State of California (Department of Corrections) (PERB 1559SA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JESSE VICKERS,
Charging Party
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS),
Respondent.
Case No. SA-CE-1384-S
Request for Reconsideration
PERB Decision No. 1559-S
PERB Decision No. 1559a-S
February 19, 2004
Appearance: Jesse Vickers, on his own behalf.
Before Baker, Whitehead and Baker, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration by Jesse Vickers (Vickers) of State of
California (Department of Corrections) (2003) PERB Decision No. 1559-S (Corrections). The
charge alleged that the State of California (Department of Corrections) (Corrections) violated
the Ralph C. Dills Act (Dills Act)' by taking State vehicles away from parole agents in Region
III Headquarters assigned to the Immigration and Naturalization Service (INS) unit in violation
of the memorandum of understanding (MOU) between the State of California and the
California Correctional Peace Officers Association (CCPOA); by creating a new supervision
level, "DP", in the INS unit in violation of the MOU; by reducing the status of INS cases in
violation of the MOU; and, by a local agreement between Corrections' Parole and Community
Services Division (PCSD) and CCPOA which increased workloads for INS unit agents greater
The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

than that allowed by the MOU. In November and December 2000, Vickers filed grievances
regarding these allegations." In July 2002, Vickers alleged that he unsuccessfully requested
information from Jerome Marsh, PCSD Region III, about "local agreements." As a job
steward, Vickers investigated the issues alleged above, and as a result filed the charge on
December 21, 2002. He alleged that the State's conduct constituted a violation of Dills Act
section 3519(a). On November 21, 2003, the Board issued Corrections. On December 8,
2003, Vickers filed a request for reconsideration of the Board's decision.
VICKERS' REQUEST FOR RECONSIDERATION
Vickers requests reconsideration on the basis that Corrections did not fully delineate his
issues in the body of the decision, i.e., violations of PERB's regulations and the California
Penal Code. Vickers also claims that the decision contained an error of fact by overlooking the
stated facts and physical evidence in the charge. Vickers further alleges that the agreement
between Corrections and CCPOA is a successful conspiracy to Vickers' detriment. He
concludes that notwithstanding Dills Act section 3514.5(a) , the Board should litigate his
charge.
"The State's responses to Vickers' grievances were issued no later than the end of
December 2000. CCPOA had refused in writing to proceed with any of these grievances
through the MOU mini-arbitration process. The letters of refusal were issued no later than the
end of February 2001. There is nothing in the record to indicate that since February 2001,
Vickers has appealed the grievances or that the grievances were ultimately submitted to
arbitration.
`Dills Act Section 3514.5 provides, in pertinent part:
The initial determination as to whether the charges of unfair
practices are justified, and, if so, what remedy is necessary to
effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board. Procedures for
investigating, hearing, and deciding these cases shall be devised
and promulgated by the board and shall include all of the
following:
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DISCUSSION
Requests for reconsideration are governed by PERB Regulation 32410.* Section 32410
provides, 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. 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: (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
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following: (1) issue a complaint
in respect of any charge based upon an alleged unfair practice
occurring more than six months prior to the filing of the charge;
2) issue a complaint against conduct also prohibited by the
provisions of the agreement between the parties until the
grievance machinery of the agreement, if it exists and covers the
matter at issue, has been exhausted, either by settlement or
binding arbitration. However, when the charging party
demonstrates that resort to contract grievance procedure would be
futile, exhaustion shall not be necessary. The board shall have
discretionary jurisdiction to review such settlement or arbitration
award reached pursuant to the grievance machinery solely for the
purpose of determining whether it is repugnant to the purposes of
this chapter. If the board finds that such settlement or arbitration
award is repugnant to the purposes of this chapter, it shall issue a
complaint on the basis of a timely filed charge, and hear and
decide the case on the merits; otherwise, it shall dismiss the
charge. The board shall, in determining whether the charge was
timely filed, consider the six-month limitation set forth in this
subdivision to have been tolled during the time it took the
charging party to exhaust the grievance machinery.
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
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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. [Emphasis added.]
Although the request for reconsideration alleges generally that the decision contains an
error of fact, the request does not "state with specificity the grounds claimed" or specify the
page of the decision at which the error or errors occurs. Vickers states that the decision did not
delineate all the issues in the charge but does not identify those issues, only general references
to PERB regulations and the California Penal Code. PERB lacks jurisdiction over violations of
the California Penal Code unless the alleged conduct also constitutes an independent violation
of the Dills Act. (See e.g., Salinas City Elementary School District (1996) PERB Decision
No. 1131; Ventura County Community College District (1996) PERB Decision No. 1167;
Service Employees International Union, Local 535 (Mickle) (1996) PERB Decision No. 1168.)
In the request, Vickers did not make this connection between alleged violations of the Penal
Code and the Dills Act. Vickers also alleges a conspiracy between CCPOA and Corrections
involving an agreement; however, he did not identify the agreement, describe the alleged
conspiracy, or show how the conspiracy violates the Dills Act.
The Board concludes that Vickers' request for reconsideration did not meet the
requirements of PERB Regulation 32410 because it did not contain the requisite specificity nor
allege the limited grounds that could support a grant of reconsideration. As a result, the Board
denies Vickers' request for reconsideration.
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ORDER
Jesse Vickers' request for reconsideration of the Board's decision in State of California
(Department of Corrections) (2003) PERB Decision No. 1559-S is hereby DENIED.
Members Baker and Neima joined in this Decision.