State of California (Department of Mental Health, Department of Developmental Services) (PERB 2305SA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JENNIFER XU,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
MENTAL HEALTH, DEPARTMENT OF
DEVELOPMENTAL SERVICES),
Respondent.
Case No. SA-CE-1937-S
Request for Reconsideration
PERB Decision No. 2305-S
PERB Decision No. 2305a-S
March 8, 2013
Appearances: Jennifer Xu, on her own behalf; California Department of Human Resources by
Barrett W. Mclnerney, Labor Relations Counsel, for State of California (Department of Mental
Health, Department of Developmental Services).
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration by Jennifer Xu (Xu) of the Board's decision
in State of California (Department of Mental Health, Department of Developmental Services)
(2012) PERB Decision No. 2305-S. In that decision, the Board affirmed the dismissal of the
unfair practice charge by the Office of the General Counsel for failure to state a prima facie
violation of the Ralph C. Dills Act (Dills Act). 1 Xu filed a timely request for reconsideration.
The State of California (Department of Mental Health, Department of Developmental Services)
(State) filed a timely response. 2
1 The Dills Act is codified at Government Code section 3 512 et seq.
2 On February 15, 2013, Xu filed an 11-page document entitled "PETITION FOR
RECONSIDERATION OF CLARIFICATION OF THE RESPONDENTS' REPLY DA TED
ON FEB 11 TH, 2013." PERB Regulations do not provide for the filing of a reply to a
response to a request for reconsideration. (See PERB Reg. 32410.) Accordingly, the Board
has not considered this document.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JENNIFER XU,
Charging Party, 	Case No. SA-CE-1937-S
v . 	Request for Reconsideration
PERB Decision No. 2305-S
STATE OF CALIFORNIA (DEPARTMENT OF PERB Decision No. 2305a-S	MENTAL HEALTH, DEPARTMENT OF
DEVELOPMENTAL SERVICES),
March 8, 2013
Respondent.
Appearances: Jennifer Xu, on her own behalf; California Department of Human Resources by
Barrett W. McInerney, Labor Relations Counsel, for State of California (Department of Mental
Health, Department of Developmental Services).
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on a request for reconsideration by Jennifer Xu (Xu) of the Board's decision
in State of California (Department of Mental Health, Department of Developmental Services)
(2012) PERB Decision No. 2305-S. In that decision, the Board affirmed the dismissal of the
unfair practice charge by the Office of the General Counsel for failure to state a prima facie
violation of the Ralph C. Dills Act (Dills Act).' Xu filed a timely request for reconsideration.
The State of California (Department of Mental Health, Department of Developmental Services)
(State) filed a timely response.
The Dills Act is codified at Government Code section 3512 et seq.
2 On February 15, 2013, Xu filed an 1 1-page document entitled "PETITION FOR
RECONSIDERATION OF CLARIFICATION OF THE RESPONDENTS' REPLY DATED
ON FEB 11TH, 2013." PERB Regulations do not provide for the filing of a reply to a
response to a request for reconsideration. (See PERB Reg. 32410.) Accordingly, the Board
has not considered this document.

The Board has reviewed
Xu's
request for reconsideration and supporting
documentation, and the State's response thereto. Based on this review, the Board denies
Xu's
request for reconsideration for the reasons discussed below.
DISCUSSION
Requests for reconsideration
of
a final Board decision are governed by PERB
Regulation 3241 0(a),3 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
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 in reviewing requests for reconsideration.
(Regents
of
the University
of
California (2000) PERB Decision No. 1354a-H.) Reiterating the
same facts and arguments made on appeal does not satisfy the requirements of PERB
3 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2
The Board has reviewed Xu's request for reconsideration and supporting
documentation, and the State's response thereto. Based on this review, the Board denies Xu'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), 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
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 in reviewing requests for reconsideration.
(Regents of the University of California (2000) PERB Decision No. 1354a-H.) Reiterating the
same facts and arguments made on appeal does not satisfy the requirements of PERB
' PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

Regulation 32410(a). (San Leandro Unified School District (2007) PERB Decision No. 1924a;
Oakland Unified School District (2004) PERB Decision No. 1645a.) Purported errors of law
are not grounds for reconsideration. (California State Employees Association (Hard, et al.)
(2002) PERB Decision No. 1479a-S.)
Xu's request for reconsideration is comprised of a two-page letter, "A Statement of
Exception (A Brief)," followed by Exhibit X (the underlying decision of the Board itself);
Exhibit 1 (copy of letter from counsel for State to PERB Board agent dated December 3, 2012,
requesting permission to file a late response to the appeal and Xu's response thereto); Exhibit 2
(copy of letter from Xu to the Appeals Assistant dated October 28, 2012, requesting review of
the dismissal by the Board itself);4 Exhibit 4 (copy of letter from Xu to PERB dated
January 10, 2013, asserting deficiencies in the underlying decision of the Board itself); and
Exhibit 5 (copy of letter from Xu to counsel for State dated November 6, 2012, documenting
counsel's lack of cooperation in Xu's requests for information).
Considered in its totality, Xu's request for reconsideration restates much of what has
already been stated and argued below. 	She contends that even employees without paid sick
leave are still entitled to take a leave of absence. 	She asserts as prejudicial error of fact that the
attorney for the State and a counselor for the Department of Fair Employment and Housing
attempted a settlement to '"erase' the AWOL." She appears to assert that the Board did not
address her many concerns about the circumstances of her termination and the various legal
matters that ensued. As stated in the underlying decision of the Board itself, it is Xu's burden
to allege facts sufficient to constitute an unfair practice under the Dills Act. 	The allegations of
the charge do not relate to any conduct that is within PERB' s jurisdiction.
There was no Exhibit 3.
3
Regulation 32410(a). (San Leandro Unified School District (2007) PERB Decision No. 1924a;
Oakland Unified School District (2004) PERB Decision No. 1645a.) Purported errors of law
are not grounds for reconsideration. (California State Employees Association (Hard, et al.)
(2002) PERB Decision No. 1479a-S.)
Xu's request for reconsideration is comprised of a two-page letter, "A Statement of
Exception (A Brief)," followed by Exhibit X (the underlying decision of the Board itself);
Exhibit 1 (copy of letter from counsel for State to PERB Board agent dated December 3, 2012,
requesting permission to file a late response to the appeal and Xu's response thereto); Exhibit 2
(copy of letter from Xu to the Appeals Assistant dated October 28, 2012, requesting review of
the dismissal by the Board itself);* Exhibit 4 (copy of letter from Xu to PERB dated
January 10, 2013, asserting deficiencies in the underlying decision of the Board itself); and
Exhibit 5 (copy of letter from Xu to counsel for State dated November 6, 2012, documenting
counsel's lack of cooperation in Xu's requests for information).
Considered in its totality, Xu's request for reconsideration restates much of what has
already been stated and argued below. She contends that even employees without paid sick
leave are still entitled to take a leave of absence. She asserts as prejudicial error of fact that the
attorney for the State and a counselor for the Department of Fair Employment and Housing
attempted a settlement to "erase' the AWOL." She appears to assert that the Board did not
address her many concerns about the circumstances of her termination and the various legal
matters that ensued. As stated in the underlying decision of the Board itself, it is Xu's burden
to allege facts sufficient to constitute an unfair practice under the Dills Act. The allegations of
the charge do not relate to any conduct that is within PERB's jurisdiction.
* There was no Exhibit 3.

Having reviewed the record in light of the request for reconsideration, the Board
concludes that Xu's request for reconsideration fails to establish a ground for requesting
reconsideration as set forth in PERB Regulation 32410( a). Xu does not cite to anything in the
decision of the Board itself containing a prejudicial error of fact. 5 Nor does Xu cite to any
newly discovered evidence in support of her request for reconsideration. Accordingly, the
Board denies the request for reconsideration. 6
5 Footnote 5 of the Board's decision states, "Xu was separated from employment with
the State at or around the end of 2007." Xu takes issue with this characterization of the factual
aiiegations, asserting that "the truthis while Jennifer Xu was on sick leave until Feb.8 th 2008,
[the Porterville Developmental Center] 'terminated' Jennifer Xu as 'AWOL."' The Board
acknowledges that "separation" is a term of art in employment law. (See Mooney v. County of
Orange (2013) 212 Cal.App.4 th 865.) For purposes of evaluating Xu's unfair practice charge, the
Board accepts Xu's characterization that she was terminated. This characterization, however, has
no bearing on the legal issues and therefore does not constitute a prejudicial error of fact for
reconsideration purposes. Nor is such characterization legally binding in any other forum.
6 Xu requests oral argument. Under the pertinent regulation, requests for oral argument
may be considered in connection with exceptions to a proposed decision. (See PERB
Reg. 32315.) This matter is before the Board on a request for reconsideration of the Board's
decision affirming the dismissal of Xu' s unfair practice charge, not on exceptions to a proposed
decision. (United Teachers - Los Angeles (Moszkowski) (1992) PERB Decision No. 946a [on a
request for reconsideration of a Board decision affirming the dismissal of an unfair practice
charge, the Board held that PERB Reg. 32315 does not provide for oral argument on review of
dismissals].)
Xu requests the production of witnesses pursuant to PERB Regulation 32162. This
regulation prohibits the Board from disclosing confidential statements submitted by a party
unless agreed to by the party or required by one of four stated bases. The confidentiality of
Board investigations is not an issue presented by the facts of the case, and therefore will not be
considered further. 	·
Xu requests the production of witness statements pursuant to PERB Regulation 32206.
This regulation requires that after direct examination of a witness upon motion of any party a
hearing officer shall order the production of any statement made by a witness to a Board agent
relating to the subject matter of the testimony. This case did not go to formal hearing. 	The
relevance of this regulation is unexplained.
Xu requests disqualification of the Board agent and Board members who made the
decision pursuant to PERB Regulation 32155. All parties are entitled to a fair and impartial
process. While Xu believes the dismissal to be unfair, she has not stated any basis for
disqualification, let alone a valid one under the regulation.
4
Having reviewed the record in light of the request for reconsideration, the Board
concludes that Xu's request for reconsideration fails to establish a ground for requesting
reconsideration as set forth in PERB Regulation 32410(a). Xu does not cite to anything in the
decision of the Board itself containing a prejudicial error of fact. Nor does Xu cite to any
newly discovered evidence in support of her request for reconsideration. Accordingly, the
Board denies the request for reconsideration."
Footnote 5 of the Board's decision states, "Xu was separated from employment with
the State at or around the end of 2007." Xu takes issue with this characterization of the factual
allegations, asserting that "the truth is while Jennifer Xu was on sick leave until Feb.8" 2008,
[the Porterville Developmental Center] 'terminated' Jennifer Xu as 'AWOL." The Board
acknowledges that "separation" is a term of art in employment law. (See Mooney v. County of
Orange (2013) 212 Cal.App.4" 865.) For purposes of evaluating Xu's unfair practice charge, the
Board accepts Xu's characterization that she was terminated. This characterization, however, has
no bearing on the legal issues and therefore does not constitute a prejudicial error of fact for
reconsideration purposes. Nor is such characterization legally binding in any other forum.
"Xu requests oral argument. Under the pertinent regulation, requests for oral argument
may be considered in connection with exceptions to a proposed decision. (See PERB
Reg. 32315.) This matter is before the Board on a request for reconsideration of the Board's
decision affirming the dismissal of Xu's unfair practice charge, not on exceptions to a proposed
decision. (United Teachers - Los Angeles (Moszkowski) (1992) PERB Decision No. 946a [on a
request for reconsideration of a Board decision affirming the dismissal of an unfair practice
charge, the Board held that PERB Reg. 32315 does not provide for oral argument on review of
dismissals].)
Xu requests the production of witnesses pursuant to PERB Regulation 32162. This
regulation prohibits the Board from disclosing confidential statements submitted by a party
unless agreed to by the party or required by one of four stated bases. The confidentiality of
Board investigations is not an issue presented by the facts of the case, and therefore will not be
considered further.
Xu requests the production of witness statements pursuant to PERB Regulation 32206.
This regulation requires that after direct examination of a witness upon motion of any party a
hearing officer shall order the production of any statement made by a witness to a Board agent
relating to the subject matter of the testimony. This case did not go to formal hearing. The
relevance of this regulation is unexplained.
Xu requests disqualification of the Board agent and Board members who made the
decision pursuant to PERB Regulation 32155. All parties are entitled to a fair and impartial
process. While Xu believes the dismissal to be unfair, she has not stated any basis for
disqualification, let alone a valid one under the regulation.

ORDER
Jennifer Xu's request for reconsideration of the Public Employment Relations Board's
decision in State of California (Department of Mental Health, Department of Developmental
Services) (2012) PERB Decision No. 2305-S is hereby DENIED.
Members Huguenin and Banks joined in this Decision.
5
ORDER
Jennifer Xu's request for reconsideration of the Public Employment Relations Board's
decision in State of California (Department of Mental Health, Department of Developmental
Services) (2012) PERB Decision No. 2305-S is hereby DENIED.
Members Huguenin and Banks joined in this Decision.