State of California (Department of Parks and Recreation) (Kalko and Ruger) (PERB A260S)

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.
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)
)	
Case
	No.
	S-CE-667-S
Administrative
	Appea_l
PERB
	Order
	No. 	Ad-260-S
August
	31,
	1994
)
)
)
)
)
)
)
)
)
Appearance:	
State
	of
	California
	(Department
	of 	Personnel
Administration)
	by 	Linda
	A.
	Mayhew,
	Labor.Relations
	Counsel,
	for
State
	of
	California
	(Department
	of
	Parks
	and
	Recreation).
Before
	Blair,
	Chair;
	Carlyle
	and
	Garcia,
	Members.
DRCTSTON
CARLYLE,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by
	the
	State
	of
California
	(Department
	of
	Parks 	and
	Recreation) 	(State)
	to 	the
March
	31,
	1994
	decision 	of
	an
	adrninistrative
	law 	judge
	(ALJ)
denying
	its
	motion
	to
	dismiss 	the 	complaint.
	The
	State
	claimed
that 	the 	subject 	matter 	of 	the 	complaint 	should
	be
	dismissed
	and
deferred 	to 	binding
	arbitration
	as 	contained
	in 	the
	collective
bargaining
	agreement 	between
	the
	parties.
Based upon
	a
	review 	of 	the 	record
	and
	the
	facts
	of
	this
	case
the 	Board
	finds 	the
	State's
	appeal 	untimely 	and
	therefore 	denies
its
	appeal.

PROCEDURAL 	HISTORY
On
	December
	10, 	1993,
	the
	subject
	case
	was
	first
	noticed
	for
a
	hearing
	on March
	3, 	1994,
	with
	a
	telephonic 	prehearing
conference 	scheduled
	for
	February
	24, 	1994.
On
	January
	25, 	1994, 	David 	Ruger
	(Ruger)
	filed
	a
	request
	for
continuance
	which
	was
	granted
	with 	concurrences 	of
	John 	Kalko
(Kalko)
	and
	the
	State.
	Accordingly,
	the 	hearing
	was
	rescheduled
for
	March 	31,
	1994.
During
	the 	prehearing
	conference
	on
	February
	24,
	a
	timetable
was
	agreed
	upon
	concerning
	the
	State's
	soon-to-be-filed
	motion
	to
dismiss 	the
	complaint
	for
	lack
	of
	jurisdiction
	due
	to
	the
	failure
of
	Kalko
	to
	exhaust 	the
	contractual
	grievance 	procedure.
	The
	ALJ
indicated 	that
	with 	the 	hearing
	set
	for
	March
	31, 	an
	oral 	ruling
on
	the 	record
	at
	the 	beginning 	of
	the 	hearing
	would
	be
	issued.
Neither 	side 	objected 	to
	this
	process.
At
	the 	hearing
	on March 	31, 	1994,
	the
	motion 	by
	the
	State
was
	denied. 	Thereafter, 	the 	hearing 	proceeded
	and 	Ruger
	and
Kalko
	concluded
	their
	case-in-chief.
	The
	hearing
	was
	recessed
and
	scheduled
	to
	reconvene
	for 	the
	State's
	case-in-chief
	and
conclusion
	on
	June 	9, 	1994,
	On
	April
	20, 	1994,
	the 	State
requested
	a
	continuance 	of 	the 	hearing"
	The
	request
	was
	granted,
with 	the
	concurrence 	of
	Ruger 	and 	Kalko, 	and
	the 	hearing
	was
scheduled 	to
	reconvene 	on
	July
	7, 	1994
On May 	.20,
	1994,
	the 	State 	requested
	a
	second 	continuance.
With
	the 	concurrence 	once 	again 	of 	Ruger 	and 	Kalko,
	a
	second
2

continuance
	was
	granted
	and
	the
	matter
	was
	rescheduled
	for
hearing
	on
	July
	21, 	1994.
Thereafter,
	on
	June
	22, 	1994, 	Kalko
	requested
	a
	continuance.
With
	all
	parties
	concurring, 	the 	request
	was
	granted
	and
	the
hearing
	is
	now
	set
	to
	reconvene
	on
	September
	8, 	1994.
The
	State
	filed
	its
	"Appeal
	of 	Denial 	of 	Respondent's
	Motion
to
	Dismiss
	and
	Defer
	to
	Binding
	Arbitration,
	PERB
	Regulation
32646;
	Request
	for
	Stay 	of
	Activity
	PERB
	Regulation
	32370,
''
	on
July
	8,
	1994,
	98
	days
	after
	the
	ALJ's
	oral 	ruling
	denying
	the
State's
	motion
	to
	dismiss
	and
	78
	days
	following
	service
	of
	the
hearing
	transcript.
1
DISCUSSION
The
	issue
	of
	deferral 	to
	binding
	arbitration
	has 	been
determined
	by
	the
	Board
	to
	be
	jurisdictional
	(Lake
	Elsinore
School
	District
	(1987)
	PERB
	Decision
	No. 	646)
	However,
	this
does
	not 	allow
	a
	party
	an
	unfettered 	right 	to 	raise
	the
	issue 	at
any
	time
	that
	it
	deems
	appropriate 	without 	following
	PERB
regulations.
	In 	bringing
	this
	matter
	to
	the
	Board,
	the
	State
relies
	on
	PERB
	Regulation
	32646(b)
2
which
	allows
	a
	party 	to
appeal 	to 	the
	Board
	a
	denial
	of
	a
	Board
	agent's
	motion
	to 	defer.
PERB
	Regulation 	32646(b),
	states
	in 	part:
The 	Board
	agent's 	denial 	of 	respondent's
motion
	to 	defer
	an
	unfair 	practice
	charge
	to
final
	and 	binding
	arbitration
	may
	be 	appealed
1
The
	record 	indicates 	that 	the
	March 	31, 	1994
	hearing
transcript
	was
	served
	on
	the 	parties
	on
	April 	21, 	1994.
2PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et 	seq.
3

to
	the
	Board
	itself
	in
	accordance
	with
	the
appeal 	procedures
	set 	forth 	in 	section
	32635.
Therefore,
	any
	appeal
	by
	the
	State
	must 	conform
	with
	PERE
Regulation
	32635
	which
	states,
	in 	part:
32635,
	Review
	of
	Dismissals.
(a)
	Within
	20
	days
	of 	the 	date
	of
	service
	of
a
	dismissal, 	the
	charging
	party
	may
	appeal
the 	dismissal 	to
	the
	Board
	itself.
	The
original
	appeal
	and
	five
	copies
	shall
	be
filed
	in 	writing
	with
	the
	Board
	itself
	in
	the
headquarters
	office,
	and
	shall
	be
	signed
	by
the 	charging
	party 	or
	its
	agent.
	Except
	as
provided
	in 	section
	32162,
	service
	and
	proof
of
	service
	of 	the
	appeal
	on
	the
	respondent
pursuant
	to 	section
	32140
	are 	required.
Under
	Regulation
	32635,
	the
	State
	had
	20
	days
	to
	appeal 	the
ALJ's
	refusal 	to
	dismiss 	the 	complaint.
	The
	ALJ
	made
	her
	ruling
from
	the
	bench
	on March
	31, 	1994.
	The
	State
	was
	served 	with
	a
copy
	of 	the
	transcript
	on
	April
	21, 	1994.
	The
	State
	did 	not
	file
the
	instant
	motion
	until
	July
	8,
	1994 	which
	is
	well
	outside 	the
20-day 	time
	limit
	counting
	from
	either
	the 	date
	of 	the
	ruling 	or
service
	of 	the
	transcript.
	Therefore, 	the
	State
	has
	failed 	to
timely
	file 	its
	appeal.
3
However,
	the
	State
	is
	not 	without 	recourse 	in
	this
	matter.
It
	still
	has 	the
	right 	to 	bring 	the
	deferral 	to
	arbitration
matter 	before 	the	
.AL,J
	and 	thus 	the
	Board
	at 	later
	stages 	of
	this
case. 	Finally, 	to 	allow 	the 	State 	to 	succeed
	in 	this
	motion
would 	have 	allowed 	one
	party 	the 	opportunity 	of 	delaying
	a
3
The 	Board 	notes 	for 	the 	record 	that 	although 	there
	would 	besome
	obvious 	advantages,
	PERB
	Regulation
	32635 	does 	not 	require
that
	a
	decision denying
	a
	motion 	to 	dismiss 	and 	defer 	to 	binding
arbitration
	be 	reduced 	to
	a
	written 	order.
4

hearing
	at
	its
	own
	discretion.
	Such
	an
	allowance
	would 	do
nothing 	but
	foster
	mistrust
	among
	the
	parties
	and
	would
	not
promote
	the
	Board's
	goal 	of
	judicial
	economy.
ORDER
The
	Board
	AFFIRMS
	the
	ALJ's
	order
	denying
	the
	motion
	to
dismiss 	the
	complaint,
	and
	REMANDS
	this
	case
	to
	the
	Chief
administrative
	law
	judge
	to
	be
	processed
	in
	accordance
	with
	PERB
regulations.
	Accordingly,
	the 	request 	for 	stay
	of
	the
proceedings
	in
	Case
	No.
	S-CE-667-S
	is
	also
	DENIED.
Chair
	Blair
	and
	Member
	Garcia
	joined
	in
	this
	Decision.
5