Riverside Unified School District (PERB 0632E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TONY 	PETRICH,
Charging 	Party,
v.
RIVERSIDE 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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Case 	No. 	LA-CE-2399
PERB 	Decision 	No. 	632
August 	26, 	1987
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Appearance; 	Tony Petrich, 	on his own behalf.
Before Hesse, 	Chairperson; 	Porter and Shank, 	Members.
DECISION
HESSE, 	Chairperson: 	Tony Petrich 	appeals 	the 	attached
ruling by an 	administrative 	law 	judge 	(ALJ) 	on 	the 	motion 	of
the 	Riverside 	Unified 	School 	District 	(District) 	to dismiss 	the
allegations 	that 	the 	District 	violated 	the 	Educational
Employment Relations Act 	(Gov. 	Code sec. 	3540, 	et seq.) by
refusing 	to hold 	certain 	grievance meetings, 	by docking
Petrich's 	pay without 	notice, 	and by 	changing 	Petrich's 	work
schedule 	without 	negotiating 	with 	the 	exclusive 	representative.
We have 	reviewed 	the 	entire 	record 	in 	this 	case, 	and 	the
record 	in 	related 	cases 	as 	urged by 	Petrich, 	and we 	find 	the
decision 	of 	the 	ALJ 	to be 	correct 	in 	all 	respects.1 We
1Member 	Porter 	would 	also 	affirm 	the 	dismissal 	on 	the
basis 	that 	an 	individual 	employee 	lacks 	standing 	to assert 	a
unilateral 	change 	in policy based 	on 	the 	collective 	bargaining
agreement. 	(Riverside USD 	(1986) 	PERB Decision No. 	571, 	dis.
opn.; 	Riverside USD 	(1986) 	PERB Decision No. 	562a, 	dis. 	opn.)
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therefore 	adopt his 	decision 	as 	the 	decision 	of 	the 	Board
itself.2
ORDER
The 	unfair practice charges 	in 	Case 	No. 	LA-CE-2399 	are
hereby 	DISMISSED.
Members 	Porter 	and 	Shank 	joined 	in 	this 	Decision.
2we
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2we 	find 	no evidence 	in 	the 	record 	of 	any bias 	or
prejudice 	by the ALJ, 	and 	thus we 	reject 	any notion 	that his
decision 	is 	flawed due 	to bias.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TONY 	PETRICH,
Charging 	Party,
v.
RIVERSIDE 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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Unfair 	Practice
Case No. 	LA-CE-2399
PROPOSED DECISION
ON 	RESPONDENT'S
MOTION TO DISMISS
(4/28/87)
Appearances: 	Tony Petrich, 	on his own behalf; 	Best, 	Best &
Kreiger, 	by Charles D. 	Field, 	for Riverside Unified School
District.
Before: 	Martin Fassler, 	Administrative Law Judge.
INTRODUCTION AND 	PROCEDURAL 	HISTORY
This 	case 	concerns 	four 	allegations 	by an employee of 	the
Riverside Unified 	School 	District 	(District) 	that 	the 	District
unilaterally changed 	its 	past 	practice 	in 	four 	incidents 	in
which 	the 	charging 	party/employee was 	involved. 	Two 	of 	these
had 	to 	do with 	the 	handling 	of 	grievances 	which 	the 	employee,
Tony Petrich, 	filed; 	a 	third had to do with the District's
withholding 	of 	a 	certain portion of 	Petrich's 	monthly pay,
because 	of 	an 	absence 	from work; 	the 	fourth had 	to with 	a
change 	of 	Petrich's 	working 	hours.
With 	respect 	to 	the first 	three of 	these, 	the charging
party 	alleges 	that 	the District's 	actions 	constituted
violations 	of 	provisions 	of 	the 	collective 	bargaining 	agreement
between 	the 	District 	and 	California 	School 	Employees
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

Association 	(CSEA), 	the union which represents 	the District's
classified 	employees, 	including 	Petrich. 	The District 	contends
that 	its 	actions 	did not 	constitute 	either 	violations 	of 	the
collective 	bargaining 	agreement 	or 	changes 	in 	its 	past
practices. 	Further, 	the District 	argues 	that 	the charging
party 	failed 	to 	prove 	in 	each 	instance 	that 	the 	District's
action was 	evidence 	of 	a 	new policy having 	a 	generalized 	effect
or 	continuing 	impact 	upon 	the 	bargaining 	unit. 1
The 	initial 	charge 	in 	this 	case was 	filed 	by Tony Petrich
on May 22, 	1985, 	(as unfair practice charge LA-CE-2188) 	and was
amended 	several 	times. 	The charge 	included numerous
allegations 	of unlawful 	actions 	by the District 	in 	a 	series 	of
separate 	incidents. 	A complaint 	based on 	some 	of 	these
allegations was 	issued 	in August 	1985. 	At 	the 	same time, 	the
specific 	allegations 	of 	this 	case were initially dismissed
1Government 	Code 	section 	3541.5 	defines 	PERB's 	authority
to 	issue unfair 	practice complaints, 	and describes 	certain
limits 	on that 	authority. 	Paragraph 	(b) 	of 	that 	section
provides:
The 	board 	shall 	not 	have 	authority to
enforce 	agreements 	between the parties, 	and
shall 	not 	issue 	a 	complaint 	on 	any charge
based 	on 	alleged 	violations 	of 	such 	an
agreement 	that 	would 	not 	also 	constitute 	an
unfair 	practice under 	this 	chapter.
In Grant 	Joint Union High 	School 	District 	(1982) 	PERB Decision
No. 	196, 	the Board held 	it would not 	find 	an unlawful
unilateral 	change 	of working 	conditions 	by 	an employer 	if 	the
evidence 	showed 	a 	deviation 	from contractual 	requirements 	but
there was 	no 	evidence 	that 	the deviation 	represented 	a 	new
policy 	that 	would 	have 	a 	generalized 	effect 	or 	continuing
impact 	on employees 	in the 	bargaining 	unit.
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by 	PERB's 	regional 	attorney.
The 	charging 	party 	filed 	exceptions 	to 	these 	dismissals
with the Board 	itself. 	On May 	16, 	1986, 	in PERB Decision
No. 	562a, 	the Board ordered 	issuance of 	a 	complaint based on
the 	four 	specific 	allegations 	of 	this 	case. 	The 	general
counsel 	thereafter 	issued 	a 	complaint, 	which was 	amended 	in
minor ways 	on June 3, 	1986. 	The 	substantive 	allegations 	of 	the
complaint 	were 	that 	the 	District 	had 	unlawfully made 	unilateral
changes 	in 	its 	past practices 	in the 	following ways: 	(1) 	By
refusing 	to 	hold 	a 	Level 	2 	grievance 	conference with 	respect 	to
a 	grievance 	that 	Petrich had 	filed on February 7, 	1985; 	(2) 	By
refusing 	to 	hold 	a 	Level 	1 	grievance 	conference with 	respect 	to
a grievance Petrich had filed on March 8, 	1985; 	(3) 	By
withholding 	(or 	"docking") 	a 	certain portion of 	Petrich's 	pay
on April 	30, 	1985, 	because of 	Petrich's 	absence from work,
without 	conferring with Petrich before doing 	so; 	and 	(4) 	By
altering 	Petrich's 	working 	hours 	in 	June 	1985 	without 	first
negotiating 	with CSEA 	about 	the 	change.
A hearing 	on 	the 	allegations 	was 	held 	before 	the
undersigned on October 	22, 	1986. 	At 	the end of 	the
presentation of 	evidence 	by the 	charging 	party, 	respondent
moved 	for 	dismissal 	of 	the 	complaint 	on 	the 	grounds 	that 	the
charging 	party had 	failed 	to 	present 	evidence 	sufficient 	to
establish 	a 	prima 	facie 	case with 	respect 	to 	any of 	the 	four
allegations 	of 	the 	complaint. 	Both parties 	indicated 	their
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desire 	to 	brief 	the matter 	prior 	to 	a 	ruling. 	Each party-
submitted 	a 	brief 	on the motion 	in mid-January.
On February 27, 	1987, 	the undersigned, 	by letter, 	advised
the 	parties 	that 	the 	hearing would 	be 	reopened 	for 	the 	purpose
of 	taking 	additional 	evidence 	on 	the 	allegation 	concerning 	the
District's 	practice with 	respect 	to 	providing 	notice 	to
employees 	prior 	to 	the docking 	of 	pay 	for unauthorized
absence. 	The 	parties were 	advised 	that 	the hearing was 	to
resume April 	10, 	1987, 	at the PERB office in Los Angeles.
On April 	10, 	counsel 	for 	the 	respondent 	and 	the undersigned
were 	present 	at 	the 	PERB 	office 	at 	the 	time designated 	for 	the
resumption 	of 	the 	hearing, 	but 	charging 	party did 	not 	appear,
nor 	did 	any 	representative 	on his 	behalf. 	Nor 	did 	charging
party provide 	to 	PERB 	on April 	10 	or 	since 	then 	any explanation
for 	his 	absence. 	Because of 	the 	absence of 	the charging 	party
on April 	10, 	no 	further evidence was 	taken. 	On April 	16, 	an
Order was 	issued 	closing 	the 	hearing.
FINDINGS 	OF 	FACT
Tony Petrich was 	a 	gardener-custodian 	employed 	by 	the
District 	for 	several years 	prior 	to 	the 	events 	at 	issue 	in this
case, 	all 	of which took place during 	1985. 	Prior 	to
February 25, 	1985, 	Petrich worked 	at Woodcrest Elementary
School; 	after that date, 	he worked at North High School.
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A. 	The Level 2 	Conference: 	Grievance of February 7, 	1985.
The 	collective 	bargaining 	agreement 	in effect 	during 	1985
between 	the District 	and Riverside Chapter 	#506 	of 	CSEA
included 	a 	four-step grievance procedure. 	The contract
required that 	at Level 	1, 	the employee 	(or CSEA on the
employee's behalf) 	submit 	the grievance 	in writing 	to the
employee's 	immediate 	supervisor. 	The 	supervisor was 	to 	then
meet with the employee 	and/or 	a CSEA representative 	"in 	an
attempt 	to 	resolve 	the matter." 	The 	immediate 	supervisor was
then to provide a written response to the grievance.
If 	the grievance was 	not 	settled to 	the satisfaction of
. CSEA at Level 	1, 	the contract provided for a notice of 	appeal
to 	be 	served by CSEA within ten days 	after disposition of 	the
grievance at Level 	1, 	thus bringing the grievance to Level 	2.
The grievance would 	then be discussed 	at 	a meeting which
included the employee affected, 	a 	representative of CSEA and
the District 	superintendent, 	or 	a person designated by the
superintendent 	to be present 	at 	the conference.
The contract did not 	allow an 	individual 	employee 	to 	take 	a
grievance to Level 	2; 	this 	right was 	reserved for CSEA. 	Also,
while 	the 	contract 	specifically provided 	for 	the 	affected
employee to be present at the Level 2 meeting, 	it did not
indicate which party - CSEA or 	the District - had 	the
responsibility for 	arranging 	for 	the employee 	to 	be present.
CSEA 	senior 	field 	representative Alan Aldrich 	testified
that 	as 	a general 	rule both the District 	and CSEA notified 	an
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individual grievant of 	the place 	and time that 	a Level 	2
meeting was to take place. 	(Hearing Transcript, 	page 163).2
On February 7, 	1985, 	Petrich filed a grievance about a
letter 	to 	Petrich from Woodcrest Elementary School 	principal
Dr. M.A. 	Sund. 	The letter itself is not in evidence.
Petrich's 	grievance was 	the following:
Dr. 	Sund's derogatory communication,
earmarked 	for Grievant's 	Personnel 	file,
alleging Grievant was 	10 minutes 	late to
work on January 7, 	1985 	and 	insubordinate
over 	a pile of 	tree leaves 	is 	incorrectly
dated 	1984. 	Said derogatory communication,
now the subject of 	an Unfair Practice
Charge, 	should be dated "1985." 	Said
material 	should have 	been placed 	in
Grievant's Personnel 	file 	6 days 	after
notification, 	not 	10 days as 	indicated on
said material.
As 	remedies, 	Petrich asked that the Sund 	letter be 	removed
from his personnel 	file, 	and that the District provide him with
four sets of Level 2 grievance forms.
On February 15, 	Sund, 	as Petrich's immediate supervisor at
the Woodcrest School, 	denied the grievance. 	On the grievance
form, 	she noted that 	she had already corrected the date. 	She
noted that 	she had 	also 	given Petrich four copies 	of 	the
Level 	2 	grievance forms. 	The 	remainder of 	the 	remedy sought by
Petrich - 	removal of 	the critical 	letter 	from his 	file - was
denied.
2Hereafter, 	references to the hearing transcript will be
in the 	form "TR: 	," with the page number 	inserted.
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On February 22, 	Carlos Corona, 	the grievance chairperson of
the CSEA chapter, 	filed 	a Level 	2 	grievance about 	the matter.
Petrich 	alleges 	that 	the District 	did 	not 	hold 	a 	Level 	2
conference with 	respect 	to 	this 	grievance, 	and 	that 	this
alleged failure 	constitutes 	a 	unilateral 	change 	of 	the
District's 	practice.
The 	evidence 	establishes 	that 	the conference was 	held. 	The
District's 	assistant 	superintendent 	for 	personnel, 	Frank
Tucker, 	testified 	that 	he held 	the Level 	2 	conference with
Corona, 	CSEA field 	representative Alan Aldrich, 	and principal
Sund. 	CSEA chapter 	president 	Gary Prince 	may have 	been 	there
as well, 	Tucker testified. 	(TR: 	43-44). 	According to Tucker,
the 	Level 	2 	hearing 	took place 	one 	afternoon 	at 	3:00 	p.m.,
immediately preceding 	a 	settlement 	conference 	in 	a 	PERB 	case
that 	also 	involved Petrich, 	at 	3:30 	p.m, 	at the 	same place.
Other 	evidence 	establishes 	that 	the meetings 	took place
March 7, 	1985, 	at District headquarters.
Petrich 	called 	as 	witnesses 	neither 	Corona 	nor 	Sund.
Aldrich 	testified 	that 	he did 	not 	attend 	a 	Level 	2 	grievance
meeting 	that 	day, 	although he did 	attend 	the 	later 	PERB
settlement 	conference. 	He 	testified 	he 	did not 	know whether 	a
Level 	2 	conference 	had 	been held 	that 	day with 	respect 	to
Petrich's 	grievance, 	although he knew that 	a 	number 	of Level 	2
grievance 	conferences 	had 	been 	held 	during 	early 	1985 	in
connection with 	grievances 	filed 	by 	Petrich.
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Prince 	testified 	that 	he 	attended 	the 	3:30 	PERB 	settlement
conference, 	but 	did 	not 	attend 	a 	grievance 	conference 	that
day. 	He 	testified 	that 	he 	arrived 	at 	the District 	headquarters
before 	3:30, 	and was 	aware 	that 	some meeting 	concerning 	CSEA
was 	taking 	place, 	but 	he did not 	know whether 	it was 	the
Level 	2 	conference for 	the grievance at 	issue here 	(TR: 	70-72).
Despite 	the 	apparent 	conflict 	between Aldrich's 	testimony
and 	Tucker's 	testimony concerning Aldrich's 	presence 	at 	the
Level 	2 	grievance meeting, 	I 	credit Tucker's 	testimony that 	a
Level 	2 	meeting 	took place 	in connection with 	the 	February 	7
grievance 	at 	3:00 	p.m., 	on March 	7. 	I 	do 	so 	primarily because
of 	Tucker's 	demeanor. 	He delivered 	his 	testimony with 	great
certainty and 	confidence. 	I 	note 	also 	that 	in charging 	party's
brief 	opposing 	the motion 	to dismiss, 	Petrich 	acknowledges 	that
the March 	7 meeting 	took place, 	and 	argues 	only that 	the
District 	unilaterally changed 	its 	practice 	of 	informing 	the
individual 	grievant 	of 	the 	time 	and 	place 	of 	the 	grievance
meeting, 	and 	arranging 	for 	the 	individual 	employee 	to 	be
present 	for 	the meeting. 	In 	any event, 	Tucker was 	quite
certain 	in his 	recollection 	that 	a Level 	II meeting was 	held 	in
connection with the February 7 	grievance, 	and 	that 	it was 	held
at 	3:00 	p.m. 	immediately preceding 	a 	PERB 	settlement 	conference
in 	another 	matter 	involving 	Petrich, 	CSEA 	and 	the Distict.
I 	also 	credit Aldrich's 	testimony 	that 	he did 	not 	attend 	a
Level 	II 	grievance conference 	that day, 	while he did 	attend, 	at
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3:30, 	a PERB settlement conference. 	It appears, 	then, 	that
Tucker 	accurately 	recalled 	seeing Aldrich 	that 	afternoon, 	but
mistakenly 	recalled 	seeing 	him 	at 	the 	3:00 	p.m. 	meeting 	(the
grievance meeting) 	when 	in 	fact 	he 	saw Aldrich 	at 	the 	3:30
meeting 	(the PERB meeting).
Aldrich 	testified 	that 	he 	knew 	of 	no 	evidence 	that 	after
the 	incident 	in 	question 	the 	District 	had 	failed 	or 	refused 	to
hold Level 	2 	meetings 	in 	connection with other 	grievances 	(TR:
164) .
B. 	The Level 	I Conference: 	Grievance of March 8,1985.
On March 4, 	1985, 	Tucker 	sent Petrich a memorandum
describing 	events 	which 	had 	taken 	place 	early 	that 	afternoon.
According 	to 	Tucker's memorandum, 	he 	returned 	from 	lunch 	that
day 	shortly before 	1:00 	p.m. 	His 	secretary had 	not 	yet
returned 	from 	lunch. 	Tucker 	found 	on his 	desk 	a 	letter 	from
Petrich, 	responding 	to 	an earlier memorandum from Tucker.
A few minutes 	later, 	Petrich 	arrived 	at Tucker's 	office.
Tucker 	told 	Petrich 	that 	Petrich was 	never 	again 	to 	enter
Tucker's 	office 	unless 	Tucker 	himself was 	present 	in 	the
office. 	According 	to Tucker's memorandum, 	Petrich 	acknowledged
that he understood 	this 	instruction. 	Later 	that 	day, 	Tucker
sent 	Petrich 	a 	memorandum 	repeating 	the 	same 	instruction.
Petrich 	filed 	a 	grievance 	alleging 	that 	this 	memorandum was
in violation of 	a 	portion of 	section 	18.1 	of 	the 	collective
bargaining 	agreement, 	specifically 	a 	portion which 	begins with
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1 .
the phrase, 	"Nothing shall prohibit. 	. 	. 	." 	No sentence of
section 	18.1 	begins with those exact words. 	There 	is 	a
sentence of 	that 	section which begins with the words, 	"Nothing
contained 	in 	this 	Article 	shall 	be 	construed 	to 	prevent 	any-
individual 	employee 	from discussing 	a 	problem with 	an 	agent 	of
the 	District 	and 	having 	it 	resolved without 	filing 	a 	grievance
as 	provided herein." 	Petrich's grievance 	asked, 	as 	a 	remedy,
that 	the March 	4 	memorandum by Tucker 	be 	removed 	from his 	file,
Petrich gave 	his 	grievance 	form 	to 	North High 	School 	plant
supervisor 	Phillip Hodnett, 	his 	immediate 	supervisor. 	Hodnett
apparently consulted with 	the 	school 	principal, 	Douglas 	Wolf,
about how to 	respond to 	the grievance. 	Wolf, 	in turn,
consulted with Tucker 	about 	how to 	handle 	the 	grievance.
Tucker 	told Wolf 	to 	simply 	relay the 	grievance 	to 	Tucker, 	who
would handle 	it 	as 	a Level 	2 	grievance. 	He also 	told Wolf 	to
alter 	the 	initial 	form submitted 	by Petrich, 	so 	that 	it would
be marked 	"Grievance Form - 	Level 	II," 	rather 	than 	"Grievance
Form - 	Level 	I." 	Wolf 	followed Tucker's 	instructions.	f.. .. . .. . .
On March 	12, 	Tucker wrote to Petrich:
I 	have 	scheduled 	an 	appointment 	to meet with
you on Thursday, 	March 21 	at 3 	p.m., 	in my
office 	to 	hear 	your 	grievance which was
filed on March 	8, 	1985 with Principal Doug
Wolf.
The 	only 	other 	evidence 	presented 	by Petrich 	in 	connection
with 	this 	allegation was 	Hodnett's 	statement 	that 	although 	he
was 	Petrich's 	immediate 	supervisor 	at 	the 	time 	the 	grievance
10

• • •
was 	filed, 	he declined to hold 	a Level 	1 	conference 	about 	the
grievance because there was 	nothing 	that he, 	Hodnett, 	could do
to bring 	about 	a 	remedy of 	the 	kind Petrich 	sought: 	removal 	of
the March 4 	memorandum written by Tucker.
Aldrich 	testified 	that 	on 	occasion 	the 	District 	and 	CSEA
agreed 	in writing 	to waive 	a Level 	1 	or Level 	2 meeting 	in
connection with a specific grievance, 	or to modify, 	with
respect 	to 	a particular 	grievance, 	a 	specific 	time 	requirement
of the contractual grievance procedure. 	(TR: 	159-160).
Aldrich 	testified 	he 	knew of 	no 	agreement 	between 	the 	District
and CSEA to waive the Level 	1 meeting with 	respect 	to 	Petrich's
March 8 	grievance.
C. 	The Docking 	of 	Pay 	for Absence
Article XIX of 	the 	collective 	bargaining 	agreement 	entitled
"Disciplinary Action 	and 	Dismissal 	Procedures," 	includes
several 	provisions 	relevant 	to 	this 	allegation of 	unlawful
action. 	The pertinent 	portions 	of Article 	19 	include 	the
following:
19.0 	. . . 	The 	District 	may 	suspend 	with
pay, 	suspend without pay, 	reduce
employee's 	hours, 	dock pay 	for 	absence
without 	authority, 	or discipline
employees 	in other 	appropriate manners
to 	correct 	or 	remediate 	an employee's
unsatisfactory 	performance 	or 	behavior.
19.1 	Right 	to 	Request 	Hearing: 	A permanent
employee has 	the 	right 	to 	request 	an
informal 	hearing 	with 	the 	immediate
supervisor 	prior 	to 	disciplinary 	action
and/or dismissal. 	If 	requested, 	such a
hearing will 	be 	held.
11

19.2 	Right 	to 	Suspend: 	The District
retains 	the 	right 	to 	suspend a 	permanent
employee, with or without pay, 	without
warning when the health 	and/or welfare of
students 	or other employees 	is 	endangered by
the continued presence of 	the employee,
and/or where the employee's presence 	is 	a
danger 	to 	the property of 	the District 	or
others, 	and/or in cases of aggravated
insubordination. . . .
19.3 	Causes: 	Causes 	for disciplinary
action shall 	include, 	but not be 	limited to
the following:
19.3.7 	Absence without 	leave which may
include any, 	any combination of, 	or all of
the following: 	frequent tardiness 	and/or
other 	failure(s) 	to 	report to the assigned
place of work at 	the 	assigned 	time;
inexcusable 	and unauthorized 	absence 	from
the District; 	. 	. 	.
19.4 	Notification: 	Employees 	shall 	receive
written notification of 	District 	intention
to 	suspend without pay or dismiss 	prior 	to
such District 	action in all cases other than
those situations 	set 	forth 	in section 19.2,
above. 	. . .
Other provisions 	of 	the 	article 	(sections 	19.5 	and 	19.6)
describe 	the hearing 	procedure 	for 	employees 	challenging
disciplinary 	actions 	imposed 	on 	them.
Do these contract provisions, 	taken together, 	establish a
practice by which the District 	is 	obligated to 	provide 	an
employee with notice prior 	to 	the docking 	of 	pay for
unauthorized 	absence?
To 	answer this question, 	the first consideration is whether
the docking 	of 	pay for 	unauthorized 	absence 	is 	to 	be 	considered
disciplinary action. 	The District contends 	it 	is not, 	but 	the
more 	logical 	inference 	is 	that 	the parties 	to 	the contract
12

intended 	it 	to 	be viewed 	as 	a 	form of 	disciplinary 	action.
Section 	19.0 	lists 	various 	forms 	of 	discipline. 	It 	indicates
the 	District 	may 	" . . . 	dock 	pay 	for 	absence 	without
authority, 	or discipline employees 	in other 	appropriate
manners. 	. . . " 	Further, 	section 	19.3 	provides:
Causes 	for 	disciplinary 	action 	shall
include, 	but not 	be 	limited 	to 	the
following: 	. 	. 	.
19.3.7 Absence without 	leave. 	. . . "
It may be 	inferred, 	then, 	from a 	reading of 	these sections,
that 	the 	parties 	understood 	that 	absence without 	leave would 	be
cause 	for discipline under 	the 	contract, 	and 	that 	the docking
of 	pay would 	be 	one 	form of 	discipline which might 	be 	imposed
for 	absence without 	leave.
The next 	question 	is: 	did 	the 	parties 	intend 	to 	impose upon
the District 	an obligation 	to 	give 	an employee 	facing 	such
discipline 	prior 	notice 	of 	the 	District's 	intention 	to 	impose
that 	discipline?
. . ..
Section 	19.4 	of 	the contract 	provides 	that 	prior written
notification by 	the 	District 	of 	intention 	to 	impose 	discipline
on 	an employee must 	be 	given with 	respect 	to 	intention 	to
suspend without 	pay or 	to 	dismiss. 3 No 	other 	form of
3 In 	section 	19.2, 	the 	contract 	provides 	for 	imposition of
discipline without 	prior warning 	(notice) 	when 	the 	health
and/or welfare 	of 	students 	or 	other 	employees 	is 	endangered 	by
the continued presence 	of 	the employee, 	and/or where 	the
employee's 	presence 	is 	a danger 	to 	the property of 	the district
or others, 	and/or 	in cases 	of 	aggravated 	insubordination.
13

discipline 	is 	specifically mentioned 	in this 	section. 	It may
be 	inferred 	from 	the 	absence 	of 	any 	such 	reference 	that 	the
contract 	does 	not 	require 	prior written 	notification with
respect 	to 	the District's 	intent 	to 	impose other 	forms 	of
discipline, 	including the docking 	of 	pay.
However, 	section 19.1 	appears 	to provide 	an employee
covered 	by 	the 	contract 	a 	right 	to 	request 	an 	informal 	hearing
with 	the 	immediate 	supervisor 	prior 	to 	imposition 	of 	any
disciplinary 	action. 	An 	inference may be 	drawn 	that 	this
applies 	to 	all 	forms 	of 	discipline because of 	the 	absence of
any 	language which would 	limit 	the 	right 	to 	a 	hearing 	to 	only
certain 	forms 	of 	disciplinary 	action.
If 	the contract 	entitles 	an employee 	to 	an 	informal 	hearing
before 	imposition of discipline, 	it must 	be 	inferred 	the
employee 	is 	entitled 	to 	prior 	notice. 	Without 	prior 	notice,
the 	entitlement 	to 	a 	prior 	hearing would 	be meaningless.
Taking 	together 	sections 	19.1 	and 	19.4, 	it 	is 	inferred 	that
the 	parties 	to 	the 	contract 	intended 	that 	an 	employee 	facing
the 	imposition 	of 	discipline 	other 	than 	suspension without 	pay
or 	dismissal 	is 	entitled 	to 	prior 	notification 	of 	the
District's 	intention of 	imposing 	discipline 	upon 	him or 	her,
but 	is 	not 	entitled 	to 	prior written notification. 	Presumably,
the 	employee 	is 	entitled 	to 	prior 	oral 	notification.
S . . .
This 	requirement 	is 	not 	explicit 	in the contract, 	but 	it 	is
the most 	logical 	inference 	to 	be 	drawn 	from a 	reading 	of 	the
contract.
14
,

Alan Aldrich, 	CSEA senior 	field 	representative, 	who was
negotiator 	for CSEA during 	the 	1982 	negotiations which 	led to
the collective bargaining 	agreement, 	testified 	about 	the
negotiations 	about Article 	19, 	but his 	testimony did not cast
any additional 	light on the 	intent 	of 	the parties 	on this
point. 	Aldrich 	recalled 	that 	section 	19.1 was 	carried over
intact 	from the predecessor 	agreement 	between CSEA and 	the
District. 	He 	recalled no discussion of 	the 	section during 	the
1982 negotiations.
Aldrich also testified that, 	as 	a general 	rule, 	disputes
about 	employee discipline under 	the contract 	are handled by
CSEA and 	the District 	through the process 	described by 	sections
19.5 	and 	19.6, 	but he could recall no 	instance 	in which he
participated 	in 	the 	informal 	supervisor 	hearing 	described 	by
section 19.1. 	(TR: 	109, 	111)
The 	charging 	party did 	not 	present 	any evidence 	concerning
the District's 	actions 	in April 	1985, 	regarding the docking of
pay at issue. 	During the first day of hearing, 	October 22, 	the
Administrative Law Judge 	(ALJ) 	ruled 	that 	Petrich would 	be
required 	to 	first 	present 	evidence 	regarding 	the District's
past 	practice 	regarding 	notice prior 	to 	the docking of 	pay; 	the
contract 	provisions 	taken 	alone were deemed 	at 	that 	time 	to 	be
insufficient evidence in this 	respect.
The ALJ's February 27 	letter, 	made it clear that the
purpose of 	the April 	10 	hearing would be to 	receive evidence
concerning 	changes 	made 	in 	the District's 	practice 	regarding
15	
.

provision of 	notice 	prior 	to 	the 	docking 	of 	pay.
4
As
indicated above, 	however, 	the charging party chose not 	to
appear 	at 	the 	resumption 	at 	the hearing, 	or to 	present 	at 	that
time 	any 	evidence 	concerning 	changes 	in 	the District's 	past
practice. 	Since 	no 	such 	evidence was 	presented 	during 	the
first day of 	the hearing, 	in October 	1986, 	the 	record 	includes
evidence 	about 	the District's 	practice 	on this 	point, 	as
defined 	by 	the 	collective 	bargaining 	agreement, 	but 	no 	evidence
about 	the 	changes which 	the 	District 	is 	alleged 	to 	have made 	in
its practice.
4 The 	letter 	included 	the 	following:
I 	have 	concluded 	that 	the 	taking 	of 	additional
evidence 	is warranted 	in connection with only one
aspect 	of 	the case, 	that concerning 	the
withholding 	of 	pay 	for 	unauthorized 	absence.
I 	will 	re-open 	the 	hearing 	solely 	for 	the 	purpose
of 	allowing Mr. 	Petrich to 	present 	additional
evidence on this point, 	and also 	allowing 	the
District 	to 	present 	evidence with 	respect 	to 	this
allegation. 	. 	. 	.
. . .
I 	believe 	that 	the various 	provisions 	of 	the
discipline 	article 	of 	the 	CSEA collective
bargaining 	agreement 	do 	establish 	a 	contractual
requirement 	that 	the 	District 	provide 	employees
with 	prior 	notice 	of 	intent 	to 	dock pay 	for
unauthorized 	absence. 	Given this 	conclusion, 	it
is 	appropriate 	to 	allow 	the 	charging 	party to
present 	evidence concerning 	the 	alleged 	change 	in
this 	practice.
16

D. 	The Change of Work Hours 	- June 21, 	1985
From the 	time 	Petrich 	began working 	at 	North High 	School 	in
February 	1985 	until 	late June 	1985, 	his working 	hours 	were
generally 	7:00 	a.m. 	to 	4:00 	p.m., 	with 	an unpaid 	one-hour 	lunch
break. 	Sometime before June 	21, 	North High School 	plant
supervisor 	Phil 	Hodnett 	circulated 	a 	memorandum 	to 	District
employees 	at 	the high school 	altering 	the working 	hours 	of 	a
number 	of 	employees. 	The memorandum 	required 	all 	gardeners 	to
work 	from 	6:00 	a.m. 	to 	2:30 	p.m., 	with 	a 	30-minute 	lunch break
at 	11:00 	a.m. 	The District 	stipulated 	that 	CSEA was 	not
notified of 	this 	change of 	hours, 	or 	given an opportunity to
negotiate 	about 	it.
The 	collective 	bargaining 	agreement 	does 	not 	have 	any
provision which 	deals 	specifically with 	the 	starting 	and 	ending
times 	of 	employee work shifts, 	with a 	single exception not
applicable 	here.5 The 	contract 	section 	pertinent 	to 	the
length of 	lunch hours 	provides 	that 	employees 	shall 	have 	an
unpaid 	uninterrupted 	lunch period 	of 	no 	less 	than 	one-half 	hour
and 	no more 	than one-hour.
Hodnett 	testified 	that 	throughout 	his 	12-year 	tenure with
5The exception 	is 	in 	section 	10.13:
Summer Work Shifts: 	Whenever 	possible, 	without disrupting
or 	interfering with the 	regular workflow of 	the District, 	the
work 	shifts 	of 	Maintenance 	and Operations 	employees 	assigned 	to
the warehouse 	shall 	begin 	at 	7:00 	a.m. 	between July 	1 	and
August 	31 	inclusive. 	Individual 	exceptions 	to 	this 	provision
may be made 	by 	the District.
17

the District, 	summer work hours 	for gardeners 	have been altered
to provide an earlier starting time, 	a 	shorter 	lunch period,
and 	an earlier 	ending 	time than 	is 	the case during 	the 	regular
school year. 	The change 	is made partly for the benefit of
employees, 	who 	then work during 	the early morning cool 	hours,
and 	avoid 	the 	necessity of working 	additional 	time during 	the
hotter 	summer 	afternoons. 	Hodnett 	testified 	the 	same 	practice
had 	been 	followed 	at 	other District 	schools 	at which he worked,
first as a custodian, 	and then as supervisor 	(TR: 	133).
Generally, 	the summer hours have been approximately the same 	as
those designated for 	1985: 	from 6:00 	a.m. 	until 	2:30 p.m., 	with
a 	30-minute 	lunch period.
DISCUSSION AND ANALYSIS
A. 	The Alleged Failure to Hold 	a Level 	2 Meeting 	in
Connection with 	the February 7 	Grievance
It has been found that Tucker, 	on March 7, 	1985, 	held a
Level 	2 meeting with Corona 	and 	Sund 	in connection with the
grievance 	filed by Petrich on February 7, 	1985. 	Petrich was
not present. 	The 	reason for this 	absence 	is not clear. 	Tucker
testified 	that 	he notified CSEA of 	the 	time 	and place of 	the
meeting, 	and did not 	recall 	notifying 	Petrich 	independently of
the meeting 	time 	and place. 	Petrich chose not 	to 	testify at
all; 	thus, 	there is no evidence concerning his recollection of
whether 	he was 	notified 	about 	the 	time 	and place 	of 	the
meeting. 	Of 	the various CSEA agents, 	Corona was 	the person
most 	likely to 	have 	had 	the 	responsibility for 	notifying
18

Petrich 	about 	the meeting; 	Corona was 	not 	called 	to 	testify.
Prince 	and Aldrich, 	both of whom testified, 	credibly denied
having 	any direct 	responsibility 	for 	handling 	the 	grievance.
On these 	facts, 	the 	allegation of 	an unlawful 	unilateral
change 	of 	past 	practice must 	be dismissed. 	Any one 	of 	several
analytical 	paths 	leads 	to 	this 	conclusion.
First, 	the 	facts 	support 	the conclusion that 	a Level 	2
meeting was 	held; 	thus, 	there 	is no 	factual basis 	for 	a
conclusion 	that 	the 	District 	failed 	to 	hold 	the meeting
required by contract, 	thereby changing 	a 	past 	practice.
Alternatively, 	it might 	be 	argued 	that 	the contract
requires 	the presence 	at 	a Level 	2 meeting 	of 	the employee
affected by the grievance. 	In the 	absence of 	the employee, 	it
might 	be 	argued, 	the meeting 	is 	void 	and 	the District 	has 	not
fulfilled 	its 	obligation to 	hold 	a Level 	2 meeting. 	But 	this
last 	conclusion 	stretches 	the meaning 	of 	the 	contractual
language unreasonably. 	If 	the 	absence of 	an 	affected employee,
in itself, 	were enough to 	invalidate a Level 	2 meeting, 	and to
require 	the 	repetition of 	the meeting, 	the possibility of 	abuse
(through voluntary absence of 	the employee) 	is 	apparent. 	In
addition, 	no 	evidence was 	introduced 	to 	suggest 	that 	the
parties 	interpreted 	the Level 	2 	provisions 	this way.
Aldrich 	indicated 	that 	as 	a matter 	of 	practice 	both 	the
District 	and 	CSEA 	took 	steps 	to 	bring 	about 	an 	affected
employee's 	attendance 	at 	a Level 	2 	grievance meeting. 	No
evidence was 	presented 	during 	the 	hearing 	about 	the 	efforts
19

which CSEA might 	have made 	to 	arrange 	for 	Petrich's 	attendance
at 	the Level 	2 	meeting 	held 	in early March.
The pertinent 	facts, 	then, 	are these: 	the contract does not
place 	sole responsibility on 	either 	CSEA or 	the District 	to
arrange 	the 	affected employee's 	attendance 	at 	the meeting; 	the
practice was 	for 	both CSEA 	and 	the 	District 	to 	notify 	the
employee of 	the meeting. 	While 	there 	is 	evidence 	that 	the
District 	did 	not 	notify Petrich of 	this 	particular meeting, 	the
reason 	for 	Petrich's 	absence 	remains 	unclear, 	since Petrich did
not 	himself 	testify 	about 	whether 	CSEA 	told 	him 	about 	the
meeting, 	nor 	did 	he 	call 	Corona 	to 	testify 	about 	notification
efforts 	Corona 	may have made 	on behalf 	of 	CSEA. 	In 	these
circumstances, 	it 	is unreasonable to 	impose sole 	responsibility
for 	Petrich's 	absence on the District, 	and 	invalidate 	a meeting
which 	the 	District 	and 	CSEA 	representatives 	attended 	in 	good
faith.
To 	summarize this 	analysis: 	a Level 	2 meeting was 	held;
Petrich's absence from the meeting, 	alone, 	is 	insufficient 	to
invalidate 	the meeting. 	There 	is 	no 	evidence 	that 	the District
was 	contractually 	responsible 	for 	Petrich's 	absence, 	and 	there
is 	no 	legal 	reason 	for 	holding 	the 	District 	solely 	responsible,
as 	a general 	rule, 	for 	attendance of 	affected employees 	at 	a
Level 2 meeting. 	Thus, 	the District 	fulfilled 	its obligations
with 	respect 	to 	a Level 	2 meeting, 	and no unilateral 	change
took place.
20

Finally, 	there 	is 	a 	third 	reason to dismiss 	the 	allegation
of 	an unlawful 	unilateral 	change 	in 	the 	District's 	practice.
Even 	if 	it were 	to 	be concluded 	(contrary 	to 	the 	conclusion
here) 	that 	the District 	had violated 	the 	contract 	terms 	by
failing 	to hold 	a Level 	2 meeting, 	or by failing 	to hold 	a
Level 	2 meeting with Petrich 	in attendance, 	there 	is 	no
evidence 	that 	this 	single 	violation was 	a 	change 	of 	generalized
effect 	or 	continuing 	impact.
As 	noted on page 2 	above, 	EERA section 	3541.5 	prohibits
PERB 	from issuing 	a 	complaint 	based 	on 	a 	conduct which 	is
solely a contract 	violation, 	and not 	a 	unilateral 	change 	of
practice. 	In Grant, 	supra, 	the Board held that employer
actions 	which did 	not 	have 	a 	generalized 	effect 	or 	continuing
impact 	on members 	of 	the 	bargaining 	unit would 	not 	be 	found 	to
be unilateral 	changes 	in conditions. 	At most, 	these might be
contract violations, 	these determinations 	to 	be made 	in 	the
fashion dictated 	by the 	contract 	itself 	(typically, 	through 	an
arbitration procedure).
4 . . . .
Petrich offered 	no 	evidence 	that 	the 	District 	explicitly
stated 	an 	intention 	to 	by-pass 	the 	contractual 	requirement 	of 	a
Level 	2 meeting, 	or 	to by-pass 	the 	requirement 	that 	the
affected 	employee 	be 	permitted 	to 	attend 	the meeting. 	Nor 	did
Petrich 	present 	any evidence 	from which 	it 	might 	be 	inferred
that 	the 	District 	had 	embarked 	on 	a 	new policy with 	respect 	to
Level 	2 	meetings, 	and that 	in 	following 	this 	new policy the
District 	refused 	to 	hold 	Level 	2 	meetings 	on 	other 	grievances.
21
,,

Even if Tucker's evidence were to be rejected, 	and a 	factual
finding made that no Level 2 conference took place, 	there 	is no
evidence 	to 	support 	a conclusion that 	this 	action was 	anything
other 	than a 	single contract violation.
B. 	The Failure to Hold the Level 	1 Meeting 	in Connection
With the Grievance of March 	8.
The evidence shows, 	and the District acknowledges, 	no
Level 	1 meeting 	- 	attended by Petrich 	and Petrich's 	immediate
supervisor 	- was 	held 	in connection with 	the grievance 	filed
March 8. 	The District 	argues 	in its brief 	that portions 	of
Tucker's 	testimony prove that 	the District had 	a practice of
not holding 	a Level 	1 meeting 	if 	the 	immediate 	supervisor was
not 	in a position to provide 	a 	remedy of 	the kind 	sought 	by the
grievant. 	While that would be a 	reasonable approach to Level 	1
meetings, 	Tucker's 	testimony on this 	point consists 	of no more
than a casual 	remark, 	without 	specifics of 	any kind. 	Insofar
as the testimony is offered to prove a general pattern, 	I do
not credit 	it.
Aldrich's 	testimony is 	slightly more 	specific 	and 	it 	is
credited. 	Aldrich 	testified 	that 	on occasion the District 	and
CSEA agreed, 	in writing, 	to waive a Level 1 hearing or a
Level 2 hearing for a particular grievance, 	or to extend a
contractual deadline with respect 	to 	a 	specific grievance.
Contrary to the District's argument, 	then, 	I 	find that the
established practice 	in the District was 	to hold a Level 	1
meeting 	in response to a grievance, 	pursuant to the contractual
22

requirement, unless 	the 	requirement was waived 	in writing by-
CSEA .
There 	is 	no evidence that CSEA agreed, 	in writing or
otherwise, 	to waive the Level 	1 meeting with respect to
Petrich's March 8 grievance.
While 	there 	is 	evidence that 	the District 	failed to comply
with the contractual 	requirement of 	a Level 	1 meeting, 	there 	is
no 	evidence 	that 	the District 	thereby adopted 	a 	new practice 	or
policy with 	respect 	to Level 	1 meetings 	generally. 	Petrich
introduced 	no 	evidence with 	regard 	to 	any other 	grievances
-
other than his own February 7 grievance, 	in which a Level 	1
meeting 	apparently was held. 	Certainly the 	failure to hold 	a
Level 	1 meeting 	in this 	case had no generalized effect 	or
continuing 	impact: 	Tucker 	agreed to consider the grievance 	at 	a
Level 	2 meeting very quickly after 	it came to his 	attention.
Thus, 	it must be concluded that the District's 	action in
this 	respect 	is no more than a single violation of 	a
contractual provision, 	rather than a unilateral change of
practice. 	The 	allegation that 	the District's 	action in this
respect 	represents 	a unilateral change of 	a past practice will
be dismissed.
C. 	The Alleged Failure 	to Provide Notice Prior 	to 	the
Docking of 	Pay on April 	30
As 	stated 	in the findings of 	fact, 	on pages 	11-14 	above,
the provisions in the contract, 	taken together, 	provide
sufficient evidence 	to 	establish a past 	practice with 	respect
23

to notice 	to 	employees 	prior 	to 	the 	imposition of 	discipline
less 	than 	suspension without 	pay or dismissal. 	While 	the
complaint 	alleges 	that 	the District 	altered 	this 	practice 	on 	or
about April 	30, 	1985, 	the charging party presented no evidence
regarding 	any change which might 	have 	occurred 	at 	that
time. 6 Because of 	the 	absence of 	such evidence 	the
allegation of 	a 	unilateral 	change 	in past 	practice will 	be
dismissed.
D. 	The Alteration of Working Hours 	for 	the 	Summer. 	1985
Employees' 	working hours 	are within the scope of
representation. 	As 	a general 	rule, 	employers 	are 	required to
negotiate 	about 	the matter with 	the 	union 	representing 	the
employees whose hours 	are 	to 	be determined, 	or 	to 	be 	altered.
EERA section 	3543.2; 	Palos Verdes 	Peninsula Unified 	School
District 	(1979), 	PERB Decision No. 	96.
As 	noted 	above, 	there 	is 	nothing 	in the collective
bargaining 	agreement 	referring 	to 	the 	starting 	times 	and 	ending
times 	of 	employees 	in the CSEA-represented unit, 	other 	than one
reference 	affecting 	a 	specific 	group 	of 	employees which does
not 	include 	Petrich.
Despite 	the 	absence 	of 	reference 	to 	starting 	times 	and
ending 	times 	in 	the contract, 	the 	statutory obligation 	to
negotiate changes 	in the hours 	of work 	applies 	to 	the District
6The 	circumstances 	surrounding 	that 	failure 	to 	present
such evidence 	are described 	on pages 	4 	and 	15-16 	above.
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during 	the 	period 	of 	the 	contract. 	The District 	stipulated
that 	it 	did 	not 	give CSEA notice 	of 	the 	change 	in working 	hours
directed by Hodnett, 	nor 	an opportunity to 	negotiate 	about 	the
change.
The 	facts 	set 	out 	establish 	a 	prima 	facie 	case 	of 	a
unlawful unilateral change of working hours. 	However, 	the
evidence 	introduced 	also 	establishes 	a 	valid 	defense 	to 	the
charge. 	The District 	had 	a 	long-standing 	and 	open practice 	of
altering 	the working 	hours 	of 	gardeners 	during 	the 	summer. 	For
several years, 	during 	the summer 	recess, 	the District's
gardeners 	were 	required 	to 	begin work earlier 	in 	the 	day 	than
during 	the normal 	school year, 	and 	to 	finish earlier. 	The
District's 	practice, 	according 	to 	Hodnett's 	credible 	testimony,
was 	to 	set 	summer 	hours 	from 	approximately 	6:00 	a.m. 	until
approximately 2:30 	p.m., 	the 	hours which Hodnett 	set 	for 	North
High School gardeners, 	including Petrich, 	in June 	1985.
Nothing 	in 	the 	collective 	bargaining 	agreement 	between 	CSEA 	and
the District 	required 	the District 	to 	abandon 	this 	practice.
Since 	the District's 	action 	in 	June 	1985 	was 	consistent
with 	its 	past 	practice 	in this 	regard, 	the District 	cannot 	be
found 	guilty of 	having 	unilaterally 	altered 	a 	past 	practice.
Pajaro Valley Unified 	School 	District 	(1978) 	PERB 	Decision
No. 	51; 	Rio Hondo Community College District 	(1982) 	PERB
Decision No. 	279, 	at pp. 	17-19.
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. . . .
PROPOSED 	ORDER
The 	allegation of 	the complaint, 	as 	set out 	in paragraphs 	4
and 	5, 	that 	in February 1985 	the 	respondent unilaterally
changed 	a 	past 	practice by 	its 	refusal 	to 	hold 	a Level 	2
conference 	for 	a 	grievance 	filed 	by the 	charging 	party
February 7, 	1985, 	is hereby dismissed.
The 	allegation of 	the complaint, 	as 	set out 	in paragraphs 	6
and 	7, 	that 	the 	respondent 	unilaterally changed 	a 	past 	practice
by its 	refusal 	to 	hold 	a Level 	1 grievance meeting 	in
connection with 	a 	grievance 	filed 	by 	the 	charging 	party 	on
March 8, 	1985, 	is hereby dismissed.
The 	allegations 	of 	the complaint, 	as 	set out 	in paragraphs
8 	and 9, 	that on or 	about April 	30, 	1985 	the 	respondent changed
its 	practice with 	respect 	to 	giving 	an employee 	prior 	notice 	of
its 	intention to withhold a 	portion of 	the employee's 	pay
because 	of 	unauthorized 	absence, 	is 	hereby dismissed.
The 	allegation of 	the complaint, 	as 	set out 	in paragraphs
10 	and 	11, 	that 	the 	respondent unilaterally changed 	a 	past
practice 	by changing 	the working 	hours 	of 	the 	charging 	party
beginning June 21, 	1985, 	is hereby dismissed.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final 	unless 	a party files 	a 	timely 	statement 	of
exceptions 	with 	the 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento within 	20 days 	of 	service of 	this 	Decision. 	In
accordance with PERB Regulations, 	the 	statement 	of 	exceptions
26

should 	identify by page 	citation 	or 	exhibit 	number 	the 	portions
of 	the 	record, 	if 	any, 	relied upon for 	such exceptions. 	See
California Administrative Code 	title 	8, 	part 	III,
section 32300. 	A document 	is 	considered 	"filed" 	when 	actually
received 	before 	the close of 	business 	(5:00 	p.m.) 	on the 	last
day set 	for 	filing, 	". 	. 	. o r when sent by telegraph or
certified 	or 	Express 	United 	States 	mail, 	postmarked 	not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon each party to 	this 	proceeding. 	Proof 	of
service 	shall 	accompany each 	copy 	served 	on 	a 	party 	or 	filed
with 	the 	Board 	itself. 	See California Administrative Code,
title 8, 	part III, 	sections 32300, 	32305, 	and 32140.
Dated: 	April 28, 	1987
MARTIN 	FASSLER
Administrative 	Law 	Judge
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