Decision A397H – Regents of the University of California (Lawrence Berkeley National Laboratory)
Decision Date: February 22, 2013
Decision Type: Administrative Appeal
Description: The complaint and underlying charge included retaliation allegations brought by the charging party on behalf of two employees. After a formal hearing on the merits, the complaint was dismissed in a proposed decision to which neither party excepted. One of the two employees sought to file exceptions, and requested an extension of time from the Board. The Appeals Assistant denied the request due to lack of party status.
Disposition: The Board affirmed the decision of the Appeals Assistant, concluding that only parties to a case may file exceptions to a proposed decision and joinder when a case is pending before the Board is not contemplated by PERB’s regulations.
Perc Vol: 37
Perc Index: 178
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
After a formal unfair practice hearing resulting in a proposed decision dismissing the unfair practice charge, the proposed decision became final because neither of the parties filed a statement of exceptions; an individual employee on whose behalf the exclusive representative filed a charge of discrimination/retaliation lacked party status to file a statement of exceptions; to accord the employee the right to appellate review of the proposed decision would not only contravene the regulatory rules governing the filing of exceptions, but would also undercut the charging party’s right to control the administrative litigation of its own case.
1109.02000 – Statute of Limitations
Joinder is not appropriate on appeal from an administrative decision denying a request for an extension of time to file a statement of exceptions for lack of party status; to grant joinder would be to revive a proceeding that has already concluded, a result as problematic as "impeding" an ongoing proceeding, which is gorunds for denial of joinder under PERB Regulation 32164.