State of California (Department of Corrections) (PERB 1540SA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JESSE VICKERS,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS),
Respondent.
Appearance: Jesse Vickers, on his own behalf.
Before Baker, Whitehead and Neima, Members.
DECISION
Case No. LA-CE-595-S
Request for Reconsideration
PERB Decision No. 1540-S
PERB Decision No. 	1540a-S
February 	24, 	2004
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on review of Jesse Vickers' (Vickers) motion to excuse a late-filed second
amended charge and a request for reconsideration of State of California (Department of
Corrections) (2003) PERB Decision No. 1540-S (Corrections). 1 The charge alleged that the
State of California (Department of Corrections) (Corrections) violated the Ralph C. Dills Act
(Dills Act)2 by discriminating against him for his activities as a job steward and for filing
grievances. Vickers alleged that this conduct constituted a violation of Dills Act section
3519( a). 3 The Board agent deferred to arbitration and dismissed the charge because the issues
1The Board has consolidated these two cases in this decision.
2The Dills Act is codified at Government Code section 3 512 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
3Section 3519 states, in pertinent part:
It shall be unlawful for the state to do any of the following:

underlying the charge met the standards set forth in Dry Creek Joint Elementary School
District (1980) PERB Order No. Ad-81 and State of California (Department ofFood and
Agriculture) (2002) PERB Decision No. 1473-S. The Board issued its decision in Corrections
on June 30, 2003 adopting the Board agent's dismissal and Vickers filed this request for
reconsideration on July 21, 2003. On August 6, 2003, Vickers filed a second amended charge.
The attached proof of service identified the second amended charge as a request for
reconsideration. By letter dated August 11, 2003, the Appeals Assistant informed Vickers that
since a request for reconsideration was due no later than July 25, 2003, the latter document was
not timely filed. 	On August 21, 2003, Vickers filed an administrative appeal to the Appeals
Assistant's determination.
ADMINISTRATIVE APPEAL
Vickers contends that the Board should accept the second amended charge because it
reduces the issues in contention from seven to three. He explains that this is a positive step
toward reconciliation and so in this light, the Board should excuse the late filing.
Under PERB Regulation 321364, a late filing may be excused by the Board for good
cause only. In general, "good cause exists only where, under all the surrounding
circumstances, it is evident that the party made a conscientious effort to timely file and the
delay caused no prejudice to any party in the case." (United Teachers of Los Angeles (Kestin)
(2003) PERB Order No. Ad-325, citing State of California (State Teachers Retirement System)
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise ofrights guaranteed by this chapter. For
purposes of this subdivision, 'employee' includes an applicant for
employment or reemployment.
4PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
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(1999) PERB Order No. Ad-296-S.) In this matter, Vickers filed the second amended charge
on August 6, 2003 when an amended charge was due no later than December 18, 2002. 	Even
if
deemed a request for reconsideration, the request was due July 25, 2003. Vickers has not
provided any information that demonstrates any effort to file the document on a timely basis.
Therefore, the Board does not excuse the late filing.
In addition, Vickers has also timely filed a request for reconsideration, which we shall
address below.
REQUEST FOR RECONSIDERATION
PERB Regulation 32410 governs requests for reconsideration. Section 32410 provides,
in pertinent part:
(a) 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.
In this case, Corrections was issued by the Board on June 30, 2003. The Board in
Corrections adopted the Board agent's deferral to arbitration and dismissal of Vickers' charge.
In his request for reconsideration, Vickers alleges and has attached a letter from the California
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Correctional Peace Officer Association (CCPOA) dated June 18, 2003. The letter states that
Corrections had denied the grievance at the third level, as confirmed by an attached letter from
Corrections dated May 27, 2003, and since the grievances involved a "policy" dispute, section
6.02(B) of the Bargaining Unit 6 contract precluded arbitration of the grievance. CCPOA
stated that there was no further action it could pursue for the grievances under the grievance
procedure and so was closing the case file. 5 Where the union lacks the right to pursue the
grievance to arbitration, deferral is inappropriate. (Moreno Valley Unified School District
(1995) PERB Decision No. 1106; Antelope Valley Union High School District (1998) PERB
Decision No. 1287; Inglewood Unified School District (1991) PERB Order No. Ad-222; see
also, State of California (Department of Parks and Recreation) (1995) PERB Decision
No. 1125-S.) As a result, given Vickers' allegations in the request, the Board should no longer
defer this matter and should investigate the allegations to determine whether Vickers has stated
a prima facie violation of the Dills Act.
We therefore find that Vickers' request for reconsideration warrants approval. Vickers
has introduced newly discovered evidence which was not previously available. By letter dated
June 18, 2003, Vickers learned that CCPOA could not pursue his grievance to arbitration under
the Section 6.02(B) of the Bargaining Unit 6 contract. This information was discovered well
after Vickers' appeal was docketed on February 10, 2003 and soon before the Board's decision
in Corrections was issued. The information was submitted as a timely request for
reconsideration approximately one month after it was discovered.
5The June 18, 2003 letter quoted Section 6.02(B) as follows:
A policy grievance may be processed only to the Director's level
of this grievance procedure unless otherwise capped at a lower
level in this agreement (e.g., LOis/WIDs), and is not arbitrable.
(Emphasis added.)
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ORDER
Jesse Vickers' request for reconsideration of the Board's decision in State of California
(Department of Corrections) (2003) PERB Decision No. 1540-S is hereby GRANTED. 	The
charge shall be thereby REMANDED to the General Counsel's Office for further investigation.
Jesse Vickers' request that the Board accept the late-filed second-amended charge in
Case No. LA-CE-595-S is hereby DENIED.
Members Baker and Neima joined in this Decision.
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