Fresno Unified School District (PERB A072E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
FRESNO
	UNIFIED
	SCHOOL
	DISTRICT,
Charging
	Party,
v.
FRESNO
	TEACHERS
	ASSOCIATION,
	CTA/NEA,
Respondent.
Case No.
	S-C0-33(78/79)
PERB
	Order
	No.
	Ad-72
ADMINISTRATIVE
	APPEAL
July
	19,
	1979
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FRESNO
	TEACHERS
	ASSOCIATION, 	CTA/NEA,
Charging
	Party,
v.
FRESNO
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
___________________ )
Case 	No.
	S-CE-257(78/79)
Appearances:	
Lee T.
	Paterson, 	Attorney 	(Paterson
	and
	Taggart)
	for
Fresno 	Unified
	School
	District;
	Ernest
	H.
	Tuttle,
	III,
	Attorney
(Tuttle
	and
	Tuttle) 	for
	Fresno 	Teachers
	Association,
	CTA/NEA.
Before
	Gluck,
	Chairperson;
	Gonzales 	and Moore, 	Members.
DECISION
AND
	ORDER
The 	Fresno 	Unified
	School
	District
	has
	filed
	a 	motion
	with
the 	Public
	Employment
	Relations
	Board
	(hereafter
	PERB
	or
	Board)
seeking 	to 	ip:nnediately
	transfer
	an
	unfair 	practice
	proceeding 	to
the
	Board
	itself
	for 	hearing
	and
	decision.
	The Board
	denies 	the
motion 	to
	transfer 	for 	the 	reasons
	set 	forth 	in
	the
	recommendations
contained 	in 	the 	attached
	letter
	of 	the
	PERB
	general 	counsel 	to
the 	moving
	party.
PER 	CURIAM

mm
01' CAi.il'ORNI.A
PUBLJC
	EMPLOYMENT R!LA
TIONS 	BOARD
Headquarters Office
923 t 2th Street, Suite
201
Sacrcment0, California 	95814
(916) 322..3088
June
	21,
	1979
Mr. 	Lee 	T.
	PatersonMr.	
James 	C.	
Romo
Paterson	
&
Taggart
2550
	Via Tejon,
	Suite
	3N
Palos
	Verdes
	Estates,
	CA
	90274
EDMUND
G.
BROWN
JR..
c..,,,.,,.o,.
RE:
	Motion
	to 	Transfer
	Unfair
	Practice
	Charge
	S-C0-33(78/79)
to 	the
	Board
	Itself
Dear
	Sirs:
On
	June 	6,
	1979,
	on
	behalf 	of 	the
	Fresno.
Unified
	School
	District,
you
	filed
	a
	motion
	to
	transfer
	the
	above
	unfair 	practice
	charge
immediately 	to
	the
	Board
	itself
	for'riearing
	and
	decision.
	The
charge
	was
	filed
	with hearing
	officer
	Gary
	Gallery
	of
	the
	Sacramento
Regional
	Officee	
~
The
motion
	alleged
	as
	authority
	Title
	8,
	California
Administrative
	Code,
	section
	35018(c).
	As
	a
	hearing
	officer
	has 	no
authority
	to
	transfer
	an
	unfair 	practice
	charge
	directly
	to 	the
Board
	itself,
	the
motion
	has 	been
	referred 	to
	the 	General 	Counsel.
Section
	35018(c) 	does
	not
	exist 	currently
	as
	a
	PERB
	rule.
Section
	32215
	authorizes 	the
	Board
	itself
	to
	initiate
	submission
of
	a
	hearing 	record 	to
	it
	directly 	for 	decision. 	Section
	32168
authorizes
	the
	Board
	itself
	or
	any member
	thereof
	to 	conduct
an
	unfair 	practice
	hearing
	initially.
	Under
	either
	of 	these
sections 	the
	Board
	itself
	must
	initiate
	an
	action 	ta
	transfer
	a
charge 	or 	hearing 	record 	to
	it.
	Such 	a
	decision
may
	not
	be
your
	made	
by 	the
	General 	Counsel. 	Therefore,
	I 	have
	refiled
motion
	on
	this
	date with
Mr.
	Steve 	Barber, 	Executive Assistant
to
	the
	Board.
In 	past 	instances 	certain
	case 	records 	have 	been
	transferred
directly
	to 	the
	Board	
by	
its 	initiative
	following
	a 	recommendation
from
	the 	General 	Counsel.
	As 	a
	party
	has 	no
	right
	to	
a	
transfer
be	to 	the
	Board
	itself,
	I 	must 	assume
	that
	your 	motion
	will
decided 	in 	the 	discretion 	of 	the 	Board
	itself
	and 	you
	will
	be
notified 	if
	the 	Board 	determines 	to 	grant 	the motion.

Mr.
	Lee
	T.
	Paterson
Mr.
	James
	C.
	Romo
June 	21,
	1979
I
	have
	not
	recommended
	that
	the
	Board
	initiate
	the
	transfer 	in
case 	no.
	S-CO-33(78/79)
	for
	the
	following
	reasons:
1. 	Hearings
	are
	cur;rently being
	conducted
	on
	charges
alleging
	that
	a
	strike
	constitutes
	an
	unfair 	practice
under
	the
	EERA.
	The
	present
	case
	is
	no more
	unique
than
	other
	strike
	cases
	currently
	pending
	before 	hearing
officers.
2.	
In
	its
	May
	16,
	1979 	amended
	charge, 	charging
	party
"prays
	that
	respondents
	1:ie
	found
	to
	have
	violatedsection
	3543,
	subdivision
	(b)
	and
	(c)
	and
	section
	3543
of
	the
	act 	for violation
	of
	a
	valid 	collective
bargaining
	agreement
.•••
"
	"Further,
	charging
	party
prays
	that
	the
	PERB
	award
	to 	the
	District
monetary
damages
	for
	breach
	of 	contract
•••.
"
	No
	section
	3543(b)
and
	(c)
	exist 	in
	the
	EERA.
	Section
	3543
	itself
	is
not
	an
	unfair
	labor
	practice,
	but
	specifies
	the
	rightsof
	public
	school
	employees. 	Assuming
	charging
	party
means	
to	
allege 	that
	section
	3543.6(b)
	and
	(c)
	have
been
	violated,
	the
	normal
	case 	processing
	and
	hearingprocedures
	afford
	a
	full
	opportunity 	for
	a
	review
ofboth 	the
	charge
	for 	legal 	sufficiency
	and 	PERB's
jurisdiction.	
On	
the
motion
	of
	a
	party 	or his 	or her
own
	motion,
	the 	hearing
	officer
may
	dismiss 	the 	charge
for 	lack of 	jurisdiction
	providing 	the
	parties
	a
	full
opportunity 	to 	appeal 	the 	dismissal 	to 	the
	Board
	itself.
The
	bases 	for
	my
	recommendation	
to	
the
	Board
	itself
	are
	stated
for
	your 	information
	and
	in
no way
	give 	information
	as 	to
	the
final
	decision
	by
	the
	Board on 	your motion.
Sincerely,
William
	P. 	Smith
General
	Comisel 	,
WFT:bf
cc: 	Ernest
	H.
	Tuttle,
III
Tuttle	
&
Tuttle
4991 E. 	McKinley No. 	110
Fresno,
	CA
	93727
Robert 	S. 	Germain
Fresno 	Teachers 	Assn.
5340 North 	Fresno
Fresno,
	CA
	93710
Gordon Graves
Fresno
	USD
Education 	Center, 	Tulare 	& M
Sts.Fresno,
	CA
	93721