Hacienda La Puente Unified School District * * * SUPERSEDED by amendment to EERA section 3543.5, subdivision (a) Stats. 1989, Ch. 313 (PERB 0741E)

SUPERCEDED by amendment to EERA section
3543.5, subdivision (a) Stats. 1989, Ch. 313
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PAT M. 	MILLER,
Charging 	Party,
V .
HACIENDA 	LA PUENTE 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
) 	Case No. 	LA-CE-2542
PERB Decision No. 	741
June 	16, 	1989
)
)
)
)
Appearances: 	Tremaine, 	Shenk, 	Stroud & Robbins by Dan L. 	Stroud,
Attorney, 	for Pat M. 	Miller; 	Wagner, 	Sisneros & Wagner by John J.
Wagner, 	Attorney, 	for Hacienda La Puente Unified School 	District.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case arose out of an allegation by
Pat M. 	Miller 	(Miller) 	that the Hacienda La Puente Unified School
District 	(District) 	violated section 3543.5(a) 	and 	(b) 	of the
Educational Employment Relations Act 	(EERA or Act)1 when it
failed 	to 	consider 	Miller 	for 	reemployment 	following 	her
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3 543.5 reads, 	in pertinent part:
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.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
)
)
)
)

termination. 	Miller alleges 	that 	this 	adverse 	action was 	taken
in retaliation against 	her because 	she 	exercised rights 	protected
under the EERA, 	specifically, 	her meeting and 	conferring with the
executive director of 	the Hacienda 	La 	Puente Teachers
Association, 	CTA/NEA about matters concerning wages, 	hours, 	and
other terms 	and 	conditions 	of 	employment. 	The matter was 	heard
by 	a 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
administrative law judge 	(ALJ). 	Pursuant to the Board's decision
in Hacienda 	La 	Puente Unified 	School 	District 	(1988) 	PERB
Decision No. 	685, 	the ALJ 	found that Miller was 	not an employee
at the time 	she 	sought reemployment and, 	therefore, 	lacked
standing to 	invoke the protection of 	EERA. 	Accordingly, 	the ALJ
dismissed 	the 	complaint.
The 	charging party 	filed 	exceptions 	alleging 	that 	the ALJ's
reliance on Hacienda 	La Puente Unified School 	District, 	supra.
PERB Decision No. 	685 was misplaced as 	a petition for writ of
review was 	pending 	at 	the 	time 	the ALJ 	issued her proposed
decision. 	The 	District 	filed a 	response 	and excepted to 	certain
ALJ 	findings 	of 	fact 	based 	on hearsay 	statements.
The Board, 	after review of the entire record, 	adopts the
attached 	findings 	of 	fact 	and 	conclusions 	of 	the ALJ, 	and affirms
her decision 	consistent with 	the 	discussion below.
On March 22, 	1989, 	subsequent to the ALJ's proposed
decision, 	the Court of Appeal, 	Second Appellate District,
Division Four, 	denied the petition 	for writ of 	review.
Accordingly, 	the Board's decision in PERB Decision No. 	685 became
2
--------------------· --·
2

final. 	Consistent with PERB Decision No. 	685, 	the Board affirms
the ALJ's 	conclusion that Miller was 	not 	an 	employee 	at 	the 	time
she 	sought reemployment and, 	therefore, 	lacked 	standing under the
EERA. 	As 	the Board 	finds 	that Miller has 	no 	standing to 	invoke
the protection of 	EERA, 	it 	is 	unnecessary to consider the merits
of 	the 	complaint.2
ORDER
The 	complaint 	against 	the 	Hacienda 	La 	Puente 	Unified 	School
District 	is 	hereby 	DISMISSED 	IN ITS 	ENTIRETY.
Member Camilli 	joined 	in this 	Decision.
Member Craib's 	dissent begins 	on page 	4.
2Similarly, it 	is 	also unnecessary to 	address 	the 	District's
exceptions 	to 	certain ALJ 	findings 	of 	fact 	based on hearsay
statements.
W	
3

Member Craib, 	dissenting: 	For the reasons 	set 	forth in my
dissenting 	opinion 	in Hacienda 	La 	Puente 	Unified 	School 	District
(1988) 	PERB Decision No. 	685 	[12 PERC 19113], 	I believe strongly
that applicants 	for employment or reemployment do. have 	standing
to 	invoke 	the protections 	of 	the 	Educational 	Employment 	Relations
Act. 	Accordingly, 	I would remand this matter to the
administrative 	law 	judge 	for a determination of 	the merits 	of
Pat M. 	Miller's 	retaliation claim against 	the 	Hacienda La 	Puente
Unified 	School 	District.
-
44

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
PAT M. 	MILLER,
Charging 	Party,
V.
HACIENDA LA 	PUENTE UNIFIED 	SCHOOL
DISTRICT,
Respondent.
) 	Unfair 	Practice
Case No. 	LA-CE-2542
PROPOSED 	DECISION
(8/30/88)
)
)
)
)
)
)
)
)
)
)
Appearances: 	Tremaine, 	Shenk, 	Stroud & Robbins by Dan L.
Stroud 	for Pat M. 	Miller; 	Wagner, 	Sisneros 	& Wagner by John J.
Wagner 	for 	Hacienda 	La 	Puente Unified 	School 	District.
-
Before W. 	Jean Thomas, 	Administrative Law Judge
I. 	INTRODUCTION
This case concerns 	a charge by Pat. 	M. 	Miller, 	the Charging
Party, 	that 	the Hacienda 	La 	Puente Unified 	School 	District
(hereafter 	District 	or 	Respondent) 	took 	adverse 	action 	against
her 	by 	failing 	to 	rehire 	her 	as 	a 	teacher/counselor 	in 	its
alcohol 	treatment 	program while 	offering 	employment 	to 	and/or
hiring 	other 	individuals 	as 	teacher/counselors 	in the 	same
program between June 	1986 	and April 	1987. 	The Charging 	Party
claims 	that 	the 	failure 	to 	reemploy her was 	motivated 	by 	the
feelings 	of 	union 	animus 	of 	the 	part 	of 	her 	former 	supervisors
because 	she 	sought 	the 	assistance 	of 	the Hacienda 	La 	Puente
Teachers Association with 	regard 	to 	various 	employment 	matters.
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.

The 	employer 	denies 	any unlawful 	conduct 	against 	the
Charging Party, 	claiming, 	among other things, 	that Miller was
not 	reemployed 	by 	the 	District 	for 	valid 	employment-related
reasons.
II. 	PROCEDURAL HISTORY
On April 	20, 	1987, 	Pat M. 	Miller 	(hereafter Miller or
Charging 	Party) 	filed 	an Unfair 	Practice Charge with 	the 	Public
Employment 	Relations 	Board 	(hereafter 	PERB or 	Board) 	alleging
that 	the 	Hacienda 	La 	Puente Unified 	School 	District 	violated
section 	3543.5(a) 	of 	the Educational 	Employment Relations Act
(hereafter 	EERA or Act)1 when 	it 	terminated her 	employment
with the District 	on June 	13, 	1986, 	and thereafter 	failed to
reemploy her 	in 	retaliation 	for 	her 	participation 	in 	activities
protected 	under 	the Act.
Following 	an 	investigation of 	the 	charge 	by 	a 	PERB 	Board
agent, 	the Charging 	Party 	filed 	a 	First Amended Charge 	on
June 	1, 	1987, 	that modified the 	allegations presented 	in the
original 	charge.
On June 4, 	1987, 	a PERB Complaint was 	issued which 	alleged
that 	the District 	violated 	section 	3543.5(a) 	and, 	derivatively,
section 	3543.5(b)2, 	when 	it 	failed 	to 	consider Miller 	for
1 The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Unless otherwise 	indicated, 	all 	statutory references
herein 	are 	to 	the Government Code.
2Section 3543.5 	reads, 	in relevant part:
It 	shall 	be unlawful 	for 	a 	public 	school
employer 	to: 22

reemployment 	following 	her 	termination 	because 	of 	her 	exercise
of 	protected 	rights, 	while offering 	employment 	to 	and/or 	hiring
four other 	individuals 	between June 	1986 	and April 	20, 	1987.
(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.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
Concurrent with the 	issuance of 	the Complaint, 	the
allegation 	concerning 	the 	unlawfulness 	of 	the 	District's
termination of Miller's 	employment 	in June 	1986 was 	dismissed
by 	the 	Board 	agent 	as 	untimely.
The District 	filed 	an Answer 	to 	the Complaint 	on
June 22, 	1987, 	which denied all 	factual 	allegations 	and
asserted 	specified 	affirmative 	defenses.
An 	informal 	settlement 	conference was 	held on July 	1, 	1987;
however, 	the dispute was 	not 	resolved.
A 	pre-hearing 	conference was 	subsequently 	held 	on
September 	1, 	1987, 	immediately preceding 	a 	formal 	hearing held
by the undersigned on September 1, 	2, 	3 	and November 	18, 	1987.
Post-hearing 	briefs 	were 	filed 	and 	the 	case was 	submitted
for proposed decision on March 21, 	1988.
III. 	FINDINGS OF FACT
A. 	Background
The 	focus 	of 	this 	case 	is 	the District's 	adult 	school. 	At
issue, 	specifically, 	is 	the operation of one of 	its 	adult
3

education programs 	called 	the 	"Court 	Programs." 	The 	court
programs 	offer 	classes 	for 	people 	referred 	by 	court 	order
following 	a 	conviction 	for 	driving while 	intoxicated.
Prior 	to 	her 	termination, 	Miller was 	employed 	as 	an
adult-school 	teacher 	in the 	alcohol 	treatment 	component 	of 	the
court programs 	located 	at 	the Proctor 	school 	site. 	Miller, 	who
was 	known to 	her 	former colleagues 	as 	"Mickey," 	worked 	as 	a
teacher/counselor 	in 	the 	program 	for 	"Understanding
Alcoholism." 	Her duties 	as 	a 	teacher/counselor 	included
interviewing 	court-referred 	clients, 	facilitating 	group
counseling 	sessions, 	preparing written 	individual 	client
progress 	reports 	and 	communicating 	with 	court 	and 	probation
personnel 	about 	client 	progress.
Normally, 	Miller worked 	a 	14-hour-per-week schedule, 	which
was 	divided between two days 	of 	seven hours 	per 	day. 	By virtue
of 	the 	number 	of 	regularly 	assigned weekly hours, 	Miller was
classified as 	a temporary, 	part-time, 	certificated employee.
Temporary employees 	were 	hired 	on 	a 	semester-to-semester
basis. 	Miller 	also worked 	as 	a 	substitute 	teacher 	for 	the
court programs.
As 	an adult 	school 	teacher, 	Miller was 	a member of 	the
certificated 	bargaining 	unit 	exclusively 	represented 	by 	the
Hacienda La Puente Teachers Association, 	CTA/NEA 	(HLPTA). 	At
all 	times 	relevant 	to this 	case, 	she was 	also 	a member of HLPTA.
A	
4

Miller's 	immediate 	superior 	during 	the 	entire 	period 	of 	her
employment 	with 	the 	District was 	Madelyn Henderson-Maine.
Henderson-Maine was 	the 	coordinator 	of 	the 	court 	programs.
Although Henderson-Maine was 	a member 	of 	the 	same 	bargaining
unit 	as 	Miller, 	she 	exercised 	ostensible 	supervisory 	authority
over 	the 	day-to-day 	activities 	of 	all 	the 	rank-and-file 	court
programs 	staff 	members3. 	Among 	other 	things, 	Henderson-Maine
scheduled 	the weekly hours 	of 	work 	and 	the 	assignments 	of 	the
teacher/counselors, 	issued memoranda 	about 	various 	matters
related 	to 	the operations 	of 	the court 	programs, 	conducted
regular 	staff 	meetings 	and 	consulted with 	and 	made 	effective
recommendations 	to 	the 	adult 	school 	administrators 	concerning
the management 	of 	the court programs. 	For example, 	staff
requests 	for 	such 	items 	as 	overtime or 	leaves 	of 	absence were
recommended 	for 	approval 	by Henderson-Maine 	before 	being
approved 	by 	the 	administration.
Employees 	in 	the 	program 	regarded 	Henderson-Maine 	as 	their
immediate 	supervisor 	and 	considered 	her 	to 	be 	a 	very
influential 	person 	in the court 	programs. 	Until 	December 	1985
Henderson-Maine's 	immediate 	supervisor was 	Don Roth, 	the
director 	of 	the District's 	adult 	education program. 	Roth died
in December 	1985 	and was 	succeeded 	by Lance Reuther. 	Reuther
was 	the 	director 	at 	the 	time 	of Miller's 	termination 	in June
1986.
3 In 	October 	1986 Henderson-Maine was 	promoted 	to 	a
position 	outside 	the 	bargaining 	unit 	although 	her 	working 	title
remained 	Coordinator 	of 	Court 	Programs.
5

B. 	Miller'	--------------------	s 	Contacts with 	the HLPTA Regarding 	Employmen	- 	--	t
Matters
On or about 	September 	18, 	1985, 	Miller had a telephone
conversation with Roth. 	During 	their 	discussion Miller 	stated
that 	she 	had 	concerns 	about 	her 	job 	security with 	the
District. 	In exploring 	the 	reasons 	for her concerns, 	Miller
said 	that 	she 	felt 	threatened by Henderson-Maine. 	The 	basis
for Miller's 	feelings 	are unknown.
On September 	19, 	1985, 	Miller had two telephone
conversations with Ray Lopp, 	the 	executive director 	of 	the
HLPTA, 	to discuss 	her objection to not 	being 	paid 	for 	four
hours 	of work performed on September 	16, 	1985. 	On or 	about
September 	19 	Henderson-Maine 	had 	notified Miller 	that 	she was
disallowing 	four 	of 	the 	seven hours 	that Miller worked 	on
September 	16 	because 	she 	felt 	that Miller 	had 	not 	seen enough
clients 	on 	that 	date 	to 	justify payment 	for 	the 	full 	seven
hours.
Lopp 	advised Miller 	to 	discuss 	the 	problem directly with
Roth 	rather 	than with Henderson-Maine 	in 	order 	to 	get 	the
matter 	resolved. 	Lopp 	further 	indicated 	that 	he would 	tell
Roth 	that Miller was 	coming 	to 	see 	him 	and 	offered 	to 	accompany
Miller 	if 	she wanted his 	presence. 	Miller 	declined Lopp's
offer, 	stating 	that 	she preferred 	to 	go 	alone 	and 	keep 	the
discussion 	informal.
It 	is 	not 	known whether 	Lopp 	actually called Roth before
Miller went 	to 	see him. 	However, 	Miller called Roth 	and went
66

to his 	office 	the 	next day to discuss 	the matter.
During 	their 	face-to-face 	conversation 	on 	September 	20,
Miller 	told 	Roth 	that 	the 	next 	day 	after 	their 	telephone
discussion, 	Henderson-Maine came 	to Miller 	and 	informed 	her
that 	she would 	not 	be paid 	for 	four 	hours 	of 	the 	time worked 	on
September 	16 	for 	the 	reason 	already stated 	above. 	Roth 	told
Miller 	not 	to worry 	about 	being 	paid.
After 	the 	September 	20 	meeting Miller 	had 	no 	further
discussion 	about 	this 	pay 	issue with 	either 	Henderson-Maine 	or
Roth. 	Although Miller 	claims 	that 	Roth 	told her 	that 	he 	spoke
with Henderson-Maine 	about Miller's 	complaint, 	Henderson-Maine
denies 	that 	Roth 	ever 	spoke with her 	about 	Miller's 	complaint
concerning 	her 	disallowance of 	the 	four 	hours 	or 	about Miller's
September 	20 meeting with him. 	Nonetheless, 	Miller did 	receive
compensation 	for 	the disputed 	hours 	in her 	next 	pay warrant.
On or 	about 	September 	23, 	1985, 	Henderson-Maine gave Miller
a memo which 	read 	as 	follows:
Because 	of 	our 	very 	large 	sign 	in 	the main
office, 	I would 	like to make a 	request 	that
you not 	smoke 	in your office. 	It 	seems 	a
little unfair 	to 	our 	clients 	to 	suggest 	that
they not 	smoke when we, 	as employees, 	are
permitted to do 	so.
Please 	feel 	free 	to 	take cigarette breaks 	as
often 	as you 	feel 	necessary. 	There 	are
benches 	and 	tables 	outside of 	the 	cafeteria
which 	seem 	suitable.
Thank you 	for 	being 	understanding 	and
sensitive, 	as usual, 	to our effort to remain
fair to all.
77

Henderson-Maine 	prepared 	the 	memo 	the 	day 	after 	Eleanor
Acosta-Santana, 	a 	teacher/counselor 	and 	also 	the 	staff 	advisor,
informed her 	that 	Rose Alvarez, 	another 	part-time
teacher/counselor, 	left work 	feeling 	ill 	because 	of Alvarez's
exposure 	to Miller's 	cigarette 	smoke. 	Alvarez's 	office 	space
was 	adjacent 	to Miller's 	office. 	Neither office 	had 	any
ventilation. 	Acosta-Santana worked 	in the court 	programs 	as 	a
teacher/counselor. 	In addition, 	she 	served 	as 	the 	staff
advisor, 	a 	non-supervisory duty. 	Acosta-Santana 	reported
directly 	to 	Henderson-Maine.
After 	receiving 	this memo, 	Miller 	telephoned Lopp 	the 	same
day and told him, 	"She's at me again 	. 	. 	., 	she knows that 	I'm
addicted 	[to cigarettes] 	. 	. 	., 	this is just another form of
harassing 	me." 	Miller 	also 	complained 	that 	Henderson-Maine 	had
scheduled her 	(Miller) 	for 	seven hours 	of work but, 	earlier 	in
the 	day, 	she 	informed Miller 	that 	she 	had 	approval 	to 	pay her
for 	only six 	hours. 	Miller 	had 	told Henderson-Maine 	that 	she
would 	not 	work 	the 	additional 	hour 	without 	receiving
compensation. 	She did 	not work the disputed 	hour.
During 	their 	September 	23 	conversation, 	Lopp 	advised Miller
to document 	things 	that were 	happening 	to her 	at 	the worksite.
Lopp 	took no 	action with 	the 	District 	on Miller's 	behalf
concerning 	Henderson-Maine's 	memo.
After Miller 	received 	the September 	23 	memo, 	there was 	no
further 	discussion 	between Miller 	and 	Henderson-Maine 	about
8
a

Miller's 	smoking 	in her 	office or 	her working 	the 	seven hour
schedule 	as 	assigned.
On January 30, 	1986, 	a memo was 	issued to all court
programs 	staff 	highlighting 	the discussion 	that 	had 	occurred 	at
a 	staff meeting 	held January 23, 	1986. 	One 	item quoted
Henderson-Maine 	as 	stating 	that 	a 	full-time certificated
position might 	open 	in 	the 	court 	programs within 	the 	next
year.
Upon 	receipt 	of 	this memo, 	Miller 	called Lopp 	sometime 	in
early February 	to 	discuss 	her 	interest 	in 	being 	appointed 	to
the new position, 	if created. 	She 	also 	spoke with Lopp 	about
her 	ongoing 	fear 	of 	losing her 	job. 	As 	stated earlier, 	the
factual 	basis 	for Miller's 	fear 	in this 	regard 	is 	unknown.
Additionally, 	Lopp's response, 	if 	any, 	to this particular
comment 	is unknown. 	Lopp did advise her 	to keep copies 	of 	all
communications 	that 	she 	received 	from the 	District 	concerning
employment matters. 	He 	also 	advised Miller 	to 	give
Henderson-Maine 	a written 	request 	expressing 	her 	interest 	in
being 	considered 	for 	the 	full-time 	position 	and 	to 	request 	a
copy of 	the 	job posting.
In 	response to Lopp's 	suggestion, 	Miller wrote 	a 	letter 	to
Henderson-Maine on February 4, 	1986, 	stating 	simply that 	she
would 	like 	the 	position 	and 	hoped 	that 	Henderson-Maine would
consider 	her 	request when a 	selection was made. 	She 	also
requested 	a 	copy of 	the 	job posting.
9
9

On February 5, 	1986, 	Henderson-Maine 	issued 	a memo 	to 	all
certificated 	court 	staff 	that 	set 	forth 	some 	specifics 	about
job postings 	for 	all 	new certificated 	positions. 	She 	stated
that 	the 	new positions 	(rather 	than 	the 	single 	position
mentioned 	in 	the January 30 memo) 	would 	be 	"open 	and
competitive" 	and 	that 	an 	interview panel was 	being 	considered
for 	applicants 	for 	each position. 	She 	assured 	the 	staff 	that
as 	soon 	as 	a decision was made 	about 	the posting 	for 	new
positions, 	current 	staff would be 	the 	first 	to 	know.
Prior 	to 	June 	1986 	the District 	employed 	seven
teachers/counselors, 	including Miller, 	on a temporary,
part-time basis 	to work 	a 	14-hours-per-week schedule 	in 	the
court programs. 	In a memo to 	these employees 	dated
February 27, 	1986, 	Henderson-Maine informed them that, 	as part
of 	the 	reorganization of 	the court programs, 	there was 	a 	strong
possibility that 	over 	the 	next 	five months 	four 	or 	five
30/32-hours-per-week positions 	would 	be 	posted 	as 	job
openings. 	Henderson-Maine went on to 	state:
. 	. 	. 	I 	am very sensitive and concerned that
some 	present 	staff 	members will 	not 	remain
so, 	due to the change. 	If 	I can assist you
in securing employment elsewhere, 	please 	let
me 	know.
Please 	refer 	any questions 	regarding 	these
postings 	to me 	or Eleanor Acosta-Santana.
Any 	other 	information 	from 	staff 	will 	be
completely erroneous. 	(Original 	emphasis)
Miller 	called 	Lopp 	about 	Henderson-Maine's 	February 	27 	memo
shortly 	after 	receiving 	it. 	She 	called 	him because 	of 	her
10

lingering 	fears 	about 	losing 	her 	job. 	Lopp told 	her 	that
nothing 	could 	be 	done 	about 	her 	fears 	unless 	in 	fact 	she was
not 	appointed 	to 	one of 	the 	new positions. 	He 	advised 	her 	to
continue 	documenting 	everything 	of 	concern 	to 	her 	that 	occurred
on the 	job. 	Other 	than that, 	nothing 	further was 	said or done
by Miller 	or 	Lopp with 	respect 	to 	Henderson-Maine's 	February 	27
memo.
On April 	17, 	1986, 	Miller 	called Lopp 	to 	complain 	about 	her
client counseling 	assignments. 	According 	to Miller, 	the number
of 	client 	appointments 	booked 	for 	her 	on Wednesdays 	did 	not
allow her 	time 	for 	breaks 	to 	go 	outside 	and 	smoke or 	to 	have
lunch. 	Miller 	testified 	that 	she was 	"going bananas" 	because
she 	could not 	smoke 	from the 	time 	she went 	to work until 	her
work day ended. 	At 	that 	time Miller was 	working 	her 	seven-hour
assignments 	mainly 	from 	12 	noon 	or 	1:00 	p.m. 	until 	8:00 	or 	9:00
p.m. 	Miller 	felt 	that 	Henderson-Maine was 	being 	unfair 	to 	her
in 	the 	scheduling 	because 	the 	other 	teacher/counselors 	had 	time
during 	their 	assignments 	for 	short 	breaks. 	Miller 	also voiced
concern 	that 	the client bookings 	scheduled 	after 	June 	13, 	1986,
did 	not 	show 	assignments 	to 	any particular 	counselor.
At 	Lopp's 	request during 	the April 	17 	conversation, 	Miller
sent 	him copies 	of 	her 	appointment 	bookings 	for 	his 	review. 	A
day or 	two 	after 	their 	conversation, 	Miller 	called 	Lopp 	to 	see
if 	he 	had 	received 	and/or 	reviewed 	her 	booking 	assignments.
Lopp 	had 	received 	and 	reviewed 	them. 	He 	told Miller 	that 	he
11

was 	just 	going 	to 	keep 	the material 	for 	the time being. 	He
advised 	her 	to 	continue 	to 	keep her 	own documentation 	of 	all
communications, 	etc.
Following 	her 	discussion with Lopp, 	Miller 	gave 	a written
note 	to 	Henderson-Maine 	sometime 	in mid-May 	stating 	that 	she
was 	not 	getting her 	breaks 	because of 	overbookings. 	This 	note
made no 	mention of Miller's 	discussions 	with Lopp 	about 	this
matter 	nor 	did 	it 	indicate 	that 	a 	copy had 	been 	sent 	to Lopp.
In 	response to Miller's 	complaint, 	Henderson-Maine 	reviewed
Miller's 	counseling 	appointment 	bookings 	for 	the 	period 	from
January to May 1986. 	She gave Miller 	a memo on May 19, 	1986,
that 	summarized 	the 	amount 	of 	noncounseling 	or 	"free" 	time 	that
Henderson-Maine determined was 	available 	to Miller 	on 	each
Wednesday during 	that 	particular 	six-month 	period. 	The 	"free"
time was 	time 	available 	because 	clients 	failed 	to 	keep 	their
scheduled 	appointments. 	The 	amount of 	"free" 	time 	shown 	in the
summary varied 	from one 	and 	one-half 	to 	two 	and 	one-half 	hours
for 	each day that 	appointments 	were 	booked.
During 	her 	testimony, 	Miller 	admitted 	that
Henderson-Maine's 	assessment 	of 	the 	"free" 	time was 	correct.
However, 	she denied 	that 	she was 	able 	to 	take 	any personal
breaks 	or 	lunch during 	such periods 	because of 	the 	follow-up
paperwork that 	she was 	required 	to 	complete when 	clients 	did
not 	keep 	their 	appointments.
12

There 	is 	no 	evidence 	that Lopp ever 	spoke 	to
Henderson-Maine 	about 	this 	matter 	after Miller 	registered 	her
complaint with him. 	Nor 	is 	there 	any evidence 	that Miller 	and
Henderson-Maine 	ever 	had 	any dialogue 	about Miller's 	concern
after 	Henderson-Maine 	gave her 	the May 	19 	memo.
C. 	The Reorganization 	of 	the Court 	Programs
On May 1, 	1986, 	Henderson-Maine sent 	a 	letter to 	all
part-time 	certificated 	staff 	in 	the 	alcohol 	treatment 	program,
to 	inform them that 	all 	14-hour 	assignments would 	become
"obsolete" 	on June 	13, 	1986, 	which was the end of the 	spring
semester. 	The 	letter 	also 	stated 	that:
We will 	be posting 	five, 	30 	hour Adult
School Teacher positions May 19th, 	1986.
They are to be open 	and competitive, 	which
means 	that 	anyone meeting 	the school district
and 	county Office 	on Alcohol 	Programs
requirements, 	may apply. 	All posting will
include 	the 	knowledge 	and 	availability 	to
teach 	alcohol 	education, 	group 	facilitate
and perform one-on-one 	counseling, 	among
other 	responsibilities. 	All 	assignments 	are
evenings and Saturdays. 	. 	. 	.
Anyone wishing 	to 	apply for 	one of 	the positions was 	advised 	to
contact 	Henderson-Maine's 	office 	for 	an 	interview 	appointment.
The date 	scheduled 	for 	interviews was May 30, 	1986.
As 	soon 	as 	she 	received her 	letter, 	Miller 	called
Henderson-Maine 	to 	request 	an 	appointment. 	According 	to
Miller, 	Henderson-Maine 	responded 	by asking Miller 	if 	she
(Miller) 	did not 	think that 	her 	request was 	a 	bit 	"premature."
Nonetheless, 	Miller was given an appointment.
Toward 	the end of the month, 	Henderson-Maine 	issued 	a memo,
13

dated May 27, 	1986, 	to 	all 	staff who 	had 	requested 	interview
appointments, 	informing 	them that 	the District 	had decided 	to
cancel 	interview appointments 	for 	the 	time being. 	She 	promised
to 	keep 	everyone 	informed 	about 	further 	developments 	as 	early
as 	she could.
Upon 	receiving 	the May 27 memo, 	Miller was 	quite 	concerned
about 	the 	significance of 	this 	decision 	for her. 	She 	again
called 	Lopp 	to 	inform him of 	the 	latest 	development 	and 	to 	ask
if 	he knew what was 	going on. 	Lopp gave her 	no 	additional
information 	beyond what Miller 	already 	knew 	about 	the
situation.
Henderson-Maine's May 	27 	memo 	to 	the 	staff 	caused 	concern
among 	other 	certificated 	staff 	besides 	Miller. 	Rose Alvarez
and 	several 	other 	temporary counselors 	were 	in 	"plain 	limbo"
because 	after 	the 	interviews were 	cancelled, 	they did 	not 	know
where 	they 	stood with 	regard 	to 	their 	future 	employment 	status
with 	the District. 	The 	temporary employees 	knew that 	the
positions were 	to be 	filled by the beginning 	of 	July 	1986, 	but
they did 	not 	know who would 	be 	considered 	and 	eventually
selected 	for 	the 	five positions.
Just 	before July 1, 	1986, 	Alvarez was 	notified by
Acosta-Santana 	that 	she 	had 	been 	selected 	to 	fill 	one 	of 	the
30/32 	hour 	positions. 	Alvarez 	was 	not 	interviewed 	prior 	to
her 	selection.
Contois 	(Connie) 	Simpson was 	employed 	full-time 	by the
District 	as 	a 	social worker 	at 	the 	regional 	center 	for 	the
14

developmentally disabled. 	Simpson 	also worked 	ten 	hours 	per
week as 	a 	part-time 	teacher/counselor 	in the court 	programs.
Simpson was 	concerned 	about 	the 	reorganization because, 	as 	of
early June 	1986, 	none of 	the 	affected employees 	knew who was
going 	to 	be 	terminated 	or 	rehired. 	Sometime 	in 	late May or
early 	June 	1986 	Simpson 	telephoned 	Henderson-Maine 	about 	her
hours. 	Simpson needed to 	know 	if 	her position was 	in 	jeopardy
because 	of 	certain 	financial 	commitments 	that 	she had made, 	in
reliance 	on her 	part-time employment. 	Henderson-Maine 	told
Simpson 	that 	she did not 	see 	any problem for 	Simpson 	as 	far 	as
her 	hours were 	concerned. 	Henderson-Maine 	also 	stated
something 	to 	the 	effect 	that 	since
. 	. 	. 	change is inevitable, 	she hoped that
people would 	accept 	it 	and 	be mature 	about
it. 	However, 	if people go 	running to the
union, 	I can't guarantee anything.
At 	the 	time of 	their 	conversation, 	Simpson 	felt 	that
Henderson-Maine's 	comment 	about 	the 	union was 	personally
directed 	to 	her. 	Simpson did 	not 	respond 	to 	this 	comment 	or
seek clarification 	about 	its 	meaning 	from Henderson-Maine.
On either June 	12 or 	13, 	1986, 	Simpson was 	speaking with
Lance Reuther, 	Roth's 	replacement 	as Adult School Director, 	in
his 	office 	about 	her 	regional 	center 	activities. 	In the course
of 	their discussion, 	Reuther 	asked Simpson 	if 	she was 	going 	to
be working 	for 	the District 	during 	the 	summer. 	Simpson
indicated 	that 	she was 	uncertain 	about 	her 	job because 	she 	had
15

not 	received 	a 	contract. 	Reuther 	immediately called
Henderson-Maine 	to 	find 	out 	if 	there was 	a 	reason why 	Simpson
had 	not 	yet 	received 	a 	contract. 	Simpson does 	not 	know the
substance of Henderson-Maine's 	response. 	Nonetheless, 	she
received 	a 	contract 	for 	summer 	employment 	in 	the mail 	the next
day. 	Simpson's 	summer 	employment with 	the District 	remained on
a 	part-time basis.
Miller never personally informed Roth, 	Henderson-Maine, 	or
Reuther 	about 	any of 	her 	communications with Lopp 	about 	her
job-related concerns 	or 	complaints. 	She 	also 	has 	no 	knowledge
that 	Lopp 	ever 	spoke with Roth, 	Henderson-Maine 	or 	Reuther
about 	her 	contacts with him with 	regard 	to 	these matters.
D. 	Miller's 	Termination 	and 	Subsequent 	Employment
Contacts 	with 	the 	District
On or 	about June 	10, 	1986, 	Miller 	received 	a 	letter 	from
Reuther, 	dated June 9, 	1986, 	informing her that 	as 	a 	result of
the 	alcohol 	treatment 	program's 	reorganization 	and 	the
restructuring 	of 	staff 	assignments, 	her 	part-time 	assignment
was 	one 	of 	those which was 	eliminated. 	Reuther's 	letter went
on to 	state 	that:
As of June 13, 	1986, 	your employment with
the Alcohol 	Treatment 	Program expires.
Unless you direct us 	to the contrary, 	your
name will 	be 	carried 	on 	the 	substitute 	list
for Summer, 	1986, 	and school year, 	1986-87.
You will 	be considered 	for 	rehire 	if 	future
positions 	become 	available. 	You will 	be
receiving 	a 	formal 	letter 	of 	recommendation
in 	the 	next 	few days 	that 	could 	be used with
new potential 	employers 	if you wish.
16

On 	receiving 	this 	notice, 	Miller 	immediately called Lopp 	to
inform him that 	her 	employment was 	being 	terminated. 	It 	is 	not
known what, 	if 	any, 	advice or 	assistance Lopp offered or
provided 	to 	her 	at 	that 	juncture. 	The other 	part-time
teacher/counselor 	whose 	job was 	eliminated 	by 	the
reorganization was 	Paul 	Ramsey.
Miller's 	last 	day of 	employment with 	the District 	was
June 	13, 	1986. 	The other 	five 14-hour, 	teacher/counselor
positions 	were 	changed 	to 	30-hour 	positions 	and were 	filled 	by
the 	five 	incumbent 	14-hour, 	part-time 	teachers/counselors 	in
the 	alcohol 	treatment 	program.
As 	promised 	in his 	June 	9 	letter, 	Reuther provided Miller
with 	"An Open Letter of Reference," 	dated July 1, 	1986, 	which
verified her prior employment with the District. 	This 	letter
stated 	that Miller 	had 	been placed 	on 	the 	program's 	substitute
list.
In 	addition to 	her duties 	as 	a 	teacher/counselor 	and 	staff
advisor, 	Acosta-Santana was 	also 	responsible 	for 	calling
substitutes, 	when needed. 	Approximately four weeks 	after
Miller's 	termination, 	Acosta-Santana 	tried 	to 	telephone Miller
about 	taking 	a 	substitute 	assignment, 	but was 	unable 	to 	reach
her.
Shortly 	after 	attempting 	to 	call Miller, 	Acosta-Santana
discovered 	that 	Miller 	had 	not 	turned 	in 	her 	group 	notes 	for
approximately 	four weeks 	prior 	to 	the date of 	her 	termination.
Group 	notes 	must 	be 	prepared 	by the 	group 	facilitator 	to 	report
17

what 	transpires 	during 	each 	group 	session 	and 	are 	a 	requirement
of 	the 	program. 	The missing 	notes 	pertained 	to 	approximately
30 	clients 	seen 	by Miller 	during 	the 	four-week period.
Acosta-Santana 	discovered 	this 	omission while 	in 	the
process 	of 	preparing 	for 	a 	program audit 	by the Los Angeles
County contracting 	office. 	The District 	has 	a 	contract with
the county to 	provide the court programs. 	Consequently, 	the
county monitors 	the 	programs 	on 	a 	quarterly basis.
Acosta-Santana 	did 	not 	attempt 	to 	contact Miller 	about 	the
notes. 	However, 	she did discuss 	her discovery of 	the omission
with 	Henderson-Maine.
About 	the 	same 	time 	that 	Acosta-Santana 	became 	aware 	that
the 	group 	notes 	had 	not 	been 	turned 	in, 	she 	also 	found 	out 	that
Miller 	did not 	return 	the 	key to 	the 	room that 	she used 	for 	her
group 	sessions. 	This was 	also 	reported 	to 	Henderson-Maine who
asked 	one 	of 	the 	office 	secretaries 	to 	call Miller 	about 	the
notes 	and the 	key. 	Miller denies 	ever 	receiving 	a 	call 	about
either 	of 	these 	items. 	Although Miller 	returned 	the 	key to 	the
District 	sometime 	in July 	1986, 	the group notes were never
provided.
Acosta-Santana 	also 	felt 	that Miller 	had 	not 	shown
responsibility because 	she 	believed 	that Miller 	continued 	to
smoke 	in 	her 	office 	after 	Henderson-Maine 	asked 	her 	to 	refrain
from 	smoking 	in 	September 	1985. 	Although Acosta-Santana 	never
actually 	saw Miller 	smoking 	in her 	office, 	she 	smelled 	the 	odor
18

of 	smoke 	in 	the 	office 	on more 	than one 	occasion 	after
September 	1985. 	By her own 	admission during 	testimony, 	Miller
did 	smoke 	in her 	office 	a 	few times 	after 	receiving
Henderson-Maine's 	September 	1985 	memo. 	Miller 	characterized
herself 	as 	"addicted" 	to 	cigarette 	smoking 	and 	claims 	that
Henderson-Maine was 	aware 	of 	this 	problem when 	the memo was
issued.
Because of 	these 	factors, 	Acosta-Santa decided not 	to call
Miller 	anymore 	because 	she 	felt 	that Miller was 	not 	a
responsible person. 	According 	to Acosta-Santana, 	Miller's 	name
remained 	on 	the 	summer 	1986 	substitute 	teacher/counselor 	list
even 	though 	she was 	not 	called 	again that 	summer. 	There 	is 	no
evidence, 	however, 	which shows 	that Miller's 	name was 	placed on
the 	substitute 	list 	for 	the 	1986-87 	school 	year 	as 	Reuther's
June 9, 	1986, 	letter stated that 	it would be.
Sometime 	in January or 	early February 	1987 	Miller
telephoned 	Rose Alvarez 	to 	inquire 	about 	job 	information 	and 	to
request Alvarez' 	assistance 	in 	applying 	for 	any posted 	position
for which 	she was 	qualified. 	At 	that 	time Alvarez was 	the
designated HLPTA 	site 	representative 	at 	Proctor. 	Alvarez
informed Miller 	that Norman Rickman, 	who was 	a 	full-time
teacher/counselor 	and one of Miller's 	former 	co-workers, 	was
ill 	and unable 	to 	return 	to work. 	Since Alvarez 	had 	heard 	that
Rickman's 	position was 	going 	to 	be offered 	to 	Paul 	Ramsey, 	she
urged Miller 	to 	apply 	for 	the 	position 	immediately.
19

Miller, 	however, 	did not 	apply for 	the position. 	She did
speak with 	Ramsey who 	informed 	her 	that 	he 	had 	been 	offered 	the
position, 	but declined to take it. 	Subsequently, 	Linda
Rodriguez was 	hired 	to 	fill 	Rickman's 	position. 	Rodriquez'
previous employment 	relationship with the District, 	if 	any, 	is
unknown.
Between June 	1986 and April 	20, 	1987, 	the District hired
three 	part-time 	teacher/counselors 	in 	the 	alcohol 	treatment
program, 	in addition to Rodriguez. 	All 	of 	these 	individuals
submitted 	an 	application 	to 	the 	District 	prior 	to 	being 	hired.
Following 	her 	termination 	in June 	1986, 	Miller was 	eligible
for 	reemployment with the District. 	However, 	in order 	for 	her
to 	be considered 	for 	rehire, 	it was necessary for 	her 	to 	reapply
for 	a 	position. 	Miller 	did not 	apply for 	any position with 	the
District between June 	1986 	and April 	20, 	1987. 	She thought
that 	she was 	already 	in 	the 	applicant 	pool 	by virtue 	of 	the
statement 	about 	rehire 	in Reuther's June 	9, 	1986, 	letter 	to
her.
Sometime 	after 	June 	1987 Miller did 	apply 	for 	a 	position 	in
the District's 	jail 	program. 	This program, 	however, 	was 	not
under 	the direction 	of 	Henderson-Maine.
20

IV. 	ISSUES
1. 	Whether 	Charging 	Party has 	standing 	under 	the EERA to
file 	an 	unfair 	practice 	charge 	on 	her 	own 	behalf?
2. 	If 	so, 	did the District 	refuse to 	reemploy the Charging
Party because 	of 	her 	exercise 	of 	rights 	guaranteed 	by 	the 	EERA?
V. 	DISCUSSION AND CONCLUSIONS OF LAW
A. 	Charging 	Party's 	Standing 	to 	File An Unfair 	Practice 	Charge
Under 	EERA
The 	District 	argues 	that 	since 	the 	Charging 	Party 	alleges
that 	the 	discriminatory conduct 	took place 	subsequent 	to 	her
termination, 	the Charging 	Party 	is 	no 	longer 	an employee within
the meaning 	of 	the EERA 	and 	thus 	lacks 	standing 	to 	invoke 	the
protection of 	the Act. 	As 	a 	threshold matter, 	it 	is
appropriate 	to 	decide 	the 	standing 	question before 	proceeding
with 	an 	analysis 	of 	the discrimination 	issue.
Section 	3541.5(a) 	states 	that 	an unfair practice charge may
be 	filed 	by 	"[a]ny employee, 	employee organization or
employer. 	. . . " 	The Charging 	Party plainly 	is 	neither 	an
"employee organization" 	nor 	an 	"employer" 	as 	these 	terms 	are
defined 	by 	the 	EERA4. 	She must 	therefore 	fall 	within 	the
definition
4Section 3540.l(d) 	defines 	an 	"employee organization" 	as
. 	. 	. 	any organization which includes
employees 	of 	a 	public 	school 	employer 	and
which has 	as 	one of 	its 	primary purposes
representing 	such 	employees 	in 	their
21

of 	an 	"employee" 	in order 	to 	properly file 	and pursue 	an unfair
practice 	charge 	before 	PERB.
relations with 	that 	public 	school 	employer.
"Employee 	organization" 	shall 	also 	include
any 	person 	such 	an 	organization 	authorizes
to 	act 	on 	its 	behalf.
Section 3540.l(k) 	states 	as 	follows:
"Public 	school 	employer" 	or 	"employer" 	means
the governing board of 	a 	school district, 	a
school district, 	a county board of
education, 	or 	a county superintendent of
schools.
Section 3540.l(j) 	defines 	an "employee" 	as:
. 	. 	. 	any person employed by any public
school 	employer 	except 	persons 	elected 	by
poplar vote, 	persons 	appointed by the
Governor of 	this 	state, 	management
employees, 	and confidential employees.
In Hacienda 	La 	Puente Unified 	School 	District 	(1988) 	PERB
No. 	685, 	the Board 	recently considered the question of whether
the EERA protects 	hirees 	or 	applicants 	from discrimination 	and
concluded 	that 	it 	does 	not. 5 In that 	case 	the charging
party, 	an 	individual, 	filed 	an unfair practice charge on his
own behalf, 	alleging, 	among other things, 	that the District
5A 	petition 	for 	writ 	of 	review was 	filed 	on
July 25, 	1988, 	by the California Teachers Association in the
Second Appellate District, 	Division Four, 	Case No. 	B036106.
The Board has 	filed 	a motion to dismiss 	the petition. 	As 	of
the writing 	of 	this 	proposed decision, 	a 	ruling 	on the petition
was 	pending.
See 	also Los Angeles Unified School District 	(1988) 	PERB
Decision No. 	686, 	which was decided the same day as Hacienda La
Puente Unified School District, 	supra. 	In this 	case the Board
held, 	among other things, 	that the charging party, 	as 	ah
applicant, 	lacked 	standing 	to 	file 	an unfair 	practice charge,
since EERA's 	protection extends 	only to 	employees 	as 	defined 	by
the Act.
5
22

unlawfully 	refused 	to 	rehire 	him when 	he 	applied 	for
reinstatement 	because 	he 	had 	engaged 	in 	protected 	activities
prior 	to 	his 	termination 	from employment. 	In 	reaching 	the
determination 	that 	the Charging 	Party had 	no 	standing 	to 	invoke
the 	protection of 	EERA, 	the 	Board 	construed 	the 	term
employee 	in 	section 	3543.5(a) 	and 	the word 	employed 	in 	section
3540.l(j) 	as 	referring 	only to 	an 	individual 	already 	in 	an
existing 	employment 	relationship with 	a 	public 	school
employer, 	and not 	to 	an applicant 	or prospective employee. 	The
Board 	concluded 	that 	inasmuch 	as 	the 	charging 	party was 	not 	an
employee 	at 	the 	time that 	he 	applied 	for 	reemployment with 	the
District, 	his 	status 	as 	an 	applicant 	excluded him from coverage
under 	EERA.
In 	the present 	case, 	the Charging Party's 	continuous
employment with the District was 	severed on June 	13, 	1986.
There 	is 	no 	evidence 	that 	she 	reestablished 	an employment
relationship with 	the District 	after 	that 	date. 	This
conclusion 	is 	reached 	even 	though Adult 	Education Director
Reuther's 	June 	9, 	1986, 	letter to Miller 	stated that 	her name
would 	be 	carried 	on 	the 	substitute 	list 	for 	courts 	program
certificated 	staff 	for 	the 	summer 	of 	1986 	and 	the 	1986-87
school year.
Since Miller's 	name was 	carried 	on 	the 	substitute 	list
during 	the 	summer 	of 	1986, 	she was 	a 	potential 	hiree during
that 	time. 	However, 	she was 	not employed by the District.
Thus, 	her 	employment 	relationship with 	the Respondent was 	not
reestablished 	at 	any time during 	the 	summer 	of 	1986.
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.

' . . Y.
Between June 	1986 	and April 	1987 Miller 	did 	not 	reapply 	for
employment 	in 	the 	court 	programs 	or 	seek to 	clarify her 	hiring
status with 	the District. 	During 	this 	period 	she mistakenly
believed 	that 	she was 	already on 	the 	District's 	reemployment
list 	and 	thus 	should have been considered 	for 	rehire 	at 	the
same 	time 	that 	the 	other 	individuals were 	hired 	for
teacher/counselor 	positions 	between 	June 	1986 	and
April 	20, 	1987. 	Miller's 	confusion 	about 	her 	eligibility for
rehire 	is 	somewhat 	understandable 	in view of 	the 	rather
ambiguous 	statement 	in Reuther's 	June 	9, 	1986. 	The 	letter
stated 	that 	she would 	be 	considered 	for 	rehire 	if 	future
positions 	became 	available. 	But 	it 	did not 	advise her 	that
resubmission of 	an 	application was 	a 	prerequisite 	for 	future
hiring 	consideration.
Even 	in 	January or 	February 	1987 when Miller was 	urged 	by
her 	ex-coworker Alvarez 	to 	submit 	an 	application 	for 	a
full-time 	teacher/counselor 	position 	that 	the 	District 	was
going 	to 	soon fill, 	she 	failed to do 	so.
In 	summary/ 	the 	facts 	of 	this 	case 	show that Miller was 	not
employed 	by the District 	at 	the 	time 	of 	its 	alleged
discriminatory conduct, 	nor was 	she even 	an 	applicant 	for
reemployment 	during 	the 	relevant 	time 	in question.
Therefore/ 	under 	the 	standard 	adopted 	by 	the 	Board 	in
Hacienda La 	Puente Unified School District, 	supra, 	it can only
be 	concluded 	that 	the 	Charging 	Party was 	not 	an 	employee
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within 	the meaning 	of 	EERA when 	she 	alleges 	that 	the District
failed 	to 	offer 	her 	reemployment. 	She 	therefore 	lacks 	standing
to 	individually pursue 	an unfair 	practice 	charge 	under 	the
protection of 	section 3543.5(a). 	The entire Complaint must
therefore 	be 	dismissed.
Inasmuch 	as 	this 	case has 	been 	resolved on 	the basis 	of 	the
"standing" 	question, 	it 	is unnecessary to 	consider 	the merits
of 	the 	discrimination 	issues 	presented 	by 	the 	Complaint.
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
the entire 	record 	in this 	case, 	it 	is hereby ordered that 	the
Complaint 	is 	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 	timely 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 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
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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: 	August 30, 	1988
W. JEAN THOMAS
Administrative 	Law Judge
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