Office and Professional Employees International Union, Local 39, AFL-CIO and Central Labor Councils (Fowles) (PERB 2236MA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LAURA FOWLES,
Charging Party,
V.
OFFICE & PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 29,
AFL-CIO & CLC
Respondent.
Case No. SF-CO-229-M
Request for Reconsideration
PERB Decision No. 2236-M
PERB Decision No. 2236a-M
April 25, 2012
Appearances: National Right to Work Legal Defense Foundation, Inc., by W. James Young,
Attorney, for Laura Fowles; Beeson, Tayer & Bodine by Andrew H. Baker, Attorney, for
Office & Professional Employees International Union, Local 29, AFL-CIO & CLC.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on a request for reconsideration by the Office & Professional
Employees International Union, Local 29, AFL-CIO & CLC (OPEIU)
of
the Board's decision
in Office
of
Professional Employees International Union, Local
29,
AFL-CIO & CLC (Fowles)
(2012) PERB Decision No. 2236-M. The underlying charge alleged that OPEIU violated the
Meyers-Milias-Brown Act (MMBA)1 and 	Regulation 32992nd PERB Regulation 3299 2 by failing to inform
Laura Fowles (Fowles)
of
her right not to become a member
of
OPEIU, failing to provide
notice
of
her rights as an agency 	payer, and by affirmatively misrepresenting to Fowles thatfee
full union membership was required as a condition
of
employment. Initially, a Board agent
1 The MMBA is codified at Government Code section 3500 et seq.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
LAURA FOWLES,
Charging Party, 	Case No. SF-CO-229-M
Request for Reconsideration
PERB Decision No. 2236-M
PERB Decision No. 2236a-M	OFFICE & PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 29, April 25, 2012	AFL-CIO & CLC
Respondent.
Appearances: National Right to Work Legal Defense Foundation, Inc., by W. James Young,
Attorney, for Laura Fowles; Beeson, Tayer & Bodine by Andrew H. Baker, Attorney, for
Office & Professional Employees International Union, Local 29, AFL-CIO & CLC.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on a request for reconsideration by the Office & Professional
Employees International Union, Local 29, AFL-CIO & CLC (OPEIU) of the Board's decision
in Office of Professional Employees International Union, Local 29, AFL-CIO & CLC (Fowles)
(2012) PERB Decision No. 2236-M. The underlying charge alleged that OPEIU violated the
Meyers-Milias-Brown Act (MMBA)' a 	2 by failing to inform
Laura Fowles (Fowles) of her right not to become a member of OPEIU, failing to provide
notice of her rights as an agency 	payer, and by affirmatively misrepresenting to Fowles that
full union membership was required as a condition of employment. Initially, a Board agent
The MMBA is codified at Government Code section 3500 et seq.
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

dismissed the charge, finding that it failed to state a prima facie violation of the MMBA or
PERB regulations. On February 7, 2012, the Board issued its decision reversing the dismissal
of the charge and remanding it to the Office of the General Counsel for issuance of a complaint
in order to develop a full record upon which it may be determined whether OPEIU complied
with its obligations under the MMBA, PERB Regulation 32992, and the standards set forth in
Chicago Teachers Union v. Hudson (1986) 475 U.S. 292 (Hudson) andAboodv. Detroit Bd. of
Education (1977) 431 U.S. 209 (Abood).
OPEIU requests reconsideration on the following grounds: (1) it did not receive either
the appeal filed by Fowl es or the letter from the Appeals Assistant notifying the parties that the
appeal filings were complete, but first learned of the existence of the appeal upon receipt of the
Board's February 7, 2012 decision; and (2) the charge was properly dismissed because the
evidence presented established that Fowles received adequate notice of her right to be a non
member of OPEIU and pay a reduced amount. Fowles opposes the request for reconsideration
on the basis that the request fails to set forth proper grounds for reconsideration pursuant to
PERB Regulation 32410.
The Board has reviewed OPEIU' s request for reconsideration and supporting
documentation, and Fowles's response thereto, in light of the relevant law. Based on this
review, the Board denies OPEIU's request for reconsideration for the reasons discussed below.
DISCUSSION
2
DISCUSSION
Under PERB Regulation 32410(a), the grounds for requesting reconsideration of a final
Board decision are limited to claims that: "( l) 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." Because reconsideration may only be granted under "extraordinary circumstances,"
dismissed the charge, finding that it failed to state a prima facie violation of the MMBA or
PERB regulations. On February 7, 2012, the Board issued its decision reversing the dismissal
of the charge and remanding it to the Office of the General Counsel for issuance of a complaint
in order to develop a full record upon which it may be determined whether OPEIU complied
with its obligations under the MMBA, PERB Regulation 32992, and the standards set forth in
Chicago Teachers Union v. Hudson (1986) 475 U.S. 292 (Hudson) and Abood v. Detroit Bd. of
Education (1977) 431 U.S. 209 (Abood).
OPEIU requests reconsideration on the following grounds: (1) it did not receive either
the appeal filed by Fowles or the letter from the Appeals Assistant notifying the parties that the
appeal filings were complete, but first learned of the existence of the appeal upon receipt of the
Board's February 7, 2012 decision; and (2) the charge was properly dismissed because the
evidence presented established that Fowles received adequate notice of her right to be a non-
member of OPEIU and pay a reduced amount. Fowles opposes the request for reconsideration
on the basis that the request fails to set forth proper grounds for reconsideration pursuant to
PERB Regulation 32410.
The Board has reviewed OPEIU's request for reconsideration and supporting
documentation, and Fowles's response thereto, in light of the relevant law. Based on this
review, the Board denies OPEIU's request for reconsideration for the reasons discussed below.
Under PERB Regulation 32410(a), the grounds for requesting reconsideration of a final
Board decision 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." Because reconsideration may only be granted under "extraordinary circumstances,"
2

the Board applies the regulation's criteria 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 (Chula Vista).) 	Accordingly, PERB Regulation 32410(a) does not
allow a party to reargue or relitigate issues which have already been decided. (Chula Vista;
San Bernardino Teachers Association, CTAINEA (Cooksey) (2000) PERB Decision No. 1387.)
OPEIU's request for reconsideration fails to provide grounds for reconsideration under
Regulation 32410(a). OPEIU argues that the charge was properly dismissed by the Board
agent because a January
8,
2010 '"Welcome' letter" provided by OPEIU in its position
statement "clearly apprised Fowles
of
her legal right to be a non-member and her legal right, as
a non-member, to pay fees that did not include fees for expenses not germane to collective
bargaining; that is, her right to pay
'a
reduced amount."' As indicated by the Board in its prior
decision, Fowles's allegations raised both a disputed factual issue
of
whether she received
notice
of
her rights as an agency fee payer, including the document relied on by OPEIU, as
well as the legal issue
of
whether the materials she did receive adequately apprised her
of
her
rights, thereby stating a prima facie violation
of
the MMBA and PERB Regulation 32992.
Thus, OPEIU's argument merely reasserts the legal argument considered previously by the
Board and does not establish a prejudicial error
of
fact upon which reconsideration may be
granted. 3 (Redwoods Community College District (1994) PERB Decision No. 1047a
has denied requests for reconsideration which merely repeat legal arguments already offered,
or which argue that the Board decision contains errors of law. 	.) Instead, it simply expresses
disagreement with the Board's legal determination that the allegations
of
the charge were
OPEIU does not assert that reconsideration should be granted based upon the
discovery of new evidence that was not previously available and could not have been
discovered with the exercise of reasonable diligence. 	(PERB Reg. 32410(a)(2).)
3
the Board applies the regulation's criteria 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 (Chula Vista).) Accordingly, PERB Regulation 32410(a) does not
allow a party to reargue or relitigate issues which have already been decided. (Chula Vista;
San Bernardino Teachers Association, CTA/NEA (Cooksey) (2000) PERB Decision No. 1387.)
OPEIU's request for reconsideration fails to provide grounds for reconsideration under
Regulation 32410(a). OPEIU argues that the charge was properly dismissed by the Board
agent because a January 8, 2010 ""Welcome' letter" provided by OPEIU in its position
statement "clearly apprised Fowles of her legal right to be a non-member and her legal right, as
a non-member, to pay fees that did not include fees for expenses not germane to collective
bargaining; that is, her right to pay 'a reduced amount." As indicated by the Board in its prior
decision, Fowles's allegations raised both a disputed factual issue of whether she received
notice of her rights as an agency fee payer, including the document relied on by OPEIU, as
well as the legal issue of whether the materials she did receive adequately apprised her of her
rights, thereby stating a prima facie violation of the MMBA and PERB Regulation 32992.
Thus, OPEIU's argument merely reasserts the legal argument considered previously by the
Board and does not establish a prejudicial error of fact upon which reconsideration may be
granted." (Redwoods Community College District (1994) PERB Decision No. 1047a ["PERB
has denied requests for reconsideration which merely repeat legal arguments already offered,
or which argue that the Board decision contains errors of law."].) Instead, it simply expresses
disagreement with the Board's legal determination that the allegations of the charge were
OPEIU does not assert that reconsideration should be granted based upon the
discovery of new evidence that was not previously available and could not have been
discovered with the exercise of reasonable diligence. (PERB Reg. 32410(a)(2).)
3

sufficient to state a prima facie case and to warrant issuance
of
a complaint in order to develop
a full record upon which it may be determined whether OPEIU complied with its obligations
under the MMBA, PERB Regulation 32992, and the standards set forth in Hudson and Abood.
Accordingly, we find no basis for granting reconsideration.4
ORDER
The request
of
the Office & Professional Employees International Union, Local 29,
AFL-CIO & CLC for reconsideration
of
the Public Employment Relations Board's decision in
Office
of
Professional Employees International Union, Local
29,
AFL-CIO & CLC (Fowles)
(2012) PERB Decision No. 2236-M is hereby DENIED.
Chair Martinez and Member Huguenin joined in this Decision.
Given our conclusion that the charge states a prima facie case sufficient to
warrant issuance of a complaint and that no grounds for reconsideration under PERB
Regulation 3241 0(a) have been established, we do not address OPEIU's additional claims.
4
sufficient to state a prima facie case and to warrant issuance of a complaint in order to develop
a full record upon which it may be determined whether OPEIU complied with its obligations
under the MMBA, PERB Regulation 32992, and the standards set forth in Hudson and Abood.
Accordingly, we find no basis for granting reconsideration."
ORDER
The request of the Office & Professional Employees International Union, Local 29,
AFL-CIO & CLC for reconsideration of the Public Employment Relations Board's decision in
Office of Professional Employees International Union, Local 29, AFL-CIO & CLC (Fowles)
(2012) PERB Decision No. 2236-M is hereby DENIED.
Chair Martinez and Member Huguenin joined in this Decision.
*Given our conclusion that the charge states a prima facie case sufficient to
warrant issuance of a complaint and that no grounds for reconsideration under PERB
Regulation 32410(a) have been established, we do not address OPEIU's additional claims.