Board Addresses How Board Agents Process Cases

UPTE-CWA Local 9119 (Witke) (2012) PERB Case No. 2253-H (Issued on 04/23/12)

This case involves an appeal from a dismissal. Charging party asserted two grounds for appeal that I want to discuss. First, charging party asserted that the Board agent who issued the dismissal engaged in improper “ex parte” contact. Specifically, charging party asserted that the Board agent improperly talked with the other side without charging party being part of the conversation. In rejecting any impropriety, the Board held that:

[T]here is no prohibition on ex parte communications in the initial charge processing stage of an unfair practice proceeding… Ex parte communications at the charge processing stage of unfair practice proceedings are a routine and necessary part of the performance of a Board agent’s regulatory duties.

In support, the Board cited to PERB regulation 32620, subdivision (b), which allows Board agents to answer questions and facilitate communication between the parties, and PERB regulation 32620, subdivision (d), which requires Board agents to convey facts to the charging party gathered during the investigation of the unfair practice charge.

Charging party also asserted that the Board agent granted multiple extensions without requiring the other party to comply with PERB regulation 32132, subdivision (b), which requires requests for extensions to be in writing. In its decision, the Board acknowledged that respondent did not comply with 32132, subdivision (b). The Board further stated:

While violations of PERB regulations will not be condoned, neither will they be used to undermine the authority of a Board agent in the performance of his or her duties. The Board agent is responsible for determining whether the facts as alleged in the charge state a prima facie case and whether the charging party is capable of providing admissible evidence in support of the allegations.

Here, although the Board found that respondent did not comply with PERB regulations, the Board held that charging party did not suffer any prejudice. As a result of that finding, the Board denied the appeal and affirmed the dismissal.

Comments:

Experienced PERB practitioners are aware that PERB Board agents routinely talk with the parties individually during the investigation of an unfair practice charge. These conversations are technically “ex parte” since the other side is not privy to them. This decision is the first one I’m aware of that attempts to explain why this practice is permissible under PERB’s regulations.
I’m not sure I’m entirely convinced that the PERB regulations cited make it “clear” that ex parte communication is permissible. It’s not clear to me that the regulations address that issue at all. However, it’s certainly true that the system set up by PERB requires that the Board agent be free to discuss a case with a party without the other party being present. It’s very similar to dealing with a complaint filed with the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission. Once an investigator is assigned, that individual will often have “ex parte” contact (including responding to requests for extensions of time) as part of the investigation. Practically, I have found that conversations with the Board agents are very helpful. Often times the Board agent will point me to the areas where he or she would like more information, and therefore help me focus my response.
With respect to extensions, in the last several months I have heard from practitioners, and personally experienced, a “crack-down” by PERB with respect to PERB regulation 32132, subdivision (b). Before, it was very common to call the Board agent to request an extension of time to file respondent’s initial response and have it granted. You would then confirm the extension in writing to PERB and serve the confirmation on the other party. Several months ago, Board agents began insisting that requests be in writing, as opposed to being just confirmed in writing, and that the position of the other party be put in the request pursuant to PERB regulation 32132, subdivision (b). This decision seems to explain why this change in practice occurred.
I’m fine with PERB’s change in practice. However, it does put respondents in a difficult position in trying to timely respond to charges. PERB’s practice is to require a response fourteen (14) days after the giving you notice of the charge. For many respondents (and this also applies to unions that are respondents), it can take more than fourteen (14) days just to route a charge to the proper individuals in the organization and gather the necessary information. Indeed, I almost always find myself in the position of having to request an extension of time beyond the fourteen (14) days initially provided by the Board agent. Those requests are almost always granted. Now, parties must be sure to make such requests in writing three (3) days before the due date pursuant to PERB regulations. That sometimes is very difficult to do. My hope is that PERB will consider extending the time given to file an initial response. Ideally I would have thirty (30) days to respond; that seems reasonable since that’s what I get to respond to a lawsuit in court.