Decision 2514E – Santa Ana Unified School District

LA-CE-4939-E

Decision Date: February 8, 2017

Decision Type: PERB Decision

View Full Text (PDF)

Perc Vol: 41
Perc Index: 132

Decision Headnotes

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.01000 – In General

A Board agent may, either on a motion by the respondent or with notice and on the agency’s own motion, properly dismiss a complaint on a pre-hearing motion to dismiss where the motion establishes failure to prosecute or an affirmative defense as a matter of law based on undisputed facts. (pp. 19-20, 24-25.) However, in the absence of a hearing, a Board agent is not authorized to resolve factual disputes or make credibility determinations to dismiss an unfair practice case, whether the dismissal occurs during the pre-complaint investigation, or after a complaint has issued but before hearing. (PERB Reg. 32207.) Because in this case, the motion to dismiss asserting failure to prosecute and laches was based on disputed material facts, including the timing and significance of a medical condition suffered by a witness, the Board reversed the dismissal and remanded the matter for hearing within a reasonable time to adjudicate the complaint’s allegations. (pp. 2-3.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

A Board agent may, either on a motion by the respondent or with notice and on the agency’s own motion, properly dismiss a complaint on a pre-hearing motion to dismiss where the motion establishes failure to prosecute or an affirmative defense as a matter of law based on undisputed facts. (pp. 19-20, 24-25.) However, in the absence of a hearing, a Board agent is not authorized to resolve factual disputes or make credibility determinations to dismiss an unfair practice case, whether the dismissal occurs during the pre-complaint investigation, or after a complaint has issued but before hearing. (PERB Reg. 32207.) Because in this case, the motion to dismiss asserting failure to prosecute and laches was based on disputed material facts, including the timing and significance of a medical condition suffered by a witness, the Board reversed the dismissal and remanded the matter for hearing within a reasonable time to adjudicate the complaint’s allegations. (pp. 2-3.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

A Board agent may, either on a motion by the respondent or with notice and on the agency’s own motion, properly dismiss a complaint on a pre-hearing motion to dismiss where the motion establishes failure to prosecute or an affirmative defense as a matter of law based on undisputed facts. (pp. 19-20, 24-25.) However, in the absence of a hearing, a Board agent is not authorized to resolve factual disputes or make credibility determinations to dismiss an unfair practice case, whether the dismissal occurs during the pre-complaint investigation, or after a complaint has issued but before hearing. (PERB Reg. 32207.) Because in this case, the motion to dismiss asserting failure to prosecute and laches was based on disputed material facts, including the timing and significance of a medical condition suffered by a witness, the Board reversed the dismissal and remanded the matter for hearing within a reasonable time to adjudicate the complaint’s allegations. (pp. 2-3.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

Unlike most PERB failure to prosecute cases, in which the charging party fails or refuses to attend or participate in a duly noticed hearing, in this case, the complaint was dismissed without hearing based on a pre-hearing motion. Because the matter was dismissed without hearing, the Board applied the standard governing the pre-complaint investigation of an unfair charge to consideration of pre-hearing motions to dismiss. Although designated as “exceptions” to a proposed decision, the charging party’s filing, which substantially complied with the requirements of PERB Regulation 32635, subdivision (a), was treated as an appeal from dismissal. (pp. 2, 28.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

Unlike most PERB failure to prosecute cases, in which the charging party fails or refuses to attend or participate in a duly noticed hearing, in this case, the complaint was dismissed without hearing based on a pre-hearing motion. Because the matter was dismissed without hearing, the Board applied the standard governing the pre-complaint investigation of an unfair charge to consideration of pre-hearing motions to dismiss. Although designated as “exceptions” to a proposed decision, the charging party’s filing, which substantially complied with the requirements of PERB Regulation 32635, subdivision (a), was treated as an appeal from dismissal. (pp. 2, 28.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

Unlike most PERB failure to prosecute cases, in which the charging party fails or refuses to attend or participate in a duly noticed hearing, in this case, the complaint was dismissed without hearing based on a pre-hearing motion. Because the matter was dismissed without hearing, the Board applied the standard governing the pre-complaint investigation of an unfair charge to consideration of pre-hearing motions to dismiss. Although designated as “exceptions” to a proposed decision, the charging party’s filing, which substantially complied with the requirements of PERB Regulation 32635, subdivision (a), was treated as an appeal from dismissal. (pp. 2, 28.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.13000 – Witnesses; Who May Testify; Board Agents as Witnesses; Self-Incrimination; Immunity; Labor Code Section 1151.2

Due process and fair proceedings required by statutory, regulatory and decisional law preclude PERB from resolving material factual disputes or making credibility determinations in the absence of a formal hearing or stipulated record. (p. 3, fn. 6.) Although the charging party had several medical restrictions that would require modifying the schedule of a hearing, for example, by taking frequent breaks, so that she is not required to sit or stand for more than one hour at a time, such modifications are not inherently unreasonable, nor unprecedented in PERB proceedings where necessary to accommodate a party’s medical condition. (38-39.) Even assuming a full hearing on the merits was impractical or impossible in this case because of the charging party’s medical condition, at minimum, a hearing on the disputed facts underlying the District’s motion to dismiss and its laches defense was necessary before dismissing the case. Alternatively, PERB Regulations authorize a hearing officer to order any person, including a party or material witness who is unable to attend a hearing because of illness or infirmity, to be deposed to ensure that oral testimony is subject to cross examination. (pp. 35-36.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

Due process and fair proceedings required by statutory, regulatory and decisional law preclude PERB from resolving material factual disputes or making credibility determinations in the absence of a formal hearing or stipulated record. (p. 3, fn. 6.) Although the charging party had several medical restrictions that would require modifying the schedule of a hearing, for example, by taking frequent breaks, so that she is not required to sit or stand for more than one hour at a time, such modifications are not inherently unreasonable, nor unprecedented in PERB proceedings where necessary to accommodate a party’s medical condition. (38-39.) Even assuming a full hearing on the merits was impractical or impossible in this case because of the charging party’s medical condition, at minimum, a hearing on the disputed facts underlying the District’s motion to dismiss and its laches defense was necessary before dismissing the case. Alternatively, PERB Regulations authorize a hearing officer to order any person, including a party or material witness who is unable to attend a hearing because of illness or infirmity, to be deposed to ensure that oral testimony is subject to cross examination. (pp. 35-36.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

Due process and fair proceedings required by statutory, regulatory and decisional law preclude PERB from resolving material factual disputes or making credibility determinations in the absence of a formal hearing or stipulated record. (p. 3, fn. 6.) Although the charging party had several medical restrictions that would require modifying the schedule of a hearing, for example, by taking frequent breaks, so that she is not required to sit or stand for more than one hour at a time, such modifications are not inherently unreasonable, nor unprecedented in PERB proceedings where necessary to accommodate a party’s medical condition. (38-39.) Even assuming a full hearing on the merits was impractical or impossible in this case because of the charging party’s medical condition, at minimum, a hearing on the disputed facts underlying the District’s motion to dismiss and its laches defense was necessary before dismissing the case. Alternatively, PERB Regulations authorize a hearing officer to order any person, including a party or material witness who is unable to attend a hearing because of illness or infirmity, to be deposed to ensure that oral testimony is subject to cross examination. (pp. 35-36.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

Due process and fair proceedings required by statutory, regulatory and decisional law preclude PERB from resolving material factual disputes or making credibility determinations in the absence of a formal hearing or stipulated record. (p. 3, fn. 6.) Although the charging party had several medical restrictions that would require modifying the schedule of a hearing, for example, by taking frequent breaks, so that she is not required to sit or stand for more than one hour at a time, such modifications are not inherently unreasonable, nor unprecedented in PERB proceedings where necessary to accommodate a party’s medical condition. (38-39.) Even assuming a full hearing on the merits was impractical or impossible in this case because of the charging party’s medical condition, at minimum, a hearing on the disputed facts underlying the District’s motion to dismiss and its laches defense was necessary before dismissing the case. Alternatively, PERB Regulations authorize a hearing officer to order any person, including a party or material witness who is unable to attend a hearing because of illness or infirmity, to be deposed to ensure that oral testimony is subject to cross examination. (pp. 35-36.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.02000 – Investigation of Charge

Position statements and other materials filed with the Board as part of its pre-hearing investigation are not confidential. PERB Regulation 32620, subdivision (c), expressly requires that a respondent’s position statement be served on the charging party and, in this case, the party asserting confidentiality provided no statutory or decisional authority exempting its position statement from disclosure as a public record under the California Public Records Act. (p. 3, fn. 7.) Similarly, although diagnoses, treatments and other medical information may be subject to a right of privacy, a charging party has no right to submit documentation ex parte to a hearing officer and keep it from the respondent, if such information is to be used as the basis for a decision affecting the case, including whether to place the matter in abeyance. (p. 32, fn. 35.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.11000 – Response to Charge

Position statements and other materials filed with the Board as part of its pre-hearing investigation are not confidential. PERB Regulation 32620, subdivision (c), expressly requires that a respondent’s position statement be served on the charging party and, in this case, the party asserting confidentiality provided no statutory or decisional authority exempting its position statement from disclosure as a public record under the California Public Records Act. (p. 3, fn. 7.) Similarly, although diagnoses, treatments and other medical information may be subject to a right of privacy, a charging party has no right to submit documentation ex parte to a hearing officer and keep it from the respondent, if such information is to be used as the basis for a decision affecting the case, including whether to place the matter in abeyance. (p. 32, fn. 35.)

104.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD
104.02000 – Administrative Procedure Act as Affecting PERB Jurisdiction and Procedure

PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.13000 – Witnesses; Who May Testify; Board Agents as Witnesses; Self-Incrimination; Immunity; Labor Code Section 1151.2

PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

Even though it may contain other, extraneous and improper matters, where an appeal asserts various factual, legal and procedural errors, explains the grounds for reversal, and provides points and authorities in support of its arguments, the filing substantially complies with the requirement that an appeal “place the Board and the respondent on notice of the issues,” by identifying the substance of the Dismissal and the specific errors of fact, law, or application of law to fact which she claims warrant reversal. (PERB Reg. 32635, subd. (a).) (p. 19.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

Even though it may contain other, extraneous and improper matters, where an appeal asserts various factual, legal and procedural errors, explains the grounds for reversal, and provides points and authorities in support of its arguments, the filing substantially complies with the requirement that an appeal “place the Board and the respondent on notice of the issues,” by identifying the substance of the Dismissal and the specific errors of fact, law, or application of law to fact which she claims warrant reversal. (PERB Reg. 32635, subd. (a).) (p. 19.)

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

Even though it may contain other, extraneous and improper matters, where an appeal asserts various factual, legal and procedural errors, explains the grounds for reversal, and provides points and authorities in support of its arguments, the filing substantially complies with the requirement that an appeal “place the Board and the respondent on notice of the issues,” by identifying the substance of the Dismissal and the specific errors of fact, law, or application of law to fact which she claims warrant reversal. (PERB Reg. 32635, subd. (a).) (p. 19.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Notwithstanding the deference usually shown by the Board toward an ALJ’s factual findings based on credibility determinations, because in this case, there was no formal hearing on the record and no live testimony to serve as the basis for observational or non-observational credibility factors, the Board owed no deference to the ALJ’s findings or credibility determinations. The Board applies a de novo standard of review and is required to consider the entire record. As the ultimate finder of fact, it is free to draw its own findings and conclusions from the record, even where they are contrary to those of an ALJ. (PERB Reg. 32300.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

Notwithstanding the deference usually shown by the Board toward an ALJ’s factual findings based on credibility determinations, because in this case, there was no formal hearing on the record and no live testimony to serve as the basis for observational or non-observational credibility factors, the Board owed no deference to the ALJ’s findings or credibility determinations. The Board applies a de novo standard of review and is required to consider the entire record. As the ultimate finder of fact, it is free to draw its own findings and conclusions from the record, even where they are contrary to those of an ALJ. (PERB Reg. 32300.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.06000 – De Novo Review; Standard of Review by Board

Notwithstanding the deference usually shown by the Board toward an ALJ’s factual findings based on credibility determinations, because in this case, there was no formal hearing on the record and no live testimony to serve as the basis for observational or non-observational credibility factors, the Board owed no deference to the ALJ’s findings or credibility determinations. The Board applies a de novo standard of review and is required to consider the entire record. As the ultimate finder of fact, it is free to draw its own findings and conclusions from the record, even where they are contrary to those of an ALJ. (PERB Reg. 32300.)

1401.00000 – GENERAL LEGAL PRINCIPLES; LACHES
1401.01000 – In General

Generally, unreasonable delay, by itself, does not establish prejudice for the purpose of laches. Rather, the respondent’s reliance on such delay must have been detrimental in some respect and the detrimental change must have been caused by or at least occurred during the period of the unreasonable delay. Because here, the charging party requested that the case be placed in medical abeyance in January 2009, before the respondent’s witness suffered a debilitating medical condition allegedly affecting his memory, any prejudice suffered by the respondent as a result of witness’s memory loss was not caused by charging party’s delay. (p. 34.)