Riverside Unified School District (PERB 0553E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TONY PETRICH,
Charging 	Party,
v.
RIVERSIDE UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case Nos. 	LA-CE-2112
LA-CE-2130
PERB Decision No. 	553
December 23, 	1985
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Appearance; 	Tony Petrich, 	on his 	own behalf.
Before Morgenstern, 	Burt and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This matter 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on appeal 	by 	Charging
Party, 	Tony Petrich, 	of a PERB administrative 	law 	judge's 	(ALJ)
refusal 	to allow a pre-hearing 	amendment 	to 	the 	complaint 	issued
in 	the 	above-listed 	cases. 	While 	noting various 	"technical
problems" 	with 	the proposed 	amendment, 	the ALJ based her 	decision
primarily on her 	conclusion 	that 	allowance 	of 	the 	amendment 	would
circumvent 	the 	investigatory procedures 	established 	by 	PERB.
On appeal, 	Charging Party asserts 	that 	there were 	no
technical problems 	with 	the proposed 	amendment, 	and 	that 	the 	ALJ
erred by not 	determining herself 	whether 	the 	amendment 	stated 	a
prima 	facie 	case.
For 	the reasons 	that 	follow, 	we affirm the disallowance of
the 	proffered 	amendment.
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PROCEDURAL 	SUMMARY
Both 	cases 	were before 	the 	Board 	earlier 	as 	appeals 	of
partial 	dismissals. 	The partial 	dismissals 	were affirmed 	in
Riverside 	Unified School 	District 	(1985) 	PERB Decision No. 	510
and 	Riverside 	Unified 	School 	District 	(1985) 	PERB Decision
No. 	513. 	The remaining allegations, 	listed below, 	were the
subject 	of 	complaints 	against 	the 	Riverside 	Unified 	School
District 	(District). 	The complaints 	alleged various 	acts 	of
reprisal 	for 	engaging 	in 	activities 	protected 	under 	the
Educational 	Employment 	Relations 	Act 	(EERA).1 The cases 	were
later 	consolidated.
Case No. 	LA-CE-2112
1. 	Placement 	of 	a letter 	from Principal Mary Ann 	Sund,
regarding work 	keys, 	in Charging Party's personnel 	file on
December 10, 	1984.
2. 	Placement of a letter 	from Sund, 	regarding Charging
Party's 	absence 	from work, 	in his personnel 	file on December 	11,
1984.
3. 	Placement of a letter 	from Sund, 	regarding obtaining
work keys prior 	to beginning work, 	in 	Charging 	Party's 	personnel
file on December 19, 	1984.
Case No. 	LA-CE-2130
A. 	Placement of a correction memo by Sund, 	erroneously
dated January 8, 	1984 	(should be 1985), 	in Charging Party's
1EERA 	is 	codified 	at 	Government 	Code section 	3540 	et 	seq.
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personnel 	file. 	The 	memo concerned 	Charging 	Party's 	alleged
refusal 	to 	follow 	instructions 	regarding 	removal 	of 	leaves.
B. 	Sund's 	recommendation 	that 	Charging 	Party be 	dismissed
as 	a result 	of 	the January 8, 	1985 	meeting with Charging Party,
memorialized 	in Sund's January 17, 	1985 memo.
C. 	Assistant 	Superintendent 	Frank 	Tucker's 	January 30, 	1985
letter 	to Charging 	Party 	(placed 	in 	the personnel 	file 	and 	sent
to payroll) 	advising him 	that his 	pay would be 	docked 	for 	any day
he 	is 	absent due 	to 	illness 	from February 8, 	1985 	to June 	30,
1985, 	unless 	he provided a doctor's 	written verification of
illness.
On June 18, 	1985, 	Charging Party filed a proposed 	"First
Amended Charge" 	alleging that, 	on June 5, 	1985, 	when viewing his
personnel 	file, 	he 	found 	that 	the 	following documents had been
placed 	there:
I. 	December 	3, 	1984 	letter 	from Charging Party to Sund
confirming 	the 	results 	of a meeting on November 	20, 	1984
concerning 	the 	union's 	right 	to a bulletin board at 	the worksite,
and 	response 	from 	Sund on 	same 	date.
II. 	January 8, 	1985 	letter 	from Tucker 	to Charging Party
explaining 	why 	it 	would be 	improper 	for 	Sund 	to accept 	a
Christmas 	gift 	(a hubcap) 	from Charging Party, 	and asking that
it be picked 	up at his 	office.
III. 	November 	6, 	1984 	letter 	from Sund 	to Charging Party's
union 	representative, 	Alan Aldrich, 	regarding Charging Party's
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failure 	to 	schedule 	a 	meeting 	within 	the 	time 	Sund 	requested.
The meeting 	concerned 	a 	complaint 	against 	Charging 	Party made 	by
another 	employee.
Charging 	Party does 	not 	specifically allege 	that 	the 	contents
of 	the documents 	constitute 	reprisal, 	but 	that 	the placement of
documents 	in his personnel 	file 	without prior notice 	to him
constitutes 	the unlawful 	conduct. 	He claims 	that 	the placement
of 	these documents 	in his personnel 	file was 	in reprisal 	for his
various 	protected 	activities, 	and 	that 	the 	lack 	of prior 	notice
violated 	the 	existing 	agreement 	between 	the 	District 	and 	the
California School 	Employees Association, 	as 	well as past
practice. 	Further, 	he asserts 	that 	such violation constitutes 	an
unlawful 	unilateral 	change.
DISCUSSION
PERB 	Regulation 	326472 provides 	for 	amendments 	to 	complaints
at 	the pre-hearing 	stage. 	The 	regulation directs 	the 	Board 	agent
2 PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 et seq. 	At 	the time in question,
Regulation 	32647 provided 	as 	follows 	(effective 	November 	9,
1985, 	this Regulation was changed):
Amendment 	of 	Complaint 	Before 	Hearing.
(a) 	The 	charging party may move 	to amend 	the
complaint. 	Before hearing, 	the charging
party may move 	to amend 	the 	complaint 	by
filing 	an amended 	charge 	and 	request 	to amend
complaint 	with 	the 	Board 	agent 	in compliance
with Section 32615. 	If 	the Board agent
determines 	that 	amendment 	of 	the 	complaint
is 	appropriate, 	the Board agent shall 	issue
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to 	issue 	an amended 	complaint 	if he or 	she deems 	such amendment
to be 	"appropriate." 	The 	Board agent 	is 	further 	directed 	to
refuse 	to 	issue 	an amended 	complaint 	if 	the proposed 	amendment
does 	not 	state 	a prima 	facie 	case.
an 	amended 	complaint 	in accordance 	with
Section 32640.
(b) 	If 	the Board agent 	finds 	that 	the
pre-hearing 	amendment 	to 	the 	charge does 	not
result 	in the 	establishment 	of 	a prima 	facie
case, 	the Board agent 	shall 	refuse to amend
the 	complaint. 	The 	charging party may
appeal 	a 	refusal 	to 	amend 	the 	complaint 	in
accordance 	with 	Section 	32635.
In 	the 	instant 	case, 	the 	ALJ based her 	disallowance 	of 	the
amendment 	primarily 	on her 	view 	that 	allowing 	the 	amendment
would 	circumvent 	the 	investigatory procedures 	established 	by 	the
Board.3 She 	was 	presumably referring 	to the procedures 	for
the processing 	of 	original 	charges 	established by PERB 	Regulation
32620. 	While 	it 	is 	certainly preferable 	that 	charging parties
include 	all possible 	allegations 	in 	their 	original 	charges 	prior
to the 	issuance of a complaint, 	the existence of 	Regulation 	32647
33 The	The 	ALJ also noted other perceived deficiencies, 	most
notably, (1) 	the 	failure 	of 	Charging 	Party 	to serve 	the proposed
amendment on 	the District's 	attorney of 	record, 	and 	(2) 	that
some 	of 	the 	allegations 	seem to merely set 	forth arguments 	in
support 	of 	the pending complaint. 	We 	find no merit 	in 	these
contentions. 	While 	it may have been courteous 	to serve 	the
District's 	attorney of 	record 	rather 	than 	the 	District
superintendent 	(who was served), 	Regulation 32142 provides 	that,
in the case of a public school 	employer, 	the superintendent 	is 	a
proper 	recipient of 	service. 	The allegations 	in the proposed
amendment 	are of 	no direct 	relevance 	to 	the allegations 	in 	the
pending complaint. 	Further, 	Charging 	Party clearly asserts 	that
the 	new allegations 	constitute 	independent 	violations 	of 	the Act.
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reflects 	that 	post-complaint 	amendments 	are 	specifically
contemplated 	by 	the 	Board 	and 	are 	not 	inherently 	improper.
If 	the ALJ meant 	to 	imply 	that post-complaint 	amendments 	are
inherently improper, 	that view is erroneous. 	The ALJ, 	instead,
may have 	been 	asserting 	that 	economy and 	fairness 	would 	be 	better
served by the 	filing of 	a new and 	separate 	charge. 	The amendment
was 	timely on 	its 	face, 	therefore, 	it could have been 	filed as 	a
new charge. 	Regardless 	of what 	the ALJ actually intended, 	her
stated 	reason 	for disallowing 	the 	amendment 	is 	too 	vague 	to allow
us 	to 	conclude 	whether 	or 	not 	she properly entertained 	the
amendment pursuant to Regulation 32647(a), 	i.e., 	whether 	the
amendment was 	"appropriate." 	However, 	it 	is not necessary to
remand 	for 	clarification of 	the disallowance, 	for 	the 	record 	is
sufficient 	to allow 	an 	independent 	review of 	the propriety of 	the
amendment.
Certainly, 	potential prejudice 	to the opposing party 	is 	a
major 	consideration 	in determining 	whether 	an amendment 	is 	to be
allowed.4 	Absent 	undue prejudice 	to the opposing party, 	where
a 	timely 	amendment 	is 	closely 	related 	to 	the 	allegations 	in 	the
4The National 	Labor 	Relations 	Board 	(NLRB) 	generally
allows 	post-complaint 	amendments 	where 	such amendments 	do 	not
prejudice the respondent. 	See, 	e.g., 	Arkansas 	Best Freight
System, 	Inc. 	(1981) 	257 NLRB No. 	63 	[107 LRRM 1496] and Clinton
Corn Processing Co. 	(1980) 	253 NLRB No. 	84 [106 LRRM 1039].
Potential prejudice 	to the 	opposing party 	is 	also 	the 	critical
factor 	used by both 	the 	California 	and 	federal 	courts 	in
determining 	the allowance of amendments. 	Witkin, 	California
Procedure, 	3d Ed., 	V. 	5, p. 	537; Wright and Miller, 	Federal
Practice and Procedure, 	V. 	6, 	section 1484.
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pending complaint, 	the amendment 	should be allowed. 	However,
where 	a 	timely amendment has 	only a 	tenuous 	relation 	to 	the
pending complaint or 	is 	wholly unrelated, 	prejudice 	is 	more
likely because 	the 	respondent 	would have 	to defend 	against 	an
unanticipated 	claim. 	Where 	new allegations 	arise out 	of 	the
same 	facts 	and circumstances 	as 	those 	in a pending complaint,
the allowance 	of 	an 	amendment 	serves 	the principles 	of 	economy
and 	finality. 	In contrast, 	where an amendment 	is 	unrelated to a
pending 	complaint, 	these principles 	are not 	necessarily served.
Under 	some 	circumstances, 	an unrelated amendment may be better
characterized 	as 	a new charge 	and best 	filed as 	such.5
In the 	instant 	case, 	the circumstances 	surrounding 	Charging
Party's 	proffered 	"amendment" 	militate against 	its 	allowance.
The new allegations 	do not have 	any direct 	relevance 	to those 	in
the complaint. 	While 	some of 	the allegations 	in the 	complaint
also 	involve placement 	of particular 	documents 	in 	Charging
Party's personnel 	file, 	the gravamen of the allegations 	in the
amendment differs 	in 	that 	it 	is 	the placement without prior
notice that allegedly constitutes 	reprisal. 	Further, 	the
existing 	allegations 	relate 	to actions 	taken 	in December 	1984
and January 	1985. 	The amendment 	relates 	to actions 	discovered
in June 	1985. 	All 	three of 	the documents 	referenced 	in the
5We 	do not 	mean 	to 	imply 	that 	all 	post-complaint 	amendments
which 	are 	not 	closely 	related 	to 	the pending 	complaint 	should be
disallowed. 	In some circumstances, 	such amendments 	do serve 	the
principles 	of 	fairness, 	economy and 	finality and, 	therefore,
should 	be 	allowed.
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amendment 	were 	mentioned 	in 	Charging 	Party's 	original 	charges,
but 	in conjunction 	with 	allegations 	later 	dismissed.
We 	note 	that 	the hearing 	on 	the 	existing 	complaint has 	been
completed 	and 	the 	matter has 	been 	submitted 	to 	the ALJ 	for
decision. 	We 	also note 	that 	the proffered 	amendment 	is
apparently timely, 	independent 	of 	the 	filing date of 	the 	original
charge. 	Further, 	if 	the attempted amendment 	is 	treated as 	a new
and separate 	charge, 	rather 	than as 	an amendment 	to the 	existing
complaint, 	Charging 	Party will have 	the opportunity to clarify
his 	allegations 	and, 	should 	they be deemed 	insufficient, 	he will
have 	the 	opportunity to amend. 	Given 	these 	considerations 	and
the 	lack of 	relatedness 	to the existing complaint, 	we 	conclude
that 	the proffered 	amendment 	should be 	disallowed. 	However, 	we
will 	consider 	Charging 	Party's 	filing 	as 	a 	new and 	separate
charge, 	constructively filed as of June 18, 	1985, 	the date of
its 	filing 	as 	an attempted amendment.
ORDER
We hereby AFFIRM the disallowance 	of 	the proffered 	amendment.
The 	general 	counsel 	is 	instructed 	to process 	the proffered
amendment 	as 	a new and separate charge, 	in accordance with PERB
Regulation 	32620.
Members 	Burt 	and Porter 	joined 	in 	this 	Decision.
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