California School Employees Association and its Chapter 746 (Perez) (PERB 2187E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ALBERT ANTHONY PEREZ,
Charging Party,
V.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 746,
Respondent.
Case No. LA-CO-1400-E
PERB Decision No. 2187
June 15, 2011
Appearances: Albert Anthony Perez, on his own behalf; David J. Dolloff, Attorney, for
California School Employees Association & its Chapter 746.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
DOWDIN CALVILLO, Member: This case is before the Public Employment Relations
Board (PERB or Board) on appeal by Albert Anthony Perez (Perez) of a Board agent's
dismissal of his unfair practice charge. The charge alleged that California School Employees
Association & its Chapter 746 (CSEA) breached its duty of fair representation under the
Educational Employment Relations Act (EERA)1 by failing to adequately represent Perez in
resolving a grievance filed on his behalf with the Downey Unified School District (District).
The Board agent found that the charge failed to state a prima facie violation of the duty of fair
representation.
The Board has reviewed the dismissal and the record in light of Perez's appeal, CSEA's
response thereto, and the relevant law. Based on this review, we find that Perez failed to file a
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

timely appeal and that the appeal failed to comply with applicable regulations. Accordingly,
we affirm the dismissal
of
the charge for the reasons set forth below.
FACTUAL BACKGROUND
On November 30, 2009, Perez filed an unfair practice charge with PERB alleging that
CSEA breached its duty
of
fair representation under EERA section 3543.6 by failing to
properly represent him in a grievance he filed with the District for alleged contract violations.
The alleged violations concerned his request to demote from the position
of
Lead Custodian in
the Maintenance Operations and Transportation (MOT) department to the position
of
Utility
Worker, a position outside the MOT department. In essence, Perez alleged that CSEA
breached its duty
of
fair representation by concluding, during the grievance process, that the
grievance lacked merit and that Perez was not entitled to the demotion he sought.
CSEA filed a response on December 14, 2009 denying the charges. On January 16,
2011, a PERB Board agent sent Perez a letter advising him that the charge failed to state a
prima facie case and warning him that the charge would be dismissed unless he filed an
amended charge correcting the deficiencies by February 2, 2011. On February 2, 2011, the
Board agent attempted to telephone Perez to determine whether he had received the warning
letter and whether he intended to file an amended charge. The Board agent was unable to
reach Perez because the only phone number provided by Perez in his unfair practice charge
was no longer in service. Therefore, on February 8, 2011, the Board agent issued a letter
dismissing the charge. The letter notified Perez
of
his right to appeal the dismissal
of
the
charge by filing an appeal to the Board itself within twenty calendar days after service
of
the
dismissal, pursuant to PERB Regulation 32635(a).2
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
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The Board's records indicate that, on or about March
1,
2011, Perez sent a letter by
facsimile to the Board stating, in relevant part:
To Public Employment Relations Board, I Albert A. Perez am
requesting an extension
of
time regarding the dismissal letter
'Unfair Practice Charge No. LA-CO-1400-E' to be extended to
March 14, 2011. Reasons being a recent change
of
address and
new cell phone number. Because
of
those changes I did not
receive the notices to file an amended charge before the deadline
to file. 	I did however notify CSEA Chapter 746
of
the change
of
address and new phone number in early November 2010. I am
unaware
of
the position
of
the other party. [3 l
On March 4, 2011, the PERB Appeals Assistant issued a letter to the parties stating:
This is to inform you that the parties are in agreement regarding
Mr. Perez's request for an extension
of
time to file an appeal
of
the Board agent's dismissal in the case referenced above,
therefore the extension is hereby granted.
The new due date for filing an appeal
of
the Board agent's
dismissal will be Monday, March 14, 2011.
(Underlining in original, bold text added for emphasis.)
On March 16, 2011, Perez filed an amended charge with PERB.4 The amended charge
essentially restates the allegations
of
the original charge and contains additional documentary
evidence.
By letter dated March 23, 2011, CSEA objected to the filing
of
a first amended charge
and asserted that it did not object to PERB providing Perez with an extension
of
time to file an
appeal in this case. This matter was placed on the Board's docket on March 30, 2011.
The letter appears to have been served by mail on counsel for CSEA on March 4,
2011.
4 The proof of service attached to the amended charge indicates it was mailed on
March 14, 2011.
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DISCUSSION
Filing
of
Amended Charge After Dismissal
PERB has historically treated the filing
of
an amended charge after an unfair practice
charge has been dismissed as an appeal from the dismissal
of
the charge. (Compton Unified
School District (2008) PERB Order No. Ad-374; Regents
of
the University
of
California
(2008) PERB Order No. Ad-370-H (Regents); Los Angeles Unified School District (2007)
PERB Order No. Ad-368.) An appeal from dismissal must be filed within twenty days after
service
of
the dismissal. (PERB Reg. 32635.) The filing deadline is extended by five days
when the dismissal was served by mail. (PERB Reg. 32130(c); Regents.)
In this case, the parties agreed to an extension
of
the deadline to file an appeal until
March 14, 2011. As Perez was informed in the dismissal letter, a document is considered
"filed" with PERB when it is actually received during a regular PERB business day (PERB
Reg. 32135(a); PERB Reg. 32130; Gov. Code§ l 1020(a)) or when received by facsimile
transmission before the close
of
business together with a facsimile transmission cover sheet
that meets the requirements
of
PERB Regulation 32135(d) and is also deposited in the mail
with proof
of
service (PERB Reg. 32135(b), (c), (d); PERB Reg. 32090; PERB Reg. 32130.)
Perez's amended charge was not received by PERB until March 16, 2011. Therefore, even
construing the amended charge as an appeal from dismissal, it was untimely unless PERB
exercises its discretion to accept the late-filed appeal upon a showing
of
good cause. (PERB
Reg. 32136.) No such showing has been made in this case. Therefore, the appeal is untimely
and subject to dismissal on that basis.
Compliance with Requirements for Filing Appeal
Pursuant to PERB Regulation 32635(a), an appeal from dismissal must:
(1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
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(2) Identify the page or part
of
the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
To satisfy the requirements
of
PERB Regulation 32635(a), the appeal must sufficiently
place the Board and the respondent
"on
notice
of
the issues raised on appeal." (State
Employees Trades Council United (2009) PERB Decision No. 2069-H (State Employees Trade
Council); City & County
of
San Francisco (2009) PERB Decision No. 2075-M.) An appeal
that does not reference the substance
of
the Board agent's dismissal fails to comply with PERB
Regulation 32635(a). (United Teachers
of
Los Angeles (Pratt) (2009) PERB Order No. Ad-381
(Pratt); Lodi Education Association (Hudock) (1995) PERB Decision No. 1124; United
Teachers - Los Angeles (Glickberg) (1990) PERB Decision No. 846.) Likewise, an appeal that
merely reiterates facts alleged in the unfair practice charge does not comply with PERB
Regulation 32635(a). (Pratt; State Employees Trade Council; Contra Costa County Health
Services Department (2005) PERB Decision No. 1752-M; County
of
Solano (Human Resources
Department) (2004) PERB Decision No. 1598-M.)
The amended charge merely restates facts alleged in the original charge that CSEA
erred in its interpretation
of
the contract provisions governing Perez's right to voluntarily
demote to the position
of
Utility Worker. It fails, however, to reference any portion
of
the
Board agent's determination or otherwise identify the specific issues
of
procedure, fact, law or
rationale to which the appeal is taken, the page or part
of
the dismissal to which appeal is
taken, or the grounds for each issue. Thus, it is subject to dismissal on that basis as well.
(City
of
Brea (2009) PERB Decision No. 2083-M.)
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New Evidence and Allegations on Appeal
Were we to consider Perez's appeal, we would also decline to consider new evidence and
new factual allegations contained in the appeal that were not presented in the original charge.
"Unless good cause is shown, a charging party may not present on appeal new charge allegations
or new supporting evidence." (PERB Reg. 32635(b); see also CSU Employees Union, SEJU
Local 2579 (Kyrias) (2011) PERB Decision No. 2175-H.) The Board has found good cause
when "the information provided could not have been obtained through reasonable diligence prior
to the Board agent's dismissal
of
the charge." (Sacramento City Teachers Association (Ferreira)
(2002) PERB Decision No. 1503.)
The documents attached to the appeal consist
of
various job descriptions and schedules
of
work duties related to Perez's claims that CSEA breached its duty
of
fair representation by
failing to resolve Perez's grievance to his satisfaction. The appeal provides no reason why they
could not have been provided with the original charge or in a timely filed amended charge.
Thus, we find no good cause to consider these new allegations and evidence on appeal.
ORDER
The unfair practice charge in Case No. LA-CO-1400-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Martinez and Member McKeag joined in this Decision.
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