Jurupa Unified School District (PERB A417E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 392,
Charging Party,
v.
JURUPA UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5754-E
Administrative Appeal
PERB OrderNo.Ad-417-E
September 24, 2014
Appearances: Janet Cordova, on her own behalf; Fagen, Friedman & Fulfrost by
Christopher D. Keeler, Attorney, for Jurupa Unified School District.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Janet Cordova (Cordova) from the administrative decision by
the PERB Appeals Assistant denying (1) Cordova's request for an extension
of
time to file a
statement
of
exceptions; and (2) Cordova's statement
of
exceptions to the proposed decision
of
a PERB administrative law judge (ALJ). The Appeals Assistant denied Cordova's request for
an extension
of
time and statement
of
exceptions because Cordova is not a party to the case.
For the reasons explained below, we affirm the administrative decision
of
the Appeals
Assistant.
PROCEDURAL HISTORY
On October 16, 2012, the California School Employees Association and its Chapter 392
(CSEA) filed Unfair Practice Charge No. LA-CE-5754-E. On January 2, 2013, PERB's Office
of
the General Counsel issued an unfair practice complaint alleging that the Jurupa Unified
School District (District) took adverse action against Cordova, an employee at the time of the

events underlying the charge, because
of
Cordova' s exercise
of
protected rights in violation
of
the Educational Employment Relations Act (EERA).1 On January 23, 2013, the District filed
an answer to the complaint. An informal settlement conference was held on February 5, 2013,
but the matter was not resolved.
On April 2 and June 5, 2013, CSEA filed motions to amend the complaint seeking to
allege additional adverse acts in retaliation for Cordova's prior protected conduct. On June 11,
2013, the parties were notified that the additional factual allegations would be permitted to be
tried with the exception of allegations arising out
of
PERB' s confidential informal settlement
conference process.
A formal hearing was held over the course of seven days, June 25 through 28, 2013,
and July 17 through 19, 2013. On October 11, 2013, the matter was submitted for decision
following the submission
of
CSEA's and the District's post-hearing briefs. On May 30, 2014,
a 59-page proposed decision issued, concluding that the District had established by a
preponderance
of
the evidence that it would have disciplined and terminated Cordova even in
the absence of any protected conduct. The unfair practice complaint was dismissed. Neither
party filed a statement of exceptions to the proposed decision.
On July 16, 2014, Cordova requested a 16-day extension of time to file a statement of
exceptions (Request for Extension). By letter of July 17, 2014, the District objected to
Cordova's request on the grounds that Cordova is not a party to the case and her request did
not comply with PERB Regulation 321322 governing requests for extensions.
1 EERA is codified at Government Code section 3540 et seq. Undesignated section
references are to the Government Code.
2 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
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On July 21, 2014,3 Cordova filed a document entitled "Notice
of
Appeal and Appeal
of
Proposed Dismisal [sic]
of
May 30, 2014" (Appeal). The Appeal states that CSEA's former
and current attorneys, David Dolloff and Charmaine Huntting, have "abandoned the 'real party
in [i]nterest' (Cordova)." As recited in the proposed decision, CSEA withdrew its request for a
hearing to appeal the Skelly4 officer's ruling recommending that Cordova be immediately
suspended and terminated, stating that CSEA intended to pursue the matter as an unfair
practice charge. Cordova argues that because she cannot force CSEA to pursue an appeal
of
the proposed decision, she should therefore be allowed to file a statement
of
exceptions on her
own behalf. The Appeal sets forth five exceptions to the proposed decision and a prayer for
relief.
The administrative decision by the Appeals Assistant of July 22, 2014, addresses both
of
Cordova's filings, the Request for Extension and the Appeal. Both were denied on the same
ground. Because Cordova is not a party to the case, she had no right to request an extension or
file a statement
of
exceptions.
On July 31, 2014, Cordova filed a timely appeal
of
the administrative decision, which is
similar in substance to the Appeal. The Appeal states:
3 Under PERB Regulation 32300, subdivision (a), a party may file a statement of
exceptions to a proposed decision within 20 days following service
of
the decision. With
applicable automatic extensions under PERB Regulation 32130, the final date for filing a
statement of exceptions to the May 30, 2014, proposed decision ordinarily would have been
June 24, 2014. The District's copy
of
the proposed decision, however, was returned to PERB
through the U.S. mail system on June 24, 2014. As a result, the parties were given an
additional 20 days to file a statement of exceptions. With applicable automatic extensions
under PERB Regulation 32130, the final date for filing a statement of exceptions was July 21,
2014. The District argues that because the additional 20 days was provided for the District's
benefit, only the District was entitled to the additional time for filing a statement of exceptions.
Given the decision by the Board herein, we need not reach this issue.
4 Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly).
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Cordova cannot control the lawyers from the California School
Employees Association, she cannot control Jurupa Unified
School District lawyers, adverse actions against her, or any
animus harbored by her employer or union. All Cordova can do
is bring this case to the attention
of
the honorable PERB board to
bring justice to this case and to hold JUSD to a standard of
responsibility for their actions.
On August 8, 2014, the District filed a response to the appeal. The District argues that
the Appeals Assistant was correct to deny Cordova's Request for Extension and Appeal on the
stated grounds. The District agrees that Cordova has no standing to participate in the appeal
process as a party. By letter
of
August 25, 2014, the Appeals Assistant notified Cordova and
the parties, through their counsel, that the filings were complete and that the matter had been
placed on the Board's docket on August 22, 2014.
DISCUSSION
The issue in this case is whether Cordova has standing to pursue an appeal
of
the
proposed decision. If she lacks standing, the Appeals Assistant was correct to deny Cordova' s
Request for Extension and Appeal.
PERB
Regulation 32300, subdivision (a), provides:
A party may file with the Board itself an original and five copies of
a statement
of
exceptions to a Board agent's proposed decision
....
PERB Regulation 32305, subdivision (a), provides:
Unless a party files a timely statement of exceptions to the
proposed decision, the decision shall become final on the date
specified therein.
As we stated most recently in Santa Maria-Bonita School District (2013) PERB Order
No. Ad-400, the regulations are clear and unambiguous. Only a party to a proposed decision
has the right to file exceptions to it. There are two parties to the proposed decision, CSEA,
who filed the unfair practice charge and is referred to as the charging party, and the District,
who is the entity against whom the charge is filed and is referred to as the respondent. Neither
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party filed a statement of exceptions. Because Cordova is not a party to the case and therefore
lacks standing
to
file a statement
of
exceptions, the Appeals Assistant was correct to deny her
Request for Extension and Appeal. By operation
of
PERB Regulation 32305, the proposed
decision became final on July 21, 2014.
As the Board explained in Regents
of
the University
of
California (Lawrence Berkeley
National Laboratory) (2013) PERB Order No. Ad-397-H (UC):
The regulatory scheme delineates distinctions between the rights
of
parties and the rights
of
non-parties. PERB Regulation 32180,
for example, sets forth the rights
of
parties to a formal hearing as
including the right to appear in person, by counsel or by other
representative; the right
to
call, examine and cross-examine
witnesses; and the right to introduce documentary and other
evidence on the issues. By contrast, PERB Regulation 32210
allows 'any person' to file a petition to submit an informational
brief or to argue orally in any case at a hearing or before the
Board itself. Notably, like PERB Regulation 32180, the
regulation governing the filing
of
exceptions grants appeal rights
to the more limited category of
...
"parties."
(See also John Swett Unified School District (1981) PERB Decision No. 188 (Swett) ["PERB
rule 32300 only permits a 'party' to submit exceptions to a proposed hearing officer's decision.
Because the Association, and not O'Dwyer, is the charging party, we will not consider the
substance
of
the objections filed on O'Dwyer's behalf." (Fn. omitted.)].)
The facts here are similar to the facts in UC. In that case, the unfair practice charge
was brought by the exclusive representative alleging an unlawful unilateral change and
retaliation against two employees. Upon a full administrative hearing on the merits, the ALJ
issued a proposed decision dismissing the unfair practice complaint. Although neither party
filed a statement of exceptions, one of the two employees at the center of the retaliation
allegations requested an extension of time to file a statement of exceptions on her own behalf.
The Board held that the individual employee was not a party and therefore had no standing to
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participate in the appeal process. The facts here are also similar to the facts in Swett in which
the Board came to the same conclusion.
Cordova argues that she has no control over CSEA's lawyers. While CSEA, through its
lawyers, has control over the administrative litigation of its own unfair practice charge as the
charging party, CSEA has no control over Cordova's use
of
PERB processes. Cordova, as a
"[p]ublic school employee" under BERA section 3540.1, subdivision
G),
had the right to file an
unfair practice charge in her own right and on her own behalf. She also had the option of filing
with the A1J an application for joinder as a party in the case under PERB Regulation 32164.
She could have availed herself
of
these procedures to protect her individual interest in the
outcome
of
this matter. An unfair practice charge brought by an exclusive representative is
presumed to vindicate a collective interest, which is for the exclusive representative to
determine how best to achieve.
Both parties, charging party CSEA and the respondent District, have litigated their
respective cases fully and accepted the findings of fact and conclusions of law reached by the
ALJ in the proposed decision. To accord Cordova the right to appellate review
of
the ALJ' s
decision would be to contravene the regulatory scheme's rules governing the filing
of
exceptions. It would also undercut CSEA's right to control the administrative litigation
of
its
case as the charging party and upset both parties' expectation of finality.
ORDER
Janet Cordova's July 16, 2014 Request for Extension and July 21, 2014 Appeal are
hereby DENIED. The proposed decision of May 30, 2014, is FINAL.
Members Huguenin and Winslow joined in this Decision.
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