Los Angeles Unified School District (Association of Public School Supervisory Employees) (PERB 0918E)

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-3087
PERB Decision No. 	918
January 7, 	1992
)
)
)
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Appearances: 	Wanda Robinson, 	Regional Representative, 	for
Association of 	Public 	School 	Supervisory Employees; 	Rochelle J.
Montgomery, 	Attorney, 	for Los Angeles 	Unified School 	District.
Before: 	Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the Association of 	Public
School 	Supervisory Employees 	(APSSE) 	to a Board agent's 	dismissal
of 	a 	charge 	(attached hereto) 	that the Los Angeles 	Unified 	School
District 	(District) 	violated the Educational Employment Relations
Act 	(EERA) 	section 3543.5(a) 	and 	(b).1 The Board has reviewed
1
1
EERA is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	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
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
~
~
(

the dismissal 	and, 	finding it to be 	free of prejudicial 	error,
adopts 	it as 	the decision of 	the 	Board 	itself 	in accordance with
the 	discussion below.
On appeal, APSSE argues that its member, 	Don Baity 	(Baity),
requested 	a 	meeting with 	District 	representatives 	under 	the
Personnel Commission Rule 	(Rule) 	702(D),2 which concerns a review
of performance evaluations, 	and not under Rule 	893, 	which
provides 	for a grievance procedure. 	Therefore, 	APSSE contends,
the Board agent's 	reliance on Rule 	893 was 	in error.
The 	letter 	from the 	District 	representative 	to 	Baity
demonstrates 	that 	the District had 	notice 	that APSSE was
applicant 	for 	employment 	or reemployment.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
2Rule 702(D) 	states:
1. 	Review of the performance evaluation
by the 	next higher 	level 	of 	administrative
authority may be made 	before 	or 	after an
individual 	evaluation conference 	is 	held with
each employee. 	Any comments 	recorded on the
performance 	evaluation 	form by 	the 	reviewer
shall 	be 	signed and 	shown to 	the 	supervisor
who made 	the evaluation and to 	the 	employee.
2. 	Employees 	and evaluators 	are 	encouraged
to 	arrive 	at a mutual 	understanding 	and
acceptance 	of 	the 	evaluation during the
conference. 	An employee who believes 	that
the 	evaluation 	is 	improper may go to the
evaluator's 	immediate 	supervisor 	to 	resolve
differences. 	If a permanent employee has
received one or more 	checks 	in the 	"below
work performance 	standards" 	column and
remains 	dissatisfied 	after 	review by 	the
evaluator's 	supervisor, 	the procedures
provided 	in Rule 	893 	may be used.
22

proceeding under Rule 702. 	Nevertheless, 	the failure to
reschedule 	a meeting under this 	rule or Rule 	893 	did not
3
constitute a prima 	facie 	case of unilateral 	change. 	In this
case, 	the failure to reschedule one meeting is 	insufficient to
show a policy 	change by the 	District 	that had a 	generalized
effect 	or 	continuing 	impact 	upon the 	terms 	and 	conditions 	of
employment 	of 	bargaining unit members. 	(Grant Joint 	Union High
-------·School District, 	supra- 	-·. 	PERB Decision No. 	196.)
APSSE 	also 	contends 	that 	the 	Board 	agent's 	failure 	to 	apply
the 	relation back doctrine 	to 	the 	allegations 	of 	retaliation and
interference raised 	for the 	first 	time 	in its 	amended 	charge was
in 	error. 	The allegations 	of 	retaliation and 	interference
concerned events 	surrounding Baity's 	demotion. 	However, 	the
allegations 	alleged 	in the 	original 	charge 	solely 	concern the
failure 	of 	the 	District 	to 	reschedule a meeting regarding 	a
performance 	evaluation. 	The 	original 	charge 	and the 	amended
charge 	raise 	allegations 	of 	different 	issues 	based 	on different
events and, 	therefore, 	the doctrine of relation back is
3To 	state a prima 	facie 	case of 	a unilateral 	change 	the
charging party must 	allege 	facts 	sufficient 	to 	establish: 	(1)
the 	employer breached or 	altered 	the party's written agreement 	or
own established past practice; 	(2) 	such action was 	taken without
giving 	the 	exclusive 	representative 	notice 	or an opportunity 	to
bargain over the change; 	(3) 	the change 	is not merely an isolated
breach of the contract, 	but amounts 	to a change of policy 	(i.e.,
has 	a 	generalized 	effect 	or 	continuing 	impact 	upon bargaining
unit members' 	terms and conditions of employment); 	and 	(4)
the 	change 	in policy concerns 	a matter within the 	scope 	of
representation. 	(Grant 	Joint 	Union High 	School 	District 	(1982)
PERB Decision No. 	196; 	Pajaro Valley Unified School District
(1978) 	PERB Decision No. 	51; 	Davis Unified School District,
et al. 	(1980) 	PERB Decision No. 	116.)
33

inapplicable. 	(Burbank Unified School 	District 	(1986) 	PERB
Decision No. 	589.)
Finally, 	even assuming that 	the 	allegations 	raised 	in the
amended 	charge were timely 	filed, 	there 	is 	no prima 	facie 	showing
of 	retaliatory conduct on the part of the District. 	The only
information provided by APSSE 	is 	that 	a 	District 	representative
signed the Notice of 	Intent to Dismiss 	for Baity 	23 	days 	after a
request 	for the performance evaluation review. 	However, 	timing
alone 	is 	not 	sufficient 	for an inference of unlawful 	motive.
(Los 	Angeles 	Community College District 	(1989) 	PERB Decision
No. 	748.)
The charge 	in Case No. 	LA-CE-3087 	is hereby DISMISSED
WITHOUT 	LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
4

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
August 30, 	1991
Wanda 	Robinson
1543 W. 	Olympic Blvd., 	Suite 200
Los Angeles, 	California 	90015
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT,
Unfair Practice Charge No. 	LA-CE-3087,
Association of 	Public 	School 	Supervisory
- - -Employees v. 	Los Angeles 	Unified School District
Dear Ms. 	Robinson:
I 	indicated to you 	in my attached 	letter dated August 	7, 	1991,
that 	the above-referenced charge did not 	state a prima 	facie
case. 	You were advised that 	if there were any factual
inaccuracies 	or additional 	facts 	that would 	correct 	the
deficiencies 	explained in that letter, 	you 	should amend the
charge 	accordingly. 	You were 	further advised that unless 	you
amended the charge to state a prima 	facie case, 	or withdrew it
prior to August 	14, 	1991, 	the charge would be dismissed.
On August 20, 	1991, 	I received from you an amended charge. 	The
amended 	charge appears 	to make two 	arguments 	relevant 	to 	the
original 	charge: 	(1) 	that Don Baity and APSSE were proceeding
not under Rule 	893 	(the grievance procedure) 	but rather under
Rule 	702 	(which provides 	for review of performance 	evaluations)
and 	(2) 	that the failure to reschedule the Step 2 meeting was 	in
retaliation 	for 	Don 	Baity's 	prior protected 	activity.
Despite these arguments, 	the original allegations, 	as amended,
still 	fail 	to 	state a prima 	facie violation of 	the EERA, 	for the
reasons 	that 	follow.
It 	seems 	difficult 	to 	support 	the argument 	that 	Baity and APSSE
were 	not proceeding under Rule 	893. 	Baity's 	use of 	a 	grievance
form 	and APSSE's 	request 	for a 	Step 	2 	meeting both 	invoke 	Rule
893, 	not Rule 702. 	In any case, 	it still does not appear that
the 	failure to reschedule one meeting, 	under either Rule,
amounted 	to 	a policy 	change with 	a 	generalized 	effect 	or
continuing 	impact upon the 	terms 	and conditions 	of 	employment 	of
bargaining unit members. 	(See Grant Joint 	Union High 	School
District 	(1982) 	PERB Decision No. 	196.)
The 	argument 	that 	the 	failure to 	schedule 	the meeting was
retaliatory 	is 	not 	supported by relevant 	allegations 	of 	fact.

Dismissal
LA-CE-3087
August 30, 	1991
Page 2
The 	amended 	charge does 	not dispute the 	facts 	set 	forth 	in my
August 	7 	letter: 	that the meeting was 	scheduled, 	that it was
canceled because 	of Tamara Dorfman's 	jury 	service, 	and that APSSE
did 	not 	request 	that 	it be 	rescheduled. 	Although the 	charge
argues 	that 	Principal 	Maria 	Reza 	intended 	to 	retaliate 	against
Baity, 	it does 	not 	allege 	that Reza had any involvement 	in any
decision not to reschedule the meeting. 	Furthermore, 	there 	is 	no
allegation that 	Tamara 	Dorfman, 	who apparently was 	responsible
for not 	rescheduling the 	meeting, 	evidenced any 	intent 	to
retaliate against Baity. 	The original allegations, 	as amended,
therefore do not 	state a prima 	facie 	case of retaliation. 	(See
Novato Unified School District 	(1982) 	PERB Decision No. 	210.)
I 	am therefore dismissing the original allegations, 	as 	amended,
based on the 	facts 	and 	reasons 	contained 	in this 	letter and 	in my
August 	7 	letter.
The 	amended 	charge 	also 	includes 	the 	following new allegations,
which were 	not 	contained 	in the original 	charge:
(1) 	The Respondent retaliated against Baity
by demoting him from a Plant Manager III, 	to
the position of custodian; 	(2) 	denied,
interfered 	and 	or 	restrained 	Baity 	from
filing a grievance 	regarding his 	1990
performance evaluation, 	thereby unilaterally
changing 	the 	performance 	evaluations
grievance procedures; 	(3) 	denied Baity the
right 	to be 	represented by 	the Association at
a 	performance 	evaluation meeting which 	the
employee 	reasonably 	believed would 	result 	in
discipline, or, 	in the alternative, was
surrounded by highly unusual 	circumstances;
and 	(4) 	denied Baity the right to be
represented by the Association, 	a
nonexclusive representative, 	by unilaterally
changing 	a 	policy 	permitting 	representation
at performance 	evaluation meetings.
The performance 	evaluation mentioned 	in 	these 	new allegations 	was
dated August 	22, 	1990. 	Baity 	filed his 	grievance concerning the
evaluation on September 	11, 	1990. 	Baity was 	served with a Notice
of 	Unsatisfactory 	Service 	recommending his 	demotion 	on November
28, 	1990. 	APSSE allegedly discovered on February 4, 	1991, 	that
the 	District 	had 	ignored 	Baity's 	right 	to 	a 	pre-disciplinary
meeting, 	at which APSSE 	could have 	represented him.
Based on the 	facts 	stated above, 	the 	new allegations 	in the
amended 	charge do 	not 	state 	a prima 	facie 	case within the

Dismissal
LA-CE-3087
August 30, 	1991
Page 3
jurisdiction of the Public 	Employment Relations 	Board 	(PERB), 	for
the reasons 	that 	follow.
Government Code 	section 	3541.5(a) 	provides 	in part that PERB
"shall not 	. 	. 	. 	issue 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." 	The 	amended 	charge was 	filed
on August 20, 	1991. 	The new allegations 	in the amended charge do
not 	"relate back" 	to the original charge, 	because the new
allegations 	raise different 	issues 	based on different 	events.
(See Burbank 	Unified School 	District 	(1986) 	PERB Decision
No. 	589.)
The 	six-month 	limitation period ran out 	for the 	unfair practices
alleged 	in the 	new allegations 	before 	the 	amended 	charge was
filed. 	The 	six-month limitation period 	for the alleged
retaliatory demotion began to run on November 25, 	1990, 	when
Baity received notice of the recommended demotion, 	even though
the demotion did not become final until 	later. 	(See Los Angeles
Unified School District 	(1991) 	PERB Decision No. 	894.) 	The other
alleged unfair practices 	also 	occurred 	in 	1990 	and were known to
APSSE no later than February 4, 	1991. 	The new allegations 	in the
amended charge, 	filed more than six-month 	later, 	are therefore
dismissed as 	untimely.
Right to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the charge by 	filing an
appeal 	to the Board itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such appeal 	must be 	actually received by the 	Board 	itself
before the close of business 	(5:00 p.m.) 	or 	sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later 	than
the 	last date 	set for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 	1013 	shall apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file a timely appeal 	of 	the refusal 	to 	issue a 	complaint,
any other party may 	file with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	calendar 	days
following the date 	of 	service of 	the 	appeal 	(California Code 	of
Regs., tit. 	8, 	sec. 	32635(b)).

Dismissal
LA-CE-3087
August 30, 	1991
Page 4
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a 	document 	served upon a party or 	filed
with the Board itself. 	(See California Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample form.) 	The
document will 	be 	considered properly 	"served" 	when personally
delivered or deposited 	in 	the 	first-class 	mail postage paid 	and
properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which to 	file 	a document
with 	the 	Board 	itself must 	be 	in writing 	and 	filed with 	the 	Board
at 	the previously noted address. 	A request 	for an extension must
be 	filed at 	least three 	calendar days 	before the 	expiration of
the time required 	for filing the document. 	The request must
indicate good cause for and, 	if known, 	the position of each other
party regarding the 	extension, 	and 	shall 	be 	accompanied by proof
of 	service of 	the request upon each party 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will become final when the time 	limits have expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By
Thomas J. 	Allen
Regional 	Attorney
Attachment
cc: 	Rochelle J. 	Montgomery

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Boulevard, Suite 650
Los Angeles, CA 90010-2334
736-3127	PERB 	(213)
August 7, 	1991
Wanda 	Robinson
1543 W. 	Olympic Blvd., 	Suite 200
Los Angeles, 	California 	90015
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3087,
Association of 	Public 	School 	Supervisory 	Employees 	v.
Los 	Angeles 	Unified 	School 	District
Dear Ms. 	Robinson:
In the above-referenced 	charge, 	the Association of Public 	School
Supervisory Employees 	(APSSE) 	alleges 	that the Los Angeles
Unified 	School 	District 	(District) 	unilaterally 	changed 	grievance
procedures. 	This 	conduct is 	alleged to violate Government Code
sections 	3543.5(a) 	and 	(b) 	of the Educational Employment
Relations Act 	(EERA).
My investigation of this 	charge reveals 	the 	following facts.
APSSE 	is 	an employee 	organization and 	a 	nonexclusive
representative. 	Don Baity 	is 	an APSSE member and 	an employee of
the District 	in a unit 	for which there 	is 	no 	exclusive
representative. 	Unit members 	are covered by a multi-step
grievance procedure, 	under District Personnel 	Commission Rule
893. 	Section B.9 of that Rule provides as 	follows:
If 	a grievance 	is 	not processed by the
grievant at any 	step 	in accordance with 	the
time limits of this Rule, 	it shall be deemed
withdrawn. 	If the District fails 	to respond
to 	the 	grievance 	in a 	timely manner at any
step, 	the running of 	its time limit 	shall be
deemed 	a denial 	of 	the 	grievance and
termination of 	the 	step 	in question, 	and the
grievant may proceed to the next 	step. 	All
time 	limits 	and grievance 	steps 	may be
shortened, 	extended or waived, 	but only by
mutual written agreement.
It is alleged that on or about November 20, 	1990, 	APSSE requested
that 	the 	District proceed to Step 	2 	of the procedure on a
grievance 	concerning 	a performance 	evaluation of 	employee 	Baity,
but that the 	District 	"intentionally ignored the request." 	It 	is
further 	alleged 	that 	the 	District 	"thereby has 	unilaterally
changed 	its 	procedures 	regarding the 	grievance procedure" 	and has
==---==--==----==--==~~ - - -

Warning 	Letter
LA-CE-3087
August 6, 	1991
Page 2
violated 	Baity's 	right 	to 	be 	represented 	and APSSE's 	right 	to
represent 	him.
In a letter to me dated June 	25, 	1991, 	District Assistant Legal
Adviser Rochelle J. 	Montgomery gives 	the 	following account of 	the
Baity grievance proceedings, 	which you have not disputed:
Step 	1 	of 	the grievance was heard on or about
October 25 	at which time Mr. 	Baity's
grievance was denied. 	The District notified
the Charging Party of 	its 	denial 	on or about
October 31. 	Subsequent thereto, 	on or about
November 	5, 	the Charging Party requested a
Step 2 	meeting. 	Pursuant to this request,
Tamara Dorfman, 	Personnel 	Representative 	for
the District, 	contacted APSSE 	representative
Wanda 	Robinson to 	schedule 	the Step 	2.
Ultimately, 	the Step 	2 was 	scheduled for
February 20, 	1991. 	Just prior to the
meeting, 	on or about February 5, 	Tamara
Dorfman was 	called 	to 	jury duty. 	Soon
thereafter, 	Ms. 	Dorfman contacted Wanda
Robinson and 	informed her of her 	jury
service. 	Additionally, 	Ms. 	Dorfman informed
Ms. 	Robinson on or about February 20 	that 	she
remained on 	jury duty and that 	the 	Step 	2
meeting would have 	to be rescheduled. 	Soon
thereafter, 	Ms. 	Dorfman ended her jury
services. 	Despite the fact that Ms. 	Dorfman
and Ms. 	Robinson met on several occasions 	in
formal 	hearings 	related 	to 	the 	same 	employee
(Baity), 	at no time did Ms. 	Robinson request
the rescheduling of the Step 2. 	Rather, 	the
charging party 	chose 	to 	file the 	instant
charges.
Based on the 	facts 	stated 	above, 	the 	charge does 	not 	state 	a
prima 	facie violation of 	the EERA, 	for the reasons 	that 	follow.
Under Grant 	Joint 	Union High 	School 	District 	(1982) 	PERB 	Decision
No. 	196, 	an unlawful unilateral change must amount to a change of
policy, 	which has 	a 	generalized 	effect or 	continuing 	impact 	upon
the 	terms 	and 	conditions 	of 	employment of 	bargaining unit
members. 	The District's 	failure to reschedule a Step 	2 	meeting
on the 	Baity 	grievance does 	not 	appear to 	amount 	to 	a policy
change with 	such an 	impact 	or 	effect.

Warning 	Letter
LA-CE-3087
August 6, 	1991
Page 3
On the 	contrary, 	the 	District's 	established 	grievance policy
contemplates 	that 	the District will 	sometimes 	fail 	to 	respond to
a 	grievance 	in a timely manner. 	Section B.9 of 	Rule 	893 	provides
that 	if 	that happens 	"at any 	step, 	the 	running of 	its 	time 	limit
shall 	be deemed 	a 	denial 	of 	the grievance 	and the 	termination of
the 	step 	in question, 	and the 	grievant may proceed to 	the 	next
step." 	It appears, 	however, 	that when the District failed to
reschedule the Step 	2 meeting on the Baity grievance, 	Baity and
APSSE did not proceed to 	Step 	3, 	nor did they request 	that 	the
Step 	2 	meeting be 	rescheduled.
APSSE argues 	that 	although under Section B.9 	it 	could proceed to
Step 	3 without a 	Step 2 	response 	it 	could not proceed to Step 	3
without a Step 	2 	meeting. 	This does 	not 	appear to be 	sensible
reading of Section B.9, 	however, 	and there is no factual
allegation that 	supports 	it.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie 	case. 	If there are any factual 	inaccuracies 	in
this 	letter or any additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge
accordingly. 	The 	amended 	charge 	should be prepared on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First Amended
Charge. 	contain all 	the 	facts 	and allegations 	you wish to make,
and must 	be 	signed 	under penalty 	of perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served 	on the 	respondent 	and
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended 	charge 	or withdrawal 	from you before
August 	14, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney