Bay Area Air Quality Management District (PERB 1927M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PAUL MAURIELLO,
Charging Party,
v.
BAY AREA AIR QUALITY MANAGEMENT
DISTRICT,
Respondent.
Case No. SF-CE-336-M
PERB Decision No. 1927-M
November 6, 2007
Appearances: 	Paul Mauriello, on his own behalf; Linda A. Tripoli, Attorney, for Bay Area Air
Quality Management District; Peter M. Rogosin, on his own behalf.
Before Neuwald, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on a request by Paul Mauriello (Mauriello) for the withdrawal of both his
exceptions to a proposed decision by an administrative law judge (ALJ) and the underlying
unfair practice charge. 	The charge alleged that the Bay Area Air Quality Management District
(District) violated the Meyers-Milias-Brown Act (MMBA)l by retaliating against Mauriello
when he used the grievance procedure to arbitrate his termination. 	Mauriello alleged this
conduct constituted a violation of MMBA sections 3506 and 3509(b), and PERB
Regulation 32603(a).2
1MMBA is codified at Government Code section 3500, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
2PERB regulations are codified at California Code of Regulations, title 8,
section 31001, et seq. 	Section 32603(a) provides that it shall be an unfair practice for a public
agency to:
Interfere with, intimidate, restrain, coerce or discriminate against
public employees because of their exercise of rights guaranteed
by Government Code section 3502 or by any local rule adopted
pursuant to Government Code section 3507.

BACKGROUND
This action was initiated on December 29, 2005, when Mauriello filed an unfair
practice charge against the District. 	A complaint was issued on April 3, 2006 by the PERB
General Counsel's office, and a proposed decision dismissing the case was issued by an ALJ
on September 28, 2006. Mauriello filed exceptions.
By letter dated March 12, 2007, Mauriello notified the Board that he was substituting
himself as his representative in this matter in lieu of his former representative, Peter M.
Rogosin (Rogosin).3 In addition, Mauriello stated the matter was settled and requested the
withdrawal of his unfair practice charge with prejudice.
Shortly thereafter, on March 16, 2007, Rogosin filed a "Declaration of Interference"
(Declaration) as a supplemental filing to Mauriello's statement of exceptions to the proposed
decision. According to the Declaration, Linda A. Tripoli, attorney for the District, met with
Mauriello at least two times outside the presence of Rogosin for the purpose of settling the
matter and demanded that Mauriello keep "secret from Rogosin" any action taken to resolve
the case. 	The Declaration concluded this conduct denied "fundamental fairness to Mauriello
and interfere(dJ with his business relationship with Rogosin."
The same day the Declaration was filed, Mauriello faxed a letter to PERB which
provides as follow:
I am been [sic] informed that Mr. Rogosin, my former
representative, filed a paper with PERB of which I have not
received a copy nor did I authorize Mr. Rogosin to fie those
papers on my behalf. 	I have already informed PERB that
Mr. Rogosin is no longer my representative and I still wish to
withdraw my PERB charge... .
Later, on July 11, 2007, Rogosin filed an "Application for Joinder of Interested Party
(Rogosin) & Request to Reject Withdrawal of Charges (amicus curiae)." In his application,
Mauriello is covered by a memorandum of understanding between the District and the
Bay Area Air Quality Management District Employees Association (Association). 	The
Association is not a party to this dispute.
2

Rogosin argued that the District engaged in contractual interference by intentionally inducing
Mauriello to breach his agreement with Rogosin. 	According to Rogosin, the only manner in
which he could collect his fees was through a "full hearing on the retaliation claim." In
addition, Rogosin alleges that Mauriello's settlement was coerced in violation of MMBA
section 32603-a.4 As such, Rogosin argues PERB has a "responsibility to reject the present
request for withdrawal."
For the reasons set forth below, we deny Rogosin's application for joinder and grant
Mauriello's request for withdrawal.
DISCUSSION
Request for Joinder
PERB Regulation 32164(a) provides that an "employee, employee organization or
employer" may file an application for joinder. 	As indicated above, Rogosin, Mauriello's former
representative, filed the application for joinder as an interested party to the case. Rogosin,
however, is not an employee, employee organization or employer. Accordingly, he lacks
standing to file such an application.
Alternatively, PERB Regulation 32164(d) authorizes the Board, on its own motion, to
order joinder of individuals in specific situations. 	In Sacramento City Unified School District
(1994) PERB Order No. Ad-252 (Sacramento USD), the Sacramento City Teachers
Association filed an unfair practice charge against the Sacramento City Unified School District
based on actions taken by the district in connection with the establishment of a charter school.
The principal of the school, Dennis Mah (Mah), was not a named party to the charge.
Consequently, he filed an application for joinder as an individual and as a representative of the
school's steering committee. 	The Board denied Mah's request for joinder pursuant to PERB
There is no MMBA section 32603-a. Presumably, Rogosin is relying upon PERB
Regulation 32603(a) which is cited in footnote 2, ante.
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Regulation 32164(a) based on lack of standing but, on its own motion, ordered Mah's joinder
pursuant to PERB Regulation 32164(d). According to the Board:
Mah has made a compelling argument that he represents certain
interests at Bowling Green. 	Due to the unique character of this
charter school and the alleged violations in the unfair practice
complaint, these interests are related to the subject of this unfair
practice charge. 	Mah is situated so that the disposition of this
case in his absence may, as a practical matter, impair or impede
his ability to protect that interest.
Thus, based on the Sacramento USD case, the Board may order the joinder of a party
pursuant to PERB Regulation 32164(d) if the party has an interest that is related to the subject
matter of the unfair practice charge at issue.
In his moving papers, Rogosin alleges the District induced Mauriello into settling the
case without Rogosin. 	As such, Rogosin concludes that such conduct constituted "direct
interference" with his business relationship with Mauriello. According to Rogosin, the only
way to collect his fees is to:
... (conduct) a full hearing on the retaliation claim, obtain a
finding of frivolous legal action, obtain a proper determination of
the arbitration award and apply any other pertinent factors to
determine a proper fee for the services rendered.
Rogosin's "interference" claim, however, is not based on interference in violation of
MMBA section 3506; rather, it appears to be based on a common law tort and, therefore,
beyond the scope of PERB's statutory charge. 	As such, the Board lacks the jurisdiction to
entertain this claim. 	Moreover, unlike the party seeking joinder in Sacramento USD,
Rogosin's interest is not related to the subject matter of the unfair practice charge. Instead,
Rogosin's interest is the collection of his fees.
While we may empathize with Rogosin's plight, PERB is not the appropriate tribunal in
which to resolve his fee dispute. Accordingly, Rogosin's request for joinder is denied.
4

Request for Withdrawal
By letter dated March 12, 2007, Mauriello informed the Board that the case was settled
and requested that his appeal and unfair practice charge be withdrawn. 	Later, after learning the
Declaration was filed, Mauriello promptly notified the Board that Rogosin was no longer his
representative, confirmed that Rogosin was not authorized to file the pleading on his behalf
and reiterated his request for the withdrawal of his unfair practice charge.
Notwithstanding Rogosin's allegations, we find that the settlement and withdrawal are
in the best interests of the parties over whom PERB has jurisdiction and that the settlement is
consistent with the purposes of the MMBA. 	Accordingly, Mauriello's request for withdrawal
is granted.
ORDER
Peter M. Rogosin's request for joinder in Case No. SF-CE-336-M is hereby DENIED.
Paul Mauriello's request to withdraw both his exceptions and the underlying unfair practice
charge in Case No. SF-CE-336-M is hereby GRANTED.
Chair Neuwald and Member Wesley joined in this Decision.
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