State of California (Department of Parks and Recreation) (PERB 1125SA)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JOHN KALKO AND DAVID RUGER,
Charging Parties,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF PARKS AND RECREATION),
Respondent.
)
)
) 	Case No. 	SA-CE-667-S
Request 	for Reconsideration
PERB Decision No. 	1125-S
PERB Decision No. 	1125a-S
September 	24, 	1997
)
)
)
)
)
)
)
Appearances: 	John Kalko and David Ruger, 	on their own behalf;
State of California 	(Department of 	Personnel Administration) 	by-
Linda A. 	Mayhew, 	Labor Relations Counsel, 	for State of California
(Department of Parks and Recreation).
Before Caffrey, 	Chairman; 	Johnson and Jackson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on a request by John Kalko
(Kalko) 	and David Ruger 	(Ruger) 	that 	the Board accept 	their late
filed 	request 	for 	reconsideration of 	State 	of 	California
(Department of 	Parks and Recreation) 	(1995) 	PERB Decision
No. 	1125-S 	(Parks and Recreation). 	In Parks and Recreation, 	the
Board dismissed the unfair practice 	charge, 	which alleged 	that
the 	State 	of 	California 	(Department 	of 	Parks 	and Recreation)
(State) 	retaliated against 	Kalko and Ruger in violation of
section 3519(a) 	of the Ralph C. 	Dills Act 	(Dills Act).1
1The Dills Act 	is 	codified at Government 	Code 	section 3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
•

After reviewing the 	entire 	record, 	including Kalko and
Ruger's 	request 	and the 	response 	filed by the State, 	the Board
hereby declines 	to accept 	the 	late 	filing.
BACKGROUND
On June 18, 	1997, 	Kalko and Ruger filed a document with the
Board entitled 	"Motion 	for a New Trial 	(CCP 	657) 	and Motion 	for a
Rehearing and Motion 	for Order 	to Omit Addresses 	and Motion 	for
Arbitration Order" 	in which they request a 	"new trial,"
"reexamination of 	the 	facts," 	or a 	"new hearing" 	in Parks and
Recreation, 	among other things. 	In support of 	their request,
they argue 	that 	they have 	discovered new evidence. 	Specifically,
Kalko and Ruger state that on or about June 20, 	1996, 	they
discovered:
. 	. 	. 	the returned hearing officer's judgment
on a parking citation that 	is 	evidence of
possible 	illegal 	actions 	by State 	Park 	Peace
Officer supervisors 	who were 	involved 	in 	the
original 	events 	that 	caused the parties 	to
file 	for the unfair practice 	charges.
Additionally, 	Kalko and Ruger refer to 	"evidence" 	that 	"Kramer
has 	been diving at 	night 	for 	lobsters 	in 	the park as 	recently as
October, 1996."
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
22

--
DISCUSSION
The 	Board 	recently 	considered a 	similar 	case 	in which a
party made 	a 	request 	to 	reopen 	the 	hearing 	record more 	than 	three
years after issuance of 	the Board's 	decision. 	(Regents 	of 	the
University of California 	(Einheber) 	(1997) 	PERB Decision
No. 	949a-H 	(Einheber).) 	In that case, 	the Board noted that
requests 	to 	reopen a 	completed 	record based 	on new evidence 	are
measured by 	the 	same 	standard we use 	when 	considering 	requests
for reconsideration. 	(Einheber. 	supra. 	p. 	2, 	citing San Mateo
Community College District 	(1985) 	PERB Decision No. 	543.) 	The
Board concludes 	that 	it 	is 	appropriate 	to 	follow this 	approach 	in
considering 	the 	instant 	request 	from Kalko and Ruger.
Reconsideration 	requests 	are 	governed by 	PERB 	Regulation
32410(a),2 which states, 	in part:
(a) 	Any party to a decision of 	the Board
itself may, 	because of extraordinary
circumstances, 	file a request 	to reconsider
the decision within 20 	days 	following 	the
date of service of the decision. 	. 	. 	. 	The
grounds 	for 	requesting 	reconsideration are
limited to 	claims 	that 	the decision of 	the
Board 	itself 	contains 	prejudicial 	errors 	of
fact, 	or newly discovered evidence or law
which was 	not 	previously available and 	could
not 	have been discovered with 	the 	exercise 	of
reasonable diligence.
Since 	Parks and Recreation was 	issued November 30, 	1995,
Kalko and Ruger's June 18, 	1997 	request was 	filed approximately
18 months 	late. 	PERB Regulation 32136 provides 	that:
2PERB 	regulations are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
3
----· 	--·
3

A late 	filing may be 	excused 	in 	the
discretion of 	the Board 	for good cause 	only.
A late 	filing which has 	been 	excused becomes
a 	timely 	filing under 	these 	regulations.
There 	have been 	occasions 	when 	PERB has 	exercised 	its
discretion pursuant 	to this 	regulation to excuse 	late 	filings.
Typically, 	good cause to excuse the 	lateness has been found when
the 	deadline was missed by only a 	short 	period of 	time 	and the
party 	demonstrated a 	conscientious 	effort 	to 	timely 	file 	before
the 	deadline, 	but 	the 	filing arrived late due 	to an 	"honest
mistake." 	(Id.. p. 4.)3
Kalko and Ruger missed their deadline by 18 months, 	but 	they
do not assert 	that 	an 	"honest mistake" 	or 	inadvertence 	caused
their lateness. 	In fact, 	Kalko and Ruger fail 	to address 	the
lateness 	of 	their request. 	Instead, 	while 	they seem to allege
that 	there 	is 	"newly discovered evidence" 	which was 	not
previously available, 	they have not 	explained why it 	could not
have been discovered earlier with 	the 	exercise 	of 	reasonable
diligence. 	Nor have 	they explained the 	reason 	for the 	one-year
delay between 	the 	time 	they apparently discovered 	the 	"new
3Examples 	include: 	Trustees 	of 	the California State
University 	(1989) 	PERB Order No. 	Ad-192-H) 	(filings sent by
certified mail 	on 	the 	last 	day 	for 	filing but 	were 	erroneously
postmarked the next day); 	California School Employees
Association 	(Simeral) 	(1992) 	PERB Order No. 	Ad-233 	(filings were
late due to incorrect address and postal delay); 	The Regents 	of
the University of California 	(Davis, 	Los Angeles. 	Santa Barbara
and San Diego) 	(1989) 	PERB Order No. 	Ad-202-H) 	(filings
inadvertently sent 	by 	regular mail 	on 	the 	last 	day 	for 	filing
rather than by certified mail); 	and North Orange 	County Regional
Occupational 	Program 	(1990) 	PERB Decision No. 	807 	(filings were
not 	timely 	filed at 	the 	correct 	office 	(PERB's 	headquarters
office 	in Sacramento) 	but were 	timely 	filed at 	PERB's 	regional
office in Los Angeles).
44

evidence" 	(June 20, 	1996, 	according to their request) 	and the
time they filed the instant request 	(June 18, 	1997).
Where a party 	fails 	to provide 	any 	explanation 	to 	excuse a
late 	filing, 	the Board is precluded from finding that 	good cause
exists. 	(Sonoma County Office of 	Education 	(1992) 	PERB Order
No. 	Ad-230; 	California Faculty Association 	(Gregg) 	(1995) 	PERB
Order No. 	Ad-271-H.) 	Accordingly, 	we do not 	find that good cause
exists 	to excuse 	this 	late 	filed 	request 	for reconsideration.4
ORDER
John Kalko and David Ruger's 	request 	to accept 	their 	late
filed 	request 	for 	reconsideration of 	the Board's 	decision 	in
State 	of 	California 	(Department 	of 	Parks 	and Recreation) 	(1995)
PERB Decision No. 	1125-S 	is hereby DENIED.
Chairman 	Caffrey and Member Jackson 	joined 	in 	this 	Decision.
4In addition 	to 	requesting 	that 	the 	Board 	reconsider 	its
decision 	in Parks 	and Recreation. 	Kalko and Ruger make 	two other
requests 	in 	their late 	filed request 	for 	reconsideration. 	They
request 	that 	the Board delete 	their home 	addresses 	from proofs 	of
service 	on 	"all 	existing public documents 	in this 	case," 	and 	they
request 	that 	their original 	grievance be 	sent 	to arbitration.
Since we 	treat 	this 	entire 	document as 	a 	late 	filed request 	for
reconsideration, 	and we 	conclude 	that 	Kalko and Ruger have not
shown good cause 	to excuse 	the lateness of 	that 	request, 	we are
precluded 	from 	considering 	all 	requests 	made 	therein.
55