Regents of the University of California (Lawrence Berkeley National Laboratory) (PERB A397H)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
COALITION OF UNIVERSITY EMPLOYEES,
Charging Party,
V.
REGENTS OF THE UNIVERSITY OF
CALIFORNIA (LA WREN CE BERKELEY
NATIONAL LABORATORY),
Respondent.
Case No. SF-CE-945-H
Administrative Appeal
PERB Order No. Ad-397-H
February 22, 2013
Appearance: Regina Mann-Mcfarlane, on her own behalf.
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 Regina Mann-Mcfarlane (Mann-Mcfarlane) from the
administrative determination by the PERB Appeals Assistant denying her request for an
extension
of
time by which to file a statement
of
exceptions to the proposed decision
of
a
PERB administrative law judge (ALJ). The PERB Appeals Assistant denied the request
because Mann-Mcfarlane is not a party to this case. For the reasons set forth below, we affirm
the denial
of
Mann-McFarlane's request for extension
of
time.
PROCEDURAL HISTORY
The Coalition
of
University Employees (CUE) filed an unfair practice charge against
the Regents of the University of California (Lawrence Berkeley National Laboratory)
(University) on May 25, 20 l 0, alleging multiple acts ofretaliation against two employees and
an unlawful unilateral change to the disciplinary policy. Mann-Mcfarlane was one of the two
employees allegedly subject to the acts of retaliation. CUE filed amended charges on

December 29, 2010 and March 21, 2011. On April 11, 2011, PERB' s Office of the General
Counsel issued a complaint that alleged the University retaliated against Mann-McFarlane in
violation of the Higher Education Employer-Employee Relations Act (HEERA) 1 by issuing her
a final disciplinary warning because Mann-McFarlane filed a grievance in October 2009 and
complained that her supervisor changed her timecard. The remaining allegations were
dismissed.
CUE and the University participated in a settlement conference on May 12, 2011, but
the matter was not resolved. 	On September 7, 2011, CUE filed a motion to amend the
complaint to add five new allegations of unlawful conduct. The motion was denied. A formal
hearing was held on September 14 and October 26, 2011. The record was closed on
December 20, 2011, following the submission of additional exhibits identified during the
hearing.
CUE and the University engaged in further settlement discussions but were unable to
resolve the matter. The case was submitted for decision after post-hearing briefs were filed.
On October 31, 2012, the ALJ issued a twenty-one page proposed decision and order
dismissing the case. As stated, the proposed decision and order would become final under
PERB Regulation 323052 unless a party filed a statement of exceptions within 20 days of
service. Also as stated, any statement of exceptions and supporting brief were required to be
served concurrently with its filing upon each party to the proceeding, with proof of service to
accompan)' each copy served or filed. 	The cover letter to the proposed decision and order
1 HEERA is codified at Government Code section 3560 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

stated that a request for extension of time is subject to the same service and proof of service
requirements.
Neither party, CUE nor the University, filed a statement of exceptions. By letter dated
November 14, 2012, however, Mann-Mcfarlane requested an extension of time by which to
file a statement of exceptions. Mann-Mcfarlane explained that she did not agree with
credibility determinations made by the ALJ against her and in favor of a witness for the
University. Mann-Mcfarlane also stated that counsel for the University did not object to her
request for extension. Last, Mann-Mcfarlane requested that her name be added as a charging
party "since my Union will not be appealing for me." Neither CUE nor the University were
served with a copy of Mann-Mcfarlane's letter.
By letter dated November 15, 2012, the Appeals Assistant responded to Mann-
Mcfarlane's request for extension. The letter cited to PERB Regulation 32300, which
provides that a statement of exceptions to a proposed decision may be filed by a party.
Because Mann-Mcfarlane was not a party, her request was denied. The Appeals Assistant
enclosed a copy of Mann-Mcfarlane's letter of November 14, 2012, for the benefit of the
parties.
By letter dated November 24, 2012, Mann-Mcfarlane appealed the denial of her
request for an extension of time. Mann-Mcfarlane served the University, but not CUE, with a
copy of her appeal.3
3 On January 27, 2013, Mann-Mcfarlane faxed a document to the Appeals Assistant
containing four specific complaints about testimony and other evidence presented at the formal
hearing. PERB Regulation 32360, subdivision (b ), requires that an administrative appeal be
filed within 10 days following the date of service of the decision or letter of determination. To
the extent Mann-Mcfarlane intended the January 27 document to be included as part of her
appeal, it is not timely. Nor does it comply with service and proof of service requirements for
an appeal under PERB Regulation 32360, subdivision (d). Even were we to consider this
document in our review of Mann-McFarlane's appeal, it would effect no change in the analysis
of the issues or the outcome of the appeal for the reasons explained herein,
3

DISCUSSION
The main issue in this case is whether Mann-Mcfarlane, a non-party, has standing to
pursue an appeal of the proposed decision. If she lacks standing, the Appeals Assistant was
correct to deny Mann-Mcfarlane's request for extension.
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 provides:
Unless a party files a timely statement of exceptions to the
proposed decision, the decision shall become final on the date
specified therein.
The regulations are clear and unambiguous. Only "a party" to a proposed decision has
the right to except from it. There are two parties to the proposed decision, CUE and the
University. Neither party filed a statement of exceptions. Because Mann-Mcfarlane was not a
party to the case and therefore lacked standing to file a statement of exceptions, the Appeals
Assistant was correct to deny her request for an extension of time. By operation of PERB
Regulation 32305, the proposed decision became final on November 27, 2012.
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
4

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 entities and individuals
referred to as "parties."
The outcome here is consistent with the Board's decision in John Swett Unified
School District (1981) PERB Decision No. 188. The charge was brought by the employee
organization. It alleged that the school principal threatened and coerced a teacher,
John O'Dwyer, because of his exercise of protected rights. 	The proposed decision found in
favor of the employee organization on that allegation, but dismissed other allegations. 	The
case came before the Board itself on exceptions filed by the school district. The teacher,
through his own representative, also filed exceptions, but the Board itself declined to consider
them. 	The Board held:
(Fn. omitted.)
Finally, the Board declines to review a submission labeled
"exceptions" to the hearing officer's decision from the attorney
representative of O'Dwyer. 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.
Similarly here, CUE, and not Mann-Mcfarlane, is the charging party. Neither the
charge nor the complaint was amended to add Mann-Mcfarlane as a party.4 Mann-Mcfarlane
4 See PERB Regulation 32621 (amendment of charge before issuance of complaint);
PERB Regulation 32647 (amendment of complaint before hearing); and PERB
Regulation 32648 (amendment of complaint during hearing).
5

did not file a request for joinder with the ALJ. 5 While Mann-Mcfarlane has an individual
interest in the outcome of this case, the charge was brought by CUE to vindicate a collective
interest as determined by CUE. To accord Mann-Mcfarlane the right to appellate review of
the proposed decision is not only to contravene the regulatory scheme but also to undercut
CUE' s right to control the administrative litigation of its own case.
While PERB Regulation 32164 provides for ajoinder application procedure, it is of no
avail here for the following reasons. First, no formal application for joinder meeting the
requirements of subdivision (b) was ever filed. 6 Second, under both subdivisions ( c) and (d),
joinder is allowed only at the discretion of the Board, and there is nothing about the
circumstances presented here that would warrant the Board's exercise of discretion. Moreover,
under subdivision (c), joinder is not permitted where it would unduly impede the proceeding.
The proposed decision of the ALJ became final on November 27, 2012. Joinder of Mann-
McFarlane would revive a proceeding that has already concluded, a result as problematic as
impeding an ongoing proceeding. More importantly, to allow joinder at this stage of the
proceedings would subvert the clear and unambiguous meaning of PERB Regulation 32300
limiting the right to file exceptions from a proposed decision to the parties to the case. 	Joinder
5 PERB Regulation 32164, subdivision a, provides: "Any employee, employee
organization or employer may file with the Board agent an application for joinder as a party in
a case."
6 subdivision (b)
The application for joinder shall be in writing, signed by the
representative filing it and contain a statement of the extent to
which joinder is sought and a statement of all the facts upon
which the application is based.
6

under these circumstances is not contemplated by the regulatory scheme. Accordingly,
we
deny the appeal. 7
ORDER
Regina Mann-McFarlane's administrative appeal
of
the PERB Appeals Assistant's
denial
of
her request for an extension
of
time by which to file exceptions to the administrative
law judge's (ALJ) proposed decision in Case No. SF-CE-945-H is hereby DENIED. The
ALJ's proposed decision is final.
Members Huguenin and Winslow joined in this Decision.
According to the proof
of
service, Mann-Mcfarlane did not serve her appeal on
as required by 	Regulation 32360, subdivision (d). "These [service] requirements
are not merely ritualistic. They are basic to providing due process to the involved parties."
(Los Angeles Community College District (1984) PERB Decision No. 395.)
CUE officially learned
of
the administrative appeal by letter from the Appeals Assistant
dated December 6, 2012. This letter informed the parties that the filings pertaining to the
appeal were complete and the case had been placed on the Board's docket. Although the
Board has the authority to excuse defective service if 	opposing party received actual notice
the filing and there is no showing of prejudice 	Unified School 	(1989)
PERB Order No. Ad-188), this case involves a failure to serve, not defective service.
Although the interests of Mann-Mcfarlane and CUE were once aligned at an earlier stage of
the proceedings, CUE chose not to file exceptions. Its interests can no longer be considered
aligned with those of Mann-Mcfarlane. Under these circumstances, prejudice to CUE arising
out of Mann-McFarlane's failure to serve CUE is clear. Therefore, Mann-Mcfarlane's appeal
is also denied for failure to comply with PERB's service requirements.
7