Riverside Unified School District (Petrich) (PERB A152E)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
TONY	
PETRICH,
Charging
	Party,
v.
RIVERSIDE 	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
TONY
	PETRICH,
Charging
	Party,
v.
RIVERSIDE 	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case 	Nos.
	LA-CE-2112
LA-CE-2130
LA-CE-2134
Administrative
	Appeal
PERB
	Order
	No. 	Ad-152
December
	13,
	1985
Case
	No. 	LA-CE-2143
Appearance:	
Tony
	Petrich,
	on
	his
	own
	behalf.
Before
	Jaeger,
	Morgenstern
	and
	Burt,
	Members.
DECISION
BURT,
	Member:
	Charging
	Party,
	Tony
	Petrich,
	appeals 	the
executive
	director's
	determinations
	denying
	his 	requests 	in 	the
above-captioned 	cases
	that
	the 	Public
	Employment
	Relations
Board
	(PERB
	or 	Board)
	direct
	the
	administrative
	law 	judge
	(ALJ)
to
	transfer
	the 	records 	of 	hearings 	to 	the
	Board
	for 	decision
by	
the
	Board
	itself.
	Because 	both
	administrative 	appeals
present 	the
	same
	question 	regarding 	application
	of
	section

32215 	of 	the 	Board 1 s 	Regulations, 1 we 	have 	consolidated 	the
appeals 	for 	purposes 	of 	this 	decision. 2 As 	further 	set 	forth
below, 	we 	have 	determined 	that 	the 	executive 	director 	properly
denied 	Charging 	Party 1 s 	requests 	in 	both 	cases.
PROCEDURAL 	HISTORY 	AND 	CHARGING 	PARTY'S 	REQUESTS
In 	consolidated 	Case 	Nos. 	LA-CE-2112, 	LA-CE-2130 	and
LA-CE-2134, 	formal 	hearing 	was 	completed 	before 	a 	PERB 	ALJ 	on
July 	17, 	1985. 3 On 	August 	20, 	Charging 	Party 	filed 	with 	the
Board 	a 	request 	that 	the 	Board 	direct 	the 	ALJ 	to 	transfer 	the
record 	of 	the 	case 	together 	with 	her 	findings 	of 	fact 	to 	the
Board 	for 	decision 	by 	the 	Board 	itself. 	In 	support 	of 	his
request, 	he 	included 	extensive 	legal 	arguments 	that 	the 	Board
should 	revise 	a 	number 	of 	its 	p~ecedential 	decisions. 	Charging
Party 	argued 	that 	the 	substantial 	nature 	of 	his 	proposed
lPERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	section 	31001 	et 	seq.
Section 	32215 	reads 	in 	pertinent 	part 	as 	follows:
A Board 	agent 	shall 	issue 	a 	written 	proposed
decision 	or 	submit 	the 	record 	of 	the 	case 	to
the 	Board 	itself 	for 	decision 	pursuant 	to
instructions 	from 	the 	Board 	itself.
2separate 	formal 	hearings 	have 	been 	conducted 	in 	these
cases, 	both 	Qf 	which 	are 	now 	pending 	before 	the 	same 	PERB 	ALJ.
In 	addition, 	Charging 	Party 	has 	filed 	other 	appeals 	in 	each
case, 	which 	are 	now 	pending 	before 	the 	Board. 	We 	therefore
emphasize 	that 	this 	consolidation 	is 	for 	the 	purposes 	of 	these
administrative 	appeals 	alone.
3All 	dates 	are 	in 	1985, 	unless 	otherwise 	specified.
2

revisions 	warrants 	initial 	review 	of 	this 	case 	by 	the 	Board
itself.
By 	letter 	dated 	August 	29, 	the 	Board's 	executive 	director
denied 	Charging 	Party's 	request, 	and 	this 	appeal 	followed 	on
September 	8. 	In 	his 	appeal, 	Charging 	Party 	asserts 	as
additional 	grounds 	for 	initial 	Board 	review 	that 	the 	ALJ 	was
"confused" 	as 	to 	the 	nature 	of 	his 	charges.
In 	Case 	No. 	LA-CE-2143, 	formal 	hearing 	has 	been 	proceeding
before 	the 	same 	PERB 	ALJ. 	The 	hearing 	has 	been 	in 	recess 	since
September 	18, 	pending 	the 	ALJ's 	decision 	on 	the 	Riverside
Unified 	School 	District's 	(Respondent) 	motion 	to 	dismiss. 	On
October 	21, 	Charging 	Party 	filed 	with 	the 	Board 	his 	request 	for
decision 	by 	the 	Board 	itself 	in 	Case 	No. 	LA-CE-2143. 	and
further 	requested 	that 	the 	Board 	consolidate 	Case 	No.
LA-CE-2143 	with 	Case 	Nos. 	LA-CE-2112 	et 	al., 	for 	purposes 	of
its 	decision. 	In 	support 	of 	this 	request, 	he 	included
additional 	legal 	arguments 	that 	the 	Board 	should 	revise 	its
precedents. 	He 	further 	alleged 	that 	the 	ALJ 	had 	breached 	her
neutrality 	during 	the 	course 	of 	the 	formal 	hearings 	in 	both·
consolidated 	Case 	Nos. 	LA-CE-2112 	et 	al. 	and 	case 	No.
LA-CE-2143.
By 	letter 	dated 	November 	8, 	the 	executive 	director 	denied
Charging 	Party's 	request 	in 	Case 	No. 	LA-CE-2143, 	and 	this
appeal 	followed 	on November 	18. 	In 	his 	appeal, 	Charging 	Party
reiterates 	as 	grounds 	for 	his 	request 	the 	substantial 	nature 	of
3

his 	proposed 	changes 	in 	Board 	precedent, 	and 	the 	ALJ's 	alleged
breadh 	of 	neutrality.
Respondent 	has 	not 	filed 	a 	response 	to 	either 	of 	Charging
Party's 	requests.
DISCUSSION
The 	Board's 	powers 	to 	investigate 	and 	decide 	unfair
practice 	charges 	are 	established 	in 	the 	Educational 	Employment
Relations 	Act 	(EERA) 	section 	3541.3(h) 	and 	(i). 4 As 	required
by 	EERA 	section 	3541.5, 5 the 	Board 	has 	established
4The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	noted, 	all 	statutory 	references 	are
to 	the 	Government 	Code.
Section 	3541.3 	states 	in 	pertinent 	part:
The 	board 	shall 	have 	all 	of 	the 	following
powers 	and 	duties:
(h) 	To 	hold 	hearings, 	subpoena 	witnesses,
administer 	oaths, 	take 	the 	testimony 	or
deposition 	of 	any 	person, 	and, 	in 	connection
therewith, 	to 	issue 	subpoenas 	duces 	tecurn 	to
require 	the 	production 	and 	examination 	of
any 	employer's 	or 	employee 	organization's
records, 	books, 	or 	papers 	relating 	to 	any
matter 	within 	its 	jurisdiction.
(i) 	To 	investigate 	unfair 	practice 	charges
or 	alleged 	violations 	of 	this 	chapter, 	and
take 	such 	action 	and 	make 	such
determinations 	in 	respect 	of 	such 	charges 	or
alleged 	violations 	as 	the 	board 	deems
necessary 	to 	effectuate 	the 	policies 	of 	this
chapter.
5section 	3541.5 	reads 	in 	pertinent 	part 	as 	follows:
The 	initial 	determination 	as 	to 	whether 	the
charges 	of 	unfair 	practices 	are 	justified,
4

procedures
	for
	investigating,
	hearing
	and
	deciding
	unfair
practice
	charges.
	It
	has
	delegated
	its
	powers
	to 	conduct
unfair 	practice
	hearings 	to
	ALJs
	as
	permitted
	by
	EERA
	section
3541.3(k).
6
However,
	the
	Board,
	and
	not 	the
	ALJ,
	has
	final
authority
	to 	determine
	unfair 	practice
	charges.
	By
	filing
appropriate
	exceptions 	pursuant
	to
	section
	32300
	of
	the
	Board's
Regulations,
7 a
	party
	to 	an
	unfair 	practice
	case
	may
	obtain
and,
	if
	so,
	what
	remedy
	is
	necessary
	to
effectuate
	the
	purposes
	of
	this
	chapter,
shall
	be 	a
	matter 	within
	the
	exclusive
jurisdiction
	of
	the
	board. 	Procedures
	for
investigating,
	hearing,
	and
	deciding 	these
cases
	shall
	be
	devised
	and
	promulgated
	by
the
	board
	.
6section
	3541.3
	provides 	in
	pertinent 	part
	as
	follows:
The
	Board
	shall
	have
	all
	of
	the 	following
powers 	and
	duties:
(k)
	To
	delegate
	its
	powers
	to
	any
	member
	of
the
	board 	or 	to
	any
	person 	appointed
	by
	the
board
	for 	the 	performance 	of
	its
	functions,except
	that
	no
	fewer
	than
	two
	board
	members
may
	participate
	in 	the 	determination
	of 	any
ruling
	or
	decision
	on
	the 	merits
	of
	any
dispute
	coming
	before
	it
	and
	except
	that
	a
decision 	to 	refuse 	to 	issue
	a
	complaint
shall 	require 	the 	approval 	of
	two
	boardmembers.
7Regulation
	32300:
(a)
	A
party
	may
	file
	with 	the 	Board
	itself
an
	original
	and
	five 	copies 	of
	a
	statementof 	exceptions 	to
	a
	Board
	agent's
	proposed
decision 	issued 	pursuant 	to 	section
	32215,
and
	supporting 	brief, 	within
	20
	days
following 	the 	date 	of 	service 	of 	the
decision 	or 	as 	provided 	in 	section
	32310.
5

review
	of 	an 	ALJ's 	proposed
	decision,
	including
	review
	of
findings
	of
	fact
	(see
	Anaheim
	City
	School
	District
	(1984)
	PERB
Decision
	No.
	364a)
	and
	of
	conclusions
	of
	law.
	When
	exceptions
are
	filed,
	the
	Board
	reviews
	the
	entire
	case 	record
	established
at
	the
	formal
	hearing.
	The
	Board's
	decision,
	and
	not 	the
	ALJ's
proposed
	decision,
	will 	establish
	precedent
	for 	future 	cases.
8
The
	statement.of
	exceptions
	and
	briefs 	shall
be
	filed
	with 	the
	Board
	itself
	in
	the
headquarters
	office.
	Service
	and
	proof 	of
service
	of
	the 	statement
	and
	brief
	pursuantto
	section
	32140
	are 	required.
	The
statement
	of
	exceptions
	shall:
(1)
	State
	the
	specific
	issues
	of
procedure,
	fact,
	law
	or
	rationale
	to
which
	each
	exception
	is
	taken;
(2)
	Identify
	the
	page
	or
	part
	of
	the
decision
	to
	which 	each
	exception
	is
taken;
(3)
	Designate
	by
	page
	citation
	or
exhibit
	number
	the
	portions
	of
	the
record
	relied
	upon
	for
	each
	exception;
(4)
	State
	the
	grounds
	for
	each
exception.
(b)
	Reference
	shall
	be 	made
	in 	the
statement
	of
	exceptions 	only 	to 	matterscontained 	in 	the 	record 	of 	the 	case.
(c)
	An
	exception 	not
	specifically
	urged
shall
	be
	waived.
Bwe
	note
	that
	the
	Board 	amended
	section
	32215
	effective
November 	9, 	1985,	
by 	adding 	the 	following 	sentence 	to 	the
existing 	text
	quoted 	above:
Unless 	expressly 	adopted 	by 	the
	Board
itself,
	a
	proposed 	or
	final
	Board 	agent
6

Charging 	Party 	asks 	the 	Board 	to 	depart 	from 	its 	usual
procedures 	in ~hese 	cases. 	and 	to 	decide 	these 	cases 	without
benefit 	of 	an 	ALJ's 	decision. 	While 	the 	Board 	has 	authority 	to
do 	so, 	as 	stated 	in 	section 	32215 	of 	its 	Regulations, 	it 	has
exercised 	this 	authority 	on 	rare 	occasions, 	and 	primarily 	for
reasons 	of 	administrative 	efficiency. 9
The 	only 	reasons 	advanced 	by 	Charging 	Party 	for
transferring 	these 	cases 	directly 	to 	the 	Board 	are 	the
significance 	he 	attaches 	to 	his 	proposed 	revisions 	in 	Board
precedents 	and 	his 	unsupported 	suspicions 	as 	to 	the 	ALJ's
neutrality. 	These 	are 	not 	adequate 	reasons 	for 	dispensing 	with
a 	full 	proposed 	decision 	by 	the 	ALJ. 	All 	of 	Charging 	Party's
concerns 	can 	be 	fully 	addressed 	by 	the 	Board, 	based 	on 	its
review 	of 	the 	entire 	case 	records, 	should 	he 	find 	it 	necessary
to 	except 	to 	the 	ALJ 1 s 	proposed 	decisions 	in 	these 	cases.
decision, 	including 	supporting 	rationale,
shall 	be 	without 	precedent 	for 	future 	cases.
This 	amendment 	codifies 	existing 	Board 	policy 	concerning
the 	absence 	of 	precedential 	effect 	of 	ALJs 1 	proposed 	decisions.
91n 	San Francisco 	Community 	College 	District 	(1979) 	PERB
Decision No. 	105, 	numerous 	unfair 	practice 	cases 	then 	pending
before 	the 	Board 	raised 	defenses 	to 	refusal-to-bargain 	charges
based 	upon 	the 	passage 	of 	Proposition 	13. 	By 	deciding 	one 	lead
case, 	the 	Board 	was 	able 	to 	substantially 	expedite 	the
processing 	of 	many 	cases.
Similarly, 	although 	the 	hearings 	to 	determine 	units 	under
the 	Higher 	Education 	Employer-Employee 	Relations 	Act 	and 	the
State 	Employer-Employee 	Relations 	Act 	were 	conducted 	by 	its
agents, 	the 	Board 	directly 	reviewed 	the 	voluminous 	records 	to
expedite 	implementation 	of 	the 	respective 	Acts.
7

Furthermore.
	no
	administrative
	purpose
	would 	be
	served
	by
departing
	from
	the 	Board's
	normal
	procedures 	in 	these
	cases.
ORDER
For
	the
	reasons
	set
	forth
	above,
	Tony
	Petrich's
	requests
to
	transfer
	Case 	Nos.
	LA-CE-2112,
	LA-CE-2130
	and
	LA-CE-2134
	and
Case
	No. 	LA-CE-2143
	to 	the
	Public
	Employment
	Relations
	Board
for
	initial
	decision
	by
	the
	Board
	itself
	are
	hereby
	DENIED.
Members
	Jaeger
	and
	Morgenstern 	joined
	in
	this
	Decision.
8