County of Riverside (PERB 2228M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
RIVERSIDE COUNTY ATTORNEYS'
ASSOCIATION
Charging Party, 	Case No. LA-CE-566-M
v. 	PERB Decision No. 2228-M
December 21, 2011	COUNTY OF RIVERSIDE,
Respondent.
Appearances: Hayes & Cunningham by Lauren Arens, Attorney, for Riverside County
Attorney's Association; The Zappia Law Firm by Brett M. Ehman, Attorney, for County of
Riverside.
Before Mckeag, Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Riverside County Attorneys' Association (RCAA) of a
Board agent's partial dismissal of its unfair practice charge. The charge alleges that the
County of Riverside (County) violated sections 3502, 3507(c), 3507.1(c) and 3507.3 of the
Meyers-Milias-Brown Act (MMBA)' by: (1) failing to process RCAA's request to be
registered as an employee organization; (2) refusing to allow a neutral third-party to review
employee support cards selecting RCAA as the representative of employees in the position of
deputy county counsel in order to determine RCAA's majority status; (3) refusing to allow
MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government code.
2 The third party in this case was state mediation and conciliation service (SMCS).
STATE OF CALIFORNIA
DECISION OF THE
PUBL.IC EMPLOYMENT RELATIONS BOARD
RIVERSIDE COUNTY ATTORNEYS'
ASSOCIATION,
Charging Party,
V.
COUNTY OF RIVERSIDE,
Respondent.
Case No. LA-CE-566-M
PERB Decision No. 	2228-M
December 21, 2011
Appearances: Hayes & Cunningham by Lauren Arens, Attorney, for Riverside County
Attorney's Association; The Zappia Law Firm by Brett M. Ehman, Attorney, for County
of
Riverside.
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Riverside County Attorneys' Association (RCAA)
of
a
Board agent's partial dismissal
of
its unfair practice charge. The charge alleges that the
County
of
Riverside (County) violated sections 3502, 3507(c), 3507.l(c) and 3507.3
of
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RCAA's request to be
registered as an employee organization; (2) refusing to allow a neutral third-party2 to review
employee support cards selecting RCAA as the representative
of
employees in the position
of
deputy county counsel 	order to determine RCAA's majority status; (3) refusing to allow
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government code.
2 The third party in this case was state mediation and conciliation service (SMCS).

SMCS to review employee support cards selecting RCAA as the representative of employees
in the position of deputy public defender to determine RCAA's majority status; (4) refusing to
create a bargaining unit consisting of County employees employed in the position of deputy
county counsel; (5) refusing to create a bargaining unit, or, in the alternative, recognize a
previously established bargaining unit consisting of County employees in the position of
deputy public defender; (6) unreasonably withholding recognition of RCAA as an exclusive
employee organization representing deputy county counsel and deputy public defender
employees; and (7) refusing to negotiate with RCAA, thereby denying RCAA its right to
represent employees.'
On appeal, RCAA challenges the dismissal of its allegation that the County violated
MMBA section 3507.1(c) by refusing to create a bargaining unit consisting of County
employees in the position of deputy county counsel. The Board has reviewed the entire record
in this matter. Based on this review, we dismiss RCAA's appeal as untimely for the reasons
discussed below.
PROCEDURAL BACKGROUND
On January 3, 2011, RCAA's charge was partially dismissed. In the partial dismissal
letter, the Board agent notified RCAA that it had 20 calendar days to appeal the partial
dismissal.
On January 21, 2011, RCAA filed its appeal with PERB by facsimile and letter.
RCAA's January 21, 2011 appeal contained no factual information and set forth no issues of
contention which RCAA had taken with the Board agent's partial dismissal.
The partial dismissal letter fully addresses only allegations number 2, 4, 6, and 7
above. Additionally, allegation number 1 is partially addressed in the partial dismissal.
2
SMCS to review employee support cards selecting RCAA as the representative
of
employees
in the position
of
deputy public defender to determine RCAA's majority status; (4) refusing to
create a bargaining unit consisting
of
County employees employed in the position
of
deputy
county counsel; (5) refusing to create a bargaining unit, or, in the alternative, recognize a
previously established bargaining unit consisting
of
County employees in the position
of
deputy public defender; (6) unreasonably withholding recognition
of
RCAA as an exclusive
employee organization representing deputy county counsel and deputy public defender
employees; and (7) refusing to negotiate with RCAA, thereby denying RCAA its right to
represent employees. 3
On appeal, RCAA challenges the dismissal
of
its allegation that the County violated
MMBA section 3507.1 ( c) by refusing to create a bargaining unit consisting
of
County
employees in the position
of
deputy county counsel. The Board has reviewed the entire record
in this matter. Based on this review, we dismiss RCAA's appeal as untimely for the reasons
discussed below.
PROCEDURAL BACKGROUND
On January 3, 2011, RCAA's charge was partially dismissed. In the partial dismissal
letter, the Board agent notified RCAA that it had 20 calendar days to appeal the partial
dismissal.
On January 21, 2011, RCAA filed its appeal with PERB by facsimile and letter.
RCAA' s January 21, 2011 appeal contained no factual information and set forth no issues of
contention which RCAA had taken with the Board agent's partial dismissal.
The partial dismissal letter fully addresses only allegations number 2, 4, 6, and 7
above. Additionally, allegation number 1 is partially addressed in the partial dismissal.
2

On February 3, 2011, by facsimile and letter, RCAA attempted to again file its appeal.
Again, that letter contained no factual information and set forth no issues of contention with
the Board agent's partial dismissal.
On February 4, 2011, PERB rejected the February 3, 201 1 letter as untimely and
notified the parties that the January 21, 2011 filing would be considered to constitute the
appeal from the Board agent's partial dismissal. RCAA did not appeal that determination
pursuant to PERB Regulation 32360.*
On February 28, 2011, the County filed its opposition to the appeal.
On March 7, 2011, PERB notified RCAA and the County by letter that the filings were
completed and the case was placed on the Board's docket on February 28, 2011.
On March 7, 2011, by facsimile and letter, RCAA supplemented its appeal with
additional factual allegations and documents that challenged the Board's agent's partial
dismissal.
On March 8, 2011, the County objected to PERB's consideration of RCAA's March 7,
2011 letter.
On March 8, 2011, RCAA faxed a letter to PERB contending that there was good cause
for PERB to consider the additional factual allegations and documents in the March 7, 2011
supplement to the appeal.
On March 9, 2011, PERB notified the parties that acceptance of the March 7, 201 1 and
March 8, 2011 filings would be at the discretion of the Board.
On March 24, 2011, the County again objected to consideration of RCAA's March 7,
2011 filing.
PERB regulations are codified at California Code of Regulations, title 8 section 31001
et seq.
3
On February
3,
2011, by facsimile and letter, RCAA attempted to again file its appeal.
Again, that letter contained no factual information and set forth no issues
of
contention with
the Board agent's partial dismissal.
On February 4, 2011, PERB rejected the February 3, 2011 letter as untimely and
notified the parties that the January 21, 2011 filing would be considered to constitute the
appeal from the Board agent's partial dismissal. RCAA did not appeal that determination
pursuant to PERB Regulation 32360.4
On February 28, 2011, the County filed its opposition to the appeal.
On March
7,
2011, PERB notified RCAA and the County by letter that the filings were
completed and the case was placed on the Board's docket on February 28, 2011.
On March
7,
2011, by facsimile and letter, RCAA supplemented its appeal with
additional factual allegations and documents that challenged the Board's agent's partial
dismissal.
On March
8,
2011, the County objected to PERB's consideration
of
RCAA's March 7,
2011 letter.
On March
8,
2011, RCAA faxed a letter to PERB contending that there was good cause
for PERB to consider the additional factual allegations and documents in the March 7, 2011
supplement to the appeal.
On March 9, 2011, PERB notified the parties that acceptance of the March 7, 2011 and
March 8, 2011 filings would be at the discretion of the Board.
On March 24, 2011, the County again objected to consideration of RCAA's March 7,
2011 filing.
4 PERB regulations are codified at California Code of Regulations, title 8 section 31001
et seq.
3

DISCUSSION
RCAA'S Compliance With Requirements For Filing Appeal
Pursuant to PERB Regulation 32635(a) an appeal from a dismissal must:
(1) State the specific issues of procedure, fact, law or rationale to
which the appeal is taken;
(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 (Ventura, et al.) (2009) PERB Decision No. 2069-H; 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; Lodi Education
Association (Hudock) (1995) PERB Decision No. 1124; United Teachers - Los Angeles
(Glickberg) (1990) PERB Decision No. 846.)
RCAA's January 21, 201 1 appeal is timely.' However, RCAA did not state in the appeal
the specific issues of procedure, fact, law or rationale to which the appeal is taken, identify the
page or part of the dismissal to which each appeal is taken, nor did it state the grounds for each
RCAA's January 21, 2011 filing with PERB is an appeal and not a request for an
extension of time. PERB Regulation 32132(a) provides that a request for an extension of time
must be filed at least three calendar days before the expiration of the time required for filing
the document. Even if the filing were a request for an extension of time, RCAA did not file it
with PERB at least three calendar days before the January 23, 2011 deadline to file the appeal.
Therefore, the request for an extension of time would have been tardy.
DISCUSSION
RCAA'S
Compliance With Requirements For Filing Appeal
Pursuant to PERB Regulation 32635(a) an appeal from a dismissal must:
( 1) State the specific issues
of
procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part
of
the dismissal to which each
appeal is taken;
State the grounds for each issue stated.	(3)
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 (Ventura, et al.) (2009) PERB Decision No. 2069-H; 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; Lodi Education
Association (Hudock) (1995) PERB Decision No. 1124; United Teachers - Los-Angeles
(Glickberg) (1990) PERB Decision No. 846.)
5
RCAA's January 21, 2011 appeal is timely. 	However, RCAA did not state in the appeal
the specific issues
of
procedure, fact, law or rationale to which the appeal is taken, identify the
page or part
of
the dismissal to which each appeal is taken, nor did it state the grounds for each
5
RCAA's January 21, 2011 filing with PERB is an appeal and not a request for an
extension
of
time. 	PERB Regulation 32132(a) provides that a request for an extension
of
time
must be filed at least three calendar days before the expiration of the time required for filing
the document. 	Even if the filing were a request for an extension of time, RCAA did not file it
with PERB at least three calendar days before the January 23, 2011 deadline to file the appeal.
Therefore, the request for an extension of time would have been tardy.
4

issue stated." Thus, RCAA's January 21, 2011 appeal does not comply with the requirements of
PERB Regulation 32635(a)."
Good Cause For The Board To Find The March 7. 2011 Filing As Timely
PERB Regulation 32136 provides that a late filing may be excused in the discretion of
the Board for good cause only. (North Orange County Regional Occupation Program (1990)
PERB Decision No. 807; Trustees of the California State University (1989) PERB Order
No. Ad-192-H.)
In a letter sent to PERB on March 8, 2011, RCAA contends that it has shown good cause
for the Board to find the March 7, 2011 supplement to the appeal to be timely. We disagree.
The sole reason RCAA sets forth as to why we should find good cause is that RCAA
needed additional time to collect the exhibits which were included in the appeal. The new
factual allegations and documents in the March 7, 2011 supplement all predate the filing of the
original charge. RCAA states no reason why it needed extra time to collect the exhibits. We are
therefore unable to conclude that good cause exists for the delay. As the March 7, 2011
supplement to the appeal is untimely, we do not consider it here.
Good Cause For The Board To Consider New Information On Appeal
Even if RCAA's March 7, 2011 filing were timely, the information in the supplement to
the appeal does not meet the requirements of PERB Regulation 32635(b).
PERB Regulation 32635(b) provides: "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new support evidence." (Los Banos Unified
" In the January 21, 2011 appeal, RCAA did inform PERB that RCAA would send its
"position statement forthwith."
"RCAA's February 3, 2011 appeal is untimely and will not be considered by the Board.
However, even if the February 3, 2011 appeal were timely, it still would not satisfy the
requirements of PERB Regulation 32635(a).
5
issue stated.6 Thus, RCAA's January 21, 2011 appeal does not comply with the requirements
of
PERB Regulation 32635(a).7
Good Cause For The Board To Find The March 7, 2011 Filing As Timely
PERB Regulation 32136 provides that a late filing may be excused in the discretion
of
the Board for good cause only. (North Orange County Regional Occupation Program (1990)
PERB Decision No. 807; Trustees
of
the California State University (1989) PERB Order
No. Ad-192-H.)
In a letter sent to PERB on March
8,
2011, RCAA contends that it has shown good cause
for the Board to find the March
7,
2011 supplement to the appeal to be timely. We disagree.
The sole reason RCAA sets forth as to why we should find good cause is that RCAA
needed additional time to collect the exhibits which were included in the appeal. 	The new
factual allegations and documents in the March
7,
2011 supplement all predate the filing
of
the
original charge. RCAA states no reason why it needed extra time to collect the exhibits. We are
therefore unable to conclude that good cause exists for the delay. As the March 7, 2011
supplement to the appeal is untimely, we do not consider it here.
Good Cause For The Board To Consider New Information On Appeal
Even
if
RCAA's March 7, 2011 filing were timely, the information in the supplement to
the appeal does not meet the requirements
of
PERB Regulation 32635(b).
PERB Regulation 32635(b) provides: "Unless good cause is shown, a charging party
may not present on appeal new charge allegations or new support evidence." (Los Banos Unified
6 In the January 21, 2011 appeal, RCAA did inform PERB that RCAA would send its
"position statement forthwith."
7 RCAA's February 3, 2011 appeal is untimely and will not be considered by the Board.
However, even if the February 3, 2011 appeal were timely, it still would not satisfy the
requirements of PERB Regulation 32635(a).
5

School District (2009) PERB Decision No. 2063 [new evidence on appeal not considered where
charging party was aware of such evidence prior to filing the charge and there was no
demonstration of good cause].) The purpose of this regulation "is to require the charging party
to present its allegations and supporting evidence to the Board in the first instance, so that the
Board agent can fully investigate the charge prior to deciding whether to issue a complaint or
dismiss the case." (South San Francisco Unified School District (1990) PERB Decision
No. 830.)
In its March 7, 2011 supplement to its appeal, RCAA appeals the dismissal of its
allegation that the County violated the MMBA when it refused to create a bargaining unit
consisting of County employees in the position of deputy county counsel. RCAA's supplement
to its appeal contains factual allegations and documents that were not presented to the Board
agent. The new factual allegations and documents all reference incidents which predate the
filing of the original charge. Neither the appeal nor the supplement to the appeal provides a
reason why these factual allegations and documents could not have been presented in the original
charge. Thus, RCAA has failed to establish the requisite good cause to consider these new
allegations and documents (Ibid.), and we do not consider them on appeal.
ORDER
The unfair practice charge in Case No. LA-CE-566-M is hereby DISMISSED IN PART
WITHOUT LEAVE TO AMEND.
6
School District (2009) PERB Decision No. 2063 [new evidence on appeal not considered where
charging party was aware
of
such evidence prior to filing the charge and there was no
demonstration
of
good cause].) The purpose
of
this regulation "is to require the charging party
to present its allegations and supporting evidence to the Board in the first instance, so that the
Board agent can fully investigate the charge prior to deciding whether to issue a complaint or
dismiss the case." (South San Francisco Unified School District (1990) PERB Decision
No. 830.)
In its March 7, 2011 supplement to its appeal, RCAA appeals the dismissal
of
its
allegation that the County violated the MMBA when it refused to create a bargaining unit
consisting
of
County employees in the position
of
deputy county counsel. RCAA' s supplement
to its appeal contains factual allegations and documents that were not presented to the Board
agent. The new factual allegations and documents all reference incidents which predate the
filing
of
the original charge. Neither the appeal nor the supplement to the appeal provides a
reason why these factual allegations and documents could not have been presented in the original
charge. Thus, RCAA has failed to establish the requisite good cause to consider these new
allegations and documents (Ibid.), and we do not consider them on appeal.
ORDER
The unfair practice charge in Case No. LA-CE-566-M is hereby DISMISSED IN PART
WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined 	this Decision.
6
Members Mckeag and Dowdin Calvillo joined in this Decision.