Redding Elementary School District (PERB A039E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
REDDING
	ELEMENTARY 	SCHOOL
	DISTRICT,
Employer,
	APPELLANT,
and
REDDING
	TEACHERS
	ASSOCIATION,
CTA/NEA,
Employee
	Organization.
)
)
)	
Case 	Nos.
	S-R-437
s-uc-s
PERB
	Order
	No.
	Ad-39
Administrative
	Appeal
June
	21, 	1978
)
}
)
)
)
)
)
)
Appearances: 	Robert
	G.
	Walters,
	Attorney 	(Biddle, 	Walters
	and
Bukey)
	for
	Redding
	Elementary 	School
	District;
	John
	Minoletti
and
	Jack 	Polance, 	Attorneys
	(Barr
	and
	Minoletti) 	for
	Redding
Teachers
	Association,
	CTA/NEA.
Before 	Gluck,
	Chairperson;
	Gonzales
	and
	Cossack
	Twohey,
	Members.
OPINION
This
	is
	an
	appeal
	by
	the
	Redding
	Elementary 	School
	District
(hereafter 	District)
	from
	the 	executive
	assistant
	to 	the
Board's
	rejection
	of 	the
	District's
	exceptions 	to 	the 	hearing
officer's
	proposed
	decision 	dated 	January 	3, 	1978,
	in 	the
above-captioned 	case.
FACTS
The
	hearing
	officer's
	proposed
	decision
	found
	that 	certain
employees 	were 	not
	management 	employees
	within 	the
	meaning
	of
the 	Educational
	Employment
	Relations 	Act.
1 The
	executive
lGov. 	Code
	sec.
	3540
	et 	seq.

assistant
	to
	the
	Board's
	rejection
	of 	exceptions
	was
	on
	the
ground
	that
	they
	were
	not
	timely
	filed.
On
	January 	5,
	1978,
	the
	proposed
	decision
	of 	the
	hearing
officer
	was
	received
	by
	the
	District.
	This 	proposed
	decision
contained
	notice
	of 	the
	District's
	right
	to
	file
	exceptions.
It
	stated:
The
	parties
	have
	seven
	(7)
	calendar
	days
from
	receipt
	of
	this
	proposed
	decision 	in
which
	to
	file
	exceptions 	in
	accordance 	with
section
	33380
	of 	the 	Board's
	rules
	and
regulations.
	If
	no
	party
	files
	timely
exceptions,
	this
	proposed
	decision
	will
become
	final
	on
	January 	16,
	1978,
	and
	a
Notice 	of 	Decision
	will
	issue
	from
	the
	Board.
In
	addition,
	the
	Sacramento
	regional
	director's
	cover
letter
	of 	January 	3,
	1978,
	to 	the 	hearing
	officer's
	proposed
decision 	indicated
	that
	any
	party 	to
	the 	proceeding 	could
	file
a
	statement 	of 	exceptions
	and
	stated:
An
	original
	and
	four 	copies 	of 	the 	statement
of 	exceptions
	must
	be
	filed
	with 	the
	Board
within
	seven
	(7)
	calendar
	days
	after 	receipt
of 	the 	proposed
	decision
	as
	provided
	in
section
	33380
	of 	the
	EERB's
	rules
	and
regulations 	(Part
	III, 	title
	8, 	Cal.
	Admin.
Code).
As
	noted, 	the 	hearing
	officer's
	proposed
	decision
	was
received
	by
	the
	District
	on
	January 	5,
	1978.
	Therefore,
	the
last	
day	
for 	exceptions 	to
	be
	filed
	with 	the 	Public
Employment
	Relations
	Board
	(hereafter
	Board) 	was
January 	12, 	1978.
2 The
	District's
	statement 	of 	exceptions
2cal.
	Admin. 	Code,
	tit.
	8, 	sec.
	33020
	states 	that:
File 	with 	Board. 	"File 	with 	the 	Board" 	or
"File 	with 	the 	regional 	office"
	means
personal 	delivery 	or 	actual 	delivery 	by
certified 	mail 	to 	the 	Board.2

was
	actualJy
	received
	at
	the
	Board
__
hea<lqu~1:"_~_e_E~
__
ir1.
	Sa._~:r-c:1._~~n_t_o
___
0_:1:1
January 	13,
	1978.
	On
	January 	16,
	1978,
	the
	executive
	assistant
to
	the
	Board,
	pursuant 	to
	rules
	33380 	and
	33390,
3
issued
	the
Board
	order
	declaring
	the
	proposed
	decision
	of 	the 	hearing
officer
	to
	be
	the
	final
	decision.
DISCUSSION
In
	its
	appeal,
	the
	District
	contends
	that,
	read
	together,
rules
	32130 4
and 	33380 5
result
	in
	a
	one-day
	"grace 	period"
in 	the
	total
	time
	in
	which
	an
	appellant
	may
	file
	a
	timely
statement 	of 	exceptions.
	Specifically,
	the
	District
	argues
that
	reading
	these
	two
	sections
	together
	results
	in
	starting
the 	appeal 	period 	"the
	day
	after
	the
	day
	after 	receipt."
By 	commencing
	the
	seven-day
	period 	for
	filing
	its
	statement
of 	exceptions
	on
	January 	7,
	1978,
	the
	District
	argues,
	its
filing
	on
	January 	13,
	1978,
	would 	have 	been
	within 	the
	noticed
seven-day 	period 	for
	filing
	a
	statement 	of 	exceptions
	and
	was
therefore 	timely.
3cal.
	Admin.
	Code,
	tit.
	8, 	sec.
	33380 	and
	33390.
4cal.
	Admin. 	Code,
	tit.
	8, 	sec.
	32130
	states 	that:
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.
Seal.
	Admin. 	Code,
	tit.
	8, 	sec.
	33380(a)
	states 	that:
(a) 	A
party
	may
	file
	with 	the
	Board 	an
original
	and 	four 	copies 	of
	a
	statement 	of
exceptions 	to 	the 	proposed 	decision,
	and
supporting 	brief, 	within 	seven 	calendar 	days
after 	receipt 	of 	the 	propose 	decision
....
3

The
	District
	concedes
	that
	under
	the 	Board's
	present
interpretation
	of
	these
	rules
	the
	period 	in
	which
	the
	District
could
	file
	a
	timely 	statement
	of
	exceptions
	ended
	on
January 	12,
	1978,
	but 	argues
	that
	this 	interpretation 	is
incorrect.
	We
	disagree.
	The
	application
	of
	rule
	32130
	and
rule
	33380
	caused
	the 	appeal 	period 	in
	this
	case
	to
	commence
January
	6,
	1978i
	the
	''act
	of 	occurrence"
	to
	which
	rule
	32130
refers 	is 	receipt
	by
	the
	District
	of 	the
	proposed
	decision
	on
January 	5,
	1978.
The
	Board
	has
	previously
	counted
	the 	seven-day 	time
	period
referred
	to 	in
	rule
	33380
	as
	beginning 	the
	day
	after
	the
receipt
	by
	the
	parties
	of 	the
	proposed
	decision.
6
In
	its
	statement 	of
	exceptions, 	the
	District
	also
	contends
that
	the 	seven-day
	filing
	period 	for
	filing
	a
	statement 	of
exceptions 	in
	rule
	33380 	was
	too
	short
	and
	created 	hardships
for 	the
	parties.
	That
	rule
	was
	adopted
	by
	the
	Board
	as
	a
	part
of
	title
	8,
	California
	Administrative
	Code,
	following 	duly
noticed 	public 	hearings
	and
	in 	accordance 	with 	the
Administrative
	Procedure 	Act.
7
It
	was
	determined
	that
	the
specified
	time 	allowed
	for
	parties 	to
	file
	a
	statement 	of
exceptions
	was
	adequate.
	The
	vast 	majority 	of
	parties
	who
	have
filed
	statements 	of 	exceptions 	to
	a 	Board
	agent's
	proposed
6see, 	for 	example,
	Los 	Angeles 	Unified 	School
	District
(11/8/77)
	EERB
	Order 	No. 	Ad-19.
7Gov. 	Code,
	tit.
	2, 	div. 	3,
	part 	1, 	ch. 	4.5, 	sec.
	11371
et 	seq.
4

decision
	have,
	in
	fact,
	complied
	with
	the
	seven-day
	time
requirement.
The
	District
	also
	argues
	that
	the 	Board's
	rules 	regarfing
deadlines
	and
	the
	definitions
	of
	such
	things
	as
	"service,"
"filing,"
	and
	"receipt"
	are
	confusing
	and
	urges
	"a
	more
	relaxed
view
	toward
	deadlines
	and
	the
	like."
	Experience 	with
	the
	rule
fails
	to 	support
	that
	argument.
	The
	overwhelming
	number
	of
filings
	have
	been
	in
	strict
	accordance 	with
	the
	rule's
. 	t
	requ1remen
	s.
8
Finally,
	we
	note
	that
	the
	District
	did 	not
	avail
	itself
	of
the
	opportunity 	to 	request
	an
	extension
	of
	time
	in
	which
	to
file
	a
	statement 	of
	exceptions.
ORDER
The
	decision 	issued
	by
	the 	executive
	assistant
	to 	the
Board,
	PERB
	Decision
	No. 	HO-R-49,
	declaring
	the 	hearing
officer's
	proposed
	decision 	to
	be
	final,
	is
	affirmed.
Jerilou
	Cossack
	Twohey, 	Member,
	dissenting;
I
	disagree 	with 	the
	majority's-conclusion 	that
	the 	executive
assistant
	properly 	rejected
	the
	District's
	exceptions 	to
	the
hearing
	officer's
	proposed
	decision.
g
In 	her 	dissent,
	Member
	Cossack
	Tv10hey
	refers	
to
	t:he	
seven-day 	appeal 	period 	provided
	by
	rule
	33380 	and
	indicated
	that
	the
Board
	"tacitly
	determined"
	that
	seven 	days 	was 	an
	inadequate
period
	when
	it
	modified
	this 	rule 	effective
	March
	20, 	1978.This
	is
	not
	correct.	
A	
majority 	of 	the
	Board 	modified
	rules
33380 	and 	35030
	in 	order 	to 	consolidate
	and
	provide 	uniformitybetween 	the 	appeal 	procedures
	and
	timelines
	from
	hearing
officer 	decisions
	on
	representation
	and
	unfair 	practice 	cases.In 	addition, 	the 	timelines
	were
	originally 	devised 	in 	order 	to
expedite 	the 	establishment 	of 	negotiating 	units 	at 	the
inception 	of 	the 	EERA. 	However, 	rapid 	processing 	of 	casesbecame 	impractical 	when 	the 	Board 	docket 	grew 	longer. 	Therewas 	then 	no 	need 	to 	continue 	the 	shorter 	appeal 	timelines.
5

On
	January
	5, 	1978,
the
	District
	received
	the 	hearing
	officer's
proposed
	decision.
	The
	District's
	exceptions
	were
	actually
	received
by
	the
	Board
	on
	January
	13,
	1978,
	one 	day
	late
	under
	the
	then-
existing 	rules
	governing
	filing
	of 	exceptions.
1	
This
	is
	yet 	another 	case,
	of
	which
	there
	have
	been
	many,
in
	which
	a
	majority 	of 	the
	Board
	has
	mechanically
	applied
	an
unreasonable
	rule
	so
	as 	to
	deny
	a
	party 	appellate
	review.
I
	agree 	with 	the
	District
rs
	counsel
	that
	the
	seven 	days
provided
	in
	the
	rule
	itself
	did not 	afford
	sufficient
	time
	within
which
	to
	review
	the
	facts
	and
	issues 	of 	the 	case,
	confer
	with
	the
school
	district,
	hold
	a
	meeting
	of 	the
	school 	board,
	and
	write
the 	exceptions 	themselves.
	_In
	fact
	qn March
	8,
	1978.the
	BoRrd
considered
	this
	deficiency
	among
	others,
	and
	modified
	the
	rule
so
	that
	the
	parties
	now
	have 	twenty
	days
	within
	which
	to
	file
exceptions.
	Thus,
	contrary
	to 	the
	majority's 	assertion 	in
this
	case, 	the
	Board
	has
	tacitly
	determined
	that
	the
	time
	speci-
fied 	in 	this
	now-repealed
	rule
	was
	not 	adequate.
I 	do
	not
	advocate
	permitting
	parties
	to 	ignore 	the 	time
requirements
	established
	by
	the
	Board's
	rules
	and
	regulations.
However,
	neither
	should 	the 	basic
	purposes
	of 	the
	EERA
	be
	under-
mined 	by
	slavish
	adherence 	to
	rules
	which 	have
	shown
	themselves
to 	be 	unreasonable
	and
	unrealistic.
	Rather, 	the
	long-established
legal 	principle 	of not 	permitting
	minor
	procedural 	defects 	to
preclude 	the 	examination 	of
	an
	actual 	controversy
	by 	an
	appellate
body
	should
	prevail.
2
1Manteca
	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; 	and Lincoln 	Unified 	School
District
	(5/30/78)
	PERB
	Order 	No. 	Ad-35.
2
Pesce 	v. 	Department 	of Alcoholic 	Beverage Control 	(1958)
51 	Cal.2d 	310, 	313; 	See 	also 	Gibson 	v. 	Unemployment 	Insurance
Appeals 	Board 	(1973) 	9 Cal.3d 	494 	and 	Flores 	v. 	Unemployment
Insurance Appeals 	Board 	(1973) 	30 	Cal.App.3d 	681.
6

This
	principle
	is
	especially
	applicable
	to
	controversies
arising
	under
	the
	EERA.
	Unlike
	most
	other 	arenas
	of
	litigation,
the
	parties
	in
	a
	disputed 	case
	under 	the
	EERA
	enjoy
	an
	ongoing
relationship
	which 	does
	not 	terminate 	with 	the
	completion
	of
	the
litigation.
	Continuing
	relationships
	conducive
	to
	successful
	and
harmonious 	problem
	solving--the
	essence
	of
	collective 	negotiations--
demand
	that
	the 	parameters
	of
	the
	relationship
	have 	been
	fairly
defined.
	When 	a
	dispute
	has 	been
	unfairly
	denied
	a
	full
	hearing
by
	the
	Board
	entrusted
	with
	its
	resolution,
	the
	future
	harmonious
relationship
	of 	the
	parties 	is
	jeopardized.
The
	problem
	in
	the
	instant
	case, 	the
	composition
	of 	the
negotiating 	unit, 	is
	one
	at
	the 	very
	heart
	of
	this
	harmonious
relationship.
	It
	is
	the 	cornerstone 	of 	the
	obligation
	to
negotiate
	and
	further
	determines 	the 	parameters
	of
	this 	obliga-
tion.3	
Permitting
	a
	minor
	procedural
	defect
	to
	forestall
	the
3
section
	3540
	of 	the
	Act
	declares
	it
	to
	be
	the 	purpose
	of
this
	Act".
o.to
	promote
	the
	improvement
	of 	personnel
	management
and 	employer-employee
	relations
...
by
	providing
	a
	uniform
	basisfor 	recognizing 	the
	right 	of 	public
	school
	employees
...
to
	select
one 	employee
	organization
	as
	the 	exclusive
	representative 	of
	the
employees
	in
	an
	appropriate
	unit,
....
11
To
	effectuate 	this 	policySections
	3543.S(c)
	and
	3543.6(c)
	of 	the
	Act 	impose
	a
	mutual
	obli-
gation
	on 	an 	employer 	and 	an 	employee
	organization 	respectively
to
	meet 	and
	negotiate 	in
	good
	faith.
	Section 	3540.l(h) 	of 	the
Act
	in 	turn 	defines
	meeting 	and
	negotiating
	as" ...
meeting, 	con-
ferring, 	negotiating,
	and
	discussing
	by
	the 	exclusive 	representative
and
	the 	public 	school 	employer
	in
	a
	good
	faith 	effort
	to 	reachagreement
	on
	matters 	within 	the 	scope
	of 	representation
....
"
Section 	3540.l(e) 	defines 	exclusive 	representative
	as" ...
the
employee
	organization recognized 	or 	certified
	as 	the 	exclusive
negotiating 	representative 	of
...
employees
	in
	an
	appropriate
unit
....
"
	Finally, 	Section 	3543.2 	of 	the 	Act 	defines 	those
matters 	within 	the 	scope 	of 	representation.
7

Board's
	consideration 	of
	the
	District's
	position
	on
	this
	funda-
mental 	disagreement
	raises
	the
	genuine
	possibility
	that 	the
disagreement
	will 	fester
	and
	perhaps
	distort
	and
	poison
	the
entire
	negotiating
	relationship.
	Accordingly,
	I
	dissent.
l"Bj:	
Jerilou
	Cossack
	Twohey,
	Wjmber
8

STATE
UF
CALIFORNIA
~UBLJC
	EMPLOYMENT RELATIONS 	BOARD
-ieadquarters
Office
n3
· 12th Street, Suite 20 l
5acrcmento, California 	95814
916) 322-3088
January 18,
	1978
Mr. 	Mark A. 	Hyjek
Biddle, 	Walters
	& Bukey
1127
11th
	Street,
	Suite
	900
Sacramento,
	CA
	95814
EDMUND
G,
BROWN
JR., Governor
Re: 	Redding
Elementary School
	District,
	Case Nos. 	S-R-437, 	S-UC-5
Dear Mr. 	Hyj
ek:
This
	will
	acknowledge
	receipt
	of 	the exceptions
	filed
	by
	the
Redding
Elementary School
District
	in
	the above-captioned
	case. 	Unfortunately,
your
	exceptions
were
not 	timely
	filed
	according 	to 	Section
	33380
	ofthe
Board's
	rules
	and
	regulations.
Exceptions 	to
	the
	proposed
decision
were due
	to be
	filed
	by
	the
District
on
January
12, 	1978.
	Exceptions
were
not 	received
	in this 	office
until
January 13,
	1978.
As 	a
	result
	of
	this failure
	to 	timely
	file,
	the enclosed exceptionscannot
	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
of
	your
	filing
	to
	the
Board
	itself.
	Should
	youchoose
	to
	do
	so,
	your
	appeal should
	be
	filed
	in 	this office
on
or before
ten calendar
	days 	from
	service of
	this
	communication.
Sincerely,
yq2	
~~L
Stepher~:::;
Executive
Assistantto 	the
	Board