California School Employees Association (Ruiz) (PERB A253E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
MERCY
	F.
	RUIZ,
Charging
	Party,
v.
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case
	No.
	SF-CO-442
Administrative
	Appeal
PERE
	Order
	No. 	Ad-253
May
	5,
	1994
Appearances:	
Mercy 	F.
	Ruiz,
	on
	her
	own
	behalf;
	William
	Corman,
Attorney, 	for 	California
	School
	Employees
	Association.
Before 	Caffrey, 	Carlyle
	and
	Garcia,
	Members.
DECISION
CAFFREY,
	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	appeal
	by Mercy 	F. 	Ruiz 	(Ruiz)
of
	the 	denial
	of
	a
	request 	for
	an
	extension 	of 	time
	to
	file
	an
appeal 	of 	the 	dismissal
	of 	her
	unfair 	practice
	charge.
BACKGROUND
Ruiz
	filed
	her 	unfair 	practice
	charge
	on
	May
	12, 	1993.
1	
The
charge
	alleged 	that
	the 	California
	School
	Employees
	Association
(CSEA)
	had
	failed 	in
	its
	duty 	of
	fair
	representation 	in violation
of
	the 	Educational
	Employment
	Relations
	Act
	(EERA) . 2 	On
	June 	14,
a 	PERE
	regional 	attorney
	wrote
	to
	Ruiz
	advising 	her 	of 	the
deficiencies
	of 	her 	charge 	and 	seeking 	additional 	information.
1
All 	dates 	refer 	to
	1993
	unless 	specified 	otherwise.
2EERA
	is 	codified 	at
	Government 	Code
	section
	3540
	et 	seq.

On
	June
	29,
	at
	Ruiz'
	request,
	the
	case
	was
	placed
	in
	abeyance
	due
to 	her
	medical 	problems.
	On
	September
	27,
	the 	regional
	attorney
notified
	CSEA
	that
	Ruiz
	continued
	to
	request
	that
	the
	case 	be
held
	in
	abeyance.
	CSEA
	objected 	to 	further
	delays
	and
	a
	warning
letter
	was
	sent 	to
	Ruiz 	by
	the 	regional
	attorney
	on
	October
	8,
which
	gave
	her
	until
	October
	18,
	to
	file
	an
	amended
	charge.
After 	receiving
	an
	extension
	of 	time,
	Ruiz
	filed
	an
	amended
charge
	on
	October
	28.
	The
	regional 	attorney
	dismissed
	Ruiz's
charge
	on
	November
	5
	for
	untimeliness
	and
	for
	failure
	to
	state
	a
prima
	facie
	case 	of
	a
	violation
	of
	EERA.
In
	a
	November
	28
	letter
	to
	the
	PERB
	appeals
	assistant,
	Ruiz
requested
	an
	extension
	of 	time
	to
	file
	an
	appeal 	of 	the
dismissal,
	citing
	"medical 	problems.
11	
On
	December
	2,
	the 	appeals
assistant
	granted
	Ruiz 	an
	extension
	of 	time
	to
	file
	her 	appeal
	to
January
	3, 	1994.
	On
	January
	3, 	1994,
	PERB
	received
	from
	Ruiz
	a
copy
	of
	an 	unsigned
	letter
	dated
	November
	23,
	apparently
	from
Dr.
	Patricia
	Dailey,
	indicating 	that
	Ruiz
	was
	being
	treated
	and
was
	"unable
	to 	concentrate
	sufficiently
	to
	manage
	full
	compliance
with
	the 	legal
	time
	frame
	required 	in 	her 	appeal."
	The
	copy
	of
the 	unsigned
	letter
	was
	not
	accompanied 	by 	any
	explanation 	or
specific
	request 	for
	a
	further
	extension 	of 	time.
On
	January
	5, 	1994,
	the 	appeals
	assistant 	notified
	Ruiz
that, 	since
	no
	appeal 	had 	been
	filed
	by
	January 	3, 	1994,
	"the
dismissal 	is 	final
	and
	the 	case
	is
	closed."
2

RUIZ'
	APPEAL
On
	appeal,
	Ruiz
	indicates
	that
	she 	has
	experienced
continuously
	deteriorating
	health
	problems
	since
	December
	1992.
She
	indicates 	that
	these
	health
	problems 	have
	prevented
	her
	from
properly
	pursuing 	her
	charge
	against
	CSEA.
	Consequently, 	Ruiz
indicates 	that
	she
	requested
	a
	letter
	from
	her 	doctor 	concerning
her
	health
	and
	"immediately mailed"
	it
	to
	PERB
	"to 	reach
	the
Jan. 	3, 	'94
	deadline."
	Ruiz
	indicates
	that
	she
	was
	"not
	able 	to
enclose
	any
	explanation 	to 	the
	purpose 	of
	her
	letter
	because
	I
was
	so
	ill
	at·that
	time."
Ruiz
	requests
	an
	additional
	extension
	of 	time
	"for
	a
	few
months"
	so
	that
	she
	can
	recover
	fully
	and 	"have
	all
	the
	strength
to
	continue
	this
	case."
DISCUSSION
PERB
	Regulation
	32132(a)
3	
provides
	for
	parties
	to 	request
extensions
	of 	time:
A
	request 	for
	an
	extension 	of 	time
	within
which
	to
	file
	any 	document
	with 	the
	Board
itself
	shall
	be
	in 	writing
	and
	shall
	be
	filed
at
	the 	headquarters
	office 	at 	least
	three
days
	before 	the 	expiration
	of 	the
	time
required 	for
	filing.
	The
	request
	shall
indicate 	the 	reason 	for 	the 	request
	and,
	if
known,
	the 	position
	of 	each
	other 	party
regarding 	the 	extension. 	Service
	and
	proof
of
	service 	pursuant 	to 	section
	32140
	are
required. 	Extensions 	of 	time
	may
	be
	granted
by
	the
	Board
	itself
	or
	an 	agent 	designated
	by
the
	Board
	itself
	for
	good 	cause 	only.
3PERB
	regulations 	are 	codified 	at 	California
	Code
	of
Regulations,
	title
	8,
	section
	31001
	et 	seq.
3

Ruiz'
	request 	for
	an
	extension
	of
	time
	was
	deficient
	for 	several
reasons.
	First,
	Ruiz'
	request
	was
	not
	filed
	at 	least
	three
	days
before 	the
	filing
	deadline.
	Second,
	she
	sent
	a
	copy
	of
	an
unsigned
	letter
	from
	her 	doctor
	and
	did
	not
	include
	a
	statement
of
	the
	reason
	for
	her 	request,
	an
	indication
	of
	CSEA's
	position
on
	the
	request, 	or
	a
	proof 	of
	service.
	Third,
	the
	doctor's
letter
	Ruiz
	submitted
	is
	dated
	November
	23, 	which
	is
	prior 	to
	the
extension
	of
	time
	Ruiz
	requested
	on
	November
	28, 	and
	was
	granted
on
	December
	2.
	Despite 	her
	assertion 	that
	she 	immediately
	mailed
a
	copy
	of 	the
	letter
	to
	PERB,
	it
	seems
	clear 	that
	Ruiz 	had 	ample
opportunity 	to
	forward
	the
	letter
	and 	an
	appropriate 	request 	for
a
	further
	extension
	of
	time
	prior
	to
	January
	3, 	1994.
	As 	a
result
	of 	the
	deficiencies,
	the 	appeals
	assistant
	properly
.denied
Ruiz'
	request 	for
	a
	further
	extension
	of 	time.
On
	appeal,
	Ruiz
	repeats
	that
	her
	medical 	problems 	have
prevented 	her
	from
	properly 	pursuing 	her 	case
	before
	PERB.
	In
consideration
	of
	these
	problems,
	PERB
	has 	been
very
	flexible
	with
Ruiz
	with 	regard
	to 	deadlines, 	granting 	her 	request 	to 	place 	the
case
	in
	abeyance
	for
	more
	than
	three
	months,
1
and
	granting 	her
prior
	extensions 	of 	time
	including
	one 	30-day
	extension 	of 	time
to
	file
	her 	appeal.
Given
	this 	prior 	flexibility
	on
	deadlines, 	the 	deficiencies
of 	Ruiz' 	request,
	and
	her
	open-ended
	request 	to 	put 	the 	case
	"on
hold
	for
	a
	few
	months," 	the
	Board 	concludes
	that
	good
	cause 	does
not
	exist 	to 	grant 	the 	request 	for 	an 	extension 	of 	time
	in 	this
case. 
4

ORDER
The
	appeal 	of
	the 	denial
	of
	a
	request 	for
	an
	extension
	of
time
	in
	Case
	No.
	SF-C0-442
	is
	DENIED.
Member
	Garcia
	joined
	in
	this
	Decision.
Member
	Carlyle's
	concurrence 	begins
	at
	page 	6.
5

CARLYLE,
	Member,
	concurring:
	I
	would
	also
	uphold
	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board)
	appeals
	assistant's
denial
	of
	the 	request
	for
	an
	extension
	of
	time
	by
	Mercy 	F.
	Ruiz
(Ruiz),
	but
	I
	would
	base
	it
	upon
	PERB
	case
	law.
In 	California 	State
	University
	(Watts)
	(1984)
	PERB
	Decision
No.
	468-H,
	the 	request
	for
	an
	extension 	of
	time
	was 	made
	pursuant
to
	PERB
	Regulation
	32132(a)
1	
which
	states
	as 	follows:
A
request 	for
	an
	extension
	of
	time
	within
which
	to
	file
	any 	document
	with
	the
	Board
itself
	shall
	be
	in 	writing
	and
	shall
	be
	filed
at
	the 	headquarters
	office 	at 	least
	three
days
	before 	the
	expiration
	of
	the
	time
required 	for
	filing.
	The
	request
	shallindicate
	the 	reason
	for
	the 	request
	and,
	if
known,
	the
	position
	of 	each
	other 	party
regarding 	the 	extension. 	Service
	and
	proofof
	service
	pursuant
	to 	section
	32140
	are
required.
	Extensions 	of 	time
	may
	be
	granted
by
	the
	Board
	itself
	or
	an
	agent 	designated
	by
the
	Board
	itself
	for
	good
	cause
	only.
In
	that
	decision,
	PERB
	set 	forth
	the 	general 	standard 	concerning
what
	constitutes
	good
	cause 	and 	whether
	or 	not
	a
	weighing
	of 	the
appropriate 	factors
	would
	operate 	in
	favor 	of 	granting 	the
request 	for
	an
	extension
	of 	time:
We
	feel 	the 	proper
	approach
	is
	to
	weigh
	the
nature 	of 	the 	reasons
	asserted 	to
	be
	"good
cause"
	against 	the 	length 	of 	the 	delay
	and
the 	possible 	prejudice 	to 	the
	opposing
	party.
In general, 	for
	"good
	cause"
	to
	be 	found,
	a
party's
	request 	for
	an extension 	should
	be
based
	on
	circumstances
	that 	are 	unanticipated
or
	beyond
	the
	party's 	control.
1 PERB
	regulations 	are 	codified 	at 	California
	Code 	of
Regulations,
	title
	8, 	section
	31001
	et 	seq.
6

This
	same
	standard
	and
	balancing
	test
	was
	also
	applied
	in
	my
concurring 	opinion
	in
	Los
	Angeles
	Unified
	School
	District
	(1993)
PERB
	Order
	No.
	Ad-249.
The
	facts 	in
	the 	majority
	opinion 	concerning
	the 	procedural
actions
	of
	Ruiz 	and
	the
	grounds
	for 	her 	requests 	for 	extensions
of 	time
	and 	abeyance
	give
	rise
	to
	a
	clear
	inference
	of 	medical
problems
	being
	at
	the 	root
	of
	such
	requests.
	Further,
	Ruiz
alleges 	that
	her
	medical
	problems
	have
	caused
	her
	to
	even
	miss
her
	extension 	deadlines,
	as 	well 	as
	adversely
	affecting
	her
ability
	to 	properly
	pursue
	her
	appeal
	before 	the
	Board
	itself.
The
	standard 	enunciated
	in 	California 	State
	University
(Watts) 	does
	not
	focus
	on
	how
	"flexible" 	or 	"lenient" 	the
	Board
may
	have 	been
	on
	past 	requests,
	but
	on
	whether
	the 	request
	at
issue
	is
	"based
	on
	circumstances
	that
	are 	unanticipated 	or
	beyond
the
	party's
	control."
It
	appears
	that
	a
	strong
	argument
	could
	be
	made
	for
	Ruiz
that 	her 	current 	request 	for
	an
	extension 	of 	time
	now
	before 	the
Board
	is
	based
	upon
	her 	recurring
	medical 	problems 	which
	although
not
	unanticipated
	may
	very 	well
	be 	beyond
	her 	control.
While
	I 	may
	be 	persuaded
	to 	side 	with
	Ruiz 	on
	this 	aspect
	of
the 	standard 	as 	previously 	enunciated,
	I 	am
	compelled
	to
ultimately
	decide 	against 	her
	due
	to 	the 	length 	of 	the 	delay
	and
the 	possible 	prejudice 	to 	the 	opposing
	party.
	As
	previously
noted, 	the 	original
	charge 	by 	Ruiz
	was
	filed 	in
	May
	of 	1993.
2
The
	California
	School 	Employees
	Association
	(CSEA)
	responded 	on
June 	9. 	At
	the 	request 	of 	Ruiz, 	the 	case
	was
	placed 	in 	abeyance
2
All 	dates 	refer 	to
	1993 	unless 	specified 	otherwise.
7

on
	June
	29.
	Only
	at
	the
	subsequent
	urging 	of
	CSEA
was
	the 	case
reactivated
	and
	processed
	to
	its
	current
	status.
I
	find
	that
	the 	length 	of
	time
	which
	has
	transpired 	since
the
	filing
	of
	the
	original
	charge,
	plus 	the
	true
	"open-ended"
nature
	of 	the
	current 	request
	by 	Ruiz
	for
	another 	extension 	of
time
	sufficiently
	weighs
	the
	factors 	to
	be
	considered
	in
	favor
	of
CSEA.
	If
	any
	extension
	is
	granted,
	clearly
	more
	than
	a
	year
	will
have
	passed 	before 	the
	original
	charge 	of 	an
	alleged
	failure
	of
CSEA
	to
	uphold
	its
	duty 	of
	fair
	representation 	in violation
	of
the 	Educational
	Employment
	Relations
	Act
	(EERA) 3	
is
	resolved.
If,
	by
	chance,
	Ruiz
	became
	successful
	in
	her
	appeal
	of 	the
dismissal
	of
	her
	charge,
	a
	complaint
	would
	be
	issued
	and
	the
start
	of
	another, 	perhaps
	equally
	long
	journey,
	would
	commence.
Such
	a
	prospect
	and
	the 	possible 	prejudice
	CSEA
	would
	experience
as
	a
	result
	of 	the 	passage 	of 	such 	time
	militates
	against
	Ruiz.
Accordingly,
	the 	appeal 	of 	the
	PERB
	appeals
	assistant's
denial
	of
	a
	request 	for
	an
	extension 	of 	time
	in
	Case
	No.
SF-C0-442
	should
	be
	denied.
3EERA
	is 	codified 	at
	Government 	Code
	section 	3540 	et 	seq.
8