PERB Decision No. 0483S•State of California, Employment Development Department (PERB 0483S)
State of California, Employment Development Department (PERB 0483S)
PERB Decision No. 0483SCalperbJan 18, 1985
Full text
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD LAURA PATINO, Charging Party, v. STATE OF CALIFORNIA, EMPLOYMENT DEVELOPMENT DEPARTMENT, Respondent. ) ) ) ) ) ) ) ) ) ) ____________________ ) Case No. S-CE-233-S PERB Decision No. 483-S January 18, 1985 Appearances: Patricia L. Campbell, Attorney for Laura Patino; Christine A. Bologna and Edmund K. Brehl, Attorneys for the State of California, Employment Development Department. Before Hesse, Chairperson; Tovar and Jaeger, Members. DECISION AND ORDER JAEGER, Member: Laura Patino appeals the dismissal by a regional attorney of the Public Employment Relations Board of her charge that the California Employment Development Department violated Government Code sections 3519(a) and (b) by terminating her because of her participation in activities protected by the State Employer-Employee Relations Act. The Board recently adopted a procedure calling for a review by the General Counsel of cases on its docket which involve dismissal of charges and refusal to issue a complaint.
On December 26, 1984, the General Counsel requested that this case be remanded for further investigation and evaluation of an amendment to the original charge. Clearly, underlying the Board's adoption of the remand procedure was the-desire to minimize, and hopefully eliminate, appellate litigation prompted by inadequacies in the processing of unfair practice charges. Presumably a request by the General Counsel for such Board action is predicated on a conclusion that further investigation is likely to achieve that desirable result. Barring those instances where a charge unequivocally fails to state a prima facie case, or conversely, where it clearly requires issuance of a complaint, there would be little purpose to the Board's policy if the General Counsel's request for remand were given short shrift. Here, based on the General Counsel's report. we conclude that his request should be honored. Therefore, upon review of the entire record, we find that the case is appropriately remanded to the General Counsel for further investigatory proceedings. It is so ORDERED. Member Tovar joined in this Decision. Chairperson Hesse's dissent begins on page 3. 2
Hesse,
Chairperson,
dissenting:
This charge
was
properly
dismissed
by
the
regional
attorney
because
of
our
policy
of
deferral.
The
failure
of
CSEA's
attorney to
name CSEA
as
a
charging
party,
and
to
allege
a
violation
of
EERA
section
3519(b),
cannot
be
remedied
by
this
Board,
either
by
reversing
the dismissal
or
permitting
an
amended
charge
to
be
filed,
without
good
cause.
CSEA,
however,
gives
no
adequate grounds
to
warrant
reversal.
Thus,
no remand
is
necessary for
further
investigation.
The
undisputed
facts
are:
CSEA
filed
the
original
charge
on
behalf
of Patino;
CSEA
was
aware
prior
to the
dismissal that
the
charge did not address the
issue
of
CSEA's
rights
{Appeal
pp.
7-8)
;
and
CSEA
did
not
amend
the charge
in
a
timely
manner.
The
reasons
advanced
by
CSEA
for
its
failure
to
amend
are
merely
attempts to exculpate
itself
for
its
own
failure
to
abide
by
our
Regulations.
By
remanding
this
case to the General Counsel,
the majority
does
two
things:
it
gives
life
to
a
charge
that
should
be
before
an
arbitrator
instead of
PERB,
and,
more
importantly,
it
ignores the charged
party's rights
completely.
As a
neutral
agency,
we
are to safeguard the
rights
of
all
parties.
Here,
CSEA was
given every opportunity to protect
itself
by
filing
an
accurate charge.
The
employer
is
equally protected
under our
statute
from
defending
itself
against stale
claims.
'T'h11c::,
...................
,
...
T
believe
a
remand
is inappropriate
and
that the dismissal of the
charge
was
correct
on grounds of deferral to arbitration.
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