California Nurses Association (Rosa) (PERB 2182MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LINA ROSA,
Charging Party,
V.
CALIFORNIA NURSES ASSOCIATION,
Respondent.
Case No. SF-CO-232-M
Request for Reconsideration
PERB Decision No. 2182-M
PERB Decision No. 2182a-M
August 29, 2011
Appearances: Lina Rosa, on her own behalf; Donald
W.
Nielsen, Attorney, for California
Nurses Association.
Before Martinez, Chair;
~,,1cKeag
and Dovvdin Calvillo, ~Aembers.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on a request for reconsideration by Lina Rosa (Rosa)
of
the Board's
decision in California Nurses Association (Rosa) (2011) PERB Decision No. 2182-M. In that
decision, the Board affirmed the dismissal
of
a charge that alleged the California Nurses
Association (CNA) breached its duty
of
fair representation toward Rosa under the Meyers-
Milias-Brown Act (MMBA)1 by failing to adequately represent Rosa in matters concerning her
employment while she was employed by the Washington Hospital Healthcare System
(Hospital). The Board adopted the Board agent's determination that the charge failed to state a
prima facie violation of the duty of fair representation.
The Board has reviewed Rosa's request for reconsideration and supporting
documentation, and CNA's response thereto, in light of the relevant law. Based on this review,
the Board denies Rosa's request for reconsideration for the reasons discussed below.
1 The MMBA is codified at Government Code section 3500 et seq.

DISCUSSION
Requests for reconsideration of a final Board decision are governed by PERB
Regulation 32410(a),2 which states in full:
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
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
J.."e"""<';,--1,,.r,,rl•	VV.ll.0.1.U\.I vu, and (5) 1'mpa"+s	'-'L ,..,,.	VJ.. U...lLVJ_.:J	ol+t>rc +1-.e	L.l.l de";c1'on	VJ..U 	of'the	.1_
previously decided case.
Because reconsideration may only be granted under "extraordinary circumstances," the
Board applies the regulation's criteria strictly. (Regents of the University of California (2000)
PERB Decision No. 1354a-H.)
Most of Rosa's request for reconsideration restates arguments she made before the
Board agent and before the Board on appeal. As the Board stated in Chula Vista Elementary
School District (2004) PERB Decision No. 1557a, "a request for reconsideration is not simply
an opportunity to ask the Board to 'try again."' Accordingly, PERB Regulation 32410(a) does
not allow a party to reargue or relitigate issues which have already been decided. (Redwoods
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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Community College District (1994) PERB Decision No. 1047a.) Thus, we find no basis for
granting reconsideration.
The request for reconsideration also seeks to have the Board consider additional evidence
which, Rosa asserts, was difficult for her to provide previously due to her medical condition.
The PERB regulation cited above requires that a request for reconsideration based upon the
discovery of new evidence be supported by a declaration under penalty of perjury establishing
that the proffered evidence meets five specific criteria. A review of the record indicates that
Rosa did not file the required declaration in support of her request for reconsideration, as
required by PERB Regulation 32410.
In addition, the five criteria specified in PERB Regulation 32410(a) cannot be met under
the facts of this case. The evidence consists of email correspondence between CNA and Rosa
and between the Hospital and Rosa, doctor's notes releasing Rosa from work, payroll data, and
a newspaper article. In support of her request, Rosa provides a letter from a physician dated
June 9, 2011 stating that her medical condition has been exacerbated in the last few months. She
fails, however, to explain how her medical condition prevented her from providing the
information previously to either the Board agent or the Board itself. Thus, the request fails to
establish that the evidence constitutes newly discovered evidence that was not previously
available and could not have been discovered with the exercise of reasonable diligence under
PERB Regulation 32410(a). Moreover, even ifwe were to consider this evidence, it does not
demonstrate that the Board's decision contains prejudicial errors of fact. (Ibid.)
For the above reasons, Rosa's request for reconsideration must be denied because
it fails to establish either of the grounds for reconsideration set forth in PERB
Regulation 32410(a).
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ORDER
Lina Rosa's request for reconsideration of the Public Employment Relations Board's
decision in California Nurses Association (Rosa) (2011) PERB Decision No. 2182-M is hereby
DENIED.
Chair Martinez and Member McKeag joined in this Decision.
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