State of California, et al. (PERB A377S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
MICHAEL M. BURNETT,
Charging Party,
V.
SEIU LOCAL 1000,
Respondent.
Case No. SA-CO-368-S
Administrative Appeal
PERB Order No. 	Ad-377-S
February 25, 2009
MICHAEL M. BURNETT,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
GENERAL SERVICES),
Res ondent.
Case No. SA-CE-1634-S
MICHAEL M. BURNETT,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
GENERAL SERVICES AND DEPARTMENT OF
HOUSING AND COMMUNITY
DEVELOPMENT),
Respondents.
Case No. SA-CE-1626-S

MICHAEL M. BURNETT,
Charging Party,
V.
SEIU LOCAL 1000,
Respondent.
Case No. SA-CO-367-S
Appearances: Alex Sandoval, Representative, for Michael M. Burnett; Paul E. Harris III,
Chief Counsel, for SEIU Local 1000; State
of
California (Department
of
Personnel
Administration) by Ronald R. Pearson, Legal Counsel, for State
of
California (Department
of
General Services and Department
of
Housing and Community Development).
Before McKeag, Rystrom and Dowdin Calvillo, Members.
DECISION
RYSTROM, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by Michael M. Burnett (Burnett)
of
dismissals by Board agents
of
four unfair practice charges. Two
of
the dismissed charges alleged violations
of
the Ralph C.
Dills Act (Dills Act)1 by SEIU Local 1000 (Local 1000), Case Nos. SA-CO-367-S and
SA-CO-368-S. The remaining two charges alleged violations
of
the Dills Act by the State
of
California (Department
of
General Services and Department
of
Housing & Community
Development) (State), Case Nos. SA-CE-1626-S and SA-CE-1634-S.
Burnett filed two appeals
of
these dismissals, both
of
which are based on the failure
of
the Board agents dismissing the cases to disqualify themselves. We have found that the first
appeal, the February 3, 2008 affidavit filed on February 4, 2008 (February 3, 2008 affidavit),
must be dismissed as to all cases for Burnett's failure to comply with PERB regulations
delineating the procedural steps a party must take to disqualify a Board agent. The second
1The Dills Act is codified at Government Code section 3512 et seq.
2

appeal, which is the February 14, 2008 "Appeal for Special Permission to Appeal the Decision
of Board Agents" (February 14, 2008 appeal), is dismissed as to Case Nos. SA-CO-368-S and
SA-CE-1634-S because of untimeliness. The February 14, 2008 appeal is dismissed as to Case
Nos. SA-CO-367-S and SA-CE-1626-S for failure to comply with PERB's procedural
requirements for disqualification of Board agents.
BACKGROUND
Unfair Practice Charges and Dismissals
Case No. SA-CO-367-S (Burnett v. SEIU Local 1000) 2
Burnett alleged in his first amended charge that Local 1000 had breached its duty of fair
representation by failing: 	to process grievances filed by Burnett; to communicate with Burnett
regarding these grievances; and to set up a telephone conversation. The amended charge also
alleged that Burnett was excluded from "SBAC meetings"3 and was not granted union leave.4
This unfair practice charge was dismissed by letter dated January 24, 2008, because it failed to
state a prima facie case that Local 1000 violated Burnett's rights under the Dills Act.
Case No. SA-CO-368-S (Burnett v. SEIU Local 1000)
The original charge alleged that Local 1000 breached its duty of fair representation by
failing to file a charge against the State on behalf of Burnett. In a warning letter dated
December 19, 2007, Burnett was informed that the charge failed to state a prima facie
The original charge was also filed against California State Employees Association
(CSEA) and the United Auto Workers Local Union 2350 (UAW). In his December 5, 2007
warning letter the Board agent dismissed the allegations against CSEA and UAW on the basis
that they are not the exclusive representatives of the charging party.
3The amended charge did not specify what "SBAC meetings" were.
4The allegations do not explain how what involvement, if any, Local 1000 had in the
alleged failure to grant union leave.
3

violation. Burnett failed to timely file an amended charge resulting in a dismissal
of
the unfair
practice charge on January 8, 2008, for the reasons contained in the warning letter.
Case No. SA-CE-1626-S (Burnett v. State
of
California (Department
of
General
Services and Department
of
Housing & Community Development))
Burnett's amended charge alleged that the State failed to bargain in good faith with
Burnett and Local 1000. The Board agent dismissed this unfair practice by letter dated
January 24, 2008, for failure to state a prima facie case.
Case No. SA-CE-1634-S (Burnett v. State
of
California (Department
of
General
Services))
The amended charge in this case alleged that the State violated the Dills Act by
delaying the scheduling
of
meetings and bypassing an employee's chosen representative to
discuss the resolution
of
a grievance. By letter dated January 10, 2008, the unfair practice
charge was dismissed for failure to state a prima facie case, Burnett's lack
of
standing to file
unilateral change violations, and because the charge alleged violations outside
of
the Dills
Act's six-month statute
of
limitations.
Burnett's Appeals
1. 	February 3, 2008 Affidavit Appeal
On February 4, 2008, Burnett faxed filed his February 3, 2008 affidavit regarding Case
Nos. SA-CO-367-S, SA-CO-368-S, SA-CE-1626-S and SA-CE-1634-S. He was informed by
PERB on February 4, 2008, that this affidavit would be handled by the Board and could be
used as his appeal.
4

This affidavit was limited to requesting that in accordance with PERB
Regulation 32155,5 the Board agents who dismissed Burnett's referenced charges should have
recused themselves and that PERB 's General Counsel should recuse herself from dealing with
any of Burnett's cases.
2. 	February 14, 2008 Appeal
On February 14, 2008, Burnett filed an appeal for special permission to appeal the
decision of Board agents regarding Case Nos. SA-CO-367-S, SA-CO-368-S, SA-CE-1626-S
and SA-CE-1634-S. This appeal was also limited to arguing that the Board agents dismissing
Burnett's unfair practice charges should have disqualified themselves.
Local l00O's Opposition to Burnett's Appeals of Case Nos. SA-CO-367-S and SA-CO-368-S
Local 1000 contends that the charges in Case Nos. SA-CO-367-S and SA-CO-368-S
were properly dismissed for failure to state a prima facie case.
State's Opposition
The State contends Burnett's appeal of Case No. SA-CE-1626-S should be denied
because it is vague and uncertain, fails to comply with PERB Regulation 32635, and fails to
address the November 15, 2007 position statement by the State submitted to the Board agent.
Burnett's February 14, 2008 appeal of Case No. SA-CE-1634-S is challenged by the
State as being untimely pursuant to PERB Regulation 32635(a). The State also argues that the
appeal does not refute arguments made in the State's December 6, 2007, position statement and
that instead of refuting the basis of the dismissal, Burnett argues on appeal that the unfair
practice charge was improperly dismissed because the Board agent was unduly influenced by
another Board agent assigned to other charges filed by Burnett.
5PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
5

DISCUSSION
1. 	February 3, 2008 Affidavit Appeal
Burnett's February 3, 2008 affidavit is timely as to the four cases it purports to be
appealing: 	Case Nos. SA-CO-367-S, SA-CO-368-S, SA-CE-1626-S and SA-CE-1634-S.6
Therefore, we address Burnett's arguments that the Board agents who dismissed these charges
should have been disqualified in accordance with PERB Regulation 32155.
PERB Regulation 3215 5 sets forth the procedures for disqualification of a Board agent.
Subsection (c) of PERB Regulation 32155 provides that any party may request the Board agent
to disqualify himself or herself but that such request shall be in writing, under oath and shall
specifically set forth all the facts supporting it. 7 In order to file an appeal based on a Board
agent's failure to disqualify himself or herself, this written request must first be made to the
Board agent. (PERB Reg. 32155(c) and (d).)
Although it is questionable that Burnett intended his affidavit to be an appeal, the
PERB Appeals Office informed Burnett he could use his letter affidavit as an appeal if he
provided a proof of service. He did so on February 14, 2008. We therefore consider this filing
as an appeal.
7PERB Regulation 32155(c) provides, in pertinent part:
Any party may request the Board agent to disqualify himself or
herself whenever it appears that it is probable that a fair and
impartial hearing or investigation cannot be held by the Board
agent to whom the matter is assigned. 	Such request shall be
written or if oral, reduced to writing within 24 hours of the
request. The request shall be under oath and shall specifically set
forth all facts supporting it. 	The request must be made prior to
the taking of any evidence in an evidentiary hearing or the actual
commencement of any other proceeding.
If such Board agent admits his or her disqualification, such
admission shall be immediately communicated to the General
Counsel or the Chief Administrative Law Judge, as appropriate,
who shall designate another Board agent to hear the matter.
6

Burnett claims on appeal that his letters- dated October 30, 2007, to the Board regarding
Case Nos. SA-CO-367-S and SA-CE-1626-S and his November 16, 2007 response to
Local
l000's
position statement in Case No. SA-CO-367-S requested that the Board agent in
those cases disqualify himself. 8
Our review
of
the October 30, 2007, letter to the Board provided by Burnett on appeal
indicates it does not comply with PERB Regulation 32155(c) because it is not under oath.9
Burnett's November 16, 2007, response to Local I0O0's position statement suffers from the
same deficiency.
Burnett does not assert that he made any written requests pursuant to PERB
Regulation 32155(c) in Case Nos. SA-CO-368-S and SA-CE-1634-S.
Based on these facts, we find that Burnett has failed to follow the procedures in PERB
Regulation 32155(c)
as
to each
of
his dismissed charges. Accordingly, we dismiss Burnett's
February 3, 2008, affidavit appeal.
2. 	February 14, 2008 Appeal
Burnett's February 14, 2008, appeal
of
the dismissals in Case Nos. SA-CO-367-S,
SA-CO-368-S, SA-CE-1626-S and SA-CE-1634-S states that it is based on Burnett's
February 3, 2008 affidavit discussed above. This affidavit, along with the October 30, 2007
letter and the November 16, 2007 response are provided with the February 14, 2008 appeal. 	In
addition to the grounds stated in his February 3, 2008 affidavit appeal, Burnett contends that
the Board agents in these cases deliberately ignored everything Burnett presented to them, that
8Burnett has provided copies of these letters as attachments stapled to his February 14,
2008 appeal.
9We need not address whether the letter meets the other requirements of PERB
Regulation 32155(c) given this failure.
7

they acted with affinity towards the representatives of the State and Local 1000, and that the
Board agents displayed a rude behavior and demeanor towards Burnett. The remainder of the
appeal is devoted to criticism of PERB and accusations against the State and Local 1000 not
related to the dismissals of Burnett's unfair practice charges.
This appeal is untimely as to Case Nos. SA-CO-368-S and SA-CE-1634-S. PERB
Regulation 32635 requires that an appeal of a dismissal must be filed within twenty days of
service of the dismissal. PERB Regulation 32130 allows an extension of five days to respond
to dismissals served by mail. The dismissals in these cases were served by mail on January 8
and 10, 2008, respectively, therefore Burnett's deadline to file his appeal was February 4,
2008, in both cases. Accordingly, his February 14, 2008 appeal of these cases is untimely.
The February 14, 2008, appeal in Case Nos. SA-CO-367-S and SA-CE-1626-S is
timely filed. 10 However, it is dismissed because Burnett has failed to comply with PERB
Regulation 32155( c) as discussed above regarding Burnett's February 3, 2008 affidavit appeal:
i.e., Burnett's failure to request in writing, under oath, that the Board agent in these cases
should disqualify himself. PERB Regulation 32155(d) does not allow an appeal on the basis of
a Board agent's failure to disqualify himself or herself without the party first seeking
disqualification of the Board agent as delineated in PERB Regulation 3215 5(c ).
10The February 14, 2008 appeal was filed within 20 days of the dismissals in
Case Nos. SA-CO-367-S and SA-CE-1626-S and before responses were filed by Local 1000 or
the State. PERB Regulation 32635 does not address whether a party can supplement the
arguments made in its appeal if such supplemental filing is within the 20 days allowed to
appeal and does not contain any new evidence. 	Given the written representations by PERB to
Burnett that he could file an appeal in addition to his February 3, 2008 affidavit in Case
Nos. SA-CO-367-S and SA-CE-1626-S, we will review Burnett's February 14, 2008 appeal on
the merits.
8

For the above reasons, we hold that the February 3, 2008 affidavit appeal and the
February 14, 2008, appeal in Case Nos. SA-CO-367-S, SA-CO-368-S, SA-CE-1626-S and
SA-CE-1634-S are dismissed.
ORDER
The unfair practice charges in Case Nos. SA-CO-367-S, SA-CO-368-S,
SA-CE-1626-S, and SA-CE-1634-S, are hereby DISMISSED WITHOUT LEAVE TO
AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
9