Los Angeles Unified School District (Association of Public School Supervisory Employees) (PERB 1180E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

ASSOCIATION OF PUBLIC SCHOOL
' SUPERVISORY EMPLOYEES,

Charging Party, Case No. LA-CE-3515

v. PERB Decision No. 1180

LOS ANGELES UNIFIED SCHOOL December 6, 1996

ee ee eee

DISTRICT,
Respondent.
Appearance: Wanda Robinson, Labor Relations Representative,

for Association of Public School Supervisory Employees.
Before Garcia, Johnson and Dyer, : Members.

DECISTON AND ORDER

JOHNSON, Member: This case is before the Public Employment

Relations Board (PERB or Board) on exceptions filed by the
Association of Public School Supervisory Employees (APSSE)
to a PERB administrative law judge's (ALJ) proposed decision
(attached). In his decision, the ALJ dismissed as untimely
filed APSSE's unfair practice charge which alleged that the
Los Angeles Unified School District violated section 3543.5 of

the Educational Employment Relations Act (EERA)* when it changed

‘*EERA is codified at Government Code section 3540 et seq.
Section 3543.5 provides, in pertinent part:

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

job duties 	and 	overtime 	opportunities 	for 	certain 	classified
supervisors 	without 	notice 	and an opportunity 	to meet 	and
discuss.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	hearing transcripts, 	exhibits
and APSSE's 	exceptions. 	The Board finds 	the ALJ's 	findings 	of
fact 	and conclusions 	of 	law to be 	free 	of prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself.
The 	complaint 	and unfair practice 	charge 	in Case
No. 	LA-CE-3515 	are hereby DISMISSED.
Member Dyer 	joined 	in this 	Decision.
Member Garcia's 	concurrence begins 	on page 	3.
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.
22

GARCIA, 	Member, 	concurring: 	I agree 	the case should be
dismissed however, 	please 	take notice 	that 	the Board itself,
through adoption of 	the 	administrative 	law judge's 	(ALJ)
rationale, 	now makes 	it 	clear that 	employee organizations are
expected 	to use 	reasonable 	diligence 	to uncover potential 	unfair
practices. 	As 	the ALJ correctly stated in his decision, 	the
burden 	is 	on 	the 	charging party 	to 	establish that 	an alleged
unfair practice 	charge was 	timely 	filed. 	The 	charging party
establishes 	timeliness 	by 	identifying when 	the 	charging party
knew or 	should have known of 	the alleged unfair practice. 	In his
decision, 	the ALJ makes 	it 	clear that 	the 	charging party must
prove 	that 	the 	unfair practice 	could not 	have been discovered
even with the 	exercise of 	reasonable diligence.1 Through our
decision today we are adopting the ALJ's 	statement, 	"If
individual 	employees 	are 	expected 	to 	exercise 	reasonable
diligence, 	employee 	organizations 	should also be 	expected to
exercise 	reasonable 	diligence."
1Page 11 	of 	the proposed decision 	citing California 	School
Employees Association 	(LaFountain) 	(1992) 	PERB Decision No. 	925;
International Union of Operating Engineers. 	Local 	501 	(Reich)
(1986) 	PERB Decision No. 	591-H.
33

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION OF 	PUBLIC 	SCHOOL
SUPERVISORY EMPLOYEES 	(APSSE),
Charging 	Party,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
)
)
) 	Unfair Practice
Case No. 	LA-CE-3515
PROPOSED DECISION
(5/7/96)
)
)
)
)
)
)
)
Appearances: 	Wanda Robinson, 	Representative, 	for Association of
Public School Supervisory Employees; 	Belinda D. 	Stith, 	Attorney,
for Los Angeles 	Unified School 	District.
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this case, 	a union that 	is 	a nonexclusive representative
of 	classified 	supervisors 	contends 	that 	a public 	school 	district
changed 	job 	duties 	and overtime 	opportunities without 	giving 	the
union notice 	and opportunity to discuss 	the 	changes. 	The
district 	contends 	that 	its 	conduct was 	lawful 	and that 	the
union's 	unfair practice 	charge 	was 	untimely.
On January 13, 	1995, 	the Association of Public School
Supervisory Employees 	(APSSE) 	filed an unfair practice 	charge
against 	the Los Angeles Unified School 	District 	(District). 	On
June 28, 	1995, 	the deputy general 	counsel of the Public
Employment 	Relations Board 	(PERB) 	issued a complaint, 	alleging
that 	the District 	had violated section 3543.5(a) 	and 	(b) 	of 	the
e

Educational 	Employment 	Relations 	Act 	(EERA).1 The 	complaint
alleged 	that 	the 	District 	violated 	these 	sections 	by 	making 	two
changes 	without 	giving APSSE 	notice 	and 	opportunity 	for
discussion: 	(1) 	during 	the 	1992-93 	school 	year, 	the 	District
added 	gardening 	work 	to 	the 	duties 	of 	classified 	supervisors; 	and
(2) 	on August 	17, 	1992, 	the District 	took 	away 	from classified
supervisors 	the 	opportunity 	to 	do 	overtime 	work 	when 	school
facilities 	were 	used 	by 	community groups 	under 	permit. 	The
complaint 	alleged 	that 	APSSE 	became 	aware 	of 	these 	changes 	for
the 	first 	time 	on or about 	July 2 8 , 	1994, 	and July 	14, 	1994,
respectively.
On July 	19, 	1995, 	the 	District 	answered the 	complaint,
denying 	that 	the 	District's 	conduct 	violated 	section 	3543.5(a)
and 	(b) 	and 	asserting 	that 	APSSE's 	charge 	was 	untimely. 	An
1 Unless otherwise 	indicated, 	all 	statutory 	references 	are 	to
the 	Government 	Code. 	The 	EERA 	is 	codified 	at 	Government 	Code
section 	3540 	and 	following. 	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.
22

informal 	settlement 	conference was held on August 	21, 	1995, 	but
the matter was 	not 	resolved.
A formal 	hearing was held on November 7, 	8, 	and 9, 	1995. 	At
the beginning of 	the hearing, 	the District made 	a motion to
dismiss, 	on the ground that APSSE's 	charge was untimely. 	The
motion was 	denied without prejudice. 	The 	administrative 	law
judge 	noted 	that 	timeliness 	would be 	an 	issue 	in the 	hearing and
that 	the burden of proof would be on the 	charging party 	(APSSE).
After 	the 	filing of post-hearing briefs, 	the matter was 	submitted
for proposed decision on February 1, 	1996.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer under the 	EERA.
APSSE 	is 	an employee 	organization and 	is 	a nonexclusive
representative 	of 	employees 	in a unit 	of 	the District's
classified 	supervisors.
Among 	the 	classified 	supervisors 	in 	the unit 	are plant
managers, 	who are part of 	the District's maintenance 	and
operations staff. 	Prior to July 29, 	1992, 	the employees
supervised by the plant 	managers were 	called Custodians;
thereafter, 	they were 	called building and grounds workers. 	The
plant 	managers were 	expected to participate 	in the work of 	the
employees 	they 	supervised.
The District 	employs 	at 	least 	800 plant managers. 	At 	some
school 	sites, 	the plant manager is 	the only maintenance 	and
operations 	employee 	on duty during 	the 	day.
33

Gardening
Prior to 1992, 	gardening at 	the District's 	school 	sites was
performed by 	separate 	gardening 	staff, 	who 	often 	roved 	from 	site
to site. 	In 1992, 	however, 	in the face of a budget crisis, 	the
District 	eliminated much of 	this 	gardening 	staff. 	On June 	29,
1992, 	when Custodians were 	renamed building and grounds workers,
their 	job 	description was 	changed 	to 	include 	gardening duties,
including 	"mowing, 	edging, 	and pruning." 	The 	job description for
plant managers was not changed. 	It was expected, 	however, 	that
at 	least 	at 	the 	school 	sites where plant managers were 	the only
maintenance 	and operations 	employees 	on 	duty during 	the 	daytime,
the plant 	managers would do 	the gardening.
In the 	fall 	of 	1992, 	school 	sites became responsible 	for
their own gardening. 	Lawn mowers were 	delivered to 	the 	school
sites, 	and plant managers were trained in gardening, 	with the
expectation that 	they would train building 	and grounds 	workers.
At 	the hearing, 	two plant managers 	testified that 	at 	a plant
managers' 	meeting 	in 	1992 	they were 	told that gardening would be
part 	of 	their duties. 	One 	testified that 	30 	to 	50 plant managers
were present 	at 	the meeting he attended, 	and that 	he 	in 	fact
starting mowing 	in 	1992. 	A work 	schedule he prepared 	in or
around November 	1992 	listed one 	of 	his 	jobs 	as 	"do gardening when
necessary 	(mow lawn, 	edge, 	trim, 	etc.)."
Another plant manager testified that 	at 	a plant managers'
meeting 	in 	September 	1992 	he 	was 	told that 	building and grounds
workers, 	not plant managers, 	would do gardening. 	The same plant
44

manager also testified, 	however, 	that 	in fact he or his assistant
mowed the 	lawn between 1992 	and 1995, 	unless parent volunteers
did it, 	because 	the building and grounds worker refused to do 	it.
Overtime 	for Use 	of 	School 	Facilities
Traditionally, 	the District 	has made 	its 	facilities
available 	to qualified community groups 	at 	no 	cost, 	under Civic
Center and Youth Services permits. 	Prior to 1992, 	the District
authorized 	overtime 	for maintenance 	and operations 	staff,
including plant 	managers, 	when 	school 	facilities were used under
permit. 	In 1992, 	however, 	the District changed this policy, 	in
the 	face 	of 	a budget 	crisis.
On August 17, 	1992, 	the District issued Memorandum No. 	9,
which was 	distributed to 	all 	District 	schools 	and offices.
Memorandum No. 	9 	stated in part 	that 	"custodial 	overtime will 	not
be 	allocated 	to 	clean-up 	after permit 	use." 	Each permitted group
was 	expected 	to 	leave 	facilities 	clean and ready 	for 	school 	use.
Supervision of permits, 	including approval 	or disapproval 	of
facility cleanliness, 	was 	assigned to the District's Youth
Services 	staff.
It 	is not 	entirely clear 	from the 	evidence presented at 	the
hearing to what 	extent Memorandum No. 	9 was distributed to plant
managers, 	or how and when plant 	managers were 	informed of 	the
change. 	The agenda 	for a plant managers' 	workshop on
September 10, 	1992, 	indicates that Memorandum No. 	9 was to be a
handout 	at 	the workshop. 	One plant manager testified, 	however,
that 	he was 	denied overtime 	after 	1992 	without 	any explanation.
55

The 	Civic 	Center and Youth Services permit 	forms, 	copies 	of which
went 	to plant 	managers, 	were 	revised 	in March 	1993 	and 	stated 	in
part, 	"Permit does not authorize time 	for custodial 	services."
APSSE's 	Involvement
In the 	spring of 	1994, 	APSSE did a mailing to the District's
classified supervisors, 	including plant managers. 	APSSE 	sent 	out
approximately 1700 pieces 	of mail, 	addressed to particular school
sites. 	The mailing gave 	notice 	of 	a meeting to be 	held on
June 	8, 	1994. 	The mailing also 	included a Business Reply Mail
card, 	with a 	"Comments" 	line below the 	following request:
Please 	inform us 	(below) 	if 	there 	are any
changes to your job description, 	such as,
transfer of work 	from a 	supervisory unit 	to 	a
non-supervisory unit, 	and/or volunteers 	or
contract vendors.
According to testimony, 	the mailing was 	made at 	least 	a week or
two 	before 	the planned meeting date.
There were two problems with the mailing: 	(1) 	several 	(if
not 	all) 	of 	the 	classified supervisors 	received the mailing after
the planned meeting, 	with the 	result 	that 	no one 	came 	to the
meeting; 	and 	(2) 	the 	return address on the Business 	Reply Mail
card was 	an old address of APSSE, 	with the 	result 	that 	cards
returned 	to 	that 	address 	were 	not 	promptly received by APSSE.
These 	two problems were 	exacerbated by a 	third: 	the 	forwarding
address APSSE had on 	file with the post 	office was 	the 	address 	of
an earthquake-damaged building 	from which APSSE was 	moving, 	with
the 	result 	that APSSE's 	receipt 	of 	Business 	Reply Mail 	cards was
further 	delayed.
66

One 	of 	the 	recipients 	of 	the mailing was 	Plant 	Manager
Richard Bernal. 	He wrote 	on the 	Business 	Reply Mail 	card the
comment, 	"We are now doing gardening," 	and mailed it 	on June 	10,
1994. 	According to 	testimony, 	APSSE actually received this 	card
(and 16 others) 	sometime after July 22, 	1994.
APSSE 	did receive 	one 	Business 	Reply Mail 	card prior 	to
July 22, 	1994. 	That 	card was not 	sent 	to the old APSSE address
but 	rather was placed 	in an envelope 	and 	sent 	to 	the newer
address 	(the 	earthquake-damaged building). 	The 	card was
unsigned, 	but 	it bore 	the note, 	"Rec'd on 6/13/94," 	and the
question, 	"Can you do anything about Youth Services?" 	Enclosed
in the 	envelope was 	a copy of District Memorandum No. 	9.
According 	to 	testimony, 	APSSE 	received 	the 	card and enclosure 	on
or after July 14, 	1994.
APSSE 	Representative 	Wanda 	Robinson 	testified 	that 	after
reading 	the 	Business 	Reply Mail 	cards 	she 	"started calling
members 	and getting more 	specific 	information as 	to 	gardening
services 	and the Youth 	[Services] 	Civic 	Center 	issue." 	She did
not 	testify whether or not 	she 	(or any other APSSE officials) 	had
knowledge 	of 	those 	issues prior to July 1994, 	when APSSE 	received
the 	cards. 	There was no testimony or other evidence as 	to
whether or not 	APSSE 	did mailings 	or 	scheduled meetings 	or
otherwise 	attempted 	to 	communicate 	with 	classified 	supervisors
about 	changes 	in 	their duties 	or working conditions prior to 	the
spring of 	1994.
7
7

ISSUES
(1) 	Was 	the 	charge 	timely 	filed?
(2) 	If 	the 	answer to N o . 	1 	is y e s , 	did the District 	violate
section 	3543.5(a) 	and 	(b) 	by 	changing 	the 	duties 	and overtime
opportunities 	of 	plant 	managers 	without 	giving APSSE 	notice 	and
opportunity 	for 	discussion?
CONCLUSIONS 	OF 	LAW
Timeliness 	of 	the 	Charge
EERA 	section 	3541.5(a)(1) 	states 	that 	PERB 	shall 	not
"[i]ssue 	a 	complaint 	in 	respect 	of 	any 	charge 	based 	upon 	an
alleged 	unfair 	practice 	occurring 	more 	than 	six 	months 	prior 	to
the 	filing of 	the 	charge." 	In 	California 	State 	University, 	San
Diego 	(1989) 	PERB 	Decision N o . 	718-H, 	PERB 	held 	that 	the 	parallel
provision 	in 	section 	3563.2(a) 	of 	the 	Higher 	Education 	Employer-
Employee 	Relations 	Act 	constituted 	a 	jurisdictional 	bar 	to
charges 	filed 	outside 	the 	prescribed 	six-month 	time 	period. 	PERB
noted 	that 	the 	statutory 	provision 	used 	mandatory 	("shall 	not")
language 	and 	that 	the 	legislative 	history 	indicated 	an 	intent 	to
eliminate 	"stale" 	claims.
PERB 	therefore 	overturned 	its 	previous 	decision 	in 	Walnut
Valley Unified School 	District 	(1983) 	PERB 	Decision N o . 	289, 	in
which 	PERB 	had 	treated 	Untimeliness 	as 	an 	affirmative 	defense
subject 	to 	waiver. 	In The 	Regents 	of 	the 	University of
California 	(UC-AFT) 	(1990) 	PERB Decision No. 	826-H, 	PERB made
clear 	that 	a 	charging 	party 	now 	had 	the 	burden 	to 	prove
timeliness 	as 	part 	of 	its 	prima 	facie 	case.
8

Given the 	statutory language, 	the present 	unfair practice
charge 	and complaint 	would appear 	to be 	untimely on 	their 	face.
The 	complaint 	alleges unfair practices 	occurring during the 	1992-
93 	school year, 	but 	the unfair practice charge was not 	filed
until 	January 13, 	1995, 	more than 18 months after the end of 	the
1992-93 	school year. 	If 	the 	jurisdictional 	bar against 	any
charge 	based upon 	an unfair practice 	"occurring" 	more 	than 	six
months prior to 	the 	filing of 	the 	charge were 	to be 	interpreted
literally, 	the 	charge 	and complaint 	in the present 	case would
have 	to be 	dismissed on their 	face.
PERB has 	indicated, 	however, 	that 	the six-month limitation
period does 	not 	necessarily begin 	to 	run when 	an unfair practice
occurs. 	PERB has 	stated, 	"The 	statutory period begins 	to run
once the 	charging party knows, 	or should have known, 	of 	the
conduct 	underlying 	the 	charge." 	(University of 	California
(AFSCME) 	(1993) 	PERB Decision No. 	1023-H and Regents of the
University of 	California 	(Alderson) 	(1993) 	PERB Decision No.
1002-H, 	both citing 	Fairfield-Suisun Unified School 	District
(1985) 	PERB Decision No. 	547 	and Healdsburg Union High School
District 	(1984) 	PERB Decision No. 	467.)
Where 	a 	charge 	has been 	filed more 	than six months 	after an
alleged unfair practice 	occurred, 	the 	burden on the 	charging
party 	is 	therefore 	to prove both that 	it 	first 	knew and that 	it
first 	"should have 	known" 	about 	the 	alleged conduct 	within 	six
months before 	the 	charge was 	filed. 	(Phrased differently, 	the
burden on 	the 	charging party is 	to prove both that 	it 	did not
9

know and that 	it 	should not 	have 	known about 	the 	conduct 	more
than six months before the 	charge was 	filed.) 	In the present
case, 	where the charge was 	filed on January 13, 	1995, 	APSSE has
the burden of proving both that 	it 	first 	knew and that 	it 	first
should have 	known 	about 	the 	alleged changes 	on or after 	July 	13,
1994.
At 	the hearing, 	APSSE 	failed to prove 	that 	it 	first 	knew
about 	the 	alleged changes on or after July 13, 	1994. 	APSSE
Representative 	Wanda Robinson 	did 	testify that 	it 	was 	after 	she
received the 	Business 	Reply Mail 	cards 	(on or after July 14,
1994, 	and sometime after July 22, 	1994) 	that 	she 	"started calling
members 	and getting more 	specific 	information as 	to 	the 	gardening
services 	and the Youth 	[Services] 	Civic 	Center 	issue." 	Neither
she 	nor any other witness 	actually testified, 	however, 	that 	this
was 	the 	first 	time 	that APSSE 	knew about 	the 	alleged changes.
Because 	the burden of proof was 	on APSSE, 	the 	lack of 	such
testimony 	(or other evidence) 	precludes 	a 	finding that APSSE's
charge was 	timely.
APSSE 	also 	failed to prove 	that 	it 	first 	"should have 	known"
about 	the alleged changes on or after July 13, 	1994. 	In State of
California 	(Department of Corrections) 	(1995) 	PERB Decision No.
1101-S, 	PERB 	adopted a dismissal 	letter stating in part 	that 	the
six-month 	limitation period began 	to 	run when the 	conduct
constituting 	the 	unfair practice 	was 	discovered 	"or 	could
reasonably have been discovered." 	In that 	case, 	the 	charge was
dismissed 	as 	untimely because 	the 	charging party 	"failed 	to
10

demonstrate why 	[it] 	was not 	aware of 	the violation" 	until 	the
six months before 	the 	charge was 	filed.
In cases 	in which individual 	employees 	have 	filed charges
alleging 	that 	employee 	organizations 	violated the 	duty of 	fair
representation, 	PERB has 	held that 	the 	limitation period began 	to
run when the 	employees 	"in the 	exercise of 	reasonable diligence"
knew or 	should have 	known 	that 	further assistance 	from the
organization was 	unlikely. 	(California 	School 	Employees
Association 	(LaFountain) 	(1992) 	PERB Decision No. 	925;
International Union of Operating Engineers, 	Local 	501 	(Reich)
(1986) 	PERB Decision No. 	591-H.) 	If 	individual employees are
expected to 	exercise 	reasonable 	diligence, 	employee 	organizations
should also 	be 	expected 	to 	exercise 	reasonable 	diligence.
It 	appears 	from these 	cases 	that 	a 	charging party must 	prove
that, 	even with the exercise of reasonable diligence, 	the
charging party 	could not 	reasonably have 	discovered 	the 	alleged
unfair practice until 	six months before 	the 	charge was 	filed.
Logically, 	the more 	obvious 	the alleged unfair practice, 	and the
longer the period of 	time before 	its 	discovery, 	the 	stronger must
be 	the 	charging party's 	showing 	that 	reasonable 	diligence 	still
would not 	have 	uncovered 	it.
In the present 	case, 	the 	alleged unfair practices 	appear to
have been relatively obvious, 	rather than subtle 	or secret. 	The
addition of 	gardening duties was 	announced at 	one meeting of 	30
to 50 plant managers, 	and possibly other meetings. 	The reduction
of 	overtime opportunities was 	described in Memorandum No. 	9,
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which was 	distributed to all 	District 	schools 	and offices, 	and
which was 	listed as a handout 	at 	a plant managers' 	workshop. 	It
appears 	likely that 	many or most 	of 	the 	District's 	800 	plant
managers were 	aware 	of 	these 	changes, 	and were 	affected by them,
well 	before 	the 	end of 	the 	1992-93 	school 	year.
APSSE must 	prove 	that 	it 	nonetheless 	could not 	reasonably
have 	discovered the 	changes, 	even with the 	exercise 	of 	reasonable
diligence, 	earlier than July 13, 	1994, 	over a year after the end
of 	the 	1992-93 	school year. 	This APSSE 	failed to prove. 	There
was 	no 	testimony or other 	evidence 	that APSSE 	did mailings 	or
scheduled meetings 	or 	otherwise 	attempted 	to 	communicate 	with
plant 	managers 	(or other classified supervisors) 	about 	changes 	in
their duties 	or working conditions prior to 	the 	spring of 	1994.
If APSSE, 	as a reasonably diligent nonexclusive representative,
had made 	such an effort 	as 	rarely as 	once or twice 	a year, 	it
might 	reasonably have 	discovered 	the 	changes 	affecting plant
managers prior to July 13, 	1994.
Furthermore, 	it 	appears 	that APSSE might at 	least 	have
discovered the change 	in duties prior to July 13, 	1994, 	if 	it had
been 	reasonably diligent 	in 	conducting 	its 	mailing 	in 	the 	spring
of 	1994. 	Plant Manager Richard Bernal, 	who wrote on the Business
Reply Mail 	card the 	comment, 	"We are now doing gardening," 	mailed
the 	card on June 	10, 	1994. 	If 	the Business Reply Mail 	card had
not 	borne 	an old APSSE 	address, 	APSSE presumably would have
received Bernal's 	card sometime 	in June 	1994. 	Sending 	some 	1700
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.

Business 	Reply Mail 	cards 	with an old address 	does 	not 	appear 	to
represent 	reasonable 	diligence.
It 	is 	therefore 	concluded that 	the 	charge was 	not 	timely
filed and must 	be 	dismissed, 	because APSSE did not prove 	that 	it
first 	knew and 	first 	should have 	known 	about 	the 	alleged unfair
practices 	within 	six months before 	the 	charge was 	filed.
The 	Alleged Unilateral 	Changes
Having concluded that 	the 	charge was untimely filed, 	it 	is
not necessary, 	nor is 	it appropriate, 	to address the lawfulness
of 	the 	alleged unilateral 	changes.
Based upon PERB's 	interpretation of 	section 3541.5(a), 	if a
charge 	is 	not 	filed within the 	relevant 	six-month period, 	PERB
has 	no 	jurisdiction over 	the 	matter and has 	no power 	to 	decide
the 	substantive 	issues presented 	for 	its 	determination.
PROPOSED 	ORDER
Based upon the 	foregoing findings of 	fact, 	the 	entire 	record
herein, 	and the conclusions of 	law set 	forth above, 	it 	is 	found
that 	the 	complaint 	must 	be 	dismissed because 	the Association 	of
Public 	School 	Supervisory Employees 	(APSSE) 	failed to 	establish a
prima 	facie case of 	timeliness of 	the charge. 	Thus, 	the
complaint 	issued against 	the 	Los Angeles 	Unified 	School 	District
must 	be 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
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
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20 	days of 	service of 	this Decision. 	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. 	(See Cal. 	Code of Regs.,
tit. 	8, 	§ 	32300.) 	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 	. . . " 	(See 	Cal. 	Code of Regs., 	tit. 	8,
§ 32135; 	Code Civ. 	Proc. 	§ 	1013 	shall apply.) 	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 of Regs., 	tit. 	8, 	§§ 32300, 	32305
and 	32140.)
THOMAS 	J. 	ALLEN
Administrative 	Law 	Judge
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