligibility.
In
	relying
	upon
	section
	3.A.
	of
	the
	CEA,
	the
	Board
	necessarily
found
	that
	section
	3.C.1. 	did 	not 	apply
	to
	make
	ineligible
	any
individual
	who
	terminated
	their
	employment
	in 	bargaining
	unit
	1
after
	January
	31, 	1991.
In
	any
	event, 	these
	arguments 	merely
	restate 	the
	arguments
made
	by
	CSEA
	in
	its
	previous 	appeal.
	As 	CSEA
	fails
	to
	identify
any
	prejudicial 	errors 	of 	fact 	contained 	in 	the
	Board
1 s
	decision,
nor
	is 	its
	request
	based
	on 	newly
	discovered 	evidence 	or
	law
which
	was
	not 	previously 	available
	and 	could 	not 	have 	been
discovered 	with 	the 	exercise 	of 	reasonable 	diligence,
	CSEA's
request 	for 	reconsideration 	of
	PERB
	Order
	No. 	Ad-221-S
	is 	denied.
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ORDER
In 	accordance 	with 	PERE 	Regulation 	32410, 	the 	request 	for
reconsideration 	of 	PERB 	Order 	No. 	Ad-221-S 	is 	hereby 	DENIED.
Members 	Shank 	and 	Camilli 	joined 	in 	this 	Decision.
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