Santa Monica-Malibu Unified School District (PERB A163E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SANTA MONICA-MALIBU UNIFIED 	SCHOOL
DISTRICT,
Employer,
and,
CALIFORNIA 	SCHOOL 	EMPLOYEES 	ASSOCIATION
AND 	ITS CHAPTER #227,
Exclusive 	Representative,
and,
LOCAL 6 60, SEIU, AFL-CIO,
Petitioner.
Case No. 	LA-D-200
(LA-R-861C)
Administrative 	Appeal
PERB Order No. 	Ad-163
April 15, 	1987
Appearance: 	E. 	Luis Saenz, 	Attorney for California School
Employees Association 	and 	its 	Chapter 	#227.
Before Hesse, 	Chairperson; 	Porter and Craib, Members.
DECISION
CRAIB, 	Member: 	This 	case 	is 	before 	the Public Employment
Relations 	Board 	(PERB 	or 	Board) 	on 	appeal 	from the 	attached
administrative 	decision 	by 	the 	PERB 	Los 	Angeles 	Regional
Director 	finding 	the 	filing 	of 	a 	decertification 	petition 	by
Local 	660, 	SEIU, 	AFL-CIO 	(SEIU) 	to be timely. 	In short, 	the
Regional 	Director's 	decision 	finds 	the 	petition 	timely despite
a 	technical violation of PERB Regulation 32140(b),1 which
states 	that where 	service 	is 	required 	it 	shall 	be concurrent
1PERB 	Regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	part 	III, 	section 31001 et seq.
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with 	the 	filing 	in question. 	While 	SEIU's 	petition was
received 	by 	PERB 	in 	a 	timely 	fashion 	and 	included 	the 	required
proof 	of 	service, 	investigation 	revealed 	that 	the 	other 	parties
were 	in 	fact 	not 	served until 	two 	days 	later, 	after 	a 	new
collective 	bargaining 	agreement 	had 	been 	agreed 	to 	by 	the 	Santa
Monica-Malibu Unified 	School 	District 	(District) 	and 	the
incumbent 	union, 	the California 	School 	Employees 	Association
and its Chapter #227 	(CSEA).2
We 	have 	reviewed 	the 	Regional 	Director's 	decision 	and 	the
exceptions 	thereto 	filed by CSEA, 	as well 	as 	the 	entire 	record
in this 	case. 	In 	light of 	all 	the circumstances, 	particularly
the 	lack of 	prejudice 	reflected 	by 	the 	District 	and 	CSEA's
actual 	knowledge 	of 	the 	filing 	of 	the petition prior 	to 	the
signing 	of 	a 	new 	agreement, 	we 	find the Regional 	Director's
decision 	free 	from prejudicial 	error 	and 	adopt 	it 	as 	the
Decision of 	the 	Board 	itself. 3
2 As 	we 	find 	that 	the 	petition was 	effectively 	filed 	prior
to 	the execution of 	the 	tentative 	agreement, 	we need not
consider whether, 	under the circumstances of 	this case, 	the
existence of 	a 	tentative 	agreement would 	have barred 	a
decertification 	petition.
3In 	his 	concurring 	opinion, 	Member 	Porter 	relies 	chiefly
on 	the case 	of 	Dobrick v. 	Hathaway 	(1984) 	160 	Cal.App.3d 	911
[207 Cal.Rptr. 	50] 	for the proposition that 	service
requirements 	must 	be 	strictly complied with 	in order 	to make 	a
filing 	valid. 	We 	find more 	instructive 	the case 	of 	Lum v.
Mission Inn Foundation. 	Inc. 	(1986) 	180 Cal.App.3d 967. 	In
Lum, 	as 	in Dobrick, 	a party filed 	a 	request 	for 	a 	trial 	de novo
after 	an 	adverse 	arbitration 	award 	but 	failed 	to 	attach 	a
proper 	proof 	of 	service 	or 	actually 	serve 	the 	opposing 	parties
prior 	to 	the expiration of 	the 	filing 	period. 	However, 	in Lum,
as 	in the 	instant 	case, 	the opposing 	parties 	received 	actual
notice of 	the 	filing 	prior 	to 	the 	last day for 	filing. 	In
finding 	the 	filing 	timely, 	the Lum court 	concluded 	that 	the
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purpose 	of 	the 	service 	requirement was 	fulfilled 	and
that 	the 	Dobrick decision was 	distinguishable:
Where, 	as here, 	the request has been filed
within 	the 	statutorily 	prescribed 	time 	and
the 	adverse 	party has 	obtained within 	the
statutory 	time 	actual 	notice 	the 	request was
timely filed, 	the purpose of 	the proof 	of
service 	requirement 	has 	been 	entirely
fulfilled. 	That 	being 	so 	and defendants
having 	admitted 	they were 	not 	prejudiced 	in
any way by the omission, 	dismissal 	of 	the
action was 	improvident. 	(Citations 	omitted)
We do not view Dobrick v. 	Hathaway, 	supra.
160 	Cal.App.3d 	913 	as 	inconsistent with our
conclusions. 	First of all, 	Dobrick is
factually distinguishable 	on 	a 	fundamental
point. 	In that 	case 	the 	attorney for 	the
party 	resisting 	trial 	de 	novo 	did 	not 	obtain
actual 	notice within 	the 	statutorily
prescribed 	period 	that 	a 	request 	for 	trial
had been 	filed. 	It 	is 	possible 	the 	result
in Dobrick might 	have 	been different 	had 	the
adverse party obtained 	actual 	notice. 	(Cf.
Dobrick, 	supra, 	160 Cal.App.3d at p. 	923).
The 	court 	in Dobrick 	seemed willing 	to
accept 	the notion that 	in 	a 	proper 	case 	the
doctrine of 	"substantial 	compliance" 	might
apply but 	declined 	to 	apply 	it 	in 	that 	case
because, 	as it stated, 	"notice is an
essential 	element 	of 	substantial 	compliance"
and 	the 	plaintiff 	obtained 	no 	notice,
(id.) 	Here, 	of course, 	defendants did get
actual 	notice within 	the 	statutory time 	that
the 	request 	for 	trial 	had 	been 	filled.
However, 	we emphasize 	that 	this 	decision 	is 	restricted 	to
facts 	as 	they 	appear 	in 	the 	record 	and 	should 	not 	be 	construed
as 	an 	indication 	that 	this 	Board will 	readily excuse 	a 	failure
to 	abide by duly-promulgated 	regulations. 	Furthermore, 	though
there 	is 	no 	indication 	in 	the 	record 	that 	SEIU's 	filing 	of 	an
inaccurate proof 	of 	service was willful, 	nor was 	there 	any
plausible motive under 	the 	circumstances 	for 	SEIU to 	have
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willfully delayed 	service, 	we must 	stress 	that 	PERB 	requires
that 	proof 	of 	service 	forms 	be 	completed 	under 	penalty of
perjury. 	PERB Regulation 32140(a). 	Though the 	record 	reveals
no 	evidence 	of 	fraud, 	the Board will 	closely scrutinize 	future
filings 	by SEIU to 	ensure 	that 	it 	has 	strictly complied with
our 	regulations.
ORDER
The 	Regional 	Director's 	administrative 	decision 	finding 	the
decertification petition filed by Local 	660, 	SEIU, 	AFL-CIO to
be 	timely 	is 	hereby AFFIRMED 	and 	the Regional 	Director 	is
ORDERED 	to 	take 	appropriate 	action 	consistent with 	this
Decision.
Member 	Porter's 	concurring opinion begins 	on p. 	5.
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Porter, 	Member concurring: 	I concur 	in 	the 	results 	reached
by the majority, 	but 	for 	different 	reasons. 	For 	the 	reasons 	set
forth below, 	I conclude 	that 	the 	filing 	in 	this 	case 	was
complete 	as of 	the 	date 	the 	other parties 	to the action were
served with 	the petition, 	which was 	after 	the 	tentative
agreement was 	reached. 	However, 	I 	find 	that 	it 	was 	nevertheless
timely, 	since 	a 	collective bargaining agreement must be 	in
effect 	to operate as a bar 	to a 	decertification petition. 	In
this 	case, 	since 	the adoption 	of 	the 	agreement by the 	school
board 	placing 	the 	agreement 	in 	effect 	apparently 	occurred 	after
the 	effective 	filing of 	the petition, 	the petition 	was 	timely.
One 	day before 	CSEA 	and 	the 	District 	reached 	tentative
agreement 	on 	a 	successor 	contract, 	SEIU 	filed 	its
decertification petition, 	along with 	a 	proof of 	service
indicating 	that 	the 	opposing parties 	were 	served 	concurrently
with 	the 	filing, 	or at 	least on 	the 	same day. 	On 	its 	face,
then, 	the petition 	met 	PERB's 	filing 	requirements 	and was
"accepted" 	for 	filing on 	the 	date 	delivered 	to 	the 	regional
office. 	However, 	SEIU readily concedes 	that, 	for whatever
reason, 	the proof of 	service was 	false, 	notwithstanding that 	it
was 	signed 	under penalty of perjury. 	The petition was 	not, 	in
fact, 	served on 	the 	other parties 	until 	at 	least 	two days
later. 	This 	was 	after 	the 	tentative 	agreement was 	reached, 	and
apparently before 	the 	school 	board 	acted 	to 	adopt 	the 	tentative
agreement. 	It 	is 	clear 	that 	SEIU did 	not 	comply with our
regulation 	requiring 	concurrent 	service. 	(Sec. 	32140(b).)
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The 	issue 	is, 	what 	is 	the 	legal 	effect of 	such 	failure 	to
comply, 	given 	that 	the 	District 	and 	CSEA 	reached 	tentative
agreement 	the 	following 	day?
The 	Board's 	proof 	of 	service 	requirements 	are 	modeled 	after
the 	service 	requirements 	of 	California 	Code 	of 	Civil 	Procedure
and:
are 	designed 	to 	inform 	the 	Board 	that 	all
parties 	to a 	proceeding 	received 	all
documents 	filed before 	or by 	the 	Board
regarding that case. 	M. 	Lowenstein & Sons,
Inc. 	v. 	Superior Court 	(1978) 	80 Cal.App.3d
762, 	770, 	145 Cal.Rptr. 814. 	The Board's
jurisdiction 	to hear 	an 	appeal 	depends 	on
the 	fact 	of 	service 	rather 	than 	the proof
thereof. 	Herman v. 	Santee 	(1894)
103 Cal.519, 	523, 	37 P. 509.1
(Los Angeles 	Community 	College 	District
(1980) 	PERB Decision No. 	153 at p. 	2.)
In Los Angeles CCD, 	supra, 	the Board rejected the, petitioner's
claim 	that 	a dismissal 	letter 	was 	ineffective 	in 	that 	it 	failed
to 	include 	a 	proof 	of 	service 	as 	required by PERB's
regulations. 	The Board 	found 	that 	the petitioner was, 	in 	fact,
served with 	the 	dismissal 	letter 	and, 	therefore, 	failure 	to
attach 	a proof of 	service 	was 	a 	nonfatal 	defect. 	(See 	also
Los Angeles 	Unified 	School 	District 	(1980) 	PERB 	Decision
No. 	152; 	Los Angeles Community College District 	(1981) 	PERB
Decision No. 	186.) 	In contrast to these 	cases, 	in which the
complaining party was 	in 	fact 	served, 	is 	the Board's 	decision
in Los Angeles 	Community College 	District 	(1984) 	PERB Decision
1Accord, 	Oats v. 	Oats 	(1983) 	148 Cal.App.3d 416, 	420
[196 Cal.Rptr. 20].
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No. 	395. 	In that case, 	the charging party's charges against
the 	union 	and 	the 	district 	were 	both 	dismissed 	for 	failure 	to
state a 	prima 	facie 	case. 	Charging party appealed, 	but 	failed
to 	serve his 	appeal 	on 	the 	opposing parties 	or 	to 	file 	a proof
of 	service. 	The 	appeals 	were 	rejected by the 	executive
director 	based 	on 	failure 	to 	serve 	the 	other parties 	to 	the
action. 	The 	executive 	director's 	decision 	rejecting 	the
appeals 	was 	then 	appealed 	to 	the 	Board, 	but 	charging party
again 	failed 	to 	serve 	that 	appeal 	on 	the 	opposing parties. 	He
did 	file 	a proof of 	service, 	but 	it did 	not 	indicate 	that
either 	respondent 	was 	served. 	The 	Board 	cited 	Regulation
section 	32635, 	saying that 	along with 	the 	filing of 	the appeal,
"[S]ervice 	and proof 	of 	service 	of 	the
appeal 	on 	the 	respondent pursuant 	to 	section
32140 	are 	required." 	These 	requirements 	are
not 	merely 	ritualistic. 	They are basic 	to
providing 	due process 	to 	the 	involved
parties. 	. 	. 	. 	Failure to follow the
service 	and 	proof 	of 	service 	requirements 	is
sufficient ground 	for denying an 	appeal, 	and
the 	Executive 	Director 	properly 	rejected
McConnell's 	appeals.
(Los Angeles 	Community 	College 	District
(1984) 	PERB Decision No. 	395 at pp. 	5, 	6.)
The 	above 	cases 	reflect 	the 	Board's 	well-established 	position
that 	the 	lack 	of a proof 	of 	service 	will 	not 	operate 	to defeat
an 	otherwise 	effective 	filing 	or 	compliance 	with 	the 	Board's
regulations, 	but where 	no 	service occurs, 	an appeal 	must be
rejected. 	See 	also 	Riverside 	Unified 	School 	District 	(1986)
PERB 	Decision No. 	592, 	in 	which 	the Board 	rejected the 	argument
that 	a 	proof of 	service 	with 	an 	erroneous 	date 	should 	result 	in
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exclusion of 	the 	district's brief, 	which 	was 	otherwise 	timely
filed 	and 	served.
In Lake Elsinore 	School 	District 	(1986) 	PERB Order
No. Ad-154, 	the Board 	found that 	Code of 	Civil 	Procedure
section 	1013 	applies 	to PERB and EERA. 	In 	so holding, 	the
Board 	states 	that 	section 	1013 	has 	been 	found 	specifically
applicable 	to actions, 	decisions 	and orders 	of 	administrative
agencies, 	where 	the prescribed period 	of 	appeal 	runs 	from 	the
service 	of 	the 	administrative 	document 	and 	the 	agency effects
service by mail. 	Thus, 	the Board 	ruled 	that 	section 	1013's
five 	day extension 	of 	time 	to 	respond 	to a 	document 	served by
mail 	applies 	to 	PERB proceedings, 	and 	overruled precedent 	to
the 	contrary. 	(See 	also Los Angeles 	Unified School 	District
(1986) 	PERB Order No. Ad-155.) 	Given 	this holding by the
Board, 	it 	is 	instructive 	to look at 	court 	cases 	decided under
the 	Code 	of 	Civil 	Procedure 	for 	direction 	in 	this 	case.
To begin with, 	section 	1012 authorizes 	service by mail, 	as
a 	substitute 	for personal 	service. 	Section 	1013 	specifies 	the
requirements 	for 	such 	service, 	and 	section 	1013a 	sets 	forth 	the
specifications 	for 	the proof of 	service.
In 	order 	to 	find 	legal 	notice, 	courts 	require 	service of
process, 	and 	judicial 	action without 	that 	service 	is 	void.
Thus, 	in City of Los Angeles v. 	Morgan 	(1951) 	105 Cal.App.2d
726 	[234 Cal.Rptr. 	319] 	the court 	found that a personal
judgment 	rendered without 	service 	of process 	on, 	or 	legal
notice to, 	a defendant 	is 	not merely voidable, 	but void, 	in 	the
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absence of 	a 	voluntary appearance 	or 	waiver. 	In 	finding 	the
judgment 	in 	the 	case 	to have 	no 	legal 	effect, 	even 	though
recorded, 	the 	court made the 	following statements:
A sworn 	return 	of 	service 	of 	a 	summons 	may
be 	impeached by 	evidence 	that 	contradicts
it. 	"It has 	long been 	established 	that 	a
false 	affidavit 	of 	service 	constitutes
extrinsic 	fraud." 	[Citation.] 	The 	rule 	is
equally well-established 	that 	in 	the 	absence
of 	service 	of process 	upon 	such 	a party
there 	is 	no duty on his part, 	even 	though he
has 	actual 	knowledge, 	to take any
affirmative 	action 	at 	any 	time 	thereafter 	to
preserve his 	right 	to 	challenge 	the
judgment. 	"What 	is 	initially void 	is 	ever
void 	and 	life 	may not 	be breathed 	into 	it by
lapse of 	time."
(City of Los Angeles v. 	Morgan, 	supra,
105 Cal.App.2d 	at p. 	73177
In Oats v. 	Oats 	(1983) 	148 Cal.App.3d 416 	[196 Cal.Rptr.
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20], 	the 	court held 	that 	the 	requirement of 	notice 	is 	so
fundamental 	to concepts 	of due process 	that 	it 	is 	deemed
jurisdictional 	in nature. 	In court proceedings, 	it 	is provided
by 	service 	of process 	and 	it 	is 	the 	actual 	service which 	vests
the 	court 	with 	jurisdiction 	to act, 	rather 	than proof 	of
service. 	Hence, 	when the proof of service 	is mislaid, 	lost or
otherwise 	unavailable, 	some 	courts have been 	liberal 	in
allowing proof 	of 	actual 	service. 	The 	court 	goes 	on 	to 	say
that 	the 	proof 	of 	service 	fulfills 	the 	function 	of 	establishing
that 	procedures 	implementing 	constitutional 	requirements 	of 	due
process 	were 	followed, 	giving 	assurance 	that 	service 	really had
been made. 	Accordingly, 	when 	adequate proof of 	service 	is
available, 	it 	is 	of 	no legal 	import 	that 	a party actually may
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not have 	received 	service. 	That being 	the 	case, 	the 	courts 	are
very 	strict 	in 	applying 	the 	statutory 	standards 	for 	the proof
of 	service; 	failure 	to 	strictly comply with 	those 	standards
deprives 	the 	court 	of 	jurisdiction 	to act.
Similarly, 	in M. 	Lowenstein & Sons, 	Inc. 	v. 	Superior Court
(1978) 	80 Cal.App.3d 	762 	[145 Cal.Rptr. 	814] 	the court 	stated
that 	the 	proof 	of 	service 	is 	required 	to 	inform 	the 	court 	that
a 	defendant has 	received 	the 	necessary 	notice, 	and 	such proof
presumptively establishes 	the 	fact of proper 	service, 	but 	it
may be 	impeached 	and 	the 	lack 	of 	proper 	service 	shown 	by
contradictory 	evidence. 	"Jurisdiction 	depends 	on 	the 	fact 	of
service, 	rather 	than 	the proof 	thereof." 	(Id. 	at p. 	770,
emphasis 	in 	the 	original.)2
Cases 	have 	consistently held 	that 	effective 	service 	of
process 	by mail 	requires 	strict 	compliance 	with 	the 	terms 	of
sections 	1013 	and 	1013a. 	For example, 	the court 	in Dobrick 	v.
Hathaway 	(1984) 	160 Cal.App.3d 913 	[207 Cal.Rptr. 	50] held that
strict 	compliance 	is 	required 	and 	failure 	to comply deprives
the 	court of 	jurisdiction. 	The 	case 	involved 	the 	effect 	of 	an
Iarbitration 	award 	and 	whether 	the 	nonprevailing party had
effectively blocked 	the 	finality of 	the 	award by 	filing 	a
request 	for 	a 	trial 	de 	novo. 	The moving party 	in 	the 	case 	(who
2Disapproved 	on 	other 	grounds 	in 	Johnson 	& 	Johnson 	v.
Superior Court 	(1985) 	38 Cal.3d 243, 	255, 	fn. 	7 	[211 Cal.Rptr.
517; 	695 P.2d 	1058]. 	(See Courtney v. 	Abex 	Corporation 	(1986)
176 Cal.App.3d 343, 	346-347 	[221 	Cal.Rptr. 	770].)
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filed 	a 	motion 	to 	confirm 	and 	enter 	the 	arbitration 	award 	as 	a
final 	judgment) 	claimed 	that he was 	not 	served with 	the 	request
for 	the 	trial 	de 	novo and did not, 	in 	fact, 	learn of 	it until
after 	the 	statutory 	period had 	run.
The 	court 	found 	that 	effective 	service 	of process by mail
requires 	strict 	compliance 	not 	only with 	section 	1013, 	but 	also
with 	section 	1013a. 	Failure 	to comply deprives 	the 	court 	of
jurisdiction. 	The 	court 	found 	that 	no proof 	of 	service 	was
filed 	with 	the 	court 	and 	the 	affidavits 	that 	were 	filed 	in 	an
attempt 	to prove 	service 	were 	defective 	and 	did 	not 	cure 	the
problem, 	since 	the 	first 	failed 	to 	comply with 	the 	requirement
of 	showing 	the 	address 	to which 	the 	request 	was 	sent, 	and 	the
second 	was 	untimely 	and 	failed 	to 	indicate how 	the 	affiant 	knew
the 	address 	eleven 	months 	after 	the 	alleged 	service.
The 	court 	went 	on 	to 	question 	the 	effect of 	the 	lack of
proper proof of 	service, 	and 	concluded 	that 	the 	filing of 	the
request 	for a 	trial 	de novo was 	ineffective; 	thus, 	the
arbitration 	award became 	final 	as 	a matter of 	law. 	In 	so
holding, 	the 	court 	emphasized 	that 	notice 	and 	opportunity 	to be
heard 	are 	the 	most basic 	and 	crucial 	elements 	of due process,
and 	the 	rule 	of 	court 	which 	required 	the 	concurrent 	filing 	of
the 	proof 	of 	service 	with 	the 	filing 	of 	the 	document 	itself
provided 	an 	essential 	rule 	of practice 	and procedure. 	The
court 	rejected 	the 	respondent's 	argument 	that 	he had
substantially 	complied 	with 	the 	requirements 	of 	the 	request,
since 	notice 	is 	an 	essential 	element 	of 	substantial 	compliance.
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The 	respondent 	next 	argued 	that 	the 	movant had 	actual
knowledge 	of 	the 	request 	within 	a 	few weeks 	of 	the 	filing. 	The
court 	likewise 	rejected 	this 	argument, 	since 	the 	requirements
are 	that 	the proof 	of 	service 	be 	filed, 	the 	filing be 	within 	20
days 	of 	issuance of 	the 	arbitrator's 	decision, 	and 	the 	time
cannot be 	extended. 	Further, 	the 	court 	found 	that 	there was 	no
competent 	evidence 	that 	the 	opposing 	party 	learned 	of 	the
request 	within 	the 	20-day period.
The 	Dobrick 	decision 	was 	factually 	distinguished 	in Lum 	v.
Mission 	Inn Foundation, 	Inc. 	(1986) 	180 Cal.App.3d 967
[226 Cal.Rptr. 	22]. 	Lum 	involved the 	same procedure at
issue 	in 	Dobrick 	of 	requesting a 	trial 	de 	novo 	following
arbitration. 	In Lum, 	plaintiffs 	filed their request 	for a
trial 	de 	novo 	shortly after 	the 	arbitration 	award 	was 	served
and 	well 	within 	the 	statutory 	time 	for 	filing 	such 	requests,
but 	neglected 	to 	serve 	a 	copy 	of 	the 	request 	on 	the
defendants. 	Plaintiffs 	likewise 	did not 	file a proof of
service 	with 	the 	filing of 	their 	request. 	Nonetheless, 	within
the 	twenty-day period, 	defendants' 	counsel 	received actual
notice 	when 	the 	court 	clerk 	sent 	the 	counsel 	a 	notice 	of 	trial
setting 	conference. 	The 	counsel 	then 	called 	the 	clerk 	and
learned 	the 	request 	had been 	filed. 	The 	lower 	court 	dismissed
the 	request, 	which 	decision was 	then appealed. 	On appeal 	the
court 	held 	that 	the 	request 	for 	trial 	de 	novo 	should 	not 	have
been 	dismissed by the 	lower 	court, 	since 	the 	defendants
received 	actual 	notice within 	the prescribed 	time period. 	In
-
12

reaching 	that holding, 	the 	court 	concluded 	that 	the 	Judicial
Council 	is 	not 	"empowered 	to 	or 	intended 	to 	impose 	on 	litigants
a 	jurisdictional 	prerequisite 	to obtaining a 	trial 	de 	novo
which was 	not prescribed by 	the 	Legislature 	itself." 	(Id. 	at
p. 	970.) 	In 	deciding what 	result 	should 	flow 	from plaintiffs'
omission 	of 	service, 	the 	court 	considered 	the purpose 	of 	the
proof 	of 	service 	requirement, 	whether 	or 	not 	that 	purpose 	was
fulfilled by defendants' 	obtaining 	actual 	notice 	within 	the
time 	period, 	and 	the 	"nature 	and 	significance of 	the 	rights
that 	would be 	lost 	as 	a 	result 	of 	the 	clerical-type 	error."
(Id. 	at p. 	972.) 	The court 	addressed the 	last 	consideration
first 	and 	found 	that 	the 	right 	that 	would be 	lost 	was 	the
statutory and 	constitutional 	right 	to a 	jury trial, 	and 	that
access 	to the courts 	is 	a 	right of a 	fundamental 	nature. 	The
court 	stated:
[T]he 	admirable 	objective 	of 	establishing 	a
preliminary 	"simplified 	and 	economical
procedure 	for 	obtaining prompt 	and 	equitable
resolution" of disputes 	(sec. 	1141.10,
subd.(b)(l)) 	was 	obviously not 	intended 	to
supplant the right, 	ultimately, 	to have
disputes 	resolved by the courts. 	. 	. 	.
Manifestly, 	the 	important 	rights 	of access
to the 	courts, 	jury 	trial 	and appeal 	should
not be 	lost 	as 	a 	result of 	clerical-like
errors 	in 	complying 	with procedural
requirements, 	unless that result 	is
absolutely 	compelled.
(Id. at pp. 	971-972.)
-
The 	court 	next 	found 	that 	the purpose 	of 	the proof 	of
service 	requirement 	in 	1616(a) 	is 	to give 	notice 	to the 	adverse
parties 	so 	that 	they will 	not 	rely 	on 	the 	arbitration 	award.
13

The 	court 	is 	notified by the 	filing of 	the 	request. 	The 	court
found 	that 	both 	of 	those 	purposes 	were 	fulfilled 	on 	the 	facts 	in
that 	case, 	since both the 	filing and 	the 	actual 	notice 	to
defendants 	were 	within 	the 	statutory 	time 	frame.
In 	the 	case before 	us, 	the 	majority 	relies 	on 	the 	fact 	that
the 	district 	and 	the 	union had 	actual 	knowledge 	of 	the 	filing
prior 	to 	reaching an 	agreement, 	and 	therefore 	there 	is 	no
prejudice 	in 	finding 	the 	filing 	to be 	timely. 	Court 	decisions
have held, 	however, 	that 	actual 	knowledge 	does 	not 	take 	the
place 	of 	legal 	notice 	requirements.33 	Ursino v. 	Superior 	Court
(1974) 	39 Cal.App.3d 611, 	617 	[114 Cal.Rptr. 	404] held that the
constitutional 	guarantee 	of 	due 	process 	requires 	that 	proper
notice be 	given 	to a 	party, 	and 	that 	this 	requirement 	is 	not
satisfied 	by 	actual 	knowledge 	without 	notification 	conforming 	to
the 	statutory requirements. 	In 	County of Alameda 	v. 	Lackner
(1978) 	79 Cal.App.3d 	274, 	280 	[144 Cal.Rptr. 	840] the court
stated:
It 	is 	well 	established 	that 	administrative
regulations 	must 	conform 	to 	applicable
legislative provisions, 	and 	that 	an
administrative 	agency has 	no 	discretion 	to
exceed 	the 	authority 	conferred 	upon 	it 	by
3Lum 	did 	not 	address, 	nor 	distinguish, 	prior 	cases 	that
have held 	that 	actual 	knowledge 	does 	not 	take 	the place 	of 	the
legal 	notice 	requirement. 	Based 	on 	Lum'S 	analysis 	of 	the
service 	requirement 	involved, 	however, 	it 	is 	clear that 	the
court 	in 	Lum did 	not 	consider 	the 	service 	requirement 	in 	rule
1616(a), 	enacted by the Judicial 	Council, 	to constitute a
jurisdictional 	requirement, 	where 	the 	right 	that 	would be 	lost
was 	the 	right 	of 	access 	to 	the 	courts 	and 	the 	defendant had
actual 	knowledge 	within 	the 	statutorily prescribed 	time 	period.
14

statute. . . .
We 	said 	in Ursino v. 	Superior 	Court 	[1974]
39 Cal.App.3d 611, 	617 [114 Cal.Rptr. 	404],
that 	a 	requirement 	that 	a 	statutory 	notice
be 	given 	"is 	not 	satisfied 	by 	actual
knowledge 	without 	notification 	conforming 	to
the 	statutory 	requirements."
Reliance by 	the 	regional 	director 	in 	this 	case 	on United
Farm Workers 	of America 	v. 	ALRB 	(1985) 	37 Cal.3d 	912
[210 Cal.Rptr. 	453; 	694 P.2d 138] 	is misplaced. 	The 	facts of
that 	case 	reveal 	that 	the 	issue 	did 	not 	involve 	the 	service 	of 	a
document on opposing parties, 	but 	instead, 	a 	failure 	to verify a
pleading 	that 	was 	timely 	filed 	with 	the 	court. 	The 	clerk had
returned 	the 	document 	after 	appellant 	attempted 	to 	file 	it,
saying 	it 	lacked 	a 	table 	of authorities. 	Appellant pointed out
that 	the 	rule 	governing ALRB appeals 	does 	not 	require 	the 	filing
of 	the 	table 	of 	authorities. 	The clerk 	then 	noted 	that 	that
rule does 	require verification, 	which was 	lacking. 	Appellant
verified 	it 	and 	sent 	it back 	to the court, 	but 	it was 	received
four 	days 	after 	the 	filing 	deadline. 	The 	court 	nevertheless
found 	it 	to be 	timely on 	the 	ground 	that 	it 	was 	timely when 	it
was 	first 	filed, 	even 	though 	it 	contained a 	"technical 	defect."
Contrary 	to that 	case, 	however, 	lack of 	service has 	not been
held 	to be 	a 	"technical 	defect." 	(See 	also North 	Side 	Property
Owners Association 	v. 	County of Los Angeles 	(1945) 	70 Cal.App.2d
598 	[161 	P.2d 613]; 	cf. 	Lum v. Mission 	Inn Foundation, 	Inc.,
supra, 	180 Cal.App.3d 	967.)
15
• 	• 	• 	• 	• 	• 	• 	•

Applying 	the 	above 	case 	law and 	PERB precedent 	to 	the 	facts
of 	this 	case 	leads 	me 	to 	the 	following 	conclusions. 	While 	SEIU
facially complied with our 	regulations, 	the 	fact 	remains 	that
the 	actual 	service 	of 	notice 	was 	not 	accomplished 	until 	several
days 	later. 	If 	this 	were 	a 	scenario of a party 	failing 	to 	file
the 	proof 	of 	service 	with 	the 	document 	to be 	filed, 	even 	though
actual 	service 	of 	notice had 	occurred, 	we 	could 	accept 	a 	late
filing 	of 	the proof 	of 	service 	and 	find 	the 	filing 	effective 	as
of 	the 	date of 	the 	filing of 	the 	document 	itself,
notwithstanding 	a 	technical 	failure 	to 	comply with 	our
regulations.4 That, 	however, 	is not the case before us. 	The
filing of 	the 	petition 	for 	decertification 	is 	akin 	to 	the
initial 	service 	of process or notice, 	in 	that 	it 	initiates 	an
action 	with parties 	who 	are 	not 	otherwise 	before 	this 	agency,
and 	which 	may 	ultimately 	affect 	their 	respective 	positions. 	As
such, 	knowledge 	alone 	should 	not 	suffice 	and 	actual 	service 	of
the 	documents 	should 	be 	required 	in 	compliance 	with 	our
regulations. 	I do not 	find 	that 	the opposing parties' 	actual
knowledge 	cured 	SEIU's 	failure 	to 	comply 	with 	the 	service
requirement. 	Once 	the 	actual 	service 	of 	notice 	was 	effectuated
by depositing 	the documents 	in 	the mail, 	SEIU 	should have 	filed
an 	amended proof 	of 	service 	to 	reflect 	the 	date 	of 	actual
4Regulation 	32140 	sets 	out 	the 	proof 	of 	service
requirements 	and 	requires 	that, 	whenever 	service 	is 	required 	in
our 	regulations, 	it 	shall 	be on 	all 	parties 	and 	shall 	be
concurrent 	with 	the 	filing.
16

service. 	The failure to do so is not, 	in my mind, 	fatal, 	since
it 	is 	the 	fact 	of 	actual 	service 	to which we 	should 	look.
I 	conclude 	that 	the 	filing 	was 	not 	effectuated 	until 	actual
service 	of 	notice 	occurred, 	and 	that 	was 	after 	the 	parties
reached 	tentative 	agreement.
Under 	existing 	Board 	precedent 	with 	respect 	to 	contract
bar, 	then, 	the existence of 	that agreement 	should have operated
as 	a 	bar 	to the 	filing of 	the 	decertification petition. 	(See,
e.g., 	San Francisco Unified 	School 	District 	(1984) 	PERB
Decision 	No. 	476.) 	I do 	not 	agree 	with 	the Board's holding 	in
San 	Francisco.
This 	Board 	is 	charged 	with 	the 	administration 	of 	a 	specific
statutory contract bar provision 	(Gov. 	Code, 	sec. 	3544.7(b))
that 	states:
[n]o 	election 	shall 	be held 	and 	the petition
shall 	be 	dismissed 	whenever:
(1) 	There 	is currently in effect a_ lawful
written 	agreement 	negotiated by 	the 	public
school 	employer 	and 	another 	employee
organization 	. . . .
A tentative 	agreement does 	not, 	in my opinion, 	meet 	this
description, 	as 	it 	is 	not 	"currently 	in effect" 	and does 	not
and 	cannot 	impose 	a 	lawful 	obligation 	on 	the 	District 	until
duly 	adopted 	by 	the 	governing 	board.55
The 	Education 	Code 	specifically 	requires 	school 	board
action 	to 	create 	a 	binding 	and 	enforceable 	collective
5Accordingly, 	I would 	overrule 	San 	Francisco 	to 	the
extent 	it 	is 	inconsistent.
17

bargaining 	agreement.
Education 	Code 	section 	35163 	states:
Every 	official 	action 	taken by 	the 	governing
board 	of 	every 	school 	district 	shall 	be
affirmed by a 	formal 	vote 	of 	the 	members 	of
the board, 	and 	the governing board 	of 	every
school 	district 	shall 	keep minutes 	of 	its
meetings, 	and shall 	maintain a 	journal 	of
its 	proceedings 	in which 	shall 	be 	recorded
every 	official 	act 	taken.
Section 	35164 	states, 	"[t]he 	governing board 	shall 	act by
majority 	vote 	of 	all 	of 	the 	membership 	constituting 	the
governing board." 	Section 	35035 	sets 	forth 	some 	of 	the 	duties
and powers 	of 	the 	district 	superintendent, 	and 	subsection 	(f)
grants 	the 	superintendent 	the 	power 	to 	enter 	into 	contracts 	for
and 	on 	behalf 	of 	the 	district 	pursuant 	to 	Section 	39656.
Section 	39656 	provides 	that 	whenever 	the 	power 	to 	contract 	is
invested 	in 	the governing board 	of 	the 	school 	district, 	such
power may, 	by a 	majority vote of 	the board, 	be 	delegated 	to 	its
district 	superintendent, 	or 	to such persons 	as he may
designate, 	and goes on to state:
. 	. 	. provided, however, 	that no contract
made 	pursuant 	to 	such 	delegation 	and
authorization 	shall 	be 	valid 	or 	constitute
an 	enforceable 	obligation 	against 	the
district 	unless 	and 	until 	the 	same 	shall
have 	been 	approved 	or 	ratified by 	the
governing board, 	said 	approval 	or
ratification 	to be 	evidenced by 	a 	motion 	of
said 	board 	duly passed 	and 	adopted.
The 	result 	of 	these 	various 	statutes 	is 	clear—no 	contract
is 	enforceable 	against 	the 	district 	unless 	and 	until 	the board
has 	taken 	official 	action 	to adopt 	such 	contract 	in 	the 	duly
18

authorized 	manner, 	i.e., 	by majority vote 	at a 	lawfully called
board meeting. 	Very 	simply, 	what would be 	the outcome, 	under
existing precedent, 	if 	the parties 	reached a 	tentative
agreement, 	which 	the 	Board 	would hold barred 	the
decertification 	petition, 	and 	then 	the 	school 	board 	rejected
that 	tentative 	agreement?
For 	the 	reasons 	stated 	above, 	I would 	find 	that 	a
collective bargaining agreement 	is 	not 	"in 	effect" 	until
adopted by the 	employer-school 	district, 	and 	the 	absence 	of
such 	adoption 	defeats 	the 	tentative 	agreement 	from 	acting 	to
bar 	a 	decertification petition. 	(Cf. 	State 	of 	California
(SETC) 	(1983) 	PERB Decision No. 	348-S 	[union ratification 	not
required 	for 	a 	tentative 	agreement 	to bar 	the 	filing of 	a
severance 	petition, 	notwithstanding 	that 	ratification 	was
required by the union's 	by-laws]; 	Downey Unified 	School
District 	(1980) 	PERB Order No. Ad-97 	[where ground 	rules
required 	ratification 	before 	agreement 	would be 	effective,
unratified 	tentative 	agreement 	did 	not bar 	the 	filing of 	a
decertification petition].) 	Therefore, 	in this case, 	I would
find 	that 	the 	decertification 	petition 	should be 	accepted 	for
filing as 	of 	the date of actual 	service, 	and SEIU 	should be
directed 	to 	file 	an amended proof of 	service.6	
C
6I 	would 	also 	direct 	the 	General 	Counsel 	to 	conduct 	an
investigation to determine what, 	if any, 	action 	is appropriate
to 	take 	against 	SEIU 	for 	the 	filing 	of 	a 	fraudulent proof 	of
service, 	which was 	signed 	under penalty of 	perjury.
19

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SANTA 	MONICA-MALIBU 	UNIFIED 	SCHOOL
DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES 	ASSOCIATION
AND 	ITS 	CHAPTER 	#227,
Exclusive 	Representative,
and,
LOCAL 660, SEIU, AFL-CIO,
Petitioner.
)
)
)
) 	Case 	No. 	LA-D-200
(R-861C)	)
)
)
) 	ORDER FINDING
DECERTIFICATION
PETITION TO BE
TIMELY FILED
)
)
)
)
)
) 	December 	9, 	1986
)
)
)
BACKGROUND
California 	School 	Employees 	Association 	and 	its 	Chapter
#227 	(CSEA) 	is 	the 	exclusive 	representative 	of a unit of
paraprofessional 	employees 	at 	Santa 	Monica-Malibu 	Unified
School District 	(District). 	The 	District and CSEA were parties
to 	a written 	agreement which expired June 	30, 	1986. 	(All dates
refer 	to 	1986.) 	They continued 	negotiating 	the 	terms of 	a new
agreement 	until 	approximately 	11:00 	a.m., 	September 	23, 	at
which 	time 	the 	chief 	negotiators 	for 	the 	parties 	initialed 	a
written 	agreement 	which 	provided 	for 	a 	contract 	retroactive 	to
July 1, 	1986 	and 	running 	through June 	30, 	1989.
At 	3:44 p.m. 	on September 	22, 	SEIU 	filed 	a decertification
petition 	at 	the 	PERB 	Los Angeles 	regional 	office. 	The 	petition
was 	accompanied 	by 	authorization 	cards 	and 	a 	proof 	of 	service
__________________ )

. .
by mail 	form 	indicating 	the 	District 	and 	CSEA were 	served 	by
mail 	that 	date. 	SEIU 	later 	informed 	this office 	that 	copies 	of
the petition were 	not 	actually placed 	in 	the mail 	until 	some
date after 	the agreement time of 	11:00 a.m. 	on September 	23.1
Both 	CSEA and 	the 	District 	were 	aware 	that 	a
decertification petition 	had 	been 	filed 	at 	PERB 	prior 	to
signing 	the 	agreement.
On October 	3, 	the District 	supplied 	PERB with 	a 	list 	of
employees 	from 	the preceding 	payroll 	period. 	SEIU demonstrated
the 	requisite 	support 	to 	meet 	the 	requirement 	of 	regulation
32770(b)(2) 	based on that 	list.
ISSUE
Was 	the 	decertification 	petition 	properly 	filed 	by 	SEIU 	on
September 	22, 	and thus 	timely 	filed?
DISCUSSION
Regulation 	32770 	states 	that:
(a) 	A petition for 	an election 	to decertify
an 	existing 	exclusive 	representative 	in 	an
established 	unit 	may 	be 	filed 	by 	a group 	of
employees within 	the 	unit 	or 	an 	employee
organization. 	The 	petition 	shall 	be 	filed
with 	the 	regional 	office 	utilizing 	forms
provided 	by 	the Board.
(b) 	The petition 	shall 	be 	accompanied 	by
1The 	District 	received 	its 	copy 	on September 	26, 	CSEA
received 	its copy 	on September 	29. 	The 	address 	to which SEIU
mailed 	CSEA's 	copy contained 	the 	wrong 	zip 	code.
N
' 	.
1
2

proof 	that at 	least 	30 	percent of 	the
employees 	in 	the 	established 	unit 	either:
(1) 	No 	longer 	desire 	to 	be 	represented 	by
the 	incumbent exclusive 	representative; 	or
(2) 	Wish to be 	represented 	by 	another
employee 	organization.
Proof 	of 	support 	is 	defined 	in Division 	1,
section 	32700 	of 	these 	regulations.
(c) 	Service of the petition, 	excluding 	the
proof of at 	least 	30 percent 	support, 	and
proof 	of 	service 	pursuant 	to 	section 	32140
are 	required.
There 	is 	no dispute 	that 	the 	petition was 	filed on 	forms
provided 	by 	the Board, 	filed 	by 	an 	employee 	organization 	in 	an
established 	unit, 	or 	that adequate proof 	of 	support was
submitted. 	The District and CSEA contend, 	however, 	that SEIU's
failure 	to 	concurrently 	serve 	the 	petition 	should 	be grounds
for 	finding 	that 	the petition was 	untimely 	filed.2
However, 	as 	found below, 	this contention must 	be 	rejected.
The 	California 	Supreme 	Court 	has 	said 	that:
There 	is a 	strong 	public policy 	in 	favor 	of
hearing 	cases 	on 	their 	merits 	and 	against
depriving 	a party 	of 	his 	right 	of 	appeal
because 	of 	technical 	noncompliance 	on
2Regulation 	32140(b) 	reads:
(b) 	Whenever 	"service" 	is 	required by these
regulations, 	service 	shall 	be on all parties
to 	the 	proceeding 	and 	shall 	be 	concurrent
with 	the 	filing 	in question.
W
.
w
'

matters of 	form. 	(United Farm Workers 	v.
Agricultural 	Labor 	Relations 	Board 	(1985)
37 Cal.3d 912, 	916, quoting Litzmann v.
Workmen's 	Compensation Appeals 	Board 	(1968)
266 Cal. 	App.2d 203 	[71 Cal. 	Rptr. 	731].)
The 	UFW 	v. 	ALRB case 	also 	involved 	a 	filing 	problem 	in 	that
verification did 	not accompany the pleadings. 	The 	ALRB 	and 	the
real party 	in 	interest moved 	to dismiss 	the petition 	as
untimely. 	The court of 	appeal agreed, 	and granted 	the motion
to 	dismiss. 	The 	Supreme 	Court 	reversed 	and 	remanded 	the 	case
to 	the 	appellate 	court 	based 	on 	the 	rationale 	that 	"(r)ejection
. 	. 	. 	for 	a technical defect cannot undo a 	'filing' 	that has
already occurred." 	j[d, 	at 	918. 	The court stressed that
-
neither 	party 	against 	whom 	it 	was 	deciding 	had 	contended 	that
it was prejudiced by the 	filing problem at 	issue. 	UFW v. 	ALRB,
op cit., 	at 916.
-
Similarly, 	in the 	instant case, 	neither CSEA nor 	the
District purport 	to 	have 	been prejudiced 	by 	their 	receipt 	of
the 	decertification petition 	subsequent 	to 	their 	agreement 	to 	a
successor 	contract.3 Indeed, 	the 	instant 	administrative
3CSEA cites 	Alum Rock 	Union Elementary 	School 	District
(1986) 	PERB Order No. 	Ad-158 but fails to state, 	nor does the
undersigned 	understand, 	how 	that case 	would 	suggest 	that
finding 	SEIU's petition 	to 	be 	timely would prejudice 	CSEA or
result 	in 	"labor 	relations 	instability" 	as discussed 	in 	that
case. 	It 	is particularly difficult 	to conceive 	of 	prejudice
under 	the 	instant 	facts 	since 	CSEA and 	the 	District 	would
probably 	not 	have 	received 	their 	copies 	of 	the 	petition 	until
after 	11 	a.m. 	on September 	23 had SEIU, 	in fact, 	mailed 	them on
September 	22. 	Moreover, 	CSEA and 	the District were 	already
aware 	that 	the 	petition 	would 	be 	filed.
4

determination 	mandated 	by 	those 	parties' 	Untimeliness
contention confirms 	that 	CSEA and 	the 	District 	have 	been
afforded 	their 	due process. 	Consistent with 	the position 	of
the 	Supreme 	Court, 	the Board 	itself 	has 	refused 	to 	elevate 	form
over 	substance 	with 	respect 	to 	its 	service 	requirements 	where
no 	prejudice 	was 	found. 	See 	Los 	Angeles 	Unified 	School
District 	(1980) 	PERB Decision No. 	152 and Los Angeles 	Community
College District 	(1981) 	PERB Decision No. 	186.
Los Angeles 	Community College 	District 	(1980) 	PERB 	Decision
No. 	153, 	Los Angeles Community College District 	(1983) 	PERB
Decision No. 	309 	and 	Los Angeles Community 	College District
(1983) 	PERB Decision No. 	395, 	cited by the District, 	do not
mandate a different result. 	Similar 	to the 	instant case, 	in
the former 	decision 	(PERB Decision No. 	153) 	no prejudice 	was
found where service was, 	in fact, made, 	though somewhat
improperly 	as 	a matter 	of 	form. 	Due process 	was 	absent 	and 	the
filing 	found 	to 	be 	improper 	in 	the 	clearly 	distinguishable
latter 	two 	cases 	where 	the 	charging 	party never 	served 	the
respondents and, 	thus, 	the other parties were denied 	their
opportunity 	to 	file 	responses.
CONCLUSION
The 	decertification 	petition 	is 	deemed 	to 	be 	timely 	filed.
It 	is 	hereby 	ordered 	that 	an election be conducted 	to 	resolve
the 	question 	concerning 	representation 	created 	by 	SEIU's
5

petition. 	Our 	office 	will 	be contacting 	you 	shortly 	to 	arrange
the details 	of 	that election.
Right of 	Appeal
An 	appeal 	of 	this decision 	to 	the Board 	itself 	may 	be made
within ten 	(10) 	calendar 	days 	following 	the date 	of 	service 	of
this decision 	(PERB 	regulation 	32360). 	To be 	timely 	filed, 	the
original and 	five 	(5) 	copies 	of any appeal must 	be 	filed 	with
the Board 	itself 	at 	the 	following 	address:
Members, 	Public Employment Relations Board
1031 18th Street, 	Suite 	200
Sacramento, 	CA 95814-4174
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 	. . . " 	(regulation 	32135). 	Code 	of 	Civil
Procedure 	section 	1013 	shall 	apply.
The 	appeal 	must 	state 	the 	specific 	issues 	of procedure,
fact, 	law or 	rationale 	that 	are 	appealed and must 	state 	the
grounds 	for 	the 	appeal 	(regulation 	32360(c)). 	An 	appeal 	will
not 	automatically prevent 	the 	Board 	from proceeding 	in 	this
case. 	A party 	seeking 	a 	stay of 	any 	activity may 	file 	such 	a
request with 	its 	administrative 	appeal, 	and must 	include 	all
pertinent 	facts 	and 	justification 	for 	the 	request 	(regulation
32370).
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If 	a 	timely appeal 	is 	filed, 	any other party may 	file 	with
the Board 	an original 	and 	five 	(5) 	copies 	of a 	response 	to 	the
appeal within ten 	(10) 	calendar days 	following 	the 	date 	of
service of 	the appeal 	(regulation 	32375).
Service
All 	documents 	authorized 	to 	be 	filed 	herein 	must 	also 	be
"served" 	upon all parties 	to 	the proceeding 	and 	on 	the 	Los
Angeles 	regional 	office. 	A 	"proof 	of 	service" 	must 	accompany
each copy 	of 	a document 	served 	upon 	a 	party 	or 	filed 	with 	the
Board 	itself 	(see 	regulation 	32140 	for 	the 	required 	contents
and a 	sample 	form). 	The document will 	be considered properly
"served" 	when personally delivered 	or 	deposited 	in 	the
first-class mail 	postage 	paid 	and 	properly 	addressed.
Dated:
Robert R. 	Bergeson
Regional 	Director
7