California School Employees Association (Pintor) (PERB A440E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD FALLFORNIL
PABLO FELIX PINTOR,
Charging Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Respondent.
Case No. LA-CO-1651-E
Administrative Appeal
PERB Order No. Ad-440
June 22, 2016
Appearances: Pablo Felix Pintor, on his own behalf; Sonja J. Woodward, Staff Attorney, for
California School Employees Association.
Before Winslow, Banks, and Gregersen, Members.
DECISION
GREGERSEN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Pablo Felix Pintor (Pintor) from an administrative
determination by the PERB Appeals Assistant that Pintor’s appeal of the dismissal by the
Office of the General Counsel (OGC) of his unfair practice charge was untimely.
We have reviewed the Appeals Assistant’s administrative determination and the entire
record as a whole and conclude that Pintor’s appeal of the OGC’s dismissal of his charge was
properly dismissed because Pintor failed to provide an appropriate proof of service with his
appeal of the OGC dismissal as required by PERB Regulations.1
PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. and may be found at
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www.perb.ca.gov.

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PROCEDURAL HISTORY
On April 20, 2015, Pintor filed an unfair practice charge alleging that the California
School Employees Association (CSEA) violated the Educational Employment Relations Act
(EERA or Act) 	by mishandling his salary, seniority, and longevity pay claims against his
employer, the Pomona Unified School District (District).
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On September 10, 2015, the OGC issued a warning letter, notifying Pintor that the
charge failed to state a prima facie case. Pintor was invited to amend his charge to correct
certain factual inaccuracies contained in the warning letter and/or to provide additional facts to
correct the charge deficiencies outlined in the warning letter. On September 28, 2015, Pintor
attempted to file additional documents in an attempt to amend his unfair practice charge, but
the filing was not in accord with PERB Regulation 32615 	because there was no signature
under penalty of perjury, no copy of the charge, no name or contact information for Pintor, no
name or address of CSEA, and no completed proof of service showing that CSEA had been
served with a copy of the documents. A “Filing Deficiency Letter” was sent to Pintor on
October 20, 2015, by the OGC. After receiving no response, the OGC then dismissed the
charge on November 10, 2015. However, because of an inadvertent clerical error, PERB
records contained an incorrect mailing address for Pintor. As a result, service of the
November 10, 2015 Dismissal Letter was never effectuated on Pintor. At the request of the
OGC, the November 10, 2015 Dismissal Letter was subsequently revoked to allow for proper
service.
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2 EERA is codified at Government Code section 3540 et seq.
PERB Regulation 32615 sets forth the requirements for filing an unfair practice
charge.
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On December 23, 2015, the OGC corrected the service error by sending Pintor copies
of the September 10, 2015 Warning Letter and the October 20, 2015 Filing Deficiency Letter.
The OGC included a letter with the December 23, 2015 mailing informing Pintor that he was
being afforded an opportunity to correct the deficiencies set forth in the October 20, 2015
Filing Deficiency Letter. Pintor was further advised that he must correct the filing deficiencies
by January 15, 2016, otherwise the charge would be dismissed pursuant to the September 10,
2015 Warning Letter. Pintor did not respond. On February 1, 2016, the OGC issued a
Dismissal Letter for failure to state a prima facie case. Pintor was informed that he had 20
days within which to appeal the dismissal.
On February 16, 2016, Pintor filed his appeal. On February 22, 2016, the PERB
Appeals Assistant informed Pintor that his appeal was not filed in accord with PERB
Regulation 32360 in that he did not provide a valid proof of service. 	Pintor was then provided
until February 27, 2016, to perfect his filing. On March 7, 2016, Pintor re-submitted his
appeal. While the appeal attached a proof of service properly listing the CSEA designated
representative, it was not signed. By administrative determination dated March 14, 2016,
Pintor was informed that his appeal was untimely under PERB regulations.
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On March 21, 2016, Pintor filed a timely appeal of the administrative determination.
The appeal states that Pintor was pursuing his appeal according to PERB Regulation 32360,
which is the regulation regarding administrative appeals. The appeal then repeats the facts of
Review of the proof of service attached to Pintor’s appeal shows that Pintor served
Labor Relations Representative Andy Ritchi from CSEA. However, CSEA had previously
filed and properly served a Notice of Appearance Form on May 22, 2015, identifying attorney
Sonja J. Woodward as the CSEA designated representative.
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The administrative determination did not reference Pintor’s failure to sign his proof of
service or that the filing was otherwise not in compliance with PERB regulations.
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Pintor’s unfair practice charge and provides copies of various documents. Nothing in the
appeal provides an explanation for Pintor’s failure to sign his proof of service.
DISCUSSION
PERB Regulation 32635 governs review of dismissals. It states that, along with filing
the original appeal and five copies with the Board itself, “service and proof of service of the
appeal on the respondent pursuant to Section 32140 are required.”
PERB Regulation 32140 sets out the service requirements. Subdivision (a) states that
“[a]ll documents required to be served shall include a ‘proof of service’ declaration signed
under penalty of perjury . . .” (emphasis added). These requirements are not merely ritualistic,
they are basic to providing due process to the involved parties. (Los Angeles Community
College District (1984) PERB Decision No. 395.) Failure to follow the service and proof of
service requirements is sufficient grounds for denying an appeal. (Ibid.)
On February 1, 2016, the OGC issued Pintor a Dismissal Letter finding that the charge
did not state a prima facie case. On February 16, 2016, Pintor filed an appeal. The appeal was
timely filed, but it failed to conform to PERB regulations by including valid proof of service
showing that the CSEA designated representative had been served.6
On February 22, 2016, the Appeals Assistant provided Pintor until February 27, 2016,
to perfect his filing. On March 7, 2016, Pintor again filed an appeal. However, because the
proof of service accompanying Pintor’s March 7, 2016 appeal was not signed, it failed to
follow the clear procedural requirements for filing an appeal and was thus defective
PERB Regulation 32142 governs the proper recipient for filing or service.
Subdivision (d) identifies the proper recipient for an employee organization as “the individual
designated to receive service or to the president or if there is no president, an officer of the
organization.”
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The Board may, however, excuse defective service if the opposing parties received
actual notice of the filing and if there was no showing of prejudice. (Fontana Unified School
District (2003) PERB Order No. Ad-324.) Here, there is nothing to show that CSEA actually
received Pintor’s March 7, 2016 appeal. No answer was filed by CSEA in response to the
filing. The only response received from CSEA is in response to Pintor’s March 21, 2016
administrative appeal. Moreover, Pintor’s March 21, 2016 appeal of the administrative
determination provides only a recitation of the contents of the appeal of his unfair practice
charge. Nothing in the March 21, 2016 appeal acknowledges the defective service or explains
why the Board should excuse his defective service. Therefore, we find that Pintor’s appeal of
the OGC’s dismissal was properly dismissed because he failed to follow the established and
clear procedural requirements for filing an appeal.
ORDER
The Public Employment Relations Board’s (Board) denial of Pablo Felix Pintor’s
(Pintor) appeal of the dismissal of his unfair practice charge in Case No. LA-CO-1651-E as
untimely is AFFIRMED. Pintor’s request that the Board excuse his defective service is hereby
DENIED.
Members Winslow and Banks joined in this Decision.
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