Newark Unified School District (PERB 1595E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NEWARK TEACHERS ASSOCIATION,
Charging Party,
V.
NEWARK UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-2167-E
PERB Decision No. 	1595
February 	9, 	2004
Appearances: California Teachers Association by Ramon E. Romero, Attorney, for Newark
Teachers Association; Miller Brown & Dannis by Daniel A. Ojeda, Attorney, for Newark
Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION
NEIMA, Member: 	This case is before the Public Employment Relations Board (Board)
on exceptions filed by the Newark Teachers Association (Association) to a proposed decision
(attached) of an administrative law judge (ALJ). The issue before the ALJ was whether an
arbitration decision resolving a dispute between the Association and Newark Unified School
District (District) was repugnant to the Educational Employment Relations Act (EERA)1. The
ALJ found that the arbitration decision was not repugnant to BERA and dismissed the
complaint.
The Board has reviewed the entire record in this matter, including the ALJ' s proposed
decision, the Association's exceptions, and the District's response. 	The Board finds the ALJ's
findings of fact and conclusions of law to be free of prejudicial error and adopts the proposed
decision as the decision of the Board itself.
1EERA is codified at Government Code section 3540 et seq.

2
ORDER
The unfair practice charge in Case No. SF-CE-2167-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Baker and Whitehead joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
NEWARK TEACHERS ASSOCIATION,
UNFAIR PRACTICE
Charging Party, 	CASE NO. SF-CE-2167-E
V . 	PROPOSED DECISION
(4/19/02)
NEWARK UNIFIED SCHOOL DISTRICT,
Respondent.
Appearances: Ramon Romero, Attorney, for Newark Teachers Association; Miller, Brown and
Dannis, by Daniel Ojeda, Attorney, for Newark Unified School District.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
An employee organization contends here that a school district unilaterally changed a
collective bargaining agreement to preclude appealing written reprimands to arbitration, and an
arbitrator's decision that reprimands are not appealable to arbitration is repugnant to the
collective bargaining statute covering teachers. The school district responds that it has made
no unilateral change, and the decision of the arbitrator is neither contrary to the terms of the
agreement nor repugnant to the statute.
The Newark Teachers Association (NTA or Association) commenced this action on
February 7, 2001, by filing an unfair practice charge against the Newark Unified School
District (District). The Office of the General Counsel of the Public Employment Relations
Board (PERB or Board) issued a complaint on March 22, 2001. The complaint contains two
allegations. First, the complaint alleges that the District unilaterally excluded written
reprimands from appeal under the negotiated grievance and arbitration procedures, in violation
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
NEW ARK TEACHERS ASSOCIATION,
Charging Party,
V.
NEWARK UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-2167-E
PROPOSED DECISION
(4/19/02)
Appearances: Ramon Romero, Attorney, for Newark Teachers Association; Miller, Brown and
Dannis, by Daniel Ojeda, Attorney, for Newark Unified School District.
Before Fred D'Orazio, Administrative Law Judge.
PROCEDURAL HISTORY
An employee organization contends here that a school district unilaterally changed a
collective bargaining agreement to preclude appealing written reprimands to arbitration, and an
arbitrator's decision that reprimands are not appealable to arbitration is repugnant to the
collective bargaining statute covering teachers. The school district responds that it has made
no unilateral change, and the decision
of
the arbitrator is neither contrary to the terms
of
the
agreement nor repugnant to the statute.
The Newark Teachers Association (NTA or Association) commenced this action on
February 7, 2001, by filing an unfair practice charge against the Newark Unified School
District (District). The Office
of
the General Counsel
of
the Public Employment Relations
Board (PERB or Board) issued a complaint on March 22, 2001. 	The complaint contains two
allegations. First, the complaint alleges that the District unilaterally excluded written
reprimands from appeal under the negotiated grievance and arbitration' procedures, in violation

of Educational Employment Relations Act (EERA or Act) section 3543.5(a), (b) and (c). 1
Second, the complaint alleges that an arbitrator's decision finding that written reprimands are
not grievable or arbitrable under the collective bargaining agreement is repugnant to the Act
because the issue was not fully and fairly litigated in the arbitration proceeding.2 Also on
1 EERA is codified at Government Code section 3540 et seq. In relevant part,
section 3543.5 provides as follows.
It shall be unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
2 Section 3541.5(a)(2) provides in relevant part:
(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following:
(2) Issue a complaint against conduct also prohibited by the
provisions of the agreement between the parties until the
grievance machinery of the agreement, if it exists and covers the
matter at issue, has been exhausted, either by settlement or
binding arbitration. However, when the charging party
demonstrates that resort to contract grievance procedure would be
futile, exhaustion shall not be necessary. 	The board shall have
discretionary jurisdiction to review the settlement or arbitration
award reached pursuant to the grievance machinery solely for the
purpose of determining whether it is repugnant to the purposes of
this chapter. If the board finds that the settlement or arbitration
award is repugnant to the purposes of this chapter, it shall issue a
2

March 22, 2001, the regional attorney denied the District's request to defer to the arbitration
award.
complaint on the basis of a timely filed charge, and hear and
decide the case on the merits. 	Otherwise, it shall dismiss the
charge.
The District answered the complaint on April 23, 2001, generally denying all
allegations and asserting a number
of
affirmative defenses. 	Denials and defenses will
be
addressed below, as necessary.
A settlement conference was conducted by a PERB agent on May 4, 2001, but the
dispute was not resolved.
Prehearing conferences were conducted on September 24 and October 15, 2001, and a
formal hearing was held by the undersigned in Oakland on October 18, 2001. 	With the receipt
of
the final brief on February 28, 2002, the matter was submitted for decision.
FINDINGS OF FACT
The Association is an employee organization, as defined in section 3540.1 (d), and the
exclusive representative
of
a unit
of
the District's certificated employees, as defined in section
3540.l(e). The District is a public school employer under section 3540.l(k). 	At the time
of
the events at issue here, the Association and the District were parties to a collective bargaining
agreement (CBA) which contains a grievance procedure that culminates in binding arbitration.
At all relevant times, Mary Lotz (Lotz) was a teacher at the District's Bunker
Elementary School. 	On or about June 2, 1999, Principal Kimberly Ortiz (Ortiz) issued her a
"Notice
of
Unprofessional Conduct" criticizing her performance. In brief, Lotz was criticized
for medically diagnosing a student as having a learning disability, refusing to allow students to
participate in a field trip, and engaging in confrontational behavior with colleagues, students
3

and others. The notice was issued pursuant to Education Code section 44938, which provides
that a Notice
of
Unprofessional Conduct is a preliminary requirement that must be completed
before a district can initiate dismissal proceedings against a teacher. 	The notice itself
if
not
considered discipline under section 44938, but rather is a statutory prerequisite for dismissal.
A dispute quickly arose about whether the notice is a statutory Notice
of
Unprofessional
Conduct or discipline under the CBA.
Article 17
of
the CBA is titled "intermediate discipline." In brief, it contains a "just
cause" provision, defines the various types
of
intermediate discipline, incorporates the concept
of
progressive discipline, and sets forth appeal procedures for intermediate discipline.
Section 17.1.1 states that Article
17
is not the exclusive procedure for intermediate discipline:
Intermediate discipline under these provisions shall not be
exclusive but shall be in addition to those disciplinary actions
permitted under the California Education Code.
Lotz filed a timely grievance contesting the Notice
of
Unprofessional Conduct under
the "just cause" provision
of
the CBA, which states in section 17.2 that "disciplinary action
shall be for just cause." The grievance was filed under Article 5 section 5.1.1
of
the CBA,
which defines a grievance "as a formal written statement by a unit member or the Association
alleging that the District has violated an express term
of
this Agreement." The grievance
alleged, among other things, that the Notice
of
Unprofessional Conduct constituted a "written
reprimand," a type
of
intermediate discipline expressly provided for in section 17.4.1
of
the
CBA. Further, section 17.5.1.2 provides that a written reprimand may be issued
....
for repeated minor infractions or more severe violations
describing the behavior and mentioning any previous warnings,
advising that future similar actions could result in further
disciplinary action.
4

Article 17, section 17.2.1 lists eight categories of offenses for which an employee may
be disciplined. Among the listed offenses is "unprofessional conduct."
Article 17 also contains appeal procedures for intermediate discipline. 	In relevant
part, section 17.6 provides as follows:
17.6 Appeal
17.6.1 	In the event a unit member appeals a suspension, the
suspension shall be served immediately, but the pay shall not be
withheld unless the District prevails in the appeal.
17.6.2. Intermediate disciplinary action may be appealed as
follows:
17.6.2.1. Oral warning or written reprimand: no appeal.
(Underlining in original.)
The remainder of section 17.6 sets forth appeal procedures for suspensions for up to 15 days.
The District rejected Lotz's grievance at the lower levels of the grievance procedure.
The District claimed the Notice of Unprofessional Conduct was a statutory action issued
under Education Code section 44938, and therefore it was not grievable under the CBA.
Specifically, the District's Level II response states: 	"Article 17 of the Certificated Contract
states 'Intermediate discipline under these provisions shall not be exclusive but shall be in
addition to those disciplinary actions permitted under the California Education Code.' The
Notice of Unprofessional Conduct was issued pursuant to Education Code section 44938." At
no time during the various levels of the grievance procedure did the District assert that a
written reprimand, as opposed to Notice of Unprofessional Conduct, was not grievable under
the CBA. 	The Association appealed the grievance to arbitration.
At the outset of the arbitration hearing, the District moved to dismiss the grievance on
grounds of substantive non-arbitrability. The District again argued that the Notice of
5

Unprofessional Conduct is an Education Code procedure, it is expressly excluded from the
CBA, and it is not subject to bargaining under BERA. Therefore, the District claimed the
arbitrator lacked jurisdiction.
The District also argued that a Notice of Professional Conduct is a statutory action that
may be challenged only before the Office of Administrative Hearings as part of a dismissal
proceeding before that agency. 	The District contended, moreover, that Article 17, section 7.1,
covers forms of discipline that are "in addition to" disciplinary actions permitted by the
Education Code. 	The actions covered by the CBA are oral warnings, written reprimands, and
suspensions without pay for up to 15 days. There is no mention in the CBA of a Notice of
Unprofessional Conduct, the District concluded. The District's motion to dismiss did not
expressly contend that written reprimands are not grievable under the CBA.
In response, the Association argued the notice given Lotz was a written reprimand
covered by the CBA. The arbitrator took the motion under submission.
At the beginning of the arbitration hearing, the District submitted the following
arbitrability issue to the arbitrator:
Is a Notice of Unprofessional Conduct prepared pursuant to
Education Code Section 44938 arbitrable?
The parties agreed to submission of the following substantive issue:
Did the District violate Article 17, Intermediate
Discipline, of the parties collective bargaining
agreement when it issued a Notice of
Unprofessional Conduct to Mary Lotz on June 2,
1999? If so, what is the remedy?
It was agreed that the arbitrator would receive evidence on the arbitrability issue and the
substantive issue. If it was determined that the matter was not arbitrable, the arbitrator would
6

not reach the merits of the underlying substantive issue. If the arbitrator determined the matter
was arbitrable, she would reach the merits of the underlying issue.
At the arbitration hearing, the parties presented evidence and argument in support of
their respective positions about the nature of the notice received by Lotz. 	Evidence of
bargaining history as it relates to whether the intermediate discipline article in the agreement
was "in addition" to Education Code procedures was introduced. There was no argument at
the hearing about whether a written reprimand may be appealed under the CBA.
In its post-arbitration brief, the District contended that the grievance was not arbitrable
because the Education Code procedure is outside the scope of representation under EERA and
is expressly excluded from the CBA. Therefore, the District argued, the arbitrator lacked
jurisdiction to order destruction of the Notice of Unprofessional Conduct. The District argued
further that, under section 17 .1, the intermediate discipline expressly covered by the CBA --
oral warning, written reprimand, suspensions without pay for up to 15 days -- is "in addition
to" disciplinary actions permitted by the Education Code. The District asserted that there is no
mention of a Notice of Unprofessional Conduct in the CBA because it is not discipline; rather,
it is a notice to an employee of performance problems which could lead to dismissal if not
corrected.
In addition, the District argued for the first time that even if the Notice of
Unprofessional Conduct is considered a written reprimand, no contract violation exists because
the Association may not appeal a written reprimand under section 17.6.2.1 of the CBA. 	In
relevant part, the District's arbitration brief states:
The District has not previously raised this issue because it has
consistently maintained the position that the Notice is what it is: a
Notice of Unprofessional Conduct, and not a reprimand ....
However, even if the Notice were a reprimand, the arbitrator
7

could not make a determination as to whether Article 17 were
violated, because the Association has no appeal rights
.....
Since
the parties agreed that oral and written reprimands cannot be
appealed, they cannot be taken to the next step: arbitration.
The Association's brief addressed whether written reprimands are subject to appeal
under the CBA only in a footnote. 	The footnote, in its entirely, reads as follows.
Section 17.6 concerning "appeals" describes a system for
appealing suspensions to the personnel director and the option
of
expedited arbitration. 	Subsection 17.6.2.1 contains the
statement "Oral warning or written reprimand: no appeal."
When read in the context
of
Section 17 .6 it appears to suggest
that oral warnings and written reprimands may not be submitted
to the appeal system leading to expedited arbitration. 	There is
no prohibition against submitting oral warnings or written
reprimands to the regular grievance procedure as NT A has done
in the instant case. Indeed, the District has not even asserted
that Subsection 17.6.2. l is relevant to the instant case at any
time in the processing
of
this grievance.
Prior to addressing the submitted issues, the arbitrator summarized the positions
of
the
parties. 	As more fully explained below, her characterization
of
the issues is useful in resolving
this dispute. 	The summaries are as follows.
The District argued to the arbitrator that the Notice
of
Unprofessional Conduct issued to
Lotz is not a form
of
"intermediate discipline" under Article 17. Rather, it is an integral part
of
the dismissal procedures under Education Code section 44938. 	EERA does not include
dismissal procedures as an enumerated topic within the scope
of
representation, but only
allows public school employers and exclusive representatives to negotiate on disciplinary
matters "other than dismissal." (Section 3543.2(b).) Because the Notice
of
Unprofessional
Conduct is a required step in the dismissal proceedings under the Education Code, the District
argued, it is part
of
a statutory dismissal procedure that cannot be subject to negotiations. 	Any
flaws in a Notice of Unprofessional Conduct may be reviewed only by a hearing officer from
8

the Commission
of
Professional Competence, which has exclusive jurisdiction over dismissal
proceedings under Education Code section 44944(b
).
	Thus, the District argued to the arbitrator
that she had no jurisdiction to determine the sufficiency
of
the Notice
of
Unprofessional
Conduct. An alternative argument presented by the District to the arbitrator is that, even
if
the
Notice
of
Unprofessional Conduct is determined to be a written reprimand and deemed a form
of
intermediate discipline under the CBA, it may not be appealed under Article 17.6.2.1.
The arbitrator summarized the Association's position as follows. 	The Notice
of
Unprofessional Conduct fits the definition
of
a written reprimand under Article 17, section
17.5.1.2. The District cannot label an obvious written reprimand a Notice
of
Unprofessional
Conduct and then assert it is outside the scope
of
the agreement as part
of
a statutory appeal
procedure. Further, the Association argued before the arbitrator, the CBA expressly provides
that the disciplinary procedures therein are "in addition" to those provided for in the Education
Code, thus establishing that the parties wanted both procedures available. The District's
failure to pursue dismissal against Lotz is further evidence that the notice is clearly a
disciplinary matter covered by the CBA, not the Education Code.
The arbitrator's decision framed the arbitrability dispute as follows.
The parties' arbitrability dispute turns on whether the written
"Notice
of
Unprofessional Conduct" issued on June 2, 1999, to
the Grievant is a 'written reprimand' and therefore subject to the
terms
of
the their collective bargaining agreement, or is instead
a statutory notice issued under the Education Code and outside
the scope
of
the agreement and therefore outside the jurisdiction
of
the arbitrator.
The arbitrator concluded that the notice issued to Lotz was a "written reprimand" for
"unprofessional conduct" within the meaning of Article 17, even though it was labeled a
Notice of Unprofessional Conduct. She concluded the notice was a "written statement"
9

10
alleging "repeated minor infractions" (confrontational behavior) as well as "more severe
violations" (medically diagnosing a student and refusing to allow students to attend a field
trip). 	She noted that the notice advised Lotz that "future similar actions could result in further
disciplinary action." Thus, she concluded the notice was a written reprimand as defined
in
section 17.5.1.2.
The arbitrator further concluded that the District is bound
by
its agreement to
administer "intermediate discipline" in accordance with the CBA, which permits disciplinary
action only for "just cause." The District cannot avoid the terms
of
its bargain by claiming that
disciplinary action is imposed under the Education Code rather than under the CBA, the
arbitrator said, for such an interpretation would render the discipline clause meaningless.
"When taking any
of
the disciplinary actions outlined in Article 17 ," the arbitrator concluded,
"the District is contractually bound to abide by the definitions and procedures in Article 1 7."
She concluded, moreover, that "the District is entitled at the time it issues a written reprimand
to designate the reprimand as also constituting a Notice
of
Unprofessional Conduct, so that it
would be in a position to proceed with dismissal
if
it deems such action appropriate in the
event the reprimand does not have the desired corrective effect."
The arbitrator next recognized what she described as a problem with the "bifurcated
discipline system" in the agreement; that is, an arbitration award that deemed a "Notice
of
Unprofessional Conduct" a "written reprimand" issued without just cause under the CBA and
ordered destroyed would encroach on the exclusive jurisdiction
of
the Commission on
Professional Competence under Education Code dismissal procedures. 	Such an arbitral
decision would negate the District's attempt to initiate dismissal proceedings under the
Education Code, because an employer cannot proceed with dismissal without having issued a
10

11
Notice
of
Unprofessional Conduct. To allow an arbitrator to assert jurisdiction over this
required preliminary step could interfere with the statutory dismissal proceeding and create a
conflict. 	The arbitrator continued:
Presumably, the preemption language in BERA would provide
the answer to such a conundrum. However, under this contract,
no such conflict exists between the two avenues
of
discipline
because the contract does not grant an arbitrator authority to
review written reprimands. Therefore, no arbitrator would have
authority to decide that a reprimand, regardless
of
whether it is
also designated as a Notice
of
Unprofessional Conduct under the
[Education Code] Sec. 4493 8, was issued without just cause or
order that a reprimand be removed for failing to comply with
Article 17.
The arbitrator then stated her reasons for reaching this conclusion. First, section 17.6
sets out the right
of
bargaining unit employees to appeal the discipline authorized by
Article 17. Section 17.6.2.1 states: 	"Oral warning or written reprimand: no appeal."
According to the arbitrator, "this language makes a written reprimand not arbitrable because it
is not appealable."
Second, the arbitrator rejected the Association's argument that a grievance challenging
a written reprimand as lacking "just cause" ( section 17 .2.1) may be filed under the Article 5
grievance procedure as a violation
of
"an express term
of
the Agreement," as provided for in
section 5 .1.1. Such an argument the arbitrator concluded, would render the "no appeal"
language in section 17 .6.2.1 meaningless. Furthermore, the arbitrator reasoned, Article 1 7
permits appeal
of
a suspension, and makes it clear that an appeal
of
a suspension can
lead
to
arbitration: it provides that the decision regarding a suspension at the "Level II grievance
appeal" can be submitted to expedited arbitration. 	Under this language, the arbitrator
concluded, "it is plain that an 'appeal' and a 'grievance' are one and the same. 	The scheme
allowing appeal to arbitration clearly and unambiguously is limited to suspensions."
11

12
Nor can the grievance procedure itself, in Article 5, be read to grant the right
to
grieve a
violation
of
Article 17, the arbitrator continued, "since the more specific language in [section
17
.2.6.1] regarding appeals
of
actions taken under this one section must prevail over the more
general language [in section 5.1.1] defining a grievance as an allegation that the District has
violated an express term
of
this Agreement."
The arbitrator next pointed out that the Association noted in its brief that the District
had not raised section 17.6.2.1 as a defense at any point in the grievance procedure, and the
District acknowledged as much in its brief. However, the arbitrator did not consider the
District's failure to raise section 17.6.2.1 earlier a waiver
of
this particular arbitrability
defense. 	The arbitrator stated:
Failure to raise an arbitrability defense in a timely manner may be
construed as a waiver
of
that defense, particularly
if
it is raised at
the post-hearing brief stage for the first time. 	But here, there is
no waiver because the District did not fail to raise an arbitrability
defense. Rather, the District has consistently asserted that the
grievance is not arbitrable, albeit for other reasons than the "no
appeal" proviso. Because it has consistently held the position that
no "reprimand" was issued and that Article 17 was not involved,
it did not address in its prehearing motion to dismiss the
provisions
of
Article 17 covering appeals. 	Instead it focused on
the preemption
of
disciplinary action by the Education Code and
its claim that the Notice
of
Unprofessional Conduct was a notice
arising under the Code, not a reprimand under the contract. 	Only
in its post-hearing brief did it address various "alternative"
arguments, in the event the undersigned Arbitrator should reject
its arguments and conclude that the Notice
of
Unprofessional
Conduct was in fact a "written reprimand" within the meaning
of
Article 17. One
of
those alternatives brought it to the "no appeal'
language in the contract. [Fn. omitted.]
The arbitrator held that the District was not barred from raising the section 17.6.2. l defense in
its brief. 	She reasoned that an additional legal argument in support of an arbitrability claim is
permissible under the terms of the CBA. In this instance, the arbitrator continued, "the parties
12

13
have themselves recognized that arguments may be presented either at the hearing or in post-
hearing briefs." 	Section 5.4.5
of
the CBA covers "Limitations Upon the Arbitrator." In
relevant part, it provides:
Section 5.4.5
.1:
The decision
of
the arbitrator shall be based
solely upon the evidence and arguments presented to [her] by the
respective parties in the presence
of
each other, and upon
arguments presented in briefs. The arbitrator shall have no power
to alter, amend, change, add to, or subtract from any
of
the terms
of
this Agreement, but shall determine only whether or not there
has been a violation
of
any express term
of
this agreement in the
respect alleged in the grievance.
Section 5.4.5.2: This Agreement constitutes a written agreement
under Section 3540.l(h)
of
the Educational Employment
Relations Act, Labor Code Section 1126 and other laws
of
the
State
of
California. The arbitrator shall not have authority to
decide any issue not within the submission, and shall determine
the intent
of
the parties by applying generally accepted rules
of
contract interpretation. Past practice may be considered, but shall
not modify clear terms
of
the agreement. The arbitrator shall be
without power or authority to add to, delete from, or modify the
terms
of
this Agreement.
Relying on the first sentence in section 5.4.5.1, the arbitrator concluded that she had the
authority to consider "arguments presented in briefs." Thus, the arbitrator concluded that
failure to include section 17.6.2.1 as a reason to dismiss the grievance at the outset
of
the
arbitration proceeding did not waive that defense or preclude the District from raising that
provision in its post-hearing brief.
Further, according to the arbitrator, "a waiver
of
a jurisdictional defense is not readily
inferred. When, as here, the contract clearly enunciates that written reprimands are not
appealable, it would be in excess
of
the arbitrator's jurisdiction to find that an appeal
of
a
written reprimand is nonetheless arbitrable and then arbitrate the contention that the reprimand
was without just cause." Finally, the arbitrator noted that the Association had every reason to
13

14
be aware
of
the "no appeal" proviso in the CBA, and it did address the clause in its post-
hearing brief, anticipating that the District would raise it as an additional arbitrability defense.
In sum, the arbitrator concluded that although the Notice
of
Unprofessional Conduct
issued to Lotz was in fact a written reprimand, the question
of
whether it was issued for just
cause is not arbitrable because section 17.6.2.1 precludes its appeal to arbitration.
At the end
of
the arbitration hearing, the arbitrator instructed the parties to submit two
copies
of
their briefs to her no later than July 24, 2000. The arbitrator would then forward a
copy
of
each party's brief to opposing counsel. This process was completed as ordered
by
the
arbitrator. The Association's attorney, Ramon Romero (Romero), received a copy
of
the
District's brief on or about July 28. The arbitrator issued her decision on August
7.
Because the parties had exchanged simultaneous briefs through the arbitrator, there
were only five business days between the Association's receipt
of
the District's brief and the
arbitrator's decision. Romero testified that he mailed the Association's brief on July 24 and
went on vacation for four days. 	After returning from vacation, he worked on other matters
from July
31
to August 4, and did not read the District's brief until after he received the
arbitrator's award, which was •issued on August
7.
On August 29, 2000, the Association asked the arbitrator to reconsider her decision
and/or reopen the record for additional evidence concerning bargaining history and past
practice. The Association argued that the arbitrator erred when she concluded that written
reprimands were not arbitrable under the CBA and such evidence would shed light on the
issue. The request stated that written reprimands have always been arbitrable, and the "no
appeal" language in section 17.6.2.1 does not mean a written reprimand may not be challenged
through the grievance and arbitration procedure in Article 5. According to the Association's
14

15
request, section 17.6 contains a procedure for expedited arbitration for suspensions that is
distinct from the normal grievance procedures in Article 5 for written reprimands.
The Association's letter also states:
The evidence will show that during the entire history
of
bargaining and practice under Section 17, the District has not
even once taken the position that written reprimands are not
grievable or arbitrable. When Section 17 was negotiated, the
parties did not agree to exclude written reprimands from
arbitration. At page
16
of
your decision, you state that NTA was
aware
of
Section 17.6.2.1 and addressed it in its post-hearing
brief, "anticipating" that the District would raise it as an
additional arbitrability defense. Precisely the opposite was true.
NTA anticipated that the District would not raise it as an
additional arbitrability defense and the text
of
the footnote in
which NTA mentions it so shows. The District has never raised
such a defense in the history
of
Section 17 or in the history
of
this
case. NTA anticipated that the District would not do so in its
post-hearing brief as well. 	[Italics in original.]
In addition, the Association advanced several reasons in support
of
its assertion that the
arbitrator exceeded her authority under the first sentence in section 5.4.5.1, as set forth above.
First, the Association offered a different construction
of
that section: "The comma after "other"
and the word "and" show plainly and unambiguously that you cannot base your decision solely
upon a surprise argument presented exclusively in a post-hearing brief. This part
of
section
5.4.5.1 wording is clearly intended to avoid the type
of
ambush that the District has perpetrated
here." 	(Italics in original.) Second, the Association argued that section 5.4.5.1 also prohibits
an arbitrator from amending or adding to the CBA, and the Lotz decision violated that
prohibition by changing the parties' agreement concerning the arbitrability
of
written
reprimands. Third, the Association pointed out that section 5.4.5.2 provides that the arbitrator
"shall not have authority to decide any issue not within the submission." As far as arbitrability
is concerned, the submission in this case was, "Is a Notice of Unprofessional Conduct prepared
15

16
pursuant to Education Code Section 44338 arbitrable?" The Association argued that the
arbitrator decided an issue outside this submision.
On August 30, 2000, the District opposed the Association's request. 	The District noted
that the arbitrator expressly stated in her decision that the parties had agreed she would retain
jurisdiction solely for the purpose
of
"resolving any dispute over implementation
of
the
remedy, but not to reconsider the merits
of
this decision, which is final and binding."
(Bold type in original.) Thus, the District claimed the arbitrator had no jurisdiction to
reconsider her decision or reopen the record. The District explained that it had not raised a
section 17.6.2.1 arbitrability defense prior to the post-hearing brief because it had taken the
position that the notice issued to Lotz was a Notice
of
Unprofessional Conduct, "and it did not
wish to concede in any way that the notice was a written reprimand." 	Consistent with the
arbitrator's decision, the District stressed that both parties addressed the arbitrability issue
throughout the hearing and, under section 5.4.5.1, it had every right to raise the
section 17.6.2.1 argument in its post-hearing brief.
In addition, the District argued, the arbitrator has the authority uhilaterally to decline
jurisdiction over an issue based on her interpretation
of
the CBA, even
if
a jurisdictional claim
is not raised by the parties. In this case, the arbitrator's decision fell within this authority.
Finally, the District argued that the Association, in its claim that the arbitrator had gone
beyond the submitted issue, had interpreted that issue too narrowly.
In your decision you determined that the document labeled
"Notice
of
Unprofessional Conduct" could also be a written
reprimand. It is still, however, a Notice
of
Unprofessional
Conduct. Thus, the question of whether that document is
arbitrable was at issue and your decision addressed that question
in full.
16

17
In her response the arbitrator noted that, based on the stipulation of the parties, she may
reopen the record only to resolve a dispute about the remedy. Absent mutual agreement, she
said, no authority exists to reconsider the decision. In addition, she noted that the California
Arbitration Act limits her authority to correct a decision to circumstances not present here,
concluding that mere disagreement as to the interpretation of the CBA is not grounds for
reconsideration.
After citing her underlying rationale for the decision, the arbitrator stated that the
Association should have raised its arguments when it received the District's brief, not when it
received the decision.
The Association made no such request at that time. Rather, the
Association appeared to have rested on the concise argument
contained in its own brief on the meaning of Sec. 17 .6.2.1 and
regarding the failure of the District to mention this issue in its
prehearing arbitrability motion, apparently in anticipation that the
District might make this argument. As reflected in the award, the
Association's contentions were considered and the decision was
not reached without benefit of argument from both parties. The
Association cannot request that the question be revisited now,
after issuance of the final and binding award which adopted the
District's, rather that the Association's, position on this point.
Therefore, the arbitrator denied the Association's request that she reconsider her decision or
reopen the record.
On October 5, 2000, the Association filed this unfair practice charge. At the hearing on
October 18, 2001, the entire arbitration record was received into evidence for the purpose of
resolving the repugnancy issue. In addition, evidence of bargaining history and past practice
was presented regarding the meaning of Article 17 and the "no appeal" language for the
purpose of resolving the underlying unilateral change allegation in the event the undersigned
decided the arbitrator's decision is repugnant to the EERA. As more fully addressed below, it
17

18
determined that the arbitrator's decision is not repugnant to the EERA. 	Therefore, it is
unnecessary to address the evidence of bargaining history and past practice presented at
hearing.
ISSUE
1. 	Is the arbitrator's decision repugnant to the purposes of the EERA?
2. 	If the arbitrator's decision is repugnant to the purposes of the EERA, did the
District unilaterally change the CBA to preclude the appeal of written reprimands?
CONCLUSIONS OF LAW
The Association argues that the arbitrator's decision is repugnant to the Act because the
matters raised in the unfair practice charge were not presented to the arbitrator and the
arbitration procedure was not fair and regular. 	The Association contends that the District's
defense, to the extent it is based on section 17 .6.2.1 of the CBA, was not presented to the
arbitrator until it filed its post-hearing brief; in fact, the Districthad never claimed written
reprimands are not grievable or arbitrable. Because this defense was presented to the arbitrator
in a post-hearing brief, the Association argues, it had no opportunity to present evidence
concerning bargaining history and past practice. The Association contends, therefore, that the
arbitration proceedings were not fair and regular because the arbitrator exceededher authority
under the grievance procedure when she based her award on a "surprise argument" raised for
the first time in the District's post-hearing brief.
In addition, the Association points to several CBA provisions that prevent the arbitrator
from amending or modifying the CBA. 	In a related claim, the Association contends the
arbitrator exceeded her authority under the CBA when she decided a substantive arbitrability
issue that was outside the scope of the submission.
18

19
Finally, the Association argues, the arbitral proceedings were not fair and regular
because the arbitrator did not allow rebuttal evidence and arguments to establish that the
District at no time prior to its post-hearing brief asserted that written reprimands were not
grievable or arbitrable. 	The Association contends the footnote in its post.:.hearing brief does
not suggest that it anticipated the District would argue that written reprimands may not be
appealed under the CBA. If anything, the Association insists, precisely the opposite is true;
that is, the footnote suggests it anticipated the District would not raise the defense.
The District argues in response that the issue presented in the complaint has already
been considered by the arbitrator and discussed at great length in her decision. 	According to
the District, the arbitrator's decision that written reprimands may not be appealed is based on
clear and unambiguous language in the CBA. 	Where contract language is clear and
unambiguous, the District contends, there is no need to consider past practice or bargaining
history to ascertain its meaning, and the CBA expressly incorporates this rule.
The District contends further that the Association's argument here is little more than an
attempt to have PERB stand in the shoes of the arbitrator. Even if PERB disagrees with the
arbitrator's interpretation of the CBA, the decision should not be overturned, the District
asserts. 	The issue here is not whether the CBA lends itself to a different interpretation; rather,
PERB must defer to an arbitrator's decision unless it is not susceptible to an interpretation
consistent with the EERA. Under this standard, the District concludes, the arbitrator's award
should stand.
In addition, the District contends both parties had the opportunity to present their
respective cases before the arbitrator, including arguments regarding arbitrability. Contrary to
19

20
the position advanced
by
the Association, the District contends the arbitrator acted within her
authority under the CBA in resolving the claims.
The District next argues that the arbitrator was correct in concluding that the CBA
permitted it to raise the Article 17.6.2.1 "no appeal" provision for the first time in its brief.
Under the relevant provision
of
the CBA, it was free to raise evidence and arguments presented
at the hearing, as well as post-hearing arguments. In the District's view, the arbitrator
correctly interpreted this provision. In any event, the District disputes the Association's claim
that it was surprised when the Article
17
appeal language appeared in the District's brief.
Pointing to the footnote in the Association's post-hearing brief, the District contends the appeal
issue clearly was anticipated by the Association.
Finally, the District contends, the Association is attempting an end-run around a final
and binding arbitration procedure in order to modify an arbitrator's decision that is appropriate
and reasonable based on the relevant contract provisions. In the District's view, the
Association has failed to demonstrate that the arbitrator's decision is palpably wrong
or
not
susceptible to an interpretation consistent with EERA.
Section 3541.5(a)(2), in relevant part, provides:
(2)
	...
The board shall have discretionary jurisdiction to review
the settlement or arbitration award reached pursuant to the
grievance machinery solely for the purpose
of
determining
whether it is repugnant to the purposes
of
this chapter.
	If
the
board finds that the settlement or arbitration award is repugnant
to the purposes
of
this chapter, it shall issue a complaint on the
basis
of
a timely filed charge, and hear and decide the case on the
merits. Otherwise, it shall dismiss the charge.
20

21
In fashioning a test to determining whether an arbitrator's award is repugnant to the EERA,
PERB has looked to decisions under the National Labor Relations Act (NLRA)3 for guidance.
Adopting the standards first set out in Speilberg Manufacturing Co. (1955) 112 NLRB 1080
[36 LRRM 1152], PERB has applied several factors in resolving repugnancy claims. An
award is repugnant to the EERA unless the following criteria are satisfied: (1) the matters
raised in the unfair practice charge must have been presented to and considered by the
arbitrator; (2) the arbitral proceedings must have been fair and regular; (3) all parties to the
arbitration proceedings must have agreed to be bound by the arbitral award; and (4) the award
must not be repugnant to the EERA, as interpreted by the Board. 	(Dry Creek Joint Elementary
School (1980) PERB Order No. AD-81a (Dry Creek).)
In determining whether matters raised in the unfair practice complaint have been
presented to the arbitrator, PERB has adopted the following standard .
. . . We would find that an arbitrator has adequately considered
the unfair labor practice if ( 1) the contractual issue is factually
parallel to the unfair labor practice issue, and (2) the arbitrator
was presented generally with the facts relevant to resolving the
unfair labor practice. [Fn. omitted.] In this respect, differences,
if any, between the contractual and statutory standards of review
should be weighed by the Board as part of its determination under
the Spielberg standards of whether an award is "clearly
repugnant" to the Act. ... Unless the award is "palpably wrong,"
[Fn. omitted.] i.e., unless the arbitrator's decision is not
susceptible to an interpretation consistent with the Act, we will
defer. 	[Fremont Unified School District ( 1994) PERB Decision
No. 1036, p. 4 (Fremont), relying on Olin Corporation (1984) 268
NLRB 573 [115 LRRM 1056].]
In applying these factors, the Board has declined to substitute its judgment for that of
the arbitrator. Thus, "the possibility that the Board may have reached a different conclusion
interpreting the parties' agreement and the evidence, does not render the award unreasonable or
3 The NLRA is codified at 29 U.S.C. section 141 et seq.
21

22
repugnant." 	(Oakland Unified School District (1985) PERB Decision No. 538, p. 4, fn. 3
(Oakland); Los Angeles Unified School District (1982) PERB Decision No. 218, p.
8,
fn. 6
(Los Angeles).)
In this case, I find that the issue in the unfair practice charge was reasonably
encompassed within the arbitrability issue before the arbitrator. The arbitrability issue before
the arbitrator was framed as follows: "Is a Notice
of
Unprofessional Conduct prepared
pursuant to Education Code Section 44938 arbitrable?" According to the arbitrator, the
arbitrability dispute "turns on whether the 'Notice
of
Unprofessional Conduct' issued on
June 2, 1999, to the Grievant is a 'written reprimand' and therefore subject to the terms
of
the
collective bargaining agreement, or is instead a statutory notice issued under the Education
Code and outside the scope
of
the agreement." The Association had argued that the notice is a
written reprimand under Article 17, and the District had argued that it was a statutory notice
under the Education Code. Thus, one
of
the contractual issues before the arbitrator was
whether the notice is a written reprimand and subject to the tenns
of
the CBA. This issue is
factually parallel to the issue in the unfair practice complaint, which is whether the District
unilaterally changed the CBA when it declared that written reprimands are not appealable
under the CBA. _Although these issues are not identical, they are parallel in that they both
involve the question
of
whether written reprimands are subject to the terms
of
the CBA. 	In
addressing the submitted arbitrability issue, the arbitrator effectively considered the issue in
the unfair practice charge.
Adopting the Association's argument, the arbitrator concluded that the notice is a
written reprimand under the "intermediate discipline" provision of Article 17; as such, it could
be issued only for "just cause." She further concluded that the District could not avoid the
22

23
terms
of
the CBA
by
claiming the notice was issued under the Education Code rather than the
CBA.4
"When
taking any
of
the actions outlined in Article 17, the District is contractually
bound to abide
by
the definitions and procedures in Article 17," the arbitrator concluded.
Thus, the arbitrator adopted the argument advanced
by
the Association, but she went on to
conclude that the written reprimand was not subject to appeal under the CBA.
It
is this finding
which the Association contests as repugnant to the Act.
The arbitrator reasoned that the written reprimand given Lotz is not subject to appeal
under the CBA is based on what she viewed as clear contract language prohibiting appeals.
Article 17 is entitled "Intermediate Discipline." Section 17.6.2 sets out the appeal procedures
for "intermediate discipline."
It
states that "intermediate disciplinary action may be appealed
as follows." Immediately following this language, section 17 .6.2.1 provides, "Oral warning or
written reprimand: no appeal." The arbitrator interpreted this language to mean
"a
written
reprimand [is] not arbitrable because it is not appealable."
The arbitrator also rejected the Association's argument that the CBA permits a
grievance to challenge a written reprimand under a "just cause" standard.
It
is true that Article
5, section 5.1.1 permits a grievance "alleging that the District has violated an express
term
of
this Agreement." And Article 17, section 17.2.1, provides that "disciplinary action shall be for
just cause." However, the arbitrator concluded that to permit a grievance challenging a written
reprimand would render the "no appeal" language in section 17.6.2.1 meaningless. She
4 The arbitrator noted that bargaining history testimony introduced at hearing indicates
that the parties were concerned with making clear that the disciplinary procedures in
the CBA
were "in addition to" the statutory procedures, and the District did not relinquish its right to
use the statutory procedures. 	She noted further that nothing in the testimony indicates that the
District could ignore the procedures in the CBA in favor
of
the statutory procedures. Thus, the
arbitrator concluded, the clear and ambiguous language in the CBA is in no way modified by
the evidence of bargaining history introduced at the arbitration hearing.
23

24
concluded, moreover, that the more specific "no appeal" language in section 17.6.2.1 prevails
over the broad language in section 5.1.1 granting a right to file a grievance.
Even
if
there is room for disagreement with the conclusions reached
by
the arbitrator,
they are not unreasonable or repugnant to the purposes
of
BERA, nor are they "palpably
wrong." (Fremont at p. 4.). The arbitrator based her decision on clear contract language. 	As
the District points out, it is generally accepted that "where contract language is clear
and
unambiguous, it is unnecessary to go beyond the plain language
of
the contract itself to
ascertain its meaning." (Marysville Joint Unified School District (1983) PERB Decision
No. 314, p. 9.)
The Association argues, however, that the arbitrator's agreement with the
District's
belated argument that section 17.6.2.1 precluded the arbitration
of
the written reprimand
prevented a fair and regular hearing. 	The Association contends that it was ambushed
by
the
District's post-hearing claim and was precluded from presenting evidence
of
bargaining history
and past practice to rebut the argument.
Even
if
the arbitrator relied on an argument advanced
by
the District in its post-hearing
brief, her decision to do so does not render the award repugnant to the Act under this CBA.
Noting that the failure to raise an arbitrability defense in a timely mannermay be construed as
a waiver
of
that defense, the arbitrator nevertheless rejected the Association's claim.
She
concluded that the parties themselves recognized in the CBA that the arbitrator may consider
arguments raised at the briefing stage.
To support her decision, the arbitrator relied on section 5 .4.5
.1
of
the CBA as authority
to consider the District's argument. 	That section provides in relevant part that "the decision of
the arbitrator shall be based solely upon the evidence and arguments presented to [her] by the
24

25
respective parties in the presence
of
each other, and upon arguments presented in briefs." The
arbitrator also noted that the Association anticipated the argument in its brief. She wrote: "the
Association had every reason to be aware
of
this provision in the contract, and it did address
[section
17
.6.2.1] in its post-hearing brief, anticipating that the District would raise it as an
additional arbitrability defense."
The Association argues that the arbitrator has wrongly interpreted section 5.4.5.1.
According to the Association, "the comma after 'other' and the use
of
the word 'and'
immediately thereafter shows that the Arbitrator could not base her decision solely upon a
surprise argument presented exclusively in a post-hearing brief. The language in Section
5.4.5
.1
is clearly intended to avoid the type
of
ambush that the District perpetrated here."
(Italics in original.) The Association argues further that the footnote in its post-hearing
brief
cannot be read as an anticipation
of
the District's defense: "Precisely the opposite was true.
NTA anticipated that the District would not raise it
as
an additional arbitrability defense and
that is obvious from the text
of
the footnote in which NTA mentioned it." (Italics in original.)
Granted, the arbitrator's application
of
section 5 .4. 5
.1
and her interpretation
of
the
footnote in the Association's brief are not beyond dispute. In addressing the Association's
arguments, however, it is important to note that an arbitrator's award is not rendered
unreasonable or repugnant to the purposes
of
the Act under the Dry Creek standards merely
because the Board disagrees with the decision or would have interpreted the contract
differently. 	(Oakland at p. 4, fn. 3; Los Angeles at p. 8, fn. 6.) A decision is repugnant to the
Act only when it is "palpably wrong" or "not susceptible to an interpretation consistent with
the Act." (Fremont at p. 4.) Under these standards, it must be concluded that the arbitrator's
decision is not repugnant to the Act.
25

26
While the Association has offered a reasonable interpretation
of
section 5.4.5.1, it
cannot be concluded that the arbitrator's interpretation is unreasonable. 	Although there clearly
is room for disagreement, it was not unreasonable for the arbitrator to conclude that section
5.4.5.1 gave her the authority to consider the section 17.6.2.1 argument raised in the District's
brief. As section 5.4.5.1 states, the arbitrator may consider evidence and arguments presented
at hearing, "and arguments presented in briefs."
The same can be said about the different interpretations placed on the footnote in the
Association's brief to the arbitrator. The Association may not have intended the footnote as an
indication that it anticipated the District to raise a section
17
.6.2.1 defense, but the arbitrator's
interpretation
of
the footnote was not unreasonable. The footnote refers to the "no appeal"
language in section 17.6.2.1 and asserts that "there is no prohibition against submitting oral
warnings or written reprimands to the regular grievance procedure as NTA has done in the
instant case."
Even
if
the right to respond more fully to the section 17.6.2.1 argument raised in the
District's brief is implied in section 5.4.5.1, the outcome here would be the same. As the
arbitrator pointed out, the time to request to reopen the record was before she issued her
decision. 	Due to unavoidable circumstances, the Association could not do so prior to the time
the decision was issued. 	By the time the request was made, the arbitrator's hands were tied
because the parties had stipulated that she would retain jurisdiction only to resolve a dispute
about remedy. Therefore, absent mutual agreement, the arbitrator had no authority to reopen
the record or reconsider her decision.
The Association has argued that the arbitration proceeding is repugnant to the purposes
of the Act because it was not given the opportunity to present evidence of bargaining history or
26

27
past practice regarding the meaning
of
Arcticles 5 and 17. However, to withstand a challenge
on repugnancy grounds, an arbitration award need not be based on all evidence deemed
relevant
by
the grievant. 	Under Fremont, an arbitrator must be "presented generally" with
facts that are "relevant" to resolving the unfair practice charge. 	(Fremont at p. 4.) This
requirement has been met here. 	The arbitrator based her decision on clear and unambiguous
contract language covering the appeal
of
intermediate discipline, concluding that the specific
language in Article 17 prevails over the more general language in Article 5. The absence
of
evidence regarding bargaining history or past practice to resolve this contract dispute does not
render the award repugnant. In fact, under the circumstances presented here, the award plainly
is susceptible to an interpretation consistent with the purposes
of
the Act. As the Board has
long held, where contract language is clear and unambiguous, it is unnecessary to go beyond
the plain language to ascertain its meaning. (See e.g., Marysville at p. 9; Morgan Hill Unified
School District (1999) PERB Decision No. 1362, p. 3 (Morgan Hill).) Evidence
of
bargaining
history is examined only
if
the language
of
the agreement is found to be ambiguous. 	(Morgan
Hill at p. 3.) And the parties have recognized in section 5.4.5.2
of
the CBA that past practice
may not be used to modify the clear terms
of
the agreement.
While there may be reasons to disagree with the arbitrator, mere disagreement is not the
test here. 	For the reasons stated above, the arbitration award is not unreasonable or "palpably
wrong;" rather, it is susceptible to an interpretation consistent with PERB decisions and the
overall purposes
of
the Act. It is concluded, therefore, that the arbitration decision is
not
repugnant under the Dry Creek standards.
27

28
PRPOSED ORDER
Based on the foregoing findings
of
fact, conclusions
of
law and the entire record herein,
the complaint and underlying unfair practice charge in Case No. SF-CE-2167-E, Newark
Teachers Association
v.
Newark Unified School District, is hereby dismissed.
Pursuant to California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 	The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
sec. 32300.)
A document is considered "filed" when actually received before the close
of
business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit.
8,
secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close
of
business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of California Code of Regulations, title 8,
section 32135(d), provided the filing party also places the original, together with the required
28

29
number
of
copies and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit.
8,
sec. 32135(b
),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
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 Cal. Code Regs., tit.
8,
secs. 32300, 32305,
32140, and 32135(c).)
Administrative
	Law
	Judge
29