State of California (Department of Corrections and Rehabilitation) (PERB 2136SA)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
PATRICIA L. WOODS,	PATRICIA L. WOODS,
Charging Party,	Charging Party,
V .	V.
STATE OF	STATE OF CALIFORNIA (DEPARTMENT	CALIFORNIA (DEPARTMENTOF	OF
CORRECTIONS	CORRECTIONS & REHABILITATION),	& REHABILITATION),
Respondent.
Case No. SA-CE-1640-S	Case No. SA-CE-1640-S
Request for Reconsideration	Request for Reconsideration
PERB Decision No. 2136-S	PERB Decision No. 2136-S
PERB Decision No. 2136a-S	PERB Decision No. 2136a-S
January 27, 2011	January 27, 2011	Respondent.
Patricia L. Woods, on her own behalf; State of California (Department of	Patricia L. Woods, on her own behalf; State of California (Department of
Personnel	Personnel Administration) by Kevin A. Geckeler, Labor Relations Counsel, for State of	Administration) by Kevin A. Geckeler, Labor Relations Counsel, for State of
California (Department of Corrections	California (Department of Corrections & Rehabilitation).	& Rehabilitation).
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.	Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION	DECISION
DOWDIN CALVILLO, Chair: This case is before the Public Employment Relations	DOWDIN CALVILLO, Chair: 	This case is before the Public Employment Relations
Board (PERB or Board) on a request for reconsideration by Patricia L. Woods (Woods) of the	Board (PERB or Board) on a request for reconsideration by Patricia L. Woods (Woods) of the
Board's decision in State of California (Department of Corrections & Rehabilitation) (2010)Board's decision in State of California (Department of Corrections & Rehabilitation) (2010)
PERB Decision No. 2136-S. In that decision, the Board affirmed an administrative law	PERB Decision No. 2136-S. In that decision, the Board affirmed an administrative law
judge's (ALJ) dismissal of a complaint which alleged that the State of California (Department	judge's (ALJ) dismissal of a complaint which alleged that the State of California (Department
of Corrections & Rehabilitation) (State or CDCR) rejected Woods on probation because she	of Corrections & Rehabilitation) (State or CDCR) rejected Woods on probation because she
sought and received assistance from her union, SEIU Local 1000 (SEIU), regarding numerous	sought and received assistance from her union, SEIU Local 1000 (SEIU), regarding numerous
workplace issues.	workplace issues.
The Board has reviewed Woods' request for reconsideration and supporting	The Board has reviewed Woods' request for reconsideration and supporting
documentation, and CDCR's response thereto, in light of the relevant law. Based on this	documentation, and CDCR's response thereto, in light of the relevant law. Based on this
review, the Board denies Woods' request for reconsideration for the reasons discussed below.	review, the Board denies Woods' request for reconsideration for the reasons discussed below.
Appearances:	Appearances:

DISCUSSION	DISCUSSION
Requests for reconsideration of a final Board decision are governed by PERB Regulation	Requests for reconsideration of a final Board decision are governed by PERB Regulation
32410(a), which states in full:	3241 0(a), 1 which states in full:
Any party to a decision of the Board itself may, because of	Any party to a decision of the Board itself may, because of
extraordinary circumstances, file a request to reconsider the	extraordinary circumstances, file a request to reconsider the
decision within 20 days following the date of service of the	decision within 20 days following the date of service of the
decision.	decision. An original and five copies of the request for	An original and five copies of the request for
reconsideration shall be filed with the Board itself in the	reconsideration shall be filed with the Board itself in the
headquarters office and shall state with specificity the grounds	headquarters office and shall state with specificity the grounds
claimed and, where applicable, shall specify the page of the	claimed and, where applicable, shall specify the page of the
record relied on. Service and proof of service of the request	record relied on. Service and proof of service of the request
pursuant to Section 32140 are required. The grounds for	pursuant to Section 32140 are required. The grounds for
requesting reconsideration are limited to claims that: (1) the	requesting reconsideration are limited to claims that: 	(1) the
decision of the Board itself contains prejudicial errors of fact, or	decision of the Board itself contains prejudicial errors of fact, or
(2) the party has newly discovered evidence which was not	(2) the party has newly discovered evidence which was not
previously available and could not have been discovered with the	previously available and could not have been discovered with the
exercise of reasonable diligence. A request for reconsideration	exercise of reasonable diligence. A request for reconsideration
based upon the discovery of new evidence must be supported by a	based upon the discovery of new evidence must be supported by a
declaration under the penalty of perjury which establishes that the	declaration under the penalty of perjury which establishes that the
evidence: (1) was not previously available; (2) could not have	evidence: (1) was not previously available; (2) could not have
been discovered prior to the hearing with the exercise of	been discovered prior to the hearing with the exercise of
reasonable diligence; (3) was submitted within a reasonable time	reasonable diligence; (3) was submitted within a reasonable time
of its discovery; (4) is relevant to the issues sought to be	of its discovery; ( 4) is relevant to the issues sought to be
reconsidered; and (5) impacts or alters the decision of the	reconsidered; and (5) impacts or alters the decision of the
previously decided case.	previously decided case.
2
Because reconsideration may only be granted under "extraordinary circumstances," the	Because reconsideration may only be granted under "extraordinary circumstances," the
Board applies the regulation's criteria strictly. (Regents of the University of California (2000)	Board applies the regulation's criteria strictly. (Regents of the University of California (2000)
PERB Decision No. 1354a-H.)	PERB Decision No. 1354a-H.)
Most of Woods' request for reconsideration restates arguments she made before the	Most of Woods' request for reconsideration restates arguments she made before the
ALJ and before the Board on appeal. As the Board stated in Chula Vista Elementary School	ALJ and before the Board on appeal. As the Board stated in Chula Vista Elementary School
District	District (2004) PERB Decision No. 1557a, "a request for reconsideration is not simply an	(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	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	allow a party "to reargue or relitigate issues which have already been decided." (Redwoods
1
PERB regulations are codified at California Code of Regulations, title 8, section	PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.	31001 et seq.
2

Community College District (1994) PERB Decision No. 1047a.) We thus find no basis for	Community College District (1994) PERB Decision No. 1047a.) We thus find no basis for
granting reconsideration in these sections of Woods' request.	granting reconsideration in these sections of Woods' request.
Woods also claims that the Board's decision contains a prejudicial error of fact because it	Woods also claims that the Board's decision contains a prejudicial error of fact because it
applies PERB' s "own case law standard of inquiry" to determine whether CDCR departed from	applies PERB's "own case law standard of inquiry" to determine whether CDCR departed from
its established procedures and standards in rejecting her on probation. She asserts that this	its established procedures and standards in rejecting her on probation. She asserts that this
determination is instead governed by the memorandum of understanding between SEIU and the	determination is instead governed by the memorandum of understanding between SEIU and the
State. Woods' argument does not raise a factual error but merely states her disagreement with	State. Woods' argument does not raise a factual error but merely states her disagreement with
the legal standard applied by PERB. Moreover, even if PERB's application of its own case law	the legal standard applied by PERB. Moreover, even if PERB's application of its own case law
constituted a prejudicial error of law, it would not be a ground for reconsideration. (California	constituted a prejudicial error of law, it would not be a ground for reconsideration. (California
State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479a-S.)	State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479a-S.)
Along with her request for reconsideration, Woods submitted a declaration claiming	Along with her request for reconsideration, Woods submitted a declaration claiming
that three attached exhibits constitute "newly discovered evidence" that justify reversal of the	that three attached exhibits constitute "newly discovered evidence" that justify reversal of the
Board's decision. In order to constitute "newly discovered evidence" under PERB Regulation	Board's decision. In order to constitute "newly discovered evidence" under PERB Regulation
32410(a), Woods must show that the documents "could not have been discovered prior to the	32410(a), Woods must show that the documents "could not have been discovered prior to the
hearing with the exercise of reasonable diligence."	hearing with the exercise of reasonable diligence."
Two of the documents clearly fail to meet this standard. Exhibit B to Woods'	Two of the documents clearly fail to meet this standard. Exhibit B to Woods'
declaration is a copy of the California Code of Judicial Ethics, submitted in support of her	declaration is a copy of the California Code of Judicial Ethics, submitted in support of her
argument that the ALJ in this case violated Canons 2(A) and (B) of the Code.2 Although	lthough
Woods'	Woods' declaration asserts that these are "newly passed state laws," the California Supreme	declaration asserts that these are "newly passed state laws," the California Supreme
Court	Court adopted the Code of Judicial Ethics effective January 15, 1996. (Broadman v.	adopted the Code of Judicial Ethics effective January 15, 1996. (Broadman v.
Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1097, fn. 5.) Canon 2(A) has	Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1097, fn. 5.) Canon 2(A) has
remained unchanged since then, while Canon 2(B) was last amended effective January 1, 2008.	remained unchanged since then, while Canon 2(B) was last amended effective January 1, 2008.
Thus,	Thus, both canons existed in their current form when Woods filed her exceptions raising	both canons existed in their current form when Woods filed her exceptions raising
.	argument that the ALJ in this case violated Canons 2(A) and (B) of the Code A
Pursuant to Government Code section	Pursuant to Government Code section11475.20	11475.20,	, the Code of Judicial Ethics applies to	the Code of Judicial Ethics applies to
administrative law judges.	administrative law judges.
33

allegations of misconduct by the ALJ. That her research failed to discover the Code until after	allegations of misconduct by the ALJ. That her research failed to discover the Code until after
the Board issued its decision does not make the Code "newly discovered evidence" under	the Board issued its decision does not make the Code "newly discovered evidence" under
PERB Regulation 32410(a).	PERB Regulation 32410(a).
The same is true of Exhibit C to Woods' declaration, a copy of the California	The same is true of Exhibit C to Woods' declaration, a copy of the California
Department of Personnel Administration's Orientation for the State Employee handbook. The	Department of Personnel Administration's Orientation for the State Employee handbook. 	The
cover page of the handbook is dated December 2006, well before the hearing in this matter was	cover page of the handbook is dated December 2006, well before the hearing in this matter was
held in May and October 2008. Woods does not explain why she could not have discovered	held in May and October 2008. Woods does not explain why she could not have discovered
this handbook through the exercise of reasonable diligence prior to the hearing. Consequently,	this handbook through the exercise of reasonable diligence prior to the hearing. Consequently,
this document does not constitute "newly discovered evidence."	this document does not constitute "newly discovered evidence."
Woods' final exhibit is a letter from the Board's Appeals Assistant to Woods dated	Woods' final exhibit is a letter from the Board's Appeals Assistant to Woods dated
February 2, 2010. The letter states that the Board is returning Exhibit A to Woods' exceptions	February 2, 2010. The letter states that the Board is returning Exhibit A to Woods' exceptions
unopened, along with an envelope containing an exhibit submitted by Woods under seal to the	unopened, along with an envelope containing an exhibit submitted by Woods under seal to the
ALJ and apparently opened by the ALJ before the matter was submitted for decision.	ALJ and apparently opened by the ALJ before the matter was submitted for decision.
Obviously the Appeals Assistant's letter did not exist before the hearing in this matter.	Obviously the Appeals Assistant's letter did not exist before the hearing in this matter.
However, despite Woods' speculative claims to the contrary, there is no evidence in the record	However, despite Woods' speculative claims to the contrary, there is no evidence in the record
that the ALJ relied on the returned exhibit in reaching her decision. Thus, because the letter	that the ALJ relied on the returned exhibit in reaching her decision. Thus, because the letter
does not "impact[] or alter[] the decision of the previously decided case," it cannot serve as a	does not "impact[] or alter[] the decision of the previously decided case," it cannot serve as a
basis for granting reconsideration.	basis for granting reconsideration.
For the above reasons, Woods' request for reconsideration must be denied because it	For the above reasons, Woods' request for reconsideration must be denied because it
fails to establish either of the grounds for reconsideration set forth in PERB Regulation	fails to establish either of the grounds for reconsideration set forth in PERB Regulation
32410(a).	32410(a).
44

ORDER	ORDER
Patricia L. Woods' request for reconsideration of the Public Employment Relations	Patricia L. Woods_' request for reconsideration of the Public Employment Relations
Board's decision in State of California (Department of Corrections & Rehabilitation) (2010)	Board's decision in State of California (Department of Corrections & Rehabilitation) (2010)
PERB Decision No. 2136-S is hereby DENIED.	PERB Decision No. 2136-S is hereby DENIED.
Members McKeag and Wesley joined in this Decision.	Members McKeag and Wesley joined in this Decision.
5