Gonzales Union High School District (PERB 0379E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
GONZALES 	UNION HIGH SCHOOL DISTRICT,
Charging 	Party,
v.
GONZALES 	UNION HIGH SCHOOL
TEACHERS ASSOCIATION, 	CTA/NEA,
Respondent.
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) 	Case No. 	SF-CO-195
PERB 	Decision No. 	379
February 	27, 	1984
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Appearances; 	William Wood Merrill, 	Attorney 	(Littler,
Mendelson, 	Fastiff 	& 	Tichy) 	for 	the Gonzales Union High School
District; 	Ramon E. 	Romero, 	Attorney for 	the Gonzales Union High
School Teachers Association, 	CTA/NEA.
Before: 	Jaeger, 	Tovar and Burt, Members.
DECISION 	AND 	ORDER
JAEGER, 	Member: 	The Gonzales Union High School District
(District) 	requests 	special permission, 	pursuant to Public
Employment Relations Board 	(PERB 	or Board) 	rule 	32155(d),l 	to
1PERB 	rules 	are 	codified 	at 	title 	8, 	California
Administrative Code, 	section 31000 	et seq. 	PERB 	rule 	32155(d)
provides:
If 	the Board 	agent does 	not disqualify
himself 	or 	herself 	and 	withdraw 	from 	the
proceeding, 	he or 	she shall so rule on the
record, 	state 	the grounds 	for 	the 	ruling,
and 	proceed 	with 	the 	hearing 	and 	the
issuance of 	the decision. 	The party
requesting 	the 	disqualification may, 	within
ten days, 	file with the Board 	itself a
request 	for 	special permission 	to 	appeal 	the
ruling of 	the Board 	agent. 	If permission
is not granted, 	the party requesting
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disqualification may 	file 	exceptions, 	after
hearing 	and 	issuance 	of 	the 	decision,
setting 	forth 	the 	grounds 	of 	the 	alleged
disqualification 	along 	with 	any 	other
exceptions 	to 	the 	decision on 	its merits.
appeal 	the 	refusal of 	an Administrative Law Judge 	(ALJ) 	to
disqualify 	himself 	from presiding 	over 	an 	administrative
hearing.2
PERB 	rule 	32155(d) 	is 	intended 	to permit 	the Board 	to grant
immediate 	interlocutory appeal of 	a Board 	agent's 	refusal 	to
disqualify 	him or 	herself 	whenever 	the Board 	determines 	that
permitting 	such 	an 	immediate 	appeal 	would 	effectuate 	the
purposes 	of 	the Educational Employment Relations Act. 	Where
such 	special permission 	to appeal 	is 	denied, 	the moving party
is 	free 	to 	reassert 	its 	arguments 	concerning 	disqualification
in 	its 	exceptions 	to 	the 	ALJ's 	proposed 	decision.3
2The 	District's 	underlying 	disqualification 	motion 	was
made pursuant to PERB 	rule 32155(a)(4), 	which provides:
(a) 	No 	. . . 	Board 	agent performing 	an
adjudicatory function, 	shall decide or
otherwise 	participate 	in 	any case 	or
proceeding:
(4) 	When 	it 	is made 	to appear probable
that, 	by reason of prejudice of 	such
. 	. 	. 	Board agent, 	a fair and 	impartial
consideration of 	the 	case 	cannot 	be 	had
before 	him or 	her.
3we 	note 	that 	a party 	is 	not 	required 	to 	file 	a 	request
for 	special permission 	to appeal 	an ALJ's 	denial of 	a
2
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disqualification motion 	in order 	to preserve 	its 	right 	to
appeal 	that 	denial 	in 	its exceptions 	to a proposed decision.
PERB 	rule 	32155 merely provides 	an additional, 	but not
mandatory, 	step 	in the appeal process.
We 	have 	reviewed 	the District's 	request 	for 	special
permission, 	including 	its 	grounds 	for 	urging 	disqualification
of 	the ALJ, 	and we 	find 	that 	it would 	not effectuate 	the
purposes 	of 	the Act 	to grant 	interlocutory 	review.
The District's 	request 	for 	special permission 	to appeal 	its
motion 	for 	disqualification of 	an Administrative Law Judge 	in
Case No. 	SF-CO-195 	is DENIED.
Members Tovar 	and Burt 	joined 	in 	this Decision.
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