Regents of the University of California (PERB 2302HA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JEFFREY ESTES,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA,
Respondent.
Case No. LA-CE-1120-H
Request for Reconsideration
PERB Decision No. 2302-H
PERB Decision No. 2302a-H
March 21, 2013
Appearances: Jeffrey Estes, on his own behalf; Carl
D.
Smith, Labor and Employment
Relations Consultant, for Regents
of
the University
of
California.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration by Jeffrey Estes (Estes)
of
the Board's
decision in Regents
of
the University
of
California (2012) PERB Decision No. 2302-H. 	In that
decision, the Board dismissed the complaint and underlying charge alleging that the Regents
of
the University (University) suspended and terminated Estes's employment in retaliation for
having engaged in protected activity, thereby committing an unfair practice under the Higher
Education Employer-Employee Relations Act (HEERA). 1
In its decision, the Board adopted the determination
of
an administrative law judge
(ALJ) following an evidentiary hearing that Estes failed to establish that the University took
adverse action against him in retaliation for having engaged in protected activity. Estes
requests reconsideration of the ALJ' s determination that the evidence did not establish that the
1 HEERA is codified at Government Code section 3560 et seq.

University "set him up
to
fail" by improperly assigning him additional duties, thereby
establishing unlawful motivation.
The Board has reviewed Estes's request for reconsideration and the University's
response thereto in light
of
the relevant law. Based on this review, the Board denies
Estes's
request for reconsideration for the reasons discussed below.
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 ofreasonable 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.
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.) A request for reconsideration "is not simply an opportunity to
ask the Board to 'try again."' (Chula Vista Elementary School District (2004) PERB Decision
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
2

No. l 557a.) PERB Regulation 3241 0(a) allows a party to request reconsideration
of
a Board
decision only on two grounds: (1) the decision contains "prejudicial errors
of
fact;" or
(2) previously unavailable and undiscoverable newly discovered evidence that is both relevant
and submitted within a reasonable time
of
discovery would impact or alter the decision. 	These
limited grounds preclude a party from using the reconsideration process to reargue or relitigate
issues that have already been decided. (Redwoods Community College District (1994) PERB
Decision No. 1047a.) Simply arguing the same facts that were presented on appeal does not
fulfill the requirements
of
PERB Regulation 32410. (Oakland Unified School District (2004)
PERB Decision No. 1645a.) A disagreement over the legal analysis employed by the Board is
not grounds for reconsideration even
if
it amounts to a prejudicial error
of
law resulting from
application
of
its own case law. (California State Employees Association (Hard, et al.) (2002)
PERB Decision No. 1479a-S.)
The instant request for reconsideration neither identifies prejudicial errors
of
fact, 3 nor
presents newly discovered evidence. Rather, it merely reiterates the arguments previously
Estes takes issue with the Board's characterization
of
Estes' s exceptions in
the Board's decision in Regents
of
the University
of
California, supra, PERB Decision
No. 2302-H. The Board characterized the exceptions in pertinent part as follows:
"Estes's exceptions focus primarily on his claim that the University improperly assigned him
work
....
" Estes argues that the issue before the ALJ was not whether the work was properly
assigned, but rather whether the assignments were punitive in nature and designed in such a
way to set him up for failure. 	Estes's argument is rejected for three primary reasons. 	The
characterization of the exceptions in the Board's decision does not constitute a prejudicial error
of
fact. 	Also, the Board's broad characterization
of
Estes' s claim encompasses the issue more
specifically described by Estes. Last, the ALJ framed the issue in the same way as Estes.
(See Regents
of
the University
of
California, supra, PERB Decision No. 2302-H adopting
ALJ' s proposed decision, p.
21
["Estes' s primary theory to establish an unlawful motive in this
case is that the University assigned him job duties and training goals that no employee
of
his
experience level could accomplish. Essentially, Estes claims they set him up to fail."].) 	The
ALJ more than adequately addressed Estes's "set him up to fail" argument and rejected it. The
Board endorsed the ALJ's analysis in the Board's adoption of the proposed decision. 	The
limited grounds for reconsideration preclude Estes from using the reconsideration process to
reargue or relitigate issues that have already been decided.
3

raised before the Board on exceptions to the ALJ' s proposed decision. Therefore, we find no
basis upon which to grant reconsideration.
ORDER
Jeffrey Estes's request for reconsideration
of
the Public Employment Relations
Board's
decision in Regents
of
the University
of
California (2012) PERB Decision No. 2302-H is
hereby DENIED.
Members Huguenin and Winslow joined in this Decision.
4