State of California, Employment Development Department (PERB 0483S)

STATE
	OF
	CALIFORNIA
DECISION
	OF THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
LAURA
	PATINO,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA,
	EMPLOYMENT
DEVELOPMENT
	DEPARTMENT,
Respondent.
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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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