Trustees of the California State University (East Bay) (PERB 2391HA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WENJIU LIU,
Charging Party,
v.
TRUSTEES OF THE CALIFORNIA STATE
UNIVERSITY (EAST BAY),
Respondent.
Case No. SF-CE-995-H
Request for Reconsideration
PERB Decision No. 2391-H
PERB Decision No. 2391a-H
April 14, 2015
Appearance: Wenjiu Liu, on his own behalf.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration by Wenjiu Liu (Liu) of the Board's decision
in Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H
( Trustees). In that decision, the Board upheld the administrative law judge's (ALJ) proposed
decision dismissing Liu's allegation that the Trustees of the California State University
(East Bay) (CSUEB) retaliated against him by denying him tenure and promotion and by
restricting him from campus grounds. The Board also affirmed the ALJ' s interlocutory order
deferring Liu's allegations concerning his suspension and dismissal to arbitration and the
ALJ's determination that the arbitrator's award was not repugnant to the Higher Education
Employer-Employee Relations Act (HEERA).1
1 HEERA is codified at Government Code section 3560 et seq.

Liu now requests reconsideration of our decision, claiming that: (1) the decision of the
Board itself contains prejudicial errors of fact; (2) Liu has newly discovered evidence which
was not previously available and could not have been discovered with the exercise of
reasonable diligence.
The Board has reviewed Liu's request for reconsideration in light of the relevant law.
Based on this review, and for the reasons discussed below, the Board denies Liu's request for
reconsideration.
DISCUSSION
Requests for reconsideration of a final Board decision are governed by PERB
Regulation 32410(a)2 which states, in pertinent 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. . . . [T]he request for reconsideration . . .
shall state with specificity the grounds claimed and, where
applicable, shall specify the page of the record relied
on. . . . 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 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.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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Because reconsideration may only be granted under "extraordinary circumstances," the
Board applies PERB Regulation 32410 strictly. (Regents of the University of California
(2000) PERB Decision No. 1354a-H.) A request for reconsideration "is not simply an
opportunity to ask the Board to 'try again.'" (Chula Vista Elementary School District (2004)
PERB Decision No. 1557a.) The limited grounds on which a party may request
reconsideration preclude a party from using the reconsideration process to re-argue or
re-litigate issues that have already been decided. (Redwoods Community College District
(1994) PERB Decision No. 1047a.) Neither may a party use the reconsideration process to
register disagreement with the Board's legal ·analysis. (California State Employees Association
(Hard, et al.) (2002) PERB Decision No. 1479a-S.)
On its face, PERB Regulation 32410 is intended to provide a party the opportunity to
call to the Board's attention prejudicial errors of fact or newly discovered evidence that was
previously unavailable and could not have been discovered with reasonable diligence.
We note that Liu timely filed his initial request with PERB on September 22, 2014. Liu
then filed a second request on September 26, 2014. We held in County of Santa Clara (2013)
PERB Order No. Ad-398-M that "a party may file only one request for reconsideration of a
Board decision, except in those cases where a prior request for reconsideration has resulted in
the issuance of a completely revised decision." (Id. at p. 5.) Since Liu's initial request for
reconsideration did not result in the issuance of a completely revised decision, we disregard
Liu's procedurally defective request filed on September 26, 2014, and solely consider his
request filed on September 22, 2014.
In his September 22, 2014, request Liu alleges that evidence generated in a
whistleblower retaliation superior court trial held in March and April 2014 shows that CSUEB
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President Mohammad Qayoumi (Qayoumi) had full knowledge of the grievances that Liu filed
during his employment at CSUEB, that Qayoumi was dishonest, that Qayoumi' s excuses to
deny Liu tenure were solely pre-textual, that Provost James Houpis (Houpis) had full
knowledge of Liu's protected activities, that Houpis stated that he hated Liu for filing 46
grievances, and that Liu was qualified to receive tenure and promotion.
The evidence submitted by Liu does not meet the requirements under PERB
Regulation 32410(a), either because it is not relevant to the issues sought to be reconsidered
under PERB Regulation 32410(a)(4), and/or it does not impact or alter the decision of the
previously decided case under PERB Regulation 32410(a)(5). Although Liu attached multiple
transcripts of depositions of Qayoumi and Houpis taken during the course of litigation before
the superior court for the County of Alameda, Liu fails (with one exception) to cite to specific
pages of any of the transcripts in support of his request. One page citation he does give (for
the proposition that Houpis hated Liu for filing grievances) does not reflect any testimony
supporting that proposition. A citation he gives to an e-mail (for the proposition that Houpis
had full knowledge of Liu's protected activities) is irrelevant, since there is no evidence that
Houpis had any input or decision-making authority in denying tenure and promotion to Liu,
and since Houpis was not on the threat assessment team which recommended Liu's exclusion
from the campus under Penal Code section 626 and was not involved in the decision to issue
the exclusion order. (Trustees, supra, PERB Decision No. 2391-H, p. 32, fn. 26.)
Liu also attached various documents to show that he played a leading role in protected
faculty group activities to oust Dean Teresa Swartz. Some of the documents consist of e-mails
dated prior to the PERB hearing. However, Liu does not explain why he did not present these
documents at the hearing that commenced on May 18, 2012. Liu attached various documents,
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including grievances, grievance responses, and e-mails to show that CSUEB's administration
had full knowledge of his protected activities. However, all of the documents are dated prior
to the PERB hearing date of May 18, 2012. Despite his assertion that he obtained them in
court proceedings subsequent to the PERB hearing, Liu fails to explain why he could not have
discovered these documents prior to the hearing with the exercise of reasonable diligence. For
these reasons, Liu's request for reconsideration does not comply with PERB
Regulation 32410(a)(l) (evidence "was not previously available"), subdivision (a)(2) (evidence
"could not have been discovered prior to the hearing with the exercise of reasonable
diligence"), and subdivision (a)(3) (evidence "was submitted within a reasonable time of its
discovery"), and we reject the request on that basis.
Liu also alleges that the Board's decision contains a prejudicial error of omitting
reference to retaliation against Liu by CSUEB Interim Associate Provost Linda Dobb and by
incorrectly applying PERB precedent. Liu's allegation that PERB incorrectly applied PERB
precedent is a legal argument that does not meet the requirements under PERB
Regulation 32410(a). We therefore deny Liu's request.
ORDER
Wenjiu Liu's request for reconsideration in Trustees of the California State University
(East Bay) (Liu) (2014) PERB Decision No. 2391-H is hereby DENIED.
Chair Martinez and Member Huguenin joined in this Decision.
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