Fremont Unified School District/John Swett Unified School District (PERB A028E)

ST.An:	
OF
	CA.UFORN!A
DECISION
	OF	
TI:m
!'UBI.IC
	E?:!F!.O"i?!ENT
	REl,AT!ONS
	BOARD
IN
THE
MATTER
OF:
FREMONT
	TJNIFIED
	SCHOOL
	DISTRICT
Charging
	Party,
vs.
FREMONT
	UNIFIED
	SCHOO!.
DISTRICT
TEACHERS
	ASSOCIATION, 	CTA/NEA,
Respondent:,
	APPEI..I..Ai.'ff.
JOHN
	SWE'IT
	EDUCAnON
	ASSOCIATION,
CTA/NEA,
Charging
	Party,
	APPEI.LANT,
vs.
' )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
. 	)
JOHN 	Sw'E'IT
	UNIFIED
	SCJ:!OOL
	DISTRICT,
	)
Respondent:. )
')
_________________
).
Case Nos. 	SF-C0-19,
	20
Case 	No. 	SF-CE-53
PERB
	Order
	No. 	Ad-28
Administrative
	Appeals
April
	: ,
	1978.
At:rcearances:
	Arthur
	J.
	Krannawit:t:er
	for
	Fremont:
	Unified
	School
District:;
	Benjamin
	D.
	James,
	Jr.,
	Attorney
	for
	Fremont:
	Unified
School Dist:rict: Teachers
	Association,
	CTA/NE..~,
	and
	for
	John
	Swett:
Education Association,
	CTA/NE.~;
	Keich 	Breon,
	Attorney 	(Breon,
Galgani	
& Godino)
	for
	John 	Swett 	Unified
	School
	Discrict:.
Before 	Gluck, ~haL~erson; 	Cossack 	Twohey 	and 	G<.lnzales,
	Members.
Pl"'IN!.ON
These
	cases 	are 	consolidated 	for
	che 	purposes
	of 	this 	decision
because 	they 	are
	fact::ually 	very 	similar. 	In
	each 	case, 	the
Executive Assistant: 	to 	the 	Board
	rejected 	alleged
	late-filed
exceptions 	to 	che 	General 	Counsel's 	denial 	of
	an
	objection 	to 	the
substitution 	of
	a new hearing 	officsr.
	The 	Fremont 	Unified 	School
District 	Teachers 	Association,
	CTA/NEA. 	("Fre!llont: 	Association"),
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
IN THE MATTER OF:
FREMONT UNIFIED SCHOOL DISTRICT
Charging Party,
VS .
FREMONT UNIFIED SCHOOL DISTRICT
TEACHERS ASSOCIATION, CTA/NEA,
Respondent, APPELLANT.
Case Nos. SF-CO-19, 20
JOHN SWETT EDUCATION ASSOCIATION,
CTA/NEA,
Charging Party, APPELLANT,
VS .
JOHN SWETT UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-53
PERB Order No. Ad- 28
Administrative Appeals
April 5, 1978
Appearances: Arthur J. Krammawitter for Fremont Unified School
District; Benjamin D. James, Jr. , Attorney for Fremont Unified
School District Teachers Association, CTA/NEA, and for John Sweet
Education Association, CTA/NEA; Keith Breon, Actorney (Breon,
Galgani & Godino) for John Sweet Unified School District.
Before Gluck, Chairperson; Cossack Twohey and Gonzales, Members.
OPINION
These cases are consolidated for the purposes of this decision
because they are factually very similar. 	In each case, the
Executive Assistant to the Board rejected alleged late-filed
exceptions to the General Counsel's denial of an objection to the
substitution of a new hearing officer. 	The Fremont Unified School
District Teachers Association, CTA/NEA ("Fremont Association"),

and
	the
	John 	Swett
	Education
	Association
	("John 	Swett
	Association"),
respectively,
	appeal
	the
	rejection
	of
	exceptions.
FACTS
In
	each
	case, 	the 	hearing
	officer
who
	presided
	at
	the 	hearing
of
	the 	matters
	left
	the
	employment
	of
	the
	Board
before
	she 	rendered
a
	proposed
	decision.
	The
	General
	Counsel
	subsequently
notified
	the
parties 	of 	this 	fact,
	proposed 	to
	substitute
	another
	hearing
	officer
to
	write
	the
	proposed
	decision,
	and
	requested
	each
	party 	to 	sign
	a
consent 	to 	the
	substitution
	unless 	the
	party 	objected
	to
	the
substitution.
In
	each
	case, 	the
	respective
	Associations 	did not
	sign
	the
consent
	and
	instead
	filed
	a 	document
	which
	stated, 	respectively:
Charging
	Party,
	JOHN
	SWETT
	EDUCATION
	ASSOCIATION,CALIFORNIA TEACHERS' 	ASSOCIATION
	and
	NATIONAL
EDUCATION
	ASSOCIATIO~
	hereby
	objects
	to 	the
Gener~l
	Counsel's
	substitution
	of 	another hearing
officer 	in 	this
	action.
Respondent,
	FREMONT
	UNIFIED DISTRICT
	TEACHERS'
ASSOCIATION, 	CALIFORNIA TEACHERS' 	ASSOCIATION
and
	NATIONAL EDUCATION
	ASSOCIATION
	hereby
	objects
to
	the
	General
	Counsel's
	substitution
	of 	another
hearing
	officer 	in 	this 	action.
In
	each
	case,
	by 	a
	letter
	dated 	January
	10, 	1978,
	the
	General
Counsel 	denied 	the 	objection 	to 	the
	substitution.
	The
	letter
	from
the
	General 	Counsel
	to 	the
	John 	Swett
	Association also 	advised 	that
the
	John 	Swett
	Association 	could 	appeal 	the 	General 	Counsel's
decision
	by
	filing
	exceptions 	with 	the
	Board
	itself
within 	ten
calendar
	days
	following
	receipt 	of 	his 	decision.
	The
	letter
	from
the 	General 	Counsel 	to 	the 	Fremont
	Association
	was
	also 	intended
to
	state 	that 	exceptions 	could be
	filed within 	ten 	calendar 	days,
but 	because 	of
	a 	typographical 	error, 	the 	time 	within which 	the
exceptions 	were 	required 	to 	be 	filed
	was 	not 	clearly 	stated.
2
and the John Swett Education Association ("John Swett Association") ,
respectively, appeal the rejection of exceptions.
FACTS
In each case, the hearing officer who presided at the hearing
of the matters left the employment of the Board before she rendered
a proposed decision. 	The General Counsel subsequently notified the
parties of this fact, proposed to substitute another hearing officer
to write the proposed decision, and requested each party to sign a
consent to the substitution unless the party objected to the
substitution.
In each case, the respective Associations did not sign the
consent and instead filed a document which stated, respectively:
Charging Party, JOHN SWETT EDUCATION ASSOCIATION,
CALIFORNIA TEACHERS' ASSOCIATION and NATIONAL
EDUCATION ASSOCIATION hereby objects to the
General Counsel's substitution of another hearing
officer in this action.
Respondent, FREMONT UNIFIED DISTRICT TEACHERS'
ASSOCIATION, CALIFORNIA TEACHERS' ASSOCIATION
and NATIONAL EDUCATION ASSOCIATION hereby objects
to the General Counsel's substitution of another
hearing officer in this action.
In each case, by a letter dated January 10, 1978, the General
Counsel denied the objection to the substitution. 	The letter from
the General Counsel to the John Swett Association also advised that
the John Swett Association could appeal the General Counsel's
decision by filing exceptions with the Board itself within ten
calendar days following receipt of his decision. The letter from
the General Counsel to the Fremont Association was also intended
to state that exceptions could be filed within ten calendar days,
but because of a typographical error, the time within which the
exceptions were required to be filed was not clearly stated.
2

The 	General 	Counsel's 	letter was 	received 	in 	the 	office 	of
counsel 	of 	record 	for 	the 	John 	Swett Association 	on 	January 	16, 	1978
and 	the 	John 	Swett Association 	filed 	exceptions 	with 	the 	Board
itself on 	January 	23, 	1978. 	Due 	to 	a 	clerical 	error 	the 	exceptions
were 	rejected by 	the 	Executive 	Assistant 	to 	the 	Board 	as 	untimely
filed 	and 	the Association 	appealed 	the 	rejection 	to 	the 	Board 	itself.
The 	General 	Counsel's 	letter was 	received by 	the 	Fremont
Association 	on 	January 	13, 	1978 	and 	the 	Fremont 	Association 	filed
exc~ptions 	with 	the 	Board 	itself 	on 	January 	24, 	1978. 	The 	Executive
Assistant 	to 	the 	Board 	rejected 	these 	exceptions 	on 	the 	grounds 	they
were not 	timely 	filed.
The 	rejected exceptions 	in 	each 	case 	argued 	that 	a 	proposed
decision 	can not 	properly be 	rendered by 	a 	hearing 	officer who 	has
not 	heard 	the 	evidence 	at 	the 	hearing 	or 	observed 	the 	witnesses, 	and
that 	the 	employment 	of 	a 	hearing 	officer 	to 	conduct 	hearings 	is 	a
useless 	act 	unless 	the 	same hearing 	officer, 	as 	trier 	of 	fact, 	also
issues 	the 	proposed 	decision. 	These 	exceptions 	also 	argued 	that
California Administrative 	Code, 	Title 	8, 	Section 	35018(c) 	does 	not
provide 	a 	basis 	for 	allowing 	substitution 	of hearing 	officers.
The 	section 	provides:
At 	any 	time 	the 	Board 	itself may 	transfer 	a 	case
to 	itself, 	a 	Board member 	or 	another 	agent.
DISCUSSION
It 	is 	found 	that 	the 	exceptions 	to 	the 	General 	Counsel's
decision 	filed 	by 	the 	John 	Swett 	Association were 	timely 	and were
inappropriately 	rejected by 	the 	Executive 	Assistant 	to 	the 	Board.
The 	exceptions 	were 	filed 	seven 	days 	following 	the 	receipt 	of 	the
General 	Counsel's 	decision, 	well 	within 	the 	ten 	days 	allowed 	for
filing 	by 	the 	letter 	of 	January 	10, 	1978.
3
The General Counsel's letter was received in the office of
counsel of record for the John Swett Association on January 16, 1978
and the John Swett Association filed exceptions with the Board
itself on January 23, 1978. Due to a clerical error the exceptions
were rejected by the Executive Assistant to the Board as untimely
filed and the Association appealed the rejection to the Board itself.
The General Counsel's letter was received by the Fremont
Association on January 13, 1978 and the Fremont Association filed
exceptions with the Board itself on January 24, 1978. The Executive
Assistant to the Board rejected these exceptions on the grounds they
were not timely filed.
The rejected exceptions in each case argued that a proposed
decision can not properly be rendered by a hearing officer who has
not heard the evidence at the hearing or observed the witnesses, and
that the employment of a hearing officer to conduct hearings is a
useless act unless the same hearing officer, as trier of fact, also
issues the proposed decision. These exceptions also argued that
California Administrative Code, Title 8, Section 35018(c) does not
provide a basis for allowing substitution of hearing officers.
The section provides :
At any time the Board itself may transfer a case
to itself, a Board member or another agent.
DISCUSSION
It is found that the exceptions to the General Counsel's
decision filed by the John Swett Association were timely and were
inappropriately rejected by the Executive Assistant to the Board.
The exceptions were filed seven days following the receipt of the
General Counsel's decision, well within the ten days allowed for
filing by the letter of January 10, 1978.
3

It
	is
	found
	that
	the
	Fremont
	Association's
	untimely
	filing
	of
the
	exceptions 	to 	the
	General
	Counsel's
	decision
	is
	excused.
Because
	of
	the 	typographical
	error 	in
	the
	letter
	of
	January
	10,
	1978,
the
	Fremont
	Association 	did not
	have
	proper
	notice 	of 	the 	required
filing
	date
	and
	therefore
	is
	not
	accountable
	for
	the
	late 	filing.
While
	California
Administrative
	Code,
	Title
	8,
	Section
	35018(c)
allows
	for
	the
	transfer
	of
	a
	case 	only by
	the
	action 	of 	the
	Board
itself,
	in
	its
	Resolution
	#7
	the
	Board
	itself,
	pursuant
	to 	the
Government 	Code
	Section 	3541.3(k), 	delegated
	to
	the
	General
	Counsel
the
	power
	of
	transfer
	or
	substitution
	of hearing
	officers 	in
	unfair
practice
	cases.
	Government 	Code
	Section
	3541.3(k)
	provides:
The 	Board
	shall
	have
	all
	of
	the 	following
powers 	and
	duties
...
(k)
	To
	delegate
	its
	powers
	to
...
any
	person
appointed
	by
	the
	Board
	for
	the 	performance
of
	its
	functions:
..
and
	Resol~tion
#7
	provides
	in 	pertinent part:
4) 	The 	Board
	delegates
	to
	the
	General 	Counsel
all
	responsibility 	for
	litigation
	and
	unfair
practices,
	including 	informal 	conferences,formal
	hearings, 	dismissal 	of 	charges,
	and
compliance.
The
	Board
	finds 	the 	General 	Counsel was
	within 	his 	authority
in
	denying
	the 	objections 	to 	the
	substitutions.
	Generally, 	hearing
officers
	may
	be
	substituted 	in 	administrative 	proceedings, 	and
	the
hearing
	officer
who
	hears 	the 	evidence need
not
	be
	the
	same
	hearing
officer
who
	renders 	the 	proposed
	decision.
	This
	is 	especially
	so
where, 	as
	here, 	the
	Board
	itself
	renders 	the
	final 	decision
	on
appeal
	on
	the 	basis 	of 	the 	record and without having been
	present
at 	the 	hearing.
	Morgan 	v. 	United 	States
	(1936) 	298 	U.S. 	468;
Cooper v. 	State
	Board 	of Medical 	Examiners 	(1950) 	35
	Cal. 	2d 	242;
4
It is found that the Fremont Association's untimely filing of
the exceptions to the General Counsel's decision is excused.
Because of the typographical error in the letter of January 10, 1978,
the Fremont Association did not have proper notice of the required
filing date and therefore is not accountable for the late filing.
While California Administrative Code, Title 8, Section 35018(c)
allows for the transfer of a case only by the action of the Board
itself, in its Resolution #7 the Board itself, pursuant to the
Government Code Section 3541.3(k) , delegated to the General Counsel
the power of transfer or substitution of hearing officers in unfair
practice cases. 	Government Code Section 3541.3 (k) provides:
The Board shall have all of the following
powers and duties . . .
(k) To delegate its powers to. . . any person
appointed by the Board for the performance
of its functions . . .
and Resolution #7 provides in pertinent part:
4) The Board delegates to the General Counsel
all responsibility for litigation and unfair
practices, including informal conferences,
formal hearings, dismissal of charges, and
compliance.
The Board finds the General Counsel was within his authority
in denying the objections to the substitutions. Generally, hearing
officers may be substituted in administrative proceedings, and the
hearing officer who hears the evidence need not be the same hearing
officer who renders the proposed decision. 	This is especially so
where, as here, the Board itself renders the final decision on
appeal on the basis of the record and without having been present
at the hearing. Morgan v. United States (1936) 298 U.S. 468;
Cooper v. State Board of Medical Examiners (1950) 35 Cal. 2d 242;

Helmick v. 	Industrial 	Accident 	Commission 	(1941) 	46 	Cal. 	App. 	2d
651; 	National 	Automobile 	and Casualty 	Insurance 	Gomoanv v. 	Industrial
Accident 	Commission 	(1949) 	34 	Cal. 	2d 20; 	18 ALR 2d 	606,
"Administrative 	Decision By 	Officer Not 	Present When Evidence Was
Taken"; 	and 	2 Davis, 	Administrative Law Treatise 	(1958 	ed.)
Section 	11.18, 	p. 	111.
This 	decision does 	not 	preclude 	a 	party from 	filing 	exceptions
to 	the 	proposed decision 	pursuant 	to 	California Administrative 	Code,
Title 	8, 	Section 	32300.
ORDER
The 	decisions 	of 	the 	Executive Assistant 	to 	the 	Board,
rejecting 	the 	exceptions 	filed by 	the 	Fremont 	Unified School
District Teachers 	Association, 	C~A/NEA and 	th~ 	John Swett 	Education
Association, 	CTA/NEA 	to 	the 	General 	Counsel's 	denials 	of 	their
objections 	to 	the 	substitution of new hearing 	officers 	in 	the
above-captioned 	cases, 	is 	overruled.
The 	decisions 	of 	the 	General 	Counsel 	to 	deny 	the 	objections
of 	the 	Fremont Unified 	School 	District 	Teachers 	Association,
CTA/NEA and 	the 	John 	Swett 	Education Association, 	CTA/NEA 	to 	the
substitution of new hearing 	officers 	in 	the 	above-captioned 	cases,
is 	sustained.
4 	d	~ 	L,_// 	/ 	bBy: 	aaymond J. 	G6nzales, 	Mem er
'
GJrilou Cossack Twohey, 	Member
5
Helmick v. Industrial Accident Commission (1941) 46 Cal. App. 2d
651; National Automobile and Casualty Insurance Company v. Industrial
Accident Commission (1949) 34 Cal. 2d 20; 18 ALR 2d 606,
"Administrative Decision By Officer Not Present When Evidence Was
Taken"; and 2 Davis, Administrative Law Treatise (1958 ed. )
Section 11. 18, p. Ill.
This decision does not preclude a party from filing exceptions
to the proposed decision pursuant to California Administrative Code,
Title 8, Section 32300.
ORDER
The decisions of the Executive Assistant to the Board,
rejecting the exceptions filed by the Fremont Unified School
District Teachers Association, CTA/NEA and the John Swett Education
Association, CTA/NEA to the General Counsel's denials of their
objections to the substitution of new hearing officers in the
above-captioned cases, is overruled.
The decisions of the General Counsel to deny the objections
of the Fremont Unified School District Teachers Association,
CTA/NEA and the John Sweet Education Association, CTA/NEA to the
substitution of new hearing officers in the above-captioned cases,
is sustained.
~</0~-
By: Raymond J. Gonzales, Member 	Harry Gluck, Chairperson
Jerilou Cossack Twohey, Member
5

ST>-T!
Of
<:AUfORHtA
PUBLIC
	EMPt.0YMENT RRAT10NS BOARD
Hecdqucrters Offic:e
923 12th Street, Suite
201
Sacramento, Califomic 	9581.4
(916) 322--3088
January
27,
	19 78
Charles
o.
	Triebel,
	Jr.
2050 Ordway
Building
2150 Valdez
	Street
Oakland,	
CA.	
94612
EDMUND
G.
SROWN
111..
Go.-nw
Re:
	Fremont
1Jn.i.fied
School
Distr~ct
vs.
	Fremont
Unified
	School
District
Teachers
	Assn.,
	CTA/NEA.
Case
No.
	SF-C0-19,
	20
John Swett
Education Assn.,
	CT.A/NE.A.
vs.
	John Swett
Unified
School
District
Case
No.
	SF-Q-53
Dear
M:r.
	Triebel:
Th.is
will
aclaiowledge
receipt
of
your
exceptions
	in
the
above-captioned.
case.
	Uu.f
ortuna.tel.y, 	your
document was
not
	t::!mely
filed.
According
	to the
Genera.l
Counsel's
	letter
of
Ja11Uary
10, 	1978,
	exceptions
were
due
at
the Public
Employment
Relations
Board
headquarters	
in
Sacramento
•.ri.thin
ten
	(10)	
calendar days
	following
receipt
of the decision.
	Ret:uru
receipt: mail reveals
	that
you
received the
decision
on
January 13, 1978,
mak;ng
exceptions
due
on
or before
January
	2.3, 	19
78.
	Your e."'tceptiou was
not received
by
this office
unt.il
January
	24, 	1978.
As
	a
	result
of
	this failure
	to
	t.imely
file,
	the.
enclosed
exception cannot
be
submit:t.ed
	to
	the
Board
	it.self for consideration. 	Please
be advised that:
wile
there
a.re no
rules
	to
	this effect,
	you
are
welcome
	to appeal
	this
rejection
of
	your
filing
	to 	the
Board itse.l..f. 	Should
you
choose
to
do
	so,
your appeal
sh.ould be
	filed in
this
	office
on
or before ten calendar
days
from
	service
of
	this
	col'!lllllltl.icat:ion.
Addit:ioually,
	it is
incumbent: upon any
party submitting exceptions to 	the
Board
to include
a
	proof of service
by mail	
in
the
document.
	Since 7our
exception contained
no
	proof of service,
	this is
	a reminder
	that
	one must
be included
in
exceptions
	if
	they are to be considered by
the
Board.
Sincerely,
~\~c"V~
STEl'm:N BAREER
Executive Assistant to 	the
Board
Encl.osure
STATE OF CALIFORNIA EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Headquarters Office
923 12th Street, Suite 201
Sacramento, California 95814
(916) 322-3088
January 27, 1978
Charles 0. Triebel, Jr.
2050 Ordway Building
2150 Valdez Street
Oakland, CA 94612
Re: 	Fremont Unified School District vs. Fremont Unified School District
Teachers Assn. , CTA/NEA
Case No. SF-CO-19, 20
John Sweet Education Assa., CTA/NEA vs. John Sweet Unified School District
Case No. SF-CE-53
Dear Mr. Triebel:
This will acknowledge receipt of your exceptions in the above- captioned
case. Unfortunately, your document was not timely filed.
According to the General Counsel's letter of January 10, 1978, exceptions
were due at the Public Employment Relations Board headquarters in Sacramento
within ten (10) calendar days following receipt of the decision. Return
receipt mail reveals that you received the decision on January 13, 1978,Your exception was
making exceptions due on or before January 23, 1978.
not received by this office until January 24, 1978.
As a result of this failure to timely file, the enclosed exception 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 of your filing to the Board itself. Should you choose to do so,
your appeal should be filed in this office on or before ten calendar days
from service of this communication.
Additionally, it is incumbent upon any party submitting exceptions to the
Board to include a proof of service by mail in the document. Since your
exception contained no proof of service, this is a reminder that one must
be included in exceptions if they are to be considered by the Board.
Sincerely,
~~
\
STEPHEN BARBER
Executive Assistant to the Board
Enclosure