San Diego Unified School District (PERB 0631E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ELIZABETH I. 	BADDOUR,
Charging 	Party,
v.
SAN 	DIEGO 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1986
PERB 	Decision No. 	631
August 18, 	1987
Appearances: 	Phin & de la 	Flor by George 	L. 	de la 	Flor, 	for
Elizabeth I. 	Baddour; 	Jose A. 	Gonzales, 	Assistant General
Counsel, 	for 	San 	Diego Unified 	School 	District.
Before Hesse, 	Chairperson; 	Shank and Cordoba, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before 	the 	Public 	Employment
Relations 	Board 	(PERB or Board) 	on 	exceptions 	filed by the
San 	Diego 	Unified 	School 	District 	(Respondent 	or District) 	to
the 	proposed 	decision 	of 	the 	PERB 	administrative 	law 	judge
(ALJ). 	The ALJ 	found 	that 	the 	District 	violated 	section
3543.5(a) 	of 	the Educational 	Employment 	Relations Act 	(EERA)1
when 	it 	terminated 	Elizabeth 	I. 	Baddour 	(Charging 	Party) 	from
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein are 	to the 	Government Code. 	Section 	3543.5 provides, 	in
pertinent part, 	as follows:
It 	shall 	be unlawful 	for 	a public 	school
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the 	position 	of 	school 	bus 	driver by 	denying 	her 	representation
at 	three 	evaluation 	sessions 	and 	by 	dismissing her 	in 	reprisal
for her participation 	in protected 	activities.
employer 	to:
(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.
The 	ALJ 	summarily disposed 	of 	the 	District's 	preliminary
motion 	to dismiss 	that was 	based 	upon 	the 	doctrine 	of
collateral 	estoppel. 	We 	are 	remanding this 	case 	for 	further
hearing 	on 	that 	issue 	for 	reasons 	which 	follow.
FACTS
On 	August 	4, 	1983, 	Charging 	Party was 	served with a 	notice
of 	intention 	to dismiss her 	from the 	district, 	together 	with 	a
copy of 	the 	charges 	in 	support 	thereof. 	Charging 	Party
requested a hearing 	to contest 	the 	dismissal 	charges. 	The
hearing, 	which 	lasted 	fourteen days, 	commenced on 	September 	27,
1983, 	and concluded on November 	5, 	1983. 	Charging Party was
represented by counsel 	at 	that hearing. 	On November 	7, 	1983,
the 	hearing 	officer 	issued his 	decision 	upholding 	Charging
Party's 	termination.
On May 17, 	1984, 	Charging 	Party 	filed an unfair practice
charge 	with 	the 	Public 	Employment 	Relations 	Board. 	A complaint
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issued and a hearing, 	consisting of 	eleven days, 	was 	conducted
before 	the ALJ between November 27, 	1984, 	and January 2, 	1985.
At 	the 	inception of 	the hearing, 	the 	District moved 	to
dismiss 	the 	unfair practice 	charge 	on 	the 	ground 	that 	the
Charging 	Party 	was 	collaterally 	estopped 	from 	relitigating 	the
issue 	of 	whether 	or 	not 	she 	was 	denied 	representation 	and
dismissed 	in 	reprisal 	for participating 	in 	protected
activities. 	Respondent argued that, 	in 	the hearing held before
the 	civil 	service 	commission 	for 	the 	District 	and 	under 	the
Merit 	System Rules 	(Respondent's 	Exhibit 	Q ) , 	the 	very 	issues 	now
being 	litigated before 	PERB 	were 	raised 	as 	affirmative 	defenses
and 	fully 	litigated, 	and 	the 	findings 	and 	decision 	of 	the
hearing 	officer 	(Respondent's 	Exhibit 	E) 	were 	conclusive. 	The
2The 	"Findings 	and Decision 	of 	the 	Hearing 	in 	the Matter
of 	Dismissal 	of Ms. 	Elizabeth Baddour 	from 	Employment 	with 	the
San 	Diego Unified School 	District" 	were, 	in pertinent part, 	as
follows:
10. 	The allegation 	that 	a 	conspiracy was 	in
place 	to 	"get 	rid" 	of 	the 	Employee 	was 	not
supported by credible 	evidence. 	Rather, 	the
District 	was 	acting 	in a 	reasonable manner
of 	preparing 	documentation 	consistent 	within
due 	process 	prior 	to 	exercising 	discretion
to discharge 	the 	Employee.
11. 	Harassment 	of 	the 	Employee was 	not
proven. 	The 	circumstances brought 	out by
the 	Employee 	related 	to 	supervisory
practices 	which 	were 	reasonable but 	not 	to
the 	liking of the 	Employee.
12. 	The 	allegation of 	retaliation by 	the
District 	against 	the 	Employee 	was 	not
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proven. 	Evidence 	of prior 	complaints by 	the
Employee 	was 	not 	linked 	to the 	substances 	of
the 	dismissal 	of 	the 	Employee.
13. 	Allegations 	of unequal 	treatment or
being 	singled 	out 	were 	not 	proven because
fact patterns 	presented 	were 	not 	similar 	to
those 	in this 	instance.
15. 	Due process 	was 	afforded 	the 	Employee
throughout 	the 	Employee's 	work 	history. 	The
Employee 	sought 	to define 	Collective
Bargaining 	provisions 	and Merit 	System 	Rules
in a manner 	convenient 	to the 	Employee 	for
the 	purpose 	of 	justifying 	the 	Employee's
conduct 	of 	failure 	to 	follow 	reasonable
rules.
16. 	The 	Employee's 	claim 	that 	the 	District
was 	exercising 	this 	dismissal 	action due 	to
the 	Employee's 	exercise 	of personal 	rights
was 	without merit. 	The 	Employee 	sought 	to
exercise 	personal 	rights 	and 	such 	exercise
became 	wrongful 	when 	such 	exercise
interfered 	with 	the 	rights 	of 	fellow
employees 	and 	the 	District's 	authority.
4
• 	• 	• 	• 	•
4
District's 	motion 	based 	on 	collateral 	estoppel 	was 	denied 	at
that 	time, 	but 	the 	District 	renewed 	the 	motion 	at 	the 	end 	of
Charging 	Party's 	presentation 	and 	it 	was 	again 	denied. 	The
District, 	inter alia, 	excepted 	to the ALJ's 	summary dismissal
of its motion.3
DISCUSSION
In 	State 	of 	California 	(Department 	of 	Developmental
Services) 	(1987) 	PERB Decision No. 	619-S, 	the Board held the
3The 	District 	also 	excepted 	to 	the 	ALJ's 	proposed
decision 	on 	its 	merits. 	For the 	reasons 	which 	are 	explained
below, 	we 	need not 	address 	those exceptions.

Charging 	Party 	was 	collaterally 	estopped 	from 	relitigating 	the
issue 	of 	reprisal 	against 	a 	state 	employee 	for 	union 	activity
where 	the 	issue had been 	raised 	and 	the parties had 	a 	full
opportunity 	to 	litigate 	the 	issue 	in 	a 	disciplinary hearing
before 	the 	State 	Personnel 	Board. 	The 	seminal 	precedent 	upon
which 	the 	Board 	relied 	in 	State 	of 	California 	(Department 	of
Developmental Services), 	supra, 	is People v. 	Sims 	(1982) 	32
Cal.3d 468, 	477 	[186 Cal.Rptr. 	77]. 	In Sims, 	the California
Supreme 	Court 	held 	that 	the 	theory of 	collateral 	estoppel
barred 	the 	people 	of 	the 	State 	of 	California 	from proceeding
with 	criminal 	proceedings 	for 	alleged 	welfare 	fraud because 	in
a 	hearing 	before 	the 	State 	Department 	of 	Social 	Services
involving 	the 	same 	issue 	the 	defendant 	in 	Sims 	was 	exonerated
of 	any wrongdoing.
In 	State 	of 	California 	(Department 	of 	Developmental
Services), 	supra, 	Decision No. 	619-S, 	the Board, by adopting
the 	proposed 	decision of 	the ALJ, 	said:
Collateral 	estoppel 	traditionally has 	barred
relitigation of an 	issue 	if 	(1) 	the 	issue 	is
identical 	to one 	necessarily decided 	at 	a
previous proceeding; 	"(2) 	the previous
[proceeding] 	resulted 	in a 	final 	judgment on
the merits; 	and 	(3) 	the party against whom
collateral 	estoppel 	is 	asserted 	was 	a party
or 	in privity with 	a 	party at 	the 	prior
[proceeding]" 	People v. Sims, 	supra, 	32
Cal. 3d at p. 484" (citations omitted).
For 	cases 	involving 	the 	collateral 	estoppel
effect 	of administrative 	decisions, 	the
California 	Supreme Court 	in 	People 	v. 	Sims,
supra, 	adopted 	the 	standards 	formulated by
the 	United 	States 	Supreme 	Court 	in 	United
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States v. 	Utah Constr. 	& Min. 	Co. 	(1966) 	384
U.S. 	394 	[16 L.Ed.2d 642, 	86 S.Ct. 	1545].
There, 	the 	United States 	Supreme 	Court
stated: 	"When 	an 	administrative 	agency 	is
acting 	in 	a 	judicial 	capacity and 	resolved
disputed 	issues 	of 	fact properly before 	it
which 	the parties have had 	an 	adequate
opportunity to litigate, 	the 	courts have 	not
hesitated 	to enforce 	repose." 	(Id., 	at
p. 	422.) 	Thus, 	collateral estoppel effect
will 	be 	granted 	to 	an 	administrative
decision made by an agency 	(1) 	acting 	in a
judicial 	capacity, 	(2) 	to resolve properly
raised 	disputed 	issues 	of 	fact 	where 	(3) 	the
parties had 	a 	full 	opportunity 	to 	litigate
those 	issues. 	(Id., 	at pp. 	14-15.)
In 	Kern 	County Office of 	Education 	(1987) 	PERB 	Decision
No. 	630, 	though decided on other grounds, 	the Board 	reaffirmed
the 	applicability of 	the 	doctrine 	of 	collateral 	estoppel. 	Kern
involved a 	local 	school 	district where, 	as here, 	a hearing was
held 	and 	a 	decision 	rendered by a 	personnel 	commission before 	a
charge 	of 	a 	violation 	under EERA was 	filed with PERB.
We 	find 	the 	District's 	preliminary motion 	made 	on 	the 	first
day of hearing 	before 	PERB 	to have been 	sufficient 	to 	raise 	the
issue 	of 	collateral 	estoppel 	to the ALJ. 	We 	note 	that 	the
ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law 	fail 	to mention
the 	findings 	and 	decision 	of 	the 	San 	Diego 	Civil 	Service
Commission.
Based 	on 	the 	above 	analysis, 	we hold 	that 	the ALJ was 	bound
to 	consider 	the 	San 	Diego 	Civil 	Service 	Commission's 	prior
determination 	on 	the 	issue 	of 	Charging 	Party's 	claimed 	denial
of 	the 	right 	to 	representation 	and 	separation based 	on 	reprisal
to determine what, 	if any, 	effect 	collateral 	estoppel 	would
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have 	on 	this proceeding before 	PERB. 	Since we have 	concluded
that 	the 	ALJ was 	bound 	to 	give 	due 	consideration 	to 	the
San Diego Civil 	Service 	Commission's 	prior 	finding, 	we 	need 	not
address 	the 	remaining 	issues 	raised 	in 	the 	District's
exceptions.
CONCLUSION
We 	conclude 	that, 	with 	regard 	to the 	issue of 	collateral
estoppel, 	the ALJ did 	not provide 	the parties 	an opportunity to
make 	a 	complete 	presentation 	to determine 	if 	all 	elements 	of
collateral 	estoppel, 	consistent with this opinion, 	were present
so 	that 	an 	informed 	ruling 	could be 	made.
ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions
of 	law, 	this 	case 	is 	remanded 	for 	further hearing 	on 	the 	issue
of 	the 	applicability of 	collateral 	estoppel 	to this 	proceeding.
Chairperson 	Hesse 	and Member 	Cordoba 	joined 	in 	this 	Decision.
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