Regents of the University of California (Irvine) (PERB 2255HA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COALITION OF UNIVERSITY EMPLOYEES,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA (IRVINE),
Respondent.
Case No. SF-CE-924-H
Request for Reconsideration
PERB Decision No. 2255-H
PERB Decision No. 2255a-H
June 28, 2012
Appearances: Renne, Sloan, Holzman & Sakai by Timothy G. Yeung and Erich W. Shiners,
Attorneys, for Regents of the University of California (Irvine); Beeson, Tayer & Bodine by
Jason Rabinowitz, Attorney, for Coalition of University Employees.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members. 1
DECISION
DOWD IN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on requests filed by the Coalition of University Employees (CUE) and
the Regents of the University of California (Irvine) (UCI) to amend or reconsider Regents of
the University of California (Irvine) (2012) PERB Decision No. 2255-H (UC Irvine). 	The
underlying case involved an unfair practice charge filed by CUE under the Higher Education
Employer-Employee Relations Act (HEERA)2 alleging that UCI violated HEERA by
unilaterally implementing a policy requiring bargaining unit employees at UCI Medical Center
to either wear a surgical mask while at work or demonstrate that they had received an
inoculation for the 	lNl flu virus, and to wear insignia indicating whether they had been
immunized, without having afforded CUE an opportunity to meet and confer over the decision
Chair Martinez did not participate in this decision.
2 HEERA is codified at Government Code section 3560 et seq.

to implement the change in policy and/or the effects
of
the change in policy. Following
issuance
of
a complaint on the charge by PERB's Office
of
the General Counsel, the matter
was heard before a PERB administrative law judge (ALJ) who issued a proposed decision
finding that UCI did not violate HEERA and dismissing the complaint and underlying unfair
practice charge. Both CUE and UCI filed exceptions to the ALJ's proposed decision. While
the matter was pending before PERB on the parties' exceptions, by letter dated April 3, 2012,
CUE notified the Board that it wished to withdraw the charge in this matter with prejudice,
pursuant to a global settlement agreement between the parties. On April 25, 2012, PERB
issued UC Irvine granting CUE's request to withdraw the unfair practice charge with prejudice.
On May 18, 2012, CUE submitted a letter to PERB stating that, pursuant to an
agreement
of
the parties, it wished to amend its request to withdraw the charge and request
instead to withdraw the exceptions to the ALJ's decision. The letter further requested that the
Order be amended to reflect the change. On May 21, 2012, UCI filed a "REQUEST TO
AMEND ORDER OR, IN THE ALTERNATIVE, MOTION FOR RECONSIDERATION OF
PERB DECISION NO. 2255-H." In its motion, UCI stated that it "joins in CUE's request that
the order in PERB Decision No. 2255-H be amended to reflect a withdrawal
of
exceptions as
opposed to a withdrawal
of
the unfair practice charge." UCI's submission includes a copy
of
a
Global Settlement Agreement that states that the parties have agreed to settle the charges listed
on an attachment according to the terms set forth 	the attachment, and that these terms
represent a full and complete resolution of the claims and disputes involved in those charges.
With respect to the instant charge, 	attachment states: 	exchange for withdrawal
of
CUE's exceptions, UCIMC agrees to meet and discuss effects; however, such discussions will
2

not prevent UCSFMC from continuing to move forward with this year's implementation
of
the
flu vaccination and mask wearing requirements."3
DISCUSSION
The Board has processed the parties' requests as a joint request for reconsideration
pursuant to PERB Regulation 32410. 4 Under PERB Regulation 32410(a), PERB has the
authority to grant reconsideration
of
a Board decision where, because
of
extraordinary
circumstances: "(
1)
the decision
of
the Board itself contains prejudicial errors
of
fact,
or
(2) the party has newly discovered evidence which was not previously available and could not
have been discovered with the exercise
of
reasonable diligence." The Board applies the
regulation's criteria strictly to avoid the use
of
the reconsideration process to reargue or
relitigate issues that have already been decided. (Regents
oft
he University
of
California
(2000) PERB Decision No. 1354a-H, citing Redwoods Community College District (1994)
PERB Decision No. 1047a, State
of
California Department
of
Corrections) (1995) PERB
Decision No.
11
00a-S, and Fall River Joint Unified School District (1998) PERB Decision
No. 1259a.) The Board has, however, used its authority under Regulation 32410(a) to correct
an erroneous order to reflect the terms
of
a settlement agreement where necessary to effectuate
the purposes
of
the applicable statute. (Office
of
the Santa Clara County Superintendent
of
Schools (1982) PERB Decision No. 233a (Santa Clara Superintendent) [request for
reconsideration granted and prior decision vacated based upon showing that party inadvertently
neglected to withdraw exceptions to proposed decision, where settlement provided for
withdrawal
of
case from 	; Trustees
of
the California State University (San Marcos)
3
It
appears that "UCSFMC" refers to the University of California San Francisco
Medical Center. It is unclear whether this statement was intended to refer to UCL
4 PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
3

(2011) PERB Decision No. 2195-H (San Marcos) [proposed decision vacated based upon
settlement agreement to withdraw charge that neglected to include withdrawal of appeal
pending before Board].)
In this case, both parties have requested that the Board's decision be amended to reflect
the parties' agreement to withdraw the exceptions to the ALJ's proposed decision, rather than
withdrawal of the charge itself. 5 The Board has a longstanding policy of favoring voluntary
settlement of disputes. (Dry Creek Joint Elementary School District (1980) PERB Order
No. Ad-81a; Santa Clara Superintendent; San Marcos.) Accordingly, the Board concludes it
effectuates the purposes of HEERA to permit withdrawal of the exceptions to the ALJ' s
proposed decision. Thus, the ALJ's proposed decision will become final. 	(PERB Reg. 32305.)
ORDER
The requests by the Regents of the University of California (Irvine) and the Coalition of
University Employees for reconsideration in Case No. SF-CE-924-H is hereby GRANTED.
All exceptions to the proposed decision are hereby deemed withdrawn, and the proposed
decision will become final pursuant to PERB Regulation 32305.
Member Hugueninjoined in this Decision.
5 We note that UCI also filed a cross-exception to the ALJ' s proposed decision
concerning the issue of whether its policy was within the scope of representation. Neither the
settlement agreement nor the parties' submissions expressly requests that UCI's exception also
be withdrawn. Given that the settlement agreement 	to UCI's agreement to meet and
discuss the effects of its policy, we construe the parties' request to include the withdrawal of
UCI's exception as well.
4