Los Angeles Unified School District (PERB 0674E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
GLADYS M. 	BRACEY,
Charging 	Party,
v.
LOS 	ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-2307
PERB Decision No. 	674
June 8, 	1988
Appearances; 	Gladys M. 	Bracey, 	on her own behalf; 	O'Melveny &
Myers, 	by Framroze M. 	Virjee 	for 	the Los Angeles 	Unified 	School
District.
Before Hesse, 	Chairperson, 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	Charging Party Gladys M. 	Bracey appeals 	the
attached 	proposed 	decision 	of 	a 	Public 	Employment 	Relations
Board 	(PERB or 	Board) 	administrative 	law 	judge 	(ALJ) 	dismissing
her 	charge 	alleging 	that 	Respondent 	Los 	Angeles 	Unified 	School
District 	(District) 	violated 	section 	3543.5(a) 	of 	the
Educational 	Employment 	Relations 	Act1 when 	it placed her 	on
1The 	Educational 	Employment 	Relations 	Act 	(EERA or Act)
is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq. 	Unless
otherwise 	indicated, 	all 	statutory 	references herein are 	to 	the
Government 	Code. 	Government 	Code 	section 	3543.5(a) 	provides 	as
follows:
It 	shall be 	unlawful 	for 	a public 	school
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.
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unpaid, 	mandatory 	sick 	leave 	for 	a 	two-year 	period pursuant 	to
Education 	Code 	section 44942. 	The 	charge was 	dismissed due 	to
Charging 	Party's 	refusal 	to proceed.
We have 	reviewed 	the ALJ's 	proposed 	decision 	in 	light 	of
the 	appeal 	and, 	finding 	it 	free 	from prejudicial 	error, 	adopt
it 	as 	the 	decision of 	the 	Board 	itself.
In 	addition 	to PERB 	Regulation 	sections 	32170(d) 	and
(m)2 relied 	on by 	the ALJ 	to 	support 	the 	instant 	dismissal,
we 	find 	PERB 	Regulation 	sections 	32170(c) 	and 	(f)3 to be 	of
equal 	import here. 	Subsection 	(c) 	vests 	the ALJ with 	the power
2PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	Title 8, 	Part 	III, 	section 31001 et seq.
Regulation 	section 	32170 	sets 	out 	the powers 	and 	duties 	of 	the
Board 	agent 	conducting a hearing. 	Section 	32170(d) 	and 	(m)
states:
(d) 	Regulate 	the 	course 	and 	conduct 	of 	the hearing,
including 	the 	power 	to exclude 	a witness 	from 	the hearing
room ;
(m) 	Carry out 	the duties 	of 	administrative 	law 	judge 	as
provided 	or 	otherwise 	authorized by 	these 	regulations 	or 	by
the 	applicable Act.
3Section 32170(c) 	and 	(f) 	states:
(c) 	Issue 	subpoenas 	and 	rule upon petitions 	to revoke
subpoenas;
(f) 	Rule on objections, 	motions 	and questions of procedure;
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and 	the 	duty 	to 	issue 	subpoenas 	and 	rule 	upon petitions 	to
revoke 	subpoenas, 	while 	subsection 	(f) 	expressly grants 	the
authority to 	rule 	on objections, 	motions 	and questions 	of
procedure. 	It 	necessarily follows 	that, 	since PERB Regulation
section 	32170 	commands 	the ALJ 	to 	exercise 	the powers 	and
duties 	set 	out 	therein, 	the parties 	to an action cannot 	simply
refuse 	to participate 	merely because 	they 	disagree 	with 	the
ruling(s). 	Charging Party must, 	as 	stated 	in Los Angeles
Unified 	School 	District 	(Siamis) 	(1984) 	PERB Decision No. 	464,
wait 	to determine 	if 	the 	ruling(s) 	will 	work 	to her prejudice
and 	then 	file 	exceptions, 	for: 	"(d)isruption of 	the duly
scheduled 	procedures 	and 	hearing by 	refusing 	to 	appear 	is 	not
an appropriate self help measure." 	Siamis, 	supra, 	at p. 	19.
ORDER
Based on 	the 	foregoing, 	the unfair 	practice 	complaint 	in
Case NO. 	LA-CE-2307 	is 	DISMISSED WITHOUT LEAVE TO AMEND.
Chairperson 	Hesse 	and Member 	Craib 	joined 	in 	this 	Decision.
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3

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
GLADYS M. 	BRACEY,
Charging 	Party,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Unfair 	Practice
Case No. 	LA-CE-2307
PROPOSED 	DECISION
(4/15/87)
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Appearances: 	Gladys M. 	Bracey, 	in propria persona; 	O'Melveny &
Myers by Framroze M. 	Virjee, 	Attorney, 	for Los Angeles Unified
School District.
Before Barbara E. 	Miller, 	Administrative Law Judge.
I. 	STATEMENT OF THE CASE
Gladys 	M. 	Bracey 	(hereinafter 	Bracey or 	Charging 	Party)
filed 	an 	unfair 	practice 	charge 	against 	the Los 	Angeles 	Unified
School 	District 	(hereinafter 	District 	or 	Respondent) 	on
December 30, 	1985. 	The Charge, 	which was 	amended on April 	28,
1986, 	alleges 	the Charging 	Party was 	the victim of 	numerous
retaliatory 	acts 	because 	of 	reports 	she made 	to 	the District's
Assistant 	Superintendent 	of 	Special 	Education 	and 	to 	her
exclusive 	representative, 	United Teachers 	of Los Angeles
(hereinafter Union). 	It 	is 	specifically alleged that 	the
District 	removed 	Bracey 	involuntarily 	from her 	position 	as 	a
teleclass 	teacher 	at Widney High 	School 	in violation of 	the
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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Educational 	Employment Relations Act 	(hereinafter EERA). l
For 	the most 	part, 	this 	Proposed Decision does 	not 	address
the merits 	of 	the 	charge 	filed by Gladys 	Bracey. 	The case 	is
being 	dismissed because of Mrs. 	Bracey's 	refusal 	to 	proceed.
What 	follows 	is 	an 	outline 	of 	the 	events 	which 	preceded 	this
Proposed 	Decision 	and 	an outline 	of 	the 	positions 	of 	the
parties. 	This 	background 	information 	is 	provided 	so 	that 	the
dismissal 	can be placed 	in 	the 	appropriate 	context.
II. 	OUTLINE OF PROCEDURAL HISTORY
After 	the Charge was 	filed 	it was 	assigned 	to 	a 	Regional
Attorney 	from the Office 	of 	the General 	Counsel 	of 	the 	Public
Employment 	Relations 	Board 	(hereinafter 	Board 	or 	PERB) 	for
purposes of 	an investigation. 	On May 1/ 	1986, 	the Regional
Attorney 	issued 	a 	Complaint 	simultaneously with 	a 	partial
dismissal.2 The 	Complaint 	alleges 	that 	the 	District 	placed
Bracey on mandatory 	sick 	leave due 	to 	mental 	illness 	because 	of
her 	protected 	activity.
An 	informal 	conference was 	conducted 	before 	an
Administrative Law Judge of 	the 	PERB 	on June 4, 	1986. 	When 	the
parties were unable 	to 	resolve their dispute, 	it was 	assigned
1 The 	EERA 	is 	codified 	beginning 	at 	Government 	Code
section 3540, 	et 	seq. 	Unless otherwise 	indicated, 	all
statutory 	references 	are 	to 	the Government Code.
2Bracey 	appealed 	the 	partial 	dismissal 	but 	the 	Board
upheld 	the 	Regional 	Attorney 	in Los 	Angeles 	Unified 	School
District 	(1986) 	PERB Decision No. 	588.
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to 	the undersigned 	for 	purposes 	of 	formal 	hearing. 	The 	formal
hearing convened on September 	10, 	11, 	and 12, 	1986. 	The
hearing was 	scheduled to 	reconvene on November 	17, 	1986, 	at
10:00 	a.m. 	continuing through November 	20, 	1986. 	Those dates
were 	cancelled 	after 	the undersigned was 	informed, 	on 	the
morning 	of November 	17, 	of 	a medical 	emergency involving 	the
Charging 	Party.
The 	hearing was 	scheduled 	to 	and 	did 	reconvene 	on
January 20, 	1987. 	On that date, 	the Charging Party refused 	to
go 	forward 	if 	Jay Davis, 	the principal 	at Widney High School,
remained 	in 	the 	hearing 	room. 	Thereafter, 	the Charging 	Party
failed 	to 	show cause why Davis 	should 	be 	excluded 	or, 	in 	the
alternative, 	she failed to 	indicate a willingness 	to go
forward. 	On February 10, 	1987, 	the 	record was 	closed 	and on
February 23, 	1987, 	after 	receipt of the final 	transcript, 	the
case was 	submitted 	for 	proposed 	decision.
III. 	BACKGROUND
Due 	to 	the premature 	termination of 	the 	formal 	hearing, 	few
factual 	findings 	regarding 	the merits 	of 	this 	case 	can 	be
made. 	In order 	to 	fully 	appreciate 	the 	discussion 	following,
however, 	an effort will 	be made to 	summarize the case 	as
reflected 	by 	the 	record 	and 	by 	the 	positions 	of 	the 	parties 	as
stated 	in 	their 	various 	pleadings 	and 	arguments.
Gladys 	Bracey worked 	for 	the 	Los 	Angeles 	Unified 	School
District 	as 	a 	teacher 	for 	approximately 25 years. 	Ever 	since
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she was 	injured on 	the 	job 	in 	1969, 	Bracey has 	been primarily a
teleclass 	teacher; 	she 	taught 	handicapped 	students 	over 	the
telephone. 	Not 	long 	after 	her 	injury, 	Bracey claims 	the
District 	disputed 	her 	need 	to 	be 	a 	teleclass 	teacher 	on 	a
full-time basis. 	From the beginning, 	she claims, 	efforts were
made 	to 	force her 	to 	teach 	in 	a 	conventional 	classroom.
In 1973, 	after 	suffering 	some additional 	injuries, 	Bracey
was 	placed 	in 	a 	teleclass 	classroom on 	a 	full-time basis. 	That
was 	basically her 	assignment 	until 	the 	events 	which 	gave 	rise
to 	the 	filing 	of 	the unfair 	practice charge. 	As 	the 	teleclass
program evolved, 	however, 	Bracey did have her 	complaints. 	In
approximately 	1978, 	Bracey claims 	the District 	started
requiring 	teleclass 	teachers 	to 	substitute 	in 	conventional
classrooms, 	primarily during 	the 	times 	when 	teleclass 	programs
were 	not 	in 	session, 	but 	occasionally during 	the 	regular year
as well. 	Moreover, 	Bracey complained that preference was 	given
to 	the 	employment 	of 	substitutes 	for 	conventional 	classrooms
rather 	than 	teleclass 	classrooms when 	a 	teleclass 	teacher 	and 	a
classroom teacher were 	ill. 	Bracey claims 	the District's
preference 	for 	classroom 	teachers 	and 	the 	cutbacks 	on working
conditions 	for 	teleclass 	teachers were 	a 	function 	of 	the
District's 	disregard 	for 	teleclass 	teachers 	who 	were 	frequently
teachers 	who 	had 	filed worker's 	compensation 	claims 	against 	the
District.
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In recent years, 	the number of 	students 	eligible 	for
teleteaching 	has 	declined 	dramatically. 	The District 	suggests
that 	the 	decline 	is 	attributable 	to 	the 	increase 	in 	facilities
accessible 	to 	the 	handicapped. 	Bracey 	suggests 	that 	the
decline 	in enrollment 	is 	attributable 	to 	the District's
inadequate programming. 	In any event, 	in January 1985, 	the
District 	determined 	that 	in order 	to 	retain 	all 	the
teleteachers 	then employed 	at Widney High School, 	it would 	be
necessary to 	have 	each 	teacher 	provide 	instruction 	in 	a
conventional 	classroom 	for 	one 	class 	period 	per 	day.
Bracey 	and 	District 	officials 	agree 	that 	Bracey 	refused 	to
teach 	in 	a 	conventional 	classroom, 	claiming 	she was 	restricted
because 	of 	her worker's 	compensation 	injury. 	Bracey claimed
the 	District 	already 	had 	information 	from her 	doctor 	which
precluded 	the 	District 	from 	assigning 	her 	to 	a 	conventional
classroom. 	Jay Davis 	testified 	he 	had 	no 	objection 	to 	Bracey
not 	teaching 	in 	a 	conventional 	classroom but 	she had 	to 	get 	a
waiver 	pursuant 	to 	the District's 	reasonable 	accommodation
procedures. 	Davis 	testified 	that 	he 	told 	Bracey 	she would 	be
excused 	from 	teaching 	in 	a 	classroom while 	he 	gave 	her 	an
opportunity to 	get 	the waiver. 	He 	even provided 	her with 	the
forms 	and 	information necessary to 	obtain 	that waiver. 	For
reasons 	never explained by Bracey, 	however, 	she 	refused to
apply.
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According 	to 	the District, 	in 	addition to 	failing 	to 	apply
for 	the waiver, 	around this 	time, 	Bracey's 	behavior became
quite unusual. 	She became suspicious, 	hostile, 	and verbally-
aggressive. 	Her 	attendance 	became 	sporadic 	and 	at 	times 	she
appeared 	to 	be 	in 	a 	trance. 	She 	refused 	to 	attend 	staff
meetings, 	stating 	at one moment 	that 	it was 	because other
teachers 	picked 	on 	her 	and 	then 	claiming 	that 	the 	Union 	told
her 	not 	to 	be 	in 	a 	room with management 	representatives 	unless
she 	had 	a Union 	representative 	present.
Bracey 	appears 	to 	agree with 	the District 	that 	problems
surfaced 	after 	she 	refused 	to 	teach 	in 	a 	conventional
classroom. 	Bracey claims 	she 	spoke 	to 	the Assistant
Superintendent 	for 	Special Education, 	Dr. 	Philip Callison, 	who
told 	her 	to 	speak with Dr. 	Jack Morrow 	and with 	the 	people 	at
the 	office 	responsible 	for 	reasonable 	accommodation. 	Bracey
indicated that 	after 	she visited Callison, 	Don Sacks, 	the
teleclass 	coordinator, 	became 	extremely hostile 	and 	threatened
her when he was 	subpoenaed 	to 	testify 	at 	a worker's
compensation proceeding. 	In 	addition, 	Bracey complained 	that
supplies 	began 	disappearing 	from her 	classroom 	and 	she was
yelled 	at 	and 	belittled 	in 	staff 	meetings. 	When 	she 	told 	the
Union 	she was 	being 	threatened, 	Bracey 	reported 	that
representatives 	instructed 	her 	not 	to 	attend meetings 	with
Sacks 	or Davis without 	a Union 	representative. 	When 	she 	could
not 	get 	a Union 	representative 	to 	accompany her 	to 	staff
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meetings, 	she 	refused to 	attend, 	believing 	she was 	acting 	on
the 	advice of 	the Union.3
The 	parties 	agree Bracey was 	absent 	for 	one week early 	in
April 	1985. 	The District 	claims 	it 	received no 	notice while
Bracey claims 	she made 	the 	necessary 	and 	appropriate 	telephone
contact. 	In any event, 	when Bracey did 	return, 	she was
directed to 	see the District's physician, 	Dr. 	Jack Morrow, 	who
eventually 	recommended 	that 	Bracey be 	placed 	on 	leave 	pending 	a
psychiatric 	evaluation. 	His 	recommendation was 	followed,
Bracey complained 	to 	the Union, 	and 	the Union 	filed 	a 	grievance
on Bracey's 	behalf 	complaining 	that 	the District was 	not 	in
compliance with Education Code 	section 44942. 	After 	receiving
the grievance, 	the District maintains 	it 	complied with
Education Code 	section 44942, 	a matter disputed by Bracey, 	but
not 	at 	issue 	in this 	proceedings. 	Los Angeles Unified 	School
District 	(Bracey) 	(1986) 	PERB Decision No. 	588.
Education Code section 44942 provides, 	in relevant part, 	as
follows:
44942. 	Suspension or 	transfer of
certificated 	employee 	on 	ground 	of 	mental
illness:
3The 	record 	does 	not 	reflect 	the Union's 	version 	of 	the
advice 	it gave Mrs. 	Bracey. 	It 	is 	not unlikely she was 	advised
of her 	rights pursuant to Weingarten v. 	NLRB 	(1975) 	420 U.S. 	25
[88 LRRM 2689], 	Redwoods 	Community College District 	(1984)
159 	Cal.App.3d 	617 	aff'g 	PERB Decision No. 	293. 	Bracey,
however, 	extended 	the doctrine 	set 	forth 	in those cases 	and
thought 	she 	could 	refuse 	to 	attend 	general 	staff 	meetings
without 	representation.
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Psychiatric 	examination: 	Mandatory 	sick
leave. 	(a) 	Any certificated employee may
be 	suspended 	or 	transferred 	to 	other 	duties
by 	the 	governing 	board 	if 	the 	board 	has
reasonable 	cause 	to 	believe 	that 	the
employee 	is 	suffering 	from mental 	illness 	of
such 	a 	degree 	as 	to 	render 	him 	incompetent
to 	perform his 	duties.
(b) 	The governing board 	shall 	forthwith,
upon 	any 	suspension 	or 	transfer here under,
give 	to 	the employee 	a written 	statement 	of
the 	facts 	giving 	rise to 	the 	board's 	belief,
and 	an 	opportunity to 	appear 	before 	the
board within 	10 	days 	to 	explain or 	refute
the charges.
(c) 	If, 	after 	the employee's 	appearance
before 	the board, 	the board decides 	to
continue the suspension or transfer, 	or 	if
the 	employee chooses 	not 	to 	appear 	before
the board, 	the employee 	shall 	then be
offered, 	in writing, 	the opportunity of
being 	examined by 	a 	panel 	of 	three
psychiatrists 	selected 	by him from 	a 	list 	of
psychiatrists 	to 	be 	provided 	by 	the 	board.
To 	assist 	the 	panel 	in making 	their
determination, 	the 	governing 	board 	shall
supply to 	the panel, 	prior to the date
scheduled 	for 	the 	psychiatric examination, 	a
list 	of 	the duties 	of 	the 	position 	from
which 	the 	employee was 	suspended 	or
transferred. 	The 	employee 	shall 	continue 	to
receive 	his 	regular 	salary 	and 	all 	other
benefits 	of 	employment 	during 	the 	period
dating 	from his 	suspension 	to 	the 	filing 	of
the 	report 	of 	the 	panel with 	the 	governing
board.
(d) 	The psychiatric 	examination 	shall 	be
conducted 	at 	school 	district 	expense within
15 	days 	of 	any 	suspension 	or 	transfer
ordered 	here 	under. 	The 	employee 	shall
submit 	to 	the examination, 	but 	shall 	be
entitled 	to 	be 	represented 	by 	a 	psychiatrist
or physician of 	his 	own choice, 	and any
report 	of 	the psychiatrist 	or 	physician
selected 	by him 	shall 	be 	filed with 	the
panel 	at 	the 	request 	of 	the employee.
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A written 	report 	of 	the 	panel 	on 	the
examination of 	the 	suspended 	or 	transferred
employee 	shall 	be 	submitted 	to 	the 	governing
board within 	10 	days 	after 	completion of 	the
examination. 	A copy 	shall 	be 	supplied 	to
the employee upon 	request. 	The 	report 	shall
contain 	a 	finding 	on whether 	the 	employee 	is
suffering 	from mental 	illness 	of 	such 	a
degree 	as 	to 	render 	him 	incompetent 	to
perform his duties.
(e) 	If 	a majority of 	the panel conclude
that 	the 	employee 	should 	be 	permitted 	to
return to his duties, 	no written record of
the determination of 	the 	panel 	shall 	be
retained, 	and 	in all 	respects 	any written
record 	concerning 	the 	employee 	shall 	appear
as 	it did before 	the 	suspension was made.
(f) 	If 	a majority of 	the panel 	find 	in
their 	report 	that 	the 	employee 	is 	suffering
from mental 	illness 	of 	such 	a degree 	as 	to
render 	him 	incompetent 	to 	perform his
duties, 	the governing board may, 	upon
receipt of 	the 	report, 	place the employee on
mandatory 	sick 	leave of 	absence. 	Any
mandatory 	sick 	leave 	of 	absence 	imposed
under 	this 	section 	shall 	not 	exceed 	two
years, 	during which period 	the employee
shall 	be entitled to 	sick 	leave, 	hospital
and medical 	benefits 	which 	he 	accrued 	during
his 	employment 	by 	the 	governing 	board 	but
only to 	the extent 	of 	such 	accrual.
(g) 	Any employee placed 	on mandatory sick
leave 	of 	absence pursuant 	to 	this 	section
may 	in writing 	immediately demand 	a
hearing. 	Thereupon the 	governing 	board
shall 	file 	a complaint 	in the 	superior 	court
of 	the 	county 	in which 	the 	school 	district
or 	the major part 	thereof 	is 	located,
setting 	forth 	the 	charges 	against 	the
employee 	and 	asking 	that 	the 	court 	inquire
into 	the 	charges 	and determine whether 	or
not 	the charges 	are true, 	and 	if true,
whether 	they constitute 	sufficient 	grounds
for 	placing 	the 	employee 	on mandatory 	sick
leave of 	absence, 	and for 	a judgment
pursuant 	to 	its 	findings.
9

The 	District 	alleges 	that 	Bracey 	received 	notice 	that 	the
Board 	of 	Education was 	going 	to 	consider 	taking 	action 	pursuant
to 	44942 	and Bracey failed 	to 	appear 	before 	the board. 	The
District 	further maintains 	that 	on 	two 	separate 	occasions 	it
convened 	a 	psychiatric 	panel 	and 	Bracey 	failed 	to 	appear 	before
the panel. 	After 	Bracey's 	second 	failure 	to 	appear 	before 	the
psychiatric panel, 	the Board of 	Education placed her 	on
involuntary 	leave 	and 	the 	payment 	of 	her 	regular 	salary
terminated.
Since 	that 	time, 	Bracey has 	exhausted 	all 	her 	accumulated
sick 	leave. 	Correspondingly, 	Bracey exhausted 	her 	entitlement
to 	District-paid 	hospital 	and medical 	benefits 	and 	other
insurance benefits 	as well. 	Accordingly, 	if Bracey were to
retire 	at 	this 	time, 	she would do 	so without many of 	the
significant 	benefits 	she worked more 	than 	25 years 	to maintain.
IV. 	THE FORMAL HEARING
The 	hearing 	in 	this 	case did not 	progress 	smoothly. 	From
the 	outset 	Bracey 	appeared 	to 	be unfocused, 	disorganized 	and
confused 	by every 	aspect 	of 	the proceeding. 	Before 	testimony
or 	documents were 	introduced 	into 	evidence, 	the parties 	agreed
that 	the 	undersigned 	could 	act 	as 	a mediator 	to 	further 	assist
them 	in 	their 	attempts 	to 	resolve 	the dispute without 	a 	formal
hearing. 	In assuming that 	role, 	the undersigned 	further
confused 	Bracey, 	who 	seemed 	to 	have difficulty understanding
how 	I 	could 	be mediator 	and 	confidant 	at 	one 	stage 	of 	the
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proceedings 	and 	judge 	and 	jury at 	another. 	Nevertheless, 	on
the 	first 	day of 	hearing, 	Bracey was 	assisted by her 	brother 	in
organizing 	and 	presenting 	her 	material 	and 	the 	hearing 	did 	get
underway. 	Documents were 	identified, 	opening 	statements made,
and 	the 	first 	witness 	examined 	and 	cross-examined.
Each 	day 	Bracey 	repeatedly 	rejected 	increasingly 	favorable
settlement 	offers, 	and 	the hearing 	progressed with the 	problems
not 	uncommon when 	the examination of 	the witnesses 	is 	conducted
by 	individuals 	unschooled 	in 	adversarial 	quasi-judicial
administrative 	hearings. 	Bracey had 	difficulty 	formulating
questions, 	focusing 	on matters 	relevant 	to 	her unfair 	practice
proceeding 	and 	getting 	prepared. 	Her 	frustration 	level 	seemed
to 	increase, 	she became hostile, 	and 	she 	seemed 	increasingly
confused 	that 	PERB, 	the 	agency which had 	helped 	her 	get 	this
far, 	was 	now ruling 	against her.
The 	first 	three 	days 	of 	hearing 	concluded 	and 	the 	hearing
was 	scheduled to 	reconvene. 	On the date 	set, 	Bracey called on
the 	telephone 	and 	indicated 	that 	she 	had 	to 	go 	to 	the
hospital. 	In a 	subsequent telephone conversation, 	Bracey
indicated 	that 	she 	had 	become 	ill 	because 	of 	the 	stress
produced 	by the 	hearing. 	She 	explained 	that 	she was 	in
constant 	pain 	and 	the 	idea of 	facing 	four days 	of 	hearing 	had
caused 	insomnia 	and 	severe 	intestinal 	distress. 	Although
Bracey never 	formally 	requested 	a 	continuance, 	the undersigned
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continued 	the 	hearing making 	it 	clear 	that 	no 	further
continuances 	would 	be 	allowed.
The 	hearing 	reconvened on January 20, 	1987. 	The Respondent
was present, 	as was a witness, 	Lawrence Birtja, 	the Assistant
Principal 	at Widney High School. 	The 	first 	order 	of 	business
related 	to Bracey's 	attempt 	to 	recall Don Sacks, 	Jim Wishard, 	a
teleclass 	teacher, 	and Jay Davis, 	previously called 	and excused
witnesses. 	The District 	indicated 	its 	opposition to 	those
witnesses 	being 	recalled 	in 	Bracey's 	case-in-chief 	and 	Bracey
failed 	to 	show good 	cause 	for 	such 	a 	maneuver. 	Accordingly,
the 	subpoenas 	issued 	for 	those witnesses 	were 	quashed.
Bracey was 	then directed 	to 	proceed with 	her 	next witness
and 	she 	refused 	to 	go 	forward 	if 	Jay Davis was 	allowed 	to
remain 	in 	the 	hearing 	room. 	Bracey claimed 	her 	unnamed
advisers 	had 	told 	her 	she 	had 	a 	right 	to 	demand 	the 	exclusion
of witnesses. 	It was explained that Davis was 	a 	representative
of 	the District who would 	be 	allowed 	to 	remain. 	Bracey was
again 	advised 	that 	she 	should 	go 	forward. 	When 	she 	again
refused, 	a 	recess was 	taken 	and Bracey was 	directed 	to 	return
at 	10:45 	a.m., 	prepared 	to 	show cause why the 	case 	should 	not
be 	dismissed 	if 	she 	refused 	to 	go 	forward.
At 	the 	appointed 	time, 	the Charging 	Party 	failed 	to 	return
to 	the hearing 	room; 	she had 	left 	the PERB's 	offices 	and could
not be 	located. 	Later the same day, 	on January 20, 	1987, 	the
PERB 	issued 	an Order 	to 	Show Cause 	directing 	the 	Charging 	Party
as follows:
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[T]he 	Charging 	Party 	is 	hereby Ordered 	to
show cause, 	in writing, 	on or before
January 30, 	1987, 	why the 	record should not
be 	closed 	and 	the 	case dismissed 	if 	the
Charging 	Party will 	not 	proceed with Mr. 	Jay
Davis 	in the hearing 	room. 	At 	the 	same
time, 	the Charging 	Party 	is 	hereby Ordered
to 	state whether 	she will 	go 	forward 	if Mr.
Jay Davis 	is 	not 	excluded 	from the 	hearing
room.
On or 	about January 26, 	1987, 	the Charging Party filed 	a
letter 	with 	PERB 	complaining 	about 	deprivation 	of 	various
constitutional 	and 	statutory 	rights. 	The 	Charging 	Party did
not 	show cause why 	she 	should 	be 	allowed 	to 	proceed without 	Jay
Davis 	in 	the 	hearing 	room and 	she declined 	to 	respond 	to 	the
question 	regarding 	whether 	or 	not 	she would 	proceed 	with 	Davis
in the hearing 	room. 	More precisely, 	Bracey refused 	to 	answer
the 	question until 	the Respondent 	filed 	a 	particular 	pleading,
demanded 	by Bracey but 	not 	required 	by PERB. 	Thereafter, 	on
January 30, 	1987, 	the Charging Party was 	advised that her
letter 	of 	January 26 	did 	not 	comply with 	the Order 	to 	Show
Cause. 	She was given until February 5, 	1987, 	to 	indicate
whether 	or 	not 	she would 	go 	forward with 	the hearing. 	On
February 4, 	1987, 	the Respondent moved to dismiss 	the 	action
for 	the 	Charging 	Party's 	refusal 	to 	go 	forward 	and 	her 	failure
to 	comply with 	the Order 	to 	Show Cause.
On February 10, 	1987, 	having heard nothing 	further 	from
Bracey, 	the 	parties were 	advised 	that 	the 	record 	in this
proceeding 	was 	closed 	and 	that 	the 	undersigned 	intended 	to
13

dismiss 	the 	action 	as 	a 	result of 	the Charging 	Party's 	failure
to prosecute.
V. 	DISCUSSION
On 	several 	occasions, 	the PERB has 	been called upon 	to
dismiss 	actions where 	the 	charging 	party 	refused 	to 	proceed.
In Service Employees 	International Union. 	Local 	99, 	AFL-CIO
(Kimmett) 	(1981) 	PERB Decision No. 	163, 	the Board upheld the
dismissal 	of 	an Unfair 	Practice Charge where 	the 	charging 	party
failed 	to 	appear. 	In that 	case, 	the charging 	party first
failed 	to 	appear 	on 	a 	scheduled day of 	hearing 	because 	he
insisted 	that 	the 	case 	set 	for 	hearing 	could 	not 	be 	heard 	until
a 	charge 	he 	had 	subsequently 	filed was 	disposed 	of. 	Over
objections 	from the 	respondent 	union, 	the Administrative Law
Judge 	refused to dismiss 	the Complaint. 	Subsequently, 	the case
was 	rescheduled 	for 	hearing 	and 	the Administrative 	Law 	Judge
cautioned 	both parties 	that 	sanctions 	would 	be 	imposed 	if
either 	failed 	to 	appear. 	When 	the 	charging 	party did 	fail 	to
appear 	for 	the hearing, 	the union moved 	to dismiss 	the 	case 	and
the motion was 	granted.
In Los Angeles Unified School District 	(Siamis) 	(1984) 	PERB
Decision No. 	464, 	the Board 	again upheld 	an ALJ dismissal when
a 	charging 	party 	refused 	to 	proceed 	pursuant 	to 	the 	rules
dictated by the ALJ. 	Siamis, 	like Gladys Bracey, 	wanted to
follow his 	own 	rules, 	not 	those properly dictated by PERB.
In the 	instant 	case, 	the Charging Party has 	repeatedly
refused 	to 	comply with 	the 	rules. 	It 	is 	recognized 	that 	she
14

has been 	representing herself, 	but, 	under the circumstances,
she 	has 	been granted 	great 	leeway. 	Bracey was 	not 	ready to
proceed 	on 	September 	12 	and was 	given time 	to 	prepare prior 	to
calling 	her 	next witness. 	The case was 	adjourned 	early 	in
order 	to 	give her 	additional 	time 	to prepare. 	She did not 	show
up when 	the 	hearing was 	scheduled 	to 	reconvene 	and 	she 	never
complied, 	even belatedly, 	with PERB's 	regulations 	relating 	to
continuances.
Finally, 	when the hearing 	did 	reconvene, 	Bracey 	refused 	to
proceed when 	she was 	directed 	to 	do 	so. 	She was 	then ordered
to 	return 	after 	a 	recess 	and 	she disappeared. 	When 	she was
given a written order to 	respond, 	she 	responded 	as 	she 	saw fit,
failing 	to 	comply with 	the Order. 	When given 	another
opportunity to 	respond, 	she 	failed 	to do 	so.4
In Los Angeles Unified School District 	(Siamis). 	supra, 	the
Board 	recognized 	the 	inherent 	right 	of 	the Administrative Law ,
Judge 	to 	control 	the proceedings 	before her. 	Such power 	is
also vested by PERB's 	regulations. 	Section 32170 	of 	part 	III,
title 	8, 	California Administrative Code provides, 	in 	relevant
part:
The 	Board 	agent 	conducting 	a 	hearing 	shall
have 	the 	power 	and duty to:
4 To 	the 	extent 	Bracey partially complied with 	the 	order,
she 	failed 	to 	state 	sufficient 	cause 	for 	her 	refusal 	to 	go
forward.
15

(d) 	Regulate the course 	and conduct 	of 	the
hearing, 	including 	the power 	to exclude 	a
witness 	from the 	hearing 	room;
(m) 	Carry out 	the duties 	of 	administrative
law 	judge 	as 	provided 	or 	otherwise
authorized 	by these 	regulations 	or 	by 	the
applicable Act.
Charging 	Party was 	visibly upset 	and 	frustrated 	by 	the
proceedings. 	Nevertheless, 	given the 	rules 	as 	they currently
exist, 	she elected to 	represent herself. 	The 	rules 	of PERB,
not 	the 	rules 	of 	Gladys 	Bracey, 	must prevail 	if 	there 	is 	to be
fairness 	to 	both 	sides 	in PERB proceedings. 	Given her 	refusal
to 	proceed, 	which constitutes 	an 	abandonment 	of 	her 	cause of
action, 	I 	exercise my discretion pursuant 	to 	PERB's 	Regulations
and determine 	the Unfair 	Practice 	Charge/Complaint 	is 	DISMISSED,
PROPOSED 	ORDER
Based on 	the 	foregoing 	findings 	and 	conclusions, 	the 	case
of 	Gladys M. 	Bracey v. 	Los Angeles Unified 	School 	District 	is
hereby 	DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	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 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 California	. one ... . .
16

Administrative Code, 	title 8, 	part III, 	section 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 	California 	Administrative 	Code,
title 	8, 	part 	III, 	section 32135. 	Code of Civil Procedure
section 	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 California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305 and 32140.
Dated: 	April 	15, 	1987
Barbara E. Miller
Administrative Law Judge
17