Los Angeles Unified School District (Association of Public School Supervisory Employees) (PERB 0835E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION 	OF 	PUBLIC 	SCHOOL
SUPERVISORY 	EMPLOYEES,
Charging 	Party,
v.
LOS ANGELES 	UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2944
PERB 	Decision No. 	835
August 	30, 	1990
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Appearances: 	Wanda J. 	Robinson, 	Labor Relations Representative,
for Association of Public 	School 	Supervisory Employees; 	Jesus
Estrada-Melendez, 	Assistant Legal Adviser, 	for Los Angeles
Unified 	School 	District.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the Association of
Public 	School 	Supervisory Employees 	(APSSE) 	of 	a Board agent's
dismissal 	of 	its 	unfair practice 	charge against 	the 	Los Angeles
Unified School District 	(District). 	The allegations 	stem
initially 	from 	a 	predisciplinary 	meeting 	at which 	an APSSE
member, 	Edrean Mims 	(accompanied by an APSSE representative,
Wanda Robinson), 	was 	confronted with complaints 	that 	she had been
discourteous 	and had made 	racist remarks. 	The 	District's
investigation 	eventually 	led 	to 	the 	demotion of 	Mims 	from Plant
Manager II 	to Custodian.
The allegations are as 	follows: 	(1) 	Mims' 	procedural due
process 	rights 	enunciated 	in Skelly v. 	State Personnel 	Board
(1975) 	15 Cal.3d 194 	[124 Cal.Rptr. 	14] 	(Skelly) were violated;
_____)

(2) 	APSSE's 	"right to 	information" 	was 	violated by the District's
failure to provide copies of the complaints against Mims; 	(3) 	the
District 	unilaterally 	changed 	its 	policy with 	respect 	to
providing 	information; 	(4) 	the District unilaterally changed 	its
discipline policy by demoting Mims 	rather than 	suspending her;
(5) 	the 	District unilaterally changed 	its 	discipline policy by
transferring the duty of 	conducting 	Skelly hearings 	from a
representative within the 	Business 	Services 	Department 	to 	one
within the Operations Branch Department, 	where Mims works.
We 	have 	reviewed the 	Board 	agent's 	dismissal 	and APSSE's
appeal and, 	as discussed below, 	affirm the dismissal of the
unfair practice 	charge.1
DISCUSSION
Procedural 	Due 	Process
In Skelly, 	the California 	Supreme Court delineated 	certain
procedural 	due process 	protections 	a public 	employer must provide
a 	civil 	service 	employee before 	taking punitive 	action. 	The
protections 	enunciated 	in the 	Skelly 	case 	are 	based 	on the 	Due
Process 	Clauses 	of 	the California 	and 	United States
constitutions. 	The 	Board agent 	correctly noted that 	PERB only
has 	jurisdiction to 	enforce 	the 	statutes 	it 	is 	charged with
1In a related matter, 	the District appeals 	the rejection of
its 	response to APSSE's 	appeal. 	The Board Appeals Assistant
rejected the 	filing as untimely. 	However, 	the District has
invited the 	Board to disregard 	its 	appeal 	if the 	Board 	intends 	to
dismiss the 	charge on its merits. 	As we 	find that the dismissal
of APSSE's unfair practice charge must be affirmed, 	it 	is
unnecessary to rule on the District's 	appeal and, 	for that
reason, 	we 	shall dismiss the appeal.
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administering2 and has 	no 	jurisdiction to 	enforce 	constitutional
protections. 	On appeal, 	APSSE acknowledges 	PERB's 	limited
jurisdiction, 	but 	argues 	that 	its 	claim 	should nonetheless 	be
cognizable under EERA because 	the 	Skelly 	requirements 	are
essential 	to 	the 	employee organization's 	role 	in representing 	its
members.
There 	is 	no precedent 	to 	support 	the 	incorporation of 	Skelly
requirements 	into 	the duties 	required of 	an employer under EERA,
and we 	find no basis 	for adopting 	such requirements. 	In essence,
what APSSE 	seeks 	in this 	case 	is 	a 	requirement that the 	employer
provide 	information concerning the 	discipline 	of 	an employee 	to
his 	or her employee organization, 	even in the absence of a
request 	for 	such 	information. 	An exclusive 	representative
generally has 	the right to 	information that 	is 	necessary and
relevant 	to 	the 	fulfillment of 	its 	representational 	obligations. '
(See, 	e.g., 	Stockton Unified School District 	(1980) 	PERB Decision
No. 	143, 	p. 	13.) 	We fail to see how any right to information
arising under 	EERA 	is 	jeopardized by 	the 	traditional 	labor 	law
requirement 	that 	the 	employee 	organization 	first 	request 	the
information. 	(See, 	e.g., 	Oakland Unified School District 	(1982)
22 In this case, 	the applicable statute is the Educational
Employment Relations Act 	(EERA). 	EERA is 	codified at Government
Code 	section 	3540 	et 	seq.
3APSSE 	is 	a nonexclusive representative. 	While the Board
has 	not 	articulated the 	scope 	of 	a 	nonexclusive representative's
right to 	information, 	and we need not do 	so here, 	for the
purposes 	of 	this 	case we 	simply note 	that 	any 	such right 	could
not 	logically be more 	expansive 	than that 	conferred 	upon
exclusive 	representatives.
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PERB Decision No. 	275, p. 	18; 	Morris, 	The Developing Labor Law
(2d ed. 	1983) pp. 	611-612.)
APSSE's 	Right 	to 	Information
At 	the predisciplinary meeting, 	which was 	held on October 	4,
1989, 	APSSE 	representative Robinson was 	allegedly denied 	copies
of 	complaints against Mims. 	However, 	Robinson was 	allowed to
look at the 	complaints 	during the meeting. 	Allegedly, 	APSSE
never received 	copies 	of 	the 	statements 	for use 	in preparing
Mims' 	defense at her Skelly hearing.
The 	Board 	agent concluded that no prima 	facie denial 	of
information was 	alleged because 	Robinson was 	allowed 	to 	view the
complaints 	at 	the October 	4 	meeting and no request 	for the
information was made thereafter. 	On appeal, 	APSSE argues 	that
EERA provides 	a 	right to 	information 	for 	nonexclusive
representatives 	that 	should be 	construed 	to 	require 	that 	all
information 	to be 	used 	in a 	disciplinary 	action against 	an
employee be provided to his 	or her employee organization. 	Again,
the 	claim is 	made that 	a 	request by the 	employee organization
should not be required. 	For the reasons 	stated above, 	we 	find
that 	such a 	request 	is 	required under EERA. 	Since 	it 	is
undisputed 	that 	Robinson was 	allowed 	to 	review the 	complaints
against Mims 	at the October 	4 	meeting and APSSE 	failed to 	allege
that 	the 	information was 	thereafter 	requested 	for use 	in
preparing 	for Mims' 	Skelly hearing, 	we 	find that no prima 	facie
denial 	of 	information has 	been alleged.
A	
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The 	Board 	agent 	stated 	that 	the 	charge 	appeared 	to 	also
allege 	a 	change 	in policy 	regarding 	the 	information provided 	to
nonexclusive representatives, 	but 	she dismissed this 	allegation
for failure 	to 	include 	facts 	to 	support 	it. 	From a reading of
the charge, 	it is not clear if, 	in fact, 	APSSE did allege such a
change 	in policy. 	Nor is 	it 	clear if APSSE 	is 	appealing the
dismissal of this allegation. 	Nevertheless, 	as we 	find no 	facts
have 	been alleged 	to 	sufficiently 	identify 	such 	a policy 	or 	to
explain how 	such a policy was 	changed, 	we 	affirm the dismissal 	of
this 	allegation.
Changes 	in Discipline Policy
APSSE 	claims 	that the District's 	decision to demote Mims,
rather than 	suspend her, 	constitutes 	a change 	in policy. 	In Los
Angeles Unified School District 	(1983) 	PERB Decision No. 	285, 	at
page 	8, 	the 	Board outlined a public 	school 	employer's 	obligations
under 	EERA vis-a-vis 	nonexclusive 	representatives:
. 	. 	. 	whereas the public school employer and
representatives 	of 	recognized 	or 	certified
employee 	organizations 	have 	the mutual
obligation to meet 	and negotiate 	in good
faith with 	regard 	to matters within the 	scope
of representation 	(section 3543.5), 	the Board
finds 	that 	the 	obligation 	imposed by 	EERA on
public 	school 	employers with respect 	to 	a
nonexclusive representative 	is 	to provide
notice 	and a 	reasonable 	opportunity 	to 	meet
and discuss wages, 	fringe benefits, 	and other
matters 	of 	fundamental 	concern to the
employment 	relationship prior to 	the 	time 	the
employer reaches 	a decision on 	such matter.
APSSE provided 	the 	Board 	agent with 	a 	District policy 	guide
entitled, 	"A Positive Approach to Classified Employee
Discipline." 	The policy guide provides, 	in pertinent part:
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The 	appropriateness 	of 	any kind of
disciplinary 	action depends 	on 	the 	individual
situation - Examples:
a. 	Suspension. 	Use with an employee who
fails 	repeatedly 	to 	perform or 	complete
assigned duties 	and who, 	after repeated
warnings, 	does not alter such
behavior 	. . . .
b. 	Demotion. 	Use when an employee 	is
incapable 	of performing the 	full 	range 	of
duties of the present job even though: 	1)
work attitude is good, 	2) 	the employee can
perform 	some 	of 	the prescribed duties 	in a
satisfactory manner, 	3) 	the employee was
fully 	satisfactory 	in a 	lower-level 	position.
In all cases, 	the amount and type of
discipline 	imposed 	should 	be 	related 	to 	the
nature 	and 	severity of 	the 	offense 	committed
and 	the 	employee's 	past work history 	(good 	or
bad); 	length of service, 	and prior
discipline, if any.
(Emphasis 	added.)
The Board agent concluded that, 	assuming the meet and
discuss 	obligation pertained 	to 	the 	subject 	of 	discipline
policies, 	the charge 	failed to reflect how the demotion of Mims
was 	inconsistent with the policy guide 	quoted 	above. 	On appeal,
APSSE 	simply reasserts 	its 	claim that 	the demotion reflects 	a
change 	in policy. 	We agree with the Board agent 	that 	the 	facts
alleged 	fail 	to 	indicate 	that 	the 	District 	deviated 	from the
policy quoted above. 	Moreover, 	even if Mims' 	demotion arguably
constituted a deviation 	from that policy, 	there 	are 	no 	facts
alleged 	to 	indicate 	that 	the 	District's 	conduct 	amounted 	to 	a
change 	in policy. 	In Grant Joint 	Union High School 	District
(1982) 	PERB Decision No. 	196, 	at page 9, 	the Board defined a
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change 	in policy 	as 	having 	a 	generalized 	effect 	or 	continuing
impact upon terms 	and conditions 	of 	employment. 	This was
contrasted with a mere default 	in a 	contractual 	obligation.
APSSE's allegation, 	which is, 	in essence, 	a claim that the
disciplinary action taken against Mims was 	unduly 	severe, 	fails
to 	conform to 	the definition of 	a policy 	change.
Lastly, 	APSSE asserts 	that the District made a unilateral
change 	in its 	discipline policies 	by reassigning the 	task of
conducting 	Skelly hearing to 	a managerial 	employee 	in Mims'
department, 	thereby destroying any 	semblance of 	impartiality. 	No
other facts 	are alleged to 	support this 	allegation. 	The 	Board
agent dismissed this 	allegation, 	finding that APSSE 	failed 	to
allege 	facts 	establishing 	that 	the 	Skelly hearing would 	no 	longer
be 	impartial 	or that 	the 	reassignment 	otherwise 	constituted 	an
alteration 	of 	Skelly procedures 	of 	sufficient magnitude 	to 	invoke
a 	meet and discuss 	obligation, 	assuming 	such an obligation would
otherwise 	exist. 	As we 	find this 	allegation to be based on mere
speculation, 	without any 	supporting facts, 	we affirm the
dismissal.4
ORDER
The unfair practice charge 	in Case No. 	LA-CE-2944 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND. 	The 	District's 	appeal 	from the
The 	Board 	agent 	concluded 	that procedural 	changes 	in 	an
employer's 	discipline policies 	would 	trigger a 	meet 	and discuss
obligation. 	As 	it 	is unnecessary to decide 	if 	this matter would
fall within the parameters 	of 	the public 	school 	employer's
obligation to 	meet 	and discuss with 	a 	nonexclusive
representative, we decline to do so.
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rejection of 	its 	response to the appeal 	of the dismissal of 	the
unfair practice charge 	is hereby DISMISSED.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
Co
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