Fontana Unified School District (PERB A324E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
FONTANA UNIFIED SCHOOL DISTRICT,
Employer,
and
UNITED STEELWORKERS OF AMERICA,
Exclusive Representative.
Case No. LA-UM-683-E
Administrative Appeal
PERB Order No. Ad-324
May 9, 2003
Appearances: Atkinson, Andelson, Loya, Ruud & Romo by John W. Dietrich, Attorney, for
Fontana Unified School District; Gilbert & Sackman by Jay Smith, Attorney, for United
Steelworkers of America.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the United Steelworkers of America (Steelworkers) of an
administrative determination rejecting the Steelworkers’ filing of its response to exceptions
because Steelworkers did not provide an appropriate proof of service as required by PERB
Regulations 32310 and 32140. 1
After reviewing the record, the Board excuses the Steelworkers’ defective proof of
service and thereby accepts the Steelworkers’ response to the Fontana Unified School
District’s (District) exceptions.
PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
1

________________________
BACKGROUND
On September 26, 2002, Steelworkers filed with the Board its response to the District’s
exceptions in Case No. LA-UM-683-E. The response was accompanied by a proof of service
dated September 23, 2002, which only listed the PERB headquarters office as a recipient of
service. On October 3, 2002, the Board appeals office sent Steelworkers a written notice that
Steelworkers had neglected to provide a proof of service showing that it had served the
District’s Representative, John W. Dietrich (Dietrich), as required by PERB Regulation 32310.
The October 3 notice provided a deadline of October 15, 2002 for providing a proof of service
showing that Dietrich had been served with a copy of the response to the District’s exceptions.
Steelworkers did not provide a compliant proof of service by the October 15 deadline; so by
letter dated October 22, 2002, the appeals office notified Steelworkers that its response would
not be considered by the Board itself.
In its appeal, Steelworkers makes the following arguments. First, it provided proof of
service on opposing counsel to the same PERB Oakland address on October 7, 2002 that it
filed its response on September 23, 2002. Second, in the October 3 letter, the appeals office
did not indicate that the Oakland address was the incorrect address to provide proof of service
on opposing counsel. Third, opposing counsel Sherry Gordon (Gordon) was served with
Steelworkers’ response to exceptions on September 23 and acknowledged that fact in a phone
conversation that took place on October 7, 2002. 	Fourth, Steelworkers first learned of
Dietrich’s participation in these procedures in the October 3 letter and served its response on
Dietrich on October 7, 2002. In addition, Janice Carr, Dietrich’s assistant, acknowledged
2
Although Steelworkers did not provide a declaration regarding the existence and
substance of this phone conversation with its appeal, the District did not deny in its response
either that the phone conversation occurred or that Gordon acknowledged receipt of
Steelworkers’ response to exceptions during that conversation.
2
2

________________________
Dietrich’s receipt on September 25, 2002 of the original document served on Gordon during a
phone conversation that occurred on October 25, 2002. 	Fifth, although Steelworkers
apologizes for any inconvenience, it argues that none of the parties has been prejudiced by
Steelworkers’ failure to provide the Board with proof of service on opposing counsel to its
Sacramento address, and that consideration of Steelworkers’ exceptions would allow for a full
adjudication of this matter. A copy of the proof of service on opposing counsel Gordon, dated
September 23, 2002, is attached to the appeal. That same proof of service shows service on the
Board at the 1515 Clay Street, Oakland address. Also attached to the appeal is a proof of
service showing service to the Board’s Oakland office and to Gordon on September 23, and to
Dietrich on October 7, 2002. That proof of service was signed under penalty of perjury on
October 7, 2002. An original of this proof of service was filed with the Board on
November 18, 2002.
3
The District opposes Steelworkers’ appeal on the grounds that Steelworkers has not
demonstrated good cause for the relief requested. The District asserts that Steelworkers was
required to file a properly completed proof of service with PERB by October 7, 2002 and
failed to do so, but instead, attached to its appeal a questionable proof of service that indicated
a different address for PERB than the one used in the proof of service attached to
Steelworkers’ statement of exceptions. As a result, the District questions the authenticity of
Steelworkers’ Attachment 2 to its appeal, which is the proof of service showing service to the
Board’s Oakland office and to Gordon on September 23.
3The District did not refute the existence or substance of this phone conversation either.
3

DISCUSSION
PERB Regulation 32310 provides:
Within 20 days following the date of service of the statement of
exceptions, any party may file with the Board itself an original
and five copies of a response to the statement of exceptions and a
supporting brief. The response shall be filed with the Board itself
in the headquarters office. The response may contain a statement
of any exceptions the responding party wishes to take to the
recommended decision. Any such statement of exceptions shall
comply in form with the requirements of Section 32300. A
response to such exceptions may be filed within 20 days. Such
response shall comply in form with the provisions of this Section.
Service and proof of service of these documents pursuant to
Section 32140 are required.
PERB Regulation 32140 provides, in pertinent part:
(a) All documents referred to in these regulations requiring
‘service’ or required to be accompanied by ‘proof of service,’
except subpoenas, shall be considered "served" by the Board or a
party when personally delivered or deposited in the first-class
mail properly addressed.
(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.
In determining whether to accept Steelworkers’ defective service in this matter, we find
it instructive to summarize Board decisions in this matter. In Los Angeles Community College
District (1983) PERB Decision No. 309, the Board would not accept an appeal of a charging
party who failed to use a non-party to serve an appeal, who failed to serve the appeal on the
opposing party, and who failed to identify in the appeal why facts provided in the charge were
sufficient to state a prima facie case. In Los Angeles Community College District (1984)
PERB Decision No. 395 (LACCD), the charging party both failed to serve the district with his
appeal of the dismissal of his charge and when he appealed the rejection by the Board of his
appeal, he again failed to serve the district. In the dismissal letter, the charging party was
informed of the service requirements. The Board here explained that service requirements are
4

not merely ritualistic, but are basic to providing due process to the involved parties. In
Coronado Unified School District (1989) PERB Order No. Ad-188, the Board would not
excuse the charging party’s failure to serve the district with her appeal until nine days after the
filing deadline and to serve the district with a request for extension of time twenty days after
the filing deadline. The service requirements had been explained to the charging party in the
administrative law judge’s proposed decision and in the denial of her request for an extension
of time. Attached to the latter document was a copy of PERB Regulation 32140, showing that
the charging party had clearly been informed of the service requirements.
Conversely, in Santa Monica-Malibu Unified School District (1987) PERB Order
No. 163 (Santa Monica), opposing parties were served with a decertification petition two days
after its filing with PERB, after the employer and the exclusive representative had executed a
new tentative agreement. Citing the similar fact pattern in Lum v. Mission Inn Foundation
(1986) 180 Cal. App. 3d 967 [226 Cal.Rptr. 22] (Lum), the Board accepted service of the
petition on the basis that the parties had received actual notice of the filing prior to the filing
deadline and therefore fulfilling the purpose of the service requirement. In addition, as in
Lum, the parties admitted that they had not been prejudiced by the late service. In San Diego
Community College District (1988) PERB Decision No. 662 (San Diego), affirmed in part,
San Diego Adult Educators v. Public Employment Relations Bd. (1990) 223 Cal.App.3d 1124,
1131-1132 [273 Cal.Rptr. 53], service was not effectuated within the six-month statute of
limitations although the charge had been timely filed. The Board compared provisions of the
National Labor Relations Act and parallel state statutes, noting that unlike those laws, there is
no service requirement found in the statutes under the Board’s jurisdiction, only in PERB
regulations. Although the Board has dismissed an appeal for failure to serve in the LACCD
decision, the Board in San Diego recognized that where the respondent has notice of a timely
5

filing with the Board, late service will not bar the filing. (Santa Monica.) The Board interprets
PERB regulations to support their intended purpose, in this case, to protect a respondent from
stale claims or to prevent prejudice because the respondent was unable to defend itself due to
late service.
In another matter, California School Employees Association (Kotch) (1992) PERB
Decision No. 953 (Kotch), the proof of service attached to an appeal was signed by the
charging party and therefore defective. The Board, however, accepted the appeal, reasoning
that the respondent had opposed the appeal and thus there was no prejudice to it caused by the
defective service. In Los Angeles Unified School District (1993) PERB Order No. Ad-250, the
petitioner failed to serve the opposing parties with its appeal of an administrative
determination denying its severance petition. The Board accepted the appeal because the
service deficiency was cured by later service on the opposing parties with sufficient time for
those parties to file opposing statements. Therefore, the opposing parties were not prejudiced
by the late service.
In State of California (Department of Developmental Services) (1996) PERB Decision
No. 1150-S (DDS), the department was served with the union’s appeal eleven days after it was
filed with PERB. The Board held that although PERB Regulation 32140 requires service
concurrent with filing, that regulation provides no penalty for failure to comply. The Board
stated that it is within the Board’s discretion to overlook a technical violation of the regulation.
(DDS, at pp. 2-3, fn. 2.) Looking to appellate precedent, the Board explained that service of
process statutes should be liberally construed to effectuate service if actual notice has been
received by the defendant and questions of service should be resolved by considering each
situation from a practical standpoint. The courts will not presume prejudice by the mere passage
of time. The purpose of these statutes is to eliminate unnecessary, time-consuming, and costly
6

________________________
disputes over legal technicalities, without prejudicing the rights of the defendant to proper notice
in court proceedings. (Id.) In DDS, the Board extended these principles to the service
-
requirements in Section 32140. The Board excused the late service in this case because it found
no evidence of prejudice, the delay was brief, and no party claimed that either evidence or
witnesses were unavailable because of the delay.
Finally, in Lodi Unified School District (2001) PERB Decision No. 1429 (Lodi), the
exclusive representative alleged that service of a severance petition was defective because it
was signed by an authorized agent of the party. The Board held that there was no claim of an
actual failure to serve or of prejudice to the opposing parties, and that more than a technical
violation was required to dismiss the petition.4
In conclusion, Board precedent on this issue has evolved over the years in favor of
accepting documents with defective service when certain standards are met. 	Looking at the
above line of cases, it is clear that the Board has ultimately excused defective service if the
opposing parties received actual notice of the filing and if there was no showing of prejudice.
5
In this matter, Steelworkers’ response to the District’s exceptions was timely filed with
the Board’s headquarters on September 26, 2003, but was accompanied by an incomplete proof
of service, which failed to indicate that the District had been served. The appeals office advised
Steelworkers by letter dated October 3 to provide a proof of service showing that District
Representative Dietrich had been served with Steelworkers’ response to exceptions by
The Board further found in Lodi that the signator on the proof of service was not an
authorized agent of the party.
4
We respectfully disagree with the author of the concurrence regarding the introduction
of a “good cause” standard for accepting documents with defective proof of service. There is
neither a PERB regulation nor precedent supporting such a standard. In fact, some cases
identified in this decision address defective proof of service, applying the standard articulated
herein. (Lodi, Kotch.)
5
7

________________________
October 15, 2002. Steelworkers did not comply with this deadline. Instead, Steelworkers did
not provide the Board with a proof of service until the appeal in this matter, filed on October 28,
2002. This proof of service is different in the following respects. First, it was served on the
Board’s Oakland regional office; whereas, the proof of service attached to Steelworkers’
response to exceptions was properly served on the Board headquarters office. Second, the new
proof of service contained two dates: September 23, 2002, for service to the Board’s Oakland
office and District counsel Gordon; and October 7, 2002, for service on District counsel
Dietrich. None of these discrepancies is explained.
On the other hand, the District does not allege that it did not receive Steelworkers’
response to its exceptions, that it did not receive the response in a timely manner, that the
response was not served on the proper counsel, or that proof of service was not timely received
by the District. Interestingly, in the case file for exceptions taken to the proposed decision, in
all proof of service documents, Gordon is listed as the District’s counsel of record. Only in the
District’s exceptions, are both Gordon and Dietrich are listed as counsel of record; Dietrich
signed both the statement of exceptions and the cover letter. Gordon had otherwise
represented the District throughout the proceedings and both Gordon and Dietrich are
employees of the same law firm, representing the District from the firm’s Riverside office.6
Thus, there is no showing of prejudice to the District and it is apparent that the District was
indeed served on a timely basis. We therefore hold that the defective proof of service should
be excused and Steelworkers’ response to the District’s exceptions be accepted into the record.
ORDER
The appeal of the United Steelworkers of America (Steelworkers) of the administrative
The Board should take official notice of these facts in the case file for exceptions to
the proposed decision in this matter, also listed under Case No. LA-UM-683-E.
6
8

determination to deny the filing of its response to the Fontana Unified School District’s
exceptions to a hearing officer’s proposed decision is GRANTED. It is hereby ORDERED
that the appeals office accept the Steelworkers’ filing into the record for Case No.
LA-UM-683-E.
Member Neima joined in this Decision.
Member Baker’s concurrence begins on page 10.
9

BAKER, Member, concurring: I agree with the majority that the response of the United
Steelworkers of America (Steelworkers) to the exceptions filed by the Fontana Unified School
District (District) should be accepted. I write separately because I believe that a distinction
exists between defective service and a defective proof of service. The record establishes that
the Steelworkers’ response was timely served on the District. However, the proof of service
filed by the Steelworkers failed to list the District as a recipient of the response. In this regard
the proof of service was defective even though service had in fact been effectuated. In the
future, such technical defects should be informally corrected by the parties in consultation with
the Appeals Office. This matter is before the Board only because the Steelworkers
compounded their initial error by sending the corrected proof of service to the Board’s
Oakland office, instead of the Headquarters office in Sacramento. On these facts, I find that
good cause exists to accept the Steelworkers’ response.
10