Santa Ana Unified School District (Lubnau) (PERB 0036E)

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STATE OF CALIFORNIA
DECISION OF THE EDUCATIONAL
EMPLOYMENT RELATIONS BOARD
RHODA M. LUBNAU,
Charging Party,
and
SANTA ANA UNIFIED SCHOOL DISTRICT,)
Respondent.
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) 	Case 	No. 	LA-CE-108
EERB Decision No. 36)
October 28, 	1977
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Appearances: 	Rhoda M. Lubnau, representing herself.
Before Alleyne, Chairman; Gonzales and Cossack, Members.
OPINION
The charging party, an individual, filed an unfair practice charge with
the Board alleging a violation of Government Code Section 3543.5(a) in that
the principal and vice-principal at the school where she is employed evaluated
her in an unlawful manner; that the principal unlawfully suspended her from
classroom duties; 	that the vice-principal and the superintendent of the
school district handled her grievance based on the unlawful evaluation in an
unlawful manner. 	Because the charge did not state that any of the allegedly
unlawful acts were motivated by or in any way connected with the charging
party's exercise of rights protected by the Educational Employment Relations
Act, the EERB hearing officer dismissed the charge for failure to state a
prima facie case, but did so with leave to amend the charge "within fifteen
(15) calendar days."
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No amended charge was filed within the fifteen calendar days allowed by
the hearing officer, or at any time. 	Thirty days after the charge was
dismissed with leave to amend, 	the hearing officer dismissed the charge on
the ground that no timely amendment was filed and no timely appeal of the
dismissal with leave to amend was taken to the EERB itself. 	This notice of
dismissal by the hearing officer indicated that the charging party might
obtain a review of the dismissal by filing an appeal with the Board itself
within ten calendar days after service of the notice of dismissal, as
provided by EERB Rule 35007(b).1
Pursuant to EERB Rule 35007(b), 	charging party then filed a timely
appeal with this Board. 	The appeal seeks reversal of the hearing officer's
decision to dismiss the charge. 	It is argued that certain mitigating
circumstances prevented charging party from filing a timely amended charge.
EERB Rule 35002(d)2 provides:
With the exception of the charge, upon timely
application and a showing of good cause the
Board may extend the required filing date.
Under that rule, 	except for an original unfair practice charge3, a
request for an extension of time must be filed before the required time period
runs. 	That is the meaning of the words "timely application," as used in
1 8 Cal. Admin. Code 35007(b), which provides:
The charging party may obtain a review of the dismissal by
filing an appeal to the Board itself within ten calendar
days after service of notice of dismissal. 	The appeal shall
be in writing, 	signed by the party or its agent and contain
the facts and arguments upon which the appeal is based.
2 8 Cal. Admin. Code 35002(d).
The EERB is without power to extend the time for filing an original unfair
practice charge beyond the six-month limitation period provided by Gov. Code
Sec. 3541.5(a).
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EERB Rule 35002(d) . 	Circumstances showing "good cause" 	for an extension of
time may not be considered when the request 	for an extension of time is
itself untimely. 	Here, 	there was no timely amended charge and no timely
request for an extension of time to file an amended charge. 	Therefore, 	the
hearing officer properly dismissed the charge.
ORDER
The hearing officer's dismissal of the unfair practice charge against
Santa Ana Unified School District is sustained.
Reg1naldAlleyne, 	Chairman
Raymond J. 	Gonzales , Member , 	concurring in the order;
I would dismiss the charging party's appeal for reasons other than
those expressed by my colleague, 	Chairman Alleyne. 	I would dismiss this
appeal because the appellant failed to timely serve her appeal on the
District as 	implicitly required by subdivision 35002 (b) 	of the Board's
regulations.!
1 Cal. Admin. 	Code, 	tit. 	8, Sec. 	35002 (b) provides:
An unfair practice charge, 	an application for
joinder and a petition to submit an informational
brief shall be considered 	'filed' 	by a party when
actually received by the appropriate regional
office. 	All other documents referred to in
these rules and regulations 	shall be considered
'filed' 	by a party when actually received by the
appropriate regional office accompanied by proof
of 	service of the document on each party.
[Emphasis 	added] 	-3-	. 	. ..;-

When the appellant submitted her appeal seeking the right to file a late
amended charge, to which, incidentally, was attached the amended charge, she
failed to accompany the appeal with proof of service as required by Section
35002(b). 	Despite the appellant's failure to comply with the regulation, she
was nevertheless afforded the opportunity to subsequently submit a late proof
of service. 	Upon submission of this proof of service, which came only after
several requests by this office, it was evident the appellant had not served the
District concurrently; rather, service on the District came more than two months
later than the filing of the amended charge.
While I realize that my view of the Board's adopted rules and
regulations relative to its procedural requirements may appear unduly
harsh, I nevertheless feel it is imperative for this agency, particularly
in its formative stage, to make it clear to the parties that their
compliance with the rules and regulations is expected. 	Further, given
the caseload volume which the Board must process, I do not think it is
reasonable to expect the Board to take on the burden of partially
preparing the parties' cases, specifically, editing their filings and
then informing them as to what is necessary for a complete filing. 	It
is the burden of the parties to see that all papers have been properly
prepared.
The Board's rules and regulations speak for themselves. 	If they
are "vague and confusing" as suggested by my colleague, Ms. Cossack, in
Manteca Unified School 	District2, 	then they should appropriately be amended. 	But
I cannot adhere to what in effect amounts to amendment of the rules and
regulations on a case-by-case basis. 	Either the Board intended what it
Decision No. 21, August 5, 1977.
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stated When it adopted the rules and regulation$ or it did not.
The foregoing is not to say that this agency should not be accessible
to the parties regarding questions they may have concerning the Board's
processes . 	Moreover, 	in the event that a party is mislead by the Board
as to what is required under its rules and regulations, 	then equitable
considerations would compel a different analysis . 	But the facts 	in this
case simply do not warrant a result other than dismissal on the grounds
stated above .
Raymond 	J. 	Gonzales ,fcleriber/
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JerilouH . Cossack, 	Member, 	dissenting :
I dissent from the order and the respective opinions of my colleagues.
Both opinions place unfounded reliance on technical 	interpretations of our
rules and regulations to deny this 	individual an opportunity to have her charges
considered on the merits.
On April 15, 	1977, 	Mrs . Rhoda Lubnau filed an unfair practice charge con-
sisting of 10 allegations of discriminatory conduct by the Santa Ana Unified
School District against her . 1 On April 19, 	1977, 	General Counsel dismissed
11The allegations include :
... the principal and vice-principal at the school
where she is 	employed evaluated her in an unlawful
manner; 	the principal unlawfully suspended her from
classroom duties; 	the vice-principal and the super-
intendent of the school district handled her grievance
based on the unlawful evaluation in an unlawful manner.
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the charge with- leave to amend for failure to state a prima facie case.
(Lubnau's original charge did not allege that the District's actions were in
response to the exercise of any of her rights guaranteed under the Act.) 	On
May 19, 1977, General Counsel dismissed the charge, as no amendment wa
. s received.
On May 27, 1977, the EERB received Lubnau's appeal of the dismissal. 	It stated:
"When I got your letter indicating I had leave to
amend I gave it to a lawyer Friday April 29, 1977
to amend but he forgot to do it. 	I was out of town
from May 1-5, 1977 due to the sudden death of ray
father-in-law in Maryland. 	When I returned I
called the lawyer and found out he was working on
a large case and did not look at my material until
after the time limit on the right to amend.
I did not realize I had the right to appeal after the
15 days until I received your letter. 	So, I'm appeal-
ing now for the right to turn in an amended form and
void the dismissal of my case No. LA-CE-108.
I did not have the time to find another lawyer to help
me or I've been busy protecting myself in various
ways from the attacks of the Santa Ana Unified
School District. 	Kindly understand my situation
and that I'm just a layman."
Attached to the appeal was an amended charge alleging that the District's
actions against her were motivated by her membership in and activity on behalf
of the Federation of Associated and Classified Teachers, AFT Local No. 2189.
Thus, 	the amended charge cures the defect cited by General Counsel and now
states a prima facie charge. 	In fairness to Lubnau and the District, I believe
her charge should be considered on its merits.
The majority, however, have mounted a number of formidable barriers in
front of individuals seeking protection or vindication of their rights under
this Act. 	First, the initial decision by the majority to restrict General Counsel
to a neutral adjudicatory role effectively deprives individuals such as Lubnau
of the needed assistance to file a proper charge. 	Second, my two colleagues
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narrowly interpret our rules and regulations in a manner that forecloses Board
consideration of an appeal of a merits except when every " i " and "t" have been
meticulously dotted and crossed. 	In effect, my colleagues are shutting out
individuals who cannot afford an attorney or a labor expert.
In the case at hand, the Chairman considers Lubnau's appeal of her dis-
missal as a request for a time extension to file an amended charge under
Rule 	35002(d)2. 	I agree that this is a correct reading of Lubnau's "appeal."
However, 	the Chairman contends that Lubnau's request fails because it is not
a "timely application." 	As a matter of law, he concludes that "timely applica-
tion" means a request for a time extension must be made prior to the deadline
from which the party is asking an extension. 	No where in the Act or in our
rules and regulations is "timely application" so defined. 	Yet, the conclusion
is arbitrarily adopted, Which conveniently preempts a consideration on the
merits..
Rule 35002 (d) is intended to consider late appeals or late amendments when
there has been a showing of "good cause." 	As I noted in my dissent in Manteca,
EERB Decision No. 21, Rule 35002(d) gives the Board more flexibility than the
courts where time limits are considered jurisdictional. 	The chairman's interpre-
tation of "timely application" destroys that flexibility and the policy reasons
for promulgating Rule 35002(d). 	In many, if not most, cases a party's "good
cause" for requesting a time extension also would prevent the party from
2 Rule 35002(d) states:
With the exception of the charge, upon timely
application and a showing of good cause the
Board may extend the required filing date.
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communicating with this agency during the proper filing period. 	The individual
may be seriously ill or out of town and, therefore, not even be notified of a
dismissal and the need to respond within 15 days. 	As a matter of law, the Chairman
would not even consider these situations because no prior request was received.
"Timely application" should be interpreted to effectuate the policy of the
law which favors preserving an appeal on the merits. 	The Board should balance
the interests of the charging party seeking the extension and the interest of
the respondent who desires a final adjudication of the charges. 	In this case,
the party requested a time extension to file an amended charge during the pro-
per time period for an appeal. 	The amended charge was submitted less than one
month after the due date. 	Thus, the case was still before the Board. 	In view
of the seriousness of the charges and the little or no harm to the District to
grant this extension, I would consider the request timely filed. 	I also consider
Lubnau's reasons for a time extension to be "good cause." 	She claims that a
death in her family and an attorney's delay in working on her case prevented a
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timely amendment.
Board Member Gonzales relies on a different technicality to prevent a review
on the merits. 	He claims Lubnau's request for a time extension was untimely
because the District was not served at the same time Lubnau made her request.
Our rules and regulations do not warrant this result.
I noted in Manteca that arguably the District is not a party to the unfair
practice until served with the charge by General Counsel. 	Therefore, the
individual charging party has no obligation under our rules to serve an appeal
3Although she claims she gave her case to an attorney, Lubnau continues
to represent herself before the Board.
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of a dismissal of a charge or a request to file a late amended charge. 	Little
or no purpose exists for serving the District with a time extension to file an
amended charge if the District has no knowledge of the original charge. 	In the
case at hand, General Counsel did not serve the charge, nor the dismissal of
the charge with leave to amend, nor the final dismissal. 	The District has not
been a party to this case. 	Despite these facts and that Lubnau did indeed
serve the District with her request for a time extension, 4 Mr. Gonzales reads
our rules to preclude Lubnau from having her allegations considered by this
Board.
As a proviso to his strict interpretation of our rules and regulations,
Mr. Gonzales states, "[I]n the event that a party is misled by the Board as to
what is required under its rules and regulations, then equitable considerations
would compel a different analysis." 	He concludes, however, that no such situa-
tion exists in this case. 	Mr. Gonzales does not even mention that on August 17,
1977, the Executive Assistant to the Board wrote Lubnau, stating:
"According to Board policy and rules, a copy of
an appeal to the Dismissal of an unfair Practice
Charge must be served on the other party to the
case.
No proof of service was attached to the appeal you
filed in the above-captioned case. 	On August 3,
1977, this office contacted you requesting said
proof of service, but we have not yet received it.
If you will furnish a copy of the proof of service
to this office, this case can be submitted to the
Board for consideration. 	It cannot be taken into
consideration until the proof of service is received."
4On August 23, 1977, the Board received proof of service on the District
and a typed copy of Lubnau'
s request for a time extension. 	Thus, she did
accompany her request with proof of service.
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Lubnau then served the District, 	pursuant to the .Board's request . 	I believe
the Board. indicated that if Lubnau served her request for a time extension, 	she
would have her request considered on its merits. 	By not considering her request,
the Board indeed has misled her.
The legislature, 	in enacting the Educational Employment Relations Act,
took into account the need to protect individuals and to allow these individuals
access to our Board to protect their rights. 	Government Code Section 3543
grants public school employees the right to join or participate in the activities
of employee organizations of their own choosing . 	Government Code Section 3543.S (a)
protects this right by making it unlawful 	for a public school employer to dis
criminate against, 	interfere with, 	restrain or coerce employees because of their
exercise of this right . 	The majority's decision today is another blocking
individuals 	alleging a violation of their right and seeking protection from
this Board .
,,. .iJ 	H.
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er ilou 	·coss~ck I Member