Teamsters Clerical, Local 2010 (Polk) (PERB 2489H)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
DEBBIE POLK,
Charging Party,
v.
TEAMSTERS CLERICAL, LOCAL 2010,
Respondent.
Case No. LA-CO-528-H
PERB Decision No. 2489-H
June 30, 2016
Appearance: Debbie Polk, on her own behalf.
Before Martinez, Chair; Winslow and Banks, Members.
DECISION
WINSLOW, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions by Debbie Polk to a proposed decision (PD) (attached) issued
by an administrative law judge (ALJ) on August 5, 2015. The complaint alleged that
Teamsters Clerical, Local 2010 (Local 2010) violated the Higher Education Employer-
Employee Relations Act (HEERA) 	by breaching its duty of fair representation in handling
grievances on behalf of Polk, thus violating HEERA section 3571.1, subdivisions (b) and (e).
1
The ALJ concluded that Polk had not pursued this case with due diligence and that her
failures to appear for hearing dates and meet other deadlines were without good cause.
Accordingly, the ALJ granted Local 2010’s motion to dismiss the case for failure to prosecute,
and he dismissed the charge and complaint in this case.2
HEERA is codified at Government Code section 3560 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
1
Local 2010 filed a motion to have its attorneys’ fees and costs for its appearance on
July 13 assessed against Polk. The ALJ denied the motion, and Local 2010 did not except to
that ruling. That issue is therefore not before us. (PERB Regulation 32300, subd. (c).)
2

________________________
The Board itself has reviewed the administrative record in its entirety and considered
Polk’s exceptions. The record as a whole supports the findings of fact, and the proposed
decision is well-reasoned and consistent with applicable law. Accordingly, the Board hereby
affirms the ALJ’s rulings, findings and conclusions of law and adopts the proposed decision as
the decision of the Board itself, subject to the following discussion of Polk’s exceptions.
POLK’S STATEMENT OF EXCEPTIONS
Polk filed a partially hand-written “Partial Statement of Exceptions” with PERB on
September 28, 2015,3 in which she stated:
Dismissing LA CO 528 H for failure to prosecute is an extremely
harsh punishment to impose on the Charging Party for
circumstances beyond her control and her demonstrated diligence
to work through obstacles, particularly in light of the fact that
there was no malicious or improper intent to thwart progress or a
delaying tactic on her part, and certainly not to the drastic extent
of dismissing charge LA CO 528 H. There are no facts to support
a finding of failure to prosecute only argument able [sic]
statements.
It is unreasonable for [T]eamsters [L]ocal 2010 to seek failure to
prosecute when they were a party to the [d]elay.
We disregard the “Amended Statement of Exceptions” that Polk filed with PERB on
or about October 5, 2015 and “Correct Amended Statement of Exceptions” that Polk filed with
PERB on or about October 13, 2015. These documents were filed beyond the September 28,
2015, extended filing deadline granted by PERB’s Office of Appeals without a showing of
good cause. Under PERB Regulation 32136, a late filing may be excused in the discretion of
the Board for good cause only. Additionally, the filing of these documents are not authorized
by PERB’s regulations and therefore were not considered by the Board on appeal. (See PERB
Regulations 32300 [Exceptions to Board Agent Decision] and 32310 [Response to
Exceptions]; Trustees of the California State University (San Marcos) (2015) PERB Decision
No. 2407-H at p. 2 fn. 2 [PERB Regulations impose “regulatory constraints on multiple filings
by a single party”].)
3
2

DISCUSSION
PERB Regulation 32300 states, in relevant part:
(a) . . . The statement of exceptions or brief shall:
(1) State the specific issues of procedure, fact, law or rationale to
which each exception is taken;
(2) Identify the page or part of the decision to which each
exception is taken;
(3) Designate by page citation or exhibit number the portions of
the record, if any, relied upon for each exception;
(4) State the grounds for each exception.
(b) Reference shall be made in the statement of exceptions only
to matters contained in the record of the case.
(c) An exception not specifically urged shall be waived.
Polk’s exceptions failed to comply with any of the requirements in PERB Regulation
32300, subdivision (a). On this ground, we reject her exceptions.
Even if Polk’s exceptions had satisfied the requirements of PERB Regulation 32300,
subdivision (a), we would reject her exceptions, for they point to no error of law or fact in the
proposed decision, and we find none.
ORDER
Based upon the foregoing motions, findings of fact, conclusions of law, and the entire
record in this matter, the complaint and underlying unfair practice charge in Case No.
LA-CO-528-H, Debbie Polk v. Teamsters Clerical, Local 2010, are hereby DISMISSED. All
other motions filed by the parties are DENIED.
Chair Martinez and Member Banks joined in this Decision.
3

________________________
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
DEBBIE POLK,
Charging Party,
v.
TEAMSTERS CLERICAL, LOCAL 2010,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CO-528-H
PROPOSED DECISION
(August 5, 2015)
Appearances: Debbie Polk, on her own behalf; John Varga, Legal Director, for Teamsters
Clerical, Local 2010.
Before Eric J. Cu, Administrative Law Judge.
In this case, a former higher education employee alleges that an exclusive
representative violated the Higher Education Employer-Employee Relations Act (HEERA)1 by
breaching the duty of fair representation when handling her grievances. The exclusive
representative denies any violation and has moved to dismiss the matter for failure to prosecute
with due diligence. This proposed decision also considers other motions filed by the parties.
FINDINGS OF FACT RELATING TO RESPONDENT’S MOTIONS
Pre-Hearing Procedural History
Debbie Polk filed the instant unfair practice charge with Public Employment Relations
Board (PERB or the Board) on January 30, 2013, accusing Teamsters Clerical, Local 2010
(Local 2010) of breaching its duty to represent her in grievances. Polk amended her charge
seven times during the PERB Office of the General Counsel’s investigation. Polk also
requested to place the case in abeyance for approximately six weeks. After the abeyance
1 HEERA is codified at Government Code section 3560 et seq.

________________________
period ended, on March 24, 2014, the General Counsel’s Office issued a complaint on Polk’s
behalf alleging that Local 2010’s handling of Polk’s October 2011 grievance violated HEERA,
section 3571.1, subdivisions (b) and (e). On April 14, 2014, Local 2010 filed an answer to the
complaint, denying the substantive allegations and asserting affirmative defenses.
A telephonic informal settlement conference was set for May 9, 2014, but was
continued at Polk’s request. Eventually, the conference was conducted telephonically on or
around June 20, 2014. The dispute was not resolved and the matter was assigned to me, as the
Administrative Law Judge (ALJ), for formal hearing. I scheduled the formal hearing for
October 6-7, 2014. The matter was rescheduled for November 12-13, 2014, at Local 2010’s
request and with Polk’s agreement. In November 2014, Polk requested a subsequent
continuance for medical reasons. I granted the request over Local 2010’s opposition and
rescheduled the case for February 5-6, 2015.2
On January 22, Polk filed an eighth amended charge and moved to amend complaint.
Polk alleged additional HEERA violations based on Local 2010’s handling of two other
grievances referenced in some of Polk’s underlying charge documents but not included in the
PERB complaint. On February 2, I granted Polk’s motion over Local 2010’s objections.
The Commencement of the Formal Hearing
The formal hearing commenced on February 5. During the hearing, Polk requested that
the matter be continued because Local 2010 had failed to produce documents she requested
from them. She admitted to not filing any subpoenas for those documents, pursuant to PERB
Regulation 32150.3 At the hearing, Polk stated to Local 2010’s counsel “if you had said at that
2 All dates hereafter refer to 2015 unless specifically stated otherwise.
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3
2

time I need a subpoena, then I would have done such.” I denied Polk’s request to continue the
hearing, reasoning that the hearing had been calendared since November 2014 and that Polk
did not provide a persuasive reason for waiting until the morning of the hearing to raise her
concerns over the documents. Furthermore, Polk did not subpoena any documents from
anyone at Local 2010.
Polk arrived around an hour late to the second day of hearing, on February 6. By the
end of the second day, Polk completed her case in chief for all claims and the parties
completed their examination of Local 2010’s first witness. Both agreed that there was
insufficient time remaining in the day to complete Local 2010’s final witness, Gregorio Daniel.
The parties concurred that one additional day was needed and agreed to appear on March 9.
On March 3, Polk requested to continue the March 9 hearing date due to “an extreme
private emergency beyond [her] control[.]” I requested additional information about the nature
of her emergency. In a March 4 e-mail to both Local 2010’s counsel and myself, Polk said that
her travel expenses thus far have exceeded $350, that evidence from Local 2010’s case in chief
required an “unexpected investigation,” and that she was involved in other unidentified legal
matters with “unexpected deadlines beyond my control during the same time frame” as the
March 9 hearing date. Teamsters e-mailed its opposition to the continuance later that day. I
denied Polk’s continuance request on March 4, on the grounds that she knew about much of
the asserted grounds for her request when she agreed to the March 9 date, and did not
demonstrate an adequate unanticipated basis for moving the hearing.
Polk’s Failure to Appear on March 9
On Sunday, March 8, Polk e-mailed both Local 2010’s counsel and myself stating that
the car rental company she contracted with for transportation made a mistake that prevented
3

her from attending the March 9 hearing. I replied to both sides that day, stating that Polk
should both attempt to make alternate arrangements for her appearance and be prepared to
prove the statements made in her e-mail. Polk did not respond.
On March 9, at 11:00 a.m., I convened the hearing and opened the record. Counsel for
Local 2010 appeared with one witnesses, Daniel, and was prepared to proceed. Polk did not
appear. Counsel for Local 2010 stated that he was unaware of Polk’s March 8 e-mail message
until that morning. A PERB agent contacted Polk via telephone and she confirmed that she
would not appear.
Local 2010 then made four motions on the record. First, it moved to commence with its
case in chief without Polk, arguing that she did not adequately establish her unavailability and
had waived her right to challenge Local 2010’s remaining evidence. That motion was denied.
Second, Local 2010 moved to dismiss the case arguing that Polk’s absence amounted to a
failure to pursue the matter. Third, Local 2010 moved to dismiss the case based on Polk’s
failure to demonstrate a prima facie case for any HEERA violation during her case in chief.
Fourth, Local 2010 moved to have attorneys’ fees and costs assessed against Polk. Those
motions were taken under submission.
The March 9 Order to Show Cause
On March 9, I issued an Order to Show Cause (OSC) as to why the case should not be
dismissed due to Polk’s failure to prosecute the matter with due diligence. I directed Polk to
respond to the OSC by March 23. Local 2010’s brief would be due 10 days after Polk’s filing,
and Polk’s final brief would be due 5 days later. I also directed Local 2010 to reduce its
remaining motions, i.e., its alternative motion to dismiss the case and its motion for attorneys’
4

fees, to writing no later than March 23. Polk was directed to file her opposition to that filing
within 10 days with Local 2010’s reply brief due 5 days after Polk’s opposition.
Briefing Over the OSC and Local 2010’s Other Motions
Local 2010 filed its motion to dismiss for failure to state a prima facie case and its
motion for attorneys’ fees on March 23. According to the briefing schedule established in the
OSC, Polk’s opposition to those motions was due on April 2.
Polk filed her response to the OSC on March 30. According to the briefing schedule
established in the OSC, Local 2010’s brief was due on April 9. Polk asserted in her filing that
she attempted to rent a car on March 8, when she “noticed that the rental rate had increased
considerably” from the originally quoted rate and that she “was not prepared to pay the
considerably higher rate.” Polk stated that she declined that reservation but that the car rental
company nevertheless charged her credit card $173.48. Thus, according to Polk, she was
unable to rent a vehicle from a different provider.
Polk’s Requests to Extend the Briefing Schedule
Between April 1 and 30, Polk filed four requests to extend the remaining briefing
schedule regarding the motions pending at the time. Three of the four requests were for
medical reasons, namely physical limitations on Polk’s ability to type. Most were
accompanied by medical documentation of her limitations. Although several of those requests
did not comply with the timing requirements in PERB Regulation 32132, subdivision (c), I
extended both parties’ briefing schedules to accommodate Polk. Local 2010 was directed to
file its brief regarding Polk’s OSC response by April 20. Local 2010 complied with that
deadline. The deadline for all of Polk’s own remaining filings was extended until May 11. I
noted in a letter dated April 29, that I might order oral argument in lieu of briefing in order to
5

expedite resolution of the outstanding issues in this case without exacerbating Polk’s medical
condition. Neither side objected.
Polk did not file any of her briefs on May 11. A week later, on May 18, Polk filed a
document entitled “Ex Parte Motion to Stay, Motion for Tolling, Motion for Continuance,”
where she requested to postpone all activity in the case until July 1 due to what she described
as an “unanticipated physical and economic disability.” Unlike with prior requests, this filing
had no supporting documents, such as a physician’s statement outlining Polk’s physical
limitations.
The May 22 Order
I issued an Order on all the pending motions on May 22. In that Order, I treated Polk’s
May 18 filing as a request to further extend her remaining filing deadlines. I denied that
request as both late and without sufficient support. Because Polk’s filing deadlines had already
passed, I further determined that briefing on the pending matters was closed. I then denied
Local 2010’s motion to dismiss for failure to state a prima facie case and its motion for
attorneys’ fees and costs.
Regarding the motion to dismiss the case for failure to prosecute the matter with due
diligence, I found that Polk did not establish “good cause” for failing to appear on March 9.
Those findings will be discussed in more detail below. I nevertheless stated that Local 2010’s
motion would remain under submission because I was not fully convinced that Polk
demonstrated a failure to prosecute the matter. I then directed that the formal hearing should
be re-calendared. To that end, I ordered the parties to meet and confer over a mutually
agreeable hearing date. I stated that, if the parties could not agree upon a date by June 1, then I
would unilaterally calendar the hearing for July 13. I also stated that any further continuances
6

________________________
would only be entertained only “under the most extraordinary of circumstances.” (emphasis
in original). I sent the Order by e-mail and regular mail with a standard proof of service form.4
The Scheduling of the July 13 Hearing Date
Having not heard from either party over the results of any meet and confer efforts, on
June 9, I directed that the hearing be scheduled for July 13. In a letter included with the notice
of formal hearing, I stated that closing arguments in the case would be handled orally at the
end of the hearing so as not to exacerbate Polk’s medical condition.
Polk’s Request to Continue the July 13 Hearing
On June 24, Polk e-mailed both Local 2010's counsel and myself, requesting to
continue the July 13 hearing date, because she was facing “several critical matters that were
consuming [her] entire time and resources.” I responded to both parties via e-mail, stating that
any request to continue the hearing should comply with PERB Regulations. I also encouraged
Polk to be as specific as possible in any continuance request.
On July 7, Polk filed a request to continue the hearing until December. She asserted
three justifications for the request. First, Polk stated that there were “several dire situations”
affecting the “safety and well being” of herself and her dependents. She was unwilling to
provide more specific information for privacy reasons. Second, Polk asserted that a “critical
witness” could not attend the hearing. Third, Polk stated that she could not participate in the
hearing without certain documents, including the transcripts from the prior days, which she did
not possess at the time. Local 2010 opposed the request. On July 9, I denied Polk’s
continuance request. In doing so, I concluded that her first asserted basis lacked specificity
All documents sent by mail in this case were sent to the address listed by Polk in her
charge documents, along with a standard proof of service form. Polk confirmed the accuracy
of that address in her March 30 response to the OSC.
4
7

________________________
and that it was unclear why she could not provide greater detail without compromising what
she believed were privacy rights. I further concluded that her second and third reasons were
issues she could have anticipated and addressed earlier, noting that the parties had the chance
to discuss scheduling during the meet and confer period in May. I noted that Polk had an
adequate amount of time to order or review the transcripts in this case and to subpoena or
otherwise secure the availability of her witnesses.
5
The July 10 Telephone Conference
On July 10, at around 3:30 p.m., the parties and I participated in a conference call, at
Polk’s request, to discuss Polk’s continuance request. During the conference, both parties
admitted to not complying with my May 22 meet and confer Order. I then gave the parties the
opportunity to discuss scheduling, including agreeing to an alternative to the July 13 hearing
date, but the parties were unable to agree upon a new date. Polk stated that she had additional
information justifying her need for a continuance but was reluctant to discuss it because of the
personal nature of that information. She then discussed some of her personal circumstances
with the understanding that what she revealed said would remain private. At the conclusion of
the call, Local 2010 remained opposed to Polk’s continuance request. I declined to continue
the hearing. No transcript was made of the conference call.
E-Mail Activity Prior to the July 13 Hearing
After the conference call, at around 8:00 p.m., Polk e-mailed both Local 2010’s counsel
and myself requesting that I notify her if I intended on disclosing any of the details from the
telephone conference publicly. At around 11:42 p.m., I responded to both parties stating that,
at the time, I did not intend on discussing the subjects of our conference call further unless
I provided Polk with multiple forms for Polk to order copies of the transcript and have
offered to allow Polk to review PERB’s own copies multiple times.
5
8

those subjects became issues later in the case. I further stated that I would give Polk the
opportunity to state her position if I later decided disclosure was necessary.
On Sunday, July 12, at around 8:08 p.m., Polk e-mailed both Local 2010’s counsel and
myself, stating that she found someone willing to help transport her to the hearing and would
appear by 10:00 a.m., the scheduled start time.
On Monday, July 13, at around 8:16 a.m., Polk e-mailed Local 2010’s counsel and
myself. The content of the message was preceded by the phrase “Off the record.” The parties
and I had not previously reached any mutual understanding about the confidentiality of Polk’s
e-mail communications. Polk stated, in relevant part, that she had a “job assignment that is
scheduled for this week, including today.” Polk then asked if she could appear for the hearing
via video conference. I responded to both parties stating that I was not opposed to a video
appearance, but that the parties needed to provide the necessary technology, as PERB does not
possess any such equipment. In an e-mail to both parties at 8:54 a.m., I asked Polk whether
she intended on appearing for the hearing. At 9:55 a.m., Polk e-mailed Local 2010’s counsel
and myself, stating that she was in a hospital emergency room “due to an allergic reaction to a
drug that I was given last night. I am going for a procedure.”
The July 13 Hearing
Local 2010 again appeared at the hearing at the scheduled time and place and was again
ready to proceed with the remainder of its case in chief. Polk did not appear and the hearing
was convened in her absence. I summarized the above-referenced events and e-mails for the
record. Local 2010 made a second motion to dismiss the case for failure to prosecute the
matter with due diligence. Local 2010 also moved for sanctions in the form of attorneys’ fees
9

and costs for its appearance that day. Those motions were taken under submission and the
hearing was adjourned for the day.
The July 13 Order for Oral Argument
Later in the day, on July 13, I issued the parties an Order Re: Oral Argument. In that
document, I directed that the parties participate in an oral argument over the three pending
motions, i.e., (1) Local 2010’s motion to dismiss after Polk’s non-appearance on March 9; (2)
Local 2010’s motion to dismiss after Polk’s non-appearance on July 13; and (3) Local 2010’s
motion for attorneys’ fees and costs for its appearance on July 13. I scheduled the oral
argument for July 21. I suggested in the Order that Polk provide documents supporting her
assertion that she was receiving emergency medical care. I directed that that the parties
provide PERB with any documents in support of the argument no later than July 20. I also
informed the parties that I anticipated discussing some of the content from both the July 10
conference call and e-mails labeled by Polk as “Off the record.” I also stated that Polk would
have the opportunity to state her position on disclosure of that content. Finally, I gave both
parties the option of participating in the argument via telephone.
The July 13 Order was sent to the parties by both e-mail (as an attachment) and by
regular mail with a standard proof of service form. In addition, I included all the salient details
referenced above, including the July 20 deadline for providing documents, in the body-text of
the e-mail I sent to the parties.
On July 15, at around 9:33 a.m., Polk replied to my July 13 e-mail, with a copy to Local
2010’s counsel. Polk stated in her reply that she could not open the attachments included with
my e-mail. Immediately below the text of her reply was the body-text of my July 13 e-mail,
including my reference to the July 20 deadline. Polk did not either dispute receiving my July
10

13 e-mail or assert that she could not read the actual text of that message. At around 1:27 p.m.,
I replied to both parties and included the full text of the July 13 Order Re: Oral Argument in
the body of the e-mail itself. I also warned Polk to read the content of the e-mail carefully as it
contained important deadlines. My response did not include any attachments.
On July 16, both parties expressed their interest in participating in the oral argument by
telephone. At around 12:15 p.m., Polk e-mailed Local 2010’s counsel and myself, again
stating that she could not open the attachment I sent to her. Polk also requested information
about how to participate in the oral argument by telephone. She also stated that she was no
longer able to communicate via e-mail because her computer had recently intercepted a virus.
At around 12:39 p.m., I left Polk a voice-mail message explaining how the oral argument
would proceed and that the matter would be recorded and transcribed. I memorialized the
content of that voice-mail in an e-mail to both parties that day.
On July 17, at around 12:37 p.m., I left Polk another voice-mail message indicating that
I intended on referring to e-mail communications from July 10 until the present time as part of
the oral argument. I stated in the message that she should be in possession of all of the
messages I identified, but that she could contact me if she wanted any copies. I memorialized
the content of that voice-mail in an e-mail to both parties and offered Local 2010 the same
opportunity to request copies of the relevant e-mails. Later that day, Polk contacted me via
telephone. During the call, Polk confirmed receipt of my voice-mail messages from July 16
and 17 and requested to continue the July 21 oral argument. I conducted an impromptu
conference call with Polk and counsel for Local 2010 and the parties agreed to move the oral
argument to July 23.
11

________________________
On July 17, Local 2010 filed a declaration by its legal counsel in support of its motion
for attorneys’ fees and costs. The declaration specified the time and other expenses incurred
by Local 2010’s counsel for his appearance on July 13. The declaration also asserted what he
believed was a reasonable billing rate for his time based on his experience. Polk did not
provide or identify any documents she planned on using for the oral argument by the July 20
deadline.
On July 21, Polk left me a voice-mail message requesting to further continue the oral
argument because there was flooding at her home, affecting her access to electricity. I granted
that request over Local 2010’s opposition and the matter was continued to July 31, at 1:00
p.m., a date suggested by Polk. I provided the parties with notice of the continuance via
telephone, e-mail, and regular mail, with a standard proof of service form. I also provided the
parties with copies of all the e-mail messages I referred to in my July 16 voicemail to Polk and
subsequent e-mail to both parties. Neither side had requested the documents, but I determined
that doing so would help facilitate our discussion. For ease of reference, I organized all of the
e-mail messages in chronological order, starting with the most recent, and hand-numbered the
pages, 1 through 30.6
Polk’s July 30 Motions
On July 30, at 4:31 p.m., Polk filed a motion “For Order Compelling Response to
Demand for Production, Inspection, Copying” of information Polk had previously requested
from Local 2010. She also requested sanctions for Local 2010’s non-compliance with her
earlier requests for that information. The motions are premised on Polk’s belief that she is
The parties and I subsequently agreed that certain aspects of Polk’s e-mails bearing
the label “Off the record:” would not be publicly disclosed. Pursuant to that agreement, I have
redacted all the portions the parties agreed not to discuss from PERB’s official copies of those
e-mails.
6
12

________________________
entitled to information prior to the PERB hearing under provisions in the Administrative
Procedures Act (APA),7 namely APA Section 11507.6.
The July 31 Oral Argument
On July 31, both parties participated in the scheduled telephonic oral argument over all
the pending motions. Pursuant to my authority under PERB Regulation 32170, I gave the
parties limited but equal time periods from which to provide their supporting arguments.8
Before argument began, the parties and I discussed how to handle the information from our
July 10 conference call and from the portions of Polk's July 13 e-mails labeled “Off the
record.” We agreed that we would only consider the following facts: (1) that neither party
complied with my May 22 meet and confer Order; (2) that Polk had referred to a job obligation
on July 13; and (3) that Polk had requested to appear on July 13 via video conference.
During argument, Local 2010 reasserted its position that Polk did not have good cause
for her non-appearance at the March 9 hearing. It also maintained that Polk’s explanation for
her absence on July 13, lacked credibility, was contradictory, and was not supported by any
documents. Local 2010 further asserted that it detrimentally relied upon Polk’s representations
that the July 13 hearing would go forward and that sanctions should therefore be awarded.
Regarding Polk’s motions, Local 2010 asserted that Polk did not follow PERB’s process for
the production of documents at hearing.
7 The APA is codified at Government Code, section 11340 et seq.
Each party had 12 minutes for its initial argument, followed by a 10-minute rebuttal
period. Local 2010 went first. Polk had an approximately 50-minute break before providing
her closing remarks in response to all of Local 2010’s arguments. The parties’ actual argument
period exceeded these deadlines because of questions I had and because of statements Polk
made after her allotted time ended.
8
13

Polk argued that both her March 9 and July 13 absences were caused by circumstances
beyond her control and that she remained committed to pursuing this case on the merits.
Regarding the July 13 hearing date, Polk said that she had to visit the emergency room on the
way to the hearing. She told her treating physician that she “had somewhere [she] had to be,”
but declined to explain herself to him further. She said her physician believed that all she
required was a release to return to work and then directed her to undergo a medical procedure
to alleviate her symptoms.
Polk argued that Local 2010’s failure to produce the documents she requested, in
conjunction with the false testimony of its witness, and the “hiding” of another witness,
hindered Polk’s ability to pursue this case.
Regarding her failure to discuss scheduling pursuant to my May 22 Order, Polk said
that she was waiting to hear about developments in the case, but “had to go away
unexpectedly,” when my May 22 Order issued. She did not elaborate.
Regarding the July 20 deadline for producing documents in support of the oral
argument, Polk originally argued that she was not informed of the deadline until after it had
already passed. She requested leave to file the documents late, which I denied due to her
failure to establish good cause. The oral argument was recorded for the purposes of
transcription, but as of the date that this proposed decision issued, neither party submitted an
order for a copy of the transcript. At the end of the oral argument, I informed the parties that
the record was closed, under further notice, and that the matter of all the pending motions was
considered submitted for decision.
14

ISSUES
1. 	Should the charge and complaint be dismissed based on Polk’s failure to pursue
the matter with due diligence?
2. 	Should PERB order Polk to pay Local 2010’s attorneys’ fees and costs for her
non-appearance on July 13?
3. 	Should PERB order Local 2010 to produce documents requested by Polk,
pursuant to APA Section 11507.6? If so, should PERB sanction Local 2010 for not producing
those documents earlier?
CONCLUSIONS OF LAW
1. 	Motions to Dismiss for Failure to Prosecute With Due Diligence
a. 	Legal Standards Relevant to Local 2010’s Motions
As explained in the March 9 OSC, PERB ALJs have discretionary authority to dismiss
a case for lack of prosecution with due diligence based on delays in the case, absent a showing
of “good cause.” (City of Inglewood (Smith) (2015) PERB Decision No. 2424-M, p. 13, fn.
23; State of California (Department of Corrections) (2006) PERB Decision No. 1806-S
(Department of Corrections), pp. 5-6.) PERB’s good cause analysis weighs the charging
party’s asserted reasons for the delays in the case against the length of the delays and the
potential for prejudice against the respondent. (Id. at p. 7, citing California State University
(1984) PERB Decision No. 468-H (CSU).) Typically, good cause only exists where the delays
or requested delays are based on circumstances that are either unanticipated or beyond the
charging party’s control. (Ibid.) Under that reasoning, the Board in California School
Employees Association (Petrich) (1989) PERB Decision No. 758, affirmed an ALJ’s dismissal
of a case after the charging party failed to appear at the formal hearing and offered no reasons
15

for his absence. (Id. at p. 3.) As the Board later found, PERB is “precluded from finding that
good cause exits,” where a party offers either no justification or only vague reasons for the
delay. (Compton Unified School District (2008) PERB Order No. Ad-374 (Compton USD), p.
4; Coachella Valley Unified School District (1998) PERB Order No. Ad-292 (Coachella Valley
USD), pp. 3-4 [non-specific “postal or clerical delay” was not a good cause justification for a
late filing]; see also State of California (Department of Insurance) (1997) PERB Order
No. Ad-282-S, p. 2.)
In Department of Corrections, supra, PERB Decision No. 1806-S, the Board declined
to find good cause for a six month delay in an individual’s prosecution of his case before an
ALJ. In doing so, the Board rejected the charging party’s assertion that his medical condition
limited his ability to pursue the case where he was able to file numerous other documents with
both his employer and with PERB during that time. (Id. at pp. 7-8; see also CSU, supra, PERB
Decision No. 468-H, pp. 3-4.) The Board also found unpersuasive the claim that he did not
receive necessary documents from PERB where the documents were sent to his correct address
through the mail with a standard proof of service form. The Board relied upon the generally
accepted rebuttable presumption that documents correctly addressed and properly mailed were
received by the addressee. (Department of Corrections, pp. 8-9, citing Evid. Code, §§ 604,
641; Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416.) The Board accordingly
affirmed the ALJ’s decision to dismiss the case. (Ibid.; but see Washington Unified School
District (1985) PERB Decision No. 549 [finding that the parties’ agreement to hold a case in
abeyance until related and unsettled legal issues were resolved did not constitute a failure to
prosecute].)
16

In Service Employees International Union, Local 99, AFL-CIO (Kimmett) (1981) PERB
Decision No. 163 (Kimmett), the charging party failed to appear at a scheduled day of hearing
and refused to appear at future hearing dates until PERB entertained his request for sanctions
against the respondent. (Id. at proposed decision, pp. 3-4.) The charging party in that case was
warned that the “charge could be heard in the absence of one party, or other sanctions taken if
either of the parties again failed or refused to appear.” (Ibid.) After the charging party’s
sanctions request was resolved, the charging party again failed to appear at another day of
hearing. The ALJ dismissed the case based on the charging party’s failure to prosecute. (Id. at
proposed decision, pp. 5-6.)
In Los Angeles Unified School District (1984) PERB Decision No. 464 (LAUSD), the
charging party failed to appear at the fourth scheduled day of hearing. The hearing date was
rescheduled and PERB ordered that “absent extraordinary circumstances, no further
continuances or delays will be allowed.” (Id. at proposed decision, pp. 11-12.) The charging
party did not attend and the matter was dismissed for failure to prosecute. (Id. at proposed
decision, pp. 13-14.)
b. 	Polk’s Failure to Appear for Two Hearing Dates
In applying the above principles to Local 2010’s motions to dismiss this case, I find it
appropriate to consider the parties’ overall conduct to ascertain whether Polk has pursued this
case with the required due diligence. Here, as in both LAUSD, supra, PERB Decision No. 464,
and Kimmett, supra, PERB Decision No. 163, Polk failed to appear for multiple hearing days,
despite the warning that her failure to appear could result in dismissal. Polk has furthermore
not demonstrated good cause for her absence. Regarding her non-appearance on March 9, Polk
asserted that the company she contracted with for transportation increased its quoted rate for a
17

________________________
car rental and that she was “not prepared” to pay the higher rate. She said she could not rent a
car from a different company because the first company already erroneously charged her credit
card. 	In my May 22 Order, I rejected that Polk’s assertion that those facts demonstrated good
cause. In doing so, I found that Polk failed to demonstrate whether she was unable, or simply
unwilling, to pay the higher car rental rate.
9
Furthermore, Polk failed to adequately establish
that alternative transportation was unavailable. To the contrary, it appears from her
communications on March 8, that Polk had already concluded that the car rental issue alone
precluded her from attending the hearing. Although she said that she was unable to rent
another car for financial reasons, Polk did not adequately explain the extent to which she
explored other methods to attend the hearing.
10
Regarding her absence on July 13, Polk asserted that she could not appear because she
was in the emergency room due to an adverse reaction to medication. She said that she
requested to leave, but that her treating physician refused. I might have been more inclined to
accept these assertions as a good cause justification for her absence had this incident occurred
in isolation. However, in this case, Polk has a demonstrated history of requesting emergency
relief from PERB without substantiation or support (see e.g., the March 4 continuance request,
the May 18 Ex Parte Motion to Stay, Motion for Tolling, Motion for Continuance, and the July
7 continuance request). The same is true with Polk’s assertions here and her failure to provide
supporting documents for this claim weighs heavily against her assertion of good cause. Polk
During the oral argument, Polk stated that she had newly acquired evidence
supporting this assertion. She requested leave to provide that evidence. I deny that request as
I find it inconsequential to my determination of whether Polk’s overall conduct demonstrates a
lack of diligence in pursuing this case.
9
It is also worth noting that, on March 4, Polk asserted that her travel costs for her
appearance at the February 5-6 hearing dates was around $350, roughly double $173.48, the
incorrect rate Polk states she was quoted for her one-day appearance on March 9.
10
18

did not provide any documentary support for this claim by July 20, as I directed. Nor did she
seek to extend this deadline until after it had already passed. During the oral argument, Polk
argued that she was not informed of the July 20 deadline. I reject this assertion. As in
Department of Corrections, supra, PERB Decision No. 1806-S, the parties were informed of
this deadline through my July 13 Order, which was sent via regular mail with a standard proof
of service form, creating a presumption that Polk timely received the document. Polk
produced no evidence to rebut that presumption.
In addition, the parties were informed of the July 20 deadline in both the body-text and
the attachments from my July 13 e-mail. Polk clearly received this e-mail as Polk responded
on July 15, and the text of my message follows hers. Polk was again informed of the deadline
in the body-text of another e-mail from me, also from July 15. My reply expressly informed
the parties that the documents contained important deadlines.
Polk acknowledged overlooking the deadlines because she did not read my messages
carefully. She now requests leave to file those documents late. That request is denied. Under
PERB Regulation 32136, late filings may only be excused for good cause. And, as stated
above, good cause only exists when occasioned by circumstances that are either unanticipated
or beyond the party’s control. (Department of Corrections, supra, PERB Decision No. 1806-S,
p. 7, citations omitted.) In State of California (Water Resources Control Board) (1999) PERB
Order No. Ad-294-S, the Board rejected a party’s late-filed response to exceptions from an
ALJ’s decision. The Board was not persuaded by the filing party’s assertion that its attorney
“misread or failed to read PERB’s regulations and the chief ALJ’s letter.” (Id. at p. 5.) The
Board found that accepting the filing party’s argument would render PERB’s Regulations
concerning the “good cause” exception to accept late filings meaningless. (Id. at pp. 5-6; see
19

________________________
also Calipatria Unified School District (1990) PERB Order No. Ad-217, p. 11.) I find that the
same rationale applies here. Polk had undisputable notice of the July 20 deadline. She
admitted to not complying with the deadline because she did not read my communications.
She also admitted to knowing of the deadline before the July 31 oral argument, and yet she did
not request leave to file additional documents until her final remarks, after Local 2010 had
completed its argument in full. As I said during the oral argument, I do not find Polk’s mistake
to constitute good cause and her request to file additional material is denied. 	In addition, I
also conclude that Polk’s admitted lack of attention over the July 20 filing deadline, and her
failure to state her interest in filing additional documents earlier constitute additional evidence
that Polk was not pursuing this case with due diligence. After reviewing all the available
information and evaluating the parties’ claims, I conclude that Polk did not have a good cause
reason for failing to attend the July 13 hearing date.
11
c. 	Polk’s Other Conduct
While Polk vehemently insisted that she remains interested in pursuing and
adjudicating her case against Local 2010, I find that her overall actions in this case thus far
demonstrate otherwise. She was an hour late to the February 6 hearing date. Although Polk
originally agreed to appear for a third day of hearing on March 9, she later sought to continue
the matter based largely on circumstances that she was aware of or could have anticipated
while the parties were discussing scheduling. Furthermore, Polk sought multiple extensions to
After the record for the oral argument had closed, Polk also requested the opportunity
to file additional supporting documents that she did not have access to before the July 20
deadline. I denied her request because she did not raise that issue or make reference to those
documents at any point on the record after being informed that the oral argument was her
opportunity to raise all issues pertaining to the pending motions.
11
20

________________________
her briefing obligations, most of which did not comply with PERB Regulations. Despite the
fact that I granted most of Polk’s requests, she still failed to file her briefs on time.
Polk also admitted to ignoring my May 22 order to meet and confer over re-calendaring
the third and final hearing date. Her only explanation for this was that she “had to go away
unexpectedly,” without any further detail. As in Compton USD, supra, PERB Order No. Ad-
374, and Coachella Valley USD, supra, PERB Order No. Ad-292, Polk failed to provide an
adequate explanation for her failure to abide by this order, which precludes me from finding
that her actions were excused for good cause.12
d. 	Prejudice to Local 2010
I also conclude that the delays in this case have prejudiced Local 2010. Counsel for
Local 2010 traveled to PERB’s Los Angeles Regional Office from Local 2010’s location in
Oakland, California, twice to complete its case in chief. And as stated in my July 9 Order,
some of the claims in this case date back to events from 2011. The frequent and lengthy delays
in this case jeopardize the remaining witnesses’ ability to recall events with accuracy and to
locate documents and other relevant evidence. Polk already completed her case in chief on
February 6, and thus preserved the evidentiary record supporting her claims. Accordingly, any
disadvantages for the remaining witnesses caused by the significant delays here
disproportionately affect Local 2010’s case in chief.
e. 	Polk’s Arguments in Opposition to Dismissal
Polk asserted in oral argument that Local 2010 should essentially be estopped from
pursuing dismissal due to its own delays in the case. She pointed out that Local 2010 too did
Moreover, as in Department of Corrections, supra, PERB Decision No. 1806-S, Polk
filed documents with PERB as late as May 18. Polk said during oral argument that she was
awaiting further action from PERB, but she did not explain how she became unavailable to
participate in the meet and confer process just four days later.
12
21

________________________
not comply with my May 22 meet and confer Order and argued that Local 2010 therefore
waived its right to challenge the scheduling of the July 13 hearing date. 	I agree, but I also
find that Polk’s argument applies with equal force to her own inaction. Local 2010’s failure to
contact Polk first did not prevent her from initiating that process. Neither party pursued any
scheduling discussion even after being informed that their failure to do so would result in my
calendaring the matter unilaterally for July 13. I further informed the parties that once
scheduled, the hearing would only be continued further under extraordinary circumstances.
13
Polk also asserted that Local 2010 lengthened the hearing by providing false testimony
through one of its witnesses and by “hiding” another witness. These arguments lack support
and are ultimately unpersuasive. Polk had and used the opportunity to cross examine Local
2010’s only witness thus far in this case. There is insufficient information in the record to
conclude that the witness testified falsely and Polk provided no support for that assertion. Had
Polk attended the third hearing date, she would have had the opportunity to refute Local 2010’s
evidence in her case in rebuttal. Regarding the alleged “hiding” of a witness, neither party is
obligated to identify its witnesses prior to the time of their testimony. Moreover, the witness
that was allegedly hidden, Daniel, was present for at least part of the day on February 6. He
was also identified as Local 2010’s witness in both my March 9 OSC and in Local 2010’s
April 20 filing. Polk accordingly had sufficient notice that Daniel would testify for Local
2010. Once again, had Polk appeared for the third hearing day, she could have cross-examined
Local 2010 admitted to making no effort to meet and confer with Polk over
scheduling. During the July 10 conference call, counsel for Local 2010 represented that he did
not see the need to do so because Local 2010 was satisfied with having me schedule the
hearing unilaterally for July 13.
13
22

________________________
Daniel during Local 2010’s case in chief, and even called him her own witness in her case in
rebuttal.14
Finally, Polk asserts that her lack of legal expertise should not be held against her. I
recognize that the nuances of legal analysis and administrative procedure may sometimes be
challenging to grasp. (But see Charter Oak Unified School District (2011) PERB Decision
No. 2159, warning letter, p. 4 [holding that the failure to understand the legal significance of
one’s circumstances does not preclude dismissal].) However, I do not agree that Polk’s lack of
legal training excuses her actions because the conduct I find most troubling in this case does
not involve complex legal concepts. Rather, all parties to a PERB proceeding should be
expected to understand the importance of showing up to scheduled events, arriving on time,
reading documents carefully, and meeting deadlines. The extensive procedural history in this
case points to a prolonged lack of genuine effort by Polk to complete the hearing in this case.
She failed to appear at two days of hearing after having had the opportunity to participate in
scheduling both of those days. She also failed to establish good cause for either absence. Polk
was also more than an hour late to the February 6 hearing. She failed to abide by the briefing
schedule for consequential issues in her case, and ignored my order to meet and confer over
scheduling without providing a specific justification.
In reviewing all of the parties’ conduct, I conclude that Polk has not pursued this case
with due diligence and that her absences without good cause and other lengthy delays have
harmed Local 2010. Accordingly, Local 2010’s motion to dismiss the case for failure to
prosecute is GRANTED and the charge and complaint in this case are both DISMISSED.
14 Polk did not subpoena Daniel or any other witness in this case.
23

2. 	Local 2010’s Motion for Attorneys’ Fees and Costs
Local 2010 also filed a motion to have its attorneys’ fees and costs for its appearance
on July 13 assessed against Polk. In Omnitrans (2010) PERB Decision No. 2143-M, the Board
found that an attorneys’ fees award against a party is only appropriate when the opposing
party’s conduct was “without arguable merit and pursued in bad faith.” (Id. at p. 8.) In that
case, PERB denied an attorneys’ fees request where the charging party’s counsel traveled from
San Francisco to Los Angeles for a settlement conference but the respondent’s counsel failed
to appear. (Id. at proposed decision, pp. 18-19.) PERB declined to infer bad faith from the
respondent’s single non-appearance. (Ibid.) On the other hand, repetitive indefensible
misconduct may justify an attorneys’ fees award in the future. (United Teachers of
Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453, p. 3, citing Modesto City
Schools and High School District (1985) PERB Decision No. 518.) An attorneys’ fees award
is typically reserved for particularly egregious conduct such as lying under oath about the
fundamental basis for the case. (City of Alhambra (2009) PERB Decision No. 2037-M, p. 3.)
In this case, for the reasons articulated above, I conclude that Polk’s asserted reason for
her absence on July 13 was unsupported and lacks arguable merit. However, I am not
persuaded by Local 2010’s arguments that Polk’s absence was also for bad faith reasons. It is
true that she offered no documentary support for her absence and that she also assured Local
2010, as late as July 12, that she would appear. That said, I am reluctant to ascribe what I
believe is a lack of genuine effort to pursue this case diligently with intentional misconduct. I
do not condone Polk’s behavior in this case, but I also find that her conduct was not so
egregious as to justify sanctions. For that reason, Local 2010’s motion is DENIED.
24

3. 	Polk’s Motion to Compel the Production of Information and Motion for Sanctions
Polk’s motion to compel Local 2010 to produce documents is also DENIED for at least
three reasons. First, the motion is moot because I have already determined that this case
should be dismissed due to Polk’s failure to prosecute the matter with due diligence. Even
assuming Local 2010 had some obligation under the APA to produce documents in advance of
the PERB hearing, its failure to meet that obligation does not excuse Polk’s failure to pursue
this case. As this case has been dismissed, I conclude that any right Polk had to receive
documents from Local 2010 has been extinguished.
Second, Polk raised this issue during the February 5 hearing date. During that time,
Local 2010 stated that it would have responded to any subpoena served by Polk in compliance
with PERB Regulation 32150. At that point, Polk appeared to agree that PERB’s regulations
were the proper avenue for producing her requested documents and even suggested that she
would attempt to subpoena the documents at issue. Until her July 30 motion, Polk did not
inform either Local 2010 or PERB that she believed she was entitled to those documents
through another means. I interpret Polk’s decision to raise this issue now, when no hearing
dates are calendared, as merely an attempt to delay the proceedings in this case.
Third, Polk’s motions are premised on the assertion that the APA’s hearing procedures,
commencing at Government Code section 11500, apply to PERB unfair practice charge
hearings. However, Government Code section 11501 states that that those procedures apply
only to agencies either created after 1997, or whose governing statutes expressly apply the
APA’s hearing procedures. PERB fits neither qualification. PERB was established in 1975
and assumed jurisdiction over HEERA in 1979. (Anderson v. California Faculty Assn. (1994)
25 Cal.App.4th 207, pp. 211-212; Banning Teachers Assn. v. PERB (1988) 44 Cal.3d 799, p.
25

________________________
804.) Moreover, in HEERA section 3563, the Legislature empowered PERB to create its own
rules and regulations over matters, including those covering the production of witnesses,
documents, and other records. Nothing in HEERA states that the APA Section 11500 et seq.,
applies to PERB unfair practice charge hearings. 	In interpreting Government Code section
3541.3, which is identical to HEERA section 3563 in all relevant ways, the Board expressly
held that the procedures contained in Government Code section 11500 et seq., do not apply to
PERB unfair practice charge hearings. (City of Torrance (2009) PERB Decision No. 2004, p.
8, fn 7; see also 25 Cal.L.Rev.Comm. Reports 55 (1995);
15
West’s Ann. Gov. Code (1995 ed.
& 2012 supp.) foll. § 3563.) Thus, Polk’s assertions that Local 2010 violated Government
Code 11507.6 are unpersuasive because those sections do not apply here. As to the assertion
that she was entitled to the same information under PERB Regulations, I conclude that Polk
did not comply with PERB Regulation 32150, governing subpoenas for witnesses and
documents at PERB hearings. For that reason, both of Polk’s motions are DENIED.
16
HEERA section 3563 does specify that Title 2, Division 3, Part 1, Chapter 4.5, of the
Government Code applies to PERB unfair practice charge hearings. Government Code Section
11500 et seq., commences in Chapter 5.
15
In commentary about the 1995 amendments to HEERA section 3563, the authors in
this document state:
16
Although Section 3563 is silent on the question, the formal
hearing provisions of the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code) do not apply to proceedings of
the Public Employment Relations Board under this chapter. Cf.
Gov’t Code § 11501 (application of chapter)
26

PROPOSED ORDER
Based upon the foregoing motions, findings of fact, conclusions of law, and the entire
record in this matter, the complaint and underlying unfair practice charge in Case No.
LA-CO-528-H, Debbie Polk v. Teamsters Clerical, Local 2010, are hereby DISMISSED. All
other motions filed by the parties are DENIED.
Right to Appeal
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered “filed” when received by facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet
which meets the requirements of California Code of Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
27

number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
28