Lincoln Unified School District (PERB A035E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
LINCOL~
UNIFIED
TEACHERS
ASSOCIATION,
CTA/NEA,
Employee Organization,
and
LINCOL."\J
UNIFIED
SCHOOL
DISTRICT,
Employer,
	APPEI.LANT. 
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Case
No.
	S-CE-29
PERB
Order
No.
	Ad-
35
Administrative Appeal
May
30, 	1978
.Appearances:	
C.	
M.	
Sullivan,
	Jr.,
	Attorney
	(Litts, llillen,
	Perovich,
Sullivan
and
Newton)
	for
Lincoln Unified Teachers Association,
crA/NEA;
Rebecca
A.
	Davis, 	Deputy Cotmty Counsel, 	San Joaquin County,
	for
Lincoln
Unified School
District.
Before Gluck, 	Cha,irperson; Gonzales and Cossack
Tw-ohey, :M'embers.
OPINION
This
	is
an appeal by the Lincoln Unified School
District
from
the
rejection
by the executive
assistant
to the Board
of
its
	exceptions
	to
	the
hearing
officer's
recormiended decision.
	The
executive
assistant to the
Board
rejected the
District's
exceptions as untimely
filed
pursuant
to
Board
rule
	35030. 1
~e
Board's rules are codified 	in California Administrative Code,
	title
8.
Section 35030 provided
at
the times relevant to this
	appeal:
Statement of Exceptions to Reconrnended Decision.
(a) Within seven calendar days
after service of the recomnended
decision a party
may
file
a statement of exceptions to the
recorrmended decision or any part of the record or proceedings.
(b) 	The
filing of the statement of exceptions submits the case
to the Board itself.
Section 35030 was repealed and replaced by section 32300 effective
March 20, 	1978.

FACTS
The
recomnended
decision
in this
	case
was
served on
appellant
on
March 8, 	1978, making exceptions due on.March 15, 	1978.
	The
District
did
not
request
an extension
of
time
for
the
filing
of
exceptions and
did not
file its
exceptions 1.m.til
:March
17, 	1978, 	two days
	late.
	The
executive
assistant
to the
Board
rejected
the
exceptions on the
gro1.m.d
they were
unti.rrely
filed.
DISCUSSION
The
District
urges the Board
to
accept and consider
its
i.mtimely
filed
exceptions on
several
grounds.
	The
Board has examined each argument and
concludes
	that
the executive
assistant
to
	the Board
was
	correct
in
rejecting
the
exceptions.
The
District
first
argued
the
Board should accept the exceptions because
the
District
was
	confused regarding the difference
in
meaning between
"service"
and
"filing."
	The
Board, 	however, 	notes
	that
these terms
	are
clearly
defined by the Board's
rules.
	At the times
relevant to
this
	appeal,
rule
32140 provided:
Service. 	All documents
referred to
in
these
rules
	and
regulations, 	except subpoenas,
	shall
be considered "served"
by the Board
or
a
party
when
personally delivered ordeposited
in
the
first-class
mail properly addressed.
and
rule
35002 (b) 	provided:
An.
lm.fair practice charge, 	an application for joinder and
a
petition to submit an informational
brief shall
be
considered
"filed"
by a party
when
actually received by
the appropriate regional office. 	All other documents
referred to
in
these rules and regulations shall
be
considered "filed" by a party
when
actually received by
the appropriate regional office accompanied by proof of
service of the document on each party.
-2-

The Board must assume
that
each
party practicing
before
it
is
familiar
with
the
Board's
rules,
	so
confusion regarding the
meaning
of
"service"
and
"filing"
is
not
a
valid
excuse
for
filing
exceptions
	late.
The
District's
	second argument
is
	that rule
35030
is
mreasonable
because
it
allows
only
seven
days
	for
the
filing
of
exceptions.
	In
this
connection,
	the
Board
notes
	that
in
rrost
cases
	coming
before
it
the
parties
have
filed their
exceptions
within the
seven day
period
provided by
rule
35030.
	Also,
	the
District in this
	case
did not
request the
Board
to
extend the
seven day
filing
period.
The
District's
	third
argument
is
	that
it
did not request
an
extension
of
time
for
filing
because
the
Board does
not
have any
rules
	governing such
a
procedure.
	The Board
notes
	that
at
	the tinEs
relevant to this
appeal,
rule
	35002(d)
	provided:
With the
exception
of
the
charge, 	upon
timely
application
and a showing
of
good cause
the
Board
may
extend
the
requirecl
filing
date
[
of
any document
required to
be
filed
with the
Board].
Finally,
	the
District
argues
	its
exceptions
were
not required to
be
filed until
March 22, 	1978,
based
upon
the
following reasoning. 	Rule 32130
provides: 
Computation
of
Time.
	In
computing any
period of
time under
these rules
and
regulations, 	the period
of
time begins
	to
run the
day
after
the act or
occurrence
referred to.
Thus,
	the
seven days began
to
run
on March 9, 	1978,
	the
day
after
the
Board
served the
recoornended
decision.
	Code
of Civil
Procedure
section
12 provides:
The time
in
'Which any
act
provided by law
is
	to be done
is
computed by excluding the
first
	day, 	and including the
last
....
It
	is
argued
that this section should be superimposed on
rule
32130 so that
the seven days began
to run one day
after
March 9, 	which would be M:rrch 10.
-3-

Then,
	Code
of
Civil
Procedure
section
1013(a) provides:
In
the
case
of
service
bv ma.il. . .
	The
service
is
complete
at
the
time
of
the
deposit, but
if,
	within
a given number
of
days
after
such
service,
	a
right
may
be exercised,
	or
an
act
is
	to
be done by
the
adverse
party,
	the
	time
within
which such
right
may
be exercised
or act
be done,
	is
	extended
five
	days
if
the place
of
address
	is
within
the
State
of
California
....
'Th.e
District
concludes
that
seven days
after
:tvrarch
10
is
:tvfarch
17,
	plus
five
days
	for
mailing under
section
1013(a)
makes March 22,
	1978
the day.
on which exceptions were due
to
be
filed
by the
District.
	The
Board
rejects 	this
argurrent.
	The Code
of
Civil
Procedure
applies
only
to
civil
actions
	in
the courts,
	so
section
12
and
section
1013
do
not
apply
to
administrative actions before
this
Board.
	In
any case,
	rule
32130 and
section
12
state
the
sa:rre
law . 	.Applied
in this
	case, 	the seven day
period
began on
"March
9.
The
Board,
	not
being persuaded by
the
arguments
	in
favor
of
accepting
the
exceptions
filed late
by
the
District,
	sustains the decision
of
the
executive
assistant
to the
Board
rejecting
	the exceptions.
ORDER
The
decision
of
the executive
assistant
	to the Board,
	rejecting
	the
exceptions to the hearing
officer's
recomIEnded decision
filed
by
the
Llncoln Unified School
District,
	is
sustained.
/~,1/-,f7h
By: 	Bayrrond
J.
	Gonzales ,
Member
Jerilou
Cossack Twohey, 	Member,
	dissenting:
I _disagree _with
__
tl1~_majQrity_1
_§Li:::'.onclusion
that the executive assistant
properly rejected the District's exceptions to the hearing officer's recorrmended
decision. -4-

The recomnended
decision
was
"served" on
the
parties
on
March
8, 	1978.
The
District
actually
received
the
reconrnended decision on Friday, March 10.
Exceptions were
teclmically
due
to
be
received
by
this
Board on Wednesday,
March 15. 	The
District
deposited
its
exceptions
in
the
IIBil on Tuesday,
M:rrch
14; 	they were
actually
received by
the
Board on Friday, March 17.
	In
effect,
	the IIBjority has mechanically
applied the then-existing
rules
1
to
afford
the
District
only
three
w0rk days--MJnday, 	March 13; Tuesday, 	March 14;
and Wednesday,
	:March
15--within
'Which
to
prepare
its
exceptions and
make
sure
they
were
actually
received by
this
Board.
This
is
yet
another case,
	of
which
there
have been
many,
2 where a IIBjority
of this
fuard has mechanically applied an unreasonable
rule
in
such a fashion
as 	to
deny a
party
its
right
to
appeal a lower decision. 	I do
not
advocate
pennitting parties
	to
ignore the
	tine
requirements
established
by
the
Board's
rules
and
regulations.
	However, where as here, 	the time requirements
are
mreasonable, 	the long-established legal principle of
not pennitting
minor
procedural defects 	to preclude the examination
of
an
actual
controversy by
an
appellate
body should
prevail.
3 Accordingly, 	I would reverse the
executive
assistant
and
entertain
the
District's
	e._xceptions.
.	
~
	~
Jerilou
Cossack
Tv.x)hey,
	M:rnber~
~e
rules
were amended on March 20, 	1978 to provide nore time
for filing
exceptions.
2see :Manteca Unified School
District
	(8/5/77)
	EERB
Decision
No.
	21;
San Francisco Unified School
District
	(9/8/77)
	EERB
Decision
No.
	23; 	Santa
Ana Unified School
District
	(10/28/77)
	EERB
Decision No. 	36; Anaheim Union
High School
District
	(3/16/78)
	PERB
Order
No.
	Ad-27.
J
')
Pesce v. 	Department of Alcoholic Beverage Control 	(1958) 	51 Cal.2d 310,
313; 	See also Gibson v.
	Un
	lo 	t 	Insurance 	eals Board (1973) 	9 Cal.3d
494 and Flores v. 	Unemployment Insurance Appeals Board 	1973 	30 Cal.App.3d
681.
-5-

STAT! OP CALIFORNIA 	E>MUND
G.
BROWN JR., c;..,__,
PUBLJC
	EMPt.-OYMENT RnATJONS BOARD
'i,eadquarters Office
23
	12th Street, Suite
201
Sacrcmento, California	
95814
(916) 322-3088
March 	17, 	1978
Ms.
	Rebecca 	Davis
Deputy 	County 	Counsel
Courthouse
	-
	Room
	711
Stockton,
	CA
	95202
Re:
	Lincoln 	Unified
	Teachers
	Association,
	CTA/NEA
vs. 	Lincoln
Unified
	School
	District,
	S-CE-29
Dear Ms.
	Davis:
We
	received
	you:r
	exceptions 	to 	Hearing
	Officer's
	Decision
	in
	the
above-captioned 	case,
	on
	behalf 	of
	the 	Lincoln 	Unified
	School
District.
	Unfortunately,
	you:r
	exceptions
	were
	not 	timely
	filed
according 	to 	Section
	35030
	of 	the 	Board's
	rules
	and
	regulations.
Section
	35030
	states:
	"Within 	seven
	calendar
	days
	after
	service
of 	the
	recommended
	decision
	a
	party
	may
	file
	a
	statement
	of
exceptions
	to 	the
	recommended
	decision 	or
	any
	part 	of
	the 	record
or 	proceedings."
The
	decision
	was
	served
March 	8, 	1978, 	making
	exceptions
	due
March 	15, 	1978. 	Your
	exceptions
	were
	not
	filed 	in 	this 	office
until
	March 	17, 	1978, 	ma.king 	them two 	days
	late.
As 	a
	result
	of 	this 	fai1ure 	to 	timely
	file,
	your 	exceptions 	cannot
be 	submitted 	to 	the
	Board
	itself
	for 	consideration. 	Please
	be
advised 	that
	while 	there 	are
	no
	rules
	to
	this 	effect,
	you
	are
welcome
	to 	appeal
	this 	rejection.
	Should you 	choose 	to
	do
	so,
	your
appeal 	should be
	filed 	in 	this 	office
	on
	or before
	March 	27, 	1978.
Very	
truly	
y~~l_
- 	N
BARBER
Executive Assistant 	to 	the 	Board
SB:dd