PERB Order No. A028E•Fremont Unified School District/John Swett Unified School District (PERB A028E)
Fremont Unified School District/John Swett Unified School District (PERB A028E)
PERB Order No. A028ECalperb5 apr 1978
Testo completo
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.
2The 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
2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALITORNTA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
IN THE MATTER OF:
FREMONT UNIFIED SCHOOL DISTRICT
Charging Party, Case Nos. SF-CO-19, 20
vs.
FREMONT UNIFIED SCHOOL DISTRICT
TEACHERS ASSOCIATION, CTA/NEA,
Respondent, APPELLANT.
JOHN SWETT EDUCATION ASSOCIATION,
CTA/NEA,
Charging Party, APPELLANT, Case No. SF-CE-53
vs. PERB Order No. Ad-28
JOBN SWETT UNIFIED SCHOOL DISTRICT, Administrative Appeals
Respondent. April £, 1973
.
at NL Ne ee et ee ee a a a Se ee ee ee”
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 Swett
Education Association, CTA/NEA; Keith Breon, Attorney (Breon,
Galgani & Godino) for John Swett Unified School District.
Before Gluck, Thaizrperson; Cossack Twohey and Gonzales, Members.
OPINION
These cases are consolidated for the purposes of this decision
because they ara factually very similar. In each case, the
Executive Assistamt to the Board rejected alleged late-filed
exceptions to the General Counsel's denial of an objection to the
substitution of 2 new hearing officer. The Fremonc 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
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