Decision 2004M – City of Torrance

LA-CE-232-M

Decision Date: February 18, 2009

Decision Type: PERB Decision

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Perc Vol: 33
Perc Index: 43

Decision Headnotes

104.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD
104.02000 – Administrative Procedure Act as Affecting PERB Jurisdiction and Procedure

Pursuant to EERA section 3541.3(h), Chapter 4.5 of the Administrative Procedure Act (APA) applies to PERB unfair practice hearings but not to other types of PERB hearings. APA Chapter 4.5 contains both mandatory and optional provisions. Section 11440.30(b), contained in Chapter 4.5, prohibits the taking of testimony by telephone if a party objects. Neither the APA nor the Law Revision Commission comments to the APA state whether section 11440.30 is mandatory or optional. Some agencies have adopted regulations applying section 11440.30(b) to their hearings, while others have adopted regulations exempting their hearings from section 11440.30(b). In light of the legislative history of APA Chapter 4.5, which shows the Legislature intended to allow agencies to “opt in” to the optional provisions rather than making them defaults, these regulations indicate that section 11440.30 is an optional provision and is therefore not binding on PERB. Accordingly, the ALJ did not err in allowing the witness to testify by telephone over the other party’s objection.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

PERB Regulation 32300(a) requires that the statement of exceptions “state the specific issues of procedure, fact, law or rationale to which each exception is taken” and “state the grounds for each exception.” PERB Regulation 32300(c) states in full: “An exception not specifically urged shall be waived.” Respondent’s exceptions to ALJ’s proposed decision did not mention the substantive issue in the case but focused solely on whether a particular witness’ testimony should be stricken. Statements that the testimony “must be stricken from the record and disregarded when the board weighs the evidence in this matter” and that exclusion of the testimony “leaves the Charging Party substantially short of meeting their burden of proof” were not sufficient to trigger review of the ALJ’s ruling on the substantive issue because they failed to comply with Regulation 32300(a). Therefore, because the respondent waived any exception to the ALJ’s ruling on the merits of the case by failing to specifically except to it, that ruling is binding upon the parties but has no precedential effect with respect to other cases.