Anaheim Union High School District (PERB A027E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
ANAHEIM UNION
	HIGH
	SCHOOL
	DISTRICT,
Employer,
and
CALIFORNIA
	SCHOOL EMPLOYEES
	ASSOCIATION,
Chapter
	74,
Employee
	Organization,
and
INTERNATIONAL
	BROTHERHOOD 	OF
	ELECTRICAL
WORKERS,
	Local
	47,
Employee
	Organization,
	APPELLANT.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
_______________________ )
Case 	No. 	LA-R-222
PERB
	Order
	No. 	Ad-27
Administrative
	Appeal
March
	16,
	1978
Appearances:
	Kenton 	Wines,
	Superintendent, 	for
	Anaheim
	Union
	High
School
	District;
	Wally
	Blice, 	Field
	Representative, 	for
	California
School
	Employees
	~ssociation,
	Chapter
	74;
	Hirsch Adell, 	Attorney
(Reich, 	Adell	
&	
Crost), 	for
	International
	Brotherhood
	of
	Electrical
Workers, 	Local
	47.
Before:
	Gluck, 	Chairman; 	Cossack
	Twohey 	and
	Gonzales,
	Members.
OPINION
This
	is
	an
	appeal
	by
	the
	International
	Brotherhood
	of
	Electrical
Workers, 	Local
	47 	(IBEW), 	from
	the 	Executive
	Director's 	dismissal
	of
an
	appeal 	to
	him 	from
	the
	Los
	Angeles 	Regional
	Director's 	administrative
determination
	that
	the
	IBEW
	failed
	to
	meet
	the
	30
	percent
	requisite
showing
	of
	interest 	in
	an
	appropriate 	negotiating 	unit
	and,
	therefore,
pursuant 	to 	California Administrative
	Code,
	Title
	8,
	Section
	33480,
is 	ineligible
	to 	appear
	on
	the
	ballot.
	The
	Executive
	Director's
dismissal
	was 	on
	the 	ground
	that
	the 	appeal 	to
	him was
	not 	timely 	filed.
FACTS
Pursuant 	to
	a 	Board Order
	establishing
	an
	appropriate 	represen-
tation 	unit, 	the
	Los 	Angeles 	Regional 	Director 	served 	appellant
	with
written notice,
	by
	certified
	mail 	dated 	December 	27, 	1977,
	that 	it
was
disqualified
	from 	appearing 	on 	the 	prospective 	representation 	ballot
for 	reason 	of 	failure 	to 	provide 	an 	adequate 	showing 	of 	interest
	as
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ANAHEIM UNION HIGH SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION,
Chapter 74,
Employee Organization,
and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, Local 47,
Employee Organization, APPELLANT.
Case No. LA-R-222
PERB Order No. Ad-27
Administrative Appeal
March 16, 1978
Appearances: Kenton Wines, Superintendent, for Anaheim Union High
School District; Wally Blice, Field Representative, for California
School Employees Association, Chapter 74; Hirsch Adell, Attorney
(Reich, Adell & Crost) , for International Brotherhood of Electrical
Workers, Local 47.
Before: Gluck, Chairman; Cossack Twohey and Gonzales, Members.
OPINION
This is an appeal by the International Brotherhood of Electrical
Workers, Local 47 (IBEW) , from the Executive Director's dismissal of
an appeal to him from the Los Angeles Regional Director's administrative
determination that the IBEW failed to meet the 30 percent requisite
showing of interest in an appropriate negotiating unit and, therefore,
pursuant to California Administrative Code, Title 8, Section 33480,
is ineligible to appear on the ballot. The Executive Director's
dismissal was on the ground that the appeal to him was not timely filed.
FACTS
Pursuant to a Board Order establishing an appropriate represen-
tation unit, the Los Angeles Regional Director served appellant with
written notice, by certified mail dated December 27, 1977, that it was
disqualified from appearing on the prospective representation ballot
for reason of failure to provide an adequate showing of interest as

required
	by 	Board
	rule.
	The
	notice,
	which
	was
	received
	by
appellant
	on
	December
	28, 	1977,
	further
	informed
	appellant
	that
	it
would 	have
	10
	days	
to	
file
	an
	appeal
	with 	the
	Executive
	Director
of
	the
	Board
	in
	Sacramento.
	Board
	rules
	define 	the
	term
	"filing"
as
	personal
	delivery
	or
	actual 	delivery
	by
	certified
mail.
	See
California
	Administrative
	Code,
	Title
	8,
	Section
	33020. 	The
notice
	contained 	the
	following 	statement:
"You may
	request
	a
	review
	of
	this
	decision
	within
ten 	calendar
	days
	of
	receipt
	of
	this
	letter
	by
	filing
	a
request
	addressed 	to 	the
	EERB
	Executive
	Director 	in
Sacramento. 	This
	request
	shall 	state
	fully
	the
	facts
	on
which
	the 	appeal
	is
	based.
	Copies
	of
	any
	appeal
	must
	be
served
	upon
	the
	parties
	to
	this
	action
	with
	a
	copy
	to
	thisoffice."
Appellant's 	request 	for
	review
was
	actually
	received
	by
	the
Executive
	Director
	on
	January
	10, 	1978.
	In
	notifying 	appellant
	of
his
	rejection
	of
	the
	request 	for
	review,
	the 	Executive
	Director
indicated
	that
	he would 	have
	considered 	the 	request 	timely
	had
	i~
been
	received
	on
	January
	9, 	inasmuch
	as
	the 	7th
	of
	January
	was 	a
Saturday.
DISCUSSION
The
	IBEW
	originally 	raised
	no
	objection 	to 	the
	10-day
	period
provided
	by
	the 	Regional
	Director.
	Nor
	did 	the
	IBEW
	raise
	such
	an
issue 	in
	its
	request 	for
	review 	submitted 	to 	the 	Executive
	Director.
Its
	appeal 	to 	the
	Board
	itself
	urges
	that
	because
	of
	postal
	delays,
the 	request 	for 	review 	should,
	nevertheless,
	have 	bee~
	accepted
	by
the 	Executive
	Director.
In 	the
	view
	of 	the
	Board,
	the
	time 	provided
	by
	the 	Regional
Director 	for
	filing
	the 	request 	for 	review
was
	reasonable. 	Further,
her 	notice, 	in writing
	and
	sent
	by
	certified
mail,
	satisfied
	due
process 	requirements 	to
	which
	appellant
	was
	entitled.
	See
Litchfield
	v. 	County
	of
Marin 	130
	Cal.App.2d 	806, 	813
	(1955).
Appellant's 	appeal 	to 	the
	Board
	itself
	was
	postmarked 	January 	6,
1978,
	nine
	days
	after
	the 	Regional
	Director's 	notice 	to 	appellant
of
	its
	10-day period 	to
	file
	a
	request 	for 	review of 	her 	decision.
No
	sufficient
	cause 	has 	been 	furnished 	the 	Board
	itself 	for 	further
-2-
required by Board rule. The notice, which was received by
appellant on December 28, 1977, further informed appellant that it
would have 10 days to file an appeal with the Executive Director
of the Board in Sacramento. 	Board rules define the term "filing"
as personal delivery or actual delivery by certified mail. See
California Administrative Code, Title 8, Section 33020. 	The
notice contained the following statement:
"You may request a review of this decision within
ten calendar days of receipt of this letter by filing a
request addressed to the EERB Executive Director in
Sacramento . 	This request shall state fully the facts on
which the appeal is based. Copies of any appeal must be
served upon the parties to this action with a copy to this
office."
Appellant's request for review was actually received by the
Executive Director on January 10, 1978. In notifying appellant of
his rejection of the request for review, the Executive Director
indicated that he would have considered the request timely had it
been received on January 9, inasmuch as the 7th of January was a
Saturday .
DISCUSSION
The IBEW originally raised no objection to the 10-day period
provided by the Regional Director. Nor did the IBEW raise such an
issue in its request for review submitted to the Executive Director.
Its appeal to the Board itself urges that because of postal delays,
the request for review should, nevertheless, have been accepted by
the Executive Director.
In the view of the Board, the time provided by the Regional
Director for filing the request for review was reasonable. 	Further,
her notice, in writing and sent by certified mail, satisfied due
process requirements to which appellant was entitled. 	See
Litchfield v. County of Marin 130 Cal. App. 2d 806, 813 (1955).
Appellant's appeal to the Board itself was postmarked January 6,
1978, nine days after the Regional Director's notice to appellant
of its 10-day period to file a request for review of her decision.
No sufficient cause has been furnished the Board itself for further
-2-

extending 	the 	filing 	date 	established by 	the 	Regional 	Director,
which was 	itself 	extended 	until 	January 	9, 	1978.
ORDER
The 	decision 	of 	the 	Executive 	Director 	is 	sustained.
The 	election 	in 	question, 	in which 	appellant 	did not 	partici-
pate, 	was 	held 	on February 	22, 	1978. 	However, 	the 	ballots 	were
impounded 	by 	the 	Board pending 	disposition 	of 	this 	appeal. 	No
further 	reason 	to 	delay 	the 	count 	now 	existing, 	the 	Los 	Angeles
Regional 	Director 	is 	hereby 	directed 	to 	proceed with 	the 	ballot
count 	and, 	if 	appropriate, 	the 	certification 	of 	an 	exclusive
representative 	in·accordance with 	California Administrative 	Code,
Title 	8, 	Section 	33610.
By: 	an ~~-(1/ ~- 	7 ✓ (_/RaY¥1ond 	J. 	Gorizale's , 	Member
Jerilou 	Cossack 	Twohey, 	Member 	dissenting:
I 	disagree 	with 	the majority's 	conclusion 	in 	this 	case 	that
IBEW's 	request 	for 	review was 	properly 	rejected 	by 	the 	Executive
Director 	as 	untimely.
It 	is 	a 	well-established 	principle 	of 	law 	that 	an 	appellate
body 	is 	generally 	reluctant 	to 	permit 	minor 	procedural 	defects 	to
preclude 	an 	examination 	of 	an 	actual 	controversy. 	This 	is 	true
in 	the 	California 	courts 	and 	even more 	so 	in 	an 	administrative
agency.
see 	Pesce 	v. 	Department 	of Alcoholic 	Beverage 	Control, 	51
Cal.2d 	310, 	313 	(1958).
see 	Gibson 	v. 	Unern 	lo 	ent 	Insurance A 	eals 	Board, 	9 	Cal.3d
494, 	108 	Cal.Rptr 	1, 	509 	1973 	where 	the 	Supreme 	Court 	concluded
that 	the 	agency 	and 	the 	superior 	court 	had 	erred 	in 	denying 	considera-
tion 	of 	an 	appeal 	filed 	three 	days 	late. 	See 	also 	Flores 	v. 	Unemployment
Appeals 	Board, 	30 	Cal.App.3d 	681, 	106 	Cal.Rptr 	543 	(1973).
-3-
extending the filing date established by the Regional Director,
which was itself extended until January 9, 1978.
ORDER
The decision of the Executive Director is sustained.
The election in question, in which appellant did not partici-
pate, was held on February 22, 1978. However, the ballots were
impounded by the Board pending disposition of this appeal. 	No
further reason to delay the count now existing, the Los Angeles
Regional Director is hereby directed to proceed with the ballot
count and, if appropriate, the certification of an exclusive
representative in accordance with California Administrative Code,
Title 8, Section 33610.
By: Harry Gluck, Chairman 	Raymond J. Gonzales, Member
Jerilou Cossack Twohey, Member dissenting:
I disagree with the majority's conclusion in this case that
IBEW's request for review was properly rejected by the Executive
Director as untimely.
It is a well-established principle of law that an appellate
body is generally reluctant to permit minor procedural defects to
preclude an examination of an actual controversy. 1
This is true
in the California courts and even more so in an administrative
agency . 2
1
See Pesce v. Department of Alcoholic Beverage Control, 51
Cal . 2d 310, 313 (1958) .
2
See Gibson v. Unemployment Insurance Appeals Board, 9 Cal. 3d
494, 108 Cal . Rptr 1, 509 (1973) where the Supreme Court concluded
that the agency and the superior court had erred in denying considera-
tion of an appeal filed three days late. See also Flores v. Unemployment
Appeals Board, 30 Cal . App. 3d 681, 106 Cal . Rptr 543 (1973) .
2
- 3-

In
	the
	instant
	case
	the
	basic 	issue
	is
	the
	right
	of
	an
	employee
organization
	to 	appear
	on
	the
	election
	ballot.
	Section
	3540
	of
	the
EERA
	states 	that
	the
	purpose
	of
	the
	Act
	is,
	among
	other
	things,
	to
provide"
...
a
	uniform
basis 	for
...
	public
	school
	employees
...
to
select
	one 	employee
	organization
	as
	the 	exclusive
	representative
	of
the
	employees
	in
	an
	appropriate
	unit
....
"
	Since
	a
	basic
	purpose
	of
the
	law
	is
	to 	provide
	for
	democratic,
	secret-ballot 	elections
	to
determine
	which,
	if
	any, 	employee
	organization
will
	represent
employees
	as 	an
	exclusive
	representative,
	exclusion 	of
	any
	employee
organization
	from
	the
	ballot--and
	the 	concurrent
	elimination 	of 	that
employee
	organization
	as
	a
	possible
	choice
	of
	the 	employees--is
	a
decision 	of
momentous
	consequence
	to
	all
	concerned.
	Such
	decisions
should
	not
	be
	based
	on
	rigid
	and
	inflexible
	application
	of
	mechanical
rules.
	It
	may
	be
	that
	IBEW
	does
	not 	possess 	the
	requisite
	showing
of 	support
	under
	the 	Board's
	rules
	and
	regulations.
	However,
	the
regional
	director
	announced
	that
	conclusion 	but
	nowhere
	explained
the
	basis 	for
	it.
	The
	denial 	of
	review
	of 	the merits 	of 	the
	con-
troversy
	on 	a
	technicality
	cannot
	serve 	to
	enhance
	the 	Board's
credibility
	among
	any
	of
	those
	affected
	by
	this 	decision--the
employees,
	the
	district,
	IBEW
	or
	CSEA.
IBEW's
	request 	for
	review
was
	filed
	one 	day
	late. 	Parties
should
	not
	lightly
	be
	permitted 	to 	ignore 	the 	Board's 	time
	require-
ments.
	However,
	where
	the
	rights 	at
	issue 	are
	fundamental
	to 	the
very 	essence
	of 	the
	statute,
	all
	parties
	would be
	better
	served
	by
an
	examination 	of 	the 	merits 	of
	the 	dispute
	and
	clear 	articulation
of 	the 	basis 	for
	the 	decision. 	Accordingly,
	I 	would
	reverse 	the
Executive 	Director.
-4-
In the instant case the basic issue is the right of an employee
organization to appear on the election ballot. Section 3540 of the
EERA states that the purpose of the Act is, among other things, to
provide ". ..a uniform basis for. .. public school employees. . . to
select one employee organization as the exclusive representative of
the employees in an appropriate unit. ..." Since a basic purpose of
the law is to provide for democratic, secret-ballot elections to
determine which, if any, employee organization will represent
employees as an exclusive representative, exclusion of any employee
organization from the ballot--and the concurrent elimination of that
employee organization as a possible choice of the employees--is a
decision of momentous consequence to all concerned. Such decisions
should not be based on rigid and inflexible application of mechanical
rules. It may be that IBEW does not possess the requisite showing
of support under the Board's rules and regulations. However, the
regional director announced that conclusion but nowhere explained
the basis for it. The denial of review of the merits of the con-
troversy on a technicality cannot serve to enhance the Board's
credibility among any of those affected by this decision--the
employees, the district, IBEW or CSEA.
IBEW's request for review was filed one day late. Parties
should not lightly be permitted to ignore the Board's time require-
ments . However, where the rights at issue are fundamental to the
very essence of the statute, all parties would be better served by
an examination of the merits of the dispute and clear articulation
of the basis for the decision. Accordingly, I would reverse the
Executive Director.
Jerilau Crack Twokey
Jerilou Cossack Twohey, Member
-4-

Hirsch Adell,
	Esq.
Reich, 	Adell	
&
Crest
1722
North
Broadway
Santa
Ana	
CA
	92706
Dear Mr.
	Adell
:
EDMUND
G.
BROWN JR.,
Governor	
STATE
OF
CALIFORNIA
PUBLIC
	EMPLOYMENT RELATIONS
	BOARD
Headquarters Office
923 12th Street, Suite
201
Sacramento, California 	95814
(916) 322-3088
January
12,
	1978
Re:
	EERB
Decision
No. 	HO-R-41
(LA-R-222)
We
received
your
appeal of the
Los
Angeles
	Regional
Director's
	decision
in this
matter
on
January 10,
	1978.
Pursuant
	to
	Board
	Resolution
No. 	7,
	adopted
November
	2,
	1976,. I
	must
dismiss
	this
	appeal as untimely
filed.
	Filed
	is
defined
	in Section
	33020
of
the
Board's
	regulations.
	As
	you
can
see,
	it
means
	personal
delivery or
actual
delivery
by
certified
mail 	to
	the
Board
	(defined
in
Section
	32020
of the regulations).
Our
	records
	indicate that
	the
	Regional
Director
mailed
	the
	letter
out-
lining
her decision
on December 27, 	1977,
	and
	that
	your
agent signed 	for
	the
certified
	letter
on December 28, 	1977. 	This
means
	that
your
	appeal
	must
have been
	filed
	on
or before January
	7, 	1978.
	Since January 7th
was 	a
Saturday,
	we
would
have accepted 	the appeal
had
	it
been
received
	on
Monday,
January 9th.
	Your
letter
was 	postmarked January
	6; 	however,
	it
was
	not
received in
	Sacramento
until
	January 10th
	(a copy was
	deliver
	to our
L.A.
Regional
	Office
on
January 11th).
An
appeal
	from
	this
	dismissal
must be
	filed
with the
Board
within
	ten
(10)
	calendar
days
	of receipt
	of
	this letter.
	The
appeal should be
	directed
to Steve Barber, 	Executive
Assistant
	to 	the
Board, 	923
	12th
Street,
	Sacramento
CA
95814.
If
you choose to
	fil~
the appeal
shall state fully 	the facts
	on which
it
	is
	based. 	Copies
	of
	any
appeal
must be
	served 	(Section
32140) 	upon 	the
parties
	to
	this action with
a copy
	to 	the
Los Angeles Regional
Office of
the Public
Employment
Relations Board.
Sincerely,
~r/..~
Charles L. 	Cole
Executive Director
RK/tz
cc Kenton Wines
Wally Blice
W. 	E. 	Turner
Frances Kreiling
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 12, 1978
Hirsch Adell, Esq.
Reich, Adell & Crost
1722 North Broadway
Santa Ana CA 92706
Re: EERB Decision No. HO-R-41
(LA-R-222)
Dear Mr. Adell:
We received your appeal of the Los Angeles Regional Director's decision
in this matter on January 10, 1978.
Pursuant to Board Resolution No. 7, adopted November 2, 1976, I must
dismiss this appeal as untimely filed. Filed is defined in Section 33020 of
the Board's regulations. As you can see, it means personal delivery or
actual delivery by certified mail to the Board (defined in Section 32020
of the regulations) .
Our records indicate that the Regional Director mailed the letter out-
lining her decision on December 27, 1977, and that your agent signed for the
certified letter on December 28, 1977. This means that your appeal must
have been filed on or before January 7, 1978. Since January 7th was a
Saturday, we would have accepted the appeal had it been received on Monday,
January 9th. Your letter was postmarked January 6; however, it was not
received in Sacramento until January 10th (a copy was deliver to our L.A.
Regional Office on January 11th) .
An appeal from this dismissal must be filed with the Board within ten
(10) calendar days of receipt of this letter. The appeal should be directed
to Steve Barber, Executive Assistant to the Board, 923 12th Street, Sacramento
CA 95814.
If you choose to file, the appeal shall state fully the facts on which
it is based. Copies of any appeal must be served (Section 32140) upon the
parties to this action with a copy to the Los Angeles Regional Office of
the Public Employment Relations Board.
Sincerely,
Charles . ColeCharles L. Cole
Executive Director
RK/tz
cc Kenton Wines 	W. E. Turner
Wally Blice 	Frances Kreiling