Los Angeles Community College District (McConnell) (PERB 0395E)

STATE 	OF 	CALIFORNIA
DECISION 	OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
TERRY McCONNELL,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	LA-CO-258
PERB Decision No. 	395
August 15, 	1984	TERRY McCONNELL,
Charging 	Party,
v.
LOS 	ANGELES 	COMMUNITY 	COLLEGE
D I S T R I C T ,
Respondent.
Case No. 	LA-CE-1758
Appearances: 	Terry McConnell, 	in propria persona.
Before Hesse, Chairperson; 	Jaeger 	and Morgenstern, Members.
DECISION
HESSE, 	Chairperson: 	In both of 	these cases, 	which have
been 	consolidated 	on 	appeal, 	Charging 	Party Terry McConnell
appeals 	the 	administrative 	decision 	of 	the Executive Director
of 	the 	Public Employment Relations Board 	(PERB 	or Board)
rejecting 	his 	appeals 	of 	dismissals 	in 	the 	underlying
unfair 	practice 	charges 	for 	failure 	to satisfy 	the 	PERB
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regulation1 requirements. 	For 	the 	reasons 	discussed 	herein,
we 	deny McConnell's 	appeals.
PROCEDURAL 	HISTORY AND 	FACTS
McConnell 	filed 	unfair 	practice 	charges 	against 	the
California School Employees Association 	(CSEA)2 and 	the Los
Angeles 	Community College 	District 	(LACCD).3 In 	each 	of
these 	cases, 	a Board 	agent dismissed 	the 	charge 	because 	it
failed 	to demonstrate 	a 	violation of 	the Educational Employment
Relations Act 	(EERA).4 	McConnell was 	informed 	by 	letter 	that
he 	had 	the 	right 	to 	appeal 	the 	dismissals of 	the 	charges. 	The
dismissal 	letters 	included 	both 	instructions 	on 	how 	to 	file 	an
appeal 	and 	the 	requirements 	concerning 	service 	to 	the 	other
party.5
1PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et seq.
2LA-CO-258, 	filed February 15, 	1983.
3LA-CE-1758, 	filed March 18, 	1983.
4The 	correctness 	of 	the 	dismissals 	of 	the 	underlying
unfair 	practice 	charges 	is 	not 	an 	issue 	before 	the Board 	itself,
5Immediately 	following 	the 	"right 	to 	appeal" 	section was
the 	following:
Service
All 	documents 	authorized 	to 	be 	filed 	herein
must 	also 	be 	"served" 	upon 	all parties 	to
the proceeding, 	and a "proof of 	service"
must 	accompany 	the 	document 	filed 	with 	the
Board 	itself 	(see 	section 	32140 	for 	the
required 	contents 	and a sample form). 	The
document 	will 	be 	considered 	properly
N	2

On May 	23, 	1983, 	McConnell 	appealed the Board 	agent's
dismissal of LA-CE-1758. 	On June 16, 	1983, 	the PERB Executive
Director 	rejected 	the 	appeal because 	the 	LACCD was 	not 	served
with 	a 	copy 	of 	the 	appeal 	and McConnell 	failed 	to 	furnish 	proof
of 	service 	as 	required 	by PERB 	regulation 	32635.6 On
June 	24, 	1983, McConnell appealed the Executive Director's
rejection 	to 	the Board 	itself.7 Once 	again, 	the Charging
Party 	failed 	to 	serve 	the LACCD.
"served" 	when 	personally 	delivered 	or
deposited 	in 	the 	first-class mail 	postage
paid 	and 	properly 	addressed.
6Regulation 	32635 	states 	in 	relevant 	part:
(a) 	Within 	20 days of 	the 	date of 	service
of 	a dismissal, 	the 	charging party may
appeal 	the 	dismissal 	to the Board 	itself
. . . . 	[S]ervice 	and 	proof 	of 	service 	of
the 	appeal 	on the 	respondent 	pursuant 	to
Section 	32140 	are 	required.
7The 	requirements 	for 	filing 	an 	appeal 	to 	the Board
itself 	are 	set out 	in PERB 	regulation 	32360, 	which 	states:
(a) 	An 	appeal may be 	filed with 	the Board
itself 	from 	any 	administrative 	decision,
except 	as 	noted 	in Section 	32380.
(b) 	An original 	and 	5 	copies of 	the appeal
shall 	be 	filed with 	the Board 	itself 	in 	the
headquarters 	office 	within 10 	days 	following
the 	date 	of 	service 	of 	the 	decision or
letter 	of 	determination.
(c) 	The 	appeal must be 	in writing and must
state 	the specific 	issue(s) 	of procedure,
fact, 	law or 	rationale 	that 	is 	appealed 	and
state 	the grounds 	for 	the 	appeal.
(d) 	Service 	and proof 	of 	service 	of 	the
appeal 	pursuant 	to Section 	32140 	are
required.
3

McConnell 	appealed 	the 	dismissal 	of LA-CO-258 	on
July 20, 	1983. 	Although 	a "proof of 	service" 	was 	attached 	to
his appeal, 	there was no evidence that the Respondent, 	CSEA,
had 	been 	served.8 The 	proof 	of 	service 	showed 	that 	envelopes
were 	addressed 	solely 	to the PERB 	appeals 	section. 	On
July 26, 	1983, 	the PERB 	Executive Director 	rejected 	the 	appeal
as 	being 	improperly 	filed 	because 	the Respondent 	was 	not
served, 	as 	required 	by PERB 	regulation 32635.
On August 1, 	1983, 	Charging Party filed 	an 	appeal 	to the
Board 	itself 	of 	the Executive Director's 	rejection of 	his
July 20 	appeal. 	Again, 	McConnell 	failed 	to serve 	the
Respondent, CSEA.
In his June 24, 	1983 	appeal 	in LA-CE-1758, McConnell states
that 	he was 	not made 	aware 	of 	the 	service 	requirement 	by the
instructions 	in the Board 	agent's May 3, 	1983 	letter. 	He
claims 	that
[t]he 	instructions 	on 	the 	"Right 	to Appeal"
[section of 	the May 	3, 	1983 	letter] 	. . . .
were 	followed 	to 	the 	letter. 	There was 	no
mention of 	any 	'proof 	of 	service' 	by any
other 	party as 	the 	appeal 	was 	in 	fact
certified 	by 	the United States Post Office.
(Emphasis 	in original.)
He 	also 	requests 	that 	the Board 	itself 	" . . . 	make 	all
instructions 	to 	complaintant 	[sic] 	clear 	so 	that 	future
misunderstandings or mis-leadings 	[sic] 	may be 	avoided."
8Indeed, 	CSEA 	was 	not 	served.
4

In his second appeal, 	dated August 1, 	1983, McConnell
complains 	that 	although 	he 	was 	required 	to 	serve 	the 	other
party, 	he was 	not 	served with 	an Answer 	by the Respondent. 	He
contends 	that 	such 	requirements 	should 	be 	reciprocal. 	Also,
McConnell 	fears 	that 	by dismissing 	his 	charges, 	PERB 	has 	shown
partiality 	towards 	CSEA.
DISCUSSION
Both 	cases 	(LA-CO-258 	and LA-CE-1758) 	were 	dismissed 	by
Board 	agents 	because McConnell 	failed 	to 	state 	a prima 	facie
violation of EERA. 	McConnell 	appealed 	both 	dismissals;
however, 	in both, 	he 	failed 	to serve 	the other 	parties or 	to
file proofs 	of 	service. 	His 	appeals were 	rejected 	because 	of
the 	lack of 	service 	to the 	other 	parties. 	In the 	rejection
letters, 	the 	requirements of 	"service" 	and "proof of 	service"
were 	specified. 	McConnell 	appeals 	these 	rejections 	by the
Executive 	Director. 	Although 	he 	had 	been 	previously 	informed
of 	the service 	requirements, 	he 	again failed 	to serve
Respondents. 	He did attach 	"proofs of 	service" 	to his 	appeals;
however, 	they did 	not 	show that 	he 	served 	either Respondent.
PERB 	regulation 	32635 	states 	that, 	along with 	filing 	the
original appeal 	and 	five 	copies with 	the Board 	itself, 	"service
and 	proof 	of 	service 	of 	the 	appeal 	on 	the 	respondent pursuant
to 	section 	32140 	are 	required." 	These 	requirements 	are 	not
merely ritualistic. 	They 	are 	basic 	to providing 	due 	process 	to
the 	involved 	parties.
5

PERB 	regulation 	32140 	sets 	out 	the 	service 	requirements.
Regulation subsection 	(c) 	states 	that 	"service 	shall 	be on 	all
parties 	to 	the 	proceedings 	and 	shall 	be 	concurrent 	with 	the
filing 	in question." 	Although McConnell 	claims, 	inter 	alia,
that 	he 	did 	not 	know of 	the 	requirement 	to 	serve 	the 	appeal 	on
the 	other 	parties, 	the 	requirements 	were 	clearly 	laid out 	in
the PERB 	regulations 	and 	both Board 	agents 	explained 	the
requirement 	that 	the 	documents 	"be 	'served' 	upon 	all parties 	to
the 	proceeding[s]."
Thus, 	McConnell was given 	sufficient 	information 	to
properly appeal 	the 	dismissal 	of 	the 	unfair 	practice 	charges.
Failure 	to 	follow 	the 	service 	and 	proof 	of 	service 	requirements
is 	sufficient ground 	for 	denying 	an 	appeal, 	and 	the Executive
Director 	properly 	rejected 	McConnell's 	appeals.
McConnell's August 1, 	1983 	appeal 	does 	not 	allege error 	by
the Executive Director. 	However, 	to assist McConnell 	in his
understanding 	of 	due process 	requirements, 	we will 	respond 	to
his concerns.
CSEA did not 	file 	an 	answer 	with PERB, 	thus 	no 	issue 	is
presented 	regarding 	service 	of 	an 	answer 	on 	the Charging
Party. 	We 	do 	not 	know why CSEA did 	not 	file 	an 	answer, 	but 	it
is 	likely 	it did 	not because 	it was 	not 	served with 	the appeal
and 	thus 	did 	not 	know of 	the 	further 	litigation. 	Obviously,
reciprocal 	service requirements can only 	be 	enforced 	if 	the
66

Respondent 	files 	an 	answer. 	If 	none 	is 	filed with PERB, 	there
is 	nothing which 	the Board 	can 	demand 	be 	served 	on 	the Charging
Party.
Finally, 	there 	is 	no basis 	to support McConnell's claim
that PERB 	has shown partiality 	to CSEA. 	The 	service
requirements 	are 	quite 	clear, 	and 	the Charging Party was
specifically 	informed of 	them by the Board 	agents' 	letters.
Rather 	than 	demonstrating 	partiality 	to CSEA, 	the 	facts 	reveal
that 	the Executive Director 	even waived 	a 	time 	limit
requirement 	when McConnell 	filed 	an 	untimely 	appeal.9 If
anything, 	PERB 	went out of 	its 	way 	to assure McConnell 	a forum,
if 	he 	had 	taken 	the 	proper 	steps 	in 	filing 	his 	appeals.
In sum, 	we 	find 	that McConnell's appeals 	were 	properly
dismissed 	because 	he 	failed 	to 	follow 	the 	established 	and 	clear
procedural 	requirements for 	filing 	those appeals.
9Regulation 	32135 	states:
All 	documents shall 	be 	considered 	"filed"
when 	actually 	received 	by 	the 	appropriate
PERB 	office 	before 	the 	close 	of 	business 	on
the 	last 	date 	set 	for 	filing or 	when 	sent 	by
telegraph or 	certified United States mail
postmarked 	not 	later 	than 	the 	last 	day 	set
for 	filing 	and 	addressed 	to 	the 	proper PERB
office.
Charging 	party mailed 	this 	appeal 	by 	regular 	mail 	on
June 	24, 	1983, 	the last day he could 	file a timely appeal. 	It
was 	not received until June 30, 	1983, 	six days 	late. 	The
Executive Director, 	however, 	accepted this appeal, 	but notified
McConnell 	that 	he 	should 	heed 	the 	regulation 	in 	the 	future.
7

ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law, 	and the 	entire 	record 	in this 	case, 	Charging Party
Terry McConnell's 	appeals 	in Case Nos. 	LA-CO-258 	and LA-CE-1758
are 	hereby DENIED.
Members Jaeger 	and Morgenstern 	joined 	in 	this 	decision.
Co
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